Neutron v. Dept. of Environment
| Decision Date | 27 January 2006 |
| Docket Number | No. 00074, September Term, 2004.,00074, September Term, 2004. |
| Parties | NEUTRON PRODUCTS, INC. v. DEPARTMENT OF THE ENVIRONMENT. |
| Court | Court of Special Appeals of Maryland |
James D. Dalrymple, Gaithersburg, for appellant.
Debra A. Smith (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.
Panel: HOLLANDER, BARBERA and MEREDITH, JJ.
Neutron Products, Inc. ("Neutron" or "NPI"), appellant, challenges the administrative penalty assessed by the Maryland Department of the Environment ("MDE" or the "Department"), appellee, for violations of various State regulations pertaining to the control of ionizing radiation and licenses. In particular, following an administrative hearing, NPI was found to have committed approximately 3,600 violations of license conditions and regulations, for which MDE imposed a penalty totaling $40,700.
The Maryland Radiation Act, §§ 8-101 to 8-601 of the Environment Article ("Envir.") of the Maryland Code (1996 Repl. Vol., 2004 Supp.), and Title 26 of the Code of Maryland Regulations ("COMAR"), provide authority to MDE to assure compliance with radiation laws and regulations. The penalty was imposed pursuant to Envir. § 8-510(b), which permits a penalty of up to $1,000 for each day of violation, not to exceed a total of $50,000.
Neutron sought review of the agency's decision in the Circuit Court for Montgomery County. That court affirmed in part and remanded solely to verify that the penalty did not exceed the statutory maximum of $1,000 for a single violation.
On appeal, Neutron presents the following questions:
I. By failing to explain how much of the lump sum penalty was attributable to each category of violation, and by failing to reduce the amount of the penalty in accordance with the reduction in the number of violations, did MDE abuse its discretion and arbitrarily assess a penalty?
II. By not allowing Neutron to present evidence concerning fines assessed by MDE to other Maryland licensees for the same, similar or more serious categories of violations, did the ALJ err as a matter of law?
III. In the event this court finds that MDE did not abuse its discretion by imposing one lump sum fine for numerous different violations, is Section 8-510 itself void for vagueness in that it grants unfettered and uncontestable discretion unto MDE?
For the reasons that follow, we shall affirm the circuit court.
The use and regulation of radioactive material by the private sector is governed by the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. §§ 2011 — 2297g-4, as amended. The AEA provides that the Nuclear Regulatory Commission may "enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the Commission...." 42 U.S.C. § 2021(b). "During the duration of such an agreement it is recognized that the State shall have authority to regulate the materials covered by the agreement for the protection of the public health and safety from radiation hazards." Id.
Maryland's statutory authority to control radiation is codified in the Maryland Radiation Act (the "Act"), Envir. §§ 8-101 to 8-601, and COMAR, Title 26, Subtitle 12, which concerns Radiation Management. Pursuant to the Act, certain powers, duties, and responsibilities are vested in the Secretary of the Environment and then delegated to the Director of the Air and Radiation Management Administration (the "Administration") of MDE, which is charged with regulating sources of radiation in the State. Within the Administration, the Radiological Health Program ("RHP") enforces the statutes relating to radiation control, and the regulations promulgated thereunder. See COMAR 26.12.01.01.
Several statutory provisions are pertinent here.
Envir. § 8-101 provides, in part:
§ 8-101. Definitions.
* * *
(f) Radiation. — "Radiation" means:
(1) Ionizing radiation, including gamma rays, X-rays, alpha particles, beta particles, neutrons, high speed electrons, high speed protons, and any other atomic or nuclear particles or rays;
(2) Any electromagnetic radiation that can be generated during the operation of a manufactured device that has an electronic circuit; or
(3) Any sonic, ultrasonic, or infrasonic waves that are emitted as a result of the operation, in a manufactured device, of an electronic circuit that can generate a physical field of radiation.
(g) Specific license. — "Specific license" means a license that, under the rules and regulations adopted by the Department under this title, is effective only after the applicant files an application and the Department approves the application.
The Act grants MDE the authority to promulgate rules and regulations. Section 8-106 states:
§ 8-106. Power of Secretary to adopt rules and regulations.
(a) In general. — Except as otherwise provided in this section, the Secretary may adopt rules and regulations for control of sources of radiation.
(b) Compliance with Administrative Procedure Act. — The Secretary may not adopt any rule or regulation for control of a source of radiation unless the requirements of this section and the Administrative Procedure Act are met.
(c) Conformity to federal standards. — The Secretary may not adopt any rule or regulation unless the rule or regulation conforms to the relevant standards set by:
(1) The United States Nuclear Regulatory Commission;
(2) The United States Food and Drug Administration; and
(3) The United States Environmental Protection Agency.
Section 8-301 states, in part:
§ 8-301. Rules and regulations generally.
(a) Required rules and regulations; decommissioning of facilities. — (1) Subject to Subtitle 4 of this title, the Secretary shall adopt rules and regulations for general licenses and specific licenses that govern:
(i) Ionizing radiation sources and byproduct material;
(ii) Special nuclear material;
(iii) Devices that use ionizing radiation sources, byproduct material, or special nuclear material.
(2) The rules and regulations shall provide for:
(i) The issuance, amendment, suspension, or revocation of general licenses and specific licenses;
(ii) The registration of ionizing radiation sources for which a general license or specific license is not required....
In addition, the Act authorizes MDE to issue corrective orders. Envir. § 8-503 provides:
§ 8-503. Issuance of order or notice by Department.
(a) Generally. — After or concurrently with the service of a complaint under this subtitle, the Department may:
(1) Issue an order that requires the person to whom it is directed to take corrective action within a time set in the order;
(2) Send a written notice that requires the person to whom it is directed to file a written report about the alleged violation in not less than 5 days from service of the order; or
(3) Send a written notice that requires the person to whom the notice is directed;
(i) To appear at a hearing before the Department at a time and place the Department sets to answer the allegations of the complaint; or
(ii) To file a written report and also appear at a hearing before the Department at a time and place the Department sets to answer the charges in the complaint.
(b) When effective. — Any order issued under this section is effective immediately, according to its terms, when it is served.
An order issued pursuant to Envir. § 8-503 may be contested at a hearing or become a final and enforceable order pursuant to Envir. § 8-506. It states:
§ 8-506. Final corrective orders; issuance following notice.
(a) Final order. — (1) Unless the person served with an order under § 8-503(a)(1) of this subtitle makes a timely request for a hearing, the order is a final order.
(2) If the person served with an order under § 8-503(a)(1) of this subtitle makes a timely request for a hearing, the order becomes a final corrective order when the Department renders its decision following the hearing.
(b) Issuance following notice. — (1) If the Department issues a notice under § 8-503(a)(2) or (3) of this subtitle, the Department may not issue an order that requires corrective action by the person to whom the notice is directed until after the later of:
(i) The time set for the hearing, if any; and
(ii) The time set for filing of the report, if any.
(2) After the time within which the Department may not issue a corrective order has passed, if the Department finds that a violation of this title has occurred, the Department shall issue an order that requires correction of the violation within a time set in the order.
(3) Any order issued under this subsection is a final corrective order and the person to whom the order is directed is not entitled to a hearing before the Department as a result of the order.
(c) Enforcement. — The Department shall:
(1) Take action to secure compliance with any final corrective order; and
(2) If the terms of the final corrective order are violated or if a violation is not corrected within the time set in the order, sue to require correction of the violation.
A hearing pursuant to the Act is "held in the manner provided in § 10-205 of the State Government Article for hearings in contested cases." Envir. § 8-505(a)(2). Under Envir. § 8-511, the Attorney General "shall take charge of, prosecute, and defend on behalf of this State every case arising under the provisions of this title, including the recovery of penalties."
Pursuant to Envir. § 8-508, an appeal may be taken from an adverse decision of the MDE. The statute provides:
§ 8-508. Judicial Review of final decision of Department.
(a) Generally. — Any person aggrieved by a final decision of the Department in connection with an order or license issued under this title may take a direct judicial appeal.
(b) Procedure. — The appeal shall be made as provided for judicial review of final decisions under Title 10 of the State Government Article.
The Act also provides for the imposition of...
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