Less Than 10 Square Feet of Mold (Rule?) Part 2

The first thing one needs to understand is what The Law is and isn’t. It isn’t a procedural standard (i.e., it doesn’t provide principles or procedures for mold remediation or assessment), like the Institute of Inspection, Cleaning, and Restoration Certification (IICRC) S520 Standard for Professional Mold Remediation. It is a law that establishes the following: 

1. Circumstances whereby a license is required to perform a mold assessment or mold remediation;
2. The criteria and process to license someone as a mold assessor or mold remediator;
3. Processes for departmental review and revocation of one’s mold assessor or mold remediator license; and,
4. Places the responsibility for daily execution of The Law to the DBPR’s construction division. 

Nowhere in The Law does it state anything about PPE, air filtration devices, containment barriers, or other engineering controls. 

The Question of PPE & Engineering Controls: 

The threshold inquiry in evaluating whether a General Duty Clause obligation exists is whether there is a hazard. A hazard “is not defined in terms of the absence of a particular abatement method.” Rather, it is defined “in terms of the physical agents that could injure employees.” (Chevron Oil Co., 11 OSH Cas.) The employer doesn’t have to know the hazard or hazardous conduct exists, either. The courts and Review Commission have established that the industry in which the employer engages only needs recognize the known, potential, or suspect hazard. Many term this “industry-based knowledge”. 

So, what does all of this mean in terms of engineering controls and PPE on mold remediation projects? 

Do you see the key terms used in this standard that ties into what we’ve discussed in occupational safety and health law? The hazard, as defined by the standard, is mold (thus its name), and its states that “engineering controls eliminate or reduce the hazard” something we’ve seen the courts and Review Commission seeks to enforce through the General Duty Clause. 

The S520 goes on, from there, to discuss air filtration devices, containment barriers, PPE, and other forms of administrative, engineering, and PPE controls. 

Why the State of Florida Excluded PPE & Engineering Controls in The Law:

I can only speculate on the reasons why. My inclination is to believe that it has to do with federal laws that restrict a state’s right to establish its own safety and health laws. For example, under 29 USC 667, federal law has established States’ jurisdiction and procedures for establishing and maintaining its own plans. The requirements provide legislatures the challenge of meeting the on-going supervision and critique of OSHA while attempting to meet local political demands. Another possibility is that there weren’t the time or professional body to establish a state-specific replacement for the General Duty Clause and S520. Whatever the reason, the language isn’t there. So, when someone tells you that the extent of continuously visible mold growth indicates no engineering controls or PPE are necessary, seek out a competent indoor environmental consultant (e.g., Gulf Coast Center for Indoor Air Quality Services) to provide a site-specific mold assessment and protocol (i.e., corrective action plan for mold remediation) and consultation for everyone’s safety and health. To learn more about how we can serve you, contact us here.