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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