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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Hotline Report
Revisions Needed to
National Contingency Plan
Based on Deepwater Horizon
Oil Spill
Report No. 11-P-0534
August 25, 2011
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Report Contributors:
Patrick Gilbride
Erin Barnes-Weaver
Todd Goldman
Mary Anne Strasser
Stephanie Wake
Susan Charen
Abbreviations
BFT Baffled Flask Test
CWA Clean Water Act
EPA U.S. Environmental Protection Agency
FOSC Federal On-Scene Coordinator
NCP National Oil and Hazardous Substances Pollution Contingency Plan,
also known as the National Contingency Plan
NRT National Response Team
OEM Office of Emergency Management
OIG Office of Inspector General
OPA Oil Pollution Act
ORD Office of Research and Development
OSC On-Scene Coordinator
OSWER Office of Solid Waste and Emergency Response
RRT Regional Response Team
SFT Swirling Flask Test
USCG U.S. Coast Guard
Cover photo: An overhead view of the Deepwater Horizon oil spill. (U.S. Coast Guard photo)
Hotline
To report fraud, waste, or abuse, contact us through one of the following methods:
e-mail: OIG Hotline@epa.gov
phone: 1-888-546-8740
fax: 703-347-8330
online: http://www.epa.gov/oig/hotline.htm
write: EPA Inspector General Hotline
1200 Pennsylvania Avenue NW
Mailcode 8431P (Room N-4330)
Washington, DC 20460
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
11-P-0534
August 25, 2011
Why We Did This Review
The U.S. Environmental
Protection Agency (EPA),
Office of Inspector General
(OIG), received two Hotline
complaints on the use of
dispersants in response to the
Deepwater Horizon oil spill in
the Gulf of Mexico. We
reviewed the steps EPA took
to analyze the dispersant
Corexit for inclusion on the
National Contingency Plan
(NCP) Product Schedule. We
also determined EPA's role in
the decision to use Corexit in
the response. The OIG Office
of Counsel addressed a perjury
allegation in one complaint.
Background
The NCP establishes national
response capability and
coordination for oil spills. The
NCP Product Schedule lists
spill-mitigating chemicals that
responders can use in carrying
out the NCP, including
dispersants that emulsify,
disperse, or solubilize oil into
the water column.
For further information,
contact our Office of
Congressional, Public Affairs,
and Management at
(202)566-2391.
The full report is at:
www.epa.gov/oiq/reports/2011/
20110825-11-P-0534.pdf
Catalyst for Improving the Environment
Revisions Needed to National Contingency Plan
Based on Deepwater Horizon Oil Spill
What We Found
EPA and the manufacturer of Corexit completed required steps to include Corexit
products on the NCP Product Schedule. However, EPA has not updated the NCP
since 1994 to include the most appropriate efficacy testing protocol. Subpart J of
the NCP identifies requirements a manufacturer must meet to include a product on
the Product Schedule, including efficacy results using the Swirling Flask Test.
EPA has considered revising Subpart J to change efficacy testing procedures to the
more reproducible Baffled Flask Test. However, EPA had not finalized the
rulemaking before the Deepwater Horizon oil spill occurred because of competing
priorities and changes in management. If EPA had updated Subpart J, more
reliable efficacy data may have been available during the oil spill.
Responders to the Deepwater Horizon oil spill could have used other dispersants,
but not within the applicable window of time designated by Addendum 2 to a
directive issued by EPA and the Coast Guard. EPA's involvement in the response
included issuing Joint Directives to BP, making operational decisions, and
conducting additional dispersant testing. EPA involved senior officials in the
response because (a) the Agency was not prepared for the unprecedented volume
and duration of dispersant use and subsea application, and (b) additional clarity
was needed on roles and responsibilities in responding to a Spill of National
Significance. The involvement of senior EPA officials created confusion as to who
at EPA led response efforts for dispersant use.
The OIG Office of Counsel did not find evidence supporting the perjury
allegation.
We noted that EPA took proactive actions to make health and environmental data
available on the Agency's website throughout the spill response. Also, EPA
demonstrated proactive efforts to improve emergency response plans.
What We Recommend
We recommend that the Office of Solid Waste and Emergency Response establish
policies to review and update contingency plans incorporating lessons learned
during the Deepwater Horizon oil spill, and clarify roles and responsibilities for
Spills of National Significance. We also recommend that the office take steps to
revise Subpart J to incorporate the most appropriate efficacy testing protocol and
capture dispersant information. We recommend that the Office of Research and
Development develop a research plan on long-term health and environmental
effects of dispersants. The Agency generally agreed with our recommendations.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
MEMORANDUM
SUBJECT:
FROM:
TO:
August 25, 2011
Revisions Needed to National Contingency Plan Based on
Deepwater Horizon Oil Spill
Report No. ll-P-0534
Arthur A. Elkins, Jr. /,
Inspector General
Mathy Stanislaus
Assistant Administrator for Solid Waste and Emergency Response
Paul Anastas
Assistant Administrator for Research and Development
This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). This report contains findings that describe problems
we identified and corrective actions we recommend. This report represents the opinion of the OIG
and does not necessarily represent the final EPA position. EPA managers will make final
determinations on matters in this report in accordance with established audit resolution procedures.
The estimated direct labor and travel costs for this report are $277,478.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this
report within 90 calendar days. You should include a corrective actions plan for agreed-upon
actions, including milestone dates. We will post your response on the OIG's public website,
along with our memorandum commenting on your response. Please provide your response as an
Adobe PDF file that complies with the accessibility requirements of Section 508 of the
Rehabilitation Act of 1973, as amended. The final response should not contain data that you do
not want released to the public; if your response contains such data, you should identify the data
for redaction or removal. We have no objections to the further release of this report to the public.
We will post this report to our website at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact Melissa Heist,
Assistant Inspector General for Audit, at (202) 566-0899 or Heist.Melissa@epa.gov: or Patrick
Gilbride, Director, at (303) 312-6969 or Gilbride.Patrick@epa.gov.
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Revisions Needed to National Contingency Plan 11-P-0534
Based on Deepwater Horizon Oil Spill
Table of Contents
Chapters
1 Introduction 1
Purpose 1
Background 1
Noteworthy Achievements 5
Scope and Methodology 6
2 EPA Needs to Revise Subpart J of the NCP to Include a
More Appropriate Testing Procedure 8
EPA Could Have Used a Better Testing Procedure 8
Conclusion 11
Recommendation 11
Agency Comments and OIG Evaluation 11
3 EPA Increased Its Involvement During Deepwater Horizon Oil Spill 12
Other Dispersants Could Have Been Used but Not in the Time
Afforded by the Joint Directive 12
EPA Was Not Prepared for Unprecedented Volume and Duration
of Dispersant Use and Subsea Application 14
Additional Clarity Needed on Roles and Responsibilities for
Responses to Spills of National Significance 17
Conclusion 19
Recommendations 20
Agency Comments and OIG Evaluation 21
Status of Recommendations and Potential Monetary Benefits 23
Appendices
A Details on Scope and Methodology 24
B Allegation of Perjury by Senior Officials in Congressional Testimony 26
C OSWER's Responseto Draft Report 27
D OIG Evaluation of OSWER's Response 34
E ORD's Responseto Draft Report 36
F Distribution 37
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Chapter 1
Introduction
Purpose
The U.S. Environmental Protection Agency (EPA), Office of Inspector General
(OIG), received two separate Hotline complaints regarding the use of dispersants
in response to the Deepwater Horizon oil spill in the Gulf of Mexico. The first,
received on May 16, 2010, alleged that EPA "approved" the use of Corexit
although there were other less harmful substances available. We used the
following objectives to address the first Hotline complaint:
• Determine what steps EPA took to analyze Corexit to include it on the
National Contingency Plan Product Schedule.
• Determine EPA's role in the decision to use Corexit over other dispersants
in the Deepwater Horizon oil spill.
The second Hotline complaint, received July 25, 2010, alleged that EPA was
covering up the effects of the dispersant being used and alluded to EPA staff lying
and committing perjury. The OIG Office of Counsel reviewed the perjury
allegation.
Background
EPA's Oil Response Authorities and Organization
EPA's Office of Solid Waste and Emergency Response (OSWER) provides
policy, guidance, and direction for the Agency's emergency response and waste
programs. Within OSWER, the Office of Emergency Management (OEM) works
with other federal partners to prevent accidents as well as to maintain superior
response capabilities. While several laws address EPA's emergency management
program, two laws set forth EPA's responsibilities for responses to oil spills:
• Federal Water Pollution Control Act, as amended (Clean Water Act, or
CWA)
• Oil Pollution Act (OPA) of 1990
The CWA is the principal federal statute protecting navigable waters and
adjoining shorelines from pollution. Section 311 of the CWA addresses pollution
from oil and hazardous substance releases, providing EPA and the U.S. Coast
Guard (USCG) the authority to establish a program for preventing, preparing for,
and responding to oil spills. EPA implements CWA provisions through a variety
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of regulations, including the National Oil and Hazardous Substances Pollution
Contingency Plan (National Contingency Plan, or NCP).
OP A, which expanded the federal government's ability to respond to oil spills,
became federal law following the Exxon Valdez oil spill. OP A provided new
requirements for contingency planning by both government and industry. OPA also
established a 13-member Interagency Coordinating Committee on Oil Pollution
Research, currently chaired by the USCG. Executive Order 12777, signed in 1991,
implemented OPA and delegated responsibilities under Section 311 of CWA to EPA,
the U.S. Department of the Interior, and the U.S. Department of Transportation.
National Contingency Plan
The NCP serves as the federal government's blueprint for responding to oil spills
and hazardous substance releases. The NCP established national response
capability and overall coordination among the hierarchy of responders and
contingency plans for oil spills and hazardous substance releases, including a Spill
of National Significance. For discharges occurring in the coastal zone, the USCG
Commandant can designate a spill as a Spill of National Significance due to its
severity, size, location, actual or potential impact on the public health and welfare
or the environment, or the complexity of the necessary response effort. The
federal government performs three fundamental activities pursuant to the NCP:
• Preparedness planning and coordination for response to a discharge of oil
or release of a hazardous substance, pollutant, or contaminant
• Notification and communications
• Response operations at the scene of a discharge or release
The NCP is a key component of the National Response System, a multilayered
response network of individuals and teams from federal, state, local, and tribal
agencies, and industry. The system includes: the National Response Center,
On-Scene Coordinators (OSCs), the National Response Team (NRT), and the
Regional Response Teams (RRTs). The NCP designates EPA and USCG roles
and responsibilities for the NRT, RRTs, and OSCs. The NRT is responsible for
national response and preparedness planning, coordinating regional planning, and
providing policy guidance and support to RRTs. The Director for OEM serves as
EPA's representative/chair to the NRT; the USCG serves as vice-chair. RRTs are
responsible for regional planning and preparedness activities, and providing
advice and support to the OSC when activated during a response. The RRTs are
co-chaired by EPA and the USCG.
The NCP designates the USCG as the lead response agency and appoints the OSC
for spills within or threatening coastal zones, whereas EPA leads and appoints the
OSC for response to spills that occur in inland zones. For a Spill of National
Significance in the coastal zone, the NCP states that the USCG may name a
National Incident Commander to assume the role of OSC in communicating with
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affected parties and the public, and coordinating federal, state, local, and
international resources at the national level. For a Spill of National Significance in
the inland zone, the EPA Administrator may name a senior Agency official to assist
the OSC. The NCP says coordination will involve, as appropriate, the NRT, RRTs,
governors of affected states, and mayors or other chief executives of local
governments.
The NCP outlines requirements for contingency planning under OPA and requires
the development of Regional and Area Contingency Plans to prepare for the
possibility of an oil spill or hazardous substance release. Area Contingency Plans,
when implemented in conjunction with other provisions of the NCP, must be
adequate to remove a worst-case discharge and to mitigate or prevent a substantial
threat of such a discharge.
NCP Product Schedule
Executive Order 12777 delegated to EPA's Administrator the functions in CWA
Section 311 on schedules of dispersants. Subpart J of the NCP requires EPA to
prepare and maintain the Product Schedule, which OEM maintains. The schedule
is a list of dispersants and other spill-mitigating devices that may be used in
carrying out the NCP. Dispersants are chemicals that accelerate the natural
dispersion process created by energy, allowing oil to mix with water. Dispersants
include surfactants that break down oil into smaller droplets that are more likely
to dissolve into the water column. The decision to use dispersants involves trade-
offs between decreasing risks to water surface and shoreline habitats, and
increasing potential risks to organisms in the water column and on the sea floor.
Subpart J lists 12 data requirements that manufacturers must submit to have EPA
consider including their dispersant products on the schedule. These requirements
include dispersant application and storage methods, and efficacy and toxicity
testing information. The requirements limit toxicity testing to acute (short-term)
studies on one fish species and one shrimp species. Dispersants must demonstrate
at least a 50 percent plus or minus 5 percent effectiveness on the average of two
crude oils using a Swirling Flask Test (meaning the product must disperse at least
45 percent of oil in testing). Subpart J requires that laboratories conduct efficacy
and toxicity testing and manufacturers submit test results from these laboratories
with their product information. There are two levels of review for what
manufacturers submit: one performed by an EPA contractor, and one performed
by an OEM Product Schedule Manager who reviews materials and data for
completeness before listing products on the schedule. EPA does not perform
product testing to independently confirm test results submitted by manufacturers.
Inclusion on the Product Schedule does not mean that EPA approved the product
for use. Instead, it means the product may be authorized for use during a spill
response by the designated federal OSC.
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Deepwater Horizon Oil Spill
The Deepwater Horizon mobile offshore drilling unit, owned and managed by
Transocean and contracted by BP p.I.e., began drilling operations in January
2010. On April 20, 2010, the Deepwater Horizon unit exploded and caught fire,
and on April 22 it sank. The spill lasted 87 days and spilled an estimated
4.9 million barrels of oil,1 making it the largest marine oil spill in U.S. history.
The USCG, as designated federal OSC (FOSC) for spills occurring in the coastal
zone, led the federal response to the spill. On April 29, 2010, the Secretary of the
Department of Homeland Security designated the spill as a Spill of National
Significance and on May 1, 2010, named a USCG Admiral (then Commandant) as
National Incident Commander.
Responders first used dispersants on April 22. Responders used Corexit EC9527A
and Corexit EC9500A during the response. The standing inventory of EC9527A
was depleted, and EC9500A became the primary dispersant used during the
response. On April 30, BP suggested using dispersants subsurface at the source of
the spill, a novel approach to oil spill mitigation. Responders hoped that, in
addition to reducing shoreline impacts, subsurface application would result in less
dispersants used overall. BP conducted three rounds of testing between April 30
and May 10 on subsurface application, and a mix of federal scientists (including
but not limited to EPA, the USCG, and the National Oceanic and Atmospheric
Administration) worked to create a monitoring protocol for subsurface dispersant
use. Table 1 lists major response events, including joint actions of EPA and the
USCG on dispersant applications (denoted in red).
1 In its response to our draft report, OSWER indicated that there is an ongoing investigation into the number of
barrels spilled.
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Table 1: Major events in the Deepwater Horizon oil spill response
04/20/10 Deepwater Horizon oil drilling rig exploded.
04/29/10 Homeland Security Secretary designated the spill as a Spill of National Significance and the USCG
appointed a National Incident Commander (on 05/01/10).
05/10/10 EPA and the USCG issued a Joint Directive to BP requiring them to implement a monitoring and
assessment plan for subsurface dispersant applications.
05/14/10 EPA and the USCG issue Addendum 1 to the Directive on specific details of the monitoring plan and
requiring BP to include a more thorough oil analysis that will allow EPA to determine whether the
plume is toxic to aquatic life.
05/20/10 EPA and the USCG issued Addendum 2 to the Directive requiring BP to identify and use a less toxic
and as effective dispersant. BP responded to Addendum 2, saying Corexit was the only dispersant
available in sufficiently large quantities to be useful at the time of the spill.
05/26/10 EPA and the USCG issued Addendum 3 to the Directive telling BP to establish a goal to reduce
dispersant application by 75 percent. The Addendum limited subsurface dispersant application to
15,000 gallons per day, and eliminated surface application altogether except for when an exemption is
approved.
06/09/10 EPA Administrator approved a process for daily approval of surface dispersant applications.
06/30/10 EPA issued toxicity results on testing on eight dispersants listed on the NCP Product Schedule. EPA
concluded that Corexit EC9500A was not significantly more toxic than other dispersants tested.
07/15/10 The well was capped and oil flow halted.
08/02/10 EPA issued toxicity results on the second round of testing. Results confirmed that the dispersant used
in response, Corexit EC9500A, is generally no more or less toxic than other available alternatives.
Source: Information collected by OIG research based on a variety of sources.
Numerous questions have been raised on the effectiveness of dispersants, their
inherent toxicity, and the toxicity of dispersed oil. EPA maintains a modest oil
spill research and development program with one staff member and limited
contract staff support, and a budget between $500,000 and $700,000 annually
over the last 10 years.
Noteworthy Achievements
To increase transparency, EPA made health and environmental data available on
the Agency's website throughout the spill response and recovery operation. EPA
monitored air, water, sediment, and waste generated by the cleanup operations.
EPA posted environmental data, including air quality and water samples, on the
Agency's website as collected, and updated postings as needed. EPA's monitoring
and sampling activities provided the USCG and state and local governments with
information on potential impacts of the oil to the human health of residents and
aquatic life along the shoreline. EPA's activities included:
• Collecting samples along the shoreline and monitoring for chemicals
related to oil and dispersants in the air, water, and sediment
• Supporting and advising USCG efforts to clean the reclaimed oil and
waste from the shoreline
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• Being actively involved with new monitoring procedures for observing
effects of dispersants in the subsurface environment
OSWER demonstrated proactive efforts to improve emergency response plans.
In a November 2, 2010, memorandum, the OSWER Assistant Administrator listed
interim actions that RRTs should take in order to benefit from the experiences and
knowledge gained during the Deepwater Horizon oil spill. The memorandum
directed Regional Administrators to engage federal partners through the NRT to
reassess dispersant use guidelines under the NCP for future oil spills. The
memorandum tasked RRT representatives to work with their partners to revise
Area and Regional Contingency Plans with respect to dispersant use. For
example, the memorandum said plans should develop or address:
• A hierarchy of preferred oil spill response measures, including mechanical
recovery (such as skimming/booming and controlled burning), followed
by dispersant use
• Site-specific and oil-specific rationale for environmental trade-offs and
favorable dispersant use conditions, such as mixing energy, water depth,
wind speed, and distance from shorelines
• Steps to include the public and keep them informed
• A process for longer-term responses and the need for monitoring
information to reassess dispersant and chemical use
Since the Deepwater Horizon oil spill, EPA formed a workgroup, which includes
OEM, to address necessary revisions to the NCP, and undertook efforts to gather
and apply lessons learned from the spill.
Scope and Methodology
We conducted our work from August 2010 to May 2011 in accordance with
generally accepted government auditing standards. Those standards require that
we plan and perform our review to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our
objectives. We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our objectives.
To address our first objective, we analyzed the NCP Product Schedule and other
relevant laws and regulations to determine the steps EPA takes to include a
dispersant on the schedule. We reviewed information submitted by the
manufacturer of Corexit EC9527A and EC9500A to get those dispersants listed
on the schedule.
To address our second objective, we reviewed relevant laws and regulations that
authorize the federal government's response to oil spills. We reviewed federal
guidance and documents to understand established policies and procedures used
throughout the response. We conducted research on dispersants, including
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dispersant testing protocols and stockpiles. We gathered and analyzed information
and conducted interviews with OSWER, OEM, Region 6,2 the EPA Office of
Research and Development (ORD), and the USCG to understand EPA's role in
decisionmaking on the use of dispersants. Appendix A provides additional
information on our scope and methodology.
The OIG Office of Counsel addressed components of one Hotline complaint
pertaining to perjury allegations. Office of Counsel reviewed testimony by EPA
senior officials to determine whether evidence demonstrated that perjury existed.
Appendix B summarizes Office of Counsel's perjury review results.
2 Responders activated the Region 6 RRT because the Deepwater Horizon oil spill occurred in Region 6 waters.
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Chapter 2
EPA Needs to Revise Subpart J of the NCR to
Include a More Appropriate Testing Procedure
EPA and the manufacturer of Corexit completed required steps to include both
Corexit EC9527A and EC9500A on the NCP Product Schedule. However, EPA
has not updated the NCP since 1994 to include the most appropriate efficacy
testing protocol. Subpart J of the NCP identifies the requirements a manufacturer
must meet for a product's inclusion on the Product Schedule. One of the 12 data
requirements is efficacy results using the Swirling Flask Test (SFT). EPA's OEM
considered revising Subpart J to include changing the efficacy testing procedure
to the Baffled Flask Test (BFT)—a more reproducible testing procedure identified
in an EPA study a decade ago. OEM staff worked on revising the rule for a few
years, but had not finalized the rulemaking before the Deepwater Horizon spill
occurred because of competing priorities and changes in management.
Decisionmakers at the time of the spill relied on efficacy results from the SFT,
which was found to be susceptible to human error. The BFT has proved more
reproducible, and if EPA had updated Subpart J to include it as the standard
testing protocol, more reliable efficacy data may have been available at the time
of the Deepwater Horizon oil spill.
EPA Could Have Used a Better Testing Procedure
Section 311 of the CWA states that the NCP shall include a schedule identifying
dispersants that may be used in carrying out the NCP and the quantities of and
waters in which such dispersants may be used safely. NCP Subpart J delegates
EPA the responsibility to "prepare a schedule of dispersants, other chemicals, and
other spill mitigating devices and substances, if any, that may be used in carrying
out the NCP." To include a product on the schedule, a manufacturer must submit
12 data requirements, including efficacy and toxicity testing results obtained from
an independent laboratory. At the time of the Deepwater Horizon oil spill,
Subpart J included the SFT as the required efficacy testing procedure.
EPA's NCP Product Schedule includes as dispersants Corexit EC9527A and
EC9500A, both of which were used in the Deepwater Horizon oil spill response.
EPA first listed Corexit EC9527A on March 10, 1978, and Corexit EC9500A on
April 13, 1994. The Corexit manufacturer submitted all required data, including
SFT results with effectiveness values demonstrating at least 50 percent, plus or
minus 5 percent, on the average of two crude oils. (Corexit EC9527A efficacy
results equaled 50.4 percent and Corexit EC9500A results equaled 50 percent.)
There are two levels of review when manufacturers submit product information
for inclusion: one performed by an EPA contractor, and the other performed by
EPA's Product Schedule Manager who reviews materials and data for
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completeness before listing products on the schedule. EPA is not required to
perform product testing to confirm test results submitted by manufacturers.
The NCP was revised in 1994 to adopt the SFT as the official efficacy laboratory
testing procedure to list a dispersant on the schedule. Multiple EPA and outside
experts have expressed concerns with the SFT. In a 2001 report, ORD described
how it discovered—soon after the 1994 revision and after the SFT's first year of
use—"unexpected large discrepancies" between the data submitted by dispersant
manufacturers and those generated by EPA contract laboratories.3 An ORD
scientist and EPA's lead oil spill researcher said SFT procedures are not
reproducible and are susceptible to human error. Thus, EPA initiated research in
1999 to determine and correct the cause of the SFT's poor reproducibility.
In November 2001, a group of scientists published an EPA-funded research study
introducing a new testing procedure—the BFT—that was found to be more
reproducible than the SFT. An ORD scientist explained that a major source of
reproducibility problems with the SFT pertained to the flask design, which the
new BFT design addressed. Figure 1 shows both designs. In addition, a 2005
National Academy of Sciences report suggested the BFT as a better indicator of
efficacy than the SFT. The 2008-2009 biennial report for the Interagency
Coordinating Committee on Oil Pollution Research noted that EPA intended for
the BFT to be the new standard. A BP representative said that he does not find the
SFT relevant in the field.
Figure 1: SFT and BFT designs
Swirling Flask Test apparatus
Baffled Flask Test apparatus
Source: ORD.
3 EPA's lead oil spill researcher, Albert D. Venosa, described this history and early concerns with the SFT in a 2010
report, Use of the Baffled Flask Test to Determine the Dispersibility ofS. Louisiana Crude Oil by Eight Oil
Dispersant Products Listed on the NCP Product Schedule.
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Concerns with the SFT were one issue that prompted EPA to consider revising
Subpart J when staff first identified issues a decade ago. EPA's OEM informed us it
had worked on revising the rule for a few years and "prepared a proposed rule to
modify the efficacy test and several other test and data requirements planned for
promulgation in late spring 2010. However, publication of the proposed rule was set
aside. . . ." Former Agency managers said EPA did not finalize revisions due to
changes in management and competing priorities for program resources. EPA
promulgated revisions to the Spill Prevention, Control, and Countermeasure rule in
2002 and implementation of the rule became an Agency focus demanding staff and
resources. As a result, the NCP has not been updated since 1994.
Since the spill, the EPA Administrator testified that changes are needed to the NCP's
Subpart J, including dispersant registration and a more complete range of tests to
address human and environmental health. EPA informed us, "the available record
does not suggest the dispersant used was ineffective, or that it would not have also
passed the BFT." In fact, Corexit EC9500A,4 whose SFT results rank as the least
effective dispersant, is the second most effective dispersant using BFT results.
Table 2 lists dispersant efficacy rankings using SFT information from EPA's NCP
Product Schedule Technical Notebook and BFT results from ORD's 2010 study.
This recent study intended to determine how effective the eight dispersants
currently available on the schedule performed on south Louisiana crude oil at the
two temperatures in the Gulf of Mexico (5°C represents temperature conditions for
the deep sea dispersant injection, and 25°C represents temperature conditions for
surface application).
Table 2: Dispersant efficacy ranking using SFT and BFT
1
2
3
4
5
6
7
8
Ranking of efficacy test results (most to least effective)
SFT
DISPERSITSPC1000
ZI-400
SAP-RON GOLD
JD-2000
NOKOMIS 3-AA
NOKOMIS 3-F4
SEA BRAT #4
COREXIT EC9500A
BFT (5°)
DISPERSITSPC1000
COREXIT EC9500A
JD-2000
NOKOMIS 3-F4
NOKOMIS 3-AA
SAF-RON GOLD
ZI-400
SEA BRAT #4
BFT (25°)
DISPERSITSPC1000
COREXIT EC9500A
JD-2000
ZI-400
NOKOMIS 3-AA
SEA BRAT #4
NOKOMIS 3-F4
SAF-RON GOLD
Source: OIG analysis of NCP Technical Notebook SFT results and ORD's report. Column 1 is an
average of two oils using the SFT. Columns 2 and 3 are for one oil using the BFT.
Note: There were differences in testing protocol between the SFT conducted for the schedule and
this study; therefore, we limited comparability of information to ranking efficacy test results.
4 Corexit EC9527A was not one of the eight dispersants tested because, as we noted in chapter 1, the standing
inventory of EC9527A was depleted and EC9500A became the primary dispersant used during the response. We did
not have BFT results for Corexit EC9527A and could not include it in our analysis.
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Conclusion
When the Deepwater Horizon oil spill occurred in April 2010, EPA used
dispersant efficacy data on the Production Schedule that were based on the SFT.
If EPA had updated Subpart J to include the BFT as the standard testing protocol,
more reliable efficacy data would have been readily available at the time of the
spill.
Recommendation
We recommend that the Assistant Administrator for Solid Waste and Emergency
Response:
1. Develop appropriate NCP Subpart J testing revisions, including
proceeding with plans in place before the Deepwater Horizon oil spill, to
incorporate the most appropriate efficacy testing protocol. Develop an
action plan with milestones for these and any other necessary revisions
and take steps to propose NCP Subpart J revisions.
Agency Comments and OIG Evaluation
In its response to our official draft report, OSWER generally agreed with
recommendation 1. OSWER also provided comments on the report text. OSWER
stated that, even with the additional information provided by the BFT, the
dispersant used in the Deepwater Horizon oil spill would likely not have changed,
and that lessons learned from the spill have informed an ongoing examination of
Subpart J. While this may have been the case, we maintain that more reliable data
may have been available had OSWER proceeded with its plan to update Subpart J
prior to the spill. We revised our report text as appropriate based on OSWER's
response. Appendix C includes OSWER's full response, and appendix D includes
our evaluation.
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Chapter 3
EPA Increased Its Involvement During
Deepwater Horizon Oil Spill
We found that responders to the Deepwater Horizon oil spill could have used
other dispersants in the response, but not within the window of time afforded by
Addendum 2 to the pertinent Joint Directive. We also found that EPA involved
senior officials in daily dispersant decisions in addition to the Agency's
representative to the RRT. Prior to a spill occurring in deep waters, EPA is one of
several agencies responsible for contingency planning, including worst-case
discharges, and for listing products on the NCP Product Schedule. During an
actual spill response, EPA has responsibilities on the NRT and on RRTs. Section
910 of the NCP discusses the concurrence role for authorization of dispersant use
associated with the EPA RRT representative. OSWER said that concurrence
authority is not exclusive and does not prohibit involvement of senior
management. While we agree that EPA's Administrator retains delegated
authority, we found that EPA's involvement of senior Agency officials, in
addition to the RRT representative, created confusion on roles and
responsibilities. EPA's involvement in dispersant decisions was primarily due to
USCG's request given concerns surrounding the use of dispersants and subsea
application. We identified two main reasons why EPA involved senior officials
during the spill:
• EPA was not prepared for this unprecedented spill, including the volume
and duration of dispersant use, and subsea dispersant application.
• EPA and others needed additional clarity on roles and responsibilities for a
response to a Spill of National Significance.
Other Dispersants Could Have Been Used but Not in the Time
Afforded by the Joint Directive
The first Hotline complaint we received alleged that EPA approved the use of
Corexit when other, less harmful substances could have been used. Dispersants
EPA lists on the NCP Product Schedule "may be authorized for use" by the
designated FOSC. Subpart J of the NCP requires RRTs to address the desirability
of using dispersants as a part of their planning activities. Regional and Area
Contingency Plans must include, as appropriate, pre-authorization plans that
address the specific contexts in which to use such products. The Region 6 RRT
granted pre-authorization to the FOSC for dispersant use as defined by the RRT 6
FOSC Dispersant Pre-approval Guidelines and Checklist. The plan says, "The
only requirement for dispersant product selection is that the dispersant must be
included on the NCP Product Schedule and considered appropriate by the FOSC
for existing environmental and physical conditions."
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As the FOSC, the USCG approved BP's request to use Corexit EC9527A,
followed by Corexit EC9500A, in the response. On May 20, 2010, EPA and the
USCG issued Addendum 2 to the Joint Directive they had issued to BP. The
addendum required BP to identify and use one or more approved dispersants from
the Product Schedule that were available in sufficient quantities and were less
toxic and as effective as Corexit EC9500A. In addition, Addendum 2 required BP
to respond to EPA within 24 hours and use the alternate dispersant identified
within 96 hours of the Addendum's issuance and after receiving EPA's approval.
BP responded that no other dispersants that met the acute toxicity and effectiveness
criteria in Addendum 2 were available in sufficient quantities to be useful at the
time of the spill. According to manufacturers we spoke with, BP contacted a
number of them to determine production capacities and inventories available. All
manufacturers indicated to BP that they could meet the production requirements but
needed 3 to 10 days to ramp up production. BP maintained that Corexit EC9500A
remained the best dispersant option. Dissatisfied with BP's response, EPA
contacted manufacturers to verify production capacity and conducted its own
toxicity testing on eight dispersants.
BP chose the Corexit product as the dispersant to use due to prevalence and
national and international stockpiles at the time of the response. In addition, BP's
Gulf of Mexico Regional Oil Spill Plan listed the Corexit dispersants in over
99 percent of dispersants inventoried. EPA and the USCG interviewees said
Corexit has been tested many times, is well known, and responders are
comfortable with using it in a spill response.
EPA and the USCG issued Addendum 2 due to the volume of dispersants used
and because EPA said it received public concerns to use a less toxic dispersant. In
testimony before the House Energy and Commerce Subcommittee on Energy and
the Environment, Administrator Lisa P. Jackson said EPA will continue to push
BP to switch to less toxic alternatives due to the volumes of the dispersants being
used and the lengthening period of this crisis. EPA staff said the Agency
conducted its own toxicity testing on available dispersants to ensure that it based
decisions about ongoing dispersant use on the best available science. EPA staff
said its tests were consistent with those required by Subpart J but were conducted
by one laboratory for comparability of results. EPA said it did this rather than rely
solely on test data provided by the Product Schedule with test results conducted at
different times by different laboratories. Additionally, EPA staff said its tests used
Louisiana Sweet Crude Oil rather than #2 Fuel Oil (stipulated in the NCP) to
increase applicability of results to the Gulf situation. Finally, OEM's Regulation
and Policy Development Director said its tests also addressed BP's potential
endocrine disrupter concern.
During the spill, EPA used staff resources to obtain more information than was
available on the NCP Product Schedule. EPA's toxicity testing results, issued on
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June 30, 2010, verified that results were consistent with the schedule, and indicated
that none of the eight dispersants tested displayed biologically significant endocrine
disrupting activity. EPA's testing results did not affect which dispersant responders
used; Corexit was the only dispersant used in the response. Responders could have
used other dispersants, but manufacturers would have needed more time to ramp up
their production than the window of time afforded by Addendum 2. Three of the
five dispersant manufacturers contacted believed they wasted their time in
responding to various requests for information, that responders never really
considered their products, and that responders did not capture their production
capabilities. OSWER said it was not able to obtain consistent information on
production capacities from some manufacturers, and that the Agency worked
during the spill to be as transparent and open as possible with manufacturers.
EPA Was Not Prepared for the Unprecedented Volume and Duration
of Dispersant Use and Subsea Application
Contingency plans we reviewed were out of date at the time of the Deepwater
Horizon oil spill and were not updated to reflect deepwater drilling trends, lessons
learned from a 2002 Spill of National Significance exercise, and past major oil
spills. The OPA improved the nation's ability to prevent and respond to oil spills
and provided requirements for contingency planning. The NCP further outlines
these requirements and states that Contingency Plans shall be adequate to remove
a worst-case discharge and mitigate or prevent a substantial threat of such a
discharge. However, there is no specific requirement to update contingency plans
under the NCP or OPA. Improved contingency planning using available
information could have better prepared EPA to support USCG's response to the
spill.
Various documents address contingency planning:
• OPA established provisions that expanded the federal government's
responsibility and resources to respond to oil spills. OPA provided new
requirements for contingency planning by both government and industry.
• The NCP outlines requirements for Regional and Area Contingency Plans:
o Subpart C requires each designated area to develop a plan adequate
to remove a worst-case discharge and to mitigate or prevent a
substantial threat of such a discharge.
o Subpart J states that RRTs and Area Committees should address
the desirability of using various products on the NCP Product
Schedule based on certain environmental conditions. Plans should
include applicable pre-authorization plans that address the specific
contexts in which to use such products.
• The Region 6 RRT Regional Integrated Contingency Plan calls for
continuous reviews on the effectiveness and integration of all plans based
on actual response experiences, exercises, and other relevant information
(including the spill history of an area) that will lead to enhanced plans.
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Region 6 RRT contingency plans were outdated at the time of the Deepwater
Horizon oil spill. The Region 6 RRT completed an interim update to non-
dispersant sections in the Regional Integrated Contingency Plan on May 20, 2010,
subsequent to the explosion that caused the Deepwater Horizon oil spill. The
RRT-6 FOSC Dispersant Pre-approval Guidelines and Checklist was last updated
in 2001. One EPA official described plan revisions as a very detailed and
complicated process, but said a catastrophic event would trigger updates to
contingency plans. Plans were not updated to address the following events:
• A dramatic expansion of deepwater drilling in the Gulf of Mexico. Oil
production in the Gulf grew from 275 million barrels in 1990, where
4.4 percent came from deepwater wells, to 567 million barrels in 2009,
where deepwater wells yielded more than 80 percent of the total. In
addition, from 2001 to 2004, 11 major oil fields were discovered in water
depths of 7,000 feet or more. Figure 2 shows the increase in water depth of
wells drilled in the Gulf from 1940 to 2010.
• Lessons learned from a Gulf of Mexico Spill of National Significance
exercise in 2002 stating that pre-authorization plans should address
potential shortfalls of dispersant supplies and equipment. The lessons
learned document assigned EPA and the USCG as the steward agencies,
yet plans were not updated to address potential dispersant shortfalls.
OSWER said that dispersants were not used in this exercise but agreed
that pre-authorization plans should address potential shortfalls of
dispersant supplies and equipment.
• Hurricanes Katrina and Rita in 2004 and 2005, which collectively
destroyed 113 oil platforms, 70 vessels, and nearly 130 oil and natural gas
pipelines, and ravaged the Gulf Coast with major impacts to offshore
infrastructure and operations.
Figure 2: Depth of wells in the Gulf of Mexico, 1940 to 2010
12,000
1940
1950
1960
1970 1980
Year
1990
2000
2010
Source: National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Final
Report (January 2011), based on data from the Bureau of Ocean Energy Management, Regulation,
and Enforcement within the Department of the Interior.
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Further, contingency plans were not updated based on other historical spills. The
2010 Region 6 RRT Regional Integrated Contingency Plan defines a major
discharge as greater than 100,000 gallons in coastal waters. The Ixtoc I spill in the
Gulf of Mexico in 1979 released 3.3 million barrels of oil and lasted over
10 months. Between 1 million and 2.5 million gallons of mostly Corexit
dispersant products were applied. OSWER said lessons
from this 1979 spill were available before the
contingency plan was drafted. However, we found that
knowledge gained from this spill was not considered by
the Region 6 RRT when drafting its Regional Integrated
Contingency Plan to better address worst-case
discharges and spill duration. In addition, ORD's
Assistant Administrator said ORD would have liked to
have more data and insight from the Ixtoc I spill to build
into decisionmaking for future spills.
^M
The Ixtoc oil spill. (National Oceanic and
Atmospheric Administration photo) During the Deepwater Horizon oil spill, a number of
concerns were not addressed in contingency plans,
especially with regard to dispersants. For example, one EPA director described
the novel approach of applying dispersants subsurface as "somewhat trial and
error." Concerns included questions on the potential impact of the volume of
dispersants applied, effectiveness of dispersants at such low temperatures, oil
weathering as it rose to the surface, and environmental effects on the deep sea.
The Region 6 RRT Regional Integrated Contingency Plan itself lists one of the
disadvantages of dispersants as "lots of unknowns."
The Region 6 RRT did not update its plans because there is no requirement to do
so. Even though the Region 6 RRT Regional Integrated Contingency Plan calls
for the RRT to continuously review the effectiveness of plans, the NCP and OPA
do not require plans to be reviewed and updated. Response plans contained
boilerplate language taken from the NCP with slight variation based on local
geography. For example, the section on Chemical Countermeasures in the
Region 6 RRT Regional Integrated Contingency Plan essentially repeats the
information in Subpart J of the NCP. The plan does not address Region 6
RRT-specific issues such as logistical boundaries where dispersants may not be
used or discussion of the pre-authorization plan.
An EPA Region 6 division director said he did not believe EPA could have
anticipated a spill of this magnitude, and OSWER said that the dispersant pre-
approval plan was not anticipated for long-term use. However, more detailed and
updated contingency planning using available information could have better
prepared EPA and others to respond to the spill. Future planning should consider
the Deepwater Horizon scenario and address worst-case discharges, lessons
learned from Spill of National Significance exercises, and industry trends. OEM
staff said the RRT is working to revisit the conditions associated with dispersants
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under the pre-authorization plans. Additionally, on November 2, 2010, OSWER's
Assistant Administrator provided interim actions to RRTs to address issues raised
during the Deepwater Horizon oil spill. The interim actions call for Area and
Regional Contingency Plans to consider various conditions and limitations to
dispersants. The interim actions said plans should consider site-specific and oil-
specific rationale for environmental trade-offs and favorable dispersant use
conditions, as well as a process for longer-term responses and the need for
monitoring information to reassess dispersant use.
Additional Clarity Needed on Roles and Responsibilities for
Responses to Spills of National Significance
Additional guidance is needed on the roles and responsibilities for responding to a
Spill of National Significance. As the first Spill of National Significance in the
United States, and due to the unprecedented nature of the spill, EPA increased its
involvement during the Deepwater Horizon response. EPA's involvement was
primarily due to USCG's request given concerns surrounding the use of
dispersants and subsea application. EPA was involved and concurred with the
decision to use dispersants subsurface, issued a Joint Directive and Addenda with
the USCG to BP, and became involved in daily operational dispersant decisions.
The NCP and the National Response Framework allow the response structure to
adjust to include senior Agency officials, especially when responding to a Spill of
National Significance. However, the NCP does not provide guidance on the roles
and responsibilities of the National Incident Commander and other high-level
officials. As a result, involvement of senior EPA officials created confusion as to
who in EPA made dispersant decisions.
Under the NCP, for spills occurring in coastal zones, EPA is responsible for
planning prior to a spill and supporting the USCG during a response. The NCP
states that for a Spill of National Significance in the coastal zone, the USCG may
name a National Incident Commander who assumes the role of the OSC in
communicating with affected parties and coordinating resources at the national
level. The NCP further states that coordination will involve the NRT, RRTs, and
others as appropriate. However, the NCP does not address how high-level
officials other than the National Incident Commander can and should participate
in such a response.
Responders encountered a number of unique circumstances in the Deepwater
Horizon oil spill, such as the spill lasting 87 days and using close to 2 million
gallons of dispersants. Through its role as NRT chair, EPA became involved in
the decision to use dispersants subsurface at the request of the USCG FOSC.
Subsurface application was a novel approach to oil spill mitigation, and there was
limited knowledge on the effects of applying dispersants a mile below the surface.
EPA and the USCG issued a Joint Directive and Addendum 1 to BP outlining a
subsurface dispersant monitoring plan. EPA had never issued a joint directive
with the USCG before, and this action allowed the Agency to become more
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involved in the spill response, as EPA and the USCG held BP accountable for
following the Directive.
From left: An example of surface dispersant application (USCG photo); an example of a subsurface
dispersant application (image taken from Macondo video feed; photograph republished from
MSNBC/AP with permission from BP).
On May 26, 2010, EPA and the USCG issued Addendum 3 to the Directive and
required BP to limit the use of dispersants subsurface to 15,000 gallons per day
and eliminate surface application except when granted exemption. It was unclear
in our review what scientific basis responders used to set the 15,000-gallon limit.
The Addendum sought to limit dispersant use and require more documentation
because of concerns about ongoing dispersant applications in such large volumes.
Given unknowns on the long-term health and environmental effects of
dispersants, EPA wanted to use the least amount possible to be effective. Because
of the Deepwater Horizon oil spill, Congress appropriated $2.0 million to EPA to
support research on the short- and long-term environmental and public health
implications associated with the spill and surface/subsurface dispersant
applications. ORD plans to further its research efforts to include innovative and
expansive approaches to spill remediation.
Rather than EPA's involvement occurring though the RRT and NRT as would
happen in a typical response under the NCP, senior EPA officials became
involved in daily surface dispersant decisions. The Agency was concerned about
the precedent-setting amount of dispersants used and the number of exemptions
the USCG granted with minimal justification. On June 9, 2010, EPA developed a
hierarchy of decisionmaking intended to give staff-level EPA RRT
representatives on the ground some role in daily decisionmaking on surface
exemptions. However, internal communications indicated that senior Agency
officials made decisions on surface applications. Key staff in Region 6, including
EPA's representative to the Region 6 RRT and staff involved in the response, said
they did not have the decisionmaking authority for the Agency to approve
dispersant applications. However, our review showed they were involved in
gathering information for decisionmaking by senior EPA officials. One Region 6
response official described the process as "very political" and said "operational
control was taken away from the region." As a result, EPA's involvement of
senior officials in daily surface application decisions created confusion as to who
in the Agency made decisions. In its response to our draft report, OSWER said
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EPA Administrator Jackson during one Gulf trip.
(Photo from vwvw.RestoreTheGulf.gov).
that the RRT representative was heavily involved in the decisionmaking process,
and that the decisionmaking process included RRT and NRT members. OSWER
also said that senior Agency officials in Area Command, in consultation with
EPA's representatives in the Incident Command, gave concurrence to the FOSC.
EPA's Administrator increased her involvement,
as well as that of other senior Agency officials,
due to the novel approach of applying dispersants
subsurface, the size and nature of the spill, the
volume of dispersants used, and political
interest.5 In our interview with Administrator
Jackson, she said, "As good as our field staff is, I
was not going to have the response progress
without a senior set of eyes . . . especially when
you have the White House involved. ..."
Additionally, in her testimony on July 15, 2010,
the Administrator said, "I think a unified
command makes sense for smaller spills, but on something like this, there needs to
be additional clarity."
The concurrence process in place for surface dispersant application created delays
as EPA established a process requiring decisions be elevated to the OSWER
Assistant Administrator and, at times, to the Administrator. EPA senior officials
believe their involvement in the decision to apply dispersants subsurface reduced
the total amount of dispersants applied overall (subsurface and surface). EPA
officials also believe subsurface dispersant application was effective. In its
response to our draft report, OSWER said that all decisions regarding dispersants
and involving senior officials were clearly and appropriately vetted through the
NRT and the RRT, and that EPA acted consistent with the NCP in concurring on
the USCGFOSC's decisions. However, as the President's Commission Report
noted, due to insufficient guidance on roles and responsibilities for a Spill of
National Significance, additional protocol is needed that accounts for participation
by high-level officials. OSWER agrees with the need for additional clarity on
roles and responsibilities, as well as coordination and communication, for
responding to a Spill of National Significance.
Conclusion
Due to concerns surrounding the unprecedented volume and duration of
dispersant use and subsea application, EPA involved senior officials in addition to
the RRT representative. While Subpart J of the NCP discusses the RRT
5 A number of EPA officials testified before Congress. Throughout the spill and after the well was capped, the EPA
Administrator testified four times, the Deputy Administrator testified once, and ORD officials testified four times.
In addition, EPA participated in hearings before the National Commission on the BP Deepwater Horizon Oil Spill.
Political officials asked EPA questions on its roles and responsibilities in an oil spill response and the health and
environmental effects of dispersants.
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representatives' concurrence role for dispersant use, it does not preclude the
involvement of senior officials. However, EPA's involvement of senior Agency
officials in dispersant decisions created confusion within and outside the Agency.
Additionally, EPA did not update plans and was not prepared for a spill of this
magnitude, including the subsea use of dispersants. EPA could better respond to
future significant spills by enhancing planning efforts to address unknowns
encountered in the Deepwater Horizon response and by clarifying roles and
responsibilities of senior Agency officials.
Recommendations
We recommend that the Assistant Administrator for Solid Waste and Emergency
Response:
2. Have the OEM Director work through the office's NRT capacity to
establish a policy that calls for periodic reviews and updates to
contingency plans, after considering lessons learned from major national
and international oil spills, and/or based on area trends in oil drilling.
3. Modify the NCP Product Schedule and contingency plans to include
additional information (such as testing on crude oil, subsurface dispersants
application, volume and duration limits, etc.) learned from the Deepwater
Horizon oil spill response and use such information to revise and update
Area and Regional Contingency Plans.
4. Develop policies/procedures for subsurface dispersant application and
modify pre-authorization plans to address subsurface use.
5. Develop guidance and training for a Spill of National Significance that
clarifies roles and responsibilities for high-level Agency officials. Review
this response and the NCP and work with federal partners to address
lessons learned and include detail on how to respond to a Spill of National
Significance.
6. Review and analyze NCP Subpart J toxicity testing protocols to ensure
that emergency responders have the information necessary for appropriate
subsurface dispersant use for future oil spills.
7. As part of the action to review NCP Subpart J requirements, address the
need to capture and maintain dispersant manufacturer production
capacities, equipment requirements, and other necessary information to
better prepare for future oil spills. Make this information widely available
to the response community.
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We recommend that the Assistant Administrator for Research and Development:
8. Develop a research plan to address gaps on long-term health and
environmental effects of dispersants.
Agency Comments and OIG Evaluation
In ORD's response to our draft report, ORD agreed with recommendation 8.
ORD indicated that it has already taken steps to address this recommendation,
such as developing a longer-term strategy to address gaps specifically related to
the health and environmental effects of dispersants and other oil-spill-related
research needs. We concur with ORD's planned actions. We will make final
determinations on these actions once we review ORD's corrective action plan and
milestone dates to address our recommendation, and this recommendation is
unresolved with resolution efforts in progress. Appendix E contains ORD's
response.
OSWER generally agreed with our recommendations. OSWER's response
included comments on the text in chapter 3, most notably on the unprecedented
nature of the Deepwater Horizon oil spill. We agree with OSWER on the
magnitude of the spill, and we did not intend to imply that EPA's support to the
USCG was inadequate or that decisions were inappropriate. We believe that our
findings and corresponding recommendations align with the fact that this event
was unprecedented, and that EPA should take action to address lessons learned.
We discussed OSWER's response and our disposition in two meetings wherein
we focused on EPA's role under the NCP. OSWER and EPA's Office of General
Counsel provided us the following information, which we summarized in
chapter 1:
The Deepwater Horizon Oil Spill was declared a Spill of National
Significance. When there is a Spill of National Significance, the
FOSC assigned by the USCG for a coastal spill can appoint a
National Incident Commander. Under 40 CFR 300.323(c) of the
NCP, the National Incident Commander has the authority to
coordinate federal, State, local, or national resources for the
response. It is our understanding that the National Incident
Commander called upon the EPA Administrator for involvement in
various response actions, including the use of dispersants.
The NCP also provides for NRT involvement in a response,
particularly in novel or significant situations. Please see 40 CFR
300.110.
While 40 CFR 300.910 discusses the concurrence role for
authorization of dispersant use associated with the EPA RRT
representative, that concurrence authority is not exclusive and does
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not prohibit the involvement of senior management. The authority,
jurisdiction, and implementation provisions in the NCP flow from
Section 311 of the Clean Water Act and are reflected in Executive
Order 12777. All authorities under CWA 311 are delegated either
directly to the Administrator by Congress, or by Executive Order
12777 from the President to the Administrator. While the
Administrator's authority may be further delegated through senior
management on down to the RRT representative, the Administrator
(and other delegatees) retain the authority to act. The mere
delegation of authority does not prohibit the delegator from
exercising said authority.
OSWER agreed with recommendations 2, 3, 4, and 6, and stated that work is
already underway to address most of the recommendations. We will make final
determinations on these actions once we review OSWER's corrective action plan
and milestone dates to address our recommendations, and these recommendations
are unresolved with resolution efforts in progress. OSWER suggested the
following revision to recommendation 5: "Develop training for a Spill of National
Significance event that clarifies roles and responsibilities for high-level Agency
officials. Review the response and work with federal partners to address lessons
learned." We do not entirely agree with this revision because training alone may
not fully address lessons learned from the response. We believe that, in addition
to training, EPA should develop guidance based on lessons learned and be open to
considering any necessary revisions to the NCP. We revised recommendation 5 to
include some of OSWER's suggested language. For recommendation 7, OSWER
said that the proposed rule on Subpart J revisions may ask for comment on the
manufacturer being responsible for tracking production capacities. We recognize
this and adjusted our recommendation. Appendix C includes OSWER's full
response, and appendix D includes our evaluation of that response.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Rec. Page
No. No.
Subject
Status1
Planned
Completion
Action Official Date
POTENTIAL MONETARY
BENEFITS (in SOOOs)
Claimed
Amount
Agreed
To
Amount
Develop appropriate NCR Subpart J testing revisions,
including proceeding with plans in place before the
Deepwater Horizon oil spill, to incorporate the most
appropriate efficacy testing protocol. Develop an action
plan with milestones for these and any other necessary
revisions and take steps to propose NCR Subpart J
Assistant Administrator
for Solid Waste and
Emergency Response
20 Have the OEM Director work through the office's NRT
capacity to establish a policy that calls for periodic
reviews and updates to contingency plans, after
considering lessons learned from major national and
international oil spills, and/or based on area trends in oil
drilling.
20 Modify the NCR Product Schedule and contingency plans
to include additional information (such as testing on crude
oil, subsurface dispersants application, volume and
duration limits, etc.) learned from the Deepwater Horizon
oil spill response and use such information to revise and
update Area and Regional Contingency Plans.
20 Develop policies/procedures for subsurface dispersant
application and modify pre-authorization plans to address
subsurface use.
20 Develop guidance and training for a Spill of National
Significance that clarifies roles and responsibilities for
high-level Agency officials. Review this response and the
NCR and work with federal partners to address lessons
learned and include detail on how to respond to a Spill of
National Significance.
20 Review and analyze NCR Subpart J toxicity testing
protocols to ensure that emergency responders have the
information necessary for appropriate subsurface
dispersant use for future oil spills.
20 As part of the action to review NCR Subpart J
requirements, address the need to capture and maintain
dispersant manufacturer production capacities, equipment
requirements, and other necessary information to better
prepare for future oil spills. Make this information widely
available to the response community.
21 Develop a research plan to address gaps on long-term
health and environmental effects of dispersants.
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Research and
Development
10 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is unresolved with resolution efforts in progress
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Appendix A
Details on Scope and Methodology
We conducted our review to address two Hotline complaints on use of dispersants in the
Deepwater Horizon oil spill. We sought to determine what steps EPA took to analyze the
dispersant Corexit to include it on the NCP Product Schedule, as well as EPA's role in the
decision to use Corexit over other dispersants. To address both objectives, we reviewed and
summarized relevant laws, regulations, and guidance on oil spill response, including the NCP,
OP A, CWA, and Executive Order 12111. We reviewed activities by several EPA offices,
including OSWER, OEM, ORD, Region 6, and the Administrator's office. We also interviewed
key USCG officials given that the USCG served as the lead response agency.
To address our first objective we:
• Analyzed the NCP Product Schedule and reviewed information submitted by the
manufacturer of Corexit to get listed on the schedule.
• Interviewed current and former Product Schedule Managers in OEM to determine the
process of including a product on the Product Schedule.
• Interviewed an EPA contractor about its role supporting OEM in reviewing submissions
for the NCP Product Schedule, including the contractor's analysis of manufacturer-
submitted requirements and staff qualifications.
• Reviewed proposed revisions EPA planned for Subpart J of the NCP before the
Deepwater Horizon oil spill occurred and met with OSWER and OEM officials to discuss
necessary revisions to Subpart J as a result of the spill.
• Interviewed former OEM Regulation and Policy Development Division Directors to
understand why revisions to Subpart J of the NCP were not finalized before the
Deepwater Horizon spill.
• Interviewed an ORD dispersant expert to gain an understanding of dispersants and
efficacy testing protocols, including the SFT and BFT.
To address our second objective we:
• Documented the timeline of events of the Deepwater Horizon oil spill to understand the
sequence of events and highlight EPA's activities.
• Reviewed contingency plans from the Region 6 RRT as well as BP's Gulf of Mexico
Regional Oil Spill Response Plan to understand the level of preparation plans provided
during the response as well as the organizational structure underlying the response.
• Reviewed congressional testimony from EPA's Administrator, Deputy Administrator,
Assistant Administrator for ORD, and an ORD Division Director.
• To understand EPA's involvement throughout the response, including decision making
on dispersants, interviewed:
o The Administrator
o Deputy Administrator
o Assistant Administrators for OSWER and ORD
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o Acting Director and other key staff within OEM
o The Director of the Superfund Division and key staff in Region 6, including
EPA's representative to the Region 6 RRT and staff involved in the response.
• To understand the role of EPA versus that of the USCG, interviewed the Admiral
appointed as National Incident Commander, FOSCs who served during the 87-day
response, and USCG's deputy area commander and representative to the Region 6 RRT.
Also, reviewed e-mails and other documentation provided by the USCG.
• Reviewed documentation, meeting notes, and e-mails from Region 6, OSWER, and
ORD, including the Joint Directive and Addenda from EPA and the USCG, to understand
the flow of communication regarding the surface and subsurface use of dispersants.
• Attended a National Science Foundation Dispersant Workshop and a Clean Gulf
Conference to gain insight into the oil spill response industry and the role that dispersants
have during a response.
• Conducted research on dispersants, including dispersant testing protocols and stockpiles.
• Interviewed dispersant manufacturers to determine availability and production capacity
of their products and whether responders considered their products during the spill.
In May 2010, President Obama established the National Commission on the BP Deepwater
Horizon Oil Spill and Offshore Drilling through Executive Order 13543. The commission
examined the relevant facts and circumstances concerning the root causes of the Deepwater
Horizon explosion, fire, and spill and options to mitigate the impact of future spills. We reviewed
staff working papers and the final report, issued to the President in January 2011, to assess the
Commission's review and relevance on our two objectives.
The OIG Office of Counsel addressed components of the Hotline complaint alleging that the
EPA Administrator and employees committed perjury. Office of Counsel reviewed testimony by
EPA senior officials to determine whether evidence demonstrated that perjury existed. Appendix
B summarizes Office of Counsel's perjury review results.
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Appendix B
Allegation of Perjury by Senior EPA Officials
in Congressional Testimony
We received a Hotline complaint on July 25, 2010, asserting, among other matters, that EPA was
covering up the effects of the Corexit dispersant. The Hotline referred to claims by an EPA
employee that Administrator Jackson perjured herself in testimony before Senator Mikulski on
July 15, 2010, by making false statements that Gulf air and water are safe. Our Office of Counsel
reviewed allegations concerning perjury and did not address the cover-up allegation. In its
response to our draft report, the Agency denied any cover-up and said that it took aggressive
steps to affirmatively disclose data regarding dispersant use. We noted the Agency's response on
this point in chapter 1 of our report under "Noteworthy Achievements."
Even though the perjury allegation only identified the testimony given by the Administrator on
July 15, 2010, our Office of Counsel reviewed nine sworn statements (including that given by
the Administrator on July 15, 2010), and related responses to "Questions for the Record,"
provided by senior EPA officials to Congress during the response. To determine whether any
such evidence of perjury existed, our Office of Counsel relied on the legal definition of perjury
and the following three required elements of a perjury offense:
1. The first element is that the party must be under oath during their testimony, declaration,
or certification.
2. The second element is that the party must have made a false statement.
3. The third element is proof of specific intent, that is, that the party made the false
statement with knowledge of its falsity, rather than because of confusion, mistake or
faulty memory. The false statement must be material to the proceedings. A false
statement is material if it has "a natural tendency to influence, or is capable of
influencing, the decision of the decision-making body to which it was addressed."
The review did not find evidence supporting the elements of perjury. As none of the testimony
reviewed demonstrated any evidence that tended to indicate that senior EPA officials committed
perjury, the OIG did not make any recommendations to EPA on allegations of perjury raised in
the Hotline complaint.
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Appendix C
OSWER's Response to Draft Report
June 3 0,2011
MEMORANDUM
SUBJECT: Environmental Protection Agency's (EPA) Response to OIG's Draft Report:
"Revisions Needed to National Contingency Plan Based on Deepwater Horizon
Oil Spill;' Project No. OA-FY10-0221
FROM Mathy Stanislaus
Assistant Administrator
TO: Melissa M. Heist
Assistant Inspector General for Audit
We appreciate the opportunity to comment on the Office of Inspector General (OIG) draft audit
report: "Revisions Needed to National Contingency Plan Based on Deepwater Horizon Oil Spill"
(Project No. OA-FY10-0221), dated May 24, 2011.
The Deepwater Horizon (DWH) Oil Spill was an unprecedented event requiring an extraordinary
response. Throughout the course of the spill and for a time following the capping of the well,
EPA collected, analyzed and posted data on the Agency's website for over 5,000 air, waste,
sediment, and water samples; developed and implemented policies associated with the
unanticipated use of dispersants necessitated by this event; conducted scientific testing in
expedient timeframes; and demonstrated proactive efforts to improve operations. Although the
report recognizes many of the Agency's accomplishments and we generally agree with the
recommendations, there are portions requiring clarification, and we modified the fifth and
seventh recommendations.
The report does not accurately delineate the roles of EPA and the U.S. Coast Guard (USCG) in
the DWH response. Under the National Contingency Plan (NCP), the USCG is the lead agency
in response to coastal oil spills. EPA is the lead agency in response to inland oil spills. In this
event, EPA supported the USCG and worked with federal partners to ensure timely and
responsible decisions. In this regard, the statement that "EPA was not prepared for quantity and
duration of dispersant use" (pp 11 and 13) should be clarified to avoid the implication that the
support EPA provided to the USCG was inadequate. EPA acknowledges that the quantity and
duration of dispersant use were unprecedented during the DWH Spill of National Significance
(SONS) event.
EPA mobilized quickly and efficiently in support of the federal spill response. Numerous
activities demonstrate EPA's contributions, including deployment of personnel and equipment
into the field, enhanced monitoring activities, daily public data posting, collaboration and
cooperation with federal partners, involvement and expertise of EPA's research community to
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support decision making with sound science, development of waste management strategies and
incorporation of environmental justice concerns into any and all decision-making. Throughout
the course of the spill, EPA conducted this work at the highest level of scientific integrity, while
adapting and responding rapidly to ever-changing conditions and challenges of a crisis.
Our specific comments (provided in the Attachment) address concerns that require attention and
consideration. Should you have any questions, please contact Dana Tulis in the Office of
Emergency Management at (202) 564-8600. We appreciate your efforts and your incorporation
of our comments as you develop the final report.
This transmittal covers responses to recommendations regarding OSWER. Assistant
Administrator Paul Anastas has indicated that he will respond separately regarding
recommendations applicable to ORD.
Attachment
cc: Paul Anastas
ATTACHMENT
Specific comments are detailed below by section and chapter:
"At a Glance"
1. "... EPA did not proceed with rulemaking before the Deepwater Horizon oil spill
occurred because of competing priorities and changes in management. If EPA had
updated Subpart J, more reliable efficacy data could have been readily available during
the oil spill." Although this is true, only three of the eight dispersant products tested by
EPA for effectiveness using the preferred Baffled Flask Test would pass proposed
efficacy criteria. One of the three is the dispersant used in the spill. Consequently, even
with this additional information, the dispersant used in this spill would likely not have
changed. Separately, the lessons learned from DWH have informed an on-going
examination of Subpart J.
2. "EPA increased its involvement because (a) it was not prepared for the amount of the
dispersant use, and (b) additional clarity was needed on roles and responsibilities in
responding to a Spill of National Significance. EPA 's increased involvement created
confusion as to who at EPA led response efforts for dispersant use." EPA increased its
involvement not because it wasn't prepared for the amount of dispersant use but because
the amount of dispersant use was unprecedented. EPA has decision-making authority
under Subpart J of the NCP. The EPA representative to the Regional Response Team
(RRT) must concur on any pre-authorization for the use of chemical agents (such as
dispersants, surface washing agents, surface collecting agents, bioremediation agents, and
miscellaneous oil spill agents) for any oil spill. The EPA representative to the RRT must
also concur on the use of chemical agents for spill situations not addressed by pre-
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authorization plans. During the Deepwater Horizon spill, EPA was consulted and
responded in an expeditious manner.
Chapter 1
1. Page 2, "For a Spill of National Significance, Subpart D of the NCP states that USCG
[United States Coast Guard] and EPA can name a National Incident Commander to
assume the role ofOSCfor spills occurring in coastal and inland zones, respectively.'"
The statement does not fully reflect 40CFR300.323. The USCG appoints the FOSC in
the coastal zone and EPA appoints the FOSC in the inland zone. The "National Incident
Commander" title is used in 40CFR300.323 only for the coastal zone.
2. Page 4, "The spill lasted 87 days and spilled an estimated 4.9 million barrels of oil,
making it the largest marine oil spill in U.S. history." OIG should note that investigation
into the number of barrels spilled is ongoing.
Chapter 2
1. Page 1, "The BFT [Baffled Flask Test] has proved more reproducible, and if EPA had
updated Subpart J to include it as the standard testing protocol, more reliable efficacy
data would have been readily available at the time of the Deepwater Horizon oil spill."
As noted above, it is true more reliable efficacy data would have been available at the
time of the spill. But test results shows that this data may not have made any difference
in the dispersant used.
2. Table 2, "Dispersant Efficacy Ranking Using SFT[Swirling Flask Test] andBFT
[BaffledFlask Test]" may be misleading. The efficacy test data in Column 1 is an
average of two oils using the SFT while the data in Columns 2 and 3 is for only one oil
using the BFT. The underlying data confirms that the dispersant used compares well
with all those available at the time of the spill.
Chapter 3
1. Page 1, " We found that responders to the Deepwater Horizon oil spill could have used
other dispersants in the response, but not within the window of time afforded by
Addendum 2 to the pertinent Joint Directive. Further, we found that EPA increased its
involvement in the Deepwater Horizon oil spill response beyond the role envisioned for
the Agency in the NCP for deep water spills, due primarily to USCG's request given
concerns surrounding the use of dispersants and subsea application" Choice of
dispersants was initially vested in the USCG FOSC. In exercising its concurrence via the
Joint Directive, EPA reviewed available information and required additional toxicity
testing. EPA increased its involvement given the concerns surrounding the use of
dispersants but its role was entirely consistent with the NCP. Prior to the Deepwater
Horizon oil spill the US had never used dispersant subsea or in such quantities. Finally,
as noted above, the EPA representative to the RRT must concur on any pre-authorization
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for the use of chemical agents on any oil spill or on the use of chemical agents for spill
situations not addressed by pre-authorization plans.
See Appendix D, Note 1, for OIG Response.
2. Page 11, 'EPA was not prepared for the amount and length of dispersant use." The
magnitudes of oil spilled and dispersant used were unprecedented. However, this should
not imply that EPA's support was inadequate.
3. Page 12, "Three of the five dispersant manufacturers contacted believed they wasted their
time in responding to various requests for information, that responders never really
considered their products, and that responders did not capture their production
capabilities. " EPA is sympathetic with the manufacturer's concerns. At the same time,
as noted above, USCG had the lead for dispersant choice. EPA worked during the spill to
be as transparent and open as possible regarding the situation with manufacturers under
unusual circumstances and the challenges associated with potentially interrupting the spill
response to change products along with whether sufficient quantity could be provided.
EPA was not able to obtain consistent information regarding production capacities from
some of the manufacturers.
4. Page 13, "Improved contingency planning using available information could have better
prepared EPA to support USCG's response to the spill." As previously stated, the
Deepwater Horizon Oil Spill was an unprecedented event. However, this should not
imply that EPA's support to the USCG was inadequate.
5. Page 14, "Lessons learned from Spill of National Significance exercises in 2002 stating
that pre-authorization plans should address potential shortfalls of dispersant supplies
and equipment. Hurricanes Katrina and Rita in 2004 and 2005, which collectively
destroyed 113 oil platforms, 70 vessels, and nearly 130 oil and natural gas pipelines, and
ravaged the Gulf Coast with major impacts to offshore infrastructure and operations."
These statements need clarification. They seem to suggest that dispersants were involved
in the exercises and hurricane responses from which EPA could have learned and been
better prepared. This is not the case. Although it is true pre-authorization plans should
address shortfalls of dispersant supplies and equipment, the exercises and hurricanes did
not involve or contemplate the use of dispersants to the extent as in the BP Spill. Note
that EPA and USCG did update the area contingency plan (ACP) in spring of 2010. This
update was completed in the spring of 2010 despite the responses to Hurricanes Katrina,
Rita, Gustav, and Ike.
See Appendix D, Note 2, for OIG Response.
Page 14, "The Ixtoc I spill in the Gulf of Mexico in 1979 released 3.3 million barrels of
oil and lasted over 10 months. The Region 6 RRT could have used knowledge gained
from this spill to update its Regional Integrated Contingency Plan to better address
worse-case discharges and spill duration. " The Ixtoc Oil Spill in 1979 occurred before
OPA existed and before the ACP was developed. Thus, its lessons were available before
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the ACP was drafted and we question the record support for the conclusion that the ACP
needed updating to reflect it.
See Appendix D, Note 3, for OIG Response.
7. Page 15, "An EPA Region 6 Division Director said he did not believe EPA could have
anticipated a spill of this magnitude. However, more detailed and updated contingency
planning using available information could have better prepared EPA and others to
respond to the spill. Future planning should consider the Deepwater Horizon scenario
and address worst case discharges, lessons learned from Spill of National Significance
exercises, and industry trends." In context, it seems the Region 6 Division Director was
speaking directly to the use of dispersants under the pre-approval plan and the inability of
the USCG and the RP to control the release. EPA fulfilled its obligations as a co-chair of
the Regional Response Team (RRT), and exercised its concurrence on the use of a
dispersant based on the dispersants available. The dispersant pre-approval plan was not
anticipated for long-term use, rather pre-approval was developed to assure that the FOSC
and/or the RP has appropriate tools for the immediate response to a spill. Because of this,
EPA increased its involvement in surface dispersant decisions during the Deepwater
Horizon oil spill and instituted procedures to monitor for effects associated with the sub-
surface application of dispersants. Region 6 is working within the Region 6 RRT to
revisit the conditions associated with dispersant use under the Pre-Authorization Plan.
8. Page 16, "... the NCP does not provide guidance on the roles and responsibilities of the
National Incident Commander and other high-level officials. As a result, involvement by
senior EPA officials created confusion as to who made dispersant decisions. " All
decisions regarding dispersants and involving senior officials were clearly and
appropriately vetted thru the National Response Team (NRT) as well as the RRT.
9. Page 16 Under the NCP, for spills occurring in coastal zones, EPA is not given any
decision-making authority, but EPA is responsible for planning prior to a spill and
supporting the USCG during a response. The NCP states that for a Spill of National
Significance in the coastal zone, USCG may name a National Incident Commander who
assumes the role of the OSC in communicating with affected parties and coordinating
resources at the national level. The NCP further states that coordination will involve the
NRT, RRTs, and others as appropriate. However, the NCP does not address how high
level officials other than the National Incident Commander can and should participate in
such a response. " EPA does have decision-making authority under Subpart J of the
NCP. The EPA representative to the RRT must concur on any pre-authorization for the
use of chemical agents (such as dispersants, surface washing agents, surface collecting
agents, bioremediation agents, and miscellaneous oil spill agents) for any oil spill. The
EPA representative to the RRT must also concur on the use of chemical agents for spill
situations not addressed by preauthorization plans. Finally, 40CFR300.323(b) addresses
the role of EPA senior officials in responding to a Spill of National Significance which
provides EPA a concurrence role; 40 CFR 300.323(b) provides that the Administrator
may name a senior Agency official to assist in strategic coordination.
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10. Page 16. "It was unclear in our review what responders based the 15,000-gallon
limit upon, but the Addendum sought to limit dispersant use and require more
documentation because of concerns about ongoing dispersant applications at such
large volumes. " The gallon limit was based on a 75% reduction in the total volume
of dispersant used.
11. Page 17, "Rather than EPA 's involvement occurring though the RRTandNRTas
would happen in a typical response under the NCP, senior EPA officials became
involved in daily surface dispersant decisions....Key staff in Region 6, including
EPA 's representative to the Region 6 RRT and staff involved in the response, said
they did not have the authority to approve dispersant applications. " The text should
go on to point that out the RRT representative was heavily involved in the decision-
making process, and that the decision-making process included the RRT and the
NRT members. Senior Agency officials in Area Command, in consultation with
EPA's representatives in the Incident Command, gave concurrence to the FOSC.
12. Page 17, "The concurrence process in place for surface dispersants inherently
created delays as EPA elevated decisions to the OSWER Assistant Administrator
and, at times, to the Administrator. " We are unclear on the support in the record
that delays occurred or were inherent given the frequent and ready communication
within the Agency. Timely decisions were made given the magnitude of dispersant
use.
See Appendix D, Note 4, for OIG Response.
13. Page 18 "OSWER agrees that the NCP needs additional clarity on the roles and
responsibilities of various agencies, as well as coordination and communication, for
responding to a Spill of National Significance'' The statement needs to be clarified
to, "OSWER supports clarification of roles for SONS in NRT guidance. Further
evaluation of changes to the NCP is on-going."
14. Page 18, "EPA increased its involvement in the Deepwater Horizon oil spill over the
role envisioned for the Agency in the NCP for deepwater spills." EPA increased its
involvement because the amount of dispersant used and the way in which it was
applied (subsea) was unprecedented. EPA does not view this involvement as outside
the role envisioned by the NCP for deepwater spills since, as stated above, EPA must
concur on the use of dispersants in all spills.
Recommendations
As stated earlier, EPA generally agrees with most of OIG's recommendations. Work is
already under way to address most of the recommendations. However, EPA needs to modify
recommendation 5 and 7, as noted below, to agree with these recommendations as well.
For recommendation 5, EPA has developed training on roles and responsibilities for
large scale events. The NRT is also addressing lessons learned. As such, we propose
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revising recommendation 5 to state, "Develop training for a Spill of National Significance
event that clarifies roles and responsibilities for high-level agency officials. Review the
response and work with federal partners to address lessons learned."
For recommendation 7, we want to clarify that the proposed rule may ask for comment on the
manufacturer being responsible for tracking production capacities since this would not be an
EPA responsibility.
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Appendix D
OIG Evaluation of OSWER's Response
General Comments
OSWER generally agreed with our report recommendations. We revised our report text as
appropriate based on OSWER's response to our draft report, most notably to note the
unprecedented nature of the Deepwater Horizon oil spill and to clarify that we did not intend to
imply that EPA's support to the USCG was inadequate or that decisions were inappropriate or
inconsistent with the NCP. The following points pertain to those remarks in OSWER's response
that required OIG rebuttal based on facts obtained through our review.
Note 1 - Response to Chapter 3 Comment 1
We changed our final report to read, "While we agree that EPA's Administrator retains delegated
authority, we found that EPA's involvement of senior Agency officials, in addition to the RRT
representative, created confusion on roles and responsibilities. EPA's involvement in dispersant
decisions was primarily due to USCG's request given concerns surrounding the use of
dispersants and subsea application." We understand that EPA felt it necessary to structure this
concurrence process in light of the unprecedented nature of the spill; however, the EPA
representative to the RRT stated that they did not have the decision making authority within
EPA. Applying lessons learned from this response would help clarify roles and responsibilities of
senior Agency officials alongside those of responders identified in the NCP (e.g., RRT
representatives).
Note 2 - Response to Chapter 3 Comment 5
We added text to clarify these statements. Our three bulleted examples meant to demonstrate
events that should trigger updates to contingency plans, regardless of whether or not dispersants
were used. We agree with OSWER that dispersants were not used in the 2002 Gulf of Mexico
Spill of National Significance exercise, but the lessons learned document from the exercise
considers the use of dispersants a national issue and assigned EPA and the USCG to address the
shortfalls of dispersants. Additionally, Hurricanes Katrina and Rita caused a great deal of
damage in the Gulf of Mexico to oil facilities, yet deepwater contingency plans were not updated
to account for simultaneous events and/or the extensive damage that they caused.
Note 3 - Response to Chapter 3 Comment 6
In addition to spilling 3.3 million barrels of oil and lasting over 10 months, between 1 and
2.5 million gallons of dispersants were applied in response to the Ixtoc I spill. Even though this
spill occurred prior to OPA and the Area Contingency Plan, the Ixtoc I spill duration and amount
of dispersants was not considered when drafting either of these documents. We understand that
the Deepwater Horizon oil spill was unprecedented in many ways, yet the historic Ixtoc I spill
could have been taken into consideration when developing planning documents.
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Note 4 - Response to Chapter 3 Comment 12
As OSWER noted in its chapter 3 comment 7, pre-approval was developed to assure that the
FOSC and/or the responsible party has appropriate tools for immediate response to a spill. We
noted that the concurrence process developed during the response—wherein EPA escalated
decisions to senior Agency officials instead of the RRT representative—created delays. We
observed some examples where it took several hours for some dispersant application decisions
and noted that these decisions could have been more immediate had EPA's RRT representative
been able to make decisions in real time. We understand that this was an unprecedented spill and
are not in a position to say decisions were "untimely" given the magnitude of the response. We
recognize the value of senior management's decisionmaking and taking responsibility for those
decisions. Nevertheless, escalating decisions up the command chain creates delays over
decisions made instantly by the RRT representative.
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Appendix E
ORD's Response to Draft Report
June 3 0,2011
MEMORANDUM
Subject: OIG' s Draft Report: "Revisions Needed to National Contingency Plan Based on
Deepwater Horizon Oil Spill" Project No. OA-FY10-0221
From: Paul T. Anastas, PhD
Assistant Administrator for Research and Development
To: Melissa M. Heist
Assistant Inspector General for Audit
We have reviewed the Office of Inspector General (OIG) draft audit report: "Revisions
Needed to National Contingency Plan Based on Deepwater Horizon Oil Spill" (Proj ect No. O A-
FY10-0221), dated May 24, 2011. While we are aware that the Office of Solid Waste and
Emergency Response (OSWER) is providing a more in-depth response articulating clarifications
and concerns with some of the recommendations and findings, this letter is to state ORD's
concurrence with the OIGs recommendation to ORD and have already made significant progress
toward that end.
The recommendation to "Develop a research plan to address gaps on long-term and
environmental effects of dispersants," is one we have already begun to address. We have
developed a longer-term research strategy to address gaps specifically related to the health and
environmental effects of dispersants, as well as addressing other oil spill-related research needs.
Our strategy has been reviewed by the EPA Science Advisory Board and we anticipate
publication in Fall 2011.
Our goal is to support the Agency's mission and decision-making through sound science.
We appreciate the review by OIG and the opportunity to comment on this report as it pertains to
EPA's research program. Should you have any questions, please contact Cindy Sonich-Mullin,
National Homeland Security Research Center, ORD at (513) 569-7923 or Norman Adkins,
Office of Resources Management and Administration at (919) 541-0872.
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Appendix F
Distribution
Office of the Administrator
Assistant Administrator for Solid Waste and Emergency Response
Assistant Administrator for Research and Development
Regional Administrator, Region 6
Agency Followup Official (the CFO)
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Director, Office of Regional Operations
Audit Followup Coordinator, Office of Solid Waste and Emergency Response
Audit Followup Coordinator, Office of Research and Development
Audit Followup Coordinator, Region 6
Director, Office of External Affairs, Region 6
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