Landfill owners sue Roxbury, DEP, lawmaker

TRENTON – The ongoing saga of the Fenimore Landfill in Roxbury, Morris County, entered a new phase Thursday when the landfill owners sued numerous parties in federal court.

The owner, Strategic Environmental Partners, and Marilyn and Richard Bernardi have sued the state Department of Environmental Protection, Roxbury officials and a state senator alleging an attempt to deprive them of their property.

On June 26, DEP took over the landfill right after Gov. Chris Christie signed into law S2617, which deals with closure of so-called legacy landfills that ceased operations before 1982.

DEP reported it was taking control of and would supervise proper capping of the landfill due to what it reported were elevated levels of hydrogen sulfide gas.

The bill itself had been a political football.  Democratic Sen. Steve Sweeney at one point earlier this year had held up hearings on bills sponsored by Republicans as part of an ongoing dispute with Senate Minority Leader Tom Kean Jr.  The landfill bill had been sponsored by Republican Sen. Anthony Bucco.

At packed hearings involving the bill once that political dispute was resolved, residents and Roxbury officials told stories of longtime environmental problems and urged DEP to take over the landfill.

“Kids have to wear masks going to school buses,” Mayor Fred Hall told lawmakers.

But according to this lawsuit, the owners allege that DEP’s takeover and the bill sponsored by Bucco interfered with an ongoing remediation program.

The suit says that Roxbury used the old Fenimore site as a municipal dump for decades before SEP acquired it in 2010, and that stormwater from the landfill leaked into the nearby soil and waterways.

The landfill never was properly capped, according to the lawsuit, which alleges that in the 1980s Roxbury rezoned surrounding woodlands for residential development, and eventually OK’d a 315-home project known as Poet’s Peak.

SEP claims in the suit that it did not pollute the property, but has been remediating it with the intention of turning it into a “clean” energy park with photovoltaic solar panels.

The plaintiffs claim that local and state officials “feared liability” for allowing homes to be built. Bucco, reached Friday mornng, said he had not been served yet, and could not comment until after reviewing the lawsuit.

DEP said Thursday it had not been served with a copy of the suit, and spokesman Larry Ragonese said that regarding ongoing work at the landfill, “Our engineers are working at the site right now.  We want to give those folks some relief while we sort out in the long term what will happen.”

Matthew Fredericks, attorney for the landfill owners, said that although DEP may be doing what it thinks is appropriate, odors have become worse since the state agency got involved. He said that as a result of the state’s actions, the landfill owners are being deprived of their property rights and can’t conduct activities designed to remediate the site.

Back in may, the Office of Legislative Services actually issued an opinion that if the bill was not constructed just right, it could raise constitutional issues about equal protection.

Previous stories:

OLS points out constitutional concerns

Roxbury mayor: Kids have to wear masks

Landfill owners sue Roxbury, DEP, lawmaker