ORDINANCE NO. #,###-N.S.
ADDING CHAPTER 12.12 TO THE BERKELEY MUNICIPAL CODE TO REQUIRE CONTROL OF INFECTIOUS AEROSOLS IN CITY BUILDINGS
BE IT ORDAINED by the people of the City of Berkeley as follows:
Section 1. That Chapter 12.12 of the Berkeley Municipal Code is added to read as follows:
Chapter 12.12
CONTROL OF INFECTIOUS AEROSOLS IN CITY BUILDINGS
Sections:
12.12.010 Short Title.
12.12.020 Findings and Purpose.
12.12.030 Definitions.
12.12.040 Adoption of Standards for Control of Infectious Aerosols in City Buildings and Related Requirements in City Buildings.
12.12.050 Duty of City to Maintain and Repair Control of Infectious Aerosols Systems and to Provide Alternative Services.
12.12.060 Noticing and Monitoring Requirements.
12.12.070 Interim Measures.
12.12.080 Private Right of Action.
12.12.090 Amendment.
12.12.100 Severability.
12.12.010 Short Title.
This Chapter shall be known as the “Healthy City Buildings Ordinance.”
12.12.020 Findings and Purpose.
The people of the City of Berkeley find as follows:
A. Airborne transmission of communicable diseases occurs when a susceptible person inhales a sufficient number of active pathogens to cause an infection, i.e., an infectious dose. Engineering design and controls—dilution ventilation, filtration, and air disinfection—can reduce the concentration of active pathogens in the air, which tends to reduce risk of infection. Engineering design and controls are only one element of a well-designed risk management plan. They cannot eliminate risk; however, inadequate control of indoor exposures has been demonstrated to contribute to elevated risk.
B. Explicit requirements for airborne infection risk management have been absent for a century from indoor air quality (IAQ) standards with the exception of those written for health care facilities and laboratories.
C. The COVID-19 pandemic and other infectious airborne disease have caused and continue to cause enormous personal, societal, and economic damage, much of which resulted from the closure of public buildings due to widespread perception (supported by considerable evidence) that they are high-risk environments for infection transmission.
D. Recognizing that indoor environments were not well-prepared to mitigate the risk of COVID-19 transmission, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), a global society aimed at advancing heating, ventilation, and air conditioning (HVAC) technology for the built environment, formed its Epidemic Task Force early in 2020 and developed a large body of guidance regarding ventilation, filtration and air cleaning, air distribution, HVAC system operation, and commissioning for multiple building types that laid the groundwork for the development of ASHRAE Standard 241. The catalyst for the development of Standard 241 was discussion between ASHRAE and the White House COVID-19 Response Team about the need for new and better IAQ standards.
E. Given the persistent threat and transmission of COVID-19, long-COVID and related sequelae, other infectious diseases, and poor indoor air quality due to pollution and wildfire smoke, it is in the public interest to protect health and safety through requiring the City to achieve, implement and maintain in City-owned or City-leased occupied buildings the applicable Minimum Equivalent Clean Airflow Per Person in the Breathing Zone in Infection Risk Management Mode as specified in Table 5-1 of ASHRAE Standard 241-2023 and all applicable engineering standards therein during operating hours.
12.12.030 Definitions.
“Building Occupants” means City employees, City contractors, patrons, customers, inmates, clients, patients, children, or community members.
“Occupied Building” means any City-owned or City-leased building or subdivision thereof, and any and all rooms therein, regularly occupied by Building Occupants during Operating Hours.
“Operating Hours” means the period of time the building is occupied during normal, extended, janitorial hours, or security hours, in connection with performing or maintaining municipal services by City employees or contractors.
“Personal Protective Equipment” means well-fitting respirators equal to or greater than N95 and approved by the National Institute for Occupational Safety and Health.
12.12.040 Adoption of Standards for Control of Infectious Aerosols in City Buildings and Related Requirements in City Buildings.
A. By April 1, 2025, the City shall adopt ASHRAE Standard 241-2023 or a standard of equal or superior stringency for control of infectious aerosols in all Occupied Buildings and implement the requirements so adopted.
B. When the Authority Having Jurisdiction as specified in ASHRAE Standard 241-2023 is the City or an agency or agent of the City, in no case shall the Authority Having Jurisdiction implement, interpret or apply any standards, specifications, or requirements of ASHRAE Standard 241-2023 in a manner less stringent than set forth therein.
C. Notwithstanding any exceptions or voluntary provisions embedded in ASHRAE Standard 241-2023 and except as provided by Section 12.12.050(B) and (C), at a minimum, the City shall achieve, implement and maintain in Occupied Buildings the applicable Minimum Equivalent Clean Airflow Per Person in the Breathing Zone in Infection Risk Management Mode as specified in Table 5-1 of ASHRAE Standard 241-2023 and all related and applicable engineering standards therein indefinitely during Operating Hours. In so doing, the City shall not use any air filtration or air disinfection technologies that emit ozone, volatile organic compounds, oxidation byproducts, or excessive decibels, and shall not install any ultraviolet light disinfection technology in such a manner that the light will come into contact with human skin.
D. The City acknowledges that any compromise, disrepair, or malfunction of ventilation, filtration, or air disinfection systems related to meeting the requirements of this section may harm Building Occupants.
12.12.050 Duty of City to Maintain and Repair Control of Infectious Aerosols Systems and to Provide Alternative Services.
The City shall have the following obligations as of April 1, 2025:
A. Duty to conduct regular maintenance: the City shall establish a program of regular maintenance of ventilation, filtration, or air disinfection systems adopted pursuant to Section 12.12.040 to ensure that ventilation, filtration, or air disinfection requirements in its Occupied Buildings during Operating Hours under Section 12.12.040(C) remain safe and operable at all times and that any servicing needed is completed within the shortest practicable time outside of Operating Hours to the extent that such repairs and servicing may reasonably prevent the City from meeting the requirements of Section 12.12.040(C). A licensed engineer shall certify compliance with Section 12.12.040(C) on an annual basis.
B. Duty to repair malfunctions expeditiously and protect public safety: Where a ventilation, filtration, or air disinfection system in an Occupied Building malfunctions, is compromised, or in a state of disrepair, and such malfunction, compromise, or disrepair may reasonably compromise the City’s ability to meet the requirements of Section 12.12.040(C), except for emergency or City maintenance personnel or maintenance subcontractors wearing Personal Protective Equipment, the Occupied Building shall be immediately closed to all Building Occupants, any Building Occupants therein shall be immediately evacuated, and the malfunctioning system or systems shall be repaired at the earliest practicable time, except as provided by subsection C. Occupied Buildings closed or evacuated under this subsection shall be reoccupied only upon certification and attestation by the City’s engineer that all requirements of Section 12.12.040(C) are satisfied.
(1) Duty to provide alternative services pending ventilation, filtration, or air disinfection repair: If the City is unable to complete a repair of ventilation, filtration, or air disinfection within twenty-four hours of notice of its malfunction pursuant to subsection B, the City shall reasonably locate and provide alternative services for any person reasonably seeking City services because of such person’s impaired ability to access such City services due to the Occupied Building’s closure. The duty to provide alternative services shall not arise if the City is prevented from repairing the ventilation, filtration, or air disinfection system or systems within twenty-four hours or any time thereafter due to a natural disaster or an act of God other than a pandemic, epidemic, or infectious disease outbreak, provided that the building operator shall be relieved of this duty only during the period that the inability to repair is caused by such natural disaster or act of God.
(2) City Employees who work in Occupied Buildings that are closed or evacuated shall be paid at their full rate for any and all scheduled work hours during such time that Occupied Buildings are closed or evacuated.
C. Exception during certain natural disasters and acts of God: Notwithstanding subsection B, Occupied Buildings closed or evacuated in connection with ventilation, filtration, or air disinfection system malfunctions may be reoccupied by Building Occupants in order to reasonably protect the public during a natural disaster or an act of God other than a pandemic, epidemic, or infectious disease outbreak.
12.12.060 Noticing and Monitoring Requirements.
A. As of April 1, 2025, the City shall reasonably display conspicuous and legible signage at the entrance of all Occupied Buildings subject to this Chapter and open to Building Occupants attesting to compliance with Sections 12.12.040(C) and 12.12.050(A).
(1) Signage shall summarize and enumerate the specific methods employed to comply with Section 12.12.040(C). When natural or portable equivalent clean airflow systems are used, signage shall specify as applicable their filtration type, location, and quantity.
(2) Signage shall detail the normal maintenance schedule for applicable methods or equipment.
(3) Signage shall detail procedures for the public to reasonably request additional technical information about the City’s systems, equipment, and engineering certifications and design.
B. As of April 1, 2025, the City shall install conspicuous carbon dioxide monitors with non-dispersive infrared or equivalent or superior technology in each regularly occupied room of all Occupied Buildings subject to this Chapter and with signage explaining how to read and interpret results.
12.12.070 Interim Measures.
By January 1, 2025, the City shall take all feasible measures to improve ventilation, filtration, and air disinfection in Occupied Buildings, including at least the following:
A. Ensure that all windows that can open are open during Operating Hours unless there is inclement weather.
B. Purchase and install high-efficiency particulate air (HEPA) filters for areas of Occupied Buildings where windows cannot open.
12.12.080 Private Right of Action.
A. Right to Cure. This Chapter does not provide a private right of action upon any person or entity to seek injunctive relief or civil penalties against the City or any employee unless that person or entity has first provided written notice to the City Manager by serving the City Clerk by e-mail or mail, regarding the specific alleged violations of this Chapter. If the alleged violation is substantiated and subsequently cured, a notice shall be posted in a conspicuous manner on the City’s website and any applicable Occupied Buildings that describes, to the extent permissible by law, the corrective measures taken to address the violation.
B. Cause of Action. Other than with respect to Section 12.12.050(B), if a specific alleged violation is not remedied within five (5) days of the written notice specified in subsection A, a person or entity may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this Ordinance and may also seek civil penalties. With respect to Section 12.12.050(B), if a specific alleged violation is not remedied with two (2) hours of the written notice specified in subsection A, a person or entity may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce Section 12.12.050(B) and may also seek civil penalties.
C. Civil Penalties. If the City is found liable in a cause of action brought under subsection B above for a violation that is the result of arbitrary or capricious action by the City or an employee or agent thereof in their official capacity, the City shall be liable for a civil penalty as determined by the court. In determining the amount of civil penalty, the court shall consider prior violations of this ordinance by the City department that committed the violation.
D. Attorney’s Fees and Costs. A court shall award a plaintiff who prevails on a cause of action under subsection B reasonable attorney’s fees and costs.
E. Limitations on Actions. Any person bringing an action for money or damages for a violation of this ordinance must first file a claim with the City pursuant to Government Code 905 or any successor statute within four years of the alleged violation.
F. Any contracting Person or Entity knowingly or willingly supplying false information in violation of Section 13.105.030C.2 shall be guilty of a misdemeanor and up to a $1,000 fine.
12.12.090 Amendment.
The Council may, by majority vote of the entire City Council, amend this Chapter in furtherance of its purposes or to:
(1) correct ambiguities or errors in language, provided that such amendments do not cause the City to achieve, implement, and maintain standards less stringent in City Buildings than those specified in Section 12.12.040, modify the obligations under Sections 12.12.050 and 12.12.070, or modify the noticing and monitoring requirements, procedures, or penalties, as specified under Sections 12.12.060 and 12.12.080;
(2) adopt successor standards in whole or in part to ASHRAE Standard 241-2023 only insofar as and to the extent that new standards are more stringent than ASHRAE Standard 241-2023 and the applicable Minimum Equivalent Clean Airflow Per Person in the Breathing Zone in Infection Risk Management Mode as specified in Table 5-1 of ASHRAE Standard 241-2023.
12.12.100 Severability.
If any word, phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The People of the City of Berkeley hereby declare that they would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional.