Roxbury to beg court: Don’t return Fenimore landfill to owner

As the owners of the Fenimore landfill continue their legal fight to regain control of the site — which for several months, spread noxious fumes for miles throughout Roxbury — the township wants in on the battle.

Roxbury has filed a motion to intervene in owner SEP’s litigation over the site, in which it says the state Department of Environmental Protection should pack up its operation there, and return Fenimore to the condition it was in before the DEP took over in 2013. It’s relying on a court ruling saying the DEP overstretched its authority during the takeover.

Returning the site might be a logistic near-impossibility — the DEP has materially finished a project to cap 19 acres where SEP began preparatory work on its own cap, with the intention of eventually building a solar facility atop the long-abandoned landfill. The DEP has also installed a gas collection and burnoff system it credits for virtually eliminating the rotten-egg-like odors that residents began complaining about in late 2012.

That’s capping was over the objections of a residents’ group and some officials who wanted to see the material causing the odors removed entirely.

Township Attorney Anthony Bucco — also an assemblyman for the 25th legislative district, of which Roxbury is a part — said while Roxbury has been part of other litigation involving Fenimore, it has a particular interest in whether the site remains in the state’s hands or SEP’s.

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“To give it back to SEP, who violated the agreement for that site, to give it back to someone who hasn’t played by the rules, would potentially expose our residents to foul odors and hazards all over again,” Bucco said.
The DEP took over the site saying SEP hadn’t complied with various terms of its state-approved plan for rehabilitating the former landfill, and blamed it for the hydrogen sulfide dioxide emissions that caused severe rotten egg-like smells. Among the alleged violations was SEP’s failure to put money it collected in “tipping fees” — payments for accepting new debris at the site while it graded the ground — into a required escrow account, meant as a fund for addressing issues at the site.

SEP, in turn, says it had odors virtually under control just before the takeover, and that it had been pressured into an unreasonable escrow agreement that would have it turn over 100 percent of its tipping fees. SEP says DEP-approved recycling centers sent it material drenched from superstorm Sandy that was more prone to causing smells.

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SEP attorney Matthew Fredericks said the town’s motion to intervene is all show — and unnecessary, because various Fenimore-related legal cases have been consolidated into one, and Roxbury’s already a party to them.
“Roxbury’s argument that the township is concerned about public health and protecting the environment is contradicted by the township’s long history of creating and then ignoring this landfill,” he said.

He noted the township, long before SEP took ownership of the site, allowed a large development to be built next to a landfill that was never properly closed.

“So it is disingenuous for the Township to now claim to be the guardian of the Roxbury environment. The township’s motion is just the latest attempt to make SEP the scapegoat for the township’s decades of neglect,” Fredericks said.

SEP owner Richard Bernardi has often alleged Roxbury and other officials targeted his company only for political reasons — to placate residents demanding something be done about the smells. He’s pointed in the past to a 2013 email from Bucco to the DEP saying “The gov., the legislators and local officials are going to take a bath in this next election if we don’t get this place shut down soon. I really don’t think you guys understand how bad this is getting. We have done all we can. There must be some other options you can explore.”

Bucco said this week there’s no political motivation in the town’s latest filing.

“This has nothing to do with politics. Every time they get into a difficult position, they raise that issue,” Bucco said. “They violated the agreement to cap this landfill, and created a horrific position for our residents. And they were in and out of court refusing to do anything to correct the problems. This has nothing to do with politics, this has to do with protecting the health and safety and welfare of Roxbury residents.”

Louis C. Hochman may be reached at lhochman@njadvancemedia.com.

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