                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1150-16T1

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
SITE REMEDIATION COMPLIANCE
AND ENFORCEMENT,

           Petitioner-Respondent,

v.

RARITAN SHOPPING CENTER, LP,

     Respondent-Appellant.
________________________________

                    Argued May 2, 2018 – Decided October 17, 2018

                    Before Judges Fuentes, Koblitz and Suter.

                    On appeal from the New Jersey Department of
                    Environmental Protection.

                    Lawrence S. Berger argued the cause for appellant
                    (Berger & Bornstein, LLC, attorneys; Lawrence S.
                    Berger, on the brief).

                    Elspeth L. Faiman Hans, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Jason W. Rockwell,
            Assistant Attorney General, of counsel; Elspeth L.
            Faiman Hans, on the brief).

      The opinion of the court was delivered by

SUTER, J.A.D.

      Defendant Raritan Shopping Center, LP (Raritan) appeals the October 6,

2016 Final Decision by the Commissioner of the New Jersey Department of

Environmental Protection (Final Decision) that granted summary decision to

petitioner Department of Environmental Protection (DEP) and affirmed its

January 13, 2014 Administrative Order and Notice of Civil Administrative

Penalty Assessment (AONOCAPA), that found Raritan violated certain

environmental remediation statutes and regulations and imposed $66,200 in

administrative penalties. Because the Final Decision was entered following the

parties' motions for summary disposition, our review on the legal issue is de

novo. L.A. v. Bd. of Educ. of City of Trenton, 221 N.J. 192, 204 (2015). We

affirm the Final Decision based on our review of the uncontested facts, statutes

and case law and determine that the penalties imposed do not represent an abuse

of discretion.

                                     I

      Raritan owns a shopping center in the Borough of Raritan (Borough). It

was built on land that from 1959 to 1979, was operated by the Borough as a

                                                                        A-1150-16T1
                                         2
municipal landfill. The landfill closed in 1979. The property was sold in the

mid-1980's to Raritan Center Realty Associates and developed by Raritan Mall

Associates.1 Raritan Associates hired a consultant to evaluate the contents of

the landfill.    The landfill was capped with silty soil, a gravel bed, plastic

membrane and protective clay. Ground water monitoring wells were installed

as well as a degasification system. DEP's approval under the Environmental

Cleanup Responsibility Act (ECRA), N.J.S.A. 13:1K-1 to -42,2 was obtained to

transfer the property. The Borough agreed with DEP to conduct monitoring of

the ground water and treatment after 1991. Sampling at various times showed

volatile organic compounds and heavy metals exceeding the ground water

permit that may have come from offsite or natural sources.         Raritan Mall

Associates built a shopping center on the site.

         Raritan purchased the shopping center in March 1993. Prior to purchase,

it hired HTS Environmental Group to conduct environmental testing at the

property. HTS's testing reported the presence of tetrachloroethylene above

federal drinking water standards. However, it noted that the water in the area



1
    These entities are not related to Raritan.
2
 ECRA was replaced by the Industrial Site Recovery Act (ISRA) in 1993. N.J.S.A.
13:1K-6.
                                                                        A-1150-16T1
                                           3
"is not used for consumptive purposes" and that "low levels of chemicals of this

kind are expected in the groundwater in the vicinity of a closed municipal

landfill." HTS recommended that "any additional well testing required by [DEP]

be completed in accordance with their instructions or requests." HTS gave its

opinion that the property "represents a low environmental risk scenario

contingent upon completion of the aforementioned items."

      In 2003, a prospective purchaser of the property hired an environmental

consulting firm to conduct ground water testing and discovered a "hot spot" of

contamination containing levels of benzene, toluene, ethylbenzene, xylenes

(BTEX), chlorobenzene, TCE, PCE, dichloroethene (DCE), and vinyl chloride

above DEP groundwater-quality standards. Raritan hired Enviro-Sciences, Inc.

(ESI) to delineate the extent of the contaminated area. With DEP's approval,

Raritan excavated the indicated area that revealed three steel drums, containing

"yellow sandy soil of an unknown composition." Raritan disposed of seventeen

hundred pounds of hazardous solid waste contaminated with lead and TCE.

      DEP and Raritan signed a memorandum of agreement in February 2004,

where Raritan acknowledged that TCE was present at the site, but had been

removed through soil excavation. Raritan claimed that "[a]ll contaminants

found at the site [were] related to the former landfill operations."            It


                                                                        A-1150-16T1
                                       4
acknowledged that "[b]ased on past investigations, both soil and groundwater

have been slightly impacted by benzene, toluene, ethylbenzene, and total

xylenes, and/or chlorobenzene." The "hot spot" impacted soil and groundwater

with TCE, however, "after the impacted soils were excavated," Raritan claimed,

"[a] continuing [TCE] source no longer remain[ed] on-site." Raritan agreed to

submit a Remedial Investigation Report/Remedial Action Report (RIR/RAR) to

DEP.

       ESI submitted the RIR/RAR report for Raritan in September 2004. It

requested that DEP issue a "No Further Action" letter for the site, but with a

"Classification Exception Area" (CEA)3 to restrict ground water usage because

there still were "low" levels of benzene present at the site. DEP rejected this

request in March 2007, issuing a Notice of Deficiency, because it claimed ESI's

ground water sampling methodology was flawed and the proposed CEA did not

address chlorinated compounds that previously had been detected at the site.

DEP requested a remedial investigation workplan in sixty days.         Raritan




3
 DEP may establish a CEA when it determines "that constituent standards for a
given classification are not being met or will not be met in a localized area."
N.J.A.C. 7:9C-1.6(a). Within that area, DEP shall "define appropriate
designated uses." N.J.A.C. 7:9C-1.6(b).
                                                                       A-1150-16T1
                                      5
responded in June 2007 by referring any ground water issues to the Borough and

did not submit a workplan.

      It was not until 2011 that DEP again addressed the RIR/RAR deficiencies

with Raritan. DEP advised Raritan by letters of its obligations under the Site

Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 to -29, to retain a licensed

site remediation professional (LSRP), complete the remediation within

mandatory timeframes, complete an initial receptor evaluation and conduct a

proper site evaluation. In December of 2012, Raritan had still not complied, and

DEP advised the matter was transferred to enforcement and that it would issue

an administrative order with penalties.

      DEP issued the AONOCAPA on January 13, 2014. In it, DEP found that

"on August 21, 2003, [Raritan] conducted ground water sampling and reported

[TCE], cis-1, 2-dichloroethene, vinyl chloride, methylene chloride, benzene,

and toluene above the Ground Water Quality Standards (GWQS) at

concentrations of 120,000 parts per billion (ppb), 98,000 ppb, and 4,500 ppb,

2,000 ppb, 7.3 ppb, and 1,100 ppb, respectively."         Because these were

"hazardous substances pursuant to the Spill Compensation and Control Act




                                                                        A-1150-16T1
                                          6
[Spill Act], N.J.S.A. 58:10-23.11b," Raritan was responsible under the Spill Act

for remediation.4

      The AONOCAPA alleged Raritan violated applicable regulations by (1)

failing to conduct remediation in accordance with N.J.A.C. 7:26C-2.3(a)(3); (2)

"fail[ing] to hire [an LSRP] upon the occurrence of one of the events listed in

N.J.A.C. 7:26C-2.2(a), and to provide the required information to [DEP] within

[forty-five] days as required;" (3) "fail[ing] to submit an initial receptor

evaluation within the required timeframe" in accordance with N.J.A.C. 7:26E-

1.12(c); and (4) "fail[ing] to pay fees, oversight costs, and [to] submit [the]

Annual Remediation Fee Reporting Form."5 DEP ordered Raritan to cure these

violations. The AONOCAPA assessed an aggregate civil administrative penalty

against Raritan of $66,200.6


4
 This reference is to the Spill Compensation and Control Act, N.J.S.A. 58:10 -
23.11 to -23.24.
5
  N.J.A.C. 7:26C-2.3(a)(4) requires payment of "all applicable fees and
oversight costs as required." N.J.A.C. 7:26C-4.3(a)(4) requires submission of
"the annual remediation fee, and the appropriate form."
6
  This included $15,000 for failure to conduct remediation in accordance with
N.J.A.C. 7:26C-2.3(a)(3); $15,000 for failure to hire an LSRP pursuant to
N.J.A.C. 7:26C-2.3(a)(1); $25,000 for failure to submit an initial receptor
evaluation within the required timeframe in accordance with N.J.A.C. 7:26E-
1.12(c); and $11,200 for failure to pay fees, oversight costs in accordance with
N.J.A.C. 7:26C-2.3(a)(4).
                                                                        A-1150-16T1
                                       7
      Raritan requested a hearing and the case was transmitted to the Office of

Administrative Law as contested.        Following cross-motions for summary

disposition, the administrative law judge (ALJ) issued an Initial Decision in

favor of DEP, finding that "Raritan [was] liable for violations of the Spill Act,

the Brownfield Act, the SRRA, and the regulations promulgated under those

statutes as a person who 'is in any way responsible for any hazardous

substance[,]'" not because it had discharged a hazardous substance, but because

it was a current owner of a contaminated site. 7 The ALJ found that Raritan was

responsible for remediation because it was a subsequent owner of the real

property where the discharge occurred prior to the filing of a final remediation

document8 with [DEP]. Further, "DEP [was] not required to prove the presence


7
  The references here are to the Brownfield and Contaminated Site Remediation Act
(Brownfield Act), N.J.S.A. 58:10B-1 to -31, and the Site Remediation Reform Act
(SRRA), N.J.S.A. 58:10C-1 to -29. The regulations referenced are the Administrative
Requirements for the Remediation of Contaminated Sites (ARRCS), N.J.A.C. 7:26C-1.1
to -16.3 and Technical Requirements for Site Remediation (Tech Rules), N.J.A.C.
7:26E-1.1 to -5.8. The ALJ's decision quoted N.J.S.A. 58:10-23.11g(c)(1).
8
 A final remediation document is "a no further action letter or a response action
outcome." N.J.A.C. 7:26C-1.3. A no further action letter consists of a written
determination by DEP that either there are no contaminants remaining at the site
or that the contaminants "have been remediated in accordance with applicable
remediation statutes, rules, guidance and all applicable permits and
authorizations have been obtained." Ibid. A response action outcome is "a
written determination by a [LSRP] that the site was remediated in accordance
with all applicable statutes, rules and guidance . . . ." Ibid.
                                                                           A-1150-16T1
                                        8
of hazardous substances as of May 7, 2009 or May 7, 2012, in order to hold

Raritan responsible" and that Raritan's failure to file "a final remediation

document . . . and meet the requirements of N.J.S.A. 58:10-1.3(b), N.J.A.C.

7:26C-2.3, and N.J.A.C. 7:26E-1.2."

      On October 6, 2016, the Commissioner issued the Final Decision that

adopted the Initial Decision, finding "the ALJ correctly concluded that Raritan

is liable for violations of the Spill Act, the Brownfield Act, SRRA, and the rules

governing the remediation of contaminated sites." The Commissioner found

that Raritan was a responsible party under the Spill Act as "the current owner of

a property on which hazardous substances have been discharged and for which

a final remediation document has not been filed." As such, it was "strictly,

jointly and severally liable under the Spill Act and must complete remediation

in accordance with the Brownfield Act and SRRA . . . regardless of the source

of the discharge, Raritan's fault in causing the discharge, or the assumption of

ground water monitoring responsibilities by the Borough." The Commissioner

found that Raritan was not an innocent purchaser under the Spill Act because

Raritan could not show "that at the time of acquisition, it 'did not know and had

no reason to know that any hazardous substance had been discharged at the real

property,'" as required by N.J.S.A. 58:10-23.11g(d)(5). Further, the case of


                                                                          A-1150-16T1
                                        9
Dep't of Envtl. Prot. v. J.T. Baker Co., 234 N.J. Super. 234 (Ch. Div. 1989),

aff'd per curiam, 246 N.J. Super. 224 (App. Div. 1991), citied by Raritan, was

inapplicable, because "Raritan is liable not as a discharger but rather as the

informed purchaser and owner of contaminated property which is in need of

remediation." The Commissioner concluded the ARRCS regulations did apply

because "the necessary remediation is of ground water contamination, not the

landfill itself."   The Final Decision affirmed DEP's administrative penalty

against Raritan, assessed under N.J.A.C. 7:26C-9.5.         It ordered Raritan to

conduct the remediation, hire an LSRP, submit an initial receptor evaluation,

pay fees and costs and pay the administrative penalty.

      On appeal, Raritan contends that DEP cannot impose penalties under the

Spill Act for discharges prior to its effective date in 1977, that Raritan did not

discharge hazardous materials and even if there were a discharge, DEP did not

prove that it occurred after 1977. Raritan argues that the regulations relied on

by DEP are not applicable because this is a closed landfill. In addition, it asserts

DEP did not prove the presence of any contaminants at the site during relevant

periods. Raritan claims it is not liable for clean up or removal costs under the

Spill Act or administrative penalties.




                                                                            A-1150-16T1
                                         10
                                         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

Pittsburgh, 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 Dep't of Children

& Familes, N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302

(2011)).

      Raritan contends DEP cannot impose penalties or other relief under the

Spill Act for discharges that occurred prior to its 1977 effective date. It further

argues that there was no "discharge" with which Raritan could be charged.


                                                                             A-1150-16T1
                                        11
       Under the Spill Act, "any person who has discharged a hazardous

substance, or is in any way responsible for any hazardous substance, shall be

strictly liable, jointly and severally, without regard to fault, for all cleanup and

removal costs no matter by whom incurred." N.J.S.A. 58:10-23.11g(c)(1). "The

strict liability imposed has been held to be broad in scope." T & E Ind. v. Safety

Light Corp., 227 N.J. Super. 228, 244 (App. Div. 1988) (citations omitted). "The

phrase [in any way responsible] must be broadly construed to encompass either

ownership or control over the property at the time of the damaging discharge, or

control over the hazardous substance that caused the contamination." N.J. Schs.

Dev. Auth. v. Marcantuone, 428 N.J. Super. 546, 559 (App. Div. 2012). See

N.J. Dep't of Envtl. Prot. v. Dimant, 212 N.J. 153, 177 (2012).

      Liability may exist "for an owner who purchased previously contaminated

land and failed to conduct due diligence prior to purchase . . . ." Marcantuone,

428 N.J. Super. at 561. DEP's regulations provide that a person "in any way

responsible" under the Spill Act (a responsible party) includes "[e]ach

subsequent owner of the real property where the discharge occurred prior to the

filing of a final remediation document with the Department." N.J.A.C. 7:26C -

1.4(a)(4). The regulations narrowly define a final remediation document as

either a "no further action letter or a response action outcome." N.J.A.C. 7:26C-


                                                                            A-1150-16T1
                                        12
1.3. An "innocent purchaser" who satisfies all the provisions of N.J.S.A. 58:10-

23.11g(d)(5) is not liable for cleanup and removal costs.

      A responsible person under the Spill Act is to remediate hazardous

substances that have been discharged in accord with requirements set forth in

the Brownfield Act, the SRRA, and the ARRCS and Tech Rules regulations.

The Legislature intended through enactment of the SRRA to "improve the

efficiency and speed with which environmental sites are remediated."         Des

Champs Labs. v. Martin, 427 N.J. Super. 84, 99 (App. Div. 2012). It created a

new "paradigm."       Ibid.   "[S]ites would be remediated without prior

Department[al] approval, but while still requiring the Department to maintain a

certain level of oversight." Ibid. (alteration in original) (quoting 43 N.J.R.

1077(a), 1078 (May 2, 2011)).

      Under the Brownfield Act, the Legislature set forth the requirements for

remediation by "a person in any way responsible for a hazardous substance"

under the Spill Act. N.J.S.A. 58:10B-1.3(a). These include hiring a LSRP,

establishing a remediation funding source, paying applicable fees and costs

required by DEP, allowing access to the site and to documents, and meeting

remediation timeframes. N.J.S.A. 58:10B-1.3(b). Relevant here, DEP required

Raritan to conduct remediation in accordance with N.J.A.C. 7:26C-2.3(a)(3); to


                                                                        A-1150-16T1
                                      13
hire an LSRP, N.J.A.C. 7:26C-2.3(a)(1); to submit an initial receptor evaluation,

N.J.A.C. 7:26E-1.12(c); to pay fees and oversight costs, N.J.A.C. 7:26C-

2.3(a)(4), and submit the Annual Remediation Fee Reporting Form, N.J.A.C.

7:26C-4.3(a)(4).

      We agree with the Final Decision that pursuant to N.J.A.C. 7:26-

1.4(a)(4)(ii), Raritan is a responsible party under the Spill Act as the owner of

property where a discharge occurred previously, no final remediation document

had been issued, and the party did not qualify as an innocent purchaser. Raritan

was required as a responsible party under the Spill Act to comply with the Spill

Act, the Brownfield Act, the SRRA and DEP's regulations. It did not comply.

It did not hire an LSRP, submit a receptor evaluation, conduct a further a site

investigation, or pay required fees. This triggered enforcement by DEP and the

assessed administrative penalty.

      DEP notified Raritan as early as March 2007 that there were deficiencies

in its RIR/RAR that required additional investigation and that it would not iss ue

a no-further action letter. These deficiencies were not cured by Raritan. Once

the SRRA was enacted in 2009, Raritan then had to conduct remediation in

accordance with it and the promulgated regulations.         The Commissioner's

conclusion that there was contamination on the site and that Raritan never


                                                                          A-1150-16T1
                                       14
received a final remediation document from DEP comports with the evidence.

As such, Raritan was responsible to remediate in accord with DEP's regulations

and, having failed to do so, was liable for enforcement and administrative

penalties.

      J.T. Baker Co., 234 N.J. Super. at 246-47 does not afford Raritan a safe

harbor. In Baker, DEP sought to impose penalties for discharges that occurred

before 1977. The Chancery judge concluded the Spill Act could not be applied

retroactively to penalize a company for discharges that occurred before the Act

became effective. However, Baker was decided before enactment of the SRRA,

which requires a responsible person under the Spill Act to remediate consistent

with the SRRA once a discharge has occurred. Raritan does not dispute a

discharge occurred affecting the ground water or that by May 2012, it had not

obtained a final remediation document from DEP.

      The "innocent purchaser" portion of the Spill Act as amended in 2001

makes it clear that Raritan is a responsible person. Under that section:

             [a] person, including an owner or operator of a major
             facility, who owns real property acquired prior to
             September 14, 1993 on which there has been a
             discharge, shall not be liable for cleanup and removal
             costs or for any other damages to the State or to any
             other person for the discharged hazardous substance
             pursuant to subsection c. of this section or pursuant to
             civil common law, if that person can establish by a

                                                                           A-1150-16T1
                                       15
           preponderance of the evidence that subparagraphs (a)
           through (d) apply:

           (a) the person acquired the real property after the
           discharge of that hazardous substance at the real
           property;

           (b) (i) at the time the person acquired the real property,
           the person did not know and had no reason to know that
           any hazardous substance had been discharged at the real
           property, or (ii) the person acquired the real property
           by devise or succession, except that any other funds or
           property received by that person from the deceased real
           property owner who discharged a hazardous substance
           or was in any way responsible for a hazardous
           substance, shall be made available to satisfy the
           requirements of P.L.1976, c.141;

           (c) the person did not discharge the hazardous
           substance, is not in any way responsible for the
           hazardous substance, and is not a corporate successor
           to the discharger or to any person in any way
           responsible for the hazardous substance or to anyone
           liable for cleanup and removal costs pursuant to this
           section;

           (d) the person gave notice of the discharge to the
           department upon actual discovery of that discharge.

           [N.J.S.A. 58:10-23.11g(d)(5).]

     All four elements of this section must be met to assert the innocent

purchaser defense under the Spill Act. See Marcantuone, 428 N.J. Super. at

549-50; 560-61.   Marcantuone involved post-contamination purchasers. We

said in Marcantuone that "liability may exist for an owner who purchased

                                                                        A-1150-16T1
                                      16
previously contaminated land and failed to conduct due diligence prior to

purchase." Id. at 561. This was based on the Legislature's 2001 amendment of

the Spill Act. We stated that:

            [u]nder N.J.S.A. 58:10-23.11g(d)(5), defendants must
            prove that, at the time they acquired the property in
            1985, they did not know or have reason to know that
            hazardous substances had been discharged on the
            property. To meet this defense, defendants must prove
            that they undertook, "at the time of acquisition, all
            appropriate inquiry on the previous ownership and uses
            of the property based upon generally accepted good and
            customary standards." N.J.S.A. 58:10-23.11g(d)(5)
            . . . . Thus, the trial court must first determine what the
            generally accepted good and customary standards were
            at the time defendants acquired title to the property.
            Defendants can then present evidence as to what pre-
            purchase efforts and investigation they undertook.
            Liability will depend upon whether defendants satisfied
            the prevailing standard as found by the court.

            [Marcantuone, 428 N.J. Super. at 560-61.]

      Here, Raritan could not establish that it "did not know and had no reason

to know that any hazardous substance had been discharged at the real property."

When it purchased the property in March 1993, the Borough was conducting

ongoing ground water monitoring that showed elevated levels of hazardous

substances. Its own consultant, HTS, found similar results. HTS recommended

that Raritan complete "any additional well testing required by NJDEP."

Therefore, Raritan knew or had reason to know that the ground water had

                                                                          A-1150-16T1
                                       17
contamination from hazardous substances.          It did not comply with DEP's

direction to resolve deficiencies in its RIF/RAF, which precluded it from

satisfying the innocent purchaser defense.

      We disagree with Raritan that because this site previously was a landfill,

the ARRCS and Tech Rules regulations do not apply. Raritan purchased a

shopping center; it did not own, operate or close a landfill.9 As such, the

exception in N.J.A.C. 7:26C-1.4(c)(2) about remediating a landfill did not apply

in this context. We also defer to the Commissioner's interpretation of DEP




9
  In its reply brief, Raritan argues that the Legacy Landfill Act, N.J.S.A. 13:1E -
125.1 to -125.9 is applicable here. Under that Act, an LSRP is not required.
Rather, N.J.S.A. 13:1E-125.7 provides that an owner of a legacy or closed
sanitary landfill facility "that undertakes any activity that includes the placement
or disposal of any material, regrading, compression, venting, construction or
installation of monitors or wells at the legacy landfill or a closed sanitary landfill
shall hire a New Jersey licensed professional engineer to perform the closure
and to oversee any other activities performed [there]." When the requi rement
for an LSRP was removed from the Act, the pertinent statement with Senate
Floor Amendments stated that one of the floor amendments was to "remove the
requirement that a [LSRP] oversee activity [at the closed landfill] that accepts
for placement additional waste or material and instead [only] require a N.J.
licensed professional engineer to oversee those activities." Senate Floor
Amendments, Statements to S. 2861 (June 20, 2013). Notably, this Act did not
expressly reference the remediation of hazardous material from, a discharge, or
a landfill underlying a commercial facility with human occupation. Thus, we
reject Raritan's argument that the Legacy Landfill Act was controlling in this
context.
                                                                             A-1150-16T1
                                        18
regulations. See In re Freshwater Wetlands General Permit No. 16, 379 N.J.

Super. 331, 341-42 (App. Div. 2005).

      Raritan contends the AONOCAPA should have been dismissed because

DEP did not establish that there existed contaminants on the site either in May

2009, when the SRRA was enacted, or May 2012, when the SRRA became

effective.   Raritan argues the discharge was fully remediated when ESI

excavated the "hot spot." However, it was not disputed that Raritan did not

receive any final remediation documents from DEP. Thus, after May 9, 2012,

Raritan was required to remediate consistent with the SRRA and regulations

because it did not have a final remediation document from DEP. N.J.A.C.

7:26C-1.4(a)(4).

                                     III

      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, 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




                                                                         A-1150-16T1
                                       19
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)).

      Here, the Commissioner imposed administrative penalties consistent with

the regulatory violations and in accord with DEP's penalty regulation. These

were the minimum "base" penalties for these violations. See N.J.A.C. 7:26C-

9.5 -9.6. Penalties can be assessed where enforcement is necessary to achieve

remediation.   See N.J.S.A. 58:10B-1.3(e) (failure to comply can result in

enforcement under N.J.S.A. 58:10-23.11u(c)(1), which authorizes civil

administrative penalties).    There was nothing arbitrary, capricious or

unreasonable about the Commissioner's assessment of the penalties in this case.

The Commissioner applied the regulations.

      Affirmed.




                                                                       A-1150-16T1
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