Petition for Writ of Certiorari — Chevron U.S.A., Inc. v. William J. Sheffield, Governor of Alaska
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Office -S Court, US.
84-634 Jo rit e’D
OCT 19 1984
ALEXANDER L. STEVAS,
CLERK
No. 84-____
IN THE
Supreme Court of the GQnited States
October Term, 1984
Cuevron U.S.A., Inc., et al.,
Petitioners,
VS.
Jay S. HamMMonpD, GOVERNOR OF THE STATE oF ALASKA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Ricuarp E. SHerwoop
Cuar_es P. DiaMonp
400 South Hope Street,
Los Angeles, Calif. 90071-2899
(213) 669-6000
Counsel for Petitioners
Of Counsel:
O’Metveny & Myers
Grecory P. GorcKNER
400 South Hope Street,
Los Angeles, Calif. 90071-2899
KD
i
QUESTION PRESENTED
May the State of Alaska, consistent with the Supremacy
Clause, prohibit oil tankers from discharging clean ballast
into waters of the State in the face of the Coast Guard’s con-
sideration and rejection of such a prohibition aud its adoption,
pursuant to federal statutes, of regulations expressly permit-
ting the discharge of clean ballast within the territorial seas,
including Alaska’s waters ?*
*Although a number of additional parties participated in various
a" of the proceedings below, petitioners here are Chevron U.S.A.,
nc., a subsidiary of Standard Oil Company of California; Atlantic Rich-
field Company; Exxon Corporation; Mobil Oil Corporation; and the
American Institute of Merchant Shipping by the following participat-
ing members: AMOCO Transport Company, a subsidiary of Standard
Oil Co. (Indiana); Crowley Maritime Corporation; OSG Bulk Ships,
Inc., a subsidiary of Overseas Shipholding Group, Inc.; and Texaco
Inc. Pursuant to Supreme Court Rule 28.1, these parties-in-interest
are affiliated with the following publicly-traded corporations: Chevron:
Cetus Corp., Caltex Australia, Ltd. AMAX Inc., and Huntington
Beach Company; Atlantic Richfield: Sinclair & Venezuela Oil Co.,
Park Premier Mining Company, and Utal Corp.; Exxon: Exxon
Pipeline Co., Exxon Shipping Co., Imperial Oil Ltd. (Canadian), and
Reliance Electric Co.; Mobil: Superior Oil Company, Mobil Alaska
Pipeline Company, Montgomery Ward Company, Inc., Montgomery
Ward Credit Corp., MARCOR, Inc., and Container Corporation of
America; Standard Oil (Indiana): AMOCO Canada Petroleum Com-
pany, Ltd.. AMOCO Credit Corp., AMOCO Oil Holdings S.A., Analog
Devices Inc., Cetus Corp., Cyprus Mines Corp., AMOCO (U.K.)
Exploration Company, and AMOCO Australia Ltd.; Crowley: None;
Overseas Shipholding: None; Texaco: Texaco Canada, Ltd., Texaco,
Mexicana, S.A., Wyco Pipeline Co., Scandinaviska Raffinaderi Aktie-
bolaget Scanraff, Deutch Texaco Aktiengesellschaft, Texaco Marco,
Refineria Texaco de Honduras, $.A., Societa Per Azioni Raffineria,
West Shore Pipeline Co., Locap Inc., Dixie Pipeline Co., and Ful-Tex
Euro Services, Inc.
Appellants below were Jay S. Hammond, Governor of the State of
Alaska, Lowell Thomas, Jr., Lieutenant Governor of the State of Alaska,
Avrum M. Gross, Attorney General of the State of Alaska, Ernest W.
Mueller, Commissioner of Alaska Department of Environmental Con-
servation, the Cordova District Fisheries Union, Trustees for Alaska,
and Frank A. Tupper. Appellees below, other than petitioners, were
Gulf Oil Corporation, International Ocean Transport Corporation,
Union Oil Company of California, Intercontinental Bulktank Corp.,
Overseas Bulktank Corp., Ocean Tankships Corp., First Shipmor Asso-
ciates, Second Shipmor Associates, Third Shipmor Associates, Fourth
Shipmor Associates, Manhattan Tankers Co., Inc., Queensway Tankers,
Inc., Alaska Bulk Carriers, Inc., Mathieson’s Tanker Industries, Inc.,
Acquilla Shipping Co., Inc., and Maritime Overseas Corp. The United
States of America appeared and filed a brief amicus curiae.
rH
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..... errr oe i
TABLE OF AUTHORITIES ........................ tii
OPINIONS BELOW | ts + 00's belle een 1
JURISDICTION......... 1
RELEVANT CONSTITUTION AL AN D STATU-
ZUs PRU EUOee ... 22.5 5-000 eee | 2
STATEMENT OF THE CASE ee 2
1. Federal And State Statutes And Besutaiione At
Issue | , acess « phe a 2
2. Factual Sapo . re ¥ | 5
3. Pressedings Below ............56555553 7
REASONS FOR GRANTING THE PETITION _... 11
I. Alaska’s Deballasting Prohibition Conflicts With
Federal Regulations Expressly Permitting The
Controlled Discharge Of Clean Ballast. .—ss—s.. 11
II. State Deballasting Prohibitions Such As The
Alaska Statute Are Inimical To The Coast Guard’s
Ability To Promulgate Rational, Coherent Debal-
lasting Regulations And To Promote Internation-
eh Aqpowmems ..........45. ee 20
A. Coast Guard Regstatiene | ae 20
B. International Treaty-Making —-—_........ 26
CONCLUGBON «wien enc ccusae eee 30
APPENDIX A: Court Of Appeals Opinion | ! la
APPENDIX B: District Court Opinion _. 38a
APPENDIX C: District Court Judgment... 6la
APPENDIX D. Court Of Appeals Order Denying
Pe 674
APPENDIX E: Relevant Constitutional and Statu-
tory Provisions. ............. .... Ga
lil
TABLE OF AUTHORITIES
Cases
Page
Bethlehem Steel Co. v. New York State Labor Relations
Board, 330 U.S. 767 (1947) . ......... | 14
Bowman v. Loperena, 311 U.S. 262 (1940)... ss... 1
Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th Cir.
EE 1, 18
Fidelity Federal Savings and Loan Ass’n v. De te
Cuesta, 458 U.S. 141 (1982)... ...... 14
Haviland v. Butz, 543 F.2d 169 (D. C. Cir. ), cort. denied,
429 U.S. 832 (1976) | eee 18
Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976),
cert. denied, 430 U.S. 977 (1977) . rie 19
National Resources Defense Council, Inc. v. Costle, 568
F.2d 1369 (D.C. Cir. 1977) | 18
Opinion of the Justices, 379 A.2d 782 (N.H.1977) .... 19
Radzanower v. Touche Ross ¢ Co., 426 U.S. 148 (1976) 20
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) .
Ne ta twee eevee 8, 11, 14, 26
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 18
Constitution, Statutes And Rules
U.S. Constitution:
Article VI, Clause2. 2
Act to Prevent Pollution ios Ships, Pub. L. 96-478,
94 Stat. 2297 (1980), codified at 33 U.S.C. §§ 1901-11
EE | .. 29
33 U.S.C. $1905(a) ...... oo fee 29
33 U.S.C. §1905(e) ............ ?y, a
Clean Water Act, 33 U.S.C. § 1251 et seq. .. (1976) : 8, 17
Section 402, 33 U.S.C. § 1342 ne | 17, 18
Section 510, 33 U.S.C.§1370....... * | 19
Section 511(a), 33 U.S.C. §1371{a)(1) .. 19
iv
. a
v
_ Page
Spon sos sie ray Amendments Pubs Le | gaa ot Fara Regulations
Ports and Tanker Safety Act of 1978, Pub. L. 95-474, ; Section 122.1(f) (1983) | | , 1
92 Stat. 1471 (1978), principally codified at 46 U.S.C.A. ) Section 122.3(a) (1983)... BB
§§ 3701-18 (West Supp. 1983): __. | ee |S Federal Rules of Appellate Procedure
Section 5(1)(D), 46 U.S.C. §391a(1)(D).........-20 Rule 26(b) | A
Section 5(1)(F), 46 U.S.C. § 391a(1)(F) . .. 2% Rule 40(a) . 1
Section 5(6)(A) (vii), 46 U.S.C.A. § 3703(a)(7) 12, 20 : Supreme Court Rules
Section 5(6)(C), 46 U.S.C.A. §3703(c) ....... «ss 20 Rule 20.4 | | 1
Section 5(7)(N), 46 U.S.C.A. § 3709 ._.. « &2 Rule 28.1 ;
Ports and Waterways Safety Act of 1972, Pub. L. 92-340, wire |
86 Stat. 424 (1972), codified at 46 U.S.C. § 391a (1976) : 3, 11 ' Federal Register Materials
Section 201(1), 46 U.S.C. §391a(1) a 12 US. Coast Guard, Proposed Rules Respecting Segre-
Section 201(3), 46 U.S.C. § 391a(3) 12 gated Ballast, Dedicated Clean Ballast and Crude Oil
Section 201(7) (A), 46 U.S.C. § 391a(7)(A) 3, 12 Washing, 49 Fed. Reg. 2998 (1984) (to be codified at 33
28 U.S.C. §1254(1) (1976) .. | 1 C.F.R. § 157.10e) ......... 3
28 U.S.C. §2101(c) (1976) .. _.... | plate SO U.S. Coast Guard, Final Rules Senesine Tank —_—
Alaska Statutes: Carrying Oil In Bulk, 48 Fed. Reg. 45718 (1983) 4
Section 46.03.750 | 2 U.S. Coast Guard, Advance Notice of Proposed Rule-
Section 46.03.750(a) 4 making Concerning Waste Reception Facilities, 48
Section 46.03.750(b) | 5 Fed. Reg. 12395 (1983) .................. 29
Section 46.03.750(e) 4 U.S. Coast Guard, Proposed Regulations Resnpting
33 Code of Federal Regulations: Vessels From SBT, CBT and COW Requirements, 45
Section 157.01 (1983) 3 Fed. Reg. 34306 (1980) 23
Section 157.03(e) (1983) | 4 U.S. Coast Guard, Interim Final Rules Respecting Tank
Section 157.03(p) (1983) 4 Vessels of 20,000 DWT or More Carrying Oil in Bulk,
Section 157.09 (1983) 3 44 Fed. Reg. 66502 (1979) ................... 14,25, 27
Section 157.10a (1983) 3 U.S. Coast Guard, Rules Respecting Engineering Equip-
Section 157.10b (1983) 3 ment, 44 Fed. Reg. 53352 (1979) | 4
Section 157.43 (1983) : 3, 13 U.S. Coast Guard, Proposed Rules Seepecting Tank
Section 157.300 (1983) 21 Vessels of 20,000 DWT or More Carrying Oil In Bulk,
Section 157 Subpart F (1983) 23 44 Fed. Reg. 8984 (1979) 5 ——
vi
Page
U.S. Coast Guard, Proposed Rules On Vessels and Oil
Transfer Facilities, 42 Fed. Reg. 32670 (1977) ...._ 7, 23
U.S. Coast Guard, Rules and Regulations for Protection
of the Marine Environment Relating To Tank Vessels
Carrying Oil In Domestic Trade, 40 Fed. Reg. 48280
RN the Te | owes are
U.S. Coast Guard, Miscellaneous Releases
41 Fed. Reg. 54179 (1976)... ..—s—s—s—s—s—iwssisis ee
39 Fed. Reg. 24150 (1974) . ae Lae 13
38 Fed. Reg. 17848 (1973) | | = 12
38 Fed. Reg. 2467 (1973) .................. ee 22
Other Authorities
Bureau of National Affairs, Environment Reporter
[State Water Laws].._—s—s—si—siic............... a
Environmental Policy Div., Cong. Research nite
A Legislative History of the Water Pollution Control
Act Amendments of 1972, 93d Cong., 1st Sess. (1973) .. 19
H. Rep. No. 96-1224, 96th Cong., 2d Sess., reprinted in
1980 U.S. Code Cong. & Ad. News 4849... si sii 29
Research and Special Programs Admin., U.S. Dep’t of
Transportation, Draft Evaluation of Proposed U.S.
Coast Guard Regulations Implementing Regulation 12
of the Protocol of 1978 (Sept.1983)...ssssiéwéi(‘(“a | 7
S. Rep. No. 92-44, 92d Cong., 2d Sess., reprinted in 1972
U.S. Code Cong. & Ad. News 3668... s—sidwisi‘((j#(é#(“ 18
S. Rep. No. 92-724, 92d Cong., 2d Sess., reprinted in 1972
U.S. Code Cong. & Ad. News 2766 | 21, 26
vii
et —————————
Page
U.S. Coast Guard, Final Environmental Impact State-
ment, Regulations for Tank Vessels Engaged im the
Carriage of Oil in Domestic Trade (Aug. 15, 1975)
...... 18, 15, 22, 24, 26, 28
U. S. Coast Guard, Final Environmental Impact State-
ment, Regulations for U.S. Tank Vessels Carrying Ou
in Foreign Trade and Foreign Tank Vessels that
Enter the Navigable Waters of the United States (Oct.
1976) . ore Papert ery ere fon. 26, 27
U.S. Coast Guard, Final ‘pia Analysis and En-
vironmental Impact Statement, Regulations to Imple-
ment the Results of the International Conference on
Tanker Safety and Pollution Prevention (1979)
Scere ce 13, 16, 24, 25, 28
Anne ating tana ais,
ee
PETITION FOR WRIT OF CERTIORARI
Chevron U.S.A., Inc., et al. petition for a writ of certiorari
to review the judgment of the United States Court of Appeals
for the Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. A, infra, at la-
37a) is reported at 726 F.2d 483. The court of appeals’ order
denying a petition for rehearing (App. D, infra, at 67a-68a)
is unreported. The opinion and the final judgment of the
district court (App. B, infra, at 38a-60a, and App. C, infra, at
61a-66a) are also unreported.
JURISDICTION
The opinion of the court of appeals was rendered on F'ebru-
ary 3, 1984. Thereafter, petitioners moved that court, pur-
suant to Federal Rules of Appellate Procedure 26(b) and
40(a), for an order enlarging time within which to seek a
rehearing, and submitted a petition setting forth the grounds
for rehearing. Prior to this Court’s June 18, 1984 denial of
petitioners’ request for leave to file an untimely petition
for certiorari, the court of appeals granted the enlargement
motion. By order dated June 13, 1984, it recalled its mandate
and granted petitioners leave to file, and ordered filed, their
petition for rehearing. In a two-page opinion issued on
August 9, 1984, the court denied rehearing. J urisdiction over
this petition is invoked under 28 U.S.C. § 1254(1) (1976). The
petition is timely pursuant to Supreme Court Rule 20.4."
14 petition for writ of certiorari is timely if filed within 90 days of
the denial of a timely petition for rehearing filed by any party. See
28 U.S.C. § 2101(c) (1976); Sup. Ct. R. 20.4. A petition for rehear-
ing to the court of appeals is timely if filed within 14 days of entry of
judgment or within such other period as is prescribed by the court. See
Fed. R. App. P. 40(a). Because the court below extended petitioners’
time for petitioning for rehearing, and because it accepted their petition
as timely filed, the time for petitioning this Court for a writ of certiorari
did not begin to run until the August 9, 1984 denial of rehearing by the
court of appeals. See, e.g., Bowman v. Loperena, 311 U.S. 262, 266
(1940) (“where the court allows the filing [of a petition for rehearing
beyond the time limit ordinarily prescribed] and, after considering the
merits, denies the petition, the judgment of the court as originally
entered does not become final until such denial, and the time to appeal
runs from the date thereof”).
=
RELEVANT CONSTITUTIONAL
AND STATUTORY PROVISIONS
The relevant constitutional and statutory provisions —
the Supremacy Clause (Article VI, Clause 2) of the United
States Constitution and Section 46.03.750, Alaska Statutes
— are set out in Appendix E, infra, at 69a.
STATEMENT OF THE CASE
By virtue of Alaska law, a federally certificated tanker,
inspected and licensed by the Coast Guard for the carriage of
oil, is effectively prohibited from operating in the Alaska
coastwise trade for which it was specifically designed and
constructed. Built in conformance with Coast Guard regula-
tions to carry and discharge ballast from its cargo tanks, the
vessel’s operations are imperiled by an Alaska statute, upheld
by the court below, which absolutely prohibits the discharge
of ballast from cargo tanks within waters of the State. This
prohibition was adopted by the State despite a long-standing
Coast Guard regulation authorizing oil tankers to discharge
such ballast and that agency’s consideration and rejection of
the same prohibition. Because the Alaska law, particularly
to the extent that it presages similar legislation by other
coastal states, threatens to disrupt the tanker industry and
to undermine ongoing Coast Guard and international regu-
latory programs, review by this Court is warranted.
1. Federal and State Statutes and Regulations At Issue.
Essential to the safe operation of tank vessels is an operation
known as “ballasting.” After a tanker has unloaded its cargo,
and prior to the commencement of its unladen (or ballast)
voyage, a tanker must take on sea water in order properly to
submerge its propeller and rudder, to minimize stress on the
tanker’s hull and bulkheads, and to ensure vessel stability.
Principally in older and smaller vessels, this sea water —
known as “ballast” or “ballast water” — is loaded into empty
cargo compartments.* Immediately prior to or upon arrival
"Newly constructed crude oil carriers in excess of 20,000 deadweight
tons (“DWT”) and newly constructed product carriers in excess of
ee big
a
=
at a loading port, the ballast is discharged and replaced by
cargo. Having been stored in a compartment previously used
for the carriage of oil, the ballast water will necessarily have
some oil content which is discharged during deballasting.
Fulfilling its mandate under the Ports and Waterways
Safety Act of 1972, Pub. L. 92-340, 86 Stat. 424 (1972) (the
“PWSA”) to minimize “damage to the marine environment
by normal vessel operations such as ballasting and deballast-
ing,” PWSA § 201(7)(A), in 1975 the Coast Guard promulga-
ted regulations governing the discharge of ballast water from
cargo tanks. See U.S. Coast Guard, Rules and Regulations for
Protection of the Marine Environment Relating to Tank
Vessels Carrying Oil In Domestic Trade, 40 Fed. Reg. 48280
(1975) (hereafter “1975 Domestic Trade Rules”) (codified as
amended at 33 C.F.R. § 157.01 et seq. (1983)). While pro-
hibiting the discharge of “dirty ballast” within 50 miles of
land, the Coast Guard regulations expressly authorize the
master of a vessel to discharge “clean ballast” within 50 miles
of land and while in port (33 C.F.R. § 157.43 (1983)).* This
30,000 DWT are required by federal regulations and international con-
ventions to be equipped with “segregated ballast” tanks (“SBT”) —
compartments used exclusively for the carriage of ballast water and not
connected to the vessel’s cargo oil and fuel systems. Existing product
carriers in excess of 20,000 DWT must at various times beginni
on Jan 2, 1986 be retrofitted with SBT or “dedicated clean ballast”
tanks (“CBT”) ——- former cargo tanks dedicated for the carriage of
ballast water but which remain connected to the vessel’s piping and
pumping systems. Existing crude oil carriers in excess of 20,000 DWT
that are not equipped with crude oil washing (“COW”) must
at various times beginning on January 2, 1986 be retrofitted with SBT.
Existing crude and product carriers of less than 20,000 DWT and exist-
—_ carriers of between 20,000 and 70,000 DWT equipped with
COW are exempt from the SBT and CBT requirements. See 46
U.S.C.A. §§ 3705-06 (West Supp. 1983); 33 C.F.R. § 157.09, .10a &
.10b (1983); U.S. Coast Guard, Proposed Rules Respecting Segregated
Ballast, Dedicated Clean Ballast and Crude Oil Washing, 49 Fed. Reg.
2998 (1984) (to be codified at 33 C.F.R. § 157.10c).
’The Coast Guard defines ballast water carried in cargo compart-
ments as an “oily mixture.” Such ballast water is of two types: “clean
ballast” is defined as “ballast in a cargo tank which, if discharged from
a vessel that is stationary into clean, calm water on a clear day, would
a oe
regulation was adopted only after thorough consideration and
rejection of the alternatives, including a “zero discharge
standard” — the absolute prohibition of the discharge of any
oily ballast. Although since 1975 the Coast Guard has ex-
tended its rules to foreign vessels operating in U.S. waters
and to U.S. vessels engaged in foreign trade and although
more recently it has promulgated more stringent controls for
the purpose of further reducing ballast-related pollution, the
express authorization to discharge clean ballast has remained
unchanged. See U.S. Coast Guard, Final Rules Respecting
Tank Vessels Carrying Oil in Bulk, 48 Fed. Reg. 45718 (1983).
Disagreeing with the judgment of the Coast Guard as to
how far the regulation of deballasting should go, in 1976 the
State of Alaska adopted the Tanker Act, 1976 Alaska Laws,
ch. 266, and thereby imposed its own comprehensive scheme
for the regulation of the design, construction and operation
of tankers plying the Alaska trade. As part of this scheme,
in AS 46.03.750(e) the Tanker Act imposed an absolute pro-
hibition on the discharge of ballast from cargo tanks and
required that all such ballast “be processed by or in an
onshore ballast water treatment facility.” In 1980 this “zero
discharge standard” was moved to AS 46.03.750(a), and
amended to provide:
“Except as provided in (b) of this section, a person may
not cause or permit the discharge of ballast water from
a cargo tank of a tank vessel into the waters of the state.
A tank vessel may not take on petroleum or a petroleum
product or by-product as cargo unless it arrives in ports
in the state without having discharged ballast from cargo
tanks into the waters of the state and the master of the
not: (1) Produce visible traces of oil on the surface of the water
On adjoining shore lines; or (2) Cause a sludge or emulsion to be “~
ited beneath the surface of the water or upon adjoining shore lines.”
33 C.F.R. § 157.03(e) & (p) (1983). Generally, ballast which com-
plies with the “visible sheen test” will have an oil content of approxi-
mately 15 parts per million or less. See U.S. Coast Guard, Rules Respect-
ing Engineering Equipment, 44 Fed. Reg. 53352, 53355 (1979). All
other ballast water carried in cargo tanks is classified as “dirty ballast.”
onlin:
vessel certifies that fact on forms provided by the
department.’”*
2. Factual Background. Enforcement of Alaska’s debal-
lasting prohibition threatens to alter radically the nature of
tanker operations in Alaska’s coastwide trade, a trade in
which petitioner Chevron U.S.A., Inc. (“Chevron”) is heavily
engaged. From refineries located at Nikiski, on Alaska’s
Kenai Peninsula, as well as Richmond and El Segundo,
‘California, Chevron moves refined petroleum products to
primary bulk storage facilities at Valdez, Ketchikan and
Dutch Harbor. From these locations, refined products are
delivered by tank vessel to several secondary storage facilities
abutting some of Alaska’s smaller ports, including Cold Bay,
Kodiak, Steward, Skagway, Yukatat, Homer, Cordova and
Juneau. Products are also delivered by tanker from Chevron’s
primary bulk storage locations and its Nikiski refinery to
numerous fish processing plants, lumber companies and other
Chevron customers along the Alaska coast. Like those cus.
tomers who receive petroleum products from secondary
storage facilities, these industrial and individual consumers
are entirely dependent on Chevron’s tanker deliveries for
their petroleum needs.
Chevron’s coastwise trade relies almost exclusively on the
Alaska Standard, a 2,648 DWT tanker built in 1959 which,
because of the shallow draft of the ports it must serve, was
specifically designed to deliver refined products along the
Alaska coast. As is the case with most other tankers, the
Alaska Standard is not equipped with a sufficient number of
segregated ballast compartments to meet its ballast needs.
Accordingly, as it discharges cargo at receiving ports, it must
load additional ballast into empty cargo tanks. Prior to
taking on a new cargo at one of Chevron’s primary bulk
*AS 46.03.750(b) exempts from this prohibition the discharge of
ballast when “necessary for the safety of the tank vessel and [when] no
alternative action is feasible.” By stipulation of the parties, enforcement
of the Alaska statute has been stayed pending final resolution of this
litigation.
_ =
storage locations, this ballast is discharged overboard. De-
ballasting is done pursuant to Coast Guard regulations that
require that the effluent be discharged and monitored so as
not to cause a visible sheen on the water.
Because the Alaska Standard cannot feasibly be equipped
with sufficient segregated ballast capacity to obviate the need
for ballasting its cargo tanks,® enforcement of the Alaska de-
ballasting prohibition effectively requires that the vessel dis-
charge ballast into onshore treatment facilities. However,
none of the primary storage facilities at which the Alaska
Standard loads cargo has a treatment plant that can accom-
modate the vessel.* Further, the economics of servicing coast-
al Alaska cannot justify the cost of constructing new facilities
for the Alaska Standard, a cost which in 1978 Chevron esti-
mated to be in excess of $1.5 million. Short of withdrawing
from a trade on which the lives and livelihoods of so many
coastal Alaskans depend, the practical effect of Alaska’s pro-
hibition is to require Chevron to retire the Alaska Standard
and replace it with tug and barge oil transport — an alterna-
tive Chevron has thus far resisted because of the greater
safety inherent in tanker transportation.
The dilemma facing the Alaska Standard will not be unique
if the other coastal states are free to follow Alaska’s lead and
impose their own deballasting prohibitions. Like the Alaska
°The Alaska Standard’s carrying capacity is only 18,000 barrels.
Safely to navigate Alaska’s waters, which can be treacherous during the
winter months, the vessel requires up to 8,500 barrels of ballast. As
documented in the district court record, if sufficient cargo tanks were
converted and dedicated to the carriage of ballast, the vessel’s cargo
Carrying capacity would be so reduced that its continued operation in
the Alaska trade would cease being practical or economically viable.
*The treatment facility operated at Valdez by the Valdez Dock Com-
pany has a total capacity of 5,000 barrels a processing rate of 42
barrels per hour, far too limited to accommodate the Alaska Standard’s
8,500 barrels of ballast water. (The Valdez facility operated by Alyeska
Pipeline Services cannot accept at its dock vessels smaller than 16,000
DWT.) Ketchikan has facilities for receiving but not treating 1,100
barrels, which must be transported elsewhere by tanker or barge for
processing. Dutch Harbor has neither receiving nor treatment facilities.
edie
Standard, a sizeable percentage of vessels comprising the U.S.
Flag Fleet is neither equipped, nor required to be retrofitted,
with segregated or dedicated clean ballast capacity. Accord-
ing to the Coast Guard’s current census, some fifteen U.S. Flag
tank vessels are totally exempt from segregated and dedicated
clean ballast requirements because they are under 20,000
DWT. Further, of the 100 currently active tankers in the
20,000 to.40,000 DWT class, only two have a sufficient number
of segregated ballast compartments to be considered fully
segregated ballast vessels. And of the 92 active vessels in ex-
cess of 40,000 DWT, 41 are exempt from segregated ballast
requirements primarily because they are equipped with crude
oil washing systems.
Further, there currently exists in the United States very
little shoreside reception capacity capable of receiving clean
ballast. Indeed, a recent Department of Transportation study
concerning available facilities for the reception of dirty bal-
last and other highly contaminated shipboard wastes — facili-
ties which are far more plentiful than those that can addition-
ally accept clean ballast — revealed that fifteen of the nation’s
seventy-three petroleum loading ports lacked any such capa-
city.’ Facilities at the remaining ports would quickly become
overtaxed were they required to receive clean ballast in addi-
tion to more concentrated oily wastes. For as the Coast Guard
has noted, “[vJery few ports have adequate facilities for re-
ceiving and processing large volumes of mixtures containing
little oil.” 42 Fed. Reg. 32670, 32671 (1977).
3. Proceedings Below. Proceedings were commenced in the
district court when, on the eve of the Tanker Act’s effective
date in September 1977, Chevron, joined by a number of other
owners of fleets of tank vessels and the American Institute of
Merchant Shipping, filed a complaint challenging the constitu-
tionality of various of the Act’s provisions and the regulations
™See Research and Special Programs Admin., U.S. Dep't of Trans-
portation, Draft Evaluation of Proposed U.S. Coast Guard Regu-
lations Implementing Regulation 12 of the Protocol of 1978, Tables
4.13 & 5.1 (Sept. 1983).
=
promulgated thereunder. Following disposition of a number
of unrelated issues,* on December 29, 1978, petitioners moved
for summary judgment declaring unconstitutional Alaska’s
ban on deballasting. On September 18, 1979, the district court
handed down its decision. After thoroughly reviewing the
PWSA and its successor, the Ports and Tanker Safety Act,
Pub. L. 95-474, 92 Stat. 1471 (1978) (the “PTSA”), and their
legislative histories, and after assessing the potential impact
of the Clean Water Act, 33 U.S.C. § 1251 et seg. (1976), the
district court concluded :
“Federal jurisdiction over ballasting and deballasting of
tankers is, by reason of Title Il, PWSA, exclusive and
State statutes and regulations relating to this subject
are preempted” (App. B, infra, at 58a).
Further, the district court held that, to the extent Congress
did “not completely foreclose state legislation” affecting de-
ballasting, Alaska’s law was “in conflict with Coast Guard
regulations” and therefore invalid (id. at 59a). Respondents
appealed.
In February 1984, a panel of the court of appeals reversed
the district court and directed that judgment be entered in
favor of the state officials on the preemption issue. The court
began its analysis by concluding that Congress did not intend
by the PWSA/PTSA to occupy the field of deballasting reg-
ulation. Although recognizing that in Ray v. Atlantic Rich-
field Co., 435 U.S. 151 (1978), this Court held that Title II of
the PWSA was intended to preempt state regulation, the
court confined the holding of Ray to vessel design and con-
®In the aftermath of this Court’s March 1978 decision in Ray v.
Atlantic Richfield Co., 435 U.S. 151 (1978), the defendant state officials
abandoned their defense of various of the Act’s equipment, operatin ane 1978
and tug escort requirements. Thereafter, following a trial, in June 197
the district cowrt invalidated provisions of the Tanker Act
Coestel Protection Fund taaneed Gy 0 qutem of aauusl “aE
assessments levied on tankers ing in Alaska’s waters on the basis
of their design characteristics; and in 1981 the district court
struck down as violative of the Fourth Alaska’s scheme of
warrantless tanker inspections. The defendant state officials did not ap-
peal these rulings.
~~
struction standards (App. A, infra, at 6a). It distinguished
federal deballasting rules promulgated pursuant to Title I,
noting that although ship design and construction are matters
for national attention, the control of marine pollution “should
be a collaborative federal/state effort rather than an exclusive-
ly federal one” (id. at 10a). In this regard, the court looked
not to the provisions of the PWSA/PTSA, which it recog-
nized entrusted the regulation of tanker deballasting to the
Coast Guard, but rather to the Clean Water Act. From that
Act, which the court characterized as the “heart” of the federal
marine environmental protection scheme, the court discerned
a congressional intent to maintain the primacy of the states in
dealing with pollution, including ballast-related pollution,
within their coastal waters. The court of appeals concluded
that “[s]uch joint regulation [under the Clean Water Act]
undermines the argument that Congress in enacting the
PWSA/PTSA implicitly intended to occupy the field of
regulating tanker pollution in a state’s territorial waters” (id.
at 12a).
The court also dismissed the argument that state regulation
of deballasting would frustrate the objectives that Congress
sought to achieve when it entrusted this aspect of vessel
regulation to the Cosst Guard. Although it recognized that
Congress intended for the Coast Guard to formulate a set of
complementary design and operational rules to minimize
ballast-related pollution, balanced against the economic impact
of such regulation, the court perceived no threat to this objec-
tive by disparate state standards. In the court’s view, because
of the absence of any need for “uniformity in the area of
coastal environmental regulation,” the weighing and balancing
required of the Coast Guard “could co-exist with the opportun-
ity for the states to set stricter standards” (id. at 17a).
The court of appeals similarly rejected the claim that piece-
meal deballasting regulation by the states would stand as an
obstacle to the congressional objective of achieving inter-
national agreement respecting tanker controls. Relying on
its narrow construction of Ray, the court concluded that
=
“although national uniformity and international consensus
are critical concerns in the establishment of tanker design
standards, those concerns are not essential in the regulation
of pollutant discharges into coastal waters” (id. at 18a).
Finally, the court found no actual conflict between Coast
Guard regulation expressly permitting the controlled dis-
charge of clean ballast within 50 miles of land and the Alaska
law prohibiting it. Ignoring the Coast Guard’s rejection of
the State’s preferred solution, and the amicus brief of the
United States on behalf of the Coast Guard challenging the
Alaska law as in conflict with federal regulations, the court
of appeals observed that compliance with both is not a physi-
cal impossibility. Further, the court found that the objective
of the State regulation — the absolute prohibition of ballast
inputs into the coastal waters — complemented the federal
policies implicit in the PWSA/PTSA and the Clean Water
Act — the eventual elimination of harmful ocean pollution
(id. at 28a).
On rehearing, petitioners sought to correct two significant
misconceptions on which the court of appeals’ decision appear-
ed to be based. Petitioners noted, first, that Alaska’s deballast-
ing prohibition had not been promulgated under the authority
of the Clean Water Act; and second, that as construed by
the EPA, and as codified in its regulations, the Clean Water
Act was not intended to apply to discharges resulting from
vessel operations such as deballasting. The court of appeals
dismissed the first observation as irrelevant — noting that its
reliance on the Act was simply to demonstrate a “congres-
sional intent ... that there should be federal-state collabora-
tion in the regulation of oil pollution within three miles of
shore” (App. D, infra, at 67a). The court of appeals rejected
petitioners’ reliance on the EPA’s interpretative regulation
with the comment that it did not rise to the level of a “specific
administrative interpretation relating to deballasting” (id.
at 68a).
eee
~~ =
REASONS FOR GRANTING THE PETITION
In Ray v. Atlantic Richfield Co., supra, this Court recog-
nized Congress’ intent to establish a single, federal regime
for the regulation of the oil tanker trade. The Court held
that, as to matters requiring uniformity such as tanker design
and construction standards, the power of that regime was
intended to be absolute. But even as to matters which do not
require across-the-board uniformity, such as vessel size lim-
itations and tug escort requirements, the Court held that once
the Coast Guard has addressed the issue, conflicting or more
rigorous state regulation must give way (see 435 U.S. at
171-73, 175-78).
In the case at bar, the Coast Guard, after several years of
careful consideration, determined that the controlled dis-
charge of clean ballast from cargo tanks should be permitted,
and it expressly rejected the zero-discharge standard that
the State of Alaska prefers. These decisions grew out of a
congressionally mandated assessment of the ballast-related
pollution problem, including consideration and adoption of
complementary design and equipment solutions, the economic
costs of more stringent regulations and the environmental
benefits to be gained thereby. These decisions also reflected
the Coast Guard’s mandate to discharge its regulatory author.
ity with sensitivity toward international implications of
standards it adopted and mindful of the Congress’ desire to
promote multinational agreement. Alaska’s deballasting pro-
hibition thus stands not only in conflict with Coast Guard
regulations but also as an obstacle to the accomplishment of
important congressional objectives underlying those regula-
tions.
L
ALASKA’S DEBALLASTING PROHIBITION CONFLICTS
WITH FEDERAL REGULATIONS EXPRESSLY
PERMITTING THE CONTROLLED DISCHARGE
OF CLEAN BALLAST
In 1972, Congress enacted the PWSA, Pub. L. 92-340, 86
Stat. 424 (1972), in significant part to establish a comprehen-
~~ =
sive federal regulatory approach for the protection of the
marine environment from the hazards of oil tanker opera-
tions. To this end, Title II of the Act directed the Coast
Guard to adopt “rules and regulations as may be necessary
... With respect to the operation of such vessels” in order to
“prevent or mitigate the hazards to life, property, and the
marine environment.” PWSA §201(1) & (3), 46 U.S.C.
§ 391a(1) & (3) (1976). Specifically, the Coast Guard was
charged with the responsibility of promulgating standards
“to reduce damage to the marine environment by normal
vessel operations such as ballasting and deballasting.” Jd.
§ 201(7)(A), 46 U.S.C. § 391a(7)(A) (1976).°
After nearly two years of study following the enactment of
the PWSA, in October 1975 the Coast Guard promulgated a
comprehensive, economically sensible and technically feasible
set of complementary design, equipment and operating stand-
ards adopted for the purpose of achieving “a significant
reduction of operational pollution from tank cleaning and
deballasting operations.” 1975 Domestic Trade Rules, at
48280." Although imposing design and equipment require-
ments on newer, larger vessels to eliminate the need to place
ballast in cargo tanks in the first instance, the Coast Guard
recognized that such solutions were not practical or appropri-
ate in the case of vessels of the size and vintage of the Alaska
Standard and, instead, opted in favor of an operational solu-
tion. As to these tankers, the Coast Guard limited the dis-
*Congress reiterated these directions in 1978, when it enacted the
PTSA, Pub. L. 95-474, 92 Stat. 1471 (1978), now codified at 46
U.S.C.A. §§ 3701-18 (West Supp. 1983). By that Act, the Coast Guard
was directed to promulgate regulations for the “enhanced protection of
the marine environment,” including regulations designed to achieve “the
reduction or elimination of discharges during ballasting [and] deballast-
ete § 5(6) (A) (vii), 46 U.S.C.A. § 3703(a)(7) (West Supp.
The Coast Guard rulemaking proceedings respecting deballasting
controls, which began in January 1973 when the agency published an
advance notice of proposed rulemaking (see 38 Fed. Reg. 2467
(1973)), were suspended pending the outcome of the 1973 Interna-
tional Conference on Marine Pollution (see 38 Fed. Reg. 17848
(1973)). Coast Guard deliberation was resumed in late 1973, and on
niin.
charge of dirty ballast to operations on the high seas, but
expressly authorized the discharge of clean ballast while in
or enroute to port subject only to the requirements that the
vessel be equipped with an operative automatic oil discharge
monitoring and control system meeting Coast Guard speci-
fications and that it discharge through a fixed piping system
above the waterline. See 33 C.F.R. § 157.43(a) (1983).
In rulemaking following the enactment of the PTSA, the
Coast Guard significantiy lowered the deadweight tonnage
thresholds for segregated ballast and sanctioned other design
and equipment solutions to the ballast pollution problem.
Thus, in regulations proposed in February 1979 and adopted
in November 1979, the Coast Guard imposed segregated or
dedicated clean ballast requirements on various new and exist-
ing vessels as small as 20,000 DWT. However, for still smaller
tankers, as well as crude oil carriers of various sizes equipped
with crude oil washing systems,” the Coast Guard took no
steps to prohibit the carriage of ballast in cargo compartments
and retained the regulation expressly authorizing the dis-
June 28, 1974 the = issued its proposed regulations (see 39 Fed.
Reg. 24150 (1974) ) a comprehensive Draft Environmental Impact
Statement. Thereafter, public comments were solicited and evaluated
and hearings held during July 1974. Following this evaluation and the
completion of various studies, on August 15, 1975 the Coast Guard
released its final environmental impact statement (see U.S. Coast Guard,
Final Environmental Impact Statement, Regulations for Tank Vessels
Engaged in the Carriage of Oil in Domestic Trade — Protection of the
Marine Environment (August 15, 1975) (hereafter “1975 Coast Guard
EIS”)). And on October 14, 1975 it adopted and published its rules and
regulations for tank vessels carrying oil in the domestic trade.
In 1976, these regulations were made applicable to U.S. Flag tank
vessels in foreign trade and foreign flag tank vessels operating in the
navigable waters of the United States (see 41 Fed. Reg. 54179 (1976) ).
Crude oil washing is a cargo tank cleaning system that employs
crude oil rather than sea water as the tank washing medium. Because of
the solvent properties of oil, COW is more effective in removing oil resi-
dues from a cargo tank than are water washing systems. Accordingly,
the use of COW followed by a water rinse of the tanks generally enables
the vessel to achieve a clean ballast condition when the tanks are ulti-
mately ballasted. See U.S. Coast Guard, Final Regulatory Analysis and
Environmental Impact Statement, Regulations to Implement the Results
of the International Conference on Tanker Safety and Pollution Preven-
tion 32 (1979) (hereafter “1979 Coast Guard EIS’).
- =
charge of clean ballast in state waters. See U.S. Coast Guard,
Proposed Rules Respecting Tank Vessels of 20,000 DWT or
More Carrying Oil In Bulk, 44 Fed. Reg. 8984 (1979); U.S.
Coast Guard, Interim Final Rules, etc., 44 Fed. Reg. 66502
(1979) (hereafter “1979 Coast Guard Rules”).
The court below found no conflict between the Coast Guard’s
authorization to discharge clean ballast and Alaska’s across-
the-board deballasting prohibition principally because “the
state law prohibits acts that the federal] regulations allow
but do not require.” (App. A, infra, at 30a). Thus, the court
observed, “No party contends that it is physically impossible
to comply with both the Alaska statute and the relevant Coast
Guard regulations” (1d. at 33a).
This Court has repeatedly held, however, that an irrecon-
cilable conflict may arise between federal law and a more
rigorous state standard even when the federal regulation is
permissive. As the Court noted in Ray,
“<«TWhhere failure of ... federal officials affirmatively to
exercise their full authority takes on the character of a
ruling that no such regulation is appropriate or approved
pursuant to the policy of the statute,’ States are not per-
mitted to use their police power to enact such a regula-
tion.”
435 U.S. at 178, quoting Bethlehem Steel Co. v. New York
State Labor Relations Board, 330 U.S. 767, 774 (1947); see
Fidelity Federal Savings and Loan Ass’n v. De la Cuesta, 458
U.S. 141, 146 (1982) (holding that California’s prohibition on
the enforcement of “due-on-sale” clauses by federal savings
and loan associations was preempted by a Federal Home Loan
Bank Board regulation providing that such an “association
continues to have the power” to enforce such clauses). That
is precisely the case here.
During its initial consideration of deballasting controls in
the early 1970’s, the Coast Guard was urged to adopt a total
prohibition on the discharge of ballast water from cargo
tanks, i.e., a “zero-discharge” standard. For reasons explained
min
in the 1975 Coast Guard EIS (see note 10, supra), the Coast
Guard rejected this proposal:
“In order to reduce operational outflows, regulations
prohibiting any discharge of any oily mixture to the sea
from a tank vessel’s eargo spaces might be published. ...
“The concept of a total prohibition against discharges
of oily mixtures into the sea and these means of achieving
such a goal have been rejected for the following reasons:
it is inconsistent with the standards established by the
1973 Marine Pollution Convention; it would create greater
shore reception facility problems than we already have
with the proposed regulations; it would involve addi-
tional time delays for tankers; and it sets a standard that
will be impractical for application to vessels other than
tankers” (id. at 60a-60b).
Further, the Coast Guard was urged to adopt more stringent
standards for vesseis operating in the coastal trade. As one
commentator argued, “[T]here is an environmental justifica-
tion for applying higher standards to coastal traffic. Coastal
tankers will tend to spend more time in ecologically sensitive
waters. Thus, ballasting operations may seriously damage the
environment, even if low effluent levels can be achieved” (id.
at 133). The Coast Guard found this proposal unpersuasive
and, from an environmental standpoint, unnecessary :
“As far as tanker operations are concerned, the dis-
charge criteria in the regulations prohibit any discharge
of [dirty ballast] within 50 miles of :and, so ballasting
operations will not seriously damage the environment in
‘these ecologically sensitive waters’ as the comment al-
leges” (id. at 8-9).
48The Coast Guard took express note of the Alaska coast: “The permit
agreement between the of the Interior and Alyeska Pipeline
1 stipulates that ships loading there [Valdez] will discharge
all oily residues ashore and that shore reception facilities will be pro-
vided. This satisfies demands for such a standard on this trade without
influencing international acceptance of the [1973] Marine Pollution
_— due to unilateral U.S. action.” 1975 Coast Guard EIS, at
- =
During its 1979 rulemaking proceedings under the PTSA,
the Coast Guard again considered and rejected more stringent
limitations on the discharge of ba!last water from cargo tanks.
In first propesing regulations, the Coast Guard announced its
intention to exempt from segregated ballast retrofit require-
ments existing crude carriers of less than 70,000 DWT equip-
ped with crude oil washing systems. See 44 Fed. Reg. 8984,
8985 (1979). Inasmuch as they authorized such vessels to
continue ballasting and deballasting from cargo compart-
ments, these proposed regulations met with strong opposition
from a number of coastal states and environmental groups.” .
The Coast Guard dismissed these objections. In addition to
jeopardizing the United States’ ability to promote interna-
tional agreement, the Coast Guard observed that attainment
of a zero-discharge standard for all crude carriers in excess
of 20,000 DWT by requiring the use of SBT in lieu of COW
was not cost effective :
“(I]t is important to balance cost and benefits, espe-
cally when inflation is considered the major national
problem in the United States. This proposed regulatory
action {the SBT/COW option for crude carriers under
70,000 DWT] reduces oil pollution by about the same
amount as... proposals [requiring SBT], but at about
4 of the cost.” 1979 Coast Guard EIS, at 147.
It is thus apparent that Alaska’s deballasting prohibition
represents an attempt to override the Coast Guard’s judgment
that an across-the-board zero-discharge standard would be
diplomatically unwise, technically impractical and environ-
*For example, noting that “[t]he most direct way to limit the release
of oil to the sea during deballasting is simply never to mix oil with
ballast water,” one commentator protested the elimination of the man-
datory segregated ballast requirement, particularly for the U.S. coastwise
trade “where a significant fraction of voyages are relatively short hauls
of Alaskan or [Outer Continental Shelf] crude.” See 1979 Coast
Guard EIS, at 119, 123 (comments of the Center for Law and Social
Policy).
ee ee a
= =
mentally unnecessary. Nonetheless, the court of appeals dis-
missed this manifest conflict, principally because it viewed the
preemption issue as having been settled by the Clean Water
Act, 33 U.S.C. § 1251 et seq. (1976) (the “CWA”). The court
construed the CWA as expressly empowering the states to
impose discharge limitations applicable to deballasting. It
reached this conclusion by observing that under Section 1342
the states are empowered within their own waters to admin-
ister locally the National Pollutant Discharge Elimination
System (“NPDES”) by establishing their own effluent dis-
charge limitations, which may be more stringent than federal
standards (App. A, infra, at 10a). By then assuming that
Alaska’s deballasting prohibition constituted an effluent lim-
itation promulgated under the Act, the court reasoned that
“the Alaska statute at issue in this case is converted by the
CWA into a federal standard which the EPA is required to
enforce” (id. at 13a-14a). Because it viewed the Alaska statute
as thus having the force of federal law, it concluded that, as to
deballasting, the CWA “demonstrates a congressional intent
that there be joint federal/state regulation of ocean waters
within three miles of shore” (id. at 12a).
The essential premise of the court’s reasoning — that Alas-
ka’s deballasting prohibition is part of the NPDES permit
system and thus has the force of federal law — is flatly wrong.
It is true that under Section 402 of the CWA the states may
assume responsibility for developing and administering a
permit system within their waters and, further, that the states’
permit requirements may be more stringent than those
adopted by the EPA as national minimums. See 33 U.S.C.
§ 1342(b)(1) (Supp. III 1979). Alaska, however, has never
sought to develop and administer its own NPDES permit
system (see BNA, Env’t Rep. [State Water Laws], at
611.0111). More importantly, the authority of the states ex-
tends only to the regulation of activities “covered by [EPA]
regulations” (40 C.F.R. § 122.1(f) (1983) ). And in construing
cniitien
the reach of the CWA, as is its nondiscretionary duty, see
National Resources Defense Council, Inc. v. Costle, 568 F.2d
1369, 1375-77 (D.C. Cir. 1977), the EPA has expressly ex-
empted from the NPDES permit requirements “any .. . dis-
charge incidental to the normal operation of a vessel” (40
C.F.R. § 122.3(a) (1983)). Thus, contrary to the assumption
of the court below, federal law does not endorse state regula-
tion of deballasting as a matter of federal water pollution
policy ; it expressly disavows it.’®
Even were this exclusion to be ignored, the fact remains that
in enacting the permit provisions of the CWA, Congress did
not intend to authorize the states to override federal judg-
ments made under other statutory schemes that address dis-
crete aspects of the marine pollution problem. The permit
provisions of the CWA, originally enacted in 1972 as the
Federal Water Pollution Control Amendments to the Water
Quality Act of 1970, Pub. L. 92-500, 86 Stat. 816 (1972) (the
“F'WPCA”), represented a federal response to the deteriora-
tion of the states’ coastal and inland waters and, equally, to
the states’ historic failure to take adequate remedial meas-
ures. See S. Rep. No. 92-44, 92d Cong., 2d Sess., reprinted in
1972 U.S. Code Cong. & Ad. News 3668, 3671-75. Thus, Con-
gress authorized the establishment of minimum federal water
‘*In denying the petition for rehearing, the court of appeals dismissed
as “far-fetched” petitioners’ construction of 40 C.F.R. § 122.3(a) as
exempting from the scope of the CWA, and hence from the NPDES
permit system, the discharge of ballast by a vessel bay hy infra, at
68a). However, as documented in the record below, th A has never
required a NPDES it as a condition for the discharge of ballast by
an oil tanker. The EPA’s construction of the CWA, which is entitled
to great deference (see, e.g., Haviland v. Butz, 543 F.2d 169, 174
(D.C. Cir.), cert. denied, 429 U.S. 832 (1976), quoting Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969) ), is also consistent
with the position taken by the United States as amicus curiae throughout
the proceedings below: “[U]nder 33 U.S.C. § 1342 [the CWA) and the
implementi Ee peer vessels are excluded from the requirement to
have an NP it for discharge incidental to normal operation.”
Brief of Amicus Curiae, United States of America, at 22 n. 7, Chevron
U.S.A.; Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984); Brief of the
United States as Amicus Curiae, at 14 n. 9, Chevron U.S.A., Inc. v.
Hammond, No. A-77-195 (D. Alaska Sept. 18, 1979).
a the
——e ee ee ee ee ee et
bow
ee ee ee ee ee See
:
;
—19—
quality standards and effluent limitations covering a wide
spectrum of water pollution sources to serve as a national
benchmark. Mindful of the states’ traditional responsibility to
protect the environmental integrity of their respective waters,
Congress carefully crafted the Act so as not to oust state reg-
ulation of water pollution so long as those efforts were consis-
tent with minimum federal standards. To remain unaffected,
however, was the primacy of the federal government under
other statutory schemes in the regulation of specific industrial
activities potentially contributing to the water pollution prob-
lem. Thus, as Representative Price noted during floor debate
of the FWPCA:
“(The FWPCA] is far reaching and pervasive in its
effect on water quality, but it was not intended to amend
other basic enabling statutes .... This bill is not the ap-
propriate vehicle for amending a major piece of legisla-
tion, thoroughly considered in committee and by the Con-
gress, which established at the direction of the Congress a
thorough and pervasive regulatory program ....” En-
vironmental Policy Div., Cong. Research Service, A Leg-
islative History of the Water Pollution Control Act
Amendments of 1972, 93d Cong., 1st Sess. 556 (1973)
(Comm. Print) (emphasis added).'*
Indeed, the language of the FWPCA demonstrates a congressional
intent to leave undisturbed the preemptive effect of federal regulations
yy ated under different statutory schemes. Thus, Section 511 (a)
A, 33 U.S.C. § 1371(a)(1) (1976) expressly prohibits the
> be being construed as “limiting the authority or functions of any
officer or agency of the United States under any other law or regulation.”
Further evidence is provided by the language by which Congress made
the CWA non-preemptive. Thus, in Section 510, Congress declared:
“(Nothing in this chapter” shall preclude the states from adopting a
standard r the discharge of pollutants (33 U.S.C. § 1370
(1976) (emphasis added) ). By limiting non-preemption to the CWA
itself, Congress made clear its intention to leave unaffected preemption
that would result from any other federal regulatory effort. See Minne-
sota v. Hoffman, 543 F.2d 1198, 1208 (8th Cir. 1976), cert. denied,
430 U.S. 977 (1977) (“{Section 510] does not purport to grant the
States any new authority .... Thus it [only] prevents the Amendments
from pre-empting the States from adopting higher pollution control
standards”); Opinion of the Justices, 379 A.2d 782, 788 (N.H. 1977).
— =
In construing the CWA to empower the states to override
federal regulations promulgated under the PWSA/PTSA, the
court below also violated a fundamental tenet of statutory con-
struction. The CWA is a statute of general applicability with
no greater focus on deballasting than on any other activity
that might contribute to water pollution. Indeed, the CWA is
entirely silent on the subject of deballasting; the words “bal-
lasting” and “deballasting” nowhere appear. In contrast, the
PWSA/PTSA deals expressly with oil tanker deballasting.
In view of this, the court of appeals’ conclusion that the CWA
is evidence of Congress’ intent to permit conflicting state-fed-
eral deballasting regulation under the PWSA/PTSA runs
afoul of the principle that “a statute dealing with a narrow,
precise, and specific subject is not submerged by a... statute
covering a more generalized spectrum.” Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976).
II.
STATE DEBALLASTING PROHIBITIONS SUCH AS THE
ALASKA STATUTE ARE INIMICAL TO THE COAST
GUARD’S ABILITY TO PROMULGATE RATIONAL,
COHERENT DEBALLASTING REGULATIONS AND TO
PROMOTE INTERNATIONAL AGREEMENT
A. Coast Guard Regulation. Pursuant to congressional
directives, the Coast Guard has evolved a mix of interrelated
and complementary design, equipment and operational stand-
ards for the control of ballast-related pollution depending on
a vessel’s size, age and cargo.’ As noted earlier, for most
new tankers, the federal government has adopted predom-
ton or clmninetion of Glockergee daring bellasting {and} obetlostne-
e ation of ges during asting [and] deballasting,”
PTSA § 5(6) (A) (vii), 46 U.S.C.A. § 3703(a) (7) (West Supp. 1983),
Congress has also directed the agency to solicit the views of loumoned
a including state and local governments, id. §5(6)(C), 46
S.C.A. § 3703(c), and to balance competing interests by basing its
standards upon “the best available technology . . . unless clearly shown
that (such standards would] create an undue economic impact which is
not outwei ed by the benefits to. .. protection of the marine environ-
ment,” id. ) 5(1)(D), 46 U.S.C. § 391a(1)(D). The Coast Guard has
also been directed to take a “system approach” to the regulation of bal-
—
inantly a design solution, requiring segregated ballast on
new crude oil carriers in excess of 20,000 DWT and new
product carriers in excess of 30,000 DWT. For larger exist-
ing vessels, the Coast Guard has opted for a combination
of redesign and equipment standards, requiring that existing
product carriers in excess of 20,000 DWT eventually be
retrofitted with SBT or CBT, and existing crude carriers
in excess of 20,000 DWT with SBT or COW. The control
of ballast-related pollution from vessels not exceeding
these thresholds has been undertaken with a combination of
equipment requirements and operating rules. Such vessels
are permitted to discharge dirty ballast only beyond 50 miles
of land, in prescribed quantities, at prescribed rates and under
carefully monitored conditions. Within 50 miles of land, only
clean ballast may be discharged, and the deballasting must be
monitored by equipment meeting Coast Guard specifications.
Finally, pursuant to Section 5(7)(N) of the PTSA, 46
U.S.C.A. § 3709 (West Supp. 1983), the Coast Guard has de-
veloped a program for exempting vessels from SBT, CBT and
COW requirements in those situations in which it determines
that “shore-based reception facilities are a preferred method
of handling ballast.” See 33 C.F.R. §§ 157.300-.310 (1983).
To permit coastal states such as Alaska to override these
federal judgments by developing their own, conflicting debal-
lasting controls would not only deprive the Coast Guard of its
ability to balance the competing technological, environmental
and economic interests, but also would fatally undermine the
phased implementation of a rational and coherent federal
solution to the deballasting problem. For example, current
Coast Guard regulations require owners of existing vessels to
purchase and install elaborate equipment such as crude oil
washing systems, oil discharge monitors and above-the-water
piping systems solely so that, when discharged, the ballast
last-related pollution; i.e., to develop a regulatory scheme balanced by an
appropriate mix of design, equipment and operational solutions formu-
lated with due regard for differences among the vessels it is charged
with regulating. See S. Rep. No. 92-724, 92d Cong., 2d Sess. 13-14,
reprinted in 1972 U.S. Code Cong. & Ad. News 2766, 2773-74.
—
water they carry in cargo compartments will have sufficiently
low level amounts of oil as not to pose any substantial environ-
mental risk. Flaunting these standards, Alaska dictates that
no ballast water be discharged from cargo tanks. Vessel
owners are thus caught in a regulatory “tug-o’-war” in which
they are compelled by the Coast Guard to purchase and install
elaborate equipment that is rendered purposeless by Alaska.
The unacceptability of a state ballasting prohibition is
most vividly revealed, however, by looking not only at what
the Alaska law prohibits but also at what it effectively
requires. The first of the three alternatives available for
vessel owners operating under a deballasting prohibition is
to retain all ballast water on board and, upon arrival at a
loading point, to discharge ballast into an onshore receiving
and treatment facility. However, when it adopted its current
design and equipment requirements and authorized the dis-
charge of clean ballast within 50 miles of land, the Coast
Guard expressly considered and rejected the alternative of
requiring shore-based treatment of all oil-bearing ballast. See
1975 Coast Guard EIS, at 47 (questioning the availability and
environmental effects of on-shore reception facilities). Thus,
the continued enforcement of segregated ballast and/or crude
oil washing requirements is predicated upon the judgment
that mandatory recourse to shore-side facilities for all oily
mixtures is not ordinarily preferable to other approaches to
the deballasting problem. This is evident from § 5(7)(N) of
the PTSA, which authorizes the Coast Guard to waive these
requirements on a case-by-case basis if it determines that
shore-based reception facilities “are the preferred method of
handling ballast and that adequate facilities are readily avail-
able.” 46 U.S.C.A. § 3709 (West Supp. 1983). Congress has
thus expressly committed the responsibility for assessing
whether to regulate the discharge of ballast from cargo tanks,
or whether instead to permit the use of shore-based facilities,
to the considered discretion of the Coast Guard. It is flatly
inconsistent with this congressional scheme to permit a coastal
= =
state to supplant the Coast Guard’s judgment in determining
when shore-side facilities are a preferable method of dealing
with ballast-related pollution.”®
Moreover, permitting states to take the narrow view in a
misguided effort to maximize the protection of their coastal
waters (by imposing a universal onshore facility requirement)
poses a threat to the environmental integrity of the high seas.
The Coast Guard has determined that shore-based facilities
are most suitable for processing dirty ballast, tank washings
and other oily mixtures having an oil content substantially
greater than that found in clean ballast. See U.S. Coast Guard,
Proposed Rules On Vessels and Oil Transfer Facilities, 42
Fed. Reg. 32670, 32671 (1977). To the extent that these
facilities are pressed into service to treat clean ballast, they
will be less available for processing more hazardous oily
mixtures; and in the absence of adequate shore-based treat-
ment capacity, additional oily ballast will likely end up being
discharged on the high seas. Jd. While Alaska may be willing
to accept this trade-off, the protection of the marine environ-
ment from deballasting both along the coast and outside of
the territorial waters is the responsibility of the Coast Guard.
To the extent that the high seas should be compromised for
the benefit of the coastal waters, clearly it is the Coast Guard
18Further, across-the-board state requirements for the use of shore-
based facilities present the real possibility of conflicting state and federal
judgments. For example, under the scheme established by the Coast
Guard in 33 C.F.R. Part 157, prior to issuing a design and equipment
exemption, the Coast Guard must be satisfied that the reception facility
is “adequate and will remain readily available;” “that the reception
facility will discharge a high quality effluent;” and that “the reception
facilities handling exempted vessels continue to meet the needs of the
other vessels using them, without causing undue delay [six hours or
more] to those vessels.” U.S. Coast Guard, Proposed Regulations Ex-
empting Vessels from SBT, CBT and COW Requirements, 45 Fed. Reg.
34306, 34307-08 (1980); see 33 C.F.R. § 157 Subpart F (1983).
Enforcement of a state deballasting prohibition such as Alaska’s would
permit a state to override the Coast Guard’s judgment even in situations
where, in the Coast Guard’s view, consideration of these relevant factors
affirmatively militates against the use of shore-side facilities.
niin
and not each of the coastal states that should make this
judgment.”
Alternatively, a state deballasting prohibition can be viewed
as a requirement that only vessels having segregated ballast
capacity be allowed to operate within the state’s waters. As
such, it is no more compatible with the Coast Guard’s respon-
sibilities under the PWSA. In the first place, as the Supreme
Court held in Ray, the establishment of design standards is
the exclusive responsibility of the Coast Guard. And as noted
before, in discharging this responsibility, the Coast Guard
has determined that certain classes of vessels can operate
without segregated ballast capacity with no significant risk
to the marine environment — principally new and existing
product carriers of less than 30,000 DWT and 40,000 DWT
respectively, existing crude oil tankers of less than 70,000
DWT that are equipped with crude oil washing systems, and
all tankers of less than 20,000 DWT.
The unacceptability of permitting a state such as Alaska
to override these federal judgments and in effect to promote
the use of segregated ballast becomes most evident when
existing crude oil carriers are considered. In affording own-
ers of such tankers the option of installing either segregated
ballast or crude oil washing systems, to a large extent the
Coast Guard created an incentive for the use of crude oil
washing, which it determined would more significantly con-
tribute to the protection of the marine environment.” As it
explained in its 1979 Coast Guard EIS:
19The use of shore-side treatment facilities is = the nme: soe
cure-all that the court of appeals seemed to think. a representative
environmental groups noted during the Coast Guard’s 1975 rulemaking:
“The creation of shore-side reception facilities may merely transfer
marine pollution problems to the shore and, in fact, . . . concentrations
of oil pollution in a specific shore-side location may be more harmful
environmentally than regulated discharges at sea. Further, their creation
may pose substantial land use problems and have serious secondary
impacts in the areas in which they are located.” 1975 Coast Guard EIS,
at 150 (comments of the Center for Law and Social Policy).
°In addition to more thoroughly scouring a cargo compartment, see
note 12, supra, COW permits a vessel more effectively to employ the
= =
“(Although t]he SBT option would be more effective
than COW on oil outflows as a result of ballasting opera-
tions, ... SBT provides almost no help for other opera-
tions such as tank cleaning or sludge removal prior to
shipyard operations. Looking at the vessel population
affected by the proposed action, it is estimated that dele-
tion of the COW option would cause an additional oil
outflow of 11,600 metric tons/year.” 1979 Coast Guard
EIS, at 55-56.
The only remaining alternative for complying with a debal-
lasting prohibition is the replacement of the tank vessel with
tank barges, which need not deballast from cargo tanks. This
is another policy issue beyond the competence of the states.
Within some quarters of the maritime industry, the use of
barges in lieu of tankers is seriously questioned as a preferred
method of protecting the marine environment. In rough seas
such as those frequently encountered off the Alaska coast,
barges are more prone to loss and resultant catastrophic
pollution. See 1979 Coast Guard Rules, at 66506. While
Alaska’s officials may be willing to dismiss this concern, bal-
ancing these types of competing interests must be the exclu-
sive responsibility of the Coast Guard, not of each of the
coastal states.
“load on top” (“LOT”) method of tank cleaning, which significantly
reduces oil inputs on the high seas. Ordinarily when tanks are washed
with a water medium, the tank flushings are discharged as dirty ballast
beyond fifty miles of land, and a new load of ballast taken on board
which can be discharged in port as clean ballast. When used in conjunc-
tion with COW, LOT involves pumping the water used to rinse crude-oil
washed tanks into a holding tank, where the oil-water residue is allowed
to decant. Water is then pumped overboard from the bottom of the
tank until the oil-water interface is reached. The oil remaining in the
holding tank is then combined with the next cargo (hence, load on top)
or combined with other slops for eventual discharge into a shore-based
reception facility. According to Coast Guard estimates, COW has the
potential of eliminating 440,000 metric tons per year of operational
outflows by reducing dirty ballast discharges as well as tank cleaning
mputs. See 1979 Coast Guard EIS, at 46,
—%6—
B. International Treaty-Making. Enforcement of state
deballasting prohibitions such as Alaska’s is also inimical to
an express congressional goal of the PWSA/PTSA and a
cornerstone of the Coast Guard’s program for the regulation
of deballasting: promotion of international solutions to the
problem of ballast-related pollution.” It is no accident
that federal regulations to control pollution resulting from
ballasting and deballasting largely track standards adopted
by the international community. The rules adopted by the
Coast Guard in 1975 respecting segregated ballast for new
tankers and the controlled discharge of ballast from cargo
tanks of existing vessels were purposely extracted from the
results of the International Conference on Marine Pollution,
convened during October 1973 under the auspices of the Inter-
Governmental Maritime Consultative Organization (“IMCO”)
(hereafter “1973 Marine Pollution Convention”). See 1975
Domestic Trade Rules, at 48280.77 The Coast Guard followed
the same course when in 1976 it extended the 1975 rules to
foreign ships entering U.S. navigable waters and U.S. ships
engaged in foreign trade. See U.S. Coast Guard, Final En-
21In its consideration of the PWSA, Congress recognized the desir-
ability of promoting international agreement respecting vessel operations
as well as design and construction standards. See S. Rep. No. 92-724,
92d ., 2d Sess. 23 (1972), quoted in Ray, 435 U.S. at 166 n. 16.
See also A §5(1)(F), 46 U.S.C. § 391a(1)(F) (Supp. ITI 1979).
Similarly, the Coast Guard has repeatedly underscored the importance
of ——— international agreement on the subject of deballasting
controls:
“Because of tanker ownership and trade patterns and the inter-
national nature of world shipping, international control of oil inputs
from tank cleaning and ballasting of tankers is absolutely essential.”
1975 Coast Guard EIS, at 61 (emphasis in original).
22The Coast Guard explained:
“Ocean winds and currents do not observe national boundaries.
Many of the ocean areas of ow productivity of sea life lie in
international waters beyond jurisdiction of any nation. World
shipping and trade in petroleum are international in scope, with
ane small portion of the U.S. supply < sen being trans-
ported in ships of American registry. Therefore, ship source pollu-
tion problems are best attacked in an international context with
unilateral action reserved for those circumstances when interna-
tional solutions are impossible or inappropriate.” 1975 Domestic
Trade Rules, at 48280.
—27—
vironmental Impact Statement, Regulations for U.S. Tank
Vessels Carrying Owl In Foreign Trade and Foreign Tank
Vessels that Enter the Navigable Waters of the Umted States
3 (October 1976). And its more stringent pollution control
standards promulgated in 1979 were drafted intentionally to
parallel the rules adopted by IMCO’s February 1978 Inter-
national Conference on Tanker Safety and Pollution Preven-
tion (“TSPP”) (hereafter the “1978 MARPOL Protocol”).
See 1979 Coast Guard Rules, at 66502.
Despite this pattern of federal conformity with rules
adopted by the international community, the court below con-
cluded that unilateral departure by the coastal states respect-
ing ballast discharge limitations would not jeopardize U.S.
efforts to promote multinational agreement. It reasoned that,
unlike vessel design standards, operating discharge limita-
tions can vary from port to port without imperiling the ability
of any nation’s vessels to enter and operate within United
States waters.”
Even to the extent the court of appeals’ observation is true,
a proliferation of state discharge standards different from
those adopted by the United States and the international
community would most certainly undermine U.S. efforts to
promote multinational agreement. The Coast Guard ex-
pressly recognized this when during its 1975 rulemaking,
which concerned only U.S. carriers engaged in the domestic
trade, it acknowledged a need to conform its regulations to
international standards. In response to criticisms that the
*3Also in support of its conclusion, the court adverted to excerpts of
the 1973 House debate concerning legislation to ratify the 1969 Amend-
ments to the International Convention for Prevention of Pollution of the
Sea by Oil, 1954 (App. A, infra, at 21a-23a). During this debate, one
member of the House expressed the view that implementation of the
treaty would not preclude contemporaneous regulation within the ter-
ritorial sea under the Clean Water Act. These statements, however,
hardly evidence a congressional intent to authorize the various coastal
States to dictate unilaterally a U.S. departure from the international
norm. Rather, they appear only to be a reference to provisions of the
1969 Amendments authorizing signatory nations to impose more string-
ent discharge limitations within their territorial seas.
—28—
world community could not conceivably object to more strin-
gent standards applicable only to U.S. vessels serving U.S.
ports, the Coast Guard wrote:
“The Coast Guard believes U.S. coasts and waters can-
not be adequately protected from oil pollution from tank
vessels unless international agreement on methods of lim-
iting oil inputs can be reached. Consistent with . . . Con-
gressional direction ..., this agency fully recognizes that
the condition of this country’s coasts and waters is direct-
ly linked to the condition of the rest of the world’s oceans.
The world’s oceans will not be adequately protected if
each nation adopts a ‘go-its-own-way’ approach.” 1975
Coast Guard EIS, at 179.
The Coast Guard more explicitly voiced concerns over the
international ramifications of disparate pollution prevention
regulation during its consideration of the 1979 rules. Noting
that its proposed regulations were intended to implement the
1978 MARPOL Protocol, the Coast Guard stated: “If the U.S.
were to enact regulations that go beyond or are not in agree-
ment with the results of the TSPP conference, it is anticipated
that there would be international reactions that could be harm-
ful to the interests of the United States.” 1979 Coast Guard
EIS, at 71.**
In short, given that the Coast Guard’s regulatory efforts
have been guided in large measure by the objective of achiev-
ing international uniformity respecting deballasting controls,
there simply is no room for states such as Alaska to dictate
unilaterally a U.S. departure from the international norm. To
4Specifically, the Coast Guard noted the likelihood: of jeopardizing
the ratification of MARPOL and other existing agreements; of inducing
“other countries to develop their own national standards which would
be aimed at their own interest [and which] could have a serious effect on
the free movement of vessels from one country to another;” of negating
important innovations in international maritime law; of “weaken[ing]
IMCO as a creditable international institution {and} weaken{ing] the
United States’ leadership role in . . . ongoing projects at IMCO;” and
of “be[ing] seen as a breach of good faith [which] is likely to affect other
negotiations on a wide variety of issues in which the U.S. has strong
interests.” 1979 Coast Guard EIS, at 71-74.
—29__
permit them to do so would undoubtedly frustrate future U.S.
efforts to encourage international acceptance of more strin-
gent deballasting controls; for the United States would be
powerless to assure othe¥ maritime nations that, when calling
upon U.S. ports, their vessels would not be subject to even
more rigorous limitations than foreign countries impose on
U.S. vessels calling at their ports.
Of greater immediate concern, a proliferation of state
deballasting prohibitions threatens to render the United
States in breach of its obligations to the international com-
munity under the 1978 MARPOL Protocol. | Under the Pro-
tocol, which prohibits vessels from discharging excessive
quantities of dirty ballast and oily tank washings on the high
seas, signatory nations are required to provide adequate
shoreside reception facilities for such wastes but not fog clean
ballast. See U.S. Coast Guard, Advance Notice of Proposed
Rulemaking Concerning Waste Reception Facilities, 48 Fed.
Reg. 12395, 12397 (1983). Congress ratified the Protocol only
after receiving assurances from the Coast Guard and others
“that providing for reception facilities is clearly a man-
ageable problem, both economically and technically.” H. Rep.
No. 96-1224, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.
Code Cong. & Ad. News 4849, 4856. Pursuant to the Protocol,
Congress passed implementing legislation (Act to Prevent
Pollution From Ships, Pub. L. 96-478, 94 Stat. 2297 (1980)
(codified at 33 U.S.C. §§ 1901-11 (Supp. V 1981))), which
among other things requires the Coast Guard to certify the
“adequacy of reception facilities of a port or terminal” (id.
33 U.S.C. § 1905(a)) and to “deny entry to a seagoing ship...
[to a] port or terminal . . . not hold[ing] a valid certificate”
(id. 33 U.S.C. § 1905(e)).
The premise of the 1978 MARPOL Protocol, Congress’
implementing legislation and the ongoing Coast Guard pro-
gram for certifying ports and terminals is that seagoing
vessels will discharge clean ballast at sea and that shore-based
facilities need be made available only to receive dirty ballast
and other hazardous wastes. State deballasting prohibitions,
—30—
however, will necessarily require that such facilities also
accept clean ballast, leaving them unavailable to receive
wastes which the Protocol prohibits from being discharged at
sea. Otherwise adequate facilities will readily become inade-
quate, requiring the Coast Guard to turn away both U.S. and
foreign flag vessels from ports and terminals that in all other
respects meet the international standards. In ratifying the
1978 MARPOL Protocol, Congress clearly did not anticipate
or sanction such state nullification of an international agree-
ment of which the United States was the principal sponsor and
architect.
CONCLUSION
For all of the foregoing reasons, a writ of certiorari should
issue to review the judgment and opinion of the Court of
Appeals for the Ninth Circuit.
Respectfully submitted,
RicHarp EF. SHerwoop
Cuar.zs P. Diamonp
Counsel for Petitioners
Of Counsel:
O’ME.tveny & Myers
Grecory P. GoECKNER
October 1984
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 81-3700, D.C. CV 77-195
Cueveon U.S.A, Inc., et al.,
Plaintiff-Appellees,
and
INTERCONTINENTAL BuLETANK Corporation, et al.,
Intervening Plaintiff s-Appellees,
vs.
Jay S. Hammonp, Governor of the State of Alaska, et al.,
Defendants-Appellants,
and
Corpova Distgict Fisnerrms Union, et al.,
Intervening Defendants-Appellants.
Appeal from the United States District Court
for the District of Alaska,
Hon. James M. Fitzgerald, District Judge, Presiding
Argued and Submitted: August 18, 1982
Opinion
Filed: February 3, 1984
Before: PREGERSON, ALARCON, and NELSON,
Circuit Judges
PREGERSON, Circuit Judge:
Alaska Statute § 46.03.750(e) (1976)! prohibits oil
tankers from discharging ballast into the territorial
1 Cargo in tank vessels ... engaged in the marine trans-
ftation of crude oil, refined petroleum products or their
Se aoeduen may not be placed in segregated ballast tanks,
nor may ballast be placed in cargo tanks of those tank vessels
having segregated ballast systems. However, the department
may by > permit the placing of ballast in the cargo
tanks of those vessels in emergency situations. All ballast
—2a—
waters of Alaska if that ballast has been stored in the
vessel’s oil cargo tanks. On appellees’ motion for partial
summary judgment, the district court invalidated this
Alaska statute. The court ruled that the statute is pre-
empted by Coast Guard regulations promulgated under
Title I of the Ports and Waterways Safety Act of 1972,
as amended by the Ports and Tanker Safety Act of 1978
(PWSA/PTSA), 46 U.S.C. §39la (Supp. V. 1981).
We reverse.
BACKGROUND
Unloaded oil tankers must take on seawater for ballast
to ensure proper submergence and vessel stabilty. Upon
arrival in port, the tankers must then discharge this bal-
last — iLe., “deballast” — before loading their cargo tanks
with oil. Ballast held in empty oil tanks will contain oil
residue. Both the state and federal governments have
been concerned about the danger to the marine environ-
ment caused by regular pumping of large quanities of
oil-polluted ballast into the ocean.
During the past three decades, the federal government
has sought to minimize environmental harm from oil
tankers through a series of increasingly stringent sta-
tutes and international conventions. These measures
cover many aspects of tanker safety, design, and traffic
control. They also encompass measures designed to pre-
vent accidental oil spills and authorize the Coast Guard
to regulate deballasting. Pursuant to this authority,
Coast Guard regulations prohibit deballasting from oil
cargo tanks within fifty miles of shore. 33 C.F.R.
§§ 157.29, 157.37(a)(1) (1982). An exception is made,
however, for the carefully monitored discharge of so-
in cargo tanks shall be processed by or in an onshore
ae ote aa andl one ase be decane
into the waters of the state.
Alaska Stat. § 46.03.750(¢) (1976) (emphasis added).
-——
called “clean” ballast. 33 C.F.R. § 157.43(a). “Clean”
ballast is that which “if discharged from a vessel that is
stationary into clean, calm water on a clear day would not
produce visible traces of oil on the surface of the water
or on adjoining shore lines... .” 33 C.F.R. § 157.03(e) (1).
This deballasting prohibition and exception promul-
gated by the Coast Guard were first conceived by an inter-
national body in 1969, as part of amendments made that
year to the 1954 International Convention for the Pre-
vention of Pollution of the Sea by Oil.? Two subsequent
major international agreements also considered tanker
pollution problems, including those caused by deballast-
ing. They are the 1973 International Convention for the
Prevention of Pollution from Ships (MARPOL) and the
Protocol of the 1978 International Conference on Tanker
Safety and Pollution Prevention (the MARPOL Proto-
col). See 33 U.S.C. $§ 1901-1911 (Supp. V 1981) (the
enabling legislation to the MARPOL Protocol). The
PWSA/PTSA and attendant Coast Guard regulations
— including the deballasting standard at issue in this
case — are based in large part upon MARPOL and the
MARPOL Protocol. Although MARPOL, the MARPOL
Protocol, and the PWSA/PTSA made significant ad-
vances in a number of other areas of pollution control, no
changes were made to the “clean” deballasting exception
originally adopted by the 1969 convention.*
de dks outta at mae a tense ae
to ing prohibition exception, as enacted
Oil Pollution Act Amendments of 1973 (OPAA), Pub. L. No.
93-119, 87 Stat. 424, codified at 33 U.S.C. §§ 1001-1016 (1976),
repealed and superseded by Act of Prevent Pollution from Ships,
Pub. L. No. 96-478, 94 Stat. 2297 (1980), codified at 33 U.S.C.
§§ 1901-1911 (Supp. V 1981).
imternational agreements discussed in our opini the
ing standard internationally in 1969 is not
spelled out in the PW: A. That statute does, however, give
—_4a—
The PWSA/PTSA and the international conventions
also addressed environmental problems posed by debal-
lasting by requiring increasingly stricter design fea-
tures and operational equipment on tankers. For ex-
ample, new tankers of a certain size are required to have
separate tanks to be used for ballast only and to have
crude oil washing systems to clean the cargo tanks.
46 U.S.C. § 391a(7); 33 C.F.B. §§ 157.09(2), 157.35. In
some respects, the PWSA/PTSA and Coast Guard regu-
lations are even more stringent than international stand-
ards. For example, the PWSA/PTSA imposes design
requirements on ships smaller than those covered by the
MARPOL Protocol. 46 U.S.C. § 391a(7)(A). The Coast
Guard, however, has never adopted a more restrictive
definition of “clean ballast” and continues to enforce the
same standards originally introduced by an international
convention in 1969.
Meanwhile, the Alaska legislature has determined that
even the small amount of oil contained in ballast meeting
the federal definition of “clean” causes harm to the
Alaskan marine environment. Thus, Alaska Stat.
§ 46.03.750(e) provides that absolutely no ballast water
that has been held in oil cargo tanks may be discharged
into the waters of the state. Absent an emergency, all
tankers must use on-shore facilities to process ballast
water containing oil.
DISCUSSION
In addressing the issue of federal preemption pre-
sented by this case, we divide our discussion into two
major inquiries.‘ In the absence of express preemption
3 Supp. V 1981), which has exercised
paged he . ry by adopung roa : ations, 33 C.F.R. §§ 157.03(e)(1),
157.29, 15 Faye & aon consistent with the 1969
international deballasting standards.
‘This two-tier inquiry was specifically meagan” pits gens
Court in Silkwood v. Kerr-McGee Corp., __. US. —— ——.,
am & GR aume cau SO
—§e—
language, we first address the threshold question whether
Congress in passing the PWSA/PTSA implicitly in-
tended to occupy the field of regulating pollution from
oil tankers within a state’s territorial waters. In deter-
mining Congressional intent, relevant subjects include
the Supreme Court’s decision in Ray v. Atlantic Richfield
Co., 435 U.S. 151 (1978); comprehensiveness of federal
regulations; consideration of state police power; con-
gressional intent that there be collaborative federal/
state efforts to protect the marine environment; need for
uniform regulation; history of regulation of the subject
matter; and available legislative history. After address-
ing the threshold question, we conclude that Congress in
passing the PWSA/PTSA did not intend to occupy the
field of regulating pollution from oil tankers within a
state’s territorial waters. Having concluded that Con-
gress did not intend to foreclose all state legislation in
this field, we then address the second major question
whether the Alaska statute is nonetheless void because
it actually conflicts with the PWSA/PTSA and imple.
menting Coast Guard regulations. On this critical issue,
after considering the need to find actual conflict, the
importance of reconciling the statutory schemes, and
the objectives of the federal and state legislation, we
conclude that no such conflict exists.
I. In Passing the PWSA/PTSA, Did Congress Implic-
itly Intend to Occupy the Field of Regulating Oil
Tanker Pollution Within a State’s Territorial
Waters?
The PWSA/PTSA contains no explicit expression of
congressional intent to preempt state law regulat'"<
oil tanker pollution within a state’s territorial waters.
Therefore, we must apply principles of preemption
analysis to the challenged state statutory provision to
determine implicit legislative intent. In this task, we
—fa—
assisted by the fact that ours is not the first case
gfcoe Pad preemptive effect of the PWSA/PTSA
on state law. In Ray v. Atlantic Richfield Co., 435 U.S.
151 (1978), the Supreme Court examined the effect of
the PWSA on a number of Washington statutes, in-
cluding provisions requiring certain design safety fea-
tures for tankers operating in Puget Sound. The Court
held that these “design requirements, standing alone,
are invalid in light of the PWSA and its regulatory
implementation.” 435 U.S. at 160-161. After examining
the PWSA’s comprehensive scheme for regulating
tankers, the Court found that Congress had entirely
occupied the field ss to tanker design requirements:
This statutory pattern shows that Congress, inso-
for as design characteristics are concerned, has
entrusted to the Secretary the duty of determining
which oil tankers are sufficiently safe to be allowed
to proceed in the navigable waters of the United
States. This indicates to us that Congress intended
uniform national standards for design and con-
struction of tankers that would foreclose the im-
position of different or more stringent state
requirements.
435 U.S. at 163 (emphasis added).
The Court’s finding of preemption is specifically
limited to the regulation of vessel “design characteris-
tics” and thus does not control the outcome of the present
case involving ocean pollutant discharges.’ As a matter
, the Court addressed a number of preemption issues
under tort Titles T and TI of the PWSA. As Ra —
focus of Title I, 33 U.S.C. §§ 1221-1227, is traff —
; Title II’s principal concern is tanker design ar —
tion.” 435 U.S. at 161. For purposes of our preemption _
Title II is the relevant portion of the PWSA/PTSA because. ©
Act’s deballasting provisions are found there. 46 U.S.C. § 39 a.
Ray found several parts of Washington State’s tanker provisions
preempted by the PWSA, but did so primarily in the area of tr c
— (a
of fact, the court specifically explained that tankers must
meet “otherwise valid state or federal rules or regula-
tions that do not constitute design or construction speci-
fications.” 435 U.S. at 168-69. Even though Ray does
not control the outcome of the present case, in addressing
the preemption issue, we nonetheless are guided by the
analytical approach followed in Ray. This approach
recognizes the significance of the subject matter regu-
lated. As we stressed in Morseburg v. Balyon, 621 F.2d
972 (9th Cir. 1980), the subject matter of regulation is
critical in preemption analysis. Therefore, in making
a preemption analysis, a court should examine those
concerns emphasized by Congress in enacting the sub-
ject legislation.
When tke emphasis is to protect and strengthen
national power, “occupation” and “conflict” are
easily found while not so easily found when the
emphasis is to promote federalism.
--- [T]he choice of emphasis is heavily influenced
by the area of the law in which the issue arises.
Thus, when the area concerns foreign affairs, as
in Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399,
85 L. Ed. 581 (1941), or labor relations, as in
San Diego Building Trades Council v. Garmon, 359
U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959), the
emphasis, not surprisingly, is on the national in-
terest, while when the area is protection of con-
sumers of commodities, as in Florida Lime ¢ Avo-
cado Growers, Inc. v. Paul, 373 U.S. 132, 83 S. Ct.
1210, 10 L. Ed. 2d 248 (1963), the emphasis under-
control governed by Title I. In reaching its ruling, the Court was
by Title I’s ess preemption language. 435 U.S. at
158-59, 171-75, The Court's sole preemption finding under
Title II was confined to design specifications. 435 U.S. at 168.
—_§e-—
standably is upon the state’s interest particularly
and the imperatives of federalism generally... .
621 F.2d at 976-77.
There are significant differences between the subject
matter regulated in Ray—vessel design features—and
that regulated here—ocean pollutant discharges. Ray
recognizes these differences. As to design features, the
Court noted that it “[had] previously observed that
ship design and construction standards are matters for
national attention.” 435 U.S. at 166 n.15. The subject
matter of environmental regulation, on the other hand,
has long been regarded by the Court as particularly
suited to local regulation.* Ray confirms this distinction:
“We do not question in the slightest the prior cases
holding that enrolled [those engaged in domestic or
coastwise trade; and registered [those engaged in
foreign trade] vessels must conform to ‘reasonable,
nondiscriminatory conservation and environmental pro-
tection measures’ ... imposed by a State.” 435 U.S. at
164 (emphasis added) (citations omitted).
As the foregoing discussion makes clear, the holding
of Ray, which involved a subject matter different from
that involved here, cannot be applied mechanically to
control the disposition of the present case. Thus, be-
cause Ray is not dispositive of the preemption issues
presented by this case, we must now specifically inquire,
Waterways Operators, Inc., 411 U.S. 325 (1973), the Court
indicated that it disfavored “allow{ing] federal admiralty jurisdic-
tion to swallow most of the power of the states over oil
411 US. at 328-29.
—_—
as a threshold matter, whether Congress, when it passed
the PWSA/PTSA, implicitly intended to occupy the
field of regulating the discharge of pollutants from
tankers within a state’s territorial waters.
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947),
cautions that “we start with the assumption that the
historic police powers of the States were not to be
superseded by [federal legislation] unless that was the
clear and manifest purpose of Congress.” 331 U.S. at
230 (emphasis added). We must also keep in mind that
“(t)he exercise of federal supremacy is not lightly to be
presumed.” Schwartz v. Texas, 344 U.S. 199, 203 (1952).
The justification for such caution is that Congress cer-
tainly has the power to “act so unequivocably as to
make it clear that it intends no regulation but its own.”
Rice, 331 U.S. at 236. Furthermore, if we are left with
a doubt as to congressional purpose, we should be slow
to find preemption, “[fJor the state is powerless to
remove the ill effects of our decision, while the national
government, which has the ultimate power, remains
free to remeve the burden.” Penn Dairies v. Milk Con-
trol Comm’n, 318 U.S. 261, 275 (1943). Quoting Rice,
331 U.S. at 230, the Court in Ray noted ways in which
congressional intent may manifest itself:
[The congressional] purpose may be evidenced in
several ways. The scheme of federal regulation
may be so pervasive as to make reasonable the
inference tht Congress left no room for the States
to supplement it.... Or the Act of Congress may
touch a field in which the federal interest is so
dominant that the federal system will be assumed
to preclude enforcement of state laws on the same
subject.
—10a—
435 U.S. at 157 (citations omitted).
In our quest to determine whether Congress implicitly
intended to occupy the field of regulating pollution
caused by tanker deballasting within a state’s territorial
waters, we first note that on this subject the legislative
history of the PWSA/PTSA is silent. But numerous oth-
er federal statutes provide convincing evidence of Con-
gress’ intent that, within three miles of shore, the pro-
tection of the marine environment should be a collabora-
tive federal/state effort rather than an exclusively federal
one. The PWSA/PTSA, which deals with a limited cate-
gory of vessels and pollutants, is of course only a small
part of the overali federal marine environmental protec-
tion scheme. The heart of the protection scheme is the
Clean Water Act, 33 U.S.C. $§ 1251-1376 (1976 & Supp.
V 1981) (CWA) (also known as the Federal Water Pollu-
tion Control Act or the FWPCA). Enacted contempo-
raneously with the PWSA, the CWA was designed to
regulate the discharge of any pollutant into the nation’s
navigable waters. Its goal is eventually to eliminate all
pollution. 33 U.S.C. § 1251(a)(1). The method of regu-
lation chosen was a permit system known as the National
Pollutant Discharge Elimination System (NPDES permit
system), 33 U.S.C. § 1342, to be governed by minimum
federal standards (effluent limitations), 33 U.S.C. 4 1311.
Under this system, the states maintain primary responsi-
bility for abating pollution in their jurisdictions; they
have authority to establish and administer their own per-
mit systems and to set standards stricter than the federal
ones. 33 U.S.C. §4 1342(b), 1370. The role of the states
is made clear by section 1251(b), which says: “It is the
policy of the Congress to recognize, preserve, and protect
the primary responsibilities and rights of States to pre-
vent, reduce, and eliminate pollution ....”
—lla—
In Pacific Legal Foundation v. Costle, 586 F.2d 650
(9th Cir. 1978), rev’d om other grounds, 445 U.S. 198
(1980), this court commented that “there is strong sup-
port in the legislative history [of the CWA] for a con-
clusion that Congress wanted to encourage a federal-state
partnership for the control of water pollution. Leg.
History at 1279 (comments of Senator Montoya).” 586
F.2d at 657. Thus in the CWA Congress has clearly ex-
pressed its intent to allow the states to take an active
role in abating water pollution.
This federai/state partnership in pollution regulation
applies ouly to waters within the states’ jurisdiction.
Generally, the federal marine environmental protection
scheme establishes a three-mile demarcation for states’
authority over ocean pollution, and for most purposes
—including pollution from vessels—the CWA applies
only to the ocean within three miles of shore. U.S.C.
§ 1362(7)-(8), (12).
Pollution beyond the three-mile limit is covered under
a number of statutes, the central one being the Marine
Protection, Research and Sanctuaries Act, 33 U.S.C.
§§ 1401-1444 (1976 & Supp. V 1981) (MPRSA). This law
also employs a permit system for ocean dumping but
expressly preempts state regulation of such dumping
while allowing states to propose criteria to the Environ-
mental Protection Agency (EPA). 33 U.S.C. §§1402(b)
1416(d).”
"Other federal statutes reguiating ocean activity similarly use the
three-mile demarcation. See, ¢.g., Deepwater Port Act, 33 U.S.C.
§§ 1501-1524 (1976 & Supe. V 1981) (Coast Guard in charge
of deepwater ports outside the three-mile limit, but states given
specific veto power over new iicenses); Fishery Conservation and
Management Act, 16 U.S.C. §§ 1801-1882 (1976 & Supp. V
1981) or concurrent state and federal jurisdiction within
three miles and exclusive federal jurisdiction beyond); Coastal
Zone Management Act, 16 U.S.C. §§ 1451-1464 (1976 & Supp. V
1981) (provides for coordination of federal activities with state
approved plans; state waters defined as territorial seas.) See also
—l2a—
The above authorities demonstrate a congressional
intent that there be joint federal/state regulation of
ocean waters within three miles of shore. Such joint
regulation undermines the argument that Congress in
enacting the PWSA/PTSA implicitly intended to occupy
the field of regulating tanker pollution in a state's terri-
‘torial waters.*
the Interior v. California, __. U.S. . : ;
See ee ae (territorial seas extend for three geogra-
hic mi? ward from coastline). a
Pe eAppellees argue against reference to the CWA in determining
intent under the PWSA/PTSA on the grounds that the CWA is a
aunts of past eee ility only peripherally related to debal-
lasting while the PWSA/PTSA is a more and more recent
permi on sought “7
detailed it process directed at the pollutants at
discharged. In any event, principles of construction ae a
more recent and ific statute to prevail over the earlier m
Son Ww. Alaska, 451 Us. 259 266 (1981); In re Pacific
att v. > ~~ ’ ;
Far East Line, te. 644 F.2d 1290, 1294 (9th Cir. 1981). -
Furthermore, the court must seek to harmonize two potentially
conflicting statutes: “We must read the statutes to give effect to
each if we can do so while preserving their sense and purpose.
Watt v. Alaska, 451 U.S. at 267. This principle has been — y
invoked in two of our decisions involving overlapping oe
statutes in the areas of environmental regulation and oa
of marine resources. In Get Oil Out! Inc. v. Exxon Corp.,
9th Cir. 1978), we said:
a ‘ our chlignien to so construe federal statutes so that
they are consistent with each other, as by this means con-
gressional intent can be given its fullest expression. [W]hen
two statutes are capable of co-existence, it is the duty of the
courts ... to regard each as effective.” as
Touche Ross & Co., 426 US. 148, 155, 96 S. Ct. 1989,
1993, 48 L. Ed. 2d 540 (1976), quoting Morton v. ——
417 U.S. 535, 551, 94S. Ct. 2474, 41 L. Ed. 2d ae Ly 2
586 F.2d at 729; see also State of California v. Watt, pp
1253, 1263 (9th Cir. ~ aoe d on Po ; =
the Interior v. ornia, _— U.S. _—, —— 9. Ct
secrete). Another decision presenting a question of ay
construction similar to the present case is United States v. Dunn,
5
:
E
z
—
Indeed, Congress has shown its high regard for the
states’ environmental concerns by providing that the
CWA, through the NPDES permit system, will enforce
state water quality standards stricter than the mini-
mums required hy the CWA. The CWA, 33 U.S.C.
§ 1311(b)(1)(C), requires that “there shall be achieved
(within the three-mile limit] ... any more stringent
limitation, including those necessary to meet water qual-
ity standards ... established pursuant to any state law
or regulation ....”
Under another provision of the CWA, 33 U.S.C.
§ 1342(a)(1), a NPDES permit cannot be issued unless
the requirements of section 1311 have been met. Further,
the regulations implementing section 1342 provide that
applicable state water quality standards shall be incor-
porated into the permit conditions along with other rele-
vant effluent limitations. 40 C.F.R. § 122.62; see also
33 U.S.C. § 1341(a) (1); 40 C.F.R. § 124.53(a), (e). Thus,
absent preemption by another federal statute, such as the
PWSA/PTSA, the Alaska statute at issue in this case
ae F.2d 1281 (10th Cir. 1976). There the court construed two
sentencing provisions, one incorporating state law as the
CWA does, and the other providing additional federal sentencing
authority. In harmonizing the provisions the court noted:
The problem is one of construing two statutes, neither
enacted in any obvious contemplation of the other but each
bearing upon the other when both are involved in the factual
situation presented. In such circumstances we should seek a
solution which avoids violence to the terms of either but
which brings both into correlation, since to construe either in
— from the other would thwart the intention of
on
gress.
545 F.2d at 1282.
In the present case, as our opinion demonstrates, the PWSA/
PTSA can coexist with the CWA, which adopts Alaska’s debal-
lasting statute through the NPDES permit system. Accordingly,
we need not turn to those principles of statutory construction
allowing one statute to supplant the other.
=v
is converted by the CWA into a federal standard which
the EPA is required to enforce.*
The CWA’s non-preemption of Alaska’s deballasting
prohibition and the CWA’s conversion of the prohibition
into a federal CWA standard cannot insulate that prohi-
bition against a challenge that it is preempted by the
PWSA/PTSA. Nonetheless, the status of such state law
under the CWA does provide convincing evidence of a
well-settled congressional policy to promote a state’s
more stringent regulation of the local marine environ-
ment. The Supreme Court in Ray found that the regula-
tion of the design or size of oil tankers was a subject
matter in which there is an “evident congressional inten-
tion to establish a uniform federal regime controlling
the design of oil tankers.” 435 U.S. at 165. In contrast,
*In dealing with the CWA the district court and the appellees
focused their attention on the oil spill provisions of the statute.
The CWA, however, regulates oil pollution under two separate
schemes. The first is found in 33 U.S.C. § 1321, a statute specifi-
cally aimed at oil spills and their clean-up. The second is the
NPDES permit system, 33 U.S.C. §§ 1311, 1342. The permit
system more clearly demonstrates Congress’ intent that there be
federal/ state collaboration in the regulation of pollutant discharges
within the territorial waters.
Although both the oil spill provisions and the permit provisions
of the CWA contain language explicitly stating that state laws are
not to be preempted, 33 U.S.C. §§ 1321(0)(2), 1370, as dis-
cussed in the text of our opinion, the permit system goes further
by providing that any permit granted for discharges within the
three-mile limit must incorporate more stringent state water
quality requirements.
Moreover, the general NPDES permit requirements apply in
addition to any provisions, such as section 1321, governing a
subject matter—oil discharges. See United States v.
Hamel, 551 F 2d 107, 109-12 (6th Cir. 1977) (general permit
provisions of section 1311 apply in addition to specific prohibi-
tions concerning oil discharges a in section 1321); cf.
Pacific Legal Foundation v. Quarles, F. Supp. 316 (C.D. Cal.
1977) ( permit provisions of section 1311 apply in addition
to ific provisions of section 1343 pertaining to ocean pollu-
tion), aff'd sub nom. Kilroy v. Quarles, 614 F.2d 225 (9th Cir.),
cert. denied, 449 U.S. 825 (1980).
—lSa—
our preceding discussion of the CWA demonstrates that
Congress has indicated emphatically that there is no
compelling need for uniformity in the regulation of pol-
lutant discharges—and that there is a positive value in
encouraging the development of local pollution control
standards stricter than the federal minimums."®
Ordinarily, courts seeking to determine implicit legislative
intent confine themselves to the language and legislative history of
the statute in question—here, the PWSA/PTSA. Authority exists,
however, for looking at the entire federal statutory scheme relative
to a particular subject matter, especially when that subject matter
is dealt with under a number of separate enactments, some of
which were enacted contemporaneously——as were the CWA and
the PWSA. For example, in Morton v. Mancari, 417 U.S. 535
(1974), the Supreme Court construed the Equal Employment
Opportunity Act and examined congressional intent regarding the
continuation of Indian hiring preferences in the Bureau of Indian
Affairs by reference to ey er laws dealing with the same sub-
ject matter, hen aidah Gunn couatiend bp Giese ctammes and
titles of the United States Code. Another example is Silkwood v.
Kerr-McGee Corp., _. U.S. ——, —— S. Ct. _— (1984) where
the Supreme Court looked to the legislative history and regula-
tions of the Price-Anderson Act to determine congressional pre-
emptive intent in the earlier enactment of the Atomic Energy Act.
Particularly where two federal statutes have overlapping areas
of regulation, as do the CWA and PWSA/PTSA, it is permissible
and helpful to examine the history and context under which they
were enacted. This history and context may include other statutes,
executive orders, hearings of legislative committees dealing with
the subject matters of regulation, and, as in this case, pertinent
international agreements and statutes adopting them. For other
examples of the use of such materials in construing ambiguous
statutes, see Silkwood, __. US. at ___, ___ S.. Ct. at ___; Waitt v.
Alaska, 451 U.S. at 270-73; Morton, 417 U.S. at 550-55; and
City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624,
644 (1973).
In Ray, 435 U.S. at 178 n.28, the Court rejected an argument
that the CWA demonstrates congressional intent for coexistent
regulation of tanker design. Unlike Ray, this case involves subject
Matter squarely within the ambit of the CWA and is therefore
clearly and properly distinguishable. The Ray footnote does not
control this case for the same reason that Ray’s holding does not
control this case—Ray is specifically and narrowly confined to a
different subject matter.
entities
Appellees contend that the comprehensiveness of the
PWSA/PTSA provides evidence of preemptive federal
intent. But comprehensiveness alone is not enough to
demonstrate a federal intent to occupy the entire field.
The CWA—which allows concurrent state regulation—
is as comprehensive in its regulation of pollution as the
PWSA/PTSA is in its regulation of -tankers.
As the Court stated in New York State Dep’t of Social
Servs. v. Dublino, 413 U.S. 405, 415 (1973) :
We reject ... the contention that preemption is to be
inferred merely from the comprehensive character
of the federal ... provisions .... The subjects of
modern social and regulatory legislation often by
their very nature require intricate and complex
responses from the Congress, but without Congress
necessarily intending its enactment as the exclusive
means of meeting the problem ....
As with the work incentive program considered in
Dublino, the prevention of harm to the marine environ-
ment from oil tanker operations is a complex subject
matter in which “a detailed statutory scheme was both
likely and appropriate, completely apart from any
questions of pre-emptive intent.” 413 U.S. at 415. Ap-
pellees stress that the legislative history of the PWSA/
PTSA is clear about the necessity for a “systems”
approach to tanker-caused oil pollution, based on a “mix
and match” method of balancing and choosing among
various regulatory options—some aimed at design, some
at traffic control, others at vessel operation. That legis-
lative history, however, may stand equally for the
proposition that the problem of tanker-caused pollution
is complex, must be approached from many angles, and
requires a diversity of solutions. S. Rep. No. 724, 92d
Cong., 2d Sess. 13-14, reprinted in [1972] U.S. Code
Cong. & Ad. News 2766, 2773-74. The complexity and
—17a—
comprehensiveness of federal marine environmental
regulation are particularly appropriate without regard
to the question of preemption because these regulations
must “be sufficiently comprehensive to authorize and
govern programs in States which had no ... require-
ments of their own as well as cooperatively in States
with such requirements.” Dublino, 413 U.S. at 415.
Appellees further argue that only “one single de-
cisionmaker” can perform the necessary balancing and
choosing in this “mix and match” system of regulation.
They rely on that portion of the PWSA/PTSA, 46
U.S.C. § 391a(1)(D), which directs the Coast Guard
to perform a cost-benefit analysis by applying “the best
available technology ... unless clearly shown to create
an undue economic impact which is not outweighed by
the benefits ....” The weighing and balancing required
in the CWA is, if anything, even more delicate and
complex than in the PWSA/PTSA." Yet, in the CWA
Congress determined that such decisionmaking could
co-exist with the opportunity for states to set stricter
standards.
While design standards need to be uniform nationwide
so that vessels do not confront conflicting requirements
in different ports and so that the Coast Guard can pro-
“Under the CWA, the EPA must balance costs and benefits,
with reference to the following factors set forth in 33 U.S.C.
§ 1314(b)(1)(B):
Factors relating to the assessment of best practicable con-
trol technology currently available to comply with . . . Section
1311 of this title [on effluent limitations] shall include con-
sideration of the total cost of application of technology in
relation to the effluent reduction benefits to be achieved from
such application, and shall also take into account the age
of equipment and facilities involved, the process employed, the
engineering aspects of the application of various types of
control techniques, process changes, non-water quality envi-
ronmental impact (including energy requirements), and such
other factors as the Administrator deems appropriate.
—18a—
mote international consensus on design standards, there
is no corresponding dominant national interest in uni-
formity in the area of coastal environmental regulation.”
Here, in fact, the local community is more likely compe-
tent than the federal government to tailor environmental ©
regulation to the ecological sensitivities of a particular
area.
In preemption analysis, we should also consider
whether the potential effect of the challenged state
statute on international matters gives rise to a pre-
emptive federal interest. In this case, the potential
effect of Alaska’s deballasting statute on international
trade is easily distinguished from the effect of the state
tanker design provisions invalidated in Ray. Although
national uniformity and international consensus are
critical concerns in the establishment of tanker design
standards, those concerns are not essential in the regu-
lation of pollutant discharges into coastal waters. Once
a ship is constructed, it cannot meet new or different
2Of course, as to environmental regulation of ocean waters,
the federal interest in uniformity is paramount. regulation in
most cases needs to be exclusive because the only hope of achieving
protection of the environment beyond our nation’s jurisdiction is
through international cooperation. These considerations do not,
however, apply to the waters of the territorial seas which lie within
three miles of shore and which ~an be subject to both federal and
state enforcement. The a factors here are analogous
to those considered in the first Supreme Court opinion on
preemption:
Now the power to regulate commerce embraces a vast
field, containmg not only many, but exceedingly various sub-
jects, quite unlike in their nature; some imperatively de-
manding a Si uniform rule, operating equally on the
commerce of the United States in every port; and some,
like the subject now in question, as imperatively demanding
that diversity, which alone can meet the local necessities of
navigation.
Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851).
quoted in City of Burbank v. Lockheed Air Terminal, Inc., 411
U.S. 624 at 625 (1973).
—19a—
design requirements in various ports. A ship’s discharge
of pollutants can, however, be varied according to en-
vironmental standards and conditions in different
jurisdictions. Hypothetically, state regulation regard-
ing the discharge of pollutants could possibly interfere
with the establishment of nationally uniform design
requirements. But, for the most part local environmental
regulations can co-exist—as they do here—with federal
regulations without impinging on the exclusively federal
concerns of vessel design and traffic safety."*
Consider, for example, the regulation of marine sanitation
devices and their discharges under CWA. Sewage from vessels
is one of two ific exemptions from the permit system of the
CWA. 33 US.C. § 1362(6). from vessels is exclusively
regulated under 33 U.S.C. § 1322. Under this section of the CWA,
the EPA, after consulting the Coast Guard, sets standards for the
ee or coe east, the Coast Guaed en
promulgates consistent regulations coverin ign, construction,
and operation of such devices. 33 U.S.C. § 1322(b)(1). The
Coast Guard has the exclusive authority to regulate these devices,
but states are free to determine that their waters require greater
protection and may prohibit discharge of any sewage from vessels
if the EPA determines that adequate facilities are reasonably
available for removal and treatment. 33 U.S.C. § 1322(f)(3).
rr arr Comaae f sonege hom vessels as
by section 1322 has been applied to foreign vessels without
adverse results on international trade and has held not to
intrude on the constitutional ae Mig | powers of the United
States. Lake Carriers’ Ass'n v. Kelley, $27 F. Supp. 1114, 1130-31
(E.D. Mich. 1981), aff'd, 456 U.S. 985 (1982).
We note in passing that in section 1322 Congress carved out an
area of regulation otherwise covered by the NPDES permit
system, including applicable state standards, and placed part of it
within the exclusive domain of the Coast Guard. The fact that
Congress did not do the same for the discharge of pollutants from
tankers demonstrates its intent to regulate deballasting under both
the effluent limitations and permit sections of the CWA (and
the state standards incorporated therein) as well as under the
PWSA/PTSA.
We repeat that we are not holding that state standards under
the CWA could never impermissibly interfere with the Coast
Guard’s exclusive domain. Even the language of the CWA itself
recognizes this possibility by requiring NPDES permits to incor-
—20a—
Moreover, the PWSA/PTSA does not mandate strict
international uniformity. Although the legislative his-
tory of the PWSA/PTSA refers to congressional intent
to abide by international agreements regarding the
regulation of tankers, S. Rep. No. 92, 92d Cong., 2d
Sess. 23, reprinted im [1972] U.S. Code Cong. & Ad.
News 272-89, the statute nonetheless gives the Coast
Guard s: :ific authority to establish stricter standards
than those set by international agreements, 46 U.S.C.
§ 391a(6). This indicates Congress’ view that the inter-
national agreements set only minimum standards, that
strict international uniformity was unnecessary, and
that standards stricter than the international mini-
mums could be desirable in waters subject to federal
jurisdiction.
More important to the question at hand, the following
legislative history of the Oil Pollution Act Amendments
of 1973, Pub. L. No. 93-119, 87 Stat. 424 (OPAA),"*
approving the 1969 amendments to the 1954 Interna-
tional Convention for Prevention of Pollution of the
a Se ee Se gen ey hp FH
ran: crag ore stowage of pollutants.”
33 U.S.C. § 1342(g) _— po Fenty picture, however,
is one of cooperation and collaboration
between the os cok is cas ade cane
latory authorities under the CWA. See, e.g., 33 U.S.C. § 1321(b)
(204). (0) (3), (b)(6)(A) & (b)(6)(B) (allocating division
regulatory bodies specified in the CWA
sidan an laueiien edeiane tan a ae.
14Although enacted by the effectiveness of the Oil
Pollution Act Amendments of 1973 (OPAA), Pub. L. No. 93-119,
87 Stat. 424, codified at 33 U.S.C. §§ 1001-1016 (1976),
repealed and superseded by Act to Prevent Pollution from Ships,
191i (Supp. V 1981) (enabling ‘legslation of the MARPOL
1911 ( 1981) (
Protocol of 1978), was contingent on ratification of amendments
to the international convention by a certain number of nations.
The condition was never fulfilled. The substance of the OPAA.
however, has been incorporated into the MARPOL Protocol of
1978, which the United States ratified by the Act to Prevent
—2la—
Sea by Oil, expressly refers to the possibility of stricter
standards to be set under the CWA. The OPAA apn-
nounced standards for deballasting near shore identical
to the standards subsequently promulgated by the Coast
Guard in 1975—the very same standards at issue here.
Representative Clausen and Representative Dingell,
floor manager of the legislation, specifically discussed
the applicability of stricter state standards within the
three-mile limit of the territorial seas and the exclusivity
of Coast Guard regulation beyond three miles.
MR. CLAUSEN. Mr. Speaker, the next question
will relate to enforcement proceedings beyond the
territorial sea.
Will this come under the Environmental Pro-
tection Act?
MR. DINGELL. No, this will be administered
under the statute. We are considering that it will
be administered by the Coast Guard, and it will be
handled in that fashion.
MR. CLAUSEN. Well, what about on the Con-
tinental Shelf itself?
MR. DINGELL. This is within the territorial sea.
The Federal Water Pollution Act [CWA] will apply,
and they will apply the more stringent standards, so
that we could well have application ae to vessels,
tank and dry cargo and other vessels, both under
international agreement and also under this particu-
lar statute.
Pollution from Ships, Pub. L. No. 96-478, 94 Stat. 2297 (1980),
codified at 33 U.S.C. §§ 1901-1911 ( . V 1981) (the
MARPOL Protocol of 1978). The L Protocol will not
become effective until the requisite number of signatory nations
have ratified the protocol.
— ,
MR. CLAUSEN. So for the territorial sea the En-
vironmental Protection Act would control it pretty
much?
MR. DINGELL. The Federal Water Pollution Con-
trol Act [CWA], as amended would apply.
119 Cong. Rec. 14,588 (1973).
And again in the same debate Representative Clausen
stated that the CWA is to apply in conjunction with the
federal adoption of international standards:
Last year, we went as far as we could go by in-
cluding in the Water Pollution Control Act [CWA]
stringent controls prohibiting the discharge of oil
in our territorial waters.
This bill complements our efforts to control oil
pollution within the 3-mile territorial sea by imple-
menting the International Convention for the Pre-
vention of the Pollution of the Sea by Oil.
Through the adoption of this measure we will be
prohibiting the discharge of any oil up to 50 miles at
sea and more stringently regulating any discharges
beyond that distance.
Mr. Speaker, this legislation continues the long
string of efforts we have made to make certain our
water pollution control programs are both continu-
ously updated and responsive to changing needs. In
conjunction with the Water Pollution Control Act
[CWA] it will help reduce and cantrol pollution and
I urge the House to give it overwhelming support.
—23e—
119 Cong. Rec. 14,590 (1973)."* Because the CWA incor-
porates stricter state standards, this legislative history
demonstrates a congressional intent that state regulation
of discharges proceed in conjunction with Coast Guard
regulation of deballasting within the territorial seas. As
the PWSA/PTSA covers subject matter parallel to that
covered by the international agreement and amendments
that were the focus of the OPAA, the legislative intent
expressed by Representatives Clausen and Dingell should
be equally applicable to the PWSA/PTSA.” Thus, we
conclude Congress intended that stricter state standards
for oil pollution within three miles of shore be enforced
in addition to Coast Guard regulations issued under the
PWSA/PTSA.
The above discussion shows that, unlike tanker design
features controlled by Ray, there is no need for strict
uniformity in regulating pollutant discharges into the
territorial waters. To the contrary, Congress has repeat-
edly recognized the need for collaborative federal/state
regulation of the marine environment within three miles
of shore. Thus, we find that the federal marine environ-
18See also The 1973 Inter-Governmental Maritime Consultative
Organization Convention on Marine Pollution from Ships
[MARPOL)]: Hearings Before the Senate Committee on Com-
merce, 93d Cong., 1st Sess. 9 (1973) (comments of former EPA
Administrator Russell Train ):
(With respect to discharges, the United States believes it
is important because of its own high standards to maintain
the freedom of action to establish higher standards under the
Federal Water Pollution Control Act [CWA] if it desires.
This provides a clear statement that the EPA recognizes, even
after passage of the PWSA, that oil pollution from tankers is sub-
ject to regulation under the CWA.
*The legislative history of the PWSA/PTSA establishes that it
is based in large part on MARPOL and the MARPOL Protocol
(which incorporated the deballasting standards of the OPAA), and
is intended to be construed consistently with them, except where
expressly stated to the contrary. H.R. Rep. No. 1384, 95th Cong.,
— 21, reprinted in [197%] U.S. Cong. & Ad. News 3270,
—24a—
mental protection scheme as a whole does not prohibit
stricter state standards regulating water pollution in
a state’s territorial waters, but in fact, through the CWA,
would enforce those standards. Moreover, nothing inher-
ent in the comprehensiveness or complexity of the regu-
lations under the PWSA/PTSA implies a preemptive
intent on the part of Congress as to the regulation of
' deballasting within three miles of shore. Finally, the
legislative history of the OPAA, the statute which em-
bodied congressional approval of the 1969 amendments
to the 1954 International Convention for Prevention of
Pollution of the Sea by Oil, contains express floor debate
remarks that stricter standards under the CWA are to
apply within three miles of shore. We therefore hold
that, in enacting the PWSA/PTSA, Congress did not
implicitly intend to occupy the field of regulating dis-
charges of pollutants from tankers into a state’s terri-
torial waters.
Ul. Is the Alaska Statute Void Because it /ctually Con-
ficts with the PWSA/PTSA and mplementing
Coast Guard Regulations?
Having found that Congress did not intend complete
occupation of the field of regulating pollution from oil
tankers within a state’s territorial waters, we now address
the question whether Alaska Stat. § 46.03.750(e) is void
because it actually conflicts with the PWSA/PTSA and
implementing Coast Guard regulations.
Even if Congress has not completely foreclosed
state legislation in a particular area, a state statute
is void to the extent that it actually confitcts with a
valid federal statute. A conflict will be found “where
compliance with both federal and state regulations is
a physical impossibility ...,” Florida Lime ¢ Avo-
cado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83
S. Ct. 1210, 1217, 10 L. Ed. 2d 248 (1963), or where
—
the state ‘law stands as an obstacle to the accomplish-
ment and execution of the full purposes and objec-
tives of Congress.” Hines v. Davidowitz, 312 U.S. 52,
67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941)....
Ray, 435 U.S. at 158 (emphasis added) (other citations
omitted). The question is whether there is an “irrecon-
cilable conflict between the federal and state standards.”
Silkwood v. Kerr-McGee Corp., __ U.S. ' ;
S. Ct. __, —— (1984) Merrill. Lynch, Pierce, Fenner ¢
Smith v. Ware, 414 U.S. 117, 126 (1973), cautions us that
in conducting our inquiry we must be “mindful ... of the
purposes behind” the potentially conflicting statutes:
[W]e may not overlook the body of law relating to
the sensitive interrelationship between statutes
adopted by the separate, yet coordinate, federal and
state sovereignties. Our analysis is also to be tem-
pered by the conviction that the proper approach is
to reconcile “the operation of both statutory schemes
with one another rather than holding one completely
ousted.”
414 U.S. at 127, quoting Silver v. New York Stock Ex-
change, 373 U.S. 341, 357 (1963). Moreover, state law
should be preempted “‘only to the extent necessary to
protect the achievement of the aims of the [federal act
in question].’” Merrill, Lynch, 414 U.S. at 127, quoting
Silver, 373 U.S. at 361.
As required by Kewanee Oil Co. v. Bicron Corp., 416
U.S. 470 (1974), we first proceed to determine whether
the legislative objectives of the PWSA/PTSA clash with
those of Alaska’s deballasting statute adopted by the
CWA through the NPDES permit system. The purpose
of both the Alaska deballasting prohibition and the CWA
is the same: to eliminate damage to the marine environ-
ment from the discharge of pollutants into the nation’s
waters. Several places in the legislative history of the
—
CWA refer to a “no discharge policy” or “zero-discharge
goal.” S. Rep. No. 414, 92d Cong., 2d Sess. (1971),
reprinted in [1972] Code Cong. & Ad. News 3668, 3676;
S. Conf. Rep. No. 1236, 92d Cong. 2d Sess. (1972),
reprinted in [1972] Code Cong. & Ad. News 3668, 3777.
The preamble of the CWA establishes that “it is the
national goal that the discharge of pollutants into the
navigable waters be eliminated by 1985.” 33 U.S.C.
§ 1251(a)(1). As the House Report stated in discussing
the effluent limitations section: “Any discharge of a pol-
lutant without a permit ... is unlawful.” H.R. Rep. No.
911, 92d Cong., 2d Sess. 100 (1972), quoted in Natural
Resources Defense Council, Inc. v. Costle, 568 F.2d 1369,
1374 (D.C. Cir. 1977). Similarly, the Senate Report
stated 33 U.S.C. § 1311
yas establishes that the discharge of pollutants
is unlawful. Unlike its predecessor program which
permitted the discharge of certain amounts of pol-
lutants ... this legislation [CWA] would clearly
establish that no one has the right to pollute—that
pollution cuntinues because of technological limits,
not because of any inherent rights to use the nation’s
weterways for the purpose of disposing of wastes.
S. Rep. No. 414, 92d Cong., 2d Sess. 42 (1971), reprinted
in [1972] U.S. Code Cong. & Ad. News 3678, 3777. quoted
im Costle, 568 F.2d at 1374-75.
Alaska’s and the CW.A’s goal of protecting the ecologi-
cal -integrity of the territorial waters is entirely com-
patible with the purposes of the PWSA/PTSA as they
relate to protection of the marine environment from the
discharge of pollutants. Insofar as it assigns the Coast
Guard the duty to regulate deballasting, the PWSA
sought “to reduce damage to the marino environment by
normal vessel operations such as ballasting and debal-
lasting... .” 46 U.S.C. § 391a(7) (1976); see 46 U.S.C.
—= 97] a
§ 391a(6)(A)(vii) (Supp. V 1981). As stated in the
Senate Report on the PWSA, that Act was
urgently needed legislation to cope with the in-
creasing safety hazards of maritime transportation
and with poliution resulting from operation and
casualties of vessels carrying oil or other hazardous
substances in bulk. Comprehensive legislation is
needed to protect our coastal waters and resources
including fish, shellfish, wildlife, marine and coastal
Eco systems [sic] and recreational and scenic values.
What is most urgently needed is legislation that
will put the emphasis on prevention, and that is the
thrust of H.R. 8140 [PWSA], as amended.
S. Rep. No. 724, 92d Cong., 2d Sess., reprinted in [1972]
U.S. Code Cong. & Ad. News 2768-69 (emphasis in origi-
nal). After the PWSA was passed, congressional dis-
satisfaction with measures to protect the environment
continued, as evidenced in the House Report on the
the PTSA, quoted in part as follows:
Since the 1972 amendment of the Tank Vessel Act,
the Coast Guard has proceeded rather slowly with
the implementation of the revised provisions. On
occasion, proposed regulations have been criticized
as weak and ineffective, and the Coast Guard’s reluc-
tance to proceed expeditiously has resulted, in at
least one occasion, in a law suit by environmental
interests to mandate more rapid implementation by
the Coast Guard.
H.R. Rep. No. 1384— Part I, 95th Cong., 2d Sess. 5,
reprinted in [1978] U.S. Code Cong. & Ad. News 3270,
3273.
To establish firmer controls to protect the environ-
ment, the PTSA was passed ia 1978 with this strong
policy statement:
—_.
(A) that the carriage by vessels of certain cargoes
in bulk or in residue creates substantial hazards to
life, property, the navigable waters of the United
States (including the quality thereof) and the re-
sources contained therein and to the adjoining land,
including but not limited to fish, shellfish, and
wildlife, marine and coastal ecosystems, and recrea-
tional and scenic values;
(B) that existing standards for the design, con-
struction, alteration, repair, maintenance, operation,
equipping, personnel qualification, and manning of
all such vessels which use any port or place subject
to the jurisdiction of the United States or which
operate in the navigable waters of the United States
must be more stringent and comprehensive for the
mitigation of the hazards to life, property, and the
marine environment.
46 U.S.C. § 391a(1)(A)-(B) (emphasis added). Thus,
the history of congressional action with regard to tankers
demonstrates increasingly stringent protection of the
marine environment.'’ Where both the legislative schemes
of the PWSA/PTSA and the Alaska deballasting regu-
lation as adopted by the CWA “reflect a policy choice
favoring” the same goal — here the elimination of harm-
ful ocean pollution — the court should be reluctant to
infer preemption. “[I]t would be particularly inappro-
priate ... because the basic purposes of the state statute
and the [federal] Act are similar.” Exxon Corp. v. Gover-
nor of Maryland, 437 U.S. 117, 132 (1978) ; accord William
"Certainly the Alaska deballasting prohibition and the CWA
= a more absolute prohibition on pollutants than the PWSA/
But we must bear in mind that the Alaska prohibition and
CWA are limited to the narrow three-mile band of coastal waters,
and that the PWSA/PTSA must also deal with the high seas where
the United States acts as a party to international agreements, rather
than as a sovereign setting its own standards. See supra note 12.
== $e,
Inglis & Sons Baking Co. v. ITT Continental Baking Co.,
668 F.2d 1014, 1050 n.62 (9th Cir. 1981)."
“Appellees argue at length that the Alaska deballasting law has
same p as the PWSA/PTSA and that such coincidence
leads inevitably to the conclusion of preemption. Similarity of
purpose is listed as a test of preemption in Rice v. Santa Fe Ele-
vator Corp., 331 U.S. 218, 230 (1947). Coincidence of purpose,
however, does not necessarily determine the preemption issue. As
the Court stated in Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132 (1963):
{T]t is suggested that the coexistence of federal and state regu-
latory legislation should depend upon whether the purposes
of the two laws are parallel or divergent. This Court has, on
the one hand, sustained state statutes having objectives virtu-
ally identical to those of federal regulations, California v.
Zook, 336 U.S. 725, 730-731; cf. De Veau v. Braisted, 363
U.S. 144, 156-157; Parker v. Brown, 317 U.S. 341; and has,
on the other hand, struck down state statutes where the
respective purposes were quite dissimilar, First lowa Hydro-
Electric Cooperative v. Federal Power Comm'n, 328 U.S.
152. The test of whether both federal and state regulations
may Operate, or the state regulation must give way, is whether
both regulations can be enforced without impairing the fed-
eral su tendence of the field, not whether they are aimed
at ar or different objectives.
If this court had — as > threshold determination that the
national interest in exclusively regulating the discharge of u-
tants from tankers into the territorial waters was so hE pene
dominant that the federal government had occupied the field, then
a finding of preemption would follow because the state regulation
would “impair the federal superintendence of the field.” Thus in
Ray, once the Court found that “Congress intended uniform
national standards for design and construction of tankers,” it
followed that the Washington State safety measures were void
because they aimed “precisley at the same ends” as did “{t]he
federal scheme.” 435 U.S. at 163, 165. Similarly, in City of
Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638-39
(1973), the Court, having found that the “peculiarities and special
features” of the aviation regulatory scheme require “a uniform
and exclusive system of federal regulation,” did not allow a minor
local encroachment of excluding one night flight to a federally
regulated airport.
In the t case, however, this court has held that under the
PWSA/PTSA Congress did not intend to exclude completely
state laws prohibiting pollutant discharges from tankers into the
territorial waters of a state. As the Exxon and Inglis cases teach,
in an area of collaborative federal and state regulation, coincidence
—a—
In examining the potential for conflict between the
Alaska statute and the Coast Guard regulations under the
PWSA/PTSA, we note at the outset that the state law
prohibits acts that the federal regulations allow but do
not require. That is, Coast Guard regulations allow the
deballasting of “clean” ballast from cargo tanks, but do
not require it. As we have stated, “(T]he possibility of
proscription by [a state] of conduct that federal law
might permit is not sufficient to warrant preemption.”
Wiliam Inglis, 668 F.2d at 1049; see Florida Lime ¢
Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). A
finding of preemption is particularly inappropriate when
the state is regulating conduct permitted by federal
regulation, but only as an exception to a broad federal
of purpose actually militates against, rather than in favor of, pre-
emption. ~“Wheso the Goverustent kes goovthed fer eoftaberction
the courts should not find conflict.” Union Brokerage Co. v.
Jensen, 322 U.S. 292, 209 (1944), quoted in Merrill Lynch,
Pierce, Fenner & Smith, 414 U.S. at 137; accord Kewanee Oil Co.
v. Bicron Corp., 416 U.S. 470 (1974); New York State Dep't of
Social Servs. v. Dublino, 413 U.S. 405 (1973.
"While state prohibition of conduct allowed by federal regula-
tion may sometimes be preempted, such a conclusion requires
greater evidence of ive intent than that present in this
case. In Fidelity F Savings & Loan Ass'n v. de la Cuesta,
— US. —, 102 S. Ct. 3014 (1982), the Court held that a
preempted use federal regulations
Savings associations to use those clauses. There the federal agency
had uivocally expresse[d] the . . . determination to displace
state law,” based on its finding that the use of due-on-sale clauses
tions. _._. U.S. at _.__, 102 S. Ct. at 3024 (citations omitted).
|
:
i
authority over an area in direct conflict with overriding federal
policy. In short, the state’s deballasting prohibition coincides
with the general federal policy that prohibits deballasting from
cargo tanks except under very limited conditions.
—3la—
prohibition. Exron Corp. v. Governor of Maryland, 437
U.S. at 132. As discussed supra at pp. 3, 4, and 17-20 [3a,
4a and 20a-24a], the Coast Guard’s deballasting regula-
tions are based on those adopted by a 1969 international
convention. The terms of these deballasting rules as
adopted by Congress in the 1973 OPAA establish clearly
that the goal was to eliminate deballasting from cargo
tanks within fifty miles of shore, with an exception
carved out only for ballast that had been stored in a
cleaned tank.”
The history of regulation under the PWSA/PTSA
and the adoption of new international standards show
a continuing effort to reduce the discharge of ballast
from cargo tanks. The 1973 MARPOL and regulations
7°33 U.S.C. §§ 1002 and 1004 were amended in 1973 by the
OPAA to read as follows:
Sec. 1002. Subject to the provisions of sections 1003 and
1004 of this title, the discharge of oil or oily mixture from
a ship is prohibited unless —
(2) for a tanker, except discharges from machinery space
bilges which shall be governed by the above provisions for
ships other than tankers —
(i) the total quantity of oil discharged on a ballast voyage
does not exceed one fifteen-thousandths of the total cargo-
carrying capacity, and |
a, the tanker is more than fifty miles from the nearest
land.
Sec. 1004. Section 1002 of this title does not apply to the
discharge of tanker ballast from a cargo tank which, since the
Cargo was last carried therein, has been so cleaned that any
effluent therefrom, if it were discharged from a stationary
tanker into clean calm ater on a clear day, would produce
no visible traces of oil on the surface of the water.
33 U.S.C. §§ 1002, 1004 (1976), repealed and superseded by
33 U.S.C. §§ 1901-1911 (Supp. V 1981) (enabling legislation of
the MARPOL Protocol).
As described in the House Report to Pub. L. No. 96-478
(enacting the 1978 MARPOL Protocol) these 1969 international
deballasting standards, codified at 33 U.S.C. §§ 1002, 1004,
E pm prohibited all discharges from tankers within 50 miles
land.” H.R. Rep. No. 1224, 96th Cong., 2d Sess. 3, reprinted
in [1980] U.S. Code Cong. & Ad. News 4849, 4850.
—— 9a
under the PWSA required all new vessels over 70,000
DWT (deadweight tons) to have segregated ballast
tanks, and the vessels were prohibited from storing
‘ballast in cargo tanks unless required by emergency
‘ weather conditions. 33 C.F.R. §§ 157.09(a), 157.35. The
1978 MARPOL Protocol extended the requirements to all
new tankers over 20,000 DWT. Existing tankers over
40,000 DWT were required either to retrofit with segre-
gated ballast tanks or to install a crude oil washing
system. The PTSA increased the requirements as to
existing tankers by imposing them on all tankers over
20,000 DWT. 46 U.S.C. § 391a(7)(A). In enacting the
PTSA, Congress specifically ordered the Coast Guard to
undertake “the reduction or elimination of discharges
during deballasting...” 46 U.S.C. § 391a(6)(A) (vii).
In the context of the general prohibition against cargo
tank discharges within fifty miles of shore and the re-
peated changes in design requirements aimed at elimin-
ating cargo-tank ballasting, it is difficult to argue con-
vincingly that the Congress or the Coast Guard intended
to create a federal right to discharge ballast containing
oil into a state’s coastal waters. See Exzzon Corp. v.
Governor of Maryland, 437 U.S. at 132.
Although we conclude that the objectives of the Alaska
statute do not conflict with those of the Coast Guard
regulations under the PWSA/PTSA, we must never-
theless determine whether the’ facts of this case as
alleged or conceded by appellees reveal an irreconcilable
conflict when the Alaska statute and Coast Guard regn-
lations are applied concurrently in Alaska territorial
waters. Here again we must be guided by the Court’s
reluctance to entertain hypothetical conflicts because
“{ijn this as in other areas of coincident federal and
state regulation, the ‘teaching of this Court’s decisions
...enjoin[s}] seeking out conflicts between state and
—33a—
federal regulation where none clearly exists.’ ” 437 U.S.
at 130, quoting Seagram & Sons v. Hostetter, 384 U.S.
35, 45 (1966) (citations omitted).
No party asserts that it is physically impossible to
comply with both the Alaska statute and the relevant
Coast Guard regulations. Furthermore, the Alaska
statute was amended in 1980 to make clear that it would
not apply in cases where safety reasons dictated non-
compliance. Alaska Stat. 4 46.03.750(a)-(b).7* Appellees
argue that the Alaska regulation nevertheless conflicts
with the PWSA/PTSA because it interferes with the
delicate, cost-effective balance the Coast Guard has
achieved among design and operational features by
rendering some of the most expensive equipment, such
as crude oil washing systems, superfluous. According
to the affidavits submitted to the district court, the
typical practice of tankers is to discharge dirty ballast
beyond fifty miles, clean the tanks, take on new ballast
and then discharge this “clean” ballast in port. If on-
shore treatment is required then arguably this two-step
operation could be avoided and thus such design features
as tank-washing equipment may be unnecessary. There
appears to be room, however, for both the PWSA/PTSA
and- Alaska’s deballasting regulations to operate pur-
posefully. The tank-washing equipment would still be
a E ded i ; ’
onl ae cause rhe rs the ees fF eet a
cargo tank of a tank vessel into the waters of the state. A tank
vessel may not take on petroleum or a petroleum product or
Sent wuss ber pce Se au wi
of the sta and the al the van certifies that fact on
ror) The 4 bye a —- may discharge ballast
water from a cargo tank of his tank vessel if it is necessary
for the safety of the tank vessel and no alternative action is
feasible to assure the safety of the tank vessel.
Alaska Stat. § 46.03.750(a)-(b).
elites
necessary for vessels entering ports in other states which
do not have a cargo-tank deballasting prohibition. See
Dublino, 413 U.S. at 415. Furthermore, the legislative
history of the ‘bill enacting the 1978 MARPOL estab-
lishes the importance of crude oil washing systems even
where there are segregated ballast tanks, because sludge
builds up in the cargo tanks and reduces the amount of
deliverable cargo. H.R. Rep. No. 1224, 96th Cong., 2d
Sess. 5-6, reprinted im [1980] U.S. Code Cong. & Ad.
News 4849, 4852. The tank-cleaning features could serve
the further purpose of protecting the waters within fifty
miles of shore from environmental damage that might
be caused if ballast were released from a cargo tank dur-
ing an emergency or accident. Finally, the tankers call-
ing on Alaska’s ports also may apply to the Coast Guard
under 46 U.S.C. § 391a(7)(N) for exemptions from the
required design features on the basis that adequate
on-shore facilities exist to process all ballast water.”
2A simi i t was raised under the CWA
in Pacific ‘Lepel’ Fountasier > 3 Gabe 440 F. Supp. 316
(C.D. Cal. 1977) aff'd sub nom. Kilroy v. Quarles, 614 F.2d
225 (9th Cir.), cert. denied, 449 U.S. 825 (1980). The CWA
imposes two sets of criteria on ocean pollution: the first is the
effluent limitations and NPDES permit system; the second
is a section specially referring to ocean pollution that prohibits
any discharges that would “unreasonably degrad[e] the ocean
environment.” 440 F.Supp. at 324; see 33 U.S.C. § 1343 (1976).
sundiaion, the plaintiffs argued coon the
i
:
:
:
lution criteria “comparatively useless” Supp.
at 324. As in this case, Congress neglected to specify how these
two environmental laws were to relate to each other. The court
found that a limited role for the latter section could still exist and,
after examining the legislative history, ruled that, considering the
strength of congressional intent to eliminate pollution and the
absolutist nature of the permit system’s coverage, Congress intend-
ed both sets of criteria to apply concurrently. 440 F. Supp.
at 322-26.
—%e—
Appellees further argue that the Alaska statute con-
flicts with the PWSA/PTSA because it is an indirect
design feature. Unlike the Washington State statute
considered in Ray, Alaska has neither set out any re-
quired design features, nor has it even sought to impose
different conditions on vessels not meeting preferred
design criteria (as was held permissible under Title I
of the PWSA by the Court in Ray, 435 U.S. at 173).
Similar to the division of regulatory authority in 33
U.S.C. § 1322, discussed supra at note 13, Alaska has
left all designing of vessels and equipment to the Coast
Guard and has only prohibited the discharge of polluted
ballast. While this requirement may impose some finan-
cial burden on the regulated vessels and require their
owners to make some economic choices in order to com-
ply, such a burden neither converts the discharge pro-
hibition into a design feature nor justifies a finding of
federal preemption.”
Finally, appellees and amicus argue that Alaska is
unique in its ability to process ballast because of the
existence of a huge, expensive processing facility at
Valdez, built as part of the legislative compromise which
Currently all tankers, except the Alaska Standard, using
Alaskan ports are discharging Cargo-tank ballast into on-shore
Processing facilities. Appellees attempt to convince us that the
Alaska law effectively excludes the Alaska Standard from the
State’s waters because of a disfavored design feature that makes
it difficult for the vessel to comply with the state’s deballasting
—- The district court never reached this issue because it
ound that the PWSA/PTSA had preempted the field. Although
there was some f ispute at the district court over the rela-
tive ments and costs of alternative methods of compliance with
the Alaska deballasting prohibition, even appellees concede that
a range of alternatives exists, more than one of which would allow
the Alaska Standard to continue to make all of its ports of call in
Alaska. For example, its owner could build an on-shore processing
facility at each port it visits, or could pump ballast onto a barge
for transportation and later processing at an existing facility, or
could retrofit the Standard with segregated ballast tanks.
Un
allowed the Trans-Alaska pipeline to be constructed.
They argue that other states do not have such large
on-shore treatment capacity and that the Coast Guard
has adopted its regulation allowing deballasting from
cargo tanks because an across-the-board on-shore pro-
cessing requirement would severely overload facilities
in many areas of the country. 42 Fed. Reg. 32,671
(1977). Although these considerations might lead to
a different analysis in a future case dealing with another
state’s regulations, they are inapplicable here because
Alaska has expansive on-shore processing facilities and
no party has complained that enforcement of Alaska’s
deballasting regulation would cause the facilities to be
overloaded.
We are guided here by the principles set forth in
Pacific Legal Foundation v. State Energy Resources,
Conservation & Dev. Comm'n, 659 F.2d 903 (9th Cir.
1981), aff'd sub nom. Pacific Gas & Elec. Co. v. State
Energy Resources Conservation & Dev. Comm’n, —~
U.S. ——, 103 S. Ct. 1713 (1983) :
In applying preemption analysis, we “distinguish
those situations in which the concurrent exercise of
a power by the Federal Government and the States
... may possibly lead to conflicts and those situations
where conflicts will necessarily arise.” Goldstein v.
California, 412 U.S. 546, 554.... There is no neces-
sary conflict between [the state law under consider-
ation] and federal law, and it will be time to consider
any future conflicts if and when they arise.
*The only other evidence of this potential conflict that appellees
t is an assertion by the Coast Guard in an Environmental
Lapest Statement, not made available to this court, voicing a
similar concern regarding the adequacy and availability of on-
shore processing facilities in some jurisdictions, but apparently
lacking specific reference or finding as to Alaska.
—37a—
659 F.2d at 925 n.35 (citations omitted) (emphasis in
original).
CONCLUSION
Having determined that Congress did not intend to
preclude all state regulation of the discharge of pollutants
from tankers within three miles of shore, and finding no
irreconcilable conflict between the regulation of deballast-
ing under the PWSA/PTSA and the Alaska deballasting
statute under the facts presented by appellees, we con-
clude that the Alaska statute may co-exist with Coast
Guard regulations. Accordingly, the judgment of the
district court is reversed insofar as it holds that the
prohibition of discharge of ballast from cargo tanks into
state territorial waters under Alaska Stat. § 46.03.750(e)
is preempted by federal regulation and void under the
Supremacy Clause of the United States Constitution.
This case is REVERSED and REMANDED to the
district court with instructions to enter summary judg-
ment in favor of appellants on the preemption issue pre-
sented in this appeal.
—38a—
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
No. A77-195-Civil
Cuevnon U.S.A, Inc., et al.,
Plaintiff s,
and
INTERCONTINENTAL BULETANE Corporation, et al.,
Intervening Plaintiff's,
vs
Jay S. Hammonn, Governor of the State of Alaska, et al.,
Defendants,
and
Corpova District Fisnenrs Union, et al.,
Intervemng Defendants.
Memorandum Decision
Filed: September 18, 1979
BEFORE HON. JAMES M. FITZGERALD, JUDGE
PRESIDING
APPEARANCES: [Omitted]
In this phase of the litigation the parties’ have ad-
dressed the following issues by way of motions for sum-
mary judgment: |
A. Is the State of Alaska preempted under the Ports
and Waterways Safety Act of 1972 and the Port
and Tanker Safety Act of 1978 from enforcing
and deballasting provisions of Chapter 226;
The United States has filed an amicus brief addressing only the
validity of the State’s de ing provisions. While recognizing
desire to make operations environmentally
sound, the federal government contends the State’s deballasting
xe have been preempted by Title II of the Ports and
aterways Safety Act of 1972 as amended by the Port and Tanker
Safety Act of 1978, P.L. 85-474, 92 Stat. 1471.
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B. Can the State of Alaska constitutionally require
tanker vessels operating under a federal license to
obtain a state certificate of risk avoidance as 4
condition to navigating state waters;
C. Can the State of Alaska, in light of the Fourth and
Fourteenth Amendments, undertake warrantless
inspections of tank vessels?
This memorandum deals only with the preemption issue.
Chevron’s moving papers and supporting affidavits es-
tablish that proper ballasting is essential to the safe
operation of oil tankers. In simple terms, the process
involves the replacement of cargo with ballast water in
order that an unladen vessel may be submerged deeply
enough to properly operate its power and navigational
equipment, to minimize hull and bulkhead stress, and to
insure proper vessel stability. Significantly, sea and
weather conditions determine the proper amount of bal-
last required to assure ultimate seaworthiness.
The exact placement of ballast water in tankers is
largely dependent upon individual vessel construction.
In some tankers emptied cargo tanks are used to contain
ballast water during unladen voyages while in others,
ballast water is carried in tanks restricted to that purpose
(“segregated” ballast tanks).
Prior to taking on cargo, all tankers must discharge
ballast water to allow loading of the vessel to its designed
capacity, regardless of whether ballast has been kept in
cargo tanks or segregated ballast tanks. However, absent
direct unloading of ballast water into an onshore treat-
ment facility, any discharge of ballast water stored in
cargo tanks will invariably contain some residual oil. As
a result, the discharge of ballast water from cargo tanks
must be reckoned with as a potential source of water
pollution.
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In dealing with deballasting as a source of pollution,
the State of Alaska prohibits the discharge of ballast
water from cargo tanks into state waters, imposing the
requirement that ballast water be processed by an on-
shore ballast water treatment facility :
Cargo in tank vessels ... engaged in the marine
transportation of crude oil, refined petroleum pro-
ducts or their by-products may not be placed in
segregated ballast tanks, nor may ballast be placed
in cargo tanks of those tank vessels having segre-
gated ballast systems. However, the department may
by regulation permit the placing of ballast in the
cargo tanks of those vessels in emergency situations.
All ballast placed in cargo tanks shall be processed
by or in an onshore ballast water treatment facility
and may not be discharged into the waters of the
state (Emphasis added)
Section 3, Chapter 226, SLA 1976; AS 46.03.750(e).
In addition, Alaska has established standards under
the State Water Quality Act which limits the amount of
oil which may be discharged by any vessel into state
waters:
*Other provisions further limit the operation of tanker v- sels
S nn ee ee aS eee 2 ae
the vessel’s master certifies that during its voyage to or within
Alaska the vessel has not discharged any ballast water having an
oil content in excess of 50 parts per million. § 3, Chapter 120,
SLA 1971 codified at AS 46.03.750(a)-(c).
In the Stipulation for Entry of Partial Final Judgment and Per-
manent Injunction, filed April 19, 1978, defendants conceded that
the provisions of AS 46.03.750(¢), quoted above, and the imple-
menting regulations contained in 18 ACC 27.010(f) and (g),
were invalid insofar as they attempt to the placement of
ballast water in cargo tanks. However, validity of Alaska’s
requirements with respect to the discharge of ballast water from
cargo compartments was left unaffected by that stipulation and
was reserved for decision here. See Fourth Pretrial Order § 51.
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No person may pollute or add to the pollution of
waters of the state by discharging from any vessel
ballast water, tank-cleaning wastewater, or other
waste containing petroleum in excess of the maxi-
mum permitted by the water quality standards estab-
lished under §§ 70 and 80 of this chapter and in no
event may a vessel discharge ballast water, tank-
cleaning waste water or other waste containing
petroleum in excess of 50 parts per million of oil
residue.’
ALS. 46.03.750( a)
Both provisions purport to regulate tanker deballasting-
related pollution of the “waters of the state,” a term
broadly defined in AS 46.03.900(22).*
Chevron challenges these siatutes contending that in
effect they prohibit normal tank vessel operations
which are otherwise expressly permitted by federal and
international law. Although United States Coast Guard
regulations permit vessels to discharge “clean” ballast*®
from cargo tanks into all waters, Alaska prohibits any
discharge into state waters of cargo tank-held ballast
%AS 46.03.750(b) provides further that no vessel may take on
troleum as cargo unless it arrives in ports in the state without
sien Gachenaed Cellant ot on Gasinn Go puted ef tne bom
departure of the vessel enroute to the state from a port outside the
state to arrival at a port in the state or while in transit between
ports in the state.
*AS 46.03.99(22) defines “waters” in the following terms:
(22) “waters” includes lakes, bays, sounds, ponds, im-
pounding reservoirs, springs, wells, rivers, streams, creeks,
ae Sr SE Soe, Seeenee, cea, Go Pasi
i Arctic Ocean, in the
or underground water, natural or artificial, public or private,
i or salt, which are wholly oa
in or bordering the state or under the jurisdiction of the state.
coe ee definition of “clean” ballast is discussed at
§ 157.03(e).
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water. Moreover, while under certain conditions, Coast
Guard regulations permit the discharge of “oily” ballast
water at sea so long as the discharge occurs more than
50 miles from land,* Alaska imposes an additional re-
quirement that ballast water have an oil content of no
more than 50 parts per million. Thus, in rendering un-
lawful what federal law and international standards
permit, Chevron contends the State has intruded into an
area preempted from state regulation by Title I of the
Federal Ports and Waterways Safety Act, as amended.’
Additionally, Chevron argues, the State’s prohibition of
discharge of ballast water within state waters, with the
companion requirement that ballast water be transferred
into an onshore treatment facility, constitutes a substan-
tial burden on the operation of tankers not equipped with
segregated ballast compartments, thereby indirectly con-
stituting a design requirement.°
*33 C.F.R. § 157.29. Basically “oily” ballast water may only be
discharged at a rate of less than 60 liters per nautical mile, and
in a quantity limited to a prescribed fraction of the total former
cargo.
™Pub.L.
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