Guest guest Posted January 25, 2002 Report Share Posted January 25, 2002 SD2243 - HD4879 AN ACT TO ENHANCE THE EFFECTS OF REGULATIONS AND LAWS AIMED AT THE PROTECTION OF THE PUBLIC HEALTH AND SAFETY IN REGARDS TO TOXIC MOLD. Be it enacted by the Senate and House of Representatives in General Court Assembled, and by the authority of the same, as follows: Chapter 1. Toxic Mold Article 1. General Provisions 12669.0. This Chapter shall be known, and may be cited. as the Moulton Toxic Mold Protection Act for Massachusetts. 12669.1. For purposes of this chapter, the following definitions apply: (a) " Affect " means to cause a condition by the presence of mold in the dwelling, unit, building, appurtenant structure, common wall, heating system or ventilating and air-conditioning system that affects the indoor air quality of a dwelling unit or building. ( " Authoritative bodies " means any recognized national or international entities with expertise on public health, mold identification and remediation, or environmental health, including, but not limited to, other states, the United States Environmental Protection Agency, the World Health Organization, the American Conference of Governmental Industrial Hygienists, the New York City Department of Health, the Centers for Disease Control and Prevention and the American Industrial Hygiene Association. © " Certified Industrial Hygienist " means a person who has met the education, experience and examination requirements of an industrial hygiene certification organization as defined in the Massachusetts Business and Professions Code. (d) " Code enforcement officer " means a local official responsible for enforcing housing codes and maintaining public safety in buildings using an interdepartmental approach at the local level. (e) " Department " means the Massachusetts State Department of Public Health, designated as the lead agency in the adoption of permissible exposure limits to mold in indoor environments, mold identification and remediation efforts, and the development of guidelines for the determination of what constitutes mold infestation. (f) " Indoor environments " means the affected dwelling unit or affected commercial or industrial building. (g) " Mold " means any form of multicellular fungi that live on plant or animal matter in indoor environments. Types of mold include, but are not limited to, Cladosporium, Penicillium, Alternaria, Aspergillus, Fuarim, Trichoderma, Memnoniella, Mucor, and Stachybotrys chartarum, often found in water-damaged building materials. (h) " Person " means an individual, corporation, company, association, partnership, limited liability company, municipality, public utility, or other public body or institution. (i) " Public health officer " means a local health officer appointed pursuant to the governing Massachusetts Laws or a local comprehensive health agency designated by the local elected governing body pursuant to carrying out the drinking water program. 12669.2. All standards that the department develops pursuant to this chapter shall be in accordance with existing administrative law procedures applicable to the development of regulations. 12669.3. The department shall convene a task force which shall advise the department on the development of standards pursuant to Sections 12669.5, 12669.7, 12669.8, 12669. 10, and 12669.16. The task force shall be comprised of representatives of public health officers, environmental health officers, code enforcement officers, experts on the health effects of molds, medical experts, certified industrial hygienists, mold abatement experts, representatives of government-sponsored enterprises, representatives of school districts or office of education, and scores of affected consumers, which include but are no limited to, residential, commercial and industrial tenants, homeowners, environmental and consumer groups and attorneys, and affected industries, which include, but are not limited to, residential, commercial and industrial building proprietors, managers or landlords, builders, realtors, suppliers of building materials and suppliers of furnishings and insurers. Task force members shall serve on a voluntary basis and shall be responsible for any costs associated with their participation in the task force. The department shall not be responsible for travel costs incurred by task force members or otherwise compensating task force members for costs associated with their participation in the task force. 12669.4. The department shall consider the feasibility of adopting permissible exposure limits to mold in indoor environments. 12669.5. (a) When the department adopts permissible exposure limits to mold in indoor environments is feasible, the department, in cooperation with the task force convened pursuant to Section 12669.3 shall: (1) Adopt permissible exposure limits to mold for indoor environments that avoid adverse effects on health, with an adequate margin of safety, and avoid any significant risk to public health. (2) Notwithstanding paragraph (1), balance the protection of public health with technological feasibility when it adopts permissible exposure limits. (3) Utilize and include the latest scientific data or existing standards adopted by authoritative bodies. (4) Develop a permissible exposure limit that targets the general population. ( The department shall consider all of the following criteria when it adopts permissible exposure limits for molds in indoor environments: (1) The adverse health effects of exposure to molds on the general population, including specific effects on members of subgroups that comprise a meaningful portion of the general population, which may include infants, children age 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, or other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to mold. (2) The standards for molds adopted by authoritative bodies. (3) When determining the technological and economic feasibility of compliance with the proposed permissible exposure limits for molds, the department may only consider the health and welfare of the citizens as the governing rule of law. (4) Toxicological studies and any scientific evidence as it relates to mold. a. The department may develop alternative permissible exposure limits applicable for facilities, which may include hospitals, child care facilities and nursing homes, whose primary business is to serve members of subgroups that comprise a meaningful portion of the general population and are at a greater risk of adverse health effects from molds than the general population. These subgroups may include infants, children age 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, or immune compromised individuals. b. The department shall report to the legislature on its progress in developing the exposure limit for molds by July 1, 2003. 12669.6. (a) (1) The department shall, at the time it commences preparation of the permissible exposure limits to mold, provide notice electronically by posting on its Internet Web Site and by publication in newsprint and television broadcast, statewide, a notice that informs interested persons that the department has initiated work on the permissible exposure limits to mold. (2) The notice shall also include a brief description or a bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of permissible exposure limits. (3) The notice shall inform persons who wish to submit information concerning exposure to molds of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the permissible exposure limits, and that all information submitted will be available to any member of the public who makes the request. ( The department may amend the permissible exposure limits to molds to make the limits less stringent if the department shows clear and convincing evidence that the permissible exposure limits to molds should be less stringent and the amendment is made consistent with Section 12669.5. © The department may review, and consider adopting by reference, any information prepared by, or on behalf of the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national permissible exposure limits to mold as long as they are not less stringent than those already defined. ( d) At least once every five years, after adoption of permissible exposure limits to molds, the department shall review the adopted limits and shall, consistent with the criteria set forth in subdivisions (a) and ( of section 12669.5, amend the permissible exposure limits if any of the following occur: (1) Changes in technology or treatment techniques that permit a materially greater protection of public health. (2) New scientific evidence that indicates that molds may present a materially different risk to public health than was previously determined. 12669.7 (a) The department, in consultant with the task force convened pursuant to Section 12669.3, shall adopt practical standards to assess the health threat posed by the presence of mold both visible and invisible or hidden, in an indoor environment. ( The department shall adopt assessment standards for molds that do the following: (1) Protect the public's health. (2) Notwithstanding paragraph (1), balance the protection of public health with technological feasibility when it adopts assessment standards. (3) Utilize and include the latest scientific data or existing highest standards for the assessment of molds adopted by authoritative bodies. (4) Develop standards that target the general population. (5) The department shall ensure that air or surface testing is not required to determine whether the presence of mold constitutes a health threat by the presence of the mold, both visible and invisible or hidden, in an indoor environment. ( The department shall consider all of the following criteria when it adopts standards for the assessment of molds in indoor environments: (1) The adverse health effects of exposure to molds on the general population, including specific effects on members of subgroups that comprise a meaningful portion of the general population, which may include infants, children 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, or other subgroups that are identifiable as being at greater risk of adverse health effects that the general population when exposed to molds. (2) The standards of assessment of molds, if any, adopted by authoritative bodies. (3) Any toxicological studies or additional scientific evidence. © The department shall report to the legislature on its progress in developing the assessment standards for molds by July 1, 2003. 12669.8. The department may develop alternative assessment standards applicable for facilities, which may include hospitals, child care facilities and nursing homes, whose primary business is to serve members of subgroups that comprise a meaningful portion of the general population and are at a greater risk of adverse health effects to molds than the general population. These subgroups may include infants, children 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, or immune compromised individuals. 12669.9 (a) (1). The department shall, at the time it commences preparation of the permissible exposure limits to mold, provide notice electronically by posting on its Internet Web Site and by publication in newsprint and television broadcast, statewide, a notice that informs interested persons that the department has initiated work on the permissible exposure limits to mold. (2) The notice shall also include a brief description or a bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of permissible exposure limits. (3) The notice shall inform persons who wish to submit information concerning exposure to molds of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the permissible exposure limits, and that all information submitted will be available to any member of the public who makes the request. ( The department may review, and consider adopting by reference, any information prepared by, or on behalf of the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national permissible exposure limits to mold as long as they are not less stringent than those already defined. © At least once every five years, after adoption of permissible exposure limits to molds, the department shall review the adopted limits and shall, consistent with the criteria set forth in subdivisions (a) and ( of section 12669.7, amend the permissible exposure limits if any of the following occur: (1) Changes in technology or treatment techniques that permit a materially greater protection of public health. (2) New scientific evidence that indicates that molds may present a materially different risk to public health than was previously determined. Article 2. Guidelines for Identification of Molds 12669.10. The department, in consultation with the task force convened pursuant to Section 12669.3, shall adopt mold identification guidelines for the recognition of mold, water damage, or microbial volatile organic compounds in indoor environments. 12669.11. Identification guidelines shall include scientifically valid methods to identify the presence of mold including elements for collection of air, surface and bulk samples, visual identification. Olfactory identification, laboratory analysis, measurements of amount of moisture and presence of mold and other recognized analytical methods used for the identification of molds. 12669.12 (a) Identification guidelines developed by the department shall do all of the following: (1) Avoid adverse effects on the health of the general population, with an adequate margin of safety, and avoid any significant risk to public health. (2) Utilize and include the latest scientific data or existing standards adopted by authoritative bodies. (b)The department shall consider all of the following criteria when it develops identification guidelines for mold: (1) Permissible exposure limits to molds developed by the State department of Public Health pursuant to subdivisions (a) and ( of Section 12669.5, or what constitutes a health threat posed by the presence of mold, both visible and invisible or hidden, in an indoor environment, according to the departments standards as developed pursuant to Section 12669.7. (2) Standards for mold identification adopted by authoritative bodies. (3) Professional judgment and practicality. (4) Toxicological reports or additional scientific evidence. © The department shall require a commercial, industrial, or residential landlord or a public entity that rents or leases a unit or building to conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible exposure limits to mold established by subdivisions (a), (, and © of Section 12669.5. (d) The department shall report to the legislature on its progress in developing the assessment standards for molds by July 1, 2003. 12669.13. The department may review, and consider adopting by reference, any information prepared by, or on behalf of the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national identification standards for mold as long as they are not less stringent than those already defined. 12669.14 (a) The department shall, at the time it commences preparation of identification guidelines for mold, provide notice electronically by posting on its Internet Web Site and by publication in newsprint and television broadcast, statewide, a notice that informs interested persons that the department has initiated work on the identification guidelines for mold. (2) The notice shall also include a brief description or a bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of identification guidelines for mold. (3) The notice shall inform persons who wish to submit mold identification of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the identification guidelines, and that all information submitted will be available to any member of the public who makes the request. 12669.15. All identification guidelines for mold published by the department shall be reviewed at least once every five years and revised, as necessary, based upon the availability of new scientific data or information on effective mold identification. Article 3. Guidelines for Remediation 12669.16. The department, in consultation with the task force convened pursuant to Section 12669.3, shall develop and disseminate remediation guidelines for molds in indoor environments. 12669.17. (a) Remediation guidelines for mold developed by the department shall do all of the following: (1) Provide practical guidance for the removal of mold and abatement of the underlying cause of mold and associated water intrusion and water damage in indoor environments. (2) Protect the public's health. (3) Utilize and include toxicological reports, the latest scientific data, or existing standards for the remediation of molds adopted by authoritative bodies. (4) Provide practical guidance for the removal or cleaning of contaminated materials in a manner that protects the health of the person performing the abatement. (5) Include criteria for personal protective equipment. (6) Require utilization of the services of a specifically qualified and trained professional to conduct the mold remediation. ( The department shall consider all of the following criteria when it develops remediation guidelines for mold: (1) Permissible exposure limits to molds developed by the department pursuant to subdivisions (a) and ( of Section 12669.5 or what constitutes a health threat posed by the presence of mold, both visible and invisible or hidden, in an indoor environment, according to the departments guidelines as developed pursuant to Section 12669.7. (2) Guidelines for mold remediation adopted by authoritative bodies. (3) Professional judgment and practicality. © The department shall require a commercial, industrial, or residential landlord or a public entity that rents or leases a unit or building to conduct air or surface tests of units or buildings to determine whether the presence of molds exceeds the permissible exposure limits to mold established by subdivisions (a), (, and © of Section 12669.5. (d) The department shall report to the legislature on its progress in developing the assessment standards for molds by July 1, 2003. 12669.18 (a) The department shall, at the time it commences preparation of identification guidelines for mold, provide notice electronically by posting on its Internet Web Site and by publication in newsprint and television broadcast, statewide, a notice that informs interested persons that the department has initiated work on the identification guidelines for mold. ( The notice shall also include a brief description or a bibliography of the technical documents or other information the department has identified to date as relevant to the preparation of identification guidelines for mold. © The notice shall inform persons who wish to submit mold identification of the name and address of the person in the department to whom the information may be sent, the date by which the information must be received in order for the department to consider it in the preparation of the identification guidelines, and that all information submitted will be available to any member of the public who makes the request. 12669.19. The department may review, and consider adopting by reference, any information prepared by, or on behalf of the United States Environmental Protection Agency or other authoritative bodies, for the purpose of adopting national remediation standards for mold as long as they are not less stringent than those already defined. 12669.20, (a) The department shall make available to the public upon request, information about contracting for the removal of mold in a building or surrounding environment, including all of the following: (1) Recommended steps to take when contracting with a company to remove mold. (2) Existing laws, regulations, and guidelines developed by the department, pertaining to permissible exposure limits to mold infestation, identification, and remediation. (3) Basic health information as contained in existing mold publications. ( All mold remediation guidelines published by the department shall be reviewed at least once every five years and revised as necessary based upon the availability of new scientific data. © (1) The Department of Public Health shall develop public education materials and resources to inform the public about the health effects of molds, methods to prevent, identify and remediate mold growth, resources to obtain information about molds, and contact information for individuals, organizations, or government entities to assist with public concerns about molds. (2) The department shall make its public information materials available to public health officers, environmental health officers, commercial and residential landlord organizations, homeowner and tenant organizations. These materials shall be readily available to the general public. (3) These materials shall be comprehensible to the general public. (4) These materials shall be made available on the department's internet website. Article 4. Disclosures 12669.21. (a) Subject to subdivisions (, ©, (d), (e) and (f), a seller or transferor of residential, commercial or industrial real property, shall provide written disclosure to prospective buyers as soon as practicable before the transfer of title when the seller or transferor knows of, or has a suspicion of, the presence of mold, both visible and invisible or hidden, that effects the unit or building and the mold either exceeds permissible exposure limits to molds established by subdivisions (a), ( and © of Section 12669.5 or poses a health threat according to the department guidelines as developed pursuant to Section 12669.7. ( A seller or transferor of residential, commercial or industrial real property shall not be exempt from providing written disclosure pursuant to this subdivision if the presence of mold was remediated according to the mold remediation guidelines developed by the department pursuant to Section 12669.16. © A residential, commercial or industrial real property landlord or seller shall be required to conduct air or surface tests of units or buildings to determine whether the presence of mold exceeds the permissible exposure limits to molds established by subdivisions (a) and ( of Section 12669.5. (d) The requirements of this section shall not apply until the first January 1 or July 1 that occurs six months after the department adopts standards pursuant to Section 12669.5 and 12669.7 and develops guidelines pursuant to Section 12669.16. (e) The requirements of this section as to the notification and disclosure of mold by sellers or transferors of residential, commercial or industrial real property shall begin immediately upon passage of this bill. (f) The written notice required by subdivision (a) shall be provided to prospective tenants as soon as practicable and prior to entering into a rental agreement. It will also be provided to current tenants in affected units as soon as possible. 12669.22. Any tenant of a residential, commercial or industrial real property who knows that mold is present in the building, heating system, ventilating or air-conditioning system, or appurtenant structures or that there is a condition of chronic water intrusion or flood, shall inform the landlord of this knowledge in writing within a reasonable period of time. The tenant shall make the property available to the landlord or his or her agents for appropriate assessment or remedial action as soon as is reasonably practicable if the landlord is responsible for the maintenance of the property. Nothing in this section is intended to any way affect existing duties and obligations of residential tenants and landlords. 12669.23. Residential, commercial and industrial landlords, who know, suspect or have notice that mold is present in the building, heating system, ventilating or air-conditioning system, or appurtenant structures, or there is a condition of chronic water intrusion or flood, have an affirmative duty, within a reasonable and timely period, to assess the presence of mold or condition likely to result in the presence of mold and conduct the required remedial action. 12669.24. The requirements of this article shall not apply to properties that are leased or rented where the tenant is contractually responsible for maintenance of the property, including any remedial action. 12669.25. Any tenant of a residential, commercial or industrial real property who knows, suspects or is informed that mold is present in the building, heating system, ventilating or air-conditioning system, or appurtenant structures or that there is a condition of chronic water intrusion or flood, and is responsible for the maintenance of the property shall inform the landlord of this knowledge in writing within a reasonable period of time and shall correct the condition in compliance with the terms of the contract with the landlord. 12669.26. (a) Any public entity that owns, leases, or operates a building shall provide written notice to all building occupants and prospective tenants as specified in subdivision ( when the public entity knows, suspects, or has reasonable cause to believe, that a condition of chronic water intrusion or flood exists, or that mold, both visible and invisible or hidden, is present that affects the building or unit and the mold either exceeds the permissible exposure limits to molds established by subdivisions (a) and ( of Section 12669.5, or poses a health threat according to the departments guidelines developed pursuant to Section 12669.7. ( The written notice required by subdivision (a) shall be provided:\ (1) To prospective tenants as soon as possible and prior to entering into any rental or lease agreement. (2) To current building occupants in affected buildings or units as soon as possible. © A public entity shall not be exempt from providing written disclosure to tenants or prospective tenants pursuant to this subdivision if the presence of mold was remediated according to the mold remediation guidelines developed by the department pursuant to Section 12669.16. (d) The requirements of this section shall not apply until the first January 1 or July 1 that occurs six months after the department adopts standards pursuant to Section 12669.5 and 12669.7 and develops guidelines pursuant to Section 12669.16. 12669.27. Nothing in this article shall relieve a seller, transferor, lessor, agent, landlord or tenant from any responsibility for compliance with other obligations, laws, ordinances, codes, or regulations, including but not limited to the duties outlined in any Sections of Massachusetts Law or Code and any other duties provided for under common law. 12669.28. (a) Nothing in this article shall affect the existing obligations of the parties or transferor to a real estate contract, or their agents or legal representatives, to disclose any and all facts having any material bearing that affects the value, desirability, or safety, including but not limited to, the physical conditions of the property and previously received reports or knowledge of physical inspections of the property. ( Nothing in this article shall be construed to change the existing inspections and disclosure duties of a real estate broker or salesperson as required by Massachusetts, Federal, consumer or common law. 12669.29. The specifications of items for disclosure in this article does not limit or abridge any obligation for disclosure created by any other provision of law or duties, or which may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction. 12669.30.All items subject to disclosure requirements pursuant to this article shall be subject to enforcement pursuant to Federal and Massachusetts Consumer, Criminal, Health and Safety and Environmental laws. 12669.31. The transferor and/or any listing or selling agent shall be held legally and financially liable for any error, inaccuracy, or omission of any information delivered pursuant to this article if the error, inaccuracy or omission was within the knowledge, or if they had a reason to believe, of the transferor or the listing agent or selling agent or realtor. Article 5. Enforcement 12669.32. Public Health officers, code enforcement officers, environmental health officers and any other appropriate government entities must respond to complaints about mold and must enforce standards adopted by the department pursuant to Section 12669.5 and Section 12669.7 and disclosure requirements as set forth The disclosure enforcement guidelines shall impose a fine of one thousand dollars per each incident and one thousand dollars per unit for each failure to disclose in compliance with this article. 12669.33. After the Department, pursuant to administrative law procedures, submits the proposed regulations developed pursuant to this chapter, The Department of Consumer Affairs, in consultation with representatives from the Department of Public Health, the Department of Public Safety, the Office of the Attorney General and members of the task force convened by the department pursuant to Section 12669.3, shall consider and report on the need for the most strict standards for mold testing professionals and mold remediation specialists. 12669.34. (a) In the event that the mold was a by product, or the result, of construction that is in violation of any local, state or federal building, fire, construction, health, plumbing, electrical or safety codes, and this illegal construction was known or observed, or should have been known or observed or seen, during the construction phase by representatives of the municipal and/or state inspectors, the owner of the property affected shall have full legal and financial recourse against the municipality and/or state without any statute of limitations in effect. ( Should any portion of the municipality and/or state have been made aware of the presence or suspicion of mold, in any way and at any time without any statute of limitations in effect, by the affected owner of the property, or their representatives, the municipal and/or state government shall be legally and financially liable in all aspects and loses, injuries or health related costs or legal costs or other financial loses suffered by the property owner. © Should either subsections (a) or ( be relevant, the property owner will be awarded the sum of one thousand dollars, by the municipality or their agents, for each day that the code violations were known or suspected by the municipality or their inspectors and the sum of five thousand dollars by the state or their agents for each day that the code violations were known or suspected by the state or their inspectors. (d) This Section shall override any other Massachusetts law that holds inspectors and/or the employing municipality or state entity not liable for failures to inspect or for faulty, inaccurate or incomplete inspections. 12669.35. This Chapter shall be implemented immediately upon passage. Quote Link to comment Share on other sites More sharing options...
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