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National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements rule (2015)

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The National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements is a significant rule issued by the Environmental Protection Agency (EPA), effective December 11, 2023, that amends the National Oil and Hazardous Substances Pollution Contingency Plan in regards to chemicals and substances used when responding to oil discharges into jurisdictional waters.[1]

HIGHLIGHTS
  • Name: National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements
  • Code of Federal Regulations: 40 CFR 100, 40 CFR 300
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) regulates chemical and biological agents used in response to oil spills in water. These standards set the framework for the On-Scene Coordinator (OSC) to establish criteria for how mitigants and dispersants can be used in specific waters.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:[1]

    “ The Environmental Protection Agency (EPA or the Agency) is amending the requirements in Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) that govern the use of dispersants, other chemicals and other spill mitigating substances when responding to oil discharges into jurisdictional waters of the United States. This action addresses the efficacy and toxicity of dispersants and other chemical and biological agents, as well as public, state, local, and federal officials' concerns regarding their use. Specifically, the Agency is amending the Subpart J regulatory requirements for the NCP Product Schedule in two distinct ways. First, the Agency is adding new listing criteria, revising the efficacy and toxicity testing protocols, and clarifying the evaluation criteria for removing products from the NCP Product Schedule. Second, the Agency is amending requirements for the authorities, notifications, and data reporting when using chemical or biological agents in response to oil discharges to Clean Water Act (CWA) section 311 jurisdictional waters and adjoining shorelines. These requirements are anticipated to encourage the development of safer and more effective spill mitigating products and better target the use of these products to reduce the risks of oil discharges and response technologies to human health and the environment. Further, the amendments are intended to ensure that On-Scene Coordinators (OSCs), Regional Response Teams (RRTs), and Area Committees (ACs) have sufficient information to support agent authorization of use decisions.[2] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “ This final action amends two distinct sets of requirements under Subpart J: (1) Those related to chemical and biological agent testing and listing, and (2) those related to authorization of use. Specifically, in this action, the Agency adds, amends, or removes certain regulatory definitions associated with Subpart J, and updates requirements for the authorization of agent use (including preauthorization plan development, approval, and review; case by case authorization of prohibited agents; storage; agent use; recovery; and reporting of use); testing of products (including efficacy and toxicity testing protocols); and listing on the NCP Product Schedule (including data and information requirements, processes for adding or removing a product to or from the NCP Product Schedule, and proprietary business information.) The discussion below explains each of the amendments. It also summarizes and provides a response to highlighted public comments received on the 2015 proposal. See the Response to Comment Document for Listing and Testing of Chemical and Biological Agents, and for the Response to Comment Document on the Authorization of Use of Chemical and Biological Agents in the rulemaking docket for a complete summary and response to public comments. Sections of the NCP not identified to be revised in the proposed rule or addressed in this final rule are outside the scope of this final action.


    Revisions to Subpart J were under consideration prior to the Deepwater Horizon oil spill. The subsequent Deepwater Horizon oil spill resulted in recommendations to update Subpart J from the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Report  [1] and the EPA Inspector General report titled Revisions Needed to the National Contingency Plan Based on Deepwater Horizon Oil Spill (Report #11–P–0534),[2] including that EPA review and update dispersant testing protocols for product listing. The Agency's final action addresses those recommendations.

    This final action reflects relevant science and research that supports the specific provisions and their intent. The Agency considered the over 81,000 comments received that offered a wide range of perspectives and scientific information. Those comments remain relevant to the rulemaking, which will modernize and enhance the Subpart J regulatory provisions.

    The Agency is updating the process for listing products on the NCP Product Schedule, including expanded testing and listing thresholds. In doing so, EPA identified the relevant science to establish a national screening process for products to be listed on the NCP Product Schedule. Specifically, in amending the NCP Product Schedule listing provisions, EPA considered relevant science related to efficacy and toxicity testing and has determined it supports both establishing new protocols and updating existing protocols under Subpart J for testing chemical and biological agent products for listing on the NCP Product Schedule. These product testing protocols, along with additional requirements for data and information, serve as the basis for a national level screening of chemical and biological agent products, and include procedures that commercial laboratories are already familiar with or can readily adopt. EPA is not aware of changes to the relevant science since the proposed rulemaking and is proceeding with taking final action on the proposal. Furthermore, the final action builds upon the existing NCP framework, providing expanded opportunities for decisionmakers to consider any advancements in science beyond efficacy and toxicity valuations as part of listing, planning and response activities.

    The Agency is also updating the provisions for authorization of use by building upon the existing framework, providing further opportunities to consider advancements in science as part of the planning and authorization of use processes for chemical and biological agents. This performance-based approach provides flexibility in gathering, and allowing for the consideration of, scientific information relevant to a given site or geographic location. This allows for better targeting chemical and biological agent use during a response and is consistent with the broader NCP framework.[2]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements rule states that OMB deemed this rule significant, but not economically significant:

    “ This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review.[2] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements," June 28, 2023
    2. ↑ 2.0 2.1 2.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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