Anyone who has taken a transmission line or a wind farm through New Hampshire’s Site Evaluation Committee (“Energy SEC”) knows the process is long, expensive, and can be fraught with complication. In exchange, the applicant receives a Certificate of Site and Facility – a single, controlling State permit to construct and operate an energy facility. All other State agency permits and approvals are folded into the Energy SEC process and the certificate it issues and all local authority is preempted. For this reason, practitioners commonly call it “one-stop shopping.”
House Bill 707, signed July 10 and codified at RSA 149-M:65 through 149-M:86, established a new Solid Waste Site Evaluation Committee (“SWSEC”) modeled in many ways on the Energy SEC, but with several important differences. For the first time, no new major solid waste facility may be built, and no existing facility significantly expanded, without first receiving a certificate from the SWSEC. The requirement applies to any “major solid waste disposal facility” with a proposed acceptance rate above 100,000 tons per year – not only landfills, but also transfer, processing, and storage facilities. For existing facilities, a certificate is required for changes that increase average permitted annual capacity by at least 50,000 tons or 100,000 cubic yards per year.
The certificate requirement is layered onto one of the most heavily regulated industries in the State. A modern lined landfill already operates under a DES Solid Waste Facility permit issued pursuant to the State Solid Waste Management Act, RSA 149-M, and the Env-Sw rules, which govern siting, design, construction, operation, and closure. That permit rests on detailed hydrogeologic investigation and engineered design, carries ongoing operating, inspection, and reporting obligations, and requires financial assurance sufficient to fund closure and long-term post-closure monitoring and maintenance, among numerous other technical requirements. Landfills must also meet Clean Air Act standards for landfill gas collection and control and hold State groundwater release detection permits and often federal stormwater permits. HB 707 changes none of this.
Thus, unlike the Energy SEC, the SWSEC is not a “one-stop shopping” forum – its certificate is additive to existing permitting requirements. A solid waste applicant still faces everything it faced before, plus a seven-member Committee chaired by the chair of the Waste Management Council and including the Commissioners of DES and Business and Economic Affairs (or, more likely, their designees) and four gubernatorial appointees confirmed by the Executive Council. Navigating two parallel permitting proceedings, each with its own requirements, record, and schedule, will require careful planning from project inception and design through construction.
The findings the SWSEC must make to grant a certificate will look familiar to energy developers and practitioners. The applicant must possess the financial, technical, and managerial capability to construct and operate the project, and the project must not unduly interfere with orderly development of the region. A second material difference from the Energy SEC lies in the next finding. Rather than asking whether impacts are unreasonable, the SWSEC must find that the public benefit of the proposed facility outweighs its adverse effects on human health, aesthetics, historic preservation, recreation, wildlife, noise, odor, traffic, property values and a range of other impacts enumerated in the statute. Such a balancing test gives opponents fertile ground to contest virtually any proposed solid waste facility, regardless of the demonstrated need for the disposal capacity it would provide.
The Legislature tempered the public benefit balancing test with a stated preference for expanding existing landfills and developing brownfields over opening greenfield sites, backed by a rebuttable presumption that an expansion of an existing landfill satisfies the capability, orderly development and benefit-versus-impact findings. Opponents bear the burden of rebutting the presumption. That is a meaningful advantage, but by no means a safe harbor. A presumption resting on a thin application record is an invitation to sophisticated, well-funded opponents. For this reason, expansion applications built to stand without the presumption will be better positioned.
Timing is a third difference, and it has a few dimensions. First, DES may not approve new capacity at major facilities until July 1, 2027, or until the Committee adopts rules, whichever is later. The statute sets no rulemaking deadline, and the moratorium is likely to run past mid-2027. DES can, however, continue to review solid waste facility permit applications in the meantime, which allows that work to proceed while the SWSEC process takes shape.
Second, RSA 149-M:72 provides that the SWSEC “shall” decide within 180 days after accepting an application (roughly half the Energy SEC’s one-year clock), but the Committee may suspend its deadlines whenever it finds suspension to be in the public interest, with no stated limit. For larger or high-profile projects, the 180-day deadline is likely to slip.
Third, SWSEC decisions are appealed, following mandatory rehearing, to the New Hampshire Supreme Court under RSA 541 and those appeals routinely take a year or more. DES Solid Waste Facility permits, by contrast, are appealed first to the Waste Management Council under RSA 21-O:14, whose final decisions are in turn appealable to the Supreme Court pursuant to RSA 541. Applicants thus face not only parallel permitting schedules – before DES and the SWSEC – but potentially parallel appeals. A contested project could realistically need two and a half to four years from completion of design to a final certificate and authorization to proceed.
A facility with fewer than five or six years of permitted capacity remaining may already be inside that window, which makes an expansion application a present rather than a future need. The upcoming SWSEC rulemaking will define what a complete application looks like, and those who follow or participate in it will gain an early view of the record the Committee will expect.
In establishing the SWSEC, the Legislature stated that “there is a compelling state interest in maintaining adequate, reasonably priced, and environmentally protective disposal capacity for solid waste generated in New Hampshire.” Whether the SWSEC – a second, additive layer of permitting review – advances that goal remains to be seen.