Directives Affected - CI_16460

to reference (b) (47384 F.R/Vol. 59, No.178/Thursday, Sept. 15, 1994) regarding specific

action that may be taken to prevent or mitigate the threat or effect of a substantially harmful

discharge of oil or a hazardous substance and by providing guidance for On-Scene

Coordinators on when and when not to invoke the provisions of Section 311(c)(2) of

FWPCA. This guidance will be incorporated into new Volume IX of the Marine Safety

Manual (Marine Environmental Protection) and into the next revision of reference (c).

BACKGROUND.

Reference (a) states "if a discharge, or a substantial threat of a discharge, of oil or a

hazardous substance from a vessel, offshore facility, or onshore facility is of such a

size or character as to be a substantial threat to the public health or welfare of the

United States (including but not limited to fish, shellfish, wildlife, other natural

resources, and the public and private beaches and shorelines of the United States),

the President shall direct all Federal, state, and private actions to remove the

discharge or to mitigate or prevent the threat of the discharge" without regard to any

other provision of law governing contract procedures or employment of personnel

by the Federal Government.

Reference (b) provides for the OSC to be solely responsible for the determination of

whether a substantial threat to public health or welfare exists.

DISCUSSION.

The intent of reference (a) is to provide the OSC with emergency authority to bypass

the FAR and the normal agency contracting process and to execute contracts with

response resources when it is necessary to protect human health and welfare from

substantial harm, or the threat of substantial harm, caused by a discharge of oil or

hazardous substances. It is contrary to the intent of Congress to use this authority to

bypass the contracting process for responding to a discharge which does not

substantially harm, or pose a substantial threat to, public health or welfare. The

OPA 90 Conference Report (House Conf. Rep. No. 101-653) specifically referred to

the EXXON VALDEZ, AMERICAN TRADER, and MEGA BORG discharges in

1990 when discussing the "substantial harm" and "threat of substantial harm"

provisions of reference (a).