Intertanko v. Lowry
| Citation | 947 F.Supp. 1484 |
| Decision Date | 18 November 1996 |
| Docket Number | No. C95-1096C.,C95-1096C. |
| Parties | THE INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO), Plaintiff, v. Mike LOWRY, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Henry C. Jameson, Jameson Babbitt Stites & Lombard, Seattle, WA, C. Jonathan Benner, Eckert Seamans Cherin & Mellott, Washington, DC, for International Association of Independent Tanker Owners.
William B. Collins, Attorney General's Office, Olympia, WA, for Mike Lowry, Governor of the State of WA.
William B. Collins, Attorney General's Office, Olympia, WA, Jerri Lynn Thomas, Rebecca A. Vandergriff, Attorney General's Office, Ecology Division, Olympia, WA, for Christine O. Gregoire, Barbara J. Herman.
Randall J. Watts, Whatcom County Prosecuting Attorney's Office, Bellingham, WA, for David Maceachern.
Thomas Herrick Robertson, Tim Walter Dore, Snohomish County Prosecuting Attorney, Civil Division, Everett, WA, for James H. Krider.
Alex Golan, King County Courthouse, Civil Division, Seattle, WA, for Norman Maleng.
Jeffrey Needle, Seattle, WA, for intervenors National Resources Defense Council Washington Environmental Council, Ocean Advocates, Inc.
This matter comes before the Court on cross-motions for summary judgment filed by plaintiff, defendants and intervenors. Having heard oral argument, and having reviewed the pleadings, memoranda, exhibits and other documents on file, the Court now finds and concludes as follows:
I. Background
This is a lawsuit brought by the International Association of Independent Tanker Owners ("Intertanko") against Washington State, certain state officials, and four county prosecutors. Intertanko seeks an order declaring that certain Washington statutes and regulations pertaining to the operation of oil tankers in state waters are unconstitutional. Three environmental groups, the National Resources Defense Council, the Washington Environmental Counsel and Ocean Advocates, Inc., have intervened.
The marine waters of Washington include a rocky ocean coastline, the "inland sea" of Puget Sound, and the Straight of Juan de Fuca. These waters host ecosystems that are as rich and diverse as any in the world. These waters are also highly susceptible to damage from oil pollution. Puget Sound is particularly vulnerable because it is relatively confined and shallow. Puget Sound is also difficult to navigate due to vessel traffic, fog and natural obstructions.
Intertanko is a trade association with approximately 253 members and 152 associate members who own or operate tankers. Intertanko's members represent on a tonnage basis, approximately 80 percent of the world's independently owned tanker fleet. Intertanko members call at oil facilities in Puget Sound, and travel along the Columbia River to reach ports in Oregon.
Intertanko challenges several statutes and regulations that have been implemented by the state to prevent oil spills and thereby protect Washington waters. See RCW 88.46.010, et seq., and WAC 317-21-010, et seq. Intertanko specifically asserts that RCW 88.46.010(2)-(3), and RCW 88.46.040(3) are preempted or otherwise invalidated by federal law. In order to transport oil in state waters, these statutes require tank vessel operators to file oil spill prevention plans. These plans must provide for the best achievable protection from damages caused by the discharge of oil, and must comply with regulations adopted by the State Office of Marine Safety ("OMS").
Intertanko also asserts that 16 regulations promulgated by the OMS are invalid. These regulations lay out specific requirements that tanker vessel operators must satisfy to meet the best achievable protection standards in their prevention plans. These regulations may be summarized as follows:
1. Event Reporting — WAC 317-21-130. Requires operators to report all events such as collisions, allisions and near-miss incidents for the five years preceding filing of a prevention plan, and all events that occur thereafter for tankers that operate in Puget Sound.
2. Operating Procedures — Watch Practices — WAC 317-21-130. Requires tankers to employ specific watch and lookout practices while navigating and when at anchor, and requires a bridge resource management system that is the "standard practice throughout the owner's or operator's fleet," and which organizes responsibilities and coordinates communication between members of the bridge.
3. Operating Procedures — Navigation — WAC 317-21-205. Requires tankers in navigation in state waters to record positions every fifteen minutes, to write a comprehensive voyage plan before entering state waters, and to make frequent compass checks while under way.
4. Operating Procedures — Engineering — WAC 317-21-210. Requires tankers in state waters to follow specified engineering and monitoring practices.
5. Operating Procedures — Prearrival Tests and Inspections — WAC 317-21-215. Requires tankers to undergo a number of tests and inspections of engineering, navigation and propulsion systems twelve hours or less before entering or getting underway in state waters.
6. Operating Procedures — Emergency Procedures — WAC 317-21-220. Requires tanker masters to post written crew assignments and procedures for a number of shipboard emergencies.
7. Operating Procedures — Events — WAC 317-21-225. Requires that when an event transpires in state waters, such as a collision, allision or near-miss incident, the operator is prohibited from erasing, discarding or altering the position plotting records and the comprehensive written voyage plan.
8. Personnel Policies — Training — WAC 317-21-230. Requires operators to provide a comprehensive training program for personnel that goes beyond that necessary to obtain a license or merchant marine document, and which includes instructions on a number of specific procedures.
9. Personnel Policies — Illicit Drugs and Alcohol Use — WAC 317-21-235. Requires drug and alcohol testing and reporting.
10. Personnel Policies — Personnel Evaluation — WAC 317-21-240. Requires operators to monitor the fitness for duty of crew members, and requires operators to at least annually provide a job performance and safety evaluation for all crew members on vessels covered by a prevention plan who serve for more than six months in a year.
11. Personnel Policies — Work Hours — WAC 317-21-245. Sets limitations on the number of hours crew members may work.
12. Personnel Policies — Language — WAC 317-21-250. Requires all licensed deck officers and the vessel master to be proficient in English and to speak a language understood by subordinate officers and unlicensed crew. Also requires all written instruction to be printed in a language understood by the licensed officers and unlicensed crew.
13. Personnel Policies — Record Keeping — WAC 317-21-255. Requires operators to maintain training records for crew members assigned to vessels covered by a prevention plan.
14. Management — WAC 317-21-260. Requires operators to implement management practices that demonstrate active monitoring of vessel operations and maintenance, personnel training, development and fitness, and technological improvements in navigation.
15. Technology — WAC 317-21-265. Requires tankers to be equipped with global positioning system receivers, two separate radar systems, and an emergency towing system.
16. Advance Notice of Entry and Safety Reports — WAC 317-21-540. Requires at least twenty-four hours notice prior to entry of a tanker into state waters, and requires that the notice report any conditions that pose a hazard to the vessel or the marine environment.
Intertanko relies on a number of federal statutes, regulations and international treaty obligations to assert that the state statutes and regulations improperly intrude into a field controlled by the federal government. Most of the federal law relied on by Intertanko is derived from the Tank Vessel Act of 1936, the Ports and Waterways Safety Act of 1972 ("PWSA"), the Port and Tanker Safety Act of 1978 ("PTSA")1, and the Oil Pollution Act of 1990 ("OPA 90")2. The progressive passage of these acts by Congress either added to or amended prior law regarding the regulation of oil tankers. The provisions of these acts are largely found in Titles 33 and 46 of the United States Code. These laws impose specific requirements for tankers or delegate to the Coast Guard the responsibility for promulgating specific standards.
Intertanko also relies on a handful of treaties to which the United States has acceded. These include the International Convention for the Safety of Life at Sea, 1974 ("SOLAS"), the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 ("MARPOL"), the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978 ("STCW"), and the International Regulation for Preventing Collisions at Sea, 1973 ("COLREGS"). These treaties have all been signed and ratified by the United States.3
II. Discussion
This case tests the extent to which Washington State may protect its marine environment by regulating oil tankers in the areas of operations, personnel, management, technology and information reporting. Although protection of the marine environment has historically been within the reach of the police powers of the states, shipping has traditionally been governed by federal law. Thus the Washington oil spill prevention statutes and regulations overlap requirements imposed by the federal government. This overlap creates a tension between the power of the state and the power of the federal government.
Intertanko seeks to resolve this tension. Intertanko argues that the Washington oil spill prevention statutes and regulations are preempted by federal statutes and regulations, and by federal treaty obligations through the Supremacy Clause of the United...
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International Ass'n of Independent Tanker Owners (Intertanko) v. Locke
...report any conditions that pose a hazard to the vessel or the marine environment. International Association of Independent Tanker Owners (Intertanko) v. Lowry, 947 F.Supp. 1484, 1488-89 (W.D.Wa.1996) Failure to comply with the BAP Regulations subjects tanker owners to the following: (1) ass......
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...The District Court rejected all of Intertanko's arguments and upheld the state regulations. International Assn. of Independent Tanker Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (WD Wash. 1996). The appeal followed, and at that stage the United States intervened on Intertanko's behalf, ......
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