An Air of Concern

Indoor air quality problems, if left unaddressed, can create havoc for school administrators and lead to possible litigation.

During the last decade, substantial evidence has emerged that indoor air quality (IAQ) is among the most significant environmental risks to the public. Moreover, there is abundant evidence that poor IAQ is a common problem in schools.

While the causes of specific indoor air problems may be complex, it is clear that deferred maintenance and aging HVAC systems are major contributors. Poor air distribution, inadequate air filtration, inadequate amounts of outside air ventilation, poor control of temperature and humidity, dirty air ducts and condensate traps are some examples of HVAC problems that can degrade IAQ. Other causes may be blocked air pathways; remodeling that produces gases and odors that the HVAC system is unable to promptly remove; other localized contaminant sources like copiers, laser printers, kilns and stoves; and mold or mildew growth. New research indicates that volatile organic compound (VOC) concentration-from such things as tile, carpet, paint, varnish, furniture, glue and cleaning products-is a major cause of IAQ complaints.

Identifying symptoms Symptoms of poor IAQ include sore throats, chest congestion, nausea, allergic reactions, headaches, eye irritation and rapid spread of airborne infectious diseases like the flu. Approximately 20 percent of the population is particularly susceptible to airborne air pollutants. There is evidence that the prevalence of respiratory complaints is rising; for example, the number of children with asthma increased 60 percent in the 1980s, and the rate as a percent of the population is still rising.

The Environmental Protection Agency (EPA) has identified a variety of reasons why IAQ problems are particularly prevalent in schools, including: -Schools have approximately four times the number of occupants per square foot as office buildings. -A variety of pollutant sources typically exist within a school. -Schools typically have a large number of HVAC systems, often with differing maintenance requirements and without adequate funding to maintain them. A 1995 General Accounting Office (GAO) survey revealed that HVAC, ventilation and IAQ issues were the most significant infrastructure problems faced by schools.

Following standards The principal industry standard for IAQ is the American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE) Standard 62-1989. The Occupational Safety and Health Administration's (OSHA) proposed IAQ rule and EPA's "Tools for Schools" kit both reference this standard.

ASHRAE Standard 62-1989, "Ventilation for Acceptable Indoor Air Quality," defines "acceptable indoor air quality" as "air in which there are no known contaminants at harmful concentrations as determined by cognizant authorities and with which a substantial majority (80 percent ormore) of the people exposed do not express dissatisfaction." The standard also contains guidance for system and equipment standards, and sets a procedure for ensuring adequate IAQ.

On April 5, 1994, OSHA proposed a rule on IAQ, which has yet to be finalized. The rule requires an employer to develop a written IAQ program providing for preventive building-systems maintenance that reflects the equipment manufacturer's recommendations, as well as general industry-recommended good practices.

Separately, the proposed rule contains several specific requirements for a compliance program, and would require schools to: -Maintain relative humidity below 60 percent if it has a mechanical cooling system. -Maintain regular monitoring of carbon-dioxide levels, and if levels exceed 800 ppm, take action to correct the problem. -Keep windows, doors and other portals without mechanical ventilation in operating order. -Ensure that the HVAC system is made consistent with the applicable building, mechanical or ventilation code.

The proposed rule also contains specific requirements for designated smoking spaces, limiting microbial contamination by drying damp materials and repairing water leaks, and warning employees of any use of pesticides and other hazardous chemicals. Finally, the rule contains provisions for training, recordkeeping, specific requirements for remodeling and renovation, and designation of an individual responsible for ensuring compliance with the provisions of the rule.

Protecting against liabilities Despite the known IAQ risks, there are no federal regulations addressing IAQ. However, there is still a risk of lawsuits over perceived failure to act in light of the known and significant risks associated with IAQ. A school that fails to take actions consistent with existing IAQ guidelines and standards runs the risk of being liable for negligence. The risk is significant because, under negligence theory, a school's liability is not limited to the costs of remedying the IAQ problem-it also faces the threat of actual and punitive damages. In some states, however, school administrators or oversight boards may only be liable for intentional acts.

Negligence is commonly defined as the failure to do what a reasonable person would do in the same or similar circumstances. In analyzing whether negligence has occurred, there are four specific elements to be considered: -A duty, recognized by the law, requiring a person to conform to a certain standard of conduct. -A failure of that person to conform to the required standard, which is known as a "breach" of the duty. -"Legal" or "proximate cause," which consists of a showing of a reasonably close causal connection between the act and the injury. -Actual damage.

The central issue in an IAQ case is likely to be whether the conduct of a school is reasonable in light of the known and foreseeable risks associated with IAQ. If a school fails to take action, it may find it difficult to credibly assert that it has met this standard of care.

Both EPA and OSHA have concluded that the risks associated with IAQ are significant. In light of the known risks, plaintiffs may argue that it is unreasonable for a school to fail to take action to address these problems. Plaintiffs can point to the ASHRAE standard, the proposed OSHA rule and EPA guidelines as evidence of the appropriate standard of care, and that failure to comply with the ASHRAE standard, in particular, is presumptive evidence of negligence.

A plaintiff would need to prove proximate cause and actual injury. Proximate cause is closely related to whether the school had a duty of care to the plaintiff. Plaintiffs likely will point to the availability of information regarding the effects of IAQ problems and argue that this is strong evidence that injuries were foreseeable. Further, he or she likely will try to develop specific facts in each case that demonstrate the foreseeability of injury. In cases where there were repeated complaints about IAQ from students or teachers, it will be easier for a plaintiff to meet the required elementof proof. The final element of proof, actual injury, will turn on the facts of each case and probably will involve expert testimony.

The majority of IAQ cases brought to date, including several involving schools, have been settled before judicial decisions were issued. For example, in 1990, a multi-million-dollar suit was brought by the parents of children in the Amelia Scudder Elementary School, Texas, alleging that exposure to indoor air contaminants had caused physical injuries, including nausea, vomiting, lethargy, dizziness, and irritation of the eyes, nose and throat. After five years, the lawsuit was settled for an undisclosed amount.

A primary strategy to manage the risk of poor IAQ should be the proper design, maintenance and operation of school HVAC systems. To modernize an HVAC system, energy service companies (ESCOs), which guarantee both energy savings and indoor comfort variables like temperature, humidity and light levels, may be a valuable ally. Their services can ensure that an air system is cleaned properly, airflow is adequate, filters are upgraded to minimum dust-spot efficiencies of 60 percent, unit ventilators are maintained properly, and variable-air-volume systems are operated to maintain adequate IAQ.

Another advantage is that ESCOs provide the upfront capital and assume the technical risk of performance. ESCOs provide energy-savings guarantees that are, at a minimum, sufficient to cover the debt service for the new equipment. In addition, many strategies for preventing and resolving IAQ problems can save school facilities money on current operating costs like energy and equipment repairs. Effective management of IAQ liability risk requires a comprehensive review and action plan for prevention and resolution strategies.

Ignoring the existence of potential IAQ problems is a poor strategy for school administrators. The existence of a significant body of scientific literature; guidelines created by national regulatory and technical organizations; and analogous case law all suggest that a plaintiff may have a reasonable argument that the school district and its administrators should have known that IAQ problems were a potential risk; and thus should have acted to mitigate those risks.

According to EPA, the goal of its "Tools for Schools" kit "is to provide clear and easily applied guidance that will help prevent IAQ problems and resolve such problems promptly if they do arise," although EPA states clearly that the kit does not provide enforceable regulations.

The kit consists of several checklists to ensure adequate IAQ, including the ventilation checklist, which contains specific maintenance and performance standards for outdoor air intakes, system cleanliness, system controls, air distribution and exhaust systems. If a school cannot meet ASHRAE's ventilation standard, it should repair its system to meet design specifications. If that does not resolve the problem, the school should consider retrofitting the ventilation system. For more information, call EPA at (202)233-9030.

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