Act of Congress Didn't Stop Experimental Use of Oil Dispersant

Law basically ignored when Gulf oil started spilling

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More than 1,8 million gallons. That’s the amount of dispersant applied to the Gulf oil spill. Unfortunately, dispersants were used in the Gulf in unprecedented ways and amounts, turning the Gulf into a massive experiment largely keeping the public in the dark as to the risks these dispersants pose.

It wasn’t supposed to happen this way. In the aftermath of the Exxon Valdez oil spill, Congress enacted a new law calling for advance study and approval of dispersants as part of oil spill response planning. The performance of both government regulators and the industry fell far short of the promise and dictates of this law.

During the first few weeks of the Gulf spill, the names of the ingredients in Corexit—the dispersant being used in massive amounts—were kept secret. The secret ingredients were identified only after congressional demands, media outcry and a Freedom of Information Act request filed by Earthjustice.

Beyond the names of the Corexit ingredients, what do we know about the hazards? Not much. The only studies submitted to EPA for Corexit were acute toxicity studies (which tell you what concentration of the chemical kills 50 percent of the test subjects) for one species of shrimp and one species of fish. EPA requires no other toxicity, environmental or health studies before it makes a dispersant eligible for use.

Even if the government demanded more extensive toxicity testing, it has established no limits on the toxicity of dispersants it will allow to be used in oil spills.

The government does not require oil companies to use the most effective, least toxic dispersant. While oil and dispersants poured into the Gulf, the government and BP went back and forth about whether there were any equally or more effective, but less toxic, dispersants than Corexit. BP claimed that it couldn’t even analyze the alternatives, because their ingredients were not publicly available. And EPA, apparently not trusting data that the companies had submitted, conducted its own tests—as the oil spill was occurring—on Corexit.

In the wake of the Gulf spill, oil companies and government regulators need to do more to prevent spills like this from happening. But we also need to reform the way we respond to oil spills. Congress has held hearings on the use of dispersants, and Sen. Frank Lautenberg has introduced a bill on the issue. To guide the reform efforts, Earthjustice has prepared a paper identifying flaws in the regulation of dispersants and proposing reforms in five key areas:

• The ingredients of chemical dispersants should be made public so that workers, volunteers, responders and the public know what they are being exposed to and researchers can track the dispersants used in a spill.
• EPA should mandate a full suite of environmental and health tests for dispersants before their use can be authorized. It is imperative that dispersants be tested for their impacts on human health, reproduction, synergistic effects (dispersant plus crude), chronic and long-term effects.
• EPA should determine which dispersants are more environmentally harmful and allow only the least toxic ones be used.
• Oil spill response plans need to impose safeguards for people and wildlife when dispersants are used.
• EPA should have expanded authority to control the use of dispersants in an oil spill.
More information, standards and safeguards should be addressed upfront in the planning stage so that emergency response decisions can be as fully informed by data and well-guided by carefully thought-out planning as possible.

In the absence of such rigorous information development and planning, federal decision makers have been placed in the unenviable position of embarking on a massive experiment in the Gulf of Mexico, making spur-of-the-moment decisions without an adequate scientific foundation or safeguards, under a shroud of excessive secrecy.

We applaud Sen. Lautenberg for introducing legislation, The Safe Dispersants Act, S. 3661, that is a first step toward reforming the regulation of dispersants. But even if Congress does not act, EPA has the authority to accomplish many of the proposed reforms to ensure greater testing, disclosure, accountability and oversight of chemical dispersants before we face another catastrophic oil spill.

Read the full proposal here.


Patti is a senior attorney of the Northwest regional office in Seattle, where she works to fight efforts to turn the Pacific Northwest into a fossil fuel export hub. She also leads Earthjustice's pesticide work and efforts to preserve access to the courts and legal remedies. Her litigation experience includes notable successes in safeguarding the region’s old-growth forests, restoring Pacific salmon, and more.