Comments on Proposed Revisions to Subpart J of the 1994 National Contingency Plan

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) provides the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances. Subpart J of the NCP governs the use of chemical agents to control oil discharges, setting forth the criteria for listing an agent on the Product Schedule—a list of the dispersants and other spill-mitigating substances that responders may use in carrying out the NCP. Dispersants are chemical agents that emulsify and disperse oil into the water column. The Environmental Protection Agency (EPA) last amended Subpart J in September 1994. In light of research and lessons learned during and after the 2010 Deepwater Horizon underwater oil well blowout, the EPA proposed amendments to Subpart J in January 2015. Responders used a combined methodology consisting of containment and recovery techniques, in-situ burning, and chemical dispersant application to lessen the environmental impact of the Deepwater Horizon event. Responders applied nearly two million total gallons of dispersants at the surface and subsea, a controversial and unprecedented decision. When choosing this methodology, responders weighed the potential benefits of intervention against possible collateral harms. But with an outdated contingency plan and Product Schedule, responders lacked data that could have helped to inform their risk analysis. The EPA’s proposed amendments address this concern. This Paper comments on the satisfactoriness of the EPA’s 2015 proposed amendments for the following sections of Subpart J: section 300.915, which details data and information requirements for listing on the Product Schedule, focusing on the proposed efficacy and toxicity testing methodologies; proposed section 300.950, newly limiting the submission of claims of confidential business information; proposed section 300.970, providing grounds for the removal of a dispersant from the Product Schedule; and section 300.910, which governs the authorization of an agent for use during a spill response. Furthermore, this Comment recommends that, in order to uphold the NCP’s command to apply a response methodology most consistent with protecting the environment and public health, the EPA should formalize a two-phase response plan into Subpart J, thereby only permitting the use of dispersants after an informed weighing of the tradeoffs indicates that containment and recovery techniques alone cannot satisfy this mandate