26 ELR 10466 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Radon in Rental Housing: Legal and Policy Strategies for Reducing Health Risks

Tobie Bernstein

Tobie Bernstein is a Senior Attorney at the Environmental Law Institute. Previously, she was Staff Attorney at the Legal Aid Bureau, Inc. of Southern Maryland. Ms. Bernstein received a J.D. from Harvard University and a B.A. from Washington University. The author would like to thank her colleagues Paul A. Locke, Elissa Parker, and Philip Warburg for their valuable assistance.

[26 ELR 10466]

Over the past several years, considerable public and private efforts in this country have been directed at reducing the risk of cancer that human exposure to high levels of radon gas poses. These efforts appear to have succeeded in raising public awareness of radon and in increasing testing for radon.1 For the most part, however, these efforts have been directed toward homeowners and have not addressed the problem of radon in residential rental properties. Yet in 1989, nearly 34 million homes—over one-third of all housing units in the country—were rental units.2 The vast majority of these units are either single-family homes or are located at or below the second floor of a building, where experts believe radon is concentrated.3 This Dialogue explores the problem of high radon levels in rental housing and discusses some of the legal and policy tools available for reducing radon risks.

The Problem of Radon Exposure

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 long-term exposure to 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 Because the air pressure within buildings is lower than the pressure in the surrounding ground, buildings draw in radon from the soil and rock.7 This Dialogue does not discuss less significant sources of radon exposure such as well water and building materials.

Based on health studies and on the available techniques for reducing radon, the U.S. Environmental Protection Agency (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.8 While the average radon level in [26 ELR 10467] homes in the United States is 1.25 pCi/L, an estimated six million homes contain radon levels at or above EPA's action level.9

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" that assigns a Zone 1, 2, or 3 designation to each county, based on predicted average indoor radon screening levels.10 High indoor radon levels, however, have been found throughout the country, and only testing of an individual structure can rule out the existence of a radon problem.11

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, which authorizes radon activities at the federal level.12 Public education and risk communication are central features of this program. 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 of radon, and the relative convenience and affordability of testing. Testing involves the placement and retrieval of a small testing device, followed by laboratory analysis of the device. A radon test is left in the home for a period of time ranging from a few days to several months. 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. The agency estimates that the cost of mitigating high levels of radon in a single-family home ranges from $ 500 to $ 2,500.14

In addition to public education and risk communication efforts, EPA has worked with nongovernmental entities to provide an "infrastructure" 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, and has published model standards for radon-resistant new construction.15 EPA has established voluntary proficiency programs for radon professionals and radon devices 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 program.16 State activities generally parallel those at the federal level, with most states focusing on public education and promotion of radon testing. Many states have gone further by adopting legislative and regulatory requirements. Approximately one-half of the states require disclosure of either general radon information or known radon levels during residential real estate transactions.17 Numerous states and the District of Columbia have adopted legislation establishing certification or licensing programs for radon professionals and radon devices.18 Several states and local jurisdictions have incorporated radon-resistant construction techniques into building codes.19

The Need for a Unique Approach to Reducing Radon in Rental Housing

Radon risk-reduction efforts thus have focused on developing the technical knowledge to fix radon problems and encouraging homeowners to take action. Rental housing differs from owner-occupied housing, however, in ways that present technical, legal, and policy challenges for developing radon risk-reduction strategies. Radon initiatives that fail to take these differences into account will likely fail to reduce exposure to high radon levels in rental housing.

Thus far, most technical research into residential radon testing and mitigation has involved single-family houses and small buildings. As a result, radon testing and mitigation protocols for single-family homes are well established. While most families living in rental housing reside at or below the second floor, more than one-fifth of all rental units are in buildings of four stories or higher.20 The public and private sectors have less experience testing and mitigating larger buildings, and separate protocols for large residential buildings have not been developed. EPA and the U.S. Department of Housing and Urban Development (HUD) have completed a joint demonstration program to test and mitigate several HUD-owned properties. That effort focused on small rental buildings, although the draft radon measurement guidance developed in connection with the program does address multistory buildings.21

In addition to technical research, legal and policy strategies [26 ELR 10468] are needed to address the differences between owner-occupied and rental housing. Radon education strategies targeted to homeowners may fail to reduce radon risks in rental housing, because the owners of rental property are not the parties facing the potential health risks. Therefore, education efforts and testing programs must be geared to tenants as well. Nevertheless, radon education alone may fail because tenants generally lack the legal and financial control and authority to make the major repairs or alterations necessary to reduce high radon levels. Moreover, many tenants may not be in a position to ensure that owners make the needed repairs.

The remainder of this Dialogue explores two components of a legal/policy strategy for reducing radon in rental housing. The first component consists of legal requirements aimed at reducing unacceptable radon levels in rental housing. It explores specific areas of law that provide vehicles for establishing radon disclosure, testing, and mitigation requirements. The second component involves government policies designed to make public-sector resources available to help carry out radon reduction in rental housing occupied by families with limited incomes. It focuses on the problem of preserving affordable housing while establishing requirements for acceptable radon levels in rental housing, and describes some programs that address the cost of undertaking radon testing and mitigation in rental properties. 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 potential health consequences associated with long-term exposure to high levels of radon presents a strong case for taking action.

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. Existing laws and legal principles most relevant to radon in rental housing are not adequate to address the problem.

This section first discusses tort 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. The section next describes a range of possible legal measures for clarifying rental housing providers' duty to reduce unacceptable radon levels. With respect to existing rental properties, state legislatures might consider requiring 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 ongoing landlord-tenant relationship. With respect to new residential rental property, legislation could mandate the use of radon-resistant construction techniques to help prevent high radon levels in new properties.

Liability in Tort for Damages Resulting From Hazardous Conditions

Liability for damages provides an indirect means of promoting the maintenance of safe conditions in rental property, insofar as the potential imposition of tort liability on property owners22 creates an incentive to maintain premises. For a variety of reasons, however, potential liability for damages from radon exposure may not dramatically affect radon testing and mitigation in rental properties.

Background. Traditionally, landlords generally were immune from tort liability for injuries to tenants resulting from defects in the premises.23 Some state courts continue to follow this principle.24 However, the establishment of judicial doctrines and laws requiring landlords to maintain rental premises have helped to shape a transformation in landlord tort liability, and courts have begun to move away from the doctrine of landlord tort immunity.25 Some courts have held that the violation of a warranty of habitability26 or of a statute establishing a landlord's duty to maintain the premises amounts to negligence per se.27 Other courts have found that such violations are evidence of negligence.28

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 in 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.29 This standard of care is reflected [26 ELR 10469] in § 17.6 of The Restatement (Second) of Property, which provides for liability if the landlord has failed to exercise reasonable care in maintaining the premises and if 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.30 According to this formulation, a landlord is liable only if she or he knew, or should have known, of the existence of the defect.

Radon and Landlords' Liability for Defects. No reported decisions have established directly the existence or absence of landlord liability for damages resulting from radon exposure in rental housing.31 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. In states that apply negligence principles to landlord liability, courts have foundthat 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.32 Some courts have found landlords strictly liable for lead poisoning, although those findings were based in large part on the existence of state laws prohibiting lead-based paint.33

One court 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. The case did not involve a violation of a specific building code provision, and the court found that the state's general statutory warranty of habitability did not extend strict liability to landlords for unknown defects.34

Thus, knowledge of high radon levels is probably a prerequisite to landlord liability. Actual knowledge of radon levels is obtained only through testing. Even where a rental unit has not been tested for radon, a tenant might claim that the owner should have known about the condition. Because the health hazards of radon are now widely publicized and owners have some responsibility for the safety of the premises they lease, a court might find that the owner should have tested for radon. Legislation requiring radon testing in rental properties would strengthen the basis of landlord liability for exposure to high radon levels.

Nevertheless, in order to recover damages for exposure to high radon levels, tenants must demonstrate not only that the owner knew or should have known 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,35 traditional tort law prohibits recovery for anticipated injury.36 While there has been significant judicial and scholarly consideration of this issue, the likelihood of recovering damages resulting from radon exposure remains highly uncertain. Another barrier to bringing a tort suit is tenants' lack of information, both about radon and about their legal rights. Moreover, limited-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.

Rather than waiting for the courts to determine, in the context of a tort suit, the reasonable standard of care for owners with respect to high radon levels, states could clarify the standard of care through legislation defining the duties of the owner to test for and fix high radon levels. Violation of such a law might, in turn, be considered negligence per se, or at least evidence of negligence, in a suit for personal damages.

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 [26 ELR 10470] properties. The approach generally taken with respect to owner-occupied homes—disclosure of radon information to prospective purchasers—will not prove as effective in the transfer of rental property. Additional measures are needed in order to achieve radon testing, disclosure, and mitigation in rental property transfers.

Background. No state laws currently require radon testing or mitigation in connection with the real-estate transaction, although some states have considered such legislation.37 State laws that address radon in the context of the real-estate transfer generally do so by requiring disclosure of radon information to prospective purchasers. A few state laws require that sellers provide potential buyers with general information on radon, usually in the form of a warning or notice contained in one of the transaction documents.38 Most disclosure laws require sellers of residential property to notify potential purchasers of the existence of various known conditions or defects in the property, with radon included in a checklist of items to be disclosed.39 These laws, which often apply only to buildings with four or fewer units, may actually discourage sellers from testing for radon because they require disclosure of specific radon levels only if those levels are already known by the seller. In any case, the seller may already be under a common-law duty to disclose high radon levels of which he is aware.40

Federal law does not require disclosure of radon information to prospective purchasers of residential real estate. The Residential Lead-Based Paint Hazard Reduction Act of 199241 does require that purchasers be provided information about another indoor hazard, lead-based paint. 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 radon disclosure measure has been proposed.42

Strategies for Promoting Radon Testing, Disclosure, and Mitigation in the Sale of Rental Property. In general, purchasers of residential rental properties are most likely to pursue radon mitigation if they perceive potential liability from tenants' exposure to high radon levels. Strategies involving disclosure of radon information to purchasers will be more effective if they require fairly specific information about the condition of the property. Such information would put the potential owner on notice of a hazardous condition in the property, which could in turn result in liability for damages caused by the hazardous condition.

State or local governments thus might promote mitigation of high radon levels in rental housing by requiring that owners (and possibly real-estate agents) disclose a property's radon levels before transfer, and by linking this requirement to a duty to disclose radon levels to residents. This type of disclosure legislation would essentially call for radon testing at some point before transfer of any rental property. At the federal level, Congress could make testing rental properties a requirement for obtaining a "federally related" mortgage loan or for lenders' participation in the secondary market through federally established secondary mortgage institutions.43 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 before the sale of rental property presents an opportunity for negotiating the costs of mitigation and testing between buyer and seller. If accompanied by a requirement that test results be reported on a confidential basis 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.

A mandatory radon testing and disclosure scheme would aim to promote mitigation in rental properties with high radon levels. There are also considerable policy justifications for making mitigation of high levels mandatory in such properties, rather than relying on market forces to trigger remediation. Foremost among these is the fact that the individuals whose health and well-being is at stake—those residing in the building—are not party to the real-estate transaction and cannot choose to negotiate the terms of radon testing and mitigation. State legislatures could go a step further in ensuring acceptable radon levels in rental properties by requiring mitigation where testing reveals high radon levels. Radon 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.44

This approach takes advantage of the real-estate transaction to ensure that occupants of rental housing will not be exposed to high radon levels. The seller would be responsible for the cost of mitigation under this approach, 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 [26 ELR 10471] that are not for sale or being transferred.45 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-cost rental units. As noted below, financial subsidies targeted to affordable rental housing are an important component of any public policy requiring mitigation during the transfer of such properties.

Radon Disclosure, Testing, and Mitigation in the Landlord-Tenant Relationship

Landlord-tenant law enacted at the state and local levels provides another arena for implementing policies 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.

Background. 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. Since the 1970s, most states either have recognized an implied warranty of habitability in rental housing, or have adopted statutes providing for a landlord's duty to repair premises.46 In addition, state and local governments have developed housing codes that set forth the minimum standards for residential rental units. These developments in the law regarding the condition of rental housing units have brought about corresponding new remedies, both public and private, for addressing substandard conditions.

Many states have a judicially created implied warranty of habitability in rental housing,47 and some have enacted statutes codifying this warranty.48 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. 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 most common remedy afforded tenants is rent abatement, though some courts have awarded consequential and incidental damages resulting from the defective conditions.49 An important limitation on seeking relief is that the tenant must generally notify the landlord of the defective condition and allow a reasonable amount of time for the landlord to make repairs.50

In addition to or instead of recognizing a warranty of habitability, many states have statutorily established a landlord's duty to maintain residential units.51 Such statutes usually establish a general duty, corresponding to the duty that a warranty of habitability imposes, to maintain premises in a fit condition.52 Some statutes include examples of particular conditions that constitute violations of the duty.53 The remedies provided under such laws generally parallel those available for violations of the warranty of habitability.54

For years, housing maintenance codes have been a principal means of prescribing minimum standards for residential rental units.55 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 owner responsible for maintaining the property, and prohibit the leasing of rental units 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 states provide tenants with legal remedies for code violations, either as part of the housing code or under a separate statute.56

Families living in rental housing that is owned or subsidized by the government may have additional grounds for asserting that the property owner is responsible for addressing radon. Such housing must comply not only with state statutory and common-law requirements, but also any standards contained in the regulations governing [26 ELR 10472] the particular subsidy program.57 Because these programs are numerous and varied, their analysis is beyond the scope of this Dialogue.

Radon and the Duty to Maintain Premises. At least one state has enacted a law requiring that tenants be given a brief statement about radon before the execution of a rental agreement for any building.58 Currently, however, no federal or state laws address directly the responsibility of landlords to test for or reduce high radon levels in their properties.59 Thus, absent legislative action, the most likely framework for identifying a legal duty on the part of landlords to fix radon problems is an existing warranty of habitability or an existing statute requiring landlords to repair unsafe and dangerous conditions generally.60

Although no reported cases address radon in the context of the warranty of habitability, the doctrine is potentially applicable to the problem of radon. 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. The federal government has identified radon as a carcinogen, 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. Other indoor environmental hazards such as lead-based paint are analogous to radon. 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 habitability to repair the condition.61

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 that exposure to high indoor radon levels poses has only recently received widespread attention. In contrast, lead-based paint is prohibited in residential rental dwellings in a number of states. Because there has been some question about the precise nature of radon's threat, and the radon level at which action should be taken, courts may be reluctant to find that radon mitigation falls within the landlord's 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.62 In addition, individual states may restrict the warranty of habitability in ways that make it more difficult for tenants to pursue a radon claim.63

Despite these difficulties, the considerable evidence of health hazards associated with radon exposure provides tenants with a straightforward argument that landlords should be required to mitigate high radon levels pursuant to an existing duty to repair.64 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.

Legislative Strategies for Implementing a Duty to Mitigate High Radon Levels. Mandatory disclosure of radon information can be an important component of a strategy to reduce high radon levels in rental housing. Disclosure of general information about radon may lead some residents to test for radon or to request the owner to perform testing. Disclosure of actual radon levels is more likely to result in tenant and owner action to address high radon levels. Nevertheless, the consequences of disclosure depend on a range of related factors, including the tenant's level of awareness of the risks from radon exposure, as well as her opportunities for pursuing radon reduction or for obtaining alternate housing. In addition, a radon-disclosure requirement could lead landlords to claim that a tenant has assumed the risk of the radon hazard in a rental unit.

In order to most effectively promote mitigation of high radon levels in rental housing, specific disclosure requirements should be carefully crafted and combined with clear legal requirements for mitigating high radon levels. New [26 ELR 10473] laws could be enacted, or existing duty-to-repair laws or housing codes could be amended to add radon-related requirements. For example, a state statute generally obligating a landlord to repair unsafe and unhealthy conditions could be amended to include high radon levels as one of the explicit conditions giving rise to the landlord's duty.65 Any existing remedies, such as rent escrow and rent abatement, would be applicable. Similarly, if a state or local law requires a license or certificate of occupancy to operate a rental property, the law could be amended to require demonstration of acceptable radon levels prior to obtaining a license.

Similarly, housing codes potentially are appropriate vehicles for establishing radon requirements. Many existing codes prohibit public nuisances, which may be broadly defined to include "unsafe, dangerous or unhealthful" conditions.66 A number of codes also prohibit the presence of other environmental hazards such as lead in paint,67 and many regulate such "naturally occurring" elements as wind and rain, through requirements for weathertightness.68 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.

The enactment of a new law dealing with radon alone could 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 have high radon potential, 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. Alternatively, the legislation could establish a timetable for compliance with radon testing and mitigation requirements, starting with buildings located in areas with high radon potential. A new radon law could also require that test results be provided to state and local radon agencies as well as to tenants. This would 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.

Enforcement is an important component of any legislative strategy to promote radon testing and mitigation, particularly in light of the historical difficulty in enforcing housing maintenance requirements. Housing code officials generally have lacked sufficient resources to carry 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, or because they fear their leases may be terminated for asserting their legal rights. In addition, requirements for radon testing and mitigation may affect the availability of affordable housing; thus, the use of financial subsidies targeted to housing for limited-income families should be considered in tandem with the implementation of legal requirements.

Building Codes Applicable to Rental Housing Construction

Buildings can be constructed in ways that minimize radon entry. Incorporating radon-resistant techniques into the construction of new residential rental properties can help prevent the problem of exposure to high radon levels. EPA has found that in single-family homes, these techniques are more cost effective than mitigating high radon levels following construction, and can also result in savings on the cost of heating and cooling a building.69

Background. Most jurisdictions in the United States have adopted some form of statewide or local building code that applies to residential construction. Four major model code organizations publish model codes that can be adopted or modified by state and local jurisdictions.70 Codes provide minimum standards for protecting health and safety, and may include requirements relating to fire prevention, plumbing, mechanical systems, and general building construction.

EPA has published standards for radon-resistant construction to guide state and local jurisdictions in incorporating radon-resistant new construction requirements into building codes. EPA's "Model Standards and Techniques for Control of Radon in New Buildings" contains specific techniques for use in all new one- and two-family homes in geographic areas of high radon potential.71 The American Society for Testing and Materials also has developed a "Standard Guide" containing techniques for radon-resistant construction.72 EPA estimates that one million homes have been built using such techniques since 1988.73

Several jurisdictions have incorporated requirements for radon-resistant construction into their building codes. The state of Washington, for example, has adopted a ventilation and indoor air quality code that requires use of radon-resistant construction techniques in new residential construction.74 [26 ELR 10474] 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.75

Strategies for Promoting Radon-Resistant Construction in New Residential Rental Buildings. Past and current efforts to incorporate radon-resistant construction techniques into building codes 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."76 While existing efforts in the area of new construction can help reduce radon risks in one- and two-family rental homes and small rental buildings, these efforts can be expanded to include radon-resistant techniques that are applicable to larger multistory structures.

Further development and communication of technical guidance in this area would facilitate use of radon-resistant construction features. 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, or establish performance standards requiring that the radon levels in newly constructed buildings be below a stated level.

Instead of making requirements for radon-resistant construction techniques or performance standards apply universally, the requirements could be limited to areas with high radon potential; such "hot spots" could be identified using EPA's county-level radon potential maps 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-resistant construction techniques in high-risk areas only. New Jersey also ties radon-resistant construction requirements to high-risk areas within 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.

Programs Addressing the Cost of Radon Mitigation in Rental Housing

Radon laws that require testing, mitigation, or radon-resistant construction in rental properties may be inadequate, standing alone, to address high radon levels in housing that is affordable to limited-income families. Mitigation of high radon levels may lead to rent increases. Some properties could not provide sufficient rental income to support the costs of radon mitigation. In addition, the added costs of radon-resistant construction may pose an obstacle to financing new affordable housing construction.

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 limited-income housing in the community. 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 making radon reduction in rental housing 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. 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 be fees, such as those charged by many states in connection with the 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 costs of new radon initiatives might be minimized by combining those initiatives with other programs that address indoor air issues in rental housing.

The initiatives described below are institutional measures that require both political will 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 therefore can complement community-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.77

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 kits, and have worked with local retailers and local nonprofit organizations to distribute kits. New York enacted a law to provide financial assistance "for the performance of radon diagnostic services and the preparation of specifications for appropriate, energy-efficient mitigation measures for one to four family residences."78

[26 ELR 109475]

State and local governments have less experience in implementing programs to provide financial assistance for radon mitigation where testing reveals high levels. Federal and state legislatures can consider creating new programs, or drawing on existing funding programs, to help owners of affordable rental housing properties finance radon reduction.

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 housing to test for and mitigate high radon levels.79 This assistance would be based on financial need, 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. Under the Residential Lead-Based Paint Hazard Reduction Act of 1992, commonly referred to as Title X, HUD provides grants to state and local governments for evaluation and reduction of lead-based paint hazards in private housing. Grantees can use the funds in a variety of ways, including the award of grants, loans, loan guarantees, and interest write-downs.80

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 having high radon risk potential, or that have otherwise documented the existence of high radon levels in rental housing. Legislation could spell 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.

Creation of a State Radon Assistance Program. States could establish grant programs in much the same manner as the federal government. In addition to grants, state agencies could provide loans for radon testing and mitigation with interest 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.

In 1995, Maryland enacted a pilot radon-abatement program within the state's housing rehabilitation project. Under the pilot initiative, the state Department of Housing and Community Development is to make loans for radon mitigation in housing for limited-income families. The loans will be funded through state appropriations.

EPA's State Indoor Radon Grants (SIRG) program provides a potential vehicle for funding a state mitigation program. The current federal radon law authorizes EPA to fund demonstration mitigation projects, and directs that limited-income households should be involved in such projects.81 Connecticut's health and housing agencies recently completed a demonstration project using federal SIRG funding to make radon mitigation grants available to limited-income renters and homeowners.82 Since the SIRG program covers demonstration projects only, 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.

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.

One widely used federal program—HUD's Community Development Block Grant (CDBG)—is potentially applicable to addressing radon in rental housing. The program funds state and local governments, which in turn allocate resources to local agencies. Among the activities for which local agencies may use CDBG funds are housing code enforcement and rehabilitation of residential housing, provided that 75 percent of such activities involve limited-income housing.83 CDBG recipients could consider making radon mitigation an explicit priority area, as part of the recipient's general program for rehabilitation of affordable housing. 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 to provide additional funding for those activities. To target limited resources, HUD could consider high radon potential areas as a priority for this funding.

Other types of HUD programs, such as the HOME Investment Partnership Program, might also be used to address radon. The HOME program makes grants available to states, large cities, and urban counties to subsidize the development of housing for people with low or very low incomes, including rehabilitation or site improvements.84 In addition, federal agencies such as HUD, the Department of Veterans Affairs, and the Department of Agriculture have housing programs that could incorporate radon testing and 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 [26 ELR 10476] of Labor) might also be appropriate vehicles for funding radon testing and mitigation.

States might similarly expand existing programs in 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 and energy conservation in rental and owner-occupied housing. Often the owner and/or tenants must be income-eligible. When existing programs are structured to exclude activities like radon mitigation, states might consider legislative changes to explicitly include radon testing and mitigation as permissible uses of such assistance.

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 has enacted legislation providing a tax credit for lead-based paint abatement. In the radon context, legislation could allow owners of rental housing for those with limited incomes 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 either is state-approved or has participatedin EPA's proficiency program.

A tax credit or tax deduction might also be provided to radon professionals who make radon-related services available to limited-income families in 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.

Direct Assistance

In addition to providing financial assistance for radon mitigation, states could establish programs to provide testing and 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 explicitly allows states to use SIRG funds to purchase radon-measurement devices. Numerous state and local radon programs have subsidized the cost of radon test kits and have worked with community organizations and local retailers to make these kits available to the public. States can ensure that such radon testing initiatives extend to rental housing as well as owner-occupied homes.

States can also give greater consideration to providing mitigation services where testing reveals high radon levels. One potential model for such a direct assistance scheme is the federal Weatherization Assistance Program (WAP), which provides weatherization services to limited-income households in both rental and owner-occupied properties.85 States receive WAP funding through the U.S. Department of Energy (DOE), and in turn fund local community-based organizations and agencies to provide weatherization services. 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 …."86

A radon program could be similarly structured to provide direct mitigation services in rental buildings. Alternatively, states could consider expanding the work of existing weatherization providers to include radon testing and mitigation services. Under an expanded program, WAP subgrantees would do radon testing in homes that are selected for weatherization services; if high radon levels were found, the subgrantees would provide mitigation measures in addition to weatherization services. WAP subgrantees have experience managing the type of work that would be undertaken in performing radon mitigation. In addition, weatherization offices work with limited-income families and might be able to provide effective outreach to limited-income communities for carrying out radon-related services.

The current weatherization law itself envisions the possibility of the program addressing problems that are not related to energy.87 DOE regulations allow funds to be used to address health and safety hazards relating to weatherization and requires grantees to implement procedures governing how subgrantees may address health and safety issues.88 A DOE guidance document describing some of the health and safety hazards that may be considered encourages procedures that would allow for radon testing where radon potential is high.89

Although the weatherization program appears to provide a potential institutional framework for developing a radon-mitigation program, the program has been affected significantly by recent federal budget cuts. Thus, coordinating weatherization services with radon testing and mitigation would likely require supplemental funding. Some states have experimented with using SIRG grants to fund weatherization offices to carry out radon mitigation. The state of New York completed such a demonstration project and concluded that it is both feasible and appropriate to use weatherization program offices to perform radon mitigation [26 ELR 10477] for limited-income households.90 In addition, EPA's Regional Office in Philadelphia is studying a low-cost mitigation technique that may be effective in reducing radon levels in certain types of homes that have underground weatherization. Because the technique would require only minimal funds, it potentially could be incorporated into the routine weatherization work that WAP grantees perform.91

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 likely have to be 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 the DOE on information and technical assistance necessary to most effectively incorporate a radon risk-reduction component in the weatherization program.

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 significant 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.

Responding to these considerations, Wyoming's state radon program created a project to train and assist owners interested in mitigating their property by reducing radon entry from soil.92 Together with a private firm, the radon program developed a seminar on mitigation techniques that emphasized occupational safety issues and was designed to alert participants to the range of potential situations that might be encountered while performing radon mitigation. A workbook developed in conjunction with the project describes those mitigation situations that should be handled by a professional contractor rather than a property owner.93

Any state or local training programs designed to facilitate self-help mitigation should be limited to single-family homes, since mitigation techniques are not well established for large buildings. A critical component of such a program is guidance for addressing potential health and safety issues such as exposure to asbestos, formaldehyde, and other hazards during mitigation. Also important is an emphasis on retesting the property following mitigation to ensure that radon levels have been lowered. A training program could encourage owners to work with professional radon testers or diagnosticians in carrying out the mitigation.

In addition to developing an adequate training program, a state agency seeking to promote more effective self-help mitigation in affordable housing might consider establishing a program with local retailers to facilitate and/or subsidize the purchase of appropriate materials for radon reduction, or 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.

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 a long period of time face an increased risk of developing cancer. The federal government has determined that radon is the second leading cause of 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 homeowners represent the largest group that is potentially at risk from residential exposure to radon, tenants across the country also are being exposed to radon at levels that exceed the federal government's recommended "action level." This facet of the problem presents a more complex challenge for policymakers who seek to design effective radon risk-reduction strategies.

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 limited-income families. Education can, however, 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. It remains to be seen, however, 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. Policymakers can take action by developing legislation to address radon in new and existing rental properties. For new rental construction, legislation could require use of radon-resistant construction techniques in at least those areas designated as having high radon potential. EPA and model-code organizations could work to develop standard techniques that apply to buildings greater than three stories. For existing rental housing, legislation could require owners to ensure that rental units contain acceptable radon levels. This can be done by requiring testing and mitigation either by the owner/purchaser during the real-estate transaction, or by the landlord in the context of the landlord-tenant relationship.

[26 ELR 10478]

Although legal requirements may result in radon testing and mitigation in a portion of the rental housing market, additional measures are necessary to preserve affordable housing for limited-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.

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.

In addition to the legal and policy tools described in this Dialogue, there are numerous steps that can be encouraged in the private sector: adjustment of real-estate appraisal guidelines; charitable contributions through private foundations and other organizations; and development of a local "pro-bono" program matching radon professionals with limited-income families exposed to high radon levels.

Regardless of the mechanisms chosen, concerted efforts are required 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 well 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.

1. An estimated 73 percent of the population claims to be aware of radon, although radon awareness appears to vary considerably by income and race. CONFERENCE OF RADIATION CONTROL PROGRAM DIRECTORS, CRCPD RADON RISK COMMUNICATION AND RESULTS STUDY (1994).

2. U.S. BUREAU OF THE CENSUS, HOUSING IN AMERICA 2 (1992).

3. One-third of all rental housing units (or over 10 million units) are single-family homes. Id. Another Census Bureau report found that of the approximately 21 million apartments in multi-unit buildings, over 10 million are located in buildings with one or two floors, while an additional 6 million are located in buildings with three floors. U.S. BUREAU OF THE CENSUS, AMERICAN HOUSING SURVEY NATIONAL REPORT, chart 4-2 (1993).

4. See Jonathan M. Samet, Radon and Lung Cancer, 81 J. NAT'L CANCER INST. 745-57 (1989). As it decays, radon emits radioactive products, known as "radon progeny" or "radon daughters" that can cause mutations in cells and tissues. Id.

5. U.S. EPA, THE TECHNICAL SUPPORT DOCUMENT FOR THE 1992 CITIZENS GUIDE TO RADON (1992). See also Margo T. Oge, Testimony Before the House Subcommittee on Health and the Environment, Committee on Energy and Commerce (Mar. 18, 1993) [hereinafter Oge testimony]; Memorandum from Margo T. Oge, U.S. EPA, on Current ORP Estimates of Annual Radon-Induced Lung Cancer Deaths in the General Population (Aug. 17, 1989). People who smoke and are exposed to radon are believed to be at even greater risk. Id.

6. Geoffrey G. Eichholz, Human Exposure, in ENVIRONMENTAL RADON 160 (C. Richard Cothern & James E. Smith Jr. eds., 1987).

7. GENERAL ACCOUNTING OFFICE, AIR POLLUTION: HAZARDS OF INDOOR RADON COULD POSE A NATIONAL HEALTH PROBLEM 11 (1986).

8. U.S. EPA, A CITIZEN'S GUIDE TO RADON 7 (1992). EPA's action level is based on the National Academy of Sciences (BEIR VI Committee) risk-assessment model, which in turn is derived from data involving underground miners. According to a noted scientist, "there is strong epidemiologic evidence of the link between radon exposure and lung cancer in the studies of underground miners at exposures only one or two orders of magnitude greater than typical lifetime exposure from indoor radon." Jonathan M. Samet, Indoor Radon and Lung Cancer: Risky or Not?, 86 J. NAT'L CANCER INST. 1813 (1994). Several residential epidemiologic studies have produced inconsistent results, and it appears unlikely that any individual residential study will form an adequate basis for assessing radon risk, due to methodological issues such as size of the studies. The pooling of these individual studies in the future may help refine the conclusions about radon exposure. See id.; Jay H. Lubin, Invited Commentary: Lung Cancer and Exposure to Residential Radon, 140 AM. J. EPIDEMIOLOGY 323-32 (1994). EPA's action level based on occupational miner data is supported by federal health authorities including the Centers for Disease Control and the Surgeon General, as well as nongovernmental organizations such as the American Lung Association and the American Medical Association.

9. Oge testimony, supra note 5.

10. 58 Fed. Reg. 19097, 19099 (Apr. 12, 1993). Areas with greatest potential for high radon levels are designated as Zone 1, while those with the least potential are designated as Zone 3.

11. Oge testimony, supra note 5.

12. 15 U.S.C. §§ 2661-2671, ELR STAT. TSCA §§ 2-412.

13. See, e.g., U.S. EPA, supra note 8. These twin purposes are also apparent in EPA-sponsored media campaigns and in the Agency's work with organizations such as the American Lung Association and the American Public Health Association.

14. U.S. EPA, supra note 8.

15. 59 Fed. Reg. 13402 (Mar. 21, 1994).

16. 15 U.S.C. § 2666, ELR STAT. TSCA § 306.

17. Many of these laws were passed in 1992-1993 legislative sessions. See, e.g., 1993 MD. LAWS 640; 1993 MISS. LAWS 407; 1993 Montana H.B. 585; OHIO REV. CODE ANN. § 5302.30 (Baldwin 1994); S.D. CODIFIED LAWS § 43-4-44 (1993); 1993 TEX. GEN. LAWS 356; VA. CODE ANN. § 55-519 (Michie 1993).

18. See, e.g., CONN. GEN. STAT. § 20-42 (1993); FLA. STAT. ch. 404.056(5) (1993); KY. REV. STAT. ANN. § 211.856 (Baldwin 1995); W. VA. CODE § 16-34-1 et seq. (1995).

19. See, e.g., WASH. ADMIN. CODE § 51-13 (1995); N.J. ADMIN. CODE tit. 5, § 23-10.1 to -10.4 (Supp. 1995); Montgomery County, Md., Executive Regulation 17-90AM (Nov. 22, 1990) (superseded by Executive Regulation 20-94 (Jan. 31, 1995).

20. U.S. BUREAU OF THE CENSUS, 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.

21. U.S. EPA, RADON MEASUREMENT IN HUD MULTI-FAMILY BUILDINGS (Draft 1995).

22. This Dialogue addresses liability claims against landlords only. In other contexts, notably with respect to 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 brought 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 Dialogue 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 P.2d 41 (Idaho 1984)(builder who failed to construct a handrail for stairway owed duty of care to tenant). Generally, though, tenants' cases involving structural defects have been against landlords, based on the landlord's general duty to maintain the premises free of defects.

23. Jean C. Love, Landlord's Liability for Defective Premises: Caveat Lessee, Negligence or Strict Liability? 19 WIS. L. REV. 19, 48-49 (1975).

24. See, e.g., Hebert v. Green County Housing Auth., 558 So. 2d 926 (Ala. 1990); Dapkunas v. Cagle, 356 N.E.2d 575 (Ill. App. Ct. 1975); Maxwell v. Davco Corp., 776 S.W.2d 528 (Tenn. Ct. App. 1989).

25. See Robert Roy, Annotation, Landlord Negligence—Services, 63 A.L.R. 4th 883, § 2(a). See also Gardenvillage Realty Corp. v. Russo, 366 A.2d 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." Olin L. Browder, The Taming of a Duty—The Tort Liability of Landlords, 81 MICH. L. REV. 99, 131 (1982).

26. In the 1970s, courts began establishing an "implied warranty of habitability" that found that landlords were responsible for maintaining rental premises in habitable and safe condition. This is discussed further below.

27. See Ford v. Ja-Sin, 420 A.2d 184 (Del. Super. Ct. 1980); Shroades v. Rental Homes, Inc., 427 N.E.2d 774 (Ohio 1981).

28. McCoy v. Coral Hills Assocs., 264 A.2d 896 (D.C. 1970); Bennet M. Lifter, Inc. v. Varnado, 480 So. 2d 1336 (Fla. Dist. Ct. App. 1985); Williams v. Foutes, 417 N.E.2d 963 (Mass. 1981).

29. See, e.g., Mansur v. Eubanks, 401 So. 2d 1328 (Fla. 1981); Jackson v. Wood, 726 P.2d 796 (Kan. Ct. App. 1986); Norwood v. Lazarus, 634 S.W.2d 584 (Mo. Ct. App. 1982); Shroades v. Rental Homes, Inc., 427 N.E.2d 774, (Ohio 1981); Pagelsdorf v. Safeco Ins. Co., 284 N.W.2d 55 (Wis. 1979).

30. RESTATEMENT (SECOND) OF PROPERTY § 17.6 (1977).

31. Two cases have addressed liability for radon in the (nonrental) residential context. Brafford v. Susquehanna Corp., 586 F. Supp. 14 (D. Colo. 1984), involved a family that moved into a house located on the site of a former uranium milling facility. The family sued 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 claim for damages for chromosomal changes resulting from the radon exposure, as well as for the increased risk of future cancer.

In Wayne v. Tennessee Valley Auth., 730 F.2d 392 (5th Cir. 1984), homeowners sued the producer of the phosphate slag used in 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 their claim for damages resulting from high radon levels in the building materials, since at the time the blocks were sold, radon gas was not identified as a potential health concern in phosphate products.

32. See, e.g., Norwood v. Lazarus, 634 S.W.2d 584 (Mo. Ct. App. 1982) (landlord was negligent when he knew there was flaking lead-based paint in hallway and that a child played in that area); Acosta v. Irdank Realty Corp., 238 N.Y.S.2d 713 (N.Y. 1963) (landlord was 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 Ct. App. 1989) (fact that landlord was aware of peeling, cracked paint does not mean landlord knew of existence of lead-based paint hazard).

33. See, e.g., Hardy v. Griffin, 569 A.2d 49 (Conn. Super. Ct. 1989) (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); Bencosme v. Kokaras, 507 N.E.2d 748 (Mass. 1987) (landlord strictly liable for lead poisoning based on state-law prohibition).

34. Meyer v. Parkin, 350 N.W.2d 435 (Minn. Ct. App. 1984); see also Bills v. Willow Run I Apartments, 534 N.W.2d 286 (Minn. Ct. App. 1995).

35. See Frank B. Cross & Paula C. Murray, Liability for Toxic Radon Gas in Residential Home Sales, 66 N.C. L. REV. 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 percent probability of developing cancer; typical risk from exposure to high indoor radon levels may be only about 1 percent. Id. at 726-27, 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 v. Susquehanna Corp., 586 F. Supp. 14 (D. Colo. 1984).

36. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30 (5th ed. 1984).

37. See, e.g., Pennsylvania H.B. 849 (1995); New Jersey S.B. 1299 (1992); Vermont H.B. 798 (1994).

38. See, e.g., FLA. STAT. ch. 91-04 § 404.056(8) (1993); 1993 Montana H.B. 585.

39. See supra note 18. 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. N.J. STAT. ANN. § 26: 2D-73 (West 1996).

40. See, e.g., Schnell v. Gustafson, 638 P.2d 850 (Colo. App. 1981) (vendor of real estate has a duty to disclose to purchaser a known latent defect); Foust v. Valleybrook Realty Co., 446 N.E.2d 1122 (Ohio App. 1981) (vendor has duty to disclose any material defects that are not visible).

41. 42 U.S.C. §§ 4851-4856.

42. S. 657, 103d Cong., 1st Sess. (1993), H.R. 2448, 103d Cong., 1st Sess. (1993).

43. See Paul A. Locke, Promoting Radon Testing, Disclosure, and Remediation: Protecting Public Health Through the Home Mortgage Market, 20 ELR 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 million in real-estate loans per year. Id. at 10480, citing 12 U.S.C. § 2602(1).

44. Locke, supra note 43.

45. Id. at 10482.

46. Alabama, Arkansas, Colorado, and Wyoming neither recognize an implied warranty of habitability nor have statutory provisions requiring landlords generally to maintain rental premises. See Barbara Jo Smith, Tenants in Search of Parity With Consumers Creating a Reasonable Expectations Warranty, 72 WASH. U. L.Q. 475, 482-87 (1994).

47. See, e.g., Green v. Superior Court, 517 P.2d 1168 (Cal. 1974); Boston Housing Auth. v. Hemingway, 293 N.E.2d 831 (Mass. 1973). See generally Browder, supra note 25, at 11 n.50.

48. See, e.g., N.Y. REAL PROP. LAW § 235-b (McKinney 1989); MINN. STAT. § 504.18 (1992).

49. See, e.g., Love v. Amsler, 441 N.W.2d 555 (Minn. Ct. App. 1989); Miller v. C.W. Myers Trading Post, Inc., 355 S.E.2d 189 (N.C. Ct. App. 1987). See also Roeder v. Nolan, 321 N.W.2d 1 (Iowa 1982) (incidental and consequential damages may be awarded); In re Clark, 96 B.R. 569 (Bankr. E.D. Pa. 1989) (recovery allowed for expenses necessitated by defective conditions); Teller v. McCoy, 253 S.E.2d 114 (W. Va. 1978) (damages for annoyance and inconvenience may be awarded). See generally Deborah T. Landis, Annotation, Measure of Damages for Landlord's Breach of Implied Warranty of Habitability, 1 A.L.R. 4th 1182 (1980).

50. See, e.g., Drew v. Pullen, 412 A.2d 1331 (N.J. Super. Ct. App. Div. 1980).

51. See, e.g., FLA. STAT. ANN. § 83.51 (West 1993); MD. CODE ANN. REAL PROP. § 8-211 (1996); OHIO REV. CODE ANN. § 5321.04 (Baldwin 1994).

52. See UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT § 2.104(a), 7b U.L.A. 70 (Supp. 1996); RESTATEMENT (SECOND) OF PROPERTY § 5.5 (1977).

53. 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. CODE ANN. REAP PROP. § 8-211(e) (1996).

54. See, e.g., KY. REV. STAT. ANN. § 383.625 (Baldwin 1995); MD. CODE ANN. REAL PROP. § 8-211 (1996); NEB. REV. STAT. § 76-1425 (1990); OHIO REV. CODE ANN. § 5321.07 (Baldwin 1994).

55. The Housing Act of 1954 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. 42 U.S.C. § 1451(c). In the 10 years after this law was passed, over 650 cities adopted housing codes. See Enforcement of Housing Codes, 78 HARV. L. REV.801, 803 (1965).

56. See, e.g., MASS. GEN. L. ch. 111, §§ 127C, F, L (1996) (state sanitary code, providing rent escrow and repair and deduct remedies); OHIO REV. CODE ANN. § 5321.07 (Baldwin 1994) (statute providing rent escrow and injunctive relief generally).

57. The Stewart B. McKinney Homeless Assistance Amendments Act of 1988, Pub. L. No. 100-628, 102 Stat. 3283 (codified in scattered sections of 12, 15, and 42 U.S.C.) required HUD to work with EPA to reduce radon contamination. The Act also required 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…." Id. § 1091(a) (reprinted at 15 U.S.C. § 2661 note). To date, HUD has developed no such policy.

58. See FLA. STAT. ch. 91-04 § 404.056(8) (1988).

59. As noted above, at least one municipality has adopted an 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 N.J. Ordinance 89:31 (July 19, 1989). Legislation requiring owners of rental property to test and/or mitigate high radon levels has been proposed in some jurisdictions, including Rhode Island and the District of Columbia. See, e.g., Rhode Island House Bill 6316 (1995); District of Columbia Bill 8-163 (Feb. 17, 1989).

60. In the few jurisdictions that do not have a judicial or statutory warranty of habitability, an exception to the traditional rule of caveat emptor may apply with respect to high radon levels. The exception for defects in premises that are used in common by all tenants might be applicable, because radon enters through the common portions of a building and can be mitigated by making repairs to those common areas.

61. See, e.g., Norwood v. Lazarus, 634 S.W.2d 584 (Mo.Ct.App. 1982) (landlord also liable in tort, as resulting injury to child was foreseeable); Acosta v. Irdank Realty Corp., 238 N.Y.S.2d 713 (N.Y. Sup. Ct. 1963) (landlord also liable in tort for resulting injury to child, since ingestion of lead paint was foreseeable). See also Winston Properties v. Sanders, 565 N.E.2d 1280 (Ohio Ct. App. 1989). One court has suggested that the presence of formaldehyde in an apartment could be a violation of a statutory implied warranty of habitability. Meyer v. Parkin, 350 N.W.2d 435 (Minn. Ct. App. 1984) (rejecting claim for personal injury damages).

62. 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 U.S.C. §§ 9601-9675, ELR STAT. CERCLA (creating Superfund liability scheme holding parties jointly, severally, and strictly liable); Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1231-1243, ELR STAT. SMCRA (establishing a fee on coal producers to reclaim and restore land and water resources adversely affected by prior coal-mining operations).

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. The amount of radon entering a home depends on, among other things, the type of house construction and the condition of the home's foundation. GAO, AIR POLLUTION: HAZARDS OF INDOOR RADON COULD POSE A NATIONAL HEALTH PROBLEM 11 (1986). In those (more limited) cases where high radon levels result from building materials or the water supply, this characterization is potentially even more appropriate.

63. See Smith, supra note 46, at 475, 487.

64. A tenant might also be able to address high radon levels in water through a warranty of habitability or duty to repair claim. In Elderkin v. Gaster, 288 A.2d 771 (Pa. 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.

65. 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. CODE ANN. REAL PROP. § 8-211(e)(4) (1996).

66. MONTGOMERY COUNTY, MD., CODE §§ 26-1, 26-10(1) (1984); see also LOUISVILLE, KY., CODE OF ORDINANCES, ch. 150, §§ ES-201.0, ES-106.1.1 (1994) ("public nuisance" includes "any premises designated as unsafe for human habitation or use").

67. See, e.g., LOUISVILLE CODE OF ORDINANCES, supra note 66.

68. See, e.g., DENVER, COLO., HOUSING CODE § 27-21 (1996).

69. While the cost of radon mitigating in existing single-family homes ranges from $ 800 to $ 2,500, the Agency estimates that it will cost builders between $ 350 to $ 500 "per house" to install a "passive system" to reduce radon entry. The additional cost for installing an active system would be approximately $ 250, plus $ 40 to $ 75 annually to operate. 58 Fed. Reg. 19097, 19100 (Apr. 12, 1993). EPA estimates that energy savings may average $ 65 per house annually; however, it is not clear if the savings for multifamily housing would be comparable. U.S. EPA, Model Construction Standards: Building a Radon-Resistant Future (1993) (unpublished material on file with author).

70. These are the Council of American Building Officials (CABO), the Building Officials and Code Administrators International, the International Conference of Building Officials, and the Southern Building Code Congress International. 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.

71. 59 Fed. Reg. 13402 (Mar. 21, 1994).

72. AMERICAN SOCIETY FOR TESTING AND MATERIALS, STANDARD GUIDE E 1465-92 (1992).

73. Interviews with EPA officials (April 1996). See also NATIONAL ASSOCIATION OF HOME BUILDERS, 1995 NATIONAL ASSOCIATION OF HOME BUILDERS SURVEY FACT SHEET (1995).

74. WASH. ADMIN. CODE § 51-13-500 (1995).

75. 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. Montgomery County, Md., Executive Regulation 17-90, supra note 19. See also N.J. ADMIN. CODE tit. 5, § 23-10.1 to -10.4 (Supp. 1995).

76. Based on "limited experience" with larger buildings, the Agency speculates 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, 19102 (Apr. 12, 1994).

77. Some 4.9 million homeowners have household income below the poverty level. U.S. BUREAU OF THE CENSUS, supra note 2, at 28.

78. N.Y. ENERGY LAW § 5-107 (Consol. 1988). This program is financed through energy overcharge funds, rather than directly through state revenues.

79. 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, policymakers would create considerable controversy by adopting a different standard for rental housing than was recommended for owner-occupied residences and other buildings.

80. 42 U.S.C. § 4852.

81. 15 U.S.C. §§ 2665-2666.

82. Telephone Interviews with Connecticut Department of Health Services officials (Aug. 1993 and Mar. 1996).

83. 42 U.S.C. §§ 5301-5321.

84. See 24 C.F.R. § 92.205 (1995).

85. 42 U.S.C. §§ 6861-6873.

86. Id. § 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 DOE recently promulgated regulations implementing the statutory provision. 58 Fed. Reg. 12528 (Mar. 4, 1993); 10 C.F.R. § 440.22(b)(3) (1995). Although the limitation on rent increases directly addresses the issue of preserving and enhancing affordable housing, the measure has been criticized as being too vague to implement effectively. See, e.g., NATIONAL CONSUMER LAW CENTER, PROTECTION OF RENTERS IN THE WEATHERIZATION OF LOW-INCOME HOUSING (1987).

87. The law was amended in 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." H.R. REP. NO. 646, 101st Cong. (1990), reprinted in 1990 U.S.C.C.A.N. 1659.

88. 10 C.F.R. § 440.16(h), § 440.18(c)(15) (1995).

89. DOE, WEATHERIZATION PROGRAM NOTICE 93-13 (1993). The guidance would limit the use of weatherization funds for mitigation to circumstances where "an energy audit indicated weatherization techniques that help in abatement." Id. at 6-7.

90. Telephone Interview with New York Department of State official (July 1, 1993).

91. Telephone Interview with William Ballenger, U.S. EPA (Apr. 1996).

92. The information on Wyoming's program is based on telephone conversations with Wyoming Department of Health Officals (June 1993 and Apr. 1996).

93. COLORADO VINTAGE COMPANIES, INC., PROTECTING YOUR HOME FROM RADON: A STEP-BY-STEP MANUAL FOR RADON REDUCTION (1995).

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