On January 22, 2015, US EPA announced that it is proposing to amend the requirements governing the use of dispersants and other chemical and biological agents used in response to oil spills, which are contained in Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The proposed amendments come as a result of US EPA’s experience with the authorized use of dispersants in connection with the Deepwater Horizon oil spill in April 2010.

Subpart J concerns authorization of the use of products contained in the Schedule of Dispersants and other Chemicals to Treat Oil Spills (the Schedule) and specifies some of the conditions under which On-Scene Coordinators (OSCs) may authorize the use of dispersants. If approved in its current form, the proposal would significantly affect the testing, labeling and reporting requirements — as well as drastically reduce the amount of information that qualifies as confidential business information (CBI) — for manufacturers and users of chemical and biological agents. The Schedule is intended to aid Regional Response Teams and Area Committees as well as OSCs in determining whether to use a certain product in response to a given event. In order to list a product on the Schedule, Subpart J requires that product manufacturers submit a range of information about the product (which can be designated as CBI) to the US EPA. The listing of a product in the Schedule, however, does not mean that US EPA endorses the product for the use listed nor is the product recommended for use in response to a specific oil discharge. According to the US EPA, the use of chemical and biological agents in response to the Deepwater Horizon oil spill helped establish their importance as a response tool; but the agency believes that more information concerning toxicity, efficacy, proper use and human health impacts is necessary so that the planning and response community is better equipped with the proper information to authorize the use of such products.

The new rule would strengthen the role of the Schedule by including meaningful testing requirements and authorized use procedures. To this end, the proposal would, among other things, require OSC approval before using any chemical or biological agent contained in the Schedule, prevent the use of products that have exceeded their expiration date unless certain retesting requirements are satisfied, require the responsible party to conduct additional monitoring associated with the use of dispersants, and require that products submitted to US EPA include a Safety Data Sheet, sample product label, and recommended use procedures. The proposal would also establish new toxicity and efficacy testing requirements.

As for CBI, the law currently provides that all information contained in the product package submission to US EPA may be designated as CBI and protected from public disclosure. This typically means that the chemical identity, chemical abstract number, concentration level of each chemical component contained in the product, and technical product data qualifies as CBI. If approved in its current form, the proposal would provide CBI protection only for concentration levels of chemical components, microbiological cultures, enzymes, and nutrients. All other information contained in the product package submission would be made available to the public. US EPA considered but decided against maintaining the current CBI approach. US EPA also considered other options, including making the component identity and concentration information available to the public in the event of a major discharge and allow manufacturers to waive CBI claims only for certain chemical components for monitoring purposes after a major discharge. While US EPA did not propose these options, it is requesting comment on them.

Comments on the proposed rule can be submitted until April 22, 2015. Squire Patton Boggs will continue to monitor this rulemaking and provide updates during the rulemaking process.