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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