Environmental Crimes Panel: Criminal Enforcement for Negligent Conduct 2011 Houston Marine Insurance Seminar Gregory F. Linsin September 19, 2011

Legal Standard - Negligent Criminal Liability Clean Water Act, as amended by OPA 90. –Negligent discharge of any pollutant without a permit into navigable waters of the United States. –Negligent discharge of a harmful quantity of oil into navigable waters or the contiguous zone. –Ordinary negligence is sufficient to sustain a conviction. Other “strict liability” offenses often implicated. –Refuse Act – discharge of any refuse into navigable waters. –Migratory Bird Treaty Act – unlawful taking of any migratory bird, but recent decisions have implied requirement to establish proximate causation and foreseeability. 2

Policies and Procedures Affecting Oil Spill Enforcement U.S. Coast Guard Marine Casualty Investigation. –Cause(s) of casualty. –Any acts of negligence or misconduct that contributed to cause(s). –Any evidence of acts that could lead to civil or criminal liability. Policies of Department of Justice, U.S. Coast Guard and EPA identify criteria that guide exercise of discretion. –Actual or threatened harm to environment. –Failure to make timely report of discharge. –Falsification of records, concealment of evidence, obstruction of investigation. Parallel proceedings policies facilitate simultaneous administrative, civil and criminal investigations. 3

Seven Criminal Prosecutions in Wake of Oil Spill Events US v. DRD Towing – Tugboat piloted by apprentice-mate collided with tanker; time records falsified. US v. Fleet Management – Ship allided with supporting tower of San Francisco Bay Bridge; passage plans falsified. US v. IMC Shipping – Bulker experienced mechanical problem and unable to restart main engine; vessel runs aground, breaks apart in rough seas, and sinks; false statement to NTSB. US v. Bouchard Transportation – Tugboat runs aground outside Buzzards Bay Channel; wheelhouse not manned. 4

Seven Criminal Prosecutions – Cont’d US v. Ekloff Marine – Tugboat engine room fire causing loss of power; tug and barge run aground; prior maintenance problems. US v. Rivera – Towline between tug and barge parts twice; crew of tug asleep; barge grounds off coast of Puerto Rico. US v. Exxon – Tanker exits vessel traffic lanes and grounds on reef in Prince William Sound; multiple maritime offenses. 5

Perspective Vast majority of oil spills do not result in significant enforcement action. Some substantial oil spill events have been considered for criminal prosecution but were declined following consultations between U.S. Coast Guard and Department of Justice. 6

Factors That Have Influenced Exercise of Prosecutorial Discretion Actual or threatened environmental harm is a key factor. –Sensitivity of marine environment. –Proximity to major population centers. All but one case involved multiple, serious acts of negligence that were proximate causes of casualty. Majority of cases involved post-incident conduct designed to falsify records or otherwise obstruct investigation. Several cases involved violations of other maritime laws. 7

Criminal Investigation of Deepwater Horizon Casualty Criminal task force now led by Assistant U.S. Attorney John Buretta and reporting to Assistant Attorney General of Criminal Division Lanny Breuer. Active grand jury investigation in E.D. Louisiana. Seaman’s Manslaughter Statute implicated. –10 year felony based on proof of simple negligence. Environmental offenses will be charged. –Clean Water Act; Migratory Bird Treaty Act Criminal fraud charges are also being considered. Anticipate complications for major organizational targets to reach negotiated disposition. 8

9 QUESTIONS? Greg Linsin Tel. (202) Mob. (202) Blank Rome LLP The Watergate 600 New Hampshire Avenue, N.W. Washington, D.C