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The Clean Water Act requires EPA to prepare a schedule identifying dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the National Contingency Plan (NCP); and the waters and quantities in which they may be used. The EPA is considering revising subpart J of the NCP to address the efficacy, toxicity, and environmental monitoring of dispersants, other chemical and biological agents, and other spill mitigating substances, as well as public, state, local, and federal officials concerns on their authorization and use. Specifically, the Agency is considering revisions to the technical product requirements under subpart J, including amendments to the effectiveness and toxicity testing protocols, and establishing new effectiveness and toxicity thresholds for listing certain products on the Schedule. Additionally, the Agency is considering amendments to area planning requirements for agent use authorization and advanced monitoring techniques. The Agency is also considering revisions to harmonize 40 CFR part 110.4 with the definitions for chemical and biological agents proposed for subpart J. These changes, if finalized, will help ensure that chemical and biological agents have met rigorous efficacy and toxicity requirements, that product manufacturers provide important use and safety information, and that the planning and response community is equipped with the proper information to authorize and use the products in a judicious and effective manner.

Statement of Need:

The use of dispersants in response to the Deepwater Horizon incident, both on surface slicks and injected directly into the oil from the well riser, raised many questions about efficacy, toxicity, environmental trade-offs, and monitoring challenges. The Agency is considering amendments to subpart J that would increase the overall scientific soundness of the data collected on mitigation agents, take into consideration not only the efficacy but also the toxicity, long-term environmental impacts, endangered species protection, and human health concerns raised during responses to oil discharges, including the Deepwater Horizon incident. The additional data requirements being considered would aid On-Scene Coordinators (OSCs) and Regional Response Teams (RRTs) when evaluating specific product information and when deciding whether and which products to use to mitigate hazards caused by discharges or threatened discharges of oil. Additionally, the Agency is considering amendments to area planning requirements for dispersant use authorization, toxicity thresholds and advanced monitoring techniques. This action is a major component of the EPA's effort to inform the use of dispersants and other chemical or biological agents when responding to oil discharges, based on lessons learned from the federal government's experiences in responding to off-shore oil discharges, including the Deepwater Horizon incident, in the Gulf of Mexico and anticipation of the expansion of oil exploration and production activities in the Arctic.

Summary of the Legal Basis:

The Federal Water Pollution Control Act (FWPCA) requires the President to prepare and publish a National Contingency Plan (NCP) for the removal of oil and hazardous substances. In turn, the President delegated the authority to implement this section of the FWPCA to the EPA through Executive Order 12777 (56 FR 54757; October 22, 1991). Section 311(d)(2)(G)(i) of the FWPCA (a.k.a., Clean Water Act), as amended by the OPA, requires that the NCP include a schedule identifying "dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out" the NCP. Currently, the use of dispersants, other chemicals, and other oil spill mitigating devices and substances (e.g., bioremediation agents) to respond to oil discharges in U.S. waters is governed by subpart J of the NCP (40 CFR part 300 series 900).

Alternatives:

The Agency will consider alternatives via the proposal that address the efficacy, toxicity, and environmental monitoring of dispersants, and other chemical and biological agents, as well as public, state, local, and federal officials' concerns regarding their use.  Specifically, the alternative requirements for the NCP Product Schedule (Schedule) consider new listing criteria, revisions to the efficacy and toxicity testing protocols, and clarifications to the evaluation criteria for removing products from the Schedule. EPA is also considering alternatives to the requirements for the authorities, notifications, monitoring, and data reporting when using chemical or biological agents in response to oil discharges in waters of the U.S. The alternatives being considered are intended to encourage the development of safer and more effective spill mitigating products, to better target the use of these products in order to reduce the risks to human health and the environment, and to ensure that On-Scene Coordinators (OSCs), Regional Response Teams (RRTs), and Area Committees have sufficient information to support agent preauthorization or authorization of use decisions.

Anticipated Costs and Benefits:

The Agency expects the proposed rule, if finalized, would provide overall net benefits as a result of having more effective products on the Schedule, as well as from avoided costs of oil spill response and cleanup. Costs to product manufacturers would be incremental annual costs for product testing and labor. For certain discharges, costs to the party responsible for the spill would be added for monitoring requirements. A detailed costs and benefits analysis will be available with the proposal.

Risks:

Although major catastrophic oil discharges where chemical or biological agents may be used are relatively infrequent, this proposed rulemaking under subpart J should lead to the manufacture and use of less toxic, more effective oil spill mitigating products. The use of these products may reduce the potential for human and environmental impact, emergency response duration, and costs associated with any oil discharge. However, the impacts will vary greatly depending on factors that include the size, location and duration of an oil discharge, as well as, the type of oil being discharged. While the reduction in environmental impacts associated with the use of oil spill mitigating agents driven by this action are likely small for typical oil discharges, they could be significant in the event of a large oil discharge.