Fenimore Fools Have Become Frauds
Local Site Plan Approval Required for Landfill Closure Plans at Legacy Landfills
DEP Surface and Groundwater Standards Must Be Met
DEP’s Closure Plan Must Be Consistent with the Highlands Master Plan
Strict Highlands Act Water Quality Standards Apply
A New 30 ppb Hydrogen Sulfide Air Quality Standard is Enforceable by Injunction
An Injunction Can Be Sought To Block All Work At the Site
New Law Expands Persons, Basis & Powers to Seek Injunctive Relief
Lots of stuff breaking in the Fenimore landfill battle recently, but I want to make a few points based on today’s news story.
You can read the bullets above and get the gist of this post.
I continue to be amazed by the lack of competent legal representation for the residents on Roxbury.
I’ll stick to just one glaring example raised in today’s news.
Here is section 3 of a law that was passed and signed by Gov. Christie on June 26, 2013. The law was passed in response to the Fenimore landfill fiasco.
Note that the law expressly states that landfill closure “shall apply for and obtain site plan approval”:
C.13:1E-125.3 Site plan approval required.
3. Notwithstanding the provisions of any other law to the contrary, any person who undertakes the closure of a legacy landfill, or the owner or operator of a closed sanitary landfill facility, who accepts for any reason, solid waste, recyclable material, contaminated soil, cover material, wastewater treatment residual material, dredge material, construction debris, or any other waste or material shall apply for and obtain site plan approval pursuant to the provisions of the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.).
So why is Roxbury Township Attorney and State Assemblyman Anthony Bucco saying exactly the opposite?
Bucco said that even if the Superior Court judge had sided with the township, it would not have ceased operations at the site.
“We have no authority to stop the DEP from remediating as they see fit. They need site plan approvals from the township eventually, but that is just for things like landscaping,” he said.
“There is nothing in the state law that says the township has the right to stop them. They still have primary jurisdiction. The state has pre-empted any town from having jurisdiction over landfill closures,” he said.
“However, the DEP must go before the Morris Soil Conservation District because the state will not allow streams and water to be polluted by runoff,” he said.
Hard to know where to begin to correct the errors, omissions, and misleading statements here.
First, state law no longer preempts landfill closure for legacy landfills. Fenimore is a legacy landfill. Read the law above.
Second, State law says site plan review is required – it does not limit that review to to “things like landscaping”, so Bucco is just making shit up.
Towns have broad powers under the MLUL on issues that are not preempted by State jurisdiction. Landfill closure is no longer preempted by DEP. That means towns have the fill scope of MLUL powers, which are far broader than “things like landscaping”.
Third, the Morris County Soil Conservation District does NOT regulate surface water quality – or water pollution – or landfill closure.
That is DEP’s job and the Highlands Council’s job.
Under the state Water Pollution Control Act and federal Clean Water Act, DEP classifies all surface waters, including streams, in what as known as an “anti degradation designation”. DEP assigns designated uses for the streams, sets numeric and narrative criteria known as “water quality standards” to protect those designated uses, and issues pollution discharge permits to assure that water quality standards are met. DEP conducts monitoring and enforcement to assure that water quality standards are met. DEP mandates cleanup plans for waters that don’t meet standards
The Highlands Act built on clean water laws and created specific anti-degradation policy and designations, stricter water quality standards, larger 300 foot buffers, and stricter regulatory review procedures for activities that might degrade water quality – it’s too much to discuss in detail here.
DEP and the Highlands Council have parallel responsibilities for groundwater protection.
Last, DEP has a very detailed set of regulations regarding landfill closure requirements. [Update note: See this post for a discussion of DEP landfill closure requirements, including links to regulations.]
How could licensed attorney – and State Assemblyman – Bucco not know all this?
Is he incompetent?
Or is he stupid?
Or is he covering for the Fenimore Fools and Gov. Chrisite’s DEP?
There are also provisions in the Highlands Act that say a property can have no more than 3% of it’s area be impermeable. The proposed Fenimore geomembrane cap is bigger than that limit. Also, the air scrubber will use more than 50,000 gallons of water per day which requires a special Highlands Act permit. Are these parts of the Highlands Act applicable to site remediation or just development / redevelopment? What actual powers does the DEP have under the emergency order and can they really ignore state laws? The Highlands Council needs to assert jurisdiction over Fenimore and stop the DEP in its tracks from doing permanent damage to Roxbury and the environment.
@amarkworth
The Highlands Council recently issued a letter that stated that the Council hd no jurisdiction under the Highlands Act to address the remediation or closure of Fenimore.
Ask a real lawyer if that letter constitutes “final agency action” and can be challenged – that type of challenge is one way to force the issue of jurisdiction.
Today, I asked the Pinelands Commission how they implemented the identical law in Section 81 of the Highlands Act, which requires the DEP remediation e “consistent with the Pinelands CMP”. The Pinelands Commission has a Memorandum of Agreement with DEP to implement how that consistency determination is made.
The Highlands Council simply ignores the issue. That must change.
DEP can not waive all environmental laws under an “emergency order”. They must go through a buch of permit procedures, including air permits for the incinerator. That’s another legal challenge waiting to be filed when you get a real lawyer.
There are more – get a real lawyer, ASAP.
But the
At his town hall Wednesday I told Governor Christie that NJDEP had been fearmongering to officials in Wharton, Mine Hill, Jefferson and Mount Olive using the specter of toxic emissions from Fenimore landfill to scare them into backing NJDEP’s closure plan, while fighting Roxbury’s efforts to obtain samples from the landfill, and asked what he was hiding in Fenimore landfill that he didn’t want trucked out.
He responded by fearmongering too, claiming that removal would ruin 30 communities in 3 different counties. He knows landfill gas emission control procedures would prevent that. He claimed that the problems are due to things that were put in Fenimore “for decades” and folks in Roxbury chose decades ago what was permitted to be dumped in Fenimore. He knows the toxic emissions result from construction & demolition debris dumped in the last FOUR years, permitted by NJDEP and violating the Highlands Act.
He claimed trucking it out would result in the evacuation of “not just Roxbury, you’ll be evacuating town after town after town in the area and it will render those areas significantly compromised.”
Christie is either misinformed, a liar or both. He refused to reconsider his bad decision.
Kenny Collins taking on Governor Christie at Fairfield Town Hall Meeting
http://www.youtube.com/watch?v=zevLSJHNJtI
@worldwiderebel
I was going to write about your video exchange with Christie.
The Gov.’s comments about the 30 towns reminded me of Bill Baroni’s shameful lies to the Legislature, about GWB;lane closures. In that testimony, Baroni had data from every legislative district and tried to use it exactly the way Gov.Christie just did – e.g. 200 of your constituents will be stuck in traffic a GWB because Ft. Lee 3 dedicated lanes.
The GOv. flat out lied when he claimed that Roxbury permitted the landfill decades ago.
Since 1975 passage of the Solid Waste Management Act, DEP has preempted all solid waste facility and landfill permitting.
In addition to that lie, the Gov. mislead the public by implying that the problem was caused by waste disposal decades ago – in fact, the problem stems from 400,000 yards of construction debris DEP recently approved.
Truck it out!