USCG Federal On-Scene Coordinator Rep.: Jurisdiction & Authority

US Coast Guard Federal On-Scene

Coordinator Representative:

Jurisdiction and Authority Review

1

What would you do?

2

A large fishing vessel at a publicly owned dock is undergoing

internal reconstruction.

You receive a report that debris is being dumped.

3

A 60’ sailing vessel is grounded on a beach near a military installation.

The O/O has no money and no commercial assistance company will respond.

The beach is a nesting area for a federally endangered bird species.

4

An truck hauling molten asphalt overturns into a tidally influenced

lagoon.

State officials are on-scene, driver has been killed and the company does

not have resources available to conduct removal operations.

5

A future US Navy vessel is being built in your Port.

An 1800 gallon fuel spill occurs during internal fuel systems testing.

During your initial investigations you discover over 15 internal transfer

spills over the last 2 years.

6

What we said we could do...

7

What the public heard...

8

Learning Objectives

Clean Water ActCERCLA/SUPERFUND

Oil and Hazardous Substances National Pollution Contingency Plan

Legal PrinciplesStatutory

Nomenclature

Enforcement

9

Current FOSCR PQS

Minimally Qualified

Training & Experience

Making the Polluter Pay

Teaching to PQS is

prohibited

10

What’s next?

PQS Review

Legal Specifics: CERCLA* & OPA

COMDTINST M16465.29 released 25May83, still valid

*Reference sections within M16465.29

11

Part I: Federal Environmental Response Law

Environmental Response and Spill Management Authorities for Coast Guard FOSC-Rs

12

Environmental Law is an organized way of using all of

the laws in our legal system to minimize, prevent, punish, or

remedy the consequences of actions which damage or

threaten the environment, public

health, and safety.13

Environmental Law Framework

US Constitution

Treaties

Federal Statutes

Federal Regulations

State Statues

State Regulations

Local City/County/Parish laws, ordinances and regulations

Case Law (separate hierarchy)

14

Non-interchangeable legal terminology

Hazard

ous Su

bstanc

es

40 CFR

302.4

Hazardous Materials49 CFR 105

Hazardous Waste

40 CFR 260

15

Strict Liability:liability for damages to persons or property can

be imposed without requiring a showing negligence

Negligence: Failure to exercise due care; doing something that

a reasonable and prudent man would not do

16

Environmental Law Enforcement

Compliance Education

Regulatory Inspector

Environmental Health Officer

Civil Investigator

17

Public Welfare Offense Doctrine

18

Responsibility

Authority to prevent

Ability to remedy

IntentKnowledge of regulation

19

In what ways does the Public Welfare Offense Doctrine

differ from traditional law enforcement?

20

What does this mean for the regulated community?

21

FOSC Authority

one Strategy:

Protect human health, welfare and the environment from spills of oil

and hazardous substances

five Tactics:

Education, Preparedness, Response, Investigation and Enforcement

22

You are the regulator:

always self-verify RP actions

FOSC Authority

FOSCR shall:

hold regulated community responsible

Conduct swift, thorough, fair and

consistent enforcement actions

23

FOSC Authority Monthly Review of Area Contingency Plans

Establish Marine Environmental Task Force

Compile stats and present at local non-profits

Meet and ‘play’ with state and local regulators, environmental responders, district attorneys

Conduct regular spot inspections

Issue Sector policy letters that assists regulated community with compliance

Advertise your work externally

24

OPA v. CERCLAResponse Concepts CWA/OPA90 CERCLA

ResponseLanguage

How clean is clean?

Funding Restrictions

Liability

Discharge to Navigable waterway: Five elements

Release to Environment:Imminent and substantial

endangerment

Straight-forward determination

Applicable, relevant and appropriate requirements

(ARARs)

RestorationVessel destruction*

Chemicals containing oils

LPG/LNG &Petroleum Exclusion

Owner/Operator only liability

Joint, strict, several and retroactive liability

25

Give safety and human health top priority during every response action.

Stabilize the situation in order to prevent the event from worsening.

Use all necessary containment and removal tactics in a coordinated manner to ensure timely, effective

response.

Take action to minimize further environmental impact from additional

discharges.

Read th

e NCP!!

26

40 CFR 300.120

Directs response efforts

Supervises the ACP development

Designated persons to act as

on-scene reps are trained

27

40 CFR 300.120

Coordinate, direct and review the work of other agencies, Area Committee members, and contractors to ensure compliance with

NCP and other plans applicable to response

28

Notification Req

uirements

Notice of an oil discharge (33 CFR 153.203) or hazardous

substances release (40 CFR 302) in an amount equal to or greater

that the reportable quantity must be made immediately.

What is immediately?

When would the RP be

considered negligent in

reporting?

29

Notification Req

uirements

40CFR110.6Notification of a discharge of oil in a harmful quantity must be made to NRC as soon

as RP has knowledge.

40CFR117.21Notification of a discharge of a designated hazardous substance in a harmful quantity must be made to the appropriate agency as soon

as RP has knowledge.

40CFR302.6Notification of a release of a hazardous substance in an amount over the reportable quantity must be made to the NRC as soon as RP has knowledge. No exceptions.

30

Clean Water Act &

the NCP31

Phase I:Discovery & notification

Phase II:Preliminary assessment and initiation of action

Phase III:Containment, countermeasures, cleanup, & disposal

Phase IV:Documentation & cost recovery

Oil Spill Removal Action

32

Federal Water Pollution Control Act &Clean Water Act: A Review

Objective:To restore and maintain

the chemical, physical,

radiological, and biological

integrity of the

Nation’s waters

Goals:...eliminate discharges

into navigable waters

(by 1985)

33

Strict Liability:liability for damages to persons or property can

be imposed without requiring a showing negligence

Negligence: Failure to exercise due care; doing something that

a reasonable and prudent man would not do

34

What is a pollutant?

35

Dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological

materials, radioactive materials, heat,

wrecked or discarded equipment, rock,

sand, cellar dirt and industrial, municipal,

and agricultural waste*

*Does not include sewage from vessels

36

identify when you may

assert CWA authority:

37

38

39

40

41

42

43

44

Zero discharges by 1985

Authority to initiate a removal action

Take action to protect environment

Use Administrative Orders to compel RP

REMEMBER

45

FWPCA/CWA Liability

For Owner and/or Operator

It doesn’t matter that:

It was an accident

It was not their fault

They responded quickly

46

Overall RP response actions may contribute to the decision of potential enforcement action

Liability attaches regardless of

circumstances

Do not confuse cooperation and/or cost

recovery with enforcement

47

www.epa.gov/ost/rules/UNDS/unds.bah.com (no www)

GOT NAVY?

Uniform National Discharge StandardsJoint DOD (USN)/EPA rules

§ 312 preempt state standards48

http://www.epa.gov/ost/rules/UNDS/

http://www.epa.gov/ost/rules/UNDS/

Sewage,Greywater,MARPOL?49

CERCLA &the NCP

50

CERCLA Specific CG

Policy

C0MDT INST 16465.29/30

Only CG CERCLA Policy (1983)16465.29 still valid and correct

Instrument of Redelgation

Limits CG CERCLA involvement

D1 CERCLA Decision Memo

Coast Guard CERCLA example

51


Limits CG CERCLA involvement52

CERCLA Specific CG

Policy

C0MDT INST 16465.29/30






53

C0MDT INST 16465.29/30


54

CERCLA Specific CG

Policy

C0MDT INST 16465.29/30






55


Coast Guard CERCLA example56

CERCLA Paradigm

Intended to complement RCRA and close legal loopholes

Unprecedented enforcement and liability provisions

Comprehensive method to

address uncontrolled

hazardous-waste sites

57

CERCLA Hazardous SubstanceS

TSCA Imminently hazardous substances

EPA Title III List of Lists

CERCLA hazardous substances

RCRA hazardous wastes

CWA hazardous substances & toxic pollutants

CAA Hazardous air pollutants

EPCRA§313 Toxic

Chemicals

58

Phase I:Discovery & notification

Phase II:Removal Site Evaluation: PA/SI

Phase III:Removal Action(s)

Phase IV:Remedial Site Evaluation

Phase V:Establishing Remedial Priorities

Phase VI:Remedial Investigation

Phase VII:Remedial Action(s)

Phase VIII:Procedures for Planning & Implementing

Off-site Response ActionsPhases of Hazardous

Substance Incident

59

60

61

CERCLA Emergency Response &

Removal Action:Important Concepts

62

Pollutant or Contaminant

Such substances will or may reasonably be anticipated to cause certain specified harmful health effects

‘a release or substantial threat of release … of any pollutant or contaminant which may present an imminent and substantial danger to public health

or welfare…’

63

29G

uide

: 3-

D-1

,2,3

pg.

3-8,

9

64

Substantial Threat

Threat of release judgment is critical element in

determination

Determining substantial threat is the

F0SCs responsibility

65

29Guide: 3-E pg. 3-10,1166

Need for Prompt Action

Act in conservative favor of

protecting human health,

welfare and the environment

CG actions under CERCLA involve ‘EPA hand-off’ evaluation

67

68

harm warranting removal

Criterion for determining what

requires removal: Imminent and

Substantial Endangerment

Conditions vary widely during incident response

69

29Guide: 4-A-2.a-c. pg. 4-1,270

71

Acting in Doubt

An F0SC need not determine

with certainty that a hazardous

substance has been released

before initiating removal measures

72

29Guide: 4-B pg. 4-273

Pollution Report

Incident Specific Action Plan Statement of Work

Finding of Imminent and Substantial Endangerment

Documenting CERCLA Decisions

74

CERCLA and NCP based documentation

Action Memorandum: Every EPA FOSC must do an action memo for removal actions

Action Memo required ≥$250K

Documenting CERCLA Decisions

75

Appropriate Extent of removal(4-D pg. 4-3)

Degree of Harm

Applicable or Relevant and Appropriate Requirements (§121)

Any standard, requirement, criteria, or limitation under any

environmental law or state environmental or facility siting law that is

more stringent

How Clean is Clean?

76

Protect human health and environment

from improper waste disposal

Conserve energy and natural resources

through recycling and recovery

Reduce the amount of waste generated

Ensure wastes are properly managed

RCRA (42USC §6901)Congressional Intent

77

RCRA: Our Comprehensive national

waste management program

78

The Solid Waste Disposal Act of 1965 and its Amendments

79

Cradle to grave

Active facilities

Generate

hazardous waste

80

RCRA at Federal Facilities

Public

Vessel Exempt

ion

transferred or offloaded to a shore facility

Military Munitions Rule

Applies to ‘unserviceable munitions’

Regulators a

re em

powered t

o use

enforcem

ent tools against

federal facilities

Federal Employee Protection

and Exposure

Protects employees from personal liabilities yet are subject to all laws

81

Divided into 10 subtitles A-J

Solid Waste (Subtitle D)Hazardous Waste (Subtitle C)

Underground storage tanks (Subtitle I)

RCRA Im

plementation

RCRA is not a self-implementing statuteExtensive regulation

40 CFR 261-299

82

RCRA may apply if...generate, transport,

store, treat and/or

dispose of...

...solid, special and/or

hazardous wastes

83

RCRA

Sub

title C

Identification

Management

Corrective Action84

RCRA hazardous waste requirements will change based

on activities

85

Generators

Identify hazardous wasteslisted or characteristic

Contain, store, label properly

Obtain generator EPA ID#

Prepare manifests

86

Transp

orters

Obtain EPA and State ID

Secure and store properly

Hazardous Waste Manifest*

DOT 49CFR

87

TSDFPerformance Standards

Permitting

88

Interim status prior to permitting

Delegates RCRA program to states*

(Alaska & Iowa)

Authorizes site inspections & enforcement

Groundwater monitoring

Air emission controls

Corrective actions

Land disposal prohibition*

*for untreated HW

Performance StandardsPermitting

89

Uniform Hazardous Waste Manifest

90

91

92

Transporter Requirements

Hazardous waste can hold at transfer

facility for 10 days without permitting

Engaged in the off-site

movement of hazardous waste

by air, rail, highway or water

93

Implications for transporter definitions ‘on-site’ & ‘off-site’

Along roadway v. across public or private right of way

Transporters Generators

Mixed wastes of different DOT classes

Accumulates waste

Liable for spill response

94

RCRA Challenges

regulated community

Use innovative and emerging technologies, as well as modifications to production processes and raw materials

Incentivizes not producing waste of any kind

95

Referring cases CG may refer cases to EPA:

Develop relationshipInitiate interaction early

29 Guide: 4-F-1,2,3,4 pg. 4-8,996

CERCLA ADMIN Order

Unilateral Administrative Orders:Largest contributors of waste

Financially viableSubstantial evidence of liability

Failure to comply

Conditions for Issuance:(Read: 5-A-1 pg. 5-1)

Releases from vessels-Case Law Exception-

97

Defenses to Admin orders and liability98

CERCLA §107 Liability Scheme

Strict, Joint and Several, and Retroactive

Public Welfare Offense Doctrine

99

USCG: Discharges of oil; release of hazardous substances, pollutants and/or contaminants into the environment

in the coastal zone

US EPA: Discharges of oil; release of hazardous substances, pollutants and/or contaminants into the environment

in the inland zone100

Department of Defense: Discharges of oil; release of hazardous substances, pollutants and/or contaminants into the environment from military operated facilities, installations, munitions and/or military vessels (COI required)

101

Department of Energy: Discharges of oil; release of hazardous substances, pollutants and/or contaminants into the environment from DOE facilities or non-DOD radiation sources

102

Sources of FOSC Authority

Federal Water Pollution Control Act as amended by Clean Water Act and Oil Pollution Act

Comprehensive Environmental Response, Compensation, and Liabilities Act as amended by Superfund Amendments and Reauthorization Act

40CFR300 & 33CFR

MSM Volume 9, Chapter 5 (outdated), M16465.29

103

33 CFR 6.04-5 (Super-6)The COTP may prevent any person, article, or

thing from boarding or being taken or placed on board any vessel or entering or being taken into

or upon or placed in or upon any waterfront facility whenever it appears that such action is necessary in order to secure such vessel from damage or injury or to prevent damage or injury to any vessel, or waterfront facility or waters

or the US, or to secure the observances of rights and obligations of the US.

COTP Authority

104

FOSC v. COTPCOTP can take possession of vessels

FOSC may enter private property

FOSC may obtain Admin Order

Preventing access of personnel to vessels or waterfront facilities

105

FOSC v. COTP

33CFR160 subpart B: The vessel or any transfer can be stopped if...

FOSC entry onto private property

29Guide: 6-A-1, 2, 3, 4 pg. 6-1, 2

Controlling vessel and facility ops

106

FOSC v. COTP

33CFR6.04-8 and 33CFR160 subpart B

Control of Private Activities and Property

29Guide: 6-C-1, 2 pg. 6-2, 3

Controlling vessel movement

107

During preparedness planning or in an actual response, various federal agencies may be called upon to provide assistance in their

respective areas of expertise…consistent with agency legal authorities and capabilities.

40CFR300.175

108

COTP May enlist the aid and cooperation of federal, state, county, municipal, and

private agencies to assist in the enforcement of regulations of 33 CFR 6.04-11

109

Safety Zones

Guidance for drafting a Safety Zone or COTP Order can be found in Marine Safety Manual vol. VI and 33 CFR 165.5

Safety Zones protects the area outside

the zone from danger within the zone.

Security Zone protects the area inside the

zone from danger outside zone.

110

Flight Restriction Zone

0btained via FAA by coordinating

with local CG AirSta/Sector

Difficult to justify and obtainEnforcement conducted by FAA

111

DrafT: COTP Order

COTP orders enforce Super 6 authorities

COTP Order designed to restrict activities

CANN0T be used to compel

clean-up activities

112

DrafT: ADMIN Order

Clean-up and abatement document:RP conducts clean-up ops with timeframes

IAW the NCPViolation of order: Defaults to F0SC

113

Use NCP language to document:Decisions

Environmental damagePublic health/welfare threat

Respond in conservative favor of

protecting Human Health,

Welfare and the Environment

114

QUESTIONS?115