Argued: September 8, 2014.
Approved for Publication November 13, 2014
[Copyrighted Material Omitted]
On appeal from the New Jersey Department of Environmental Protection.
Matthew M. Fredericks argued the cause for appellant.
Robert J. Kinney, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kinney and Aaron A. Love, Deputy Attorney General, on the brief).
Before Judges SABATINO, SIMONELLI and LEONE. The opinion of the court was delivered by SIMONELLI, J.A.D.
[438 N.J.Super. 131] SIMONELLI, J.A.D.
Appellant Strategic Environmental Partners, LLC (SEP), owner of the Fenimore Landfill (landfill) located in the Township of Roxbury, appeals from a June 26, 2013 emergency order issued by the Commissioner of respondent New Jersey Department of Environmental Protection (Department). The order enjoined SEP from accepting any material onto the landfill without the Department's permission, and authorized the Department to immediately seize control of the landfill to abate an alleged imminent threat to the environment arising from continued emissions of hydrogen sulfide. Pursuant to the emergency order, the Department seized control of the landfill that same day and then undertook or oversaw various remedial measures.
For the reasons that follow, we vacate the emergency order, without prejudice, and remand to the Law Division for further proceedings. We do so because, as we explain, infra, the Department exceeded its authority under N.J.S.A. 13:1E-125.4 by seizing control of SEP's property without first securing judicial approval. The Department also erred in basing the emergency order retroactively on SEP's past hydrogen sulfide emissions by applying a statutory emissions standard that did not yet exist until the applicable statute was enacted the same morning the order was issued. Finally, the Department has yet to make the requisite showing to justify an emergency order under N.J.S.A. 13:1E-125.9.
On remand, the Department shall have the opportunity to present expert and other proof to the trial court to support the Commissioner's finding that the hydrogen sulfide emissions presented an imminent threat to the environment on June 26, 2013. In turn, SEP shall have the opportunity to present contrary evidence and attempt to meet its heavy burden under the statute [438 N.J.Super. 132] to stay the Department's intervention. The trial court will then engage in appropriate fact-finding that will enable appropriate appellate review, should either or both parties thereafter seek it.
Lastly, we specifically reject SEP's contention that the new statute on which the Department relied in this case constitutes unconstitutional special legislation, and decline to address SEP's other constitutionally-based
challenges to the Department's actions.
The following facts inform our review. The landfill is a 101-acre site. From the early 1950's to the late 1970's, approximately sixty acres were used as a solid waste landfill. The landfill ceased operating in 1977, but was never capped or closed.
In 2010, SEP purchased the property and planned to cap and close the landfill and install and operate a 10-megawatt solar power generating facility using an array of photovoltaic panels. In October 2011, the Department approved a closure and post-closure plan for the landfill, which required SEP to close and maintain the landfill in accordance with the requirements of the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -99.47, and included certain conditions and a plethora of other plans, schedules, and documents (the closure plan).
The closure plan permitted SEP to accept approved fill material onto the landfill in order to create the topography and stratigraphy suitable for installation of large solar panels. Regarding odor control, the closure plan provided as follows:
The closure activities shall not cause any air contaminant to be emitted in violation of N.J.A.C. 7:27-5.2(a). Malodorous emissions shall be controlled by the use of [438 N.J.Super. 133] daily cover. In the event that this is not satisfactory, a suitable deodorant as approved and permitted by the Department's Air [Quality] Program shall be used or the Department shall require a change in the type of recyclable materials accepted. Malodorous solid waste shall be covered immediately after excavation, unloading or redeposition with a minimum of six inches of cover material or approved alternative material.
The Department and SEP executed an administrative consent order in October 2011, which memorialized the closure plan (the consent order). If SEP violated any condition, the consent order permitted the Department to terminate the closure plan unilaterally upon written notice to SEP and take immediate action or seek injunctive relief to protect the public health, safety, or welfare.
By 2012, the Department determined that SEP had not complied with certain conditions of the closure plan. On May 14, 2012, the Department terminated the consent order and notified SEP it intended to revoke the closure plan. On May 18, 2012, the Department ordered SEP to immediately cease receiving fill material onto the landfill and warned it would take immediate legal action if SEP failed to comply. In response, on May 21, 2012, SEP filed a verified complaint and order to show cause (OTSC) in the Chancery Division, seeking to enjoin the Department from taking any action.
Prior to May 2012, SEP accepted approved fill material onto the landfill, including significant amounts of ground gypsum board, such as wallboard. In November 2012, anaerobic decomposition of the ground gypsum board began generating large volumes of hydrogen sulfide, which emanated from the landfill. Hydrogen sulfide is an odorous, noxious, colorless, poisonous, flammable gas that produces
a " rotten egg" odor. Hydrogen sulfide is not on the list of New Jersey air toxics, see N.J.A.C. 7:27-21.1, and the New Jersey Department of Health (DOH) has determined that hydrogen sulfide has not been shown to cause cancer in humans, and its possible ability to cause cancer in animals has not been studied thoroughly. Similarly, based on available data, the DOH does not believe there would be long-term adverse health effects from the emission of hydrogen sulfide. However, for some individuals, hydrogen sulfide may cause eye, nose, and throat irritations, [438 N.J.Super. 134] headaches, and nausea, as well as aggravate pre-existing respiratory issues.
In mid-November 2012, the Department began receiving complaints from individuals living near the landfill about the " rotten egg" odor and symptoms of irritated nose, throat, eyes, and skin, nausea, asthmatic events, and headaches. The Department investigated and determined that ...