[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3661 Introduced in Senate (IS)]
111th CONGRESS
2d Session
S. 3661
To amend the Federal Water Pollution Control Act to ensure the safe and
proper use of dispersants in the event of an oil spill or release of
hazardous substances, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 28, 2010
Mr. Lautenberg (for himself, Ms. Mikulski, Mr. Kerry, and Mr. Cardin)
introduced the following bill; which was read twice and referred to the
Committee on Environment and Public Works
_______________________________________________________________________
A BILL
To amend the Federal Water Pollution Control Act to ensure the safe and
proper use of dispersants in the event of an oil spill or release of
hazardous substances, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Safe Dispersants Act''.
SEC. 2. USE OF DISPERSANTS UNDER NATIONAL CONTINGENCY PLAN.
Section 311(d) of the Federal Water Pollution Control Act (33
U.S.C. 1321(d)) is amended by adding at the end the following:
``(5) Dispersants used in accordance with national
contingency plan.--
``(A) Placement of dispersants on the national
contingency plan product schedule.--
``(i) In general.--No dispersant may be
used in a response to a discharge of oil or
hazardous substances unless the dispersant has
been listed by the Administrator on the
National Contingency Plan Product Schedule in
accordance with this subparagraph.
``(ii) Listing.--The Administrator may
list, or allow the continued listing of, a
dispersant on the National Contingency Plan
Product Schedule for determination by the
Federal On-Scene Coordinator, in consultation
with the Administrator and Regional Response
Team, and the National Response Team, as
appropriate, for use in response to a discharge
of oil or hazardous substances only if the
Administrator determines that--
``(I) the dispersant meets such
standards as shall be established by
the Administrator governing maximum
allowable toxicity and minimum
acceptable effectiveness;
``(II) the adverse effect from use
of the dispersant is less than the
adverse effect from allowing the
discharged oil or hazardous substance--
``(aa) to be dispersed by
natural or physical means;
``(bb) to degrade by
natural processes;
``(cc) to be removed by
technologically feasible
physical methods; or
``(dd) to undergo any
combination of the processes
described in items (aa) through
(cc); and
``(III) any such listing, or
decision to continue listing, meets
such other conditions as the
Administrator determines are necessary
to ensure the dispersant meets the
criteria described in subclauses (I)
and (II).
``(iii) Determination of adverse effect.--
In determining the adverse effect from the use
of a dispersant, the Administrator shall
consider--
``(I) acute, chronic, short- and
long-term health and environmental
effects of the dispersant or any
individual component of the dispersant
formulation;
``(II) additive or synergistic
effects of the dispersant in
combination with oil or hazardous
substances and other environmental
factors and components; and
``(III) persistence,
bioavailability, and bioaccumulation
potential.
``(B) Minimum data set on dispersants.--
``(i) In general.--The Administrator shall
promulgate regulations specifying the minimum
data set applicable to dispersants listed on
the National Contingency Plan Product Schedule
under subparagraph (A).
``(ii) Requirements.--The data set
specified under clause (i) shall--
``(I) include information necessary
and sufficient to determine the
potential for dispersants, or their
degradation products, both by
themselves and in combination with oil
or hazardous substances and other
environmental factors and components,
to persist or accumulate in, or create
or contribute to short- and long-term
adverse effects on--
``(aa) marine, estuarine,
and freshwater environments and
ecosystems, including surface,
subsurface, and benthic zones;
``(bb) representative forms
of marine, coastal estuarine,
and freshwater organisms,
including aquatic and
terrestrial species, including
birds;
``(cc) workers, volunteers,
and other individuals involved
in handling, storing,
transporting, applying,
treating, or disposing of the
dispersants or dispersant
wastes, or who may otherwise
come into direct contact with
the dispersants or dispersant
wastes before, during, or after
the application of the
dispersants; and
``(dd) individuals in or
near areas in which dispersants
are being handled, stored,
transported, applied, treated,
or disposed of, or who may
otherwise be reasonably
expected to be exposed to the
dispersants;
``(II) include information on the
dispersants and their uses, including
on--
``(aa) individual
ingredients of the dispersants;
``(bb) the combination of
the dispersants with each type
of oil or hazardous substance
with which the dispersants may
reasonably be expected to be
used;
``(cc) the efficacy of the
dispersant under different
conditions of use (including
the oil or hazardous substance
type, temperature, salinity,
and type of environmental
media, such as open sea, rocky
shoreline, rocky or sandy
substrates, or marsh grasses),
and the optimal condition for
use; and
``(dd) the efficacy of the
dispersant at different use
concentrations and the most
effective application rate; and
``(III) be sufficient to assist the
Administrator in determining--
``(aa) whether the
combination of each dispersant
and each relevant type of oil
or hazardous substance can
increase or decrease the
persistence, bioaccumulation
potential, or toxicity relative
to either the dispersant or oil
or hazardous substance alone;
``(bb) the potential for
dispersant components to
persist or accumulate in the
environment or biota, or create
or contribute to, short- and
long-term adverse effects under
any scale or manner of
application, including in
worst-case situations; and
``(cc) whether and under
what circumstances use of the
dispersant would cause less
harm to health and the
environment than responding to
a discharge of oil or hazardous
substances without use of the
dispersant.
``(C) Disclosure of dispersant ingredients and
safety information.--
``(i) Health and safety information.--The
Administrator shall consider health and safety
information for a dispersant listed for use
under the National Contingency Plan Product
Schedule to mean information from any study of
any effect of a dispersant (or any
constituent), either alone or in combination
with oil or a hazardous substance, on health,
the environment, or both, including--
``(I) underlying data and
epidemiological studies;
``(II) studies of occupational
exposure to a chemical substance or
mixture;
``(III) toxicological, clinical,
and ecological studies of a chemical
substance or mixture;
``(IV) the specific chemical
identities of the dispersant and
constituents of the dispersant; and
``(V) any test performed pursuant
to this title.
``(ii) Availability of information.--
Notwithstanding any other provision of law, the
Administrator shall make available to the
public--
``(I) all health and safety
information for the chemical
dispersant;
``(II) the concentrations of all
ingredients of the dispersant, if the
Administrator determines that the
public availability of that information
is necessary to prevent substantial
endangerment to human health or the
environment or is otherwise in the
public interest, taking into account
the needs of responders, local
residents, medical personnel, and
researchers engaged in monitoring or
otherwise studying the effects of the
dispersant or of discharges of oil in
which the chemical dispersant is used;
and
``(III) information on listed
dispersants that the Administrator is
required to disclose under subclause
(II) or (III), unless the information
is protected from disclosure under
section 552(b)(4) of title 5, United
States Code.''.
SEC. 3. DISPERSANT HEALTH AND ENVIRONMENTAL IMPACT STUDY.
(a) Study.--Not later than 45 days after the date of enactment of
this Act, the Administrator of the Environmental Protection Agency
(referred to in this Act as the ``Administrator'') shall initiate a
study evaluating the adequacy of existing capabilities and legal
authorities of the Federal Government to make informed decisions
regarding the health and environmental impacts of dispersants placed on
the National Contingency Product Schedule under section 311 of the
Federal Water Pollution Control Act (33 U.S.C. 1321).
(b) Minimum Elements of the Study.--
(1) In general.--The study shall include an assessment of
the availability of information necessary to evaluate the risks
and impacts to human health and the environment, including
acute and chronic risks, from the use of dispersants, other
chemicals, and other spill-mitigating substances, if any, that
may be used to carry out the National Contingency Plan,
including an assessment of such risks and impacts.
(2) Minimum evaluation.--At a minimum, the study shall
evaluate--
(A) the availability of, and the advisability of
requiring additional information that is necessary and
sufficient to determine the potential for, dispersants,
or their degradation products, both by themselves and
in combination with oil or hazardous substances and
other environmental factors and components, to persist
or accumulate in, or create or contribute to short- and
long-term adverse effects on--
(i) workers, volunteers, and other
individuals involved in handling, storing,
transporting, applying, treating, or disposing
of the dispersants or dispersant wastes, or who
may otherwise come into direct contact with
dispersants or dispersant wastes before,
during, or after the application of the
dispersants;
(ii) individuals in or near areas in which
dispersants are being handled, stored,
transported, applied, treated, or disposed of,
or who may otherwise be reasonably expected to
be exposed to the dispersants;
(iii) marine, estuarine, and freshwater
environments and ecosystems, including surface,
subsurface, and benthic zones; and
(iv) representative forms of marine,
coastal estuarine, and freshwater organisms,
including aquatic, soil- and sediment-dwelling,
and terrestrial species, including birds;
(B) the availability of, and the advisability of
requiring additional information regarding, the
dispersants and their uses, including information on--
(i) individual ingredients of the
dispersants;
(ii) the combination of the dispersants
with each type of oil or hazardous substance
with which the dispersants may reasonably be
expected to be used;
(iii) the health and environmental impacts
and efficacy of the dispersant under different
conditions of use (including oil or hazardous
substance type, temperature, pressure,
salinity, and type of environmental media (such
as open sea, rocky shoreline, rocky or sandy
substrates, corals or marsh grasses)), and the
optimal condition for use;
(iv) the health and environmental impacts
and efficacy of the dispersant at different use
concentrations and the most effective
application rate and quantity;
(v) whether the combination of each
dispersant and each relevant type of oil or
hazardous substance can increase or decrease
the persistence, bioaccumulation potential, or
toxicity relative to either the dispersant or
oil or hazardous substance alone;
(vi) the potential for dispersant
components to persist or accumulate in the
environment or biota, or create or contribute
to short- and long-term adverse effects under
any scale or manner of application, including
in worst-case situations; and
(vii) whether and under what circumstances
use of the dispersant would cause less adverse
effects to health and the environment than
responding to a discharge of oil or hazardous
substances without use of the dispersant; and
(C) an assessment of the adequacy of existing
Federal laws (including regulations) to protect human
health and the environment from the potential risks and
impacts from the toxicity of dispersants placed on the
National Contingency Product Schedule.
(c) Consultation.--The Administrator shall conduct the study under
this section in consultation with such other Federal departments and
agencies as the Administrator determines to be appropriate.
(d) Notice and Comment.--The Administrator shall provide for public
notice of, and not fewer than 30 days of public comment on, the draft
study.
(e) Deadline.--The Administrator shall complete the study under
this section not later than 180 days after the date of enactment of
this Act.
SEC. 4. REPORT TO CONGRESS.
(a) Report.--Not later than 90 days after the date of completion of
the study under section 3, the Administrator shall submit to Congress a
report that--
(1) describes the results of the study; and
(2) makes specific recommendations concerning potential
improvements to the existing capabilities and legal authorities
of the Federal Government to make informed decisions regarding
the health and environmental impacts of dispersants placed on
the National Contingency Product Schedule.
(b) Contents.--The report shall, at a minimum, include--
(1) a description of the results of the study conducted
under section 3;
(2) an identification of the gaps in available information
regarding the health and environmental impacts of dispersants
on, or being considered for placement on, the National
Contingency Product Schedule;
(3) recommendations for addressing the gaps in relevant
information, which could include research, technology
development, and demonstration among the Federal agencies, or
in cooperation with industry, institutions of higher education,
research institutions, or State governments; and
(4) recommendations for any statutory or regulatory changes
necessary to ensure the safety of dispersants currently on the
National Contingency Product Schedule, or being considered for
future placement on the National Contingency Product Schedule.
SEC. 5. REVISION OF THE NATIONAL CONTINGENCY PLAN-SUBPART J.
(a) In General.--Not later than 270 days after the date of
enactment of this Act, the Administrator shall determine whether to
propose revisions to subpart J of the National Contingency Plan
prepared under section 311(d) of the Federal Water Pollution Control
Act (33 U.S.C. 1321(d)) and, as necessary, the regulations required
under section 311(j) of that Act (33 U.S.C. 1321(j)).
(b) Proposed Revisions.--If the Administrator determines that
revisions described in subsection (a) are necessary to ensure the
effectiveness and safety of dispersants, the Administrator shall
propose the revisions not later than 180 days after the date on which
the Administrator makes the determination under subsection (a).
(c) Consideration of Report.--The revisions proposed under
subsection (b) shall take into account the recommendations in the
report to Congress required under section 4.
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