I 

111TH CONGRESS 

2D SESSION H. R. 5608 

To amend the Federal Water Pollution Control Act and the Outer Continental 

Shelf Lands Act to improve oil spill response plans, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 25, 2010 

Mr. MARKEY of Massachusetts introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Natural Resources, 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 and 

the Outer Continental Shelf Lands Act to improve oil 

spill response plans, 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 ‘‘Better Oil Spill Re5 sponse Plan Act of 2010’’. 


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1 SEC. 2. WORST CASE DISCHARGES. 

2 Section 311(d) of the Federal Water Pollution Con3 trol Act (33 U.S.C. 1321(d)) is amended by adding at the 

4 end the following: 

5 ‘‘(5) WORST CASE DISCHARGES.—Not later 

6 than 180 days after the date of enactment of this 

7 paragraph, and every 5 years thereafter, the Presi8 dent shall publish and provide to each Area Com9 mittee established under subsection (j)(4) an esti10 mate of the worst case discharges, including sub11 surface discharges, that are possible in each area de12 scribed in an Area Contingency Plan under sub13 section (j)(4)(C)(ii), based on the oil and gas explo14 ration, development, and production activities that 

15 are being conducted or are planned to be conducted 

16 at various locations and depths in each area.’’. 

17 SEC. 3. REVISION OF NATIONAL CONTINGENCY PLAN. 

18 (a) IN GENERAL.—Not later than 270 days after the 

19 date of enactment of this Act, the President shall revise 

20 the National Contingency Plan prepared under section 

21 311(d) of the Federal Water Pollution Control Act (33 

22 U.S.C. 1321(d)) and, as necessary, the regulations re23 quired under section 311(j) of such Act (33 U.S.C. 

24 1321(j)). Such revisions shall take into account the fol25 lowing: 


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1 (1) The adequacy of the National Contingency 

2 Plan in place at the time of the explosion involving 

3 the mobile offshore drilling unit Deepwater Horizon 

4 to respond to the volume, source, and duration of 

5 the discharge caused by that explosion. 

6 (2) Any findings and options related to the Na7 tional Contingency Plan made by the National Com8 mission on the BP Deepwater Horizon Oil Spill and 

9 Offshore Drilling established by the President by 

10 Executive Order 13543 (75 Fed. Reg. 29397). 

11 (3) The estimate of the worst case discharges 

12 published under section 311(d)(5) of such Act (as 

13 added by section 2 of this Act). 

14 (b) REVISIONS AND AMENDMENTS.—Section 

15 311(d)(3) of such Act (33 U.S.C. 1321(d)(3)) is amended 

16 to read as follows: 

17 ‘‘(3) REVISIONS AND AMENDMENTS.—The 

18 President— 

19 ‘‘(A) shall revise or otherwise amend the 

20 National Contingency Plan whenever the esti21 mate of the worst case discharges published 

22 under paragraph (5) materially changes; and 

23 ‘‘(B) may, as the President deems advis24 able, revise or otherwise amend the National 

25 Contingency Plan at any time.’’. 


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1 SEC. 4. REVISION OF AREA CONTINENCY PLANS. 

2 (a) UPDATING OF WORST CASE DISCHARGE.—Sec3 tion 311(j)(4)(C)(i) of the Federal Water Pollution Con4 trol Act (33 U.S.C. 1321(j)(4)(C)(i)) is amended to read 

5 as follows: 

6 ‘‘(i) when implemented in conjunction 

7 with the National Contingency Plan, be 

8 adequate to mitigate or remove a worst 

9 case discharge, as estimated under sub10 section (d)(5), and to mitigate or prevent 

11 a substantial threat of such a discharge, 

12 from a vessel, offshore facility, or onshore 

13 facility operating in or near the area;’’. 

14 (b) AREA CONTINGENCY PLAN REVISION.—Not later 

15 than 18 months after the date of enactment of this Act, 

16 each Area Committee shall revise its Area Contingency 

17 Plan established under section 311(j) of the Federal 

18 Water Pollution Control Act (33 U.S.C. 1321(j)) and sub19 mit such revisions to the President for review. Such revi20 sions shall take into account: 

21 (1) The adequacy of the Area Contingency Plan 

22 in place at the time of the explosion involving the 

23 mobile offshore drilling unit Deepwater Horizon to 

24 respond to the volume, source, and duration of the 

25 discharge caused by that explosion. 


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1 (2) Revisions made to the National Contingency 

2 Plan pursuant to section 3 of this Act. 

3 (3) Any findings and options related to the Na4 tional Contingency Plan made by the National Com5 mission on the BP Deepwater Horizon Oil Spill and 

6 Offshore Drilling established by the President by 

7 Executive Order 13543 (75 Fed. Reg. 29397). 

8 (4) The estimate of the worst case discharges 

9 provided to the Area Committee by the President 

10 under section 311(d)(5) of such Act (as added by 

11 section 2 of this Act). 

12 (c) PRESIDENTIAL REVIEW.—Not later than 180 

13 days after the date on which an Area Contingency Plan 

14 is submitted to the President under subsection (b), the 

15 President shall— 

16 (1) review the plan; 

17 (2) require amendments to the plan if the plan 

18 does not meet the requirements of section 311(j)(4) 

19 of such Act (33 U.S.C. 1321(j)(4)); and 

20 (3) approve the plan if the plan meets the re21 quirements of that section. 

22 (d) CONSISTENCY WITH NATIONAL CONTINGENCY

23 PLAN DISPERSANT SCHEDULE.—Section 311(j)(4)(C)(iv) 

24 of such Act (33 U.S.C. 1321(j)(4)(C)(iv)) is amended by 

25 inserting after ‘‘dispersants or other mitigating substances 


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1 and devices’’ the following: ‘‘(consistent with the schedule 

2 prepared under subsection (d)(2)(G))’’. 

3 (e) PERIODIC REVISION OF AREA CONTINGENCY

4 PLAN.—Section 311(j)(4)(C)(viii) of such Act (33 U.S.C. 

5 1321(j)(4)(C)(viii)) is amended to read as follows: 

6 ‘‘(viii) be updated periodically by the 

7 Area Committee, including at any time 

8 that the estimate of the worst case dis9 charges published under section 311(d)(5) 

10 is materially changed for the area or the 

11 National Contingency Plan is materially 

12 revised.’’. 

13 SEC. 5. TANK VESSEL, NONTANK VESSEL, AND FACILITY RE14 SPONSE PLANS. 

15 (a) IN GENERAL.—Not later than 180 days after the 

16 date of enactment of this Act, the President shall revise 

17 the regulations issued under section 311(j)(5) of the Fed18 eral Water Pollution Control Act (33 U.S.C. 1321(j)(5)) 

19 to ensure that each response plan required under that sec20 tion— 

21 (1) is based on a realistic assessment of worst 

22 case discharge scenarios, drawing from the estimate 

23 of the worst case discharges provided under section 

24 311(d)(5) of such Act (as added by section 2 of this 

25 Act), for each tank vessel, nontank vessel, or facility, 


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1 including a deep subsurface wellhead discharge asso2 ciated with such tank vessel, nontank vessel, or facil3 ity; 

4 (2) is based on an accurate assessment of the 

5 physical and ecological characteristics of the area in 

6 which the vessel, nontank vessel, or facility is oper7 ating, drawing from the portion of the Area Contin8 gency Plan prepared under section 311(j)(4)(C)(ii) 

9 of such Act (33 U.S.C. 1321(j)(4)(C)(ii)) that de10 scribes the area; 

11 (3) includes a demonstration and supporting 

12 certification by the owner or operator of a tank ves13 sel, nontank vessel, or facility of such owner’s or op14 erator’s capacity to fully implement the plan; and 

15 (4) meets such other requirements as the Presi16 dent may prescribe. 

17 (b) APPROVAL OF RESPONSE PLAN REQUIRED.— 

18 (1) IN GENERAL.—Section 311(j)(5) of such 

19 Act (33 U.S.C. 1321(j)(5)) is amended— 

20 (A) by striking subparagraph (G); and 

21 (B) by redesignating subparagraphs (H) 

22 and (I) as subparagraphs (G) and (H), respec23 tively. 

24 (2) APPLICABILITY.—The amendment made 

25 under paragraph (1)(A) shall not be construed to afVerDate Mar 15 2010 02:47 Jun 26, 2010 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5608.IH H5608

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1 fect any waiver issued under section 311(j)(5)(G) of 

2 such Act (33 U.S.C. 1321(j)(5)(G)) before the date 

3 of enactment of this Act. 

4 (c) CAPACITY TO IMPLEMENT RESPONSE PLANS.— 

5 Section 311(j)(6) of such Act (33 U.S.C. 1321(j)(6)) is 

6 amended to read as follows: 

7 ‘‘(6) CAPACITY TO IMPLEMENT RESPONSE

8 PLANS.— 

9 ‘‘(A) EQUIPMENT REQUIREMENTS AND IN10 SPECTION.—The President may require— 

11 ‘‘(i) periodic inspection of containment 

12 booms, skimmers, vessels, and other major 

13 equipment used to mitigate or remove dis14 charges; and 

15 ‘‘(ii) vessels operating on navigable 

16 waters and carrying oil or a hazardous 

17 substance in bulk as cargo, and nontank 

18 vessels carrying oil of any kind as fuel for 

19 main propulsion, to carry appropriate re20 moval equipment that employs the best 

21 technology economically feasible and that 

22 is compatible with the safe operation of the 

23 vessel. 

24 ‘‘(B) DEMONSTRATION OF CAPACITY TO

25 RESPOND.—The President shall require the 


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1 owner or operator of a vessel or facility required 

2 to submit a response plan under this subsection 

3 to demonstrate, not less frequently than once 

4 each year, that such owner or operator has the 

5 capacity, including the necessary equipment, 

6 personnel, or logistical capacity, to implement 

7 the response plan. 

8 ‘‘(C) EFFECT OF FAILURE TO DEM9 ONSTRATE CAPACITY TO RESPOND.—If the 

10 President determines that an owner or operator 

11 of a vessel or facility has failed to demonstrate 

12 the capacity to implement the response plan, 

13 and such owner or operator does not remedy 

14 such failure within such reasonable time period 

15 as the President may prescribe, the President 

16 shall revoke the approval of the response plan 

17 required under paragraph (5). 

18 ‘‘(D) REGULATIONS.—Not later than 180 

19 days after the date of enactment of the Better 

20 Oil Spill Response Plan Act of 2010, the Presi21 dent shall issue regulations to implement sub22 paragraphs (B) and (C).’’. 

23 SEC. 6. SAFE DISPERSANTS. 

24 (a) APPROVAL OF DISPERSANTS, OTHER CHEMI25 CALS, AND OTHER SPILL MITIGATING DEVICES AND SUBVerDate Mar 15 2010 02:47 Jun 26, 2010 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5608.IH H5608

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1 STANCES.—Section 311(d)(2)(G) of the Federal Water 

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

3 amended to read as follows: 

4 ‘‘(G) A schedule, prepared in cooperation 

5 with the States, identifying— 

6 ‘‘(i) dispersants, other chemicals, and 

7 other spill mitigating devices and sub8 stances, if any, that may be used in car9 rying out the Plan, using criteria for the 

10 evaluation of safety and efficacy of the 

11 dispersants, other chemicals, and other 

12 spill mitigating devices and substances, en13 suring that— 

14 ‘‘(I) in selecting dispersants, 

15 other chemicals, and other spill miti16 gating substances to place on the 

17 schedule, the President shall require a 

18 manufacturer of a dispersant, other 

19 chemical, or other spill mitigating 

20 substance to submit data on such dis21 persant, other chemical, or other spill 

22 mitigating substance, prepared by a 

23 laboratory approved by the President, 

24 regarding— 


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1 ‘‘(aa) efficacy on particular 

2 types of oil; 

3 ‘‘(bb) safety for known and 

4 reasonably anticipated uses; 

5 ‘‘(cc) the chronic effects of 

6 sustained use on marine, coastal, 

7 estuarine, and freshwater envi8 ronments; 

9 ‘‘(dd) the effects on selected 

10 aquatic species that represent life 

11 at various ocean depths, includ12 ing effects on benthic-dwelling 

13 organisms and coral reefs; 

14 ‘‘(ee) the effects on marine 

15 life resulting from subsurface ap16 plication; 

17 ‘‘(ff) the effects on early life 

18 stages of aquatic organisms, in19 cluding eggs and larvae; 

20 ‘‘(gg) a list of all constituent 

21 ingredients; and 

22 ‘‘(hh) material safety data 

23 sheets that describe the potential 

24 acute health impacts on humans 

25 who are involved in application 


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1 activities and who may reason2 ably be exposed during such ac3 tivities; 

4 ‘‘(II) in selecting dispersants, 

5 other chemicals, and other spill miti6 gating substances to place on the 

7 schedule, the President may place re8 strictions on the authorized quantities 

9 and conditions of use of any such dis10 persant, other chemical, or other spill 

11 mitigating substance; 

12 ‘‘(ii) the waters in which such 

13 dispersants, other chemicals, and other 

14 spill mitigating devices and substances 

15 may be used safely; and 

16 ‘‘(iii) the quantities of such 

17 dispersants, other chemicals, or other spill 

18 mitigating devices and substances which 

19 can be used safely in such waters, which 

20 schedule shall provide in the case of any 

21 dispersant, other chemical, other spill miti22 gating device or substance, or waters not 

23 specifically identified in such schedule that 

24 the President, or his designee, may, on a 

25 case-by-case basis, identify the dispersants, 


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1 other chemicals, and other spill mitigating 

2 devices and substances which may be used, 

3 the waters in which they may be used, and 

4 the quantities in which they can be used 

5 safely in such waters.’’. 

6 (b) DISCLOSURE OF CHEMICAL CONSTITUENTS.— 

7 The President shall not place a dispersant, other chemical, 

8 or other spill mitigating substance on the schedule pre9 pared under section 311(d)(2)(G) of such Act (33 U.S.C. 

10 1321(d)(2)(G)) unless the President receives assurances 

11 satisfactory to the President that the manufacturer of 

12 such dispersant, other chemical, or other spill mitigating 

13 substance will publicly disclose, upon a declaration that 

14 a discharge is classified as a spill of national significance, 

15 the constituent ingredients of such dispersant, other chem16 ical, or other spill mitigating substance that will be used 

17 to carry out a National Contingency Plan, Area Contin18 gency Plan, or response plan for a tank vessel, nontank 

19 vessel, or facility in response to such discharge. 

20 SEC. 7. ENFORCEMENT OF OIL SPILL RESPONSE PLANS 

21 FOR OFFSHORE FACILITIES. 

22 Section 5(a) of the Outer Continental Shelf Lands 

23 Act (43 U.S.C. 1334(5)(a)) is amended as follows: 

24 (1) In paragraph (7) by striking ‘‘; and’’ and 

25 inserting a semicolon. 


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1 (2) In paragraph (8) by striking the period and 

2 inserting ‘‘; and’’. 

3 (3) By adding at the end the following: 

4 ‘‘(9) requiring compliance with the response 

5 plan requirements of section 311(j) of the Federal 

6 Water Pollution Control Act (33 U.S.C. 1321(j)).’’. 

Æ 


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