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The state Department of Environmental Protection overstepped its authority and had no judicial approval when it declared a health emergency and seized control of the 104-acre Fenimore Landfill in Roxbury in June 2013, a state appeals court ruled Thursday.

In what is at least an interim victory for landfill owner Strategic Environmental Partners LLC, the appeals court vacated an emergency order issued by DEP Commissioner Bob Martin that allowed for the immediate takeover. The court sent the issue of the seizure to Superior Court for further proceedings.

The appeals court found that the DEP exceeded its authority by seizing control of SEP's property without first obtaining judicial approval. In activating an emergency order, the department also erred by using past records of hydrogen sulfide emissions at the site when standards for unacceptable emissions from aged landfills, like Fenimore, were not enacted until June 26, 2013—the day of the takeover, the ruling said.

"The DEP has mishandled this at every step," said Jeff Tittel, director of the New Jersey Sierra Club. "It's become like a Stephen King horror novel."

The appellate court ordered that a full Superior Court hearing include the opportunity for the DEP to present experts and other proof to the court to support the DEP's finding that the hydrogen sulfide emissions presented "an imminent threat to the environment on June 26, 2013," the decision said.

SEP, whose attorney, Matthew Fredericks, could not be reached for comment, will have the opportunity to present contrary evidence and attempt to meet its burden under the statute to stay the DEP's intervention, the appeals ruling said. The court will then make findings of fact that would enable further appellate review if either party wanted it.

However, the appeals court did reject SEP's contention that the statute of June 2013 on which the DEP relied for the takeover was unconstitutional special legislation.

"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," the appellate ruling said.

The DEP on June 26, 2013, seized control of Fenimore , the same day that Gov. Chris Christie signed a bill that established the maximum permissible emission of hydrogen sulfide at 30 parts per billion averaged over a 30-minute period at the property line of any so-called legacy landfill. Legacy landfills are those that ceased operations prior to January 1982.

DEP spokesman Larry Ragonese said that despite the ruling the DEP will continue efforts to mitigate noxious, rotten-egg odors that were the basis of hundreds of complaints by neighbors living near the landfill. The DEP will continue intensive efforts to cover and cap the site, Ragonese said.

"Today's ruling has no impact on the gas collection and capping work being done by the state at the Fenimore," the DEP said in a statement released late Thursday.

"The state's actions ... are expressly authorized by the Legacy Landfill Law itself, which the appeals court found to be constitutional. While we are disappointed with the appeals court's decision today regarding the commissioner's emergency order authority and are evaluating the state's legal options, that protective work will continue," the statement said.

As of Wednesday — one day before the ruling was issued — the DEP's plans for remediation of the site were still in place. The DEP has imported about 65,000 cubic yards of an anticipated total volume of about 75,000 cubic yards of clean fill for use in covering the site. Truck traffic is down to about 20 to 30 trucks a day, and, weather permitting, the DEP expects to bring the remaining 10,000 cubic yards of material, primarily topsoil, to the site by Thanksgiving, said Kerry Kirk Pflugh, DEP manager of constituent services.

A liner and geo-net should be completed by Nov. 21, weather permitting. A new oxidizer is scheduled to be replaced in January. In the spring, additional seeding will take place for the landfill's vegetative cover, Pflugh said.

Fenimore received trash and waste on 50 to 65 acres of the site for decades before the DEP ordered it closed in 1979. Though leachate and industrial drums were detected on the tract, it was never properly closed and capped.

SEP bought the tract and struck a deal with the DEP in 2010 to bring approved construction and demolition debris to 15 acres of the site for purposes of covering the tract and eventually building a solar power facility there.

The DEP in 2012 began alleging that SEP violated its consent agreement on operation of the site, and by November 2012, the township and DEP were inundated with calls from residents about the sulphur odors they said were overwhelming and ruining their health. Multiple Superior Court hearings were held on how to mitigate the odors. A court hearing was scheduled for June 28, 2013, at which the DEP was going to request a takeover but that plan was aborted by the DEP's emergency order for seizure on June 26, 2013.

The appellate ruling said that SEP sustained "a manifest injury" in June 2013 when it was denied an opportunity to present a case to a Superior Court judge for keeping the landfill open with itself as operator.

Tittel, the Sierra Club director, renewed a call for the DEP to truck the material out of Fenimore and deposit it in an appropriate, modern landfill.

"This site will be spewing noxious odors for the next 20 years unless the plan is changed. The cap will ultimately fail, and the nightmare will continue. Instead we believe the DEP should require the removal of all construction debris especially the wallboard and other materials that are giving off the hydrogen sulfide smell. The only real cleanup plan is to remove the material and ship it to an appropriate landfill," Tittel said.

Staff Writer Peggy Wright: 973-267-1142; pwright@njpressmedia.com