Elements of Radon Risk Compliance and Penalties in the Real World A look at increasing risks facing U.S. radon professionals

Elements of Radon RiskCompliance and Penalties in the Real World

A look at increasing risks facing

U.S. radon professionals

Basis of EPA/State ProgramsBasis of EPA/State Programs

• Late 1980s – the USEPA Concentrated On:– Voluntary Program – Not Risk Reduction Based– Consumer Protection from a Wild West Industry

• Industry Was the Problem – Not Radon

– Created Barriers/Threshold for Entry• Government Standards – Top Down Program

• Criteria Lite Requirements for Providers – RPP & Regional Radon Training Centers

• Assumption Education would compel States to Enforce

Emerging Markets - New Opportunities

US EPA’s Voluntary ProgramUS EPA’s Voluntary Program

Acceded to the Housing Lobby

(Real Estate and Home Builders) and Created a Cheap Voluntary System that

Would Not Interfere with Housing Sales.


Lead * Learn * Mentor * Contribute * Communicate

28 Years Later28 Years Later

• Privatized the RPP in 1998

• Reduced EPA Funding

• 4,000 Certified/Licensed in U.S.– There should be 40,000 certified

• Lacking sustainable infrastructure


Compliance Risk & ProfessionalsCompliance Risk & Professionals

• Typically– Radon Risk is talked about as Health Risk– First 20 Years – For Pros - Most Risk Contractual

• Contractual Interference – Small Claims

• Seller Complaints – Sales Transaction - Measurement

– Very Few Mitigation Complaints• Again – Mostly Contractual


The Typical Case – First 20 YearsThe Typical Case – First 20 Years

• Contract Dispute – Seller Does Not Like Test– Claims Test Results Wrong – Threatens Suit– If Buyer Reneges On Sale – Sues

• Claims Contract Inference – Goes After Lost Sale

• Minimal Impact on Profession


Compliance – 20 YearsCompliance – 20 Years

• 35 States Non-regulated– Tribal Nations/Military/Territories – No

Regulations

• 5 States Weakly Regulated

• 10 Highly Regulated States – Having State Regulations & Enforcement– Most Enforcement - Educations


Regulated Compliance – First 20 YearsRegulated Compliance – First 20 Years

• NRPP and NRSB– Suspensions and De-Certification

• Highly Regulated States– Warnings – Seeking Re-education– Fines – Minor– Some Decertification of “Bad Players”

2010 – Radon Risk Seismic Shift2010 – Radon Risk Seismic Shift

Good News – Increased Compliance

Bad News – Torts



Why Increased Compliance is Good News…Why Increased Compliance is Good News…

• $4,000 Fines for Non-Compliance Will Be the New Normal– Regulated States Have Increased Penalties– Minimal Fines Per Occurance – Significant Totals

• Such As CRM not calibrated

• Failure to Maintain QA/QC

• $100,000 fines may become the Norm.


Case Study 1 : Regulated StateCase Study 1 : Regulated State

• Reputable Licensee – 24 Years Experience– Failure to Calibrate 2 CRMs in Inventory

• Lost Paperwork

• Calibration Lab Closed – No Access to backup records

– State Tracked Usage of CRMs after Out of Calibration Date – over 8 months

– $50 fine per occurance– Total Fine Exceeded $4,000.


Case Study 3: Non Regulated StateCase Study 3: Non Regulated State

• NRPP Case in Non-Regulated State– State Submitted Compeling Evidence to NRPP– Compelling Violations of EPA RMS– State De-listed Company from Web Site– NRPP Decertified the Professional– Company was required to create QA/QC Plan

• Lost web references for 6 Months


Case Study 3:Code EnforcementCase Study 3:Code Enforcement

• Code Enforcement in Non-Regulated State– 150 Cases Electrical Wired w/o Licensed

Electrician– City Department Issued Cease and Desist Order– No Work Allowed Until Resolved

• 100 Sites Had to Be Re-wired by Licensed Electrician

• At Least $15,000 in Direct Costs

• 4-5 Weeks Lost Work in City


Case Study 4: Regulated State: KansasCase Study 4: Regulated State: Kansas

• National Company - $106,000 Potential Fine

• Non-compliance, multiple violations

• $30,000 Fine

• Signed Consent Order

• Future Requirements and Potential $76,000 Fine held in abeyance


That’s The Good NewsThat’s The Good News

• Generally, Fines Enacted by Agencies (Both Private and Public Agencies May Fine)

Seek To:– Change Behavior– Compel Compliance to recognized Standards– Protect the public and other professionals

• Termination of Certification is Last Resort


Bad News: Class Action Law SuitsBad News: Class Action Law Suits

• Ambulance Chasers Also Change Behavior

• Radon: – Significant Lawsuits Are Now Impacting The

Marketplace– Radon Torts are Now Risky – Think Millions


Class Action Case OneClass Action Case One

• Condo Association Members Sued– Property Managers, R.E. Agent, Builder and

Radon Professional– For Failure to Inform of Radon Remediation

• Lawsuit Cost Member > $700,000– Each Defendant faced individual costs

• Settlements were Extensive


Class Action Case OneClass Action Case One

• Don’t Go Along with the Customer

• Absence of a Standard is Not Absolution– Underwriting the importance of a complete set of

National Standards


Class Action Case TwoClass Action Case Two

• National Builder

– Failure to Adhere to RRNC Standard– Costly Legal Defense– Public Company – Reserved Tens of Millions– Settlement was Sealed

• Did Not Exceed Reserves


AARST-NRPP Action StepsAARST-NRPP Action Steps

• Increased Compliance Staffing

• Required QA Plan Submissions

• Audits – Cost to the Professional

• Reinstatements will be Provisional/Audited– Extra Cost– Penalties May Include Extra $$ Fees/Penalties

Documents

Elements of Radon Risk Compliance and Penalties in the Real World A look at increasing risks facing U.S. radon professionals