MODULE II-5

TOPIC: Emergency Response

The Law

Through Section 128(a), Congress provided EPA with expanded authority to fund activities that build capacity for state and tribal response programs to respond to releases of hazardous substances, pollutants or contaminants. Generally, these response programs address the assessment, cleanup and redevelopment of brownfields sites and other contaminated sites not otherwise addressed by EPA programs.

The Four Elements of the program authorized by Congress includes:

Oversight and enforcement authorities or other mechanisms, and resources, thatareadequate to ensure that (i) a response action will—

(I) protect human health and the environment;and

(II) be conducted in accordance with applicable Federal and State law; and

(ii) if the person conducting the response action fails to complete the necessary response activities, including operation and maintenance or long-term monitoring activities, the necessary response activities are completed.

The Law does not exclude emergency response actions from these program responsibilities.

Basic EPA Guidance

Through section 128(a), Congress provided the EPA with expanded authority to fund activities that build capacity for tribal response programs.The goals of this funding are too generally to increase their cleanup capacity and to provide funding for other activities that increase the number of response actions conducted or overseen, by a tribal response program.

General Discussion

the Tribal Response Programs (TRPs) funded by the brownfield legislation of 2002 can be utilized by the Tribal Nations to address past, present and potentially future releases of hazardous substances pollutants and contaminants; petroleum releases; controlled substances (i.e. Meth labs) and mine scarred lands in “Indian Country”. Such releases may not always be from past activities or brownfields but a release that happens today or tomorrow that in some cases may trigger the need for an immediate or emergency response action in addition to long term response actions.

Typically an emergency response action is intended to address the immediate hazard or threat to public health or the environment. However, there may also be long term impacts that still remain to be assessed or addressed after the initial first response to ensure the release does not require any follow up action or monitoring.

The immediate response to a spill or other type of release of a hazardous substance is generally handled by the “First Responders”. They may be federal, tribal, state, local county/municipal, private industry and/or contractors, or a combination of these. In any case First Responders require specific types of training and equipment. The First Response Team in Alaska is usually from the US EPA, the US Coast Guard and/or the Alaska DEC. However, there could be a significant delay before their arrival on the scene.

The First Responders often need the assistance of other programs and staff that are not necessarily “First Responders” such as:

  • Site, public and traffic control and management
  • Public outreach and notification
  • Coordination with other programs and levels of government
  • Follow up activities such as sampling and or monitoring
  • Engineering and/or Institutional Controls

The Tribal Response Program should determine what their role is in regards to emergency response for their tribe and area/reservation and consult the EPA Regional project manager on how to address that in their TRP grant work plan and what is fundable under their grant. Fundable activities or items could possibly include:

  • Staff training/travel
  • Attending coordination and planning meetings
  • Responding to an incident
  • Attending respondermeetings (during and after the response)
  • Equipment & supplies
  • Follow up assessment of a site or area impacted by a release
  • Verification and certification of the response action/cleanup
  • Implementation and monitoring of Institutional/engineering controls for the impacted area

TRP staff should not act outside the scope of their jobs, training or qualifications or they may be risking great liability to themselves or others.

During an Emergency Response Incident there is (or should be)an “Incident Commander” or Unified Incident Command directing the response and also the information released to the public during the event. The Tribal Response Programrepresentative(s) will need to coordinate withthe Incident Commanderor Unified Incident Commandon all activities during the event. In some cases the Tribal Response Program representative could be the Incident Commander or it may be handed over to them after the initial emergency to complete and or verify the cleanup.The delegation of “Incident Commander”(IC) should to be written down in the Tribes Emergency Response Plan and approved by Tribal Council or a delegated authority. The official Tribal emergency authority or IC should not need to be determined at the time of the incident.The IC also needs to be specifically trained for carrying out such duties.

The use of TRP Grant funds for actual emergency response is generally subject to the same restrictions as other site specific activities. That is, site specific work many be limited to “eligible sites” as determined by the EPA and all other TRP funded activities may need to be those that are considered oversight activities such as ensuring adequacy and completion of a cleanup, verification and certification of a cleanup, screening for release of hazardous substances, etc. However, tribal or other funding sources may be used for other activities not typically funded under the TRP Grant.

Emergency Response Activities under the128(a) Tribal Response Program Elements

A Tribal Response Program and/or other Tribal staff may need to take some actions to provide oversight and ensure that an emergency response action conducted on tribal lands is appropriate, adequate and properly completed. Some of those actions may be a component of the TRP 4 Elements and fundable under the 128(a) Grant. The following potential Tribal Response Program activities may need to be conducted as part of an emergency response action and the TRP program 4 Elements:

Element 1: Brownfields Survey and Inventory

Any remaining contamination from a release after the initial first response may create a new site that could be added to the Brownfield Inventory.

Element 2: Ensuring a Response Action is Adequate

The tribe may conduct on-site or remote oversight to ensure that an emergency response action will protect human health and the environment and be conducted in accordance with applicable federal and tribal laws, regulations and codes. This could also include tribal enforcement or other mechanisms or resources to ensure the emergency response action is adequate. This could include:

  • Travel to the site of the release to observe and monitor the response action
  • Travel to participate in coordination meetings and briefings with other agencies
  • Mobilizing necessary tribal staff and equipment
  • Onsite monitoring of the release(s)

The Tribe may utilize tribal enforcement authorities or other mechanisms, and resources that are adequate to ensure that the necessary response activities are completed if the person conducting the response activities, including operation and maintenance or long-term monitoring activities, fails to complete the activity (such as enforcement, funding, or other programmatic resources, including staff). This could include:

  • Implementing compliance/enforcement actions under tribal laws/codes
  • Measures to verify that response actions are/were adequate to include sampling and monitoring of contaminated media (in accordance with an approved QAPP for the media and contaminants involved) {Note: This overlaps with Element 4}
  • Implementing enforcement processes including legal support

Element 3: Opportunities for public participation

The Tribal Emergency Response Action or oversight may include communication with the public on the nature and seriousness of any releases, the need for any actions to be taken by the public and information on the response action(s) to be taken or in progress. This could include:

  • Providing public access to any information, reports or other documents that the tribe or another party conducting the response or cleanup is relying on or developing in making cleanup decisions or conducting site activities;
  • Attending and/or conducting any public outreach to inform them of the nature and seriousness of the release and the response action(s) planned or under way; and
  • prior notice and opportunity for comment on any proposed long term cleanup plans and site activities.

Element 4: Approval and Verification of a Response Action

The steps involved in implementing this Element could include:

  • Review and approval of an emergency response or cleanup plan;
  • Verification by the tribe, or a licensed site professional, that the emergency response action was completed to include sampling of contaminated media (in accordance with an approved QAPP for the media and contaminants involved);
  • Certification or similar documentation from the Tribe(s) to the person or party conducting an emergency response action indicating that the response is complete.

Public Record:

  • The cleanup conducted as an emergency response may be included in the Public Record
  • Any Institutional Controls, either temporary or long term, may be recorded in the Public Record.

Tribal Staffing:

Any other tribal emergency response staff partially or temporarily funded under the 128(a) grant should be included in the grant work plan and budget and would be subject to US EPA approval.

Please see the accompanying Power Point for Module II-5 for more specific information on Emergency Response in Alaska.

Tribal Implementation

TribalAccomplishments

Makah Tribe, WA - Emergency Response

The Makah Tribe of the State of Washington has worked diligently to acquire mechanical oil spill response equipment in Neah Bay since recent years have seen more than 3 million gallons of accidental spills. As a result of these spills, natural resources such as fish, marine mammals and associated cultural resources have been devastated. Over the past several decades, the tribe has petitioned in both federal and state forums for more stringent protection of the coast and Makah tribal waters through which more than 15 billion gallons of oil move each year.

In September 2008, the tribe purchased a 73-foot-long Arctic Tern oil spill response vessel. Tribal staff funded under 128(a) assisted with the negotiations for the vessel. The vessel and its crew of two from Neah Bay are part of the Makah Tribe's effort to effectively respond to oil spills that threaten their community and natural resources. Because of the tribe’s efforts, it has been appointed as a member to the Regional Response Team (RRT), one of 13 such teams that make up the National Response Team. It is the first tribe on the West Coast to be appointed to an RRT.

By working to understand the structure of spill response and becoming active in the state, the tribe has become a leader in protecting its own resources. There is a requirement in the Northwest Area Oil Spill Plan to consult with the Makah Tribal Council regarding conditional approval for the use of chemical dispersants with Makah treaty-protected waters.

Nez Perce Tribe, WA- The Tribe enhanced their Hazardous Environmental Response Team (HERT), through oil response and disaster planning training. A HERT trailer for response activities has been purchased by the tribe.The TRP provided support and technical assistance in addressing four petroleum spills within reservation boundaries.

Native Village of Port Heiden, AK: Addressing spills is complicated by the fact that their community is in a remote area of Alaska, subject to great variations in temperature and harsh conditions. The Tribe improved responses to emergency spillsthru the Tribal Response Program. The staff refined their notification process as well as the processes relied upon for spills. HAZWOPER training has been provided to their environmental staff as part of building in-house and external resource pool of first responders.

This knowledge came into use when on June 29, 2006 there was a small oil spill from an AST at the home of one of the village residents. Since both of the main Brownfields/TRP staff for the Native Council of Port Heiden was not available, other environmental staff members stepped in to identify and alert the proper lead agency and notify other key organizations of the situation. Upon notification the City of Port Heidenimmediately called to duty two of the program's HAZWOPER-certified first responders to address the spill. The quick response demonstrated the success of the program’s capacity building efforts, especially those focusing on the training of tribal staff to respond to acute environmental threats.

Tribal Issues

  • Consistent EPA policies on the use of 128(a) funding to train and supply tribal emergency response staff;
  • Coordination of multiple jurisdictions and programs and attending meetings;
  • Determination of lead agency or responder by location and/or type of incident; and
  • Maintaining staff training and certifications.
  • Spills less than Federal or State Reportable Quantities (RQs)

Lessons learned

Not all staff should be trained as “First Responders”

Need to determine what other tribal programs or persons are involved

How Tribes can further implement the topic

Improved coordination between all parties involved

Improved recognition of the tribal role

Improved tribal capabilities

Additional Guidance and Resources

Consult the US EPA Regional Office and Alaska DEC for technical assistance and training for tribal emergency response capabilities and coordination with EPA programs and state and local programs.

Web Site:

EPA Region 10 “Guidance for Preparing Tribal Emergency Response Plans”

“Community Response Planning Manual and Template: for Tribes, Villages and other Small Communities”, Jan. 2006

Enhance TRP: Module II-5Page 1