Overview of Spill Response and NRDAR Program

TABLE OF CONTENTS

OVERVIEW

1.1 What is the purpose of this chapter? This chapter:

A. Describes the authorities, terms, and general policies regarding the U.S. Fish and Wildlife Service’s (Service) response to discharges of oil and releases of hazardous substances (spill response) and implementation of Natural Resource Damage Assessment and Restoration (NRDAR) activities; and

B. Explains how we have organized the remaining chapters in Part 573 (See Table 1-1).

Table 1-1: Organization of the Remaining Chapters in Part 573

1.2 What is the scope of this chapter? This chapter applies to all Service employees who have responsibilities for conducting response activities for oil discharges or hazardous substance releases or for otherwise implementing NRDAR activities on or off Service lands. Other Service Manual chapters that are relevant to spill response and NRDAR activities are listed in Table 1-2. In particular, 561 FW 10 provides detailed information regarding hazardous substance removal on Service lands.

Table 1-2: Other Relevant Service Manual Chapters

1.3 What are the authorities for all the chapters in Part 573?

A. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq.).

B. Coral Reef Conservation Act (16 U.S.C. 6401 et seq.).

C. Department of the Interior’s (Department) Environmental Compliance Memorandum (ECM) 16-4; “Departmental Procedures Related to Pollution Removal Funding Authorizations Issued by Federal On-Scene Coordinators for Response Activities for Oil Spills;” October 4, 2016.

D. Endangered Species Act (16 U.S.C. 1531 et seq.).

E. Executive Order (E.O.) 12580, Superfund Implementation, as amended by E.O. 13016 and E.O. 13286.

F. E.O. 12777, Implementation of Section 311 of the Federal Water Pollution Control Act, as amended.

G. Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA) (33 U.S.C. 1251 et seq.).

H. Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the Federal Water Pollution Control Act’s National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act (ESA MOA), 2001.

I. Marine Mammal Protection Act (16 U.S.C. Chapter 31).

J. Memorandum from the Department’s NRDAR Program Manager to the Director; “Documentation for NRDAR Settlements and Covenants Not to Sue;” May 7, 2004.

K. Memorandum from the Department’s NRDAR Program Manager and the Director, Office of Environmental Policy and Compliance to the Service Director; “Policy for Signature of Non-Case-Specific NRDAR Program-Related Documents and Documents Involving both CERCLA/OPA Response and NRDAR Program Activities;” May 25, 2001.

L. Memoranda from the Department’s NRDAR Program Manager to the Director; “Revised Policy on Recovered Assessment Costs;” August 16, 1999, and August 23, 2000.

M. Memorandum from the Department’s NRDAR Program Manager to the Director; “Policy on Recovering Indirect Costs;” August 4, 2000.

N. Migratory Bird Treaty Act, as amended (16 U.S.C. 703-712).

O. National Oil and Hazardous Substances Pollution Contingency Plan (National Contingency Plan or NCP) (40 CFR 300).

P. National Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee).

Q. Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et seq.), as amended by E.O. 13286.

R. Regulations for Natural Resource Damage Assessments under CERCLA and the CWA (43 CFR 11).

S. Regulations for Natural Resource Damage Assessments and Restorations under OPA (15 CFR 990).

T. 207 Departmental Manual (DM) 6, Natural Resource Damage Assessment and Restoration (NRDAR).

U. 521 DM 1-3, NRDAR Authorities and Policy, Responsibilities, and Signatory Authority.

GLOSSARY

1.4 What terms do you need to know to understand the chapters in Part 573? See Exhibit 1 for a glossary of terms used in Part 573, Response to Discharges of Oil and Releases of Hazardous Substances and NRDAR.

SPILL RESPONSE

1.5 When and how does the Service conduct spill response? When a discharge of oil or a release of hazardous substances has occurred and the discharge or release (or actions to contain the discharge or release) may result in injures to natural resources, the Service may respond by:

A. Providing emergency consultation to the lead Federal response agency to allow them to incorporate listed and proposed species and designated and proposed critical habitat concerns into their response actions; and

B. Helping the lead Federal agency, as requested, during the spill response where there is potential injury to natural resources managed or controlled by the Service (e.g., migratory birds, species of special concern, National Wildlife Refuge System lands). The spill response depends on the type of release, as follows:

(1) Oil discharge: We conduct response activities in support of the lead Federal agency responding to an oil discharge at their request or when we have concerns for natural resources under the management or control of the Service. The EPA or the U.S. Coast Guard (USCG) serves as the lead Federal response agency, depending on whether the discharge or release affects the inland or the coastal zone, as defined in the NCP. In general, EPA is the lead agency for the inland zone, and the USCG is the lead agency for the coastal zone and the Great Lakes. For discharges or releases affecting both, EPA is the lead agency and the USCG serves as the deputy. We also conduct response activities in support of state, tribal, and local government authorities. During an oil discharge, our responsibilities may include, but are not limited to, the following:

     (a) Ensuring the health and safety of Service responders;

     (b) Providing guidance and oversight to the various elements within the incident command structure structure
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Learn more about structure regarding environmental toxicology, threatened and endangered species and their habitat, other natural resources, and other areas of concern relative to the Service mission and for natural resources under the management or control of the Service, that may be affected by the discharge or response actions (see ECM 16-4);

     (c) Acting as a “First Federal Official” on spills on Service-managed lands until the Federal On-Scene Coordinator (FOSC) arrives;

     (d) Providing support to the Service’s Office of Law Enforcement;

     (e) Recovering costs for response actions we perform at the request of the lead Federal response agency (see 573 FW 4); and

     (f) Coordinating with the NRDAR case manager to ensure samples and data are collected, when necessary, and shared in support of injury assessment and emergency restoration needs.

(2) Releases of hazardous substances:

     (a) See 561 FW 10, CERCLA Site Cleanup, which establishes our requirements for responding to releases or threatened releases of hazardous substances on or from lands under Service jurisdiction into the environment to ensure compliance with CERCLA and the NCP.

     (b) The Service, through national-level interagency agreements, can provide technical assistance to other Federal agencies to evaluate the nature and extent of contamination and ecological risk, and to provide guidance regarding response actions.

NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION (NRDAR)

1.6 When and how does the Service conduct NRDAR? The Service is one of several Departmental bureaus with authority to act as a trustee for natural resources under OPA, CERCLA, and the CWA (see 207 DM 6).

A. When there is a discharge of oil or a release of hazardous substances that affects natural resources under the Service’s management or control, we may pursue a natural resource damage assessment and seek to recover damages to restore or replace injured or destroyed natural resources and to compensate the public for the loss of services such resources provide (e.g., recreational fishing, reproductive productivity of lost wildlife species, etc.). Damages may also include the reasonable costs of the assessment and administrative costs of restoration planning, implementation, and monitoring. See 573 FW 4 regarding the use of recovered natural resource damages.

B. We often collaborate with other bureaus, Federal agencies, and tribal and state governments who also have natural resource trustee responsibilities and authorities to pursue a combined NRDAR claim. See 573 FW 4 for more information on NRDAR claims.