A Compendium of Best Practices and Lessons Learned for Improving Local Community Recovery from Disastrous Hazardous Materials Transportation Incidents (2012)

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12 2.1 Overview The purpose of this section is to identify roles and responsibilities, along with processes, procedures, and compliance requirements related to community recovery from a hazardous materials transportation incident. This information is presented to assist local communities in developing the authorities and references section of their recovery plans. The primary focus is on federal agency roles and responsibilities because these apply to all incidents. At the state and local levels, the roles and responsibilities of specific agencies will need to be defined during the planning process and ideally should be compatible with those presented here for federal agencies. As a community is impacted by the consequences of a hazardous materials transportation incident, the local governing jurisdiction(s) will be the first to respond, begin containment, and implement safety measures at the incident site. As a part of that response, there is the potential for significant involvement from industry and the responsible party. These industry resources also bring access to a significant amount of technical knowledge, specialized equipment, and other resources that will be required by the incident. However, unlike other types of disasters that are managed by local government, hazardous materials incidents may ultimately become the responsibility of the federal government. Furthermore, depending on the nature of the materials involved, federal agencies may take a lead role in response, cleanup, and the transitional phase into recovery. These federal processes and procedures identify and explain the roles and responsibilities of local communities in sustaining recovery operations until the community has been restored to its pre-incident condition. Also, federal policies and regulations provide requirements, as well as guidance, ranging from specific details on how to manage the cleanup and disposal of con- taminated materials to highlighting key resources that state and local entities can access in the event of a hazardous materials transportation incident that exceeds the capacity and capabilities of the region.10 Many states have also mirrored the federal laws and, in some cases, added their own proce- dures to those required at the national level. This section reviews the federal laws that guide planning and recovery operations and applies to all jurisdictions. State, local, and tribal recovery plans state the authorities that empower the jurisdiction to develop plans and con- duct operations. Typically, the authorities and references section of a plan will list the federal laws, state statutes, local ordinances, appropriate regulations, policies, and executive orders for this purpose. In the pages that follow, the overarching federal laws that guide recovery planning and operations are presented to assist communities in developing this element of their plans. C H A P T E R 2 Roles and Responsibilities in Recovery

Roles and Responsibilities in Recovery 13 2.2 Federal Roles and Responsibilities in Hazardous Materials Incidents As stated by the EPA’s National Response Team (NRT), all significant oil discharges or hazard- ous substance releases must be reported (by local government or the responsible party) to the National Response Center (NRC). Many inland responses are effectively handled without any direct involvement by the federal government. Others require federal assistance when the inci- dent exceeds state and local capabilities. In other words, the federal government acts as a “safety net” for state, local, tribal, and private-party responders.11 EPA is the lead agency if the incident occurs on land. The United States Coast Guard (USCG) assumes this role if the incident occurs on the water. For incidents involving highways, rail lines, pipelines, and aircraft, the department of transportation will play a key role. In the case of a hazardous materials transportation incident, Emergency Support Function (ESF) 10 – Oil and Hazardous Materials Response will be activated and a federal on-scene coordinator (FOSC), gen- erally from either the EPA or USCG, will be assigned. The FOSC, a state representative, the local community incident commander, and the responsible party will form a unified command at the site to provide command and control for response and cleanup operations. At the local emergency operations center (EOC), a similar command structure is established to manage response and recovery operations, track the progress of response and resource deployment, and begin identifi- cation and prioritization of community needs and issues for transitioning into recovery. 2.3 Federal Statutory Authorities There are five laws in particular that provide guidance for dealing with hazardous materials. They are the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), Com- prehensive Environmental Response, Compensation, and Liability Act (CERCLA), Oil Pollution Act (OPA), Superfund Amendments and Reauthorization Act (SARA), and the Emergency Plan- ning and Community Right-to-Know Act (EPCRA, also known as SARA Title III). The Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA) and Resource Conservation and Recovery Act (RCRA) also have elements that are applicable to hazardous materials transpor- tation incidents. Other laws that are applicable to specific hazardous materials that may impact the environment and/or public health and welfare include, but are not limited to, the following: • Clean Water Act (CWA); • Clean Air Act (CAA); • Safe Drinking Water Act (SDWA); • Toxic Substances Control Act (TSCA); • National Environmental Policy Act (NEPA); • Migratory Bird Treaty Act (MBTA); • Fish and Wildlife Coordination Act (FWCA); • Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); and • Endangered Species Act (ESA). This report presents information on the five primary laws, supplemented with additional information about HMTUSA, RCRA, and the Robert T. Stafford Relief and Emergency Assis- tance Act (Stafford Act) as they relate to the focus of this report. The significant processes and procedures that are required by NCP, CERCLA, OPA, SARA, and EPCRA include • Notification of the NRC by local government or the responsible party in the event of a trans- portation incident involving a spill of hazardous materials;

14 A Compendium of Best Practices and Lessons Learned • Development of Hazardous Materials Response Plans and training of staff through Local Emergency Planning Committees (LEPCs) and State Emergency Response Commissions (SERCs); • The requirement for EPA to negotiate a settlement with the responsible parties following an incident; and • The development of a restoration plan that includes public participation by those involved in the recovery effort. In the following discussion of each major law, numerous references are made to hazardous materials waste sites, as well as closed and abandoned waste sites (especially as the discussion applies to CERCLA, SARA, and EPCRA). Although the laws are primarily aimed at these types of sites, the principles apply to hazardous materials transportation incidents, as well. As stated in the CERCLA/Superfund Orientation Manual, Superfund removal actions have occurred in response to transportation-related incidents that include . . . any release or potential release of hazardous substances due to a transportation situation, accident, or malfunction. (Local authorities usually respond to hazardous releases resulting from transportation- related incidents. The Superfund Program also has the authority to respond, if necessary, under the removal program to such emergencies.) 12 These pieces of legislation provide federal agencies with the authority to respond and take action related to releases or threatened releases of hazardous materials that pose a threat to human health and the environment. The implementation of these laws is seen in the federal government’s response to incidents such as the Exxon Valdez oil spill in Alaska (1989) and the British Petroleum (BP) Deepwater Horizon oil spill in the Gulf of Mexico (2010). Additionally, the parts of the laws relating to the financial liability of responsible parties and the establishment of trust funds to pay in the case where a responsible party cannot be identified are also applicable to transportation incidents involving hazardous materials. 2.3.1 National Oil and Hazardous Substances Pollution Contingency Plan This plan is described as follows: The National Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National Contingency Plan or NCP, is the federal government’s blueprint for responding to both oil spills and hazardous substance releases. The NCP is the result of efforts to develop a national response capability and promote overall coordination among the hierarchy of responders and contingency plans. The NCP also established the National Priorities List.13 The Plan • Requires the NRC, which acts as the central clearinghouse for all pollution incident reporting, be notified through a toll-free telephone number of any discharge or release of a hazardous substance; • Authorizes the pre-designated on-scene coordinator to direct all federal, state, and private response activities at the site of a discharge; • Establishes the unified command structure for managing responses to discharges; • Identifies the responsibilities of federal agencies that may be involved during response plan- ning and implementation to provide assistance; and • Authorizes the lead agency (EPA on land and USCG on water) to initiate appropriate removal action in the event of a hazardous substance release. First established in 1968, the NCP (40 CFR, Part 300) is the federal framework within the Code of Federal Regulations (CFR) for responding to both accidental and intentional (includ-

Roles and Responsibilities in Recovery 15 ing terrorist-related)14 releases of hazardous materials, including radioactive materials and oil spills.15 Although the most recent and widely publicized application of the NCP was in response to the Deepwater Horizon oil spill in 2010,16 the NCP was developed more than 4 decades ago in reaction to the 1967 Torrey Canyon supertanker accident off the coast of England.17 The coor- dinated approach set forth in the NCP was originally culled from lessons learned following this incident.18 NCP’s scope has expanded as required by various laws (with the latest revision in 1994), including the following:19 • CWA revisions that added a framework for responding to hazardous substance spills as well as oil discharges; • Superfund, which was passed in 1980 following well-publicized chemical contamination incidents including Love Canal in New York (1978) and Valley of the Drums in Kentucky (1979). The law broadened NCP to encompass release to any environmental media (air, water, land);20 and • Revisions based on oil spill provisions (after the Exxon Valdez oil spill in Alaska in 1989) fol- lowing the OPA. Specifically, as it relates to funding response and recovery, the application of CERCLA and OPA funds for site remediation are governed by the NCP.21 Additionally, actions required under NCP are binding and enforceable through the authorities within OPA and CWA. A significant component of the NCP was the establishment of the National Response System (NRS), which has handled more than 30,000 hazardous chemical releases, oil discharges, and other toxic spills in the United States to date. Representative response and recovery efforts that have been led or supported by the NRS include the following: • Anthrax incidents in public and government buildings (2001); • September 11 terrorist attacks (2001); • Space shuttle Columbia disaster (2003); • Hurricane Katrina (2005); • Exxon Valdez oil spill (1989); and • Deepwater Horizon oil spill (2010).22 Aspects of the NRS that are relevant not only to hazardous materials incident response but also extend through recovery include23 • National Response Team (NRT): The NRT is an interagency planning, policy, and coordi- nation organization that provides technical advice and access to resources and equipment. Following spills of national significance (SONS), the NRT is tasked with coordinating efforts of the U.S. Department of Homeland Security (DHS) and the Incident Advisory Council (IAC).24 Other roles include planning for and coordination of major discharges of oil or hazardous waste, guidance to Regional Response Teams (RRTs), coordination of national-level preparedness planning and response, and facilitating research geared toward enhancing response activities. The EPA serves as the lead agency for the NRT (40 CFR Part 300.110). • Federal On-Scene Coordinator (FOSC): As part of planning and preparedness, it is the responsibility of EPA and USCG to pre-designate regional FOSCs. Specifically, USCG must provide FOSCs for oil and/or hazardous materials releases in the water or within/near coastal zones, while EPA is responsible for FOSCs related to releases on land (40 CFR Part 300.120). In some cases, DOD or DOE may be responsible for providing FOSCs. The FOSC directs all federal, state, and private response activities at the site of a discharge per 40 CFR

16 A Compendium of Best Practices and Lessons Learned Part 300.135(a) and is required to submit reports to the RRT or NRT on all removal actions taken at an incident site (40 CFR Part 300.170, 40 CFR Part 300.175). • Regional Response Teams (RRTs): RRTs include a standing team of federal, state, and local representatives, and an incident-specific team (40 CFR Part 300. 115). There are 13 RRTs that are co-chaired year-round by EPA and USCG. However, during an incident, the agency pro- viding the FOSC is responsible for chairing the RRT. Although called “response” teams, RRTs do not respond to the incident. Instead, they serve in a support role to the FOSC for accessing and deploying regional resources.25 Additionally, RRTs develop Regional Contingency Plans (RCPs) to define and communicate the members’ roles, outline complex disaster coordination capacities, and specify funding mechanisms required during hazardous materials disasters. (Note: RCPs should not duplicate Area Contingency Plans, LEPC plans, or the NRF; however, they should leverage elements of these other plans.)26 Other teams available to the FOSCs under the National Response System with tasks that encompass response as well as recovery include Area Committees (ACs); Joint Response Teams (with neighboring countries and regulated industry); and the following EPA, USCG, and Occu- pational Safety and Health Administration (OSHA) special teams: 27 • EPA: Environmental Response Team (ERT), Radiological Emergency Response Team (RERT), National Counter Terrorism Evidence Response Team (NCERT), National Decontamination Team (NDT); • USCG Special Teams: National Strike Force (NSF), Public Information Assist Team (PIAT); and • OSHA: Specialized Response Teams. Additionally, the NCP identifies the statutory authorities of 15 federal agencies involved dur- ing response and recovery planning and implementation. Although other statutes and regula- tions provide further specification of federal roles and responsibilities, Table 2-1 summarizes the federal agency responsibilities designated under the NCP that relate to potential recovery planning and/or operations following a hazardous materials transportation incident. The NCP also established the National Priorities List (NPL), which identifies and prioritizes potentially significant locations throughout the United States and its territories that may be vul- nerable to known or threatened releases of hazardous substances, pollutants, or contaminants. The NPL is primarily a guide to EPA in determining which sites warrant further investigation. Sites are first proposed for the NPL in the Federal Register. EPA then accepts public comments on the sites, responds to the comments, and places those sites that continue to meet the require- ments for listing onto the NPL. 2.3.2 Comprehensive Environmental Response, Compensation, and Liability Act The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980. This law cre- ated a tax on the chemical and petroleum industries and provided broad federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. CERCLA also enabled the revision of the National Contin- gency Plan (NCP).28 The purpose of CERCLA is to address threats to human health or the environment resulting from releases or potential releases of hazardous substances. As stated in the EPA’s CERCLA/ Superfund Orientation Manual, the enactment of CERCLA provided the federal government “ . . . authority to take direct action or force the responsible party to respond to emergencies involving uncontrolled releases of hazardous substances.” CERCLA conferred this authority to

Roles and Responsibilities in Recovery 17 Federal Agency Federal Roles Designated under 40 CFR Part 300.175 Environmental Protection Agency (EPA) EPA chairs the NRT and co-chairs the standing RRTs. EPA provides OSCs for all inland areas for which an Area Contingency Plan (ACP) is required under the CWA. EPA supplies Remedial Project Managers (RPMs) for remedial actions and generally provides the Scientific Support Coordinator (SSC) for responses in the inland zone. EPA possesses expertise on human health and ecological effects, risk assessment methods, and environmental pollution control techniques, as well as legal expertise on the interpretation of CERCLA and other environmental statutes. Additionally, EPA may contract with states to implement response actions. United States Coast Guard (USCG) U.S. Coast Guard is responsible for providing the NRT vice chair, co-chair for standing RRTs, and pre- designated OSCs for the coastal zones. The USCG maintains continuously manned facilities; provides expertise in domestic and international fields of port safety and security, maritime law enforcement, ship navigation and construction; and mans, operates, and oversees the safety of vessels and marine facilities. Additionally, USCG may contract with states to implement response actions. Federal Emergency Management Agency (FEMA) FEMA offers guidance and technical assistance in hazardous materials, chemical, and radiological emergency preparedness activities (planning, training, and exercising). Department of Defense (DOD) DOD may take “all action necessary” when a release occurs on, and/or the sole source of the release is from, any facility or vessel under DOD jurisdiction, custody, or control. DOD may also provide locally deployed U.S. Navy oil spill equipment and other requested assistance. In particular: the United States Army Corps of Engineers (USACE) and the U.S. Navy Supervisor of Salvage (SUPSALV) can provide specific expertise and/or equipment during response and recovery. Department of Energy (DOE) DOE may provide OSCs in cases that involve any facility or vessel under its jurisdiction, custody, or control. The DOE Radiological Assistance Program Regional Offices can provide assistance for incidents that qualify for DOE radiological advice and assistance (including incidents involving sources, by-product, or special nuclear material or other ionizing radiation sources). United States Department of Agriculture (USDA) USDA provides scientific and technical expertise relevant to natural resources including soil, water, wildlife, and vegetation that have been impacted by emergencies caused by various factors including hazardous materials and/or fires. Selected components within USDA have specific areas of expertise. Those agencies include • Forest Service, • Agriculture Research Service (ARS), • Soil Conservation Service (SCS), • Animal and Plant Health Inspection Service (APHIS), and • Food Safety and Inspection Service (FSIS). Department of Commerce (DOC) through the National Oceanic and Atmospheric Administration (NOAA) NOAA provides scientific expertise during response and contingency planning in coastal and marine areas, including hazard assessments, trajectory modeling, and information on the sensitivity of coastal environments to oil and hazardous materials. NOAA also provides information on cleanup and mitigation methods specific to marine weather patterns and conditions as well as living resources (e.g., endangered species, marine mammals, and National Marine Sanctuary ecosystems). Department of Health and Human Services (DHHS) DHHS provides support related to assessment, preservation and protection of human health and helps ensure the availability of essential human services. DHHS components have specific areas of expertise, including • U.S. Public Health Service, as it relates to hazardous materials emergencies, primary resources are from Agency for Toxic Substances and Disease Registry (ATSDR) and the Centers for Disease Control and Prevention (CDC). CDC takes the lead during oil releases regulated under the CWA and OPA, while ATSDR takes the lead during hazardous materials releases under CERCLA. • Food and Drug Administration, • Health Resources and Services Administration, • Indian Health Service, • National Institutes of Health, and • National Institutes for Environmental Health Sciences (NIEHS). (Under Section 126 of SARA, NIEHS is given statutory authority for supporting development of curricula and model training programs for waste workers and chemical emergency responders. Under HMTUSA, NIEHS administers the Hazmat Employee Training Program to prepare curricula and training for hazardous materials transportation workers.) Table 2-1. Federal agency responsibilities as designated by the NCP. (continued on next page)

18 A Compendium of Best Practices and Lessons Learned the President who, in turn, issued Executive Order 12316 delegating primary responsibility to the EPA for managing activities under CERCLA. These activities include the following:29 • Site identification of potential or previous hazardous materials releases that pose a serious threat to human health, welfare, or the environment; • Taking action to remedy such releases; and • Ensuring that parties responsible for releases pay for the cleanup activities. Related to the cleanup of hazardous materials, CERCLA established the following: • Requirements related to closed and abandoned hazardous waste sites; • That the persons responsible for releases at these sites were liable; and • A trust fund to pay for cleanup when no responsible party can be identified. Response provisions under CERCLA focus on protecting human health and the environ- ment while authorities provided within the law allow for assessment and restoration of natural Federal Agency Federal Roles Designated under 40 CFR Part 300.175 Department of the Interior (DOI) DOI Regional Environmental Officers (REOs) are the designated members of RRTs. DOI land managers have jurisdiction and expertise related to the national park system, national wildlife refuges and fish hatcheries, public lands, and several water projects. Selected components within DOI have specific areas of expertise including • U.S. Fish and Wildlife Service (USFWS), • National Biological Survey, • U.S. Geological Survey (USGS), • Bureau of Land Management (BLM), • Bureau of Mines, Office of Surface Mining, • National Park Service (NPS), and • Bureau of Indian Affairs (BIA). Department of Justice (DOJ) DOJ can supply expertise on legal issues and, in addition, DOJ represents the federal government in litigation relating to releases or discharges. Department of Labor (DOL) through the Occupational Safety and Health Administration (OSHA) and state operating plans When requested, OSHA provides advice and consultation to EPA and other response agencies regarding hazards to persons engaged in response activities. OSHA may also take necessary action to assure that response personnel employees are properly protected. Department of Transportation (DOT) DOT possesses expertise related to hazardous materials transportation (including oil) by all modes of transportation. Through PHMSA, DOT offers expertise in the requirements for hazardous materials packaging, handling, and transport, and establishes oil discharge contingency planning requirements for pipelines, transport by rail and containers, or bulk transport. Department of State (DOS) DOS supports international joint contingency planning, helps coordinate responses that cross international boundaries or involve a foreign vessel, and supports foreign requests for assistance. Nuclear Regulatory Commission (NRC) In accordance with the NRC Incident Response Plan (NUREG0728), NRC assures that the public health and environment are protected and adequate recovery operations are instituted in the event of releases under its jurisdiction. NRC communicates any significant actual or potential releases to EPA. General Services Administration GSA supplies logistic and telecommunications support to federal agencies and can aid state and local (GSA) governments, as directed by other federal agencies, during disaster response and recovery. (SOURCE: 40 CFR Part 300.170, 40 CFR Part 300.175) Table 2-1. (Continued).

Roles and Responsibilities in Recovery 19 resources damaged as the result of a hazardous substance release.30 Specifically, as it pertains to recovery from hazardous materials transportation incidents, CERCLA’s provisions related to releases are applicable (while those provisions involving abandoned waste sites are not and are omitted from discussion in this report), including provisions specific to the liability of respon- sible parties and the establishment of a trust fund for remediation. CERCLA’s remedial actions entail a feasibility study, a design phase, and a remediation phase.31 Within this context, CERCLA authorizes • Short-term removals: Remedial actions to address releases or threatened releases requiring prompt response; and • Long-term remedial response: Actions that permanently and significantly reduce the dangers associated with releases that are serious, however, not considered immediately life threatening. (Note: Long-term remediation applies only to sites listed on the NPL.) 2.3.3 The Oil Pollution Act of 1990 The Oil Pollution Act (OPA) of 1990 streamlined and strengthened EPA’s ability to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. OPA requires oil storage facilities and vessels to sub- mit plans detailing how they will respond to large discharges. EPA has published regulations for above- ground storage facilities; the Coast Guard has done so for oil tankers. OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale.32 Established in the wake of the Exxon Valdez (1989) disaster, OPA included requirements for double-hulled tankers, escort tugs, and other safety measures; financial, civil, and criminal pro- visions, including fines and prison terms; and the creation of the Oil Spill Liability Trust Fund (OSLTF). Specifically, OPA requires entities identified as “responsible parties” following oil spills to cover all cleanup costs, including compensation for government efforts, economic damages incurred by residents and victims, and local business losses. Compensation may address lost wages, property damages, and harm to the local ecosystem. The 1990 legislation capped the liability of responsible parties as follows:33 1. Tank vessels: The greater of $1,200 per gross ton or $10 million for vessels larger than 3,000 gross tons, or $2 million for vessels of 3,000 gross tons or less; 2. Other vessels: $600 per gross ton or $500,000, whichever is greater; 3. Offshore facilities (except a deepwater port): The total of all removal costs plus $75 million; and 4. Onshore facilities and deepwater ports: $350 million. To assist in paying for oil spill cleanups and damages in cases where responsible parties are not identified or cannot pay, OPA established the OSLTF. Originally created by Congress in 1986, the fund did not have authority to use the money or collect necessary revenue until after the passage of OPA 4 years later. In addition to enabling OSLTF, OPA consolidated the liability and compen- sation requirements of other federal statutes including the following:34 • Federal Water Pollution Control Act (FWPCA), • Deepwater Port Act, • Trans-Alaska Pipeline System (TAPS) Authorization Act, and • Outer Continental Shelf Lands Act. By consolidating these statutes, as well as enforcing taxes on the petroleum industry, available funds increased to $1 billion and, in 2005, passage of the Energy Policy Act increased the size of the fund to $2.7 billion. As a result of CERCLA and OPA, natural resource damages (NRD) are among the significant recovery components addressed under federal statute. Both statutes define NRD, provide authority for natural resources damage assessments (NRDAs), and designate roles for EPA, USCG, and Natural Resource Trustees. The term Natural Resource Trustee is characterized in

20 A Compendium of Best Practices and Lessons Learned CERCLA and OPA as those designated with responsibility for the protection of natural resources based on the understanding that no individual or entity “owns” a natural resource. As such, CER- CLA and OPA provide authority for National Resource Trustees to ensure restoration of affected natural resources through NRDAs and the restoration of impacted resources caused by a release or discharge of hazardous materials. National Resource Trustees may be federal, state, or tribal officials, as well as officials from foreign governments (under OPA).35 By statute, the process of natural resource recovery is divided into the following three phases:36 • Pre-assessment phase: Prior to conducting an NRDA, natural resource injuries are investi- gated in order to determine if an NRDA is required. • Restoration planning phase: This phase includes NRDA either through Department of the Interior (DOI) methodologies (per 43 CFR Part 11) to assess damages that fall within CERCLA parameters or through the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) methodologies (per 15 CFR Part 990) to assess damages under OPA. Additionally, this phase involves developing detailed restoration plans and includes planning for compensation of victims. • Restoration phase: Responsible parties implement and/or fund the restoration plan. Although damages to natural resources have also resulted in direct economic losses and dis- rupted business activities (particularly related to industries and businesses that rely upon local natural resources), Natural Resource Trustees do not have authority related to economic losses caused by natural resource damages, such as the closure of fishing grounds, port operations, or loss of tourism-related businesses. This authority is further discussed within the context of CERCLA and OPA liability, compensation, and claims policies for potentially responsible parties (PRPs) and responsible parties.37 2.3.4 Superfund Amendments and Reauthorization Act The Superfund Amendments and Reauthorization Act (SARA) amended the Comprehensive Environ- mental Response, Compensation, and Liability Act (CERCLA) on October 17, 1986. SARA reflected EPA’s experience in administering the complex Superfund program during its first 6 years, and made several important changes and additions to the program. SARA (1) stressed the importance of perma- nent remedies and innovative treatment technologies in cleaning up hazardous waste sites; (2) required Superfund actions to consider the standards and requirements found in other and federal environmental laws and regulations; (3) provided new enforcement authorities and settlement tools; (4) increased state involvement in every phase of the Superfund program; (5) increased the focus on human health problems posed by hazardous waste sites; (6) encouraged greater citizen participation in making decisions on how sites should be cleaned up; and (7) increased the size of the trust fund to $8.5 billion. SARA also required EPA to revise the Hazard Ranking System (HRS) to ensure that it accurately assessed the relative degree of risk to human health and the environment posed by uncontrolled hazardous waste sites that may be placed on the NPL.38 In addition to increasing the Superfund trust fund to $8.5 billion, SARA added other improve- ments to the program that had a significant impact on every major action and authority. SARA strengthened the power of the following:39 • Removal actions – Short-term removal limits financed by the Trust Fund were raised to $2 million per year per incident, and all removal actions are required to be consistent with long-term remedial actions. • Remedial actions – New cleanup goals and schedules were established, including the comple- tion of preliminary assessments of sites, and deadlines were set for remedial work at priority sites. A preference was established for remedies that reduce the toxicity mobility or reduce the volume of waste through treatment as a primary function. Remedies selected must be cost-

Roles and Responsibilities in Recovery 21 effective and utilize permanent solutions where practicable. The statute established off-site land disposal without treatment as the least-preferred alternative. • Enforcement authorities – EPA’s use of settlement tools was increased to obtain agreements with potential responsible parties to pay for and/or perform cleanup activities. Criminal pen- alties were increased for failure to report releases, and it is a criminal offense to provide false or misleading information regarding releases. • State involvement – EPA was required to coordinate with the state during all phases of a response. • Public participation – Public participation in the planning for Superfund actions was required. Technical assistance grants are authorized to allow citizens to hire experts to explain the complexities of hazardous substance problems and the Superfund program at NPL sites. Records, as well as information documenting site information and response activity decisions, are made accessible to the public. • Research, development, and training – A research and development program was initiated to encourage coordinated and comprehensive research and development. Training programs for research and response were expanded. 2.3.5 The Emergency Planning and Community Right-to-Know Act The Emergency Planning and Community Right-to-Know Act (EPCRA), also known as SARA Title III, was enacted in October 1986. This law provides an infrastructure at the state and local levels to plan for chemical emergencies. Facilities that store, use, or release certain chemicals may be subject to various reporting requirements. Reported information is then made publicly available so that interested parties may become informed about potentially dangerous chemicals in their community. EPCRA requirements include (1) emergency planning notification (EPCRA §302); (2) emergency release notification (EPCRA §304); (3) hazardous chemical inventory reporting (EPCRA §§311/312); and (4) Toxics Release Inventory (TRI) reporting (EPCRA §313). EPCRA §§301-312 are administered by EPA’s Office of Emergency Management (OEM). EPA’s Office of Information Analysis and Access (OIAA) implements the EPCRA §313 program.40 One of the significant results of EPCRA was the establishment of LEPCs and SERCs to plan for the emergency response to, and recovery from, hazardous materials incidents. The LEPCs may develop community stand-alone hazardous materials incident response plans or assist with other hazardous materials management. 2.3.6 Hazardous Materials Transportation Uniform Safety Act of 1990 The Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA), Section 117, evolved from the emergency preparedness proposal developed by DOT, FEMA, EPA, DOL, and DOE during the legislative process to reauthorize the Hazardous Materials Transportation Act of 1975. The require- ments of the HMTUSA were designed to allow the federal government to provide national direction and guidance to enhance hazardous materials emergency preparedness activities at the state and local levels. This is accomplished by ensuring comprehensive, integrated and coordinated planning, training, and technical assistance programs. Section 117, Public Sector Training and Planning, was specifically crafted to build upon and enhance the existing framework and working relationships established within CERCLA/Superfund for the NRT, RRTs, and the Title III State Emergency Response Commissions.41 HMTUSA required that grant money be provided to LEPCs for • Planning grants to develop, improve, and implement SARA Title III local emergency response plans and to determine the need for regional hazardous materials emergency response teams. • Training grants for training of public-sector employees in hazardous materials response. This grant could be used for training to respond to hazardous material waste sites and other train- ing activities. These grants are based on a 75 percent federal cost share and are managed by the Hazardous Materials Emergency Preparedness (HMEP) grant program, PHMSA, U.S. DOT.

22 A Compendium of Best Practices and Lessons Learned 2.3.7 Resource Conservation and Recovery Act (RCRA) Overall requirements for debris management resulting from disasters/hazardous materials incidents fall under the Resource Conservation and Recovery Act (RCRA), 1976. RCRA gives EPA the authority to control hazardous waste from “cradle to grave.” This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also sets forth a framework for the management of non- hazardous solid wastes. The 1986 amendments to RCRA enabled EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances. The federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to RCRA that focused on waste minimization and phasing out land disposal of hazardous waste, as well as corrective action for releases. Some of the other mandates of this law include increased enforcement authority for EPA, more stringent hazardous waste management standards, and a comprehensive underground storage tank program.42 From a hazardous materials incident or natural disaster perspective, RCRA provides the guid- ance and requirements for dealing with debris generated by the incident. When dealing with natural disasters, FEMA has addressed the problems attendant to managing the quantity of debris that can be generated by a flood, hurricane, earthquake, or other type of disastrous event through development of the Public Assistance Debris Management Guide, FEMA 325. Following a transportation incident involving hazardous materials, appropriate debris dis- posal is a critical concern. RCRA requires that a debris storage and reduction site, also called a debris management site, be established to separate the various types of debris generated by the incident. For debris that has been contaminated, RCRA provides procedures for decontaminat- ing that debris, packaging it, and disposing of it. FEMA 325 provides this information for use both in planning and operations. RCRA requirements include the following: • Establishing a storage and reduction site, • Decontaminating debris at the storage and reduction site, and • To the extent possible, recycling debris. 2.3.8 Robert T. Stafford Relief and Emergency Assistance Act The foremost federal legislation relating to disaster response and recovery is the Robert T. Stafford Relief and Emergency Assistance Act. The Stafford Act, 42 U.S.C. §5121 et seq. as amended, authorizes financial and other forms of assistance to state and local governments and certain private nonprofit organizations to support response, recovery and mitigation efforts following presidentially declared major disasters and emergencies. The Stafford Act describes the declaration process, the types and extent of assistance that may be provided, and fundamental eligibility requirements.43 As a rule, the Stafford Act does not apply to hazardous materials incidents because these are the responsibility of another federal agency (EPA for a land-based incident; USCG if on water). As noted in Section 206.226(a)(1) of 44 CFR, “generally, disaster assistance will not be made available under the Stafford Act when another federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.” However, the President of the United States has the discretion to declare a disastrous hazard- ous materials transportation incident either an emergency or a major disaster, provided the responsible federal agency and/or the responsible party has fully expended their available funds. Because of this potential, this report also addresses the Stafford Act. The following definitions of emergency and major disaster are taken directly from the Stafford Act, Section 102, Definitions.44 (1) Emergency means any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect

Roles and Responsibilities in Recovery 23 property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. (2) Major disaster means any natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snow- storm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and mag- nitude to warrant major disaster assistance under this act to supplement the efforts and available resources of states, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby. Under the declaration process, a state requests a declaration of major disaster or emergency through FEMA. FEMA reviews the impacts and available state and local resources and then makes a recommendation to the President. The President can then either act on, or decline to act on, a recommendation to declare from FEMA. The level of assistance that can be provided through FEMA during a major disaster is described in Section 403 of the Stafford Act. This covers (1) emergency work to preserve public health and safety during a disaster; (2) debris operations, including demolition of unsafe structures that pose a threat to public health and safety; (3) the provision of temporary facilities for schools and community essential services; (4) technical advice to state and local governments on disaster management and control; and (5) provision of rescue, care, shelter, and essential needs. The level of assistance that can be provided through FEMA during an emergency is described in Section 502 of the Stafford Act and allows the President to authorize assistance to provide tech- nical and advisory assistance to states and local governments affected by the emergency, remove debris, and provide assistance to individuals and businesses. Sections 403 and 502 of the Stafford Act are applicable only during a presidentially declared major disaster or emergency. The presi- dential declaration will define the types and levels of assistance that are authorized.