Joint Appendix — United States v. Locke
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Nos. 98-1701 and 98-1706
IN THE
Supreme Court of the United States
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Petitioner,
and
UNITED STATES OF AMERICA,
Petitioner,
Vv.
GARY LOCKE, Governor of the State of Washington, er ai.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
JOINT APPENDIX
SETH P. WAXMAN C. JONATHAN BENNER
Solicitor General ECKERT SEAMANS CHERIN
Department of Justice & MELLOTT, LLC
Washington, DC 20530-0001 1250 24th Street, N.W.
(202) 514-2217 Suite 700
Counsel of Record for Washington, DC 20037
Petitioner, United States (202) 659-6600
of America Counsel of Record for
Petitioner, INTERTANKO
CHRISTINE O. GREGOIRE JEFFREY L. NEEDLE
Attorney General LAW OFFICES OF
P.O. Box 40100 JEFFREY L. NEEDLE
Olympia, WA 98504-0100 —-119 First Avenue South
(360) 753-6245 Suite 200
Counsel of Record for Seattle, WA 98104
State Respondents (206) 447-1560
Counsel of Record for
Respondent-Intervenors
—————————————————————
Petitions for Writ of Certiorari Filed April 23, 1999
Certiorari Granted September 10, 1999
i
TABLE OF JOINT APPENDIX
Page
Relevant Docket Entries, Ninth Circuit and U.S.
Demet Comst (WD. WO.) . . oss 0: emwin ws JA-1
Letter of August 25, 1993 from Adm. Henn USCG to
Barbara Herman, OMS
Declaration of Robert Bishop in Support of Plaintiff
Letter of September 15, 1995 from OMS to Chronos
Shipping with Notice of Determination... .
Letter of June 22, 1995 to Barbara Herman, OMS
from Adm. Card USCG
January 30, 1991 Memorandum from Chief Counsel,
USCG to Chief of Staff Re: Review of
California Oil Spill Prevention and Response
Affidavit of C. Jonathan Neel (States/British
Columbia Oil Spill Task Force)
Exhibit 38
Law of the Sea Treaty Provisions
Affidavit of William B. Collins
Affidavit of Stanley J. Norman.............. JA- 88
MND BE. ow as vba kok XA ee JA-128
GP cc cece cccenediele cea JA-129
SUE SY oes bene cen eee JA-133
Exhibit 33
Exhibit 34
{[Note: Exhibits 33 and 34 are oversized
exhibits that Respondent has lodged separately
with the Court.]
Affidavit of Megan N. Dethier (Shoreline Habitats). . JA-136
Affidavit of Ronald M. Thom (Coastal Aquatic
Vegetated Habitats in Washington State). . JA-145
Affidavit of Dennis Paulson (Seabirds-Valuable and
Vulnerable Resources of Washington’s Marine
Wet). 64s is eaeewc tue JA-161
Affidavit of Morris W. Barker —_................ JA-173
Affidavit of Susan Zemek ................ JA-180
Fy rn ermeery te a JA-182
Affidavit of Richard Kocan ............... JA-191
Affidavit of Ronald F. Teissere ............ JA-200
Affidavit of Arthur McKenzie in Support of Intervenors’
Motion for Summary Judgment ........ JA-203
Declaration of Sally Ann Lentz in Support of Motion
for Summary Judgment ............. JA-211
Ames Cia ctteceenmean JA-219
ph ne rp JA-223
Page
Attachments to Declaration of Darin Bartram ... JA-245
Second Affidavit of Stanley J. Norman ....... JA-253
ees gn 2 aT eeeee JA-264
Te Meals abies Ulli ts els oo « JA-266
OE ES Te a JA-292
Declaration of William Bafus with Table "A" ... JA-295
Attachment to Reply by Plaintiff Intertanko.... . JA-301
Declaration of Jeffrey Needle in Reply to Intervenors'’
Motion for Summary Judgement ....... JA-304
Attachment A-Report Of Lord Donaldson's Inquiry
Into The Prevention Of Pollution From
a JA-306
Letter of September 28, 1993 From the Washington
State Congressional Delegation to
Commandant J. William Kime USCG ... JA-327
Affidavit of Arthur McKenzie ............. JA-330
iv
The following opinions, decisions, judgments and orders have
been omitted in printing this joint appendix because they
appear on the following pages in the appendix to the printed
Petition for Certiorari:
Order and Amended Opinion Of The United States
Court of Appeals For The Ninth Circuit Dated
And Filed June 18, 1998 And Amended
August 31, 1998 (Appendix A)............
Order Of The United States District Court For The
Western District Of Washington At Seattle
Dated, Entered And Filed November 18, 1996
(AUTRE Dg ot ecko uc twee ccdesecies
Order Of The United States Court Of Appeals For
The Ninth Circuit Dated And Filed November
DE, CI EGE hc evn aticcevaces
JA-1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
97-35010
INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS;
Plaintiff-Appellant
USA
Intervenor-Appellant
Vv.
MIKE Lowry, Governor of the State of WA, et al
Defendants- Appellees
and
NATIONAL NATURAL RESOURCES DEFENSE COUNCIL;
WASHINGTON ENVIRONMENTAL COUNCIL;
OCEAN ADVOCATES INC.
Intervenors-Appellees
RELEVANT DOCKET ENTRIES
DATE PROCEEDINGS
4/24/97 Filed motion by the United States to
intervene; served on 4/23/97 [3218850]
(MOATT) [97-35010} (gail)
5/9/97 Received original and 15 copies amicus
curiae Int'l Chamber of Shipping's brief of
50-pgs; served on 5/7/97 (mtn to file
pending) [97-35010} (gail)
DATE
5/12/97
6/6/97
7/1/97
9/3/97
9/3/97
2/4/98
JA-2
PROCEEDINGS
Filed original and 15 copies intervenor
USA's amicus curiae brief of 56-pgs; served
on 5/7/97 [97-35010] (gail)
* * * * The mtn to intervene filed by the US
is granted. * * * *
Filed original and 15 copies Appellant's
opening brief of 92-pgs and 5 excerpts of
record (Informal: no); served on 6/30/97
[97-35010] (gail)
Filed original and 15 copies appellees (Gary
Locke, et al.)'s ans brf of 64 pgs +
appendix and 5 excerpts of record in 6 vols.:;
served on 8/25/97 [97-35010] (gail)
Received original and 15 copies intv/aple
(National Res Def Cncl, Washington Env
Cncl, and Ocean Advocates) brief of 63-pgs
(Recvd because brfs are missing proof of
service; notified cnsl.) [97-35010] (gail)
ARGUED AND SUBMITTED TO James
R. BROWNING, served on 7/31/98
(PANEL AND ALL ACTIVE JUDGES)
(97-35010] (gail)
DATE
8/31/98
8/31/98
11/24/98 °
JA-3
PROCEEDINGS
Filed order and amended opinion. The
panel's opinion, filed on 6/18/98, is
amended as follows: (For Complete Text
See Order) (FAXED TO CSL AT 2:32
P.M.) (Judges James R. BROWNING,
Diarmuid F. O'SCANNLAIN, Alfredo C.
Marquez,) (Orig. opinion id: [3472982-1])
[97-35010] (gail)
[3499649] Filed original and 40 copies aplt
Intl Assoc of Indep petition for rehearing
with suggestion for rehearing en banc 20
p.pages, served on 8/31/98 (PANEL AND
ALL ACTIVE JUDGES) [97-35010] (gail)
Filed order (James R. Browning, Diarmuid
F. O'SCANNLAIN, Alfredo C. Marquez):
The panel has unanimously voted to deny
the pet for rhrg. Judge Browning and Judge
O'Scannlain have voted to reject the sugg
for rhrg en banc, and Judge Marquez so
recommends. The full ct was advised of the
suggs for rhrg en banc. An active judge
requested a vote on whether to rehear the
matter en banc. The matter failed to receive
a majority of the votes of the nonrecused
judges in favor of en banc consideration.
FRAP 35. The pets for rhrg are DENIED
and the suggs for rhrg en banc are
REJECTED. (Judge Graber's dissent to
denial of pet for rhrg included) (See Order
for Full Text.) [3499345-1] [97-35010]
(gail)
DATE
12/2/98
3/18/99
JA-4
PROCEEDINGS
MANDATE ISSUED [97-35010] (jr)
Received letter from the Supreme Court
dated 3/15/99 re: ext of time to file pet for
writ of cert has been extended to 4/23/99
(Casefile) [97-35010] (gail)
JA-5
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
2:95cv 1096
INTERTANKO, ef al.
V.
Lowry, et al.
RELEVANT DOCKET ENTRIES
DATE NO.
VAW/9S— 1
9/19/95 12
1/25/96 --
PROCEEDINGS
COMPLAINT of Intertanko for
declaratory relief and permanent
injunction against the enforcement of
certain statutes and regulations of the
State of WA purporting to regulate
operations, manning, and equipment of
tank vessels in interstate and
international commerce (Summons(es)
issued) Receipt # 223757 (gm) [Entry
date 07/28/95]
ANSWER to complaint [1-1] by
defendant Mike Lowry, defendant
Christine O Gregoire, defendant
Barbara J Herman (gm) [Entry date
09/22/95]
PROPOSED Intervenor's Answer by
defts Natural Resources Defense
Council & WA Environmental Council
(gm) [Entry date 01/31/96]
DATE
1/25/96
6/3/96
6/3/96
6/3/96
6/3/96
6/3/96
NO.
87
89
102
103
105
JA-6
PROCEEDINGS
ANSWER to complaint filed by
Intervening Defts Natural Resources
Defense Council & WA Environmental
Council [1-1] (gm) [Entry date
01/31/96]
MOTION by State defendants for
partial summary jgmnt; O.A. REQ'D
NOTED FOR 7/19/96 (JOINT
APPENDIX FILED IN EXPANDOS)
(gm) [Entry date 06/04/96] [Edit date
06/05/96]
MEMORANDUM by defendants in
support of motion for partial summary
jgmnt [87-1] (gm) [Entry date
06/04/96}
MOTION by intervenor National
Resources, intervenor WA Environ
Coun, intervenor Ocean Advocates Inc
for summary jgmnt; O.A. REQ'D
NOTED FOR 7/19/96 (gm) [Entry date
06/04/96}
MEMORANDUM by intervenor in
support of motion for summary jgmnt
[102-1] (gm) [Entry date 06/04/96]
MOTION by plaintiff Intertanako for
summary jgmnt; O.A. REQ'D NOTED
FOR 7/19/96 (gm) [Entry date
06/04/96]
DATE
6/3/96
6/3/96
7/2/96
7/3/96
7/3/96
NO.
107
113
116
117
JA-7
PROCEEDINGS
MEMORANDUM by ss opiaintiff
Intertanko in support of motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
06/04/96] [Edit date 06/05/96]
APPENDIX VOLUME I thru IV filed
by plaintiff Intertanko re motion for
summary jgmnt [105-1] (FILED IN
EXPANDOS) (gm) [Entry date
06/04/96]
OPPOSTION (RESPONSE) by
defendant James H. Krider to motion
for summary jgmnt AND JOINDER of
"State Defts" OPPOSITION TO
Summary Judgment [105-1] (gm)
{Entry date 07/03/96]
MEMORANDUM OF POINTS AND
AUTHORITIES IN RESPONSE by
plaintiff Intertanko to motion for
summary jgmnt [102-1] (FILED IN
EXPANDO) (gm) [Edit date 07/08/96]
MEMORANDUM IN OPPOSITION
(RESPONSE) by plaintiff Intertanko to
motion for summary judgment [99-1]
(FILED IN EXPANDO) (gm) [Edit
date 07/08/96]
DATE
7/3/96
7/3/96
7/3/96
7/15/96
7/15/96
7/15/96
NO.
118
119
121
131
132
134
JA-8
PROCEEDINGS
MEMORANDUM OF POINTS AND
AUTHORITIES IN RESPONSE by
plaintiff Intertanko to motion for partial
summary jgmnt [87-1] (FILED IN
EXPANDO) (gm) [Edit date 07/08/96]
RESPONSE by intervenor to motion
for summary jgmnt [105-1] (gm) [Entry
date 07/08/96]
RESPONSE by State defendants to
motion for summary jgmnt; [105-1]
(gm) [Entry date 07/08/96]
REPLY by plaintiff Intertanko TO
Intervenors RESPONSE to motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
07/17/96] [Edit date 07/17/96]
REPLY by plaintiff Intertanko TO State
Defts RESPONSE to motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
07/17/96}
REPLY by State Defts TO pltf
Intertanko's RESPONSE to motion for
partial summary jgmnt [87-1] (gm)
[Entry date 07/17/96]
- —
DATE
7/15/96
9/24/96
9/24/96
9/24/96
9/27/96
NO.
136
147
148
150
154
JA-9
PROCEEDINGS
REPLY MEMORANDUM by
intervenor IN SUPPORT OF motion
for summary jgmnt [102-1] (gm) [Entry
date 07/17/96]
MOTION by intervenor WA Environ
Coun to supplement the summary
judgment record NOTED FOR
10/11/96 (gm) [Entry date 09/25/96]
MEMORANDUM by intervenor WA
Environ Coun in support of motion to
supplement the summary judgment
record [147-1] (gm) [Entry date
09/25/96]
SUPPLEMENTAL DOCUMENTS in
support of AND IN OPPOSITION to
Summary Judgment by intervenor WA
Environ Coun to [105-1] (gm) [Entry
date 09/25/96]
RESPONSE by plaintiff Intertanko to
motion to supplement the summary
judgment record [147-1] (gm) [Entry
date 09/30/96]
DATE
9/30/96
10/7/96
10/9/96
10/22/96
NO.
156
157
159
160
JA-10
PROCEEDINGS
MINUTE ORDER: by direction of
Judge John C. Coughenour
GRANTING Intervenors motion to
shorten time and accompanying motion
to supplement the summary judgment
record with additional documents. The
documents submitted by intervenors
and the documents submitted by pltf
with its response to intervenors' motion
to supplement are hereby added to the
summary judgment record. [147-1]
[151-1], (cc: counsel, Judge) (gm)
STATEMENT OF ADDITIONAL
AUTHORITIES by state defendants
(Attachment) (kerr)
MINUTES OF ARGUMENT: JCC;
Dep. Clerk: Julie Mahnke; CR:
Stanley-Knight (Flygare); Attys present
Henry Jameson, Jonathan Benner,
William Collins, Jeff Needle, Sean
Connaughton; cns] heard. Ct will issue
a written decision. (rs) [Entry date
10/10/96]
MOTION by plaintiff Intertanko to
supplement the record on summary
judgment NOTED FOR 11/8/96 (gm)
{Entry date 10/23/96]
DATE
10/22/96
11/1/96
11/18/96
NO.
161
166
179
JA-11
PROCEEDINGS
MEMORANDUM by ss pilaintiff
Intertanko in support of motion to
supplement the record on summary
judgment [160-1] (gm) [Entry date
10/23/96]
RESPONSE by defendant Mike Lowry,
defendant Christine O Gregoire etc to
motion to supplement the record on
summary judgment [160-1] (dm) [Entry
date 11/04/96]
ORDER by Judge John C. Coughenour
GRANTING pitf's motion to
supplement the record on summary
judgment. [160-1], DENYING dft
Krider's motion for summary jgmnt;
[105-1] GRANTING dft's &
intervenor's motion for summary
jgmnt; [102-1] DENYING pltf's motion
for summary judgment [99-1],
GRANTING dft's motion for partial
summary jgmnt; [87-1] This action is
hereby DISMISSED and the Clerk of
the Court is directed to enter judgment
accordingly. Case terminated. (cc:
counsel, Judge, JM) (dm)
DATE
11/20/96
12/11/96
NO.
180
182
JA-12
PROCEEDINGS
JUDGMENT: by court the motions for
summary jgm filed by dfts and
intervenors are GRANTED and the
motion for summary jgm filed by
Intertanko is DENIED. This action is
DISMISSED (cc: counsel, Judge, Jgm.
Book) Entered on 11/20/96 (rs)
NOTICE OF APPEAL by plaintiff
Intertanko form Dist. Court decision
[179-2, 180] (cc: CCA, JCC, Counsel)
(Ib) [Entry date 12/14/96]
AUG 25 1993
State of Washington
Office of Marine Safety
711 State Ave., NE
Olympia, WA 98504-2407
Dear Ms. Herman:
In previous recent correspondence, I advised you of my
concern regarding the application of certain provisions of
Washington State law and their application to Canada-bound
vessels transiting the Strait of Juan de Fuca. My concern
focuses on some actions that may be taken by your office that
agreements, each of which may be more beneficial overall in
protecting the environment. I hope that we can come to a
workable solution among all three governments to resolve
what I see as a near term conflict between the application of
As a legal matter, I would call your attention to the 1979
Canada-United States Agreement for a Cooperative Vessel
Traffic Management System for the Juan de Fuca Region.
Under that Agreement, the Parties have recognized the
desirability of compatibility in their respective national
regulations bearing on marine safety and environmental
protection applicable to vessels using the cooperative vessel
traffic management system (CVTMS). Specifically, Canada
and the United States have agreed that -
JA-14
In applying its regulations to vessels proceeding
through its portion of the applicable waters solely en
route to or departing from a port of the other Party,
will consider compliance with the requirements of
the other Party to be effectively equivalent to
material compliance with its own r-<wirements, so
long as the requirements and enfot erent practices
of the other Party, in their totality, continue to
provide a comparable degree of marine safety and
environmental protection.
It is the Coast Guard's opinion that the applicanon of
Washington State's regulations regarding vessel oil spill
prevention plans to vessels utilizing the (CVTMS) solely en
route to or departing from Canada would contravene the 1979
Agreement. As a consequence, such an application would be
voided by the Supremacy Clause of the United States
Constitution.
While the Coast Guard has a number of authorities,
including 33 U.S.C. 1230, which it might exercise in this
situation, we would hope to be able to work with your Office
during the course of our discussions with the Canadians on the
question of appropriate standards and requirements in waters
of mutual interest. We understand, in this connection that
your Office has authority under the applicable statute and
regulations to waive regulation application where there is a
legal basis for the waiver. We suggest that the Coast Guard
opinion referred to above would provide the legal basis for
such a waiver. Certainly such a waiver would assist in
avoiding misunderstandings as to the applicability of the
State's requirements in contravention of the Agreement, and
improve the atmosphere for my discussions with Canada.
You and I share similar goals to act swiftly to protect our
waters. To do this, we must work cooperatively with those
JA-15
who share our waters. Therefore, it is essential that we work
carefully and through diplomatic channels. Sometimes this is
a slow, deliberate process - but it works. Indeed, we have
several imitiatives in progress similar to your pollution
prevention plans. These include:
1. The proposed "International Management Code for
the Safe Operation of Ships and for Pollution
Prevention,” enclosure (1).
2. Through the International Maritime Organization
(IMO) Subcommittee on the Standards of Training and
Watchkeeping (STW), we are working on a number of
issues for revision to the Standards of Training, Crewing
and Watchkeeping (STCW) convention including:
a. Training and operating procedures for all
personnel involved in the operation or navigation of
tank vessels;
b. Human elements such as fatigue and workhour
limits;
c. Proficiency in the English language;
d. Mandatory vessel reporting schemes;
e. Simulator training; and
f. Port-State controls.
We invite you to participate in this and like efforts by
attending the SOLAS Working Group on Training and
Watchkeeping which is scheduled to meet at the Department
of Transportation Headquarters in Washington D.C., on
October 14, 1993. We have taken the liberty of adding you to
our mailing list; so a package describing the meeting and an
agenda will be sent to you in advance.
JA-16
My staff has advised me that you are interested in
working with us to promote Washington State concerns both
nationally and internationally. Please find enclosed
background information on our work with IMO as well as our
national advisory committees. I encourage you to participate
in and use these fora and the processes to vet Washington
issues to a broader community.
I hope we can resolve these issues soon.
Sincerely,
/s/ A.E. Henn
A.E. Henn
Rear Admiral, U.S. Coast Guard
Chief, Office of Marine Safety,
Enclosure
JA-17
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
No. C95-1096C
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS
Plaintiff,
VS.
MIKE Lowry, Governor of the State of Washington, et al.,
Defendants ,
and
THE WASHINGTON ENVIRONMENTAL COUNCIL, et al.,
Intervenors.
DECLARATION OF ROBERT BISHOP
IN SUPPORT OF PLAINTIFF INTERTANKO
I, Robert Macnair Bishop, declare as follows:
1. Iam an employee of INTERTANKO in the capacity of
Manager of the Marine & Environment Section. I am at least
18 years of age and am competent to testify on the matters
herein, and make this Declaration based on my current
2. lam a citizen of the United Kingdom, hold a Master's
mariner's certificate and have extensive ship-board experience
on a wide variety of vessels, including Dry Cargo Ships, Bulk
Carriers, Container Ships and Tankers.
JA-18
3. Inmy capacity as Manager of the Marine & Environment
Section I regularly represent INTERTANKO at the
International Maritime Organization and other fora. I provide
information to Members on international legislation affecting
tankers, charterers' vetting inspections and Port State Control,
and write the monthly Tanker Safety Circular letter. I am
currently engaged in providing research into the safe carriage
of oil by sea and the ISM Code.
4. Ihave reviewed a document entitled the Second Affidavit
of Stanley J. Norman and have the following comments.
5. The Second Affidavit of Stanley J. Norman contains a
number of mis-statements of fact which should be clarified:
a. On page 5, line 22-23, Mr. Norman mistakenly tries
to limit the definition of "fleet" in the BAP Regulations
to only those vessels that operate in Washington waters.
This is incorrect for a number of reasons.
(1) It is impossible and unrealistic for an owner to
determine in advance and segregate for compliance
purposes, the vessels in his fleet which will be
trading to Washington State on account of the nature
of the spot market for oil transportation. Cargoes of
oil are oftentimes sold after loading on a vessel with
a consequent change in the routing of the vessel. As
a result, a tanker owner cannot rationally designate
only a portion of his entire fleet of vessels as
"Washington eligible" and ensure compliance with
BAP Regulations for only those vessels. In order to
ensure that any vessel in his fleet is capable of
responding to any spot demand for a vessel, owners
trading to the West Coast of North America will be
obligated to comply with the BAP Regulations even
JA-19
if a particular vessel is not scheduled to call at
Washington.
(2) Mr. Norman Himself states the "the intent is to
have a universal system for a fleet of vessels to allow
owners and operators the flexibility to move trained
personnel between vessel without having to retrain
them in the three primary functions, navigation,
collision avoidance, and administration, for each
vessel on which they embark." (Second Norman
Affidavit p.61, 1-4). From a safety and efficiency
viewpoint (endorsed by Mr. Norman) it is also
essential that every vessel in a fleet maintain uniform
Norman's assertions on page 5 that a fleet owner is
only required to adopt Washington's regulations for
a portion of his fleet directly contradict his stated
desire for uniform procedures on page 6. The
Washington standards for any owner who has any
expectation of either calling in Washington, or even
for owners merely transiting Washington State
waters en route to Oregon or Canada, thus become
a minimum requirement or lowest common
denominator that applies to all of his fleet throughout
the world.
b. On page 5, lines 4 through 12, Mr. Norman asserts
that WAC 317-21-130, which requires owners and
operators of tank vessels which come into Washington
waters to report events anywhere in the world, is
intended only to collect information and will not be used
against a tank vessel owner. Rather, according to Mr.
Norman, the information will be used to measure the
effectiveness of prevention measures used by the tanker
owners in response tc events in other areas of the world.
JA-20
Whatever the use of the data, if a tanker owner fails to
comply with this requirement, OMS will (or could) deny
entry of a vessel into Washington.
c. On page 5, line 13-14, Mr. Norman asserts that
WAC 317-21-130 is consistent with current efforts in the
Internationa. *~**time Crganization ("IMO") to establish
reporting requirements. This is not correct. IMO is
currently concerned only with accident reporting not
inspection or near miss reporting as required by the BAP
Regulations. Consequently, a tanker owner would be
required by this regulation either to change its reporting
procedure for its entire fleet, including those vessels not
scheduled to call the State of Washington or to establish
a separate reporting protocol for those vessels which may
be routed to the State of Washington. Of course, it is
impossible to predict with any great certainty which
vessels are likely to be routed to any particular port.
d. WAC 317-21-200(2) requires creation of a
standardized bridge resource management system for all
vessels in a company's fleet. Mr. Norman asserts that
these rules only apply to "those vessels that may operate
in Washington waters" but also states that the "intent is
to have a universal system for a fleet of vessels to allow
owners and operators the flexibility to move trained
personnel between vessels without having to retrain
them" Second Norman Affidavit p.5-6. As is set out
above, conditions of the global spot market for oil, which
demands that owners have all vessels ready to load oil for
delivery to destinations throughout the world, including
the State of Washington, do not permit neat segregation
of assets by ultimate destination. Therefore, in order for
a fleet owner to meet the State of Washington's intent of
having the flexibility of trained personnel adequate to
JA-21
meet any specific state of national requirements, a tanker
owner would have to apply Washington's bridge resource
management system throughout its entire fleet, whether
or not the tanker owner had plans to have a specific
vessel call at Washington.
e. A tanker owner will have to apply Washington's
regulations regarding crew training, drill programs,
record keeping, and management programs across the
board throughout its entire fleet whether or not an
individual vessel is scheduled to call the State of
Washington. The State of Washington's goals of strict
international uniformity in the "three primary functions,
navigation, collision avoidance, and administration"
(Second Affidavit of Stanley J. Norman, p. 6) can only
be met by the adoption of the State of Washington's
procedures to its operations around the world.
f. As to WAC-317-21-230, which requires
implementation of crew training and drill programs, Mr.
Norman asserts that “all training and drills can be
accomplished within Washington." Second Norman
Affidavit, p. 6, 1 10. This statement is, at best,
unrealistic. In the first instance, it presupposes that OMS
would permit a vessel to enter Washington waters without
first having conducted training and drills and then, only
after the vessel enters those waters, conduct training
drills. This is simply not credible. Further, and more
importantly, under the ISM Code, a company will be
required to have training programs in line with
international requirements and recommendations. Where
those drills are at variance to the drills and training
programs set out in WAC-317-21-230, there is a
subsequent lack of uniformity which defeats the singular
purpose of having drills in the first instance - a
JA-22
uniformed, pre-conditioned response to a given set of
emergency conditions. Finally, approaches and
departures from ports are the busiest, and potentially
most hazardous parts of a voyage. For Mr. Norman to
suggest that training and drills could take place during
this time is again unrealistic and without doubt a hazard
to the environment and safety of the vessel.
g. AstoWAC-317-21-260, which requires management
systems, it would be unrealistic to expect that a vessel
would incorporate the type of systems and procedures
required by this BAP Regulation solely while in
Washington waters. No INTERTANKO member is
headquartered in Washington State. Any management
requirements must by its nature be conducted out of state.
h. Mr. Norman attempts to minimize the incongruities
between the State of Washington's regulations and
international regulations when he states that "Washington
hopes that all the BAP standards will eventually be
incorporated into international law and therefore the only
expense incurred would be to produce and submit a
prevention plan." Second Norman Affidavit, page 8 line
11. Mr. Norman's unsubstantiated hopes for the future do
not effect of the immediate and substantial impact of the
BAP Regulations on current tanker operations.
i. Similarly, Mr. Norman attempts to minimize the cost
of compliance. Second Norman Affidavit, p. 7-8. As to
the cost of compliance with the BAP Regulations,
INTERTANKO asserts that each vessel in its fleet, for
the reasons set out above, whether it has immediate plans
to call the State of Washington or not, will incur
substantial compliance costs even for vessels not
scheduled to call at Washington ports. The BAP
Regulations also create managerial, administrative, and
JA-23
personnel costs that are not dependent on port calls in
Washington.
j. Mr. Norman mistakenly states that "the U.S. Coast
Guard has no mechanism like prevention plans for
evaluating compliance of Foreign Flag vessels with
management practices and personnel policies." p. 8 line
14-15. The certifications required by various international
conventions are precisely for the purpose of enforcing
compliance. The Coast Guard checking these certificates
is no less valid a way of evaluating a vessel's
management and personnel policy as than are
Washington's BAP plans.
k. Mr. Norman discusses the BAP Regulations vis-a-vis
the SOLAS requirements for emergency towing. Norman
Aff. p. 9. The BAP Regulations require that emergency
towing equipment be remotely deployable. The federal
requirement contains no such standard. Thus, but for the
BAP Regulations vessels calling in Washington waters
would have to install remotely deployable towing
packages.
6. Animportant concern for INTERTANKO is that the State
of Washington could set a precedent by establishing unilateral
regulations. Tanker shipping is international. Tanker shipping
is regulated in most respects by the UN body of the
International Maritime Organization (IMO). If other states
within the United States impose similar, or worse yet
dissimilar requirements as the State of Washington, that
would not only increase the economic burdens, but could soon
make the tanker impossible to operate as different States’
requirements for the same equipment might not necessarily be
the same. The vessel is carefully designed to accommodate for
trading to a large variety of different ports of various sizes
and navigational environment. Often a tanker changes
JA-24
destination underway which means that the discharge port is
often not known at the time of loading. The crew onboard is
replaced at certain intervals and needs to be trained to operate
one uniform equipment set and procedures for every tanker.
The use of different types of installations, equipment, and
procedures will not only be costly and impractical, but may be
highly counterproductive to safety and pollution prevention.
It is obvious that a crew that needs to react swiftly in an
emergency situation will need to be trained on one set of
procedures and equipment.
I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and
correct.
Signed at Oslo, Norway on July 13, 1996.
/s/ RM Bishop
Robert Macnair Bishop
JA-25
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
No. C95-1096
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,
vs.
MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MACEACHERN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,
Defendants.
AFFIDAVIT OF MILES KULUKUNDIS
IN SUPPORT OF PLAINTIFF INTERTANKO
I, Miles Kulukundis, testify as follows:
1. Iam the President of London and Overseas Freighters
(Bermuda), Limited ("LOF"). I am at least 18 years of age
and am competent to testify on the matters stated herein, and
make this affidavit based on my personal knowledge and
belief.
2. LOF is incorporated in Hamilton, Bermuda with its main
place of business being Bermuda. LOF is the owner of six
JA-26
tankers. Those tankers, with a combined capacity of 618,006
deadweight tons, are registered in the Port of Lon. 1, United
Kingdom. All are classed with Lloyd's Register of Shipping
("Lloyd's"). All of LOF's tankers comply with applicable
British, international, U.S. Coast Guard, and Lloyd's
operational, manning, training, equipment and safety
requirements.
3. LOF tankers routinely call at terminals and facilities on
the west coast of the United States. Recent port calls include:
Point Wells, Washington; Willsbridge, Oregon; San
Francisco, California; Richmond Long Wharf, California;
Martinez, California; Benicia, California; Los Angeles,
California; Long Beach, California; El] Segundo, California;
and Huntington Beach, California. In 1996, LOF has called
twice at a terminal on the Columbia River at Point Wells,
Washington. In April 1996, the LOF tanker LONDON
SPIRIT was boarded and inspected by personnel from the
Washington State Office of Maritime Safety (OMS) to assess
compliance with the Washington State prevention plan
requirements. That vessel was returning from Point Wells and
was berthed at Willsbridge, Oregon at the time of the
inspection.
4. LOF is currently a member of the International
Association of Independent Tanker Owners
("INTERTANKO"), Oslo, Norway. LOF has been a member
of INTERTANKO since 1971. All of LOF's tankers are
enrolled in INTERTANKO.
5. Iserved as Chairman of INTERTANKO from May 1994
to May 1995. Other INTERTANKO positions I have held
include: Vice Chairman; member of the Executive
Committee; member of the INTERTANKO Council; and
Chairman of the Worldscale Committee.
JA-27
6. I participated in the deliberations of INTERTANKO to
organization that INTERTANKO is one of the few, if not the
only, organization in the world which could protect tanker
owners’ interests in effective and uniform environmental and
safety regulations. As far as I am concerned, INTERTANKO
has always promoted rational environmental measures and has
worked to oppose unrealistic or ineffective safety measures.
INTERTANKO has opposed unilateral and discriminatory
7. Prior to issuance of the regulations challenged in this
litigation, LOF had a Best Achievable Protection (BAP) plan
developed under WAC 317-20. This plan was approved by
OMS on May 13, 1994. LOF could conform with this plan
requirement because it was identical to, and indistinguishable
from, all contemporary international, national and industry
operational, manning, training, equipage and safety
requirements. As far as I am aware, this plan was reviewed
for completeness but not substance.
8. Under existing charter agreements, LOF anticipates an
increased number of calls at terminal facilities in Puget Sound
in 1996 and 1997. Consequently, LOF submitted to OMS a
BAP plan developed under WAC 317-21. This plan was
submitted on November 1, 1995. LOF incorporated into this
plan all applicable international, national and industry
operational, manning, training, equipment and safety
requirements. For those operational, manning, training,
equipage and safety specifications and/or procedures required
by the new BAP Standards which differ from those required
by British, international, U.S. Coast Guard, and Lloyd's
authorities, LOF is seeking to comply to the extent practicable
and consistent with international and national law. As far as
JA-28
I am aware, LOF's BAP plan has been reviewed for
completeness but not substance.
9. AnLOF tanker complying in all respects with applicable
to call at ports in other states of the United States may not
lawfully call at ports in the State of Washington unless it
adopts the unique additional measures required by WAC 317-
21.
10. I regard the extraterritorial influence of the management,
training, and personnel requirements of the BAP standards as
extremely distressing. The measures required under WAC
371-21 apply to LOF's operations at all times no matter where
an LOF vessel is located. In other words, compliance with
Washington State regulations extends beyond the borders of
the State of Washington and the United States and follows
LOF's operations throughout the world.
11. LOF has spent approximately $12,000 to develop, file,
and maintain a BAP plan under WAC 317-21. Because many
of the BAP’s distinct operational, manning, training,
equipment and safety requirements are being phased-in, the
expenses for compliance are on-going. Costs for meeting the
BAP training, recordkeeping and management standards have
not been calculated but will be substantial.
12. I regard the distinct and overlapping requirements of the
BAP standards as a threat to marine safety. LOF trains its
personnel, and operates and equips its tankers, to all
applicable international and national standards. The
imposition of different or peculiar requirements which vary on
a port-by-port basis in the United States will generate
confusion and misunderstanding among vessel crews and
management. This is the reason why uniform and consistent
JA-29
I declare under penalty of perjury that the foregoing is
true and correct.
Signed at London on 31 May, 1996
/s/ Miles Kulukundis
Miles Kulukundis
JA-30
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
No. 095-1096
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff.
vs.
MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MACEACHERN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,
Defendants.
DECLARATION OF RICHARD T. DU MOULIN
IN SUPPORT OF PLAINTIFF INTERTANKO
Richard T. du Moulin, having been duly sworn, testifies
as follows:
1. JI am Chairman and Chief Executive Officer of Marine
Transport Lines, Inc. ("MTL"). MTL is a Delaware
Corporation and its corporate office are located at 1200
Harbor Boulevard in Weehawken, New Jersey.
2. Through directly or indirectly owned subsidiaries, MTL
owns 5 tankers which it operates in commercial trades.
JA-31
Through a directly owned subsidiary, MTL also operates 5
tankers for third parties. The tankers owned and or operated
by MTL have an aggregate deadweight capacity of 514,006
metric tons and are registered in the United States, Liberia or
Panama. All of MTL's tankers are classed with the American
Bureau of Shipping and each complies with applicable
sehen ininieaidiamahdiantilant ionet eeaien
3. In 1994, one of MTL's tankers made a single call to the
state of Washington and in 1995, one of MTL's tankers called
upon the state of Washington twice. During the first five
months of 1996, one of MTL's tankers made one call to
Washington state. The tankers which called upon Washington
state carried crude oil, molten sulphur, chemicals, anhydrous
ammonia and petroleum products to the port of Kalama.
MTL's tankers also routinely call at terminal facilities located
in California, Texas, Lake Charles, the Mississippi River,
Florida, North Carolina, Philadelphia and New Jersey.
4. MTL is currently a member of the International
Association of Independent Tanker Owners
("INTERTANKO"), Oslo, Norway and has belonged to
INTERTANKO since approximately 1982. All of MTL's
tankers are enrolled in INTERTANKO.
5. I was elected Chairman of INTERTANKO in May of
1996. Prior to becoming INTERTANKO's chairman, I served
as INTERTANKO's Vice Chairman, amember of its Executive
Committee and a member of the INTERTANKO council.
6. I participated in the careful deliberations of
INTERTANKO which led to the commencement of this
action. Consistent with its mandate to promote, on a global
basis, the interests of tanker owners and tanker operators,
INTERTANKO believes that its members, as well as the ports
JA-32
upon which their vessels call, are entitled to effective,
comprehensive and uniform environmental and safety
regulations. Given its broad based membership,
INTERTANKO believes that it is particularly well qualified
to advance these goals. It is my belief that INTERTANKO
has always promoted rational measures to protect the
environment while working to oppose unrealistic or poorly
crafted safety measures. INTERTANKO has been especially
concerned over safety and environmental regimes which
deviate from uniform international standards and has devoted
particular effort to oppose them.
7. Prior to issuance of the regulations challenged in this
action, MTL develpoed a BAP plan as required by WAC 317-
20 (the "WAC 20 Plan") which was approved by the
Washington State Office of Marine Safety (OMS). Because
the WAC 20 Plan approved by the state of Washington was
based upon the governing international, national and industry
requirements by which its tankers are bound, MTL
experienced little difficulty in meeting the requirements of the
WAC 20 Plan. It is my understanding that the WAC 20 Plan
was reviewed for completeness but that an analysis of its
substantive content was never undertaken.
8. Under the terms of the charter parties by which MTL's
tankers are employed, each tanker must be qualified for the
worldwide carriage of liquid bulk cargoes, including the
carriage of such cargoes to the State of Washington. To be
certain that MTL's tankers may be gainfully employed, MTL
submitted to OMS a BAP plan developed under WAC 317-21
(the "WAC 21 Plan"). Incorporated into the WAC 21 Plan
were all applicable international, national and industry
requirements. To the extent that the operational, manning,
JA-33
required by the WAC 21 Plan differ fform those required by
the respective registries of MTL's tankers and the governing
international, U.S. Coast Guard, and classification
requirements, MTL is seeking, to the extent practicable, to
comply with well established norms of national and
international law. It is my understanding that the WAC 21
Plan was reviewed for completeness but that an analysis of its
substantive content was never undertaken.
9. Notwithstanding perfect compliance with all applicable
national and international laws, no MTL tanker may lawfully
call upon ports located within the State of Washington unless
prescribed by WAC 317-21.
10. The management, training, and personnel requirements
arising from BAP, and the extraterritorial application of those
of requirements by the state of Washington, are of extreme
concern to me. It is my understanding that the measures
required by WAC 317-21 apply to MTL's operations at all
times, regardless of the location of a MTL vessel. This means
that the regulations of Washington State extend beyond its
borders, beyond the borders of the United States and follow
each of MTL's tankers as they trade anywhere in the world!
11. MTL has spent a substantial sum to develop, file and
maintain the WAC 21 Plan. As MTL phases in BAP's distinct
operational, manning, training, equipment and safety
requirements, the expense of compliance will increase. For
example, one MTL tanker is currently scheduled to be fitted
in September with a $50,000 towing arrangement which
complies with WAC 317-21-265(2). The cost of installation
will be at least $30,000. The cost of meeting the BAP
training, record keeping and management standards will also
be substantial and ongoing.
JA-34
12. I consider the distinct, confusing and overlapping
requirements arising from BAP to constitute a material threat
to the well established and time tested standards which govern
marine safety on a worldwide basis. MTL has a long history
of strict and comprehensive compliance with all applicable
national and international standards in the training of its
personnel, the design of ‘*s vessels, the equipment with which
they are provided and the manner in which they are operated.
Despite its good faith concerns for safety and the
environment, I believe that the imposition by the state of
Washington of different, peculiar or inconsistent requirements
is almost certain to generate precisely the kind of confusion
and misunderstanding which the current national and
international regimes were created to avoid. This confusion
and misunderstanding can only have negative consequences.
I declare under penalty of perjury under the laws of the
State of New Jersey that the foregoing is true and correct.
Signed at Weehawken, New Jersey on May 30, 1996.
/s/ Richard T. du Moulin
Richard T. du Moulin
JA-35
STATE OF WASHINGTON
OFFICE OF MARINE SAFETY
September 15, 1995
Chronos Shipping Co., Ltd.
41 Akti Miaouli
185 35 Piraeus, Greece
Re: WASHINGTON STATE OIL SPILL PREVENTION
PLAN REQUIREMENTS
Dear Sirs:
On August 24, 1995, the tank vessel ASPHALT CHAMPION
entered Washington waters en-route to Portland, Oregon.
Washington state rules require tank vessels to submit an Oil
Spill Prevention Plan before entering Washington waters. To
date, the Office of Marine Safety has not received a
prevention plan for the ASPHALT CHAMPION. Enclosed is
a Notice of Determination regarding this violation.
We note on January 27, 1994, MARISPOND Inc. submitted
a minimum compliance prevention plan to OMS for the
ASPHALT CHAMPION and other tank vessels that your
company operates. On July 7, 1995 Washington State Oil
Spill Prevention Plan rules became effective and required tank
vessel owners to submit new prevention plans. Also at this
time OMS mailed out a copy of the final rules and a copy of
the model prevention plan for tank vessels to all companies
that submitted minimum compliance prevention plans.
Under the Revised Code of Washington (RCW) 88.46.040,
88.46.80 and Chapter 317-21-020 Washington Administrative
Code (WAC) the owner of a tank vessel is required to submit
a Oil Spill Prevention Plan before the vessel enters
Washington waters. On September 6, 195 an inspector from
JA-36
this office contacted the vessel's Master and Agent to discuss
prevention plan submission requirements. Our prevention plan
rules contain Best Achievable Protection standards that tank
vessels must comply with when operating in Washington
waters. Enclosed are copies of RCW 88.46 and Chapter 317-
21 WAC. Also enclosed is a Model Oil Spill Prevention Plan
for Tankers.
If you have any questions or require assistance, please contact
me at (503) 229-6541, fax (503) 229-6954.
Sincerely,
/s/ John Jenicek
John Jenicek
Field Office Supervisor
Enclosures
cc: Rebecca Vandergriff, Assistant Attorney General
Crossway Navigation
MARISPOND
USCG Marine Safety Office Portland
Sunrise Shipping (Portland)
'
»
JA-37
Office of Marine Safety
Olympia, Washington
Date of Issuance: 09/15/95
Vessel Name: ASPHALT CHAMPION
Lloyd's Number: 7329699
NOTICE OF DETERMINATION
TO: Chronos Shipping Co., Ltd.
Address: 41 Akti Miaouli, 185 35 Pireaus, Greece
The Office of Marine Safety (OMS) has determined that you,
as Owner or operator of the M/V ASPHALT CHAMPION
have violated, are violating, or created a substantial potential
to violate the provisions of Chapter 88.46 Revised Code of
Washington (RCW) as described below. Upon receipt of this
Notice of Determination, Chronos Shipping Co., Ltd. has 30
days under RCW 88.46.070 to submit a full, written report to
the Office of Marine Safety, stating what steps you have taken
or are taking, or both, to comply with this Notice. See RCW
88.46.070(2).
Failure to timely or adequately respond to this Notice may
result in an Administrative Order requiring compliance or
assessing penalties or both.
DETERMINATION:
The vessel) ASPHALT CHAMPION entered Washington
waters on September 6, 1995. The vessel is certified by the
flag state of Malta to carry oil in bulk as cargo and, therefore,
meets the definition of a tank vessel under the Washington
Administrative Code (WAC) 317-05-020(21). Under the
Revised Code of Washington (RCW) 88.46.040, 88.46.080
and WAC 317-21-020, the vessel's owner or operator was
required to submit an Oil Spill Prevention Plan demonstrating
No. CR-95-001
JA-38
compliance with Best Achievable Protection standards for the
ASPHALT CHAMPION to the Office of Marine Safety prior
to the vessel entering Washington waters. The Office of
Marine Safety had no prevention plan on file for this vessel
prior to its entry into Washington waters. |
Within 30 days of receipt of this Notice submit the following
to Office of Marine Safety:
¢ A written report, in English, describing how you intend
to comply with Chapter 317-21 WAC. The submission of
an Oil Spill Prevention Plan, demonstrating compliance
with best achievable protection standards, will satisfy this
requirement.
By the authority granted Barbara Herman,
Director, Office of Marine Safety
/s/ John Jenicek
Field Office Supervisor, Columbia River
JA-39
U.S. Department of Transportation
United States Coast Guard
JUN 22 1995
Ms. Barbara Herman
Administrator
State of Washington
Office of Marine Safety
711 State Avenue NE
P.O. Box 42407
Olympia, WA 98504-2407
Dear Ms. Herman:
I am happy to note that the Memorandum of Agreement
(MOA) on oil pollution, prevention and response, between the
Coast Guard and the State of Washington, was signed by the
Commander, Thirteenth Coast Guard District and your
Governor an April 24, 1995. This agreement now lays a solid
foundation upon which the State of Washington and the
Thirteenth Coast Guard District can build a partnership to
minimize duplicative efforts, leverage resources, and eliminate
existing or potential barriers to trade. I strongly encourage a
continuation of the on-going cooperative dialogue with the
Thirteenth Coast Guard District in order to most effectively
pursue our mutual goals of marine safety and environmental
protection. -
I would also like to take this opportunity to further our
discussion from our meeting of December 16, 1994 and
clarify some of my concerns with your letter of April 19,
1995. In that letter, you reference a Coast Guard quote
supporting state’s rights. The referenced quote also stated, in
part, "We must, however, also be mindful of our international
agreements". This applies not only with our bilateral
agreements with Canada on vessels in U.S. waters, as a result
JA-40
of the Cooperative Vessel Traffic Management Agreement,
but also with equipment, construction, manning, licensing and
other existing regulations and initiatives, including those of
the International Maritime Organization. Many U.S. statutes
and regulations enforced by the Coast Guard are in
furtherance of our international commitment. Should widely
disparate state requirements be implemented, the possibility
arises that compliance with federal and state regulations either
becomes a physical impossibility or the state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress. A patchwork of
differing and conflicting coastal state and local regulatory
initiatives would be confusing to the users and may actually
degrade maritime safety and environmental protection.
While section 1018 of the Oil Pollution Act of 1990 (OPA 90)
states that nothing in OPA 90 or the Act of March 3, 1851,
shall be construed as preempting the authority of any state
from imposing any additional liability or requirements
respecting the discharge of oil or any removal activities, the
Coast Guard does not regard this as a Congressional
expression altering the traditional relationship between federal
and state governments. Rather, it permits states to impose
additional liabilities or requirements with respect to the
discharge of oil or removal activities in connection with a
discharge within the State of Washington in a manner that
does not contravene the federal scheme. Thus, I continue to
believe that most standards which apply to vessels trading
internationally or between states remain the responsibility of
the federal government. It does not give the State of
Washington any additional power or authority that did not
exist prior to the passage of the act.
In addition, I do not share your opinion that federal and
international regulations are "minimal". In my view, current
JA-41
standards, and the processes in place to develop and improve
these standards, reflect decades of practical experience and the
current state of usable technology and produce a high level of
safety for today and will meet the challenges of the future.
In response to Presidential direction, the Coast Guard is
conducting a detailed review of all our existing regulations.
One of the goals of this effort is to increase consistency by
aligning our regulations to the greatest degree possible with
existing international standards. Similar efforts in Washington
State would be appreciated.
The door of the Coast Guard is always open. My headquarters
program managers continue to provide guidance and
comments to the Thirteenth Coast Guard District on
Washington State initiatives. I urge the closest possible
alignment of state regulatory efforts with federal and
international standards and initiatives. I strongly encourage
routine meetings between yourself and your staff, and
Admiral Lockwood and his staff at the Thirteenth Coast
Guard District in Washington State. I firmly believe that,
during these periods of scarce resources, there is more than
adequate room on the waterfront for many agencies to work
cooperatively and leverage our resources for the benefit of the
public. By doing so, we can build on each others successes.
Sincerely ,
/s/ J.C. Card
J.C. CARD
Rear Admiral, U.S. Coast Guard
Chief, Office of Marine Safety,
Security and Environmental Protection
JA-42
Memorandum
U.S. Department of Transportation
United States Coast Guard
Subject: REVIEW OF CALIFORNIA OIL SPILL
PREVENTION AND RESPONSE ACT
Date: 30 JAN 1991
16455
From: Chief Counsel Reply to: G-LMI 7-1527
Attn of: Mr. Presley
To: Chief of Staff
1. As you requested I have reviewed the Lempert-Keene-
Seastrand Oil Spill Prevention and Response Act ("OPRA")
enacted by the California Legislature during its last session.
OPRA is one of the several State oil pollution statutes which
have been enacted in the aftermath of the Exxon Valdez
incident. It provides a good example of the ways in which
States are extending the exercise of their police powers to
protect their citizens from oil pollution and its effects.
2. The Coast Guard’s interest in such State statutes stems
primarily from the way in which the regulatory and
enforcement regimes which they create, conflict or
complement related regimes administered by this agency. A
major consideration in this regard is whether the Federal
Preemption Doctrine restricts States’ authority to regulate
conduct or carry out enforcement in particular areas. In the
course of similar review of an emergency order issued by the
Alaska Department of Environmental Conservation, this
Office prepared a Legal Memorandum, attached herewith as
Enclosure (1), a portion of which set out the law relating to
JA-43
3. Enclosure (1) sets out a "two tier" analytical approach to
the issue of Federal preemption, based largely on principles
discussed in Ray v. Atlantic Richfield, 98 S.Ct. 988 (1978),
and Chevron v. Hammond, 726 F.2d 483 (1984). Enclosure
(2) builds on Enclosure (1), setting out a model which may be
applied to the provisions of any State oil pollution statute.
Specific provisions of OPRA are then analyzed within the
model, demonstrating thereby the manner in which the
Federal Preemption Doctrine has constrained, or may be
expected to constrain, the exercise of the State’s police
powers.
/s/ P.E. Versaw
P.E. VERSAW
Encl: (1) G-L Memo 16451/16601 of 6 Jul 89
(2) Application of the Federal Preemption Doctrine
to State Oil Pollution Statutes; an analytical
model
JA-44
APPLICATION OF THE FEDERAL PREEMPTION
DOCTRINE STATE OIL POLLUTION STATUTES:
AN ANALYTICAL MODEL
Introduction
In the aftermath of the Exxon Valdez incident, a number
of States have enacted statutes which establish, or revise
existing, laws dealing with oil pollution prevention,
preparedness, response (including response financing),
liability, and compensation.
This memorandum sets out a model by which the legal
impact and relationship of those laws to related Federal laws
administered and enforced by the Coast Guard may be
measured. It builds upon a detailed memorandum ("G-L
memo") prepared by the Chief Counsel of the Coast Guard
(file no. 16451/16601, dated 6 July 1989) which examined an
emergency order issued by the Alaska Department of
Environmental Conservation following the grounding of the
Exxon Valdez. It takes account of the effect of the recently
enacted Oil Pollution Act of 1990 (OPA90), Public Law 101-
380, and applies the model to the Lempert-Keene-Seastrand
Oil Spill Prevention and Response Act (OPRA) enacted by
California in September 1990.
I. THE ANALYTICAL MODEL
General. The model consists of three parts: (A) Whether
the State statute being examined contains elements which, per
Se, are preempted by Federal law, or, which could be
implemented in a manner which could result in application of
the preemption doctrine; (B) Whether the elements which
could be implemented in a manner which could result in
preemption are limited by provisions specifically designed to
avoid that result; and (C) Whether provisions designed to
JA-45
avoid preemption or otherwise accommodate Federal law give
rise to additional legal complications.
PartA - DOES THE STATE STATUTE CONTAIN
ELEMENTS WHICH EITHER (1) ON THEIR FACE ARE
PREEMPTED BY FEDERAL LAW OR (2) COULD BE
IMPLEMENTED IN A MANNER WHICH COULD
RESULT IN THE APPLICATION OF THE PREEMPTION
DOCTRINE?
At the outset, it must be recognized that there is a general
bias against invocation of the preemption doctrine where
federal and state oil pollution statutes are in tension. In Askew
v. American Waterways Operators, Inc., 93 S.Ct. 1590
(1973) (analyzing a Florida pollution statute), the Supreme
Court called attention to the principle “that sea-to-shore
pollution [is] historically within the reach of the police power
of the States", at 1601. A short time later the Court in Ray v.
Atlantic Richfield Co., 95 S.Ct. 988, 994, (1978) (analyzing
a Washington pollution statute) noted, " ‘we start with the
assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.’ " (Quoting from
Rice v. Santa Fe Elevator Corp., 97 S.Ct. 1146, 1152
(1947)).
Applying that principle, the Court has devised a "two
tier" analytical approach. The "first tier" looks to "whether
Congress has either explicitly or implicitly declared that the
States are prohibited from regulating" the subject matter in
question. Ray at 994. The implication referred to may be
drawn in several ways. Again drawing from Ray's reference
to Rice: " ‘The scheme of federal regulation may be so
pervasive as to make reasonable the inference that Congress
left no room for States to supplement it. ... Or the Act of
Congress may touch a field in which the federal interest is so
JA-46
dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject. ... Likewise,
the object sought to be obtained by the federal law and the
character of obligations imposed by it may reveal the same
purpose’ ". Ray at 994. As to the last point, however, see
Florida Lime & Avocado Growers, Inc. v. Paul, 83 S.Ct.
1210 (1963), as quoted in Chevron U.S.A., Inc. v. Hammond,
726 F.2d 483, 497 (1984), " ‘The test of whether both federal
and state regulations may operate, or the state must give way,
is whether both regulations can be enforced without impairing
the federal superintendence of the field, not whether they are
aimed at similar or different objectives.’ "
The G-L memo describes the "second tier" as “even if
Congress has not entirely displaced State regulation over the
matter in question, State law is still preempted to the extent
that it actually conflicts with Federal law, [citation omitted],
or where the State law stands as an obstacle to the
accomplishment of the full purposes and objectives of
Congress. [citation omitted]." See Ray at 994.
-- First tier example
In Ray, the Supreme Court applied the explicit
pronouncement of Congress set out in 46 U.S.C. 215 and 364
(currently 46 U.S.C. 8501 and 8502) relating to pilotage, and
held: (1) that the State (Washington) law requiring enrolled
(i.e. those operating in the coastwise trade) tankers to take on
State licensed pilots was invalid, and (2) that the State was
free to require tankers operating on registry (i.e. those
operating in the foreign trade) to take on such pilots. Ray at
995.
The Court continued this first tier analysis and by
considering the implication to be drawn from _ the
comprehensive nature of the Tank Vessel Act, 46 U.S.C.
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391a (currently 46 U.S.C. Chapter 37) concluded that "[t}he
Supremacy Clause [of the Constitution] dictates that the
federal judgment that a vessel is safe to navigate United States
waters prevail over the contrary state judgment" and that
"Congress anticipated tie enforcement of federal standards
that would pre-empt state efforts to mandate different or
higher design requirements." Ray at 998.
On the other hand, the Court explained, "Similar in its
nature to a local pilotage requirement, a requirement that a
vessel take on a tug escort when entering a particular body
water is not the type of regulation that demands a uniform
national rule." Ray at 1005.
-- Second tier example
The G-L memo called attention to the conflict between a
requirement to be imposed by the Alaskan Emergency Order
under review and existing Coast Guard regulations relating to
vess.l communications issued under the Port and Waterways
Safety Act. One of the directives in the Emergency Order,
designed to improve pollution response capability, would
require “the Alyeska Marine Terminal to maintain direct
radio contact with the bridge of each inbound/outbound
tanker, accompanying tugs, and Alyeska’s oil spill response
vessels while an incoming or outgoing tanker is located at any
point between the terminal and Hinchinbrook Entrance."
The G-L memo then noted that a number of Prince
William Sound Vessel Traffic Service regulations at 33 CFR
Part 161 address radio communication requirements. The
memo concluded that the State requirement might adversely
impact on safe navigation in Prince William Sound, the
purpose underlying the Federal regulations due to the
following conflicting impacts:
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a) the difficulty for the vessel to monitor a frequency in
addition to that required for the Vessel Traffic Center;
b) the resultant background noises on the bridge
affecting concentration; and
c) the practical limitations imposed on a master’s ability
to respond quickly to an incident by the need to make multiple
reports.
Part B - ARE THE ELEMENTS OF THE STATE LAW
WHICH COULD BE IMPLEMENTED IN A MANNER SO
AS TO RESULT IN PREEMPTION LIMITED BY
PROVISIONS SPECIFICALLY DESIGNED TO AVOID
THAT RESULT?
The U.S. Court of Appeals for the Ninth Circuit, in
Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (1984), had
before it an Alaska statute prohibiting the discharge of ballast
water from tankers into the waters of Alaska. Plaintiffs
asserted that the State statute conflicted with Federal law ina
number of ways. While the court rejected those arguments
with respect to one regulatory area (Coast Guard regulations
prohibiting certain tankers from storing ballast in cargo tanks
unless required by emergency weather conditions); the court
took pains to explain, "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 it clear that it would not
apply in cases where safety reasons dictated non-compliance."
(Emphasis added.) Hammond at 499.
The principle to be applied in this part of the model is
found in Hammond at 496 where the court quoted from
Merrill Lynch, Pierce, Penner & Smith v. Ware, 94 S.Ct. 383
390 (1973), which itself was quoting from Silver v. New York
Stock Exchange, 83 S.Ct. 1246, 1259 (1963), "Moreover state
JA-49
law should be preempted " ‘only to the extent necessary to
protect the achievement of the aims of the [federal act in
question].* " Consequently, substantial weight should be given
to any provisions in a State statute which actually
accommodate the otherwise preemptive effect of the superior
Federal Law. :
Part C - MAY THE PROVISIONS DESIGNED TO AVOID
PREEMPTION OR OTHERWISE TO ACCOMMODATE
FEDERAL LAW GIVE RISE TO ADDITIONAL LEGAL
COMPLICATIONS?
States’ attempts to avoid the effects of preemption or
otherwise to accommodate their laws to the Federal regime,
either by cross references to Federal requirements or by a
deferral to Federal action, must be examined. Sometimes State
legislatures are not familiar with the applicable provisions of
the Federal statutes and regulations to which they refer or
defer in laws they enact. While this part of the model is not
directly concerned with the application of the Federal
Preemption Doctrine it is useful to be aware of inappropriate
references so as to be prepared for the problems which may
arise when States attempt to implement such laws.
An example of an inappropriate reference which has
appeared a number of times in various state oil pollution
liability statutes or their implementing regulations concerns
financial responsibility requirements. While, Federal oil
pollution financial responsibility requirements do not preempt
similar requirements imposed by states as a l/ega/ matter,
vessel insurers have traditionally been reluctant to certify
insurance coverage against State oil pollution liability.
Consequently, as a practical matter some States were willing
to accept certification in accordance with the requirements of
subsection (p) (recently superseded by OPA 90) of section
311. Federal Water Pollution Control Act (FWPCA) as
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meeting the State law imposed requirement for coverage of
such liability. Such reliance was, of course, illusory. The
financial responsibility required under section 311 (p)
FWPCA was limited to the coverage of section 311's
prescribed liability for Federal removal costs. In the event of
an oil pollution incident, States and their citizens which relied
on this Federal certification would have found themselves
without protection. More importantly, litigation to recover
costs and damages pursuant to State liability regimes might
well have complicated recovery for Federal removal costs
under Federal regimes.
APPLICATION OF THE MODEL TO RELEVANT FEDERAL
LAWS
General. In applying a first tier analysis under Part A of
the model described above, it would be useful to keep in mind
some of the Federal statutes whose provisions may be
commonly expected to bear upon the question of preemption
as applied to State oil pollution laws. For this purpose the
relevant Federal statutes fall into the following categories:
a) those which by their terms explicitly preclude State
regulation in the same area;
b) those which, by themselves or in conjunction with
others, demonstrate an implicit Congressional intent to
preclude State regulation in the same area.
c) those which by their terms explicitly express a
Congressional intent not preclude State regulation in the same
area; and
d) those which neither explicitly nor implicitly
demonstrate a Congressional intent to preclude or not to
preclude State regulation in the same area.
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Second tier analysis ("where compliance with Federal and
State regulations is a physical impossibility" or the State law
“stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress") is not necessary
except for those statutes within categories (c) and (d) above.
The specific terms of the federal laws in those categories and
State law provisions must be examined, and, only when there
is an "irreconcilable conflict between the Federal and State
standards" will that specific State law provision be preempted.
(See the G-L memo for citations to the references within
quotation marks.)
The Federal statutes which most often may be expected
to relate to State oil pollution statutes are the following:
[NOTE: this list should not be considered to be
exhaustive. It focuses on those statutes whose provisions
are most directly related to provisions of the California
Statute currently being examined. ]
i) Subtitle II of title 46 U.S. Code;
ii) Port and Waterways Safety Act, (33 U.S.C. 1221 er
seq.);
ili) Federal Water Pollution Control Act, Section 311
FWPCA, (33 U.S.C. 1321);
iv) Oil Pollution Act of 1990, Title I (33 U.S.C. 2701 er
seq.).
(i) Subtitle Il of title 46 U.S. Code
This law deals with a broad range of merchant vessel and
vessel personnel regulation. As noted above, the decision in
Ray addressed the question of pilotage and tanker construction
and design standards.
JA-52
Pilotage
The provisions of this subtitle concerned with pilotage
fall within category (a) (with respect to enrolled vessels) and
category (c) (with respect to vessels under registry and
foreign vessels. )
Tanker Construction and Design
The provisions of this subtitle concerned with tanker
construction and design fall within, category (b).
Vessel Equipment for Safety
The provisions of this subtitle concerned with safety
requirements for equipment have not been addressed by the
courts. However, equipment safety regulation pursuant to the
Ports and Waterways Safety Act was referred to in Ray where
the Court found an implied Congressional intent to preclude
state regulation. Consequently, it is probable that provisions
of subtitle I] concerned with equipment regulation and
requirements for the purpose of promotion safety, fall within
category (b).
Vessel Personnel Qualification and Competence
The provisions of subtitle II concerned with vessel
personne! qualification and competence have, similarly, not
been addressed by the courts as to their preemptive effect.
However, a strong argument can be made that vessel
personnel qualification and competence regulation has been
traditionally viewed as exclusively within Federal
competence. Furthermore, the same considerations requiring
exclusivity in vessel safety regulation referred to in Ray,
would apply in this area as well. Finally the extent to which
the Coast Guard has exercised its regulatory authority in this
field with Congress’ acquiescence leads to an implication of
Congressional intention that this area should be solely the
JA-5S3
province of Federal regulation. As a consequence it is
reasonable to conclude that the provisions of subtitle II
concerned with vessel personnel and competence fall within
category (b).
(ii) Ports and Waterways Safety Act
As explained in the G-L memo, the Ports and Waterways
Safety Act places the Federal government in the primary role
insofar as vessel safety is concerned.
Vessel Equipment and Navigation for Safety
The statute provides authority for vessel navigational
regulation, including size limitation. In Ray, at 1002, the
Court expressed the view that Washington’s statutory limit on
tanker size was invalid due to the authority provided, and in
fact exercised, under the predecessor statute to the Port and
Waterways Safety Act. The Court reasoned that this was the
case even though there was no specific conflict between the
Coast Guard’s regulation and the applicable state statute.
It was enough that Congress had provided broad authority
and responsibility to consider all interests and to assure
consistency in prescribing the necessary regulatory regime.
The Coast Guard’s execution of this authority was sufficient
to oust the State of its competence to regulate in the field.
Language in Ray makes it clear that this principle applies to
vessel equipment as well as vessel navigation. Therefore, it is
clear that the provisions of the Act authorizing regulation of
vessel equipment and navigation for safety purposes fall
within category (b).
Structural Safety
There are two areas where parallel State regulatory
authority is preserved under the Port and Waterways Safety
Act. By its own terms the Act authorizes State regulation of
JA-54
structure safety. These provisions therefore fall within
category (c).
Tug Escorts
The one area where the Ray decision, at 1005, found that
the States have retained the authority to prescribe vessel
related requirements concerns [ug escorts.
(iii) Federal Water Pollution Control Act, Section 311
FWPCA, (33 U.S.C. 1321)
Matters subject to regulation under section 311 FWPCA
are:
a) the prohibition of oil and hazardous substance
discharges;
b) discharge notification requirements;
c) the authorization to undertake response measures
and to obtain judicial assistance where necessary;
d) the organization of response activities
(contingency plans, response units, response groups, area
committees, etc.);
e) liability relating to the discharge of oil or
hazardous substances;
f) methods and procedures for removal of
discharged oil and hazardous substances;
g) criteria for local and regional contingency plans;
h) procedures, methods, and equipment and other
requirements for equipment to prevent, contain and remove
discharges of oil and hazardous substances;
i) the inspection of vessels, removal equipment,
and cargoes of oil; and
JA-55
j) tank vessel and facility response plan
requirements.
As amended by OPA90, section 311(0)(2) FWPCA provides:
(2) Nothing in this section shall be construed as
preempting any State or political subdivision thereof
from imposing any requirement or liability with
respect to the discharge of oil or hazardous substance
into any waters within such State, or with respect to
any removal activities related to such discharge.
Consequently, all of the provisions of section 311 FWPCA
fall within category (c).
(iv) ‘ie Pollution Act of 1990, Title I (33 U.S.C. 2701, et
seq.
Title I of OPA90 applies to the following areas:
a) oil pollution liability:
b) funding for compensation for providing response
financing and supplementary compensation for costs and
damages related to oil pollution;
¢) compulsory financial responsibility for liability
Section 1018 of OPA90 provides that nothing in the Act
shall affect or be construed or interpreted as preempting the
authority of any State or political subdivision from imposing
any additional liability or requirements respecting the
discharge of oil or other pollution by oil within such State or
any removal activities in connection with such a discharge.
Similarly, a clear disclaimer of preemption is set out with
respect to State funds and criminal and civi) sanctions
prescribed under State law relating to the discharge or
substantial threat of a discharge of oil.
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Consequently the provisions of title | of OPA9O fall
within category (c).
{[NOTE: Section 1018 of OPA90 refers to “this Act”
in its disclaimer of preemption. Since OPA9O in other titles
amends a number of provisions of subtitle II of title 46 U.S.
Code, there may be some concerns that Congress intended to
affect the preemption situation relating to those provisions as
well. However, the provisions of section 1018 apply only to:
the discharge or substantial threat of oil or other pollution,
removal activities, and funds. These matters are not the
subject of any provision of subtitle I] amended by sections in
other titles of OPA90; therefore, Section 1018 does not apply
to those amendments. }
Summary of Model
Part A - Does the State statute contain elements which either
(1) on their face are preempted or (2) could be
implemented in a manner which would result in
preemption?
First tier: | What is the Federal statute which is most
relevant to the State statute being
examined? What is the category of that
Federal statute?
Second tier: If a category (c) or (d) Federal statute is
relevant, is there or could there be a direct
conflict between the State statute or its
implementation and the Federal Statute and
its implementation?
Part B - Are the elements of the State law which could be
implemented in a manner so as to result in
preemption limited by provisions designed to avoid
that result?
JA-57
Part C - May the provisions designed to avoid preemption or
otherwise accommodate Federal law give rise to
additional legal complications? (Are there other legal
complications of interest to the Coast Guard?
Il. APPLICATION OF ANALYTICAL MODEL TO THE
CALIFORNIA STATUTE
Introduction
The analytical model described above now will be applied
to the Lempert-Keene-Seastrand Oil Spill Prevention and
Response Act (OPRA) recently enacted by California.
Reference is made only to those provisions of OPRA which
may give rise to questions concerning the application of the
Federal Preemption Doctrine, specifically with respect to the
Federal statutes listed in Part I. The provision to be examined
will be identified together with its subject matter, followed by
the application of the model. For purposes of simplicity the
provision will be identified by the indicated section or article
number rather than by its specific location in the Codes of
California .
Section 8670.7 - Administrator's Authority Respecting
Response
Part A - Answer to question: Possible preemption.
First tier: Relevant Federal statute - section 311
FWPCA [category (c)].
Second tier: Possible conflict if Administrator uses
’ ithout Federal ade
Part B- Answer to question: Yes, Administrator must consult
with and cooperate with Federal On Scene
Coordinator
Part C - Answer to question: No other complications.
JA-S8
Section 8670.9 Administrator To Develop Compact With
Other States
Part A - Answer to question: Possible preemption.
First tier: Relevant Federal statutes: Section 311,
FWPCA [category (c)], and Ports and
Waterways Safety Act (vessel safety and
traffic) [category (b)).
Second Tier: Possible conflict if compact seeks to
regulate.
Part B- Answer to question: Yes, Administrator must
coordinate development of the compact with the
Coast Guard.
Part C - Answer to question: No other complications.
Section 8670.10 - Administrator To Conduct And Set
Standards For Drills
Part A - Answer to question: Possible preemption.
First tier; Relevant Federal statute: Section 311,
FWPCA [category (c)}.
Second tier: Possible conflict if standards conflict with
Federal standards.
Part B - Answer to question: No.
Part C - Answer to question: No other complications.
Section 8670. 16 - Administrator To Promote Federal Adoption
of Laws
Part A - Answer to question: No preemption.
JA-59
First tier: Relevant federal statute: Ports and
Waterways Safety Act (vessel equipment
and traffic) [category (b)].
Second tier: Not applicable as no conflict.
Part B - Answer to question: Yes, Administrator limited to
pressing Federal government to adopt regulations or
statutes.
Part C - Answer to question: No other complications.
Section 8670.17 - Administrator to Regulate Vessels Indirectly
Through Terminals
Part A - Answer to question: Possible preemption.
First tier: Relevant Federal statutes - Ports and
Waterways Safety Act (equipment and
operation of vessels) and subtitle II of Title
46 U.S. Code (equipment and personnel of
vessels) [both category (b)].
Second tier: Possible conflict (tug escort) [NOTE: This
section of OPRA contains authority to
impose tug escort requirements. As noted
above, the Supreme Court in Ray held that
States were not preempted from imposing
such requirements. However, a second tier
analysis might result in preemption where
such a requirement conflicts with a Coast
Guard regulation specifically addressing tug
escort. ]
Part B - Answer to question: No.
Part C - Answer to question: No other complications.
JA-60
Section 8670.18 - Administrator To Evaluate Coast Guard
Inspection Program
Part A - Answer to question: Possible preemption.
First tier: Relevant Federal statutes: Section 311,
FWPCA [category (c)]; subtitle II of Title
46 U.S. Code [category (b)).
Second tier: Possible preemption if Administrator
adopts conflicting inspection
requirements.
PartB- Answer to question: Yes, Administrator must consult
with Coast Guard concerning State inspection and
may not duplicate Coast Guard activities.
Part C - Answer to question: No other complications.
Section 8670.20 - Tanker Or Barge Disability Notification To
Coast Guard
Part A - Answer to question: No preemption.
First tier: Relevant Federal statutes: Section 311,
FWPCA [category (c)]; subtitle II of Title
46 U.S. Code [category(b)].
Second tier: Not applicable as no conflict.
Part B - Answer to question: Yes, notification must be made
to Coast Guard.
Part C - Answer to question: Possible complication since
requirement not exactly same as Coast Guard
requirement. [Compare 46 C.F.R. Part 4.05-1); also
applies to vessel within 12 miles of the shore
(probably beyond California’s competence)].
JA-61
Section 8670.21 - Administrator To Negotiate Vessel Traffic
Service System With Coast Guard
Part A - Answer to question: No preemption.
First tier: Relevant Federal statute: Ports and
Waterways Safety Act (vessel traffic
system) [category (b)).
Second tier: Not applicable as no conflict.
Part B - Answer to question: Yes, Administrator must obtain
agreement with Coast Guard.
Part C - Answer to question: No other legal complications,
nevertheless, it may be difficult to accommodate
California and Coast Guard schedules and funding
schemes.
Section 8670.22 - Prohibition Of Vessel Violating OPA90
(Amendment to 46 U.S.C. Chapter 37) Double Hull
Requirement
Part A - Answer to question: No preemption.
First tier: Relevant federal statute: Subtitle II of title
46 U.S. Code (vessel construction)
[category (b)].
Second tier: Not applicable as no conflict.
Part B - Answer to question: Yes, as merely enforcement of
Federal statute.
Part C - Answer to question: May be complications as to
enforcement.
Article 4 - Oil Spill Response and Article 5 - Contingency
Planning and Articles 6 & 7 - Funds
Part A - Answer to question: Possible preemption.
JA-62
First tier: Relevant Federal statutes: Section 311
FWPCA and OPA 90 [both category (c)].
Second tier: Possible conflict re Articles 4 & Sif
regulations in conflict with Federal regime.
Part B - Answer to question: Oil spill response subject to
Coast Guard direction.
Part C - Answer to question: No other complications.
Section 8670. 30 - Interim Vessel Contingency Plan, Including
Proof of Financial Responsibility as Provided by Federal Law
Part A - Answer to question: Possible preemption.
First Tier: Relevant Federal statutes: Section 311,
FWPCA and OPA90 [both category (c)].
Second Tier: Possible conflict if Administrator
adopts conflicting requirements.
Part B - Answer to question: Yes certain requirements must
be consistent with National Contingency Plan;
financial responsibility provided under Federal law
accepted. :
Part C - Answer to question: Virtually certain to have
additional complications stemming from acceptance
of "Federal" (i.e. presumably under OPA90)
financial responsibility proof
- complication # 1 - Federal financial
responsibility applies only to OPA90
liability regime
- complication # 2 - OPRA requires that the
State of California be named on the policy
as an additional insured; that is inconsistent
with Coast Guard requirements, and P & I
cover for vessels does not now name
JA-63
additional insured and would be most
unlikely to do so for California.
Section 8670.37.51 - Financial Responsibility
Part A - Answer to question: No preemption.
First tier: Relevant Federal statute: OPA90 [category
(c)).
Second tier: Not applicable as no conflict.
Part B - Answer to question: No attempt to accommodate
Federal law.
PartC- Answer to question: Since no attempt to
accommodate Federal law, no complications.
(NOTE: Possible Law of che Sea innocent passage
problem, as OPRA prohibits vessel transport of oil
“across marine waters of the state" without state
issued certificate of financial responsibility . }
Division 7.8 - Oil Spill Prevention and Response
Part A - Answer to question: Possible preemption.
First tier: Relevant federal statute - Section 311
FWPCA [category (c)].
Second tier: Possible conflict if regulations in conflict
with Federal regime.
Part B - Answer to question: Yes, regulations required to be
consistent with Coast Guard regulation; statute
requires consultation with Coast Guard.
Part C - Answer to question: No other complications.
JA-64
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
CAUSE NO. C95-1096
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff.
Vv.
MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA HERMAN, Administrator of
the State of Washington Office of Marine Safety;
DAVID MACEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,
Defendants,
V.
THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
AND OCEAN ADVOCATES, INC.,
Intervenors.
AFFIDAVIT OF C. JONATHAN NEEL
(States/British Columbia Oil Spill Task Force)
STATE OF WASHINGTON )
) ss
COUNTY OF THURSTON )
JA-65
I, C. JONATHAN NEEL, being first duly sworn on
oath, depose and state as follows:
1. I am employed by the State of Washington
Department of Ecology. Presently, I hold the position of Spill
Program Legislative and Intergovernmental Coordinator. Past
positions have included Manager of the Ecology's Spill
Management and Enforcement Section during the Nestucca oil
spill, the Matsukaze oil spill, and MCN 5 barge oil spill. A
copy of my resume is attached.
2. Washington State had experience a number of major
marine incidents immediately prior to the Exxon Valdez
including the:
SS Mobil Oil tanker spill (incident date - 3/20/84;
location - Columbia River; material spilled - 200,000
gallons heavy oil; primary cause - improper installation
of steering pin during maintenance).
Arco Anchorage tanker spill (12/21/85; Port Angeles;
239,000 gallons of crude oil; grounding as a result of
pilot error).
MCN 5 barge oil spill (1/31/88; near Anacortes; 70,000
gallons heavy oil; improper overloading of barge).
Matsukaze double hull tanker grounding (4/28/88; rocks
at Crescent Bay; no spill; officers on bridge asleep).
Nestucca barge oil spill (12/23/88; off Grays Harbor;
231,000 gallons of bunker oil; towing hawser in
extremely poor condition).
3. All of these spills were caused by human error and
clearly avoidable with relatively simple improvements in the
marine industry’s operations. The lack of adequate standards
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and regulatory oversight of the marine industry was readily
apparent to Ecology.
4. Based upon this past risk exposure, the exceptionally
high economic value of Washington's natural resources, and
the need to better coordinate West Coast spill response
activities (particularly in the aftermath of the Nestucca barge
oil spill) Ecology and the British Columbia Ministry of
Environment decided that a formal mechanism should be
established to coordinate spill related activities. In early 1989,
British Columbia Premier Vander Zalm and Washington
Governor Booth Gardner formed the _ British
Columbia/Washington Oil Spill Task Force.
5. The day after the first Task Force meeting, the
Exxon Valdez spill occurred on March 24, 1989, in Alaska.
The states of Alaska, Oregon and California joined the Task
Force soon after the Exxon spill when the four West Coast
Governors and the British Columbia Premier signed a
memorandum of cooperation. The name of the organization
was then changed to the States/British Columbia Oil Spill
Task Force (Task Force) and we began the West Coast's
coordinated approach to oil spills. The members of the Task
Force are the heads of the agencies responsible for oil spill
prevention and response on the West Coast. One staff
representative was assigned from each agency to coordinate
input into the routine business of the Task Force. I am
Ecology's representative.
6. The day to day activities of the Task Force are now
coordinated by Jean Cameron, the organization's full time
executive coordinator in Portland, Oregon. I am the Task
Force’s contract officer and manage the budget which is
funded through member contributions through contracts with
Ecology.
JA-67
7. During my early involvement with the Task Force,
the organization completed a number of independent studies.
These studies were managed by the organization's
“Prevention Alternatives Subcommittee", to which I was
Washington's representative. The findings of this
subcommittee constituted the rationale for many of the Task
Force’s recommendations. The studies were coordinated by
a Canadian consulting firm, David Dickens and Associates.
The actual studies were carried out by Dickens and a number
of subcontractors.
| 8. The Task Force decided early on to bring all of the
information generated by its committees together in one major
technical and policy document. This document was titled the
"Final Report of the States/British Columbia Oil Spill Task
Force" and published in October 1990. See Exhibit 38: Final
Report of the States/British Columbia Oil Spill Task Force.
9. The final report's recommendations were a synthesis
of all information on oil spill prevention and response readily
available at that time. In addition to the extensive Task Force
funded studies, the final report was based upon a broad array
of studies and reports for example:
The 11 recommendations presented in the report entitled
"Improving Marine Traffic Safety on Puget Sound
Waterways - A Technology Assessment" published
December 15, 1982. The report placed emphasis on
human error as a primary causative factor in vessel
issues ranging from speed limits, mariner qualifications,
enforcement, implementation of National Transportation
bridge communications.
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The 29 recommendations presented in the "Report to the
Legislature" of the Washington State Oil Spill Advisory
Committee, December 1986. This report was mandated
after the Arco Anchorage oil spill. These
recommendations addressed a range of vessel spill
prevention and response issues including bunkering and
lightering, and anchorage areas.
The 59 recommendations presented in the report of the
Alaska Oil Spill Commission entitled "Spill - The Wreck
of the Exxon Valdez - Implications for Safe Marine
Transportation," January 1990. These recommendations
addressed a range of marine safety issues including the
need to effectively regulate foreign flagged vessels,
application of best achievable technology, and the need
for vessel owner commitment to safety.
The 14 recommendations presented in the 126 page
report entitled "Issue Paper - Spill Prevention - Means of
Preventing Spills of Petroleum and Other Hazardous
Substances in Puget Sound" published by Washington
State’s Puget Sound Water Quality Authority, March
1990. (I participated in some of the committee's
deliberations.) The recommendations dealt with training
of vessel personnel, vessel design, spiller liability. and
Puget Sound’s vessel traffic system (VTS) among other
issues.
We hoped that the weight of all of the West Csast states and
province adopting the most important ideas in all of the
studies evaluated by the Task Force would provide additional
impetus for their actual implementation. The
recommendations in the Task Force report were intended to
be forwarded to and implemested by a range of entities
including: the private sector; €derai law makers and agencies;
and state and provincial lew makers and agencies.
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10. Lead authors of the final report included one
representative from each of the West Coast states and
province of British Columbia. These individuals were: Jon
Neel, Washington (overall lead author); Amy Glad,
California; John Bones, British Columbia; Bruce Sutherland.
Oregon and Lynn Kent, Alaska. Pau! Heimowitz, who at that
time worked for Washington State’s Puget Sound Water
Quality Authority, was also a major contributor.
ll. A summary of the final report was presented at
and published in the proceedings of the 1991 International
Coastal Zone Conference in Long Beach, California.
Relationship Between the Task Force Recommendations
and Washington State Legislation.
12. The Washington State Legislature passed a
number of oil spill related bills during the 3 sessions
immediately following the Nestucca and Exxon Valdez oil
spills. As head of Ecology's Enforcement and Spill
Management Section at that time, I was involved in the
development of these legislative initiatives.
These legislative actions and requests included:
* In January 31, 1989, then Ecology Director
Christine Gregoire wrote Washington's
congressional delegation requesting a number of
changes to federal law. The requests addressed oil
spill liability, navigation requirements, cil barge
double hulling, on-board spill response equipment,
changes to the federal penalty structure, and
eee en Conee Gneee: Weenel Peatie
System (VTS).
. 1989 Session - House Bill (HB) 1853 & 1854: This
legislation established a streamlined compensation
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system for damages to state natural resources
resulting from oil spills. House Bill 2242:
* 1990 Session - House Bill 2494: This legislation
established spill response requirements for certain
vessels and facilities. The Chair of the House
Environmental Affairs committee went on record
that, while the current session would focus on spill
response, the subsequent session would focus on
spill prevention. She made it clear that the
complexity of spill prevention would require more
time to complete thoughtful legislation.
* 1991 Session - House Bill 1027: This legislation
established a wide array of spill prevention
requirements and provided for a complete
recodification of all spill related statutes. Major
features of the 1991 legislation included creation of
a new revenue source, establishment of new state
agencies (including the Office of Marine Safety), and
extensive spill prevention requirements.
The 1991 legislation was drafted by the Legislature's House
Environmental Affairs committee's chief counsel with
extensive input from Ecology and the Governor's office.
Sometime following publication of the public review Draft
Task Force report in July 1990, discussions between
legislative staff, Ecology and the Governor's office took place
in earnest as to the scope of the following year’s spill
proposed legislation. Initial and later discussions (after
adoption of the final report) consciously focused on the
recommendations outlined in Task Force report as the starting
point for considering the potential array of issues to be
addressed in the legislation.
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The legislative development team wanted to make sure
adopted by the Task Force, were addressed wherever
possible. Once the legislation was drafted, extensive
consultations took place during that fall and winter with all
key stakeholders to obtain their imput on the appropriateness
of the proposed legislative concepts. By the conclusion of the
1991 session and the passage of House Bill 1027, the
following recommendations liad been addressed to some
degree by state legislation:
Joint Recommendations
Tow Cables Response Plans
Vessel Safety Measures Local Participation
Petroleum Facility Worker Clean Up Requirements
Training Vessel Inspections
Tug Crew Training Transfer Operations
Review
Strong Sanctions Wildlife Rescue Training
Proof of Financial and Equipment
Responsibility Transfer Containment
Natural Resource Valuation Incident Command
System (ICS)
Enforcement Staff
The specific information for each of these
recommendations is found in the Final Report of the Task
Force on pages 3-8. See Exhibit 38: Final Report of the
States/British Columbia Oil Spill Task Force.
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Washington Recommendations
Pilot Qualifications Barrel Tax
Federal Consistency Harbor Safety Committees
State Agencies
The specific information for each of these
recommendations is found in the Final Report of the Task
Force on pages 80-83. See Exhibit 38: Final Report of the
States/British Columbia Oil Spill Task Force.
/s/ C. Jonathan Neel
C. JONATHAN NEEL
Signed or attested before me, Laurie L. Carley, by C.
Jonathan Neel.
DATED this 3rd day of June, 1996.
/s/ Laurie L. Carley
NOTARY PUBLIC, in and for the
State of Washington.
My commission expires: 1/31/99
[SEAL]
I. Executive Summary
A. OVERVIEW
Following the 231,000 gallon (873 m’) Nestucca oil spill off
the coast of Washington in December, 1988, British Columbia
Premier William Vander Zalm and Governor Booth Gardner
of Washington established the British Columbia/Washington
Task Force on Oil Spills. The day after the first Task Force
meeting, the Exxon Valdez struck Bligh Reef in Prince
William Sound, and the Task Force membership soon
expanded to include Alaska, Oregon, and California. (Maps
1-6 illustrate petroleum transportation flows and facilities on
the West Coast and in each individual jurisdiction).
The mandate of the Task Force was to a) investigate ways and
means of preventing oil spills; b) to review oil spill response
procedures; c) document and assess the mechanisms for
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handling compensation claims; and d) to develop a
coordinated contingency plan for preventing and responding
to oil spills in the future. This goal was to culminate in the
adoption of a comprehensive set of recommendations which,
if implemented, would minimize (to the extent practicable) the
probability of major and catastrophic spills and help assure an
effective response to such incidents. The Task Force used
periodic meetings, subcommittee investigations, training
forums, and other tools to accomplish this mandate.
B. MAJOR FINDINGS
Four Task Force subcommittees produced a detailed set of
findings, many of which underlie joint and individual
recommendations. These findings can be summarized by the
following points:
1. Recent spills from the Nestucca, Arco Anchorage,
Exxon Valdez, and American Trader have revealed
significant problems in oil transportation
management, including:
Shortcomings in vessel design and integrity
Gaps in regulatory oversight
Incomplete cost recovery by states/provinces
2. Despite research in spill cleanup technology, it is
unlikely that a large fraction of oil can be recovered
from a catastrophic spill.
3. Since response efforts can not effectively reduce the
impact of large oil spills, prevention of spills must
be the prime strategy in developing solutions to this
rssue.
4. Readiness and response to smaller size spills of oil or
eno
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refined petroleum products must still be emphasized,
since muci. of the West Coast traffic is by barge and
freighters carrying fuel.
5. Comprehensive oil spill prevention demands
icipation by ind \ here. ene '
organizations, and all governmental jurisdictions.
6. The States/B.C. Task Force on Oil Spills should
continue to promote coordination of West Coast oil
spill prevention and response efforts.
C. JOINT RECOMMENDATIONS
The following recommendations have the full support of all
Task Force members. Individual recommendations by each
Task Force member are presented in the body of the report,
beginning on page 51. Recommendations have been
subdivided by the technical nature of the issues to assist the
reviewer in analyzing recommendations with similar
characteristics.
The recommendations are not in priority order; priorities are
detailed in section IV. The recommendations vary as to the
governmental body that has authority to make the suggested
changes, and will be forwarded to the appropriate
“authorizing agent" through mechanisms identified in an
implementation strategy (page 92).
The main objective of this Task Force, as reflected in the
following recommendations, is to continue to work towards
coordinated prevention and response to oil spills for the
Pacific coast. Two aspects of this effort are particularly
important: mutual assistance among the members for
catastrophic spills, and interjurisdictional for
transboundary spills. To achieve these objectives, the Task
Force will continue to work together to implement similar
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response procedures to ensure consistency among the separate
jurisdictions. To minimize the need for any response,
recommendations to prevent spills occurring along the coast
have been developed and given high priority.
Vessel Traffic Reduction
RECOMMENDATION 1: Petroleum Conservation
Implement programs designed to reduce petroleum
consumption, such as conservation measures (including
appliance and automobile efficiency standards, recycling, and
effective mass transit), alternative energy source research, and
economic incentives.
RECOMMENDATION 2: Alternative Oil Transportation
Review proposals for alternative transportation modes which
would reduce petroleum transportation by tanker in high risk
and environmentally sensitive areas. In reviewing any
proposals, Task Force members are committed to insuring
compliance with all applicable state/provincial/federal laws,
including their processes to involve the public.
Vessel Traffic Management
RECCMMENDATION 3: Tug Escorts - Single Propulsion
Require tug escorts for all single boiler or single engine, and
single screw tank vessels carrying oil or other petroleum
products in waterways designated as high risk by an
individual state or province.
RECOMMENDATION 4: Tug Escorts’ - Tonnage
Requirements
Review and, if appropriate, reduce dead weight tonnage
specifications for tug escorts requirements.
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RECOMMENDATION 5: Vessel Traffic Service Systems
Upgrade vessel traffic service systems by replacing outdated
equipment, eliminating gaps in coverage, increasing operator
training and assignment length, and establishing mandatory
participation in vessel traffic service systems in high-risk or
congested areas.
RECOMMENDATION 6: Near Miss Reporting System
Establish, on a trial basis with a subsequent assessment of
usefulness, a near miss reporting system which links directly
with vessel inspection information, vessel traffic, and vessel
casualty database systems.
RECOMMENDATION 7: Tow Cables
Develop and implement a mandatory set of guidelines for tugs
on tow cable size and material specifications, cable
maintenance practices, cable handling equipment design and
barge recovery plan preparation.
RECOMMENDATION 8: Vessel Safety Measures
Establish regional safety measures, including speed limits,
based on escort vehicle or other limitations, for all laden tank
vessels in inland waters and their critical approaches.
RECOMMENDATION 9: Tow Systems
Require towing systems and plans on all tankers carrying oil
and other petroleum products.
Vessel Design
RECOMMENDATION 10: Double Hulls
Require double hulls for all new tank vessels designed to
carry oil or other petroleum products as cargo.
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RECOMMENDATION 11: Onboard Navigation
Improvements
Require all tankers carrying oil or other petroleum products
in coastal and inland waterways to possess and operate an
onboard navigation system, such as an Electronic Chart
Display Information System (ECDIS).
Personnel
RECOMMENDATION 12: Petroleum Facility Worker
Training
Require state/province certification of training programs for
managers, workers, and safety officers at terminals which
handle oil or other petroleum products. Program certification
requirements should include spill prevention and response
training.
RECOMMENDATION 13: Mariner Qualifications
Require more stringent mariner qualifications, including spill
prevention and response training, simulator training, vessel
class and size restrictions on deck officer certification, and
alcohol and drug testing.
RECOMMENDATION 14: Tug Crew Training
Mandate oil spill response training for all tug crews involved
in tank vessel operations.
RECOMMENDATION 15: Crew Requirements
Require two licensed officers (including pilot where
appropriate) to be present on the bridge of all tankers carrying
oil or other petroleum products while in inland waterways.
Require adequate crew levels, sufficient to meet normal and
emergency operation needs, for tank vessels carrying oil or
other petroleum products.
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RECOMMENDATION 16: _—_ Dedicated Tug Crews
Assign dedicated trug crews to specific classes of tugs and
tank barges carrying oil or other petroleum products to assure
familiarity with tug and tank barge operating characteristics.
Enforcement, Penalties, and Liability
RECOMMENDATION 17: __ Strong Sanctions
Legislate strong levels of civil and criminal sanctions for
noncompliance with oil spill regulations.
RECOMMENDATION 18: Proof of Financial!
Responsibility
Raise state/Canadian federal proof of financial responsibility
requirements to ensure spillers can finance oil spill related
cleanup and damage costs.
RECOMMENDATION 19: Natural Resource Valuation
Develop and require use of methods of natural resource
valuation which fully incorporate non-market and market
values in assessment of damages resulting from spills.
RECOMMENDATION 20: Cost Recovery
Develop responsible party contracts to aid in the recovery of
all natural resource damage and cleanup costs.
RECOMMENDATION 21: _ Liability Limits
Remove any ambiguity in federal law and guarantee a state’s
right to fully exercise its own liability standard. Increase the
maximum limit of liability for oil pollution damage under
Canadian law.
RECOMMENDATION 22: — Coast Guard Enforcement
Increase the Coast Guard’s ability to conduct routine on-water
JA-80
surveillance patrols by increasing funding to U.S. Marine
Safety Offices and Canadian Coast Guard Regional Offices.
RECOMMENDATION 23: Enforcement Staff
Establish adequate environmental resource agency staffing
level devoted to enforce compliance with spill planning
requirements, and aggressively pursue legal action against
violators.
Regulatory Oversight
RECOMMENDATION 24: _ Prevention Plans
Require all facilities (and tank vessels larger than 10,000 dwt)
which handle oil or other petroleum products to develop and
implement spill prevention plans, which would at a minimum
include risk-reducing transfer methods and personnel training
specifications.
RECOMMENDATION 25: _ Response Plans
Require all facilities (and tank vessels larger than 10,000 dwt)
which handle oil or other petroleum products to develop and
implement spill response plans, which would at a minimum
include response time, equipment, and staff support
specifications.
RECOMMENDATION 26: Local Participation
Each state/province shall recognize and utilize local citizen
expertise and knowledge in spill prevention and response
efforts. This may include a volunteer training and
coordination plan to enhance preparedness.
RECOMMENDATION 27: Clean Up Requirements
Ensure that all state, provincial, and federal agencies act in
full cooperation to require the spiller or other responsible
JA-81
party to meet all applicable state, provincial, and federal
performance requirements.
RECOMMENDATION 28: _ Vessel Inspections
Require periodic (but not less than every two years) structural
and mechanical integrity inspections of vessel equipment and
hull structures on all tank vessels carrying oil or other
petroleum products. Develop a priority inspection system for
more frequent inspections of particular tanker features
essential to safety, and for certain tankers, equipment, and
companies with a history of stress fracture incidents and other
safety problems.
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Law of “he Sea Treaty Provisions
Article 1
Use of terms and scope
** *& *
2. (1) "States Parties" means States which have consented to
be bound by this Convention and for which this Convention
is in force.
(2) This Convention applies mutatis mutandis to the entities
referred to in article 305, paragraph l(b), (c), (d), (e) and (f),
which become Parties to this Convention in accordance with
the conditions relevant to each, and to that extent "States
Parties" refers to those entities.
Article25
Rights of protection of the coastal State
1. The coastal State may take the necessary steps in its
territorial sea to prevent passage which is not innocent.
2. In the case of ships proceeding to internal waters or a call
at a port facility outside internal waters, the coastal State also
has the right to take the necessary steps to prevent any breach
of the conditions to which admission of those ships to internal
waters or such a call is subject.
3. The coastal State may, without discrimination in form or in
fact among foreign ships, suspend temporarily in specified
areas of its territorial sea the innocent passage of foreign ships
if such suspension is essential for the protection of its
security, including weapons exercises. Such suspension shall
take effect only after having been duly published.
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Article38
Right of transit passage
1. In straits referred to in article 37, all ships and aircraft
enjoy the right of transit passage, which shall not be impeded:
except that, if the strait is formed by an island of a State
bordering the strait and its mainland, transit passage shall not
apply if there exists seaward of the island a route through the
a een Seren see Of senlies
convenience with respect to navigati and j
or hy igational hydrographical
2. Transit passage mear:s the exercise in accordance with this
Part of the freedom o1 navigation and overflight solely for the
purpose of continuous and expeditious transit of the strait
between one part of the high seas or an exclusive economic
zone and another part of the high seas or an exclusive
economic zone. However, the requirement of continuous and
expeditious transit does not preclude passage through the strait
for the purpose of entering, leaving or returning from a State
+. ~ pulmo tira waratescepi aaa hada
3. Any activity which is not an exercise of the right of transit
passage through a strait remains subject to the other applicable
provisions of this Convention.
1. This Convention shall be open for signature by:
(a) all States;
(b) Namibia, represented by the United Nations
Council for Namibia;
(c) all self-governing associated States which have
chosen that status in an act of self-determination
JA-84
supervised and approved by the United Nations in
accordance with General Assembly resolution
1514 (XV) and which have competence over the
matters governed by this Convention, including
the competence to enter into treaties in respect of
those matters;
(d) all self-governing associated States which, in
accordance with their respective instruments of
association, have competence over the matters
governed by this Convention, including the
competence to enter into treaties in respect of
those matters;
(e) all territories which enjoy full internal self-
government, recognized as such by the United
Nations, but have not attained full independence in
accordance with General Assembly resolution
1514 (XV) and which have competence over the
matters governed by this Convention, including
the competence to enter into treaties in respect of
those matters;
(f) international organizations, in accordance with
Annex IX.
2. This Convention shall remain open for signature until 9
December 1984 at the Ministry of Foreign Affairs of Jamaica
and also, from 1 July 1983 until 9 December 1984, at United
Nations Headquarters in New York.
JA-85
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
CAUSE NO. C95-1096
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff.
vs.
MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,
Defendants,
and
THE WASHINGTON ENVIRONMENTAL COUNCIL:
THE NATURAL RESOURCES DEFENSE COUNCIL:
Intervenors.
AFFIDAVIT OF WILLIAM B. COLLINS
I, William B. Collins, am competent to testify, and have
personal knowledge of the following:
JA-86
1. Il am a Senior Assistant Attorney General for the
State of Washington and represent the defendants Mike
Lowry, Christine O. Gregoire, and Barbara Herman in this
matter. .
2. Attached to this Affidavit are true and accurate
copies of Plaintiff Intertanko’s Response To Defendant State
Of Washington’s First Set Of Interrogatories, Nos. 11, 12,
24, and 25.
I certify under penalty of perjury under the laws of the
State of Washington that the above is true and correct to the
best of my knowledge.
DATED this 3rd day of June, in Olympia, Washington
/s/ William B. Collins
WILLIAM B. COLLINS
Subscribed and sworn to before me this 3rd day of June,
1996.
/s/ Linda Ahmuty
NOTARY PUBLIC in and for the State of Washington.
My appointment expires: 10-10-97
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****
INTERROGATORY NO. 24:
Paragraph 36 of the complaint states that by "reason
of the Supremacy Clause of the Constitution of the
United States of America (Article VI, Clause 2) the
BAP regulations are pre-empted by the federal
statues and international conventions cited above."
With regard to this pre-emption claim, do you claim
that any BAP regulation actually conflicts with a
federal statute, regulation, treaty or international
convention such that compliance with both the BAP
regulation and the federal statute, regulation treaty
Or international convention is a physical
' ‘bility?
ANSWER: INTERTANKO objects to interrogatory No.
24 because it requests information without reference to time
period and is in other respects vague, ambiguous, and
overbroad. Subject to and without waiving the foregoing
objections, INTERTANKO states that paragraph 36 reflects
INTERTANKO’s contention that Washington State standards
. incompatible with Article VI Clause 2 of the U.S.
Constitution. This pre-emption contention does not rely on an
allegation that it is a physical impossibility for tanker
operators to conform to both the federal/international regimes
and the Washington State regime.
*** *
JA-88
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HONORABLE JOHN C. COUGHENOUR
CAUSE NO. C95-1096
THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO).
Ple’» ff,
Vv.
MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,
Defendants,
and
THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
and OCEAN ADVOCATES, INC..,
Intervenors.
AFFIDAVIT OF STANLEY J. NORMAN
STATE OF WASHINGTON)
) ss.
County of Thurston )
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1. BACKGROUND
A. Position
My name is Stanley J. Norman, Commander, United
States Coast Guard (retired), and member, Nautical Institute.
The Nautical Institute is an international association of vessel
masters dedicated to marine safety and maritime
professionalism. I am a citizen of the United States, over the
age of 18, and competent to provide testimony in this matter.
I am the Program Director for Policy and Planning at the
Washington State Office of Marine Safety (OMS). My duties
include the management and supervision of the OMS tank
vessel prevention plan program, the vessel contingency plan
program and the education/technical outreach program. I am
also responsible for the development and implementation of
agency policies and regulations and agency administrative
procedures. I also serve as a custodian of the official public
records for OMS. The exhibits attached to this affidavit are
true and accurate copies of the documents contained in the
files and library of OMS. I previously served at the Office of
Marine Safety in the capacity of Senior Technical Specialist
for Policy and Pianning, and Tank Vessel Prevention Plan
Specialist. In addition, I served as supervisor of the Puget
Sound field office for the Office of Marine Safety for six
months prior to assuming my current position.
B. Education and Training
I am a 1971 graduate of the U.S. Coast Guard Academy
with majors in management and basic engineering. I am also
a graduate of the Combined and Joint Staff Officer Course of
the Armed Forces Staff College in Norfolk, Virginia. During
my 22-year Coast Guard career, I received additional training
in total quality management, personne! management, human
relations, resource management, program planning, aids to
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navigation, waterways management, search and rescue, and
law enforcement.
C. Experience
My Coast Guard career included more than eight years of
sea duty. I have served on five vessels. I served as executive
officer or chief mate on one, and commanding officer or
master of two: an ice-breaking tug, and a sea-going buoy
tender. I’ve sailed extensively throughout the Atlantic and in
parts of the Pacific Ocean. I’ve transited the Panama Canal,
operated north of the Arctic Circle, and have extensive Great
Lakes sailing time and experience with vessel management.
My service ashore with the Coast Guard included program
management and direction of several multi-million dollar
programs.
During my assignment to high-endurance Coast Guard
cutters, I supervised all deck department functions including
extensive towing, replenishment at sea, maneuvering, and
mooring. I was also assigned the additional duties of
communications officer and assistant navigator.
In 1973 I became the Executive Officer, or chief mate, of
the Coast Guard cutter Redwood in New London,
Connecticut. As Executive Officer of the Redwood I was
responsible for all aspects of administration, personnel, and
operations of the vessel. I had the opportunity to plan and
execute cargo loading, cargo storage, and liquid loading.
After four consecutive years of sea duty, I was reassigned
to the Great Lakes Operations Center of the Ninth Coast
Guard District in Cleveland, Ohio. In November 1975, I
personally directed the search for the survivors of the ore
carrier Edmond Fitzgerald, which sank in a severe Lake
Superior storm.
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From 1976 through 1979, I served as Senior Operations
Center Duty Officer and Ice Navigation Officer for the Great
Lakes. My duties included extensive vessel and boat
management, as well as direct liaison with the shipping fleets
that operated in the Great Lakes.
In 1979 I was selected to be the First Commanding
Officer of a new icebreaker tug, the U.S. Coast Guard cutter
Biscayne Bay, that was to be stationed in St. Ignace,
Michigan. As First Commanding Officer, I developed,
organized, and implemented a complete crew training
program; developed administrative procedures for the vessel;
supervised development of emergency procedures and an
organization manual, as well as station bills; and accepted the
vessel on behalf of the United States Government following
construction.
Following graduation from the staff college in January
1982, I was reassigned to U.S. Coast Guard headquarters in
Washington, D.C. as a military readiness planner.
In 1985 I returned to sea duty as Commanding Officer or
master of the U.S. Coast Guard cutter Cowslip, a 180-foot,
1000-ton seagoing buoy tender responsible for aids to
navigation, search and rescue, and law enforcement
throughout the Chesapeake Bay, Potomac River, eastern shore
of Maryland and the Virginia Capes. In 1987 I was reassigned
to the staff of Commander Naval Base, Norfolk, Virginia as
Senior Coast Guard Officer, where I served as assistant naval
base operations officer, helping to manage the world’s largest
naval facility.
In 1989 I was transferred to Seattle, Washington as the
Pacific Northwest Director of Waterways Management and
Aids to Navigation. As program manager and director, I
supervised the operations and administration of four ships,
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five aids to navigation teams, two long-range radio navigation
stations, and the Vessel Traffic Service of Puget Sound.
The Puget Sound Vessel Traffic Service is the United
States’ largest, busiest, and only international Vessel Traffic
Service. As supervisor and program manager for the Vessel
Traffic Service, I served as the U.S. member of the Canada-
U.S. Joint Coordinating Group for Vessel Traffic Service in
the Juan de Fuca region. During my tenure as program
director in Seattle, my staff and the units that I supervised
completed extensive waterways analysis and management
surveys of all waterways in Oregon, Washington, Montana,
and Idaho under federal jurisdiction. In addition, 1 worked
extensively with the Vessel Traffic Service in Seattle to
develop regulated navigation areas for Puget Sound, and the
Puget Sound-specific regulations incorporated in the National
Vessel Traffic Service Regulations. All of these federal
regulations now reside in 33 Code of Federal Regulations
(CFR).
I retired from the U.S. Coast Guard on July 1, 1993 and
began work for the Office of Marine Safety on August 23,
1993.
Il. RULE ADOPTION PROCESS
A. Phases 1, 2, 3
The Washington State Oil Spill Prevention and Response
Act of 1991 (Act) created the Office of Marine Safety and
mandated that owners or operators of tank vessels prepare and
submit to OMS oil spill prevention plans for those vessels that
meet the requirements of the Act. RCW 43.211.010 and RCW
88.46.040. The Act also mandated that OMS only approve
tank vessel prevention plans that demonstrated best achievable
protection (BAP) for Washington’s marine environment.
RCW 88.46.040(3). The Office of Marine Safety approached
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this challenge in three deliberate phases. Phase 1 and Phase 2
were designed to gather information on the tank vessel fleet
operating in Washington, and the practices used by the
owners and operators of those vessels. The phases are more
fully described in Exhibit 1.
Phase 1 began with the filing of interim prevention plans
by tank vessel owners and operators beginning on January 1,
1993. Interim prevention plans consisted of one to two pages
which briefly described the tank vessel or vessels covered by
the plan. The interim prevention plans were used to provide
a picture of tank vessel traffic in Washington. From the
interim plans, OMS learned that every year approximately
en and 150 tank barges operate in Washington
Ww ,
B. Development Process For BAPs
In March 1993, OMS adopted Phrase 2 rules in
Washington Administrative Code chapter 317-20. The order
of adoption is attached as Exhibit 2. These original tank vessel
prevention plan rules required owners and operators of tank
vessels to submit to OMS their informational prevention plans
that described the operating and management policies and
procedures used by their company, and which demonstrated
minimum compliance with existing federal and international
standards. These detailed informational prevention plans were
due for submission to OMS by September 3, 1993 or prior to
the arrival of the first covered vessel in Washington waters.
Between September and December 1993, more than 70
prevention plans were submitted to OMS covering more than
500 vessels. These plans were reviewed by OMS staff for
completeness and minimum compliance.
Beginning in November 1993, and continuing through
April 1994, OMS conducted an extensive review of those
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prevention plans. OMS researched other developments in the
industry in order to produce an extensive list of current
practices within the industry that held promise as potential
best achievable protection standards. Industry practices and
procedures were organized into four categories: Operating
procedures; personnel policies; management practices; and
technology.
OMS research included a very comprehensive library
search and a close review of the States/British Columbia Oil
Spill Task Force Reports and continuous monitoring of
International Maritime Organization (IMO) subcommittee
work. In particular, the efforts of the subcommittees on Safety
of Navigation, Standards for Training and Watchkeeping, and
Flag State Implementation were followed. OMS staff attended
U.S. workgroup sessions to develop U.S. positions for IMO
delegations to those subcommittees.
C. Advisory Group
In April 1994, OMS chartered an Advisory Group on
Best Achievable Protection Standards consisting of experts on
marine transportation and environmental protection. The
Charter is attached as Exhibit 3. The Advisory Group was
composed of representatives from both the public and private
sectors. Industry representation included tanker managers,
tanker operators, and other experts and professionals. |
chaired the Advisory Group. A list of Advisory Group
members is attached as Exhibit 4. The Advisory Group met
five times to review and refine the draft best achievable
protection standards and the draft rules for tank vessel
prevention plans that would eventually replace chapter 317-20
WAC with a new chapter, chapter 317-21 WAC. The minutes
of their meetings are attached as Exhibits 5, 6, 7, 8, and 9.
An example of the draft rules which illustrates the scope of
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the changes made by the Advisory Group is included as
Exhibit 10.
During the process of developing and implementing the
BAP standards, by agreement between OMS and the Coast
Guard, I was sent to Washington, D.C. on June 25, 1994 to
brief the senior staff at U.S. Coast Guard Headquarters,
including representatives from the Marine Safety Office, the
Navigation Office, and the Chief Counsel’s Office, of the
U.S. Coast Guard on best achievable protection standards that
had been developed by the Advisory Group at OMS. My
report of the trip is attached as Exhibit 11.
D. Public Workshops and Hearings
OMS conducted public workshops in July 1994, to solicit
public comments on the draft best achievable protection
standards. The media release and the official notice are
attached as Exhibits 12 and 13. A compilation of the
comments is attached as Exhibit 14. These comments were
provided to the Advisory Group for their use in reviewing the
draft rules for the BAP standards. The proposed rules were
published in the Washington State Register on September 21,
1994. Public hearings were held in Vancouver, Washington
on October 18, 1994, and in SeaTac, Washington on October
20, 1994, to obtain oral testimony on the proposed BAP rules.
In addition to the testimony received at the public hearings,
OMS accepted written comments through November 7, 1994.
A copy of the Hearing Examiner's Report on the proposed
rules is attached as Exhibit 15.
E. Adoption of Chapter 317-21 WAC
Chapter 317-21 WAC was adopted on December 9, 1994,
after an extensive review of all comments received. See
Exhibit 16. The rules were scheduled to become effective on
June 7, 1995.
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In order to facilitate compliance with these new rules,
OMS developed Model Tanker and Tank Barge Prevention
Plans. Because the development of these extensive model
guidance documents took longer than expected, the effective
date of the rules was pushed back to July 7, 1995 for tankers,
and July 31, 1995 for tank barges to allow owners and
operators additional time to study the models and produce
better, more comprehensive prevention plans. The model
plans provide templates for tank vessel owners and operators
to use as they develop their prevention plans and describe the
documentation required to demonstrate compliance with the
rules.
F. Amendments To BAPs In 1996
Approximately two months after adoption of the BAP
standards, in February 1995, OMS was notified by two
groups that they believed there were some problems with the
standards. One group was the State Board of Pilotage
Commissioners, who was concerned that there may be some
conflicts or some problems with clarity in those portions of
the BAP standards that affected pilots. The other group was
maritime labor, which had not been directly involved in the
Advisory Group, although they had received mailings and
other information. Maritime labor was primarily concerned
over the drug and alcohol testing requirements due to possible
impacts on collective bargaining agreements.
Between March and October 1995, a number of meetings
were held with maritime labor, the Puget Sound Pilots, and
the Board of Pilotage Commissioners in an attempt to make
technical changes to the rules that would resolve the issues
raised. Amendments to chapter 317-21 WAC were proposed
in October 1995. See Exhibit 17. The notice to the public and
the Hearing Examiner Report on the amendments are attached
as Exhibits 18 and 19. The amendments were adopted on
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January 17, 1996 and became effective on February 17, 1996.
See Exhibit 20. The changes to the BAP standards covered
three primary elements: (1) coordination with pilots, (2)
voyage planning, and (3) drug and alcoho! testing.
The changes to the Coordination with Pilots requirement
were designed to facilitate an exchange of information and to
recognize that a pre-escort conference covering many of the
same items is required under 33 C.F.R. Part 168, the tanker
escort rules issued by the Coast Guard pursuant to OPA 90.
The changes to the Voyage Planning section added the caveat
that the plan should not be adhered to without deviation; the
advice of the vessel’s state licensed pilot and varying local
conditions must be taken into consideration. The pilot will
come aboard and supplement the information that the vessel
crew has already gleaned from such documents as the Coast
Pilot, Tide Tables and nautical charts.
The other technical change added a section to clarify that
state-licensed pilots are not subject to the alcohol and illicit
drug chemical testing policies in the BAP standards because
they are already covered by the State Board of Pilotage
Commissioner’s drug and alcohol program. The amendments
also make it clear that the primary purpose for the changes in
the drug and alcohol testing program was to ensure
compatibility with federal standards which were being revised
during the six-month period between adoption and
effectiveness of the BAP standards. Those changes included
specifying that post-accident testing was required of only
those crew members who may have been directly involved in
assigned vessel of any navigation or engineering watch
stander who remains employed by the owner/operator as a
watch stander after testing positive for drugs or alcohol two
or more times during the previous 12 months of employment
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be reported to OMS. This change was at the recommendation
of labor organizations, which indicated a need for some
flexibility in reporting names due to privacy considerations.
In addition, the definition of "illicit drug” was changed to
conform exactly with the federal definition in the testing panel
used by the U.S. Coast Guard. The percentage of random
testing required was amended to equal the random testing
requirement in 46 C.F.R. Thus, the changes made to the BAP
standards in 1996 were designed to make the standards
flexible enough to take into account changes in pilot
procedures as a result of State Board of
Commissioners activities and changes in drug and
testing procedures due to changes in the federal drug
alcohol testing program. The State Board of Pilotage
Commissioners supported the amendments. See Exhibit 21. .
Ill. EXPLANATION OF BEST ACHIEVABLE
PROTECTION (BAP) STANDARDS
Washington's Best Achievable Protection Standards are
divided into four major categories: Operating Procedures,
Personnel Policies, Management Practices, and Technology.
and elements. The proposed list of categories and elements is
included as Exhibit 22.
A. Operating Procedures
1. The first subcategory under Operating Procedures is
Watch Practices. WAC 317-21-200.
a. The first element is the Navigation Watch. See
WAC 317-21-200(1). Washington requires at least two
licensed deck officers, a helmsman and a lookout. During
periods of restricted visibility only, three licensed navigation
officers are required. The reason for adding a licensed officer
eB
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during restricted visibility is in order to perform the three
primary bridge management functions that are outlined in
nevigation, collision avoidance. end séeinicwisien. Dati
periods of restricted visibility the workload should be evenly
wh ‘sibility is not icted. an individual officer is
able to combine the workload from one, two, or even three
functions, depending on the area in which he or she is
navigating. During restricted visibility, when a great deal
more attention needs to be paid to both navigation and
collision avoidance, the Advisory Group and OMS determined
that an additional officer was required so that the workload
could be balanced.
The primary function of a deck officer is to reduce the
risk of groundings and collisions which are the two primary
causes of catastrophic oil spills. Specifically, groundings are
usually caused by navigational errors. Collisions are usually
caused by collision avoidance errors. By assigning a deck
officer to each of those functions, sufficient emphasis should
be placed on each to greatly reduce the risk of a mistake.
visibility in the 70 miles west of Port Angeles, in the Strait of
Juan de Fuca. The Strait of Juan de Fuca is unique in that the
70 miles west of Port Angeles is entirely within Washington
and U.S. waters on the inbound lane, and Canadian waters on
the outbound lane. State pilots do not board vessels until they
have transited for approximately five hours through state
waters to Port Angeles. State pilots who board at Port Angeles
count as the third officer.
b. The next element of Operating Procedures,
Watch Practices, is Bridge Resource Management. See WAC
Exhibit 23: "Bridge Resource Management" by Richard T.
Johnson, National Transportation Safety Board, MITAGS
Bridge Team Management Course, Marine Institute of
Technology and Graduate Studies, October 1993, pp. 1-18
(hereinafter "MITAGS"). Washington’s standards call for
bridge resource management for all tankers. Included within
the bridge resource management system must be provisions
for accomplishment of its three functions: navigation,
collision, avoidance, and administration. Washington
standards for bridge resource management also include
requirements for comprehensive voyage planning and
coordination with pilots. These requirements are linked, just
like the navigational watch composition is, to an effective
bridge resource management system. The purpose of bridge
resource management is to avoid collisions and groundings,
the two primary causes of catastrophic oil spills.
c. The next element of Operating Procedures,
Watch Practices, is Coordination With Pilots. See WAC 317-
21-200(3). This element is linked directly to bridge resource
management. Washington requires the use of a checklist to
facilitate the communication between vessel bridge teams and
pilots. When a pilot comes aboard a merchant vessel,
particularly a merchant vessel with a crew that is not familiar
with local waters, the pilot becomes a key member of the
bridge team, providing local expertise and considerable
knowledge to assist the vessel’s crew in navigating the vessel
safely into port. It is essential that the pilot and the vessel’s
navigation team work closely together. The purpose of the
checklist required by Washington State is to ensure that the
communication is as complete as possible between the vessel
crew and the pilot and to provide redundancy in the sense that
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the vessel crew needs to know the actions the pilot plans to
take, and the pilot needs to know what actions the crew plans
to take, so that both can support each other. See Exhibit 24,
MITAGS Checklist and Exhibit 25, the Washington State
Pilotage Rules and Checklist, WAC 296-116-205 and 2051.
If an individual makes a mistake there will be additional
individuals to catch that mistake and help correct it before it
turns into a bigger mistake. The National Transportation
members on the bridge in Safety Recommendation M-93-34
issued on June 25, 1993, following the NTSB’s investigation
of the grounding of the Queen Elizabeth 2 ("QE2") in
Vineyard Sound, Massachusetts. A copy of that
recommendation is attached as Exhibit 26.
d. The next section under Operating Procedures,
Watch Practices, is Security Rounds. See WAC 317-21-
200(4). OMS and Advisory Group review of Phase 2
prevention plans indicated that nearly all tanker crews made
security rounds while in port. The primary purpose of the
security rounds is to detect fires, flooding, and other
anomalies early, so that they can be dealt with before they
become major problems. The Washington standard requires a
security round underway and at anchor as well as in port,
every two hours, or once per watch, if a vessel has installed
monitoring systems, which is fairly common. The Washington
standard allows the security rounds to be conducted by any
properly trained crew member. The primary focus of most
security rounds it detection of small fires that can grow to be
major fires. The intent related to prevention of oil spills is to
drift aground due to a fire. In addition, there is the possibility
that a vessel can catch fire and burn to the extent that enough
structural damage will be done to allow oil to escape into the
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water. The primary purpose, however, is to prevent a fire or
other casualty from disabling a vessel and allowing it to drift
aground or lose steering and collide with another vessel.
There was a great deal of discussion at the Advisory
Group about what sections of the ship should be inspected.
There was some concern that having the crew member inspect
in and around the cargo area would possibly subject the crew
member to some danger being out on deck at night. For that
reason, the Washington standard calls for the master to
designate the spaces that will be inspected, relying on the
master’s professional judgment to determine which sections of
the vessel could be safely inspected.
The Washington standard also defines the appropriate
interval. Since most of the Phase 2 prevention plans indicated
that the security round interval most frequently used in the
industry was every four hours, OMS adopted that standard.
For those few vessels without monitoring systems for flooding
and fire, OMS believed that security rounds were needed
more often.
e. The next section under Operating Procedures,
Watch Practices, is Anchor Watch. See WAC 317-21-200(5).
The Washington standard calls for a continuous anchor watch
by a navigation officer on the bridge, and plotting of the
vessel's position at anchor once per hour.
There is a history in Washington of problems with vessels
dragging anchor. Several incidents occurred in the three years
preceding the development of these standards of . ik vessels
dragging anchor in Port Angeles, and other types of vessels,
which could include tank barges, dragging anchor in South
Elliot Bay during heavy weather, and sometimes in not-so-
heavy weather. In one instance in Port Angeles, when the
VTS detected that the vessel was dragging anchor, they were
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unable to communicate this to the vessel’s crew because there
was no anchor watch monitoring the ship's radio. As a result,
a pilot had to be dispatched from the pilot station to board the
vessel and reset the anchor. The major hazard that an anchor
watch prevents is the vessel dragging anchor and subsequently
colliding with another vessel or running aground. The
objective of this standard is to prevent a small incident from
becoming a large oil spill. The provision to plot position
hourly was derived from the practices as reported by the
industry in their Phase 2 informational prevention plans. As
a practical matter, navigation officers monitor the position of
a vessel at anchor by radar ranges and bearings on fixed
objects ashore, which is relatively easy to do in a continuous
manner by setting the radar up to alert the officer whenever
the range parameters from a particular point ashore change
more than would be expected by a vessel swinging on its
anchor chain.
f. The fina! standard under Operating Procedures,
Watch Practices, is composition of the Engineering Watch.
See WAC 317-21-200(6). Many tank vessels now have a
certificate for unmanned engine room operation. OPA 90
contained a provision that required the Coast Guard to do
rulemaking regarding engine room manning. The Coast Guard
rulemaking requires in U.S. waters that all tank vessels have
a manned engine room, or manned machinery spaces. Some
modern vessels are built with machinery spaces and
engineering control rooms. In some cases, the engineering
control room is a considerable distance away from the
machinery spaces. My experience on a new Coast Guard
cutter was similar. My vessel had an engine room, and motor
a control room for all those spaces located on the main deck.
The issue then is if propulsion or steering is lost, and
machinery needs to be reset or adjusted to regain propulsion
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or steering, can all that be done from the control room, or
must some of it be done from the machinery spaces
themselves?
The experience of everyone in the Advisory Group,
myself included, was that there are some things that can be
reset from the control room, and some things that a crew
person has to be dispatched to the machinery space to reset or
adjust. As a result, there can be a substantial time lag between
loss of propulsion or steering, or electrical power for that
matter, and the ability to regain it, because the crew member,
if only assigned to the control room, must be dispatched to the
machinery spaces, evaluate the situation, and make
adjustments.
The Washington standard, therefore, calls for a licensed
engineer in both the engineering control room and the
machinery spaces, if they are located apart from each other,
while the ship is engaged in critical maneuvering. Generally,
those would be times of either mooring, unmooring,
anchoring, leaving anchorage, or reducing speed or stopping
to receive a pilot. The intent is to provide someone in each of
the two spaces capable of restoring propulsion and steering as
quickly as possible during these critical situations. The reason
for this standard is to ensure prompt restoration of steering
propulsion and electrical power in the event of a casualty. The
risk if this standard is not implemented, is that the vessel will
run aground or collide with another vessel as a result of a
machinery casualty.
2. The next subcategory under Operating Procedures is
Navigation. See WAC 317-..:-205.
a. The first element under Navigation is Fix
Intervals. See WAC 317-21-205(1). As a practical matter, to
determine set and drift, at least two fixes are required. Then
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to fix the actual progress of the vessel through the water, the
fixes are measured against planned progress. The speed that
the vessel should move, uninfluenced by currents and wind,
is measured against the direction the vesse! should move
uninfluenced by currents and wind.
This particular element was the subject of much
discussion by the Advisory Group. The Phase 2 prevention
plans indicated fix intervals everywhere from "undefined"
down to "six minutes" in some areas of Washington waters,
depending on the narrow channels and traffic levels.
Technology is available that allows vessel navigators to fix
their position electronically almost instantly, and with very
little effort. After considerable discussion, the Washington
standard became constant monitoring, in the same way that
there is the ability to constantly monitor at anchor to prevent
groundings and collisions. There is also the ability for a vessel
to monitor its position constantly while moving and to record
the position, manually or electronically, at least every 15
minutes. A tanker proceeding at its normal cruise speed
generally travels between 13 and 16 knots. Fifteen minutes
means that the vessel will move approximately four miles in
that period of time. The Advisory Group and OMS believed
that a position should be plotted every 15 minutes to give an
indicator to the vessel navigation team as to where they are,
relative to where they plan to be. Since four miles is a
considerable distance, the Advisory Group believed that 15
minutes should be a minimum interval for plotting fixes, and
that fixes in some cases should be done more often. As a
consequence, the constant monitoring provision was entered
in the standard.
b. The next element under Operating Procedures,
Navigation, is Voyage Planning. See WAC 317-21-205(2). In
a manner similar to the Washington Pilot Coordination
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Requirements, the Advisory Group and OMS maritime
experts determined that it would be helpful to provide a
checklist of items to be considered and publications to be
consulted in the course of voyage planning. The checklist, like
the pilot coordination checklist, is designed to facilitate the
crew’s accomplishment of voyage planning. It helps the crew
review all of the appropriate publications and consider all the
elements of a comprehensive voyage plan to provide a
navigation guide through state waters for that particular
voyage.
c. The next element under Operating Procedures,
Navigation, is Compass Checks. See WAC 317-21-205(3).
The Washington standard requires tanker masters to establish
a schedule for comparison of gyro-compass and magnetic
compass. A gyrocompass is an instrument that uses the
rotation of the earth and inertia to indicate true direction. A
magnetic compass indicates direction based on the location of
the earth’s magnetic poles. A comparison of the two
compasses is generally the method used to determine gyro-
compass and magnetic compass errors and then those errors
are applied to the two compasses to ensure an accurate reading
on both and to avoid faulty steering. The compass comparison
method was the method referred to most frequently in the
Phase 2 prevention plans as the method used to determine
compass error on vessels.
d. The next element of Operating Procedures,
Navigation, is Port Angeles tug assist. See WAC 317-21-
205(4). This element was not challenged in this lawsuit. This
element codifies an existing voluntary procedure developed to
provide assist tugs to vessels anchoring and departing
anchorage in Port Angeles. The reason for this element is that
the anchorage area is heavily used and subject to high winds.
This element is also based on the incident described earlier for
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anchor watch. There was a need to add some additional
capability to vessels trying to operate at slow speeds,
maneuver among other vessels, and also remain anchored
when the wind speed picked up.
3. The next subcategory under Operating Procedures is
Engineering. See WAC 317-21-210.
a. The first element under engineering addresses
standby electrical generators. See WAC 317-21-210(1).
Electrical power on a vessel is extremely critical. Most of the
navigation equipment and other electronic devices operate
from the electrical power generated in the machinery spaces
by what is called a ship service generator. Most vessels are
equipped with more than one. Most modern vessels have an
automatic switching gear, which is essentially a circuit
breaker. When the generator being used fails, the switching
gear automatically activates another generator and maintains
electrical power. With this system, very little time is lost in
regaining electrical power in the event of a failure of the
primary generator. However, some vessels do not have this
automatic standby switching gear. The Washington standard
is designed to ensure that in the event a vessel does not have
automatic standby switching gear, the standby generator is
running and immediately available to assume the electrical
load and thereby restore electrical power as quickly as
possible. Frequently, the loss of electrical power also results
in the loss of propulsion. Thus, restoration of electrical power
quickly is critical to maintaining control of the vessel.
b. The second element under Operating Procedures,
Engineering, is steering gear inspections. See WAC 317-21-
210(2). The state requirement is for hourly inspections of the
steering gear while in state waters. The steering "flat" is the
room on a ship where the steering gear is located. The
purpose of this requirement is to ensure that the steering gear
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continues to work as it did when it was inspected and tested
12 hours before entering Washington waters. The Advisory
Group believed and the OMS research indicated that steering
gear could fail between 12 hours outside state waters and
arrival at a safe mooring. These inspections of the steering
gear are designed to highlight or identify small problems
before they become major problems and control of the
direction of the vessel is lost.
There is a provision in the standard for a monitoring
system. If a company chooses to install an adequate
monitoring system, the requirement is waived for hourly
inspections by personnel. Generally, the hourly inspections of
the steering gear that were indicated in the Phase 2 prevention
plan as a practice by the industry were conducted as part of a
routine survey of all machinery and auxiliary machinery
spaces by engineering personnel.
c. The third element under Operating Procedures,
Engineering, is scoop injection systems. See WAC 317-21-
210(3). This element was added in the unlikely event that
tankers coming into Washington waters would use scoop
injection systems. The reason it’s unlikely that tankers will
have scoop injection systems is that this is a passive system of
machinery cooling that only works on high speed vessels, and
very few tankers operate at speeds high enough to make this
efficient. A scoop injection system is more efficient and
effective than pumping cooling seawater for use in the main
propulsion system. The way it works is a scoop, essentially
like an air scoop in a vehicle, located below the water line of
a vessel traveling at 20 knots or more, will allow for the
intake of cold saltwater. Due to the speed of the vessel, the
cooling water is forced into the engineering system and back
out without the sustained assistance of pumps.
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The state requirement is that these systems be secured or
turned off before entering state waters and that instead the
vessel use its installed pumps to provide cooling water to its
propulsion system and to its electrical generating systems. The
reason for this provision is that if a ship does have a scoop
injection system, it does not function properly at the lower
speeds normally used in coastal waters. Most systems will fail
if adequate cooling water is not supplied. The requirement is
designed to prevent failure in the propulsion and electrical
generating systems, thus reducing the risk of accidents.
d. The final Operating Procedure, Engineering,
element is main engine fuel changeover. See WAC 317-21-
210(4). It has become a common practice on some vessels to
use a heavier, less refined fuel when out at sea, and a more
expensive, lighter refined product when maneuvering. In
California, for many vessels the lighter refined product is
required to meet air emission requirements. That is, in
California waters, vessels will switch to a more refined,
lighter product or oil in order to reduce the sulfur emissions
that generally result from burning heavier fuel oil. OMS
discovered, and Advisory Group members confirmed, that
frequently during the process of changing from heavy fuel oil
to light fuel oil, propulsion is lost due to malfunctions within
the propulsion system. In order to prevent the loss of
propulsion within state waters where vessels have less room
to maneuver, the requirement in the BAP standards is that if
a vessel uses this system, the switchover must take place
outside of state waters.
While the Advisory Group was meeting, a cargo vessel in
the Mississippi River near New Orleans switched from heavy
to light fuel, lost propulsion, and experienced a casualty. This
incident confirmed our concern that this fuel changeover was
an engineering procedure that should best be conducted in an
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area where loss of propulsion would not have a detrimental
effect on the vessel or result in a grounding or collision.
4. The next subcategory under Operating Procedures is
Prearrival Tests And Inspections. See WAC 317-21-215..
The Washington standard defines critical navigation and
engineering equipment subsystems that should be tested. A
subsystem failure may result in a failure of the main
propulsion system, the electrical generating system, or the
steering system. The subsystems included are main lubrication
oil pumps, main fuel oil pumps, oil system strainers, settler
and service tanks, cooling water systems, including pumps,
intake air blowers, and air control systems. For steam vessels,
spare boiler burners, forced draft fans, and feed water pumps
are added. Thus, the state requirement further defines main
propulsion system checks and inspections and adds navigation
equipment. Prearrival tests and inspections elements and items
were drawn primarily from expert engineers provided by
ARCO Marine and American President Lines. Like nearly all
of the operating procedures, these standards are designed to
prevent collisions and groundings, and subsequent oil spills.
5. The final subcategory under Operating Procedures is
Emergency Procedures. See WAC 317-21-220. Station bills
are required for fire, abandon ship, man overboard, and oil
spill response. A station bill is a listing of all personnel on the
vessel, where they would go in each of these emergencies,
what they should bring with them, and what their action is to
be in response to the emergency. Station bills are generally
very comprehensive. Based on written procedures submitted
as part of the Phase 2 prevention plans by virtually all major
companies, the state standard also includes a requirement for
written procedures on how to respond to collisions,
groundings, hull breach or structural failure, loss of
propulsion, loss of steering, loss of electrical power, or
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compass malfunction. In addition, the state standard adds
situations: (1) emergency towing, (2) loss of throttle control
on the bridge, and (3) heavy weather. These procedures were
_ Outlined in the Phase 2 prevention plans as situations in which
a written procedure needed to be promulgated and
in onder to tell the crew how to handle the poteatal siuaten,
Written procedures help vessel crews avoid groundings and
collisions. They also help the crew mitigate the damage if a
grounding or collision does occur.
6. An additional subcategory within Operati
Procedures is entitled Events. See WAC 317-21-225. This
subcategory requires vessels that experience an event to
maintain the documentation that would be required to
investigate that event. The documentation surrounding an
event must be safeguarded so that investigators will be able to
reconstruct the event, and promulgate "lessons learned”
B. Personnel Policies
The next major category of BAP standards is Personnel
Policies.
1. The first subcategory within Personnel Policies is
Training. See WAC 317-21-230. Sixty-five (65%) to eighty
percent (80%) or more of all vessel accidents and casualties
are caused by human error. See Exhibit 27. Therefore, the
personnel policies standards promulgated by the state of
Washington are critical to preventing oil spills. A study done
by the National Ports and Waterways Institute at the beginning
of the Advisory Group process identified training as the single
most critical subcategory that should be addressed.
The training program required by Washington includes
three primary elements. They are (1) orientation training for
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all new crew members, (2) position-specific training for all
crew members, and (3) refresher training for crew members
to validate the position-specific training received previously.
In addition, shipboard drills or practices are also included
under training, since they are a vital part of a comprehensive
training program. Drills alles “he crew to actually practice
the procedures they have bees .cained for. An example of a
Phase 2 Training Plan from SeaRiver Maritime, Inc., is
attached as Exhibit 28. The Phase 2 Training Outline of Stolt-
Nielson, Inc. is attached as Exhibit 29.
a. The state standard for vessel orientation training
includes all new crew members or all members returning to
vessels of a type they have not served on within the past year.
See WAC 317-21-230(2). It also includes maintenance
personnel who sail on ships, because the orientation
training includes familiarization with the individual crew
member’s station assignments and responsibilities, including
both emergency responsibilities and routine responsibilities.
It also includes a walking tour of the spaces on the vessel that
are designated by the master. The purpose of the walking tour
is to familiarize the new crew member with the vessel's
layout, as well as to identify escape routes for the new crew
member from the place where he or she sleeps, and from the
place where he or she works.
b. Position-specific training requirements are laid
out in the state standard by each primary position on a vessel.
Companies have been given three years to comply with this
requirement. This means that an individual employed on a
vessel on June 7, 1995, needs to complete the training specific
to their position by
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