                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-0821-16T1

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

     Petitioner-Respondent,

v.

DGRT STABLES, LLC, d/b/a
DGRT SERVICES, MICHAEL
D'ANGELO and DERRICK
GREENBERG,

     Respondents-Appellants.
_______________________________

         Submitted January 10, 2018 – Decided July 16, 2018

         Before Judges Fuentes and Suter.

         On appeal from the New Jersey Department of
         Environmental Protection.

         Starkey, Kelly, Kenneally, Cunningham &
         Turnbach, attorneys for appellants (Alton D.
         Kenny, of counsel and on the brief; Clifford
         P. Yannone, on the brief).

         Christopher S. Porrino, Attorney General,
         attorney for respondent (Jason W. Rockwell,
         Assistant Attorney General, of counsel;
         Elspeth Faiman Hans, Deputy Attorney General,
         on the brief).

PER CURIAM
     Defendants DGRT Stables, LLC, Michael D'Angelo and Derrick

Greenberg appeal from the September 30, 2016 Final Decision by the

Commissioner   of   the   New   Jersey    Department   of    Environmental

Protection (DEP).    The Final Decision found defendants violated

the Solid Waste Management Act (SWMA), N.J.S.A 13:1E-1 to -227,

for failing to obtain a license to transfer and dispose of solid

waste in violation of N.J.A.C. 7:26-16.3(a), and violated the

Solid Waste Utility Control Act (SWUCA), N.J.S.A. 48:13A-1 to -13

for failing to obtain a certificate of public convenience and

necessity, in violation of N.J.A.C. 7:26H-1.6(a).           Defendants were

fined a total of $100,000, consisting of $50,000 for violation of

N.J.A.C. 7:26-16.3(a) and $50,000 as an economic penalty imposed

pursuant to N.J.A.C. 7:26-5.9.          Because the Final Decision was

entered following DEP's motion for summary disposition, our review

is de novo.    L.A. v. Bd. of Educ. of City of Trenton, 221 N.J.

192, 204 (2015).    We affirm the Commissioner's decision.            There

was ample support in the record that defendants violated the Acts

and for the penalties imposed by the Commissioner, which penalties

were not arbitrary, capricious or unreasonable.

                                  I.

     Defendant DGRT was a New Jersey limited liability company

(LLC) that initially was in the business of hauling hay and straw

for racetrack stables and later began to haul dirt.               It is no

                                    2                               A-0821-16T1
longer in business. Defendant Derrick Greenberg was its president,

owner, and a managing member.   Defendant Michael D'Angelo was "a

salesman, promoter and day to day operator of [DGRT]."   He was its

consultant, but not a payroll employee or member of the limited

liability company.   Greenberg and D'Angelo communicated daily.

     In April 2013, D'Angelo signed a handwritten contract, on

behalf of DGRT, with VisionStream LLC (VisionStream) to supply

2000 loads of clean fill between May 1 and June 30, 2013, to a

location in Old Bridge where VisionStream was constructing a mixed-

use commercial and residential development.   The fill was intended

to raise the grade of the property.   Under the contract, D'Angelo

agreed that the "[m]aterial brought to the site will need to pass

the material compatibilities and Old Bridge Township requirements

and NJ residential . . . and USEPA requirements."

     In May 2013, D'Angelo signed a contract with Michael Mecca

(Mecca) where D'Angelo agreed, for $250 per load, that DGRT would

remove recycled concrete aggregate fill that was commingled with

asphalt millings from a site in Jersey City where an old warehouse

had been demolished sometime between 1997 and 2002.      The Mecca

contract confirmed that D'Angelo was given a July 24, 2012 soil

analysis from Restoration & Conservation, LLC,1   "outlining" that


1
  The only July 24, 2012 soil analysis in the record is from
Analytical Chemists.

                                3                           A-0821-16T1
the materials "meet[] New Jersey commercial criteria and another

report showing minor exceedances in the NJ residential criteria."

By signing the contract, D'Angelo expressly "acknowledge[d] and

accept[ed] all New Jersey environmental rules, regulations and

specifications associated with the disposal location" where he was

taking these materials.

     A representative of VisionStream wrote to D'Angelo advising

DGRT that the data provided by Mecca "meet[s] the requirements for

our site" but requested that D'Angelo "resend" the analytical

reports for their "official records. . . . to make sure that we

keep the correct reports, as we had so many reports while we were

negotiating and don't want to confuse the reports."

     When DEP commenced its investigation, VisionStream provided

DEP with a copy of soil analyses by Analytical Chemists.           That

report, dated July 24, 2012, analyzed samples of the material from

the Mecca site.    One of those samples showed the presence of

benzo(a)pyrene in the amount of .279 mg/kg, which exceeded the

direct   contact   soil   remediation    standard   of   0.2    mg/kg.

Benzo(a)pyrene is a known carcinogen.2




2
 The ingestion/dermal contact level for benzo(a)pyrene is actually
lower (0.06mg/kg), but 0.2 mg/kg is used because DEP advised that
this is the "lowest level that can practicably be detected and
quantified by testing laboratories."

                                 4                             A-0821-16T1
       Greenberg and D'Angelo claimed that they did not review the

soil    analysis   report   provided       by   Mecca   "but   relied   on   the

representations presented in the Mecca [l]etter and VisionStream

[l]etter."

       DGRT contracted with subcontractors to excavate and load the

material at the Mecca site and with trucking firms to haul the

materials to the VisionStream site in Old Bridge.              Between May and

July 2013, 895 loads were delivered to the VisionStream site.

Mecca paid DGRT $223,650 to remove the materials from the Mecca

site.    VisionStream paid DGRT $40,220 to deliver the materials to

Old Bridge.   DGRT paid its subcontractors $20 per load to excavate

and load the materials and $200 per load to transport them.

       Following its investigation, DEP issued a Notice of Civil

Administrative Penalty Assessment (NOCAPA) to DGRT and D'Angelo

in February 2015, for the unlicensed transportation of solid waste

in violation of the SWMA.      The NOCAPA was amended on October 16,

2015, to include Greenberg and an economic penalty.               The amended

NOCAPA alleged that defendants engaged in the brokering of solid

waste without an A-901 license, as required by N.J.A.C. 7:26-

16.3(a), and then by accepting and selling solid waste obtained

from the Mecca site to be used as fill at the VisionStream site,

which was being developed for commercial and residential use.                DEP

alleged that defendants failed to hold certificates of public

                                       5                                A-0821-16T1
convenience and necessity as required by N.J.A.C. 7:26H-1.6(a).

The amended NOCAPA imposed a $100,000 civil administrative penalty

which consisted of a $50,000 penalty against all the parties for

violation of N.J.A.C. 7:26-16.3(a) and an economic benefit penalty

of $50,000, also against all parties, in accordance with N.J.A.C.

7:26-5.9.

     Defendants requested an administrative hearing.               The case was

transferred     to   the    Office   of   Administrative     Law   (OAL)     as   a

contested case.      DEP filed a motion for summary decision in March

2016.     See N.J.A.C. 1:1-12.5(a).            It contended there were no

disputed issues of fact requiring a hearing.               An Administrative

Law Judge (ALJ) decided the motion in DEP's favor, issuing her

Initial Decision on May 20, 2016.             Defendants filed exceptions.

The Commissioner of DEP issued a Final Decision on September 30,

2016, that adopted the Initial Decision, finding that DEP was

"entitled to summary decision as a matter of law against DGRT, and

against Greenberg and D'Angelo, individually."

     In   his   Final      Decision,   the    Commissioner   found    that    the

materials transported from the Mecca site and deposited at the

VisionStream site constituted solid waste under N.J.A.C. 7:26-1.6,

whether or not unsafe levels of benzo(a)pyrene were present in

those materials.      Defendants did not submit any evidence to refute

the soil tests that showed the presence of benzo(a)pyrene at a

                                          6                             A-0821-16T1
level   exceeding   DEP    standards.   The   letters   from   Mecca   and

VisionStream that defendants relied on in their defense made

reference to testing that showed an excess level of benzo(a)pyrene.

As such, defendants had not shown there were any disputed factual

issues about the transportation of solid waste without a license.

     The Final Decision held Greenberg individually liable as a

"responsible corporate officer" because he was "aware of key

aspects of DGRT's business with Mecca and VisionStream" and, as

president and sole owner of DGRT, "would have been in a position

to prevent the violations of the SWMA and rules."              The Final

Decision also imposed individual liability upon D'Angelo, as a

"person" under N.J.A.C. 7:26-1.4 who was required to have a license

to engage in the solid waste industry, N.J.A.C. 7:26-16.3(a),

because he was "the consultant and manager responsible for DGRT's

daily operations."        He was a "key decision maker" about DGRT's

operations along with Greenberg and "played an integral role in

the transport of the Mecca site material without a solid waste

license."

     The Final Decision imposed penalties, finding that violation

of N.J.A.C. 7:26-16.3 was major and the degree of conduct of the

defendants was also major.        See N.J.A.C. 7:26-5.5(g)(1).         The

Commissioner applied DEP's civil administrative penalty matrix and

then adjusted the penalty to the maximum amount, agreeing with the

                                    7                             A-0821-16T1
ALJ that defendant's actions "created a risk to the public by

contaminating a future residential site with a carcinogen."               The

Commissioner also imposed a $50,000 economic penalty, finding that

DEP reasonably calculated defendants' economic benefit to be at

$66,970 "based on the costs and profits per load transported

multiplied by the number of loads as supported by certifications

and   documentation."     Although      defendants   objected   to     DEP's

calculations,   they    did   not    "supply   any   certifications         or

affidavits to support their claims."       Therefore, the Commissioner

did not find any disputed issues of fact related to the economic

penalty.

      On appeal, defendants contend that there were disputed issues

of fact that warranted a hearing at the OAL.         They argue they did

not violate the SWMA because they relied on the letters from Mecca

and VisionStream that the soil was acceptable. They did not intend

to transport "solid waste" under the Act.        For the first time on

appeal, defendants contend that they should not have been held

individually liable for any violation. Even if there were a

violation of the SWMA, defendants assert any violation was minor,

warranting a lesser civil penalty, and that the economic penalty

did not reflect their economic benefit.




                                    8                                A-0821-16T1
                                  II.

       We review de novo an agency's summary decision because it is

a legal determination. L.A., 221 N.J. at 204.                The standard

governing    agency    determinations    under    N.J.A.C.   1:1-12.5     is

"substantially the same as that governing a motion under Rule

4:46-2 for summary judgment in civil litigation."              Id. at 203

(quoting Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106,

121-22 (App. Div. 1995)).        Summary judgment must be granted if

"the   pleadings,     depositions,   answers     to   interrogatories   and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a

matter of law."       Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburg, 224 N.J. 189, 199 (2016) (quoting R. 4:46-

2(c)).    We are not "bound by [an] agency's interpretation of a

statute or its determination of a strictly legal issue."             L.A.,

221 N.J. at 204 (alteration in original) (quoting Div. of Youth &

Family Servs. v. T.B., 207 N.J. 294, 302 (2011)).

       We agree with the Commissioner that there were no genuine

issues of fact here that precluded summary decision.          The case did

not present "competent evidentiary materials" that would permit a

"rational factfinder" to resolve the issues in defendants' favor



                                     9                             A-0821-16T1
or require a plenary haring.        See Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

     The SWMA regulates the collection, transportation, storage

and disposal of solid waste in New Jersey.           N.J.S.A. 13:1E-2.      The

purpose was to "[e]stablish a statutory framework within which all

solid waste collection, disposal and utilization activity in this

State   may   be    coordinated."         N.J.S.A.   13:1E-2(b)(1).         The

Legislature found:

          That    the    collection,    transportation,
          treatment, storage, and disposal of solid
          waste are critical components of the economic
          structure of this State and, when properly
          controlled and regulated, make substantial
          contributions to the general welfare, health
          and   prosperity  of   the   State  and   its
          inhabitants by minimizing the serious health
          and environmental threats inherent in the
          management of these wastes;

          That the regulatory provisions of this act are
          designed to extend strict State regulation to
          those persons involved in the operations of
          these licensed activities so as to foster and
          justify the public confidence and trust in the
          credibility and integrity of the conduct of
          these activities.

          [N.J.S.A. 13:1E-126.]

     Under    the   SWMA   regulations,     "No   person   shall   engage    or

continue to engage in the collection, transportation, treatment,

storage, transfer or disposal of solid waste or hazardous waste

in this State without a license or without complying with all the


                                     10                               A-0821-16T1
provisions of N.J.S.A. 13:1E-126 et seq[.]"                       N.J.A.C. 7:26-16.3.

Further N.J.A.C. 7:26H-1.6(a) provides, "No person shall engage

in the business of solid waste collection or solid waste disposal

as defined in N.J.S.A. 48:13A-3 unless such person is the holder

of a certificate of public convenience and necessity issued by the

Department."

       Here,    defendants    do    not    dispute         that   at   the   time   they

contracted for the removal and transportation of materials from

the Mecca site to the VisionStream site that none of the defendants

held   any     license   or   a    certificate        of    public     convenience     or

necessity.

       There was no factual issue on this record that what was

transported was solid waste within the meaning of the SWMA.                          The

Act defines solid waste generally as "garbage, refuse, and other

discarded materials resulting from industrial, commercial and

agricultural      operations,        and       from    domestic        and   community

activities."       N.J.S.A. 13:1E-3.             N.J.A.C. 7:26-1.6(a) defines

solid waste as "any garbage, refuse, sludge . . . or any other

waste material . . . ."3          N.J.A.C. 7:26-1.6(b) defines "other waste

material" as:


3
  The regulation was amended in 2017 to expressly include within
the definition of solid waste, "processed or unprocessed mixed
construction and demolition debris, including, but not limited to,


                                          11                                    A-0821-16T1
           any solid . . . including, but not limited to
           spent   material  .   .   .  resulting   from
           industrial, commercial . . . operations. . .
           or any other material which has served or can
           no longer serve its original intended use,
           which:

           (1) [i]s discarded        or    intended   to   be
           discarded; or

                . . . .

           (4) [i]s applied to the land . . . or

           (5) [i]s recycled.

A material also is solid waste under N.J.A.C. 7:26-1.6(c) if "it

is 'disposed of' by being discharged, deposited, injected, dumped,

spilled, leaked or placed into or on any land or water so that

such material or any constituent thereof may enter the environment

or be emitted into the air or discharged into ground or surface

waters."

     Defendants contend that the letters they received from Mecca

and VisionStream created an issue of fact about whether the

materials constituted solid waste.        However, there was no dispute

that the materials transported resulted from the demolition and

removal of a warehouse.   By any of the definitions cited, these



wallboard, plastic, wood or metal,         are solid wastes. 48 N.J.R.
1526(a)(1). Prior to this, the            term "clean fill" excluded
"processed or unprocessed mixed           construction and demolition
debris, including, but not limited        to, wallboard, plastic, wood
or metal." Ibid.

                                12                              A-0821-16T1
materials   constitute      solid    waste    as   discarded   materials     from

industrial or commercial operations that are deposited on or into

the land.

    Defendants       urge    that    what    they     transported     "was   only

recognizable as stone, dirt and concrete."                 They argue a fact

issue exists about whether this was clean fill as previously

defined in the regulations, meaning,

            an      uncontaminated      nonwater-soluble,
            nondecomposable, inert solid such as rock,
            soil, gravel, concrete, glass and/or clay or
            ceramic products. Clean fill shall not mean
            processed or unprocessed mixed construction
            and demolition debris, including, but not
            limited to, wallboard, plastic, wood or metal.
            The non-water soluble, non decomposable inert
            products generated from an approved Class B
            recycling facility are considered clean fill

            [48 N.J.R. 1526(a)(1).]

They base their argument on the Mecca and VisionStream letters

that said the soil sample met commercial standards and met the

requirement for the site.

    However, these letters never created a genuine issue that the

materials transported did not have benzo(a)pyrene present at a

level    exceeding      standards.    Both     letters   cited   to    the   soil

analysis.       The Mecca letter cited to a July 24, 2014 test that

showed    the    soil    exceeded    New     Jersey    residential     criteria.

VisionStream actually supplied DEP with copies of the Analytical


                                      13                                 A-0821-16T1
Chemists report that showed benzo(a)pyrene present at an excess

level.    Defendants did not provide any testing that refuted these

findings.    We are to consider all "competent evidential material"

on summary decision.       Brill, 142 N.J. at 540.        There must be a

genuine issue of material fact to defeat the motion, not an

inference lacking any proof.

     Defendants    argue   that   they    did   not   intend   to   commit    a

violation, but the SWMA does not require that DEP prove a violation

was knowingly or intentionally committed.         See State v. Lewis, 215

N.J. Super. 564, 572 (App. Div. 1987) (providing that the SWMA did

not "require a finding of intent to violate the Act before [its]

remedies may be invoked").

     The record supported the Commissioner's summary decision.

Defendants arranged for the removal and transportation of solid

waste without the requisite license which violated the SWMA.                The

materials transported contained benzo(a)pyrene at levels exceeding

DEP's standards.    Defendants submitted no evidence that contested

the analysis of the soil sample.          By failing to do so, they did

not prove there was any genuine issue of material fact that would

have required a hearing.

     We   reject   Greenberg's    and    D'Angelo's   argument      that   they

should not be held individually responsible for violating the

SWMA. Greenberg was the owner and managing member of DGRT.             He had

                                   14                                 A-0821-16T1
daily contact with D'Angelo.              He was in a position to control the

company and prevent it from transporting the materials or obtain

a license to do so.            We have long held that an officer who "had

actual responsibility for the condition resulting in the violation

or [was] in a position to prevent the occurrence of the violation

but failed to do so" can be held responsible for the condition

that caused the violation.              Dep't of Envtl. Prot. v. Standard Tank

Cleaning Corp., 284 N.J. Super. 381, 403 (App. Div. 1995).

      D'Angelo      was       individually       responsible      under       the   SWMA

regulations        as     a     "person"        engaged     in    the     collection,

transportation, transfer or disposal of solid waste.                           N.J.A.C.

7:26-16.3.       Although not an officer or managing member of DGRT,

he was a key decision maker.             He signed the contracts and received

the analyses of the soil.           He was in daily contact with Greenberg.

      Defendants contend that the Commissioner erred in assessing

the   administrative          and   economic      penalties.      The    Commissioner

assessed    an    administrative          penalty   of    $50,000       for   violating

N.J.A.C. 7:26-16.3(a) and imposed a $50,000 economic penalty under

N.J.A.C. 7:26-5.9.

       We   will    not       reverse    the    Commissioner's     order      assessing

penalties     unless      we     find    the     decision    to   be     "'arbitrary,

capricious, or unreasonable, or . . . not supported by substantial

credible evidence in the record as a whole.'"                     Kadonsky v. Lee,

                                           15                                   A-0821-16T1
452   N.J.   Super.   198,   202    (App.    Div.   2017)    (quoting    In    re

Stallworth,    208    N.J.   182,   194   (2011)).      We    "defer    to    the

specialized or technical expertise of the agency charged with

administration of a regulatory system."              K.K. v. Div. of Med.

Assistance & Health Servs., 453 N.J. Super. 157, 160 (App. Div.

2018) (quoting In re Virtua-West Jersey Hosp., 194 N.J. 413, 422

(2008)).

      The Commissioner imposed the $50,000 civil penalty based on

his finding that defendants committed a major violation of the

SWMA and that the degree of their conduct was major.               Using the

DEP's penalty matrix, he determined that the mid-range of the

penalty was $45,000.     See N.J.A.C. 7:26-5.5.       He enhanced the mid-

range to the maximum penalty of $50,000.                There was nothing

arbitrary,    capricious      or    unreasonable      about    this.          The

commissioner applied the matrix.            We agree with the Commissioner

that the violation "created the potential for serious harm to

prospective residents of and visitors to the VisionStream site and

to the environment."         This undermined the purpose of the SWMA

licensing scheme.      Defendants' degree of conduct also was major

as defined by the regulations4 because the Mecca letter advised



4
  "Major conduct shall include any intentional, deliberate,
purposeful, knowing or willful act or omission by the violator."
N.J.A.C. 7:26-5.5(h)(1).

                                     16                                 A-0821-16T1
them that the soil testing exceeded residential standards and they

proceeded with the contracts anyway.

     The Commissioner also imposed a civil administrative penalty

for economic benefit.          See N.J.A.C. 7:26-5.9 ("The Department may,

in addition to any other civil administrative penalty assessed

pursuant to this subchapter, include as a civil administrative

penalty the economic benefit (in dollars) which the violator has

realized   as    a    result      of    not    complying       with,   or   by   delaying

compliance with, the requirements of the Act . . . .").                                 The

Commissioner      calculated           that    defendants'       profits     from     this

transportation was $66,970.              This was calculated after taking into

consideration the number of loads of materials, what DGRT charged

Mecca   and     VisionStream,          the     amount    still     owed     to   them    by

VisionStream,        and   what    DGRT       had   to   pay    its    sub-contractors.

Defendants take issue with the amounts they say they received from

Mecca   and     VisionStream.             However,       they    never      submitted     a

certification or documentary evidence to support their claim.                            In

contrast, the Commissioner relied on contracts, cancelled checks,

and other documents supplied by defendants in discovery in making

his calculation.           There was nothing arbitrary, capricious or

unreasonable about the Commissioner's analysis that assessed the

economic penalty, which was fully supported by the record.

     Affirmed.

                                              17                                  A-0821-16T1
