In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the open air . . . of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance . . .” is neither preempted by the New Jersey Solid Waste Management Act (“SWMA”) nor unconstitutionally broad or vague.  The case, New Jersey v. Strategic Environmental Partners, LLC, No. A-4968-13T4, was decided on November 19, 2015 by Judges Messano and Simonelli.

The purchaser of a landfill located in Roxbury Township who sought to cap the landfill and build a solar power facility challenged the township’s strict ordinance.  Issues for the purchaser, Strategic Environmental Partners, LLC (“SEP”), arose when it accepted fill materials for the construction of the solar facility that contained large amounts of a type of drywall that generated pungent hydrogen sulfide gas.  In addition to its powerful smell, the gas allegedly caused negative health effects for residents living nearby.  

Soon after SEP’s acquisition of the landfill, SEP had entered a consent order with the New Jersey Department of Environmental Protection memorializing a plan for closure and post-closure of the landfill.  The plan permitted SEP to accept approved fill materials like the drywall-containing materials mentioned above and laid out SEP’s responsibilities with regard to odor control.  When the issues arose, NJDEP exercised its remedial authority under the consent order to seize control of the landfill in order to control the odors and pollution.

NJDEP’s enforcement notwithstanding, SEP was also charged with violation of Roxbury Township’s local ordinance, was found guilty at trial, and was ordered to pay fines and court costs.  On appeal, SEP argued that the local ordinance, which appears to prohibit air pollution of almost any type, was unconstitutionally vague and that its sweeping application undercut the regulatory intent of the SWMA.

Addressing SEP’s constitutional argument first, the superior court found that the ordinance was sufficiently tailored to the concerns that the municipality sought to address.  The court distinguished two local ordinances that had previously been declared unconstitutional that prohibited “[a]ny matter, thing, or condition or act which is or may become detrimental . . .” and “[a]ny matter, thing, condition or act which is or may become an annoyance . . . ,” respectively.  It found that Roxbury’s ordinance passed muster simply because it was “more specific” in that it “prohibits the escape of smoke, fly ash, dust or gases.”  The court did not examine the prevalence of these acts or the resulting ambiguity with which the ordinance may be enforced in the future.

Similarly, the court dismissed SEP’s argument that the local ordinance was preempted by the SWMA without an in-depth analysis.  SEP argued that the regulatory regime established by the SWMA, and specifically the consent order that it had entered with NJDEP, exclusively governed SEP’s responsibilities with regard to odor control and closure and post-closure of the landfill.  SEP pointed out that the NJDEP had even limited SEP’s ability to abate the odors by disallowing certain proposed remedies.  Still, the court found that the particular ordinance was merely parallel to the SWMA and did not frustrate its purpose or create a conflict.  The court attempted to distinguish Township of Little Falls v. Bardin, 173 N.J. Super. 397 (App. Div. 1979), which “rejected a municipal ordinance that prevented landfills from operating anywhere in the municipality’s borders,” but the court did not address whether broad application of Roxbury’s ordinance would effectively create the same restriction.

The court acknowledged that its analysis was cursory, stating that the defendants’ arguments were “without sufficient merit to warrant discussion in a written opinion,” but the discussion that was providedappeared to raise more questions than it resolved.  Despite citing a 1976 New Jersey Supreme Court opinion that found that the “SWMA reflected a ‘comprehensive regulatory scheme,’” the court appeared to overlook the potentially powerful impact that such a broadly applicable local ordinance could have.  Instead, the court focused on the broad intention of the ordinance to apply to the “emission of vapors or gases from anywhere within the Township, not just the landfill.” 

Looking ahead, the court’s opinion on constitutionality and preemption appears to offer local legislators conflicting directions with regard to legislative drafting and risks creating conflicting authorities with which local facilities must adhere.