STATE OF NEW JERSEY v. STRATEGIC ENVIRONMENTAL PARTNERS LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STRATEGIC ENVIRONMENTAL PARTNERS,

LLC and RICHARD BERNARDI,

Defendants-Appellants.

_________________________________

November 19, 2015

Submitted October 26, 2015 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 13-007.

MatthewM. Fredericks,attorney for appellants.

Douglas R. Cabana, Roxbury Township Municipal Prosecutor, attorney for respondent.

PER CURIAM

This appeal involves twenty-six municipal summonses issued to defendant Strategic Environmental Partners, LLC (SEP), owner of the Fenimore Landfill (landfill) located in the Township of Roxbury (Township), and its director and managing partner, Richard Bernardi,1 for violating Township Ordinance 22-2 by allowing a foul rotten egg odor to emit from the landfill. The ordinance, adopted from Section 2.1(d) of the Public Health Nuisance Code of New Jersey (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.[2]

On appeal, defendants contend, as they did at the trial de novo in the Law Division, that: (1) the ordinance is unconstitutionally vague; (2) the ordinance is pre-empted by the New Jersey Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -99.47; (3) the State failed to prove each charge beyond a reasonable doubt; and (4) they cannot be found to have violated the ordinance because the New Jersey Department of Environmental Protection (NJDEP) precluded SEP from abating the violations. We reject these contentions and affirm.

By way of background, we recite certain facts set forth in New Jersey Department of Environmental Protection v. Strategic Environmental Partners, LLC, 438 N.J. Super. 125 (App. Div. 2014), certif. denied, 221 N.J. 218 (2015). In 2010, SEP purchased the landfill and planned to cap and close it and install and operate a 10-megawatt solar power generating facility using an array of photovoltaic panels. Id. at 132. In October 2011, the NJDEP 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 SWMA, and included certain conditions and a plethora of other plans, schedules, and documents (the closure plan). Ibid.

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. Ibid. 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 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.

[Id. at 132-33.]

The NJDEP and SEP executed an administrative consent order in October 2011, which memorialized the closure plan (the ACO). Id. at 133. Among other things, the ACO required SEP to comply with "local permits . . . codes, rules, regulations and orders[.]" If SEP violated any condition, the ACO permitted the NJDEP 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. Ibid.

Prior to May 2012, SEP accepted approved fill material onto the landfill, including significant amounts of ground gypsum board, such as wallboard. Ibid. In November 2012, anaerobic decomposition of the ground gypsum board began generating large volumes of hydrogen sulfide, which emanated from the landfill. Ibid. Hydrogen sulfide is an odorous, noxious, colorless, poisonous, flammable gas that produces a "rotten egg" odor. Ibid. For some individuals, hydrogen sulfide may cause eye, nose, and throat irritations, headaches, and nausea, and can aggravate pre-existing respiratory issues. Id. at 133-34.

In mid-November 2012, the NJDEP began receiving complaints from residents living near the landfill about a foul rotten egg odor and symptoms of irritated nose, throat, eyes, and skin, nausea, asthmatic events, and headaches. Id. at 134. The NJDEP investigated and determined that hydrogen sulfide emanating from the landfill was the cause of the foul odor. Ibid.

The 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. Ibid. Beginning on December 28, 2012, the NJDEP issued numerous administrative orders and notices of civil administrative penalty assessment against SEP. Ibid. The orders stated that SEP repeatedly violated the New Jersey Air Pollution Control Act, N.J.S.A. 26:2C-1 to -36, and N.J.A.C. 7:27-5.2(a) by permitting odors to emanate from the landfill into the outdoor atmosphere in quantities causing air pollution. Id. at 134-35.

On June 26, 2013, the Commissioner of the NJDEP 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 [N.J.S.A. 13:1E-125.4], combined with [SEP's] repeated failure to abate and mitigate the environmental harm . . . pose[d] an imminent threat to the environment." Id. at 137. The Commissioner authorized the NJDEP to seize control of the landfill "to take immediate action to abate the escape of hydrogen sulfide from the [landfill]." Ibid. The NJDEP seized control of the landfill on June 26, 2013. Ibid.

The record in the present appeal reveals that beginning in November 2012, the Township received numerous complaints from residents about the rotten egg odor. In response thereto, the Township's Environmental Health Specialists, Abigail Montgomery and/or Matthew Zachok, conducted numerous inspections in the vicinity of the landfill. Montgomery personally smelled the odor during her investigations, and consulted with the NJDEP, who advised that the landfill was the source of the odor. Montgomery issued to SEP two notices of violation of the ordinance, demanding abatement. After SEP failed to abate, Montgomery issued nine summonses to defendants between December 6, 2012 and February 1, 2013, and Zachok issued seventeen summonses between January 14, 2013 and March 14, 2013. Both Montgomery and Zachok testified at the trial in the municipal court that they personally smelled the odor on each date noted in each summons they issued.

A NJDEP air compliance and enforcement inspector testified that between November 2012 and April 2013, the NJDEP received over 1500 complaints about the odor. The inspector conducted inspections in 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 numerous times to the Township's Health Department and the NJDEP about the foul odor. The witnesses testified about how the odor detrimentally affected their and their 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 also testified 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 testified that the smell seeped into her house and was so bad on some occasions that she left with her children.

The chief of the NJDEP's Bureau of Landfill and Hazardous Waste Permitting testified about discussions between the NJDEP and SEP in early 2013 about SEP using alternative odor-control products, such as potassium permanganate and a product called "Planet Breeze." The 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.

Following a trial de novo in the Law Division, in a May 12, 2014 order and written opinion, Judge Robert J. Gilson found defendants guilty on all summonses and ordered them to each pay a fine of $26,000, plus court costs. The judge first found that the ordinance was not pre-empted by the SWMA because the NJDEP and SEP agreed in the ACO that SEP would be required to comply with all local regulations indicated that local codes also applied to the landfill. The judge also noted that the NJDEP officials who testified at the municipal court trial did not raise the preemption issue, and that even if there was preemption, the NJDEP could permit a local municipality to place restrictions on actions concurrent with its jurisdiction.

Judge Gilson next determined that State v. Golin, 363 N.J. Super. 474 (App. Div. 2003), and Guidi v. Atlantic City, 286 N.J. Super. 243 (App. Div. 1996), supported the conclusion 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 more specific in defining the prohibited conduct than those ordinances struck down in Golin and Guidi. The judge determined defendants were operating a former landfill and were well-aware, by virtue of the ACO, that obnoxious odors could be an issue and could cause harm. The judge also found that the Township could point to objective facts that allowed SEP to understand it was violating the ordinance, including operating a former landfill where the escape of gas was a recognized risk, and the 1500 complaints from Township residents, some of which involved specific injury to those residents. The judge concluded the ordinance was neither facially unconstitutional, nor unconstitutional as applied in this case.

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 proved the violations alleged in each summons, the testimony of the three residents provided proved the adverse health and lifestyle effects caused by the odor, and the testimony of the NJDEP investigator proved 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 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 from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of a municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Segars, 172 N.J. 481, 488 (2002). However, we afford no special deference to the court's interpretation of the law and the legal consequences that flow from established facts and review those issues de novo. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered defendants' contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons Judge Gilson expressed in his written opinion. However, we make the following additional comments.

Guidi concerned a municipal ordinance that adopted Code Section 2.1(b). Guidi, supra, 286 N.J. Super. at 245. Section 2.1(b) provided 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

. . . .

(b) Any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort or general well-being of the inhabitants of this municipality.

[Ibid.]

In striking down the municipal ordinance, we were concerned that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation. Id. at 246. We found that a municipality acting through its police power must direct ordinances with "'reasonable specificity toward the conduct to be prohibited.'" Ibid. (quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed. 2d 214, 217 (1971)). Applying that standard to the municipal ordinance, we found that pigeons were a common enough problem in a coastal town for Atlantic City to address with an ordinance specifically directed at prohibiting that conduct. Id. at 246.

Golin concerned a municipal ordinance that adopted Code Sections 2.1(a) and (b). Golin, supra, 363 N.J. Super. at 477-78. Section 2.1(a) provided 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

(a) Any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality.

[Id. at 480.]

The defendant was fined for allowing tree branches on her property to become overgrown and hang over a public sidewalk. Id. at 479. We applied Guidi to the ordinance and found it was "unconstitutionally vague and unenforceable." Id. at 484. We determined there was no "discernable difference" between Sections 2.1(a) and 2.1(b). Ibid. Again, we noted that there was "no reason that the municipality cannot enact a more specific ordinance to proscribe the objectionable conduct. Sidewalks and tree branches are at least as common in East Windsor as pigeons are in Atlantic City." Ibid.

In light of these cases, the ordinance here passes constitutional muster largely because it is more tailored and satisfies our concerns in Guidi and Golin. Unlike in those cases, where the Code sections referenced "any matter, thing, condition or act," the ordinance here is more specific. As Judge Gilson correctly found, the ordinance by its express terms prohibits the escape of smoke, fly ash, dust or gases. As such, the ordinance is not unconstitutionally vague.

Nor is the ordinance preempted by the SWMA. The SWMA is a comprehensive act that preempts local ordinances that interfere with the disposal, use, and control of solid waste. Twp. of Chester v. N.J. Dep't of Envtl. Prot., 181 N.J. Super. 445, 450-51 (App. Div. 1981). There, the NJDEP granted a third-party approval to build an access road to its sanitary landfill in the Township. Id. at 447. The Township's zoning ordinances required site plan approval and an environmental impact statement before such an approval could be granted at the municipal level. Id. at 448. The Township conceded that in most "major matters," the SWMA would preempt local ordinances, but argued that site plan approval and environmental impact statements, constituted "interstitial" interests not preempted by the SWMA. Id. at 447-49.

Applying the applicable factor test from Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 461-63 (1976), we found preemption. Citing the SWMA's legislative findings and the accompanying regulations, we were convinced that the SWMA reflected a "comprehensive regulatory scheme." Id. at 451. In particular, we pointed to a SWMA regulation that required landfill owners to submit engineering designs to the NJDEP for approval. Id. at 451-52. We reasoned that mandated design approval at both the State and municipal level "may serve to frustrate the purposes of the [SWMA]." Id. at 452.

In Southern Ocean Landfill, Inc. v. Township of Ocean, 64 N.J. 190, 195 (1974), the Court found that the "fatal weakness" in a municipal ordinance which attempted to regulate sanitary landfills was that it was "in direct conflict with the overall legislative plan." In Township of Little Falls v. Bardin, 173 N.J. Super. 397 (App. Div. 1979), certif. denied, 82 N.J. 286 (1980), we rejected a municipal ordinance that prevented landfills from operating anywhere in the municipality's borders. We again focused on the conflict element and struck down the ordinance as it "quite obviously frustrate[d] the objectives of the [SWMA]." Id. at 418.

It is clear from these cases that the dispositive issue in determining preemption is whether an ordinance frustrates or conflicts with the SWMA in the disposal, use, and control of solid waste. There was no conflict between the SWMA and the ordinance because the ordinance did not aim to control landfills or the disposal, use, and control of solid waste. Rather, the ordinance sought to prevent the emission of vapors or gases from anywhere within the Township, not just the landfill, that caused injury, detriment or annoyance to Township residents or endangered their comfort, repose, health or safety, which the odor in this case caused.

Affirmed.

1 We shall sometimes refer to SEP and Bernardi collectively as defendants.

2 N.J.S.A. 26:3-69.2 permits a municipality to adopt the Code in a municipal ordinance.