Federal Lead Agency Status Refugio Oil Spill – Consideration of NCP lead roles for oil discharges impacting Coastal and Inland Zones in Region 9

Oil Spill Response Authority  CWA 311(c) – (1) (A) PRESIDENT shall, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance....  (B) In carrying out this paragraph, the PRESIDENT may... direct or monitor all Federal, State and private actions to remove a discharge.  CWA 311(e) also provides response authority, but generally for a less urgent situation or for more extended receptors.  CWA 311(c) – (1) (A) PRESIDENT shall, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance....  (B) In carrying out this paragraph, the PRESIDENT may... direct or monitor all Federal, State and private actions to remove a discharge.  CWA 311(e) also provides response authority, but generally for a less urgent situation or for more extended receptors.

Of course the President would do a great job, but....  Executive Order 12777, Sec. 3 – The functions vested in the PRESIDENT by Section 311(c) [of the CWA], respecting an effective and immediate removal or arrangement for removal of a discharge... are delegated to the [EPA] for the inland zone and to the [USCG] for the coastal zone.  EPA delegations present this authority to pre-designated staff level On-Scene Coordinators  USCG authority is presented to the Captain of the Port for the region of the release  Executive Order 12777, Sec. 3 – The functions vested in the PRESIDENT by Section 311(c) [of the CWA], respecting an effective and immediate removal or arrangement for removal of a discharge... are delegated to the [EPA] for the inland zone and to the [USCG] for the coastal zone.  EPA delegations present this authority to pre-designated staff level On-Scene Coordinators  USCG authority is presented to the Captain of the Port for the region of the release

Coastal Zone/Inland Zone  NCP “Coastal Zone” US Waters subject to tide and adjoining lands, generally, subject to agreement in regional contingency plans.  Appendix I to Federal Region 9 Mainland Regional Contingency Plan -- In California, the dividing line between the coastal and inland zones generally follows the coast highway. [Special breakouts apply for cosmopolitan zones in San Diego, Los Angeles and San Francisco.]  For areas where boundaries are designated by either highways or railroad tracks, the roadbed or railway right-of-way shall be the responsibility of the cognizant EPA OSC.  NCP “Coastal Zone” US Waters subject to tide and adjoining lands, generally, subject to agreement in regional contingency plans.  Appendix I to Federal Region 9 Mainland Regional Contingency Plan -- In California, the dividing line between the coastal and inland zones generally follows the coast highway. [Special breakouts apply for cosmopolitan zones in San Diego, Los Angeles and San Francisco.]  For areas where boundaries are designated by either highways or railroad tracks, the roadbed or railway right-of-way shall be the responsibility of the cognizant EPA OSC.

Broad, inconsistent language of NCP  NCP – (a)(1) The USCG shall provide OSCs for oil discharges, including discharges from facilities and vessels under the jurisdiction of another federal agency, within or threatening the coastal zone.  (a)(2) EPA shall provide OSCs for discharges or releases into or threatening the inland zone [and remedial actions].  For hazardous waste facilities or chronic incidents in the coastal zone, USCG re-delegated authority to EPA, initially per MOU, now incorporated in the NCP.  NCP – (a)(1) The USCG shall provide OSCs for oil discharges, including discharges from facilities and vessels under the jurisdiction of another federal agency, within or threatening the coastal zone.  (a)(2) EPA shall provide OSCs for discharges or releases into or threatening the inland zone [and remedial actions].  For hazardous waste facilities or chronic incidents in the coastal zone, USCG re-delegated authority to EPA, initially per MOU, now incorporated in the NCP.

There Can Be Only One!  NCP (b) – There shall be only one OSC... at any time during the course of a response operation. Should a discharge or release affect two or more areas, [the agencies] shall give prime consideration to the area vulnerable to the greatest threat, in determining which agency should provide the OSC. The RRT shall designate the OSC... if [the agencies] are unable to agree on the designation. [The NRT will decide if the RRT cannot].  Section of Oceania Regional Response Plan anticipates transition of OSC role based on shifting appreciation of impacts  NCP (b) – There shall be only one OSC... at any time during the course of a response operation. Should a discharge or release affect two or more areas, [the agencies] shall give prime consideration to the area vulnerable to the greatest threat, in determining which agency should provide the OSC. The RRT shall designate the OSC... if [the agencies] are unable to agree on the designation. [The NRT will decide if the RRT cannot].  Section of Oceania Regional Response Plan anticipates transition of OSC role based on shifting appreciation of impacts

The Past Guides the Present  Kinder Morgan Pipeline Spill – Suisun Marsh, Pipeline break into coastal zone (San Francisco Bay area). After first few days of response by USCG with EPA assistance, USCG appointed EPA to lead the response and enforcement based on it’s experience and expertise, because. at this point, most of the response was terrestrial.  Response took many months, and lack of an initial response order created confusion on ultimate clean up standards.  Cosco Busan – San Francisco Bay, Tanker damaged on Bay Bridge, USCG maintained lead, but eventually tasked EPA to assist with shoreline response efforts. Good opportunity for agencies to work together in “live fire” environment.  Pacific Pipeline (Plains) – Pipeline break in inland zone. Even with initial response order, Plains’ response was inefficient and took many months to complete.  Kinder Morgan Pipeline Spill – Suisun Marsh, Pipeline break into coastal zone (San Francisco Bay area). After first few days of response by USCG with EPA assistance, USCG appointed EPA to lead the response and enforcement based on it’s experience and expertise, because. at this point, most of the response was terrestrial.  Response took many months, and lack of an initial response order created confusion on ultimate clean up standards.  Cosco Busan – San Francisco Bay, Tanker damaged on Bay Bridge, USCG maintained lead, but eventually tasked EPA to assist with shoreline response efforts. Good opportunity for agencies to work together in “live fire” environment.  Pacific Pipeline (Plains) – Pipeline break in inland zone. Even with initial response order, Plains’ response was inefficient and took many months to complete.

Refugio Oil Spill – May 19, 2015  Pipeline release north of Highway 101 [Inland zone].  Release travelled south, under highway and railway, impacting Refugio State Beach and the Pacific Ocean.  Spill first observed as ocean release; USCG opened PRFA and initiated response.  EPA arrived to response and incorporated into Unified Command.  EPA’s Initial impressions suggested Plains’ response would continue for months, with eventual transition to EPA lead as marine response abated.  Pipeline release north of Highway 101 [Inland zone].  Release travelled south, under highway and railway, impacting Refugio State Beach and the Pacific Ocean.  Spill first observed as ocean release; USCG opened PRFA and initiated response.  EPA arrived to response and incorporated into Unified Command.  EPA’s Initial impressions suggested Plains’ response would continue for months, with eventual transition to EPA lead as marine response abated.

Here and Now, and the Future  EPA prepared first draft of joint response order to capitalize on lessons from previous large oil spills. Joint order developed from templates of EPA and USCG.  USCG revised order for USCG lead, with joint nature of order intended to provide for any eventual transition of response lead. Federal agencies also sought input from state agencies to better ensure against the need for competing orders (particularly concern of state was natural resource issues and mandatory spill volume calculation).  Response to date has been efficient and effective, terrestrial and marine response almost complete without any need for transition of lead role.  EPA anticipates civil enforcement against Plains Pipeline for Refugio release, with continued assistance from USCG.  Refugio response and joint order may be a model of USCG/EPA cooperation.  EPA prepared first draft of joint response order to capitalize on lessons from previous large oil spills. Joint order developed from templates of EPA and USCG.  USCG revised order for USCG lead, with joint nature of order intended to provide for any eventual transition of response lead. Federal agencies also sought input from state agencies to better ensure against the need for competing orders (particularly concern of state was natural resource issues and mandatory spill volume calculation).  Response to date has been efficient and effective, terrestrial and marine response almost complete without any need for transition of lead role.  EPA anticipates civil enforcement against Plains Pipeline for Refugio release, with continued assistance from USCG.  Refugio response and joint order may be a model of USCG/EPA cooperation.

A Jointly Issued Order  Time line on joint issuance of the unilateral order:  Spill occurs May 19, 2015  May 21, EPA creates first draft of order, solicits initial impressions from USCG May 22.  May 24, initial federal draft shared with state agencies.  May 25-26, EPA and USCG commands come to accept order with final edits.  May 27, order issued  Substance of order will carry entire response, including any through potential transfer of lead role.  Time line on joint issuance of the unilateral order:  Spill occurs May 19, 2015  May 21, EPA creates first draft of order, solicits initial impressions from USCG May 22.  May 24, initial federal draft shared with state agencies.  May 25-26, EPA and USCG commands come to accept order with final edits.  May 27, order issued  Substance of order will carry entire response, including any through potential transfer of lead role.

Lessons and Opportunity  Refugio Release proved to be a lesson in interagency cooperation, building from past experiences. Exposure to respective agencies’ working dynamics builds understanding, appreciation and relationships.  Circumstances of Refugio spill (source and significant impacts in separate zones) is not expected to be a common occurrence, but the need for cooperation will be.  Future use of joint order as a template may be even more expeditious.  Refugio Release proved to be a lesson in interagency cooperation, building from past experiences. Exposure to respective agencies’ working dynamics builds understanding, appreciation and relationships.  Circumstances of Refugio spill (source and significant impacts in separate zones) is not expected to be a common occurrence, but the need for cooperation will be.  Future use of joint order as a template may be even more expeditious.

Contacts  J. Andrew HelmlingerLCDR Robin Ellerbe   (415) (510)  J. Andrew HelmlingerLCDR Robin Ellerbe   (415) (510)