State Appeals Court Chides DEP for Exceeding Authority in Landfill Takeover

Tom Johnson | November 14, 2014 | Energy & Environment
Decision could make it difficult to deal with noxious odors seeping from Fenimore Landfill in Roxbury

fenimore landfill
The state Department of Environmental Protection exceeded its authority when it issued an emergency order to seize control of the Fenimore Landfill, a site that sparked widespread complaints from Roxbury Township about noxious odors, according to a state appeals court.

The decision, rendered after the owner of the landfill contested the action in court, could complicate efforts to deal with problems at the dump, which residents say stinks of rotten eggs, and causes eye, nose, and throat irritations, headaches, and nausea.

In issuing the order in June 2013, the DEP began its own efforts to control the hydrogen sulfide emissions — believed to be the source of the odors from the dump — by capping the landfill, which was never properly closed. Residents opposed the move, arguing that the materials causing the foul odors — believed to be wallboard — should be excavated from the dump.

The appellate court, however, found the agency exceeded its authority by seizing control of the landfill without first securing judicial approval. The court also said the DEP erred in using the emergency order to retroactively require the landfill owner, Strategic Environmental Partners (SEP) LLC, to comply with tougher emissions standards for hydrogen sulfide that only became effective on the same morning the emergency order was issued.

The owner had purchased the landfill in 2010 (it ceased operating in 1977), with the aim of closing the dump and installing a 10-megawatt solar system there. Its closure plan was approved by the DEP in 2011. The Christie administration has sought to build large solar projects on landfills and contaminated brownfields instead of open space and farmland.

In a statement from the DEP, the agency said the court decision will not affect its efforts to deal with the problems posed by the landfill, while expressing disappointment with the ruling.

“Today’s ruling has no impact on the gas collection system and capping work being done by the state at Fenimore Landfill,’’ said DEP Commissioner Bob Martin. He said the state will continue to do everything in its power to protect the public health and welfare of residents living in Roxbury and nearby communities.

That has yet to be determined. In remanding the issue to a lower court, the appeals panel said the agency will have the opportunity to present expert proof to support the commissioner’s finding that the hydrogen sulfide emissions presented an imminent threat to the environment.

In the original court case, both an independent environmental expert and the department said the levels of emissions posed an imminent threat to the environment or public health and safety, according to the appellate decision.

“Neither the commissioner nor the department had authority to issue an emergency order enjoining SEP’s activities on the landfill or seizing control of the landfill without judicial action merely because of a violation of the hydrogen sulfide standard,’’ the court ruled.

Jeff Tittel, director of the New Jersey Sierra Club, said the court decision was no surprise.

“The DEP has mishandled the Fenimore landfill since the very beginning,’’ he said. “They did not require a proper cleanup plan.’’