Exxon Corp. v. U.S. Secretary of Transp., CS-96-204-AAM.
| Decision Date | 04 April 1997 |
| Docket Number | No. CS-96-204-AAM.,CS-96-204-AAM. |
| Citation | 978 F.Supp. 946 |
| Parties | EXXON CORPORATION, Plaintiff, v. UNITED STATES SECRETARY OF TRANSPORTATION, Defendant. |
| Court | U.S. District Court — District of Washington |
William D. Symmes and Leslie Weather-head, Witherspoon, Kelley, Davenport & Toole, P.S., Spokane, WA and Robert C. Harrison of Exxon Co. Law Dept, Houston, TX, for Plaintiff.
Pamela J. DeRusha, U.S. Attorney's Office, Spokane, WA and Angel Collaku, Dept. of Transp., Research & Special Programs, Washington, DC, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA
BEFORE THE COURT are the parties' cross-motions for summary Judgment. (Ct. Rec. 12 and 16). William Symmes, Esq., Leslie Weatherhead, Esq., Witherspoon, Kelley, Davenport & Toole, P.S., and Robert C. Harrison, Esq., Exxon Company, U.S.A., represent plaintiff. Pamela J. DeRusha, Esq., Assistant United States Attorney, and Angel Collaku, Esq., Research and Special Programs Administration (RSPA), represent defendant.
On July 17, 1995, the U.S. Department of Transportation (DOT), Research and Special Programs Administration (RSPA), Office of Pipeline Safety (OPS), entered a Final Order finding plaintiff's (Exxon's) Spokane, Washington facility in violation of various DOT regulations pertaining to the "Transportation of Hazardous Liquids by Pipeline." 49 C.F.R. Part 195. These regulations were promulgated pursuant to the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. § 60101, et seq. (hereinafter "HLPSA"). DOT's Final Order directed plaintiff to take certain action to bring it into compliance with pipeline safety regulations.
Plaintiff's complaint seeks a declaratory judgment that its terminal facilities in Spokane are not governed by or subject to the HLPSA or the regulations promulgated thereunder, and therefore that DOT's July 17, 1995 Final Order is invalid. Plaintiff alleges DOT acted in excess of its statutory and regulatory authority.1
Defendant (DOT) filed an answer and counterclaim in response to the complaint, seeking judicial enforcement of its Final Order. On February 13, 1997, defendant filed a Motion to Withdraw Counterclaim. (Ct. Rec.28). Apparently, plaintiff has now complied with the requirements of the July 17, 1995 Final Order. Plaintiff does not oppose the motion. Accordingly, defendant's Motion to Withdraw Counterclaim (Ct.Rec.28) is GRANTED and the counterclaim is DISMISSED as moot. Defendant's Motion to Supplement the Administrative Record (Ct. Rec.25) is likewise GRANTED. The records to be supplemented pertain to plaintiff's compliance with the Final Order. The motion is unopposed.
Plaintiff (Exxon) contends its compliance with DOT's order does not render its complaint moot. Defendant has not moved the court for dismissal of the complaint on the basis of mootness. In order to review a case, a court must be presented with an actual controversy. An exception to the mootness doctrine is an issue which is capable of repetition, yet evading review. This exception is available only if the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation the same complaining party will be subject to the same action again. Matter of Bunker Ltd. Partnership, 820 F.2d 308, 312 (9th Cir.1987) (citations omitted).
In Bunker, the specific question was whether there was a reasonable expectation the Environmental Protection Agency (EPA) would again seek to enter and inspect Bunker's premises by obtaining an administrative warrant under a particular provision of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980). The circuit found that a subsequent change in the CERCLA provision did not allow for such a reasonable expectation.
In the instant case, there is no indication of a change in the HLPSA. Therefore, it is reasonable to expect DOT will in the future continue to assert authority over Exxon's Spokane facility pursuant to HLPSA, inspect the facility on that basis, and write the plaintiff up for any further alleged regulatory violations. Accordingly, although the particular circumstances giving rise to this controversy have come to an end (i.e. Exxon has remedied violations of particular DOT regulations), it is appropriate for this court to decide the case on the basis of the "capable of repetition, yet evading review" exception.
The parties agree there are no issues of material fact and the controversy can be resolved as a matter of law.
Exxon owns and operates a petroleum storage and warehouse facility in Spokane. This facility includes seven storage tanks which are connected to the Yellowstone Pipeline. Petroleum product is received via the pipeline and stored for delivery to customers. The Spokane facility has no devices which can be used to control or monitor the flow of product through the pipeline. Some of the product is "reinjected" into the pipeline for delivery to Exxon customers located further down the pipeline. For example, between April and September 1993, approximately 29% (1.53 million barrels) of product was reinjected into the pipeline. The remaining product was delivered to customers in the Spokane area, typically by truck transport.
On March 15, 1993, the Office of Pipeline Safety (OPS) conducted an on-site safety inspection of the Spokane facility. On August 20, 1993, OPS issued to plaintiff a Notice of Probable Violation and Proposed Compliance Order, alleging various violations of HLPSA regulations. Plaintiff contested the "Notice" and eventually a hearing was had before OPS on February 3, 1994. On July 17, 1995, OPS issued its Final Order finding plaintiff was in violation of various regulations and ordering compliance therewith.
OPS concluded plaintiff is engaged in the transportation of hazardous liquid as defined by 49 U.S.C. § 60101(a)(22): "... the movement of hazardous liquid by pipeline, or the storage of hazardous liquid incidental to the movement of hazardous liquid by pipeline, in or affecting interstate or foreign commerce." (Emphasis added). Based on plaintiff's admission it had reinjected into the pipeline as much as 29% of the hazardous liquid in its tanks, OPS found plaintiff's tanks "are not being used simply for storage, but are being used to efficiently provide petroleum product to purchasers downstream." According to OPS, plaintiff's tanks are used for "temporary holding purposes for subsequent reinjection of petroleum products into the line." (Administrative Record (AR), Ex. 10 at pp. 2-3).
Furthermore, OPS found plaintiff's tanks are "breakout tanks" as that term is defined in the applicable regulation, 49 C.F.R. § 195.2(b), because they are used to "receive and store hazardous liquid transported by a pipeline for reinjection and continued transportation by pipeline." (AR, Ex. 10 at p. 2).
5 U.S.C. § 706 provides that a reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Among the powers of the reviewing court is to hold unlawful and set aside agency action, findings and conclusions found to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(C). A reviewing court may also hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
According to Chevron U.S.A. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), when a court reviews an agency's construction of the statute which it administers, there are two questions which must be addressed. First, is whether Congress has directly spoken to the precise question at issue. "If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781. If the statute is silent or ambiguous with respect to the specific issue, the question is whether the agency's answer is based on a permissible construction of the statute. Id. at 843, 104 S.Ct. at 2781-82. The court need not conclude the agency construction was the only one it (the agency) permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Id. at 842, n. 11, 104 S.Ct. at 2782 n. 11.
If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to formulate an appropriate regulation. Such regulations are controlling unless they are arbitrary, capricious, or manifestly contrary to the statute. If the legislative delegation is implicit, the court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. at 843-44, 104 S.Ct. at 2781-83. "[C]onsiderable weight is to be accorded to an executive department's construction of a statutory scheme it is entrusted to administer. ..." Id. at 844, 104 S.Ct. at 2782-83. The court must defer to the agency's interpretation of the statute if it is reasonable and consistent with the statute's purpose. Chemical Mfrs. Ass'n v. U.S. E.P.A., 919 F.2d 158, 162-63 (D.C.Cir.1990), citing, Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83.
Defendant contends that since plaintiff's tanks are connected to the Yellowstone Pipeline and are used to receive petroleum product and reinject it into the pipeline, they are used in the "storage of hazardous liquid incidental to the movement of hazardous liquid by pipeline." Defendant asse...
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