NCES vs. Bethlehem 2005 Outlook
In 2005, for the third consecutive year, Bethlehem will appropriate ten per cent of the Town's municipal budget in anticipation of the legal cost defending the Town from litigation initiated by Casella Waste Systems (CWS) for North Country Environmental Services (NCES). Things are turning around in Bethlehem's legal struggle with NCES, fighting for unlimited dump expansion. The Supreme Court ruled that local approval is needed before any further development can occur beyond the fifty one (51) acres subdivision, which was originally approved for a fourteen (14) acre landfill. The current modified Stage IV phase of NCES, located within the fifty one (51) acres, is permitted to reach capacity by June, 2006.

First, there is a Supreme Court remand back to the Grafton Superior Court on the constitutional question of whether or not towns can allow landfill use while distinguishing between two users, one being a private commercial operation and the other a municipality. Deciding if a NH Town can operate a local facility without leaving the municipality wide open for any commercial landfill, by having all other landfill related zoning ordinances preempted, makes this a landmark case potentially affecting any town in NH operating a municipal landfill. This case will be scheduled before the Superior Court early 2005, with a ruling by summer. The side with an unfavorable verdict will appeal the case to the Supreme Court and a final ruling is expected in the winter of 2006.

Second, there is not any other town in NH having an operating incinerator type device where the Department of Environmental Services (DES) has preempted local control. Bethlehem will go before the Supreme Court in 2005 because Commonwealth Bethlehem Energy (CBE), represented by same legal council as CWS, is claiming that RSA 125-I and DES laws regulating toxic air pollutants preempt local control. CBE constructed and operates the Liquid Gas Utilization Facility (LGUF) at NCES without a local building permit or site plan review.

Using hazardous landfill gases, which are comprised of fifty percent methane combined with inert gases including Volatile Organic Compounds (VOC), the LGUF evaporates two million five hundred thousand (2,500,000) gallons of leachate annually, containing heavy metals such as mercury and VOC suspended as liquids and solids. Toxic Action, a regional nonprofit environmental organization presented the CBE with their Dirty Dozen Award in 2004 for the LGUF, as one of the twelve worst polluters in New England, determined by an independent fifteen member Advisory Board.

Third, NCES in 2002, using a loophole in RSA 72-12, was awarded a ten percent (10%) property tax exemption for being a pollution control facility by the NH Attorney Generals office. DES recently released subsequent letters and memos between Commissioner Nolin of DES and the Attorney Generals asking for clarification of whether RSA 72-12 specifically allows a commercial enterprise to receive income by creating a hazardous waste landfill site in a town, while allowing that same profitable corporation a local property tax exemption, for controlling pollution.

Jennifer Patterson, Senior Assistant Attorney General wrote to Commissioner Nolin on March 16, 2004 explaining that "meets the legal standard an exemption - i.e., "whether it is a treatment facility, device, appliance, or installation wholly or partly for the purpose of reducing, controlling, or eliminating any source of air or water pollution"... RSA 72:12-a, I".

After Commissioner Nolin received Jennifer Patterson's opinion clarifying the legitimacy of the RSA 72-12 loophole, the DES ten percent (10%) ruling was overturned and NCES was awarded an eighty percent (80%) property tax exemption. The property tax basis went from over three hundred forty thousand dollars ($340,000) in 2003 down to twenty seven thousand dollars ($27,000) representing a ten percent (10%) reduction in municipal revenues. The Town's appeal, of DES overturning the property tax exemption, is expected to be heard before the Supreme Court in 2005.

NCES council has testified before NH House and Senate committees against proposed legislation designed to close the RSA 72-12 loophole, that allows private landfills property tax exception for performing pollution control, claiming that the Town somehow construed a 2002 appraisal on a brand new landfill and the tax rate rose disproportionately, "the Town increased property taxes by four thousand percent" (4,000%), never explaining it was because of a new landfill that increased revenues by five thousand percent (5,000%).

Each additional Stage of NCES is a new landfill, comparable to a new domed "factory building" encompassing several acres with a rubber tarp for the roof and floor. Each "solid waste factory" has a predetermined limited storage capacity. Once full, the roof is installed and the "solid waste factory" is sealed up indefinitely. A new facility needs to be constructed before any additional solid waste can be received.

Finally, there is a complex abatement case with NCES seeking an abatement of three hundred thousand dollars ($300,000) in paid 2002 property taxes, which is expected to involve expert witnesses over several days of testimony, before the Board of Tax and Land Appeals (BTLA). Bethlehem's appraisers used cost benefit analysis, a widely accepted appraisal method in NH, to determine that the Stage III landfill is valued at more than fourteen million dollars ($14,000,000). At the abatement hearing before the Select Board in June 2002 using a hypothetical land lease scenario to compare values, which is not an approved appraisal method in NH, NCES claimed the value of the Stage III landfill was one million six hundred thousand dollars ($1,600,000).

At the time, the pending Supreme Courts ruling could have limited the storage of solid waste to Stage II, which only had a few months of capacity remaining. Stage II was assessed using a rate of capitalization method based on gross revenues of less than a million dollars ($1,000,000). After the Supreme Courts ruling allowed the solid waste storage production to encompass all fifty one (51) acres; NCES built a new Stage III "solid waste factory". This provided NCES an additional five (5) years of solid waste collection capacity and an opportunity to accumulate over fifty million dollars ($50,000,000) in increased income, which at least half is profit, equivalent to net revenues of over five million dollars ($5,000,000) annually. The appeal of the NCES 2002 abatement request will be heard before the BTLA in 2005; the NCES 2003 abatement will go before the BTLA in 2006.

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Please accept the our sincere appreciation and for your continued support and encouragement.

Many Thanks Again,

Coordinator: Susan Stith, AWARE

Environmental Action for Northern New Hampshire
PO Box 268
Bethlehem, NH 03574