DEP affirms $868,000 in penalties to Fenimore Landfill owners

New Jersey Department of Environmental Protection Commissioner Bob Martin issued a formal final decision Thursday ordering the owners of Fenimore Landfill in Roxbury to pay $868,000 in penalties related to regulatory violations, some of which resulted in the release of potentially toxic levels hydrogen sulfide gas.

The penalties against Strategic Environmental Partners LLC, previously affirmed in November by Administrative Law Judge Michael Antoniewicz, include failure to control dust emissions and failure to control foul-smelling hydrogen sulfide emissions coming from the landfill. SEP purchased Fenimore in 2010 and obtained permission from the DEP to accept tipping fees for acceptable solid waste to pay for the construction of a solar farm on the previously dormant landfill.

But by late 2012, residents began to detect and report the odors leading to more than 2,500 complaints, public protests and ultimately legislation that permitted the DEP to seize control of the landfill in June 2013.

"Because of the odors, the citizens of Roxbury Township experienced, among other things, physical effects ranging from headaches to vomiting," Martin wrote. "In several instances, children and other guests could not remain on property owned by Roxbury citizens because of the odors."

SEE VIDEO: Fenimore Landfill Operator Indicted Feb. 3, 2016 http://dailyre.co/1SYvmUP

Martin's final decision also states that Richard Bernardi, in the role of primary operator of the landfill business, failed to provide inspectors with access to the site and records. Bernardi, 61, was indicted earlier this month by a state grand jury on multiple counts of theft, money laundering and other charges relating to the Fenimore disaster, which resulted in more than $10 million in cleanup costs. He is currently free on $150,000 bail with a 10 percent option.

READ MORE: Indictments leveled on Fenimore Landfill operator http://dailyre.co/1X43PR4 

Identifying Bernardi's wife, Marilyn Bernardi, as the sole member, officer and principal of SEP, Martin also discussed her liability, stating "While it might be argued that SEP was initially formed by Marilyn Bernardi for a legitimate business purpose, i.e., purchasing and closing the Fenimore Landfill to ultimately operate it as a solar farm, any legitimacy ceases there. Respondents’ fraudulent activity, much of which was committed by Marilyn Bernardi’s husband with her consent and knowledge, dominated the remainder of SEP’s involvement with the Fenimore Landfill."

Martin's final decision also states that Richard Bernardi, in the role of primary operator of the landfill business, failed to provide inspectors with access to the site and records.

"The fraudulent activities of the respondents, and particularly of Marilyn Bernardi, run the gamut," Martin wrote. "They pervade every aspect of SEP’s ownership and operation of the Fenimore Landfill."

VIDEO: Watch capping of Fenimore Landfill http://dailyre.co/VGqcRL 

He also stated in his final decision that Marilyn Bernardi created a required escrow account for tipping fees but "established a plan" with her husband to "not deposit a single tipping fee in it, thus depriving SEP of funds. He also claimed she wrote a check transferring $275,000 from SEP corporate assets to her personal pension plan.

Martin also wrote that Richard Bernardi executed a $950,000 mortgage agreement identifying himself as the “Managing Member” of SEP, and that Marilyn Bernardi personally guaranteed the mortgage and approved her husband's actions.

"Obviously we plan to appeal the decision," said SEP attorney Matthew Fredericks. "They are misinterpreting and misrepresenting the facts. We expect a better result from the appeals court."

SEE PHOTOS: On-site at Fenimore Landfill, August 2014 http://dailyre.co/VGdL8D 

Fredericks, speaking at Richard Bernardi's bail hearing in Morristown Superior Court, referred to the criminal charges against his client as "political retribution" on the part of the DEP, saying the department signed off on the Fenimore project after many meetings and only began retaliating against him when the project failed. He also noted that a state appeals court agreed with his argument last year that DEP overstepped its authority in seizing the landfill.

According to a DEP spokesperson, the Administrative Procedures Act requires that all decisions of an administrative law judge in contested cases be reviewed by the head of an agency — in this case, Martin —before those decisions are final.

Staff Writer William Westhoven: 973-917-9242; wwesthoven@Gannett.com.

SEE MORE FENIMORE COVERAGE: http://dailyre.co/fenimore