January 30, 2020. Plaintiffs—ALERT Project/ Earth Island Institute, Alaska Community Action on Toxics, Cook Inletkeeper, Center for Biological Diversity, Rosemary Ahtuangaruak, and Kindra Arnesen—filed a lawsuit against the U.S. Environmental Protection Agency and its Administrator in the U.S. District Court for the Northern District of California.  The UC Berkeley Environmental Law Clinic is the lead counsel, and the Center for Biological Diversity is co-counsel in the case. 

Our complaint has two distinct claims, arising under two different statutes. Both claims relate to EPA rules governing dispersant use, which are contained in the National Contingency Plan (NCP or Plan). The NCP—which is required by the federal Clean Water Act— is the nation’s emergency response plan for oil spills. EPA proposed to update the rules governing dispersant use in  2015 through a public process known as a rulemaking. The updated proposed rule was never finalized. The existing rules governing dispersant use are very outdated: they were last modified 26 years ago and are based on last century’s science and technology. 

• Our first claim under the Clean Water Act asserts that EPA is violating its mandatory duty to maintain an updated oil spill emergency response plan that is based on current science and technology.     

• Our second claim under the Administrative Procedures Act asserts that EPA is violating this law by its unreasonable delay in issuing a final rule for dispersant use and taking final action on the Plaintiffs’ 2012 and 2014 petitions for this rulemaking.

 

Clean Water Act claim timeline.

March 31, 2020. U.S. EPA filed a brief urging the court to dismiss  (i.e., eliminate) our Clean Water Act claim, arguing that “amendments to the NCP are initiated at the discretion of the agency” – meaning at the agency’s whim or pleasure. EPA argued that a “date-certain deadline . . .  is necessary to constitute a nondiscretionary duty.” 

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April 14, 2020. Plaintiffs opposed the government’s brief, arguing that EPA cannot have unlimited discretion over updates to the NCP (or, as here, a lack of updates) when the Clean Water Act requires “efficient and effective action to minimize harm from oil and hazardous substance discharges . . .” In this case, the Plaintiffs contend that EPA has already determined that amendments to the NCP are advisable and, thus, is now under a nondiscretionary (mandatory) duty to update the Plan in accordance with improvements in scientific and technological knowledge.

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April 23, 2020. EPA replied to the Plaintiffs’ response, arguing that because the Plaintiffs have failed to identify a nondiscretionary duty, there is no waiver of sovereign immunity under the Clean Water Act to allow this claim against the agency. However, the EPA concedes: “It is true that, if the Court were to find that Plaintiffs have identified a nondiscretionary duty, EPA’s liability would be clear since there is no dispute that EPA has not yet finalized a rulemaking process to amend the NCP.”

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May 6, 2020. U.S. Magistrate Judge William Orrick considered the matter (at a virtual hearing conducted by Zoom) and verbally indicated that he was tentatively inclined to rule for Plaintiffs. The Court will issue its written decision on the matter.

 

Fossil fuel industry’s bid to intervene as defendants. 

April 7, 2020. Meanwhile, the American Petroleum Institute (API) is trying to intervene in the case as a defendant. API’s members are deeply engaged in the exploration for and development of offshore oil and gas resources and operate drilling units, offshore platforms, and pipelines. Offshore drilling is regulated by the U.S. Department of Interior, not the EPA. Interior’s regulation and oversight of offshore drilling does, however, implicate various EPA regulations, including the NCP. 

Before conducting drilling activities under an approved exploration or development plan, a lessee must obtain the Interior Department’s approval of an application for a permit to drill. As a condition for operation, every offshore oil drilling unit, offshore platform, and pipeline seaward of the coastline must have a Department-approved “oil spill response plan.” Each oil spill response plan must contain a “dispersant use plan,” which specifies the inventory and location of dispersants and other agents that might be used in the event of a discharge of oil. A dispersant use plan must be consistent with the National Contingency Plan. The operations of API’s members are, therefore, regulated by the contents of the National Contingency Plan.

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April 15, 2020. Plaintiffs filed a response opposing API’s motion to intervene. Plaintiffs argued that the fossil fuel industry could not claim a “significantly protectable interest” in this lawsuit (which is one requirement for intervention), where the current dispute is simply over the timing of an NCP update, rather than about the substance of any new NCP regulation that EPA may issue. 

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April 28, 2020. The American Petroleum Institute disputed the Plaintiffs’ timing-only claim, arguing that “API is entitled to intervene to protect its members’ interests in maintaining the status quo.” In other words, API would like to keep the 26-year old Plan that allows expedited and unlimited use of dispersants, a product now known to be toxic to people and wildlife.

Judge Orrick declined to hold a hearing on the intervention issue and will instead issue a written decision based on the parties’ briefs.

 

ALERT v. EPA makes law! Ruling a “game-changer”

June 2, 2020. U.S. Magistrate Judge William Orrick ruled that the Clean Water Act requires the EPA to keep the nation’s oil spill response plans current and effective. New research has linked chemical dispersants, heavily used during the 2010 BP spill response, with long-term illnesses in humans and wildlife. The EPA has failed to consider such “trade-offs” when promoting the benefits of dispersants and instead allows dispersant use based on 26-year-old science. The ruling is a game-changer.

The Court also denied a motion by the fossil fuel industry to intervene in support of the EPA.

These rulings do not resolve our entire lawsuit, however, they do improve our chances of obtaining a timely update to the NCP that takes into account scientific advances and understanding over the last 25 years.

 

EPA stalls case

July 22, 2020, EPA filed a motion requesting that Judge Orrick reconsider his reasoned ruling on our Clean Water Act claim. EPA claimed that the Judge did not specifically address various issues it raised in its motion to dismiss our case. However, the Judge's written opinion and the hearing transcripts both show that these issues were in fact amply vetted. This seems to be yet another example of EPA stalling despite the urgent need to update the National Contingency Plan for offshore oil spill response actions in order to better protect first responders, the public and wildlife.

 

Judge rejects reconsideration: stays the course

September 1, 2020. The District Court rejected EPA’s motion to reconsider its motion to dismiss the court’s earlier landmark ruling that required EPA to keep the nation’s oil spill response plans current and effective. In the September ruling, the Judge wrote that “EPA’s arguments amount to an improper repetition of the arguments that it made in its motion to dismiss, which I rejected.” In staying the course, EPA can either go to trial or settle the case. Time will tell what path they choose.

 

Next step: Motion for Summary Judgement

March 17, 2021.  With our Clean Water Act win in hand, our growing legal team – now supported with four Berkeley Environmental Law Clinic students – will file a Motion for Summary Judgment on our remaining “unreasonable delay” claim under the Administrative Procedures Act. This motion allows parties to expedite the resolution of a case where, as here, the outstanding issues are purely legal and there is no factual dispute. We feel confident that Judge Orrick will find in our favor, just as he did when he held that EPA has a firm duty under the Clean Water Act to update our nation’s oil spill emergency response plan based on current science and technology.

 

ALERT files Motion for Summary Judgment

April 20, 2021.  ALERT asked the court for summary judgment in our favor on the matter of the EPA’s unreasonable delay over finalizing rules governing dispersant use. We are also asking for injunctive relief – a Court order – to issue a proposed new rule within 90 days of the Court order, with the hope that EPA will base the rule on the most current science, in particular the emerging science showing long-term harm to people and wildlife. Further, we are asking the Court to order the EPA to provide a written status report of progress within 180 days of the Court order; and to issue a final rule within one year of the Court order. The hearing on the motion is scheduled for July 7, 2021.

 

 

EPA files its opposition to ALERT’s MSJ and its own Cross-Motion for Summary Judgment

May 20, 2021.  In this dual-purpose filing, EPA first countered, and then asked the Court to deny, the plaintiffs’ requests for summary judgment on our unreasonable delay claim and our injunctive relief. Then EPA asked the court for summary judgment in its favor – basically the opposite of everything we wanted. EPA’s filing raises three key questions: 

First, whether we can preserve our unreasonable delay claim under the Administrative Procedure Act, given our win on the Clean Water Act claim (that EPA has a nondiscretionary duty to update the NCP based on current science). 

Second, if we prevail on one or both legal claims, whether EPA will be required to reissue its 2015 proposed rule to accommodate the current science, or whether it will only be required to issue a final rule – by a date certain.  

Third, whether, having unilaterally decided to split its final rule into two parts, EPA can delay until 2023 issuing a final rule on the most outdated parts of the NCP, which are literally based on last century’s science.  These parts address the authorization for use of dispersants and other chemical agents, and the data requirements for listing products on the Product Schedule. As for the reason for the delay, EPA explained a litany of excuses reminiscent of “the dog ate my homework.” For example, one excuse was that the oil industry had blocked access to the reference oils for the toxicity and efficacy tests that are required for product listing, and thus had stalled the entire rulemaking process. (Recall that APA stated in its unsuccessful motion to intervene that its oil and gas industry members benefited from “maintaining the status quo.” April 28, 2020)  

However, EPA is ready to proceed with a final rule on just one part: the brand-new environmental monitoring requirements for “atypical dispersant use.” This monitoring requirement sets the stage for a repeat of the 2010 BP Deepwater Horizon double disaster when, after a record volume of oil was released, record amounts of toxic oil-based dispersants were released daily for three months on the surface oil and subsurface oil gushing out of the wellhead. The long-term health consequences of such use were devastating for humans and wildlife and are still unfolding.  

 

 

EPA files a final brief supporting for its Cross-Motion for Summary Judgment

June 17, 2021.  Claiming that the plaintiffs failed to demonstrate that the NCP was “inefficient or ineffective,” EPA presented a counter-intuitive argument in its second brief supporting its cross-motion for summary judgment. EPA argued that plaintiffs’ willing participation in the rulemaking process demonstrates that the NCP is not inefficient or ineffective. According to EPA, the NCP is working, because updates are part of the process that makes the rules efficient and effective! Never mind all the science showing demonstrable harm to first responders, children and families, and wildlife from dispersants and from oil and dispersants combined. 

In support of its proposed remedy, EPA argued that it should not be prevented from splitting the rulemaking and releasing its final rules for monitoring atypical dispersant use. EPA claimed the monitoring provisions were not dependent on the availability of reference oils because the products to be monitored were already listed on the Product Schedule. However, the atypical use itself – subsea application of dispersants – is not yet included in the NCP. There are no rules for such application, and EPA wants to put off finalizing this part of the rulemaking until 2023. EPA has the cart two years ahead of the horse! 

Further, EPA flat challenged the court’s authority to require the agency to reissue the 2015 proposed rulemaking to accommodate the seven years of new science that have accrued during EPA’s foot-dragging on issuing a final, up-to-date NCP rule as the plaintiffs have requested. EPA claimed the court cannot direct the substance of the EPA rulemaking. 

 

EPA splits the final rule, and forges ahead with rules only for subsea dispersant application!

July 6, 2021.  At 6:30 PM on the eve of the court hearing on summary judgment, EPA informed the Court that it split the final rule into two parts and released a pre-publication notice for only the new rules on environmental monitoring for atypical dispersant use. In its pre-publication notice, EPA admits that the large volume of dispersant used, the daily applications for months, and the subsea direct injection, all of which first occurred during the 2010 BP DWH disaster response, were “neither envisioned nor addressed” in the current outdated NCP rules. By splitting the rules in two, EPA postponed a final rule on the main issue of whether atypical dispersant use should even be allowed in the first place while rushing ahead with a rule for “comprehensive environmental monitoring” of such use – which envisions precisely this use. Further EPA’s rule would allow unlimited amounts of dispersants to be used on subsurface oil spills and the oil spiller to conduct monitoring for impacts for the spill that it created. No conflict of interest there... 

Further, if comprehensive environmental monitoring is required for subsea dispersant use, it would make sense for EPA to require it anytime and anywhere dispersant is used in the new rules. But no: in its pre-publication notice, EPA disagreed with “extending these new specific requirements to all instances of dispersant use,” claiming that the On-Scene Commander (OSC) already has the authority to require such monitoring. But the OSC’s authority would also extend to subsea dispersant use, should it be authorized in the final rule. EPA’s temerity on this point exposes this partial rule for what it is – official permission for the oil and gas industry to use an apparent blessing of subsea dispersant injection while buying the oil industry time as EPA continues to avoid doing what it is legally required to do; i.e., determine what products, how much of a product, and where such products can be used safely in waters of the U.S.

 

Judge leans in favor of ALERT at hearing on summary judgment

July 7, 2021.  District Judge William Orrick opened the hearing by saying he was “delighted” by EPA’s progress towards a final rule and that he was “leaning towards approving” the plaintiffs’ summary judgment on the merits and towards EPA’s proposed remedy of postponing the final rules until 2023. If the final decision reflects this intent, it will mean that our Clean Water Act win remains intact, and we would also prevail on our unreasonable delay claim. 

As for our request that EPA reissue the proposed rule, our lead counsel Claudia Polsky argued  against a split ruling, stating, “it’s not the monitoring that causes harm, it’s the use.” She raised three points to counter the split ruling and promote reissuing a comprehensive rulemaking to accommodate the new science. First, if EPA can’t obtain the reference oils, then perhaps EPA needs to rethink this requirement as it is no guarantee that this oil would be available by 2023 either. Second, a split rulemaking is a significant deviation from the initial proposal and that, while plaintiffs have been privy to this plan in the confidential context of settlement discussion, it will surprise the public. And third, it would be most efficient and effective for everyone to include the past seven years (and counting), of science that has been published during the years of EPA’s unreasonable delay. In short, the plaintiffs have waited a long time for this rulemaking, yet it is more important to us to have EPA do it right than to do it piecemeal. 

Now we await the Judge’s decision; he indicated we would not have long to wait.

 

EPA pulls a fast one – Issues final rule on monitoring of “atypical dispersant use”

July 27, 2021.  Pressed by the likelihood of an unfavorable final court ruling, EPA published its final rule on monitoring atypical dispersant use. The rule announcement reveals that the federal government and oil industry have been ready to go with subsurface dispersant use since 2013! The outdated rules do not authorize such use. The 2015 rulemaking proposed authorizing such use, but final rules have not been issued yet and are part of ALERT’s “unreasonable delay” claim that await the court’s final ruling.

If this doesn’t make sense, it’s because it doesn’t. Consider this: The federal government has allowed the oil and gas industry to expand further offshore into very deep water, into the remote Arctic, and elsewhere, all based on response plans that relied on dispersant use – which is based on scientific testing protocols that were written over a quarter of a century ago. The new science does not support dispersant use. EPA’s new rule on monitoring atypical dispersant use signals that the Biden Administration, like the Trump and Obama Administrations before it, is envisioning exactly such use during the next oil disaster. Unlimited use. Prolonged duration. Subsurface use to support offshore drilling. This fight to ban toxic dispersants is far from over.

 

Court victory!

August 9, 2021.   A federal district court ruled in favor of the public interest by ordering the U.S. Environmental Protection Agency (EPA) to update its decades-old regulations on the use of toxic chemical dispersants in oil spill responses. Specifically, the court ruled that EPA now has a mandatory “duty to update the NCP when there is new information that shows that the current standards for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance pollution are insufficient to safely provide for mitigation of any pollution.” Further, the court ruled that ALERT’s EPA claim did not preclude its “unreasonable delay” claim under a different law and that “EPA’s delay is unreasonable and compelling agency action.”

 

As to the timeline for the update on authorizing where, when, what, and how much dispersant may be authorized for use based on current science, EPA is now under court supervision to accomplish this by 2023 – with updates on progress every 180 days.

The court victory is a game-changer as it will require the EPA to update its regulations governing oil spill planning and response – and hazardous substance pollution – based on current science. But it is shadowed by a certainty that controversial atypical dispersant use will likely be authorized, especially for offshore well blowouts like the BP Deepwater Horizon or for large oil tanker spills like the Exxon Valdez. EPA signaled with its new monitoring rule that it is envisioning exactly such use during the next large oil disaster.

EPA has thirty days to appeal the court’s ruling.

 

ALERT, Gulf Coast allies request action from EPA Administrator

September 30, 2021.  Gulf coast community organizations and allies for environmental justice sent a letter to EPA Administrator Regan requesting four immediate actions in relation to ongoing dispersant litigation and the associated EPA rulemaking:

1. Let the August 9, 2021, court decision stand – do not appeal it.
2. Withdraw the final rule on monitoring for atypical dispersant use (issued July 27, 2021; effective January 22, 2022).
3. Immediately reopen the 2015 rulemaking with a 45-day public comment period to include relevant science from 2015 to 2021.
4. Issue one final rule in its entirety by the court-ordered deadline of May 31, 2023.

 

We believe these actions are critical to preserve the intent and integrity of the EPA rulemaking process and citizen participation in it. We also believe these actions are necessary to protect the health and wellbeing of ourselves, our families, and our communities. The letter was copied to the White House Environmental Justice Advisory Council and EPA regional administrators, among others. Read the letter here.

 

EPA appeals district court’s decisions

October 7, 2021.  EPA notifies the Ninth Circuit that it intends to appeal Judge Orrick’s August 9 ruling in our favor. EPA’s brief is due January 18, 2022, at which point we will know more about which aspects of the ruling EPA takes issue with.

 

EPA drops appeal!

November 8, 2021.  EPA voluntarily withdrew its appeal of our lawsuit. As a result, the court’s order for EPA to update the NCP for oil spill response based on current science STANDS. The court’s order to compel EPA to action based on unreasonable delay of its rule to determine what dispersants can be used safely STANDS. And the court judgment to impose a deadline of May 31, 2023, to complete the rule updates under court-ordered supervision STANDS.

 

ALERT, Gulf Coast and other allies for environmental justice request action from U.S. President

December 27, 2021.  ALERT, Gulf coast community organizations, and other allies for environmental justice sent a letter to President Biden requesting two immediate actions in relation to ongoing dispersant litigation and the associated EPA rulemaking:

1) Order EPA to withdraw its final rule on monitoring of atypical dispersant use, issued on July 27, 2021, before it goes into effect on January 24, 2022; and

2) Order EPA to issue one comprehensive rule in its 2015 proposed rulemaking, on or before May 31, 2023, based on the latest science, i.e., to present.

 

We believe these actions are critical to preserve the intent and integrity of the EPA rulemaking process and citizen participation in it. The decision on whether atypical dispersant use should even be allowed in the first place awaits a final rule.  The July 2021 rule on monitoring such use is premature and not based on current science. Support for each our requests is provided by a brief history of this rule and examples of key scientific studies that were not considered in this rulemaking (Appendix A and B, respectively). Read the letter here.

 

Atypical dispersant use monitoring rules go into effect

January 24, 2022. Despite last-minute efforts by ALERT, neither the executive nor the legislative branch could stop the rollout of EPA’s final rule on environmental monitoring of “atypical dispersant use situations.” This was defined as “[a]ny subsurface use of dispersant in response to an oil discharge, surface use of dispersant in response to oil discharges of more than 100,000 U.S. gallons occurring within a 24-hour period, and surface use of dispersant for more than 96 hours after initial application in response to an oil discharge.”
Dispersant use in such situations is not authorized under the existing NCP but the lead federal coordinator during oil spill response can allow it through its discretionary powers. During the BP DWH oil disaster, unprecedented amounts of dispersants were applied experimentally and simultaneously in the subsea and at the surface. Field samples were collected, separately, by BP and the federal government. Studies based on the field samples, instead of theoretical modeling, and long-term epidemiology studies provide strong evidence for a radical reconsideration of any dispersant use. But most of these studies were published after the 2015 proposed rule was open for public comment. Approval for atypical dispersant use depends on whether EPA anchors its final rule in
May 2023 on the science that came out after the 2015 proposed rule was opened for public comment. The court order did not specifically require the EPA to update its proposed rule based on the scientific information available after its 2015 proposal.

 

EPA’s first status report fails to report on key issue

February 2, 2022. EPA’s first status report fails to provide an update on one of the key arguments it used in court to delay the final rule until 2023. Over a year ago on May 20, 2021, EPA told the court that the oil industry had blocked access to the reference oils that EPA needed for the toxicity and efficacy tests required for product listing. This alone could stall the entire rulemaking process. At the time, lead attorney Claudia Polsky had argued that if EPA can’t obtain the reference oils, then perhaps EPA needs to rethink this requirement as it is no guarantee that this oil would be available by 2023 either. There is no indication from EPA’s status report that it has procured the reference oils and, if not, that it is making progress towards this end.

 

EPA reply to September 2021 letter inspires no confidence

May 16, 2022. Nearly six months after receiving a coalition letter from ALERT, EPA replied, stating that the agency and Dept. of Justice decided not to appeal the federal district court decision and that it “is working through its action development process to ensure a final rule” by the court-ordered deadline of May 31, 2023. EPA stated that it and its National Response Team partners – sister agencies and the oil industry – already “took action to address health concerns potentially associated with dispersant use raised in recent publications.” Yet the four actions fall short of stated intent for the following reasons.

Regarding public health, EPA states that the federal On-Scene Coordinator (OSC) for oil spills in the coastal zone, the US Coast Guard, “has broad authority to address substantial threats to public health or welfare of the United States.” During the BP DWH disaster, the USCG authorized unprecedented use of dispersants by subsurface injection and aerial or surface spraying offshore for nearly three months.

Surface spraying in coastal waters continued well into the fall. This was all experimental. The long-term consequences of this large-scale experiment are now in for public health. For example, one study found that the ambient air concentrations of benzene and fine particulate matter (both human health hazards) in southeastern Louisiana during the peak five months of oil spill response exceeded public health standards and should have been a cause for concern and preventative action.1

Another study on women and their children in the same region found an association between BP oil spill exposure and increased incidence of low birth weight and premature born infants, with more pronounced adverse infant health outcomes for black, Hispanic, less educated, unmarried, and younger mothers. 2 Yet these current studies on ambient air quality and public health during the 2010 oil spill response were not referenced in EPA’s reply.1

Regarding the protection of first responders, “another key priority for the agency,” EPA referenced a 2018 guidance document and a 2021 follow-up guidance that updated the personal protective equipment selection matrix (PPE matrix) for oil spill response workers. But the On-Scene Coordinator is still responsible to decide the best means to comply with OSHA safety and health regulations, so nothing really has changed. Past OSC actions have demonstrably not worked to protect first responders.

The two epidemiology studies on which these guidances are based found long-term respiratory, neurological, and cardiovascular harm from oil spill exposure and that harm increased with oil-dispersant exposure. 2 These studies also noted that there are no OSHA standards for complex mixtures of oil compounds with or without dispersants. Other studies noted that using groups of compounds like volatile organic compounds (VOCs), total hydrocarbons (THCs), or PAHs (polycyclic aromatic hydrocarbons(PAHs), as a proxy for oil spill exposure grossly underestimates exposure risk because traditional analytical methods do not detect all the potentially hazardous oil components.

Regarding protecting the environment, EPA cites a recent study by the Government Accountability Office (GAO) for more studies to “examine potential effects of the subsurface use of dispersants on ocean ecosystems.”

The GAO report does not raise or even recommend examining, the fundamental question of whether dispersants can be used safely in any waters of the U.S., or at a minimum, if dispersant use must be banned in certain waters (like state waters) and drastically restricted in others.

Current studies provide enough information to make informed decisions about dispersant use now. For example, current measurement-based studies have failed to show that subsurface use mitigates shoreline oiling or enhances biodegradation, which are two of the key arguments made for any dispersant use. Also, studies found that less than 5% of the liquid oil was trapped at depth as micro-droplets, which makes the overall contribution of dispersant-mediated weathering at depth minor. 3

In addition, current studies have found that aerial and surface spraying of dispersants creates a human health hazard and a potential for widescale harm from broadcast application. It is time to act – to reconsider dispersant use, including atypical dispersant use – to minimize future harm to people, wildlife, and the environment during oil spills. 4

1. Public health studies: Nance et al., 2016 ; Beland and Oloomi, 2019.
2. Respiratory studies: Alexander et al., 2018; Rusiecki et al., 2022 (USCG); McGowan et al., 2017 (GuLF).
   Cardiovascular studies: Denic-Roberts et al., 2022 (USCG); Strelitz et al., 2018, (GuLF)
   Neurological studies: Jayasree et al., 2019; Erickson et al., 2018 (USCG); Quist et al., 2019 (GuLF)
3. Subsea studies: Paris et al., 2018; Payne and Driskell, 2018; Driskell and Payne, 2018; Gros et al., 2017
4. Aerosol studies: Afshar-Mohajer et al., 2018;  Afshar-Mohajer et al., 2019

 

ALERT petitions EPA to supplement its 2015 proposed rule with current science

June 23, 2022. An ALERT coalition of individuals, environmental justice, and climate justice groups took action to step up pressure on EPA to ensure that the regulatory process considers the new data and information. The coalition petitioned EPA to supplement its 2015 proposed rule with current science before finalizing the rule in May 2023. The current science calls for a radical rethinking of dispersant use in the deep sea, in the surface, and in coastal waters. Petitioners listed five demands, starting with reconsidering subsea dispersant use because current measurement-based studies have failed to show that such use mitigates shoreline oiling.

Additionally, EPA should reconsider spraying of dispersants on surface waters because current studies have found that such use creates a human health hazard and a potential for widescale harm from the broadcast application. And the agency should reconsider dispersant use in state waters because the known hazards of such use within 3 miles of coasts is irrefutable to people and wildlife, documented by residents, and validated by current science that shows exposure to chemically dispersed oil is more harmful than to oil alone.

The petition also asks EPA to reconsider dispersant use, given the current scientific findings that direct consequences of such use include the unexpected and exceptional sinking of oil to the ocean bottom and suppression of biodegradation of oil instead of aiding it. The National Oil and Hazardous Substances Contingency Plan prohibits use of sinking agents, and only allows products that aid biodegradation.

Finally, the petition asks EPA to reconsider dispersant use, based on the current scientific findings of mechanisms of action and disease pathogenesis, from molecular and cellular effects to organ dysfunction and systemic effects that compromise fitness, growth, reproductive potential, and survival — or, in cases of high concentrations, to multiple organ failure and death — in humans and wildlife from exposure to chemically-dispersed oil.

Our petition concludes that it now seems that dispersants cannot be used safely in any waters of the U.S., or, at a minimum, dispersant use must be banned in certain waters (such as state waters) and drastically restricted in others. Failure by EPA to take current science into account will be a dereliction of its duties under the Clean Water Act.

 

ALERT requests Letter of Interpretation for OSHA cold/flu exemption

July 7, 2022.  ALERT requested a letter of interpretation from OSHA of 1904.5(b)(2)(viii), an exemption to recording and reportability of an illness, which states an employer is “not required to record illnesses or injuries if… [t]he illness is the common cold or flu.” Specifically, ALERT asked how OSHA determines whether the common cold and flu is the source of an employee's illness – or an occupational exposure to oil or chemicals with initial symptoms that mimic symptoms of common colds and flu.

 

Court case piques Congressional interest and oversight

July 28, 2022. U.S. Senator Markey and U.S. Representatives Barragán and Khanna sent an oversight letter to EPA, urging it to update and strengthen its proposed rule on dispersant use before finalizing it based on current science. The letter states, “New scientific research has demonstrated an urgent need for stronger regulations that better reflect the latest understanding of the risks that certain dispersants can pose to the environment and public health.”

The congressional letter then goes on to request more detailed information to “better understand EPA’s progress in issuing a long-overdue final rule on chemical dispersants that adequately protects human and ecological health.” The requests reveal a comprehensive understanding from the downstream symptoms of long-term harm to people and wildlife stemming from use of oil dispersants – to the upstream problems created by EPA’s failure to involve local governments and citizens in oil spill response planning.

For example, in the Oil Pollution Act of 1990, Congress tried to include local communities in oil spill preparedness and response planning. Critically, Congress tasked the states and local citizens with determining whether, or not, to use dispersants, as the local people would live with (or die from) the consequences of such use. When the EPA failed to implement key parts of the law, it allowed regional-level planners to usurp the authority of states and local communities. Like cascading dominoes, this led to a deadly situation for people and wildlife. During the BP disaster, the U.S. Coast Guard allowed experimental use of unlimited quantities of toxic dispersants in the deep sea and on the sea surface without first determining whether such use could be done safely—which proved to cause devastating harm to people and wildlife. The congressional letter calls for a written reply by August 30, 2022.

 

EPA’s second status report reveals intent to finalize rule without current science

July 29, 2022. EPA’s second court-ordered status report again failed to provide an update on reference oils (see February 2, 2022, entry). It further reveals no initiative from the EPA to supplement its proposed rule with current science. Instead, it suggests steady progress towards a final rule that is outdated before it is published. The more recent literature, showing that dispersants cause long-term harm to people and wildlife, raises a fundamental question of whether dispersants can be used safely in any waters of the U.S., as required by the Clean Water Act. If the EPA ignores this question—and the current science—it will be at the public’s peril.

 

Updates to & closure of ALERT legal narrative.

EPA’s reply to congressional oversight letter unsatisfactory.

 

September 20, 2022.  The EPA provided no new information in its brief reply to a congressional oversight letter that urged the agency to update and strengthen its proposed rule on dispersant use before finalizing it. Instead, the agency restated its commitment to “using sound science” (a nebulous term that means different things to different people) and to continue coordinating with its National Response Team agency partners “to address broader oil spill preparedness and response issues, including how to best minimize the potential for long-term environmental and health impacts resulting from an oil spill and the associated response activities.” Regarding better public engagement, EPA encouraged participation through regular meetings of the Area Committees and Regional Response Teams to “highlight issues for consideration and bring community perspectives into planning and preparedness efforts.” Regarding the specific information requested for the 2021 oil spill off the coast of Orange County, California, EPA deferred to the U.S. Coast Guard as the Unified Command lead for that spill.

 

EPA’s third status report shows intent to meet the court deadline of 5/31.

January 30, 2023.  EPA’s third status report shows the agency’s progress towards completing the internal and interagency review processes and other steps required to release the final rule by or before the court-ordered deadline of May 31. 

Petition Calls on OSHA to Protect Oil-Spill Response Workers.

February 13, 2023.  ALERT and allies petitioned the U.S. Occupational Safety and Health Administration (OSHA), calling on the regulatory agency to provide greater protection to oil-spill-response workers. In an act of solidarity, the petition was signed by a broad spectrum of stakeholders, including oil-spill response workers, fishermen, environmental health advocates, the National Tribal Emergency Management Council, and the Northwest Tribal Emergency Management Council. Read more here and here. 

 

The rule change would require employers to record cold- and flu-like symptoms among workers during oil spills and to report the illnesses in real time to OSHA. In the case of oil spills, this has significant consequences. Oil spill exposures are associated with a characteristic set of initial symptoms that mimic cold- and flu-like symptoms. Early diagnosis and treatment of symptoms of toxic exposure is critical to reduce or prevent chronic illnesses and cancers, studies have found.

 

This petition is the formal start of a new advocacy efforts to reduce use of toxic products during oil spill response by updating protections for emergency responders and the public. Documents relating to the OSHA petition and developments relating to ALERT’s request for a letter of interpretation from OSHA on its exemption for reporting/recording common colds and flu can be followed here.

 

EPA Toughens Rules on Chemical Dispersants Used to Break Up Oil Slicks.

Rules Are an Improvement but Further Local Action Will Be Essential to Implement Them

 

June 12, 2023.  Prodded by a 2020 Earth Island/ALERT Project lawsuit, the U.S. Environmental Protection Agency (EPA) updated its rules governing use of dispersants and other oil-spill-mitigating products. The revisions are a welcome policy change after 29 years as the EPA closed many loopholes of concern that have allowed toxic products to be used for decades. For example, the NCP will now provide, on a nationwide basis:

• Improved testing of the efficacy and toxicity of dispersants before they are listed on the NCP “product schedule” as permissible for use in oil response efforts.
• Delegation of critical decision-making authority to local, state, and regional planners, allowing them to set even more stringent standards for the use of dispersants and other oil-mitigating products.
• Public notification of when chemical and biological agents are deployed in emergency response situations.
• Significantly greater public disclosure of data relevant to dispersants’ chemical constituents, environmental fate, intended uses, and health and safety effects by prohibiting manufacturers from withholding this as “proprietary business information.”
• Removal of products based on misleading, inaccurate, outdated, or incorrect statements regarding product composition or use, including advertisements, technical literature, electronic media and more.

 

However, EPA neither requires nor prevents the potential use of dispersants in significant quantities on the sea surface and at depth during very large oil spills – exactly what occurred during the BP Deepwater Horizon disaster with deadly consequences for response workers, impacted residents, and the environment. 

By delegating authority to local, state, and regional planners to decide what products to use during spill response, the new rules attempt to provide tools and authority to states to better protect their wildlife and residents, i.e., the people who will live with the consequences of product use. But the rules mean nothing if the states don’t use them, if state efforts are not properly funded, or if regional planners don’t respect the states’ authority. 

After the final rule date becomes effective on December 11, 2023, the EPA will allow all products currently on the national schedule to remain conditionally listed for another two years to be retested under the new protocols. All products that have not submitted the required information and been relisted on the schedule at the end of the conditional listing period on December 11, 2025, will be removed from the list. 

Read more about the rule’s impact here and the backstory of this rulemaking here. 

What’s next?

This concludes our lawsuit but not our work! Please subscribe to our newsletter and follow us to learn more about how we can protect ourselves and communities from hazardous exposures during oil spills and chemical releases. The next advocacy effort has already started –– follow it here.