NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 5283
- 12T3

STRATEGIC ENVIRONMENTAL PARTNERS, LLC, Appellant ,
v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent .

__________________________

Argued September 8, 2014
– Decided Before Judges Sabatino, Simonelli and Leone. On appeal from the New Jersey Department of Environmental Protection. Matthew M. Fredericks argued the cause for appellant . Robert J. Kinney, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kinney and Aaron A. Love, Deputy Attorney General, on the brie f). The opinion of the court was delivered by SIMONELLI, J.A.D. Appellant Strategic Environment al Partners, LLC (SEP ), owner of the Fenimore Landfill (landfill) located in the APPROVED FOR PUBLICATION November 13, 2014
APPELLATE DIVISION

November 13, 2014A - 5283
- 12T3 2 Township of Roxbury , appeals from a June 26, 2013 emergency order issued by the Commissioner of respondent New Jersey Department of Environmental Protection ( Department ) . The order enjoined SEP from accepting any material onto the landfill without the Department's permission, and authorized the
D epartment to immediately seize con trol of the landfill to abate an alleged imminent threat to the environment arising from continued emissions of hydrogen su lfide . Pursuant to the emergency order, the Department seized control of the landfill that same day and then undertook or oversaw va rious remedial

measures. For the reasons that follow, we vacate the emergency order, without prejudice, and remand to the Law Divis i on for further proceedings. We do so because, as we explain, infra, the Department exceeded its authority under N.J.S.A. 1 3:1E
- 125.4 by seizing control of SEP's property without first securing judicial approval. The Department also erred in basing the emergency order retroactively on SEP's past hydrogen sulfide emissions by applying a statutory emissions standard that did

no t yet exist until the applicable statute was enacted the same morning the order was issued. Finally, the Department has yet to make the requisite showing to justify an emergency order
under N.J.S.A. 13:1E
- 125.9 .A - 5283
- 12T3 3 On remand, the Department shall have the opportunity to present expert and other proof to the trial court to support the Commissioner's finding that the hydrogen sulfide emissions presented an imminent threat to the environment on June 26,
2013 . In turn, SEP shall have the opportunity to present contrary evidence and attempt to meet its heavy burden under the statute to stay the Department's intervention. The trial court will then engage in appropriate fact
- finding that will enable appropriate appellate r eview, should either or both parties thereafter seek it. Lastly, we specifically reject SEP's contention that the new statute on which the Department relied in this case constitutes unconstitutional special legislation , and decline to
address SEP's other constitutionally
- based challenges to the Department's actions . I. The following facts inform our review. The l andfill is a
101
- acre site . From the early 1950's to the late 1970's,

a pproximately sixty acres were used as a solid waste landfill . The l andfill ceased operating in 1977, but was never capped or
closed . In 2010, SEP purchased the property and planned to cap and
close the landfill and install and operate a 10
- megawatt solarA - 5283
- 12T3 4 power generating facility using an array of photovoltaic panels. In October 2011, the D epartment approved a closure and post
closure plan for the landfill , which required SEP to close and maintain the landfill in accordance with the requirements of the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E
- 1 to
- 99.47 , and i ncluded certain conditions and a plethora of other plans, schedules, and documents (the closure plan) . 1 The closure plan p ermitted SEP to accept approved fill material onto the landfill in order to create the topography and stratigraph y 2 suitable for ins tallation of large solar panel s . Regarding odor control, the closure plan provided as follows:

T he closure activities shal l not cause any air contaminant to be emitted in violation of N.J.A.C. 7:27
- 5.2(a). Malodorous emissions shall be controlled by the use of daily cover. In the event that this is not satisfactory, a suitable deodorant as approve d and permitted by the Department's Air [Quality] Prog ram shall be used or the Department shall require a change in the type of recyclable materials accepted. Malodorous solid waste shall be covered immediately after excavation, unloading or redeposition with a minimum of six inches of cover material or approved alternative material.

1 The closure plan contemplated a forty
- eight
- month, four
- phased process commencing in October 2011 and endin g in October 2015.

2 "Stratigraphy" is de fin ed as "geology that deals with the origin, composition, distr ibution, and succession of strat a." Merriam Webster's Collegiate Dictionary 1163 (10th ed. 1997).A - 5283
- 12T3 5 T he D epartment and S EP executed an administrative consent
order in October 2011, which memorialized the closure plan (the consent order). I f SEP violated a ny condition , t he consent order permitted the D epartment to terminate the closure plan unilaterally upon written notice to SEP and take immediate

ac tion or seek injun ctive relief to protect the public health, safety , or welfare. By 2012, the Department determined that SEP had not complied with certain conditions of the closure plan . On May 14, 2012, the D epartment terminated th e consent order and notified S EP it intended to revoke the closure plan . O n May 18, 2012, the D epartment ordered S EP to immediately cease receiving fill material on to the landfill and warned it would ta ke immediate legal action if S EP failed to comply . In response, o n May 21, 2012, S EP filed a verified complaint and order to show cause (OTSC) in the Chancery Division , seeking to enjoin the
D epartment from taking any action. Prior to May 2012, SEP accepted approved fill material onto the landfill, including significant amounts of ground gypsum board , such as wallboard. I n November 2012, anaerobic decomposition of the ground gypsum board began generating large volumes of hydrogen sulfide , which emanated from the landfill. Hydrogen sulfide is an odorous, noxious, colorless, poisonous,A - 5283
- 12T3 6 fl ammable gas that produces a "rotten e gg" odor. H ydrogen sulfide is not on the list of New Jersey air toxics , s e e
N.J.A.C. 7:27
- 21.1 , and the New Jersey Department of Health (DOH) has determined that hydrogen sulfide has not been shown to cause cancer in humans, and its possible ability to cause cancer in animals has not bee n studied thoroughly. Similarly, base d on available data, the DOH does not believe there would be long
term adverse health effects from the emission of hydrogen sulfide. However, f or some individuals, hydrogen sulfide may cause eye, nose, and throat irritations, headaches, and nausea, as well as aggravate pre
- existing respiratory issues. In mid
- November 2012, the Department began receiving complaints from individuals living near the l andfill about the "rotten egg" odor and symptoms of irritated nose, throat, eyes,
and skin, nausea, asthmatic events , and headaches. 3 The Department investigated and determined that hydrogen sulfide emanating fr om the landfill was the cause of the odor . On December 10, 2012, the parties appeared before the Chancery Division judge who was then handling the case . The judge declined to restrain S EP from accepting fill material onto the landfill or permit the Department from taking any action ,

3 Fro m mid
- November 2012 to January 2013 , the Department received over six hundred complaints.A - 5283
- 12T3 7 finding there was no expert evidence of a toxic concentration of hydrogen sulfide emanating from the landfill . Instead, t he judge ordered S EP to properly cover the landfill with soil within forty
- eight hours and import and store enough extra soil
to thereafter cover an y exposed areas at the end of each workday. The judge also appointed an environmental expert to determine whether the hydrogen sulfide emissions constituted a threat to public health. The court
- appointed expert subsequently issued a report, as did the D epartment . Both reports concluded that the hydrogen sulfide emissions caused the "rotten egg" odor . Although t he D epartment determined the hyd rogen sulfide emissions were at improper levels , neither the Department nor the court
- appointed expert concluded this posed

an imminent threat to the environment or public health and safety . The Department later determined that SEP had not complied with the odor
- control p rovision of the closure plan or with the Chancery judge's order to properly cover the landfill . Beginning on December 28, 2012 , the Department issued numerous administrative orders and notices of civil administrative penalty assessment against SEP. The orders stated that SEP repeatedly violated the New Jersey Air Pollution Control Act,A - 5283
- 12T3 8 N.J.S.A. 2 6:2C
- 1 to
- 36, and N.J.A.C. 7:27
- 5.2(a) 4 by permitting odors to emanate from the landfill into the outdoor atmosphere in quantities causing air pollution. The record does not reveal there were any further proceedings in the Chancery Division matter . How ever , o n December 31, 2012, two Township residents filed a class action complaint and OTSC against S EP in the Law Division , alleging the maintenance of the landfill and foul odor emanating therefrom constituted a nuisance that should be enjoined . Thereaft er, i n January 2013, the Department initiated ambient air monitoring near the landfill to obtain hydrogen sulfide readings . T hirty
minute block readings indicated that hydrogen sulfide was emanating from the landfill at levels exceeding the olfactory
threshold of 8 parts per billion (ppb) . 5 At the time the Department took these readings, there were no standards for hydrogen sulfide emissions in New Jersey. The Department was joined as a third
- party defendan t in the Law Division matter , and filed an OTSC seeking a judgment permitting it to immediately seize control of the landfill in

4 N.J.A.C. 7:27
- 5.2(a) provides that "no person shall cause, suffer, allow or permit to be emitted into the outdoor atmosphere substances in quantities which shall result in air pollution."

5 The level at which an odor is detectable to the olfactory senses in the ambie nt air is around 8 p pb.A - 5283
- 12T3 9 order to alleviate the hydrogen sulfide emissions , among other things. T he Law Division judge set June 28, 2013 as the return
date . Before the return date , on June 26, 2013 , Governor Christie signed new legislation governing the closure of over six hundred legacy landfills, codified at N.J.S.A. 13:1E
- 125.1
to - 125.9 (the Legacy Landfill Law). 6 The Legacy Landfill Law established 30 ppb averaged over a thirty
- minute period as the standard for h ydrogen sulfide emissions from a legacy landfill . N.J.S.A. 13:1E
- 125.4(a). Upon the Department verifying complaints about hydrogen sul fide odors and determining the odors emanate d from a legacy la ndfill , the Legacy Landfill Law authorizes the Department to require the owner or operator to take certain corrective action . N.J.S.A.
13:1E
- 125.4(b)(1)
- (4). If the Department finds a violation of

6 The Legacy Landfill Law also governs sanitary landfill facilities and closed sanitary landfill facilities. N.J.S.A. 13:1E
- 125.1. It defines a "legacy landfill" as follows:

a landfill that ceased operations prior to January 1, 1982, and received for disposal: (1) solid waste; or (2) waste material that was received for disposal prior to October 21, 1976 and that is included within the definition of hazardous waste adopted by the federal government pursuant to the "Resource Conservation and Recove ry Act, [ 42 U.S.C.A. §§ 6901 to 6992k]. [ N.J.S.A. 13:1E
- 125.1.]A - 5283
- 12T3 10 the hydrogen sulfide standard , it may institute an action or proceeding in the Superior Court for injunctive and other relief . N.J.S.A. 13:1E
- 125.4(c). The court may proceed in a summary manner and grant temporary or interlocutory relief. Ibid. If the court finds a violation, it "shall require the

own er or operator of the legacy landfill . . . to abate the violation immediately and may require that wastes or materials be mixed, rolled, or covered, or that odor shields be installed to abate the violation. " Ibid. The court may also enter " a
t emporary o r permanent injunction that requires that the wastes or materials that are the source of the violation be mixed, covered, or removed , " or assess costs or damages against the violator. N.J.S.A. 13:1E
- 125. 4 (c) (1)
- (5).
T he Legacy Landfill Law authorizes th e C ommissioner to issue an emergency order as follows:

If the commissioner determines that any activity or activities occurring at a legacy landfill or closed sanitary landfill facility present an imminent threat to the environment or public health and safety , the provisions of [ N.J.S.A. 13:1E
- 9.5] shall govern the issuance of and any challenge to, any emergency order issued by the commissioner to the owner or operator of a legacy landfill or closed sanitary landfill facility. [ N.J.S.A. 13:1E
- 125.9 (emp hasis added) .]A - 5283
- 12T3 11 N.J.S.A. 13:1E
- 9.5 governs a challenge to an emergency order , and provides as follows:

Any action brought by a person seeking a temporary or permanent stay of an emergency order issued pursuant to this section shall be brought in the Superio r Court . Any person bringing such an action shall have the burden of demonstrating, by clear and convincing evidence , that the activity or activities specified in the emergency order as presenting an imminent threat to the environment or public health and safety do not present an imminent threat to the environment or public health and safety . [ N.J.S.A. 13:1E
- 9.5(c) (emphasis added) .] On June 26, 2013, the Commissioner issued an emergency
order pursuant to N.J.S.A. 13:1E
- 9.5(c) and
- 125.9. The Commissioner asserted that N.J.S.A. 13:1E
- 125.9 empowered him to abate violations of the hydrogen sulfide standards established by N.J.S.A. 13:1E
- 125.4(a). The Commissioner noted there were

rec orded hydrogen sulfide levels n ear the landfill exceeding the 30 ppb standard the " last several weeks " and thirty
- minute average readings exceeding the 30 ppb standard on June 9 and 15,
2013. The Commissi oner declared that "the [l]andfill's continued and repeated emission of hydrogen s ulfide in violation of the environmental standard established by [ N.J.S.A. 13:1E
125.4] , combined with [SEP's] repeated failure to abate and mitigate the environmental harm . . . pose[d] an imminent threa t to the environment." The Co mmissi oner enjoined SE P fromA - 5283
- 12T3 12 accepting fill material onto the landfill without the Department's express permission, and authorized the Department to seize co ntrol of the landfill "to take immediate action to abate the escape of hydrogen sulfide from the [landfill]." T he Depart ment seized control of the landfill on June 26, 2013, within thirty minutes of when Governor Christie signed the new legislation. SEP requested a stay of the emergency order, raising procedural, fa ctual, and legal challenges. The Department denied a stay. This appeal followed. 7
II. As a threshold matter, we address the jurisdictional issue.
The parties do not dispute that this appeal is from a final
state agency action . This court has exclusive jurisdiction to review final decisions or action s of a state agency or officer . R. 2:2
- 3(a)(2); see also I nfinity B road . C orp. v. N .J.
M eadowlands Comm 'n , 187 N.J. 212, 223 (2006) (holding that

" ' e very proceeding to review the action or inaction of a state administrative agency [is] by a ppeal to the Appellate Division ' " ) (quoting Cent . R.R. Co. v . Neeld , 26 N.J. 172, 184
-

7 At oral argument of this appeal, counsel advised there are several lawsuits pending in State and federal trial courts relating to this matter and involving some or all of the same parties .A - 5283
- 12T3 13 85 , cert. denied , 357 U.S. 928, 78 S . C t. 1373, 2 L. Ed. 2d 1371 (1958) ). This court also has exclusive jurisdiction "where it appears to have concurrent or overlapp ing jurisdiction with a trial court. " Pressler & Verniero, Current N.J. Court Rules , comment 3. 2. 1 on R. 2:2
- 3 (2015 ) . Accordingly, where a statute provides for review of agen cy action by the Superior Court, such

as N.J.S.A. 13:1E
- 9.5(c), " that designati on should be construed to refer to the Appellate Division of the Superior Cour t rather than a trial division. " Ibid. However, "the Appellate Division retains the discretion, in an appropriate case, to retain jurisdiction in an appeal from the action of a state agency, but to refer the matter to the Law Division or to the agency for such additional fact
- finding as it deems necessary to a just outcome." I nfinity B road . C orp. , supra , 187 N.J. at 227 ( citations omitted). We may remand to the trial court for a plenary hearing where there was no mechanism for a hearing in the agency and no a gency record on which to conduct a meaningful review . State Farm Mut . Auto . Ins. Co. v. N.J. Dep't of the Pub . Advocate , 227 N.J. Super. 99 , 132
- 34 (App. Div. 1988), aff'd , 118 N.J. 336 (1990); Montclair Twp. v. Hughey , 222 N.J. Super. 441, 446
- 47 (App. Div. 1987).
We conclude this court has jurisdiction to review the emergencyA - 5283
- 12T3 14 order , but remand to the Law Division for the reasons stated
below . We first conclude the Comm issioner lacked authority to issue the emergency order based on a violation of the hydrogen sulfide standard established by N.J.S.A. 13:1E
- 125.4 (a) . Upon the Department verifying complaints and determining the landfill was the source of the hydrogen sulfide odor, N.J.S.A. 13:1E
125.4(b)(1)
- (4) only authorized the Department to require SEP to take certain corrective action . Upon determining that SEP violated the hydrogen sulfide standard, N.J.S.A. 13:1E
- 125. 4(c) only authorized the Department to institute an action in the trial court for injunctive and other relief . Only the court had the authority to order immediate abatement, corrective action, or temporary or permanent restraints. N.J.S.A. 13:1E
125.4(c) (1)
- (5). N o part of N.J.S.A. 13: 1E
- 125.4 authorized the Department or Commissioner to enjoin SEP from receiving fill material onto the landfill or seize the landfill without first obtaining judicial approval. New Jersey Department of Environmental Prot ection v. Interstate Recycling, Inc. , 267 N.J. Super. 574, 577
- 78 (App. Div. 1993), on which the Depa rtment relies , does not change this result, but rather, supports it. I n Interstate Recycling , the operator of a solid waste facility ignored the Departmen t'sA - 5283
- 12T3 15 notices of violation of the SWMA. Id. at 575. Following a plenary hearing in the Chancery Division , the court found the operator violated the SWMA, and restrained the operator from operating the facility. Ibid. Ultimately, the court held that the Depar tment's decision to institute a n action in the Super ior Court for injunctive relief applied "where a state agency charged with environmental enforcement seeks to enjoin repeated violations of the police power stat ute." Id. at 577
- 78 (citing
N.J.S.A. 13:1E
- 9 ( d ) ). Here, reg ardless of when the hydrogen sulfide violations

we re alleged to have occurred, N.J.S.A. 13:1E
- 125.4 did not authorize the Commissioner to issue an emergency order coram non judice for a violati on of N.J.S.A. 13:1E
- 125.4(a) . The Depart ment could only direct SEP to take certain corrective action, N.J.S.A. 13:1E
- 125.4(b)(1)
- (4), or initiate an action in the trial court, N.J.S.A. 13:1E
- 125.4(c) . N either the Commissioner nor the D epartment had authority to issue an emergency order enjoining SEP 's activities on the landfill or seizing control of the landfill with out judicial action merely because of a violation of the hydrogen sulfide standard in
N.J.S.A. 13:1E
- 125.4(a). Even if the Commission er had such authority , any a ction predicated on N.J.S.A. 13:1E
- 125.4(a) , or the Legacy LandfillA - 5283
- 12T3 16 Law in general, constituted an unlawful retroactive application.
The re wa s no evidence that SEP violated N.J.S.A. 13:1E
- 125.4 (a) when the statute was actually in effect . Accordingly, using violations against SEP that occurred before the statute became effective require d unlawful retroactive application. See James
v. N .J. Mfrs. Ins. Co. , 216 N.J. 552, 559 (2014) (applying two
part retroactive analysis for a statute passed five months after the issuance of an insurance policy and two months after the accident prompting litigation). Generally, the law favors prospective, rather than retroactive, application of new legislation unless a recognized exception appli es. Id. at 556, 563 . "The preference for prospective application of new legislation 'is based on [the Court's] long
- held notions of fairness and due process.'" Id. at 563 (quoting Cruz v. Cent. Jersey Landscaping, Inc. , 195 N.J. 33, 45 (2008)) . Courts must apply a two
- part test to determine whether a
statute co uld be applied retroactively: (1 ) whether the Legislature intended to give the statute retroactive application; and (2 ) whether retroactive application "will result in either an unconstitutional i nterference with vested rights or a manifest in justice." Ibid. (quoting In re D.C. , 146A - 5283
- 12T3 17 N.J. 31, 50 (1996) (quoting Phillips v. Curiale , 128 N.J. 608, 617 (1992))).
Under the first part of the James two - part test, there are "three circumstances that wil l justify giving a statute retroactive effect : (1) when the Legislature expresses its intent that the law apply retroactively, either expressly or implicitly; (2) when an amendment is curative; or (3) when the expectations of parties so warrant." Ibid. (c itations omitted).
Under the first circumstance, the Legislature may demonstrate its intent to retroactively apply a statute by stating so in the language of the statute or legislative history, or by implication. Id. at 564 (citing Gibbons v. Gibbons , 86 N.J. 515, 522 (1981)). If the legislation expressly states it is to be applied retroactively, such intent should be given effect "absent a compelling reason not to do so." Ibid. Implied intent, however, "may be found from the statute's operation whe n retroactive application is necessary to fulfill legislative intent," or otherwise "'necessary to make the statute workable or to give it the most sensible interpretation.'" Ibid. (quoting Gibbons , supra , 86 N.J. at 522).
Here , t he Legislature expressl y provided only one instance
where the Legacy Landfill Law would apply retroactively.A - 5283
- 12T3 18 Specifically, N.J.S.A. 13:1E
- 125.2 provides that an administrative consent order entered into before or after the
law's effective date shall be voidable for any of the enumerated reasons. Other than this provision, the Legacy Landfill Law
does not refer to any retroactive application, and the present tense of the language in the statute generally suggests only prospective application. A lthough N.J.S.A. 13:1E
- 125.2 allows
pre - existing administrative consent orders to be voidable from particular future actions, this provision does not remotely suggest or imply that any and all hydrogen sulfide emissions that have ever occurred are subject to that statute.
Under the second circumstance , a statute may be applied retroactively if it is "curative," meaning "designed to 'remedy a perceived imperfection in or misapplication of a statute.'"
James , supra , 216 N.J. at 564 (quoting Schiavo v. Joh n F. Kennedy Hosp. , 258 N.J. Super. 380, 386 (App. Div. 1992), aff'd , 131 N.J. 400 (1993)). "'Generally, curative acts are made necessary by inadvertence or error in the original enactment of a statute or in its administration.'" Ibid. To be considered curative, however, the statute must "'not alter the act in any substantial way, but merely clarif[y] the legislative intent behind the [previous] act.'" Ibid. (second alteration in original) (quoting 2nd Roc
- Jersey Assocs. v. Town of Morristown ,A - 5283
- 12T3 19 158 N.J. 581, 605 (1999)) (citing Schiavo , supra , 258 N.J. Super. at 386).
T he Legacy Landfill Law is not an amendment to an existing law on legacy landfills; rather, it is entirely new legislation designed to regulate legacy landfills , sanitary landfill facilit ies , and closed sanitary landfill facilities . N.J.S.A. 13:1E
- 125.1. The Legacy Landfill Law creates a n entirely new body of legislation and does more than "'merely clarif[y] the legislative intent'" behind the SWMA. James , supra , 216 N.J. at 564 (quoting 2nd Roc
- Jersey Assocs. , supra , 158 N.J. at 605 ) . Accordingly, the "curative" justificatio n does not apply to the Legacy Landfill Law. Lastly, under the third circumstance, absent clear intent for prospective application, the parties' expectat ions may warrant retroactive application of the statute. Id. at 565 (citing Gibbons , supra , 86 N.J. at 523). In this case, w hile the Department may have expected retroactive application of the Legacy Landfill Law, SEP clearly had no such expectation and w as relying on presenting its case to the Law Division judge.
Even a ssuming the Legislature clearly intended retroactive application of the Legacy Landfill Law , or the statute is clearly curative, the court must still consider the second part
of the James t est addressing whether retroactive applicationA - 5283
- 12T3 20 will result in either an unconstitutional interference with vested rights or a manifest injustice. Ibid. This part "focuses on whether the parties relied on prior law to their detriment, such that retroactive application would cause a deleterious and irrevocable result." Ibid. (quoting Innes v.
Innes , 117 N.J. 496, 511 (1990) (quoting Gibbons , supra , 86 N.J. at 523
- 24 )) (internal quotation marks omitted). Regardless of whether retroactive application of the Legacy Landfill Law w as justified under one of the three aforementioned circumstances, there is certainly a manifest injury to SEP since it relied on presenting i ts case to the Law Division judge , as
N.J.S.A. 13:1E
- 125.4 (c) indeed requires . The issuance of the emergency order based on N.J.S.A. 13:1E
- 125.4 (a) destroyed that opportunity. Accordingly, even if permissible under part one of
the James test, retroactive application still fails part two because it "would cause a deleterious and irrevocable result." Ibid. (citations and internal marks quotations omitted). We, therefore, vacate the emergency order because it was partially
based on N.J.S.A. 13:1E
- 125.4. Although we conclude the Commission er lacked authority to issue an emergency order pursuant to N.J.S.A. 13:1E
- 125.4,
N.J.S.A. 13:1E
- 125.9 may have granted the Commissioner such authority in this case , but only if he found that SEP 'sA - 5283
- 12T3 21 activities on the landf ill p r e sented an imminent threat to the environment or public health and safety. Here, the Commissioner
found that SE P's failure to abate and mitigate the hydrogen sulfide posed a n imminent threat to the environment. However,

s ince the Commissioner could not premise this finding on SEP's violation of N.J.S.A. 13:1E
- 125.4(a), there had to be expert evidence establishing the hydrogen sulfide emissions presented an imminent threat to the environment on June 26, 2013 , and an opportunity for SEP to challenge t hat evidence. Beca use t he Legacy Landfill Law provides no mechanism for a hearing and there is no record on which we can conduct a meaningful review ,
we vacate the emergency order and remand to the Law Division for discovery, experts' reports, and a plenary hearing on the limited issue of whether the hydrogen sulfide emissions presented an imminent threat to the environment on June 26,
2013. 8 I nfinity B road . C orp. , supra , 187 N.J. at 223; State
Farm , supra , 227 N.J. Super. at 132
- 34 ; Montclair Twp. , supra , 222 N.J. Super. at 446
- 47. If the Commissioner establishes a prima facie case, SEP must demonstrate , by clear and convincing

8 Pursuant to Rule 2 :5
- 5(b), we remand to the Law Division rather than the Department. We do so also because there are other lawsuits pending in the trial court involving the same parties and issues .A - 5283
- 12T3 22 evidence , that the hydrogen sulfide emissions did not present an imminent threat to the environment. N.J. S.A. 13: 1E
- 9
- 5(c).
III. Having reached the above conclusion s , we need not address
SEP's constitutional arguments that the Department's seizure of the landfill deprived SEP of due process and constituted an unlawful taking without just compensation. However, we address, and reject, SEP's contention that the Legacy Landfill Law constitutes unlawful special legislation aimed at the landfill . 9 With any statute, courts presume the law is constitutional.
State v. Ates , 217 N.J. 253, 268 (2014) (citation s omitted) , cert. denied , ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2014) . The challenger of a statute "must shoulder the burden to overcome that strong presumption." Ibid. Courts "will afford every possible presumption in favor of an act of the Legislature" when reviewing State statutes for constitutionality. Town of Secaucus v. Hudson Cnty. Bd. of Taxation , 13 3 N.J. 482, 492 (1993), cert. denied , 510 U.S. 1110,
114 S. Ct. 1050, 127 L. Ed. 2d 372 (1994).

9 Prior to passing the Legacy Landfill Law, the Legislature considered, but did not pass, a bill that only concerned the landfill. Instead, the Legislature passed the Legacy Landfill Law, which governs hundreds of landfills , including landfills closed befor e January 1, 1982.A - 5283
- 12T3 23 "Where alternative interpretations of a statute are equally plausible, the view sustaining the statute's constitutionality is favored." Ibid. "Only a statute 'clearly repugnant to the constitution' will be declared void." Id. at 492
- 93 (quoting Newark Superior Officers Ass'n v. City of Newar k , 98 N.J. 212,
222
- 23 (1985)). No statute can authorize unconstitutional practices, and when a statute and the constitution conflict, "the statute must give way." Id. at 493 (citing Twp. of W. Milford v. Van Decker , 120 N.J. 354, 357 (1990) ). The New Jersey Constitution mandates that "[t]he Legislature shall not pass any private, special or local laws."
N.J. Const. art. IV, § VII. As our Supreme Court has held,

[f] rom a constitutional standpoint, a law is regarded as special legislation when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions t o the objects that it exclu des. [ Secaucus , supra , 13 3 N.J. at 494 (quoting Town of Morristown v. Woman's Club of Morristown , 124 N.J. 605, 622 (1991)) (other citations and internal quotation marks omitted). ] The Court established a three
- part test for determining
whether a statu te constitutes special legislation:

[W]e first discern the purpose and object of the enactment. We then undertake to applyA - 5283
- 12T3 24 it to the factual situation presented. Finally we decide whether, as so applied , the resulting classification can be said to rest u pon any rational or reasonable basis relevant to the purpose and object of the act. [ Vreeland v. Byrne , 72 N.J. 292, 300
- 01 (1977).] For the first step, to determine the rational purpose for a statute under a constitutional challenge, the court is not
l imited to the stated purpose of the legislation and "'should
seek any conceivable rational basis.'" Secaucus , supra , 133
N.J. at 494
- 95 (quoting Mahwah v. Bergen Cnty. Bd. of Taxation , 98 N.J. 268, 283, cert. denied , 471 U.S. 1136, 105 S. Ct. 2677,
86 L. Ed. 2d 696 (1985) ).
E ach provision of the Legacy Landfill Law had an obvious legitimate purpose . The legislation's ultimate goal was to protect the public and environment from harm and nuisance related to legacy landfills , sanitary landfill facilities, and closed sanitary landfill facilities. N.J.S.A. 13:1E
- 125.1 . The overarching goal of limiting public contamination from these facilities is consistent with the D epartment's purpose of working for "conservation of the nat ural resources of the State, the promotion of environmental protection[,] and the prevention of pollution of the environment of the State." N.J.S.A. 13:1D
9. All the provisions of the Legacy Landfill Law, which governA - 5283
- 12T3 25 management of administrative consent orders, site plan approval, hydrogen sulfide emissions, financial assurance for post
- closure activities, escrow for post
- closure monitoring costs, licensed professional engineer oversight, remedies in the event of a violation, and the issuance of emergenc y orders for imminent threats, all serve the general legitimate purpose of preserving the environment. N.J.S.A. 13:1E
- 125. 2.
Under the second Vreeland step, the court must apply the law to the factual context to determine whether exclusions from
the statu te's applications can be identified. Secaucus , supra , 133 N.J. at 510 (Stein, J., dissenting). Whether a statute constitutes special legislation generally turns on "'what is excluded and not what is included.'" Id. at 511 (Stein, J., dissenting) (quotin g Newark Superior Officers Ass'n , supra , 98
N.J. at 223). As the Court stated ,

t he Legislature has wide discretion in determining the perimeters of a classification, distinctions may be made with substantially less than mathematical exactitude, and an ade quate factual basis for the legislative judgment is presumed to exist. We must also be mindful of the strong presumption in favor of constitutionality, and the traditional judicial reluctance to declare a statute void, a power to be delicately exercised u nless the statute is clearly repugnant to the Constitution.A - 5283
- 12T3 26 [ Paul Kimball Hosp., Inc. v. Brick Twp. Hosp., Inc. , 86 N.J. 4 29, 446
- 47 (1981) (citations omitted) .]
T he Legacy Landfill Law serves the legitimate governmental purposes described under the first Vreeland step without any exclusions worthy of overriding the presumption in favor of constitutionality. The Legacy Landfill Law generally covers all legacy landfills governed by the SWMA , not just the landfill at issue here. N.J.S.A. 13:1E
- 125.1. The law's provisions are not so specific to the landfill or S EP that other communities wi th legacy landfills could not come within its scope. The re are over six hundr ed legacy landfill s across the S tate subject to the Legacy Landfill Law . Considering the breadth of facilities the law governs, S EP's contention that i t only applies to the
l andfill lacks merit. Finally, under the third Vreeland step, the court must determine whether "the resulting classification can be said to rest upon any rational or reasonable basis relevant to the purpose and object of the act." Vreeland , supra , 72 N.J. at 301. In this case, the broad classification of a legacy landfill fits within the broad scheme o f the S WMA for the
D epartment to manage and regulate the State's management of solid waste. Classifying a particular type of landfill facility, which is common throughout the S tate, to be subject toA - 5283
- 12T3 27 a particularized set of statutes and regulations serves the purpose of allowing the D epartment to " conserv[e] . . . the natural resources of the State, . . . promot[e] . . . environmental protection[,] and . . . prevent[] . . . pollution of the environment of the State." N.J.S.A. 13:1D
- 9. T he Legacy Landfill Law rationally and effectively meets these goals, and the classification of legacy landfills is rationally related to the purpose and object of the l aw and the SWMA in general. Accordingly, we conclude that the Legacy Landfill Law does not constitute unla wful special legislation aimed at the landfill. Because it is possible that, on remand, the pa rties may resolve this dispute conclusively on non
- constitutional grounds,

we decline to address at this time other constitutional issues raised by SEP . As a general rule, our courts strive to avoid reaching constitutional issues unless they are "'imperative to the disposition of litigation.'" Comm . to Recall Robert
Menendez v. Wells , 204 N.J. 79, 96 (2010) (quoting Randolph Twp. Ctr., L.P. v. Cnty. of Morris , 186 N.J. 78, 80 (2006)). The trial court's forthcoming factual findings concerning the emergency order may also bear on any constitutional analysis that may be required if the case is litigated further. See J.B.

v. N.J. State Parole Bd. , 433 N.J. Super. 327, 330
- 31 (App. Div. 2013), certif. denied sub nom. , B.M. v. N.J. State Parole Bd. ,A - 5283
- 12T3 28 217 N.J. 296 (2014) (remanding to the trial court certain fact
finding functions in order to evaluate the appellant's constitutionally
- based challenge to a State agency's actions). Affirmed in part as to the claim of unconstitutional special legislation; otherwise v acated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 10 If either party is aggrieved by the trial

co urt's determinations following a plenary hearing and fact
finding, that party may file a new appeal with this court.

10 Although Infinity Broad. Corp. , supra , 187 N.J. at 227 , suggests that the appellate court can retain jurisdiction while fact
- f inding occurs in the trial court, we discern no practical imperative to do so in this case. For one thing , it is not yet clear which part y may be a future appellant, depending on the outcome of the remand. In addition, the trial court may choose in its discretion to consolidate the present litigation with some or all of the other pending related cases involv ing the landfill. If such consolidation occurs, it is conceivable that additional parties other than the Department and SEP may seek appellate review at the same time. The uncertain future dimensions of both this case and the related cases makes it prefe rable that fresh appeals be filed, if in fact further appellate review is sought.