Strategic Environmental Partners, LLC v. New Jersey Department of Environmental Protection , 438 N.J. Super. 125 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5283-12T3
STRATEGIC ENVIRONMENTAL
PARTNERS, LLC, APPROVED FOR PUBLICATION
Appellant, November 13, 2014
v. APPELLATE DIVISION
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondent.
__________________________
Argued September 8, 2014 – Decided November 13, 2014
Before Judges Sabatino, Simonelli and Leone.
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).
The opinion of the court was delivered by
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.
2 A-5283-12T3
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 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.
I.
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
3 A-5283-12T3
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).1
The closure plan permitted SEP to accept approved fill
material onto the landfill in order to create the topography and
stratigraphy2 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
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.
1
The closure plan contemplated a forty-eight-month, four-phased
process commencing in October 2011 and ending in October 2015.
2
"Stratigraphy" is defined as "geology that deals with the
origin, composition, distribution, and succession of strata."
Merriam Webster's Collegiate Dictionary 1163 (10th ed. 1997).
4 A-5283-12T3
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,
5 A-5283-12T3
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, 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.3 The
Department investigated and determined that hydrogen sulfide
emanating from the landfill was the cause of the odor.
On December 10, 2012, the parties appeared before the
Chancery Division judge who was then handling the case. The
judge declined to restrain SEP from accepting fill material onto
the landfill or permit the Department from taking any action,
3
From mid-November 2012 to January 2013, the Department received
over six hundred complaints.
6 A-5283-12T3
finding there was no expert evidence of a toxic concentration of
hydrogen sulfide emanating from the landfill. Instead, the
judge ordered SEP to properly cover the landfill with soil
within forty-eight hours and import and store enough extra soil
to thereafter cover any exposed areas at the end of each
workday.
The judge also appointed an environmental expert to
determine whether the hydrogen sulfide emissions constituted a
threat to public health. The court-appointed expert
subsequently issued a report, as did the Department. Both
reports concluded that the hydrogen sulfide emissions caused the
"rotten egg" odor. Although the Department determined the
hydrogen sulfide emissions were at improper levels, neither the
Department nor the court-appointed expert concluded this posed
an imminent threat to the environment or public health and
safety.
The Department later determined that SEP had not complied
with the odor-control provision of the closure plan or with the
Chancery judge's order to properly cover the landfill.
Beginning on December 28, 2012, the Department issued numerous
administrative orders and notices of civil administrative
penalty assessment against SEP. The orders stated that SEP
repeatedly violated the New Jersey Air Pollution Control Act,
7 A-5283-12T3
N.J.S.A. 26:2C-1 to -36, and N.J.A.C. 7:27-5.2(a)4 by permitting
odors to emanate from the landfill into the outdoor atmosphere
in quantities causing air pollution.
The record does not reveal there were any further
proceedings in the Chancery Division matter. However, on
December 31, 2012, two Township residents filed a class action
complaint and OTSC against SEP in the Law Division, alleging the
maintenance of the landfill and foul odor emanating therefrom
constituted a nuisance that should be enjoined. Thereafter, in
January 2013, the Department initiated ambient air monitoring
near the landfill to obtain hydrogen sulfide readings. Thirty-
minute block readings indicated that hydrogen sulfide was
emanating from the landfill at levels exceeding the olfactory
threshold of 8 parts per billion (ppb).5 At the time the
Department took these readings, there were no standards for
hydrogen sulfide emissions in New Jersey.
The Department was joined as a third-party defendant in the
Law Division matter, and filed an OTSC seeking a judgment
permitting it to immediately seize control of the landfill in
4
N.J.A.C. 7:27-5.2(a) provides that "no person shall cause,
suffer, allow or permit to be emitted into the outdoor
atmosphere substances in quantities which shall result in air
pollution."
5
The level at which an odor is detectable to the olfactory
senses in the ambient air is around 8 ppb.
8 A-5283-12T3
order to alleviate the hydrogen sulfide emissions, among other
things. The Law Division judge set June 28, 2013 as the return
date. Before the return date, on June 26, 2013, Governor
Christie signed new legislation governing the closure of over
six hundred legacy landfills, codified at N.J.S.A. 13:1E-125.1
to -125.9 (the Legacy Landfill Law).6
The Legacy Landfill Law established 30 ppb averaged over a
thirty-minute period as the standard for hydrogen sulfide
emissions from a legacy landfill. N.J.S.A. 13:1E-125.4(a).
Upon the Department verifying complaints about hydrogen sulfide
odors and determining the odors emanated from a legacy landfill,
the Legacy Landfill Law authorizes the Department to require the
owner or operator to take certain corrective action. N.J.S.A.
13:1E-125.4(b)(1)-(4). If the Department finds a violation of
6
The Legacy Landfill Law also governs sanitary landfill
facilities and closed sanitary landfill facilities. N.J.S.A.
13:1E-125.1. It defines a "legacy landfill" as follows:
a landfill that ceased operations prior to
January 1, 1982, and received for disposal:
(1) solid waste; or (2) waste material that
was received for disposal prior to October
21, 1976 and that is included within the
definition of hazardous waste adopted by the
federal government pursuant to the "Resource
Conservation and Recovery Act, [42 U.S.C.A.
§§ 6901 to 6992k].
[N.J.S.A. 13:1E-125.1.]
9 A-5283-12T3
the hydrogen sulfide standard, it may institute an action or
proceeding in the Superior Court for injunctive and other
relief. N.J.S.A. 13:1E-125.4(c). The court may proceed in a
summary manner and grant temporary or interlocutory relief.
Ibid. If the court finds a violation, it "shall require the
owner or operator of the legacy landfill . . . to abate the
violation immediately and may require that wastes or materials
be mixed, rolled, or covered, or that odor shields be installed
to abate the violation." Ibid. The court may also enter "a
temporary or permanent injunction that requires that the wastes
or materials that are the source of the violation be mixed,
covered, or removed," or assess costs or damages against the
violator. N.J.S.A. 13:1E-125.4(c)(1)-(5).
The Legacy Landfill Law authorizes the Commissioner to
issue an emergency order as follows:
If the commissioner determines that any
activity or activities occurring at a legacy
landfill or closed sanitary landfill
facility present an imminent threat to the
environment or public health and safety, the
provisions of [N.J.S.A. 13:1E-9.5] shall
govern the issuance of and any challenge to,
any emergency order issued by the
commissioner to the owner or operator of a
legacy landfill or closed sanitary landfill
facility.
[N.J.S.A. 13:1E-125.9 (emphasis added).]
10 A-5283-12T3
N.J.S.A. 13:1E-9.5 governs a challenge to an emergency order,
and provides as follows:
Any action brought by a person seeking a
temporary or permanent stay of an emergency
order issued pursuant to this section shall
be brought in the Superior Court. Any
person bringing such an action shall have
the burden of demonstrating, by clear and
convincing evidence, that the activity or
activities specified in the emergency order
as presenting an imminent threat to the
environment or public health and safety do
not present an imminent threat to the
environment or public health and safety.
[N.J.S.A. 13:1E-9.5(c) (emphasis added).]
On June 26, 2013, the Commissioner issued an emergency
order pursuant to N.J.S.A. 13:1E-9.5(c) and -125.9. The
Commissioner asserted that N.J.S.A. 13:1E-125.9 empowered him to
abate violations of the hydrogen sulfide standards established
by N.J.S.A. 13:1E-125.4(a). The Commissioner noted there were
recorded hydrogen sulfide levels near the landfill exceeding the
30 ppb standard the "last several weeks" and thirty-minute
average readings exceeding the 30 ppb standard on June 9 and 15,
2013. The Commissioner declared 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." The Commissioner enjoined SEP from
11 A-5283-12T3
accepting fill material onto the landfill without the
Department's express permission, and authorized the Department
to seize control of the landfill "to take immediate action to
abate the escape of hydrogen sulfide from the [landfill]." The
Department seized control of the landfill on June 26, 2013,
within thirty minutes of when Governor Christie signed the new
legislation.
SEP requested a stay of the emergency order, raising
procedural, factual, and legal challenges. The Department
denied a stay. This appeal followed.7
II.
As a threshold matter, we address the jurisdictional issue.
The parties do not dispute that this appeal is from a final
state agency action. This court has exclusive jurisdiction to
review final decisions or actions of a state agency or officer.
R. 2:2-3(a)(2); see also Infinity Broad. Corp. v. N.J.
Meadowlands Comm'n, 187 N.J. 212, 223 (2006) (holding that
"'every proceeding to review the action or inaction of a state
administrative agency [is] by appeal to the Appellate
Division'") (quoting Cent. R.R. Co. v. Neeld, 26 N.J. 172, 184-
7
At oral argument of this appeal, counsel advised there are
several lawsuits pending in State and federal trial courts
relating to this matter and involving some or all of the same
parties.
12 A-5283-12T3
85, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371(1958)). This court also has exclusive jurisdiction "where it
appears to have concurrent or overlapping jurisdiction with a
trial court." Pressler & Verniero, Current N.J. Court Rules,
comment 3.2.1 on R. 2:2-3 (2015). Accordingly, where a statute
provides for review of agency action by the Superior Court, such
as N.J.S.A. 13:1E-9.5(c), "that designation should be construed
to refer to the Appellate Division of the Superior Court rather
than a trial division." Ibid.However, "the Appellate Division retains the discretion, in
an appropriate case, to retain jurisdiction in an appeal from
the action of a state agency, but to refer the matter to the Law
Division or to the agency for such additional fact-finding as it
deems necessary to a just outcome." Infinity Broad. Corp.,
supra, 187 N.J. at 227 (citations omitted). We may remand to
the trial court for a plenary hearing where there was no
mechanism for a hearing in the agency and no agency record on
which to conduct a meaningful review. State Farm Mut. Auto.
Ins. Co. v. N.J. Dep't of the Pub. Advocate, 227 N.J. Super. 99,
132-34 (App. Div. 1988), aff'd, 118 N.J. 336 (1990); Montclair
Twp. v. Hughey, 222 N.J. Super. 441, 446-47 (App. Div. 1987).
We conclude this court has jurisdiction to review the emergency
13 A-5283-12T3
order, but remand to the Law Division for the reasons stated
below.
We first conclude the Commissioner lacked authority to
issue the emergency order based on a violation of the hydrogen
sulfide standard established by N.J.S.A. 13:1E-125.4(a). Upon
the Department verifying complaints and determining the landfill
was the source of the hydrogen sulfide odor, N.J.S.A. 13:1E-
125.4(b)(1)-(4) only authorized the Department to require SEP to
take certain corrective action. Upon determining that SEP
violated the hydrogen sulfide standard, N.J.S.A. 13:1E-125.4(c)
only authorized the Department to institute an action in the
trial court for injunctive and other relief. Only the court had
the authority to order immediate abatement, corrective action,
or temporary or permanent restraints. N.J.S.A. 13:1E-
125.4(c)(1)-(5). No part of N.J.S.A. 13:1E-125.4 authorized the
Department or Commissioner to enjoin SEP from receiving fill
material onto the landfill or seize the landfill without first
obtaining judicial approval.
New Jersey Department of Environmental Protection v.
Interstate Recycling, Inc., 267 N.J. Super. 574, 577-78 (App.
Div. 1993), on which the Department relies, does not change this
result, but rather, supports it. In Interstate Recycling, the
operator of a solid waste facility ignored the Department's
14 A-5283-12T3
notices of violation of the SWMA. Id. at 575. Following a
plenary hearing in the Chancery Division, the court found the
operator violated the SWMA, and restrained the operator from
operating the facility. Ibid. Ultimately, the court held that
the Department's decision to institute an action in the Superior
Court for injunctive relief applied "where a state agency
charged with environmental enforcement seeks to enjoin repeated
violations of the police power statute." Id. at 577-78 (citing
N.J.S.A. 13:1E-9(d)).
Here, regardless of when the hydrogen sulfide violations
were alleged to have occurred, N.J.S.A. 13:1E-125.4 did not
authorize the Commissioner to issue an emergency order coram non
judice for a violation of N.J.S.A. 13:1E-125.4(a). The
Department could only direct SEP to take certain corrective
action, N.J.S.A. 13:1E-125.4(b)(1)-(4), or initiate an action in
the trial court, N.J.S.A. 13:1E-125.4(c). Neither the
Commissioner nor the Department had authority to issue an
emergency order enjoining SEP's activities on the landfill or
seizing control of the landfill without judicial action merely
because of a violation of the hydrogen sulfide standard in
N.J.S.A. 13:1E-125.4(a).
Even if the Commissioner had such authority, any action
predicated on N.J.S.A. 13:1E-125.4(a), or the Legacy Landfill
15 A-5283-12T3
Law in general, constituted an unlawful retroactive application.
There was no evidence that SEP violated N.J.S.A. 13:1E-125.4(a)
when the statute was actually in effect. Accordingly, using
violations against SEP that occurred before the statute became
effective required unlawful retroactive application. See James
v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 559 (2014) (applying two-
part retroactive analysis for a statute passed five months after
the issuance of an insurance policy and two months after the
accident prompting litigation).
Generally, the law favors prospective, rather than
retroactive, application of new legislation unless a recognized
exception applies. Id. at 556, 563. "The preference for
prospective application of new legislation 'is based on [the
Court's] long-held notions of fairness and due process.'" Id.
at 563 (quoting Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J.
33, 45 (2008)).
Courts must apply a two-part test to determine whether a
statute could be applied retroactively: (1) whether the
Legislature intended to give the statute retroactive
application; and (2) whether retroactive application "will
result in either an unconstitutional interference with vested
rights or a manifest injustice." Ibid. (quoting In re D.C., 146
16 A-5283-12T3
N.J. 31, 50 (1996) (quoting Phillips v. Curiale, 128 N.J. 608,
617 (1992))).
Under the first part of the James two-part test, there are
"three circumstances that will justify giving a statute
retroactive effect: (1) when the Legislature expresses its
intent that the law apply retroactively, either expressly or
implicitly; (2) when an amendment is curative; or (3) when the
expectations of parties so warrant." Ibid. (citations omitted).
Under the first circumstance, the Legislature may
demonstrate its intent to retroactively apply a statute by
stating so in the language of the statute or legislative
history, or by implication. Id. at 564 (citing Gibbons v.
Gibbons, 86 N.J. 515, 522 (1981)). If the legislation expressly
states it is to be applied retroactively, such intent should be
given effect "absent a compelling reason not to do so." Ibid.Implied intent, however, "may be found from the statute's
operation when retroactive application is necessary to fulfill
legislative intent," or otherwise "'necessary to make the
statute workable or to give it the most sensible
interpretation.'" Ibid. (quoting Gibbons, supra, 86 N.J. at
522).
Here, the Legislature expressly provided only one instance
where the Legacy Landfill Law would apply retroactively.
17 A-5283-12T3
Specifically, N.J.S.A. 13:1E-125.2 provides that an
administrative consent order entered into before or after the
law's effective date shall be voidable for any of the enumerated
reasons. Other than this provision, the Legacy Landfill Law
does not refer to any retroactive application, and the present
tense of the language in the statute generally suggests only
prospective application. Although N.J.S.A. 13:1E-125.2 allows
pre-existing administrative consent orders to be voidable from
particular future actions, this provision does not remotely
suggest or imply that any and all hydrogen sulfide emissions
that have ever occurred are subject to that statute.
Under the second circumstance, a statute may be applied
retroactively if it is "curative," meaning "designed to 'remedy
a perceived imperfection in or misapplication of a statute.'"
James, supra, 216 N.J. at 564 (quoting Schiavo v. John F.
Kennedy Hosp., 258 N.J. Super. 380, 386 (App. Div. 1992), aff'd,
131 N.J. 400 (1993)). "'Generally, curative acts are made
necessary by inadvertence or error in the original enactment of
a statute or in its administration.'" Ibid. To be considered
curative, however, the statute must "'not alter the act in any
substantial way, but merely clarif[y] the legislative intent
behind the [previous] act.'" Ibid. (second alteration in
original) (quoting 2nd Roc-Jersey Assocs. v. Town of Morristown,
18 A-5283-12T3
158 N.J. 581, 605 (1999)) (citing Schiavo, supra, 258 N.J.
Super. at 386).
The Legacy Landfill Law is not an amendment to an existing
law on legacy landfills; rather, it is entirely new legislation
designed to regulate legacy landfills, sanitary landfill
facilities, and closed sanitary landfill facilities. N.J.S.A.
13:1E-125.1. The Legacy Landfill Law creates an entirely new
body of legislation and does more than "'merely clarif[y] the
legislative intent'" behind the SWMA. James, supra, 216 N.J. at
564 (quoting 2nd Roc-Jersey Assocs., supra, 158 N.J. at 605).
Accordingly, the "curative" justification does not apply to the
Legacy Landfill Law.
Lastly, under the third circumstance, absent clear intent
for prospective application, the parties' expectations may
warrant retroactive application of the statute. Id. at 565
(citing Gibbons, supra, 86 N.J. at 523). In this case, while
the Department may have expected retroactive application of the
Legacy Landfill Law, SEP clearly had no such expectation and was
relying on presenting its case to the Law Division judge.
Even assuming the Legislature clearly intended retroactive
application of the Legacy Landfill Law, or the statute is
clearly curative, the court must still consider the second part
of the James test addressing whether retroactive application
19 A-5283-12T3
will result in either an unconstitutional interference with
vested rights or a manifest injustice. Ibid. This part
"focuses on whether the parties relied on prior law to their
detriment, such that retroactive application would cause a
deleterious and irrevocable result." Ibid. (quoting Innes v.
Innes, 117 N.J. 496, 511 (1990) (quoting Gibbons, supra, 86 N.J.
at 523-24)) (internal quotation marks omitted).
Regardless of whether retroactive application of the Legacy
Landfill Law was justified under one of the three aforementioned
circumstances, there is certainly a manifest injury to SEP since
it relied on presenting its case to the Law Division judge, as
N.J.S.A. 13:1E-125.4(c) indeed requires. The issuance of the
emergency order based on N.J.S.A. 13:1E-125.4(a) destroyed that
opportunity. Accordingly, even if permissible under part one of
the James test, retroactive application still fails part two
because it "would cause a deleterious and irrevocable result."
Ibid. (citations and internal marks quotations omitted). We,
therefore, vacate the emergency order because it was partially
based on N.J.S.A. 13:1E-125.4.
Although we conclude the Commissioner lacked authority to
issue an emergency order pursuant to N.J.S.A. 13:1E-125.4,
N.J.S.A. 13:1E-125.9 may have granted the Commissioner such
authority in this case, but only if he found that SEP's
20 A-5283-12T3
activities on the landfill presented an imminent threat to the
environment or public health and safety. Here, the Commissioner
found that SEP's failure to abate and mitigate the hydrogen
sulfide posed an imminent threat to the environment. However,
since the Commissioner could not premise this finding on SEP's
violation of N.J.S.A. 13:1E-125.4(a), there had to be expert
evidence establishing the hydrogen sulfide emissions presented
an imminent threat to the environment on June 26, 2013, and an
opportunity for SEP to challenge that evidence. Because the
Legacy Landfill Law provides no mechanism for a hearing and
there is no record on which we can conduct a meaningful review,
we vacate the emergency order and remand to the Law Division for
discovery, experts' reports, and a plenary hearing on the
limited issue of whether the hydrogen sulfide emissions
presented an imminent threat to the environment on June 26,
2013.8 Infinity Broad. Corp., supra, 187 N.J. at 223; State
Farm, supra, 227 N.J. Super. at 132-34 ; Montclair Twp., supra,
222 N.J. Super. at 446-47. If the Commissioner establishes a
prima facie case, SEP must demonstrate, by clear and convincing
8
Pursuant to Rule 2:5-5(b), we remand to the Law Division
rather than the Department. We do so also because there are
other lawsuits pending in the trial court involving the same
parties and issues.
21 A-5283-12T3
evidence, that the hydrogen sulfide emissions did not present an
imminent threat to the environment. N.J.S.A. 13:1E-9-5(c).
III.
Having reached the above conclusions, we need not address
SEP's constitutional arguments that the Department's seizure of
the landfill deprived SEP of due process and constituted an
unlawful taking without just compensation. However, we address,
and reject, SEP's contention that the Legacy Landfill Law
constitutes unlawful special legislation aimed at the landfill.9
With any statute, courts presume the law is constitutional.
State v. Ates, 217 N.J. 253, 268 (2014) (citations omitted),
cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___
(2014). The challenger of a statute "must shoulder the burden
to overcome that strong presumption." Ibid. Courts "will
afford every possible presumption in favor of an act of the
Legislature" when reviewing State statutes for
constitutionality. Town of Secaucus v. Hudson Cnty. Bd. of
Taxation, 133 N.J. 482, 492 (1993), cert. denied, 510 U.S. 1110,
114 S. Ct. 1050, 127 L. Ed. 2d 372 (1994).
9
Prior to passing the Legacy Landfill Law, the Legislature
considered, but did not pass, a bill that only concerned the
landfill. Instead, the Legislature passed the Legacy Landfill
Law, which governs hundreds of landfills, including landfills
closed before January 1, 1982.
22 A-5283-12T3
"Where alternative interpretations of a statute are equally
plausible, the view sustaining the statute's constitutionality
is favored." Ibid. "Only a statute 'clearly repugnant to the
constitution' will be declared void." Id. at 492-93 (quoting
Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212,
222-23 (1985)). No statute can authorize unconstitutional
practices, and when a statute and the constitution conflict,
"the statute must give way." Id. at 493 (citing Twp. of W.
Milford v. Van Decker, 120 N.J. 354, 357 (1990)).
The New Jersey Constitution mandates that "[t]he
Legislature shall not pass any private, special or local laws."
N.J. Const. art. IV, § VII. As our Supreme Court has held,
[f]rom a constitutional standpoint, a law is
regarded as special legislation when, by
force of an inherent limitation, it
arbitrarily separates some persons, places
or things from others upon which, but for
such limitation, it would operate. The test
of a special law is the appropriateness of
its provisions to the objects that it
excludes.
[Secaucus, supra, 133 N.J. at 494 (quoting
Town of Morristown v. Woman's Club of
Morristown, 124 N.J. 605, 622 (1991)) (other
citations and internal quotation marks
omitted).]
The Court established a three-part test for determining
whether a statute constitutes special legislation:
[W]e first discern the purpose and object of
the enactment. We then undertake to apply
23 A-5283-12T3
it to the factual situation presented.
Finally we decide whether, as so applied,
the resulting classification can be said to
rest upon any rational or reasonable basis
relevant to the purpose and object of the
act.
[Vreeland v. Byrne, 72 N.J. 292, 300-01
(1977).]
For the first step, to determine the rational purpose for a
statute under a constitutional challenge, the court is not
limited to the stated purpose of the legislation and "'should
seek any conceivable rational basis.'" Secaucus, supra, 133
N.J. at 494-95 (quoting Mahwah v. Bergen Cnty. Bd. of Taxation,
98 N.J. 268, 283, cert. denied, 471 U.S. 1136, 105 S. Ct. 2677,
86 L. Ed. 2d 696 (1985)).
Each provision of the Legacy Landfill Law had an obvious
legitimate purpose. The legislation's ultimate goal was to
protect the public and environment from harm and nuisance
related to legacy landfills, sanitary landfill facilities, and
closed sanitary landfill facilities. N.J.S.A. 13:1E-125.1. The
overarching goal of limiting public contamination from these
facilities is consistent with the Department's purpose of
working for "conservation of the natural resources of the State,
the promotion of environmental protection[,] and the prevention
of pollution of the environment of the State." N.J.S.A. 13:1D-
9. All the provisions of the Legacy Landfill Law, which govern
24 A-5283-12T3
management of administrative consent orders, site plan approval,
hydrogen sulfide emissions, financial assurance for post-closure
activities, escrow for post-closure monitoring costs, licensed
professional engineer oversight, remedies in the event of a
violation, and the issuance of emergency orders for imminent
threats, all serve the general legitimate purpose of preserving
the environment. N.J.S.A. 13:1E-125.2.
Under the second Vreeland step, the court must apply the
law to the factual context to determine whether exclusions from
the statute's applications can be identified. Secaucus, supra,133 N.J. at 510 (Stein, J., dissenting). Whether a statute
constitutes special legislation generally turns on "'what is
excluded and not what is included.'" Id. at 511 (Stein, J.,
dissenting) (quoting Newark Superior Officers Ass'n, supra, 98
N.J. at 223). As the Court stated,
the Legislature has wide discretion in
determining the perimeters of a
classification, distinctions may be made
with substantially less than mathematical
exactitude, and an adequate factual basis
for the legislative judgment is presumed to
exist. We must also be mindful of the
strong presumption in favor of
constitutionality, and the traditional
judicial reluctance to declare a statute
void, a power to be delicately exercised
unless the statute is clearly repugnant to
the Constitution.
25 A-5283-12T3
[Paul Kimball Hosp., Inc. v. Brick Twp.
Hosp., Inc., 86 N.J. 429, 446-47 (1981)
(citations omitted).]
The Legacy Landfill Law serves the legitimate governmental
purposes described under the first Vreeland step without any
exclusions worthy of overriding the presumption in favor of
constitutionality. The Legacy Landfill Law generally covers all
legacy landfills governed by the SWMA, not just the landfill at
issue here. N.J.S.A. 13:1E-125.1. The law's provisions are not
so specific to the landfill or SEP that other communities with
legacy landfills could not come within its scope. There are
over six hundred legacy landfills across the State subject to
the Legacy Landfill Law. Considering the breadth of facilities
the law governs, SEP's contention that it only applies to the
landfill lacks merit.
Finally, under the third Vreeland step, the court must
determine whether "the resulting classification can be said to
rest upon any rational or reasonable basis relevant to the
purpose and object of the act." Vreeland, supra, 72 N.J. at
301. In this case, the broad classification of a legacy
landfill fits within the broad scheme of the SWMA for the
Department to manage and regulate the State's management of
solid waste. Classifying a particular type of landfill
facility, which is common throughout the State, to be subject to
26 A-5283-12T3
a particularized set of statutes and regulations serves the
purpose of allowing the Department to "conserv[e] . . . the
natural resources of the State, . . . promot[e] . . .
environmental protection[,] and . . . prevent[] . . . pollution
of the environment of the State." N.J.S.A. 13:1D-9. The Legacy
Landfill Law rationally and effectively meets these goals, and
the classification of legacy landfills is rationally related to
the purpose and object of the law and the SWMA in general.
Accordingly, we conclude that the Legacy Landfill Law does not
constitute unlawful special legislation aimed at the landfill.
Because it is possible that, on remand, the parties may
resolve this dispute conclusively on non-constitutional grounds,
we decline to address at this time other constitutional issues
raised by SEP. As a general rule, our courts strive to avoid
reaching constitutional issues unless they are "'imperative to
the disposition of litigation.'" Comm. to Recall Robert
Menendez v. Wells, 204 N.J. 79, 96 (2010) (quoting Randolph Twp.
Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006)). The
trial court's forthcoming factual findings concerning the
emergency order may also bear on any constitutional analysis
that may be required if the case is litigated further. See J.B.
v. N.J. State Parole Bd., 433 N.J. Super. 327, 330-31 (App. Div.
2013), certif. denied sub nom., B.M. v. N.J. State Parole Bd.,
27 A-5283-12T3
217 N.J. 296 (2014) (remanding to the trial court certain fact-
finding functions in order to evaluate the appellant's
constitutionally-based challenge to a State agency's actions).
Affirmed in part as to the claim of unconstitutional
special legislation; otherwise vacated and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.10 If either party is aggrieved by the trial
court's determinations following a plenary hearing and fact-
finding, that party may file a new appeal with this court.
10
Although Infinity Broad. Corp., supra, 187 N.J. at 227,
suggests that the appellate court can retain jurisdiction while
fact-finding occurs in the trial court, we discern no practical
imperative to do so in this case. For one thing, it is not yet
clear which party may be a future appellant, depending on the
outcome of the remand. In addition, the trial court may choose
in its discretion to consolidate the present litigation with
some or all of the other pending related cases involving the
landfill. If such consolidation occurs, it is conceivable that
additional parties other than the Department and SEP may seek
appellate review at the same time. The uncertain future
dimensions of both this case and the related cases makes it
preferable that fresh appeals be filed, if in fact further
appellate review is sought.
28 A-5283-12T3