II 

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. 

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 ‘‘Safe Dispersants Act’’. 


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1 SEC. 2. USE OF DISPERSANTS UNDER NATIONAL CONTIN2 GENCY PLAN. 

3 Section 311(d) of the Federal Water Pollution Con4 trol Act (33 U.S.C. 1321(d)) is amended by adding at the 

5 end the following: 

6 ‘‘(5) DISPERSANTS USED IN ACCORDANCE WITH

7 NATIONAL CONTINGENCY PLAN.— 

8 ‘‘(A) PLACEMENT OF DISPERSANTS ON

9 THE NATIONAL CONTINGENCY PLAN PRODUCT

10 SCHEDULE.— 

11 ‘‘(i) IN GENERAL.—No dispersant 

12 may be used in a response to a discharge 

13 of oil or hazardous substances unless the 

14 dispersant has been listed by the Adminis15 trator on the National Contingency Plan 

16 Product Schedule in accordance with this 

17 subparagraph. 

18 ‘‘(ii) LISTING.—The Administrator 

19 may list, or allow the continued listing of, 

20 a dispersant on the National Contingency 

21 Plan Product Schedule for determination 

22 by the Federal On-Scene Coordinator, in 

23 consultation with the Administrator and 

24 Regional Response Team, and the National 

25 Response Team, as appropriate, for use in 

26 response to a discharge of oil or hazardous 


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1 substances only if the Administrator deter2 mines that— 

3 ‘‘(I) the dispersant meets such 

4 standards as shall be established by 

5 the Administrator governing max6 imum allowable toxicity and minimum 

7 acceptable effectiveness; 

8 ‘‘(II) the adverse effect from use 

9 of the dispersant is less than the ad10 verse effect from allowing the dis11 charged oil or hazardous substance— 

12 ‘‘(aa) to be dispersed by nat13 ural or physical means; 

14 ‘‘(bb) to degrade by natural 

15 processes; 

16 ‘‘(cc) to be removed by tech17 nologically feasible physical meth18 ods; or 

19 ‘‘(dd) to undergo any com20 bination of the processes de21 scribed in items (aa) through 

22 (cc); and 

23 ‘‘(III) any such listing, or deci24 sion to continue listing, meets such 

25 other conditions as the Administrator 


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1 determines are necessary to ensure 

2 the dispersant meets the criteria de3 scribed in subclauses (I) and (II). 

4 ‘‘(iii) DETERMINATION OF ADVERSE

5 EFFECT.—In determining the adverse ef6 fect from the use of a dispersant, the Ad7 ministrator shall consider— 

8 ‘‘(I) acute, chronic, short- and 

9 long-term health and environmental 

10 effects of the dispersant or any indi11 vidual component of the dispersant 

12 formulation; 

13 ‘‘(II) additive or synergistic ef14 fects of the dispersant in combination 

15 with oil or hazardous substances and 

16 other environmental factors and com17 ponents; and 

18 ‘‘(III) persistence, bioavailability, 

19 and bioaccumulation potential. 

20 ‘‘(B) MINIMUM DATA SET ON

21 DISPERSANTS.— 

22 ‘‘(i) IN GENERAL.—The Administrator 

23 shall promulgate regulations specifying the 

24 minimum data set applicable to dispersants 


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1 listed on the National Contingency Plan 

2 Product Schedule under subparagraph (A). 

3 ‘‘(ii) REQUIREMENTS.—The data set 

4 specified under clause (i) shall— 

5 ‘‘(I) include information nec6 essary and sufficient to determine the 

7 potential for dispersants, or their deg8 radation products, both by themselves 

9 and in combination with oil or haz10 ardous substances and other environ11 mental factors and components, to 

12 persist or accumulate in, or create or 

13 contribute to short- and long-term ad14 verse effects on— 

15 ‘‘(aa) marine, estuarine, and 

16 freshwater environments and eco17 systems, including surface, sub18 surface, and benthic zones; 

19 ‘‘(bb) representative forms 

20 of marine, coastal estuarine, and 

21 freshwater organisms, including 

22 aquatic and terrestrial species, 

23 including birds; 

24 ‘‘(cc) workers, volunteers, 

25 and other individuals involved in 


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1 handling, storing, transporting, 

2 applying, treating, or disposing of 

3 the dispersants or dispersant 

4 wastes, or who may otherwise 

5 come into direct contact with the 

6 dispersants or dispersant wastes 

7 before, during, or after the appli8 cation of the dispersants; and 

9 ‘‘(dd) individuals in or near 

10 areas in which dispersants are 

11 being handled, stored, trans12 ported, applied, treated, or dis13 posed of, or who may otherwise 

14 be reasonably expected to be ex15 posed to the dispersants; 

16 ‘‘(II) include information on the 

17 dispersants and their uses, including 

18 on— 

19 ‘‘(aa) individual ingredients 

20 of the dispersants; 

21 ‘‘(bb) the combination of the 

22 dispersants with each type of oil 

23 or hazardous substance with 

24 which the dispersants may rea25 sonably be expected to be used; 


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1 ‘‘(cc) the efficacy of the dis2 persant under different condi3 tions of use (including the oil or 

4 hazardous substance type, tem5 perature, salinity, and type of en6 vironmental media, such as open 

7 sea, rocky shoreline, rocky or 

8 sandy substrates, or marsh 

9 grasses), and the optimal condi10 tion for use; and 

11 ‘‘(dd) the efficacy of the dis12 persant at different use con13 centrations and the most effective 

14 application rate; and 

15 ‘‘(III) be sufficient to assist the 

16 Administrator in determining— 

17 ‘‘(aa) whether the combina18 tion of each dispersant and each 

19 relevant type of oil or hazardous 

20 substance can increase or de21 crease the persistence, bio22 accumulation potential, or tox23 icity relative to either the dis24 persant or oil or hazardous sub25 stance alone; 


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1 ‘‘(bb) the potential for dis2 persant components to persist or 

3 accumulate in the environment or 

4 biota, or create or contribute to, 

5 short- and long-term adverse ef6 fects under any scale or manner 

7 of application, including in worst8 case situations; and 

9 ‘‘(cc) whether and under 

10 what circumstances use of the 

11 dispersant would cause less harm 

12 to health and the environment 

13 than responding to a discharge of 

14 oil or hazardous substances with15 out use of the dispersant. 

16 ‘‘(C) DISCLOSURE OF DISPERSANT INGRE17 DIENTS AND SAFETY INFORMATION.— 

18 ‘‘(i) HEALTH AND SAFETY INFORMA19 TION.—The Administrator shall consider 

20 health and safety information for a dis21 persant listed for use under the National 

22 Contingency Plan Product Schedule to 

23 mean information from any study of any 

24 effect of a dispersant (or any constituent), 

25 either alone or in combination with oil or 


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1 a hazardous substance, on health, the envi2 ronment, or both, including— 

3 ‘‘(I) underlying data and epide4 miological studies; 

5 ‘‘(II) studies of occupational ex6 posure to a chemical substance or 

7 mixture; 

8 ‘‘(III) toxicological, clinical, and 

9 ecological studies of a chemical sub10 stance or mixture; 

11 ‘‘(IV) the specific chemical iden12 tities of the dispersant and constitu13 ents of the dispersant; and 

14 ‘‘(V) any test performed pursu15 ant to this title. 

16 ‘‘(ii) AVAILABILITY OF INFORMA17 TION.—Notwithstanding any other provi18 sion of law, the Administrator shall make 

19 available to the public— 

20 ‘‘(I) all health and safety infor21 mation for the chemical dispersant; 

22 ‘‘(II) the concentrations of all in23 gredients of the dispersant, if the Ad24 ministrator determines that the public 

25 availability of that information is necVerDate Mar 15 2010 02:44 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3661.IS S3661

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1 essary to prevent substantial 

2 endangerment to human health or the 

3 environment or is otherwise in the 

4 public interest, taking into account 

5 the needs of responders, local resi6 dents, medical personnel, and re7 searchers engaged in monitoring or 

8 otherwise studying the effects of the 

9 dispersant or of discharges of oil in 

10 which the chemical dispersant is used; 

11 and 

12 ‘‘(III) information on listed 

13 dispersants that the Administrator is 

14 required to disclose under subclause 

15 (II) or (III), unless the information is 

16 protected from disclosure under sec17 tion 552(b)(4) of title 5, United 

18 States Code.’’. 

19 SEC. 3. DISPERSANT HEALTH AND ENVIRONMENTAL IM20 PACT STUDY. 

21 (a) STUDY.—Not later than 45 days after the date 

22 of enactment of this Act, the Administrator of the Envi23 ronmental Protection Agency (referred to in this Act as 

24 the ‘‘Administrator’’) shall initiate a study evaluating the 

25 adequacy of existing capabilities and legal authorities of 


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1 the Federal Government to make informed decisions re2 garding the health and environmental impacts of 

3 dispersants placed on the National Contingency Product 

4 Schedule under section 311 of the Federal Water Pollu5 tion Control Act (33 U.S.C. 1321). 

6 (b) MINIMUM ELEMENTS OF THE STUDY.— 

7 (1) IN GENERAL.—The study shall include an 

8 assessment of the availability of information nec9 essary to evaluate the risks and impacts to human 

10 health and the environment, including acute and 

11 chronic risks, from the use of dispersants, other 

12 chemicals, and other spill-mitigating substances, if 

13 any, that may be used to carry out the National 

14 Contingency Plan, including an assessment of such 

15 risks and impacts. 

16 (2) MINIMUM EVALUATION.—At a minimum, 

17 the study shall evaluate— 

18 (A) the availability of, and the advisability 

19 of requiring additional information that is nec20 essary and sufficient to determine the potential 

21 for, dispersants, or their degradation products, 

22 both by themselves and in combination with oil 

23 or hazardous substances and other environ24 mental factors and components, to persist or 


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1 accumulate in, or create or contribute to short2 and long-term adverse effects on— 

3 (i) workers, volunteers, and other in4 dividuals involved in handling, storing, 

5 transporting, applying, treating, or dis6 posing of the dispersants or dispersant 

7 wastes, or who may otherwise come into di8 rect contact with dispersants or dispersant 

9 wastes before, during, or after the applica10 tion of the dispersants; 

11 (ii) individuals in or near areas in 

12 which dispersants are being handled, 

13 stored, transported, applied, treated, or 

14 disposed of, or who may otherwise be rea15 sonably expected to be exposed to the 

16 dispersants; 

17 (iii) marine, estuarine, and freshwater 

18 environments and ecosystems, including 

19 surface, subsurface, and benthic zones; and 

20 (iv) representative forms of marine, 

21 coastal estuarine, and freshwater orga22 nisms, including aquatic, soil- and sedi23 ment-dwelling, and terrestrial species, in24 cluding birds; 


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1 (B) the availability of, and the advisability 

2 of requiring additional information regarding, 

3 the dispersants and their uses, including infor4 mation on— 

5 (i) individual ingredients of the 

6 dispersants; 

7 (ii) the combination of the dispersants 

8 with each type of oil or hazardous sub9 stance with which the dispersants may rea10 sonably be expected to be used; 

11 (iii) the health and environmental im12 pacts and efficacy of the dispersant under 

13 different conditions of use (including oil or 

14 hazardous substance type, temperature, 

15 pressure, salinity, and type of environ16 mental media (such as open sea, rocky 

17 shoreline, rocky or sandy substrates, corals 

18 or marsh grasses)), and the optimal condi19 tion for use; 

20 (iv) the health and environmental im21 pacts and efficacy of the dispersant at dif22 ferent use concentrations and the most ef23 fective application rate and quantity; 

24 (v) whether the combination of each 

25 dispersant and each relevant type of oil or 


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1 hazardous substance can increase or de2 crease the persistence, bioaccumulation po3 tential, or toxicity relative to either the dis4 persant or oil or hazardous substance 

5 alone; 

6 (vi) the potential for dispersant com7 ponents to persist or accumulate in the en8 vironment or biota, or create or contribute 

9 to short- and long-term adverse effects 

10 under any scale or manner of application, 

11 including in worst-case situations; and 

12 (vii) whether and under what cir13 cumstances use of the dispersant would 

14 cause less adverse effects to health and the 

15 environment than responding to a dis16 charge of oil or hazardous substances with17 out use of the dispersant; and 

18 (C) an assessment of the adequacy of ex19 isting Federal laws (including regulations) to 

20 protect human health and the environment 

21 from the potential risks and impacts from the 

22 toxicity of dispersants placed on the National 

23 Contingency Product Schedule. 

24 (c) CONSULTATION.—The Administrator shall con25 duct the study under this section in consultation with such 


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1 other Federal departments and agencies as the Adminis2 trator determines to be appropriate. 

3 (d) NOTICE AND COMMENT.—The Administrator 

4 shall provide for public notice of, and not fewer than 30 

5 days of public comment on, the draft study. 

6 (e) DEADLINE.—The Administrator shall complete 

7 the study under this section not later than 180 days after 

8 the date of enactment of this Act. 

9 SEC. 4. REPORT TO CONGRESS. 

10 (a) REPORT.—Not later than 90 days after the date 

11 of completion of the study under section 3, the Adminis12 trator shall submit to Congress a report that— 

13 (1) describes the results of the study; and 

14 (2) makes specific recommendations concerning 

15 potential improvements to the existing capabilities 

16 and legal authorities of the Federal Government to 

17 make informed decisions regarding the health and 

18 environmental impacts of dispersants placed on the 

19 National Contingency Product Schedule. 

20 (b) CONTENTS.—The report shall, at a minimum, in21 clude— 

22 (1) a description of the results of the study con23 ducted under section 3; 

24 (2) an identification of the gaps in available in25 formation regarding the health and environmental 


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1 impacts of dispersants on, or being considered for 

2 placement on, the National Contingency Product 

3 Schedule; 

4 (3) recommendations for addressing the gaps in 

5 relevant information, which could include research, 

6 technology development, and demonstration among 

7 the Federal agencies, or in cooperation with indus8 try, institutions of higher education, research insti9 tutions, or State governments; and 

10 (4) recommendations for any statutory or regu11 latory changes necessary to ensure the safety of 

12 dispersants currently on the National Contingency 

13 Product Schedule, or being considered for future 

14 placement on the National Contingency Product 

15 Schedule. 

16 SEC. 5. REVISION OF THE NATIONAL CONTINGENCY PLAN17 SUBPART J. 

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

19 date of enactment of this Act, the Administrator shall de20 termine whether to propose revisions to subpart J of the 

21 National Contingency Plan prepared under section 311(d) 

22 of the Federal Water Pollution Control Act (33 U.S.C. 

23 1321(d)) and, as necessary, the regulations required under 

24 section 311(j) of that Act (33 U.S.C. 1321(j)). 


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1 (b) PROPOSED REVISIONS.—If the Administrator de2 termines that revisions described in subsection (a) are nec3 essary to ensure the effectiveness and safety of 

4 dispersants, the Administrator shall propose the revisions 

5 not later than 180 days after the date on which the Ad6 ministrator makes the determination under subsection (a). 

7 (c) CONSIDERATION OF REPORT.—The revisions pro8 posed under subsection (b) shall take into account the rec9 ommendations in the report to Congress required under 

10 section 4. 

Æ 


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