N.J. Dep't of Envtl. Prot. v. Radiation Data, Inc.

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Petitioner-Respondent, v. RADIATION DATA, INC., Respondent-Appellant

DOCKET NO. A-1777-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 9, 2018

November 2, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino, Haas and Sumners.

On appeal from the New Jersey Department of Environmental Protection, Docket Nos. ECE 9903-10, ECE 9904-10, ECE 9905-10, ECE 9908-10, EER 8829-10, EER 8833-11, EER 1216-13, EER 15876-14, and EER 0798-15.

David J. Singer argued the cause for appellant (Vella, Singer and Associates, PC, attorneys; David J. Singer and Lisa M. Leili, of counsel and on the brief).

William R. Lamboy, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; William R. Lamboy, on the brief).

PER CURIAM

Radiation Data, Inc. ("RDI") appeals from a November 1, 2017 final agency decision of the Commissioner of the Department of Environmental Protection ("DEP"), which found RDI liable for violating several DEP regulations that govern radon measurement and mitigation activities in New Jersey. RDI is the largest radon measurement business in the State. The Commissioner's final decision followed proceedings before two successive Administrative Law Judges ("ALJs").

On appeal, RDI principally argues the DEP Radon Section, which administers the State's radon program, is wrongfully imposing regulatory standards upon RDI without adopting those standards through a formal rulemaking process as prescribed by the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 to -15.

Among other things, RDI contends the DEP has deviated in recent years from the text and original stated intent of the radon measurement regulations. RDI asserts the DEP has done so by: (1) deeming RDI responsible for approximately 450 so-called "affiliate" technicians in the field whom RDI does not employ, pay, or control; and (2) refusing to hold accountable the homeinspection businesses and perhaps other companies who actually employ such field workers. RDI contends it is impossible, or at least infeasible, for it to adhere to the DEP's mandates, given its lack of effective control over the field workers as well as the constraints of market competition.

RDI further argues the DEP is impermissibly enforcing a "Guidance Document" concerning quality assurance and control plans as a mandatory rule, without undertaking necessary public notice and comment.

RDI asserts a wide range of other factual and legal arguments contesting the agency's findings of violations.

For the reasons that follow, we affirm the Commissioner's final agency decision in part, reverse and remand it in part, and urge the DEP to engage in appropriate prospective rulemaking in accordance with the APA and Metromedia, Inc. v. Dir., Division of Taxation, 97 N.J. 313, 329 (1984).¹

I.

Our analysis of this appeal first requires a preliminary discussion of radon gas detection and mitigation, and the State's overall regulatory scheme.

A. Radon Background

Radon is a colorless, odorless, radioactive gas that derives from the natural breakdown of uranium in soils. Radon gas can infiltrate homes and other buildings through their foundations and then accumulate. It is recognized as the second leading cause of lung cancer.

No level of radon exposure is considered entirely safe. The United States Environmental Protection Agency ("EPA") has set 4.0 picocuries per liter (pCi/l) as the "action level" for radon, meaning the level at which mitigation of the gas should be considered. Radon tests are often conducted in connection with residential real estate sales, commonly as part of the home inspection process.

If necessary, mitigation systems can be installed to decrease the level of radon in a building. This is typically done by drilling a hole in the building's foundation and installing a pipe, which, as one witness described it, is "extended either up through the house, through the attic and then through the roof or that pipe would be curved out on an outside wall . . . draw[ing] all of the gases that are underneath the slab and venting them to the outside."

B. Statutory and Regulatory Background

In order to ensure that radon testers "use procedures and equipment which would provide scientifically accurate results," the Legislature in 1986 enactedthe Radiation Protection Act (the "RPA" or the "Act"), N.J.S.A. 26:2D-1 to -89. See S. Energy and Env't Comm., Statement to S. 1797 (Mar. 6, 1986). The Act requires the DEP to "establish a program for the certification of persons who test for the presence of radon gas and radon progeny in buildings," and a certification program for "persons who mitigate, and safeguard buildings from, the presence of radon gas and radon progeny." N.J.S.A. 26:2D-70, -71.

The RPA forbids uncertified persons from testing for or mitigating radon gas unless they are performing testing or mitigation on a building they own or are performing a radon test without remuneration. N.J.S.A. 26:2D-72. The statute also requires certified persons to disclose the results of the tests performed to the DEP. N.J.S.A. 26:2D-74. The Act includes a confidentiality provision barring disclosure of the address or owner of a nonpublic building, with some exceptions, outside of the DEP, and the State Department of Health. N.J.S.A. 26:2D-73.²

Notably for this appeal, the Act authorizes the DEP to "adopt rules and regulations to implement the provisions of [the Act]." N.J.S.A. 26:2D-76. Persons performing radon testing or mitigation without the requiredcertifications or failing to report results to the DEP and keep them confidential are guilty of a crime of the third degree. N.J.S.A. 26:2D-77. The statute allows the DEP to levy penalties of up to $2,500 for each violation of provisions of the Act or any rule, regulation or order promulgated pursuant to the Act. N.J.S.A. 26:2D-13. The DEP can settle claims or penalties, or collect them "in a civil action by a summary proceeding under 'the penalty enforcement law.'" Ibid. (citing N.J.S.A. 2A:58-1 to -12).

Since the Act does not specify regulatory penalties, the present case only involves whether RDI is liable for violations of the regulations, and does not concern the amount of any penalties. If the violations are upheld, the DEP will need to pursue a penalty action in the trial court to collect any penalties.

The DEP promulgated regulations initially in 1990 governing the certification of persons for radon testing and mitigation pursuant to this statutory mandate. N.J.A.C. 7:28-27.1 to -27.35. See 22 N.J.R. 3516(a) (Nov. 19, 1990). The regulations have been periodically renewed, most recently in 2013. 45 N.J.R. 1400(a) (June 3, 2013). The regulations are structured so that persons³ conducting radon testing must be approved by the DEP as either certified radonmeasurement "specialists" or certified radon measurement "technicians." N.J.A.C. 7:28-27.9 to -27.14. Similarly, persons performing mitigations must be approved by the DEP as either certified radon mitigation specialists or a certified radon mitigation technicians. N.J.S.A. 7:28-27.15 to -27.20. Generally, specialist certification requires more education and is more difficult to obtain than technician certification. Compare N.J.A.C. 7:28-27.9 with N.J.A.C. 7:28-27.12. Certification as a specialist qualifies an individual as a technician. N.J.A.C. 7:28-27.9(b); -27.15(b). Specialists can perform additional functions which technicians cannot perform. See e.g., N.J.A.C. 7:28-27.5(a)(1), -27.7(d).

A company such as RDI offering both measurement and mitigation services must be approved by the DEP as a certified measurement business and as a certified mitigation business.⁴ See N.J.A.C. 7:28-27.5, -27.7. Certified measurement and certified mitigation businesses are "responsible for any violation of the ACT committed by an employee in the scope of his or heremployment. This responsibility shall be joint and several." N.J.A.C. 7:28-27.29 (emphasis added).

The DEP's Radon Section administers this regulatory system. The regulations require certified parties to remain in compliance with the Act and regulations set forth in N.J.A.C. 7:28-27.1 to -27.35. N.J.A.C. 7:28-27.3(b). Parties can appeal the DEP's certification denial, refusal to renew, or revocation by requesting an adjudicatory hearing. N.J.A.C. 7:28-27.27(a). For all of these certification categories, the business or person must reapply for certification annually. N.J.A.C. 7:28-27.22.

C. Radon Measurement Businesses, Specialists, and Technicians

A certified radon measurement business is a commercial business enterprise certified "to sell devices or test for radon and/or radon progeny." N.J.A.C. 7:28-27.2. In order to be certified, a measurement business must "maintain on staff or retain as a consultant a certified radon measurement specialist." N.J.A.C. 7:28-27.5(a). This specialist is charged, among other things, with directing the measurement activities of the business, and "shall sign and be responsible for the review, approval, and verification of the reports" on radon tests. N.J.A.C. 7:28-27.5(a)(1). The business must also at all times have a certified mitigation technician on staff. N.J.A.C. 7:28-27.5(i).

Certified radon measurement specialists are persons certified "to perform and/or evaluate radon and/or radon progeny measurements for a certified radon measurement business." N.J.A.C. 7:28-27.2 (emphasis added). In their application to the DEP for certification, specialists must include "[a] list of all certified radon measurement businesses for which the applicant will be a certified radon measurement specialist." N.J.A.C....