Energy & Environment](https://www.njspotlight.com/energy-environment/)
Court Faults DEPin Changes to Radon Rules
TomJohnson](https://www.njspotlight.com/profiles/tjohnson/) | November 5, 2018
Appeals courtalso upholds finding that largest radon testing company in state committedviolations
A state appeals court has faulted the Department ofEnvironmental Protection for improperly revising rules on how it overseescompanies that test for radon in homes,
finding that, in essence, the DEP handed over some of itsregulatory functions to firms it oversees.
In a decision handed down on Friday, the court remanded back toan administrative law court many violations the DEP had sought to imposeagainst Radiation Data Inc.,
including allegations itallowed unqualified persons to test for radon and uncertified persons toperform mitigation jobs. RDI has processed more than 1 million radon tests inNew Jersey.
The court, however, backed a former DEP commissioner’s upholdingof an administrative judge’s decision finding violations by RDI,
the largest radon testing company in the state, involving radonmitigation and sales of radon detection devices.
The case, involving the department’s failure to follow properrulemaking procedures, mostly focused on its actions to streamline itsoversight functions over the business community,
a policy aggressively pursued during the Christie administrationdespite 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 changesthat held firms like RDI responsible for ensuring technicians involved in radonmeasurement were properly certified.
The new policy led to a massive drop in the number of certifiedradon measurement businesses in the state,
a shift that led many ofthose tests left to home inspection firms, not necessarily certified to do thework.
In the case, RDI argued successfully it had no control over thehundreds (at one point it used 400, according to an administrative law court)
of technicians who leftradon-testing cannisters in buildings, since it neither paid wages nor othercompensation to those workers.
Delegating regulatory functions
“In effect, what the DEP appears to be doing, is to delegate itsown regulatory functions to a private entity as, in effect, a junior partner,’’
the court said. “Thatdelegation of a regulatory responsibility is not permissible under the law.’’
In its 50-pagedecision](https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a1777-17.pdf?cacheID=aiebfZo), the court did not address the issue of whether the testsand other work performed by individuals who may or may not
have been certified raises questions about thevalidity of the radon testing and mitigation.
A spokesman for the DEP declinedcomment, deferring questions to the Attorney General’s office. The office didnot 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 atrisk,’’ he said.
In the court case, RDI argued thedepartment had engaged in improper rulemaking, noting that many of the chargedviolations were related to tests conducted by “affiliates’’
over whom it had little or nocontrol. The tests sought to measure levels of radon, an odorless gas thatseeps into buildings and homes from the breakdown of uranium in soils.
It is the second leading cause oflung cancer in the country.
Departure fromthe rules
RDI and other radon-testing firmsstarted using affiliates after the department, “at some unspecified point intime,’’ according to the court decision began allowing certified technicians
“affiliated’’ with a certified radon businesswithout being employed by the latter entity.
That was a departure from therules adopted after a radon protection law was originally enacted andregulations adopted, which required both the businesses and employees involved
in any aspect of radon testing and mitigationto be certified.
According to RDI, as a result ofthat change, the number of certified radon measurement businesses dropped frommore than 300 to just 29, the decision said.
In reviewing the history of therule, the court found that the department’s regulations were designed torequire home inspection companies,
which merely purchase the radontests, place them in buildings and send the samples to a laboratory to becertified as a measurement business.
Violationsinvolving sale of detection devices
“The record suggests that theDEP, has not, at least in recent years, required home inspection firms andother companies who employ radon technicians and specialists to obtaincertification from the agency
,’’ the court found.
In its defense, the state’s attorneyssaid the DEP made a “reasonable regulatory choice’’ by seeking to holdcertified measurement businesses accountable for the work of affiliates.
Singer argued otherwise. “Theregulation was working properly when it was first adopted. They changed theirminds. It was impossible to function,’’
he said, referring to overseeing workers notemployed by the company.
The court seemed to agree. “It isnot obvious how RDI, which pays the measurement technicians no money for theiractivities,
would have the economic leverageto control the quality of their work,’’ the court said.
The case was remanded back to theadministrative law court, except for the violations involving radon mitigationand sales of radon detection devices.
The judges ruled they now could be subject topenalty enforcement.
Finally, the court advised theDEP to engage in a proper rulemaking process.