Deepwater Horizon - A SILENT SPRING IN DEEP WATER PROPOSING...

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A SILENT SPRING IN DEEP WATER?: PROPOSING FRONT END REGULATION OF DISPERSANTS AFTER THE DEEPWATER HORIZON DISASTER CHRISTOPHER M. IAQUINTO* Abstract: The unprecedetited use of dispersants in response to the BP Deepwater Horizon blowout and subsequent explosion revealed the weaknesses of the current U.S. oil spill emergency response apparatus. The dearth of information regarding dispersant toxicity and effectiveness at various depths highlights the need to revisit the current procedures within the National Contingency Plan for responding to oil spill emer- gencies. In assessing various options, the experience of pesticide regula- tion is informative—a front-end regulatory framework like that employed in the Federal Insecticide, Fungicide, and Rodenticide Act could address many of the shortcomings of federal emergency spill response. Such a regulatory approach would ensure that information about dispersants is made available before their listing on the National Contingency Plan, rather than after their ultimate application. Given the risk for harm to human health and the environment from oil spills and subsequent dis- persant application, such an approach is necessary. INTRODUCTION President Obama labeled the BP Deepwater Horizon blowout and subsequent explosion on April 20, 2010 "the worst environ-mental disas- ter America has ever faced."! The disaster killed eleven individuals work- ing on the oil drilling platform, and caused the discharge of an estimated four million barrels of crude oil into the Gulf of Mexico.2 Roughly 1.84 million gallons of dispersants—an unparalleled amount^—^were used to * Editor in Chief, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2011-12. 1 Remarks by tiie President to the Nation on the BP Oil Spill (June 15, 2010), available ai . 2 NAT'L COMM'N ON THE BP DEEPWATER HORIZON OIL SPILL & OFFSHORE DRILLING, DEEP WATER: THE GULF OIL DISASTER AND THE FUTURE OF OFFSHORE DRILLING, at xi (2011) [hereinafter BP COMMISSION REPORT]. 3 Id. "Dispersants are chemicals that can be used to break up oil and speed its natural degradation." EPA, THE FEDERAL GOVERNMENT RESPONSE: DISPERSANT USE IN BP OIL SPILL (July, 2010), 419
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420 Environmental Affairs [Vol. 39:419 combat the released ou.* Neither the government nor BP had much in- formaüon concerning dispersant toxicity or the potenüal hazards result- ing from applying this quanüty of surface and subsurface dispersants.^ According to the Naüonal Commission on the BP Deepwater Ho- rizon Oil Spill and Offshore Drilling, dispersant applicaüon in response to this disaster is troubling for three reasons.6 Eirst, 1.84 million gallons of dispersants were applied, exceeding the amount used in any other spill cleanup.^ Second, dispersant use at the wellhead began without any significant testing of either dispersant efficacy or possible environ- mental consequences.8 Third, the federal government's pre-approved response plans allowed for
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