Industry examines sick building syndrome.

Industry examines sick building syndrome 

Heightened attention is being focused on "sick buildings" and their potential for legal liability and litigation in the courts. The Indoor Air Quality Act of 1991 has received active consideration in Congress. And, in California, commercial tenants of a newly constructed office building settled a "sick building syndrome" case for an undisclosed, but believed to be large, sum of money. Because of this new attention, building owners should be considering simple, cost-effective defense measures.

A building is termed "sick" when at least 20 percent of the occupants suffer from certain characteristic symptoms for periods exceeding two weeks and are relieved of those symptoms while away from the building. These include: eye and nasal irritation, throat and lower respiratory inflammations, headaches, fatigue, nausea, general malaise and skin rash.

Sick building syndrome manifests itself in modern, energy-efficient buildings that are dependent upon the heating, ventilation and air conditioning (HVAC) system for a continuing supply of clean air. These buildings also rely on the HVAC system to remove such contaminants as tobacco smoke, toxic chemicals found in building materials, carpets, paint, furnishings, cleaning solvents and chemicals for maintenance of high-tech office equipment.

A faulty or improperly designed HVAC system will, in most cases, fail to remove these contaminants and may even recirculate them to other areas of the building. Furthermore, since HVAC coils, ducts and other elements may serve as a breeding ground for biological contaminants or allergens, failure to inspect and service the system can result in building sickness.

Standards Through Litigation

Possible approaches to regulating indoor air quality include air ventilation standards, rules limiting exposure of workers or occupants to certain specified levels of chemicals or toxic substances on a pollutant-by-pollutant basis, rules requiring warnings of the presence of chemicals or combinations of all three.

Currently, state and local building codes are the primary sources of legislated standards. For example, the State of New York requires ventilation in new buildings to meet generally accepted standards but does not specify the standards. In contrast, ASHRAE Standard 62-1989 recommends that HVAC systems be designed to deliver at least 15 cubic feet of outdoor air per-minute per person. Prior to the surge in energy costs during the early 1970's, most HVAC systems were designed to operate at this level but, in an effort to save energy costs, the amount was lowered -- in some cases as low as 5 cubic feet per-minute per occupant.

In January of this year, indoor air quality legislation was introduced in the United States House of Representatives. The bill, the Indoor Air Quality Act of 1991, proposed that ASHRAE Standard 62-1989 be codified as a federal regulatory standard. In addition, amendments that require OSHA to develop a national standard under its existing authority to regulate the health and safety of the work-place have also been introduced. Congressional debate is continuing.

Standards Through Litigation: The Call Case

The absence of federal and state ventilation standards does not mean an absence of liability. As a California case illustrates, when sick building syndrome is detected, tenants may sue landlords, building managers, builders and architects on traditional common law concepts of negligence, strict liability, fraud and warranty.

In this case, Call vs. Prudential, a corporate tenant, and other employees in a newly constructed 24-story office building went to court after experiencing symptoms ranging from nosebleeds to respiratory problems as a result of exposure to toxic particles in building materials. The plaintiffs named the building owner, management company, architect, general contractor and a subcontractor claiming negligence, strict liability and other theories of recovery.

After expert testimony showed the building's ventilation did not meet the accepted industry standard, the case was settled for a significant sum of money.

Preventive Measures

In view of these developments, building owners and managers should take the following practical steps to avoid unacceptable levels of indoor pollution and costly legal liability.

1. Building Design and Construction: Prevention of indoor air pollution begins at the design phase; however, an owner must not assume that an architect or mechanical engineer will take responsibility for indoor air quality. The owner should ask the architect to do the following:

a. Direct the mechanical engineer to design the HVAC system with easy access for complete maintenance, testing and correction.

b. Require the engineer to supply clear and complete operating and maintenance manuals for the HVAC system.

c. Specify that the HVAC system be designed to provide ventilation at, or in excess of, applicable standards.

d. Require suppliers of building materials to provide information on the pollution loadings (emission rates of toxic substances) of all materials.

e. Specify the testing of air quality before and after occupancy.

An IAQ consultant, hired by the owner to work with the architect may offer additional suggestions.

2. Existing Buildings: Common sense suggests three steps as basic, essential care for existing buildings.

a. An environmental consultant should be hired to perform an indoor air quality audit. Prior to such an audit, the building manager should conduct an investigation of his or her own, looking for potential sources of contamination and areas where air circulation is poor.

b. A rigorous maintenance program for the HVAC system should be implemented to detect and avoid problems.

c. A system to receive and process complaints can also help detect and remedy problems before injury and loss of productivity occur.

Conclusion

Recent increased Congressional attention to indoor air quality may well raise public awareness of the hazards of working or living in a "sick building." The California commercial tenants' recent success in court suggests that potential liabilities for injury and loss of productivity can be high. In comparison, preventive measures, including analysis by an IAQ consultant, a rigorous maintenance program for the HVAC system and a system to respond to occupants' complaints are relatively simple defensive measures.