ALERT FINAL NCP Rules 150422

April 22, 2015

EPA Docket Center (EPA/DC)

Docket ID No. EPA–HQ–OPA–2006–0090

1200 Pennsylvania Avenue NW

Washington, DC 20460

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110 and 300

[EPA–HQ–OPA–2006–0090; FRL–9689–9– OSWER]

RIN 2050–AE87

National Oil and Hazardous Substances Pollution Contingency Plan

Dear Administrator McCarthy,

Thank you for this opportunity to comment on the proposed revisions to the National Oil

and Hazardous Substances Pollution Contingency Plan (NCP) codified in 40 CFR Parts

110 and 300 governing use of dispersants and other chemical and biological agents

during oil spill response.

These comments are submitted on behalf of ALERT, A Locally Empowered Response

Team and a project of Earth Island Institute, and the ad hoc Citizens’ Coalition to Ban

Toxic Dispersants (“Coalition”). Dr. Riki Ott, the principal signatory and drafter of these

comments, is acutely aware of the importance of the issues addressed by the NCP and

is one of the driving forces behind this rulemaking. She filed a petition for rulemaking

dated November 14, 2012 on her own behalf and on behalf Ultimate Civics (ALERT’s

predecessor) and the ad hoc Coalition (Attachment #1). Lawrence M. Stanton, Director

of the EPA’s Office of Emergency Management responded to the petition on January 3,

2013 and indicated that EPA would be engaging in a future rulemaking to address the

concerns raised in the petition. Seeing no action, Dr. Ott filed a supplemental petition for

rulemaking in June 2014 on her own behalf and on behalf Ultimate Civics and the

Coalition (Attachment #2). She currently directs ALERT, which she founded in August

2014.

ALERT and the ad hoc Coalition (henceforth “we”) appreciate the spirit guiding the

revisions to Subparts A and J and Appendix C to Part 300 of the NCP. However, we find

the revisions only partially address concerns raised in our November 2012 petition for

rulemaking and the June 2014 petition supplement. The proposed rules also raise new

concerns.

Our coalition includes many people with first hand experience of oil disasters, as

responders, community members, scientific advisors, and legal counsel. Because of our

diversity, our concerns extend beyond lessons learned from maritime oil spills, like the

Exxon Valdez and BP Deepwater Horizon (DWH) disasters, to concerns raised by the

more recent fresh water spills of tar sands oil, Bakken shale oil, and ethanol. While some

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of our concerns specific to spills of Unconventional Oil and Gas were partially or

completely addressed by this rulemaking, other concerns were not.

Therefore, we offer both our comments and recommendations for this current proposal

and our suggestions for future rulemakings. We present first an overview of our

comments for this current proposal, followed by specific comments, if any, for each

paragraph of each section.

OVERVIEW OF OUR COMMENTS FOR THE CURRENT PROPOSAL

The framework for our comments consists of five main themes, which are addressed or

referred to repeatedly throughout our comments.

First, we find that EPA has made a critical attempt to clarify its duties under the Clean

Water Act to prepare a Schedule identifying chemical and biological agents, and other

spill mitigating devices and substances that may be used in carrying out the NCP; to

identify in the Schedule the waters in which such products may be used; and to identify

the quantities of such products that can be used safely. 33 U.S.C. § 1321(d)(2)(G).

Inclusion of the third duty, in writing, is missing from the proposed rule yet this duty is

what tethers the Schedule and everything in it to a solid legal foundation and to sound

science and public health principles.

The government has a fiduciary duty to protect public health, public trust resources that

support health and wellbeing of present and future generations, and public access to our

collective public assets. In essence, this means that federal, state, and local

governments are trustees, charged with managing trust assets on behalf of the citizens

who are trust beneficiaries. It also means that the government – all levels and all

branches – is responsible for creating, implementing, and enforcing laws and policies to

protect trust assets by holding polluters who despoil trust assets accountable to the laws

and policies.

This is especially relevant during responses to discharges or releases of oil and

hazardous substances because the despoiler – the spiller – is duty-bound to its

shareholders to minimize its liability, which often comes at the expense of human safety

and health and the environment. The fiduciary duties of government to protect public

assets during spill response conflict with the fiduciary duties of the spiller to protect its

private assets. Therefore, it is critical that public trustees in government recognize this

inherent conflict of public versus private interests and establish, implement, and enforce

regulations that protect public health and welfare and the environment.

The current laws and regulations are weak, in that they do not recognize the toxic and

hazardous nature of crude oil; nor do they recognize the potential harm from products

alone or in combination with oil. By not recognizing the hazardous nature of oil spills and

Wood, Mary Christina, 2014, Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge

University Press, 2014), p. 207.

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the response activities necessitated by them, nearly all of the risk to the public and its

assets and resources falls on society to bear. The risks manifest to individuals as

debilitating health issues, as devalued or destroyed homes, and as lost livelihoods,

among other things. The risks manifest to society as health and reproductive issues that

damage our unborn and young, as loss of productivity from chronically sick adults, as

undrinkable or contaminated fresh water, and as degraded ecosystems incapable of

supporting diverse and thriving life, among other things.

In our comments to the proposed rulemaking, we advocate rules that force the spiller to

internalize more of the inherent risk of using dispersants and other chemical and

biological products, rather than rules that continue to allow the spiller – and the oil and

gas industries more broadly – to externalize these risks to society and the environment.

We need rules that specify how products can be used safely in waters of the U.S.

Second, we find that EPA has attempted a comprehensive overhaul of Subpart J – Use

of Dispersants and Other Chemical and Biological Agents, as well as certain definitions

in Subpart A. However, this overhaul is incomplete in that it fails to address two critical

issues: (1) the impossibility of handling Unconventional Oil and Gas (UOG) with

response tools designed for conventional oil; and (2) the toxic nature of oil.

Regarding UOG, since inception the NCP has focused on maritime spills of conventional

oil, mechanical containment and recovery of oil that floats, and chemical dispersants to

allegedly mitigate harmful effects of oil. However, we are now dealing, increasingly, with

UOG – e.g., tar sands oil that sinks and light oil that explodes and dissolves toxic

components to significant levels readily in water. As recently as last September, industry

and government convened a conference in Detroit, Michigan, to focus on “the challenges

posed by these types of oils.”

In other words, the industry and government are seeking

answers: They do not know how to contain and remove oil that sinks after it spills. The

Enbridge tar sands spill near Kalamazoo, Michigan, is the most costly per gallon spill

response to-date, largely because of unknowns.

The price tag for explosions and spills

of volatile shale oil promises to be much higher for large-scale Lac Megantic-type

disasters in urban areas. Spills of UOG in fresh water call into question the wisdom of

shipping these oils – at all – until the operators devise viable oil spill contingency

response plans.

Then there is the issue that dispersants do not work in fresh water, yet little attention has

been given to assess and screen products that might. The proposed rulemaking provides

little in the way of spill prevention and response planning for UOG. For example, EPA

http://www.spillcontrol.org/isco-what-s-new/276-press-release-international-forum-on-group-v-

non-buoyant-oils

Linnitt, Carol, 2013, Official price of the Enbridge Kalamazoo spill, a whopping $1,039,000,000,

DeSmogBlog, Aug 26, 2013. http://desmog.ca/2013/08/26/official-price-enbridge-kalamazoo-

spill-whopping-1-039-000-000

Nikiforuk, Andrew, 2013, Michigan’s mysterious tar-like rocks, The Tyee, Dec 16,

2013. http://www.thetyee.ca/News/2013/12/16/Michigan-Tar-Rocks/

Nikiforuk, Andrew, 2013, Mystery of Michigan tar rocks solved? The Tyee, Dec 16,

2013. http://thetyee.ca/News/2013/12/17/Michigan-Tar-Rocks/

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has proposed changes in one of the two standard reference test oils from a light to a

much heavier weight – although still conventional – crude. EPA has also added new

screening requirements and limitations for use for all chemical and biological agents, not

just dispersants. These changes signal that EPA is now anticipating spills of heavier oils

and use of chemical and biological agents in fresh water as well as saltwater. However, if

EPA is planning to allow products to be used on spills of UOG, then the rules need to

require screening for and monitoring of products for specifically these types of oils.

Oil enjoys special legal and regulatory treatment borne out of political compromise,

rather than scientific understanding of the toxicity of oil and oil wastes. The last revisions

to NCP regulations were in 1994 and reflect the political reality instead of sound science.

Moreover, the 1994 NCP amendments were adopted about a decade before completion

and publication of the extensive ecosystem monitoring studies conducted in the wake of

the Exxon Valdez Oil Spill (EVOS). This means that the current regulations do not take

into account the post-EVOS findings that crude oil is 1,000 times more toxic than thought

in the 1970s when the Clean Water Act was amended and the Resource Conservation

and Recovery Act enacted. Any revisions to the NCP and Subpart J will fail to

adequately protect public health and the environment because oil and oil waste

continues to be under-regulated.

However, this rulemaking largely focuses on lessons learned from the BP DWH disaster;

i.e., that dispersants (and potentially other products) alone or in combination with oil may

do more harm rather than mitigate harm. While this is important – and has been ignored

since the inception of the NCP, we need this rulemaking to also recognize and define

conventional crude oil as having the same characteristics of a hazardous substance for

purposes of Subpart J.

This is especially critical given the recent, rapid expansion of UOG activities across the

nation and the increased frequency of UOG spills in fresh water bodies. Heavy, viscous

tar sands crude contains significant amounts of Polycyclic Aromatic Hydrocarbons

(PAHs) that are now known to cause long-term health problems in humans and wildlife

(as we discuss in detail elsewhere). Light, volatile Bakken shale and other crude oils

produced by the recent hydrologic fracturing activities are concentrated in the Volatile

Organic Compounds (VOCs) known to cause health problems in living organisms,

including humans. Failure to address and update the definition of oil in the context of oil

spill response and the methods to respond will lead to inadequate plans and no

preparation to minimize the risk of exposure to workers and the public during spill

response. Given the anticipated increases in UOG transportation via rail and pipeline, we

need rules that address how to protect populations at-risk from these activities in remote

and populated urban areas.

Third, we find a trend towards increased use of in-situ burning, dispersants, other

chemical and biological agents, and other mitigating devices and substances rather than

a focus on containment and removal of oil as the primary line of defense in spill planning

Lowy, Joan, 2014, Pipeline oversight called inadequate, Associated Press, 5/9/14.

http://bigstory.ap.org/article/federal-watchdog-pipeline-safety-oversight-shoddy

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and response. This also is a sea change in system thinking. While EPA has attempted to

curb use of some of the most dangerous and hazardous substances, we still find too

much margin for error and abuse in the proposed rules. In particular, we are alarmed by

the proposed definition of “sinking agents” as it will allow use of agents and substances

that act to increase formation of oily plumes within a water body and/or sedimentation

and deposition of oil to the bottom of a water body – while still maintaining the illusion

that sinking agents are prohibited.

We cannot support rules that allow products to sink or submerge oil or facilitate such

action. We cannot support rules that allow use of dangerous products or substances,

which pretend to mitigate the threat of oil, but in reality do more harm than good. We

want proof – proof before use – that the product will not harm people and the

environment; proof through real-time monitoring while the product is being used that it is

working as intended; and proof through long-term monitoring in ecosystem time (at least

10 years) that the product significantly benefitted the ecosystem, especially the

organisms at the base of the food web that support aquatic life such as bacteria,

plankton, and forage fish. And finally, we cannot support rules that allow use of

dangerous products that harm our health and our children’s health or the health of our

workers, that diminish our quality of life, or that shorten our lives in the name of a human

health risk tradeoff,

as a consequence of allegedly mitigating harm from the oil.

Fourth, we find that EPA continues to promulgate rules that fail to fulfill its legal

mandates to engage local citizens and Tribes (federally-recognized and unrecognized) in

oil spill prevention and response planning. The Clean Water Act Amendments in 1972

called for three levels of organization: national, state/regional, and local/area, but local

organization lagged. The Oil Pollution Act of 1990 attempted to remedy this by

specifically establishing Area Committees composed of local government agencies and

others and requiring them to coordinate with Citizens’ Advisory Councils (in Alaska) and

Local Emergency Planning Committees to develop Area Contingency Plans under the

guidance of the OSC. The intent was to have the people most familiar with the area

establish protection priorities regarding product use during a response.

Instead EPA keeps missing the mark. The current rules pre-empt local authority by

consolidating regional and area contingency plans, despite their different functions

created by statute. EPA proposes to further erode local authority and meaningful local

participation by instead authorizing state agencies with Regional Response Teams to

develop preauthorization plans, which function to circumvent agency participation in

decision-making through the concurrence and consultation process. We have learned

that involving citizens in the process of preparing, adopting, and revising Area

Contingency Plans helps prevent the government-industry complacency that leads to oil

spills. It’s such an important lesson that Congress wrote it down and made it law. We

Coastal Response Research Center (CRRC), Research Planning Incorporated, and the National

Oceanic and Atmospheric Administration, The Future of Dispersant Use in Oil Spill Response

Initiative, March 2012, on p. 36.

https://crrc.unh.edu/sites/crrc.unh.edu/files/media/docs/Workshops/dispersant_future_11/Dispersant_

Initiative_FINALREPORT.pdf

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advocate rules that fulfill the statutory promise of putting local people in charge of

developing Area Contingency Plans.

Fifth, we are concerned about the intent and spirit of this rulemaking. When the political

will is at cross-purposes with scientific evidence, public health and environmental health

are compromised or ignored. We hope this rulemaking is not just a political exercise for

an outcome that has already been predetermined.

The basis for our concern is found in the 2012 Dispersant Initiative Report, a document

intended to guide research and decision-making for dispersant use in the 21

century.

Specifically, the risk communication workshop makes it very clear that the negative

consequences of dispersant use will not be communicated to the public and, further, that

there will be active attempts to use the full power of the federal government’s public

relations efforts to quash information about potential harm to the public and the

environment from dispersant use. To wit:

“There were multiple efforts to inform the public about the necessity to use

dispersants during the response to the [BP] DWH spill. The Public Affairs and

Liaison Units in conjunction with the Environmental Unit (EU) prepared numerous

press releases, public information brochures, posters, talking points, graphics,

and statements. The objective of these activities were to inform the media and

general public on the reasons dispersants were being used, the rationale behind

the decisions, the efforts to monitor the applications, and the successes that

were achieved.

“From the vantage point of the command post, it appeared that the messages

were being received in the fashion that they were intended. Early in the incident

several people came from Alaska to talk with the fishing communities about their

experiences during the Exxon Valdez spill, in the interest of helping Gulf

communities prepare for what to expect. An important assumption was made

prematurely that the two spills, and therefore the effects, were very similar and

that the Gulf experience would closely parallel the Alaska experience. Some

significant differences in the two spills were not acknowledged (e.g., locale,

environment, oil, etc.). As a result of these interactions, some people in the

community, including fishermen, developed negative sentiments toward

dispersant applications or the addition of “chemicals.” The Alaskan visitors to the

Gulf spoke of people getting ill and fish dying. The Unified Command staff in the

command post was not pro-active enough to get ahead of the negative stories

being promulgated. The media took the sensationalism of the 20- year-old Exxon

Valdez saga and retold them to larger audiences. Many examples of the

ecological and social consequences of the Exxon Valdez spill were supported by

peer reviewed journal articles and research funded by recognized agencies such

as the National Science Foundation (Rice. 2009; Picou. 2009). However,

combined with claims of health impacts, the resulting media accounts led to a

confusing assortment of information that resulted in a “media scare” and

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increased anxiety for residents along the Gulf of Mexico.”

From the vantage point of the communities at risk, the information shared by the Alaska

visitors – Exxon Valdez survivors and the primary author of these comments – was

informed by experience and science.

People in the Gulf coast communities weighed the

information received from the Exxon Valdez survivors against the information received

from the FOSC. The Alaskan intel was found to more closely match the reality of what

people were consistently experiencing and what the media was seeing and hearing. It

was accepted as credible. People along the Gulf coast did get sick, fish and a lot of other

wildlife did die, and the killing did not stop after the well was capped. Further as

forewarned, there are long-term spill-related harms to people’s health, community health,

and the environment,

dispersants did make it worse (as discussed elsewhere), and the

end is not in sight – just like what happened after the Exxon Valdez spill.

Perhaps the best way to “communicate risk” is to tell the truth, the whole truth including

the negative consequences, the failures as well as the successes. The truth has ways of

getting out. Exxon Valdez survivors are no longer alone. Survivors of the BP DWH

disaster, survivors of the tar sand spills in Kalamazoo, Michigan, and Mayflower,

Arkansas, and survivors of other spills now visit communities in other areas where oil

has spilled – and where oil activities are planned – to share their stories about sick

people, dying wildlife, community upheaval, industry spin, and government “risk

communication.” We are proactive, and we are laying the groundwork of our truth before

the next spill even happens. We have yet to see an oil-spill clean up that wasn’t more of

a cover up. We have yet to see the government or spiller make it right after one of these

horrific man-made disasters.

Within the context of this five-fold framework, we provide our specific comments and

recommendations. We expressly request that the documents incorporated by reference

in these comments and made part of these comments be specifically included in the

administrative record for Docket ID No. EPA–HQ–OPA–2006–0090. Please note that a

photo gallery is included as Attachment #3

We offer our comments in the spirit of fair play and open-mindedness, in the spirit that

our government will listen to us, not pre-empt us. We ask for decisions based on solid

science – or, in situations of scientific uncertainty, on the weight of evidence and the

CRRC, Dispersant Initiative Report, on p. 40.

Peterson, Charles, et al., “Long-term Ecosystem Responses to the Exxon Valdez Oil Spill,” 2003;

302:2082–2086.

Ott, Riki, 2004, Sound Truth and Corporate Myths: The Legacy of the Exxon Valdez Oil Spill (Dragonfly

Sisters Press, Cordova, AK).

Ott, Riki, 2008, Not One Drop: Promises, Betrayal, and Courage in the Wake of the Exxon Valdez Oil Spill

(Chelsea Green Publishing, White River Junction, VT).

Macumba International and Perception Cinema (producers), 2008, Black Wave: The Legacy of the Exxon

Valdez Oil Spill. Feature film, 99 min.

Jamail, Dahr, “BP’s ‘widespread human health crisis’, Aljazeera English, Oct. 27, 2013.

http://www.aljazeera.com/indepth/features/2013/10/bp-widespread-human-health-crisis-

2013102717831227732.html

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precautionary principle. We call on the EPA to be honest about the negative

consequences of so-called mitigating agents and substances and to only allow those that

have true potential to do no more harm.

Hear us. We are the ones who live with or die from the consequences of your decisions.

SIGNATORIES

Riki Ott, PhD, Marine Toxicologist

Seattle, Washington

ALERT Project, a project of Earth Island Institute

Riki Ott, Director

Bayfield, CO

Citizens’ Coalition to Ban Toxic Dispersants

Rosemary Ahtuangaruak

Inupiat Barrow resident, mother, and grandmother

Member of Native Village of Barrow and Inupiat Community of the Arctic Slope

Former Mayor of Nuiqsut, member of Native Village of Nuiqsut

Community Health Aide and Physician Assistant of the North Slope

Current Federal Subsistence Regional Advisory Council co-chair

National Tribal Environmental Health think tank member

National Chemical Toxins working group member

Kindra Arneson

Venice, LA

Michelle and Tracy BarlondSmith

Jackson, MI

Dean Blanchard

Grand Isle, LA

Christine Breault, J.D. Esq.

New Orleans, LA

Susan Connolly

Marshall, MI

Suzanne and Scott Cunningham

Salt Lake City, UT

Betty Doud

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Gulf of Mexico resident and grandmother

Carey Dupuis

Board member, La Semilla

Lois Epstein

Anchorage, AK

Ali Huntington

New Orleans, LA

Samantha B. Joye, PhD, Marine Scientist

Athens, GA

Gulf Coast Environmental and Health Coalition

Linda Leavitt, Executive Director

Bryan Hopkins

Producer, Dirty Energy

Ira Leifer, PhD Marine Scientist

Santa Barbara, CA

Collette Pinchon-Battle

New Orleans, LA

Linda Phillips

Santa Barbara, CA

Chris Wilson

Austin, TX

28 Stones Project

Cherri Foytlin, Gulf Coast Advocate

Alaska Inter-Tribal Council

Delice Calcote, Executive Director

Suna’q Tribe of Kodiak Tribal Member

Alaska’s Big Village Network

Carl Wassilie

Yupi’aq Biologist

Campaign to Safeguard America’s Waters, a project of Earth Island Institute

Gershon Cohen, PhD

Haines, AK

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Center for Water Advocacy

Nikos Pastos, Human Rights Coordinator

Anchorage, AK

First Unitarian Universalist Church of New Orleans

Robert Desmarais Sullivan

Social Justice Team Moderator

Frack Free Illinois

Lora Chamberlain, MD

Chicago, IL

Hands across the Sand

Dede Shelton, Director of Operations

Boise, ID

Marine Environmental Research Institute

Susan Shaw, Dr. of Public Health, President and CEO

Professor, Environmental Health Sciences, School of Public Health, SUNY

Albany, NY

Michigan/Indiana Coalition Against Tar Sands––MI CATS

Vicci Hamlin

Ocean Conservation Research

Michael Stocker, Director

Our Children's Trust

Julia Olson, Executive Director

Eugene, OR

Shawnee Sentinels

Tabitha Tripp, spokesperson

Illinois

Sustainable Energy and Economic Development (SEED) Coalition

Karen Hadden

Austin, TX

Tar Sands Free Midwest

Debra Michaud

Chicago, IL

The Ocean Foundation

Richard Charter, Senior Fellow

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Coastal Coordination Program

The Safina Center, formerly Blue Ocean Institute

Carl Safina, PhD

Stony Brook University, NY

ENDORSERS

Benjamin Eovaldi, MD, Osteopathic Physician

Robert Eovaldi

Lompac, Co

Gail Osherenko, PhD, Marine Scientist

Santa Barbara, CA

Alaska Community Action on Toxics

Pam Miller, Executive director

Anchorage, AK

California Metal Photo

Lompoc, CA

Center for Effective Government

Sean Moulton, Director, Open Government Policy

Washington, DC

Central Oklahoma Clean Water Coalition

Casey Holcomb

Oklahoma City, OK

Cook Inletkeeper

Bob Shavelson, Executive Director

Homer, AK

Earth Guardians

Tamara Roske

Grand Riverkeeper

Oklahoma/LEAD Agency

Earl Hatley

Venita, OK

Louisiana Shrimp Association

Clint Guidry

Jean Lafitte, LA

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Mobile Bay Sierra Club

Joseph Mahoney, Chair

RESTORE – Restore Explicit Symmetry To Our Ravaged Earth

Michael Tritico

Stop Fracking Payne County

Angela Spotts

Stillwater, OK

Sylvia Earle Alliance / Mission Blue

San Francisco, CA

Wholly H2O, a project of Earth Island Institute

Elizabeth Dougherty, PhD

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I. PHOTO GALLERY

II. SPECIFIC COMMENTS ON CURRENT PROPOSAL

Subpart A––Introduction

§300.5 Definitions

Subpart J––Use of Chemical and Biological Agents

§300.900 General

§300.905 (deleted) NCP Product Schedule

§300.910 Authorization of Agent Use

§300.913 Monitoring the Use of Dispersants

§300.915 Data and Information Requirements for Product Schedule Listing

§300.950 Submission of Confidential Business Information

§300.955 Addition of a Product to the Schedule

§300.970 Removal of a Product from the Schedule

Appendix C to Part 300

III. SUGGESTIONS FOR FUTURE RULEMAKING

IV. EXHIBITS

1. Tierney, Michael, 2013, Sovereign Cooperation: The Makah Tribe’s Office of

Marine Affairs and the fundamentals of partnering with Uncle Sam, Boston

College Law School, paper for Environmental Law class with Prof. Zygmunt

Plater, Nov 2013.

2. Makah Usual & Accustomed Marine Area MAP

3. Wunstell, John, LaFourche Parrish, LA, Affidavit, May 29, 2010, as provided to

Riki Ott

4. Unified Command Risk Communication: Corexit Comparison Chart as provided by

Susan Felico Price to Riki Ott

V. HISTORIC DOCUMENTS (Attachments)

1. Original petition for rulemaking filed by Riki Ott, Ultimate Civics, and the Citizens’

Coalition to Ban Toxic Dispersants

2. Supplemental petition – Cover letter (Part 1), filed by Riki Ott, Ultimate Civics, and

the Citizens’ Coalition to Ban Toxic Dispersants

3. Supplemental petition – Proposed policy revisions (Part 2), filed by Riki Ott,

Ultimate Civics, and the Citizens’ Coalition to Ban Toxic Dispersants

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I. PHOTO GALLERY

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II. SPECIFIC COMMENTS ON CURRENT PROPOSAL

SUBPART A –– INTRODUCTION

§300.5 Definitions

a) Justification for recommendations on revised and new definitions

GENERAL COMMENTS CONCERNING ALL CHEMICAL AND BIOLOGICAL AGENTS

AND SUBSTANCES

We are concerned that some agents and substances, designed to mitigate deleterious

effects of oil, may also harm people or the environment when combined with oil. While

some of this harm may be unanticipated, this is certainly not the case for products that

are regulated under the NCP as hazardous substances when spilled alone, or that

should be regulated as such but were exempted by Congressional action, or that contain

known or suspected human health hazards. We do not support use of dangerous

substances that turn oil spills into chemical spills. To alleviate our concern, we propose

to add clear language to the definition for each agent and substance that said entity is

not likely to cause additional harm, either alone or in combination with oil, to public health

or welfare or to the environment.

Finally, in keeping with EPA’s proposed rule for recovery of oil and certain agents and

substances from the environment, we propose to add clear language that products either

are, or are not, intended to be collected and recovered from the environment.

SPECIFIC COMMENTS

Bioaccumulation v. Bioconcentration: We support use of both of these terms, as they

are not interchangeable. The more generic bioaccumulation is applicable to

environmental exposures to pollutants. Bioconcentration, when measured under

controlled laboratory conditions, may help predict a pollutant’s behavior in the

environment.

Biodegradation and Bioremediation: We find these definitions are overly simplistic.

We suggest expanding them to include the possibility that partial biodegradation or

partial bioremediation, such as is likely to occur in the environment versus controlled

laboratory conditions, can result in more toxic intermediate products.

Bioremediation agents: We request that EPA add language to the definition of

bioremediation agents set forth in our general comments to §300.5(a).

We support the inclusion of fungi in the definitions of biological agents and the use of

mycoremediation.

Fungi have been found to be effective at degrading the complex

Stamets, Paul, 2010, Paul Stamet’s statement on mycoremediation and its application to oil spills.

http://www.fungi.com/blog/items/the-petroleum-problem.html

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PAHs.

This may be an important tool for tar sands oil spills in fresh water.

Burning agents: We request that “ignition or other devices holding those substances”

be left out of this definition – or at a minimum, that ignition devices be subjected to the

same prohibitions as other agents and substances.

Also, we are alarmed by EPA’s insistence that inorganic gelling agents and “organic” fuel

meet the proposed definition to improve combustibility. EPA states the gel-carrier agents

– gasoline, jet fuel, or a diesel/gas mixture – are “organic compounds.” We maintain

these are not by any stretch of imagination “organic.” Gasoline, jet fuel, and diesel/gas

mixtures are refined petroleum products that are exempt as hazardous substances under

CERCLA. 42 U.S.C. §9601(14)(F). Spills of these refined petroleum products are

regulated under the NCP.

Permitting intentional releases of fuel oil on heavier oil to make the originally spilled oil

burn better has huge ramifications for the industry and the public. Creating another

product stream for fossil fuels or fossil fuel waste by-products is counterproductive to the

goal of reducing our carbon footprint. It undermines EPA’s goal of cleaner, greener

products for spill response. It increases worker and public exposure to these toxic

substances and concentrated VOCs during transportation, storage, staging, and spilling.

In the Arctic in particular, it raises the specter that existing supplies of these fuels might

be commandeered during spill response leaving entire villages without fuel oil – or

paying exorbitant prices for remaining supplies – until local inventories can be resupplied

after ice breakup (late spring).

In short, we do not support the concept of adding lighter oil to heavier oil to make the

heavier oil more combustible. Since EPA does not include burning agents on the

Schedule (currently or as proposed), they should be used only with caution on a case-

by-case basis with concurrence (as discussed elsewhere). We request that EPA adds

language discussed in our general comments to the definition for burning agents.

Chemical agents: We request that EPA adds language discussed in our general

comments to the definition for burning agents. In addition, we suggest the following

changes.

Since synthetic sorbents are chemically-manufactured products, it seems proper to

include them in this definition.

Sinking agents be removed from the definition of chemical agents. Sinking agents are

not designed to facilitate the removal of oil from a contaminated environment or to

Trimarco, James, 2010, Can oil-eating mushrooms rescue the Gulf? Yes! Magazine, Oct. 1, 2010.

http://www.yesmagazine.org/issues/a-resilient-community/can-mushrooms-rescue-the-gulf

Thomas, Susan, 2000. Mushrooms: Higher macrofungi to clean up the environment, Battelle

Environmental Issues, Fall 2000.

Okparanma, Reuben, et al., 2011, Mycoremediation of polycyclic aromatic hydrocarbons (PAH)-

contaminated oil-based drill-cuttings, African Journal of Biotechnology, 10(26):5149-5156.

http://www.academicjournals.org/AJB DOI: 10.5897/AJB10.1108

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mitigate impact. This is why sinking agents are prohibited. They do not fit in this

definition. Further, some sinking agents like inorganic minerals and particulate matter are

not chemical agents.

It is arguable whether the toxic dispersants currently used in oil spill response “facilitate”

removal of oil or mitigate harmful effects of oil for reasons discussed below. Simply

saying that dispersants are “designed to facilitate” these desired outcomes is

disingenuous in light of overwhelming evidence that existing dispersants actually do the

opposite of what is desired. Nonetheless, it seems proper to include dispersants as a

category under this definition, but to clarify that dispersants do not act like the other

categories of chemical agents.

Dispersants: The volume of dispersants used during the BP DWH disaster constituted

the sixth largest marine petrochemical spill in U.S. history.

How can anyone justify this

as a good idea?

We find that dispersants act in direct opposition to the stated priorities of oil spill

response; i.e., to contain and remove oil and/or to mitigate oil impacts. Dispersants

change the distribution, not necessarily the amount, of oil in a marine system. The act of

dispersing oil makes it impossible to directly contain and remove oil from the

environment or at least makes it much harder to do so. A recent literature review on

dispersants found that oil spill dispersions act a bit like “salad dressing,” to quote former

EPA Administrator Lisa Jackson, in that they are not stable and dispersed oil will de-

stabilize and rise to the surface with half-lives of dispersions varying between 4 to 24

hours.

Further, it was found that more oil settled to the bottom in the presence of

dispersants. This was because dispersants increase the number of oil droplets in the

water column, and so facilitate opportunity for increased frequency of interaction

between the oil droplets and suspended particulate matter. The result is relatively stable

Oil-Mineral-Aggregates (OMAs) that drift about in the water column and slowly sink.

Gulf fishermen noticed and reported the existence of such OMA plumes from surface

spraying of dispersants after the BP DWH disaster. On May 12, 2010, scientists at the

National Institute for Undersea Science and Technology discovered large oily plumes at

depths of 1,000 to 1,400 meters. The largest was 10 miles long, 3 miles wide, and 300

feet thick in spots. Subsequently, other scientists also reported finding deep-sea oily

According to many sources including the USCG, 1.84 million gallons of dispersants were applied during

the BP DWH response, including 771,000 gallons at the wellhead.

http://www.eoearth.org/view/article/160620/

However, this volume is likely conservative because of documented spraying in coastal (state) water

and/or well after the wellhead was capped on July 15, 2010. http://www.huffingtonpost.com/riki-ott/an-

open-letter-to-us-epa_b_697376.html

Nonetheless, even the conservative volume of 1.84 million gallons of dispersants released into the

environment ranks among the top 10 marine oil spills in the United States.

http://www.infoplease.com/science/environment/largest-oil-spills-united-states.html

Fingas, M., 2014, A review of literature related to oil dispersants, 2011–2014, for the Prince William

Sound Regional Citizens’ Advisory Council, Anchorage, Alaska.

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plumes.

The OMA plumes can be stirred up by high-energy events such as hurricanes

and deposited on beaches years after the initial oil spill, as is occurring – by the ton –

along the Gulf Coast.

Once ashore, a study found that dispersants increase the penetration or downward

migration of highly toxic PAHs into beach subsurface sediments, once again making

removal impossible or uncertain, while also risking groundwater contamination.

As for mitigating impacts by promoting biodegradation in the water column through

formation of smaller oil droplets, it seems this was more theory than science. Studies

after the BP DWH disaster found dispersants inhibit biodegradation as the surfactants in

some of the current formulations of dispersants are toxic to beneficial oil-eating

bacteria.

Also, the chemically-dispersed oil is up to 300 times more toxic than

physically-dispersed oil because of the increased PAHs in the water column.

While

some studies show that dispersants may facilitate degradation of simple hydrocarbons

like alkanes, dispersants do not increase the biodegradation rate of the more toxic and

complex polycyclic aromatic hydrocarbons (PAHs).

On whole, it seems that

biodegradation of oil is best left to nature or biological agents, not chemical agents.

As for mitigating ecological impacts in general, this was couched as a subjective

“environmental trade-off” of short-term harm to the sea life in the upper water column to

reduce harm to the seashore and to birds and mammals on the sea surface. This logic is

flawed. As observed by Louisiana shrimper Clint Guidry in his May 24, 2010, testimony

to Agency and congressional representatives, “The Gulf is the Mother and the estuaries

are the nurseries. If the Mother dies, there will be no children to incubate.”

In hindsight,

Cutler, Cleveland, Deepwater Horizon Oil Spill, 2010, The Encyclopedia of Earth, last updated Feb. 22,

2013. http://www.eoearth.org/view/article/161185/

Marshall, B., More massive tar mats from BP oil spill discovered on Louisiana beaches, The

Advocate.com, Dec. 26, 2013. http://theadvocate.com/home/7900900-125/more-massive-tar-mats-

from

Foster, J., As summer officially begins, a 1,250-pound tar mat discovered off Florida beach,

ClimateProgress, June 24, 2014, http://thinkprogress.org/climate/2014/06/24/3452292/florida-tar-mat/

Kirby, J., III, “Findings of Persistency of Polycyclic Aromatic Hydrocarbons in Residual Tar Product

Sourced from Crude Oil Released during the Deepwater Horizon MC252 Spill of National

Significance,” supported by the Surfrider Foundation, April 14, 2012.

http://surfrider.org/images/uploads/publications/Corexit_Connections.pdf

Zuijdgeest A, and M Huettel, 2012, Dispersants as Used in Response to the MC252-Spill Lead to Higher

Mobility of Polycyclic Aromatic Hydrocarbons in Oil-Contaminated Gulf of Mexico Sand. PLoS ONE

7(11): e50549. doi:10.1371/journal.pone.0050549

Hamdan, Leila, and Preston Fulmer, “Effects of COREXIT® EC9500A on bacteria from a beach oiled

by the Deepwater Horizon spill,” Aquatic Microbial Ecology, 2011; 63:101-109.

Fingas, 2014, Dispersant Review.

Wilcock, R., et al., “Persistence of polycyclic aromatic compounds of different molecular size and water

solubility in surficial sediment of an intertidal sandflat,” Environmental Toxicology and Chemistry,

1996; 15:670-676.

Fingas, 2014 review on dispersants.

Guidry, Clint, 2010, Testimony, Galliano, Louisiana, May 24, 2010, provided by Mr. Guidry.

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dispersant applications in major oil spills have never prevented oil from coming ashore,

and the oil that comes ashore has dispersant mixed with it.

The effect of dispersant

and oil-dispersant combined on the waterproof and thermal properties of fur and feathers

remains untested,

despite there being a long-standing recommendation of the National

Research Council to do so

– perhaps because the answer is blatantly obvious.

To the lay person and many scientists, it was also blatantly obvious that using products

such as the Corexit dispersants – which contain chemical ingredients known to be

neurotoxins, mutagens, teratogens (able to disturb the growth and development of an

embryo or fetus), and carcinogens, and known to rupture red blood cells, causing

hemolysis (bleeding) and liver and kidney damage, among other things

– that using

these toxic products to supposedly “mitigate” toxic impacts from oil was simply a bad

idea. It still is.

Corexit dispersants and their equivalents, like industrial solvents in general, contain

many ingredients that target the same organs in the body as oil. Also, by nature as oil-

based solvents, they act as an oil delivery system, facilitating the entry of oil into the

body, into cells, which can damage every organ system in the body.

According to a

July 2010 scientific consensus statement, “The properties that facilitate the movement of

dispersants through oil also make it easier for them to move through cell walls, skin

barriers, and membranes that protect vital organs, underlying layers of skin, the surfaces

of eyes, mouths, and other structures."

This is, in fact, what happened: Dispersants

French, John, 2013, How do oil dispersants work as oil spill response counter measures?, presentation

at the 6

annual Northwestern Tribal Water Rights Conference hosted by the Center for Water

Advocacy, Anchorage, Alaska, October 2013.

Kirby, James “Rip” III, “Findings of Persistency of Polycyclic Aromatic Hydrocarbons in Residual Tar

Product Sourced from Crude Oil Released during the Deepwater Horizon MC252 Spill of National

Significance,” supported by the Surfrider Foundation, April 14, 2012,

http://surfrider.org/images/uploads/publications/Corexit_Connections.pdf

Koska, Joel, et al., 2011, Hydrocarbon-degrading bacteria and the bacterial community response in Gulf

of Mexico beach sands impacted by the [BP] Deepwater Horizon oil spill, Appl. Environ. Microbiol.

November 2011, 77(22):7962-7974, doi: 10.1128/AEM.05402-11.

Committee on Understanding Oil Spill Dispersants: Efficacy and Effects (National Research Council of

the National Academies), Oil Spill Dispersants: Efficacy and Effects, The National Academies Press,

Washington, DC, 2006.

Committee on Effectiveness of Oil Dispersants (National Research Council, Marine Board, Commission

on Engineering and Technical Systems), Using Oil Spill Dispersants on the Sea, National Academy

Press: Washington, DC, 1989.

For example, dispersant impacts could reasonably be anticipated to strip natural oils off fur and

feathers, destroying water-resiliency and thermal insulation properties and be ingested during

grooming or preening. Further, dispersants could strip the natural oily mucus layer off fish and

smooth-skinned marine mammals.

Burns, K. and Harbut, M.R., 2010. Gulf Oil Spill Hazards, Sciencecorps, Lexington, MA, June 14, 2010.

Available at http://www.sciencecorps.org/crudeoilhazards.htm

Burns and Harbut, Gulf Oil Spill Hazards.

Consensus Statement: Scientists oppose the use of dispersant chemicals in the Gulf of Mexico, July

16, 2010. Statement drafted by Dr. Susan D. Shaw, Marine Environmental Research Institute. Quotes

on pp. 1–2.

http://www.meriresearch.org/Portals/0/Documents/CONSENSUS%20STATEMENT%20ON%20DISP

ERSANTS%20IN%20THE%20GULF%20updated%20July%2017.pdf

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acted like an oil delivery system.

It should be obvious that any use – and particularly

extended use – of dispersants formulated with substances hazardous to life will only

make things worse.

Not surprisingly, ecosystem studies in the wake of the BP DWH oil-dispersant disaster

found that dispersants compounded harm instead of mitigating it to a wide variety of sea

life from the base of the food web such as bacteria, zooplankton, corals,

oysters, blue

crabs, and killifish

to apex predators such as tuna and dolphins.

This was primarily

due to the increase of PAHs in the chemically-enhanced water soluble fraction, noted

above.

Scientists found deformed and dying sea life in the region was “spatially

coordinated with oil from the [BP] Deepwater Horizon, both surface oil and subsurface

Kirby, David, 2013, Corexit, oil dispersants used by BP is destroying Gulf marine life, scientists say,

Huffington Post, April 25, 2013. http://www.huffingtonpost.com/2013/04/25/corexit-bp-oil-

dispersant_n_3157080.html

Sawyer, William, 2013, Gulf oil spill: Dispersants have potential to cause more harm than good,

PRNewwire, May 11, 2013. http://www.prnewswire.com/news-releases/gulf-oil-spill-dispersants-have-

potential-to-cause-more-harm-than-good-93424899.html

McClain, Craig, et al., 2015, Given the choice, corals would prefer oil to dispersants, Deep Sea News,

April 8, 2015. http://deepseanews.com/2015/04/given-the-choice-corals-would-prefer-oil-to-

dispersant/

Almeda R, Wambaugh Z, Wang Z, Hyatt C, Liu Z, et al. (2013) Interactions between Zooplankton and

Crude Oil: Toxic Effects and Bioaccumulation of Polycyclic Aromatic Hydrocarbons. PLoS ONE 8(6):

e67212. doi:10.1371/journal.pone.0067212

Fern, R., 2013, Acute toxicity of three alone and in combination with crude oil on Callinectus sapidus

megalopae, 2013 Gulf of Mexico oil spill & ecosystem science conference, Jan. 21–23, 2013, New

Orleans, LA.

Fingas, 2014, Dispersant Review.

Goodbody-Gringley G, et al., 2013, Toxicity of [BP] Deepwater Horizon Source Oil and the Chemical

Dispersant, Corexit® 9500, to Coral Larvae. PLoS ONE 8(1):

e45574.doi:10.1371/journal.pone.0045574

Jung, SW, et al., 2012, Stronger impact of dispersant plus crude oil on natural plankton assemblages in

short-term marine mesocosms, Journal of Hazardous Materials, Volumes 217–218, Pages 338-349,

ISSN 0304-3894, 10.1016/j.jhazmat.2012.03.034

Laramore, S., 2013, Acute and sublethal impacts of MC252 oil and dispersants on early life stages of

Crassostrea virginica, 2013 Gulf of Mexico oil spill & ecosystem science conference, Jan. 21–23,

2013, New Orleans, LA.

Rico-Martinez, Roberto, Terry Snell, and Tonya Shearer, 2013. “Synergistic toxicity of Macondo crude oil

and dispersant Corexit 9500A

to the Brachionus plicatilis species complex (Rotifera).” Environ.

Pollution, 173:5–10. http://www.sciencedirect.com/science/article/pii/S0269749112004344

Carmichael, Ruth, et al., “Were Multiple Stressors a ‘Perfect Storm’ for Northern Gulf of Mexico

Bottlenose Dolphins (Tursiops truncatus) in 2011?” PLoS ONE 2012; 7(7): e41155

Incardona, John P., et al., 2014, Deepwater Horizon crude oil impacts the developing hearts of large

predatory pelagic fish, Proceedings of the National Academy of Sciences, online March 24, 2014,

E1510–E1518. www.pnas.org/cgi/doi/10.1073/pnas.1320950111 www.pnas.org/lookup/suppl/doi:10.

1073/pnas.1320950111/

Sahagun, Louis, 2014, Toxins released by oil spills send fish hearts into cardiac arrest, Science Now,

2/13/14. http://www.latimes.com/science/sciencenow/la-sci-sn-tuna-hearts-oil-spill-toxins-

20140213,0,5212912.story#axzz2tKbuS7Oy

Schwacke, Lori, et al., Health of Common Bottlenose Dolphins (Tursiops truncatus) in Barataria Bay,

Louisiana, Following the Deepwater Horizon Oil Spill,

dx.doi.org/10.1021/es403610f Environ. Sci.

Technol. 2014, 48, 93−103, http://pubs.acs.org/doi/abs/10.1021/es403610f

Fingas, 2014, Dispersant Review.

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oil,” according to Dr. Jim Cowan with Louisiana State University’s Department of

Oceanography and Coastal Sciences.

This remains the case: a newly-released 3-year

study on bottlenose dolphins found the high rate of dolphin deaths and strandings

"overlap in time and space with locations that received heavy and prolonged oiling"

during the BP DWH disaster.

Like the Exxon Valdez oil spill,

the weight of evidence

shows that the killing did not stop the year of the spill, and impacts continue to ripple

through the ecosystem and human communities.

As for mitigating measures to protect health of response workers and the general public

from oil and dispersants – especially once it became obvious to people that they were

getting sick during the BP DWH response, the FOSC and other government officials

downplayed the risk of dispersants and oil exposures. Officials took minimal action to

protect workers and only after considerable public pressure – and none to protect the

general public (see §300.910(a)(1) justification).

For example, on May 24, 2010, Louisiana Shrimp Association Vice President Clint Guidry

warned a delegation of Administration officials and from Congress people that fishermen

working unprotected without respirators were getting sick from the in-situ burn operations

and simultaneous aerial spraying of dispersants. The MSDS for Corexit 9500A warns that

oxides of carbon (COx) and sulfur (SOx) may evolve under conditions of fire and

recommends wearing a full face positive-pressure self-contained breathing apparatus and

protective suit for fire fighting.

Two days later on May 26, seven shrimpers on the in-situ

burn team offshore of Venice, Louisiana, were evacuated by helicopter (medevac) to West

Jefferson Hospital with acute respiratory failure. Two days later on May 28, two more men

were taken by medevac from the in-situ burn team, also with acute respiratory failure.

When this issue of simultaneous in-situ burning and aerial spraying of dispersants was

raised directly to former EPA Administrator Lisa Jackson at a meeting with fishermen on

June 1, 2010, Jackson stated that dispersant spraying was not allowed within one mile of

in-situ burning. When presented with photo-documentation that spraying was occurring in

the immediate vicinity of the in-situ burning, she responded, “The [VOC] levels were a little

Dahr Jamail, “Gulf seafood deformities alarm scientists,” Aljazeera English, April 20, 2012.

http://www.aljazeera.com/indepth/features/2012/04/201241682318260912.html

Schleifstein, Mark, 2015, Study associates 3-year pattern of Gulf of Mexico bottlenose dolphin deaths

with BP oil spill, NOLA.com/The Times-Picayune, Feb. 12, 2015.

Venn-Watson, Stephanie, et al., 2015, Demographic Clusters Identified within the Northern Gulf of Mexico

Common Bottlenose Dolphin (Tursiops truncates) Unusual Mortality Event: January 2010 - June

2013, PLoS ONE, Feb. 11, 2015, DOI: 10.1371/journal.pone.0117248.

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0117248

Peterson, et al., 2003, Long-term ecosystem responses.

Ott, 2004, Sound Truth and Corporate Myths.

Ott, 2008, Not One Drop.

Li, Fu Jun, et al., 2015, Heme oxygenase-1 protects Corexit 9500a-induced respiratory epithelial injury

across species, Plos One, April 2, 2015, DOI: 10.1371/journal.pone.0122275.

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0122275

NALCO Environmental Solutions, LLC, 2012, Material Safety Data Sheet for Corexit EC9500A.

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high, but we didn’t want to create a panic.”

On July 3, 2010, Guidry obtained a copy of

Coast Guard Incident Report from May 5, 2010, that documented spraying of dispersants

on vessels and workers.

Such incidents were not uncommon, according to the fishermen

working as responders.

As the summer progressed, evidence mounted that people were being exposed to

dangerous levels of oil, dispersants, and/or chemically-dispersed oil. Scientists found oil

and oil-dispersant droplets aerosolized daily and became part of the Gulf hydrologic

cycle.

Gulf coast residents and media documented BP’s oily sheen on the leading edges

of their airplanes after flying over the Gulf,

in puddles on door stoops after rain, and in

outdoor swimming pools,

shallow bayous, bays, and coastal seas.

A pocket guide to oil and hazardous substance disasters is available to Air Force

Emergency Management personnel. The guide prepares people to seek medical

assistance for symptoms of toxic poisoning including: difficulty breathing; irritation of the

eyes, skin, throat, or respiratory tract; changes in skin color; headache or blurred vision;

dizziness, clumsiness or lack of coordination; cramps or diarrhea.”

In contrast, BP and

the government misrepresented known risks by asserting that Corexit was low in toxicity

and routinely comparing dispersants to Dawn dishwasher soap, according to an

investigative report by Government Accountability Project, the nation’s leading

whistleblower protection and advocacy organization.

Contract workers were not given

adequate training or personal protective equipment for a hazardous waste cleanup

(whether or not it was called that is irrelevant; that is what it was); beaches remained for

the most part open to the public who were uninformed of the risk of chemical exposure –

or given the courtesy of a pocket guide to prepare them to seek medical assistance.

Guidry, Clint with the Louisiana Shrimpers Association presented the question and documentation to

EPA Administrator Lisa Jackson on June 1, 2010. Alaska fisherman Dr. Riki Ott was also present at

this meeting and witnessed this exchange.

Guidry, Clint, Louisiana Shrimp Association, Copies of sign-in and US Coast Guard Incident Report on

May 5, 2010, obtained at meeting with Incident Command officials, Incident Command Center,

Houma, Louisiana, on July 3, 2010.

“Oil Rain” Confirmed by NASA chief mission scientist: Clouds from Gulf did “rain oil” on land (video),

Feb. 21, 2011. http://www.floridaoilspilllaw.com/oil-rain-confirmed-nasa-chief-mission-scientist-clouds-

gulf-rain-oil-land-video/

Wathen, John, Hurricane Creekkeeper, July 22, 2010 VIDEO.

http://bpoilslick.blogspot.com/2010/07/breathing-toxic-oil-vapors.html

Florida Oil Spill Law, “EXCLUSIVE: Tests find sickened family has 50.3 ppm of Corexit’s 2-

butoxyethanol in swimming pool — JUST ONE HOUR NORTH OF TAMPA,” August 30, 2010.

http://www.floridaoilspilllaw.com/exclusive-tests-find-sickened-family-has-50-3-ppm-of-corexits-2-

butoxyethanol-in-swimming-pool-just-one-hour-north-of-tampa-lab-report-included/

News 5 investigates: Testing the water, July 23, 2010.

http://www2.wkrg.com/special_section/2010/jul/17/news-5-investigates-testing-the-water-ar-2121731/

Air Force Emergency Management, 2006, pocket guide for oil and hazardous substance disasters,

AFEM. Helpdesk@tyndall.af.mil

Devine, Shanna and Tom Devine, Government Accountability Project, 2013. Deadly Dispersants in the

Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups?

http://www.whistleblower.org/gulftruth

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Coastal residents, BP spill response workers, filmmakers, writers, media, fishermen,

tourists, and others also reported or documented adverse short-term health impacts.

This consistently included the major symptoms characteristic of exposure to oil spills:

respiratory symptoms, central nervous system issues (headaches, vertigo, dizziness,

tingling extremities, nausea, and fatigue), skin rashes and irritations, and eye issues

(blurred vision).

In addition, other symptoms were widely reported, including bleeding

from nose and ears; blood in urine, stool, and vomit; blisters in the throat and reoccurring

MRSA-like skin lesions; seizures; hair loss; and more.

Corexit 9527A was sprayed in coastal waters as well as subsea at the broken

wellhead.

The SDS for Corexit 9527A warns that repeated or excessive exposure to 2-

butoxyethanol may cause injury to red blood cells (through hemolysis or rupturing), the

kidney, or liver.

Unprecedented high levels of oil compounds were reported in the blood

of coastal residents during summer and fall of 2010.

A health and economic survey

conducted in south Louisiana after the BP well was capped in July 2010 reported “almost

three-quarters of respondents who believed they were exposed to crude oil or dispersant

also reported experiencing symptoms. Additionally, nearly half of all respondents

reported an unusual increase in health symptoms consistent with chemical exposure.”

In March 2012, after denying health claims related to the disaster (except bodily injury)

for nearly two years,

BP agreed to a Medical Benefits Class Action Settlement

that

Barry Levy and William Nassetta, “The Adverse Health Effects of Oil Spills: A Review of the Literature

and a Framework for Medically Evaluating Exposed Individuals,” Int J Occup Environ Health

2011:17:121–167.

Griffith, Shawn, executive producer, Beyond Pollution, 2012.

Hopkins, Bryon, producer, Dirty Energy, 2012.

Jamail, Dahr, BP blamed for ongoing health problems, Aljazeera English, April 20, 2012.

http://www.aljazeera.com/indepth/features/2012/04/2012420725163795.html

Juhasz, Antonia, Black Tide: the Devastating Impact of the Gulf Oil Spill (Wiley, April 2011).

Ott, Riki, “Bio-remediation or bio-hazard? Dispersants, bacteria, and illness in the Gulf,” Sept. 17, 2010.

http://www.huffingtonpost.com/riki-ott/oil-spill-illness_b_873582.html

Tickell, Josh and Rebecca, producers, The Big Fix, 2011.

List is not exhaustive.

Ott, Riki, 2010, An open letter to US EPA Region 6. Aug. 27, 2010. http://www.huffingtonpost.com/riki-

ott/an-open-letter-to-us-epa_b_697376.html

Devine, Shanna and Tom Devine, Government Accountability Project (GAP), 2013, Deadly Dispersants in

the Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups? April

19, 2013. Part 5, Don and Shirley Tillman, affidavit, June 14, 2012. http://whistleblower.org/gulftruth

NALCO Environmental Solutions, LLC, 2012, Safety Data Sheet for Corexit EC9500A.

Wilma Subra, “BP spill blood test results – Louisiana residents: Evaluation of the test results of whole

blood volatile solvents testing,” Jan. 5, 2011. http://leanweb.org/our-work/community/public-health/bp-

spill-blood-test-results-louisiana-residents

Louisiana Bucket Brigade, Self-Reported Health and Economic Impact Survey: An Analysis of the

Deepwater Horizon Oil Disaster in Seven Coastal Louisiana Communities, March 3, 2011.

http://www.labucketbrigade.org/downloads/2010_HEStudy_SummaryFINAL_1.pdf

Administrator of BP’s Gulf Coast Claims Facility (GCCF) Ken Feinberg said “the GCCF did not pay for

respiratory illnesses, skin conditions or other spill-related ailments.” Quoted in Susan Buchanan,

“Health claims to be considered in BP’s spill settlement,” The Louisiana Weekly, March 12, 2012.

http://www.louisianaweekly.com/health-claims-to-be-considered-in-bp’s-spill-settlement/

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was uncapped, but earmarked millions of dollars for medical treatment, medical

monitoring, and compensation. The negotiated and agreed upon qualifying illnesses and

symptoms listed in Exhibit 8 of the Medical Benefits Class Action Settlement are, by

design, consistent with exposure to crude oil and dispersants.

Studies have reported

that 40 percent or more of residents and workers directly exposed to crude oil and

dispersants in the environment reported symptoms characteristic of oil exposure,

that

children were especially vulnerable, and that oil-dispersants combined were far more

toxic to humans than oil alone.

For example, 95% of the witnesses in GAP’s investigation reported that they continued

to experience spill-related health problems as of April 2013 (publication date), and more

than 50% living in affected areas reported that their children and/or grandchildren’s

health has deteriorated. Severe lingering health effects included: abdominal pain; blood

in urine; heart palpitations; hyper-allergic reactions to processed food and common

household cleaning or petroleum based products; hypertension; inability to withstand

exposure to sun; kidney damage; liver damage; migraines; multiple chemical sensitivity;

BP-Plaintiffs Medical Benefits Class Action Settlement Agreement,

http://www.laed.uscourts.gov/OilSpill/6.pdf

BP-Plaintiffs Medical Benefits Class Action Settlement Agreement, Exhibit 8: Specified Physical

Conditions Matrix, Table 1: Acute SPECIFIED PHYSICAL CONDITIONS, and Table 3: Chronic

SPECIFIED PHYSICAL CONDITIONS. http://louisiana-lawyer.com/bp-oil-spill-lawyer-blog/wp-

content/uploads/2012/04/6273-10.pdf

Abramson, David, et al., 2013. “Children’s Health after the Oil Spill: A Four-State Study. Findings from

the Gulf Coast Population Impact (GCPI) Project.” National Center for Disaster Preparedness, NCDP

Briefing Report 2013_1. Columbia University Mailman School of Public Health, New York.

http://academiccommons.columbia.edu/item/ac:156715

GAP 2013, Deadly Dispersants. http://whistleblower.org/gulftruth

Jamail, Dahr, “BP’s ‘widespread human health crisis’, Aljazeera English, Oct. 27, 2013.

http://www.aljazeera.com/indepth/features/2013/10/bp-widespread-human-health-crisis-

2013102717831227732.html

Kirby, James “Rip” III, “Findings of Persistency of Polycyclic Aromatic Hydrocarbons in Residual Tar

Product Sourced from Crude Oil Released during the Deepwater Horizon MC252 Spill of National

Significance,” supported by the Surfrider Foundation, April 14, 2012,

http://surfrider.org/images/uploads/publications/Corexit_Connections.pdf

Laffon, Blanca, et al., 2013. “Endocrine and immunological parameters in individuals involved in Prestige

spill cleanup tasks seven years after the exposure,” Environment International 59 (2013):103–111.

http://www.whistleblower.org/program-areas/public-health/corexit

Riles, Eric, 2010, Health effects related to the sinking of the [BP] Deepwater Horizon oil rig, Medicine at

Michigan, fall 2010, vol 12(3)

Subra, Wilma, 2011, Results of Health Survey of Individuals in Mississippi Impacted by the BP Deepwater

Horizon Oil Disaster, Environmental Pollutants Released by Industrial Facilities in Southeast

Mississippi, Subra Company/Louisiana Environmental Action Network.

U.S. Centers for Disease Control and Prevention. Oil Spill Dispersant (COREXIT ®EC9500A and

EC9527A) Information for Health Professionals. Accessed Aug 18, 2010. In Riles, Health Effects.

Young, Jeff, 2011, “Toxic Tide – Discovering the Health Effects of the [BP] Deepwater Disaster (sic),” Part

1, NPR Living on Earth, week of Feb. 11, 2011.

http://www.loe.org/shows/segments.html?programID=11-P13-00007&segmentID=3

Young, Jeff, 2011, “Toxic Tide – Discovering the Health Effects of the [BP] Deepwater Disaster (sic),” Part

2, week of Feb. 21, 2011. Including segment on oil rain confirmed by scientist: Clouds from Gulf did

“rain oil” on land (video). http://www.loe.org/shows/segments.html?programID=11-P13-

00007&segmentID=3

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neurological damage resulting in memory loss and in some cases IQ drop; rapid weight

loss; respiratory system and nervous system damage; seizures; skin irritation, burning

and lesions; sudden inability to move or speak for sustained periods; temporary

paralysis; and vomiting episodes.

GAP extended its investigation and reported five years after dispersant was used

throughout the Gulf, “the overwhelming majority of original and new witnesses continue

to experience adverse health impacts associated with dispersant and oil exposure. The

phenomenon has been coined the ‘BP Syndrome’ or ‘Gulf Coast Syndrome’.” Symptoms

remain consistent with initial reports and also now include but are not limited to blood in

urine and rectal bleeding; hyper-allergies to processed foods; violent vomiting episodes

that last for hours and result in rapid weight loss; weakness and fatigue, at times leading

to depression; migraines; abdominal pain attacks; skin irritation, burning and widespread

lesions; rashes; inability to withstand exposure to sun; Multiple Chemical Sensitivity,

resulting in new sensitivities to everyday household cleaning products or petroleum

based products (plastic water bottles); impotence; heart palpitations; and hypertension.

Further, “witnesses have begun reporting long-term health effects, including reproductive

damage (such as genetic mutations), endocrine disruption, and cancer.”

The BP DWH disaster was the first time that effects of dispersants on human health

were studied, and the studies support the evidence of harm. One study on cleanup

workers exposed to oil and dispersant reported that participants had significantly altered

blood profiles and liver enzymes, indicating higher risk for blood-related disorders, and a

high prevalence of somatic symptoms – headaches, shortness of breath, skin rash,

cough, dizzy spells, fatigue, painful joints, night sweats, and chest pain

–

consistent with previously reported studies on major spills.

A study with human lung

epithelial cells found the water-soluble fraction of oil-dispersant mixtures (Corexit

9527A, 9500A, and 9580A) caused cell death in a dose-dependent manner.

Cell death

was through apoptosis, which is a genetically-directed process of cell destruction

activated by the presence of a stimulating agent (the oil-dispersant mixture), and

autophagy or controlled digestion of damaged organelles within a cell. A study with

human fecal microbiota found oil-dispersant (Corexit 9500) mixtures decreased the

abundance and diversity of the community more so than oil or dispersant alone.

Inhalation tests with rats exposed to Corexit 9500A vapors measured neural dysfunction

Ott, Riki, and Shanna Devine, 2014, Presentation to the Office of Management & Budget on Sept. 24,

2014, by the Coalition to Ban Toxic Dispersants and the Government Accountability Project,

Washington, DC. http://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=false&rin=2050-

AE87&meetingId=578&acronym=2050-EPA/SWER

Government Accountability Project, Devine, Shanna, and Tom Devine, 2015, Addendum Report

to “Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New

Norm for Oil Spill Cleanups?” Apr 22, 2015.

D’Andrea, Mark and Kesava Reddy, 2013. “Health consequences among subjects involved in Gulf oil

spill cleanup activities,” The American Journal of Medicine, Vol. 126(11):966-974.

http://download.journals.elsevierhealth.com/pdfs/journals/0002-9343/PIIS0002934313004944.pdf

Wang, H., et al., 2012, Lung epithelial cell death induced by oil-dispersant mixtures, Toxicol. in Vitro,

26(5): 746–751. doi: 10.1016/j.tiv.2012.03.011. http://www.ncbi.nlm.nih.gov/pubmed/22504303

Cerniglia, Carl, et al., 2012, Effects of crude oil, dispersant, and oil-dispersant mixtures on an in vitro

culture system. mBio 3(5):e00376-12. doi:10.1128/mBio.00376-12.

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in the brain with a potential imbalance in neurotransmitter signaling

; possible effects

on breathing, also caused by brain dysfunction

; and dose-dependent increases in

heart rate and blood pressure with reduced peripheral vascular function.

These

studies were short-term exposures, and results were transient.

Unfortunately, it seems that chronic exposures along the Gulf Coast led to chronic health

issues. Many of us have either had personal experience with illnesses stemming from

the BP DWH or other oil disasters or know of someone who has. (See Additional

Definitions for health impacts of exposure to UOG.) We believe that a significant portion

of the Gulf Coast population was at-risk of overexposure to oil and dispersants in the

environment in the wake of the BP DWH disaster; that many expressed symptoms

characteristic of this exposure; and that the Gulf Coast population remains at risk of long-

term health problems stemming from this exposure, while the much-needed treatment

remains elusive despite the illusion of a safety net in the BP medical benefits settlement.

This is further discussed in §300.910(a)(1) justification.

We are also concerned about dispersant impacts on seafood safety, which has direct

bearing on dispersant use and risk communication. As occurred in Alaska after the

Exxon Valdez spill, there was intense industry pressure to reopen fisheries in areas

closed due to oiling to minimize industry’s legal obligations to compensate for these

monetary damages. The federal and state governments prematurely reopened the

fisheries in the Gulf of Mexico, as they had in Alaska, resulting in oiling of nets and boats

and in potentially dangerous harvests of contaminated seafood,

some of which made it

all the way to markets and restaurants.

Instead of acting to protect consumers, FDA lowered its cancer risk standard by allowing

three and four times more toxic PAHs in Gulf shrimp and crabs, respectively, than

allowed in West Coast seafood.

This thoroughly alarmed Gulf fishermen, who were

liable for harvests of potentially contaminated seafood,

and all Gulf residents as most

Sriram, K., et al., 2011, Neurotoxicity following acute inhalation exposure to the oil dispersant Corexit

EC9500A, J. of Toxicol. Environ. Health A: Current Issues, 74(21):1405–18. doi:

10.1080/15287394.2011.606796. http://www.ncbi.nlm.nih.gov/pubmed/21916746

Roberts, Jenny, et al., 2011, Pulmonary effects after acute inhalation of oil dispersant (Corexit

EC9500A) in rats, J. of Toxicol. Environ. Health A, 74(21):1381–1396. doi:

10.1080/15287394.2011.606794.

http://www.tandfonline.com/doi/abs/10.1080/15287394.2011.606794#.VOKY9UI8o5M

Krajnak, K., et al., 2011, Acute effects of Corexit EC9500A on cardiovascular functions in rats, J. of

Toxicol. Environ. Health A, 74(21):1397–1404. doi: 10.1080/15287394.2011.606795.

http://www.ncbi.nlm.nih.gov/pubmed/21916745

Jamail, Dahr, “Gulf seafood deformities alarm scientists,” Aljazeera English, April 20, 2012.

http://www.aljazeera.com/indepth/features/2012/04/201241682318260912.html

Jamail, Dahr, “Gulf ecosystem in crisis after BP spill,” Aljazeera English, Oct. 20, 2013.

http://www.opednews.com/articles/Gulf-ecosystem-in-crisis-a-by-Dahr-Jamail-Corporation-

BP_Ecosystems_Gulf-Oil-Spill-Disaster_Gulf-Shrimping-Industry-131020-15.html

Flynn, Dan, 2010, FDA lowers the bar for Gulf seafood safety, Food Safety News, Sept. 8, 2010.

http://www.foodsafetynews.com/2010/09/fda-raised-the-bar-for-gulf-seafood-safety/#.VOAG8kI8o5M

Hopkins, Bryon, producer, 2012, Dirty Energy, The Deepwater Horizon Disaster: First-hand Stories

from the Louisiana Bayou. http://dirtyenergymovie.com

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consume three to twelve times more seafood than the estimates used in FDA’s health

risk assessment calculations and therefore bore an even higher risk from health issues

related to consumption of Gulf seafood.

The bottom line with seafood safety is that we

don’t want the government playing politics with our seafood. Opening fisheries in the

midst of two spills – an oil discharge and a chemical release – is risky business. It

releases the spiller from liability for ongoing losses associated with closed fisheries, and

it puts the burden of proof on fishermen, instead of government, to ensure harvests are

safe.

If the current formulations of toxic dispersants are used in spill response, fisheries

should be automatically closed until at least one month after the last reported application.

Finally, there is the issue of subsurface dispersant use in the deep sea. A couple

decades prior to the BP DWH disaster, the oil industry with government support started

experimenting with the feasibility of subsea dispersant injection to mix the oil with

dispersant at the source.

The industry advocated this technology as practical, cost

effective, and “one of the more promising solutions for dealing with a deep water out-

flow of oil.”

Subsea dispersant injection was used in the U.S. for the first time during the BP DWH

disaster. EPA Region 6 adopted an interim use policy twenty days of the rig blowout.

BP and the Coast Guard reported using 771,272 gallons of Corexit 9527A,

which has

been banned in several countries including Great Britain.

The justification for use was

safety and pollution mitigation. Specific safety concerns mentioned were that the VOCs

and the LEL (Lower Explosive Limit) exceeded safe working conditions. VOCs were

measured at 100–400 ppm (full face mask with cartridges are worn if levels are over 50

ppm) and the LEL was measured at 15–20% or in the explosive range. Monitoring

guidelines were a key part of the approval to use subsea dispersant injection, however

this requirement pertained to monitoring the dispersant flow rates, fate, and Rototox

(rotifer) toxicity testing.

Monitoring indicated that VOCs dropped to very low levels after dispersant spraying

NRDC, Gina Solomon, 2010, Gulf Coast seafood consumption survey, Dec. 2010.

http://docs.nrdc.org/health/files/hea_10120702a.pdf

NRDC, FDE underestimates Gulf Coast residents’ exposure to carcinogens in seafood, Dec. 8, 2010.

http://www.nrdc.org/media/2010/101208.asp

Hopkins, Bryan, 2012, Dirty Energy.

Drieu, Mike, Subsea dispersant injection: Technology and industry perspective, Presentation at the

RRT 6 meeting in Little Rock, AR, June 14–15, 2011.

http://www.rrt6.org/Uploads/Files/rrt_semi_annual_meeting_minutes_2011_june.pdf

EPA Region 6, 2010, Dispersant monitoring and assessment directive for subsurface dispersant

application, May 10, 2010.

https://crrc.unh.edu/sites/crrc.unh.edu/files/media/docs/Workshops/dispersant_future_11/Dispersant_

Initiative_FINALREPORT.pdf

Staves, James, EPA Region 6, 2010, The Deepwater Horizon: Impact on dispersant use policies.

http://www.boem.gov/uploadedFiles/BOEM/BOEM_Newsroom/Library/Publications/2012/PowerPoint

_Source_Files/2C_0815_Staves_PPT.pdf

Marcus, Jacqueline, 2013, BPs’ final nail in the Gulf coffin: Why the feds must ban the toxic dispersant

Corexit, Truth Out/Buzz Flash commentary, Oct. 25, 2013. http://www.truth-

out.org/buzzflash/commentary/bp-coffin-feds-must-ban-corexit/18274-bp-coffin-feds-must-ban-corexit

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started, although this was likely due to natural causes (see below); and also that the

dispersant was not very toxic as rotifers had 90 percent survival rates when tested with

the product alone. Subsea dispersant use was allowed to continue into July. In

November, before monitoring results from the summer were fully evaluated, BOEMRE

(formerly MMS) issued a national Notice To Lessees (NTL) and operators of federal oil

and gas leases on the outer continental shelf that essentially required subsea

dispersant injection equipment on applications for new deep sea drilling well permits.

There is ample evidence now to show that subsea dispersant use is not warranted or

desired. According to a 2014 literature review by noted dispersant expert Merv Fingas,

the pressure of the release and depth basically changes the behavior and composition

of the oil within seconds. This results in formation of gaseous, oil plumes at depth, in a

phenomenon analogous to a mushroom cloud and known as “fold-out.” The fold-out

gives rise to discreet plumes based on densities and size of particulate matter. Once the

jet-plume phase ends, the remaining oil changes rapidly by loss of volatiles and gas

bubbles. The weathered oil and sometimes-emulsified oil rises slowly. Most importantly,

the dispersed oil plume occurs whether or not dispersant is used. In other words, during

a subsea oil discharge there is more than sufficient pressure to physically disperse the

oil, naturally. For this reason, we find subsea dispersant use to be unwarranted.

We also believe that subsea dispersant use is undesired. We find no scientific evidence

to support the claim that subsea dispersant use provides a net environmental gain or

mitigates oil impacts to the benthic community. In 2012, scientists convened to evaluate

dispersant use during the BP DWH disaster. As part of a lengthy report, scientists

conceded that toxicity tests focused on 2 or 3 species were of limited value as

predictors for ecosystem impacts.

Subsequent toxicity tests on rotifers using

chemically-dispersed oil found the oil-dispersant combined was lethal to half of the early

life stages of rotifers, a finding called “ecologically significant” by the authors.

Also, oil-

eating bacteria are concentrated in the upper zones of the ocean

and biodegradation

is a kinetic process in that it occurs faster in warmer water. Biodegradation at depth in

cold water is non-existent or extremely limited. Basically, we know next to nothing about

dispersant impacts on deep-sea ecology, but we find it reasonable to assume that

dispersants will have the same devastating short- and long-term impacts, noted above,

in the deep sea that they have had in other ocean zones more accessible to scientists.

In short, the current formulation of dispersants make it impossible or harder to contain

and remove oil; they act as sinking agents by facilitating interaction with suspended

particulate matter; they seem as likely to inhibit as to promote biodegradation of

alkanes, but they do not increase degradation of PAHs; and they do not mitigate

US Interior Department, Bureau of Ocean Energy Management, Regulation, and Enforcement, 2010,

National Notice to Lessees and Operators (NTL) of Federal and Gas Leases, Outer Continental Shelf,

Statement of Compliance with Applicable Regulations and Evaluation of Information Demonstrating

Adequate Spill Response and Well Containment Resources, NTL No. 2010-N10, effective Nov. 8,

2010 to Nov. 8, 2015.

NOAA et al., 2012, Dispersant Initiative Report.

Rico-Martinez, 2013. http://www.sciencedirect.com/science/article/pii/S0269749112004344

Fingas, 2014 Dispersant Review.

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impacts from oil – they increase harm by acting as an oil delivery mechanism into the

body of humans and wildlife alike.

Therefore, we cannot support continued use of the current formulation of toxic

dispersants. We request that EPA either prohibit toxic dispersants or, at a minimum,

prohibit toxic ingredients in current formulations of dispersants. Finally, we request that

EPA prohibit subsea dispersant use based on strong evidence that such use is

completely unnecessary due to natural dispersion and is much more likely to cause

additional harm than the oil alone.

Herding agents: We request that EPA adds language discussed in our general

comments to the definition for herding agents.

Products: We find this definition incomplete as it only includes agents that may be

listed on the Product Schedule. It does not include other products, also manufactured

using a unique composition or formulation such as burning agents and synthetic

sorbents, that may be used in spill response. Nor does it include organic and inorganic

substances or sorbents that may be used in bulk form. We request clarification of this

definition to include anything and everything that may be used on oil spills.

Sinking agents: We cannot support this definition as proposed. Currently and

consistently in the past, EPA has prohibited use of sinking agents on oil spills because

sinking agents undermine the primary goal of oil spill response; i.e., to contain and

remove the oil from the water. Sinking agents make mechanical containment and

recovery impossible. They do not reduce the amount of oil entering the environment but

instead act to move the oil beneath the water surface into the water column and,

eventually, to the bottom of the water body, as discussed above. For these reasons, the

definition of “sinking agent” is important because it acts to limit the types of products that

can be used in oil spill response.

The definition specifies what qualifies as a “sinking agents.” For forty years, EPA has

regarded sinking agents as additives that can physically sink the pollutant below the

water surface. Specifically, if the specific gravity was greater that 1.0, EPA considered

the product a “sinking agent” and prohibited its use on or near water during oil spills. The

additives envisioned were clay, sand, and cement.

Now however, there is an issue with dispersants that chemically interact with floating oil

to promote formation of oil droplets below the water surface. Once in the water column,

the oil droplets interact with particulate matter. As a result of this two-step process, more

oil settles to the bottom in the presence of dispersants than without them.

Thus,

dispersants facilitate sinking of oil. However because dispersants have a specific gravity

of less than 1.0, EPA does not consider them to be sinking agents.

Similarly, some sorbents used in bulk form mimic suspended particulate matter and also

facilitate sinking of oil, particularly in the presence of dispersants, as discussed below.

Ibid.

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However, these sorbents also have a specific gravity of less than 1.0, so EPA does not

consider them to be sinking agents either.

In fact, EPA has manipulated the definition of “sinking agents” to exclude the very agents

and substances that act on oil to sink it. By proposing to define sinking agents as

“substances deliberately introduced into an oil discharge for the purpose of submerging

oil to the bottom of a water body,” EPA excludes all agents and any substances with a

specific gravity of less than 1.0 – without actually saying this is what it is doing. This leap

of imagination would continue to allow dispersants. It would allow use of substances that

might act alone or in combination with other agents or substances to create oily plumes

(see Oil-Mineral Aggregates under sorbents) that may form mid-water oily plumes that

not sink oil “to the bottom” – at least immediately or deliberately. It would allow use of

subsea dispersants. We offer a definition of sinking agents as “substances introduced

into an oil discharge, irrespective of specific gravity, that alone or in concert with other

substances, act to submerge oil below the surface of the affected water body…”

We find the proposed definition is inconsistent with language under Prohibited Agents in

§300.910(e), as it renders the prohibition of sinking agents virtually meaningless.

Further, we find the proposed definition is at odds with EPA’s own justifications for

prohibiting sinking agents in the first place, including concern that potential adverse

impacts on benthic organisms “vital to the food chain of the aquatic environment,” and

that sinking makes the oil and agents “very difficult to remove.”

This definition defies both logic and common sense and seems not to be science-based.

The act of submerging oil equates to sinking oil. It is physically impossible to submerge

oil to the bottom of a water body without sinking it in the process. To an organism in the

water column or on the bottom, it doesn’t matter if an agent or substance was

deliberately introduced to submerge or sink oil or if the product unintentionally acted to

simply sink oil. Further, oil and/or agents or substances deliberately submerged or

unintentionally sunk to the bottom are no doubt equally “very difficult to remove.”

In short, we find the proposed definition of sinking agents actually allows the opposite of

its stated intent. The bottom of the ocean or lake or any other water body is not a

dumping ground for industry; it should not be considered a repository for spilled oil and

so-called mitigating substances. Oil spill response should minimize the amount of oil that

reaches the bottom of our water bodies; it should minimize the amount of somewhat

buoyant oily plumes drifting about at various depths in the water column and killing

aquatic life. We request that EPA update the definition of sinking agents to include any

chemical or biological agent, substance, or additive, irrespective of specific gravity, that

alone or in combination with other agents or substances submerges or acts to submerge

or retain oil beneath the water surface.

U.S. EPA, 2015, Rulemaking on National Oil and Hazardous Substances Pollution Contingency Plan,

FR 80(14):3380–3446, on p. 3385.

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Solidifiers: We have several concerns about solidifiers, summarized in a 2008 literature

review.

Solidifiers have no real advantage over sorbents or mechanical recovery. Once

solidifiers are used, use of skimmers is precluded. They cross-link or react with other

things – docks, boats, boom, etc. Some react so quickly that the oil may form a crust on

the surface, making it more difficult to contain and remove the underlying oil; others not

quickly enough, making them of limited use. Solidifiers must be recovered quickly after

use, making them practical only for small, thin spills on water close to shore. We request

that EPA add language discussed in our general comments to the definition for

solidifiers. Further, we request additional limitations to specify conditions under which

this agent may be used such as proximity to shore and quantity of oil.

Sorbents: We cannot support EPA’s proposed rule to use “sorbents” – specifically,

inorganic/mineral compounds and synthetic micro compounds such as plastic micro

beads in bulk form – to promote dispersion of oil or to float non-buoyant oil. We have

four main concerns with using sorbents in bulk form as particulate materials (PM): 1)

plastic micro beads are pollutants that harm marine and fresh water ecosystems; 2) PM

introduced by themselves enhance physical dispersion by preventing oil from re-

coalescing; 3) PM introduced in conjunction with dispersants also enhance physical

dispersion by formation of stable OMAs; and 4) PM and/or OMAs sink over time, settling

the pollutant and/or pollutant-oil combined to the bottom of the water body.

Plastic pollution has been recognized as a problem in marine ecosystems since the

1970s.

Numerous studies have found that a wide range of marine life including

lugworms and sea cucumbers, shellfish such as oysters and mussels, reptiles, fish, birds

like albatrosses, and marine mammals are harmed by ingesting micro-plastics.

The

U.S., over 140 other nations, the United Nations, municipalities, non-governmental

organizations, and even the chemical industry have taken action through international

treaty, laws, or voluntary programs to reduce plastic pollution in the ocean.

The research and concerted actions to protect the marine ecosystem from micro (and

macro) plastics is predictive for fresh water ecosystems where micro-plastic pollution has

only recently been documented in surfaces and sediments. In 2012, a team of

researchers studying plastic pollution in the Great Lakes discovered a huge tiny problem:

plastic micro beads were building up in the environment. The source was found to be

exfoliating facial scrubs and other cosmetics. Consumer advocacy campaigns were

Fingas, Merv, 2008, A review of literature related to oil spill solidifiers 1990–2008, prepared for Prince

William Sound Regional Citizens’ Advisory Council, Anchorage, AK, Contract No. 955.08.03

Ivar do Sul, J.A., and Costa, M.F. 2014. The present and future of microplastic pollution in the marine

environment. Environ. Pollut. 185:352–364. doi:10.1016/j.envpol.2013.10.036. PMID:24275078.

5 Gyres Institute, Plastic Soup Foundation, Surfrider Foundation, Plastic Free Seas, and Clean Seas

Coalition, 2013, Position Paper: Microplastics in consumer products and in the marine environment.

http://5gyres.org/media/5_Gyres_Position_Paper_on_Microplastics.pdf

Green Facts DIGEST, Marine Litter, Section 6. What is currently being done in the world about marine

litter? Source document: Joint Group of Experts on the Scientific Aspects of Marine Environmental

Protection, 2010, Proceedings of the GESAMP International Workshop on micro- plastic particles as

a vector in transporting persistent, bio- accumulating and toxic substances in the oceans.

http://www.greenfacts.org/en/marine-litter/l-3/6-initiatives-about-marine-litter.htm#0p0

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successfully launched to “scrub out the scrubbers” and cosmetics companies such as

Unilever, Johnson & Johnson, Procter & Gamble, and the Body Shop pledged to remove

micro-beads from their products. The plastic micro-beads were slow to break down and

quick to pick up toxic pollutants, posing a problem for aquatic life, dubbed “toxic junk

food” by environmental groups.

The tiny balls of plastic slowly sink to the bottom of a

water body over time and recently were found in sediment of the Saint Lawrence River.

Emerging research on consumption of micro-plastics by freshwater organisms has

confirmed ingestion does occur, while consequences have yet to be determined

– but

are anticipated to be harmful, based on the marine findings.

Regarding use of PM alone or in conjunction with other agents to physically disperse oil,

EPA points out that some of the emerging response technologies use particulate

material to form oil-mineral aggregates (OMAs) to promote dispersion. “OMAs are stable

microscopic entities formed when particulate materials interact with the oil droplets

resulting in distinct oil and mineral phases. These fine mineral particles could be

intentionally introduced by themselves to promote physical dispersion by preventing the

oil to re-coalesce, or can also be used in conjunction with dispersants to enhance

chemical dispersion” (80 Fed. Reg., p. 3386, Jan 22, 2015). Further, EPA proposes to

allow sorbents in bulk form based on consideration of specific gravity, not how they act in

the environment: “(A)ny particulate material that by itself, or when combined with oil

(e.g., OMA), results in overall densities less than the waters where it may be used, would

not be prohibited as a sinking agent.”

As discussed above (see Sinking Agents), we cannot support technologies that mimic

natural processes and result in formation of subsurface oily plumes (OMAs) and gradual

sedimentation and deposition of oil on the bottom of water bodies or adjacent shores.

Scientists have conservatively estimated based on radiocarbon measurements of

surface sediment organic matter that about 10 million gallons of oil from the BP DWH

disaster remain on the ocean bottom.

That is practically the amount of oil reportedly

Frinkel, Susan, 2013, Don’t lather, don’t rinse, don’t repeat, On Earth, Fall 2013,

http://archive.onearth.org/articles/2013/08/stop-exfoliating-the-great-lakes-plastic

Castañeda, Rowshyra A., et. al., 2014, Microplastic pollution in St. Lawrence River system, Canadian

Journal of Fisheries and Aquatic Sciences, 2014, 71(12): 1767-1771, 10.1139/cjfas-2014-0281.

http://www.nrcresearchpress.com/doi/abs/10.1139/cjfas-2014-0281?src=recsys&#.VNzUJEI8o5M

Feltman, Rachel, 2014, Plastic microbeads from face wash are polluting river sediment, The Washington

Post, September 29, 2014. http://www.washingtonpost.com/news/speaking-of-

science/wp/2014/09/29/plastic-microbeads-from-face-wash-are-polluting-river-sediment/

Sanchez, W., Bender, C., and Porcher, J.-M. 2014. Wild gudgeons (Gobio gobio) from French rivers

are contaminated by microplastics: Preliminary study and ﬁrst evidence. Environ. Res. 128:98–100.

doi: 10.1016/j.envres.2013.11.004. PMID: 24295902.

Chanton, Jeffrey, et. al., 2015, Using Natural Abundance Radiocarbon To Trace the Flux of

Petrocarbon to the Seafloor Following the Deepwater Horizon Oil Spill, Environ. Sci. Technol., 2015,

49 (2), pp 847–854. DOI: 10.1021/es5046524. Publication Date (Web): December 12, 2014.

http://pubs.acs.org/doi/ipdf/10.1021/es5046524

Geggel, Laura, 2015, “Missing oil” from 2010 BP spill found on gulf seafloor, CBS News, Feb. 3, 2015.

http://www.cbsnews.com/news/missing-oil-from-2010-bp-spill-found-on-gulf-seafloor/

Schleifstein, Mark, 2014, BP spill left ‘bathtub ring’ of oil across more than 1,200 square miles of Gulf

seafloor, new study says, NOLA.com/Times-Picayune, Oct. 27, 2014.

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spilled by the Exxon Valdez. The effects of this massive transfer of toxic hydrocarbons to

the ocean bottom is unknown, however, research on the more accessible sea life found

that dispersants enhanced oil toxicity by making PAHs more available to aquatic life and

oil sedimentation through more frequent interactions with suspended particulate matter

(see Dispersants). We find it reasonable to anticipate similar impacts on benthic life.

We find that once the oil is in the water column, it’s a matter of out of sight, out of mind –

at least until it arrives on the bottom of a water body where it can be measured or

washes up on beaches as oily tar mats where it can be picked up. The Coast Guard

currently lacks the ability to determine the location of subsurface oil plumes in near-real

time, which inhibits timely decisions to protect the environment, drinking water and other

water intakes and commercial facilities, commercial and recreational fisheries,

recreational users, first responders, and more. Further, the Coast Guard also lacks the

ability to discover – and recover – very low levels of oil or dispersed oil at all depths,

according to a Broad Agency Announcement published on November 1, 2014. “The

USCG lacks a reliable technology, technique or strategy that can remove submerged oil

or mitigate the adverse impact of any type of oil submerged in the water column of fast

moving waters located in riverine or near-shore environments in depths down to 200

feet.”

In short, while technological solutions may be illusive or years away, we find that a very

simple, partial solution is currently available – do not use technologies, regardless of

their specific gravity, to promote oil dispersion, formation of subsurface oily sediment

plumes (OMAs), or oil sedimentation and deposition. Don’t promote technologies that act

alone or in combination with others to make oil more difficult to contain and remove –

and especially ones that make oil more toxic! We request EPA to promulgate rules that

prohibit use of sorbents in loose particulate form. We request that EPA specifies that

sorbents may be used only in booms or other contained manufactured products.

In addition, EPA asks if there are other sorbents that should be included. We support

inclusion of human hair as a natural organic substance when used in boom or other

contained manufactured products. The Environmental and Analytical Chemistry Branch

of NASA conducted oil sorption tests of human hair in 1998; Matter of Trust is now

sponsoring bioremediation research and points out that “microbes, worms, and green

waste are found all over the world.”

http://www.nola.com/environment/index.ssf/2014/10/bp_spill_left_bathtub_ring_of.html

Department of Homeland Security, U.S. Coast Guard, 2014, Broad Agency Announcement (BAA) for

mitigation of oil in the water column (COMBINE), November 1, 2014, Issue: FBO-4725. Solicitation

number: HSCG32-14-R-R00021

https://www.fbo.gov/index?s=opportunity&mode=form&id=f557d95f31024911d2b74a66f2020af4&tab

=core&_cview=1

NASA, Environ. and Analytical Chemistry Branch, 1998, Space Act Agreement 97001 (BEPS)

Results. http://www.moft.org/old/gulf%20spill/NASA%20Otti%20testing0001%20(dragged)%201.pdf

http://www.moft.org/old/gulf%20spill/NASA%20Otti%20testing0001%20(dragged).pdf

Matter of Trust, Bioremediation research link: http://matteroftrust.org/639/oily-hairmat-bioremediation-sf-

bay-area-treatability-study-phase-ii-completed

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Finally, EPA asks for comments on whether it is necessary to remove a natural organic

and biodegradable sorbent when removal might do more harm than good. The example

used is a marsh or wetland. We are concerned about the time scale of bioremediation. It

is generally not a speedy process and may be on the order of decades, especially in

colder temperature environments. We are concerned that sorbents, contaminated with

hazardous oily waste, could pose health risks to the environment and the public long

after the cleanup has ended. Therefore, we request that sorbents be used with the intent

of collecting and removing them from the environment.

Surface washing agents: We request that EPA adds language discussed in our

general comments to the definition for surface washing agents.

RECOMMENDATIONS (edits)

Biodegradation is a process by which microorganisms transform or alter (through

metabolic or enzymatic action) the structure of contaminants introduced into the

environment metabolically decompose contaminants into biomass and simpler

compounds such as carbon dioxide, water, and innocuous end products. adapted from

U.S. Environmental Protection Agency, 2009

Biological agents are microorganisms (typically bacteria, fungi, or algae) or biological

catalysts, such as enzymes, able to enhance the biodegradation of a contaminated

environment.

Bioremediation is the process of enhancing the ability of microorganisms to convert

contaminants into biomass and innocuous end products by the addition of materials into

a contaminated environment to accelerate the natural biodegradation process.

Bioremediation agents are means biological agents and/or nutrient additives that are

not likely to cause additional harm, either alone or in combination with oil, to public health

or welfare or to the environment; that are deliberately introduced into a contaminated

environment to increase the rate of biodegradation and mitigate any deleterious effects

caused by the contaminant constituents. Bioremediation agents include microorganisms,

enzymes, and nutrient additives such as fertilizers containing bioavailable forms of

nitrogen, phosphorus and potassium. Bioremediation agents are not intended to be

collected and recovered from the environment.

Burning agents are means those additives that are not likely to cause additional harm,

either alone or in combination with oil, to public health or welfare or to the environment

and that improve the combustibility of the materials to which they are applied through

physical or chemical means. Burning agents are not intended to be collected and

recovered from the environment.

Chemical agents are means those elements, compounds, or mixtures that are not likely

to cause additional harm, either alone or in combination with oil, to public health or

welfare or to the environment; that are designed to facilitate directly or indirectly the

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removal of oil from a contaminated environment; and that mitigate any deleterious

effects. Chemical agent categories include burning agents, dispersants, herding agents,

sinking agents, synthetic sorbents, solidifiers, surface washing agents, and

bioremediation agents that consist of nutrient additives. Dispersants are also chemical

agents, but dispersants are likely to cause additional harm, either alone or in

combination with oil, to public health or welfare or the environment and are likely to

inhibit removal of oil from a contaminated environment.

Dispersants means those chemical agents that are typically mixtures of solvents,

surfactants, and additives; that are likely to cause additional harm, either alone or in

combination with oil, to public health or welfare or the environment; and that reduce the

oil-water interfacial tension and move the oil beneath the water surface by promoting

promote the temporary formation of small droplets of oil in the water column. by reducing

the oil-water interfacial tension; Dispersants are likely to inhibit removal of oil from a

contaminated environment acting to increase formation of oily plumes in the water

column, and sedimentation and deposition of oil to the bottom of a water body.

Dispersants are not intended to be collected and recovered from the environment.

Herding agents are substances means those chemical agents that are not likely to

cause harm, either alone or in combination with oil, to public health or welfare or to the

environment; and that are used to control the spreading of oil across a water surface.

Herding agents are intended to be collected and recovered from the environment.

Products are chemical or biological agents, burning agents, sorbents, and other spill

mitigating devices and substances that are manufactured using a unique composition or

formulation, as well as natural organic and inorganic sorbents in bulk form.

Sinking agents are substances means any chemical or biological agent, device, or

substance introduced into an oil discharge and irrespective of specific gravity that alone

or in combination with oil or any other product* deliberately for the purpose of

submerging facilitates or acts to facilitate transfer of oil from the water surface into the

water column, or retention of oil below the water surface, or submersion of the oil within

the water column or to the bottom of a water body. Sinking agents are not intended to be

collected and recovered from the environment.

* refers to our proposed inclusive definition of product.

Solidifiers are substances means those chemical agents that are not likely to cause

harm, either alone or in combination with oil, to public health or welfare or to the

environment; and that through a chemical reaction cause oil to become a cohesive

mass, preventing oil from dissolving or dispersing into the water column., and which

Solidifiers are intended to be collected and recovered from the environment.

Sorbents are means those inert, insoluble substances that readily absorb and/or adsorb

oil or hazardous substances,; that are not likely to cause additional harm, either alone or

in combination with oil, to public health or welfare or to the environment; and that are not

combined with or act as any other chemical or biological agent. Sorbents are intended to

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be generally collected and recovered from the environment. Sorbents may be used in

their natural bulk form or as manufactured products in particulate form, sheets, rolls,

pillows, or booms. Sorbents consist of:

(1) Natural organic substances (e.g., feathers, cork, peat moss, and cellulose fibers

such as bagasse, corncobs, and straw);

(2) Inorganic/mineral compounds (e.g., volcanic ash, perlite, vermiculite, zeolite, clay);

and

(3) Synthetic compounds (e.g., polypropylene, polyethylene, polyurethane, polyester).

Surface washing agents are means those substances that are not likely to cause

additional harm, either alone or in combination with oil, to public health or welfare or to

the environment; that separate oil from solid surfaces (e.g., beaches, rocks, metals, or

concrete) through a detergency mechanism; and that lifts and floats oil for collection and

recovery from the environment with minimal dissolution, dispersion, or transfer of oil into

water column. Surface washing agents are intended to be collected from the

environment.

b) Removed definitions

We support EPA’s proposal to remove definitions for surface collecting agents and

miscellaneous oil spill control agents.

c) Additional definitions for consideration

JUSTIFICATION – People are being exposed to dangerous chemicals (oil)

Oil: We find that oil causes many of same harms listed under the current definition of

pollutant, however the definition of pollutant is reserved for hazardous substances and

specifically exempts petroleum. This distinction between the definitions of oil and

pollutant is no longer accurate and dangerously misleading. We find this especially true

for UOG. Oil is a dangerous chemical and, as we will discuss later (see Subpart J,

Preauthorization Plan Development), we find that under the current rules, people are

being exposed to dangerous levels of dangerous chemicals (oil) during spill response.

Adverse effects of crude oil exposure on health of response workers, fishermen,

residents of oiled communities, and others were well known and established well before

the BP DWH disaster. The American Petroleum Institute published one of the earliest

literature reviews in 1985.

After the Exxon Valdez oil spill in 1989, Dr. Robert Rigg, a

former Alaska medical director for Standard Alaska (BP), warned,

“It is a known fact that neurologic changes (brain damage), skin disorders

(including cancer), liver and kidney damage, cancer of other organ

systems, and medical complications––secondary to exposure to––working

unprotected in (or inadequately protected) can and will occur to workers

exposed to crude oil and other petrochemical by-products. While short-term

I. R. Politzer, I. R. DeLeon, J. L. Laseter, Impact on Human Health of Petroleum in the Marine

Environment, American Petroleum Institute, Washington, DC, 1985.

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complaints, i.e., skin irritation, nausea, dizziness, pulmonary symptoms,

etc., may be the initial signs of exposure and toxicity, the more serious

long-term effects must be prevented.” He recommended pulling cleanup

crews “off the beaches—and out of the Sound—[to] avoid further tragedy in

the form of human suffering, illness and disease…”

In 1993, the industry Marine Spill Response Corporation, newly formed under the Oil

Pollution Act of 1990, addressed the chemical aspects of occupational health and marine

oil-spill response but significantly limited the review to exposures to crude oil only, not oil

spill response products.

The authors of the 1993 review then independently completed

a second review in 1999 to update their earlier report, eloquently stating, “Mists and

aerosols containing polynuclear aromatic hydrocarbons (PAHs) are, in principle, a

cancer risk…”

The authors limited their review to crude oil exposures.

As a result of comprehensive ecosystem studies conducted in the wake of the 1989

Exxon Valdez spill, scientists established that exposure to oil, specifically PAHs, causes

long-term harm to wildlife and ecosystem function, including endocrine abnormalities and

reproductive problems, immune system dysfunction, genotoxic effects, stunted or slowed

growth and skeletal deformities, and disruption of behavioral and social functions critical

for survival, among others. A 2003 synthesis, published in Science, signaled a paradigm

shift in the field of oil ecotoxicology. Oil was 1,000 times more toxic than thought in the

1970s: PAH levels of 1 to 20 parts per billion were found to sicken wildlife and reduce

entire populations of fish, birds, and mammals.

Also in 2003, a Yale study found a significant number of former EVOS workers self-

reported lingering symptoms characteristic of oil spill exposure.

These most frequently

reported symptoms included lingering respiratory issues, central nervous system issues

(such as headaches, mood swings, tingling appendages, brain fog), chemical

sensitivities, and blood disorders. Other issues included liver and kidney problems,

reproductive problems, skin problems, and immune suppression. The following year, an

extensive synthesis of the scientific literature conducted in the wake of the EVOS found

striking similarities in biological impacts to humans and wildlife from exposure to oil.

Robert Rigg, MD, Letter to Cordova District Fishermen United, May 13, 1989, Cordova, AK. Also in City

of Cordova, AK, Cordova Fact Sheet:1989 1[29].

M. G. Holliday, J. M. Park, Occupational Health Implications of Crude Oil Exposure: Literature Review

and Research Needs, Technical Report 93-007, Marine Spill Response Corporation, Washington,

DC, 1993.

Park, J. M. and M. G. Holliday, Occupational-health aspects of marine oil spill response, Pure Applied

Chemistry, 1999, 71(1):113–133.

Peterson, et al., 2003, Long-term Ecosystem Responses to the Exxon Valdez Oil Spill, Science

302:2082–86.

O’Neill, Annie, 2003, Self-reported exposures and health status among workers from the EVOS

cleanup. Master’s thesis M. P. H. Yale University, Department of Epidemiology and Public Health.

Available as PDF on www.rikiott.com

Ott, Riki, 2004, Sound Truth and Corporate Myths: The Legacy of the Exxon Valdez Oil Spill (Dragonfly

Sisters Press: Cordova, Alaska).

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In 2011, a literature review of seven previous oil spills categorizes key human health

impacts and restates the well-established facts: “Acute effects have included: respiratory,

eye, and skin symptoms; headache; nausea; dizziness; and tiredness or fatigue. Chronic

effects have included: psychological disorders, respiratory disorders, genotoxic effects,

and endocrine abnormalities.”

Significantly, widespread application of dispersants was

not conducted during any of the spills included in this review.

UOG is proving to be even more hazardous than conventional oil. Tar sands oil is

concentrated in heavy metals and the PAHs identified as bad actors from the post-

EVOS science. Extremely volatile oil or “light tight oil” produced by hydraulic fracturing

is concentrated in lighter, more volatile aromatic hydrocarbons.

PAHs and VOCs

contain some of the most deadly hydrocarbons to humans and environment.

UOG are made even more deadly by the addition of industrial solvents in the form of

diluents or drilling fluids, which target the same body organs and systems as

dispersants. Refined petrochemical-based solvents are well known as human health

hazards.

The oil industry mixes large volumes of oil-based solvents and other

chemicals with oil, as dispersants to break up oil slicks, as diluents to thin tar sands for

transportation,

and as fracking fluids to extract oil from oil-bearing shale. As noted

under Dispersants above, these refined petroleum-based solvents share similar

properties that facilitate their movement through oil and also into the bodies of humans

and other organisms.

Not surprisingly, people exposed to UOG activities such as the dilbit spills in Michigan

and Arkansas and fracking activities and/or spills are reporting symptoms characteristic

of exposure to crude oil and/or oil-based solvents, similar to the symptoms reported

during the BP DWH and other oil disasters.

100

Studies on human health impacts of UOG

have found increased cancer rates, prenatal developmental problems, and a range of

Barry Levy and William Nassetta, “The Adverse Health Effects of Oil Spills: A Review of the Literature

and a Framework for Medically Evaluating Exposed Individuals,” Int J Occup Environ Health 2011;

17:121–167.

Gold, Russell, 2014, Bakken shale oil carries high combustion risk, Wall Street Journal, Feb. 23, 2014.

http://www.wsj.com/articles/SB10001424052702304834704579401353579548592

Schlettler, Ted, Gina Solomon, Maria Valenti, and Annette Huddle, 1999, Generations at Risk:

Reproductive Health and the Environment (MIT Press).

Song, Lisa, 2012, A Dilbit Primer: How it is different from conventional oil, Inside Climate News, June

26. http://insideclimatenews.org/news/20120626/dilbit-primer-diluted-bitumen-conventional-oil-tar-

sands-Alberta-Kalamazoo-Keystone-XL-Enbridge

100

Bailey, Diane and Danielle Droitsch, 2014, Tar sands crude oil: Health effects of a dirty and destructive

fuel, NRDC. http://www.nrdc.org/energy/tar-sands-health-effects.asp

Earthworks, 2013, Reckless Endangerment in the Eagle Ford Shale: Government fails, public health

suffers and industry profits from the shale oil boom.

http://www.earthworksaction.org/files/publications/FULL-RecklessEndangerment-sm.pdf

Fox, Josh, producer, 2010, Gasland. http://one.gaslandthemovie.com/home

Fox, Josh, producer, 2013, Gasland 2. http://www.gaslandthemovie.com

Jamail, Dahr, 2011, The pipeline of ‘poison’. Al Jazeera English, Oct. 17.

http://www.aljazeera.com/indepth/features/2011/10/2011101151776808.html

Savage, Karen, 2013, No relief in sight for Alabama community sickened by chemical spill, Bridge the

Gulf. http://leanweb.org/rss/1/Page-2

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cardiovascular, dermal, gastrointestinal, neurological, ocular, renal, and respiratory

impacts.

101

Children and developing fetuses are especially vulnerable to oil and petrochemical

exposures.

102

Oil contains endocrine disrupters, neurotoxins, teratogens that disturb the

growth and development of fetuses, power carcinogens and mutagens, and more. Day

care and elementary school children in Kalamazoo, Michigan, and Mayflower,

Arkansas, became ill with symptoms characteristic of oil exposure (headaches, nausea,

vomiting) after the Enbridge and ExxonMobil’s Pegasus tar sands spills.

103

101

Colburn, Theo, The Endocrine Disruption Exchange: health effects of chemicals in natural gas

operations http://endocrinedisruption.org/chemicals-in-natural-gas-operations/chemicals-and-health

Faulkner County Citizens Advisory Group, 2013, Independent air tests at Mayflower Hill, a report.

http://www.gcmonitor.org/article.php?id=1672

Huffling, Katie, 2014, “Susceptibility During Pregnancy: What You Need to Know,” Alliance of Nurses for

Healthy Environments, webinar hosted by the Center for Environmental Health on May 5, 2014.

http://www.ceh.org/news-events/events/content/fracking-maternal-health-what-it-means-for-your-

family/

Kwiatkowski, Carol, 2014, “Natural Gas Development, Public Health, and Protecting the Most Vulnerable

Populations,” The Endocrine Disruption Exchange, webinar hosted by the Center for Environmental

Health on April 21, 2014. http://www.ceh.org/news-events/events/content/fracking-maternal-health-

what-it-means-for-your-family/The Endocrine Disruptor Exchange maintains a publicly available

database, papers, lectures, and other material on the potential health effects of chemicals used

during natural gas operations, including fracking. http://endocrinedisruption.org/chemicals-in-natural-

gas-operations/chemicals-and-health

Michigan Dept. of Community Health, 2010, Acute Health Effects of the Enbridge Oil Spill, rev. Dec. 20,

2010.

Paulson, Jerome, 2014, “Unconventional Natural Gas Extraction and Special Vulnerabilities for Children,”

webinar hosted by the Center for Environmental Health on April 21, 2014. http://www.ceh.org/news-

events/events/content/fracking-maternal-health-what-it-means-for-your-family/

Stanbury, Martha, et al., 2010, Acute Health Effects of the Enbridge Oil Spill, Michigan Dept. of

Community Health, rev. Dec. 20, 2010.

Tenenbaum, David, 2009, Oil Sands Development: A Health Risk Worth Taking? Environ Health

Perspect. Apr 2009; 117(4): A150–A156. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2679626/

102

Jung, Suk-Chul, et al., 2013, Respiratory effects of the Hebei Spirit oil spill on children in Taean,

Korea, Allergy Asthma Immunol Res. 2013 Nov; 5(6):365–370. Doi:

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3810542/

Sook, Hyun, et al., 2013, Mothers and children’s environmental health study in Hebei Spirit oil spill,

http://ehp.niehs.nih.gov/isee/p-3-27-19/

Kim, Young-Min, et al., 2013, Burden of disease attributable to the Hebei Spirit oil spill in Taean, Korea,

BMJ Open, Sept 20, 2013; 3(9):e003334. http://www.ncbi.nlm.nih.gov/pubmed/24056482

Mohan, Geoffrey, 2015, Air pollution takes a double toll on babies’ brains, Los Angeles Times, March 25,

2015. http://www.latimes.com/science/sciencenow/la-sci-sn-air-pollution-baby-brains-20150324-

story.html

Peterson, Bradley, et al., 2015, Effects of prenatal exposure to air pollutants (polycyclic aromatic

hydrocarbons) on the development of white brain matter, cognition, and behavior in later childhood,

JAMA Psychiatry, March 25, 2015. doi:10.1001/jamapsychiatry.2015.57.

http://archpsyc.jamanetwork.com/article.aspx?articleid=2205842

103

McAllister, Edward, Insight: Mayflower, meet Exxon: When oil spilled in an Arkansas town, Apr 11,

2013, Reuters, http://www.reuters.com/article/2013/04/11/us-exxon-spill-mayflower-insight-

idUSBRE93A0PI20130411

Brune, Michael, 2010, We are the Kalamazoo, Huffington Post, July 20, 2012.

http://www.huffingtonpost.com/michael-brune/kalamazoo-river-oil-spill_b_1691045.html

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Occupational and Environmental Medicine health care professionals and researchers

realize that people exposed to low levels of oil and oil-based solvents like dispersants,

diluents, and fracking fluids over longer durations of time may experience the same

symptoms and illnesses of workers exposed to higher levels of shorter durations.

However, OEM and treatment for industrial oil and chemical exposures remains a

specialty field outside the knowledge of most general healthcare practitioners. The

public at large remains largely uninformed about the health risks from oil exposures and

so is unprepared to protect itself during oil spills and oil spills-turned-chemical disasters

by wide-scale, extended use of petrochemical agents.

104

About 135 million people – 42 percent of Americans – live in crude oil corridors. That is,

within 20 miles of coastal oil refineries, Great Lakes oil depots, and shipping routes

along the Mississippi River. Millions more people vacation in these regions. When oil

spills contaminate fresh water supplies – or explode and incinerate people’s home or

entire neighborhoods or business districts, potentially millions of people could need

alternative water supplies, evacuation, temporary housing, health care specific to oil and

petrochemical exposure, and more. This brings us to our next and last point in Subpart

A, but first ––

In summary, oil spill disaster prevention and response planning has not kept current

with the emerging risks to people and the environment from oil, especially

unconventional oil and gas. Planners who fail to account for the true hazardous nature

of oil will not adequately prepare to minimize harm from oil; they will fail to protect

workers, public health and welfare, and the environment during spill response – as is

currently the case (see Preauthorization Plan Development). Contingency planning

starts with accurately identifying the types, and hazardous natures, of oil and products

so planners, responders, and the public can make informed decisions to minimize harm.

We request that EPA revise the definition of oil to accurately indicate the current state of

scientific knowledge regarding harm from oil exposure to people and the environment.

Remove or removal: We are concerned that the current definition of “remove or

removal,” as defined by section 311(a)(8) of the Clean Water Act, is no longer adequate

for oil spills. We find elements of the definition reserved for hazardous substances now

also applies to oil, given the hazardous nature of oil, the current use of hazardous and

toxic materials on oil spills, and EPA’s recognition in this rulemaking that oil and products

combined may be more toxic than the oil alone.

If oil is a hazardous substance nature, then oily waste is also a hazardous substance by

nature. However, in yet another political move, EPA regulations exempt oil exploration

and production waste from hazardous handling standards created by the Super Fund

law. EPA later acknowledged that, "although [oiled debris] are relieved from regulation

as hazardous wastes, the exemption does not mean these wastes could not present a

hazard to human health and the environment if improperly managed." During the BP

DWH disaster, people in Gulf Coast communities – especially economically

104

Kim, Young-Min, et al., 2013, Burden of disease attributable to the Hebei Spirit oil spill in Taean,

Korea, BMJ Open, Sept 20, 2013; 3(9):e003334. http://www.ncbi.nlm.nih.gov/pubmed/24056482

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disadvantaged communities – found oily waste was being taken to public municipal and

some private landfills.

105

Landfills leak and are not fit for oil and other substances that

are hazardous by nature.

UOG is more likely to spill than conventional oil. Crude-by-rail shipments terminating in

the U.S. in 2010 have increased by 5,600 percent over the five-year average from 2005

through 2009, and this increase is largely due to unconventional oils.

106

Regarding tar

sands crude, a report by Cornell University Global Labor Institute found diluted bitumen

contain not only higher concentrations of hazardous materials and toxins than are found

in conventional crude, it is also has higher concentrations of corrosive and abrasive

substances, making it more likely to spill.

107

The concentration of silica quartz particles

in tar sands is similar to that in sand-blasters.

108

Cornell reported, “pipelines transporting

diluted bitumen tar sands oil have a higher frequency of spills than pipelines carrying

conventional crude. Between 2007 and 2010, pipelines transporting diluted bitumen tar

sands oil in the northern mid-west spilled three times more oil per mile than the national

average for conventional crude oil.”

109

Further, in its first year, in its first year, “the U.S.

section of the Keystone pipeline had a spill frequency 100 times greater than Trans-

Canada forecast.”

110

105

Schor, Elana, 2010, How has BP’s oily waste escaped ‘hazardous’ label?, New York Times, July 20,

2010. http://www.nytimes.com/gwire/2010/07/20/20greenwire-how-has-bps-oily-waste-escaped-

hazardous-label-54942.html

106

American Association of Railroads, 2013, Moving Crude Oil by Rail, a report, December 2013.

https://www.aar.org/keyissues/Documents/Background-Papers/Crude-oil-by-rail.pdf

Federman, Adam, 2014, Hazardous Cargo: Shipping Highly Flammable Bakken Crude Oil by Rail, Earth

Island Journal, summer 2014.

http://www.earthisland.org/journal/index.php/eij/article/warning_highly_flammable/

107

Skinner, Lara and Sean Sweeney, 2012, The Impact of Tar Sands Pipeline Spills on Employment and

the Economy, a report by Cornell University Global Labor Institute.

https://www.ilr.cornell.edu/sites/ilr.cornell.edu/files/GLI_Impact-of-Tar-Sands-Pipeline-Spills.pdf

Stansbury, John S., 2011, Analysis of frequency, magnitude, and consequence of worst case spills from

the proposed Keystone XL Pipeline. According to Stansbury, spill data for diluted bitumen pipelines

compiled by PHMSA suggest that 91 major spills would occur from Keystone XL over a 50-year

period. In Skinner and Sweeney, 2012, Impact of Tar Sands Pipelines Spills.

http://watercenter.unl.edu/downloads/2011-Worst-case-Keystone- spills-report.pdf

108

Ibid.

109

North Dakota, Minnesota, Wisconsin, and Michigan have approximately 5,475 miles of crude pipeline,

or about 10.9 percent of the U.S. total. PHMSA. State mileage by commodity statistics. 2011.

primis.phmsa.dot.gov/comm/reports/safety/mi_ detail1.html?nocache=8335#_outerPanel_tab_4.

Bureau of Transportation Statistics. Table 1-10: U.S. oil and Gas Pipeline mileage. 2009.

www.bts.gov/publications/national_transportation_statistics/html/table_01_10.html. Meanwhile,

between 2007 and 2010 crude pipelines in North Dakota, Minnesota, Wisconsin, and Michigan spilled

38,220 barrels of crude, or 30.3% of the 125,862 barrels of crude spilled in the United States.

110

TransCanada projected a 1.4 spill per decade rate for Keystone 1: Pipeline risk assessment, Pg. 3.1,

see: http://www.

cardnoentrix.com/keystone/project/eis/appendix%20L_Pipeline%20Risk%20assessment.pdf And

there have been at least 14 spills from the Keystone pipeline in the U.S. U.S. State Department, final

environmental impact statement (FEIS), Potential Releases, Section 3.13-11.

http://www.keystonepipelinexl.state.gov/clientsite/keystonexl.nsf/19_KXL_feiS_Sec_3.13_Potential_R

eleases.pdf?openfileResource

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To further complicate matters, PHMSA recently issued a safety advisory noting that

pipeline flow reversals, product changes, and conversion to service may have a

potentially significant impact on pipeline integrity.

111

PHMSA noted it has received a

large number of recent or proposed flow reversals, product changes, and conversion to

service projects. Much of this involves transportation of tar sands crude. At least two

pipeline spills occurred in such repurposed pipelines. In September 2013, the Tesoro

High Plains Pipeline leaked an estimated 20,000 barrels of Bakken oil.

112

It was

subsequently discovered that the location of pressure and flow monitoring equipment

had not been changed to account for the reversed flow. Exxon’s Pegasus Pipeline failed

on March 29, 2013, releasing about 5,000 barrels of diluted bitumen into a

neighborhood, the municipal wastewater treatment system, and public waterways in

Faulkner County, Arkansas.

113

The pipeline flow had been reversed in 2006. At the

time, PHMSA officials did not consider pipeline reversal a safety issue, stating, “As far

as reversing the flow of a pipeline, it is not a safety issue.”

114

The more recent safety

advisory indicates PHMSA has “reversed” its previous statement.

Regarding Bakken and other flammable crude oil, the increased accident rate of crude

rail car derailments and fiery explosions near or, most recently, in populated areas has

led to fines for violations of safety codes, and calls from first responders and others for

stronger safety measures.

115

In February 2014, the US DOT issued an emergency order

requiring shippers to test oil product from the Bakken region for proper hazard

classification, while also requiring transport of crude oil in the most sturdy state-of-art

tanker cars. In May 2014, DOT issued another emergency order requiring railroads to

disclose the expected routes across counties and states, volume of oil being shipped,

111

Pipeline Hazardous Materials and Safety Administration, Pipeline Safety: Guidance for Pipeline Flow

Reversals, Product Changes and Conversion to Service, Notice: Issuance of Advisory Bulletin, Sept.

18, 2014. https://www.federalregister.gov/articles/2014/09/18/2014-22201/pipeline-safety-guidance-

for-pipeline-flow-reversals-product-changes-and-conversion-to-service

112

Gebrekidan, Selam, Tesoro detected anomalies on North Dakota line before spill, Reuters.com, Oct.

17, 2013. http://www.reuters.com/article/2013/10/17/us-tesoro-spill-northdakota-

idUSBRE99G11Q20131017

113

Caplan-Bricker, Nora, 2013, This is what happens when a pipeline bursts in your town,

114

Cushman, John, 2013, Federal rules don’t control pipeline reversals like Exxon’s burst Pegasus, Inside

Climate News, Apr. 3, 2013. http://www.reuters.com/article/2013/10/17/us-tesoro-spill-northdakota-

idUSBRE99G11Q20131017

115

Brown, Matthew and Joan Lowy, AP, 2014, Oil train wrecks spur railroad safety measures, SFGate,

2/22/14. New Republic, Nov. 18, 2013. http://www.newrepublic.com/article/115624/exxon-oil-spill-

arkansas-2013-how-pipeline-burst-mayflower

Brown, Matthew and James MacPhearson, AP, 2014, Warning issued about oil shipped from ND, Mont.,

Yahoo News, 1/3/14. http://news.yahoo.com/warning-issued-oil-shipped-nd-mont-185942105.html

Gold, Russell, and Laura Stevens, 2014, US issues emergency testing order to crude oil shippers, The

Wall Street Journal, Feb. 26.

http://online.wsj.com/news/articles/SB10001424052702303880604579405412862500426

Karnowski, Steve, AP, 2014, Lawmakers: Minn. needs stronger oil spill response, Statesman.com,

2/12/14. http://www.statesman.com/ap/ap/environment/minn-bill-to-protect-against-oil-

derailments/ndLpX/

MacPherson, James, N.D. oil leaks go unreported, Associated Press, Dec. 27, 2013.

McNish, Jacquie and Grant Robertson, 2013, The deadly secret behind the Lac Megantic inferno, The

Globe and Mail, 12/3/13. http://www.theglobeandmail.com/report-on-business/industry-news/energy-

and-resources/the-hazardous-history-of-the-oil-that-levelled-lac-megantic/article15733700/

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and a responsible party.

116

DOT sent the revised safety plan to the White House in

February 2015,

117

however the fiery oil train derailment in West Virginia makes the new

rules obsolete before they were even adopted. All 19 of the tank cars that caught fire

were CPC 1232 – the newer, supposedly tougher, safer version of the DOT-111 cars

that are being phased out.

118

In summary, we have learned from spills of UOG that they are happening with increased

frequency; that people can be killed or injured; that homes can be incinerated or

rendered unfit to live and destroyed because of contamination by strong oil vapors

119

;

that municipal or private water supplies may be at risk from contamination and suddenly

unavailable – perhaps for a long time if the spill occurs during icy conditions.

120

We need EPA to revise the definition of “remove or removal” to prepare response

measures that have already proven to be necessary when dealing with UOG spills on

land and in fresh water bodies, especially those that serve as drinking water. Specifically,

we need provisions for temporary evacuation and housing, alternative water supplies,

waste disposal plans to accommodate the hazardous nature of oil, and disaster relief

funds made available to victims of oil disasters, as well as victims of spills of hazardous

substances.

OUR RECOMMENDATIONS

Oil as defined by section 311(a)(1) of the CWA, means oil of any kind or in any form,

including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with

wastes other than dredged spoil. Oil, as defined by section 1001 of the OPA means oil of

any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse,

and oil mixed with wastes other than dredged spoil, but does not include petroleum,

including crude oil or any fraction thereof, which is specifically listed or designated as a

hazardous substance under subparagraphs (A) through (F) of section 101(14) of the

Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.

116

HazMat staff, 2014, US issues emergency order for crude-by-rail: Emergency orders protect the

public, environment from harm created by imminent hazard, HazMat Management, Daily News, Feb.

27. http://www.hazmatmag.com/news/us-issues-emergency-order-for-crude-by-

rail/1002936904/?&er=NA

Lowy, Joan, AP, 2014, Government issues emergency order on oil trains, Associated Press, May 8, 2014.

http://www.houstonchronicle.com/business/energy/article/Government-issues-emergency-order-on-

crude-oil-5461208.php

117

Rucker, Patrick, 2015, Oil train accident brings call for tougher U.S. safety rules, Reuter, Feb. 17,

2015. http://www.reuters.com/article/2015/02/17/us-usa-train-safety-idUSKBN0LL24920150217

118

McAllister, Edward, 2015, Derailed CSX train in West Virginia hauled newer-model tank cars, Reuters,

Feb. 17, 2015. http://www.reuters.com/article/2015/02/17/us-usa-train-derailment-csx-

idUSKBN0LK1ST20150217

119

Harris, Emily, MPH, 2015, What’s the Plan? Spill voices calling for stronger oil spill response, webinar

presentation hosted by ALERT project.org, April 8, 2015.

https://attendee.gotowebinar.com/recording/5206338556313987073

120

Bosse, Scott, 2015, Pipeline company gives up on cleaning its oil spill, The River Blog, American

Rivers, Feb. 6, 2015 update. http://www.americanrivers.org/blog/yellowstone-oilspill-proving-difficult-

to-clean-up/

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9601) and which is subject to the provisions of that Act. For the purposes of the NCP,

this term shall include, but not be limited to, oil of any kind or in any form which after

release into the environment and upon exposure to, ingestion by, inhalation by, or

assimilation into humans or any other organisms, either directly from the environment or

indirectly by ingestion through food chains, will or may reasonably be anticipated to

cause death, disease or infection, behavioral abnormalities, cancer, genetic mutation,

endocrine disruption or other physiological malfunctions (including malfunctions in

reproduction) or physical deformations, in such humans or their children, or in organisms

or their offspring.

Remove or removal as defined by section 311(a)(8) of the CWA, refers to containment

and removal of oil or hazardous substances from the water and shorelines or the taking

of such other actions as may be necessary to minimize or mitigate damage to the public

health or welfare of the United States (including, but not limited to, fish, shellfish, wildlife,

public and private property, and shorelines and beaches) or to the environment. For the

purpose of the NCP, the term also includes monitoring of action to remove a discharge

action to assess, evaluate, and monitor the release or threat of oil and any agents or

substances; and action to treat and dispose of recovered oil and oil-contaminated

material as hazardous wastes. The term includes, in addition, without being limited to,

security fencing or other measures to limit access, provision of alternative water supplies,

temporary evacuation and housing of threatened individuals not otherwise provided for,

action taken under section 104(b) of CERCLA, post-removal site control, where

appropriate, and any emergency assistance which may be provided under the Disaster

Relief Act of 1974. For the purpose of the NCP, the term also includes enforcement

activities related thereto. As defined by section 101(23) of CERCLA… [rest unchanged].

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SUBPART J –– USE OF DISPERSANTS AND OTHER CHEMICALS

Title of Subpart J

JUSTIFICATION

We find this title inaccurate and somewhat misleading. There is a redundant emphasis

on dispersants. Dispersants are chemical agents that in their current formulations,

arguably, do not mitigate spill impacts (see Dispersant definition). There is no mention

of biological agents, substances such as sorbents that are not considered to be agents,

or ignition devices that are used with burning agents.

RECOMMENDATION (edits)

We recommend using language consistent with the proposed language in §300.900(c)

as follows: Subpart J – Use of Dispersants, and Other Chemicals and Biological Agents

and Other Spill Mitigating Devices and Substances

§300.900 General.

JUSTIFICATION for paragraph (a) (edits)

We find this paragraph to be vastly improved from the current rules, but we are

concerned that one key phrase has been left out.

Under the Federal Removal Authority, the President is bound to “ensure effective and

immediate removal of a discharge, and mitigation or prevention of a substantial threat of

a discharge, of oil or a hazardous substance…” Section 3100(c)(1)(A). The sole focus of

this section is to remove and mitigate or prevent harm from the oil or hazardous

substance itself. It implies that any method may be used to achieve the stated purpose.

However, the President has to prepare a National Contingency Plan for removal of oil

and hazardous substances and, as part of that plan, a schedule identifying agents and

substances, if any, that may be used on oil spills; the waters in which such agents and

substances may be used; and the quantities of agents and substances “which can be

used safely in such waters” (emphasis added). Section 311(d)(2)(G).

We find the phrase “if any” important because it implies that not just any product may be

use, but rather only those in certain waters, “which can be used safely in such waters.”

The latter phrase is twice stated in law and worth repeating in the rules, because it

modifies the goal of removal and mitigation or prevention of oil or hazardous substances

from using any method or product to using only methods and products that can be used

safely in such waters. The word “can” denotes ability, making this word key in preparing

a Schedule to identify not only what products “may“ be used (denoting permission), but

the products that “can”; i.e., have the demonstrated ability, be used safely. Taken

together, this phrase is the basis for all the screening and environmental monitoring

tests, and the process to remove products that are found to be unsafe; i.e., do more

harm. We interpret this phrase as a directive to do no more harm to the waters and

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Docket ID No. EPA–HQ–OPA–2006–0090

adjacent shoreline or to the aquatic environment and human life in the vicinity of the

spill.

In short, we support restating the three duties delegated to EPA by the President,

including these key phrases. We also recommend using language to describe the

agents and substances that is consistent with the title for reasons stated above.

RECOMMENDATION for (a) (edits)

Section 311(d)(2)(G) of the CWA requires that EPA prepare a schedule of dispersants,

other chemicals and biological agents and other spill mitigating devices and substances,

if any, that may be used in carrying out the NCP; and the waters in which such agents,

devices, and substances may be used; and quantities in which they which may can be

used safely in such waters. This subpart establishes a schedule identifying chemical

and biological agents and other spill mitigating devices and substances, and procedures

that, when taken together, identify the waters and quantities in which such dispersants,

other chemicals agents or other spill mitigating devices and substances may can be

used safely.

JUSTIFICATION for (c)

For reasons stated above for paragraph (a), we find it necessary to state that this

paragraph applies only to agents and substances that may be used to remove, control

or otherwise mitigate oil discharges, providing they can be used safely. Further, we

recommend specifically stating that use must be consistent with the provisions of

Subpart J.

RECOMMENDATION for (c) (edits)

This subpart applies to the use of chemical and biological agents as defined in Subpart

A of this part, or other substances that may be used to remove, control, or otherwise

mitigate oil discharges, providing they can be used safely, consistent with the provisions

of Subpart J.

§300.910 Authorization for Agent Use.

“One of the things we complained about the most was the rampant use of the Coast

Guard to do what BP wanted. That was out of the box… The government and BP

claimed dispersants were not used near shore, but oil slicks that were reported near

shore “disappeared” overnight. Oil don’t leave that quick. Microbes don’t eat it that

quick. Trust me.” ~ George Barrisch, Louisiana fisherman

121

“The Coast Guard was not there to do what was best for the waterways, the birds, or

the people. They were there to cover BP’s butt.” ~ Billy Nungesser, Plaquemines Parish

president

121

Hopkins, Bryan, producer, 2013, Dirty Energy. Interviews with George Barrisch, Billy

Nungesser, and Aaron Viles).

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“The government and business collusion has been so troubling in this. The way the oil

spill acts and response plans are written, they leave BP with far too much power. The

government was basically acting like security for BP. The Coast Guard, every agency,

seemed to be deferring to BP. BP’s messaging is what the public is hearing.” ~ Aaron

Viles, Gulf Restoration Network

JUSTIFICATION for lead paragraph

EPA considered language to it make clear that the EPA Administrator and senior EPA

NRT representative and their delegatees have existing authority under section

311(d)(2)(G) of FWPCA and Executive Order 12777, along with the OSC, to make

decisions to authorize use, quantity used, duration of use, and limitations on use,

including cessation of use, for any chemical or biological agent or other spill mitigating

devices and substances. However, the Agency decided that situations, in which it may

have to exert authority over the On Scene Coordinator (OSC), were rare and possibly

limited to such events as a spill of national significance or extended duration. The

Agency decided that this is an existing authority that did not need to be reiterated in the

rules. Therefore, the Agency did not propose a regulatory amendment to clarify the EPA

Administrator’s authority, but it is requesting comment on this issue.

We find the Agency’s decision to not clarify the Administrator’s authority surprising,

given the public perception of uncertainty that clouded the Administrator’s existing

authority during the BP DWH disaster, and the precedent set by the manner in which

the uncertainty was resolved. Specifically, we are referring to the widespread public

perception that the FOSC – the US Coast Guard – was in charge and directing

response efforts at the whim and will of the spiller. Supporting evidence relative to agent

use is as follows. (For other examples, see Suggestions for Future Rulemakings,

Subpart B.)

On May 20, 2010, EPA directed BP to identify within 24 hours, and to begin using within

72 hours, less toxic alternatives to the Corexit dispersants that had already been used

for nearly a month.

122

EPA stated concerns about quantities of dispersants being used,

extended use, and scientific uncertainty about underwater use and long-term effects on

aquatic life. BP supplied a short list as requested – and went right on using Corexit 9500

at the surface and Corexti 9527 at the wellhead, saying it had not conducted

independent tests to evaluate the issue. Although EPA and the Coast Guard stated this

response was insufficient,

123

EPA started its own testing and evaluations.

On May 26, 2010, EPA ordered BP to reduce the total amount of dispersant applied to

122

US EPA, 2010, News Releases – BP spill, EPA: BP Must Use Less Toxic Dispersant, May 20,

2010.

http://yosemite.epa.gov/opa/admpress.nsf/9cee789b9acd641685257720005951b7/0897f55bc

6d9a3ba852577290067f67f!OpenDocument

123

EPA, 2010, Letter from EPA Administrator Lisa Jackson to David Rainey, Vice President of Gulf

of Mexico Exploration, BP Exploration and Production, May 26, 2010.

http://www.epa.gov/bpspill/dispersants.html#directives

http://www.epa.gov/bpspill/dispersants/Rainey-letter-052610.pdf

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the minimum amount possible with the overall goal of reducing dispersant application by

75% from the maximum daily amount used.

124

Specifically, EPA’s directive mandated

that BP “eliminate the surface application of dispersants” except in rare cases where

there may have to be an exemption.” To obtain an exemption, BP had to submit a

written request providing justification to the FOSC – the USCG – who would have to

approve the request and volume of dispersant prior to initiating use. EPA also limited

subsea application to no more than 15,000 gallons a day. Records obtained

subsequently by Congressman Ed Markey, chair of the House Energy and Environment

Committee, revealed that BP went right on using the Corexit dispersants, near daily,

with the Coast Guard’s approval – sometimes retroactively. In no instance was a

request by BP to use dispersants denied. In all, 74 exemptions were approved in 48

days, of which all but 10 were fully approved, despite EPA’s order.

125

It was abundantly clear to the public that the Federal OSC/ USCG exercised authority

over EPA by ignoring EPA’s order and concerns regarding extended dispersant use and

subsurface dispersant use. In hindsight, it is also clear that authority uninformed by

science – and biased by the spiller’s conflict of interest – has led to long-term injury to

the Gulf ecosystem and the exposed human populace (see Dispersants). Most

importantly and unfortunately, precedent was set for future spills, where the

FOSC/USCG-spiller block may and can override EPA’s existing authority.

In short, we request that EPA specifically adds the EPA Administrator and the senior

EPA representative to the NRT (e.g. NRT Chair) to § 300.910(a) and other paragraphs

as needed to clarify the Administrator’s authority.

RECOMMENDATION for lead paragraph (edits)

Use of chemical or biological agents and other spill mitigating devices and substances

in response to oil discharges to waters of the U.S. or adjoining shorelines must be

authorized by the OSC in accordance with the provisions of this section, unless

otherwise directed by the Administrator in accordance with concurrent authority under

section 311(d)(2)(G) of FWPCA and Executive Order 12777:

§300.910

GENERAL OVERVIEW & JUSTIFICATION FOR RECOMMENDATIONS IN ALL

SUBPARAGRAPHS OF THIS SECTION

The subparagraphs of §300.910 are concerned with three critical issues, namely the

authorization, purpose, and scope of preauthorization plans. However, preauthorization

124

EPA, 2010, Dispersant monitoring and assessment directive, May 26, 2010.

http://www.epa.gov/bpspill/dispersants/directive-addendum3.pdf

125

Fox, James, 2014, Pretty Slick, a documentary film distributed by Specialty Studios/ Video

Project.

Wald, Matthew, 2010, Despite rule, BP used dispersant, panel finds, New York Times, July 31,

2010. http://www.nytimes.com/2010/08/01/science/earth/01dispersants.html?_r=0

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plans are, or should be, the result – the end product – of the comprehensive planning

that goes into developing ACPs. Curiously, the comprehensive history of laws and

regulations provided with this rulemaking fails to mention the history of ACPs as relating

to preauthorization plans, Area Committees, Citizens’ Advisory Councils, and federally

recognized Tribal governments. [FR 80(14):3383, IV.A.] We find this legislative and

regulatory history of citizens’ engagement in the contingency planning process, and

subsequent interpretation and implementation by EPA, instructive and necessary to

understand the proposed rule changes.

Legal History of Citizens’ Engagement in the NCP

The 1972 Amendments to the Clean Water Act tasked the President with issuing

regulations to establish criteria for the development and implementation of local and

regional oil contingency plans. §311(j)(1)(b). This President tasked the EPA and the

USCG with providing OSCs, empowered with the authority of the President, to fulfill this

duty. [Executive Order 11735 Sec. 5(b)(4)]

From this, we find that the three levels of organization under the NCP – federal, state,

and local – were created in statute; that the authority to develop and implement the local

and regional c-plans is vested in OSCs by Executive Order; and that neither of these

can be changed by regulation.

However, we also find that before the EVOS, the NCP did not fully implement the law.

It had only two levels of organization: a National Response Team, composed of then 15

federal agencies tasked with developing and implementing the NCP, and helping

coordinate, guide, and support the Regional Response Teams (RRTs); and RRTs,

composed of an agency membership mirroring that of the NRT, and state and local

representation, tasked with developing and implementing the Regional Contingency

Plans (RCPs).

After EVOS, implementation of additional and/or missing levels of planners and

responders was required under the Oil Pollution Act of 1990. Specifically, OPA90

established Area Committees and Area Contingency Plans (ACPs) and required the

President to designate areas for which Area Committees are established under the

CWA. [33 USC §4202(b)(1)] The intent in specifically implementing the third and local

level of planning was to ensure “that all navigable waters, adjoining shorelines, and

waters of the exclusive economic zone are subject to an Area Contingency Plan…” [33

USC §4202(b)(1)(A)]

From this, we find that this statute gives broad authority to Area Committees and

ensures, as noted by EPA in this rulemaking, that ACPs are developed by local people

most familiar with and best able to “evaluate the environments within a jurisdiction and

establish… protection priorities.” [80 CFR, p. 3387, V(C)(2)(a)]

In keeping with this requirement to engage citizens at the local level, OPA90 also

established two Demonstration Programs in Alaska in the regions directly impacted by

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the EVOS – Oil Terminal and Oil Tanker Environmental Oversight and Monitoring

Demonstration Programs. [33 USC §5002(b)] Each program consisted of an industry-

government Association and, separately, a Regional Citizens’ Advisory Council or

RCAC. OPA90 established that that Alaska RCACs are composed of delegates from

stakeholders other than the oil industry and from local municipalities, all appointed by

the Alaska Governor. [33 USC §5002(d)(1)]

In justifying these programs, Congress found that industry-government complacency

was one of the main factors contributing to the EVOS and that one way to combat this

complacency was to involve citizens in the process of preparing, adopting, and revising

oil spill contingency plans. Congress reasoned that, by thus engaging local citizens, the

process would foster long-term partnerships of industry, government, and local

communities based on trust to oversee compliance and deal with environmental

concerns through consensus rather than confrontation. [33 U.S.C. §5002(a)(2)(D), (G),

and (H)] Congress also reasoned that infusing local knowledge and practicalities into

the theories and concepts that dominate agency planning and response would result in

more realistic, practical, and functional plans. Congress also found that “similar

programs should eventually be established in other major crude oil terminals in the

United States…” and other places “where the safe transportation of crude oil is a

national problem (emphasis added).” [33 USC §5002(a)(2)(J)]

From this, we find that, based on lessons learned from the EVOS, Congress was very

serious about engaging local citizens in the contingency planning process; that

Congress believed doing so would contribute to safer transportation of oil by minimizing

risks as local people are most vested in protecting their families, homes, and livelihoods

– and keeping their backyards free of and safe from oil pollution; and that Congress

established a place to engage citizens in oil spill prevention and response planning at

the local level through Area Committees, RCACs, and ACPs.

The Clean Water Act, as amended post OPA 90, establishes for each area designated

by the President an Area Committee “comprised of members appointed by the

President from qualified personnel of Federal, State, and local agencies.” [33 USC

§1321(j)(4)(A)] The law further requires each Area Committee, under the direction of the

FOSC, to prepare an ACP and “work with State and local officials to expedite decisions

for the use of dispersants and other mitigating substances and devices.” [33 USC

1321(j)(4)(B)(i) and (iii)] There is no requirement for such expedited decisions in

OPA90: This became part of the required content of ACPs through the CWA.

In October 1991 in Executive Order 12777, the President delegated to the EPA

Administrator (inland) and Coast Guard (coastal) the authority to designate areas,

appoint Area Committee members, determine the information to be included in ACPs,

and review and approve plans to the EPA Administrator for the inland zone and to the

Secretary of the Department in which the Coast Guard is operating for the coastal zone.

[Sec. 1(b)] Significantly, there is no mention of expedited decisions for dispersant use or

a preauthorization plan in this Order.

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In 1994, the NCP was amended through an EPA rulemaking process to implement the

new (OPA90) and amended (CWA) laws and the Executive Order. Specifically, EPA

made Area Committees responsible for developing Area Contingency Plans (ACPs),

including preauthorization plans for expedited decisions regarding use of products. 40

CFR §300.105 Subpart B. EPA required Regional Response Teams to guide,

coordinate, and support Area Committees, as appropriate, to ensure inter-area

consistency and consistency of individual ACPs with the RCP and NCP. 40 CFR

§300.115 Subpart B. EPA also required RRTs to coordinate development of ACPs with

state and local emergency response plans under SARA Title III. 40 CFR §300.205(e),

§300.201(c), and §300.215(a) Subpart C.

From this, we find that Regional C-Plans and Area C-Plans are different with different

functions that are assigned to different authorities to create and implement; and that

Congress intended this separation of authority and function for three levels of

organization because Congress wrote it into law – twice. Therefore, this authority

cannot be altered by regulation. Also, altering it in Subpart J would create a conflict with

other subparts of the NCP.

Further we find that preauthorization plans are not mentioned in any statute or

Executive Order, however the CWA calls for expedited decisions for product use – and

assigns this duty to Area Committees as one of the required components of an Area C-

Plan. Therefore, the process of decision-making necessary for developing

preauthorization plans and the authorization to make these decisions falls to Area

Committees by statute and cannot be altered by regulation. EPA’s attempt to do so is

beyond the scope of its delegated authorities.

In addition, we ask EPA: Where in the law does Congress give the President or the

EPA the authority to allow for expedited decisions for dispersant use? From reading the

final rule in 1994, it seems that the idea of preauthorization plans came from the

traditional disaster response world where preauthorization is used to save time and

lives. We maintain that dispersants do not lend themselves to this approach. Given

strong evidence that dispersants actually do more harm than good as discussed

throughout these comments, we ask EPA: Is it time to do away with preauthorization for

expedited use of dispersants as this process does not live up to the Congressional

mandate or the missions of various response agencies under the Clean Water Act and

OPA 90?

Subsequent Interpretation and Implementation by EPA

In 1995, through Delegation No. 2-91 (Sept. 29, 1995), EPA “initially designated thirteen

geographic areas already covered by Regional Response Teams and the Regional

Response Teams as the initial Area Committees. The EPA Administrator also delegated

Regional Administrators the authority to designate different geographic areas within

their Regions and appoint different Area Committee members. Regional

Administrators are authorized to delegate the authority no lower than the Division

Director level. For this reason, an RCP may function as an ACP, if the designee

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determines that there is no need for formally defining multiple ACPs within a region.

Sub-regional concerns may also be addressed by Sub-Area Plans… or by Geographic

Response Plans. If the designee determines that the RCP will serve as the sole ACP for

the region, the RRT assumes the responsibilities of the AC as described in 40 CFR

300.205(c). In this case the RRT solicits states for local representatives. NGO and

private sector members may also be invited (emphasis added).”

126

We find that merging functionality of Regional C-Plans with Area C-Plans counters the

intent of Congress and likely violates the statutes that create these entities as separate

functions. Further, we find that merging authority of RRTs to assume responsibilities of

the Area Committee counters the intent of Congress to combat government-industry

complacency and to infuse the planning process with a dose of practical reality by

engaging local people in the oil spill prevention and response planning process. In other

words, this also is likely a violation of statue and is outside the scope of EPA’s authority.

Further, we find that this interpretation of Area C-Plans is 100 percent unworkable for

oil spill planning and response. As EPA rightfully points out in its handbook, there can

be no ‘one size fits all’ plan format. For this very reason, there is a need for designating

multiple Area Committees within a region, each to prepare a detailed ACP for its area,

as was prescribed by Congress. Therefore, contrary to EPA’s hypothetical situation in

its planning handbook, there will never be a circumstance in which there is no need to

create multiple Area C-Plans within a region.

Instead, we find that EPA has manufactured a need to create a fourth level of

organization, specifically to develop “sub-area” or “geographic” plans to meet the needs

of developing what should be Area C-Plans where oil actually spills – in local areas.

However, this fourth level, conveniently, has no formal authority and is not part of the

organizational structure of the NCP. So EPA’s creation actually disempowers and

disengages local citizens from the Constitutionally mandated planning process, and

allows state-level planners to usurp the authority, granted by statute, to local agencies

and citizens. In other words, creating RCP-ACPs, instead of RCPs and separate ACPs,

creates confusion.

Fast forward now to the BP DWH disaster in 2010.

In 2011, U.S. EPA Office of the Inspector General issued its report "Revisions Needed

to National Contingency Plan Based on [BP] Deepwater Horizon Oil Spill" (Report No.

11-P-0534). This in part revitalized the NCP rulemaking process that had languished

since 2001.

In 2013, EPA/OIG wrote a review of EPA’s contingency planning efforts, entitled, “EPA

could improve contingency planning for oil and hazardous substance response.” In it,

EPA/OIG criticized EPA for having creating an additional level of planning beyond that

required by OPA90: "EPA’s contingency planning structure has exceeded the three

126

US EPA, 2013, Area Contingency Planning Handbook, Version 1.0.

http://www.epa.gov/oem/docs/oil/frp/EPA_ACP_Handbook.pdf

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levels of plans established by the OPA and outlined by the NCP.”

127

EPA/OIG goes on to note that this fourth level has created the anticipated confusion:

“Regions 5, 6, 8, 10, and Alaska have each taken a different approach to planning. All

have one plan that generally serves as a guidance document, typically the RCP-ACP for

the region. One regional response manager described the RCP-ACP as “overarching

guidance,” and another described it as seen at “the 70,000 foot level.” Four out of the

five regions in our review also have lower-level operational plans in the form of subarea

c-plans or geographic response plans. These operational plans contain more tactical

information, in addition to the required RCP and ACP elements, and are generally the

plans used to respond to an incident.”

From this, we find that we agree with the EPA/OIG: “Regions have expanded their

contingency planning structure beyond the three requirements under the NCP because

they find the additional materials necessary and useful for a response” (emphasis

added). No kidding. However, we find that the three requirements for organizational

structure created under the statutes do provide for a planning process that would result

in all the materials necessary and useful for a response – if the three levels were

allowed and empowered to plan.

EPA/OIG also found that critical and required information was missing from some “RCP-

ACPs” such as the information of expediting decisions for product use. We find this is

because this information rightfully belongs in the local Area C-Plans, not the “RCP-ACP”

unworkable monstrosity created by EPA. In sum, by effectively eliminating the Area

Committees and their local knowledge, the RCPs fall short.

EPA/OIG concludes that failures to develop Area Committees and Area C-Plans

(instead of sub-area plans or geographic response plans) “has resulted in a large

volume of information that regions cannot regularly update and maintain with their

limited resources.” EPA/OIG recommends that EPA incorporate improved technological

methods for data collection and information delivery, and that the Assistant

Administrator for Solid Waste and Emergency Response “assess the resources,

including OSCs, necessary to develop and maintain contingency plans.”

However, we find that there is a much simpler, workable, and legal recommendation,

as opposed to some of EPA’s proposed rules (discussed below), which could be

implemented with this rulemaking. The two RCACs established under OPA90 already

use state-of-the-art technology for data collection and information delivery as part of the

government-industry-citizen partnership envisioned by OPA90. Further, OPA90 already

granted the legal authority to create similar, but not necessarily identical, programs in

other major crude oil terminals in the United States…” and other places “where the safe

transportation of crude oil is a national problem,” as mentioned earlier.

127

U.S. EPA, Office of the Inspector General, 2013, EPA Could Improve Contingency Planning for

Oil and Hazardous Substance Response, Report No. 13-P-0152, Feb. 15, 2013.

http://www.epa.gov/oig/reports/2013/20130215-13-P-0152.pdf

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Therefore, we recommend that EPA:

1. Follow the three-level organizational structure authorized in statute.

2. Designate areas and Area Committees, composed of local government, a state

planner, and an OSC are required by law, to ensure “that all navigable

waters, adjoining shorelines, and waters of the exclusive economic zone are

subject to an Area Contingency Plan, also as required by law.

3. Establish by appointment for each Area Committee, a companion Citizens’

Advisory Council, composed of citizens other than the oil industry and its

service providers, and not including municipal representatives because they

are seated on Area Committees.

4. Require the requisite resources for both the Area Committees and the Citizens’

Advisory Councils to be provided by the oil industry operators in the area as

part of the required Area C-Plan, much like the RCACs in Alaska.

Subsequent Implementation by US Coast Guard

The Clean Water Act section entitled, Improved Coordination with Tribal Governments

[33 USC 1321(b)], was enacted as part of the Coast Guard Authorization Act in 2010.

Specifically, in the event of an oil spill likely to impact natural and cultural resources

owned or directly utilized by a federally recognized Indian Tribe, the Secretary of the

Department in which the Coast Guard is operating is required to ensure that

representatives of the Tribal government of the affected Tribes are included as part of

the Incident Command System, share information, and “to the extent practicable”

involve Tribal governments in deciding how to respond to the spill. §706(b).

Further, the Coast Guard is not required to but “may enter into memoranda of

agreement and associated protocols with Indian Tribal governments in order to

establish cooperative arrangements for oil pollution prevention, preparedness, and

response. Such memoranda may be entered into prior to the development of the Tribal

consultation and coordination policy to provide Indian Tribes grant and contract

assistance.” §706(c).

Of specific note for this rulemaking, such memoranda “may include––

(1) arrangements for the assistance of the tribal government to participate in the

development of the National Contingency Plan and local Area Contingency Plans to

the extent they affect tribal lands, cultural and natural resources;

(2) arrangements for the assistance of the tribal government to develop the capacity to

implement the National Contingency Plan and local Area Contingency Plans to the

extent they affect tribal lands, cultural and natural resources;

(3) provisions on coordination in the event of a spill, including agreements that

representatives of the tribal government will be included as part of the regional

response team co-chaired by the Coast Guard and the Environmental Protection

Agency to establish policies for responding to oil spills;

(4) arrangements for the Coast Guard to provide training of tribal incident commanders

and spill responders for oil spill preparedness and response;

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(5) demonstration projects to assist tribal governments in building the capacity to protect

tribal treaty rights and trust assets from oil spills; and

(6) such additional measures the Coast Guard determines to be necessary for oil

pollution prevention, preparedness, and response.”

Further, subject to appropriations, the Commandant of the Coast Guard has up to

$500,000 for each fiscal year between 2010 to 2014 to carry out this section.

In addition, the Commandant is required to consult with the State of Washington and

affected Tribal governments to conduct an analysis of capacity of tug escorts for laden

oil tankers in Puget Sound, the Strait of Georgia, Haro Strait, Rosario Strait, and the

Strait of Juan de Fuca. §711(a)(1) and (2). There are no other such similar requirements

for any other state or Tribes.

However, the Makah Tribe in northwest Washington State could serve as a model of

engagement in the NCP for other Tribes (Exhibit #1).

128

The Makah's 1855 treaty with

the US government defined their Usual and Accustomed fishing and whaling grounds

(U&A) on the Olympic Coast. The Makah have used this treaty to secure fishing and

whaling rights in both state and federal waters. Chad Bowechop with the Makah Tribal

Council worked with then NOAA Hazmat/Sanctuaries consultant Chris Jones to secure

initial funding through NOAA’s sanctuary program to assist the Tribe with oil spill

prevention and response efforts.

129

The Makah then allocated funds from various

sources to continue this work for a couple years and successfully changed the

Northwest Area C-Plan to only allow dispersant use on a case-by-case basis – meaning

no pre-authorization – within the Makah U&A marine area.

130

The U&A marine area

extend from the shore out 200 miles to the limit of the Exclusive Economic Zone (Map,

Exhibit #2).

From this, we find that federally recognized Tribes must be included, and other Tribes

without this legal status should be included, in developing Area C-Plans, especially

including preauthorization plans, and that there may be many cases where other Tribes

have legal similar legal authority to the Makah Tribe. We recommend recognizing the

authority of federally recognized Tribal governments throughout this section.

§300.910(a) Use of Agents Identified on the Schedule on Oil Discharges

Addressed by a Preauthorization Plan.

128

Tierney, Michael, 2013, Sovereign Cooperation: The Makah Tribe’s Office of Marine Affairs and

the fundamentals of partnering with Uncle Sam, Boston College Law School, paper for

Environmental Law class with Prof. Zygmunt Plater, Nov 2013.

129

Jones, Chris, Consultant with Environmental Action Committee of Marin,

[email protected]. Personal communication with Riki Ott, June 7, 2013.

130

EPA Region 10, 2015, Regional Response Team and the Northwest Area Committee,

Northwest Area Contingency Plan, Section 9406, Dispersant Tools, Job Aids, and Decision

Process. http://www.rrt10nwac.com/nwacp/

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Proposed subtitle change

JUSTIFICATION

As discussed in the General Overview & Justification for this section, we find that

preauthorization plans cannot be separated from – they cannot exist – without their

parent document, a legitimate ACP (not a “RCP-ACP”) – or if they do, they are “orphan

preauthorization plans” that are perfunctory exercises to appease the desire of some

agencies and the industry for “expedited decisions for dispersant use.” Such orphan

preauthorization plans are being approved over the objections of local citizens,

something that cannot happen with legitimate ACPs, because these are developed by

local citizens. Any existing orphan preauthorization plans should be summarily rejected

by the EPA on the grounds of breach of its fiduciary duties. The industry should not be

allowed to end run the legal requirements in the Clean Water Act and Oil Pollution Act

for Area Committees to develop Area C-Plans. This is, in effect, what EPA is proposing

to do by allowing RRTs to circumvent Area Committees and develop regional

preauthorization plans. We request that the title include legitimate ACPS (not “RCP-

ACPs”), as preauthorization plans cannot legally exist without them.

Further, we find that the title should include any product that may be addressed by an

Area C-Plan, and subsequently a preauthorization plan. For example, in paragraph (c)

of this section, EPA proposes to authorize the OSC to authorize preauthorized in-situ

burns, yet burning agents are not proposed to be identified on the Schedule as an

agent. Also, other spill mitigating devices and substances such as ignition devices and

sorbents are not identified on the Schedule. We find that certain devices and

substances should be on the Schedule [see §900.915 (g) Sorbents (edited) and Burning

Agents (h) (new)]. We request that the title include any agent, device, and substance

that may be addressed by a preauthorization plan.

RECOMMENDATION (edits)

(a) Use of Agents Identified on the Schedule and Other Spill Mitigating Devices and

Substances on Oil Discharges Addressed by an Area Contingency Plan That Includes a

Preauthorization Plan

JUSTIFICATION, CONTINUED

As discussed in the General Overview & Justification for this section, we find that the

law authorizes Area Committees to prepare ACPs and the preauthorization plan, with

guidance from state planners and the OSC, for approval by the RRT and the President.

Very specifically, the law does not authorize the Regional Response Teams (RRTs) to

develop and implement Area Contingency Plans. These are separate plans with

separate functions as described in law. We cannot support EPA’s proposed change to

include RRTs as another planning entity with responsibility for developing

preauthorization plans.

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However, we are also concerned that the purpose of preauthorization plans has been

misconstrued. Preauthorization plans only determine what products on the Schedule

are preferred and may be used during oil spill response, not what products shall be

used. It is impossible for preauthorization plans to include enough specificity to fulfill the

Clean Water Act’s legal mandates to identify the quantities of products that can be used

safely in certain waters because this requires site-specific case-by-case consideration

depending on where, when, and how much oil spilled.

131

Most importantly, the decision

requires the concurrence and consultation process that is used currently and in

§300.910(b) – and this process needs to be expanded to include agencies tasked with

protecting workers and public health, and federally recognized Tribes for reasons

discussed below. Instead, we find that preauthorization plans are being used to

circumvent agency participation in decision-making through the concurrence and

consultation process

just when participation is most critical – during an oil spill

response.

What happened in Alaska is the perfect example of why we do not want RRTs to have

responsibility for developing preauthorization plans. For the past several years, the

federal government interagency officials on the Alaska RRT have used public funds to

conduct a “public education campaign” to gain support for the preauthorized use of

chemical dispersants as part of RCPs and ACPs in Alaska. The Alaska RRT conveyed

only industry’s claims of positive attributes of dispersants, unsupported by science, to

calm public fears, while omitting any negative or risk-based information on the subject

or any information on less toxic and available technologies.

132

The Alaska RRT pressed

forward despite thirteen Tribal Government Resolutions calling for a ban on chemical

dispersant use in their subsistence waters,

133

citizens’ strenuous objections to

dispersant use, and science-based data presented by groups such as the Prince

William Sound Regional Citizens’ Advisory Council on the known negative impacts of

dispersants on, and the long-term risks posed to, the ecological and human health of

the region.

134

We find that local knowledge offers a dose of reality to theoretical planning – just as

Congress envisioned. Such local knowledge is critical for effective disaster planning and

response that truly mitigates harm. However, we also find that such local knowledge is

often overlooked, ignored, or disrespected by government and academics rather than

meaningfully integrated into this process.

131

National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, 2011, Deep

Water: The Gulf Oil Disaster and the Future of Offshore Drilling, A Report to the President, Jan

2011. http://www.gpo.gov/fdsys/pkg/GPO-OILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf

132

Wagenbrenner, Diane, Letter from Lawrence Anthony Earth Organization to U.S. Senators and

Representatives, “Urgent – Chemical Dispersants vs. the Clean Water Act; Cease and Desist

Preauthorization,” Feb. 3, 2014. Under Global Alliance tab at

http://protectmarinelifenow.org/global-alliance

133

Calcote, Delise, Letter from Alaska Inter-Tribal Council to Commander of the 17

Coast Guard

District, Juneau, Alaska, Feb. 14, 2014. Under Global Alliance tab at

http://protectmarinelifenow.org/global-alliance

134

Prince William Sound Regional Citizens’ Advisory Council, resource and source material on

dispersants, http://www.pwsrcac.org/programs/environmental-monitoring/dispersants/

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We find that Area Committees (local government), Citizens’ Advisory Committees

(concerned, engaged citizens) and Local Emergency Planning Committees (SARA Title

III with local government and concerned citizens) are the only way for local people to

engage in spill prevention and response planning. We find that EPA cannot alter this

authority because it resides in statute, and because the authority is currently

implemented in Subparts B and C of the NCP, which are outside the current scope of

this proposed rulemaking.

As we concluded in our General Overview & Justification, we support designation of

more Area Committees and companion Citizens’ Advisory Councils instead of

reassigning legally-mandated responsibilities for local committees to regional

committees unfamiliar with local needs and sensitivities.

In addition, we recommend including language clearly stating that the FOSC and EPA

Administrator have authority to modify or stop use of an agent listed on the Schedule

and other spill mitigating devices and substances in the preauthorization plan. Such

authority was presumed yet unsuccessfully exercised during the BP disaster (see

Justification for lead paragraph).

RECOMMENDATION for subparagraph (a) (edits)

RRTs and Federally recognized Tribal governments and Area Committees shall

address in a preauthorization plan, as part of their responsibility and planning activities

in Subpart B §300.115(a)(2) and Subpart C §300.205(c), respectively, the specific

contexts in which whether the use of chemical and biological agents listed on the

Schedule such products should or should not be used on certain oil discharges is

appropriate. RRTs and Federally recognized Tribal governments and Area Committees

shall, as appropriate, include applicable approved preauthorization plans as part of

developing their in RCPs and ACPs. Even when a preauthorization plan is approved in

advance for the use, modification of use, or prohibition of use of certain agents, devices,

and substances under specified discharge situations, then the OSC may authorize the

use of agents preauthorized products* or any other products* on the Schedule for

their intended purpose without by obtaining the incident specific concurrences described

in paragraph (b) of this section unless otherwise directed by the EPA Administrator in

accordance with concurrent authority under section 311(d)(2)(G) of FWPCA and

Executive Order 12777.

* refers to our proposed inclusive definition of product.

§300.910(a)(1) Preauthorization Plan Development.

Proposed subtitle change

JUSTIFICATION

As explained in the General Overview & Justification for this section, preauthorization

plans cannot exist without their parent ACP. Further, we find that a full description of the

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purpose and scope of the ACPs, including preauthorization plans, is more properly

addressed in Subpart C Planning and Preparedness, which is not part of this

rulemaking. However, if preauthorization plans are addressed in Subpart J, as

proposed, then ACPs must also be referenced, and the title must properly refer to both.

RECOMMENDATION

Development of Preauthorization Plans Development as Part of Area Contingency

Plans.

JUSTIFICATION, CONTINUED

“I thought I had the Valdez Crud in 1989. I didn’t think I’d have it for 13 years.”

~ Participant in 2001 health survey of Exxon Valdez oil spill workers

135

“Learn to Recognize the Symptoms of Toxic Poisoning

Be prepared to seek medical assistance if you have any of the following symptoms:

difficulty breathing; irritation of the eyes, skin, throat, or respiratory tract; changes in skin

color; headache or blurred vision; dizziness, clumsiness or lack of coordination; cramps

or diarrhea.” ~ Air Force Emergency Management

136

In the current and proposed rules, this section outlines the scope and content of

preauthorization plans. It includes familiar requirements for availability of ‘adequately’

trained operators, availability of equipment needed for agent use, and means to monitor

agent use in the environment, among other things. It also includes new requirements to

“specify limits for quantities and duration of use, and use parameters for water depth,

distance to shoreline, and proximity to populated areas.”

Taken collectively along with the revised and expanded rules for supplemental testing

and monitoring [(g) of this section], we interpret these requirements to mean that EPA is

thinking more broadly about potential product impacts to workers, the general public,

and the environment – a trend we support.

However, we find that the proposed rules need more specificity to achieve the desired

goal of preventing or minimizing harm to humans and the environment. Preauthorization

plans need to be moored firmly to local Area C-Plans (not “RCPs-ACPs”), which could

provide the desired specificity, because Area C-Plans are the core of the planning

process. Currently the NCP includes, among other things, requirements for Area C-

Plans to identify environmentally sensitive resources, do consultations for endangered

species, and provide detailed plans for rescue and rehabilitation of oiled and injured

wildlife in Subparts B and C, but there are no parallel considerations for humans. We

are referring to real needs based on first-hand experiences of people directly impacted

135

Personal communication with Riki Ott, PhD, 2001, researcher during intake for survey

conducted by Alaska Community Action on Toxics and Alaska Forum for Environmental

Responsibility.

136

Air Force Emergency Management, 2006, pocket guide for oil and hazardous substance

disasters, AFEM. Helpdesk@tyndall.af.mil

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by the Exxon Valdez disaster, the BP DWH disaster and the more recent spills and

explosions of UOG in Arkansas, Illinois, Michigan, Montana, and West Virginia – and

elsewhere.

The problem we find is that people get sick during these industrial accidents from

exposures to oil and other toxic chemicals, despite an elaborate legal and regulatory

framework supposedly designed to protect worker safety and health, public health and

welfare, and the environment. We also find that the public’s experience and evidence of

harm is supported by the medical and health care professionals, studies of oil disasters

in other countries, and even the oil industry – but quite at odds with the federal

government’s studies and findings that consistently find no evidence of harm to workers

or the public. Clearly, something is amiss.

We describe in brief our experience with past spills, regarding the ability of the current

and proposed rules mentioned above to achieve their purpose, in order to justify our

recommendations for this section. We examine the evidence, identify the system’s

shortcomings, request an evidence-based approach for protecting and mitigating harm

from oil and product to spill responders and the general public, and request separate

worker programs for response contractors and the spiller’s employees – all within the

confines of this rulemaking, while also making a case for future rulemakings.

A. Availability of adequately trained operators and equipment needed for agent use

Evidence from the Exxon Valdez: Sick workers

Oil spills were declared as hazardous waste cleanups in 1989 mere weeks before the

Exxon Valdez oil spill.

137

This happened because worker unions and others presented

convincing evidence that oil is inherently hazardous to human health and oil spill

workers were getting sick – not just from “headaches,” “heat stroke,” “food poisoning,”

dehydration, but from work-related chemical illnesses.

The Exxon Valdez was the first oil spill response conducted under the OSH Act’s

Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, even

though oil spill waste had previously been exempted as a hazardous substance.

138

Within weeks, the Alaska Dept. of Labor reduced the required 40-hour HAZWOPER

training to 4-hours at Exxon’s request. Although OSHA’s research arm, NIOSH, deemed

Exxon’s 4-hour training adequate, critics found numerous flaws with the training and

overall Worker Safety Program.

For example, workers were not prescreened for medical issues that may have been

exacerbated or triggered by exposure to oil; they were not properly trained to recognize

symptoms of chemical exposure; they were not properly equipped with respirators and

Personal Protective Equipment (PPE) as required under the HAZWOPER standards;

137

OSHA, 1989. Hazardous Waste Operations and Emergency Response Standard, 29 CFR

1910.120 (Federal Register 54 [42]:9294-9336). U.S. Department of Labor, March 6, 1989.

138

40 CFR 300.5 definition of hazardous substance.

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and when workers started to get sick, there were no feedback loops to determine the

cause of the problem and address it, much less to provide follow up monitoring and

health care for sick workers.

139

The 4-hour training spent, by far, more time on hazards

of hypothermia and bears than on preparing workers to understand the toxic nature of

oil and chemicals hazards, to protect themselves from exposure to dangerous levels of

these dangerous chemicals, to recognize symptoms of work-related chemical illnesses,

and to get proper medical attention.

140

To further compound matters, OSHA standards are not protective. OSHA still relies on

inappropriate surrogates such as mineral oil and particulate dust to establish safety

standards for oil mist and PAHs, respectively.

141

These surrogates do not even come

close to accurately representing the toxic properties and associated health risks posed

by the original chemicals. Using such surrogates and other assumptions such as a 40-

hour week with five 8-hour days, an Occupational Exposure Limit (OEL) is determined

as a “safe” level of exposure to a substance for a certain frequency and duration over a

working lifetime. OSHA then determines Permissible Exposure Limits (PELs), based

basically on politics and the OELs, as enforceable legal limits that cannot be exceeded.

The standards do not account for increased risk of exposure from extended hours, shift-

work, and 24/7 exposure that occur during oil spill response. OSHA has acknowledged

that its PEL standards are out-of-date and not as protective as the OEL (not

enforceable) standards used by other agencies.

142

The way it works is that workers can

and do get sick at levels below the OSHA PELs, but OSHA acts when there is a

violation of the standard, not when there is evidence of harm.

In addition, OSHA inspections were inadequate to nonexistent. OSHA did not have

anywhere near a sufficient number of personal to monitor and evaluate Exxon’s Worker

Safety Program for the scale of the response; OSHA was prevented from inspecting on-

the-water operations because of competing jurisdiction with the U.S. Coast Guard;

143

and OSHA assumed, as a fallback plan, that it would subpoena Exxon’s medical

records and air quality monitoring data – but never did because of budget issues.

Absent air monitoring data and medical records and unable to conduct a records-based

evaluation of EVOS worker health, the Health Hazard Evaluation concluded, “Based on

139

Stuart, T. 1989, Alaska Dept. of Labor letter to Dr. Knut Ringen, Director, Laborers’ National

Health and Safety Fund, April 21, in U.S. Congress House, 1989a, 1061–1062.

Teitelbaum, Daniel T., MD, 1994. Deposition, October 12, in Stubblefield v. Exxon (1994) in Riki

Ott, Sound Truth and Corporate Myths, (Dragonfly Sisters Press, 2004).

140

VECO, Inc., 1989, VECO EVOS hazardous waste cleanup training video, VHS, Alaska

Resource Library and Information Services, Anchorage, AK.

141

See Teitelbaum deposition and Ott, Sound Truth, especially chapters 1–3 and 10.

142

OSHA, DWH Response, p. 7.

143

OSHA Instruction CPL 2-1.20 November 8, 1996 Directorate of Compliance Programs, Subject:

OSHA/U.S. Coast Guard Authority Over Vessels.

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=1526&p_table=DIRECTIV

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available data, there is no basis for recommending long-term medical surveillance of the

health of the workers involved in the cleanup of the oil spill.”

144

Meanwhile, the U.S. Coast Guard, as the FOSC, appeared to have focused on physical

injuries rather than chemical illnesses.

145

Chemical illnesses are now known to be a

consistent and debilitating health hazard associated with oil spill response or exposure.

Four years after the EVOS in 1993, the Coast Guard federal OSC concluded that the

matter of whether there were long-term or delayed ill effects from the cleanup on worker

health “is likely to remain unresolved for some time, and worker health issues may

ultimately be litigated, perhaps in significant numbers.”

146

In other words, the Coast

Guard federal OSC simply observed that there was likely to be a problem and that the

legal system would somehow resolve it.

Significant numbers of illnesses characteristic of oil exposure were reported to Exxon

medical clinics during the 1989 EVOS response operations. Exxon’s own clinical data

revealed 6,722 cases of respiratory problems from a total workforce of about 15,000.

147

Exxon medical doctors diagnosed the “Valdez crud” or upper respiratory infections

despite lack of evidence of a virus. This allowed Exxon to circumvent OSHA’s strict

reporting requirements for “OSHA-recordable illnesses” during hazardous waste

cleanups by using the exemption for colds and flu [29 CFR 1904(5)(b)(2)viii], despite the

fact that initial symptoms for chemical illness mimic cold and flu-like symptoms.

148

Exxon also reported a near zero work-related illness rate to Alaska health officials.

149

144

NIOSH, 1991, Health Hazard Evaluation Report, prepared by R.W. Gorman, S. P. Berardinelli,

and T. R. Bender. U.S. DHHS, May. HETA, 89-200 & 89-273-2111, Exxon/Valdez Alaska Oil

Spill.

145

USCG EVOS report, p. 399, Table 17.1.

146

USCG EVOS report, p. 404.

147

The following records were relinquished by Exxon in 1994 only after several court orders during

a 3-year legal battle. The records were only briefly available to the public before they were

sealed by court order for 30 years or until 2024. The NIOSH HHE was published in 1991, 3

years before these records were obtained.

Exxon Company, USA, 1989. Clinical data on upper respiratory infections: URIs–Breakdowns. In

Garry Stubblefield and Melissa Stubblefield v. Exxon Shipping Company, Exxon

Corporation,VECO, Inc., and Norcon, Inc. 3AN–91–6261 CV (HBS), AK Superior Court, Third

Judicial District at Anchorage (1994); in Ott, Sound Truth.

Med-Tox, 1989a. Air monitoring results for oil mist: VOCs master by task and VOCs master by

date. In Stubblefield v. Exxon (1994), in Ott, Sound Truth.

Med-Tox. 1989b. Results of air sampling for PAHs. In Stubblefield v. Exxon (1994), in Ott, Sound

Truth.

Med-Tox, 1989c. Statistical summary of industrial hygiene monitoring. In Stubblefield v. Exxon

(1994), in Ott, Sound Truth.

Ott, Sound Truth, Appendix Table A.1. Exposure levels of some hazardous compounds present

during the 1989 EVOS cleanup compared to OSHA PEL and NIOSH REL, p. 450.

148

OSHA regulations include the following exemptions for reporting work-related injuries and

illnesses: “Exclude from record keeping those injuries/illnesses that do not provide information

useful to the identification of occupational injuries and illnesses and thus would skew natural

injury/illness data” [29 CFR 1904.5(b)(2)]. The list includes: “Colds and flu will not be

considered work-related” [29 CFR 1904.5(b)(2)(vii)].

149

Phillips, N. 1999. Still painful.10 years later, front-line spill workers link physical ailments to

cleanup work. Anchorage Daily News, 23 March.

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While the Alaska Dept. of Labor did maintain a separate database for the EVOS claims,

OSHA’s coding system, then and now, fails to recognize and accurately code chemical-

illness data (as evidenced also by the glaring exemption) as the system was designed

before chemical illnesses were understood, fails workers who do not understand the

nature of chemical illness and so report their illnesses inaccurately, and finally fails to

use staff with expertise in occupational medicine and industrial hygiene and so

compounds any errors. The Alaska Dept. of Labor failed to notice anything unusual

about the EVOS accident types and rates compared to previous years.

Thus, despite the Coast Guard OSC’s assumption, significant numbers of EVOS

workers did not litigate likely because most did not connect their lingering illnesses to

their occupational exposure. But they had been given no reason to believe their illness

was connected: their training had not forewarned them; they had been told repeatedly

that the chemical products (Corexit dispersants and dispersant-like Inipol EPA22) were

“as safe as pancake syrup;” and Exxon had circulated a waiver indemnifying the

company from any work-related harm – and had paid workers to sign it.

150

Thirteen years later (see Definitions, Oil), a Yale study found a significant number of

former EVOS workers self-reported lingering symptoms characteristic of oil spill

exposure.

151

Most of the former EVOS workers never connected their debilitating health

problems with their oil spill response work. Few public policies were adjusted to better

protect human safety and health during oil spill response.

From this, we find that:

1. The Federal OSC has the ultimate responsibility for directing response efforts

and addressing worker health and safety concerns throughout the entire

response area, however, the FOSC does not have the expertise to adequately

protect workers during petrochemical exposures.

2. The spiller is obligated as a “responsible party” under the NCP – not statute – to

implement and administer a safety and health program consistent with

Hazardous Waste Operations and Emergency Response (HAZWOPER) (29 CFR

1910.120) and other OSHA standards. §300.150. Subpart B. However, the spiller

has a conflict of interest and is, obviously, not in the best position to judge the

program’s effectiveness – nor to be in charge of contract worker safety and

health, as opposed to employees who receive proper training to handle

dangerous substances including oil and health care.

Alaska Dept. of Labor, 1990, Prince William Sound oil spill, in Occupational Injury and Illness

Information–AK, 1989, 25–34, Juneau, AK: ADOL, in Ott, Sound Truth, p. 33.

150

ADOL, Alaska Workers’ Compensation Board,1992, Partial compromise and release regarding

recovery of overpayment of benefits, filed 2 October, in ADOL, AWCB 1992, in Ott, Sound

Truth.

151

O’Neill, Annie, 2003, Self-reported exposures and health status among workers from the EVOS

cleanup. Master’s thesis M. P. H. Yale University, Department of Epidemiology and Public

Health. Available as PDF on www.rikiott.com

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3. Program implementation is one thing; ensuring the program actually works is

another. This requires dedicated agency or entity oversight with people trained

in, and familiar with, Occupational and Environmental Medicine (OEM), as well

as HAZWOPER protocols. It also requires the designated agency or entity to

have full authority for worker oversight over the entire geographic extent of the

spill. Currently, OSHA is tasked with cleanup worker safety. However, this is not

currently working for several reasons, including:

– OSHA’s authority is limited to work performed in a territory or state, including

state waters; it does not extent to the outer continental shelf, vessels, or facilities

such as rigs that are not attached to the ocean floor;

– OSHA standards are outdated and were established before chemical illnesses

were recognized as a problem;

– OSHA’s ability to “see” and act on a problem is limited by its enforcement-based

approach; workers are getting sick below the supposedly “safe” standards;

– OSHA rules exempt the very symptoms that are indicative of over-exposure to oil

and petrochemicals; and

– OSHA oversight is limited by budget constraints.

4. Health Hazard Evaluations are only as good as the data on which they are

based, the training and expertise of the researchers, and the Administration’s

commitment to protect workers at the spiller’s expense.

Further, we find that we are not the only ones who reached these or similar

conclusions after the EVOS. Adjustments were made by the FOSC, OSHA, and others

to overcome some of these shortcomings and were applied during the BP DWH spill.

Unfortunately, the outcome didn’t change.

Evidence from the BP DWH Disaster: Sick workers and sick public

During the BP DWH disaster, regulations had changed and the oil spill response was no

longer regulated as a hazardous waste cleanup. Nonetheless, in early June OSHA and

the FOSC developed and Memorandum of Understanding (MOU) that clarified OSHA’s

role to provide technical assistance within the Unified Command structure, rather than

act solely to enforce inadequate standards. The MOU established procedures for

consultation and coordination between the FOSC and the OSHA. Under the MOU and

according to an OSHA report, OSHA was able to provide health and safety assistance

to Vessel of Opportunity personnel working offshore and outside of OSHA’s geographic

authority.

According to OSHA, in its technical assistance role, the agency was able to apply

“vigorous intervention” to quickly abate hazards, while acting from its enforcement role

often led to litigation and delayed abatement of workplace hazards. Also when operating

in the technical assistance role, OSHA found it could “encourage employers to protect

workers to a higher degree than the legally enforceable standards. For example, in the

[BP] Deepwater Horizon response, OSHA worked with the UC to use the most

protective Occupational Exposure Limits to monitor and protect workers from chemical

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exposures rather than solely enforcing the OSHA Permissible Exposure Limits.”

It still wasn’t enough to prevent workers from getting sick. Based on OSHA’s report on

its response to the BP DWH and on the Health Hazard Evaluation, written by NIOSH

and CDC personnel,

152

we find that many similar health symptoms arose during the

EVOS. Instead of the “Valdez Crud,” it was the “BP Crud,” heat stroke, headaches, food

poisoning, nausea, dehydration, MRSA – or any number of other illnesses except work-

related chemical illness.

As is evident from their reports, OSHA, NIOSH, and CDC all focused on heat stress as

the most significant health threat to the response and response workers. Accordingly,

these agencies associated the most often reported symptoms as “a constellation of

symptoms considered as a specific indicator of heat stress,” a finding repeated

consistently throughout their reports. However, the goal of the Health Hazard Evaluation

was to describe acute health effects. They didn’t revisit the same people over months,

much less years, to determine the accuracy of their findings. Ideally, all those reports of

“heat stress” would have cleared up with time and treatment for a biological causation.

However, this constellation also happens to include many of the symptoms considered

by medical researchers to be common characteristics of chemical-illnesses (see

Definitions, Oil and Dispersants). These are typically coded as “nonspecific symptoms,”

because there is no diagnostic code for chemical illness.

153

The symptoms also happen

to lead to a number of illnesses when unrecognized and untreated for what they really

are, as discussed in Definitions for Oil and Dispersants.

The Medevac life-flights of seven fishermen from the in-situ burn site for acute

respiratory failure and ten additional hospitalizations, all in late May/early June, should

have been a wakeup call. NIOSH investigators stated the initial seven fishermen

reported headache, upper respiratory irritation or congestion, and nausea. NIOSH

reviewed the hospital records and concluded their symptoms could not be linked to

chemical dispersant that some of the fishermen had originally suspected, because none

of their vessels were operating in the area of dispersant use at the time. The ten other

people reported similar symptoms. The NIOSH investigators found the medical records

did not include sufficient detail about their oil and chemical exposures to determine

whether their symptoms or diagnoses could have been related to chemical exposure.

The investigators decided the incidents were likely related to heat stress.

From this, we find that the NIOSH investigators demonstrated a remarkable ignorance

about oil and dispersant fate and effects. At least one of the fishermen remains very

152

U.S. Dept of Labor, Occupational Safety and Health Administration, 2011, Deepwater Horizon

Oil Spill: OSHA’s Response, May 2011. Hereafter, OSHA’s Response, 2011.

https://www.osha.gov/oilspills/dwh_osha_response_0511a.pdf

National Institute for Occupational Safety and Health (NIOSH) and Centers for Disease Control

(CDC), Health Hazard Evaluation of [BP] Deepwater Horizon Response Workers, prepared by

Bradley King and John Gibbins, Health Hazard Evaluation Report, HETA 2010-0115 & 2010-

0129-3138, Aug. 2011. http://www.cdc.gov/niosh/hhe/reports/pdfs/2010-0115-0129-3138.pdf

153

Ott, Sound Truth, Chapter 8.

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sick to this day, disabled by his illnesses and unable to work; indoor air quality tests

conducted in his boat cabin in June 2010 measured concentrations of VOCs at levels

high enough to require contained air supplies.

154

BP purchased this fisherman’s boat.

Similarly, after the tar sands-diluent spill in Mayflower, AR, ExxonMobil purchased

peoples’ homes where yards or street fronts were oiled.

155

Organic material – wood,

furniture and cabinetry, carpets, fabric in furniture and clothes – all absorb oil and

petrochemical fumes. This is probably why BP intercepted and confiscated the

fishermen’s clothes at the Jefferson Parrish hospital – and didn’t return the “evidence”

(Exhibit #3).

156

Further, throughout the Health Hazard Evaluation, the NIOSH investigators mentioned

repeatedly that they “saw” no evidence of exposure to dispersants. Again, we find such

statements demonstrate a remarkable ignorance. Dispersants interact with oil to

produce dispersant-encased oil micro-droplets called micelles, which are not visible to

the naked eye under daylight. However, as mentioned earlier (see Definitions,

Dispersants), scientists found oil and oil-dispersant droplets aerosolized daily and

became part of the Gulf hydrologic cycle. Gulf coast residents and media documented

BP’s oily sheen on the leading edges of their airplanes after flying over the Gulf,

157

puddles on door stoops after rain, on hotel beach furniture, and in outdoor swimming

pools,

158

shallow bayous, bays, and coastal seas.

159

Oil-dispersant combined was found

to fluoresce under black light.

160

White sand beaches that appeared clean under

daylight would fluoresce at night, indicating presence of microscopic micelles bound to

sand grains. As Venice, Louisiana, resident Kindra Arneson observed in the

documentary film, Dirty Energy, “This sh-t was everywhere!” The NIOSH investigators,

for whatever reason, just missed the mark.

Five years later, we find that –

1. Many of the workers and people we spoke to and lived or worked with in 2010–

2015

161

became symptomatic during the summer of 2010 after exposures to

154

Wunstell, John, LaFourche Parrish, LA, Affidavit, May 29, 2010, as provided to Riki Ott.

Wunstell, John, LaFourche Parrish, LA, July 2010. Personal communication with Riki Ott.

155

Harris, Emily, MPH, 2015, What’s the Plan? Spill voices calling for stronger oil spill response,

webinar presentation hosted by ALERT project.org, April 8, 2015.

https://attendee.gotowebinar.com/recording/5206338556313987073

156

Wunstell Affidavit, 2010.

157

Wathen, 2010 VIDEO. http://bpoilslick.blogspot.com/2010/07/breathing-toxic-oil-vapors.html

158

Florida Oil Spill Law, 2010, EXCLUSIVE: Tests find sickened family.

http://www.floridaoilspilllaw.com/exclusive-tests-find-sickened-family-has-50-3-ppm-of-corexits-2-

butoxyethanol-in-swimming-pool-just-one-hour-north-of-tampa-lab-report-included/

159

News 5 2010, Testing the water. http://www2.wkrg.com/special_section/2010/jul/17/news-5-

investigates-testing-the-water-ar-2121731/

160

Kirby, Rip, 2012, Persistency of Polycyclic Aromatic Hydrocarbons.

http://surfrider.org/images/uploads/publications/Corexit_Connections.pdf

161

The primary author of these comments and EVOS survivor Riki Ott lived a year in Gulf coast

communities directly impacted by the BP DWH disaster from May 2, 2010 to April 22, 2011,

and returned for about two months each year from 2012 to 2014 to continuing working directly

with spill-impacted people to “make it right.” The original petition for this rulemaking was a

direct result of this collaboration. So are these oomments.

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BP’s oil and spill response

162

and, now five years later, are still symptomatic and

now quite ill with many of the compensable illnesses listed in the BP-Plaintiffs

Medical Benefits Settlement on Exhibit 8.

2. Gulf coast residents and visitors who had their blood tested for hydrocarbon

exposure with Metametrix’ Volatile Organic Solvent Blood Profile test, conducted

by licensed health care providers, found strikingly high levels of hydrocarbons –

often in the upper 5 percent range (more oil in their blood than 95–100 percent of

the baseline consisting of those taking the test).

163

3. In general, people who were treated by medical professionals for symptoms

relating to a biological causation are still symptomatic, ill – and, in many cases,

struggling to survive. Whereas, in general people who sought medical

professionals to treat them for symptoms relating to a chemical causation found

varying degrees of relief. People who returned to oil spill-impacted areas of the

162

Ott, Riki, 2010, At what cost? BP spill responders told to forego precautionary health measures

in the cleanup, Huffington Post, May 17, 2010, http://www.huffingtonpost.com/riki-ott/at-what-

cost-bp-spill-res_b_578784.html

Ott, Riki, 2010, Human health tragedy in the making: Gulf response failing to protect people,

Huffington Post, May 19, 2010. http://www.huffingtonpost.com/riki-ott/at-what-cost-bp-spill-

res_b_578784.html

Ott, Riki, 2010, BP, governments, downplay public health risk from oil and dispersants, Huffington

Post, July 7, 2010. http://www.huffingtonpost.com/riki-ott/the-big-lie-bp-

government_b_638369.html

Ott, Riki, 2010, Oilgate! BP and all the President’s men (except one) seek to contain truth of leak

in the Gulf, Huffington Post, Aug. 2, 2010.

Ott, Riki, 2010, Seafood safety and politics don’t mix: Opening of Gulf fisheries at odds with

evidence of harm, Huffington Post, Aug. 11, 2010. http://www.huffingtonpost.com/riki-

ott/seafood-safety-and-politi_b_678813.html

Ott, Riki, 2010, An open letter to EPA, Huffington Post, Aug 27, 2010.

http://www.huffingtonpost.com/riki-ott/an-open-letter-to-us-epa_b_697376.html

Ott, Riki, 2010, Bio-remediation or bio-hazard? Dispersants, illness, and bacteria in the Gulf,

Huffington Post, Sept. 17, 2010. http://www.huffingtonpost.com/riki-ott/bio-remediation-or-bio-

ha_b_720461.html

Ott, Riki, 2011, Lots of inconvenient truths – Chemical illness epidemic in the wake of the BP well

blowout, Huffington Post, June 8, 2011. http://www.huffingtonpost.com/riki-ott/oil-spill-

illness_b_873582.html?

Ott, Riki, 2012, Unfinished business: The unspoken link between dispersants and sick children in

the Gulf of Mexico, Huffington Post, Nov 30, 2012. http://www.huffingtonpost.com/riki-

ott/unfinished-business-the-u_b_2219493.html

163

Cope, Jerry, 2010, No safe harbor on Gulf Coast; Human blood tests show dangerous levels of

toxic exposure, Huffington Post, posted Sept. 2, 2010. http://www.huffingtonpost.com/jerry-

cope/no-safe-harbor-on-gulf-co_b_698338.html

Cope, Jerry, 2011, The Jaws Syndrome, Huffington Post, posted Aug 11, 2010.

http://www.huffingtonpost.com/jerry-cope/the-jaws-syndrome-life-im_b_674481.html

Sturgis, Sue, 2010, Air threats from the Louisiana coast reveal human health threats from the oil

disaster, Institute for Southern Studies, May 10, 2010.

http://www.southernstudies.org/2010/05/air-tests-from-the-louisiana-coast-reveal-human-

health-threats-from-the-oil-disaster.html

Wilma Subra, “BP spill blood test results – Louisiana residents: Evaluation of the test results of

whole blood volatile solvents testing,” Jan. 5, 2011. http://leanweb.org/our-

work/community/public-health/bp-spill-blood-test-results-louisiana-residents

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Gulf coast often reported that symptoms returned or flared, and many report now

being chemically sensitive. Others report feeling well after treatment for chemical

causation, only to have symptoms return after physical exertion such as mowing

lawn or playing with their grandchildren.

4. Given the passage of time and these consistent and similar stories across the oil-

impacted region from Louisiana to Florida – and the fact that the primary author

has seen this all before with the EVOS, the original symptoms in 2010 from

exposure to the BP DWH oil and response should be more accurately

characterized as chemical exposures rather than heat stress. While heat stress

was certainly present and contributed to discomfort, and in some cases

exacerbated exposure, it cannot explain the vast majority of illnesses suffered by

victims of the BP DWH disaster.

For all the good that OSHA and NIOSH attempted – and the oversight was far more

comprehensive than during the EVOS, there were still shortcomings that undermined

the success of the overall program to protect workers. The Government Accountability

Report reveals a number of reasons why this was so. For example, even though OSHA

tried to ensure that training and written materials were provided in multiple languages

and at an appropriate literacy level, workers reported that they did not receive safety

manuals; that they were not trained to recognize symptoms of chemical illness; that they

were specifically told by their trainers or site supervisors if they wore respirators or

masks, their jobs would be terminated; and more. Further, GAP also found that some

people were reluctant to reveal their identity for fear of retaliation. From this, we find

that requiring the spiller to be in charge of contract worker safety and health represents

an institutionalized failure in the current rules – it is a weak link in the already fragile and

ill-prepared safety network.

The agencies conducted 119,000 exposure assessments and 7,000 independent

worker exposure measurements. However, based on a work force of 42,000 and 74

days (from when the programs started to when the well was capped), this means

exposure assessments were collected on only 4% of the work force and independent

measurements on only 0.3% of the work force. From this, we find that even the

federal agencies’ best effort to oversee the spiller’s worker safety and health program

was insufficient for the size of the work force.

Rather than present a detailed critique of OHSA’s report – which would repeat many

identical concerns discussed in the EVOS critique, we find it more instructive to add our

comments and observations to the conclusions and recommendations listed in the

Health Hazard Evaluation.

NIOSH/ CDC concluded that air sampling consistently revealed nondetectable to low

levels of individual chemicals well below the applicable OELs. However, the agencies

also noted that the nonspecific symptoms characteristic of oil exposure were more

commonly reported by workers exposed to oil, dispersants, and other chemicals

compared to workers who were not exposed. From this, we find that the agencies

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observed that people were symptomatic at levels below the safety standards.

Illness/Injury Surveillance

NIOSH/ CDC recommended “rapidly establishing a widespread system of surveillance

for illnesses and injuries” during a large-scale disaster. The agencies use the example

of the sentinel surveillance system established by the Louisiana Department of Health

and Hospitals that relied on records from hospital emergency departments, clinics,

doctors’ offices, and the Louisiana Poison Control Center. Also, the agencies

recommended making occupational exposure history a component of a complete history

and physical examination, conducted by a physician or healthcare professional, and

collecting the information on incident reporting forms by on-site health and safety teams.

However, we find that many people along the Gulf Coast did not go to hospitals, and

they rarely went to emergency rooms for a variety of reasons, including they couldn’t

afford it or there wasn’t one nearby; they were led to believe from officials that there was

no cause for concern of toxic exposure;

they didn’t recognize the symptoms of chemical

illness and thought they had an ordinary headache, respiratory problem, cold-flu, skin

rash, nose bleed, etc.; and they self-medicated with over-the-counter drugs.

164

Further,

we find from the EVOS that Worker Safety Programs, especially industry programs

sanctioned by government, are supposed to include baseline health and occupational

exposure history.

165

The oil industry routinely collects such information for its

employees. We question why such critical information was not collected for contract

workers.

Medical Clearance and Preplacement

NIOSH/ CDC recommended pre-placement evaluations and medical clearance as

important components for protecting workers performing unfamiliar tasks in unfamiliar

environments with physical, mental, and chemical hazards. The agencies noted “these

evaluations can provide baseline information on health status that may be useful for

future evaluations.”

Again, we find from the EVOS that such evaluations and screenings are critical for

minimizing health issues up front, and accurately evaluating problems that might arise.

166

Pre-work evaluations and screenings were not conducted for EVOS workers. As a

result, when EVOS workers became sick, they lacked the baseline information

necessary to support occupational exposure health claims. We repeat: Worker Safety

Programs, especially those sanctioned by government, are supposed to include medical

clearance and preplacement exams. The oil industry routinely collects such information

for its employees. Again, we question why such critical information was not collected for

contract workers.

164

People from Walgreen and CVS pharmacies and Wynn Dixie grocery stores reported “off the

chart” sales of nebulizers, skin crèmes, cold/flu medication, and vertigo medication during the

summer of 2010 from the oil spill-impacted Gulf region. Personal communication with Riki Ott.

165

Ott, Riki, Sound Truth, Chapters 1–2.

166

Ott, Riki, Sound Truth, Chapters 1–2.

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Risk Communication

NIOSH/ CDC called for all parties to improve risk communication as they emphasized

that clear and consistent use of effective risk communication is critically important in

emergency response events. The agencies noted the diversity of needs, such as

response workers, general public, the scientific and medical community, advocacy

organizations, all levels of government agencies from local to federal, and media. The

agencies noted the challenges of meeting the needs with timely information tailored to

the target audience in terms of language and medium accessibility.

We share these concerns and observations and add two more issues of concern:

communication content and integrating experience/knowledge of spill survivors and

OEM-trained health care professionals.

Regarding content, we find that “risk communication” amounted to a purposeful

strategy used by the Unified Command to deceive the public about the risks of exposure

to oil and Corexit dispersants. For example, an EPA-affiliated toxicologist was handing

out a Corexit Comparison Chart (Exhibit #4) at the Unified Command center in Houma,

Louisiana. The chart is an attempt to convince people that the ingredients in Corexit

dispersants are also in Klondyke Ice Cream Bars, Lubriderm skin repair, Dermplast,

Orajel Training toothpaste, Ponds lip gloss, children’s I-Buprofen, Lysol bathroom

cleaner, and more.

167

We find that the strategy of deception extended to the highest

office in this country when President Obama went swimming in the region to boost the

public’s flagging confidence in the safety of resort towns.

168

We know this deception

cost lives of residents and visitors alike

169

and diminished quality of life for people

unnecessarily exposed to oil and toxic chemicals. In South Korea, scientists devised a

quantifiable metric for this loss: “years lived with disability” (YLD) due to an oil spill.

170

Regarding integrating experience/knowledge of spill survivors, we find that instead of

welcoming information from people who have lived with the consequences of these oil

disasters and government policies, the Unified Command treated us as a threat to the

success of their “risk communication.” As mentioned in the opening overview and

framework for these comments, open and honest risk communication is important to us,

too, and we found this absent during the BP DWH disaster. We weren’t the threat – the

truth was.

Regarding OEM-trained health care professionals, we find from the EVOS that such

professionals should be placed in charge of oil spills with a team of OEM-trained

professionals. Without competent, trained professionals in charge of health care, worker

167

Price, Susan Felico, Chauvin, LA, personal communication with Riki Ott, Sept. 9, 2010.

168

Goldenberg, Suzanne, 2010, BP oil spill: Barack Obama dives into safety debate with Gulf of

Mexico swim, The Guardian, Aug 15, 2010.

http://www.theguardian.com/environment/2010/aug/15/barack-obama-swim-gulf-florida

169

Jamail, Dahr, 2011, Gulf spill sickness wrecking lives, Al Jazeera, Mar 9, 2011.

http://www.aljazeera.com/indepth/features/2011/03/201138152955897442.html

170

Kim, Young-Min, et al., 2013, Burden of disease attributable to the Hebei Spirit oil spill in

Taean, Korea, BMJ Open, Sept 20, 2013; 3(9):e003334.

http://www.ncbi.nlm.nih.gov/pubmed/24056482

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safety and health programs exist in name only. We find that Massachusetts, for

example, established a semi-privatized waste site cleanup program. The Massachusetts

Contingency Plan requires the use of Licensed Site Professionals (LSPs) to evaluate

and oversee the remediation of contaminated sites.

171

Similar to Professional

Engineers, LSPs are licensed and policed by a state board. The required use of LSPs

attempts to ensure a minimum level of competence, ethical conduct, and professional

accountability in a privatized process.!Spill response contractors are required to have at

least one LSP within their firm.

Evidence from Unconventional Oil and Gas Spills 2010–2015:

Sick Workers & the Public

Earlier (see Definitions, Dispersants, Oil, and Remove/Removal), we presented

evidence that UOG spills were even more hazardous than spills of conventional oil

because of the nature of the oil and oil-solvent mixtures. We also presented evidence

that workers and the general public became sickened with symptoms characteristic of

oil exposure, that such illnesses were treated as ordinary health issues and not

chemical exposures, that people who were sick and outspoken were harassed and

intimidated as in other spills,

172

and that people are still symptomatic and now

chronically ill, indicating that the original symptoms were likely from chemical exposure.

In addition, the spills of UOG raise concerns about preparation for worst case scenario

planning. The January 2015 Bakken oil spill into the Yellowstone River, impaired the

water supply for the entire community of Glendive, Montana (popn.5,000).

173

Another

larger tar sands spill from the BP refinery in Whiting, Indiana, could reasonably be

anticipated to impair the water intake cribs for nine million or more people. Further, the

fiery derailments and explosions from 2013 in Lac Megantic and to, most recently, those

near Mount Carbon in West Virginia and near Galena in Illinois have collectively

resulted in lives lost, homes and businesses destroyed, and evacuations of large areas

– yet these have been relatively small scale compared to what could happen.

174

There

171

Massachusetts Energy and Environmental Affairs, The Privatized waste site cleanup program,

accessed April 14, 2015. http://www.mass.gov/eea/agencies/massdep/cleanup/the-privatized-waste-site-

cleanup-program.html!!

172

Jamail, Dahr, 2011, The pipeline of ‘poison’.

http://www.aljazeera.com/indepth/features/2011/10/2011101151776808.html

Jamail, Dahr, 2011, Dangerous allegations in the Gulf of Mexico, Al Jazerra, Oct 25, 2011.

http://www.aljazeera.com/indepth/features/2011/10/2011101454750450299.html

Jamail, Dahr, 2013, Is BP ‘trolling’ its Facebook critics? Al Jazeera English, Nov 22, 2013.

http://www.aljazeera.com/indepth/features/2013/11/bp-trolling-facebook-critics-

20131112104514166549.html

173

Valentine, Katie, 2015, Thousands of Montanans can’t drink or cook with tap water because of

oil spill, Jan. 20, 1015, Climate Progress.

http://thinkprogress.org/climate/2015/01/20/3613127/yellowstone-river-oil-spill-contaminates-

drinking-water/

174

Kutner, Max, 2015, West Virginia begins investigating massive train derailment, Reuters, Mar

20, 2015. http://www.newsweek.com/west-virginia-begins-investigating-massive-train-

derailment-308428

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is no worst-case scenario planning for such events: what about Lac Megantic scaled up

by 100 or 1,000 in a major city?

175

From this section, we conclude that there is a system-wide failure in the NCP to

protect worker and public health and welfare. The current and proposed rules contribute

to this failure by creating specific requirements for expedited use of, explicitly,

dispersants and, less explicitly, other products in preauthorization plans, but only a

vague requirement to “adequately” trained operators (to dispense the product) and no

requirements for protecting other workers or the general public from the harm resulting

from product use. We find that with permission to use products comes responsibility to

use them safely and do no more harm, as required by the CWA. The health of our first

responders, our contract workers, us, our families, and our environment and wildlife are

public trust responsibilities that cannot and should not be entrusted to the spiller, as

EPA proposes to do throughout this rulemaking. We consider such reassignments a

breach of the public trust duties of government.

Detailed Annexes for protecting workers and the general public would best be

established in 300.201(c) in Subpart C Planning and Preparedness along with the

required Annex for protection, rescue, and rehabilitation of wildlife. Subpart C is outside

the scope of this rulemaking, however, we have made a case that preauthorization

plans are not separate from their parent Area C-Plans. In this section, we find it

necessary to refer to such annexes in order to give the entities tasked with developing

these Area C-Plans the flexibility to establish plans to protect workers and the general

public. Again, we stress the need for EPA to create more Area Committees (not RCPs-

ACPs) and Citizens’ Advisory Councils and require operators in the area covered by the

plan to fund these entities as part of their contingency plans.

We find the remedy for these issues, relative this rulemaking, are to expand the scope

and content of Area C-Plans, as EPA has started to do by expanding the scope and

content of the preauthorization plans and by adding a new section for environmental

monitoring in §300.913. We add more specificity, based on our justification for this

section. Note: justification for the references to the Natural Resources Trustees, the

Quality Assurance Program, and baseline monitoring is found in §300.913 and to Tribe

and community acceptance criteria in §00.915.

RECOMMENDATION (edits)

For discharge situations identified where such agents, devices, or substances may be

used, the preauthorization plan must specify limits for the quantities and the duration of

use, and use parameters for water depth, distance to shoreline, and proximity to

populated areas. In meeting the provisions of this paragraph, the preauthorization plan

should document––

AP, 2015, Galena oil train derailment involved safer tanker cars, Associated Press, Mar 6, 2015.

http://chicago.cbslocal.com/2015/03/06/galena-oil-train-derailment-involved-safer-tanker-cars/

175

AP, 2014, Oil train derails under Seattle’s Magnolia bridge, July 24, 2014.

http://www.komonews.com/news/local/Oil-train-derails-under-Seattles-Magnolia-Bridge-

268442612.html

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(A) [NEW SECTION] use parameters including:

i. the source and type of oil spilled;

ii. a priority for products containing only non-toxic ingredients or products

that have received EPA’s Design for the Environment recognition;

iii. consideration of rating for federally recognized Tribe and community

acceptance criteria;

iv. specific limits for the quantities and the duration of use;

v. specific limits for water depth, distance to shoreline, and proximity to

populated areas and water intake structures;

vi. a Memorandum of Understanding among the FOSC, OSHA, and the

Trustees for Natural Resources to clarify OSHA’s role to provide technical

assistance within the Unified Command structure; to establish procedures

for concurrence and coordination to allow OSHA to provide health and

safety assistance to personnel throughout the spill-impacted area

including outside of OSHA’s geographic authority; and to establish

procedures for concurrence between the OSHA and the Trustees for

Natural Resources to integrate evidence-based worker health data and

concerns generated from the applicable ACPs within the Unified

Command structure;

vii. a Memorandum of Understanding among the FOSC, DHHS/ CDC, and the

Trustees for Natural Resources to clarify CDC’s role to provide technical

assistance within the Unified Command structure; to establish procedures

for concurrence and coordination between the FOSC and CDC to allow

DHHS to provide health and safety assistance to the general public

throughout the spill-impacted area; and to establish procedures for

concurrence between the OSHA and the Trustees for Natural Resources

to integrate evidence-based public health data and concerns generated

from the applicable ACPs within the Unified Command structure;

viii. Memoranda of Agreement, associated protocols, and consultation and

coordination policies between the Secretary of the Department in which

the Coast Guard is operating and federally recognized Tribes in the

geographic region covered by the Area C-Plan to establish cooperative

arrangements for oil pollution prevention, preparedness, and response, to

provide Indian Tribes grant and contract assistance; and

ix. a Quality Assurance Program as part of an approved Area C-Plan; and

x. a completed environmental baseline monitoring program, also as part of

an approved Area C-Plan;

(B) how local and regional factors are addressed including:

i. likely sources and types of oil and oil products such as dilbit that might be

discharged;

ii. various discharge scenarios including Realistic Maximum Oil Discharge;

iii. various environmental monitoring scenarios for tracking air- and water-

borne pollutants;

iv. the existence and location of vulnerable populations, environmentally and

culturally sensitive resources, or restricted areas such as drinking water

supplies or sources and infrastructure critical to public welfare that might

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be impacted by discharged oil and product use; and

i. provisions for area closure scenarios with evacuation and temporary

housing, schooling, health care, mental health care, and alternative water

supplies;

ii. availability of hazardous waste treatment facilities to account for, treat,

and dispose of recovered oil and oily debris, including oil-product

combinations;

iii. availability of equipment and personal protective equipment for agent

product use;

iv. availability of adequately trained operators and workers with 40 hours of

HAZWOPER training and prescreen health baselines (no exceptions); and

v. the best available methods means to monitor impacts of oil and oil-product

combinations; application, efficacy, and impacts of product agent use in

the environment; and impacts of oil, product, and oil-product combinations

to worker and public health;

vi. inventory, approved storage and staging locations, and manufacturing

capability of available desired agents products; and

vii. notification within 24 hours of spills and product use to health care

providers and the public in the language(s) spoken in the impacted region.

§300.910(a)(2) Preauthorization Plan Approval.

Proposed subtitle change

JUSTIFICATION

As explained in the justification for paragraph (a) of this section, preauthorization plans

cannot exist without their parent ACP. Just as agencies are bound to implement the

preauthorization plans during spill response, they are similarly bound to implement all of

the other required elements of the ACPs. Therefore, ACPs must also be referenced,

and the title must properly refer to both.

RECOMMENDATION

Approval of Preauthorization Plans Approval as Part of Area Contingency Plans.

JUSTIFICATION

Consistent with the General Overview and Justification for this section, we recommend

adding authorization for federally recognized Tribal governments, and requiring

consultation for protection of worker safety and health, and public health and welfare,

with Dept. of Labor/ OSHA and Dept. of Health and Human Services/ CDC,

respectively, for review and approval of Area C-Plans.

Regarding withdrawal of concurrence, EPA proposes to proceed in these situations with

the objectionable activity while continuing to consult, rather than concur, with the key

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entities. We are concerned that the proposed rule practically guarantees that the

response will do more harm. For example, if NOAA withdraws its concurrence because

of seasonal aberrations in presence of endangered species, then proceeding with

activities such as use of dispersants or an in-situ burn could conceivably do more harm

instead of mitigating harm. Or if OSHA withdraws its concurrence because of high

incidences of sick workers with similar symptoms in one area, then continuing with the

offending activity could conceivably do more harm.

RECOMMENDATION (edits)

The EPA representative to the RRT, the Department of Commerce and the Department

of the Interior natural resource trustees, the Department of Labor/OSHA and

Department of Human Health and Services/CDC representatives to the RRT, and, as

appropriate federally recognized Tribal representatives and the RRT representative

from the state(s) with jurisdiction over waters and adjoining shorelines within the ACP

preauthorization plan area shall review and either approve, approve with modification,

or disapprove the preauthorization plans developed by the RRT and/or the Area

Committees and federally recognized Tribal governments.

Withdrawal of concurrence means the preauthorization plan becomes invalid and the

authorization of use for chemical or biological agents, or other spill mitigating devices

and substances, must cease until conditions are met and concurrence resumes. be

performed according to paragraph (b) of this section. The appropriate agencies, RRTs,

federally recognized Tribal representatives, Area Committees, and Citizens’ Advisory

Councils shall address the withdrawal and the RRT shall notify the NRT of the final

status of the ACP and preauthorization plan within 30 days from withdrawal, or less if

the matter was successfully resolved in the interim.

910(a)(3) Preauthorization Plans Reviews.

Proposed subtitle change

JUSTIFICATION

As explained in the justification for paragraph (a) of this section, preauthorization plans

cannot exist without their parent ACP. Just as agencies are bound to implement the

preauthorization plans during spill response, they are similarly bound to implement all of

the other required elements of the ACPs. Therefore, ACPs must also be referenced,

and the title must properly refer to both.

RECOMMENDATION (edits)

Review of Preauthorization Plans Review as Part of Area Contingency Plans.

JUSTIFICATION, CONTINUED

Reviewers: Consistent with our request that federally recognized Tribal governments

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and Area Committees develop ACPs, including preauthorization plans, we find that

these entities should be tasked with reviewing the plans. In cases where ACPs were

implemented because of an oil spill response, requiring these entities to review the plan

would also serve as an open and honest critique on plan implementation by the RRT

and/or NRT.

After initial review by the original entities that developed the plans and consistent with

our request to integrate consultation with agencies tasked with protection of worker

safety and health, and public health and welfare, we request that EPA includes OSHA

and DHHS in final review and approval of the plans. We request that federally

recognized Tribes are also recognized with authority to coordinate and consult with

these agencies and entities for final approval of all plans.

Normal Review Cycle: Given the rapid expansion of UOG infrastructure and activities

and increase in spills of UOG, the relentless offshore push of leasing and drilling into

ever deeper water – now over twice the depth of the BP DWH, the projected drilling in

the Arctic, and the new developments in oil spill response techniques and products, we

find that the normal review cycle should be shortened to 2 to 3 years to keep ACPs,

including preauthorization plans, current and viable. Some states review their ACPs on

an annual basis.

Criteria for Interim Review Cycle: We request addition of a few more criteria that would

trigger an interim review of the ACP and the preauthorization plan, including:

√ use of the exemption in §300.910(d), as this would create an incentive for OSC

to use this exemption sparingly;

√ extended use duration over 96 hours during any single spill incident, as long-term

environmental or human health monitoring may inform decisions concerning conditions

of agent use;

√ worker or public health concerns, as raised from rapid response assessment

tools such as community surveys developed as part of ACPs; and

√ withdrawal of concurrence by any of the agencies, RRT representatives, or Tribal

governments, as this situation indicates unforeseen circumstances that will need to be

addressed and remedied.

RECOMMENDATION (edits)

The RRT and/or Federally recognized Tribal governments and the Area Committees

must review, and revise as needed, ACPs, including preauthorization plans, at least

every 2 to 3 years or: after a major discharge or after a Spill of National Significance

(SONS); to address revisions of the Schedule; to reflect new listings of threatened

and/or endangered species; to evaluate circumstances for, and consequences of, using

the exemption in §300.910(d); to address use of any product for extended duration of

over 96 hours during any single spill incident; to address worker safety or public health

concerns as raised from rapid response assessment tools; to evaluate and remedy

circumstances leading to a withdrawal of concurrence; and to address any other change

that may impact the conditions under which the use of chemical and biological agents or

other products is are preauthorized.

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The designated EPA RRT representative, the Department of Commerce and the

Department of the Interior natural resource trustees, 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 the waters of the area to which a preauthorization plan

applies shall review and either approve, approve with modification, or disapprove any

revisions to the preauthorization plans.

NEW SECTION

§300.910(a)(4) Transition of Existing Preauthorization Plans in Area Contingency

Plans to the New Schedule

JUSTIFICATION

As part of this rulemaking, EPA proposes to require that all products currently on the

Schedule must be retested under the new rules and protocols within a 2-year period

after the date of the final rulemaking. §300.955(f). This may likely mean that some

products currently listed in preauthorization plans may not be listed on the new

Schedule. However, of greater concern is that preauthorization plans cannot, by nature,

fulfill the statutory mandate to identify the waters where product may be used and the

quantity that can be used safely during an actual oil spill response. This is impossible to

predetermine, given all the variables, and by necessity requires an incident-specific,

concurrence and consultation, decision-making process. It is also very likely that none

of the existing preauthorization plans include the parameters proposed in paragraph

(a)(1) of this section, although some Area C-Plans may include some of these

parameters.

From this, we find that the President should issue an Executive Order directing any

FOSC to disregard preauthorization plans for oil spill response. Further, the EO should

direct EPA to fulfill the mandate of OPA90 by designating Area Committees and

Citizens’ Advisory Councils to create ACPs (not RCPs-ACPs). EPA should require

operators in the area covered by the plan to fund these entities as part of their

contingency plans. Further, if preauthorization plans are still required, EPA should

require new or updated preauthorization plans within two years after the completion of

the proposed transition period for products to the new rules and Schedule.

RECOMMENDATION (alternative language if President does not strike preauthorization

plans)

All preauthorization plans, in development or in existence, as of 1994 will be null and

void effective [24 MONTHS FROM THE EFFECTIVE DATE OF FINAL RULE]. To

transition from the current Schedule to the new Schedule, new and updated

preauthorization plans will be required by [36 MONTHS FROM THE EFFECTIVE DATE

OF FINAL RULE]. In the interim 12 months, the OSC may authorize the use of any

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products* on the new Schedule for their intended purpose by obtaining the incident

specific concurrences described in §300.910(b) unless otherwise directed by the EPA

Administrator in accordance with concurrent authority under section 311(d)(2)(G) of

FWPCA and Executive Order 12777.

* refers to our proposed definition

§300.910(b) Use of Agents Identified on the Schedule on Oil Discharges Not

Addressed by a Preauthorization Plan.

Proposed subtitle change

JUSTIFICATION

See justification of for (a).

RECOMMENDATION (edits)

Use of Agents Identified on the Schedule and Other Spill Mitigating Devices and

Substances on Oil Discharges Not Addressed by an Area Contingency Plan a

Preauthorization Plan

JUSTIFICATION, CONTINUED

Consistency with other subsections and General Overview and Justifications.

If ACPs don’t have preauthorization plans, then the default document is the ACP (not

RCP-ACP). The law requires “that all navigable waters, adjoining shorelines, and waters

of the exclusive economic zone are subject to an Area Contingency Plan…” [33 USC

§4202(b)(1)(A)] There is no legal excuse not to have these plans in place around and

across the nation. There should be standing documents in all Areas such as the

Memoranda of Understanding for consultation with agencies and Memoranda of

Agreement for consultation with federally recognized Tribal governments.

ACPs are the guiding documents during an oil spill response and each of these plans

should have the basic elements outlined below and currently in paragraph (a)(1) of this

section. However, the proper place to develop preauthorization plans with the requisite

level of detail is in Subpart C Planning and Preparedness, which is outside the scope of

this rulemaking. A preauthorization plan should be an annex to the ACP, similar to the

existing and required Annex for protection, rescue, and rehabilitation of wildlife and the

proposed Annexes for protecting workers and the general public. It is not a stand-alone

plan; it a subpart of an entire response plan that the OSC is mandated to implement

during oil spill response.

RECOMMENDATIONS (edits)

For discharge situations that are not addressed by the preauthorization plan developed

pursuant to paragraph (a) of this section and as part of an Area Contingency Plan in

Subpart C, the OSC may authorize the use of appropriate chemical or biological agents

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identified on the Schedule such products for their intended purpose on an oil discharge

with the concurrence of the designated EPA RRT representative and, as appropriate,

the concurrence of federally recognized Tribal representatives and the RRT

representatives from the state(s) with jurisdiction over the waters and adjoining

shorelines threatened by the release or discharge, and the concurrence of in

consultation with the Department of Commerce and the Department of the Interior

natural resource trustees, and the Department of Labor/OSHA and Department of

Human Health and Services/CDC representatives to the RRT, unless otherwise directed

by the EPA Administrator in accordance with concurrent authority under section

311(d)(2)(G) of FWPCA and Executive Order 12777. In meeting the provisions of this

paragraph, the OSC must consider and document––

NEW SECTIONS

(1) the parameters for the use of agents products including: the quantities to be

used, the duration of use, the depth of water, the distance to shoreline and proximity to

populated areas, and

(A) the source and type of oil spilled;

(B) a priority for products containing only non-toxic ingredients or products

that have received EPA’s Design for the Environment recognition;

acceptance criteria;

(D) specific limits for the quantities and the duration of use;

(E) specific limits for water depth, distance to shoreline, and proximity to

populated areas and water intake structures;

(F) a Memorandum of Understanding among the FOSC, OSHA, and the

Trustees for Natural Resources to clarify OSHA’s role to provide technical

assistance within the Unified Command structure; to establish procedures

for concurrence and coordination to allow OSHA to provide health and

safety assistance to personnel throughout the spill-impacted area

including outside of OSHA’s geographic authority; and to establish

procedures for concurrence between the OSHA and the Trustees for

Natural Resources to integrate evidence-based worker health data and

concerns generated from the applicable ACs within the Unified Command

structure;

(G) a Memorandum of Understanding among the FOSC, DHHS/ CDC, and the

Trustees for Natural Resources to clarify CDC’s role to provide technical

assistance within the Unified Command structure; to establish procedures

for concurrence and coordination between the FOSC and CDC to allow

DHHS to provide health and safety assistance to the general public

throughout the spill-impacted area; and to establish procedures for

concurrence between the OSHA and the Trustees for Natural Resources

to integrate evidence-based public health data and concerns generated

from the applicable ACs within the Unified Command structure;

(H) Memoranda of Agreement, associated protocols, and consultation and

coordination policies between the Secretary of the Department in which

the Coast Guard is operating and federally recognized Tribes in the

geographic region covered by the Area C-Plan to establish cooperative

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arrangements for oil pollution prevention, preparedness, and response, to

provide Indian Tribes grant and contract assistance; and

(I) a Quality Assurance Program as part of an approved Area C-Plan; and

(J) a completed environmental baseline monitoring program, also as part of

an approved Area C-Plan;

(2) local and regional factors including: should address factors such as

environmentally sensitive resources or restricted areas that might be impacted by

discharged oil; agent inventory and storage locations; agent manufacturing capability,

availability of equipment needed for agent use, availability of adequately trained

operators; and means to monitor agent use in the environment.

(A) various environmental monitoring scenarios for tracking air- and water-

borne pollutants;

(B) the existence and location of vulnerable populations, environmentally and

culturally sensitive resources, or restricted areas such as drinking water

supplies or sources and infrastructure critical to public welfare that might be

impacted by discharged oil and product use; and

(3) logistical factors including:

(A) provisions for area closure scenarios with evacuation and temporary

housing, schooling, health care, and alternative water supplies;

(B) availability of hazardous waste treatment facilities to account for, treat, and

dispose of recovered oil and oily debris, including oil-product combinations;

(D) availability of adequately trained operators and workers with 40 hours of

HAZWOPER training and prescreen health baselines (no exceptions);

(E) the best available methods to monitor impacts of oil and oil-product

combinations; application, efficacy, and impacts of product use in the

environment; and impacts of oil, product, and oil-product combinations to

worker and public health;

(F) inventory, storage and staging locations, and manufacturing capability of

desired products; and

(G) notification within 24 hours of spills and product use to health care providers

and the public in the language(s) spoken in the impacted region.

JUSTIFICATION

EPA proposes to provide greater flexibility to OSCs for authorizing use of burning

agents, noting that ISB (in-situ burns) appear to be gaining a more prominent role as a

response option, especially in federal waters in remote locations such as the Arctic.

Instead, we propose more stringent rules for use of burning agents, especially for the

Arctic.

We find there are too many variables to consider to preauthorize burns, as the EPA

suggests. These variables include, among others, wind direction and speed; proximity

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to urban populations, remote villages of federally recognized Tribes, or vulnerable

populations like those living along the fringe of land and sea in southern Louisiana;

seasonal proximity to air-breathing and possibly endangered or threatened marine

mammals; availability of burning agents especially in remote locations other than the

inventory from the nearest Native village; and availability of health care providers

especially in remote locations. ISBs should be authorized only after consideration of

these variables, and only after tools are in place to monitor the ISB.

Further, we find that the best people to contribute to the decision-making process,

especially in remote areas, are the people and health care providers who live there, not

the OSC or the spiller. During the EVOS, the OSC authorized an ISB without

considering wind direction and speed, and proximity to the Native Village of Tatitlek.

The burn caused acute illnesses of vomiting, dizziness, nausea, headaches, and more,

in this downwind community.

176

During the BP DWH disaster, seven fishermen with the

in-situ burn teams were taken by Medevac life-flights from their fishing boats on the

same day and flown directly to a hospital for treatment. NIOSH later dismissed

exposure to chemical dispersants, but the PAHs from the burn itself can cause acute

respiratory symptoms (see Definitions, Oil).

Finally, we reiterate the point we raised earlier: We do not support use of refined

petroleum products as burning agents, especially in the Arctic, for environmental and

social reasons discussed elsewhere (see Definitions, Burning Agents). Oil does not

ignite well, if at all, in cold sea and air conditions. It is not valid to assume that burning

agents will all rapidly burn off during use. We find that if EPA authorizes refined

petroleum products as burning agents, then the spiller should be fined for discharging

the additional oil as well – and further, such products should be listed on the Product

Schedule to establish a basis for monitoring use and impacts to the workers, the public

and the environment.

RECOMMENDATION (edits)

For authorized in-situ burns, the The OSC, with the concurrence of the EPA,

Department of Labor/OSHA, and Department of Human Health and Services

representatives to the RRT, the Department of Commerce and Department of Interior

natural resource trustees, and federally recognized Tribal representatives and RRT

representatives from the states with jurisdiction over the waters of the area, may

authorize the use of burning agents on a case-by-case basis. If refined petroleum

products are used as burning agents, then the responsible party will be subject to a fine

based on the amount of burning agent discharged.

(d) Exceptions

176

Ott, Sound Truth, p. 23.

Alaska Dept. of Environmental Conservation, 1993, The EVOS. Final Report, State of Alaska

Response, prepared by E. Piper, Anchorage, AK, June.

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JUSTIFICATION

In past spills, the OSC has focused on the threat from oil and has not considered that

products might also pose a threat, alone or in combination with oil, to humans and the

environment. We find that the OSC has, in fact, demonstrated remarkably poor

judgment about use of products on the Schedule in routine spill response. The bull-

headed use of dispersants during the BP DWH is just the most recent example with the

science now showing that dispersant use does more harm than good to human health

and the environment (see Definitions, Dispersants). Because of this single-minded

focus on oil, we find that more heads are better than one and that the OSC’s decisions

need to be tempered with a dose of concern for worker health, public health, and the

environment with Tribal input, consistent with our earlier comments.

In addition, we find that EPA’s proposed rule to allow use of products that are not listed

on the Schedule negates the entire purpose of contingency planning. Product use is a

critical concern, especially now with the increase in spills of UOG in fresh water that

serve as municipal water supplies and crop irrigation. It’s also a concern for municipal

water and wastewater infrastructure, given that UOG spills can occur, and have

occurred, right in neighborhoods where oil has flowed into storm drains. It’s also a

concern for public health and worker health.

RECOMMENDATION (edits)

The OSC may authorize only the use of any chemical or biological agent, whether it is

identified or not on the Schedule without obtaining the immediate concurrence of the

designated EPA RRT representative, the Department of Labor/OSHA, and the

Department of Human Health and Services representatives to the RRT, the Department

of Commerce and Department of Interior natural resource trustees, and the federally

recognized Tribal representatives and, as appropriate, the RRT representatives from

the state(s) with jurisdiction over the waters and adjoining shorelines threatened by the

release or discharge, when, in the judgment of the OSC, the use of the agent is

necessary to prevent or substantially reduce a threat to human life. If an OSC

authorizes the use of an agent pursuant to this paragraph, he or she shall immediately

notify and provide documentation of the circumstances requiring and the reasons for

use of the agent to the EPA RRT representative and, as appropriate, the RRT

representatives listed above and to Area Committee, which shall immediately notify the

public. from the affected state(s) and, the Department of Commerce/Department of the

Interior natural resources trustees. Use of any agent beyond 48 hours under this

exception shall be in accordance with paragraphs (a) or (b) of this section.

(e) Prohibited Agents

Proposed subtitle change

JUSTIFICATION

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Consistency with other sections by including other oil spill mitigating devices and

substances.

RECOMMENDATION (edits)

Prohibited Agents and Other Spill Mitigating Devices and Substances

JUSTIFICATION, CONTINUED

Regarding sinking agents: We support EPA’s prohibition against use of sinking agents.

However, we find EPA’s proposed definition of sinking agents renders this prohibition

meaningless. Therefore, we request the prohibition against use of sinking agents is

coupled with our proposed definition of sinking agents, which considers agents and

other products irrespective of specific gravity.

Regarding NPs and NPEs: We support EPA’s proposed rule to prohibit agents or other

products that contain such substances.

Regarding additional substances: Because of the inherent limitations of science and

standards-based protocols, evidence of harm is often found at levels below those

considered “safe” by the EPA. Such is the case with endocrine disrupters and other

known or suspected human health hazards. For example, EPA has literally spent almost

two decades fulfilling its legal mandates under the Food Quality Protection Act and the

Safe Drinking Water Act to develop screening tests for endocrine disrupters. Meanwhile,

the weight of accumulated evidence strongly suggests that such chemicals cause much

harm to humans and other organisms. Similarly, chemicals that suppress the immune

system, interfere with growth and development of fetuses, are neurotoxins, cause

cancer or act as mutagens, or act to lyse (break apart) red blood cells – also can cause

much harm.

We find that there is sufficient information for a reasonable person to conclude that use

of products containing such substances would do more harm than good and that,

therefore, products with these ingredients should be prohibited.

Further, we find that some products such as the Corexit dispersants have curious

statements on their MSD Sheets or SD Sheets. For example, Section 6 of MSDS list

accidental release measures. The MSD Sheets for Corexit 9527A and Corexit 9500A

both state under Environmental Precautions, “Do not contaminate surface water.”

Under Methods for Cleaning Up large spills, the MSD Sheets warn, “Contain liquid

using absorbent material, by digging trenches or by diking. Reclaim into recovery

or salvage drums or tank truck for proper disposal. Contact an approved waste

hauler for disposal of contaminated recovered material. Dispose of material in

compliance with regulations indicated in Section 13 (Disposal Considerations).

During the BP DWH disaster nearly 2 million gallons in total of these dispersants were

intentionally released – spilled – into the surface and subsurface waters of the Gulf of

Mexico with no thought or intention of cleaning them up or recovering them from the

environment in flagrant disregard of the manufacturer’s warning labels. We find this

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makes absolutely no sense. We believe that such simple and straight-forward

precautions on MSDS should be followed and that products that carry such precautions

should be also prohibited from intentional use on an oil spill.

Regarding CBI: In this rulemaking, EPA proposes that manufacturers must disclose all

product ingredients. §300.950(b). We support this new rule for reasons discussed in

that section and recommend reiterating it as a prohibition.

Regarding categories of agents: As discussed elsewhere, we recommend – banning

refined petroleum products for use as burning agents; banning use of sorbents in bulk

form; and banning dispersants in waters with less than 20 ppt salinity or colder than 10º

C (50º F).

RECOMMENDATION (edits)

Notwithstanding paragraph (d) of this section, the OSC may not authorize the use of the

following:

(1) Sinking agents*, or any other chemical agent, biological agent, or any

substance that acts as a sinking agent* when mixed with oil. and

(2) Chemical or biological agents or any substance that have contain––

(A) either nonylphenol (NP) or nonylphenol ethoxylates (NPEs) as components;

(B) endocrine disrupting compounds (EDCs);

Confidential Business Information; and

(D) known or suspected human health hazards as listed on the MSDS or SDS.

(3) Chemical or biological agents or any substances that carry warnings such as “Do

not contaminate surface water,” or “Keep out of sewers, ditches, drains, and

waterways,” or special precautions for recovering and properly disposing of

product.

(4) Refined petroleum products as burning agents.

(5) Sorbents in bulk form.

(6) Dispersants in waters of less than 20 ppt salinity or colder than 10º C (50º F).

* refers to our proposed definition of sinking agents, not EPA’s proposed

definition

ALTERNATIVE RECOMMENDATIONs

If EPA is not going to prohibit these additional substances, then we request that agents

or other products with such substances are clearly labeled as containing these

substances. This would allow Area Committees to prohibit use in the ACPs.

If EPA does not prohibit refined petroleum products as burning agents and sorbents in

bulk form, then we request these agents be added to the Schedule in order to require

pre-screening testing and pre- and post-use monitoring of impacts to people (burning

agents) and the environment (burning agents and sorbents).

If EPA does not prohibit certain use of dispersants as listed, then we request these uses

be listed under Limitations in §300.915(b).

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(f) Storage and Use of Agents

Proposed subtitle change

JUSTIFICATION

Consistency with other sections by including other oil spill mitigating devices and

substances. Some burning agents may have a shelf life, for example.

RECOMMENDATION (edits)

Storage and Use of Agents and Other Oil Spill Mitigating Devices and Substances

JUSTIFICATION, CONTINUED

In general we support EPA’s proposed rule. We request in addition that any tests are

conducted by certified labs, and that shelf life for biological agents and bioremediation

agents is limited to one year as living products will degrade more quickly than chemical

agents. For example, the vitality and potency of probiotics declines at about 5 percent

per month, although cool, dry conditions prolong shelf life.

RECOMMENDATION (edits)

No changes proposed through “end user location.”

If testing demonstrates the expired product has maintained its integrity, the

product chemical agents except bioremediation agents may be used for an

additional 5 years from the date of the testing described above and biological

agents and bioremediation agents may be used for an additional 1 year from the

date of the testing described above. The responsible party, or its representative,

must re-label the tested product lots and maintain test results and document all of

the information under § 300.915(a)(17) and (a)(18) until used. The owner or

operator of a facility or vessel must ensure the testing of re-labeled products every

5 years for chemical agents except bioremediation agents and every year for

biological agents and bioremediation agents. Products that list an extended or

indefinite shelf life must still comply with the requirements under this section.

(g) Supplemental Testing, Monitoring, and Information

JUSTIFICATION

We support this concept, but do not agree EPA’s proposed rule to put the spiller in

charge of the monitoring science! We find this is a breach of the government's fiduciary

duty to protect the public trust resources. The spiller will likely do its own testing if the

proposed rules become a requirement, but such testing will lack credibility from the

public’s perspective. For example, Exxon’s spill studies in the wake of the EVOS are

stellar examples of advocacy science. Exxon scientists biased their studies with

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underpowered statistical designs so the tests could not detect spill effects; data

averaging to eliminate differences between oiled and unoiled sites; mismatched control

and oiled sites to skew comparisons; improperly preserved samples to reduce

concentrations of aromatic hydrocarbons; selective data reporting; and more.

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short, Exxon’s studies revealed little about the true nature of the Sound – as would be

expected from a company that was trying to minimize liability to its shareholders.

Any monitoring done on behalf of the public interest absolutely needs to be overseen by

an independent body such as SSC or a contractor to the local Citizens’ Advisory

Council. Funding for such studies can be deducted from fines and penalties after a spill

event. As part of the planning phase, funds for monitoring studies should be part of the

contract responsibilities of the area Citizens’ Advisory Council. If industry withholds

funds for such studies, then Area Committees have the choice of preauthorizing product

use.

RECOMMENDATION (edits)

The OSC, RRT, the EPA, DOL/ OSHA, DHHS/ CDC, DOI or DOC, or state

representatives on RRT, federally recognized Tribal representative, Area

Committee, or Citizens’ Advisory Council, or the Scientific Support Coordinator

(hereafter “agencies, entities, and Tribes”) may require supplementary toxicity and

efficacy testing, or available data or information that addresses site, area, or

ecosystem specific concerns relative to the use of a product for both planning and

authorization of use. During a discharge incident, the agencies, entities, and

Tribes RRTmay request that the OSC require a responsible party to Natural

Resources Trustees conduct additional monitoring associated with the use of a

product. Such additional monitoring data may include supplemental toxicity and

efficacy testing or submission of available data or information that addresses the

discharge area or ecosystem specific concerns relative to the use of a product or

that aids the OSC and/or the RRT and the Tribal representative in operational

decisions.

(h) Recovery of Oil and Agents from the Environment

Proposed subtitle change

JUSTIFICATION

Consistency with other sections by including other oil spill mitigating devices and

substances. In particular, we find this title omits substances such as sorbents, which are

routinely used during oil spill response. Further, we are concerned that the OSC may

choose not to recognize oil-product combinations, or weathered oil, as either oil or

product and so justify not removing such material.

177

Ott, Sound Truth, Chapters 12–21, especially sections “Deception by Design?” and summary

Chapter 22.

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RECOMMENDATIONS (edits)

Recovery of Oil, Agents and Other Spill Mitigating Devices and Substances, and Oil-

Product Combinations from the Environment

JUSTIFICATION, CONTINUED

We support this proposed rule in concept, as there is an incentive for the spiller not to

collect oil and oily debris because of storage, transportation, and disposal costs, despite

the fact that spillers deduct cleanup expenses as an “ordinary and necessary” cost of

business. For example, BP’s “cleanup” cost taxpayers $32 billion, according to U.S.

PIRG.

178

However, the proposed rule needs more specificity. “Adequately” is not a cleanup

standard that represents a quantifiable metric. We request a more definitive standard

and suggest that “clean” and “completed cleanup” are standards best determined by the

people who live in the area, not the OSC. We recommend adding consultation into this

process and, as a basis for consultation, we recommend that federally recognized Tribal

governments, Area Committees, and Citizens’ Advisory Councils include recovery of

products and oil-product waste as part of their ACPs in Subpart C, including

preauthorization plans in this section, to properly contain, store, transport, and dispose

of recovered oil, product, and oil-product combinations as hazardous wastes. We

request a specific list of agents and products that this rule applies to; notably, solidifiers,

sorbents, and surface washing agents, as well as oil-product combinations and

weathered oil. To repeat what we have stated elsewhere, we do not want recovered oil

and oily debris, including product, disposed of in public landfills as a matter of public

health.

RECOMMENDATION (edits)

Depending on factors such as the safety of response personnel and harm to the

environment, and as directed by the OSC and with concurrence of the designated EPA

RRT representative, the Department of Labor/OSHA, and the Department of Human

Health and Services representatives to the RRT, the Department of Commerce and

Department of Interior natural resource trustees, and the federally recognized Tribal

representatives and the RRT representatives from the state(s) with jurisdiction over the

waters and adjoining shorelines threatened by the release or discharge, the responsible

party shall ensure that any removal action adequately contains, collects, transports,

stores, and disposes of agents, substances, and oil-agent product that are intended to

be recovered from the environment as hazardous waste.

(i) Reporting of Agent Use

178

Enriquez, Francisco and Phineas Baxandall, 2013, Settlement loophole in tax law could help

BP, U.S. PIRG, Oct 2, 2013. http://www.uspirg.org/media/usp/settlement-loophole-tax-law-

could-help-bp

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Proposed subtitle change

JUSTIFICATION

Consistent with other sections, this title should be expanded to include other oil spill

mitigating devices and substances.

RECOMMENDATION (edits)

Report of Agent Use of Agents and Other Oil Spill Mitigating Devices and Substances

JUSTIFICATION, CONTINUED

We support this proposed rule in concept, but find it should apply not only to spill

response operations but also to daily operations, any time preauthorized products are

used. Also, we request more timely notification of product use – initially and on a daily

basis thereafter – as a matter of public health and government accountability. Besides

the RRT, the public has a right to be informed of product use as a matter of public

health. People need to know what is being use, when, and where without having to file

FOIA requests with agencies months or years after the fact. This includes any daily use

of products outside of response operations. We request simultaneous notification of

federally recognized Tribal governments, Area Committees, and Citizens’ Advisory

Councils.

RECOMMENDATION (edits)

NEW SECTIONS

(i)(1) Oil Spill Response Operations. Unless already included in the OSC report

required under §300.165 of this part, within 24 hours of initiation of product use and

daily thereafter, within 30 days of completion of agent operations, the authorizing OSC

shall simultaneously provide the RRT, federally recognized Tribal representative, Area

Committee, and public the following information on the chemical and biological agents,

and other oil spill mitigating devices and substances used in response to an oil

discharge: product name, quantity and concentration used, duration of use, locations

where product was used including water depth and proximity to adjacent shorelines,

amount of product and oil-product combinations recovered from the environment, if

applicable, and any data collected and any analysis of efficacy or environmental effects.

Within 30 days of completion of product useagent operations, the authorizing OSC shall

simultaneously provide the RRT, Tribal representative, Area Committee, and public a

complete report of product use, including the quantity of recovered product, location of

where recovered product was disposed, and recommendations for continued

monitoring.

(i)(2) Use of Preauthorized Products during Normal Operations. Within 24 hours of use

of a preauthorized product during normal operations in state or federal waters, the

operator shall provide the OSC the following information on the product used: product

name, quantity and concentration used, duration of use, locations where product was

used including water depth and proximity to adjacent shorelines, the reason the product

was used, and amount of product and oil-product combinations recovered from the

environment, if applicable. Within 24 hours of notification, the OSC shall simultaneously

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provide all of the information received from the operator to the RRT, federally

recognized Tribal representative, Area Committee, and public. For the purposes of this

section, each day and time during a 24-hour period that a preauthorized product is used

during normal operations shall count as a separate incident and the notification

requirement will apply to each incident. If product is used over more than 4 consecutive

days or more than 4 days in a 30-day period, the OSC shall require monitoring under

§300.913 and reporting under paragraph (1) of this section.

§300.913 Monitoring the Use of Dispersants

While we agree with this section in concept and find it a necessary addition to fulfill the

statutory requirements of the Clean Water Act as previously discussed, we find EPA’s

proposed rules completely undermine the contingency planning process by ignoring the

function of Area C-Plans and preauthorization plans; illegally assigning responsibilities

and duties to the OSC and responsible party that are already assigned to other entities;

usurping authority from all other agencies, Tribes, and the public; and are a breach of

the fiduciary responsibilities of government to protect the public trust resources.

We find this section, as proposed, completely unworkable for reasons described below,

and we offer a new outline with some proposed language and conceptual language.

Further, we incorporate by reference the comments submitted by the Prince William

Sound Regional Citizens’ Advisory Council.

Proposed subtitle change

JUSTIFICATION

All products used in oil spill response should be monitored to fulfill the statutory

requirements as previously discussed. Monitoring product use (application efficacy) and

environmental fate and effects (eco-toxicity) are different things requiring different

approaches and study designs. Together, these are post-spill tests conducted in real

time in the real world to determine if and how well the product worked as intended. We

find this section is out of sequence: It should follow, not precede, the section that details

the data information and testing requirements. We recommend inserting this section

after §300.915 and renumbering it as §300.925.

We have several systemic concerns with this section and address each separately.

Regarding authorization of monitoring: Unlike other sections, we find that the OSC

does NOT have authority to direct or manage damage assessment. Monitoring product

use and product fate and effects in the environment fall squarely into the camp of the

Trustees for Natural Resources as damage assessment studies. The reason to

separate monitoring from spill response is because of litigation over damages.

Assigning this responsibility to the spiller will have dire consequences for any public

damages litigation, for reasons noted below, in case the reasons are not obvious.

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Consistent with other sections, we recommend that monitoring is directed by the

Trustees for Natural Resources with concurrence from agencies responsible for

protection of worker health and public health, and federally recognized Tribal

representatives and the RRT representatives from the state(s) with jurisdiction over

waters and adjoining shorelines within the area covered by the Area C-Plan.

Regarding who conducts the monitoring: After an oil spill, the spiller’s primary

responsibilities should be response operations to contain and remove the oil, and

writing checks. However, there must be a system of checks and balances to determine

if the response operations effectively and safely worked to mitigate harm to the

environment and to humans from the oil, product, and oil-product combinations; hence,

the proposed requirement for monitoring, which we support in concept. The spiller has

an understandable conflict of interest in finding harm from its spill,

179

and is prone to

conduct advocacy science, which was discussed using the example of the EVOS

science in §300.910(g). Therefore, the spiller should not be the entity conducting any

environmental monitoring. We consider such a proposal to be a breach of the

government’s fiduciary responsibility to protect the public trust resources.

There is another option: the federal, state, and Tribal representatives designated as

Trustees for Natural Resources who are “to act on behalf of the public as trustees for

natural resources,” including land, fish, wildlife, biota, air, water, ground water, drinking

water supplies, and other such resources managed or controlled by the United States,

states, and Indian Tribes, respectively. §300.600, §300.605, and §300.610, Subpart G.

The Trustees for Natural Resources selected and managed a plethora of peer-reviewed

comprehensive ecosystem studies in the wake of the EVOS. Studies were for the most

part conducted by agencies, universities, and consultants. A process was established

for public review on an ongoing basis of proposed, current, and completed studies.

Through this process, the public also became very informed about oil spill impacts and

more likely to participate in decisions involving oil activities in their area.

There are other reasons to require the Trustees for Natural Resources, instead of the

spiller, to manage the environmental monitoring program.

Longevity: Environmental monitoring for short- and long-term impacts of oil and

products should be conducted on a time scale that encompasses several life cycles of

economically and ecologically important species in the region. Comprehensive

ecosystem studies conducted in the wake of the EVOS spanned about a decade before

a consistent picture emerged from hundreds of studies.

180

Exxon scientists consistently

badgered the public trust scientists and refuted their findings, but – significantly – did

none of their own fieldwork after the initial couple years. Ideally, ecosystem monitoring

studies should continue well past immediate product use during a spill response and

should be conducted whether products are used or not, as results would inform future

damage assessment and restoration work.

179

Jacobs, Jeremy, 2015, BP wages multi-front war against spill penalties, Greenwire, April 17,

2015. http://www.eenews.net/gw

180

Peterson et al. 2003, Long-term ecosystem responses to EVOS.

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Consistency: Ideally, there should be consistency of purpose and personnel from

initial damage assessment studies to recovery studies. During the EVOS, a team of

coastal ecologists, initially contracted by Exxon in 1989, documented horrific damage

from Exxon’s pressurized hot water beach wash and, separately, from experimental use

of two Corexit dispersants on intertidal organisms. Because of Exxon’s legal strategy,

the scientists who conducted the studies were not allowed to interpret their results.

Their studies never would have been made public had not Exxon terminated the team’s

contract – and the team been hired by NOAA and allowed to continue their work for

another seven years. However, Exxon lawyers refused to give their former contractors

access to the critical pre- and immediately post-spill data the team had collected in 1989

until forced to do so through litigation.

181

Having the Trustees for Natural Resources

oversee initial environmental monitoring studies would allow a seamless transition from

critical baseline and early damage assessment studies to later restoration studies. This

would create invaluable information for the public and scientists working to protect water

and aquatic ecosystems from oil and chemical spills.

Complexity: Monitoring impacts from product use is far more complex than

proposed by EPA. By necessity, it includes having pre-spill baseline studies and

including “set-aside sites” that are only affected by oil and not product. Ideally studies

would involve teams of scientists across a wide spectrum of disciplines. Further,

tracking airborne oil and product is also critical to monitor oil and product impacts on

workers, the general public, and wildlife such as marine mammals and birds. To

coordinate research and findings among wildlife and human monitoring studies, the

Trustees for Natural Resources would have to broaden their concept of natural

resources to include humans as “biota.”

Regarding a Quality Assurance Program: We find that the OSC is not the proper

authority to judge a science-based plan; that post-disaster is not the proper time to

present a plan; and that the spiller is not the proper entity to be developing and carrying

out such a plan. Instead, we find that a QA Program should be part of a preauthorization

plan, developed as part of an Area C-Plan, by Area Committees as advised “all

agencies, entities, and Tribes” and the Scientific Support Coordinator that are part of

program management. Further, we find that completing baseline ecosystem monitoring

and characterization of key ecologically- and economically-important species, sensitive

habitats including fresh water supplies, and vulnerable human populations should be a

priority in ACPs and part of a requirement for authorizing product use in

preauthorization plans. Without having a QA Program approved and in place, and

without completing baseline ecosystem studies, a preauthorization plan is nothing more

than a rubber-stamp exercise to preapprove – basically, dispersants – for use. It’s time

to move beyond this and actually insist on functioning plans. We recommend that an

existing QA Program as part of an approved Area C-Plan and a completed and routinely

updated ecosystem baseline survey are required conditions for preapproval of product

use.

181

Ott 2004, Sound Truth, Chapter 13.

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Note that QA Programs should consist of monitoring plans based on categories for

chemical and biological agents, as EPA has attempted to do for dispersants. This

approach would be more efficient and yield more consistent and comparable data than

individual plans developed by the spiller after a spill. Also, QA Program development

and baseline ecological monitoring should be funded by contract with operators in the

area covered by the ACP. OPA90 requires environmental monitoring of the Citizens’

Advisory Council, funded by contract with the industry operators.

Regarding monitoring for all products, not just dispersants: Studies conducted in the

wake of the BP DWH disaster demonstrated that products do not necessarily perform in

the environment as they do in the lab when tested in sterile and artificial water or when

tested alone without addition of a standard reference oil (see Definitions, Dispersants).

Let’s not repeat the mistake we made with dispersants. We won’t know if a product

works as intended in the real world unless we require environmental monitoring – for all

products – with best available technology.

Regarding limitations on monitoring: We disagree with EPA’s proposed limitations on

monitoring for very large spills (BP DWH was 42,000 to 210,000 gallons in 24 hours),

for extended use over 96 hours; or for any subsurface spill. There is much to learn from

smaller spills and small-scale application of products. What works could be scaled up

and applied to larger spills; what doesn’t should be avoided to avert the risk of

increasing damages from oil. Similarly, damage assessment and monitoring of product

impacts should begin as rapidly as possible otherwise critical data and information could

be lost. Subsurface use of products should not be allowed because the prerequisite

conditions for product use have not yet been met – there are no baseline ecosystem

studies and there are no tools to monitor impacts at the depths proposed for use.

Further, we find that these limits contravene statutory mandate: the Clean Water Act

requires the Schedule to identify the waters where products may be used and the

quantities that can be used safely. This necessitates monitoring for any size spill and for

any product use to determine what works in the real world, in what waters, and in what

quantities.

Regarding reporting of product use and monitoring: We find that data and information

obtained under the QA Program is fundamentally different than similar data and

information from the damage assessment and ecological monitoring studies for oil

alone. Once oil spills, there is no putting the genie back in the bottle. The die is cast and

the studies and litigation will commence. However, product use is optional and can be

halted if the available data and information show should more harm is occurring from

use. Therefore, we find that data and info from the QA Program should be made

available simultaneously to the OSC, “the agencies, entities, and Tribes” involved with

managing the Plan in real time, and the public, because, technically, the spiller is also

“the public” and the rest of the public has a right to know what is being used for health

concerns, how use is affecting worker and public health, and where product is going

from trajectory modeling in air and water.

RECOMMENDATION (concepts and some edits and proposed language)

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Note: We recommend using this outline, but the text in [brackets] represents

recommended concepts to include in this section, not specific wording.

§300.925 Monitoring the Use, Fate, and Effects of Chemical and Biological

Agents and Other Oil Spill Mitigating Devices and Substances

Monitoring use, fate, and effects of chemical or biological agents and other spill

mitigating devices and substances (hereafter “products”) in response to oil discharges

to waters of the U.S. or adjoining shorelines must be authorized by the Natural

Resource Trustees in accordance with the provisions of this section:

(a) Oil Spills Where Preauthorization Conditions for Product Use Have Not Been

Met.

Product shall not be used unless: the Area Committee has an existing and current

Quality Assurance Project Plan approved by the RRT, NRT, and federally recognized

Tribal representatives for approval to the OSC for covering the collection and reporting

of all environmental data as part of the preauthorization plan of the Area C-Plan; and

the Natural Resource Trustees (NRT) have completed baseline ecosystem studies in

the area impacted by the spill. Upon notification or discovery of an oil discharge, the

NRT with the concurrence of the Department of Labor/OSHA and Department of Human

Health and Services/CDC representatives to the RRT, and federally recognized Tribal

representatives and the RRT representative from the state(s) with jurisdiction over

waters and adjoining shorelines within the geographic area impacted by the oil spill

(hereafter “certain agencies, entities, and Tribes”) shall as authorized in Subpart G:

(1) Carry out short-term damage assessments from oil.

[In situations where baseline studies have not been conducted, there is a need to

rapidly characterize ecologically and economically important aquatic species and their

habitats as identified in the Fish and Wildlife and Sensitive Environments Annex to the

ACP, and a need to rapidly characterize vulnerable populations of humans including

contract workers and the general public, especially children, pregnant women, and

others as identified in the Worker Health Annex and Public Health Annex, respectively,

recommended in this rulemaking. Humans are part of the NRT’s mandate to protect the

“biota.”]

(2) Devise and carry out monitoring programs as part of long-term damage

assessments from oil.

[In all situations, damage assessment and monitoring programs should be initiated

simultaneously and as quickly as possible with peer-reviewed studies. Monitoring

programs should include ecological monitoring for fate and effects of oil, including aerial

transportation and deposition; worker health monitoring for oil impacts; and public health

monitoring for oil impacts. Examples of monitoring programs for workers and the

general public are incorporated by reference from the Coalition to Ban Toxic

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Dispersants’ Petition Supplement “Proposed Policy Revisions” §300.150–152 and as

Attachment #3 to these comments). Monitoring programs should be conducted over the

time frame of years, even decades, to fully characterize long-term damages.]

(b) Oil Spills Where Preauthorization Conditions for Product Use Have Been Met.

In addition to the requirements in paragraph (a) of this section, the NRT with the

concurrence of the Department of Labor/OSHA and Department of Human Health and

Services/CDC representatives to the RRT, and federally recognized Tribal

representatives and the RRT representative from the state(s) with jurisdiction over

waters and adjoining shorelines within the geographic area impacted by the oil spill

(hereafter “certain agencies, entities, and Tribes”) shall as authorized in Subpart G:

shall also select and manage peer-reviewed scientific studies that implement the

approved Quality Assurance Project Plan for any chemical and biological agent and

other spill mitigating device and substance that is selected for use during an oil spill

response. In implementing the QA Project Plan, the NRT shall ensure that:

(5) Implement the Approved Quality Assurance Project Plan.

[Development of the QA Project Plan and much of the detail in this entire section should

be moved to §300.910(a)(1). Approval of the QA Program should be moved to

§300.910(a)(2) and updating the plan to reviews in §300.910(a)(3).]

(6) Withdrawal of Concurrence

[Consistent with our earlier comments, withdrawal of concurrence would follow protocols

in §300.910(a)(2) and would mean cessation of product use until concurrence is

reestablished.]

(7) Establish a Daily Reporting and Public Notification Protocols

[Basically, we agree with PWSRCAC’s comments and a lot of the language in (f) except

note it should be broadened to include all products.]

§300.915 Data and Information Requirements for Product Schedule Listing

We incorporate by reference the comments submitted by the Prince William Sound

Regional Citizens’ Advisory Council for this entire section. We have added additional

concerns and recommendations as needed.

(a) General Product Information

COMMENTS

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GENERAL – Regarding substances and agents not listed on the Schedule: We find

that creating a separate Product List for sorbents with no requirements for screening or

monitoring tests of these products contravenes the statutory mandates of the Clean

Water Act, especially since inorganic or synthetic sorbents in bulk form will act as

sinking agents. Even inert compounds can have a harmful impact on the environment,

as exemplified by plastic micro-beads. Similarly, some of the proposed burning agents

will also harm the environment if not completely combusted as is likely in the Arctic.

Therefore, we recommend add any chemical or biological agent or spill mitigating

device or substance that may be used in oil spill response to the Schedule.

PARAGRAPH (10) – Recommended product use procedures: We find that dispersants

and sorbents, in particular, interact with suspended particulate matter in the water

column, increasing formation of oily plumes and ultimately sedimentation and deposition

of oil. Therefore, we recommend including turbidity as a variable in this paragraph.

PARAGRAPH (11) – Environmental fate information: Similar to the rationale for

paragraph (10), we recommend including the product’s ability to increase formation of

oily plumes; that is, it’s ability to interact with Suspended Particulate Matter or other

products to increase formation of Oil Mineral Aggregates or OMAs, in this paragraph.

RECOMMENDATIONS (as comments)

• We recommend including turbidity as a variable in paragraph (10).

• We recommend including ability to interact with Suspended Particulate Matter or

other products to increase formation of Oil Mineral Aggregates or OMAs in

paragraph (11).

JUSTIFICATION – (b) THROUGH NEW SECTION (h)

Regarding threshold criteria: Since we consider oil and some of the products in their

current formulation to be hazardous substances, we find of interest the criteria for

selection of remedies under Subpart E Hazardous Substance Response. The proposed

threshold criteria tests – or screening tests as they are called in Subpart J – include an

efficacy test and toxicity test, but these tests are not applied evenly to all categories of

agents and spill mitigating substances. There is no rationale not to apply these tests

evenly to all products. Not doing so fails to achieve the goals of Subpart J as set forth in

§300.900 and in the Clean Water Act. We recommend evenly applying the threshold

criteria tests to all products.

Further, we find that some of the prohibitions are meaningless without a screening test.

If sinking agents are prohibited, then there should be a screening test to determine, first,

if an agent or substance is a sinking agent. If it is, it’s a nonstarter and the other tests

would not be needed.

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Docket ID No. EPA–HQ–OPA–2006–0090

Also, we find it of interest that the purpose of the remedy selection process for

hazardous waste remediation is to implement remedies that eliminate, reduce, or

control risks to human health and the environment (emphasis added) [§300.430(a)],

while the comparable purpose in oil spill response is to mitigate harm. This has been

interpreted to mean “from the oil” until this rulemaking, which expands the interpretation

to mean “from the oil and spill response products.” The national response priorities

stated in the NCP are, first, safety of human life. What’s missing in oil spill response

protocols is a clear statement of purpose that we mean mitigate harm to human health

and the environment from oil and response products.

To remedy this situation – especially in light of the mounting evidence that certain oil

spill response products cause more harm than good to human health and the

environment, we have requested post-spill monitoring to identify and mitigate impacts of

the oil and products to human health for workers and the general public. Now we

request product screening tests for this same purpose. Specifically, we recommend a

full EPA EDSTAC Tier 1 screening test for all products and the water accommodated

fraction of all test oils. Only products that met the maximum toxicity standard could be

listed on the Schedule.

Regarding community acceptance criteria: Our experience during the EVOS and BP

DWH disaster with chemical agents – dispersants or products by other names but with

similar formulations – was that public opinion opposing use was largely ignored by the

Unified Command. We find this is still the case. The rules for hazardous substance

response include state and community acceptance criteria. §300.430(f)(i)(A). To remedy

this situation, we recommend adding Tribe and community acceptance criteria as

modifying criteria that must be considered in remedy selection during development of

the Area C-Plans, in particular the preauthorization plans. We eliminated state and

added Tribes, because we want to limit the acceptance criteria to people who actually

live with the immediate consequences of these decisions.

Regarding maximum acceptable standards for toxicity tests: The current rules require

acute toxicity tests for certain products, but do not set a maximum acceptable standard

– a pass/fail threshold. This means the toxicity tests are a paperwork exercise rather

than a screening tool for decision-makers to determine product desirability. To remedy

this situation, EPA proposes to add three maximum acceptable standards for the acute

toxicity test that some agent categories must meet to be listed on the Schedule. The

three proposed thresholds are: a LC

standard of greater than 10 part per million (ppm)

at the lower 95% confidence interval; an inhibition concentration for 50% of the test

species (IC

) standard of greater than 10 ppm at the lower 95% confidence interval;

and a sub-chronic No Observable Effect Concentration (NOEC) of greater than 1 ppm.

We support EPA’s attempt to establish threshold criteria for acute toxicity tests, but find

that the thresholds are far to lenient and based on levels that were thought to be toxic in

the 1970s. As discussed elsewhere (see Definitions, Oil), it is well established that oil is

harmful to biological organisms including humans at levels of 1–20 parts per billion

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Docket ID No. EPA–HQ–OPA–2006–0090

(ppb). We’ve known since the EVOS studies were published in the early 2000s that

PAHs concentrations of 1–20 ppb sicken individual aquatic organisms and reduce entire

populations of fish, birds, and mammals.

182

More recent studies on early life stages of

bluefin tuna, yellowfin tuna, and amberjack found fish embryos were very sensitive to

PAH-induced cardiotoxicity and that “exposures of 1–15 ppb total PAH cause specific

dose dependent defects in cardiac function in all three species with circulatory

disruption culminating in pericardial edema and other secondary malformations.”

183

Recent studies on humans collaborate the wildlife studies: prenatal exposure to PAHs

was found to be associated with subsequent cognitive and behavioral disturbances in

childhood in a dose-response relationship.

184

Scientists also recently found that one of the toxic dispersants used in response to the

BP DWH disaster, Corexit 9500A, damages epithelium cells within lungs of humans and

mice, and gills of zebrafish and blue crabs.

185

There is no point in killing aquatic life that

survives the oil impacts with even more toxic chemical products to allegedly “mitigate”

toxic impacts of oil! It’s also standard practice to set the NOEC level at 100 times lower

than the LC

level. Therefore, we recommend reduction of proposed thresholds by

10,000 times for the LC

standard to 1 ppb; 10,000 times for the IC

standard to 1 ppb;

and 100,000 times for the NOEC standard to 1 part per trillion. These thresholds should

also apply to EPA’s EDSTAC Tier 1 screening test for all products and the water

accommodated fraction of all test oils.

Regarding minimum acceptable standards for efficacy and sinking tests: The current

rules require efficacy tests for certain products, but do not set a minimum acceptable

standard – a pass/fail threshold – for individual products tested on individual reference

oils. The current rule allows test results from the two reference oils to be averaged,

which renders results meaningless for real world applications. This means the current

efficacy tests are also a paperwork exercise rather than a screening tool for decision-

makers to determine product desirability. To remedy this situation, EPA proposes to

conduct testing at two temperatures and to set minimum threshold criteria for the

different temperatures and reference oils – with no averaging of test results.

We support EPA’s attempt to establish threshold criteria for efficacy tests, but find that it

would be better to set a minimum threshold for efficacy tests of 65% at any temperature

as a minimum requirement for listing on the product Schedule, and also require

182

Ott 2004, Sound Truth, Chapter 20.

183

Incardona et al. 2014, BP DWH oil impacts developing hearts of large pelagic fish.

184

Peterson, Bradley et al., 2015, Effects of prenatal exposure to air pollutants (PAHs) on the

development of brain white matter, cognition, and behavior in later childhood, JAMA

Psychiatry, Mar 25, 2025, http://archpsyc.jamanetwork.com/article.aspx?articleid=2205842

185

Li, Fu Jun et al., 2015, Heme oxygenase-1 protects Corexit 9500A-induced respiratory

epithelial injury across species. PLoS ONE 10(4): e0122275.

doi:10.1371/journal.pone.0122275

Shepard, Bob, 2015, UAB study suggests oil dispersant used in Gulf oil spill causes lung and gill

injuries to aquatic animals, also identifies protective enzyme, UAB News, Apr 2, 2015.

http://www.uab.edu/news/innovation/item/5923-uab-study-suggests-oil-dispersant-used-in-

gulf-oil-spill-causes-lung-and-gill-injuries-to-humans-and-aquatic-animals-also-identifies-

protective-enzyme

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Docket ID No. EPA–HQ–OPA–2006–0090

manufacturers to specify a temperature range for effectiveness as a condition of listing,

as recommended by the PWSRCAC. We also recommend requiring a minimum

threshold for sinking tests of 10% at any temperature as a minimum requirement for

listing on the product Schedule.

Regarding types of tests: As stated in our supplement to our original petition for this

rulemaking, we find that the acute lethal LC

tests are very outdated. There are much

better endpoints than outright toxicity or moribund twitching after a 96-hour exposure, as

is currently the case with the LC

tests. These old tests really do not yield much

information about product safety in real world applications as is required by the Clean

Water Act. We recommend requiring, at a minimum, mutagenicity tests using current

methods that evaluate all standard measures including, but not limited to DNA adduct

formation, sister chromatid exchanges (SCE), and epigenetic genotoxicity.

We support PWSRCAC’s recommendation that efficacy, toxicity, and sinking tests must

be done with certified chemists and scientists working in certified laboratories using

certified procedures. This means we support use of the ASTM swirling flask test for

efficacy, not the proposed Baffled Flask Test. We support use of best available

technology.

We have no recommendations at this time for sinking tests, other than to observe that

the current efficacy test or the Baffled Flask Test, if it was certified, would seem to

double as sinking tests.

Noncertified tests and those developed by industry (Baffled Flask Test) are grounds for

concern about test validity and advocacy science. We request that EPA audit or

independently vet studies to ensure fairness and transparency. We require independent

(not government or industry) science or rigorous peer review of all studies conducted by

the spiller or product vendor or manufacturer.

Regarding what is tested: Currently EPA requires that toxicity screening tests are

conducted using the product alone and, for certain agents, on oil-product combinations.

Screening tests conducted in the absence of reference oils give no indication of whether

product-oil combinations are more toxic than product alone. We find this information is

relevant and necessary to help determine if the product can be used safely in waters of

the U.S. Therefore, we recommend that all the screening toxicity tests are conducted

with product and oil-product combinations.

Regarding types of reference oils: See justification in Appendix C to Part 300. An

additional limitation is needed in each agent category specifying that product use is

limited to conventional oils unless the product is specifically tested using UOG reference

oils.

(b) Dispersant Testing and Listing Requirements

RECOMMENDATIONS ON LIMITATIONS (edits)

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Docket ID No. EPA–HQ–OPA–2006–0090

(b)(3) Limitations. Product listing would be for use only in saltwater environments of

greater than 20 parts per thousand salinity and temperatures greater than 10ºC (50ºF).

Product use in freshwater and brackish environments of less than 20 ppt salinity is

strictly prohibited, no exceptions. [Note: we also recommend a threshold criterion for

turbidity. Has EPA considered a threshold?]

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

We recommend that EPA require the following:

• A sinking test with a maximum standard of 10% to screen all products; only products

that do not act as sinking agents* may be listed on the Schedule (* refers to our

proposed definition of sinking agents).

• A full EPA EDSTAC Tier 1 toxicity screening test for all products and the water

accommodated fraction of all test oils; only products that met the maximum toxicity

standard of 1 ppb may be listed on the Schedule.

• A more sensitive toxicity screening protocol: a mutagenicity test using current

methods that evaluate all standard measures including, but not limited to DNA

adduct formation, sister chromatid exchanges (SCE), and epigenetic genotoxicity.

• Proposed thresholds for the acute lethal LC

standard of 1 ppb; for the IC

standard of 1 ppb; and for the NOEC standard of 1 part per trillion. These thresholds

should also apply to the mutagenicity tests and EPA’s EDSTAC Tier 1 screening test

for all products and the water accommodated fraction of all test oils.

• All toxicity tests are conducted with product and oil-product combinations.

• All toxicity tests, efficacy tests, and sinking tests are conducted with certified

chemists and scientists working in certified laboratories using certified procedures

and best available technology.

• EPA audit or independently vet tests with third-party (non-government or non-

industry) scientists or rigorous peer review for all studies conducted by the spiller or

product vendor or manufacturer.

• A new limitation specifying that product use is limited to conventional oils unless the

product is specifically tested using UOG reference oils.

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

Same as for (b) above.

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(d) Bioremediation Agent Testing and Listing Requirements

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

Same as for (b) above.

In addition, we recommend that EPA add a new limitation that prohibits use of non-

indigenous or genetically engineered bioremediation agents that may colonize areas

where they are being applied, as recommended by the PWSRCAC.

(e) Solidifier Testing and Listing Requirements, including (a)(1)–(21)

General Product Information

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

We support the PWSRCAC’s concern that solidifiers are a problem as they preclude

mechanical containment and recovery and recommendation that EPA remove solidifiers

from the Schedule.

Alternatively, if EPA continues to allow solidifiers, our recommendations are the same

as for (b) above.

(f) Herding Agent Testing and Listing Requirements, including (a)(1)–

(21) General Product Information

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

Same as for (b) above.

(g) Sorbent Testing and Listing Requirements

JUSTIFICATION

We request that EPA add sorbents to the Schedule and require certain General

Information listing requirements, including [(a)(1)–(8), (10), (11), (12)(i), (iv), and (vii),

(19), and (20)].

For reasons discussed earlier (see Definitions, Sorbents), we request that EPA prohibit

use of sorbents in bulk form as they act as sinking agents, based on our proposed

definition and in reality. Otherwise, without screening tests and monitoring tests, there is

no way to determine if sorbents in bulk form can be use safely in waters of the U.S.

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If EPA allows sorbents to be used in bulk form, then we request EPA to add listing and

testing requirements for such use.

RECOMMENDATION (as comments)

We recommend that EPA:

• Add sorbents to the Schedule and require certain Listing General Information,

including [(a)(1)–(8), (10), (11), (12)(i), (iv), and (vii), (19), and (20)].

• Prohibit use of sorbents in bulk form.

Alternatively, if EPA allows sorbents to be used in bulk form, then:

• Add listing and testing requirements for sorbents in bulk form.

NEW SECTION

(h) Burning Agent Testing and Listing Requirements.

JUSTIFICATION

For reasons discussed earlier (see Definitions, Burning Agents), we request that EPA

prohibit use of refined petroleum products in oil spill response.

We also request that EPA add burning agents to the Schedule and require Listing and

Testing Information. Otherwise, without screening tests and especially monitoring tests

for impacts to human health and the environment, there is no way to determine if

burning agents can be use safely in waters of the U.S.

RECOMMENDATIONS (as comments)

We recommend that EPA:

• Prohibit use of refined petroleum products in oil spill response.

• Add burning agents to the Schedule and require Listing and Testing Information.

§300.950 Submission of Confidential Business Information

RECOMMENDATION (as comments)

We support EPA’s proposed rule to require product manufacturers to identify all

ingredients. Products with specific ingredients identified as Confidential Business

Information should not be listed on the Schedule and thus precluded from use.

§300.955 Addition of a Product to the Schedule

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(e) Changes to a Listed Product

JUSTIFICATION

We find that one particular toxic product that was used during the EVOS and associated

with worker health issues, Inipol EAP 22, was discontinued at some point. However, it is

still listed on the Product Schedule. We are concerned that our waters could become a

dumping ground for Inipol and other similarly discontinued-but-still-listed products for

companies that seek an inexpensive way to reduce unwanted inventory. We

recommend that product discontinuation is grounds for mandatory removal from the

Schedule.

RECOMMENDATION (as comments)

We support EPA’s proposed rules in this section. In addition, we recommend

clarification that discontinued products will be removed from the Schedule.

(f) Transitioning Listed Products from the Current Schedule to the New

Schedule

JUSTIFICATION

We strongly support EPA’s recommendation to require retesting of all products on the

current Schedule to the new Schedule, no exceptions. Thank you! We recommend

shortening the transition period from two years to one year because of the increased

frequency of oil spills in U.S. waters and increased risk of harm from using products on

the old Schedule.

RECOMMENDATIONS (as comments)

We:

• Support EPA’s recommendation to require retesting of all products on the current

Schedule to the new Schedule, no exceptions.

• Recommend shortening the transition period from two years to one year.

§300.970 Removal of a Product from the Schedule

JUSTIFICATION

We have learned that our workers, children, families and friends, homes, pets and

livestock, wildlife and the air, water, and land are sickened by exposure to oil and

certain chemical and biological products used in oil spill response. We have learned that

the government’s standards do not protect us – we are sickened below levels the

government considers as safe. We are the ones who live with the consequences of your

decisions. We need to know that if we want products banned during oil spill response

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because we are getting sick, our government will listen to us. We, the public, need an

opportunity to request removal of a product from the Schedule and a process to make

our request valid and meaningful.

RECOMMENDATION (edits)

(a) (5) A decrease in rating of Tribe or community acceptance criteria for product

use, especially in areas where product was used; or

(6) Product discontinuation.

RECOMMENDATION (as comments)

We also request an opportunity and process for the public to petition EPA for removal of

a product from the Schedule, and we incorporate by reference the removal process

suggested in Attachment #3 in the Proposed Policy Revisions of our supplement to our

original petition for this rulemaking.

Appendix C to Part 300––Requirements for Product Testing Protocols and

Summary Test Data

We incorporate by reference PWSRCAC’s comments and recommendations for

Appendix C. In addition, we have the following comments.

GENERAL JUSTIFICATION & COMMENTS

We addressed most of our concerns about screening tests in §300.915(b). For

convenience, we repeat the recommendations below.

In addition, we are concerned about the lack of reference oils for UOG. We

support EPA’s proposed addition of a heavier weight oil, IFO-120, as a reference

oil, but this is also a conventional oil that mostly floats on the water surface. We

are concerned that use of conventional reference oils for products intended for

use on UOG will lead to erroneous and misleading information about product

toxicity and efficacy. We are concerned that products are being used on spills of

UOG with no scientific support and no knowledge of impacts to human health or

the environment. The primary author of these comments witnessed product use in

Battle Creek, Michigan, in the creek proper on July 2011.

If products are to be listed for use on UOG, then products must first be tested

using UOG reference oils and listed on the Schedule specifically for such oils.

Conventional oil is not an acceptable surrogate for UOG. By necessity, this would

require addition of at least two more reference oils: one representing dilbit, the tar

sands and diluent mixtures that are transported in pipelines, and one for the

extremely volatile Bakken shale oil or other oil produced by hydrologic fracturing.

EPA should prohibit use of all categories of agents for use on spills of UOG until

products are specifically tested using UOG reference oils.

RECOMMENDATIONS TESTING PROTOCOLS & THRESHOLDS (as comments)

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Docket ID No. EPA–HQ–OPA–2006–0090

We recommend that EPA require the following:

• A sinking test with a maximum standard of 10% to screen all products; only products

that do not act as sinking agents* may be listed on the Schedule (* refers to our

proposed definition of sinking agents).

• A full EPA EDSTAC Tier 1 toxicity screening test for all products and the water

accommodated fraction of all test oils; only products that met the maximum toxicity

standard of 1 ppb may be listed on the Schedule.

• A more sensitive toxicity screening protocol: a mutagenicity test using current

methods that evaluate all standard measures including, but not limited to DNA

adduct formation, sister chromatid exchanges (SCE), and epigenetic genotoxicity.

• Proposed thresholds for the acute lethal LC

standard of 1 ppb; for the IC

standard of 1 ppb; and for the NOEC standard of 1 part per trillion. These thresholds

should also apply to the mutagenicity tests and EPA’s EDSTAC Tier 1 screening test

for all products and the water accommodated fraction of all test oils.

• All toxicity tests are conducted with product and oil-product combinations.

• All toxicity tests, efficacy tests, and sinking tests are conducted with certified

chemists and scientists working in certified laboratories using certified procedures

and best available technology.

• EPA audit or independently vet tests with third-party (non-government or non-

industry) scientists or rigorous peer review for all studies conducted by the spiller or

product vendor or manufacturer.

In addition, we recommend that EPA:

• Add reference oils for dilbit and Bakken shale oil.

• Prohibit use of products on spills of UOG until screening tests have been conducted

using UOG reference oils. Or add a new limitation in each agent category that

product use is limited to conventional oils unless product is specifically tested using

UOG reference oils.

III. SUGGESTIONS FOR FUTURE RULEMAKINGS

We incorporate by reference and as Attachments #1–3 our revisions to Subparts

A, B, C, D, and G as suggestions for future rulemakings.

IV. EXHIBITS

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1. Tierney, Michael, 2013, Sovereign Cooperation: The Makah Tribe’s Office of

Marine Affairs and the fundamentals of partnering with Uncle Sam, Boston

College Law School, paper for Environmental Law class with Prof. Zygmunt

Plater, Nov 2013.

2. Makah Usual & Accustomed Marine Area MAP

3. Wunstell, John, LaFourche Parrish, LA, Affidavit, May 29, 2010, as provided to

Riki Ott

4. Unified Command Risk Communication: Corexit Comparison Chart as provided by

Susan Felico Price to Riki Ott

V. HISTORIC DOCUMENTS (as attachments)

1. Petition for Rulemaking Under the Clean Water Act, Nov 13, 2012,

submitted by Riki Ott, PhD, Ultimate Civics, and the Citizens’ Coalition to

Ban Toxic Dispersants

2. Supplement to Petition for Rulemaking Under the Clean Water Act, Cover

Letter (Part 1), June 2, 2014, submitted by Riki Ott, PhD, Ultimate Civics,

and the Citizens’ Coalition to Ban Toxic Dispersants

3. Supplement to Petition for Rulemaking Under the Clean Water Act,

Proposed Policy Revisions (Part 2), June 2, 2014, submitted by Riki Ott,

PhD, Ultimate Civics, and the Citizens’ Coalition to Ban Toxic Dispersants

Top: Mac McKenzie found these shrimp mixed in with others at

a local market in New Orleans in April 2012. Instead of acting to

protect consumers, FDA lowered its cancer risk standard by allowing

three and four times more toxic PAHs in Gulf shrimp and crabs, respectively, than allowed in West

Coast seafood. Bottom: The high rate of dolphin deaths and strandings, such as these found along the

Mississippi coast in summer 2010, occurred in areas that received heavy and prolonged oiling from the

BP DWH disaster. It was not uncommon to nd shrimp with no eyes and dolphin with no eyes or eye

sockets throughout the oil-impacted region. Recommendations: Update the denition of oil to reect

its toxic nature; Use only non-toxic products that do no more harm during oil spill response.

Boat captain “RB” staged off

Destin, Florida. On August 24,

2010, Capt. RB reported oily debris

in the anchor chain when he

weighed anchor 0.6 nautical miles

east of the Perdido Pass sea buoy.

He cleaned his boat deck without

protective gear. Capt. RB died

September 20, 2014, of cancer. Recommendations: Prohibit dispersants and other products that act

to sink oil; Require a worker safety program for spill contractors operated by a licensed professional

program as part of preauthorization plans that does not put the spiller in charge of worker health.

Left: Container of Enviro Super

Klean 97 and evidence of use

found in Bayou Caddy marsh in

Hancock County, Mississippi, on

August 23, 2010. This product

is not on the NCP Product

Schedule of eligible products

for use during oil spill response.

Recommendations: Use

Products on the Schedule for

their intended purpose; require

updated screening tests and

environmental monitoring tests

to determine if product worked

as intended for any product use

on any size spill.

Above: Corexit dispersants were used in coastal areas long after the well was capped on July 15, 2010,

contrary to Coast Guard statements that spraying had stopped and that dispersants were not used within

3 miles of the coast or water depths of less than 10 meters. Shirley and Don Tillman witnessed dispersant

spraying in coastal seas near Pass Christian, Mississippi, on August 10, 2010, according to their afdavit

led with Government Accountability Project. Shallow water boats used to spray dispersants, loaded

into the white totes on the boats, moored in a make-shift staging area near their home.

Above: Fisherman Chris Bryant documented a

Corexit 9500A staging area on August 21, 2010.

Deadly dispersants were staged in neighborhoods

with no public notication and no warnings of

health risks from exposure. Recommendations:

Make plans to protect worker health and public

health required in Area Contingency Plans along

with already required plans to protect wildlife;

Require daily public notication of product use,

location, and quantity.

In August 2010, Lori Bosarge and other residents

of Coden, Alabama, were told by ofcials that

the oil was gone and dispersants were no longer

being used. Bosarge drove to a nearby bayou to

investigate a new decontamination staging area.

When she left her car, she was exposed to Corexit

9527A, being used to spray down boats and

carried by the sea breeze. Within two hours of

exposure, her skin broke out in blisters, a severe

rash, and a chemical burn. She nearly died and

has been severely ill ever since.

Above: According to a July 2010 scientic consensus statement prepared by Dr. Susan Shaw with the

Marine Environmental Research Institute, “The properties that facilitate the movement of dispersants

through oil also make it easier for them to move through cell walls, skin barriers, and membranes that

protect vital organs, underlying layers of skin, the surfaces of eyes, mouths, and other structures.” Oil-

dispersant combined uoresce: Researcher Rip Kirby used black light to show that dispersant facilitated

movement of oil across a skin barrier into a body and deep beneath the sand surface.

Medical literature reviews identify characteristic symptoms of

oil exposure, including breathing problems, skin rashes and

lesions, blood disorders, central nervous system problems, and

hair loss, such as found in people along the Gulf Coast after the

BP Deepwater Horizon disaster and in Kalamazoo/Battle Creek,

Michigan, after the Enbridge tar sands spill in 2010. Dispersants

and other petrochemical-based solvents such as diluents used to

thin tar sands oil target the same organs of the body as the oil.

Children are especially vulnerable to oil and solvent exposure.

Recommendations: Use non-toxic products that do no more

harm during oil spill response; Require a program to protect and

educate the public about the health risks, early onset symptoms of

toxic poisoning, and how to seek medical assistance.

LouisianaLouisiana Battle Creek, MI

Alabama

Scientists found oil and oil-dispersant droplets aerosolized

daily and became part of the Gulf hydrologic cycle. Gulf

coast residents and media documented BP’s oily sheen on the

leading edges of their airplanes after ying over the Gulf, in

puddles on door stoops after rain, on hotel beach furniture,

and in outdoor swimming pools, shallow bayous, bays, and

coastal seas. Beach workers taped their boot tops to their pants’

legs to avoid contact with oil, while public advisories failed to

communicate the true nature of the health risk.

Oil and oily debris were disposed of in public landlls, especially in economically-disadvantaged

communities. Landowners adjacent to landlls reported oily substances seeping from the landll onto

private property. Analytical chemical testing in Mobile, Alabama linked the leeched substances to BP’s

oil spill, although the ndings have been contested.

Recommendations: Require better risk communication to the public and health care professionals as

part of contingency plans and preauthorization plans; For the purpose of the NCP, treat and dispose

of recovered oil and oil-contaminated material as hazardous wastes and do not dispose in public

landlls.

Top: Exxon Valdez oil spill workers used high-

pressure wash to dislodge oil from beaches and, in

the process, aerosolized toxic polycyclic aromatic

hydrocarbons (PAHs). Middle and left: Similarly,

when tar sands oil owed over the Ceresco Dam

and down the Kalamazoo River in Michigan, PAHs

were also aerosolized. Workers and people living

near Ceresco Dam reported respiratory problems,

headaches and other central nervous system

problems, and more. Contract workers were not

provided with respiratory protection and residents

were not warned of health risks. However,

government employees in Michigan were provided

with respirators.

Tar sands oil spilled from ExxonMobil’s ruptured

Pegasus pipeline in Mayower, Arkansas, owed

through neighborhoods, down streets, and into

storm drains. Exxon is purchasing property in the

entire Northwoods’ neighborhood where homes

have not been cleared for re-entry. Home furniture,

clothes, carpet, wood, books, photo albums, and

more, absorb and emit toxic PAHs.

Bakken crude oil and other oil produced by

hydrologic fracturing activities is extremely

volatile and concentrated in the Volatile Organic

Compounds (VOCs) known to cause health

problems in living organisms, including humans.

This type of oil also dissolves toxic components

to signicant levels readily in water. The January

2015 Bakken oil spill into the Yellowstone

River, impaired the water supply for the entire

community of Glendive, Montana (popn.5,000).

Cleanup stopped because there was no way to

deal with oil under ice. Shipments of crude-by-

rail are increasing exponentially in rail cars that

are known to be unsafe for this type of oil. Fiery

derailments and rail car explosions from 2013 in Lac Megantic and to, most recently, those near Mount

Carbon in West Virginia and near Galena in Illinois have collectively resulted in lives lost, homes and

businesses destroyed, and evacuations. Yet there is no worst-case scenario planning for such events,

especially in large urban areas. Recommendations: Require worst-case scenario planning for spills in

freshwater, including evacuation, housing, and alternative drinking water supplies; do not allow oil to

be transported without a viable oil spill contingency plan.

On May 26, 2010, seven shermen on in-situ burn teams for the BP Deepwater Horizon disaster were

taken by Medevac life-ights from their shing boats directly to West Jefferson Medical Center in

Jefferson Parish, Louisiana. Burning oil concentrates toxic PAHs; rst responders typically wear a full-

face positive-pressure self-contained breathing apparatus and protective suit for ghting oil res. BP

did not provide respirators to in-situ burn teams, according to an afdavit led by one of the shermen;

respirators were also not provided to near-shore or beach workers. According to one BP safety trainer,

the trainers were told to tell workers, if they wanted to use respirators, their jobs would be terminated.

Federal ofcials responsible for worker safety concluded the primary threat to workers was heat

stress. Five years later, many of the former workers are still sick, some to the point of being disabled.

Recommendation: Require a worker safety program responsive to evidence of harm, rather than

standards-based enforcement, as workers get sick below the levels thought to be safe.

SOVEREIGN COOPERATION:

THE MAKAH TRIBE’S OFFICE OF MARINE AFFAIRS

AND THE FUNDAMENTALS OF PARTNERING WITH UNCLE SAM

MICHAEL P. TIERNEY

HISTORICAL BACKGROUND

When Washington Territory was organized in 1853, President Franklin Pierce appointed

a controversial young political supporter named Isaac Stevens to serve as both the Governor of

the Territory and Superintendent of Indian Affairs. When he arrived, Stevens was anxious to

acquire federal title to as many Native American held lands as possible.

On the Territory’s

Olympic Peninsula, for example, Stevens set aside three separate areas on which to relocate each

of the Makah, Skokomish, and Quinault Tribes, whose collective territories encompassed

hundreds of thousands of acres. Stevens sought to use federal treaties as the vehicle for these

“legal” transactions.

On January 31, 1855, Governor Stevens and forty two “chiefs, headmen, and delegates”

from the Makah Tribe signed the seminal Treaty of Neah Bay.

In exchange for thirty thousand

dollars and the right to fish, whale, and seal on usual and accustomed grounds (“U and A”), the

Makah ceded more than 300,000 acres of timberland to the United States and further agreed “to

remove to and settle upon” the land reserved by the Governor.

Today, a century and a half later,

through legal ingenuity and sheer pluck, the Makah have seized upon the Treaty’s grant of the

perpetual right to harvest marine resources and made it an aspect of enduring importance to the

Tribe in charting its role in the modern world.

THE ISSUE AT HAND

Historically, native tribal governments have always been at the mercy of the federal

government in recognizing their collective rights and interests.

In recent years, however, the

federal government has sought to engage federally recognized tribes in government-to-

government consultation in order to ensure that their rights and interests are adequately

represented at the federal level. The federal government has attempted to solicit consultation

through the promulgation of a number of executive orders, policy statements, and agency

instructions.

Marshaling and making use of this authority, however, has proved very difficult for

federally recognized tribes. Such difficulty stems in large part from a lack of clearly delineated

History of Rights and U & A, http://www.pgst.nsn.us/tribal-government/natural-resources/history-of-

rights-and-u-and-a; see also Treaty of Neah Bay, U.S.-Makah, Jan. 31, 1855, 12 Stat. 939, available at

http://digital.library.okstate.edu/kappler/vol2/treaties/mak0682.htm.

History of Rights and U & A, supra note 1.

Treaty of Neah Bay, supra note 1.

Id. (This parcel is described fully within Article 2 of the Treaty).

See, e.g., Johnson v. M’Intosh, 21 U.S. 543 (1823); Worcester v. Georgia, 31 U.S. 515 (1832); Larry

Sager, Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations, 76 U.

DET. MERCY L. REV. 745, 759-67 (1999) (recognizing European and American expansion came the ands

of mass genocide and governmentally ordered diaspora).

For URL links to these sources of authority, see infra notes 20-23.

communication channels and organizational structures within the tribes. It further stems from a

pervasive ignorance of both federal law and, on the part of the federal government, tribal custom

and social perspective. The Alaskan Inter-Tribal Council (AI-TC), for example, the purported

advocate for 229 federally recognized tribes, has experienced great difficulty in engaging with

federal agencies for the reasons just mentioned. Regrettably, much of the hoped for collaboration

between the AI-TC and federal government has dissolved into mere vitriolic accusations of

federally ordained censorship and genocide.

In Washington State, however, in April 2013, the United States Coast Guard (USCG) and

Makah Tribal Council (MTC), the Makah Tribe’s governing body, signed a Memorandum of

Agreement to reaffirm and build upon the federal government’s fiduciary responsibility to the

Tribe and its maritime resources.

The enumerated goals of the Makah Tribe and USCG’s

partnership include the enhancement of government-to-government consultation, boosting the

leveraging of oil spill response resources within each party’s respective authorities, and the

improvement of collective all-hazards prevention and response

posture within the Tribe’s U and

A. According to Rear Admiral Keith A. Taylor of USCG District 13, this partnership could

potentially serve as “a model for cooperation between Coast Guard leaders and other sovereign

Tribal authorities.”

This research paper attempts to analyze both the process leading up to and, then, the

ultimate utility of this partnership between the Makah and USCG. It has the further goal of

providing a possible template for Alaska Native and other tribal governments arranging

cooperation with federal agencies regarding water pollution issues. This paper looks to the

recently signed Memorandum of Agreement in order to identify the federal authority that enables

this and other potential partnerships with federal agencies. It focuses in particular on the creation

of the Makah Tribe’s Office of Marine Affairs as the vehicle through which this authority is put

to work, where communication and coordination efforts are directed, and that which generally

leads to material federal recognition of tribal sovereignty.

RESEARCH & ANALYSIS

To begin, the establishment of a meaningful government-to-government consultation

policy is the first step in fostering a fruitful dialogue (and hopefully a resulting partnership)

between the federal government and a federally recognized tribe.

Specifically, this policy

encourages parties both to listen to and speak with one another. It also forces each to think

carefully about what one wants to convey precisely to the other side. For example, a guiding

principle of the Makah Tribe’s consultation policy has been the acknowledgement of inherent

For an overview of the history and modern interpretation of the Federal Trust Doctrine, see generally

James Van Ness, Esq., The Federal Trust Doctrine—Realizing Chief Justice Marshall’s Vision, U.S. D

EP’T

INTERIOR, http://www.doi.gov/pmb/cadr/programs/native/gtgworkshop/The-Federal-Trust-Doctrine.cfm

(last visited November 23, 2013).

“All-hazards prevention and response” is the idea that instead of being able to respond to only certain

hazards, a party is in a position to address anything a situation may throw at it.

CG, Makah Tribe Sign Memorandum of Agreement, MILITARY.COM, http://www.military.com/daily-

news/2013/04/13/cg-makah-tribe-sign-memorandum-of-agreement.html (last visited November 23, 2013).

See Chad Bowechop, Interagency Interaction: Makah Tribal Council’s Office of Marine Affairs, 52,

http://www.uscg.mil/proceedings/spring2010/articles/

51_Bowechop_MakahTribalCouncilOfficeOfficeOfMarineAffairs.pdf.

tribal sovereign powers over internal matters and the right to self-determination concerning the

protection of tribal trust resources.

Once each side understands where the other is coming from,

the dialogue generated as a result of this policy allows, potentially, the parties to recognize

mutually shared interests and any commonly held principles. Hopefully, this dialogue further

leads to the formation of a useful partnership in which these mutually shared interests and

principles are collaboratively advanced.

The Makah have suggested that an ideal partnership encompasses a shared understanding

of the federal government’s fiduciary responsibility to a tribe’s resources and also to the tribe’s

further desire to preserve historical, cultural, subsistent, and economic ties to them.

This

understanding, then, makes room for growth, perhaps in how a tribe can organize to more

meaningfully contribute to federal and state actions that affect tribal interest. The Makah, for

example, did this through the creation of the Office of Marine Affairs and now actively assist the

USCG in the protection of their ancestral fishing and whaling grounds. (More on that later.)

In the end, it is only through these partnerships that tribes like the Makah and others are

able to effectively voice to federal authorities what is important to them, thereby ensuring that

these interests will receive at least federal attention and then hopefully federal enforcement. It is

therefore very advisable for a tribal government to do everything it can to form these

partnerships, even if, as with AI-TC, the formation process initially proves difficult and

uncomfortable.

An example of what’s being talked about: the Strait of Juan de Fuca is among the busiest

bodies of water in the United States with hundreds of commercial vessels like oil tankers passing

through each year. On average, there is at least one loaded tanker entering the Strait every day.

The Makah Tribe’s U and A lies at the junction of the Strait and the Pacific Ocean. As such, the

risk of an oil spill impacting the Makah’s treaty protected waters is very real. In a letter

dated

February 1, 2012, the MTC, through the Office of Marine Affairs, petitioned both the

Washington State Department of Ecology and USCG District 13 to “engage in joint government-

to-government consultation” to “ensure tribal treaty interests are adequately represented in

federal and state oil pollution regulatory efforts.” In short, the MTC wanted to be a part of any

federal or state decision that would impact the treaty protected area. The letter reminded federal

and state authorities that the “MTC has invested considerable time and effort over the years

contributing to federal and state oil pollution initiatives[, but] need[s] to ensure that [their]

sovereign status as an Indian Tribal Government is properly acknowledged and included in these

actions that impact our treaty interest.” Through this appeal and after years of back and forth

consultation, the MTC has worked with state and federal agents to develop a comprehensive spill

response plan, integrating federal, tribal, and state efforts that “reflects… respective sovereign

interests…without violating the regulatory independence of the respective agencies.” Most

importantly, during this process, the MTC remained “open to…suggestions” regarding the

development of this emergency response plan.

Id. at 51-2.

See id.

Tanker Exclusion Zone Clarification, CHAMBER OF SHIPPING,

http://www.cosbc.ca/index.php?option=com_content&view=article&id=475%3Atanker-exclusion-zone-

clarification&catid=47%3Abc-ports&Itemid=86 (last visited November, 27, 2013).

The letter is available at: http://www.ecy.wa.gov/programs/spills/rules/MTC-CG%20D13-

WDOE%20Consultation%202-12.pdf.

Another example:

in Washington state, the shellfish industry accounts for more than

$270 million in direct sales. Over the years, however, the average upper-ocean pH has decreased

by about 0.1 units, from about 8.2 to 8.1. This drop in pH corresponds to an increase in acidity of

about 30% and is tied in part to increasing levels of carbon dioxide in the atmosphere reacting

with seawater. That increase in acidity is damaging to shellfish, coral reefs, and other marine

animals. Much of the state’s shellfishing takes place on the Makah Tribe’s U and A and provides

jobs to many tribal members. It is therefore of great interest to the tribe to protect this economic

resource. Fast forward to the state’s decision to investigate solutions in the increase in acidity

and you will find that the MTC, after following the same petitioning and consultation process

described above, occupies a permanent seat on the Governor’s Blue Ribbon Panel. There, they

provide research staffing, scientific observation, and other valuable insight to develop potential

solutions to this potentially devastating problem.

As suggested above, the partnership between the Makah Tribe and USCG could

potentially serve as a model for cooperation between Coast Guard leaders and other sovereign

Tribal authorities. It is important then to recognize how the MTC went about engaging federal

agencies because the legal tactics the Council ultimately employed could arguably be just as

effective for other tribes looking to replicate the same results. This is true regardless of whether

or not a tribe possesses treaty rights. Significantly, a treaty is not needed to begin this overall

process. This will be discussed more below.

For the Makah, the 1855 Treaty of Neah Bay has served as an important document in

developing the relationship the Tribe currently shares with the United States.

This lies in how

the MTC has interpreted the Treaty’s original grant of a perpetual right to harvest marine

resources from the U and A. The MTC has argued that this grant creates a unique federal trust

responsibility over the Tribe’s traditional fishing and whaling grounds. It is because of this trust

responsibility, the Makah say, that the federal government must engage with the Tribe and work

with them when any agency action will affect this precious natural resource. As a result, and as

described above, in recent years, the MTC has begun to actively solicit federal agencies to

engage in government-to-government consultation in order to ensure that tribal interests are

adequately represented at federal and state levels.

These solicited agencies include the United

States Coast Guard, the Environmental Protection Agency (EPA), National Oceanic and

Atmospheric Administration, U.S. Navy and, on the state level, the Washington State

Department of Ecology.

As indicated, a treaty is not necessary for a federally recognized tribe to achieve

essentially the same thing as the Makah Tribe. This is because the federal government already

Acidic Ocean Hits Pacific Northwest, Eric Niiler, http://cen.acs.org/articles/91/i12/Acidic-Ocean-Hits-

Pacific-Northwest.html (last visited November 27, 2013).

See id.; see also Memorandum of Agreement Between United States Coast Guards and The Makah

Indian Tribe Regarding Interoperability and Cooperation, USCG-Makah, Apr. 12, 2013, available at

http://www.psp.wa.gov/downloads/OILSPILL/oilspill%20update%207-7-13/Signed%20USCG-

MTC%20MOA.pdf.

Bowechop, supra note 10, at 51; Telephone Interview with Eric Bullock, Commander, USCG District

Thirteen (Oct. 2, 2013).

Makah Tribal Council Office of Marine Affairs Presentation,

http://www.env.gov.bc.ca/eemp/symposium/pdf/psp_makah.pdf [hereinafter OMA P

RESENTATION].

owes, at least in theory, a fiduciary duty to federally recognized tribes under the Federal Trust

Doctrine. An agency instruction

issued by the Department of Defense provides that:

Under the federal trust doctrine, the United States–and individual agencies of the

federal government–owe a fiduciary duty to Indian tribes…Where agency actions

may affect Indian lands or off-reservation treaty rights, the trust duty includes a

substantive duty to protect these lands and treaty rights “to the fullest extent

possible.”

Essentially, the MTC cites the 1855 Treaty as an affirmation of, if not in addition to, an already

existing fiduciary duty owed by the federal government. The same principles and legal devices

which brought federal agencies to the Makah’s table can arguably be utilized by another

federally recognized tribe to achieve essentially the same thing.

OK, SO HOW IS THIS DONE…EXACTLY?

Whether created through treaty rights or by the federal government, the fiduciary duty

that the federal government owes to a federally recognized tribe entails a mandate to protect

tribal resources “to the fullest extent possible.” This duty, as it has for the Makah, allows tribes

to appeal to federal agencies to engage in government-to-government consultation and ensure

that this duty is carried out.

More to the point, there is already ample explicit federal authority directing federal

agencies to consult with federally recognized tribes. These sources of federal authority, as

reflected in the Makah and USCG’s Memorandum of Agreement, include, Executive Order

13175,

the Department of Homeland Security Tribal Consultation Policy,

the American

Indian and Alaska Native Policy and Department of Defense Instruction Number 4710.02: DoD

Interactions with Federally-Recognized Tribes,

and, more specifically, for the purposes of this

paper at least, Section 706 of the U.S. Coast Guard Authorization Act of 2010.

Federal agencies, however, will not engage with just anyone; they will only enter into

government-to-government consultation with officially designated tribal representatives. This is

not, as some claim, because of some nefarious intention or as an act of overt censorship, but to

make sure that, as with any legal designation, that the person who claims to speak on behalf of a

larger organization is actually the one who has been officially designated to do so. Given how

much wrong has been done to native peoples at the hands of the federal government, it should

Department of Defense, the American Indian and Alaska Native Policy and Department of Defense

Instruction Number 4710.02: DoD Interactions with Federally-Recognized Tribes; see infra note 19 for a

URL to access this document.

The Executive Order is available at: http://www.gpo.gov/fdsys/pkg/WCPD-2000-11-13/pdf/WCPD-2000-

11-13-Pg2806-2.pdf.

The Consultation Policy is available at:

https://www.dhs.gov/sites/default/files/publications/DHS%20Tribal%20Consulation%20Policy%20Final%2

0PDF.pdf.

The Instruction is available at: http://www.denix.osd.mil/na/upload/DoD-AI-AN-Policy-Booklet.pdf.

The Authorization Act is available at: http://www.gpo.gov/fdsys/pkg/PLAW-111publ281/pdf/PLAW-

111publ281.pdf.

come as a surprise to no one that when the federal government wants to do right by native

peoples and work with them, it wants to be speaking to the correct person when it does so.

Thus the first step is designating one person, or perhaps several, if a tribe so chooses,

who can legally speak on behalf of the tribe. An official Power of Attorney form exists on the

Coast Guard website for just this purpose. The same would not be legally dissimilar for use with

other federal agencies. After designation, a tribe would then solicit the relevant agency, as the

Makah have in the examples above, to engage in government-to-government consultation.

But after designation and consultation, how would a federally recognized tribe achieve

what the Makah have (“actively assist the USCG in the protection of their ancestral fishing and

whaling grounds”), and is this really possible without a treaty? As discussed, the MTC makes

use of the 1855 Treaty of Neah Bay as a reinforcement of the above cited authority rather than a

foundational requirement of it.

Proof of this can be found in the fact that the enabling authority

of the April 2013 Memorandum of Agreement does not include the 1855 Treaty, but refers to it

only in the Preamble as providing a “foundation of the Trust responsibility.”

And as noted, this

Trust responsibility already exists under the Federal Trust Doctrine. Really, the enabling

authority actually cited in the Memorandum lays out the true legal capacity for the Makah’s

relationship with the USCG, and in the following language.

Executive Order 13175 mandates, “in order to establish regular and meaningful

consultation and collaboration with tribal officials in the development of Federal policies that

have tribal implications, to strengthen the United States government-to-government relationships

with Indian tribes, and to reduce the imposition of unfunded mandates,” federal agencies must

“respect Indian tribal self-government and sovereignty...and strive to meet the responsibilities

that arise from the unique legal relationship between the Federal Government and Indian tribal

governments.” Moreover, when it comes to “formulat[ing] and implement[ing] policies that have

tribal implications, [these] agencies shall...encourage Indian tribes to develop their own policies

to achieve program objectives;...where possible, defer to Indian tribes to establish

standards;...and in determining whether to establish Federal standards, consult with tribal

officials as to the need for Federal standards and any alternatives that would limit the scope of

Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.”

The Department of Homeland Security Tribal Consultation Policy states that the “United

States Government has a unique legal and political relationship with American Indian and

This is not just legal theory. Currently, the USCG and EPA, on behalf of the Alaska Regional Response

Team (ARRT), are leading a consultation effort on updates to the 1989 Oil Dispersant Guidelines. Utilizing

this official designation process, as of this writing, the ARRT has invited over 75 tribes to formal

consultation at five hub meetings in King Salmon, Anchorage, Kodiak, Valdez, and Dutch Harbor.

Locations selected are “hub” locations with each area Subarea Response Plan affected by the proposed

revision to the guidelines. Meetings include morning consultation meetings with tribal governments,

followed by afternoon public/open participation meetings to discuss the proposed plan. An additional

government-to-ANCSA corporation meeting is scheduled for Anchorage on December 6th, 2013 as well

as a tribal government “make-up” session in Anchorage on December 5th, 2013. Over 80 ANCSA

corporations were invited to consult in addition to the tribal governments. The above is referenced to show

the good faith efforts and collaborative opportunities available for tribes and the federal government to

work together on mutually shared interests.

See Bowechop, supra note 10, at 51.

See Memorandum of Agreement Between United States Coast Guards and The Makah Indian Tribe

Regarding Interoperability and Cooperation, supra note 16.

Alaska Native Tribal Governments as set forth in the Constitution of the United States.” The

Policy goes on to state that the “United States recognizes the right of Federally-recognized

Indian Tribes to self-government [and to] exercise inherent sovereign powers over their members

and territories.” The Policy concludes by laying the groundwork for effective consultation with

tribal governments, noting in relevant part, that consultation “will be flexible in recognition of

the uniqueness of each Indian Tribe and the wide range of Federal actions that may warrant” it.

In peacetime, the Coast Guard operates under the Department of Homeland Security.

line with the new initiatives captioned in the DHS Policy, Section 706 of the U.S. Coast Guard

Authorization Act of 2010 authorizes the Coast Guard to “enter into memoranda of agreement

and associated protocols with Indian tribal governments in order to establish cooperative

arrangements for oil pollution prevention, preparedness, and response.” Section 706 (c) and

provides:

development of the tribal consultation and coordination policy to provide Indian tribes grant and

contract assistance. Such memoranda of agreement and associated

protocols wi

th Indian tribal

governments may include [specific examples of types of agreements.]

Thus, this would be the primary organizing authority a federally recognized tribe would use

should it choose to officially partner with the USCG and other federal agencies. Moreover, as

indicated by the language, such partnerships are to be flexible given the uniqueness and

particular circumstances of each tribe.

But while theoretically any federally recognized tribe can make use of the above cited

authority and formally partner with a federal agency, one may wonder how the Makah Tribe was

appointed to the Region 10 Response Team and to the Northwest Area Committee as a voting

member. After all, these events ensure that the Tribe has even more of a direct say in decisions

that affect its resources. Again, this was a result of demonstrating to the federal government the

capacity and willingness to work together and providing it with a centralized place in which to

channel all consultation and communication efforts (hint: ‘an official designation’).

The Makah achieved this through the creation of the Tribe’s Office of Marine Affairs

(“OMA”), an act that greatly enhanced the Tribe’s credibility in the eyes of the federal

government because it physically demonstrated its the organizational capacity and willingness to

collaborate with the federal government and commit time and money to learning how best to

complement federally orchestrated actions which affect tribal resources.

Perhaps unfortunately, this process can best be related through story. Several years ago,

the EPA provided funding to the MTC in recognition of its history with oil spills, the volume of

vessel traffic in the treaty area, the sensitivity of the marine environment, and the desire to

protect its cultural, subsistence, and economic connection to the U and A.

With that funding,

the MTC created the OMA with the two goals of safeguarding treaty resources and advancing

tribal interests.

From the beginning, the MTC made it a goal that in all interactions with other

governments that the OMA was to apply the best scientific and cultural information in the

development of oil spill prevention, preparedness, response and restoration policies.

See Missions, USCG, http://www.uscg.mil/top/missions/ (last visited October 4, 2013).

See Bowechop, supra note 10, at 51.

OMA PRESENTATION, supra note 18.

Id.

In order to demonstrate this commitment to meaningful cooperation and the building of

government-to-government partnerships, the MTC, through the OMA, participated in the 2007

oil pollution summit with Washington State Governor Christine Gregoire and USCG District 13

Rear Admiral Richard Houck. The resulting Memorandum of Agreement on oil pollution

prevention and response between the USCG and the State of Washington identified mutual areas

of authorities and interests shared between the federal and state government, in effect

strengthening a working relationship to advance oil spill prevention, preparedness and response

activities.

From this, the MTC and other Northwest Treaty tribes were able to learn how to

improve interaction with the federal and state governments.

By breaking down how the two

parties of the MOA communicated within the document, effectively in an almost “intra-

governmental parlance,” the MTC was able to appropriate this language and better convey its

desire to formalize with the Coast Guard its intent to acquire the necessary training, equipment,

and support that would enable the MTC to obtain a basic ordering agreement status as an “all

hazards responder”

and lay the foundation for a similar Memorandum of Agreement.

At the time this desire was conveyed, the MTC knew that a Memorandum of Agreement

could further serve as a clarifying document addressing the government-to-government

relationship with the 13th Coast Guard District until a formal coordination and consultation

policy with Indian tribal governments was established.

It could be argued that the existence of

the OMA made the signing of the Memorandum of Agreement more likely.

Fast forward to the actual signing and one will see that the Memorandum calls for both

parties to meet twice per year to update, validate and prioritize a consolidated work list that

frames specific cooperative efforts; agree to enhance situational awareness through improved

communications and coordination to include establishing communication protocols, and provide

technical assistance; to work to promote robust derelict vessel, fishing vessel safety and

waterways analysis programs; and to work to identify challenges and safety requirements that

Makah vessels face when responding to pollution incidents.

As if to cap all of this off, Chad Bowechop, Manager of the OMA, said that the first step

in beginning this process of establishing partnerships with federal agencies is the participation in

meaningful consultation. The second part is implementation of the results of that consultation.

For the Makah, progress was incremental. For three years, the MTC, through the OMA, regularly

met with the USCG on proposed rule making, slowly building up the administrative record. After

the demonstration of a committed effort to working within the agency’s system, the MTC saw

real results and is currently enjoying significant international recognition, having been asked by a

number of international organizations to serve in a consulting capacity on oil spill response

efforts and to develop response and assessment models.

The same, in theory, is possible for any federally recognized tribe, but in order to get

there, the process described above must be followed. Any federally recognized tribe may engage

in government-to-government consultation, but if a tribe wants to achieve what the Makah have,

See Memorandum of Agreement on Pollution Prevention and Response Between the Commander,

Thirteenth Coast Guard District and the State of Washington, USCG-WA, Jun. 26, 2007.

See Bowechop, supra note 10, at 52.

See supra note 8.

See Bowechop, supra note 10, at 52 (N.B. This was before the Makah had signed the April 2013

Memorandum of Agreement with the USCG.)

Id.

such a result may require the development of an organization like the OMA. It seems that federal

authorities, once they see that a tribe has the capacity and resources to meaningfully assist them,

they will allow and provide training for that tribe to do so. That comes after consultation, though.

The best course of action, as the Makah have demonstrated, seems to be for a tribe to try to

assimilate itself into the system, rather than try to beat it.

Approximate word count including non-citational footnotes: 3950

Chapter 1 – Purpose and Need Makah Whale Hunt EIS

May 2008

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June 2, 2014

BY CERTIFIED MAIL

Ginny McCarthy, Administrator

U.S. Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue NW

Washington, DC 20460

SUPPLEMENT TO

PETITION FOR RULEMAKING

Under the Clean Water Act, 33 U.S.C. § 1321(d)(2)(G) and

the Administrative Procedures Act Title 5. Sec. 553(e)

TO AMEND NATIONAL CONTINGENCY PLAN (NCP) PRODUCT SCHEDULE

and Other Subparts Relating to Product Use

Dear Administrator McCarthy,

On November 12, 2012, a coalition of concerned citizens filed a petition for rulemaking

to amend the National Oil and Hazardous Substances Pollution Contingency Plan

(NCP), particularly but not exclusively the Subpart J Product Schedule. The EPA replied

on January 3, 2013, confirming receipt with assurances that EPA was considering a

proposed rulemaking to Subpart J and would welcome public comment on the proposed

rule during the public comment period.

In its response letter EPA also stated that “the Agency has already used information

and lessons learned from the BP Deepwater Horizon oil spill to make recommendations

for Area Committees and Regional Response Teams to revise Area Contingency Plans

and Regional Contingency Plans, respectively, until the Subpart J regulations are

amended.”

However, EPA has not even addressed internal concerns about inadequacies in the

NCP, raised by the EPA OIG in August 2011, despite reporting that the concerns would

be closed by early 2013, and that the proposed rulemaking would appear in the Federal

Yet is now 2014, and none of the issues of concern,

raised by the EPA OIG, have actually been closed, including several we addressed in

our petition. Further, EPA has given no confirmation of when it might open the public

comment period.

While we agree with EPA that lessons learned from the BP DWH disaster do

necessitate revisions to the NCP, we find it disrespectful of EPA to make

recommendations to the RRTs, while not inviting the public to formally comment and

share lessons that we have learned. In our original petition, like the EPA OIG, we

EPA Office of Inspector General, 2011, Revisions Needed to National Contingency Plan Based on the

[BP] Deepwater Horizon Oil Spill, Report No. 11-P-0534, August 25, 2011. See also, EPA Office of

Solid Waste and Emergency Response, letters to the EPA OIG, dated January 12 and February 7,

2012.

Supplement 2 of 37

focused on lessons learned from the BP DWH disaster, a major spill of conventional oil,

and our foremost concern was the unprecedented consequences to health from

widespread application of chemical dispersants during the disaster response. Many

citizens, organizations, and Alaska Tribes, including some members of our coalition,

have filed or endorsed resolutions, petitions and lawsuits, calling for a ban in the use of

chemical dispersants, because of concerns about harm to human health and the

environment.

However, workers and residents were also sickened from exposure during major fresh

water discharges of nonconventional oil, in particular, blended tar sands oil and

extremely volatile shale oils. These more recent spills have demonstrated a need for a

systemic revision of the NCP––which hasn’t been revised for twenty years. This

overhaul is urgent as crude oil by rail shipments terminating in the U.S. in 2010 have

increased by 5,600 percent over the five-year average from 2005 through 2009, and this

increase is largely due to unconventional oils.

The NCP was largely designed for

conventional crude oil spills at sea, not tars sands oil that sinks or extremely volatile

(frack) oil that explodes when spilled. This means that shippers are transporting oil

without viable contingency plans in violation of the law––and in defiance of common

sense.

In sum, EPA’s proposed rulemaking on the NCP, including Subpart J and related

subparts concerning product use, is long overdue. We find it necessary to supplement

the requests in our original petition, based on new evidence and scientific information

and the U.S. Dept. of Transportation’s recent emergency regulations for handling crude

oil by rail (discussed below). We have undertaken a comprehensive rewrite of Subparts

A, B, C, D, and J as these all relate to use of dispersants and other chemical agents.

We have noted where revisions are needed in other subparts and in the appendices, in

particular C, but have not rewritten these sections at this time. Our supplement includes

an overview and justification comments, and working draft revision language for the

purpose of inviting discussion about our concerns.

Submitted by,

Riki Ott, PhD

The Citizens’ Coalition to Ban Toxic Dispersants

Energy Democracy Program

Earth Island Institute

Berkeley, CA

www.dispersantban.org

joined by:

Walter B. Parker

former Chair of the Alaska Oil Spill Commission

Anchorage, AK

American Association of Railroads, 2013, Moving Crude Oil by Rail, a report, December 2013.

https://www.aar.org/keyissues/Documents/Background-Papers/Crude-oil-by-rail.pdf

Supplement 3 of 37

and, in addition, supported by:

Sam Gross, Board Member

California Student Sustainability Coalition

Gershon Cohen, PhD

Campaign to Safeguard America’s Waters

Cindy Zipf, Executive Director

Clean Ocean Action

John Knox and Dave Phillips, Co-directors

Earth Island Institute

Berkeley, CA

Dr. Lora Chamberlain

Frack Free Illinois

Chicago, IL

Dede Shelton, Director of Operations

Hands across the Sand

Vicci Hamlin

Michigan/Indiana Coalition Against Tar Sands–MI CATS

Chesterton, IN

Michael Stocker, Director

Ocean Conservation Research

Julia Olson, Executive Director

Our Children's Trust

Eugene, OR

Tom "Smitty" Smith

Public Citizen

Austin, Texas

Karen Hadden

Sustainable Energy and Economic Development (SEED) Coalition

Austin, Texas

Jason Page

Q4 Radio

Chicago, IL

Tabitha Tripp, spokesperson

Shawnee Sentinels

Illinois

Supplement 4 of 37

Debra Michaud

Tar Sands Free Midwest

Chicago, IL

Richard Charter, Senior Fellow

Coastal Coordination Program

The Ocean Foundation

Carl Safina, PhD

The Safina Center, formerly Blue Ocean Institute

Stony Brook University

Stony Brook, NY

Supplement 5 of 37

Justification for Supplement & Proposed Revisions

Supplement Overview

Synopsis of Proposed Revisions

Issues & Justification for Proposed Revisions

I. Subpart A––Introduction

A. Updating definitions relating to containment and removal of oil

1. Sinking agents

2. Other chemical agents

B. Updating definitions relating to oil and hazardous substances

1. Hazardous by nature

2. Calling a spade, a spade

II. Subpart B––Responsibility and Organization for Response

A. Contributing factors: Examining the evidence

1. Unlearned lessons from the Exxon Valdez: Sick workers

2. History repeats: Sick workers and sick general public

3. Conflicts of interest

4. Complacency

5. Addressing regional and area concerns

B. Proposed revisions

1. Adding permanent co-chairs

2. Adding Citizens’ Advisory Councils and Indian Tribes

3. Adding training for local residents and individuals

III. Subpart C––Planning and Preparedness

A. Integrating changes into planning structure

B. Creating Citizens’ Advisory Councils

C. Expanding the function of the ACPs

D. Eliminating conflicts of interest

IV. Subpart D––Operational Response and Phases for Oil Removal

A. Integrating changes into response structure

B. Integrating Citizens’ Advisory Councils into ACPs

C. Expanding the function of the ACPs

D. Eliminating conflicts of interest

V. Subpart E––Hazardous Substance Response

VI. Subpart G––Trustees for Natural Resources

VII. Subpart J––Use of Chemical Agents and Other Products

A. Adding threshold criteria for product use

B. Consultation under the Endangered Species Act (ESA)

C. General prohibitions

D. General data requirements for all products

E. Specific data requirements for all products

F. Removal products from Schedule

Supplement 6 of 37

Supplement Overview

The federal government has a fiduciary duty to protect public health, public trust

resources that support health and wellbeing of present and future generations, and

public access to our collective public assets. In essence, this means that federal, state,

and local governments are trustees, charged with managing trust assets on behalf of

the citizens who are trust beneficiaries. It also means that the government, all levels and

all branches, is responsible for creating, implementing, and enforcing laws and policies

to protect trust assets by holding polluters who despoil trust assets accountable to the

laws and policies.

This is especially relevant during responses to discharges or releases of oil and

hazardous substances because the despoiler––the spiller––is duty-bound to its

shareholders to minimize its liability, which often comes at the expense of protecting

human safety and health and the environment. The fiduciary duties of government to

protect public assets during spill response conflict with the fiduciary duties of the spiller

to protect its stakeholders. Therefore, it is critical that government trustees recognize

this inherent conflict of public versus private interests and establish, implement, and

enforce laws and policies that make protecting public health and welfare and the

environment in the best financial interests of the spiller.

This starts by passing strong laws and updating them based on science and lessons

learned during spills to keep the laws relevant and useful. Unfortunately, the pollution

laws have not been kept current. The most egregious example involves the use of

dispersants.

The first large-scale use of dispersants occurred after the tanker Torrey Canyon

grounded off the coast of England in 1967 and spilled over 36 million gallons of oil. Less

than 12 hours after the Torrey Canyon grounded, the Royal Navy sprayed a dispersant

produced by British Petroleum, BP1002, onto the oil slick.

The resulting damage to the

environment sparked a public aversion to use of dispersants that remains to this day.

Two years later, a Union Oil drilling platform blew out, spewing up to 42 million gallons

of oil off the coast of Santa Barbara. The Coast Guard used chemical dispersants on

the oil near shore. The general lack of preparedness and failed disaster response

triggered sustained public outrage, leading to massive legal and regulatory reforms

during the 1970s. This included a major overhaul of the 1948 Federal Water Pollution

Control Act in 1972, which established a national response system for oil spills. 33USC

311(j). Congress incorporated dispersants and dispersant use into these amendments.

33 USC 311(d)(2)(F) and (G).

As pointed out in our original petition, the science began to catch up and, by the 1980s,

it was evident that dispersants use in shallow seas could cause more harm than good.

Wood, Mary Christina, 2014, Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge

University Press, 2014), p. 207.

Queale, Abbey J., 2012, Responding to the response: Reforming the legal framework for dispersant use

in oil spill response efforts in the wake of Deepwater Horizon, Hastings West-Northwest Journal of

Environmental Law, Policy, Winter 2012.

Supplement 7 of 37

The Exxon Valdez oil spill in 1989 was the first wide-scale experimental use of

dispersants in the United States. Once again, national preparedness and response for

oil disasters was found lacking. The resulting law passed in the wake of the nation’s

newest, largest maritime oil disaster, the Oil Pollution Act of 1990, once again ignored

warnings from the public and science about harmful effects from dispersants. The new

law created protocol mandating an expedited decision-making process for dispersants

alone over other chemical agents and assigning this task to newly created Area

Committees. 33 USC 311(d)(2)(F) and (G) and (j)(4), respectively. The Area

Committees were made part of new national planning and response organizational and

structural framework, implemented through the NCP. In essence, dispersant use

became institutionalized as part of, and integrated into, this new national response

system. Meanwhile, the science continued to build, showing evidence of harm to wildlife

and people from dispersant use, as discussed in our original petition and in this

supplement.

The pollution laws also require the President to protect public health by first making a

determination that there may be an imminent and substantial threat to the public health

or welfare and then by directing all federal, state, tribal, and private actions to remove

the discharge or to mitigate or prevent the threat of the discharge. 33 USC 311(e)(1)

and (c)(2), respectively. The implementing regulation, the NCP, essentially restates this

as priorities during oil spill response to: first, protect safety of human life; second,

stabilize the situation to prevent the event from worsening; and, third, minimizing

adverse impact to the environment by using containment and removal tactics. 40 CFR

§300.317(a) to (c).

It is logical to assume, therefore, that any operations undertaken during spill response

must support safety, i.e., protection of human life and health; stabilizing the situation by

preventing more harm and, by implication, doing no more harm; and by using methods

that contain and remove oil. However, we find this not to be the case.

For example, dispersants do not remove oil from the environment, they act to sink oil

and spread it throughout the water column. There is no consideration for the possibility

that dispersant use, or use of any other chemical agents for that matter, may do more

harm than good; there is no protocol for stopping use of products that behave differently

in the field than in the lab and cause unanticipated harm to people and wildlife. There

are no protocols or criteria for making a determination when a situation poses an

imminent or substantial threat to public health or welfare; there are no protocols or

criteria for protecting public health and welfare in situations that are determined to be or

pose a substantial threat. There is an organizational structure that gives far too much

authority to the “responsible party”––the spiller––and far too little to the citizenry whose

effective engagement is critical to the proper functioning of industry, government, and

civil society. There is a decision-making process that allows any product to be used

anytime, even ones not on the Product Schedule, which negates the entire pre-spill

planning process and ignores science. There are technical data requirements for testing

products that are so pathetically outdated that the data give little indication of the

product’s true toxicity in or to the environment.

Supplement 8 of 37

To add to these critical issues, oil spill response since inception has focused on large

maritime spills of conventional oil and use of chemical agents, in particular, dispersants.

The 1970s standards are grossly inadequate to protect public health and welfare and

the environment from spills of unconventional, ultra-hazardous oils such as tar sands

oil, blended tar sands oil (dilbit), and extremely volatile oil produced by hydraulic

fracturing or similar technologies. The rapid expansion of oil and gas activities and

increased frequency of spills, especially of ultra-hazardous oil, have created large areas

with at-risk populations, not just in remote areas, but also populated urban areas

… yet

the NCP is silent on how to “minimize the threat to public health and welfare and the

environment” from these unconventional oils.

We have proposed revisions to the NCP to address these issues. However, our

revisions only partially fix the problems we have raised because some of these

problems are rooted in the pollution laws––the Clean Water Act and the Oil Pollution

Act. In particular, the statutory requirement for dispersants locks in an outdated and

harmful response tool that is demonstrably contrary to the overall goal of the national

contingency plan; i.e., to contain and remove oil from the environment. This requires a

Congressional remedy. It’s as if we are playing a game with broken rules, but they are

rules nonetheless, so we have patched and mended, ripped and replaced, and woven

new bits, all within the boundaries of the broken rules. A synopsis of our proposed

revisions precedes a more detailed justification for each subpart.

Synopsis of Proposed Revisions

Subpart A: Definitions have been updated, revised, or added: to accommodate recent

science findings that oil is more toxic than thought in the 1970s; to recognize that

chemical agents can cause unintended harm, that use does not guarantee intended (or

any) results, and that the ability of a substance to sink oil is not limited to its specific

gravity; to allow for establishing criteria and protocol for protecting worker and public

health and safety; and to allow for effective citizen oversight.

Subpart B: The organizational structure was changed to accommodate, during planning

and response activities, meaningful protection of human safety and health, public

welfare, and the environment from a (now recognized as) hazardous oil discharge and

from additional hazards posed by use of chemical agents by: adding two permanent co-

chairs from OSHA and HHS to the NRT and RRT; assigning the OSHA and HHS PCCs

authority and responsibilities, and providing protocol and criteria, to effectively and

efficiently conduct their assigned duties to protect human safety and health; adding lead

agency representatives from the 13 RRTs (chair, vice-chair, and permanent co-chairs)

to the NRT to increase the likelihood that the NCP will accommodate regional needs to

make the NCP more effective and efficient; adding a Citizens’ Advisory Council for

every Area Committee and adding representatives from the CACs and Indian Tribes to

RRTs to increase the likelihood that RCPs will accommodate area/ local needs to make

the RCPs more effective and efficient; expanding duties throughout the structure to not

Lowy, Joan, 2014, Pipeline oversight called inadequate, Associated Press, 5/9/14.

http://bigstory.ap.org/article/federal-watchdog-pipeline-safety-oversight-shoddy

Supplement 9 of 37

only implement plans, but to monitor, evaluate, report, and revise the NCP, RCPs, and

ACPs on regular basis; and establishing oil spill removal organizations at appropriate

locations along coasts and inland along conventional and ultra-hazardous crude-

carrying pipeline and rail car corridors with trained personnel in sufficient numbers to

immediately remove a worst case discharge.

Subpart C: Planning and preparedness was revised to provide meaningful protection of

human safety and health, public welfare, and the environment by: integrating the above

changes into the planning structure; creating the Citizens’ Advisory Council, providing it

structure, and assigning it authority and duties; expanding the function of the ACPs; and

eliminating situations that create conflicts of interest between the government and the

responsible party.

Subpart D: Operational response was revised to provide meaningful protection of

human safety and health, public welfare, and the environment by: integrating the above

changes into the response structure; integrating authority and duties of the Citizens’

Advisory Councils into the ACPs and RRTs; expanding the function of the ACPs; and

eliminating situations that create conflicts of interest between the government and the

responsible party.

Subpart J: Use of chemical agents and other products was revised to provide

meaningful protection of human safety and health, public welfare, and the environment

by: adding threshold criteria for product use; integrating the above changes into the

decision-making structure and creating a consensus process for decision-making;

eliminating the preference for use of dispersants; requiring an emergency stop use plan

(as well as a preauthorization plan) for product use; prohibiting certain elements or

conditions in chemical agents; requiring data and testing for all chemical agents and

products; creating new tests to determine if products are sinking agents and requiring

use of updated toxicity tests; adding a requirement to retest products when testing

protocols are updated or product is reformulated; and adding a process and criteria for

removing products from the Product Schedule.

In addition, changes were made to Subpart E to address intentional releases of

potentially hazardous chemical agents during oil spill response and to Subpart G to

integrate Indian Tribes as Trustees for Natural Resources.

Supplement 10 of 37

Issues & Justification for Proposed Revisions

I. Subpart A––Introduction

A. Updating definitions relating to containment and removal of oil

1. Sinking agents

Sinking agents are expressly prohibited by Subpart J regulations, 40 CFR 300.910(e):

“Sinking agents shall not be authorized for application to oil discharges.” The reason for

banning sinking agents is obvious: sinking oil makes mechanical containment and

recovery impossible. Sinking agents do not reduce the amount of oil entering the

environment but instead act to move the oil into the water column.

For forty years, EPA has regarded sinking agents as substances that can physically

sink the pollutant below the water’s surface. Sinking agents are defined as “those

additives applied to oil discharges to sink floating pollutants below the water surface.”

40 CFR 300.5. If the specific gravity is greater that 1.0, the product becomes a “sinking

agent” and cannot be used on or near water during oil spills. The substances envisaged

were clay, sand and cement, and the NCP regulations have prohibited their use in oil

spill response.

The NCP also defines dispersants as “those chemical agents that emulsify, disperse, or

solubilize oil into the water column or promote the surface spreading of oil slicks to

facilitate dispersal of the oil into the water column.” 40 CFR 300.5. In other words,

dispersants act on oil to sink it in some form or other, thereby impeding mechanical

containment and recovery. However, since dispersants have a specific gravity near or

slightly less than 1.0, the product has not been considered a sinking agent.

This is pure semantics and defies common sense. Studies conducted after the BP DWH

disaster on fate of dispersant and oil combined found that surface application of

dispersants resulted in subsurface plumes of emulsified oil that have persisted,

impeding containment and removal of oil from both water and land and prolonging

recovery.

Dispersant and oil combined is also more toxic than oil alone, which conflicts with the stated NCP

priorities to do no more harm to people or the envirionment, as was addressed in our original petition

and below in Subpart B comments.

Kujawinski, EB, et al., 2011, Fate of Dispersants Associated with the [BP] Deepwater Horizon Oil Spill,

Environmental Science & Technology 45(4):1298-1306.

Paris, CB, et al., 2012, Evolution of the Macondo well blowout: Simulating the effects of the circulation

and synthetic dispersants on the subsea oil transport, Environmental Science & Technology

46(24):13293-13302.

Sammarco, Paul, et al., 2013, Distribution and concentrations of petroleum hydrocarbons associated with

the BP/Deepwater Horizon Oil Spill, Gulf of Mexico, Mar. Poll. Bull. 73: 129–143.

Wade, Terry, et al., 2011, Analyses of water samples from the deepwater horizon oil spill: Documentation

of the subsurface plume, in American Geophysical Union, Monitoring and Modeling the Deepwater

Horizon Oil Spill: A Record-Breaking Enterprise, Geophysical Monograph Series, 195: 77–82.

Zuijdgeest A, and M Huettel, 2012, Dispersants as Used in Response to the MC252-Spill Lead to Higher

Mobility of Polycyclic Aromatic Hydrocarbons in Oil-Contaminated Gulf of Mexico Sand. PLoS ONE

7(11): e50549. doi:10.1371/journal.pone.0050549.

Supplement 11 of 37

THEREFORE, WE RECOMMEND an updated definition of sinking agents and a new product

testing requirement (in Subpart J) to determine if the product directly or indirectly sinks

oil.

2. Other chemical agents

There are two issues of concern. First, it is not uncommon for dispersants to be labeled

by the manufacturer as surface-washing agents, bioremediation agents, or other

chemical agents. According to EPA, the agency “is concerned that these categories are

often interchanged, which leads to misuse of the products. Surface-washing agents

(SWAs) have been used on open-water spills, while dispersants have been used to

wash oil from sandy beaches, driving the oil deeper into the substrate. Both misuses

may cause further harm to the environment than the oil alone.”

For example, during the Exxon Valdez oil spill response, Inipol EAP22, an experimental

product listed as a “bioremediation” agent, was sprayed directly on beaches. Inipol

contained a carrier solvent, 2-butoxyethanol, also found in the dispersant Corexit

9527A. Inipol behaved more like a dispersant than a bioremediation agent: It stripped oil

off rocks, sickened workers who reported symptoms characteristic of overexposure to 2-

butoxyethanol, killed wildlife, despite “scary balloons” posted on beaches to, allegedly,

warn away both people and animals.

Alaska Natives from Chenega Bay reported

seeing thick windrows of dead juvenile salmon washed up on one Inipol-treated beach

with the first flood tide after treatment.

After two seasons of field work, three

independent reviewers “found no significant difference between treated and untreated

areas” and concluded, “given the degradation rates of untreated versus treated being

essentially the same, the recommended best course of action is not to add fertilizer”

(emphasis in original).

Inipol is still listed as a bioremediation agent on the NCP

Product Schedule, although Exxon no longer manufactures it.

Second, in oil spill response, there seems to be a mindset among the lead agencies and

the Coast Guard, in particular, that oil is “the enemy” and that any “countermeasure”

(chemical agent) may be used to mitigate the threat from the oil. There is little or no

Nichols,W. J. 2001. The U.S.EPA: National oil and hazardous substances pollution contingency plan,

Subpart J Product Schedule (40 CFR 300.900). Inernatl. Oil Spill Conf. 2001:1479–1483, on p. 1481.

City of Cordova, Alaska, 1989, ADEC report: Notice of violation issued to Exxon for improper application

of Inipol, Cordova Fact Sheet, September 6, 1989: 2[34].

McDowell, T, 1989, Seldovia town meeting with spill agency representatives, August 24. VHS. ARLIS,

Anchorage, AK. videos.

Ott, Riki, 2004, Sound Truth and Corporate Myths, Dragonfly Sisters Press: Cordova, AK, pp. 97–111,

118–121.

Spence, H, 1989, Fertilizer blamed for illnesses, Homer News, August 24.

Spence, H, 1989, Seldovians charge workers’ health neglected, Homer News, August 31.

Pete Kompkoff, Native Village of Chenega, pers. comm., August 1989, in Ott, Sound Truth, p. 99.

Capuzzo, J., J. Farrington, and S. Kellogg, 1990, Summary of reviewers’ comments, in Prince, R.C.,

J.R. Clark, and J.E. Lindstrom 1990, 1990 Bioremediation Monitoring Program, Water Research

Center, Fairbanks, AK:University of Alaska.

Capuzzo, J., J. Farrington, and S. Kellogg, 1990, Reviewers’ executive summary, in Prince, Clark, and

Lindstrom, 1990.

Supplement 12 of 37

consideration that many of the products currently listed on the NCP Product Schedule

are quite harmful to people and wildlife, and no consideration the oil and product

combined may be even more toxic than the oil itself, as discussed in our original petition

and elsewhere in this supplement.

THEREFORE, WE RECOMMEND updating definitions of all chemical agents to clarify that

product use “is likely to” effect a certain state, rather than a stated certainty; that

products “may,” not will, be used; and that a qualifier that product use will not cause

harm to public health or welfare or the environment.

B. Updating definitions relating to oil and hazardous substances

1. Hazardous by nature

This section addresses two issues of concern. First, so-called “conventional” oil is more

toxic than thought in the 1970s as we addressed in our original petition.

It is now well

established in the scientific literature that exposure to, ingestion or inhalation by, or

assimilation into humans (or other organisms) of oil in any kind or form may reasonably

be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic

mutation, endocrine disruption or other physiological malfunction (including reproductive

problems), or physical deformations in humans or their children (or organisms or their

offspring)––to borrow language from the definition of “pollutants or contaminants” in 40

CFR 300.5. In other words, conventional oil is now recognized as causing the same

health issues as hazardous substances because crude oil is a hazardous substance

and has finally been recognized as such.

Secondly, so-called “nonconventional” oil is even more hazardous than conventional oil

by nature. Tar sands oil is concentrated in heavy metals and the polycyclic aromatic

hydrocarbons or PAHs.

Extremely volatile oil or “light tight oil” produced by hydraulic

fracturing is concentrated in lighter, more volatile aromatic hydrocarbons. The human

and environmental health impacts of PAHs and VOCs (such as BETX) were discussed

in our original petition. These “ultra-hazardous” oils are made even more hazardous by

the addition of diluents or drilling fluids, which are human health hazards in and of

themselves,

similar in nature to the dispersants that were discussed at length in our

original petition.

Not surprisingly, more recent studies on these ultra-hazardous oils have confirmed that

exposure has caused increased cancer rates, prenatal developmental problems, and a

Peterson, Charles, et al., “Long-term Ecosystem Responses to the Exxon Valdez Oil Spill,” Science

2003; 302:2082–2086.

Bailey, Diane and Danielle Droitsch, 2014, Tar sands crude oil: Health effects of a dirty and destructive

fuel, NRDC. http://www.nrdc.org/energy/tar-sands-health-effects.asp

Tenenbaum, David, 2009, Oil Sands Development: A Health Risk Worth Taking? Environ Health

Perspect. Apr 2009; 117(4): A150–A156. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2679626/

Schlettler, Ted, Gina Solomon, Maria Valenti, and Annette Huddle, 1999, Generations at Risk:

Reproductive Health and the Environment (MIT Press).

Song, Lisa, 2012, A Dilbit Primer: How it is different from conventional oil, Inside Climate News, June 26.

http://insideclimatenews.org/news/20120626/dilbit-primer-diluted-bitumen-conventional-oil-tar-sands-

Alberta-Kalamazoo-Keystone-XL-Enbridge

Supplement 13 of 37

range of cardiovascular, dermal, gastrointestinal, neurological, ocular, renal, and

respiratory impacts.

Further the increased accident rate of crude rail car derailments

and fiery explosions near populated areas has led to fines for violations of safety codes,

and calls from first responders and others for stronger safety measures.

In late

February, the US DOT issued an emergency order requiring shippers to test oil product

from the Bakken region for proper hazard classification, while also requiring transport of

crude oil in the most sturdy state-of-art tanker cars. In May, DOT issued another

emergency order requiring railroads to disclose the expected routes across counties

and states, volume of oil being shipped, and a responsible party.

Bailey, Diane and Danielle Droitsch, 2014, Tar sands crude oil: Health effects of a dirty and destructive

fuel, NRDC. http://www.nrdc.org/energy/tar-sands-health-effects.asp

Federman, Adam, 2014, Hazardous Cargo: Shipping Highly Flammable Bakken Crude Oil by Rail, Earth

Island Journal, summer 2014.

http://www.earthisland.org/journal/index.php/eij/article/warning_highly_flammable/

Huffling, Katie, 2014, “Susceptibility During Pregnancy: What You Need to Know,” Alliance of Nurses for

Healthy Environments, webinar hosted by the Center for Environmental Health on May 5, 2014.

http://www.ceh.org/news-events/events/content/fracking-maternal-health-what-it-means-for-your-

family/

Kwiatkowski, Carol, 2014, “Natural Gas Development, Public Health, and Protecting the Most Vulnerable

Populations,” The Endocrine Disruption Exchange, webinar hosted by the Center for Environmental

Health on April 21, 2014. http://www.ceh.org/news-events/events/content/fracking-maternal-health-

what-it-means-for-your-family/The Endocrine Disruptor Exchange maintains a publicly available

database, papers, lectures, and other material on the potential health effects of chemicals used

during natural gas operations, including fracking. http://endocrinedisruption.org/chemicals-in-natural-

gas-operations/chemicals-and-health

Michigan Dept. of Community Health, 2010, Acute Health Effects of the Enbridge Oil Spill, rev. Dec. 20,

2010.

Paulson, Jerome, 2014, “Unconventional Natural Gas Extraction and Special Vulnerabilities for Children,”

webinar hosted by the Center for Environmental Health on April 21, 2014. http://www.ceh.org/news-

events/events/content/fracking-maternal-health-what-it-means-for-your-family/

Stanbury, Martha, et al., 2010, Acute Health Effects of the Enbridge Oil Spill, Michigan Dept. of

Community Health, rev. Dec. 20, 2010.

Brown, Matthew and Joan Lowy, AP, 2014, Oil train wrecks spur railroad safety measures, SFGate,

2/22/14.

Brown, Matthew and James MacPhearson, AP, 2014, Warning issued about oil shipped from ND, Mont.,

Yahoo News, 1/3/14. http://news.yahoo.com/warning-issued-oil-shipped-nd-mont-185942105.html

Gold, Russell, and Laura Stevens, 2014, US issues emergency testing order to crude oil shippers, The

Wall Street Journal, Feb. 26.

http://online.wsj.com/news/articles/SB10001424052702303880604579405412862500426

Karnowski, Steve, AP, 2014, Lawmakers: Minn. needs stronger oil spill response, Statesman.com,

2/12/14. http://www.statesman.com/ap/ap/environment/minn-bill-to-protect-against-oil-

derailments/ndLpX/

MacPherson, James, N.D. oil leaks go unreported, Associated Press, Dec. 27, 2013

McNish, Jacquie and Grant Robertson, 2013, The deadly secret behind the Lac Megantic inferno, The

Globe and Mail, 12/3/13. http://www.theglobeandmail.com/report-on-business/industry-news/energy-

and-resources/the-hazardous-history-of-the-oil-that-levelled-lac-megantic/article15733700/

HazMat staff, 2014, US issues emergency order for crude-by-rail: Emergency orders protect the public,

environment from harm created by imminent hazard, HazMat Management, Daily News, Feb. 27.

http://www.hazmatmag.com/news/us-issues-emergency-order-for-crude-by-rail/1002936904/?&er=NA

Lowy, Joan, AP, 2014, Government issues emergency order on oil trains, Associated Press, May 8, 2014.

http://www.houstonchronicle.com/business/energy/article/Government-issues-emergency-order-on-

crude-oil-5461208.php

Supplement 14 of 37

These findings, and the fact that the NCP was designed for spills of conventional crude

oil that foul surface waters and shores rather than oils that sink or explode,

call into

question the forty-plus year distinction between oil and hazardous substances in the

NCP.

2. Calling a spade, a spade

At a minimum, we find that ultra-hazardous oils are, and should be designated as,

hazardous substances, pollutants, or contaminants––at least for the purposes of the

NCP, for the following reasons. First, it’s hazardous! If the stuff requires extra

precautions and safety procedures during normal handling and transportation to

minimize harm to first responders and the public, then logic dictates that ultra-

hazardous oils would also require extra precautions and safety procedures during spill

response.

Second, none of products currently on the Schedule apply to ultra-hazardous oil.

Testing protocols in appendix C to this part require use of standard reference oils––

conventional oils––to test products, not ultra-hazardous oils. The NCP itself was

designed for conventional oil that floats with a priority for mechanical containment and

removal: This entire premise is a nonstarter for oil that is likely to sink or explode. This

means ultra-hazardous oil is currently being shipped without a viable contingency plan,

which is not legal. It also means that the rapid expansion of ultra-hazardous oil and gas

activities and increased frequency of spills have created large areas of our country with

at-risk populations, not just in remote areas, but also populated urban areas. This is a

recipe for disaster.

Finally, based on the 2010 Enbridge tar sands oil and diluent (dilbit) release in Battle

Creek, Michigan, the largest non-maritime release of oil and ultra-hazardous oil in the

U.S., the response resembled more of a hazardous substance response than an oil spill

response,

minus adequate PPE for workers, adequate protection for public health, an

informed public, a community relations plan, and community participation in decision-

making about remedial activities. Billed as the most expensive “oil” spill cleanup on

record, costs of $1,185 per gallon were also on par with a release of hazardous

substances rather than an oil discharge.

Given this situation, we find there are present and reasonable-beyond-doubt risks of

substantial threats to public health or welfare from releases of ultra-hazardous oils. This

is a situation where lack of full scientific certainty should not be a basis for postponing

effective actions to reduce the threat and to protect human lives and public health.

Peterson, Charles, et al., 2012, A tale of two spills: Novel science and policy implications of an

emerging new oil spill model, BioScience 62: 461–469.

Nikiforuk, Andrew, 2013, Michigan’s mysterious tar-like rocks, The Tyee, Dec. 16, 2013.

http://thetyee.ca/News/2013/12/16/Michigan-Tar-Rocks/

Nikiforuk, Andrew, 2013, Mystery of Michigan tar rocks solved?, The Tyee, Dec. 17, 2013.

http://thetyee.ca/News/2013/12/17/Michigan-Tar-Rocks/

Linnitt, Carol, 2013, Official price of the Enbridge Kalamazoo spill, a whooping $1,039,000,000,

DesmogCanada, August 26, 2014. http://desmog.ca/2013/08/26/official-price-enbridge-kalamazoo-

spill-whopping-1-039-000-000

Supplement 15 of 37

THEREFORE, WE RECOMMEND that the EPA immediately adopts a precautionary

approach regarding ultra-hazardous oils and promulgates emergency regulations

designating ultra-hazardous oils as a hazardous substance for the purposes of the

NCP. A cost-benefit analysis should not be required for this emergency designation.

These protections may be relaxed only if further scientific findings emerge that provide

sound evidence that no harm will result to the populations most at-risk from the threat

posed by ultra-hazardous oils.

FURTHER, WE RECOMMEND that:

a) the definition of oil includes language to accommodate the post-Exxon Valdez

science paradigm shift that PAHs cause long-term harm to humans and wildlife;

b) a new definition is included for ultra-hazardous oils;

c) the definition of hazardous substance includes ultra-hazardous oils and other

natural gas substances and derivatives that are currently exempted;

d) the definition of pollutant or contaminant includes ultra-hazardous oils and other

natural gas substances that are currently exempted, as well as chemical agents

intentionally released during oil spill response that contain known or suspected

toxic or hazardous ingredients;

e) the definition of discharge does not include ultra-hazardous oils (which will be

considered as “releases” rather than discharges); and

f) the definition of remove or removal is made identical for oil and for hazardous

substances.

C. Updating definitions relating to public health and welfare

Definitions have been added or revised to allow for creation of protocols and a plan to

protect worker safety and health and public health and welfare, including threshold

criteria and requirements to implement, monitor, and evaluate the plans, as discussed in

the following subparts.

D. Updating definitions relating to organizational structure and responsibilities

Definitions have been added or revised to better protect worker safety and health and

public health and welfare, as discussed in the following subparts.

Subpart B––Responsibility and Organization for Response

In this section, we address one issue of concern, namely that workers and the general

public get sick during oil spill response, and we discuss the multiple factors that we

believe contribute to this.

Illnesses from exposure to oil and chemicals associated with oil activities occur despite

an elaborate legal and regulatory framework in the U.S. supposedly designed to protect

worker safety and health, public health and welfare, and the environment. As

Supplement 16 of 37

documented in our original petition, exposure to spills of conventional oil harms health

of workers and residents alike, revealing that a much broader segment of the population

is at-risk during oil discharges than response workers alone. However, similar harm has

since been found, following exposure to spills of nonconventional oil such as blended

tar sands oil and extremely volatile shale oils, as discussed earlier.

Thus, we find it necessary to examine this framework in light of past major spills in the

U.S. to determine why it has consistently failed to protect people––and to supplement

our original petition with additional or revised recommendations for the NCP rulemaking

to support the stated number one priority during spill response: protecting human lives

and human health.

A. Contributing factors: Examining the evidence

1. Unlearned Lessons from the Exxon Valdez Oil Spill: Sick workers

The Exxon Valdez was the first oil spill response conducted under the OSH Act’s

Hazardous Waste Operations and Emergency Response (HAZWOPER) standard,

even though oil spill waste had previously been designated as a hazardous

substance.

Within weeks, the Alaska Dept. of Labor reduced the required 40-hour

HAZWOPER training to 4-hours at Exxon’s request. Although OSHA’s research arm,

NIOSH, deemed Exxon’s 4-hour training adequate, critics found numerous flaws with

the training and overall Worker Safety Program. For example, workers were not

prescreened for medical issues that may have been exacerbated or triggered by

exposure to oil; they were not properly trained to recognize symptoms of chemical

exposure; they were not properly equipped with respirators and Personal Protective

Equipment (PPE) as required under the HAZWOPER standards; and when workers

started to get sick, there were no feedback loops to determine the cause of the problem

and address it, much less to provide follow up monitoring and health care for sick

workers.

In addition, there were long-standing problems with OSHA standards and inspections.

First, OSHA still relies on inappropriate surrogates such as mineral oil and particulate

dust to establish safety standards for oil mist and PAHs, respectively, when these

surrogates do not even come close to accurately representing the health hazards of the

original chemicals. Second, OSHA did not reduce the standard Personal Exposure

Levels (PELs) to accommodate the extended work hours during oil spill response and

the fact that many workers were housed on vessels near or in contaminated sites. Third,

OSHA, 1989. Hazardous Waste Operations and Emergency Response Standard, 29 CFR 1910.120

(Federal Register 54 [42]:9294-9336). U.S. Department of Labor, March 6, 1989.

40 CFR 300.5 definition of hazardous substance.

Stuart, T. 1989, Alaska Dept. of Labor letter to Dr. Knut Ringen, Director, Laborers’ National Health and

Safety Fund, April 21, in U.S. Congress House, 1989a, 1061–1062.

Teitelbaum, Daniel T., MD, 1994. Deposition, October 12, in Stubblefield v. Exxon (1994) in Riki Ott,

Sound Truth and Corporate Myths, (Dragonfly Sisters Press, 2004).

VECO, Inc., 1989, VECO EVOS hazardous waste cleanup training video. VHS, Alaska Resource Library

and Information Services, Anchorage, AK.

Documentation for this paragraph is found in two main sources: the Teitelbaum deposition and Ott,

Sound Truth, especially chapters 1–3 and 10.

Supplement 17 of 37

regarding inspections: OSHA did not have anywhere near a sufficient number of

personal to monitor and evaluate Exxon’s Worker Safety Program for the scale of the

response; OSHA was prevented from inspecting on-the-water operations because of

competing jurisdiction with the U.S. Coast Guard; and OSHA never subpoenaed

Exxon’s medical records and air quality monitoring data because of budget issues.

Fourth, OSHA authorities did not recognize Inipol EAP 22 and Corexit 9580 as hazards

“likely to cause death or serious harm if appropriate monitoring and measuring is not

performed” until 1990, the year after the main response operations,

despite ample

warnings on the MSD Sheets.

Finally, OSHA’s authority for worker health and safety was (and is) limited by

geographic considerations. In particular during on-the-water response operations

involving vessels, the U.S. Coast Guard and OSHA are responsible for different

elements of worker health and safety under a complex and nuanced regulatory

framework that looses the primary focus–worker safety and health–in a maze of

competing jurisdictional requirements. But the bottom line is that the Coast Guard is the

wrong agency to be in charge of worker health and safety in a hazardous waste

response.

For example during the EVOS response, the U.S. Coast Guard, as the lead agency with

authority to protect worker health and safety during offshore oil spill response, appeared

to have focused on physical injuries rather than chemical illnesses,

which are now

known to be a consistent health hazard associated with oil spill response or exposure.

Four years after the EVOS in 1993, the Coast Guard federal on-scene coordinator

concluded that the matter of whether there were long-term or delayed ill effects from the

cleanup on worker health “is likely to remain unresolved for some time, and worker

health issues may ultimately be litigated, perhaps in significant numbers.”

In other

words, the Coast Guard OSC simply observed that there was likely to be a problem and

that the legal system would somehow resolve it.

Significant numbers of illnesses were reported to Exxon medical clinics during the 1989

EVOS response operations. Exxon’s own clinical data reveal 6,722 cases of respiratory

problems from a total workforce of about 15,000.

Exxon medical doctors diagnosed

NIOSH, 1991, Health Hazard Evaluation Report, prepared by R.W. Gorman, S. P. Berardinelli, and T.

R. Bender. U.S. DHHS, May. HETA, 89-200 & 89-273-2111, Exxon/Valdez Alaska Oil Spill.

U.S. Coast Guard, 1993, T/V EVOS: Federal On-Scene Coordinator Report, Washington, DC:USCG,

U.S. Department of Transportation, p. 403.

OSHA Instruction CPL 2-1.20 November 8, 1996 Directorate of Compliance Programs, Subject:

OSHA/U.S. Coast Guard Authority Over Vessels.

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=1526&p_table=DIRECTIVES

USCG EVOS report, p. 399, Table 17.1.

Barry Levy and William Nassetta, “The Adverse Health Effects of Oil Spills: A Review of the Literature

and a Framework for Medically Evaluating Exposed Individuals,” Int J Occup Environ Health 2011;

17:121–167.

USCG EVOS report, p. 404.

Exxon Company, USA, 1989. Clinical data on upper respiratory infections: URIs–Breakdowns. In Garry

Stubblefield and Melissa Stubblefield v. Exxon Shipping Company, Exxon Corporation,VECO, Inc.,

and Norcon, Inc. 3AN–91–6261 CV (HBS), AK Superior Court, Third Judicial District at Anchorage

(1994); in Ott, Sound Truth.

Supplement 18 of 37

the “Valdez crud” or upper respiratory infections despite lack of evidence of a virus. This

allowed Exxon to circumvent OSHA’s strict reporting requirements for “recordable

illnesses” during hazardous waste cleanups by using the exemption for colds and flu [29

CFR 1904(5)(b)(2)viii], despite the fact that initial symptoms for chemical illness mimic

cold and flu-like symptoms.

Exxon reported a near zero work-related illness rate to

Alaska health officials.

Thus, despite the Coast Guard OSC’s assumption, significant numbers of EVOS

workers did not litigate likely because most did not connect their lingering illnesses to

their occupational exposure. But they had been given no reason to believe their illness

was connected: their training had not forewarned them, they had been told repeatedly

that the oil was “as safe as pancake syrup,” and Exxon had circulated waivers

indemnifying the company from any work-related harm––and had paid workers to sign

it.

OSHA officials never subpoenaed Exxon’s health records. In a domino effect OSHA

investigators at the federal and state levels separately concluded, based on available

evidence––which they lacked, but which was not lacking––that there was no need for

long-term health monitoring. Further, the Alaska Worker Compensation Board

controverted (dismissed) cases of sick EVOS workers, partly because of lack of

evidence and partly because OSHA lacks proper diagnostic codes for chemical

illnesses.

Four years after the disaster, the incriminating records surfaced briefly in the

only successful toxic tort from this disaster, only to be sealed by court order for 30 years

(until 2024). Thirteen years later, a Yale study found a significant number of former

EVOS workers self-reported lingering symptoms characteristic of oil spill exposure.

one anonymous former worker said to a researcher, “I thought I had the Valdez Crud in

1989. I didn’t think I would have it for thirteen years.”

Med-Tox, 1989a. Air monitoring results for oil mist: VOCs master by task and VOCs master by date. In

Stubblefield v. Exxon (1994), in Ott, Sound Truth.

Med-Tox. 1989b. Results of air sampling for PAHs. In Stubblefield v. Exxon (1994), in Ott, Sound Truth.

Med-Tox, 1989c. Statistical summary of industrial hygiene monitoring. In Stubblefield v. Exxon (1994), in

Ott, Sound Truth.

Ott, Sound Truth, Appendix Table A.1. Exposure levels of some hazardous compounds present during

the 1989 EVOS cleanup compared to OSHA PEL and NIOSH REL, p. 450.

OSHA regulations include exemptions to reporting work-related injuries and illnesses: “Exclude from

record keeping those injuries/illnesses that do not provide information useful to the identification of

occupational injuries and illnesses and thus would skew natural injury/illness data” [29 CFR

1904.5(b)(2)]. The list includes: “Colds and flu will not be considered work-related” [29 CFR

1904.5(b)(2)(vii)].

Phillips, N. 1999. Still painful.10 years later, front-line spill workers link physical ailments to cleanup

work. Anchorage Daily News, 23 March.

Alaska Dept. of Labor, 1990, Prince William Sound oil spill, in Occupational Injury and Illness

Information–AK, 1989, 25–34, Juneau, AK: ADOL, in Ott, Sound Truth, p. 33.

ADOL, Alaska Workers’ Compensation Board,1992, Partial compromise and release regarding

recovery of overpayment of benefits, filed 2 October, in ADOL, AWCB 1992, in Ott, Sound Truth.

Ott, Sound Truth, pp. 127–135.

O’Neill, Annie, 2003, Self-reported exposures and health status among workers from the EVOS

cleanup. Master’s thesis M. P. H. Yale University, Department of Epidemiology and Public Health.

Supplement 19 of 37

Most of the former workers never connected their debilitating health problems with their

oil spill response work. No public policies were adjusted to better protect human safety

and health during oil spill response.

2. History repeats: Sick workers and sick general public

Learn to Recognize the Symptoms of Toxic Poisoning

Be prepared to seek medical assistance if you have any of the following symptoms:

difficulty breathing; irritation of the eyes, skin, throat, or respiratory tract; changes in skin

color; headache or blurred vision; dizziness, clumsiness or lack of coordination; cramps

or diarrhea.” ~ Air Force Emergency Management

During the twenty years after the Exxon Valdez oil spill, science advanced and found

that polycyclic aromatic hydrocarbons or PAHs were linked with respiratory problems,

central nervous system problems, skin and blood disorders, immune system

dysfunction, and chronic problems such as liver and kidney damage. Further, the field of

“environmental medicine” emerged as medical researchers began to understand the

symptoms and effects of environmental exposure to oil and synthetic chemicals, and

other toxins, on the human body and the individual’s physical, mental, and emotional

responses to the toxins. Medical researchers found that people exposed to low levels of

oil over a long duration of time could experience the same symptoms and illnesses of

people (workers) exposed to high concentrations over short periods of time. However,

Occupational and Environmental Medicine (OEM) remain a specialty field, outside the

knowledge of most general healthcare practitioners and the general public, although

references to toxic exposure in the environment are increasingly found in government

manuals, such as the quote above.

Thus, the public is largely unprepared to protect itself during large-scale oil and

chemical disasters. For example, unlike the Exxon Valdez oil spill, the BP DWH disaster

impacted a densely populated coast. In 2010, some six million people resided or visited

the counties and parishes immediately adjacent the coast in the area directly impacted

by the BP DHW disaster.

More recent studies continue to support the concerns

advanced in our original petition, namely, that a significant portion of this population was

at-risk of exposure to oil and dispersants in the environment, expressed symptoms

characteristic of this exposure, and remain at risk of long-term health problems

stemming from this exposure. Studies have reported that 40 percent or more of

residents and workers directly exposed to crude oil and dispersants in the environment

reported symptoms characteristic of oil exposure,

that children were especially

vulnerable, and that the combination of oil and dispersants is far more toxic to humans

than oil alone

Air Force Emergency Management, 2006, pocket guide for oil and hazardous substance disasters,

AFEM. Helpdesk@tyndall.af.mil

Based on 2010 census data and Mobile, Alabama, visitor information statistics.

Abramson, David, et al., 2013. “Children’s Health after the Oil Spill: A Four-State Study. Findings from

the Gulf Coast Population Impact (GCPI) Project.” National Center for Disaster Preparedness, NCDP

Briefing Report 2013_1. Columbia University Mailman School of Public Health, New York.

http://academiccommons.columbia.edu/item/ac:156715

Supplement 20 of 37

Human exposure to oil-solvent combinations is not limited to maritime oil disasters.

The oil industry mixes large volumes of oil-based solvents and other chemicals with oil,

as dispersants to break up oil slicks, as diluents to thin tar sands for transportation, and

as fracking fluids to extract oil from oil-bearing shale. These solvents share similar

chemicals, and the properties that facilitate their movement through oil also facilitate

their movement into the bodies of humans and organisms. Particles become more

soluble as well as airborne making exposed body barriers, like the skin and lungs, easily

penetrable and allowing a direct pathway into vital areas of the body. Not surprisingly,

people impacted by oil and gas activities such as the BP DWH disaster along the Gulf

coast (solvent-crude oil combined), dilbit spills in Michigan and Arkansas (solvent-tar

sands oil combined), and fracking activities and spills (solvent-shale oil combined), are

reporting symptoms characteristic of exposure to crude oil and/or oil-based solvents.

Bosch, X, Exposure to oil spill has detrimental effect on clean-up workers’ health. Lancet. 2003 Jan 11;

361(9352):147.

D’Andrea, Mark and Kesava Reddy, 2013. “Health consequences among subjects involved in Gulf oil spill

clean-up activities,” The American Journal of Medicine, Vol. 126(11):966-974.