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.