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~ NEwYORKLAw1OURNAL NEW YORK, TUESDAY, SEPTEMBER la, 1991 • OUTSIDE COUNSEL By C.Jaye BerBer Legal Aspects Of Sick Building Syndrome 0 M OST OF US spend a large part of our day inside build- ings. In the case of most office buildings, we are in an enclosed structure which contains a variety of chemicals and sub- stances. some of which may be hazardous to our health. Industrial sites may be manufacturing hazardous sub- stances. At home, we may be exposed to potentially harmtul substances via the furniture we own or the location of the building. Indoor air pollution can occur as a result of the presence of statutorily defined "haurdous substances" or from the accumulation of unaccept- able levels of varfous pollutants such as gases, vapors, radon and bacteria due to inadequate fresh air ventita- tion. Such pollution can also be gener- ated by asbestos, formaldehyde foam insulation used in building materials, fiberglass duct lining; radon from granite building materials; pentachlo- rophenol from logs; polychlorinated biphenyls (PCBa) from electrical transformers; and diisocyanate insula- tion, wail fabrics and pressed wood furniture, plastcizers in rugs, paint, tobacco smoke and microbes in the ventilation system. Copy machines generate ozone. Furnishings such as earpet, drapea, chairs, and aofas may absorb taoo- ics from the indoor air that came from other somres. These pollutants aceu- mulate because buildings are de- signed with sealed windows and insulated walls so as not to allow heat to escape. Consequently, not enough fresh air may come in. Their heatfng, ventilating and air conditioning systems may be made- quate to clean out these pollutants and recycle in sufficient quantities of outdoor air. Maintenance problems may prevent the building equipment irom functioning property. Building occupants may develop eye irritation, nausea and headaches, heart problems and rancer, called sich building syndrome," which may provide a basis for litigation against building ownera, managers, contru- ton, architects, HVAC Installers, man- Caaa.ed os p.ge 2, cotsusn!

I • • OUTSIDE COUNSEL Legal Aspects of Sick Building Syndrome Continued erom page l, column 2 involved with the building can be- come a party to the lawsuit and it may ufacturers and others who have worked on the btulding. Certain substances are clearly toxic and have been acknowledged as such in federal. state- and local legislation. Others, such as tobacco smoke, are arguably so and have been regulated only at the local level in some areu. I Asbestos, in particular. is a hazardous substance which has received a tre- mendous amount of attention and will continue to In the funtre. Most sick building cases seem to settle. Qafl a Prudemia4 for example, brought last fa6 in southern CaWor- nia. was'settled one month into the trial with the dollar amount kept se- cret by a cotdidentiality agreement. making dissemination of infortnation diltiatlts The most interesting aspect of the case is the suggestion that strict Uabil. Ity law could prevail in simisar uses. The judge ruled that If the jury were to find the hesting, ventilation, and'air conditioning (HVAC) system in the building to be defective, then the de- signer and contractor of the building could be subject to liability under a strict IiabBlty theory of law. Using this approach, the ttullding would be like a sold ptoditct. Presumably anyone in the chain of people who designed, manufactured and installed the HVAC system or Its components (architects, engineers, designers, retailers, ttanu- facturers. distributors-contracton, in- staflers, and subcontractors) could conceivably be potentially liable. In this particular lawsuh, the gener- al contractor ls likely to pay the settle- occur years after the building was constructed. Indemnification clauses in contracts and insurance coverage should all be carefully reviewed be- fore starting on a new project since they can be invoked years after the work is done. Most sick building cases have their origin in HYAC problems - either bad design or maintenance. Since so many people contribute to the work done on HVAC systems and so many people are affected by it. there are many possible defendants. Buitding owners can be sued by tenants. Ten- ants can be sued by employees. Build- ing managers may be liable for maintenance problems. Designers and consultants may be liable for HVAC designs. Intenor designers conceiv- ably may be sued for Boor plans which do not take into account the combination of air supply and smok- ing areas. Lsgislation Despite all the controversy about indoor air pollution. it still remains a very unregulated area. There are no real governmental standards for con- duct However. it should be noted that certain problems may be violations of current building codes and can be handled through those agendes. The American Society of Heating. Refrigerating and Air Conditioning En- gineers (ASHRAE) has issued Stan- dard 62-1989 in which it recommends ment because he constructed the wmu~ shell and core of the office building and agreed in his contract to indemni- fy the owner, even though this oo- atrred yela after the imiiding was constritcrcd. As would be expected In such eases, everyone ia the chain couid be atted evebhWly, either di- rectiy or for todemnifieation - sub- contractors, architects, designers and engineers. The caae arae in 1985 when con- tractors were renovating the interior of an office suite The plaintiffs were two erms .ud their employees who occupied one halt of the Boor and shared the HVAC system. ABer work began, employees experienced diai- ness. nausea, nosebleeds, headerhes, disorientation and.respiratory prob- lems allegedly due to toxic fumes dritting to their side of the floor trom new carpets, turniture and paint on Despite all the controversy about fndoor air pollution, it still remains a oery unregulated area. . . . However, it should be noted that certain problems may be violations of current building codes and can be handled through those agencies. to prepare "health advisories" that I assess the health risks posed by spe- ~ cific indoor air contaminants. The act ~ includes 12 specific pollutants for which the agencies must write health advisories - benzene, biological con- taminants, carbon monoxide, environ- mental tobacco smoke, formaldehyde, lead, methylene chloride, nitrogen di- oxide, particulate matter, asbestos, polycyclic aromatic hydrooarbon and radon. The 12 advisories must be complet- ed no later than three years atter the act becomes law. The EPA can choose for health advisories any other indoor , air pollutants that could have an ad- .. verse effect on human heaith. The Act estabfishes a Council on Indoor Air Quality (CIAQ) to oversee . and coordinate federal indoor air ac- . tivities. There would also be an In- door Air Quality Information ~ Clearinghouse to distribute building technology and management practice i building technology and management . practice bulletins and other informa- ~ tion. There would be an Office of In- I, door Quality within the agency's I Office of Air and Radiation. Both the Mitchell and Kennedy bills would provide funding for research on indoor air contaminants: create a federal office of Indoor Air Qtnliry; set up a grant system for states to devel- , op IAQ programs and establish advi- sories for hazardous indoor air~ pollutants. Kennedy's bill was re- ferred to the House Science. Space and Technology Committee- as well as the Education and Labor Committee because of its proposed expansion of the Department of hbor's regulatory authority. Mitchell's bill passed the Senate last year and was referred to the Environment and Public Works Committee. The EPA would be required to issue a building ventilation standard to be enforced by OSHA. New buildings would have to comply with American Society of Heating. Refrigerating, and Air Conditioning Engineers' reyuire- ments.* In an unusual move, the State of Washington's Department of General Administration has issued design re- quirements for hs new buildings in response to sick building syndrome issites." The requirements include an air distribution system that will assure a constant volume of circulating air once the building is occupied; tem- peramre and humidity to be con- trolled by direct digital controls: and ventilation systems to operate at w 2074144150

t i the other side. The problem was alleg- edly.intenaftied-duea to leaha in the ducts in the FIVAC system. The corpo- raNons aiteged••buamess interruption losses and lack of productivity. One solution might have been to ptunP fresh air in to flush out the can- taminants, but the building's outside damPers were not big enough to cir- cutate 100 percent fresh air. The HVAC system was capped so that only 10 percent Outside air could be brought in. As with many such rases. the prob- lems may have been caused by a mm- bination of elements: tight construction of the building shell.• in- adequate HVAC system: untrained building managers; extensive interior renovations by tenants; and the use of synthetic materia4 and furnishings containing volatile organic com- pounds such as formaldehyde, mlu- ene and methyl ethyl ketone. This is the type of ease we will see more of in the near future. lo Perklnt a. Maromic Operating Company,nine women filed suit against a building landlord and the management company that main- tained the strtttAm's heating and ventilation dttcts, when they became asthmatic shortly after the'v jobs re- quired them to move Into a new build- btg in downtown Washington. D.C.' The plaintiffs claimed that their iR- ness resulted • from an unspecified bacteria or mold that contaminated the air they breathed. The we was settled. In a suit against Burlington lndus- tries, a jury found in favor of 9arBng- ton, a carpet manufacturer, when a Cincinnati couple sued claimiug ill- neu bom fumes ernitted from a new carpet in their o(tka4 Chemicals Misappii.d Illness and litigation can also result from hazardous chemicals which are misapplied. In Houston. Teras, a jury awarded $10.5 million to residents of several apartment complexes over ex- posure to allegedly misapplied chlor dane.s The pWmiBs were a test we stJeOed to repnxnt a total of 311 Plabiliths-.. The owners and manager of the apartment campksrs terminated or limited the services of a licensed pest control operator In April 1985 and in- stead used three maintenance men employed by the manager of the com- plex to apply termiticides. They sprayed chlordane above ground, using sprayers, rather than by trench- ing, drilling or sub-slab injection. There was no notice to tenants. It was sprayed on the buildings themselves and on common areas and near open windows and air conditioning vents. Compensatory and Pmitive damages were awarded. This case and others like it, usually rely on negligence theories. In a sick buildin nxs. everyone that HVAC systems be designed to de- liver at least 15 cubic feet per minute per person (cfm/p) of outdoor air in mechanically ventilated buildings. The standard applies to hotel lobbies and certain retail shops. Higher mini- mum rates are recommended for most buildings, such as 20 cfm/p for office buildings. This standard is not a legal requirement. however, should it be adopted by national model and local building cades, it would be. However. It is widely adhered to at the present time. In 1988 the U.S. Senate's Committee on Environmental and Public Works recommended to the full Senate the passage of Senate Bill 1629. known as the "Indoor Air Quality Act of 190g." The bill was not enacted in 1988, bbut was reintroduced in substantially identical form in March•19g9 as Sen- ate Bi11657,10 I st Cong., 1st Sess.,175 Cong. Rec. i30g1 (1989) and again in subsequent yeara and is now known as the "Indoor Air Quality Act of 1991 " There are currently two pro- posed indoor air quality bills with the same title. One bill was introduced by Rep. Jo- seph P. Kennedy (D. Mass.)' It pro- poses that sny public or commercial building which receives a permit for construction or for significant renova- tion must have an HVAC system de- signed to provide a minimum of 20 cubic feet per minute of outdoor air per occupant to all occupied space and a minimum of 60 cubic feet per minute of outdoor air per smoking oc- tatpant where smoking Is pertnitted. Exhaust air from a room where smok- . Ing is permitted shall not be returned to the general ventilation syatem.r OSHA would have the power to fine and imprison offenders. In its current proposed form it provfdes for re- search. model building management practices, training and programs and sets ventilation standards for new public or commercial buildings. It is nonregulatory. The bill also clarifies that any IAQ research, standards, regulations, or enforcement carried out by the EPA that would affect worker safety and health must be done in consultation with officials of OSHA. It would autho- rize funds for indoor air quality re- search, grams to the states and a program to asseas problem buildings. A simitar bill in the Senate, intro- duced by Senate Majority Leader George Mitchell (D-Maine),s does not create any new authorities to regulate indoor air pollution. It directs EPA to develop a"national response plan" to direct existing authorities to "identity contaminants of concern and specify actions to reduce esposures. EPA in coordination with other federal agen- cies would make recommendations concerning the establishment of ven- tilation standards to protect public and worker health. Senator MRchell's bill requires EPA capulty dttring-iee 90 day "nush.ari ~ period" and for an additiona/ 90 days ~ after employees move in. There are also requirements for testing of furni- mre and carpets for contaminattts. Washington state has specified the following emission limits tor fumimre ' ordered for new buildings: (a) Formaldehyde emissions may not exceed 0.05 parts per million part of air, (b) Total VOC emissions may not e:ceed 0.5 micrograms per cubic me- ter of air, (c) 4-phenylcyclohesene emissions may not exceed I part per billion parts of air (4-PC is a chemical by- product in carpet adhesive); (d) Pollutants not specifically men- tioned may not produce emission lev- els greater than one-tenth of the threshold limit values recognized for industrial wottplaees; (e) Total partindates may not ex- ceed 50 micrograms per cubic meter of air, and (p Manufacmrers must Identtfy any toxins, mutagens, or carcinogens that are off-gassed from their products. Conclusion This is a rapldly gtvwing area of the 4w. tt is fraught with tremendous po- tenttal for liability siace strict liability standards may be used and everyone in the chain of people involved with the building may be included in a law- suit Everyone in this chain should have legal counsel on the potential risks so that they can adequately plan in their contracts to minimize liability or seek indemniBution from others in -the chain. Those affected by the air quality in buildings should be aware of the law in this area so that they too can be protected. .s.---.-.. (1) t.kKMner's. PuWir fta.Hn taw. M 1] 99-n a .eq. (t) Caa a A+tlaapi (NO. SWC 909 13. hld, SePr+ Ct. aenkd 10/ tSNe). (3) hntwU a Malomic GMr{y Conwmry. No. ussOD7s7. (4) ar6e a ea/rypn LYUps, No. A s 101 mr. Ha.wen ca.. oltlo, (5) ibar a Wnqra6 Nn ar-2a3 4 5-B. Teru o{u. a Harw lTry. (6) H.R 1666. 102d Coaare., 1a lerfon (1991). (7) tpa N..paeim Itaae .ed wrtWqmn have ispab ooaMna modwN tnr raee d- nce dYWiep uny. See Are•er Aaimanev e. core. No.. Ix I95o. µ a. (6)3.461. (9) AN9RAL 9and.nl 6l-19D ir a raaa6ary YandaW wr MdYten., amgoetr., and building Gwners anC aperaton nnlar pre¢nEe. 0Ni- n.mr rentWnan nua Inr raps .aWq., wch u oHkea aaea meeU~ rvam..od ana ryper a ea.s. (10) "ladoor Aft Qullly Sped6olbu For w.drenen 91are Naenaf ° - BNWinr aad taCnr a IMwMp tailUNa:' w.MmpM state Uepe ol GenerY AdatMMOanoo. Fyt Cam- nus tTn Nqr.a. oe- tM9. O. .laqn 1111.61..rr, of C. Jaye Ber- Lam ONioes in New York City sp isa in building convmction, real a and enaronmental law. .