PRECISION ANALYTICAL SERVICES INC v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1123-07T31123-07T3

PRECISION ANALYTICAL SERVICES,

INC.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

________________________________________________________________

 

Argued February 11, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from the New Jersey Department of Environmental Protection.

Michael G. Sinkevich argued the cause for appellants (Lieberman & Blecher, attorneys; Stuart J. Lieberman, of counsel; Messrs. Lieberman and Sinkevich, on the briefs).

John R. Renella, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Deputy Attorney General, of counsel; Michael J. Schuit, Deputy Attorney General, on the brief).

PER CURIAM

Precision Analytical Services, Inc. ("PAS") appeals from what it calls a "final agency decision" embodied in a letter from a Deputy Attorney General ("DAG"), dated September 20, 2007, which responds to its request for clarification as to why the Office of Quality Assurance in the Department of Environmental Protection ("DEP") rejected its desire "to use a rational regression rather than the preferred linear calibration curve" to evaluate the quality of drinking water. Appellant contends the decision should be reversed, and its "rational regression method" permitted, because the decision constitutes "illegal rulemaking" without having engaged "in formal rulemaking," and the agency's decision is arbitrary, capricious and unreasonable because its interpretation of its own regulation "is invalid."

PAS insists it satisfies the requirements of N.J.A.C. 7:18-5.5(c), which requires a minimum of one reagent blank, three standards and a calibration coefficient greater than 0.995, by the utilization of equipment using a rational regression methodology. DEP claims the rational regression method does not meet present requirements to assure accurate quality control and that rulemaking is not required for several reasons including the fact it will accept another methodology which complies with the regulations, but that PAS's desired methodology does not.

After a meeting between DEP and PAS in July 2007, its president wrote DEP it would "comply with" the linear regression

methodology. Thereafter, on August 6, 2007 DEP issued a certification to PAS.

We dismiss the appeal. Not only is there no final administrative determination no denial of licensure, no decertification and no imposition of a penalty but the matter is moot by virtue of appellant's decision, prior to issuance of the DAG's letter, that it would use methodology utilizing a linear calibration curve instead of the referenced rational regression method.

We appreciate PAS's argument that it did not want to risk decertification by not complying with DEP's position concerning methodology, and it needs a vehicle to challenge this position. However, even if PAS agreed to comply with DEP's interpretation of the regulations under a reservation of rights, and assuming the matter is not moot, a letter from DEP's counsel explaining its position cannot serve as a final agency determination for purposes of appellate review.

 
We dismiss the appeal without prejudice to the filing of a petition for rulemaking, a formal application to DEP for certification of additional methodology, or development of a "contested case" by a traditional method of applying for and challenging the formal denial of certification utilizing its preferred methodology.

Dismissed.

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March 5, 2009