United States Environmental Protection Agency Office of Solid Waste and by mcmust


									                              United States                     Office of Solid Waste               EPA 550-F-00-009
                              Environmental Protection          and Emergency Response              July 2000
                              Agency                            (5104)                              www.epa.gov/ceppo/

                              FIRST RESPONDERS’
                              LIABILITY DUE TO MASS
                              The Environmental Protection Agency (EPA) is issuing this alert as part of its ongoing effort to
                              provide information on environmental issues related to biological, chemical, and nuclear terrorist
                              incidents. EPA publishes Alerts to increase awareness of possible hazards and environmental
                              concerns. It is important that SERCs, LEPCs, emergency responders and others review this
                              information and take appropriate steps to minimize risk.

                             PROBLEM                                           and frequently is discussed in the
                                                                               hazardous materials response community.
                             On April 19, 1999, the Team Leader
                             of the Chemical Weapons Improved                  THE NERVE AGENT DRILL
                             Response Team (CWIRT), U.S.
                             Army Soldier and Biological                       The federal government recently
                             Chemical Command sent a letter to                 sponsored a multi-agency drill based on a
                             EPA raising issues concerning first               simulated nerve-agent attack. The release
                             responders’ liability during a                    of the nerve agent resulted in hundreds of
                             weapons of mass destruction                       simulated casualties who survived the
                             (WMD) terrorist incident.                         initial terrorist attack. The hazmat team
                             Specifically, the CWIRT asked                     had to rescue and decontaminate these
                             about the first responders’ liability for         “survivors” before they could receive
                             spreading contamination while                     medical attention. The hazmat team
                             attempting to save lives.                         identified the need to collect the water
                                                                               used to decontaminate the victims

                           Environmental liability resulting from              (deconwater) to avoid a release to the
                           critical lifesaving actions may seem                environment. During the drill, these very
                           unlikely, but could be a serious                    capable, well-equipped, well-intentioned,
                           concern for many first responders.                  professional hazmat teams delayed their

                           The question is: Can emergency                      initial entry for more than one hour,
                           responders undertake necessary                      awaiting the arrival and set-up of pools to
                           emergency actions in order to save-                 collect the deconwater. While the actor-
                           lives in dire situations without fear of            survivors were dying a slow, painful,
                           environmental liability even when                   convulsive death, state and federal officials
                           such emergency actions have                         were debating and insisting that
                           unavoidable adverse environmental                   deconwater had to be collected for proper
                           impacts? This concern is not limited                disposal. By the time the rescuers set up
                           to WMD terrorist incidents, it has                  the holding pools and entered the site,
broad implications for our National Response System (NRS)                      nearly 90 minutes later, the “survivors”
First Responders’ Environmental Liability due to Mass Decontamination Runoff July 2000

 had expired. The contaminated water was           During a hazardous materials incident (including
 collected but the “victims” died.                 a chemical/biological agent terrorist event), first
                                                   responders should undertake any necessary
 GOOD SAMARITAN                                    emergency actions to save lives and protect the
 PROVISIONS                                        public and themselves. Once any imminent
                                                   threats to human health and live are
 The Comprehensive Environmental Response,         addressed, first responders should
 Compensation, and Liability Act (CERCLA),         immediately take all reasonable efforts to
 Section § 107 (d) Rendering Care or Advice,       contain the contamination and avoid or
 addresses this issue. Section 107 (d) (1),        mitigate environmental consequences. EPA
 often known as the “good Samaritan”               will not pursue enforcement actions against state
 provision states: “No person shall be liable      and local responders for the environmental
 under this sub chapter for costs or damages as    consequences of necessary and appropriate
 a result of actions taken or omitted in the       emergency response actions. First responders
 course of rendering care, assistance, or advice   would not be protected under CERCLA from
 in accordance with the National Contingency       intentional contamination such as washing
 Plan (NCP) or at the direction of an on-scene     hazardous materials down the storm-sewer
 coordinator appointed under such plan, with       during a response action as an alternative to
 respect to an incident creating a danger to       costly and problematic disposal or in order to
 public health or welfare or the environment as    avoid extra-effort.
 a result of any releases of a hazardous
 substance or the threat thereof.” This            OTHER LIABILITY ISSUES AND
 provision does not preclude liability for costs   STATE TORT LAWS
 or damages as a result of negligence.
 Releases of chemical and biological warfare       EPA cannot prevent a private person from filing
 agents due to a terrorist incident are            suit under CERCLA. However, first responders
 considered hazardous materials incidents and      can use CERCLA’s Good Samaritan provision
 therefore CERCLA §107 (d) (1) could apply,        as defenses to such an action. First responders
 to the extent that there is a release or          could also be subject to actions under other
 threatened release of a hazardous substance.      laws, including state tort laws. A state’s tort law
                                                   allows individuals and businesses to seek
 In addition, §107(d)(2) provides that state and   compensation for losses or harm caused by
 local governments are not liable under            another. The extent of tort liability of a state or
 CERCLA “as a result of actions taken in           local governmental jurisdiction, as well as
 response to an emergency created by the           individual employees or representatives of that
 release or threatened release of a hazardous      jurisdiction, is established by the tort law of each
 substance generated by or from a facility         state. The liability of governmental jurisdictions
 owned by another person.” Section 107(d)(2)       and their employees may be shaped by factors
 would insulate state and local governments        such as negligence, statutory and discretionary
 from potential CERCLA liability arising from      immunity, etc. First responders should
 first responder actions. However, the             consult legal counsel in their state to
 provision does not apply to costs or              discuss authority, status as an agent of the
 damages caused by “gross negligence or            state, immunities, and indemnification.
 intentional misconduct by the state or
 local government.”

Chemical Emergency Preparedness and Prevention Office
First Responders’ Environmental Liability due to Mass Decontamination Runoff July 2000

 FEDERAL SUPPORT DURING                             conducted.
                                                    PRE-PLANNING IS KEY!
 Contaminated runoff should be avoided
 whenever possible, but should not impede           It may not be technically feasible to contain all
 necessary and appropriate actions to protect       the runoff resulting from a WMD incident, but
 human life and health. Once the victims are        emergency responders may be able to reduce its
 removed and safe from further harm and             impact to the environment by pre-planning.
 the site is secured and stable, the first          Responders can maximize local resources by
 responders should be doing everything              using existing response mechanisms as much as
 reasonable to prevent further migration of         possible. Local Emergency Planning
 contamination into the environment.                Committees (LEPCs) are a good starting point.
                                                    LEPCs are established under the Emergency
 First responders should involve state and          Planning and Community Right-to-Know Act to
 federal officials as soon as possible to reduce    develop local governments’ emergency response
 potential liability concerns. Under CERCLA,        and preparedness capabilities through better
 the Federal On-Scene Coordinator (FOSC)            coordination and planning, especially within the
 can determine which environmental regulations      local community. LEPCs include elected
 are applicable (or relevant and appropriate) to    officials, police, fire, civil defense, public health
 any removal response and may further               professionals, environmental, hospital and
 determine that any such environmental              transportation officials, who can work together
 regulation is impracticable to achieve             creatively using available resources to minimize
 depending on the exigencies of the situation. If   the environmental impact of WMD incidents.
 the FOSC determines that it is impracticable
 to comply with any particular environmental
 regulation, then the responders (local, state,       For More Information..............
 Federal or responsible party) do not have to
 comply with that particular environmental
 regulation. By involving FOSC, first
 responders can substantially reduce their           Contact the Emergency Planning and
 potential liability.                                Community Right-to-Know Hotline

 In addition, FOSCs have an expanse of               (800) 424-9346 or (703) 412-9810
 resources under the NRS to support state and        TDD (800)553-7672
 local responders in determining a solution
 which best addresses protectiveness of human        Monday -Friday, 9 AM to 6 PM, EASTERN
 health and the environment. Under the NRC,          TIME

 the FOSC can provide invaluable assistance in
 determining clean-up and decontamination                              ———
 needs, health criteria and appropriate clean-up     Visit the CEPPO Home Page on the
 protocols as needed. FOSC support is even                    World Wide Web at:
 more critical in the aftermath of a WMD                      http://www.epa.gov.ceppo/
 terrorist attack when critical post-emergency
 actions such as agent identification, crime
 scene sampling, crime scene preservation, and
 long-term risk evaluation are also being

Chemical Emergency Preparedness and Prevention Office

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