[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7841-S7843]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BREAUX:
  S. 2944. A bill to clarify that certain penalties provided for in the 
Oil Pollution Act of 1990 are the exclusive criminal penalties for any 
action or activity that may arise or occur in connection with certain 
discharges of oil or a hazardous substance; to the Committee on 
Environment and Public Works.


        Strict Criminal Liability Reform for Oil Spill Incidents

  Mr. BREAUX. Mr. President, I am pleased to introduce legislation to 
address a long-standing problem which adversely affects the safe and 
reliable maritime transport of oil products. The legislation I am 
introducing today will eliminate the application and use of strict 
criminal liability statutes, statutes that do not require a showing of 
criminal intent or even the slightest degree of negligence, for 
maritime transportation-related oil spill incidents.
  Through comprehensive Congressional action that led to the enactment 
and implementation of the Oil Pollution Act of 1990, commonly referred 
to as ``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 in the 
diminishing number of situations when an oil spill occurs. Nonetheless, 
over the past decade, the use of the unrelated strict criminal 
liability statutes that I referred to above has undermined the spill 
prevention and response objectives of OPA90, the very objectives that 
were established by the Congress to preserve the environment, safeguard 
the public welfare, and promote the safe transportation of oil. The 
legislation I am introducing today will restore the delicate balance of 
interests reached in OPA90, and will reaffirm OPA90's preeminent role 
as the statute providing the exclusive criminal penalties for oil spill 
incidents.
  As stated in the 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''. Accordingly, responsible operators in my home state of 
Louisiana and elsewhere in the United States who transport oil are 
unavoidably exposed to potentially immeasurable criminal fines and, in 
the worst case scenario, jail time. Not only is this situation unfairly 
targeting an industry that plays an extremely important role in our 
national economy, but it also works contrary to the public welfare.
  Most liquid cargo transportation companies on the coastal and inland 
waterway system of the United States have embraced safe operation and 
risk management as two of their most important and fundamental values. 
For example, members of the American Waterways Operators (AWO) from 
Louisiana and other states have implemented stronger safety programs 
that have significantly reduced personal injuries to mariners. Tank 
barge fleets have been upgraded through construction of new state-of-
the-art double hulled tank barges while obsolete single skin barges are 
being retired far in advance of the OPA90 timetable. Additionally, AWO 
members have dedicated significant time and financial resources to 
provide continuous and comprehensive education and training for vessel 
captains, crews and shoreside staff, not only in the operation of 
vessels but also in preparation for all contingencies that could occur 
in the transportation of oil products. This commitment to marine safety 
and environmental protection by responsible members of the oil 
transportation industry is real. The industry continues to work closely 
with the Coast Guard to upgrade regulatory standards in such key areas 
as towing vessel operator qualifications and navigation equipment on 
towing vessels.
  Through the efforts of AWO and other organizations, the maritime 
transportation industry has achieved an outstanding compliance record 
with the numerous laws and regulations enforced by the Coast Guard. Let 
me be clear: responsible carriers, and frankly their customers, have a 
``zero tolerance'' policy for oil spills. Additionally, the industry is 
taking spill response preparedness seriously. Industry representatives 
and operators routinely participate in Coast Guard oil spill crisis 
management courses, PREP Drills, and regional spill response drills. 
Yet despite all of the modernization, safety, and training efforts of 
the marine transportation industry, their mariners and shoreside 
employees cannot escape the threat of criminal liability in the event 
of an oil spill, even where it is shown that they ``took all reasonable 
precautions to avoid [a] discharge''.
  As you know, in response to the tragic Exxon Valdez spill, Congress 
enacted OPA90. OPA90 mandated new, comprehensive, and complex 
regulatory and enforcement requirements for the transportation of oil 
products and for oil spill response. Both the federal government and 
maritime industry have worked hard to accomplish the legislation's 
primary objective--to provide greater environmental safeguards in oil 
transportation by creating a comprehensive prevention, response, 
liability, and compensation regime to deal with vessel and facility oil 
pollution. And OPA90 is working in a truly meaningful sense. To prevent 
oil spill incidents from occurring in the first place, OPA90 provides 
an enormously powerful deterrent, through both its criminal and civil 
liability provisions. Moreover, OPA90 mandates prompt reporting of 
spills, contingency planning, and both cooperation and coordination 
with federal, state, and local authorities in connection with managing 
the spill response. Failure to report and cooperate as required by 
OPA90 may impose automatic civil penalties, criminal liability and 
unlimited civil liability. As a result, the number of domestic oil 
spills has been dramatically reduced over the past decade since OPA90 
was enacted. In those limited situations in which oil spills 
unfortunately occurred, intensive efforts commenced immediately with 
federal, state and local officials working in a joint, unified manner 
with the industry, as contemplated by OPA90, to clean up and report 
spills as quickly as possible and to mitigate to the greatest extent 
any impact on the environment. OPA90 has provided a comprehensive and 
cohesive ``blueprint'' for proper planning, training, and resource 
identification to respond to an oil spill incident, and to ensure that 
such a response is properly and cooperatively managed.
  OPA90 also provides a complete statutory framework for proceeding 
against individuals for civil and/or criminal penalties arising out of 
oil spills in the marine environment. When Congress crafted this Act, 
it carefully balanced the imposition of stronger criminal and civil 
penalties with the need to promote enhanced cooperation among all of 
the parties involved in the spill prevention and response effort. In so 
doing, the Congress clearly enumerated the circumstances in which 
criminal penalties could be imposed for actions related to maritime oil 
spills, and added and/or substantially increased criminal penalties 
under the related laws which comprehensively govern the maritime 
transportation of oil and other petroleum products.

  The legislation we are introducing today will not change in any way 
the tough criminal sanctions that were imposed in OPA90. However, 
responsible, law-abiding members of the maritime industry in Louisiana 
and elsewhere are concerned by the willingness of the Department of 
Justice and other federal agencies in the post-OPA90 environment to use 
strict criminal liability statutes in oil spill incidents. As you know, 
strict liability imposes criminal sanctions without requiring a showing 
of criminal knowledge, intent or even negligence. These federal actions 
imposing strict liability have created an atmosphere of extreme 
uncertainty for the maritime transportation industry about how to 
respond to and cooperate with the Coast Guard and other federal

[[Page S7842]]

agencies in cleaning up an oil spill. Criminal culpability in this 
country, both historically and as reflected in the comprehensive OPA90 
legislation itself, typically requires wrongful actions or omissions by 
individuals through some degree of criminal intent or through the 
failure to use the required standard of care. However, Federal 
prosecutors have been employing other antiquated, seemingly unrelated 
``strict liability'' statutes that do not require a showing of 
``knowledge'' or ``intent'' as a basis for criminal prosecution for oil 
spill incidents. Such strict criminal liability statutes as the 
Migratory Bird Treaty Act and the Refuse Act, 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) (16 U.S.C. 703 et seq.) 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 MBTA in 1918. In the Exxon 
Valdez case itself, and prior to the enactment of OPA90, 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 ever since against the maritime industry. The ``Refuse Act'' (33 
U.S.C. 407, 411) 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. Such 
strict liability statutes are unrelated to the regulation and 
enforcement of oil transportation activities, and in fact were not 
included within the comprehensive OPA90 legislation as statutes in 
which criminal liability could be found. With the prosecutorial use of 
strict liability statutes, owners and mariners engaged in the 
transportation of oil cannot avoid exposure to criminal liability, 
regardless of how diligently they adhere to prudent practice and safe 
environmental standards. Although conscientious safety and training 
programs, state-of-the-art equipment, proper operational procedures, 
preventative maintenance programs, and the employment of qualified and 
experienced personnel will collectively prevent most oil spills from 
occurring, unfortunately spills will still occur on occasion.
  To illustrate this point, please permit me to present a scenario that 
highlights the dilemma faced by the maritime oil transportation 
industry in Louisiana. Imagine, if you will, that a company is 
operating a towing vessel in compliance with Coast Guard regulations on 
the Mississippi River on a calm, clear day with several fully laden 
tank barges in tow. Suddenly, in what was charted and previously 
identified to be a clear portion of the waterway, one of the tank 
barges strikes an unknown submerged object which shears through its 
hull and causes a significant oil spill in the river. Unfortunately, in 
addition to any other environmental damage that may occur, the oil 
spill kills one or more migratory birds. As you know, under OPA90 the 
operator must immediately undertake coordinated spill response actions 
with the Coast Guard and other federal, state, and local agencies to 
safeguard the vessel and its crew, clean up the oil spill, and 
otherwise mitigate any damage to the surrounding environment. The 
overriding objectives at this critical moment are to assure personnel 
and public safety and to clean up the oil spill as quickly as possible 
without constraint. However, in the current atmosphere the operator 
must take into consideration the threat of strict criminal liability 
under the Migratory Bird Treaty Act and the Refuse Act, together with 
their attendant imprisonment and fines, despite the reasonable care and 
precautions taken in the operation and navigation of the tow and in the 
spill response effort. Indeed, in the Coast Guard's own environmental 
enforcement directive, the statement is made that ``[t]he decision to 
commit the necessary Coast Guard resources to obtain the evidence that 
will support a criminal prosecution must often be made in the very 
early stages of a pollution incident.'' Any prudent operator will 
quickly recognize the dilemma in complying with the mandate to act 
cooperatively with all appropriate public agencies in cleaning up the 
oil spill, while at the same time those very agencies may be conducting 
a criminal investigation of that operator. Vessel owners and their 
employees who have complied with federal laws and regulations and have 
exercised all reasonable care should not continue to face a substantial 
risk of imprisonment and criminal fines under such strict liability 
statutes. Criminal liability, when appropriately imposed under OPA90, 
should be employed only where a discharge is caused by conduct which is 
truly ``criminal'' in nature, i.e., where a discharge is caused by 
reckless, intentional or other conduct deemed criminal by OPA90.
  As this scenario demonstrates, the unjustified use of strict 
liability statutes is plainly undermining the very objectives which 
OPA90 sought to achieve, namely to enhance the prevention of and 
response to oil spills in Louisiana and elsewhere in the United States. 
As we are well aware, tremendous time, effort, and resources have been 
expended by both the federal government and the maritime industry to 
eliminate oil spills to the maximum extent possible, and to plan for 
and undertake an immediate and effective response to mitigate any 
environmental damage from spills that do occur. Clearly unwarranted and 
improper prosecutorial use of strict liability statutes is having a 
``chilling'' effect on these cooperative spill prevention and response 
efforts. Indeed, even if we were to believe that criminal prosecution 
only follows intentional criminal conduct, the mere fact that strict 
criminal liability statutes are available at the prosecutor's 
discretion will intimidate even the most innocent and careful operator. 
With strict liability criminal enforcement, responsible members of the 
maritime transportation industry are faced with an extreme dilemma in 
the event of an oil spill--provide less than full cooperation and 
response as criminal defense attorneys will certainly direct, or 
cooperate fully despite the risk of criminal prosecution that could 
result from any additional actions or statements made during the course 
of the spill response. Consequently, increased criminalization of oil 
spill incidents introduces uncertainty into the response effort by 
discouraging full and open communication and cooperation, and leaves 
vessel owners and operators criminally vulnerable for response actions 
taken in an effort to ``do the right thing''.

  In the maritime industry's continuing effort to improve its risk 
management process, it seeks to identify and address all foreseeable 
risks associated with the operation of its business. Through fleet 
modernization, personnel training, and all other reasonable steps to 
address identified risks in its business, the industry still cannot 
manage or avoid the increased risks of strict criminal liability 
(again, a liability that has no regard to fault or intent). The only 
method available to companies and their officers to avoid the risk of 
criminal liability completely is to divest themselves from the maritime 
business of transporting oil and other petroleum products, in effect to 
get out of the business altogether. Furthermore, strict liability 
criminal laws provide a strong disincentive for trained, highly 
experienced mariners to continue the operation of tank vessels, and for 
talented and capable individuals from even entering into that maritime 
trade. An earlier editorial highlighted the fact that tugboat captains 
``are reporting feelings of intense relief and lightening of their 
spirits when they are ordered to push a cargo of grain or other dry 
cargo, as compared to the apprehension they feel when they are staring 
out of their wheelhouses at tank barges'', and ``that the reason for 
this is very obvious in the way that they find themselves instantly 
facing criminal charges . . . in the event of a collision or grounding 
and oil or chemicals end up in the water''. Certainly, the federal 
government does not want to create a situation where the least 
experienced

[[Page S7843]]

mariners are the only available crew to handle the most hazardous 
cargoes, or the least responsible operators are the only available 
carriers. Thus, the unavoidable risk of such criminal liability 
directly and adversely affects the safe transportation of oil products, 
an activity essential for the public, the economy, and the nation.
  Therefore, despite the commitment and effort to provide trained and 
experienced vessel operators and employees, to comply with all safety 
and operational mandates of Coast Guard laws and regulations, and to 
provide for the safe transportation of oil as required by OPA90, 
maritime transportation companies in Louisiana, and elsewhere still 
cannot avoid criminal liability in the event of an oil spill. 
Responsible, law-abiding companies have unfortunately been forced to 
undertake the only prudent action that they could under the 
circumstances, namely the development of criminal liability action 
plans and retention of criminal counsel in an attempt to prepare for 
the unavoidable risks of such liability.
  These are only preliminary steps and do not begin to address the many 
implications of the increasing criminalization of oil spills. The 
industry is now asking what responsibility does it have to educate its 
mariners and shoreside staff about the potential personal exposure they 
may face and wonder how to do this without creating many undesirable 
consequences? How should the industry organize spill management teams 
and educate them on how to cooperate openly and avoid unwitting 
exposure to criminal liability? Mr. President, I have thought about 
these issues a great deal and simply do not know how to resolve these 
dilemmas under current, strict liability law. 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 itself, but also must 
protect itself from the criminal liability that now exists due to the 
available and willing use of strict liability criminal 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 OPA90 ``blueprint'' is no longer clear. Is this serving the 
objectives of OPA90? Does this really serve the public welfare of our 
nation? Is this what Congress had in mind when it mandated its spill 
response regime? Is this in the interest of the most immediate, most 
effective oil spill cleanup in the unfortunate event of a spill? We 
think not.
  To restore the delicate balance of interests reached in the enactment 
of OPA90 a decade ago, we intend to work with the Congress to reaffirm 
the OPA90 framework for criminal prosecutions in oil spill incidents. 
The enactment of the legislation we are introducing today will ensure 
increased cooperation and responsiveness desired by all those 
interested in oil spill response issues without diluting the deterrent 
effect and stringent criminal penalties imposed by OPA90 itself.
  I look forward to continuing the effort to upgrade the safety of 
marine operations in the navigable waterways of the United States, and 
I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2944

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AFFIRMATION OF PENALTIES UNDER OIL POLLUTION ACT 
                   OF 1990.

       (a) In General.--Notwithstanding any other provision or 
     rule of law, section 4301(c) and 4302 of the Oil Pollution 
     Act of 1990 (Public Law 101-380; 104 Stat. 537) and the 
     amendments made by those sections provide the exclusive 
     criminal penalties for any action or activity that may arise 
     or occur in connection with a discharge of oil or a hazardous 
     substance referred to in section 311(b)(3) of the Federal 
     Water Pollution Control Act (33 U.S.C. 1321(b)(3)).
       (b) Rule of Construction.--Nothing in this section shall be 
     construed to limit, or otherwise exempt any person from, 
     liability for conspiracy to commit any offense against the 
     United States, for fraud and false statements, or for the 
     obstruction of justice.
                                 ______