Understanding Black Mold Assessment and Remediation – Don’t Get Duped

In the aftermath of the 2017 hurricanes, black mold has become one of the most critical issues encountered during building repair and reconstruction. You need to know:

1) what regulations are applicable for your location,

2) what is required and what is not, and,

3) what you can control.

What is and is not Regulated?

Unlike asbestos, black mold is not regulated by federal laws. Instead, EPA has issued guidance and left it up to states to govern what should be done.  Most states, in fact, have no regulations

Fortunately, two of the states suffering the most hurricane damage in 2017, Texas and Florida, have robust mold assessment and remediation licensing regulations to help prevent a flood (no pun intended) of scam artists and fly-by-night “mold” experts. However, there are no regulations that govern how the work will be conducted. The scope of work is left to the discretion of the licensed contractor who writes the plan.

Along these lines, keep in mind that THERE ARE NO AIR STANDARDS FOR MOLD.  Don’t let someone talk you into taking air samples to determine whether mold needs to be remediated, because there are no standards for comparison or to determine what is healthy or unhealthy. EPA mentions that you can compare indoor mold counts with outdoor mold counts, but such a procedure introduces third-party factors, such as humidity.

Texas and Florida regulate the licensing of mold professionals, who design the procedures for assessing the presence of mold and determine what needs to be done to remove or eliminate the mold. The Texas regulations are at 16 Texas Admin. Code Chapter 78, and the Florida Regulations are at Title XXXII Chapter 468 Part XVI.

Please note that as of November 1, 2017, the licensing and regulation of mold professionals was transferred from the Texas Department of State Health Services (the agency that licenses asbestos professionals) to the Texas Department of Licensing and Regulation. So, make sure you are looking at the correct regulations and talking to the correct agency.

Texas and Florida Mold Requirements

Texas and Florida have extensive licensing requirements for mold professionals.  As with asbestos assessment and abatement, both states require different licenses for difference types of work. Since I office in Texas, I’ll describe what Texas regulates; however Florida is similar. Texas regulates the licensing of:

  • Mold Assessment Technician (sampler)
  • Mold Assessment Consultant (writes the sampling work plan)
  • Mold Assessment Company
  • Mold Remediation Worker
  • Mold Remediation Contractor (writes the remediation work plan)
  • Mold Remediation Company
  • Mold Analysis Laboratory
  • Mold Training Provider

Each individual license has its own training requirements (trainers must also be licensed). A license holder must maintain an office in Texas and can hold multiple licenses, but a person may not perform both mold assessment and mold remediation on the same project.

As you can see, there may be lots of people involved in mold remediation, which provides for checks and balances.

What’s Good About the Regulations?

In Texas, the license holder must issue a Certificate of Mold Remediation to the property owner within 10 days after completing the remediation. If the owner sells the property, the property owner must provide all certificates issued within the last 5 years. (Tex. Occupations Code Title 12, Section 1958.154).

While such a disclosure may seem ominous, the good news is a property owner is not liable for damages related to mold remediation on a property as long as a Certificate of Mold Remediation was issued and the damage occurred on or before the date the certificate was issued.

Potential Issues

Disagreeing with the Recommended Protocol

I have become pretty cynical over the years, but maybe that’s my job. My biggest concern about these regulations is if an assessment or remediation Consultant writes too broad a scope of work, resulting in wasted expense. For example, what if a remediation protocol written by the Consultant specifies drywall removal when the use of a disinfectant will suffice? Therefore, I recommend having an attorney oversee the mold workers and have the draft scope of work sent to the attorney for review and protection as a confidential attorney work product.  Then, the attorney can confer with the mold consultant to revise the plan, if needed, or recommend hiring someone else.

Work Completed During the Harvey Disaster

As a result of Hurricane Harvey, the mold assessment (i.e. pre-remediation) requirements were waived during the governor’s disaster declaration (through November 20, 2017). In addition, out-of-state companies could do work without a license if they registered with the State. HOWEVER, unlicensed companies could not issue a Certificate of Mold Remediation. So, the liability protection offered by a Certificate would not take affect unless the Certificate was signed by a licensed assessment consultant or remediation contractor.

Conclusion

Make sure you or your attorney are familiar with the applicable mold remediation rules (if any) in your jurisdiction. Don’t be duped into paying for air monitoring or other unnecessary work.

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Thanks to Gary Rosen for a great article on the differences between EPA and IICRC mold guidance on the differences between EPA and IICRC mold guidance.

 

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