Opinion
Civil Action Docket No. C-72-19
09-30-2019
TOWN OF KEARNY, Plaintiff, v. NEW JERSEY SPORTS AND EXPOSITION AUTHORITY AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION Defendants.
Gregory Castano, Jr, for the Town of Kearny (Castano Quigley, LLC, attorneys) James Stewart, for the Defendant, New Jersey Sports and Exposition Authority (Lowenstein Sandler, LLP, attorneys).
NOT TO BE PUBLISHED WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Gregory Castano, Jr, for the Town of Kearny (Castano Quigley, LLC, attorneys) James Stewart, for the Defendant, New Jersey Sports and Exposition Authority (Lowenstein Sandler, LLP, attorneys). HON. JEFFREY R. JABLONSKI, P.J. Ch.
OPINION
On May 24, 2019, this court granted the Plaintiff's application for an injunction to close the Keegan Landfill (the "Landfill") temporarily. This decision follows the plenary hearing after additional discovery, testimony, and argument as to whether those preliminary restraints should now be made final.
This court finds that the remedial efforts taken by the Defendant, the New Jersey Sports and Exposition Authority (NJSEA), are impermissibly temporary and only attempt to mitigate the hazardous condition that the Landfill creates, rather to eliminate it. The preliminary injunction, therefore, is made final.
I. PROCEDURAL HISTORY
On April 22, 2019, the Town of Kearny (the Plaintiff), filed a verified complaint seeking injunctive relief regarding the continued operations at the Landfill that is located in Kearny and is operated by the NJSEA. In the order to show cause that accompanied the pleading, the Plaintiff, among other relief, sought temporary restraints to compel the NJSEA to cease operations at the Landfill and to require the installation of an impermeable cap. This court heard argument on that application on May 24, 2019.
On that same day, this court ordered that the NJSEA be restrained from operating the Landfill until further court order. It also ordered the disclosure of "real time" copies of any and all correspondence between the New Jersey Department of Environmental Protection (NJDEP) and the NJSEA. It permitted the Plaintiff the right to review and to provide input by the NJDEP and the NJSEA regarding proposed workplans to address sources of odors from the Landfill, and allowed the Plaintiff access to the Landfill during inspections. Finally, the Plaintiff was permitted to obtain an independent environmental monitor to assist it with specified endeavors concerning the Landfill.
As part of that order, this court concluded that
[i]mmediate and irreparable harm will occur in the absence of the relief requested (that being the continuous and unabated discharge of hydrogen sulfide); that the claim is based on a settled legal right of the Plaintiff; that the material facts are uncontroverted; and that the Plaintiff (that seeks to protect the health of its citizens) will suffer greater harm if the condition is not mitigated nor abated, than the protection [of] the . . . financial interest of the Defendant in the site.
This court set a return date of July 25, 2019, for a "plenary hearing following certain permitted discovery for this court to consider whether the temporary closure should be made permanent."
The NJSEA sought interlocutory appellate relief and the Appellate Division granted it. On May 31, 2019, the Appellate Division affirmed this court's decision permitting the Plaintiff's access to the Landfill, the direct participation in NJSEA's interactions with the NJDEP, and access to NJSEA' records. It, however, reversed the decision to close the Landfill temporarily.
In pertinent part, the Appellate Division concluded that
to be sure, the emission of hydrogen sulfide gas at levels in excess of those permitted by law presents a health risk to those citizens of the Town who have been, or may be exposed to it. . . . Indeed the NJSEA does not dispute the health hazards associated with hydrogen sulfide gas emissions in excess of the limits imposed by
law or its obligation to comply with the applicable laws and regulations governing those emissions.
Nevertheless, the Appellate Division granted a stay of this court's order:
because the NJSEA has made a sufficient showing under the Crowe standard that the court's temporary remedy constitutes an illusory fix that is untethered to any evidence showing the ordered closure is either necessary to permit the NJSEA to comply with the NJDEP's directives and the NJSEA's obligations under applicable law or will have any impact on the landfill's hydrogen sulfide emissions.
The full Supreme Court unanimously reversed the Appellate Division on June 12, 2019, and, in doing so, affirmed this court's decision to close the Landfill temporarily.
In order to permit discovery and a complete consideration of the merits of the application, this court ordered that the matter proceed to the hearing scheduled for July 25, 2019. Testimony from both fact and expert witnesses was taken over 5 trial days. On September 16, 2019, the NJSEA and the Plaintiff supplemented the record with additional DAMR reports. The Plaintiff provided additional documents on September 23, 2019.
A "DAMR" is a daily air monitoring report. Admitted as evidence as part of this hearing, and comprehensively considered by the court in this decision, were the DAMR reports from the NSEA from May 8, 2019, through June 18, 2019, and from June 18, 2019, through July 23, 2019. DAMR reports were also considered from monitoring stations installed by the Plaintiff from February 14, 2019, through July 23, 2019. Post hearing, the NJSEA provided DAMR reports from July 26, 2019, through September 8, 2019. The Plaintiff provided similar reports from July 26, 2019, through September 16, 2019. Recently, the Plaintiff served reports from September 17 through September 22. Each DAMR report consists of approximately 10 pages detailing the discharge of hydrogen sulfide over a period of time. Each report consists of weather data, field operations, wind direction, and rainfall. Each report also provides the designated "action level" and any hydrogen sulfide discharges that exceed that level. A DAMR report is generated by each of the 8 monitoring wells installed by the NJSEA at the perimeter of the Landfill and by each of the 2 maintained by the Plaintiff and placed off site. This court has considered the approximately 3,980 DAMR report pages in making this decision.
After carefully reviewing the documentary evidence and witness testimony and after considering the credibility of each witness and the overall reasonableness of the positions of the parties consequently, this court makes the following findings, supported by clear and convincing evidence, which form the basis for its ruling.
II. FINDINGS
A.
The Landfill consists of approximately 110 acres and is located northeast of Bergen Avenue in Kearny. It is bordered on the northeast and east by a freshwater marsh and by industrial facilities to its north and south. The western boundary also includes industrial facilities, but quickly transitions to residential properties.
The Landfill is 3,000 feet from both Franklin Elementary School that serves 1,000 students from kindergarten through 6th grade, and from Harvey Field outdoor recreational complex that is used by more than 750 children from April 1 through November 1.
The NJSEA presently owns the Landfill and characterizes the history of the Landfill as "sordid." The Landfill is a single mound-type landfill that is constructed on top of a historical municipal solid waste dump site. Waste disposal operations at it began in the 1940's, although the majority of the disposal and landfilling activity occurred throughout the 1960's. During the time period before the NJSEA's involvement and when the Landfill was owned partly by the Plaintiff and partly by private companies, unregulated dumping took place at the site that "caused considerable and visible pollution to the Kearny Freshwater Marsh and its surrounding ecosystems." The Landfill closed in 1972 as a result of what the NJSEA characterized as "lack of environmental controls."
B.
In 1992, the NJSEA petitioned the NJDEP to amend its Solid Waste Plan to re-open the Landfill. To facilitate this process, the NJSEA purchased the Kearny Marsh and negotiated a lease agreement with the Plaintiff to allow for remediation and to permit the Landfill to reopen and to resume operations for solid waste disposal. During this period, the NJSEA implemented management plans and installed equipment to arrest the leachate flow. The NJSEA also purchased the leasehold from Kearny. In 2016, the NJSEA acquired the remaining interest of the Plaintiff over the Landfill through eminent domain proceedings. Now, the NJSEA owns the entire Landfill. The NJSEA contracted with Waste Management, Inc, to run it.
Leachate is "a liquid that has been in contact with solid waste and contains dissolved or suspended materials from that solid waste." N.J.S.A. 13:lE-38(d).
On December 18, 2008, the NJSEA obtained a Certificate of Authority (CAO) that resuscitated the Landfill's operations. The CAO was renewed annually until a Solid Waste Facility Permit was issued on March 15, 2012.
The CAO authorized the NJSEA to continue to operate the Landfill as a C&D, or construction and demolition landfill. As such, it was authorized to receive only specific categories of waste including, certain "bulky" waste (ID 13), construction and demolition waste (ID 13C); vegetative waste (ID 23), and industrial waste (ID 27). The CAO also authorized the filling of the Landfill to a final elevation of 100 feet above mean sea level. The Landfill is estimated to receive approximately 18,000 tons of waste per month. Based on that figure, the Landfill is expected to reach capacity by the end of July 2023.
A C&D landfill receives construction and demolition debris, which typically consists of roadwork material, excavated material, demolition waste, construction/renovation waste, and site clearance waste. C&D Landfills do not receive hazardous waste or industrial solid waste unless those landfills meet certain standards and are permitted to receive such wastes. C&D materials may include concrete, wood from buildings, asphault, gypsum, metals, bricks, glass, plastics, salvaged building components, tees, stumps, earth and rock. https://www.epa.gov/landfills/industrial-and-construction-and-demolition-cd-landfills.
Identifying designations for various solid waste are provided in N.J.A.C. 7:26-2.13. https://www.nj.gov/dep/dshw/lrm/type.htm
The current CAO was issued on September 20, 2018, and was effective on November 14, 2018. The CAO expires on November 14, 2019. The record is silent as to whether the NJSEA seeks to renew it.
C.
The Plaintiff started this lawsuit because of numerous odor complaints stemming from the discharge of landfill gasses (LFG). According to a report prepared by the NJSEA's engineers,
Landfill gas (LFG) is composed of a mixture of hundreds of different gases. By volume, landfill gas typically contained 45% to 60% methane and 40% to 60% carbon dioxide. Landfill gas also includes small amounts of nitrogen, oxygen, ammonia, sulfides, hydrogen, carbon monoxide, and nonmethane organic compounds (NMOCs) such as trichloroethylene, benzene, and vinyl chloride. Agency for Toxic Substances & Disease Registry (ATSDR) http://www.atsdr.cdc.gov/HAC/landfill/html/ch2.html. Three processes produce landfill gas: bacterial decomposition, volatilization, and chemical reactions. Ibid.
odors typically result when LFG in a Landfill is not fully collected and controlled, and escapes as fugitive LFG emissions. The principal components of LFG (methane and carbon dioxide) are odorless gasses. LFG odors are typically caused by various odiferous compounds resent in the LFG, such as reduced sulfur compounds. Hydrogen sulfide is particularly odiferous and usually is the
most prevalent sulfur compound in LFG. Hydrogen sulfide [H2S], which has a characteristic rotten egg odor, has a low odor threshold, which means that people can detect its odor at very low concentrations. The Agency for Toxic Substances and Disease Registry; (ASTDR) reports that odors derived from H2S are typically detected at concentrations as low as 0.5 ppb [parts per billion] to 3 ppb. Fugitive LFG emissions with H2S present in the case are likely to result in detectible odors.
The New Jersey Department of Health characterizes hydrogen sulfide (H2S) as a hazardous substance, and the NJDEP notes that it is a "colorless, poisonous flammable gas." These agencies agree: OSHA (Occupational Safety and Health Administration), ACGIH (American Conference of Governmental Industrial Hygienists, Inc.), DOT (Department of Transportation), NIOSH (National Institute for Occupational Safety and Health, DEP (Department of Environmental Protection), IRIS (Integrated Risk Information System database), NFPA (National Fire Protection Association), and the EPA (Environmental Protection Agency). H2S is, according to the Department of Health's "Hazardous Substance Fact Sheet", a "colorless gas with the odor of rotten eggs." It is flammable and is a dangerous fire hazard. H2S appears on the special health hazard substance list and adverse health effects may be triggered when exposed to it.
Exposure to H2S can "irritate the eyes on contact. Long-term exposure to low levels can cause pain and redness of the eyes with blurred vision." Inhalation irritates the lungs and "higher exposures may cause a build-up of fluid in the lungs (pulmonary edema), a medical emergency." "[E]xposure can cause nausea, dizziness, confusion, headache and trouble sleeping. Very high levels can cause unconsciousness and even death." As noted by the NJSEA, "the odor of H2S is extremely strong and foul, and it can induce tearing of the eyes and symptoms related to overstimulation of the sense of smell, including headache, nausea, or vomiting."
The NJDEP has described the health effects of H2S as follows:
Exposure to low concentrations of H2S down to around 12 ppd, may cause irritation to the eyes, nose or throat, and may cause difficulty in breathing for some asthmatics. At higher levels it can irritate the lungs. Repeated exposure may cause bronchitis to develop with coughing, phlegm, and/or shortness of breath. H2S has a small effect on muscle metabolism with short-term exposure in the range of 5,000-10,000 ppb in air. In addition, exposure to 2 parts per million (ppm)of H2S in air for 30 minutes resulted in 30% bronchial obstruction in 2 of 10 asthmatics, although this change was not statistically significant. In addition, 3 of 10 complained of headaches. In rats, a lowest observed adverse effect level was identified on the basis of exposure to 30 ppm for 6 hours per day, 7 days per week for 10 weeks. The exposure results in mild-moderate olfactory nerve loss. The U.S. Environmental Protection Agency's (EPA) adjustment of this concentration for continuous exposure and human equivalent exposure concentration resulted in a concentration of 1.4 ppm.
H2S in landfills results from a chemical reaction when landfill contents are exposed to the elements. Specifically, when materials containing sulfur, including specifically gypsum contained in construction drywall, are present in anaerobic conditions and become wet, bacteria decomposes the drywall and H2S is released.
D.
The Plaintiff began to receive community complaints about discharges of H2S from the Landfill beginning in 2018. In 2019, complaints increased. In response, on March 18, 2018, the NJSEA began a Surface Emissions Monitoring (SEM) program at the site. Although the single-day monitoring did not reveal impermissible H2S exceedance at that time, the NJSEA's engineers did, nevertheless, recommend that the SEM program be used to identify areas of emissions from all areas of the Landfill and also that comprehensive improvements be made to establish daily and intermediate cover procedures. It was noted that irregular coverage of the existing waste with topsoil potentially provided "pathways for gas to migrate from the Landfill." Finally, the engineers recommended the "installation of an active LFG collection and control system" since they believed that a "well-designed and operated LFG collection and control system is the best management practice for LFG-related odors."
Surface emissions monitoring is subject to certain requirements. Under 40 CFR 60.753, surface emissions testing and monitoring of LFG must take place along the perimeter of a site and in a serpentine pattern that traverses the landfill at 30 meter (100 foot) intervals and where visual observations indicate elevated concentrations of landfill gas. The owner or operator may establish an alternative traversing pattern that ensures equivalent coverage. Ibid. A surface monitoring design plan is also required that includes a topographical map with the monitoring route and the rationale for any site-specific deviations from the 30 meter intervals. Ibid.
Beginning on June 4, 2018, community residents began to complain to the Hudson Regional Health Commission (HRHC) about the odors that that emanated from the Landfill. 164 reports followed. Some entries only contained referrals, others, however, detailed specific complaints:
• One must "keep bedroom windows and back of house permanently closed" (June 7, 2018.)
• Another reports that the area "smells like horse manure." (August 20, 2018).
• The "smell was unbearable." (November 19, 2018).
• "Very off-putting, unpleasant odors" were noted. "The smell makes it very difficult to remain outside." (December 30, 2018.)
• Another resident reported that "cannot do outdoors or open my windows." To her, "the odor has persisted for two days affecting our quality of life." (December 30, 2018).
• she "cannot enjoy [the] outdoors" because of the odors. (December 31, 2018).
• "I don't [go] outside for walks anymore" (January 8, 2019.).
• "Unpleasant odor will make it hard to sell a house." (January 17, 2019).
• "Embarrassing to welcome people to visit my home when this smell is a recurring problem." (January 17, 2019).
• "No one will want to buy my property." (January 17, 2019.
• The odors were noted to smell as if a "Wet skunk [had] died." (March 8, 2019).
• "Intensified odor and observed pedestrians in Red Bull apparel covering their faces at the corner of Congress and Market Street." (May 8, 2019).Others reported adverse health effects from the exposure:
• The inspector himself noted that while investigating a citizen complaint, the inspector's "nose started burning, stated getting a mild headache, and felt a little dizzy." (December 2, 2018.)
• Another complainant reports the "start of a headache" (December 31, 2018).
• "Odor makes [me] physically ill, queasy, headache, migraine." (January 12, 2019).
• "Impact on sleeping." (January 15, 2019).
• "My 7 year old complain[ed] and closed his nose to escape the smell." (January 17, 2019).
• "Other times has caused headaches. Tonight breathing issues." (January 17, 2019).
• "Throat gets raw and wakes [me] up." (March 8, 2019).
Additionally, 200 reports were forwarded to the Town of Kearny hotline that was established to field complaints about the odors. Although some complaints are conclusory and only acknowledge the problem, others detail the impact on the citizen's quality of life and adverse health effects:
• "This stink came into my house all night and I have air purifiers in all my rooms." (#3028).
• "Smell is putrid today!" (#3037).
• "Smell is strong again right now. Strong enough to enter my house. Windows are closed." (#3044).
• "The odor seeps into my apartment and lingers. Its [sic] pretty gross to eat dinner with that odor despite all the scented candles I have put on." (#3046).
• "I was just woken up by this horrible smell. I. have pneumonia and a respiratory infection, was hospitalized for 3 days last week . . . still very sick and this horrendous odor from the dump is making me worse." (#3049).
• "In the past three week[s] I have been fighting a upper respiratory infection never had this problem before, I hope the city could follow and check the air quality for the safety and health of our residents." (#3062).
• "I happen to have gone home early yesterday due to the snow storm and notice[d] the awful sulfur smell as I was nearing my house. It seeped into my car and had me gagging, my throat was burning and my eyes were actually watering! It happened around the Devon St/Bergen Ave intercession [sic] and when I pulled my car into my driveway and got out, I could smell the horrible stench all around. Also please note that I live down the block from KHS and very close to Franklin School, so just wanted to also voice my concern about the health risk this is undoubtedly posing to our children." (#3066).
• "The stench permeates throughout my building and my apartment. The odor makes it hard to sleep because its so bad. Hence the reason why Im wiring you this email at 1:01 AM." (#3068).
• "Since September I started getting my autoimmune disease back. It was dormant for a few years." (#3069).
• "I called both numbers at about 11:39 am Sunday, February 24th to report the putrid smell that I experienced when I stepped out of Seabras supermarket." (#3070).
• "The smell is so strong that I actually felt nauseous." (#3082).
• "The odor is simply sickening." (#3089).
• "It is even stronger now. I was at the airport this whole time and did not have much of a headache. As soon as I get out of my car at home it is worse." (#3090).
• "Experienced rotten eff smell all day. . . . Odor all day until this evening. Morning was the worst." (#3095).
• "Odor . . . smells like human feces rotten eggs. Cannot open windows in house" (#3069).
• "Last night the odor was seriously bad. It is affecting my dogs. . . . When I brought her in last night, her eyes were watering. She never had this. If this is affecting animals whats going to happen when the kids go out in the summertime." (#3098).
• "Smell inside my apartment is so nauseating." (#3103).
• Citizen "called this morning about rotten egg odors coming through ac vents in homes. Taped up vents." (#3114).
• "Im [sic] becoming very concerned. The landfill is adjacent to Harvey Field-where my child practices soccer all spring and summer long. We need to know what these fumes are doing to our children and is. The lack of acknowledgement from officials is alarming." (#3115).
• "Horrible smell tonight as well- what is happening?" (#3128).
• "I go there almost on a daily basis, and the smell its like suffocating." (#3137).
• "Rotten egg smell outside & inside my home!" (#3144).
• "Hi, the odor on Hickory street is so terrible as of 20 minutes ago. My entire house smells like poop and rotten eggs. Its nauseating . . . " (#3156).
• "Odor of raw sewage early morning at my home on king st schuyler ave. The afternoon evening rotten egg smell. Cannot open the windows." (#3157).
• "The odor tonight is awful." (#3184).
• "I called the hotline to complain of the odor while with my son at Hickory park this afternoon, May 8, 2019 at about 4:30. I mentioned it to a few other parents at the park, who said yes, the odor had been so bad recently, especially with the windy conditions." (#3185).
• "We can't even use our balcony because the smell is nauseating and disgusting!!" (#3186).
• "Sat. June 1st [around] 11:30 pm all windows closed. Was awaken by odor of rotten egg smell. Symptoms nausea all night." (#3213).
• "The odor tonight is so awful, my entire home smells like rotten eggs, my throat and eyes are burning. My autoimmune issues are very sensitive to this along with my cardiac and respiratory issues." (#3230).
• "Another night of this awful odor. . . . Its terrible living here. Im ready to sell this house." (#3231).
• "The odors are terrible with my windows open tonight." (#3233).
Despite these complaints, the NJSEA took no affirmative action and only continued to monitor the situation and to measure the constant H2S emissions.
H2S emissions continued regularly, with occasional exceedances as set forth- under the New Jersey Administrative Code. Under those regulations:
No person shall cause, suffer, allow or permit hydrogen sulfide to be emitted from a sanitary landfill, legacy landfill, or closed sanitary landfill facility . . . in a concentration greater than 30 parts per billion by volume averaged over any 30 minute period at or beyond the property line of the sanitary landfill.N.J.A.C. 7:27-7.3
E.
On a number of occasions, the NJSEA was cited by the NJDEP for violation of a variety of environmental statutes and regulatory administrative code provisions.
On August 30, 2018, the NJSEA violated the Solid Waste Management Act under N.J.S.A. 13:1E-1 et seq. when it accepted waste that fell outside of the scope of that which was permitted to be dumped at the Landfill:
A truck dumping liquid sewerage sludge material was observed being dumped at the working face of the landfill. The inspectors interviewed the driver of the truck and the driver explained that the load is from North Bergen MUA. Keegan Landfill has been classifying this material as ID-27 according to Tom Marturano NJSEA. The Bureau of Solid Waste Permitting and the Bureau of Pretreatment and Residuals were consulted on this matter and it was determined that the liquid sewage sludge material from North Bergen MUA is not ID-27 and Keegan Landfill must immediately stop accepting this material from any treatment plant.
This dumping was observed and videotaped by NJDEP inspectors, and the inspectors made inquiries about the source and content of this waste. John Murray, an Environmental Specialist with the NJDEP, appears to have taken the - lead on the investigation and wrote, with emphasis, "please provide me with copies of NBMUA's manifests representing quantity and frequency of containers sent to Keegan since the start of plant upgrades." He continued, "I'm trying to better understand when this first occurred? and how the waste was originally identified, waste type? How this "mistake" was overlooked by the NBMUA, All American and Keegan Landfill" (emphasis included). The word "mistake" was curiously placed in quotation marks suggesting to this court that Mr. Murray was skeptical of the NJSEA's representation and explanation.
The substance was ultimately determined not to be leachate but a byproduct of some excessive settling of snails and sludge in the chlorine contact tanks during the upgrade construction project in North Bergen. This was confirmed by the testimony provided by Thomas Marturano of the NJSEA at trial.
Five months later, in January 2019, the NJSEA violated N.J.S.A. 26:2C-9.1 and N.J.A.C. 7:27-1.31(a) and (b). The NJSEA "obstructed or hindered the Department from the performance of its duties under the Air Pollution Control Act by refusing to allow a Hudson Regional Health Commission Inspector to enter the premises for the purpose of conducting an investigation on December 31, 2018." The NJSEA was filed $8,000.00.
N.J.S.A. 26:2C-9.1 prohibits interference with the investigators from the Department of Environmental Protection:
No person shall obstruct, hinder, delay, or interfere with by force or otherwise, the performance by the department or its personnel of any duty under the provisions of this act, or of the act of which this act is amendatory and supplementary, or refuse to permit such personnel to perform their duties by refusing them, upon proper identification or presentation of a written order of the department entrance to any premises at reasonable hours.N.J.A.C. 7:27-1.31(a)(b) permits
The Department and its representatives [] the right to enter and inspect at any time, any facility or building, or portion thereof, including all documents and equipment on the premises, in order to ascertain compliance with this chapter or with any preconstruction permit, certificate, operating permit, order, authorization or other legal document issues pursuant thereto, or to verify any information submitted to the department. This right is absolute and shall not be conditioned upon any action by the Department, except the presentation of appropriate credentials as requested, and compliance with appropriate safety standards.
Two weeks passed. On January 28, 2019, the NJSEA violated N.J.A.C. 7:27-8.3 (a) and (b) when it installed a leachate venting system without first obtaining a preconstruction permit and illegally operated it without a valid operating certificate.
Another two weeks passed. On February 27, 2019, the NJSEA violated N.J.A.C. 7:26-2A8(b)(11) because it failed to maintain the Landfill's grade and thickness of intermediate cover on all side slopes. This exposed leachate and created odors.
Three weeks later, on March 12, 2019, the NJSEA violated N.J.A.C. 7:27-7.3 because it permitted 9 improper exceedances of H2S.
Eight days later, NJSEA violated N.J.A.C. 7:27-7.3 again for 7 improper H2S exceedances.
The numerous violations appear to result from a lack of proper management at the Landfill. In a November 13, 2018, report, an inspector noted that "Keegan supervisors who told me that they don't keep track of how much wall board in particular is brought in but they do bring in some ID13 waste." On December 2, 2018, another inspector noted that it was possible that "the landfill burped and released some gasses."
F.
As a result of the emissions discharges on March 1, 2019, and the consequent determination that NJSEA violated the Air Pollution Control Act, the NJDEP and the NJSEA negotiated an administrative consent order (ACO) on March 31, 2019. Under it, the NJSEA was ordered to:
1. Submit a monitoring plan no later than April 1, 2019.
2. Install and operate a continuous H2S ambient air monitoring system.
3. Require the immediate notification if there are exceedances and that the NJSEA would be required to take all reasonable measures to control or eliminate any such emissions. (emphasis added).
4. "[R]easonable measures shall include, but need not be limited to providing additional cover, and excavation and removal of malodorous waste." (emphasis added).
5. Perform and submit an analysis to estimate the generation of emission rates for H2S and any other air contaminants from the landfill for calendar years 2019 through 2024 by May 30, 2019.
6. Immediately implement measures in order to return to compliance with the pertinent administrative code provides including but not limited to the following:
a. Minimize or eliminate the acceptance of C&D waste which contains gypsum wallboard, especially gypsum fines.
b. Evaluate the use of additional or alternative cover material and/or cover products;
c. Properly compact daily cover material;
d. Minimize the surface area of the working face of the landfill.
7. If compliance is not achieved to the Department's satisfaction by September 1, 2019, the Defendant shall, within 30 days of the Department notification, submit a proposal for the design, installation, operation, and maintenance of a gas collection system to prevent and control the migration of landfill gasses-off site in accordance with the pertinent administrative regulations, and apply for required air pollution permits.
In May 2019, the NJSEA submitted a Permit Application narrative for the installation and operation of a landfill gas collection and control system (GCCS). Under it, the CGCS was "designed to minimize offsite malodorous gaseous emissions in accordance with N.J.A.C. 7:26-2A.7(f)." (emphasis added.) The system development is based on a presumption from monitoring data that "H2S emissions appear to be predominantly from the western side of the landfill. Therefore, the initial LFG collection system installation concentrates LFG collection on the western side of the Landfill."
The GCCS is comprised of 26 vertical LFG extraction wells placed along the outer edge of the top plateau of the Landfill. Two additional vertical LFG extraction wells would be placed on the southwest side of the top plateau. This apparatus is paired with 6 horizontal collectors installed on the western side of the top plateau at 200-foot intervals. The perforated portion of the horizontal collectors terminate 75 feet from the outside edge of the Landfill where solid pipe connects the perforated pipe to the well head.
When operational, the system is designed to minimize air intrusion when a vacuum is created. As a. result, a "lift", or quantity, of waste is necessary to be applied in order to allow the creation of the vacuum. A LFG lateral and header piping system would also be necessary to connect all LFG collectors to a skid mounted blower/flare system that is planned to be located on the south side of the Landfill.
Under the terms of the narrative, data collection continues "after the system operation is stabilized." Specific reference is made in the equipment's narrative about the need to monitor the operation of the system and to consider weather conditions, and, specifically, barometric pressure.
The planned system, however, is only temporary.
According to the
brief description of the proposed project and intended use "due to uncertainty regarding LFG quantity and quality that may be recovered from a construction and demolition (C&D) landfill, the proposed utility flare will be operated on a temporary basis to collect LPG flow and composition data. The date collected from the temporary flare operation will be utilized to size and design a future, permanent LFG control system.
On June 28, 2019, the NJDEP issued a preconstruction Permit and Certificate to Operate. In that document, the NJDEP concluded that
on the basis of the information provided, the Department concludes that the application satisfies all applicable requirements of the New Jersey Air Pollution Control regulations codified at N.J.A.C. 7:27 et. seq. This permit allows for the inspection and evaluation of the equipment by the Department to assure conformance with all provisions of N.J.A.C. 7:27 et. seq. and any other applicable federal requirements codified at 40 CFR 52, 60, 61, and 63.
The permit reflects an approval date of June 28, 2019, and an expiration date of September 26, 2019.
No mention was made in the narrative report nor in any submission to the NJDEP about the plans to remove the offensive materials, despite the agreement that the NJSEA take "reasonable measures [that] shall include, but need not be limited to providing additional cover, and excavation and removal of malodorous waste." (emphasis added).
G.
At the plenary hearing, the Plaintiff called Kenneth Pincus, who, in addition to reporting the substantial number of complaints received by the Plaintiff, testified as to the consequent investigations by both the NJDEP and the HRHC. He provided details about the consistent readings by the air monitoring systems and endeavors that often exceeded the danger threshold but not meet the temporal requirement to trigger formal action by the NJDEP. Some of the exceedances were exceptionally high and substantially exceeded the pertinent standard. He also testified that, most recently before the hearing, the Plaintiff was forced to close Harvey Field twice at the end of July 2019.
Dr. Deborah Barsotti was qualified by the Plaintiff as an expert in toxicology and in pathology. She defined pathology as the science of the causes and effects of certain disease. Toxicology, she noted, is an understanding of the toxicity of certain chemical compounds. Her testimony centered on the combination of toxic compounds and exposure and the attendant risk, if any, on the community from exposure to those compounds. She noted that H2S is a non-carcinogen but still remains hazardous. It is, as she testified, a "poison."
Dr. Barsotti testified that exposure to H2S caused a number of "physiological responses" including gastrointestinal issues and headaches. She reviewed the air monitor reports and concluded that members of the Plaintiff's community had been exposed to this gas. Based on the consideration of the toxicological characteristics of H2S, and the documented exposure to the chemical's gas as noted in the air monitoring reports, she concluded that the Plaintiff's residents would be at risk from these emissions.
Robert K. Zelley was the Plaintiff's hydrogeologist. After testifying that H2S was created by sheetrock byproducts and the disposition of it in the landfill, he also noted that increased temperatures contributed to the increase of H2S. This, he believed, caused physiological and health issues. He also testified that the only way to eliminate the fugitive emissions from the landfill is to stop the influx of water. This, he noted, can only be achieved through the installation of a permanent cap combined with a gas collection system. He noted that the test of any efficiency of the proposed system will have to account for seasons and for a truly effective test through the four of them. Mr. Zelley noted that a minimum 12 month period would be necessary to test the overall effectiveness of the system.
Ultimately, Mr. Zelley concluded that the only appropriate method to eliminate the exceedances effectively and completely is to terminate landfill operations, install a landfill gas collection system, and cover the Landfill with an impermeable cap. As he testified, only the reduction of water to. the site will result in fewer chemical reactions. This would arrest and ultimately eliminate the chemical processes that cause the offending emissions.
In opposition, the NJSEA qualified Edward J. Eichen as an expert in industrial hygiene and human exposure assessments. He testified about the types of human receptors and routes of entry of hazardous substances. He noted, as did the Plaintiff's expert, that dose is key consideration and characterized it as "a critical element" to a determination of possible hazardous risks. The amount of time of exposure as it applies to the portal of entry was an important analytical point, too.
The NJSEA also called Michael Trupin of Trinity consultants who was qualified as an air quality expert. He testified about the proposed remedial efforts and their possible effectiveness. Mr. Trupin was aware and acknowledged that H2S emission is accelerated if there is an increase in temperature, moisture, and sulfur. He also noted, most curiously and as opposed to the toxicologists, that H2S is not considered a hazardous air pollutant. The majority of his testimony sought to describe the purported state of the art practice as to landfill operations and odor controls. He believed that the gas collection system, as proposed by the NJSEA, is the proper remedial method.
Lisa Wilkerson of SCS engineers testified for the NJSEA about the specific gas collection system that was engineered for the Landfill. Ms. Wilkerson testified consistently with that which was submitted to the NJDDEP as the pilot program for the original temporary system that would later be replaced with a more permanent one. She noted specifically that the autumn is the worst season to test the equipment's effectiveness because of the wind and the temperature variations that might increase the exceedances.
Ms. Wilkerson testified about the ability of the system to operate while landfill operations continued. Although she did believe that a gas collection system was necessary to address the condition, she did not believe that closure of the Landfill was necessary to do so. She noted that ongoing operations were feasible while the system was being deployed and tested. She also noted that additional fill material would be necessary to engage the proper operability of the gas collection system. Specifically, that re-grading of the landfill using existing materials present at the site would not be considered "optimal."
In rebuttal/the Plaintiff called Dr. Vatsal Shah, whom it qualified as a civil engineer and specifically with landfills in New Jersey. His testimony countered the conclusions made by Ms. Wilkerson that re-grading of the landfill would not be an "optimal" solution. In direct contradiction to Ms. Wilkerson's testimony, Dr. Shah noted that re-grading is certainly possible as part of a long-term plan and would actually benefit landfill stability.
H.
From the inception of the monitoring efforts, through the plenary hearing, and continuing to the present, the Landfill continues to emit H2S. The NJSEA acknowledged this fact, and, at trial, presented evidence that despite the continual emissions, the monitoring wells revealed that approximately 99% of the monitoring time, the NJSEA complied. with the regulations that prohibited the discharge of H2S in an excess of 30 ppb for 30 continuous minutes. The NJSEA likewise provided evidence that for a substantial period of time, exceedances were low and did not violate the regulatory standard.
In opposition, the Plaintiff provided similarly substantial evidence that the exceedances were regular and consistent, but failed to exceed either the temporal or discharge baselines to trigger administrative action. Detailed review of the DAMR reports demonstrates substantial and frequent exceedances during the period from February 2019 through the present, although many were recorded for substantial periods of time, but shortly under the 30 minute timeframe.
On September 13, 2019, the NJSEA informed this court that the installation of the gas collection and control system (GCCS) was completed and the equipment was activated on September 6, 2019. According to the NJSEA, during a temporally unspecified "shakedown phase", it will continue to monitor the emissions and adjust the equipment accordingly to "ensure efficient collection of landfill gas."
Emissions continue, however.
In response, the Plaintiff informed this court that a review of the most recent DAMR submitted by the NJSEA reveals, with one exception on July 26, 2019, exceedances of the 30x30 standard continued both before and after the system was installed and began operations. Peak H2S levels were noted to approach 400 ppb. Since the system was switched on, exceedances were measured, according to the Plaintiff, on more than 1/3 of the days between September 5 and September 15. The Plaintiff submitted reports for measurements taken from September 17 through September 23. They, too, show substantial exceedances from the wells placed at the Landfill.
III. ANALYSIS
Injunctive relief is an extraordinary equitable remedy that is used primarily to forbid and to prevent irreparable injury. See Zoning Bd. Of Adjustment of Sparta Twp v. Service Elec. Cable Television of New Jersey, Inc, 198 N.J. Super. 370 (1985). It may only be granted upon a showing, by clear and convincing evidence, of entitlement to the relief requested. Dolan v. DeCapua, 16 N.J. 599, 614 (1954) ("injunctive judgments are not granted in the absence of clear and convincing proof"). Indeed, the power to issue an injunction is one of the strongest weapons at the command of any court. Continental Ins. Co. v. Honeywell Intern., Inc., 406 N.J. Super. 156, 186 n. 21 (App. Div. 2009). A preliminary injunction should be granted only sparingly and with great care; however, the decision to enter one rests within the sound discretion of the trial court. Waste Mgmt. of N.J., Inc. v. Union Cnty. Utils., 399 N.J. Super. 508, 520 (App. Div. 2008) (citation omitted); Mays v. Penza, 179 N.J. Super. 175, 179 (Law Div. 1980).
In this matter, this court entered a preliminary injunction in May 2019, finding that the Plaintiff clearly and convincingly established the 4 prongs of the pertinent test to close the Landfill temporarily. Specifically, this court found that the Plaintiff satisfied its burden and demonstrated that: (1) irreparable harm was likely to occur if the relief were denied; (2) the pertinent law was well settled; (3) the material facts were not substantially disputed and that there was a reasonable likelihood of success on the merits of the application, and (4) the balance of the hardships favored the issuance of the requested relief. Crowe v. DeGioia, 90 N.J. 126, 133-34 (1982).
Clear and convincing proof requires evidence that "produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence, so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts in issue." In re Seaman, 133 N.J. 67, 74 (1993).
Although this court made the conclusions based on the preliminary review of the documents submitted and arguments set forth at the preliminary hearing, and adopts the findings of fact and conclusions of law that were made as part of that decision, the plenary hearing has permitted this court to test those conclusions anew and evidentially.
For a preliminary injunction to be made final, satisfactory proof must exist that the applicant's legal right to such relief has been established, and proof be submitted that the injunction is necessary to prevent a continuing, irreparable injury. McCullough v. Hartpence, 141 N.J. Eq. 499, 502 (Ch. Div. 1948). Such an injunction must be no more extensive than is reasonably required to protect the interest of the party in whose favor it is granted. Sunbeam Corp v. Windsor-Fifth Ave.,14 N.J. 222, 232-33 (1954).
At trial, and following a review of the original materials, the' supplemental reports, and considering both the fact and expert testimony presented, this court is again satisfied that the Plaintiff has met its burden of proof by clear and convincing evidence.
A.
It is axiomatic that injunctive relief "should not be entered except when necessary to prevent substantial, immediate and irreparable harm." Subcarrier Commc'ns, Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div. 1997). The irreparable harm must also be non-speculative, concrete, and imminent. Ibid. Harm is irreparable If "money damages would not adequately redress the harm." Id. at 63 9 (citing Am. Employers' Ins. Co. v. Elf Atochem N.A., Inc., 280 N.J. Super. 601, 610-11 n.8 (App. Div. 1995); see also Hawaiian Dredging Constr. Co. v. United States, 59 Fed. Cl. 305, 317 (Fed. Cl. 2004) ("The usual rule is that mere loss of money does not qualify as irreparable harm if the party can be made whole through money damages when the claim is resolved on the merits."). Money damages may also be inadequate in circumstances involving "severe personal inconvenience." Crowe, 90 N.J. at 132-133.
Here, it is undisputed by the parties that the LFG emitting from the Landfill are hazardous. As the Appellate Division acknowledged, "to be sure, the emission of hydrogen sulfide gas at levels in excess of those permitted by. law presents a health risk to those citizens of the Town who have been, or may be exposed to it. . . ." The Appellate Division continued that "NJSEA does not dispute the health hazards associated with hydrogen sulfide gas emissions in excess of the limits imposed by law or its obligation to comply with the applicable laws and regulations governing those emissions." The numerous complaints submitted by the Plaintiff's residents illuminate the severity of the condition that exists in the environs around the Landfill. Curiously, in the original moving papers and throughout the trial, the NJSEA acknowledged the conditions as inconvenient and annoying, but downplayed their significance and impact on the Plaintiff's residents.
The hundreds of complaints reveal the direct and adverse impact that the H2S emissions have had on the Plaintiff. These detailed and specific reports do not demonstrate mere inconvenience nor minor annoyance. Rather, they identify and describe adverse health effects that have been suffered, and will continue to be suffered, by residents, visitors, and inspectors at the site.
The health effects and risk potential of the emissions were discussed by the experts that testified. As a general precept, the purpose of expert testimony is to "assist, not bind, the factfinder." In the Matter of A.I., 303 N.J. Super. 105, 114 (App. Div. 1997). The "sole justification and purpose of expert testimony is to assist the trier of fact to find a solid path through an unfamiliar and esoteric field." Thompson by Thompson v. Merrell Dow Pharmaceuticals, Inc., 229 N.J. Super. 230, 241 (App. Div. 1988). "[E]xpert testimony need not be given greater weight than other evidence nor more weight than it would otherwise deserve in light of common sense and experience." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). Significantly "a factfinder is not bound to accept the testimony of an expert witness, even if it is unrebutted by any other evidence." Torres, 342 N.J Super. at 431. The credibility of an expert and the weight or value to be accorded the expert's testimony lies within the exclusive province of the trier of fact. Cnty of Middlesex v. Clearwater Vill., Inc, 163 N.J. Super. 166, 173-74 (App. Div. 1978). A judge, as a fact-finder, is free to accept or reject all or part of an expert's testimony. Ibid.
Further, central to any determination in all litigation, and in this case in particular, is a consideration of the credibility of all of the witnesses that testified. The ultimate outcome of the issue presented in this matter centers squarely on the credibility assessments that this court is required to make about the overall reasonableness of the positions taken by the parties. After an opportunity to hear the case, to see and observe the witnesses, this court has a unique perspective to evaluate the credibility and overall reasonableness of each witness' testimony. Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998). Additional guidance as to credibility findings is provided by the model jury charges. Factfinders are instructed to consider the witness' interest in the case outcome; the accuracy of the witnesses' recollection; and the witnesses' ability to know what he or she was talking about. Model Jury Instructions (Civil) 1.12(L) Credibility (Approved November 1998). Common sense and overall reasonableness provide substantive lenses though which facts can, and should (especially in this matter), be assessed. Ibid.
Here, this court finds that the testimony provided about the adverse impact of H2S by the Plaintiff's expert is more credible and more reliable than the NJSEA's. Specifically, Dr. Barsotti, the Plaintiff's expert, testified directly and responsively to the questions posed by both sides. Voir dire revealed the superiority of her credentials that resulted in her qualification at trial as an expert in both toxicology and in pathology. The substance of her testimony was concise, direct, and relevant. It was clear to this court that testimony revealed a comprehensive understanding of the issues presented in the litigation, as well as her specific and requested role in the proceedings.
Substantively, Dr. Barsotti testified that she considered a variety of documents before she rendered her opinion. Her analysis included, specifically, a comprehensive review of the air quality reports generated by both the Plaintiff and the NJSEA. She testified relevantly about the toxic nature of the H2S emissions in general, as well as the basis of her knowledge and experience in testifying in similar exposure litigation in Maine, North Carolina, Wisconsin, and in Australia.
Dr. Barsotti described how odors "cause physiological responses" to those who might be exposed to them. Citing what appeared to be an adage among toxicologists, Dr. Barsotti noted that "dose makes a difference" referring to the impact that both quantity and the quality of the exposure would have upon one subject to it. Relying on a number of different scientific sources, Dr. Barsotti opined about the "dose-effect" relationship between the Landfill emissions and the impact on the community following the exposure to what she characterized as "acute toxicity." After her review of 160 days of DAMR from February 14, 2019, through July 23, 2019, and noting the frequent H2S emissions, she noted, on cross-examination, that the Plaintiff's community was at risk. This followed her simple algorithm that she noted on direct that the existence of a "toxic compound plus exposure equals risk." She continued, in response to a question by the NJSEA as to whether the exposure and attendant risk would be reduced if a mitigation system were implemented, she responded' "only if it works."
Her testimony is considered in stark contrast to that provided by Edward J. Eichen, who was proffered by the NJSEA to provide a toxicological opinion. Mr. Eichen is a certified industrial hygienist by the American Board of Industrial Hygiene. On voir dire, he noted that his clients include the federal government's military bases, universities and hospitals, and large apartment buildings- locations in which he had assessed fugitive emissions from facilities located in those venues. Although the NJSEA qualified him as expert in industrial hygiene and in human exposure assessment, he only spoke in wide generality about "dose" as a "critical element[]" of an exposure analysis. He appeared to place substantial reliance on the exposure limit thresholds established by other agencies including NJDEP, NYOSH, OSHA, and ACGIH, seeming to mitigate the severity of the H2S exceedances reported by the Plaintiff.
Additionally, and noticeably absent from his testimony, was any experience that Mr. Eichen had in landfill operations. He similarly lacked knowledge of gas collection systems or in ecology in general. His testimony did not include a consideration of either the NJ Department of Health's fact sheet as to its classification of the toxicity of H2S, nor of the Administrative Consent order requiring certain compliance by the NJSEA. Most importantly, however, Mr. Eichen was not aware of the fact that between February and April, 2019, the Landfill reported 35 impermissible exceedances with 6 exceeding 60 ppb, or double the administrative threshold. He was similarly unaware of the 12 exceedances in May, 2019, with 7 exceeding 60 ppb. He did not know that the DAMR showed 62 exceedances in June 2019, with 9 exceeding 60 ppb.
Where Dr. Barsotti was specific, exacting, and comprehensive in her testimony and her overall risk assessment to the Plaintiff, Mr. Eichen spoke more generally and without a full understanding nor comprehension of the specific characteristics of landfill operations in general, and conditions that existed at the Landfill in question in this litigation, specifically. Therefore, this court finds the testimony provided by Dr. Barsotti was more specific, more comprehensive, and more credible.
"The weight of the expert's opinion depends on the facts on which the expert bases his/her opinion." State v. Perez, 218 N.J. Super. 478, 486 (App. Div. 1987). Since Mr. Eichen did not consider facts material to this controversy while Dr. Barsotti did, Mr. Eichen's testimony must be considered less credible than Dr. Barsotti's. Mr. Eichen's lack of consideration of the exceedances are important omissions that materially and adversely impact his overall believability.
Therefore, considering the numerous reports about the specific and adverse impact that the emissions have on the Plaintiff's citizens, combined with the valid risk assessment provided by Dr. Barsotti that the conditions will continue unless abated, this court finds that this is clear and convincing evidence that establishes irreparable harm.
B.
The Plaintiff must also prove that the issues raised present a legally-settled right and the Plaintiff has a reasonable probability of success on the merits for the injunctive relief sought. Crowe, 90 N.J. at 133 (citing Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 304-05 (E. & A. 1878)). To satisfy this factor, the Plaintiff's claims must be premised on rights, or causes of action, that are cognizable under the law.
In this matter, the underlying legal claim is settled as a matter of law. The Plaintiff brings this matter under the Environmental Rights act. N.J.S.A. 2A:35A-4b. permits the Plaintiff to "commence a civil action . . . for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment or destruction." Further, "the action may be for injunctive . . . relief to compel compliance with a statute, regulation, or ordinance . . . ." Ibid. "The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation, or ordinance that there is a likelihood that the violation will recur in the future." Ibid.
Also, according to N.J.S.A. 13:1E-125.4c, the Plaintiff has the right to "institute an action or proceeding in the Superior Court for injunctive and other relief, for any violation of the air quality standard." This provision, as part of the Legacy Landfill Act, is triggered by the facts in this case. The continual and consistent discharges of H2S with many exceeding the regulatory threshold certainly demonstrates the on-going nature of the violation for which equitable relief is available.
Consideration of this matter under both statutes, clearly and convincingly represents the settled legal right necessary for the satisfaction of this element.
Similarly, to obtain a preliminary injunction, the Plaintiff must also demonstrate a reasonable probability of success on the merits of the claims. Crowe, 90 N.J. at 133 (citing Ideal Laundry Co. v. Gugliemone, 107 N.J. Eq. 108, 115-16 (E. & A. 1930). An injunction should not be granted where all the material facts are controverted. Crowe, 90 N.J. at 133 (citing Citizens Coach Co. 29 N.J. Eq. at 305-06).
In this case, the parties have stipulated to the facts that would and do trigger the entitlement under the pertinent statutes. The numerous DAMR generated from the 8 NJSEA stations and the Plaintiff's 2 have been admitted into evidence by consent. At bottom, these reports serve as the basis of the parties' respective arguments.
Since there have already been administrative actions taken against the NJSEA for its violations of NJDEP regulations and New Jersey Statutes, and since the exceedances from the Landfill frequently continue to surpass the 30 x 30 standard despite the gas collection system's operation, this represents the "substantial, credible evidence" necessary for this court to find that the Plaintiff has established that there is a reasonable probability of success on the merits of this claims. See Zaman v. Felton, 219 N.J. 199, 214 (2014) (quoting In re Civil Commitment of J.M.B., 197 N.J. 563, 597 (2009).
C.
Finally, this court must consider the respective hardships that each party would suffer if the relief sought were granted or denied. Crowe, 90 N.J. at 132-34. This analysis requires this court to recognize the equities of the parties' positions and then to balance them. Ibid. In this case, the interest that the Plaintiff seeks to protect is the health and well-being of its community, while the NJSEA's is exclusively financial. On balance, equity favors the Plaintiff's position over that of the NJSEA. These considerations support this conclusion:
First, the Landfill's permission to operate under the COA expires on November 14, 2019. The record is silent and does not reveal that the NJSEA has sought permission to renew or to extend that CAO to continue operations after that date. Assuming that it has not sought it, the NJSEA would suffer little hardship if the injunction were granted since it would not be able to continue operations after that date without it.
Second, despite the requirement contained in the ACO, that the NJSEA must take reasonable measures that "shall include, but need not be limited to, providing additional cover, and excavation and removal of malodorous waste", the only affirmative steps that it has taken toward this goal is to continue its monitoring operations and attempt to mitigate the condition with the installation of a gas collection system. This action appears to be taken with little or no regard for the adverse impact that the NJSEA's actions have had on the Plaintiff.
Third, the expert testimony that was provided by the Plaintiff about the effectiveness of the gas collection system and the feasibility of continued operations while the system operated, favors the Plaintiff's position rather than the NJSEA's. Specifically, the Plaintiff's expert, Robert Zelley, testified consistently and relevantly about the underlying conditions at the Landfill and how those unabated conditions exacerbated the H2S emissions. He noted that only realistic solution for the NJSEA to meet the ACO obligation is to stop the flow of water onto the offending material and thereby arrest the chemical reactions that created the H2S. He also noted that any efforts taken in mitigation of the condition will require continued assessment and modification during the upcoming seasons in order to gauge the impact of water, its interaction with the gypsum, and the temperature variations.
On the other hand, the testimony of the NJSEA's experts, Lisa Wilkerson and Michael Trupin, focused on efforts to ensure that the Landfill remain open and fully operational. Their collective testimony centered on self-serving efforts at mitigation of the offending conditions rather than those designed to eliminate it. Although both experts' testimony were designed to present the technical and scientific explanation for the intervention that the NJSEA decided to implement, this testimony was premised on a strategy' that was different than that which the ACO mandated. The ACO required the removal of the waste. However, the NJSEA's plans involved actions other than achieving that goal. Rather, the NJSEA sought only to mitigate, rather than eliminate, the offending condition that it was ordered to eradicate. Ms. Wilkerson acknowledges, on cross-examination, that there is no guarantee that the system proffered, and now implemented, would eliminate the offending discharges.
At trial, the Plaintiff objected to the testimony of Mr. Trupin and sought to have it barred as impermissibly net. This court, for the reasons set forth on the record following that oral application, denied the Plaintiff's request holding that enough information was provided to permit Mr. Trupin's assessment of the air quality as an expert witness. However, his testimony was considered by this court in light of the standards that govern all expert testimony. Following that analysis, this court places little, if any, weight upon his testimony. Voir dire revealed that Mr. Trupin has never provide expert testimony before. He holds no licenses in New Jersey. He only spoke generally about the quality of the proposed system, and almost guaranteed its success, despite the fact that the system was not yet operational.
Reliance was placed by both experts on the purported "State of the Art (SOTA) Manual for Equipment Used to Vent Landfills." This document was drafted in June 2014 by the State of New Jersey Department of Environmental Protection, Air Quality Permitting Program. However, the SOTA manual only exists now in draft form and that manual has not been formally approved. --------
Fourth, the proposed resolution is only, at best, temporary and there is no guarantee that the gas collection system would even satisfactorily abate the conditions. As noted in post-hearing submissions, the system is currently in a "shakedown phase", the length of which is unspecified. Both Mr. Trupin and Ms. Wilkerson noted that any system will need a period of adjustment to assess whether, and perhaps if, it will serve the intended purposes. Neither opined as to how long the period would last. Neither detailed what would be considered acceptable mitigation. Neither discussed the impact of whether a substantial intrusion of water had the possibility of overwhelming the system. Indeed, Ms. Wilkerson herself noted that emissions and readings will fluctuate during different seasons. Such a conclusion that the proposed solution to the problem will achieve its goal is only speculative at best. On the other hand, the solution confirmed by Mr. Zelley would be guaranteed to achieve the ACO's goal.
As to this point, this court again finds that the expert testimony provided by the Plaintiff was more credible that than provided by the NJSEA. Mr. Zelley rendered his opinion on the premise that was established by and between the NJSEA and the NJDEP to eliminate the offending conditions. His solution is reasonably calculated to do that. On the other hand, the NJSEA's experts proceeded to implement a plan that was designed to continue operations with only attempts at mitigating the problem.
Fifth, the NJSEA does not appear to have sufficient managerial control about what waste is accepted by the Landfill. This conclusion follows both the August 30, 2018, inquiries following the videotaped sludge dumping incident, as well as the November 13, 2018, report by inspectors about the lack of administrative oversight.
Finally, considering the testimony presented at the hearing in a totality, there was a conspicuous lack of attention to the obvious concerns expressed by the Plaintiff though the reports of its citizens as to the nature and severity of the Landfill conditions and discharges under scrutiny here. Undoubtedly, the NJSEA acknowledged the existence of the condition, but does not appear to have done anything to assist the Plaintiff nor to ameliorate the condition effectively. It appears to this court that the NJSEA seeks to side-step an agreed-upon responsibility with the creation of a system designed to allow the emissions to continue with only the possibility of it being managed. To that point, this court notes a consistent focus on the "duration based analysis" adopted by all of the NJSEA's witnesses. Frequent reference is made that despite the H2S that continually was discharged from the landfill every day since the monitoring was implemented, the fact that the discharges, many of which exceeded 30 ppb but for less than 30 minutes and are therefore not formally actionable, somehow lessens the impact upon the Plaintiff. While the constant emissions at issue may not be considered violative of the administrative regulations at every exceedance, the constant discharges at limits that are, nevertheless, exceedingly high do create a dangerous condition for the Plaintiff.
Said differently, it appears that since the NJSEA believes that since did not break the law, the condition that it created, and that it has chosen now only to maintain, must be considered acceptable by the Plaintiff and that the Plaintiff must simply adapt to it. Equity cannot tolerate that logic.
IV. CONCLUSION
Because the Plaintiff has proven clearly and convincingly that the condition at the Landfill represents a clear and immediate danger and because the NJSEA's substantively untested remedial efforts are temporary, at best, and the success of those efforts are speculative, the proper exercise of discretion requires that the preliminary injunction be made final.