Mold: Exposure Limits & 'General Duty Obligations

3.1.2002
Moldy bread is bad enough, but mold in the walls of your building can be worse. Numerous newspaper articles, TV news magazine shows and litigation filings tell stories of costly cleanup efforts and toxic torts litigation caused by the discovery of mold in buildings. After the initial story line of human exposure, health effects and financial loss is told, what is pointedly mentioned in all those articles is the absence of any government indoor air quality standards for fungi spores. As a result, it is difficult for building owners and employers to know when the presence of mold might constitute a violation of public health and worker safety laws.

In an effort that will surely attract nationwide attention, the California legislature recently enacted laws initiating the adoption of the first indoor air quality standards for fungi spores. Even before such regulations are adopted however, California government agencies have taken administrative enforcement actions against building owners and employers based on "general duty" regulations intended to protect public and worker health.

As of January 1, the California Department of Health Services was required to convene a task force to advise it on the development of (i) permissible exposure limits to indoor mold (ii) standards for the assessment of molds in indoor environments and (iii) standards for the identification and remediation of mold. California Health and Safety Code §§ 26100 et seq. The department is further required to adopt "feasible" exposure limits to indoor molds, in consultation with the task force. While no deadline for the adoption of formal exposure limits is established by the statute, the department is required to report on its progress by July 1, 2003.

The Toxic Mold Protection Act additionally requires anyone who sells or rents residential, commercial or industrial property and who knows, or should know, that mold is present and exceeds the permissible exposure limits must provide written disclosure to potential buyers or tenants. However, these disclosure duties do not apply until six months after the department adopts the exposure limits. Moreover, the statute does not require a seller or landlord to conduct tests to determine whether the presence of mold exceeds the permissible exposure limits.

While the department considers taking action under the Toxic Mold Protection Act, the absence of mold health standards does not prevent California agencies from taking administrative enforcement actions against employers with buildings containing mold. Administrative enforcement actions taken by Cal-OSHA have ranged from "red-tag" building closures to administrative penalties. Most of these enforcement actions occur under various "general duty" provisions of law, which apply even though there are no specific standards for what constitutes a violation. Several of the California OSHA general duty provisions that have served as the basis for administrative enforcement actions are summarized below. (Included in parentheses beneath each summarized general duty provision are potential steps that an employer can take to improve compliance with the provision.)

-- Cal-OSHA Regulation, 8 C.C.R. § 3362(a) : To the extent that the nature of the work allows, work areas must be kept "clean, orderly and in a sanitary condition." (Because no numerical standards currently exist for permissible exposures to molds, Cal-OSHA is using this "general duty" standard to penalize employers for mold growth in buildings.)

(Potential Compliance Steps: Review (i) general inspection procedures of all divisions to emphasize monitoring for water intrusion and mold, (ii) training of building managers to ensure full and prompt reporting of water stains, mold growth, odors, etc. and (iii) record keeping of all reports of unsanitary conditions and all responses to such reports.)

-- Cal-OSHA Regulation ,8 C.C.R. § 5155(e)(1) and § 5155(e)(4): Each employer must monitor the work environment when it is reasonable to suspect that employees may be exposed to unhealthful concentrations of airborne contaminants and monitoring results must be recorded and maintained.

(Potential Compliance Steps: Review (i) the procedures for determining that there is no reasonable basis to suspect unhealthful degradation of indoor air quality following reports of water intrusion or mold growth and following all building repair, renovation and remediation activities, (ii) the experience and qualifications of air quality consultants and laboratories used to sample indoor air quality, (iii) the instructions provided such consultants regarding the preparation of sampling reports to ensure the reports are appropriate and useful for distribution to employees.)

-- Cal-OSHA Regulation, 8 C.C.R. § 3204(e)(1)(A): Each employer must provide access to medical/exposure records within fifteen (15) days of when (i) employee makes request or (ii) following the employee request, the information is first available to the employer (e.g., received from the analytical laboratory).

(Potential Compliance Steps: Review (i) the system for recording employee requests for sampling information and (ii) the system for ensuring that all departments involved in sampling events share information in timely fashion to permit disclosure of results to the employee requesters.)

-- Cal-OSHA Regulation, 8 C.C.R. § 5141(a-c): Each employer must use engineering and administrative controls to prevent harmful exposures of employees to airborne contaminants; respirators are a last resort.

(Potential Compliance Steps: Review the applicable sampling thresholds of concern (e.g., ppm of chemicals or mold spore counts) that are used to trigger the use of engineering controls (e.g., plastic enclosures of problem areas or building fans) or administrative controls (e.g., building closure) prior to employee reoccupation of the building.)

Although only time will tell what standards the California Department of Health Services will adopt under the new Toxic Mold Protection Act, California agencies and plaintiff counsel are seeking today to enforce "general duty" requirements against employers and property owners whose building are discovered to contain indoor molds.

Attorneys at HellerEhrman have handled indoor mold issues ranging from administrative enforcement actions for "red-tag" building closures and administrative penalties to construction defect, insurance coverage and toxic tort litigation. For more information contact Kenneth Finney in Heller Ehrman's San Francisco office. He can be reached at (415) 772-6000 or at kfinney@hewm.com.