U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   09/16/2003
Jim Hall, Principal Partner
Hall & Associates

Clean Water Act oversight.

Mr. Chairman, Mr. Ranking Member, Members of the Committee, thank you for the invitation to testify before you today. I am pleased to be here to share my experience with transportation safety, and its particular relevance to aspects of the Clean Water Act (CWA).

Briefly, let me spend a few moments on my previous role at the National Transportation Safety Board (NTSB) and on the Board's overall mission. I was nominated as member of the NTSB by President Bill Clinton in 1993, and subsequently served as the Board's Chairman from June 1994 to January 2001. I currently serve as President of Hall & Associates, where I advise a host of government and private clients on transportation safety and security issues.

Ever since Congress created the NTSB, the Safety Board has served as the 'eyes and ears' of the American people whenever there is a significant transportation incident. The mission, then and now, is to impartially and thoroughly investigate accidents to determine their cause, with the primary goal of preventing future accidents and providing Americans with continued confidence in the nation's many transportation modes. The Board issues scores of recommendations to government and industry every year. In making recommendations, the Board looks for, and historically achieves, a high level of voluntary compliance.

Likewise, NTSB investigations rely in large part on the voluntary and unpaid assistance of companies involved in accidents to understand what went wrong and how to fix it. This system of voluntary cooperation works exceedingly well, and the goal – a safer transport system – is considered so important to our national interest that Congress has given NTSB accident investigations priority over all other federal investigations.

As Chairman, I often said our work focused on a single, very simple, point – the more information we have, the safer we all can be. During my tenure at NTSB, I was never bashful in speaking out about issues that sometimes inadvertently separate our government from that focus. The threat of criminal sanction for purely accidental behavior has the real potential to stifle cooperation, to stifle the ready development of information necessary to understand an occurrence and prevent its repetition.

That has a price, potentially high, and would need to be offset by the possibility that punishing pure accidents reduces their likelihood. I have seen no evidence for that proposition, and indeed, several successful safety programs sponsored by the Department of Transportation proceed on exactly the opposite presumption.

As the Members of this Committee are well aware, every mode of transportation is closely regulated for safety purposes under a variety of statutes, and each of these provides for both civil and criminal sanction for some classes of regulatory violation. Typically criminal violations are reserved for knowing violations – activities such as falsification of records or safety tests, the deliberate violation of regulatory standards, or willful or reckless behavior that leads to injury or death, or destruction of property.

However, one statute, the Clean Water Act (CWA), provides criminal penalties, including fines and imprisonment, for simple negligence. Simple negligence, as defined, does not require intent, or knowledge, or even willful or reckless disregard of norms. As such, it easily is charged and potentially just as easily proved in accidents where all due care was thought to have been exercised. Potentially, an entity believing that it is exercising due caution and using current technology and modern procedures may still find that the company, its supervisors, or its operating employees will be charged criminally, if a water source becomes polluted. Wholly apart from the impact that such a regime has on the ability of a company to attract top notch employees and managers, its implications for safety investigations and ultimately safe regulation are problematical at very best.

During my tenure at the NTSB, I became increasingly concerned with the trend towards the criminalization of any or all transportation accidents. Let me be clear, there are “accidents” where criminal prosecution is warranted and even the preferred course of action. While traditional criminal law theory requires a finding that one intended the consequences of the criminal act, it has long been accepted, and I accept, the proposition that wanton disregard of behavioral norms suffices to sustain a criminal prosecution, even if the consequences of the behavior were not intended, indeed even if they were as horrifying to the perpetrator as to the rest of us. No one hesitates to prosecute drunken driving as negligent homicide. But what good would come of prosecuting a driver who, blinded by the sun, lost track of the vehicle in front him and did harm identical to that of the drunk? How best to answer the questions raised by these issues became the major focus of a symposium on Transportation Safety and the Law that the NTSB convened under my direction in April of 2000. This conference, attended by more than 400 representatives of public, private, and academic organizations, covered a host of important issues. However, discussion about when an accident warrants criminal prosecution was a dominant topic.

Two general themes emerged out of that symposium that bear repeating.

First, transportation safety is increasingly dependent on being able to spot trends, to see problems as they arise, to anticipate failures from sophisticated “data mining,” and from the sometimes not-so-sophisticated self-disclosure of the near misses. This is an enormously productive field that is being pursued by almost all the regulatory agencies. And these agencies often include, as part of this type of program, some form of prosecutorial immunity for persons and companies who participate.

FAA, for example, treats self-disclosure from pilots, or data derived from quick access flight recorders as exempt from use in enforcement actions based on simple violations discovered. Of course the agency doesn’t waive the right to proceed against knowing violations, and may even do so criminally. What agencies do say is we won’t proceed against simple accidental behavior. Without such a promise, the data wouldn’t be forthcoming, and safety would be compromised.

And that is exactly the issue with the Clean Water Act. Simple negligence can be treated as a criminal act, punishable by imprisonment. When accident investigators arrive on scene to find out what has occurred, they are in no way empowered to grant any immunity from prosecution for pure mistakes. So if there has been waterway contamination, prevention and understanding will take a back seat to legal maneuvering.

If the NTSB hopes to make timely recommendations based on their investigations, cooperation is necessary. NTSB recommendations form a basis by which the industry involved in the accident can make changes to avoid a re-occurrence of the incident. And avoiding future incidents provides more value to the public than attempting to prosecute a company or an employee for an accident.

A second and related theme that developed at the NTSB symposium was the belief that, while criminal enforcement can be an important tool, it should be directed towards intentional or reckless behavior rather than non-intentional conduct. Criminal enforcement, strong civil and administrative remedies, and an independent investigative body such as the NTSB, are all essential tools in protecting public safety, our transportation systems, and the environment. Criminal penalties do deter intentional conduct, but have a much diminished and unproven relationship to preventing purely accidental behavior.

Criminal enforcement, indiscriminately and routinely applied to ordinary industrial accidents, can deny safety regulators the very information they need to decide how to prevent similar accidents in the future. The rush to assess blame and punish those connected with the accident inevitably forces this vital information behind closed doors as the prosecution and the defendants prepare for a potential criminal trial. The intent should be to promote cooperation rather than threaten parties with punishment for things over which they had no control.

The language of the CWA, prosecutors’ increasing use of the criminal negligence provisions of the CWA, and new views of the CWA taken by the courts have all combined to deter post-event industry cooperation when CWA criminal violations are potentially involved.

Individuals engaged in industrial activities that bring them in contact with water face a difficult proposition. How should companies respond to parallel criminal and accident investigations? In that situation, companies face conflicting demands – on one hand, they need to be responsive and open to the public, and on the other, they the need to fairly protect their employees. That was one of the questions raised at our symposium, and I still cannot adequately answer that question.

Another issue is the effect that the possibility of criminal prosecution will have on hiring and retaining a skilled workforce. Although I don't have direct experience, this was a common complaint that I heard while at the NTSB, and one that is intuitive. If skilled employees are to be subject to criminal charges for their role in an accident despite their training and the technologies at their disposal, then they will be less likely to engage in those occupations. These positions would then have to be filled with less qualified personnel or not filled at all, leaving the remaining employees over-extended. This could have a disastrous outcome and would be counter-productive to the intent of the CWA.

Defense attorneys representing firms and individuals facing criminal liability for accidental behavior often advise prudent reluctance in providing information to the NTSB. Other times, the NTSB arrives at an accident scene after a criminal investigation has already begun in earnest, and simply inspecting evidence can be extremely difficult for Board investigators.

The bottom line is if the NSTB can do a thorough investigation, and can complete its investigation, and have cooperation in that investigation, potential larger problems can be corrected before they cause future accidents or incidents. What’s more, these problems can be understood in a broader context, and solutions can have an industry-wide application through consensus reached with the regulators and the firms involved.

However, a growing fear of criminal prosecution is rapidly compromising industry’s willingness to cooperate in safety investigations, and, while this is understandable, it is in the long run contrary to the interests of government and industry alike. What is needed is a widespread agreement within the government not to proceed criminally for purely accidental behavior, particularly where firms have agreed to cooperate fully with the government’s subsequent safety investigation. And amendment of the Clean Water Act to make clear that simple negligence is not sufficient for criminal prosecution is probably now necessary to recover from the tremors caused by recent court cases, which have chilling implications for supervisors, and managers who may be remote in time and place from the activities giving rise to negligent spill.

I do not believe in a model of enforcement that immediately sends all the parties, public and private, before a magistrate. I do believe in a robust regulatory regime with adequate civil, administrative, and criminal teeth to ensure compliance. At the same time, it is clearly counter-productive to the greater collective good to criminalize ordinary industrial accidents.

While this issue deserves a thoughtful review by this Committee, I submit that this one provision of the CWA clearly is inconsistent with the larger body of transportation law, and the criminalization of simple negligence really has no place in a statute not lacking for "teeth."

My primary concern is information, and more of it. Investigators and regulators need access to relevant information to do their jobs. To an increasing extent, information is becoming harder to obtain which impacts the Board's ability to investigate and make recommendations. We are all safer and more secure when we can learn from these incidents, and implement improved technologies and procedures as a result.

In conclusion, it is my conviction that the balance between appropriately pursuing individual wrong-doers on one-hand and the broader purpose of accident investigation and prevention on the other hand, tips more and more away from a focus on prevention. We follow this road at our long-term peril.

When there is no malfeasance, but merely an accident, our overriding concern should be fixing the problem, not the blame. By focusing criminal prosecutions where they are most appropriate, we protect the rights of workers, address scarce government resources in the most useful way, increase compliance and cooperation, and find answers more swiftly that can, in turn, be applied to prevention. I urge the Committee to think through this issue, and have no doubt the net result of a positive change in this provision will be increased safety, continued reduction in the number of incidents, and greater protection of our fellow citizens and the environment.

I thank the Committee for its consideration in allowing me to testify today. I would be happy to answer any questions that you may have.