Report Title:

Toxic Mold

Description:

Authorizes DOH to establish permissible mold exposure limits and other standards for indoor environments. Establishes toxic mold advisory board. Establishes requirements for disclosure of mold and related conditions in commercial and residential real property and public buildings.

THE SENATE

S.B. NO.

3160

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to toxic mold.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

TOXIC MOLD

Part I. GEneral provisions and definitions

   -1 Definitions. As used in this chapter, unless the context requires otherwise:

"Affect" means to cause a condition by the presence of mold in the dwelling unit, building, appurtenant structure, common wall, heating system, or ventilating and air-conditioning system that affects the indoor air quality of a dwelling unit or building.

"Authoritative bodies" means any recognized national or international entities with expertise on public health, mold

identification and remediation, or environmental health, including, but not limited to the United States Environmental Protection Agency, the World Health Organization, the American Conference of Governmental Industrial Hygienists, the New York City Department of Health, the Centers for Disease Control and Prevention, and the American Industrial Hygiene Association.

"Department" means the department of health.

"Indoor environments" means the affected dwelling unit or affected commercial or industrial building public utility, or other public body or institution.

"Mold" means any form of multicellular fungi that live on plant or animal matter and in indoor environments, including but not limited to cladosporium, penicillium, alternaria, aspergillus, fusarium, trichoderma, memnoniella, mucor, and stachybotryschartarum.

"Person" means an individual, corporation, company, association, partnership, limited liability partnership, limited liability company, municipality, or other public body or institution.

   -2 Toxic mold advisory board. (a) The department of health shall convene a toxic mold advisory board to advise the department on the development of mold-related standards for indoor environments, including but not limited to those relating to permissible mold exposure limits, health threat assessment, mold identification, and mold remediation.

(b) The advisory board shall be comprised of representatives from the department of health, department of commerce and consumer affairs, experts on the health effects of molds, public health experts, medical experts, industrial hygienists, mold abatement experts, building industry representatives, residential, commercial, and industrial property owners, tenants, and managers, realtors, and environmental groups.

(c) Advisory board members shall serve on a voluntary basis and shall be responsible for any costs associated with their participation the board, including travel costs.

   -3 Public educational materials. The department shall develop and make available in written and electronic form public educational materials including but not limited to information regarding the health effects of mold exposure, methods to prevent, identify, and remediate mold growth, pertinent state laws and regulations, consumer tips for dealing with mold remediation contractors, and resource and referral information.

PART II. STANDARDS

   -21 Permissible mold exposure limits. (a) The department shall consider the feasibility of adopting permissible mold exposure limits for indoor environments.

(b) If feasible, the department, in consultation with the task force, shall:

(1) Adopt permissible mold exposure limits that avoid adverse health effects, with an adequate margin of safety, and avoid any significant risk to public health;

(2) Balance the protection of the public health with technological and economic feasibility;

(3) Utilize the latest scientific data or existing standards adopted by authoritative bodies; and

(4) Develop permissible exposure limits that target the general population.

(c) The department shall consider the following criteria in adopting permissible mold exposure limits for indoor environments:

(1) The adverse health effects of exposure to molds on the general population, including specific effects on members of subgroups that comprise a meaningful portion of the general population, including but not limited to infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, and other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to molds;

(2) The standards for molds, if any, adopted by authoritative bodies;

(3) The technological and economic feasibility of compliance with the proposed permissible exposure limit for molds. For the purposes of determining economic feasibility pursuant to this paragraph, the department shall consider the costs of compliance for tenants, landlords, homeowners, and other affected parties; and

(4) Toxicological studies and any scientific evidence as it relates to mold.

(d) The department may develop alternative permissible exposure limits applicable for facilities such as hospitals, child care facilities, and nursing homes, whose primary business is to serve members of subgroups that comprise a meaningful portion of the general population and are at greater risk of adverse health effects from molds than the general population, including but not limited to infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, and immune compromised individuals.

   -22 Standards for assessment of health threat due to mold. (a) The department, in consultation with the task force, shall adopt standards to assess the health threat posed by the presence of mold, visible , invisible, and hidden in indoor environments.

(b) In developing assessment standards for indoor environments, the department shall consider:

(1) The adverse health effects of exposure to molds on the general population, including specific effects on members of subgroups that comprise a meaningful portion of the general population, including but not limited to infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, and other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to molds;

(2) Assessment standards adopted by authoritative bodies;

(3) The technological and economic feasibility of compliance with the proposed permissible mold exposure limits, including the costs of compliance for tenants, landlords, homeowners, and other affected parties;

(4) Any toxicological studies or additional scientific evidence; and

(5) Required air or surface testing to determine the presence of mold, whether visible, invisible, or hidden.

(c) The department may develop alternative assessment standards for facilities, such as hospitals, child care facilities, and nursing homes, whose primary business is to serve members of subgroups that comprise a meaningful portion of the general population and are at greater risk of adverse health effects to molds than the general population, including but not limited to infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, or immune compromised individuals.

   -23 Mold identification guidelines. (a) The department, in consultation with the task force, shall adopt mold identification guidelines for the recognition of mold, water damage, or microbial volatile organic compounds in indoor environments.

(b) Identification guidelines shall include scientifically valid methods to identify the presence of mold, including elements for the collection of air, surface, and bulk samples, visual identification, olfactory identification, laboratory analysis, measurements of amount of moisture, and presence of mold and other recognized analytical methods used for the identification of molds.

(c) In developing mold identification guidelines, the department shall:

(1) Avoid adverse effects on the health of the general population with an adequate margin of safety, and avoid any significant risk to public health;

(2) Balance protection of the public health with technological and economic feasibility;

(3) Consider permissible mold exposure limits and health threat assessment standards established under sections    -21 and    -22, respectively;

(4) Consider standards for mold identification adopted by authoritative bodies;

(5) Exercise professional judgment with a view towards practicality; and

(6) Consider toxicological reports and other scientific evidence.

(d) A commercial, industrial, or residential landlord or a public entity that rents or leases a unit or building shall conduct air or surface tests to determine whether the presence of molds exceeds the permissible mold exposure limits established pursuant to section    -21.

(e) The department shall develop a reporting form for building inspection that may be used to document the presence of mold.

   -24 Mold remediation guidelines. (a) The department, in consultation with the task force, shall develop and disseminate remediation guidelines for molds in indoor environments.

(b) Remediation guidelines shall:

(1) Provide practical guidance for the removal of mold and abatement of the underlying cause of mold and associated water intrusion and water damage in indoor environments in a manner that protects the health of persons performing the removal and abatement;

(2) Balance the protection of the public health with technological and economic feasibility;

(3) Include criteria for personal protective equipment; and

(4) Be based upon consideration of:

(A) The limits, standards, and guidelines established under sections    -21,   -22, and    -24; and

(B) Toxicological reports, current scientific data, and any existing standards for mold remediation adopted by authoritative bodies.

(c) A landlord, owner, seller, or transferor shall utilize the services of a specially qualified professional to conduct the mold remediation, who shall not be the same professional that performs an evaluation for the detection of mold.

(d) A commercial, industrial, or residential landlord, or a public entity that rents or leases a unit or building shall conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible exposure limits to mold established by section    -21. The tests shall be performed by a third party that shall not be the same entity that subsequently performs mold remediation services.

   -25 Public input on and periodic review of limits, standards, and guidelines. (a) Prior to final adoption of the limits, standards, and guidelines established under sections    -21,    -22,    -23, and    -24, the department shall provide for public input thereon by posting on its Internet web site a notice that:

(1) Informs interested persons that the department has initiated work on developing the respective limit, standard, or guideline;

(2) A brief description or bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of the respective limit, standard, or guideline; and

(3) Lists the name and address of the department contact person to whom information may be sent, the deadline for submission of information, and contains a statement that all information submitted will be made public, upon request.

(b) The department may amend the respective limit, standard, or guideline if supported by clear and convincing evidence consistent with the requirements for the respective limit, standard, or guideline.

(c) The department may review and adopt by reference information prepared by or on behalf of the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national limits, standards, or guidelines.

(d) At least once every five years following the adoption of the respective limit, standard, or guideline, the department shall review and amend the same consistent with the criteria set forth in sections    -21,    -22,    -23, and    -24, and based upon:

(1) Changes in technology or treatment techniques that permit a materially greater protection of public health; or

(2) New scientific evidence that indicates that molds may present a materially different risk to public health than was previously determined.

PART III. COMMERCIAL AND INDUSTRIAL REAL PROPERTY

   -31 Sale or transfer; disclosure. (a) A seller or transferor of commercial or industrial real property shall provide written disclosure to prospective buyers as soon as practicable before the transfer of title when:

(1) The seller or transferor knows of the presence of mold, whether visible, invisible, or hidden, in the unit or building; and

(2) The mold either exceeds permissible mold exposure limits to molds established by section    -21 or poses a health threat under the standards established pursuant to section    -22;

provided that this subsection shall not apply if the presence of mold was remediated according to the mold remediation guidelines established pursuant to section    -24.

(b) A seller or transferor of commercial or industrial real property seller shall conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible mold exposure limits established pursuant to section    -21. The tests shall be performed by a third party that shall not be the same entity that subsequently performs mold remediation services.

   -32 Lease or rental; disclosure. (a) Commercial and industrial landlords shall provide written disclosure to prospective and current tenants of the affected units as specified in subsection (b), when:

(1) The landlord knows of the presence of mold, whether visible, invisible, or hidden, in the unit or building; and

(2) The mold either exceeds permissible mold exposure limits to molds established by section    -21 or poses a health threat under the standards established pursuant to section    -22.

(b) The written notice shall be provided to prospective tenants as soon as practicable and prior to entering into the rental agreement, and to current tenants in affected units within     days of the discovery of mold.

(c) A commercial and industrial landlord shall be exempt from providing written disclosure to prospective tenants pursuant to this section if the presence of mold was remediated according to the mold remediation guidelines established under section    -24.

(d) A commercial or industrial landlord shall conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible mold exposure limits established under section    -21. The tests shall be performed by a third party that shall not be the same entity that subsequently performs mold remediation services.

   -33 Commercial tenant's duties. (a) Any tenant of a commercial or industrial real property who knows that mold is present in the building, heating system, ventilating or air-conditioning system, or appurtenant structures, or that there is a condition of chronic water intrusion or flood, shall:

(1) If the landlord is responsible for maintenance of the property, provide written notice to the landlord within     days of discovery of the mold or condition, and make the property available for appropriate assessment or remedial action as soon as is reasonably practicable; or

(2) If the tenant is responsible for maintenance of the property, provide written notice to the landlord within     days of discovery of the mold or condition and correct the same in compliance with the terms of the lease or rental agreement.

(b) This section shall take effect on the first January 1 or July 1 that occurs at least six months after the department adopts standards pursuant to sections    -21,    -22, and    -24.

   -34 Commercial landlord's duties. (a) Commercial and industrial landlords who know or have notice that mold is present in the building, heating system, ventilating or air-conditioning system, or appurtenant structures, or that there is a condition of chronic water intrusion or flood, within     days of learning or being notified of the mold or condition, shall assess the presence of mold or the condition and conduct any necessary remedial action.

PART IV. PUBLIC FACILITIES

   -41 Disclosure to tenants of public facilities. (a) A public entity that owns, leases, or operates a building shall provide written disclosure to all building occupants and prospective tenants as specified in subsection (b) when the public entity knows, or has reasonable cause to believe, that:

(1) A condition of chronic water intrusion or flood exists, or that mold, visible, invisible, or hidden, is present that affects the building or unit; and

(2) The mold either exceeds permissible mold exposure limits to molds established by section    -21 or poses a health threat under the standards established pursuant to section    -22.

(b) The written notice shall be provided:

(1) To prospective tenants as soon as practicable and prior to entering into the rental agreement; and

(2) To current building occupants in affected units or buildings within     days of the discovery of the mold or condition.

(c) A public entity shall be exempt from providing written disclosure to prospective tenants pursuant to this section if the presence of mold was remediated according to the mold remediation guidelines established under section    -24.

PART V. RESIDENTIAL RENTALS

   -51 Landlord's duties to test and disclose. (a) A residential landlord shall conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible mold exposure limits established under section    -21. The tests shall be performed by a third party that shall not be the same entity that subsequently performs mold remediation services.

(b) A residential landlord shall provide written disclosure to prospective and current tenants of the affected units as specified in subsection (c) when the residential landlord knows, or has reasonable cause to believe that:

(1) Mold, visible, invisible, or hidden, is present that affects the unit or the building; and

(2) The mold either exceeds permissible mold exposure limits to molds established by section    -21 or poses a health threat under the standards established pursuant to section    -22.

(c) The written disclosure shall be provided:

(1) To prospective tenants prior to entering into the rental or lease agreement unless the mold condition was remediated according to the mold remediation guidelines established under section    -24; and

(2) To current tenants in affected units within     days of the discovery of the mold or condition.

(d) In addition to providing the disclosure required under subsection (c), a residential landlord shall provide prospective and current tenants with information regarding the potential health risks of mold exposure as contained in a consumer-oriented booklet developed and disseminated by the department.

PART VI. ENFORCEMENT

   -61 Enforcement; rules. The department shall adopt rules pursuant to chapter 91 for the enforcement of this chapter."

SECTION 2. Section 521-42, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) The landlord shall at all times during the tenancy:

(1) Comply with all applicable building [and], housing, and other laws materially affecting health and safety[;], including but not limited to chapter    .

(2) Keep common areas of a multi-dwelling unit premises in a clean and safe condition;

(3) Make all repairs and arrangements necessary to put and keep the premises in a habitable condition;

(4) Maintain all electrical, plumbing, and other facilities and appliances supplied by the landlord in good working order and condition, subject to reasonable wear and tear;

(5) Except in the case of a single family residence, provide and maintain appropriate receptacles and conveniences for the removal of normal amounts of rubbish and garbage, and arrange for the frequent removal of such waste materials; and

(6) Except in the case of a single family residence, or where the building is not required by law to be equipped for the purpose, provide for the supplying of running water as reasonably required by the tenant.

Prior to the initial date of initial occupancy, the landlord shall inventory the premises and make a written record detailing the condition of the premises and any furnishings or appliances provided. Duplicate copies of this inventory shall be signed by the landlord and by the tenant and a copy given to each tenant. In an action arising under this section, the executed copy of the inventory shall be presumed to be correct. If the landlord fails to make such an inventory and written record, the condition of the premises and any furnishings or appliances provided, upon the termination of the tenancy shall be rebuttably presumed to be the same as when the tenant first occupied the premises."

SECTION 3. The department of health shall report to the legislature no later than twenty days before the convening of the regular session of 2005 on its progress in:

(1) Developing permissible mold exposure limits;

(2) Developing assessment standards;

(3) Developing mold identification guidelines; and

(4) Developing mold remediation standards.

SECTION 4. The department of health shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, to establish standards for sections    -21,    -22, and    -24, of the new part created by section 1 of this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________