A REVIEW OF FEDERAL AND STATE LAW CONCERNING REPORTABLE DISCHARGES OF OIL

Abstract

ABSTRACT As originally enacted, Section 311 of the Clean Water Act required promulgation of regulations governing the discharge of harmful quantities of oil into or upon U.S. navigable waters, shorelines, and waters of the contiguous zone. The result was the “sheen test” trigger for notification of oil discharges (40 CFR Part 110). Since 1970, this test has been sustained in the courts over a number of objections. The Clean Water Act does not prevent states from imposing additional requirements concerning oil discharge prevention in waters within their own boundaries. Some states have addressed the problem of oil pollution simply through water quality standards or prohibiting discharges that cause a nuisance or harmful effect. In other cases, they have regulated discharges from different types of pollution sources, such as port facilities or vessels. In recent years, some state legislatures have enacted specific laws to deal with oil spills, including provisions that prohibit certain discharges, require spill reporting, and establish compensation programs. This paper discusses the sheen test and other approaches to reportable discharges of oil suggested by state law. Included are a review of federal case law on the subject and a review of standards in selected state statutes.