Environmental, public health and fishing groups in Alaska and the Gulf Coast filed a lawsuit against U.S. EPA yesterday to prod the agency to write new rules governing the use of oil-dispersing chemicals.

Citing accelerating oil and gas drilling activity in their regions, the groups want EPA to perform more robust tests on the toxicity and effectiveness of dispersants in specific water bodies.

EPA publishes a national contingency plan for oil spills that lists dispersants that are either authorized or eligible to be pre-authorized for use. The lawsuit accuses the agency of an "ongoing failure" to include details in the plan about the water bodies or quantities in which the chemicals can be safely deployed, as required under the Clean Water Act.

The lawsuit filed in U.S. District Court for the District of Columbia calls for the court to vacate dispersant listings of the last six years and order EPA to publish a product schedule that includes all the required information. Earthjustice filed the lawsuit on behalf of the Louisiana Shrimp Association, the Florida Wildlife Federation, the Gulf Restoration Network, the Louisiana Environmental Action Network, Alaska-based Cook Inletkeeper, Alaska Community Action on Toxics, the Waterkeeper Alliance and the Sierra Club.

"We're disappointed that the agency doesn't seem to understand the widespread public urgency to initiate this rulemaking process," said Jill Mastrototaro, director of the Sierra Club's Gulf Coast Protection Campaign. "If a spill or blowout happened tomorrow in the Gulf of Mexico, or any U.S. water for that matter, any dispersant that is used would not necessarily be safe for the waters, ecosystems, response workers or nearby communities."

The groups first notified EPA of their intent to sue in October 2010 (E&ENews PM, Oct. 13, 2010), not long after the Deepwater Horizon exploded, setting off an 87-day spill. They fear a repeat of what happened then: 1.8 million gallons of oil dispersants used in the Gulf of Mexico, even as scientists raised sharp questions about the strategy.

Dispersants break up oil into tiny droplets that sink below the ocean surface, effectively keeping it out of sensitive coastal marshes and enabling it to be consumed by bacteria and other marine organisms. Many experts fear what effect the accumulation of the oil and chemicals in the underwater ecosystem might have on the food chain and whether the overall approach does more harm than good.

Forced to rely on its own incomplete data during the spill, EPA waffled over whether to allow the dispersant use to continue and engaged in what amounted to a shoving match with oil giant BP PLC (Greenwire, April 22, 2011). EPA did not respond to a request for comment in time for publication.

EPA Administrator Lisa Jackson has said the agency needs to learn more about the use and long-term impacts of dispersants, telling the presidential commission that investigated the spill that she was "committed to revisiting" the dispersant listing process Greenwire, Sept. 28, 2010).

Current federal requirements allow dispersant manufacturers to submit toxicity data in advance of their chemical's listing on the national contingency plan product schedule. That is a prerequisite to pre-authorization of their use in fighting spills. Without a pre-authorization plan in place, the on-scene coordinator may authorize a dispersant's use, provided it is listed.

In those scenarios, the groups argue that failure to include more detail on the product schedule leads to uninformed and potentially dangerous decisionmaking.

"EPA's failure to obtain, and in turn include on the NCP Product Schedule, this statutorily-mandated information has seriously hobbled emergency response to oil spills, most recently in the Deepwater Horizon oil disaster," the lawsuit said.