Roxbury Gets to Argue Against Landfill’s Return to Owner

Roxbury can intervene in a lawsuit that will determine whether the owner of the former Fenimore Landfill will regain control of the property, a judge ruled this week.

Superior Court Judge Rosemary Ramsay granted the township’s request to be part of the litigation, signing an order June 26, said Roxbury Township Attorney Anthony Bucco. The judge gave Bucco until July 31 to file a legal brief supporting the township’s position.

The property is now under the control of the state Department of Environmental Protection (DEP), which seized the land from its owner, Strategic Environmental Partners (SEP), in 2013. The seizure came after construction debris, dumped by SEP at the formerly dormant site, released clouds of noxious hydrogen sulfide that spread miles throughout Roxbury.

After taking control of the site, the DEP installed a cap on landfill and an odor mitigation system that is burning off the putrid gas generated when the waste, particularly wallboard particles, became wet.

SEP subsequently challenged the legality of the DEP seizure. It has so far been successful in this effort, convincing judges all the way up to the state Supreme Court that DEP Commissioner Bob Martin exceeded his authority when he had the DEP seize the property by issuing an “imminent threat” emergency decree.

The Supreme Court sent the case back to Superior Court for further consideration and it is here that Roxbury hopes to block a return of the land to SEP’s control.

“Obviously, SEP’s order to show cause was to get back the property,” said Bucco today. “SEP, in its lawsuit, is trying to get the court to require the state to turn the property back over to SEP, and obviously we are going to oppose that. Our brief will be all the reasons we think that shouldn’t occur and it’s a bad idea.”

Bucco said he will argue that SEP’s prior behavior should disqualify the company from having anything to do with the landfill. “I think they were a bad steward,” he said. “Their handling of the landfill before led to the conditions out there that were detrimental to the township. We don’t want to see that occur again.”

The state endorsed SEP’s plan to turn the former dump into a solar energy “farm,” a plan that involved leveling the site through the use of the recycled construction material. But Bucco contends the company failed to adhere to operational constraints. “They violated a number of their conditions in their agreement with the state to maintain the landfill,” he said.

The lawyer is confident SEP will not be allowed to regain control of the property. Ownership is another matter.

“SEP still owns the property, but the state has taken control over the landfill under that emergency order,” he said. “SEP still owns the underlying land. I think the DEP’s immediate goal is to close the landfill and address any of the ancillary issues that may come up as result of that closure like making sure the air is clean. We have also seen a little bit of an issue with groundwater recently and those two things are important.”

He said DEP’s “initial responsibility is to get those things under control.” What will happen in the future is unclear, he acknowledged.

“The long term plan as to how that property is maintained and owned will have to be discussed,” Bucco said. “We haven’t gotten any official determination from the DEP as to what the long range plans are … Normally, a public entity ends up taking responsibility because nobody one else will. It all depends. I don’t want to speculate as to what could occur there, but I’m pretty confident it won’t be a situation where SEP, in any way, shape or form, comes back and tries to resurrect what it did before.”

Bucco said he is pleased Roxbury will now have a say in the litigation. In seeking inclusion in the lawsuit, he argued the township and its residents – being the entities most directly impacted by the Fenimore mess – deserve a place at the litigation table.

“Obviously, we’re happy with the judge’s order,” said Bucco. “The mayor and council believe, as do I, that it’s important for the township’s voice to be heard in this case and we’re glad that the judge agrees and has given us a right to participate.”

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