Oil Spill Response Under the NCP and the NRF/Stafford Act - Incompatible Regimes?

Abstract

ABSTRACT This paper examines oil pollution response during disaster situations when the Stafford Act is invoked by the President and the National Response Framework provides funding under ESF-10. The interrelationship between the National Contingency Plan (NCP), created by various pollution statues (Clean Water Act/CWA, Comprehensive Environmental Response, Compensation, and Liability/CERCLA, Oil Pollution Act/OPA) and the National Response Framework (NRF), created to deal with declared disasters under the Stafford Act, is becoming more fractious as time passes and the financial scope of disasters grows. The paradigm that existed when Hurricane Katrina made landfall in 2005 was not in evidence when Hurricanes Isaac and Sandy made landfall in the fall of 2012. The NCP envisions oil and chemical spill response in the context of a single spill, ideally with a known responsible party (RP), who takes action to respond to the spill. That RP is liable for costs and damages resulting from the spill. Action commences when the spill occurs and the Federal On-Scene Coordinator (FOSC) determines that federal action is required. If the federal funds (Oil Spill Liability Trust Fund/OSLTF, CERCLA/SUPERFUND) are used, the federal government seeks cost recovery afterwards. The NRF envisions the federal government acting like a “no-fault insurance” regime, providing federal resources/funds to states when their capabilities are overwhelmed and their citizens require immediate succor. FEMA action commences when the State requests and the President approves aid. The states agree to a cost share – not to exceed 25% of Federal funding. There is no private party liability when actions are complete. The Homeland Security Act established the NRF, and operationally subsumes the NCP under it. However, the Homeland Security Act does not address what fund (Stafford or the pollution funds) will be used when a declared disaster occurs. Furthermore, the Stafford Act structure (State requests, Presidential approvals, Federal Emergency Management Agency Federal Coordinating Officer (FEMA FCO) appointment, area surveys, mission assignments) becomes sclerotic in a large incident when compared to the much more nimble NCP process (spill, FOSC decision, immediate funding). The effect for Coast Guard (CG) and Environmental Protection Agency (EPA) field responders is to lean forward with NCP processes to protect the public. FEMA, faced with dwindling resources, observes this tendency and declines to provide disaster funding when the other federal funds “can be used”. The paper proposes a new paradigm for the “Makris-Suiter” Agreement of 1998 between EPA and FEMA. The opinions stated in this paper are the author's alone, and do not reflect the official policies of the United States Coast Guard.