Revitalization of the Clean Water Act
The Clean Water Act (CWA) was enacted in 1948 as the Federal Water Pollution Control Act, but the statute was significantly changed and amended in 1972 and became known as the Clean Water Act.
The following is an analysis of how current spill response systems rate against the intent of the law as expressed in the Clean Water Act.
1. The CWA establishes “it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited”14 [emphasis added].
2. Toxic pollutant defined: Toxic pollutants, a subset of hazardous substances, include pollutants that “after discharge and upon exposure, ingestion, or inhalation … [by] any organism” will “cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, … or physical deformations in such organisms or their offspring” (33 U.S.C.A. § 1362).15
3. Dispersants (Corexit 9527, 9500, etc.) contain toxic pollutants, which were applied in toxic amounts in the Gulf of Mexico, which adversely affected human health and marine life.16
4. Toxic amounts defined: Relative to a multitude of environmental and other factors, “any degree of harmful impacts to any life form by exposure” would be a good working definition for the CWA expression of toxic amounts. Prior to May 2010, the EPA had no clear-cut guidelines for the determination of what would constitute “toxic dispersant amounts.” Further, the Agency has admitted that long-term effects of dispersants on aquatic life are unknown.17 In June 2010, in response to public concerns and reports of resultant illness over the use of Corexit dispersants in the Gulf of Mexico, the EPA conducted short-duration tests on an emergency basis to determine the least toxic dispersant to use and then issued toxicity threshold levels related to the application of dispersants.18 Just prior to this, BP had also responded to the EPA’s request to fnd a less toxic dispersant.19 The public was then reassured by the EPA that the toxicity range of Corexit 9500 recommended by BP fit within the LC 50viii toxicity range for aquatic organisms of >10–100 ppm, deemed “slightly toxic” per EPA’s “five-step scale of toxicity categories used to classify pesticides” (see page 8).
With respect to this criterion, a lower toxicity number indicates a more toxic com- pound; thus, between 10 and 100 falls within a range considered toxic by the EPA and has raised questions and spawned debate within a variety of scientific institutions conducting research in this area.
We question how nearly 2 million gallons of a dispersant containing 57 chemicals applied on the surface and subsea for a protracted period of time in a broad area could be deemed not toxic amounts and slightly toxic. Subsequent studies cited by the EPA and NOAA still express a noncommittal position on this point.
Common sense would indicate that when introducing any chemical substance into a freshwater or marine ecosystem that is not native to that environment (for instance, crude oil or hydrocarbon-based dispersants), any toxicity level other than nontoxic would be of concern for the health of the local environment, let alone potential impacts on the regional human populations. For example, according
to the New Jersey Department of Health, the presence of 2-butoxyethanol (a surfactant ingredient in Corexit 9527 and evident in 9500 per EPA 1999 NCP Notebook) has no nontoxic range.20 The MSDS (Material Safety Data Sheet) states clearly: “Do not contaminate surface waters [with this product].”
5. The CWA and subsequent regulations (OPA 90 21 and 40 CFR 22) call for the design of plans and actions that result in the REMOVAL of hazardous waste and toxic pollutants from the environment. The EPA is responsible for initiating, managing, and overseeing appropriate removal actions.
6. The now obsolete but primary response method of dispersant application amounts to using toxic pollutants to treat toxic pollutants—a primitive and counterproductive action that increases the toxicity by a factor of 10x or greater.23 The mechanism of action of chemical dispersants, such as Corexit, is as a detergent. Corexits consist of a class of compounds that have both aqueous/polar and oil/nonpolar functionalities. Detergents provide a solubilizing action, similar to a solvent or soap, to make oil soluble in water. The greatest immediate impact of the use of a chemical dispersant, such as Corexit, is to make the normally insoluble oil (i.e., sheen, slicks, tar balls, etc.) “disappear” by dissolving it in the water column. While the oil contamination is not seen visually by the naked eye, it is nevertheless still present in the environment and can be readily detected by scientific instrumentation. This “solution to pollution by dilution” is inconsistent with the US EPA’s policy and regulations for management of environmental contamination. In other words, chemical dispersants render the containment or removal of spilled oil impossible by making (normally) separated oil and tar-like phases totally soluble in water to result in maximum dilution and “dispersion” of the oil. In addition, the detergent action provided by chemical dispersants under high-loading conditions can act as a biocide by disrupting or lysingix the tissues of biological organisms and bacteria that come into contact with these dispersants.
The CWA establishes “it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” … Prior to May 2010, the EPA had no clear-cut guidelines for the determination of what would constitute “toxic dispersant amounts.” Further, the Agency has admitted that
long-term effects of dispersants on aquatic life are unknown.
Detergents are commonly used in laboratory and scientific research to disrupt the integrity of or dissolve (lyse) biological cell walls to release cellular contents for use in the laboratory. The effect of cell lysing is to liquefy cell wall membranes, resulting in cell death. Thus, chemical dispersants are not designed to remove oil from the environment; they solubilize/dissolve it and alter the natural biological mechanisms and defenses against toxic chemicals of human and other life forms over scores of years. As covered above, studies have confirmed that oil plus its associated chemical dispersants remain in the environment/water column for extended periods of time, resulting in adverse impacts on fora and fauna for up to 20 to 30 years, as occurred after the Ixtoc and Valdez spills.
7. Moreover, the sole-source preauthorization of dispersants (large stockpiles of Corexits dominate contingency plan staging at the time of this writing) endorsed by the EPA and USCG, to the exclusion of other less toxic products, is an illegal procurement authorization of sole-sourced proprietary products owned by a private company. The US government is required to foster free and open competition of products it uses to implement the CWA. It should be noted that less toxic products have experienced arbitrary regulatory hurdles of such huge proportions that many years of work, including meeting expensive EPA test requirements, have only resulted in closed doors for suppliers/companies ready to deploy these alternatives. Furthermore, this bureaucracy has also made it difficult for federal On-Scene Coordinators (OSCs) to request usage of dispersant alternatives already on the NCP Product Schedule, since these are outside the “long-established system,” with no clear-cut protocols.
The US Interagency Coordinating Committee on Oil Pollution 2010–2011 Research Report, 2012 Biennial Report to Congress,24 stated: “Some use the BP Deepwater Horizon oil spill response to suggest that oil spill technology has not changed since Exxon Valdez; however, a closer examination suggests otherwise.” The report defends and asserts that the BP Macondo spill response was successful using “effective techniques” and “science-based decision protocols.” While many aspects of this response represented a mammoth feat and genuinely sincere efforts by many competent people, there are a large number of professionals, scientists, and industry leaders who have observed the Deepwater Horizon science-based cleanup protocols and their aftermath as resulting in enormous damage to the seabed, marine life, fisheries, wildlife, and the public’s health and area livelihoods, which mandates major changes in methodology. At minimum, the wide chasm in differing views suggests contrary facts that require independent investigation and reconciliation.
Using toxic pollutants to treat toxic pollutants [is] a primitive and counter- productive action that increases the toxicity by a factor of 10x or greater. … The detergent action provided by chemical dispersants … can act as a biocide by disrupting or lysing the tissues of biological organisms. … The effect of cell lysing
is to liquefy cell wall membranes, resulting in cell death.
To their credit, the plans expressed in the ICCOPR Report to Congress also emphasized: “The Interagency Committee is committed to expanding our knowledge and tools to meet future oil spill response challenges.” We welcome that open invitation and are committed to providing expanded knowledge, working in tandem with this national committee.
8. The CWA was weakened in 2006 by two Supreme Court decisions (2001 and 2006), which established precedents resulting in reduced enforcement of the law. The EPA and the Army Corps of Engineers, as a result of these court decisions, changed their policies and abandoned more than 500 Clean Water Act cases being pursued, which cast doubt on how to assess what bodies of water might fall under CWA protections. (See cleanwateraction.org article “How the Clean Water Act Was Weakened” at http://cleanwateraction.org/mediakit/overview-clean-water-restoration-act-2009.)
Oil spills may result in only temporary disruption to the company and industries that cause them, but they are permanent injuries for the rest of us. The purpose of the Clean Water Act is to protect us and future generations from irresponsible actions that do not take into account the long-term impacts.
The preapproval status bestowed upon Corexit, the immediate authorization of its deployment in response to the BP oil spill emergency, and finally, its use being an integral part of nationwide response planning (in which it is staged and ready for deployment in all US waters) are a clear violation of the Clean Water Act in many respects.
It is ironic that the penalties for an oil spill are partially calculated by counts. How many dead turtles? How many square miles of oil sheen? We, at LAEO, encourage open discussion with industry and regulatory agencies to review how the costs of recovery are calculated (the penalty). Penalties based on “quantity visually gone” encourage practices like the use of dispersants rather than incentivizing nontoxic solutions that completely remove the oil and all its toxic compounds.
In light of the above, a restoration and revitalization of the Clean Water Act is in order.
viii. LC 50. LC = lethal concentration. LC 50 is the concentration of a substance that is lethal to 50 percent of the test organisms in a specifed time period, typically 48 or 96 hours. (See also page 22, Toxicity Values chart.)
ix. lyse. To cause dissolution or destruction of cells by lysins. lysins. Antibodies or other agents that cause red blood cells or bacterial cells to break down.