View Rule

Pursuant to the Clean Water Act, the EPA prepares 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 proposed to revise subpart J of the NCP to address the efficacy, toxicity, 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. Under this action, the Agency is considering finalizing amendments for monitoring requirements for dispersant use in response to major oil discharges and/or certain dispersant use situations.

Statement of Need:

The 2010 Deepwater Horizon oil discharge raised questions about the challenges of dispersant use decisions in response operations for certain atypical dispersant use situations. The EPA is establishing new monitoring requirements under subpart J of the National Contingency Plan (NCP) to address these challenges. Specifically, the action establishes monitoring requirements for dispersant use in response to major oil discharges and/or certain dispersant use situations in the navigable waters of the United States and adjoining shorelines. These new monitoring requirements incorporate lessons learned from the federal government's experiences in the Gulf and are anticipated to better target dispersants use, reducing the risks to the environment.

Summary of the Legal Basis:

Under sections 311(d) and 311(j) of the Clean Water Act (CWA), as amended by section 4201 of the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380, the President is to prepare and publish the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) for removal of oil and hazardous substances. Specifically, section 311(d)(2)(G) provides for the President to include a Schedule identifying "(i) dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the Plan, (ii) the waters in which such dispersants, other chemicals, and other spill mitigating devices and substances may be used, and (iii) the quantities of such dispersant, other chemicals, or other spill mitigating device or substance which can be used safely in such waters" as part of the NCP. The authority of the President to implement this portion of the CWA is currently delegated to EPA in Executive Order 12777 (56 FR 54757, October 22, 1991). Subpart J of the NCP governs the use of dispersants, and any other chemical agents to respond to oil discharges (40 CFR part 300 series 900).

Alternatives:

The EPA is considering the public comments it received on the NPRM on a variety of regulatory alternatives to the NPRM proposed monitoring requirements. The Agency in the NPRM considered alternatives to the applicability of the new monitoring requirements to include certain dispersant use situations, including 1) any subsurface use of dispersant, 2) surface use of dispersant on oil discharges greater than 100,000 U.S. gallons within 24 hours, or 3) surface use of dispersant of more than 96 hours. The Agency also considered alternatives to the water column analysis, including new requirements removing carbon dioxide monitoring, applying DO measurements to subsurface only, and adding baseline conditions. Alternatives considered to the oil distribution analysis requirements included clarifying the use of "best available technology" and addressing uncertainties in oil plume trajectories. Alternatives were considered for the ecological characterization requirements and information on dispersant application and source characterization requirements.

Anticipated Costs and Benefits:

The baseline assumes no change in the regulatory program under consideration and serves as the primary point of comparison for an analysis of the final rule. EPA estimates industry may incur a total incremental cost of approximately $32,000 to $3.0 million annually. Note that the annualized cost is the same for both the 3% and 7% discount rates because the Agency assumes costs to be the same every year prior to being annualized. Because access to verifiable past data is limited, EPA currently does not have sufficient information available to support a quantitative analysis of the total benefits of this rule. EPA expects that the monitoring requirements of the final rule will inform dispersant use decision-making and reduce adverse environmental impacts of dispersant use.

Risks:

The final rule would establish new monitoring requirements under subpart J for dispersant use in response to major oil discharges and certain dispersant use situations in the navigable waters of the United States and adjoining shorelines. The type of discharge that the action focuses on are likely those that due to its severity, size, location, actual or potential impact on the public health and welfare or the environment, or the necessary response effort is so complex that it requires extraordinary coordination of federal, state, local, tribal, and responsible party (RP) resources to contain and clean up the discharge. This final action would complement the existing regulatory framework approach under subpart J and the broader National Contingency Plan; and ensures the response community is equipped with the proper data and information to authorize and use the products in a judicious and effective manner. The new provisions are a major component of EPA's effort to inform dispersant use in response to oil discharges, using the federal government's experiences in the Gulf of Mexico.