ROXBURY, NJ – A state appeals court decided Thursday that Strategic Environmental Partners, the owners of the former Fenimore Landfill site, must pay about $52,000 in fines to Roxbury for odors released from the dump several years ago, but a federal court case could have money going in the other direction if SEP wins.
While the state Superior Court Appellate Division refused Thursday to overturn lower court rulings that said SEP must pay the fines to Roxbury, a federal court has yet to decide if SEP can sue Roxbury to recover the money it spent on the dump before the state seized the property in 2013 to thwart the odors.
In the federal litigation, SEP argues it can sue Roxbury under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the New Jersey Spill Act, laws that enable those who clean polluted sites to recoup - from parties responsible for the pollution - the money they spent.
SEP contends the 60-acre landfill, which operated under different owners for nearly three decades before being abandoned in the late 1970s, contains hazardous waste. It says its work on the site, as preparation for a scuttled solar panel field, constituted a form of remediation that falls within the CERCLA and the Spill Act.
SEC said it spent about $2.2 million after buying the site in 2010 “with the intent of properly closing the landfill“ so it could erect the solar panels. It also said Roxbury and the surrounding towns used Fenimore as a dump for decades and are therefore among the “responsible parties” for any hazardous substances in the ground.
Arguing against SEP’s federal court move, Roxbury asserts SEP’s actions at the site are governed not by CERCLA and the Spill Act but by the state’s Solid Waste Management Act. That law does not allow polluted site owners to seek compensation from municipalities for money they spend on remediation.
The state Department of Environmental Protection (DEP) booted SEP from the property in 2013 after SEP failed to thwart noxious odors that emanated from fill material dumped there. The smell came from hydrogen sulfide generated by wet wallboard particles in the fill material, debris brought to Fenimore during the cleanup from Hurricane Sandy.
The DEP subsequently installed an impervious cap over a portion of the site and a system that collects the hydrogen sulfide and burns it off.
SEP is also challenging, in court, the legality of the DEP’s seizure of the property. Last year, the state Superior Court Appellate Division agreed with SEP but did not immediately allow SEP to regain control of the property.
That matter, along with the federal case, remains in litigation.