Regulation of Minnesota radon contractors is headed to court

A Minnesota law that would place new licensing requirements on radon-remediation companies could go to trial this spring after part of the law was blocked for more than a year when the industry sued, claiming that the regulations could put them out of business.

Radon, a colorless and odorless gas that can seep from the ground into houses, is the second leading cause of lung cancer. Until last year companies that measure for radon or perform radon mitigation in Minnesota operated under few state rules.

A 2015 law authorized the Minnesota Department of Health (MDH) to regulate the industry, levying licensing fees and setting standards for training, equipment, reporting and quality assurance. It also gave the agency the power to fine rulebreakers.

The licensing requirements apply only to companies that provide services to homeowners or businesses. Homeowners don't need a license to use do-it-yourself test kits or make physical adjustments, such as venting radon gas out of the home or closing gaps where radon seeps in.

The Association of Radon Professionals sued in Ramsey County District Court in mid-2018, challenging the constitutionality of the license law and alleging that their due process rights were violated.

"Large portions of the law don't advance consumer safety, they just create a burden on small business owners that is going to drive up the cost for consumers to get radon testing and mitigation performed," said Stuart Campbell, an attorney with Moss and Barnett in Minneapolis, which represents the industry group. Standard Water Control Systems Inc. in Crystal is also a plaintiff.

In late 2018, Judge Richard H. Kyle issued a temporary injunction blocking the licensing requirements for businesses that perform mitigation for residences. But he let stand parts of the law that require regulation of companies that measure the gas in buildings that they don't own or lease. Companies that do mitigation work for businesses and schools are also now regulated.

In court documents, the Health Department said it asked the Legislature to set standards because it was receiving so many complaints from consumers about defective or improper radon mitigation systems.

"MDH became aware that unqualified contractors, usually advertising low prices, were performing more and more radon mitigation of existing homes in Minnesota," said one legal filing. Department officials declined to comment on Tuesday, citing the ongoing litigation.

Campbell said the industry group does not oppose all regulations but believes it would be better for the Minnesota Department of Labor and Industry to oversee the industry since it regulates radon mitigation in new construction. "MDH has come up with these rules without substantial consultation with the industry," he said.

The group has also lobbied at the Capitol, and there have been several unsuccessful attempts to repeal the law outright.

Rep. Tama Theis, R-St. Cloud, supports repeal of the law but due to a conflict of interest she will not sponsor a bill to that effect; she and her husband operate a home inspection business that performs radon testing.

As a result, she has raised the price for radon testing to $175 from $150.

In addition to increasing company costs through record-keeping and training, the industry says the $150 to $250 licensing fees, along with a $75 "tag" that is required for each business mitigation, will consume as much as 5% of the industry's revenue. Several cities already require licenses for radon mitigation, meaning that some firms will have to pass on the cost of two fees to customers. Most mitigation jobs run $1,500 on average, the trade group said.

In a document sent to the industry last month, the Health Department said it has issued about 400 licenses. It also said it has levied some fines for testing without a license and using unapproved testing devices. The fines were forgiven after the individuals complied with the law.

But the trade group said one firm was "threatened" with a fine of $20,000, something the agency disputes. The trade group also said it fears the agency will stop forgiving fines as the law ages.

About two out of every five homes in Minnesota has radon levels that are considered dangerous, the Health Department said in a separate announcement Tuesday. Radon seeps in from the ground but can't be detected without specific testing equipment. Exposure over time can lead to lung cancer.

"We do radon testing because we believe it is the right thing to do," said Theis. "The licensing sure made it difficult to do the right thing."