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The Appellate Division of the New Jersey Superior Court concluded that the Fenimore Landfill, owned and operated by Strategic Environmental Partners LLC (SEP), should not have been closed and seized by the New Jersey Department of Environmental Protection (NJDEP) just thirty minutes after a new law was passed governing old landfills and hydrogen sulfide gas emissions that can lead to “rotten egg” odors. This case, involving various New Jersey environmental laws, was decided on November 13, 2014. A copy of the decision a available by following this link: Strategic Environmental Partners v NJDEP.
The Fenimore Landfill has been a solid waste landfill in Roxbury, New Jersey since the 1950s. Fenimore ceased operations in 1977, but was never closed or capped. It was purchased by Strategic Environmental Partners (SEP), a company that wanted to cap the landfill and install a solar power generating plant above the waste. The closure plan for the landfill allowed SEP to accept approved fill material to grade and make the site suitable for the solar installation. In 2012, the NJDEP found that SEP had not complied with obligations of its landfill closure plan and ordered SEP to stop receiving fill at the landfill. The main concern was that SEP was receiving large amounts of ground wallboard (also called gypsum board) that created noxious hydrogen sulfide gas releases as it decomposed, resulting in a “rotten egg” odor that wafted throughout the surrounding area. NJDEP received about 600 complaints from nearby residents about the odor and allegedly related nose, eye, and skin irritation.
While a summary action filed by SEP was pending in Superior Court, NJDEP issued administrative orders and penalties against SEP for violations of air pollution laws. Then, on June 26, 2013, Governor Christie signed legislation governing closure of 600 old landfills in the state, including setting standards for hydrogen sulfide emissions. N.J.S.A. 13:1E-125.1-125.9. The new law authorized NJDEP to issue an “emergency order” when a landfill presents “an imminent threat to the environment or public health and safety.” On the same day the law became effective, NJDEP issued an emergency order stopping SEP from accepting new file. NJDEP sieved control of the landfill within 30 minutes of when the Governing signed the legislation.
After the NJDEP denied a stay of the order, SEP filed an appeal. The Appellate Division found that the NJDEP lacked authority to issue the emergency order because the new law only allowed NJDEP to require SEP to take corrective action. There was no authority for NJDEP to seize the landfill or halt its operation without first going to the trial court for injunctive relief. Moreover, even if NJDEP could seize the landfill without first going to court, there was no evidence that SEP was currently violating the hydrogen sulfide standard that was established just 30 minutes earlier. Instead, the Appellate Division found that NJDEP’s action, even if permitted, would have been an “unlawful retroactive application.”
The Appellate Division did not address certain constitutional arguments raised by SEP. However, the Court did address whether the Legacy Landfill was “special legislation,” which is a law that arbitrarily separates some persons (or entities) from others and places limitations on them with no rational purpose. The Court explained that the law served the legitimate purpose of preserving the environment, and that it is applicable to all legacy landfills and not specifically directed at SEP. Finally, the Court found that the classification of legacy landfills (apart from other landfills) is rationally related to the purpose of New Jersey’s Solid Waste Management Act.
In light of the fact that there was no administrative record on the matter, the Appellate Division remanded the case for a plenary hearing at the trial court level, giving the NJDEP the opportunity present evidence to support a finding that the landfill presents a threat under the new law, and giving SEP the right to present contrary evidence.
When faced with environmental administrative orders or penalty assessments from the NJDEP, members of the regulated community should seek the advice of an environmental lawyer experienced with NJDEP rules and regulations. It is also important to find counsel with appellate experience who can challenge the appropriateness of NJDEP’s orders before the courts. Our teams of environmental attorneys offer clients a breadth of experience in regulatory compliance, environmental enforcement and appellate advocacy.
The time limits to comply with or appeal regulatory and administrative agency determinations can be short. Do not delay in getting the legal advice you need. Contact our New Jersey environmental lawyers for a consultation.
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