HAZELWOOD CLAIMS IMMUNITY FROM LAW
STATE REGULATION ENCOURAGES SELF REPORTING OF OIL SPILLS

By SHEILA TOOMEY
Daily News reporter

ANCHORAGE- When Capt. Joseph Hazelwood reported that his tanker, the Exxon Valdez, was leaking North Slope crude into Prince William Sound, he automatically became immune from prosecution for any crimes arising from the spill, according to court papers filed in the former skipper's defense.

A little known state regulation, designed to encourage self reporting by people who spill oil and other hazardous substances, gives those people immunity. The immunity clause provides that information obtained as a result of such a report may not be used against them in a criminal prosecution.

In the early morning hours of March 24, with his ship impaled on Bligh Reef and its toxic cargo pouring from slashes in the hull, Hazelwood notified the U.S. Coast Guard by radio that oil was spilling into Prince William Sound.

The promise of some kind of immunity to "any natural person providing this notification or report" is clearly stated in the Alaska Administrative Code; it will be up to Superior Court Judge Beverly Cutler to decide how far the protection extends.

Dick Madson, Hazelwood's Alaska attorney, said the immunity clause "prohibits prosecution for anything stated by the reporter (Hazelwood), as well as any information which is derived from investigating the report." If upheld by Cutler, this could sweep away all the evidence gathered by the state to support six counts brought against the former skipper three felonies and three misdemeanors.

Madson argued that a broad interpretation of the immunity clause is necessary because people who spill oil are legally required to report the incident; that is, they are required to violate their own right against selfincrimination by confessing to having broken state antipollution laws.

That's why the immunity clause exists, he said.

The use of the phrase "natural person" in the regulation pointedly limits the immunity to individuals, leaving the corporate tanker owners vulnerable to prosecution, Madson said in a memorandum to Cutler dated Aug. 11.

"The immunity offered is to ensure that if one obeys the law by reporting a discharge, he cannot be criminally prosecuted for the discharge itself."

Madson also argued that the state improperly ignored laws specifically designed to deal with oil spills and charged Hazelwood instead with catch all criminal mischief felonies, presumably because the felonies carry stiffer sentences.

The state's response to Madson is due to Cutler by Friday.

The 49 page memo outlining Hazelwood's defense also argues that all charges based on alleged recklessness, which include the three felonies and one of the misdemeanors, should be dismissed because the state has its facts wrong.

Madson said the allegations of recklessness are based on two accusations, both untrue: First, that Hazelwood turned over control of the ship to a third mate who did not have a required U.S. Coast Guard license endorsement to pilot a tanker in the waters near Bligh Reef.

In fact, Madson said, the Cost Guard waived that rule before March 24, and no special license endorsement was necessary.

According to information provided by the Coast Guard, Madson's assertion is incorrect.

To support his argument, Madson filed a copy of a letter dated Sept. 19, 1988, from Alaska Maritime Agencies, Exxon's agent in Valdez, to "Whom it may concern," that says the Coast Guard has waived special pilotage requirements during daylight passages.

The second allegation of recklessness is based on charges that Hazelwood tried to rock the 987 foot tanker off the reef after it was grounded. If true, he risked sinking the damaged ship and spilling the rest of its cargo.

According to Madson, automatic logs of the ship's engine show it was not put into reverse at any time after the grounding, which Madson cites as proof that Hazelwood did not try to rock the ship off. Madson, however, does not mention recorded conversations between Hazelwood and the Coast Guard in which he says he is trying to get the ship off the reef.

Of the two remaining misdemeanors, one is negligent discharge of oil, barred by the immunity clause, according to Madson. The last is the equivalent of drunken driving operating a watercraft while intoxicated. Madson challenged this charge by attacking the validity of blood and urine samples taken from Hazelwood about 10 hours after the grounding.

The samples were illegally taken, inadequately preserved and improperly interpreted, Madson said.

In an accompanying affidavit, Hazelwood swore he was not told he didn't have to take the tests. Once taken, the test samples were not refrigerated. And, even if the tests were valid, the state can't accurately extrapolate backward to determine how much alcohol was in Hazelwood's system at the time of the crash because it lacks information about the time and the amount of alcohol consumed, Madson said.

---

Story Index: Main | The Captain	Overall: story 141 of 380 The Captain story 21 of 56