Issue #53

August 25, 2001

Where Should a Pre-purchase Radon Test be Placed?

Please take the time to read this and understand the issue. It could save you from an expensive problem in the future.

I am continually bombarded with confusion about where a radon test should be placed, (mostly from Realtors or a client who has just talked with a Realtor) and there is disagreement among testers about the interpretation of proper EPA protocol. I understand that efforts are being made by a group of home inspectors and Realtors as part of the local Realtor Association to change the Radon Addendum being used locally with Offer to Purchase Contracts. This proposed change would reflect that the radon test should be conducted in the lowest heated area of a home. This is also the instructions I was given last week by Susan E. Pope, who is the Extension Radon Educator of NC State University North Carolina Cooperative Extension Service.

Because of this confusion and the need to take a position on the possible revision to the Radon Addendum, I have been doing some research on the issue. As part of that research I have contacted Mr. Philip P. Jalbert, who is the Environmental Protection/Real Estate Specialist with the Indoor Environments Division of the United States Environmental Protection Agency better know to all of us as the "EPA." Although, as far as I am concerned, the "EPA" is who calls this shot, I have also made contact with Dallas Jones of Radalink, Inc. who provides my electronic testing equipment and Zygmunt C. Gromadzki (how about that name) better known to all of us in the business as Zyg because we can't remember his real name. Zyg is Radon Testing Labs, Inc. of Raleigh who handles the lions portion of the canisters used for radon testing in North Carolina by home inspectors, including most of those who use canisters in this area. The results of my research and the position of those mentioned above run contrary to the position that the pre-purchase radon test should be placed in the "lowest heated area."   

What I've been able to determine is that the final judgment must be made by the "EPA" because certified testers, like me, are required to follow EPA protocol. I specifically addressed the issue of the proposed Radon Addendum revisions with Philip Jalbert of the EPA who responded in an e-mail on August 21, 2001. Here are his words:

As you know, the most salient points to stress with the Realtors about the addenda are these:

(1) Ultimately, it should be the buyer (in negotiation with the seller) that determines where to test, depending upon how they anticipate using the house, including an unheated basement. The form should provide a blank space for entering in the agreed upon location, to wit, "Buyer and seller agree the radon test be conducted in the _________________." Or something similar. The Realtors usually (and if prudent, should) have their Association attorney approve forms like this one. Stressing the potential liability in making a policy choice inconsistent with EPA policy that might later be challenged by a client should be enough to quash the attempt. Getting this issue on the table with reviewing attorney(s) would be a good idea.

(2) As you know, the July 2000 edition of the Home Buyer's Guide constitutes the "official," EPA position on this question. The most relevant pages are 2, 5, 6, 7, 8, 12, 23.

(3) As Dallas mentioned in his August 17th e-mail, there are many examples of where an unheated space could be occupied, especially in a mild climate like the Carolinas.

End of Philip's comments.

So, what is the official EPA protocol for conducting a Radon test as part of a Real Estate transaction? This protocol is clearly established in the EPA publication "Home Buyer's and Seller's Guide to Radon." Be aware that there is a new one published in July of 2000 and that the one most of us have seen and use is out of date. The following quotes are from the latest July 2000 edition:  

Page 2:  "This Guide recommends three short-term testing options for real estate transactions. EPA also recommends testing a home in the lowest level which is currently suitable for occupancy, since a buyer may choose to live in a lower area of the home than that used by the seller."

Page 5 addressing reasons a buyer should ask for a new test if one has already been done: "The buyer plans to live in a lower level of the house than was tested, such as a basement suitable for occupancy but not currently lived in."

Page 6: "You should test in the lowest level of the home which is suitable for occupancy. This means testing in the lowest level that you currently live in or a lower level not currently used, but which a buyer could use for living space without renovations."

Page 7 addressing questions a buyer should ask: "Where in the home the previous test was taken, especially if you may plan to live in a lower level of the home. For example, the test may have been taken on the first floor. However, if you want to use the basement as living space, test there;"

Page 8: "Make sure the test is done in the lowest level of the home suitable for occupancy. This means the lowest level that you are going to use as living space which is finished or does not require renovations prior to use." A state or local radon official or qualified radon tester can help you make some of these decisions."

Page 12 is a highlighted block titled "Radon Test Device Placement": "EPA recommends that testing devices(s) be placed in the lowest level of the home suitable for occupancy. This means testing in the lowest level (such as a basement), which a buyer could use for living space without renovations. The test should be conducted in a room to be used regularly (such as a family room, living room, playroom, den, or bedroom); do not test in a kitchen, bathroom, laundry room or hallway. Usually the buyer decides where to locate the radon test, based on their expected use of the home. A buyer and seller should explicitly discuss and agree on the test location to avoid any misunderstanding. Their decision should be clearly communicated to the person performing the test.

Page 23: "If you are planning any major renovations, such as converting an unfinished basement area into living space, it is especially important to test the area before you begin.

Does this make it clear? Not totally, because the words and phrases "suitable for occupancy," "living space," "renovations," "finished" are not clearly defined by the EPA.

Let me share with you comments by Dallas Jones of Radalink, Inc. sent to me in an e-mail on August 17th, 2001 which Philip mentions in his e-mail:

Consider a home with an unfinished basement - exposed joists overhead, bare concrete floor below your feet, exposed studs on the partition walls.

Case 1:  You place a rug on the floor, put a desk on top of the rug, put computer and telephone on top of the desk, and place a little space heater at your feet. You now have an office. The basement isn't "finished" - your spouse just spends 8 - 10 hours a day running a small business. You didn't have to renovate or finish the basement in order to occupy it.

Case 2: You place a rug on the floor, a big screen TV and video player in the corner, throw in a box of LEGOs, a Barbie playhouse and a couple of Big Wheels. The basement isn't "finished" - your kids just spend half of every day playing there. Again, you didn't have to renovate or finish the basement in order for them to occupy it.

I'm sure you can think of a least a half dozen other cases where an "unfinished" basement could easily be occupied without being renovated.

Obviously, a basement with an exposed earth floor, inadequate head clearance, or no access from the upper floor, would be considered an inappropriate place to test because it would need to be renovated in order to be occupied. But, in the cases above, it's easy to see how unfinished, "unconditioned" basements could easily be occupied without renovations.

End of Dallas's comments.

I think the whole issue is resolved on page 12 of the EPA guide with the simple words "should be conducted in a room to be used regularly."

Let me attempt to capsulize all of this into a simple statement:

The radon test should be conducted in the lowest level of the home in which the buyers family will spend time now or in the future, and the buyer in agreement with the seller should make the determination where that location is with the assistance of a qualified radon tester.

I can't speak for the buyer, but I can speak as a "qualified radon tester" and here is my opinion of where a radon test should be conducted to best meet the health concerns of the buyer and EPA protocol. First let me make my position very clear that the location of a Radon test has nothing to do with the North Carolina Building codes definition of "Occupied Space" or whether an area is heated. The most important issue is that you do not want to spend time where the radon concentrations exceed 4.0 pCi/L. You must determine if the Radon levels where your family will spend time is below this level. If you or your family will be spending time in the unfinished unheated basement playing, working in a shop, office or hobby area then that is where the test should be conducted period. If your only intention is to use the basement as a storage area or place to park your car then do the test somewhere else, but realize if the next buyer plans to use the basement area you may be paying for their mitigation system. Remember, the buyer calls the shot, not the Realtor.

As a Realtor, if you participate in any effort to attempt to control where a buyer selects to place the test, such as stating that it must be performed in the lowest heated area of the home, you are leaving yourself open to potential litigation which could be very damaging to your wallet. It's not your call, it's the buyers (in negotiation with the seller) and in conjunction with the advice of a qualified radon tester attempting to meet proper EPA protocol. This is the type issue which makes attorneys wealthy.  

As to a possible revision to the real estate contract addendum, here is my suggested verbiage which should be consistent with EPA protocol:

"Buyer and seller after review of the United States Environmental Protection Agency publication 'Home Buyers and Seller's Guide to Radon' and following consultation with ____________________ a qualified radon tester agree the radon test to be conducted in ____________________."

I firmly believe that to test, or encourage my pre-purchase home inspection client to test, in other than the unfinished basement would be detrimental to my client causing them and their family possible health harm from high radon levels and financial harm from having to bear the expense of installing a mitigation system to protect their family or the family of the next buyer. The only people who gain from failing to test in an unfinished basement is the seller who doesn't have to pay for the mitigation system and the Realtor who has a more comfortable transaction from a lower radon reading. My contract is with the buyer and my responsibility is to protect their interest and follow proper EPA protocol. My only responsibility to the seller and Realtor is to be fair and do a good job.

For those who need additional information consider the following:

In an EPA publication "Protecting Your Home From Radon" (2nd edition, 1997) the following statement is made in chapter 2 "Testing Your Home":

For example, you may live in a home with an unfinished basement. And, although you would not normally test this basement under none-real estate procedures, it will be tested under real estate procedures.

In a letter from Stephen D. Page Director, Radon Division of the EPA dated November 18, 1993 to Ms. Nancy Bredhoff, President Radon Testing Corporation of America:

As you know, the Environmental Protection Agency (EPA) published the Home Buyer's and Seller's Guide to Radon in March of 1993 in response to a need for guidance on how to address radon concerns during real estate transactions. The guide reflects input that EPA obtained from a wide variety of groups, including the radon industry, real estate officials, state radon officials, consumer organizations, and EPA's Science Advisory Agency (SAB). The input received from these groups enabled the Agency to develop radon testing guidance that is scientifically sound and responsive to wide variety of unique conditions that may occur in real estate transactions.

Your expressed concern about confusion regarding the recommendation that tests be conducted in the lowest level of he house that is "suitable for occupancy" without renovations. This recommendation is based on guidance provided by the SAB. It ensures that home buyers can obtain accurate measurements under the conditions in which they will actually use the house. Ultimately, buyers will determine what portions of a house are "suitable for occupancy" without renovations based on their own tastes and preferences. That is a major reason why page 7 of the Guide makes it clear that buyers should decide whether or not to accept the results of past radon tests.

Buyers may decide whether to occupy a particular part of a house based on a variety of factors. These factors may include the physical conditions in the lower part of the house and the buyer's present or future needs and desires. Another influencing factor is whether a buyer's or seller's market exists. Because it may not always be clear what portions of the house the buyer will occupy, testing contractors should consider having explicit discussions with the clients on this matter to avoid misunderstandings. These discussions can include considerations of where radon exposures are likely to occur, financial liability of potential mitigation's, and other negotiable items outlined on page 8 of the Guide.

(Note, the Guide referred to in the letter above and some of the ones below is an earlier addition)

In a letter from Stepahny DeScisciolo Chief, Mitigation, Prevention, and Quality Assurance Branch of the EPA dated December 21, 1993, portions of the letter were very similar to the letter above, but the pertinent points are:

Buyers may decide where to take a radon test during a real estate transfer based on two major factors. The first factor is what portions of the house they could or plan to occupy. The second factor is the potential use of the house by a future buyer and the finical liability for mitigation if elevated radon levels are found.

States have the latitude to provide additional or different guidance on testing during real estate transfers within their jurisdictions. The State of Pennsylvania, for example, has said that it considers a "basement," if any, to be the 'Lowest Livable Area' if it can be used as a living area without major structural change even if it has not been renovated into a 'finished' living space.

In a fax from Phil Jalbert of EPA to Steve Chambers dated November 2, 1993:

"The decision about where to conduct the test is best decided by the purchaser of the measurement service--in consultation with any other parties, as appropriate. In a real estate transfer, the buyer--whether or not they pay for the test--should decide where to test and get the sellers agreement. There is no one right answer--its a negotiable point."

In a fax for Philp Jalbert of EPA to Bob & Joe English of World Radon Control Systems dated May 20, 1999:

"Ultimately, it is the buyer who determines what part of the house is "suitable for occupancy"; in part based on their future intended use of their preferred test location (e.g., an unfinished basement)"

From Robert Perciasepe Assistant Administrator of the EPA to The Honorable Wayne T. Gilchrest Member, U. S. House of Representatives (date illegible):

Ultimately, buyers will determine what portions of a house are "suitable for occupancy" without renovations based on their own tastes and preferences. Buyers may decide whether to occupy a particular part of the house (e.g., an unfinished basement) based on a variety of factors. These factors may include the physical conditions in the lower part of the house and the buyer's present or future needs and desires.

Because radon testing is voluntary, it usually happens only if the buyer and seller agree. They should also discuss and agree to the test location. Unfortunately, the test location is often not explicitly discussed by the buyer and seller in advance of the measurement being made. Also, the buyer and the testing company often fail to discuss the question of where to locate the test. These omissions can give rise to problems. That is why the Guide, on page 8, recommends that the buyer and seller decide these issues in advance.

In a letter to Mr. John D. Connor from Philip Jalbert of EPA dated August 28, 1997:

... the buyer will determine the test location only if the seller agrees; test location is a negotiable item for the buyer and seller. The informed buyer will very likely consider the anticipated use of a basement space and the future cost of mitigation when making a decision about the test location.

In the case of a builder as seller with individual buyers for homes, the buyer might agree that the builder's unfinished basement is not suitable for occupancy and that the test should be conducted on the first floor.