CALIFORNIA TOXIC MOLD PROTECTION ACT OF 2001

In response to growing concerns about the presence of toxic molds in both new and old construction, the California legislature enacted Senate Bill 732 during the 2001 legislative session. Senate Bill 732 is entitled the Toxic Mold Protection Act of 2001 (the "Act"). The Act adds Section 26100 et seq. to the California Health and Safety Code.  Below is a portion of the Mold Protection act of 2001.

Overview of the Act

The Act requires the California State Department of Health Services (DHS or the "department") to establish a task force of volunteer health officers, medical experts, mold abatement experts, and persons from various other backgrounds and professional disciplines to advise the DHS with respect to criteria to be considered by the DHS in the following areas:

  • The development of permissible limits for exposure to mold for indoor environments that will avoid adverse health risks and any significant risk to public health;
  • The adoption of practical standards of acceptable levels of mold to assess the health threat presented by both visible and non-visible molds in an indoor environment, and to protect the public health, including alternative standards for such facilities as hospitals, child care facilities, and nursing homes;
  • The establishment of guidelines for the identification of molds, water damage or "microbial volatile organic compounds" in indoor environments; and
  • The creation of guidelines for the remediation of molds in indoor environments, and criteria for personal protective equipment to be worn by those providing such services.

The Department of Health Services is required under the Act to report the status of its progress on the development of these standards and guidelines to the California Legislature by July 1, 2003, although no specific date is set by the statute for their adoption by the DHS. After adoption, however, the DHS will be required to review the standards and guidelines at least once every five years, and make any required modifications to ensure they are consistent with current technology, and any new scientific evidence regarding the change in health risks of mold. 

 

The Act also establishes disclosure requirements for owners and sellers of real property as it relates to mold. It requires all sellers and landlords of commercial or industrial real property to make certain disclosures regarding the known existence of visible and non-visible mold that exceeds the adopted DHS permissible guidelines, unless the mold has been remediated according to DHS guidelines. Residential landlords are required to provide written disclosures to prospective tenants if they know or have reasonable cause to believe visible or non-visible molds exist that exceed permissible exposure limits. Neither the commercial/industrial landlords nor residential landlords are required to conduct air or surface tests to determine the presence of molds exceeding the guidelines. The duty of disclosure arises the first January 1 or July 1 that occurs at least six months after the guidelines are adopted by DHS. 

 

The presence of mold above the permissible exposure levels pursuant to guidelines to be adopted by DHS are to be included in the "Real Estate Transfer Disclosure Statements" required by the California Civil Code for the transfer of single family homes, condominiums, and other residential properties. The Act does not otherwise change the duty of disclosure by the parties to a real estate contract or their agents, or alter a real estate broker's existing duties of inspection and disclosure. 

 

There are no express references in the Act to the inspection duties and disclosure requirements of a homeowners' association. However, the fiduciary duties of an association board would continue to require a reasonable investigation (with a qualified consultant) should the association become aware of water intrusion and/or the existence of mold within areas maintained by the association and the disclosure of pertinent information as to the condition and appropriate remediation action to the association's affected members and residents.

Definitions                    

According to Health and Safety Code §26101, for purposes of the Act, the following definitions apply:

  • "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, other states, 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.
  • "Certified Industrial Hygienist" means a person who has met the education, experience, and examination requirements of an industrial hygiene certification organization as defined in §20700 of the Business and Professions Code.
  • "Code enforcement officer" means a local official responsible for enforcing housing codes and maintaining public safety in buildings using an interdepartmental approach at the local government level.
  • "Department" means the State Department of Health Services, designated as the lead agency in the adoption of permissible exposure limits to mold in indoor environments, mold identification and remediation efforts, and the development of guidelines for the determination of what constitutes mold infestation.
  • "Indoor environments" means the affected dwelling unit or affected commercial or industrial building.
  • "Mold" means any form of multicellular fungi that live on plant or animal matter and in indoor environments. Types of mold include, but are not limited to, Cladosporium, Penicillium, Alternaria, Aspergillus, Fuarim, Trichoderma, Mernnoniella, Mucor, and Stachybotrys chartarum, often found in water-damaged building materials.
  • "Person" means an individual, corporation, company, association, partnership, limited liability company, municipality, public utility, or other public body or institution.
  • "Public health officer" means a local health officer appointed pursuant to §101000 or a local comprehensive health agency designated by the board of supervisors pursuant to §101275 to carry out the drinking water program.

Standards

All standards that the department develops pursuant to the Act shall be in accordance with existing administrative law procedures applicable to the development of regulations. Health and Safety Code §26101.5.

Task Force

The department shall convene a task force, which shall advise the department on the development of standards pursuant to §§26103, 26105, 26106, 26120, and 26130. The task force shall be comprised of representatives of public health officers, environmental health officers, code enforcement officers, experts on the health effects of molds, medical experts, certified industrial hygienists, mold abatement experts, representatives of government-sponsored enterprises, representatives from school districts or county offices of education, representatives of employees and representatives of employers, and affected consumers, which include, but are not limited to, residential, commercial and industrial tenants, homeowners, environmental groups, and attorneys, and affected industries, which include, but are not limited to, residential, commercial and industrial building proprietors, managers or landlords, builders, realtors, suppliers of building materials and suppliers of furnishings, and insurers. Task force members shall serve on a voluntary basis and shall be responsible for any costs associated with their participation in the task force. The department shall not be responsible for travel costs incurred by task force members or otherwise compensating task force members for costs associated with their participation in the task force. Health and Safety §26101.7.

Adoption of Exposure Limits

The department shall consider the feasibility of adopting permissible exposure limits to mold in indoor environments. If the department finds that adopting permissible exposure limits to mold in indoor environments is feasible, the department, in consultation with the task force convened pursuant to §26101.7, shall:

  • Adopt permissible exposure limits to mold for indoor environments that avoid adverse effects on health with an adequate margin of safety, and avoid any significant risk to public health.
  • Notwithstanding paragraph (1), balance the protection of public health with technological and economic feasibility when it adopts permissible exposure limits.
  • Utilize and include the latest scientific data or existing standards adopted by authoritative bodies.
  • Develop permissible exposure limits that target the general population.

The department shall consider all of the following criteria when it adopts permissible exposure limits for molds in indoor environments:

  • 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, which may include infants, children age 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, or other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to molds.
  • The standards for molds, if any, adopted by authoritative bodies.
  • 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 to tenants, landlords, homeowners, and other affected parties.
  • Toxicological studies and any scientific evidence as it relates to mold.

The department may develop alternative permissible exposure limits applicable for facilities, which may include 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. These subgroups may include infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, or immune compromised individuals. 

 

The department shall report to the Legislature on its progress in developing the permissible exposure limit for molds by July 1, 2003. Health and Safety §§26102-26103.

Notice of Permissible Exposure Limits

The department, at the time it commences preparation of the permissible exposure limits to mold, is required to post a notice on its Internet Web site. The requirements of the notice are as follows:

  • The notice must inform interested persons that the department has initiated work on the permissible exposure limits to mold.
  • The notice shall also include a brief description or a bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of the permissible exposure limits.
  • The notice shall inform persons who wish to submit information concerning exposure to molds of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the permissible exposure limits, and that all information submitted will be made available to any member of the public who makes the request.

The department may amend the permissible exposure limits to molds to make the limits less stringent if the department shows clear and convincing evidence that the permissible exposure limits to molds should be made less stringent and the amendment is made consistent with §26103. 

 

Additionally, the department may review, and consider adopting by reference, any information prepared by, or on behalf of, the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national permissible exposure limits to molds. 

 

At least once every five years, after adoption of permissible exposure limits to molds, the department shall review the adopted limits and shall, consistent with the criteria set forth in subdivisions (a) and (b) of §26103, amend the permissible exposure limits if any of the following occur:

  • Changes in technology or treatment techniques that permit a materially greater protection of public health.
  • New scientific evidence that indicates that molds may present a materially different risk to public health than was previously determined.

Health and Safety Code §26104.

Adoption of Practical Standards

The department, in consultation with the task force convened pursuant to §26101.7 standards, must also adopt practical standards to assess the health threat posed by the presence of mold, which meet the following requirements:

  • The standards shall address visible and invisible mold in indoor environments.
  • The department shall adopt assessment standards for molds that do the following:
  • Protect the public's health.
  • Notwithstanding paragraph (1) balance the protection of public health with technological and economic feasibility when it adopts assessment standards.
  • Utilize and include the latest scientific data or existing standards for the assessment of molds adopted by authoritative bodies.
  • Develop standards that target the general population.
  • The department shall ensure that air or surface testing is not required to determine whether the presence of mold constitutes a health threat posed by the presence of mold, both visible and invisible or hidden, in an indoor environment.
  • The department shall consider all of the following criteria when it adopts standards for the assessment of molds in indoor environments:
  • 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, which may include infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, or other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to molds.
  • The standards for assessment of molds, if any, adopted by authoritative bodies.
  • 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 to tenants, landlords, homeowners, and other affected parties.
  • Any toxicological studies or additional scientific evidence.
  • The department shall report to the Legislature on its progress in developing the assessment standards for molds by July 1, 2003.

Similarly, under §26106, the department may develop alternative assessment standards applicable for facilities, which may include 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. These subgroups may include infants, children age six years and under, pregnant women, the elderly, asthmatics, allergic individuals, or immune compromised individuals. Health and Safety Code §26105.

Alternate Standards for High Risk Groups

At the time the department commences preparation of standards for the assessment of molds, it must electronically post on its Internet Web site a notice that informs interested persons of the following:

  • That the department has initiated work on the assessment standards.
  • The notice shall also include a brief description, or a bibliography, of the technical documents or other information the department has identified to date as relevant to the preparation of the assessment standards.
  • The notice shall inform persons who wish to submit information concerning the assessment of molds in indoor environments of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the assessment standards, and that all information submitted will be made available to any member of the public who makes the request.

The department may review, and consider adopting by reference, any information prepared by, or on behalf of, the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national assessment standards for molds. 

 

At least once every five years, after adoption of assessment standards for molds, the department shall review the adopted standards and shall, consistent with the criteria set forth in subdivisions (a), (b), and (c) of §26105, amend the standards if either of the following occur:

  • Changes in technology or treatment techniques that permit a materially greater protection of public health.
  • New scientific evidence that indicates that molds may present a materially different risk to public health than was previously determined.

Health and Safety Code §26107.

Guidelines for Recognition of Mold

The department, in consultation with the task force convened pursuant to §26101.7, shall adopt mold identification guidelines for the recognition of mold, water damage, or microbial volatile organic compounds in indoor environments. 

 

Identification guidelines shall include scientifically valid methods to identify the presence of mold including elements for 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. 

 

Identification guidelines developed by the department shall do all of the following:

  • Avoid adverse effects on the health of the general population, with an adequate margin of safety, and avoid any significant risk to public health.
  • Notwithstanding paragraph (1), balance the protection of public health with technological and economic feasibility.
  • Utilize and include the latest scientific data or existing standards for the assessment of molds adopted by authoritative bodies.

The department shall consider all of the following criteria when it develops identification guidelines for mold:

  • Permissible exposure limits to molds developed by the State Department of Health Services pursuant to subdivisions (a) and (b) of §26103, or what constitutes a health threat posed by the presence of mold, both visible and invisible or hidden, in an indoor environment, according to the department's standards as developed pursuant to §26105.
  • Standards for mold identification, if any, adopted by authoritative bodies.
  • Professional judgment and practicality.
  • Toxicological reports or additional Scientific evidence.

The department shall not require a commercial, industrial, or residential landlord or a public entity that rents or leases a unit or building to 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 subdivisions (a), (b), and (c) of §26103. The department also shall develop a reporting form for building inspection that may be used to document the presence of mold. 

The department shall report to the Legislature on its progress in developing identification guidelines for mold by July 1, 2003. 

The department may review, and consider adopting by reference, any information prepared by, or on behalf of, the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national identification standards for molds. Health and Safety Code §§26120-26122.

Posting Notice of Identification Guidelines

The department shall, at the time it commences preparation of identification guidelines for mold, electronically post on its Internet Web site a notice that informs interested persons of the following:

  • The notice shall indicate that the department has initiated work on the identification guidelines.
  • The notice shall include a brief description, or a bibliography, of the technical documents or other information the department has identified to date as relevant to the preparation of the identification guidelines for mold.
  • The notice shall inform persons who wish to submit mold identification information of the name and address of the person in the office to whom the information may be sent, the date by which the information must be received for the department to consider it in the preparation of the identification guidelines, and that all information submitted will be made available to any member of the public who makes the request.

Health and Safety Code §26124.

Five-Year Reviews

All identification guidelines for mold published by the department shall be reviewed at least once every five years and revised, as necessary, based upon the availability of new scientific data or information on effective mold identification. Health and Safety Code §26125. 

Guidelines for Remediation

The department, in consultation with the task force convened pursuant to §26101.7, shall develop and disseminate remediation guidelines for molds in indoor environments. Remediation guidelines for mold developed by the department shall do all of the following:

  • 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.
  • Protect the public's health.
  • Notwithstanding paragraph (2), balance the protection of public health with technological and economic feasibility.
  • Utilize and include toxicological reports, the latest scientific data, or existing standards for the remediation of molds adopted by authoritative bodies.
  • Provide practical guidance for the removal or cleaning of contaminated materials in a manner that protects the health of the person performing the abatement.
  • Include criteria for personal protective equipment.
  • Not require a landlord, owner, seller, or transferor, to be specially trained or certified or utilize the services of a specially qualified professional to conduct mold remediation.

The department shall consider all of the following criteria when it develops remediation guidelines for mold:

  • Permissible exposure limits to molds developed by the department pursuant to subdivisions (a) and (b) of §26103, or what constitutes a health threat posed by the presence of mold, both visible and invisible or hidden, in an indoor environment, according to the department's guidelines as developed pursuant to §26105.
  • Guidelines for mold remediation, if any, adopted by authoritative bodies.
  • Professional judgment and practicality.

The department shall not require a commercial, industrial, or residential landlord, or a public entity that rents or leases a unit or building to 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 subdivisions (a), (b), and (c) of §26103. 

The department shall report to the Legislature on its progress in developing remediation standards for mold by July 1, 2003. Health and Safety Code §§26130-26131.

Posting of Remediation Guidelines

At the time the department commences preparation of remediation guidelines for mold, it must:

  • Electronically post on its Internet Web site a notice that informs interested persons that it has initiated work on the remediation standards.
  • The notice shall also include a brief description, or a bibliography, of the technical documents or other information the department has identified to date in the preparation of remediation guidelines for mold.
  • The notice shall inform persons who wish to submit information concerning mold remediation of the name and the address of the person in the office to whom the information may be sent, the date by which the information must be received in a department to consider it in the preparation of remediation standards and that all information submitted will be made available to any member of the public who makes the request.

The department may review, and consider adopting by reference, any information prepared by, or on behalf of, the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national remediation standards for molds. Health and Safety Code §§26132-26133.

Information Available to Public

Upon request, the department must make available to the public information about contracting for the removal of mold in a building or surrounding environment, including all of the following:

  • Recommended steps to take when contracting with a company to remove mold.
  • Existing laws, regulations, and guidelines developed by the department, pertaining to permissible exposure limits to mold infestation, identification, and remediation.
  • Basic health information as contained in existing mold publications.

All mold remediation guidelines published by the department shall be reviewed at least once every five years and revised, as necessary based upon the availability of new scientific data. 

The State Department of Health Services shall develop public education materials and resources to inform the public about the health effects of molds, methods to prevent, identify and remediate mold growth, resources to obtain information about molds, and contact information for individuals, organizations, or government entities to assist with public concerns about molds. 

The department shall make its public education materials available to public health officers, environmental health officers, commercial and residential landlord organizations, homeowners' organizations, and tenants' organizations. These materials shall be readily available to the general public, and shall be comprehensible to the general public. The materials also must be produced to include other languages, in addition to English, to accommodate the diverse multicultural population of California. Finally, the materials must be made available on the department's Internet Web site. Health and Safety Code §26134.

Compliance with Other Laws

Nothing in the Act shall relieve a seller, transferor, lessor, agent, landlord, or tenant from any responsibility for compliance with other obligations, laws, ordinances, codes, or regulations, including but not limited to the duties outlined in §§1941 and 1941.1 of the Civil Code and any other duties provided for under common law. Additionally, nothing in the Act shall alter or modify any right, remedy, or defense otherwise available under law, and nothing in the Act shall affect the existing obligations of the parties or transferor to a real estate contract, or their agents, to disclose any facts materially affecting the value and desirability of the property, including, but not limited to, the physical conditions of the property and previously received reports of physical inspections noted on the disclosure form set forth in §1102.6 or 1102.6a of the Civil Code. 

Similarly, nothing in the Act shall be construed to change the existing inspection and disclosure duties of a real estate broker or salesperson including, but not limited to, those duties imposed by §2079 of the Civil Code, and the specification of items for disclosure in the Act does not limit or abridge any obligation for disclosure created by any other provision of law, or which may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction. 

All items subject to disclosure requirements under the Act are subject to enforcement pursuant to Article 5 (commencing with §26154) of the Health and Safety Code. 

Finally, neither the transferor nor any listing or selling agent shall be held liable for any error, inaccuracy, or omission of any information delivered pursuant to this article if the error, inaccuracy, or omission was not within the personal knowledge of the transferor, or the listing or selling agent, or was based on information timely provided by public agencies, or by other persons providing relevant information by delivery of a report or opinion prepared by an expert dealing with matters within the relevant scope of the professional's license or expertise, and ordinary care was exercised in obtaining and transmitting it. Health and Safety Code §26153.

Enforcement by Government Agencies

Public health officers, code enforcement officers, environmental health officers, city attorneys, and any other appropriate government entities may respond to complaints about mold and may enforce standards adopted by the department, pursuant to subdivisions (a), (b), and (c) of §26103 and subdivisions (a), (b), and (c) of §26105, and enforce the disclosure requirements of §§26147 and 26148 that are developed by the department in consultation with the task force. The disclosure enforcement guidelines established by the department pursuant to this section shall include development of a form for disclosure and the penalties, if any, that may be imposed for failure to disclose. No penalty shall be assessed against an owner for failure to disclose under §26147 when the owner provides disclosure to the tenant in a form that substantially conforms to the disclosure form developed by the department. Local authority to enforce disclosure requirements pursuant to this section shall not apply until the first January 1 or July 1 that occurs at least six months after the department adopts disclosure enforcement guidelines for compliance with §§26147 and 26148. Health and Safety Code §26154.

Reports Back to Legislature

After the department, pursuant to administrative law procedures, submits the proposed regulations developed pursuant to this chapter, the Department of Consumer Affairs, in consultation with representatives from the State Department of Health Services, the Department of Industrial Relations, and members of the task force convened by the department pursuant to §26101.7, shall consider and report on the need for standards for mold testing professionals and mold remediation specialists. Health and Safety Code §26155.

Implementation

The Act shall be implemented only to the extent that the department determines that funds are available for the implementation of the Act. Health and Safety Code §26156.