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A04759 Summary:

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A04759 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4759
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 5, 2015
                                       ___________
 
        Introduced by M. of A. KAMINSKY -- read once and referred to the Commit-
          tee on Labor
 
        AN ACT to amend the labor law, in relation to requiring the licensure of
          mold  assessment  and remediation specialists and setting minimum work
          standards for mold assessment and remediation  specialists;  to  amend
          chapter  551  of  the  laws of 2014 amending the labor law relating to
          requiring the licensure of mold assessment and remediation specialists
          and setting minimum work standards for mold assessment and remediation
          specialists, in relation to the effectiveness thereof; and  to  repeal
          section  97-pppp of the state finance law relating to the mold assess-
          ment and remediation account
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 32 of the labor law, as added by chapter 551 of the
     2  laws of 2014, is amended to read as follows:
     3                                  ARTICLE 32
     4          LICENSING OF MOLD INSPECTION, ASSESSMENT AND REMEDIATION
     5                   SPECIALISTS AND MINIMUM WORK STANDARDS
 
     6    Title  1.  Licensing  of  mold  inspection, assessment and remediation
     7               specialists and minimum work standards (Secs. 930-940.)
     8          2. Minimum work standards for the conduct  of  mold  assessments
     9               and remediation by licensed persons (Secs. 945-948.)
 
    10                                   TITLE 1
    11          LICENSING OF MOLD INSPECTION, ASSESSMENT AND REMEDIATION
    12                   SPECIALISTS AND MINIMUM WORK STANDARDS
    13  Section 930. Definitions.
    14          931. Licensing requirements.
    15          932. License; procedure.
    16          933. Exemptions.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08891-01-5
        A. 4759                             2
 
     1          934. License issuance and renewal.
     2          935. Practice by license holder.
     3          936. Licensee duties; prohibited activities.
     4          937. Civil penalties and revocation.
     5          938. Denial of license; complaints; notice of hearing.
     6          939. Judicial review.
     7          940. Rulemaking authority.
     8    § 930. Definitions. As used in this article: 1. "Department" means the
     9  department of labor.
    10    2.  "Mold" means any indoor [mold] multi-cellular fungi growth capable
    11  of creating toxins that can cause pulmonary,  respiratory,  neurological
    12  or  other  major  illnesses  after minimal exposure, as such exposure is
    13  defined by the environmental  protection  agency,  centers  for  disease
    14  control  and prevention, national institute of health, or other federal,
    15  state, or local agency organized to study and/or protect human health.
    16    3. "Mold remediation" means conducting the business of removal, clean-
    17  ing, sanitizing, or surface disinfection of mold, mold containment,  and
    18  waste  handling  of mold and materials used to remove mold from surfaces
    19  by a business enterprise, including but not limited to, sole proprietor-
    20  ships. Mold remediation for the  purposes  of  this  article  shall  not
    21  include  remediation  of  the underlying sources of moisture that may be
    22  the cause of mold that requires expertise not specific to  acts  author-
    23  ized under this article.
    24    4. "Mold assessment" means an inspection or assessment of real proper-
    25  ty  that  is  designed  to  discover  [indoor]  mold [growth, toxic mold
    26  growth], conditions that facilitate [indoor] mold [growth and/or], indi-
    27  cia of conditions that are likely to facilitate [indoor] mold  [growth],
    28  or any combination thereof.
    29    5. "Mold abatement" means the act of removal, cleaning, sanitizing, or
    30  surface  disinfection  of  mold, mold containment, and waste handling of
    31  mold and materials used to remove mold from surfaces by an individual.
    32    6. "Project" means mold remediation, mold assessment, or  mold  abate-
    33  ment,  of  areas  greater than ten square feet, but does not include (a)
    34  routine cleaning or (b) construction, maintenance, repair or  demolition
    35  of  buildings, structures or fixtures undertaken for purposes other than
    36  mold remediation or abatement.
    37    7. "Commissioner" means the commissioner of the department of labor.
    38    § 931. Licensing  requirements.  1.  It  shall  be  unlawful  for  any
    39  contractor to engage in mold assessment on a project, or to advertise or
    40  hold themselves out as a mold assessment contractor unless such contrac-
    41  tor has a valid mold assessment license issued by the commissioner.
    42    2.  It  shall be unlawful for any contractor to engage in mold remedi-
    43  ation on a project, or to advertise or hold themselves  out  as  a  mold
    44  remediation  contractor  unless such contractor has a valid mold remedi-
    45  ation license issued by the commissioner.
    46    3. It shall be unlawful for any individual to engage in mold abatement
    47  on a project or to advertise or hold themselves out as a mold  abatement
    48  worker  unless  such individual has a valid mold abater's license issued
    49  by the commissioner.
    50    4. A copy of a valid mold assessment or mold remediation license  must
    51  be conspicuously displayed at the work site on a mold project.
    52    5.  (a) Nothing in this article shall prohibit any design professional
    53  licensed pursuant to title eight of the education  law  from  performing
    54  mold inspection, assessment, remediation and/or abatement tasks or func-
    55  tions  if  the person is acting within the scope of his or her practice,
    56  or require the design professional to obtain a license under this  arti-
        A. 4759                             3
 
     1  cle  for  such  mold inspection, assessment remediation and/or abatement
     2  tasks or functions.
     3    (b)  Nothing  in  this  article  shall  mean  that  any individual not
     4  licensed pursuant to title eight of the education law may perform  tasks
     5  or  functions  limited to the scope of practice of a design professional
     6  under such title.
     7    § 932. License; procedure. 1. The commissioner shall establish minimum
     8  qualifications for licensing.
     9    2. Applications for licenses and renewal licenses shall  be  submitted
    10  to  the  [department]  commissioner in writing on forms furnished by the
    11  commissioner and shall contain the information set forth in this section
    12  as well as any additional information that the commissioner may require.
    13    3. An applicant for a license to perform mold  assessment  shall  meet
    14  the following minimum requirements:
    15    (a) be eighteen years of age or older;
    16    (b)  have  satisfactorily completed [department] commissioner approved
    17  course work, including training on  the  appropriate  use  and  care  of
    18  personal  protection  equipment  [as approved by the commissioner of the
    19  department of health]; [and]
    20    (c) paid the appropriate fees as provided in subdivision six  of  this
    21  section; and
    22    (d)  submitted insurance certificates evidencing workers' compensation
    23  coverage, if required, and liability insurance of at least  fifty  thou-
    24  sand  dollars  providing  coverage  for claims arising from the licensed
    25  activities and operations performed pursuant to this article.
    26    4. An applicant for a license to perform mold remediation  shall  meet
    27  the following minimum requirements:
    28    (a) be eighteen years of age or older;
    29    (b)  have  satisfactorily completed [department] commissioner approved
    30  course work, including training on  the  appropriate  use  and  care  of
    31  personal  protection  equipment  [as approved by the commissioner of the
    32  department of health];
    33    (c) paid the appropriate fees as provided in subdivision six  of  this
    34  section; and
    35    (d)  submitted insurance certificates evidencing workers' compensation
    36  coverage, if required, and liability insurance of at least  fifty  thou-
    37  sand  dollars  providing  coverage  for claims arising from the licensed
    38  activities and operations performed  pursuant  to  this  article.    [An
    39  applicant  for  a  license to perform mold remediation shall furnish the
    40  department with a financial statement, prepared by an independent  audi-
    41  tor or accountant and signed by the applicant and auditor before a nota-
    42  ry  public,  stating  the  assets  of  the  applicant, to be used by the
    43  department to determine the financial responsibility of the applicant to
    44  perform mold remediation services.]
    45    5. An applicant for a license to perform mold abatement shall meet the
    46  following minimum requirements:
    47    (a) be eighteen years of age or older;
    48    (b) have satisfactorily completed [department]  commissioner  approved
    49  course  work,  including  training  on  the  appropriate use and care of
    50  personal protection equipment [as approved by the  commissioner  of  the
    51  department of health]; and
    52    (c)  paid  the appropriate fees as provided in subdivision six of this
    53  section[; and].
    54    6. The [department] commissioner shall charge and collect the  follow-
    55  ing non-refundable fees which shall accompany each application:
        A. 4759                             4
 
     1    (a) a fee for an initial application for a license[, not to exceed one
     2  hundred  dollars]  as  determined  by the commissioner, of not less than
     3  five hundred dollars nor more than one thousand dollars for a mold reme-
     4  diation license, not less than one hundred fifty dollars nor  more  than
     5  three  hundred  dollars  for a mold assessment license and not less than
     6  fifty dollars nor more than one hundred dollars for an  individual  mold
     7  abatement license; [and]
     8    (b)  a  fee  for  renewal  of  a  license[,  not to exceed one hundred
     9  dollars] equal to the application fee; and
    10    (c) a fee to be charged to a course provider for review of each course
    11  submitted for approval, as determined by the commissioner, of  not  less
    12  than five hundred dollars and not more than one thousand dollars, and an
    13  additional  fee  to be charged to a course provider of not less than one
    14  hundred dollars nor more than two hundred dollars for review of  changes
    15  of technical content.
    16    §  933.  Exemptions.  The  following  persons shall not be required to
    17  obtain a license as provided in this title  in  order  to  perform  mold
    18  assessment [or], remediation, or abatement:
    19    1.  a residential property owner who performs mold inspection, assess-
    20  ment [or], remediation, or abatement on his or her own property;
    21    2. a non-residential property owner, or the employee  of  such  owner,
    22  who  performs  mold  assessment  [or],  remediation,  or abatement on an
    23  apartment building owned by that person that  has  not  more  than  four
    24  dwelling units; [and]
    25    3. an owner or a managing agent or a full-time employee of an owner or
    26  managing agent who performs mold assessment [or], remediation, or abate-
    27  ment  on commercial property or a residential apartment building of more
    28  than four dwelling units owned by the owner provided, however, that this
    29  subdivision shall not apply if the managing agent or employee engages in
    30  the business of performing mold assessment [or], remediation, or  abate-
    31  ment for the public; and
    32    4. a federal, state or local governmental unit or public authority and
    33  employees  thereof  that perform mold assessment, remediation, or abate-
    34  ment on any property owned, managed or remediated by  such  governmental
    35  unit or authority.
    36    §  934.  License  issuance and renewal. 1. Licenses issued pursuant to
    37  the provisions of this title shall be valid for a period  of  two  years
    38  from  the  date  of  issuance  and may be renewed in accordance with the
    39  conditions set forth in this article and established by the  commission-
    40  er.
    41    2.  Within  thirty  days of the receipt of the application and fee for
    42  any license issued under this section,  the  commissioner  shall  either
    43  issue the license or [deny the license setting forth the reason for such
    44  denial  in  writing] issue a notification of denial pursuant to subdivi-
    45  sion one of section nine hundred thirty-eight of this title.
    46    3. Licenses shall be in a form prescribed by the [department]  commis-
    47  sioner.
    48    4.  The  renewal  of all licenses granted under the provisions of this
    49  article shall be conditioned upon the submission  of  a  certificate  of
    50  completion   of  a  [department-approved]  commissioner-approved  course
    51  designed to ensure the continuing education  of  licensees  on  new  and
    52  existing mold assessment and mold remediation standards.
    53    § 935. Practice by license holder. 1. A mold assessment license holder
    54  who  intends  to  perform  mold assessment on a mold remediation project
    55  shall prepare a work analysis  for  the  project.  The  mold  assessment
    56  license  holder shall provide the analysis to the client before the mold
        A. 4759                             5
 
     1  remediation begins and such plan must include the analysis as defined in
     2  section nine hundred forty-five of this article.
     3    2. A mold remediation license holder who intends to perform mold reme-
     4  diation shall prepare a work plan providing instructions for the remedi-
     5  ation efforts to be performed for the mold remediation project. The mold
     6  remediation  license  holder  shall  provide the work plan to the client
     7  before the mold remediation begins. The mold remediation license  holder
     8  shall maintain a copy of the work plan at the job site where the remedi-
     9  ation is being performed.
    10    §  936.  Licensee  duties; prohibited activities. 1. A mold assessment
    11  licensee who performs mold assessment services shall provide  a  written
    12  report  to  each  person for whom such licensee performs mold assessment
    13  services for compensation.
    14    2. No licensee shall perform both mold assessment and mold remediation
    15  on the same property.
    16    3. No person shall own an interest in both the [entity which] licensee
    17  who performs mold assessment services and the  [entity  which]  licensee
    18  who performs mold remediation services on the same property.
    19    § 937. Civil penalties and revocation. 1. The [department] commission-
    20  er  may,  after  a notice and hearing, suspend or revoke any license, or
    21  censure, fine, or impose  probationary  or  other  restrictions  on  any
    22  licensee for good cause shown which shall include, but not be limited to
    23  the following:
    24    (a)  conviction  of  a  felony  relating  to the performance of a mold
    25  assessment or mold remediation;
    26    (b) deceit or misrepresentation  in  obtaining  a  license  authorized
    27  under this article;
    28    (c) providing false testimony or documents to the [department] commis-
    29  sioner  in relation to a license authorized by this article or any other
    30  license issued by the [department] commissioner;
    31    (d) deceiving  or  defrauding  the  public  in  relation  to  services
    32  provided for a fee that require a license; or
    33    (e) incompetence or gross negligence in relation to mold assessment or
    34  mold remediation.
    35    2.  Violators of any of the provisions of this article may be fined by
    36  the [department] commissioner in an amount not to  exceed  two  thousand
    37  dollars  for  the  initial  violation and up to ten thousand dollars for
    38  each subsequent violation.
    39    § 938. Denial of  license;  complaints;  notice  of  hearing.  1.  The
    40  [department]  commissioner  shall, before making a determination to deny
    41  an application for a license, notify the applicant  in  writing  of  the
    42  reasons for such proposed denial and afford the applicant an opportunity
    43  to  be heard in person or by counsel prior to denial of the application.
    44  [Such notification shall be served in any manner authorized by the civil
    45  practice law and rules for service of summons.] Such notice shall notify
    46  the applicant that a request for a hearing must be  made  within  thirty
    47  days  after  [receipt]  issuance  of  such notification. If a hearing is
    48  requested, such hearing shall be held at such  time  and  place  as  the
    49  [department] commissioner shall prescribe.
    50    2.  If  the  applicant  fails  to make a written request for a hearing
    51  within thirty days after [receipt] issuance of such  notification,  then
    52  the  notification  of denial shall become the final determination of the
    53  [department] commissioner.   The [department]  commissioner  shall  have
    54  subpoena powers regulated by the civil practice law and rules. If, after
    55  such  hearing,  the application is denied, written notice of such denial
        A. 4759                             6
 
     1  shall be served upon the applicant [in  any  manner  authorized  by  the
     2  civil practice law and rules for the service of a summons].
     3    3.  The [department] commissioner shall, before revoking or suspending
     4  any license or imposing any fine as authorized by this article or repri-
     5  mand on the holder thereof[, or before issuing any order  directing  the
     6  cessation  of unlicensed activities,] and at least ten days prior to the
     7  date set for the hearing, notify in writing the holder of such  license,
     8  [or the person alleged to have engaged in unlicensed activities,] of any
     9  charges  made and shall afford such person an opportunity to be heard in
    10  person or by counsel in reference thereto.  No prior notice and  hearing
    11  is required before the commissioner issues an order directing the cessa-
    12  tion of unlicensed activities.
    13    4. Written notice must be served to the licensee or person charged.
    14    5.  The hearing on such charges shall be at such time and place as the
    15  [department] commissioner shall prescribe.
    16    § 939. Judicial review. The action of the commissioner in  suspending,
    17  revoking  or  refusing  to issue or renew a license, or issuing an order
    18  directing the cessation of unlicensed activity or  imposing  a  fine  or
    19  reprimand  may be appealed by a proceeding brought under and pursuant to
    20  article seventy-eight of the civil practice law and rules.
    21    § 940. Rulemaking authority. The [department shall]  commissioner  may
    22  adopt  rules and regulations to oversee the practice of mold assessment,
    23  remediation and abatement and to ensure the health, safety  and  welfare
    24  of the public.
    25                                    TITLE 2
    26                  MINIMUM WORK STANDARDS FOR THE CONDUCT OF
    27            MOLD ASSESSMENTS AND REMEDIATION BY LICENSED PERSONS
    28  Section 945. Minimum  work standards for the conduct of mold assessments
    29                 by licensed persons.
    30          946. Minimum work standards for the conduct of mold  remediation
    31                 by licensed persons.
    32          947. Post-remediation assessment and clearance.
    33          948. Investigations and complaints.
    34    §  945.  Minimum work standards for the conduct of mold assessments by
    35  licensed persons. 1. A mold assessment licensee  shall  prepare  a  mold
    36  remediation  plan  that  is  specific  to  each  remediation project and
    37  provide the plan to the client before the remediation begins.  The  mold
    38  remediation plan must specify:
    39    (a) the rooms or areas where the work will be performed;
    40    (b) the estimated quantities of materials to be cleaned or removed;
    41    (c)  the  methods to be used for each type of remediation in each type
    42  of area;
    43    (d) the personal protection equipment (PPE) to be supplied by licensed
    44  remediators for use by licensed abaters;
    45    (e) the proposed clearance procedures and criteria for  each  type  of
    46  remediation in each type of area;
    47    (f)  when the project is a building that is currently occupied, how to
    48  properly notify such occupants of such projects  taking  into  consider-
    49  ation proper health concerns; the plan must also provide recommendations
    50  for notice and posting requirements that are appropriate for the project
    51  size, duration and points of entry;
    52    (g)  an  estimate  of cost and an estimated time frame for completion;
    53  and
    54    (h) when possible, the underlying sources  of  moisture  that  may  be
    55  causing  the  mold and a recommendation as to the type of contractor who
    56  would remedy the source of such moisture.
        A. 4759                             7
 
     1    2. The remediation plan may  require  containment  [specified  in  the
     2  remediation plan must], as appropriate, to prevent the spread of mold to
     3  areas of the building outside the containment under normal conditions of
     4  use.
     5    3. A mold assessment licensee who indicates in a remediation plan that
     6  a disinfectant, biocide, or antimicrobial coating will be used on a mold
     7  remediation  project  shall indicate a specific product or brand only if
     8  it is registered by the United States  Environmental  Protection  Agency
     9  for  the  intended use and if the use is consistent with the manufactur-
    10  er's labeling instructions. A decision by a mold assessment licensee  to
    11  use  such  products  must  take  into account the potential for occupant
    12  sensitivities.
    13    § 946. Minimum work standards for the conduct of mold  remediation  by
    14  licensed  persons.  1.  A mold remediation licensee shall prepare a mold
    15  remediation work plan that is specific to each project, fulfills all the
    16  requirements of the mold remediation plan developed by the mold  assess-
    17  ment   licensee   as  provided  to  the  client  and  provides  specific
    18  instructions and/or standard operating procedures for how a mold remedi-
    19  ation project will be performed. The  mold  remediation  licensee  shall
    20  provide  the mold remediation work plan to the client before site prepa-
    21  ration work begins.
    22    2. If a mold assessment licensee specifies  in  the  mold  remediation
    23  plan  that  personal  protection  equipment  (PPE)  is  required for the
    24  project, the mold remediation licensee shall provide the  specified  PPE
    25  to  all  employees who engage in remediation activities and who will, or
    26  are anticipated to, disturb or remove mold contamination.  The  contain-
    27  ment,  when  constructed  as  described in the remediation work plan and
    28  under normal conditions of use, must prevent the spread of mold to areas
    29  outside the containment.
    30    3. Signs advising that a mold remediation project is in progress shall
    31  be displayed at all accessible entrances to remediation areas.
    32    4. No person shall remove or dismantle any containment  structures  or
    33  materials  from  a project site prior to receipt by the mold remediation
    34  licensee overseeing the project of  a  notice  from  a  mold  assessment
    35  licensee that the project has achieved clearance as described in section
    36  nine hundred forty-seven of this title.
    37    5. Disinfectants, biocides and antimicrobial coatings may be used only
    38  if their use is specified in a mold remediation plan, if they are regis-
    39  tered  by  the  United  States  Environmental  Protection Agency for the
    40  intended use and if the use is consistent with the manufacturer's label-
    41  ing instructions. If a plan specifies the use of such a product but does
    42  not specify the brand or type of product, a  mold  remediation  licensee
    43  may select the brand or type of product to be used. A decision by a mold
    44  assessment  or remediation licensee to use such a product must take into
    45  account the potential for occupant sensitivities  and  possible  adverse
    46  reactions  to  chemicals  that  have the potential to be off-gassed from
    47  surfaces coated with the product.
    48    § 947. Post-remediation assessment and clearance. 1. For a  remediated
    49  project to achieve clearance, a mold assessment licensee shall conduct a
    50  post-remediation  assessment.    The  post-remediation  assessment shall
    51  determine whether:
    52    (a) the work area is free from all visible mold; and
    53    (b) all work has been completed in  compliance  with  the  remediation
    54  plan and remediation work plan and meets clearance criteria specified in
    55  the plan.
        A. 4759                             8
 
     1    2.  Post-remediation  assessment shall, to the extent feasible, deter-
     2  mine that the underlying cause of the mold has been remediated  so  that
     3  it is reasonably certain that the mold will not return from that remedi-
     4  ated  area.  If  it has been determined that the underlying cause of the
     5  mold  has not been remediated, the mold assessment licensee shall make a
     6  recommendation to the client as to the  type  of  contractor  who  could
     7  remedy the source of the mold or the moisture causing the mold.
     8    3. A mold assessment licensee who determines that remediation has been
     9  successful  shall  issue a written passed clearance report to the client
    10  at the conclusion of each mold remediation project.
    11    4. If the mold assessment licensee determines that remediation has not
    12  been successful, the licensee shall issue a written final status  report
    13  to  the  client  and  to  the  remediation licensee and recommend to the
    14  client that either a new assessment be conducted, that  the  remediation
    15  plan  as  originally developed be completed, or the underlying causes of
    16  mold be addressed, as appropriate.
    17    § 948. Investigations and complaints. The commissioner shall have  the
    18  authority to inspect ongoing or completed mold assessment and mold reme-
    19  diation  projects  and  to  conduct an investigation upon his or her own
    20  initiation or upon receipt of a complaint by any person or entity.
    21    § 2. Section 97-pppp of the state finance law, as added by chapter 551
    22  of the laws of 2014, is REPEALED.
    23    § 3. The opening paragraph of subdivision 3 of section 30 of the labor
    24  law, as added by chapter 162 of the laws of 1993, is amended to read  as
    25  follows:
    26    Except  for  variations concerning provisions, rules, codes, orders or
    27  any other matter affecting asbestos projects, mold  projects  or  safety
    28  and  health standards for public employees, including but not limited to
    29  projects covered by article thirty and section twenty-seven-a and subdi-
    30  vision ten of section two hundred forty-one of this chapter;
    31    § 4. Section 3 of chapter 551 of the laws of 2014 amending  the  labor
    32  law  relating  to requiring the licensure of mold assessment and remedi-
    33  ation specialists and setting minimum work standards for mold assessment
    34  and remediation specialists, is amended to read as follows:
    35    § 3. This act shall take effect on the one hundred eightieth day after
    36  it shall have become  a  law,  provided,  however,  that  the  licensing
    37  requirements  of section 931 of article 32 of the labor law, as added by
    38  section one of this act, shall take effect on the first of January  next
    39  succeeding the date on which it shall have become a law.
    40    §  5.  This act shall take effect immediately; provided, that sections
    41  one, two and three of this act shall take effect on the same date and in
    42  the same manner as chapter 551 of the laws of 2014, takes effect.