Appendix — Ray v. Atlantic Richfield Co.
Supreme Court brief1978
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APPENDIX
Supreme Court of the United States
OcTOBER TERM, 1976
No. 76-930
Dixy LEE Ray, et ai.,
Appellants,
—Y —
ATLANTIC RICHFIELD COMPANY, et al.,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COUR!
WESTERN DISTRICT OF WASHINGTON
THREE JUDGE COURT
Jhaiy ,>
Lt)
PROBABLE JURISDICTION NOTED FEBRUARY 2m, 1977
APPENDIX
Supreme Court of the Huited States
OCTOBER TERM, 1976
No. 76-930
Dixy LEE Ray, et ai.,
Appellants,
—VY—
ATLANTIC RICHFIELD COMPANY, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
(THREE.JUDGE COURT)
FILED NOVEMBER 19, 1976
PROBABLE JURISDICTION NOTED FEBRUARY 28, 1977
INDEX
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
(THREE-JUDGE COURT)
1. Docket Entries
2. Complaint (Atlantic Richfield Company)
3. Pre-Trial Order
4. Exhibit A (Chapter 125 and Governor's
Message)
5. Exhibit B (Order, Board of Pilotage
Commissioners
6. Exhibit C (Tankers at ARCO’s Cherry Point
refinery)
7. Exhibit D (Tankers over 125,000 DWT at
ARCO’'s Cherry Point refinery)
8. Exhibit F (Tankers at ARCO’s Long Beach
refinery)
9. Exhibit G (part thereof, viz, Chart Nos. 18400
and 18421)
10. Exhibit N (Public parks, Puget Sound)
11. Exhibit O (Puget Sound tanker casualties)
12. Exhibit Q (Ports and Waterways Safety Act of
1972)
13. Exhibit R (Title | regulations, Ports and
Waterways Safety Act of 1972)
14. Exhibit T (Puget Sound vessel traffic system
rules)
15. Exhibit U (Puget Sound Vesse! Traffic System
Operatir., Manual)
16. Exhibit Y (Letter and Testimony of Governor
Evans)
.
;
115
Found in at
tached
envelope
117
INDEX
17. Exhibit X (Coast Guard Final Environmental
Impact Statement)
18. Exhibit XX (Proposed Whatcom County
ordinance)
19. Exhibit BBB (Washington Coastal Zone Man-
agement Program Approval, and Knecht
Affidavit)
20. Coast Guard Memorandum (R.A. Ratti)
21. Affidavit of Byron E. Milner
22. Affidvait of Herbert H. Zachow
Note: Order, Order of Permanent Injunction,
Opinion, and Judgment of the United States District
Court, Western District of Washington (Three-Judge
Court), may be found at pages 1a, 3a, 5a, and 12a, re-
, of the Junsdictiona! Statement, previously
23. Order Suspending Processing of Appeals (Judge
McGovern)
UNITED STATES SUPREME COURT
24. Opinion and Order on Application of Stay, Mr.
Justice Rehnquist (Circuit Justice)
25. Memorandum Decision, Granting Application for
Stay
369
370
373
Docket Entries !
DOCKET ENTRIES
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
THREE-JUDGE COURT
PLAINTIFFS
ATLANTIC RicnPireLp COMPANY
SeaTrain Lines, INc.,
Intervenor Plaintiff
Younc LAWYERS SECTION,
Kine Co. Bar Association,
Amicus Curiae Plaintiff
Unitep STATES,
Amicus Curiae Plaintiff
DEFENDANTS
Evans, Danirer J., Governor of
the State of Washington; SLape
Gorton, Attorney General of
the State of Washington,
Wiitam C. Jacons, Chairman,
and Harry A. GREENWOOD,
Bensamin W. Jover, Poise H.
Lutwer and J. Q Patt,
Members, Board of Pilotage
Commissioners; and Davin S
McFacnwran, Whatcom County
Prosecutor
and
COALITION AGAINST OIL
POLLUTION, NATIONAL
WILDLIFE FEDERATION
SIERRA CLUB. and FNVIR
ONMENTAL DEFENSE
FUND, INC., :
Intervenor Defendants
Kine Co. Prosecutor,
‘Interven or Defendant
STaTe OF MARYLAND,
Amicus Curiae
CAUSE
Declaratory and Injunctive
Relief against Enforcement of
Washington Tanker Law, Seeks
3 Judge Court to declare State
law unconstitutional.
ATTORNEYS
O’Me:veny & Myers
611 W. Sixth St
Los Angeles, CA 90017
and
Davin FE. Waconer
Perkins, Com, Stone, OLSEN
& Wiitams
1%) Washington Bidg
Seattle, WA QGRI10!
(206) 6R2-8770
(Judges Goodwin-MecGovern. Fast)
2 Docket Entries
ATTORNEYS--Continued
State of Maryland
Office of Attorney General
Dept. of Natural Resources
Tawes State Office Bldg.
Annapolis, Maryland 21401
(301) 267-1251
CHARLES MANSFIELD
(McEacuern)
Wiiuiam Gwar, Il!
Attorney in Charge,
West Coast Office
Admiralty & Shipping Section
U.S. Dept. of Justice
16152 Federal Bidg.,
P.O. Box 36028
450 Golden Gate Ave.
San Francisco, CA 94102
Wiuttam A. GARDINER
Deputy Prosecuting Atty.
Whatcom County, Washington
tor David S. McEachran
311 Grand Ave.,
Bellingham, WA 98225
Cnarces B. Roe, Jr.
Sr Assist. Atty. Genl.
Temple of Justice
Olympia, Washington 98504
for Dan Evans
(206) 753-2354
Tuomas H. S. Brucker
DuRNING & SMITH
1411 Fourth Avenue
624-8901
for Coalition Against Oil
Pollution
Larry Carter, RayMonD
HAMAN
Lane, Power, Moss &
MILLER
1700 Washington Bldg.
Seattle, Wn. 98101
(206) 223-7000
for Intervenor Seatrain
Lines
King Co. Prosecutor
JOHN KEEGAN
Eipon V. C. GREENBERG,
Ricnarp A. FRANK
Center for Law & Social
Policy
1751 N Street N.W.
Washington, D.C. 20036
344-3939
Docket Entries t
PROCEEDINGS
DATE
Sept.
Sept.
Sept.
Sept.
Sept.
Sept.
Sept.
Sept.
Sept.
Sept.
Oct.
Oct.
Oct.
Oct.
Oct.
Oct.
s
8
10
19
18
8
9
NR.
~
PROCEEDINGS
Filed complaint and issued
summons.
Filed Notice of Requirement of
Three-Judge Court.
Transferred to Judge McGovern as
Judge Sharp has disqualified himself.
Notified counsel.
Ent. order transferring to Judge
Goodwin for reassignment.
Filed return on s/c (7)
Transferred to Judge McGovern.
Filed order.
Filed certificate as to Three Judge
Court.
Filed designation of Circuit Judge
Alfred T. Goodwin, Senior Judge
William G. East, and District Judge
Walter T. McGovern, to hold a three
judge court.
Notified counsel.
Filed return on s/c.
Ent. order setting chambers confer-
ence for 2:00 p.m. on 10/9/75.
Ent. record of conference.
Filed notice of appearance of Wm. A.
Gardiner for David S. McEachran,
Whatcom County Prosecutor.
Filed notice of appearance of Charles
B. Roe, Jr. for Dan Evans.
Filed notice of appearance of What-
com County
Filed letter setting schedule of case
including setting 2/23/76 for oral
argumeat and submission of case to
three judge court.
Dec. :
Dec.
Dec.
. 28
3
5
18
19
20
Docket Entries
PROCEEDINGS
Ent. order setting hearing of this
cause for 9:30 a.m. on 2/23/76.
Filed motion to intervene.
Filed affidavit of Rbt. Lynette.
Filed affidavit of Thomas Kimbail.
Filed affidavit of Wm. Butler.
Filed affidavit of Brock Evans.
Filed memorandum of points and
authorities in support of motion of
coalition against oil pollution, The Natl.
Wildlife Federation, Sierra Club, and
Environmental Defense Fund, Inc. to
intervene as defts.
Filed notice of motion, 11/28/75 at
9:30 a.m.
Filed certificate of service.
Lodged order granting leave to file
motion to intervene without a
pleading.
Ent. order continuing motion of
Coalition Against Oil Pollution, etc., to
intervene to 12/5/75.
Filed memorandum of points and
authorities in opposition to motion to
intervene.
Filed affidavit of Thomas H. S.
Bruker.
Filed reply memorandum in support
of motion of Coalition Against Oil
Pollution, Natl. Wildlife Federation,
Sierra Club, and environmental defense
Fund, Inc. to intervene as defts.
Filed certificate of service.
Filed response of defts. Daniel J.
Evans, Slade Gorton, Wm. C. Jacobs,
Harry Greenwood, Ben. Joyce, Philip
Luther, J. Q. Paull, to motion to
intervene by Coalition Against . Oil
DATE
. 10
to
. 16
NR.
34
Docket Entries - 5
PROCEEDINGS
Pollution, Natl Wildlife Federation,
Sierra Club, and Environmental De-
fense Fund. Inc.
Motions to intervene submitted
without argument.
Filed response of deft. Whatcom Co.
Prosecutor, no objection to motion to
intervene.
Ent. order granting motion to inter-
vene by Coalition Against Oil Pollution,
Natl. Wildlife Federation, Sierra Club
and Environmental Defense Fund, Inc.,
per letter of counsel of record this
date.
Filed motion to intervene, Seatrain
"ines, Ine.
Filed memorandum of points and
authorities in support of motion of
Seatrain Lines, Inc. to intervene as a
pitt.
Filed notice of intent to file pleading
within five calendar days.
Filed affidavit of Howard M. Pack.
Filed notice of motion, 1/16/76 at 9:30
a.m.
Filed certificate of service.
Filed letter from Thomas Brucker.
Lodged proposed complaint for
declaratory and injunctive relief against
entorcement.
Filed statement re Seatrain Lines,
Inc. motion to intervene.
Jan.
Jan.
Jan.
‘
Jan.
Jan.
Feb.
Feb.
22
22
to
~
28
2
6
Feb. 6
NR.
35
37
39
40
Docket Entries
PROCEEDINGS
Ent. order taking motion of Seatrain
Lines to intervene under advisement.
Filed response of intervenors to
motion of Seatrain Lines, Inc. to
intervene as a party-pltf.
Filed memoranduta of points and
authorities in. opposition to motion of
Seatrain Lines, Inc., to intervene as a
pitf.
Filed certificate of service of memo.
of points, ete.
Filed reply memorandum of points
and authorities in support of motion of
Seatrain Lines, Inc. to intervene as a
pitf.
Filed certificate of service of accept-
ance of Roe’s schedule.
Ent. record of chambers conference.
The court denies the application and
motion of Seatrain Lines to intervene
pursuant to FRCP 24(a)(2) as a matter
of right. Seatrain Lines motion for
permissive intervention is granted.
Filed notice of withdrawal and
substitution of attorneys for Seatrain
Lines, Inc. Lane, Powell, Moss
substituted.
Filed proposed complaint for declara-
tory and injunctive relief against
enforcement of Washington Tug Escort
Act.
Filed complaint for declaratory and
injunctive relief against enforcement of
Washington Tug Escort Act.
Filed certificate of service of above
complaint.
Apr.
. oe.
~
1
NR.
45
46
45
49
51
Docket Entries
PROCEEDINGS
Ent. order setting hearing for 9:30
a.m. on 6/25/76.
Filed acknowledgement of service.
Filed acknowledgement of service.
Filed acknowledgement of service.
Filed acknowledgement of service.
Ent. order granting permission to
appear amicus curiae of Young Lawyers
Section, King Co. Bar Assoc. and to file
an amicus brief. Croil Anderson appear-
ing for the Assoc.
Filed Motion to intervene as a
defendant, King Co. Prosecuting Atty.
Lodged Order granting intervention.
Lodged Pretrial Order with
exhibits.
Filed Statement of plaintiff and
intervening plaintiff regarding King
County prosecuting attorney's motion
to intervene.
Ent. order granting the motion of the
King Co. Prosecutor to intervene as a
defendant in this action upon condition
that Prosecutor agree to PTO submit-
ted to Court 4/6/76 and to be bound by
time table for presenting briefs as
presently established; that prosecutor
not seek additional time for oral
argument over the time allocated to
defendant McEachran, Whatcom Co.
Prosecuting attornev. Aili counsel and
Judges notified.
Filed Statement of King County
Prosecuting Attorney accepting condi
tions of intervention.
May
y dl
12
12
12
12
NR.
52
53
60
61
Docket Entries 8
PROCEEDINGS
Ent. order denying motion of Amer-
ican Institute of Merchant Shipping Co.
to appear Amicus Curiae. Counsel
advised.
Filed Plaintiff's Trial Brief.
Filed Intervening Plaintiff's Brief in
support of complaint for declaratory
and injunctive relief.
Filed Notice of motion of the United
States of America to intervene as
amicus curiae for 5/14/76.
Filed Motion of the United States of
America to intervene as Amicus
Curiae.
Filed Certificate of service of
motion.
Lodged Order granting motion of the
US of A to intervene as Amicus
Curiae.
Filed Response in opposition to the
motion of the United States to file brief
Amicus Curiae.
Filed Motion to strike portions of
brief of intervening plaintiff Seatrain
Lines, Inc.
Filed Notice of motion of environ-
mental intervenors to strike portion of
brief of Seatrain Lines, Inc. for
5/21/76.
Filed Certificate of service.
Filed Response of environmental!
intervenors in opposition to motion of
United States to intervene as Amicus
Curiae.
DATE
May
May
May
May
May
May
May
May
May *
May :
May
12
13
14
14
14
17
18
21
+
June 1
June 7
63
65
6s
6Y
Docket Entries 4
PROCEEDINGS
Filed Response in support of the
motion of the United States to file brief
Amicus Curiae.
Filed Response of the United States
to opposition to its motion to intervene
as Amicus Curiae.
Lodged Order granting motion of the
US.A. to intervene as Amicus
Curiae.
Ent. order granting U.S. motion to
intervene amicus curiae. Counsel no-
tified. Amicus brief due on or before
5/24/76. ,
Filed Order granting motion of the
United States of America to intervene
as amicus curiae.
Filed Response of intervening plain-
tiff Seatrain Lines, Inc. to intervening
defendants’ motion to strike.
Ent. order denying environmental
intervenors’ motion to strike portions of
brief of Seatrain Lines, Inc. Counsel
advised.
Ent. order granting state of Maryland
leave to file an amicus brief due no later
than 6/4/76. Counsel notified.
Filed letter from State of Maryland
re filing of amicus brief.
Filed Brief of the United States as
Amicus Curiae.
Filed Brief of Amici Curiae of State
of Marvland and Maine.
Filed Application for leave to file
brief amicus curiae by the State of
10
DATE
June 7
June 8
*5/3
**5/13
6/10
NR.
53a
Docket Entries
PROCEEDINGS
California (joined by the states of
Missouri, Pennsylvania and Wisconsin)
in support of defendants Danie! J.
Evans, et al.
Lodged Brief of the California
Attorney General Amicus Curiae
(joined by the States of Missouri,
Pennsylvania and Wisconsin) in sup-
port of defendants Daniel J. Evans, et
al.
Filed Environmental intervenors’ Trial
Brief.
Filed Brief of State of Washington
defendants, Daniel J. Evans, et al.
Filed Memorandum of points and
authorities in support of motion to
dismiss of defendants Daniei J. Evans,
et al, and State of Washington.
Filed Trial Brief of Intervening defen-
dant, King County Prosecuting
Attorney
Filed Application of the Maritime
Law Assoc. of the U.S. to file Amicus
Curiae brief.
Ent. order authorizing the Maritime
Law Assoc. o. the U.S. to file Amicus
Curiae brief.
Filed Brief on behalf of the Maritime
Law Assoc. of the U.S.. Amicus
Curiae
Filed Statement of David S. McEach-
ran, Prosecuting Attorney for Whatcom
County, supporting Brief of Chris-
topher T. Bayley, King County Pro-
secutor, Intervening defendant.
DATE
6/14
6/16
June 17
June 18
June 21
76
84
m4
Docket Entries ii
PROCEEDINGS
Filed Supplemental Memorandum of
Environmental! Intervenors
Filed Application of State of New
York to file Amicus Curiae Brief.
Ent. order denying application of the
State of New York to be deemed a party
Amicus Curiae on the State of Mary-
land's memorandum of law as being
untimely. Counsel notified.
Filed Motion to supplement the
Pretrial Order
Filed Notice of motion to supplement
the pretrial order for 6/25/76
Filed Reply Brief of Plaintiff Atlantic
Richfield Co.
Filed letter with documents (two)
published subsequent to filing Pretrial
Order
Filed ®Reply Brief of intervening
plaintiff Seatrain Lines, Inc.
Filed Memorandum of Points and
authorities of plaintiff Atlantic Rich-
field Company in opposition to “Motion
to dismiss of defendants Daniel 4.
Evans, et al, and = State of
Washington”
Filed Affidavit setting forth facts
concerning notice of motion to sup-
plement the pretrial order with
attachments
Ent. order granting State of Califor-
nia (joined by States of Missouri,
Pennsylvania and Wisconsin) to file
amicus brief. Counsel advised.
Filed Brief of the California Attorney
(Jeneral as amicus curiae (joined by the
DATE
June 22
June 23
June 24
lune 25
NR.
85
90
91
93
94
Docket Entries 12
PROCEEDINGS
States of Missouri, Pennsylvania and
Wisconsin) in support of defendants
Daniel J. Evans, et al.
Filed Plaintiff's consent to defen-
dants’ motion to supplement the
pretrial order
Filed Certificate of Service.
Filed Affidavit of delivery letter from
Mr. Sherwood, Memo of Points and
Authorities, and Reply Brief of ARCO
to Charles Roe
Filed Affidavit of delivery of above-
mentioned documents to Christopher
Bayley
Filed Affidavit of Delivery of above-
mentioned documents to Ray Haman
Filed Affidavit of delivery of above-
mentioned documents to Tom
Brucker
Filed Motion of United States as
Amicus Curiae intervenor for leave to
file reply brief and affidavit
Filed Notice of motion of United
States as Amicus Curiae intervenor for
leave to file reply brief and affidavit for
6/25/76
Lodged Order granting motion
Lodged Reply Brief of the United
States as Amicus Curiae
Filed Seatrain’s Response to defen-
dants’ motion to supplement Pretrial
Order
Filed Reply Brief of the United
States as Amicus Curiae
Filed Motion to supplement Pre-
Trial order
DATE
June 25
July 2
July
July
July
Aug.
Aug.
Aug.
Aug. 18
Sept. 24
Sept
Be
14
15
NR
97
”
1
10s
Docket Entries 3
=
PROCEEDINGS
Filed Pretrial Order
Def. State of Washington's motion to
amend PTO granted. Deft. Evans’
motion to dismiss denied. Pitf. arco's
motion to supplement pretrial order
granted.
Ent. hearing on merits. Argument
heard. Case taken under advisement.
Filed Motion of Young Lawyers
Section to Withdraw as Amicus Curiae
and Order. Counsel notified.
Filed Supplemental Brief of Plaintiff
Atlantic Richfield Company on Injunc-
tive relief
Filed Affidavit of Mailing.
Filed Affidavit of delivery of arco
brief on The Prosecuting Attorney,
Tom Brucker, Lee Johnson, Raymond
W. Haman
Filed brief of defendants and inter
vening defendants on injunctive relief
Filed transcript of proceedings
Filed Reply Brief of Plaintiff Atlantic
Richfield Company on _ injunctive
reliet
Filed Certificate of Service
Filed and entered Opinion. Copy to
counsel by Court.
Filed and entered Order declaring the
Washington State Tank Law as null
and void. No party shall recover costs.
Copy to counsel by Court
Filed and entered Judgment. Copy to
counsel
Filed Motion of Plaintiff Atlanti
Kichtield Company tor Permanent
14
DATE
Sept.
NR.
109
110
112
114
15
Docket Entries
PROCEEDINGS
Injunction in Support of Declaratory
Judgment
Filed Notice of Motion of Plaintiff
Atlantic Richfield Company for
Permanent Injunction in Support of
Declaratory Judgment; Affidavit of
Byron E. Milner and Richard E.
Sherwood; and Memorandum of Points
and Authorities in Support Thereof
Filed Affidavit of Richard E. Sher-
wood in Support of Plaintiff Atlantic
Richfield Company's Motion for
Permanent Injunction in Support of
Declaratory Judgment
Filed Affidavit of Byron E. Milner in
Support of Plaintiff Atlantic Richfield
Company's Motion for Permanent
Injunction in Support of Declaratory
Judgment
Filed Memorandum of Points and
Authorities in Support of Plaintiff
Atlantic Richfield Company's Motion
for Permanent Injunction in Support of
Declaratory Judgment
Filed Motion for Order Shortening
Time to give Notice
Lodged Order Shortening Time to
Give Notice
Lodged Order of Permanent
Injunction
Filed Response of Environmental
Intervenors in Opposition to Plaintiff's
Motion for Shortening of time for
hearing
Filed Reponse of Governor Daniei J.
Evans and Other State defendants in
DATE
Oct.
Oct.
«31 9
NR.
116
17
118
124
Docket Entries 5
PROCEEDINGS
Opposition to Atlantic Richfield Com-
pany’s Motion for Shortening Time to
Give notice
Fiied Response of Defendant Bayley
in Opposition to Plaintiff's Motion to
Shorten Time
Filed Defendant Bayley’s Motion
Requesting Hearing of ARCO's Motion
for Permanent Injunction
Filed Notice of defendant Bayley’s
Motion Requesting Hearing for October
8 or October 15
Filed Certificate of Service
Filed Affidavit of Service
Filed Defendant Prosecutor Bayley’s
Memorandum in Opposition to arco’s
Motion for Permanent Injunction and
in Support of Defendants’ Motion tor
Stay.
Filed defs.’s Motion to Stay Enfor-
cement of Judgment and Any Injunc-
tive Relief Ordered by the Court
Filed Memorandum of Governor
Daniel J. Evans and Other State
defendants in Oppesition to Motion for
Permanent Injunction and in Support
of Stay of Judgment of Court Pending
Appeal
Filed Notice of Motion to Stay
Enforcement of Judgment and any
Injunctive Relef Ordered by the Court
fer 10/15/76
Lodged Order Denying Plaintiffs
Motion for Permanent Injunction
Lodged Order Granting Plaintitf's
Motion for Permanent Injunction and
16
DATE
Oct. 15
Oct. 21
Oct. 26
NR.
130
Docket Entries
PROCEEDINGS
Staying Effective Date of Order of
Permanent Injunction
Lodged Order Granting Permanent
Injunction and Denying a Stay
Filed Certificate of Service
Filed Response of Environmental
Intervenors to Plaintiff's Motion for
Permanent Injunction in Support of
Declaratory judgment.
Def.’s motion to stay enforcement
continued subject to call.
Filed def. State of Wash.'’s Notice of
Appeal
Filed cost bond in amount of $300
thru Fireman's Fund for appeal
Filed Reply Memorandum of Plain-
tiff Atlantic Richfield Company in
Support of its motion for injunctive
relief and in opposition to Defendants’
motion to stay enforcement of
judgment.
Ent. order setting hearing on Plain-
tiffs’ Motion for permanent injunction
in support of declaratory judgment for
11/12/76 at 9:30 A.M. Counsel advised
by letter.
Mailed certified copies of Notice of
Appeal and docket entries to Circuit
Court of Appeals
Filed Affidavit of Herbert H. Zachou
in Support of plaintiff Atlantic
Richfield Company's Motion for
permanent injunction
Ent. record of hearing on Prelim. Inj
and motion for stay
in Support of Declaratory
Judgment
DATE
Nov. 19
Nov. 22
Nov. 22
Nov. 23
Dec. 20
NR.
131
132
133
134
135
136
137
138
139
140)
14)
Docket Entries 17
PROCEEDINGS
Filed and entered Order of Perman-
ent Injunction. Order is stayed until
the 15th day of December 1976. Copy
to all counsel.
Filed Notice of Appeal (by State of
Wa.) to the Supreme Court of the
United States.
Filed Notice of Appeal to the
Supreme Court of the United States by
Intervenor defendants. Copy to
Filed Notice of Appeal to the
Supreme Court of the United States by
Prosecuting Attorney
Filed Notice of Appeal to the United
States Court of Appeals for the Ninth
Circuit by State of Wash.
Filed def. State of Wash.’s Motion for
Order Suspending Processing of Ap-
peals to the United States Court of
Appeals for the Ninth Circuit
Lodged Order Suspending Processing
of Appeals to the United States Court
of Appeals for the Ninth Circuit
Filed Certificate of Service.
Filed Order Suspending Processing of
Appeals to the United States Court of
Appeals for the Ninth Circuit. Copy to
counsel.
Filed Certified copy of Order from
Supreme Court continuing stay of order
of permanent injunction until further
order of that Court.
Filed Opinion on Application of Stay,
from Circuit Justice of Supreme
Court
Filed Request for Certification of
Record
18 Docket Entries Complaint 19
DATE TR. PROCEEDINGS
- COMPLAINT FOR
or DECLARATORY AND
, . INJUNCTIVE RELIEF
Jan. 13 142 Filed copy of letter from Supreme Leone Geeenemener
Court granting stay of order of
permanent injunction.
oF WASHINGTON
TANKER LAW
Jan. 12 Mailed record on appeal to Supreme (Three Judge Court)
Court.
Mar. 7 143 Filed certified copy of Statement of
Mea: +e " \ Cru. ACTION
jurisdiction from Supreme Court. No. C 75-648
(Names, addresses, and telephone numb-rs of attorneys
omitted in printing.)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
ATLANTIC RICHFIELD COMPANY,
Plaintiff,
Vv.
DANIEL J. EVANS, Governor of the
State of Washington; SLADE
GORTON, Attorney General of the
State of Washington; WILLIAM C.
JACOBS, Chairman, and HARRY A.
GREENWOOD, BENJAMIN W.
JOYCE, PHILIP H. LUTHER and
J. Q. PAULL, Members, Board of
Pilotage Commissioners; and DAVID
S. McEACHRAN, Whatcom County
Prosecutor,
Defendants
Plaintiff for its complaint herein alleges as follows:
Nature of the Case
1. This is an action to declare unconstitutional and void and
to enjoin the enforcement of Chapter 125, 1975 Laws of the State
20 Complaint
of Washington, enacted as Substitute House Bill No. 527, 44th
Legislature, Ist Extraordinary Session (hereinafter “the Tanker
Law”). The Tanker Law prohibits oil tankers of a certain size from
entering Puget Sound and imposes certain design, equipment,
pilotage and tugboat requirements on other oil tankers entering
Puget Sound. The Tanker Law is unconstitutional on the following
grounds:
(a) It invades a field of regulation which has been
preempted by the federal government, and is thus invalid
under the Supremac lause of the United States
Constitution (Article VI, Clause 2);
(b) It conflicts with federal stat....s and regulations and
is thus invalid under the Supremacy Clause;
ic) It imposes undue burdens u interstate and foreign
commerce, and thereby conflicts with federal power under t
Commerce Clause of the United States Constitution (Article
I, Section $, Clause 3) to regulate such commerce.
(d) It invades a field of regulation in which the federal
government has recognized the primacy of international
agreement and cooperation, and thereby conflicts with federal
power to late foreign affairs, to regulate foreign commerce
(Article I, Section 8, Clause 3), and to make treaties (Article
Il, Section 2, Clause 2).
(e) It conflicts with international agreements to which
the United States is a party, and is therefore invalid under
the Supremacy Clause;
Jurisdiction and Venue
2. The jurisdiction of this Court is invoked under 28 U.S.C.
§$§ 1331(a) and 1337. The matter in controversy exceeds $10,000,
exclusive of interest and costs. This action presents an actual case
or controversy appropriate for declaratory relief pursuant to 28
U.S.C. § 2201.
3. This action seeks injunctive relief against the enforcement
of the State statute on the ground that it is unconstitutional, and
therefore it must be heard and determined by a three-judge court
pursuant to 28 U.S.C. § 2281.
Complaint 21
4. The venue of this action is in this Court pursuant to 25
U.S.C. § 1391(b).
Parties
5. Plaintiff Atlantic Richfield Company is a Pennsylvania
corporation with its principal place of business at Los Angeles,
California. Atlantic Richfield is an integrated petroleum company,
active in all phases of exploration, development, production,
transportation, refining and marketing of petroleum and
petroleum products. Atlantic Richfield owns and operates a
refinery on Puget Sound, at Cherry Point, near Ferndale,
Washington, which is primarily supplied by oil tankers subject to
the challenged Tanker Law.
6. Defendant Daniel J. Evans is Governor of the State of
Washington, and, as the State's chief executive, is charged with
overall responsibility for enforcement of the state's laws, including
the Tanker Law challenged herein. Defendant Slade Gorton is
Attorney General of the State of Washington, and in such capacity
is responsible for enforcing the State's laws, including the Tanker
Law challenged herein. Defendant William C. Jacobs is Chairman
of the Board of Pilotage Commissioners, an administrative body
established by Revised Code of Washington (hereinafter R.C.W.)
§ 88.16.010 which, pursuant to Section 88.16.030, is charged with
administration of the Tanker Law. Defendants Harry A.
Greenwood, Benjamin W. Joyce, Philip H. Luther, and J. Q. Paull
are the other members of the Board of Pilotage Commissioners.
Defendant Davis S. McEachran is Prosecutor of Whatcom County,
in which Atlantic Richfield’s Cherry Point refinery is located, and
has jurisdiction to bring criminal prosecution against Atlantic
Richfield for violation of the Tanker Law taking place in that
county.
The Challenged Statute
7. The Tanker Law was enacted by the State Legislature in
May 1975 and signed into law by Governor Evans on May 29,
1975. A copy of the statute is annexed hereto as Appendix I. The
statute goes into effect on September 8, 1975; the Board of
Pilotage Commissioners, by order dated August 11, 1975, has
ts
te
Complaint
declared its intention to begin enforcement of the statute on such
date.
8. The Tanker Law imposes substantial restrictions on the
operation of oil tankers in Puget Sound, for the stated purpose
of protecting Puget Sound and adjacent waters and shorelines
from the danger of oil spills. Section 2 of the statute provides that
any oil tanker, whether enrolled (i.e., engaged solely in interstate
as opposed to foreign commerce) or registered (i.e., entitled to
engage in foreign commerce), of 50,000 deadweight tons (DWT)
or more, must employ a pilot licensed by the State of Washington
while navigating Puget Sound. Section 3(1) of the statute prohibits
any oil tanker of more than 125,000 DWT from entering Puget
Sound. Section 3(2) prohibits any oil tanker between 40,000 DWT
and 125,000 DWT from entering Puget Sound unless it has all
of the following: shaft horsepower of at least one horsepower for
each 2.5 DWT; twin screws; double bottoms; two radars, one of
which must be collision-avoidance radar; and any other
navigational systems as may te prescribed by the Board of
Pilotage Commissioners. A proviso to Section 3(2), however,
waives compliance with that Section if the tanker is under the
escort of tugboats with an aggregate horsepower of 5‘. of its
deadweight tonnage.
9. The Tanker Law adds these statutory provisions to the
State Pilotage Act, R.C.W. Chapter 88.16. Pursuant to R.C.W.
Section 88.16.030, the Board of Pilotage Commissioners is charged
with administration of the Tanker Law and is authorized to
promulgate rules and regulations thereunder. Pursuant to Section
88.16.150, violation of the Tanker Law is a misdemeanor.
Federal Preemption
10. The Tanker Law is invalid and unconstitutional because
it invades a field of regulation which has been preempted by
federal law. The United States has undertaken comprehensive
regulation of oi] tanker design and construction, safety and
equipment requirements, navigational controls and _ vessel
movement control systems. The relevant federal statutes and
regulations evidence a congressional intention completely to
Complaint 23
occupy this field and to establish a uniform system of federal
regulation of oil tankers to the exclusion of state authority.
11. Federal occupation of the relevant field is demonstrated
by the Ports and Waterways Safety Act of 1972 (hereinafter
PWSA), Pub. L. 92-340, 86 Stat. 424 (July 10, 1972). A copy of
this statute is annexed hereto as Appendix II. PWSA establishes
a comprehensive regulatory scheme for vessel design, equipment
and navigational control, and thus embraces both the objective
and the regulatory scheme of the Tanker Law. While Titles I and
Il of PWSA overlap, Title I is primarily concerned with vessel
traffic and navigational control, while Title II is primarily
concerned with vessel design and equipment.
12. Title I of PWSA, 33 U.S.C. §§ 1221 et seq., gives the
Secretary of Transportation authority to promulgate
regulations
“to protect the navigable waters and the resources therein
from environmental harm resulting from vessel or structural
damage, destruction, or loss” (§ 101).
This broad authority specifically includes regulation of vessel
traffic in hazardous areas (§ 101[3]) by
a) limitation of vessel size (§ 101[3)[iii] and
b) restriction of vessel operation to those having particular
characteristics or capabilities necessary for safe operation
(§ 101[3}fiv}).
13. Title | guarantees that State and local governments have
an opportunity to participate in the development of federal
regulations and standards by providing in Section 104:
“In preparing proposed rules, regulations and standards, the
Secretary shall provide an adequate opportunity for
consultation and comment to State and local governments,
representatives of the marine industry, port and harbor
authorities, environmental groups, and other interested
parties.”
24 Complaint
14. In determining the need for and substance of such
regulations, Section 102(e) directs the Secretary to consider a wide
range of factors including environmental considerations, the need
for efficient conduct of maritime commerce and the economic
impact of such regulations.
15. Section 102(b) of Title I confirms congressional intent to
preempt as to vessels by specifically permitting stricter state
regulation “for structures only.”
16. Pursuant to 49 C.F.R. § 1.46(0)(4)(1974), the Secretary
of Transportation has delegated his rulemaking authority under
the PWSA to the Commandant of the Coast Guard. The Coast
Guard has promulgated regulations to implement Title I of the
PWSA. Such rules delegate authority to the Captain of the Port
to determine on a case-by-case basis whether conditions require
establishment of vessel size and speed limitations or restriction
of vessel operations to vessels having particular operating
characteristics and capabilities necessary for safety. 40 Fed. Reg.
6653 (Fed. 13, 1975), 33 C.F.R. Part 160. Additional regulations
proposed by an advance notice of proposed rulemaking would
direct the Captain of the Port, in exercising such authority, to
consider, among other factors, the hull design of the tanker,
including the presence or absence of a double bottom and cargo
segregation; the tanker’s propulsion system, including its
horsepower, number of shafts, and other variables which affect
controllability and maneuverability; whether tugboats are in
attendance; and whether a pilot is aboard. 39 Fed. Reg. 24157
(June 28, 1974). The advance notice of proposed regulations would
also require various navigational devices, including two radars, one
of which must be equipped with an anti-collision device, on oil
tankers over 10,000 gross tons. Jd. The Coast Guard has
promulgated one set of regulations directed specifically to Puget
Sound, establishing a vessel traffic control system to reduce the
likelihood of an accident. 39 Fed. Reg. 25430 (July 10, 1974), 33
C.F.R. Part 161, Subpart B.
17. Title II of the PWSA amended the Tank Vessel Act, 46
U.S.C. § 391a, for the express purpose of “protecting the marine
environment” by establishing comprehensive standards of design,
sll
Complaint 25
construction, equipment and operation of oil tankers. Section 3
of the amended statute gives the Secretary of Transportation
broad authority to adopt regulations with respect, inter alia, to
“the design and construction * * * of such vessels, including
* * * gsuperstructures, hulls, * * * equipment,
appliances, [and] propulsive machinery, * * * and with
respect to the operation of such vessels,” thereby including all of
the subject matter of the Washington Tanker Law.
18. Title Il identifies the objectives of the regulations to be
adopted by the Secretary of Transportation:
“Such rules and regulations shall, to the extent possible,
include but not be limited to standards to improve vessel
maneuvering and stopping ability and otherwise reduce the
possibility of collision, grounding, or other accident, to reduce
cargo loss following collision, grounding, or other accident,
and to reduce damage to the marine environment by normal
vessel operations such as ballasting and deballasting, cargo
handling, and other activities.” (Sec. 7)
19. Title I] also establishes requirements for inspection of
both domestic and foreign tankers (Sec. 5 and 6) and further
provides that the Secretary may deny entry to the U. S. waters
of tankers in violation of the statute or regulations
20. Pursuant to the authority of Title II, the Coast Guard
published proposed comprehensive desigt: and construction
regulations applicable to tankers in the coastwise (interstate)
trade. 39 Fed. Reg. 24150 (Jume 28, 1974). In a Final
Environmental Impact Statement dated August 15, 1975, the
Coast Guard announced that such regulations are to be made final,
with minor changes, on or about September 15, 1975, It also
announced that substantially similar, if not identical, regulations
to implement Title I] as to tankers engaged in foreign commerce
would be promulgated in the near future. Section 7(C) of PWSA
directs that such regulations be promulgated not later than
January 1, 1976.
21. The regulations referred to in Paragraph 20 completely
cover the field of tanker design, construction and required
equipment. They require segregated ballast tanks on new tankers
26 Complaint
over 70,000 DWT, which must be distributed between the cargo
tanks and the vessel's hull or between cargo wing tanks so as to
mitigate the effects of collisions or groundings. They impose
restrictions on the size and arrangement of cargo tanks in new
tankers, including requirements for segregation of cargo tanks, in
order to limit the outflow of oil in case of accident. The regulations
provide incentive for the adoption of double bottoms and/or
double sides by relaxing restrictions otherwise applicable to cargo
tank arrangement and size. The regulations do not require double
bottoms, twin screws, or increased horsepower. Imposing such
requirements was considered by the Coast Guard and expressly
rejected, as explained in the environmental impact statement, in
large part because of the importance of avoiding unilateral action
by the United States not in conformance with international
agreements.
22. In its consideration of the PWSA, Congress recognized
that regulation of oil tanker design, construction, equipment and
operation was international in scope. Congress was particularly
aware of the then impending 1973 International Conference on
Marine Pollution held under the auspices of the Inter-
Governmental Maritime Consultative Organization (IMCO), an
arm of the United Nations. Therefore, in section 7(C) Congress
authorized the Secretary to delay implementation of Title II until
after this Conference, and to defer to such rules and regulations
as might be established by “international treaty, convention, or
agreement, which generally address the regulation of similar topics
for the protection of the marine environment.”
23. Congress’ concern for international uniformity in the
regulation of tanker design was recognized by the Coast Guard,
for its proposed regulations under Title II are consistent with and
incorporate the standards enunciated in the International
Convention for the Prevention of Pollution from Ships, 1973,
adopted by the International Conference on Marine Pollution.
24. Congress has demonstrated in other statutes both its
intent to preempt the regulation of the field and its concern for
international uniformity.
Complaint
Conflict With Federal Statutes
25. The Tanker Law is invalid and unconstitutional under the
Supremacy Clause because it conflicts with various federal
statutes and regulations.
26. Section 2 of the Tanker Law, requiring all tankers over
50,000 DWT, whether enrolled or registered, to employ a pilot
licensed by the State, conflicts with federal pilotage laws to the
extent that it requires an enrolled vessel to employ a local pilot,
and is thus invalid under the Supremacy Clause. 46 U.S.C. § 264
provides, in pertinent part: | |
“[E}very coastwise seagoing steam vessel [including oil
tankers, however propelled, 46 U.S.C. § 391a] subject to the
navigation laws of the United States, and to the rules and
regulations aforesaid, not sailing under register, shall, when
under way, except on the high seas, be under the control and
direction of pilots licensed by the Coast Guard.
46 U.S.C. § 215 provides:
“No State or municipal government shall impose upon
pilots of steam vessels any obligation to procure a State or
other license in addition to that issued by the United States
¥-
While Section 215 further provides that the statute shall not be
construed “to annul or affect any regulation established by the
laws of any State, requiring vessels entering or leaving a port in
any such State ily lls to take a pilot duly licensed or
authorized by the laws of such State,” this proviso applies only
to vessels “other than coastwise steam vessels.” The net effect of
these statutes, as they have been consistently interpreted for over
106 years, is that a State may require State-licensed pilots on
rezistered vessels, but may not require such pilots on enrolled
vessels.
27. Section 3(1) of the Tanker Law, proh‘biting any oil tanker
over 125,000 DWT, whether enrolled or registered, from entering
Puget Sound, conflicts with the federal shipping laws which
authorize enrolled and licensed vessels to engage in interstate
commerce. 46 U.S.C, § 319 requires that every vessel of twenty
tons or more engaged in interstate commerce, other than
28 Complaint
registered vessels, be enrolled and licensed. 46 U.S.C. § 251 grants
to enrolled and licensed vessels “the privileges of vessels employed
in the coasting trade,” ie, the right to engage in interstate
commerce. Pursuant to these statutes and the rights granted
thereunder, a State may not prohibit a federally enrolled and
licensed vessel from entering its navigable waters.
28. Section 3(1) of the Tanker Law also conflicts with the
tederal shipping laws which authorize registered vessels to engage
in interstate and foreign commerce. 46 U.S.C. § 221 grants to
registered versels “the rights and privileges appertaining to
* * * vessels of the United States.” Pursuant to this statute
and the rights granted thereunder, a state may not prohibit a
federally registered vessel engaged in the exercise of these rights
from entering its navigable waters.
29. The Tanker Law conflicts with the PWSA by imposing
requirements beyond those contained in regulations promulgated
by the Coast Guard. In promulgating such regulations, the Coast
Guard is required to consider a broad range of factors, including
the efficient conduct of maritime commerce, the extent of
interference with the flow of commercial traffic, the economic
impact of such regulations, the extent to which such regulations
will contribute to protection of the marine environment, and the
practicability of compliance therewith, including cost and
feasibility (PWSA §§ 102(e), 201(4)). The Coast Guard's decision
not to impose more stringent requirements with respect to tanker
design, construction, equipment, and navigational controls than
those imposed by the present regulations and those to be
promulgated represents a controlling federal determination that
further requirements should not be imposed. For example, as
noted in Paragraphs 20 and 21 herein, the Coast Guard has
expressly rejected requiring double bottoms, twin screws or
increased horsepower.
30. The Tanker Law conflicts with the PWSA by prohibiting
tankers over 125,000 DWT holding certificates or permits issued
pursuant to Sections 5 and 6 of Title II from entering Puget Sound
and by imposing on smaller tankers requirements beyond those
Complaint 29
necessary to obtain such certificates or permits. Sections 5 and
6 require that all oil tankers be inspected by the Coast Guard;
that foreign tankers obtain a certificate of compliance with rules
and regulations promulgated for protection of the marine
environment; that domestic tankers obtain a certificate of
compliance with rules and regulations promulgated for vessei
safety and for protection of the marine environment; and that
domestic tankers obtain a permit authorizing the carriage of oil.
This inspection, certification and permit procedure represents a
controlling federal determination that the particular vessel meets
all necessary safety and environmental standards and is entitled
as a matter of right to engage in the carriage of oil.
Invalidity Under Commerce Clause
31. The Tanker Law impinges upon federal power to regulate
interstate and foreign commerce and imposes an undue burden
upon such commerce, and !s cherefore invalid under the Commerce
Clause-of the United States Constitution (Article I, Section 8,
Clause 3).
32. The establishment of standards governing the design,
construction, equipment, and operation of oil tankers vitally
affects a phase of interstate and foreign commerce in which
national uniformity is essential and which therefore demands
exclusive federal regulation. If the State of Washington can
constitutionally impose such standards, so may each of the other
coastal states, and each state is likely to impose differing and
inconsistent requirements. Such a patchwork of state regulation
would substantially and adversely affect the transportation of
crude oil to the United States. Because of the enormous capital
expenditures required to construct oil tankers, neither Atlantic
Richfield nor any other company can maintain a separate fleet
of tankers to serve refineries in each state in which it operates.
Economical use of tankers requires the flexibility for each to serve
many ports. The Tanker Law, alone or in conjunction with
differing requirements of other states, would restrict the ports at
which tankers can call and thereby prevent the efficient use of
tankers. The threat of proliferation of differing state laws makes
planning and censtruction of new tankers to serve the United
. hs Complaint
States difficult if not impossible. The cumulative effect of these
burdens would substantially increase the cost of crude cil to
American refineries and the cost of petroleum products to
American consumers.
33. The Tanker Law unduly burdens interstate commerce.
For example, Atlantic Richfield’s Cherry Point refinery was
designed and constructed specifically to refine crude oil from the
North Slope of Alaska. Such oil is to be transported by the
Trans-Alaska Pipeline, presently under construction, to the Port
of Valdez, Alaska, and from there by tanker to the lower 48 states.
Section 3(1) will require use of greater numbers of tankers, thus
slowing the movemert and increasing the cost of such oil to
refineries in Washington and increasing the cost of petroleum
products to consumers in Washington and other states. The
proviso to Section 3(2) will require the use of tugboats to avoid
the economic impact of the design and equipment requirements
of that Section, and Section 2 will require the use of local pilots,
— slowing the movement and increasing the cost of Alaskan
oil.
34. The Tanker Law unduly burdens the foreign commerce
of the United States. For example, it will slow the movement and
increase the cost of oi] from the Persian Gulf to Cherry Point.
It will also exclude from Puget Sound ports a large number of
vessels of foreign registry and disrupi trade and other relations
with such foreign countries.
35. The Tanker Law adversely affects settled practices of
international trade in the oil industry. Tankers over 125,000 DWT
are in general use throughout the world, and many more are under
construction, including four being constructed for Atlantic
Richfield. No smaller tanker currently afloat meets the design and
eyuipment standards of Section 3(2). While this Section permits
a smaller tanker to escape those standards by use of tugboats,
it does so only at substantial cost. The local pilot requirement
of Section 2 adds additional cost.
Invalitity Under Foreign Affairs Power
36. The Tanker Law conflicts with the federal power to make
C omplaini Ad
treaties (Article I], Section 2, Clause 2), to regulate foreign
commerce (Article 1, Section &, Clause 3), and to regulate foreign
affairs.
37. The conduct of international shipping of oil by nkers
is a matter of major world-wide concern. Most of the Ate of
is carried from producing countries to consuming, countries by
tanker, and such tanker operations constitute a substantial
percentage of the total international mariti commerce. The
international tanker fleet contains ships flying the flags of many
different countries. Many tankers of foteign registry, including
tankers exceeding 125,000 DWT, have ca at Cherry Point or
other United States ports, and will be adversely affected, if not
excluded, by the Tanker Law or the enactment of similar state
laws. Oil tankers are constructed by shipbuilders in a number of
foreign nations, shipbuilders will also be adversely affected by the
Tanker Law or the enactment of similar state laws. To the extent
that regulation of oil tankers affects the availability and cost of
oil to consuming nations, such regulation is vitally important to
virtually every nation in the world. To the extent that regulation
of oil tankers imposes limitations on the use of the world’s tanker
fleet and affects the shipbuilding industry of many foreign nations,
such regulation is of significant concern to the principal maritime
trading nations. Because of the international nature of tanker
ownership, construction, and trade patterns, the regulation of
tanker design, construction and operations by international
agreement is desirable, if not essential.
38. Prevention of oi! pollution by establishment of standards
of tanker construction, design, equipment and operation is also
an issue of major international concern. As is more particularly
described in paragraphs 43-47 below, several international
conferences have been held in recent years and have achieved
substantial progress in obtaining international agreement on
measures to prevent oil pollution resulting from oil tanker
operations. Further conferences to consider additional regulations
to prevent such pollution are planned. As these efforts recognize,
pollution of the seas by oil tankers is an international problem
which requires a coordinated international solution to achieve any
significant progress.
$2 Complaint
39. The federal government has recognized that international
agreement and cooperation is essential in this area. The United
States has been active in the several international conferences, and
has been instrumental in securing the international agreements
and cooperation thus far achieved. Congress in its passage of the
PWSA recognized the necessity for international solution of the
pollution problem and specifically authorized the Coast Guard to
defer to the standards established by international agreement. The
regulations to be promulgated by the Coast Guard under the
PWSA in fact incorporate and are substantiaily based upon the
standards established by international agreement. The Coast
Guard rejected additional regulations in large part because of its
view that international cooperation in oil pollution control efforts
is essential.
40. Unilateral action by the State of Washington to impose
standards of tanker construction, design, equipment and operation
substantially undercuts the efforts of the federal government to
secure international agreement on tanker regulation, and thus
infringes the treaty-making and foreign affairs powers of the
federal government.
41. Unilateral action by the State of Washington to impose
standards of tanker construction, design, equipment and operation
substantially and adversely affects the foreign trade and foreign
relations of the United States. Such action by the State could
cause loss of foreign trade, retaliatory actions by foreign
governments against United States shipping, and adverse effects
on foreign relations, particularly with major shipping and
shipbuilding nations. Such regulation of oil tankers must be
prescribed exclusively by the federal government.
Conflict With International Agreements
42. The Tanker Law conflicts with the obligations of the
United States under several international agreements and is
therefore invalid under the Supremacy Clause.
43. The Safety of Life at Sea Convention of 1960 (SOLAS),
to which the United States is a party, requires periodic inspection
Complaint 433
by the government of the country in which a ship is registered
of its “hull, machinery and equipment * * * in order to
insure that their condition is in all respects satisfactory * * *
for the service for which the ship is intended.” Chapter I,
Regulation 10. Regulation 12 provides that the government shall
thereafter issue the ship a certificate attesting to the satisfactory
condition of the ship for such service. Regulation 17 requires that
each nation party to the Convention shall accept the certificate
issued by the government of registry for all purposes under the
Convention. The Tanker Law, by excluding certificated oil tankers
of foreign registry from entering Puget Sound, or penalizing such
tankers for not meeting the additional requirements of the
Washington law, constitutes a refusal to recognize the certificate
of the foreign, government that the vessel is fit for the service in
which it is engaged, and therefore conflicts with the obligations
of the United States under SOLAS.
44. SOLAS contains a number of provisions specifying
construction standards, design features, and required navigational
equipment applicable to oil tankers, as well as cargo and passenger
ships. Among such provisions are Chapter II, Regulation 29,
specifying required steering gear; Chapter II, Regulation 54,
specifying standards of construction and materials for ships of
4,000 gross tons or more; Chapter II, Regulation 65, requiring
certain fire fighting equipment; and Chapter IV, Regulation 3
requiring radiotelegraph equipment on ships of 1,600 gross tons
or more. Additional requirements imposed by the Tanker Law in
the area of vessel design and construction and required safety and
navigation equipment are in derogation of the international
scheme to which the United States has subscribed, and are
therefore invalid.
45. The Tanker Law also conflicts with the provisions of the
International Convention for the Prevention of Pollution of the
Sea by Oil, 1954, as amended on October 15, 1971, pursuant to
Resolution A.246 of the Seventh IMCO Assembly. Annex C of this
Convention, as amended, establishes standards governing cargo
tank arrangement and segregation, and imposes limitations upon
tank size for new oil tankers, for the purpose of protecting the
marine environment. The standards adopted by IMCO were those
34 Complaint
advanced by the United States in the IMCO Assembly. The
United States has not yet ratified the Convention, but the Oni
Pollution Act Amendments of 1973, Pub. L. 93-119, 87 Stat. 424
October 4, 1973), adopted its standards. 33 U.S.C. § 1004a. This
statute will become operative only upon ratification of the
Convention by the United States. In the meantime, however ‘ine
Coast Guard has published proposed regulations which would put
the IMCO standards into effect administratively. The Washington
Tarker Law, by imposing additional and differing standards
intended to achieve the same purposes, is in conflict with the
international scheme in which the United States has played a
central part.
46. The ‘Tanker Law aiso conflicts with the International
Convention for the Prevention of Pollution from Ships, adopted
in November 1973 by the International Conference on Marine
Pollution. This Convention establishes a comprehensive scheme
regulating the discharge of oil from tankers and the design and
construction of new oil tankers in order to protect the marine
environment. In Regulation 13, the Convention requires each new
ot] tanker of 70,000 DWT or more to have segregated baliast tanks.
Chapter III imposes design and construction standards intended
to minimize oil pollution from tankers in the event of accident.
Regulation 24 adopts the provisions of the International
Convention for the Prevention of Pollution of the Sea by Oil
respecting limitation of size, and segregation and arrangement of
cargo tanks. Regulation 25 establishes standards designed to
insure the stability of tankers in the event of accident so as to
jimit the amount of oil spilled in such event. Regulation 23
specifies the calculations required to determine the precise
standards imposed by Regulations 24 and 25, and in such
calculations provides for credit if the tanker is fitted with a double
bottom. Regulation 4 requires periodic tanker inspection to insure
that the standards of the Convention are met, and Regulation 5
provides for issuance of a certificate of compliance to tankers
meeting such requirements.
47. The United States actively participated in the
proceedings leading to adoption of the Convention. While the
Convention has not yet been ratified by the United States, Section
Complaint 35
TIC) of Title Il of the PWSA authorizes che Coast Guard to defer
to standards established by the Convention, and Coast Guard
regulations scheduled to become effective September 15 in fact
do adopt these standards. The Washington Tanker Law
establishing additional and differing standards for the
construction, design and operation of oil tankers is in conflict with
the international scheme in which the United States has played
a substantial part.
Irreparable Injury
48. Enforcement of the Tanker Law by the defendants will
cause Atlantic Richfield great and immediate irreparable
injury.
49. Tankers over 125,000 DWT have been constructed in
recent years and are now in general use throughout the world
because they lower the cost of transporting oil in large quantities
and are the most economically efficient means of transporting such
oil. Tankers over 125,000 DWT have been calling regularly at
Atlantic Richfield’s Cherry Point refinery. Atlantic Richfield has
under construction four tankers over 125,000 DWT, at an
aggregate cost in excess of $200,000,000. Section 3(1) of the Tanker
Law, prohibiting all tankers over 125,000 DWT from entering
Puget Sound, thereby will deprive Atlantic Richfield of the most
efficient use of its existing and planned tanker fleet, including
tankers available on the world charter markets, and will adversely
affect the cost of serving and operating its Cherry Point
refinery.
50. No tanker currently meets the design, construction and
equipment requirements of Section 3(2) of the Tanker Law.
Modification of existing tankers to comply with these
requirements would be prohibitively expensive. As a result,
Atlantic Richfield will be compelled to employ unnecessary
tugboats to escort each of its tankers to Cherry Point, at
considerable continuing cost. If such tugboats are unavailable in
sufficient sizes or numbers, Atlantic Richfield will incur further
costs as well as delays.
36 Complaint
51. Tanker construction requires exceptionally long lead
times. The design, construction and equipment requirements of
Section 3 of the Tanker Law, coupled with the threat of similar
statutes elsewhere, at the same time that the federal government
is imposing different standards, create uncertainty and make it
impracticable for Atlantic Richfield to plan effectively to meet its
future oil transportation needs.
52. The requirernent of Section 2 of the Tanker Law ‘hat local
pilots be employed on all tankers over 50,000 DWT imposes an
additional continuing cost on most tankers used by Atlantic
Richfield to serve its Cherry Point refinery.
WHEREFORE, piaintiff prays:
1. That the Tanker Law be declared unconstitutional, void
and unenforceable;
2. That defendants, their agents, and any person acting on
their behalf, at their direction or under their control be
permanently enjoined from taking any action to implement or
enforce the provisions of the Tanker Law;
3. That pending final determination of this action,
defendants, their agents, and any person acting on their behalf,
at their direction or under their control be, upon further
application by plaintiff, preliminarily enjoined from taking any
action to implement or enforce the provisions of the Tanker Law;
and
4. That plaintiff recover its costs of suit herein together with
such other and further relief as the Court may deem just and
proper.
DATED: September 8, 1975
O'MELVENY & MYERS
WARREN CHRISTOPHER
RICHARD E. SHERWOOD
Complaint 47
B. BOYD HIGHT
IRA M. FEINBERG
By:
Richard E. Sherwood
PERKINS, COIE, STONE,
OLSEN & WILLIAMS
DAVID E. WAGGONER
THEODORE J. COLLINS
By:
David E. Wagoner
Attorneys for Plaintiff
Atlantic Richfield Company
ni oil
Pre-Trial Order 39
PRE-TRIAL ORDER
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. C 75-648
ATLANTIC RicnFieLD Company,
Plaintiff,
and
SEaATRAIN LINES, INCORPORATED,
Intervening Plaintiff,
vs.
Dantes. J. Evans, et al.,
Defendants,
and
CoaLiTion AGAINST On
POLLUTION, et al.,
Intervening Defendants.
TABLE OF CONTENTS
* Page
RE a RS a ee a ee
JURISDICTION AND VENUE .................
DT ditdduassandheikne ad ohd 6606646020 hae
THE CHALLENGED STATUTE................
Il. FACTS NOT TO BE CONTESTED ................
Il. NONEXCLUSIVE LIST OF STATUTES, REGULA-
TIONS AND INTERNATIONAL AGREEMENTS. ....
FEDERAL STATUTES AND REGULATIONS ...
INTERNATIONAL AGREEMENTS.............
STATE AND LOCAL STATUTES AND
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(*Page references omitted in printing )
40 Pre-Trial Order
PRETRIAL ORDER
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
THREE JUDGE COURT
(Names, addresses, and telephone numbers of attorneys omitted
in printing.)
As the result of a pretrial conference between attorneys for
plaintiff, defendants and intervenors, the following facts were
agreed upon, issues of fact and law framed and exhibits
identified:
I. ADMITTED FACTS
1. This is an action seeking to declare unconstitutional and
void and to enjoin the enforcement of Chapter 125, 1975 Laws
of the State of Washington, enacted as Substitute House Bill No.
527, 44th Legislature, Ist Extraordinary Session (hereinafter H.B.
527).
JURISDICTION AND VENUE
2. The jurisdiction of this Court is invoked under 28 U.S.C.
§§ 1331(a) and 1337. The matter in controversy exceeds $10,000,
exclusive of interest and costs. This action presents an actual case
or controversy appropriate for declaratory re.ief pursuant to 28
U.S.C. § 2201. Defendants represented by tise Office of the
Attorney General contend that the Eleventh Amendmeni to the
United States Constitution precludes this Court’s jurisdiction.
3. This action seeks injunctive relief against the enforcement
of a State statute on the ground that it is unconstitutional, and
therefore it must be heard and determined by a three-judge court
pursuant to 28 U.S.C. § 2281.
4. The venue of this action is in this Court pursuant to 28
U.S.C. § 1391(b).
Pre-Trial Order 41
PARTIES
5. Plaintiff Atlantic Richfield Company is a Pennsylvania
corporation with its principal place of business in Los Angeles,
California. Atlantic Richfield is an integrated petroleum company
in domestic and international commerce, active in all phases of
exploration, development, production, transportation, refining and
marketing of petroleum and petroleum products. Atlantic
Richfield owns and operates a refinery at Cherry Point, near
Ferndale, Washington, which is primarily supplied oy oil tankers
subject to challenged H.B. 527.
6. Seatrain Lines, Inc. is a Delaware corporation with its
principal place of business in New York. Seatrain Lines, Inc. owns
and operates vessels in domestic and international commerce and
is a shipbuilder in the United States. Seatrain Shipbuilding Corp..
a wholly owned subsidiary of Seatrain Lines, Inc., operates a
shipyard in Brooklyn, New York. (Both Seatrain Lines, Inc. and
Seatrain Shipbuilding Corp. are hereinafter referred to as
“Seatrain”™.)
7. Defendant Danie! J. Evans is Governor of the State of
Washington, and, as the State's chief executive, is charged with
seeing that the laws of the State, including H.B. 527, are faithfully
executed. Defendant Slade Gorton is Attorney General of the
State of Washington, and in such capacity is required to serve
as the legal advisor of state officers and to perform such other
duties as may be prescribed by law. Among these duties is to
institute and prosecute all actions and proceedings for, or for the
use of the state, which may be necessary in the execution of the
duties of any state officer. Defendant William C. Jacobs is
Chairman of the Board of Pilotage Commissioners, an
admmistrative agency of the State of Washington established by
Section 88.16.010 of the Revised Code of Washington (hereinafter
“R.C.W.”), which, pursuant to R.C.W. § 88.16.030, is charged with
administration of H.B. 527. Defendants Harry A. Greenwood,
Benjamin W. Joyce, Philip H. Luther, and J. Q. Paull are the other
members of the Board of Pilotage Commissioners. Defendant
David S. McEachran is Prosecuting Attorney of Whatcom County,
42 Pre-Trial Order
in which Atlantic Richfield’s Cherry Point refinery is located, and
is empowered to prosecute actions involving violations of H.B. 527
occurring in Whatcom 7 Oe
through the waters of Whatcom County when the place of
violation by the vessel cannot be determined.
8. Intervening defendant The Coalition Against Oil Pollution
is a non-partisan, non-profit corporation organized and existing
under the laws of the State of Washington, established for the
stated purposes of preservation of the beauty and natural
resources of Puget Sound; development of aquaculture and other
marine industries; encouragement of oceanographic research; and
creation of stringent laws governing the exploration, transporta-
tion, handling and refining of oil in the Puget Sound region. Its
principal office is located in Redmond, Washington. Intervening
defendant National Wildlife Federation (NWF) is a national,
non-profit organization incorporated under the laws of the District
of Columbia, with a principal place of business in that city. NWF
is a conservation-education organization the stated purpose of
which is to foster an awareness of the need to conserve and restore
the human environment and the natural resources of the United
States. Intervening defendant Environmental Defense Fund, Inc.
(EDF) is a non-profit, public benefit membership corporation
organized and existing under the laws of the State of New York.
Its principal office is located in East Setauket, New York, and
it maintains branch offices in Berkeley, California; Denver,
Colorado; New York, New York; and Washington, DC. EDF is
with information relevant to environmental issues, and to
Pre-Trial Order 43
Sound and who use the waters and shoreline of Puget Sound for
recreational and other purposes.
THE CHALLENGED STATUTE
9. H.B. 527 was passed by the Washington Legisiature in May
1975 and signed into law by Governor Evans on May 29, 1975.
A copy of the statute, now codified in R.C.W. ch. 88.16, together
with a message of the Governor relating to its approval, is annexed
as Exhibit A. The statute went into effect on September 8, 1975;
the Board of Pilotage Commissioners began enforcement of the
statute on that date.
10. H.B. 527 states, inter alia:
wTa8 ° °° ee tanker, whether enrolled or
mahal <0Gte Gaal Tsdockhe tent os ter, shall
be required to take a Washington state li pilot while
navigating Puget Sound and adjacent waters’. * * *
“Sec. 3. * * * (1) Any oil tanker, whether enrolled
or registered, of greater than one hundred and twenty-five
thousand deadweight tons shall be prohibited from 7s
“(2) An oil tanker, whether enrolled or registered, of
forty to one hundred and twenty-five thousand ht
tons may * * * {enter Puget Sound] if such
possesses all of the f ing standard safety features:
(a) Sah Dapempees Dp aati of ete Saamipanes
to each two and one-half deadweight tons;
(b) Twin screws; and
'The term “deadweight tons” is defined by the Board of Pilotage Commissioners
for purposes of H.B. 527 as the cargo-carrying capacity of a vessel, including
necenary fun it ore, and potable waters. an upremed in long tome (224
ton
> Puget Sound end edjecont woters” (hereinafter “Pugst Seund”) io defined in
H._B. 527 as these waters east of a line extending from Discovery Island Light
~
44 Pre-Trial Order
(c) Double bottoms, underneath all oil and liquid
cargo compartments; and
(d) Two radars in working order and operating, one
of which must be collision avoidance radar; and
(e) Such other navigational position location systems
oo easy bn qoanettned Gam Gens to Gane to ho bansd of
pilotage commissioners:
Provided, That, if such forty to one hundred and
twenty-five thousand deadweight ton tanker is in ballast
POS ee SON eS eee
horsepower equivalent to five percent
tons of that tanker, subsection (2) of this section shall
a tanker of less than forty thousand deadweight tons is
not subject to the provisions of this act.”
11. The Board of Pilotage Commissioners, on August 11,
1975, issued an order implementing H.B. 527. A true copy of such
order is filed herewith as Exhibit B.
12. H.B. 527 has been and will be applied to all oil tankers
in excess of 40,000 DWT which enter Puget Sound regardless of
the national flag such tankers fiy.
13. Atlantic Richfield has been complying with H.B. 527 since
it became effective. No Seatrain tanker has entered Puget Sound
since the effective date of H.B. 527.
Il. FACTS NOT TO BE CONTESTED
The following facts, while not admitted, are not to be
contested for purposes of this litigation. Each shall be admissible
in evidence, but each party reserves the right to contest the
materiality or relevance of such facts.
14. Atlantic Richfield owns and operates a refinery at Cherry
Point, near Ferndale, Washington. This refinery is located
Pre-Trial Order 45
adjacent to the Straits of Georgia, east of the line extending from
Discovery Island Light south to New Dungeness Light and within
the waters regulated by H.B. 527. It has docking facilities on these
waters. The Cherry Point refinery has the capacity to process
approximately 96,000 barrels’ of crude oil per day.
15. The Cherry Point refinery and associated facilities were
built and began operation in 1971 and are presently valued by
the Whatcom County assessor at approximately $154 million. The
refinery was designed and built to refine crude oil from the North
Slope of Alaska when it becomes available. The refinery is capable
of refining and has refined crude oil from other sources. Since
1971 the refinery has received sufficient crude oil to operate at
above 85 per cent of capacity each year, and Atlantic Richfield
presently plans to continue to operate the refinery at or above
that level. Alaskan North Slope oil is now expected to begin to
flow in 1977 and Atlantic Richfield presently intends to transport
its share of that oil from the southern terminus of the
Trans-Alaska Pipeline at Valdez, Alaska to Cherry Point and other
West Coast ports by tanker.
16. The following table sets out the approximate amounts and
sources of crude oil received by Atlantic Richfield’s Cherry Point
Refinery since 1972:
~
Total Crude Canedian Crude Tanker Crude Percentage
Receipte (bar- Receipts (ber- Receipte (bar- Received
Year rele per day) rels per day) rels per day) by Tanker
1972 84.800 74,400 10,400 12°,
1973 97,000 60,700 36,300 27":
1974 90,800 40,800 50,000 56",
1975 94,200 31,500 62,700 67°.
The crude oil received by tanker has originated primarily in the
Persian Gulf; the Canadian crude was received primarily through
the Canadian Transmountain Pipeline. The Canadian Minister of
Energy, Mines and Resourc<s has announced that his government
intends to end all oil exports to the United States by the early
‘One barrel of crude oil is equal to 42 U.S. gallons. There are approximately
7.2 barrels (or 302 gallons) of crude oil in De oe, Se as oe ee
to 2,240 pounds. One short ton is equal to 2,000 pounds.
46 Pre-Trial Order
1980's. If that occurs, Atlantic Richfield plans to supply by tanker
all crude oil to be refined ai Cherry Point.
17. Since Atlantic Richfield’s Cherry Point refinery
commenced operations, its docks have received th-ough 1975, 95
deliveries of crude oil in tankers with deadweight tonnages in
excess of 40,000 deadweight tons (“DWT”) and not more than
125,000 DWT. The breakdown of the receivings is as follows:
Year No. of Arrivals
1972 5
1973 21
1974 32
1975 37
95
In addition, it has received 10 deliveries of crude oil in tankers
of 40,000 DWT or less for same period as follows:
Year No. of Arrivals
1972 5
1973 2
1974 0
1975 0
10
A list of the tankers by date of arrival, name, size and flag
is set forth in Exhibit C.
18. The docking facilities at Atlantic Richfield’s Cherry Point
refinery are capable of docking, and before the challenged statute
did dock, tankers in excess of 125,000 DWT. Fifteen crude oil
tankers over this size have called at Cherry Point from the
commencement of refinery operations through the date H.B. 527
became effective. The annua! breakdown of such dockings is as
follows:
—
Pre-Trial Order 47
Year No. of Arrivals
1972 3
1973 4
1974 3
1975 5
15
At least ten of these tankers were fully loaded. (A list of the
tankers by date of arrival, name, size and flag is set forth in
Exhibit D.) None of the above tankers was a United States flag
vessel or owned by Seatrain.
19. There are five other refineries located adjacent to Puget
Sound and served by tankers subject to H.B. 527 (the location
of these refineries and Atlantic Richfield’s refinery is shown on
a map of the State of Washington annexed as Exhibit E).
A. Mobil Oil Company's refinery located near Ferndale,
Washington, has a processing capacity of 71,500 barrels per day.
Crude oil is supplied to it both by tanker and from Canada by
pipeline. The largest ship to transfer oil to the Mobil refinery from
its dock at Ferndale was 191,000 DWT. The largest fully loaded
tanker which has docked at Mobil's dock is 63,000 DWT. The
depth at dockside at the Mobil refinery is not greater than 45
feet. Mobil has publicly announced that it has plans under stud:
although no governmental approval has yet been sought or
received, to expand its docking facilities to accommodate fully
loaded tankers up to approximately 150,000 DWT.
B. Shell Oil Company's refinery located at Aracortes,
Washington has a processing capacity of 91,000 barrels per day.
Crude oil is supplied to it both by tanker and from Canada by
pipeline. The largest ship tc transfer oil to the Shell refinery from
its dock at Anacortes was 78,000 DWT. The largest fully loaded
tanker which has docked at Shell's dock is 64,500 DWT. The depth
at dockside at the Shell refinery is not greater than 45 feet. Shell
has publicly announced that it has plans under study, although
438 Pre-Trial Order
no governmental approval has yet been sought or received, to build
a new docking facility with greater dockside depth at its Anacortes
refinery to accommodate fully loaded tankers up to 200,000
DWT.
C. Texaco, Inc.'s refinery located at Anacortes, Washington
has a processing capacity of 78,000 barrels per day. Crude oil is
supplied to it both by tankers and from Canada by pipeline. The
largest ship to transfer oii to the Texaco refinery from its dock
at Anacortes was 98,500 DWT. The largest fully loaded tanker
which has docked at Texaco's dock is 78,000 DWT. The depth
at dockside at the Texaco refinery is not greater than 45 feet.
D. US. Oil & Refining Company's refinery located in
Tacoma, Washington has a processing capacity of 18,500 barrels
per day. Crude oil is supplied to it only by tanker. The largest
ship to transfer oil to the U.S. Oil refinery from its dock at Tacoma
was 103,000 DWT. The largest fully loaded tanker which has
docked at U.S. Oil's dock is 45,000 DWT. The depth at dockside
at the U.S. Oil refinery is not greater than 45 feet. U.S. Oil nas
under study, although no governmental approval has yet been
sought or received, plans to extend its crude oil receiving pipeline
from its present dock site in Blair Waterway, Tacoma, to the Port
of Tacoma berth on Commencement Bay so that it may berth
fully loaded tankers up to 125,000 DWT.
E. Sound Refining, Inc.'s refinery located at Tacoma,
Washington has a processing capacity of 4,500 barrels per day.
Crude oil is supplied to it only by tanker. The largest ship to
transfer oil to the Sound refinery from its dock at Tacoma was
37,500 DWT. The largest fully loaded tanker which has docked
at Sound's dock is 26,000 DWT. The depth at dockside at the
Sound refinery is not greater than 32 feet.
20. In 1974, production of petroleum products by Washington
refineries totaled approximately 300,000 barrels per day. Total
consumption of petroleum products in Washington was
approximately 189,000 barrels per day. Net exports of petroleum
products totaled approximately 111,000 barrels per day, of which
Pre-Trial Order 49
approximately 46 percent were transported by barge or tanker.
In December 1975, 93 percent of the tankers so employed were
smaller than 40,000 DWT. The average size of these product
tankers was 28,600 DWT.
21. The following table sets forth projections from 1977-1981
regarding production of crude oil from the Alaskan North Slope
area as reported by the Maritime Administration in June 1975.
Atlantic Richfield’s share of this production and the aggregate
share currently scheduled for delivery to Puget Sound refineries
are as follows:
(Barrels Per Day)
1977 1978 1981
Industry Total: 815,000 1,420,000 2,241,000
Puget Sound's Total
Share: 122,250 213,000 336,150
Atlantic Richfield's
Share: 149,000 260 000 448,000
It is currently anticipated that all the oil from Valdez, Alaska will
be transported by tanker to ports on the West Coart. Current
plans previde that 15 percent of all Alaskan oil will be transported
to refineries in the Puget Sound area, and the remainder
transported to San Francisco (40 percent) and Long Beach (45
percent). Of Atlantic Richfield’s share, approximately 96,000
barrels per day for 1977, 1978 and 1981, respectively, are slated
for the Cherry Point refinery.
29. The volume of oil to be moved from Alaska by tanker
in 1980 will be more than 101 million short tons per year; the
U.S. trade in crude oil by tanker between domestic ports in 1974
was 33 million short tons.
23. Four docking berths are under construction at the
southern terminus of the Trans-Alaska Pipeline at Valdez, Alaska,
which will accommodate fully loaded tankers up to 250,000 DWT.
The depth at dockside will be no less than 75 feet and the berths
50 Pre-Trial Order
are scheduled to be completed in the summer of 1977. The
Maritime Administration has estimated that approximately
one-third of the tankers which will participate in the Alaska trade
will be in excess of 125,000 DWT.
24. Atlantic Richfield intends to use the following vessels in
the Alaska-West Coast trade: Sinclair Texas (50,000 DWT);
Atlantic (Arco) Heritage (53,000 DWT); Arco Prudhoe Bay (70,000
DWT); Arco Sag River (70,000 DWT); Arco Anchorage (120,000
DWT); Arco Fairbanks (120,000 DWT); Arco Juneau (120,000
DWT); and two 150,000 DWT vessels not yet in service. Atlantic
Richfield has contracted with the National Steel and Shipbuilding
Company in San Diego, California to build the last two ships. (See
Paragraphs 34 and 35). The 150,000 DWT vessels will have a
55-foot draft.‘
25. Puget Sound is the only area on the West Coast of the
United States south of Alaska containing a developed port with
a controlling depth® sufficient to accommodate tankers with a fully
loaded draft in excess of 55 feet without lightering, i.e., without
unloading @ portion of the cargo before entry into port. The
Atlantic Richfield facility at Cherry Point is presently the only
docking facility in Puget Sound designed to accommodate such
tankers. There are presently, off the coast of California near Long
Beach, mono-buoys capable of accommodating tankers, one of
which can accommodate tankers with a draft of 56 feet. The
controlling depth at Long Beach Harbor is presently 55 feet.
Standard Oil Company of Ohio has publicly announced plans
under study, although no governmental approval has yet been
sought or received, to dredge at Long Beach to provide a
controlling depth sufficient to accommodate tankers with a draft
of more than 55 feet. In addition, two companies, Seadock, Inc.
and Louisiana Offshore Oil Port, Inc., have sought approval from
“Deadweight tonnage is the primary determinant of draft (i.e. the distance the
hull ~~ ;
sino eflect he deaf, nat” but © vemaa's dimensions (eg., length, width
‘Controlling depth is defined as the maximum draft vessel that can enter the
port at extreme low tide
. ——_ em
Pre-Trial Order a
the federal government to build deepwater ports in the Gulf of
Mexico capable of accommodating tankers in excess of 200,000
DWT.
26. The Northern Tier Pipeline Company has announced
plans to construct an oil transfer terminal at Port Angeles,
Washington capable of receiving tankers in excess of 125,000
DWT. The Port Angeles terminal would connect, via a submar're
pipeline of approximately 1.5 miles, with a pipeline to be
constructed around Puget Sound, east across the State of
Washington and to refineries in the Midwest. Approval to build
the terminal at Port Angeles has been sought, but not yet received,
from the Washington Department of Ecology. Other necessary
governmental approval, both for the terminal and the pipeline,
has not yet been sought or received. Plans call for completion of
the pipeline no earlier than June 1979 at an estimated cost of
no less than $1.5 billion. No financing plans have yet been
announced. The Northern Tier Pipeline Company is also
considering an alternative pipeline route to cross Puget Sound
under Admiralty Inlet.
The Northern Tier Pipeline Company is a venture consisting,
inter alia, of the Burlington Northern Railroad, the Michael J.
Curran Pipeline Company, and Butler & Associates.
In addition to transporting oil to the Midwest, the pipeline
would have the capacity to carry oil needed by Atlantic Richfield,
Shell, Mobil and Texaco at their Puget Sound refineries, both as
presently existing and as proposed to be expanded. Before these
refineries could connect to the pipeline, construction of an
additional pipeline of approximately 100 miles in length from the
southern termirus of the Transmountain Pipeline at Anacortes,
Washington, would be necessary. A right-of-way which might be
used for a connecting pipeline presently exists in the form of the
right-of-way owned by the Olympic Pipeline Company, which has
a product pipeline running from Anacortes, Washington, to
Portland, Oregon. Currently there are no plans for any such
connecting pipeline, nor is it certain that any such connecting
pipeline, if constructed, will obviate the necessity for continuing
o2 Pre-Trial Order
to supply the refineries by tanker which would unload at the
docking facilities at each refinery.
27. Atlantic Richfield has three other refineries in the United
States at Carson, California; Houston, Texas; and Philadelphia,
Pennsylvania. All of these are substantially supplied by tanker.
The refinery at Carson, California is supplied by tanker through
the Port of Long Beach.
28. The Port of Long Beach is capable of accommodating
fully laden tankers in excess of 125,000 DWT. From March 1972
through 1975, eighteen tankers in excess of 125,000 DWT have
served Atlantic Richfield’s Carson refinery through the Port of
Long Beach. At least six of these tankers were fully loaded. A
td . tankers by date, name, size and flag is contained in
xhibit F.
29. Atlantic Richfield has plans to modify the docking
facilities serving its Philadelphia refinery to accommodate tankers
of up to and including 150,000 DWT. These plans have received
the necessary governmental approval. Atlantic Richfield is also
planning a terminal at Bayport, Texas to accommodate tankers
of this size to serve its Houston refinery. The necessary
governmental approval has been sought but not yet received.
Vessels of 150,000 DWT must be lightered before entry at both
ports, both currently and after the planned modifications, because
the controlling channel depths are 40 feet.
30. Atlantic Richfield operates directly or indirectly eleven
sergoing U.S. flag tankers, as follows:
Arco Anchorage (120,000 DWT)
Arco Fairbanks (120,000 DWT)
Arco Juneau (120,000 DWT)
Arco Prudhoe Bay (70,000 DWT)
Arco Sag River (70,000 DWT)
Arco Heritage (53,000 DWT)
Sinclair Texas (50,000 DWT)
Atlantic Prestige (34,000 DWT)
Pre-Trial Order nt
Arco Endeavor (32,000 DWT)
Arco Enterprise (32,000 DWT)
Atlantic Trader (21,000 DWT)
31. Atlantic nichfield also operates, directly or indirectly,
three foreign flag tankers, as follows:
Arco Colombia (58,000 DWT)
Atlantic Challenger (51,000 DWT)
Arco Competitor (51,000 DWT)
32. Seatrain owns or charters twelve (12) oil tankers which
are available for or under charter to commercial shippers and
governments for varying periods. Seatrain’s current fleet includes
six (6) tankers of U.S. registry and six (6) tankers registered under
foreign flags. Four (4) of the vessels are prohibited from entering
Puget Sound under the size prohibition of H.B. 527. Six (6) of
Seatrain’s tankers are under 40,000 DWT and not subject to H.B.
527. The four tankers over 125,000 DWT are chartered, foreign
flag vessels. Seatrain does not believe it is economically feasible
to reduce the size of its vessels of more than 125,000 DWT to
comply with the provisions of H.B. 527. Seatrain has on occasion
used some of its tankers for the carriage of cargo other than
oil.
33. Mobil, Shell and Texaco, and each of them, both own and
charter tankers in excess of 40,000 DWT. Each of such companies
regularly uses such tankers to supply its Puget Sound refinery.
Mobil, Shell and Texaco, and each of them, also both own and
charter a substantial number of tankers in excess of 125,000 DWT,
although none of such tankers was used, prior to H.B. 527, to
supply such companies’ Puget Sound refineries.
34. Atlantic Richfield has contracted with two different
shipyards to build a total of five tankers. The National Steel and
Shipbuildjng Company (NASSCO) in San Diego, California has
contracted to build two tankers of 150,000 DWT each. These
tankers will be U.S. flag and will be used in service between
Valdez, Alaska and West Coast ports. These vessels are currently
54 Pre-Trial Order
scheduled for delivery in 1979 and 1980. All main propulsion
machinery has been ordered for the vessels, as has considerable
ancillary equipment. Steel fabrication is scheduled to begin in
December 1977 and August 1978. Mitsubishi Heavy Industries in
Japan has contracted to construct three tankers, two of which will
have a capacity of 151,000 DWT, the third a capacity of 120,000
DWT. These three tankers will be foreign flag and, although not
eligible for coastwise trade, will be used to deliver foreign crude
oil to Atlantic Richfield’s United States refineries. These vessels
are currently scheduled for delivery in 1977. Construction of the
main engines for the two 151,000 DWT tankers has commenced.
Steel fabrication has begun on one of these tankers and is expected
to begin in July 1976 on the other.
35. The cost of construction of the two 150,000 DWT Atlantic
Richfield tankers on order from NASSCO is approximately $80
million each, or an aggregate of approximately $160 million. The
aggregate construction cost of the three Japanese tankers is
approximately $90 million. The aggregate construction cost of the
five vessels is thus over $250 million.
36. Shell Oil Company has contracted with National Steel
and Shipbuilding Company in San Diego, California to build two
188,000 DWT tankers which Shell intends to use in the
Alaska-West Coast oil trade. These tankers are scheduled to be
delivered in late 1977 or early 1978. Steel for construction has
been ordered, but construction has not yet begun.
37. In 1970, Seatrain entered into a lease with a 20-year term,
under which it occupies and operates most of the shipbuilding
facilities of the Brooklyn Navy Yard in New York. Seatrain
decided to enter shipbuilding in anticipation of the completion
of the Trans-Alaska Pipeline, which was expected to require
vessels constructed in the United States for carriage of crude oil
from the terminus of the pipeline to West Coast ports. Seatrain
spent approximately $35 million to modernize and equip the
shipyard facility. More than 1,700 people are employed at the
shipyard, about 80 percent of whom are members of minority
racial groups. Seatrain’s operation of the shipyard has been
assisted by two federal agencies, the Economic Development
Pre-Trial Order ta)
Administration and the Maritime Administration. The four
225,000 DWT tankers which have been or are under construction
at the shipyard have heen built with construction-differential
subsidy. None of these vessels could be used under federal law
to transport vil from Valdez to Puget Sound unless some or all
of the subsidy is refunded.
38. Seatrain Shipbuilding Corp. presently has under
construction two (2) 225,000 DWT oil tankers, the T T
Stuyvesant and the T. T. Bay Ridge. Construction contracts for
these vessels were executed on June 30, 1972 and June 30, 1975,
and the vessels’ keels were laid and construction commenced on
October 26, 1973 and August 23, 1974, respectively. As of January
31, 1976, the vessels were approximately 90.6 percent and 449
percent completed and scheduled for completion at the end of
calendar 1976 and 1977, respectively. The vessels are being built
to meet all federal laws and standards, and international
conventions, none of which would prevent them from entering
Puget Sound. Both vessels will be prohibited from entering Puget
Sound by the size prohibition of Section 3(1) of H.B. 527. Seatrain
does not believe it is economically feasible at the present stage
of construction, and does not plan, to reduce the size of the vessels
to comply with the 125,000 DWT limit imposed by H.B. 527.
39. Seatrain presently has no sale or charter commitment for
either the Stuyvesant or Bay Ridge. Seatrain’s ability either to
sell the vessels upon completion or employ them profitably will
depend upon future economic factors, primary among these being
the demand for U.S. flag tankers for the carriage of oi! in the
US. foreign and domestic trades. The estimated cost of
construction for the Stuyvesant is $87.5 million and $89.2 million
for the Bay Ridge.
40. Seatrain has considered the utilization of the Stuyvesant
and the Bay Ridge for the carriage of oil while loaded to less than
maximum capacity, which would reduce the draft, or by
transferring oil to smaller vessels (lightering). Draft can be
reduced to 55 feet by light loading these vessels, and vessels of
that draft can presently be accommodated at Cherry Point. No
current economic analysis of such operation has been made.
56 Pre-Trial Order
41. During the last five years, Atlantic Richfield has had
delivered to it five new tankers. The following table sets forth the
dates upon which contracts for construction were executed,
Contract Fabrication Delivery
Tanker Executed Started Date
Arco Anchorage Oct. 1969 Oct. 1971 June 1973
(120,000 DWT)
Arco Juneau Oct. 1969 Nov. 1972 May 1974
(120,000 DWT)
Arco Fairbanks Oct. 1969 March 1973 Aug. 1974
(120,000 DWT)
Arco Prudhoe Bay Nov 1968 July 1970 Dec. 1971
(70,000 DWT)
Arco Sag River Nov. 1968 Nov. 1970 May 1972
(70,000 DWT)
42. At the present time, the following Atlantic Richfield
vessels are enrolled and licensed:*
Arcv Prudhoe Bay (70,000 DWT)
Arco Sag River (70,000 DWT)
Arco Heritage (53,000 DWT)
Sinclair Texas (50,000 DWT)
Atlantic Prestige (34,000 DWT)
Arco Endeavor (32,000 DWT)
Arco Enterprise (32,000 DWT)
Atlantic Trader (21,000 DWT)
43. When the Trans-Alaska Pipeline System begins
operation, most Atlantic Richfield vessels operating between
Valdez and West Coast ports will be enrolled and licensed.
44. The world’s petroleum consumption in 1973 was 2.76
billion tons. Of this, approximately 60 percent was transported
by tanker. World trade in petroleum shipped by tanker averaged
30 to 35 million barrels per day.
* Enrolled and licensed” refers to vessels engaged exclusively in domestic trade
See @ 135 infra. 7
Pre-Trial Order 57
45. Water transportation of petroleum and petroleum
products, almost all by tanker, represented over 40 percent of all
United States waterborne commerce in 1973 and 1974. Water
transportation of petroleum and petroleum products represented
25 percent of all waterborne commerce in Washington in 1973 and
1974.
46. Water transportation of petroleum and petroleum
products in Washington represented 2 percent of the total national
water transportation of petroleum and petroleum products in 1973
and 1974.
47. The United States now imports over 35 percent of its oil
requirements. More than 80 percent of the amounts imported are
brought into this country by tanker. In 1974, U.S. imports of
petroleum and petroleum products by tanker averaged 5.4 million
barrels per day.
48. In 1974, imports of petroleum and petroleum products to
Puget Sound by tanker averaged an estimated 129,000 barrels per
day.
49. The economy of the State of Washington and the
residents of Puget Sound are dependent on oil and the products
produced from oil. No crude oil is produced in Washington and
thus all crude oi! and all products refined or derived from oil and
consumed by Washington residents must either be imported or
manufactured in Washington from imported crude oil.
50. As a result of the Arab Oil Embargo, which began in
October of 1973 and continued to March, 1974, it has become a
national goal of high priority to reduce American reliance on
foreign petroleum supplies and attain domestic energy
self-sufficiency. Nevertheless, it is likely that the United States
will continue to import oil for the next decade. This oil, as well
as oil from Alaska’s North Slope, will be transported to the U.S.
primarily by tanker.
58 Pre-Trial Order
51. It was reported by the Mavitime Administration in
December 1974 that 94 percent of U.S. oi! imports were being
transported in foreign flag tankers.
52. As of December 1975, there were 727 tankers over 125,000
DWT in the world fleet, with total capacity of 167 million DWT,
constituting 59 percent of the total world capacity. There were
an additional 344 vessels over 125,000 DWT on order or under
construction, with total capacity of 88 million DWT. (That a vessel
is “on order or under construction” does not, of course, mean that
construction of the vessel will in fact be undertaken or completed,
nor does the existence of such tankers in the world fleet mean
that, absent H.B. 527, such vessels would be used in Puget Sound.)
The world tanker fleet is registered in approximately 55 countries
with Liberia accounting for 29 percent of the total tonnage in 1974.
European maritime nations registered nearly 50 percent of world
tanker tonnage in 1974 and the United States only 4 percent.
Eleven percent of the world tanker tonnage was of Japanese
registry.
53. As of December 1975, the world tanker fleet contained
over 100 million DWT in surplus capacity, up from 60 million
DWT in September 1975. Of that surplus capacity, 37.5 million
DWT was laid up and inactive.
54. From September 1974 through November 1975, 172
tankers on order were cancelled. In November 1975 orders for 14
new tankers were cancelled, 7 of which were to be in excess of
125,000 DWT. Of the 172 cancellations, 131 were to be in excess
Se ee one ONO Cee
| 55. As of November 1, 1975, there were 249 tankers in the
privately-owned U.S. flag tanker fleet, with total capacity of more
than 9 million tons, approximately 3.4 percent of the total world
capacity. Four U.S. flag tankers were over 125,000 DWT, as
follows:
Massachusetts 265,000 DWT
Brooklyn 225,000 DWT
Pre-Trial Order 59
Williamsburg 225,000 DWT
Mobil Arctic 129,000 DWT
Total Capacity 844,000 DWT
The four U.S. flag vessels over 125,000 DWT now in service
presently carry crude oil from foreign ports to United States ports
not located on Puget Sound. Atlantic Richfield Company does not
presently intend to use any of these four vessels. Mobil Oil
Company, however, intended prior to H.B. 527 to modify its dock
facility as indicated in paragraph 19A supra and use the Mobil
Arctic to deliver oil to its Ferndale refinery.
56. As of December 31, 1975, there were 54 U.S. flag tankers
on order or under construction, with a total capacity of
approximately 7.1 million DWT. Twenty-two (22) such ships, with
an aggregate capacity of more than 5 million DWT, were larger
than 125,000 DWT; 18 such ships, with an aggregate capacity of
1.6 million DWT, were between 40,000 DWT and 125,000 DWT;
and 14 such ships, with an aggregate capacity of 472,900 DWT,
were under 40,000 DWT.
57. The Merchant Marine Act of 1970, Pub. L. No. 91-469,
84 Stat. 1018, established a federal policy encouraging
construction of U.S. flag: vessels, including oil tankers, in United
States shipyards in order to develop an American fleet able to
compete in foreign trade. The announced goal of Congress was
the construction of 300 vessels by 1980. Pursuant to this program,
the federal government pays the difference in construction costs
between tankers constructed in American and foreign shipyards.
up to a maximum percentage (50‘, in 1970, now 35°: ). On
December 1, 1975, 38 vessels, including 22 tankers, 9 of which were
in excess of 125,000 DWT, were either on order or under
construction pursuant to approved construction-differential
contracts. The Maritime Administration reports that as of January
31, 1976, it has paid out more than $347.6 million dollars on
construction-differential subsidies for tankers under the Act.
Nearly $197 million of this amount has been paid for tankers in
excess of 125,000 DWT. For tankers still on order or under
60 Pre-Trial Order
construction, the Maritime Administration has committed another
$252.9 million in subsidy funds, $223.7 million of which is for
tankers in excess of 125,000 DWT.
58. The following tankers were on order or under construction
with the aid of the construction-differential subsidy as of
December 1, 1975:
DWT
(each
Builder No. vessel)
Bethlehem Steel Corp. 4 265.000
National Steel & Ship-
bldg. Co. 6 89,700
3 38,300
Newport News Shipbldg.
& Dry Dock Co. 3 390,770
Seatrain Shipbldg. Co. 2 225,000
Todd Shipyards Co. 4 35,000
Total 22
None of these vessels could be used under federal law to transport
oil from Valdez to Puget Sound unless some or all of said subsidy
is refunded. Each vessel could, however, deliver oil from foreign
ports to Puget Sound under federal law without refunding said
subsidy.
59. Nine tankers had been constructed and delivered under
the construction-differential subsidy program as of December 1,
1975, as follows:
DWT
(each
Builder No. vessel)
National Steel &
Shipbldg. Co. 3 38,300
3 87,000
Seatrain Shipbldg. Co. 2 225,000
Bethlehem Steel Corp. 1 265,000
Totai i)
Pre-Trial Order 61
None of these vessels could be used under federal law to transport
oil from Valdez to Puget Sound unless some or all of said subsidy
is refunded. Each vessel could, however, deliver oil from foreign
ports to Puget Sound under federal law without refunding said
subsidy.
60. The Merchant Marine Act of 1970 extends to tankers the
operating-differential subsidy program established under the
Merchant Marine Act of 1936 in 46 U.S.C. §§ 1171 et seg. This
program seeks to equalize the disparity in operating costs between
those of American ships and their foreign competitors. Only
U.S.-flag tankers engaged in the foreign commerce of the United
States qualify for the subsidy; the program does not cover vessels
in interstate trade.
61. Title XI of the Merchant Marine Act of 1936, 46 U.S.C.
§§ 1271-1280, as amended, authorizes the Secretary of Commerce
to guarantee the payment of principal and interest on obligations
made to finance the construction, reconstruction and recondition-
ing of vessels, including tankers, designed principally for research
or for commercial use in the domestic or foreign trade of the U.S.
Public Law No. 93-70, 87 Stat. 168, increased the limitation on
the amount of outstanding obligations which may be guaranteed
from $3 billion to $5 billion. As of June 30, 1975, $4.2 billion in
obligations were outstanding under the program. Of this amount
$1.1 billion involved tankers in operation ($418 million), on order
($198 million), or under construction ($414 million). On the same
date, applications were pending for $667.5 million in loan
guarantees for 13 tankers. Public Law No. 94-127, 89 Stat. 680
(1975), increases the limitation on the amount of outstanding
obligations which may be guaranteed from $5 billion to $8
billion.
62. Seatrain’s 7. T. Stuyvesant and the T T. Bay Ridge are
being constructed with the assistance of construction-differential
subsidies under the Merchant Marine Act. As of January 31, 1976,
$121 million has been expended on the construction of these
vessels, of which $37.5 million has been billed to the U.S.
Government for construction-differential subsidy. In addition,
Seatrain has received construction loan guarantees in excess of
Pre-Trial Order 62
$64 million under Title XI of the Merchant Marine Act. During
1975, Seatrain Shipbuilding Corp. received loan guarantees
totaling $40 million from the Economic Development Administra-
tion to complete construction of the two vessels. These guarantees
were made after analysis by the Maritime Administration of the
economic justification for further investment in the partially
constructed vessels. The Maritime Administration considered in
this analysis the employment of the Stuyvesant and Bay Ridge
in the carriage of crude oil in the Alaska-West Coast trade.
63. The Office of Technology Assessment of the United Sta es
Congress reports that U.S. shipyards have estimated that
construction of a new tanker with a double bottom underneath
all cargo tanks increases its construction costs by approximately
3 percent over a comparable tanker with a single bottom. The
Office of Technology Assessment has estimated that construction
of a new tanker with twin screws increases its cost by
approximately 8 percent over a comparable tanker with a single
screw.
64. Each of the tankers owned by Atlantic Richfield services
more than one of its refineries. In planning the transport of crude
oil to its refineries, Atlantic Richfield schedules tanker deliveries
approximately three months in advance. Between the time of this
scheduling and the arrival of the tanker, however, the refinery’s
needs may change for a variety of reasons, e.g, changes in demand
for product or product mix, labor or operating difficulties at the
refinery or vessel delays in loading or en route. In order to meet
these changed needs efficiently, Atlantic Richfield may and
frequently does change, after scheduling is completed and up to
the time of actual delivery, either the destination of the tanker
or the amount of crude oil to be off-loaded at a particular refinery.
Atlantic Richfield also makes such schedule changes with vessels
under charter except where the charter agreements do not
permit.
65. Oil companies, including Atlantic Richfield, commonly
engage in exchanges of crude oil and petroleum products with
other oil companies for mutual economic advantage. These
transactions, which occur on a worldwide basis, are of various
types and include exchanges involving shipments entering and
ah oe
Pre-Trial Order : Hs
leaving Puget Sound. Exchanges are undertaken, inter alia,
to:
a. Alleviate “spot” shortages and solve timing problems in the
arrival of crude shipments at a refinery;
b. Adjust the different grades and types of crude oil arriving
at a refinery so that the refinery may operate at maximum
efficiency; and
c. Effect transportation savings by assuring that shipments
of crude oil travel the shortest possible distance from the place
of production to the refinery.
_ 66. In most situations, the unit cost of transporting oil to
refineries by larger tankers is lower than such transport by smaller
tankers. For example, if a fully-loaded 75,000 DWT tanker is
compared with a fully-loaded 150,000 DWT tanker, both
constructed in the same shipyard, flying the same flag and having
the same degree of modern features and automation, the 150,000
DWT tanker will be cheaper to construct and operate on a per
barrel basis for the following reasons, inter alia:
a. The crew required for each tanker will be approximately
the same, i.e, approximately 28;
b. The percentage increase in horsepower required to operate
the larger vessel will be less than the percentage increase in
tonnage,
c. The cost of constructing and outfitting a 150,000 DWT
tanker will be less than the cost of building two 75,000 DWT
tankers; and
d. The cost of maintaining a 150,000 DWT tanker will be less
than the cost of maintaining two 75,000 DWT tankers.
67. The Maritime Administration's Office of Policy and Plans
has estimated that the cost of shipping a barrel of oil from the
64 Pre-Triai Order
Persian Gulf to the United States on a 50,000 DWT tanker is $2.00
to $3.00; on a 250,000 DWT tanker, the cost is $1.00 to $1.50.
The Oceanographic Commission of Washington has estimated that
the cost of shipping a barrel of oil from the Middle East to Cherry
Point on an 80,000 DWT tanker is approximately $1.65; on a
120,000 DWT tanker $1.40; on a 250,000 DWT tanker $1.28.
68. Atlantic Richfield has estimated that the cost of
transporting oi! from Valdez, Alaska, to Cherry Point on
comparably equipped tankers of 90,000 DWT, 120,000 DWT and
150,000 DWT is expected to be approximately $.47 per barrel, $.40
per barrel and $.%6 per barrel respectively. The Oceanographic
Commission of Washington has estimated that the cost of
transporting oil from Valdez, Alaska, to Cherry Point on
comparably equipped tankers of 60,000 DWT, 120,000 DWT, and
250,000 DWT is approximately $.376 per barrel, $.282 per barrel,
and $.259 per barrel respectively.
69. In the world charter markets it is currently cheaper on
a per-barrel basis to charter a 150,000 DWT tanker rather than
a 120,000 DWT tanker for the Persian Gulf-Cherry Point trade.
The present cost differential is approximately $.094 per
barrel.
70. The route usually taken by vessels traveling between the
Pacific Ocean and Cherry Point or other Northern Puget Sound
ports is to pass through the Strait of Juan de Fuca and into Puget
Sound, then to turn north and pass through Rosario Strait. The
route usually taken by vessels traveling between the Pacific Ocean
and Vancouver or other Canadian ports in British Columbia is
to pass through Haro Strait, rather than Rosario Strait. Both
routes require transit through U.S. waters. The vessels retrace
their paths on their return voyage to the Pacific Ocean. From the
point where the vessel crosses the line between Discovery Island
light and New Dungeness light to Cherry Point via Rosario Strait
is a distance of 45 nautical miles, as shown on the navigational
charts filed herewith as Exhibit G. While on this route, except
while passing through Rosario Strait, vessels are instructed to
proceed in separated traffic lanes pursuant to Coast Guard
wa EPPA... ———- =
a2 ae aes. -s
Pre-Trial Order 05
regulations described in paragraphs 126-127 infra which establish
a Vessel Traffic Control System (VTS) for Puget Sound. The
traffic lanes are each 1,000 yards wide and are separated by 500
yard wide separation zones. The Coast Guard prohibits the
passage of more than one 70,000 DWT vessel through Rosario
Strait in either direction at any given time. During periods of bad
weather, the size limitation is reduced to approximately 40,000
DWT. The minimum water depth is at least sixty feet at all points
along this route. Tankers bound for southern Puget Sound ports
such as Tacoma proceed through Admiralty Inlet ir traffic lanes
as shown on Exhibit G. The Puget Sound VTS includes radar
coverage from Seattle north to the southern extreme of the San
Juan Islands.
71. The portions of the Strait of Juan de Fuca, Rosario Strait,
Haro Strait, Puget Sound and adjacent navigable waters located
in the United States are navigable waters of the United States
and sustain foreign and interstate commerce. Likewise, said
portions are waters of the State of Washington.
72. The Canadian Coast Guard maintains a traffic control
system under the authority of the Canadian Ministry of Transport,
called the Vessel Traffic Management System, to enhance the
safety of vessel traffic movement in Canadian waters. This system
is voluntary and not all vessels comply. The Canadian Ministry
of Transport has established a Vessel Traffic Management Center
in West Vancouver, B.C. which administers the Vessel Traffic
Management System (V'TM) for the Vancouver traffic zone. The
Vancouver traffic zone includes the western coastal waters of
Canada east of Vancouver Island, including the Strait of Juan de
Fuca and portions of Queen Charlotte Sound. By agreement
between the Commendants in Vancouver and Seattle, the
Canadian Coast Guard and the United States Coast Guard have
established a system of information exchange to facilitate the
purposes of their traffic systems. Pursuant io this agreement, the
U.S. Puget Sound Vessel Traffic System (VTS) applies to traffic
in the Strait of Juan de Fuca between the Pacific Ocean and Race
Rocks, regardless of the international boundary line. This portion
of the VTS is also voluntary and between 20 percent and 5)
percent of all vessels comply. The Canadian VTM applies to Haro
66 Pre-Trial Order
Strait traffic, north and south-bound regardless of the
international boundary. Likewise, the Canadian VTM applies to
traffic in the Strait of Georgia south of the 49th parallel though
most of the designated traffic lane is in U.S. waters. When using
the VTS or VTM, Canadian-bound traffic utilizing the Rosario
Strait transfers from the U.S. VTS to the Canadian VTM when
abeam of Patos Island, though still in United States territorial
waters. The Canadian VTM includes radar coverage in Vancouver
Harbor.
73. Canadian oil refineries and distribution points are located
near Vancouver, B.C. at North Burnaby (Chevron Oil, Inc.), Port
Moody (Gulf Oil, Inc.), loco (Imperial Oil of Canada, Ltd.), and
Shelburn (Shell Oil, Inc.). These petroleum facilities are normally
reached from the Pacific Ocean through the Strait of Juan de Fuca
only by passage through Puget Sound as defined by H.B. 527.
Because petroleum refineries in British Columbia normally receive
crude oil by pipeline from Canadian oil fields, carriage of crude
oil by tanker to these facilities has been occasional and irregular.
The parties are not aware of any traffic to these facilities by
tankers in excess of 125,000 DWT and refined products from these
facilities primarily have been transported in tankers of less than
40,000 DWT. Prior to passage of H.B. 527, tankers bound for
Canadian ports through Haro Strait did not generally use pilots
licensed by the State of Washington.
74. Atlantic Richfield has used state-licensed pilots on all
tankers entering Puget Sound to the present time. When the
Trans-Alaska Pipeline System begins operation, and Atlantic
Richfield’s vessels, sailing under enrollment, begin to make
substantial numbers of voyages from Valdez to Cherry Point,
Atlantic Richfield plans to have its masters qualify as
federally-licensed pilots in Puget Sound. Atlantic Richfield has
already taken steps to encourage its masters to obtain such federal
licenses and one master of Atlantic Richfield’s vessels has recently
qualified as a federally-licensed pilot between Port Angeles and
Cherry Point.
75. No tanker presently afloat has all of the design features
necessary to satisfy the requirements of Section 3(2) of H.B.
527.
ie pa
ee ee
Pre-Trial Order 67
76. Neither Atlantic Richfield nor Seatrain presently has any
tankers, whether owned or under long-term charter, which have
(a) shaft horsepower in the ratio of one horsepower to each 2.5
DWT, or (b) twin screws, or (c) double bottoms underneath all
oil and liquid cargo spaces. Some, but not all, of Atlantic
Richfield’s and Seatrain's tankers are equipped with collision-
avoidance radar. Neither Atlantic Richfield nor Seatrain presently
has plans to retrofit its tankers with all of the above features
because such retrofit is not economically feasible under current
and anticipated market conditions. The Seatrain vessels in the
225,000 DWT class, currently under construction, do not have
requirements (a) through (c), above, but may include
collision-avoidance radar.
77. The cost and use of tugboats prior to the effective date
of H.B. 527 varied with their availability and location. Such tugs
were used normally only for the immediate approach to and for
docking and undocking from the Cherry Point and other oil
terminals in Puget Sound. Since no tanker owned by or available
to Atlantic Richfield has all of the features set forth in Section
3(2), it is necessary under H.B. 527 that tugboats now meet each
oil carrying tanker in excess of 40,000 DWT as it enters Puget
Sound from the Strait of Juan de Fuca and, if it is not fully
unloaded at Cherry Point, escort it back to the Strait. This
increased use of tugs increases the cost of tugboat service. The
amount of such increase varies with the location and extent of
usage of such tugs. The following table sets forth the tug fees paid
directly by Atlantic Richfield for tankers which have called at the
Cherry Point facility subsequent to the effective date of H.B. 527,
the amount of such fees attributable to docking services, and the
amount of such fees attributable to escort services required by
H.B. 527: Docking
a Escort
Date(s) Tanker Undocking Fee Total
9/18-9/19/75 Arco Fairbanks $ 5,270 $9,585 $15,855
9/19-9/21/75 Kongshay 5,550 7,525 13.075
10/20/75 Arco Prudhoe Bay 2,800 4.68) 11,480
10/24-10/26/75 Arco Anchorage 11,620 9,110 20,370
(delayed)
10/30-11/2/75 Arco Juneau 5,710 4,870 10,580
12/8-12/9/75 Clementina 6,030 3,925 9,955
12/20-12/23/75 Arco Fairbanks 6,670 8.780 15,450
68 Pre-Trial Order
78. Since H.B. 527 became effective in September 1975, the
average escort cost, the additional cost incurred as a result of the
tug escort provision of H.B. 527, for tankers calling at Cherry
Point as set forth in Paragraph 77 supra has been approximately
$7,500. If this added cost continues in accord with Atlantic
Richfield’s experience since the effective date of H.B. 527,
additional tug fees attributable to H.B. 527 will total
approximately $277,500 per year. ($7,500 (escort cost) x 37 (the
number of ships in excess of 40,000 DWT calling at Cherry Point
in 1975.)] Mathematically allocating the $7,500 average additional
cost for vessels of compliance with the tug escort provision of H.B.
527 to the barrels of oil carried on the vessels yields $.0116 per
barrel for a tanker of 90,000 DWT and $.0087 per barrel for a
tanker of 120,000 DWT.
79. To the present time, no reduction in the amount of oil
processed at Puget Sound refineries has occurred as a result of
the enactment of H.B. 527. All six oil companies operating
refineries in Puget Sound presently supply their Puget Sound
refineries using tankers of less than 125,000 DWT.
80. The total surface area of the State of Washington is
approximately 44,590,080 acres. (A map of Washington is attached
as Exhibit E.) Of this amount, approximately 1,984,000 acres or
4 percent are covered by marine waters. Puget Sound contains
approximately 1,280,000 acres of these marine waters measured
at mean high water.
81. Puget Sound is an estuary located ‘in northwest
Washington State as shown on Exhibit E. An estuary is defined
as a semi-enclosed, coastal body of water which has free
connection with the open sea and within which seawater is
measurably diluted with freshwater derived from land drainage.
Estua*ies are zones of ecological transition between fresh and
saltwater. There is water and light in the estuarine zone together
with dissolved nutrients derived from both land and sea. Estuaries
are generally productive habitats and serve as spawning grounds
and/or nursery areas for many marine species. These species
include animals and plants which live in the bottom, on the
Pre-Trial Order 6Y
bottom, in the water, on the water, and in marshes which border
the estuary. Open water, eelgrass and tideflats provide food and
shelter for migratory birds. In competition with fish and wildlife
in the use of estuaries are recreational boating, fishing, beach
walking, navigation, commerce and other uses.
82. The shoreline and bottom configuration of Puget Sound
is irregular and characterized by many channels, bays and inlets.
Numerous islands, marshes, tidal flats and narrow beaches are also
characteristic of the Sound. Rivers and streams flowing from the
Cascade and Olympic mountain ranges discharge into Puget
Sound. The distinctive topography of the Sound, including its
considerable depth, is primarily a result of glacial activity. This
combination of characteristics is shared by three other large
estuarine systems in the United States: Cook Inlet, Alaska; Prince
William Sound, Alaska; and the Alexander Archipelago of
southeast Alaska.
83. Puget Sound is inhabited by various forms of life. There
are more than 2,000 different species located in or on the waters
of Puget Sound or on immediate or adjacent uplands within one
mile of Puget Sound. A listing of some of the species is set forth
in Exhibit H, which also designates those species of commercial
or recreational value.
84. Puget Sound is subject to a variety of weather conditions.
Fog of varying intensity aid duration occurs in the Puget Sound
area, as set forth in Exhibit |, and on occasion substantially
impedes visibility. Tidal currents are common to many areas of
Puget Sound, as set forth in Exhibit LA. Wind conditions vary
with time, season and location as set forth in Exhibit J; at
Bellingham, for example, winds average approximately 5-10 miles
per hour, although occasionally exceeding 30 miles per hour in
winter. The hours of operation of fog horns in the Puget Sound
area are set forth in Exhibit K.
&5. Under the federal and state water pollution control laws,
80 percent of the waters of Puget Sound have been designated
as potentially Class AA (extraordinary) quality; 18 percent as
70 Pre-Trial Order
potentially Class A (excellent) quality; 2 percent as potentially
Class B (good); and 0.5 percent as potentially Class C (fair)
present Class AA quality standards; 70 percent of Class A waters
meet present Class A quality standards; 43 percent of Class B
waters meet present Class B standards; and 33 percent of Class
C waters meet present Class C standards. The definitions of these
classes, together with their specific application to Puget Sound
are set forth in Exhibit L.
86. The Washington Shoreline Management Act of 1971,
R.C.W. ch. 90.58, is a comprehensive land and water use planning
statute affecting substantially all salt and fresh water areas and
adjacent lands in Washington. Under the statute, local
“Shorelines of statewide significance” within the meaning of
streams. The term also includes all of beds of the Strait of
Juan de Fuca, the Pacific Ocean and Puget Sound lying seaward
ing tide. El
Pre-Trial Order 71
87. The bays, channels, salt water marshes, and inland waters
of Puget Sound provide habitats for many species of finfish and
shellfish. Fish packing and canning are industries in the Puget
Sound area. The total annual contribution of the Puget Sound
fishery to Washington State economic activity has been estimated
by the State of Washington to have been $170 million in 1973.
This figure includes indirect expenditures (e.g, for construction,
transportation) as well as direct expenditures (eg, for canning
and packing). This figure also includes those amounts set forth
below in paragraphs 88 and 89.
88. There are approximately 213 species of finfish inhabiting
Puget Sound. These species are set forth in Exhibit H. Of these,
approximately 81 are of commercial or recreational value.
Examples of these species are salmon, steelhead, herring, smelt,
lingeod. In 1973, the commercial catch of finfish in Puget Sound
was valued by the State of Washington at approximately $36.3
million. In 1973 the sports catch of finfish in Puget Sound was
valued by the State of Washington at approximately $10.4 million.
Finfish habitat, commercial finfishing areas, and sports finfishing
areas are set forth in Exhibit M.
89. There are 327 species of shellfish and other marine
invertebrates inhabiting Puget Sound. These species are set forth
in Exhibit H. Of these, approximately 46 are of commercial or
recreational value. Examples of these species are Dungeness crab,
Olympia oyster, Pacific oyster, Manila clam, geoduck, octopus, and
butter clam. The commercial shellfish catch in Puget Sound was
valued by the State of Washington at approximately $3.1 million
in 1973. The sports shellfish catch was valued by the State of
Washington at approximately $450,000 in 1973. Shellfish habitats,
commercial shellfishery areas and sports shellfishery areas of
Puget Sound are set forth in Exhibit M.
72 Pre-Trial Order
90. In 1975 the Washington State Department of Fisheries
issued eight permits for salmon rearing in Puget Sound. In the
same year the Department issued 264 licenses ($15 each) for
commercial clam and oyster farms, most of which were for Puget
Sound farms. Washington aquaculture corporations employed in
1975 an estimated 1250-1500 people on Puget Sound.
Approximately 5 miles south of Cherry Point is Lummi Bay, the
site of the Lummi Indian Tribe aquaculture program, which is
primarily concerned with the propagation and sale of silver
salmon, King salmon, steelhead, trout, and oysters. The federal
government has expended a total of $3.4 million on behalf of the
aquaculture program of the tribe. The operating expense of the
project in 1974 was approximately $1 million.
91. Puget Sound is inhabited by various species of marine
mammals, including river otter, harbor seal, northern sea lion,
harbor porpoise, killer whale and pilot whale as set forth in Exhibit
H.
92. There are approximately 127 species of birds which
inhabit, including those which migrate or winter in, the coastal
areas of Puget Sound. These species are listed in Exhibit H. Of
these, approximately 21 are of recreational importance to hunters.
Examples of these species are snow goose, mallard, widgeon,
canvas back, scaup, and goldeneye. Waterfow! are hunted in and
near Puget Sound. In 1973 the State of Washington estimated the
value of the sports kill of ducks and geese in and near Puget Sound
was approximately $1.1 million. Puget Sound is a wintering area
for waterfowl from Alaska, western Canada and eastern Russia,
and for other birds.
93. It is unknown how many, beyond a de minimis number,
or to what extent, beyond a de minimis amount, finfish, shellfish,
marine mammals or birds in and around Puget Sound would be
affected adversely by an oil spill. Any such effect would depend
upon variables such as the a amount and type of oil spilled, the
location of the spill, the success of efforts to contain or clean up
the oil and the prevailing weather and water conditions at the
time and thereafter. The possible effects of an oil spill are
discussed in paragraph 108 infra.
at’ wee settle
Pre-Trial Order 73
94. The beds of Puget Sound (that area below extreme low
tide), the tidelands of Puget Sound (that area between extreme
low tide and the line of vegetation or mean high tide) and the
waterfront lands adjacent thereto (excluding industrial,
commercial and residential improvements of any type) have a
value which is extremely difficult to quantify, but which has been
estimated by the State of Washington to be in excess of $2
billion.
95. The waters of Puget Sound support various recreational
activities such as boating, swimming, water skiing and skin diving.
The U.S. Army Corps of Engineers and Bureau of Outdoor
Recreation estimated in 1968 that more than 30 percent of the
residents of the 12 counties adjacent to Puget Sound engaged in
some form of recreational boating. The State of Washington has
estimated that more than $125.4 million were spent on boating
activities in the Puget Sound area in 1972. (This figure includes
purchases of boats, engines, trailers, accessories, docking and
fuel.)
96. Nearly all of the beds of Puget Sound are owned by the
State of Washington. Of the 2,095 miles of tideland frontage of
Puget Sound, approximately 43 percent are owned by the State
of Washington.
97. The population of the State of Washington was
approximately 3,448,100 in the year 1974. Approximately 65
percent (or 2,241,300) of the residents of the State of Washington
reside in the 12 counties which border Puget Sound. Of these,
approximately 1,794,000 reside in the Everett-Seattle-Tacoma
metropolitan area.
98. Many portions of Puget Sound are beautiful, ce.,
aesthetically pleasing to the human eye. Although not quantifiable
in dollar terms, it has obvious aesthetic values.
99. It is unknown to what extent, beyond a de minimis
amount, beds, tidelands, waterfront uplands or other real or
personal property would be affected adversely by an oil spill. Any
74 Pre-Trial Order
such effort would depend upon variables such as the amount and
type of oil spilled, the location of the spill, the success of efforts
to contain or clean up the oil and the prevailing weather and water
conditions at the time and thereafter. The possible effects of an
oil spill are discussed in paragraph 108 infra.
100. Puget Sound is the site of a number of fish and wildlife
preserves and refuges. The federal government operates 13 wildlife
preserves or refuges in or bordering on Puget Sound. These 13
preserves comprise 2,300 acres. The State of Washington operates
two oyster preserves on Puget Sound, comprising 12,000 acres. The
Nature Conservancy, a private wildlife conservancy organization,
operates four bird refuges or preserves in the Puget Sound area;
these refuges comprise 384 acres. One of these, Foulweather Bluff,
is located on Hood Canal. The other three, Waldron Island,
Deadman Island and Goose Island, are located in the San Juan
Islands.
101. There are presently 158 federal, state, county and local
public parks or recreation sites located on or abutting Puget
Sound. A list of these parks and state park visitations are found
in Exhibit N. Privately operated parks and recreation sites are
also found on Puget Sound.
102. The State of Washington estimates that in 1973
approximately 4.5 million person nights and $92.1 million were
spent by tourists in the 12 counties adjacent to Puget Sound. It
is difficult to ascertain the purpose of such visits or the activities
in which such tourists engage, but Puget Sound attracts and is
used by many of these tourists.
103. The Washington State Ferry System operates daily 11
major ferry routes to and from points on Puget Sound. Besides
being used as a means of transportation by residents, the state
ferry system serves as an attraction and transportation for tourists
in Puget Sound.
104. Puget Sound functions as an area for the conduct of
scientific research and educational programs. The University of
Washington operates a marine station at Friday Harbor, on San
Pre-Trial Order 7h
Juan island, at which the University conducts research and
educational programs. More than $1 million is spent annually on
the University’s Institute for Marine Studies at Friday Harbor.
Western Washington State College (Bellingham) operates a
marine station at Shannon Point, near Anacortes. Walla Walla
College maintains a similar facility at Deception Pass, near
Anacortes. Other institutions of higher education in Washington,
including the University of Puget Sound (Tacoma) and Evergreen
State College (Olympia), also conduct scientific research and
educational programs on or pertaining to Puget Sound. The State
of Washington, through its Department of Ecology, Department
of Fisheries, Department of Game and Department of Natural
Resources, among other state departments and agencies, conducts
research on Puget Sound and operates a number of marine
stations. Research is also conducted by local and municipal
agencies and private parties. Research is also conducted on Puget
Sound by the National Oceanographic and Atmospheric
Administration (NOAA), whose Northwest Regional Headquarters
is located in Seattle.
105. Puget Sound is a water resource subject to many
competing uses, as set forth in paragraphs 83 through 104 and
118, some of which adversely affect the availability and
desirability of this water resource for other such uses.
106. In gross, the waters, beds and tidelands of Puget Sound
are more extensive and eConomically significant than other
non-Pacific Ocean marine water bodies in the State of
Washington.
107. The Oceanographic Commission of Washington reported
in January 1975 on three sites !ocated west of Puget Sound within
the State of Washington (and therefore not subject to the
provisions of H.B. 527) which it considered reasonably developable
as port sites capable of receiving tankers in excess of 125,000
DWT. Facilities to receive tankers in excess of 125,000 DWT do
not presently exist at any of the reported sites. Except as set forth
in Paragraph 26 supra, no governmental approval has either been
sought or received for construction of such facilities.
76 Pre-Trial Order
108a. Oil spilled into Puget Sound has a significant potential
for causing injury or death to biota which live in, on and adjacent
to the waters of Puget Sound, such as waterfowl, marine mammals
and other marine organisms. It also has a significant potential for
damaging real and personal property, both publicly and privately
owned, which underlies, is within, or borders upon the waters of
Puget Scund. It may also restrict the availability of the waters
and beaches of Puget Sound for public use.
b. The greater the amount of oil spilled into the waters of
Puget Sound the greater the potential for causing injury, death
or damage as stated in paragraph 108(a) supra.
c. The potential for injury, death or damage as described in
paragraph 108(a) supra arising from oil spilled into the waters
of Puget Sound varies based upon a number of factors including,
among others, the:
Amount of oil spilled
Location of the oil spill
Type of oil spilled
Temperature of the water
Temperature of the air
Wind and other weather conditions
Water currents
Tidal level
Season of the year
10. Capability of humans to clean up oil
11. Response time |
12. Coordination and cooperation between various clean-up
participants — private and public.
109. The National Academy of Sciences in its recent report
entitled “Petroleum in the Marine Environment” concluded with
respect to the effects of oil spills, as follows:
SPX PFeer>
“A review of the 'terature (Table 4-1) shows that a -~y ~
number of documented studies exist that
biological, chemical, and physical acute and long-term effects
of oil in the marine environment. Because most studies have
been made in estuaries, little data are available concerning
effects on the open ocean. However, certain generalizations
0 bee 2 RE Ria
Pre-Trial Order 77
> various aspects of oil in the marine environment can
“Whereas the concentration of petroleum hydrocarbons
dissolved in water is generally low (10 ppb) ( and
coastal shelf, concentration in sediments might be as high as
a Farrington and Quinn, 1973; —— and Sass,
“In general, where da was severe, the oil spill was
massive relative to the size of the affected area, and the spill
was confined naturally or artificially to a limited area of
relatively shallow water for a period of several days.
Deleterious effects may have been increased by storms or
heavy surf water mixed with oil and sediments in the affected
area. These effects were also generally localized, ranging from
he ht J -
environmental circumstances; however, for a given quantity
of oil, the more localized the distribution of the spill, the
greater is the mortality.
“Different oils were found to have different effects, with
toxicity being most pronounced for refined distillates and
ysical smothering most severe with viscous crude oils or
nker C crude oil. Refined No. 2 fuel oil was among the
oils having the most toxic effects. Variations in physical
environment in coastal areas were also considered in
determining effects; i.e.. a polluted area might experience
sudden unpredictable stresses from synergistic interac-
tions between variable environmental factors and the oil.
“The amount of oil and the type of organism afflicted
was also found to be important. For example, a single coating
of fresh or weathered crude oil or its derivatives on certain
bird species or on seeds of plants caused death, whereas marsh
plants were killed only after several coatings. In general,
emergent plant life was less likely to be affected than marine
biota, unless the spill occu in tropical waters where
es were present. Very low concentrations of the
solu fractions of kerosene interfered with searching
behavior of a marine snail. Crude oil on the shells of oysters
had no effects. The photosynthesis of marine phytoplankton
was reported to be reduced by 100 of No. 2 fuel oil.
Mortality of some organ'sms has been found in all major spills
for which studies have been published, with the pelagic diving
78
leases of oil were confined to inshore areas where natura!
seas enseusenn Gone chumaent, Sanestael tended
reprod ;
a characteristic increases the vulnerability of a _
in time, they would be chronic
animals might never recover from
‘ifspring of the residen nit this
is fi the « ing of ident . this
scpetation were completely destroyed by pollution,
recolonization by chance immigration from a distant estuary
would probably take a very long time. The resident population
te ae ms ll le. MT tl, tt
~ eek | ee oe
79
Pre-Trial Order
of estuaries provides shelter and food for the young stages
KK many SEED important marine organisms (shrimp,
, etc.).
“Partly because of their isolation, the ical
communities of coastal marshes and estuaries are particularly
vulnerable to the activities associated ses
exploration and production. The dredging to i rigs and
pelines may severely alter an estuary, and changes in the
ydrology that bri about a greater incursion of higher
salinity water may have severe effects on the aquatic life
attuned to 2. given amount — an tag example, the
increase in salinity may greatly decrease yield —
acre. ie Loulslans ths cverail vield of oysters and shrimp
not changed much, but dredging, channelization, and
other activities have so altered the marshes that the oyster
industry has been forced to move into less favorable habitats,
with a consequent decline in the yield per oe since
1945. At the same time, the species composition of the shrimp
catch has changed: The white shrimp ined from 96 to 50
percent of the catch, while brown shrimp increased to about
50 percent. Such changes in shrimp species are often
associated with changes in the salinity of the water.
“There is very little data on the effect of oil on pelagic
species. Without more research, it is clearly premature to
conclude anything about the effects of oil on the open
ocean.
“Conclusions regarding the effects of oil in the marine
environment on human health are based on limited
information. From our interpretation of this information,
modest concern rather than alarm appears to be justified.
Although it is known that petroleum contains small amounts
of carcinogens and possibly small amounts of other harmful
materials, the amounts of carcinogens known to be in
petroleum that could be ingested by eating marine organisms
is estimated to be no greater than that acquired from eati
any other foods. Nonetheless, to reduce potentially harmfu
ects to man, all sources of carcinogens, including the large
source from terrestrial activities, should be investigated and,
if possible, eliminated.
“The field of carcinogens and man's exposure to them
needs more research. As part of this research, more studies
should be performed to determine how these materials enter
the ocean and, subsequently, man. Studies to detect whether
there are other materials in petroleum in small quantities,
such as mutagens or teratogens, are also needed because such
enormous amounts of petroleum are used ard handled by
man. At present, the admittedly very inadequate available
80 Pre-Trial Order
evidence does not make it appear that dangers of this sort
from petroleum in the sea are nearly as great as other
exposures to man of carcinogenic and toxic materials.
ss ies in Puget
10. Known tanker collisions and other casualties in ge
Sound during the period 194! to 1973 are set forth in Exhibit
0.
111. Known oil spills in Puget Sound since 1971 are set forth
in Exhibit P.
112. Although tankers of the same deadweight tonnage -_
substantially in dimensions and operating characteristics,
following table sets forth designs used by the United States at
the 1973 International Conference on Marine Pollution:
Deadweight (DWT) 21,000 75,000 120,000 190,000 250,000
Displacement 26,700 90,700 145,300 220,500 286,600
Length 528° 763° 850) 1,000° 1,085
Breadth 17 125 138° 155° 170’
Depth 40 54 68 82) R4
Draft a1 4 52’ 61 65
oe 7,200 19,000 26,000 30,000 32,000
te
es ——— 18 14 13 13 18
Volume of Single
te 1,800m? 7,500m? 14,000m? 17,000m’ 30,000°
Volume of Single
toe _ 900m? 4,700m*? = 8,700m?)—10,500m* = 15,000m*
Horsepower to
Ratio 0.27 0.21 0.18 0.135 0.11
16 Knots 6000 ~=—s«10,500 13,000 «617900 «=: 20,000"
yy Knots _— 1,500 2,500 3,000 3,600 4,000
®Astern horsepower (maximum) ranges 30°. to 40% of the maximum ahead
: 3 barrels.
*One cubic meter equals approximately 6.
reported here as two accidents.
eee eee
8] Pre-Trial Order
113. The amount of oil discharged as a result of a tanker
accident which results in a spill may vary widely, e.g., from tens
or hundreds of gallons to thousands of tons. In the year
immediately preceding enactment of H.B. 527 in May 1975, three
tanker polluting incidents of major proportion occurred
worldwide: in August, 1974, the 206,000 DWT Metula ran aground
in the Strait of Magellan, resulting in a loss of approximately
50,000 tons of oil; in January, 1975, the 237,000 DWT Showa Maru
struck a reef in the Strait of Malacca, spilling approximately 4,500
tons of oil; and in January, 1975, the 88,000 DWT Jakob Maersk
ran aground off Oporto, Portugal, and lost its entire cargo, either
by spillage into the ocean or fire.
114. The following table summarizes tanker accidents” and
resulting spills involving all tankers in excess of 3,000 DWT, both
worldwide and within the United States, for the past five years.
The U.S. Coast Guard reports that tanker accidents contribute
200,000 tons per year of oil (petroleum in any form) input to the
oceans worldwide. The Coast Guard also reports that tanker
accidents within 50 miles of the U.S. coast have been estimated
to contribute spillage of over 12,000 tons per year during the past
five years.
WORLD WIDE ACCIDENTS
1969-73
All Tankers Tankers 40,000 Tankers Greater
Greater Than To 120,000 Than 120,000
3,000 DWT DWT DWT _
Total number
of accidents: 3,183 1,341 161
Total number
of accidents
causing pollu
tion, 452 164 29
Total oil
spilled in
these accidents
(tons): 951,317 404,992 158,403
Pre-Trial Order 42
Accidents in U.S. Waters within
50 Miles of Shore
1969-73
Total number
of accidents: 1,106 N.A. N.A.
Total number
of accidents
causing
pollution: 91 N.A. N.A.
Total oil
spilled in
these accidents
(tons): 63,147 N.A. N.A.
The U.S. Coast Guard studies of worldwide tanker accidents
for 1969-73 show little change in annual averages. Historically, a
few major accidents each year have been the principal —
to oil outflow.
115. Oil enters the marine environment from many different
sources. Although the rate at which crude petroleum and its
by-products are actually entering the ocean is impossible to
determine with complete accuracy, the following table shows major
sources and estimated amounts of petroleum hydrocarbons
entering the world’s oceans annually:
Best Estimate
Source (Metric Tons Per Year)
Natural seeps 600,006
Offshore production 80,000
Transportation:
LOT" tankers 310,000
Non-LOT tankers 770,000
Drydocking 250,000
Terminal operations 3,000
‘LOT (Load on Top) refers to a method of ballasting and tank washing whereby
vily water left in tanks is not pumped directly overboard, but instead is diverted
to slop tanks where it is held while the oil and water are separated by gravity.
The water is pumped overboard, artes Go 8 & Ge PS Sree
ee a tn a alc
pee ee ee ee ee
= ee
~ om
Pre-Trial Order a
Tanker accidents 200,000
Nontanker accidents 100,000
Coastal refineries 200,000
Atmosphere 600,000
Coastal municipal waste 300,000
Coastal nonrefining,
industrial wastes 300,000
Urban runoff 200,000
River runoff 1,600,000
Total 6,113,000
116. There are some private and public cleanup materials and
equipment in or accessible to the Puget Sound area in the event
of an oil spill.
117. The success and the cost of oil spill cleanup efforts
depends on a number of variables as referred to in paragraph
108(c) supra. The average cost per gallon for oil spill cleanup
operations in Puget Sound has been estimated by the Washington
Department of Ecology, as follows:
Size Average Cleanup Number of Spills
of Spill Cost From Which
a (Gallons) Per Gallon Average is Obtained
0O— 100 $19.36 6
100— 1000 5.26 a
L000. — 10000 3.67 5
84 Pre-Trial Order
Sound. The Washington
excess of | os oh @ toaduin
of oil spillage compared to TEER CROVEERENS CF
amount of oil by a larger number of smaller tankers in Puget
Sound.
120. Experts differ and there is good faith dispute as to
whether use of a tugboat escort with aggregate shaft horsepower
equal to 5 percent of the DWT of the tanker reduces the likelihood
of spills in Puget Sound.
121. Experts differ and there is good faith dispute as to the
efficacy in preventing oil spills of (a) minimum shaft horsepower
of one h.p. for each 2'» DWT; (b) twin screws; (c) double bottoms
underneath all oil and liquid cargo spaces; (d) two radars, one of
which must be collision-avoidance radar.
a |
SS ee eee
Pre-Trial Order a5
ill. NONEXCLUSIVE LIST OF STATUTES,
REGULATIONS AND INTERNATIONAL
AGREEMENTS
FEDERAL STATUTES AND REGULATIONS
122. The primary federal statute on which Plaintiffs base
their preemption contentions is the Ports and Waterways Safety
Act of 1972, Pub. L. No. 92-340, 86 Stat. 424 (July 10, 1972)
(“PWSA”), codified at 33 U.S.C. §§ 1221 et seg. and 46 U.S.C.
§ 39la. A true copy of the Act is annexed to the complaint as
Appendix II and filed herewith as Exhibit Q.
123. The Secretary of Transportation had delegated his
rulemaking authority under the PWSA to the Commandant of the
Coast Guard. 49 C.F.R. § 1.46(m)(4) (1975).
124. In the exercise of its authority under Title I of the
PWSA, the Coast Guard has promulgated certain regulations
governing the powers of the Captains of Port and District
Commanders. 40 Fed. Reg. 6653 (Feb. 13, 1975), 33 C.F.R. Part
160. A true copy is filed herewith as Exhibit R.
125. In the exercise of its authority under Title I of the
PWSA, the Coast Guard announced in an advance notice of
proposed rulemaking, that it has under consideration additional
proposed regulations. 39 Fed. Reg. 24157 (June 28, 1974). A true
copy is filed herewith as Exhibit S. To date, the text of such
proposed regulations has not been published.
126. In the exercise of its authority under Title | of the
PWSA, the Coast Guard has promulgated regulations establishing
a vessel traffic control system in Puget Sound. 39 Fed. Reg. 25430
(July 10, 1974), 33 C.F.R. Part 161, Subpart B. A true copy is
filed herewith as Exhibit T.
127. In connection with such vessel traffic system, the Coast
Guard has promulgated an operating manual dated September
1974. A true copy is filed herewith as Exhibit U.
86 Pre-Trial Order
128. In the exercise of its authority under Titie II of the
PWSA, the Coast Guard has promulgated certain regulations for
protection of the marine environment with respect to design,
i t and operating requirements for tankers in interstate
trade:
(a) 40 Fed. Reg. 48280 (October 14, 1975), 33 C.F.R. Part 157,
a true copy of which is filed herewith as Exhibit V; and
(b) 41 Fed. Reg. 1479 (January 8, 1976), amending 33 C.F.R.
Part 157, a true copy of which is filed herewith as Exhibit
Ww.
129. The Coast Guard has published a Final Environmental
Impact Statement dated August 15, 1975, with respect to such
regulations. A true copy is filed herewith as Exhibit X. This
document is offered for the purpose of showing the steps taken
and the matters considered by the Coast Guard in the exercise
of its authority under the PWSA and pursuant to the
requirements of the National Environmental Policy Act ~f 969,
and not for the truth of the substantive conclusions stated
therein.
130. Section 7(C) of Title Il of the PWSA directs that
regulations for protection of the marine environment with respect
to design, equipment, and operating requirements for tankers
engaged in foreign commerce be effective not later than January
. oe Ee Cus Cae Se eee © on one
promulgate regulations for U.S. flag vessels in oreign trade
identical to those for vessels in interstate trade. 40 Fed. Reg. 48280
(October 14, 1975). To date, the Coast Guard has neither formally
proposed nor promulgated regulations to implement this
131. On January 21, 1976, Governor Evans wrote a letter to
President Gerald R. Ford requesting that the President direct the
Coast Guard and Maritime Administration to ng Ape
regulatory powers and require that all U.S. tankers wit
double bottoms, inert gas systems, segregated ballast systems,
collision avoidance radar, Loran-C systems and any other safety
devices readily available to the industry. In addition, he suggested
that any tanker designed for use where tug assistance is
unavailable should be equipped with bow thrusters. A true copy
of the letter is filed herewith as Exhibit Y.
131A. On March 2, 1976, Governor Evans submitted written
testimony to the U.S. Senate Committee on Commerce. A true
copy of this testimony is filed herewith as a part of Exhibit Y.
This document is offered for the purpose of showing the position
taken by Governor Evans and not for the truth of the substantive
conclusions stated therein. Other witnesses at such hearings,
including the Coast Guard, took positions in particular respects
different from those espoused by Governor Evans.
132. Pursuant to the provisions of Title 46, Chapter 14 of the
United States Code, 46 U.S.C. §§ 361-445, the Coast Guard is
responsible for inspecting all “steam vessels”, including tankers,
to assure that they comply with applicable federal regulations.
Regulations promulgated by the Coast Guard relating to vessel
design, equipment, and inspection are codified generally in Title
46 of the Code of Federal Regulations.
133. Pursuant to the Tank Vessel Act, 49 Stat. 1889, 46 U.S.C.
§ 391a, as amended by Title II of the PWSA, the Coast Guard
is responsible for inspecting tankers to assure that they comply
with all federal reguiations for vessel safety and protection of the
marine environment, and issuing complying tankers a certificate
of inspection, upon which must be endorsed a permit showing the
kinds of cargo the tanker is authorized to transport. Regulations
promulgated by the Coast Guard relating to tanker design,
equipment and inspection are set out in Subchapter D of Title
46 of the Code of Federal Regulations. The Coast Guard recently
promulgated amendments to such regulations relating to
structural fire protection and gas inerting system requirements,
41 Fed. Reg. 3838 (January 25, 1976), 46 C.F.R. Parts 30, 32, 34,
a true copy of which is filed herewith as Exhibit Z.
48 Pre-Trial Order
134. Several bills to amend the Tank Vessel Act to require
particular design features have been introduced in the current
session of Congress, including the following:
. = hich would require segregated ballast tanks
and aH, A on all tankers over 20,000 DWT carrying
oil to United States ports situated on internal waters or
straits;
b. H.R. 6091 which would require segregated ballast
tanks, double bottoms, and if necessary, double sides on all
tankers over 20,000 DWT;
_ HR. 569 which would specify detailed tanker design
and a. t standards, including segregated ballast tanks,
double toms, additional horsepower, multiple screws,
multiple rudders, and bow and stern thrusters.
A true copy of each of the bills is filed herewith as Exhibit
AA.
135. Vessels of the United States are vessels documented
under the laws of the United States. Documented vessels are those
registered, enrolled and licensed, or licensed by the US. Coast
Guard. 46 C.F.R. §§ 66.03-7, -9. “Enrolled and licensed vessels
are United States flag vessels in excess of 20 tons engaged
exclusively in domestic trade and authorized to engage in a
particular trade. “Registered vessels” are United States flag
vessels entitled to engage in international trade, though such
vessels may on occasion also engage in domestic trade. Licensed
vessels” are United States flag vessels authorized to engage in a
particular domestic trade.
United States vessels must, with some exceptions, be
om in American shipyards, owned by United States
citizens or corporations, and served by an American crew. Only
American built United States flag vessels may engage in the
coastwise (interstate) trade.
137. Enrolled vessels must obtain a federal license in the form
prescribed by 46 U.S.C. § 263.
a
Pre-Trial Order 89
138. Under 46 U.S.C. § 264 a registered U.S. flag vessel may
be enrolled and licensed upon surrender of its registry.
139. 46 U.S.C. § 251, a true copy of which is filed herewith
as Exhibit BB, grants to enrolled and licensed or licensed vessels
the right to engage in domestic trade.
140. 46 U.S.C. § 221, a true copy of which is filed herewith
as Exhibit CC, grants to registered vessels “the benefits and
privileges appertaining to * * * vessels fof the United
States]”’.
141. 46 U.S.C. § 364, a true copy of which is filed herewith
as Exhibit DD, provides that enrolled vessels shail be under the
control and direction of pilots licensed by the Coast Guard when
operating within U.S. Territorial waters.
142. 46 U.S.C. § 215, a true copy of which is filed herewith
as Exhibit EE, provides that a state may require state licensed
pilots on registered vessels, but may not require such pilots on
enrolled vessels.
143. Other federal statutes and regulations relating to vessel
design, construction and required equipr.ent; vessel safety; and
control of tanker-related oil pollution include the following:
a. The Oil Pollution Act of 1961, as amended, 33 U.S.C.
§§ 1001 et seq., implements the International Convention for
the Prevention of the Pollution of the Sea by Oil, 1954, as
amended in 1962, by establishing, inter alia, certain
restrictions on the discharge of oil. ulations pursuant to
the Oil Pollution Act are found in 33 C.F.R. Part 151.
b. The Oil Pollution Act Amendments of 1973, Pub. L.
No. 93-119, 87 Stat. 424, amended the Oil Pollution Act of
1961, to add 33 U.S.C. § 1004a. Section 1004a requires that
all tankers built after specified dates must comply with the
standards of the 1971 Amendments to the International
Convention for the Prevention of the Pollution of the Sea by
Oil, 1954, with respect to cargo tank arrangement and size.
These standards are set out in Coast Guard interpretative
Pre-Trial Order 90
rules, 33 C.F.R. § 151.50. Section 1004a is effective, as to U.S.
flag tankers, upon ratification of the Amendments to the
Convention by the United States, 33 U.S.C. § 1016(a), or, as
to foreign tankers, upon entry into force of the
Amendments, 33 U.S.C. § 1016(c), neither of which has yet
occurred. The Coast Guard has incorporated these standards
into its regulations for tankers in interstate trade referred to
in paragraph 128 supra.
c. The Vessel Bridge-to-Bridge Radiotelephone Act, Pub.
L. No. 92-63, 85 Stat. 164, 33 U.S.C. §§ 1201 et seq., and
regulations adopted pursuant thereto, 33 C.F.R. Part 26,
require every vessel over 300 gross tons to have radiotelephone
equipment on its bridge.
d. The International Voyage Load Line Act of 1973, Pub,
L. No. 93-115, 87 Stat. 418, 46 U.S.C. 1 86 et seq.,
implements the isions of the Internati vention on
Load Lines, 1966, by authorizing the Coast Guard to prescribe
and enforce load limits for vessels engaged ir international
ae The Coastwise Load Line Act, as amended, 46 U.S.C.
§§ 88 et seq., gives the Coast Guard similar authority with
respect to vessels engaged in coastwise voyages. Coast Guard
regulations implementing these Acts are set forth in
Subchapter E of Title 46 of the Code of Federal
Regulations.
e. The Merchant Marine Act of 1970, Pub. L. No. 91-469,
84 Stat. 1018, amended the Merchant Marine Act of 1936,
46 U.S.C. §§ 1101 et seg., to extend application of the federal
ship construction and operating subsidy programs to bulk
cargo carriers, including tankers. Pursuant to this Act, the
Maritime Administration has promulgated regulations and
orders setting out design and construction standards for oil
tankers as part of its Standard Specifications for Merchant
Ship Construction.
f. The International Regulations for Preventing Colli-
sions at Sea, Pub. L. No. 88-131, 77 Stat. 194, 33 U.S.C. §§
1051 et seq, implement the international convention
eee apn Rp p- standards for lights, sound signals,
rey en | rules and maneuvering a my my for vessels on
the high seas. Similar navigation rules for rivers, harbors and
other inland waters of the United States are prescribed by
33 U.S.C. §§ 151 et seg. and by Coast Guard lations set
forth in Title 33 of the Code of Federal Regulations.
ee Eat
o~
91 Pre-Trial Order
g. Section 311 of the Federal Water Pollution Control Act
Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, 33
U.S.C. § 1251 et seq., authorizes, inter alia, federal regulations
which specify procedures, methods, equipment and other
requirements to prevent and contain the discharge of oil from
vessels, onshore facilities and offshore facilities, and which
jovern the inspection of tankers in order to reduce the
ikelihood of discharges in violation of the Section. § 311(j),
33 U.S.C. § 1321(j). lations under § 311(j) appear in 33
C.F.R. Parts 154-156. ion 311(0), 33 U.S.C. § 1321(o),
provides that § 311 does not preempt any state from imposing
any requirement or liability with respect to the discharge of
oil into its waters and that § 311 does not affect any state
law not in conflict with the Section.
h. The intervention on the High Seas Act, Pub. L. No.
93-248, 88 Stat. 8, 33 U.S.C. §§ 1471 ef sey., implemenis ihe
International Convention Relating to Intervention on the
High Seas in Cases of Oil Pollution Casualties, by authorizing
the Coast Guard to take necessary action to protect the
United States against oil pollution or the threat of oil
lution resulting from a casualty on the high seas outside
its territorial waters.
144. Section 8 of the Merchant Marine Act of 1920, 46 U.S.C.
§ 867, provides that the Maritime Administration is responsible
for the promotion of efficiency and lower costs in transportation
of commodities in U.S. foreign commerce, including the
importation of oil.
145. The Rivers and Harbors Act, 33 U.S.C. § 407, provides
that the creation of any unauthorized obstruction to the navigable
capacity of U.S. waters is prohibited. A true copy of the section
is filed herewith as Exhibit FF.
146. The Coastal Zone Management Act of 1972, Pub. L. No.
92-583, 86 Stat. 1280, establishes a program of federal grants to
coastal states to develop coastal zone management programs.
Pursuant to this program the State of Washington has submitted
a coastal zone management program which is awaiting action by
the Secretary of Commerce.
Pre-Trial Order 92
147. The Deepwater Port Act of 1974, Pub. L. No. 93-627,
88 Stat. 2126, 33 U.S.C. §§ 1501 et seg., authorizes the Coast
Guard to issue licenses for the construction and operation of
deepwater offshore oil terminals beyond the territorial limits of
the United States.
148. Several bills intended to regulate liability for oil
pollution damage have been introduced in the current session of
Congress, including S. 1754, H.R. 9294, and H.R. 10756, which
would establish a comprehensive oil pollution liability and
compensation scheme. True copies of these bills are filed herewith
as Exhibit GG.
INTERNATIONAL AGREEMENTS
149. The convention on the Inter-Governmental Maritime
Consultative Organization, adopted by the United Nations
Maritime Conference held in Geneva in 1948, came into force in
March, 1958. 9 U.S.T. 621, T.LA.S. 4044, 289 U.N.T.S. 48. It
created the Inter-Governmenta! Maritime Consultative Organiza-
tion (“IMCO”), an agency of the United Nations with
responsibilities in the maritime field. Membership in IMCO is
open to all members of the United Nations. As of the end of 1975,
there were 92 full Members of IMCO. The United States is a
Member of IMCO, as are all other major maritime nations. IMCO
has served as a forum for the development of international
standards in the fields of vessel safety and pollution prevention,
including the negotiation and adoption of many of the
international agreements referred to in paragraph 150.
150. The following are international conventions relating to
vessel safety and pollution prevention:
a. International Convention for the Safety of Life at Sea,
1960
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