New liabilities in built environment.

New liabilities in built environment

Indoor Environment

Building owners are facing new areas of legal liability due to the presence of toxic substances within their structures. No longer is the problem of air pollution confined to the outdoors; building furnishings, equipment and poorly designed and operated ventilation systems pose new challenges (and lawsuits) for owners and managers.

The existence of indoor toxic substances and defective ventilating systems has given rise to the phenomenon of the "sick building syndrome". Increasing numbers of office workers are contracting respiratory and skin diseases, and suffering from fatigue, headaches and stress, all resulting from the presence, at unacceptable levels in the air inside buildings, of gasses, vapors, pollen, spores, radon, bacteria, fungi, molds and harmful chemicals. Additionally, office workers have begun filing lawsuits, claiming they became ill by indoor pollution from such things as asbestos, formaldehyde (used in office furniture and building materials), plasticizers (used in rugs and furniture), paint, wall and ceiling materials, cleaning agents, fiberglass, tobacco smoke, adhesives, caulking, insecticides, and microbes breeding in ventilation systems. Not long ago, a settlement in excess of $600,000 was reached in California with an employee who claimed that he was overcome from the effects of carpet glue and inadequate ventilation in his office, resulting in severe physical injuries.

Indoor pollution has become a particularly modern danger because building contaminants, previously flushed out of the structure through air leakage, are no longer being adequately ventilated in new buildings, which are designed to be "tight" and energy efficient. Additional insulation has been added in buildings to cut heat loss, windows have been caulked and sealed, and designed to prevent opening.

Complicating the fact that there exist hundreds of indoor pollution claims is that there is virtually no federal, state or local legislation establishing guidelines against which parties can measure their conduct. While at first blush the absence of legislation establishing standards on indoor air quality seems like a relief for those groups who are likely targets of indoor pollution claims, actually the reverse is true. Without statutory guidelines, obligations in this area are determined on and ad hoc basis by judges or juries.

Protection against such claims is, however, relatively inexpensive. Most indoor air quality problems can be alleviated by focusing on one or more of three basic areas: ventilation effectiveness, filtering, and contaminated HVAC systems. A simple environmental audit and the establishment of a monitoring system may be all that is required. Consideration should also be given to increasing the in-take of outdoor air.

Indeed, it is just this latter approach that is being offered as a cure of the sick building syndrome. Recently, the American Society of Heating, Refrigerating and Air-Conditioning Engineers ("ASHRAE"), through the issuance of new Standard 62-1989 has recommended that HVAC systems be designed to deliver at least 15 cubic feet per minute per person (cfm/p) of outdoor air in mechanically ventilated buildings. This represents an increase from the previous five cfm/p minimum ventilation rate required. The Standard also requires that outdoor air be filtered to meet at least EPA's outdoor air standards.

Standard 62-1989 revises Standard 62-1981, which in turn revised an earlier Standard 62 issued in 1973. The 1973 Standard had lowered the minimum ventilation rate to five cfm/p. At that time, the cost of heating and cooling outdoor make-up air offered an incentive to lower ventilation requirements. The new 15 cfm/p requirement is the lowest minimum that Standard 62-1989 sets for commercial areas; it is applicable to, for example, hotel lobbies and some retail shops. Higher minimum rates are recommended for most places. For office buildings, Standard 62-1989 requires a minimum ventilation rate of 20 cfm/p. Standard 62 is not a legal requirement: to be enforced it must be incorporated into national model and local building codes, collective bargaining contracts, building management policies or statutes. Moreover, the standard is intended as a design standard to upgrade the amount of outdoor air, rather than an operational standard. Only if existing systems have the capacity to allow more air to enter the building will the standard be met. It is expected that Standard 62 will be adopted in model building codes by municipalities.

Other steps can be taken by building owners to keep their buildings healthy. Ventilating systems should be examined to determine operation levels and to identify possible sources of air contamination from such sources as dirt and standing water. A number of consulting firms are offering complete diagnostic programs using state of the art monitoring and detection devices. The cost of such programs is relatively low.

In connection with new buildings, owners should arrange for their designers to require suppliers of building materials to provide information on pollution loadings (emission rates) of materials that cover large indoor areas, such as carpets. Architects should also be asked to give more direction to the mechanical engineers of design systems so that there is easy access for testing and balancing. It may also be helpful for an environmental consultant to be retained to determine the total effectiveness of the system. When the building is ready for operation, managers and operators should be properly trained in the maintenance of the HVAC system. Recent studies have shown that, in the vast majority of buildings, HVAC systems have not been properly maintained.

Following these simple steps, together with acknowledging the new ASHRAE standard, owners may see healthier buildings and a lessening of the likelihood of legal claims arising from indoor pollution.

Kenneth Block's primary area of practice is real estate and litigation with a specialization in environmental law.