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NICKIFOR N. GROMICKO, JR. |
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v. |
EHB Docket No. 98-199-MG |
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(consolidated with
99-128-MG) |
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COMMONWEALTH OF PENNSYLVANIA, |
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DEPARTMENT OF ENVIRONMENTAL |
Issued- April 27, 2000 |
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PROTECTION |
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Synopsis:
The Board affirms the Department’s denial of the Appellant’s application for a radon testing certification based on violations in his conduct in performing mitigation services which demonstrate a lack of ability or intention to comply with the Radon Certification Act[1] and its regulations. The Board affirms the Department’s civil penalty assessment amount of $14,576 for 30 violations in the installation of mitigation systems at 12 residences based upon the number and seriousness of violations found, the Appellant’s negligence in permitting these violations, the potential adverse health consequences to the public resulting from these violations and the Appellant’s failure to investigate or correct the violations.
In January of 1998, the Department of Environmental Protection’s (Department) Radon Division received an application from Mr. Nickifor Gromicko, Jr. to become certified to perform radon testing. From 1989 through 1996, Mr. Gromicko and his company, Sunn Radon, had been certified to perform radon testing and radon mitigation work in Pennsylvania. Past complaints and unsatisfactory inspections regarding Mr. Gromicko’s work caused the Department to undertake an investigation into Mr. Gromicko’s compliance status and compliance history following receipt of Mr. Gromicko’s radon testing application. 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 affirmatively demonstrate 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 in accordance with the Act or the Department’s regulations at 25 Pa. Code § 240.201(b).
On May 20, 1999, the Department sent to Mr. Gromicko a Proposed Civil Penalty Assessment. On June 1, 1999, following Mr. Gromicko’s refusal to discuss or negotiate the Proposed Civil Penalty, the Department issued to Mr. Gromicko a Civil Penalty Assessment. (N.T. 194-195; Ex. C-16) The assessment was issued pursuant to Section 2012(a) of the Radon Certification Act, 63 P.S. § 2012(a), Section 308 of the Radiation Protection Act, 35 P.S. § 7110.308(e) and Section 240.402 of the Department’s regulations. 25 Pa. Code § 240.402. (Ex. C-17) The Department originally assessed a $17,662 civil penalty for 30 violations at 12 residences.
These proceedings consolidate both the pro se appeal from the denial by the Department of the Appellant’s application for renewal of his radon testing certificate and an enforcement action brought by the Department against the Appellant involving a penalty assessment of $17,662 for improper installation of radon mitigation equipment at residences serviced by the Appellant.[2] At the hearing on the merits held before Administrative Law Judge George J. Miller on October 26, 1999, the Department informed the Board that it had recalculated its civil penalties and requested an affirmance of $14,576.
The record consists of post-hearing and reply briefs filed by both parties, a transcript totaling 291 pages and an excess of 90 exhibits.[3] After a full and complete review of the record, we make the following:
1. The Department is an agency with the duty and authority to administer and enforce the Radon Certification Act, 1987, July 9, P.L. 238, No. 43, 63 P.S. §§ 2001-2014; the Radiation Protection Act, 1984, July 10, P.L. 688, No. 147, 35 P.S. §§ 7110.101-7110.703; Section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 510-517 (Administrative Code); and the rules and regulations (rules and regulations) promulgated thereunder. (Board Exhibit 1, Stipulation of the Parties, ¶ 1)[4]
2. Appellant Nickifor N. Gromicko, Jr. is an individual with a business address of 501 Eland Avenue, c/o Peach Home Inspections, Phoenixville, Pennsylvania 19460.
3. In 1987, the General Assembly determined that radon levels in public and private buildings can present a significant health risk to occupants, and passed the Radon Certification Act (63 P.S. § 2001-2014. (Stipulation No. 2) Exposure to radon gas can cause lung cancer in human beings. (Stipulation No. 3)
4. The Radon Certification Act, and regulations promulgated thereunder, 25 Pa. Code Chapter 240, mandates a certification program for individuals and firms engaging in:
a. radon testing services (the examination of buildings for the presence of radon such as the radioactive gas Radon-222 and the short-lived radio nuclides which are products of Radon-222 decay);
b. radon laboratory analyses (the testing of radon concentrations in air, water or soil); and
c. radon mitigation services (the repair or alteration of a building to reduce indoor radon concentrations). (Stipulation No. 5)
5. 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)
6. 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)
7. Radon gas can migrate into a home from soils beneath the home through spaces or cracks in the foundation. Generally, radon mitigation is recommended where radon levels inside a home exceed EPA guidelines. Radon mitigation typically involves the installation of equipment such as a fan and piping to reduce radon concentrations inside a structure. (Stipulation No. 7; N.T. 127-132)
8. Most commonly, residential radon mitigation systems consist of installed basement piping which draws radon gas from beneath the structure’s foundation to an outdoor vent by means of a fan. Such a system is referred to as a “depressurized” system because the fan creates negative pressure or suction beneath the foundation. (Stipulation No. 8)
9. The concentration of radon gas collected from beneath a structure and exhausted through a depressurization system vent is much higher than the concentration of radon gas inside the structure. (Stipulation No. 9) Human health is put at risk when radon gas drawn from beneath a structure is allowed to re-enter the structure through a door or window, or when vented near the ground level. (N.T. 59)
12. The Mitigation Protocols specified, among other things, that mitigation systems must be installed:
a. With a monitor or warning device attached and plainly visible to the occupants which would notify the occupants in the event that the system ceased to operate correctly.
b. With labels attached and plainly visible which would identify the equipment as a radon mitigation system, identify the installer by name and telephone number, and identify the power shut-off switch to prevent inadvertent disconnection of the system by the occupant.
c. With discharge vents for depressurized systems located more than a specified distance from the ground, walkways, or re-entry points, such as doors and windows in the mitigated structure or surrounding structures. (Stipulation No. 13)
13. Radon mitigation systems installed in violation of Section 5.4 of the Mitigation Protocols which require a plainly visible mechanism to monitor system performance, present a heightened risk of health dangers to individuals because without a visible monitor, persons inhabiting the structure will be less likely to realize and take corrective action in the event that the mitigation system ceases to function properly. (Stipulation No. 14; N.T. 59, 133-134)
14. Radon mitigation systems installed in violation of Section 5.5 of the Mitigation Protocols, which require placement of an identifying label on the system power or disconnect switch, present a heightened risk of health danger to individuals because without a label, persons inhabiting the structure will be more likely to inadvertently turn off the system, thereby allowing an increase in the levels of radon gas. (Stipulation No. 15) Without proper labeling, a plumber or contractor could mistake radon pipe for plumbing pipe and inadvertently impair the functioning of the system. (N.T. 60-61)
15. Radon mitigation systems installed in violation of Section 5.7 of the Mitigation Protocols which require exhaust vents from depressurization system fans to be ten feet or more above ground level from any window, door or other opening in the structure and from any public or private access present an increased risk of health dangers to individuals because at a lesser distance, elevated concentrations of radon gas are more likely to be breathed by persons on the ground or in the structure. (Stipulation Nos. 16-18; N.T. 59)
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)
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, 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);
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 (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. (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)
27. Following Mr. Gromicko’s 1998 application for certification for radon testing only, the Department could not as a practical matter evaluate Mr. Gromicko’s past compliance with the Radon Certification Act and its regulations by examination of his prior testing services. After a radon test, little physical evidence remains from which to evaluate a tester’s compliance with proper procedures. (N.T. 163-164)
28. Mitigation systems previously installed by Mr. Gromicko, however, could be later evaluated for compliance with the radon regulations and mandated Mitigation Protocols in effect at the time of installation by examining the installations made by Mr. Gromicko. The Department therefore began an evaluation of Mr. Gromicko’s compliance status and history with the Radon Certification Act and Chapter 240 of the Department’s regulations by evaluating his prior radon mitigation work. (N.T. 176-177)
29. Mr. Gromicko was responsible for the proper installation of all radon mitigation systems installed by Sunn Radon, not only between December 25, 1991 and March 5, 1996 (as stipulated by Mr. Gromicko), but also through at least October 10, 1996. Mr. Gromicko confirmed this to Department representative, Mr. Dwight Shearer, at a meeting on October 10, 1996 and never advised the Department that he was no longer in responsible charge for Sunn Radon. (N.T. 387-388, 447) Between March 6 and October 10, 1996, Sunn Radon installed three of the systems listed in the Department’s Amended Denial Letter: 121 Avery’s Way, 207 Autumn Hill Drive and 716 Reiser Court. (Ex. C-15) The Department did not assess a civil penalty for these systems. (Ex. C-17)
30. Mr. Gromicko’s company, Sunn Radon, submitted reports to the Department for residences mitigated by Sunn Radon during its years of certification. In accordance with the Department’s regulations, certified mitigators are required to submit data to the Department whenever radon mitigation services are provided. (25 Pa. Code § 240.303; N.T. 177-178) Department clerical staff entered data from the submitted reports in a computer database, pursuant to their employment duties to accurately enter radon service reports and verify the accuracy of the data following entry. After one year, the paper records are recycled. (N.T. 178-180)
31. Using data from mitigation records submitted to the Department by Mr. Gromicko/Sunn Radon as entered in their database, the Department sent a letter to the current occupants of 1,677 homes at which Mr. Gromicko/Sunn Radon had performed mitigation services in Pennsylvania. (N.T. 74-75, 177-183; Ex. C-40) The letter asked the current occupants to answer a few simple questions about the mitigation system in their homes based upon the Mitigation Protocols (e.g., Is the exhaust vent at least ten feet from the ground, doors and windows?) (Ex. C-41)
32. The Department received 453 responses to its questionnaire (a response rate of approximately 25%). (N.T. 184; Ex. C-42) Of these, the majority of the responses indicated that at least some discrepancy existed between their systems and the Mitigation Protocols. Of the 453 responses, 313 (or approximately 70%) documented that their system deviated from the vent, fan or monitor requirements of the Mitigation Protocols, indicating a more serious deficiency than the failure to apply required labels. (N.T. 185)
33. The Department began contacting homeowners whose questionnaire response had indicated a system problem and in June and July of 1998, inspected 29 of these residences. (N.T. 186) These inspections revealed that 28 of the systems installed by Mr. Gromicko/Sunn Radon failed to meet the Mitigation Protocols. (N.T. 187)
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)
36. Mr. Pyles’ radon work for the Department began in 1984 when the first reported naturally occurring residential radon hazard was brought to the attention of his office and thereby to national prominence. (N.T. 152-155) Mr. Pyles has assisted the U.S. Environmental Protection Agency in the development of the Mitigation Protocols and has headed the Department’s Radon Division since 1991. (N.T. 151, 155)
37. On December 16, 1998, Mr. Gromicko testified in deposition that any mitigation system vents observed by the Department which were located less than ten feet from the ground, doors, or windows, were actually fresh air intake vents for pressurized systems rather than discharge vents for depressurized systems, and were therefore exempt from the ten foot set-back requirements; and that non-compliant monitors, labels and vents had been altered by homeowners between the dates of installation and Department inspection. (Ex. C-4a, p. 243)
38. In January of 1999, Department representatives reinspected and videotaped several homes and confirmed that the vents were discharge vents. This directly contradicts Mr. Gromicko’s assertion that the mitigation system vents were intake vents and as such were exempt from the set-back requirement. (Ex. 44) The Department also inspected an additional ten residences from the list of questionnaire respondents. The Department confirmed that systems installed by Sunn Radon at the additional homes were also in violation of the Mitigation Protocols. (N.T. 194-195)
39. On February 12, 1999, the Department issued an Amended Denial of Radon Testing Certificate (Amended Denial) adding violations of the Mitigation Protocols at ten more residences to its basis for the denial action. (Ex. 15) The Department also removed seven homes from the list of violations set forth in the Denial of Certification because it turned out that the systems in these homes had been installed prior to December 15, 1991 when the specifications in the Mitigation Protocols were merely advisory and not mandatory. (N.T. 193-195) The Department’s denial of Mr. Gromicko’s application was based on 58 separate violations at 31 residences. (Ex. 15)
40. On May 20, 1999, the Department sent to Mr. Gromicko a Proposed Civil Penalty Assessment. On June 1, 1999, following Mr. Gromicko’s refusal to discuss or negotiate the Proposed Civil Penalty, the Department issued to Mr. Gromicko a Civil Penalty Assessment. (N.T. 194-195; Ex. C-16) The assessment was issued pursuant to Section 2012(a) of the Radon Certification Act, 63 P.S. § 2012(a), Section 308 of the Radiation Protection Act, 35 P.S. § 7110.308(e) and Section 240.402 of the Department’s regulations. 25 Pa. Code § 240.402. (Ex. C-17) The Department assessed a $17,662 civil penalty for 30 violations at 12 residences.
41. 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.
Gromicko’s Responsibility for 58 Violations at the 31 Residences
42. Sunn Radon installed the radon mitigation systems in the 31 residences listed in the Department’s Amended Denial Letter, including the 12 residences also listed in the Department’s Civil Penalty Assessment.
43. 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. (Ex. C-43, C-50, C-52, C-62, C-64, C-79, C-91)
44. On the day the homes listed in the Amended Denial letter were inspected by Department representatives (in 1998 and 1999), the radon mitigation systems in these homes were not in compliance with the Mitigation Protocols. The aspects of non-compliance are accurately described in the Department’s Amended Denial Letter. (Stipulation No. 29)
45. The systems at all 31 residences were sub-slab suction systems when originally installed by Sunn Radon for which discharge vents must by law be more than ten feet from doors, windows or the ground. Data submitted to the Department by Sunn Radon establishes that these systems were suction systems when originally installed by Sunn Radon. (Ex. C-40)
46. In April and May, 1999, following notice to Mr. Gromicko and an opportunity to attend, the Department deposed homeowners from the 12 residences set forth in the Civil Penalty Assessment. All of these homeowners testified under oath that no alterations of the radon mitigation systems in the residences had been made during their occupancy of the homes between the date of system installation and the date of Department inspection. (Ex. C-45, C-47, C-48, C-50, C-54, C-56, C-58, C-60, C-62, C-64, C-65, C-79 and C-80)
47. Mr. Howard Sher, a Radiation Health Physicist 2 with the Department who has inspected approximately 300 mitigation systems in his seven years with the Department, was qualified as an expert witness in the field of the evaluation of radon mitigation systems for compliance with the Mitigation Protocols. (N.T. 227-229)
48. Mr. Dwight Shearer, also a Radiation Health Physicist 2 with the Department who has inspected more than 100 radon mitigation systems and has a degree in Environmental Engineering, was qualified as an expert witness in the field of the evaluation of radon mitigation systems for compliance with the Mitigation Protocols. (N.T. 362-364)
49. In their inspections, Mr. Sher and Mr. Shearer consistently looked but found no signs that Sunn Radon’s systems had been altered since the date of installation. In their opinions, no alterations to the systems had been made. (N.T. 232-249, 282, 371-372)
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.
56. Mr. Larry Ryan, Chief of the Department’s Radon Certification Section, prepared the initial calculations for penalty assessment. (N.T. 399, 401) Using the Bureau of Radiation Protection’s Civil Penalty Assessment Procedure, he characterized the violations as those which have the potential to result in a radiation exposure, designated as Level 2 violations. (N.T. 402-403; Ex. C-96) Mr. Ryan initially characterized Mr. Gromicko’s conduct as reckless, but ultimately used a more conservative approach and characterized the violations as negligent. (N.T. 404-405) The Bureau’s penalty matrix provides for a penalty between $3,125 and $6,250 for a negligent Level 2 violation, times 30 violations, resulting in a suggested penalty of at least $93,000. (N.T. 405-407) The Bureau’s procedure also permits adding the Department’s investigation costs. (N.T. 408)
57. In preparing its assessment, the Department calculated a total base penalty of $11,150 (not including Department costs) by assessing $150 for failing to affix required labeling, $300 for failing to install a warning monitor, and between $350 and $750 for each vent discharge violation, depending upon the severity of the violation. (N.T. 409-411; Ex. 97)
58. The Department calculated its costs for the investigations to be $3,426.28. This calculation was made by adding the number of hours spent by the inspectors evaluating the systems, multiplying this by the inspectors’ gross hourly pay, (N.T. 136-137, 282-283, 359-360, 378-379), and taking 36% of that figure, plus expenses and deposition costs.
59. The Department only assessed a penalty for violations at 12 residences, which represents 36% of the 31 residences listed in the Amended Denial Letter. (N.T. 413-414) The Department used conservative calculations and did not consider supervisory time or attorneys’ time which would have been appropriate and allowable under the Department’s penalty guidelines. (N.T. 414) The Department’s current total penalty assessment amount is $14,576.
DISCUSSION
Mr. Gromicko has the burden of proof to demonstrate that the Department erred in the denial of his certification application.[5] 25 Pa. Code § 1021.101(c)(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.
The Need for Protection from Radon
Exposure to radon gas can cause lung cancer in human beings. (Stipulation No. 3) In 1987, the General Assembly determined that radon levels in public and private buildings can present a significant health risk to occupants, and passed the Radon Certification Act, Act of 1987, July 9, P.L. 238, 63 P.S. § 2001-2014. (Stipulation No. 2) The stated intent of the legislature in adopting the Radon Certification Act was “to protect property owners from unqualified or unscrupulous consultants and firms . . . .” 63 P.S. § 2002(b). The Radon Certification Act and regulations promulgated thereunder, 25 Pa. Code Chapter 240, mandate a certification program for individuals and firms engaging in radon testing services (the examination of buildings for the presence of radon such as the radioactive gas Radon-222 and the short-lived radio nuclides which are products of Radon-222 decay), radon laboratory analyses (the testing of radon concentrations in air, water or soil), and radon mitigation services (the repair or alteration of a building to reduce indoor radon concentrations). (Stipulation No. 5)
Radon gas can migrate into a home from soils beneath the home through spaces or cracks in the foundation. Generally, radon mitigation is recommended where radon levels inside a home exceed Environmental Protection Agency guidelines. Radon mitigation typically involves the installation of equipment such as a fan and piping to reduce radon concentrations inside a structure. (Stipulation No. 7; N.T. 127-132) Most commonly, residential radon mitigation systems consist of installed basement piping which draws radon gas from beneath the structure’s foundation to an outdoor vent by means of a fan, referred to as a “depressurized” system because the fan creates negative pressure or suction beneath the foundation. (Stipulation No. 8) The concentration of radon gas collected from beneath a structure and exhausted through a depressurization system vent is much higher than the concentration of radon gas inside the structure. (Stipulation No. 9) Human health is put at risk when radon gas drawn from beneath a structure is allowed to re-enter the structure through a door or window, or when vented near the ground level. (N.T. 59).
1. Mr. Gromicko’s responsibility for Sunn Radon’s work continued through October 10, 1996
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. (Stipulation No. 25; N.T. 57-58)
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) Mr. Sher confirmed Mr. Shearer’s testimony that the two inspectors met with Mr. Gromicko and Mr. Mills at the offices of Sunn Radon in October of 1996. (N.T. 287) 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. (N.T. 448; see also Notice of Appeal, ¶ 2; Appellant’s post-hearing brief, ¶¶ 13, 15)) We find this to be extremely unlikely. For each of the 31 residences, the Department received notification from the mitigator, Sunn Radon, that Sunn Radon had installed a system at the residence. If one of Sunn Radon’s employees had installed a mitigation system outside the scope of his employment, it is doubtful that Sunn Radon would have submitted data about that residence to the Department. Moreover, 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. (Ex. C-43, C-50, C-52, C-62, C-64, C-79, C-91)
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.
2. Mr. Gromicko is responsible for at least 58 separate violations of the
Mitigation Protocols in the 31 residences listed in the Amended Denial Letter.
Mitigation systems installed in Pennsylvania residences after December 15, 1991 were required by law to conform with detailed installation specifications. 25 Pa. Code § 240.208. From December 15, 1991 through November 30, 1997, mitigation installations were required to conform with the “Radon Contractor Proficiency Program Interim Radon Mitigation Standard” (Mitigation Protocols). (Stipulation No. 12; N.T. 58) Mitigation systems are required by law to be installed in a manner following the Mitigation Protocols even if the homeowner objects to one or more of the installation specifications. (N.T. 59)
The Mitigation Protocols specify, among other things, how mitigation systems must be installed. A monitor or warning device must be attached and plainly visible to the occupants in order to notify the occupants in the event that the system ceased to operate correctly. Labels must be attached and plainly visible which would identify the equipment as a radon mitigation system, identify the installer by name and telephone number, and identify the power shut-off switch to prevent inadvertent disconnection of the system by the occupant. Discharge vents for depressurized systems must be located more than a specified distance from the ground, walkways, or re-entry points, such as doors and windows in the mitigated structure or surrounding structures. (Stipulation No. 13) In some cases a mitigation system can be a “pressurized” system in which fresh outdoor air is piped to beneath the foundation. (Stipulation No. 10) It is simple to determine whether a residential radon mitigation system is a depressurized or pressurized system when the fan is operating by feeling the outside vent. If air is being blown out of the vent, the system is a depressurized system, which creates a suction beneath the foundation. If air is being sucked into the vent, the system is a pressurized system, which forces fresh air beneath the foundation. (Stipulation No. 11)
The Department’s regulations require certified
mitigators to submit data to the Department whenever radon mitigation services
are provided. (25 Pa. Code § 240.303;
N.T. 177-178). Mr. Gromicko testified
that Sunn Radon submitted the reports to the Department for residences
mitigated by Sunn Radon during its years of certification. The data from the reports was entered into
the Department’s computer database and the accuracy of the data was verified
following input. (N.T. 178-180) The information from the Department’s
computerized database for each of the 31 residences listed in the Department’s
Amended Denial Letter was therefore supplied by Sunn Radon itself. The Department later used this data to
identify mitigation systems installed by Sunn Radon. (Ex. 40)
We reject Mr. Gromicko’s testimony that the systems
were installed correctly but altered prior to the Department’s inspections as
well as his contention that some of the violations were not really violations
because they involved inactive radon systems.
(Appellant’s post-hearing brief, ¶¶ 11, 12, 14) On December 16, 1998, Mr. Gromicko testified
in deposition that any mitigation system vents observed by the Department which
were located less than ten feet from the ground, doors, or windows, were actually
fresh air intake vents for pressurized systems rather than discharge vents for
depressurized systems, and were therefore exempt from the ten foot set-back
requirements; and that non-compliant monitors, labels and vents had been
altered by homeowners between the dates of installation and Department
inspection. (Ex. C-4a, p. 243) Mr.
Gromicko offered no documentation, witnesses, photographs or personal testimony
to demonstrate that these systems were in fact inactive systems or ever altered
between the date of installation and the date of Department inspection.
The Department presented compelling evidence that
the deficiencies in the systems existed at the time of installation and were
not the result of a subsequent alteration.
Mr. Sher and Mr. Shearer, Radiation Health Physicists with the
Department who have inspected a combined total of approximately 400 radon
mitigation systems during their years with the Department, were qualified as
expert witnesses in the field of the evaluation of radon mitigation systems for
compliance with the Mitigation Protocols.
(N.T. 227-229, 362-364) In their
inspections, Mr. Sher and Mr. Shearer consistently looked but found no signs
that Sunn Radon’s systems had been altered since the date of installation. The removal of a monitor/warning device will
leave holes in the mitigation piping where the device had been initially
installed. (N.T. 115-116) Both inspectors testified that none of the
systems which lacked the required monitor/warning device had holes which would
indicate that the device had been installed and later removed. (N.T. 230-231, 370) Testimony was introduced suggesting that
radon mitigation labels leave a paper and glue residue when peeled off a
mitigation system. (N.T. 116-117, 135,
370-371) Both inspectors testified that
they looked for and observed no label remnants on any of the systems they
inspected where required labeling was missing.
(N.T. 241-242, 370-371) Similarly, if exterior piping for the
discharge vent located on the side of a house were removed by a homeowner
following proper installation, the removal would likely leave signs along the
housing material. (N.T. 231, 234-235,
370) The inspectors testified that in
their professional opinions, the radon mitigation systems at the 31 residences
listed in the amended Denial Letter had not been altered between the date of
system installation and the date of their inspections. (N.T. 232-249, 282, 371-372)
Moreover, 12 of the homeowners testified under oath
that no alterations of the radon mitigation systems in the residences had been
made during their occupancy of the homes between the date of system
installation and the date of Department inspection. (Ex. C-45, C-47, C-48, C-50, C-54, C-56, C-58, C-60, C-62, C-64,
C-65, C-79, C-80) 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) In addition, in January of 1999, Department
representatives reinspected and videotaped several homes and confirmed that the
vents were discharge vents, contrary to Mr. Gromicko’s assertion that the mitigation
system vents were intake vents and as such were exempt from the set-back
requirement. (Ex. 44) Mr. Gromicko’s unsupported assertions have
been refuted by the evidence presented at the hearing and the sworn depositions
of homeowners for the 12 residences listed in the Civil Penalty Assessment.
3. The Department properly denied Mr. Gromicko’s application for radon testing
certification.
The Department’s Denial of Certification was based upon, among other things, a determination that Mr. Gromicko had failed to comply with 25 Pa. Code §§ 240.201(a) and 240.201(b) in connection with his performing mitigation services. (N.T. 189-192; Ex. C-14) Section 240.201(a) states that 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). The Department may also deny certification 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).
We agree with the Department that although Mr. Gromicko’s 1998 application sought certification for radon testing only, the Department could not as a practical matter evaluate Mr. Gromicko’s past compliance with the Radon Certification Act and its regulations by examination of his prior testing services. After a radon test, little physical evidence remains from which to evaluate a tester’s compliance with proper procedures. (N.T. 163-164) Mr. Gromicko’s compliance status and history as a radon mitigator could not be accurately assessed from the Department’s inspections during the period of time that Mr. Gromicko was certified because, due to resource constraints, routine Department monitoring of mitigators covers less than 1% of the mitigation systems installed. (N.T. 165-167) Mitigation systems previously installed by Mr. Gromicko, however, could be later evaluated for compliance with the radon regulations and mandated Mitigation Protocols in effect at the time of installation. 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. (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)
Mr. Gromicko presents three reasons why the Department’s denial of his application for radon testing certification was erroneous. He argues first that his conduct in performing mitigation services is not relevant to whether he should be certified to perform radon testing services. We reject this contention because the Department has shown that Mr. Gromicko has demonstrated a lack of either intention or ability to comply with the requirements of the Radon Certification Act and the Department’s regulations. In administering the Act and its accompanying regulations, the Department is able to inspect less than 1% of the installed mitigation systems. (N.T. 165-167) An after-the-fact-inspection of testing services by the Department is all but impracticable because there is little or no physical evidence to inspect which might determine whether the testing service was properly performed or not. Accordingly, a person who cannot comply with the law in performing mitigation services, which can be the subject of a Department inspection, can hardly be relied upon to comply with the law in doing testing when the Department is unable to determine from an inspection whether the service has been performed properly or not. In addition, Mr. Gromicko has acknowledged that both aspects of radon services are closely connected so that a failure to perform one properly should result in being unable to perform either type of service. (N.T. 56)
Mr. Gromicko also claims that the Department’s investigation was
statistically flawed, in that a representative sample of Mr. Gromicko’s
customers should have been contacted by the Department. (Appellant’s post-hearing brief, ¶¶ 8-10) He points to the number and high quality of
the mitigation systems that he has installed compared to the very few
installations at which violations were found. (Appellant’s post-hearing brief,
¶¶ 9, 10) His contention misses the Department’s point that the discovered
uncorrected violations are continuing violations which increase the adverse
health risks to the building occupants. See Findings of Fact Nos.
13-15. Because Mr. Gromicko’s conduct
has resulted in serious violations, it is irrelevant whether the violation is
typical or atypical of the applicant’s conduct because of the risks which these
violations entail. In addition, such an
applicant must correct any existing violations before the application will be
approved. 25 Pa. Code §
1021.101(c)(1). Mr. Gromicko has not
contacted the owners of the residence listed in the Amended Denial Letter, nor
inspected the radon mitigation systems in those residences, nor caused the
systems to have been repaired.
(Stipulation No. 33; N.T. 79-80)
There is no reason not to believe that the increased risks to the health
of the occupants of these residences caused by the non-compliant mitigation
systems continues today. (N.T. 82) That many have benefited from correct
installations does not excuse that others have been subjected to unnecessary
and serious health risks by incorrect installations.
Mr. Gromicko’s third contention is that the instances which served the basis for the Department’s decision occurred “too long ago.” (Appellant’s post-hearing brief, ¶ 3, 7) However, there is no evidence that the Department had any knowledge of any of these violations until it began investigation Mr. Gromicko’s compliance record in 1998, pursuant to the processing of the certification application at issue. The passage of time has not relieved Mr. Gromicko of responsibility for the violations. When the violations were discovered, the Department acted promptly in denying Mr. Gromicko’s application and assessing the civil penalty. Mr. Gromicko asserts that the Department should have issued a notice of violation before taking issuing its Denial of Certification. (Notice of Appeal, ¶ 3; Appellant’s post-hearing brief, ¶ 6) The Department is under no legal obligation to issue a notice of violation before initiating an enforcement action unless required to do so by statute or regulation, which is not the case here. Farmer v. DEP, 1998 EHB 1292, 1302. The Department could not have provided Mr. Gromicko with notice of the violations during the time Mr. Gromicko was still certified because it did not learn of the violations until the investigation of Mr. Gromicko’s compliance record after his last certification had expired. The violations were listed in the Department’s Denial Letter on September 23, 1998 and the Amended Denial Letter on February 12, 1999.
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)
4. The
Department has not abused its discretion in assessing the civil penalty
amount.
The Department has the burden of
proof in the assessment of the civil penalty.
25 Pa. Code § 1021.101(b)(1). The assessment of a civil penalty is an
exercise of the Department's discretion. Goetz v. DER, 1993 EHB 1401, aff’d,
No. 2612 C.D. 1993 (Pa. Cmwlth. filed October 17, 1994). Thus it must prove by
a preponderance of the evidence that Mr. Gromicko violated the applicable
statutes and regulations, and the amount of the penalty assessed for the
violations reflects an appropriate exercise of discretion. Shay v. DEP,
1996 EHB 1583, aff’d, No. 175 C.D. 1997 (Pa. Cmwlth. filed November
17, 1997). We will not consider whether
we would assess the same penalty in the same amount as the Department did, but
will only determine whether the penalty is reasonable and appropriate for each
violation. Only where we find that the Department abused its discretion will we
substitute our own to modify an assessment.
Id.
The Department may assess a civil penalty for a violation of the Radon
Certification Act, the Radiation Protection Act[6]
or Chapter 240 of its regulations. 25 Pa. Code § 240.402(a). Section 308 of the Radiation Protection Act
authorizes the Department to assess a civil penalty not exceeding $25,000 per
violation. 35 P.S. § 7110.308(e). On May 20, 1999, the Department sent to Mr. Gromicko a Proposed Civil Penalty
Assessment. On June 1, 1999, following Mr. Gromicko’s refusal to discuss or
negotiate the Proposed Civil Penalty, the Department issued to Mr. Gromicko a
Civil Penalty Assessment. (N.T.
194-195; Ex. C-16) The assessment was
issued pursuant to Section 2012(a) of the Radon Certification Act, 63 P.S. §
2012(a), Section 308 of the Radiation Protection Act, 35 P.S. § 7110.308(e),
and Section 240.402 of the Department’s regulations, 25 Pa. Code §
240.402. (Ex. C-17)
The Chief of the Radon Certification Section, Mr. Larry Ryan, is in charge of approving or denying radon certification applications. (N.T. 99) Part of his duties include preparing calculations and recommendations for civil penalty assessments. (N.T. 400) In recommending a civil penalty amount in this case, he consulted the Bureau of Radiation Protection Civil Penalty Assessment Procedure. (N.T. 401-402; Ex. C-96) Mr. Ryan determined that violations of the radon mitigation protocols constitutes a Level 2 violation because of the potential to cause radiation exposure to people. (N.T. 402-403) Initially, Mr. Ryan characterized Mr. Gromicko’s violations as being reckless because Mr. Gromicko had submitted an application which represented to the Department that he would follow the protocols in performing radon services, he was aware of the mitigation standards and had an understanding of them, and was aware of the health risks to the public in not following the protocols. (N.T. 404) However, Mr. Ryan conservatively categorized Mr. Gromicko’s conduct as negligent. (N.T. 405)
A total of 30 violations at 12 residences served as the basis for calculating the civil penalty because the Department had proof beyond a reasonable doubt that they were Mr. Gromicko’s violations due to the depositions of the 12 homeowners. (N.T. 405-406) In multiplying the lowest amount in the matrix, $3,125, by the 30 violations, the base penalty amount would have amounted to a suggested penalty of at least $93,000. (N.T. 406-407) Mr. Ryan developed an alternative base penalty assessment scale that was more applicable to this particular case. (N.T. 409) For each of the 12 residences, the Department assessed a base penalty of $150 for each failure to properly label the mitigation system, $300 for failure to install a monitor/warning device in each system, and between $350 and $750, depending on the magnitude of the deficiency, for failure to comply with the Mitigation Protocols’ vent location requirements. (N.T. 409-411; Ex. C-97) In addition to the base penalty amount of $11,150, Mr. Ryan calculated the costs incurred by the Department in investigating the violations. (N.T. 412) This was done by calculating the number of hours the inspectors expended times their gross pay, plus expenses incurred and deposition costs.
The Department originally assessed a $17,662 civil penalty for 30 violations at 12 residences. At the hearing, the Department informed the Board that it had recalculated its civil penalties, and requested and affirmance of $14,576. Mr. Ryan added only 36% of the total costs incurred by the Department, totaling $3,426, to the base penalty amount in order to cover just the 12 of the 31 residences listed in the Amended Denial Letter, for a total civil penalty of $14,576. (N.T. 413-414) The penalty policy suggests that the penalty might be lowered on the good faith of the violator in correcting the violations (N.T. 407), but as of the dates of the hearing on the merits, Mr. Gromicko has failed to take corrective action regarding the deficient systems that he installed. Although Mr. Gromicko correctly points out that he cannot correct deficient systems since he is not certified to do so (Notice of Appeal ¶ 4), he could have viewed the systems, determined the repairs necessary, and retained the services of a certified mitigator to repair the systems.
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
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).
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).
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).
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).
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).
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).
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.
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:
COMMONWEALTH OF PENNSYLVANIA
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NICKIFOR N. GROMICKO, JR. |
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