Mold Remediation Standard Nears Completion 

Mold Remediator Licensing Starts Big

To Err is Human - To Forgive...

Word on the Street

• Voices: “I probably won’t be here to enjoy Montgomery County’s smoke-free restaurants and bars. But you will have the chance to see the lives of workers and patrons last longer. And remember: I’ll be watching.”
  
  — Maryland anti-smoking activist and lifelong non-smoker Alice K. Helm, in a statement written within
  two weeks of her June 22 death due to complications from lung cancer
      
• HUD Gets into IAQ: The U.S. Department of Housing & Urban Development’s Office of Healthy Homes and Lead Hazard Control is currently developing a new Web site called the National Healthy Homes Information Listing. The office already oversees the only government-funded Web site for lead assessment and mitigation listings and services. The new site will provide consumers with a wide range of general information regarding healthy homes issues, along with listing information on professionals and companies that offer various healthy homes-related services. The topics and service listings to be covered include: lead, mold and moisture control, asbestos, radon, combustion products and particulates, green building products, allergens, integrated pest management and pesticide use, and home safety issues. When completed, this site will be available at www.healthy-homes.info.
    
• Schools Win in CT: After two years, Connecticut will now have a law for indoor air quality in schools. “Connecticut’s students, parents and teachers will finally be able to breathe a little easier!” said Joellen Lawson, founder and president of the Canary Committee. Lawson is a former educator who is now disabled as a result of mold exposure in a school. Among the highlights of the new law:
    
  -requires boards of education to properly maintain their facilities,
     
  -requires BOE to adopt and implement an indoor air
  quality program to provide for ongoing maintenance and facility reviews necessary for the maintenance and improvement of the IAQ in its facilities,
     
  -requires BOE to report annually to the state Commissioner of Education on the condition of its
  facilities and the action taken to implement its long-term school building program and indoor air quality program,
     
  -requires that prior to Jan. 1, 2008, and every five years BOE to conduct a uniform inspection and evaluation program of the IAQ within their schools built or renovated after Jan. 1, 2003, such as the EPA’s Indoor Air Quality Tools for Schools program. Local and regional boards of education conducting evaluations will also have to make the inspection report public..
      
• No Green Flooring: The vinyl industry dropped its lawsuit last month contesting New York State’s refusal to recognize vinyl flooring as a “green” building material. The lawsuit had been scheduled to be heard before the state Supreme Court June 6.
    
  “There’s nothing green about vinyl. It’s a highly toxic product that contaminates our homes, bodies and the
  environment,” said Paul Bogart of the Healthy
  Building Network. “Other states should take note of
  New York’s victory and implement policy changes to reduce the use of vinyl.”
    
  The Resilient Floor Covering Institute, a flooring trade association, abruptly withdrew its lawsuit just one week before presenting its case asserting vinyl flooring is a
  “sustainable” product that should be eligible for the state’s Green Building Tax Credit program. New York State had rejected vinyl flooring for the program based on the product’s substantial environmental problems, including creation of dioxin, which has been identified as a carcinogen.
     
• Closed Forum: In its’ annual “State of the Air” report on ozone air pollution, the American Lung Association stated that 49 percent of the U.S. population “lives in areas with unhealthy levels of ozone.” In rating individual counties across the nation on air quality, the ALA gave failing marks to over half of all those monitored. The Competitive Enterprise Institute, a non-profit group, attacked the report, accusing the ALA of “faking numbers” for scare tactics. Joel Schwartz, an adjunct scholar with the institute, said that the ALA bases its findings in each county on a single rural monitoring site.
    
  Rebutting the institute’s accusations, the Clean Air Trust backed the ALA report and furthermore named CEI’s Schwartz its “villain of the month.” However, in doing so, the Clean Air Trust failed to address any of the objections Schwartz and the CEI had with the ALA report. The CEI has since challenged the Clean Air Trust to a public debate to refute Schwartz’s statements. The trust has apparently declined to participate or to clear the air between the two organizations..
     
• Lead Wicks Licked: The Consumer Product Safety Commission recently issued a final rule banning candles with lead-containing wicks. After years of meetings and public testimony, CPSC declared that metal-cored candlewicks containing more than 0.06 percent lead by mass and candles with such wicks are hazardous substances and should be banned. The final rule was issued under the Federal Hazardous Substances Act and will become effective Oct. 15.
    
• Case Closed: The ARTI 21-CR research project on the causes of black soot phenomena has been completed and the final report accepted, but the Indoor Environmental Quality Subcommittee won’t release the report for general distribution. Dr. Niren L. Nagada of ENERGEN Consulting Inc. in Germantown, Md., was the principal investigator on the project, which began a couple years ago.
     
  The literature survey portion of the project identified seven hypotheses as possible causes or mechanisms
  contributing to the deposition of “black soot” inside buildings and homes. However, the field investigations and laboratory work was limited and didn’t fully investigate all seven hypotheses. Reportedly, the project monitoring subgroup was of the opinion that the field investigations were inconclusive for determining whether or not the seven hypotheses were valid or not.

Mold Remediation Standard Nears Completion 
By Larry Cooper

The IICRC Standard and Reference Guide for Mold Remediation has almost been completed. IICRC S520 is the result of two years of collaborative efforts on the part of industry experts, microbiologists, public health experts, industrial hygienists and other scientists, remediation contractors and professionals.

The Institute of Inspection, Cleaning and Restoration Certification is proud to have partnered in this effort with the Indoor Air Quality Association, the Indoor Environmental Institute, the American Indoor Air Quality Council, the International Society of Cleaning Technicians, the National Air Duct Cleaners Association and the Association of Specialists in Cleaning and Restoration.

There are many areas in the document that caused great discussion and debate and will continue to be of interest and discussion for our industry in the future. Some of these topics include:

• What amount of visible mold would have to be present to require an assessment by an indoor environmental professional?
• Who is qualified to do the actual inspections and write the job scope or protocol?
• Is every single water damage job a mold job, or does the event of a water damage situation cause one to properly get the building history and start some level of investigation?
• What will state legislation do to our industry and our role in setting our own standards for doing work?
• Is there a lack of qualified people in our industry to perform mold remediation services?

These are just some of the questions and challenges that the committee and sub-committees faced. Countless hours were spent debating, discussing and attempting to reach consensus on these issues.

The Standard and Reference Guide was written taking into account five principles and processes of remediation for all areas of the document. These are:

1. Provide for the health and safety of occupants and workers.
2. Document the conditions and work processes.
3. Control the contaminant at its source.
4. Physically remove the contamination.
5. Correct the moisture problem to prevent recontamination.

The goal of the S520 Standard was to put in writing the best, most current information "of the time" for performing mold remediation work. The committee members researched, reviewed literature available and used referenced information that had previously been peer reviewed and accepted.

Standard
IICRC S520 is a procedural standard for use by those involved in the mold remediation industry, as well as a supplementary reference guide. The standard is printed first within the document in colored pages, followed by the longer reference guide section. This document was written primarily for technicians who will remediate mold damage and secondarily for others who will investigate, write remediation specifications, protocols and/or procedures or perform remediation investigations and management of remediation projects.

The procedures outlined in the standard do not allow for shortcuts or partial remedies. This standard is technically consistent with knowledge of mold remediation available at the date of its release.

The IICRC S520 Standard was written in an American National Standard Institute format and is therefore short and concise. The standard has 16 sections and includes information from the Standards Committee about the document. The sections include the Scope, Purpose and Application, References, Definitions, Principles of Remediation, Organizational Requirements, Health and Safety; Regulations, Equipment, Tools and Materials, Communication and Documentation, Limitations and/or Constraints, Inspections, Site Specific Safety and Health Plan, Structural Remediation, H.V.A.C., Contents Cleaning, Post Remediation Evaluation and Final Documentation.

This standard was developed with reference to previously published guidelines for mold remediation. It updated and addressed new research on potential adverse health effects brought about by fungal exposure.

While IICRC S500 deals with procedures for documenting and drying structures and contents, IICRC S520 addresses procedures for inspecting fungal contamination, proper containment, air management and control, and physical procedures for remediation.

Reference Guide
The reference guide was written with 12 chapters, an appendix, a glossary of terms and an index. The chapters include a discussion on fungal ecology, principles of mold remediation, health effects, communications and documentations, limitations, constraints and conflicts, inspections, structural remediation, HVAC, contents remediation, tools, equipment and materials, health and safety, and indoor environmental professionals and assessments.

These chapters were written using the most current information available. The IICRC S520 Standards Committee attempted to combine essential academic principles in conjunction with elements of water damage restoration for field technicians facing "real-life" residential and commercial mold remediation processes from the perspective of multiple disciplines. This was quite a challenge for the subcommittees to accomplish.

Assistance
The work, research and final product could not have been accomplished without dozens of volunteers who committed endless hours to this vitally important document.

The document was developed by a large group of volunteers. The S520 Standard Committee was made up of 28 very dedicated people. Many of these committee members then chaired or co-chaired one of 14 subcommittees that created the various chapters and sections of the Reference Guide. The main committee wrote the outline of the chapters and "flow" within the sections of those chapters and submitted them to the subcommittees. The subcommittees spent nine months prior to and at meetings writing their chapters and submitting their documents to the main committee for peer review and comment. The committee held eight, three-day meetings preparing the document.

The S520 was then turned over to an editing committee made up of 14 members, for review of the format, consistency of words and the overall flow of the document. The editing committee worked with a technical writer and an editor to produce the final document prior to publishing the Standard and Reference Guide.

The S520 also was sent to over 200 industry professionals for peer review and comment. Those comments were shared with the editing committee and subcommittees, as was appropriate. In addition, several presentations were made to related professional associations and groups in regard to the development of the document in an effort to invite industry-wide participation.

The following individuals and organizations provided outstanding efforts in the development of this standard: Larry Cooper, Standards Committee Chairman, Textile Consultants Inc.; Barry Costa, Vice-Chair/Secretary, The Costa Group Inc.; Jeff Bishop, IICRC Technical Advisor, Clean Care Seminars; Edward H. Cross, Esq.; Eugene Cole, Ph.D., Brigham Young University; Edward H. Cross & Associates, P.C.; Daniel Bernazzani, Liberty Consulting; James Holland, CEO, Restoration Consultants Inc.; Darrell Paulsen, Advanced Restoration Specialists; Peter Sierck, Environmental Testing and Technology Inc.; Richard Shaughnessy, Ph.D., University of Tulsa; John Banta, Restoration Consultants Inc.; Patrick Moffett, Environmental Management and Engineering Inc.; Rachel Adams, Indoor Air Management; Rusty Amarante, Belfor; Cliff Grost, Multi-Maintenance; Carl Grimes, Healthy Habitats; Tom Yacobellis, Indoor Air Quality Association and Ductbusters Inc.; Jim Pearson, Association of Specialist in Cleaning and Restoration; Robert Baker, BBJ Environmental Solutions Inc.; Frank Van Zant, Steamatic Corporation; Dane Gregory, 3D Corporation; Cliff Zlotnik, Unsmoke Systems; Charlie Wiles, American Indoor Air Quality Council; Chris Netherton, National Carpet Cleaners Association, England; Steven J. Phillips, Ph.D., The Carpet and Rug Institute; Tim Toburen, RestCon Environmental; Kirk Lively, Belfor; Ruth Travis, International Society of Cleaning Technicians, IICRC Vice-President, RL Seminars; James Craner, M.D.; Sean Abbott, Mold Lab; Kathi Giaramita, ServiceMaster Clean; Jeanna R. Sellmeyer, Asset Group Inc.; Don Cochlin, J and M Keystone Inc.; Jim Mosier, Reiter Mosier Restoration Specialist; the National Air Duct Cleaners Association; and many more.

Impact and Review
The IICRC S520 Standard and Reference Guide will have an immediate impact on the restoration and remediation industries and well as others who are involved in the field of mold remediation. Companies in the mold remediation industry should review the standard by putting in place procedures to follow it and, then through fieldwork and testing, challenge the standard to improve and update or validate the procedures.

As with all the IICRC Standards, S520 was designed to be a "living document." Improvements in the technology of mold remediation coupled with research and testing necessitate periodic updates. In fact, research, testing and other work to further advance the science of mold remediation is ongoing as this document is being published.

The field of mold remediation is enormous. Currently, there is not enough valid testing and published information in all areas.
We encourage participation and comments about the written material. We further encourage the industry to fund future testing of areas within this document and have them reviewed, published and accepted.
Any comments, suggestions and valid data should be forwarded to the IICRC to help further the industry consensus process.

Larry Cooper is the chairman of the Standard Committee in the Institute of Inspection, Cleaning and Restoration Certification, the registry that develops and monitors educational programs and standards for the industry of inspection, cleaning and restoration. Founded in 1972, IICRC is the largest non-profit registry of inspectors, cleaners and restorers serving the United States, Canada, Great Britain and Australia. IICRC is owned and controlled by 16 regional and international industry trade associations. IICRC does not own schools, employ instructors, produce training materials or promote specific product brands, cleaning methods or systems; it approves schools and instructors that meet the criteria established by the IICRC. IICRC also serves as a consumer referral source for certified firms, technicians and inspectors. Currently, IICRC lists over 28,000 certified technicians and 4,000 certified firms in its registry. IICRC standards published in the past are deal with carpet cleaning (IICRC S100), upholstery cleaning (IICRC S300) and water damage restoration (IICRC S500). Cooper can be reached by e-mail at textilecon@aol.com or by phone at (303) 289-1034.

Texas is scheduled to become the first state to regulate the licensing of mold remediators and assessors. The major provisions of House Bill 329, signed into law on June 10, will take effect on Sept. 1 under a program to be instituted by the state Department of Health.

Among the many costly mold-related problems experienced by Texas homeowners over the past few years was so-called remediators operating without a license. Many individuals commented on the misuse of the word “remediation” in the Lone Star State, where the hot, moist climate is one of the most conducive in the United States to magnify mold growth and require action.

Just as the mold spores would inevitably show up as they did in the multi-million-dollar case of Melinda Ballard of Dripping Springs, so would questionable characters claiming to run operations in mold remediation, collecting their fees and not providing adequate services. They were taking advantage of the loophole in the law, and law enforcement could do no better than to look the other way.
Until September.

Even while members of the Texas legislature exiled to Oklahoma during a long battle over plans to redistrict the state, both houses and Gov. Rick Perry (R) approved HB 329 and two Senate bills related to homeowners’ insurance coverage.

The new insurance laws seek to solve another nuisance in the homes of Texas residents, who have been hit last year with the highest rates anywhere in the country. SB 127 will do two things: first, require public adjusters to obtain licenses; and second, allow the state insurance department to insist on prompt response to claims of water damage SB 14 deals with the government control of insurance rates.

The real triumph of this package for homeowners is the licensing of mold remediators. Sources say the Texas Department of Health has begun working on the terms of its licensing program as provided for in the new law.

Similar legislation in other state governments is pending action.

In the indoor air quality arena, the largest portion of my daily legal practice involves the defense of professional contractors, either in their personal or corporate capacity, who have been retained to provide fee-based services directly or indirectly to consumers.

The provision of these services may or may not involve the negotiation, drafting and/or execution of a written agreement (contract) prior to the initiation of work. As a general rule, if there is an executed, written contract, the rights and obligations flowing in both directions between the various parties are governed solely by the express terms and
conditions contained within the “four corners” of the document. If there are understandings, agreements, representations or warranties between the parties “outside of the contract,” the courts may invoke “equitable rules” or rules of “fairness” to examine and ultimately decide upon the rights, obligations and responsibilities of the parties to one another.
All attorneys prefer to live in a “cut and dried” world where express terms govern the dealings, and ultimately, the expectations of the parties involved in a transaction. However, in the litigious world in which we live, almost all lawsuits involve extra-contractual, implied or unforeseen causes of action. I believe this reality comes from a fundamental misunderstanding between contractor and consumer when expectations fail to meet ultimate results.
I can safely say that in the vast majority of consumer cases where a contractor performs a service, he or she achieves the expected results without incident, up to, or in some cases, exceeding consumer expectations.

What happens when a contractor makes a mistake? To err is human. To forgive – well, that costs money!

The Problem
In analyzing a fact situation where a professional contractor has made a “mistake,” to what degree will he or she be held liable for the consequences of the mistake?

A “mistake” is commonly defined as “an error in action, judgment, perception, or impression; a blunder.” I have also seen the verb form defined as “to take to be other than it is, understood wrongly; misjudge, to be wrong in, to err unintentionally or to make an error in recognizing or identifying.”

When consumer expectations do not match achieved results, and the consumer chooses to take his problem into the legal arena for resolution, the “unintentional mistake” becomes “negligence, gross negligence or intentional, knowing or unconscionable conduct.” Once a lawsuit is filed, it is usually too late to resolve problems without substantial cost and/or expense. I believe that a contractor can prevent or at least mitigate his or her ultimate legal exposure by first recognizing and then correcting any “mistake” made before litigation is initiated.

Standards of Care
Although the rules, regulations, guidelines, standards of care and case law by which the actions of contractors are governed vary widely across jurisdictions, certain common principles apply regardless of the specific fact situation or geographic locality. A “professional” is commonly defined as “an individual or business entity who, while engaged in
rendering services or providing goods, utilizes special knowledge, training, experience or skills.” The provision of goods and/or services is usually regulated by individual states or the federal government through administrative agencies, statutes or licensing boards. Some authorities further define a “professional” as a member of an occupation that has the ability to regulate its own members.

The rationale for regulating industry professionals usually originates from a public policy standpoint in that the government should protect the “greater public good” of all citizens powerful and powerless alike. Therefore, a professional IAQ contractor finds himself or herself operating in a maze of civil statutes and administrative rules established by legislators and committees that in many instances may have little or no scientific or technical expertise.

Once licensed, the contractor performs professional services within these specific parameters. It should be noted that these guidelines, standards and regulations to which the professional is held accountable operate “seamlessly” only in a mystical, magical world of make-believe. The real world is just what he term implies: R-E-A-L, complete with unexpected, unintended and unforeseeable complications, interactions and results.

I think great harm is inflicted upon the IAQ industry by members of my own profession who fail to grasp the fact that we all live in an imperfect world where – believe it or not – Monday-morning quarterbacks are not always right. For example, one Texas plaintiff’s attorney once told me, “Mike, the house did not pass clearance on the very first time it was tested. That’s professional negligence per se – no question, scientifically proven and indefensible.”

The true fact of the matter was later revealed. During a deposition, his client admitted breaking containment, going into the remediated area after my client had left, and opening up another part of the wall where she knew there had been a previous water leak but had conveniently failed to tell the insurance adjuster or the remediator of its existence. This was all done because she expected her house to be “free of all mold,” unfettered by minor details like insurance coverage, mitigation of damages or ignorance of a longstanding problem.

Negligence
When a “mistake” is made, the most common cause of action against a contractor lies in “negligence.” Negligence (“plain vanilla”) is defined as the breach of a specific duty placed upon the shoulders of a contractor by those previously mentioned rules and regulations enacted by administrative boards, licensing bodies, state or federal agencies and general case law.

The elements of negligence are: (1) the existence of a duty of care; (2) breach of this specific duty; (3) proximate causation; and (4) resulting damage. In all jurisdictions, an aggrieved party has the sole burden to prove that all four elements of negligence are present in the particular fact situation before the court.

On the other hand, “gross negligence” is defined as an intentional breach of duty undertaken in reckless disregard of the consequences effecting the life or property of another.
Another type of negligence for which a contractor may be held liable is negligence per se. This type of negligence involves the violation of a public duty imposed by law without any consideration for the factual circumstances surrounding the action or inaction. Regardless of the cause of action, if a contractor makes a “mistake,” I suggest that he or she take the four steps outlined below.

The Solution
A sage once said, “A fool is a person who believes his or her own rhetoric.” (I must admit for the record that in some parts of Texas, the term “rhetoric” is replaced with more earthy and descriptive agricultural terminology.) When “mistakes” happen, perform a “critical” self-evaluation. Literally, tear apart your own work. 

For example: (1) To whom do you owe a duty of care? (2) Are there foreseeable third parties who may be owed this duty? (3) Were these third parties relying upon or benefiting from your actions? (4) What were the specific actions of your agents, employees or apprentices? (5) What was the specific action or inaction that caused the damage? (6) How could it have been prevented? (7) Did the action or inaction involve an “extreme risk” of harm to others? (8) Was the risk known or foreseeable? (9) Was there a conscious indifference to the rights or welfare of others (gross negligence)? (10) Is there a direct violation of a statute or rule governing the conduct (negligenceper se)? (11) What would another professional do under the “same or similar circumstances”? (12) Have these same allegations occurred before? (13) What training have you had (oral or written) which directly address these allegations? Finally, (14) what will the Monday-morning quarterback, fresh from comprehensive and exhaustive research on the Internet, say about your conduct? (Just kidding – but you get my point!)

Two additional factors are brought to bear upon the professional’s conduct. These are: (1) the “locality rule,” where a professional is judged against the customs and practices of other professionals in his same geographic location; and (2) the “specialist rule,” where the standard of care is raised owing to a particular professional’s greater degree of skill, training, knowledge or experience (usually designated by “mystical initials” behind someone’s name).

The second step is to employ a well-respected industry professional to objectively and accurately evaluate the facts of the case, the actions undertaken (or not undertaken) by the professional and the resulting effects (damages). Great care should be undertaken before “consulting” experts such as these are engaged. If litigation is expected or foreseeable, please contact an attorney trained in this area before the analysis is undertaken by the consulting expert. Important evidentiary and procedural concerns need to be addressed early in this process. It is important to get a “trained eye to examine the work.” However, that information must be adequately protected.

Thirdly, admit your mistake. If it truly was unintentional, then honesty is the best policy. Since admissions against self-interest are admissible as evidence against the party making the admission, I would not make such an admission in a written document. That must sound inconsistent given the previous statement regarding “honesty.” However, after seeing statements made by honest and well-meaning contractors (who did make an “unintentional” mistake) being “spun out of this universe” by zealous advocates, I would be extremely careful about making admissions of any type. Since no judge or jury can go into a contractor’s mind to assess “intent,” the only evidence of intent comes from external actions. Instead of making an admission against self-interest, why not take step four?

If something went wrong based upon a contractor’s action or inaction, he should “make it right.” Immediate corrections serve to mitigate damages. Mitigation of damages will decrease ultimate liability regarding actual (those provable, direct damages) and most importantly, punitive damages (meant to punish, having no connection to actual damage incurred). Do not be afraid to take “subsequent remedial actions” or post-incident corrective actions. The general rule across jurisdictions is that “subsequent remedial actions” are not admissible as evidence against the party undertaking the action. There is one exception to the rule: product’s liability cases. In “defective product” cases, subsequent remedial measures undertaken by a party can be used as evidence against that party. Fixing the problem immediately upon discovery will not only cut off damages, but will gain the “good will” of the client. A happy client will not call his lawyer.

Conclusion
If a “mistake” is made, go immediately to Step 1 above. Remember, lawyers (either defense or plaintiff) are not the best judge of a professional’s conduct. You and your
colleagues are the professionals in the best position to objectively examine the services rendered. Don’t wait for a lawyer to point out your “mistake” before taking proactive steps to lessen your ultimate legal exposure.

Michael Bowdoin is an attorney at the law firm of Brown Sims, PC, in Houston. Bowdoin has an undergraduate degree in microbiology and has practiced commercial litigation, construction law, real estate law and insurance law in numerous states for both corporations and private law firms. He can be reached by e-mail at mbowdoin@brownsims.com or by calling (713) 629-1580.