Source: Star-Ledger (NJ), November 16, 2013
Posted on: http://envfpn.advisen.com
A Superior Court judge has ruled that the owners of the Fenimore Landfill in Roxbury are responsible for all “recoverable costs” associated with the closure of the facility.
The order by Judge Thomas Manahan, written Thursday and released yesterday in Morristown, finds that the landfill owner, Strategic Environmental Partners, violated terms of the consent order that allowed the landfill to reopen.
But the judge’s ruling does not specify an amount. It says a hearing must be scheduled within 45 days to determine the costs Strategic would pay to the state Department of Environmental Protection.
The DEP seized the landfill in June after thousands of complaints about rotten-egg-like, hydrogen sulfide odors and associated health problems. The agency is expected to submit a figure that would reimburse the state for the cleanup and closure costs.
But in a hearing yesterday, Manahan held out hope the DEP and Strategic can make “some attempt at resolution.” The agency and company are battling each other in state and federal courts in a total of eight civil cases in which the issues frequently overlap.
Strategic “may be somewhat under the gun financially,” the judge said, adding that the “multi-million-dollar expenses” needed for the cleanup and closure might be paid more easily if there were a settlement of the litigation.
Manahan’s ruling also terminated the consent order that permitted the landfill’s reopening in 2011 with plans to cap it with additional debris, close it and build a solar facility there. The landfill had been closed since 1977.
Manahan said Strategic operators Rich and Marilyn Bernardi violated the consent order by failing to fund an escrow account with revenues from haulers’ tipping fees, “which was a provision designed to ensure the availability of funds for the closure project.”
The DEP said Strategic maintained a balance of only $100 in its escrow account and failed to deposit tipping fee revenues of at least $1.265 million, according to the judge’s decision.
Although Strategic challenged the escrow requirement, saying it applied only to landfills closed after 1982, Manahan said a law passed in June that changed that provision was applicable. The DEP seized the landfill less than an hour after Gov. Chris Christie signed the legislation sponsored by Sen. Anthony Bucco (R-Morris).
Strategic’s attorney, Matthew Fredericks, said he is challenging that law in federal court.
Fredericks did not immediately respond to Manahan’s decision, saying he needs time to study it.
Manahan delayed ruling in a related lawsuit in which the DEP sought a total judgment of $4.4 million against Strategic for violating the Solid Waste Management Act and the Air Pollution Control Act. Deputy Attorney General Robert Kinney, representing the DEP, also sought to freeze Strategic’s assets by imposing a “constructive trust,” so that it may deal with its “escrow obligations.”
Manahan said he doesn’t have enough information to levy specific penalties and he awaits more data from both sides. But, the judge said, there is no question that Strategic violated the air pollution law, because it involves “strict liability.”
“Strict liability doesn’t require negligence or fault,” Manahan said. “If it happens, you’re accountable.”
Fredericks said that since DEP took over the landfill in June and instituted a variety of cleanup measures, “not only have they not abated the odors, they have made them worse.” On Thursday, Roxbury residents held a protest rally at the Statehouse in Trenton.
Strategic has contended that DEP “thwarted” its attempts to clean up the landfill, and Manahan acknowledged yesterday there was a “genuine dispute” over those issues that would make it complicated to assess specific penalties.
Kinney countered that Strategic was at fault because when it was operating the landfill, “it was not covered with soil every day, even though they said it was.”
“The materials brought to the site by the defendant are the cause of these emissions,” Kinney added.