Testimony to the United States Senate
Committee on Environment and Public Works
Subcommittee on Fisheries, Wildlife, and Water
Oversight hearing on the implementation of the Clean Water Act
Tuesday, September 16, 2003
Clinical Professor of Law, Rutgers School of Law, Newark
Former Assistant Chief, Environmental Crimes Section,
Department of Justice (1995-99); Assistant U.S. Attorney,
Eastern District of New York (1984-95)
Mr. Chairman, Mr. Ranking Member, Members of the Committee, thank you for considering my comments on the oil industry’s proposal to amend Section 309 of the Clean Water Act to require human endangerment as a prerequisite for criminal negligence. Based on my experiences spanning more than ten years prosecuting environmental crimes cases, including prosecuting negligent Clean Water Act cases, I am submitting this written testimony in opposition to the proposed legislative amendment and to encourage the Committee to reject its proponents’ “smoke and mirrors” argument that Section 309 of the Clean Water Act impedes safety investigations conducted by the National Safety Transportation Board. Recent decisions by the Ninth and Fourth Circuit Courts of Appeals have not changed the standard for prosecuting negligent Clean Water Act cases and, to date, Section 309 has not impeded NSTB investigations.
In the cloak of concern for comprehensive NSTB investigations following oil spills, the oil industry is pressuring members of Congress from oil-rich states to weaken substantially an important, and sparingly used, Clean Water Act criminal provision, Section 309 of the Clean Water Act, which carries misdemeanor penalties for negligently violating the Clean Water Act. In fact, under federal law, section 309 has not interfered and should not interfere with NSTB investigations, and in those precious few cases in which a negligent CWA criminal investigation and a NSTB investigation are proceeding simultaneously, there are procedures available, when appropriate, to ensure that an important and time-sensitive safety concern is fully and expeditiously investigated.
The recent interest in this statutory amendment appears to be the prosecutions of two negligent CWA cases, United States v. Hanousek and United States v. Hong. Neither of these cases, however, represents a departure from the type of negligent CWA prosecutions brought by the Department of Justice since Congress amended the Clean Water Act in 1987 to add Section 309, nor do the decisions affirming the convictions in Hanousek and Hong constitute a departure from well-established criminal negligence law. In each of these cases, neither defendant was prosecuted for what was a simple “accident”, as the oil industry suggests. Indeed, in the case of an “accident” that results from conduct that was reasonable under the circumstances, the type of conduct to which the oil industry refers, no criminal liability would attach under Section 309. It is only when a person causes an event that violates the Clean Water Act, such as a catastrophic oil spill, as a result of his or her failure to exercise the care that a reasonable person would have taken under similar circumstances that the person is subject to negligent CWA prosecution. This is precisely the type of criminally negligent conduct that occurred in the events leading up to the Clean Water Act criminal violations in the Hanousek and Hong cases, and it is the very type of criminal negligence prosecutions Congress contemplated when it enacted Section 309.
A review of the facts in Hanousek and Hong illustrate these points. In Hanousek, the defendant was engaged in rock blasting operations adjacent to what defendant knew was an old pipeline. Hanousek’s predecessor had created a protective work area around the blasting operations to ensure that the pipeline was not compromised during the blasting operations. When Hanousek became the manager of the operations, with full knowledge of the pipeline’s proximity to the blasting operations, he stopped protecting the pipeline. As a result, the pipe broke when workers drove over the pipeline with a backhoe. To make matters even worse, well before Hanousek knew the type of enforcement case the government was contemplating, Hanousek mislead government investigators and hid pieces of the pipeline from investigators. Clearly, the break of the pipeline here was not an unavoidable accident, and Hanousek did not mislead investigators because he knew they were investigating him for criminal negligence. Had Hanousek taken the care that the former manager of the blasting operations took to protect the pipeline, the pipeline would not have broken and Hanousek would not have been subjected to criminal prosecution. It was Hanousek’s failure to exercise the care that a reasonable person would have taken to protect the pipeline under the circumstances, and his subsequent efforts to mislead the government, that resulted in his conviction.
The defendant in Hong acted with the same utter disregard for the environment as did Mr. Hanousek. Hong acquired wastewater treatment facilities in 1993. Two years later, Hong inquired about the purchase of a carbon-filter treatment system for one of his facilities, which lacked a wastewater treatment system altogether. The seller of the system told Hong that the treatment system he was considering was not appropriate for completely untreated wastewater; rather, it was designed only for the final step in the wastewater treatment process. Despite this warning, Hong purchased the system and used it as the sole means of treating wastewater. Employees soon complained to Hong that the system was becoming clogged, and soon thereafter Hong’s employees began discharging untreated wastewater into the sewer system in violation of the company’s discharge permits and in the presence of Hong on several occasions. Certainly Hong’s actions that resulted in untreated wastewater being dumped into the sewer system were not the result of an “accident.” Hong, knowing full well that the treatment system he installed was insufficient for the use he used it for, did not act as a reasonable person would have acted in a similar situation. Indeed, while Hong’s actions could be said to be knowing, warranting a felony prosecution under the Clean Water Act, at a minimum Hong failed to exercise the care to prevent untreated wastewater from being discharged into the sewer system that a reasonable person would have taken in the same situation.
Essentially, Hanousek and Hong do not represent a sea change in negligent Clean Water Act prosecutions; rather, they represent the need for Section 309 to punish the egregious behavior of these defendants whose negligent actions caused environmental damage.
Other noteworthy negligent Clean Water Act prosecutions that involved the discharge of large quantities of petroleum products illustrate further that federal prosecutors have reserved Section 309 for egregious conduct. For example, in the case of the Exxon Valdez oil spill, Exxon of course did not want to lose millions of gallons of product and to spend many times more to remediate the environment. But the “negligent” event that caused one of the worst environmental catastrophes in this country was Exxon’s decision to allow a captain with a history of alcohol abuse to navigate the barge in the Prince William Sound. The Colonial Pipeline spill in the Reedy River is another example of an unwanted, tremendous loss of valuable product and an expensive clean-up that was caused by the “negligent” failure to repair a known weak spot in the pipeline that was carrying the petroleum product. Colonial Pipeline, anxious to move product quickly, yet knowing the risks of over-pressuring the pipeline, made the decision to take the risk and move the petroleum product which the pipeline could not withstand, causing the pipeline to burst and spilling nearly one million gallons of products. If the proposed statutory language were part of Section 309, not one of these cases could have been prosecuted for Clean Water Act negligence because no one was injured nor put at risk of death or serious bodily injury.
Just as there is no basis for the argument that recent case law has somehow changed the standard for Clean Water Act criminal negligence, it is similarly not credible for industry to argue the need for this statutory amendment on the basis that Section 309 impedes NSTB investigations. It is highly unlikely that the rewriting of Section 309 will change a person’s decision not to speak to the government after a catastrophic environmental event. Other penalties might still attach to the conduct that caused the catastrophe, and the uncertainty allegedly created now by Section 309’s negligence provision will still be present based on the threat of other prosecutions, such as prosecution for knowing Clean Water Act violations or obstruction of justice, just to name a couple.
Moreover, the oil industry’s proposed statutory amendment to Section 309 to allow criminal negligence prosecutions only when the result of the violation involves injury or risk of injury to people certainly would not create, in their own words, “an incentive to cooperate in bringing forward information on accident causes”, the goal the oil industry claims it seeks to achieve. To the contrary, with its statutory revision, in the most serious of cases when the need for prompt and complete information (i.e., when people are injured or in serious risk of injury) is most important, workers who fear criminal prosecution might assert their 5th Amendment rights, the very right industry fears impeding NSTB investigations under the current version of Section 309. In fact, this concern is really no concern at all, because in a case in which a criminal investigation is proceeding simultaneously with a NSTB investigation, and there is a necessity to speak to a worker who has asserted his 5th Amendment right that trumps the criminal investigation, the government can immunize that worker and compel his cooperation in the NSTB process. There simply is no reason to amend the negligence provision of Section 309 out of fear of what might happen in a future NSTB investigation in which the Department of Justice is investigating a matter at the same time the NSTB is conducting a safety investigation, an event that has occurred many times in the past without conflict.
Supporters of the legislative amendment also emphasize that “accidents” should not be criminally penalized, and history shows that the Department of Justice has not used Section 309 to “turn clean-up efforts and accident assessment procedures into legal minefields.” Ironically, supporters of this legislation suggest amending the language of Section 309 to allow criminal prosecutions following an “accident” only when such accidents involve injury or risk of injury to the public. Yet if the real concern is prompt and open cooperation with NSTB investigations following an oil spill, for example, wouldn’t the need for a prompt and open NSTB investigation be most important in cases where the public is placed at risk? Why under these circumstances are the proponents of this legislation not concerned with employees’ reluctance to speak because of fear of prosecution? The transparency of their argument is evident: this provision is intended to shield the oil industry from criminal CWA negligence for oil spills because most CWA negligence prosecutions result in extreme environmental damage, but not injury to the public.
Finally, there is a practical reason for rejecting oil industry’s proposed statutory amendment to Section 309. The negligence provision of Section 309 oftentimes benefits defendants by giving prosecutors a lesser offense to which defendants can plead guilty. Without this provision, prosecutors are left only with charging defendants with a Clean Water Act felony for knowing violations of the Act. Thus, in Hong, for example, where there appears to have been ample evidence of knowing conduct, prosecutors would have no discretion to consider a misdemeanor charge for his conduct if the oil industry prevails and, instead, could only charge him with a Clean Water Act felony. Surely this is a result that not even the industry advocating for change desires.
 In an article by two former chiefs of the Department of Justice, Environmental Crimes Section, Ronald Sarachan and Steven Solow, the authors undertake a statistical analysis of the total number of negligence based federal environmental crimes prosecutions compared to the total number of federal environmental crimes prosecuted over a ten year span, from 1987 to 1997. In total, of the 1,436 environmental criminal prosecutions during that decade, only 86, or approximately 6%, of the prosecutions were negligence cases.
 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000).
 242 F.3d 528 (4th Cir. 2001), cert. denied, 112 S.Ct. 60 (2001).
 The emphasis placed on “accident” is obvious given the fact that in the context of oil spills the pollutant discharged into the water – petroleum product – has great value and no petroleum company or transporter of petroleum products want to spill valuable product, unlike other Clean Water Act prosecutions, such as Hong where the discharge is not a product but a waste. But the events that are subject to prior negligence Clean Water Act prosecutions are far from “accidents” as that word is commonly used. Merely because the defendant in an oil spill prosecution never intended nor wanted to discharge the oil does not obviate the facts that lead up to the spill that constitute a deviation from the care that a reasonable person would have exercised in a similar circumstance.