Nashua rejected a proposed asphalt plant. But the company's applying for a permit with the state.

Three months after Nashua’s planning board rejected a proposal for an asphalt plant that has been opposed by many in the city, an air permit application for that facility is still being considered by state regulators.

New Hampshire’s Department of Environmental Services met with community leaders on Monday to discuss their efforts to engage the community in the neighborhood where the plant would be located in the permit approval process.

Advocates at the meeting pushed back on the department’s handling of the process, saying this air permit application is a surprise that won’t sit well with Temple Street’s immigrant community.

Puedes leer esta historia en español aquí.

Why is the company still applying for an air permit?

Newport Bituminous LLC applied for an air permit from the Department of Environmental Services early in 2023, before the city’s planning board rejected their proposal. New Hampshire regulators said the state’s permitting process and the process for local approval are separate, so they will still process the application they received.

Todd Moore, who manages air permitting programs for the Department of Environmental Services, said the project would need both city and state approvals, and the state’s process will have no bearing on the city’s process. Currently, Newport is suing the city, alleging the plant was wrongfully rejected and is seeking to overturn the planning board’s decision.

State regulators also said nothing the state is doing will overturn anything that the city has decided – so an approval of the company’s air permit would not overturn the Nashua planning board’s rejection of the asphalt plant.

Patricia Klee, Nashua's Ward 3 alderman, expressed concerns that the company could use an approval from state regulators to aid in their court case against the city.

Mark Sanborn, assistant commissioner of the Department of Environmental Services, attempted to assuage that concern, saying the courts will just seek to confirm the appropriate laws were followed through each separate process.

“It is perfectly possible and appropriate that under the requirements that we need to follow for our permit, something can be approved, and under the ordinances and rules applicable to the city planning process, [the permit] is denied, and both processes were handled correctly,” he said.

Meaningful community engagement

Usually state regulators issue a draft decision on a permit application before opening the process up for public comments. But in this case, because there are so many people concerned about the asphalt plant, officials say they’re hoping to engage with community members before they make a decision.

They’re hoping to host an information session in October or November in Nashua to explain the permitting process and explain what standards they’re using to evaluate the company’s application. Regulators also said they’re hoping to explain how people can review their work and submit comments during the comment period.

Advocates at the meeting said they were concerned that community members would be asked to engage, but ultimately, concerns outside of the air permitting decision, like worries about increased traffic, pollution and noise from more trucks associated with the asphalt plant, would go unheard.

Moore said state regulators would consider every public comment they received, but the only ones that would affect their decision would be those “within the scope and purview” of the air permit.

If someone submits a comment about truck traffic, for example, Moore said it would not affect their decision because they do not implement truck safety or traffic regulations.

“We’re not saying that those aren’t valid concerns,” he said – just that the department can’t do anything about them through the air permitting process.

Tom Irwin, a vice president at the Conservation Law Foundation, said the technical nature of the permitting process and the fact that regulators won’t take into consideration the most salient concerns in the community, like health impacts associated with air pollution from trucks, means that their engagement process could do more harm than good.

“What matters is meaningful engagement of the community – a process that allows the community to have an impact on the decision,” he said. “What’s been described, in my opinion, the way the rules and statutes are set up, that opportunity does not really exist.”

Irwin noted that the situation highlights New Hampshire’s lack of environmental justice laws, and the Department of Environmental Services’ lack of “cumulative impact” assessments in permitting.

A bill to have the department consider the cumulative impacts of a project was retained in committee last session. In a hearing last week, Craig Wright, the director of the air resources division at the Department of Environmental Services, said the agency is not taking a position on the bill.

Nashua resident Bob Keating worries if the city’s decision is overturned, there could be negative effects on the health and physical safety of the neighborhood that surrounds the proposed site.

But at this moment he is most concerned about changes in the state’s environmental department leadership. Mark Sanborn, DES assistant commissioner, announced his resignation in September to work in the private sector; his last day will be Oct. 5. Sanborn came under some scrutiny earlier this year when emails surfaced suggesting he and another DES employee consulted on edits and language with a lawyer for Casella on landfill legislation.   

Still, Keating feels optimistic about the work the community played in the city’s decision to reject the asphalt plant application.

“I feel collectively we are in a better position,” he said. “I think knowing the people [in charge] was a very helpful thing.”

Language accessibility

Language access has been a problem during past meetings on the asphalt plant. When organizers asked the city of Nashua to provide interpreters, the city’s planning board denied that request.

Advocates during Monday’s meeting asked the Department of Environmental Services to provide interpretation services in Spanish, Swahili, Portuguese, and American Sign Language.

The department said it was planning to provide interpretation services and would take the languages under consideration.

Sarah Jane Knoy, Granite State Organizing Project executive director, says she's not happy with the announcement. She says state officials should consider that this community made the effort to attend the hearings that led to the construction application rejection, but now that work may be worthless.

She hopes the department will make use of BIPOC, Brazilian and Hispanic media that is emerging in the state to reach residents.

“People are going to feel betrayed that they went and spoke, and it didn’t matter,” she said. “I am very disturbed about this whole process.”

But Padmaja Baru, who manages new construction and planning at the state's environmental department, said she is looking for ways to let people know about the permit application and process. She encourages residents to reach out with suggestions on how and where to do it.