NOT FOR PUBLICATION WITHOUT THE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 

brief).

The opinion of the court was delivered by

SIMONELLI, J.A.D.

Appellant Strategic Environmental Partners, LLC (SEP), 

owner of the Fenimore Landfill (landfill) located in the 

APPROVED FOR PUBLICATION

November 13, 2014

APPELLATE DIVISION

November 13, 2014
2 A-5283-12T3

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 

Department to immediately seize control of the landfill to abate 

an alleged imminent threat to the environment arising from

continued emissions of hydrogen sulfide. Pursuant to the 

emergency order, the Department seized control of the landfill 

that same day and then undertook or oversaw various remedial 

measures.

For the reasons that follow, we vacate the emergency order, 

without prejudice, and remand to the Law Division for further 

proceedings. We do so because, as we explain, infra, the 

Department exceeded its authority under N.J.S.A. 13:1E-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 

not 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.
3 A-5283-12T3

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 review, 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 landfill is a

101-acre site. From the early 1950's to the late 1970's, 

approximately sixty acres were used as a solid waste landfill. 

The landfill 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 solar 
4 A-5283-12T3

power generating facility using an array of photovoltaic panels.

In October 2011, the Department approved a closure and postclosure 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 included certain conditions and a plethora of other plans, 

schedules, and documents (the closure plan).

1

The closure plan permitted SEP to accept approved fill 

material onto the landfill in order to create the topography and 

stratigraphy

2 suitable for installation of large solar panels. 

Regarding odor control, the closure plan provided as follows: 

The closure activities shall 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 

approved and permitted by the Department's

Air [Quality] Program 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 ending in October 2015. 

2 "Stratigraphy" is defined as "geology that deals with the 

origin, composition, distribution, and succession of strata." 

Merriam Webster's Collegiate Dictionary 1163 (10th ed. 1997).
5 A-5283-12T3

The Department and SEP executed an administrative consent 

order in October 2011, which memorialized the closure plan (the 

consent order). If SEP violated any condition, the consent 

order permitted the Department to terminate the closure plan 

unilaterally upon written notice to SEP and take immediate 

action or seek injunctive 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 Department terminated the consent order and 

notified SEP it intended to revoke the closure plan. On May 18, 

2012, the Department ordered SEP to immediately cease receiving 

fill material onto the landfill and warned it would take 

immediate legal action if SEP failed to comply. In response, on 

May 21, 2012, SEP filed a verified complaint and order to show 

cause (OTSC) in the Chancery Division, seeking to enjoin the 

Department 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. In 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, 
6 A-5283-12T3

flammable gas that produces a "rotten egg" odor. Hydrogen 

sulfide is not on the list of New Jersey air toxics, see

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 been studied thoroughly. Similarly, based on 

available data, the DOH does not believe there would be longterm adverse health effects from the emission of hydrogen 

sulfide. However, for 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 landfill 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 from 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 SEP from accepting fill material onto 

the landfill or permit the Department from taking any action,

 

3 From mid-November 2012 to January 2013, the Department received 

over six hundred complaints. 
7 A-5283-12T3

finding there was no expert evidence of a toxic concentration of 

hydrogen sulfide emanating from the landfill. Instead, the 

judge ordered SEP to properly cover the landfill with soil

within forty-eight hours and import and store enough extra soil 

to thereafter cover any 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 Department. Both 

reports concluded that the hydrogen sulfide emissions caused the 

"rotten egg" odor. Although the Department determined the 

hydrogen 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 provision 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, 
8 A-5283-12T3

N.J.S.A. 26:2C-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. However, on 

December 31, 2012, two Township residents filed a class action

complaint and OTSC against SEP in the Law Division, alleging the 

maintenance of the landfill and foul odor emanating therefrom 

constituted a nuisance that should be enjoined. Thereafter, in 

January 2013, the Department initiated ambient air monitoring 

near the landfill to obtain hydrogen sulfide readings. Thirtyminute 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 defendant 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 ambient air is around 8 ppb. 
9 A-5283-12T3

order to alleviate the hydrogen sulfide emissions, among other 

things. The 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 hydrogen sulfide 

emissions from a legacy landfill. N.J.S.A. 13:1E-125.4(a).

Upon the Department verifying complaints about hydrogen sulfide 

odors and determining the odors emanated from a legacy landfill,

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 Recovery Act, [42 U.S.C.A.

§§ 6901 to 6992k].

[N.J.S.A. 13:1E-125.1.]
10 A-5283-12T3

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 

owner 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 

temporary or 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). 

The Legacy Landfill Law authorizes the Commissioner 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 (emphasis added).]
11 A-5283-12T3

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 Superior 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

recorded hydrogen sulfide levels near 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 Commissioner declared that "the [l]andfill's 

continued and repeated emission of hydrogen sulfide in violation

of the environmental standard established by [N.J.S.A. 13:1E125.4], combined with [SEP's] repeated failure to abate and 

mitigate the environmental harm . . . pose[d] an imminent threat 

to the environment." The Commissioner enjoined SEP from 
12 A-5283-12T3

accepting fill material onto the landfill without the 

Department's express permission, and authorized the Department 

to seize control of the landfill "to take immediate action to 

abate the escape of hydrogen sulfide from the [landfill]." The 

Department 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, factual, 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 actions of a state agency or officer. 

R. 2:2-3(a)(2); see also Infinity Broad. Corp. v. N.J.

Meadowlands Comm'n, 187 N.J. 212, 223 (2006) (holding that 

"'every proceeding to review the action or inaction of a state 

administrative agency [is] by appeal 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.
13 A-5283-12T3

85, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 

(1958)). This court also has exclusive jurisdiction "where it 

appears to have concurrent or overlapping 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 agency action by the Superior Court, such 

as N.J.S.A. 13:1E-9.5(c), "that designation should be construed 

to refer to the Appellate Division of the Superior Court 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." Infinity Broad. Corp., 

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 agency 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 emergency 
14 A-5283-12T3

order, but remand to the Law Division for the reasons stated 

below. 

We first conclude the Commissioner 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. 13:1E125.4(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. 13:1E125.4(c)(1)-(5). No 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 Protection v. 

Interstate Recycling, Inc., 267 N.J. Super. 574, 577-78 (App. 

Div. 1993), on which the Department relies, does not change this 

result, but rather, supports it. In Interstate Recycling, the 

operator of a solid waste facility ignored the Department's 
15 A-5283-12T3

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 Department's decision to institute an action in the Superior 

Court for injunctive relief applied "where a state agency 

charged with environmental enforcement seeks to enjoin repeated 

violations of the police power statute." Id. at 577-78 (citing 

N.J.S.A. 13:1E-9(d)). 

Here, regardless of when the hydrogen sulfide violations 

were 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 violation of N.J.S.A. 13:1E-125.4(a). The 

Department 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). Neither the 

Commissioner nor the Department had authority to issue an 

emergency order enjoining SEP's activities on the landfill or 

seizing control of the landfill without 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 Commissioner had such authority, any action 

predicated on N.J.S.A. 13:1E-125.4(a), or the Legacy Landfill 
16 A-5283-12T3

Law in general, constituted an unlawful retroactive application. 

There was 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 required unlawful retroactive application. See James 

v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 559 (2014) (applying twopart 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 applies. 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 could 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 interference with vested 

rights or a manifest injustice." Ibid. (quoting In re D.C., 146 
17 A-5283-12T3

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 will 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. (citations 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 when 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, the Legislature expressly provided only one instance 

where the Legacy Landfill Law would apply retroactively. 
18 A-5283-12T3

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. Although 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. John 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, 
19 A-5283-12T3

158 N.J. 581, 605 (1999)) (citing Schiavo, supra, 258 N.J. 

Super. at 386). 

The 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 

facilities, and closed sanitary landfill facilities. N.J.S.A.

13:1E-125.1. The Legacy Landfill Law creates an 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" justification does not apply to the 

Legacy Landfill Law. 

Lastly, under the third circumstance, absent clear intent 

for prospective application, the parties' expectations may 

warrant retroactive application of the statute. Id. at 565

(citing Gibbons, supra, 86 N.J. at 523). In this case, while 

the Department may have expected retroactive application of the 

Legacy Landfill Law, SEP clearly had no such expectation and was 

relying on presenting its case to the Law Division judge.

Even assuming 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 test addressing whether retroactive application 
20 A-5283-12T3

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 was justified under one of the three aforementioned 

circumstances, there is certainly a manifest injury to SEP since 

it relied on presenting its 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 Commissioner 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's 
21 A-5283-12T3

activities on the landfill presented an imminent threat to the 

environment or public health and safety. Here, the Commissioner 

found that SEP's failure to abate and mitigate the hydrogen 

sulfide posed an imminent threat to the environment. However, 

since 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 that evidence. Because the 

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 Infinity Broad. Corp., 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.
22 A-5283-12T3

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 conclusions, 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) (citations 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, 133 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 before January 1, 1982. 
23 A-5283-12T3

"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 Newark, 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 to the objects that it 

excludes.

[Secaucus, supra, 133 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 statute constitutes special legislation:

[W]e first discern the purpose and object of 

the enactment. We then undertake to apply 
24 A-5283-12T3

it to the factual situation presented. 

Finally we decide whether, as so applied, 

the resulting classification can be said to 

rest upon 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 

limited 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)). 

Each 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 Department's purpose of 

working for "conservation of the natural resources of the State, 

the promotion of environmental protection[,] and the prevention 

of pollution of the environment of the State." N.J.S.A. 13:1D9. All the provisions of the Legacy Landfill Law, which govern
25 A-5283-12T3

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 emergency 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 statute'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) (quoting Newark Superior Officers Ass'n, supra, 98 

N.J. at 223). As the Court stated,

the Legislature has wide discretion in 

determining the perimeters of a 

classification, distinctions may be made 

with substantially less than mathematical 

exactitude, and an adequate 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 

unless the statute is clearly repugnant to 

the Constitution.
26 A-5283-12T3

[Paul Kimball Hosp., Inc. v. Brick Twp. 

Hosp., Inc., 86 N.J. 429, 446-47 (1981)

(citations omitted).]

The 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 SEP that other communities with 

legacy landfills could not come within its scope. There are 

over six hundred legacy landfills across the State subject to

the Legacy Landfill Law. Considering the breadth of facilities 

the law governs, SEP's contention that it only applies to the 

landfill 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 of the SWMA for the 

Department to manage and regulate the State's management of 

solid waste. Classifying a particular type of landfill 

facility, which is common throughout the State, to be subject to 
27 A-5283-12T3

a particularized set of statutes and regulations serves the 

purpose of allowing the Department 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. The 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 law and the SWMA in general. 

Accordingly, we conclude that the Legacy Landfill Law does not 

constitute unlawful special legislation aimed at the landfill.

Because it is possible that, on remand, the parties 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.,
28 A-5283-12T3

217 N.J. 296 (2014) (remanding to the trial court certain factfinding 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 vacated and remanded for further 

proceedings consistent with this opinion. We do not retain 

jurisdiction.10 If either party is aggrieved by the trial 

court's determinations following a plenary hearing and factfinding, 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-finding 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 party 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 involving 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 

preferable that fresh appeals be filed, if in fact further 

appellate review is sought.