For years, lawyers and environmental consultants have puzzled over the meaning of the indoor air exclusion of CERCLA. The definition of release excludes any releases which (1) results in exposure to persons solely within a workplace and (2) with respect to a claim which such persons may assert against their employer.
This was a puzzling provision since it refers to exposure to persons yet CERCLA does not provide any remedy for personal injury. Over time, the second clause of the exclusion was ignored so that many consultants came to believe that indoor was not covered by a phase 1 unless the client specifically requested such coverage. Indeed, ASTM E1527 provides that indoor air quality along with radon, lead-based paint and asbestos are non-scope items.
Adding to the confusion is that ASTM E1527 also provides that a recognized environmental condition can include releases into building structures. The uncertainy over the indoor air exclusion was largely ignored until EPA and state remedial programs began focusing on vapor intrusion. Now that vapor intrusion is increasingly becoming a popular tool for toxic tort lawyers, environmental consultants are growing concerned that they may become subject to malpractice actions or breach of contract actions for failing to assess VI during their phase 1 reports.
While doing research on my upcoming article "Playing Poker With Pollution" which calls for revising the CERCLA reporting obligations and sampling of RECs for owners to satisfy their AAI obligations, I came across language in the preamble to the original section 103 reporting obligations that appears to shed light on the meaning of the indoor air exclusion.
According to EPA, the indoor exclusion was a relic of an earlier House bill that had contemplated that CERCLA would provide a remedy for personal injury. Apparently this section was left in the legislation after Congress decided to drop the provision providing for a remedy for personal injury due to exposure to releases of hazardous substances. This also explains the second clause of the exclusion referring to workers compensation claims. The old bill would have provided relief to person injured in the workplace from releases of hazardous substances unless they could file a workers compensation claim to avoid duplicate claims.
So, the answer to the decades-long answer is that releases of hazardous substances into indoor air should be covered by phase 1 reports. Of course, whether the applicable standard is the OSHA PELs or levels established for state remedial programs is a discussion for another post.
This was a puzzling provision since it refers to exposure to persons yet CERCLA does not provide any remedy for personal injury. Over time, the second clause of the exclusion was ignored so that many consultants came to believe that indoor was not covered by a phase 1 unless the client specifically requested such coverage. Indeed, ASTM E1527 provides that indoor air quality along with radon, lead-based paint and asbestos are non-scope items.
Adding to the confusion is that ASTM E1527 also provides that a recognized environmental condition can include releases into building structures. The uncertainy over the indoor air exclusion was largely ignored until EPA and state remedial programs began focusing on vapor intrusion. Now that vapor intrusion is increasingly becoming a popular tool for toxic tort lawyers, environmental consultants are growing concerned that they may become subject to malpractice actions or breach of contract actions for failing to assess VI during their phase 1 reports.
While doing research on my upcoming article "Playing Poker With Pollution" which calls for revising the CERCLA reporting obligations and sampling of RECs for owners to satisfy their AAI obligations, I came across language in the preamble to the original section 103 reporting obligations that appears to shed light on the meaning of the indoor air exclusion.
According to EPA, the indoor exclusion was a relic of an earlier House bill that had contemplated that CERCLA would provide a remedy for personal injury. Apparently this section was left in the legislation after Congress decided to drop the provision providing for a remedy for personal injury due to exposure to releases of hazardous substances. This also explains the second clause of the exclusion referring to workers compensation claims. The old bill would have provided relief to person injured in the workplace from releases of hazardous substances unless they could file a workers compensation claim to avoid duplicate claims.
So, the answer to the decades-long answer is that releases of hazardous substances into indoor air should be covered by phase 1 reports. Of course, whether the applicable standard is the OSHA PELs or levels established for state remedial programs is a discussion for another post.
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