Questions, Fears Surround Toxic Mold Protection Act

“This issue demands our resolution,” said Oritz. “Californians coping with the health effects of molds have no government entity they can turn to decide when mold is a problem and what to do about it.”

There is no doubt that toxic molds have captured public attention and affect an increasing number of people every day. They are of increasing concern to public health and health care professionals, as well as the general public. Molds, in elevated concentrations, especially among vulnerable populations, can have dreadful health consequences. Molds can trigger acute asthma reactions, respiratory distress, and a variety of other symptoms.

CONTROVERSIAL PROVISIONS

As expected, several provisions in SB 732 have generated substantial criticism and controversy. The Chelsea Group, Ltd., an Itasca, IL-based consulting company that specializes in indoor air quality (IAQ) and indoor environments, is carefully watching the progress — or lack — of this bill. It highlighted some of its concerns in INvironment, its monthly newsletter:

• Definitions — The terms “mold infestation” and “toxic” are used throughout without being defined; other microbial infestations, such as bacteria, are ignored altogether.
• The PEL provision — One PEL for each of the thousands of species of fungi? Or one blanket PEL for all fungi? Many believe it is impossible to set PEL for mold.
• Jurisdiction for PELs — DHS does not set PELs; the U.S. Occupational Safety and Health Administration (OSHA) does.
• Application of PELs — Commercial or industrial landlords shall not be required to conduct air tests to determine whether the presence of molds exceeds the PELs.
• Mold remediation standards — The bill specifies that remediation shall “not require a landlord, owner, seller, or transferor to be specifically trained or certified or use the services of a specifically qualified professional to conduct the mold remediation.”

A special strategy team of more than 60 prominent hygienists, inspectors, realtors, attorneys, remediation contractors, and others was formed specifically to attack the mold remediation standards provision.

It goes without saying that lawyers are carefully watching the progress of this bill. In truth, molds are predicted to generate more litigation than asbestos. Therefore, a lot is at stake here.

For one, Richard Rydstrom, Esq., an attorney as well as a national speaker and author, has many questions regarding SB 732.

“Will this law make it easier to successfully sue or more difficult?” he asked. “Since the law has several seemingly uncertain provisions, language contradictions, or unanswered questions, one could expect both plaintiffs and defendants to exploit these new opportunities (or burdens). Does the law create a higher negligence per se duty on the owner and/or landlord who gets a citation from an authorized ‘enforcement’

officer? Will that create a presumption at law of breach or uninhabitability?

“What is meant by ‘standards’ and ‘guidelines’ and are they misused in the act? Will or did the law adopt the DHS standards of California OSHA?

“Although the law still has many interpretation questions, as most new laws do, the judiciary will be forced to answer them in the upcoming lawsuits. Remember, historically new laws mean new lawsuits!”

UNENVIABLE CHORE

I do not envy the chore placed on California’s DHS. After all, someone must establish mold assessment, identification, and remediation standards — even though my first choice would be ASHRAE. Due to mold, the courts are currently experiencing an onslaught of consumer (homeowners and tenant) lawsuits. According to Rydstrom, lawsuits in New York alone are making claims for construction defects and mold ranging from $65 million to $8 billion. Illinois, he said, has at least one for $67 million.

How the Toxic Mold Protection Act shakes down…well…we’ll keep you posted.

Skaer is editor-in-chief. He can be reached at 248-244-6446; 248-362-0317 (fax); markskaer@achrnews.com (e-mail).

Publication date: 01/28/2002