EXXON: NOT RESPONSIBLE FOR EMPLOYEES

By DON HUNTER
Daily News reporter

ANCHORAGE- Exxon Corp. can't be held criminally liable for an oil spill that violated the federal Clean Water Act, even if the spill was caused by a drunken tanker captain known to be an alcoholic by company officials who negligently failed to remove him from command, the company's lawyers argue in court papers filed Friday.

In briefs supporting Exxon's attempts to have federal charges dismissed, company lawyers argue that the Clean Water Act criminalizes only the specific acts of people who spill pollutants into waterways.

Prosecutors claim Exxon and Exxon Shipping are criminally responsible for the shipwreck and ensuing oil spill because officials of both companies had been told previously that Hazelwood was an alcoholic with a history of shipboard binges, and that the man steering the tanker when it grounded on Bligh Reef, Robert Kagan, was incompetent.

"Even assuming . . . that conduct of Exxon employees in 1977, 1985 or 1987 was negligent, and that such conduct contributed to the grounding of the Exxon Valdez years thereafter, (the act) does not impose criminal liability on all persons whose negligence contributes to a "discharge' of a pollutant by some other person," the Exxon attorneys argue.

In a similar argument, attorneys for Exxon Shipping Co. argue that another pollution law, the federal Refuse Act, applies only to those who intentionally discharge a pollutant. The Refuse Act has never been used against a shipowner, they say.

Exxon and Exxon Shipping, its subsidiary, are charged with criminal violations of five federal pollution laws as a result of the Exxon Valdez oil spill. U.S. District Court Judge Russel Holland will hear oral arguments next week on the companies' voluminous motions to dismiss the indictment.

The Exxon Valdez ran aground on a charted reef in Prince William Sound shortly after midnight on March 24, 1989, with Captain Joseph Hazelwood in his cabin after an afternoon of drinking vodka in Valdez bars.

The companies are charged with criminal violations of the Clean Water Act, the Refuse Act, the Migratory Bird Treaty Act, the Ports and Waterways Safety Act and the Dangerous Cargo Act.

Exxon's first line of defense is that it cannot be prosecuted for actions of employees of Exxon Shipping. But prosecutors say that Exxon Shipping is controlled by its parent corporation; the shipping company used to be a division of the parent company, and only emerged as a separate corporation for tax purposes, prosecutors argue.

Both sides agree that the attempt to prosecute the corporations for pollutions crimes relies on untested interpretations of federal law.

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