THE AMERICAN WATERWAYS OPERATORS
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
THE CLEAN WATER ACT AND
CRIMINAL LIABILITY FOR OIL POLLUTION
September 16, 2003
The American Waterways Operators (AWO) appreciates the opportunity to submit this statement for the hearing record. AWO is the national trade association representing America’s inland and coastal tugboat, towboat, and barge industry, the largest segment of the U.S.-flag domestic maritime industry. AWO’s 375 member companies include the owners and operators of tugboats, towboats, and barges that move more than 800 million tons of America’s cargo every year, including dry, liquid, containerized and specialty cargoes on the inland river system, the Atlantic, Pacific, and Gulf coasts, and the Great Lakes. The transportation of petroleum and petroleum products is a key segment of our industry’s business: tank barges move 20 percent of the oil that fuels our economy and keeps our cars running and our homes warm. Powerful, state-of-the-art tugboats also provide tanker escort services to facilitate the safe movement of petroleum cargoes in busy ports and harbor approaches.
Chairman Inhofe and Senator Baucus, AWO would first like to thank you for convening this hearing to examine issues related to the Clean Water Act. AWO and its member companies are deeply committed to marine safety and environmental protection. We understand that one of the issues addressed at today’s hearing will be criminal liability for oil spill incidents. We believe that criminal liability, when imposed under OPA 90, should be employed only where a discharge is caused by conduct that is truly “criminal” in nature, i.e., where a discharge is caused by reckless, intentional or other conduct deemed criminal. We agree that the current “negligence” standard in OPA 90 is a lower threshold than traditionally seen for criminal liability. Criminal culpability in the United States typically requires intentional actions or omissions by individuals.
In addition, we are very concerned that responsible operators are exposed to criminal fines and potential imprisonment for maritime transportation-related oil spills due to the application and use of antiquated and unrelated strict criminal liability statutes. Strict criminal liability imposes criminal sanctions without requiring a showing of criminal knowledge, intent or even negligence. AWO and its members are very troubled, as are other responsible, law-abiding maritime interests, by both the Justice Department’s increasing willingness in the post-OPA 90 environment to use strict criminal liability statutes and the increasing attention to criminal enforcement in oil spill incidents. These federal actions imposing strict criminal liability have created an atmosphere of extreme uncertainty for AWO members about how to respond and cooperate with the Coast Guard and other federal agencies in cleaning up an oil spill. Strict criminal liability statutes such as the Migratory Bird Treaty Act (16 U.S.C. 703 et.seq.) and the Refuse Act (33 U.S.C. 407, 411) -- statutes that were enacted at the turn of the century to serve other purposes -- have been used to harass and intimidate the maritime industry, and in effect, have turned every oil spill into a potential crime scene without regard to the fault or intent of companies, corporate officers and employees, and mariners.
The Migratory Bird Treaty Act (MBTA) provides that “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill…any migratory bird…”, a violation of which is punishable by imprisonment and/or fines. Prior to the EXXON VALDEZ oil spill in 1989, the MBTA was primarily used to prosecute the illegal activities of hunters and capturers of migratory birds, as the Congress originally intended when it enacted the legislation in 1918. In the EXXON VALDEZ case itself, prior to the enactment of OPA 90, the MBTA was first used to support a criminal prosecution against a vessel owner in relation to a maritime oil spill, and this “hunting statute” has been used since against the maritime industry. The Refuse Act was enacted over 100 years ago at a time well before subsequent federal legislation essentially replaced it with comprehensive requirements and regulations specifically directed to the maritime transportation of oil and other petroleum products.
· Negligent Vessel Operations. 46 U.S.C. 2302
· Vessel Inspections. 46 U.S.C. 3318
· Carriage of Liquid Bulk Dangerous Cargoes. 46 U.S.C. 3718
· Vessel Load Lines. 46 U.S.C. 5116
· Foreign Commerce Pilotage. 46 U.S.C. 8503(e)
· Ports and Waterways Safety Act. 33 U.S.C. 1232(b)
· Intervention on the High Seas Act. 33 U.S.C. 1481(a)
· Deepwater Port Act of 1974. 33 U. S.C. 1514(a)
· Act to Prevent Pollution from Ships. 33 U.S.C. 1908(a)
Congress, by omitting the Migratory Bird Treaty Act and the Refuse Act from this list of existing statutes modified by OPA 90, apparently did not anticipate or intend their use in the case of maritime oil spills.
In the event of an oil spill, a responsible party not only must manage the cleanup of the oil and the civil liability resulting from the spill, but also must protect itself from the criminal liability that now exists due to the available and willing use of strict criminal liability laws by the federal government. Managing the pervasive threat of strict criminal liability, by its very nature, prevents a responsible party from cooperating fully and completely in response to an oil spill situation. The OPA 90 “blueprint” of prevention and response is no longer clear. The use of the strict criminal liability statutes has undermined the spill prevention and response objectives of OPA 90, the very goals that were established by Congress to preserve the environment, safeguard the public welfare, and promote the safe transportation of oil.
Archaic statutes such as the Migratory Bird Treaty Act and the Refuse Act are unrelated to the regulation and enforcement of oil transport activities and were not included within OPA 90 as one of the many applicable statutes where criminal liability could be found. Without the elimination of the use of such strict liability statutes, the maritime industry cannot avoid exposure to criminal liability, regardless of how diligently it adheres to prudent practice and safe environmental standards. As stated the U.S. Coast Guard’s own environmental enforcement directive, a company, its officers, employees and mariners, in the event of an oil spill “could be convicted and sentenced to a criminal fine even where [they] took all reasonable precautions to avoid the discharge.” (Criminal Enforcement of Environmental Laws, U.S. Coast Guard Commandant Instruction M16201.1 of 30 July, 1997.)
The exposure of mariners and management to criminal liability regardless of fault has had a negative impact on the recruitment and retention of qualified and committed personnel for the maritime transportation of oil and petroleum products. At a 1998 hearing of the Subcommittee on Coast Guard and Maritime Transportation of the House Committee on Transportation and Infrastructure, several working mariners noted this development. One Captain with long experience in the industry indicated that he could not recommend a similar career path to his children because of the uncertainty created by the existence of strict liability. A witness from the management of a company that transports petroleum testified that his company had modified its response protocol and had retained criminal counsel to assist in the event of a spill because of the potential impact of criminal liability on the company and its employees. At conferences held in 2001 and 2002, jointly sponsored by the Coast Guard, industry and labor organizations, criminal liability was identified as one of six factors affecting the recruitment and retention of mariners. The conclusion of the group considering criminal liability was that “(t)he unjustifiably low threshold for prosecution inhibits the recruitment and the retention of mariners.” The group recommended changes in the laws governing criminal liability in the event of oil spills.
Criminal sanctions under OPA 90 should follow the traditional notion of what constitutes criminal acts in this country -- namely, that a crime occurs when a knowing, intentional act is committed. AWO respectfully requests that the Environment and Public Works Committee take the lead on this critical issue by: 1) reaffirming the traditional definition of criminal conduct for prosecutions in oil spill incidents; and, 2) reasserting the preeminent role of OPA 90 as the statute providing the exclusive criminal penalties for oil spills. Such legislation would ensure increased cooperation and responsiveness, while not diluting the deterrent effect of stringent criminal penalties imposed under OPA 90 itself.
Thank you again for the opportunity to present this statement for the hearing record.