NOAA's Implementation of
CERCLA §106 Response Authority

On August 28, 1996, President Clinton issued Executive Order (EO) 13016 allowing Federal Resource Managers (FRM) to take response or "cleanup" actions under CERCLA §106 when there is an "imminent and substantial endangerment" to the public's natural resources from actual or threatened releases of hazardous substances. The FRMs include the Departments of the Interior, Commerce, Agriculture, Defense and Energy.

Response authority was delegated to U.S. Environmental Protection Agency and the U.S. Coast Guard (Federal response agencies) under CERCLA. These agencies have focused on conducting response actions at sites posing the greatest threat to public health or welfare. In the majority of cases, this threat is paralleled by a similar threat to the environment and both can be addressed through a single response action. In some cases, however, significant threats to sensitive natural resources may not be addressed by a Federal response action. EO 13016 allows FRMs to respond to the small percentage of cases where no Federal response action is planned, but hazardous substances threaten the public's natural resources.

§106 Response Authority

In light of the newly delegated §106 authority, NOAA's Damage Assessment Remediation and Restoration Program and the Hazardous Materials Response and Assessment Division are evaluating the potential for response actions. NOAA's efforts are being guided by the provisions in EO 13016 and a Memorandum of Understanding developed by a Federal interagency task force. These provisions require that an FRM can only pursue response actions if:

• there has been an actual or threatened release of a hazardous substance affecting Federal trust resources;
• the actual or threatened release presents an "imminent and substantial endangerment" to public health or welfare or the environment; and
• no Federal or state response agency has asserted lead responsibility for the conduct or oversight of a response action at the site in question

In addition, FRMs can only act if:

• they receive concurrence from the relevant response agency;
• other FRMs sharing concurrent jurisdiction agree to select a lead site manager to exercise §106 authority;
• they coordinate their response action with all state, local or tribal parties that have interest in, or authority at, the site;
• the action complies with the National Contingency Plan and programmatic EPA guidance; and
• their exercise of §106 response authority does not relieve them of responsibility as the predominant potentially responsible party (PRP) at the site.

Site Evaluation Criteria

NOAA is using the following criteria to evaluate potential sites for §106 response action.

• No response action is planned or underway—FRM response action is precluded where cleanup is planned or underway by Federal or state response agencies. There may be cases, however, where a joint venture could facilitate the response process.
• NOAA 's trust resources are involved and there is an "imminent and substantial endangerment" to our resources—FRMs can only respond where there is a real and impending threat to their trust resources, thus avoiding "arbitrary and capricious" actions.
• A FRM-sponsored response action is likely to facilitate the restoration process—§106 response authority is not intended to replace natural resource damage assessment activities. Nevertheless, a response designed to minimize residual injury from a hazardous substance is also likely to facilitate restoration goals.
• PRP involvement is limited and well-defined—§106 response compliance is more likely if the PRPs are easily identifiable and few in number. Working with a smaller number of PRPs should facilitate compliance.
• Scale of affected area and action is limited and well-defined—A response action for a small and well-defined contaminant area is more likely to result in the highest benefit for the Nation's public resources.

NOAA will approach §106 response authority in a careful and considered manner. This approach will ensure that NOAA and the other FRMs have the opportunity to learn from the experience of the response agencies that have been using §106 response authority. We intend to work cooperatively with the response and co-trustee agencies. This effort will pave the way for effective cleanup actions at other sites and further reduce the risk posed by hazardous substances to the Nation's natural resources.