WORD ON THE STREET

• Another California Mold Rule: Following a united effort by the California Chamber of Commerce and a number of other business and industry groups, the Cal/OSHA Standards Board recently adopted a mold regulation focusing on prevention rather than a punitive approach unsupported by science. With a 5-0 vote, the board approved consensus language supported by business, labor, insurance and health advocates that focuses on correcting damage from flooding or leaks as a way to prevent mold growth.

The original version of the standard was rejected by the board as too extreme because it labeled all molds as toxic. Instead, the regulation was revised to address workplace mold in same manner as any other workplace sanitation issue. The new regulation states, “When exterior water intrusion, leakage from interior water sources, or uncontrolled accumulation of water occurs, the intrusion, leakage, or accumulation shall be corrected because of the potential for these conditions to cause the growth of mold.”

Noting the new standard was a sensible approach to mold prevention, board members commended the advisory committee’s work on creating the consensus standard. The California Department of Health Services also wrote in support of the new mold standard.

• Aerotech Co-Founds Association: A new association to set standards and protocols for the indoor environmental industry has been started as the Indoor Environmental Standards Organization (IESO). The group’s new website is www.iestandards.org and the headquarters will be in Minneapolis, Minn. The organization will begin by helping home inspectors learn how to inspect homes for fungal contamination, and how to report it within inspection reports for real estate transactions. David Fetveit, a principal at Aerotech Laboratories Inc., is president of the new association. The organization initially called itself the Indoor Environmental Quality Association, but agreed to select a different name after claims of trademark infringement by the Indoor Air Quality Association (IAQA).

• Sporicidin Beats Bleach: According to researchers at the University of Maryland, Sporicidin Disinfectant Solution, "is more effective than household bleach in controlling common mold fungi found in building materials, including Stachybotrys chartarum, Chaetomium globosum and Aspergillus niger. These comments came from study leader George A. Bean, PhD., a professor in the Department of Cell Biology and Molecular Genetics at the university. Sporicidin officials say the findings are significant, "because they update recommendations from the Centers for Disease Control and Prevention (CDC) which has recommended that most molds can be treated by cleaning with bleach and water." Sporicidin was also highly rated in the study for its residual effect. The EPA-registered disinfectant has recently gained popularity in the remediation market; in May, Servpro Industries designated Sporicidin as a required stocking item. Victor Jones, Servpro's product marketing division manager, shipped every Servpro distributor a gallon of Sporicidin.

• New Duct Cleaning Association: The first meeting of the newly formed International Duct Cleaning Association (IDCA) has been scheduled for August in Branson, Mo. A website for the fledgling organization with conference details will soon be posted at www.airduct-cleaners.org. Several founding members of the association are duct cleaners who frequent the Delco Cleaning Systems free bulletin boards at www.dcs1.com.

• 3M Introduces Health and Safety Services (H&SS): A new program has been introduced by 3M of St. Paul, Minn., to help companies meet regulatory requirements and increase productivity by reducing related administrative, workers compensation and health care costs. 3M has set up new web-based services, onsite occupational health screening and medical surveillance, and personal protective equipment administration to coincide with the new program. For more information, visit www.3M.com/occsafety/services.

• Securing Buildings: In a recent television interview with former Secretary of State Alexander Haig, Chelsea Group Chairman George Benda explains how building owners and managers can protect buildings occupants from bioterrorist attacks by transforming current building control systems and operations into more secure and responsive systems. The interview appeared as a segment of World Business Review's (WBR), “Technology & the Environment,” a series hosted by Haig and airing on public and private television networks worldwide beginning late last month.

“Our goals are to protect occupants and maximize the asset value of the building for its owners,” said George Benda, Chelsea Group’s chairman and CEO, during an interview for the WBR series.

The segment also highlights the collaboration of Chelsea Group and its team of highly skilled and experienced health, safety, and building experts who develop preventive and corrective programs relating to chemical or biological weapon attacks.

• Corrections: Last month, we reported on the newly formed AC&R Safety Coalition which includes the Refrigeration Service Engineers Society (RSES), the Indoor Air Quality Association (IAQA), and the Education Foundation of the Plumbing, Heating, Cooling Contractors Association (PHCC). We failed to mention HVAC Excellence, which is not only a member of the coalition but also its organizer. HVAC Excellence is a not for profit organization which establishes standards for both technician competency and education within the HVAC&R industry.

Also, the Disaster Kleenup International Inc. annual convention will be held August 15-17, 2002 in San Antonio. Texas. For more information, call Dale Sailer at (317) 334-7600 or go to www.disasterkleenup.com.

I never had a bill that attracted a constituency before the bill was even introduced,” remarked Congressman John Conyers, Jr. (D-MI) at the press conference where he unveiled The United States Toxic Mold Safety and Protection Act, HR 5040. At the time of the press conference more than 40,000 people had signed an electronic petition in support of the Bill at the Policyholders of America (POA) website.

HR 5040, also known as the Melina Act, is designed to help prevent consumers and prospective home buyers from moving into mold infested homes, provide legal protection and recourse to prospective home buyers and renters who are exposed to dangerous levels of indoor mold, and protect the public by establishing national standards and education programs.

Until HR 5040, there were no federal bills introduced to address indoor mold growth. California is the only state in the country to have passed a law to regulate it. HR 5040 is the result of months of collaboration by toxic mold victims, physicians, public health advocates and IAQ industry experts.

Until HR 5040, there were no federal bills introduced to address indoor mold growth. California is the only state in the country to have passed a law to regulate it.

HR 5040 was introduced with seventeen other original co-sponsors, including senior House Democrats Henry Waxman, David Bonoir, Rosa Delauro and Tom Lantos.

Several individuals, including families and children who have developed debilitating chronic health conditions and are experiencing financial ruin, spoke at the press conference about the urgent need for Congress to pass the “Melina Bill.” Rep. Conyers became aware of the severity of toxic mold poisoning from his staff assistant in Detroit, Pam Walker, whose 9 year old daughter, Melina, lost 70 percent of her lung capacity a short time after moving into a mold infested home.

When Walker told Rep. Conyers about her family’s plight, the congressman asked members of his staff to contact EPA to find out the seriousness of the problem. “EPA hung up the phone on my staffer,” remarked Conyers, who added, “and there will be consequences.”

Conyers said, “My office has gotten hundreds of letters from home owners who have unwittingly bought homes contaminated by hazardous levels of mold growth and found that they have no protection under our laws. Toxic mold poisoning impacts people from all walks of life, regardless of income, race, or employment status. Even Ed McMahon was forced to leave his house, and his dog died due to toxic mold poisoning. I expect there to be bi-partisan consensus on this bill.”

Following the remarks by Rep. Conyers, Congressman David E. Bonior (D-MI), an original co-sponsor of the Bill, spoke about the seriousness of the toxic mold problem.

“Washington Elementary in my district has been closed for four months. After years of complaints, toxic mold was discovered and now a remediation project estimated at 1 to 2 million dollars is underway. These kinds of incidents are happening all over the country,” Rep. Bonoir said.

According to Bonoir, the public has only recently begun to understand the dangers associated with mold growth and there are few information resources “The Michigan Department of Health has received 1,200 calls on toxic mold this year, compared with zero in 1994,” he said.

Victims, Physicians and IAQ Experts Speak to the Press

POA President Melinda Ballard moderated the Conyers press conference. “This Bill benefits all Americans, those with and without mold contamination problems, since it will result in insurance premium reductions across the board,” said Ballard.

HR 5040 creates a National Toxic Mold Insurance Program administered by the Federal Emergency Management Agency (FEMA) to protect homeowners from catastrophic losses. The program would operate similarly to today’s Federal flood insurance program. According to Ballard, “when insurance companies no longer have to cover mold claims, they should be able to reduce homeowner premiums.”

Ballard and all of the toxic mold victims who followed her at the press conference spoke of failure and abandonment by their insurance companies. “We want insurance companies to be forced to honor the policies they sell. HR 5040 will make that happen,” Ballard said.

Pam Walker, Office Manager of Conyers’ Detroit office, was the first toxic mold victim to tell her story. The single mom and her daughter were unpacking boxes in their new home when Melina’s illness began. Soon she was suffering daily from multiple asthma attacks. After 24 frustrating days she finally was able to get an environmental inspector from her insurance company to assess the home. Levels of stachybotrys were so high that the family was immediately evacuated.

“Men came into my house wearing Hazmat suits and said we had to leave all our possessions behind,” said Walker tearfully. She said her “American dream” was taken away from her over night.

Like most of the toxic mold victims who spoke, Walker faulted her insurance company for failing to intervene earlier and for not providing coverage included in its policy. “The Melina Bill will prevent others from going through the nightmare my daughter and I have been living,” said Walker.

After her experience, Conyers directed Walker to research the extent of the toxic mold problem. After learning the number of people it was affecting, Conyers began working on the Melina Act.

The Melina Act directs EPA and CDC to develop accurate scientific information on the effects of different molds on human health. The necessity for this action was made clear by Dorr G. Dearborn, MD, PhD, a panelist at the press conference. He said, “ninety percent of physicians in this country no nothing about the effects of toxic mold. The lawyers in this country know far more about it than the medical community.” That opinion was reiterated by several of the toxic mold victims.

Dearborn is Associate Professor of Pediatrics and Biochemistry at Case Western Reserve University’s School of Medicine. Dr. Dearborn is also Associate Chief of the Division of Pediatric Pulmonary Disease at Rainbow Babies and Children’s Hospital in Cleveland, Ohio. Like all the panelists, he applauded Rep. Conyers for proposing HR 5040.

Erik Emblem, Executive Director of the National Energy Management Institute (NEMI) spoke of the importance of HVAC systems in relation to mold contamination. He said that school systems with aging, poorly maintained HVAC systems are a significant reason that school environments often have high levels of mold spores. “We need building design teams to retrofit buildings and to install new HVAC systems in America’s older schools,” said Emblem.

The need for standards for professionals who assess toxic mold contamination was addressed by David Fetveit, Vice President of Aerotech Laboratories, Inc. Fetveit praised the Melina Bill and its provisions for, “standards for preventing, detecting and remediating indoor mold growth.”

In responding to questions from the press about guidance for consumers, panelist Tom Yacobellis, President of the Indoor Air Quality Association (IAQA), said the EPA had several guides on their website about mold contamination. He cited the EPA’s position on HVAC systems contaminated with mold, which the agency advises to shut down and not operate until the mold has been removed. “In air-conditioning systems from Florida to Texas, mold is actively growing,” said Yacobellis.

The Melina Bill

The “Melina Bill,” while designed with consumers foremost in mind, is a landmark bill with sweeping implications for the IAQ professionals and professional remediators. The complete bill can be downloaded from the Internet at www.house.gov. Major Provisions of the Bill include the following:

Title I - Research and Public Education

The Bill directs the U.S. Environmental Protection Agency (EPA) and Centers for Disease Control (CDC) to examine the effects of different molds on human health and develop accurate scientific information on the hazards presented by indoor mold.

The Bill directs EPA and the Department of Housing and Urban Development (HUD) respectively, to establish guidelines that identify conditions that facilitate indoor mold growth and measures that can be implemented to prevent such growth. The guidelines will also address mold inspection, testing, and remediation.

The Bill asks EPA and HUD to establish guidelines for certifying mold inspectors and remediators. The guidelines will help identify hazards associated with inspection and remediation and the steps that should be taken to minimize the risk to human health.
The Bill authorizes programs to educate the public about the dangers of indoor mold. An informed public with be in a better position to avoid mold hazards, prevent mold growth and respond appropriately when mold growth occurs.

Title II - Housing and Real Property Provisions

The Bill requires mold inspections for multi-unit residential property and mold inspections for all property that is purchased or leased using funds that are guaranteed by the federal government. The Bill also requires mold inspections in public housing.

The Bill requires that local jurisdictions modify building codes to minimize mold hazards in new construction.

Title IV - Indoor Mold Hazard Assistance

The Bill authorizes grants for mold removal in public buildings.

Title V - Tax Provisions

The Bill authorizes tax credits for inspection and/or remediation of mold hazards.

Title VI - National Toxic Mold Insurance Program

The Bill creates a National Toxic Mold Insurance Program administered by the Federal Emergency Management Agency (FEMA) to protect homeowners from catastrophic losses. Many homeowners are finding that insurance companies will not offer adequate coverage for mold.

Title VII - Health Care Provisions

The Bill enables States to provide Medicaid coverage to mold victims who are unable to secure adequate health care.

IAQ (And Mold): Legal Issues In Schools

Indoor air quality (IAQ) in general (and mold in particular) in homes, buildings and schools have recently become the subject of increased media attention. There has been a corresponding increase in the public’s perception that mold and other indoor air contaminants are causing illness. On the forefront of this newly developing public interest is the issue of environmental contaminants in schools. EPA has estimated that nearly half of our schools have poor IAQ. Given the ubiquity of mold and the public’s perception of it, mold in schools is generating substantial legal attention. This article explores the growing concern about IAQ and mold in schools and examines some of the legal issues presented to students, parents, teachers and school officials.

EPA officials have stated that poor air quality in schools is a growing concern that can have serious ramifications for the health of students and teachers. “Indoor Air Quality and Student Performance,” U.S. Environmental Protection Agency (8/00), http://www.epa.gov/iaq/schools/performance.html. Potential health effects attributed to mold and other indoor air contaminants include: allergic reactions (such as runny nose, eye irritation, congestion and skin rash), aggravation of asthma, headaches and fatigue. “Mold Remediation in Schools and Commercial Buildings,” U.S. Environmental Protection Agency (3/01), EPA 402-K-01-001. Some of the most common indoor air contaminant sources found in schools include: (1) moisture problems caused by water leaks and poor maintenance, (2) the misuse of pesticides and cleaning products and (3) inadequate building design, construction and materials. In addition, portable classrooms and other “temporary” school structures have also been frequently cited as causing poor IAQ. “Mold Remediation in Schools and Commercial Buildings,” U.S. Environmental Protection Agency (5/02), http://www.epa.gov/iaq/molds/intro.html.

Recent data suggests that poor IAQ can reduce a person’s ability to learn and decrease performance in school. “Indoor Air Quality and Student Performance,” U.S. Environmental Protection Agency (8/00), http://www.epa.gov/iaq/schools/performance.html. Some medical experts believe that children in general are more susceptible to environmental hazards than adults due to their immature nervous systems and still developing vital organs. For example, it is widely accepted that some specific substances, such as lead, have a more potent effect on children compared to adults.

The most difficult issue concerning mold in schools involves developing an appropriate response. When mold is discovered in schools, school administrators and parents tend to panic and over react, thereby causing them to overlook the risks and costs associated with the remediation efforts. The need for immediate remediation should be weighed against the disruption and costs associated with the remediation activities, such as school closings. For instance, officials at an elementary school in Florence Township, N.J., recently closed the building for the remainder of the school year after a mold spot was discovered under paint. The mold discovered reportedly was the size of a quarter. Despite the fact that the mold was identified as Stachybotrys atra, a potentially “toxic” mold, the appropriateness of transferring approximately 470 students to a nearby high school for the rest of the school year has to be questioned in light of what appears to be the limited nature of the scope of the contamination. The school’s closing disrupts students’ lives as they are forced to adapt and commute to another location. In addition, the mere process of commuting 470 students to a new location may involve unappreciated and hidden risks such as a greater likelihood of motor vehicle accidents. Government officials, school administrators and parents should keep communication lines open when IAQ concerns arise and not adopt a knee-jerk reaction before analyzing the facts.

Overview Of IAQ And Mold Litigation

Causes of Action

IAQ litigation can be brought under a variety of legal theories or causes of action. While simple negligence claims account for most of the IAQ lawsuits seen, other common causes of action include: strict liability, breach of implied and express warranties, breach of contract, worker’s compensation, misrepresentation/fraud and discrimination under the Americans with Disabilities Act.

Example: Mold Negligence Claim

The most common theory of liability in mold litigation is negligence. The plaintiff in a negligence claim must establish the traditional legal “elements” of a tort to successfully bring a lawsuit. These four “elements” include proving that: (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the defendant’s breach of duty caused the plaintiff’s alleged damages and (4) the plaintiff suffered damages (i.e. a recognized harm).

Whether a special duty exists depends on the type of relationship, if any, between the plaintiff and defendant. In general, a person is under a duty to exercise the degree of care that a reasonably prudent person in a similar situation would take. For instance, in a mold claim where a student or teacher is suing the school district, a school board and/or building contractor owes building occupants a duty to exercise reasonable care to achieve and maintain a reasonably safe indoor environment.

In IAQ litigation, governmental and industry standards assist in defining the defendant’s appropriate standard of care. For instance, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) sets the general industry permissible exposure limits (PEL) for carbon dioxide with a reference to a particular level measured in parts per million. “Chemical Sampling Information,” Occupational Safety & Health Administration (9/01), http://www.osha-slc.gov/dts/chemicalsampling/data/CH_225400.html.

Determining the standard of care in a mold claim presents a challenging issue. First, “mold” is not a single, discreet or easily defined entity such as carbon dioxide. Instead, it is a living organic structure that may consist of one (or perhaps many) different organisms. Second, mold is everywhere, particularly in wet or damp areas, so its mere presence does not, in itself, mean that some health hazard is present. Third, it is unclear what aspect of a “moldy” situation might cause a potential health hazard: the mold, the metabolites or something else. It even appears that exposure to different types of the same mold species e.g. Stachybotrys, may have dramatically different human health responses. Fourth, like many things, different people have widely different susceptibilities to mold. Remember, a naturally occurring soil mold, Fusarium Veneratum, is the main ingredient in “QUORN,” a vegetarian food product sold in England for the past 17 years and recently available in the United States.

Although politicians are busy trying to regulate mold, its very nature makes such a task prone to failure. Nevertheless, despite the lack of any officially recognized unsafe exposure level, there are three accepted principles: (1) visible mold growing indoors is an indication that a problem (not necessarily a health hazard) exists, (2) buildings should have indoor spore counts that are comparable to those found outside and (3) mold species found indoors should be similar to those identified outside.

There have been many serious health problems blamed on mold, yet proof of causation sufficient to support a legal claim, is often problematic. There are two parts to establishing legal causation: “general” and “specific” causation. “General” causation requires proving that the mold is capable of causing the exact type of injury that the plaintiff suffers while “specific” causation requires proof that mold spores entered the plaintiff’s body and actually resulted in injury. Expert medical testimony is necessary to prove causation. However, other than the traditional allergic response some people develop when exposed to excessive amounts of fungal spores, there has been no proof that mold causes more serious harm. MMWR, March 10, 2000 / 49(09); 180-4 available at www.cdc.gov/epo/mmwr/preview/mmwrhtml/mm4909a3.htm.

Remedies

A person who believes he or she is injured due to mold or any potential toxin must satisfy certain requirements (called “elements of a prima facie case”) in order to justify a legal remedy. Legal remedies fall into two categories: equitable and legal relief. “Equitable” relief encompasses any non-monetary judicial decision such as specific performance and is usually only available when monetary relief would be inadequate. Specific performance may entail an “order” that a person do (or not do) something, such as remediate a building. “Legal” relief is a monetary award in which the disputes between the parties are resolved by the payment of some amount of money. In the “mold” legal arena, suits have been filed requesting each type of remedy and some suits request both types.

Use of Experts in Evaluating Causation 

Under the 1993 Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., and many similar state court decisions, judges are required to exclude expert testimony which does not meet a standard of evidentiary reliability. The Supreme Court held that the trial court must determine whether the expert testimony constitutes scientific knowledge by analyzing the following factors:

(1) whether the theory has be subjected to peer review or publication;

(2) whether the theory can be or has been tested;

(3) whether there is a known, acceptable rate of error, and

(4) whether the theory is generally accepted.

Consequently, the Daubert standard poses a difficult obstacle for plaintiffs in introducing medical expert testimony to prove the causation “element” of their mold-related negligence action.

Nonetheless, published case law shows that plaintiffs have had some success securing the admission of medical expert testimony on the issue of causation. Some mold cases employ a “differential diagnosis technique” of evidentiary reliability. New Haverford Partnership v. Stroot, et al., 772 A.2d 792 (Del. 2001). The technique relies on three factors:

(1) establishing that a toxic substance generally has the capacity to cause a particular injury;

(2) establishing that an individual was exposed to that substance, or specifically in the case of mold, that mold spores were present in the building and

(3) eliminating other potential causes through medical histories or other means.

Two recent cases are highlighted below to show the conflicting results regarding expert medical testimony in mold litigation.

On May 9, 2001, in a highly publicized case, the trial judge in Ballard v. Fire Ins. Exchange, Tex. Dist. Ct., 345th District, No. 99-05252, granted the defendant’s motion to exclude plaintiff’s medical expert testimony regarding causation based on the Daubert factors. However, just two days prior to the trial judge’s decision in Ballard, the Delaware Supreme Court in New Haverford Partnership v. Stroot, et al., 772 A.2d 792 (Del. 2001), ruled that the expert testimony by the same medical experts excluded in Ballard, were properly admitted. Alexander Robertson IV, “Toxic Mold Litigation The Asbestos of the New Millennium,” Mealey’s Litigation Reporter: Mold (8/01).

Case Studies Of Mold In Schools

The following case studies concerning mold in schools show the varying types of causes of action and damages brought against school districts, school boards, and building contractors.

In Sheri Foster v. Denton Independent School District, et al., Texas App., 2nd District, No. 2-01-139-CV, a school

teacher sued a Fort Worth, Texas school district and a ventilation contractor for intentional nuisance and the contractor for negligence in failing to properly maintain and operate the heating, ventilation, and air conditioning (HVAC) system. The plaintiff complained of headaches, nasal congestion and respiratory problems allegedly caused by the mold growing in standing water under the plaintiff’s classroom and spread into the school through the HVAC units. The trial court granted summary judgment to the defendants and the plaintiff appealed. On March 28, 2002, a Texas Appeals Court affirmed the dismissal of the mold claims against the school district after finding that the district was entitled to sovereign immunity. The appeals court determined that the doctrine of sovereign immunity, unless waived, protected the State of Texas, its agencies, and its officials from lawsuits for damages, absent the State’s consent to be sued. The Texas Supreme Court has established that an independent school district is an agency of the State. The Court also dismissed negligence claims against the HVAC company after finding that the company was not required to guarantee the absence of mold contamination when it had no control over the mold growth under its customer’s building.

In Susan Googash, et al. v. West Carrollton Board of Education, et al., Ohio Comm. Pls., Montgomery Co., No. 01 4653, three school employees sued a Dayton, Ohio school board, alleging injuries resulting from mold exposure due to physical defects in the building. The claims asserted include intentional tort, fraudulent concealment and misrepresentation of the hazardous condition. The plaintiffs alleged that the defendants failed to take prompt action to notify them of the potential health risks and failed to take prompt remedial action to rid the schools of the hazard. Injuries asserted include medical costs, future medical costs, disabilities and potentially fatal medical conditions. Moreover, each plaintiff is seeking $2 million in punitive damages. More recently, the complaint was withdrawn and re-filed with five additional plaintiffs.

In Janna Andrejevic, et al. v. Board of Education of Wheaton-Warrenville School District et al., Ill. Cir., DuPage Co., No. 200, No. 99 L 00671, a class action suit was brought against a Wheaton, Ill., school district alleging that numerous children attending a school were exposed to mold and other unhealthy conditions that caused respiratory ailments. The class action allege that students suffered and continue to suffer permanent respiratory ailments, causing their parents to suffer financial losses associated with medical bills and lost wages. The plaintiffs are seeking $67 million for injuries and injunctive relief to close the school until the allegedly poor environmental conditions are remedied.

In Catherine Pittman v. Community Unit School District 303, a Unit of Local Government, Ill. Cir., Kane Co., No. 02-LK-142, an Illinois high school student sued a Geneva, Ill., school district, alleging that mold contamination at her school caused her personal injuries. The claims asserted include negligence, willful and wanton conduct and abnormally dangerous and ultra hazardous activity. The plaintiff alleges that the defendant failed to completely dry the carpeting, disregarded several environmental studies showing elevated carbon dioxide levels and mold counts and failed to maintain a heating, ventilation and air conditioning unit that offered adequate amounts of outside air. The plaintiff alleges that she suffers from bodily injury, medical expenses and emotional distress

The Future Of Mold Litigation In Schools

The future of mold-based claims, both for injunctive relief and for personal injuries, is uncertain. Certainly, steps to correct any potentially harmful condition affecting children are justified. As with other IAQ conditions, however, the mere suggestion that a problem might exist prompts a series of subjective complaints that tend to multiply as word spreads. Sound science and medicine should be called upon to analyze, in an objective way, the actual risks associated with all potentially harmful IAQ situations.

School officials need to be prepared to deal with the media blitz that typically results when mold is “discovered” in a school. Certainly, the health of the school building occupants is paramount. Care must be taken in gathering and interpreting data. Sampling and testing methods need to be examined closely before wide-ranging and costly actions are taken. With the scarcity of public funds available to educate our children, the best allocation of a school department’s budget has to be based on facts and science rather than suspicions and anxiety. The tremendous costs associated with mold remediation should prompt school officials to take proactive measures to control moisture so that mold does not get amplified. How our legal system deals with this depends on the integrity and rationality of the various members of the school community, including reporters from the local media sources. Based on the recent spate of new suits, however, expect to see considerable activity in this rapidly growing area of law.

© 2002 Governo Law Firm, LLC
David M. Governo and (Amanda) Young M. Yun of the Governo Law Firm in Boston, Mass., represent defendants, in Massachusetts and throughout the country, in asbestos, lead, construction, indoor air quality, occupational toxic tort, and complex products liability. Governo has chaired two Mealey’s National Mold Litigation Conferences, and has also authored articles on mold remediation, public relations in mold claims and mold-based bad faith insurance claims. (Amanda) Young M. Yun’s experience in alternative dispute resolution, civil litigation and scientific background provides a broad substantive and procedural foundation for defending toxic tort and complex product liability claims. Yun previously worked as a laboratory research assistant in cardiology and was a bodily injury claims examiner. You can reach Governo by calling (617) 737-9047 or by e-mail at dgoverno@governo.com. You can reach Yun at (617) 737-9267 or by e-mail at ayun@governo.com.

A lack of a clear understanding of reasons for testing and sampling in fungal investigations has resulted in a situation that threatens our industry and is setting up environmental consultants and restoration contractors for unacceptable liability. Popular articles are appearing that state testing or sampling for mold is not necessary. Broad-based sampling and testing without an understanding of sampling strategies and goals has resulted in a lot of confusion and what I consider an inappropriate backlash.

The California Department of Health Services’ document Mold In My Home: What Do I Do? states that they do not “recommend testing as a first step to determine if you have a mold problem.” Most government agencies answering questions about whether testing is necessary are allowing for exceptions to the no testing recommendation. For example, the Texas Department of Insurance has published a guide on their website titled, Effectively Handling Water Damage and Mold Claims: A Consumers Guide. In the document they state: “The Texas Department of Health and the Environmental Protection Agency advise that testing mold prior to remediation is not necessary to determine if remediation is needed. There are, however, other reasons why testing may be desired.” The EPA document, Mold Remediation in Schools and Commercial Buildings, goes on to indicate that testing may be appropriate if there are high-risk individuals or a legal case. So with the exception of cases that may go to court (and how do you predict that?) or where high-risk individuals are involved, the need for sampling has been discounted. I maintain such broad strokes of the pen are short-sighted.

Sure I agree there are many times when sampling isn’t necessary. The mold growing on my shower tile, and in the drip pan of my refrigerator are normal results of the elevated moisture found in those areas, and merely require a routine cleaning to take care of them. I also don’t see any need to sample a flooded home that has been wet for more than a few days. The specification for such a disaster requires no sampling, and the necessary work can be documented just as well with a camera. So, when does testing make sense? I maintain that it makes sense in almost every case where professional demolition and remediation of moldy materials is determined to be necessary. Notice I didn’t say testing is needed to determine if the remediation is needed. The need for remediation can and should typically be determined from a visual inspection, odors, history and moisture measurements. Once it has been determined that some level of remediation work is needed, testing can be utilized to determine the remediation strategy for those areas where spores have spread.

Unfortunately, many environmental consultants are attempting to use bioaerosols sampling procedures developed for health research, risk assessments or health evaluations to establish building remediation procedures. The investigative techniques for health are different than the techniques for property damage.

The most helpful tool in assessing the fungal condition of a building is a thorough and accurate building history of water damage. Based on this history, the most fruitful leads can be identified and explored, and judicious testing performed when necessary. However, an accurate building history is not always available. Additional valuable information can be gained from a visual inspection, moisture measurements and odors. If a mold problem can be seen, musty odors are present, or moisture conditions have not been addressed for more than a few days, then mold growth will be a likely result. Based on these types of observations, it frequently becomes apparent that mold remediation at some level is needed. But what level of remediation is required? Do we want to guess? Some recommendations have been made that the successful building remediation be based on whether building occupants can re-enter the building without symptoms. Even if this method has merit, as a consultant I don’t want to rely on using the human guinea pig method for determining if my remediation strategy was correct.

In order to successfully complete a mold remediation a restoration contractor needs to know many things. Where is the mold and how much demolition is necessary to access the mold? Are there pathways that may have spread the contamination from the immediate area of growth? What method of evaluation will be used to determine the success of the remediation? It is my opinion that a properly chosen and executed set of tests can provide valuable answers that will help direct a remediation process and keep it cost-effective.

Sampling As Guidance

I find one of the most important determining factors for a successful remediation is pre-remediation sampling designed to provide guidance as to the actions that need to be taken by the remediation contractor. Culturable carpet dust or culturable surface dust has in my experience been one of the most valuable predictors of the condition of the building at a distance from the rooms where known growth has occurred. When settled dust samples are collected shortly before beginning remediation, they provide a benchmark indicating what quantity and type of settled spore were present before beginning the remediation. The tests may also provide an indicator as to the level of contamination that is spread to other areas, and often as an indicator of hidden contamination that has not been previously discovered. I have also found these samples to be a good predictor of the actions necessary for successful post remediation levels to be achieved. A research paper on dust sampling that I have found to be valuable and consistent with my experience was presented by Richard Scott and Mark Hodgson of Clayton Environmental titled, “Prevalence of Fungi in Carpet Dust Samples.” It provides an excellent overview of the sampling strategy and interpretation of carpet dust samples.

But not all carpet dust analysis is the same. A laboratory analysis technique that is frequently used to save time is the total fungal spore count. This is a direct examination technique where the microbiologist looks at a sample of dust through a microscope and identifies and counts the spores they see. This method has the advantage of being a rapid analysis since the spores are not incubated and are only visually examined. For this reason the results can be obtained in a few hours. The disadvantage is the spores are hard to see mixed in with all the debris. Significant under counts, especially for smaller spores like Penicillium and Aspergillus are typical. I personally have little confidence in the total count method when it is used by itself. When I have had both culturable and total dust analyzed from the same area, I have not been impressed with the results from the total dust method. Since the total dust should contain all the culturable and non-culturable spores, it should demonstrate at least the same or higher counts than the culturable. It rarely does. In fact, the Penicillium and Aspergillus organisms have in my experience always been significantly underestimated. So I would suggest using the culturable or both, but never the total count alone.

Building contamination isn’t always limited to the area of growth. Spores can be spread like invisible dandelion fluff throughout the structure. A typical Penicillium or Aspergillus spore will settle over night. Given enough time a spread of spores can occur. This may be even more pronounced when a HVAC return is in the vicinity assisting with the transport of spores. By having culturable carpet dust analyzed in comparison to areas of the building far removed from the growth site, the spread of contamination can be discerned. I find this a far more reliable predictor than air sampling.

Another reason pre-remediation testing is important is liability. Many times each year I receive calls from restoration contractors being accused of releasing mold from the contained area into other parts of the building during remediation. Are they guilty? Often times probably not, but when I ask them if any testing of the failed area was performed prior to the remediation they frequently indicate no testing was done or that air samples were collected, and showed the area to be okay. Air samples only indicate what was present in the air at the time the sampling was performed. They do not provide any kind of historical information about the build up of settled spores that can occur over time. When I collect carpet dust or surface dust prior to beginning a remediation, a better and more cost effective benchmark can be established. This provides an indication of what level was present prior to beginning the remediation. If the spores were present in the carpeting in parts of the building not undergoing remediation prior to beginning the remediation, the contractor shouldn’t be held responsible when they are still there afterward.

This same carpet dust sample frequently serves as an indicator that there are other pre-existing or undiscovered conditions present in the building. The further one gets from the source of contamination, the less organisms there are associated with the water damage, and the more organisms associated with the normal outdoor environment one will see. If an area has an unexpected spike in total spores, predominated by water damage indicator organisms, in an area removed from the known growth sites, other hidden conditions are frequently present and further exploration is warranted.

The post remediation carpet dust level is also helpful to evaluate the effectiveness of cleaning fungal spores from carpet. I have found this information, when combined with the results from culturable carpet dust tests collected prior to remediation, helps to predict the success or failure of the clean up of settled spores from porous materials.

Instead of making blanket statements that if you have mold growth in your building, you don’t need to test. We need to promote appropriate testing as a part of mold investigations.

I typically won’t write a remediation specification that deals with areas that may have a spread of spores with out using the carpet dust. Pre-remediation testing is a cost effective and valuable tool, but it must be done properly and always with a purpose in mind. Not having these tests frequently sets the remediation contractor up for failure, slows down the job and increases everyone’s liability.

John Banta is certified by the American Board of Industrial Hygienists as a Certified Associate Industrial Hygienist (CAIH), and by IAQA as a Certified Mold Remediator (CMR). John is an approved instructor for the CMR preparation course offered by Restoration Consultants. He serves on several committees including IICRC S500 Water Damage Standard Review Committee and on IEI’s Mold Remediation Standards Committee. He is co-author for the book: Prescriptions for a Healthy House: a Guide for Architects, Builders and Homeowners which is now in its second edition. He is one of the founders of Riverstone Restoration a mold remediation company. You can reach him by calling (512) 441-0104 or by e-mail at jcbbanta@aol.com.