Last month I wrote about a handful of firms that have sent threatening letters to arbitrarily chosen building product manufacturers demanding that they develop Health Product Declarations or face serious consequences, including removal of products from future project specifications. The rationalization used in the letters is that architects must know the chemical content of a product to make buildings greener and ensure the good health of building occupants.

One firm states, “We encourage you to engage [in] this initiative so we as partners in the building industry may deliver healthier buildings to owners and end users.” Another writes, “… we have been evaluating our specifications in order to endeavor to identify and eventually eliminate a select group of chemicals that to our knowledge are known or suspected of being hazardous.” And another says, “To understand how our decisions affect human health and the environment, we are asking for you to share information about product contents and their associated health hazards.”

Why the authors of these letters do not recognize the obvious potential liability in writing such things is a real mystery to me. Since when did architects become responsible for ensuring occupant health resulting from exposure to building material ingredients? And since when did architects acquire the knowledge and skill necessary to be able to do such a thing? What do the legal eagles heads think about this?

Send In The Attorneys

As I illustrated in last month’s article, it is erroneous to claim, or even imply, that HPDs provide the necessary information for anyone to predict with accuracy a product’s impact on human health or sustainability. It turns out that many architecture firms’ in-house legal counsel share that opinion. In a recent BuildingGreen.com-sponsored webcast titled “Increased Transparency … Increased Liability for Designers?—A Legal Roundtable for Architects Using HPDs and Other Transparency Tools,” four in-house architecture firm attorneys were asked if architects increase their exposure to liability in asking manufacturers to produce HPDs. The short answer was: It depends on what happens after the information is acquired.

Brodie Stephens, general counsel for Perkins+Will, gave his answer as follows. “If the architect makes a statement that some party relies upon, potentially to their detriment, then there is the potential for liability.”

Aren’t those threatening letter statements exactly what Stephens is speaking to? If an architecture firm makes statements about needing to evaluate building material ingredients for the purpose of evaluating and ensuring building occupant health, and for some reason or another, a building occupant gets sick, shouldn’t this consequence be something of concern to that firm? According to all four attorneys on the webcast, the answer is a unanimous YES!

R. Craig Williams, AIA, Esq. chief legal officer for HKS, Inc. made it clear that architects are not responsible for the health of building occupants with regard to what chemicals may or may not be in building products and materials. He went on to point out the obvious, that architects are not medical doctors, chemists, or toxicologists and are not licensed or hired to perform those services.

He states, “In not asking for this information, I have not increased my liability or exposure. In asking for the information, be careful what you ask for! Once you get it you have to know what to do with it. I don’t believe most architects, maybe no architects, have the knowledge, skill and training to know what to do with it.”

Bart Stasa, PE, Esq. chief legal officer for SmithGroupJJR agreed with Williams and added that in asking for this information, and then doing nothing with it, or not following through on what was stated would be done with it, opens the door for potential liability exposure. Williams also said that if an architecture firm starts down the road in dealing with HPDs, it can’t just do it half way. It has to go all the way, developing the skills and knowledge necessary to carry forward with the undertaking. In addition to having the necessary skills to conduct an evaluation, “going all the way” to me means that a firm would need to ask for this information for ALL products specified for use in the building, not just a small handful of materials.

An Alternative To HPDs?

A Health Product Declaration requires only that hazardous, or potentially hazardous, chemicals used in the development of a building product be disclosed. It does not offer any information about whether or not any of the chemicals actually pose any risk to human beings in the product’s final form and placement in a building. The lists required by the HPD to be used in identifying hazardous ingredients are many, and many of the things on these lists pose little or no risk to building occupants in the finished product.

One of the required HPD lists defines clay, plaster, fiberglass and western red cedar as hazardous. Many of the lists include ingredients that are common to many building materials such as titanium dioxide (in roofing membranes and paint), formaldehyde (in insulation, plastic laminate, and naturally occurring in wood products), and urethane (found in sealants and high performance coatings). But none of these ingredients or materials present a risk of exposure to building occupants. People are not being harmed standing on roofs, leaning against painted walls, or sitting on a western red cedar deck. The use of the word “health” in HPD is grossly misleading.

And this is the main reason many manufacturers have flatly reject the “invitation” to produce an HPD. In response to this, the Resilient Floor Covering Institute, an organization that includes member producers of linoleum, rubber, vinyl, carpet, wood, laminate and ceramic tile flooring, have introduced what they consider a much better transparency tool, called a Product Transparency Declaration.

Officially launched October 2013 as an alternative to HPDS, the PTD will be developed through the ANSI process by a balanced group of stakeholders in an open, consensus-based process. The first draft of the PTD provides an informative outline of the direction it intends to go, differing from an HPD in several ways:

• PTDs will not require the use of GreenScreen, another under-developed, non-consensus-based program.
• PTDs will use a list of six authoritative hazardous chemicals, instead of the 30 plus lists required by HPDs—many not recognized as authoritative. The current proposed list includes the following:
• IARC—International Agency on the Research of Cancer Terminology.
• OSHA—Occupational Safety and Health Administration Carcinogen List
• Prop 65—California Proposition 65, Known to Cause Cancer or Reproductive Toxicity
• REACH—Substances of Very High Concern—Candidate List of Substances of Very High Concern.
• PTDs go a step beyond HPDs in that they will address actual exposure risks for chemicals in the final product or material—telling the reader, for example, that the formaldehyde in the wood door is not a risk to human health, and does not require a warning label.

Because LEED allows undefined product declarations to be used in lieu of HPDs, it is anticipated that PTDs will provide manufacturers another alternative in helping clients and architects meet the new materials and resources LEED credits. The RFCI invites any product manufacturer to use its emerging standard as an alternative to HPDs, explaining that the PTD is not limited to any particular product or material.

Conclusion

It remains to be seen how all this will play out among designers, owners and throughout the industry. The aggressive, almost militant, behavior of some of those demanding more transparency reminds me a little of the Occupy Wall Street movement. Mad as hell and not afraid to tell you, occupiers ultimately could not articulate what it was they wanted, or how they proposed to solve the issues that so upset them.

While striving for greater transparency is something that nearly everyone will agree with, coming up with the why and how seems much more difficult. Perhaps PTDs will be easier for manufacturers to produce than HPDs, but I question whether or not it will be any better a tool to evaluate a product’s health impact. I also don’t think that PTD will solve the liability issue that in-house attorneys have identified in asking for HPDs.

To avoid exposure to unwanted liability, architects should not attempt or agree to evaluate building materials for occupant health. If the owner wants to see HPDs, or PTDs, or even MSDSs, the architect would be better off transmitting that information directly to the owner, without review, and letting the owner make the call about what goes into the building, and what does not.