Nov 22, 2004
$10 million fine in Buzzard's Bay spill case
Chief U.S. Magistrate Judge Marianne B. Bowler last week sentenced Bouchard Transportation Company, of Hicksville, N.Y, to pay a fine of $10 million in connection with the April 2003 Buzzards Bay oil spill. She also ordered Bouchard to comply with several remedial measures designed to prevent future spills.
The sentencing order endorsed the U.S. Attorney's Office recommendation that $7 million of the fine be used for eligible wetlands conservation projects in the Buzzards Bay Watershed area of Southeastern Massachusetts.
"In imposing the highest ever fine in an oil spill case in New England, the Court today has raised the stakes for shippers who fail to take the necessary steps to prevent oil spills like that in Buzzards Bay," stated U.S. Attorney Michael J. Sullivan. "The U.S. Attorney's Office is pleased that the Court adopted its recommendation that $7 million of the total fine be used for wetlands conservation projects in Southeastern Massachusetts--the region that bore the full brunt of the spill."
Prior to the sentencing Chief Magistrate Judge Bowler accepted Bouchard's guilty plea to an Information charging it with one count of violating the Clean Water Act by negligently causing the discharge of approximately 98,000 gallons of oil into Buzzards Bay on April 27, 2003, when the oil barge its tugboat was towing, traveled outside the clearly marked Buzzards Bay channel and struck rocky shoals lying at a depth of 22 feet.
According to a statement released the U.S. Attorney's office in Boston, Bouchard negligently caused the oil spill because its employee, the mate in charge of the vessel, operated the tugboat in a negligent manner and because Bouchard allowed this individual to remain at the helm of one of its tugboats despite repeated concerns that were raised about his competency.
"The well known environmental risks associated with the shipment of oil and other hazardous substances on our waterways requires that mariners exercise the highest degree of caution through professional seamanship. Disregard for the safety of others as well as our natural resources needs to be taken very seriously," said Captain Mary Landry, Commanding Officer of the Providence Coast Guard Marine Safety Office who was also the Federal On Scene Coordinator for the spill response.
"Successful criminal prosecution is one of the many vital components in furthering the Coast Guard's mission to promote safety on our waterways and to protect our nation's maritime environment," noted Captain Landry.
Bouchard also pleaded guilty to one count of violating the Migratory Bird Treaty Act by killing protected bird species as a result of this oil spill. According to the Information, the April 2003 oil spill killed hundreds of federally protected birds, necessitated the closure of thousands of acres of shellfish beds in Buzzards Bay, and affected close to ninety miles of Massachusetts' beaches and coastline.
"This is one of the largest criminal fines to be imposed under the Migratory Bird Treaty Act. It is exceeded only by the penalty paid following the 1989 Exxon Valdez oil spill in Alaska," stated Thomas J. Healy, Special Agent in Charge of the Fish and Wildlife Service's Office of Law Enforcement for the Northeast.
"The ecosystems of places like Buzzards Bay are irreplaceable and must be protected," said Thomas V. Skinner, EPA's Acting Assistant Administrator for Enforcement and Compliance Assurance. "This prosecution sends a clear message that ship operators that violate the law and pollute our waters will be vigorously prosecuted."
The Criminal Charges
The oil spill occurred during the afternoon of April 27, 2003, a bright and clear day. A Bouchard owned and operated tugboat, named the Evening Tide, was traveling en route from Philadelphia to Sandwich, Massachusetts. The Evening Tide was towing an unpowered barge loaded with over four million gallons of No. 6 oil, a thick, viscous and adhesive petroleum. All navigational, communications, and steering systems aboard the Evening Tide were in good working order. Navigational charts identifying all hazards in the area, which are published by the National Oceanic and Atmospheric Administration, were on-board the Evening Tide in paper and electronic form.
While traveling northwards, the Evening Tide veered off course as it neared the first green buoy marking the beginning of Buzzards Bay channel. The Evening Tide and the barge traveled to the west of the first green buoy, the Information alleges, striking a series of rocks. The impact from the collision ripped a twelve foot hole in the bottom of the barge, rupturing one of the barge's ten separate tanks containing oil.
According to the Information, on the afternoon of April 27, 2003, the Mate was at the helm of the Evening Tide and was the person responsible for navigating and piloting the tugboat and barge during these hours. According to the Information, the Evening Tide Mate allowed the boat to drift off course and towards the rocks when he left the wheelhouse for an extended period of time to work at the stern of the tugboat. In leaving the wheelhouse unoccupied, the Evening Tide Mate violated the Evening Tide's "Watch Standing Orders" which stated that the Mate or Captain shall, "never leave the bridge unattended while underway."
The Information also alleged that the Evening Tide Mate did not monitor radio communications. As a result, the Information alleges, the Evening Tide Mate missed efforts by a vessel traveling behind the tugboat to warn the Evening Tide Mate that his boat was heading out of the clearly marked Buzzards Bay Channel.
According to the Information, Bouchard was on notice of complaints concerning the competency of the Evening Tide Mate. In particular, other captains who had worked with the Evening Tide Mate during his eight months with the company had raised questions with BTC's headquarters about whether the Evening Tide Mate was sufficiently qualified to be at the helm of a tugboat towing a barge loaded with oil.
Terms of Sentencing
Immediately following last week's hearing, Bouchard presented a $9 million check to the Clerk of the Court. Seven million dollars of the fine proceeds will be deposited in the North American Wetlands Conservation Act Fund for BTC's violations of the Migratory Bird Treaty Act. This fund is used by the Department of the Interior to finance public-private partnerships aimed at carrying out long term conservation projects that provide and enhance habitat for the migratory birds, fish and wildlife which depend on these fragile areas for their survival. In its sentencing Order, the Court endorsed the government's recommendation that the money ought to be spent in the Buzzards Bay Watershed, the area directly affected by the spill. The other $2 million will be directed toward the Oil Spill Liability Trust Fund for BTC's violations of the Clean Water Act. The Oil Spill Liability Trust Fund is administered by the U.S. Coast Guard and used to pay clean up costs and damage claims for oil spills in which the responsible party is unknown.
Bouchard will also be placed on probation for a period of three years. The final $1 million portion of the criminal fine will be suspended and will be imposed only if BTC fails to comply with the conditions of probation. The conditions of probation imposed through the plea agreement include several remedial measures designed to prevent this type of oil spill from occurring again.
The investigation is being conducted by the Environmental Protection Agency's Criminal Investigation Division, the U.S. Coast Guard Investigative Services, and the U.S. Fish and Wildlife Service's Office of Law Enforcement. The U.S. Attorney would also like to recognize the U.S. Secret Service and the Massachusetts Environmental Police for their assistance to investigators on the case. This case is being prosecuted by Assistant U.S. Attorneys Jonathan F. Mitchell and Nadine Pellegrini, along with the Environmental Protection Agency's Senior Criminal Enforcement Counsel, Peter Kenyon. The federal investigation also received substantial assistance from Assistant Attorney General Paul Molloy of the Massachusetts Attorney General's Environmental Crimes Strike Force.