On September 30, 2019, the Hudson County Superior Court granted the Town of Kearny the relief it sought against the New Jersey Sports and Exposition Authority (NJSEA) to keep the Keegan Landfill in Kearny closed. The court’s decision came after a full hearing and makes final a preliminary injunction that the court previously issued on May 24, 2019. The earlier preliminary injunction, also mandating closure, was challenged by the NJSEA and temporarily reversed by an appellate court until the State’s highest court unanimously reinstated the closure on June 12, 2019. This week’s Superior Court decision makes the earlier closure order final. In addition, it sets a court date in April 2020 for the Town’s remaining claims against the NJSEA including a 6-year accounting of landfill revenues and surplus moneys; attorney’s fees and costs; and municipal fines arising from violations at the landfill.
Mayor Alberto G. Santos expressed his satisfaction with the latest court decision: “This fully vindicates the Town’s position that the NJSEA mismanaged operations at the Keegan Landfill and in the process created a health hazard with dangerous emissions of hydrogen sulfide. The State must now take the necessary actions to eliminate hydrogen sulfide emissions, which includes capping the landfill with an impermeable liner.”
The court’s 47-page decision parses through the factual record and each party’s expert testimony in reaching the following conclusion:
Because the [Town] 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.
In arriving at its decision, the Court noted the numerous instances of hydrogen sulfide (H2S) emissions at the landfill in excess of a State regulatory requirement that imposes violations when H2S emissions exceed 30 parts per billion for 30 minutes or longer. The court noted that H2S exceedances continued even after the activation of a gas collection system at the landfill on September 5, 2019. The court referred to hundreds of public complaints about odors and health impacts from the landfill, using five pages of its opinion to quote many of them verbatim. The court also relied on the Town’s expert witnesses, including: toxicologist Deborah Barsotti, who testified about physiological responses from H2S exposure and characterized the gas as a poison; Town Health Officer Ken Pincus, who testified as to public complaints and readings from the Town’s air monitoring stations; and hydrogeologist Robert Zelley, who testified that the only way to eliminate emissions is to stop the influx of water through the installation of a permanent cap. In contrast, the court found that the “[NJSEA’s experts’] collective testimony centered on self-serving efforts at mitigation of the offending conditions rather than designed to eliminate it.”
The court also made note of the NJSEA’s inadequate controls and oversight of the waste types deposited in the landfill. It made particular note of a DEP violation notice dated August 30, 2018 for the unlawful dumping of liquid sewerage sludge on July 3, 2018, which was caught on videotape by a DEP inspector.1 The court referred to DEP records showing that the sludge was misidentified by the source, the hauler and the landfill operator in their manifests. The record also showed that the DEP did not consider the July 3rd liquid sludge disposal to be an isolated occurrence in asking for manifests with the “quantity and frequency of [sludge] containers sent to Keegan”.
According to Mayor Santos, while the court’s decision is a positive outcome for residents, the emissions will continue until the State takes the proper action: “Construction waste can take up to 10 years to decompose. That is why our community will continue our fight with the NJSEA, the DEP and Governor Murphy to require the prompt installation of a synthetic cap liner in order to prevent further decomposition of waste.”
It is uncertain if the NJSEA will appeal the court’s decision. Because the decision was based on the factual record and expert witnesses’ testimony, it could only be reversed if found to be “arbitrary or capricious”. Mayor Santos noted, “It’s a lengthy decision that is well-reasoned and contains detailed analysis of the factual record. Appellate courts generally do not reconsider questions of fact.”
1 The video was made public earlier this year by Mayor Santos after he obtained it from the DEP through an Open Public Records Act request.
