Radon testing in KY – answer to question

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Home Inspector Question:
I had a question from a realtor, who was inquiring on behalf of a client, about radon testing. Can I not simply do a test a using First Alert Radon test. My understanding is that KY does not requiring certification or licensing for radon testing. Also, since the test is a lab result, can I not simply have a separate short form, signed by the client, that releases me from liability of any false reading in a lab report?

Steve’s answersick house

I’m not sure where the idea that  KY does not requiring certification or licensing for radon testing” came from, but it was not a PLI class.

KRS 211.9101 – 9133 requires radon “certification” to “conduct radon measurement” (and lab analysis, or measurement, etc.), at KRS 211.9107, and set up a the process.    http://www.lrc.ky.gov/Statutes/statute.aspx?id=39799

So far, CHFS (the Cabinet for Health and Family Services) has put the details and mechanism in place for its own certification.  Instead, it has taken the position that certification by either nationally recognized group set up in the late 90s by the EPA to take over radon certification would comply with the Kentucky law.  Those are the National Radon Safety Board (NRSB) and the National Environmental Health Association (NEHA) (recently renamed NRPP, the National Radon Proficiency Program, after a lawsuit).

For anyone to “do a test” for radon lawfully therefore requires certification.  I doubt the “radon police” would come knocking at your door for breaking the law this year.  But you should expect it to blow up sooner or later.  Often, it comes up in an argument or litigation with a client who is trying to pick apart every sin of some inspector who got them mad.  “And on top of all that, he is illegally selling unlawful, junk radon tests!!!”

RadonArt

As for the First Alert DIY radon kits, http://www.firstalert.com/home-security/environmental-test-kits/home-test-kits/rd1 and http://www.firstalertstore.com/store/products/rd1-radon-test-kit.htm, a DIY test may not infringe the statute.  But these kits do the worst job of any testing devices.  (First Alert advertises they are “listed” by the EPA, and always avoids saying what they are, except for lines like “sensor N/A.”  It’s true the type of device, a charcoal test tube, is at the bottom of the “list” or inventory of radon gear surveyed by the EPA — for many reasons.  But they EPA does not endorse or approve equipment, it just catalogs whatever is out there.  Full details on testing equipment choices are party of every radon certification class.)

So a homeowner — not a buyer — who tests his own home with a widget, or charcoal monitor, would not be chased by the CHFS.  But a home inspector who radon tests someone else’s home, particularly for a fee, would be violating several Kentucky statutes.  And, if he used charcoal monitors like the First Alert, he’d be doing what is widely recognized by NRSB and NEHA-NRPP, as the most unreliable and troubled test.

Finally, you can have the client sign a piece of paper, of course.  But a “release from liability” for a knowing and intentional violation of law is as ineffective as a trying to enforce a contract to sell your wife and children into white slavery (to use an illustration from class, when we discuss “unlawful purpose” and contract enforcement).  It would be heaven for any fraud artist or criminal if they could get the victim they were suckering to just sign a paper saying it was OK.  Then the “Wolf of Wall Street” could get a “get out of jail” free pass to keep ripping off people.  You should start from the idea the law and courts makes sense, even if it is not perfect.

Last but not least, to reiterate, this conversation is a educational discussion of the pertinent requirements and information but does not create an attorney-client relationship between us.  Only your attorney can definitively advise concerning legal requirements in your particular situation.

 

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