Word on the Street

• New Asthma Agenda: The Environmental Protection Agency recently announced a new research plan focused on the links between environmental pollutants and asthma. EPA Administrator Christie Whitman named asthma as one of the EPA's top health priorities and stated that given the prevalence of asthma in the United States, more research into factors like genetic susceptibility, health and socioeconomic status, lifestyle and activity patterns must be undertaken. According to Whitman, the EPA's new strategy calls for more immediate research into how asthma is induced and worsens, what makes some people more susceptible to it than others and what are the biggest risks for people who might get it. John Kirkwood, president and CEO of the American Lung Association, told the Associated Press that ALA has long acknowledged the link between the environment and asthma.
• Government Shutdown: The U.S. Interior Department suddenly closed its main building in Washington, D.C., on the morning of Friday, Nov. 1, after tests found high asbestos levels inside a mechanical room and the cafeteria. Building administrator Tim G. Vigotsky said that although the exposure levels were minute, he wanted to err on the safe side for 2,300 workers. He and building administrators forced them to evacuate the building in the middle of their day.
  When everybody was out, a team of 21 workers was called in for what Vigotsky termed "the most extensive air sampling ever done." First, industrial hygienists conducted 216 air sampling tests throughout the building, using the phase contrast microscopy method. Of these, all but one indicated negligible fiber levels. Only one sample, taken in a remote sixth-floor office, showed an elevated fiber level but that the fiber wasn't necessarily asbestos.
  "Any prudent person would say that’s hardly cause for alarm, however, we still went forward to test to see if it was asbestos there or anywhere else in the building," Vigotsky said. Thirty additional tests using the transmission electron microscopy method came out negative. "At that point, it was clear the building was extremely safe to reopen that Monday," he said. However, the basement remained closed so that cleaning work could continue.

• Mold Loss Prevention: The Foundation of the Wall and Ceiling Industry has teamed up with the Indoor Air Quality Association and the Chelsea Group, Ltd. to offer a very practical and focused course for wall and ceiling installation subcontractors.
  This two-and-a-half-day course is designed to educate field personnel how to prevent mold damage during construction through good communications and construction practices.
  The course will take place Jan. 28-30 at the Hyatt Regency Tampa in Tampa, Fla. Course fees are $395 for members of IAQA and FWCI, and $550 for others. This seminar will teach attendees how to identify mold and how to resolve mold problems should develop on site. At the end of the course, attendees will have the option to take an examination administered by the Indoor Air Quality Association.
  Those who pass the examination will receive a Mold Loss Prevention certification from the Indoor Air Quality Association, the leader in professional certifications related to mold and the indoor environment. Certification fees are $150 for IAQA and FWCI members, and $295 for all others.
  For more information, contact the Association of the Wall and Ceiling Industries International at (703) 534-8300, or IAQA at (301) 963-3804.

• Lead Paint Mistrial: A judge declared a mistrial in late October in a groundbreaking lawsuit in which Rhode Island tried to hold paint manufacturers responsible for the health hazards of lead-based paint. The suit is the first time that a state has filed such a claim against paint manufacturers; as such, it is being closely watched by jurisdictions that have filed similar lawsuits. According to the article, the jury was charged with determining whether lead-based paint, which the federal government banned in 1978, posed an immediate or potential public hazard.

• IAQ Innovation: The winners of the inaugural AHR Expo Innovation Awards, representing a broad section of HVAC&R products from leading manufacturers around the world, were recently announced by the program sponsors.
  Designed to encourage product innovation, the competition is jointly sponsored by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Air-Conditioning and Refrigeration Institute and International Exposition Company, producers and organizers of the AHR Expo. The winners were selected from among the products submitted by AHR Expo exhibitors in seven categories.
  PureChoice Inc. and their PureTrac Air Monitoring System is the 2003 winner in Indoor Air Quality category. Honorable mentions in IAQ were given to: Bonded Logic Inc. for Ultratouch Natural Fiber Duct Liner; Isolate Inc. for ISO-HEPA/UVC-500R; National Environmental Products LTD Inc. for SKR Domestic Humidifier; and Rotronic Instrument Corp. for Roline L.
  Other categories receiving awards were heating, cooling, refrigeration, ventilation, energy, and instruments, tools and software. The awards will be presented at a special AHR Expo Media Breakfast Jan. 27.

• LEEDing The Way: Sixty-five buildings representing 51 companies and organizations have been selected for participation by the U.S Green Building Council in the LEED for Existing Buildings pilot program. These buildings comprise more than 17 million square feet of floor space. Although commerical buildings represent one-third of the participants, the pilot also includes schools, government buildings, university facilities and a hospital.
  The Leadership in Energy and Environmental Design program, established by the USGBC, the building industry’s leading authority on sustainable design and construction, was officially launched in the Spring of 2000 with the introduction of its first building rating standard, LEED 2.0 for New Construction and Major Renovations. LEED EB was developed to recognize and certify environmental performance in the more than 4.6 million buildings already standing.
  Building owners that would like their building project to be considered for participation in the LEED EB pilot program may go to www.usgbc.org for more information.

Indoor Environment Connections doesn’t really have a "Man of the Year" award, but if we did, it would have to go to mold. It’s been everywhere: where people work, where they go to school, where they live, and even the hotels where they stay on vacation. It’s reared its ugly head onto the front pages of newspapers, the covers of magazines and onto television news broadcasts. Mold has become somewhat of a celebrity, even naming Ed McMahon one of its many sidekicks.

2002 has been a landmark year for indoor air quality. With the proliferation of cases of exposure to mold toxins and claims of illness from exposure, the media have really brought the topic of IAQ to the forefront.

This has indeed made the public more aware of what’s inside buildings. The backlash of this, however, is a flood of people coming into the IAQ marketplace with inadequate training. These are people described as "out to make a buck" in the lucrative industries associated with indoor air quality.

On the other side of the coin, a positive benefit is the development of more and more training and certification programs throughout the industry. While some certifications may be suspect, the emphasis on training is long overdue.

In this issue, members of IE Connections’ Editorial Advisory Board, representing the various professions in the IAQ marketplace, reflect on 2002 and provide their thoughts on the year’s best and worst events.

Best Thing: Growing public concern about "toxic" mold.

Worst thing: Growing public concern about "toxic" mold

Mold is driving the IAQ marketplace, and with concern about mold, many other IAQ issues have come to the top of the pile. This is a good thing. And it looks like the concern is taking root and may hold long enough to boost our fledgling industry off the ground floor. On the other hand, it has been somewhat of a bad thing in that the public concern has sometimes reached the level of hysteria and that concern has gotten out in front of the science. It has also been somewhat of a bad thing since it has drawn some unscrupulous vendors and service providers into the industry. It is important that the mold concern not be simply discredited, which might cause the entire IAQ bubble to burst.

The effort of Congressman Conyers on the Melina Bill (HR 5040) has been valuable in raising the bar for all aspects of the mold business and, with it, the IAQ industry in general. Along with several state actions, led by California, this effort seems to have persuaded at least some of the leaders in the real estate community that they must begin to pay some attention to this issue. That is a good thing.

In my view one of the most encouraging things to happen in the IAQ marketplace in 2002 is that building owners are increasing likely to take occupant complaints and obvious moisture & mold problems more seriously than in the past when denial was more common. This trend will reduce the likelihood of future problems escalating. 

One of the worst things to have happened is the continuing lack of standards and accepted protocols for diagnosis.

The best thing that has happened to the indoor air quality marketplace in the last year is mold. After all, mold has been christened by the media as the latest IAQ hot topic, and the desire for mold inspection, testing, measuring, and remediation has resulted in new and profitable businesses being created. With all the publicity, more and more people are realizing that pollutants in the indoor air could be making them sick.

The worst thing that has happened to the indoor air quality marketplace in the last year is also mold. This is because much of the media coverage is designed to sensationalize the topic and frighten the public – so much so, that the word "mold" always seems to be preceded by the adjective "toxic." Thus, homeowners and building managers are scared to death of any minor infestation that might possibly be toxic mold, and they often ignore other health issues, such as combustion byproducts, VOCs, second-hand tobacco smoke and poor ventilation.

In my opinion, the worst thing that has happened to IAQ in 2002 is that we still have no definitive resolution on what we can call "quality indoor air." While several organizations have put forward guidelines or suggestions as to what building owners and operators should do in order to assure clean indoor air, we are still far from a determination of what constitutes this quality. We need consensus on what to test for and the maximum allowable concentrations in the indoor environment and how to do the testing to in order to provide the building owner/operator with accurate and helpful information.

The best thing to happen to IAQ in 2002 is ASHRAE Standard 62 recognition that ozone levels expected to exceed 0.160 should be removed from outdoor air before it is introduced to the indoor environment and that minimum efficiency particulate filtration should be used for all air in a building. This goes far to finally recognize the problem of ozone and particles in the indoor environment. We would hope that this would lead to other steps forward by ASHRAE Standard 62 to protect individuals in commercial buildings.

The same entity – mold – is both the best and worst thing that has "happened" to the IAQ industry in 2002. What has "happened" is not at all related to moisture problems or mold itself. Mold is a constant. What has changed in the past year or so is the manner in which the risks of mold amplification have been assessed and communicated. The result has been the development of "mold paranoia." So-called "toxic" mold has become a part of many people’s everyday vocabulary and fears. The paranoia engendered by the discovery of previously ignored yet now "toxic" mold is driving an economic stage play that would qualify as a comedy if it did not also have a tragic component. No, I am not referring to actual injury or serious disease. What is tragic is the effort "advocates" are making to transform an everyday allergen into something as dangerous as radioactive waste.

Huge sums of money are changing hands. From a strictly monetary point of view, this is the "best" thing that has been happened to the IAQ industry this past year. Unfortunately, there are much better places for the purchase of IAQ-related improvements to our lives. The lost opportunity costs related to the wild overspending we have seen in 2002 on mold are huge. More focus is needed on the real, rather feared adverse health effects related to mold. Science is being ignored and the public’s fear is being fanned by all types of professionals with a variety of motives ranging from true concern to self-promotion and simple greed.

Worst thing: The March 14 letter on antimicrobial use in HVAC systems, by Marcia Mulkey of the U.S. EPA, is my nomination for the worst thing that happened in the IAQ marketplace during 2002. Just when the industry needed every tool at its command to deal with the rapidly escalating mold challenges, one of the key sets of tools, antimicrobial products, if not taken away were placed under a cloud of doubt and confusion.

Best thing: At the same time, this letter represented an important turning point for both EPA and the industry. For years, EPA staffers have spoken about their concerns with HVAC system uses but no official guidance has been forthcoming. Users in the industry have expressed frustration with what they saw as vague confusing and sometimes seemingly contradictory label directions. Manufactures have been unable to obtain clear direction on what data should be generated to support HVAC uses and report difficulty in getting agency approval to change label language.

The biggest news is the insurance people getting out of covering mold claims. This is great news because the easy money is gone. Now we are dealing with real money – yours and mine; insurance money was always viewed as someone else’s. Now, attorneys are wary of taking mold cases on contingency. They actually have to work for their money.

The biggest news is that systems thinking has been discovered by the people who run the big builders and the big developers. The terms "building science" and "building physics" are code words for systems thinking and are used in the context of problem avoidance during design, purchasing decisions for products and risk management assessment. This systems thinking related to avoidance of indoor environmental problems at the finance, design, specification and purchasing stages might actually catch on. Even the architects are picking this up. Who knew?

IAQ and 2002 can best be summed by the adage, "It was the best of times; it was the worst of times." Never before in the history of the IAQ industry have so many eyes become focused on the importance of IAQ in such a short period of time. Each specific disciplinary component of the IAQ puzzle has been awakened, and the dawn of the IAQ industry is truly behind us. It is a time when those who have been entwined in the evolution of this environmental event, whether as comrades or competitors, have become forever unified in the common goal to solidify IAQ as a valid and important environmental issue.

And yet, at what seems to be very moment of our achievement, we, the orchestrators of this emerging industry, have also created the essence of its undoing. As industry leaders, our failure to have in place an appropriate outlet for public knowledge and education has resulted in gross misrepresentations and misunderstandings of basic IAQ fundamentals. Somewhere in the depths of hysteria, extremism, and fraud emerges common sense. As the pendulum begins to swing back to more a more rational and appropriate approach to IAQ, extreme positions at the other end of the spectrum are emerging that essentially question the very credibility of the industry. Essentially, we have created that which could destroy us. Education, or the lack thereof, continues to be the single event that is fostering the seesawing of IAQ extremism.

The best, I would have to say, is the PCR testing for fungi. Researchers at the U.S. EPA have developed (and patented) a new DNA-based real-time quantitative polymerase chain reaction technique, and now labs are starting to offer it. PCR appears to be the wave of the future for mold testing. It will be interesting to see how this plays out in the marketplace.

The worst is the rush of people into the mold testing and remediation field. There’s nothing wrong with starting out new, but I see a lot of reports put out by firms that clearly have never taken any mold training courses. At least do your homework before dashing into something new.

Having spent nearly 30 years in the fire and water damage restoration industry and watching it grow and mature from its fledgling fragmented infancy to an exciting, multi-faceted specialized discipline, I salute a recent milestone event as one of the best things for the year 2002. The Association of Specialists in Cleaning and Restoration, a 60-year-old trade association representing the cleaning and restoration industry, restructured their organizational framework.

In my opinion, one of the worst things to happen in the last year in the IAQ Industry is the proliferation of mold-related certification programs perpetuated by the battle cry, "Mold is gold!" Having said that, I do believe this is a double-edged sword. On the one hand, more available training is a good thing; on the other hand a lack of standardization affects quality and creates confusion in the marketplace. However, this process is a necessary evil of a rapidly evolving phase of the IAQ industry. Hopefully, time and industry cooperation will consolidate a body of knowledge into a consensus credentialing designation.

On the plus side, publication of EPA’s mold guidance documents establishes a much-needed frame of reference, both for the industry and for the public. EPA’s Mold Remediation in Schools and Commercial Buildings offers how-to guidance based on sound scientific principles and practical considerations, free of any special interest viewpoints. A Brief Guide to Mold, Moisture, and Your Home also offers sound guidance that can be readily understood by non-technical audiences.

On the minus side, there are still too many companies attempting mold remediation that have, apparently, neither read the available guidance nor attended training of any kind.

The bad news, in my humble opinion, concerns the fact that a large number of microbial remediation workers and supervisors became "certified" in 2002. The glut of "certified" individuals will essentially render all of these "certifications" meaningless in the eyes of their customers. The remediation industry is more fragmented then ever, and consumers are confused as to who is the most highly trained and proficient remedial worker or supervisor. (This confusion is bad.) Who exactly is the smartest – the CMR? the CMRS? the AMRT? the (fill in the blank)? Just exactly who? I believe that many remedial contractors and workers are asking themselves these questions as well.

The good news is that the current system must – and will – change as the market gets smarter and more astute. (This is good.) Consumers will start asking hard (and legitimate) questions about just what a given "certification" qualifies a remedial or restoration company to do or not do. Smart consumers will begin to question the validity of the contractors "certification" and, by extension, the qualifications of those who "certify." The current system will change, and bridges will be built. There is a better way. Stay tuned.

There is no way to even think about the significant incidents, factors, or trends over the past year or so that have impacted the IAQ issue without mentally tripping over "9/11" and "mold." One cannot consider the matter without recognizing the significance of the loss of human life, well being of our citizens, and devastation of property. In the case of 9/11 terrorism, the outcome was catastrophic in proportion, resounding in the repercussion, and instantaneous in consequence. In the case of mold in buildings, the outcome is catastrophic in proportion, resounding in repercussion, but slow and insidious in timing and consequence. The outcomes are identical in that they negatively impact the safety and well being of the occupants, the asset value of the building stock, and the productivity and ROI of the affected enterprises. My personal of view of the outcomes of these disastrous events provides a more detailed "take" on the outcomes of these drivers from an IAQ perspective.

Understanding Building Performance. After the initial hysteria of "close the outdoor air dampers" subsided, the wisdom of ASHRAE (in their position document on "exceptional environmental challenges") and the later NIOSH guidance document prevailed. The outcome from this driver is a long overdue heightened awareness of the vulnerability of buildings to the risk of external environmental stressors—and the need for the building operation to respond to them. The Role of Filtration. If there is a truly interesting and significant outcome of the CBT issue, it is a reawakening to the value of the "air cleaning" portion of the definition and purpose of "air conditioning." NIOSH will announce later this month their new filtration document to inform and guide building owners in the application of filtration in public buildings. The Real Cause of Mold. Without debating the issue of mold per se, my perspective is that mold is not the issue—the issue is water. However, the saving grace of the furor over mold is that owners are becoming painfully aware of the cost of neglecting or ignoring water sources and moisture management in condition spaces. The Energy Issue. It may take another war in the Middle-East to remind us that the real issue behind IAQ is still energy. These impact the subsequent IAQ performance of the building.

The best thing this year was that none of the ill-conceived federal legislation passed into law. Establishing a "permissible exposure limit" to mold is ludicrous. This would be as useless as developing an acceptable exposure to mosquitoes or cockroaches. Like any pest, mold will continue to grow if favorable conditions are allowed to fester. Regulate the environmental conditions, not the pests that show up. It’s called public health.

 I believe we will look back on 2002 in the not-so-distant future and ask ourselves, "What went wrong?" The sudden, uncontrolled explosion in new consulting and remediation firms, with the unabashed "gold rush" mentality has brought with it consumer panic, legislative bungles and financial danger. The oversimplification of the complex issue of microbial contamination has led to the insurance industry making knee-jerk decisions to discontinue writing new homeowners policies.

The nation’s largest home insurer has decided to stop doing new business in Texas, California, New York and Florida and is attempting to exclude, or severely limit, coverage for mold damage even when it is the result of a covered claim. Of even more concern is the listing of homes on the CLUE database with "mold claims." Once a home is labeled as high risk for mold it may become uninsurable for any price. The impact of making a single mold claim may be the total loss in a home’s resale value. If a home cannot be insured, it cannot be mortgaged. Most homeowners cannot afford to purchase a home without a bank mortgage, making the home with a mold claim practically unsellable. Since homes are often the largest investment of American families, the effective loss in value of a home will destroy the assets of many families.

The best was ASHRAE’s awareness that some of its current design standards may actually contribute to mold growth in buildings by providing an over emphasis on energy conservation verses moisture control.

The worst was the ASHRAE board’s decision to squash the recommendations of its own Standard 62 Committee to provide design guidance for the control of – and protection from – secondhand smoke in buildings.

One of those buildings, which used to house the Somerset County District Court in Princess Anne, Md., was the subject of an article by Shoemaker in Filtration News earlier this year. (The state has since moved the court’s location.) There was a patient from that building whose repeated exposures to the courthouse caused acute jaundice and near liver failure. That patient would have died, said Shoemaker, had it not been for a certain medication that saved the patient’s liver.

Now that the new year is almost upon us, here’s a look back at the 10 most interesting stories in the indoor air quality marketplace during the past year as chosen by the editors of IE Connections:

Honorable Mention. OSHA IAQ Rule Finally Grounded

We would be remiss in not at least mentioning the Occupational Safety & Health Administration’s early 2002 decision to quietly close the book on its 1994 IAQ proposal. Thanks to a provision to ban smoking in all workplaces, the proposal was the agency’s most commented proposal in history and drew thousands to Washington, D.C., for congressional hearings. Since many state and local governments and private employers have already taken action to curtail smoking in public areas and workplaces, OSHA officials said there was little reason to keep the proposal on the books. Comments on the non-smoking portion of the IAQ proposal have been called "sparse." And for those that have been around this industry, the proposed IAQ rule’s fanfare is an eerie foreshadowing to this year’s No. 1 news story.

What do Arizona, California, Connecticut, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York and Pennsylvania all have in common? Well, they all now have laws concerning mold or introduced legislation this year. Fifteen other states are expected to join them next year. Couple that with continued growth in general IAQ legislation and children’s health issues, and you have a nation awash with public awareness on these issues. Lawmakers don’t often introduce bills unless there’s outcry coming from somewhere in their constituency. We expect California to continue to lead the way on the mold front when its task force issues a report early in 2003.

This year marked unprecedented growth among industry associations, certification programs and events. The Indoor Air Quality Association now boasts 1,700 members, while the American Indoor Air Quality Council is now over the 3,000 member mark. Other groups were launched in 2002 for more mold and IAQ specific concerns, including the Indoor Environmental Institute, International Association of Mold Remediation Specialists, Indoor Environmental Standards Organization and International Mold Management Association, just to name a few.

Conferences also had a banner year with record-breaking attendance. The National Air Duct Cleaners Association changed their annual meeting name and format and drew more than 600 attendees in Las Vegas. The annual Healthy Indoor Environments Conference, produced by IAQ Media Group and the University of Tulsa, drew over 600 industry professionals and another 350 consumers from the Austin, Texas, area for a first-ever Consumer IAQ Forum. The largest IAQ event by far was the international Indoor Air 2002 held in Monterey, Calif. Organizers attributed the 1,200 attendees to the conference’s research presentations and the fact the event was held in the United States. IAQA also doubled its 2001 attendance to 550 and hosted keynote speaker Rep. John Conyers Jr. in October.

Like the name of the IE Connections newspaper section, lawsuits and liability remain a strong driver for this industry. And you could say there’s never been a better time to be an indoor environmental lawyer. You’re just turning work away. Then again, there’s never been a worse time to be an indoor environmental lawyer, says Michael Greene in this issue. There’s just too much work on these cases to be done as the burden of proof gets higher and higher, especially in jury trials. Among the bigger cases this year pitted an insurance company against a retired Sacramento, Calif., man to the tune of an $18 million verdict, and a New York City apartment building owner against the building’s tenants with an undisclosed (and we hear huge) settlement.

Just how many victims are there of poor IAQ and "toxic" mold. Plenty – as the general media and the Internet will attest to. The sheer number of daily news stories and Internet Web sites and list serves is staggering. In addition, we’re seeing many new organizations popping up to serve the needs of this constituency, including Melinda Ballard’s Policyholders of America, National Toxic Mold Coalition and Toxic Mold Survivors. We’re sure to hear many more of their stories in the future.

Perhaps the most important federal document to come out in a long time pertaining to our industry was Dr. Stephen Redd’s testimony on the state of science on molds and human health to the House Financial Services Subcommittees in July. Redd of the Centers for Disease Control & Prevention has taken the lead in the federal government to say the science isn’t there yet on mold and human health, but it will be. The agency is working with other federal agencies, state and local governments, the World Health Organization and the National Institute of Medicine to figure out what the relationship is so that they can coordinate a public health response.

When Hillary Clinton was first lady, who would have dreamed she would go on to become successful senator and advocate of such issues as children’s environmental health and healthy schools. She was even supposed invited to make a presentation at our industry’s Indoor Air 2002 this summer. As part of the healthy and high performance school amendments that she created and that are now part of the law, Leave No Child Behind, Clinton has placed a personal bet on the indoor environmental future of this country’s children. Along with the impressive work of Claire Barnett and the Healthy Schools Network this year, healthy school environments may soon become a reality.

What began with the World Trade Center tragedy and anthrax deaths and scares has led to the federal government and industry trade groups taking a hard look at indoor bioterrorism and producing guidelines to battle the problem. To date, industry groups such as ASHRAE and ACCA have issued guides and put on workshops to education building owners and managers on how they can keep their buildings safe. CDC and the Department of Health and Human Services have also produced guidance documents. In an interesting business twist, the IAQ industry has also responded to the war by developing products that can supposedly kill anthrax and by adding lab services. Stay tuned.

You can say this for the latest battle between the states and insurance companies, both sides are definitely educated about mold issues now. This year has been filled with state-sponsored public forums as many decide whether insurers can pull out or reduce their liability for water damage claims. Many insurers have simply thrown up their hands and refused to renew homeowner policies or write home coverage altogether. After their public forums, Texas even formed a task force to write their own mold guidelines hoping that would ease tensions between the insurers and homeowners. If this continues on much longer, this issue has economic disaster written all over it.

Schools, asthma, antimicrobials, children’s environmental health, mold, air testing at (and around) the World Trade Center site. There’s currently a lot on the Environmental Protection Agency’s plate right now for a non-regulatory agency. EPA Administrator Christie Whitman just announced plans to expand their asthma program and research plans, and their efforts to educate schools about indoor air was kicked up a notch earlier year when Whitman began touring healthy schools. The agency also recently wrapped up a public comment period for their new healthy school design guide, and launched a new informational Web site. In the mold arena, the agency followed up on their popular remediation guide for schools and commercial buildings this year with a pamphlet for consumers for mold in homes.

And the No. 1 interesting story in the indoor air quality marketplace during the past year:

Much like the proposed OSHA IAQ rule in 1994, the U.S. Toxic Mold Safety & Protection Act of 2002 turned Capitol Hill into a waiting lounge of experts from both sides of the issue. And to think if a little girl named Melina hadn’t gotten sick from mold exposure in her home, the bill may not have materialized. Rep. John Conyers Jr., a staunch Democrat from Detroit, introduced the bill in the summer after a town hall meeting and several congressional hearings took place. Given the complexity of the issue and timing, the bill did not make it out of committee. Conyers has already said he will reintroduce the same bill next year, but with a GOP-controlled government, we don’t know at this time how far it will get.

This year has become a watershed year for indoor environmental matters involving mold and fungal contamination. Just as the 49ers raced to California seeking that shiny metal, health professionals, homeowners, insurance companies, tenants, landlords, builders and experts are racing to determine the risks of mold contamination to themselves, both physically and economically.

Once again, California has become a key player, this time with cutting-edge regulation, in the form of the landmark California Toxic Mold Act of 2001, or the "California Act." While 2001 saw this significant legislation being enacted, and while large judgements were handed down in Texas, on a nationwide basis, the effects are only truly being felt this year.

This year, regularly repeated media coverage has played a large part in educating the public as to the risks of exposure to mold. Of course, the general media have also been leading culprits in creating many misperceptions among the public as to those risks. Also, insurance companies have seen a significant increase in claims and damages paid out due to water intrusion and the resulting damages incurred in remediating mold. A battle over mold coverage in Texas between the largest homeowner insurance companies and the Texas government has made the Alamo seem like a street fight, as several large insurers have pulled out of Texas entirely. The issue has become so "hot," that several exasperated homeowners resorted to taking literally that hit song of the 1980s, by the rock group the Talking Heads, "Burning Down the House."

What do the events of the Mold Rush of 2002 mean to homeowners, insurance companies, tenants, landlords and builders? In order to prognosticate the next round of the Mold Rush, we must examine in greater detail some of the cases and legislation that will shape the law over the next few years.

The concern of homeowners and victims of exposure to mold contamination has resulted in a panalopy of legislation filed in many states and at the federal level. As noted above, the first legislation of significance to be successfully enacted was the California Act. A more detailed analysis of the legislation can be found in the May 2002 issue of IE Connections.

The first step under the California Act was to have been the establishment of a task force to study, analyze and adopt permissible exposure limits and guidelines for assessment and methods of remediation. Unfortunately, under California’s mode of governance, unless a law is funded by the legislature no enforcement is possible. As of the writing of this article, the task force has not been funded and therefore is not yet formed.

Some progress was made, however, in an amendment passed this year, which permits voluntary contributions. Far fetched, you say? Politics, as they say, creates strange bedfellows, and it appears that there may be some willingness by landlord industry groups and builders to fund portions of the estimated $700,000 necessary for the task force to perform.

While the California Act has received most of the press, another bill has been circulating during the past California legislative session seeking to address the insurance issues associated with mold. Senate Bill 1763 made it through several committee reviews but was pulled and tabled until next year when it is expected to be reintroduced. This bill would direct the Department of Insurance to study the effects on the insurance industry and homeowners of the current Mold Rush.

The California Act has become a model for legislation in other states and at the federal level. The most important legislative action in 2002 has been the filing of the United States Toxic Mold Act (also known as the "Melina Bill") by Rep. John Conyers. The bill moved fairly quickly to its first round of committee hearings and has picked up 29 co-sponsors.

The bill generally contains several very significant requirements in connection with toxic mold. It creates mandatory inspections for rental units and for-sale housing, creates mandatory disclosures, creates licensing requirements for mold assessors and remediators, creates a tax credit for offsetting mold assessment and remediation, and creates a federal mold insurance guaranty program. A more detailed analysis of the Melina Bill may be found in my article in the October 2002 issue of IE Connections.

Other State Bills
As to the states, New York and Massachusetts have circulated in their respective legislatures proposed laws that are similar in content and organization to the California Act. In Massachusetts, Senate Bill 2353 would authorize a task force to consider toxic mold exposure limits in indoor environments, assess public health risks and adopt protections, among other things.

The bill has been through several committee reviews but was replaced by Senate Bill 2406, which has been referred to the Senate Committee on Ways and Means. The bill follows much of the content and incorporates many of the goals of the California Act but is significant in that it would render government liable for defective inspections on buildings that lead to toxic mold contamination. While many rail against the effectiveness of local building inspectors, this provision, particularly given the rapid growth of mold cases, will result in the bankruptcy of numerous municipalities.

In New York, Senate Bill 5799 and Assembly Bill 10610 would create the Toxic Mold Protection Act and, like the California Act, would create a task force to advise the department of health on exposure limits, assessment standards and remediation. The bills are similar in content and goals as the California Act and are currently in committee.

Other states are not to be left out.

• In Arizona, Senate Bill 1432 would create a legislative study group to consider the financial, environmental and health-related effects of indoor commercial and residential mold contamination.

• In Maryland, Senate Bill 283, establishing a Task Force on Indoor Air Quality, has been adopted.

• The New Jersey Senate passed Senate Resolution 77, which "urges" the state to develop methods to help residents identify mold and to develop strategies that would address it. For those not familiar with this type of resolution, it is the legislative equivalent of "kissing your sister."

• Pennsylvania adopted Senate Resolution 171, which, along with House Resolution 434, directs the Department of Insurance to create a task force to study the effects of toxic mold.

• Connecticut sought to adopt a far-reaching statute governing mold in schools, but the bill was defeated in the legislature.

While legislatures discussed regulating mold, the lobbying continues in many states between the insurance industry and the respective insurance commissioners with respect to the exclusion of mold coverage from standard homeowner insurance policies. In Texas, several large insurers left the state as a result of failing to achieve the premium rate structure and protections from mold claims that they had sought.

The Florida insurance commissioner has held several public forums around the state to address the concerns of the public and the insurance industry as a result of mold claims. It is expected that resultant legislation will address the risks to the insurance industry.

Cases involving mold have been increasing in number throughout the country, not just in areas known for high humidity such as the Sun Belt and the Pacific Northwest.

Unfortunately, the cases do not present a picture of consistency and, as such, there is no body of "toxic mold law." The cases consist of a hodgepodge of bad faith claims against insurance companies, disputes over coverage under homeowner policies, design and construction defect cases, and classic tort claims by those injured by exposure to mold. Until legislation has been enacted that creates specific standards for mold exposure limits or assessment and remediation guidelines or, perhaps, results in mold as a new claim in its own right, litigation will continue to be based upon theories that relate to the ultimate cause of water intrusion rather than to the existence of mold in its own right.

The Ballard v. Farmers insurance case, which generated the current media attention to the mold issue, presents a classic example of a bad faith claim against an insurance company. A significant portion of the judgment awarded to the Ballards by the trial court, being $10 million of the total $32 million verdict, was for punitive damages. The trier of fact decided that Farmers Insurance acted in bad faith in not acting to resolve the mold contamination on a more rapid basis.

Of significance for other cases in many states and at the federal court level, the Ballard court at that time did not admit testimony as to the neurotoxic effects of Stachybotrys chartorum. This strict application of the so-called "Daubert" rule will make it difficult for evidence that is currently being debated in the scientific community to be heard at trial. In simplistic terms, the Daubert rule prevents the admission of scientific evidence that is not generally accepted in the scientific community. The judge in the case is the "gatekeeper" in making this determination.

Given the recent growth in cases and the snail’s pace at which most cases proceed through the judicial system, very few cases have resulted in verdicts that have a reported appellate record. It is difficult to rely on squibs and snippets of information from the media or reporting services that identify cases being filed. This information is often not accurate and reflects the view of the industry group reporting on a particular case. I have identified some cases of interest, if not for any new groundbreaking rule of law or evidentiary value, but to show the trends in litigation.

In Garcia v. the Regents of the University of California, filed in 2001, students residing in a dormitory alleged they were injured as a result of exposure to mold and other contamination. The case speaks for the difficulties in sustaining a class action in toxic mold cases.

Class actions are often employed when there are multiple victims of an incident. A class action reduces the cost of filing separate actions, assists in resolving common issues to avoid inconsistent results and, in part, to place greater pressure on the defendants because of the potential for a large judgment.

So far, most of the class action claims filed in connection with toxic mold torts have failed to have the class successfully certified and accepted by the court. This is part due to the fact that, unlike the proverbial train wreck, mold contamination often does not result from a single accident or common incident. Contamination of several apartment units in an apartment complex are often related to specific problems with each unit and thereby a separate set of facts governing both the liability of the landlord and the resulting injuries and damages suffered by each tenant. Plaintiffs in a mold case often include special classes of people who are hypersensitive or who are otherwise suffering from a unique condition that may make them more susceptible. If the class is "broken," the cost of trying numerous separate cases increases dramatically, and yet the potential aggregate recovery is no greater than that sought by the class as a whole.

While 2002 did not indicate any particular change in the view of class actions, the potential for use of class actions for groups of plaintiffs, whether employees on a factory floor or office workers, where a common incident may be proven, must be carefully watched. To date, class action certification has been denied in mold exposure cases.

Other recent cases both filed in 2002 and prior which are still circulating through the courts indicate that pattern of types of claims and the potential expanding liability for those who own, manage or construct buildings, whether office buildings, houses, apartments or factories.

Celebrity Cases
For example, in Jenses v. Amgen Inc., filed in late 2000, the plaintiff sought a $2 million recovery for exposure to mold in an Amgen building. In J.J. Acquisition Corp. v. Pacific Coast Properties, the employees of the California newspaper sought $10 million, for injuries resulting from exposure to mold, from the landlord in the building. In Spectrum Community Association v. Bristol House Partnership, homeowners sued the developer and contractors, based upon allegations that construction defects of the building caused the growth of toxic mold, resulting in injury. In Andrejevic et al. v. Board of Education of Wheaton-Warrenville School District No. 200, a class action was filed on behalf of students, parents and teachers, seeking $67 million for injuries caused by exposure to mold, which allegedly arose from a flood that occurred at an elementary school.

One of the more celebrated (or at least celebrity-filled) cases is Brockovich v. Robert Selleck, 2001, in which Erin Brockovich, of the movie of the same name, filed a claim for injuries resulting from construction defects against the former owner and the builder of the home. Brockovich’s claims were outlined in the CBS "48 Hours" story, Silent Killers: Toxic Mold.

Another celebrity victim alleging injury from exposure to mold is Ed McMahon, formerly of "The Tonight Show" and "Star Search." McMahon filed suit in 2002 against American Equity Insurance Co., a unit of Citigroup, and against several restoration contractors charged with remediating the flood and mold contamination. Despite headlines such as "Death Mold Killed My Dog," which are more reminiscent of "The X Files" than they are an accurate portrayal of the issues,

McMahon’s case indicates a new trend, in which restoration contractors and remediators are now becoming targets for their failure to solve problems. Given the explosion of companies getting into the mold assessment and remediation industry, caution is warranted in instituting legal proper protections. The effect of the McMahon case is also noted for its effect on the financial markets; see Business Week’s "Can Toxic Mold Spoil a Stock Offering?" for a reasoned analysis of the potential economic damage resulting from large verdicts against insurance companies.

In one of the most startling cases as to damages being sought, Cheneski v. Glenwood Mansville. et al., the plaintiffs are seeking as much as $180 million for injuries and personal property damage caused by exposure to mold while living in an apartment owned by the defendant. The fact that this case was filed in New York shows that there is no geographical bias in mold cases. In another New York case, Robert E. Coiro et al. v. Dormitory Authority of the State of New York, the plaintiffs are seeking punitive damages and other damages in the amount of $50 million.

If a pattern can be found in these cases, one is that mold claims are not limited to actions by homeowners against insurers and contractors. Another pattern is the ever-increasing amount of damages being sought.

Lastly, builders, developers, landlords and employers who operate in areas that are not particularly known for long periods of humidity cannot feel that they are immune to indoor environmental problems and resulting litigation. The bottom line for anyone who owns a building or maintains a building, or for those who design or construct buildings, is that careful attention must be paid to improve the prevention of water intrusion and to remove water and mold promptly when discovered. Water-resistant design and construction details should be contemplated. Given that mold can begin to grow as soon as 24-48 hours after exposure by various building components to moisture, problems cannot be ignored or waived off but must be promptly addressed by skilled professionals.

The Mold Rush is on. And be careful, as I predict that 2003 will be more like the OK Corral for those who choose to ignore the risks of toxic mold.