%t)—& 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 •»Łerra»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. ------- - 2 - • 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 ------- |