1993 EPA Memo Clarified CERCLA Jurisdiction For Indoor Contamination

Since vapor intrusion started to come into focus a decade ago, environmental consultants have been debating if vapor intrusion was covered by the standard phase 1 or needed to be specifically added to the phase 1 scope of work. This is not an academic discussion but a real concern to property owners and lenders who are now concerned that past phase 1 reports that did not evaluate vapor intrusion may not satisfy the “all appropriate inquiries” requirement for establishing one of the CERCLA landowner liability protections.

Part of the confusion was that the ASTM E1527 phase 1 standard identified indoor air quality as a non-scope consideration.  The standard, in turn, appears to have been confused by the CERCLA definition of “Release”. The definition provides that releases resulting in “exposures to persons solely within a workplace with respect to a claim which such persons may assert against the employer of such persons“.  Consultant and many lawyers focused on the first portion of the exclusion but overlooked the “with respect to a claim which such person may assert against the employer of such persons”.  This latter clause was intended to apply to workers comp claims. Congress did not want to allow a worker to “double dip” by filing a workers comp claim and then also filing a CERCLA lawsuit for personal injury against its employer.

In 1983 and 1985, EPA explained the meaning of this exclusion when it promulgated its CERCLA notification rule. EPA explained then that the exclusion was a relic from the 1978 legislative draft of CERCLA that had provided a remedy for personal injury. When CERCLA was finalized in the dying days of 1980, the remedy for personal injuries was deleted by in the rush to finish the bill it appears that the exclusion was inadvertantly left in the law.

In 1993, EPA issued guidance describing when CERCLA authority may be used for indoor contamination. The guidance indicates that EPA could respond to releases into the environment that come into a building or releases within a building that may escape into the outdoor or subsurface environment such as through broken windows (think of asbestos), on workers clothing (think of dust) or through flooring. 1993 EPA Memo

In a 1986 guidance document, EPA also indicated that it could respond to a methane hazard under its section 104 authority to take emergency actions in response to releases of pollutants or contaminants that posed an imminent danger to human health or the environment. This memo emphasized, though, that EPA would not be able to recover its costs under section 107 since methane is not a hazardous substance. 1986 EPA Methane Memo

Hindsight is always 20-20. When these memos were written, regulators were not aware of the extent that the vapor intrusion pathway could result in exposures. The revised version of E1527 will clarify that the vapor intrusion pathway is like any other contaminant pathway and the potential for vapor intrusion should be evaluated addressed as part of a phase 1. From a practical standpoint, this will primarily affect properties where there are off-site releases since presumably an on-site release would be flagged as a REC.


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