June 01, 2017

The Invisible Issue in America’s Classrooms: Addressing Indoor Air Quality through the Law

Roger Hanshaw

Last year approximately 50 million students attended over 98,000 public elementary and secondary schools in the United States. As the safety of students in public schools becomes an increasingly important concern for parents, teachers, and school administrators everywhere, the overall health of the school environment is coming under increasingly greater scrutiny. But concerns over school safety are not limited to physical access to the school building; exposure to potentially harmful or dangerous substances in the school environment now play a larger role in school design, construction, and operation. Indeed, indoor air quality has become a key consideration for school administrators, regulators, and contractors at every stage of school construction, operation, and maintenance of new schools in the United States. The growing concern over indoor air quality in schools has played a significant role in recent litigation, as well as in the development of new regulations on exposure to certain chemical compounds.

When considering the high percentage of a child’s developmental years that is spent in school buildings, it should come as no surprise that state and federal lawmakers and regulatory agencies have taken notice of the importance of maintaining a healthy atmosphere in the school building. Likewise, school employees who spend their entire careers in school buildings are rightly concerned that the indoor air quality in their workplace does not subject them to potential health hazards due to chronic exposure to conditions that can cause or exacerbate health conditions.

One common affliction that appears in connection with claims based on poor indoor air quality is “sick building syndrome,” where a patient presents with any number of physical symptoms that might include chronic headaches, tiredness, eye strain, fatigue, and even gastrointestinal distress, and that cannot be attributed to an identifiable illness. See Pyle, Environmental Law in an Office Building: The Sick Building Syndrome, 9 J. Envtl. L. & Litig. 173 (1994). Sick building syndrome (sometimes referred to as tight building syndrome) is generally attributed to exposure to chemical or biological materials that accumulate in buildings with poor or inadequate ventilation. For example, in buildings that are more airtight and less “breathable,” a common architectural design in the 1970s and ’80s, mold is known to accumulate at rates faster than in buildings with greater “breathability.” Similarly, the use of paints and chemical cleaners in such buildings can lead to more accumulation of residual chemicals than in buildings with greater breathability. Adequate ventilation can solve many of the issues associated with tight buildings. Nevertheless, careful attention should be paid when occupants, including students and teachers, display or complain of symptoms of sick building syndrome given the number and age of the people who occupy these buildings.

Poor indoor air quality also is known to exacerbate certain identifiable medical conditions. Collectively referred to as “building-related illnesses,” these conditions differ from sick building syndrome in at least one key way: they are known and identifiable medical conditions that are linked specifically to exposure to the conditions inside a building. A person with a building-related illness may continue to exhibit symptoms even after the exposure to the building has ended. Building-related illnesses may take the form of many well-known medical conditions, including asthma, allergies, and a wide variety of respiratory conditions.

Litigating the Latent Hazards of Poor Indoor Air Quality

Despite recent moves by state and federal environmental regulatory agencies to address issues of poor indoor air quality in school across the nation, legal activity surrounding indoor air quality in schools is nothing new. Although now over a decade old, a 2005 publication by the Environmental Law Institute entitled School District Liability for Indoor Air Quality Conditions, available at www.eli.org/sites/default/files/eli-pubs/d15__09.pdf, still paints a very clear picture today of just how serious the issue of indoor air quality is for school administrators. Allegations of poor indoor air quality in schools can serve as the basis for a wide range of causes of action, including claims for personal injury, workers’ compensation issues, violations of the Americans with Disabilities Act (ADA), and even personal property damage. Students or school employees who allege poor indoor air quality in a school typically have a variety of forums in which such a claim might be addressed, including administrative law routes involving a state or federal regulatory body, or the state and federal courts. Because claims of poor indoor air quality in a school are likely to involve a combination of state and federal laws and regulations, every case will be different in terms of the forum, the claims, and the universe of available remedies.

A typical lawsuit over indoor air quality at a school usually will allege one or more of the following: (1) an act of negligence, (2) a violation of some protective statute such as the ADA or a parallel state statute, or (3) a workers’ compensation claim. These common causes of action share certain characteristics that plaintiffs and defendants should be aware of when preparing to handle such a claim.

In cases of alleged negligence, a plaintiff typically can be expected to allege that he or she has contracted sick building syndrome or some building-related illness as a result of the conditions to which he or she was exposed at the school. Like most torts grounded in negligence, in order to prevail, a plaintiff asserting negligence against a school district as a result of poor indoor air quality conditions must prove (1) the school district owed a duty to the student or employee, (2) the school district breached that duty, (3) the student or employee was injured, and (4) the injury was proximately caused by the school district’s breach of its duty. This can be a high bar.

Of the four traditional elements of an action for negligence, it is the third element—actual injury—that frequently represents the highest hurdle for a plaintiff seeking to recover damages for poor indoor air quality in a school. It is not enough for a plaintiff to prove simply the harmful air conditions at a school. The plaintiff must prove that she or he has suffered an injury in fact. For example, in Adams-Arapahoe School Dist. No. 28-J v. U.S. Gypsum Co., 958 F.2d 381 (10th Cir. 1992), a Colorado school district sought damages from the manufacturer of ceiling tiles that allegedly contained asbestos. The school district advanced theories of negligence and strict liability in support of its claims for damages for the cost of removing the tiles. 958 F.2d at 381. However, the Tenth Circuit held that because the school district could not prove actual injury, its claims for negligence could not advance. Id. at 382. The court noted that “[e]vidence of a mere possibility that a condition may have existed is not sufficient to support a verdict.” Id. at 382 (citing Peterson v. Grattan, 578 P. 2d 1063, 1067 (1978)). Actions for negligence are governed almost exclusively by state law, and courts in other jurisdictions have reached similar conclusions on the requirement of actual injury.

In other cases involving poor indoor air quality in schools, plaintiffs often allege that the environmental conditions in the school building violate one or more statutes that afford specific protections to the plaintiff. Among the most commonly invoked statutes in such cases is the ADA. Section 504 of the ADA requires schools receiving federal aid, which includes most public schools in the nation, to make certain accommodations for students who (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of such an impairment, or (3) are regarded as having such an impairment. 29 U.S.C. § 794. When a student requests an accommodation under the ADA, the school must determine how, or whether, to comply. Id. In situations where indoor air quality is alleged to have caused or exacerbated a medical condition, the plaintiff typically suffers from asthma, allergy, or another related respiratory condition. Prevailing on such a claim, however, requires that a plaintiff do more than simply prove that the indoor air quality of the school environment is harmful.

As an example of how an ADA claim might be decided in the context of the school environment, consider Ekweani v. Board of Education of Howard County, 2008 WL 5525606, Case No. CCB-07-3732 (D. Md. Dec. 2008). In Ekweani, the plaintiff alleged that her daughter “suffered massive, near-death, acute respiratory failure two to three times a year” resulting in hospital stays, which “disrupted her education and rendered her disabled.” 2008 WL 5525606 at *1. The student was eventually removed from the school, and when the student’s mother filed a lawsuit against the school district, the complaint alleged that “hazardous, toxic conditions” existed at the school, including “lack of windows and lack of adequate ventilation due to defective and substandard design and construction, substandard air quality, toxic mold, asbestos and other environmental conditions.” Id. The complaint alleged violations of the ADA and other federal statutes, as well as federal Section 1983 claims, and various state law tort claims. According to the plaintiff’s complaint, the school district’s failure to abate the poor air quality in the school building amounted to a discriminatory exclusion of the student on the basis of the student’s allergy to mold. The court dismissed the entire complaint. Id.

In concluding that the plaintiff’s claims in Ekweani should be dismissed, the court reasoned that the complaint failed to state a claim under the ADA since the plaintiff’s daughter never sought a reasonable accommodation for her disability, and that the school district’s actions were not motivated by the student’s disability. Id. The decision in Ekweani underscores the critical importance of proper pleading in cases involving environmental health. While well-drafted complaints are always desirable, they are necessary to the successful prosecution of an environmental claim where the underlying cause of action is based on a statutory provision that creates well-defined elements.

The Legal Response to the Ongoing Impact of Asbestos in Schools

There is perhaps no more widely recognized indoor air quality hazard for schools than asbestos. Although newer materials and legal restrictions have made the use of asbestos in school construction almost entirely a thing of the past, we cannot yet disregard the effect of asbestos on the indoor air quality in schools across the United States. Asbestos was used widely in building construction prior to the 1980s. Today, approximately half the schools in the United States were built between 1950 and 1969, and most that are still in operation contain some asbestos. Its chemical and physical properties make asbestos a particularly problematic air pollutant, but in order for it to have deleterious effects on building occupants it must be inhaled. For school buildings in good repair with a proper maintenance history, the likelihood of asbestos exposure may be marginal. Unfortunately, many schools in the United States have suffered from dwindling maintenance budgets and inadequate school building programs. As a result, chipping paint, crumbling floor and ceiling tiles, damaged plaster and wallboard, deteriorating pipe and steam heating insulation, and antiquated heating and air conditioning equipment all may present potential sources of asbestos exposure in a school.

The legal response took shape in the 1980s. First, the U.S. Environmental Protection Agency (EPA) started taking a critical look at asbestos in schools and developing a regulatory approach to the issue. In 1982, EPA promulgated an Asbestos-in-Schools Rule, 40 C.F.R. 763 Subpart E, which required schools to perform inspections and document the location of asbestos in the school environment. Schools were required to make the results of these inspections available to teachers and parents who wished to see them. Second, in 1984, Congress enacted the Asbestos School Hazard Abatement Act (ASHAA), which provided grants and loans to schools to deal with emergency asbestos management issues. 98 Pub. L. 377. Third, in 1986, Congress passed the Asbestos Hazard Emergency Response Act, which authorized EPA to (1) require schools to prepare an official plan documenting the location of asbestos on school premises and (2) file civil suits for violations of any law pertaining to asbestos. 15 U.S.C. §§ 2641 et seq. Then, in 1990, Congress enacted the Asbestos School Hazard Abatement Reauthorization Act, which required those contractors and professionals working on asbestos remediation in schools to receive accreditation and training to perform asbestos-related work. 20 U.S.C. §§ 4011 et seq.

Asbestos remediation remains a costly and time-intensive undertaking for school districts, partly because of the training and certification that asbestos workers must have before they receive authorization to work in schools. An example of the severity of the problem that asbestos in schools can cause came in 2014, when the Huntington Beach School District in California was forced unexpectedly to take three schools out of service after asbestos was discovered in school classrooms. The emergency asbestos abatement cost the school district millions of dollars and disrupted the school year for hundreds of children and teachers.

Lawsuits against school districts over asbestos exposure have been litigated all across the United States and have resulted in everything from monetary damages awarded to a plaintiff teacher to the complete closure of school buildings. Recently, in 2016, a New Jersey teachers union, the Patterson Education Association, filed a class action lawsuit alleging that a school district did not properly follow applicable guidelines for the handling of asbestos and mold in 10 school buildings in Patterson, New Jersey. Jayed Rahman, Paterson school buildings are ‘environmentally safe’ says superintendent, Paterson Times, Dec. 23, 2016, available at http://patersontimes.com/2016/12/23/paterson-school-buildings-are-environmentally-safe-says-superintendent/.

EPA’s Recent Rulemaking on Formaldehyde and Its Implications for Schools

Air quality concerns in the context of a school environment are not limited to litigation over the situation in old or poorly managed school buildings. Architects and engineers who advise school districts on new school construction also must confront issues related to indoor air quality when designing and constructing a brand new school. Indoor air quality considerations can impact a builder’s choice of materials for use in a new school.

For example, recent research suggests that certain wood products commonly used in building construction may have the potential to emit formaldehyde at rates above what is considered acceptable by regulatory agencies. Formaldehyde is a simple chemical commonly used in the production of certain wood products, including plywood, fiberboard, compressed wood sheeting, certain types of decorative paneling, and a variety of other products that use glues, resins, and other adhesives in their preparation. Formaldehyde is also an important component of many fumigants and pesticide compounds. Exposure to unhealthy levels of formaldehyde is reported to cause immune reactions in susceptible populations, and it is thought to have a carcinogenic effect under certain circumstances. The concern over formaldehyde from an indoor air quality perspective comes from the periodic release of the chemical from the glues and resins used in various building products once construction of the school building is complete. The potential for formaldehyde release differs greatly depending on the local school environment and the type of materials used in construction. According to various EPA reports, certain formaldehyde-containing insulations, including urea-formaldehyde foam insulation, are thought to have higher formaldehyde release rates than other commonly used materials.

These concerns have prompted EPA to promulgate new regulations on formaldehyde emissions from compressed wood products. After many months of anticipation by the construction materials industry, on December 12, 2016, EPA published in the Federal Register a final rule intended to limit formaldehyde exposure from emissions by composite wood materials. 81 Fed. Reg. 89,674 (Dec. 12, 2016). This rule was over six years in the making, beginning in 2010, when Congress passed and President Obama signed the Formaldehyde Standards for Composite Wood Products Act. This Act, now codified at 15 U.S.C. § 2697, amended a portion of the Toxic Substances Control Act (TSCA) to create formaldehyde emission standards for various classes of pressed and composite wood building materials. The emission standards and other requirements of the Act were meant to mirror standards previously adopted by the California Air Resources Board.

The Act also authorized the EPA Administrator to promulgate various rules to effectuate the purposes of the Act, and on June 10, 2013, EPA proposed the first rules under the Act, including two rules that provided for the implementation of the Act, and a third-party certification program. Finalized as 40 C.F.R. Part 770, the rule underscores the seriousness with which EPA is taking the issue of indoor air quality, and should be a signal to those professionals involved in school planning and construction of the importance of ensuring a quality indoor atmosphere in places where so many Americans, students and employees alike, spend so much of their lives.

The Unseen Consequences of Ignoring Indoor Air Quality in Schools

School administrators and those professionals charged with keeping schools running have a long list of rules and requirements that must be met in order to satisfy federal, state, and even local requirements for how children are educated in the United States. Even though the physical environment in which students and teachers spend their days is a central part of the overall learning environment, it is, sadly, too often relegated to the end of the list of concerns because of budget pressures and overall lack of resources for school districts. In an environment of shrinking maintenance budgets and increasing pressure on school administrators to reduce costs, performing necessary maintenance to prevent indoor air quality problems before they arise can be a challenge. Further, the overall indoor air quality of a school environment is a function of several interconnected factors, including the age and physical condition of the school, the materials from which the school was constructed, and even the location of the school building, and there can be scientific and medical uncertainty surrounding disease and the effect of indoor air.

The consequences of failing to address these concerns can be significant. Indoor air quality is linked to a growing list of health concerns for the millions of Americans—students, teachers, and school employees—who spend so much of their time in school buildings. For school administrators—and the lawyers, consultants, and other professionals who advise them—liability arising out of indoor air quality concerns all too often can be eclipsed by myriad other pressing matters that arise in a school building every day. Moreover, these problems, when they exist, can subject a school district to liabilities ranging from common law tort claims to alleged violations of the Americans with Disabilities Act, and even workers’ compensation claims by teachers and school employees who often spend their entire careers in the school environment. Maintaining a healthy school environment involves attending to a multitude of factors all at once, and although one of those factors—indoor air quality—may not be seen, it must always be remembered.

Roger Hanshaw

Mr. Hanshaw is special counsel in the Environmental and Regulatory Practice Group in the Charleston, West Virginia, office of Bowles Rice LLP. He may be reached at rhanshaw@bowlesrice.com.