Executive Orders Regarding Federal Procurement and Oil Discharges

Executive Orders Regarding Federal Procurement and Oil Discharges¹

On September 10, 1973, President Nixon issued Executive Order 11738, which provides that federal contracts, grants, and loans may not be awarded to persons or facilities violating the Federal Water Pollution Control and Clean Air Acts. This directive supersedes Order 11602 of June 29, 1971, which applied only to the Clean Air Act, and restates that order's provisions regarding exemption procedures, designation of convicted persons and facilities, and enforcement.

The order directs the Administrator of the Environmental Protection Agency to prepare and publish a list of persons and facilities which, despite conviction for violation of § 113(c)(1) of the Clean Air Act or § 309(c) of the FWPCA, have failed to correct the circumstances which led to their conviction. Persons on this list would be ineligible to receive federal contracts, grants, or loans. A clause requiring compliance with both statutes must be included in all federally awarded cntracts, grants, and loans. Federal contract and grant compliance officers are instructed to report suspected violations immediately, for enforcement action by the Department of Justice.

The order confers wide discretion on agencies to grant exemptions on a finding by the agency head that the national interest so requires. The agency head must promptly notify the EPA Administrator of the exemption and of the justification for it, and must review the necessity for each such exemption annually or upon the request of the Administrator. Exemptions may be granted for periods not to exceed one year, but are renewable upon a new determination by the agency head.

The Administrator himself may exempt any or all federal agencies with respect to any class or classes of contracts, grants, or loans which involve less than specified dollar amounts, have a minimal potential impact upon the environment, or involve persons who are not prime contractors or direct recipients of federal assistance. The Administrator must notify the President and the Congress annually of all exemptions granted or in effect.

Order 11738 greatly expands the federal role in water pollution control, but its effectiveness in this regard will depend largely on the use made of the exemption provisions. Prior experience under the superseded Order 11602 offers little indication, since EPA and other federal agencies had not completed issuing regulations to implement it when the new order was promulgated.

On August 3, 1973, the President issued Executive Order 11735, assigning to the Administrator of EPA and other executive officers various functions relating to discharges of oil and hazardous substances. Authority in this area is vested in the President by § 311 of the Federal Water Pollution Control Act Amendments of 1972. The order supersedes E.O. 11548, of July 20, 1970, under which the responsibilities now given to EPA were assigned temporarily to the Secretary of the Interior pending creation of EPA by Reorganization Plan No. 3. The new executive order thus formalizes what has been the administrative status quo for almost three years.

Under the order the Administrator is authorized to determine the quantity of oil or other hazardous substance and the circumstances such as time and location, under which a discharge harmful to the public health and welfare might result. The Administrator is empowered to abate through court action any actual or threatened discharge from non-transportation-related onshore or offshore facilities. He is also directed to establish procedures for preventing and containing discharges and for determining what chemicals should be used to disperse a spill.

These same abatement, prevention, and containment powers are given to the Secretary of Transportation regarding discharges from vessels and transportation-related facilities. The Secretary is in addition authorized to inspect vessels carrying oil, to arrest persons involved to an illegal discharge, and to administer the revolving fund established under § 311 (k) of the Act. The Administrator and the Secretary are made jointly responsible for establishing removal procedures for discharges and for directing the removal operations. The order also delegates to these two officers the authority to select ports for the establishment of emergency task forces to remove or destroy vessels causing a discharge, and to assess civil penalties in connection with enforcement.

The Federal Maritime Commission is directed to issue regulations governing proof of financial responsibility to meet possible liability to the United States for discharges, and CEQ is to prepare a national contingency plan for the removal of oil and hazardous substances in the event of a harmful discharge. Each federal agency having responisibilities under this plan is authorized to aid in such removal, while the Coast Guard remains the "appropriate agency" for receiving notice of oil and hazardous substances discharges.

1. ELR 45014.

Executive Orders Regarding Federal Procurement and Oil Discharges1

Executive Orders Regarding Federal Procurement and Oil Discharges¹