The Ninth Circuit recently affirmed the conviction of a general contractor's site supervisor for a “negligent” discharge in violation of the Clean Water Act that resulted when a subcontractor on the defendant's work site inadvertently damaged an oil pipeline, discharging 1,000 to 5,000 gallons of heating oil to the Skagway River. The site supervisor will serve a sentence of six months in prison, six months in a halfway house and six months of supervised release, as well as pay a $5,000 fine -- despite the fact that he did not participate in or direct the specific activity that led to the violation -- unless the U.S. Supreme Court accepts certiorari and reverses the decision.
Edward Hanousek, Jr. (the defendant) was employed by the Pacific & Arctic Railway and Navigation Company as a roadmaster of the White Pass & Yukon Railroad. Under his contract, Hanousek was responsible for “the safe and efficient maintenance and construction of the track” and “ [was to] assume similar duties with special projects.” One such “special project” involved blasting rock and then loading it onto railroad cars with a backhoe. Parallel to the track was a pipeline carrying heating oil that runs underground at a very shallow depth. Along areas of the pipeline where loading was being performed, a work platform was constructed to protect the pipe from the weight of the heavy machinery.
Hunz & Hunz was hired by Pacific & Arctic to provide the equipment and labor for the project. One evening, an employee of Hunz & Hunz was using the backhoe to clean up rocks that had fallen off the train several hundred feet from the loading area, where the pipeline was not protected by the work platform. As a result, the pipeline ruptured spilling heating oil that eventually reached the Skagway River.
Based upon this mishap, a jury convicted Hanousek of a one-count “negligent” discharge under the Clean Water Act. On appeal, Hanousek contended that the trial court erred on numerous issues. Among his contentions, Hanousek argued that the judge erred by instructing the jury that the government need only prove ordinary negligence (as opposed to criminal negligence) under the Clean Water Act. Hanousek also argued that the judge erred by failing to specifically instruct the jury that Hanousek could not be found vicariously liable for the negligence of his subcontractor. Finally, Hanousek argued that the evidence did not support a finding of negligence on his part.
Standard of “Negligence” under the Clean Water Act. Hanousek's proposed jury instruction defined criminal negligence as a “gross deviation from the standard of care that a reasonable person would observe in the situation.” The trial judge instructed the jury that discharging “negligently” under the CWA meant only “a simple failure to use reasonable care.” On appeal, the Ninth Circuit recognized that “negligently” is not defined in the CWA. Noting the absence of a definition, the Court construed the Congressional intent as requiring only ordinary negligence. The Court pointed out that when Congress intended a heightened standard of negligence to apply in other sections of the Clean Water Act, it used phrases like “gross negligence” and “willful misconduct.” Accordingly, the Court held that the absence of such language in the provision under which Hanousek was charged indicated that Congress intended a standard of ordinary negligence.
Vicarious Liability for Clean Water Act “Negligence.” Hanousek also argued that the trial court erred in failing to specifically instruct the jury that he could not be found vicariously liable for the negligence of the backhoe operator. The judge refused to follow Hanousek's proposed jury instructions, instead giving jurors a four part test to determine if Hanousek was liable: (1) Did the defendant caused the discharge? (2) Was the discharge into navigable waters? (3) Was the quantity discharged harmful? (4) Was the discharge caused by defendant's “negligence”? On appeal, the Ninth Circuit found these instructions were “adequately explained” so that the jurors understood that Hanousek could only be convicted on the basis of his own negligent conduct.
Sufficiency of the Evidence on “Negligence.” In examining the sufficiency of the evidence to support a finding of “negligence” at trial, the Ninth Circuit reasoned most notably that Hanousek was responsible for the rock quarrying project, that he was involved in directing the daily activities of the subcontractors (though not the specific activity which led to the inadvertent discharge), and that he failed to at least establish a policy to prohibit the use of backhoes in areas where work had been completed and the protective platform had been removed.
Undoubtedly, Mr. Hanousek's plight will cause many general contractors to re-examine whether they have adequately protected their work sites against every risk that may pose environmental consequences.
Edward Hanousek, Jr. (the defendant) was employed by the Pacific & Arctic Railway and Navigation Company as a roadmaster of the White Pass & Yukon Railroad. Under his contract, Hanousek was responsible for “the safe and efficient maintenance and construction of the track” and “ [was to] assume similar duties with special projects.” One such “special project” involved blasting rock and then loading it onto railroad cars with a backhoe. Parallel to the track was a pipeline carrying heating oil that runs underground at a very shallow depth. Along areas of the pipeline where loading was being performed, a work platform was constructed to protect the pipe from the weight of the heavy machinery.
Hunz & Hunz was hired by Pacific & Arctic to provide the equipment and labor for the project. One evening, an employee of Hunz & Hunz was using the backhoe to clean up rocks that had fallen off the train several hundred feet from the loading area, where the pipeline was not protected by the work platform. As a result, the pipeline ruptured spilling heating oil that eventually reached the Skagway River.
Based upon this mishap, a jury convicted Hanousek of a one-count “negligent” discharge under the Clean Water Act. On appeal, Hanousek contended that the trial court erred on numerous issues. Among his contentions, Hanousek argued that the judge erred by instructing the jury that the government need only prove ordinary negligence (as opposed to criminal negligence) under the Clean Water Act. Hanousek also argued that the judge erred by failing to specifically instruct the jury that Hanousek could not be found vicariously liable for the negligence of his subcontractor. Finally, Hanousek argued that the evidence did not support a finding of negligence on his part.
Standard of “Negligence” under the Clean Water Act. Hanousek's proposed jury instruction defined criminal negligence as a “gross deviation from the standard of care that a reasonable person would observe in the situation.” The trial judge instructed the jury that discharging “negligently” under the CWA meant only “a simple failure to use reasonable care.” On appeal, the Ninth Circuit recognized that “negligently” is not defined in the CWA. Noting the absence of a definition, the Court construed the Congressional intent as requiring only ordinary negligence. The Court pointed out that when Congress intended a heightened standard of negligence to apply in other sections of the Clean Water Act, it used phrases like “gross negligence” and “willful misconduct.” Accordingly, the Court held that the absence of such language in the provision under which Hanousek was charged indicated that Congress intended a standard of ordinary negligence.
Vicarious Liability for Clean Water Act “Negligence.” Hanousek also argued that the trial court erred in failing to specifically instruct the jury that he could not be found vicariously liable for the negligence of the backhoe operator. The judge refused to follow Hanousek's proposed jury instructions, instead giving jurors a four part test to determine if Hanousek was liable: (1) Did the defendant caused the discharge? (2) Was the discharge into navigable waters? (3) Was the quantity discharged harmful? (4) Was the discharge caused by defendant's “negligence”? On appeal, the Ninth Circuit found these instructions were “adequately explained” so that the jurors understood that Hanousek could only be convicted on the basis of his own negligent conduct.
Sufficiency of the Evidence on “Negligence.” In examining the sufficiency of the evidence to support a finding of “negligence” at trial, the Ninth Circuit reasoned most notably that Hanousek was responsible for the rock quarrying project, that he was involved in directing the daily activities of the subcontractors (though not the specific activity which led to the inadvertent discharge), and that he failed to at least establish a policy to prohibit the use of backhoes in areas where work had been completed and the protective platform had been removed.
Undoubtedly, Mr. Hanousek's plight will cause many general contractors to re-examine whether they have adequately protected their work sites against every risk that may pose environmental consequences.