United states environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Number
9360.3-12
2. Originator Information
Name of Contact Person
S. Maid
Mail Code
Office
OERR/ERD
Telephone Code
3. Title
Response Actions at Sites with Contamination Inside Buildings
4. Summary of Directive (include brief statement of purpose)
This directive transmits guidance on the use of authority under $104(a) of the
Comprehensive Environmental Response/ Compensation, and Liability Act (CERCLA)/
as amended/ to conduct response actions to address releases of hazardous
substances/ pollutants/ or contaminants that are found within buildings.
5. Keywords
Response Actions/ Contamination/ Buildings
3a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number. ''"•' :•)
Yes What directive (number, title)
7. Draft Level
A-SignedbyAA/DAA
8 - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
^a^^^^^/^^
10. Name and Title of Approving Official '
Henry Longest/ II
Date
i ij . |
Date
8/25/94
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWE" O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9360.3-12
TITLE: Response Actions a*t Sites with Contamination
Inside Buildings
APPROVAL DATE: August 12, 1993
EFFECTIVE DATE: August 12, 1993
ORIGINATING OFFICE: OERR/ERD
m FINAL
D DRAFT
STATUS:
[ ] A- Pending OMB approval
[ ] B- Pending AA-OSWER approval
[ ] C- For review &/or comment
[ ] D- In development or circulating
REFERENCE (other document*):
headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
121993
OFFICE OF
SOLIOWASTE AND EMERGENCY RESPONSE
OSWER Directive 9360.3-12
MEMORANDUM
SUBJECT: Response Actions at Sites with Corytamjfiation Inside
Buildings
FROM:
TO:
Henry L. Longest II, Director c-
Office of Emergency and Remedial
nse
Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, IX.
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
PURPOSE
This directive transmits guidance on the use of authority
under §104(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, to conduct
response actions to address releases of hazardous substances,
pollutants, or contaminants that are found within buildings. Use
of this guidance may assist Regional Decision Teams (RDTs) in
implementing early actions under the Superfund Accelerated
Cleanup Model (SACM).
BACKGROUND
CERCLA §104(a) provides EPA with the authority to conduct
response actions whenever there is a release or threat of release
of a hazardous substance, pollutant, or contaminant into the
environment. Section 101(22) of CERCLA defines "release" to
include "any spilling, leaking, pumping, pouring, emitting... or
disposing into the environment..." CERCLA §101(8) defines
"environment" to include "navigable waters,...any surface water,
ground water, drinking water supply, land surface or subsurface
Printed on Recycled Paper
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strata, or ambient air." A discharge of a hazardous substance,
pollutant, or contaminant that remains entirely contained within
a building is not a "release" under CERCLA unless it subsequently
enters the environment. It may be a threatened release and,
thus, fubject to CERCLA response authority (50 FR 13462, April 4,
1985).
There are currently a number of sites throughout the nation
where buildings are contaminated with hazardous substances,
pollutants, or contaminants, and where the release or threat of
release of these substances may pose a substantial threat to
human health. However, CERCLA expressly limits, under
S104(a) (3), any response actions taken in response to a release
or threat of release:
.
of a naturally occurring substance in its unaltered
form, or altered solely through naturally occurring
processes or phenomena, from a location where it is
naturally found;
.
from products which are part of the structure of, and
result in exposure within, residential buildings or
business or community structures; or
.
into public or private drinking water supplies due to
deterioration of the system through ordinary use.
CERCLA S104(a) (3) therefore limits responses in certain
situations, such as releases of radon or asbestos from building
products or from in situ natural sources, but S104(a) (4),
entitled Exception to Limitations, identifies specific circum-
stances that, if present, would allow CERCLA response in such
situations.
Removal actions involving substances or releases that are
subject to statutory exclusions or limitations in CERCLA are
explicitly listed in OSWER Directive 9360.0-19, "Guidance on
Non-NPL Removal Actions Involving Nationally Significant or
Precedent-setting Issues" (March 3, 1989). A copy of the
Guidance is attached to this directive. As noted in the
Guidance, written concurrence must be received from Headquarters
Drior to formal approval of the Action Memorandum by_the Regional
Administrator (RA), except in situations where a response must be
initiated within hours (i.e., except in true emergency
situations) .
'Note that the statute defines the term "release" to mean a
release of a substance "into the environment." However, for
purposes of clarity, this memorandum distinguishes between a
"release," which may be indoors or into the environment, and a
"release into the environment."
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Responses to indoor releases, such as at a contaminated
chemical processing facility, are not expressly limited in
CERCLA, and response actions may be appropriate in such
situations w~ere there is a release or threat of release into the
environment. Such responses, however, have the potential of
being nationally significant or precedent-setting because
response to indoor contamination is not the primary focus of
CERCLA, and because it may be difficult to show that a release or
threat of release from indoor contamination poses a threat to
public health or welfare or the environment.
OBJECTIVE
This directive clarifies that CERCLA Sl04 authority should
be used only when there is a release or threat of release of a
hazardous substance (and, if there is also a finding of imminent
and substantial endangerment, of a pollutant or contaminant) into
the environment, and only when such a release or threat of
release poses a hazard to public health or welfare or the
environment. If it can be shown that there is a release or
threat of release into the environment, a SACM early action
responding to indoor contamination related to that release or
threat of release may be taken under certain circumstances as
defined below. Of course, any early actions undertaken pursuant
to this directive must be conducted in accordance with the NCP.
IMPLEMENTATION
If the indoor contamination involves one of the three
scenarios specified in CERCLA Sl04(a) (3), as identified above, a
response action may be taken pursuant to the exceptions of
Sl04(a) (4) only if all of the following three criteria are met:
.
there must be a release or threat of release of a
hazardous substance, pollutant, or contaminant into the
environment;
~It should be clarified that in CERCLA SlOl(22) the phrase
"release into the environment" refers to the location of the
release itself; the phrase does not address the location of the
hazard that the release poses. Thus, response actions under the
National oil and Hazardous Substances Pollution Contingency Plan
(NCP) to remedy, for example, radium wastes that have been
disposed of in subsoil, which may in turn cause indoor hazards
from migration and accumulation of radon gas in nearby homes, are
not excluded under CERCLA Sl04(a) (3), whereas radium wastes
incorporated into building materials and used in a structure may
be excluded.
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.
the release must constitute a public health or
environmental emergency, and no other person with the
authority and capability to respond to the emergency
will do so in a timely manner; and
Headquarters must assess the national significance and
precedent-setting nature of the response and concur in
the response action.
.
Regardless of whether or not a potential response action
involving indoor contamination is addressed explicitly in CERCLA
Sl04(a) (3), several steps should be followed by Regional response
personnel prior to initiating a response action. These steps are
summarized below and illustrated in Figure 1.
Determination of a Release or Threat of Release into the
Environment
To appropriately use CERCLA authority, there must be
adequate documentation to show that the indoor contamination
results in a release, or a threat of release, of a hazardous
substance, pollutant, or contaminant into the environment. (In
addition, for releases involving pollutants or contaminants,
there must also be a determination of an imminent and substantial
endangerment.) The issue of whether a release or threat of
release into the environment exists, however, can be ambiguous
when addressing sites with indoor contamination or where
contamination stems from the structure itself. Regardless of the
nature of the indoor contamination, however, a release or threat
of release must be substantiated prior to taking response action.
In general, authority to respond to a release or threat of
release from a building exists if at least one person or the
environment outside of the building may be exposed to the
release. For example, if the hazardous substance, pollutant, or
contaminant. can migrate through a window or through the
foundation or building structure into the soil, creating
exposures to persons or hazards to the environment, a sufficient
basis may exist to show that there is a threat of release into
the environment requiring the cleanup of the interior of the
building. It also may be possible to show that there is a threat
that contaminated articles, clothing, or even parts of the
structure itself may be inadvertently removed from the building
and, thus, a release or threat of release of a hazardous
substance, pollutant, or contaminant may exist.
Another situation involving indoor contamination may be
contamination that. is the direct result of a release into the
environment from a non-natural source that migrates into a
building or structure. For example, contamination in a yard may
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Figure 1
INDOOR CONT AMINA TION: STEPS FOR ACTION
Is there a release or threatened release
into the environment of a hazardous
substance, pollutant, or contaminant.?
NO
YES
. Is there a p
environmental
YES Is the response expressly limited in NO
CERCLA ~104(a)(3)? I
(A) Naturally occurring substances in
their unaltered fonn;
, (B) Products that are pan of the ,
structure of a building; or
ublic health or (C) Deterioration of public or private
emergency drinking water supplies.
Is there a
threat to public
health or welfare or the
environment that can be
documented?
NO
NO
AND
. Can no other person
. respond in a timely way?
YES
~ Must emergency action be initiated ~
, immediately? ....
YES NO
,j, ,j,
YES
Initiate
Response
Action Prior to
. HQ Consultation
Consult With HQ
Prior To
Response Action
No Response
Action Under
CERCLA
. If responding to a release of a POllulanl or cOnJaminanl, there must be a showing
of immiMnJ aNI substanlial danger to the public health or welfare.
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be tracked into a building on the feet of the residents or
workers, or may migrate into the building through an open window
or basement walls. In this situation, a release into the
environment is occurring and has caused a building to become
contaminated with the hazardous substance, pollutant, or contami-
nant.
Determination of Need to Respond
Once it has been determined that there is a release or
threat of release into the environment, the nature of the public
health or environmental threat resulting from the release should
be established. Depending upon whether the release situation is
expressly limited in CERCLA ~104(a) (3), the standard is slightly
different.
.
For responses to releases expressly limited in CERCLA
~104(a) (3) (e.g., indoor releases of radon, asbestos,
or a deteriorating drinking water system), there must
be a finding that the release is causing a public
health or environmental emergency and no other person
with the authority and capability to respond to the
emergency will do so in a timely manner.
For response actions that are not specifically limited
in CERCLA ~104(a) (3), the release should pose a threat
to public health or welfare or the environment; an
emergency situation does not need to exist.
.
Consultation
Once it has been determined that a CERCLA response action
may be necessary, in most cases, Regional offices should consult
with Regional Coordinators at Headquarters (pursuant to OSWER
Directive 9360.0-19, March 3, 1989) to determine whether CERCLA
authority can and should be used to respond to the problem.
Headquarters will assist the RDT in considering the national
significance and precedent-setting nature of the problem.
Generally, written concurrence from the Office Director, OERR,
must be received prior to formal approval of the Action
Memorandum by the RA.
The one exception to this rule is a situation where response
action must be initiated immediately, and there is no time to
discuss the situation with Headquarters. In such compelling
cases, Regions may initiate a response action without Head-
quarters concurrence; however, only those actions that are
necessary to mitigate the emergency or stabilize the site should
be taken. The appropriate Regional Coordinator should then be
informed of the response on the next working day following
initiation of the emergency action.
Attachment
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