Inside The Radon FREEZE —
Restraining Order Extended
REG REWRITE IN THE WORKS
The “hold” on Radon Certification in Kentucky was extended a few days ago.
Our best guess is that certification will stay on hold until after the legislature adjourns and probably until mid-year.
The Franklin Circuit Court stepped on the brakes just as the new radon certification regulations – for measurement specialists and mitigators – were set to kick in on July 1, 2015.
Today, the regulation basically is being rewritten. It looks like the radon statutes may get a makeover too.
The topics cover the waterfront – from “grandfathering” existing professionals to continuing education (CE) for renewals. Special provisions for home inspectors are on the agenda. After all, a home inspector’s time on site – and, so, their exposure – is controlled by regulations saying what inspectors have to do. The leading items in negotiations follow below.
The birthday for the regulation, July 1, instead became the day the Franklin Circuit Court said to stop the music. The Franklin Circuit handles most state government cases. It issued a Temporary Restraining Order putting the certification regulations on ice as of July 1, 2015. The order was entered on July 6, 2015.
What iced all the action? It quickly became obvious that everybody needed to put together passable amendments to the law to get everything truly fixed in the regulations. So negotiations suddenly came to life when the General Assembly session started.
The General Assembly is in its fourth week now. Feb. 19 is the last day for bill requests. March 1 is the last day for new House bills. The deadline is March 3 for new house bills. That is not much time to spare. The last day of the session will be March 25, for all practical purposes. There already is a fallback, however. A bill is filed and in committee dealing with radon certification. HB 272 would amend KRS 211.9107 to exempt from the certification requirements any residential building contractor installing passive system vent pipes. In a pinch, HB 272 might be amended to pick up the pieces.
The end game for the statutes will make a real difference. But the laws and the regulation both had holes big enough to sink the Corvette Museum. This is like the Sgt. Schultz category of regulations. “I see noooothing” – like not a word about grandfathering, or info for the public, or course approval, or instructors, or lots more. The regulation really focuses on protecting incumbents and raising barriers to competition when it’s not trying to feed money somewhere – lots more than the regulation prioritizes public health goals – like supplying radon education, testing, notification of health risks, and mitigation to Kentuckians, or having agents explain the value added to a home by mitigation systems. (Some people imagine a boogeyman instead.)
Within the existing statutes, there actually is plenty that can be done just by cleaning up the certification regulation. Everyone in the lawsuit is working on that right now, as you read this.
Here is a “hit parade” of top issues that are in focus for negotiators today.
- “Grandfathering” still is up in the air, and a key issue.
The legislature just left it out – which is pretty unusual. Practically all new licensing laws provide for existing practitioners in the newly licensed occupation to keep their jobs and carry on as before – also known as “grandfathering.” Tweaking the regulation, alone, cannot change specific requirements for certification in the statutes. The measurement certification law requires a radon measurement course, passing an exam, and a quality control plan. KRS 211.9109(1)(c), (e); (2)(b). http://www.lrc.ky.gov/Statutes/statute.aspx?id=42260. The mitigator law requires the same. KRS 211.9111(1)(c), (e); (2)(b). http://www.lrc.ky.gov/Statutes/statute.aspx?id=42261
In principle, that’s fine. As long as the regulation does not get in the way, testers and mitigators should be fine with the course and exam part, under any of the nationally accepted certifications, such as NRSB and NEHA/NRPP, used to practice under prior law. The existing reg seems to agree, at Sec. 2(1)(a)3. PLI has provided such courses, and hosted both national exams, for years. They should be the heart of “grandfathering” (the process of certifying pros who were doing the licensed occupation before there was licensing).
But nobody had to send in QA plans before.
Even so, responsible pros have QA plans, often from equipment vendors. The problem here may boil down to the Cabinet for Health and Family Services (CHFS), which issue the radon licenses (aka “certification”), saying what it wants in QA plans and publishing examples. All testing equipment vendors have posted QA plans keyed to their gear. This really should not take “reinventing the wheel” – or covert marketing of some merchant’s Model QA Plan for sale.
At least a dozen other issues may be fixable by revising the certification regulation. Here are the leading examples in the far turn:
- Home inspectors will be recognized under revised regulation.
They are blurred in with everyone else in the present version. For example, the regulation on ice calls for a “worker protection program” for measurement specialists, as part of the QA plan. But home inspectors will do the same inspection, with the same time on site, radon or no radon. That will not change, even if CHFS counted up exposure down to the pCi/L, because that would not change. Nor is there any reason to believe it should.
Mitigators may be a different story, but the regulation overlooks the difference. Even then, OSHA probably covers the general idea.
- QA plans (Sec. 4 of the frozen regulation), in general, will get revised rules.
QA planning should have data-driven, scientific standards to meet, instead of playing favorites among various sellers or groups competing to do better jobs. The science and the market will always be in front of government regulations, so it almost always does faster improvements. The regulation on hold constantly builds in AARST, and the first CHFS “CE class” under that reg turned into a sales pitch for AARST products (for you, a special price, $250 for the QA of your dreams! But wait! There’s more! If you order now….). While AARST has plenty to commend it, so does the EPA (which gets mentioned just once!). It’s not the only fish in the sea.
- Reporting requirements were smuggled into the frozen regulation, after reporting was specifically deleted from the statute by the General Assembly (11RS HB247 SCS).
Reporting test results should be considered functionally vetoed by the legislature from the git-go. Instead, CHFS is looking more at lightening the load than dropping it, the way the General Assembly did. For example, it is floating ideas like annual reporting, with results by zip code with just results, date, and broad structure type (home, school, commercial).
Homebuilders are against reporting in general, and were promised it would not be done when they agreed to support the law when it passed in 2011. They believe it will hurt property values and stigmatize whole subdivisions and neighborhoods, on top of invading people’s privacy.
- Mitigator conflicted interests are coming up again. They always do. This is an evergreen.
Right now, the statute rules out mitigators testing homes to see if radon mitigation is needed. KRS 211.9117(2), http://www.lrc.ky.gov/Statutes/statute.aspx?id=42263. See also KRS 211.9111(2)(d). If any issue has gone ‘round and ‘round, this is it. Already, it’s been in, and it’s been out. Many people see a built-in conflict. When the seller profits by mitigating, having the same seller testing to see if mitigation is needed just fails the smell test. It sounds like setting up the wrong incentives and temptations. It is true that no one carries around a bottle of radon gas to fudge tests. But the problem is in the reporting, not the testing equipment.
In fact, avoiding that conflict was a key target when the General Assembly amended the radon certification law in 2013. The 2013 bill took dead aim at what was seen as misplaced incentives for mitigators who, at first, had an exemption from the rule against conflicting interests. The 2013 amendment made only three changes – and one of them was to delete the “diagnostic-purposes-only” exemption for mitigators. The change prohibited anyone dually certified as both a measurement and a mitigation contractor from determining the need for mitigation in a building they were mitigating.
CHFS pushed to get that law passed. So did the Radon Program Advisory Committee, whatever it really was. Somebody needs to make up their mind. A fair number of legislators may think they already have.
- Courses and training criteria will be laid out for the first time.
There’s not a word about either in the regulation, outside a requirement for pre-certification courses and continuing education (CE). KRS 211.9109, 211.9111, and 211.9127 all call for courses. http://www.lrc.ky.gov/Statutes/statute.aspx?id=39809. But when it came time for CHFS and the Health Dept to put the first CE courses on, people attending it felt somewhere between suckered and ripped off.
Clear criteria for courses that actually educate, and are not sales pitches, are essential in every field. Basic requirements like surety bonds are routine at the Ky Commission for Proprietary Education. For years, realtors had the same issues. It will be a real step toward getting serious educators, and seriously good courses, delivered to radon pros who are obliged to take them under the statutes. It also creates a deeper bench for a CHFS “speakers bureau” to help get the word out to the public.
- Handouts. Requirements for mitigators to hand out brochures or other info to help consumer are on the table.
It would not hurt for CHFS, working with KREC, to require agents to hand out info to every home buyer and seller too. EPA offers several good brochures for free. Everyone remembers an agent who told a buyer not to test for radon “because she couldn’t smell any radon in this house” or “there’s never radon where there’s a basement.”
- Fees, always fees (Sec. 3). Who isn’t looking for a break?
Fees mount up and who knows where they end up. About $300,000 in home inspector license fees ended up swept into the black hole of the state General Fund, just because that licensing board never spent it, on things like public service announcements informing the public or brochures.
Nobody really frets about fees that further the mission. Too many licensing/certification operations turn into slush funds that somehow never trickle down to licensees or the public.
One fee option is letting home inspectors pay less to test, since it is basically a sideline.
- Reciprocity looks like it will get a fix.
Ohio and Pennsylvania have more stringent requirements overall than anything here, for example. The current statute provides for restricted reciprocity, KRS 211.9123. http://www.lrc.ky.gov/Statutes/statute.aspx?id=39807. But the regulation does not touch it. Mum’s the word, as far as the regulation goes. Dual licensing always is the worst option. That’s really faux reciprocity. It also means double the annual license fees, CE, and the rest. Think of getting a drivers license for every state you might drive in. Your drivers license is a good example of true reciprocity.
- Exemptions. Every time a licensing law gets revised, somebody wants to do the work without the license (and those fees).
It’s true that everything is getting licensed this century, and the paperwork plus fees plus cost like insurance all mount up.. The pitch here is that licensed professional engineers, certified industrial hygienists, and architects all have ethics rules that require providing services only when qualified. Their idea is that they’re qualified without passing the national exam, etc. Once again, the statutes set out specific requirements for radon contracting. Making this fly probably ends back at the General Assembly too.
One last thing: We think this a a pretty good, up-to-date summary of where the radon certification process stands. But there’s no guarantee where it goes. All the people we talked to about this wanted not to be quoted or have their names in print. Use something like “informed sources,” we were told. We’ve got a better idea: Just blame Steve for the everything. Everybody blames Steve. He’s got broad shoulders, and a big smile. Besides, he knows a good lawyer.
And if you have any comments or feedback, let us know. Or if you want to talk up changes in the law with your friendly neighborhood state legislator, give us a heads up. We’ll see that it gets back to those informed sources.
Check on the frozen regulation: http://www.lrc.ky.gov/kar/902/095/040.htm.