In 1990, Congress passed the Oil Pollution Act, also known as the OPA. The act was in response to the Exxon Valdez oil spill in 1989, and it amended the Clean Water Act of 1972. Its purpose was to avoid oil spills from vessels and facilities, and it works by enforcing removal of spilled oil and assigning liability for the cost of cleanup and damages among responsible parties. In 1994, to support the OPA, the Environmental Protection Agency revised Subpart J of the National Contingency Plan. Subpart J governs the listing and use of dispersants and other chemical and biological agents when responding to oil discharges into waters of the United States. Subpart J of the National Contingency Plan remained virtually unchanged from 1994 until this year.
On May 31 of this year, the EPA announced that it passed final revisions to Subpart J of the National Contingency Plan. The new rules address the efficacy and toxicity of dispersants and other chemical and biological agents used to treat oil spills. Dispersants are chemicals applied onto the surface of oil slicks, or below the surface, to break the oil down into smaller droplets that more readily mix with water. While these agents do not remove the spilled material, the smaller droplets are more easily biodegraded and provide a measure of protection for habitats threatened by oil slicks. Clean-up crews usually spray dispersants onto spills with specially equipped boats or trains. However, large-scale spills sometimes require creative uses of the dispersants. These spills also require larger quantities of dispersants than initially anticipated in 1994.
The EPA began drafting the new rules in response to another oil spill – the Deepwater Horizon spill in 2010 — which implemented one of these creative uses. This Deepwater Horizon spill resulted in a discharge of oil from one mile below the surface. The spill created slicks over thousands of square miles in the Gulf of Mexico. To fight the spill, cleanup crews used over a million gallons of dispersants. They also injected the dispersants directly into oil gushing from the well risers. These injections were an out-of-the-box solution never used before. The intensity of this spill, and the required atypical use of the dispersants, raised questions about the safety of these methods in large-scale events. Some of the concerns regarding the use of these products include negative impact on marine life such as fish, sea turtles, corals, and birds. There are also potential risks to humans, including injury to red blood cells, kidneys, or liver.
To address these concerns, the EPA changed Subpart J in two significant ways. For the first change, the EPA added new listing criteria, revised the efficacy and toxicity testing protocols, and clarified the evaluation criteria for removing products from the National Contingency Plan Product Schedule. In the second change, the EPA amended requirements for the authorities, notifications, and data reporting when using chemical or biological agents to respond to oil discharges.
The new rules evolved as the result of a lengthy process. First proposed in 2015, the EPA reviewed and considered over 81,000 comments to the proposed rules before they became final. The drafters of these rules hope that the new requirements will encourage the development of safer and more effective spill mitigating products. They also designed the rules to better target the use of these products in order to reduce both the risks of oil discharges and the risks posed by the chemicals used to respond to them.
