March 5, 2009
PRECISION ANALYTICAL SERVICES, INC., APPELLANT,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
On appeal from the New Jersey Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2009
Before Judges Stern and Rodríguez.
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.
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