Referral of Small Oil Spills to Coast Guard Under Oil Pollution Act Before New Enforcement MOU Is in Effect


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       I      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

       "                 WASHINGTON, D,C, 20460
                         JUN 17 1391
MEMORANDUM

SUBJECT:  Referral of Small Oil  Spills  to Coast Guard
          Under Oil Pollution Act  Before New Enforcement
          MOU is in Effect

FROM:     Frederick F. Stiehl &A**fa
          Associate Enforcement  Counsel for Water

TO;       Regional Counsels, Regions  I-X

     This memorandum supplements earlier guidance  (attached)
concerning a case-by-case -approach to the referral of post- Oil
Pollution Act (OPA) oil spills to  the Coast Guard.
                                                * **~«nf orccmnt
MOO , ths-Aywwy '•''BHLlff'HOt 'B'ltiRp *«S*cfcioi*^l-'«nf orc«muit- action
for an oit-spiitV all such Section 311 cases were Coast Guard
responsibilities.  Congress has  rewritten Section  311 to provide
additional administrative and  judicial  oil spill enforcement
remedies when it passed the OPA,  and  noted in the  legislative
history that "[t]his new authority is available to both the
Administrator of the Environmental Protection Agency and the
Secretary of Transportation.'"  Consequently, for events occurring
after passage of the OPA on August 13,  1990, the Agency should
review each oil spill, using the criteria set out  below, before
deciding to refer oil spills to  the iHujl tuaira JJui •»£erra»aat.Jr.
action*.

     Previously, we had only advised  you to check  with this
office on a case-by-case basis in the event 'of an  oil spill that
would be til* basis for an enforcement action.  As  a result of our
experience with recent spills  in Region IV, we provide the
following additional  interim guidance.   Until such time as the
Agency and the Coast Guard conclude a new Section  311 enforcement
MOU, Regions should refer to the Coast  Guard Section  31l(b) (3)
oil spills that:
      1  EPA has successfully argued in administrative and
judicial  forums that  oil spills may also be prosecuted  as
unpermitted discharges  under Section 301(a) and 309 of  the Clean
Water Act.  This  option is -not affected by the OPA changes to
Section 311.

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       • Are less than 100 barrels,-

        Do not involve a repeat violator; and

        Do not occur in any critical or environmentally sensitive
        habitat or water body.

If the Region becomes aware of an oil spill that does not meet
these three criteria, or the coast Guard declines to take action
on the referred spill, please consult with this office on a
proposed course of action.

     Although Regions are not yet delegated the authority to take
administrative penalty action for spills, the Regions nay refer
judicial cases under new Section 311(b)(7) pursuant to existing
delegations.  Because the OPA is a new law, we request that these
first judicial referrals be through EPA Headquarters, rather than
directly-to the Department of Justice.

     Finally, in any oil spill referral to the Coast Guard, or in
any letter from the Agency to the spiller, please review your
present notices and letters to insure that they reflect the
significant OPA changes to the penalties section and procedures
of Section 311.

     The Office of Enforcement and the Coast Guard have begun
discussions on a new Section 311 enforcement MOO, which will
address enforcement responsibilities in any given spill
situation.  Me will keep you informed of our progress with the
Coast Guard.

     Meanwhile, if you have any questions about this additional
guidance, please call me or have your staff call David Drelich
(FTS 382-2949) of my staff.

Attachment

cc: Scott Fulton, OS
    Bruce Diamond, OWPE
    ORC Water Branch Chiefs, Regions I-X

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