! UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREGION VII

901 NORTH 5TH STREETKANSAS CITY, KANSAS 66101 __

: ^tivttlA LEAD• ••': AJKfi

January 4, 2002 . -,^r(

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Mr. C buck SigersonPresidentOmaha City CouncilOmaha 'Douulas Civic Centerl819FarnamOmaha, Nebraska 68183

Dear Mr. Sigerson:

The United States Environmental Protection Agency ( H P A ) has reviewed the questionswhich you provided via letter dated December 21, 2001. concerning the potential l is t ing of theOmaha Lead site on the National Priorities List (NPL). At a meeting with you and other citycouncil members on December 28. 2001, the EPA committed to providing responses to thesequestions by January 4. 2002. This letter provides the Agenc\ "s response to these questions.Because of the l imited time available in preparing these responses, a few of the responses may bemore general in nature. The questions are listed below followed by the response.

1. Has the EPA determined, in a manner which >vi l l hold up in court, the actualsources of lead in the soil for the proposed designated site? If industrial sites are thesuspected cause (Asarco, for example), can the F.PA name the companies? Once thesource of the lead is determined, can the method of transportation to the current sitebe determined also?

The EPA is investigating the potential sources of the lead contamination in the soils in theOmaha area. This investigation is not complete. If the HPA determines that industrial facili t ieswere responsible for the lead contamination in the soils and these companies satisfy the l i ab i l i t yelements under the Comprehensive Environmental Response. Compensation, and Liab i l i ty Act(CF.RCLA). as amended. 42 U.S.C. § 9600fijfi£fl., then the HPA could name these companies aspotentially responsible parties (PRPs) and ask them to perform any necessary response actions orpay for the performance of the response actions. To date, the HP A has named only one party.ASARCO. Inc. (Asarco). as a PRP for this site, but as mentioned the investigation of potentialsources is ongoing and other PRPs may be identified in the future.

The method of transportation to where the lead contamination has come to be located ispart of the investigation of the lead contamination sources. Methods of transportation for thelead contamination would include airborne emissions from indust r ia l sources, peeling paint fromhouses, and lead from automobile exhaust emissions.

. ^ *RECYCLE i

S00190259SUPERFUND RECORDS

2. If the Omaha .site is listed on theNPL and the EPA remediates the site and deliststhe site, what is the probability that lead will reappear in the soil at a later date?

The EPA is not aware of a continuing release of lead contaminants to the atmosphere inthe Omaha area. Pealing lead-based paint is a known source of potential re-contamination. Paintpealing off of homes that are not properly maintained could re-contaminate the soil immediatelysurrounding the foundation. In most cases, the foundation area is small in comparison to the areaof the entire yard, where contamination is currently found a; many residences.

3. Are the conditions for listing a site the same conditions for delisting a site? In otherwords, can the EPA add other conditions for delisting so as to "keep Omaha on thelist longer?"

The conditions for listing a site on theNPL are different than the conditions for delist inga site. The EPA cannot add conditions for delisting a site from the N'PL. The conditions fordelist ing a site from the NPI. include assuring that all appropriate response actions have beencompleted to address the threat posed by the release of hazardous substances and that the goalsidentified in the cleanup decision document have been met. These conditions are the same for allsites placed on the NPL. It is a goal of EPA to complete all appropriate response actions andremove sites from the NPL as efficiently as possible. The EPA has no interest in keeping sites onthe NPL any longer than necessary.

•4. As a result of full, appropriate remediation of the site, what specific healthimprovements do you expect to see? Can the EPA provide actual health data fromother cities to demonstrate improved health?

The EPA itself does not conduct health studies at any Superfund site. However, theAgency for Toxic Substances and Disease Registry (ATSI)R). in cooperation wi th various stateand local health agencies, can and does conduct health studies at Superfund sites. Some of thesehealth studies have demonstrated that lead soil contamination is a s ignif icant contributor toelevated blood lead levels in children. Summaries of available studies conducted at other leadcontamination sites wil l be provided. A Study of the cleanup in the Joplin. Missouri, area is soonto be released and can be provided upon completion. By doing this cleanup, the EPA expects toreduce the exposure to lead soil contamination, thereby reducing the effects of this s ignif icantexposure pathway on elevated blood lead levels in Omaha.

5. During the December 18, 2001, City Council public hearing, we heard that one ofthe reasons the percentage of children identified with F.BI.s per /ip code decreased,was that Douglas County Health Department tested a larger number of children.We also heard that there may be other reasons, such as the closing of someindustrial sites. If the latter is the reason, then the percentage is decreasing withoutthe city or EPA doing anything. Please comment on why the percentage of EBLs isdecreasing in some targeted zip code areas.

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The data discussed in this question was collected h\ the Douglas Count) HealthDepartment (DCHD). The EPA is not certain of the objectives of this data collection or themethodology used in collecting the data and, therefore, could not accurate!) assess am changesin this data. It seems clear to EPA, however, that even though the overall frequencies may bedecreasing, the frequencies of EBL detections remain much greater in those /ip codes closer tothe former airborne lead emission sources.

6. In coordination with the Nebraska HHS or Douglas County Health Department (orboth), can you supply the raw data used to determine the percentage of EBLs perzip code? Identify the sample size and the number of F.BLs for each of the last ten(10) years.

It is EPA's understanding that separate questions were provided directly to NebraskaHealth and Human Services (HHS). The EPA only obtained summarized data from the DCHDwhich shows the frequencies of EBLs found in each zip code in the county. Figure 3 in thePreliminary Assessment'Site Inspection Report, which was provided to you in earl iercorrespondence, was developed from this data. The EPA would refer you to the Nebraska HHSor DCHD for any additional information about this data.

7. During the December 18lh City Council public hearing, someone noted that there areseveral (possibly 12) Nebraska cities with Superfund cleanups. Are these designatedsites "specific locations" or broad city areas, similar to the nearly 9,000 acresproposed for Omaha? The Omaha proposed area is approximately one-third of thiscity. Is that typical? Can you give other examples of cities w i t h a broad area listed?

The current list of NPL sites includes ten (10) sites in Nebraska. Some of these arespecific facil i t ies while others are larger ground water contamination areas (1 ()'' Street. Hastings.Ogallala. and Waverly Ground Water Contamination). It is not typical to l is t an area as large asthe proposal for the Omaha Lead site, but there are other sites this large. The best example ofcities with a broad area listed on the NPL are the California San Gabriel and San FernandoValley sites. There are other very large sites, some which inc lude entire river valleys, but theseare generally mining sites or ground water contamination sites.

8. Of the EPA Region VII Superfund sites:

a. Please provide a list of all Region VII Superfund sites (if the list is large, onlylist the last 25).

EPA. Region VII has proposed 77 sites for inclusion on the NPL. 72 of which have beenfmali/ed. Eighteen ( 1 8 ) of these sites have been deleted from the NPL. F i f t> five percent ( ° o ) ofthe sites have a final remedy in place. Adequate funding has been received for all of these sitescommensurate with where they are in the Superfund process, to date. If addi t ional information isneeded for any of the Region VII sites on the NPL please let us know.

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h. Identify the date the site was listed, size of the site, and the date dclisted - or abrief description of the current status. Include a comment on its fundingstatus, i.e., fully funded, partially funded, or pending.

Sec question 8.a. above.

c. What guarantees Omaha that we will receive funds to commence (orcomplete) our project? Can you give us a guarantee of funding? If not, anassurance of your efforts at the congressional level to gain funding, if listed?

Since EPA's budgets are determined on a yearly basis, it is not possible to guaranteefunds will be available for an effort that could take a number of years to complete. At siteswhere FPA must use Trust Fund resources to conduct a cleanup. FPA uses a risk-based priorityprocess to decide which new federally funded cleanup projects to start first. To make the mostuse of current resources. FPA phases (partially funds) construction projects, where appropriate,thus maximizing risk reduction at the greatest number of possible sites.

d. If Omaha is listed and work commences, is there a guarantee that it will becompleted, or might we be left at (for example) 60% complete and the projectdelisted?

The site will not be delisted until all appropriate response actions are complete and thecleanup goals are achieved. Response actions at the site wi l l continue un t i l the cleanup goals areachieved and the site can be safely removed from the N'PF.

e. Is there a list of national sites that are on the NPL and wil l likely remain onthe NPL for two decades or longer/permanently?

A list of Superfund sites on the NPL can be found in 40 CFR Section 300 Appendix B.Alternat ively. Superfund's listed sites can also be found at:M-vnr. epa. go\' super fund sites 'npl npl. hfm. Sites remain on the NPL un t i l all appropriateresponse actions are complete and the cleanup goals are achieved. The length of t ime that a sitewil l remain on the NPL is different for each site depending on the nature and extent of thecontamination at that site.

9. \Ve were urged at the December 18th City Council public hearing to seek theGovernor's decisions by mid-January 2002 for NPL listing by January, 22, 2002.Please explain the timing and the consequences of a delay to February or March2002. If NPL listings are done quarterly, is there something significant about thefirst quarter 2002? Since congressional funding is done in FY appropriations,please comment on the possibility of FY 2003 or FY 2004 funding.

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The HP A has all the information needed to propose the Omaha Lead site lor the NPL.The January 2002 update is the earliest opportunity to propose the site lor l is t ing. If thegovernor's concurrence is not received by January 14. 2002. the site cannot be proposed on theJanuary 2002 update. The Governor has requested and been granted an extension until I-'ehruary8. 2002. to respond to the L:PA concurrence letter. The next quarterly update for NPL listing isscheduled in April. This could delay the progress on the site by approximately three months. Fordiscussion on funding, see the response to question 8.c. above.

10. Once a Superfund designation is made, please outline the criteria for delisting(assume the remediation is completed). Are there conditions after remediation thatextend into the future?

See the response to Question 3 which discusses the criteria for deli sting a site from theNPL. The Superfund process requires that a five-year review be performed five years afterimplementation of the cleanup to evaluate the continued protectiveness of the remedial action onall sites where contamination above a level of regulator}' concern is left after remediation iscompleted. Some remedies include institutional controls (K's) which consist of non-engineeringmeasures intended to affect human activities is such a way as to prevent or reduce exposure toha/ardous substances. It is not currently anticipated that IC's would be a significant part of thereined) at this site if soils are removed to health-based cleanup levels. I Io\\ever. someprotections may be necessary for areas of Omaha that may have potential lead contamination inthe soil and are not currently used as residential property, if they were to become residentialproperty in the future.

11. Once a Superfund designation is made, can the city or state request any "stopaction" or "termination" for cause? If so, please explain - are there financialconsiderations should the city or state request such a mid-program termination?Any other consequences?

Once a site is placed on the NPL the EPA would not remove a site from the NPL until allappropriate response actions were taken and the cleanup goals were met. If a c i ty or a statewanted to take over the performance of the response actions un t i l the cr i ter ia for delist ing weremet. the HPA could consider such a proposal. However, the city or the state would then need toprovide assurances (financial and otherwise) that they could complete the appropriate responseactions in a timely and efficient manner.

12. If the Governor accepts the proposed site, is this for soil remediation only? Can theEPA expand their scope and tasking to require other types of cleanup, such as airquality, lead paint in homes, or Other projects beyond the stated scope ofremediating the lead in contaminated soil? Has there been such a case in any otherlocation?

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At this time, the EPA believes that addressing the soil contamination is the only actiontha: is allowable at the Omaha Lead site using the authorities found in CERCI.A. If ne\\information comes to our attention that suggests additional measures must be taken to protecthuman health and the environment. EPA can reassess what the appropriate response actionsshould be at that time.

13. As discussed at the December 18th City Council public hearing, wi l l the EPAentertain the option to exempt the "Gallup/Convcntion Center/Central BusinessArea" from the proposed boundaries, since the area is nearly 100% commercially orindustrially zoned area? If no, please explain.

The EPA is reassessing the current boundaries of the site for NPL l i s t ing purposes anddoes not intend to include the downtown business properties \ \ i t h in the site boundaries. The sitewil l consist of residential properties, child care facilities, schools, and other residential-typeproperties containing concentrations of contaminants that may pose a s ignif icant risk to sensi t ivepopulations, including children and pregnant women (i.e.. apartment complexes). Properties notincluded within this definition, including the downtown business properties you are concernedabout, would not be addressed under the remedial response actions conducted lor th i s site.

14. If the proposed area is listed, are there EPA restrictions on residential and/orcommercial building permits, landscaping, fencing, irrigation projects, etc.?

Listing the Omaha Lead site on the NPL will not i tself impose any restrictions on theproperties within the investigation area. As the cleanup options are considered and the remedy isselected, raised garden beds or similar restrictions may al low a higher health-based clean up levelto be established, thus significantly reducing the overall costs associated with the remedy. Alsosome protections may be necessary for areas of Omaha, that ma\ have potential leadcontamination in the soil and are not currently used as residential property, if they were tobecome residential property in the future. Any such options would be considered with l u l l public-input .

15. Within the Superfund area, would there be any "legal cloud" on the individualproperty titles or any additional disclosure requirements at the t ime of sale becauseof this designation? Using other NPL sites, give examples to prove that there is nosuch "cloud" or stigma!

While there may be obligations understate law to disclose environmental hazards, the-l i s t ing of the Omaha Lead site on the NPL itself will not impose any additional restrictions on theproperties wi th in the investigation area or any additional disclosure requirements.

16. If the prevailing winds are generally north - south and Asarco or (iould are theprimary industrial sources of lead in the soil, what explains the high lead counts inareas west of the Asarco/Gould locations?

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In general, the winds as measured at Eppley Air Field are in the North-South directions.However, the wind can and does come from any direction over the course of several years. Thisexplains the rather broad distribution of surface contamination in the north-south direct ions andthe re la t ively narrow distribution in the east/west directions. A wind rose showing the averagewind speed and direction at Eppley Air Field over the course of nine years (1984 though 1992) isenclosed with this letter.

17. Are the w i n d patterns really north and south, or are they more west to east? SinceNebraska weather patterns are generally west to east, why isn't there lead present inthe areas east of the Missouri River?

The wind patterns are primarily in the north-south directions. However, over the courseof several years, the wind comes from all directions. Please >ee the enclosed wind rose diagram.The reasons why soil lead levels east of the Missouri River arc much lower than the levels \\estof the river are not absolutely clear to the EPA.

18. Might the listing on the NPL result in the EPA filing litigation against anycompany? At this time, can you identify the most likely companies identified as asource of lead contaminants? As a matter of routine, does the EPA pursuecompanies for cleanup funding if the source is proven?

The EPA has an enforcement first policy when addressing the contamination atSuperfund sites. This means that EPA attempts to get those parties responsible for the pol lu t ionto pa\ for the cleanup of the contamination. This site is no different and the EPA is performinginvestigations to collect evidence to determine what panics might be responsible for the- leadcontamination in the Omaha area. To date, the EPA has onh identified Asarco as a PRP for thissite. Further investigations are ongoing and EPA may i d e n t i t y other parties in the future. Theparties identif ied as PRPs for this site will be asked to perform the invest igat ion and cleanup ofthe site contamination. If they refuse, and the site is addressed using federal monies, the F.PAmay pursue the identified PRPs for recovery of the costs incurred at the site.

19. Might the l ist ing on the NPL result in the EPA fi l ing l it igation against the city ofOmaha? Is there a "hold harmless clause" for the city?

Based on all existing information, the EPA has no evidence to indicate that the city ofOmaha would be a liable party under CERCLA for any response actions or costs incurred whenperforming response actions at the site. The EPA has no in ten t ion of pursuing the city of Omahafor any costs or the performance of any response actions for t h i s site at this t ime.

20. If several Riverfront properties have already been environmentally cleaned(Convention Center/Arena property, Gallup property (in progress), former Asarcosite. City Dock area (in near future), might the EPA order additional remediationsince the areas are included in our proposed site boundaries?

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The II?A understands that several Riverfront properties are being addressed by the stateof Nebraska under their voluntary clean up program. The EPA does not envision the need torequire additional remediation at these properties to address the soil lead contamination at thissite. The EPA wil l coordinate with the state of Nebraska to ensure an efficient use of resourcesand eliminate any duplication of effort.

21. Since the soil samples were taken from a distance of four feet from the real propertyto avoid contamination by lead flaking from paint, does this mean that the EPArecognizes that a prime source of ground contamination is lead paint? Whatcan/will be done to alleviate this source of ground contamination in the future? If\ve know that flaking paint is a major source of lead contamination in the soil, howcan we proceed without a plan to make sure this source of contamination does notundo SI00 million of Superfund work?

The EPA believes that flaking lead-based paint does contribute to lead contamination insoil immediately surrounding the foundation of a dwelling. This area is a small t ract ion of thetotal area of a yard available for use of children. Soil contaminated by sources other than paintare also a significant exposure pathway. Soil removals are in i t ia ted when the lead concentrationsin soil away from the influence of lead-based paint exceeds an action level . However, the soilnear the foundation is also removed whenever a soil removal is performed. Re-contamination ofthe foundation area is a potential problem that can be addressed through education of theproperty owner.

22. Although lead does not degrade, does the concentration in the soil dissipate due toerosion, water runoff, etc.? Is the lead, due to its weight, sink deeper into the soil?At what depth is it considered harmless? What is the rate of dissipation, and whereis the lead going? Have there been samples of water wi th higher than permissiblelead levels? Are there any other markers which indicate that lead is show ing up inother places? If yes, where? If no, why not?

Lead tends to bind with clay particles in the soil. Once th is happens, lead is not mobile inthe environment. Because it is immobile, lead does not tend to dissipate or sink beneath thesurface over time. When addressing soil contamination l ike that found in Omaha, the EPAwould remove up to twelve ( 1 2 ) inches of contaminated soil and backf i l l the area with clean f i l l .The EPA believes this would address the risks posed by the lead-contaminated soil . The EPAhas not conducted sampling and analysis of the water at Omaha residences. The EPA's primaryconcern with respect to the Omaha lead site at this time is the presence of unacceptable levels oflead concentrations in the soils in the Omaha area.

23. At the December 18lh meeting, it was revealed that the EPA has already cleanedabout 60 Omaha sites - many of them day care centers. If the EPA is able to cleanup these sites without a NPL listing, why can't they continue to clean up sites just asthey are doing now ? Is the funding for day care sites from the same EPA funding

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source as a Supcrfund cleanup? If the health of the children is of paramountconcern, why demand a NPL listing? Why not just come in and clean the sites?

The HI'A has removed contaminated soil from 1?! day cares and FBI. properties usingour removal action authority. Removal actions are short term in duration and relatively low costactivit ies. The CERCEA statute limits removal actions to one year and two mil l ion dollars. Bothof these l imits have been exceeded and it is necessary for the ( > m u h a Lead site to be put on theNPL in order to access a separate source of funds meant for long term costh sites.

24. Was testing done at Henry Doorty Zoo and the Botanical Gardens? How w ill thislisting affect these areas? Please provide examples from other sites with similarfacilities

The F.PA has tested an area of the Botanical Gardens used for a children's gardeningproject. The results indicate that this area of the Botanical (iardens is safe. The HPA has nottested the Henry Doorly Zoo property.

The risks posed by lead-contaminated soil is direct!) proportional to the amount of timethat a child is exposed to the contamination. Much more exposure would occur to a chi ld fromcontaminated soil in his yard or his day care facility than at a location which the child must payto attend, l ike a zoo. A child may only spend 8-10 hours a year at a /oo while he could spendthat much time in one day in his yard. Therefore, the risks posed by contamination at a zoowould be minimal compared to the risks posed by a residential yard or ch i ld care fac i l i ty .

25. At the December 18th meeting it was revealed that Omaha could he listed on theNPL without the recommendation of the Governor. How many times has thisoccurred in the past? What size areas were involved? What was the ultimatedisposition of these cases? Is the EPA prepared to list Omaha without theGovernor's recommendation?

The CF.RCI.A statute does not require the concurrence of the Governor to place a site onthe NPL. However. I: PA policy requires additional assessment to l is t a site (proposed or f ina l )without the concurrence of the Governor. If the Governor does not concur wi th EPA that a siteshould be listed on the NPL and F.PA believes strongly that the site should be listed, an internalprocess is ini t ia ted. This process allows both the EPA Regional office and the state to presentand support their views on site listing to the Assistant Administrator ( A A ) for the Office of SolidWaste and Emergency Response (OSWER) at EPA Headquarters in Washington. D.C. The AAfor OSWER wil l then make a decision on whether the site should be listed. We are aware ofthree cases where a Governor did not concur on the listing of a site on the NPL. One case, theFox River PCB contamination site in Wisconsin was proposed for l i s t ing o\er the Governor'sobject ion. This site included a large expanse of the Fox River in Wisconsin. The second andthird cases were both in Nevada. The Rio Tinto site in Nevada was not proposed for the NPLwhen the state opposed the l is t ing, but the site is being addressed through an NPL equivalent

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process with the PRPs performing the work. The Governor also objected to the l i s t ing of theAnaconda Yerington site in Nevada, which is a former m i n i n g site, and no decision with regardto l is t ing has been made to date.

Final ly , two other issues have been raised in our discussions that were not presented inthese questions which EPA would like to address. The first issue concerns the potential l i a b i l i t yof lenders with respect to property at a Superfund site, and the second issue concerns thepotential l i a b i l i t y of res ident ia l property owners at a Superfund site.

The potential l iabi l i ty of fenders is specifically addressed in Section 1 0 1 ( 2 0 ) ( E ) ofCHRCI.A. 42 r.S.C. £ %01<20)(E). Section 101(20) of CERCLA provides the definition of an"owner" or "operator" for the purposes of CERCLA. These terms are very important becauseanyone who is an owner or operator of a facility where ha/ardous substances have been releasedcausing the incurrence of response costs can be liable for the costs incurred. Section l O l i Z O n E )excludes lenders from the defini t ion of owner or operator as long as the lender does notparticipate in the management of the facility. Therefore, in general, lenders are not l iable partiesunder the l i ab i l i ty scheme of CERCLA just because they may hold an indicia of ownership toprotect a security interest.

The EPA has a long-standing policy regarding the potential l i a b i l i t y of owners ofresidential property at Superfund sites. A copy of this policy is enclosed. As this policyexplains, the EPA. in the exercise of its enforcement discretion under CERCLA. will not takeenforcement actions against an owner of residential property to require such owner to undertakeresponse actions or pay response costs, unless the residential homeowner's activities lead to arelease or threat of release of ha/ardous substances, resulting in the taking of a response action atthe site. Based upon the facts presently known to the EPA. this policy \ \ou ld apply to theresidential property owners in Omaha.

We hope these response are helpful to your decision-making process. If \ ou have furtherquestions or need additional information do not hesitate to contact Don Bahnke of my staff at( 9 1 3 ) 5 5 1 - 7 7 4 7 .

Sincerelv.

Michael J.JSanuersonDirector, Superfund Division

Attachment A - Summaries of Health Studies at Lead Contaminat ion SitesAttachment B - Summary of Wind Speed and Direction at Eppley Air FieldAttachment C - Policy Towards Owners of Residential Property at Superfund Sites

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cc: The Honorable Mike FaheyState Superfund DirectorNebraska Health and Human ServicesDouglas County Health Department

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ATTACHMENT A

FINAL REPORT PRINTED BY

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICESAGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY

ATLANTA, GEORGIA

BIG RIVER MINE TAILINGS SUPERFUND SITELEAD EXPOSURE STUDY

SUBMITTED BY

MISSOURI DEPARTMENT OF HEALTHBUREAU OF ENVIRONMENTAL EPIDEMIOLOGY

JEFFERSON CITY, MISSOURI

June 1998

This report was supported in partCompensation, and Liability Act trustGrant No. H75/ATH780826 fromPublic Health Service, U.S. Departmi

Comprehensive Environmental Response,ide<3 to the Missouri Department of Health, under

;for Toxic Substances and Disease Registry,jalth and Human Services.

ABSTRACT

The purpose of this study was to determine if living close to the Big River Mine TailingsSuperfund Site increased blood lead levels of resident children and what contribution mining wastehad to any increase. The average blood lead level of the 226 children in the study group was6.52 ng/'dl compared to 3.43 ug/dl in the 69 control children The proportion of children with bloodlead levels greater than or equal to 10 ug/dl in the study and control groups was 17% and 3%,respectively Soil and dust lead levels were up to 10 times higher in the study group compared to thecontrol group. Source characterization of lead levels in soil in the study area indicated thatapproximately 50% of the lead could be determined to originate from mine waste Approximately26% of the vacuum dust could be attributed to waste pile source and 37% to soil, of which aproportion probably originated from mine waste.

The results of this study indicated that blood lead levels were a product of exposure to leadmining waste, lead based paint, and other sources. Because the only substantial difference betweenthe study and control areas, in terms of exposure to lead, was the presence of lead mining, miningwaste is the most reasonable explanation for the differences between the blood lead levels in the twocommunities.

I:

CONCLUSIONS

The results of this study indicated that blood lead levels were a product of exposure to leadmining waste, lead based paint, and other sources. Because the only substantial difference betweenthe study and control area in terms of exposure to lead is the presence of lead mining, mining wastewas the most reasonable explanation for the dramatic differences between the blood lead levels inthe t\vo communities

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RECOMMENDATIONS

1 Although mining waste accounts for the difference between the study and control area, bothlead paint and soil/dust lead were related to blood lead levels Blood lead levels can bereduced by efforts to both reduce exposure to mining waste and to reduce exposure to leadbased paint.

2 An educational and environmental intervention program that addresses both of these sourcesshould be initiated

3 Future studies should focus on effective interventions to reduce exposure and on adverseneurobehavioral outcomes such as school achievement and IQ XRF technology could beused to estimate long term exposure to lead by measuring accumulation of lead in bone.These measures of exposure could then be evaluated against markers of cognitivedevelopment

35

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICESPUBLIC HEALTH SERVICE

AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRYATLANTA, GEORGIA

LEAD AND CADMIUM EXPOSURE STUDYGALENA, KANSAS

January 1996

This study and final report were supported in part by funds from the ComprehensiveEnvironmental Response, Compensation, ind Liability Act trust fund through GrantNumber H75/ATH790082 provided by the Agency for Toxic Substances and DiseaseRegistry, Public HeaJth Service, U.S. Department of Health and Human Services.

ABSTRACT

In July 1990, the Agency for Toxic Substances and Disease Registry provided financialand technical assistance to the Kansas Department of Health and Environment to conduct ahuman exposure study. The primary goal of this study was to determine whether individualsresiding within the Superfund subsite in Galena, Kansas, had elevated blood lead and urinecadmium levels, and if other biomedical test values fell outside of standard clinical referenceranges. This study also sought to determine the extent to which environmental, behavioral,demographic, and other potentially confounding factors might influence lead and cadmiumexposure.

Census surveys were conducted in the study areas to Identify eligible residents rangingfrom 6 months through 44 years of age. A total of 167 residents from Galena, Kansas, and283 residents from the southern portions of Neosho and Goodman, Missouri, participated in thestudy. Residents from the southern portions of Neosho and Goodman, Missouri, area servedas the comparison population. Biological, environmental, and questionnaire informationcollected from residents of the Galena, Kansas, was compared with similar information collectedfrom residents of the comparison area.

For all ages combined, a statistically significant difference was found betweenthe two populations with respect to the geometric mean of the blood lead levels(target = 3.42 micrograms per deciliter Og/dL) versus comparison = 2.43 ^g/dL). The meanblood lead levels of children 6 through 71 months and 6 through 14 years of age in the targetarea were statistically significantly higher than the mean blood lead levels in comparison areachildren in the same age groups (4.22 versus 3.13 ftg/dL, and 3.29 versus 1.97 /zg/dL,p < 0.01 respectively). Up to 93% of participants in both study areas had blood lead levels< 10

Sociodemographic factors such as having a head of household with less than a high schoollevel of education, having an annual household income of $15,000 or less, living with a smokerin the house, being male, not having air conditioning in the home, and living in a home builtbefore 1940 were associated with increased blood lead levels. With the exception of lead inpaint, the geometric mean lead concentrations for all environmental media were statisticallysignificantly higher (p >0.05) in the target area. Statistically significant correlations betweenblood lead levels and environmental lead levels in soil (r = 0.49, p < 0.006), dust (r = 0.67,p < 0.0001), and paint (r = 0.29, p <0.1) were found in the target area. Lead concentrationsin yard soil, house dust, and paint appeared to be statistically significant predictors of blood leadlevels in young children 6 through 71 months of age residing in the target area. In contrast tothe lead findings, no statistically significant differences were observed between the twopopulations with respect to the geometric mean of urinary cadmium levels (target = 0.074 Mg/dLversus comparison = 0.075 ng/dL). Only one participant had a urine cadmium level of2 jxg/dL. The distributions of other biomedical tests were observed to be consistent with generalpopulation values.

1

The Kansas Department of Health and Environment has an ongoing program to providelead screening in the region. Additionally, remediation and monitoring efforts are also beingmaintained at the Galena subsite to minimize lead and cadmium exposures.

( CONCLUSIONS

This investigation was undertaken to evaluate lead and cadmium exposure in residentsliving near a hazardous waste site. The primary public health concern examined in this studywas whether nonoccupational residential exposure to lead- and cadmium-contaminated media(yard soil, indoor house dust, tap water, and interior house paint) statistically significantlyinfluenced levels of these contaminants in blood and urine, and whether concomitant changes inselected organ system function could be detected*

1. The blood lead levels were statistically significantly higher in target area residents thanin comparison area residents. Among children and youths (6 through 71 months and6 through 14 years of age, respectively), the mean blood lead levels in the target areawere statistically significantly higher than in the comparison area. There were nodifferences for urine cadmium between the two groups.

2. Sociodemographic factors that were statistically significantly associated with increasedblood lead levels included the area of residence, the head of household's level ofeducation, the annual household income, a smoker residing in the home, being male, theabsense of air-conditioning in the home, and living in a home built before 1940.

3. Of the four environmental factors evaluated, the geometric mean concentration of leadin yard soil, indoor house dust, and interior house paint were higher in the target area.A statistically significant association between blood lead levels and environmental leadlevels of soil, dust, and paint was found in the target area. These factors were alsostatistically significant predictors of blood lead levels in children 6 through 71 monthsof age residing in the target area.

4. There were few statistically significant differences in the distribution of the biologicaltests in the two study populations.

29

RECOMMENDATIONS

1. Study results found elevated blood lead levels due to exposures at the Galena Superfundsite. It is, therefore, recommended to the State and County Health Departments that allchildren at risk of exposure to lead and cadmium be tested and provided appropriatefollowup when indicated, and as recommended by CDC. Parents should be counseledabout sources and pathways of exposure to environmental lead and cadmium, as well asbehaviors that can contribute to childhood exposure.

2. This study identified a statistically significant association between environmental levelsof soil, dust, and paint. Therefore, it is recommended that remediation and monitoringefforts at the subsite should continue in Older to minimize fugitive emissions and stay incompliance with air, water, and soil lead and cadmium standards.

3. Ongoing research must be directed towards establishing sensitivity, specificity, andpredictive values for biologic markers if they are to be used effectively in fieldepidemiologic investigations and accurately interpreted in a health-risk-exposure context.

31

U.S. DEPARTMENT OF HEALTH AND HUMAN SERMCESPUBLIC HEALTH SERVICE

AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRYATLANTA, GEORGIA

MULTISITE LEAD AND CADMIUM EXPOSURE STUDYWITH BIOLOGICAL MARKERS INCORPORATED

April 1995

This study and final report were sii]Environmental Response, Compen:Numbers H75/ATH790082, H75/A'assistance provided by the Agency;Health Service, U.S. Department 6;Missouri, and Pennsylvania.

[• in part by funds from the Comprehensiveid Liability Act trust fund through Grant

,_|VH75/ATH790118, and through technical"'Substances and Disease Registry, Public

•and Human Services, to Illinois, Kansas,

ABSTRACT

A multisite study design was used to evaluate populations near four National PrioritiesList (NPL) sites for possible health effects related to chronic, low-level lead and cadmiumexposure. Biomedical tests were also incorporated in the study's design to detect subtlepathophysiological changes in the renal, hematopoietic, immune, and hepatobiliary organsystems.

Multivariate analysis was used to evaluate relationships between body fluid levels of leadand cadmium, area of residence, behavior, socioeconomic factors, and concentration of thesecontaminants in four environmental media (yard soil, house dust, drinking water, and interiorpaint). Area of residence, environmental media concentrations of lead, and socioeconomic andbehavioral factors were statistically significantly associated with blood lead in children 6 through71 months of age. These factors accounted for 26% of the mean blood lead variance observedin study participants.

Among children 6 through 71 months and 6 through 14 years of age. the mean blood leadlevel in target areas was higher (4.26 micrograms per deciliter [/xg/dL] and 3.45 ^g/dL) thanin comparison areas. Up to 93% of participants in all study areas had blood lead levels< 10 jxg/dL. The mean blood lead level in smelting area study sites was higher than in miningarea study sites. About 93% of mining area participants and 85% of smelting area participantshad blood lead levels < 10 /xg/dL.

The mean urine cadmium excretion was statistically significantly higher in target areasthan in comparison areas. Ninety-five percent of all participants had urine cadmium excretion< 1 microgram per gram creatinine (/xg/g creatinine). In study participants 15 years of age orolder, mean urine cadmium excretion was statistically significantly associated with area ofresidence, and with socioeconomic and behavioral factors. Cadmium concentration measuredin yard soil, house dust, and tap water was not statistically significantly associated with meanurine cadmium. There was no evidence of kidney dysfunction related to lead and cadmiumexposure at levels observed in this study.

Of the five biomarkers of hematopoietic function evaluated, blood lead was statisticallysignificantly associated with and predictive of hematocrit (HCT) in adults 15 years of age orolder (p = 0.027, r = 0.28, n = 381). For each microgram per deciliter increase in bloodlead, a less than 1 % (0.3%) decrease in HCT was predicted.

Of the six biomarkers of immune system function evaluated, the mean IgG level wasstatistically significantly lower in target area participants (p < 0.01). The mean blood lead levelwas associated with increased mean serum IgA in children 6 through 71 months of age. In thisage group, an 8% IgA increase was predicted for each microgram per deciliter increase in bloodlead, using area of residence as the independent variable (p = 0.005, r = 0.26, n = 934).

CONCLUSIONS

Among children 6 through 71 months and 6 through 14 years of age, the mean bloodlead levels in target areas were higher (4.26 /xg/dL and 3.45 /xg/dL), respectively, thanin comparison areas. However, the mean soil lead levels were higher in comparisonareas than in the target areas. Up to 93% of participants in both study areas had bloodlead levels < 10 /ig/dL.

The mean blood lead level among participants at smelting area study sites was higherthan that found at mining and smelting area study sites.

3. Socioeconomic factors that were variables associated with a blood lead level ^ 10were (1) head of household's level of education, (2) annual household income, and(3) being a male, 1 to 2 years old. The presence of air conditioning in the home andliving in a home built after 1950 were negatively associated.

4. Of the four environmental factors evaluated, only yard soil (containing leadconcentrations >500 mg/kg) was associated with a mean blood lead level > 10 /ig/dLin children 6 through 71 months of age. These children were more than twice as likelyto experience a mean blood lead level ^ 10 ^g/dL as children not exposed to mean soillead concentrations >500 mg/kg.

5. A total of 95% of all study participants in the target and comparison study areas hadurine cadmium excretion levels <1 /tg/g creatinine. The difference in mean urinecadmium excretion was higher in target areas than in comparison areas (0.18 versus0.11 /xg/g creatinine), respectively. None of the environmental media for which theconcentration of cadmium was measured were important predictors of urine cadmiumexcretion.

6. There was no association between cadmium levels in environmental media and excesscadmium exposure or kidney dysfunction among study participants.

7. This investigation demonstrated that a multisite study design is a practical approach forconducting environmental epidemiologic studies and is a complement to ongoingbiomarker research.

45

RECOMMENDATIONS

1. Local or state health departments should counsel parents of at-risk children about sourcesand pathways of exposure to environmental lead and cadmium, as well as behaviors thatcan contribute to childhood exposure.

2. Where the potential for multimedia exposure exists, each likely source and its associatedpathway should be thoroughly evaluated. Exposure prevention strategies should carefullyconsider the magnitude of risk for human exposure in order to determine and implementthe most cost-effective methods of exposure prevention.

3. Strategies for human exposure prevention should be site specific and incorporate recentbiological surveillance data, including body fluid measures of specific contaminants whenpossible. Biological surveillance data can be useful in distinguishing populations atgreatest risk and assessing the magnitude of such risk.

4. Ongoing research must be directed towards establishing sensitivity, specificity, andpredictive values for biologic markers if they are to be used effectively in fieldepidemiologic investigations and accurately interpreted in a health-risk-exposure context.

47

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICESPUBLIC HEALTH SERVICE

AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRYATLANTA, GEORGIA

JASPER COUNTY, MISSOURI SUPERFUND SITELEAD AND CADMIUM EXPOSURE STUDY

MISSOURI DEPARTMENT OF HEALTHDIVISION OF ENVIRONMENTAL HEALTH AND EPIDEMIOLOGY

BUREAU OF ENVIRONMENTAL EPIDEMIOLOGY

February 1995

This study and final report were partially SUfJported by funds from the ComprehensiveEnvironmental Response, Compensation, inifrLiability Act trust fund provided to theMissouri Department of Health, under Qrantlpo. H75/ATH790118 from the Agency forToxic Substances and Disease Registry, Pabli(i Health Service, U.S. Department of Healthand Human Services. '-vl:

ABSTRACT

One of the largest lead-zinc mining areas in the world since the mid-1800's was the Tri-State Mining District, part of which is located in southwest Missouri. Approximately 240 squaremiles of the district remains today as die Jasper County Superfund Site. The Site ischaracterized by extensive surface land disturbances and waste piles that resulted from mining,milling, and smelting of ore. The major population center of the region is Joplin. To determineif there is a relationship between exposure to mining wastes and elevated blood lead and urinecadmium levels, this study evaluated 391 exposed persons and 271 individuals from an areawhere no mining has occurred. Results of the study found that blood lead levels weresignificantly higher in the exposed group compared to the control group. There was nosignificant difference for cadmium between the two groups. Also, the study determinedenvironmental exposure to the area soil was the most important factor influencing the distributionof blood lead levels between the two groups.

CONCLUSIONS

This study evaluated an exposed and a control population for exposure to lead andcadmium mining wastes. The evaluation covered four specific objectives and found:

1. The blood lead values were significantly higher in the study group compared tothe control group. There was no significant difference for urine cadmiumbetween the two groups.

2. Levels of lead and cadmium in various environmental media (soil, dust, interiorpaint) were significantly higher in the study area as compared to the control area.

3. There were very few significant differences in the biological tests between thestudy and control groups.

4. Environmental exposure to soil was the most important factor influencing thedistribution of the childhood blood lead levels between the two groups.

27

RECOMMENDATIONS

1. Study results found elevated blood lead levels due to exposure to soils at the JasperCounty Superfund Site. We, therefore, recommend that exposure to the leadcontaminated soil in the study area be reduced.

2. Adverse neurobehavioral outcomes are considered to be the health problems of concerndue to blood lead poisoning. This study did not attempt to evaluate the neurobehavioraloutcomes, such as school achievement or IQ scores from standardized tests administeredin local school systems. We recommend a study be initiated to evaluate neurobehavioraloutcomes based on these school records.

3. For future similar epidemiological studies, we recommend environmental soil and dustsamples for lead be speciated to determine the percent of the contribution from thevarious sources of environmental lead.

29

U.S. DEPARTMENT OF HEALTH AND HUM.AN SERVICESPUBLIC HEALTH SERVICE

AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY MAY 2 3 1994ATLANTA, GEORGIA ^ ^^

RECTO* ttl

DRAFT FOR PUBLIC COMMENT

Address Wrinen Comments To:

David Webb, ToxicologistIllinois Department of Public Health22 Kettle River RoadEdwardsville, Illinois 62025Telephone: (618) 656-6680

M.ADISON COUNTYLEAD EXPOSURE STUDYGRANITE CITY, ILLINOIS

ILLINOIS DEPARTMENT OF PUI.M.IC HEALTHSPRINGFIELD, ILLINOIS

February 1994

This report was supported by funds from the Comprehensive Environmental Response.Compensation, and Liability Act trust fund through a cooperative agreement wi th theAgency for Toxic Substances and Disease Registry, U.S. Public Health Service

ABSTRACT

A lead exposure study of 827 participants was conducted around a closed secondary lead

smelter in August and September of 1991 in Granite City, Illinois. The arithmetic mean venous

blood lead level in 490 children under 6 years of age was 0.33 ^moi L (6.9 ug dl; , w i t h a range

of 0.03 to 1.94 ^mol 'L (0.7 to 40.2/ig/dl). The blood lead levels were log-normalh distributed

wi th a geometric mean of 0.27 ^mol/L (5.58 ng/dl). Of the 78 children under 6 years of age•

wi th blood lead levels £0.48 nmol/L (^ 10/ig/dl) only 5 children had a blood lead level > 1 .21

w m o l ' L ( > 2 5 ug dl) . Blood lead levels in 214 youths from 6 through 15 years of age were

lower, wi th a mean of 0.33 umol L (4.4 ng/dl) and a range of <0.03 to 0.90 umei L ( < 0 . 6

to 1S .S ug d l ) . Only 8 children in this group had blood lead levels >0.4S ^mol 'L (> 10 ^g 'dl.!.

Mean blood lead l e \ e l s in adu l t s were 0.17 /xmol/L (3.6 ^g. dl' and in 14 pregnant women 0.08

umol L ( 1 . 6 u g ' d l ) . Complete blood counts and a batten,' of c l in ica l laboratory tes ts revealed

occasional abnormal findings unrelated to lead exposure.

Man\ houses in th is community were built before 1920 and some v.ere in poor condition.

Seventy percent (70 5r) of interior paint and eighty percent (80 ^ i of outside paint in those houses

contained >1 mg cnv of lead, and many lead paint measurements were > 6 m g ' c n r . The le\'els

of lead in composi te soil from the yards of these houses ranged from 3~ to 3,010 mg kg (37 to

3.010 pprrn and the concentrat ion of lead in house dust ranged from 5.2 to 71,000 mg.kg (5.2

to "1.700 p p m i on a w e i g h t basis and from 0.02 to 58,800 ug ;rrr on a surface area basis.

Blood lead levels in children tended to be higher as the condition of the house they lived

in and their parents' education and income level decreased. Houses wi th higher lead paint levels

had higher soil lead levels but the soil had little effect on blood lead levels.

The mean blood lead level of children living in houses in good condit ion was C .29

nmol 'L (6 Mg'dl ) . Children living in houses in fair condition had mean blood lead levels of 0.4

umol/L (8.2 jxg/dl) and children living in houses in poor condition had mean blood lead levels

of 0.57 ̂ mol/L (11.8 ̂ g/dl). The dust load was higher in houses in poor condition than in

houses in good condition.

Regression analysis showed that lead in paint alone accounted for 37c of the variance in

ch i ld ren ' s blood lead levels . Lead in paint and the condition of the houses together accounted

for 11 rc of the variance in blood lead. Adding soil lead to the regression equation for lead in

paint and the condition of the houses accounted for an additional 3 £ of the variance in blood

iead. Only 37£ of the variance in blood lead could be accounted for by including all of the

variables in the study.

CONCLUSIONS

1. Blood lead levels of children under 6 years of age and in older children and adults were,

for the most part, below the new CDC level of concern of 0.48 ^moLL (< 10 ug dl):3

2. In the study population, the highest percentage of children with elevated blood lead levels

were from 1.5 through 2.5 years of age suggesting that this could be an optimal age for

3. Children with higher blood lead levels lived in houses near the closed smelter, but they

also lived in houses further away from the site, and as of 1991. outside the USEPA area

targeted for soil clean up.

4. The soil lead levels decreased as distance from the smelter increased.

5. For small children, house dust served as a major vector of exposure. The source of lead

in house dust was the lead in paint and soil.

6. High concentrations of lead in paint in u.ell-maintained houses did not contribute

noticeably to lead exposure. Many of the children wi th low blood lead levels lived in

houses in good condit ion, but with very high lead paint levels.

53

7. Lead uptake was influenced by many personal variables (such as behavior, socioeconomic

status, education, smoking), and variables present in each house. These individual

factors were difficult to assess. The inability to account for 60% of the variance in lead

uptake underscores that point.

8. Education of the parents/guardians about the lead hazards in their homes, suggestions for

remedial action, and changes in behavior had a favorable impact on children's blood lead

levels.

9. Lead in water, lead in paint, condition of the house, refinishing of the house wi th in the

last year, and lead in soil made Statistically significant contributions to the variance in

blood lead l e v e l s . However, the model using a hierarchical regression analysis was only

able to explain 15 ̂ c of the variance in children's blood lead levels.

54

ATTACHMENT B

->Eppley FLD OMA 1984-92

January 1-December 31; Midnight-11 PMN

W

20<~c

CALM WINDS 5.24%A(>77f . Frequencies

.nd<.^a:e direction

WIND SPEED (KNOTS)

1-3 4-6CALMS

ATTACHMENT C

.SB; ENT.!.••ASnlSG'C'- -

3 1991

OSWER Directive #9834.6

MEMORANDUM

SUBJECT:

FROM:

Policy Towards Owners of Residential Property atSuperfund Sites

gency Response

TO:

Don R. Clay ___Assistant AdministrateOffice of Solid Waste

^Raymond B. Ludwisz-ewskiActing Assistantr Adminisljrato::office of Enforcement

Regional Administrators, Regions I - X

This memorandum transmits to you the Agency's "PolicyTowards Owners of Residential Property at Superfund Sites."

The guidance sets forth the Agency's enforcement policytowards owners of residential property located on a Superfundsite under the Comprehensive Environmental Response,Compensation, and Liability Act of 1980 (CERCLA), as amended bythe Superfund Amendments and Reauthorization Act cf 1986 (SARA).

This guidance has been developed jointly by the office ofSolid Waste and Emergency Response and Office of Enforcement.The guidance reflects input from the Regions, Office of GeneralCounsel and the Department of Justice. There have been severaldrafts of this guidance and changes based on comments have beenincorporated. We thank you for your assistance.

Attachment

cc: Director, Waste Management Division,Regions I, IV, V, and VII

Director, Emergency and Remedial Response Division,Region II

Director, Hazardous Waste Management Division,Regions III, VI, VIII, and IX

Director, Hazardous Waste Division, Region XDirector, Environmental Services Division,

Regions I, VI, and VIIRegional Counsel, Regions I-X

OSWER Directive ^9834.6

POLICY TOWARDS OWNERS OF RESIDENTIAL PROPERTYAT SUPERFUND SITES

U.S. Environmental Protection AgencyOffice of Solid Waste and Emergency Response

Office of EnforcementWashington, D.c. 20460

OSWER Directive ir9834.6

I . INTRODUCTION

A. Purpose and Summary

This guidance describes EPA's policy for enforcement actionsto recover response costs or to require response actions underthe Comprehensive Environmental Response, Compensation, andLiability Act of 1980 (CERCLA or Superfund) as amended by theSuperfund Amendments and Reauthorization Act of 1986 (SARA), withrespect to owners of residential property located on a Superfundsite.

Under this policy, EPA, in the exercise of its enforcementdiscretion, will not take enforcement actions against an owner ofresidential property to require such owner to undertake responseactions or pay response costs, unless the residential homeowner'sactivities lead to a release or threat of release of hazardoussubstances, resulting in the taking of a response action at thesite. This policy does not apply when an owner of residentialproperty fails to cooperate with the Agency's response actions orwith a state that is taking a response action under a cooperativeagreement with EPA pursuant to section 104(d)(l) of CERCLA. Thispolicy also does not apply where the owner of residentialproperty fails to meet other CERCLA obligations, or uses theresidential property in any manner inconsistent with residentialuse.

EPA is issuing this policy to address concerns raised byowners of residential property, and to provide a nationallyconsistent approach on this issue.

B. Background

Several sites that are the subject of a response action(removal or remedial activities) under CERCLA include propertiesthat are used exclusively a* single family residences (one-to-four dwelling units). At several larger sites, soil or groundwater contamination may be so extensive that there are severalhundred of these residential properties located on a Superfundsite.

Some owners of residential property located on a Superfundsite are concerned about potential liability for performance of aresponse action or payment of cleanup costs because they nay come

1 This policy does not provide an exemption from potentialCERCLA liability for any party; it is a statement of the Agency'senforcement discretion. Liability is governed by Section 107 ofCERCLA.

2 OSWER Directive *9834.6

within the definition of "owner" under the statute.2 Owners ofresidential property located on a Superfund site have expressedthe concern that they may be unable to sell these propertiesbecause the buyer and the lending institution may also beconcerned about potential liability.

C. Past Agency Practice and Basis for Policy

In the past, the Agency has not required owners ofresidential property located on a Superfund site to performresponse actions or pay response costs except where theresidential homeowners' activities lead to a release or threat ofa release of hazardous substances, resulting in the taking of aresponse action at the site. Despite this general practice,some owners of residential property have asked EPA for individualassurances that the Agency not take an enforcement action againstthem for performance of the response action or payment ofresponse costs. The Agency has not been able to provideindividual owners of residential property with assurances of noenforcement action outside the framework of a legal settlement,and this policy does not alter EPA's policy of not providing noaction assurances.*

This guidance instead constitutes a general statement ofpolicy regarding the Agency's exercise of enforcement discretionwith respect to owners of residential property located on aSuperfund site. The purpose of this policy is to continue theAgency's past practice and to provide guidance for Agencyenforcement staff.

II. DEFINITION OF KEY TERMS

The following definitions are applicable for the limitedpurposes of this policy, and do not represent the Agency'sinterpretation of these or any similar or related statutory termsin any context other than this policy:

Under section 107(a)(1) of CERCLA, a person is liable ifit is the owner or operator of a facility. 42 U.S.C. Section9607 (a) (1). Under section 101(9)(B) of CERCLA, a facility isdefined to include "any site or area where a hazardoussubstance...has...come to be located." 42 U.S.C. Section9601(9)(B).

3 The Agency has required owners of residential property toprovide access to the residential property in order to assess theneed for a response action or implement a response action, and tootherwise cooperate with cleanup activities.

* See "Policy Against No Action Assurances." (November 15,1984) .

3 CSWER Directive #9834.6

o The tern "owner of residential property," neans aperson, as defined under section 101(21) of CERCLA, whoowns residential property located on a Superfund site,and who uses or allows the use of the residentialproperty exclusively for residential purposes. Theterm also includes owners who make improvements thatare consistent with residential use. Such term doesnot include 1) any owner who has conducted or permittedthe generation, transportation, storage, treatment orhandling of hazardous substances on the residentialproperty other than in quantities and uses typical ofresidential uses; 2) any owner who disposes ofhazardous substances on the residential propertyresulting in the talcing of a response action; and 3)any owner who acquires or develops the residentialproperty for commercial use, or for any other useinconsistent with residential use.

o The term "residential property," refers to singlefamily residences of one-to-four dwelling units,including accessory land, buildings or improvementsincidental to such dwellings which are exclusively forresidential use.

o The phrase "located on a Superfund site" meansproperties that are within an area designated forinvestigation or study under CERCLA, listed as aSuperfund site on the National Priorities List,identified as the subject of planned or current removalor remedial activities, where hazardous substances havecome to be located, or which are subject to or affectedby a removal or remedial action.

III. STATEMENT OF POLICY

In implementing CERCLA, EPA may use enforcement discretionin pursuing potentially responsible parties (PRPs) forenforcement actions. It is within the Agency's enforcementdiscretion to identify appropriate PRPs to perform responseactions or pay response costs.

In the exercise of its enforcement discretion, the Agency

EPA notes that this definition of "residential property"is consistent with the designation for single family residencesunder the National Housing Act, 12 U.S.C. Section 1701.

6 See generally. Heckler v. Chaney. 470 U.S. 821 (1985);U.S. v. Helen Kramer. et al. No. 89-4340 (D.N.J. February 8,1991).

4 OSWER Directive #9834.6

has determined that it will not require owners of residentialproperty locared on a Superfund site to perform a response actionor pay response costs if the owner's activities are consistentwith this policy.' Under this policy, EPA's exercise ofenforcement discretion will extend to lessees of residentialproperty provided that the lessees' activities are consistentwith this policy. This policy also applies to persons whoacquire residential property through purchase, foreclosure, gift,inheritance or other form of acquisition, as long as thosepersons' activities after acquisition are consistent with thispolicy.8

This policy does not apply to an owner of residentialproperty who has undertaken activities leading to a release orthreat of release of hazardous substances, resulting in thetaking of a response action at the site.9 In such situations,the Agency would contemplate bringing an enforcement actionagainst the owner of the residential property to perform aresponse action or to pay response costs. In addition, if anowner of residential property located on a Superfund sitedevelops or improves the property in a manner inconsistent withresidential use, or the development of the residential propertyleads to a release or threat of release of hazardous substancesresulting in the taking of a response action at the site, thenthe owner would not be within the scope of this policy. Also, ifan owner of residential property fails to provide the Agency withaccess to the residential property located on a Superfund site toevaluate the need for a response action or to implement aresponse action, or fails to comply with any other CERCLAobligations, this policy would not apply.10

This exercise of enforcement discretion applies to owners ofresidential property located on a Superfund site who purchased or

Consistent with the Agency's no action assurance policy(see footnote 4), this policy does not require the Agency to makeprospective determinations of whether particular owners ofresidential property meet the requirements of this policy.

8 If the Agency has perfected a federal lien on theresidential property prior to the acquisition by the new owner,this policy does not affect the status of that lien.

' The Agency's experience has been that in general,activities which are undertaken consistent with single familyresidential use do not lead to a release or threat of a releaseof hazardous substances, resulting in a response action beingtaken at a site.

10 See Section IV of this policy for a further discussionof other CERCLA obligations.

5 OSWER Directive #9834.6

sold the residential property in the past cr who purchase or sellthe residential property after the issuance of this policy.Whether an owner of residential property has or had knowledge orreason to know that contamination was present on the site at thetime of purchase or sale of the residential property will notaffect EPA's exercise of enforcement discretion under thispolicy.

This policy is not based on, and has no effect on, thedefenses to liability available to an owner of residentialproperty, or any other person, under section 107(b) of CERCLA.This policy is not related to the "innocent landowner defense"described in sections 107(b)(3) and 101(35) of CERCLA; it isbased entirely on EPA's enforcement discretion. Thus, theability of an owner of residential property to assert any defenseto liability is unaffected by this policy.

IV. OTHER CERCLA OBLIGATIONS

Although the Agency, in the exercise of its enforcementdiscretion, will not require owners of residential property toundertake or pay for response actions if the owners' activitiesare consistent with this policy, to benefit from this policy anowner of residential property must comply with other CERCLAobligations.

To come within the scope of this policy, owners ofresidential property must provide access to the residentialproperty when requested by EPA, or report information requestedby the Agency.'1 In addition, owners of residential propertymust cooperate with EPA and not interfere with any of theAgency's activities on the residential property taken to respondto the release or threat of release. Similarly, owners ofresidential property must cooperate with and not interfere withthe activities of a state that is taking a response action undera cooperative agreement with EPA pursuant to section 104(d)(l) ofCERCLA. Moreover, owners djf residential property must complywith institutional controls placed on their residential propertyin order to facilitate performance of a response action and toprotect human health and the environment.12

11 The Agency has developed guidance which explains theauthorities and procedures by which EPA obtains access orinformation. See OSWER Directive #9829.2, Entry and ContinuedAccess under CERCLA (June 5, 1987). See also OSWER Directive#9834.4-A, Guidance on Use and Enforcement of CERCLA InformationRequests and Administrative Subpoenas (August 25, 1988).

12 Institutional controls are conditions or limitationscommonly placed on property by local or state authorities toensure that activities (e.g., excavation, construction or other

6 OSWER Directive f9834.6

Nothing in this policy is intended to affect any otherobligations required of owners of residential property or anyother_oerson under CERCLA or other federal, state and locallaws. EPA reserves its authority to obtain access and toenjoin owners of residential property from interfering withresponse actions, and to seek recovery of response costs ifbringing such actions becomes necessary.

This policy does not change the opportunities available toowners of residential property located on a Superfund site toparticipate in the response selection process. To the extentsuch parties wish to receive individual notice of responseactivities, EPA will provide individual notice of publicmeetings, public comment periods or other public participationactivities to owners of residential property which are on theAgency's community relations mailing list." The eligibility ofowners of residential property for Technical Assistance Grantsunder CERCLA is also unaffected by this policy.

V. PURPOSE AND USE OF THIS GUIDANCE

This policy and any internal procedures adopted for itsimplementation are intended exclusively as guidance for employeesof the U.S. Environmental Protection Agency. This guidance doesnot constitute rulemaking by the Agency and may not be reliedupon to create a right or a benefit, substantive or procedural,enforceable at law or in equity, by any person. The Agency maytake action at variance with this guidance or its internalimplementing procedures.

VI. FURTHER INFORMATION

For further information concerning this policy, pleasecontact Gary Worthman in the Office of Waste Programs Enforcementat FTS (202) 382-5646, or Patricia Mott in the office ofEnforcement at FTS (202) 245-3733.

similar activity) undertaken by the owner of residential propertydo not exacerbate the conditions at the site, in some waydiminish the effectiveness of a remedy which has been or is beingimplemented, or otherwise present a threat to human health or theenvironment.

13 For example, if the owner of residential property hasknowledge that a release has taken place on the residentialproperty, the owner must notify appropriate authorities.

14 For each site the Community Relations Coordinator ineach Region maintains a community relations mailing list.