Something Rotten in the Garden State

“Something is rotten in the state of Denmark,” says Marcellus to Horatio. Hamlet, Act I, Scene 4. We learned earlier in the play that the Danish court has been festering with moral and political corruption since the death of Hamlet’s father. It’s Hamlet’s duty to “set it right,” but since he has a habit of putting things off, would Denmark have been better off to have called in a late medieval version of, say, New Jersey Governor Chris Christie who likes to say he gets things done?

If we wink at the scandal where Christie staffers—supposedly without his knowledge, but for political reasons—shut down sections of the George Washington Bridge and if we disregard the state’s near-bottom ranking for its fiscal health, maybe things are not so bad in the Garden State where, as we shall see, residents have a nose for things that are rotten.

Strategic Environmental Partners, LLC (SEP) bought the Fenimore Landfill in Roxbury Township, N.J., in 2010, expecting to cap and close it and then build and operate a 10-megawatt solar power generating facility. In October 2011, the state environmental agency (NJDEP) approved a plan that required SEP to close and maintain the landfill in accordance with the state solid waste management act (SWMA) and included a slew of conditions, schedules and documents.

The plan permitted SEP to accept approved fill material in order to create the topography and sub-surface conditions suitable for installing large solar panels. NJDEP and SEP signed an administrative consent order in October 2011, incorporating the plan. Among other things, the order required SEP to comply with local permits, orders, laws and regulations. If SEP failed to do so, NJDEP could terminate the closure plan unilaterally and take whatever action was necessary to protect the public health, safety or welfare.

The SEP facility then began receiving approved material, including significant amounts of ground gypsum board. By late 2012, anaerobic decomposition of the gypsum board was generating large volumes of hydrogen sulfide, which emanated from the site. (Hydrogen sulfide is an odorous, noxious, colorless, poisonous, flammable gas that produces a "rotten egg" odor. For some individuals, hydrogen sulfide may cause eye, nose, and throat irritations, headaches, and nausea, and can aggravate pre-existing respiratory issues.) At the same time, NJDEP began receiving complaints from residents living near the landfill about a foul odor and symptoms of irritated nose, throat, eyes and skin, and nausea, asthmatic events, and headaches. NJDEP investigated and determined that hydrogen sulfide wafting from the site was the cause of the odor.

Regarding odor control, the closure plan provided as follows:

The closure activities shall not cause any air contaminant to be emitted in violation of [state law]. Malodorous emissions shall be controlled by the use of 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.

NJDEP subsequently determined that SEP had not complied with the odor-control provision of the closure plan or with a court order requiring SEP to properly cover the landfill. Beginning on December 28, 2012, the NJDEP issued numerous administrative orders and civil penalty assessments against SEP. The orders stated that SEP repeatedly violated the state air quality control law by permitting odors to emanate in quantities causing air pollution.

On June 26, 2013, the NJDEP Commissioner issued an emergency order declaring that "the [l]andfill's continued and repeated emission of hydrogen sulfide in violation of the environmental standard established by [state law], combined with [SEP's] repeated failure to abate and mitigate the environmental harm . . . pose[d] an imminent threat to the environment." The order authorized NJDEP to seize control of the landfill "to take immediate action to abate the escape of hydrogen sulfide from the [landfill].” The agency promptly did so.

Throughout this time, Roxbury Township had its own concerns. A township ordinance, adopted from the state public health nuisance code, provides as follows:

The following matters, things conditions or acts and each of them are hereby declared to be a nuisance and injurious to the health of the inhabitants of this municipality:

The escape into the open air from any stack, vent, chimney, or any entrance to the open air, or from any fire into the open air of such quantities of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance to the inhabitants of this municipality or endanger their comfort, repose, health or safety.

After the township began receiving complaints from residents about the odor, local environmental health officials, Abigail Montgomery and Matthew Zachok, conducted numerous inspections in the vicinity of the landfill. Montgomery personally smelled the odor during her investigations, and consulted with NJDEP, which advised that the landfill was the source of the odor. She issued two ordinance violation notices, which demanded abatement. After SEP failed  to correct the problem, she issued nine summonses between December 2012 and February 2013. Zachok issued seventeen summonses between January 2013 and March 2013. Addressed to SEP and its director and managing partner, Richard Bernardi, the summonses alleged a violation of the township ordinance by allowing the landfill to emit a foul rotten egg odor.

At a trial, both Montgomery and Zachok testified that they personally smelled the odor on the date when each summons was issued. A NJDEP inspector testified that between November 2012 and April 2013, the NJDEP received over 1,500 citizen complaints about the odor. The inspector visited the vicinity of the landfill and personally smelled the odor. She testified about the techniques and tests the NJDEP used to determine that the landfill was the source of the odor.

Three township residents who lived near the landfill testified that beginning in November 2012, they complained many times to the township's health department and NJDEP about the foul odor. The witnesses explained how the odor detrimentally affected their own and family members' lifestyle and health. For example, one witness testified that she smelled the odor every day and it often woke up her family at night. She stated that the smell was so overwhelming she had to put masks on her children. Her daughter began to have migraine headaches for which she receives medical treatment; the family could no longer use their yard; and the "nauseating odor" had seeped into her home.

Another witness testified that she smelled the odor every day and the odor prevented her children from playing outside, worsened her son's asthma condition for which he receives additional medical treatment, and caused her daughter to have headaches. This witness also stated that the smell seeped into her house and was so bad on some occasions that she left with her children.

The chief of NJDEP's Bureau of Landfill and Hazardous Waste Permitting testified that in early 2013 NJDEP and SEP had discussed SEP’s using alternative odor-control products, such as potassium permanganate and a product called "Planet Breeze." However, NJDEP determined that potassium permanganate was "inconclusive as to the efficacy" and had not been approved for use at the landfill, and "Planet Breeze" could not be secured for use.

In their defense, SEP and Bernardi contended that: (1) the ordinance is unconstitutionally vague; (2) the ordinance is pre-empted by the SWMA; (3) the state failed to prove each charge beyond a reasonable doubt; and (4) they cannot be found to have violated the ordinance because NJDEP precluded SEP from abating the violations.

Following the trial, Judge Robert J. Gilson found the defendants guilty on all summonses and ordered them to each pay a fine of $26,000, plus court costs. His order and opinion held that the township ordinance was not pre-empted by the SWMA because the NJDEP and SEP had lawfully agreed in the consent order that local codes applied to the landfill. Judge Gilson next concluded that the ordinance was not unconstitutionally vague. The judge found that, by its express terms, namely the prohibition on the escape of smoke, fly ash, dust, or gases, the ordinance was reasonably specific. The judge determined that, by operating a former landfill subject to the consent order, the defendants knew that noxious odor was foreseeable. Indeed, such a risk materialized in some 1,500 complaints from township residents, many with specific injuries.

The judge rejected defendants' argument that the State failed to prove each summons beyond a reasonable doubt. The judge found that the testimony of Montgomery and Zachok substantiated the violations alleged in each summons, the testimony of the three residents established the adverse health and lifestyle effects caused by the odor, and the testimony of the NJDEP investigator confirmed that the odor emanated from the landfill.

Finally, the judge rejected defendants' argument that the NJDEP limited their ability to abate the violations by disapproving certain remediation measures. The judge noted that the defendants were responsible for managing and operating the landfill and it was their conduct that caused the release of the odor. The judge concluded that it was not legally or logically persuasive for defendants to argue that because the NJDEP did not approve certain remediation measures, defendants were not liable.

On appeal, the defendants reiterated, without success, the arguments they made to the trial judge. The appellate standard of review is whether sufficient credible evidence is present in the record to uphold the lower court’s findings. “We have considered defendants' contentions in light of the record and applicable legal principles and conclude they are without sufficient merit...,” the appellate panel said. For the same reasons Judge Gilson expressed in his opinion, his ruling was upheld.

State of New Jersey v. Strategic Environmental Partners, LLC, A-4968-13T4, N.J.Super.App.Div., Nov. 19, 2015