The New York legislature just joined a small, but growing national trend of requiring licensure of mold contractors. The law was drafted in response to concerns that came to light after Superstorm Sandy. The huge demand for mold cleanup efforts gave rise to some unscrupulous contractors who either did not have the skill set to properly remediate, held themselves out as being able to provide services for which they were not trained, or overcharged for services.
The problem is that New York bill A5117C / S3667D does not contain sufficient penalty provisions, requires training and certification of only select mold workers, restricts consumer choice, and does not require photographic documentation or third party verification that the mold was properly removed.
Even more problematic, the civil penalties are capped at $2,000 for the first violation and $10,000 thereafter. These low sanctions may cause some contractors to view fines for violating the law as just a cost of doing business -- especially since the bill contains no criminal penalties (as does Florida). Even Texas has administrative penalties of up to $5,000 per day of violation, giving teeth to its mold certification and training law.
Let me explain.
Section 936 of bill A5117C / S3667D prohibits a contractor from both (1) conducting a mold assessment and then (2) remediating the mold. The mandate makes no more sense than requiring a cancer patient to go to one doctor for diagnosis and then to another doctor for treatment. Just like cancer patients, those with buildings infested with mold may want second opinions, but they should not be required to get one before undergoing treatment.
New Jersey recommends, but does not require, that consumers use different assessors and remediators. Maine mandates that contractors disclose there may be a conflict of interest, but allows consumers to decide.
The best way to prevent exaggeration of the mold conditions and necessary remediation is to obligate photographic documentation of all mold growth. Requiring mold remediators to create an audit trail would aid in evaluation of alleged misconduct.
The mold law should also require final clearance by a third party for mold in the same manner that is now expected for lead and asbestos abatement and remediation. Having no third party verification for mold removal is like having a surgeon operate on a cancerous tumor and declaring the cancer gone without having a pathologist check to be sure all was removed.
Finally, A5117C / S3667D fails to protect tenants and workers employed in large rental complexes. The bill expressly excludes landlords who remediate mold using in-house employees. In New York City, 69 percent of the population rents. Thus, over 4-million people in NYC (including 400,000 NYCHA residents alone) are not protected by the mold law. The mold certification and training requirements should apply to all those engaged in mold remediation, whether working in-house or hired.
New York should learn from other states. Virginia enacted mold legislation similar to A5117C / S3667D and then repealed it after finding the program did not work. Maryland found its mold program too expensive to operate.
Governor Cuomo should veto the legislation. A new mold bill should be written that includes stiff penalties. The bill should also require:
1. training of all mold workers;
2. photographic documentation; and
3. Third party verification that mold remediation is properly completed.
Geltman is the author of seventeen books on environmental and natural resources policy and is an Associate Professor & Program Director for Environmental & Occupational Health Sciences at the School of Urban Public Health at Hunter College and the City University of New York (CUNY) School of Public Health. She is coordinating with the CUNY School of Journalism on the Stop the Mold project.