NASHUA ASPHALT PLANT
ASPHALT PLANT DEFEATED
On July 9, 2024, Newport Construction Company dropped its lawsuit challenging Nashua’s rejection of a proposal to build a polluting asphalt plant. Amid pushback from residents, government actors, and interested organizations, including CLF, the Nashua Planning Board pointed out that the plan was inconsistent with the community’s character.
The company’s withdrawal means the city’s decision stands: Nashua has defeated the asphalt plant for good.
This is a victory for those in Nashua who stood up to demand safe air to breathe and to protect the neighborhood’s health, safety, and quality of life – proof that the collective will of a community can prevail when all voices are given the chance to be heard.
– Heidi Trimarco, CLF’s staff attorney.
ONGOING STATE AIR PERMIT PROCESS
As part of its process to obtain permission to build the asphalt plant, Newport Construction must apply for an air permit from the New Hampshire Department of Environmental Services (NHDES).
In New Hampshire, the local- and state-level approvals needed for a project are independent of each other. Even though the Nashua Planning Board denied the proposal for the asphalt plant, the air permit application associated with this project will still be processed by the state agency, NHDES. To be clear, the developer must obtain both local and state approvals to build its proposed facility. So even if NHDES were to grant a permit, the asphalt plant could not proceed if the Planning Board’s decision, which the developer has appealed, is upheld by the court.
The NHDES must ensure that each project associated with a permit application follows federal and state air regulations. Under the air permitting process, NHDES does not currently have the authority to assess the cumulative pollution impacts of proposed facilities. They also lack the authority to consider the broader impacts of a proposed project on the health and wellbeing of the surrounding community – such as the noise, traffic, and air pollution caused by the trucks that will access the asphalt plant. Rather, NHDES will only be considering air emissions from “stationary” sources of pollution, such as the asphalt plant’s smokestacks.
NHDES opted to hold a public information session as part of the air permit review process, given the large amount of community concern around the proposed asphalt plant. The purpose of the information session, held February 12, 2024, was to explain their permitting process, and to give community members an opportunity to voice their concerns. At the information session, NHDES distributed an air permit fact sheet and an email list link to receive updates about the air permit process for the asphalt plant.
In the future, NHDES intends to hold a public hearing where community members can provide testimony about the proposed asphalt plant project. The date for this hearing is not yet set. Even though there are opportunities to voice your opinion, NHDES has stated that it cannot consider factors beyond the air permitting rules for determining whether to grant an air permit.
The lack of regulatory tools available for NHDES to assess the impacts of this project on the community shows the need for a cumulative impact law in New Hampshire. This would give NHDES the authority to consider impacts beyond stationary sources of pollution, such as the noise, traffic, and air pollution associated with the asphalt plant.
COURT APPEAL
On June 19, 2023 the Nashua Planning Board denied the local approvals needed to construct the asphalt plant at the proposed location (145 Temple Street).
On July 17, 2023 the developer (145 Temple Street, LLC and Greenridge, LLC) appealed the Nashua Planning Board’s decision to the Hillsborough Superior Court Southern District. In the following month, attorneys representing the Conservation Law Foundation (CLF), and Riverfront Landing, LLC, filed motions to intervene in the matter with the court. If granted, their motions to intervene would allow CLF and Riverfront Landing to become parties to the case.
On October 19, 2023 the Superior Court denied both motions to intervene, reasoning that both CLF’s and Riverfront Landing’s interests are represented by the City of Nashua. Shortly after, CLF and Riverfront Landing filed motions to reconsider the decision to deny their motions to intervene.
On January 2024 the matter was transferred to the newly-formed Land Use Review Docket in Hillsborough Superior Court.
On March 4, 2024 the Land Use Review Docket reaffirmed the decision to deny CLF’s and Riverfront Landing’s motions to intervene.
On April 4, 2024 CLF and Riverfront Landing filed a Rule 7 Notice of Discretionary Appeal with the New Hampshire Supreme Court, asking the state’s Supreme Court to weigh in on the parties’ intervention. A discretionary appeal means the NH Supreme Court can choose to review this case or decline to do so. Until a decision is reached by the state’s Supreme Court on whether they will hear this case, CLF and Riverfront Landing have filed a motion to stay (or pause) the proceedings at the Superior Court pending the outcome of the appeal.
On May 14, 2024, the New Hampshire Supreme Court agreed to hear CLF and Riverfront Landing’s appeal. The two entities intend to file a joint brief to the NH Supreme Court on June 13, 2024.
ASPHALT PLANT BACKGROUND
In 2022, Newport Construction Corporation submitted a proposal to the Nashua Planning Board to build an asphalt plant at 145 Temple Street. The city quickly became united against this plan. Activists from the Granite State Organizing Project (GSOP) and 350NH rallied weekly with signs outside the proposed plant site to raise awareness about the asphalt plant. Volunteers from GSOP knocked on doors throughout the neighborhood to inform residents that an asphalt plant was to be built in their backyard and hear their concerns. About 30% of the people who live in the neighborhood where the plant was to be located are Latino. The local median household income is $48,813, significantly lower than the median for Nashua as a whole. It became clear that this was an environmental justice issue – marginalized communities such as immigrants, people of color, and low income families, should not be forced to live in a place with poor air quality simply because they have less power to fight back. Activists from GSOP and the Conservation Law Foundation (CLF) expressed concerns that it would be challenging for people who live in the affected area to learn about the proposal due to language barriers, limiting their capacity to advocate for themselves.
Several public hearing sessions were held to both inform the public and gather public comment. Although the City was unwilling to provide interpreters at the time, local nonprofits organized interpreters to attend the public hearings to increase meaningful participation from the community. Residents were concerned about a host of issues such as air pollution from the plant, pollution and traffic congestion from the dozens of trucks that would be entering and leaving the plant, as well as noise and water pollution. Legal testimony was offered by CLF and Riverside attorneys to support testimony from the community. Nashua residents were also concerned about the impacts on the schools, elderly homes, public housing units, and daycares in the neighborhood. The community was clear: these vulnerable populations should not bear a disproportionate burden of the environmental harms associated with asphalt production.
In June 2023, the Nashua Planning Board voted unanimously against Newport’s proposal. Although Newport argued that the neighborhood of 145 Temple Street is zoned for multi-use, the city had previously done a zoning overlay to allow for Transit Oriented Development to encourage a pedestrian-oriented, mixed use community per the Nashua Master Plan. Because of this, the board members said that an asphalt plant in the downtown area did not align with Nashua’s Master Plan. The community celebrated their win. Shortly after, Newport sued the city of Nashua.