The topic of burning construction and demolition debris has once again come up in New Hampshire, as a Massachusetts company is suing the state Department of Environment Services to get a ban on burning the materials overturned.

New England Recycling and a construction and demolition debris (C and D) recycling trade group claim in their suit that N.H. DES Commissioner Thomas Burack and Attorney General Kelly Ayotte created the law to ban the materials to protect the state’s virgin wood pellet industry.

The lawsuit includes three parts, with the main one claiming the state violated the commerce clause of the Constitution, according to Mary Maloney, who is representing the DES.

“The commerce clause is the heart of their claim. They’re saying we enacted the laws to detriment of out-of-state interests. Of course, that’s not the case. The heart of the legislation was consideration of an environmental one to protect the residents of the state. It was an effort at cleaning up the environment.”

New Hampshire’s construction and demolition debris ban stemmed from the Bio Energy plant in West Hopkinton, during which the town became involved in legal action against the company. C and D materials can be hazardous to the environment because they emit lead and other chemicals into the air.

Mark Dell’Orfano, the spokesman for XGenesys Development Corp., Bio Energy’s parent company, said the lawsuit has no impact on his company’s future plans for the power plant.

And although Hopkinton selectmen discussed the lawsuit at a recent meeting, Chairman Scott Flood said he does not anticipate speaking with anyone about the lawsuit.

“We’re not parties in the lawsuit,” said Flood. “I just wanted to make sure the board and public knew it has been filed.”

Maloney said she has recently completed reviewing the materials of the case, and her first move will be to file a motion to dismiss on two of the three claims, possibly all of them.

“We’re really at the investigation stage right now. Obviously, we take every case filed against the state seriously,” Maloney said. “In this case, I think motions to dismiss are appropriate because I don’t believe there is any merit.”

The state did not have alternative intentions when creating the laws banning C and D, according to Maloney.

“I don’t think the case has much merit. I don’t think it has any merit,” she said. “From what I understand, the purpose of the legislation was environmental. It wasn’t to advance the interest of New Hampshire industry over out of state.”

Dell’Orfano said there are no immediate plans to reopen the Bio Energy plant in West Hopkinton. Earlier this year, the company asked Hopkinton residents for feedback on whether the company should reopen the plant and burn clean wood for fuel or develop plans for another business at the site.

“We haven’t heard anything yet from the community, so we’re still in the process of feeling everything out up there,” said Dell’Orfano. “Given the fact that there seems to be changing issues in the financial world, we have to be careful where we put financial means to work. Right now until we hear something more definitive, we’re still status quo.”