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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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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