Appeal of Old Dutch Mustard Co., Inc., 166 N.H. 501

Pioneer applied to DES to operate a solid waste facility in an existing multi-unit building adjacent to the Souhegan River (a designated river subject to RMPA and CSPA protections). DES initially denied a permit based on a 250-foot setback requirement.
Pioneer amended its application to use only the center unit (Unit 2) for solid waste operations, sealed internal access between units, and requested a waiver to place a new access driveway within 50 feet of an adjacent property line.
Pioneer performed renovations to the building (bathrooms, windows, insulation, electrical/fire systems, paving, etc.) before receiving the DES permit. DES issued the permit and granted the driveway waiver.
Old Dutch (petitioner) appealed to the Waste Management Council, which held a hearing, admitted additional evidence, and upheld DES’s permit and waiver decisions. The Council denied rehearing.
Old Dutch appealed to the New Hampshire Supreme Court, challenging (1) whether the “facility” includes the entire building, (2) whether pre-permit construction required denial, (3) failure to assess waiver impacts on petitioner, and (4) the Council’s standard of review of the waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meaning of “facility” under RSA 149-M:4, IX	Entire building qualifies because one purpose of the building is solid waste handling	"Facility" reasonably limited to the discrete unit (Unit 2) actually used for solid waste	Statute ambiguous; deference to Council/agency: Unit 2 (not whole building) may be the facility under these facts
Accessory structures in 250-ft setback	Drainage, culvert, and proposed road are part of the facility and violate setback	Accessory structures (drains, driveways) are distinct and allowed within setback under CSPA	Accessory structures may be allowed in setback; their presence does not make the facility unlawful
Pre-permit construction by applicant	Pioneer’s pre-permit work violated RSA 149-M and required permit denial	Statutes/regulations do not mandate denial for pre-permit construction; denial only if substantive noncompliance	Pre-permit construction alone does not compel permit denial; penalties and criminal exposure remain available
Waiver of 50-ft property-line setback; procedural review	DES failed to analyze/consult petitioner or perform traffic impact; Council should have reviewed only lawfulness/reasonableness of DES’s process	DES satisfied regulatory waiver standard; Council properly reviewed record and admitted new evidence, weighing reasonableness	Council permissibly reviewed totality of evidence and upheld waiver as lawful and reasonable (petitioner failed burden)

N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709 (agency statutory interpretation reviewed de novo; give deference when appropriate)
Appeal of Lake Sunapee Protective Ass’n, 165 N.H. 119 (court interprets legislature’s intent from statute text)
Appeal of Town of Seabrook, 163 N.H. 635 (agency interpretation of statute entitled to deference)
Vector Mktg. Corp. v. N.H. Dep’t of Revenue Admin., 156 N.H. 781 (deference to agency regulation interpretation limited; consistency with regulation purpose required)
Grand China v. United Nat’l Ins. Co., 156 N.H. 429 (substantial deference where statute doubtful)
State v. Lathrop, 164 N.H. 468 (identification of statutory ambiguity and use of extrinsic aids)
Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673 (turn to legislative history when statute ambiguous)
Grant v. Town of Barrington, 156 N.H. 807 (statutes construed to avoid conflict and produce reasonable results)
Williams v. Babcock, 121 N.H. 185 (statutes in pari materia are read as a unified whole)
Appeal of Pennichuck Water Works, 160 N.H. 18 (agency may weigh competing expert testimony)
State v. Guay, 164 N.H. 696 (criminal liability for unlawful operation of a solid waste facility)