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 2 ALERT & OTT 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.1 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 1 Wood, Mary Christina, 2014, Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge University Press, 2014), p. 207. Docket ID No. EPA–HQ–OPA–2006–0090 3 ALERT & OTT 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.”2 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.3 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 2 http://www.spillcontrol.org/isco-what-s-new/276-press-release-international-forum-on-group-v- non-buoyant-oils 3 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/ Docket ID No. EPA–HQ–OPA–2006–0090 4 ALERT & OTT 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.