Toxic content

AIA’s new push for materials transparency might help the planet, but it could also put design firms up against the wall should cases go to court.

On April 8, 2016, the American Institute of Architects announced the release of its new white paper on “Materials Transparency and Risk,” part of an AIA effort to equip the entire profession with what they call “consensus-driven guidance” on the issue of toxins and other health hazards in building materials. AIA calls this “an issue of critical importance” to the profession, its suppliers and clients. “Whether in politics or in building design, transparency is an increasingly necessary element of modern life,” said AIA CEO Robert Ivy. “And when it comes to materials – the very substances of our built environment – it’s more important than ever for architects to be able to communicate openly about what they contain.”

The white paper is the product of more than a year of effort by the AIA’s Materials Knowledge Working Group, pursuant to a Position Statement approved by the AIA Board of Directors in December of 2014. In that statement, the AIA recognized that “building materials impact the environment and human health before, during and after their use,” and it encouraged architects “to promote transparency in materials’ contents and in their environmental and human health impacts.”

The white paper, Materials transparency & risk for architects: An introduction to advancing professional ethics while managing professional liability risks, was created by materials specialists but is aimed at all architects. It provides a backdrop on the necessity for materials transparency and the steps architects should be taking to bring about change, promote openness, and increase collaboration between themselves, their suppliers and their clients.

This initiative has resulted in a series of published Health Product Declarations, which are product data sheets listing all of the hazardous contents of the material. The HPDs are a voluntary disclosure by the manufacturer, not required by law. Some feel that if architects require an HPD for any product they specify, then the building material manufacturers and sales reps will either have to disclose the contents or risk not being specified.

If the HPD shows a toxic content, this disclosure might pressure manufacturers to change the contents, a voluntary way to get bad stuff out of building materials, even though not required by law. Some question whether this is a proper role for the AIA to take, and whether this should be driven instead by a governmental agency, like the EPA. But, the AIA is never shy about taking the lead on environmental initiatives. This time, however, many lawyers are wondering if the Institute has helped the planet but hurt their members.

As for the risks, they are obvious. When an architect specifies a material that has volatile organic compounds, say for a new elementary school, hospital or day care center, and there is a published HPD alerting of the contents, one of two theories might be argued in a lawsuit against the design firm. First, that the designer “knowingly” specified a hazardous material, thereby exposing the building occupants to a health risk, or that the architect was negligent in not checking the product’s HPD before specifying it. We can only imagine the cross-examination and deposition questioning of architects in either scenario, creating a troublesome situation.

Perhaps ignorance is bliss in this case, and not knowing the content is better than having all of this information in the public domain. What is now in the public domain, however, is downright scary. As an example, the HPD for a ceiling tile lists cancer-causing contents. The question posed to the architect might be: “So, let me understand. You knew that this ceiling tile had cancer-causing components, and yet you specified its installation throughout my client’s building, is that correct, sir?” These are no-win questions, to which a “yes” or “no” answer creates potential liability.

While the AIA has provided sample disclaimer language, not court-tested at this point, what about the 95 percent of contracts that do not have AIA language in them? Will the standard of care now require an architect to review all materials specified for the HPD disclosures, and only specify those that don’t have a “cancer” box checked on the form? Only time will tell, but more than a few attorneys and insurers are concerned that the AIA’s planet saving motives will result in increased claims and liability for its members.

The AIA’s white paper states: “While acknowledging the potential benefits of transparency, some architects and legal counselors have raised concerns about the possibility of increased exposure to legal liability coming from seeking and retaining information on product contents. One common concern is that a building occupant may claim to have been injured by a substance contained in a product, and may assert that the architect was aware of the presence of the allegedly injurious substance and had a duty to avoid specifying products containing that substance.” The paper goes on to say, candidly, “With limited information about the risk of new forms of transparency information, and with legal precedent not yet established, there are legitimate concerns.” The paper then goes on to discuss mitigation strategies and solutions.

The AIA Contract Documents Committee has prepared model contract language to limit the risk for architects who undertake materials transparency initiatives. The new language is in Section 20 of the AIA Guide for Amendments to AIA Owner-Architect Agreements Document B503-2007. The question is whether architects will want to use this lengthy disclaimer as a red-lined revision to the AIA forms, and whether an owner will accept it. The answer is “no” or “doubtful” to both questions.

The AIA Board’s Position Statement “encourages architects to promote transparency in materials’ contents and in their environmental and human health impacts.” The white paper goes a step further than encouragement, calling this an “ethical imperative” and saying that this “strong urging” to AIA members is supported by the AIA Code of Ethics charge that “AIA Members should be environmentally responsible and advocate for sustainable building.” Is this an area that the Jefferson Literary and Debating Society should weigh in on? Or is it too late to turn back the HPD tide?

William Quatman, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at bquatman@burnsmcd.com.

Posted in Articles, Environmental + Sustainable Design | September 9th, 2016 by