UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, D.C. 20460
                              AUG 121993
                                                      OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
                                             OSWER Directive  9360.3-12

  MEMORANDUM

  SUBJECT:  Response Actions at Sites with Contamination Inside
            Buildings

  FROM:     Henry L. Longest II, Director /s/
            Office of Emergency and Remedial Response

  TO:       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
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                                 - 2 -

  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,
  subject to CERCLA response authority  (50 FR 13462, April 4,198s).1


       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 §104 (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 §104(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 §104(a)(4), entitled
  Exception to Limitations, identifies specific circumstances 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 prior 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).
                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 where
  there is a release or threat of release into environment.2 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 §104 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 §104(a)(3), as identified above, a
  response action may be taken pursuant to the exceptions of
  §104 (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;
         2It should be clarified that in CERCLA §101(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 §104 (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
  §104 (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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  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 contaminant.

  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 Headquarters
  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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                                                 Figure 1
                           INDOOR CONTAMINATION:  STEPS FOR ACTION
                                   Is there a release or threatened release
                                    into the environment of a hazardous
                                   substance, pollutant, or contaminant*?
                                                                NO
                                              YES
                            YES
NO
•  Is there a public health or
  environmental emergency

AND

•  Can no other person
  respond in a timely way?
 Is the response expressly limited in
      CERCLA §104(a)(3)?

(A) Naturally occurring substances in
   their unaltered form;

(B) Products that are part of the
   structure of a building; or

(C) Deterioration of p"Mic or private
   drinking water supplies.
                                                                     NO
                                        Is there a threat to public
                                         health or welfare or the
                                        environment that can be
                                             documented?
NO
               YES
                                                                            YES
                                    Must emergency action be initiated
                                             Immediately?
                                      YES
                                                        NO
                         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 pollutant or contaminant, there must be a showing
    of imminent and substantial danger to the public health or welfare
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