Why The Ohio Indoor Safe Air Act Should Not Be Passed

Of course I am an advocate for safe air. Toxic air has made me ill. (ICYMI, mold in buildings due to water infiltration can cause illness.)

But I am also an advocate for clarity and feasibility in laws. Even though ironically the lack of clarity and problems with laws are what have paid my bills for many years as a lawyer. I also advocate for laws that actually help people, not word salad like the proposed Ohio law that will not help renters/prospective renters of residences and home buyers/prospective home buyers.

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Although the bill was presented in 20211 by state representatives, it seemingly hasn’t made it out of the state house committee as of yet2, and with any luck, the way it is written, it will not.

The Definition of Mold

The bill defines mold as “microscopic fungi, bacteria, mycobacteria, and actinomycetes that can grow in damp conditions in the interior of a building” (proposed Sec. 3723.30(A)). I am no doctorate of microbiology, but I passed high school biology so I think I am intelligent enough to tell you that that mold is vastly different from bacteria. ICYMI, there are different classes of microorganisms and bacteria and fungi are different classes and mold is a type of fungi3. My understanding is the term “mycobacteria” is duplicative of “actinomycetes” as mycobacteria is a genus of species in the actinomycetes phylum4. The reason for these fancy science terms in a bill is beyond me - I believe laws should be simple enough for middle school students to understand - if you need a doctorate in microbiology to understand a law, how do you expect people to follow it?

I also do not like these definitions as they indicate that mold and actinomycetes cannot exist outside “damp conditions in the interior of a building”, which is untrue. Actinomycetes are prevalent bacteria in skin and soil - some are good, some are bad.

The Proposed Terms Do Not Help Renters/Prospective Renters and Home buyers/Prospective Home buyers

Those advocating for the proposed law have not read the provisions carefully as they seem to think the proposed law will help renters and schoolchildren. It won’t. The proposed law only requires “a person or public entity that sells, transfers, or rents commercial or industrial real property and that knows or has reasonable cause to believe that mold is present to disclose that knowledge” (proposed Section 3723.30(B)(1).

Section 1311.85(B) of the Ohio Code states that commercial real estate is “any parcel of real estate […] other than real estate containing one to four residential units. ‘Commercial real estate’ does not include single-family residential units such as condominiums, townhouses, manufactured housing, or homes in a subdivision when sold, leased, or otherwise conveyed on a unit-by-unit basis, even though these units may be a part of a larger building or parcel of real estate containing more than four residential units. ‘Commercial real estate’ also does not include real estate owned by a public authority”. Renting a townhouse? In public housing? The proposed law means the landlord doesn’t have to tell you there is mold. The definition of commercial real estate is a bit more simple in Section 2329.01(A)(1) of the Ohio Code, simply defining it as “as any property that is not residential property.”

I could not find any state law defining “industrial property” as the proposed law provides, which makes sense, because Ohio law already provides that “industrial property” is “commercial property”.

The good news - existing laws require landlords to provide habitable environments for tenets and home sellers are required to disclose material defects such as mold to prospective home buyers. Nonetheless, these laws can be improved upon by requiring people to disclose more information about water infiltration events that cause mold which can harm human and animal health. We should have laws to ensure the safety of our indoor air but Ohio’s proposed law does not seem it will be of much help.

Ohio’s proposed law also requires the director of health “Every five years, review technology or treatment techniques for mold identification and remediation that provide additional protections to public health and safety. The review shall be performed in accordance with rules adopted under this section and include an examination of any new scientific evidence that indicates that mold may present a greater health risk to the public than previously determined.” ((proposed Section 3723.30(B)(2)). The problem with this verbose provision is it seems to indicate that physicians are the ones who should be consulted about mold identification and remediation as the only other provision that appears to relate back to this provision is Section 3723.30(3)(B) stating the Department of Health “may consult with any medical research institution that has staff who are knowledgeable on mold”. Not certified industrial hygienists. Not scientists. No one with actual good credentials at performing these tasks. No one whom a court would allow as an expert on mold identification and mold remediation. The problem is physicians may be knowledgeable in treating mold illness, but they generally lack the expertise to identify mold and remediate mold as that is outside the scope of their work.

In any event, I think it is apropos to cite Saint Bernard, the 12th Century Abbot of Clairvaux in France, who has been attributed to saying “the road to hell is paved with good intentions”.