Non-EPA/USCG Response under the NCP

1. Non-EPA/USCG Response under the NCP Craig Myers Federal On Scene Coordinator United States Environmental Protection Agency

2. Discussion Points Applicability - when is EPA/USCG NOT in charge Expectations - what you, the Trustees, can expect Similarities/Differences in DOD/DOE led responses Responsibilities - what is the Trustees’ role More responsibilities - how does it change the role of the RRT Specific Examples (DOD, DOE, NIST)

3. Important Points: Authorities • National Oil & Hazardous Substance Pollution Contingency Plan (NCP) • All Oil, Hazardous Substances, & Pollutants or Contaminants • Actually a regulation (i.e. a law) • Includes any imminent and substantial threat to the public health or welfare of the United States or the environment of the United States including radiological materials • National Response Framework (NRF) • All Hazards • Nuclear/Radiological Incident Annex • Emergency Support Function #10 • Not a promulgated regulation

4. Important Points • NCP 40 CFR § 300.120(c): if release is on, or sole source is from a facility/vessel under jurisdiction/control of a federal agency, that agency provides the OSC • For DOD/DOE facilities, DOD/DOE designated OSC will lead the cleanup – 300.120(c)(1) • For hazardous substances only • Oil is EPA or USCG, regardless of source

5. More Important Points • Emergency vs Non-Emergncy Removal • EPA/USCG provide OSCs for Emergency Removals 300.120(c)(2), except DOD/DOE • Other Feds can only provide OSCs for non-Emergency Removals • NCP does not define “emergency” • “First Federal Official” – 300.5 and .135(b) • OSC Representative (FOSCR) – 300.120(h)(2)

6. EXPECTATIONS • As always, the OSC shall notify natural resource trustees of release and actions and coordinate efforts. • The lead agency shall designate a spokesperson. • The spokesperson shall inform the community of actions taken, respond to inquiries, etc…NCP § 300.415(n). Also subject to same public comment period timeframes.

7. Similarities to EPA-led actions • Only comply with ARARs to the extent practicable …NCP § 300.400(g). • Are exempt from permits for on site actions NCP § 300.400(e) • Admin Records must be compiled per NCP § 300.800 (Subpart I) • If a CWA H.S. posing substantial threat to public health, the OSC shall direct all actions on scene, the OSC shall request immediate RRT activation, and RRT agencies shall dispatch appropriate personnel as requested.

8. Differences • No statutory limits on removals (12 months/$2M) • Only applies to CERCLA Fund-financed actions NCP § 300.415(b)(5) • May see an OSC change at the end of the “emergency phase’ • e.g. post-Anthrax Postal Facility clean ups • Lead agency transitions from EPA to other federal agency

9. RESPONSIBILITIES - Trustees • Trustees (Fed and State) still assist, support and coordinate with the OSC (NCP 300.615) • Not a formal consultation process • No PRFAs through CERCLA. Trustees to participate through own authorities/ funding or negotiate IAG.

10. RRT’S ROLE • Still provides coordination/assistance to the OSC during a response. • Incident specific RRT roles determined by the operational requirements of response. This is determined by RRT Chair (300.115(b)(2)). • Lead Agency for response provides the Chair for the RRT activation. For this discussion, DOD/DOE becomes the Chair of the RRT (also 300.115(b)(2)).

11. RRT’S ROLE (con’t) • Once activated they may monitor and evaluate reports, request additional resources, help prepare information releases, make recommendations to change OSC (300.115(j)(4). • RRT can be deactivated when the incident specific Chair determines the OSC no longer requires assistance. - 300.115(j)(7)

12. OTHER CONSIDERATIONS • All “OSC-shall” requirements still apply • CWA H.S. releases/substantial threat to public health • Specific requirements for activation of the RRT. • OSC directs all actions on scene (Fed/State/Private) • All news releases shall be coordinated with the OSC • If Public Health emergency possible, the OSC should notify the HHS representative to the RRT (300.135)

13. Specific situations - DOD • Hazardous Substances from Bases/Weapons Depots/Facilities • DOD provides the OSC • DOD chairs the incident specific RRT • EPA has little NCP/CERCLA authority, but may assist if requested by DOD. • EPA may also provide assistance to local/state governments through Public Health Act mechanism

14. Specific situations - DOD • Oil on/from DOD installation • EPA/USCG provides the OSC – both on and off the installation • EPA/USCG chairs the incident specific RRT • DOD acts under their fiduciary responsibilities as the PRP. • Case history: Hunter Army Airfield – JP4 spill • Base Commander repeatedly denies legitimate OSC (EPA) access to base

15. Hunter Army Airfield – Savannah, GA, 1992 • Large spill on-base in a wetland, migrating towards water. • Once he gained access to the base, OSC requests for equipment/resources and suggested tactics ignored. • Army lost control of the spill, which entered waters of the US, and a second spill of 5,000 gallons occurred • Commander could have been held personally liable for damages due to their actions. • Exceeded the scope of their employment • Actually impeded the agent w/ legal authority to effect the clean up. • A private lawsuit was threatened, results are unknown, commander was “moved on” shortly after the incident.

16. Specific situations – DOE/NREL or St. Vrain • Release of hazardous substance from NREL • DOE provides the OSC • DOE chairs the incident specific RRT • EPA has little NCP/CERCLA authority, but may assist if requested by DOE • Release of Oil from NREL/St Vrain • EPA provides the OSC • EPA chairs the incident specific RRT

17. Specific Situation – Hazardous Substance from U.S. Nuclear Power Plants • EPA provides the OSC – for all efforts except radionuclides. • Production power plants are private property • Radionuclides excluded from “release” if due to a nuclear incident under AEA • Nuclear incident – occurrence within the US that causes injury, loss of life, property value, etc from a radionuclide resulting from a stationary or mobile “processing or utilization facility” • EPA may respond under CERCLA to assess under 104(b) • …Until evidence that all parts of the exclusion are met (US DOJ 11/2010)

18. US Power Plants (Cont) • Radiological response to a radionuclide release from a nuclear power plant is not a CERCLA response. • Unless a release of other non-radioactive material causes comingling of contaminants, there is no release under CERCLA, and the site investigation must be concluded. • As such, no permit exclusion and no ARARs for the response. • Non U.S. plants are not excluded • A release from a plant outside the U.S. (i.e. a foreign source) could be a CERCLA response action and should fall to EPA to provide the OSC.

19. NIST Plutonium release • June 9, 2008 a glass vial containing 0.25 grams of Plutonium was broken in a laboratory at the NIST Boulder Laboratories • Pu released to sanitary sewer and possibly through lab hood vents. • Pu tracked throughout laboratory building • DOE assistance requested several days later, DOE RAP responded. • Notification to City of Boulder and NRC (Nat’l Resp. Cntr) lagged several days.

20. NIST Pu (cont) • Who provided the OSC, and who should have? • Pu source transferred to NIST under their NRC license from DOE • Not DOE’s facility/jurisdiction. • Most, if not all, Pu isotopes are listed hazardous substances in the 302 table. • Not a weapon - 300.130(g) does not apply • Not a nuclear incident under AEA. • Not a release from a reactor • 300.130(f) would suggest that the NCP governs unless an INS is declared (which it was not)

21. NIST (cont) • NRC (Nuc. Reg. Com.) provided the OSC, with DOE assistance • In effect, followed the FRERP/NRP/NRF, not the NCP. • No INS or Stafford Act declaration • NCP should have governed the response absent such a declaration • EPA should have been the OSC for the “emergency”. • NIST would have been the OSC for the “non-emergency” phase. • FRERP was a regulation, and conflicted with the NCP. Now, the NRF is not a regulation. How does this effect the conflict with a bona fide regulation – which one governs?

22. EPA Radiation Response EPA’s radiological emergency response program was created to fulfill responsibilities under: • Statutes such as: • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) • Atomic Energy Act • Federal plans such as: • National Response Framework’s Nuclear/Radiological Incident Annex (NR/IA)

23. Nuclear/Radiological Incident Annex • DHS manages overall response + external affairs + non-radiological response • Coordinating Agency (DOD, DOE, NRC, EPA, USCG, NASA) manages technical aspects of Federal radiological response – the coordinating agency for an incident depends on the site location (jurisdiction) of the agency • Under current NR/IA, DOE leads early phase response • Transitions to EPA during intermediate phase • EPA manages monitoring activities during late phase • Federal Radiological Monitoring and Assessment Center transitions from DOE

24. Coordinating and Cooperating Agencies- Current NRF “Nuc/Rad” Annex

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