What’s buried in Roxbury’s Fenimore landfill? The state won’t say

By Louis C. Hochman/NJ.com
on July 03, 2014 at 2:25 PM, updated July 03, 2014 at 2:47 PM

ROXBURY — When the state Department of Environmental Protection installs an impermeable liner on the troubled Fenimore landfill site this summer, it’ll be burying nearly 380,000 cubic yards of debris a developer brought into the site below.

But it’s not clear what’s actually in that material or if it could present unexplored hazards to neighbors in Roxbury. The DEP won’t say, and it’s resisted all attempts to test the material so far.

On New Jersey 101.5’s Ask the Governor program last year, Gov. Chris Christie said the state believes Fenimore operator Richard Bernardi “broke the law in terms of the things that were brought in there” during a state-approved project to cap the long-abandoned landfill with construction debris and soil before installing a solar power facility.

And DEP spokesman Larry Ragonese was quoted by the Engineering News Record last month saying Bernardi brought in “a lot of materials he shouldn’t have” — though Ragonese has since told NJ.com some partial quotes in that piece were taken out of context, but didn’t say which.

The governor and DEP alike blame Bernardi and his company, Strategic Environmental Partners, for allowing the landfill to begin emitting rotten egg-like odors that spread for miles, starting in November 2012 and continuing until the DEP took over the site and installed a gas collection system last year.

But Ragonese has repeatedly declined to elaborate on specifics regarding SEP’s alleged mishandling of Fenimore — saying he can’t talk about it because the takeover remains in litigation. Bernardi’s SEP has made several arguments in court, without much success so far: that the takeover was illegal, that he shouldn’t be on the hook for the DEP’s cleanup costs, and that he should get to test what’s in Fenimore before he’s stuck with the bill.

Last week, Ragonese declined to answer NJ.com’s questions about what Bernardi brought into the site, about how the DEP knows inappropriate material is there, and about what oversight procedures should have kept inappropriate material from getting in.

Bernardi, on the other hand, isn’t nearly as shy about his own theory: He says while he was operating the landfill, it likely accepted all sorts of inappropriate material mixed in with the construction debris he was authorized to take — medicine, electronics and other hazardous household wastes he says could cause significant environmental problems for Fenimore’s neighbors.

But Bernardi doesn’t accept the blame for bringing in hazardous materials — he says if they’re there, that’s the state’s fault. Bernardi says his landfill is full of debris from homes and buildings knocked down by or haphazardly after superstorm Sandy — and that the debris came from DEP-approved recycling centers with no requirement he test it for anything but sulfur content. And he says his site likely isn’t the only one with such problems.

“It’s got to be tested,” Bernardi told NJ.com during a recent interview. “It’s mind-boggling that the regulator agency in charge doesn’t want it tested. When does the DEP not want something tested? What’s the reason? It’s going to slow them down? That’s not a real reason. It could be done in a day. … They don’t want to be on the hook for what we’d find there.”

Material from Sandy?

The DEP has never publicly said it thinks material in Fenimore largely came from Sandy demolition, which began immediately after the October 2012 storm. But many other stakeholders in the Fenimore process have.

Bernardi, in a certification to a federal court last week, said starting in 2011 he brought in 375,336 cubic yards of fill material — including 202,697 from DEP-approved recyclers. Of that, 81,000 came to the site after Sandy hit New Jersey, he wrote.

“For months after Sandy, everything that came in was from the storm,” Bernardi told NJ.com. “Everybody was running around the clock to take this stuff. It all had to go somewhere.”

A report by Robert L. Zelley of Maser Consulting, prepared for Roxbury, also notes residents began complaining of the rotten egg-like smells — which some say have caused respiratory issues, headaches and other health problems — after Sandy. Those smells have been blamed on hydrogen sulfide released by deteriorating construction debris — which Bernardi maintains broke down faster and released more gas because it was drenched from the storm.

Senator Anthony R. Bucco — who represents the district Roxbury is in, and whose son is both an assemblyman in the area and Roxbury’s township attorney — supported the Sandy theory in a letter to Christie last year.

On Oct. 2, Bucco wrote that he’d met with representatives of Rutgers University’s Environmental and Occupational Health Sciences Institute as well as Roxbury officials. In the letter, he backed a plan the DEP says would be catastrophic — removing the material SEP brought into the site. Even a proper cap might not stop hydrogen sulfide from developing, Bucco said, citing the Rutgers experts.

But any plan would be costly, so he suggested he state pursue Sandy Relief Aid federal funds for Fenimore — a request Roxbury officials made in a resolution last year as well.

“The owner of the Fenimore Landfill trucked in debris post-Sandy from the shore area, and the H2S smell started in November, 2012,” Bucco wrote. “The owner asked the township if he could operate the landfill for longer hours post-Sandy to help relieve shore residents by hauling away their debris. This clearly illustrates that Sandy debris was being dumped in the landfill. Activity had been taking place for months prior to Sandy with no smell.”

But as NJ.com first reported in April of this year, the DEP had already explored that idea. It had approached the federal Environmental Protection Agency in late 2012 about getting Superfund money for help monitoring or cleaning Fenimore.

The EPA said Superfund funding wasn’t a good fit — and instead offered to support the DEP if it pursued funding for superstorm Sandy relief through the Federal Emergency Management Agency, according to the emails. The DEP turned down the offer of help once a Sandy connection was suggested, emails between the agencies show.

“What is up with NJ?” Meghan La Reau of the EPA’s Region 2 Resource Conservation and Recovery Act Compliance Branch wrote on Jan. 9 of last year. “I would love to know why they made this decision.”

Cell phones and pill bottles?

In a series of recent email exchanges with the DEP’s manager of constituent services, Kerry Kirk Pflug, a residents’ group known as the Roxbury Environmental Action Coalition raises several concerns about what may be dumped at Fenimore. Both REACT and Pflug CC’d NJ.com on emails in their ongoing conversation.

Pflug told one REACT member on June 16 the material SEP brought in “is not municipal solid waste, and therefore does not generate significant quantities of methane or heat from aerobic biological reactions.”

But REACT members responded with pictures from Fenimore they say proves otherwise.

“You stated that the images appear to be of municipal solid waste from the original landfill that was closed in 1979. However, the photos were taken in 2013, after the new material that was brought in,” REACT member Bill Morrocco wrote last Thursday. “As (fellow REACT member C.R.) Mederos stated, the images show debris containing cell phones which didn’t exist in 1979 as well as pill bottles with safety caps that were not on the market until 1999.”

NJ.com, however, was unable to locate any mobile phones in the images of debris provided by the REACT members. In addition, palm-and-turn childproof containers were developed in the 1960s, according to thinkofthat.net and other online accounts of the pill bottle’s history — though patents were filed in the time after Fenimore originally closed, in the 1970s, the1980s and later, for improved versions.

Friday, REACT sent NJ.com more pictures it says depict waste at Fenimore — including one of a Metrocard, which was not launched until 1993, and of a “Pokemon 2000” trading card wrapper.

Morrocco also sent Pflug an aerial image of the landfill he said was taken after SEP cleared trees from the site, but before it began dumping new material there — and none of the landfill’s original material is visible, he said.

“Your department claims that no Hurricane Sandy material was brought into the landfill but by your comments below, it appears that you don’t really know what was brought in. If you do, your department is being untruthful and withholding information from the public,” Morrocco wrote in an earlier email making the similar arguments. “Please show me where medical waste was approved under the material acceptance plan for this project? Please show me where municipal solid waste was approved under the material acceptance plan for this project?”

So what do to about Fenimore?

Whatever’s at the site, Bernardi argues it was the recycling centers’ obligation to test it, to act as a gatekeeper before it ever found its way to Fenimore. He was only required to test for sulfur content, he says, and that’s all he did.

He notes asbestos was found in the site — in violation of the DEP-approved plan — in a July, 2013 inspection. He said that should have never been sent by a recycling center.

And whatever’s at the site, it’ll be under the planned liner soon unless something forces a change of plans. The DEP anticipates putting the capping project out to bid this month, then beginning work this summer, Ragonese told NJ.com this week.

The agency has been steadfast that the solution REACT wants — to have the material trucked out — isn’t viable. It recently met with officials in dozens of nearby communities to show them a dispersal map claiming fumes from Fenimore would reach their towns, disrupting their lives, during any excavation.

“You will be evacuating not just Roxbury — you will be evacuating town after town after town in the area,” Christie said during a town hall meeting in Fairfield in April. “And it will render those areas significantly compromised. So I’m not doing it.”

But Ragonese, asked recently to provide the basis for that analysis, declined comment, again citing the ongoing litigation.

In Bucco’s October letter to Christie, he said representatives from the Environmental and Occupational Health Sciences Institute believe SEP’s material could be trucked out from Fenimore over a one- to two-year period, if the DEP kept its gas collection system running at all times. After that, the landfill should be capped with debris — essentially the broad strokes of the plan approved for Bernardi’s company — but under the monitoring of an independent consultant.

“They felt that this is the best way to fully remediate the situation in the long term,” Bucco wrote.

Zelley’s report to Roxbury said his company didn’t have enough information to recommend a remediation for Fenimore — and further said the DEP should allow soil samples to be tested. But the agency has denied requests from both Roxbury and from Bernardi to do so, and successfully fought of challenges to force it in court.

In a recent certification to the Morris County Superior Court, Zelley said many of SEP’s reports to the DEP lacked information on sulfur content in the landfill, and didn’t rule out the possibility of sulfur hotspots. That, and the fact that SEP could have dumped hazardous materials at Fenimore, warrant a subsurface investigation, Zelley wrote. The findings could show the site needs a leachate collection treatment system to protect groundwater, he wrote.

The DEP’s plan, Zelley wrote, relies on incomplete data from SEP’s engineer, Birdsall Engineering — which also did evaluations of the site for the DEP and which has since gone out of business. He said with Birdsall both working for the DEP and SEP, there was no truly independent evaluation of the site.

For REACT’s part, it’s skeptical the DEP’s closure plan will protect Roxbury residents. It says with no liner underneath the material on the site, there’s no way to protect groundwater — though a DEP representative in March said with the liner above the debris, no water could get in to cause leachate.

And it says cost estimates by the DEP putting the cost to truck out material at nearly $40 million, but the cost to cap it at $8 million don’t account for long-term maintenance to which future state administrations would need to commit.

“There are two options. Cap the site or excavate it,” Ragonese said in an email to NJ.com last week. “Excavating the site would result in a public health and safety problems, for Roxbury and many neighboring communities. We could not allow that to occur. That would not be acceptable. We have the odors and emissions under control now through efforts that are ongoing. We intend to cap the site this year to permanently resolve the issue.”

REACT’s members have repeatedly protested the plan, with placards and chants to “truck it out.”

“If you saw what would happen if we trucked that stuff out over 18-24 months, you would be singing a significantly different tune,” Christie said at the April meeting. “I have the information I have. You have the belief you have. I’m the one who has to make these decisions.”

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