Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.
Issue link: https://uscgproceedings.epubxp.com/i/284910
11 Spring 2014 Proceedings www.uscg.mil/proceedings compliance without a hearing deprived the owners of due process. Additionally, the company argued that the Coast Guard lacked the statutory authority under the PWSA to issue the orders banning the vessel, requiring the environ- mental compliance plan as a condition for entry and that the Coast Guard lacked the factual basis to revoke the COC and bar entry. 2 The Case The District Court compared 33 U.S.C.§1228 to Chapter 37 of Title 46, which sets specifc provisions under which the Coast Guard may allocate or revoke a COC. Accordingly, the court determined that barring a vessel's re-entry must be combined with articulating a path towards compliance. 3 The plaintiffs argued the Coast Guard's authority under PWSA only extends to emergency situations and that a ban based upon alleged violations exceeds its power. Pointing to larger disasters that prompted the legislation's passage, they suggested the legislation was intended primarily to address major issues. However, the legislative history as well as the text itself repeatedly referred to marine protection broadly and never attempted to limit the scope of Coast Guard authority. The legislative history also referred repeatedly to the dangers posed by oil tank vessels, directly identifying them as a focus for regulatory action. 4 Additionally, plaintiffs argued that the ban violated their due process. The court confrmed that the plaintiffs have a protected property interest in the COC since it was issued prior to the revocation; however, the property interest only required notice and hearing appropriate to the nature of the case. 5 The court determined the administrative appeals satisfed due process since they provided an opportunity for reconsideration of the order. The Decision The District Court found that the Corpus Christi COTP relied upon authority under 33 U.S.C.§1228 of the PWSA, which mandates vessels be barred from operating in the navigable waters of the United States when discharging waste in violation of federal law or international treaty or when a history of pollution created a reasonable threat. 6 Thus the court determined it was within the Coast Guard's authority to revoke a COC in the manner performed; how- ever, conditions for reinstatement must be directed at bring- ing a vessel into compliance and not simply setting a term of years. Therefore, the requirement to successfully complete an audit for at least a year remained in place, while the alter- native barring for three years was struck down. The court articulated its decision as a balance between the two parties, stating that the authority of the Coast Guard was neither as broad as the defendants posited nor as narrow as the plaintiffs argued. 7 However, rejecting the Coast Guard's alternative option of a three-year ban, the court left unclear whether it cancelled the administrative order or extended the ban indefnitely, until proof of compli- ance. This question was still being challenged in the court at the time of publication. The Implications The court's decision to uphold the Coast Guard's action offers the Coast Guard the choice between pursuing resource-heavy criminal proceedings or simply barring a tank vessel from entry, with conditions for reinstatement, if it violates U.S. laws or regulations. This poses signifcant resource advantages to the Coast Guard. By barring the vessel, complications such as paroling the crew, requiring surety, or physically holding a vessel can be avoided, while still achieving some level of compliance. Additionally, the court's decision allows the burden to be placed on the operator of the vessel to prove they are no longer a threat, rather than requiring the repeated effort An oily water separator onboard a motor vessel in the Port of Los Angeles. (Not the vessel in question.) U.S. Coast Guard photo by Petty Offcer Prentice Danner. Spring2014_FINAL.indd 11 3/21/14 11:13 AM