Court Faults DEP in Changes to Radon Rules

Tom Johnson | November 5, 2018 | Energy & Environment
Appeals court also upholds finding that largest radon testing company in state committed violations

Radon testing
A state appeals court has faulted the Department of Environmental Protection for improperly revising rules on how it oversees companies that test for radon in homes, finding that, in essence, the DEP handed over some of its regulatory functions to firms it oversees.

In a decision handed down on Friday, the court remanded back to an administrative law court many violations the DEP had sought to impose against Radiation Data Inc., including allegations it allowed unqualified persons to test for radon and uncertified persons to perform mitigation jobs. RDI has processed more than 1 million radon tests in New Jersey.

The court, however, backed a former DEP commissioner’s upholding of an administrative judge’s decision finding violations by RDI, the largest radon testing company in the state, involving radon mitigation and sales of radon detection devices.

The case, involving the department’s failure to follow proper rulemaking procedures, mostly focused on its actions to streamline its oversight functions over the business community, a policy aggressively pursued during the Christie administration despite much criticism from environmentalists.

Tests left to home inspection firms

The violations were assessed against RDI after the DEP decided, without following proper administrative procedures, to make policy changes that held firms like RDI responsible for ensuring technicians involved in radon measurement were properly certified.

The new policy led to a massive drop in the number of certified radon measurement businesses in the state, a shift that led many of those tests left to home inspection firms, not necessarily certified to do the work.

In the case, RDI argued successfully it had no control over the hundreds (at one point it used 400, according to an administrative law court) of technicians who left radon-testing cannisters in buildings, since it neither paid wages nor other compensation to those workers.

Delegating regulatory functions

“In effect, what the DEP appears to be doing, is to delegate its own regulatory functions to a private entity as, in effect, a junior partner,’’ the court said. “That delegation of a regulatory responsibility is not permissible under the law.’’

In its 50-page decision, the court did not address the issue of whether the tests and other work performed by individuals who may or may not have been certified raises questions about the validity of the radon testing and mitigation.

A spokesman for the DEP declined comment, deferring questions to the Attorney General’s office. The office did not respond to email questions.

RDI, a firm based in Skillman, did not respond to a call from NJ Spotlight, but its attorney, David J. Singer, said he believes the majority of the tests are probably valid. “None of the violations put the public at risk,’’ he said.

In the court case, RDI argued the department had engaged in improper rulemaking, noting that many of the charged violations were related to tests conducted by “affiliates’’ over whom it had little or no control. The tests sought to measure levels of radon, an odorless gas that seeps into buildings and homes from the breakdown of uranium in soils. It is the second leading cause of lung cancer in the country.

Departure from the rules

RDI and other radon-testing firms started using affiliates after the department, “at some unspecified point in time,’’ according to the court decision began allowing certified technicians “affiliated’’ with a certified radon business without being employed by the latter entity.

That was a departure from the rules adopted after a radon protection law was originally enacted and regulations adopted, which required both the businesses and employees involved in any aspect of radon testing and mitigation to be certified.

According to RDI, as a result of that change, the number of certified radon measurement businesses dropped from more than 300 to just 29, the decision said.

In reviewing the history of the rule, the court found that the department’s regulations were designed to require home inspection companies, which merely purchase the radon tests, place them in buildings and send the samples to a laboratory to be certified as a measurement business.

Violations involving sale of detection devices

“The record suggests that the DEP, has not, at least in recent years, required home inspection firms and other companies who employ radon technicians and specialists to obtain certification from the agency,’’ the court found.

In its defense, the state’s attorneys said the DEP made a “reasonable regulatory choice’’ by seeking to hold certified measurement businesses accountable for the work of affiliates.

Singer argued otherwise. “The regulation was working properly when it was first adopted. They changed their minds. It was impossible to function,’’ he said, referring to overseeing workers not employed by the company.

The court seemed to agree. “It is not obvious how RDI, which pays the measurement technicians no money for their activities, would have the economic leverage to control the quality of their work,’’ the court said.

The case was remanded back to the administrative law court, except for the violations involving radon mitigation and sales of radon detection devices. The judges ruled they now could be subject to penalty enforcement.

Finally, the court advised the DEP to engage in a proper rulemaking process.