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(202)328-5150
September, 1994
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ENVIRONMENTAL LAW INSTITUTE
Center for Public Health and Law
1616 P Street, N.W. Suite 200 • Washington, D.C. 20036
(202) 328-5150
September, 1994
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Copyright ©1994 Environmental Law Institute
1616 P Street N.W., Washington, B.C. 20036
Please contact ELI for information about reproducing this document.
This report was written by Tobie Bernstein, Senior Attorney at the Environmental
Law Institute. Valuable assistance and comments were provided by ELI Senior
Attorneys Paul A. Locke and Philip Warburg, ELFs Director of Publications, Adam
Babich, and ELFs Director of Kesearch, Policy and Training, EEssa Parker.
Although the research and preparation of this document were funded in part by a
grant provided by the Environmental Protection Agency, the report may not
necessarily reflect the views of the Agency and no official endorsement should be
inferred.
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TABLE OF CONTENTS
PAGE No.
EXECUTIVE SUMMARY i
INTRODUCTION 1
I. THE PROBLEM OF RADON EXPOSURE 2
A. Background: The Radon Problem Generally 2
B. Current Public Policy Strategies for
Reducing Radon Hazards 3
C. The Need for a Unique Approach to Reducing
Radon in Rental Housing 7
IL RADON AND RENTAL HOUSING: THE LEGAL LANDSCAPE 8
A. liability for Damages Resulting from
Hazardous Conditions 9
1. Background 11
2. Radon and Landlords' liability
for Defects 11
3. Strategies for Addressing Landlord liability
for Damages Resulting from Radoa Exposure 13
B. Radon Disclosure, Testing and Mitigation in the
Sale or Transfer of Rental Properties 13
1. Background 14
2. Strategies for Promoting Radon Testing,
Disclosure and Mitigation in the Sale
of Rental Property 15
C. Radon Disclosure, Testing and Mitigation in the
landlord-Tenant Relationship 17
1. Disclosure of Radon Information to Tenants 17
2. Radon Testing and Mitigation: The Duty to
Maintain Rental Premises 19
D. Building Codes Applicable to Rental
Housing Construction , 26
1. Background 27
2. Strategies for Promoting Radon-Resistant
Construction in New Residential
Rental Buildings 28
E. Conclusion 29
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ffl. PROGRAMS ADDRESSING THE COST OF RADON MITIGATION IN
RENTAL HOUSING 30
A. Grants and Loans for Radon Risk Reduction 31
1. Creation of a Federal Grants Program 31
2. Creation of a State Radon
Assistance Program 32
3. Application of Related Funding Programs
to Radon Risk Reduction Activities 34
B. Tax Credits 35
C. Direct Assistance 36
D. Facilitating "Self-Help" Radon Mitigation
in Rental Housing 39
IV. CONCLUSION 41
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EXECUTIVE SUMMARY
Background
During the past several years, there has been considerable attention focused on the
problem of radon, a colorless, odorless and tasteless gas produced by the decay of uranium.
Radon is found in homes and buildings throughout the United States, and enters the body
mainly through inhalation, thereby damaging cells in the lung. The U.S. Environmental
Protection Agency (EPA) has designated radon a Class A carcinogen, and estimates that
radon exposure is associated with between 7,000 and 30,000 cancer deaths each year.
The radon outreach and education programs of EPA, state and local government
agencies, and private organizations have helped to increase greatly public awareness of this
environmental health hazard. In the residential context, this work has focused almost
exclusively on promoting radon testing and mitigation in single family, owner-occupied
homes. There have been few, if any, initiatives targeted at reducing exposure to high radon
levels in rental housing.
This absence is notable, given that rental units comprise a considerable portion of
the homes in the United States -- over one-third of all housing units in the country in 1989.
In that year, 34 million units, or 36 percent of all occupied units, were occupied by renters.
Moreover, there are indications that rental housing is increasing at a greater rate than
owner-occupied housing; of the total increase in households during the 1980's, rental
households increased by 17 percent, as compared to 10 percent for owner-occupied
households.
Rental properties are different from owner-occupied properties in ways that create
challenges for developing radon risk reduction programs. In addition to the physical
differences between larger multifamily rental buildings and single family homes, there are
significant legal and financial differences in the status of tenants and home owners. In the
rental housing context, the individuals exposed to radon are not those with the legal or
financial control to undertake radon mitigation on the premises . Questions of control
aside, tenants may feel that they do not have a sufficient economic stake in the property to
undertake radon mitigation, or that they will not reside in the property long enough to
warrant undertaking radon mitigation. In addition, renters are more likely to lack the
financial means to undertake mitigation. In 1989, median household income was 84 percent
higher for owners than renters — $33,300 for owners. compared to $18,100 for renters.
Therefore, many tenants simply cannot afford the cost of radon mitigation, even if they have
the authority to mitigate and the interest in doing so.
Radon risk reduction strategies that do not focus on rental housing directly, and do
not address the key differences between rental and owner-occupied dwellings, will likely fail
to reduce significantly exposure to high radon levels in rental buildings.
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To address tMs problem, policy makers should take a two-pronged approach: the
adoption of legal requirements relating to radon in rental housing, and the development of
programs to help fund radon testing and mitigation in rental housing that is home to lower
income families. Although legal requirements for radon testing, disclosure and mitigation
in rental housing will impose costs on the private and public sectors, the evidence .to date
of lives lost each year to radon-related lung cancer presents compelling grounds for taking
action to ensure that tenants are not exposed to high radon levels in the homes they lease.
Nevertheless, such measures cannot be relied on exclusively. That segment of the rental
housing stock that is financially marginal — ie., properties that generally house lower income
residents — may be unable to support the costs of compliance with radon-related
requirements. Therefore, programs to help finance the cost of mitigating unacceptable
radon levels are crucial to pursuing the goal of radon risk reduction while preserving
affordable housing.
Legal Requirements for Radon Testing, Disclosure and Mitigation in Rental Housing
1. Liability for Damages Resulting from Housing Conditions. Potential tort liability
does not currently influence significantly radon testing and mitigation decisions in rental
property. Potential tort liability can be clarified through legislation that addresses the duty
of landlords with respect to radon testing and mitigation. However, tort litigation should
not be relied on as the primary vehicle for implementing a landlord's duty to address high
radon levels.
2. Radon Disclosure, Testing and Mitigation in the Transfer or Sale of Rental
Properties. Because prospective purchasers of rental properties will be concerned with the
condition of the property, particularly to the extent that the condition may lead to liability
on the part of the purchaser, mitigation of high levels is more likely to occur if actual radon
levels are disclosed. Although mandatory testing alone may trigger remediation in many
cases, the potential health risks to third parties (tenants) present strong policy justifications
for making mitigation of high levels mandatory in connection with the transfer of rental
properties. Moreover, this approach takes advantage of the real estate transaction as an
opportunity for negotiating the costs of radon testing and mitigation.
3. Radon Disclosure, Testing and Mitigation in the Landlord-Tenant Relationship.
Existing landlord-tenant doctrines and laws that address tenant safety and health do not
explicitly refer to radon problems in rental housing. These doctrines should be expanded
to include protection from exposure to high radon levels. Disclosure of radon levels
presents an opportunity for educating tenants and for assisting tenants in ensuring that
landlords comply with their obligations regarding radon in the property.
In addition to disclosure, states can require owners to ensure that rental units contain
acceptable levels of radon, as defined by the state. Existing legal doctrines such as the
implied warranty of habitabffity, which has been adopted in many states, provide a vehicle
for tenants to seek radon mitigation by the landlord. Legislation to clarify the landlord's
duty to ensure acceptable radon levels in rental property represents another important
means of promoting radon risk reduction. Such legislation might create an independent
statutory duty to reduce unacceptable radon levels; amend an existing statute requiring
landlords to repair unsafe conditions; or amend an existing housing code.
ii
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4. Building Codes Applicable to Rental Housing Construction, Radon-resistant new
construction techniques can help prevent,the problem of high radon levels in new rental
housing. To effectively address new rental housing construction, EPA can continue to
encourage, and state and local governments can adopt, radon-resistant new construction
code provisions. These efforts should be expanded to develop and promote radon-resistant
techniques that are applicable to multistory structures, which contain a substantial number
of rental housing units. The use of radon-resistant features could be required as a condition
of receiving federal or state assistance for the construction of new rental housing.
Programs Addressing the Cost of Radon Mitigation in Rental Housing
Creating programs to ease the financial burden of radon reduction in affordable
rental housing requires not only establishing radon reduction in rental housing as a priority,
but also creating mechanisms to fund such a program. At a time of shrinking budgets and
program cutbacks, targeted funding for a radon reduction assistance program is critical.
1. Grants and Loans for Radon Risk Reduction, Federal and state legislatures
could provide loans with interest subsidies or grants for radon testing and mitigation through
a variety of mechanisms, including: a) creation of a new federal grants program; b) creation
of a new state radon assistance program, which might be funded in part through federal
radon program grants to the states; or c) application of related funding programs — such as
the federal Community Development Block Grant (CDBG) and HOME programs or
existing state programs — to radon risk reduction activities.
2. Tax Credits. Tax credits could be provided to owners who undertake radon
mitigation, covering a certain dollar amount or a specified percentage of the costs incurred.
Such credits could also be provided to radon professionals who demonstrate that they have
provided free radon mitigation services to low income properties.
3. Direct Assistance. Some states and local jurisdictions have carried out
programs to provide residents with free or low cost radon testing devices. Similarly, states
could set up programs to provide radon mitigation services directly to rental dwellings. Such
a program might be based on the current federal Weatherization Assistance Program,
through which states have established programs for providing weatherization services. A
radon mitigation program could be modeled on, or could be combined with, the
weatherization program. A key to the success of such an effort, however, is adequate
additional funding for radon mitigation services.
4. Facilitating "Self-Help" Radon Mitigation. Because some owners are
accustomed to undertaking property repairs themselves, states might design a program to
assist those owners interested in doing so. This type of program might facilitate radon
mitigation in properties that could not support the cost of commercial radon services. It is
critical to any such initiative, however, that owners be required to undergo training that
emphasizes the potential safety concerns associated with radon mitigation work. States
might consider a special certification course for those who wish to do radon mitigation only
on property they own.
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RADON IN RENTAL HOUSING:
LEGAL AND POLICY STRATEGIES
FOE REDUCING HEALTH RISKS
During the past several years, a significant amount of public and private resources
has been devoted to studying the health effects of radon, a colorless, odorless and tasteless
gas found in homes and buildings throughout the United States. Radon is believed to be
a leading cause of lung cancer and has been designated a Class A carcinogen by the United
States Environmental Protection Agency (EPA).1 In addition to its research, EPA has
conducted a large-scale public education campaign. This effort has generally sought to
encourage home owners to test their homes for radon and to reduce Mgh radon levels where
necessary. EPA's recent Home Buyers' and Sellers'Guide to Radon specifically promotes
radon testing during the home purchase and sale transaction. Other EPA publications, such
as A Citizen's Guide to Radon and the Consumer's Guide to Radon, are more generally
geared to those who own their own home.
By contrast, little has been done to address directly the problem of radon hazards in
rental housing. Rental units comprised over one-third of all housing units in the country in
1989. In that year, 34 million units, or 36 percent of all occupied units, were occupied by
renters.2 While fewer in number than owner-occupied homes, rental units are different
in ways that create challenges for developing radon reduction programs. In addition to the
physical differences between some multifamily rental buildings and single family homes,
there are significant legal and financial differences in the status of tenants and home owners.
Radon initiatives that fail to take these differences into account will likely fail to succeed
in reducing exposure to high radon levels in rental housing.
This paper reviews existing legal and policy tools for reducing radon risks and
suggests strategies for facilitating radon testing and mitigation of high radon levels in rental
housing. It will not address the distinct legal and regulatory mechanisms for addressing
radon in government owned and subsidized housing. Although the problem, of radon in
those properties is no less important, its analysis is beyond the scope of this paper.3
1 In order to be labelled a Group A carcinogen for humans, there must be sufficient epidemiological
evidence from human studies that the substance causes cancer, A. Schmidt, et al., US. EPA Office of Radiation
Programs, EPA's Approach to Assessmenlof Radon Risk (3590).
2 U.S. Bureau of the Census, Housing in America 2 (1392).
3 The question of radon in federally subsidized housing is addressed in the Stewart B. McKinney Homeless
Assistance Amendments Act of 1988, which requires the Department of Housing and Urban Development
(HUD) to "develop an effective departmental policy for dealing with radon contamination...to ensure that
occupants of [specified housing owned or assisted by HUD] are not exposed to hazardous levels of radon—"
The Act also requires HUD to work with EPA to reduce radon contamination; the agencies currently have a
Memorandum of Understanding to coordinate a pilot program for testing and mitigation in HUD-owned and
subsidized properties. IKJD-DU100I92QQ00053.
. 1
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The paper begins with some background on the problem of radon in rental housing.
Section I describes what radon is, how federal and state governments have approached the
problem thus far, and why its presence in rental housing units creates unique policy issues
that require action. The remainder of the paper describes two general components of an
effective program for reducing radon in rental housing. First, legal requirements should be
established for reducing unacceptable radon levels in rental units. Section n explores
specific areas of law that provide vehicles for establishing such requirements, and suggests
that states should utilize these areas of the law to craft requirements for radon disclosure,
testing and mitigation. Second, governmental programs should be designed to make public
sector resources available to help carry out radon reduction in rental housing occupied by
lower income families. Section ffl thus focuses on the problem of preserving affordable
housing while establishing requirements for acceptable radon levels in rental housing. That
section describes certain programs that address the cost of undertaking radon testing and
mitigation in rental properties that are home to low and moderate income families.
Ultimately, a successful program will incorporate prescriptive legal features as well as
creative policy initiatives at the federal, state and local levels.
I. THE PROBLEM OF RADON EXPOSURE
A. Background: The Radon Problem Generally
Radon is a naturally occurring gas produced by the decay of uranium, which is
present in most soil and rock, as well as in water. Radon enters the body chiefly through
inhalation, damaging cells in the lungs.4 The federal government estimates that there are
between 7,000 and 30,000 radon-related deaths each year, making radon the second leading
cause of lung cancer deaths in the country after smoking.5
These threats to health come not from ambient levels of radon, but from high indoor
concentrations of the gas. The most common way in which radon becomes concentrated
indoors is through cracks or other openings in the basement slab, or through a crawlspace.6
4 See J. Samet, "Radon, and Lung Cancer," 81 Journal of the National Cancer Institute 745-757 (May 22,
3989). As it decays, radon emits radioactive products, known as "radon progeny" or "radon daughters," which
can cause mutations in cells and tissues. Id.
5 U.S. EPA, The Technical Support Document for the 1992 Citizens Guide to Radon (May. 1992). See also,
Testimony of Margo T. Oge, Director of Office of Radiation and Indoor Air, U.S. EPA, before the
Subcommittee on Health and the Environment, Committee on Energy and Commerce, U.S. House of
Representatives (March 18,1993); U.S. EPA. Current ORP Estimates of Annual Radon-Induced. Lunjg Cancer
Deaths in the General Population. (Memorandum from Margo Oge, Director of the Office of Radiation
Programs) (Aug. 17,391®). People who smoke and are exposed to radon are believed to be at even greater risk.
Id.
6 G, Eiehholz, "Human Exposure" w Environmental Radon (C, Cothern & JJSmith, Jr., eds.) 160 (1987).
Radon may be present in well water that has passed through uranium-rich soil; human exposure to radon
can occur if the water is exposed to air — e.g-, during showers, use of washing machines or cooking — or if the
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Because the air pressure within buildings is lower Jthan the pressure in the sun-minding
ground, buildings draw in radon from the soil and rock.7
Some areas of the United States are considered to possess a greater potential for
high radon concentrations in soil. EPA and the U.S. Geological Survey recently developed
a "Map of Radon Zones," which assigns a Zone 1, 2, or 3 designation to each county, based
on predicted average indoor radon screening levels.8 However, generalizations about radon
potential in different geographic regions cannot be used to determine whether a particular
building in any part of the country contains high levels of radon. High indoor radon levels
have been found throughout the country, and only testing of an individual structure can rule
out the existence of a radon problem.9
Based on health studies and on the available techniques for reducing radon, EPA has
established an "action level" of 4 picoCuries per liter of air (pCi/L) for reducing radon,
although it notes that there is no level at which exposure to radon is harmless. While
the average radon level in homes in the U.S. is 1.25 pCi/L, an estimated six million homes
contain radon levels at or above EPA's action level.11
B. Current Public Policy Strategies for Reducing Radon Hazards
The scope of EPA's radon program is defined by the Indoor Radon Abatement Act
of 1988, as codified in the Toxic Substances Control Act (TSCA), which authorizes radon
water is ingested. Id. at 166. Building materials, such as concrete blocks or bricks, that contain radioactive
materials also may contribute to indoor radon levels. Id. at 172. Water and building materials, which are
generally considered to be relatively minor sources of indoor radon compared to indoor air, are not discussed
in this paper.
7 General Accounting Office, Air Pollution: Hazar^ds^ofjfadoor^ Radon Could Pose a National Health
Problem 11 (1986). The amount of radon entering a home depends on, among other things^ the amount of
radium in the soil surrounding the house, the permeability of the soil, the type of house construction and the
condition of the home's foundation. Id.
8 58 Fed. Reg. 19097, 99 (April 12, 1993). Areas with greatest potential for high radon levels are
designated as Zone L, while those with the least potential are designated as Zone 3.
9 Radon screening surveys by EPA in 42 states and 7 Indian nations, as well as surveys by several states,
have uncovered elevated radon levels in homes in every state, though the problem is more extensive in some
states. Testimony of Margo Oge, supra note 5.
10 Environmental Protection Agency, A Citizen's Guide to Radon 7 (May 1992). The federal Indoor
Radon Abatement Act provides a long term goal for radon levels; the law states that "air within buildings in the
United States should be as free of radon as the ambient air outside of buildings." 15 U.S. C. §2661.
EPA's risk assessment is based on data involving miners. The epidemiological studies are inconsistent,
however a recent Swedish study found that people exposed to radon levels between 3.8 and 10.8 pCi/L had a
30 percent higher lung cancer risk than those exposed to 1.4 pCi/L or lower. New England Journal of Medicine
(January 20,1994).
11
Testimony of Margo T. Oge, supra note 5.
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activities at the federal leveL12 One of the main elements of this program is public
education and risk communication. Radon education programs have sought generally to
achieve two ends — to provide basic information about radon, and to encourage radon
testing in. the home.13 These educational efforts have emphasized the potential hazards
posed by radon, and the relative convenience and affordability of radon testing.14
• In addition to utilizing public education and risk communication efforts, EPA has
worked to provide an "infrastructure11 for effective state and local radon reduction programs.
The agency has done extensive research relating to the health effects of radon exposure and
to appropriate techniques for radon testing and mitigation. It recently published model
standards for radon-resistant new construction, designed to prevent high radon levels in new
residential housing.15 In, addition, EPA has established voluntary proficiency programs for
radon professionals and radon devices - the Radon Measurement Proficiency and Radon
Contractor Proficiency programs — in order to protect consumers and to help build an
industry capable of meeting the demand for radon-related services.
EPA provides funding to the states to implement radon programs through the federal
State Indoor Radon Grants (SIRG) program,16 State activities in the area of radon in
residential buildings generally parallel those at the federal level, with most states focusing
on public education and promotion of radon- testing. Many states have gone farther by
adopting legislative and regulatory requirements. Approximately 17 states and the District
of Columbia have adopted legislation establishing certification or licensure programs for
radon professionals and radon devices.17 Almost as many states have laws that require
disclosure of some type of radon information in the context of a residential real estate
12 15 U.S.C. §§2661-2671. The statute describes five principal areas of activity: (1) development of model
construction standards and techniques; (2) update of EPA's "Citizen's Guide"; (3) provision of technical and grant
assistance to state radon programs; (4) study of radon in schools and in public buildings; and (5) funding of
regional radon training centers.
As noted above, EPA is also required under the McKinney Act to work with HUD to develop standards
for radon reduction in federally subsidized housing.
13 See, e.g., EPA's A Citizen's Guide to Radon, supra note 11. These twin purposes are also apparent in
media campaigns sponsored by EPA, and in the agency's work with Organizations such as the American Lung
Association and the American Public Health Association.
M There are two basic ways to test for radon. Short term testing involves the use of a measurement device
that remains in the building for 2-90 days; long term tests last for more than ninety days. EPA estimates that
radon testing costs between $20 and $350 depending on the type of test and whether a radon measurement
professional performs the testing.
15 59 Fed. Reg, 13402 (March 21,1994)
16 TSCA §306,15 U.S.C, §2666.
17 See, «£, Conn. Gen. Stat §20-42; Fla. Stat. §404,056(5); Ky. Rev. Stat. §211.856; W.Va. Code §16-34-1,
et seq.
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transaction,18 Two states have incorporated radon-refistant construction techniques into
building codes.19 :
The outreach and education efforts by EPA, state and local government agencies, and
private organizations have helped to increase significantly public awareness of radon since
the issue first gained widespread attention in the mid-1980's. Today, an estimated 73
percent of the population claims to be aware of radon, although studies indicate that radon
awareness varies considerably by income and race.20 Nevertheless, while a substantial
percentage of the population is generally aware of radon and its dangers by now, only about
10 percent have actually tested their homes, and just over two percent have undertaken
radon mitigation.21
Although future radon strategies will seek to improve the rates of testing and
mitigation generally, these strategies are particularly important in an area that heretofore
has not been a focus of public policy concerning radon: the problem of radon in rental
housing.22 Radon programs that seek to reduce the risk of residential radon exposure
should incorporate policies that target rental property owners and tenants. Strategies that
fail to address rental housing directly will miss a significant portion of homes in the United
States. There are indications that rental housing is increasing at a greater rate than owner-
occupied housing; of the total increase in households- during the 1980's, rental households
increased by 17 percent, as compared to 10 percent for owner-occupied households.23
One-third of all rental housing units are single family homes, while 40 percent are
found in buildings with five or more units, and 22 percent are in buildings of four stories or
18 Many of these laws were passed in ±992-1993 legislative sessions; see, e.g., 1993 MA Laws 640; 1993
Miss. Laws 407; 1993 Montana House Bill 585; Ohio Rev. Code Ann. §530230; 1993 SJD. Codified Laws §43-4-
44; 1993 Tex Gen. Laws 356; Va. Code Ann. §55-519 (1993).
19 Washington Administrative Code, Chap. 51-13; NJ-Admin. Code 5:23-10.
Conference of Radiation Control Program Directors. CRCPD Radon Risk Communication and Results.
Study (1994) [hereinafter, CRCPD Study], According to CRCPD's 1994 nationwide survey, while 80 percent of
Whites interviewed were aware of radon, the percentages were significantly less for Hispanics (47%),
Asian/Pacific Islanders (46%), African Americans (50%), and Native Americans (70%). CRCPD's 1993 survey
found that radon awareness was highest among people with household income above $50,000 (81%) and those
with Incomes between $25-50,000 (74%); awareness was 56 percent where income was between $12-25,000 and
only 49 percent where income was under $12,000.
21
Id.
22 To date, public education campaigns have targeted homeowners. One major initiative currently being
undertaken at federal, state and local levels, is the promotion of radon testing in the context of the residential
real estate transaction, generally the purchase and sale of single family homes. EPA has recently published its
Home Buyer's and Seller's Guide to Radon, which provides information about how to address radon when buying
or selling a home.
23 Housing in America, supra note 2, at 41. There have been few surveys of radon levels focusing on the
rental housing stock. In New York, a study of 250 rental units resulted in 66% testing above EPA's action level
of 4 pCi/L, while another study of 36 rental properties found 20% with elevated levels. "Radon Risks Higher
for Low Income Americans, Cornell Study Savs.* Indoor Air Review. 17 (Dec. 1993)
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higher.24 The fact that a considerable percentage of all rental housing units may be found
in larger buildings raises questions about appropriate testing and mitigation techniques.
With respect to single family homes, EPA and the Surgeon General recommend testing all
homes below the third floor, where radon is generally concentrated.25 It is less clear what
the appropriate testing protocol is for multistory buildings with elevators and interior air
shafts, which might affect the radon concentrations at upper stories. With respect to
mitigation, EPA has indicated that most mitigation techniques used in single family homes
may be applicable to multifamily residential buildings as well.26
Further efforts are needed to develop radon testing and mitigation protocols for
multifamily housing. One initiative currently underway is an interagency agreement between
EPA and the U.S. Department of Housing and Urban Development (HUD), signed in
September, 1992, under which EPA is to test a number of HUD-owned properties and
undertake mitigation in selected properties with radon levels above 4 pQ/L.27 According
to the agreement, one result of mitigating these buildings will be to demonstrate the
applicability of existing mitigation techniques in multifamily dwellings. Based on the results
of the testing and mitigation program, EPA is to prepare protocols and guidebooks for
HUD, and is to provide HUD with information on costs associated with testing and
mitigation of multifamily housing.28
24 Housing in America, supra note 2, at 2. Since many rental units are in multifamily buildings, and since
radon mitigation is performed on an entire structure rather than on an individual unit within the structure, the
extent to which radon mitigation may be required in rental housing is not necessarily reflected in the total
number of rental households.
25 AJCJtizetfs.GgidejpJRadxp.supra note 103 at 3.
26 According to EPA,
limited mitigation experience has shown that some of the same radon
reduction systems and techniques used in residential buildings can be scaled
up in size, number, or performance to effectively reduce radon in larger
buildings.
58 Fed. Reg. 19097,19103 (April 12,1993).
The applicability of mitigation techniques such as sub-slab depressurization may depend mainly on the
"footprint* of the building — ie., the amount of square feet in contact with the ground. Thus, high-rise buildings
and townhouse developments may present very different circumstances for mitigation. Telephone conversation
with UJS. Environmental Protection Agency official (July 13,1993).
27 Interagency Agreement (HUD) DU1QOI92QQ00053, (EPA) RW86935/44/01/0.
28 Id. at 6. As of this writing, the agencies are planning to develop testing protocols but not mitigation
protocols, due to funding limitations. However, it is unclear whether these testing protocols will address
questions relating to large multifamily buildings.
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C. The Need for a Unique Approach to Reducing Radon in Rental Housing
The physical differences between multifamily rental housing and owner-occupied
single family housing raise certain technical, and possibly financial, issues which need to be
taken into account in designing appropriate radon reduction strategies. This paper, however,
focuses on the legal and policy challenges that stem from other particular differences
between rental and owner-occupied housing ~ differences relating to the legal and financial
status of tenants and owners. Because of the differences in the legal and financial status of
tenants, radon programs must focus specifically on the rental context if they are to achieve
significant radon risk reduction in rental housing.
In the rental housing context, the individuals exposed to radon are not those with
legal and financial control over the premises. For this reason, risk communication strategies
targeted to homeowners may fail to reduce exposure to high radon levels in rental housing,
because rental property owners are not the parties facing potential health risks from living
in the property. Therefore, education efforts and testing programs must be geared to
tenants as well.29
Nevertheless, radon education alone may fail because tenants generally lack the legal
authority to make major repairs or alterations to the premises necessary for reducing high
radon levels. Thus, even assuming that a tenant is informed about radon, tests her rental
unit, and is prepared to arrange for the necessary radon mitigation services, she may be
unable to do so.
Education strategies aimed at tenants may also prove ineffective on their own to the
extent that tenants feel they do not have a sufficient stake in the rental property to
undertake radon mitigation. Tenants clearly lack the financial stake that owners have, since
any financial benefit from permanent improvements to the premises will ultimately accrue
to the owner. In addition, many tenants perceive a minimal possessory stake in the
premises; because the health risks posed by radon are long-term, tenants who do not expect
to remain in a particular rental unit for a long period of time may not perceive considerable
health benefits from radon reduction in that unit30
Another important difference between rental and owner-occupied housing is that
renters are more likely to lack the financial means to undertake mitigation. In 1989, median
household income was 84 percent higher for owners than renters — $33300 for owners
compared to $18,100 for renters,31 While 27 percent of owner-occupied units had a
household income under $20,000 per year, 55 percent of rental units were below that level,
29 Sixty-four percent of renters are aware of the problem of radon, compared to 77 percent of home
owners. CRCPD Study, supra note 20.
30 In its recent survey on housing trends, the Census Bureau found that "as usual, renters were much more
mobile than owners." Housing in America, supra note 2, at 48. In 1989, 36 percent of renters moved, as
compared to eight percent of owners. Id,
i
31 Mat 28.
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and 30 percent were below SKXOGO.32 As these figures suggest, many tenants simply cannot
afford the cost of radon mitigation, even if they had the authority to mitigate and the
interest in doing so. Over 6 million rental households - nearly 20 percent of renters - pay
more than half of their income for housing costs.33 The long term threat of radon
exposure competes with more immediate survival needs of many low income families, such
as food, clothing, medical care, transportation and utilities. Moreover, even if they were
aware of high radon levels in their home, most low and moderate income tenants probably
would not have the option of moving into alternative, radon-safe housing that they could
afford.34
Strategies designed to promote radon risk reduction in new or existing rental
properties must, therefore, take into account the characteristics of the rental housing market,
as they affect low and moderate income families. The shortage of affordable housing,
combined with the scarcity of funds to improve that housing or to build new affordable
housing, calls for an approach to radon risk reduction that incorporates mechanisms for
funding testing and mitigation, in addition to education. While policies that seek to ensure
mitigation of high radon levels in rental property will involve financial costs — both to
government and private parties - the potential cost of inaction is measured in lives lost to
cancer each year. The evidence to date of the health consequences associated with exposure
to high levels of radon presents a strong case for taking action.
II. RADON AND RENTAL HOUSING: THE LEGAL LANDSCAPE
Legal responsibility for radon hazards in rental housing is an area that is, as yet, ill-
defined. There have been few cases decided or laws enacted to clarify these responsibilities.
Basting laws and legal principles most relevant to radon in rental housing are not adequate
to address the problem.
This section first discusses the liability of landlords for tenant exposure to high radon
levels, and concludes that reliance on potential tort liability alone will not result in
significant radon risk reduction. It next describes a range of possible legal measures for
clarifying the duty of providers of rental housing to reduce unacceptable radon levels. With
respect to existing rental properties, the paper suggests that legislation require radon testing
and, if necessary, mitigation either (a) at the point of sale or transfer of the property or (b)
by the landlord, in the context of the landlord-tenant relationship. The section then suggests
that with respect to new residential rental property, legislation should mandate the use of
radon-resistant construction techniques to help prevent high radon levels in new properties.
32 Id. at 29.
33 Id.
^* The shortage of affordable housing has been widely publicized in recent years. See, e.g,, Center oa
Budget and Policy Priorities & The Housing Assistance Council, The Other Homing Crisis: Sheltering the Poor
jjiRnral Atneoea. (December, 1989); Center on Budget and Policy Priorities. A Place to Call Home: TheJMsis
in Honsing for jthe Poor (April, 1989),
8
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A. Liability for Damages Resulting from Hazardous Conditions
liability for tort damages creates an indirect means of promoting the maintenance
of safe conditions in rental property, insofar as the potential imposition of tort liability on
landlords35 creates an incentive to maintain premises. Potential liability for damages from
radon exposure does not significantly influence radon testing and mitigation in rental
properties. Other legal measures aimed directly at radon risk reduction are needed.
1. Background
Traditionally, landlords were immune from tort liability for injuries to tenants
resulting from defects in the premises. Hie law presumed that tenants had an opportunity
to inspect, and that they assumed the risk of the premises they rented.36 Some state courts
have continued to foEow this principle.37
With the establishment of judicial doctrines and laws requiring landlords to maintain
rental premises, courts have begun to move away from the doctrine of landlord tort
immunity. Tenants living with dangerous defects have sought not only rent abatement and
repairs, but also damages for injuries resulting from the defects. Prototypical cases involve
tenants injured after falling down a defective stairway, or tenants injured from a fire
resulting from faulty electrical wiring. Courts have increasingly applied a negligence
standard in such cases, under which the landlord may be liable for failing to exercise
reasonable care in maintaining the premises in safe condition.38
35 Tbis paper addresses liability claims against landlords only. In other contexts, notably lead paint and
asbestos, tenants have filed lawsuits against manufacturers, seeking damages for injuries resulting from exposure
to the manufactured substances present in their homes. Any similar claim in the radon context would likely be
against the builder of the home, for constructing the home in a manner that resulted in high concentrations of
radon in the home. Although this paper will not discuss a builder's liability for structural defects resulting in
injury to a tenant, some courts have dealt with this issue. See, e.g., Stephens v. Stearns. 678 P2d 41 (Idaho 1984)
(builder who failed to construct a handrail for stairway owed duty of care to tenant). Generally, though, cases
brought by tenants involving structural defects have been against landlords, based on the landlord's general duty
to maintain the premises free of defects.
36 Love, "Landlord's Liability for Defective Premises: Caveat Lessee, Negligence or Strict liability?" 19
Wise. L. Rev. 19, 48-9. As noted infra footnote 71, there were certain exceptions to this principle.
37 See, e.g~, Dapkunas v. Cade. 356 RE. 2d 575 (TIL 1975); Maxwell v. Davco Corp.. 776 S.W. 2d 528
(Tenn. 1989): Hebert v. Green County Housing Auth.. 558 So. 2d 926 (Ala. 1990).
38 See, &£., Pagejsdorf v- Safeco Ins. Co.. 284 N.W. 2d 55 (Wise, 1979); Shroades v. Rental Homes. Inc..
427 RE. 2d 774, (Ohio, 198r>: Mansar v. Eobanks. 401 So. 2d 1328 (Ha. 1981~>: Norwood v. Lazarus. 1634 S.W.
2d 584 (Mo. Jackson v. Wood. 726 PM 796 (Kan. 1986).
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State statutes that create a landlord's duty to repair unsafe conditions do not usually
provide expressly for a legal cause of action in tort or for personal injury damages.39
However, such laws have helped to shape the transformation in landlord tort liability.*3
Some courts have held that the violation of a warranty of habitabflity41 or of a statute
establishing a landlord's duty to maintain the premises amounts to negligence per se.42
Other courts have found that such violations are evidence of negligence.43
This standard of care is reflected in Section 17.6 of The Restatement (Second) of
Property, which provides for liability if: 1) the landlord has failed to exercise reasonable care
in maintaining the premises and 2) the defective condition leading to the injury is either a
breach of the warranty of habitability or a breach of a statutory duty to repair. According
to this formulation, a landlord is liable only if she or he knew, or should have known, of the
existence of the defect
Few courts have found that landlords are strictfy liable in tort for injuries resulting
from defective conditions in rental premises. California courts have ruled that landlords
who are engaged in the business of leasing dwellings are strictly liable for injuries resulting
from latent defects in the premises, when the defects existed at the time the premises were
35 Nebraska's statute states that "the obligations imposed by this section are not intended to change existing
tort law in the state." Neb. Rev, Stat §76-1419 (1990).
At least one state statute establishing the landlord's duty to repair unsafe conditions does, however,
provide for tort liability. Provided that a tenant notifies the landlord of defective conditions under the tenant's
control, Massachusetts law states that a tenant who is "injured as a result of the (landlord's) failure to correct
said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor
for damages." Mass. Gen. Laws, ch. 186, §19.
40 See 63 ALR 4th 883 "Landlord Negligence - Services" §2(a). See also qardenvillage Rlty. Corp. v.
.BBSS2,366 A2d 101 (Md. 1976) (landlord liable for damages resulting from violation of building code).
Professor Browder has stated: "the notice requirement [contained in duty to maintain statutes and the
warranty of habitability] has been assumed by some courts to invoke ordinary negligence as the governing theory
of liability." Browder, The Taming of a Duty - The Tort Liability of Landlords," 81 Mich. L. Rev. 99,131. This
may result from the fact that such laws typically establish a standard of reasonable conduct; that is, the landlord
is only in violation of the duty to maintain if he or she knows (or should have known) of the defect, and has had
an opportunity to repair.
In the 1970's, courts began establishing an "implied warranty of habitability," which found that landlords
were responsible for maintaining rental premises in habitable and safe condition. This is discussed further in
Section C, below.
42 See.Shroades, supra note 38; Fordj?. Ja-Sin. 420 AM 184 (De. 1980).
43 .BepnelM» Lifter. Inc. v. Varnado. 480 SoM1336 (Fla. 1985): Williams v. Fontes. 417 REJ2d 963 (Mass.
1981X- McCov v. Coral Hills Assocs.. 264 A^d 896 (D.C. 1970).
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leased to the tenant.44 Louisiana law creates strict liability for a tenant's injury caused by
defects in the premises, although the meaning of "defects" is defined somewhat narrowly.45
2. Radon and Landlords' Liability for Defects
No reported decisions have established directly the existence or absence of landlord
liability for radon exposure in rental housing.46 In cases involving exposure to other
environmental harms, courts have differed on the extent to which landlords are liable to
tenants.
In cases dealing with injury resulting from exposure to lead-based paint, for example,
the determination of liability seems generally to follow the state doctrine on landlord
liability for defects in the premises. One state court which follows the traditional tort rule
of non-liability of landlords, has found that the landlord is not liable for lead poisoning
unless the defect existed at the time the unit was rented, and the landlord knew of the
defect and concealed it from the tenant47 In states that apply negligence principles to
landlord liability, courts have found that the landlord must have knowledge of the presence
of lead-based paint in order to be liable, though they have differed as to when a landlord
is presumed to have such knowledge.48 Some courts have found landlords strictly liable
44 Muro v. Superior Court. 184 CaL App. 3d 1089 fCal. 1986): Becker V. IRM Corp.. 38 CaL 3d 454.698
P2d 116 (CaL 1985).
45 La. Stat. AniL, Civil Code Art. 2695. See Ivey v. Housing Auth. of City of Mansfield. 514 So.2d 661
(1987). Louisiana courts have held that a landlord may avoid the imposition of strict liability when the tenant
has an independent obligation to repair the defective conditions. Wilson.?. United..States. 434 F.Supp 72 (1977),
and where the tenant's negligence caused the defect Ambrosia v. Cherokee Ins. Co.. 332 So.2d 559 (1976).
46 Two cases have addressed liability for radon outside the rental context. Braffbrd v. Susquehanna Corp..
586 F.Supp 14 (D.Co. 1984), involved a family that moved into a house located on the site of a former uranium
milling facility. The family brought suit against the mill owner, claiming that the company's placement of mill
tailings in and around the foundation of their home resulted in high radon levels in the home. The court found
that plaintiffs could bring a dqim for damages for chromosomal changes resulting from the radon exposure, as
well as for the increased risk of future cancer.
In Wavne v. Tennessee Valley Authority. 730 F2d 392 (5th Cir. 1984), homeowners brought suit against
the producer of the phosphate slag used hi the concrete blocks of their home, as well as against the manufacturer
and seller of the blocks. The court decided that plaintiffs could not bring then- claim for damages resulting from
high radon levels in the building materials, since at the tune the blocks were sold, radon gas was not identified
as a potential health concern in phosphate products.
47 Dunson v. Friedlander Realty. 369 So.2d 792 (Ala. 1979).
48 See, e.g., Norwood v. Lazarus. 634 S.W.2d 584 (Mo. 1982) (landlord negligent where he knew there was
flaking lead-based paint in hallway, and that child played in that area); Acosta v. Irdank Realty Corp.. 238
N.Y.SJZd 713 (1963) (landlord negligent where he knew of existence of lead-based paint in apartment, and
ingestion of paint by child was foreseeable). Cf. Winston Properties v. Sanders. 565 N.E.2d 1280 (Ohio 1989)
11
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for lead poisoning; however, these cases are not as analogous to the problem of radon
because liability was based in large part on the existence of state laws prohibiting lead-based
paint49
One court has found that a tenant whose child suffered nerve damage from exposure
to formaldehyde in her apartment could not recover from the landlord where the landlord
did not know about the condition,50 The court found that the state statutory warranty of
habitability did not extend strict liability to landlords for unknown defects.
Therefore, knowledge of high radon levels is probably a prerequisite to landlord
liability. Currently, landlords are not required by law to test for radon. Even where a rental
unit has not been tested for radon, a tenant might claim that the landlord should have
known about the condition. This is essentially a claim that the landlord should have tested
for radon, since the only way to know about high radon levels in a particular building is
through testing. Because the health hazards of radon are now widely publicized and
landlords have some responsibility for the safety of the premises they lease, a court might
find that the landlord should have tested for radon. Although it may be difficult to succeed
with this argument, a court might be more likely to make such a finding if the rental
premises are in an area identified by EPA or the state as a high radon potential area.
In order to recover damages for exposure to high radon levels, tenants must
demonstrate not only that the landlord has knowledge of the problem, but also that the
exposure resulted in some harm. Since cancer is associated with long term radon exposure,
tenants who have been exposed to high radon levels may be seeking damages for their
enhanced risk of developing cancer. Although some courts have allowed recovery for
increased susceptibility to cancer,51 traditional tort law prohibits recovery for anticipated
(fact that landlord -was aware of peeling, cracked paint does not mean landlord knew of existence of lead-based
paint hazard).
49 See, &g^ .Hardy, yjgriffin. 569 AM 49 (Ct 3989) (landlord strictly liable for lead poisoning where state
and city laws made the existence of lead-based paint a violation of the state's general statutory duty to maintain);
Jfotaras. 507 N.E2d 748 (Mass. 1987) (landlord strictly liable for lead poisoning based on state law
prohibition).
50 Mever v. Parkin. 350 N.W.2d 435 (Minn. 1984).
51 See Cross & Murray, "Liability for Toxic Radon Gas in Residential Home Sales," 66 N.C JLRev. 687,
725-26 (1988). Even where such claims were allowed, plaintiffs would have to demonstrate that they have a
significant probability of developing cancer. Where courts have allowed recovery for enhanced risk, they have
generally required at least a 50% probability of developing cancer; typical risk from exposure to high indoor
radon levels may be only about one percent Id. at 126-27, 730.
In one case involving radon exposure, the plaintiffs were able to claim that they suffered present injury
in the form of subcellular changes, and joined to this a claim for risk of future cancer. Brafford y. Susquehanna
Corp.. 586 RSupp. 14 (D.Colo. 1984).
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injury.52 While there has been significant judicial and scholarly consideration of this issue,
the likelihood of recovering damages resulting from radon exposure remains highly
uncertain.
3. Strategies for addressing landlord liability for damages resulting from radon
exposure
Potential tort liability would provide a stronger incentive to mitigate high radon levels
if landlords were required by law to test for radon. Such a requirement would enable a
tenant to demonstrate actual or constructive knowledge on the part of the landlord. This
would still leave open the question of the landlord's duty of care in addressing the high
radon levels. That is, a court might find that a landlord is required only to notify tenants
of the problem, or courts might craft different formulations of the landlord's obligation to
mitigate high levels.
In. addition to defining a landlord's obligations with respect to ensuring acceptable
radon levels, a law could explicitly state that violation of its provisions results in liability.
Even without statutory language referring to landlord tort liability, violation of a radon
statute might be interpreted as evidence of negligence or as negligence per se where the
statute sets forth specific duties intended to protect a clearly defined class of persons ~ e.g.,
where the statute requires landlords to mitigate high radon levels in rental housing.
Even if a landlord's duty of care were clarified, tenants exposed to high radon levels
would still face significant obstacles to recovering personal injury damages. Proving injury
may be extremely difficult Moreover, tenants would face other barriers to bringing a tort
suit. First, tenants often lack information, both about radon and about their legal rights.
Second, lower income tenants may lack the financial resources to bring suit; the potential
difficulty of proving injury will make it less likely that such tenants can find an attorney
willing to take the case. Finally, tenants - particularly those with limited housing options -
- may be loath to bring a tort suit for fear of retaliation by the landlord.
Rather than waiting for the courts to determine, in the context of a tort suit, the
reasonable standard of care for landlords with respect to high radon levels, states could
clarify the standard of care through legislation defining the duties of the owner/landlord.
B. Radon Disclosure, Testing and Mitigation in the Sale or Transfer of Rental
Properties
The real estate transaction is widely recognized as a key trigger point for radon
testing and mitigation and provides an important opportunity for radon risk reduction in
rental properties. The approach generally taken with respect to owner-occupied homes -
52 See Prosser & Keeton on the Law of Torts §30 (W. Keeton, 1984).
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the disclosure of radon information to prospective purchasers — will not prove as effective
in the transfer of rental property. More aggressive measures are needed in order to achieve
radon testing, disclosure and mitigation in rental property transfers.
1. Background
, Although the real estate transfer has been a central focus of radon risk reduction
efforts to date, these efforts have not generally resulted in the imposition of requirements
for radon testing and mitigation. One exception is a New Hampshire regulation requiring
that the transferor of any building sold, leased or given to the state demonstrate that the
building's radon level is below 4 pQ/L53
Instead, most laws that promote radon reduction in the real estate transfer generally
do so by establishing requirements for disclosure of information on radon to prospective
purchasers. There are essentially two categories of radon disclosure requirements: "general"
disclosure and "specific* disclosure. General disclosure is essentially a vehicle for providing
brief educational information on radon to a particular segment of the public, in this case the
purchaser of residential property. Although general disclosure does not provide information
about the radon levels in a particular property, a number of states have promoted such
disclosure in the belief that an educated buyer may pursue radon testing (and if necessary,
mitigation) before purchasing the property, in order to avoid the potential risk of exposure.
A few states have passed laws requiring this form of disclosure.54
Specific disclosure refers to the provision of radon information relating to the
particular property being transferred. Within the category of specific disclosure, there are
two types of requirements that could be made applicable to sellers of residential property.
The first type would mandate the disclosure of the property's radon levels only where the
seller already had the information. The second type would require the seller affirmatively
to obtain information on the property's radon level and provide that information to the
purchaser.
A number of states have enacted laws requiring sellers of residential property,
including rental property, to disclose the existence of certain known conditions or defects
in the property. Mereasingly, states are including radon among a checklist of hazards which
must be disclosed if the seller is aware of their existence.55 New Jersey law contains a
separate statutory provision requiring that a seller disclose the results of radon testing to
prospective buyers, but only if the seller actually knows the radon levels in the home.56
53 New Hampshire Rules He-P 1804.02,1804.05.
54 See, e.g,, Ha. StaL CL 91-04 §404.056(8); R.I. Gen. Laws §45-243-23; 1993 Montana House Bill 585,
55 See supra note 18.
56 NJ. StaL §26:2D-73.
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Federal law currently does not require disclosure of radon information to prospective
purchasers of residential real estate. The recently 'enacted Residential Lead-Based Paint
Hazard Reduction Act of 1992 (Public Law 102-550) does require the provision of such
information to purchasers regarding another indoor hazard, lead-based paint Section 1018
of this law requires that before a purchaser is obligated under a contract, the seller must
provide the purchaser with general information about lead, inform the purchaser of any
known lead-based paint hazards, and allow the purchaser a 10-day period to conduct an
inspection for the presence of lead-based paint hazards. Federal legislation containing a
similar disclosure measure with respect to radon has been proposed.57
2. Strategies for Promoting Radon Testing, Disclosure and Mitigation in the Sale
of Rental Property
The real estate transaction provides an important opportunity for promoting radon
testing, disclosure and mitigation in rental property.
a. Testing and Disclosure
As noted above, a number of states already require the disclosure of general radon
information during the sale of residential real estate. State or local governments can go one
step further by establishing a specific radon disclosure scheme that involves testing and
disclosure of radon levels by owners58 in properties being sold or transferred. At the
federal level, Congress could make testing a requirement for obtaining a "federally related"
mortgage loan or for lenders' participation in the secondary market through federally
established secondary mortgage institutions.59
Requiring disclosure of rental property's actual radon level to prospective purchasers
is likely to be the most effective approach to disclosure. Because prospective purchasers of
rental properties will be concerned with the condition of the properly, particularly to the
extent that the condition may lead to liability of that purchaser, mitigation of high levels is
57 S. 657, introduced by Senator Lautenberg in March, 1993; H.R. 2448, introduced .fay Representative
Markey in June, 1993.
This section looks at disclosure requirements placed, on sellers or transferors of residential rental
property. Other parties, such as real estate agents, may be involved in the sale transaction, and therefore might
be appropriately made subject to disclosure requirements in certain circumstances.
59 See Paul A. Locke, "Promoting Radon Testing, Disclosure and RemediationiProtecting Public Health
Through the Home Mortgage Market," 20 Environmental Law Reporter 10475 (Nov. 1990), in which the author
recommends that general radon disclosure be made a requirement for obtaining a "federally related* home
mortgage, and that radon testing and mitigation be made requirements for mortgage lenders to, participate in
the secondary mortgage market. "Federally related mortgage loan" is defined under the Real Estate Settlement
Procedures Act of 1974 as any loan that is secured by a first lien on residential real property and is (1) made
by a lender -who is regulated or insured by the federal government; (2) assisted in any way by the federal
government; (3) intended to be sold to a federal government-created secondary mortgage institution; or (4) made
by a creditor who makes or invests in more than $1,000,000 in real estate loans per year. Id. at 10480, citing 12
U.S.C. §2602(1).
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more likely to occur if actual levels are disclosed. Where testing is made part of the routine
property inspection, purchasers might also have greater difficulty obtaining a mortgage loan
if the problem were not remedied. Requiring testing prior to the sale of rental property
presents an opportunity for negotiating the costs of mitigation and testing between buyer
and seller.
Specific disclosure can therefore be a valuable tool for promoting mitigation of high
radon levels. If accompanied by a requirement that test results be reported to state and
local officials, this type of disclosure requirement could also help provide more
comprehensive data for federal, state and local agencies on the extent of radon problems
in rental housing. This could greatly assist agencies in their efforts to develop effective
programs for addressing radon.60
This approach to disclosure is superior to requiring disclosure of radon levels only
where those levels are already known, which may actually discourage radon testing because
the seller is not required to disclose any information he does not already have. Moreover,
the seller may already be required to disclose high radon levels under common law if he is
aware of them.61
Specific disclosure is also preferable to the disclosure of only general information on
radon, since such warnings would not target risk communication to the persons who will
actually face potential health risks. Purchasers of rental property who receive such general
warnings may be motivated to test for and mitigate high radon levels if they perceive
potential liability for their failure to do so. However, it is highly uncertain whether a court
would find a rental property owner liable for failing to test for radon based solely on Ms
earlier receipt of a general radon warning during the real estate transaction.
b. Mitigation
To more effectively ensure acceptable radon levels in rental properties, legislatures
can go a step beyond mandatory testing and disclosure by requiring mitigation where testing
reveals high radon levels. Although mandatory testing alone may trigger remediation in
many cases, there are strong policy justifications for making mitigation of high levels
mandatory. Foremost among these is the fact that the health and well being of those who
are not party to the real estate transaction ~ i.e., tenants residing in the building — are at
60 Several states have adopted reporting requirements in connection with laws requiring the certification
of radon professionals. Many of these laws safeguard the confidentiality of this information. While such
confidentiality provisions are important to encourage reporting, two state reporting taws may actually have the
effect of discouraging testing in rental property. New Jersey and Iowa statutes prohibit radon testers from
disclosing (except to the state) information about the owner or address of any property tested, unless the building
owner waives this right of confidentiality. NJ.S.A. 26:2D-73; Code of Iowa §1366.2. These laws could be
interpreted to prevent a tenant from obtaining the results of a radon test which he initiated.
61 See, &#, Schnellv,m,QpsMspn, 638 PM 850 (Colo. App. 1981) (vendor of real estate has a duty to
disclose to purchaser a known latent defect); JFoust v. Vallevbrook Realty Co.. 446 RE. 2d 1122 (Ohio App.
1981) (vendor has duty to disclose any material facts which are not visible).
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stake. Such an approach may therefore be more appropriate for the rental real estate
transaction than for owner-occupied properties, t ,
To implement a radon mitigation requirement, state or local legislatures could enact
legislation providing that a seller or transferor of residential properly demonstrate that the
property does not exceed the radon level established by law. The legislation would need
to specify the type of proof necessary to demonstrate compliance. As with testing,
mitigation could be made a federal requirement for obtaining a federally related loan or for
lenders' participation in the secondary mortgage market through federally-established
secondary mortgage institutions.62
This approach takes advantage of the real estate transaction to ensure that residents
of residential housing will not be exposed to high radon levels. The cost of mitigation under
this approach would be the responsibility of the seller, although the seller might be able to
recover part or all of those costs in the sale transaction. One drawback to this approach is
that it does not address radon problems in rental properties that are not for sale or being
transferred.63 Another problem with this approach is its potential effect on the availability
of affordable rental housing. The additional costs of radon mitigation could affect the
economic viability of low and moderate income rental units. As noted below in Section ffl,
financial subsidies targeted to affordable rental housing is an important component of public
policy aimed at requiring mitigation during the transfer of such properties.
C. Radon Disclosure, Testing and Mitigation in the Landlord-Tenant Relationship
Landlord-tenant law provides another arena for implementing a duty to ensure
acceptable radon levels in rental housing. The following discussion outlines existing
landlord-tenant doctrines that address tenant safety and health, and suggests that these be
expanded to include protection from exposure to high radon levels.
1. Disclosure of Radon Information to Tenants
a. Background
Traditionally, a landlord was not liable for damages resulting from defective
conditions in rental premises.64 One exception to this rule was the failure of a landlord
to disclose a latent defect to the tenant, where the landlord knew of the defect65 This is
62 See supm note 60.
63 See supra note 60, at 10482,
64 See Restatement (Second) of Torts, §356.
65
This doctrine is incorporated into section 358 of the Restatement (Second) of Torts:
A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural
or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject
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still the law in a number of states,66 though in recent years some courts have held that a
landlord's lack of knowledge of a defective condition is not necessarily a defense to liability
for damages resulting from the defect
In either case, a landlord who knew, or should have known, of the existence of a
hazard is potentially liable for injury resulting from the landlord's failure to disclose the
hazard to a tenant Where a landlord has tested for radon, the legal issues will be fairly
straightforward. In most circumstances involving failure to disclose a radon hazard,
however, the central question wffl likely be whether a landlord "has reason to know" ~ i.e.,
should have found out through testing — the radon levels in the housing he offered for
rental.
Some states have enacted consumer protection laws that make the failure to disclose
a material fact when leasing an apartment an unfair and deceptive trade practice.67 Such
laws might be applicable to a landlord who fails to disclose the existence of a known hazard
when renting an apartment Again, the question of when a landlord should be expected to
know the radon levels in her or his property may be an issue in determining a violation of
such a statute.
One state has enacted a law that addresses specifically radon disclosure to tenants.
Florida law requires that the following notice be provided to tenants at the time of, or prior
to, the execution of a rental agreement for any building:
RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed
to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained
from your county public health unit.68
Federal law currently does not require disclosure of radon information to tenants.
Proposed federal legislation contains a radon disclosure measure similar to the lead
disclosure requirements of the Residential Lead-Based Paint Hazard Reduction Act of 1992,
to liability... if (a) the lessee does not know or have reason to know of the condition or the risk
involved, and (b) the lessor knows or has reason to know of the condition, and realizes or
should realize the risk involved, and has reason to expect that the lessee will not discover the
condition or realize the risk.
66 See, eg, Krance v. Faek 338 N.W.2d 55 (Neb. 1983): Lemlev v. Penner. 630 PM 1086 (Kan. 1981);
Richards v. PaliL 818 P.2d 418 (Or. 1980).
67 See, &£., Md. Comm. Law Code Ann. §13-301, et seq.
68 Ha. Stat. Ch. 91-04 §404.056(8) (1988).
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described above.69 Section 1018 of that law requires that before a lease is entered into,
the landlord is to provide the tenant with general information about lead, and to inform
tenants of any known lead-based paint hazards.
b. Strategies
The provision of general radon warnings alone may not be effective in triggering
widespread testing and mitigation, since this would not provide specific information about
the tenant's own home. Moreover, tenants may lack the legal and financial means to take
action. Therefore, in order to most effectively promote mitigation of high radon levels in
the leasing of rental housing, specific disclosure requirements should be carefully crafted and
combined with clear legal requirements for mitigating high radon levels.
Specific disclosure in the leasing transaction may promote mitigation of high radon
levels, particularly where the disclosure requirement clarifies a separate, affirmative
obligation on the part of the landlord to determine the radon levels in the premises. The
effectiveness of this strategy depends on a range of related factors, including the tenant's
level of awareness of the risks posed by radon exposure and the tenant's opportunities for
ensuring radon reduction or obtaining alternate housing. One potential disadvantage of a
specific disclosure law is that it could lead to claims by landlords that a tenant has assumed
the risk of the radon hazard in a rental unit. On the other hand, specific disclosure
requirements could be very useful in educating tenants and ensuring compliance with radon
mitigation requirements.
2. Radon Testing and Mitigation: The Duty to Maintain Rental Premises
a. Overview of landlord duty to maintain premises
Strategies for achieving radon testing and mitigation in the context of the landlord-
tenant relationship can best be evaluated within the legal framework governing the
landlord's duty to maintain rental premises free from unsafe or hazardous conditions. These
legal obligations are determined at the state and local levels, by both common and statutory
law. Although there are significant differences among states, some general underlying
principles apply.
Until fairly recently, landlord-tenant relations were largely governed by the doctrine
of caveat emptor.70 Traditionally, the rental transaction was perceived as essentially a
conveyance of land, and the lessee took the property as is.71 A tenant faced with unsafe
69 See infra note 57.
70
See generally, Browder, supra note 41, at 101 (with citations).
71 Id. See also, Love, supra note 36, at 28-31; Restatement (Second) of Torts §356. Certain exceptions
to this rule were established. For example, the landlord was responsible for defects where the premises were
under construction at the time of leasing, where the landlord failed to disclose defects about which she or he had
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or unhealthy living conditions had two main options for redress: abandon the premises and
terminate the lease under the theory of constructive eviction, or remain in the unit and bring
an action against the landlord for damages.72 Because the tenant's covenant to pay rent
was deemed independent of any covenant on the part of the landlord to repair the premises,
a daim based on defective premises did not entitle the tenant to withhold rental
payments.73
In the 1960's, continuing urbanization and concentration of housing prompted courts
to address a landlord's responsibility for the condition of rental property.74 In 1970, the
case ^aMmj^^F«rst..Hational..Realiy..OQn^a^^ marked the end of the doctrine of caveat
emptor, and established a landlord's duty to repair leased premises. The Jayins court noted
that the provision of housing had come to be seen less as a conveyance of land and more
as the provision of services, and that modern rental leases involved
a well-known package of goods and services - a package which includes not merely
walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing
facilities, secure windows and doors, proper sanitation and proper maintenance.76
The court thus found an implied warranty of habitability in rental housing, analogous to
implied warranties in the sale of goods.
Since then, most states have either recognized the implied warranty of habitabilily
in rental housing, or have adopted statutes providing for a landlord's duty to repair
premises.77 In addition, state and local governments have developed housing codes that
set forth the minimum standards for residential rental units. These changes in the law
regarding the condition of rental housing units have brought about corresponding new
remedies, both public and private, for addressing substandard conditions.
actual or constructive knowledge, or where defects occur in premises that are used in common by all tenants and
that remain in the control of the landlord. See Love at 28-31, 66 notes 238, 241; Restatement (Second) of Torts
S357-362.
72 'Mat 33-37.
73
Id. at 33-4, dting Restatement of Contracts §290 (1932).
74 See, e.g^ .Pines y. fijsrssion, 14 Was. 2d 590; 111 N.W. 2d 409 (1961). See generalfy, Love, supra note 36,
at 91-98.
75
428 R2d 1071 (IXC. Or.).
76
77 Alabama, Arkansas, Colorado, Mississippi, and South Carolina neither recognize an implied warranty
of habitability nor have statutory provisions requiring landlords generally to maintain rental premises.
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Implied Warranty of Habitability
Many states have a judicially created implied warranty of habitabflity in rental
housing,78 and some have enacted statutes codifying the warranty.79 Although the precise
scope may vary, the warranty of habitability generally provides that in leasing a residential
unit, a landlord impliedly warrants that there are no latent defects in the unit, and that the
landlord will maintain the unit in a habitable condition for the term of the lease. Most
warranties include, but are not limited to, compliance with applicable housing codes,
although not all violations of a housing code constitute violations of the warranty. Since
habitability is defined broadly to protect tenants' safety, health or well being, it is generally
left to the courts to determine whether a particular defective condition is covered by the
warranty.
The remedies provided a tenant for violations of the warranty of habitability go
further than traditional common law remedies. The full range of contract remedies is often
available, including damages, rescission, and specific performance.81 The most common
remedy afforded tenants for violations of the warranty of habitability is rent abatement,
whereby the tenant's rent is reduced to reflect the value of the premises during the period
of noncompliance with the warranty of habitability. The precise measure of damages
varies, although courts typically use the difference between the value of the premises as
warranted and the value in their defective condition.82 Some courts have awarded
consequential and incidental damages to tenants resulting from the defective conditions.83
Tenants can usually raise a rent abatement claim affirmatively by filing suit, and
place their rent in escrow while their claim is being adjudicated.84 In addition, tenants are
often permitted to withhold their rental payments, and raise the warranty of habitability and
18 See, e,g.. Green v. Superior Court. 517 P. 2d 1168 (Cal. 1974): Boston Housing Authority v. Hemingway.
293 RE. 2d 831 (Mass. 1973). See generally, Browder, supra note 41, at 11 n.50.
79 See, e.g., N.Y. Real Property Law, §235-b; Minn. Statutes §504.18.
80 See, e.g~ Boston Housing Authority v. Hemingway. 293 NJS.2d 831 (Mass. 1973).
81 See Mahlman v. Yelverton. 439 NYS 2d 568, 571 (N.Y. 1980).
82 See, e.g., Love v. Amsler. 441 N.W. 2d 555 (Minn. 1989); Miller v. C.W. Mvers Trading Post. Inc.. 355
S.E. 2d 189 (N.C. 1987). See generaify 1ALR 4th 1182, Measure of Damages for Landlord's Breach of Implied
Warranty of Habitability.
83 See, e.g., Roeder v. Nolan. 321 N.W. 2d 1 (Iowa. 1982) (incidental and consequential damages may be
awarded): Teller v. McCoy. 253 SJE. 2d 114 (W. Va. 1978) (damages for annoyance and inconvenience may be
awarded): Re: Clark. 96 BR 569 (1C ElXPa. 1989) (recovery allowed for expenses necessitated by defective
conditions).
84 See, e.g.. Miller v. C.W. Myers Trading Post. Inc.. 355 S.E.2d 189 (N.CApp. 1987).
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rent abatement claim defensively in a landlord's action for nonpayment of rent85 An
important limitation on seeking relief, however, is that the tenant must generally provide
notice of the defective conditions to the landlord and allow a reasonable amount of time
for the landlord to make repairs.86
Statutory Duty to Repair
In addition to or instead of recognizing a warranty of habitabffity, many states have
adopted statutory provisions requiring landlords to maintain residential units.87 Such
statutes usually establish a general duty, corresponding to the duty established by a warranty
of habitabHity, to maintain premises in a fit condition.88 Some statutes include examples
of particular conditions that constitute violations of the duty.89
The remedies provided under such laws generally parallel those available for
violations of the warranty of habitability. Statutes frequently provide affirmative and
defensive rent escrow actions, and authorize courts to abate rent and/or order the landlord
to make repairs.90 Some statutes also provide for recovery of damages.91
85 See, e.g.. Petting v. Edelbrock. 671 S.W. 2d 265 (Mo. 1984): Romanow v. Heller. 121 Misc. 2d 886, 469
NYS 2d 876, aff d 134 Misc. 2d 606,513 NYS 2d 247 (N.Y. 1983).
86 See, e.£., Drew v. Fallen. 172 NJ. Super. 570, 412 A, 2d 1331 (NJ. 1980).
Another remedy sometimes available to tenants is the self help remedy of "repair-and-deduct", whereby
tenants make repairs themselves, and then deduct the reasonable cost of repairs from their rent payment.
87 See, eg., Fla. Stat Ann. §83.51; Md. Real Prop. Art., §8-211; Ohio Rev. Code Ann. §5321.04.
88 Section 2.104(a) of the Uniform Residential Landlord and Tenant Act states that "a landlord
shall™.comply with the requirements of applicable building and housing codes materially affecting health and
safety....[and] make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable
condition." Although this standard follows the warranty of habitabiMty doctrine, it is described as a "duty", rather
than as a warranty or covenant.
Section 5.5 of the Restatement (Second) of Property has adopted the position that the landlord is
responsible for maintaining the premises in a safe and sanitary condition, hi compliance with the requirements
of health, safety and housing codes.
89 For example, coverage under Maryland's statute includes, but is not limited to lack of heat, light,
electricity, or running water; lack of adequate sewage disposal facilities; infestation of rodents; and the existence
of lead paint on surfaces within the home. Md. Real Prop. Art. §8-211(e).
*. - .
Ohio's duty to maintain-statute requires the landlord to keep the premises in "fit and habitable"
condition, and specifically to maintain "all electrical, plumbing, sanitary, heating, ventilating, and air conditioning
fixtures and appliances, and elevators...." Ohio Rev, Stat. Title 57, §5321.04(4).
90 See, e.g., Md. Real Prop. Art. ,§8-211; Ohio Rev. Stat, Title 57, §5321.07.
91 NM. Stat. Ann. §47-8-27(B) (damages and injunctive relief); Ky. Rev. Stat. §383.625; Neb. Stat. §76-
1425.
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Housing Codes
For years, housing maintenance codes have been a principal means of prescribing
mii-iimnm standards for residential rental units.92 Typically adopted at the county or city
level, these codes address the maintenance of basic equipment and facilities; light,
ventilation and heating systems; safety and sanitary condition of the dwelling; and minimum
space requirements. Housing codes generally hold the landlord responsible for compliance
with the code, and prohibit the rental of dwellings that are out of compliance.
Housing code enforcement is usually carried out by public officials authorized to
inspect premises and issue notices of violation. Many provide fines and criminal penalties,
and authorize court-issued injunctions. Some housing codes also authorize the code
enforcement agency to proceed to make repairs where a landlord will not comply with an
order, and then to recover the costs in an enforcement action.93 Some states provide
tenants with legal remedies for code violations, either as part of the housing code or under
a separate statute.94
b. Radon and the Landlord's Duty to MatJitam Premises
There are currently no federal or state laws that address directly the responsibility
of landlords to reduce high radon levels in their properties.95 Thus, absent legislative
action, the main avenue for finding a legal duty on the part of landlords to fix radon
problems is under an existing warranty of habitability or an existing statute requiring
landlords to repair unsafe and dangerous conditions generally.96
92 The Housing Act of 1554, 42 U.S.C. §1451(c), required that municipalities seeking federal grants or
loans for housing and urban development projects have housing codes in place and have programs for enforcing
the code provisions. In the ten years after this law was passed, over 650 cities adopted housing codes.
"Enforcement of Housing Codes," 78 Harvard Law Review 801, 803 (1965).
93 See, &gn Mass. State Sanitary Code, 105 CM.R. §410.960.
94 See, e.gr, Mass. Gen. Laws c. Ill, §§127QFJL (state sanitary code, providing rent escrow and repair
and deduct remedies); Ohio Rev. Stat. Title 53, §5321.07 (statute providing rent escrow and injunctive relief
generally).
As noted above, there is at least one municipal ordinance that does require owners of rental housing
to test for radon, and to mitigate if the test reveals levels over 4 pCi/L (the EPA action level). Town of
Parsippany-Troy Hills Municipal Ordinance 8931. As also mentioned earlier, New Hampshire regulations
require property sold or transferred to the state to meet a 4 pCi/L radon standard. N.H. Rules He-P 1804.02,
1804.05. . .
Legislation has been proposed in the District of Columbia requiring owners of rental property to test
for and mitigate high radon levels. See, e.g,, D.C. Bill 9-69. Such a provision, though, has not been enacted.
96 The exception to the traditional rule of caveat emptor, for defects in premises that are used in common
by all tenants, might also apply to the radon context. Since radon enters through the common portions of a
building, and can be mitigated by making repairs to those common areas, tenants could argue that a landlord
has a duty under the tradition common law rule (i.e., where no warranty of habitability applies) to remedy radon
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The argument that a warranty of habitability covers the existence of high radon levels
is fairly straightforward. The implied warranty of habitability requires that rental housing
units be maintained in a condition that does not threaten the health or safety of tenants.
Radon has been identified as a Qass A carcinogen by the federal government, and high
indoor radon levels have been associated with lung cancer. A rental unit with high radon
levels therefore poses a serious health threat to its occupants. There are no reported cases
addressing radon in the context of the warranty of habitability.
Other indoor environmental hazards provide an analogy to radon. The problem of
high levels of lead in paint and indoor air is perhaps the most apt. The inhalation of lead
dust is demonstrated to cause significant health problems, notably neurological damage in
young children. A number of courts have ruled that where a landlord is aware of the
existence of lead paint, the landlord has a duty under the warranty of habitabulty to repair
the condition.5*7 In addition to these cases, one court has suggested that the presence of
formaldehyde in an apartment could be a violation of a statutory implied warranty of
habitability.98 Along these lines, after notifying the landlord of the problem, a tenant who
has been exposed to high radon levels could bring a warranty of habitability claim alleging
that the landlord's duty to keep the premises free of defects mat threaten health and safety
requires that the landlord take action to reduce elevated radon levels."
Tenants face certain difficulties in pursuing the claim that high radon levels violate
an existing warranty of habitability or broad statutory duty to repair. The extent of the
threat posed by exposure to high indoor radon levels has only recently received widespread
attention. This contrasts with other environmental hazards such as lead-based paint, which
is prohibited in residential rental dwellings in a number of states. Because there has been
some question about the precise nature of the threat, and the radon level at which action
should be taken, courts may be reluctant to find that radon mitigation falls within the
landlord^ existing statutory or common law duty. Moreover, because radon is a naturally
occurring substance, there may be a perception that it is inappropriate to hold a landlord
responsible.100
problems.
97 See, e,g^ Acosta v. Ii:dank.IlealtyJ5>gp:-. 238 NYS 2d 713 (N.Y. 1963) (landlord also liable in tort for
resulting injury to child, since ingestion of lead paint was foreseeable); Norwood v. Lazarus. 634 S.W.2d 584
(Mo. 1982) (landlord also liable in tort, as resulting injury to child was foreseeable). See also, Winston
Properties v.Sanders. 565 NJ5. 2d 1280 (Ohio 1989).
Meyer v.JParMn. 350 N.W. 2d 435 (Minn. 1984) (rejecting claim for personal injury damages).
A tenant might also be able to address high radon levels in water through a warranty of habitability or
duty to repair daim. In Elderkin v. Gaster. 288 AM 771 (1972), the Supreme Court of Pennsylvania held that
an implied warranty of habitability could be imposed against a builder for failing to ensure a potable water
supply.
Federal environmental laws have assigned financial responsibility for cleanup to parties who did not
necessarily cause the problem. See, e.g., Comprehensive Environmental Response, Compensation and liability
Act, 42 TJ.S.C. §9601 et seq. (creating Superfund liability scheme holding parties joint and severally and strictly
liable); Surface Mining Control and Reclamation Act, 30 U.S.C. §§1231-1243 (establishing a fee on coal
producers to reclaim and restore land and water resources adversely affected by prior coal mining operations).
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Despite these difficulties, the considerable evidence of the health hazards associated
with radon exposure provides tenants with solid grounds for asking courts to require
landlords to mitigate high radon levels pursuant to an existing duty to repair. Rather than
relying on the development of judicial doctrine in this area, however, state legislatures can
take steps to ensure that a landlord's responsibility with respect to high radon levels is
clearly established.
c. Legislative strategies for implementing a
duty to mitigate high radon levels
Legislation could establish a duty to reduce high radon levels by 1) creating a
statutory duty to reduce unacceptable radon levels; 2) amending an existing statute requiring
landlords to repair unsafe conditions; or 3) amending an existing housing code.
The enactment of a new law dealing with radon alone would require landlords to test
for radon and to mitigate unacceptably high levels. This type of legislation can be tailored
to address unique features of the radon problem and may be more politically feasible than
amending an existing, well-established state or local law. The new legislation could, for
example, target radon testing and mitigation to only those areas that are known to be high
radon potential areas, according to EPA's radon potential map. This has the advantage of
focusing implementation and enforcement of the law on areas that are believed to have
higher radon levels on average; it does not, however, ensure that all buildings with high
radon levels will be mitigated. A preferable approach to targeting would be to establish a
timetable for compliance with radon testing and mitigation requirements, starting with
buildings located in high radon potential areas.
If a license or certificate of occupancy is required to operate the rental building, a
radon law could require proof of radon levels below the established "action" level as a
prerequisite to obtaining a license. In addition, a radon law requiring testing, and if
necessary mitigation, should require that test results be provided to state and local radon
agencies as well as to tenants. This will not only aid in enforcement of the law, but will also
help to contribute to a better understanding of the nature of the radon problem in the state.
Rather than creating a new law, existing laws could be amended to add radon-related
requirements. For example, a state statute obligating a landlord to repair unsafe and
unhealthy conditions generally could be amended to include high radon levels as among the
explicit conditions falling with the landlord's duty. Statutes of this type sometimes provide
non-exclusive examples of conditions falling within their scope.101 To such a list could be
Moreover, although radon is a naturally-occurring substance, it is possible to view high indoor radon
levels as having been "introduced" into the home through the construction of the building. Because a house can
be constructed in a way that helps keep radon from entering, the entry of radon through cracks in the foundation
could be seen as a structural defect. In those (more limited) cases where high radon levels result from building
materials or the water supply, this characterization is even more appropriate.
101 For example, Maryland's statutory duty to repair lists a number of conditions, including the existence
of interior lead-based paint, that fall within the scope of the duty. Md. Real Prop. Art. §8-211(e)(4).
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added high radon levels, as defined in the law. Any existing remedies, such as rent escrow
and rent abatement, would be applicable.
Similarly, applicable rental housing codes could be amended to include acceptable
radon levels. Although no existing housing codes explicitly mention radon, such codes
potentially are appropriate vehicles for establishing radon requirements. Many codes, for
example, prohibit public nuisances, which may be broadly defined to include "unsafe,
dangerous or unheakhfuT conditions.102 A number of codes also prohibit the presence
of other environmental hazards such as lead in paint,103 and many regulate such "naturally
occurring" elements as wind and rain, through requirements for weathertighmess.104
The inclusion of radon would trigger the remedies already provided in the housing
code, which typically include inspection and fines, and occasionally include public agency
authority to place a lien on the property and undertake directly the repairs. Housing codes
might also trigger private remedies in some states, or can become the basis for a tenant
action based on the warranty of habitability or on a statute creating a landlord duty to
repair. These statutory and judicial mechanisms generally cover, though are not limited to,
violations of all applicable housing codes. Since high radon levels may seriously affect
residents* health, violation of housing code provisions addressing radon levels would likely
fall within any warranty of habitabflity.
Because requirements for radon testing and mitigation may affect the availability of
affordable housing, the use of financial subsidies targeted to housing for low and moderate
income families should be considered in tandem with the development of legal
requirements.
D. Building Codes Applicable to Rental Housing Construction
Radon-resistant new construction techniques can help prevent the problem of high
radon levels in new rental housing. According to EPA, these techniques are more cost
effective than mitigating high radon levels following construction.105 Furthermore, radon-
102 Montgomery County, Maryland, Housing and Building Maintenance Standards, §§26-1, 26-10(1); see
also Chapter 150; Louisville Code of Ordinances, The Existing Structures Code, §§ES-201.0, ES-106.1.1 ("pubHc
nuisance* includes "any premises designated as unsafe for human habitation or use").
103 See, e.g.t Chapter 150, Louisville Code of Ordinances, The E5dsting Structures Code, §§ES-3033.1.
101 See, e.&, Denver Housing Code §27-21.
105 gp^»s estimates in this respect generaEy apply only to one and two family homes and to other
residential buildings of three stories or less. The agency has estimated that it will cost builders between $350-500
"per house" to install the type of "passive system" recommended by the agency's proposed model standards; the
cost of activating such a system with a fan would be approximately $250 for installation and $40-75 annually to
operate. By contrast, the cost of mitigating high radon levels in existing single family homes ranges from $800
to $2500.58 Fed Reg. 19097,19100 (April 12,1993).
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resistant new construction can enhance energy efficiency, and result in savings on the cost
of heating and cooling a building.106
1. Background
Most jurisdictions in the U.S. have adopted some form of building code that applies
to residential construction. Some have state-wide codes, while others have codes adopted
at the local level, generally by cities or counties. Four major model code organisations
publish model codes that can be adopted or modified by state and local jurisdictions.107
Codes provide minimum standards for protecting health and safety, and may include
requirements relating to fire prevention, plumbing, mechanical systems and general building
construction.
A few jurisdictions have incorporated radon-resistant construction requirements into
their building codes. Washington, for example, has adopted a state Ventilation and Indoor
Air Quality Code that requires radon-resistant construction techniques in new residential
construction.108 Montgomery County, Maryland has adopted radon-resistant construction
techniques in its building code, although the code is applicable only to one and two family
residential construction.109
In addition to these state and local efforts, EPA has published radon-resistant
construction standards to guide state and local jurisdictions in incorporating radon-resistant
new construction into building codes. EPA's Model Standards and Techniques for Control
of Radon in New Buildings contains specific construction techniques for use in all new one
106 £PA estimates that energy savings associated with implementation of its model construction techniques
(resulting mainly from reduction in stack effect), may average $65 per house annually. EPA, "Model
Construction Standards: Building A Radon-Resistant Future" (1993) (unpublished material). It is not clear if
the savings for multifamily housing would be comparable.
107 These are the Council of American Building- Officials (CABO), the Building Officials and Code
Administrators International (BOCA), the International Conference of Building Officials (ICBO) and the
Southern Building Code Congress International (SBCCI). Other organizations, such as the American Society
for Testing and Materials, develop "standards" for design or performance of materials or equipment These
standards often become accepted practice in the field, and may or may not be explicitly incorporated into a code.
108 WA.C. Chap. 51-13.
109 The county adopted and amended the 1989 edition of the CABO One and Two Family Dwelling Code,
requiring radon mitigation in newly constructed detached and semidetached single family dwellings and
townhouses. Executive Regulation 17-90 (1990).
New Jersey has also adopted standards and procedures for incorporating radon-resistant new
construction techniques into the construction of certain residential buildings. N J. Uniform Construction Code
§5:23-10.1-10.4.
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and two family residential construction in geographic areas of high radon potential.110 The
American Society for Testing and Materials has also developed a Standard Guide containing
radon-resistant construction techniques.111 According to the EPA, as of 1993,
approximately 200,000 homes had been constructed using radon-resistant techniques.112
2. Strategies for Promoting Radon-Resistant Construction in New Residential
Rental Buildings
Considerable efforts are already underway to incorporate radon-resistant construction
techniques into building codes. These efforts, however, have focused on one and two family
dwellings of three stories or less. EPA's model standards and techniques are not intended
to apply to larger residential buildings. In proposing the standards, the agency stated that
construction standards applicable to such buildings have not been "fully demonstrated," but
noted that limited experience shows that "some of the same radon reduction systems and
techniques used in residential buildings can be scaled up in size, number or performance
to effectively reduce radon in larger buildings."113
EPA should continue to encourage, and state and local governments should adopt,
radon-resistant new construction code provisions. Continuation of existing efforts along
these lines can have a positive effect on reducing radon risk in rental housing, to the extent
that new one and two family homes and buildings under four stories are used as rental
property. These efforts should be expanded to develop and promote radon-resistant
techniques that are applicable to larger multistory structures, which contain a substantial
number of all rental housing units.
Further development and communication of technical guidance in this area would
facilitate use of radon-resistant construction features generally. The promulgation of model
standards by the federal government or model code organizations might also promote the
adoption of state and local building codes applicable to multifamily structures. State and
local building codes could mandate the use of radon-resistant features in multifamily and
multistory rental housing construction, or establish performance standards requiring that the
radon levels in newly constructed buildings be below a stated level.
Instead of making radon-resistant construction techniques or performance standards
apply universally, the requirements could be limited to high radon potential areas; such "hot
110 59 Fed. Reg. 13402 (March 21,1994).
111 ASTM, Standard Guide E1465.
112 U.S. EPA. Implementation of OPPE Panel Recommendations. (1993) (unpublished material, on file at
the Environmental Law Institute).
113 58 Fed. Reg. 19097,19102 (April 12,1994).
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spots" could be identified using the county-level radon potential maps developed by EPA
in addition to any additional data collected by the state. EPA has taken this approach in
its model standards, which call for the implementation of radon-resistive construction
techniques in high risk areas only. New Jersey's radon-resistant new construction standards
are also tied to high risk areas in the state. This approach has the advantage of targeting
concentrated areas of known high risk, though it will exclude pockets of high radon potential
that may exist in areas officially designated as medium and low radon potential
Another way of promoting radon-resistant new construction would be to require the
use of radon-resistant features as a condition of receiving federal, state or local assistance
for the construction of new rental housing. "Assistance" could be defined broadly to include
not only construction and operating loans, but also tax benefits.
E. Conclusion
Radon education targeted to tenants can be important in making tenants aware of
their potential exposure to a serious environmental health hazard. Education alone,
however, will not bring about widespread reduction of high radon levels in rental housing,
particularly in rental properties that are home to lower income families. Instead, education
should be used in conjunction with, and as a means of strengthening implementation of, laws
that require acceptable radon levels in rental housing.
Tenants can seek judicial relief using legal doctrines that provide for a landlord's duty
to repair. However, it remains to be seen whether existing legal doctrines and statutes that
require landlords to provide safe rental housing will adequately address the problem of
tenant exposure to high levels of radon. Policy makers can take action by developing
legislation to address radon in new and existing rental properties. For new rental
construction, legislation should require radon-resistant construction techniques in at least
those areas designated as high radon potential zones. EPA and model code organizations
should work to develop standard techniques that apply to buildings greater than three
stories.
For existing rental housing, legislation should require owners to ensure that rental
units contain acceptable radon levels. This can be done by requiring testing and mitigation
either (a) by the owner/purchaser during the real estate transaction, or (b) by the landlord,
in the context of the landlord-tenant relationship.
A law requiring owners/landlords to demonstrate acceptable radon levels could
contain the following elements:
* an "acceptable" radon level (e.g., use of the EPA standard would; help
promote consistency among states), and criteria for demonstrating that the
property meets that level, including requirements for using qualified testing
and mitigation professionals and procedures.
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• a date on which requirements take effect; the requirements should be phased
in, beginning with properties that are located in high radon potential zones.
• disclosure of results; the results of any testing and mitigation should be
disclosed to tenants and should be provided to the relevant public agency,
provided that the agency treats the information as confidential.
• enforcement measures; enforcement resources could be targeted to high radon
potential areas.
This last component — enforcement — is particularly important, given the historical
difficulty in enforcing housing code requirements. Enforcement officials generally lack
sufficient resources to cany out inspections and follow through on violations. Moreover,
tenants armed with legal causes of action may nonetheless fail to exercise such legal
remedies because they lack the resources to file a rent escrow or rent abatement action,114
or because they fear their leases may be terminated for asserting their legal rights.115
Even radon laws that incorporate implementation and enforcement provisions may
be inadequate, standing alone, to address high radon levels in rental housing that is
affordable to low income families. Legal requirements to mitigate high radon levels may
lead to rent increases.116 Some properties could not provide sufficient rental income to
support the costs of radon mitigation. As discussed below, to preserve affordable housing,
radon risk reduction strategies should include some commitment of public resources to help
ensure that compliance with legal mandates will not diminish the availability of low and
moderate income housing in the community.
HL PROGRAMS ADDRESSING THE COST OF RADON MITIGATION IN RENTAL
HOUSING
Public policy strategies are needed to provide financial assistance for carrying out
radon risk reduction in affordable rental housing. Such strategies can be implemented
alone, or in conjunction with the legal approaches described in the preceding section.
Creating a financial assistance program for radon testing and mitigation requires not only
establishing radon reduction in rental housing as a priority, but also creating mechanisms
114 Indigent tenants can often obtain free legal services and a waiver of court fees. Many who do not qualify
for these services cannot afford to hire a lawyer, however, and may have difficulty filing on their own.
115 In this regard, "retaliatory eviction* laws are important to protect tenants. Such laws generally prohibit
a landlord from evicting a tenant when the reason for the eviction is the tenant's complaint or legal action against
the landlord. Nonetheless, these laws only provide short term protection, and usually depend upon a court
finding that the landlord had no other motive for evicting the tenant.
116 Rent control laws, currently in place in local jurisdictions in a number of states, provide some protection
by limiting the amount by which rents can be increased. Even under such laws, however, landlords can generally
petition for increases based on certain capital expenditures made to the property. Radon reduction might qualify
as such an expenditure.
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to fund such a program. At a time of shrinking budgets and program cutbacks, targeted
funding for a radon reduction assistance program -is critical. A state or local government
might establish a special surcharge to fund an assistance program. For example, Florida has
enacted legislation creating a surcharge on new construction and certain renovations, as a
source of funding for its radon program. Another source of funding might b&fses, such as
those charged in connection with a state's licensing or certification of radon professionals.
Also, any fines or penalties collected for violation of radon program requirements could be
devoted to radon testing and mitigation assistance.
The initiatives described below are institutional measures that require both political
wiH and time to develop and implement Although some of the initiatives build on existing
programs, some would require authorizing legislation as well as a commitment of public
resources. These approaches can complement commtinity based efforts to develop creative
strategies for directing resources to discrete projects. The programs described here might
also be used to help fund radon reduction for homeowners who are unable to afford the cost
of mitigation.117
A, Grants and Loans for Radon Risk Reduction
Federal and state radon agencies have implemented successful programs to subsidize
the cost of radon test devices to the public. Many states have used radon program funds
to provide reduced cost test Mts, and have worked with local retailers and local non-profit
organizations to distribute Mts. In addition, New York law makes financial assistance
available "for the performance of radon diagnostic services and the preparation of
specifications for appropriate, energy-efficient mitigation measures for one to four family
residences."118
There is relatively little state and local government experience, however, in
implementing programs to provide financial assistance for radon mitigation where testing
reveals high levels. Federal and state legislatures should consider creating new programs,
or drawing on existing funding programs, to help owners or purchasers of affordable rental
housing properties finance radon reduction.
1. Creation of a federal grants program
One approach to promoting radon reduction in rental housing is the establishment
of a federal financial assistance program designed exclusively for this purpose. Such a
program could provide grants, loans, loan guarantees or other assistance to owners of rental
Some 43 million, homeowners have household income below the poverty leveL Housing in America,
supra note 2, at 28.
118 Laws of New York, 1988, Chapter 239. This program is financed through energy overcharge funds,
rather than directly through state revenues.
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housing to test for and mitigate high radon levels.119 This assistance would be based on
financial need, as measured by eligibility guidelines on owner income and should be tied to
the continued affordability of the housing.
Federal lead poisoning legislation provides one model for this type of financial
assistance program. TMe X of the Housing and Community Development Act of 1992, the
Residential Lead-Based Paint Hazard Reduction Act, authorizes a HUD competitive grants
program for evaluation and reduction of lead-based paint hazards in private housing.120
Grants may be given to state and local governments, which can use the funds in a variety
of ways, including the award of grants, loans, loan guarantees and interest write-downs.
Recipients must provide 10% matching funds.121 Title X specifies certain selection
criteria, including the extent of lead-based paint hazards in the jurisdiction to be served
under the proposed grant It also sets out a list of eligible activities .under the grant.
A radon risk reduction grants program could be similarly structured. The selection
criteria could include a preference for areas that have been designated by EPA as high
radon risk potential, or that have otherwise documented the existence of high radon levels
in rental housing. Legislation could speH out the types of eligible activities, such as
mitigation of buildings where testing reveals radon above a specified level The program
could require, as a condition of funding, that covered services be provided by radon
professionals who have completed EPA's proficiency program or a state equivalent The
program should also require reporting of test results to tenants and to state and local radon
agencies for purposes of data collection. Finally, a grants program could include a
requirement that a percentage of funding provided to the jurisdiction be used in a way that
promotes economic opportunities in the affected communities.122
2. Creation of a state radon assistance program
States could establish a radon grants program in much the same manner as the
federal government In addition to grants, state agencies could provide loans with interest
119 The legislation would probably adopt EPA's current action level of 4 pCi/L; unless scientific or technical
information demonstrated that this level should be changed, policy makers would create considerable controversy
by adopting a different standard for rental housing than was recommended for owner-occupied residences and
other buildings.
130 Public Law 102-550, §1011.
*** Public Law 102-550, §1011(h). To be eligible, recipients must also have an approved "Comprehensive
Housing Affordability Strategy (CHAS)," as required under §105 of the Cranston-Gonzalez National Affordable
Housing Act §1011(b).
For example, the Baltimore Jobs M Energy project as well as Consumer Action's San Francisco Lead
Poisoning Prevention Project have developed a project for using Title X funding to train unemployed community
members to do interim lead control work.
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subsidies based on financial need. State agencies that administer other housing-related loan
programs could work with the state radon program to implement a radon low interest loan
program. States could also administer loan programs together with a local bank willing to
participate in the program.
Connecticut recently developed a program to make radon mitigation grants available
to low income renters and homeowners. The state health agency is using part of its federal
State Indoor Radon Grants (SIRG) program fending to operate the initiative as a
demonstration project, and has contracted with the state housing agency to manage the
project The housing agency identifies financially disadvantaged owners or renters whose
homes have high radon levels and processes the grant applications, which must ultimately
be approved by the health agency. Grants are provided to cover the costs of radon
mitigation, which must be performed by a contractor who has been approved under the
state's certification and registration laws.123
Although the current federal radon law urges states to give preference to low income
persons in implementing radon mitigation programs, the SIRG program covers radon
mitigation activities only as demonstration projects.124 EPA should therefore promote the
use of SIRG funding for other demonstration projects that focus on mitigation of affordable
rental housing.125
Nevertheless, states will be somewhat restricted in using SIRG funds to develop
comprehensive financial assistance programs for radon risk reduction activities. To
encourage the use of SIRG funds for such programs, Congress could broaden the SIRG
program to explicitly cover a state's award of grants for radon testing and mitigation in
rental housing. Congress could go farther by requiring that states devote a portion of their
SIRG funding to radon mitigation in rental housing, e.g., through a grants program.
However, since most states are already seeking to accomplish a broad range of activities
with limited funding, such a requirement would only be feasible if accompanied by an
increase in federal funding for state radon programs.
123 Telephone conversations with Connecticut Department of Health Services official (April 8, 1593 and
August 10,1993). The Department of Health Services administers the state's radon program.
Connecticut has also started a radon public education initiative targeted to Latino residents, particularly
renters. The state will seek to make testing devices available through this project, and to connect potentially
eligible households with the state's radon mitigation grants program. Id.
124 15 U.S.C. §2666(c)(9),(i)(2).
125 For example, EPA could use its easting legislative authority to focus demonstration mitigation projects
on developing efficient and cost-effective mitigation techniques for low income rental housing. The Act not only
authorizes EPA to establish priority areas for funding state programs, but also states that "the Administrator
should select homes of low-income persons, to the maximum extent practicable and consistent with the objectives
of the demonstration." 15 U.S.C. §§ 2666(e), 2665(a)(6).
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3. Application of related funding programs to radon risk reduction activities
Another vehicle for providing financial assistance for radon mitigation is
through already existing programs that provide funding for related activities. Housing and
community development programs, for example, provide extensive funding to preserve and
rehabilitate affordable housing. Radon testing and mitigation could be made eligible
activities under such programs; or, federal and state programs could go further by requiring
acceptable -radon levels in connection with any funded rehabilitation projects.
Two federal programs that are potentially applicable to the radon reduction context -
- HUD's Community Development Block Grant and HOME Investment Partnership
programs — are described below, as are analogous state programs that could be used to fund
a state initiative. In addition to these, federal agencies such as HUD, the Veterans
Administration and the Department of Agriculture have housing programs that could
incorporate radon testing mitigation. Federal programs in areas other than housing ~ e.g.,
the health-related programs of the Department of Health and Human Services or the
training programs of the Department of Labor — might also be appropriate vehicles for
funding radon testing and mitigation.
a. Community Development Block Grant Program
The Community Development Block Grant (CDBG) program is the most widely used
federal housing and community development program. It aims to "provide decent
housing and a suitable living environment and [greater] economic activities."127 State and
local governments receive funds according to a federal formula, and allocate the funds to
local agencies; the local agencies may, in turn, make funds available to individual
households or to community organizations.
Among the activities for which local agencies may use CDBG funds are housing code
enforcement and rehabilitation of residential housing, provided that 75% of such activities
involve low and moderate income housing. CDBG recipients could consider making radoa
mitigation an explicit priority area, as part of the recipient's general program for
rehabilitation of affordable housing. In addition, if acceptable radon levels were
incorporated into the relevant housing code, a CDBG recipient could include radon testing
and mitigation as part of its activities to bring affordable housing up to code.
In order to encourage states to use community development money to fund radon
reduction in rental housing, HUD could notify recipients that radon testing and mitigation
are eligible activities. Congress could go a step further by amending the CDBG legislation
to explicitly include radon testing and mitigation as a separate category of covered activities
and-4o provide additional funding for those activities. To target limited resources, HUD
126 42UJS.C.§53Qletseq.
127 Id. at §5301(c). In administering the CDBG program, the Secretary of HUD must require, to the extent
possible, that opportunities for training and employment in connection with funded projects be made available
to low income persons living in the project area. 12 U.S.C. §1701u.
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could consider high radon potential areas as a priority for this funding. If additional funding
were provided, Congress could consider .requiring, as a condition of receiving funding, that
recipients demonstrate how they plan to address radon in low and moderate income housing.
This requirement already exists hi the lead-based paint context; in order to receive CDBG
funding, jurisdictions must indicate how they plan to address lead-based paint hazards.
b. HOME Investment Partnership Program
The HOME Investment Partnership (HOME) program is a federal initiative that
makes grants available to states, large cities and urban counties. These grants, which
require local matching funds, can be used to subsidize the development of low or very low
income housing, including rehabilitation or site improvements.128 Therefore, states and
municipalities might include radon mitigation as part of broader rental housing
rehabilitation projects to "preserve" affordable housing, when seeking funds under the
HOME program. As with the CDBG program, HUD and Congress could take affirmative
steps to encourage recipients of HOME funding to undertake radon testing and mitigation.
• c. Existing state programs
States might similarly expand existing programs hi areas such as housing and
community development or energy efficiency, depending on the scope of those programs.
Many programs already exist on the state level to make low interest loans or grants
available for such activities as rehabilitation, energy conservation, and basic habitability of
rental and owner-occupied housing. Often the owner and/or tenants must be income-
eligible. Where existing programs are structured to exclude activities like radon mitigation
states might consider legislative changes to include radon testing and mitigation as
permissible uses of such assistance.
B. Tax Credits
One way to encourage radon testing and mitigation in rental housing would be
through an income tax credit for rental property owners. A tax credit could be enacted at
the federal or state level, depending on state tax law. For example, Massachusetts law
provides a tax credit for lead-based paint abatement.
In the radon context, legislation could allow owners of low income rental housing a
tax credit for the total dollar amount paid for radon mitigation in a rental building or for
a percentage of the actual radon reduction costs, up to a certain amount. A tax credit
program should specify the type of rental property that qualifies as well as the nature of
radon-related services covered, and should require documentation of radon test results in
excess of a given level. Owners should be required to demonstrate that mitigation services
were provided by a professional who has been approved by the state or has participated in
EPA's proficiency program.
128 See 24 C.RR. §92.205.
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A tax credit or tax deduction might also be provided to radon professionals who
make radon-related services available to low-income rental buildings for free or at reduced
cost Such legislation would need to specify in detail the types of services that would qualify
for the credit
C. Direct Assistance
In addition to providing financial assistance for radon mitigation, states could
establish programs to provide mitigation services directly to eligible households. To date,
most direct assistance programs have involved the distribution of free or reduced cost radon
test devices. Federal law specifically allows SIRG funds to be used by states to purchase
radon measurement devices. Numerous state and local radon programs have subsidized the
cost of radon test Mts and have worked with community organizations and local retailers to
make these Mts available to the public. The state of Washington has addressed radon
testing in new residential construction by enacting a law requiring building inspectors to
deEver a radon testing kit to all new residences at the time of building inspection.129
States can ensure mat their radon testing initiatives extend to rental housing as well
as owner-occupied homes, and can give greater consideration to providing radon mitigation
services. One potential model for such a direct assistance program is the federal
Weatherization Assistance Program.
The federal government, through the Department of Energy, funds the
Weatherization Assistance Program (WAP), which provides weatherization services to low
income rental and owner-occupied households.130 States receive federal WAP funding to
establish weatherization programs through local community-based organizations and
agencies. Qualified households receive in-kind services such as replacement or repair of
doors and windows. Owners of rental property must consent to receiving the services, and
must agree that "the rents on such dwelling units will not be raised because of any increase
in the value thereof due solely to weatherization assistance provided [under WAP]... ."B1
A radon mitigation services program could be modeled on the weatherization
program. Like WAP, it would provide direct home repairs in non-subsidized rental
buildings, and would target low income renters. Key elements of the program would be the
use of financial eligibility guidelines and restrictions on increases in rent levels foEowing the
provision of services.
129 Washington Substitute Senate BUI 6386; Chap. 132, Laws of 1992.
m 42VJS.C.$6861etseq.
131 Id. at §6863(b)(2)(B). This prohibition reflects the legislative goal that weatherization services in rental
units are to accrue primarily to the benefit of low income tenants. The Department of Energy recently
promulgated regulations implementing the statutory provision. 58 Fed. Reg. 12528 (March 4,1993); 10 CJFJR..
§44Q.22(b)(3). Although the limitation on rent increases directly addresses the issue of preserving and enhancing
affordable housing, the measure has been criticized as being to vague to implement effectively. See, e.g., National
Consumer Law Center, "Protection of Renters in the Weatherization of Low-Income Housing" (1987).
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As an alternative to creating a wholly new program for providing radon mitigation
services to low income homes, states should consider expanding the work done through
existing weatherization providers to include radon testing and mitigation services. Once a
dwelling is selected for weatherization services, the WAP subgrantee could test the home
for radon; if high levels were found, radon mitigation measures could be provided in
addition to weatherization services. Radon mitigation could also be provided to homes
independent of whether any weatherization services were also being provided. Such an
approach would only be feasible if adequate additional funding was provided to cover the
radon-related work.
The current weatherization law itself envisions the possibility of addressing other,
non-energy related problems.132 The Department of Energy recently adopted regulations
that require states to develop procedures to ensure that subgrantees address health and
safety concerns related to weatherization. The regulations call on states to develop a list
of energy-related health and safety hazards, including permissible abatement materials and
their costs.133 The new WAP regulations expand the list of allowable expenditures to
include "the cost of eliminating health and safety hazards elimination of which is necessary
before, or because of, installation of weatherization materials."134 The Department of
Energy has issued an interim guidance document on the types of health and safety hazards
that may be considered. The guidance document encourages procedures that would allow
for radon testing where radon potential is high. However, the guidance would limit the use
of weatherization funds for mitigation to circumstances where "an energy audit indicated
weatherization techniques that help in abatement."135
The critical issue in coordinating weatherization services with radon testing and
mitigation is whether radon costs can be covered without displacing already limited funding
for weatherization services. The WAP program places a limit on expenditures per dwelling.
The regulations also require grantees to establish a limitation on the percentage of average
132 yjjg jaw was amended -m 1990, and now aims to achieve "a balance of a healthful dwelling environment
and maximum practicable energy conservation.* 42 U.S.C. §6863(b)(2)(A). This statutory language reflects
Congress' concern that "many of the dwellings that receive weatherization assistance have other non-energy
related problems or defects which threaten the health or safety of the occupants of the dwelling." 1990 U.S.
Code Congressional and Administrative News, 1659.
133 10 CJFJL §440.16(h).
134 10 C-FJR. §440.18(c)(15).
Some commentators have suggested that weatherization activities may have an exacerbating effect on
high radon levels, because measures to enhance energy efficiency in homes may further reduce the
indoor/outdoor air exchange rate, preventing radon from escaping. See, e.g., General Accounting Office, Air
Pollution: Hazards of Indoor Radon Could Pose a National Health Problem (June, 1986); J. Cook & D. Egan,
Jr., "Mitigation" in Environmental Radon, supra note 6, at 255. There does not appear to be consensus on this
issue, however, and EPA is currently undertaking further research to explore the relationship between
weatherization activities and radon levels.
135 Department of Energy Weatherization Program Notice 93-13 (Dec. 29,1993).
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dwelling unit costs that can be used to abate energy-related health and safety hazards.136
The, DOE comments accompanying the new regulations note that states are expected to
"limit such expenditures for non-weatherization materials to a reasonable percent of average
dwelling unit costs in light of the primary energy conservation purposes of WAP."137 The
DOE also points out that legislative history of the 1990 Act indicates that the House of
Representatives anticipated that WAP subgrantees would seek other funding sources to pay
for non-energy-related health and safety repairs.138
It is necessary, therefore, to supplement WAP funding in order to link weatherization
and radon mitigation. One way to do so would be to use radon program funds to pay for
some or all of the radon testing and mitigation costs. If radon testing and mitigation in low
income rental housing is a priority for a radon" program, the weatherization program may
already have the capacity to implement the initiative. WAP subgrantees have experience
managing the type of work that would be undertaken in performing radon mitigation. In
addition, weatherization offices work with low-income families and would be able to provide
effective outreach to low income communities for carrying out radon-related services.
Because WAP offers an existing institutional structure for providing radon mitigation in low
income housing, the cost of setting up a radon testing and mitigation project may be lower
than if a wholly new entity were created.
The state of New York recently experimented with the use of weatherization offices
to carry out radon mitigation. The state health agency used SIRG money to fund local
weatherization offices to provide radon mitigation to low income families. The local
weatherization subgrantees conducted outreach to identify owners of low income housing
who were interested in participating in the program, tested the buildings, and arranged for
mitigation of those buildings that contained radon levels over 4 pQ/L, SIRG funding was
provided to cover mitigation costs, and the project made use of existing state programs that
provide radon testing and diagnosis. The New York program concluded that it is feasible
and appropriate to use weatherization program offices to perform radon mitigation for low
income households.139
To enable state radon agencies to fund radon mitigation either modeled on, or in
conjunction with, weatherization .programs, federal law could be amended to add such
activities to the list of allowable expenditures under the SIRG program. Given the already
limited budgets of most state radon programs, increased federal funding would have to be
136 10CJJR.$44Q.16(hX2).
137 58 Fed. Reg. 12517 (March 4,1993).
338 Id, The House Report on the legislation states that "(i)t would be a simple matter for these local
program operators to do additional health aad safety repairs at the same tune they do the weatherization
improvements, if they had additional non-energy funding. The Committee urges the Secretary [of Energy] to
work with the Secretary of HUD and with state and local agencies in a demonstration of a more comprehensive
housing repair program," 3590 U.S. Code Congressional and Administrative News, 1659.
139 Telephone conversation with New York Department of State official (July 1,1993).
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provided in addition to legislative authority. Federal funding for radon reduction activities
could also be provided to the WAP program directly. In addition, federal law could be
amended to require coordination between EPA and DOE on information and technical
assistance necessary to most effectively incorporate a radon risk reduction component in the
weatherization program.
D. Facilitating "self-help" radon mitigation in rental housing
Some rental housing owners who are unable or unwilling to hire a professional radon
contractor will be interested in performing radon mitigation work themselves. A radon
program may be able to promote radon reduction in rental housing by facilitating effective
do-it-yourself mitigation activities. There are important reasons for considering programs
to help owners do mitigation work on their own properties. In some parts of the country,
particularly rural areas, it may be difficult to obtain the services of a professional radon
contractor. Some small landlords may find that the cost of hiring a radon contractor is
prohibitive in relation to the value of their property. Moreover, some owners are
accustomed to doing their own major home repairs, or have built their own homes, and
believe that they can do radon mitigation work themselves whether or not such an approach
is officially sanctioned. Conversely, the mere fact that the there is information available on
self-help radon mitigation techniques is unlikely to persuade those who are not already so
inclined to do the work themselves.
There are a number of drawbacks to encouraging self-help in this area. First, there
are potential health and safety considerations involved with radon mitigation, such as
exposure to asbestos, formaldehyde and other hazards. For these reasons, any agency or
organization seeking to provide guidance on self help must ensure that the guidance
adequately addresses any issues that might affect the safety of owners (mitigators) and of
residents. Second, self-help may not be appropriate for larger buildings, where mitigation
techniques have not been widely tested. Therefore, public policy in this area might be better
directed to single family rental homes or small, multifamily buildings. Finally, there is a
concern that individuals who have not been specially trained in radon mitigation may do an
ineffective job. If this is the case, then program resources might be better spent on other
mitigation initiatives. However, there has been little emphasis on self-help to date, and little
data collected on the success of do-it-yourself efforts. Any guidance in this area should
include retesting of the home following mitigation to ensure that radon levels have been
lowered. This guidance could specify inspection of a home owner-installed system by a
professional who has successfully completed EPA's Radon Contractor Proficiency (RCP)
program, or by a building inspector.
Wyoming's state radon program has created a project to train and assist owners
interested in mitigating their property by reducing radon entry from soil.140 Together with
Colorado Vintage Companies, Inc., the radon program developed a one-day seminar on
mitigation techniques that do not require a higher level of skill than that of an experienced
, 14° The information on Wyoming's program is based on a telephone conversation with Wyoming
Department of Health officials (Jane 29,1993).
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"do-it-yourselfer." The course emphasized occupational safety issues and was designed to
alert participants to the range of potential situations that might be encountered while
performing radon mitigation. The pilot seminar was held in April, 1993 and was attended
by 11 people whose homes had tested above 20 pCS/L. Of the 11, three decided after
attending the course that they would hire a professional radon contractor to do the
mitigation. For those who will undertake the mitigation on their own, the radon program
provides a free long term radon testing device to measure the results. One participant
indicated that he would also mitigate rental property he owns that tested above 4 pQ/L.
A workbook has been developed to be used in conjunction with future workshops; the book
describes those mitigation situations that should be handled by a professional contractor
rather than a property owner.141
Depending on the number of owners who indicate interest in taking the steps
necessary to effectively and safely mitigate their own property, a particular radon program
can determine whether or not it should invest in facilitating self-help mitigation. If such a
project is undertaken, radon program officials should determine carefully the circumstances
in which do-it-yourself approaches are appropriate. Because of the safety issues related to
radon mitigation, as well as the skill level involved, any efforts to facilitate self-help
mitigation should include education that thoroughly addresses these factors. A radon
program could provide a training program similar to that undertaken in Wyoming and could
waive any fees involved for participants who own affordable rental housing. The program
could further encourage the use of an RCP-listed diagnostician to provide a mitigation plan
and answer questions.
In addition, a radon program could promote more effective self-help mitigation by
• exempting owners who undertake radon mitigation of their property from
certification or licensing requirements. Such an exemption should be
conditioned on attending a workshop or obtaining some other form of
training,
• establishing a program with local retailers to facilitate and/or subsidize the
purchase of appropriate materials for radon reduction.
• creating a program to subsidize a local agency or organization that can
provide or lend to owners of affordable housing the materials necessary to
undertake mitigation.
Colorado 'Vintage Companies, Inc.. Protecting Your Home From Radon: A step-by-step manual for the
Jo-lt-yourselfer (1993).
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IV. CONCLUSION: Using Legal Requirements and Financial Assistance Programs to
Reduce Radon Risks in Rental Housing
Research to date demonstrates that people who are exposed to high indoor radon
levels over time face a considerable risk of developing cancer. Public and private agencies
have made great strides in educating citizens about radon generally, but much work remains
to be done to broaden public awareness and achieve greater radon testing and mitigation
of high radon levels. Although home owners represent the largest group that is potentially
at risk from residential exposure to radon, tenants across the country also are being exposed
to high radon levels. This facet of the problem presents a more complex challenge for policy
makers who seek to design effective radon risk reduction strategies.
This paper has argued that both legal requirements and financial assistance programs
need to be developed to promote radon testing and mitigation in rental housing. While
education remains a vital component of a radon program, simply informing tenants that they
may be exposed to high radon levels is a poor strategy if the tenants have no viable options
for remedying the problem.
Legal requirements are an important component in a strategy for reducing high radon
levels in rental housing. Although tenants can pursue existing legal claims, such as under
the warranty of habitability, explicit legislative measures are needed to define clearly the
responsibility for addressing radon problems.
States seeking to ensure that radon problems in rental housing are addressed can
target radon education to landlords and tenants, and can establish the following legal
requirements:
• a duty to test for, disclose and mitigate high radon levels, either (a) by
owners/purchasers during the real estate transaction or (b) by landlords in the
context of the landlord-tenant relationship; and
• building codes applicable to rental premises, which incorporate radon-resistant
construction features.
States might take a more limited approach to adopting such requirements, by making
them applicable only to property located in areas identified as high radon potential zones.
This serves to target action to areas believed to contain the greatest numbers of homes with
high radon levels, however the approach has certain drawbacks. First, it misses those
properties that have high radon levels, but that are located in low or moderate radon
potential areas. Second, it requires continuous changes in implementation strategies to
incorporate changes in mapping of radon potential zones. Third, it might create the
implication that owners of properties outside high radon potential zones need not worry
about radon, and therefore need not test. A preferable approach would be to phase in
requirements, beginning with properties located in high radon potential zones at the time
the law is enacted, and to target enforcement to high radon potential zones.
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While regulation of landlord-tenant matters and building codes are traditionally left
to state legislatures, the federal government can facilitate state legislative initiatives in a
number of ways. It can develop technical information relating to radon resistant-
construction and radon mitigation in large buildings, and can condition federal assistance
for new construction on the use of radon-resistant techniques. The federal radon program
can also promote radon education initiatives directed to tenants. Finally, the current
voluntary proficiency programs could be expanded and made mandatory, in order to help
ensure that there are qualified professionals to perform radon testing and mitigation in
rental housing.
Although legal requirements alone may result in radon testing and mitigation in a
portion of the rental housing market, additional measures are necessary in order to
accomplish radon testing and mitigation while preserving housing that is affordable to lower
income families. Federal, state and local agencies can build on existing programs and create
new programs to provide financial assistance for radon testing and mitigation. These might
include:
* grants and loans;
» tax credits;
• testing and mitigation services; and
• training and materials for self-help mitigation.
This paper has suggested some legal and policy took for addressing the problem of
radon, in rental housing. There are many other steps that can be encouraged - e.g.,
adjustment of real estate appraisal guidelines — and creative initiatives that can be
developed by individual communities based on their needs and resources — e.g., a radon
professionals' "pro-bono" radon assistance program for lower income families. Regardless
of the specific mechanisms chosen, concerted efforts must be made in order to reduce the
risk of exposure to high radon levels in rental housing. This will require that federal, state
and local governments, as weH as the private sector, move from a general public education-
oriented strategy to a more focused approach that takes into account the differences
between rental housing and owner-occupied housing and that affirmatively seeks to preserve
affordable housing.
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