S.896 (Marcellino) / A.4387 (Koon)




S.896 (Marcellino) / A.4387 (Koon)


Enacts Toxic Mold Protection Act



The Business Council of New York State, Inc. has reviewed the above referenced legislation and opposes its enactment as it is currently drafted. This legislation is referred to as the Toxic Mold Protection Act, however the definition of mold is extremely broad. Under the provisions of this bill mold is defined as "any form of multicellular fungi that live on plant or animal mater and in indoor environments. Types of mold include, but are not limited to, cladosporium, penicillium, alternaria, aspergillus, fusarium, trichoderma, memnoniella, mucor and stachybotrys chartarum, often found in water damaged building materials." There is however, no definition of "toxic mold".

Section 4812 allows for the consideration of the feasibility of adopting permissible exposure limits to mold in indoor environments. The bill further states in Section 4813 that the Health Department shall consider the adoption of practical standards to assess the health threat posed by the presence of mold in indoor environment and determine whether the presence of mold constitutes mold infestation.

The bill language also states that in considering adoption of health risk assessment standards for molds the standards shall "not require air or surface testing to determine whether the presence of mold constitutes mold ...". Air and surface testing are scientifically valid methods of determining presence of mold. To purposefully eliminate these objective scientific methods renders any assessment less than complete.

The proposed legislation states that identification standards for mold "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, and measurements of moisture and presence of mold." The legislation is technically flawed. Earlier in the bill, the sponsors state that air or surface testing to determine health risk assessment is not to be used. However, they then state that for the purposes of identification of mold air and surface samples should be used. There must be consistency.

Further, the presence or lack of visual identification or olfactory identification are subjective. Additionally, just because you have a presence of moisture does not indicate the presence of mold.

The bill also raises questions regarding the lack of use of specially qualified professionals to conduct the mold remediation. In section 4815 2(g) the bill states that a landlord, owner, seller, or transferor does not need to utilize the services of a specially qualified professional. The legislation addresses the potential toxicity of mold yet does not require qualified professionals to remediate.

The Business Council of New York State, Inc. a statewide association of more than 3,500 companies, chambers of commerce, and trade associations has reviewed the aforementioned legislation and urges that the bill be held.