Academic journal article Defense Counsel Journal

Indoor Environment: Regulatory Developments and Emerging Standards of Care

Academic journal article Defense Counsel Journal

Indoor Environment: Regulatory Developments and Emerging Standards of Care

Article excerpt

AVERAGE Americans spend 90 percent of their lives indoors, so the air quality of the indoor environment has enormous health, economic and legal implications.(1) Often indoor air quality is significantly worse than the air outside. A five-year study by the Environmental Protection Agency found that concentrations of chemicals indoors are often 10 times greater than outdoors and that maximum indoor exposures are at least a hundred times greater than maximum outdoor exposures.(2)

Lawyers view questions of risk in the light of standards of care, reasonably foreseeable circumstances, and duties. The public is becoming increasingly informed about indoor air quality issues. As complaints about that quality increase and more research is funded to explore these problems, the standards of care and the scope of duties continue to expand.

Indoor air quality is relevant to lawyers on many levels--as residential occupants, as tenants of commercial property, as employers, and as counsel to employees, employers, building owners and managers, architects, builders, and design and construction engineers. As the implications of indoor air pollutants become more fully understood, defense counsel particularly must be prepared to advise clients as to how to respond to verified risks with reasonable and cost-effective policies.

This article discusses the case law, legislation and regulations regarding these categories of indoor air pollution:

* Environmental tobacco smoke (ETS),(3)

* Asbestos,

* Radon and

* Sick building syndrome (SBS).


In December 1992, the U.S. EPA categorized second-hand smoke as a Group A carcinogen, a classification that places it among the EPA's most dangerous substances, including benzene and asbestos.(4) The EPA uses this designation when sufficient evidence from epidemiologic studies supports a causal association between exposure to the agents and cancer.(5) Scientific studies cited in the EPA report show an increased risk of lung cancer as a result of exposure to second smoke.

In addition to an increased risk of lung cancer, researchers have cited disturbing implications for children from this exposure. Studies have indicated that the nature of their developing lungs render children particularly susceptible to ETS's harmful effects.(6) Both the Occupational and Health Safety Administration and the EPA have found that exposing children to ETS results in hundreds of thousands of lower respiratory infections annually, some leading to hospitalization; exacerbation of asthma symptoms in children already suffering from this disease and statistical correlation between exposure and new cases of asthma; general physical irritations; build-up of fluid in the middle ear; and reduced lung function.(7) The heightened risks to children have prompted non-smoking family members to bring legal actions to restrict other family members from smoking in the home.(8)

Although there are a myriad of state and local smoking laws and ordinances, H.R. 3434 in the 103d Congress, entitled the Smoke-free Environment Act of 1993 and sponsored by Rep. Henry A. Waxman, D.-Calif., would have prohibited smoking in most public and private work places in the United States. Smoking areas could be designated but only if they were separately ventilated from the rest of the building. While this legislation was not enacted, similar proposals are certain to surface in future Congresses.

Under pressure from non-smoking groups, including the Tobacco Working Group, which is composed of the attorneys general from 16 states, many fast-food restaurant chains now ban smoking in their restaurants.

Although the courts have been reluctant to jump into the causation fray, continued health assessments and public pressure will result in increased litigation that will create concerns for businesses and building owners. Courts will find the public policy arguments more persuasive if the evidence implicating ETS accumulates. …

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