Mold Legislation On the Rise

Washington, D.C. - What we don't know about mold is costing us. Mold fears - not facts -are spawning lawsuits and legislative and regulatory initiatives across the country.There is a serious lack of scientific evidence on mold, yet the number of lawsuits and states considering legislative and/or regulatory mandates continues to increase. One has to wonder why we are not being flooded with supporting information from insurers who do not want to see payouts increase, or the medical community who must see the importance of a healthy populous. The federal government has agencies studying mold, but the results of those studies are coming at a snail's pace. Meanwhile, there is no available data to be used by states anxious to address mold issues.
Legislation is pending in 23 states to regulate mold in one form or another, and we see several trends emerging. One such trend is the creation of task forces to study mold and recommend a course of action for the state. Georgia, Florida, New York, Oklahoma, Rhode Island, and several other states have established these task forces in one form or another. The main focus in all is the same: find out what is happening with mold so that improvements can be made in the laws of the state to ensure a safe environment for all. But without access to sound science, the task forces are, of course, working blind. And they do not seem to be waiting for science to catch up. In 2002, Maryland chose to quit waiting and released its own study on mold and its effects on the public. In the end, regulatory authority will be given to a new office of Indoor Air Quality at Maryland's Department of the Environment.

A second trend is the emergence of legislation to regulate acceptable airborne mold levels in schools. Twenty-three bills were considered on this topic last year, and Florida, Minnesota, and Arizona have already introduced similar bills this year. To-date, only Tennessee and Connecticut have passed bills regulating the acceptable mold level in schools, but certainly one can expect that as they are revisited this year, more will get through the gates. Hopefully, setting acceptable mold levels in commercial buildings will not be next.

Legislation requiring disclosure requirements for the sale and lease of properties is another trend that is emerging. Michigan, for instance, is considering legislation that would require mold disclosure, in addition to asbestos and lead paint disclosures. This makes the person renting or selling the property liable for future damages and fees that can be traced back to the presence of an organism that can grow to cover the surface area of a ceiling in 24 hours if the air it breathes is just right. Insurance issues will make their way into legislation dealing with commercial properties as well. It is already the central focus of several bills pending that relate to residential properties. On a positive note, one of those bills requires insurance companies to cover mold damages. Of course, that makes just one bill that is favorable to property owners, though it may still end up costing a property owner a higher premium.

Some help may be on the way. The National Academy of Sciences, backed by the Department of Health and Human Services, is currently over halfway through a study to "conduct a comprehensive review of the scientific literature regarding the relationship between damp or moldy indoor environments and the manifestation of adverse health effects, particularly respiratory and allergic symptoms." This study, which may be released as early as the third quarter of this year, could be a thorn in the side of trial lawyers who wish to use mold as a replacement for the waning asbestos litigation rush. However, there is also the possibility that the results could prove damaging for those on the losing side of most of the lawsuits to-date: property owners and managers. Ultimately, as more and more lawsuits head to the courts, someone will be held responsible. And until the science catches up, building owners and managers must find ways to avoid and eliminate mold before it becomes a legal liability.

The U.S. Environmental Protection Agency (EPA) and the U.S. Occupational Safety and Health Administration (OSHA) have come out with guidelines and recommendations for protecting properties from mold. Both agencies have stopped short of providing any sort of standard, but do recognize the problem and the need for maintenance in this area. In 1991, the EPA released Building Air Quality: A Guide for Building Owners and Managers. While this document covers a range of indoor air quality issues, it is an excellent resource in the fight against mold. It can be purchased on the EPA website along with several other supporting documents.

Mold is not going to go away. BOMA encourages you to know what legislation is pending in your state and to actively express your voice in favor of sound science and against premature regulation.

For more information, visit the BOMA International website (www.boma.org) or call (202) 408-2662.