Sit Back, Relax, and Take a Deep Breath

Sit Back, Relax, and Take a Deep Breath: Challenges and Opportunities for an Invisible Public Health Crisis

By Louise Walter, Staff Contributor

Our lives — not to mention our daily wellbeing and productivity — depend on quality air. Air pollution causes more deaths than HIV, traffic accidents, and diabetes combined,[1] and chronic conditions such as asthma are on the rise.[2] But while outdoor air pollution often gets more political and media attention, most of these deaths are caused by indoor air pollution[3] — and shorter lifespans are just the beginning.

The average American spends ninety percent of the time indoors, and indoor air is usually of lower quality than outdoor air.[4] Toxic indoor air leads to both short- and long-term health concerns. Sick Building Syndrome (SBS) occurs when building occupants experience acute health and comfort effects that appear linked to time spent in a building, but for which no specific cause can be identified.[5] It is characterized by symptoms such as headaches; eye, nose, or throat irritation; coughing; dry or itchy skin; dizziness and nausea; difficulty concentrating; fatigue; and sensitivity to odors.[6] Some people are so sensitive to the effects of air contaminants that SBS becomes an unmanageable condition for 21st century indoor life, a condition known as Multiple Chemical Sensitivities (MCS).[7]

Reports of SBS first emerged in the early 1970s.[8] It has been attributed to two simultaneous trends. First, since World War II, there has been an explosion in the variety and quantity of synthetic materials used in office buildings. Second, the 1973-74 energy crisis prompted changes in building construction and operation to insulate and “tighten” buildings, reducing energy expenditures but also ventilation.[9] Poor ventilation means contaminants build up and become trapped inside the spaces where we take most of our breaths.

Indoor air pollutants come from both indoor and outdoor sources. Indoor pollutants of outdoor origin may include ozone, dust, pollen, carbon dioxide, and fine particulate matter.[10] Pollutants of indoor origin may include mold, flame retardants, formaldehyde, and volatile organic chemicals (VOCs) off-gassing from building materials, furniture, clothing, printer ink, markers, electronic equipment, and personal care products.[11] Even carbon dioxide can contribute to SBS symptoms, meaning climate change will only worsen the problem.[12]

Products such as carpeting, paint, and chairs shed chemicals into the air and dust, and these substances end up in our bodies when we breathe and unwittingly transfer dust from our hands to our food and mouths.[13] Many of these substances present not only short-term but also long-term health effects. For example, the EPA classifies formaldehyde — still widely used in building materials and as components of furniture and cabinets, draperies, and mattress ticking — as a probable carcinogen.[14] Flame retardants, which are often added to foam in furniture, curtains, mattresses, electronics, insulation materials, and transportation products, are associated with endocrine disruption, impacts to the immune system, reproductive toxicity, cancer, and neurological effects.[15] Despite their known health concerns, these substances surround us where we live and work.

The benefits of improving indoor environments are difficult to quantify due to probable underreporting and knowledge gaps, but they likely outweigh the costs. A 1997 study found that “potential values for decreases in respiratory disease, reduced asthma risk, reduced [SBS] symptoms, and benefits from direct improvements in performance unrelated to worker health” could result in “annual savings and productivity gain of $28 to $168 billion for American industries.”[16] Moreover, humans arguably have a universal right to a safe and healthy workspace.

Despite the gravity of the indoor air pollution problem and the significant benefits of its improvement, it remains poorly understood and largely unregulated.

First, indoor air pollution receives about 100 times less research funding than outdoor air.[17] A 1984 World Health Organization report estimated that thirty percent of new and renovated buildings worldwide generate excessive indoor air quality complaints; more recent data seems to be lacking.[18] We do not know how significant VOC emissions from televisions, media players, or gaming devices are, as no study has examined this to date.[19] More research is needed to determine the full scope of indoor air pollution’s causes and effects.

In addition, the quality of indoor air is not directly regulated. The EPA does not regulate indoor air outside of industrial settings,[20] and the Occupational Safety and Health Administration (OSHA) does not have indoor air quality standards.[21] Although the legislative intent behind OSHA included the authority to regulate indoor air quality in workplaces, its authority has been significantly tailored; it is limited to setting general duty standards for industrial chemicals.[22]

Indoor air pollution poses unique regulatory challenges due to the sheer number of chemicals and other contaminants that may exist in a given space, as well as the synergistic effects of various chemicals interacting with one another. Measuring air quality is another hurdle: sensor technology is not yet reliably accurate.[23]

Still, recent reforms in toxic substances regulation provide some hope. The Toxic Substances Control Act (TSCA), passed in 1976, is unique among environmental statutes in how early in the chemical lifecycle it goes into effect. Instead of addressing waste that is already in the environment (e.g. the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation, and Liability Act), emissions (e.g. the Clean Air and Water Acts), or even consumer products (e.g. the Consumer Product Safety Act), TSCA goes back to the beginning: it addresses industrial chemicals in commerce in the United States.[24] That is, TSCA generally governs which chemicals can be imported into or exported out of this country, used in manufacturing, and distributed in American commerce.[25] In theory, therefore, TSCA provides EPA with the power to regulate a chemical before it ever ends up in your couch, your walls, or — subsequently — your air.

For decades, in both its plain language and its interpretation, TSCA severely limited EPA’s ability to gather data or restrict uses of chemicals, which were presumed safe until proven toxic. Of the 80,000 chemicals permitted for use in the United States, the EPA has only required about 200 chemicals to be tested, and it has regulated only 9 in the past 40 years.[26] EPA essentially gave up trying to regulate chemicals in 1991 after the Fifth Circuit struck down its attempt to ban asbestos products,[27] the dangers of which had been well known for decades.[28] Disturbingly, unlike 50 other nations, the U.S. still has not completely banned asbestos, which kills 15,000 people per year.[29] Decades of weak chemical regulation in the United States may be a significant factor in this country’s indoor air pollution problem, as thousands of untested chemicals can be found in offices and homes all over the country.

A turning point for U.S. chemical regulation came on June 22, 2016, when the Frank R. Lautenberg Chemical Safety for the 21st Century Act amended TSCA.[30] Although the effectiveness of the amended law remains controversial, the good news is that EPA must now make an affirmative finding on the safety of a new chemical or significant new use of an existing chemical before it is allowed into the marketplace.[31] In addition, new statutory language directs EPA to consider risks to “potentially exposed or susceptible subpopulations.”[32] It remains to be seen how wide courts will allow this net to be cast; for instance, whether a minority of employees suffering from SBS in a space or people with MCS and other chronic conditions that make them more sensitive to indoor air pollution will be considered “susceptible” or “potentially exposed.” Although the words appear promising, the devil will be in the details.

Since the new law was passed, EPA has already finalized a rule to reduce exposure to formaldehyde vapors from certain wood products.[33] In addition, two proposed rules that would restrict the use of two commercial solvents marks the EPA’s first attempt since 1991 to initiate a rulemaking under TSCA Section 6.[34] However, rules promulgated under the reformed TSCA will almost certainly be challenged.

Perhaps TSCA reform means many sources of indoor pollution will finally receive the regulatory attention they deserve. Yet until the government takes action to regulate indoor air, the short-term and long-term concerns of poor indoor air quality will prevent any of us from breathing easy.

[1] Douglas Main, Your Office Air is Killing You, Newsweek (June 2, 2016, 6:10AM), http://www.newsweek.com/2016/06/10/indoor-air-pollution-revolution-465531.html.

[2] See Centers for Disease Control and Prevention (CDC), Asthma Facts: CDC’s National Asthma Control Program Grantees 1, 2 (2013), http://www.cdc.gov/asthma/pdfs/asthma_facts_program_grantees.pdf.

[3] See Main, supra note 1.

[4] Amy Westervelt, How Our Buildings Are Making Us Sick, Forbes (Aug. 8, 2012, 10:02PM), http://www.forbes.com/sites/amywestervelt/2012/08/08/how-our-buildings-are-making-us-sick/#3daf20e045db.

[5] Envtl. Protection Agency (EPA), Indoor Air Facts No. 4 (revised): Sick Building Syndrome 1, 1 (1991), https://www.epa.gov/sites/production/files/2014-08/documents/sick_building_factsheet.pdf.

[6] Id. Building Related Illness (BRI) is the term used when symptoms can be attributed to specific airborne contaminants.

[7] See Jill Neimark, Extreme Chemical Sensitivity Makes Sufferers Allergic to Life, Discover (Dec. 11, 2013), http://discovermagazine.com/2013/nov/13-allergic-life.

[8] Michael T. Pyle, Environmental Law in an Office Building: The Sick Building Syndrome, 9 J. Envtl. L. & Litig. 173, 174 (1994)

[9] Id.

[10] Neal Fann et al., The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment: Chapter 3, Air Quality Impacts, U.S. Global Change Resource Program 70, 79 (2016), https://s3.amazonaws.com/climatehealth2016/high/ClimateHealth2016_03_Air_Quality.pdf.

[11] Id. Notably, no one knows how significant VOC emissions from televisions, media players, or gaming devices are, as no study has examined this to date. Andris, infra note 16, at 1955.

[12] Joshua Rapp Learn, How Climate Change Could Make Office Work Even Unhealthier, Smithsonian Mag. (May 2, 2016), http://www.smithsonianmag.com/science-nature/how-climate-change-could-make-office-work-even-unhealthier-180958815/?no-ist.

[13] Veena Singla, Not just Dirt: Toxic Chemicals in Indoor Dust, Nat. Resources Def. Council (Sept. 14, 2016), https://www.nrdc.org/resources/not-just-dirt-toxic-chemicals-indoor-dust.

[14] Envtl. Protection Agency (EPA), Indoor Air Pollution: An Introduction for Health Professionals 1, 13 (2015), https://www.epa.gov/sites/production/files/2015-01/documents/indoor_air_pollution.pdf.

[15] Flame Retardants, Nat’l Inst. of Envtl. Health Sci. (NIEHS), https://www.niehs.nih.gov/health/topics/agents/flame_retardants/index.cfm (last visited Oct. 15, 2016).

[16] James M. Andris, Jr., Adopting Proactive Standards to Protect Americans in Indoor Environments: Volatile Organic Compound Emissions Regulation, 56 Wm. & Mary L. Rev. 1947, 1974 (2015). In addition, studies link our low-level, daily exposures (via air or otherwise) to chemicals dangerous to hormone function to a variety of diseases such as obesity, autism, and ADHD. NYU Langone Medical Center, Exposure to chemicals dangerous to hormone function burdens Americans with hundreds of billions in disease costs, Sci. Daily (Oct. 18, 2016), www.sciencedaily.com/releases/2016/10/161018103657.htm. Alarmingly, these low-level exposures alone cost Americans more than $340 billion per year in disease costs and lost productivity. Id.

[17] Main, supra note 1.

[18] See supra note 14.

[19] Andris, supra note 16, at 1955

[20] Andris, supra note 16, at 1961. See also Regulatory Information by Topic: Air, Envtl. Protection Agency (EPA), https://www.epa.gov/regulatory-information-topic/regulatory-information-topic-air (last visited Oct. 15, 2016); Volatile Organic Compounds’ Impact on Indoor Air Quality, Envtl. Protection Agency (EPA), https://www.epa.gov/indoor-air-quality-iaq/volatile-organic-compounds-impact-indoor-air-quality (last visited Oct. 15, 2016) (“No federally enforceable standards have been set for VOCs in non-industrial settings.”).

[21] Indoor Air Quality, Occupational Safety and Health Admin. (OSHA), https://www.osha.gov/SLTC/indoorairquality/ (last visited Oct. 15, 2016).

[22] Andris, supra note 16, at 1962.

[23] Main, supra note 1 (describing sensor technology).

[24] See generally Lynn Bergeson, Law & Policy of Products Regulation (ELI Summer School, 2016), Envtl. Law Inst. (ELI) (July 28, 2016), http://www.eli.org/events/law-policy-products-regulation-eli-summer-school-2016.

[25] See, e.g., The Toxic Substances Control Act Frequently Asked Questions, Bergeson & Campbell PC, http://www.lawbc.com/knowledge-resources/faq-tsca/ (last visited Oct. 21, 2016).

[26] Lynne Peeples, Toxic Chemical Bill Championed By Industry, Chided by Children’s Health Advocates, The Huffington Post (May 5, 2014), http://www.huffingtonpost.com/2014/05/02/toxic-chemical-reform-congress-children-health_n_5247283.html; Bill Chameides, In Search of the Toxic Five, Duke Nicholas Sch. of the Env’t: The Green Grok (June 13, 2011), http://blogs.nicholas.duke.edu/thegreengrok/insearchoftsca5/.

[27] See Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1214-15 (5th Cir. 1991) (holding that EPA failed to give adequate weight to TSCA statutory language requiring it to promulgate the least burdensome, reasonable regulation required to adequately protect the environment).

[28] Asbestos: Think again: Asbestos is still not banned, Envtl. Working Grp. (March 4, 2004), http://www.ewg.org/research/asbestos-think-again/asbestos-still-not-banned.

[29] See, e.g., Why isn’t asbestos banned in the United States?, Asbestos Nation (2016), http://www.asbestosnation.org/facts/why-isnt-asbestos-banned-in-the-united-states/ (last visited Oct. 15, 2016); Mark Scialla, It could take centuries for EPA to test all the unregulated chemicals under a new landmark bill, PBS Newshour (June 22, 2016), http://www.pbs.org/newshour/updates/it-could-take-centuries-for-epa-to-test-all-the-unregulated-chemicals-under-a-new-landmark-bill/.

[30] See generally The Frank R. Lautenberg Chemical Safety for the 21st Century Act, Envtl. Protection Agency (EPA), https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act (last visited Oct. 21, 2016).

[31] Highlights of Key Provisions in the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Envtl. Protection Agency (EPA), https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/highlights-key-provisions-frank-r-lautenberg-chemical (last visited Oct. 21, 2016).

[32] See, e.g., Toxic Substances Control Act §3, 15 U.S.C.A. § 2602(12) (West 2016). See also 15 U.S.C.A. § 2604(a)(3)(A) (defining term as a “group of individuals within the general population identified by the Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.”).

[33] See Formaldehyde Emission Standards for Composite Wood Products, Envtl. Protection Agency (EPA), https://www.epa.gov/formaldehyde/formaldehyde-emission-standards-composite-wood-products-0 (last visited Oct. 15, 2016).

[34] Pat Rizzuto, Solvent Controls Being Reviewed Under Revived EPA Authority, Bloomberg BNA (Oct. 25, 2016), http://bit.ly/2fhIatt.

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