CLAREMONT — The company seeking to accept up to 2,500 tons of construction and demolition material weekly at its Claremont facility filed an appeal Monday of the Department of Environmental Services’ denial last month of the company’s permit modification.
The Boston-based Conservation Law Foundation, which has an office in Concord, also has filed an appeal in the case, describing DES’s denial as the “right decision but for incomplete reasons.”
In the Monday appeal, Recycling Services and its owner, Acuity Management of Methuen, Mass., dispute the state’s May finding that trucks carrying the materials would obstruct traffic and the current recycling operation. It also argued that it should not be required to obtain a waiver in order to accept construction and demolition materials.
The “obstruction” is “nothing more than trucks crossing and turning through an intersection with Industrial Boulevard, said Bryan Gould, the Concord attorney for Recycling Services who filed the appeal, said.
“The fact that a truck is longer than the width of the road does not constitute obstruction simply because at some point as it crosses the road it extends across it,” Gould wrote. “To be an obstruction, the truck must actually block traffic. NHDES made no such finding.”
The appeal is the latest in the ongoing controversy over the company’s proposal to construct a new building next to the rail siding at 43 Industrial Blvd. on a narrow, 1-acre parcel with no frontage. The property sits across the street from the company’s recycling facility at 38 Industrial Blvd that was permitted in the late 1980s.
As proposed, the construction and demolition debris would be dumped on a concrete floor with recyclable material removed and the remainder loaded onto rail cars and sent to a landfill in Ohio. The application from Recycling Services estimates there would be about 48, 35-foot trucks coming to the facility five days a week.
In May, Michael Wimsatt, director of the Waste Management Division at DES, determined that the proposed C&D facility would violate New Hampshire Administrative Law prohibiting the safe flow of traffic on public roads.
The trucks crossing from 38 Industrial Blvd to the newly constructed facility for dumping the debris would create an obstruction on the road, Wimsatt said in his six-page letter dated May 22 explaining the denial. Each truck would enter 38 Industrial Blvd. to be weighed, then cross to 43 Industrial Blvd. to dump the material and cross the road again to be weighed a second time.
Each vehicle, Wimsatt said, would “completely obstruct the public road” and if operated as requested, would total 96 obstructions each day.
But Gould argued that DES never determined that trucks crossing the road would obstruct the safe flow of traffic and improperly assumed the trucks would either stop while crossing the road or would pull out into oncoming traffic.
Gould also disputed the DES finding that having the trucks first enter at 38 Industrial Blvd. to be weighed would disrupt the recycling operation.
“NHDES did not provide any reasons as to why or how the proposal would interfere with the operations of the 38 Industrial Boulevard facility, and it goes beyond the scope of the rule to deny any application on the ground that the applicant would adversely affect its own operation,” Gould wrote in the seven-page appeal.
Regarding a request for a waiver of a 50-foot setback requirement, Gould said exceptions “shall be allowed” under the DES administrative code if the facility was issued a permit before 2024 and has been in continuous operation. Gould noted that the DES decision would mean the existing facility could not operate if it were ever sold.
While Recycling Services currently operates within the setback, it must seek a waiver because it is proposing to build a new facility at 43 Industrial Blvd, Wimsatt said in his May 22 letter of denial.
For its part, CLF, in its seven-page appeal, argues that DES’s Waste Management Bureau was too “narrow in scope” in its decision and should have included other reasons for the denial, including Recycling Services trying to circumvent local zoning approvals, which were never obtained, the widespread public opposition to the facility and the “adverse environmental impacts that threaten human health.”
DES should have gone further in its grounds for denial, including citing the two denials by the Claremont Zoning Board of the company’s application for a C&D facility, Heidi Trimarco, an attorney with the Conservation Law Foundation, said in the filing.
“DES erred in failing to determine that Acuity cannot advance this project without obtaining local approvals,” Trimarco wrote.
The CLF appeal also claims the size and scope of the expanded operation is not a modification but is an “entirely new waste facility.” Trimarco asserted that the proposed operation would handle 130,000 tons of debris a year, an increase of 2,500 times from the current operation and should be considered a new facility. As a new facility, it would need to obtain a new permit, not the permit modification DES denied.
“Acuity’s proposal — to change operations to process a currently prohibited waste stream, at an enormously greater scale — is not a permit modification but rather a departure from the current permit entirely,” Trimarco wrote.
In its reasons for denial, DES also should have included the fierce local opposition to the company’s plan, including a public hearing in March that drew about 400 people to the opera house with all speakers demanding DES deny the modification, Trimarco wrote. Project opponents have asserted that the facility would cause adverse environmental and health impacts, including noise, odor and dust, and processing tons of materials containing lead would harm soils, wetlands, a nearby brook and groundwater.
“DES should have given sufficient weight to the public opposition, as required by statute, and determined that the facility will not provide a substantial public benefit,” Trimarco wrote.
Patrick O’Grady can be reached at pogclmt@gmail.com.
CORRECTION: The Boston-based Conservation Law Foundation, which has an office in Concord, has filed an appeal of a decision by the New Hampshire Department of Environmental Services to deny Acuity Management a permit for construction and demolition operation at Recycling Services in Claremont. A previous version of this story included an incorrect name for the foundation and was unclear about where the foundation is based.
