I 

112TH CONGRESS 

1ST SESSION H. R. 3562 

To amend the Federal Water Pollution Control Act with respect to the 

use of dispersants, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 5, 2011 

Mr. NADLER (for himself and Mr. BISHOP of New York) introduced the following bill; which was referred to the Committee on Transportation and 

Infrastructure, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in 

each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Federal Water Pollution Control Act with 

respect to the use of dispersants, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ban Toxic Dispersants 

5 Act of 2011’’. 

6 SEC. 2. NATIONAL CONTINGENCY PLAN. 

7 (a) CONTENTS.—Section 311(d)(2)(G) of the Federal 

8 Water Pollution Control Act (33 U.S.C. 1321(d)(2)(G)) 


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1 is amended by striking the period at the end and inserting 

2 the following: ‘‘, except that a dispersant, other chemical, 

3 or other spill mitigating device or substance that is not 

4 included on the schedule may be used in carrying out the 

5 Plan only if the dispersant, other chemical, or other spill 

6 mitigating device or substance is proposed to be included 

7 on the schedule.’’. 

8 (b) SCHEDULE FOR USE OF DISPERSANTS, OTHER

9 CHEMICALS, AND OTHER SPILL MITIGATING DEVICES

10 AND SUBSTANCES.—Section 311(d) of the Federal Water 

11 Pollution Control Act (33 U.S.C. 1321(d)) is amended by 

12 adding at the end the following: 

13 ‘‘(5) SCHEDULE FOR USE OF DISPERSANTS, 

14 OTHER CHEMICALS, AND OTHER SPILL MITIGATING

15 DEVICES AND SUBSTANCES.— 

16 ‘‘(A) RULEMAKING.—Not later than 2 

17 years after the date of enactment of this para18 graph, the President, acting through the Ad19 ministrator, after providing notice and an op20 portunity for public comment, shall issue a re21 vised regulation for the development of the 

22 schedule for the use of dispersants, other 

23 chemicals, and other spill mitigating devices 

24 and substances developed under paragraph 

25 (2)(G) in a manner that is consistent with the 


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1 requirements of this paragraph, and shall mod2 ify the existing schedule to take into account 

3 the requirements of the revised regulation. 

4 ‘‘(B) SCHEDULE LISTING REQUIRE5 MENTS.—In issuing the regulation under sub6 paragraph (A), the Administrator shall— 

7 ‘‘(i) with respect to dispersants, other 

8 chemicals, and other spill mitigating sub9 stances included or proposed to be included 

10 on the schedule under paragraph (2)(G)— 

11 ‘‘(I) establish minimum toxicity 

12 and efficacy testing criteria, taking 

13 into account the results of the study 

14 carried out under subparagraph (E); 

15 ‘‘(II) provide for testing or other 

16 verification (independent from the in17 formation provided by an applicant 

18 seeking the inclusion of such dispers19 ant, chemical, or substance on the 

20 schedule) related to the toxicity and 

21 effectiveness of such dispersant, chem22 ical, or substance; 

23 ‘‘(III) establish protocols for the 

24 application of any such dispersant, 

25 chemical, or substance, including— 


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1 ‘‘(aa) application conditions; 

2 ‘‘(bb) the quantity thresh3 olds for which approval by the 

4 Administrator is required; 

5 ‘‘(cc) the criteria to be used 

6 to develop the appropriate max7 imum quantity of any such dis8 persant, chemical, or substance 

9 that the Administrator deter10 mines may be used, both on a 

11 daily and cumulative basis; and 

12 ‘‘(dd) a ranking, by geo13 graphic area, of any such dis14 persant, chemical, or substance 

15 based on a combination of its ef16 fectiveness for each type of oil 

17 and its level of toxicity; 

18 ‘‘(IV) establish a requirement 

19 that the volume of oil or hazardous 

20 substance discharged, and the volume 

21 and location of any such dispersant, 

22 chemical, or substance used, be meas23 ured and made publicly available on a 

24 daily basis, including on the Internet; 


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1 ‘‘(V) require the public disclosure 

2 of all ingredients, including the chem3 ical and common name of such ingre4 dients, contained in any such dispers5 ant, chemical, or substance prior to 

6 the use of such dispersant, chemical, 

7 or substance; and 

8 ‘‘(VI) in addition to existing au9 thority, expressly provide a mecha10 nism for the delisting of any such dis11 persant, chemical, or substance that 

12 the Administrator determines poses a 

13 significant risk or impact to human 

14 health, water quality, the environ15 ment, or any other factor the Admin16 istrator determines appropriate; and 

17 ‘‘(ii) with respect to other spill miti18 gating devices included or proposed to be 

19 included on the schedule under paragraph 

20 (2)(G)— 

21 ‘‘(I) require the manufacturer of 

22 such device to carry out a study of the 

23 risks and effectiveness of the device 

24 according to guidelines developed and 

25 published by the Administrator; and 


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1 ‘‘(II) in addition to existing au2 thority, expressly provide a mecha3 nism for the delisting of any such de4 vice based on any information made 

5 available to the Administrator that 

6 demonstrates that such device poses a 

7 significant risk or impact to human 

8 health, water quality, the environ9 ment, or any other factor the Admin10 istrator determines appropriate. 

11 ‘‘(C) MINIMUM TOXICITY CRITERIA.—In 

12 establishing minimum toxicity criteria under 

13 subparagraph (B)(i)(I), the Administrator, as 

14 appropriate, shall comply with the requirements 

15 of section 121(d) of the Comprehensive Envi16 ronmental Response, Compensation, and Liabil17 ity Act of 1980 (42 U.S.C. 9621(d)). 

18 ‘‘(D) DELISTING.—In carrying out sub19 paragraphs (B)(i)(VI) and (B)(ii)(II), the Ad20 ministrator, after posting a notice in the Fed21 eral Register and providing an opportunity for 

22 public comment, shall initiate a formal review 

23 of the potential risks and impacts associated 

24 with a dispersant, chemical, substance, or deVerDate Mar 15 2010 02:01 Dec 06, 2011 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3562.IH H3562

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1 vice prior to delisting the dispersant, chemical, 

2 substance, or device. 

3 ‘‘(E) STUDY.— 

4 ‘‘(i) IN GENERAL.—Not later than 3 

5 months after the date of enactment of this 

6 paragraph, the Administrator, in coordina7 tion with the Agency for Toxic Substances 

8 and Disease Registry, shall initiate a study 

9 of the potential risks and impacts to 

10 human health, water quality, the environ11 ment, or any other factor the Adminis12 trator determines appropriate, including 

13 acute and chronic risks, from the use of 

14 dispersants, other chemicals, and other 

15 spill mitigating substances, if any, that 

16 may be used to carry out the National 

17 Contingency Plan, including an assessment 

18 of such risks and impacts— 

19 ‘‘(I) on a representative sample 

20 of biota and types of oil from loca21 tions where such dispersants, chemi22 cals, or substances may potentially be 

23 used; 

24 ‘‘(II) on human health, including 

25 factors relating to— 


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1 ‘‘(aa) individuals most likely 

2 to be exposed to such disper3 sants, chemicals, or substances; 

4 and 

5 ‘‘(bb) the pathways of expo6 sure to such dispersants, chemi7 cals, or substances, including di8 rect contract, ingestion, and in9 halation; 

10 ‘‘(III) that result from any by11 products created from the use of such 

12 dispersants, chemicals, or substances. 

13 ‘‘(ii) INFORMATION FROM MANUFAC14 TURERS.— 

15 ‘‘(I) IN GENERAL.—In conjunc16 tion with the study authorized by 

17 clause (i), the Administrator shall de18 termine the requirements for manu19 facturers of dispersants, chemicals, or 

20 substances to evaluate the potential 

21 risks and impacts to human health, 

22 water quality, the environment, or any 

23 other factor the Administrator deter24 mines appropriate, including acute 

25 and chronic risks, associated with the 


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1 use of the dispersants, chemicals, or 

2 substances and any byproducts gen3 erated by such use and to provide the 

4 details of such evaluation as a condi5 tion for listing on the schedule, or ap6 proving for use under this section, ac7 cording to guidelines developed and 

8 published by the Administrator. 

9 ‘‘(II) MINIMUM REQUIREMENTS

10 FOR EVALUATION.—In carrying out 

11 this clause, the Administrator shall re12 quire a manufacturer to include— 

13 ‘‘(aa) information on the 

14 types of oils for which and loca15 tions where such dispersants, 

16 chemicals, or substances may po17 tentially be used; and 

18 ‘‘(bb) if appropriate, an as19 sessment of the impacts from 

20 subsea use of the dispersant, 

21 chemical, or substance, including 

22 the potential long term effects of 

23 such use on water quality and 

24 the environment. 

25 ‘‘(F) PERIODIC REVISIONS.— 


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1 ‘‘(i) IN GENERAL.—Not later than 5 

2 years after the date of the issuance of the 

3 regulation under this paragraph, and on an 

4 ongoing basis thereafter (and at least once 

5 every 5 years), the Administrator shall re6 view the schedule for the use of disper7 sants, other chemicals, and other spill miti8 gating devices and substances that may be 

9 used to carry out the National Contingency 

10 Plan and update or revise the schedule, as 

11 necessary, to ensure the protection of 

12 human health, water quality, the environ13 ment, and any other factor the Adminis14 trator determines appropriate. 

15 ‘‘(ii) EFFECTIVENESS.—The Adminis16 trator shall ensure, to the maximum extent 

17 practicable, that each update or revision to 

18 the schedule increases the minimum effec19 tiveness necessary for listing a dispersant, 

20 other chemical, or other spill mitigating de21 vice or substance on the schedule. 

22 ‘‘(G) APPROVAL OF USE AND APPLICATION

23 OF DISPERSANTS.— 

24 ‘‘(i) IN GENERAL.—In issuing the reg25 ulation under subparagraph (A), the AdVerDate Mar 15 2010 02:01 Dec 06, 2011 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3562.IH H3562

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1 ministrator shall require the approval of 

2 the Federal On-Scene Coordinator, in co3 ordination with the Administrator, for all 

4 uses of a dispersant, other chemical, or 

5 other spill mitigating substance in any re6 moval action, including— 

7 ‘‘(I) any such dispersant, chem8 ical, or substance that is included on 

9 the schedule developed pursuant to 

10 this subsection; and 

11 ‘‘(II) any dispersant, chemical, or 

12 other substance that is included as 

13 part an approved area contingency 

14 plan or response plan developed under 

15 this section. 

16 ‘‘(ii) REGULATIONS.—Any provision 

17 of section 300.910 of title 40, Code of 

18 Federal Regulations, that is inconsistent 

19 with this paragraph shall have no force or 

20 effect. 

21 ‘‘(6) FEES.— 

22 ‘‘(A) GENERAL AUTHORITY AND FEES.— 

23 Subject to subparagraph (B), the Administrator 

24 shall establish a schedule of fees to be collected 

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1 ical, or spill mitigating substance or device to 

2 offset the costs of the Administrator associated 

3 with evaluating the use of the dispersant, chem4 ical, substance, or device in accordance with 

5 this subsection and listing the dispersant, chem6 ical, substance, or device on the schedule under 

7 paragraph (2)(G). 

8 ‘‘(B) LIMITATION ON COLLECTION.—No 

9 fee may be collected under this subsection un10 less the expenditure of the fee to pay the costs 

11 of activities and services for which the fee is im12 posed is provided for in advance in an appro13 priations Act. 

14 ‘‘(C) FEES CREDITED AS OFFSETTING

15 COLLECTIONS.— 

16 ‘‘(i) IN GENERAL.—Notwithstanding 

17 section 3302 of title 31, United States 

18 Code, any fee authorized to be collected 

19 under this paragraph shall— 

20 ‘‘(I) be credited as offsetting col21 lections to the account that finances 

22 the activities and services for which 

23 the fee is imposed; 

24 ‘‘(II) be available for expenditure 

25 only to pay the costs of activities and 


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1 services for which the fee is imposed, 

2 including all costs associated with col3 lecting such fees; and 

4 ‘‘(III) remain available until ex5 pended. 

6 ‘‘(ii) CONTINUING APPROPRIATIONS.— 

7 The Administrator may continue to assess, 

8 collect, and spend fees established under 

9 this section during any period in which the 

10 funding for the Environmental Protection 

11 Agency is provided under an Act providing 

12 continuing appropriations in lieu of the 

13 Administration’s regular appropriations. 

14 ‘‘(iii) ADJUSTMENTS.—The Adminis15 trator shall adjust the fees established by 

16 subparagraph (A) periodically to ensure 

17 that each of the fees required by subpara18 graph (A) is reasonably related to the Ad19 ministrator’s costs, as determined by the 

20 Administrator, of performing the activity 

21 for which the fee is imposed.’’. 

22 SEC. 3. TEMPORARY MORATORIUM ON APPROVAL OF USE 

23 OF DISPERSANTS. 

24 (a) IN GENERAL.—Subject to subsection (b), the Ad25 ministrator of the Environmental Protection Agency may 


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1 not approve the use of a dispersant under section 311(d) 

2 of the Federal Water Pollution Control Act of 1990 (33 

3 U.S.C. 1321(d)), and shall withdraw any approval of such 

4 use made before the date of enactment of this Act, until 

5 the date on which the rulemaking and study required by 

6 subparagraphs (A) and (E) of section 311(d)(5) of such 

7 Act (as added by this Act) are complete. 

8 (b) CONDITIONAL APPROVAL.— 

9 (1) IN GENERAL.—The Administrator may ap10 prove the use of a dispersant under section 311(d) 

11 of such Act (33 U.S.C. 1321(d)) that is included or 

12 proposed to be included on the schedule under sec13 tion 311(d)(2)(G) of such Act (33 U.S.C. 

14 1321(d)(2)(G)) for the period of time before the 

15 date on which the rulemaking and study required by 

16 subparagraphs (A) and (E) of section 311(d)(5) of 

17 such Act (as added by this Act) are complete if the 

18 Administrator determines that such use will not 

19 have a negative impact on human health, water 

20 quality, the environment, or any other factor the Ad21 ministrator determines appropriate. 

22 (2) SUNSET.—An approval issued under para23 graph (1) shall cease to be effective after the last 

24 day of the 2-year period beginning on the date of en25 actment of this Act. 


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1 (c) INFORMATION.—In approving the use of a dis2 persant under subsection (b), the Administrator may re3 quire the manufacturer of the dispersant to provide such 

4 information as the Administrator determines necessary to 

5 satisfy the requirements of that subsection. 

Æ 


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