Defendant argued EPA had no authority to perform removal action involving plating lines where the release results in exposure exclusively within a workplace. Section 9601(22)(A) excludes from the statutory definition of release "any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons".
The court ruled that Saporito could not benefit from this exclusion because this case did not involve a claim by a person against their employer. The court also rejected argument that the "consumer product in consumer use" exception in the definition of "facility" did not apply to electroplating business. US v Saporito, 2011 U.S.Dist. LEXIS 66456 (N.D.Ill. 6/22/11)
Many consultants and clients have mistakenly believed that vapor intrusion is not covered in the standard phase 1 scope of work because of workplace exclusion. In do doing, they have ignored the second half of the clause that limits the exclusion to circumstances where a person has made a claim against its employer. . As a result, the potential for vapor intrusion has frequently not been evaluated.
This clause is actually a relic from a bill that had been considered by the US House of Representatives prior to the passage of CERCLA. That bill would have provided a remedy for personal injury due to exposure to hazardous substances. The workplace exclusion was intended to prevent a double recovery by precluding recovery where the worker had filed a workers compensation claim. The remedy for personal injuries was deleted from CERCLA during the last minute negotiations but the workplace exclusion was inadvertabtly left in legislation that became CERCLA
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