Non-EPA/USCG Response Under the NCP

Transcription

1 Non-EPA/USCG Response Under the NCP 15 th Annual OSC Readiness Training Program

2 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) National Response Framework (NRF) All Hazards Nuclear/Radiological Incident Annex Emergency Support Function #10 Not a regulation 15 th Annual OSC Readiness Training Program 1

3 Important Points NCP 40 CFR (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 (c)(1) For hazardous substances only Oil is EPA or USCG jurisdiction, regardless of source 15 th Annual OSC Readiness Training Program 2

4 More Important Points Emergency vs Non-Emergency Removal EPA/USCG provide OSCs for Emergency Removals (c)(2) Other Feds can only provide OSCs for non- Emergency Removals NCP does not define emergency 15 th Annual OSC Readiness Training Program 3

5 Similarities to EPA-led Actions Only comply with ARARs to the extent practicable NCP (g). Are exempt from permits for on site actions NCP (e) Admin Records must be compiled per NCP (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. 15 th Annual OSC Readiness Training Program 4

6 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 ( (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 (b)(2)). 15 th Annual OSC Readiness Training Program 5

7 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 ( ) 15 th Annual OSC Readiness Training Program 6

8 Specific Situations DoD Hazardous Substances from Bases/Weapons Depots/Facilities e.g., hydrazine from an F-16 or chemical weapons from a depot DOD provides the OSC DOD chairs the incident specific RRT EPA has little NCP/CERCLA authority, but should assist if requested by DOD. EPA may also provide assistance to local/state governments through Public Health Act mechanism (continued) 15 th Annual OSC Readiness Training Program 7

9 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 th Annual OSC Readiness Training Program 8

10 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. 15 th Annual OSC Readiness Training Program 9

11 Radiological Response EPA lead if non-dod/doe facility in the inland zone. If DOE facility, DOE has the OSC authority Weapons have their own plan/agreement between DOE/DOD. Nuclear power plants are also different, but we ll get to that later. 15 th Annual OSC Readiness Training Program 10

12 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. 15 th Annual OSC Readiness Training Program 11

13 NIST Pu 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 (g) does not apply Not a nuclear incident under AEA. Not a release from a reactor (f) would suggest that the NCP governs unless an INS is declared (which it was not). (continued) 15 th Annual OSC Readiness Training Program 12

14 NIST Pu 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 nonemergency phase, not the NRC or DOE. 15 th Annual OSC Readiness Training Program 13

15 Regulation vs Policy FRERP was a regulation, and conflicted with the NCP. Now, the NRF is not a regulation, but a plan prepared at the direction of the President, ostensibly with public comment. How does this effect the conflict with a bona fide promulgated regulation which one governs? 15 th Annual OSC Readiness Training Program 14

16 Specific Situation Hazardous Substance from U.S. Nuclear Power Plants EPA provides the OSC for all efforts except radionucleides. Production power plants are private property Radionucleides 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) 15 th Annual OSC Readiness Training Program 15

17 US Power Plants 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/USCG to provide the OSC for response actions within the US. 15 th Annual OSC Readiness Training Program 16

18 What if: a foreign power-plant has a release of nuclear material? DOE will likely be dispatched to help the foreign government. EPA lead domestically under CERCLA. Will likely effect multiple EPA Regions. Only one OSC per incident (b) NRT designates the OSC if the two RRTs can t agree who provides the OSC. CERCLA response is mostly discretionary. Can the government go a different route? We did for Fukushima 15 th Annual OSC Readiness Training Program 17

19 Thanks for your support! 15 th Annual OSC Readiness Training Program 18