Amendments to Kentucky’s radon certification laws were signed by Gov. Beshear on Thursday, March 21.
They are set to become effective in June.
The amendments, known as SB66, make three major changes.
The good news is that the existing requirement that radon measurement contractors will not be required to have $500,000 of E&O (errors and omission) insurance, under SB66 amendments to KRS 211.9113.
Now, only general liability coverage of $500,000 will be required.
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, mitigators will not be allowed to approve their own work, under SB66’s amendment to KRS 211.9117.
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.
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.
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.