Muskie Congressional Record: Oil Pollution

CONGRESSIONAL RECORD -- SENATE

April 20, 1967

Page 10235

AMENDMENT TO THE OIL POLLUTION ACT OF 1924

Mr. MUSKIE. Mr. President, today I introduce, for appropriate reference, a bill to amend the Oil Pollution Act of 1924 which only last year was subject to major strengthening amendments in legislation developed by the Senate Public Works Committee and enacted unanimously by the Senate and the House.

Included in the Clean Water Restoration Act of 1966 were amendments to the Oil Pollution Act which expanded its coverage to all navigable waterways of the United States, increased penalties for oil deposits, and improved protection of the public interest against deposits of oil on all waterways of the Nation.

The congressional intent was quite clear. The Congress wanted increased protection against deposits of oil on the waterways of the Nation, not only in the sense of inhibiting such deposits but by providing a method whereby violators of the act would be charged with removal of such oil from the Nation's shorelines.

At the time of Senate passage of the conference report, I said:

Finally, the Senate provided strengthening amendments to the Oil Pollution Act. The Senate amendments would have extended the scope of that act to shore installations and terminal facilities and provided that boats, vessels, shore installations, and terminal facilities depositing oil on coastal, navigable and interstate waters and adjoining shorelines would be responsible for the removal of that oil. The legislation reported from conference limits this removal feature to boats and vessels by eliminating application of the Oil Pollution Act to shore installations and terminal facilities. However, the Senate conferees were assured that both shore installations and terminal facilities were subject to the enforcement provisions of the Federal Water Pollution Control Act.

The net effect of the amendments to the Oil Pollution Act, strictly enforced, will be first, the extension of its enforcement provision to all navigable waters of the United States; second, a method of requiring removal or payment of the cost of removal of oil deposited on navigable waters; and third, a protection for the adjoining shorelines against the grossly negligent spillage of oil which has deleteriously affected both the recreational values of these shorelines and has seriously damaged coastal fisheries.

In essence the Senate, and in concurrence the House, anticipated the type of problem created recently by the Torrey Canyon disaster.

Apparently, however, some officials in the executive branch did not understand the intent of Congress in its action. From recent press reports, not, and I emphasize this, from formal notification of any executive agency, attorneys in the Justice Department have decided the Oil Pollution Act is unenforceable.

This point was amplified in a recent New York Times article which I include in the RECORD.

Of particular interest in this article are the following comments:

Justice Department lawyers have complained privately that it is virtually impossible to prove that an oil discharge from a ship was due to gross negligence or willful conduct, since the crew members are ordinarily the only witnesses to the event.

Yesterday, a lawyer from the Interior Department, which is supposed to recommend

prosecutions under the 1924 law, said that no prosecutions have been suggested since it was amended last November.

"Proving gross negligence is almost impossible -- almost like proving they polluted the water on purpose," he said. This lawyer also asked that his name not be published.

This tends to conflict with testimony of Federal Water Pollution Control Administration Commissioner James Quigley, who told the Senate Appropriations Committee:

Additional funds are also proposed to enable the Administration to implement and effectively carry out the provisions of the Oil Pollution Control Act. The administration of this Act was transferred from the Secretary of the Army to the Secretary of the Interior. Compliance with water quality standards and the Oil Pollution Act will be pursued to obtain voluntary compliance where possible, and through court action whenever required.

Because of the confusion on this point -- because neither the Department of Justice nor the Department of the Interior has seen fit to inform the Congress of any flaw in the amendments, but most importantly because of an intense desire on the part of the Subcommittee on Air and Water Pollution to make sure that there is active pursuit of water pollution control, I introduce this amendment.

Further, I assure my colleagues that early hearings will be called on this matter and every attempt will be made to rectify whatever problems may exist in proper enforcement of the Oil Pollution Act of 1924.

The PRESIDING OFFICER. The bill will be received and appropriately referred; and, without objection, the article will be printed in the RECORD.

The bill (S. 1591) to amend the Oil Pollution Act of 1924, introduced by Mr. MUSKIE, was received, read twice by its title, and referred to the Committee on Public Works.

The article presented by Mr. MUSKIE is as follows:

[From the New York Times, Apr. 16, 1967]

ONE POLLUTION ACT HINDERS ANOTHER: WATER LAW CURBS ACTIONS ON OCEAN OIL POLLUTION

(By Fred P. Graham)

WASHINGTON, April 15. -- The Justice Department released figures yesterday indicating that the clean-water law of 1966 had crippled enforcement of the Federal oil pollution law.

The department disclosed that it had not filed a single case against shipowners for polluting territorial or inland waters since the Clean Water Restoration Act of 1966 became law on Nov. 3.

According to the Justice Department. the Government had previously prosecuted about 100 cases a year.

A spokesman termed this estimate "very conservative." and said about 25 to 50 cases were brought each year by the Federal attorney's office in New York City alone.

The new situation results from a one-word amendment that was inserted in the clean water law by a Texas Representative, James C. Wright Jr., as the law was being whipped into final form by a Senate House conference committee in the final days of the last session of Congress.

Mr. Wright, who insisted on a number of changes in the bill to satisfy objections from the oil industry, said in an interview last night that he did not intend to cripple the law against oil discharges from ships.

He said his purpose was to protect "the poor little devil who might have done it accidentally" from heavy floes.

Since the change involved only one word in a nine-page law, its significance was not appreciated by Justice Department officials until after President Johnson had signed the bill.

Official Justice Department spokesmen, apparently in an effort to avoid friction with Congress, are reluctant to discuss the matter. But privately, Government lawyers charged with enforcing the Oil Pollution Act of 1924, the basic Federal law against oil pollution of navigable waters, complain that the change has made the law unenforceable.

Under the law of 1924, the owners of a ship were liable for fines ranging between $500 to $2,500 if their ship permitted oil to escape into the ocean within three miles of shore.

The statute was drafted so that the Justice Department had only to prove that the oil came from a particular ship. The shipowner could escape liability only by proving that the discharge was due to a serious emergency or an unavoidable accident.

The clean water act of 1966 was primarily a Federal aid program, which made $3.5-billion available to local communities for the construction of sewage treatment plants.

However. the Senate version, which was introduced by Gaylord Nelson, Wisconsin Democrat, and guided through the Senate by Edmund S. Muskie, Maine Democrat, contained amendments calculated to strengthen the 1924 law.

These amendments increased the law's penalties to a maximum of $10,000, and authorized the Government to remove spilled oil from the water or shorelines and then to sue the responsible parties for the cost. They also extended the law to cover navigable rivers and lakes, applied the penalties to pollution from oil tanks and other facilities on shore.

The Senate version also included an "innocuous definition of an oil discharge" as “any accidental, negligent, or willful spilling"

OIL LOBBY WINS

Mr. Wright's amendment changed this to define "discharge" as "any grossly negligent, or willful spilling."

The final version also omitted the shore facilities from the law's coverage, an omission that the oil industry had lobbied for strenuously.

Yesterday a lawyer from the Interior Department, which is supposed to recommend prosecutions under the 1924 law, said that no prosecutions have been suggested since it was amended last November.

"Proving gross negligence is almost impossible -- almost like proving they polluted the water on purpose," he said. This lawyer also asked that his name not be published.

Donald E. Nicoll, administrative assistant to Senator Muskie, denied that the amendment had been intended to "deliberately weaken" the anti-pollution law.

He said the Congressman involved would be happy to consider any evidence that the amendment has, however, had that effect. This occasion may arise during hearings scheduled for April 25 and 26 before a House Public Works subcommittee led by Representative John A. Blatnik, Minnesota Democrat. Governor Rockefeller of New York is scheduled to testify.

The purpose of the hearings is to consider the adequacy of Federal anti-pollution laws to cope with the threat of disasters such as the pollution of some British beaches after the sinking of the tanker Torrey Canyon last month.

A spokesman in Mr. Blatnik's office said yesterday that the subcommittee would also attempt to evaluate the effects of the newly enacted clean water law.