Hornbeck Offshore Transp., LLC v. U.S. Coast Guard

• Decision Date: 27 March 2006
• Docket Number: No. Civ.A. 04-1724 CKK.,Civ.A. 04-1724 CKK.
• Citation: 424 F.Supp.2d 37
• Parties: HORNBECK OFFSHORE TRANSPORTATION, LLC, Plaintiff, v. UNITED STATES COAST GUARD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

424 F.Supp.2d 37

HORNBECK OFFSHORE TRANSPORTATION, LLC, Plaintiff, v. UNITED STATES COAST GUARD, et al., Defendants.

No. Civ.A. 04-1724 CKK.

United States District Court, District of Columbia.

March 27, 2006.

Lawrence I. Kiern, Winston & Strawn, Washington, DC, for Plaintiff.

Diane M. Sullivan, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Plaintiff Hornbeck Offshore Transportation, LLC ("Hornbeck"), a limited liability company which owns and operates oil transport vessels, brings this action against Defendants the United States Coast Guard and the United States of America (collectively, "Defendants" or "the Agency") alleging that (1) the Agency's assignment of a phase-out date under the Oil Pollution Act of 1990 ("OPA 90"), Pub.L. 101-380, 104 Stat. 484 (1990), of January 1, 2005, rather than January 1, 2015, for its tank barge "ENERGY 8701" was contrary to law, arbitrary and capricious, and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., see First Am. Compl. ¶¶ 31-35 (Count I—Violation of APA), ¶¶ 36-40 (Count II—Violation of APA); and (2) the Agency's failure to provide certain requested documents constituted a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, id. ¶¶ 41-47 (Count III—Violation of FOIA), ¶¶ 48-54 (Count IV—Violation of FOIA).¹ Currently before the Court is Plaintiff's Motion for Summary Judgment as to Counts I and II of Plaintiffs First Amended Complaint (Plaintiffs APA claims), Defendants' Opposition and Cross-Motion for Summary Judgment on Counts I and II, and Plaintiffs Opposition and Reply.

Upon a searching examination of the parties' filings, the attached exhibits, the relevant case law, and the entire administrative record provided, the Court shall grant Plaintiffs Motion for Summary Judgment as to Counts I and II of Plaintiffs First Amended Complaint and shall deny Defendants' Cross-Motion for Summary Judgment.

I: BACKGROUND

A. Statutory Framework

1. The Oil Pollution Act of 1990

In response to the disastrous March 1989 oil spill involving the EXXON VALDEZ in Prince William Sound, Alaska, Congress passed the Oil Pollution Act of 1990 ("OPA 90"), Pub.L. 101-380, 104 Stat. 484 (1990). OPA 90 requires that all newly constructed tank vessels engaged in the marine transportation of oil in the United States be constructed with double hulls. See 46 U.S.C. § 3703(a) ("Except as otherwise provided in this section, a vessel to which this chapter applies shall be equipped with a double hull ...."). A "double hull" is a ship hull design method where the bottom and sides of the ship have two complete layers of watertight hull surface: one outer layer forming the normal hull of the ship, and a second inner hull which is somewhat further into the ship, perhaps a few feet, which forms a redundant barrier to seawater in case the outer hull is damaged and leaks. Double hulls are significantly safer than single hulls. In the case of grounding or other underwater damage, most of the time the damage is limited to flooding the bottom compartment, and the main occupied areas of the ship remain intact. In the case of a collision with another ship, most of the time the damage is limited to flooding the side compartment, and the main occupied compartments also remain intact. The provisions of the OPA requiring that all newly constructed tank vessels be provided double hulls apply, inter alia, to a U.S. vessel if it "is constructed or adapted to carry, or carries, oil in bulk as cargo or cargo residue" and when the vessel is "operating on the waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone." Id. § 3703a(a)(1) & (2).

In addition to its requirements regarding the construction of double hulled tank vessels, OPA 90 also requires that all U.S. single hull tank vessels, including tank barges, existing at the time of OPA 90's enactment be retrofitted with double hulls in order to qualify for operation on the navigable waters of the United States or the waters of the Exclusive Economic Zone of the United States. Id. § 3703a(c). Any single hull tank vessel not retrofitted in such a manner must be phased out of service in accordance with a statutory schedule, which began to have effect on January 1, 1995. Id. § 3703a(c)(3). The phase-out schedule of OPA 90 is based upon the gross tonnage, hull design, and construction date of the subject vessel. Id. For instance, for single hull tank vessels constructed prior to 1980, OPA 90 provides that vessels with a gross tonnage of 5000 gross tons or more must be phased-out as of January 1, 2005, while vessels with a gross tonnage of less than 5000 tons must be phased out as of January 1, 2015. See id. § 3703a(c)(3)(A) &amp (c)(2). Whether a single hull vessel that was built before 1980 is phased out in 2005 or 2015 depends exclusively on the vessel's gross tonnage.

2. The 1997 Amendment to the OPA

For the seven years following its passage, OPA 90 contained no specific authorization for waiving or extending phase-out deadlines. However, because its deadlines were based in part on the gross tonnage of the vessel, with larger vessels generally having earlier phase-out dates, owners began obtaining de facto extended deadlines by reducing the documented carrying capacity of their vessels. See U.S. Gen. Accounting Office, Maritime Industry: As U.S. Single-Hull Oil Vessels Are Eliminated, Few Double Hull Vessels May Replace Them 10 (2000), attached as Defs.' Cross-Mot. for Summ. J., Ex. B. For example, a vessel owner could reduce the gross tonnage of a vessel by deducting cargo-carrying tanks from a vessel's gross tonnage by re-designating such tanks as specially segregated tanks that carried only ballast water. Id. at 11.

The so-called Frelinghuysen Amendment, passed on November 18, 1997, changed this landscape, eliminating this industry practice of reducing the gross tonnage of a vessel scheduled for OPA 90 phase-out so as to obtain a later phase-out date. Id. at 10. Through the Frelinghuysen Amendment to OPA 90, Congress amended 46 U.S.C. § 3703a by adding the following pertinent provision:

(e)(1) For the purposes of this section and except as otherwise provided in paragraphs (2) and (3) of this subsection, the gross tonnage of a vessel shall be the gross tonnage that would have been recognized by the Secretary on July 1, 1997, as the tonnage measured under section 14502 of this title, or as an alternate tonnage measured under section 14302 of this title as prescribed by the Secretary under section 14104 of this title.

46 U.S.C. § 3703a(e)(1).

3. Tonnage Measurement Systems

A vessel's gross tonnage measurement describes its internal volume, not the weight the vessel can carry or the weight of the vessel itself. As is plain upon a reading of 46 U.S.C. § 3703a(e)(1), there are two measurement systems recognized by the United States. Measurement under 46 U.S.C. § 14502 is the "Regulatory" measurement system, which yields the vessel's "Regulatory tonnage" commonly denominated "GRT." See 46 U.S.C. § 14501 et seq. Measurement under 46 U.S.C. § 14302 conforms with the International Convention on Tonnage Measurement of Ships of 1969, which yields the vessel's "Convention tonnage" commonly denominated "ITC." See 46 U.S.C. § 14301 et seq. The difference between a particular vessel's Regulatory tonnage and Convention tonnage solely reflects the different measuring criteria of each system for establishing the tonnage. In a typical case, the Convention tonnage system of measurement yields a higher gross tonnage than the Regulatory system. United States law requires that "a vessel engaged in a foreign voyage" be measured under the Convention measurement system. See 46 U.S.C. § 14301(a)(3); 46 C.F.R. § 69.11(a)(1).

B. The Decision Regarding ENERGY 8701's Phase-Out

1. ENERGY 8701

ENERGY 8701, the tank barge at the center of this dispute, is a U.S.-flag tank barge designed to carry oil or other liquid cargo. See Admin. R. at 4, 18. A "tank barge" is a non-self-propelled vessel specially constructed or converted to carry oil hazardous material, or other bulk liquid in tanks. See 46 U.S.C. § 2101(39); 33 U.S.C. § 2701(34); 46 C.F.R. § 30.10-65, 151.03-51. Constructed in 1976, see Admin. R. at 4; First Am. Compl. ¶ 19, ENERGY 8701 is 360 feet long, 64 feet wide, and 27 feet deep; when fully loaded, the vessel is capable of carrying 85,000 barrels (= 3,570,000 million gallons) of oil, see Admin. R. at 16, 31. On August 25, 1976, the United States Coast Guard issued a Certificate of Admeasurement for ENERGY 8701 which recorded the vessel's gross tonnage as 5323.19 gross tons (GRT) using the Regulatory measurement system. See id. at 31. Because ENERGY 8701 was only engaged in domestic trade at that time, its Convention tonnage was not measured at that point. Importantly, since its original construction, ENERGY 8701 has undergone no physical alterations to reduce its tonnage. See id. at 14.

The original owner of ENERGY 8701 was a company called Spentonbush/Red Star Companies. See id. at 4. Plaintiff acquired the barge from Spentonbush through an affiliated company, called LEEVAC Marine Inc., in June 2001. See id. at 4. For over two and a half years, Plaintiff operated ENERGY 8701 and made no request to modify its gross tonnage measurement of 5323 GRT. See id. at 15-16, 32. Indeed, for nearly 30 years following its 1976 construction, no owner or operator of ENERGY 8701 sought to have that measurement changed or to substitute an admeasurement based on Convention tonnage for the original measurement of 5323 gross tons (GRT) under the Regulatory system. Id. When Plaintiff acquired ENERGY 8701, it believed that the barge would be phased out of service on January 1, 2005; indeed, the Coast Guard Certificate of Inspection for ENERGY 8701, dated November 27, 2001 (five months after Plaintiff's purchase of the vessel),...