Dispersant Scrutiny Mirrors Larger Debate Over U.S. Chemical Control Policy

• Date: 01 November 2010

40 ELR 11142 ENVIRONMENTAL LAW REPORTER 11-2010

Dispersant Scrutiny Mirrors

Larger Debate Over U.S.

Chemical Control Policy

by Charles L. Franklin

Charles L. Franklin is a counsel at the law rm of Akin Gump Strauss Hauer & Feld, LLP, and the incoming chair

of the American Bar Association’s Committee on Pesticides, Chemical Regulation, and Right-to-Know.

Dispersants have been a critical oil spill response tool

for decades, used in at least 66 documented spill

responses worldwide, and 25 spills in or near U.S.

waters.1 Oil dispersants can reduce the coastal impact from

a spill, hasten the post-spill recovery process for aected

waters and shores, a nd reduce the need to resort to other,

more damaging response methods. For most of their history,

dispersants have held a low prole in the public conscious-

ness. Dispersants remained technical footnotes to the spills

themselves—until the Deepwater Horizon disaster.

At times during the months-long response in the Gulf,

public and media scrutiny of dispersant use riva led the

attention given to the spreading oil. is scrutiny likely

resulted, in part, from the unprecedented size and scope of

the Deepwater Horizon release and the use of dispersants at

unprecedented depths and untested conditions. At a more

fundamental level, however, concerns regarding federal dis-

persant policy reect the tensions that have been raised w ith

federal chemical control policy as a whole.

e chemicals used in dispersants, like so many of the

chemicals used in commercial, industrial, and personal prod-

ucts, have become critical—even indispensible—to modern

society. Few members of society have the option, let a lone

the inclination, to go chemica l-free in t heir personal, work,

or school lives. At the sa me time, few members of society

have the resources to assess independently the risk of each

chemical product they use or encounter in daily life. Instead,

individuals rely upon their government systems to regulate

the import, manufacture, and use of chemicals throughout

the marketplace and economy, and to provide relevant infor-

mation about the risk s and benets. As condence in such

regulatory systems dissipates, it should come as no surprise

that concerned stakeholders call for more structure and cer-

tainty in the regulatory process.

1. Incident News, National Oceanic and Atmospheric Administration (NOAA),

O  R  R, http://www.incidentnews.gov/ (last

visited Sept. 14, 2010) (searching reported incidents in which dispersants were

evaluated and used).

is Article reviews the recent scrutiny of oil spill disper-

sants in the context of the larger and more long-standing

debate over whether and how to update the nation’s core

chemical control law and policies, as embodied in the Toxic

Substances Control Act (TSCA).2 e Article then identies

some of the likely policy issues reform advocates will have to

address to make progress on either issue.

I. Historical Use and Regulation of

Dispersants

Chemical dispersants break down spilled oil into smaller

drops that mix vertically and horizontally in the water col-

umn, allowing microscopic organisms to act to degrade oil

within the droplets and reduce the risk of adverse impacts

to coastal resources.

Despite an ignominious introduction to the world stage

during the response to the Torrey Canyon tanker spill o the

English Coast in 1967,3 early dispersant use showed enough

promise that the U.S. Congress included dispersant provisions

in the 1970 Amendments to the Clean Water Act (CWA).4 In

addition to requiring development of a national contingency

plan (NCP) to address the risk of f uture releases of oil and

other ha zardous substances, the new law directed the U.S.

Environmental Protection Agency (EPA) to work with states

to: (1)identify “dispersants and other chemicals” for use in

NCP response eorts; (2)identify the waters in which such

dispersants and chemicals may be used; a nd (3) determine

the quantities of such dispersant or chemical that can be used

2. 15 U.S.C. §§2601-2692, ELR S. TSCA §§2-412 (1976).

3. U.S. Dept. of Transportation, U.S. Environmental Protection Agency (EPA),

D. N. OSWER 89VALDZ, T E V O S: A R 

 P, (May 1989), app. D-23 [hereinafter E V  R]

(discussing the failed use of dispersants in the Torrey Canyon spill); N

R C, C  E  O S D-

, U O S D   S 6-7 (1989) (discussing Tor-

rey Canyon spill); Incident News, supra note 1 (identifying eight spills between

1967 and 1971 in which dispersants were evaluated and applied as part of the

spill response eort).

4. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607 (1970).

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