Massachusetts Recycler Files Suit Against New Hampshire C&D Burning Ban

New England Recycling (NER), a Taunton, Mass.-based mixed C&D recycling company, has filed a lawsuit against the state of New Hampshire over its laws that prevent burning C&D material.

The suit was filed Sept. 12 by NER and the CMRA Issues & Education Fund, the advocacy arm of the Construction Materials Recycling Association. The suit was filed in the U.S. District Court in Concord against the New Hampshire Department of Environmental Service Commissioner Thomas Burack and Attorney General Kelly Ayotte, claiming they are enforcing unconstitutional legislation.

The suit claims that the ban effectively stops the import of fuels derived from C&D material, which violates the Commerce Clause of the U.S. Constitution, which reserves the right to regulate interstate commerce to the federal government, according to attorney Lee Blais of the Mansfield, Mass.-based firm Blais & Parent.

The laws at the center of the suit began as temporary moratoriums on the burning of wood fuel derived from mixed C&D material that began in 2005. A permanent ban on the burning of C&D material was signed into law by New Hampshire Gov. John Lynch in 2007. (See “New Hampshire Bans Burning of C&D Debris.”) The suit claims these laws restrict interstate commerce by effectively impeding the importation of fuel derived from C&D material for the “protection of the failing New Hampshire virgin wood industry” and “keeping New Hampshire from becoming the ‘dumping ground’ of the Northeast.”

The suit also claims the logic behind banning the material over environmental concerns is flawed, maintaining that C&D fuel can be burned safely. The suit cites studies conducted by the Environmental Research Group of the University of New Hampshire that concluded C&D fuel can be burned safety.

“The University of New Hampshire studied the C&D issue and came out with research that demonstrated there was no negative environmental impact,” Blais says. “This fear is totally misplaced.”