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.
Emerging Markets - New Opportunities
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Emerging Markets - New Opportunities
Lead * Learn * Mentor * Contribute * Communicate
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.
Lead * Learn * Mentor * Contribute * Communicate
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.
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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
Lead * Learn * Mentor * Contribute * Communicate
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