The effort by city councilors Brad Lown and Josh Denton to ban single-use plastic bags in the city is continuing.

The councilors put a motion on Monday’s City Council agenda – which councilors unanimously approved – to write a letter to the commissioner of the state Department of Environmental Services to ask if they believe state law allows them to ban single-use plastic bags and charge a ten cent “paper bag pass through” fee.

Lown said they’re hopeful that the DES commissioner will rule that state statute 149-M allows Portsmouth to approve a ban after a move in the N.H. House this year to create enabling legislation for cities and towns to ban the bags was defeated.

“I hope they’re going to do that as opposed to just passing our letter along to the attorney general,” Lown said Tuesday. “If they do that I think it’s a dead end. Josh and I are trying to figure out how to keep this thing alive.”

Attorney Jeff Rasanen wrote an opinion last year while working for McLane, Graf, Raulerson & Middleton stating that he believes Portsmouth can ban single-use plastic bags.

“Although the state will err on the side of finding state preemption of local ordinances when there is a conflict, a ban on single-use plastic bags or Styrofoam would arguably not conflict with New Hampshire’s solid waste management goals or purposes,” Rasanen said. “This type of ban would decrease pollution from littering and waste of plastic bags and Styrofoam containers and would do so through source reduction, which is the most preferred method of waste management.”

He acknowledged in the opinion that “the state solid waste management regulations do not comprehensively address a town’s authority to pass bans of certain items.”

But Rasanen argued that the state has “left open the door for towns to manage this aspect of solid waste.”

Lown, who’s also an attorney, said he thinks Rasanen is “probably right but probably is the operative word.”

“That was my initial opinion that the state has delegated to the cities and towns the power to regulate waste,” Lown said.

But whether they can ban single-use plastic bags and charge a pass-through fee is not “crystal clear,” Lown acknowledged.

Denton said they asked to send the letter to DES because “the big picture is we’re still unsure if we have the authority to proceed with banning the bags.”

Denton, who is also an attorney, said City Attorney Robert Sullivan “erred on the side of caution” when he ruled last year that Portsmouth couldn’t ban plastic bags without enabling legislation.

When the enabling legislation was defeated this year, several state senators said they felt cities and towns already had the authority to ban plastic bags under 149-M, Denton said.

“We want DES’ thoughts on it first,” Denton said.

The ordinance proposed last year would have included exemptions for plastic bags used with prepared food, produce and fish and meat, Lown said.

“It’s really the single-use plastic bag you get when you’re leaving the grocery store,” Lown said.

There would also be exemptions for certain nonprofits, Lown said.

Penalties for violating the ban under last year’s proposed ordinance include a written warning for the first offense and then a citation and $100 fine for each violation after that, Lown said.

 

Source : seacoastonline.com

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