2012-0750, Appeal of Old Dutch Mustard Co., Inc.

Environmental Services (DES) to grant a permit to the intervenor, Pioneer Point upholding a determination by the New Hampshire Department of a decision of the New Hampshire Waste Management Council (C ouncil) BASSETT, J. The pe titioner, Old Dutch Mustard Co., Inc., appeals from

and orally), for the intervenor, Pioneer Point Enterprises, LLC. Gottesman and Hollis, P.A., of Nashua (Paul M. DeCarolis on the brief

Environmental Services. attorney general, on the brief), for the New Hampshire Department of Michael A. Delaney, attorney general (Mary E. Maloney, assistant

petitioner, Old Dutch Mustard Co., Inc. and Robert P. Cheney, Jr. on the brief, and Mr. Turner orally), for the Sheehan, Phinney, Bass + Green, P.A., of Manchester (John - Mark Turner

(New Hampshire Waste Management Council) AP PEAL OF OLD DUTCH MU STARD CO., INC.

No. 2012 - 750 Waste Management Council

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of an y Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subj ect to motions for rehearing under Rule p. 2 22 as 2

Laws p. 2 2011, 224:382. Act (SWQPA). We use the CSPA because that was the title in effect at the time of the appeal. In 2011, the l egislature amended the title of the CSPA to the Shoreland Water Quality Protection *

itself did not violate the p. 2 250 - foot setback; (2) failed to rule that because of concluded that only Unit 2 constituted the facility, or, alternatively, that Unit 2 The petitioner appeals, arguing that the C ouncil erred when it: (1)

for rehearing. would improve safety. The Co uncil subsequently denied the petitioner ’s motion comprised only Unit p. 2 2 and not the entire building. It found that the waiver be used for handling and disposing of solid wa ste, the solid waste facility circumstances of this case. The Council found that because only Unit 2 would permit and waiver was either unreasonable or unlawful under the t he Council ruled that the petitioner failed to prove that the issuance of the Pioneer intervened and participated in the two - day hearing. After the hearing, C ouncil pursuant to RSA 21 - O:14, I - a (Supp. 2013) and RSA 21 - O:9, V (2012). T he petitioner appealed the issuance of the permit an d waiver to the

granted the waiver. systems. D ES issued Pioneer a permit to operate the solid waste facility and stove, roofing and a water meter. I n Unit 1, it renovated the electrical and fire installing in Unit p. 2 2 new bathrooms, windows, insulation, flooring, a pellet While its application was pending, Pioneer began work on the building, this proposal, o nly part of Unit 3 would encroach on the 250 - foot river setback. solid waste activities, and preventing internal acce ss between the units. Under divide the building into three units, utilizing only the center unit, Unit 2, for driveway within fifty feet of the petitioner ’s property. Pioneer proposed to application, accompanied by a request for a waiver to build a new access Approximately six months later, Pioneer submitted an amended

requirement for solid waste facilities specified in the RMPA. the permit, concluding that the proposed facility violated the p. 2 250 - foot setback planned to utilize the entire building for solid waste ope rations. DES denied See RSA ch. 483; RSA ch. 483 - B. In its application, Pioneer represented that it River is subject to the protection measures set forth in the RMPA and CSPA. RSA ch. 483 - B (2013 & Supp. 2013). As a “designated river,” the Souhegan * (2013), and under the Comprehensive Shoreland Protection Act (CSPA), see Hampshire Rivers Management and Protection Act (RMPA), see RSA ch. 483 Greenville. The Souhegan River is a “designated river” under the N ew management facility in a n existing structure near the Souhegan River in undisputed. I n May 2008, Pioneer applied for a permit to operate a solid waste The following facts are taken from the record or are otherwise

to the petitioner’s property. We affirm. Enterprises, LLC (Pioneer), to build and operate a solid waste facility adjacent p. 3 3

the statute or regulation is clear on its face, its meaning is not subject to and ordinary meaning. Id.; Marino, 155 N.H. at 71 p. 3 3. When the language of regulation itself, and, if possible, construe that language according to its plain statutes and regulations. Id. We first look to the language of the statute or We use the same principles of construction when interpreting both

(quotation omitted). regulation and with the purpose which the regulation is intended to serve.” Id. interpretation to determine if it is consistent with the language of the Dep’ t of Revenue Admin., 156 N.H. 781, 78 p. 3 3 (2008). We “examine the agency ’ s a ccorded deference, our deference is not total.” Vector Mktg. Corp. v. N.H. Nonetheless, “[w] hile an agency’s interpretation of its regulations is to be entitled to deference.” Appeal of Town of Seabrook, 163 N.H. 635, 644 (2012). interpretation of a statute by the agency charged with its administration is 125 (2013). However, “it is well established in our case law that an as a whole.” Appeal of Lake Sunapee Protective Ass’n, 165 N.H. 119, the intent of the legislature as expressed in the words of a statute considered Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007). “We are the final arbiter of We review an agency ’ s interpretation of a statute de novo. See N.H. Dep ’ t of Resolving these issues requires statutory and regulatory interpretation.

250 - foot setback. C ouncil erred because the acc essory structures for Unit 2 encroach on the Alternatively, i t contends that even if only Unit 2 constitute s the facility, the processing, treatment, or disposal of solid waste.” RSA 149 - M:4, IX. system, or physical structure for the collection, separation, storage, transfer, contends that the entire building — not just Unit 2 — constitutes a “location, term “facility” as used in RSA 149 - M:4, IX (2005) to encompass only Unit 2. It T he petitioner first argues that the C ouncil erred when it interpreted the

I. Meaning of “Facility”

541:1 p. 3 3. of the evidence before it, that such order is unjust or unreasonable.” RSA except for errors of law, unless the court is satisfied, by a clear preponderance lawful and reasonable,” a nd the decision “shall not be set aside or vacated chapter 541). The C ouncil’s findings of fact “shall be deemed to be prima facie III (2012) (providing that appeals of Council decisions are governed by RSA was “clearly unreasonable or unlawful.” RSA 541:13 (2007); see RSA 21 - O:14, T o prevail on appeal, the petitioner must show that the C ouncil ’ s order

standard. waiver; and ( p. 4 4) reviewed the waiver of the driveway setback under an incorrect failed to consider the impact on the petitioner of grant ing the driveway setback Pioneer’s pre - permit construction, DES was required to deny the permit; ( p. 3 3) 4

solid waste processing. Therefore, “the overriding purpose of the Pioneer Point Alternatively, it argues t hat the only activity now occurring in the building is the purposes or goals of the entire building is to conduct solid waste activi ties. Hence, the petitioner argues that the entire building is a facility because o ne of “exclusively for,” “only for,” or “solely for” when it intends an exclusive purpose. for” into the statute. It contends that the l egislature uses the terms and that the Council is essentially reading the words “entirely devoted” or “only The petitioner counters that “‘ for’ does not imply an exclusive purpose,”

C ouncil and DES to consider only Unit 2 as the facility. solid waste collection and treatment, they argue that it was reasonable for the within the setback. Because Unit 2 is the single unit used for the purpose of from the other units, and that Unit 3 is the only part of the building that is objective or purpose of.” DES and Pioneer contend that U nit 2 is independent facility. DES argues that the word “f or” in the definition means “with the DES and Pioneer argue that, under the statute’s definition, Unit 2 is the

treat the entire structure as a solid waste facility.” physical features with the remainder of the buildin g . . . is not sufficient to The C ouncil con cluded that “[t]he fact that Unit #2 shares certain common constitutes the solid waste ‘facility’ within the meaning of RSA 1 p. 4 49 - M:4, IX.” devoted to the handling and disposal of solid waste, but not the entire building, [DES] reasonably and lawfully concluded that Unit #2 and its related features solid waste.” The C ouncil found, “under the circumstances of this case, that collection, separation, storage, transfer, pro cessing, treatment, or disposal of IX defines “facility” as “a location, system or physical structure for the Unit 2 — constitutes a facility under the RMPA and the CSPA. RSA 149 - M:4, The i ssue before us is whether the entire building — rather than only

A. The F acility

of the reference line of public waters.” RSA p. 4 483 - B:9, IV - d (20 13). CSPA states that “[n] o solid waste facility shall place solid waste within 250 feet (20 13); s ee also RSA 483:9 - a, VII, :9 - aa, VII, :9 - b, VII (20 13). Furthermore, the from the normal high water mark of a designated natural river.” RSA 483:9, VI facility, as defined in RSA 149 - M:4, IX shall be set back a minimum of 250 feet The RMPA provides that “[a] ny new solid waste storage or treatment

advanced by the entire statutory and regulatory scheme. Id. commissioner’s intent in enacting them, and in light of the policy sought to be Id. Our goal is to apply statutes and regulations in light of the l egislature ’ s or the context of the overall statutory and regulatory scheme and not in isolation. see fit to include. Id. Furthermore, we interpret statutes and regulations in l egislature or commissioner might have said nor add words that they did not modification. Marino, 1 p. 5 55 N.H. at 713. We will neither consider what the 5

not contend that activities conducted at the solid waste facility would pollute leachate off the property in sealed containers. Indeed, t he petitioner does discharge any pollutants into the surface waters.” Pioneer will transport any permit application, t he facility was “designed to be self contained a nd not to integrity of the public waters occur s within the setback. According to the (20 13). Here, none of the solid waste activities that might pollute or harm the sediment, organic matter, pesticides, and other pollu tants.” RSA 483 - B:1, I, I - a integrity of public waters” and to “remove or minimize the effects of nutrients, aesthetic.” RSA 483:1 (20 13). The purpose of the CSPA is to “maintain the hydropower, cultural, historical, archaeological, scientific, ecological, [and] the rivers] including recreational, fisheries, wildlife, environmental, social asset s . . . [and] to conserve and protect outstanding characteristics [of Hampshire rive rs as valued ecologic, economic, public health and safety, and T he RMPA is intended to “ensure the continued viability of New

building did not. to conclude that although all of Unit 2 constituted the facility, the entire U nit 2 is discrete from the other units, it was not unreasonable for the Council inside Unit 2 that are not used for waste handling and disposal. Given that Rather, it applied the term to the entirety of Unit 2, including th ose areas location, structure, or system that are used for waste handling and disposal. its interpretation of the meaning of “facility” solely to those areas within a misinterprets the Council’s interpretation. The Council did not narrowly limit sorting and storage areas.” We reject the petitioner’s argument. The petitioner regulations “list[] numerous facility f eatures, only two of which are waste more than its waste handling and disposal areas.” It contends that DES’ s roughshod over the statutes but also DES’ rules that make clear a facility is The pe titioner argues that the Council’s interpretation “not only runs

given a statute of doubtful meaning” (quotation omitted)). Co., 1 p. 5 56 N.H. 429, 434 (2007) (stating “we only accord substantial deference the term “facility” applies only to Unit 2. See Grand China v. United Nat’l. Ins. Council’s interpretation and its conclusion that, under these circumstances, the meaning of “facility” is reasonable, we accord substantial deference to the to shed light on this ambiguity, and given that the Council’s determination of intended meaning of the term “facility.” Because there is no legislative history h owever, the legislative history of RSA 149 - M:4 provides no guidance as to th e Leader Corp. v. N.H. Ret irement Sys., 162 N.H. 673, 677 (2011). H ere, in our interpretation of the me aning of the statu tory language. S ee Union 470 (2012). Under such circumstances, we turn to the legislative history to aid are reasonable, the statute is ambiguous. See State v. Lathrop, 164 N.H. 468, We conclude that because both proffered interpretations of the statute

deemed a facility within the meaning of the statute. building and site is solid waste management,” and the entire building must be p. 6 6

roads within the setback. plain language of the statute allows accessory structures such as drains o r including but not limited to paths [or] driveways.” RSA 483 - B: 4, II (2013). The customarily incidental and subordinate to the primary structure. . . or a use, defines “accessory structure” as “a structure. . . on the same lot and feet of the reference line of public waters.” RSA 483 - B:9, IV - d. The CSPA conduct other activities consistent with the operation of the facility within 250 permitting conditions under R SA 149 - M:9, to erect accessory structures and The CSPA states that “any solid waste facility may be allowed, subject to

the Council. would una voidably be breached by operation s of the trucks.” We agree with It also found that the petitioner “had failed to prove that the 250 - foot setback contemplated by the setback exceptions” and allowed under RSA 483 - B:9, IV - d. violate the CSPA and the RMPA because “drainage systems such as these are The C ouncil concluded that the proposed accessory structures did not

the north side of t he building. the rear of the building and would allow fire trucks to reach the fire hydrant on the setback on the eastern side of t he property, which would provide access to that crosses into the setback. Pioneer also proposes to construct a road within Unit 2 empties into a detention pond, w hich is drained by a twelve - inch culvert through, and discharge water within, the 250 - foot setback. Also, a drain from setback. The entire building, including Unit 2, has drainage pipes that run The re is no dispute that there are accessory structure s within the

part of Unit 2. We agree with DES and Pioneer. respond that the petitioner is improperly treating the accessory structures as a structures are part of Unit 2, the facility violates the setback. DES and Pioneer en c roach into the setback. According to the petitioner, b ecause accessory the drainage pipes originating in Unit 2, as well as the eastern access road, T he petitioner nex t argues that even if the facility consists only of Unit 2,

B. Accessory Structures

was clearly unreasonable or unlawful. the circumstances of this case, the C ouncil’s construction of the term “facility” In sum, we conclude that the petition er has failed to show that, under

the RMPA and the CSPA. its interpretation is consistent with the l egislature’s stated purpose in enacting “facility” would not include solid waste activities occur ring within the setback, the Souhegan R iver. Given that the Council’s interpretation of the term p. 7 7

to establish drainage and similar structures within the setback [RSA 483 - B:9, IV - d] appears to allow existing solid waste f acilities

footnote: setback. RSA 483 - B:9, IV - d. Indeed, the petitioner concedes this point in a “consistent with the operation of the facility,” are allowed within the 250 - foot requirement for facilities, but rather clarifies which structures or uses, B:9, IV - d. The statute does not provide for an exception to the setback B:9, IV - d. However, this argument does not reflect the purpose of RSA 483 no reason for the l egislature to grant a n exception to the setback” in RSA 483 facility, “there would be no encroachment on the setback and thus absolutely The petitioner contends that if “accessory structures” are not part of a

foo t setback. not violate the RMPA requirement that a facility not be located within the 250 - Consequently, we conclude that the construction of accessory structures does “facility” that differs from and is inconsistent with that of the CSPA. accessory structures, we decline to read the RMPA to employ a definition of RMPA contains no language mandating that a facility be regarde d as including that accessory structures are distinct from the facility itself. Given that the structures as “incidental” and “subordinate” to th e “primary structure” denotes w aste facilities to construct accessory structure s and defines accessory acc essory structures.” RSA 483 - B:9, IV - d. The fact that the CSPA allows solid T he CSPA provides that a “solid waste facility may be allowe d. . . to erect

as a part of a unified cohesive whole”). v. Babcock, 121 N.H. 185, 190 (1981) (“statutes in pari materia should be read that one statute does not permit what the other statute prohibits. See Williams RM PA can regulate the same bodies of water, we construe them together so omitted). A ccordingly, because, a s this ca s e demonstrates, the CSPA and Barrington, 156 N.H. 80 p. 7 7, 812 (2008) (quotation, brackets, and ellipses reasonable results and do not contradict each other.” Grant v. Town of “W e construe statutes, where reasonably possible, so that they lead to

feet.” Id. (emphasis added). facility, as defined in RSA 149 - M:4, IX shall be set back a minimum of 250 RSA 4 p. 8 83:9, VI. The R M PA states “[a]ny new solid waste storage or treatment It does not ban accessory stru ctures, which are distinct from the facility itself. because t he RMPA bans only a facility from being within the 250 - foot setback. therefore, the RMPA’s more stringent standards must apply. We disagree facilit ies within the setback, that no exceptions are permitted, and that, setback established by the RMPA.” It contends that the RMPA prohibits exceptio n [,]. . . the exception is to the CSPA’s setback not to the separate The petitioner argues that even if this language “constituted a setback 8

has no legal right to the subject property; or (5) the application meets any other questionable reliability, expertise, integrity, and competence; (4) the applicant within five years prior to the date of the permit ap plication, or is of is insufficient, ambiguous or dormant; (3) the applicant is a felon convicted fails to comply with statutory and regulatory requirements; (2) the application added.) DES is compelled to deny a permit only if: (1) the proposed activity will: (a) Comply with this chapter and all rules adopted under it.” (E mphasis only if it determines that the facility or activity for which the permit is sought M:12, I(a) (2005), “[t]he department shall approve an application for a permit adopted by the commissioner.” (E mphasis added.) Moreover, under RSA 149 facility unless the facility meets the terms and conditions required in rules (2005) states that “[t]he department shall not issue a permit for a solid waste t he grounds for denying a permit are outlined elsewhere. RSA 149 - M:9, X deny a permit when an applicant engages in pre - permit construction. Indeed, I, prohibits pre - permit construction, it contains no language requiring DES to without first obtaining a permit from the depa rtment.” Although RSA 149 - M:9, person shall construct, operate, or initiate closure of a public or private facility petitioner’s argument. RSA 149 - M:9, I states, in pertinent part, that “[n]o The plain wording of the statutes and regulations leads us to reject the

provisions. involving solid waste collection and management prohibited by those and Pioneer contend that Pioneer did not engage in any pre - permit activities which the pe titioner cites do not compel denial of a permit. Alternat ively, DES regulation, required DES to deny the permit. DES responds that the provisions Pioneer ’s “blatant violations” of RSA 149 - M:9, I (2005) and the applicable of the permit given Pioneer’s pre - permit construction activity. It argues that The petitioner argues that the C ouncil erred in upholding DES’ s issuance

and paved a drop - off area. water meter. Pioneer also renovated the electrical and fire system s in Unit 1, flooring, a pellet stove, roofing over the used motor oil acceptance area, and a 2010. I n Unit 2, Pioneer installed new bathrooms, windows, insulation, Pioneer began construction before receiving the DES permit in October

II. Pre - Permit Construction

ac cessory structures within the setback. Council acted unreasonably or unlawful ly in allowing Pioneer to build the CSPA, we conclude that the petitioner has failed to demonstrate that the and their construction within the setb ack does not violate the RMPA or the Given that accessory structures are not included in the definition of a “facility,”

: p. 9 9, IV - d, against placing solid waste within the setback. without violating the prohibition established in the first half of 9

Point’s intended use of the parcel, but furthermore, it actually created, driveway entrance. . . within the 50 - foot setback benefited Pioneer [w]itnesses for the State and [Pioneer] testified. . . that locating the new

explain ed that: that the petitioner failed to meet it s burden of proof. In its order, the Council operations. In upholding the issuance of the waiver, the Council concluded whether the proposed driveway entrance would affect the petitioner’s appealed to the C ouncil, arguing that DES erred when it fail ed to consider Admin. Rules, Env - Sw 403.02(b). DES granted the waiver. The petitioner that a solid waste facility be “no less than 50 feet from any property line.” N.H. petitioner’s property, Pioneer requested a waiver of the regulation that requires In order to construct a driveway entrance within fifty feet of the

III. Waiver

engage in activity prohibited under the relevant provisions. this reason, we need not address the alternative argument that Pioneer did not the fact that Pioneer may have conducted pre - permit construction activity. For unreasonable or unlawful for the Council to issue the permit, notwithstanding Accordingly, we conclude that the petitioner has not show n that it was

ultimately fails to secure a permit. construction activity is exposed to the risk of losing its investment if it 164 N.H. 6 p. 9 96, 698 (2013). We also note that the entity that begins operat ion of a solid waste facility. See RSA 149 - M:15, III (2005); State v. Guay, M:16 (2005). An entity may also be convicted of the misdemeanor of unlawful impose an administrative fine of up to $2,000 for each violation. See RSA 149 violate RSA 149 - M:9, I with impunity. T he commissioner is authorized to We observe that our interpretation does not mean that an entity can

the permit. DES deny a permit if an applicant engages in construction prior to receiving and regulations. T hus, t h ere is no statutory or regulatory requirement that 483:B - 7, IV - d. Construction is not an “activity” within the scope of the statute and manage ment of a solid waste facility. See RSA 14 p. 9 9 - M:12, I(a); RSA contemplated is that for which the permit is sought — namely, the operation waste facility. N.H. Admin. Rule s, Env - Sw 305.03(b). The “activity” comply with the statutory and regulatory requirements for operation of a solid permit if the facility or activity conducted within the facility fails or will fail to The plain language of the above - cited provisions requires DES to deny a

Env - Sw 305.03(b). provision for denial as specified in the solid waste rules. N.H. Admin. Rule s, p. 10 10

Therefore, DES and the Council w ere not compelled to accept the opinion of the judgment based upon the evidence presented.” I d. (quotation omitted). “Whether it should rely upon the expert testimony. . . is a matter for its witnesses.” Appeal of Pennichuck Water Works, 160 N.H. 18, 26 (20 p. 10 10). “compelled to accept the opinion evidence of any one witness or group of cause problems with traffic circulation, DES and the Council we re not proposed layout was inadequate to allow proper vehicle maneuvering and could Although t he petitioner introduced a n expert report stating that the

steep. granting a waiver for the new driveway, because the existing driveway was very explained to the Council, using the existing driveway was “les s safe” than property to make a “better intersection.” Moreover, as a DES empl oyee the traffic and specifically requested that the road be closer to the petitioner’s testified at the hearing before the Council that the T own of Greenville examined inhibit the traffic flow on neighboring public stre ets.” Pioneer ’s engineer “[a] ny queuing of traffic will occur on the facility site and, as a result, will not estimated that fifteen vehic les would visit the property in an hour and that directions and will not obstruct the flow of the general traffic.” Pioneer entrance allows for the safe ingress and egress of vehicles coming from both and waiver application, Pioneer explained that “[t] he turning radius for the the Council to a ssess the effect on traffic of granting the waiver. In its permit information in both its permit application and at the hearing to allow DES and of traffic on the abutter, the record establishes that Pioneer provided sufficient E ven if we were to assume that DES was required to consider the imp act

overall impact of the waiver on the abutter, and it did so in this case. language, DES is required only to make a determination as to the relative complying with the rule.” N.H. Admin. Rule s, Env - Sw 202.04(a). Given that properties that is more significa nt than that which would result from may grant a waiver from a rule if it will “[n]ot result in an impact on abutting DES interview the petitioner or perform a traffic impact analysis. Rather, DES We disagree. N othing in the applicable regulations or statutes require that [waiver] would interfere with [the petitioner’s] shipping.” (Q uotation omitted.) “did not do any sort of analysis as to whether locating the driveway with a did not interview the petitioner, did not perform a traffic impact analysis, and setback waiver. Specifically, the petitioner contends that DES erred because it whether DES had failed to consider the impact on its business of a driveway On appeal, the petitioner argues that the C ouncil erred in not deciding

of the proposed driveway. The Council further noted that the Town of Greenville had granted an approval

adjacent properties as well. for a number of reasons. . . a safer access to the subject property and p. 11 11

DALIANIS, C.J.