N.H. Rev. Stat. § 149-M:9 — NH Code / Title X / Chapter 149-M / Section 9
149-M:9 Permit Required.
Status: repealed

I. No person shall construct, operate, or initiate closure of a public or private facility without first obtaining a permit from the department. However, no permit shall be required for hauling or storing manure, if used as fertilizer. I-a. Persons maintaining or operating a motor vehicle salvage facility may elect to maintain and operate the facility under the provisions of the general permit established under RSA 149-M:59 instead of obtaining a standard permit under this section. Whichever permit is obtained under this chapter shall be in addition to a local license when required by RSA 236:111 through RSA 236:129. I-b. Persons operating a motor vehicle crusher, whether mobile or stationary, may elect to operate the facility under the provisions of the general permit established pursuant to RSA 149-M:60 instead of obtaining a standard permit under this section. Whichever permit is obtained under this chapter shall be in addition to a local license when required by RSA 236:111 through RSA 236:129. II. It shall be unlawful to transport solid waste to, or to dispose of solid waste at, any facility other than an approved facility. III. (a) Applications for permits shall be upon such forms and shall include such information as the department requires by rules adopted under RSA 149-M:7. The application information shall include, but not be limited to, a performance history of the applicant and of its officers and directors relative to the operation, financial security, and ownership of all facilities owned or operated by the applicant. Whenever requested by the department, the attorney general shall conduct a background investigation of the performance history and criminal record of the applicant and of its officers and directors, partners and individuals or entities having managerial, supervisory, or substantial decision-making authority and responsibility for the management of operations or activities for which a permit is being sought, if any, and make a report to the department. The cost of any investigation under this paragraph shall be borne by the applicant. The applicant shall also demonstrate that the proposed facility provides a substantial public benefit pursuant to RSA 149-M:11. (b)(1) The criminal background check shall consist of a fingerprint-based criminal record check of national crime information databases. The persons described in subparagraph (a) shall submit to the attorney general a criminal history records release form, as provided by the New Hampshire division of state police, which authorizes the release of the person's criminal records, if any. The person shall submit with the release form a complete set of fingerprints taken by a qualified law enforcement agency and payment required by division of state police regulations. (2) For the criminal record check required under this paragraph, the attorney general shall submit the person's fingerprints to the department of safety, division of state police, which shall conduct a criminal history records check through its records and through the Federal Bureau of Investigation. Upon completion of the criminal record check, the division of state police shall release copies of the criminal history records to the attorney general. IV. Each facility seeking a permit shall submit evidence that the facility includes separate provisions for the collection, reclamation, and disposal of motor vehicle waste. V. As a condition for any permit, the department may require payment of a reasonable fee, set by rules adopted under RSA 149-M:7. Such funds shall be used by the department for the purposes of this chapter. [Paragraph V-a repealed by 2022, 199:2 effective as provided by 2022, 199:3.] V-a. The department shall not issue a permit for the construction of a new landfill, excluding the expansion of existing landfills, unless the department makes a positive determination that the permit application is consistent with the state's solid waste plan that has been updated consistent with the requirements of RSA 149-M:29. V-b. The department shall not issue an approval for a new landfill or a landfill expansion unless the application includes as part of the facility's proposed operating plan leachate management procedures that provide for safe and effective management of leachate throughout the life of the facility, including the post-closure period. The leachate management plan shall include, at minimum, a description of how leachate will be collected and stored on-site, if and how it will be treated on-site, how it will be transported off-site, the type of leachate disposal facility the applicant proposes to use, a statement of the projected frequency of leachate transports per week, and contingency plans for leachate disposal capacity constraints. Before issuing an operating approval for a new landfill or a landfill expansion, the permittee shall provide the department with documentation of contractual arrangements between the permittee and at least 2 leachate disposal facilities demonstrating that the permittee will be able to comply with the leachate disposal provisions of its operating plan. The permittee shall promptly (1) notify the department if its contractual arrangements with a leachate disposal facility are modified in a way that affects the permittee's ability to comply with its operating plan and (2) provide the department with documentation of any contractual arrangement with any substitute leachate disposal facility entered into after the landfill or landfill expansion becomes operational such that the department has documentation of at least 2 current arrangements throughout the life of the facility, including the post-closure period. VI. No person shall operate a public or private facility who is not certified by the department. VII. The issuance of a facility permit by the department shall not affect any obligation to obtain local approvals required under all applicable, lawful local ordinances, codes, and regulations not inconsistent with this chapter. Local land use regulation of facility location shall be presumed lawful if administered in good faith, but such presumption shall not be conclusive. VIII. The department shall act upon each permit application within the time periods specified in rules adopted under RSA 149-M:7. For permits requiring a public hearing under rules adopted under RSA 149-M:7, once the department determines that an application is complete, in no case, without prior written agreement regarding an extension with the applicant, shall the department take longer than 180 days to issue or deny the permit. For permits that do not require a public hearing under rules adopted under RSA 149-M:7, once the department determines that the application is complete, in no case, without the prior written agreement regarding an extension with the applicant, shall the department take longer than 120 days to issue or deny the permit. Prior to such action, the department shall provide notice of the application by publication in at least one newspaper of general circulation in the community and on the department's Internet website, and an opportunity for hearing to interested persons. The applicant shall notify abutters of the public hearing in writing by certified mail, return receipt requested. The requirement of public notice and hearing shall apply at the discretion of the department to facilities or activities that will have an insignificant effect on environmental quality as defined by rule under RSA 149-M:7. IX. The department may deny a permit application under this section to a person if any of the following applies: (a) The person fails to demonstrate sufficient reliability, expertise, integrity, and competence to operate a solid waste facility. (b) The person has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of the permit application. (c) In the case of a corporation or business entity, if any of its officers, directors, partners, key employees or persons or business entities holding 10 percent or more of its equity or debt liability has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the 5 years before the date of the permit application. X. The department shall not issue a permit for a solid waste facility unless the facility meets the terms and conditions required in rules adopted by the commissioner. These terms and conditions include, but are not limited to, monitoring, contingency plans, closure, and evidence of financial responsibility in the amount set by the department after consultation with the commissioner of insurance. This amount shall be whatever is necessary to: (a) Protect the public health and welfare and the environment; and (b) Insure that appropriate measures will be taken to prevent present and future damage to the public health and safety or to the environment, in the event that the operations at the facility are abandoned, interrupted, or stopped. XI. All permits shall be continuous in duration, but may be terminated, suspended or revoked for cause as provided in this chapter. XII. No permit issued by the department under this section shall be transferred by the permittee to any other person without the prior written approval of the department. The following shall apply: (a) Applications for the transfer of permits shall be filed by the person to whom such permit is to be transferred upon such forms and shall include such information as the department requires by rules adopted under RSA 149-M:7. The application information shall include, but not be limited to, a performance history of the applicant and of its officers and directors relative to the operation, financial security, and ownership of all facilities owned or operated by the applicant. Whenever requested by the department, the attorney general shall conduct a background investigation of the performance history and criminal record of the applicant and of its officers and directors, partners, and individuals or entities having managerial, supervisory, or substantial decision-making authority and responsibility for the management of operations or activities for which a permit is being sought, if any, and make a report to the department. The criminal background check shall consist of and follow the same procedures set forth in paragraph III. The applicant shall also submit a statement that the proposed facility is consistent with the provisions of a district plan. The cost of any investigation under this paragraph shall be borne by the applicant. (b) The applicant shall notify abutters of any application to transfer a permit under this section. The department shall receive written comments from abutters on such application for the period of 30 days following notification of the filing of the application. The department, at the discretion of the commissioner, shall hold a public hearing no later than 30 days prior to making any final decision on an application to transfer a permit under this section. Notice of such public hearing shall be published in a newspaper of local circulation within the region of the public or private solid waste facility at least 2 weeks prior to such public hearing. XIII. (a) No permit issued by the department to a town with a population of 5,000 persons or fewer shall require the town to clean up an inactive, municipally-owned, unlined landfill (inactive facility) if the town: (1) Monitors the inactive facility in accordance with requirements established in RSA 485-C and RSA 149-M and rules adopted by the department. (2) Continues to show, through monitoring devices, that the inactive facility is having no adverse impact, as defined in rules adopted by the department, on the environment. (3) Has obtained approval of a closure plan from the department by January 30 of the calendar year in which the facility is scheduled to close by the department. (b) A town which complies with the requirements of subparagraph (a) shall not lose grant funding for which the town is eligible under this chapter. (c) This paragraph shall not apply to those facilities governed under the terms of 40 C.F.R. part 258. XIV. The department shall not certify as a waste-derived product the wood component of construction and demolition debris, or any mixture of or derivation therefrom, to be combusted in any manner, except : (a) Methane gas collected from the decomposition of waste at a facility authorized pursuant to this chapter as a landfill for the disposal of solid waste may be certified as a waste-derived product for distribution and use as a fuel, provided that it meets market fuel standards; (b) As allowed under RSA 125-C:10-c, II(d). XV. The department may enter into a written agreement with the applicant for the department to retain, at the applicant's expense, an independent licensed professional engineer or hydrogeologist to assist the department in determining what information is necessary to render the application technically complete, assessing during the technical review of the application whether it meets the requirements for approval in this chapter and the rules adopted under RSA 149-M:7, and ensuring that the department processes the application in a timely manner as required by this section. The applicant's failure to enter into such an agreement may be grounds to deny the application.