Court: Coakley Landfill Group must follow Right to Know law

By Jeff McMenemy 
Posted Sep 25, 2018 at 4:06 PMUpdated Sep 26, 2018 at 10:10 AM

PORTSMOUTH -- A Superior Court judge ruled the Coakley Landfill Group is a “public body” and must follow the state’s Right to Know law.

Superior Court Judge N. William Delker added in his 22-page decision released Tuesday that the CLG’s executive committee must hold public meetings from now on and follow all rules dictated by the state’s Right to Know law.

In making his determination, Delker pointed to Portsmouth City Attorney Robert Sullivan’s role as chairman of the CLG’s executive committee and noted he wields two votes in committee matters. He also pointed out the city’s environmental planner Peter Britz also serves as the CLG’s “technical expert.”

“Portsmouth alone has spent more than $17 million on the CLG. As noted by virtue of the voting power of the municipal members ... Attorney Sullivan and (Britz) have considerable influence on how that public money is spent,” Delker said in his ruling.

“While it is true that Portsmouth cannot unilaterally force CLG to take action, Portsmouth alone does have the power to block decisions both on the executive committee and in a full meeting of the group. The exercise of that authority to thwart CLG’s efforts can be as much, if not more, of a matter of public concern than the actions CLG actually undertakes.”

Delker also noted “the decisions of CLG and how it approaches the remediation of the contamination of Coakley landfill have a substantial impact on residents and businesses in the area.”

“The public has a right to know how its servants are exercising their authority through the CLG,” he ruled.

The suit against the CLG was brought by state Reps. Mindi Messmer, Renny Cushing, Phil Bean, Mike Edgar, Henry Marsh and former longtime Portsmouth Assistant Mayor Jim Splaine. The town of Hampton intervened in the case.

The CLG is made up of municipalities and private groups that used the Superfund cleanup site in Greenland and North Hampton, including companies that transported trash to the site. The city of Portsmouth is responsible for paying 53.6 percent of the CLG remediation costs and together the municipalities in the group are responsible for more than 60 percent of the costs.

The landfill accepted waste from 1972 to 1982 and then incinerator waste until 1985. It was capped in 1998.

Cushing on Tuesday said Delker’s decision could set “national precedent,” adding, “Polluters everywhere should be concerned by this decision.”

He praised Delker’s decision, stating “it’s a good day for sunshine in the state of New Hampshire.”

As Delker pointed out, Cushing noted, “the people of Portsmouth and the entire Seacoast should know how their money is being spent.”

Cushing stressed the CLG has to “immediately” open its executive committee meetings and follow all requirements of the Right to Know law.

“The next meeting of the CLG will be open to the public otherwise they’ll violate the court order and will face being held in contempt of court,” Cushing said. “I don’t think they want to do that.”

Cushing said the decision shows “Bob Sullivan can’t wear two hats at any given time, he can’t be city attorney and the head of the CLG. It’s an inherent conflict of interest.”

He believes Portsmouth “needs to find someone else” to chair the CLG and the CLG needs to look closely “at how it’s conducted its business.”

Cushing said Delker’s ruling should give pause to hybrid organizations like the CLG, who choose to operate in secret.

“It seems they’re used sometimes as a way to thwart the public’s access to ... public records,” he said. “And that’s not right.”

Messmer on Tuesday agreed Delker’s decision “could have implications nationally for other similar hybrid organizations and the public’s right to know what’s going on, especially where it might impact drinking water.”

She also pointed to how the CLG has spent money, including using more than $3 million that should have been spent for remediation to settle a lawsuit it brought.

The CLG also hired a law firm to lobby against legislation Messmer pushed in the Legislature to protect the drinking water of people living around the landfill.

“The taxpayers should know how they decided to spend their money on such things when 25 years have gone by and dangerous chemicals are still leaking from that site,” Messmer said.

“These people have made decisions to unilaterally waste taxpayers’ money without checks and balances,” she said.

The N.H. Department of Environmental Services is testing wells around the landfill to try to map the plume of contaminants, which includes PFAS found above the EPA’s advisory level in monitoring wells and in residential wells below the level, and 1,4-dioxane, which the EPA said is a likely carcinogen.

PFAS have been found at levels dramatically higher than the drinking water standard in nearby Berry’s Brook.

Messmer said people became concerned about how the Coakley landfill could impact public health after then-Gov. Maggie Hassan formed a task force to study the Seacoast pediatric cancer cluster.

“What we want is to have protections on our drinking water and stop the flow of toxins from this site,” she said. “The public has so much to lose. We just had another death from someone who was diagnosed as part of the cancer cluster.”

Splaine said the group that brought the lawsuit “anticipated this decision in that we thought that we were right from the beginning.”

“The city of Portsmouth and its management should feel ashamed of itself trying to contest otherwise,” Splaine said Tuesday. “It shows the core of incompetence on the part of the leadership of the Coakley Landfill Group and the management of the city of Portsmouth in wanting to keep this information secret.”

He again called for Sullivan to step down from his leadership role in the CLG, saying “he already has enough on his hands.”

Splaine called Cushing and Messmer “heroes.”

“It shows that citizens can band together and fight City Hall and demand justice. Thank goodness for the court,” he said. “It’s one more example of the city of Portsmouth losing a court case ... and it shows the arrogance on their part. I would like to see city government and management apologize to the people of the city and the people of the Seacoast, but I don’t think it’s going to happen.”

Splaine said the attempt to keep the CLG’s activities secret in no small part “all goes back to the city manager (John Bohenko) and the city administration.” “It has to change,” he added.

He also expressed disappointment that the City Council didn’t act to open up the CLG’s activities and finances.

“The City Council had an obligation here and did not speak up, they did not respond, they were part of the cover-up,” Splaine said. “They tried to keep the wall and build the wall higher and we beat them.”

Neither Sullivan nor Bohenko immediately responded Tuesday afternoon to requests for comment.

Andrew Gorrill