Fenimore Landfill Is Not Alone
Hundreds of Old Dumps Pollute Streams, Groundwater, & Air Quality
DEP Plays Regulatory Games To Waive Their Own Regulations
This is a story about how DEP is playing extremely destructive regulatory games to allow hundreds of old landfills to continue to pollute the environment and to keep that information from the public.
Turning lemons into lemonade, it’s now all swept under the rug by big plans to install solar on a handful of those landfills, as if that will cleanup the huge pollution problem those landfills pose.
We will tell this story in light of the most visible example right now,the Fenimore landfill in Roxbury, NJ.
What DEP landfill regulations require and what DEP actually has done there are completely at odds.
So after you read all those press clips and watch all the TV news videos of hundreds of angry people in Roxbury railing against DEP’s unilaterally imposed – without public opportunity to comment – Fenimore Landfill closure plan fiasco, first take a look at the big picture – from DEP’s 2006 Solid Waste Management Plan Update – section on Landfill Closure Planning:
the Department’s landfill closure objectives are to
- Identify those landfills which have terminated operations, but have not been properly closed consistent with DEP closure requirements;
- Identify the closure requirements needed by each of these landfills;
- Rank these landfills according to the severity and significance of the environmental risks they pose;
- Identify responsible party or alternative funding sources to pay for proper closure of these landfills;
- Where necessary, remediate those landfill sites that are polluting the ground and surface waters of the state; and
- Promote the redevelopment of landfill sites which have been properly closed and remediated with an emphasis on development of parks and open space where appropriate.
Has DEP accomplished any of these objects at the Fenimore landfill?
Next, let’s look at the scope of the statewide landfill problem, again, based on DEP’s own 2006 Solid Waste Plan Update:
Universe of Concern
There are over 600 known or suspected landfills in New Jersey. There have been approximately 400 landfills that registered with DEP and are known to have accepted solid waste, and DEP has fairly detailed records on these facilities. There are approximately 200 additional sites that are known or suspected to contain buried solid waste, but never registered with the DEP. The DEP has very limited records on these unregistered facilities.
Of the approximately 400 registered landfills, more than half ceased operations prior to January 1, 1982, and were not required to submit detailed closure and post closure care plans, although they were required to install and maintain a two foot soil final cover. The DEP commonly refers to these landfills as the “pre-1982” facilities. Detailed plans are required of the 166 landfills which operated beyond January 1, 1982, as they are subject to the “Sanitary Landfill Facility Closure and Contingency Fund Act” (Closure Act), N.J.S.A. 13:1E-100, which makes those landfills subject to comprehensive regulatory controls upon closure. The Closure Act also imposed a tax on those landfills that operated beyond January 1, 1982, with the proceeds accruing in escrow accounts specifically dedicated to landfill closure. The DEP commonly refers to these landfills as the “post-1982” facilities. Presently, 146 of the 166 post-1982 landfills have closed, while 20 continue to operate.
Without getting too deep into the legal weeds, keep in mind that DEP has broad and strong legal powers to regulate any discharge of pollution from any landfill – regardless of the age of the landfill or when it operated – to the air, land, surface, or groundwater of the State under multiple State laws, including the NJ Spill Compensation and Control Act (NJ’s State “Superfund” law), the NJ Water Pollution Control Act, and the NJ Air Pollution Control Act.
So please don’t buy DEP’s excuses and lies that they have no power to do the right thing.
[Full disclosure: I was part of the DEP team that drafted the first “Statewide Landfill Closure Plan” in the late 1980’s. That Plan called for a $3 BILLION fund to properly close over 400 old polluting landfills.
That Closure Plan was presented to then DEP Commissioner Chris Daggett.
Daggett practically laughed us out of his office, with a quip that we must be out of our minds if we thought that he was going to go to Governor Kean with a request for $3 billion to close old landfills.
So, I tend to get a little pissed off when well fed people like Daggett (Dodge Foundation) and Mike Catania (Duke Foundation) prance around as wise men on a Blue Ribbon Panel urging State policymakers to bite the bullet and make difficult choices to fund environmental and infrastructure programs. What career or personal risks did they take on their watch at DEP?]
But I bitterly digress – lets get back to take a look at what the DEP landfill regulations require:
DEP landfill regulations flat out prohibit:
(read the entire rule, you’ll be amazed at what is required – especially
- 7:26-2A.6. Sanitary landfill environmental performance standards;
- 7:26-2A.7 Sanitary landfill engineering design standards and construction requirements;
- 7:26-2A.8 Sanitary landfill operational and maintenance requirements
- 7:26-2A.9 Closure and post-closure care of sanitary landfills
7:26-2A.4. General prohibitions and requirements
(a) Open dumps are declared to be a nuisance, hazardous to human health, and are prohibited.
(b) No new sanitary landfill shall be constructed or any existing landfill continue to operate where solid waste is or would be in contact with the surface or ground waters. This provision shall not apply to cleanfill.
(c) Leachate from any sanitary landfill shall not be allowed to drain or discharge into the surface water or groundwater except as permitted pursuant to the NJPDES regulations, N.J.A.C. 7:14A.
(d) No sanitary landfill shall be operated in a manner that would result in the impairment of the quality of the surface or groundwaters to a degree that would degrade the quality of either the surface or ground waters beyond the classification established by the Department in the Surface Water Quality Standards, N.J.A.C. 7:9-4, or the Ground Water Quality Standards, N.J.A.C. 7:9C.
(e) No sanitary landfill shall be operated in a manner that would result in the degradation of the ambient air quality beyond the standards established by the Department pursuant to N.J.A.C. 7:27.
[(f) – (l)]
(m) The owner or operator of an existing sanitary landfill shall be required to design in accordance with N.J.A.C. 7:26-2A.7(f)3 or 4, and after Departmental approval of the design, construct, operate and maintain, a gas collection, venting and monitoring system when gas is detected at the points set forth at N.J.A.C. 7:26-2A.7(f)3 or 4;
(n) The owner or operator of an existing sanitary landfill shall install a groundwater monitoring system in accordance with the requirements of N.J.A.C. 7:14A-6.
(o) The owner or operator of an existing sanitary landfill shall be required to design and after Departmental approval of the design, construct, operate and maintain a leachate control collection and treatment system when leachate is determined to be impacting the quality of the surface and groundwaters of the area.
When the DEP authorized the “old” Fenimore landfill – which was not subject to certain closure and permitting portions of the above DEP regulations – to accept 400,000 cubic yards of construction and demolition waste, the landfill became a “new” landfill subject to all these DEP landfill regulations.
The new disposal operation there also became subject to DEP Landfill closure regulations, which require things like this:
(d) General requirements for a Closure and Post-Closure Plan are as follows:
1. No person shall construct or operate a sanitary landfill without an approval from the Department of a Closure and Post-Closure Plan. Such Plan shall consist of both a Closure and Post-Closure Care Plan and a Closure and Post-Closure Financial Plan in accordance with the provisions of (e) and (f) below, except as otherwise authorized by the Department.
2. The submission for approval by the Department of the Closure and Post-Closure Plan shall be made upon application for new sanitary landfill permit.
Before DEP can issue a landfill permit or closure plan approval, DEP must provide extensive notice and multiple opportunities for public review and public comment.
DEP rules require: (NJAC 7:26- 2
6. Upon determining that the application or Addendum is complete, the Department shall send notice that an application or Addendum has been filed identifying the applicant, describing the type of facility, location of the facility and locations where and when application materials are available for review to the following:
i. The mayor, planning board, environmental commission and the health officer of any municipality in which any portion of the facility is proposed to be located;
ii. The mayor, planning board, environmental commission and health officer of any municipality, the borders of which lie within one mile of the perimeter of the proposed facility; and
iii. The implementing agency for the solid waste management plan of any solid waste management district in which any portion of the facility is proposed to be located;
7. Upon determining that an application or Addendum is complete, the Department shall submit a copy of the SWF permit application materials to the following for review: (same parties)
[8. – 9.]
10. The Department shall publish notice in the DEP Bulletin of the receipt of each new application, and each significant agency action on an application currently before it. Notice shall be given for significant actions including, but not limited to, the determination of completeness, tentative approval, rejection of an application, public hearings on a tentative approval, final decision on a permit, transfer of a permit and permit renewal. Publication of notice in the DEP Bulletin constitutes constructive notice to all interested persons of the Department actions on SWF permits.
[12.]
13. Not later than 45 days after the granting of a tentative approval of an application for a SWF permit, the Department shall conduct a public hearing on the proposed facility and operator in accordance with the procedures set forth in N.J.A.C. 7:26-2.5.
The public hearing requirements are equally comprehensive and detailed:
7:26-2.5 Public hearing procedures
(a) The Department shall be responsible for scheduling and conducting a public hearing in reasonable proximity to the location of the proposed facility.
(b) The Department shall designate a hearing officer who shall exercise reasonable discretion in the conduct of the hearing and shall encourage general discussion of the proposed facility, including public comment on the proposed operation, tentative approval or other action to be taken by the Department.
(c) The public hearing shall be a non-adversarial hearing at which any interested person may submit oral or written statements and data concerning the proposed operation, tentative approval or other agency action.
(d) The Department may make a presentation at the public hearing, describing the proposed facility and explaining the basis for the issuance of the tentative approval or other proposed action.
(e) The applicant shall appear at the public hearing on a tentative approval and be available to answer questions regarding the proposed facility. Failure of an applicant to appear and answer relevant questions at the public hearing may result in revocation of the tentative approval and denial of the application. The applicant may make a presentation at the public hearing, describing the proposed facility.
(f) The public hearing proceedings shall be transcribed or recorded and the transcript shall be part of the administrative record.
(g) The hearing officer, to the extent feasible, shall conduct the hearing in the following manner:
1. All interested persons shall be afforded the opportunity to appear and comment at the hearing;
2. Time shall be allotted for individuals to present comments where necessary to accommodate those present and to limit repetition;
3. Testimony on irrelevant matters shall be excluded; and
4. The hearing officer shall ensure that the hearing proceeds in an orderly fashion.
(h) To help ensure that relevant questions are answered at the public hearing, such questions may be submitted to the Department no later than five days prior to the public hearing. At the time of the hearing, the Department or the applicant, in the Department’s discretion, will make every reasonable effort to answer these questions and other relevant questions received at the hearing.
The DEP often tried to hide behind the fact that landfills that ceased operations prior to Jan 1982 are not subject to landfill closure requirements under State Landfill Closure laws. These landfills are now described as “legacy landfills”.
But that is just a big lie. And there it is in plain sight, for anyone willing to read the documents.