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NCP Subpart J 40 CFR 300.910. A Case Study on Microblaze Craig Myers, OSC. Peaks Oil – Telluride, CO. April 1, 2008 (discovered) 2,500 gallons #2 Diesel Direct to wetland/perennial stream under snow cover High water result in severe oiling of plant species

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NCP Subpart J 40 CFR 300.910

A Case Study on Microblaze

Craig Myers, OSC


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Peaks Oil – Telluride, CO

  • April 1, 2008 (discovered)

  • 2,500 gallons #2 Diesel

  • Direct to wetland/perennial stream under snow cover

  • High water result in severe oiling of plant species

  • EPA not notified until April 14th (via news paper).


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Peaks Oil (con’t)

  • Duty OSC contacts PRP, resulting in NRC report #868033.

  • April 24th, EPA Enforcement receives a copy of the latest PRP report detailing response status.

    • Report, dated April 18th, details the use of Micro-Blaze by PRP’s sub contractor EnviroTech.

    • When asked, they admitted that the product was used w/o OSC consultation/approval.


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Peaks Oil (con’t)

  • EnviroTech insisted to the PRP that:

    • The PRP had only to notify the State of Colorado of the spill

    • Micro-Blaze is on EPA’s Product Schedule, no further approvals are necessary

  • PRP hired EnviroTech as an expert and did no further research to confirm any of this

  • CO Oil and Public Safety (UST) personnel had no issues with the PRP’s use of Micro-Blaze


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Note: As Required by EPA regulation: Disclaimer: “Micro-Blaze Emergency Spill Control is on the U.S. EPA’s NCP Product Schedule as a bioremediation agent. This listing does not mean the EPA approves, recommends, licenses, certifies, or authorizes the use of Micro-Blaze Emergency Liquid Spill Control on an oil discharge…

…may be authorized for use by (OSCs)…40 CFR 300.910

…note that listing…does not constitute approval, certification, authorization


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What is the Product Schedule?

  • Required by Section 311(d)(2)(G) of the CWA

    • Compiles chemicals and other agents that may be used to carry out the NCP, waters they may be used in, and quantities that may be used.

  • Listing in the schedule gives:

    • The RRT the power to pre-approve usage under certain conditions and in specific locations with “preauthorization plans” – 300.910(a)

    • The OSC the power, with concurrence/consultation of select RRT members, to approve the use “on the fly”. – 300.910(b)

      • EPA co-chair and State reps of States with jurisdiction over the effected or threatened waters: concurrence

      • US DOI and US DOC trustees: consultation

  • Not listed on the schedule? No approval can be granted…

    • Except by an OSC to prevent or “remove a hazard to human life.”

      • 300.910(d) – the only place the NCP states “human life”


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Subpart J applies only to water, right?

  • No – 300.900(b)

    • “…adjoining shorelines…activities that may effect natural resources belonging to, appertaining to, or under exclusive management of the United States…”


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What are “natural resources” in this case?

  • Natural resources – 300.5

    • Land, fish, wildlife, biota, water, groundwater drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States…any state or local government, any Indian Tribe, or if such resources are subject to a trust restriction on alienation, any member of an Indian Tribe.


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Use in Headwaters vs Main Streams

  • NCP and CWA 311 do not distinguish between them.

  • RRT’s responsibility to approve, or not, per 40 CFR 300.910


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What do we tell local agencies?

  • Always question salesmen that say EPA approves of any product – we don’t do that.

  • For oil response products, anything beyond mechanical recovery requires consultation with an OSC and subsequent RRT approval.

    • AFFF/AR-AFFF and other vapor suppression foams are considered to be used under 300.910 (d). It is EPA’s position that they won’t press a local agency for applying foam prior to contacting an OSC for approval.

    • EPA should be notified if foam is used on a spill that reaches/threatens water.


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But “they” say…

  • That (insert product name here) can be used in lieu of absorbents/dig-and-haul and disposal.

    • Yes, however…

      • May or may not be a violation of RCRA (soils)

        • Gasoline spills may require monitoring for ignitability and benzene levels (D001, D018 waste codes)

      • If on or near waters of the US or natural resources, it requires OSC/RRT approval.

  • Once I mix it in with the product that was on fire, I can discharge it to a POTW

    • Yes, however, you need the POTW’s approval first.


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Bioremediation Agent Effectiveness in soils

  • Requires

    • relatively neutral soil pH.

    • May require nitrogen and phosphate amendments, though these may be “built-in” to the agent

    • Faster with aeration/mechanical tilling

    • In dry areas, water addition may be required as well.

  • All depends on the agent selected (42 bio agents listed currently)


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Bioremedation Agents Other considerations

  • Some states limit/restrict addition of non-native bacteria/organic material to soils

    • May preclude/limit the use of bioremediation agents



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