RSA 149-M:11 · Public Benefit Requirement

149-M:11 Public Benefit Requirement. –

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I.

The general court finds and declares as follows:

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(a)

It is responsible to provide for the solid waste management need of the state and its citizens.

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(b)

In order to provide for these needs, it must ensure that adequate capacity exists within the state to accommodate the solid waste generated within the borders of the state.

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(c)

Facilities necessary to meet state solid waste capacity needs must be designed and operated in a manner which will protect the public health and the state's natural environment.

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(d)

An integrated system of solid waste management requires a variety of types of facilities designed to accommodate the entire solid waste stream, including materials which can be recycled, recovered or reused, materials which can be composted, and residual materials which must be disposed of permanently.

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(e)

The enactment of statutes to address the needs identified in this section is an exercise of the police power granted to the general court under part II, article 5 of the New Hampshire Constitution.

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II.

The general court declares that it is the purpose of this chapter to ensure benefit to the citizens of New Hampshire by providing for solid waste management options which will meet the capacity needs of the state while minimizing adverse environmental, public health and long-term economic impacts.

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III.

The department shall determine whether a proposed solid waste facility provides a substantial public benefit based upon the following criteria:

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(a)

The short- and long-term need for a solid waste facility of the proposed type, size, and location to provide capacity to accommodate solid waste generated within the borders of New Hampshire, which capacity need shall be identified as provided in paragraph V.

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(b)

The ability of the proposed facility to assist the state in achieving the implementation of the hierarchy and goals under RSA 149-M:2 and RSA 149-M:3.

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(c)

The ability of the proposed facility to assist in achieving the goals of the state solid waste management plan, and one or more solid waste management plans submitted to and approved by the department under RSA 149-M:24 and RSA 149-M:25.

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IV.

The department shall also consider as part of its public benefit determination:

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(a)

The concerns of the citizens and governing bodies of the host municipality, county, and district and other affected persons. For any proposed solid waste facility, including transfer stations, designed to accommodate in excess of 30 tons of solid waste per day, the department shall hold at least one public hearing in the host municipality, or in the case of an unincorporated town or unorganized place in the host county, in order to take testimony to identify those concerns.

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(b)

The economic viability of the proposed facility, including but not limited to, its ability to secure financing.

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V.

In order to determine the state's solid waste capacity need, the department shall:

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(a)

Project, as necessary, the amount of solid waste which will be generated within the borders of New Hampshire for a 20-year planning period. In making these projections the department shall assume that all unlined landfill capacity within the state is no longer available to receive solid waste.

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(b)

Identify the types of solid waste which can be managed according to each of the methods listed under RSA 149-M:3 and determine which such types will be received by the proposed facility.

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(c)

Identify, according to type of solid waste received, all permitted facilities operating in the state on the date a determination is made under this section.

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(d)

Identify any shortfall in the capacity of existing facilities to accommodate the type of solid waste to be received at the proposed facility for 20 years from the date a determination is made under this section. If such a shortfall is identified, a capacity need for the proposed type of facility shall be deemed to exist to the extent that the proposed facility satisfies that need.

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VI.

All applicants under this chapter shall provide any information requested by the department. If an applicant declares that any information requested under this section should be considered exempt under RSA 91-A:5, IV, the attorney general shall determine the reasonableness of such declaration and, if the attorney general agrees, shall direct the department to treat it as confidential information which shall be considered exempt under RSA 91-A:5, IV.

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VII.

Any proposed solid waste facility to be owned and controlled by a solid waste district, or a member municipality on behalf of its solid waste district, shall be deemed to fulfill the requirements of subparagraph III(a), provided that it is built within the district and shall serve only the capacity needs of that district. Any permit issued for a facility which fulfills the public benefit requirement by relying on this paragraph shall state that the facility is limited to receiving solid waste generated within that district.

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VIII.

Each applicant for a solid waste permit under this chapter shall have the burden of demonstrating that a proposed solid waste facility provides a public benefit by showing how the proposed facility satisfies the criteria listed under paragraph III. Such demonstration shall be included as part of each application for a solid waste permit.

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IX.

If the department determines that an applicant has failed to demonstrate that it satisfies the criteria listed under paragraph III, it shall notify the applicant in writing that its application has been denied, and provide a written explanation of the reasons for that determination.

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X.

If the department determines that an applicant has demonstrated that it satisfies the criteria listed under paragraph III, it shall state that determination in any permit issued.

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XI.

Facilities permitted under this chapter shall be operated so as to provide a substantial public benefit consistent with the information submitted as part of the application concerning how the facility accommodates New Hampshire capacity needs. If a permittee cannot demonstrate consistency with information submitted in its permit application, and where it no longer meets needs identified in the state solid waste management plan and one or more solid waste management plans submitted to and approved by the department under RSA 149-M:25 due to circumstances beyond its control, as determined by the commissioner and the attorney general, the department shall not enforce this paragraph based solely upon such inconsistency. Source. 1996, 251:2, eff. Aug. 9, 1996; 251:28, eff. Aug. 9, 1996 at 12:01 a.m.

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