UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
WILMINA SHIPPING AS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-2184 (ABJ)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
In this action, plaintiffs Wilmina Shipping AS and Wilhelmsen Marine Services AS have
challenged an order issued by the U.S. Coast Guard on May 21, 2010. Plaintiffs own and
operate a Norwegian-flagged oceangoing tank vessel, the M/T Wilmina. The Coast Guard
issued the order in question after inspecting the ship when it was docked in Corpus Christi,
Texas. Based on the inspections, witness statements, and evidence collected from the Wilmina,
the agency concluded that the ship’s pollution control devices were inoperable or disarmed and
that the ship had failed to comply with its own Safety Management System. It issued an order
revoking the ship’s Certificate of Compliance and ordered that the ship could not reenter U.S.
waters for three years or until after plaintiffs had developed and implemented an acceptable
Environmental Compliance Plan (“ECP”) and had passed one year of satisfactory audits.
Plaintiffs sued, asserting that the agency did not have the statutory authority to issue the
order and claiming due process violations. Compl. [Dkt. # 1]. They asked the Court to declare
that the Coast Guard violated the Administrative Procedure Act (“APA”), the Port and
1
Waterways Safety Act (“PWSA”), and the U.S. Constitution. Id. ¶¶ 145–58 and Prayer for
Relief.
The Court bifurcated the proceedings in this case, directing the parties to brief the legal
issues of the agency’s authority and due process claims first. After receiving briefs and hearing
oral argument on these issues, 1 the Court ruled that the Coast Guard did have the statutory
authority to order plaintiffs to develop and implement an environmental compliance plan that
was acceptable to the Coast Guard and to require a year of satisfactory audits before permitting
the ship to reenter U.S. waters, but that it did not have the authority to simply ban the ship from
U.S. waters for three years. Wilmina Shipping AS v. DHS, 934 F. Supp. 2d 1 (D.D.C. 2013).
The Court also held that plaintiffs’ due process rights were not violated. Id.
Following that decision, defendants filed a motion for summary judgment on the merits,
asserting that the Coast Guard’s order was supported by the administrative record. Defs.’ Mot.
for Summ. J. on the Merits (“Defs.’ Mot.”) and Mem. in Supp. (“Defs.’ Mem.”) [Dkt. # 38] at 1,
citing 5 U.S.C. § 706(2). Plaintiffs filed a cross-motion for summary judgment, presenting three
arguments: (1) that the order is not severable, so the Court’s finding that one part of the order
was invalid makes the entire order invalid; (2) that the agency violated its own policies and
procedures in issuing the order; and (3) that the evidence in the administrative record did not
support the order. Pls.’ Opp. and Cross-Mot. for Summ. J. [Dkt. ## 39, 40] (“Pls.’ Opp. &
Cross-Mot.”).
Upon consideration of the parties’ arguments, the Court holds that the Coast Guard’s
order is severable, that the agency did not violate its policies and procedures in issuing the order,
1 See Defs.’ Mot. for Summ. J. [Dkt. # 13], Pls.’ Opp. and Cross-Mot. for Summ. J. [Dkt.
## 20, 21], Defs.’ Reply and Opp. to Cross-Mot. [Dkt. ## 22, 23], and Pls.’ Reply [Dkt. # 24].
The Court heard oral argument on December 4, 2012.
2
and that the evidence in the administrative record supports the order. Accordingly, the Court
will grant defendants’ motion for summary judgment and deny plaintiffs’ cross-motion for
summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550
U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam).
Under the Administrative Procedure Act, a court must “hold unlawful and set aside
agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion,
3
or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); in excess of statutory authority,
§ 706(2)(C); or “without observance of procedure required by law.” § 706(2)(D). But the scope
of review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). An agency’s decision is presumed to be valid, see Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and a court must not “substitute
its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. at 43. A
court must be satisfied, though, that the agency has examined the relevant data and articulated a
satisfactory explanation for its action, “including a rational connection between the facts found
and the choice made.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations
omitted) (internal quotation marks omitted). The party challenging the agency action bears the
burden of proof. Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C.
Cir. 2009).
BACKGROUND
Because many of the facts in this case were sets forth in the Court’s earlier ruling,
Wilmina Shipping AS v. DHS, 934 F. Supp. 2d at 3–5, the Court will only recount the facts
relevant to the parties’ current motions.
On May 3, 2010, the day before the Wilmina was scheduled to arrive at the Port of
Corpus Christi, the Coast Guard received a phone call from Robert Pabillar, a former crew
member of the Wilmina. Pabillar told the Coast Guard that he had evidence that the crew was
bypassing the ship’s pollution control equipment and discharging oily bilge waste into the ocean.
4
See Eckard Statement, Administrative Record (“AR”) 2 15–17; Simser Statement, AR 18–20;
Toepfer Statement, AR 21–26.
The next day, May 4, 2010, the Wilmina arrived at the port, and the Coast Guard boarded
the ship to conduct its routine Port State Control Inspection. Port State Control Report of
Inspection, AR 3–4. The agency issued a Certificate of Compliance (“COC”), certifying that the
vessel had “been examined and found to be in compliance with all applicable U.S. and
international marine safety and environmental protection standards.” Certificate of Compliance,
AR 5–6. The COC stated that:
For this Certificate of Compliance to remain in effect, the vessel shall be
maintained to the safety and construction standards as examined for
compliance with applicable marine safety and environmental protection
laws and international conventions. . . .
1. Entries shall be made on this certification in accordance with current
instructions for the following types of foreign vessel examinations: . . .
Other compliance examinations (i.e. – MARPOL [the International
Convention to Prevent Pollution from Ships], Ballast Water, etc.) or
Deficiency checks . . . .
Id., AR 6.
During that inspection, Pabillar gave one of Coast Guard officers a flash drive with
photos and video, which the inspectors viewed after returning to their office. Simser Statement,
AR 18. According to a report from Coast Guard officer Chris Eckard:
2 The Administrative Record in this case was filed with the Court on May 15, 2010. [Dkt.
# 9]. An index of the administrative record appears on the docket [Dkt. # 16], but the entire
record was not entered on the electronic docket because of its size. A copy of the administrative
record may be viewed at the Clerk’s Office. Page citations to the administrative record refer to
the page numbers appearing at the top right corner of each page in the record.
5
The video clearly showed a[n] engine room where a bypass hose (magic
pipe) was attached to an overboard discharge valve. The bonnet had been
taken out of the valve and that is where the bypass hose had been attached
with a flange made for this purpose. The bonnet and stem could be seen
laying on the deck near the valve. A dark oil-like substance could be seen
seeping out of the connection. The video also showed the entire length of
the hose and it connected to the ship[’]s piping underneath the deck plates.
There was also a video showing the hiding location of the bypass hose. At
this point it was determined that a MARPOL violation most likely had
occurred and the decision was made to perform an expanded MARPOL
inspection on the ship.
Eckard Statement, AR 15–17; AVI files, AR 766–68. As a result, the Coast Guard reboarded the
ship later that same day to perform a second, expanded inspection. See AR 27.
At the expanded inspection, the Coast Guard interviewed Pabillar and other crew
members, viewed the ship’s pollution control and other systems, and collected samples and
evidence from the ship. See Eckard Statement, AR 15–16; Simser Statement, AR 19. Pabillar,
who had been terminated for cause from the ship’s crew a few weeks earlier for poor work
performance, told inspectors that the crew had discharged oily waste while in transit. See AR 19.
He said that motorman Cesar Cruz told him that the ship’s crew was bypassing the oily water
separator. AR 15. Pabillar also told the inspector that he filmed the video provided to the Coast
Guard with Cruz. AR 15–16.
Inspectors interviewed Caesar Cruz, who told them that he helped the ship’s second
engineer pump oily waste overboard at least four times, and that he thought another fitter, who
was no longer a crew member, made the bypass hose about five months before. Eckard
Statement, AR 16. Cruz identified the valves and pump used to pump oil sludge overboard.
Toepfer Statement, AR 23; photos AR 794, 798–99, 801–03, 805, 808, 811. Cruz also said that
the incinerator, which is supposed to burn oil sludge, had not worked properly for the past two
6
months. Id. The Chief Engineer also stated he did not think the incinerator has been working.
Id. at 15.
Three days later, on May 7, 2010, Coast Guard inspectors collected samples from the
ship’s bilge and sludge tanks, which were sent to a Coast Guard laboratory for analysis. See AR
179–84.
As a result of the second inspection, Coast Guard personnel identified a number of
deficiencies in the ship’s pollution control equipment and reporting protocols:
• The incinerator was not working properly. Eckard Statement, AR 15–
17.
• The printer used to record alarms to notify crew of problems with the
ship’s pollution control equipment was not working. Toepfer
Statement, AR 22; Eckard Statement AR 15.
• The crew was unfamiliar with the vessel’s Safety Management System
requirements for reporting equipment failures. Port State Control
Report of Inspection-Form B, AR 8.
They summarized their findings as follows:
A boarding was conducted on the Tank Vessel, WILMINA, on 04 May
10, to conduct an expanded MARPOL inspection. The T/V WILMINA is
[Norwegian] flagged, has a gross tonnage of 79,494 and was boarded in
the Port of Corpus Christi, TX. During the inspection, it was found that
oil had been pumped overboard, bypassing the oily water separator, before
reaching U.S. waters. This was demonstrated by a video (CG-05)
provided by a whistleblower and interviewing crewmembers (CG-06).
Further investigation found oil in the overboard discharge valve and skin
valve (CG-04), also demonstrating that oil had been pumped overboard.
Upon being presented with the Oil Record Book (CG-01), it was found
that there was no record of the oil being pumped overboard as required in
33 CFR 151.25(g). After thorough investigation it was also found that
there was no record of unaccounted oil in the oil record book weekly
soundings (CG-01). 2 crewmembers came forward and admitted to
participating or witnessing the discharge.
Enforcement Summary, AR 27–32. The Coast Guard listed these deficiencies in the second Port
State Control Report of Inspection issued that day. AR 7–9 (stating the ship’s oily water
7
separator, a device used to remove oil from the ship’s bilge water, was inoperable; a discharge
pipe, which was supposed to run between the oily water separator and through the ship’s hull,
had been removed; and parts of the oily water separator were found in a chemical locker; engine
room alarms that were supposed to sound if the pollution control equipment detected a certain
level of oil in the water to be discharged were inoperable; and the ship failed to maintain proper
records in its oil record book).
On May 21, 2010, the Captain of the Port (“COTP”) issued the disputed order, COTP
Order No. 093-10, which set forth the agency’s findings that the ship had “discharged oily
contaminated bilge waste and/or sludge in contravention of MARPOL on several occasions and
entered the United States port of Corpus Christi, Texas with a[n] oil record book with false
entries.” AR 1. The COTP stated: “the willful noncompliance with MARPOL and APPS 3 that
occurred on board your vessel creates a threat to the marine environment. . . . Therefore, I am
revoking your vessel’s Certificate of Compliance in accordance with 46 U.S.C. § 3711(c).” AR
1–2. The order further provided:
Once your vessel departs port it may not enter the Sector Corpus Christi
Marine Inspection Zone and Captain of the Port Zone, as defined in 46
C.F.R. 3.40-35, for a period of three (3) years, or until the vessel has
developed and successfully implemented an Environmental Compliance
Plan (ECP) to the satisfaction of the U.S. Coast Guard (Commandant CG-
5432), 2100 Second Street S.W. Stop 7581, Washington, DC 20593-7581.
Successful implementation of an agreed upon ECP must include a period
of satisfactory audits for at least a one (1) year period, after which I will
3 APPS refers to the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901 et seq., which
implements MARPOL in the United States.
8
consider allowing it to enter the Sector Corpus Christi Marine Inspection
Zone and Captain of the Port Zone.
Order, AR 2. 4
ANALYSIS
Plaintiffs have raised two threshold legal issues that they urge the Court to consider
before going on to address defendants’ argument on the merits that the administrative record
supports the Coast Guard’s order. They challenge the severability of the Coast Guard’s order,
and they also argue that the agency abused its discretion by departing from previously
established regulations and policies in issuing the order. Pls.’ Opp. & Cross-Mot. at 7–21.
Defendants assert that the Court has already ruled on the scope of the agency’s authority so the
law-of-the-case doctrine applies, and the Court should not revisit these matters. Defs.’ Reply to
Pls.’ Resp. & Resp. in Opp. to Pls.’ Cross-Mot. for Summ. J. [Dkt. ## 42, 44] (“Defs.’ Reply”) at
3–5, citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Under this
doctrine, “courts generally to refuse to reopen what has been decided.” Id. at 817, quoting
Messinger v. Anderson, 225 U.S. 436, 444, (1912). The Court did address the scope of the
agency’s statutory authority in its earlier ruling, and its ruling striking down only a portion of the
order was an implicit recognition of its power to do so. But since neither the parties’ prior briefs
nor the ruling expressly addressed the question of the order’s severability or whether the agency
violated existing regulations and policies in issuing the order, the Court will take up those issues
here.
4 On May 18, 2010, Pabillar was found to have child pornography on his cell phone. AR
351–354. He was indicted on June 23, 2010, AR 357–59, and subsequently deported. On May
21, 2010, the Department of Justice informed plaintiffs that its investigation of the Wilmina for
alleged environmental crimes had been terminated and no criminal charges would be brought
against the vessel or its crewmembers. Pls.’ Opp. & Cross-Mot. at 4.
9
I. The Coast Guard’s Order is Severable.
The Court has ruled that the order’s three-year ban of the Wilmina was invalid, but that
its requirement that plaintiffs implement an ECP and complete a year of successful audits before
being allowed back into U.S. waters “fell well within the scope of the Coast Guard’s authority
under the statute.” Wilmina Shipping AS v. DHS, 934 F. Supp. 2d at 13–15. Plaintiffs assert that
because the Court found the first part of the agency’s order to be invalid, the Court must declare
the entire order invalid: according to plaintiffs, the Court “is not permitted to deconstruct a
challenged agency action and uphold only those portions of the agency’s actions which the Court
finds to be lawful.” Pls.’ Opp. & Cross-Mot. at 8–9, citing Comcast Corp. v. FCC, 579 F. 3d 1,
10 (D.C. Cir. 2009 (Randolph, J., concurring).
But the APA specifically provides that a reviewing court may hold unlawful an “agency
action,” 5 U.S.C. § 706(2)(A), and the definition of agency action “includes the whole or a part
of” an agency order. 5 U.S.C. § 551(13) (emphasis added); see also Catholic Soc. Serv. v.
Shalala, 12 F.3d 1123, 1128 (D.C. Cir. 1994) (holding that courts may reject only “part of a rule
found to be invalid” because “[i]t would . . . exceed the statutory scope of review for a court to
set aside an entire rule where only a part is invalid, and where the remaining portion may
sensibly be given independent life”). So the Court rejects plaintiffs’ contention that a court is
only empowered to strike down a multi-part order in its entirety.
Plaintiffs also argue that because the Court found the three-year ban in the order to be
invalid, the alternative requirement for a compliance plan and one year of audits is also invalid
because the order is not severable. Pls.’ Opp. & Cross-Mot. at 7–13. “‘Whether an
administrative agency’s order or regulation is severable . . . depends on the issuing agency’s
intent.’” Davis Cnty. Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997), quoting
10
North Carolina v. FERC, 730 F.2d 790, 795–96 (D.C. Cir. 1984). In analyzing whether an
agency action is severable, courts consider whether the parts of the order are “intertwined” or
whether “they operate entirely independently of one another.” Id. In doing so, they examine the
purpose of the agency’s action and whether the action “sensibly serve[s] the goals for which it
was designed” without the severed portion. MD/DC/DE Broadcasters Ass’n v. FCC, 253 F.3d
732, 734 (D.C. Cir. 2001); see also Assoc. of Private Colleges & Universities v. Duncan, 870 F.
Supp. 2d 133, 155–57 (D.D.C. 2012) (holding that when regulations are intended to have
different purposes and are not dependent on each other, they are not intertwined). According to
the D.C. Circuit, reviewing courts should ask “whether the [agency] would have adopted the
same [result] . . . had the [agency] not erroneously interpreted [the statute].” Davis Cnty. Solid
Waste Mgmt. at 1459. Severance and affirmance of a portion of an administrative regulation is
improper if there is “substantial doubt” that the agency would have adopted the severed portion
on its own. Id. And the agency’s intent must be rational, meaning that “the remainder of the
regulation [can] function sensibly without the stricken provision.” MD/DC/DE Broadcasters
Ass’n, 253 F.3d at 734.
Plaintiffs maintain that the original two alternatives – the three-year ban and the
compliance program with audits – are intertwined and not severable, and they point to the fact
that agency counsel stated at the hearing that the two provisions were supposed to operate
together as a carrot and a stick. Pls.’ Opp. & Cross-Mot. at 10–11, citing Tr. of Dec. 4, 2012
Mot. Hr’g (“Tr.”) [Dkt. # 25] at 16–17. They also argue that the text of the order and the
agency’s orders from administrative appeals support this position. Pls.’ Opp. & Cross-Mot. at
11.
11
In response, defendants emphasize that the order used the disjunctive term “or” when
laying out the two possible sanctions – a three year ban or an acceptable compliance plan –
thereby indicating that the two avenues were meant to be independent of one another. Defs.’
Reply at 6. They also argue that the Coast Guard would have issued the order even without the
three-year ban because the agency’s goal is to protect the marine environment, and the remaining
part of the order serves that goal. Defs.’ Reply at 6.
The statements of counsel are not determinative in this case. See Davis County at 1457
(upholding portion of EPA rule despite prior statement of EPA counsel that the entire rule would
need to be vacated if part of the rule was invalid). Counsel’s use of the word “and” cannot alter
the plain use of the word “or” in the order. And even if it were appropriate to consider counsel’s
method of characterizing the order in deciding this issue, the metaphor counsel selected does not
prove plaintiff’s point. Just because the agency originally adopted a two-pronged approach, it
does not necessarily follow that it could not utilize either a carrot or a stick alone. In this case,
the order imposed alternative sanctions, so the Court can clearly find that it was the Coast
Guard’s intent all along that either one alone would suffice.
Furthermore, although the order does not spell out the agency’s intention regarding its
severability, it does state that the purpose of the order is to correct the Wilmina’s failure to
comply with international conventions and standards that govern the safety of crews, vessels, and
“the marine environment and U.S. ports and waterways.” Order, AR 1.
The existing system of audits required by the ISM Code is obviously not
being properly implemented by your company on your vessel. Such a
failure can only be corrected by a serious and meaningful commitment by
your company which cannot be satisfactorily demonstrated without an
additional mandatory oversight system that requires multiple vessel audits
by independent auditors to verify compliance.
12
Id. at 1–2. Given this purpose, the Court holds that the requirement that the vessel develop a
successful compliance plan, even without the specter of the alternative sanction of a three-year
ban, “sensibly serve[s] the goals for which it was designed.” MD/DC/DE Broadcasters Ass’n,
253 F.3d at 734. The three-year ban, on the other hand, does not serve the purpose of protecting
the environment or correcting the Wilmina’s deficiencies, since it would have permitted the ship
to return to U.S. waters after three years without addressing the underlying environmental
violations. Given this, the Court finds that the order is severable and the agency would have
adopted the order without the three-year ban. 5
II. The Coast Guard Did Not Abuse its Discretion by Violating its Regulations and
Policies when it Issued the Order.
An agency must follow its own rules, procedures, and policies. See Reuters Ltd. v. FCC,
781 F.2d 946, 950-51 (D.C. Cir. 1986). Various international conventions subject a foreign-
flagged vessel to inspection by a country when that vessel is in the country’s jurisdictional
5 Plaintiffs cite portions of the administrative appeals process to support their position, but
the cited letters do not support their argument. Plaintiffs cite the Eighth Coast Guard District’s
statement that “the Order allows [the owner and operator] to reduce the period of exclusion from
U.S. waters from three years to one year if [the vessel owner and operator] successfully
implements an effective Environmental Compliance Plan (ECP).” Pls.’ Opp. & Cross-Mot. at
11, citing AR 432–435. They also quote the Commander of the Coast Guard Atlantic Area’s
statement that, “[t]he Order allows the M/T WILMINA to reduce the period of exclusion from
U.S. waters from three years to one upon the successful implementation of an effective
Environmental Compliance Plan (ECP) as outlined in the order.” Id. at 11–12, citing AR 487.
And they quote the statement from the Coast Guard Director of Prevention Policy at Coast Guard
Headquarters that “[y]ou argue that the three year barment is draconian. However, you neglect
to discuss the other option. Here, the COTP Order outlined that the M/T WILMINA could
demonstrate compliance by implementing an environmental compliance plan (ECP) over a one
year period.” Id. at 12, citing AR 496–508. All of these statements plainly indicate that the ECP
is an alternative to the three-year ban and that the two provisions were independent from each
other.
13
waters. 6 In the United States, this inspection authority is implemented into U.S. law through 46
U.S.C. §§ 3301–18, and the Coast Guard is charged with conducting these inspections through
its Port State Control Program. U.S. Coast Guard Marine Safety Manual, COMDTINST
M16000.7A (“Marine Safety Manual”), Vol. II (Material Inspection) at Section D, Ch. 2 at D2-
7. 7
According to plaintiffs, the Coast Guard violated its own policies and regulations
governing inspections and the issuance of COTP orders and control actions when it issued the
May 20, 2010 order. Pls.’ Opp. & Cross-Mot. at 14–21. Specifically, they cite the following:
• 33 CFR Part 160, Subpart B - Control of Vessel and Facility
Operations;
• Marine Safety Manual, Vol. II (Material Inspection) Section D, Ch. 2;
• U.S. Coast Guard Navigation and Vessel Inspection Circular No. 06-
03, Change 2, Coast Guard Port State Control Targeting and
Examination Policy For Vessel Security and Safety; 8
6 The Ports State Control program implements various international conventions, including
SOLAS, International Convention on Load Lines 1966 (ICLL); the International Convention for
the Prevention of Pollution from Ships 73/78 (MARPOL); the International Convention on
Standards of Training Certification and Watchkeeping for Seafarers, 1978, as amended in 1995
(STCW 95); the International Labor Organization Convention No. 147, the Convention
Concerning Minimum Standards in Merchant Ships (ILO 147).
7 A copy of this manual appears on the docket of this case at Dkt. # 49.
8 This document is available at http://www.uscg.mil/hq/cg5/nvic/pdf/2003/NAVIC06_03_
Ch2.pdf).
14
• U.S. Coast Guard Navigation and Vessel Inspection Circular No. 04-
05, Port State Control Guidelines For the Enforcement of Management
for the Safe Operation of Ships (ISM Code); 9 and
• Marine Safety Manual, Vol. IV (Ports and Waterways Activities). 10
See Pls.’ Opp. & Cross-Mot. at 14–15, n.20. While most of plaintiffs’ arguments concerning the
validity of the Coast Guard’s action seem to be recapitulations of the legal challenge that has
already been decided, the Court will address each of them below.
A. A criminal conviction is not required.
Plaintiffs first argue that the order imposes a de facto sentence of probationary oversight,
without first obtaining a criminal conviction, and that “there are no authorizing statutes or
regulations that permit [the Coast Guard] to require any vessel owner or operator to implement
an ECP outside of a criminal conviction.” Pls.’ Opp. & Cross-Mot. at 15–16. But the Court has
already held that the PWSA, 33 U.S.C. § 1228, authorizes the agency to require a ship to satisfy
certain requirements before it may reenter U.S. waters and to enforce violations of MARPOL
and APPS, beyond the civil and criminal penalties set out in section 1232 of the PWSA.
Wilmina, 934 F. Supp. 2d at 10–11.
B. The Coast Guard did not violate its regulations and policies governing Port
State Control inspections.
Plaintiffs next argue the order violates various U.S. laws and applicable treaties
governing the actions a state may take following a Port State Control inspection. Pls.’ Opp. &
Cross-Mot. at 17. They emphasize that when the Coast Guard conducted its Port State Control
inspection of the Wilmina, the ship already had its own Safety Management System in place, and
9 This document is available at http://www.uscg.mil/hq/cg5/nvic/pdf/2005/NVIC%2004-
05.pdf).
10 See Dkt. # 49.
15
that it had been issued a Safety Management Certificate by Norway, pursuant to the U.N.
Convention on the Law of the Sea. Pls.’ Opp. & Cross-Mot. at 17 and n.26, citing 1833
U.N.T.S. 397, reprinted in 21 I.L.M. 1261 (1982), Article 92. Plaintiffs further contend there is
“absolutely no mention” in the agency’s own regulations, policy statements, and procedures of
revoking a ship’s Certificate of Compliance for a term of years or demanding remedies beyond
“mere compliance” with existing conventions, laws, and regulations. Pls.’ & Cross-Mot. at 17–
18.
The Court already found that the agency’s action was fully consistent with its obligation
to do just that: to ensure compliance with existing environmental laws. But plaintiffs contend
that the Coast Guard violated a policy that was in place at the time of the order:
Regardless of whether deficiencies must be repaired before commencing
cargo operations, departing port, or returning to the U.S., control actions
must be based on the control authority provided under domestic laws or
international conventions. Compliance with standards other than those
implemented under law, regulation or convention cannot be mandated. It
is incumbent upon the OCMI/COTP and the boarding team that they
thoroughly research requirements to ensure that any control action taken is
authorized under an applicable law, regulation or convention.
Id. at 18, quoting Marine Safety Manual, Vol. II (Material Inspection), Procedures Applicable to
Exercising Control Over Foreign Vessels Under U.S. Jurisdiction, Section D, Ch. 2, at D2-6
(emphasis omitted).
Even if one assumes that the agency was bound by its internal policy manual, there is
nothing in this language that forecloses the agency from implementing a remedy as part of a
control action. The manual simply instructs the agency and the COTP to ensure that control
actions comply with domestic laws and international conventions. Indeed, plaintiffs themselves
note that the same manual provides that control actions “may take several forms including
16
requiring correction prior to returning to the U.S.” Pls.’ Opp. & Cross-Mot. at 18 n.29, citing
Marine Safety Manual, Vol. II (Material Inspection), Section D, Ch. 2.
The manual also provides that a COTP order “can be used to implement a variety of
control options, from simply controlling the vessel’s movement as it departs port to detaining the
vessel in port until deficiencies are corrected.” Id. at D2-6 (emphasis added). The manual
further states that COTP orders are authorized by the PWSA, 33 U.S.C. § 1221, and its
implementing regulations of 33 CFR § 160.113. Id.
As the Court has already held, the PWSA authorized the agency to issue the order.
Wilmina, 934 F. Supp. 2d at 10–14. And the Act’s implementing regulation states that a COTP
“may prohibit any vessel, subject to the provisions of chapter 37 of Title 46, U.S. Code, from
operating in the navigable waters of the United States . . . if . . . the Captain of the Port
determines that the vessel’s history of accidents, pollution incidents, or serious repair problems
creates reason to believe that the vessel may be unsafe or pose a threat to the marine
environment.” 33 C.F.R. § 160.113(a). Accordingly, the Court finds that the agency did not
violate its own Marine Safety Manual in ordering the Wilmina to implement an ECP with audits.
C. The Coast Guard did not violate its policies and regulations regarding its
enforcement of the ISM code.
The ISM Code sets international standards for safe practices in vessel operation and for
the maintenance of a safe work environment onboard vessels. Eisenberg v. Carnival Corp., No.
07-22058-CIV, 2008 WL 2946029, at *3 (S.D. Fla. July 7, 2008). Plaintiffs argue that the order
violates the Coast Guard’s published guidance for its enforcement of the ISM code. Pls.’ Opp. &
Cross-Mot. at 19 and n.31, citing the U.S. Coast Guard Navigation and Vessel Inspection
Circular 04-05, Port State Control Guidelines for the Enforcement of Management for the Safe
17
Operation of Ships (ISM Code) (“Inspection Circular”). 11 They contend that the Inspection
Circular and other unspecified policy statements from the agency identify methods through
which the agency may ensure that ships correct deficiencies but do not authorize “the long term
oversight of the operations of foreign flag vessel.” Id. at 19.
The Inspection Circular sets forth procedures for the Coast Guard to follow when
inspecting ships for compliance with ISM Code Requirements. Inspection Circular at 5–9. It
also provides procedures for enforcement actions when the agency finds a ship is not in
compliance with the ISM Code. Id. at 9–13.
Paragraph 8a of the circular governs Port State Control examinations. Id. at 5–6. It
provides that the agency should check to verify a ship’s compliance with the ISM Code as part of
all Port State Control examinations. Id. Further, paragraph 8a(3) states that the Coast Guard
“should conduct an expanded examination when clear grounds lead the [Port State Control
Officer] to believe that the ship has not effectively implemented its [Safety Management
System].” Id. at 7. 12
Paragraph 8b of the circular provides guidance on enforcement actions the agency may
take when it finds a ship to be out of compliance with the ISM Code:
11 This document is available at http://www.uscg.mil/hq/cg5/nvic/pdf/2005/ NVIC%2004-
05.pdf.
12 This follows the requirements in MARPOL. See MARPOL Art. 5 ¶ 2 (providing that an
inspection by a port state “shall be limited to verifying that there is on board a valid certificate,
unless there are clear grounds for believing that the condition of the ship or its equipment does
not correspond substantially with the particulars of that certificate,” in which case “the Party
carrying out the inspection shall take such steps as will ensure that the ship shall not sail until it
can proceed to sea without presenting an unreasonable threat of harm to the marine
environment”).
18
COTP Orders. A COTP Order is an important tool used when it is
necessary to control or restrict the vessel’s movement or operations for
safety or security reasons. Only the COTP may use such an order to
implement a variety of control actions, including controlling the vessel’s
movement as it enters or departs a port. The COTP may also use such
an order to expel a vessel from port. The COTP may initiate
enforcement action if a ship fails to comply with a COTP Order. A
COTP Order may be used in addition to or in lieu of revocation of a
vessel’s COC. Although, it is not a substitute for pursuing and
processing a detention and completing the associated notifications and
administrative requirements under the applicable provisions of SOLAS,
the ISPS Code, MARPOL, STCW, or the Load Line Convention.
Id. at 9, ¶ 8b(2).
Like the Marine Safety Manual, the Inspection Circular states that a COTP may
implement “a variety” of control actions, which are not limited to the examples provided.
See Puerto Rico Mar. Shipping Auth. v. ICC, 645 F.2d 1102, 1112 n.26 (D.C. Cir.1981) (“It is
hornbook law that the use of the word ‘including’ indicates that the specified list of carriers that
follows is illustrative, not exclusive.”) Though plaintiffs correctly note that COTP controls are
to be “directed to specific situations and hazards,” Pls.’ Opp. & Cross-Mot. at 19, citing 33
C.F.R. §160.101, this same regulation authorizes COTPs to prohibit a ship from operating in
U.S. waters if the COTP “determines that the vessel’s history of accidents, pollution incidents, or
serious repair problems creates reason to believe that the vessel may be unsafe or pose a threat to
the marine environment.” 33 C.F.R. § 160.113. Accordingly, the Court holds that the agency’s
19
order does not violate its regulations and internal guidance on the enforcement of the ISM
Code. 13
D. The Coast Guard did not violate its policies and regulations regarding
Certificates of Compliance.
Plaintiffs also argue that the Coast Guard violated regulations promulgated to guide
“stakeholders through the process of reinstating or obtaining a Certificate of Compliance.” Pls.’
Reply at 12 n.18, citing 46 C.F.R. Part 153. This regulation is titled “Ships Carrying Bulk
Liquid, Liquefied Gas, or Compressed Gas Hazardous Materials.” 46 C.F.R. Part 153.
Subpart A of the regulation sets forth general provisions. Within it, Section § 153.15,
titled “Conditions under which the Coast Guard issues a Certificate of Inspection of Certificate
of Compliance,” provides that the Coast Guard will issue a certificate to a ship from a MARPOL
signatory country if:
13 Plaintiffs suggest that the order’s requirement for an ECP with a year of successful audits
violates the Inspection Circular. Pls.’ Opp. & Cross-Mot. at 19 n.33, quoting Inspection Circular
at 8–9 (“When working with Flag Administrations or RO’s to rectify ISM related
nonconformities, the COTP/OCMI can only recommend but not require an external audit.”)
(emphasis omitted). But the provision plaintiffs cite governs a Port State Control Officer’s
expanded examination of a ship’s Safety Management System. As discussed above, the
provision governing enforcement actions for non-conformities with the ISM Code authorizes
COTPs to issue “a variety of control actions” to address a ship’s non-conformance with the ISM
Code. Id. at 9, ¶ 8b(2).
Plaintiffs also note in their reply that the Marine Safety Manual allows the agency to
recommend, but not mandate, that foreign ships to undergo external third party audits. Pls.’
Reply at 11 n.17, citing U.S. Coast Guard Marine Safety Manual, COMDTINST M16000.7A,
Volume IV at 8–9 (available at http://www.uscg.mil/directives/cim/16000-16999/CIM_ 16000_
9.pdf). The cited document is titled “Engineering Systems” and concerns electrical and
mechanical systems as they relate to the marine safety program. Given the pagination of the
various sections of the document and no obvious provisions governing audits of foreign ships in
the document, it is not clear to the Court what portion of this document plaintiffs intend to rely
upon in making this argument, but new arguments set forth in a reply do not support a grant of
summary judgment in any event. See Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C.
Cir. 1992) (referring to the “rule against entertaining new arguments raised in reply briefs” as a
prudential doctrine applied by courts).
20
(1) The person wishing the Certificate of Compliance follows the
procedures under § 153.9;
(2) The ship has an IMO Certificate issued by its Administration and
endorsed with the name of the hazardous material or NLS if the ship’s
Administration is signatory to MARPOL 73/78;
(3) The ship meets the requirements of this part applying to United States
ships . . . ; and
(4) The ship meets any additional design and equipment requirements
specified by the Commandant (CG–ENG).
46 C.F.R. § 153.15(b). Section 153.9, referenced above, sets forth the procedures for applying
for a COC and lists the documents a foreign flag vessel from a MARPOL signatory country –
like the Wilmina – must present to apply for a COC and indicates where the application must be
sent. See 46 C.F.R. 153.9(a). So Subpart A explains the documents required to obtain a COC
and where the documents must be submitted.
Subparts B–D of the regulation set forth the procedural and technical requirements that a
ship must be satisfy in order to obtain a COC to carry hazardous liquid cargo. See id. §§
153.190–153.812 (design and equipment requirements); id. §§ 153.900–153.1504 (operations);
and id. §§ 153.1600–153.1608 (test and calculation procedures). Section 153.808, titled
“Examination required for a Certificate of Compliance,” provides that before a vessel receives an
initial or a reissued Certificate of Compliance, the vessel must call at a U.S. port for an
examination in which the Coast Guard determines whether or not the vessel meets the
requirements of this chapter. 46 C.F.R. § 153.808. And 153.809, titled “Procedures for having
the Coast Guard examine a vessel for a Certificate of Compliance,” details when and to whom
the ship’s owner must request the examination, § 153.809(a), and what plans the ship must have
available to the Marine Inspector during the exam, including a general arrangement (including
the location of fire fighting, safety, and lifesaving gear), a capacity plan, a schematic diagram of
21
cargo piping on deck and in tanks, and a schematic diagram of cargo tank vent piping.
§ 153.809(b). So these sections explain the technical requirements necessary to obtain a
Certificate of Compliance and further detail the documentation a ship must have available during
a COC examination.
But the regulations do not detail the steps to be followed to have a COC reinstated after
the vessel has been found to have violated MARPOL or APPS. 14 A ship that has a COC must
continue to comply with the COC’s requirements to maintain it. See Certificate of Compliance
at 2, AR 5–6 (stating the Wilmina must meet “all applicable U.S. and international marine safety
and environmental protection laws”). If a COC is suspended or revoked because “the vessel
does not comply with the conditions under which the certificate was issued,” 46 U.S.C.
§ 3711(a), the PWSA authorizes the Coast Guard determine in its discretion when the ship may
return:
if the owner or operator of such vessel proves, to the satisfaction of the
Secretary, that such vessel is no longer unsafe or a threat to the marine
environment, and is no longer in violation of any applicable law, treaty,
regulation or condition, as appropriate.
33 U.S.C. § 1228(b).
The regulation implementing this statute specifies that the COPT may authorize reentry
“if the owner or operator proves, to the satisfaction of the District Commander or Captain of the
Port that has jurisdiction, that the vessel is no longer unsafe or a threat to the environment, and
that the condition which gave rise to the prohibition no longer exists.” 33 C.F.R. § 160.113(d).
And the technical and procedural requirements that plaintiffs rely upon in 46 C.F.R. Part 153 do
14 Section 153.902 provides that a ship’s Certificate of Compliance shows its expiration
date and the endorsement on a COC is invalid if the vessel does not have a valid IMO Certificate
of Fitness, and the endorsement becomes valid again once the ship has the IMO Certificate of
Fitness revalidated or reissued. 46 C.F.R. § 153.902. The note to this regulation refers to
Section 153.809 for procedures for having a COC reissued. See 46 C.F.R. § 153.902 note.
22
not limit the agency’s authority under the PWSA or its implementing regulations – which leave it
to the District Commander or COTP to determine when a vessel no longer poses a risk to the
environment and the remedy necessary to address the issue. Accordingly, the Court holds that
the agency’s order does not violate 46 C.F.R. Part 153.
E. The fact that the Coast Guard has not issued an order like the one against
the Wilmina does not make it arbitrary and capricious.
Finally, plaintiffs assert the fact that the agency has never before issued an order like the
one against the Wilmina – despite having detained 1,200 vessels from 2000 to 2012 – supports
their argument that the order was arbitrary and capricious. Pls.’ Opp. & Cross-Mot. at 20–21.
They argue the order reflects a “dramatic departure from customary agency practice and
precedent,” which required the Coast Guard to provide a specific legal and factual basis for its
actions. Pls.’ Reply at 10, citing New York Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d
1177, 1183 (D.C. Cir. 2004). They contend the agency failed to provide the legal and factual
basis for its actions. Id., citing AR 1–2, AR 188–190, AR 432–435, AR 487, AR 496–508.
Plaintiffs cite precedent that holds that an agency may not reverse course in the face of
existing precedent without providing a reasoned analysis. New York Cross Harbor R.R., 374
F.3d at 1181 (holding that an “agency acts arbitrarily and capriciously if it reverses its position in
the face of a precedent it has not persuasively distinguished”) (internal citations omitted). But
this case does not involve the unexplained abandonment of an established policy position, even if
the agency’s action was unprecedented. See Pls.’ Reply at 9 and 11 n.14 (characterizing the
order as “unprecedented”); Tr. at 7–8 (expressing defendants’ position that the order reflected the
development of new policy: “[W]e perceive this to be a situation where the agency has to
develop a policy in order to implement the statute. . . . The Coast Guard, the United States, take
23
the position that the agency has the ability, indeed has to develop a policy that balances the needs
of shipping with the need to protect the environment. And that’s exactly what it’s doing here.”).
An “agency may not ‘depart from a prior policy sub silentio or simply disregard rules that
are still on the books,’” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1235, quoting
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514–16 (2009), but when an agency changes
policy, it “need not demonstrate to a court’s satisfaction that the reasons for
the new policy are better than the reasons for the old one.” Id. (emphasis in original). It is
enough that new policy is “permissible under the statute, that there are good reasons for it, and
that the agency believes it to be better.” Id. (emphasis in original). Thus, the order against the
Wilmina is not arbitrary and capricious merely because the agency has not issued one like it
before. The question is whether the order is permissible under the statute, whether there are
good reasons for it, and whether the agency reasonably finds the new approach to be superior.
The Court has already ruled that the part of the order imposing an ECP with audits is
permissible under the applicable statutes. Wilmina, 934 F. Supp. 2. at 9–10 (holding that Chapter
37 of Title 46 gives the Coast Guard “broad authority to issue and revoke certificates of
compliance . . . based on its assessment of whether the vessels are in compliance with
environmental requirements” and mandates the agency to revoke a certificate when it determines
a vessel is out of compliance). So the relevant question is “whether there are good reasons” for
the order, and that inquiry brings the Court back to the fundamental question raised by the
motion for summary judgment.
24
III. The Coast Guard’s Order is Reasonable and Supported by the Record.
Plaintiffs challenge the merits of the Coast Guard’s order on two broad grounds: they
contend that the whistleblower was untrustworthy, and that the evidence does not support the
agency’s findings. Pls.’ Opp. & Cross-Mot. at 22–27. The Court will uphold the order.
A. The whistleblower’s credibility and honesty were not the basis for the agency
action.
Plaintiffs submit that Pabillar, whose call initiated the expanded inspection of the ship,
was untrustworthy and unreliable, and that his credibility undermines the agency’s investigation
and order. Pls.’ Opp. & Cross-Mot. at 25. They assert that Pabillar had a motive to fabricate the
violations he reported because he was fired shortly before he blew the whistle. Id. at 22–25.
Plaintiffs also contend that Pabillar was not knowledgeable about shipping and was that he was
otherwise untrustworthy, since he was relieved of duty for poor performance, he and Cruz were
wrong about where the ship was located when they made the video they gave to the Coast Guard,
and Pabillar was found to be in possession of child pornography. Id. at 24–27. But whether
Pabillar is incompetent, untrustworthy, or even immoral does not bear on the validity of the
Coast Guard’s order because the order was based on its agents’ independent investigation, not
merely on the report that prompted the investigation.
Plaintiffs complain that Pabillar and Cruz told the Coast Guard the events in the video
took place on April 24, 2010 but investigators “change[d] the date” to April 29, 2010, and they
conclude that this proves the investigation was “biased, partial and faulty.” Id. at 24, citing
Enforcement Summary, AR 27–31.
The Enforcement Summary states:
2 crewmembers came forward and admitted to participating or witnessing
the discharge. They said that it occurred in the Atlantic Ocean, near
Bermuda Island, sometime around the 24APR10(CG-06). It was
25
determined by the vessel[’]s bridge log(CG-02) that the discharge most
likely occurred on 29ARP10, based upon the position of the vessel in the
Atlantic ocean and compared to the interview with the informants.
Enforcement Summary, AR 27–31. This description indicates that the date and location
provided by Pabillar and Cruz were estimates, as did the notes of one of the Coast Guard
investigators. See Eckard Statement, AR 15–16 (Cesar Cruz said the video was taken “on or
about April 24th, 2010” and that the vessel was located somewhere “around Bermuda Island”).
So, there is no inconsistency here. Moreover, the summary does not show that the agency
changed the date to “make certain that the made up date would comport with the false story
given by Pabillar and Cruz,” as plaintiffs argue. Pls.’ Opp. & Cross-Mot. at 24. Rather, it shows
the agency was doing its best to pinpoint the date and location based on all the information it
had. In any event, whether the video was taken on the 24th or the 29th near Bermuda or
elsewhere does not undermine the conclusion that the video was taken a few weeks before the
ship arrived in Corpus Christi, Texas.
Plaintiffs also argue that Pabillar “mocked up” the video, id. at 22–23 (citing AR 685 and
441), suggesting that he staged the violation. But the parts of the record plaintiffs cite for this
argument do not to support that conclusion. First, the document at AR 441 is merely a letter
from plaintiffs’ counsel stating plaintiffs’ position that the video was a fabrication. This does not
constitute evidence. Second, Coast Guard Lieutenant Toepfer’s notes of his interview with Cruz
simply indicate that Pabillar “convinced [Cruz] to take video.” AR 685. Pabillar’s role in
initiating the creation of the video does not demonstrate that what the video depicted as
manufactured. Indeed, while plaintiffs make much of Pabillar’s motive and lack of credibility,
they cite no evidence to suggest that Cruz – who had worked on the ship for fourteen months,
was a current crew member in good standing, and informed investigators that he witnessed the
26
improper use of the bypass hose to dispose of oily waste, AR 684 – had any motive to lie to the
inspectors at all.
B. The record shows the agency action was reasonable.
Finally, plaintiffs challenge the Coast Guard’s order as unreasonable based on the
evidence in the administrative record. An agency’s decision is presumed to be valid, see Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 415, and a court must not “substitute its
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. at 43.
Where an agency’s determination “requires a high level of technical expertise, [a court] must defer to
the informed discretion of the responsible federal agencies.” Marsh v. Or. Natural Res. Council, 490
U.S. 360, 377 (1989), quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (internal quotation
marks omitted). The deference accorded to an agency is not unlimited, however: “the
presumption of agency expertise may be rebutted if its decisions are not reasoned.” Canales v.
Paulson, Civ. 06-1330-GK, 2007 WL 2071709, at *4 (D.D.C. July 16, 2007), citing ALLTEL
Corp. v. F.C.C., 838 F.2d 551, 562 (D.C. Cir. 1988).
1. The Coast Guard’s Findings
The Coast Guard determined that the Wilmina had (1) “discharged oily contaminated
bilge waste and/or sludge in contravention of MARPOL on several occasions,” (2) “entered the
United States port of Corpus Christi, Texas with a[n] oil record book with false entries,” and that
(3) “the ship’s Master and Chief Engineer were unfamiliar with and failed to comply with the
Safely Management System (SMS) for the vessel with regard to reporting critical equipment
casualties and maintaining records and engine room alarms.” AR 1.
Its conclusion that the ship had illegally discharged bilge waste was based on a number of
findings:
27
• Two crew members told investigators that they participated or witnessed improper
discharges. Enforcement Summary, AR 27–32; AR 684.
• The ship’s incinerator was not working properly. Eckard Statement, AR 15–17.
• The discharge pipe, which was supposed to run between the oily water separator
through the ship’s hull, had been removed. Second Port State Control Report of
Inspection, AR 7–9.
• Parts of the oily water separator were in a chemical locker. Id.
• The oily water separator was clogged with sludge. See Defs.’ Mem. at 6, citing
Independent Technician Report, AR 174–75.
• The oil record book showed that sludge moved out of the tank instead of into the
tank. Id., citing Oil Record Book & Evidence Review, AR 171–73.
• Oil was found in the overboard discharge valve. AR 27.
• The printer used to record alarms to notify crew of problems with the ship’s
pollution control equipment was inoperable. Toepfer Statement, AR 22; Eckard
Statement, AR 15.
• The captain told Coast Guard personnel that no reports had been made to the
company responsible for the ship about the broken oil water separator or
incinerator. Toepfer Statement, AR 24.
As a result of the findings about the ship’s pollution control equipment, the Coast Guard made
the additional findings about its oil record book and the Master and Chief Engineer’s failure to
comply with the vessel’s Safety Management System. AR 1.
2. Plaintiffs’ Arguments
Plaintiffs attack the evidence underlying the Coast Guard’s findings on multiple grounds.
a) The laboratory reports
Plaintiffs contend that oil samples taken from the ship demonstrate that the Wilmina did
not discharge oily waste into the ocean. They contend the Coast Guard’s own laboratory
analysis shows that oil from the ship’s discharge pipe, stem, and skin valve did not match oil
28
from the bilge tanks and incinerator, indicating that Pabillar intentionally contaminated the
overboard discharge pipe to create the environmental violation he reported to the agency. Pls.’
Opp. & Cross-Mot. at 27–28.
The laboratory report states that samples from the overboard discharge pipeline, stem,
pipe section, and skin plate (samples 4, 6, 7, and 8) have similar characteristics to the overboard
discharge sample (sample 1). AR 181, 184 (reporting that there were “sufficient important
similarities to indicate” these samples “are all related to each other through a common source of
petroleum oil. However, a few small differences preclude a conclusive match”). The report also
states that samples from the overboard discharge pipeline, stem, pipe section, and skin plate
(samples 4, 6, 7, and 8) had different characteristics from the samples taken from the bilge tanks
and incinerator (samples 2, 3, and 5). AR 182.
Defendants explain that oil samples may not match because as a vessel continues to
operate, “bilge tanks gradually refill with waste that differs chemically from that which was
previously discharged, changing the petroleum ‘fingerprint.’” Defs.’ Reply at 20.
Understanding the importance of the laboratory report to the agency’s investigation
requires a high level of technical expertise – not only about the chemical composition of the
waste that oceangoing vessels produce but also about these vessels’ mechanical systems and how
they operate generally. Recognizing this, the Court is mindful that when an agency’s
determination “requires a high level of technical expertise,” it must “defer to the informed
discretion” of the responsible federal agency. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377
(1989) (internal citations omitted). Here, the laboratory analysis states that the characteristics of the
oil from the overboard mechanisms (samples 1, 4, 6, 7, and 8) were different from the
characteristics of samples taken from the bilge tanks and incinerator (sample 2, 3, and 5). AR
29
182. The importance of this analysis, given how the petroleum “fingerprint” of a ship’s waste
can change and in light of the other evidence collected by the agency, is properly left to the
discretion of the responsible agency, and the Court cannot find that this circumstance alone
undermines the agency’s stated reasons for issuing the order, given the record as a whole. The
record indicates witness statements and other findings concerning the state of the pollution
control equipment that corroborated Pabillar’s account.
b) The initial Port State Control inspection
Plaintiffs cite the Coast Guard’s first Port State Control inspection report of May 4, 2010
to argue that the ship’s pollution control equipment had in fact been functioning properly all
along. Pls.’ Opp. & Cross-Mot. at 28–31 (contending the incinerator and oily water separator
were working), citing the Coast Guard’s Foreign Tank Vessel Examination Book, AR 373–426
and the first Port State Control report, AR 3–4. But the first inspection was a cursory one: the
Port State Control inspection is “a walk through examination and visual assessment of a vessel’s
relevant components, certificates and documents . . . accompanied by limited testing of systems
and the crew.” Marine Safety Manual, Vol. II (Material Inspection), Procedures Applicable to
Exercising Control Over Foreign Vessels Under U.S. Jurisdiction, Section D, Ch. 2 at D1-7.
When an inspection “reveals questionable equipment, systems, or crew incompetence, the
boarding team may expand the examination to conduct such operational tests or examinations as
deemed appropriate.” Id. So the fact that the first Port State Control report for the Wilmina did
not identify a problem with the incinerator or the oily water separator does not preclude a
finding, after a more thorough examination, that they were not working.
Indeed, at the second, expanded inspection of May 4, 2010, multiple crew members told
Coast Guard personnel that the incinerator had been broken for two months before arriving in
30
Corpus Christi. See Notes of Toepfer, AR 684; Toepfer Statement, AR 22 (“The Second
Engineer stated they had been having problems with the incinerator and it had not always
worked properly.”); Eckard Statement, AR 15 (“We asked the Chief Engineer if the Incinerator
was working and he stated that he did not think it had been working.”); AR 15–16 (noting that
Pabillar also “stated that the incinerator had not been working until it was fixed prior to arriving
to the U.S.”). Plaintiffs do not argue that these crew members had any motive to lie, and the
Court can credit these statements. Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 81
(D.D.C. 2011) (“[A]bsent clear error, ‘an agency’s credibility decision normally enjoys almost
overwhelming deference.’”), quoting Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C. Cir.
2002); D.C. Transit Sys., Inc. v. Washington Metro. Area Transit Comm’n, 466 F.2d 394, 414
(D.C. Cir. 1972) (“Credibility determinations within the agency’s sphere of expertise are
peculiarly within its province, and courts will upset them only if made irrationally.”); see also
Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (“Credibility determinations are peculiarly
the province of the finder of fact, and we will not upset such determinations when supported by
substantial evidence.”) (citation omitted); NLRB v. McCullough Envtl. Serv., Inc., 5 F.3d 923,
928 (5th Cir. 1993) (“When findings of fact rest upon credibility determinations, we defer to the
NLRB’s findings and will overturn them only in rare circumstances.”); DeSarno v. Dep’t of
Commerce, 761 F.2d 657, 661 (Fed. Cir. 1985) (“[T]his Court cannot substitute a contrary
credibility determination based on a cold paper record.”). Also, the inspectors found oily rags
around the incinerator, which indicated that the incinerator was not operating. Defs.’ Reply at
13, citing AR 15.
Plaintiffs also complain about the agency’s handling of the ship’s oil content meter,
stating that inspectors had crew members remove the meter to search its memory even though
31
they were told the device had no internal memory. They also state that the meter did not work
when it was reinstalled because a crew member not trained on the device was asked to reinstall
it. Pls.’ Opp. & Cross-Mot. at 30–31. But plaintiffs fail to demonstrate why these actions – even
if they were flawed – undermine the Coast Guard’s conclusions. The agency found a series of
other irregularities involving the oil content meter: its connections were corroded, and the
printer used to record alarms that notify crew when the meter was not working had generated no
alarm printouts since September 2009. Defs.’ Mem. at 5, citing AR 22. Further, the agency
found that the ship’s crew was unfamiliar with the vessel’s Safety Management System
requirements for reporting equipment failures, like the broken printer. Defs.’ Mem. at 6–7,
citing Second Port State Control report, AR 8. See also Toepfer Statement, AR 24. Plaintiffs
say nothing to rebut or explain these deficiencies.
c) The oil record book
Plaintiffs next point to the fact that there were regular entries in the oil record book from
March 1 through April 30, 2010 that showed the incinerator was operating. Pls.’ Opp. & Cross-
Mot. at 29 (stating the incinerator was used forty-two times to dispose of sludge and oily water),
citing the Oil Record Book, AR 107–137. But these entries do not comport with the statements
of the Chief Engineer, the Second Engineer, and motorman Cruz, who each reported that the
incinerator had not been working. Toepfer Notes, AR 684; Toepfer Statement, AR 22; Eckard
Statement, AR 15–16. And even if the incinerator had been working, the record indicates it did
not reach the temperature needed to burn sludge. AR 16 (reporting statement of Pabillar that the
incinerator “would run but that they could not get it hot enough to burn sludge”).
Nor do the entries undermine the agency’s analysis of other entries in the oil record book.
The Coast Guard’s review of the oil record book explains that “[n]ormally the sludge tank is the
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final resting ground for oily waste/sludge” and there is “no further processing” of this waste
other than incinerating it or discharging it ashore. AR 171. But the oil record book indicated
that oily waste moved in the opposite direction, from the sludge tank to the bilge settling tanks,
prompting the agency to ask: “Why are transfers from the sludge tank to the sludge/bilge settling
tank which is subsequently transferred to the bilge tank taking place?” AR 171. The agency
concluded that sludge was pumped backwards through the system then discharged overboard,
because the oil record book did not otherwise account for its disappearance. Defs.’ Mem. at 6.
So the fact that there were some regular entries in the oil record book stating that the ship
incinerated sludge on some occasions does not prove that the incinerator worked properly at all
times, or that oily waste was not improperly disposed overboard, given the statements of crew
members and other entries in the oil record book. Again, mindful that the type of technical
analysis required to understand the evidence amassed by the agency requires the Court to
exercise deference, the Court cannot find that the agency’s conclusion are not reasoned based on
the record before it.
d) Prior inspections of the Wilmina
Finally, plaintiffs point to numerous prior inspections of the Wilmina to show that the
ship was in compliance with all applicable environmental requirements when the agency issued
its order. Pls.’ Opp. & Cross-Mot. at 31–35. They cite a Coast Guard Port State Control
inspection from November 27, 2009 that found the ship “in excellent condition and crew well
trained.” Id. at 31–32, citing AR 239. They also rely on the May 4, 2010 initial Port State
Control inspection. Id. They further state that the vessel’s classification society, DNV, had
regularly examined the ship and found it in compliance with the vessel’s Safety Management
System, id. at 33, and that in August 2009, the ship underwent a comprehensive internal ISM
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audit by the vessel’s operator and was in compliance with all applicable safety, security and
environmental compliance practices. AR 236–238. Finally, plaintiffs point out that they
conducted self-assessment inspections of the ship, which were supplemented by numerous third-
party vetting inspections. Pls.’ Opp. & Cross-Mot. at 34.
But even if the ship did pass these previous inspections, the Coast Guard’s order was not
based on the ship’s prior inspection history: it was based on the May 4, 2010 inspections.
Indeed, the agency recognized that the ship had no prior violations. Enforcement Summary, AR
31 (stating “no prior similar violations were found”). Accordingly, the Court finds that these
multiple prior inspections do not undermine the agency’s findings given the record before the
Court.
While the “presumption of agency expertise may be rebutted if its decisions, even though
based on scientific expertise, are not reasoned,” Defenders of Wildlife v. Babbitt, 958 F. Supp. 670,
679 (D.D.C. 1997), citing ALLTEL Corp. v. FCC, 838 F.2d 551, 562 (D.C. Cir. 1988), the Court
cannot find based on the record before it and the deference due to the agency that the Coast Guard’s
order was arbitrary and capricious.
CONCLUSION
For the reasons set forth above, the Court will grant defendants’ motion for summary
judgment and will deny plaintiffs’ motion for summary judgment. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: December 2, 2014
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