Publications

Environmental Guidelines:
Worker Exposure to Vapor Intrusion


By
Joseph T. Walsh III
Suzanne M. Murphy

The application of environmental guidelines in the workplace is an issue that presents a challenge for in-house counsel who represent clients in industry. One such circumstance pertains to worker exposure on environmental clean-up sites where the indoor air contains contaminants that seeped up from land and ground water under buildings -- termed vapor intrusion.

Applicable Regulations - Federal Preemption

The Occupational Safety and Health Act ( OSH Act) authorizes the Secretary of Labor to set mandatory occupational safety and health standards applicable to all businesses affecting interstate commerce. See 29 U.S.C. 651(b)(3). The relevant sections of the OSH Act for the preemption analysis include 4(b)(4), 18(a) and 18(b). See 29 U.S.C. 653(b)(4), 667(a) and 667(b). In Gade v. National Solid Wastes Mgmt. Association, 505 U.S. 88, 107-08, 112 S.Ct. 2374, 2388 (1992), the Supreme Court held, unless a state has obtained Occupational Safety and Health Administration (OSHA) approval for its own occupational safety and health plan, any attempt to enforce standards where a federal regulation exists is preempted. As in-house counsel to a client with industrial concerns, you must research whether the state in which your facility is located has an OSHA-approved occupational safety and health plan.

USEPA v. OSHA

If your client has industrial clean-up sites in states that do not have an OSHA- approved plan, federal regulation applies to determine whether the indoor air quality meets legal requirements for worker exposure. Although in the past, the United States Environmental Protection Agency (USEPA) deferred to OSHA for exposure levels applicable in the workplace, that position may soon change. Within the USEPA's November 2002 Draft Subsurface Vapor Intrusion Guidance document, it recognized OSHA's authority to regulate worker exposure. Specifically, I.D.(a) states:

There may be occupational settings where persons present are employees and hazardous constituents may be intruding into the air space from the vapor intrusion pathway. . . . OSHA and EPA have agreed that OSHA generally will take the lead role in addressing occupational exposures.


That position echoes a 1990 Memoranda of Understanding between USEPA and OSHA wherein the agencies agreed to "establish and improve the working relationship" between them and recognized OSHA's responsibility for enforcing the OSH Act which provides "authority to promulgate mandatory safety and health standards for private sector workplaces." See MOU, dated 11/23/90 and 2/13/91.

Most recently, however, the USEPA requested that OSHA confirm that it will indeed spearhead the regulation of worker exposure to vapor intrusion. It has been reported that OSHA has concluded that, under 5(a)(1) of the OSH Act, the General Duty Clause, its authority to regulate contamination is limited to that which "originates" in the workplace and not that which originates in contaminated land and/or groundwater beneath the workplace. See InsideEPA.com, "OSHA's Legal Findings Could Help EPA Target Workplace Vapors," dated Sept. 30, 2004 .

Actually, 5(a)(1)'s General Duty Clause contains no such limiting language whatsoever. Moreover, OSHA does regulate worker exposure to contaminants that do not necessarily originate in the workplace. For example, according to OSHA's Technical Manual, OSHA addresses worker exposure to indoor air contaminants, including radon which it defines as having its potential source in "ground beneath buildings, building materials, and groundwater." Similarly, OSHA regulates construction worker exposure to lead with no mention regarding the original source. See, eg, 29 CFR 1926.62.

Accordingly, while it has been reported that the USEPA will consider OSHA's recent stance, this author recommends that the USEPA seriously consider OSHA's inconsistency. Additionally, this author strongly urges OSHA and the USEPA to clearly delineate contamination that originates in the workplace as compared to that which presents a hazard at the workplace but does not actually originate therein. At this juncture, nothing in the OSH Act or OSHA regulations suggests a point of distinction.

USEPA Action Under RCRA v. OSHA

Prior to OSHA's recent position yet to be confirmed by the USEPA, case law suggested that workplace exposure at RCRA sites should be subject to OSHA standards. In United States v. Borowski, 977 F.2d 27, 31 (1st Cir. 1992), the court recognized RCRA's provision "specifically requiring the EPA to provide information about employee hazards to the Secretary of Labor and OSHA for OSHA enforcement purposes." See also City of Toledo v. Beazer Materials and Services, Inc ., 1995 WL 770396 at *70 (N.D. Ohio Aug. 29, 1995 ).

EPA Action Under CERCLA v. OSHA

CERCLA does not have a similar provision as RCRA deferring to OSHA regulations and the Draft Vapor Intrusion Guideline document referred to above specifically notes that "at CERCLA sites, the cleanup levels are generally determined either by ARARs [applicable or relevant and appropriate requirements] or risk range considerations; the OSHA standards are not ARARs under the CERCLA statute and regulations. Therefore, there may be instances (under CERCLA and other cleanup programs) where standards other than the OSHA standards are used to determine whether the exposure pathway presents a risk to human health." See Guidance Document, at p. 3 n.1. However, in Covalt v. Carey Canada Inc., 860 F.2d 1434, 1439 (7th Cir. 1988), the Seventh Circuit noted that:

The Superfund Act regulates waste dumps and other leakages "into the environment." The interior of a place of employment is not "the environment" for purposes of CERCLA " at least to the extent employees are the injured persons " and 309(a)(1) therefore does not apply to [the plaintiff's] claim.


Pursuant to the reasoning of the Covalt court, the CERCLA ARARs that do not include OSHA standards should not apply to worker exposure.

Conclusion

As in-house counsel to a client with industrial concerns, you need to be aware of whether the state in which your client has environmental clean-up sites has an OSHA-approved plan regarding worker exposure and, if not, then either OSHA or USEPA standards apply in determining whether the indoor air quality meets permissible levels. While the USEPA has previously deferred to OSHA authority, OSHA's recent limiting position regarding contaminants that "originate" in the workplace suggests that you may need to ensure compliance with USEPA standards. Due to the unconfirmed positions of the agencies involved, you must keep updated with developments in this area.

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