National Oil and Hazardous Substances Pollution Contingency Plan; Monitoring Requirements for Use of Dispersants and Other Chemicals

CourtEnvironmental Protection Agency
Citation86 FR 40234
Record Number2021-15122
Publication Date27 Jul 2021
Federal Register, Volume 86 Issue 141 (Tuesday, July 27, 2021)
[Federal Register Volume 86, Number 141 (Tuesday, July 27, 2021)]
                [Rules and Regulations]
                [Pages 40234-40264]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-15122]
                [[Page 40233]]
                Vol. 86
                Tuesday,
                No. 141
                July 27, 2021
                Part II Environmental Protection Agency-----------------------------------------------------------------------40 CFR Part 300National Oil and Hazardous Substances Pollution Contingency Plan;
                Monitoring Requirements for Use of Dispersants and Other Chemicals;
                Final Rule
                Federal Register / Vol. 86, No. 141 / Tuesday, July 27, 2021 / Rules
                and Regulations
                [[Page 40234]]
                -----------------------------------------------------------------------
                ENVIRONMENTAL PROTECTION AGENCY
                40 CFR Part 300
                [EPA-HQ-OPA-2006-0090; FRL-4526.1-01-OLEM]
                RIN 2050-AH16
                National Oil and Hazardous Substances Pollution Contingency Plan;
                Monitoring Requirements for Use of Dispersants and Other Chemicals
                AGENCY: Environmental Protection Agency (EPA).
                ACTION: Final rule.
                -----------------------------------------------------------------------
                SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
                amending the requirements in Subpart J of the National Oil and
                Hazardous Substances Pollution Contingency Plan (NCP) that govern the
                use of dispersants, other chemicals and other spill mitigating
                substances when responding to oil discharges into waters of the United
                States. Specifically, this action establishes monitoring requirements
                for dispersant use in response to major oil discharges and/or certain
                dispersant use situations in the navigable waters of the United States
                and adjoining shorelines, the waters of the contiguous zone, and the
                high seas beyond the contiguous zone in connection with activities
                under the Outer Continental Shelf Lands Act, activities under the
                Deepwater Port Act of 1974, or activities that may affect natural
                resources belonging to, appertaining to, or under the exclusive
                management authority of the United States, including resources under
                the Magnuson Fishery Conservation and Management Act of 1976
                (``navigable waters of the United States and adjoining shorelines'').
                These new monitoring requirements are anticipated to better target
                dispersant use, thus reducing the risks to the environment. Further,
                the amendments are intended to ensure that On-Scene Coordinators (OSCs)
                and Regional Response Teams (RRTs) have relevant information to support
                response decision-making regarding dispersant use.
                DATES: This final rule is effective on January 24, 2022.
                ADDRESSES: EPA has established a docket for this action under Docket ID
                No. EPA-HQ-OPA-2006-0090. All documents in the docket are listed on the
                http://www.regulations.gov website. Although listed in the index, some
                information is not publicly available, e.g., CBI or other information
                whose disclosure is restricted by statute. Certain other material, such
                as copyrighted material, is not placed on the internet and will be
                publicly available only in hard copy form. Publicly available docket
                materials are available electronically through http://www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: For general information, contact the
                Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800-424-9346
                or TDD at 800-553-7672 (hearing impaired). In the Washington, DC
                metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil
                Information Center at 703-412-9810 or TDD 703-412-3323. For more
                detailed information on this final rule contact Gregory Wilson at 202-
                564-7989 ([email protected]). The contact address is: U.S.
                Environmental Protection Agency, Office of Emergency Management,
                Regulations Implementation Division, 1200 Pennsylvania Avenue NW,
                Washington, DC 20460-0002, Mail Code 5104A, or visit the Office of
                Emergency Management website at http://www.epa.gov/oem/.
                SUPPLEMENTARY INFORMATION: The contents of this preamble are:
                I. General Information
                II. Entities Potentially Affected by This Proposed Rule
                III. Statutory Authority and Delegation of Authority
                IV. Background
                V. This Action
                 A. Monitoring the Use of Dispersants
                 B. Information on Dispersant Application
                 C. Water Column Sampling
                 D. Oil Distribution Analyses
                 E. Ecological Characterization
                 F. Immediate Reporting
                 G. Daily Reporting
                VI. Overview of New Rule Citations
                VII. Statutory and Executive Order Reviews
                 A. Executive Order 12866: Regulatory Planning and Review and
                Executive Order 13563: Improving Regulation and Regulatory Review
                 B. Paperwork Reduction Act (PRA)
                 C. Regulatory Flexibility Act (RFA)
                 D. Unfunded Mandates Reform Act
                 E. Executive Order 13132: Federalism
                 F. Executive Order 13175: Consultation and Coordination With
                Indian Tribal Governments
                 G. Executive Order 13045: Protection of Children From
                Environmental Health Risks and Safety Risks
                 H. Executive Order 13211: Actions That Significantly Affect
                Energy Supply, Distribution or Use
                 I. National Technology Transfer and Advancement Act
                 J. Executive Order 12898: Environmental Justice (EJ)
                 K. Congressional Review Act (CRA)
                Part 300--National Oil and Hazardous Substances Pollution
                Contingency Plan
                I. General Information
                 In April 2010, the Deepwater Horizon underwater oil well blowout
                discharged significant quantities of oil into the Gulf of Mexico. The
                blowout discharged oil from one mile below the sea surface.
                Approximately one million gallons of dispersants over a three-month
                period were deployed on surface slicks over thousands of square miles
                of the Gulf, and approximately three quarters of a million additional
                gallons of dispersants were, for the first time, injected directly into
                the oil gushing from the well riser. This raised questions about the
                challenges of making dispersant use decisions in response operations
                for certain atypical dispersant use situations. EPA is establishing new
                monitoring requirements under Subpart J of the National Oil and
                Hazardous Substances Pollution Contingency Plan (NCP) to address these
                challenges. Specifically in this action, the Agency establishes
                monitoring requirements for dispersant use in response to major
                discharges and/or certain dispersant use situations: Any 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. These new requirements are intended to address the
                challenges of atypical dispersant use situations, including those
                identified during Deepwater Horizon.
                 EPA estimates industry may incur a total incremental cost of
                approximately $32,000 to $3.0 million annually. Note that the
                annualized cost is the same for both the 3% and 7% discount rates
                because the cost is the same every year prior to being annualized. This
                action does not impose significant impacts on a substantial number of
                small entities. The Regulatory Impact Analysis, which can be found in
                the docket, provides more detail on the cost methodology and benefits
                of this action.
                [[Page 40235]]
                 Cost of the Final Rule
                ------------------------------------------------------------------------
                 Annualized cost, 20 years
                 -------------------------------
                 Annualized at Annualized at
                 3% 7%
                ------------------------------------------------------------------------
                Scenario 1--Low End..................... $32,124 $32,124
                Scenario 4--High End.................... 3,033,569 3,033,569
                ------------------------------------------------------------------------
                II. Entities Potentially Affected by This Proposed Rule
                ------------------------------------------------------------------------
                 NAICS code Industrial category
                ------------------------------------------------------------------------
                211120............................ Crude Petroleum Extraction.
                211130............................ Natural Gas Extraction.
                324110............................ Petroleum Refineries.
                424710............................ Petroleum Bulk Stations and
                 Terminals.
                424720............................ Petroleum and Petroleum Products
                 Merchant Wholesalers (except Bulk
                 Stations and Terminals).
                483111............................ Deep Sea Freight Transportation.
                483113............................ Coastal and Great Lakes Freight
                 Transportation.
                486110............................ Pipeline Transportation of Crude
                 Oil.
                ------------------------------------------------------------------------
                 The list of potentially affected entities in the above table
                includes oil exploration and production industries with the potential
                for an oil discharge into navigable waters of the United States and
                adjoining shorelines. The Agency's goal is to provide a guide for
                readers to consider regarding entities that potentially could be
                affected by this action. However, this action may affect other entities
                not listed in this table. If you have questions regarding the
                applicability of this action to a particular entity, consult the
                person(s) listed in the preceding section entitled FOR FURTHER
                INFORMATION CONTACT.
                III. Statutory Authority and Delegation of Authority
                 Under sections 311(d) and 311(j) of the Clean Water Act (CWA), as
                amended by section 4201 of the Oil Pollution Act of 1990 (OPA), Public
                Law 101-380, the President is directed to prepare and publish the NCP
                for removal of oil and hazardous substances. Specifically, section
                311(d)(2)(G) directs the President to include a Schedule identifying
                ``(i) dispersants, other chemicals, and other spill mitigating devices
                and substances, if any, that may be used in carrying out the Plan, (ii)
                the waters in which such dispersants, other chemicals, and other spill
                mitigating devices and substances may be used, and (iii) the quantities
                of such dispersant, other chemicals, or other spill mitigating device
                or substance which can be used safely in such waters'' as part of the
                NCP. The Agency has promulgated both the NCP, see 40 CFR 300.1 et seq.,
                and the schedule of dispersants as required by section 311 (d)(2)(G),
                known as the NCP product schedule. See 40 CFR 300.900 et. seq. The
                President is further authorized to revise or otherwise amend the NCP
                from time to time, as the President deems advisable. 33 U.S.C.
                1321(d)(3). The authority of the President to implement section
                311(d)(2)(G) of the CWA is delegated to EPA in Executive Order 12777
                (56 FR 54757, October 22, 1991). Subpart J of the NCP establishes the
                framework for the use of dispersants and any other chemical agents in
                response to oil discharges (40 CFR part 300 series 900).
                IV. Background
                 In the United States and around the world, chemical agents are
                among the oil spill mitigation technologies available that responders
                may consider. Subpart J of the NCP sets forth the regulatory
                requirements for the use of chemical agents, including provisions for
                product testing and listing, and for authorization of use procedures.
                These requirements provide the structure for the On-Scene Coordinator
                (OSC) to determine in each case the waters and quantities in which
                dispersants or other chemical agents may be safely used in such waters.
                This determination is based on all relevant circumstances, testing and
                monitoring data and information, and is to be made in accordance with
                the authorization of use procedures, including the appropriate
                concurrences and consultations, found within the regulation. When taken
                together, the Subpart J regulatory requirements address the types of
                waters and the quantities of listed agents that may be authorized for
                use in response to oil discharges. EPA believes the wide variability in
                waters, weather conditions, organisms living in the waters, and types
                of oil that might be discharged requires this approach.
                 The Deepwater Horizon underwater oil well blowout in 2010 raised
                questions about the challenges of making chemical agent use decisions
                in response operations, particularly for certain atypical dispersant
                use situations. To address these challenges, in 2015 the Agency
                proposed amendments to Subpart J of the NCP that included revisions to
                the existing product listing, testing protocols, and authorization of
                use procedures, as well as new provisions for dispersant monitoring.
                The proposed new monitoring provisions under Subpart J were focused on
                dispersant use in response to major oil discharges and on certain
                dispersant use situations in the navigable waters of the United States
                and adjoining shorelines. The proposed new monitoring provisions were
                also aimed at ensuring that the response community is equipped with
                relevant data and information to authorize and use the products in a
                judicious and effective manner. Final action on the proposed revisions
                to the product listing, testing protocols, and authorization of use
                procedures will be taken separately from this action.
                V. This Action
                 This final action addresses environmental monitoring of dispersant
                use in response to major discharges and to certain dispersant use
                situations. Specifically, in this action, the Agency establishes
                monitoring requirements for any subsurface use of dispersant in
                response to an oil discharge, surface use
                [[Page 40236]]
                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. The discussion below explains the specific
                requirements and also summarizes and responds to public comments
                received on the proposal.
                A. Monitoring the Use of Dispersants
                 The goal of establishing a Schedule under the NCP is to protect the
                environment from possible damage related to spill mitigating products
                used in response to oil discharges. The new monitoring requirements for
                certain discharge situations in this action supplements the existing
                regulatory provisions under Subpart J which already include test data
                and information requirements for chemical agents as well as procedures
                for authorizing the use of those agents to respond to oil discharges
                and threats of discharge.
                 The new Sec. 300.913 establishes requirements for the responsible
                party to monitor any 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, and to submit a Dispersant
                Monitoring Quality Assurance Project Plan (DMQAPP) to the OSC. The
                requirements are established for the responsible party as they operate
                in those environments where applicable discharges may occur and should
                be in the best position to monitor the response. The Agency removed
                language included in the proposal that specified these actions were to
                be taken ``As directed by OSC . . .''. The clarification in this action
                is unnecessary as 33 U.S.C. 1321 and Sec. 300.120 of the NCP already
                establish the OSC's oversight role over the responsible party. The
                Agency has also changed language associated with the DMQAPP to remove
                the proposed ``for approval'' qualifier in this final action. The
                change is to better reflect that the requirement to develop the DMQAPP
                is directed at the responsible party, and that the provision is not
                intended to establish a DMQAPP approval timeline for the OSC relative
                to dispersant use. Rather, the DMQAPP submission is intended to provide
                the OSC, and other agencies with NCP responsibilities, with a better
                understanding of the monitoring data to inform dispersant use
                decisions. The OSC may request that response support agencies provide
                feedback on the submitted DMQAPP and has the discretionary authority to
                require the responsible party to address any concerns associated with
                it. The responsible party is required to implement the new monitoring
                requirements when these dispersant use conditions are met, and for the
                duration of dispersant operations. The monitoring and data submissions
                that serve as the basis of this rule were established in the 2013
                National Response Team (NRT) Environmental Monitoring for Atypical
                Dispersant Operations document. The Agency is aware that industry and
                OSROs have been preparing to monitor dispersant use this rule since the
                issuance of the NRT guidance document in 2013. The Agency encourages
                the continuation of planning and preparedness efforts and continues to
                support these efforts with our interagency partners.
                 Subpart J of the NCP is intended to provide tools that support
                planning for and responding to oil discharges. To this end, the
                monitoring requirements for certain discharge situations promulgated in
                this final rule serve as a complement to the existing regulatory
                approach under Subpart J. When dispersants are applied in response to
                an oil discharge, environmental field monitoring data can support
                decision-making in dispersant use operations by gathering site-specific
                information on the overall effectiveness, including the transport and
                environmental effects of the dispersants and the dispersed oil.
                Environmental field monitoring data is at the core of any response, as
                without it the extent of the problem cannot be evaluated nor can a path
                forward for an appropriate response be established.
                 The purpose of monitoring subsurface application is to characterize
                the dispersed oil, follow the plume integrity and transport with the
                underwater current, and identify and assess the potential adverse
                effects from the dispersed oil. Product testing conducted under
                standardized laboratory conditions is useful for comparison between
                different products. However, standardized laboratory conditions do not
                necessarily reflect field conditions. Monitoring of agents in the field
                informs the OSC and support agencies on the overall effectiveness of
                dispersant use, including the environmental effects and transport of
                dispersed oil. These new monitoring requirements, in conjunction with
                the existing testing and information requirements for chemical agents,
                and the procedures for authorizing the use of those agents, serve to
                protect the environment from possible damage related to spill
                mitigating products used.
                1. General
                 Several Non-Governmental Organizations (NGO), private citizens, and
                local, state, and federal government agencies generally supported the
                proposed new monitoring requirements, with some also requesting some
                clarifications. A commenter stated that while they agree with the
                concept of requiring monitoring for dispersant use, the current
                language undermines the contingency planning process and illegally
                assigns responsibilities to the OSC and the responsible party. The
                commenter stated this usurps authority from all other agencies, tribes
                and the public, which they see as a breach of the responsibilities of
                the federal government to protect public trust resources.
                 The Agency agrees with commenters expressing support for this final
                action. The Agency disagrees with the comments that this action
                undermines the contingency planning process and illegally assigns
                responsibilities to the OSC and the responsible party. The EPA
                acknowledges the importance of effective contingency planning to the
                achievement of a timely and effective response. Planning and
                preparedness provisions are currently addressed under Subpart C of the
                NCP or as codified in regulations implementing CWA 311(j)(5)
                authorities as delegated to other NRT member agencies by E.O. 12777.
                The Agency is amending the proposed language in the opening paragraph
                of the monitoring section to clarify the new provisions are for the
                responsible party to implement. EPA disagrees with comments that state
                the structure of the new monitoring requirements usurps other
                governmental authorities or constitutes a breach of responsibilities of
                the federal government to protect public trust resources. The NCP
                designates the OSC as the person who is authorized to direct response
                efforts and to coordinate all other efforts at the scene of a
                discharge, including the new monitoring requirements. The NCP
                designates those Agencies providing the OSC for a response, including
                designating USCG to provide the OSC for oil spills into or threatening
                the coastal zone. See, e.g., 40 CFR 300.120. The NCP requires that the
                OSC ensure that the natural resource trustees are promptly notified in
                the event of any discharge of oil to the maximum extent practicable as
                provided in the Fish and Wildlife and Sensitive Environments Plan annex
                to the Area Contingency Plan (ACP) for the area in which the
                [[Page 40237]]
                discharge occurs. The NCP also directs the OSC and the trustees to
                coordinate assessments, evaluations, investigations, and planning with
                respect to appropriate removal actions, including the OSC consulting
                with the affected trustees on the appropriate removal action to be
                taken. Finally, none of new requirements in this action in any way
                limit current existing NCP authorities, but rather they inform the OSC
                and facilitate compliance with regulatory responsibilities.
                 Several commenters supported the proposed amendments and suggested
                the monitoring requirements be extended to all products listed on the
                Product Schedule. Another commenter expressed similar concerns, stating
                that monitoring should occur anytime any product is used during a
                response activity. The commenter suggested these additional
                requirements for product effectiveness data would then be available for
                future releases, allowing for a refined set of response options.
                Another commenter stated that EPA should include language indicating
                that the new monitoring requirements are a minimum and that additional
                monitoring may be required based on conditions, dispersant type, and
                location. A commenter also recommended that, at a minimum, the
                requirements include monitoring of public health effects following the
                dispersant application.
                 The Agency interprets the specific requirements set forth in this
                final action as the minimum set of monitoring activities expected
                during a response involving the atypical dispersant use conditions
                specified. However, the Agency does not believe it is necessary to
                amend regulatory text for this purpose. The new requirements in no way
                impede the existing OSC authority \1\ to direct the responsible party
                to conduct additional monitoring if deemed necessary due to incident-
                specific circumstances including location, oil type, or conditions of
                use. EPA notes that incident-specific circumstances may extend beyond
                the examples provided. The incident-specific data gathered through
                these new monitoring requirements, in conjunction with the OSC
                authority to direct additional monitoring, offers flexibility in
                accounting for differences in regional environments that may have the
                potential to impact any discharge situation. The USCG provides a
                designated OSC for oil discharges into or threatening the coastal zone
                as per 40 CFR 300.120. The OSC authorizes the use of chemical agents in
                accordance with Subpart J and other applicable provisions of the NCP.
                ---------------------------------------------------------------------------
                 \1\ See 33 U.S.C. 1321(c); See also 40 CFR 300.120, 40 CFR
                300.305.
                ---------------------------------------------------------------------------
                 The Agency reiterates that the new provisions are focused on
                environmental monitoring and are applicable only to the following
                atypical dispersant use situations: any 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 any surface use of dispersant for more than 96 hours
                after initial application in response to an oil discharge. However,
                these new requirements in no way preclude the OSC from directing the
                monitoring of any substance, including chemical agents used, or their
                use within different time frames than those listed above, as part of
                the existing authorities set forth in the NCP. The Agency is clarifying
                the applicability provisions of the monitoring requirements relative to
                the duration of their implementation. Specific to subsurface
                application of dispersants, the Agency is offering language further
                clarifying the monitoring provisions are to be implemented for the
                entire duration of the subsurface dispersant use. For dispersant
                application on the surface in response to oil discharges situations of
                greater than 100,000 U.S. gallons occurring within a 24-hour period,
                the monitoring provisions are to be implemented as soon as possible for
                the entire or remaining duration of surface dispersant use, as
                applicable. Finally, for any dispersant used on the surface for more
                than 96 hours after initial application, the new monitoring provisions
                in this action are to be implemented for the remaining duration of
                surface dispersant use, consistent with the 2013 National Response Team
                (NRT) Environmental Monitoring for Atypical Dispersant Operations
                document. Additional discussion regarding this clarifying language is
                found in Section C of this preamble--Water Column Sampling.
                 While the new provisions established in this action are specific to
                environmental monitoring, the Agency notes there are other impacts
                potentially resulting from an oil discharge and associated response
                operations that are addressed under different provisions of the NCP. Of
                note, the OSC initiates a preliminary assessment as per the NCP. This
                preliminary assessment is conducted using available information and is
                supplemented where necessary and possible by an on-scene inspection. 40
                CFR 300.305(a)-(b). The preliminary assessment undertaken by the OSC in
                accordance with 40 CFR 300.305 includes an evaluation of the threat to
                public health or welfare of the United States or the environment.
                 A commenter suggested that for oil spill events where product
                preauthorization has not been granted, the rule should require that
                authorization of use be contingent on the Area Committee having a
                current Quality Assurance Project Plan (QAPP) approved by the RRT, NRT,
                and federally recognized Tribal representatives for the collection and
                reporting of all environmental data as part of the preauthorization
                plan. The commenter further suggested authorization be contingent on
                the Natural Resource Trustees having completed baseline ecosystem
                studies in the area impacted by the spill. Another commenter
                recommended that the development, approval, and update process for the
                QAPP be moved under the provisions for authorization of chemical agent
                use. They also suggested that withdrawal of concurrence, regarding
                product use following protocols also under authorization of use
                provisions, would mean that use of a product would cease until
                concurrence was reestablished.
                 A commenter proposed that the Natural Resource Trustees should
                select and manage peer-reviewed scientific studies that implement the
                approved QAPP for spills where the preauthorization conditions for
                product use are met. The commenter suggested the Natural Resource
                Trustees seek concurrence from the Department of Labor/OSHA and
                Department of Human Health and Services/CDC representatives to the RRT,
                federally recognized Tribal representatives, and the RRT representative
                from the state(s) with jurisdiction over waters and adjoining
                shorelines within the geographic area impacted for these scientific
                studies. Other commenters generally suggested that the proposed
                requirements ensure peer-review as part of the monitoring process.
                 The Agency recognizes that any monitoring to be conducted should
                follow a QAPP and has included new provisions to that effect. The
                Agency is modifying the provision by specifically requiring a DMQAPP to
                avoid confusion with the existing definition of a QAPP in the NCP.
                Further, given that the monitoring requirements are directed at the
                responsible party, the Agency believes it is most appropriate for the
                responsible party to develop a DMQAPP covering the environmental data
                collection, which includes quality assurance documentation. The DMQAPP
                developed by the responsible party is to be submitted to the OSC to
                [[Page 40238]]
                allow for a better understanding of the monitoring data. The Agency
                encourages the use of the guidance in Section 4.0 Quality Assurance
                Project Plan of the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations document for preparation of the DMQAPP. EPA also
                encourages the RP to develop a DMQAPP, to the maximum extent possible,
                as part of the RP's response planning to facilitate monitoring
                preparedness among other members of the response community. The OSC has
                the expertise of the Scientific Support Coordinator (SSC) and other
                pertinent response agencies available to provide feedback on the
                submitted DMQAPP, as well as the discretionary authority to require the
                responsible party to address any concerns raised. For oil discharges in
                the coastal zone it is National Oceanic and Atmospheric Administration
                (NOAA) that generally provides the SSC. The Agency disagrees that these
                new monitoring provisions cannot be implemented without having a DMQAPP
                specifically included in the applicable ACP. Likewise, implementation
                of the new monitoring requirements has no impact on baseline ecosystem
                studies conducted by the Natural Resource Trustees. The Agency notes
                that the roles and responsibilities of the Natural Resource Trustees
                are delineated under the current NCP, and that commenters'
                recommendations specific to a DMQAPP evaluation by the Natural Resource
                Trustees to select and manage peer-reviewed scientific studies are
                outside the scope of this action. Similarly, issues regarding
                authorization of chemical agent use are outside of the scope of this
                action.
                 A commenter supported the proposed monitoring requirements but
                suggested they include establishing baseline conditions prior to
                product application. Another commenter also suggested the requirements
                include pre-application monitoring of biological resources. A commenter
                suggested the concept of short-term damage assessments be included in
                this section, including rapid characterization of vulnerable aquatic
                species and habitats, and potential impacts to public health.
                Similarly, commenters also recommended longer-term monitoring and
                damage assessment activities as part of these new requirements; a
                commenter stated that monitoring should occur for the duration of the
                response and until the product is no longer detected in the water.
                Another commenter suggested that effects of dispersants on aquatic
                organisms may take longer to manifest themselves than the duration of
                monitoring that occurs during a spill response and therefore suggested
                that monitoring continue for several months following the dispersant
                application to allow for the assessment of both acute and chronic
                effects on fish and other species.
                 EPA agrees with commenters who requested that the new monitoring
                requirements also include site-specific baseline monitoring, prior to
                application of dispersant, and is amending the proposed rule text to
                reflect this change in the final rule. The Agency believes this a
                rational and necessary addition since an understanding of baseline
                conditions is required for understanding the effects of dispersants in
                a specific area. The Agency believes that baseline monitoring will
                provide pre- and post-dispersant application data to better evaluate
                the effects, including physical dispersion, of the dispersants. Further
                details on this change to the proposed requirements is found in the
                Water Column Sampling discussion in this preamble. This final action
                also recognizes the need for ecological characterization. The new
                monitoring provisions include requirements for the responsible party to
                characterize the ecological receptors (e.g., aquatic species, wildlife,
                and/or other biological resources), their habitats, and exposure
                pathways that may be present in the discharge area. Specific comments
                on these new provisions are found in the Ecological Characterization
                discussion in this preamble. The Agency notes that the new monitoring
                provisions are for ecological monitoring of atypical dispersant use
                operations subject to this regulatory action (i.e., any subsurface
                dispersant use, prolonged surface dispersant use, and surface
                dispersant use in response to major discharges). Other potential
                impacts from an oil discharge and from other associated response
                operations are addressed under different provisions of the NCP. The OSC
                initiates a preliminary assessment under the NCP. This preliminary
                assessment is conducted using available information and is supplemented
                where necessary and possible by an on-scene inspection. The preliminary
                assessment includes an evaluation of the threat to public health or
                welfare of the United States or the environment.
                 The Agency recognizes that some effects of dispersant use on the
                aquatic ecosystem may take longer to manifest than the duration of
                dispersant application or the monitoring time frames during a response.
                However, the new field monitoring provisions are designed to support
                and inform operational decisions by gathering site-specific information
                on the overall effectiveness, including the transport and environmental
                effects of the dispersant and the dispersed oil. Monitoring the overall
                effectiveness of dispersant use in the field provides the RRT member
                agencies with concurrence and consultation roles with information for
                operational decision making during atypical dispersant applications.
                 Adverse effects on ecological receptors from exposures to
                dispersant use depend on the length of time and concentration of the
                exposure, which are dependent on the transport of the dispersed oil.
                Given that each oil discharge represents a unique situation, the Agency
                believes comprehensive monitoring is important for those discharge
                situations which are addressed in this final action. This monitoring
                data will enhance the information available for an effective response
                without delaying the use of dispersants. The Agency believes that
                comprehensive monitoring in certain discharge situations is necessary
                to determine the overall effectiveness of dispersants and should extend
                beyond the initial dispersant application to include the transport and
                potential environmental effects of the dispersant and dispersed oil in
                the water column. While all the data collected for dispersant
                operations purposes may be made available to Natural Resource Damage
                Assessment (NRDA) personnel as soon as practicable, the new monitoring
                requirements are intended to inform operational decision-making
                specific to atypical dispersant use; use of collected data in the NRDA
                process is incidental to this rulemaking. The NRDA data gathering
                efforts apply more broadly than just to dispersant use as part of the
                response.
                 A commenter generally supported the concept of monitoring following
                dispersant use and recommended any monitoring data generated during a
                response acknowledge the uncertainty associated with the difficulty in
                estimating the effectiveness of dispersant actions in the field. A
                commenter recommended that EPA develop a set of standards for assessing
                dispersant application monitoring data in the field to supplement and
                validate results from laboratory-based studies.
                 The Agency agrees that because of the nature of the operations, a
                certain degree of uncertainty associated with monitoring data generated
                during a response is to be expected. The Agency believes that the
                requirement for the responsible party to develop and submit a DMQAPP
                will help address some of those uncertainties. The Agency expects that
                the DMQAPP will address sample
                [[Page 40239]]
                collection methodology, handling, chain of custody, and decontamination
                procedures to ensure the highest quality data possible will be
                collected and maintained. The Agency disagrees that it should develop a
                set of standards for assessing dispersant application monitoring data
                in the field to supplement and validate results from laboratory-based
                studies. Product testing conducted under standardized laboratory
                conditions is useful for comparison between different products.
                However, standardized laboratory conditions do not necessarily reflect
                field conditions. The monitoring requirements in this final action are
                intended to supplement and compliment SMART procedures, as applicable,
                and inform the OSC and support agencies on the overall effectiveness of
                dispersant use for decision-making in the response.
                 A commenter expressed concerns that the proposed requirements may
                not account for regional differences, which would be dealt with more
                effectively at the regional level, as opposed to the national level.
                This commenter also requested clarification on the distinction between
                dispersant efficacy and toxicity. The commenter suggested the reference
                to ``overall effectiveness'' is confusing and should be revised to
                clearly address both the effectiveness and toxicity of the dispersant
                and dispersed oil. The commenter also suggested that local field
                efficacy testing be conducted prior to dispersant use to understand
                site-specific conditions and that efficacy testing be conducted as
                outlined in the Special Monitoring of Applied Response Technologies
                (SMART) Tier I, Tier II, and Tier III protocols during the application
                monitoring. The commenter recommended that, if this type of monitoring
                is not possible, dispersant use be considered on a case-by-case basis
                as outlined under the regulatory provisions for authorization of
                chemical agent use.
                 The Agency again notes the OSC has authority to direct additional
                monitoring and data collection beyond that which is specified in the
                new requirements, including for dispersant use situations outside the
                scope of the new provisions. This may include local field efficacy
                testing prior to dispersant use to better understand and account for
                site-specific conditions in operational decision-making. While the
                SMART protocols may be utilized in pre-deployment field testing and as
                part of the overall response, the atypical uses of dispersant during a
                response that are addressed in this action were neither envisioned nor
                addressed in the existing SMART monitoring program. The requirements in
                this final action follow recommendations from the Environmental
                Monitoring for Atypical Dispersant Operations: Including Guidance for
                Subsea Application and Prolonged Surface Application developed by NRT
                member agency representatives in 2013 and focus on monitoring atypical
                use of dispersants during an oil discharge in order to provide data for
                operational response decision-making. Further details on the SMART
                protocols can be found in the Field monitoring to support operational
                decisions discussion in this preamble.
                 A commenter also requested clarification on the statement
                suggesting that subsurface dispersant application close to the release
                source reduces environmental impacts. They requested elaboration on the
                specifics of this statement in the context of the discussions of
                dispersant harm to aquatic organisms found in other places in the
                proposed rule. The commenter suggested elaborating on the language, or
                if there is inherent uncertainty, to allow RRTs to participate in
                research or testing associated with pre-authorization of dispersant use
                requests.
                 The proposed rule preamble at 80 FR 3394 states: ``Equipment is
                being contemplated to inject dispersants subsurface, directly into the
                oil near the source of the discharge. This type of application is
                intended to minimize dispersant dilution in the water before the
                dispersant has had an opportunity to interact with the oil. This
                application approach that is closer to the source is expected to reduce
                potential adverse environmental consequences from the use of excessive
                quantities of dispersants. However, applying dispersant to an oil
                discharge does not result in the physical recovery of oil from the
                environment. Instead, dispersing oil increases the potential exposure
                of aquatic organisms to the dispersant-oil mixture, at least
                transiently, and subsurface application has the potential to more
                immediately and effectively increase these exposures near the
                discharge.'' EPA disagrees with the commenter that clarification is
                needed on the cited statement, as the commenter had only cited a
                portion of the full statement. When taken in its full context, the
                statement is highlighting that this new subsurface dispersant
                application approach is intended to reduce the risk of using excessive
                quantities of dispersants. The full statement recognizes that
                dispersing oil does not remove it from the environment and that in some
                instances subsurface dispersant use has the potential to increase
                exposures near the discharge. The Agency recognizes the inherent
                uncertainties with a subsurface application approach, which is an
                integral part of the basis for the new monitoring requirements in this
                final action. For pre-authorization of dispersant use requests, the
                final action does not prevent the RRT from establishing additional
                criteria to address incident-specific concerns beyond those
                requirements in the final rule, or from establishing incident-specific
                criteria for those situations not covered in the final rule. RRT
                authorities and responsibilities are set forth in the NCP and are
                outside the scope of this action.
                 Some commenters further advocated making all monitoring results and
                information publicly available; some commenters suggested daily
                reporting and public notification protocols and that results of
                dispersant monitoring performed during the Deepwater Horizon oil spill
                response be released to provide an example of the types of information
                that can be obtained from existing methods and technologies.
                 The final action includes requirements for the responsible party to
                provide reporting to the OSC, including daily reporting of the
                monitoring data results. EPA expects that daily reporting would be
                reflective of an operational schedule based upon a 24-hour time period.
                Further details of those requirements are found in the Immediate
                Reporting and Daily Reporting discussions in this preamble. Regarding
                public notification protocols, EPA notes that the OSC directs response
                efforts and coordinates all other efforts at the scene of a discharge,
                including public information and community relations. See 40 CFR
                300.120. The NCP provides instruction to the OSC on ensuring all
                appropriate public and private interests are kept informed and that
                their concerns are considered throughout a response. See 40 CFR
                300.155. The OSC public communications authorities under the NCP are
                outside the scope of this action. The Agency worked with Federal
                interagency partners in developing the 2013 NRT Environmental
                Monitoring for Atypical Dispersant Operations guidance, which includes
                examples of the types of information that can be obtained from relevant
                methods and technologies, and which serves as a basis for this action.
                Additionally, while the Agency did incorporate lessons learned from
                dispersant use operations during the Deepwater Horizon oil spill into
                this final action, the new monitoring requirements are performance
                based and focused on information requirements. The Agency
                [[Page 40240]]
                believes this approach provides the opportunity to consider relevant
                technologies and to capture advances in technologies.
                 A commenter expressed concerns over proposed language that seems to
                suggest that EPA views comprehensive and quantitative monitoring of
                dispersant effectiveness at sea as a feasible proposition. This
                commenter stated that currently, this type of monitoring is not
                technically possible and suggested that the word ``comprehensive'' be
                replaced with the word ``adaptive'' throughout this section. The
                commenter noted that this change would allow decisions related to
                dispersant use to be revisited as circumstances surrounding the release
                change.
                 The Agency disagrees that comprehensive and quantitative monitoring
                of dispersant effectiveness at sea is not currently technically
                possible. The requirements set forth in this action are informed by
                lessons learned during the Deepwater Horizon response and are
                consistent with the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations guidance. Further, the Agency disagrees that the
                narrative describing the monitoring requirements should replace the
                term ``comprehensive'' with the term ``adaptive.'' The commenter stated
                that describing the monitoring requirements as ``adaptive'' would allow
                decisions related to dispersant use to be revisited as circumstances
                surrounding the release change. The Agency disagrees that
                characterizing the specific regulatory provisions in this action as
                comprehensive would in any way preclude the OSC to adapt operational
                decisions based on the monitoring data. The Agency is describing the
                new monitoring requirements as comprehensive because they go beyond the
                initial dispersant application to also include the transport and
                environmental effects of the dispersant and dispersed oil in the water
                column.
                 A commenter requested that EPA provide additional supporting
                references for the proposed requirements. The commenter suggested that
                supporting references could include peer-reviewed articles published
                since 2012 that examine the use of dispersants during the Deepwater
                Horizon response or the 48 studies initiated by government agencies
                cited in a 2012 U.S. Government Accountability Office (GAO) report.
                They also suggested that reference be made to the 2011 Federal On-Scene
                Coordinator (FOSC) Deepwater Horizon Operational Science Advisory Team
                (OSAT) Report, which indicated that there were no identifiable harmful
                impacts to any marine life following dispersant applications. The
                commenter requested that new monitoring requirements for the dispersant
                use situations applicable to this action be reconsidered in the context
                of recent scientific research. A commenter requested EPA review recent
                publications that suggest the effectiveness of dispersant use, citing
                results from monitoring and testing during the Deepwater Horizon oil
                spill response. Further, a commenter stated that the new monitoring
                requirements are unnecessary until EPA can provide published results
                indicating harm from dispersant use to the environment or public
                health. Similarly, a commenter stated that if there is no intention to
                include recent research in the proposed update, the new requirements
                should not be promulgated.
                 The Agency believes it has demonstrated the need for these new
                monitoring requirements to inform operational decision-making specific
                to atypical dispersant use. As already highlighted, the new
                requirements are consistent with the 2013 NRT Environmental Monitoring
                for Atypical Dispersant Operations guidance, which addresses the
                dispersant use situations addressed by this action. Further, the Agency
                disagrees that recent scientific research would necessitate
                reconsidering the minimum set of monitoring requirements for the
                atypical dispersant use situations as specified in this action. EPA
                recognizes uncertainties still surrounding dispersant use, particularly
                for the atypical dispersant use situations contemplated since their use
                during the Deepwater Horizon oil spill. EPA continues to participate in
                scientific efforts with scientists and researchers from industry,
                academia, and public organizations, such as the multi-year State-of-
                the-Science for Dispersant Use in Arctic Waters effort sponsored by
                NOAA though the Coastal Response Research Center, which continue to
                identify unknowns and uncertainties relative to this response
                technology. EPA also continues to actively participate as a standing
                member of the Interagency Coordinating Committee on Oil Pollution
                Research (ICCOPR), a 15-member Interagency Committee established by
                Title VII of the Oil Pollution Act of 1990 (Section 7001). EPA's own
                research efforts and on-going engagement with the broader research
                community support the need for the new monitoring provisions
                established in this final action. Finally, the Agency notes the
                commenter's request to recognize the 2011 Deepwater Horizon OSAT
                Report. The commenter did not specify which 2011 OSAT report. The
                February 10, 2011, OSAT report is a summary for fate and effects of
                remnant oil in the beach environment. The July 8, 2011, report is an
                ecotoxicity addendum entitled ``Summary Report for Sub-Sea and Sub-
                Surface Oil and Dispersant Detection: Ecotoxicity Addendum.'' EPA's
                understanding is that the OSAT reports focused on information to guide
                response actions and do not draw conclusions about long-term
                environmental impacts of the spilled oil. Specifically, the OSAT
                ecotoxicity addendum report states that its purpose was to provide the
                OSC with information on the remaining toxicity of released oil and
                dispersant to representative water column and sediment-dwelling
                organisms at the time the samples were collected and intended to inform
                the OSC regarding transition of nearshore activities from the emergency
                response phase to the long-term recovery and restoration phase. The new
                monitoring requirements promulgated in this action will serve to inform
                dispersant use decisions during a response by providing environmentally
                relevant data and information to the OSC and other Agencies with roles
                and responsibilities under the NCP where atypical dispersants are
                deployed. Under the NCP, the OSC directs the response consistent with
                provisions including 40 CFR 300.120, 40 CFR 300.150, and Subpart D,
                which includes threats to the public health.
                 The Agency acknowledges that scientific research continues
                regarding dispersant use in general and with respect to the Deepwater
                Horizon oil spill. The Agency disagrees with the commenter that the
                monitoring requirements should be removed because EPA did not include
                references that the commenter characterized as the numerous scientific,
                peer-reviewed publications published since May 2012 in the 2015
                preamble that the commenter stated to have examined the dispersant use
                during DWH. The commenter did not provide a list of references or
                examples as illustrations, nor included those that may be relevant to
                the monitoring provisions. The Agency believes that the new monitoring
                requirements will provide information and data to inform future
                response decisions for atypical dispersant use situations reflective of
                the Deepwater Horizon oil spill-type and other scenarios. Furthermore,
                these new monitoring requirements will provide information and data
                that address knowledge gaps identified in
                [[Page 40241]]
                the 2012 GAO report, ``U.S. Government Accountability Office Report,
                Oil Dispersants, Additional Research Needed, Particularly on Subsurface
                and Arctic Applications,'' which commenters also referenced.
                 The Clean Water Act provides that the National Contingency Plan
                ``shall include, but not be limited to, the following: . . . (F)
                Procedures and techniques to be employed in identifying, containing,
                dispersing, and removing oil and hazardous substances. (G) A schedule,
                prepared in cooperation with the States, identifying--(i) dispersants,
                other chemicals, and other spill mitigating devices and substances, if
                any, that may be used in carrying out the [NCP], (ii) the waters in
                which such dispersants, other chemicals, and other spill mitigating
                device and substances may be used, and (iii) the quantities of such
                dispersant, other chemicals, or other spill mitigating device or
                substance which can be used safely in such waters . . . .'' In
                conjunction with the existing testing requirements, listing of agents,
                and authorization of use procedures, the promulgation of these new
                monitoring requirements provide data which can be used to inform the
                decision making of the OSC and of the other Agencies with roles and
                responsibilities under the NCP. The wide variability in waters, weather
                conditions, organisms living in the waters, and types of oil that might
                be discharged requires this combined approach.
                 A commenter expressed concerns that in the event of a spill these
                new monitoring requirements may hamper response activities from
                occurring in a timely manner. They recommended that effectiveness
                monitoring be conducted as a set of tabletop exercises first, to
                determine whether the monitoring protocols are feasible. This commenter
                also requested recognition for other analytical options such as in-situ
                analytical techniques.
                 The Agency disagrees with the premise that monitoring requirements
                could hamper response activities from occurring in a timely manner. The
                Agency notes the time frame for the deployment of subsurface dispersant
                injection equipment by vessels for offshore facilities is not expected
                to be different than the time frame for deploying monitoring equipment.
                Monitoring requirements should not delay or impede response actions
                related to the deployment of mechanical recovery, in-situ burning, or
                dispersant-related equipment. The monitoring and data submissions that
                serve as the basis of this rule were established in the 2013 NRT
                Environmental Monitoring for Atypical Dispersant Operations guidance
                document. The Agency is aware that industry and OSROs have been
                preparing for the requirements of this rule since the 2013 interagency
                signing of the NRT guidance document. This final action provides notice
                for a potential responsible party to identify and prepare for
                deployment of monitoring assets including identifying response
                personnel, equipment, and sampling materials. Potential responsible
                parties also have time to identify and plan for the need of alternative
                resources to account for events such as equipment failure, rather than
                wait until an incident occurs. The Agency encourages the continuation
                of planning and preparedness efforts and continues to support these
                efforts with our interagency partners.
                 A commenter indicated that monitoring of dispersants in the coastal
                zone should be under the authority of the United States Coast Guard
                (USCG). This commenter suggested that the RRT and OSC should have
                decision-making authority as indicated in NRT's Environmental
                Monitoring for Atypical Dispersant Operations and the SMART document.
                Another commenter stated that this section of the proposed rule should
                be consistent with, and pose no conflict to, the NRT guidance found in
                the 2013 Environmental Monitoring for Atypical Dispersant Operations
                document.
                 The Agency recognizes OSC roles, responsibilities and authorities
                as described in the NCP, including USCG OSC roles and responsibilities
                in the coastal zone as described in 40 CFR 300.120 and Sec. 300.140.
                EPA has responsibilities under Subpart J of the NCP that apply to the
                use of chemical agents in the coastal and inland zones, including an
                authorization of use role as provided in 40 CFR 300.910 (states and
                other federal agencies also have responsibilities under this
                provision). The Agency acknowledges that the atypical dispersant use
                situations subject to the new monitoring requirements will likely be
                overseen by a USCG OSC. The President has delegated EPA the authority
                under CWA 311(d) to revise or otherwise amend the NCP and to establish
                requirements for dispersants, other chemicals, and other spill
                mitigating devices and substances, which are found in Subpart J of the
                NCP. The Agency has structured the amendments to Subpart J of the NCP
                to include not only the testing and listing protocols, and the
                authorization of use procedures, but also the monitoring provisions to
                ensure agents are being used appropriately. The new monitoring
                requirements are consistent with existing RRT and OSC authorities and
                responsibilities under the NCP. Finally, the requirements set forth in
                this action are informed by lessons learned during the Deepwater
                Horizon oil spill and are consistent with the 2013 NRT Environmental
                Monitoring for Atypical Dispersant Operations guidance.
                 The Agency acknowledges the recommendation to renumber the
                monitoring section but is not making this change because the numerical
                order of the provisions has no practical effect on the regulatory
                requirements.
                2. Roles and Responsibilities for Monitoring Operations
                 Several commenters expressed concern specific to the requirements
                for the responsible party to monitor the use of dispersants under the
                direction of the OSC. A commenter stated that the responsible party
                should not oversee monitoring for impacts related to the spill for
                which they are responsible. Similarly, other commenters suggested the
                OSC select a qualified third party to be responsible for monitoring and
                water column testing processes during the response instead of the
                responsible party. Further, the commenters stated that the third party
                should be required to disclose any relationship with the responsible
                party to avoid potential conflicts of interest and suggested that the
                OSC oversee transparency in the monitoring and water quality testing
                processes. Commenters suggested that this third-party monitor should be
                acceptable to the OSC, EPA, Department of Interior (DOI) RRT
                representatives (potentially including DOC RRTs), as well as the
                responsible party. A commenter also suggested that because the QAPP
                will include DOI trust resources, it should be submitted and approved
                by DOI RRT representatives and the OSC. Commenters also suggest adding
                a timeline for submission and approval of the QAPP documentation.
                 EPA recognizes commenters' concerns regarding the responsible party
                conducting dispersant monitoring due to inherent conflicts of interest.
                The Agency notes that under the NCP the OSC coordinates, directs and
                reviews the work of the responsible party. See, e.g., 40 CFR 300.120.
                The Agency believes the responsible party must be prepared for and
                provide resources to gather data and information to inform decisions
                regarding dispersant use operations. The approach to this final action
                is consistent with the NCP response framework, taking advantage of the
                knowledge and geographic proximity of the responsible party as
                applicable, and allowing for the effective allocation of limited
                [[Page 40242]]
                governmental resources. Additionally, the new monitoring requirements
                in this final action do not, for example, preclude the OSC from seeking
                a qualified third party to conduct additional monitoring or testing,
                from requiring the responsible party to use a third party to conduct
                the monitoring or testing where the OSC deems it appropriate, or from
                seeking supplemental data and information separately. Similarly, the
                final rule does not preclude the consideration of third-party testing
                or test results.
                 The Agency notes that the NCP already provides for the natural
                resource trustees' roles relative to dispersant use. Further, this
                final rule does not amend any regulatory requirements or authorities,
                including EPA-delegated authorities under Subpart J, or regarding the
                OSC role to direct public and private spill response efforts, the Area
                Committee responsibilities for developing Area Contingency Plans, or
                the responsible party's obligations for preparing Facility or Vessel
                Response Plans, as applicable. The NCP establishes the Regional
                Response Teams and their roles and responsibilities in the National
                Response System, including coordinating preparedness, planning, and
                response at the regional level. Nothing in this final action precludes
                OSC consideration of local interests and knowledge for effective
                allocation of resources, nor interferes with NCP established roles and
                responsibilities for response actions. The DMQAPP developed by the
                responsible party will be submitted to the OSC to provide context and
                allow for better understanding of monitoring data and information. The
                OSC has not only the expertise of the SSC available to assist with the
                data collected following the DMQAPP, it also has available within the
                existing NCP authorities the expertise of the respective state (as
                applicable), DOI RRT representatives and other pertinent agencies. The
                NCP designates the RRT as the appropriate regional mechanism for
                coordination of assistance and advice to the OSC during such response
                actions. As specified in the final regulatory text, the responsible
                party must submit a DMQAPP to the OSC covering the collection of
                environmental data within this section as part of implementing the
                monitoring requirements. The Agency again encourages planning and
                preparedness efforts and continues to support these efforts with our
                interagency partners.
                 A commenter suggested that although the proposed rule requires the
                responsible party to conduct monitoring, these operations would be
                completed under the direction of the OSC. The commenter indicated that
                the NCP provides for a three-tiered approach, including the Federal
                government directing all public and private spill response efforts for
                certain types of spill events; Area Committees developing detailed,
                location-specific Area Contingency Plans; and vessel and certain
                facility owners and operators preparing Facility Response Plans. The
                commenter suggested that this type of tiered approach allows for
                Federal oversight without dismissing local interests and knowledge and
                enables the efficient allocation of limited resources for response
                actions.
                 The Agency agrees that the USCG OSC generally oversees the
                responsible party during coastal zone response operations, which
                includes implementation of the new monitoring requirements. The new
                monitoring requirements fall within the existing NCP framework of
                federal government oversight through the OSC. The NCP serves as the
                federal government's blueprint for responding to oil discharges or
                threats of discharge, ensuring national response capabilities and
                promoting coordination among the hierarchy of responders and
                contingency plans. The approach to this final action is consistent with
                the NCP response framework, taking advantage of the knowledge and
                geographic proximity of the responsible party as applicable, and
                allowing for the effective allocation of limited governmental
                resources. These new provisions of minimal monitoring requirements
                under Subpart J for specific atypical dispersant use situations are
                consistent with the existing NCP authorities and objectives.
                 A commenter suggested that monitoring be required as directed by
                the OSC. The commenter suggested that every response is unique in terms
                of the type of spill and appropriate actions, and therefore, discretion
                should be given to the OSC to determine monitoring requirements. This
                commenter indicated that any monitoring requirements should be
                consistent with the phased approach to monitoring that is discussed in
                the SMART protocols. The commenter also pointed out that USCG Strike
                Teams have monitoring requirements and asked EPA for clarification
                related to the reasoning behind changing the existing monitoring
                process and oversight structure.
                 The Agency agrees discretion needs to be afforded to the OSC to
                account for incident- specific circumstances in a response. This action
                specifies that the new monitoring requirements are to be implemented by
                the responsible party. The Agency notes that under the NCP the OSC has
                an established oversight role over the responsible party; the OSC
                continues to have authority to direct additional monitoring and data
                collection beyond that which is specified in the new requirements. This
                may include local field efficacy testing prior to dispersant use to
                better understand and account for site specific conditions in
                operational decision-making. While the SMART protocols may be utilized
                not only in pre-deployment field testing but also as part of the
                overall response, the atypical uses of dispersant during a response
                that are addressed in this action were neither envisioned nor addressed
                in the existing SMART monitoring program. The requirements in this
                final action follow recommendations from the Environmental Monitoring
                for Atypical Dispersant Operations developed by NRT member agency
                representatives in 2013. The 2013 NRT guidance focuses on monitoring
                atypical use of dispersants during an oil discharge in order to provide
                data that will inform decision-making for dispersant use operations in
                a response. Further discussion on SMART protocols can be found in the
                Field monitoring to support operational decisions discussion in this
                preamble.
                 The Agency recognizes OSC roles, responsibilities, and authorities
                as described in the NCP, including USCG OSC roles and responsibilities
                in the coastal zone as described in 40 CFR 300.120 and 300.140, with
                additional clarification provided in previous Federal Register notices
                (e.g., 59 FR 47389). EPA has responsibilities under Subpart J of the
                NCP that apply to the use of chemical agents in both the coastal and
                inland zones, including an authorization of use role as provided in 40
                CFR 300.910 (states and other federal agencies also have
                responsibilities under this provision). The Agency acknowledges that
                the atypical dispersant use situations subject to the new monitoring
                requirements will likely be overseen by a USCG OSC. The President has
                delegated EPA the authority under CWA 311(d) to revise or otherwise
                amend the NCP and to establish requirements for dispersants and other
                chemicals, and other spill mitigating devices and substances, which are
                found in Subpart J of the NCP. The Agency has structured the amendments
                to Subpart J of the NCP to include the testing and listing protocols,
                the authorization of use procedures, and the monitoring provisions to
                ensure agents are being used appropriately. The
                [[Page 40243]]
                new monitoring requirements are consistent with existing RRT and OSC
                authorities and responsibilities under the NCP. Finally, EPA is unaware
                of any regulatory requirements issued by the USCG Strike Teams
                regarding dispersant use monitoring.
                3. Field Monitoring To Support Operational Decisions
                 Several commenters expressed concerns that the proposal does not
                effectively justify the additional monitoring requirements. These
                commenters believe the additional monitoring requirements could cause
                delays in response actions, preclude dispersant use, and result in
                additional environmental damages. Some commenters expressed concerns
                that the proposed rule may hinder timely response operations, as
                opposed to improve real-time decision-making. They suggested the
                monitoring requirements should be designed by the OSC to fit the needs
                of the given environment.
                 The Agency disagrees with the premise that monitoring requirements
                could hamper response activities from occurring in a timely manner. The
                Agency notes the time frame for the deployment of subsurface dispersant
                injection equipment by vessels for offshore facilities is not expected
                to be different than the time frame for deploying monitoring equipment.
                The Agency reiterates the new monitoring provisions do not change
                current preparedness or planning regulatory requirements; the
                monitoring and data submissions that serve as the basis of this rule
                were established in the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations document. The Agency is also aware that industry
                and OSROs have been preparing for the requirements of this rule since
                the 2013 interagency signing of the referenced NRT guidance document.
                This final action provides notice for a potential responsible party to
                identify and prepare for deployment of monitoring assets including
                identifying response personnel, equipment, and sampling materials.
                Potential responsible parties also have time to identify and plan for
                the need of alternative resources to account for events such as
                equipment failure, rather than wait until an incident occurs. The
                Agency encourages the continuation of planning and preparedness efforts
                and continues to support these efforts with our interagency partners.
                Additionally, monitoring requirements should not delay or impede
                response actions related to the deployment of mechanical recovery, in-
                situ burning, or dispersant-related equipment.
                 Other commenters added that the proposed requirements deviate
                significantly from existing monitoring regimes from the NRT in its
                Environmental Monitoring for Atypical Dispersant Operations, which the
                commenters characterized as advocating for the adaptation of the SMART
                monitoring regimen. Some commenters requested that EPA adjust the
                language to require SMART Tier I efficacy monitoring for the first use
                of dispersants, followed by environmental impact monitoring no later
                than 96 hours after the first application.
                 Some commenters also suggested that the proposed rule goes beyond
                what is required by the NRDA. These commenters also stated that the new
                requirements appear to focus on the environmental effects of dispersant
                use rather than the health and safety of response workers. One
                commenter asked EPA to clarify that the primary objective of
                characterizing the efficacy of response agents is to protect response
                personnel health and safety. The commenters also suggested the OSC
                employ the Net Environmental Benefits Analysis (NEBA) structure to
                assess the overall benefits of dispersant use. Another commenter
                expressed concern about this type of monitoring informing response
                decision-making. Other commenters requested that EPA clarify between
                short-term monitoring result that must be disseminated extremely
                quickly and those that are part of a more comprehensive longer-term
                monitoring process.
                 The new monitoring section is modeled after the 2013 NRT guidance
                document, Environmental Monitoring for Atypical Dispersant Operations,
                developed following the Deepwater Horizon oil spill and tailored to
                monitoring atypical dispersant use situations. These NRT guidelines
                specified that atypical use of dispersants during a response are not
                addressed in the existing SMART monitoring program. In addition to the
                criteria outlined in the NRT guidelines, the Agency included
                applicability criteria for the new monitoring requirements for
                situations where the surface use of dispersants is authorized in
                response to oil discharges of more than 100,000 U.S. gallons occurring
                within a 24-hour period. The Agency chose 100,000 U.S. gallons as a
                threshold criterion based on the NCP classification of major discharges
                to coastal waters. EPA combined this 100,000 U.S. gallons major
                discharge criterion with a 24-hour time frame, considering that a
                larger quantity of dispersant may be required in a short time frame for
                an incident of this scale. The applicability criteria in the final rule
                are consistent with the NRT Environmental Monitoring for Atypical
                Dispersant Operations guidelines.
                 As noted in the proposed rule, the goal of establishing a Schedule
                under the NCP is to protect the environment from potential damage
                related to spill mitigating products used in response to oil
                discharges. This goal is consistent with past preambles related to
                Subpart J. For example, the 1994 NCP final rule (59 FR 47407) noted,
                ``. . . EPA believes that Congress' primary intent in regulating
                products under the NCP Product Schedule is to protect the environment
                from possible deleterious effects caused by the application or use of
                these products. In looking at the long- and short-term effects on the
                environment of all spill mitigating devices and substances, EPA has
                concluded that chemical and bioremediation countermeasures pose the
                greatest threat for causing deleterious effects on the environment.''
                While EPA recognizes that worker health and safety are integral to any
                oil spill response, provisions for these specific concerns are found
                under 40 CFR 300.150 of the NCP and are outside the scope of this
                action.
                 EPA disagrees with commenters that the new provisions should
                require SMART Tier I efficacy monitoring for the first use of
                dispersants, followed by environmental impact monitoring no later than
                96 hours after the first application. While EPA recognizes the
                application of SMART Tier I protocols for evaluating initial dispersant
                efficacy, these protocols are based on aerial visual assessments by
                trained observers or advanced remote sensing instruments flying over
                the oil slick. To help evaluate visual assessments, NOAA developed a
                Dispersant Application Observer Job Aid, which is a field guide for
                trained observers to promote consistency in identification of dispersed
                and undispersed oil, describing oil characteristics, and reporting this
                information to decision-makers. The SMART protocols recognize that
                visual observations do not always provide confirmation that the oil is
                dispersed, and that dispersant operations effectiveness can be
                difficult to determine by visual observation alone.
                 The SMART protocols do not monitor the fate, effects, or impacts of
                dispersed oil. The monitoring of atypical dispersant use necessitates
                specific considerations beyond those addressed by SMART. The 2013 NRT
                Environmental Monitoring for Atypical
                [[Page 40244]]
                Dispersant Operations recognizes such atypical uses of dispersant
                during a response are not addressed in the existing SMART monitoring
                program. Further, the SMART protocols do not apply to any subsurface
                dispersant application. EPA is unaware of any similar NRT-approved
                protocols or NOAA-developed job aids related to subsurface dispersant
                application. The new monitoring requirements in this final action are
                intended to supplement, not to replace, the SMART protocols. The new
                requirements recognize that SMART monitoring protocols are expected to
                have already been deployed in atypical dispersant use situations. While
                some monitoring requirements are included in the SMART Tier III
                protocol (e.g., turbidity, pH, Conductivity, Temperature), other
                requirements important to the understanding of dispersant effectiveness
                (e.g., in situ droplet size distribution) are not.
                 A commenter noted that this action may be an opportunity to broaden
                the proposed requirements to cover all response approaches. Other
                commenters also suggested the RRT should have the ability to require
                field testing of a given approach prior to response action approval. A
                commenter expressed that this type of monitoring does inform response
                decision-making; the commenter requested that EPA clarify between
                short-term monitoring results that must be disseminated extremely
                quickly and those that are part of a more comprehensive longer-term
                monitoring process.
                 While this action specifically addresses certain atypical
                dispersant use operations, the Agency notes the OSC continues to have
                authority to direct additional monitoring and data collection beyond
                that which is set forth in the new monitoring requirements. Under the
                NCP, the OSC has the authority to direct monitoring and data collection
                for any and all approaches utilized during a response. This may include
                field efficacy testing prior to dispersant use to better understand and
                account for site-specific conditions in operational decision-making.
                RRT authorities and responsibilities are set forth in the NCP and are
                outside the scope of this action. However, for pre-authorization of
                dispersant use requests, the Agency notes that this final action does
                not prevent a RRT from establishing additional criteria to address
                incident-specific concerns beyond those requirements in the final rule,
                or from establishing incident-specific criteria for those situations
                not covered in the final rule.
                 Dispersants are not the only option for oil spill response, as
                other mitigation options are available that may lower the potential
                overall environmental damage. Decisions to use dispersants and other
                chemical agents used during a response are to be made in accordance
                with Subpart J of the NCP and all applicable statutes. Any
                environmental tradeoff methodologies for oil spill responses where
                dispersants and other chemical agents are considered must be in
                conformance with the statutory and regulatory authorities that govern
                their use.
                4. Criteria for Triggering Monitoring Requirements
                 EPA received comments specific to the proposed thresholds or
                applicability criteria for triggering the monitoring requirements. A
                commenter indicated that although they agree with EPA's proposal to
                include thresholds above which monitoring requirements would apply,
                they suggested that the spill rate and volume be reduced. The commenter
                recommended that the trigger applicability volume threshold for
                monitoring be set to a discharge of more than 50,000 U.S. gallons
                within 24 hours and surface use of dispersants for more than 48 hours.
                Another recommended a lower release threshold of 21,000 gallons (500
                barrels), and any dispersant use lasting more than 24 hours. In
                contrast, other commenters requested further clarification, and yet
                others a more relaxed set of thresholds for comprehensive monitoring. A
                commenter suggested that the proposed release volume of 100,000 gallons
                be relaxed, stating there are other factors to consider that influence
                spill outcomes beyond the spill volume. Commenters also expressed
                concern regarding the 96-hour duration threshold requirement for
                dispersant use and suggested that especially for earlier life stages
                near the surface, a 96-hour exposure has the potential for adverse
                effects. Citing the information above, a commenter proposed a 24-hour
                threshold for comprehensive monitoring instead of 96 hours. Finally, a
                commenter asked for clarification on the requirements for monitoring of
                dispersants use when the spill volume is less than 100,000 gallons in
                the first 24 hours or for dispersant use occurring over a period of
                less than 96 hours.
                 The Agency received support for establishing monitoring
                requirements, with commenters also offering opposing perspectives on
                the applicability thresholds that would trigger these requirements. The
                Agency agrees with the concept of monitoring the use of all chemical
                agents during a response; however, the monitoring requirements in this
                action apply specifically to certain atypical dispersant use
                situations. The Agency acknowledges some commenters' support for the
                new monitoring requirements applying to any subsurface dispersant use
                in a response. The Agency considered the alternative threshold and
                applicability criteria some commenters offered for atypical surface
                dispersant uses: 50,000 or 21,000 U.S. gallons within a 24-hour period
                and surface use of dispersants for more than 48 or 24 hours. Another
                commenter suggested that any enhanced monitoring beyond that required
                in the SMART protocols should commence within seven days. However, EPA
                disagrees with revising the proposed applicability thresholds for
                surface dispersant use, including those commenters who requested a more
                relaxed set of thresholds for the proposed discharge volume of 100,000
                U.S. gallons.
                 While modeled after the 2013 NRT guidance, the Agency included the
                additional applicability criterion for the new monitoring requirements
                for situations where the surface use of dispersants is authorized in
                response to oil discharges of more than 100,000 U.S. gallons occurring
                within a 24-hour period. The Agency chose 100,000 U.S. gallons as a
                threshold criterion based on the NCP classification of major discharges
                to coastal waters. EPA combined this 100,000 U.S. gallons major
                discharge criterion with a 24hour time frame, considering that a larger
                quantity of dispersant may be required in a short time frame for an
                incident of this scale. The Agency believes the potential variability
                in response actions for an incident of this magnitude, including
                consideration of the time needed for deployment, merits this scenario
                being included as a trigger for applicability of the new monitoring
                requirement.
                 The Agency recognizes that especially for earlier life stages near
                the surface, a longer exposure time frame has the potential for adverse
                effects. The 96-hour time frame in this action is based on 96 hours
                being a common exposure duration used in toxicological studies of
                dispersants. While recognizing that the 24- and 48-hour time frames may
                also be used in toxicological studies, the Agency's intent in proposing
                these specific monitoring requirements was to have them apply to
                atypical spill situations with the potential for larger amounts of
                dispersants being used. The Agency also disagrees with relaxing the
                time frame for the new requirements to begin monitoring within seven
                days, as the upper limit of that time frame would
                [[Page 40245]]
                be outside what the NRT has recognized as an atypical surface
                dispersant use situation. The Agency continues to believe that the
                applicability thresholds for both the quantities and durations for
                surface dispersant use as proposed serve to capture the potential for
                the broader ecosystem impacts resulting from the larger spills that are
                the focus of the new monitoring requirements. Finally, the
                applicability criteria in the final rule are consistent with NRT
                Environmental Monitoring for Atypical Dispersant Operations guidelines.
                 A commenter indicated that the phrase ``upon initiation and for the
                duration of subsurface dispersant use'' can be misconstrued to mean
                that monitoring should be conducted at all times. They suggested that
                monitoring requirements be determined by the OSC given the potential
                variability in response actions. This would allow the OSC to determine
                the best timing for operational monitoring deployment. This commenter
                also stated that the volume and duration criteria for monitoring should
                be replaced with a single criterion that ``any enhanced monitoring
                beyond SMART shall commence within seven days.'' According to the
                commenter, this ensures that the best experts can be mobilized to
                respond to the spill, monitoring vessels can be located and mobilized,
                sampling strategies can be developed, and appropriate safety
                considerations can be reviewed.
                 EPA proposed new monitoring requirements for the responsible party
                to implement when any subsurface and certain surface dispersant use
                conditions are met: ``When these dispersant use conditions are met, and
                for the duration of dispersant operations, the responsible party shall
                . . .''. EPA disagrees that the phrase can be misconstrued when taken
                within the context of the new monitoring requirements because it is
                qualified with the statement: ``When these dispersant use conditions
                are met . . .''. Further, the new minimum set of requirements for the
                specified atypical dispersant use conditions fall within the construct
                of the NCP and do not prevent the OSC to further consider the potential
                variability for any given response action. Additionally, the
                responsible party is required to submit a DMQAPP to the OSC, in which
                some of the incident-specific considerations to implementing monitoring
                operations can be addressed while still meeting the regulatory
                provisions. Thus, the Agency disagrees that the new provisions may not
                offer enough flexibility to allow for an appropriate level of
                monitoring.
                 As stated before, the final rule provides notification for a
                responsible party to identify and prepare for potential deployment of
                monitoring assets prior to the incident. Monitoring assets for a
                responsible party to identify and prepare for include response
                personnel, equipment, sampling materials, and alternative resources to
                account for equipment failure. The Agency also considered the steps
                taken for the deployment of subsurface dispersant injection equipment,
                including their associated time frames. The Agency does not believe
                deploying monitoring equipment should take longer than the deployment
                of subsurface dispersant injection equipment. Replacing the
                applicability criteria with a single criterion that ``any enhanced
                monitoring beyond SMART shall commence within seven days'' would result
                in subsurface dispersant application without any subsurface monitoring
                in place or surface monitoring beyond the intended applicability of
                SMART.
                 Some commenters were against having thresholds or applicability
                criteria for triggering the monitoring requirements and suggested that
                EPA should require comprehensive monitoring in all instances of
                dispersant or any other product use, regardless of the spill volume or
                duration, especially in Arctic waters. Some commenters asserted that
                this type of comprehensive monitoring would better capture acute
                effects on aquatic organisms. Other asserted comprehensive monitoring
                is important as it may represent the only opportunity to test the
                efficacy of these agents in a field or ``real world'' setting.
                 The Agency recognizes that there may be other factors to consider
                that influence spill outcomes beyond the spill volume. Further, surface
                dispersant use situations outside those specifically covered by the
                applicability criteria established in this final rule may also have
                adverse impacts. Thus, there is value in conducting operational
                monitoring for all instances of dispersant or any other chemical agent
                use, regardless of the spill volume, duration, or affected ecosystem.
                The new monitoring requirements in this action do not preclude an OSC
                from directing the responsible party to adopt similar procedures for
                dispersant use situations not covered by the established applicability
                criteria. This action does not impact the OSC authority to direct any
                monitoring necessary to evaluate dispersant efficacy and address
                potential toxicity concerns on aquatic organisms specific to the
                response, including in remote settings such as Arctic waters.
                 A commenter suggested the use of SMART Tier I monitoring protocols
                for all surface dispersant use and monitoring of long-term effects of
                dispersant use specific to a particular incident. Another suggested
                that efficacy monitoring should follow the SMART Tier I, Tier II, and
                Tier III protocols. Some commenters also suggested that monitoring
                information can be used to verify planning assumptions and also to
                support seafood safety decisions and NRDA activities. A commenter
                suggested the proposed rule may not offer enough flexibility to allow
                for an appropriate level of monitoring and requested that EPA revise
                the requirements to allow for OSC and RRT assessments of monitoring
                needs at each site instead of on a discharge volume basis.
                 The Agency disagrees with extending these new specific requirements
                to all instances of dispersant use. However, it agrees in part with
                commenters that dispersant use should be monitored and that monitoring
                of discharges not meeting the thresholds for these atypical monitoring
                requirements should, at a minimum, follow the NRT-approved SMART Tier
                I, Tier II, and Tier III protocols. EPA notes that RRTs typically
                include SMART monitoring as an essential element in their authorization
                of use review which is implemented during a response EPA disagrees with
                commenters who stated that all surface dispersant use should use the
                SMART Tier I protocol. While EPA recognizes the value of the SMART Tier
                I protocol in evaluating initial dispersant efficacy, it is based on
                aerial visual assessments by trained observers or advanced remote
                sensing instruments flying over the oil slick. To help evaluate visual
                assessments, NOAA developed a Dispersant Application Observer Job Aid,
                which is a field guide for trained observers to promote consistency in
                identification of dispersed and undispersed oil, describing oil
                characteristics, and reporting this information to decision-makers. The
                SMART Tier I protocol recognizes visual observations do not always
                provide confirmation that the oil is dispersed, and that dispersant
                operations effectiveness can be difficult to determine by visual
                observation alone. The SMART protocols do not monitor the fate,
                effects, or impacts of dispersed oil.
                 The monitoring of atypical dispersant use necessitates specific
                considerations beyond those addressed by the SMART protocols. The new
                monitoring section in this rule is modeled after the 2013 NRT guidance
                document Environmental Monitoring for Atypical Dispersant
                [[Page 40246]]
                Operations, developed following the Deepwater Horizon oil spill and
                specifically tailored to the type of atypical dispersant use situations
                covered by these new requirements. The 2013 NRT guidelines specify that
                atypical uses of dispersants during a response are not addressed in the
                existing SMART monitoring protocols. Again, the SMART protocols do not
                apply to subsurface dispersant applications. EPA is unaware of any
                similar NRT-approved protocols or NOAA-developed job aids related to
                subsurface dispersant application. The new monitoring requirements in
                this final action are intended to supplement, and not to replace, the
                SMART protocols. The new requirements take into account that the SMART
                monitoring activities are expected to have already been deployed in
                atypical dispersant use situations. While some monitoring requirements
                are included in the SMART Tier III protocol (e.g., turbidity, pH,
                Conductivity, Temperature), other requirements (e.g., in-situ droplet
                size distribution) that are important to the understanding of
                dispersant effectiveness are not.
                 With respect to a commenter who recommended monitoring of long-term
                effects of dispersant use specific to a particular incident, the Agency
                agrees that potential long-term effects of dispersant use should be
                considered during dispersant use decision-making. However, monitoring
                the long-term effects of dispersant use specific to a particular
                incident is part of the NRDA process. Again, these new monitoring
                requirements are intended to inform operational decision-making
                specific to atypical dispersant use and not intended to be part of the
                NRDA. The broader NRDA data gathering efforts may apply to dispersant
                operations or other parts of the response.
                 Some commenters stated that the efficacy of dispersants in Arctic
                waters is poorly understood and until additional scientific data is
                available, monitoring following any dispersant use should be required.
                A commenter suggested that in addition to the monitoring requirements,
                EPA should establish thresholds for the maximum dispersant application
                volumes over time, after which dispersants use should be ceased.
                Another suggested that all dispersant use should be curtailed until
                there is a more robust understanding of the toxic effects of these
                types of chemicals. Another commenter suggested that EPA should require
                site-specific testing and monitoring of products to determine efficacy
                prior to, during, and after response actions.
                 The Agency disagrees with the comments that the new monitoring
                requirements should include thresholds for maximum dispersant
                application volumes over time, after which dispersants use should be
                ceased. Establishing dispersant use volumes depends not only on
                incident-specific factors, but also on many site-specific factors
                (e.g., local hydrodynamic conditions, species sensitivities), making
                this suggested approach overly restrictive. However, the Agency shares
                the commenters' concerns regarding the impact of atypical use of
                dispersants on the affected environments. The decision not to establish
                maximum dispersant application volumes over time, as part of these new
                monitoring requirements, should not be interpreted to mean that the
                Agency supports unlimited dispersant use. When responding under the
                NCP, decisions on dispersants and other chemical agents used are to be
                made in accordance with the authorization of use procedures in 40 CFR
                300.910 of Subpart J. The provisions under Subpart J are driven by the
                statutory requirement to develop a schedule (see CWA 311(d)(2)(G)) that
                identifies the waters and quantities in which dispersants and other
                chemical agents may be safely used in such waters. The OSC is to make
                dispersant use determinations for each response based on all relevant
                circumstances and in accordance with existing authorization of use
                procedures under Subpart J of the NCP. The data and information
                resulting from the new monitoring requirements promulgated in this
                action will serve to inform dispersant use decisions during a response
                by the OSC and other Agencies with roles and responsibilities under the
                NCP where atypical dispersants are deployed. The new monitoring
                provisions, when taken together with the existing testing requirements,
                listing of agents, and authorization of use procedures under Subpart J
                address the types of waters and the quantities of listed agents that
                may be used safely in such waters in a response. The wide variability
                in waters, weather conditions, organisms living in the waters, and
                types of oil that might be discharged requires this approach. Any
                environmental tradeoff methodologies applied to dispersant use
                decisions must be in conformance with the statutory and regulatory
                authorities that govern the dispersant use.
                 The Agency continues to engage with the research community to
                incorporate advances in scientific understandings of dispersant use
                into existing policies. Curtailing all dispersant use until every
                aspect of dispersant efficacy and toxicity is studied would be
                impracticable and overly restrictive. However, EPA agrees an important
                aspect of dispersant use decision-making is documenting information and
                associated uncertainties of dispersant efficacy and toxicity specific
                to the conditions and geographical location where they are intended for
                use. The final monitoring requirements direct the responsible party to
                document the dispersant used and the rationale for dispersant
                choice(s), including the results of any efficacy and toxicity tests.
                Documentation of any additional efficacy and toxicity testing results,
                data or information specific to the area or site conditions, and
                associated uncertainties will assist the OSC and RRT(s) in choosing the
                appropriate dispersant use approach. The listing of a specific
                dispersant (i.e., dispersant product) on the NCP Product Schedule is
                not a rationale to use a dispersant in any given situation. Further,
                the listing of a specific dispersant on the NCP Product Schedule does
                not mean that EPA approves, recommends, licenses, certifies, or
                authorizes its use on an oil discharge. The listing means only that the
                required data have been submitted to EPA as required by Subpart J of
                the National Contingency Plan, 40 CFR 300.915.
                 Finally, EPA agrees with commenters who requested the new
                monitoring requirements also include site-specific baseline monitoring
                prior to application of dispersant and is amending the final rule to
                reflect this change. The Agency believes this a rational and necessary
                addition since an understanding of baseline conditions is required for
                understanding the effects of dispersants in a specific area. The Agency
                believes that baseline monitoring will provide pre- and post-
                dispersant application data to better evaluate the effects, including
                physical dispersion, of the dispersants. Further discussion on this
                change to the proposed requirements is found in Water Column Sampling
                discussion in this preamble.
                5. Surface vs. Subsurface Monitoring
                 A commenter suggested that EPA distinguish between surface and
                subsurface monitoring in the first paragraph of the proposed rule. They
                also suggested that the OSC should authorize dispersant use and
                evaluate the need for monitoring actions. The commenter suggested the
                proposed updates seem to inappropriately replace the three-tiered SMART
                protocols which this commenter indicated should be implemented for
                surface dispersant use using USCG resources. They also
                [[Page 40247]]
                requested that the rule specify that the responsible party monitor
                subsurface dispersant injections. They also asked that the monitoring
                requirement updates not impede response actions or dispersant use and
                should be implemented only after there are available resources during a
                response. Regarding subsurface monitoring, the commenter also proposed
                that EPA use the documentation in the published Industry Recommended
                Subsea Dispersant Monitoring Plan--Version 1.0 as their basis for
                subsurface monitoring protocols. Similarly, a commenter requested a
                restructuring of the proposed rule to provide separate guidance for
                surface and subsurface dispersant use.
                 The Agency believes the monitoring section is clear relative to the
                requirements for the subsurface and surface monitoring and that
                dividing the monitoring section into separate subsections would be
                duplicative and unnecessary. However, the final rule does identify
                specific requirements relative to surface versus subsurface
                applicability. This preamble provides additional context to the intent
                of the regulatory requirements for surface and subsurface monitoring.
                 EPA notes that dispersant authorization of use is governed by a
                separate section of Subpart J (40 CFR 300.910) and is outside the scope
                of the new monitoring requirements for atypical dispersant use in this
                final action. The monitoring section of the final rule provides a
                minimum set of requirements the Agency believes are necessary for
                monitoring the use of dispersants in those situations covered by the
                applicability criteria.
                 The Agency disagrees that the proposed updates inappropriately
                replace the three-tiered SMART protocols, which the commenter indicated
                should be implemented for surface dispersant use using USCG resources.
                According to the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations, atypical uses of dispersant during a response
                were not addressed in the existing SMART monitoring program. The SMART
                protocols do not apply to subsurface dispersant application, and the
                monitoring requirements for surface application are intended to
                supplement, not replace, the SMART protocols.
                 EPA disagrees that surface dispersant monitoring should be
                implemented using USCG resources to meet these regulatory requirements.
                The provisions of dispersant monitoring are appropriately the
                responsibility of the regulated community. USCG resources are intended
                to provide support in excess of commercially available resources. The
                SMART protocols do not limit surface dispersant monitoring to only USCG
                resources. The availability of government resources is not assured and
                does not satisfy the regulatory standard or intent of this rulemaking.
                Finally, while the OSC may choose to implement separate monitoring
                activities, the new monitoring requirements in this final rule are for
                the responsible party to implement and not directed towards any
                government agency or resources.
                 EPA does not believe the monitoring requirement will in any way
                impede response actions or dispersant use and disagrees that monitoring
                requirements should be implemented only after there are available
                resources during a response. The Agency also notes steps taken for the
                deployment of subsurface dispersant injection equipment, including
                their associated time frames. The Agency does not believe deploying
                monitoring equipment should occur on a time frame that is longer than
                the deployment of subsurface dispersant injection equipment. As
                observed elsewhere in this preamble, the new monitoring provisions do
                not change current preparedness or planning regulatory requirements;
                the monitoring and data submissions that serve as the basis of this
                rule were established in the 2013 NRT Environmental Monitoring for
                Atypical Dispersant Operations document. The Agency believes that both
                industry and oil spill response organizations (OSROs) are aware of the
                NRT guidance document referenced immediately above and have since been
                preparing for monitoring requirements described in this rule. This
                final action provides notice to potential responsible parties of the
                expectation to identify and prepare for deployment of monitoring
                assets, to obtain data and information required during those discharge
                situations subject to this action, including response personnel,
                equipment, and sampling materials. This final action also allows
                potential responsible parties time to identify and have strategies in
                place to provide alternative resources for eventualities such as
                equipment failure, rather than wait until an incident occurs. The
                Agency encourages planning and preparedness efforts and supports these
                efforts with our interagency partners.
                B. Information on Dispersant Application
                 In the new monitoring regulations, the responsible party is
                required to document: (1) The characteristics of the source oil; (2)
                the best estimate of the oil discharge volume or flow rate,
                periodically reevaluated as conditions dictate, including a description
                of the method, associated uncertainties, and materials; (3) the
                dispersant used, rationale for dispersant choice(s) including the
                results of any efficacy and toxicity tests specific to area or site
                conditions, recommended dispersant-to-oil ratio (DOR); and (4) the
                application method(s) and procedures, including a description of the
                equipment to be used, hourly application rates, capacities, and total
                amount of dispersant. For subsurface discharges, the responsible party
                must also document the best estimate of the discharge flow rate of any
                associated volatile petroleum hydrocarbons, periodically reevaluated as
                conditions dictate, including a description of the method, associated
                uncertainties, and materials. Methods and materials are commonly used
                terminology in the technical and scientific community, explaining the
                procedures and equipment used to obtain the results. The description
                should allow the reader to understand how the data was obtained and to
                reconstruct the methodology to get similar results.
                 As addressed in the preamble, the new monitoring requirements in
                this final action do not, for example, preclude the OSC from seeking a
                qualified third party to conduct additional monitoring or testing, from
                requiring the responsible party to use a third party to conduct the
                monitoring or testing where the OSC deems it appropriate, or from
                seeking supplemental information separately. Similarly, the final rule
                does not preclude the consideration of third-party testing or test
                results.
                 A commenter expressed concern regarding the reliance on potentially
                responsible parties for spill characterization including estimates of
                blowout flow rates and spill volumes as the basis for dispersant
                application volumes. A commenter suggested that the responsible party
                should be required to disclose all information used in determining
                estimates of flow rates and spill volumes. Another commenter
                recommended that any estimates of spill volumes or blowout rates should
                be independently derived and not under the purview of the potential
                responsible party. This commenter also indicated concern that the rule
                seems to only contain reference to blowout-type releases and argued
                that all potential types and sources of spills should be included in
                the updates to the rule. The commenter also stated that other
                parameters (e.g., oil viscosity, emulsification, dispersant
                formulation, dose rate, mixing energy, water salinity,
                [[Page 40248]]
                and potential for dilution) should be included in the dispersant
                application decision-making process.
                 The Agency understands the concerns regarding the reliance on
                responsible parties for spill characterization, including estimates of
                blowout flow rates and spill volumes as the basis for dispersant
                application volumes. EPA is specifying ``volume'' since the monitoring
                requirements also apply to certain near instantaneous discharges where
                ``flow rate'' is not as applicable (e.g., catastrophic tank vessel
                casualty). However, the new monitoring requirements do not preclude the
                OSC from seeking non-responsible party evaluations, including
                independent government agencies or academia, for spill characterization
                including estimates of discharge flow rates and volumes.
                 The new provisions require the responsible party to document the
                characteristics of the source oil and provide the best estimate of the
                oil discharge flow rate, periodically reevaluated as conditions
                dictate, including a description of the method, associated
                uncertainties, and materials. EPA agrees that the responsible party
                should disclose to the OSC all relevant information used in determining
                estimates of flow rates and spill volumes. This will provide the OSC
                with the necessary information for operational decision-making and
                coordination of the dispersant application monitoring.
                 The Agency agrees that other parameters (e.g., oil viscosity) may
                inform the dispersant decision-making process, including dispersant
                application. For example, oil viscosity is an important parameter in
                characterizing the source oil and in conducting trajectory modeling as
                described in the Oil Distribution Analyses discussion in this preamble.
                The Agency believes these parameters are already inherently captured in
                the monitoring section, including the Dispersant Application and Oil
                Distribution Analyses discussions in this preamble, and therefore it is
                unnecessary to specifically list additional parameters.
                 A commenter stated that the responsible party should not be
                required to provide documentation at the onset of a response if the
                documentation was previously provided in the preparedness or planning
                stages. The commenter suggested removing this section from the proposed
                rule. They stated that if a dispersant or other agent is on the
                Schedule, then by definition it is a viable response option. This
                commenter also stated that if the section is not removed, it should be
                amended to say hourly application rates are to be provided for
                subsurface dispersant applications only. They indicated that an hourly
                application rate would not apply to aerial or vessel types of
                application which are measured on the basis or spray assets,
                application speed, and spray system swath widths. This commenter also
                recommended that the section discussing the DOR be edited to indicate
                that the ratio may need to be changed from the initial recommended
                ratio in response to site-specific environmental conditions or the
                weathering condition of the oil.
                 EPA disagrees that the responsible party should not be required to
                provide documentation at the onset of a response if the documentation
                was previously provided in the preparedness or planning stages and also
                disagrees with the suggestion that the section addressing such be
                removed from the proposed rule. The Agency also disagrees that listing
                of a dispersant or other agent on the Schedule defines it as a viable
                response option for any given response.
                 Requiring the responsible party to provide documentation ensures
                that information is directly provided to the OSC and is relevant to the
                incident-specific discharge situation and also avoids any potential
                delays in information gathering. The Agency calls attention to existing
                regulatory requirements clearly establishing that being listed on the
                NCP Product Schedule is not itself a rationale or authorization to use
                that dispersant in any given situation, but rather that the product is
                available for consideration as a response option, as appropriate. 40
                CFR 300.920. The listing of a specific dispersant on the NCP Product
                Schedule does not mean that EPA approves, recommends, licenses,
                certifies, or authorizes the use of that dispersant on an oil
                discharge. The listing means only that data have been submitted to EPA
                as required by Subpart J of the National Contingency Plan, 40 CFR
                300.915.
                 The Agency disagrees that the final rule should require hourly
                application rates be provided only for subsurface dispersant
                applications. Even if aerial or vessel types of application are
                measured based on spray assets, application speed, and spray system
                swath widths, the responsible party can calculate the volume of
                dispersant applied during the time in which it is applied. Certain
                American Society for Testing and Materials (ASTM) Standards (e.g., ASTM
                F1737/F1737M-19 Standard Guide for Use of Oil Spill Dispersant
                Application Equipment During Spill Response: Boom and Nozzle Systems;
                ASTM F1413/F1413M-18 Standard Guide for Oil Spill Dispersant
                Application Equipment: Boom and Nozzle Systems) may include procedures
                to assist in determining dispersant application rates. Furthermore, EPA
                clarified in the regulatory text that the daily reporting requirements
                for the actual amount of dispersant used is intended for each
                dispersant application platform.
                 EPA does not believe that the DOR should be qualified as
                ``initial'' to account for site-specific environmental conditions or
                the weathering condition of the oil. To the extent that the responsible
                party believes the DOR should be changed from the initial
                recommendation, they may request a change and should provide supporting
                documentation justifying the change for consideration by the OSC and
                RRT, as appropriate.
                 A commenter also suggested that EPA should remove the requirement
                for measuring volatile petroleum hydrocarbons. They indicated these
                types of measurements are very difficult to obtain and fluctuate due to
                shifts in wind speed and direction or changes in sun exposure. They
                also argued that EPA should use already existing best practices for
                dispersant monitoring such as the American Petroleum Institute (API)
                guidelines on subsurface dispersant monitoring, API TR 1152. The
                commenter proposed specific language for this change.
                 The Agency disagrees with the suggestion to remove the requirement
                for measuring volatile petroleum hydrocarbons. EPA recognizes the
                concern that these types of measurements may be difficult to obtain and
                may fluctuate due to shifts in wind speed and direction or changes in
                sun exposure for air sampling. However, these factors should not
                adversely affect measurements of these petroleum constituents in the
                water column as the result of a discharge where the subsurface
                application of dispersant may occur.
                 The Agency disagrees with replacing ``. . . collection of all
                environmental data.'' with ``. . . collection of operational monitoring
                data.'' However for clarity, the Agency has replaced ``. . . collection
                of all environmental data.'' with ``. . . collection of environmental
                data within this section.'' The monitoring requirements focus on
                collecting environmental data to support dispersant use decision-making
                in response operations, and not on overall operational monitoring to
                evaluate how well other response options (e.g., in-situ burning) may
                [[Page 40249]]
                mitigate the negative effects of the oil discharge on sensitive
                environmental resources. The Agency recognizes an overall response
                strategy may incorporate operation monitoring to evaluate reducing the
                overall impact of an oil discharge and may include response options
                that are outside the scope of the dispersant monitoring section.
                However, the monitoring section in the final rule focuses on the
                environmental monitoring related to dispersant use. In addition,
                dispersants are not the only response option; there are other response
                options (e.g., mechanical recovery) available that may lower overall
                environmental damage. Decisions on use of dispersants and other agents
                during a response are to be made in accordance with the NCP and the
                governing statute(s). Environmental tradeoff methodologies where
                dispersants are considered must be in conformance with the statutory
                and regulatory authorities that govern dispersant use when considering
                the extent to which they can be used.
                 As noted in the proposed rule, the goal of establishing a Schedule
                under the NCP is to protect the environment from possible damage
                related to spill mitigating products used in response to oil
                discharges. This goal is consistent with past preambles related to
                Subpart J. For example, the 1994 NCP final rule (59 FR 47407) noted,
                ``. . . EPA believes that Congress' primary intent in regulating
                products under the NCP Product Schedule is to protect the environment
                from possible deleterious effects caused by the application or use of
                these products. In looking at the long- and short-term effects on the
                environment of all spill mitigating devices and substances, EPA has
                concluded that chemical and bioremediation countermeasures pose the
                greatest threat for causing deleterious effects on the environment.''
                 A commenter indicated that they do not support the proposed
                provisions and expressed concerns regarding the role of the responsible
                party in dispersant operations and product selection. The commenter
                suggested that all dispersant-related activities and product selections
                be primarily advised by the NOAA SSC through the OSC and RRT with
                operational support from the responsible party. Similarly, a commenter
                requested that EPA clarify that the OSC, and not the responsible party,
                has final authority regarding the dispersant application practices. The
                commenter also suggested that new technologies such as open-cell
                elastomeric foams be used in conjunction with dispersants to mitigate
                environmental damage.
                 EPA recognizes the concern regarding the role of the responsible
                party in dispersant operations and product selection. However, the NCP
                establishes the OSC's authority to direct response efforts, including
                overseeing dispersant use and monitoring in accordance with Subpart J
                of the NCP. See, e.g., 40 CFR 300.120. Also, SSCs may provide
                scientific support for operational decisions and coordinate on-scene
                scientific activity during a response, as described in the NCP under 40
                CFR 300.145(c). The use of other response mitigation technologies is
                outside the scope of this final action.
                C. Water Column Sampling
                1. Background and Baseline Sampling
                 The final action requires the responsible party to collect a
                representative set of ambient background water column samples in areas
                not affected by the discharge of oil, at the closest safe distance from
                the discharge as determined by the OSC, and in the directions of likely
                oil transport considering surface and subsurface currents. The
                responsible party is also required to collect a representative set of
                baseline water column samples at such depths and locations affected by
                the discharge of oil absent dispersant application, considering surface
                and subsurface currents, oil properties, and discharge conditions. This
                collection of background and baseline water column samples is to follow
                standard operating and quality assurance procedures. These
                representative sets must be analyzed for the following variables: (1)
                In-situ oil droplet size distribution, including mass or volume mean
                diameter for droplet sizes ranging from 2.5 to 2,000 [mu]m, with the
                majority of data collected between the 2.5 and 100 [mu]m size; (2) in-
                situ fluorometry and fluorescence signatures targeted to the type of
                oil discharged and referenced against the source oil; (3) dissolved
                oxygen (DO) (subsurface only); (4) total petroleum hydrocarbons,
                individual resolvable constituents including volatile organic compounds
                (VOC), aliphatic hydrocarbons, monocyclic, polycyclic, and other
                aromatic hydrocarbons including alkylated homologs, and hopane and
                sterane biomarker compounds; (5) methane, if present (subsurface only);
                (6) heavy metals, including nickel and vanadium; (7) turbidity; (8)
                water temperature; (9) pH; and (10) conductivity.
                 A commenter expressed support for the proposed background sampling
                requirements. Another commenter expressed support for the proposed
                updates and suggested that the sampling also include background areas
                to better delineate the plume. That commenter stated that the sample
                collection and analysis should be paired with aerial and strobe imagery
                to more effectively assess the plume area. Another commenter also
                suggested the use of the ``Dispersed Oil Monitoring Plan'' developed by
                California Office of Spill Prevention and Response (OSPR), which
                provides an approach for water column sampling. Another commenter
                supported the proposed monitoring requirements but suggested they
                include establishing baseline conditions prior to product application.
                Another commenter suggested that EPA add an exception clause to the
                proposed rule which would require responsible parties to document why
                some or all sample collection requirements were not feasible during a
                given incident response.
                 The Agency agrees with the commenter's suggestion to include
                background water sampling and has included such requirements in the
                final rule. The Agency believes this a rational and necessary addition
                since an understanding of background conditions is required for
                understanding the incremental effects of dispersants. Ambient
                background sampling characterizes relevant ambient water conditions
                unaffected by the discharged oil, serves to check instrument
                performance, and informs dispersed oil plume behavior and delineating
                plume boundaries. The Agency recognizes imagery technology may assist
                in more effectively assessing the plume area when paired with water
                sampling. The final rule requires that the responsible party consider
                available technologies to characterize dispersant effectiveness and oil
                distribution, which may include imagery technology. The Agency believes
                the specific approach suggested for water column sampling as outlined
                in the ``Dispersed Oil Monitoring Plan'' developed by OSPR is
                consistent with the approach established in these monitoring
                provisions.
                 EPA agrees with commenters who requested the new monitoring
                requirements also include site-specific baseline monitoring of the oil
                discharge in the absence of dispersant application and is including
                such requirement in the final rule. The Agency believes that baseline
                monitoring will provide data absent dispersant application to evaluate
                physical dispersion relative to the effects of dispersant use. The
                baseline requirement is intended to consider the currents and oil
                characteristics, as well as other relevant discharge conditions such as
                the
                [[Page 40250]]
                discharge configuration or multiple discharge locations. The Agency
                also included similar clarifying language for the water column sampling
                in the dispersed oil plume provision. Conducting baseline monitoring
                absent dispersant application reduces potential uncertainties
                associated with dispersant effectiveness in the field and supports
                dispersant use decision-making in response operations. For subsurface
                dispersant application, this means initiating monitoring immediately
                prior to dispersant application to avoid disrupting dispersant
                application once it is initiated. The Agency does not believe that
                collection of baseline monitoring data immediately prior to subsurface
                dispersant application will delay response actions. Equipment for
                subsurface dispersant injection typically takes days to be deployed by
                vessels for offshore facilities and become operationally ready. Thus,
                there is an opportunity to also deploy monitoring equipment, prior to
                or concurrent with that of subsurface dispersant injection equipment,
                without delaying subsurface dispersant application. Of note, EPA is not
                requiring 24-hour analyses be conducted and results be provided before
                dispersant application may begin; only that samples be collected. The
                Agency notes again that the new monitoring provisions do not change
                current preparedness or planning regulatory requirements; the
                monitoring and data submissions that serve as the basis of this rule
                were established in the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations document. Further, the Agency believes that
                industry and OSROs have been preparing for the requirements of this
                rule since the 2013 issuance of the NRT guidance document, and notes
                API issued its own guidelines in 2013 on subsurface dispersant
                monitoring (API TR 1152). This final action provides notice for a
                potential responsible party to identify and prepare for deployment of
                monitoring assets including identifying response personnel, equipment,
                and sampling materials. Potential responsible parties also have time to
                identify and plan for the need of alternative resources to account for
                events such as equipment failure, rather than wait until an incident
                occurs. The Agency, along with our interagency partners, continues to
                support and encourage these planning and preparedness efforts.
                 The Agency recognizes that for certain atypical oil discharge
                situations where surface dispersants have been authorized, dispersant
                application may already be underway (e.g., surface dispersant use prior
                to the 96-hour after initial application threshold) or capable of being
                applied by aircraft prior to dispersant monitoring vessels being
                deployed (e.g., for surface dispersant application for oil discharges
                greater than 100,000 U.S. gallons within a 24-hour period). The final
                rule is not intended to impede surface dispersant application until
                vessels are deployed to begin baseline monitoring prior to the first
                dispersant application, nor to stop such operations once they have been
                authorized. However, EPA also understands that deployment of monitoring
                assets should begin before the 96-hour after initial application
                threshold is reached so as not to delay monitoring operations.
                Likewise, the initial application of authorized surface dispersant use
                by aircraft should not be delayed until surface monitoring assets are
                deployed. The Agency believes surface dispersant monitoring should be
                operational as soon as possible to allow for baseline monitoring
                because of its ability to inform the response efforts and is to be
                operational in accordance with the new monitoring requirements where
                the discharge meets the 96-hour after initial application threshold. To
                address concerns raised by commenters and avoid any misinterpretation
                that initial surface dispersant use by aircraft would be delayed, the
                Agency is clarifying the regulatory text, and specifically that for the
                monitoring requirements for any surface dispersant use in response to
                oil discharges of more than 100,000 U.S. gallons occurring within a 24-
                hour period. The Agency is specifying that when any dispersant is used
                on the surface in response to oil discharges of greater than 100,000
                U.S. gallons occurring within a 24-hour period, the responsible party
                shall implement paragraphs (a) through (g) of this section as soon as
                possible for the entire or remaining duration of surface dispersant
                use, as applicable. Finally, the Agency recognizes the differences in
                subsurface versus surface dispersant application relative to discharge
                location. Dispersant application in the subsurface generally occurs
                close to the oil discharge location, while surface dispersant
                application to oil patches may at times occur further away from the oil
                discharge location. Multiple oil patches provide multiple opportunities
                to monitor surface dispersant application activities, including
                baseline monitoring. EPA is not suggesting that every oil patch in
                which dispersant is applied must be monitored, but that the responsible
                party implement a sampling strategy where representative oil patches
                are monitored for baseline data and for the duration of dispersant
                operations.
                 EPA disagrees with the commenter who suggested the addition of an
                exception clause, which would require responsible parties to document
                why some or all sample collection requirements were not feasible during
                a given incident response. The commenter did not identify why some or
                all sample collection requirements would not be feasible. The Agency
                believes that such an exception would be overly broad. The responsible
                party is required to follow established standard operating and quality
                assurance procedures when collecting water column samples. Some
                commenters expressed general agreement with the need for monitoring but
                said that the proposed requirements add unnecessary analytical
                parameters and that such requirements may actually delay response
                actions. A commenter also stated that monitoring should be incident
                specific and be under the responsibility of the OSC and responsible
                party.
                 The Agency disagrees that the proposed requirements add unnecessary
                analytical parameters and that such requirements may actually delay
                response actions. Each oil discharge represents a unique situation with
                distinct conditions which may require various response methods. When
                dispersants are applied to an oil discharge, field monitoring can be
                used to inform operational decisions by gathering site-specific
                information on the overall effectiveness, including the transport and
                environmental effects of the dispersant and the dispersed oil. The
                Agency disagrees that the monitoring requirements for dispersant use
                are limited in scope to evaluating the initial effectiveness of the
                dispersant application. The Agency is requiring that sample collection
                follow established standard operating and quality assurance procedures
                that are reliable and defensible. Elements of monitoring plans are
                generally described in various guidance documents on standard operating
                and quality assurance procedures for environmental sampling.
                 The Agency disagrees with the premise that monitoring requirements
                could hamper response activities from occurring in a timely manner.
                Specifically, the monitoring requirements are not designed to delay or
                impede response actions related to the deployment of mechanical
                recovery, in-situ burning, or dispersant-related equipment. The Agency
                also notes the time frame for deployment of subsurface dispersant
                injection equipment by
                [[Page 40251]]
                vessels for offshore facilities is not expected to be different than
                the deployment of subsurface dispersant injection equipment. The final
                rule provides notification for a responsible party to identify and
                prepare for potential deployment of monitoring assets prior to an
                incident. These assets may include response personnel, equipment, and
                sampling materials, as well as alternative resources and procedures to
                account for events such as equipment failure. Comments regarding the
                OSC's roles and responsibilities are addressed in Roles and
                Responsibilities for Monitoring Operations discussion in this preamble.
                 A commenter stated that elements of 3-D and 4-D modelling should be
                included to broaden the overall understanding of subsurface conditions.
                The Agency acknowledges the modeling suggestion and addresses
                trajectory modeling in the Oil Distribution Analyses discussion in this
                preamble. The same commenter recommended updates to the proposed rule
                language droplet size distribution analysis; however, the Agency
                believes that the commenter intended for the droplet size to be in
                micrometers ([micro]m) instead of picometers (pm) in its recommended
                rule language because for the purpose of measuring dispersed oil,
                droplet size is typically reported in micrometer units.
                 Some commenters indicated that water sampling requirements are more
                appropriate for the NRDA process. The Agency disagrees that the water
                sampling requirements in this final action are more appropriate for the
                NRDA process and believes that comprehensive monitoring for discharge
                situations subject to this action is necessary to determine the overall
                effectiveness of dispersants and should extend beyond the initial
                dispersant application to include the transport and environmental
                effects of the dispersant and dispersed oil in the water column.
                Furthermore, the Agency notes that the SMART Tier III protocol also
                includes water sampling.
                 Another commenter supported the proposed monitoring requirement and
                suggested that EPA require sampling and analysis of VOCs, semi-volatile
                compounds, and the full suite of metals and metalloids. This commenter
                also recommended the use of specific sampling devices. This final
                action requires water column samples in the dispersed oil plume to be
                analyzed for total petroleum hydrocarbons, which includes VOCs and
                semi-volatile compounds. Additionally, the commenter is not clear about
                which metals and metalloids to analyze for and which analytical methods
                to use. The Agency is requiring water samples be analyzed for heavy
                metals, including nickel and vanadium, which are typically found in
                crude petroleum oil. EPA does not specify sample collection methods or
                devices in the water column sampling requirements. The Agency is
                requiring that sample collection follow established standard operating
                and quality assurance procedures that are reliable and defensible;
                standard operating procedures should describe the appropriateness of
                the sampling method, including the equipment needed for sample
                collection.
                 A commenter indicated support specifically for daily water column
                sampling in the dispersed plume. This commenter also suggested that EPA
                develop protocols for surface and subsurface current tracking. EPA
                acknowledges a commenter's support specifically for daily water column
                sampling in the dispersed plume. EPA does not believe it is appropriate
                to develop protocols for surface and subsurface current tracking
                because the Agency believes these issues are best addressed in a
                DMQAPP. The final rule requires that the responsible party consider
                available technologies to characterize dispersant effectiveness and oil
                distribution.
                 A commenter expressed support for the proposed monitoring
                requirements but suggested that EPA provide minimum required monitoring
                guidance. Such guidance might include timing, sample frequency, number
                of samples, spatial locations, and sampling depths. This commenter also
                had questions regarding thresholds for each of the proposed monitoring
                parameters that would require a cessation of adjustment in response
                actions. For example, they questioned whether there is a threshold
                lower value for pH or DO in the water column, at which point responders
                would shift response actions until the parameter values were within the
                acceptable range. The commenter suggested that these thresholds should
                be established for each sampled parameter. Due to the potential for
                dispersants to enhance bioavailability to aquatic organisms, the
                commenter also requested that bioaccumulation of Total Petroleum
                Hydrocarbons (TPH) and heavy metals in benthic biota be added to the
                monitoring requirements along with characterization of these components
                in the sediment. They also indicated that Ultraviolet (UV) radiation
                monitoring could enhance plume characterization as these data are
                inexpensive to collect and are useful for understanding the oil
                weathering state.
                 The Agency acknowledges the commenter's suggestions regarding
                monitoring guidance for timing, sample frequency, number of samples,
                spatial locations, and sampling depths. The Agency believes that the
                final rule provides flexibility to develop monitoring strategies that
                can be tailored to an incident-specific dispersant use situation.
                Because these situations may vary, the Agency did not establish
                specific parameters for sample frequency, number of samples, spatial
                locations, and sampling depths other than what has been provided in the
                final rule. However, the monitoring approach should include periodic
                sampling of previously sampled locations including near the discharge
                source to evaluate changes in parameters over time at those locations.
                 Additionally, EPA did not propose to establish monitoring
                thresholds in the monitoring section and the establishment of
                thresholds is out of scope for these final monitoring provisions. EPA
                recognizes the commenter's concern regarding monitoring in benthic
                biota, sediment characterization, and UV radiation monitoring. The
                final action does not prevent the OSC or appropriate RRT agencies from
                requiring additional monitoring parameters, which may include benthic
                biota monitoring, sediment characterization, or UV radiation
                monitoring. The final rule requires that the responsible party consider
                available technologies to characterize the dispersant effectiveness and
                oil distribution to determine changes in the condition of the oil due
                to weathering.
                 A commenter suggested that incorporating API TR1152 (Industry
                Recommended Subsea Dispersant Monitoring Plan, Version 1.0, API
                Technical Report 1152, September 2013) by reference would meet the
                requirements of the subsection. The Agency disagrees that the
                monitoring requirements need to incorporate by reference API TR1152 or
                that adherence to it meets the requirements of the subsection. For
                example, API TR1152 presents a phased approach which allows subsurface
                dispersant injection to commence after implementing limited visual
                confirmation and air monitoring. The Agency disagrees that such an
                approach is appropriate for the atypical situations expected to trigger
                applicability of these requirements, particularly for subsurface
                dispersant application. While SMART protocols include visual
                observation for surface dispersant use, air monitoring is used for in-
                situ burning situations. In addition, the SMART protocols are not
                applicable to subsurface dispersant application. The expectation is
                that for
                [[Page 40252]]
                those atypical dispersant use situations, the expanded monitoring
                provisions put forth in this action are necessary to effectively inform
                dispersant use. As previously discussed in this preamble, the
                requirements set forth in this action are informed by lessons learned
                during the Deepwater Horizon oil spill and are consistent with the 2013
                NRT Environmental Monitoring for Atypical Dispersant Operations
                guidance document.
                2. Dispersed Oil Plume Daily Sampling
                 The new provisions require the responsible party to collect daily
                water column samples in the dispersed oil plume, following standard
                operating and quality assurance procedures, at such depths and
                locations where dispersed oil is likely to be present. This daily
                sampling must include the following variables: (1) In-situ oil droplet
                size distribution, including mass or volume mean diameter for droplet
                sizes ranging from 2.5 to 2,000 [mu]m, with the majority of data
                collected between the 2.5 and 100 [mu]m size; (2) in-situ fluorometry
                and fluorescence signatures targeted to the type of oil discharged and
                referenced against the source oil; (3) dissolved oxygen (DO)
                (subsurface only); (4) total petroleum hydrocarbons, individual
                resolvable constituents including volatile organic compounds, aliphatic
                hydrocarbons, monocyclic, polycyclic, and other aromatic hydrocarbons
                including alkylated homologs, and hopane and sterane biomarker
                compounds; (5) methane, if present (subsurface only); (6) heavy metals,
                including nickel and vanadium; (7) turbidity; (8) water temperature;
                (9) pH; and (10) conductivity. Several commenters indicated support for
                the water column sampling section of this final rule and agreed that
                these provisions will add value during a response.
                3. Water Column Samples Analyses
                 The responsible party must collect ambient background, baseline,
                and dispersed oil plume water column samples following standard
                operating and quality assurance procedures. The water column samples
                are to be analyzed, as applicable, for: Droplet size distribution;
                fluorometry and fluorescence; dissolved oxygen; total petroleum
                hydrocarbons; methane; heavy metals; turbidity; water temperature; pH;
                and conductivity. The Agency is not including the proposed requirement
                to analyze for carbon dioxide in this final action. The specific
                provisions are as follows:
                i. In-Situ Oil Droplet Size Distribution Analysis, Including the Mass
                or Volume Mean Diameters Between Droplet Sizes Ranging From 2.5 to 2000
                [mu]m, With the Majority of Data Collected Between the 2.5 and 100
                [mu]m Sizes
                 A commenter requested additional descriptions of the methodology
                for determining droplet size. They expressed concern that while
                techniques such as Laser In-situ Scattering and Transmissometry (LISST)
                can measure droplet size, there needs to be a process for confirming
                that the particles are dispersed oil versus other types of suspended
                particles. They suggested the concurrent use of fluorometers to help
                differentiate oil droplets from other particles. Another commenter
                similarly suggested that EPA clarify that droplet measurement methods
                should include fluorometers or similar instrumentation. This commenter
                also stated that the use of fluorometry could aid in confirming the
                measurement of actual oil droplets as opposed to other particles in the
                water column.
                 A commenter discussed concerns related to the feasibility of in-
                situ droplet size measurements. They indicated that LISST has a droplet
                size detection limit of around 500 [micro]m, well below the upper limit
                of the proposed range of 2.5-2000 [micro]m. They also stated that there
                is currently no commercially available droplet measurement
                instrumentation that is operational in deep water to size ranges up to
                2000 [micro]m. They indicated that if this instrumentation did become
                available in the future, it would likely require remotely operated
                vehicles (ROV) or additional vessel support, which would be impossible
                to deploy without interfering with response activities. This commenter
                recommended that EPA allow for alternative methods for measuring
                droplet size including high definition, high speed photography, or
                sonar as these technologies mature.
                 A commenter indicated strong support for the proposed updates to
                this section of the proposed rule, stating that droplet size
                measurement is critical for response actions. Similarly, a commenter
                stated that they agreed with EPA that the collection of droplet size
                distributions will add valuable information during response actions.
                 The Agency is not requiring the use of specific oil size droplet
                measurement methods or instrumentation. Further, the Agency is not
                requiring the use of single instrument, methodology, vessel, or ROV be
                used to collect the required information. How to collect the
                information is left for the responsible party to determine and document
                in the DMQAPP. The Agency is requiring that droplet size information be
                collected because oil droplet sizes generally decrease with dispersant
                addition and because oil droplets below 100 [micro]m generally remain
                entrained into the water column, relative to larger particles that may
                eventually resurface over time. Furthermore, collecting oil droplet
                sizes of a broader range informs trajectory modeling used to predict
                the fate and transport of dispersed oil and to inform sampling
                locations. This final rule requires that sample collection follow
                established standard operating and quality assurance procedures that
                are reliable and defensible; standard operating procedures should
                include the equipment needed for sample collection. The Agency agrees
                with the concurrent use of fluorometers to help differentiate oil
                droplets from other particles. The final rule includes fluorometry as
                part of the water sampling requirements. The Agency does not designate
                specific methods or devices in this final rule, including methods for
                measuring droplet size such as high definition, high speed photography,
                or sonar.
                ii. In-Situ Fluorometry and Fluorescence Signatures Targeted to the
                Type of Oil Discharged and Referenced Against the Source Oil
                 A commenter indicated that the proposed fluorometry measurements
                are redundant and less informative than the droplet size measurements.
                They suggested that collection of these measurements be optional and
                handled on a case-by-case basis. This commenter also requested that EPA
                substantiate the need to replace the existing SMART protocols, which
                provide similar monitoring approaches including the use of simple
                fluorometry in the SMART Tier II protocol.
                 Another commenter suggested additional resources for planning and
                conducting sample collection and monitoring in the field. They
                indicated that the use of SMART Tier III fluorometry tows could
                facilitate the collection of before and after treatment samples from
                outside and inside the slick area.
                 Other commenters expressed support for the proposed fluorometry
                measurements, but requested clarification related to the use of in-situ
                fluorometry in the response context. These commenters suggested that
                EPA clarify that oil weathering and dispersion can impact the
                fluorescence of oil components. These commenters also indicated that
                site-specific calibration may be necessary in
                [[Page 40253]]
                response to changing turbidity or particle size distribution. A
                commenter suggested that EPA should make it clear that without
                measurement of fluorescence signatures (fluorescence measures across
                multiple wavelengths), most commonly used in-situ fluorometers only
                provide an approximate indication of oil in the water column. These
                commenters requested that EPA clarify that these methods cannot
                distinguish oil signals, and added that most dispersants fluoresce as
                well, potentially adding to difficulties interpreting in-situ
                fluorescence measurements.
                 The Agency agrees that collection of samples from outside and
                inside the slick area prior to and after dispersant application serves
                to inform the initial effectiveness of surface dispersant application.
                SMART Tier II and III protocols similarly note three primary target
                locations: (1) Ambient background water (no oil); (2) oiled surface
                slicks prior to dispersant application, and (3) post-application, after
                the oil has been treated with dispersants. EPA emphasizes that these
                water column sampling requirements are not replacing the SMART
                protocols and that EPA assumes the SMART Tier III protocol is also
                being implemented as part of the response. EPA is requiring that sample
                collection under the new monitoring requirements follow established
                standard operating and quality assurance procedures.
                 The Agency disagrees that fluorometry is a redundant measurement.
                For crude petroleum oils, the aromatic fraction is responsible for the
                fluorescence property of petroleum. Instruments that measure particle
                size, such as the LISST, do not distinguish between oil droplets and
                other types of particles in the same size range. Fluorometers can be
                targeted to the type of oil discharged and the excitation and emission
                wavelengths chosen should match the aromatic properties of the oil
                discharged. Fluorescence is a valuable screening tool deployed during a
                response, providing a rapid indication of potential dispersed oil in
                the water column, as well as an indicator of dispersion effectiveness.
                The final rule requires the responsible party to conduct a fluorescence
                intensity analyses on water samples collected to determine fluorescence
                signatures of the dispersed oil. To the extent the commenter believes
                that most dispersants fluoresce, potentially adding to the difficulty
                interpreting in-situ fluorescence measurements, the Agency expects this
                concern will be addressed in the DMQAPP.
                iii. Dissolved Oxygen (DO) (Subsurface Only)
                 A commenter indicated support for the collection of DO samples and
                agreed with the proposed approach of using the Winkler titration method
                to verify sample results. A commenter requested that the proposed rule
                be updated to require DO measurements using the best available devices.
                They also indicated that measurement verification using Winkler
                titration is impractical and outdated. They recommended instead that
                verification be conducted by the use of consistent sensor cleaning
                procedures, calibration tests, and redundant sensors which can be
                compared. In an effort to avoid slowing the process and information
                flow, they recommended that verification should only be required on a
                fraction of collected samples instead of for every sample.
                 The Agency recognizes that relying solely on measurements from in-
                situ oxygen instruments may lead to an erroneous interpretation of
                oxygen data. While the Agency does not require Winkler titration as
                confirmatory analysis in the final rule, the Agency believes that ex-
                situ DO measurements should generally be conducted using Winkler
                titrations to confirm in-situ DO measurements and notes that the OSC
                can require DO measurements be conducted using Winkler titrations if
                necessary. The Agency disagrees that measuring DO using Winkler
                titrations is impractical and outdated. For example, the use of Winkler
                titrations to measure dissolved oxygen provides for accurate
                measurements in subsurface waters where DO may already be low.
                Additionally, the final rule does not state the number of samples
                required for DO verification because this and the confirmatory analysis
                methodology should be addressed in the DMQAPP to ensure that DO
                measurements follow established standard operating and quality
                assurance procedures that are reliable and defensible.
                 The Agency agrees with commenters' concerns regarding tailoring DO
                measurements. DO is an important variable to monitor in the application
                of dispersants, particularity in subsurface waters that may inform
                operational decisions. For surface dispersant application, DO is
                expected to be higher in the mixed layer in the surface water. Because
                DO is expected to be higher in the mixed layer of the surface water,
                the Agency is not finalizing the proposed DO requirements for surface
                dispersant application. However, the Agency strongly recommends RRTs
                and OSCs, as part of their authorized activities under the NCP,
                consider adding DO as a monitoring requirement for surface dispersant
                application in surface waters where DO is believed to be limited.
                iv. Total Petroleum Hydrocarbons, Individual Resolvable Constituents,
                Including Volatile Organic Compounds, Aliphatic Hydrocarbons,
                Monocyclic, Polycyclic, and Other Aromatic Hydrocarbons, Including
                Alkylated Homologs, and Hopane and Sterane Biomarker Compounds
                 A commenter expressed support for the proposed requirements to
                analyze TPHs, individual resolvable constituents, including volatile
                petroleum hydrocarbons and branched/normal aliphatic hydrocarbons. A
                commenter also indicated support for the requirements to analyze
                monocyclic, polycyclic, and other aromatic hydrocarbons, including
                their alkylated homologs and hopane/sterane biomarker compounds. They
                suggested that results from these analyses can inform forensic
                assessment of collected samples. A commenter suggested that EPA should
                specify a standard analytical method for performing these analyses
                (from the multiple methods available) for water column samples. A
                commenter indicated that, as discussed by EPA, measurement of TPH alone
                is inadequate when attempting to assess the fate and effects of
                dispersed oil during a response. A commenter also communicated support
                for the proposed rule, adding that identifying concentrations of oil
                and associated components, as opposed to only the presence or absence
                of oil, is critical.
                 A commenter suggested that EPA adopt quick-screening methods for
                sampling TPHs by means of a hand-held gas chromatograph flame
                ionization detector (GC-FID). They indicated that detailed analysis for
                these components will not inform response decision-making and should
                instead be completed as part of the NRDA process. This commenter also
                suggested that the analytical requirements should apply to a fraction
                of the collected samples as opposed to every water sample.
                 EPA did not propose to use only TPH measurements to assess the fate
                and effects of dispersed oil, but rather included it along with other
                monitoring approaches in the final rule to assess the fate and effects
                of dispersed oil. The Agency is not specifying the type of analytical
                equipment or methods needed for sample collection. The Agency believes
                that standard operating procedures should describe the appropriateness
                of the sampling method and should be included in the DMQAPP.
                [[Page 40254]]
                 The Agency disagrees that the detailed analysis of oil constituents
                is more appropriate for the NRDA process, and believes that
                comprehensive monitoring in certain discharge situations is necessary
                to determine the overall effectiveness of dispersants and should extend
                beyond the initial dispersant application to include the transport and
                environmental effects of the dispersant and dispersed oil in the water
                column. The final rule requires that sample collection follow
                established standard operating and quality assurance procedures that
                are reliable and defensible. Additionally, the final rule does not
                state the number of water samples required for analysis because this is
                to be determined on a case-by-case basis.
                v. Methane, if Present (Subsurface Only)
                 A commenter responded to this section of the proposed rule which
                requires the measurement of methane in water column samples during
                response activities. This commenter stated that monitoring of methane
                is unnecessary because it is linked to potential oxygen depletion, and
                therefore, is sufficiently covered with the monitoring requirements for
                DO.
                 The Agency agrees that methane biodegradation may lead to oxygen
                depletion but disagrees that it is sufficiently covered by the
                monitoring requirements for DO. Depletion of DO may be caused by other
                factors such as the biodegradation of lower molecular weight alkanes.
                Should DO depletion occur, understanding the correlation of potential
                substrates to DO is an important factor relative to the effects of
                dispersant use and may inform response decision-making.
                vi. Heavy Metals Analysis, Including Nickel and Vanadium
                 Some commenters expressed support for the proposed updates. They
                agreed that heavy metals should be analyzed in monitoring samples,
                including nickel and vanadium concentrations. A commenter expressed
                concern that the analysis of heavy metals in water column samples does
                not have any relevance to monitoring of dispersed oil and does little
                to inform response decision-making. The commenter indicated they see no
                operational reasoning behind the collection of these data and suggested
                that the requirement for heavy metal analyses would lead to unnecessary
                delays and costs during response efforts.
                 The Agency disagrees that the analyses of heavy metals in water
                column has no relevance to monitoring of dispersed oil and does little
                to inform response decision-making. Crude petroleum oil may contain
                heavy metals, including nickel and vanadium.\2\ The December 17, 2010
                OSAT report entitled ``Summary Report for Sub-Sea and Sub-Surface Oil
                and Dispersant Detection: Sampling and Monitoring'' specifically
                included nickel and vanadium as part of the water sampling analyses.
                Furthermore, EPA specifies that dispersant products must be analyzed
                for arsenic, cadmium, chromium, copper, lead, mercury, nickel, zinc,
                plus any other metals that may be reasonably expected to be in the
                product sample as part of the NCP product listing requirements under 40
                CFR 300.915(a)(11)(i). Dispersing oil may increase the bioavailability
                of those heavy metals to marine organisms. In addition, monitoring
                heavy metals serves to inform water quality standards and thus is an
                important parameter to include in the monitoring requirements. The
                Agency does not expect these monitoring requirements to lead to delays
                given the flexibility provided under the new daily reporting
                provisions. Furthermore, the Agency disagrees with the characterization
                that these analyses lead to unnecessary costs for the reasons stated
                above in this paragraph and elsewhere in this Response to Comments
                document that address the appropriateness of this final action.
                ---------------------------------------------------------------------------
                 \2\ Walters, C. (2021). Petroleum. In Kirk-Othmer Encyclopedia
                of Chemical Technology, (Ed.). https://doi.org/10.1002/0471238961.1518090702011811.a01.pub3.
                ---------------------------------------------------------------------------
                vii. Turbidity
                 Commenters indicated support for the proposed turbidity measurement
                requirement. A commenter stated that turbidity measurements are useful
                for determining the potential for dispersants and other products to act
                as sinking agents. The commenter suggested that in cases where
                turbidity may cause treated oil to sink, the use of dispersants or
                other treating agents should be prohibited.
                 A commenter who also indicated support for the proposed
                requirements for the collection of turbidity data agreed with EPA
                regarding concerns about the potential for agents to enhance the
                formation of oil-mineral aggregates (OMA) and marine oil snow (MOS) in
                the water column, putting benthic ecosystems at risk.
                 The Agency acknowledges commenters' support for the turbidity
                requirement. Turbidity is a general measure of water clarity and is
                measured by how much the amount of material suspended in water
                decreases the passage of light through the water. Suspended materials
                may include soil particles (clay, silt, and sand), algae, plankton,
                microbes, and other substances. Turbidity measurements provide a
                relatively quick assessment of suspended materials in the water bodies
                and are useful in determining the presence of materials that could
                interfere with oil particle size measurements. Finally, turbidity is
                included as a monitoring parameter in the SMART Tier III protocol.
                 The Agency notes that prohibition of the use of chemical agents is
                not addressed in this final action. Furthermore, dispersants are not
                sinking agents because they are not intended to sink the oil to the
                bottom of a water body and are defined separately from sinking agents
                in the NCP. However, the Agency recognizes concerns regarding the
                potential for dispersed oil as one pathway to contribute to Marine Oil
                Snow Sedimentation and Flocculent Accumulation (MOSSFA) in the water
                column that could potentially lead to settling. This final action does
                not prevent the OSC or RRTs, as part of their authorized activities
                under the NCP, from requiring additional monitoring parameters, which
                may include benthic biota monitoring, sediment characterization, and
                other physical measurements of solids in the water (e.g., total
                suspended solids).
                viii. Water Temperature, pH, and Conductivity
                 The Agency received no comments specific to these provisions and is
                finalizing the requirements as proposed.
                ix. Carbon Dioxide (CO2)--Removed
                 A commenter responded to the section of the proposed rule which
                requires the measurement of CO2 in water column samples
                during response activities. This commenter indicated that the proposed
                rule is unclear in term of the benefits that CO2 monitoring
                provides that are not already provided by DO monitoring. They also
                expressed concern that there is a limit to the number of sensors that
                can be deployed from a vessel during a response. The commenter stated
                that adding CO2 to the analysis suite complicates the
                deployment of these instrument arrays.
                 The Agency notes that the aerobic biodegradation of oil
                constituents not only consumes DO but would also produce
                CO2. Increases in the CO2 concentration that
                coincide with decreases in the DO concentration would provide credible
                evidence that biodegradation of oil is occurring. The Agency proposed
                measuring the in-situ CO2 for subsurface dispersant
                [[Page 40255]]
                applications because the Agency believed it would be a good indicator
                of microbial oxidation and inform the OSC on potential fate. However,
                the Agency agrees that adding CO2 sensors may not always be
                practicable and that the other monitoring requirements indirectly
                inform potential biodegradation. Therefore, the Agency is not
                finalizing this proposed requirement at this time. The RRTs and OSCs,
                as part of their authorized activities under the NCP, may still
                consider adding CO2 measurements and other biodegradation
                characterization assessments on a case-by-case basis.
                D. Oil Distribution Analyses
                 The new provisions include requirements for the responsible party
                to characterize the dispersant effectiveness and oil distribution,
                including trajectory analysis. As the OSC's oversight role over the
                responsible party is already established in the NCP, the Agency has
                removed the phrase ``in consultation with the OSC'' for Sec.
                300.913(c) the oil distribution analysis. This characterization is to
                consider available technologies, account for the condition of oil,
                dispersant, and dispersed oil components from the discharge location,
                and describe any associated uncertainties.
                 Several commenters supported EPA's proposed language for Sec.
                300.913(c). A commenter supported this section but commented that the
                regulation should recognize the limitations of oil distribution
                analyses in areas that lack good ocean current predictive models or
                observational data. Another commenter expressed strong support for
                efforts to elucidate dispersant effectiveness but noted that
                effectiveness monitoring should be used only when it does not impede
                response operations. Another commenter stated that EPA should
                acknowledge that the available methods for anticipating the movement of
                dispersed oil plumes are limited and may complicate the monitoring
                process. A commenter noted that sampling and monitoring programs should
                acknowledge uncertainties about where an oil plumes may travel.
                 The Agency recognizes oil distribution analyses may be affected by
                the data quality used to inform the analysis, which also includes
                parameters based on assumptions. In addition, trajectory models, which
                are used to predict the movement of dispersed oil plumes, may have
                uncertainties associated with modeling parameters. EPA is amending the
                regulatory text to clarify that oil distribution analyses includes
                trajectory modeling since this is an essential aspect of dispersed oil
                movement as the result of dispersant application, particularly in areas
                where water currents are highly influential to the oil discharge and
                inform water sampling locations. EPA agrees with concerns that these
                uncertainties could affect sampling and monitoring programs. Therefore,
                the Agency is amending the regulatory text to recognize uncertainties
                associated with trajectory modeling as part of the distribution
                analysis.
                 A commenter suggested including a NOAA SSC in the review of data
                provided in this section to provide valuable credibility and support to
                the OSC, while noting that perceptions of the responsible party
                directing the process should be avoided. Another commenter suggested
                EPA might want to consider including directions for the use of local
                expertise in these analyses.
                 The NCP describes the role of SSCs under 40 CFR 300.145(c) to
                include providing scientific support for operational decisions and for
                coordinating on-scene scientific activity during a response, as
                requested by the OSC. Coordinating on-scene scientific activity during
                a response may include consideration of input from local experts. The
                NCP also describes the OSC's roles and responsibilities under 40 CFR
                300.120, which includes directing response efforts and coordinating all
                other efforts at the scene of a discharge. As a result, EPA believes
                the NCP already sufficiently recognizes the SSC's role in support of
                the OSC.
                 Some commenters stated that the rule needs to be clearer on what is
                required for surface monitoring and what is required for subsea
                monitoring, suggesting that each subsection should be divided into the
                aspects. These commenters also suggested that EPA should consider
                changing ``best available technologies'' to ``best practicable
                technologies'' in this section, to avoid equipment that is not suitable
                for field conditions. A commenter stated that the best available
                technology requirement should acknowledge aerial photography as a tool
                to measure effectiveness, as this was a key method of assessment during
                the Deepwater Horizon response. The commenter also stated that the
                relative effectiveness of surface application should be determined
                using the SMART protocols, noting that the amount of oil on the surface
                to which dispersants are being sprayed is impossible to determine, so
                effectiveness can't be quantified, and that the analytical equipment
                often cannot return to the spray site in time to capture the
                information requested as the dispersant plume quickly dilutes or cannot
                be found.
                 The Agency believes the final rule is clear relative to the
                requirements for subsurface and surface monitoring and that dividing
                the monitoring section into separate subsections is unnecessary. The
                Agency has noted in the regulatory text and provided additional
                clarification in this preamble to delineate where requirements are
                different. EPA recognizes the commenter's concern relative to the term
                ``best available technology'' but disagrees that it should be changed
                to ``best practicable technologies'' to avoid equipment that is not
                suitable for field conditions. The proposal did not specify equipment
                in the Oil Distribution Analyses section, but rather included the term
                ``best available technology'' to capture advances in technology (e.g.,
                modeling and equipment). The intent was to ensure these advances in
                characterizing the dispersant effectiveness and oil distribution
                continue to be implemented. For example, oil distribution is typically
                informed by trajectory modeling to predict the movement of dispersed
                oil plumes. The Agency recognizes that improvements to trajectory
                modeling continue over time and seeks to incorporate such advancements
                in the new monitoring requirements. The Agency is finalizing the term
                ``considering available technologies'' instead of the term ``best
                available technology.'' Available technologies used and their
                applicability to the specific discharge situation should be described
                in the DMQAPP. The Agency believes this new provision provides the
                opportunity for the OSC to consider relevant technologies and addresses
                the intent to capture advances in technology.
                 EPA disagrees that aerial photography, as a tool to measure
                effectiveness, should be acknowledged as a best available technology.
                EPA recognizes that the SMART Tier I protocol bases initial dispersant
                effectiveness assessment using photographic job aids or advanced remote
                sensing instruments flying over the oil slick with a trained observer.
                EPA also recognizes that NOAA developed a Dispersant Application
                Observer Job Aid, which is a field guide for responders trained in
                observing and identifying dispersed and undispersed oil, describing oil
                characteristics, and reporting this information to decision-makers.
                However, EPA is unaware of any similar NRT-approved protocols or NOAA-
                developed job aids to assess the initial effectiveness of subsurface
                [[Page 40256]]
                dispersant application. Furthermore, the requirements for monitoring
                surface dispersant application for atypical dispersant applications
                necessitate specific considerations beyond those addressed by SMART.
                According to the 2013 NRT Environmental Monitoring for Atypical
                Dispersant Operations guidance document, such atypical uses of
                dispersant during a response were not addressed in the existing SMART
                monitoring program. While some monitoring requirements are only
                included in the SMART Tier III protocol (e.g., turbidity, pH,
                conductivity, temperature), other requirements (e.g., in-situ droplet
                size distribution) important to understanding dispersant effectiveness
                are not.
                 A commenter stated that the relative effectiveness of the surface
                application should be determined by using the SMART protocols, but also
                noted the analysis equipment often cannot return to the spray site in
                time to capture the information requested, because the dispersant plume
                quickly dilutes or cannot be found. According to the SMART protocols,
                Tier II and III use towed fluorometry to characterize effectiveness,
                requiring the vessel to pass through the oil slick after dispersant is
                applied. For the SMART Tier II protocol, the team collects data in
                three primary target locations: (1) Ambient background water (no oil);
                (2) oiled surface slicks prior to dispersant application, and (3) post-
                application, after the oil has been treated with dispersants. The Tier
                III protocol follows procedures from the Tier II protocol, and in
                addition collects information on the transport and dispersion of the
                oil in the water column to help verify that the dispersed oil is
                diluting toward background levels. The commenter's characterization
                that the dispersant plume quickly dilutes or cannot be found seems
                contrary to their recommendation to use the SMART protocols data
                collection procedures. The Agency notes that the commenter did not
                provide supporting evidence that the dispersed oil plume always quickly
                dilutes and cannot be found. The assumption that dispersed oil plume
                quickly dilutes and cannot be found does not account for the many
                factors that impact dispersant effectiveness, including for example the
                specifics of the discharge situations (e.g., continuous discharges),
                the weathering of the oil, and the mixing conditions. Both the SMART
                protocols and the monitoring provisions finalized in this action are
                designed to provide feedback on the efficacy of dispersant application
                in dispersing the oil. The Agency believes monitoring provides
                information on dispersant effectiveness, including for those
                occurrences of non-detection of dispersed oil after dispersant
                application. The Agency also notes that advances in technology using
                remote sensing vehicles may allow for data collection prior to and
                after dispersant application with responders in an offset area to
                inform the fate and transport of the oil plume.
                 A commenter stated the monitoring requirements need the concurrence
                of the DOI's regional response team (RRT) representative as well, since
                these results provide information relevant to DOI's trust resources. In
                addition, a commenter stated that because of inherent conflict of
                interest, a qualified third party acceptable to the OSC, EPA, and the
                DOI RRT representatives should conduct all monitoring.
                 EPA recognizes conflicts of interest concerns. The Agency notes
                that the NCP addresses the OSC's oversight role of the responsible
                party as part of the OSC's authority. The final rule does not preclude
                the OSC from seeking a qualified third party to conduct additional
                monitoring or from consulting with relevant governmental agencies, or
                from performing or having a third party perform monitoring. The Agency
                disagrees that decisions regarding monitoring of oil distribution and
                weathering are left up to the responsible party as the Clean Water Act
                and the NCP give the OSC clear authority to direct the responsible
                party during a response. The Agency also disagrees that the responsible
                party is the primary advisor for aspects of dispersant decision-making
                and monitoring. The monitoring requirements are intended to provide
                decision-makers, whose roles and responsibilities are described in the
                NCP, with relevant information to consider. The monitoring requirements
                do not prevent the OSC and other response decision-makers from
                considering monitoring information, including monitoring information
                collected by other entities besides the responsible party, to also be
                used to inform dispersant use decisions. While the final rule places
                the monitoring requirements on the responsible party, these
                requirements should not be interpreted or perceived as the responsible
                party directing the process or controlling how the dispersant
                effectiveness and dispersed oil fate data are interpreted. The Agency
                notes that the NCP already provides for natural resource trustee input
                for dispersant use as a response option under 40 CFR 300.910--
                Authorization of Use, and Sec. 300.305(e)--Phase II--Preliminary
                assessment and initiation of action.
                E. Ecological Characterization
                 The new provisions include requirements for the responsible party
                to characterize the ecological receptors (e.g., aquatic species,
                wildlife, and/or other biological resources) and their habitats that
                may be present in the discharge area and their exposure pathways. As
                the OSC's oversight role over the responsible party is already
                established in the NCP, the Agency has removed the phrase ``in
                consultation with the OSC'' for Sec. 300.913(d) ecological
                characterization. As part of this characterization, the responsible
                party must include in this characterization those species that may be
                in sensitive life stages, transient or migratory species, breeding or
                breeding-related activities (e.g., embryo and larvae development), and
                threatened and/or endangered species that may be exposed to the oil
                that is not dispersed, the dispersed oil, and the dispersant alone. The
                responsible party must also estimate an acute toxicity level of concern
                for the dispersed oil using available dose/response information
                relevant to potentially exposed species.
                 Several commenters agreed with EPA's proposed language requiring
                ecological characterization and the use of species sensitivity
                distributions and ecotoxicity benchmarks. These commenters emphasized
                that careful monitoring of biological receptors is important but
                commented that this should be done by independent scientists, and not
                by the responsible party because of conflict of interest. Another
                commenter generally supported the proposed additions to Sec.
                300.913(d). Another commenter stated that ecological characterizations
                should be done by scientists on behalf of local resource agencies,
                given that the required information can be complex and subtle,
                requiring expertise on seasonality, life cycles, habitat interactions,
                important and sensitive habitats, and other physical and biological
                factors that influence how ecosystem components respond to oil,
                dispersant, and dispersed oil.
                 Some commenters offered amendments to this section. A commenter
                stated that EPA should require consultation with the DOI and Department
                of Commerce (DOC) natural resource trustees, not just the OSC, when
                developing ecological-receptor characterization. Another commenter
                stated that sensitive receptors and toxicity thresholds should be
                developed at a local/regional level based on the marine ecosystem, food
                web, abundance
                [[Page 40257]]
                of primary and secondary producers, and other factors that influence
                ecotoxicity, given significant variation throughout the United States.
                 The Agency recognizes commenters' position that independent
                scientists conduct monitoring of biological receptors, rather than the
                responsible party, because of potential conflict of interest. The
                Agency notes that the NCP addresses the OSC's oversight role of the
                responsible party. The monitoring amendments in the final rule do not
                preclude the OSC from seeking independent parties to conduct additional
                monitoring, including from local, state and federal agencies. EPA
                agrees with concerns that the required information can be complex and
                subtle, requiring expertise on seasonality, life cycles, habitat
                interactions, important and sensitive habitats, and other physical and
                biological factors that influence how ecosystem components respond to
                oil, dispersant, and dispersed oil. Furthermore, the NCP provides for
                natural resource trustee input for dispersant use as a response option
                under 40 CFR 300.910--Authorization of Use, and Sec. 300.305(e)--Phase
                II--Preliminary assessment and initiation of action. Therefore, the
                Agency does not believe it is necessary for additional requirements
                under the monitoring section to recognize the role and responsibilities
                of natural resource trustees relative to the responsible party
                developing ecological-receptor characterization.
                 The Agency agrees with commenters that sensitive receptors and
                toxicity thresholds should consider relevant local/regional factors.
                EPA agrees with commenters that the review of acute toxicity
                information should include actual toxicity test results of potentially
                exposed species in the area of the spill, but the Agency also
                recognizes that the use of a surrogate species when constructing the
                species sensitivity distribution (SSD) may be necessary if relevant
                toxicity data for site-specific species is unavailable.
                 Some commenters stated that they support environmental monitoring
                that contributes to operational decision-making, but also stated that
                the required monitoring to determine possible environmental effects is
                too time consuming to support dispersant operations decisions and that
                conducting the required ecological characterization of the spill site
                may not be possible in the available response time frame. The
                commenters stated that if the untreated oil is likely to drift ashore
                and impact a sensitive coastal resource within a day or two unless it
                is dispersed, there will be a very finite period of time for such
                considerations suggested in the proposed rule. Another commenter agreed
                that monitoring to determine possible environmental effects is too time
                consuming and added that monitoring required to determine possible
                environmental effects is already accommodated within the existing
                Incident Command System (ICS) structure (e.g., wildlife team and the
                NRDA team). A commenter stated that while known ecological benchmarks
                may be constructive, it is not clear how exceedances of the thresholds
                would impact decision-making in practice. This commenter stated that
                requiring dispersant operations to stop due to a single-species
                exceedance may result in higher environmental damage overall. The
                commenter suggested that SSDs are a misuse of the method that is
                counter to establishing frameworks appropriate to dynamic ocean
                settings. The commenters stated that NEBA should be the basis to make
                operational decisions on whether dispersants and/or other agents should
                be used during a response.
                 The Agency agrees with comments that support environmental
                monitoring as contributing to operational decision-making, but
                disagrees with the comment that monitoring to determine possible
                environmental effects is too time consuming to support dispersant
                operations decisions and that monitoring required to determine possible
                environmental effects is already accommodated within the existing ICS
                organizational structure (e.g., wildlife team and the NRDA team). A
                goal of NRDA is to compensate the public for losses to natural
                resources and resource services resulting from injury as a result of an
                oil discharge. While a NRDA team may be recognized in the ICS, it is
                independent of, and complementary to, the response action. The
                monitoring requirements are tailored to dispersant use and to inform
                response decision-making regarding that use, while other ICS
                organizations focus on general environmental effects of the response,
                not necessarily related to dispersant use. The Agency also disagrees
                that conducting the required ecological characterization of the spill
                site may not be possible in the available response time frame. The
                premise that untreated oil is likely to drift ashore and impact a
                sensitive coastal resource within a day or two unless it is dispersed
                implies that no other response options are available to prevent impacts
                to sensitive coastal resources and that these sensitive coastal
                resources are the sole response priority to consider in determining
                dispersant use. Dispersants are not the only option for oil spill
                response: Other response options may also prevent or lower overall
                environmental damage. When responding under the NCP, decisions on
                dispersants and/or other chemical agents made by the OSC and other
                federal agencies with roles and responsibilities under the NCP during a
                response are to be made in accordance with the NCP. While there is no
                prohibition on the use of environmental tradeoff methodologies, the use
                of such methodologies must be in conformance with the statutory and
                regulatory authorities that govern dispersant use. Furthermore, the
                Agency noted in the proposed rule (80 FR 3398) relevant sources of
                information (e.g., environmental assessments or statements, Federal and
                state environmental databases, ACP-Fish and Wildlife and Sensitive
                Environments Plan Annex; NOAA-Environmental Sensitivity Indices) that
                the responsible party may refer to in developing the characterization
                of ecological receptors. In addition, applicable facility or vessel
                response plans may also have relevant information. It is important to
                note that this final action is not requiring this information to be
                included in these planning documents, rather that these documents may
                serve as resources of relevant information. Finally, it is unclear how
                methodologies cited and supported by commenters evaluate environmental
                trade-offs for decision-making without the characterization of
                ecological receptors.
                 Another commenter noted that the phrase ``but not be limited to''
                should be added to a phrase in the proposal so the term ``include'' is
                not interpreted as limiting. ``The Agency believes that the ecological
                characterization should include, but not be limited to, those species
                that may be in sensitive life stages . . . .''
                 The Agency acknowledges the commenter's suggestion that the phrase
                ``but not be limited to'' be added to a phrase in the proposal so the
                term ``include'' is not interpreted to be limiting, so that the
                sentence reads: ``The Agency believes that the ecological
                characterization should include, but not be limited to, those species
                that may be in sensitive life stages . . .''. The Agency did not intend
                and does not believe that the term ``including'' is limiting. However,
                the Agency is modifying the sentence in the proposal to reflect this
                suggested change for clarity.
                 A commenter stated that the regulation should specify that an
                invitation to participate, at least in a
                [[Page 40258]]
                consultation and review role, should be extended to the appropriate
                federal, state, and local authorities. A commenter stated that EPA
                should add to Sec. 300.913(d) that a DOI representative should
                participate in this process.
                 Applicable Area Contingency Plans include input from relevant
                local, state, and federal agencies whose roles and responsibilities are
                identified in the NCP for the Area Committee. While the Agency did not
                propose to amend requirements for Area Contingency Planning and those
                requirements are outside the scope of this final action, EPA recognizes
                the Area Committee's role in ecological characterization as provided in
                the Fish and Wildlife and Sensitive Environments Plan in 40 CFR
                300.210(c)(4). The final rule does not prohibit the OSC from seeking
                input from the appropriate federal, state, and local authorities.
                 A commenter asked EPA to clarify that toxicity monitoring is
                required following dispersant applications. Another commenter suggested
                the following revisions to EPA's approach to ecotoxicity benchmarks
                (EBs):
                 The proposed approach will not fully characterize
                potential impacts on biological resources. Where EBs exist for these
                other hydrocarbon constituents, measured concentrations of those
                parameters need to be compared to these more specific toxicological
                benchmarks;
                 The toxicity level should also include the dispersant
                since it has been found that dispersants alone are generally less toxic
                than oil, but that most dispersant and oil mixtures are more toxic than
                oil alone;
                 The proposed approach to compare water concentrations with
                EBs for heavy metals and total petroleum hydrocarbon will not fully
                characterize potential impacts on biological resources;
                 Examining only acute toxicity data does not capture the
                full effects of a spill, since it does not take into account indirect
                or sub-lethal effects, which could also alter populations and
                ecological communities;
                 The review of acute toxicity information should include
                actual toxicity test results of potentially exposed species in the area
                of the spill, since the use of a surrogate species could vastly
                underestimate the actual toxicity of species in the area;
                 EPA should calculate separate SSDs for unique
                environments;
                 Toxicity testing using natural light will be important
                given the well documented phenomenon of photo-enhanced toxicity of
                certain oil constituents; and,
                 The commenter expressed concern about EPA's approach to
                derive chronic toxicity benchmarks by applying safety factors to the
                acute toxicity EBs because the specific chemicals and toxicity
                mechanisms involved in acute toxicity are different from those involved
                in chronic toxicity.
                 The proposed rule discussed an approach to monitor acute toxicity
                in the water column by comparing TPH concentrations in water samples to
                TPH-based EBs or to chronic toxicity benchmarks derived by applying a
                safety factor to the acute toxicity EBs. The Agency stated that SSDs,
                which allow for species relevant to the location of the discharge to be
                considered, could be developed for representative oils (e.g., crude
                oils) using existing acute toxicity values where sufficient species
                diversity are available. The Agency acknowledges that examining only
                acute toxicity data does not capture the full effects of a spill
                because it does not take into account indirect or sub-lethal effects.
                The Agency recognizes that specific chemicals and toxicity mechanisms
                involved in acute toxicity can be different from those involved in
                chronic toxicity. However, applying safety factors to the acute
                toxicity-based benchmarks to derive chronic benchmarks is not intended
                to discern toxicity mechanisms; rather it is intended to account for
                potential toxic impacts to relevant species. Furthermore, EPA
                recognizes that not all acute toxicity data is derived using similar
                exposure conditions and that SSDs should be calculated from acute
                toxicity data that reflects the site-specific exposure profiles.
                Finally, EPA recognizes the proposed approach does not fully
                characterize potential impacts on biological resources from other
                exposure mechanisms that may cause adverse impacts, such as oil
                smothering and coating.
                 While the Agency did not propose to establish specific EB
                thresholds, EPA recognizes that EBs should be consistent with
                information in applicable ACPs. The Agency noted in the proposed rule
                that EBs could be computed from the fifth percentile of the SSD as the
                hazard concentration 5 percent (HC5), as they are considered protective
                of 95 percent of species, have been used by EPA for developing ambient
                water quality criteria, and are generally accepted by the international
                risk science community. For the reasons above, EPA disagrees with
                commenters who suggested that SSDs is counter to establishing
                frameworks appropriate to dynamic ocean settings. Furthermore, EPA is
                clarifying the final rule text to specify that acute toxicity levels of
                concern are determined using the SSD approach.
                 EPA did not propose in the monitoring section that dispersant
                operations stop due to a single-species exceedance. However, EPA does
                not agree that stopping dispersant use over a single species exceedance
                will necessarily result in higher environmental damage overall.
                Dispersants are not the only available response tool, and other
                response options may also lower overall environmental damage. EPA
                believes that Congress' primary intent in regulating products (e.g.,
                dispersants) under Subpart J is to protect the environment, including
                the water column, from possible deleterious effects caused by the
                application or use of these products. Decisions on the use of
                dispersants and other agents used during a response are to be made in
                accordance with the NCP and the governing statute(s). Environmental
                tradeoff methodologies where dispersants are considered must be in
                conformance with the statutory and regulatory authorities that govern
                dispersant use.
                F. Immediate Reporting
                 The new provisions require the responsible party to immediately
                report to the OSC and, in coordination with the OSC, to the RRT any:
                (1) Deviation of more than 10 percent from the mean hourly dispersant
                use rate for subsurface application, based on the dispersant volume
                authorized for 24 hours use, and the reason for the deviation; and (2)
                ecological receptors of environmental importance, and any other
                ecological receptors as designated by the OSC or the Natural Resource
                Trustees, including any threatened or endangered species that may be
                exposed based on dispersed plume trajectory modeling and level of
                concern information.
                 Several commenters supported EPA's proposed immediate reporting
                provisions. Some commenters advocated for a 10 percent threshold for
                reporting deviations from the planned application rates for surface
                application in addition to subsurface application, while another
                commenter stated they do not support any subsurface application. A
                commenter stated that because the responsible party is already required
                to report hourly surface application rates on a daily basis under Sec.
                300.913(f), the commenter believes that adding a requirement for
                immediate reporting requirement in the case of deviations will add
                little, if any, marginal compliance costs.
                 In this action, the Agency is not including a reporting requirement
                of a
                [[Page 40259]]
                10 percent deviation threshold for reporting requirement from the
                planned application rates for surface dispersant application. The
                Agency recognizes differences in the subsurface and surface application
                of dispersants. For a continuous discharge, subsurface applications may
                occur uninterrupted at relatively few discharge locations. Surface
                application is typically made by one or more aircraft which have a
                relatively limited capacity to apply dispersant over multiple oil
                patches. This limited capacity requires aircraft to refuel and
                resupply. While multiple aircraft may be used, deviations of surface
                dispersant application rate from a single aircraft are not expected to
                confound monitoring data interpretation in a similar manner as 10
                percent deviation from subsurface application. Furthermore, the Agency
                is requiring daily reports of the specific hourly dispersant
                application rate and total amount of dispersant used for surface
                application to monitor dispersant use activity. The daily reports will
                inform changes in surface dispersant application usage. Finally, the
                RIA does not include a compliance cost because the proposed provision
                addressing more than 10 percent deviation for surface applications is
                not being finalized.
                 A commenter stated that all reports should simultaneously be made
                public. EPA recognizes the commenter's request that all reports should
                simultaneously be made public. While EPA shares the commenter's desire
                to make this information publicly available in a timely fashion, the
                Agency disagrees that this reporting should occur simultaneously with
                reporting to the OSC. Public communications authorities under the NCP
                are outside the scope of this action. The Agency notes that the OSC
                directs response efforts and coordinates all other efforts at the scene
                of a discharge in accordance with the NCP, including public information
                and community relations. The NCP provides instruction to the OSC on
                ensuring all appropriate public and private interests are kept informed
                and that their concerns are appropriately considered throughout a
                response. The Agency believes the OSC should be given the opportunity
                to evaluate response-related information and communicate relevant
                results to the public within the existing NCP framework.
                 A commenter suggested that specifics required in Sec. 300.910(e)
                should be provided to the OSC and RRT. A commenter requested that any
                field observations of impacts to sensitive species be reported to the
                OSC and trustee agencies. This could include dispersant applications
                which inadvertently spray birds, marine mammals, sea turtles, or other
                sensitive species. While the commenter refers to Sec. 300.910(e), the
                Agency believes that the commenter intended to include Sec. 300.913(e)
                because the heading of the section to the comment referred to Sec.
                300.913(e-f). The Agency agrees that the RRT, which includes the
                natural resource trustees, should receive this information within the
                command structure of the National Response System (NRS). Working within
                the command structure provides an orderly and efficient review of
                monitoring and other response-related information by the OSC and allows
                the OSC to develop situational awareness and efficiently and
                effectively collaborate with agencies designated in the NCP that have
                relevant roles and responsibilities in the response. EPA has revised
                the regulatory language in the final rule by adding a new provision,
                Sec. 300.913(g), to provide that the responsible party must
                immediately report to the OSC and coordinate with the OSC to provide
                the applicable RRT(s) (including any incident-specific RRTs) with this
                information. The Agency notes that including the RRT(s) as recipients
                of the immediate reporting information addresses a commenter's request
                to include natural resource trustees.
                 Some commenters stated that EPA should not develop requirements for
                daily authorizations of dispersant quantities. Another commenter also
                noted that the rule requires reporting based on deviations from
                authorized dispersant application in a 24-hour period, stating that EPA
                should not have daily authorizations for dispersant application because
                such restrictions would tremendously complicate dispersant operations
                and circumvent the NEBA process.
                 EPA did not establish requirements on daily authorization of
                dispersant quantities in the final rule on the monitoring requirements.
                The Agency is establishing an immediate reporting provision in this
                final action to provide a margin for variation within 10 percent of the
                mean hourly subsurface dispersant application rate to account for
                equipment performance. The Agency believes this margin adequately
                accounts for variations in dispersant injection equipment without being
                overly restrictive. The intent of the requirement is for immediate
                reporting of more than 10 percent deviations for the subsurface
                dispersant application that were authorized during that reporting
                period. EPA did not intend to require, and Sec. 300.913(e) does not
                establish, that authorization is required in 24-hour increments. The
                OSC makes authorization of use decisions within the NCP framework.
                Authorization of use is outside the scope of the monitoring
                requirements in this final action. While an environmental trade-off
                framework may inform dispersant use, it is not required under the NCP.
                Results from daily water column sampling provide input data to refine
                predictions of the likely dispersed oil direction using trajectory
                modeling and may also inform decisions to alter dispersant application
                in order to minimize effects on ecological receptors, including
                biological resources.
                 A commenter stated real-time ecological receptor analysis is
                unrealistic and should be part of a Consensus Ecological Risk
                Assessment (CERA)/NEBA process. Another commenter requested that any
                field observations of impacts to sensitive species be reported to the
                OSC and trustee agencies. The new monitoring requirements provide that
                the responsible party will characterize the ecological receptors (e.g.,
                aquatic species, wildlife, and/or other biological resources), their
                habitats, and exposure pathways that may be present in the discharge
                area. The Agency understands that some ecological receptors are likely
                to be impacted and is clarifying that the immediate reporting
                requirement focuses on ecological receptors of environmental
                importance, as well as any other ecological receptors as identified by
                the OSC or the natural resource trustees, including threatened or
                endangered species that may be exposed to dispersed oil based on
                trajectory modeling and the estimated acute toxicity level of concern.
                EPA recognizes that the OSC or the natural resource trustees may also
                want to include critical habitats as applicable within the immediate
                reporting requirements for ecological receptors. The NCP already
                provides an existing organizational structure that allows the natural
                resource trustees to relay any requests they have regarding the
                monitoring requirements and resulting information to the OSC. The
                Agency is revising the regulatory language in the final rule to reflect
                this clarification. This revision also addresses a commenter's request
                to recognize prey species which these receptors depend upon for food
                that may be impacted by the discharge or the response.
                 A commenter said the OSC should have discretion to determine the
                frequency of reporting and that the rule does not specify what happens
                if the reporting requirements are not met for any reason. The Agency
                recognizes that
                [[Page 40260]]
                the OSC may require other immediate notifications beyond those provided
                in the final rule and that the final rule provides a minimum set of
                immediate reporting criteria. Finally, the Agency notes that
                enforcement of regulatory provisions is outside the scope of the final
                rule. The final rule does not change any existing enforcement
                authorities.
                G. Daily Reporting
                 The new provisions require daily reporting by the responsible party
                to the OSC and to the RRT water sampling and data analyses collected in
                Sec. 300.913(b). These reports are to include: (1) For each
                application platform, the actual amount of dispersant used for each
                one-hour period, and the total amount of dispersant used for the
                previous 24-hour reporting period; (2) all collected data and analyses
                of those data within a time frame necessary to make operational
                decisions (e.g., within 24 hours of collection), including documented
                observations, photographs, video, and any other information related to
                dispersant use, unless an alternate time frame is authorized by the
                OSC; (3) for analyses that take more than 24 hours due to analytical
                methods, provide such data and results as available but no later than 5
                days after sample collection, unless an alternate time frame is
                authorized by the OSC; and (4) estimates of the daily transport of
                dispersed and non-dispersed oil and associated volatile petroleum
                hydrocarbons, and dispersants, using available technology as described
                in Sec. 300.913(c).
                 Section 300.913(f)(1) of the final rule was altered to provide
                clarity. The text ``For each application platform, the . . .'' was
                added prior to the draft language, to ensure that the reporting would
                be for each platform, instead of the response as a whole. The term
                ``application platform'' includes individual aircraft, vessels, and any
                other structures, devices, or other means that are used to apply
                dispersants. This section was also modified, replacing the term
                ``actual dispersant application rate for each one-hour period'' with
                ``the actual amount of dispersant used for each one-hour period''. This
                revision clarifies that the reported information must reflect the
                actual amount of dispersant applied each hour, rather than an hourly
                rate based on the total amount of dispersant applied averaged over a
                24-hour period. The requirement is intended to show hourly changes of
                the actual amount of dispersant used, which a calculated average hourly
                rate would not provide. This information will allow the OSC and RRT to
                better analyze if the application rates are at, below, or exceeding the
                authorized quantities, if dispersant use is per manufacturer's
                recommendations, and if the response actions are effective.
                 EPA is also revising the regulatory text in the final rule to
                reflect that Sec. 300.913(c) changed ``. . . best available technology
                . . .'' to ``. . . considering available technologies . . .'' which
                includes trajectory modeling. See the Oil Distribution Analyses
                discussion in this preamble. The Agency is also revising the final rule
                text to include RRT as recipients of the daily reporting information
                for similar reasons as described in Immediate Reporting discussion in
                this preamble.
                 Several commenters supported EPA's proposal to require daily
                reporting of sampling and data analyses within a time frame necessary
                for making sound operational decisions. However, a commenter stated
                that existing sampling and analytical methods might not provide
                complete or accurate information. They requested that EPA identify
                suggested methods or models that can accurately estimate the ``daily
                transport of dispersed and non-dispersed oil'' with sufficient accuracy
                to inform the coordination of monitoring activities.
                 EPA acknowledges a commenter's concern that existing sampling and
                analytical methods might not provide complete or accurate information.
                However, the Agency believes existing sampling and analytical methods
                continue to improve and generally serve their intended purpose for
                decision-making during a response. The Agency recognizes that there may
                be other sampling and analytical methods used to inform other aspects
                of the response as a result of the oil discharge, such as those used in
                injury assessment that are conducted to support the NRDA process.
                Results from daily water column sampling conducted by the responsible
                party would provide input data to refine predictions of the likely
                dispersed oil direction using trajectory modeling. The daily reporting
                provisions requires the responsible party to report the estimated daily
                transport of dispersed and non-dispersed oil, associated volatile
                petroleum hydrocarbons if applicable, and dispersants, considering
                available technologies as described in Sec. 300.913(c). The Agency is
                not including suggested methods or models to estimate the ``daily
                transport of dispersed and non-dispersed oil.'' Rather, the Agency is
                establishing a framework in which the responsible party must identify
                sampling and analytical methods within a DMQAPP that provides the OSC
                and pertinent response agencies context for the collected data. This
                approach allows sampling and analytical methods to continue to advance
                without the need to periodically modify regulatory text to reflect any
                such advances. Finally, for analyses that take more than 24 hours due
                to analytical methods, the Agency is clarifying that the responsible
                party report data and results if it becomes available prior to the 5-
                day period. Reporting results and data as soon as it becomes available
                avoids unnecessary delays in providing decision-makers, including
                relevant regulatory agencies, with timely information.
                 A commenter noted that the requirements for daily reporting of
                water sampling data in Sec. 300.913(f) should only apply to subsea
                dispersant injection and are not useful for dispersant decision-making.
                The commenter stated that daily sampling and testing is arbitrary,
                overly burdensome, and unnecessary, suggesting that OSCs should have
                discretion in the frequency of sampling after the initial efficacy
                tests. Additionally, this commenter stated that the five day turnaround
                is unrealistic, given that it can take several days for sample
                transport and analysis. This commenter cited the quantity of samples
                and backlogs that resulted from the Deepwater Horizon response.
                 EPA disagrees with the comment that stated daily reporting of water
                sampling data is not useful to dispersant decision-making, burdensome,
                or unrealistic given the experiences of the Deepwater Horizon oil
                spill. The final monitoring provisions require daily reporting of
                sampling and data analyses collected within the time frame necessary to
                make operational decisions unless an alternate time frame is authorized
                by the OSC. Additionally, a schedule is required for any data analyses
                that require time beyond 24 hours due to analytical methods; this
                schedule is not to exceed five days (i.e., 120 hours) unless authorized
                by the OSC. Timely sample analyses afford the OSC and other responders
                and decision makers with multiple relevant data that can be analyzed
                together to inform situational awareness of dispersant operations and
                adjust dispersant application as necessary. The Agency believes that a
                five-day window for analyses requiring additional time provides an
                adequate opportunity for the RP to arrange to conduct all requested
                analyses in a timely manner without being overly restrictive. The
                Agency believes the final rule provides flexibility for the OSC to
                provide an alternative time frame that is operationally relevant for
                [[Page 40261]]
                analyses that take more than 24 hours due to analytical methods.
                 The Agency disagrees that daily water sampling and testing is
                burdensome and therefore also disagrees that only the OSC should
                determine the sampling frequency after initial efficacy tests. The
                Agency believes monitoring dispersant use in the field informs the OSC
                and response support agencies on its overall effectiveness, including
                potential environmental effects and transport of dispersed oil. Daily
                reporting serves to ensure information is received in a timely manner.
                The final rule provides notification for a responsible party to
                identify what analytical resources will be needed ahead of time rather
                than wait until an incident occurs to do so. A responsible party can
                also arrange for a schedule to prepare, transport, process, and analyze
                samples as part of response planning. The Agency believes that the
                responsible party can identify analytical processing resources (e.g.,
                analytical laboratories) and arrange a sampling and processing schedule
                prior to any incident.
                 The Agency disagrees that daily reporting of water sampling data
                should apply only to subsurface dispersant injection. Daily reporting
                of sampling data and other relevant information equally serves to
                inform surface dispersant application. The daily reporting requirement
                for collected data and analyses is necessary to make operational
                decisions, including documented observations, photographs, video, and
                any other information related to dispersant use, unless an alternate
                time frame is authorized by the OSC. While the responsible party shall
                provide data and results within five days, the final action provides
                flexibility to establish an alternate time frame authorized by the OSC
                for analyses that take more than 24 hours due to analytical methods.
                 A commenter also suggested combining the Daily Reporting section
                with the Immediate Reporting section and included recommended language.
                EPA believes keeping these sections separate more clearly identifies
                the specific requirements within the two different time frames.
                 Another commenter stated that EPA should make plans to protect
                worker health and public health required in ACPs along with already
                required plans to protect wildlife and to require daily public
                notification of product use, location, and quantity. The Agency notes
                that the NCP requires compliance with applicable worker health and
                safety regulations, including OSHA, under 40 CFR 300.150. Amendments to
                worker health and safety requirements under 40 CFR 300.150 and to Area
                Contingency Planning requirements under 40 CFR 300.210(c) are outside
                the scope of this final action on monitoring requirements. The Agency
                refers readers to the Immediate Reporting discussion where similar
                comments are addressed relative to public notification of dispersant-
                related information for further analysis of this issue.
                VI. Overview of New Rule Citations
                 The Table below provides an overview of the new rule citations
                under 40 CFR part 300, subpart J, for a quick reference of the changes.
                New section, Sec. 300.913, Monitoring the Use of Dispersants, adds
                regulatory requirements for monitoring certain prolonged surface and
                subsurface use of dispersants.
                 Section 300.913 Distribution Table
                ------------------------------------------------------------------------
                
                ------------------------------------------------------------------------
                Sec. 300.913 Monitoring the Use of General Applicability.
                 Dispersants.
                Sec. 300.913(a)......................... Information on Dispersant
                 Application.
                Sec. 300.913(b)......................... Water Column Sampling.
                Sec. 300.913(c)......................... Oil Distribution Analyses.
                Sec. 300.913(d)......................... Ecological Characterization.
                Sec. 300.913(e)......................... Immediate Reporting.
                Sec. 300.913(f)......................... Daily Reporting.
                Sec. 300.913(g)......................... Immediate and Daily
                 Reporting to RRTs.
                ------------------------------------------------------------------------
                VII. Statutory and Executive Order Reviews
                 Additional information about these statutes and Executive Orders
                can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
                A. Executive Order 12866: Regulatory Planning and Review and Executive
                Order 13563: Improving Regulation and Regulatory Review
                 This action is a significant regulatory action that was submitted
                to the Office of Management and Budget (OMB) for review. This action
                raises novel legal or policy issues arising out of legal mandates, the
                President's priorities, or the principles set forth in the Executive
                Order. Any changes made in response to OMB recommendations have been
                documented in the docket for this action. In addition, EPA prepared an
                analysis of the potential costs and benefits associated with this
                action. This analysis, ``Regulatory Impact Analysis, National Oil and
                Hazardous Substances Pollution Contingency Plan; Subpart J Monitoring
                Requirements'', is available in the docket for this action.
                B. Paperwork Reduction Act (PRA)
                 The information collection requirements in this final action have
                been submitted for approval to the Office of Management and Budget
                (OMB) under the PRA. The Information Collection Request (ICR) document
                prepared by EPA has been assigned EPA ICR No. 2675.01 (OMB Control No.
                2050-NEW). A copy of the ICR is provided in the docket for this rule
                and it is briefly summarized here. The monitoring provisions of the
                final rule include documentation of information about dispersant
                application; water sampling, oil distribution, and ecological
                characterization analysis; and, immediate and daily reporting.
                 For this ICR, EPA has estimated an annualized cost for monitoring
                oil discharges for dispersants in the range of $32,000 to $3.0 million
                per year. This estimated range reflects the fact that costs can vary
                significantly depending upon the frequency, volume, duration, and
                location of oil discharges. EPA based its estimates on a range of oil
                discharge scenarios capturing different spill sources, volumes, and
                monitoring durations. The annual monitoring cost also reflects EPA's
                estimated applicable-discharge rate of 0.2 incidents per year, or one
                applicable discharge every five years, based on EPA's analysis of
                historical discharges.
                 EPA has carefully considered the burden imposed upon the regulated
                community by the regulations. EPA believes that the activities required
                are necessary and, to the extent possible, has attempted to minimize
                the burden imposed. The minimum requirements specified in the final
                rule are intended to ensure that, when needed, product use is properly
                monitored in the field so that the oil discharge response is performed
                in a manner protective of human health and the environment.
                 Respondents/affected entities: Oil discharge responsible parties.
                 Respondent's obligation to respond: Mandatory (40 CFR part 300,
                subpart J).
                 Estimated number of respondents: 0-1 per year.
                 Frequency of response: 0.2 time per year.
                 Total estimated cost: $32,000-$3,033,000 (per year for monitoring
                oil discharges).
                 An agency may not conduct or sponsor, and a person is not required
                to respond to, a collection of information unless it displays a
                currently valid OMB control number. The OMB control numbers for the
                EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
                approves this ICR, the Agency will announce that approval in the
                Federal
                [[Page 40262]]
                Register and publish a technical amendment to 40 CFR part 9 to display
                the OMB control number for the approved information collection
                activities contained in this final rule.
                C. Regulatory Flexibility Act (RFA)
                 I certify that this action will not have a significant economic
                impact on a substantial number of small entities under the RFA. In
                making this determination, the impact of concern is any significant
                adverse economic impact on small entities.
                 EPA conducted a small business analysis consistent with the
                Agency's 2006 small business guidance. The Agency's analysis indicates
                that 9,527 affected entities are small businesses in the following
                industries: Crude Petroleum Extraction, Natural Gas Extraction,
                Petroleum Refineries, Petroleum Bulk Stations and Terminals, Natural
                Gas Extraction, Petroleum and Petroleum Products Merchant Wholesalers
                (except Bulk Stations and Terminals), Petroleum and Petroleum Products
                Merchant Wholesalers (except Bulk Stations and Terminals), Deep Sea
                Freight Transportation, Coastal and Great Lakes Freight Transportation,
                and Pipeline Transportation of Crude Oil.
                 In conducting the small business analysis, the agency compared the
                incremental annualized compliance cost to the annual sales revenue for
                the smallest entities. The results indicate that if a small entity is
                responsible for a relatively large oil discharge, then the impact on
                that individual entity could be significant. However, there are
                important factors to consider when assessing the rule's overall effect
                on small businesses, including that historically, the RPs for
                applicable discharges are not very small entities, which constitute the
                vast majority of potential impacted entities in this analysis. In
                addition, the rarity of applicable discharges historically suggests
                that there will be only one entity affected by the rule (whether
                significantly or nonsignificantly) every five years, on average. For
                these reasons, EPA concludes that the final rule's requirements will
                not have a significant impact on a substantial number of small entities
                (SISNOSE). The small business analysis is available for review in the
                Regulatory Impact Analysis (RIA).
                D. Unfunded Mandates Reform Act
                 This action does not contain any unfunded mandate of $100 million
                or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
                significantly or uniquely affect small governments. This final rule
                imposes no new enforceable duty on any state, local, or tribal
                governments or the private sector.
                E. Executive Order 13132: Federalism
                 This action does not have federalism implications. It will not have
                substantial direct effects on the States, on the relationship between
                the national government and the States, or on the distribution of power
                and responsibilities among the various levels of government.
                F. Executive Order 13175: Consultation and Coordination With Indian
                Tribal Governments
                 EPA has concluded that this action may have tribal implications
                because all tribes can be affected by oil spills and the subsequent use
                of oil spill mitigating agents, such as dispersants and bioremediation
                agents. However, this action will neither impose substantial direct
                compliance costs on tribal governments, nor preempt Tribal law,
                similarly to the effect on states.
                 EPA consulted with tribal officials under EPA Policy on
                Consultation and Coordination with Indian Tribes early in the process
                of developing this regulation to enable them to have meaningful and
                timely input into its development. The NCP is the federal government's
                blueprint for responding to both oil spills and hazardous substance
                releases. Among other provisions, Subpart J of the NCP governs
                environmental monitoring of dispersants and other chemical agents to
                respond to oil spills in jurisdictional waters. Under the NCP, tribes
                are included in the definition of ``State'' found in 40 CFR 300.5
                except where specifically noted, and may participate as members of Area
                Committees, on RRTs, and on Tribal Emergency Response Commissions. See
                40 CFR 300.5.
                 EPA's government-to-government consultation period occurred from
                March 11, 2015, to March 26, 2015, when EPA headquarters held five
                teleconference consultation events that informed tribes of the possible
                changes to the regulation as it was proposed in the Federal Register.
                Representatives from 10 tribes, tribal associations and organizations
                participated. During these calls, senior EPA staff fielded questions
                about the rulemaking as well as recorded comments and feedback. Tribal
                leaders and/or their delegated representatives raised questions about
                the use of dispersants and ensuring habitat and resource protection
                when responding to oil spills in Indian Country. EPA considered the
                input from these consultation calls and coordination activities, in
                conjunction with public comments, in the final rule development.
                 In addition to consultation with tribes, EPA also conducted
                outreach to tribes over the two years before consultation. EPA staff
                participated in several tribal conferences and meetings where the
                proposed rulemaking was discussed, and information distributed to all
                participating tribes. Rulemaking outreach literature promoted awareness
                and coordination about the proposed regulation.
                 As required by section 7(a), EPA's Tribal Consultation Official has
                certified that the requirements of the executive order have been met in
                a meaningful and timely manner. A copy of the certification is included
                in the docket for this action.
                G. Executive Order 13045: Protection of Children From Environmental
                Health Risks and Safety Risks
                 EPA interprets Executive Order 13045 as applying only to those
                regulatory actions that concern environmental health or safety risks
                that EPA has reason to believe may disproportionately affect children,
                per the definition of ``covered regulatory action'' in section 2-202 of
                the Executive Order. This action is not subject to Executive Order
                13045 because it does not concern an environmental health risk or
                safety risk.
                H. Executive Order 13211: Actions That Significantly Affect Energy
                Supply, Distribution or Use
                 This action is not a ``significant energy action'' because it is
                not likely to have a significant adverse effect on the supply,
                distribution, or use of energy. The final rule focuses on monitoring
                requirements to address subsurface and certain surface applications of
                dispersants that meet applicability criteria specified by the final
                rule and minimizing potential adverse impacts from their use; thus, the
                rule will result in greater overall environmental protection. The final
                rule will not cause reductions in the supply or production of oil,
                fuel, coal, or electricity; nor will it result in increased energy
                prices, increased cost of energy distribution, or an increased
                dependence on foreign supplies of energy.
                I. National Technology Transfer and Advancement Act
                 This rulemaking does not involve technical standards.
                J. Executive Order 12898: Environmental Justice (EJ)
                 EPA believes that this action does not have disproportionately high
                and
                [[Page 40263]]
                adverse human health or environmental effects on minority populations,
                low-income populations, and/or indigenous peoples, as specified in
                Executive Order 12898 (59 FR 7629, February 16, 1994).
                 The documentation for this decision is contained in Regulatory
                Impact Analysis (RIA) for this action. This final rule is consistent
                with EPA's Environmental Justice Strategy and the Office of Land and
                Emergency Management (OLEM) Environmental Justice Action Agenda. To
                address the goals of the Strategy and the Agenda, EPA conducted a
                qualitative analysis of the environmental justice issues under this
                final rule.
                 Historically, EPA has not found any evidence that the use of
                dispersant agents on oil discharges in the United States has had any
                disproportionate effect on any environmental justice communities.
                Moreover, the final rule is anticipated to improve the efficacy of
                dispersant application activities through monitoring requirements and
                thereby mitigate what could otherwise occur as adverse impacts from
                potentially less effective dispersant use. EPA will monitor the
                implementation of the rule to ensure the monitoring of dispersant
                agents has no disproportionate effect on any EJ communities.
                K. Congressional Review Act (CRA)
                 This action is subject to the CRA, and the EPA will submit a rule
                report to each House of the Congress and to the Comptroller General of
                the United States. This action is not a ``major rule'' as defined by 5
                U.S.C. 804(2).
                List of Subjects in 40 CFR Part 300
                 Environmental protection, Area contingency planning, Chemical
                agents, Daily reporting, Dispersants, Hazardous Substances,
                Intergovernmental relations, Monitoring, Natural resources, Oil
                pollution, Oil spills, Oil spill mitigating devices, On-scene
                coordinator, Quality assurance, Regional response teams, Reporting and
                recordkeeping requirements, Responsible party.
                 Dated: July 6, 2021.
                Michael S. Regan,
                Administrator.
                 For the reasons set out in the preamble, the Environmental
                Protection Agency amends 40 CFR part 300 as follows:
                PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
                CONTINGENCY PLAN
                0
                1. The authority citation for part 300 continues to read as follows:
                 Authority: 33 U.S.C. 1251 et seq; 42 U.S.C. 9601-9657; E.O.
                13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR
                54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR,
                1987 Comp., p. 193.
                Subpart J--Use of Dispersants, and Other Chemicals
                0
                2. Add Sec. 300.913 to read as follows:
                Sec. 300.913 Monitoring the use of dispersants.
                 The responsible party shall monitor any subsurface use of
                dispersant in response to an oil discharge, any surface use of
                dispersant for more than 96 hours after initial application in response
                to an oil discharge, and any surface use of dispersant in response to
                oil discharges of more than 100,000 U.S. gallons occurring within a 24-
                hour period, and shall submit a Dispersant Monitoring Quality Assurance
                Project Plan (DMQAPP) covering the collection of environmental data
                within this section to the OSC. When any dispersant is used subsurface
                in response to an oil discharge, the responsible party shall implement
                paragraphs (a) through (g) of this section for the entire duration of
                the subsurface dispersant use. When any dispersant is used on the
                surface in response to oil discharges of greater than 100,000 U.S.
                gallons occurring within a 24-hour period, the responsible party shall
                implement paragraphs (a) through (g) of this section as soon as
                possible for the entire or remaining duration of surface dispersant
                use, as applicable. When any dispersant is used on the surface in
                response to an oil discharge for more than 96 hours after initial
                application, the responsible party shall implement paragraphs (a)
                through (g) of this section for the remaining duration of surface
                dispersant use.
                 (a) Document:
                 (1) The characteristics of the source oil.
                 (2) The best estimate of the oil discharge volume or flow rate,
                periodically reevaluated as conditions dictate, including a description
                of the method, associated uncertainties, and materials.
                 (3) The dispersant used, rationale for dispersant choice(s)
                including the results of any efficacy and toxicity tests specific to
                area or site conditions, recommended dispersant-to-oil ratio (DOR).
                 (4) The application method(s) and procedures, including a
                description of the equipment to be used, hourly application rates,
                capacities, and total amount of dispersant.
                 (5) For subsurface discharges, the best estimate of the discharge
                flow rate of any associated volatile petroleum hydrocarbons,
                periodically reevaluated as conditions dictate, including a description
                of the method, associated uncertainties, and materials.
                 (b) Collect a representative set of ambient background water column
                samples in areas not affected by the discharge of oil, at the closest
                safe distance from the discharge as determined by the OSC, and in all
                directions of likely oil transport considering surface and subsurface
                currents. Collect a representative set of baseline water column samples
                absent dispersant application at such depths and locations affected by
                the oil discharge, considering surface and subsurface currents, oil
                properties, and other relevant discharge conditions. On a daily basis,
                collect dispersed oil plume water column samples at such depths and
                locations where dispersed oil is likely to be present, considering
                surface and subsurface currents, oil properties, and other relevant
                discharge conditions. Collect these ambient background, baseline, and
                dispersed oil plume water column samples following standard operating
                and quality assurance procedures. Analyze the collected ambient
                background, baseline, and dispersed oil plume water column samples for:
                 (1) In-situ oil droplet size distribution, including mass or volume
                mean diameter for droplet sizes ranging from 2.5 to 2,000 [mu]m, with
                the majority of data collected between the 2.5 and 100 [mu]m size.
                 (2) In-situ fluorometry and fluorescence signatures targeted to the
                type of oil discharged and referenced against the source oil.
                 (3) Dissolved oxygen (DO) (subsurface only).
                 (4) Total petroleum hydrocarbons, individual resolvable
                constituents including volatile organic compounds, aliphatic
                hydrocarbons, monocyclic, polycyclic, and other aromatic hydrocarbons
                including alkylated homologs, and hopane and sterane biomarker
                compounds.
                 (5) Methane, if present (subsurface only).
                 (6) Heavy metals, including nickel and vanadium.
                 (7) Turbidity.
                 (8) Water temperature.
                 (9) pH.
                 (10) Conductivity.
                 (c) Considering available technologies, characterize the dispersant
                effectiveness and oil distribution including trajectory, accounting for
                the condition of oil, dispersant, and dispersed oil components from the
                discharge location, and describing associated uncertainties.
                [[Page 40264]]
                 (d) Characterize the ecological receptors (e.g., aquatic species,
                wildlife, and/or other biological resources) and their habitats that
                may be present in the discharge area and their exposure pathways. The
                characterization shall include, but is not limited to, those species
                that may be in sensitive life stages, transient or migratory species,
                breeding or breeding-related activities (e.g., embryo and larvae
                development), and threatened and/or endangered species that may be
                exposed to the oil that is not dispersed, the dispersed oil, and the
                dispersant alone. The responsible party shall also estimate an acute
                toxicity level of concern for the dispersed oil using available dose-
                response information relevant to potentially exposed species following
                a species sensitivity distribution.
                 (e) Immediately report to the OSC any:
                 (1) Deviation of more than 10 percent from the mean hourly
                dispersant use rate for subsurface application, based on the dispersant
                volume authorized for 24 hours use, and the reason for the deviation.
                 (2) Ecological receptors of environmental importance, and any other
                ecological receptors as identified by the OSC or the Natural Resource
                Trustees, including any threatened or endangered species that may be
                exposed based on dispersed plume trajectory modeling and level of
                concern information.
                 (f) Report daily to the OSC water sampling and data analyses
                collected in paragraph (b) of this section and include:
                 (1) For each application platform, the actual amount of dispersant
                used for each one-hour period and the total amount of dispersant used
                for the previous 24-hour reporting period.
                 (2) All collected data and analyses of those data within a time
                frame necessary to make operational decisions (e.g., within 24 hours of
                collection), including documented observations, photographs, video, and
                any other information related to dispersant use, unless an alternate
                time frame is authorized by the OSC.
                 (3) For analyses that take more than 24 hours due to analytical
                methods, provide such data and results as available but no later than
                five days, unless an alternate time frame is authorized by the OSC.
                 (4) Estimates of the daily transport of dispersed oil, non-
                dispersed oil, the associated volatile petroleum hydrocarbons, and
                dispersants, using available technology as described in paragraph (c)
                of this section.
                 (g) Report all information provided to the OSC under paragraphs (e)
                and (f) of this section to the applicable RRT(s).
                [FR Doc. 2021-15122 Filed 7-26-21; 8:45 am]
                BILLING CODE 6560-50-P
                

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