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Joyce Endee

Casella extends corporate guaranty for landfill deal

Vote to be held Jan. 17

January 16, 2012
BETHLEHEM — Just days ahead of when voters can decide whether or not they will accept a settlement agreement to end a lawsuit headed to trial in March, the CEO of the local landfill's parent company offered residents additional assurances.

John Casella of Vermont-based Casella Waste Systems (CWS) extended a corporate guaranty on Friday, Jan. 13, to cover all of North Country Environmental Services's (NCES) obligations in an agreement that restricts future expansion — among other things — in exchange for 10 acres of land.

"It specifically accepts as binding on CWS the development restrictions in paragraph 5 of the agreement," wrote Casella in a letter to Bethlehem's Board of Selectmen Chairman David Lovejoy.

Other than the easement clause, which the previous guaranty had covered, the other provisions of paragraph 5 include: (5a) the right to expand the landfill outside of District V; (5b) NCES shall not acquire property to develop or operate a landfill; (5c) NCES shall not seek or acquire any permits to develop or operate a landfill outside of District V; (5d) the height restriction of the landfill; (5e) NCES shall not expand into two parcels set aside for non-waste use; and (5g) NCES shall not sue mechanically stabilized earthen berms.

Residents had been concerned that the guaranty provided CWS with a loophole to get out of the agreement between the town and its subsidiary NCES, which operates the landfill on Trudeau Road.

The Conservation Law Foundation (CLF) had on Thursday, Jan. 12, sent a letter to the town's attorneys Boutin & Altieri saying that the language of the Settlement Agreement was inconsistent with the Memorandum of Understanding, "which expressed an unambiguous intent to extend the landfill restrictions to NCES's corporate parent, Casella."

In the memorandum, NCES, its parent, affiliates, successors and assigns agree to the terms, while the settlement agreement drops the word "parent."

Casella wrote to Lovejoy that "our lawyers also tell me that the word 'parent' was not included in the settlement agreement only because the clear legal meaning of 'affiliates' includes a parent corporation like CWS."

The town's attorneys agreed in a Jan. 13 letter to CLF attorney Thomas Irwin.

"Black's Law Dictionary (8th ed.) defines "affiliate" as "[a] corporation that is related to anther corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation," wrote attorney Brenda Keith. "NCES agrees, through counsel, that the term "affiliate" includes a "parent" corporation and intended Casella to be bound by that section of the agreement."

Before CLF's letter and Casella's change to the guaranty, town attorney Ed Boutin had assured that the settlement agreement was solid, saying that Casella was bound in the guaranty to "things a parent company can assume liability for" and that the "items that could be addressed were addressed." Keith was more pointed and said, "We asked for the guaranty, and they conceded and gave it to use. There was no last minute, backroom deal or scheme by Casella [Waste Systems] to avoid certain aspects of the agreement."

The voters can weigh in from 8 a.m. to 7 p.m. Tuesday, Jan. 17. Letters and documents relating to the settlement agreement are available at www.bethlehemnh.org.

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Martin Lord Osman
Varney Smith
Garnett HIll
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