I 111th CONGRESS 2d Session H. R. 5608 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.

Short title

This Act may be cited as the Better Oil Spill Response Plan Act of 2010.

2.

Worst case discharges

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)

Worst case discharges

Not later than 180 days after the date of enactment of this paragraph, and every 5 years thereafter, the President shall publish and provide to each Area Committee established under subsection (j)(4) an estimate of the worst case discharges, including subsurface discharges, that are possible in each area described in an Area Contingency Plan under subsection (j)(4)(C)(ii), based on the oil and gas exploration, development, and production activities that are being conducted or are planned to be conducted at various locations and depths in each area. .

3.

Revision of National Contingency Plan

(a)

In general

Not later than 270 days after the date of enactment of this Act, the President shall revise 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 such Act (33 U.S.C. 1321(j)). Such revisions shall take into account the following: (1)The adequacy of the National Contingency Plan in place at the time of the explosion involving the mobile offshore drilling unit Deepwater Horizon to respond to the volume, source, and duration of the discharge caused by that explosion. (2)Any findings and options related to the National Contingency Plan made by the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling established by the President by Executive Order 13543 (75 Fed. Reg. 29397). (3)The estimate of the worst case discharges published under section 311(d)(5) of such Act (as added by section 2 of this Act). (b)

Revisions and amendments

Section 311(d)(3) of such Act (33 U.S.C. 1321(d)(3)) is amended to read as follows: (3)

Revisions and amendments

The President— (A)shall revise or otherwise amend the National Contingency Plan whenever the estimate of the worst case discharges published under paragraph (5) materially changes; and (B)may, as the President deems advisable, revise or otherwise amend the National Contingency Plan at any time. .

4.

Revision of area continency plans

(a)

Updating of worst case discharge

Section 311(j)(4)(C)(i) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(4)(C)(i)) is amended to read as follows: (i)when implemented in conjunction with the National Contingency Plan, be adequate to mitigate or remove a worst case discharge, as estimated under subsection (d)(5), and to mitigate or prevent a substantial threat of such a discharge, from a vessel, offshore facility, or onshore facility operating in or near the area; . (b)

Area contingency plan revision

Not later than 18 months after the date of enactment of this Act, each Area Committee shall revise its Area Contingency Plan established under section 311(j) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)) and submit such revisions to the President for review. Such revisions shall take into account: (1)The adequacy of the Area Contingency Plan in place at the time of the explosion involving the mobile offshore drilling unit Deepwater Horizon to respond to the volume, source, and duration of the discharge caused by that explosion. (2)Revisions made to the National Contingency Plan pursuant to section 3 of this Act. (3)Any findings and options related to the National Contingency Plan made by the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling established by the President by Executive Order 13543 (75 Fed. Reg. 29397). (4)The estimate of the worst case discharges provided to the Area Committee by the President under section 311(d)(5) of such Act (as added by section 2 of this Act). (c)

Presidential review

Not later than 180 days after the date on which an Area Contingency Plan is submitted to the President under subsection (b), the President shall— (1)review the plan; (2)require amendments to the plan if the plan does not meet the requirements of section 311(j)(4) of such Act (33 U.S.C. 1321(j)(4)); and (3)approve the plan if the plan meets the requirements of that section. (d)

Consistency with National Contingency Plan dispersant schedule

Section 311(j)(4)(C)(iv) of such Act (33 U.S.C. 1321(j)(4)(C)(iv)) is amended by inserting after dispersants or other mitigating substances and devices the following: (consistent with the schedule prepared under subsection (d)(2)(G)). (e)

Periodic revision of Area Contingency Plan

Section 311(j)(4)(C)(viii) of such Act (33 U.S.C. 1321(j)(4)(C)(viii)) is amended to read as follows: (viii)be updated periodically by the Area Committee, including at any time that the estimate of the worst case discharges published under section 311(d)(5) is materially changed for the area or the National Contingency Plan is materially revised. .

5.

Tank vessel, nontank vessel, and facility response plans

(a)

In general

Not later than 180 days after the date of enactment of this Act, the President shall revise the regulations issued under section 311(j)(5) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(5)) to ensure that each response plan required under that section— (1)is based on a realistic assessment of worst case discharge scenarios, drawing from the estimate of the worst case discharges provided under section 311(d)(5) of such Act (as added by section 2 of this Act), for each tank vessel, nontank vessel, or facility, including a deep subsurface wellhead discharge associated with such tank vessel, nontank vessel, or facility; (2)is based on an accurate assessment of the physical and ecological characteristics of the area in which the vessel, nontank vessel, or facility is operating, drawing from the portion of the Area Contingency Plan prepared under section 311(j)(4)(C)(ii) of such Act (33 U.S.C. 1321(j)(4)(C)(ii)) that describes the area; (3)includes a demonstration and supporting certification by the owner or operator of a tank vessel, nontank vessel, or facility of such owner’s or operator’s capacity to fully implement the plan; and (4)meets such other requirements as the President may prescribe. (b)

Approval of response plan required

(1)

In general

Section 311(j)(5) of such Act (33 U.S.C. 1321(j)(5)) is amended— (A)by striking subparagraph (G); and (B)by redesignating subparagraphs (H) and (I) as subparagraphs (G) and (H), respectively. (2)

Applicability

The amendment made under paragraph (1)(A) shall not be construed to affect any waiver issued under section 311(j)(5)(G) of such Act (33 U.S.C. 1321(j)(5)(G)) before the date of enactment of this Act. (c)

Capacity To implement response plans

Section 311(j)(6) of such Act (33 U.S.C. 1321(j)(6)) is amended to read as follows: (6)

Capacity to implement response plans

(A)

Equipment requirements and inspection

The President may require— (i)periodic inspection of containment booms, skimmers, vessels, and other major equipment used to mitigate or remove discharges; and (ii)vessels operating on navigable waters and carrying oil or a hazardous substance in bulk as cargo, and nontank vessels carrying oil of any kind as fuel for main propulsion, to carry appropriate removal equipment that employs the best technology economically feasible and that is compatible with the safe operation of the vessel. (B)

Demonstration of capacity to respond

The President shall require the owner or operator of a vessel or facility required to submit a response plan under this subsection to demonstrate, not less frequently than once each year, that such owner or operator has the capacity, including the necessary equipment, personnel, or logistical capacity, to implement the response plan. (C)

Effect of failure to demonstrate capacity to respond

If the President determines that an owner or operator of a vessel or facility has failed to demonstrate the capacity to implement the response plan, and such owner or operator does not remedy such failure within such reasonable time period as the President may prescribe, the President shall revoke the approval of the response plan required under paragraph (5). (D)

Regulations

Not later than 180 days after the date of enactment of the Better Oil Spill Response Plan Act of 2010, the President shall issue regulations to implement subparagraphs (B) and (C). .

6.

Safe dispersants

(a)

Approval of dispersants, other chemicals, and other spill mitigating devices and substances

Section 311(d)(2)(G) of the Federal Water Pollution Control Act (33 U.S.C. 1321(d)(2)(G)) is amended to read as follows: (G)A schedule, prepared in cooperation with the States, identifying— (i)dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the Plan, using criteria for the evaluation of safety and efficacy of the dispersants, other chemicals, and other spill mitigating devices and substances, ensuring that— (I)in selecting dispersants, other chemicals, and other spill mitigating substances to place on the schedule, the President shall require a manufacturer of a dispersant, other chemical, or other spill mitigating substance to submit data on such dispersant, other chemical, or other spill mitigating substance, prepared by a laboratory approved by the President, regarding— (aa)efficacy on particular types of oil; (bb)safety for known and reasonably anticipated uses; (cc)the chronic effects of sustained use on marine, coastal, estuarine, and freshwater environments; (dd)the effects on selected aquatic species that represent life at various ocean depths, including effects on benthic-dwelling organisms and coral reefs; (ee)the effects on marine life resulting from subsurface application; (ff)the effects on early life stages of aquatic organisms, including eggs and larvae; (gg)a list of all constituent ingredients; and (hh)material safety data sheets that describe the potential acute health impacts on humans who are involved in application activities and who may reasonably be exposed during such activities; (II)in selecting dispersants, other chemicals, and other spill mitigating substances to place on the schedule, the President may place restrictions on the authorized quantities and conditions of use of any such dispersant, other chemical, or other spill mitigating substance; (ii)the waters in which such dispersants, other chemicals, and other spill mitigating devices and substances may be used safely; and (iii)the quantities of such dispersants, other chemicals, or other spill mitigating devices and substances which can be used safely in such waters, which schedule shall provide in the case of any dispersant, other chemical, other spill mitigating device or substance, or waters not specifically identified in such schedule that the President, or his designee, may, on a case-by-case basis, identify the dispersants, other chemicals, and other spill mitigating devices and substances which may be used, the waters in which they may be used, and the quantities in which they can be used safely in such waters. . (b)

Disclosure of chemical constituents

The President shall not place a dispersant, other chemical, or other spill mitigating substance on the schedule prepared under section 311(d)(2)(G) of such Act (33 U.S.C. 1321(d)(2)(G)) unless the President receives assurances satisfactory to the President that the manufacturer of such dispersant, other chemical, or other spill mitigating substance will publicly disclose, upon a declaration that a discharge is classified as a spill of national significance, the constituent ingredients of such dispersant, other chemical, or other spill mitigating substance that will be used to carry out a National Contingency Plan, Area Contingency Plan, or response plan for a tank vessel, nontank vessel, or facility in response to such discharge.

7.

Enforcement of oil spill response plans for offshore facilities

Section 5(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1334(5)(a)) is amended as follows: (1)In paragraph (7) by striking ; and and inserting a semicolon. (2)In paragraph (8) by striking the period and inserting ; and. (3)By adding at the end the following: (9)requiring compliance with the response plan requirements of section 311(j) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)). .