Bypassing Pollution Control Devices Costly For Shipowner Following Coast Guard Sanctions

In 2010, the U.S. Coast Guard inspected a Norwegian-flagged oceangoing tank vessel while it was docked in Corpus Christi, Texas.  Based on inspections, witness statements, and evidence collected from the vessel, the U.S. Coast Guard concluded that the ship’s pollution control devices were inoperable or had been disarmed and that the ship failed to comply with her own Safety Management System.  The agency issued an order revoking the ship’s Certificate of Compliance and ordered that the ship not re-enter U.S. waters for three years, or until after the ship’s owners developed and implemented an acceptable Environmental Compliance Plan (“ECP”) and had passed one year of satisfactory audits.  The ship’s owners sued, contending that the Coast Guard did not have statutory authority for such sanctions.  Last year, the U.S. District Court for the District of Columbia concluded that the Coast Guard had statutory authority to order the owners to develop and implement an ECP acceptable to the Coast Guard and to require one year of satisfactory audits before permitting the ship to re-enter U.S. waters, but that the agency lacked the authority to simply ban the ship from U.S. waters for three years.

Earlier this week, the same court granted summary judgment to the United States, rejecting the owners’ remaining arguments.  Specifically, the court rejected the following arguments made by the ship’s owners: 1) because the court struck down part of the sanctions as exceeding the agency’s statutory authority, the entire order was invalid because it was not severable; 2) the agency violated its own policies and procedures in issuing the order; and 3) the ECP was not permissible without a criminal conviction given that it imposed a de facto sentence of probationary oversight.