Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The department of public health, hereinafter called the department, is hereby authorized to establish and maintain a homeowners' urea formaldehyde foam insulation program, hereinafter called the UFFI program. Said program shall: establish a testing procedure for the detection of the levels of formaldehyde gas in the ambient air in residential dwellings insulated with urea formaldehyde foam insulation, hereinafter called UFFI, in order to achieve uniformity of testing; establish a listing of approved testing and UFFI removal services in the commonwealth; reimburse owners of residential dwellings insulated with UFFI for the cost of testing the levels of formaldehyde gas in the ambient air, such reimbursment to be paid from the UFFI Trust Fund established pursuant to section four; and provide payments from said fund for the reasonable cost of removal of UFFI from any such residential dwelling, or for other remedial relief to be defined by regulation by the commissioner of public health, hereinafter called the commissioner, when either the level of formaldehyde gas is greater than 0.10 parts per million or an occupant of the dwelling has suffered adverse health effects from the presence of UFFI in said dwelling.

SECTION 2. Any owner of a residential dwelling located in the commonwealth insulated with UFFI prior to December thirty-first, nineteen hundred and eighty, may apply for and receive payment out of the UFFI Trust Fund, for testing the ambient air level for formaldehyde gas in said dwelling, upon providing suitable evidence of the installation of UFFI in said dwelling. Said testing shall be by a testing service approved by the department and by means of testing procedures established by the department. The department shall be provided with a copy of the test results.

SECTION 3. Any owner of a residential dwelling located in the commonwealth insulated with UFFI may apply for and receive payment from said trust fund, for the reasonable cost of removal of UFFI from said dwelling, or for other remedial relief to be defined by the commissioner by regulation, when either: (1) the level of formaldehyde gas is greater than 0.10 parts per million, according to a testing service approved by the department, using testing procedures established by the department, or (2) an occupant of the dwelling has suffered adverse health effects from the presence of UFFI in said dwelling. The commissioner shall define by regulation the meaning of reasonable cost of removal.

For the purposes of this act, adverse health effects shall be deemed to have been demonstrated if: (1) an occupant, after exposure to UFFI in said dwelling, has experienced health effects of a type which can occur in people exposed to formaldehyde or UFFI, and presents evidence of medical evaluation or treatment relative to such health effects; or (2) an occupant presents evidence of medical evaluation or treatment for health effects which his physician reasonably believes are related to exposure to formaldehyde or UFFI in said dwelling, and, in either case, there is no objection from the three member panel established by this section.

Applications for payment for removal of UFFI based upon an air level of formaldehyde gas greater than 0.10 parts per million shall be accompanied by a statement from a testing service approved by the department, stating the test results and describing the testing procedure used.

Applications for payment for removal of UFFI based upon an occupant's having suffered adverse health effects shall be accompanied by such documentation as the commissioner shall specify by regulation. Such applications shall be reviewed by a three-member panel consisting of a physician who is trained in immunology, a toxicologist, and an industrial hygienist. Members of the panel shall be appointed by the commissioner for three year terms, except that initially one member shall be appointed for a one year term and one member shall be appointed for a two year term. Persons appointed to fill vacancies shall serve for the unexpired term of said vacancy. Each member of the panel shall receive not less than one hundred dollars for each day or part thereof for his services and shall also receive all reasonable expenses actually and necessarily incurred in the performance of his official duties. If the decision of the panel is adverse to an applicant, the applicant shall have an opportunity to present oral testimony in support of his application before the panel. If, after hearing such testimony, the decision of the panel remains adverse to the applicant, the applicant may seek judicial review, in accordance with the provisions of chapter thirty A of the General Laws.

Any owner of a residential dwelling which was formerly insulated with UFFI and from which the UFFI was removed by or at the direction of said owner prior to the effective date of this act, may qualify to receive payment for the reasonable cost of removal of UFFI if he has not previously received payment for such removal from any source and either: (1) the level of formaldehyde gas was tested prior to said removal and found to be greater than 0.10 parts per million by a laboratory using a reasonable test method; or (2) an occupant of said dwelling suffered adverse health effects within the meaning of this section, prior to said removal; or (3) the owner removed the UFFI for valid economic reasons, including the sale of said dwelling, and provides a demonstration of reasons therefor, including documentation of inability to secure a mortgage or a buyer, or of otherwise having been compelled to sell said dwelling at a price substantially lower than fair market value.

SECTION 4. There shall be established on the books of the commonwealth a separate trust fund to be known as the UFFI Trust Fund. Said fund shall consist of moneys donated or contributed to the UFFI program by persons, corporations, companies or entities previously engaged in the business of manufacturing, distributing, or installing, or which acted as wholesalers or retailers of UFFI or its component ingredients for use in the commonwealth, hereinafter called the industry, and all other monies credited or transferred thereto from any other fund or source pursuant to law. For the purpose of this section, component ingredients of UFFI shall mean urea formaldehyde resin and foaming agent. The amount of said donations or contributions shall be based upon criteria established by the commissioner, with the advice of the UFFI advisory council created by section eight, taking into account such factors as the proportionate share of the commonwealth UFFI market occupied by the various industry members and any other factors which the commissioner with the advice of the UFFI advisory council believes may lead to a reasonable and equitable distribution of contributed shares. In the course of determining the amount of such donations or contributions for each industry member, the commissioner shall determine which, if any, affiliates, subsidiaries or parent companies of such industry member shall be subject to the protection against private rights of action and any other benefits conferred upon industry members making contributions pursuant to this act. Donations and contributions to the trust fund by industry members and participation in the trust fund by owners of residential dwellings shall be voluntary; provided, however, that the decision of the commissioner as to the amount of donations or contributions by particular industry members to the UFFI Trust Fund and the amount of payments to be made from the trust fund to such owners shall be final and not subject to judicial review, either directly or by certiorari or otherwise.

The revenue received from donations or contributions made under this section shall be kept in the trust fund separate and apart from all other monies received by the commonwealth. The treasurer of the commonwealth shall be the custodian of the trust fund. The monies in the trust fund shall be invested by the treasurer in accordance with law; provided, however, that the treasurer shall make no investments that prevent the treasurer from making timely payment of disbursements. Interest income and dividends from such investments shall be credited to the fund.

The treasurer shall make payments from the trust fund on the submission of a warrant listing all payments to be made, which has been approved in writing by the commissioner of public health or his designee.

The books and records of the trust fund shall be subject to an annual audit by the auditor of the commonwealth.

The UFFI Trust Fund shall be expended for providing payments or reimbursements to owners of residential dwellings in the commonwealth insulated with UFFI, pursuant to the UFFI program established by this act. Up to ten per cent of the UFFI Trust Fund, not to exceed one hundred thousand dollars annually, may be expended by the commissioner for the ongoing administrative costs of the UFFI Trust Fund.

Any industry member who fails to contribute a reasonable amount to the UFFI Trust Fund, as determined by the commissioner with the advice of the UFFI advisory council pursuant to the provisions of this section, shall not be entitled to any of the rights or benefits conferred under the provisions of this act. The commissioner or his designee may notify all persons, manufacturers, distributors, installers and entities otherwise doing business in the commonwealth related to the production of UFFI of the existence of the UFFI program, enter into contribution agreements with said persons or businesses, and perform all other duties necessary to authorize payments from said fund.

SECTION 5. Any owner of a residential dwelling in the commonwealth which was insulated with UFFI and who meets the criteria established in section three may elect to participate in the UFFI trust fund; provided, however, that no more than one payment from the trust fund may be made with respect to any one dwelling. Private rights of action which presently exist shall not be impaired; provided, however, that any person who obtains payment for relief from the UFFI trust fund shall, as a condition of such payment, waive all his private rights of action, including actions for damage to health, if the cause or consequence of such damage to health was reasonably discoverable at the time payment for removal of UFFI was received, against any industry member who has contributed to the UFFI Trust Fund an amount as determined by the commissioner pursuant to section four. If the cause or consequence of such damage to health was not reasonably discoverable at the time payment for relief was received, such private rights of action for such damage, including rights of action for latent effects or disease, are hereby preserved.

Any industry member who contributes to the UFFI Trust Fund, an amount determined by the commissioner pursuant to section four, shall waive all pending or prospective claims challenging the UFFI Trust Fund or the regulations of the department governing the ban and repurchase of UFFI. Any such industry member shall have no obligation or liability under regulations of the department governing repurchase of UFFI.

Any person who obtains payment for removal of UFFI from the UFFI Trust Fund shall assign to the department all claims under the repurchase regulations against industry members who have not contributed a reasonable amount to the UFFI Trust Fund, as determined by the commissioner pursuant to section four.

SECTION 6. The department shall establish procedures for removal of UFFI in conformity with current scientific knowledge, shall approve those firms and individuals qualified to remove UFFI, and shall publish and issue a list of such approved firms and individuals.

In order to qualify for receipt of payment for the removal of UFFI from the UFFI Trust Fund, an owner of a residential dwelling containing UFFI shall engage the services only of an approved firm or individual to perform such removal, unless such owner is approved and performs such removal himself, or unless the removal of UFFI took place prior to the effective date of this act.

SECTION 7. The department shall establish a hotline program, so-called, for the purpose of informing the public about the UFFI program and other provisions of this act.

SECTION 8. There is hereby established a UFFI advisory council, consisting of the commissioner of public health or his designee, and four members to be appointed by the governor, one of whom shall be a UFFI homeowner and one of whom shall be a representative of the UFFI industry. Said appointed members shall serve for three year terms and shall advise the department of public health on the implementation and administration of this act. Said council shall file an annual report detailing revenues and expenditures, with the clerks of the senate and the house of representatives on or before the last Wednesday of December.

SECTION 9. No real estate agent, broker or salesman licensed under the provisions of chapter one hundred and twelve of the General Laws, and no bank or other lending institution which offers a mortgage on a residential dwelling containing UFFI, shall be liable for any damage to health resulting from exposure to UFFI; provided, however, that the seller of the dwelling has stated to such real estate agent, broker, salesman, bank or lending institution that he has made, prior to closing, the disclosure to the purchaser specified by section twelve I of chapter two hundred and fifty-five of the General Laws.

No seller of a residential dwelling containing UFFI shall be liable for any damage to health resulting from exposure to UFFI, provided, however, that he has made the disclosure to the purchaser specified by section twelve I of said chapter two hundred and fifty-five prior to the sale of such dwelling.

A landlord of a residential dwelling containing UFFI shall, prior to entering into any lease or rental agreement, or, in the case of existing tenants, upon discovery that UFFI is present in dwelling, disclose to such tenant or prospective tenant the presence of UFFI and the formaldehyde level of the premises. No landlord of a residential dwelling containing UFFI who makes such disclosure shall be liable to any person for any damage to health resulting from exposure to UFFI in such dwelling.

Any seller or landlord of a residential dwelling containing UFFI shall have the obligation to determine the presence of UFFI, and any such seller shall make the disclosure required by section twelve I of said chapter two hundred and fifty-five.

SECTION 10. Chapter 112 of the General Laws is hereby amended by inserting after section 87AAA the following section:-

Section 87AAA?. No real estate agent, broker or salesman licensed under the provisions of this chapter, shall refuse to offer for sale or otherwise discriminate in any manner, including by written or oral statement, in the sale, lease, or purchase of a residence, house or dwelling, against homeowners of dwellings with urea formaldehyde foam insulation where the indoor ambient formaldehyde level is 0.10 parts per million or below.

SECTION 11. Chapter 167 of the General Laws is hereby amended by adding the following section:-

Section 47. No bank, lending institution or mortgagee doing business in the commonwealth, which for the purpose of this section shall include any bank as defined in section one and shall include any national bank, national banking association, federal savings bank, federal savings and loan association, and federal credit union, shall discriminate in any manner in the financing of a home or dwelling, against homeowners or dwellings where the indoor ambient formaldehyde level is 0.10 ppm or below. Said banks, lending institutions, or mortgagees shall be relieved from all liability resulting from urea formaldehyde foam insulation (UFFI), if the seller, buyer, or mortgagor has disclosed the presence of UFFI and the formaldehyde level in the ambient air of the home or dwelling to the bank, lending institution, or mortgagee. A statement from the seller, buyer, or mortgagor that there is no UFFI in the home shall relieve such lending institution or mortgagee from all liability resulting from UFFI. Nothing contained in this section shall restrict the right of any bank, lending institution or mortgagee to process or deny a mortgage application in accordance with accepted underwriting practices or criteria.

SECTION 12. Chapter 225 of the General Laws is hereby amended by inserting after section 12H the following section:-

Section 12I. Any person offering for sale a residential dwelling insulated with urea formaldehyde foam insulation, hereinafter called UFFI, shall determine whether UFFI is in the dwelling and, if it is, shall have the dwelling tested for formaldehyde gas and shall make the following disclosure to any prospective purchaser: (1) where such UFFI is located within the building, and, if known, when it was installed; (2) a copy of the test results; and (3) a copy of information developed by the department of public health concerning formaldehyde levels in dwellings insulated with UFFI and dwellings not insulated with UFFI.

The commissioner of public health shall provide by regulation for the form of notice which meets the requirements of this section.

SECTION 13. Upon receipt by the state treasurer and receiver general of the sum of seven hundred and fifty thousand dollars for this program from industry members, the UFFI Trust Fund shall become operative and payments may be made therefrom.

The commissioner shall submit to the advisory council and the clerk of the house of representatives a semiannual report detailing the amount of funds received from industry members, and the costs of implementing the provisions of this act based on the number of approved requests for funding.

In the event that the monies in the UFFI Trust Fund are insufficient to provide for the needs of qualified applicants to the UFFI program, applicants whose applications are pending and prospective applicants at the time such fund is exhausted shall have no right to any payment or testing from the UFFI program, the department of public health, or the commonwealth, but shall retain all private rights of action. Upon certification by the commissioner of public health to the treasurer that moneys remaining in the trust fund after the purposes of this act have been completed are not needed for implementation and operation of this act, said moneys shall be returned to industry donors or contributors in proportion to their donations or contributions; provided, however, that the department and the commonwealth shall not be liable to industry members or UFFI homeowners for such certification.

SECTION 14. The commissioner of public health may promulgate such rules and regulations as may be necessary to carry out the provisions of this act.

SECTION 15. This act shall take effect July first, nineteen hundred and eighty-six.