The House, Wednesday, March 7, 2018

Rep. Philip Bean (R - Rock 21)Thank you, Mister Speaker. This is a very important bill and I thank the committee for their outstanding work and in examination of the blurb, they bring forth sailant points. In the Seacoast of New Hampshire there is a member of the Seacoast cancer cluster investigation committee, death has marched into the Seacoast. It is the site of one of the few pediatric cancer clusters in the nation. There are two dead children, Sam and Lidia, and their parents have testified and provided tear-jerking testimony in our commission about that. These documents that are alluded to in the blurb are noted in the majority to be respected and not to be violated. They, in essence, and in real facts, are these root cause and source of the continued malfeasance and mortality. The operating agreement or the consent decree is nothing but huge corporations, federal agencies throwing pennies into a pot and walking away from the Coakley Landfill Group, which is a modern day crime scene. The Coakley Landfill Group operating agreement, which has been challenged by the Town of Hampton, and our town attorney, is nothing more than an outdated cabal of an abdication of moral authority and responsibility to polluting the seacoast of New Hampshire. In a lesser concern, but very emphatic need of Hampton, is our water source. We now have a 66 million gallon well that is shut down due to PFC's and PFOA's. I have personally been to Eversource with the government affairs attorney. I have been in front of the Portsmouth City Council. We have opined. We have sent letters from our town attorney with the full majority of the Board of Selectmen of the Town of Hampton. We have talked to Mr. Sullivan. No amount of lobbyists, no respect for these sorted, sorted agreements and decrees will remedy the way. Your vote today to reinforce the good work of the committee that marginally, in a 9-7 vote, has said that this should not pass. Your vote on behalf of remediating that site, which has never been remediated, and moving pass those terrible, terrible decrees and those terrible agreements will prevent future "Sams" and future "Lidias." So I would ask you to respect the good work of the committee that almost got it right and overturn that majority and vote going forward that it ought to pass and a subsequent motion can be made. Thank you, Mister Speaker.

Speaker ChandlerThe question before the House is the adoption of the majority committee report of Refer for Interim Study. The Chair recognizes the member from Hampton, Representative Cushing to speak in opposition to the committee report.

Rep. Robert Renny Cushing (D - Rock 21)Thank you, Mister Speaker. The highest point of land on our coastal plain between Seabrook and Portsmouth is Breakfast Hill. It's located in the Town of North Hampton, right near the Rye and Stratham line. In the 1950s a gravel pit was opened there by the Coakley family and they excavated a fair amount of gravel and then it turns out the bedrock was very close to the surface so they decided to also to blast out and extract the bedrock and what remained was kind of a bowl on top of a hill on the seacoast. In the 1970s there was a decision made to use that bowl as a solid waste and then hazardous waste disposal site. That operated for a number of years. It took in hazardous waste and solid waste from throughout the state. They took it from Pease Air Force Base. They took it from the Navy yard. They took it from virtually every producer in Eastern New Hampshire and a lot brought up from Massachusetts. In the late 1970s at the Lafayette Terrace, which is a small little housing development adjacent to Coakley, it turned out that people were getting extremely ill who had wells that turned out were polluted by presumably stuff leaking out of that landfill. Those wells were shut down and town water was introduced. In the 1980s there was a lot of consciousness in this country about, in part from Love Canal, about the toxins that are below the surface that are threatening us and the federal government established a superfund project. The Coakley landfill in 1982 was declared a superfund site by the federal government and for the next three years the State of New Hampshire allowed hazardous waste to be dumped on that superfund site. Now, why the Department of Environmental Services in the 1980s let more toxins be dumped on a superfund site, I don't know, but it took place. In the 1990s there was an agreement in recognition that something should be done to clean up this hazardous waste site. An agreement was structured between the Environmental Protection Agency, the responsible parties, who are the people who did the pollution, and DES that provided to have this superfund site cleaned up. I will note parenthetically that in 1980, the State of New Hampshire passed a law that required that all toxic waste and all solid waste sites have liners under them. This was 1980. In the mid-1990s when there was a decision made to clean up the Coakley landfill, a decision was made not to put a liner under it, but the decision that was made was to put a cap on top of it to prevent further stuff from leaking down into it on the top and then to install a pump and treat system. The pump and treat system was a way that there were a series of berms around the perimeter of the superfund site and there would be wells in the middle of it that would extract water from the center of the superfund site and treat that and release it. It would essentially be an ongoing process of cleaning up the superfund site and at the same time it would be a restriction of development around the site because you didn't want to have new houses built there with new wells or other developments that would draw water out from underneath this cap. For some reason that we don't really know yet, although money was paid by the federal government to build a cap and $5 million was also contributed to install this pump and treat system. That pump and treat system is never installed so now, 25-years later, we've got a superfund site that had a plan to be cleaned up and protect the health and safety of the public, that never took place and we have the emergence of a cancer cluster. Not only that, we have a problem, as the member from Hampton alluded to, that superfund site is leaking and its leaking into the groundwater, away from the site and into the drinking water of people in the surrounding towns. What the legislation before you does is direct the Department of Environmental Services to do what it said was going to be done 25 years ago. To clean up the site and to install that pump and treat system. I know that with respect to the majority report, which eluded to some decision that this would violate the consent decree, I disagree with that. That's just not based in fact. If I could just read from the consent decree. The notion is that the State of New Hampshire must have surrendered all of its rights to protect the public health when it signed that consent decree, but the consent decree said that the state preserves all rights against the settling defendants and this consent decree is without prejudice to all rights against the settling defendants including but not limited to the following: liability arising from the past, present or future. Disposal, release or threat of release of waste materials outside the site. The Governor appointed a cancer cluster group to look into reasons why there was a cancer cluster at the Seacoast. One of the first things the cancer cluster asked to have done, is they asked to have the Coakley landfill tested for PFCs. There was an experience already in Pease, where there was PFC's that were there that had contaminated people and although that had never been done, there was a compliance. There was a test for PFC's at the landfill and guess what, riddled with PFC's. There was then a request that was made to test the groundwater. The state would not do the groundwater. The member from Rye, who was not a member at the time, went out and sought a private individual and at least do testing on the groundwater. The groundwater in Berry's Brook adjacent or nearby that landfill show that there were PFNAs, which are PFCs, that were at the time the third highest in the country that were detected. DES was suspect of that, so DES finally a month later did its own testing and it came back and said, yes, they were correct. There are PFCs leaking from this landfill site. They are among the highest in the world and we'll acknowledge that. Four months later, the Coakley Landfill Group, did test and they confirmed that in fact there are these highly toxins leaking from the landfill site. Last July, in response to a letter that was submitted to our own DES by a number of seacoast lawmakers, our Department of Environmental Services, confirmed that there were toxins leaking outside the Coakley landfill site and said that this is unacceptable and we are going to have to do something to clean it up. That was last July. What this legislation does is it instructs the DES to do what it said needed to be done last July and to get on it right now. The state has the authority. It retained the authority to exercise its power because the leaking is outside the site. The plan was, with a stipulation, that the poisons and toxins would be contained within the site. They didn't do what they said they were going to do. It's leaking now. It's a threat to the health and safety of the people in the seacoast. We need to stop talking. Start acting. I ask you to defeat the Interim Study motion so that we can go on and pass this bill and start cleaning up Coakley. Thank you.

Speaker ChandlerThe question before the House is the adoption of the majority committee report of Refer for Interim Study. The Chair recognizes the final speaker, the member from Derry, Representative John T. O'Connor.

Rep. John T. O'ConnorThank you, Mister Speaker. Mister Speaker, honorable colleagues, I rise in support of the committee's recommendation to refer HB 1766 to Interim Study, relative to the remediating the Coakley Landfill in Greenland. What is the Coakley Landfill? It is one of the most complicated superfund sites of the 20-plus superfund sites already existing in the State of New Hampshire. We are also under a consent decree established in 1999 by the US District Court. Who are the responsible parties? Three municipalities that make up the largest percentage at 62.5%, transporters at 17.5%, generators at 20%, followed by the New Hampshire Department of Environmental Services, the Attorney General and the US Government Department of Justice. What does this bill try to achieve? A legislative mandate using chaptered law to force New Hampshire Depart- ment of Environmental Services to compel the Coakley Landfill Group to implement one of the four remediation options established by the consent decree using technology that is over 20-years old. The committee recently heard only 2 � hours of testimony. The majority of which was related to the original findings that were made up of the consent decree in the mid-1990s. We additionally head from individuals from the seacoast area that related their personal medical history. Very compelling. The committee is well aware that this area of the states aquifers has exceedingly high levels of natural arsenic and radon that municipalities are treating for the regular water supply but DES also offers pamphlets to those many private wells and what available treatments that they can use. In addition, the Breakfast Hill location that was mentioned that surrounds the Coakley landfill is also being supplied by the state MBTE funds of currently 200,000 to implement the location to put a city water supply around there and at this time there is no indication that they exceed any of the federal requirements of the Clean Water Act. We also heard testimony from the Coakley Landfill Group attorney, one who had been with the Attorney General's office for over 25 years. In addition, we heard that there are three more landfills locally that are also contaminated and one is within one mile of the Coakley landfill, but we have not seen that data. What the committee did not see was any current documentation that any of the distant homeowners water supplies were contaminated. Also, during the public hearing, the sponsor shared documentation for a 91-A request on the Town of Portsmouth for all documents related to the landfill, which is currently at approximately 100 bank boxes of information that has yet to be reviewed. In addition, a special letter was sent to the Attorney General's office by the sponsors requesting a decision regarding whether 91-A applies to the Coakley Land Group. In turn, I also sent a follow up letter requesting a copy of the AG's response for the committee and as of yet we have not received a response. During the same period of time, the Governor was meeting with the new commissioner of the federal EPA, who then agreed to expedite an additional deep bedrock testing within the site with the results to be reported forthcoming by the end of the summer. Why is this important? Given the amount of non-technical information given at the public hearing and not seeing any current scientific data, the committee is awaiting the pending EPA test data along with the additional information from the 91-A request so the committee can make an informed decision. The committee also heard testimony and I reviewed with House Counsel the legality of the legislation mandating an agency to compel parties responsible to remediate the area that is under a consent decree. I want to highlight a couple of key legal points that need to be heard. 1. The consent decree was signed by all parties and if this bill was to pass, as introduced, would it violate the separation of powers with respect to laws under the New Hampshire Constitution, Part I, Article 23? If we modify the decree, we would be in violation of our own constitution. 2. Under the equal protection under the New Hampshire federal constitution, treating the Coakley Land Group by legislative order and not mandating the other 20-plus superfund sites would violate the equal protection clause. And, finally, the committee being concerned about the health, safety and welfare of the surrounding communities, have been assured by the New Hampshire Department of Environmental Services that under RSA 147-A that if an eminent hazard is present, that they have the authority to break the consent decree. Please join me in passing the committee's recommendation and send this bill to Interim Study by pressing the green button and Mister Speaker, I request a division vote.

Speaker ChandlerThe question before the House is on the adoption of the majority committee report of Refer for Interim Study. Who requested the roll call? Rep. Messmer requests a roll call. Is that sufficiently seconded? It is sufficiently seconded. Will all members please take their seats? This will be a roll call vote. Members will please take their seats. The question before the House is on the adoption of the majority committee report of Refer for Interim Study. If you are in favor of that, you'll be pressing the green button. If you are opposed, you'll be pressing the red button. The Chair recognizes Rep. Messmer for a parliamentary inquiry. The House will be in order.

Rep. Mindi Messmer (D - Rock 24)Thank you, Mister Speaker. Mister Speaker, if I know that the Coakley landfill represents a significant public health threat by contaminating groundwater, surface water and drinking water of five towns of the seacoast and I know that it has been 25-years of inaction. They took $5 million from the Department of Defense and never installed a remedial system and if I know that the DES has said that this is a significate health issue, it threatens our public health of the seacoast, would I then press the red button so that another motion can be brought to pass this bill? Thank you.

Speaker ChandlerThe question before the House is the adoption of the majority committee report of Refer for Interim Study. If you are in favor of that, you will be pressing the green button. If you are opposed, you will be pressing the red button. The Chair recognizes Rep. Pearl for a parliamentary inquiry.

Rep. Howard PearlMister Speaker, if I know the Coakley Landfill Group has already received millions of dollars to mitigate groundwater runoff and Mister Speaker, if I know that Governor Sununu has met with the US EPA Director Pruitt regarding expedited deep bedrock testing to be completed this summer at the Coakley landfill site and Mister Speaker, if I know the majority of the E & A Committee felt that with the pending information due out late summer from the deep bedrock testing that it would be wise to send this bill for further study and finally, Mister Speaker, if I know that passing this bill would put New Hampshire in violation of the consent decree that it signed with the EPA when it enrolled the Coakley landfill as a superfund site, would I now go ahead and press the green button to support the committee recommendation of Ought to Pass?

Speaker ChandlerThe question before the House is on the adoption of the majority committee report of Refer for Interim Study. If you are in favor of the majority committee report of Interim Study, you will be pressing the green button. If you are opposed to that, you will be pressing the red button and the voting stations will be open for 30 seconds. Have all members voted who were here when the question was put? The House will attend to the state of the vote. 149 in the affirmative, 174 in the negative. The motion fails. Rep. White.

Rep. Andrew White (D - Graf 13)Thank you, Mister Speaker. Mister Speaker, I move Ought to Pass on HB 1766.

Speaker ChandlerRep. White moves Ought to Pass on HB 1766. Are you ready for the question? A division has been requested. All members will remain in their seats. A roll call has been requested by Rep. Cushing. Rep. Schultz? It is sufficiently seconded. All members will please take their seats. Somssich? Okay. The question before the House is on the motion of Ought to Pass on HB 1766. Rep. Pearl is recognized for a parliamentary inquiry.

Rep. Howard PearlMister Speaker, for all the reasons I gave in my last PI, would I now press the red button?

Speaker ChandlerThe question is on the motion of Ought to Pass on HB 1766. If you are in favor of that, you'll be pressing the green button. If you are opposed, you'll be pressing the red button. The Chair recognizes Rep. White for a parliamentary inquiry.

Rep. Andrew White (D - Graf 13)Thank you, Mister Speaker. Mister Speaker, if I realize that the situation creates a very clear and present danger, would I now press the green button and support the Ought to Pass motion?

Speaker ChandlerThe question before the House is on the motion of Ought to Pass on HB 1766. If you are in favor of that, you'll be pressing the green button. If you are opposed, you'll be pressing the red button. Voting stations will be open for 30 seconds. Have all members voted who were here when the question was put? The House will attend to the state of the vote. 207 in the affirmative and 118 in the negative, the minority committee report is adopted.