NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, BUREAU OF SOLID WASTE COMPLIANCE AND ENFORCEMENT v. CIRCLE CARTING, INC et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3907-03T13907-03T1

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

BUREAU OF SOLID WASTE

COMPLIANCE AND ENFORCEMENT,

Respondent,

v.

CIRCLE CARTING, INC and

EARL HENRIQUEZ-GIL,

Appellants.

 

Argued: November 2, 2005 - Decided:

Before Judges Stern, Fall and Parker.

On appeal from a final administrative decision of the New Jersey Department of Environmental Protection, Docket Number SW-07437.

David P. Brook argued the cause for appellants (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Brook, on the brief).

Caroline Vachier, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Andrea Silkowitz, Assistant Attorney General, of counsel; Ms. Vachier and Susan J. Vercheak, Deputy Attorney General, on the brief).

PER CURIAM

Circle Carting, Inc. and Earl Henriquez-Gil appeal from a final administrative decision issued by respondent New Jersey Department of Environmental Protection (NJDEP) dated March 15, 2004, revoking Circle Carting's A-901 solid waste license; revoking Circle Carting's registration as a solid waste transporter; revoking Circle Carting's certificate of public convenience and necessity; debarring Henriquez-Gil from the solid waste industry in New Jersey; assessing penalties in the amount of $197,250 against appellants; and requiring appellants to submit a plan to NJDEP "within twenty days that details the removal and disposal of all solid wastes at the site, remediation of the site and restoration of any and all delineated wetlands and streams damages by activities at the site, in accordance with any applicable rules and regulations."

I.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On September 3, 1992, Henriquez-Gil pled guilty in the Law Division to theft of services, conspiracy and two counts of theft by deception in conjunction with his waste disposal business, Circle Carting, Inc. Those offenses disqualified Henriquez-Gil from holding an A-901 solid waste license unless he could establish, by clear and convincing evidence, that he had been rehabilitated. Subsequently, the NJDEP issued Circle Carting a conditional A-901 license. However, the conditional license prohibited Circle Carting from entering into government solid waste contracts until October 2, 1997.

While the NJDEP was considering Henriquez-Gil's rehabilitation petition, the record on appeal established that he was illegally dumping waste at the site of his business, in violation of both solid waste and wetlands regulations. During this time, the NJDEP issued multiple notices of violation to Circle Carting and Henriquez-Gil for utilizing unregistered vehicles and unpermitted solid waste facilities.

Henriquez-Gil was charged with dumping at the wrong landfill by the Hackensack Meadowland Development Commission; violating waste flow regulations by the New Jersey Board of Public Utilities and Hunterdon County Health Department; and violating landfill regulations by the County of Middlesex. On February 26, 1999, Henriquez-Gil pled guilty to two disorderly persons offenses for dumping pulverized construction and demolition (c & d) material at Circle Carting's facility on Berkshire Valley Road in Roxbury Township, and for illegally transporting that waste to that site. As a result, on November 4, 1999, the NJDEP debarred Henriquez-Gil and revoked Circle Carting's A-901 license.

On December 1, 1999, appellants sent a letter to the NJDEP requesting a hearing. On September 7, 2000, the matter was transmitted to the Office of Administrative Law (OAL) as a contested matter for a hearing before an administrative law judge (ALJ).

On October 17, 2001, the NJDEP issued an administrative order that revoked Henriquez-Gil's transporter license and his certificate of public convenience and necessity. That order also required appellants to submit a plan within twenty days that detailed the removal and disposal of all solid wastes at Circle Carting's Berkshire Valley Road site; the remediation of the site; and the restoration of any and all delineated wetlands and streams damaged by the activities at the site, with that plan to be completed within ninety days of the October 17 order. On October 29, 2001, Henriquez-Gil sent a letter to NJDEP requesting a hearing and, on January 25, 2002, the matter was transmitted to the OAL for a hearing. The two cases were consolidated and hearings were held on October 16, 17, and 21, 2002.

On December 16, 2003, the ALJ issued an initial decision recommending the revocation of Circle Carting's A-901 license, its solid waste transporter license, and its certificate of public convenience and necessity; the debarring of Henriquez-Gil from the solid waste industry; and the assessment of a $195,250 penalty against appellants for the violations. On March 15, 2004, the NJDEP Commissioner issued a final administrative decision, affirming the recommendations of the ALJ, and required Henriquez-Gil and Circle Carting to submit and execute a remediation plan for the site, as required by paragraph twenty-five of the October 17, 2001 order. Appellants' application for a stay pending appeal was denied by the NJDEP Commissioner, by this court, and by the Supreme Court.

II.

Henriquez-Gil has worked in the trash pick-up business since approximately 1972. He began with Policastro Rental Service, Inc., his father-in-law's business, initially working as a driver. By 1980, he was appointed as general manager of Policastro. He continued in that position until 1984 when he severed his relationship with the company. In 1985, Henriquez-Gil started his own trash pick-up business Circle Carting, Inc. Henriquez-Gil's wife and partner in business, Toni Ann Henriquez-Gil, handled the payroll, bills and sales transactions. Joe D'Angerio served as accountant for the business. In 1993, Policastro ceased operations and Circle Carting moved into Policastro's location at 36 Berkshire Valley Road in Roxbury Township as a tenant of Policastro.

Circle Carting held an A-901 solid waste license; was registered as a solid waste transporter; and had obtained a certificate of public convenience and necessity. These qualifications permitted Circle Carting to collect and haul solid waste in New Jersey; however, at no time did Circle Carting possess a license to dispose of solid waste, operate a recycling center, or operate a solid waste facility.

During its operations, Circle Carting contracted with private entities to pick up regular, construction and c & d garbage from locations in Sussex, Morris, Essex, Somerset and Passaic counties. In 1990 and 1991, Circle Carting engaged in work for municipalities, including Mine Hill and Randolph Townships. Circle Carting charged the municipalities dumping costs, by the tonnage, and transportation costs for taking the collected residential trash to the transfer station. During late 1991, Circle Carting engaged in the practice of leaving left-over trash collected from private-company locations in its truck before going to Randolph Township for conducting its residential trash pick-up service. This commingling of private and municipal trash was illegal, and resulted in the municipalities being charged extra tonnage. Meanwhile, the private companies were also being billed for the same garbage, resulting in double-billing. Circle Carting was caught engaging in this practice five times between October 7, 1991 and October 28, 1991.

After his arrest, Henriquez-Gil gave a statement to the authorities admitting that he had committed these offenses. In accordance with the sentence imposed, Henriquez-Gil fully reimbursed the municipalities, and performed 200 hours of community service. Henriquez-Gill and Circle Carting were permitted to retain the A-901 solid waste license conditionally. However, as noted, Henriquez-Gill and Circle Carting were not permitted to bid on government contracts, and were therefore limited to collecting solid waste from private entities.

Prior to Circle Carting becoming a tenant of Policastro at the Berkshire Valley Road property, NJDEP Investigator Scott Shrader had observed several piles of concrete, wood, tires, shingles, litter, bottles, and rusted load containers at that site. Shrader issued notices of violations of N.J.A.C. 7:26-3.4(c) and N.J.A.C. 7:26-2.8(f) to Policastro for storing solid waste in excess of twenty-four hours on property, and for operating an unpermitted solid waste facility. Policastro had received at least three previous notices of violations: (1) for violating wetlands regulations on October 17, 1989; (2) for operating an unpermitted solid waste facility on March 10, 1992; and (3) for receiving, storing, processing, and transferring class B recyclables without prior written approval on March 12, 1992.

On December 1, 1994, Shrader observed several piles of concrete chunks, concrete blocks, and a small amount of other materials at the Berkshire Valley Road property being leased by Circle Carting. Shrader issued a notice of violation of N.J.A.C. 7:26-2.8(f) to Henriquez-Gil for operating an unpermitted solid waste facility. On January 6, 1995, Shrader returned to Circle Carting's Berkshire Valley Road property and found that Henriquez-Gil had cleaned up the piles, and the debris was gone.

On April 6, 1995, NJDEP health officer and environmental health specialist Frank Grisi was informed that containers filled with both residential and c & d garbage were being unloaded at Circle Carting's Berkshire Valley Road property. The NJDEP had received a complaint because solid waste was being emptied into bays large open areas inside industrial buildings that house large trucks. The amount of refuse found in the bays would have filled, approximately, a thirty-foot by thirty-foot room. This activity violated local public nuisance codes, and State solid waste operation laws, including a prohibition against operating an illegal transfer station. Henriquez-Gil told the inspectors that he would remedy the situation, and the next day he moved the material to the county transfer station.

Also on April 6, 1995, Michael Flora, a waste flow investigator for Morris County Municipal Utility Authority, received information from John Sermamella of the Morris County Recycling Center that there was an overloaded, unregistered roll-off container belonging to Circle Carting on the property of Classic Metal corporation. Circle Carting reclaimed the container and returned it to its Berkshire Valley Road property. Flora went to the Circle Carting property and observed a bay filled with the same solid waste from the roll-off he had observed at Classic Metal, which included a large pile of shingles, couches, carpet, and other household waste. Flora advised Henriquez-Gil that he was operating an illegal transfer station. Although Henriquez-Gil argued that the Berkshire Valley Road property was a recycling center, it was not duly licensed as such.

On June 21, 1995, Henriquez-Gil permitted Richard Hornecker Trucking Company to bring processed c & d debris materials to the Berkshire Circle Carting property, in violation of solid waste laws. Henriquez-Gil further violated these laws by spreading the processed c & d debris across his property, using mechanical equipment.

On August 3, 1995, Grisi received a phone call from Al Pitelleo, who operated a vacuum repair shop. Pitelleo told Grisi that an individual at his shop, Manuel Lavin, was an employee of Circle Carting and had information regarding the illegal disposal of solid waste at the Berkshire Valley Road property. Grisi went to Pitelleo's shop and spoke with Lavin. Lavin explained that Henriquez-Gil had been receiving daily shipments of pulverized c & d waste from Richard Hornecker Trucking Company and had spread it around the property.

Grisi went to the Berkshire Valley Road property and observed "a pulverized, gritty waste" that was "grayish in color" and definitely contained demolition. Grisi observed pieces of towel racks, door knobs, bricks, window sills, and other items of that nature. Grisi believed that some of the materials were encroaching on the wetlands areas, or swampy areas containing particular vegetative growth. Grisi brought NJDEP wetlands enforcement officer Barbara Cowan with him to inspect the property.

On August 16, 1995, Grisi called Flora and advised him of the illegal landfilling at the Berkshire Valley Road property. Grisi also indicated that he had an informant who would get in touch with Flora. Flora met with Lavin and Lavin's friend, Ditullio. Lavin told Flora that he was upset because Henriquez-Gil had fired him and he was still owed money. Lavin also told Flora that Henriquez-Gil was landfilling ground-up c & d waste that had been hauled in tractor trailers by Richard Hornecker Trucking Company, and that the dumping had occurred between 1:30 a.m. and 3:00 a.m. Also on August 16, 1995, Shrader issued a notice of violation of N.J.A.C. 7:26-3.4(h) to Henriquez-Gil for a roll-off container that lacked a current registration decal.

On August 17, 1995, Flora went to Circle Carting's Berkshire Valley Road property at 1:30 a.m. to conduct a surveillance of dumping activity. He surveyed the area until 8:50 a.m., with no pertinent activity to report. Later that morning, Flora met with Grisi, Lavin and Ditullio. Flora then returned to the Berkshire Valley Road property to observe and take samples of ground-up c & d waste pushed up against the railroad tracks located on the property.

On August 18, 1995, Flora returned to the Berkshire Valley Road property with Grisi and Cowan, and they all observed what they believed were several wetlands violations. Between April and August 1995, Henriquez-Gil had encroached on the wetlands by filling the surrounding area with pulverized c & d waste that included, among other things, asphalt pieces. As of 2000, the c & d waste remained on that property.

Throughout these inspections, Grisi, Flora and Cowan were aware that Tree King and Jacobsen Excavating were also tenants on the Berkshire Valley Road property; however, their equipment and trucks differentiated their particular areas of the property. Tree King was located in the rear of the property, which was apparent from the area where it kept its equipment and trucks. There was also a large amount of wood and wood chip debris in that area. Jacobsen Excavating parked its vehicles in the front portion of the property by the garage on the site.

On August 21, 1995, Flora met with NJDEP investigator Bob Leary to conduct an inspection of the Berkshire Valley Road property; Grisi and Cowan also joined them. Leary and Flora had a conversation with Henriquez-Gil, in which Henriquez-Gil informed them that he had taken control of the property as landlord over two years ago and that it was a mess at that time. Henriquez-Gill stated he had attempted to keep the property clean and had used ground-up c & d waste to cover over and "dress up" the property. Based on the August 21st inspection, Leary issued a notice of violation of N.J.A.C. 7:26-2.8(f) to Henriquez-Gil for operating an unpermitted solid waste facility. A notice for the same violation was also issued to Tree King.

Meanwhile, Lavin informed Flora that Circle Carting had also deposited solid waste at the Stanhope Grammar School in Stanhope, New Jersey. Flora visited the school and surveyed a small dump site behind the garage containing leaves, plastic bags, brush, tree parts, grass, cement, asphalt, pieces of vinyl siding, tile board and some painted wood. The head custodian at the school, Ward Sherrer, stated that he had not given Circle Carting permission to dump at the school and, as far as he knew, it never did. Nonetheless, based on this inspection, Leary issued a notice of violation of N.J.A.C. 7:26-2.8(f) to the school for illegal operation of a solid waste facility.

On August 23, 1995, Mrs. Henriquez-Gil contacted Detective Daniel DeGroot of the Morris County Prosecutor's Office. She had recently seen news events concerning the NJDEP investigation and had heard that the prosecutor's office was taking action. She invited the detectives to the Berkshire Valley Road property to discuss the matter. Grisi had previously advised DeGroot of violations concerning the Berkshire Valley Road property.

DeGroot, along with Grisi and a couple of other detectives from the Roxbury Township Police Department, visited the Berkshire Valley Road property on August 25, 1995. DeGroot observed finely ground c & d debris that included wood, brick and sheet rock "spread around pretty much the . . . surface of the entire property." Henriquez-Gil told the detectives that he had spread this material over the entire surface of the ground to "spruce the place up." During this inspection, Grisi informed DeGroot that he should interview Manuel Lavin for further information.

On August 29, 1995, Shrader returned to the Berkshire Valley Road property to further investigate Leary's notice of violation concerning c & d material on the property. Shrader confirmed that finely ground c & d material, wood chips, ceramics, wires, and other debris were present on the property. At that time, Shrader issued a notice of violation of N.J.A.C. 7:26-4.4(h) to Henriquez-Gil because three loaded roll-off containers had expired decal stickers.

On September 19, 1995, DeGroot interviewed Lavin. Lavin told the detective that he had spread pulverized c & d waste around the property at Henriquez-Gil's direction. Lavin also mentioned that he had buried solid waste in certain areas of the property. Finally, Lavin identified an area of the property where debris was protruding from the ground and told the detective that the NJDEP had ordered Gil to remove it. Lavin stated that Henriquez-Gil had disposed of some of the debris, but had buried the rest right where it sat.

On May 17, 1996, DeGroot, Flora, Grisi and Shrader searched the Berkshire Valley Road property. DeGroot had obtained a search warrant to perform dig tests to determine what materials were buried on the property, and specifically to confirm Lavin's statements regarding the burial of debris. At that time, Flora was working with investigator Shrader. The dig tests unearthed multiple pieces of solid waste, including concrete, brick, cyclone fencing, asphalt, wood, and metal at depths of five or six feet. Shrader issued a notice of violation of N.J.A.C. 7:26-2.8(f) to Henriquez-Gil for the operation of an unpermitted solid waste facility.

That day at the Berkshire property, DeGroot also interviewed Richie Jacobsen of Jacobsen Excavating and Michael Gulick of Tree King. Both Jacobsen and Gulick stated that Henriquez-Gil had buried debris on the property during his employment with Policastro, and throughout Henriquez-Gil's operation of Circle Carting at that site.

On June 17, 1996, Grisi filed complaints on behalf of the State of New Jersey, charging Henriquez-Gil with unlawfully filling-in freshwater wetlands, water pollution, criminal water pollution, and two offenses for unlawfully transporting and disposing of solid waste. The first three offenses were indictable and the last two were disorderly persons offenses. The indictable offenses were dismissed. Henriquez-Gil pled guilty to the disorderly persons offenses, and was convicted of two counts of engaging in illegal disposal of solid waste and transporting excess solid waste involving c & d debris.

On May 9, 1997, a Circle Carting truck was pulled over for a random "road check" vehicle inspection. That vehicle was a "roll-off" a vehicle with a 30-yard unit that was tilted and slid off the chassis to remain at a location for trash disposal until it was later retrieved. NJDEP solid waste investigators, Edward Castellano and Teresa Langston, asked the driver, Circle Carting employee Lawrence Gumaer, for an origin and destination form to show where the waste was picked up and where it was going to be disposed. Gumaer did not have this form with him. Castellano inspected the contents of the vehicle and observed wicker baskets, suitcases, lawn chairs, plastic laundry baskets, wooden stools, cardboard boxes, and gas grills. Castellano and Langston found this to be a regulatory violation because that garbage was classified as Type 13C material waste that had to be weighed at a county facility, yet Gumaer had no weigh slip with him. Additionally, Castellano observed that the sticker decals issued by the NJDEP on the roll-off were expired. Thus, Castellano and Langston issued Circle Carting notices of violations of N.J.A.C. 7:26-3.2(a) for failure to obtain approved registration; N.J.A.C. 7:26-3.4(h) for operation of an unmarked vehicle; and N.J.A.C. 7:28-6.5 for a violation of waste flow regulations.

As a requirement for dumping waste in Morris County, individuals must maintain an account with the Morris County Municipal Utility Authority, containing a minimum balance. On March 23, 1999, Henriquez-Gil's account balance with the main office at the Authority had fallen into negative ranges. Flora tried to locate Henriquez-Gil at the Berkshire Valley Road property to discuss that matter, but could not find him. However, based on Flora's inspection of the Berkshire Valley Road property on that day, Shrader issued a notice of violation of N.J.A.C. 7:26-2.8(f) to Henriquez-Gil for operating an unpermitted solid waste facility.

On August 31, 1999, NJDEP investigator Edward Kozak performed a spot check inspection at Circle Carting's garage and yard located on Central Avenue in Denville. He issued a notice of violations of N.J.A.C. 7:26-3.2(a)2 for four unregistered containers, one with no decal and three with expired decals. On September 28, 1999, Kozak issued another notice of violation of N.J.A.C. 7:26A-4.2 to Henriquez-Gil for operating a recycling center without authorization.

From 1996 through 1999, Henriquez-Gil regularly filed mandatory A-901 disclosure statements with the State of New Jersey. However, the disclosure statements omitted the vast majority of the aforementioned violations.

On the basis of these violations, on November 4, 1999, the NJDEP debarred Henriquez-Gil and revoked Circle Carting's A-901 license. Nevertheless, the violations continued. On March 21, 2001, Kozak performed a roadside check on a Circle Carting truck on Route 80, close to the town of Allamuchy. There was no registration decal sticker on the roll-off. Kozak issued a notice of violation of N.J.A.C. 7:26-3.2(a)2 to Circle Carting for an unregistered solid waste device.

On October 17, 2001, the NJDEP issued an administrative order that revoked appellants' transporter license and their certificate of public convenience and necessity. Appellants requested a hearing on this revocation, and on the previous revocation of their A-901 license, as well as Henriquez-Gil's debarment, and the cases were consolidated before ALJ Richard T. McGill.

After the hearings and submissions by the parties, Judge McGill issued an initial decision on December 16, 2003, recommending the revocation of Circle Carting's A-901 license, its solid waste transporter license, and its certificate of public convenience and necessity; the debarring of Henriquez-Gil from the solid waste industry; and the assessment of a $195,250 penalty. The ALJ concluded that Circle Carting and Henriquez-Gil had operated an unpermitted solid waste facility, had improperly disposed of solid waste, had maintained unregistered containers or ones with expired decals, and had failed to list relevant information, as required, on the A-901 disclosure statements. On March 15, 2004, NJDEP Commissioner Bradley M. Campbell adopted the findings, conclusions and recommendations contained in the ALJ's decision. In his decision, the Commissioner also ordered appellants to

submit a plan to the [NJDEP] within twenty days that details the removal and disposal of all solid wastes at the site, remediation of the site and restoration of any and all delineated wetlands and streams damaged by activities at the site, in accordance with any applicable rules and regulations. All solid waste transport shall be done in vehicles licensed and registered by [NJDEP], and all disposal shall be at a facility licensed and registered to accept solid waste. [Appellants] shall complete their efforts within ninety days of receipt of this decision.

In ordering remediation and restoration, the Commissioner stated, in pertinent part:

Although the Department also filed exceptions [to the ALJ's Initial Decision], it did not challenge either the factual or the legal findings set forth in the Initial Decision. Rather, the Department stated that ALJ McGill had neglected to address that portion of the [October 17, 2001 administrative order] which ordered an abatement plan. Paragraph twenty-five of the [October 17, 2001 order] required that [appellants] submit a plan for the removal and disposal of all solid wastes at the site, as well as remediation of the site and restoration of any delineated wetlands and streams damages by [appellants'] activities within ninety days. This provision was not listed as an issue for consideration in the pre-hearing order. Moreover, [appellants'] never challenged the order to submit a plan in their hearing request, during the hearing before ALJ McGill or in their post-hearing briefs; but rather chose to focus their arguments on liability. N.J.S.A. 13:1E-9(b) and (c) specifically provide the Commissioner with the authority to order a person to abate conduct found to violate N.J.S.A. 13:1E-1 et seq., or any rule or regulation promulgated thereunder. In this case, ALJ McGill found that [appellants'] actions were in violation of the statute. Accordingly, the submission of a plan as required by paragraph twenty-five of the [October 17, 2001 administrative order] must be upheld.

[Emphasis added.]

In a footnote, citing to N.J.S.A. 13:1E-103, the Commissioner noted that appellants' "argument that others have also contributed to the presence of waste on the site does not exonerate them from the responsibility to abate."

On appeal, appellants present the following arguments for our consideration:

POINT I

THE DECISION BY THE COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION FAILED TO ESTABLISH A LEGALLY SUPPORTED BASIS TO PROVE THAT CIRCLE CARTING VIOLATED THE SOLID WASTE ACT OR ANY OTHER STATE STATUTE IN ANYTHING OTHER THAN IN A MINOR NATURE.

A. The State's Reliance On Hearsay Evidence Failed To Present Enough Legally Competent Evidence To Support The Ultimate Findings Of Fact And Conclusions Of Law.

B. Reuse Of Certain Materials That Had Traditionally Been Considered Solid Waste Is Permitted.

POINT II

THERE WAS NO LEGALLY SUPPORTED BASIS FOR THE COMMISSIONER TO FIND THAT CIRCLE CARTING'S A-901 LICENSE, CIRCLE CARTING'S SOLID WASTE TRANSPORTER'S LICENSE, CIRCLE CARTING'S CPCN CERTIFICATE SHOULD BE REVOKED AND THAT MR. GIL SHOULD BE PERSONALLY DEBARRED FROM THE SOLID WASTE INDUSTRY IN NEW JERSEY.

A. No Fitness Analysis Was Performed In The Hearing To Sustain License Revocations And Personal Debarment.

B. The State Should Be Estopped From Using The 1992 Conviction Without First Demonstrating That The Factors That Led To The 1995 Finding Of Rehabilitation No Longer Apply.

1.) The State should have administratively reversed its finding of rehabilitation if it wanted to use the 1992 conviction as a basis for revocation.

2.) The ALJ should have limited or excluded the 1992 Conviction from trial since Rules of Evidence 403 and 404 require exclusion or restriction.

C. The ALJ Erred In Placing The Burden Of Proof Upon Circle And Mr. Gil.

POINT III
THE STATE VIOLATED CIRCLE CARTING'S AND [MR.] GIL'S CONSTITUTIONAL RIGHTS TO PROCEDURAL DUE PROCESS BY DEPRIVING HIM OF HIS PROPERTY INTERESTS WITHOUT THE OPPORTUNITY FOR A HEARING ON THE ALLEGATIONS.

POINT IV

THE PENALTIES ASSESSED IN THIS MATTER WERE EXCESSIVE IN LIGHT OF THE NATURE OF THE ALLEGED VIOLATIONS.

A. Penalties assessed for violations of N.J.A.C. 7:26-2.8(f).

B. Penalties assessed for violations of N.J.A.C. 7:26-3.4(h).

POINT V

DEP FAILED TO RAISE THE ISSUE OF SUBMITTING A SITE REMEDIATION AND RESTORATION PLAN AT THE HEARING AND IT THEREFORE HAS NO LEGAL AUTHORITY TO ADD NEW FINDINGS REQUIRING CIRCLE AND MR. GIL TO CONDUCT SUCH WORK WITHOUT HAVING RAISED THIS MATTER AT TRIAL.

III.

Appellants contends that there was insufficient evidence presented at the hearing to support the ultimate findings and conclusions of the Commissioner. We disagree.

The NJDEP has been given broad authority to supervise and control solid waste hauling and disposal, both environmentally through New Jersey's Solid Waste Management legislation (SWMA), N.J.S.A. 13:1E-1 to -225, and as a public utility through the Solid Waste Utility Control Act (SWUCA), N.J.S.A. 48:13A-1 to -13. Solid waste collectors and haulers are subject to close regulation. They are required to obtain a certificate of public convenience and necessity pursuant to N.J.S.A. 48:13A-6. The Board of Public Utilities possesses general regulatory powers over utilities under SWUCA, but the NJDEP is granted the specific power to suspend or revoke a certificate where its holder has violated any provision of SWUCA or any rule or regulation promulgated thereunder, has violated any law related to pollution of the air, water or lands of the State, has refused to comply with any lawful order of the NJDEP, or has had its environmental registration revoked. N.J.S.A. 48:13A-9.

Additionally, solid waste haulers must obtain an A-901 license and meet various registration requirements regarding their contractors and equipment. See N.J.A.C. 7:26-3.2; N.J.S.A. 13:1E-4; N.J.S.A. 13:1E-126 to -135. The A-901 license was promulgated to combat the serious health and environmental threats involved in waste management as well as the industry's long history of vulnerability to organized crime. Trade Waste Mgmt. Ass'n, Inc. v. Hughey, 780 F.2d 221, 223 (3rd Cir. 1985); N.J.S.A. 13:1E-126 to -135. A key tool for monitoring this industry is the requirement that solid waste applicants and licensees must file a comprehensive disclosure statement. N.J.S.A. 13:1E-128. This statement seeks detailed information on owners and employees and their competency, reliability and integrity, and requires that applicants list any notices of violation or prosecution, administrative orders or license revocations, whether pending or adjudicated and determined. N.J.S.A. 13:1E-127e(5); N.J.S.A. 13:1E-127e(9). There is a continuing duty on the part of waste haulers to regularly update their disclosure statements with any pertinent changes. N.J.S.A. 13:1E-128b.

The NJDEP and the Attorney General evaluate all information pertaining to the A-901 license. Thus, the NJDEP may revoke a solid waste license for any crimes enumerated in N.J.S.A. 13:1E-133b; or, if the applicant has shown insufficient integrity, reliability, expertise or competence in hauling solid waste; or even for inducing a violation of any solid waste law. See N.J.S.A. 13:1E-133a; N.J.S.A. 13:1E-134. Although the State Board of Public Utilities grants and revokes the public convenience and necessity licenses of the applicant public utilities and not their owners, the Commission "is not restricted to determining whether the applicant itself has violated [SWUCA] and its implementing regulations but also may consider whether any manager, officer, director or other principal of the applicant has been guilty of such a violation." In re Scioscia, 216 N.J. Super. 644, 657 (App. Div.), certif. denied, 107 N.J. 652 (1987).

Here, there was substantial, credible evidence contained in the record to establish that Henriquez-Gil has not evidenced integrity, reliability, expertise, and competence in his ownership and operation of Circle Carting. While employed by the Townships of Mine Hill and Randolph, Circle Carting engaged in the practice of leaving left-over trash collected from private companies on the truck before going to the municipalities to pick up trash. This commingling of private and municipal trash was illegal and resulted in the municipalities being charged extra tonnage. Henriquez-Gil was convicted of theft of services, conspiracy and two counts of theft by deception in conjunction with his waste disposal business in the Law Division. The Deputy Attorney General handling the matter, after considering revoking its license in an A-901 matter, determined that Circle Carting could not bid on government contracts, but could continue to perform private contracts. Henriquez-Gil was permitted to maintain a conditional license from 1992 through 1997. Nevertheless, Henriquez-Gil's lack of integrity and reliability would have been sufficient grounds for revoking his A-901 license, as would have his theft conviction under N.J.S.A. 13:1E-133b(10) and N.J.S.A. 13:1E-133b(22). As we have noted, throughout the course of holding this conditional license, Circle Carting committed numerous solid waste violations, the vast majority of which were never remedied and continually repeated.

Overall, Henriquez-Gil was convicted of two counts of engaging in illegal disposal of solid waste and transporting excess solid waste in a criminal court, and he had approximately twelve different violations of NJDEP regulations: four for operating an unpermitted solid waste facility, three for expired decals on waste vehicles, three for missing registration on waste vehicles, one for violating waste flow regulations, and one for operating an unpermitted recycling center. Investigators for four different governmental agencies DEP, Morris County Utility Authority, Morris County Prosecutor's Office, and the Township of Roxbury witnessed Circle Carting shipping, dumping, spreading, burying, and storing solid waste without the requisite licenses.

Henriquez-Gil himself admitted and pled guilty to unlawful handling of solid waste. Furthermore, the mandatory filing and updating of an A-901 application requires the disclosure of all notices of violations, administrative orders, summonses and disorderly persons offenses. N.J.S.A. 13:1E-127e; N.J.S.A. 13:1E-128b. From 1996 through 1999, the disclosure statements omitted the vast majority of the aforementioned violations.

Our role in reviewing the decision of an administrative agency is to determine whether the decision could reasonably have been reached on the evidence as a whole "with due regard [sic] to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973). We must determine whether the Commissioner made the requisite findings, if sufficient findings were made, and whether those findings constituted reasonable, supporting evidence for the decision. Department of Pub. Advocate v. Bd. of Pub. Utilities, 189 N.J. Super. 491, 499-500 (App. Div. 1983).

Appellants also contend that the Commissioner's decision improperly relied on hearsay evidence. We disagree.

Generally, hearsay evidence is admissible in administrative trials. N.J.S.A. 52:14B-10(a) (parties in administrative adjudication not bound by formal rules of evidence); In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980) ("it is common practice for administrative agencies to receive hearsay evidence at their hearings"). Although hearsay evidence is admissible, there are limitations on the extent of its use:

[I]n our State as well as in many other jurisdictions the rule is that a fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.

[Weston v. State, 60 N.J. 36, 51 (1972).]

We conclude that in issuing its decision, the NJDEP did not employ hearsay evidence to an impermissible degree. Indeed, a residuum of legal and competent evidence in the record both corroborated the hearsay evidence and ultimately supported the administrative decision. This foundation of legal and competent evidence took the form of both eyewitness testimony and reliable, well-established exceptions to the hearsay rule.

During the hearings, several investigators testified to their own personal observations of violations on the Berkshire Circle Carting property. Shrader testified that he observed solid waste on the property on December 1, 1994. Appellants contend that "solid waste" was not specifically defined by the prosecution at the hearings. However, Shrader did testify to witnessing piles of concrete, wood, tires, shingles, little, bottles and rusted containers. N.J.S.A. 13:1E-3 broadly defines solid waste as:

garbage, refuse, and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activities, and shall include all other waste materials including liquids, except for source separated recyclable materials or source separated food waste collected by livestock producers approved by the State Department of Agriculture to collect, prepare and feed such wastes to livestock on their own farms.

This definition easily encompasses Shrader's observations and the observations of other investigators. Flora testified that he observed shingles, couches, carpet, and other household waste at the property on April 6, 1995. Grisi testified that he observed c & d waste at the property on August 3, 1995. DeGroot testified that he observed ground c & d debris that included wood, brick and sheet rock on August 25, 1995. Shrader testified that he observed the same ground c & d material on the property on August 29, 1995. DeGroot testified that he executed a search warrant on May 17, 1996, and that search confirmed the extent of pulverized c & d waste. The eyewitness testimony of these solid waste violations continued throughout the hearings, including observations of expired decals, unregistered vehicles, and operation of an unpermitted recycling center, among others.

In addition to the eyewitness testimony, there was other credible evidence presented in the form of exceptions to the hearsay rule. The New Jersey Rules of Evidence permit the admission of statements of party opponents, statements against interest, business records and public records. N.J.R.E. 803 (b); N.J.R.E. 803(c)(6); N.J.R.E. 803(c)(8); N.J.R.E. 803(c)(22). These statements and records are admissible to prove the truth of the matters asserted. Ibid.

Additionally, as a party opponent to the State, Henriquez-Gil admitted to authorities that he had engaged in the practice of leaving left-over trash on his truck before picking up for the municipalities. On October 5, 1994, Henriquez-Gil acknowledged that he brought concrete blocks to his site, which resulted in his December 1st notice of violation. On April 6, 1995, Henriquez-Gil informed investigators that roll-off containers emptied solid waste at the Berkshire Valley Road property in order to remove recyclables. In conversations with investigators on August 21 and 25, 1995, Henriquez-Gil admitted to dumping and spreading c & d waste across his property to "spruce the place up." On May 29, 1997, after numerous written and oral directions to remove the pulverized c & d waste, Henriquez-Gil admitted that the waste had not been removed. On October 30, 1998, Henriquez-Gil pled guilty to two disorderly persons offenses stemming from the dumping and spreading of pulverized c & d debris. All of these statements are readily admissible by the State as statements of a party opponent, and form a solid basis for the Commissioner's decision.

Furthermore, Lavin's statements are also admissible as statements against interest. His statements are considered inherently trustworthy because Lavin was unlikely to make a statement contrary to his best interest unless it was truthful. See State v. White, 158 N.J. 230, 238 (1999). Lavin spoke against his interest when he "in effect admitt[ed] to an offense of improperly disposing of solid waste contrary to N.J.S.A. 13:1E-9.3" by telling DeGroot that he buried pulverized waste at the Berkshire Valley Road property. Not only were Lavin's statements admissible under the statement against interest exception, but the truth of his assertions was corroborated by the investigators testimony of their search of the property on May 17, 1996.

The reports and violation notices created by the aforementioned State witnesses were properly admissible under the business records exception to the hearsay rule. These documents were properly authenticated and witnesses testified to, and were cross-examined on, the statements in their reports.

Viewed collectively, the non-hearsay testimony of the State's witnesses combined with Henriquez-Gil's admissions, Lavin's statements against interest, and the business and public records form a solid and reliable evidentiary foundation for the Commissioner's decision in this case.

Appellants further contend that because the State failed to prove that Circle Carting's c & d materials were solid waste, and because the NJDEP failed to afford Circle Carting an opportunity to apply for an after-the-fact beneficial use permit for its c & d materials, there is not a legally supportable basis for the Commissioner's decision. Not so.

As we have noted, solid waste is broadly defined as "garbage, refuse, and other discarded materials resulting from industrial, commercial and agricultural operations[.]" N.J.S.A. 13:1E-3. The recurring testimony and admissions about the c & d material on Circle Carting's Berkshire Valley Road property clearly established that Circle Carting was spreading and storing "solid waste" under this definition. The c & d material on the property contained garbage, refuse and other discarded material from industrial and commercial operations such as concrete, wire, bricks, window sills, couches, shingles, carpet, household waste, towel racks, door knobs, asphalt pieces, wood, sheet rock, ceramics, cyclone fencing, metal, and other debris.

There are exemptions from the definition of "solid waste" for "beneficial use," defined as "the use or reuse of a material, which would otherwise become solid waste . . . as landfill cover, aggregate substitute, fuel substitute or fill material[.]" N.J.A.C. 7:26-1.4. However, the NJDEP must specifically approve the particular applications of beneficial use. N.J.A.C. 7:26-1.7(g).

Appellants argue further that "[i]f Circle had been informed by the State, it could have acted to apply for a beneficial use of these materials as a cover material for regrading the area." Simply put, Circle Carting did not obtain approval for the beneficial use of its solid waste. The NJDEP is under no obligation to inform Circle Carting of its rights under the law and, furthermore, there is no guarantee that Circle Carting would have received such a beneficial use permit in light of its extensive record of solid-waste violations.

Appellants assert that because no fitness analysis was performed during the hearings, there is no legally supportable basis for the Commissioner's decision. More specifically, appellants contend that Henriquez-Gil's solid waste violations, the failure to provide information in his A-901 updates, and his criminal convictions may impact his individual fitness to participate in the solid waste industry, but that those factors "may have no bearing upon the fitness of the company or the principals as they exist today." (Emphasis added). To the contrary, Henriquez-Gil's personal fitness does have bearing on his corporation's licensing.

The fitness of individuals in the solid waste industry is part of the evaluative criteria used in determining whether to revoke a public convenience and necessity certificate. Scioscia, supra, 216 N.J. Super. at 656-57. In Scioscia, we compared the relationship between a solid waste hauling company and its owner or operator to the corporation and agent relationship. Id. at 657. "A corporation, as such, has no moral character. The moral responsibility of a corporation is one and the same with the moral responsibility of the individuals who give it direction." Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 482 (1971), cert. denied, 405 U.S. 1065, 31 L. Ed. 2d 796, 92 S. Ct. 1500 (1972). Beyond serving as the owner and operator of Circle Carting, Henriquez-Gil is the majority shareholder and acting agent of the corporation. Thus, Circle Carting has no independent morality apart from that of Henriquez-Gil.

In evaluating the morality of an individual, the NJDEP will look to the following non-exclusive list of factors: the integrity, reliability, expertise and competence of the applicant; the commission of any crimes by a person employed by, or with a beneficial interest in, the business of the applicant; reasonable suspicion that such person lacks good character, honesty or integrity; a current prosecution or pending charge against such person; and the pursuit of economic gain in violation of civil or criminal laws by such person. N.J.S.A. 13:1E-133.

Appellants further argue that no testimony was presented for the specific purpose of evaluating Henriquez-Gil's fitness to hold a license. Appellants note that the State presented witness testimony on road inspections and solid waste piles, but that no State witness directly testified directly to Henriquez-Gil's licensing fitness.

However, "fitness" is a legal conclusion that can be based on witness testimony establishing the factual background for the case. As the NJDEP correctly notes, by drawing out facts relating to the c & d materials, unregistered vehicles and expired decals, both in the form of witness observation and Henriquez-Gil's admissions, the NJDEP established multiple solid waste violations. Through its factual presentation, the NJDEP also sufficiently addressed the factors listed in N.J.S.A. 13:1E-133 regarding Henriquez-Gil's integrity, reliability, expertise and competence.

In Department of Health v. Tegnazian, 194 N.J. Super. 435, 442-43 (App. Div. 1984) we noted that the

ALJ's recommendations must be accompanied by basic findings of fact sufficient to support them. The requirement of such findings is not a technicality but is a matter of substance. Its purpose is to enable a reviewing court to conduct an intelligent review of the administrative decision and determine if the facts upon which the order is grounded afford a reasonable basis therefor.

Here, the ALJ articulated specific factual findings in support of his conclusions. The ALJ found that appellants had operated an unpermitted solid waste facility on December 1, 1994, August 21, 1995, May 20, 1996, May 29, 1997, and March 23, 1999; that defendant buried, or caused to be buried, unprocessed c & d material on the Berkshire Valley Road property; that appellants had improperly disposed of solid waste on April 6, 1995; that appellants' container lacked a NJDEP decal on April 6, 1995; that appellants' three roll-off containers had expired decals on May 9, 1997; that their container was unregistered on August 31, 1999; that appellants' three other containers had expired decals on March 21, 1999; and that appellants had failed to make required disclosures on A-901 annual updates in 1996, 1997, 1998, and 1999.

Repeated solid waste violations establish sufficient grounds for license revocation, debarment and strong sanctions. See N.J.S.A. 48:13A-9; In re Fiorillo Bros. of N.J., Inc., 242 N.J. Super. 667, 688 (App. Div.), certif. denied, 122 N.J. 363 (1990). Therefore, the ALJ's findings formed a reasonable substantive basis for the decision.

IV.

Appellants claim they were denied the right to due process because they were deprived of property rights without the opportunity for a hearing. We disagree.

Basic procedural fairness is a cornerstone of the administrative law system in this state. N.J.S.A. 52:14B-1 et seq.; Limongelli v. Board of Dentistry, 137 N.J. 317, 328 (1993). "Thus, when an executive agency takes action against a person, procedural fairness will often require that the agency grant that person a hearing." Limongelli, supra, 137 N.J. at 328. A critical aspect of this hearing is the opportunity to hear opposing evidence, respond, and present evidence in opposition. Ibid.

"When an administrative determination may have profound consequences, such as the effective loss of a professional license, administrative due process requires that the one affected by opposing testimonial evidence have the opportunity to cross-examine the witness." Id. at 329. Here, a hearing was held over a three-day period. The NJDEP presented seven witnesses who testified based on their personal knowledge of Circle Carting's actions. Circle Carting and Henriquez-Gil had an opportunity to cross examine the witnesses and present their own case in rebuttal; they chose to call only two witnesses: Mrs. Gil and defense counsel. Thus, the fundamental requirements of due process were met.

Appellants also contend that the NJDEP should have been estopped from using, or least be limited in its use of, Henriquez-Gil's 1992 conviction. We disagree.

The admission of evidence in an administrative law proceeding is made at the judge's discretion using "principles of fairness and justice [sic] to aid in the ascertainment of truth." N.J.A.C. 1:1-15.1(b). Parties to administrative hearings are not bound by statutory or common law rules of evidence nor by the New Jersey Rules of Evidence. N.J.A.C. 1:1-15.1(c). Instead, the rule is that a "judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either: 1. Necessitate undue consumption of time; or 2. Create substantial danger of undue prejudice or confusion." Ibid.

Given that the admission of evidence is discretionary with the administrative law judge, "the limited scope of judicial review must be borne in mind; ordinarily, we will not upset a determination by the [based on the ALJ's findings] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies[.]" Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (App. Div. 1963). Therefore, unless the danger of unfair prejudice substantially outweighed the probative value of Henriquez-Gil's conviction, the admission of the 1992 conviction was proper.

The admission of Henriquez-Gil's conviction was especially probative because a criminal conviction for theft is actually one of the disqualifying factors for the holding of an A-901 license. N.J.S.A. 13:1E-133b(10). The conviction was also probative evidence because a conditional licensure agreement was reached between the NJDEP and Circle Carting on the basis of this conviction, meaning that Henriquez-Gil retained only a conditional license as opposed to a fully-operative license. Under the terms of the conditional licensure agreement, Circle Carting was permitted to maintain an A-901 license, but could not bid on government contracts. Circle Carting also had to agree in writing to conform to the provisions of SWMA and maintain its books and records properly. The agreement specifically stated that if Circle violated any of these provisions, that such violations would be grounds for the revocation of its license.

Appellants contend that prejudice flowed from the admission of this conviction because the ALJ found that he had been rehabilitated from the conviction. This overstates the findings by the ALJ. If Circle Carting had been deemed completely rehabilitated, then Henriquez-Gil's license would have remained fully-operative rather than conditional. Specifically, the ALJ stated: "The fact that DEP granted an A-901 license to Circle Carting in October 1995 implies that a determination of rehabilitation had been made with respect to Gil. However, no specific determination of rehabilitation was presented in this proceeding." There was no clear determination by the ALJ with respect to Henriquez-Gil's rehabilitation. Furthermore, even if there was some prejudice flowing from these speculative comments, the probative value of Henriquez-Gil's conviction, in light of the license revocation factors and the conditional licensure agreement that he entered, far outweighed the dangers of unfair prejudice.

Finally, the circumstances under which this 1992 conviction was admitted into evidence are worthy of note. The NJDEP moved to admit the conviction. The ALJ asked defense counsel if there was any objection, and the defense counsel responded, in Henriquez-Gil's presence, "No objection."

Appellants also claim that their due process rights were violated because the ALJ improperly placed on the burden of proof on the defense. Not so.

Appellants have presented no evidence to demonstrate that the burden of proof was shifted to the defense. Unlike the circumstances in Department of Env't Prot. v. Louis Pinto & Son, Inc., 311 N.J. Super. 552 (App. Div. 1998), the ALJ here placed no explicit burden of proof on the appellants to prove their character prior to, or during, the hearings. Moreover, the prehearing order reflected that the burden of proof rested upon the NJDEP.

Appellants point to the ALJ's statement that "[n]o additional evidence of rehabilitation was presented in this proceeding" to argue that the judge placed an affirmative duty on the defense to prove rehabilitation. This statement does not constitute an unequivocal shift in the burden of proof. Instead, it is an articulation of the fact that both sides presented evidence and made arguments to develop their case. Here, where the NJDEP presented persuasive, if not overwhelming, evidence in favor of revocation, the fact that Circle Carting admitted to many violations and could not present contrary evidence was ultimately fatal to their position. Mistakenly, appellants construe the burden of putting on a solid and persuasive defense as bearing the burden of proof. Our careful review of the record discloses no basis to conclude that the ALJ mistakenly shifted the burden of proof to appellants.

V.

Appellants argue that the penalties assessed in this matter were excessive because the NJDEP failed to prove that Circle Carting operated an unpermitted solid waste facility, and because the Commissioner applied penalties from N.J.A.C. 7:26-5.5 without stating the justification for such penalties. We disagree.

Solid waste transporters have a responsibility under the SWMA to dispose of solid waste at a lawfully licensed solid waste facility. N.J.S.A. 13:1E-9.3a. Facilities that meet specific criteria may apply and, if approved, receive a license to operate. N.J.S.A. 13:1E-5. Accordingly, a transporter cannot transform its own site into an unpermitted solid waste facility. N.J.S.A. 13:1E-9.3a.

The SWMA is a strict liability statute, requiring no showing of intent for a violation. State v. Lewis, 215 N.J. Super. 564, 574-75 (App. Div. 1987). N.J.A.C. 7:26-2.8(f) provides that "[n]o person shall begin construction or operation of a solid waste facility without obtaining a SWF Permit[.]" A solid waste facility is "any system, site, equipment or building which is utilized for the storage, collection, processing, transfer, transportation, separation, recycling, recovering or disposal of solid waste but shall not include a recycling center[.]" N.J.A.C. 7:26-1.4. Therefore, contrary to appellants' argument, it is not relevant whether Circle Carting intended to construct or operate a storage site for solid waste. Instead, the crucial point is that it stored solid waste on its property without a license to do so. The facts presented by the NJDEP through witness testimony and Henriquez-Gil's admissions establish that Circle Carting was guilty of multiple instances of operating an unpermitted solid waste facility.

Appellants further contend that the NJDEP failed to present testimony to prove the nature and amounts of the violations and, as a result, the penalty assessments were not objective. However, the NJDEP entered its penalty assessment worksheets into evidence, which outlined the factors that the ALJ used to assess the penalty. For example, the ALJ justified the determination that Circle Carting's N.J.A.C. 7:26-2.8(f) violation was "major" on the grounds that there was a substantial risk of harm to human health or the environment resulting from the operation of a solid waste facility, especially one containing hazardous c & d material. The assessment also cited Circle Carting's ongoing willful and illegal conduct throughout the 1990s and Henriquez-Gil's admissions of that wrongdoing, contrasted to Circle Carting's lack of compliance or remediation. Based on an analysis of these penalty assessment sheets by the ALJ, the penalty entered against the appellants was rooted in an objective evidentiary basis.

With respect to the penalty amounts, the SWMA mandates sanctions for violations of solid waste laws. N.J.S.A. 13:1E-9b. "The amount of the penalty imposed is generally within the sound discretion of the trial judge." Lewis, supra, 215 N.J. Super. at 574. "The number of violations, their frequency, the precautions taken to prevent further mishaps, and the circumstances under which the offense occurred are all relevant factors in determining the penalty." Department of Health v. Concrete Specialties, Inc., 112 N.J. Super. 407, 411 (1970).

The Commissioner of the DEP has the authority to assess a civil administrative penalty of not more than $50,000 for a violation of the SWMA or the regulations promulgated thereunder. N.J.S.A. 13:1E-9e. Each subsequent day the violation persists constitutes a separate and distinct offense. Ibid. Basic penalty amounts are set forth in N.J.A.C. 7:26-5.4, but where the specific circumstances indicate that penalties would be too low to have a deterrent effect, those amounts may be increased to reflect the severity of the violation. N.J.A.C. 7:26-5.5(a)1. N.J.A.C. 7:26-5.5(f) indicates that the Commissioner assesses a civil administrative penalty on the basis of the seriousness of the violation.

On appeal, "the limited scope of judicial review must be borne in mind; ordinarily, we will not upset a determination by the [agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies[.]" Campbell, supra, 39 N.J. at 562. Here, the ALJ's penalty assessment, later finalized with a couple of minor changes made by the Commissioner, was neither arbitrary nor capricious. In his discretion, the ALJ was permitted to assess penalties upon Circle Carting of up to $50,000 per violation per day. The ALJ assessed $45,000 for four major violations of N.J.A.C. 7:26-2.8(f), for a total of $180,000; $1,750 for a fifth minor violation of N.J.A.C. 7:26-2.8(f); and $4,500 each for three minor violations of N.J.A.C. 7:26-3.4(h), for a total of $13,500. The total for all of the violations was $195,250.

Furthermore, the ALJ articulated why the seriousness levels of particular violations were major or minor. For instance, with regard to the four major violations of N.J.A.C. 7:26-2.8(f), the ALJ cited the ongoing process of illegal dumping of c & d material; the potential for public and environmental health problems from this type of hazardous debris; the proximity of a wetlands area to the dumping; the continuing nature of the violation from 1992 through the late 1990's; a lack of compliance after six years of inspections; and the willful, intentional and deliberate nature of Circle Carting's conduct that the ALJ inferred. Thus, the ALJ's determination was not arbitrary and capricious, and was supported by a strong factual foundation. The Commissioner upheld the judge's entire penalty scheme but added two comments, pointing out the ALJ's typographical error towards the end of the decision and recommending site remediation, as discussed below.

VI.

Appellants argue that the NJDEP failed to raise the issue of a site remediation and restoration plan at the ALJ hearing and therefore forfeited its right to seek such a remedy. Although we agree that the ALJ hearing did not encompass the issues of remediation and restoration, we disagree with appellants' contention that the NJDEP forfeited its right to seek such a remedy. Whenever an entity is found in violation of SWMA, the NJDEP has the power to issue an order requiring the entity to comply. N.J.S.A. 13:1E-9b(1). Employing this remedy, the NJDEP ordered Circle Carting to submit a remediation plan to restore the site in the administrative order dated October 17, 2001. Circle Carting did not comply with this order. The NJDEP certainly has the authority and discretion to employ this remedy. See N.J.S.A. 13:1E-9b(1) and 9c (authorizing the Commissioner to order abatement of violations of the Solid Waste Management Act). See also N.J.S.A. 13:1E-103, cited by the Commissioner in his decision (making every owner or operator of a sanitary landfill site jointly and severally liable for remediation).

In his final administrative decision, the Commissioner acknowledged that the issues of remediation and restoration were not addressed during the ALJ hearing, but stated that appellants "never challenged the order to submit a plan in their hearing request[,]" nor was the remediation issue "listed as an issue for consideration in the pre-hearing order."

However, the October 29, 2001 letter from appellants' counsel requesting an administrative hearing on appeal from the provisions of the October 17, 2001 order specifically set forth several defenses, including in paragraph C3 thereof that "[o]ther solid waste that may have been disposed of on the property was disposed of by others over which the [appellants] had no control." And, in paragraph C4, that "they had no obligation to perform remediation of wastes which were landfilled by others." Similar defenses were asserted in paragraphs C5 and C6 of that October 29 letter, although not asserted at the hearing. We also note that the record discloses that at least two other occupiers of the site were also served with notices of violation of the SWMA.

Although it is also true that the issues of remediation and restoration were not specifically delineated in the December 8, 2000 prehearing order issued by the ALJ, that order preceded the October 29, 2001 letter from appellants' counsel, as well as the March 22, 2002 order of consolidation which did not amend the prehearing order or address any substantive issues. Additionally, the December 8, 2000 prehearing order set forth the issues to be litigated in very general terms.

We also note that the Commissioner's March 15, 2004 final decision references paragraph twenty-five of the October 17, 2001 administrative order as requiring remediation of areas damaged by appellants' activities within ninety days. However, our review of paragraph twenty-five of the October 17, 2001 order and the Commissioner's March 15, 2004 final decision discloses that they required remediation and restoration of damage caused by all activities at the site, and was not limited to damage caused by the actions of only the appellants.

Accordingly, we are constrained to remand the matter to the ALJ for a further hearing on the issues of remediation and restoration. In light of our affirmance on all other determinations by the Commissioner contained in his March 15, 2004 final decision, appellants shall forthwith submit to the NJDEP and ALJ their plan of removal, disposal and remediation for further hearing and determination. We leave to the discretion of the Commissioner and ALJ the issue of whether other parties should equitably be joined to these remand proceedings.

With the exception of that portion of paragraph 6 ordering the completion of a remediation and restoration plan within ninety days, the final administrative decision issued by the Commissioner on March 15, 2004, is affirmed. The matter is remanded to the ALJ for further proceedings on the remediation issue consistent with this opinion.

Affirmed and remanded. We do not retain jurisdiction.

 

This provision is contained within the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 to -116. The briefs submitted by parties do not address the issue of applicability of its "jointly and severally liable" provisions to these circumstances.

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December 20, 2005