The Decision: https://dep.nj.gov/wp-content/uploads/decisions/docs/ece02465-21-final.pdf
Partner Brian W. Keatts, Esq. and the law firm of Davison Eastman Munoz Paone, P.A. recently secured a victory on behalf of its client, a property preservation company, before the NJDEP Commissioner, who issued a Final Decision affirming the Initial Decision by the Office of Administrative Law finding that the client did not require an A901 license. The DEP had issued notices to the client seeking to hold it responsible for obtaining an A901 license and a certificate of public convenience as a “prime contractor” and a “broker” under the Solid Waste Management Act (“SWMA”) and the Solid Waste Utility Control Act (“SWUCA”), respectively. Among the key findings by the DEP Commissioner:
- A “prime contractor” must enter a contract with the generator of the waste to be collected or disposed, and there was an absence of evidence that the client contracted with any waste generator.
- The “broker” definition in place at the time of the services was the prior SWMA regulatory definition, which specifically stated a broker is “any person, not registered with the Department….” The DEP Commissioner concluded that this definition means that no license was required at the time. Though the definition was amended following the dates in question, the DEP Commissioner determined that the new definition cannot be retroactively applied.
- The Commissioner recognized the fact that the SWCA (the “certificate of public necessity” requirement) does not contain any reference to “brokers.”
- The client did not “engage in the business of solid waste” as a result of its property preservation services simply by hiring a vendor to perform clean out services of a property.
Should you have an issue involving the DEP, whether it be a licensing issue, land use question or an eminent domain matter, please do not hesitate to reach out to attorney Brian Keatts and/or the attorneys at DEMP.
