CLEANING UP MOLD: LEGISLATION, STANDARDS AND MORE
Massachusetts Continuing Legal Education (MCLE)
November 17, 2004
David M. Governo
Cynthia J. Stephens
David Governo and Cindy Stephens are attorneys specializing in indoor air quality cases, including lead, mold, asbestos and chemical exposure. They gratefully acknowledge the assistance of Colleen Palmer and Joshua Rottner with this paper.
Reproduced with permission of MCLE.
How much mold is too much, how to clean it up, and who is competent to perform this work are basic questions with no clear answers. As mold continues to gain media and legal attention, the lack of a definitive set of comprehensive laws and standards is often blamed as contributing to the confusion. This paper will explore the latest federal and state laws regarding mold, the key mold “standards,” and the current guidelines for mold remediation.
Politicians have contributed to the wholesale confusion about mold and how to deal with it by proposing and enacting laws that disregard the fundamental scientific and medical issues pertaining to mold. Mold legislation has been driven by panic rather than facts. Educational seminars, such as MCLE’s “Mold Muddle” will encourage factual and rational approaches to the problems posed by mold.
II. LEGISLATIVE UPDATES
A. Federal Law
The proposed Melina Bill (US Toxic Mold Safety and Protection Act of 2003 - H.R. 1268) would require landlords and sellers to perform mold inspections and would subject offenders to punitive damages, attorneys’ fees and costs. The bill also directs: (1) the EPA to promulgate mold standards and disclosure regulations for housing, (2) HUD to enact mold inspection and construction standards for public housing, (3) the IRS to provide for a tax credit for mold remediation, (4) FEMA to form a toxic mold insurance pool, and (5) Medicaid to waive some of its requirements for non-insured mold medical expenses. It would also amend the National Cooperative Research and Production Act by requiring standards for building products that retard mold growth.
B. State Laws
There has been a flurry of legislative activity on the state level. More than twenty-six mold bills were considered by state legislatures in 2003. At least a dozen bills passed, several have failed, and others are still pending. The majority deal with the licensing of investigators and remediators, studies of health impacts, requirements for insurance and real estate transactions, and building code guidelines. For example, Florida legislators proposed three mold-related bills in 2003, yet none of them passed. Connecticut is considering laws that would regulate mold in schools. Oklahoma, Tennessee, Illinois and Rhode Island have created task forces to study mold.
In 2004, four bills relating to mold passed in Louisiana, Oklahoma, South Carolina and Virginia. Both Louisiana and South Carolina adopted statutes designed to limit lawsuits and liability. The Louisiana law makes commercial and marine contractors immune from liability for mold claims related to work performed on manufactured homes, and the South Carolina bill prevents suits from being brought against real estate agents who truthfully disclosed known material defects including mold and moisture conditions. Virginia’s statute also deals with real estate, requiring landlords to disclose information regarding visible mold to prospective tenants. Finally, Oklahoma continued on a theme prominent in many of the certification programs by preventing the same person or contractor from performing both the mold assessment and mold remediation services.
Massachusetts Senate Bill 657 would authorize a task force to study the health effects of indoor exposure to “toxic mold” and recommend methods to protect against exposure to mold, including permissible exposure limits. As of October 2004, the bill has been reported favorably by the Healthcare Committee and referred to the committee on Senate Ways and Means.
III. MOLD “STANDARDS”
A. “Guideline” v. “Standards”
To understand the manner in which mold can be regulated, it is crucial to understand the differences among guidelines, standards, regulations, and statutes. A guideline is a statement meant to give advice on to how to deal with a particular problem and is usually based upon an evaluation by a group of experts. It has no force of law, although a breach might be deemed “unreasonable” and could give rise to legal liability. A guideline that has been accepted by the majority of players in an industry can become an “industry standard.” The failure to follow an “industry standard” can be used to impose legal liability. A statute, whether state or federal, usually authorizes agencies to promulgate regulations (or codes such as a sanitary code or a building code) which describe exactly how to deal with a particular issue, including the penalties for failing to do so. Cities and towns can also enact regulations or codes that have the force of law within the particular municipality.
B. Some Key Mold “Standards”
One of the challenges for those attempting to establish mold “standards” is the complexity of the task and the varying levels of sophistication of the target audiences. Some documents, such as the New York City Health Department Guidelines, the EPA’s Mold Remediation for Schools and Commercial Buildings, and the Institute for Inspection, Cleaning and Restoration Certification (IICRC) S520 Standard, are comprehensive and are designed to provide guidance to both the premises owner and the remediator, while others, such as OSHA’s guidance document, focus on worker safety.
1. The New York City Department of Health Guidelines on Assessment and Remediation of Fungi in Indoor Environments
In 1993, the New York City Department of Health published guidelines on mold. They were updated in 2002, and have been the most widely used guidelines. They also serve as the basis for other reference guides. The New York City guidelines delineate five different levels of abatement, which vary primarily based on the size of the area impacted by the mold and its location. The guidelines distinguish between mold on walls and ceilings and mold in HVAC systems. In all situations, however, the guidelines emphasize the importance of correcting the underlying cause of water accumulation. After correcting the source of moisture, the goal is to remove or clean contaminated materials to prevent the dispersion of mold and contaminated dust from the work area, while protecting the health of workers performing the abatement.
2. U.S. Department of Labor Occupational Safety & Health Administration (OSHA)
OSHA’s mold guidance document mirrors New York City’s guidelines and includes the identification and correction of the conditions that permit mold growth. It describes how to remove mold damaged materials, and is designed to protect the health of cleanup personnel and other workers during remediation.
3. Environmental Protection Agency (EPA) “Mold Remediation in Schools and Commercial Buildings”
These 2001 mold guidance documents offer comprehensive information on mold remediation for schools and commercial buildings, including key steps for remediation, cleanup methods and personal protective equipment. They are designed to protect the health of cleanup personnel and, similar to the New York City guidelines, are based on the size of the area impacted by mold contamination.
4. Institute for Inspection, Cleaning and Restoration Certification (IICRC) “S520: Standard and Reference Guide for Mold Remediation”
In December 2003, the IICRC completed the first edition of its Standard and Reference document for the professional remediation of mold from indoor environments. The IICRC, which is a non-profit standard setting and certification registry, prepared the document with the goal of replacing and superceding all existing mold remediation standards and guidelines, including the New York City guidelines. The IICRC S520 Standard is characterized as a collection of industry “best practices” compiled by and for those in the mold remediation industry. S520 calls for a building moisture inspection to determine the extent of mold growth and requires that the source of moisture be eliminated prior to the mold clean-up, but does not set any specific levels for mold testing or health risks.
The most notable difference between S520 and other standards is in the categorization of mold contamination. Instead of relying on the square footage of mold growth to determine the severity of the problem, S520 examines the overall mold levels, location of increased mold growth, and the types of materials affected by mold growth. These assessments are divided into three categories called “Conditions,” which range from normal ecology to active mold growth.
The S520 Standards are also divided into three sections: (1) structural, (2) HVAC, and (3) contents remediation, and define and describe the above “Conditions,” the preparation of the work place, removal and disposal of the contaminated materials, cleaning methods, required equipment, and post remediation evaluation and testing. S520 requires the removal of materials contaminated with mold, and in most cases, advises against treatments such as biocides, encapsulants, and ozone or ultraviolet light as a substitute for removal.
5. American Industrial Hygiene Association (AIHA Guideline - 2004) “Assessment, Remediation, and Post-Remediation Verification of Mold in Buildings”
AIHA’s September 2004 guideline stresses the judgment of a “competent professional” in all assessment, remediation and post-remediation procedures. AIHA outlines the minimum qualifications that a person must possess to be termed a “competent professional” and discusses the merits and limitations of various sampling and remediation techniques. The guideline’s goal is to aid a competent professional in his or her decision making process throughout the assessment, remediation and verification phases of work. Other existing guidelines are used as a starting point for the professional. For example, AIHA indicates that OSHA’s guidance should be considered the minimum in terms of worker protection, and suggests that the 2002 New York City guidelines are a good basis for a competent professional to use while making decisions pertaining to building and occupant protection. In all cases, however, these guidelines are intended to be used as a starting point for a competent professional, who will then exercise judgment on a case-by-case basis. With respect to levels of mold, AIHA “doesn’t believe it is currently possible to define, or set, a single occupational exposure level for mold, due largely to the current state of scientific study in this area.”
6. National Air Duct Cleaners Association (NADCA) “General Specifications for the Cleaning of Commercial Heating, Ventilating and Air Conditioning Systems”
This 2002 publication describes the minimum requirements necessary to coordinate a commercial HVAC system cleaning project and, unlike IICRC’s standard, is more liberal in recommending the use of biocides.
7. American Conference of Governmental Industrial Hygienists (ACGIH) Bioaerosols: Assessment and Control
One of the most cited reference works is ACGIH’s 1999 Bioaerosols: Assessment and Control, a comprehensive guide to the assessment and control of bioaerosols in the workplace. Although characterized as related to the workplace, much of the information is applicable beyond the workplace environment. The target audience for the text includes industrial hygienists, indoor environmental specialists, occupational health professionals, teachers and managers.
8. American Industrial Hygiene Association (AIHA) “Report of Microbial Growth Task Force”
The AIHA issued this report in May of 2001 as a resource for the industrial hygienist, with the idea that it would be used in conjunction with existing guidance documents. The density and extent of mold growth determine the degree of remediation and procedures. The guiding principles are the identification and correction of moisture problems, the removal of damaged materials, cleaning of the surface of salvageable materials, and the removal of remaining dust. The AIHA refers to the New York City Guidelines, but cautions against overly strict adherence and encourages innovation and professional judgment by the hygienist. AIHA refers to the ACGIH textbook for determining the necessary level of personal protective equipment.
9. American Society for Testing and Materials International (ASTM)
Other organizations, such as ASTM, are still developing guidance documents. ASTM is a private, not-for-profit organization that develops standards used in research and development, product testing, quality systems, and commercial transactions. During 2003, ASTM held workshops concerning the development of mold guidance documents and standards in several of its technical committees, including building materials, insulation, air sampling and analysis and environmental assessment and corrective action. ASTM is hosting a symposium in July of 2004 in Colorado entitled, “D22 Conference on Mold: Detection, Health, and Physical Effects, and Remediation.”
10. General Education Publications
Some organizations and states have published broad statements geared toward the general public. For example, the Centers for Disease Control (CDC) published a document on its website called “Questions and Answers on Stachybotrys Chartarum and Other Molds” (2000). This CDC publication provides an elementary discussion about mold and mold remediation. Suggestions include cleaning moldy surfaces with a weak bleach solution (a practice which is no longer widely endorsed) and the disposal of mold contaminated carpets, wallboard, and insulation. Inspections for evidence of water damage and visible mold, and prompt repair of water leaks, condensation, infiltration and flooding are recommended to prevent mold growth. (www.cdc.gov/nceh/airpollution/mold/stachy.htm.)
The Environmental Protection Agency’s (EPA) “Brief Guide to Mold Moisture and Your Home,” provides a similar overview. This publication presents general mold remediation guidelines for the home and contains illustrations of mold growth on various strata, such as ceiling tile, a suitcase in a humid basement, a heating ventilator and a plastic lawn chair to demonstrate the variety of environments in which mold can thrive. Tips for mold cleanup include correcting water problems as soon as possible, scrubbing mold off hard surfaces with a detergent solution and discarding absorbent materials that become moldy. (www.epa.gov/iaq/molds/moldguide.html)
Several states have similar publications designed to offer general information about mold, its potential health effects and clean-up procedures. The information is intended as an overview for homeowners and includes disinfection steps and recommendation for disposal of materials. See for example, California Department of Health at http://www.cal-iaq.org, and Minnesota Department of Health at http://www.health.state.mn.us/divs/eh/air/index.htm.
The nature, complexity and sheer number of mold “guidelines” adds to the confusion, delay and hysteria over potential health hazards that exists when mold is discovered in the home or workplace. Further complicating this issue is the certification “bandwagon” for mold remediators. A building owner faced with the prospect of hiring a remediator will have trouble sorting out all of the various certifications.
As seen with mold guidelines, there are a variety of independent organizations that offer their own certification for mold assessors and remediators. In addition, there are training courses accredited by various state legislatures. Remediation guidelines are important for the efficient and effective removal of mold and for the protection of both workers and building occupants.
But guidelines also help police the profession. The ethics aspects of a certification program should address one of the most glaring problems, namely the conflict of interest that occurs when the same company inspects and then performs the mold clean-up.
B. Certification by Organizations
Most of the certifying organizations offer two certifications, one for a basic worker and one for a specialist. For example, the IICRC offers certifications for: (1) an Applied Microbial Remediation Technician (AMRT), which is a basic certification requiring classes, an exam, but no work experience, and (2) an Applied Microbial Remediation Specialist (AMRS), which requires experience in mold remediation and some form of health and safety training. (http://www.iicrc.org/s520info.html)
IAQA also offers certification standards for a Certified Mold Remediator (CMR), which requires experience in the field, a three day training class, and a written exam, while it’s Mold Remediation Worker (MRW) only requires a two day training course. (www.iaqa.org/cmr_info.htm)
C. State Licensing
Comprehensive certification requirements have been promulgated by some states. Texas is in the forefront and, in 2003, passed three bills relating to indoor mold. Taken together these constitute the most comprehensive state level legislation and regulation to date. Texas has established a licensing system for mold assessors and remediators. Certified industrial hygienists are exempt, however, from the licensing requirements. The regulations also propose accreditation standards for training courses, minimum work practices for mold assessment, remediation and recordkeeping, and institutes violations and penalties. Mold workers are categorized in a variety of ways depending on their expected role.
V. NEW HEALTH STUDY
In May of 2004, a new study was published regarding the health effects of mold. “Damp Indoor Spaces and Health,” prepared by the Institute of Medicine (IOM) reports on an extensive investigation of the association between various symptoms and mold. The IOM found sufficient evidence of an association between mold and upper respiratory (nasal and throat) problems, cough, and wheeze. There is also evidence of an association between mold and asthma in sensitized asthmatic people and hypersensitivity pneumonitis in susceptible persons. The study also found “suggestive” evidence of an association between mold and lower respiratory illness in children. Lastly, the IOM stated that there was not enough evidence to link mold to many symptoms that have been anecdotally linked to mold, such as the development of asthma, shortness of breath, airflow obstruction, lower respiratory illness in adults, fatigue, and many others. This work separates symptoms that may be attributable to mold from those that are unrelated, aids in resolving much of the current confusion around perceived mold-related dangers, and acts as a guide for new or revised regulations and laws since it employs a scientific approach to dealing with indoor air quality issues.
The development of uniform mold standards and guidelines for testing and remediation will have a positive effect in many areas, including construction, real estate, and insurance. To the extent that uniformity and agreement is established, the identification and clean up of excessive mold growth will proceed more smoothly. More importantly, increased certainty reduces delay and increases the opportunity to establish an approach that might bring more predictability to the mold remediation. Added predictability would encourage insurers to provide insurance coverage and reduce litigation.