                           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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