EPA has proposed to revise requirements under the National Oil and Hazardous Substance Contingency Plan (NCP) to address concerns raised during the Deepwater Horizon oil spill pertaining to the use of dispersants and other spill mitigating products.  Specifically, the proposed revisions address concerns relating to NCP standards for the efficacy, toxicity, and environmental monitoring of dispersants.

Although the U.S. Coast Guard was the On-Scene Coordinator for the Deepwater Horizon incident response, EPA had the responsibility under the Clean Water Act to determine whether and what dispersants could be used as part of the response.  33 U.S.C. Section 1321(d)(2)(G); 40 C.F.R. Part 300.900-920.  At the approval of EPA, approximately 1.75 million gallons of dispersants were deployed over a three-month period on surface slicks in the Gulf of Mexico and injected directly into the oil gushing from the well riser.  Proposed Rule at 6.  Subsequent tests conducted by various agencies and citizen groups concluded that the dispersants had unanticipated effects, creating longer term impacts to the water column and biota.

In 2012, EarthJustice and other citizen groups filed suit against EPA, asking the court to direct the Agency to revise the NCP to address these concerns.  That case was dismissed as time barred a year later (the court reasoning that the original NCP should have been challenged on this point years ago).  Nonetheless, EPA continued to work on revisions to the NCP and the recently proposed revisions are intended to address questions about efficacy, toxicity, environmental trade-offs, and environmental monitoring that were raised during the Deepwater Horizon incident response.  Id.  Specifically, criticism of the widespread use of dispersants under the NCP included questions about EPA’s role in the decision to use a particular type of dispersant in response to the Deepwater Horizon incident, the environmental effects of this decision, and the adequacy of NCP testing protocols and data requirements.

Last revised in 1994 in response to the Oil Pollution Act of 1990, Subpart J of the NCP requires EPA to maintain the NCP Product Schedule, which specifies the dispersants and other chemical or biological agents authorized for use in carrying out the NCP.  40 C.F.R. Part 300.900.  It also sets forth the procedures to be used in determining which products are included on this Schedule.  40 C.F.R. Part 300.905(a)(1).  For a product to be listed on the Schedule, certain technical data must be submitted to EPA, including the results of toxicity, dispersant effectiveness, and bioremediation effectiveness testing, the costs of which are borne by product manufacturers.  The purpose of these data requirements is to enable On-Scene Coordinators to judge whether and in what quantities a product may be used to control a particular discharge.  Proposed Rule at 17. 

Among the most notable aspects of the proposal, EPA proposes to amend Subpart J by:
  • Adding new criteria for Product Schedule listing, requiring manufacturers to provide more detailed product application materials, ecological toxicity data, and human health and safety information, including more detailed instructions for product application in the field; 
  • Revising requirements for pre-authorization plans, to ensure that preauthorization or expedited decision-making plans are developed and maintained to facilitate decisions by On-Scene Coordinators more effectively during removal actions;
  • Requiring responsible parties to monitor any underwater application of dispersants, any surface use of dispersants for an extended period of time or in response to oil discharges of more than 100,000 gallons occurring within 24 hours;
  • Revising current efficacy and toxicity testing protocols;
  • Limiting what manufacturers are allowed to claim as confidential business information; and
  • Clarifying the evaluation criteria for removing products from the Schedule.
Comments on EPA’s proposal must be received by 90 days after the date of its publication in the Federal Register.