Chamber News Feed: Morris County, NJ: (ROXBURY, NJ) An appellate court has rescinded the order that last year allowed New Jersey to take over the troubled Fenimore landfill site and begin efforts to block rotten egg-like smells that were spreading for miles throughout town. Its not clear what that means for the Department of Environmental Protections ongoing work at the site — a massive undertaking to cap 19 acres of the landfill, which had been abandoned for decades before developer Strategic Environmental Partners began its own DEP-approved project to cap and grade it. SEP planned to install a solar facility at Fenimore, and as part of its preparatory work, began importing construction debris to level the site. That debris has been blamed for generating large amounts of hydrogen sulfide — a heavy gas that even in small amounts can be bothersome due to its powerful stench. Several Roxbury residents say the gas made them or their children sick, pointing to respiratory problems, headaches and other ill effects. In a ruling Thursday, the appellate court said the DEP didnt have the authority to shut down SEPs operation on June 26, 2013 under the Legacy Landfill Law that Gov. Chris Christie signed the same day. The law established a limit of 30 parts per billion of hydrogen sulfide at a landfill that ceased operations before 1982, like Fenimore did. If the DEP can verify complaints about hydrogen sulfide smells and determine theyre coming from a legacy landfill, the DEP can require the owner or operator to take certain steps to address it. And if the landfill violates the 30 ppb standard — as Fenimore often did in the months before the law was passed — the DEP can take the landfill to court. Only the court had the authority to order immediate abatement, corrective action, or temporary or permanent restraints, the appellate court wrote. But when the DEPs commissioner issued an emergency order on June 26, 2013 taking over Fenimore, it didnt have any current readings showing hydrogen sulfide levels in excess of 30 ppb. It relied on weeks-old readings, from before the law went into effect. There was no evidence that SEP violated (the Legacy Landfill Act) when the statute was actually in effect, the court wrote. Accordingly, using violations against SEP that occurred before the statute became effective required unlawful retroactive application. The law does, however, allow the state to void an administrative consent order for work at a landfill based on conditions before the law went into effect, the court wrote. The DEPs commissioner can shut down an operation if theres evidence of an emergency threat to the environment, but, the court wrote, SEP would also need a forum in which to rebut that evidence. There had to be expert evidence establishing the hydrogen sulfide emissions presented an imminent threat to the environment on June 26, 2013, and an opportunity for SEP to challenge that evidence, the court wrote. SEP owner Richard Bernardi has often pointed to private testing that showed negligible levels of hydrogen sulfide at various parts of the Fenimore property just before the DEP takeover. Reached by email Thursday, Bernardi said there is really nothing to comment on. The ruling pretty much says it, he wrote. Under the courts ruling Thursday, the DEP will need to make its case for a takeover to the Law Division of the Superior Court. If the DEP can make a prima facie case — one that on its face appears valid — that shows there was an emergency environmental situation on June 23 of last year, itll be up to SEP to meet its heavy burden under the statute to stay the departments intervention, the court wrote. The court also rejected SEPs argument the Landfill Legacy Law is unconstitutional special legislation, designed only to target the company. A spokesman for the DEP, replying to a message from media Thursday morning, said it would be back in touch about how the ruling affects its current work. The DEP declined to comment on what the basis for demonstrating an environmental emergency at the time of the takeover would be. The ruling speaks for itself, and we will make our arguments on that issue in court at a future hearing, spokesman Larry Ragonese said. The state Department of Health has issued several statements saying it does not believe the hydrogen sulfide will cause any long-term health effects, but saying the smell itself may cause physical reactions in the short-term. In the spring, the Agency for Toxic Substances and Disease Registry accepted a petition by petition a member of the Roxbury Environmental Action Coalition — a residents group formed in response to issues surrounding the landfill — to perform a public health assessment. In its letters to Roxbury and to REACT member Bill Morrocco, the ATSDR said that based on information from the state Department of Health and its experience with similar sites, we could consider the exposures to some residents near the Fenimore Landfill that occurred in the summer and fall of 2013 to present a public health hazard. The agency has been monitoring the site since, and been in touch with state and local officials. The states work at the Fenimore site since the 2013 takeover has been substantial. It first installed flares and used a chemical treatment to try to burn off and contain gases — though those measures fell short of any significant effect. It next installed a gas collection and burnoff system the DEP credits for substantial reductions in hydrogen sulfide levels. During the early stages of that systems installation and operation, Roxbury experienced some of the worst hydrogen sulfide spikes in the Fenimore projects history — but levels eventually dropped to the point most residents could not detect any rotten egg-like smells. The DEP was met with harsh responses — screams and protest songs — when in March it announced it would begin its own project to cap the 19 acres where SEP began its work. The state plans to install an impermeable liner and then cover it with dirt and vegetation — work that is well under way. REACT and some local officials have argued the state should instead remove the material causing the smells, but the DEP and Gov. Chris Christie have both repeatedly said that would disturb the site further, sending smells through dozens of towns. You think you want this stuff trucked out. You dont want this stuff trucked out. Because digging up that landfill and trucking it out will take years. And the disturbance of those materials will create more smell, and a bigger, bigger problem, Christie said to a Roxbury resident at a town hall meeting in February. In May, two Democrats with key environmental roles said they want the state Attorney General to investigate how the state handled the Fenimore site. There is firm reason to believe that the cleanup of this facility has been grossly mismanaged, and as a result, the residents around the landfill have had to suffer, Sen. Bob Smith and Assemblywoman Grace Spencer wrote in a letter to Gov. Chris Christie. Smith chairs the state Senates Environmental and Energy Committee, and Spencer chairs the Assemblys Environment and Solid Waste Committee. Your Bernards Township Regional Chamber of Commerce Works for You!
Posted on: Fri, 14 Nov 2014 11:18:30 +0000
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