[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Extensions of Remarks]
[Pages E1367-E1368]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        STRICT CRIMINAL LIABILITY REFORM FOR OIL SPILL INCIDENTS

                                 ______
                                 

                           HON. DAVID VITTER

                              of louisiana

                    in the house of representatives

                        Thursday, July 27, 2000

  Mr. VITTER. Mr. Speaker, I am pleased today with Congressmen Coble 
and Clement to introduce legislation to eliminate the application of 
strict criminal liability for maritime transportation-related oil 
spills. Contrary to the objectives of the Oil Pollution Act of 1990, 
commonly referred to as OPA90, strict criminal liability serves to 
undermine the safe and reliable maritime transportation of oil 
products, and prevents timely, effective and cooperative cleanup 
operations in the diminishing number of situations when an oil spill 
occurs.
  Through comprehensive congressional action just a decade ago that led 
to the enactment and implementation of OPA90, the United States has 
successfully reduced the number of oil spills in the maritime 
environment and has established a cooperative public/private 
partnership to respond effectively to the diminishing number of 
situations when an oil spill occurs. The Congress, though the enactment 
of OPA90, carefully balanced the imposition of stronger criminal and 
civil penalties with the need to promote enhanced cooperation in spill 
prevention and response efforts. In so doing, the Congress clearly 
enumerated the circumstances where stringent criminal penalties could 
be imposed in maritime oil spill incidents.
  But this carefully crafted approach is being undermined in practice. 
Antiquated, unrelated ``strict liability'' statutes that do not require 
any showing of ``knowledge'' or ``intent''--specifically--the Migratory 
Bird Treaty and the Refuse Act--are increasingly utilized as a basis 
for criminal investigation and prosecution for oil spill incidents. As 
stated in a U.S. Coast Guard directive, a company and employees, 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''. Such turn-of-the-century statutes as the Migratory Bird 
Treaty Act and Refuse Act, in effect, have turned every oil spill into 
a potential crime scene without regard to fault or intent, and thus 
have undermined the cooperation and responsiveness that Congress sought 
to foster when it enacted OPA90.

[[Page E1368]]

  Furthermore, strict criminal liability forces responsible members of 
the marine transportation industry to face and extreme dilemma in the 
event of an oil spill--provide less than full cooperation and response 
as criminal defense attorneys will certainly direct, or cooperative 
full despite the risk of criminal prosecution that would result from 
any additional actions or statements made during the course of the 
spill response. The only method available to companies and their 
employees to avoid the risk of criminal lability completely is to get 
out of the Marine oil transport business altogether.
  Mr. Speaker, in May 1998, the House Coast Guard and Maritime 
Transportation Subcommittee conducted oversight hearing on criminal 
lability for oil pollution. The Coast Guard, the primary federal 
maritime agency tasked with the implementation and enforcement of 
OPA90, testified at that hearing that it does not rely on strict 
criminal liability statutes in assessing culpability for oil split 
incidents. With the support of other organizations, including the 
Chamber of Shipping of America, INTERTANKO, the Transportation 
Institute, and the Water Quality Insurance Syndicate (WQIS), American 
Waterways Operators (AWO) and two tank vessel captains testified as to 
the adverse impact that strict criminal liability has on the oil spill 
prevention and response objectives of OPA90. Notably, one tank vessel 
captain observed that ``strict criminal liability does not make [him] 
do [his] job better; it only produces counterproductive stress''. He 
continued by stating the following: ``Because of the current [criminal 
lability'' situation I cannot and will not encourage my children to 
follow in my footsteps. Nor can I encourage anyone else to enter the 
marine petroleum transportation business. Yet the industry needs good 
people. Strict criminal liability is a tremendous deterrent to anyone 
considering entering the industry at this time.''
  Similarly, the other tank vessel captain testified that responsible 
vessel owners and operators do everything humanly possible to avoid 
accidents, but that ``the sea being a place of infinite peril, if 
accidents occur, despite human precautions, we must use all of the 
marines' skills to contain damage and to get the oil out of the 
water''. He continued by stating that the ``increased emphasis on 
applying criminal sanctions to incidents where oil gets into the water, 
regardless of whether the spill is caused by reckless or grossly 
negligent human actions, will undermine our ability to respond 
successfully in the case of the spill.'' The captain further stated 
that the ``masters, officers and crew of tank vessels should be the 
best in the business'', but that ``if they are driven from this area by 
criminal enforcement policies, we will end up with mediocrity where we 
should have excellence.'' I concur with these observations. Strict 
criminal liability does not improve the marine transportation 
industry's ability to attract or retain experienced vessel masters and 
crews, and does not further the oil spill prevention and response goals 
of OPA90.
  Mr. Speaker, again in March 1999, the House Coast Guard and Marine 
Transportation Subcommittee and the House Water Resources and 
Environment Subcommittee conducted an oversight hearing to review the 
implementation of OPA90 on the 10th anniversary of the EXXON VALDEZ oil 
spill in Alaska. Notably, the issue of criminal liability in oil spill 
incidents are raised several times during the hearing where AWO, the 
American Petroleum Institute (API), INTERTANKO, and the Chamber of 
Shipping of America all stated that the threat of strict criminal 
liability of oil pollution incidents requires immediate reform and that 
the issue is their top legislative priority.
  The Coast Guard recently confirmed that its ``criminal prosecution of 
environmental crimes is reserved for only the most egregious cases, 
where evidence of willful misconduct, culpable negligence, failure to 
report a spill, or attempts to falsify records, is considered with 
significant harm to the environment or the thread of such harm.'' 
However, despite the fact that the ``Coast Guard has never a case based 
on strict liability violations'', other agencies, including the U.S. 
Department of Justice, have prosecuted at least four vessel pollution 
cases since the enactment of OPA90 using strict criminal liability 
statutes. The availability and use of such statutes continues to 
undermine cooperative and effective oil spill prevention and response 
efforts.
  Mr. Speaker, the legislation we are introducing today will not change 
the tough criminal sanctions, that were imposed in OPA90. Rather, the 
legislation will reform the preeminent role of OPA90 as the statute 
which provides the exclusive criminal penalties for oil spills. In so 
doing, it will eliminate the unjustified use of strict liability 
statutes that undermine the very objectives which OPA90 sought to 
achieve, namely to enhance the prevention of and response to oil 
spills.

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