Section 6. FINANCE

Subsection 6.4 Documentation for Enforcement and Cost Recovery

6.4.1 Introduction

The OSC in charge at the scene of a release may be from any one of several agencies. It is necessary, therefore, to establish uniform procedures for notification of counsel and for collection of samples and information consistent with the several phases in Federal response situations. Necessary information and sample collection must be performed at the proper times during Federal involvement in a spill for the purpose of later use in identifying the party responsible for cost recovery.

Time is of great importance, as wind, tide, and current may disperse or remove the evidence and witnesses may no longer be available. Thus, during the response phases, the OSC must take the necessary action to ensure that information, records, and samples adequate for legal and research purposes are obtained and safeguarded for future use.

Section 300.335 of the NCP outlines the types of funds which may be available to address certain oil and hazardous substances discharges. For releases of oil or a hazardous substance, pollutant, or contaminant, the following provisions apply:

  1. During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the ACP and to form the basis for cost recovery. In general, documentation shall be sufficient to provide the source and circumstances of release; identity of responsible parties; response action taken; accurate accounting of Federal, State, or private party costs incurred for response actions; and impacts and potential impacts to public health and welfare and the environment. Where applicable, documentation shall state when the NRC received notification of release of a reportable quantity.
  2. The information and reports obtained by the lead agency for OSLTF-financed response actions shall, as appropriate, be transmitted to the NPFC. Copies can then be forwarded to the NRT, members of the RRT5, and others as appropriate.

6.4.2 Notification

The OSC is responsible for coordinating with counsel in his/her agency. Counsel for the RRT5 member furnishing the OSC is responsible for notifying other RRT5 member counsel, as appropriate, of potential enforcement or cost recovery matters related to an incident. The OSC and his/her counsel are responsible, following review and consultation with other RRT5 members involved in an incident, for notifying a responsible party of any determination under the CWA or CERCLA that the party is not properly accomplishing any response action.

The information and reports obtained by the OSC are to be transmitted to the applicable RRT5 Co-chair. Copies will then be forwarded to members of the RRT5 and others, as appropriate. The representative of the agency on the RRT5 having cost recovery authority will then refer copies of the oil or hazardous materials reports to that agency's respective counsel.

6.4.3 Legal Notice to Suspected Releaser

The owner, operator or other appropriate responsible person shall be notified of Federal interest and potential action in an oil or hazardous materials release by the agency furnishing the OSC. This notice shall include:

6.4.4 Oil or Hazardous Materials Release Report

The appropriate information for each oil or hazardous material release should be obtained by the OSC and reported in the appropriate format established by the Emergency Response Division, Washington, DC. The OSC will retain:

for possible use in enforcement actions. In all major spills, the oil or hazardous material incident report should be completed and forwarded to the RRT Chair.

Further information on Superfund compliance and penalties can be found on the US EPA Cleanup Enforcement website at http://www.epa.gov/Compliance/cleanup/superfund/comply.html