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[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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