skip to main content

S. 3661 (111th): Safe Dispersants Act

The text of the bill below is as of Jul 28, 2010 (Introduced).


II

111th CONGRESS

2d Session

S. 3661

IN THE SENATE OF THE UNITED STATES

July 28, 2010

(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.

Short title

This Act may be cited as the Safe Dispersants Act.

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.

.

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.

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.

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.