Judge Says Coakley Landfill Group Must Follow State Public Meeting Law

Sep 26, 2018

The cap of Coakley Landfill in spring of 2018.
Credit Annie Ropeik / NHPR

A Superior Court judge says New Hampshire's right-to-know laws should apply to the towns and businesses in charge of cleaning up the Coakley Landfill Superfund site.

The Coakley Landfill Group, or CLG, includes the municipalities and companies that contributed to pollution at the landfill.

They signed a court settlement with the Environmental Protection Agency when the site first became a Superfund, and formed the landfill group as a public-private partnership to carry out the settlement’s terms – a common approach at multi-party Superfunds.

Portsmouth holds the majority share of the group’s responsibility. The city’s attorney, Bob Sullivan, must attend all meetings of the group’s three-person executive committee.

He and two out-of-state lawyers routinely vote on decisions at Coakley, discuss how to carry out the EPA’s wishes, and sign checks to fund the work.

The judge’s ruling, issued Tuesday, says the group’s structure gives Portsmouth more control than any other entity over cleanup, which is one reason the Landfill Group must begin acting as a public entity.

Sullivan says that'll be a complicated change for the executive committee.

"The right-to-know law would prohibit a phone conference, and yet we've done all our business for 27 years by means of phone conferences,” Sullivan says.

Now, they’ll have to publish advance notice of any meetings with an official quorum – which can mean Sullivan and just one other member.

The public and media will have to be able to attend the meetings, with the Landfill Group members attending in person and publishing meeting minutes. They can still hold closed executive sessions and take other exceptions described in state law.

The court’s ruling pointedly did not address how the change might affect the Landfill Group’s dealings with the EPA, which is not subject to New Hampshire’s laws.

Still, Sullivan says the ruling will be particularly difficult for the landfill group’s private members – including small local businesses, and big ones like Eversource and Waste Management.

“The private members of the Landfill Group are not accustomed to having their activities made public,” Sullivan says. “By contrast, the public members – the cities and the towns – are quite used to their activities being made public.”

A lawyer for some of the private members deferred comment on the ruling to Sullivan.

Potential precedent

Sullivan says the Landfill Group is talking to its own lawyers about how to handle the changes for next time they need to meet.

He also said they don’t know yet if they’ll appeal the Superior Court ruling.

But he says it does set a precedent -- not just for Superfund sites with public and private responsible parties, but for any quasi-governmental group in the state.

“The involvement of the government or public entity in that organization now raises a question of whether or not the organization is subject to the Right-to-Know law,” Sullivan says.

The Landfill Group has also previously assembled reams of Coakley records – from Portsmouth as well as private entities – that are now officially public.

State Rep. Renny Cushing, a Democrat, helped file the suit that led to this ruling.

"We don't want to have to get into a situation where CLG is playing ‘I've got a secret,’ ” Cushing says. “[The landfill] is a threat to the public health and safety, and we have a right to know what's going on."

Cushing hopes the decision will shed light on how contamination at the site is being managed, and how taxpayer money is being spent on cleanup.

“We would hope that what we would find is that the Coakley Landfill Group is focused on trying to clean up the site, rather than just to delay or escape its responsibility,” Cushing says.   

State Rep. Mindi Messmer was also a plaintiff in the suit. She says she hopes to use the ruling in next legislative session to revisit a bill she sponsored unsuccessfully this year.

The original version of that bill would have directed state regulators to compel the Landfill Group to undertake more intensive cleanup at Coakley.

Read the Superior Court ruling: