March 2013

Kentucky’s radon certification laws UPDATES signed by Gov. Beshear on Thursday, March 21.

     E&O insurance will not be required for radon testers, under amendments to Kentucky’s radon certification signed into law by Gov. Beshear on March 21.
     The change reverses the existing law’s requirements, which called for a mandatory $500,000 E&O insurance policy for testers, but not mitigators — for reasons that were, at best, baffling.
     Now, only general liability coverage of $500,000 will be required, under KRS 211.9113 as amended.
The amendments, in Senate Bill 66 (13 RS SB66), make three major changes. All are set to become effective in June.
     This also means regulations laying out exact steps to get radon certifications will start moving again. CHFS (the Cabinet for Health and Family Services) is saying regulations setting out rules for radon certification under the law have been on hold, wairting for the General Assembly’s action on the amendments.
     That’s the good news for testers.
     The bad news – for the public – is that radon mitigators will not be required to have any E&O insurance either. It has been that way since the certification laws first passed, as 11 RS 247, in 2011 (effective Jan. 1, 2013).
     If there is any part of radon protection for homeowners that ought to be covered by professional negligence insurance, surely it is faulty mitigation work that exposes people to radon in their homes.
     Bonding requirements also are eliminated – for mitigators as well as measurement contractors – in amendments to KRS 211.9109 (testers), KRS 211.9111 (mitigators), and KRS 211.9113 (certification).
     The odds are excellent this be no improvement for the public. Unlike radon testers, who do not touch a structure, mitigators do. The public often asks if a contractor is bonded when the work will involve altering or remodeling a home.
     Finally, an express exception allowing mitigators to test their own work was cut, under SB66’s amendment to KRS 211.9117.  That may halt the conflict.
     The problem is that the amendment was inartful, if not just a crude cut.
    The change removes the so-called “diagnostic-purposes-only exemption” from the rule of KRS 211.9117(2) that a mitigator who also has a measurement certificate “shall not conduct measurement on the same building to determine the need for mitigation.”
     With the “diagnostic exemption” removed, it would seem mitigators could not approve their own work.
     We wish it were that plain. But the language is not a model of clarity.
     The phrase “to determine the need for mitigation” could easily be interpreted the other way – a mitigator cannot prescribe his own work, by testing and saying mitigation was “needed,” but a mitigator could approve his own work, by testing his installation and reporting mitigation was successful and nothing more was needed. Again, the lack of clarity is unlikely to serve the public.
     The way the amended law will read, to be exact, is:
    “A person certified as both a measurement and mitigation contractor who conducts mitigation on a residential or commercial building shall not conduct measurement on that same building to determine the need for mitigation[, or the successful completion of mitigation activities, unless the measurement shall be used for diagnostic purposes only. At a minimum, the results of any measurement conducted to determine the need for mitigation, or the successful completion of mitigation activities, shall be sent directly to the person providing compensation for the mitigation activities by the independent measurement contractor conducting the measurement].”
     The problem is what’s left.  The phrase “to determine the need for mitigation” — that is left after the amendment — is permissibly read or interpreted the other way – a mitigator cannot prescribe his own work, by testing and saying mitigation was “needed,” but a mitigator could approve his own work, by testing his installation and reporting mitigation was successful and nothing more was needed. Again, the lack of clarity is unlikely to serve the public.  He would not be “determining the need for mitigation.”  He would just be giving his stamp of approval to mitigation he had just done.  That, in turn, is the problem with boards writing laws and regulations in secret meetings, without getting feedback from the public and stakeholders.
     It is possible this will be clarified in the regulations due soon from the Cabinet for Health and Family Services (CHFS). The last draft of radon certification regulations emerged in September, 2012,but was not made public until months later, after an Open Records request.  They still are not posted on the CHFS site, though a clumsy draft has been circulating since September.  It has been on hold, waiting for the outcome of SB66.
     Passage of SB 66 was a model of legislative maneuvering that does justice to the old adage that watching legislation is like watching sausage being made.
     After the original amendments, known as HB 66, was received in the House on March 12, it was posted for concurrence in Senate committee substitute 1, and committee amendment 1 to the title. The house concurred and the bill passed in its final form with the SCS 1 and CA 1.
So what happened is SCS 1, the Senate Committee Substitute bill, gutted the HB 66 bill. It took out all the provisions relating to radon contractors and replaced the bill with provisions dealing with the Kentucky Reclamation Guaranty fund. The title amendment changes the title to conform with the fact that the bill now deals with entirely different subject matter. http://www.lrc.ky.gov/record/13rs/HB66.htm. What’s any of this got to do with the Reclamation Guaranty Recovery Fund? Nada. Zip. Zero.
Then the radon mitigation contractor material that was removed from HB 66, ended up being in a HFA 3 (House Floor Amendment 3) to SB 66.
HFA 3 added the radon mitigation contractor material on to SB 66, and HFA 4 amended the title of HB 66 to reflect the fact that the radon contractor material has been added onto SB 66.
Then SB 66 passed with HFA 3, and HFA 4. Both of these amendments were sponsored by Rep. Riggs, who sponsored the original radon contractor bill. http://www.lrc.ky.gov/record/13rs/SB66.htm
You had to be there.
      It is noteworthy that the Kentucky Board of Home Inspectors (KBHI) was not there — even though practically all radon testing and public information is provided to home buyers by home inspectors licensed by the KBHI.  Several bills affecting home inspection went through this session, including SB66 and SB61, but the KBHI was not seen or heard.  Nowhere to be found also were all the Kentucky and national “associations” whose members were affected.

Five Kentucky Organizations Receive 2013 Energy Star Awards

Five organizations in Kentucky were honored by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Energy (DOE) with 2013 awards from the Energy Star Program. This award was given because of their outstanding leadership and commitment to protecting America’s environment through energy efficiency.

The winners were chosen from nearly 20,000 Energy Star partners, including manufacturers, retailers, public schools, hospitals, real estate companies, and home builders, for their long-term commitment to climate protection through greater energy efficiency.

Organizations are recognized in the following categories:

Partners of the Year–Sustained Excellence:  Kentucky Pollution Prevention Center of Louisville was recognized for developing and promoting tools, training materials, and other resources that incorporate the ENERGY STAR Guidelines for Energy Management, and for recruiting participants to ENERGY STAR initiatives, such as the ENERGY STAR Challenge.

Louisville Gas & Electric and Kentucky Utilities (LG&E and KU) of Louisville was recognized for their continued technical, marketing, and educational support promoting the ENERGY STAR Certified Homes program.

Toyota Motor Engineering & Manufacturing North America, Inc. of Erlanger was recognized for the promotion of energy management among manufacturing
industries and for continued support of the ENERGY STAR
program.

Partners of the Year:  Kenton County School District of Ft. Wright was recognized for its significant commitment to building and
operating energy-efficient schools and for using ENERGY STAR tools and resources as a central component of its energy program.

Scott County Schools of Georgetown was recognized for its demonstrated success in improving energy efficiency.

For more than two decades, American consumers and businesses have continued to save energy and protect the environment through the Energy Star program. In 2012 alone, Americans, with the help of Energy Star, saved $24 billion on their energy bills and prevented greenhouse gas emissions equivalent to those of 41 million vehicles. To date, more than 1.3 million new homes and nearly 20,000 office buildings, schools, and hospitals have earned the Energy Star. Since 2000, more than four billion Energy Star certified products have been sold.

EPA congratulates this year’s Energy Star award winners,” said EPA Acting Administrator Bob Perciasepe. “Their commitment to superior energy efficiency makes these organizations valuable partners in our efforts to reduce greenhouse gas emissions and fight climate change.”

Complete list of winners: www.energystar.gov/awards.

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