Indoor environment: regulatory developments and emerging standards of care.

• Author: Kopon, Andrew, Jr.

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).

ENVIRONMENTAL TOBACCO SMOKE

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.

For example, in October 1991, 30 current and former flight attendants filed the first class action suit against tobacco companies involving ETS exposure. The complaint contained counts in strict liability, breach of warranty, fraud and misrepresentation, and conspiracy to commit fraud.(9) The Florida trial court refused to certify the class, finding "too many variables" in the plaintiffs' exposure to ETS, such as diverse working conditions, varying work hours, and exposure to ETS outside the workplace. The Florida Court of Appeal reversed the trial court's ruling and held that the complaint satisfied Florida's class action requirements.(10)

In October 1994, the court of appeal denied the defendants' petition for rehearing and lifted a discovery stay. It found that three issues could be certified: (1) how much exposure to ETS causes injury; (2) whether the tobacco industry knew that second-hand smoke causes injury and misrepresented data on the risk; and (3) whether the industry has a duty to warn nonsmokers about ETS.(11)

OSHA regulates industrial pollutants, but it has been slow to establish standards for exposure to pollutants such as ETS in office settings.(12) However, the Department of Labor has proposed a ban on smoking in open areas at every work place.(13) These regulations would require all employers to ban smoking or provide separate ventilation for smoking areas. State and local legislation restricting smoking in most other areas of public gathering has put OSHA under increasing pressure to address smoking in the work place. Opponents of ETS argue that because smoking bears no relationship to any manufacturing, service or other industry, there is no reason to allow smoking in the work place. This cannot be said of many dangerous chemicals, which, while precautions are taken and regulations promulgated, cannot be eliminated from the manufacturing environment.

With the exception of inmates claiming Eighth Amendment violations arising from ETS exposure, plaintiffs alleging a constitutional right to breathe clean air have not fared well. In Gasper v. Louisiana Stadium & Exposition District(14) plaintiffs filed a class action seeking to enjoin smoking in the Louisiana Superdome during events there. Filed under 42 U.S.C. [sections] 1983, the complaint alleged that the plaintiffs' First Amendment rights to receive others' thoughts and ideas at a public function were abridged because that right could not be enjoyed without exposure to hazardous smoke. They also contended that the state, which owns and operates the Superdome, deprived them of their right to breathe clean air freely, which was an alleged deprivation without due process of the exercise of the right to pursue life, liberty and property.

The federal district court dismissed and the Fifth Circuit affirmed, disparaging the claim that any infringement of rights were of a constitutional dimension. The court stated that recognition of such a constitutional right would be the equivalent of resurrecting Prohibition, which the court claimed involved a substance "fully as physically harmful as tobacco smoke, if not more so."

Government employees also have been unsuccessful in alleging that ETS exposure in the work place constitutes a constitutional tort entitling victims to damages and injunctive relief.(15)

In Helling v. McKinley,(16) however, the U.S. Supreme Court recognized that the Eighth Amendment's prohibition against cruel and unusual punishment is violated if an inmate is exposed to ETS at levels sufficient to create an unreasonable risk of harm to his future health. Because the Court lacked information regarding the prison conditions and what manner of separation of smokers and non-smokers would meet the constitutional standard, it affirmed the Ninth Circuit's remand to the district court to allow the plaintiff to present his case.

On remand, the Court stated, the plaintiff was obliged to prove the objective component of an Eighth Amendment violation, that he was presently exposed to unreasonably high levels of ETS, and the subjective component, that prison officials were now exposing him to dangerous levels of ETS with deliberate indifference to his welfare. The Court noted that the plaintiff might have difficulty satisfying both elements because he had since been transferred to a different Nevada prison where he was no longer housed with a five-pack-a-day smoker. Then too, the entire Nevada prison system had adopted a formal smoking policy that restricted smoking to designated areas in non-dormitory settings and that directed wardens to designate non-smoking areas in prison dormitories contingent on space availability.

Most workers who claim injury from ETS exposure in the work place have pursued claims under common law theories and under unemployment, disability and worker's compensation statutes. Courts appear to be more inclined to grant injunctive relief to non-smokers subjected to ETS as opposed to damage claims.

In Shimp v. New Jersey Bell Telephone Co.(17) the plaintiff sought an injunction against smoking in her immediate work area, alleging that her employer violated its duty under New Jersey common law to provide a safe working environment. The New Jersey Superior Court, Chancery Division, accepted the plaintiff's contention that she experienced a severe allergic reaction to ETS. It took judicial notice of cigarette smoke's toxicity, reviewed the scientific evidence presented, and concluded that ETS was toxic to non-smokers and was not a necessary by-product of the employer's business activities. The court went on to hold that the evidence compelled it to enjoin the employer from allowing workers to smoke anywhere but in the office cafeteria, which was a designated smoking area.

Non-smokers also have had some success in litigating unemployment and workers' compensation claims based on ETS exposure. In Lapham v. Unemployment Board of Review(18) a Pennsylvania court upheld an employee's right to unemployment compensation...