                     NOT FOR PUBLICATION WITHOUT THE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,                                APPROVED FOR PUBLICATION

     Appellant,                                  November 13, 2014

v.                                              APPELLATE DIVISION


NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

     Respondent.
__________________________

             Argued September 8, 2014 – Decided November 13, 2014

             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
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.




                                             2                                     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




                                             3                                    A-5283-12T3
power generating facility using an array of photovoltaic panels.

In October 2011, the Department 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 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

stratigraphy2 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).



                                   4                              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,




                                          5                                       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 long-

term   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.



                                            6                                       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,




                                                7                                         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.                            Thirty-

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 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.



                                             8                                    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.]




                                         9                             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).]




                                         10                            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. 13:1E-

125.4],     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



                                           11                               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.



                                           12                                    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




                                         13                              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. 13:1E-

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).            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




                                           14                              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




                                             15                                 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 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    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




                                           16                              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.




                                               17                                         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,




                                           18                                   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




                                             19                                  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




                                                  20                              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.



                                    21                            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.



                                        22                                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



                                          23                            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. 13:1D-

9.   All the provisions of the Legacy Landfill Law, which govern




                                             24                                 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.




                                   25                              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




                                             26                                      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.,




                                       27                                   A-5283-12T3
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 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   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-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.



                                           28                                  A-5283-12T3
