Clearing the air

As a first step, we need a clear understanding of the terms IEQ (indoor environmental quality) and IAQ (indoor air quality), as they are frequently confused and often used interchangeably.

We each need to take a deep personal interest in IAQ as it is the quality of the air we breathe; the life force we inhale into our lungs, approximately 0.5 litre, 12 to 20 times per minute.

Put simply, IEQ is primarily how we feel (thermal comfort), are we too warm, or too cool”?, or like Goldilocks “just right”, and it also includes humidity levels, acoustics and lighting, however the more important impact on health and wellbeing and ultimate driver of productivity is indoor air quality (IAQ).

This presents a vastly more complex problem to solve, than thermal comfort.

Product liability

The proposition that conditioned air, that is, ambient or re-cycled air, can be considered a “product” when it is “delivered” to the consumer (building occupant”) through an HVAC system after it has been modified or otherwise filtered was first put forward in 1995 at the Healthy Buildings International Conference in Milan and reported by the author in Property Australia (vol. 11 no. 8 May 1997).

Indoor air could be legally defined as a product, and therefore subject to the same legal standards as other products in commerce, predicated on the fact that when ambient (fresh) air (a natural resource) is taken, conditioned (an altering process) and redistributed into a closed environment, the strictures of product liability law will apply to this indoor air.

Legal precedent in product liability case law indicates the legal liability of providers of water and electricity as products. Both are naturally occurring resources that are affected by human activity, and delivered to consumers.

When these commodities are poorly, inadequately or negligently prepared, or are deemed unreasonably dangerous, the injured plaintiff will be afforded recourse through products liability law. It is suggested that the same should apply to indoor air “produced” by HVAC systems.

While it has been established that ambient air is within the definition of “natural resource”, there are many other aspects of this proposal that involve further legal definition and clarification.

Does poor IAQ constitute a defective product?

Litigation, related to indoor air quality related issues, commenced in the United States in the early 1980s involving lawsuits associated with operational exposure to single contaminants, such as asbestos and pesticides. Most were settled out of court to avoid setting a precedent.

Chemical exposure

Since the end of World War 2 only around 200 of the estimated 80,000 new chemicals developed in the past 100 years have been investigated in any detail regarding the toxicity, interaction or harmful health effects. These chemicals form the basis for formulating over 200,000 brand name products used for a variety of industrial, commercial and residential uses throughout Australia. Very little is known of their reactions or damaging additive or synergistic effects, that might occur during or after exposure to chemicals, particularly in indoor environments where they are constituents of various building materials, insulation, electrical conduits, plastic piping, sealants, air-conditioning ducting, solvents, adhesives, paints, preservatives, pesticides, and floor leveling compounds.

The current approach is to specify and use low emission materials and more lately lists of lowest concentrations of interest (LCIs) for about 200 individual VOCs., and a review of VVOCs ( very volatile organic compounds) and certain amines. Although this can aid manufacturers toward reducing overall emissions and reducing the risk of their products having a negative impact on human health, there are no regulations in Australia on chemical emissions from building materials.

De facto environmental certification schemes have been developed by industry associations that include material emission limits, but the legal standing of these certifications raise considerable doubts.

Adverse health effects

Many studies are now demonstrating adverse health effects at levels of air pollutants well below published air quality guidelines.

In Australia no single government authority in any jurisdiction has responsibility for indoor air quality. Although there is an Australian Standard AS 1668- 1.2. 2012 The use of ventilation and air conditioning in buildings Part 2 referenced under the Building Code of Australia, is based on the dilution of pollutants through increased ventilation rates.

There is increasing evidence from indoor air chemistry studies that many adverse chemical reactions occur faster than the ventilation rate.

Product liability case law

In the Australian legal context, liability issues associated with IAQ have been dealt with under both common law and statute law. In general terms, a successful legal action requires the meeting of the following conditions:

• Establishment of liability;

• Establishment of causality (except in the case of strict liability);

• Timeliness of the complaint (within any statutory limitation period); and

• Establishment of an appropriate legal remedy.

In the case of poor indoor air quality it is difficult to prove what levels of respective pollutants are considered to be harmful, thus “defective air.”

Neither indoor nor outdoor environmental sampling is a good predictor of personal exposure, nor energy rating systems an indicator of clean, uncontaminated indoor air.

Changing from “Acceptable” to Optimum

Occupant evaluation of air quality is subjective, and not indicative of health risks associated with breathing polluted air, often confusing air movement with air freshness (i.e. free of pollutants)

Building rating schemes aim to deliver code compliant “acceptable” quality indoor air to building occupants, however less than optimum air has a significant effect on occupant health as well as performance, particularly decision-making and taking initiative. Perceived air quality is the basis for current ASHRAE guidelines and standards for ventilation applied almost universally.

Disclaimer: The writer has no legal qualifications, nor legal training. He does have 25 + years dealing with indoor air quality issues in commercial spaces and 25 + years researching how living plants clean air of volatile organic compounds (VOCs).

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