National Oil and Hazardous Substances Pollution Contingency Plan; Monitoring Requirements for Use of Dispersants and Other Chemicals
| Published date | 27 July 2021 |
| Citation | 86 FR 40234 |
| Record Number | 2021-15122 |
| Section | Rules and Regulations |
| Court | Environmental Protection Agency |
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]]
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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.
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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
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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
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II. Entities Potentially Affected by This Proposed Rule
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NAICS code Industrial category
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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.
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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.
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\1\ See 33 U.S.C. 1321(c); See also 40 CFR 300.120, 40 CFR
300.305.
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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.
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\2\ Walters, C. (2021). Petroleum. In Kirk-Othmer Encyclopedia
of Chemical Technology, (Ed.). https://doi.org/10.1002/0471238961.1518090702011811.a01.pub3.
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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
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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
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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
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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
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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
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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
