United States
                        Environmental Protection
                        Agency
Office of Solid Waste
and Emergency Response
(5104)
EPA550-F-00-009
July 2000
www.epa.gov/ceppo/
                        FIRST  RESPONDERS'
                        ENVIRONMENTAL
                        LIABILITY  DUE TO  MASS
                        DECONTAMINATION
                        RUNOFF
                        The Environmental Protection Agency (EPA) is issuing this alert as part of its ongoing effort to
                        provide information on environmental is sues 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

                       On April 19, 1999, the Team Leader
                       of the Chemical Weapons Improved
                       Response Team (CWIRT), U.S.
                       Army Soldier and Biological
                       Chemical Command sent a letter to
                       EPA raising issues concerning first
                       responders' liability during a
                       weapons of mass destruction
                       (WMD) terrorist incident.
                       Specifically, the CWIRT asked
                       about the first responders' liability for
                       spreading contamination while
                       attempting to save lives.

                       Environmental liability resulting from
                       critical lifesaving actions may seem
                       unlikely, but could be a serious
                       concern for many first responders.
                       The question is: Can emergency
                       responders undertake necessary
                       emergency actions in order to save-
                       lives in dire situations without fear of
                       environmental liability even when
                       such emergency actions have
                       unavoidable adverse environmental
                       impacts?  This concern is not limited
                       to WMD terrorist incidents, it has
broad implications for our National Response System (NRS)
           and frequently is discussed in the
           hazardous materials response community.

           THE NERVE AGENT DRILL

           The federal government recently
           sponsored a multi-agency drill based on a
           simulated nerve-agent attack. The release
           of the nerve agent resulted in hundreds of
           simulated casualties who survived the
           initial terrorist attack. The hazmat team
           had to rescue and decontaminate these
           "survivors" before they could receive
           medical attention. The hazmat team
           identified the need to collect the water
           used to decontaminate the victims
           (deconwater) to avoid a release to the
           environment. During the drill, these very
           capable, well-equipped, well-intentioned,
           professional hazmat teams delayed their
           initial entry for more than one hour,
           awaiting the arrival and set-up of pools to
           collect the deconwater. While the actor-
           survivors were dying a slow, painful,
           convulsive death, state and federal officials
           were  debating and insisting that
           deconwater had to be collected for proper
           disposal. By the time the rescuers set up
           the holding pools and entered the site,
           nearly 90 minutes later, the "survivors"

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 First Responders' Environmental Liability due to Mass Decontamination Runoff  July 2000
  had expired.  The contaminated water was
  collected but the "victims" died.

  GOOD SAMARITAN
  PROVISIONS

  The Comprehensive Environmental Response,
  Compensation, and Liability Act (CERCLA),
  Section § 107 (d) Rendering Care or Advice,
  addresses this issue.  Section 107(d)(l),
  often known as the "good Samaritan"
  provision states: "No person shall be liable
  under this sub chapter for costs or damages as
  a result of actions taken or omitted in the
  course of rendering care, assistance, or advice
  in accordance with the National Contingency
  Plan (NCP) or at the direction of an on-scene
  coordinator appointed under such plan, with
  respect to an incident creating a danger to
  public health or welfare or the environment as
  a result of any releases of a hazardous
  substance or the threat thereof."  This
  provision does not preclude liability for costs
  or damages as a result of negligence.
  Releases of chemical and biological warfare
  agents due to a terrorist incident are
  considered hazardous materials incidents and
  therefore CERCLA §107 (d)  (1) could apply,
  to the extent that there is a release or
  threatened release of a hazardous substance.

  In addition, §107(d)(2) provides that state and
  local governments are not liable under
  CERCLA "as a result of actions taken in
  response to an emergency created by the
  release or threatened release of a hazardous
  substance generated by or from a facility
  owned by another person."  Section 107(d)(2)
  would insulate state and local governments
  from potential CERCLA liability arising from
  first responder actions.  However, the
  provision does not apply to  costs or
  damages caused by "gross negligence or
  intentional misconduct by the state or
  local government."
During a hazardous materials incident (including
a chemical/biological agent terrorist event), first
responders should undertake any necessary
emergency actions to save lives and protect the
public and themselves.  Once any imminent
threats to human health and live are
addressed, first responders should
immediately take all reasonable efforts to
contain the contamination and avoid or
mitigate environmental consequences. EPA
will not pursue enforcement actions against state
and local responders for the environmental
consequences of necessary and appropriate
emergency response actions. First responders
would not be protected under CERCLA from
intentional contamination such as washing
hazardous materials down the storm-sewer
during a response action as an alternative to
costly and problematic disposal or in order to
avoid extra-effort.

OTHER LIABILITY ISSUES AND
STATE TORT LAWS

EPA cannot prevent a private person from filing
suit under CERCLA.  However, first responders
can use CERCLA's Good Samaritan provision
as defenses to such an  action. First responders
could also be subject to actions under other
laws,  including state tort laws.  A state's tort law
allows individuals and businesses to seek
compensation for losses or harm caused by
another. The extent of tort liability of a state or
local governmental jurisdiction, as well as
individual employees or representatives of that
jurisdiction, is established by the tort law of each
state.  The liability of governmental jurisdictions
and their employees may be shaped by factors
such as negligence, statutory and discretionary
immunity, etc First responders should
consult legal counsel in their state to
discuss authority, status as an agent of the
state, immunities, and indemnification.
Chemical Emergency Preparedness and Prevention Office

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 First Responders' Environmental Liability due to Mass Decontamination Runoff  July 2000
  FEDERAL SUPPORT DURING
  A WMD INCIDENT

  Contaminated runoff should be avoided
  whenever possible, but should not impede
  necessary and appropriate actions to protect
  human life and health. Once the victims are
  removed and safe from further harm and
  the site is secured and stable, the first
  responders should be doing everything
  reasonable to prevent further migration of
  contamination into the environment.

  First responders should involve state and
  federal officials as soon as possible to reduce
  potential liability concerns. Under CERCLA,
  the Federal On-Scene Coordinator (FOSC)
  can determine which environmental regulations
  are applicable (or relevant and appropriate) to
  any removal response and may further
  determine that any such environmental
  regulation is impracticable to achieve
  depending on the exigencies of the situation.  If
  the FOSC determines that it is impracticable
  to comply with any particular environmental
  regulation, then the responders (local, state,
  Federal or responsible party) do not have to
  comply with that particular environmental
  regulation. By involving FOSC, first
  responders can substantially reduce their
  potential liability.

  In addition, FOSCs have an expanse of
  resources under the NRS to support state and
  local responders in determining a solution
  which best addresses protectiveness of human
  health and the environment.  Under the NRC,
  the FOSC can provide invaluable assistance in
  determining clean-up and decontamination
  needs, health criteria and appropriate clean-up
  protocols as needed. FOSC support is even
  more critical in the aftermath of a WMD
  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
conducted.

PRE-PLANNING IS KEY!

It may not be technically feasible to contain all
the runoff resulting from a WMD incident, but
emergency responders may be able to reduce its
impact to the environment by pre-planning.
Responders can maximize local resources by
using existing response mechanisms as much as
possible.  Local Emergency Planning
Committees (LEPCs) are a good starting point.
LEPCs are established under the Emergency
Planning and Community Right-to-Know Act to
develop local governments'  emergency response
and preparedness capabilities through better
coordination and planning, especially within the
local community. LEPCs include elected
officials, police, fire, civil defense, public health
professionals, environmental, hospital and
transportation officials, who can work together
creatively using available resources to minimize
the environmental impact of WMD incidents.
  For More Information.
  Contact the Emergency Planning and
  Community Right-to-Know Hotline

  (800) 424-9346 or (703) 412-9810
  TDD (800)553-7672

  Monday -Friday, 9 AM to 6 PM, EASTERN
  TIME
  Visit the CEPPO Home Page on the
         World Wide Web at:
         http ://www.epa.gov.ceppo/
Chemical Emergency Preparedness and Prevention Office

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