Dispersant Regulations Are Long Overdue

by: Hannah Chang and Marianne Engelman Lado Photo by Gulf Restoration NetworkRecently, groups from the Gulf of Mexico, together with organizationsrepresenting Alaskans and people concerned about dispersants from across the country, sent a letter to Dana Tulis at the U.S. Environmental Protect Agency (EPA), Chair of the National Response Team, to raise continued concern about the potential use of dispersants in future oil spills. Nearly two years after the Deepwater Horizon disaster, the public is still waiting on the EPA to put in place sensible dispersant regulations that will help to ensure that the tragic chaos and uncertainty that characterized the Deepwater Horizon response is not repeated. During the course of that disaster, 1.84 million gallons of the dispersant Corexit were released into the Gulf of Mexico with little or no knowledge of Corexit’s toxicity and impacts on human health and the environment. The lack of information raised questions and increased anxiety about exposure to chemical dispersants and the mix of dispersant with oil.The occasion for the recent letter was a draft Guidance, circulated by the National Response Team, regarding the monitoring of future use of dispersants underwater. Of course, ensuring adequate monitoring is a step in the right direction. But the more basic question is whether subsea application of dispersants is an acceptable response technique at all, particularly in light of the scarcity of research on the toxicity and potential impacts of dispersants in subsea environments.Under the flawed dispersant regulations in effect during the Deepwater Horizon response – and which still are in effect – there is no toxicity standard or threshold that ensures that dispersants are safe for the humans that will be exposed to the dispersant, or for the animals and plant life that will be forced to live in and swim through waters laced with dispersant. The lack of a toxicity standard is not just a gaping hole in the regulatory system in its own right – it also reflects the inadequacy of toxicity testing to determine the impacts, including long-term and chronic impacts, of a dispersant on relevant species under relevant environmental conditions. Under the current regulatory framework, the manufacturer of a dispersant also is allowed to make its product available for use in a disaster but still keep secret the dispersant’s ingredients. This regulatory provision led to meaningless back-and-forth between BP and EPA during the Deepwater Horizon response when BP itself was unable to ascertain the ingredients of dispersants other than Corexit – information that was necessary in order to compare the potential toxicity of various dispersants and to identify a safer alternative to Corexit.EPA currently is working to revise the existing dispersant regulations in a way that hopefully will address the senselessness of the current framework. But these new regulations are long delayed. Without the toxicity testing, the safety standards, and the ingredient disclosure that should be required, regulators and responders continue to operate without the information necessary to make thoughtful decisions. Alaska Community Action on Toxics, Cook Inletkeeper, Florida Wildlife Federation, Gulf Restoration Network, Louisiana Environmental Action Network, Louisiana Shrimp Association, Sierra Club, and Waterkeeper Alliance requested revisions to the dispersant regulations and filed a notice of intent to sue the EPA in the fall of 2010. These groups have held off on bringing suit to give EPA time to revise the dispersant regulations and have been in consistent communication with EPA to monitor progress on the regulatory revision. Repeated delays and the absence of any proposed regulations – even now, as we near the second memorial of the Deepwater Horizon disaster and as the pace of offshore drilling ramps up – raise real concerns. Each day these regulations are not in place is another day EPA stands in violation of the Clean Water Act. Hannah Chang and Marianne Engelman Lado are attorneys with Earthjustice, a non-profit environmental law firm dedicated to protecting the natural environment.

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