Beware: OSHA attempts to cure sick building syndrome.

The regular readers of Real Estate Weekly will note that there have been a number of recent articles concerning the move in Washington, D.C. by the U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) to establish national standards for indoor air quality (IAQ). Rather than repeat any portions of those recent articles which have reported testimony given or the real estate industry's position on the issue, this article will be directed to a nuts and bolts review of the regulations as originally proposed by OSHA in April 1994.

In this writer's opinion, if Washington is successful in involving itself through OSHA with the administration of ventilation standards for our New York City buildings, it will be a sorry day for everyone, including the landlord, the tenant and the taxpayer. This new venture for OSHA could prove to be a monumental bureaucratic boondoggle that will surely increase the cost of construction without real benefits to the consumer.

The proposed regulations are intended to address "indoor air quality in indoor work environments" and also attempt to control "environmental tobacco smoke" (ETS). The impetus for the regulations is what has been commonly referred to as the "sick building syndrome." Indeed, OSHA's findings are that there are adverse health hazards associated with poor IAQ including an assortment of ailments such as "sensory irritation, respiratory allergies, asthma, humidify fever, hypersensitivity pneumonitis, and Legionnaires' Disease" to name just a few.

The proposed regulations are of particular interest because they are directed at landlords and tenants alike. Specifically, an "employer" is defined under the regulation to include building owners and lessees "who control ventilation or maintenance of premises where employees of other employers work." In instances where there are multiple employers/lessees within a single building, the regulations contemplate a sharing of responsibility. OSHA specifically states in its comments on the proposed regulations that "where there is a multi-employer work site, [it is contemplated] that the affected employers will divide up the responsibilities in the manner in which they make the most sense."

The proposed regulation, however, is not clear as to whether the building owner in such a multi-employer situation will have overall responsibility to comply irrespective of what efforts are undertaken by the tenants collectively.

There are many other interesting facets concerning application of the proposed regulations. They state that the IAQ compliance requirements will apply to all "non-industrial work environments" which are defined as any "indoor or enclosed work space such as, but not limited to, offices, education facilities, commercial establishments and health care facilities and office areas, cafeterias, and break rooms located in manufacturing or production facilities."

For the portion of the regulations governing ETS, the regulations will apply to all work environments.

The question of which mechanical systems are affected is also broadly defined to include all building systems, defined as including, but not limited to, "the heating, ventilation and air-conditioning (HVAC) system, the potable water systems, the energy management system and all other systems in a facility which may impact indoor air quality."

It should also be noted that OSHA contemplates that the regulations will apply to all renovations and remodeling activities, which are defined to include "removal or replacement of walls, ceilings, floors, carpet and components such as moldings, cabinets, doors and windows; painting, decorating, demolition, surface refinishing and removal or cleaning of ventilation ducts."

There are five major components under the proposed regulations. First is the obligation of the employer to establish a written IAQ compliance program. The program must designate a person responsible for assuring compliance, provide a description of the building systems, and include a maintenance program.

The quantitative standards which the compliance program must achieve are not well-defined at this time. Two presently proposed standards are (1) maintaining relative humidity below 60 percent and (2) carbon dioxide levels below 800 parts per million (PPM). It should also be noted that at this juncture there is no "state-of-the-art" requirement proposed. Specifically, the regulation only requires that the HVAC system operate "up to original design specifications and continues to provide at least the minimum outside air ventilation rate required by the building code... applicable at the time the facility was constructed, renovated or remodeled, whichever is more recent."

The second major component of the proposed regulations relates to the ETS problem. In workplaces where smoking is not prohibited, the employer must establish a designated smoking area which must be enclosed and exhausted directly to the outside air.

A third major component is regulation of air quality during renovation and remodeling. The proposed regulation requires the building owner to sit with the contractor and develop a "work plan" designed to minimize air contaminates. The employer must also give prior notification to all employees in the building and the notification must articulate anticipated adverse impacts on indoor air quality.

The fourth major component of the regulations is a requirement to control specific contaminate sources including environmental tobacco smoke and other indoor air contaminates, such as "microbial contamination" that can occur from water leaks. This will be accomplished through mandating routine inspections or additional ventilation equipment referred to as "engineering controls."

The last major component of the regulations is employee training and record keeping. The training is directed at those maintenance workers who will be responsible for IAQ compliance.

The record-keeping requirement is for the compliance program, maintenance records and employee complaints. The records are proposed to be maintained for three years.

Surprisingly, the original proposed regulations do not include any specific schedule of fines or penalties for failing to comply with the regulations. There is also no provision as to how OSHA will enforce the rules. We were told by OSHA's Office of Health Compliance that specific compliance instructions for IAQ inspections will be established once the rules are published in their final form.

As noted above, the regulations are far from final at this juncture. The hearings on the rules, which were originally scheduled for July 1994, did not commence until December 1994. They are presently scheduled to continue through March 1995. Additional comments and modifications will follow. Of course, once the regulations are final, we will provide you with an update.