One step almost forward, two steps definitely backward – EPA pulls a fast one 

On July 27, just weeks after the court indicated its inclination to rule in favor of the public interest in ALERT’s lawsuit on rules governing dispersant use, the EPA split its long-delayed final rule in two. The result is a further delay of the rules governing dispersant use while rushing ahead with a rule to monitor use that hasn’t been authorized yet. If this doesn’t make sense, it’s because it doesn’t. But it should make the oil and gas industry happy.


“API members – as regulated entities – will be impacted by any change to the status quo.”
American Petroleum Institute
API reply in support of motion to intervene
April 28, 2020


During the 2010 BP Deepwater Horizon (DWH) oil disaster, issues arose about dispersant use that were not addressed under our nation’s 27-year-old emergency oil spill response plan. Questions about whether dispersants should be used in the deep sea (“subsurface”) when the plan only authorized surface use. Questions about how much is too much when the need arose for daily use of large amounts of dispersants over weeks, then months. None of these “atypical” uses were envisioned or addressed in the outdated plan. But the U.S. Coast Guard authorized them all anyway, using its discretionary powers.


In 2015, the Obama Administration proposed to update rules governing product use, including dispersants, based on current science. The trouble is: the science post-BP disaster has found that dispersants when combined with oil, as they are designed to do, are now known to cause more harm to people and wildlife than the oil alone. This is an inconvenient truth for the oil and gas industry that benefits from the status quo – the old rules based on last century’s science that did not anticipate harm from dispersant use. 


“EPA believes that industry and OSROs (oil spill response organizations) have been preparing for the requirements of this rule since the 2013 issuance of the [federal] guidance document [on environmental monitoring for atypical dispersant operations], and notes API issued its own guidelines in 2013 on subsurface dispersant monitoring (emphasis added).

EPA, Federal Register, July 27, 2021


2013 was two years before EPA offered its proposed rule to the (rest of) the public – and four years before findings began to appear that linked long-term harm from oil-dispersant exposure to disabling chemical illnesses, long-term diseases, cancers, and deaths in BP spill responders and Gulf coast residents, including children.   


EPA maintains that “the requirements set forth in this action are informed by lessons learned during the Deepwater Horizon response…” But lessons learned by whom? Most individual public commenters opposed the use of toxic chemical dispersants because of lessons learned from the BP disaster response. 


The rule on atypical dispersant use is a win-win for the oil and gas industry. By splitting the final rule in two, the EPA stalls the update on last century’s science – the part that API perceives to threaten the “status quo” – for at least another two years. A win for industry. By authorizing monitoring of “atypical dispersant use,” EPA signals that it is envisioning exactly such use during the next oil disaster. Another win for industry.


Even worse, instead of monitoring all dispersant use, as the public wanted, EPA limited the final rule to only what the industry has wanted since 2013 – subsurface application and prolonged surface use. Further, the final rule leaves the monitoring to the spiller, which recent history has shown to be a terrible idea. Based on its water monitoring in 2010, BP concluded subsurface dispersant use reduced surface air levels of hydrocarbons. However, when independent scientists analyzed BP’s water monitoring dataset, they concluded subsurface oil distribution was entirely controlled by temperature- and pressure-dependent processes – and recommended against such use. As for air quality, other independent scientists reported dangerous levels of oil were present in the air for months after the well was capped. These findings were published after the public comment period in the 2015 rulemaking had closed.


At this critical juncture, we await a court ruling in our lawsuit – and we will be looking for other opportunities to address our nation’s dangerously outdated emergency oil spill response plan.