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Orgulf Transp. Co. v. United States

Citation: 19 ELR 21294
No. No. C88-0049P(J), 711 F. Supp. 344/30 ERC 1921/(W.D. Ky., 04/12/1989)

The court holds that the Environmental Protection Agency's (EPA's) regulation defining an oil spill that may be harmful as that which creates a sheen is within the Agency's authority under § 311(b)(3) of the Federal Water Pollution Control Act (FWPCA). Approximately five gallons of diesel fuel spilled into the Ohio River during the refueling of a towboat operated by plaintiff. The court first holds that with the 1978 FWPCA amendments, Congress empowered the President to determine the quantity of oil which if discharged may be harmful, and the President delegated this authority to EPA. Actual harm to the environment became irrelevant to § 311's prohibition of discharges, leaving the only pertinent inquiry whether the spill was in a harmful quantity as determined by EPA. EPA has properly determined that a spill of oil that creates a sheen is a quantity that may be harmful. The court next holds that the 1978 FWPCA amendments were not conditioned on the promulgation of new regulations. Finally, the court holds that even de minimis spills are prohibited by FWPCA § 311.

Counsel for Petitioner
James B. Harrison, William R. Ellis
Wood & Lamping
800-900 Tri-State Bldg., 432 Walnut St., Cincinnati OH 45202
(513) 852-6000

Counsel for Respondent
Peter W. Colby
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Lee R. Tyner
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St. SW, Washington DC 20460
(202) 382-2090