Dispersants are one of the tools available to mitigate detrimental impacts to shorelines and wildlife exposed to oil spills. In response to the Deepwater Horizon incident, the EPA authorized use of surface and subsurface dispersants. In mid-January 2015, the EPA announced that it would soon publish proposed rules in the Federal Register to address future use of dispersants.

Responses to oil spills are subject to the National Oil and Hazardous Substances Pollution Contingency Plan (NEP). The NEP was promulgated in the early 1990’s and is codified at 40 C.F.R. Part 300. Subpart J establishes the procedure and criteria for listing dispersants authorized for use in a spill. These chemicals are listed in the NCP Product Schedule.

The proposed changes affect various parts of the NCP with the majority of the changes affecting dispersant use. These requirements are generally located in 40 C.F.R. §300.900 – 920. As a general matter, the EPA proposal requires a greater availability of data concerning a dispersant, such as its efficacy and toxicity, coupled with instructions for its application in the field. The focus of the proposal is to assure that decision makers, such as the On-Scene Coordinator, Regional Response Team, and Area Committees have sufficient information to develop “preauthorization” plans, make informed decisions, and when needed, monitor the dispersant’s performance where application occurs over a period of time.

In addition, the EPA is proposing to minimize the ability to claim Confidential Business Information (CBI). Under the proposal, the only information that qualifies as CBI is “the concentration and the maximum, minimum, and average weight percent of each chemical compound or microorganism in your product.” (Proposed revision to §300.950(b)). The CBI claim, along with the confidential information, must be submitted at the same time as the information that supports the request to list a chemical in the NCP Product Schedule.

Comments will be accepted on the proposal during a 90-day period following publication in the Federal Register. Publication is anticipated before the end of January 2015. Comments will only be accepted through the official docket: EPA-HA-OPA-2006-0090.