Here are some snippets:
16. On February 17, 1989, in response to applications, the Department issued to Mr. Gromicko and his company, Sunn Radon Company (also known as Sunn Corporation and hereinafter referred to as Sunn Radon), an individual and firm certification (respectively) to perform radon mitigation services. Mr. Gromicko was the certified individual responsible for Sunn Radon’s radon mitigation services. On or around the same date, a certification to perform radon testing services was issued to Mr. Gromicko as an individual. (Stipulation No. 19)
17. On September 25, 1989, in response to an application, the Department issued to Sunn Radon a firm certification to perform radon testing services. Mr. Gromicko was the certified individual responsible for Sunn Radon’s radon testing services. (Stipulation No. 20)
*18. On February 3, 1993, in response to applications, the Department issued to Mr. Gromicko and Sunn Radon both individual and firm renewal certifications to perform radon testing and mitigation services in Pennsylvania. (Stipulation No. 21) On March 8, 1995, in response to applications, the Department issued to Mr. Gromicko and Sunn Radon both individual and firm **renewal *certifications to perform radon testing and mitigation services. (Stipulation No. 22)
19. In each of these applications, Mr. Gromicko represented to the Department that he would be the certified individual responsible for Sunn Radon’s proper performance of radon testing and mitigation services, and that such services would be performed in accordance with required standards and protocols. (Stipulation No. 23)
20. Mr. Gromicko’s individual testing and mitigation certifications were in effect until March 8, 1997, pursuant to 25 Pa. Code § 240.202. (Stipulation No. 24)
21. Mr. Gromicko was responsible for the proper installation of all radon mitigation systems installed by Sunn Radon and was the sole certified radon mitigation installer in responsible charge of mitigation activities for Sunn Radon from at least December 15, 1991 through at least March 5, 1996. (Stipulation No. 25; N.T. 57-58)
22. On January 8, 1998, Mr. Gromicko submitted an application to the Department’s Radon Division to again become certified to perform radon testing. At the time of this application, Mr. Gromicko was not certified to perform any radon services. (Stipulation No. 26) (Why not, Nick. Apparently, because they’d pulled your certifications because you then…)
23. Because Mr. Gromicko’s application represented that he had never received any notices of violation from the Department, and Department personnel knew of some violations, (Usually, when you don’t respond to a violation notice, the agency involves pulls ones certification. Can you think of any other reason that when you went to renew they would have said you couldn’t renew because you didn’t have an active certification and why you would have claimed you’d never received any violation notices as a defense.) the Department determined that a careful review of Mr. Gromicko’s compliance history was appropriate in its review of Mr. Gromicko’s 1998 application for certification to perform radon testing. (N.T. 168-176)
24. In a review of a certification application, the Department evaluates the applicant’s competency, experience, quality assurance/quality control programs, worker safety programs, compliance status and compliance history. (N.T. 158-159)
25. In its administration of the radon certification program, the Department interprets 25 Pa. Code § 240.201 as:
a. requiring the Department to deny any radon certification application unless the applicant affirmatively demonstrates a satisfactory compliance status in that the applicant has no current and uncorrected violations of the Radon Certification Act or Chapter 240 of the Department’s regulations (N.T. 190-192); (I don’t know. Seems to me, denial for non-compliance, is the same as pulling a license; but I guess that’s just me.)
b. authorizing the Department to deny certification to a person who has shown an unsatisfactory compliance history, meaning a lack of ability or intention to comply with the Radon Certification Act or Chapter 240 of the Department’s regulations based upon the seriousness and repetition of violations, even if all such violations have been previously corrected (uh, huh) (N.T. 162, 191-192); and
c. requiring the Department to consider an applicant’s compliance status and history with regard to radon mitigation services, even when the application requests certification for radon testing. (N.T. 187-188)
26. Mr. Gromicko admitted that persons who repeatedly install radon mitigation systems in violation of specifications required by law should not be certified by the Department to perform any radon services. (So, you admitted that they had a right to deny your certification renewal.) (Ex. C-6, Request for Admissions, ¶ 16) The term “radon services” is understood by Mr. Gromicko to refer to both radon testing and radon mitigation services. (N.T. 56)
34. On September 23, 1998, the Department sent to Mr. Gromicko a letter denying his testing certification application (Denial of Certification). The Department’s action was based upon, among other things, a determination that Mr. Gromicko had failed to demonstrate affirmatively that he was in compliance with the Radon Certification Act and Chapter 240 of the Department’s regulations pursuant to 25 Pa. Code § 240.201(a), and that Mr. Gromicko had shown an inability or unwillingness to comply pursuant to 25 Pa. Code § 240.201(b). (N.T. 189-192; Ex. C-14)
35. The denial of Mr. Gromicko’s application was directed by Michael Pyles, Chief of the Department’s Radon Division, and was the first application ever denied by the Radon Division for compliance deficiencies. (N.T. 150, 159) (Wow, Nick was so anxious to be the first to do everything that he was even the first person ever to have their radon certification denied by the State of Pennsylvania.)
50. All of the mitigation systems located in the 31 residences listed in the Department’s Amended Denial Letter had been originally installed with the same deviations from the Mitigation Protocols which existed at the time of the Department inspections. (N.T. 282, 371-372)
51. Mr. Gromicko has not contacted the owners of the residence listed in the Amended Denial Letter, nor inspected the radon mitigation systems in said residences, nor caused the systems to have been repaired. (Stipulation No. 33; N.T. 79-80) The increased risks to the health of the occupants of these residences caused by the non-compliant mitigation systems may have continued even at the time of the hearing. (N.T. 82)
52. Mr. Gromicko’s actions in causing or allowing these violations constituted at least negligent conduct because Mr. Gromicko was well aware of the installation requirements (N.T. 39), of his obligation to comply with them (N.T. 59), of the potential adverse health consequences to the public for violating them (N.T. 59-60), and had represented to the Department in his applications that he would comply with them. (N.T. 62-63)
53. Mr. Gromicko has demonstrated a lack of ability or intention to comply with the Act and its regulations based upon the number and seriousness of violations found, his responsibility for these violations, the potential adverse health consequences to the public resulting from these violations and Mr. Gromicko’s failure to investigate or correct the violations.
*54. The Appellant’s lack of ability or intention to comply with the law relating to radon mitigation services is relevant and material to the Department’s determination that it should not approve his application to perform radon testing services. *
55. The Department must rely on a certified person’s intention and ability to comply with the law because it is unable to inspect more than a small percentage of the results of radon protection services performed by certified persons. The results of a failure to perform those services properly present significant risks to the public health. (Ooooo’K)
Mr. Gromicko has the burden of proof to demonstrate that the Department erred in the denial of his certification application.**[5]](http://ehb.courtapps.com/corpus/04-27-2000.98199.html#_ftn5)* 25 Pa. Code § 1021.101©(1). The Department has the burden of proof in the assessment of the civil penalty. 25 Pa. Code § 1021.101(b)(1). The Department’s evidence tended to show that: (1) Mr. Gromicko was in responsible charge for Sunn Radon’s work from December 15, 1991 through October 10, 1996; (2) Sunn Radon installed the radon mitigation systems at all of the 31 residences listed in the Amended Denial Letter; and (3) the systems inspected by the Department were installed in violation of the Mitigation Protocols. Mr. Gromicko’s primary contention is that the Department should not have denied his application for radon testing certification based on prior radon mitigation services. (Notice of Appeal, ¶ 1; Appellant’s post-hearing brief, ¶ 1) He also asserts that the systems were installed by his assistant, Mr. Dan Mills, who allegedly stole customers from him. His assertion that the installations occurred too long ago to be the basis for any violation and his claim that the homeowners caused the deficiencies will be discussed in more detail below.* (So, it’s always the other guy. Didn’t mama ever teach you how to take responsibility for your actions?)
*Mr. Gromicko claims that the variances from the requirements of the regulations relied upon by the Department as violations for purposes of denying his application and for purposes of assessing a penalty cannot be attributed to him. He claims that the systems involved in these violations were installed by others at Sunn Radon, in some cases by his principal assistant at Sunn Radon, Mr. Dan Mills. (N.T. 448-450). Indeed, he testified that Mr. Mills had stolen potential customers from him by intercepting telephone calls from potential customers who called Mr. Gromicko. (N.T. 450-451) He also maintains that none of the claimed violations can be attributed to him after March 7, 1996–the date he claims he sold the business of Sunn Radon to Mr. Mills. (N.T. 69-71) This contention ignores Mr. Gromicko’s responsibility as the one certified installer at Sunn Radon until at least October 10, 1996. *
Firms may become certified to perform radon services so long as radon services performed by the firm are performed under a certified individual’s supervision. 25 Pa. Code §§ 240.102(b) (testing) and 240.112(b) (mitigation). The certified individual remains responsible for the proper performance of services by all persons working under his or her supervision. Id. (Stipulation No. 6; N.T. 158) The term “radon services” is generally understood to include testing for radon, laboratory analysis of testing devices, and mitigation of radon. Generally, a person may not perform commercial radon services within Pennsylvania unless he/she or the firm for which he/she works has a current certification from the Department. 63 P.S. § 2006. (Stipulation No. 4)
*On February 17, 1989, in response to applications, the Department issued to Mr. Gromicko and his company, Sunn Radon Company (also known as Sunn Corporation and hereinafter referred to as Sunn Radon), an individual and firm certification (respectively) to perform radon mitigation services. Mr. Gromicko was the certified individual responsible for Sunn Radon’s radon mitigation services. On or around the same date, a certification to perform radon testing services was issued to Mr. Gromicko as an individual. (Stipulation No. 19) On September 25, 1989, in response to an application, the Department issued to Sunn Radon a firm certification to perform radon testing services. Mr. Gromicko was the certified individual responsible for Sunn Radon’s radon testing services. (Stipulation No. 20) On February 3, 1993, in response to applications, the Department issued to Mr. Gromicko and Sunn Radon both individual and firm renewal certifications to perform radon testing and mitigation services in Pennsylvania. (Stipulation No. 21) On March 8, 1995, in response to applications, the Department issued to Mr. Gromicko and Sunn Radon both individual and firm renewal certifications to perform radon testing and mitigation services. (Stipulation No. 22) *
In each of these applications, Mr. Gromicko represented to the Department that he would be the certified individual responsible for Sunn Radon’s proper performance of radon testing and mitigation services, and that such services would be performed in accordance with required standards and protocols. (Stipulation No. 23) Mr. Gromicko’s individual testing and mitigation certifications were in effect until March 8, 1997, pursuant to 25 Pa. Code § 240.202. (Stipulation No. 24)
*We therefore reject Mr. Gromicko’s contention that he cannot be held responsible for these violations. Mr. Gromicko’s testimony and the Stipulation of facts establish that Mr. Gromicko was legally responsible for the proper installation of all radon mitigation systems installed by Sunn Radon as the sole certified radon mitigation installer in responsible charge of mitigation activities for Sunn Radon from at least December 15, 1991, the date when the Mitigation Protocols became mandatory, through at least March 6, 1996, the day before he closed on the sale of the business to Mr. Mills according to his testimony. *
*The Department’s evidence also establishes that Mr. Gromicko remained in responsible charge for the mitigation work through at least October 10, 1996. October 10, 1996 is the date when Mr. Dwight Shearer, a Department inspector, testified that he met with Mr. Gromicko along with Department inspector Mr. Howard Sher and Mr. Mills at the offices of Sunn Radon. This was supported by an entry in Mr. Shearer’s 1996 calendar. (N.T. 387-388) Mr. Shearer testified that Mr. Gromicko explicitly stated that he was going to remain the certified individual in charge of Sunn Radon’s mitigation work until another Sunn employee gained their own mitigation certification. (N.T. 388-389) *
In light of credible testimony from two of the Department’s inspectors and in absence of any evidence refuting this testimony, Mr. Gromicko remained in responsible charge for the mitigation activities performed by Sunn Radon from December 15, 1991 through at least October 10, 1996. Three of the systems listed in the Department’s Amended Denial Letter were installed by Sunn Radon between March 6, 1996 and October 10, 1996; however, the Department did not assess a civil penalty for these systems. (Ex. C-15, C-17)
At one point during the hearing, Mr. Gromicko testified that he recognized his own handiwork for at least 10 of the 12 mitigation systems depicted on a videotape, meaning that those systems were in fact installed by Mr. Gromicko. (N.T. 80-82; Ex. 44) Mr. Gromicko later changed his testimony, suggesting that the work might have been performed outside of Sunn Radon’s employment by Sunn Radon’s employee, Mr. Mills, who knew and used Mr. Gromicko’s installation methods. (Spin, spin, spin)
owners of nine of these systems testified in deposition that they either recognized photographs of Mr. Gromicko (Ex. C-48, C-60) or had kept invoices and/or promotional materials from Sunn Radon. (???)
Mr. Gromicko failed to present any documentary evidence that might confirm his claim that he was not in responsible charge after March of 1996. Mr. Gromicko admitted that he never advised the Department that he was no longer the person responsible for Sunn Radon’s radon activities. (N.T. 447) During the hearing, Mr. Gromicko failed to introduce any documentation of the sale of his business or any evidence which indicates that he was not the responsible person in charge of Sunn Radon after March of 1996. (Jeez, seems like it would have been so simple just to produce the sale contract and the whole mess might have been avoided or at least the fine would have been less.)
We also reject Mr. Gromicko’s contention that he was treated unfairly because the Department ordered him to transfer his records to the new owner of the firm. He claims that as a result, the Department is punishing him for failing to produce evidence found in those records. (Appellant’s post-hearing brief, ¶¶ 4, 5) Upon the sale of Sunn Radon by Mr. Gromicko to Mr. Mills, Mr. Gromicko requested guidance from the Department as to the proper custodian for the company’s mitigation records. (N.T. 389-390) Department representatives suggested that the company and its new owner should retain the records since customers would most likely contact Sunn Radon rather than Mr. Gromicko as an individual if problems arose. (N.T. 23-24, 27-29) Nothing prevented Mr. Gromicko from retaining copies of his records or subpoenaing Mr. Mills to attend the hearing before the Board. There is no evidence to suggest that the Department either issued him an order to surrender custody of the records or threatened to sanction Mr. Gromicko with respect to the documents or that the Department took custody of the records. (N.T. 24, 88-89)
Neither Mr. Gromicko’s Notice of Appeal of the Civil Penalty Assessment nor his Pre-Hearing Memorandum raise any challenge to the reasonableness of the amount of the Civil Penalty Assessment. He has consequently waived any claim that the Department abused its discretion in assessing this penalty amount. Gasbarro v. DEP, 1998 EHB 1264. Taking into account the seriousness of the violations, Mr. Gromicko’s culpability, and health and safety risks to members of the public, the Department has demonstrated the reasonableness of the civil penalty amount. Accordingly, we affirm the Department’s Civil Penalty Assessment of $14,576 and find the following:
CONCLUSIONS OF LAW
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1. The burden of proof in an appeal of the Department’s denial of an application for radon testing certification rests with the Appellant. 25 Pa. Code § 1021.101(c)(1).*
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2. An individual who is certified to perform radon mitigation services by the Department, and agrees to be the sole certified individual pursuant to a firm’s certification application, is responsible for mitigation violations of the Radon Certification Act and 25 Pa. Code Chapter 240 committed by the firm. 25 Pa. Code § 240.112(b).*
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3. A radon certification application will not be approved unless the applicant affirmatively demonstrates to the Department’s satisfaction that the applicant is not in violation of the Radon Certification Act or Chapter 240 of the regulations. 25 Pa. Code § 240.201(a)(1). *
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4. Certification may also be denied to a person who has shown a **lack of ability** or **intention** to comply with the Radon Certification Act, the Radiation Protection Act, or Chapter 240 of the regulations, as indicated by past or continuous conduct. 25 Pa. Code § 240.201(b).*
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5. The Department’s action in denying a radon certification application will be upheld where, as here, the Department has reasonably determined that the applicant has shown an unwillingness or inability to comply with the Radon Certification Act and 25 Pa. Code Chapter 240 through repeated violations of mitigation systems specifications despite the applicant’s knowledge of the specifications. 25 Pa. Code § 240.201(b).*
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6. The burden of proof in an appeal of the Department’s Civil Penalty Assessment rests with the Department. 25 Pa. Code § 1021.101(b)(1).*
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7. The Appellant failed to assert any challenge to the reasonableness of the amount of the Civil Penalty Assessment in either his Notice of Appeal or Pre-hearing Memoranda. Gasbarro v. DEP, 1998 EHB 1264.*
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8. Considering the Department’s evidence of the number and nature of the Appellant’s violations of the Mitigation Protocols and of the Radon Certification Act and its regulations, the Department has sufficiently met its burden of demonstrating that the Civil Penalty Assessment of $14,576 is reasonable.*
*Accordingly, we enter the following: *
AND NOW, this 27th day of April, 2000, it is hereby ordered that the Appellant’s appeal is DISMISSED. It is further ordered that the Appellant shall pay civil penalties in the amount of $14,576.
[FONT=Verdana]*ENVIRONMENTAL HEARING BOARD
GEORGE J. MILLER
Administrative Law Judge
Chairman*[/FONT]
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[FONT=Verdana]THOMAS W. RENWAND
Administrative Law Judge
Member[/FONT]
[FONT=Verdana][/FONT]
[FONT=Verdana]MICHELLE A. COLEMAN
Administrative Law Judge
Member[/FONT]
[FONT=Verdana][/FONT]
[FONT=Verdana]BERNARD A. LABUSKES, JR.
Administrative Law Judge
Member[/FONT]
[FONT=Verdana][/FONT]
[FONT=Verdana]MICHAEL L. KRANCER
Administrative Law Judge
Member[/FONT]
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[FONT=Verdana]DATED: April 27, 2000[/FONT]
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[FONT=Verdana]Looks like, according to this panel of administrative law judges, you were the person responsible, despite your assertion to the contrary and they considered the fine perfectly valid.[/FONT]
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[FONT=Verdana]Of course, we all know that, being Nick Gromicko, you’re above the law. Right?[/FONT]
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[FONT=Verdana]ONE TEAM - ONE FIGHT!!![/FONT]
[FONT=Verdana][/FONT]
[FONT=Verdana]Mike O’Handley, LHI[/FONT]
[FONT=Verdana]Your Inspector LLC.[/FONT]
[FONT=Verdana]Kenmore, WA 98028[/FONT]
[FONT=Verdana]Wa. Lic. Home Inspector #202[/FONT]
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