• Indoor Air Quality Claims: Defining the Practical and Legal Issues
  • May 1, 2003 | Author: Wm. Cary Wright
  • Law Firm: Carlton Fields, P.A. - Tampa Office
  • After more than a decade of litigation arising from civil claims based on exposure to airborne toxins, there is now widespread recognition that contamination of indoor air quality (IAQ) is a significant threat to public health. In recent years, comparative risk studies performed by the Environmental Protection Agency (EPA) and its Science Advisory Board have consistently ranked indoor air pollution levels among the top five environmental risks to public health due to the construction of more tightly sealed buildings, reduced ventilation rates to save energy, the use of synthetic building materials and furnishings, and the use of chemically formulated personal care products, pesticides, and household cleaners.

    The Occupational Safety and Health Administration (OSHA) estimates that 30 percent of the nation's 4.5 million existing commercial buildings have IAQ problems of varying degrees. 59 Fed. Reg. 15,968, 16,004¿05 (Apr. 5, 1994). In April 1994, OSHA published a proposed rule to address IAQ and described it as a sweeping proposal that would regulate indoor air quality in nonindustrial work environments, including schools, training centers, offices, commercial establishments, health care facilities, cafeterias and factory break rooms. The rule would affect roughly 70 million employees who work indoors, an estimated 21 million of whom are exposed to poor indoor air quality. 59 Fed. Reg. 16,006. OSHA estimated the cost of compliance with the rule's IAQ aspects alone (as distinguished from the Environmental Tobacco Smoke (ETS) control requirements) at $8.1 billion. Id. at 16,002. The proposal evoked the largest public response in OSHAs history, with more than 100,000 comments received and testimony from more than four hundred witnesses. Indicative of the issue's complexity and the degree of public and industry concern is the fact that, although the comment period on the proposed rule ended in January 1996, OSHA still has not set a target date for promulgating a final rule. This article provides a brief overview of IAQ issues, including IAQ regulatory programs, and focuses in particular on common law liability arising from IAQ problems.

    There are three primary sources of IAQ¿related problems¿microbial contamination, volatile organic compounds (VOCs), and particulate contamination. Microbial contamination refers to indoor air pollutants that naturally occur as a result of bacterial and fungal growth. It is often associated with excessive moisture within the building envelope. Typically, this problem is the result of improper drying during the construction process, faulty roof or curtain wall construction, improper design, or a lack of proper cleaning and maintenance of heating, ventilation and air conditioning (HVAC) systems. Man¿made VOCs are another major source of IAQ problems. VOCs include often invisible and sometimes odorless fumes associated with almost any synthetic product, such as paints, coatings, plastics, and cleaning chemicals. Particulate contamination typically refers to microscopic fibers from man¿made materials such as insulation, acoustical ceiling tiles and other building components. The contaminants range from asbestos and fiberglass to nuisance dust.

    Indoor air contaminants can cause or contribute to a variety of health effects. The effects are often referred to individually or collectively as Sick Building Syndrome (SBS) and Building Related Illness (BRI). In its proposed rule, OSHA regards SBS and BRI as two distinct phenomena. OSHA essentially views IAQ¿related health effects on a continuum, ranging from the less serious, subtle, and difficult¿to¿document conditions to more serious conditions that have been clinically diagnosed and specifically attributed to poor IAQ. OSHA includes in the SBS category the more general complaints such as headaches, fatigue, congestion and blurred vision and includes in the BRI category more serious conditions such as asthma, bronchitis and Legionnaires' disease. 59 Fed. Reg. 15,970. BRI could also include conditions such as asbestosis and cancer resulting from asbestos contamination or radon exposure.

    The law in this area is evolving with science. The legal issues associated with IAQ arise in two broad categories: regulatory liability and common law liability. On the regulatory side, while recent risk studies consistently rank indoor air quality as a top environmental risk to public health, indoor air pollution is generally subject to minimal and inconsistent regulatory control. Currently, there is no comprehensive federal statute or program that regulates indoor air quality and no single federal agency with oversight authority on the issue. Instead, there are more than twenty federal agencies with some indoor air quality oversight stemming either from specific statutory responsibilities or more general authority over regulated entities. Usually a substance is identified as responsible for a specific health problem and a program is developed to deal with it, leading to a variety of federal laws administered by various federal agencies all attempting to regulate some aspect of indoor air pollution. A similar pattern of ad hoc programs has developed at the state and local level.

    Federal agencies have attempted some level of coordination on the issue through a variety of mechanisms, including the Interagency Committee on Indoor Air Quality (ICIAQ), which is co¿chaired by EPA, OSHA, the National Institute for Occupational Safety and Health, the Department of Energy, and the Consumer Product Safety Commission. Of the five, OSHA and EPA are the two federal agencies at the forefront of the indoor air quality issue; OSHA, by virtue of the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651¿678 (1994), and EPA through a panoply of federal legislation, including the Toxic Substances Control Act (TSCA),15 U.S.C. §§ 2601¿2692 (1994); the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136¿136y (1994); the Clean Air Act (CAA), 42 U.S.C. §§ 9601¿9675 (1994); and the Safe Drinking Water Act, 42 U.S.C. §§ 300f¿300j ¿ 26 (1994).

    EPA's primary source of IAQ authority is derived from TSCA, which grants EPA broad power to regulate the manufacture, processing, distribution, use or disposal of toxic chemicals, which are not regulated under other statutes. 15 U.S.C. § 2605.While TSCA creates potentially broad, regulatory coverage of certain substances, such as asbestos and polychlorinated biphenyls (PCBs), the statute's potentially sweeping authority is limited by the "unreasonable risk" test which is the legislatively imposed prerequisite for regulation. The statute provides that EPA may regulate a chemical substance or mixture that "presents or will present an unreasonable risk of injury to health or the environment" but only to the "extent necessary to protect adequately against such risk using the least burdensome requirements." 15 U.S.C. § 2605(A). To date, EPA has regulated very few substances under this program. TSCA's remaining provisions address more specific issues, including control and abatement of asbestos¿containing materials in schools, control and abatement of radon, and lead exposure.

    Violations of TSCA can trigger civil or criminal penalties. 15 U.S.C. § 2615.While citizen suits can be brought to address ongoing violations, Moreco Energy, Inc v. Penherthy-Houdaallle, 682 E Supp. 931 (N.D. Ill. 1987),TSCA provides no private right of action for money damages. See Welche v. Schneider Nat. Bulk Carriers, 676 E Supp. 571, 578 (D. NJ. 1987) (no implied private right of action exists under TSCA by which a plaintiff can seek redress for personal injuries).

    For its part, OSHA looks primarily to specific occupational health standards and the OSH Act's "general duty" clause for its IAQ authority. The general duty clause gives OSHA the authority to ensure a place of employment "free from recognized hazards that are likely to cause death or serious physical harm" to employees. 29 U.S.C. § 654(a). OSHA also has authority to adopt specific health and safety standards, including "national consensus standards" that have been issued by other nationally recognized standards¿producing organizations. 29 U.S.C. § 655.

    To date, OSHA has adopted numerous national consensus standards, including the American National Standards Institute (ANSI)/American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE) Standard 62¿1989 dealing with ventilation of commercial, institutional, and residential buildings. OSHA has also established its own health and safety standards for nearly thirty substances. OSHA's authority to establish its own standards has been effectively limited, however, by judicial interpretations of the statutory prerequisites to that authority. See Arnold W Reitze, Jr. & Sheryl¿Lynn Carof, The Legal Control of Indoor Air Pollution, 25 B.C. Envtl. Aff. L. Rev. 247, 260 (1998) (discussing the effect of Industrial Union Dep't, AFL¿CIO v. American Petroleum Inst., 448 U. S. 607 (1980), on OSHA's ability to establish new standards). Like TSCA, the OSH Act authorizes the government to seek civil and criminal penalties for violations of the Act, but it does not provide a private cause of action for damages. 29 U.S.C. § 666.

    Where OSHA and EPA have not "occupied the field," there may be significant state and local requirements regarding IAQ. Failure to comply with any of these state and local minimum standards as they pertain to permitting, construction and remediation can result in government¿imposed civil or criminal liability, fines, forfeitures and jail sentences. However, as evidenced by OSHA's failure to finalize the proposed indoor air quality rule described above, OSHA and EPA have received little support from either the public or Congress in creating a comprehensive approach to indoor air pollution. Instead, there is an ad hoc approach to indoor air pollution control that relies on a variety of legal tools, including the common law remedies discussed in detail below.

    In the absence of a comprehensive program to address IAQ problems, private parties seeking relief have had to rely more heavily on common law remedies. Remedies available to IAQ claimants vary depending upon the relationship of the parties and the nature of the damages claimed (i.e., personal injury or property damage). Claims frequently arise from the duty to abate an IAQ problem once it is identified and can be brought against the building owner or occupant, product manufacturers, contractors and subcontractors and design professionals.

    Liability of Building

    Owners and Occupants

    It is well accepted that an owner or occupant of a building, who directly or impliedly invites others to enter for some interest or advantage to the owner or occupant owes to such persons a duty to use reasonable care to have the premises in a reasonably safe condition. Subject to the immunities afforded by applicable worker's compensation laws, courts have applied this principle to employer/employee relationships. See, e.g., 62 Am. Jur. 2d Premises Liability §§ 396¿411 (1995); D.E. Evins, Annotation, Liability of Owner or Operator of Self-Service Laundry for Personal Injury or Damages to Patron or Frequenter of Premises from Defect in Premises or Appliance, 23 A.L.R.3d 1246 (1999).

    An early example of premises liability as the conceptual basis for SBS and BRI claims can be found in the well¿publicized suits filed by nineteen current or former EPA employees against the owner¿operator of the Waterside Mall office building in downtown Washington. That building has housed EPA's headquarters since the early 1970s. The plaintiffs sought in excess of $10 million in damages, alleging that they suffered "permanent brain damage" as a result of exposure to various airborne toxins in connection with building renovations performed between 1986 and 1989. Indoor Pollution News, Apr. 4, 1994, at 51. The plaintiffs claimed that they were thereby "sensitized to a large number of common chemicals, such that they became ill when exposed to even low doses of those chemicals" in everyday living, including such things as "gasoline fumes, perfumes, shoe polishes, dry cleaned clothing, cigarette smoke, copy machines, newsprint, etc." Id.

    Five of these nineteen cases went to trial and, in 1993, resulted in a jury verdict in favor of the plaintiffs that totaled just under $1 million. Id. Although the cases did not attract much media attention, they were pivotal because all previous IAQ cases involved known, specific hazards, such as asbestos, formaldehyde or pesticides. In those cases, the plaintiffs successfully showed direct damage to building occupants' health from exposure to those agents. Although there reportedly have been substantial settlements in true SBS and BRI cases in the past, this was the first case where a general, "multifactorial" causal theory resulted in a substantial jury award. See Indoor Air Bulletin, Vol. 3, No. 2, at 11. However, in 1995 after further litigation, the D.C. Superior Court threw out the nearly $1 million jury verdict and granted judgment not withstanding the verdict in favor of the building owners on the grounds that four of the plaintiffs did not have serious and verifiable injuries. The court further decided that the defendants had to pay only one plaintiff who proved physical injury caused by Waterside Mall IAQ problems. The five plaintiffs have since appealed to the D.C. Court of Appeals. Oral argument occurred in fall 1999 and a decision is expected within the year.

    Despite the turnaround in the Waterside Mall cases, several recent cases addressing owner/occupant duty under premises liability have followed the initial Waterside Mall trend toward finding tort liability for both owners and occupants of buildings and making summary judgment less likely. Recent decisions extend the common law duty to abate unreasonable risk of injury to include IAQ problems. For example, in Mackey v. TKCC, Inc, 894 R2d 1200 (Or. Ct. App. 1995), the employee of an office building tenant brought a personal injury action against the contractor and landlord, claiming injuries resulting from unsafe levels of VOCs used in the building's construction and decoration. Specifically, the complaint alleged that, in the exercise of reasonable care, the contractor and landlord should have known their construction and decoration of the building created an unreasonable risk of injury because persons who construct and lease commercial buildings normally know that: (1) indoor air pollution and sick buildings are health hazards; (2) materials used in the construction, decoration, and preparation of new buildings contain potentially harmful VOCs; and (3) new buildings should be baked out or cured and adequately ventilated before occupancy to reduce the concentrations of VOCs to safe levels.

    The appeals court found that a landlord could be liable in certain circumstances for the failure to remedy dangerous conditions that the landlord should know about, as well as those the landlord actually knows about. Therefore, the court held that this allegation was sufficient to allow the fact finder to conclude that the landlord should have known of the risk, and it reversed summary judgment for the defendant landlord. Mackey, 894 R2d at 1204.

    A Texas court in Pettie v. SCI Corp., 893 S.W 2d 746 (Tex. App. 1995), denied summary judgment for the defendant owner although plaintiffs had suffered from SBS prior to defendant's acquisition of the building. Plaintiffs alleged that the defendant¿owner had failed to utilize and maintain a proper ventilation system and failed to warn plaintiffs of the dangerous conditions of the ventilation system. The court refused to allow summary judgment against the plaintiffs although they had been diagnosed with SBS seven months before the defendant acquired the building. The court reasoned that there was a genuine issue of material fact as to whether plaintiffs suffered "any injury" after the defendant acquired the building; therefore, the court did not dismiss the claim. Pettie, 893 S.W 2d at 749.

    Although most IAQ cases arise under tort theories of negligence, claims can arise under intentional tort theories as well. For example, in Peaspanen v. Bd. of Educ., 669 N.E. 2d 284 (Ohio Ct. App. 1995), the plaintiff was an employee in a school that was undergoing renovations. During the renovations the school sealed the windows to the employee's office and closed off a vent. Shelves were then installed and coated with a urethane floor coating. See id. at 285. The label on the urethane coating displayed a warning disclosing potential dangers resulting from the inhalation of the fumes, including central nervous system depression and permanent brain and nervous system damage. See id. at 286. The plaintiff developed respiratory problems within a few days of exposure to the coating. The plaintiff consulted a doctor, and he diagnosed her as suffering from SBS. In his opinion, her symptoms resulted from fumes from the carpet and varnished shelves and the lack of ventilation. See id. Consequently, the plaintiff requested the installation of an air filtration system or a transfer to another facility The school district, however, declined both requests. See id. at 285. The district eventually decided to install an air filtration system, but the insulation contained a material to which the plaintiff had an extreme chemical sensitivity. The plaintiff requested that the school board not use this insulation, but it again ignored her requests. See id. at 286. After installation of the insulation, the plaintiff had a severe reaction which required her to go on leave. See id.

    The court held that there was sufficient evidence to allow the claim to go to the jury as an intentional tort. See id. at 288. By ignoring the doctor's warnings and the plaintiff's numerous requests, which were provided in a timely fashion, the court ruled that:

    [A]s the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result.

    Peaspanen, 669 N.E.2d at 627.

    The implications of this ruling are significant. If an employee is allowed to show an intentional tort committed by the employer, then the ruling could remove the employer from the protection of workers' compensation laws and allow a plaintiff to seek punitive damages. Moreover, the ruling could easily be extended to the contractor or subcontractor who is aware of a risk of harm to a building occupant and fails to address the risk.

    Thus, in indoor pollution cases, the building owner's or occupant's duty may require nothing less than abatement. Merely warning of a latent hazard of this type may not be sufficient because the hazard cannot be reasonably avoided. Building owners and occupants who abate hazardous conditions have successfully sought indemnification from the entity that created the unreasonable risk of harm, including product manufacturers, contractors, and subcontractors.

    Manufacturer Liability

    In the vast majority of cases involving asbestos and other toxic substances, the manufacturer is the primary defendant. Plaintiffs tend to focus on manufacturers to take advantage of the strict products liability cause of action and because they are perceived as "deep pockets."

    It is well established that injury from exposure to a product containing asbestos falls within the ambit of common law negligence and strict liability. Baione v. Owens¿Illinois, Inc., 599 So. 2d 1377 (Fla. Dist. Ct. App. ¿, 1992); Adkins v. GAF Corp., 923 E2d 1225 (6th Cir. 1991). Implicit in these holdings is that asbestos creates an unreasonable risk of harm. Thus, a manufacturer of asbestos products, or any toxic substance, has a duty to abate the known unreasonable risk of danger created by the manufacturer. In the event a building owner or occupant elects to abate a known risk, precedent suggests that the owner/occupant can recover in tort from the product manufacturer.

    In Shooshanian v. Wagner, 672 P2d 455 (Alaska 1983), for example, the plaintiffs brought an action based on breach of implied warranty and strict products liability against the installer and manufacturer of formaldehyde insulation in the structure, which contained the plaintiffs' business and residence. The plaintiffs alleged that the insulation incorporated into the property was dangerously defective because it emitted toxic fumes that had caused physical harm to the occupants and would continue to pose a health threat. Shooshanian, 672 P2d at 463. Alleviation of the risk required tearing out the inner walls of the building, removing the insulation and replacing both the walls and insulation. The appellate court held that the plaintiffs were not barred as a matter of law from maintaining an action in strict products liability for damage to their property It focused on the fact that the claim for damages was not based on the defective nature of the product but, rather, on the basis that the product was "dangerously defective." Shooshanian, 672 R2d at 463¿64.

    In Philadelphia Nat. Bank v. Dow Chemical Co., 605 E Supp. 60 (E.D. Pa. 1985), the plaintiff brought an action for damages against the manufacturer of a product called Sarabond, an ingredient in the mortar used in the construction of plaintiff's bank building. The plaintiff contended that Sarabond caused corrosion of metals embedded in the mortar and brick panels of its building and cracking of masonry on the exterior of the building and sought recovery for: (1) costs of inspection and repair of the building; (2) loss of the building's use; (3) loss of customers; and (4) loss of employee time. On motion for summary judgment by the manufacturer, the court restated the issue as whether the defect rendered the product unsafe or whether it merely made the product ineffective. If it were the latter, the claim would be barred under the economic loss doctrine; if the former, it would be recoverable in tort. The court found that the plaintiff had demonstrated "a very real risk of injury to persons, byway of crumbling mortar and falling bricks," despite efforts at emergency repairs. Philadelphia Nat. Bank, 605 E Supp. at 63. Based on the plaintiff's showing, and relying on two Pennsylvania court of common pleas decisions that held that strict liability applied to asbestos products used in the construction of schools, the court denied the motion for summary judgment and found that the plaintiff could recover in tort. Id. at 64¿65.

    Similarly, in Roseville Plaza Ltd. v. United States Gypsum Co., 811 E Supp. 1200 (E.D. Mich. 1992), the federal court held that a building owner's claim in tort against a seller of asbestos for abatement costs could withstand a motion to dismiss. There, the court reasoned that the plaintiff sought recovery for "analysis, removal, and replacement of the asbestos¿containing building materials and other asbestos contaminated property . . ." Roseville Plaza, 811 E Supp. at 1205. Thus, because the claim was not based on the failure of the product to perform as a fire retardant, the action was better grounded in tort than in contract.

    The Philadelphia, Shooshanian and Roseville analyses logically apply in indoor pollution settings. If the risk of harm to the public, whether business guests or employees, is unreasonable it can trigger a duty to abate the problem. Although the degree of danger and risk of harm may vary from asbestos to formaldehyde and other less toxic contaminants, the issue is whether each such risk is unreasonable. Ultimately, these risks may have to be evaluated by the courts on a case¿by¿case basis.

    Liability of Contractors

    and Subcontractors

    Like building owner/occupants and manufacturers, contractors and subcontractors can be held liable for IAQ problems. Regardless of whether the employer is liable for the negligence of its independent contractor, the contractor is responsible for its own negligence. An independent contractor's general undertaking to perform a job carries with it a promise, implied in fact, that the operation will be conducted in a safe, skillful, and generally workmanlike manner. In Cogan Kibler v. Vito, 695 A.2d 191 (Md. 1997), for example, an employee at a work site undergoing renovations by a subcontractor was allegedly injured due to inhalation of paint primer fumes in her business office during working hours. The defendant argued that the doctrine of res ipsa loquitur was not applicable because the HVAC system that allegedly distributed these fumes to plaintiff's work area was not within the defendant's exclusive control. However, the court found that res ipsa loquitur may still be applicable.

    Because there was no evidence to prove that the HVAC system was either installed or operational, the court reasoned that if the system was not functioning, then the fumes would not have required the HVAC system to deliver its harm. Furthermore, the court held that res ipsa loquitur was not necessary to establish a prima facie case against the subcontractor because a fact finder could reasonably determine that the subcontractor's employee was negligent in failing to provide adequate ventilation. Thus, control of the HVAC system could only be dispositive on the issue of res ipsa loquitur,but a claim of negligence could proceed regardless. See Cogan Kibler, 695 A.2d at 197¿98.

    Aside from any contractual or warranty obligations, a contractor (or anyone for that matter) creating an unreasonable risk of physical harm has a duty to abate the same and can be held liable for abatement costs incurred by others. See United States v. Reserve Mining Co., 408 E Supp. 1212 (D. Minn. 1976) (mining company required to reimburse Army Corps of Engineers for costs incurred in abating contamination of drinking water with carcinogenic amphibole asbestos fibers). At least one court, however, has distinguished abatement costs from civil penalties imposed by regulatory authorities. In Beerman Realty, Inc. v. Alloyd Asbestos Abatement Co., 653 N.E.2d 1218 (Ohio Ct. App. 1995), the court ruled that the contractor was not liable to the building owner for civil penalties assessed for failure to comply with Clean AirAct requirements. Although the building owner had reached an agreement with the contractor to follow all Clean Air Act provisions, the owner was still liable for civil penalties assessed for the contractor's noncompliance. The court reasoned that requiring indemnification would contravene public policy by eliminating an owner's incentive to ensure regulatory compliance. See id. at 1220.

    Design Professional Liability

    The common law tort theories could be extended to design professionals as well. An action for damages against a design professional would most likely be asserted on the grounds of negligent performance of professional services. See Bus. Men's Assurance Co. of Am. v. Graham, 891 S.W2d 438, 454 (Mo. App.WD.1994) (allowing plaintiff to seek damages against an architect for economic damages in tort). An action for abatement costs as to a design professional would, in all probability, be based on the negligent design or negligent approval of construction. See Evanston Ins. Co. v. Treister, 794 E Supp. 560 (D. V I. 1992). Strict liability claims, however, are generally not allowed against persons providing professional services. See, e.g., Bruzga v. PMR Architects, P.C., 693 A.2d 401 (N.H.1997) (refusing to extend strict liability to architects, contractors, engineers, and vast array of others involved in design and construction of buildings).

    Thus, civil claims for property damage and personal injury are available to IAQ claimants based on common law theories, including negligence and, in some cases, strict liability. liability may be found on the part of building owners, property managers, lessees or other occupants, employers, manufacturers, contractor manufacturers and design professionals. Common law duties may require an owner, occupant or employer to abate a potential IAQ problem before injury occurs and may require a manufacturer or contractor to indemnify the abating party.

    While common law causes of action are just one tool for addressing IAQ problems, they are in part filling the regulatory gaps that exist at the federal and state level. The law governing IAQ claims, however, is still evolving and reforming as it applies traditional areas of tort and contract law to complex factual situations. Counsel should be particularly aware of the subtleties and public policies implicit in these opinions, as these appear to be the primary forces guiding the courts in IAQ cases.