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Use of chemical or biological agents in response to oil discharges must be authorized by the OSC in accordance with the provisions of this section.
(a) Use of agents identified on the NCP Product Schedule or use of burning agents on oil discharges addressed by a preauthorization plan. Area Committees and RRTs shall address, as part of their planning activities, whether preauthorization of the use of chemical and biological agents listed on the NCP Product Schedule or the use of burning agents on certain oil discharges is appropriate. Area Committees and RRTs shall, as appropriate, include applicable approved preauthorization plans in ACPs and RCPs. When a preauthorization plan is approved in advance for the use of certain agents under specified discharge situations, then the OSC may authorize the use of agents listed on the NCP Product Schedule, or the use of burning agents, for the purpose for which they were specifically listed without obtaining the incident-specific concurrences and without the natural resource trustees consultations described in paragraph (b) of this section.
(1) Preauthorization plan development. For discharge situations identified where such agents may be used, the preauthorization plan must, at a minimum, specify limits for the quantities and the duration of use, and use parameters for water depth, distance to shoreline, and proximity to populated areas. In meeting the provisions of this paragraph, preauthorization plans should document how regional factors are addressed including likely sources and types of oil that might be discharged, various potential discharge scenarios, the existence and location of environmentally sensitive resources or restricted areas that might be impacted by discharged oil, and logistical factors including inventory, storage locations and manufacturing capability of available agents, availability of equipment needed for agent use, availability of adequately trained operators, and means to monitor agent use in the environment. Preauthorization plans are to be developed by the Area Committees or the RRT in consultation with the Area Committee(s).
(2) Preauthorization plan approval. The EPA representative to the RRT, the Department of Commerce and the Department of the Interior natural resource trustees and, as appropriate the RRT representative from the state(s) with jurisdiction over waters and adjoining shorelines within the preauthorization plan area shall review and either approve, approve with modification, or disapprove the preauthorization plans. The Area Committees and RRTs shall address the withdrawal of approval from a preauthorization plan, and the RRT shall notify the NRT of the status of the preauthorization plan within 30 days from any such withdrawal.
(3) Preauthorization plan reviews. The RRT in consultation with the Area Committee(s) must review, and revise, as needed, approved preauthorization plans. These reviews must be conducted following a regular timeframe, established by the RRT and documented in the plan, to address changes that may impact the conditions under which the use of chemical and biological agents have been preauthorized. Reviews must also be conducted in any affected region, at a minimum, after a major discharge or after a Spill of National Significance (SONS) relevant to the preauthorization plan area; to address revisions of the NCP Product Schedule impacting chemical or biological agents that may be individually listed within a preauthorization plan; and to reflect new listings of threatened and/or endangered species applicable to the preauthorization plan area. The EPA RRT representative, the Department of Commerce and Department of the Interior natural resource trustees, and the RRT representative from the state(s) with jurisdiction over the waters of the area to which a preauthorization plan applies shall review and either approve, approve with modification, or disapprove any revisions to the preauthorization plans.
(b) Use of agents identified on the NCP Product Schedule or use of burning agents on oil discharges not addressed by a preauthorization plan. For discharge situations that are not addressed by a preauthorization plan developed pursuant to paragraph (a) of this section, the OSC may authorize the use of chemical or biological agents identified on the NCP Product Schedule on an oil discharge, or the use of burning agents, for the specific purpose for which they were listed with the concurrence of the EPA RRT representative and, as appropriate, the concurrence of the RRT representatives from the state(s) with jurisdiction over the waters and adjoining shorelines threatened by the release or discharge, and in consultation with the Department of Commerce and Department of the Interior natural resource trustees. In meeting the provisions of this paragraph, the OSC must consider and document for their authorization request to the RRT, at a minimum, the parameters for the use of agents including the quantities requested to be authorized, the duration of use, the depth of water, the distance to shoreline and proximity to populated areas, and should consider and document factors such as environmentally sensitive resources or restricted areas that might be impacted, agent inventory and storage locations, agent manufacturing capability, availability of equipment needed for agent use, availability of adequately trained operators and appropriate means to monitor agent use in the environment.
(c) [Reserved]
(d) Temporary exception. In circumstances to prevent or substantially reduce an imminent threat to human life that cannot be immediately addressed by other procedures or provisions of the NCP, the OSC may authorize the provisional use of any chemical or biological agent, whether it is identified or not on the NCP Product Schedule, without obtaining the concurrence of the EPA RRT representative and, as appropriate, the RRT representatives from the state(s) with jurisdiction over the waters and adjoining shorelines threatened by the release or discharge, and without consultation with the Department of Commerce and the Department of the Interior natural resource trustees. This exception shall not be used as a substitute for compliance with §300.150 of this part, including the use of personal protective equipment, or when there is sufficient time to seek authorization in accordance with paragraphs (a) or (b) of this section. If an agent is authorized for use pursuant to this paragraph, the OSC shall notify as soon as possible the EPA RRT representative and as appropriate, the RRT representatives from the affected state(s) and the Department of Commerce and Department of the Interior natural resource trustees. The OSC shall document the circumstances and the reasons for use of the agent authorized pursuant to this paragraph. Agent use for individual circumstances under this exception shall be in accordance with paragraphs (a) or (b) of this section no later than 24 hours after initial application.
(e) Prohibited agents or substances. The OSC may not authorize the use of the following:
(1) Sinking agents, or any other chemical agent, biological agent, or any substance that is used to directly sink the oil to the bottom of a water body.
(2) [Reserved]
(f) Storage and use of agents listed on the NCP Product Schedule. (1) The OSC may authorize for use only products listed on the NCP Product Schedule that are documented and certified by the responsible party or its representative to have been stored under the conditions provided by the submitter under §300.915(a)(6), and whose date of use does not exceed the expiration date listed on the container's label unless otherwise specified for expired products as provided in §300.910(f)(2), at the time of the incident.
(2) The OSC may authorize for use products listed on the NCP Product Schedule that exceed their expiration date after the responsible party or its representative documents and certifies that the expired product has been stored under the conditions provided by the submitter under §300.915(a)(6) and still meets the applicable efficacy and toxicity listing provisions under §300.915, based on testing of representative samples within the previous 12 months.
(g) Supplemental testing, monitoring, and information. The RRT may require, for both planning and response, including authorization of use, supplemental toxicity and efficacy testing, or submission of available data and information that addresses site, area, and ecosystem-specific concerns relative to the use of any chemical or biological agent. The product manufacturer or responsible party shall provide, upon request of the RRT or OSC, additional monitoring or testing data and information to inform chemical or biological agent use decisions specific to a response.
(h) Recovery of chemical agents and other substances from the environment. The responsible party shall ensure that removal actions adequately contain, collect, store, and dispose of chemical agents and other substances that are to be recovered from the environment, unless otherwise directed by the OSC. Chemical agents and other substances to be recovered include solidifiers, surface washing agents, and sorbents. The OSC should, at a minimum, consider factors such as the safety of response personnel and harm to the environment in making determinations pursuant to this paragraph.
(i) Reporting of agent use. (1) The authorizing OSC shall provide the RRT the following information on chemical and biological agents used in response to an oil discharge: product name, product category, quantity and concentrations used, duration of use, location(s) of use, any available data collected, and any available analyses of efficacy and environmental effects. This information must be provided within 30 days of completion of agent use. This information may be submitted in accordance with the OSC reporting provisions under §300.165 of this part, as applicable, subject to the 30-day timing requirement.
(2) In support of sections 300.135(n) and 300.155(a) and (b) of this part, the authorizing OSC shall provide for notification to the public, updated during a response as appropriate, the following information on chemical and biological agents used in response to an oil discharge: product name, product category, quantity and concentrations used, duration of use, and location(s) of use.
[88 FR 38333, June 12, 2023]