[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3562 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3562

 To amend the Federal Water Pollution Control Act with respect to the 
              use of dispersants, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            December 5, 2011

  Mr. Nadler (for himself and Mr. Bishop of New York) introduced the 
 following bill; which was referred to the Committee on Transportation 
  and Infrastructure, and in addition to the Committee on Energy and 
Commerce, 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 with respect to the 
              use of dispersants, 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 ``Ban Toxic Dispersants Act of 2011''.

SEC. 2. NATIONAL CONTINGENCY PLAN.

    (a) Contents.--Section 311(d)(2)(G) of the Federal Water Pollution 
Control Act (33 U.S.C. 1321(d)(2)(G)) is amended by striking the period 
at the end and inserting the following: ``, except that a dispersant, 
other chemical, or other spill mitigating device or substance that is 
not included on the schedule may be used in carrying out the Plan only 
if the dispersant, other chemical, or other spill mitigating device or 
substance is proposed to be included on the schedule.''.
    (b) Schedule for Use of Dispersants, Other Chemicals, and Other 
Spill Mitigating Devices and Substances.--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) Schedule for use of dispersants, other chemicals, and 
        other spill mitigating devices and substances.--
                    ``(A) Rulemaking.--Not later than 2 years after the 
                date of enactment of this paragraph, the President, 
                acting through the Administrator, after providing 
                notice and an opportunity for public comment, shall 
                issue a revised regulation for the development of the 
                schedule for the use of dispersants, other chemicals, 
                and other spill mitigating devices and substances 
                developed under paragraph (2)(G) in a manner that is 
                consistent with the requirements of this paragraph, and 
                shall modify the existing schedule to take into account 
                the requirements of the revised regulation.
                    ``(B) Schedule listing requirements.--In issuing 
                the regulation under subparagraph (A), the 
                Administrator shall--
                            ``(i) with respect to dispersants, other 
                        chemicals, and other spill mitigating 
                        substances included or proposed to be included 
                        on the schedule under paragraph (2)(G)--
                                    ``(I) establish minimum toxicity 
                                and efficacy testing criteria, taking 
                                into account the results of the study 
                                carried out under subparagraph (E);
                                    ``(II) provide for testing or other 
                                verification (independent from the 
                                information provided by an applicant 
                                seeking the inclusion of such 
                                dispersant, chemical, or substance on 
                                the schedule) related to the toxicity 
                                and effectiveness of such dispersant, 
                                chemical, or substance;
                                    ``(III) establish protocols for the 
                                application of any such dispersant, 
                                chemical, or substance, including--
                                            ``(aa) application 
                                        conditions;
                                            ``(bb) the quantity 
                                        thresholds for which approval 
                                        by the Administrator is 
                                        required;
                                            ``(cc) the criteria to be 
                                        used to develop the appropriate 
                                        maximum quantity of any such 
                                        dispersant, chemical, or 
                                        substance that the 
                                        Administrator determines may be 
                                        used, both on a daily and 
                                        cumulative basis; and
                                            ``(dd) a ranking, by 
                                        geographic area, of any such 
                                        dispersant, chemical, or 
                                        substance based on a 
                                        combination of its 
                                        effectiveness for each type of 
                                        oil and its level of toxicity;
                                    ``(IV) establish a requirement that 
                                the volume of oil or hazardous 
                                substance discharged, and the volume 
                                and location of any such dispersant, 
                                chemical, or substance used, be 
                                measured and made publicly available on 
                                a daily basis, including on the 
                                Internet;
                                    ``(V) require the public disclosure 
                                of all ingredients, including the 
                                chemical and common name of such 
                                ingredients, contained in any such 
                                dispersant, chemical, or substance 
                                prior to the use of such dispersant, 
                                chemical, or substance; and
                                    ``(VI) in addition to existing 
                                authority, expressly provide a 
                                mechanism for the delisting of any such 
                                dispersant, chemical, or substance that 
                                the Administrator determines poses a 
                                significant risk or impact to human 
                                health, water quality, the environment, 
                                or any other factor the Administrator 
                                determines appropriate; and
                            ``(ii) with respect to other spill 
                        mitigating devices included or proposed to be 
                        included on the schedule under paragraph 
                        (2)(G)--
                                    ``(I) require the manufacturer of 
                                such device to carry out a study of the 
                                risks and effectiveness of the device 
                                according to guidelines developed and 
                                published by the Administrator; and
                                    ``(II) in addition to existing 
                                authority, expressly provide a 
                                mechanism for the delisting of any such 
                                device based on any information made 
                                available to the Administrator that 
                                demonstrates that such device poses a 
                                significant risk or impact to human 
                                health, water quality, the environment, 
                                or any other factor the Administrator 
                                determines appropriate.
                    ``(C) Minimum toxicity criteria.--In establishing 
                minimum toxicity criteria under subparagraph (B)(i)(I), 
                the Administrator, as appropriate, shall comply with 
                the requirements of section 121(d) of the Comprehensive 
                Environmental Response, Compensation, and Liability Act 
                of 1980 (42 U.S.C. 9621(d)).
                    ``(D) Delisting.--In carrying out subparagraphs 
                (B)(i)(VI) and (B)(ii)(II), the Administrator, after 
                posting a notice in the Federal Register and providing 
                an opportunity for public comment, shall initiate a 
                formal review of the potential risks and impacts 
                associated with a dispersant, chemical, substance, or 
                device prior to delisting the dispersant, chemical, 
                substance, or device.
                    ``(E) Study.--
                            ``(i) In general.--Not later than 3 months 
                        after the date of enactment of this paragraph, 
                        the Administrator, in coordination with the 
                        Agency for Toxic Substances and Disease 
                        Registry, shall initiate a study of the 
                        potential risks and impacts to human health, 
                        water quality, the environment, or any other 
                        factor the Administrator determines 
                        appropriate, 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--
                                    ``(I) on a representative sample of 
                                biota and types of oil from locations 
                                where such dispersants, chemicals, or 
                                substances may potentially be used;
                                    ``(II) on human health, including 
                                factors relating to--
                                            ``(aa) individuals most 
                                        likely to be exposed to such 
                                        dispersants, chemicals, or 
                                        substances; and
                                            ``(bb) the pathways of 
                                        exposure to such dispersants, 
                                        chemicals, or substances, 
                                        including direct contract, 
                                        ingestion, and inhalation;
                                    ``(III) that result from any 
                                byproducts created from the use of such 
                                dispersants, chemicals, or substances.
                            ``(ii) Information from manufacturers.--
                                    ``(I) In general.--In conjunction 
                                with the study authorized by clause 
                                (i), the Administrator shall determine 
                                the requirements for manufacturers of 
                                dispersants, chemicals, or substances 
                                to evaluate the potential risks and 
                                impacts to human health, water quality, 
                                the environment, or any other factor 
                                the Administrator determines 
                                appropriate, including acute and 
                                chronic risks, associated with the use 
                                of the dispersants, chemicals, or 
                                substances and any byproducts generated 
                                by such use and to provide the details 
                                of such evaluation as a condition for 
                                listing on the schedule, or approving 
                                for use under this section, according 
                                to guidelines developed and published 
                                by the Administrator.
                                    ``(II) Minimum requirements for 
                                evaluation.--In carrying out this 
                                clause, the Administrator shall require 
                                a manufacturer to include--
                                            ``(aa) information on the 
                                        types of oils for which and 
                                        locations where such 
                                        dispersants, chemicals, or 
                                        substances may potentially be 
                                        used; and
                                            ``(bb) if appropriate, an 
                                        assessment of the impacts from 
                                        subsea use of the dispersant, 
                                        chemical, or substance, 
                                        including the potential long 
                                        term effects of such use on 
                                        water quality and the 
                                        environment.
                    ``(F) Periodic revisions.--
                            ``(i) In general.--Not later than 5 years 
                        after the date of the issuance of the 
                        regulation under this paragraph, and on an 
                        ongoing basis thereafter (and at least once 
                        every 5 years), the Administrator shall review 
                        the schedule for the use of dispersants, other 
                        chemicals, and other spill mitigating devices 
                        and substances that may be used to carry out 
                        the National Contingency Plan and update or 
                        revise the schedule, as necessary, to ensure 
                        the protection of human health, water quality, 
                        the environment, and any other factor the 
                        Administrator determines appropriate.
                            ``(ii) Effectiveness.--The Administrator 
                        shall ensure, to the maximum extent 
                        practicable, that each update or revision to 
                        the schedule increases the minimum 
                        effectiveness necessary for listing a 
                        dispersant, other chemical, or other spill 
                        mitigating device or substance on the schedule.
                    ``(G) Approval of use and application of 
                dispersants.--
                            ``(i) In general.--In issuing the 
                        regulation under subparagraph (A), the 
                        Administrator shall require the approval of the 
                        Federal On-Scene Coordinator, in coordination 
                        with the Administrator, for all uses of a 
                        dispersant, other chemical, or other spill 
                        mitigating substance in any removal action, 
                        including--
                                    ``(I) any such dispersant, 
                                chemical, or substance that is included 
                                on the schedule developed pursuant to 
                                this subsection; and
                                    ``(II) any dispersant, chemical, or 
                                other substance that is included as 
                                part an approved area contingency plan 
                                or response plan developed under this 
                                section.
                            ``(ii) Regulations.--Any provision of 
                        section 300.910 of title 40, Code of Federal 
                        Regulations, that is inconsistent with this 
                        paragraph shall have no force or effect.
            ``(6) Fees.--
                    ``(A) General authority and fees.--Subject to 
                subparagraph (B), the Administrator shall establish a 
                schedule of fees to be collected from the manufacturer 
                of a dispersant, chemical, or spill mitigating 
                substance or device to offset the costs of the 
                Administrator associated with evaluating the use of the 
                dispersant, chemical, substance, or device in 
                accordance with this subsection and listing the 
                dispersant, chemical, substance, or device on the 
                schedule under paragraph (2)(G).
                    ``(B) Limitation on collection.--No fee may be 
                collected under this subsection unless the expenditure 
                of the fee to pay the costs of activities and services 
                for which the fee is imposed is provided for in advance 
                in an appropriations Act.
                    ``(C) Fees credited as offsetting collections.--
                            ``(i) In general.--Notwithstanding section 
                        3302 of title 31, United States Code, any fee 
                        authorized to be collected under this paragraph 
                        shall--
                                    ``(I) be credited as offsetting 
                                collections to the account that 
                                finances the activities and services 
                                for which the fee is imposed;
                                    ``(II) be available for expenditure 
                                only to pay the costs of activities and 
                                services for which the fee is imposed, 
                                including all costs associated with 
                                collecting such fees; and
                                    ``(III) remain available until 
                                expended.
                            ``(ii) Continuing appropriations.--The 
                        Administrator may continue to assess, collect, 
                        and spend fees established under this section 
                        during any period in which the funding for the 
                        Environmental Protection Agency is provided 
                        under an Act providing continuing 
                        appropriations in lieu of the Administration's 
                        regular appropriations.
                            ``(iii) Adjustments.--The Administrator 
                        shall adjust the fees established by 
                        subparagraph (A) periodically to ensure that 
                        each of the fees required by subparagraph (A) 
                        is reasonably related to the Administrator's 
                        costs, as determined by the Administrator, of 
                        performing the activity for which the fee is 
                        imposed.''.

SEC. 3. TEMPORARY MORATORIUM ON APPROVAL OF USE OF DISPERSANTS.

    (a) In General.--Subject to subsection (b), the Administrator of 
the Environmental Protection Agency may not approve the use of a 
dispersant under section 311(d) of the Federal Water Pollution Control 
Act of 1990 (33 U.S.C. 1321(d)), and shall withdraw any approval of 
such use made before the date of enactment of this Act, until the date 
on which the rulemaking and study required by subparagraphs (A) and (E) 
of section 311(d)(5) of such Act (as added by this Act) are complete.
    (b) Conditional Approval.--
            (1) In general.--The Administrator may approve the use of a 
        dispersant under section 311(d) of such Act (33 U.S.C. 1321(d)) 
        that is included or proposed to be included on the schedule 
        under section 311(d)(2)(G) of such Act (33 U.S.C. 
        1321(d)(2)(G)) for the period of time before the date on which 
        the rulemaking and study required by subparagraphs (A) and (E) 
        of section 311(d)(5) of such Act (as added by this Act) are 
        complete if the Administrator determines that such use will not 
        have a negative impact on human health, water quality, the 
        environment, or any other factor the Administrator determines 
        appropriate.
            (2) Sunset.--An approval issued under paragraph (1) shall 
        cease to be effective after the last day of the 2-year period 
        beginning on the date of enactment of this Act.
    (c) Information.--In approving the use of a dispersant under 
subsection (b), the Administrator may require the manufacturer of the 
dispersant to provide such information as the Administrator determines 
necessary to satisfy the requirements of that subsection.
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