CABINET FOR HEALTH AND FAMILY SERVICES

Department for Public Health

Division of Public Health Protection and Safety

(Amended After Comments)

 

      902 KAR 95:040. Radon Contractor Certification Program.

 

      RELATES TO: KRS Chapter 13B, 211.180(1)(a), 211.9101 - 211.9135

      STATUTORY AUTHORITY: KRS 194A.050(1), 211.090(3), 211.9109, 211.9111, 211.9115, 211.9121, 211.9127, 211.9135(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to operate the programs and fulfill the responsibilities vested in the cabinet [211.9135(1) and (2) require the Cabinet for Health and Family Services to be the regulatory agency for the control of radon and radon activities in the Commonwealth of Kentucky, including laboratory analysis, mitigation, and measurements]. KRS 211.9135(3) requires the cabinet to promulgate administrative regulations to administer, coordinate, and enforce KRS 211.9101 to 211.9135. This administrative regulation establishes[general] requirements for the certification of an individual or laboratory to[individuals who] perform radon measurement, radon mitigation, or laboratory analysis.

 

      Section 1. Definitions. (1) "AARST" means the American Association of Radon Scientists and Technologists.

      (2) "ABIH" means the American Board of Industrial Hygiene.

      (3) "AIHA" means the American Industrial Hygiene Association.

      (4) "ANSI" means the American National Standards Institute.

      (5) "ASTM" means ASTM International[(3) "ANSI-AARST" means those standard operating procedures or practices developed and maintained by the AARST Consortium on National Radon Standards for radon measurement, mitigation, or laboratory analysis]. [(4) "Commercial building" is defined by KRS 211.9101(7).

      (5) "EPA" means the Environmental Protection Agency.]

      (6) "Mitigation system" is defined by KRS 211.9101(21).

      (7)["Multi-family housing" means a commercial building with attached family dwellings that:

      (a) Are occupied by residents who are primarily permanent in nature;

      (b) Are greater than four (4) units or three (3) stories in height; and

      (c) Contain an independent heating, ventilation, and air conditioning (HVAC) system.

      (8)] "NRPP" means the National Radon Proficiency Program.

      (8) "NRSB" means the National Radon Safety Board.

      (9)[(9) "NRSB" means the National Radon Safety Board.

      (10)] "Picocuries per liter" or "pCi/L" means a unit of radioactivity corresponding to one (1) decay every twenty-seven (27) seconds in a volume of one (1) liter, or 0.037 decays per second in every liter of air.

      (10)[(9)] "WHO" means the World Health Organization [(11) "Residential building" is defined by KRS 211.9101(28)].

 

      Section 2. Certification Requirements. (1) A person shall be eligible to be certified as a radon measurement contractor or a radon mitigation contractor if the individual:

      (a) Submits to the cabinet:

      1. A completed[An application on cabinet Form] DFS-375, Application for Certification for Radon Contractors and Laboratories;

      2.[A two (2) inch by two (2) inch passport photo;

      3.] Verification of completion of a cabinet-approved[an AARST-NRPP or NRSB] course and exam pursuant to Section 5(3) of this administrative regulation;

      3.[4.] The fee[fees] established in Section 3(2) of this administrative regulation;

      4.[5.] A quality assurance plan that meets the requirements established in Section 4(1) or[and] (2) of this administrative regulation; and

      5.[6.] Evidence of financial responsibility in accordance with KRS 211.9109(1)(f); and

      (b) Adheres to the requirements established in KRS 211.9123 if the individual is a non-resident of Kentucky.

      (2) A radon laboratory shall be eligible for certification if the entity:

      (a) Employs a minimum of one (1) individual who is a Kentucky certified radon measurement contractor;

      (b) Submits to the cabinet:

      1. A completed[An application on cabinet form] DFS-375, Application for Certification for Radon Contractors and Laboratories;

      2. The fee[fees] established in Section 3(2) of this administrative regulation; and

      3. A quality assurance plan as established in Section 4(3) of this administrative regulation; and

      (c) Adheres to the requirements established in KRS 211.9123 if the entity is a non-resident analytical laboratory that is seeking reciprocity.

      (3) A contractor with a dual certification as a radon measurement contractor and a radon mitigation contractor shall:

      (a) Maintain a separate certificate[license] for each discipline; and

      (b) Adhere to the limitations established in KRS 211.9117(1) and (2).

      (4) Only radon measurements performed by a certified radon measurement contractor shall be reported or disclosed to another party.

      (5) A certified radon measurement contractor employee working exclusively for a certified radon laboratory shall not be required to meet the insurance and quality assurance requirements established [outlined] in subsection (1) of this section.

 

      Section 3. Schedule of Fees. (1) The fees required by subsection (2) of this section shall be:

      (a) Nonrefundable;[and]

      (b) Submitted with an application for initial certification or certification renewal; and

      (c) Made payable to the Kentucky State Treasurer.

      (2)(a) The fee for initial certification shall be $250.

      (b) The annual renewal fee shall be $250.

      (c) The annual fee for reciprocity meeting the requirements of KRS 211.9123 shall be $250.

      (d) The fee for a duplicate certificate shall be twenty (20) dollars.

      (e)[(d)] The fee for late renewal shall be $100.

      (f) The annual fee for inactive certification status shall be $100.

 

      Section 4. Quality Assurance Plan and Standard Operating Procedures. (1) A person certified as a radon measurement contractor shall submit for cabinet approval a quality control program plan that includes:

      (a) A[quality] statement committing to provide quality work;

      (b)[A description of the management and structure of the organization;

      (c)] A listing of personnel and personnel qualifications and training;

      (c)[(d)] A description of types of radon measurements performed and other related services offered;

      (d)[(e)] A description of measurement types and devices the measurement contractor will utilize in conducting measurements;

      (e)[(f) A list of equipment serial numbers, model numbers, and calibration records used in performing analytical analysis;

      (g) A list of manufacturers and test types used while conducting measurement for laboratory analysis;

      (h) A worker protection program that includes the methods utilized to minimize or reduce the amount of radon or radon progeny exposures in the work area;

      (i) Procedures for procuring and storing measurement devices and materials;

      (j) Procedures for maintaining documents and records;

      (k) Procedures for calibrating and testing instruments;

      (l) A corrective action program;

      (m) Examples of forms, reports, and correspondence used in communications;

      (n) A description of the quality assurance measures including the:

      1. Evaluation criteria; and

      2. Frequency of the evaluations;

      (o)] A statement of compliance with cabinet-approved[ANSI-AARST] standard operating procedures pursuant to Section 5(3) of this administrative regulation; and

      (f)[(p)] The location where records are retained in accordance with KRS 211.9131(3).

      (2) A person certified as a radon mitigation contractor shall submit to the cabinet a quality control program plan that includes:

      (a) A[quality] statement committing to provide quality work;

      (b)[A description of the management and structure of the organization;

      (c)] A listing of personnel and personnel qualifications and training;

      (c)[(d)] A description of all types of radon mitigation methods performed and other related services offered;

      (d)[(e)] A description of diagnostic testing methods utilized in designing mitigation systems; [(f) A worker protection program that includes the methods utilized to minimize or reduce the amount of radon or radon progeny exposures in the work area;

      (g) Procedures for maintaining documents and records;

      (h) Procedures for calibrating and testing instruments;

      (i) A corrective action program;

      (k) Examples of forms, reports, and correspondence used in communications;

      (l) A description of the quality assurance measures including the:

      1. Evaluation criteria; and

      2. Frequency of the evaluations;] and

      (e)[(m)] A statement of compliance with cabinet-approved [ANSI-AARST] standard operating procedures pursuant to Section 5(3) of this administrative regulation.

      (3) A certified radon laboratory shall submit to the cabinet a quality control program plan that includes:

      (a) A statement committing to provide quality work;

      (b) A listing of personnel and personnel qualifications and training;

      (c) A description of laboratory services performed and other related services offered;

      (d) Documentation of enrollment and good standing within an independent laboratory accreditation program; and

      (e) A requirement that all radon laboratory analyses shall be conducted in compliance with applicable state and federal laws.

      (4) A [person certified as a radon measurement contractor shall conduct measurements in accordance with the following standard operating procedures and quality assurance protocols:

      (a) Residential building measurement: ANSI-AARST Protocols for Radon Measurements in Homes (MAH 2005);

      (b) Multi-family building measurement: ANSI-AARST Protocol for Conducting Radon and Radon Decay Product Measurements in Multifamily Buildings (MAMF-2012); and

      (c) Quality assurance protocols: EPA Protocols for Radon and Radon Decay Product Measurements in Homes (EPA 402-R-92-003).

      (4) A person certified as a radon mitigation contractor shall conduct mitigations in accordance with the following standards:

      (a) Residential building active mitigation: ANSI-AARST Active Soil Depressurization Radon Mitigation Standards (ASD RMS) for Low Rise Residential Buildings;

      (b) Multi-family active mitigation: ANSI-AARST Radon Mitigation Standards for Multifamily Buildings (RMS-MF(PS)-2013); and

      (c) Residential building passive mitigation: ANSI-AARST Reducing Radon in New Construction of 1&2 Family Dwellings and Townhouses (CCAH-2013).

      (5) All] mitigation system[systems] shall:

      (a) Be designed to reduce a radon concentration in each area within the footprint of the building as low as reasonably achievable (ALARA); or[and]

      (b) Achieve a radon level below the U.S. Environmental Protection Agency’s action level of four and zero-tenths (4.0) picocuries per liter for all post mitigation testing.

      (5) Prior to mitigation, educational material about radon levels shall be provided to the client.

      (6)[Failure to achieve a reduction below the EPA’s action level of four and zero-tenths (4.0) picocuries per liter shall require additional radon mitigation and testing until the level is achieved.

      (7)] Upon modification to a component of the quality assurance program plan, the radon measurement or mitigation contractor shall resubmit the plan to[for approval by] the cabinet [prior to implementation of the modifications].

      (7) If a deviation from cabinet-approved operating procedures occurs, the measurement or mitigation contractor shall document the reason for the deviation in the inspection report provided to the client.

 

      Section 5. Training and Continuing Education Requirements. (1) Continuing Education.

      (a) Measurement contractors shall acquire eight (8) hours of continuing education credits per year.

      (b) Mitigation contractors shall acquire eight (8) hours of continuing education credits per year.

      (c) A certified person shall be responsible for submitting proof of continuing education in accordance with KRS 211.9109, 211.9111 [211.911], 211.9115, or 211.9127.

      (d)[A person dually certified as a radon measurement and mitigation contractor shall acquire sixteen (16) hours of continuing educational credits per year.

(e)] Continuing education units shall be obtained from a cabinet- [NRPP or NRSB] approved course in accordance with subsection (3) of this section[courses].

      (2) Certification Courses.

      (a) Measurement contractor initial certification courses shall be a minimum of sixteen (16) hours of in-person[supervised] instruction.

      (b) Mitigation contractor initial certification courses shall[be]:

      1. Be a minimum of sixteen (16) hours of in-person[supervised] instruction; and

      2. Include an additional four (4) hours of hands-on field work at a mitigation site.

      (3) A radon training course or standard operating procedure shall be cabinet-approved if issued by the:

      (a) AARST;

      (b) ABIH;

      (c) AIHA;

      (d) ANSI;

      (e) ASTM;

      (f) NRPP;

      (g) NRSB; or

      (h)[(g)] WHO[(c) Measurement and mitigation contractors shall obtain an additional one (1) hour of course content on the requirements of this administrative regulation and KRS 211.9101 through 211.9135].

 

      Section 6. Renewal of Certification. (1) Each annual certification shall expire on June 30.

      (2) A person seeking renewal of certification shall:

      (a) Meet the requirements in accordance with Section 2 of this administrative regulation; and

      (b) Submit to the cabinet a minimum of thirty (30) calendar days prior to certification expiration:

      1. A completed renewal application on[cabinet Form] DFS-375, Application for Certification for Radon Contractors and Laboratories[, a minimum of thirty (30) calendar days prior to certification expiration. Form DFS-375 shall be deemed submitted on the date that it is received by the cabinet];

      2. The fee[fees] established in Section 3 of this administrative regulation;

      3. Proof of fulfillment of continuing education requirements as established in Section 5(1) of this administrative regulation;

      4. An updated quality assurance plan that meets the applicable requirements established in Section 4 of this administrative regulation; and

      5. Evidence of financial responsibility in accordance with KRS 211.9109(1)(f).

      (3) A certification[Certifications] not renewed within thirty (30) days after the renewal date shall pay a late renewal fee as established in Section 3(2)(d) of this administrative regulation.

      (4) A certification[Certifications] not renewed within ninety (90) days after the renewal date shall lapse and may only be reinstated in accordance with KRS 211.9121(3).

 

      Section 7. Termination of Certification and Inactive Certification. (1) A certified radon measurement contractor or radon mitigation contractor shall notify[be responsible for notifying] the cabinet in writing upon electing to terminate certification.

      (2) A person previously certified by the cabinet and not engaged in radon measurement or mitigation in the Commonwealth but desiring to maintain certification may request and be granted inactive status.

      (a) If inactive status is granted, the person shall:

      1. Pay the certification fee established in Section 3(2)(e)[(b)] of this administrative regulation; and

      2. Be exempt from the continuing education requirements.

      (b) A certified radon contractor on inactive status may petition the cabinet for renewal of active certification. If a certified radon contractor on inactive status wishes to renew active certification, the petitioner shall meet the requirements of this administrative regulation.

 

      Section 8. Certification Denial, Suspension, or Revocation. A certification[Certifications] shall be subject to denial, suspension, or revocation in accordance with KRS 211.9125.

 

      Section 9. Reporting Requirements. (1) A person, business entity, or analytical laboratory shall submit a report to the cabinet on a semi-annual[quarterly] basis after a:

      (a) Radon or radon progeny test;

      (b) Radon mitigation activity;

      (c) Modification to any component of the radon contractor’s quality assurance program plan; or

      (d) Request from the cabinet.

      (2) The report shall include the:

      (a) ZIP Code or [of] location of the building; and

      (b)[Name and telephone number of the owner or owners of the building where the radon testing or mitigation activities were conducted; and

      (c)] Results of[any] tests performed.

      (3) The results for each measurement conducted shall include the:

      (a)[Method used for radon or radon decay product testing;

      (b) Conditions under which the test or tests were conducted;

      (c) Location or locations within the building where the test or tests were conducted;

      (d)] Results of the test or tests in picocuries per liter (pCi/L) of radon gas;

      (b)[(e)] Date on which the test or tests were conducted; and

      (c)[(f) Purpose of the test or tests.

      (4) The mitigation report shall include the:

      (a)] Type of structure measured[mitigated;

      (b) Type of mitigation system installed;

      (c) Location of mitigation system within the structure;

      (d) Post-mitigation measurements;

      (e) Floor plan of the structure with the location of a mitigation system; and

      (f) Diagnostic and communication testing].

 

      Section 10. Administrative Hearings. A person, business entity, or analytical laboratory[Persons, business entities, and analytical laboratories] shall be afforded an opportunity for an administrative hearing in accordance with KRS Chapter 13B.

 

      Section 11. Penalties. The cabinet may assess civil penalties in accordance with KRS 211.9125 against any individual in violation of any cabinet administrative regulation pertaining to radon measurement, mitigation, or laboratory analysis.

 

      Section 12. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) Form ]"DFS-375, Application for Certification for Radon Contractors and Laboratories", 8/2017[5/2017], is incorporated by reference [9/2012;

      (b) "Protocols for Radon Measurements in Homes (MAH 2005)", 9/2005;

      (c) "Protocol for Conducting Radon and Radon Decay Product Measurements in Multifamily Buildings (MAMF-2012)", 2012;

      (d) "Protocols for Radon and Radon Decay Products Measurements in Homes (EPA 402-R-92-003)", 5/1993;

      (e) "Active Soil Depressurization Radon Mitigation Standards (ASD RMS) for Low Rise Residential Buildings", 6/2006;

      (f) "Radon Mitigation Standards for Multifamily Buildings (RMS-MF(PS)-2013)", 2013; and

      (g) "Reducing Radon in New Construction of 1&2 Family Dwellings and Townhouses (CCAH-2013)", 12/2013].

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Public Health, 275 East Main Street, Frankfort, Kentucky 40621[40602], Monday through Friday, 8 a.m. to 4:30 p.m.

 

HIRAM C. POLK, JR., MD

VICKIE YATES BROWN GLISSON, Secretary

      APPROVED BY AGENCY: August 8, 2017

      FILED WITH LRC: August 14, 2017 at 2 p.m.

      CONTACT PERSON: Tricia Orme, Administrative Specialist, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone 502-564-7905, fax 502-564-7573, email Tricia.Orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Persons: Laura Begin, Laura.Begin@ky.gov, phone 502-564-6746, ext. 3448; and Tricia Orme

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the requirements for the certification of an individual or laboratory to perform radon measurement, mitigation, or analysis.

      (b) The necessity of this administrative regulation: KRS 211.9135(3) requires the cabinet to promulgate administrative regulations to administer, coordinate, and enforce KRS 211.9101 to 211.9135, which contains the statutory requirements for radon measurement, mitigation, laboratory analysis, and quality control.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation is consistent with the requirements contained in KRS 211.9107 to 211.9135.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: KRS 211.9135(3) requires the cabinet to promulgate administrative regulations to administer, coordinate, and enforce the radon certification program and requirements contained in statute.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: This amendment adds the National Radon Safety Board as an optional organization provided radon training courses or standard operating procedures that qualify as being cabinet-approved. Reciprocity was included in the regulation, as allowed by KRS 211.9123. The fee for inactive certification was reduced from $250 to $100 per year and clarification was made as to whom the fee is made payable to. The form was amended slightly to clarify reciprocity and reflect the change in the inactive status fee. These changes were made in response to comments received.

      (b) The necessity of the amendment to this administrative regulation: Comments on the proposed administrative regulation requested clarification on a number of issues, addressed in this amended after comments version.

      (c) How the amendment conforms to the content of the authorizing statutes: The amendment administrative regulation is consistent with the requirements of KRS 211.9107 to 211.9135.

      (d) How the amendment will assist in the effective administration of the statutes: Commenters requested clarification on a number of issues, addressed in this amended after comments version of the administrative regulation.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The Radon Advisory Committee stated that there are approximately 30 radon measurement businesses, 20 radon mitigation businesses, and 20 radon laboratories in Kentucky. These are required by statute to be certified through this certification program. According to the Radon Advisory Committee, there are approximately 350 home inspection businesses that may want to perform radon measurements. Five known professional organizations are impacted by this administrative regulation – American Association of Radon Professionals, Kentucky Real Estate Inspection Association, Kentucky Home Builders Association, National Environmental Health Association, and National Radon Safety Board. There are 120 local health departments that may have staff trained for radon measurement and radon mitigation system approval. The promulgating body, the Cabinet for Health and Family Services, is the radon control agency for the Commonwealth.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Compliance with this administrative regulation by regulated entities will be easier to obtain and maintain due to the elimination or reduction of requirements included in this amendment. The amendment will also result in less administrative burden to the promulgating body.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the identities identified in question (3): There is no cost associated with this amendment, however certification fees are maintained.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Active certification and compliance with state law.

      (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

      (a) Initially: Based on the number of regulated entities provided by the Radon Advisory Committee, the certification program will cost the administrative body approximately $200,000 initially.

      (b) On a continuing basis: Based on the number of regulated entities provided by the Radon Advisory Committee, the projected costs of administering this program for subsequent years is expected to be approximately $175,000.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The certification fees contained in this administrative regulation.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new or by the change, if it is an amendment: No increase in fees or funding is associated with this amendment.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees. This administrative regulation contains certification fees, not amended in this amendment.

      (9) TIERING: Is tiering applied? No. Radon measurement or mitigation professionals and laboratories are required to be certified with the specific exceptions listed in KRS 211.9107.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Cabinet for Health and Family Services is the radon control agency for the Commonwealth. This amendment will lessen the administrative burden on the agency. Local health departments may be requested to investigate complaints.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1) requires the secretary of the cabinet to adopt administrative regulations necessary to protect the health of the individual citizens of the Commonwealth and necessary to operate the programs and fulfill the responsibilities vested in the Cabinet. KRS 211.9135(3) requires the cabinet to promulgate administrative regulations to administer, coordinate, and enforce KRS 211.9101 to 211.9135.

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year of the administrative regulation.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? There are approximately 70 entities projected to request certification at $250/year. Expected revenue would be $17,500 per year.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? Approximately $17,500 per year.

      (c) How much will it cost to administer this program for the first year? Based on the number of regulated entities provided by the Radon Advisory Committee, the cost of initial trainings, two full-time field inspectors, and an administrative person to operate this program is projected to be approximately $200,000 per year.

      (d) How much will it cost to administer this program for subsequent years? Based on the number of regulated entities provided by the Radon Advisory Committee, for subsequent years, the cost is projected to be approximately $175,000 per year.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: