United States v. M/V Sanctuary , 540 F.3d 295 ( 2008 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Party in Interest-Appellee,
and
MARYLAND PORT ADMINISTRATION;
STATE OF MARYLAND CENTRAL
COLLECTION UNIT,
Plaintiffs,
v.
M/V SANCTUARY, her engines, tackle  No. 07-2123
equipment, boilers, furniture, and all
other necessaries thereunto
appertaining and belonging, in rem;
POTOMAC NAVIGATION, INCORPORATED;
PROJECT LIFE, INCORPORATED,
Defendants-Appellants,
and
JOHN CHAMBERLAIN,
Claimant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(1:07-cv-00602)
Argued: May 13, 2008
Decided: August 25, 2008
Before MICHAEL and DUNCAN, Circuit Judges,
and Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.
2 UNITED STATES v. M/V SANCTUARY
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Duncan and Senior Judge Kiser joined.
COUNSEL
ARGUED: Lawrence Jay Kahn, FREEHILL, HOGAN & MAHAR,
New York, New York, for Appellants. Ryan Douglas Nelson,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Alexander M. Giles, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Appellants. Ronald
J. Tenpas, Assistant Attorney General, Environment & Natural
Resources Division, Michael T. Gray, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.
OPINION
MICHAEL, Circuit Judge:
The main issue in this appeal is whether the Environmental Protec-
tion Agency (EPA) may obtain an administrative warrant to carry out
its authority under the Toxic Substances Control Act (TSCA), 15
U.S.C. § 2601 et seq., to inspect places containing regulated chemical
substances. We hold that EPA has such authority, and we therefore
affirm the district court’s issuance of a warrant authorizing the agency
to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs).
We also affirm the district court’s preliminary injunction order pre-
venting the Sanctuary’s owner, Potomac Navigation, Inc., from mov-
ing the ship from the pier in Baltimore where it is docked.
I.
A.
The health and environmental risks associated with PCBs are
undisputed. EPA has determined that PCBs are "toxic and persistent,"
may be oncogenic, and "may cause reproductive effects and develop-
mental toxicity in humans." Disposal of Polychlorinated Biphenyls
UNITED STATES v. M/V SANCTUARY 3
(PCBs), Part IV, 63 Fed. Reg. 35,385 (June 29, 1998). Since 1979
TSCA has banned the manufacture, processing, distribution in com-
merce, or use of PCBs, except "in a totally enclosed manner." 15
U.S.C. § 2605(e)(2)(A)-(B). ("‘[T]otally enclosed manner’ means any
manner which will ensure that any exposure of human beings or the
environment to a [PCB] will be insignificant as determined by the
[EPA] Administrator by rule." Id. § 2605(e)(2)(C)). PCBs may not be
exported for distribution in commerce without an exemption. 15
U.S.C. §§ 2605(e)(2)(A), 2611(a)(2); 40 C.F.R. § 761.20(c). In addi-
tion, TSCA regulations prohibit the export, for purposes of disposal,
of PCBs in concentrations of fifty parts per million (ppm) or greater
without an exemption. 40 C.F.R. § 761.97(a).
TSCA provides EPA with inspection authority. Specifically, "[f]or
purposes of administering [TSCA]," EPA "may inspect any establish-
ment, facility, or other premises in which" substances regulated by the
Act "are manufactured, processed, stored, or held before or after their
distribution in commerce." 15 U.S.C. § 2610(a). In addition, this
inspection authority reaches "any conveyance being used to transport"
a regulated substance "in connection with distribution in commerce."
Id. EPA’s inspection powers "extend to all things within the premises
or conveyance inspected" that "bear[ ] on whether the requirements of
[TSCA]" have been met with respect to regulated substances "within
such premises or conveyance." Id. § 2610(b).
B.
The Sanctuary, built in 1944, was once a U.S. Navy hospital ship.
The ship was stricken from the Naval Vessel Reports in 1989, and the
government sold the ship later that year to Project Life, Inc. (formerly
Life International) for $10, with the stipulation that the ship would be
used to provide humanitarian services. Project Life docked the Sanc-
tuary at a Maryland Port Authority (MPA) pier in Baltimore, with the
announced purpose of converting the ship into a facility for women
suffering from addiction. The conversion was never accomplished,
and Project Life failed to pay MPA dockage and related charges that
became due.
On March 9, 2007, in an effort to recover the unpaid charges, the
MPA sued the Sanctuary and Project Life in the District of Maryland.
4 UNITED STATES v. M/V SANCTUARY
A warrant for the arrest of the ship was issued and executed. After a
default judgment was entered against the Sanctuary and Project Life,
Potomac bought the ship for $50,000 at a court-ordered public auc-
tion. The October 4, 2007, order confirming the sale gave Potomac
sixty days to tow the ship away from Baltimore, and Potomac advised
the court that the ship would be moved to Piraeus, Greece, or another
location for refurbishment, "most likely as a storage unit, a hotel plat-
form, or other similar use." J.A. 760. On October 30, 2007, shortly
before the Sanctuary’s planned towage, the Basel Action Network
(BAN), an environmental watchdog group, e-mailed Kelly L. Bunker,
PCB Coordinator for EPA’s Region III, which includes Baltimore.
According to its e-mail, BAN believed that the Sanctuary contained
PCBs and would likely be towed to another location and dismantled
in violation of TSCA’s ban on the export of PCBs.
BAN’s e-mail prompted Bunker to research the Sanctuary’s history
to assess whether it was likely to contain PCBs. Bunker learned from
EPA technical guidance documents that PCBs are most likely to be
present in ships built before the 1979 PCB ban. She learned from a
2001 RAND Corporation report that PCBs were present "in many
plastics, rubbers, adhesives, gaskets, and other commercial nonmetal
products used in Navy ships" and that testing of retired ships indi-
cated that "up to 98% of all the Navy ships awaiting disposal may
contain regulated amounts of PCBs in solid materials." J.A. 487, 517-
18. The Sanctuary’s potential for containing PCBs was also assessed
by Laura A. Casey, a chemist employed in EPA’s Office of Solid
Waste, Hazardous Waste Identification Division, International and
Transportation Branch, who had over nine years’ experience dealing
with PCBs in connection with the disposal of ships. Casey reviewed
data regarding the presence of PCBs on numerous non-combatant
ships similar to the Sanctuary, built between the 1940s and 1970s.
She compiled a list of items and materials on these ships that have
been found to contain PCBs, including electrical cable, rubber and felt
gaskets, insulation material, paints, caulking, and numerous rubber
applications. Casey concluded that the Sanctuary likely contained
materials with PCBs, which are regulated under TSCA.
After Bunker and Casey completed their analyses, EPA learned
that PCBs were in fact present on the Sanctuary. This information
came from Kevin J. McCabe, managing member of a ship recycling
UNITED STATES v. M/V SANCTUARY 5
firm that considered bidding for the Sanctuary. McCabe reported that
four out of the five paint samples his company took from the Sanctu-
ary tested positive for PCBs in concentrations well over fifty ppm.
EPA also obtained information from Polly Parks, a ship recycling
consultant, who was familiar with deceptive practices occurring in
connection with the disposal of PCB-laden ships built in the same era
as the Sanctuary. According to Parks, the buyer of such a ship often
claims that it will be repaired and refurbished; instead the ship is
towed to a third world country where it is dismantled and sold at a
huge profit on the scrap metal market.
In early November 2007, pursuant to its authority under TSCA,
EPA requested permission from Potomac to inspect the Sanctuary for
materials containing PCBs. Potomac denied EPA’s request. Shortly
thereafter, EPA (1) applied to the district court for an administrative
warrant authorizing the inspection, and (2) moved for a preliminary
injunction to prohibit Potomac from moving the Sanctuary from the
Baltimore pier until EPA could complete the inspection and deter-
mine whether enforcement action was necessary. EPA’s application
and motion were supported in part by the information in the preceding
two paragraphs, which was submitted in the declarations of Bunker,
Casey, McCabe, and Parks. The district court issued the warrant for
the inspection of the Sanctuary and granted the preliminary injunc-
tion. The court also denied Potomac’s request for a Franks hearing on
the integrity of the declarations supporting the warrant.
Potomac appeals, contending that the district court erred in (1) con-
cluding that EPA has warrant authority under TSCA, (2) finding
probable cause to support issuance of the administrative warrant, (3)
concluding that the Sanctuary was a proper location for inspection
under TSCA, (4) denying Potomac’s request for a Franks hearing,
and (5) granting the preliminary injunction that enjoined the towage
of the Sanctuary from Baltimore.
II.
Potomac argues that EPA lacks warrant authority because TSCA
does not specifically confer it. We review this legal issue de novo,
United States v. Deaton, 332 F.3d 698, 703-04 (4th Cir. 2003), and
6 UNITED STATES v. M/V SANCTUARY
hold that EPA’s inspection authority under TSCA carries with it the
authority to obtain a warrant.
TSCA explicitly authorizes EPA to inspect a premises or convey-
ance where there are substances regulated by the Act. 15 U.S.C.
§ 2610(a). The scope of this inspection authority "extend[s] to all
things within the premises or conveyance" that "bear[ ] on whether
the requirements" of TSCA are met. Id. § 2610(b). "When Congress
invests an agency with enforcement and investigatory authority, it is
not necessary [for Congress] to identify explicitly each and every
technique that may be used in executing the statutory mission." Dow
Chemical Co. v. United States, 476 U.S. 227, 233 (1986). Instead,
"[r]egulatory or enforcement authority generally carries with it all the
modes of inquiry and investigation traditionally employed or useful
to execute the authority granted." Id.Accordingly, courts have consistently held that a federal regulatory
agency is authorized to apply for a warrant to execute a statutory
grant of inspection authority. Marshall v. Barlow’s, Inc., 436 U.S.
307, 325 & n.23 (1978) (holding warrantless inspections under the
Occupational Safety and Health Act unconstitutional, but concluding
that "there would be no occasion for enjoining the inspections autho-
rized" by the statute if the agency obtained a warrant satisfying the
Fourth Amendment); Blackie’s House of Beef, Inc. v. Castillo, 659
F.2d 1211, 1222 (D.C. Cir. 1981) (inferring "from the provisions of
the Immigration and Nationality Act some predicate power to obtain
search warrants in aid of the enforcement activities specifically delin-
eated in the statute, although the statute does not explicitly authorize
such warrants"); Bunker Hill Co. Lead & Zinc Smelter v. EPA, 658
F.2d 1280, 1285 (9th Cir. 1981) (holding that the Clean Air Act’s
grant of the power of entry for inspection provided "sufficient author-
ity to justify obtaining inspection warrants"); Midwest Growers Coop.
Corp. v. Kirkemo, 533 F.2d 455, 462 (9th Cir. 1976) (holding that
"non-consensual administrative searches may be accomplished
through warrants of inspection when the administrative agency is
granted by Congress the power of entry to make its inspections"); In
re Yoder’s Slaughterhouse Site, 519 F. Supp. 2d 574, 579 (D. Md.
2007) (holding that provisions of the Comprehensive Environmental
Response, Compensation, and Liability Act authorizing entry, inspec-
tion, and sampling imply warrant authority "as broad as necessary to
UNITED STATES v. M/V SANCTUARY 7
enable the EPA to enter and perform the statutory mission"); Boliden
Metech, Inc. v. United States, 695 F. Supp. 77, 80-82 (D.R.I. 1988)
(holding that warrant authority follows from TSCA’s grant of entry
and inspection authority).
Potomac argues that in TSCA Congress granted EPA subpoena
power "[i]n lieu of warrant authority." Appellants’ Br. 16. We dis-
agree. EPA’s authority to seek a warrant stems from its inspection
authority. The inspection authority and the subpoena power are sepa-
rate grants of authority governing separate subjects of investigation.
EPA’s inspection authority extends to the physical inspection of
premises or conveyances, 15 U.S.C. § 2610(a), while its subpoena
power extends to persons (or entities) who may be compelled to tes-
tify or to produce reports, documents, or other information, id.§ 2610(c). Nothing in Congress’s grant of subpoena power indicates
that it intended to preclude EPA from obtaining warrants to imple-
ment its inspection authority.
In sum, EPA may obtain administrative warrants to carry out its
inspection authority under TSCA.
III.
Potomac argues that even if EPA has warrant authority, the district
court erred in finding probable cause for the issuance of the warrant
to inspect the Sanctuary. On review we determine whether the district
court had a substantial basis for its probable cause determination,
United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006), and we
"should [pay] great deference" to that determination, Illinois v. Gates,
462 U.S. 213, 236 (1983) (citation and internal quotation marks omit-
ted).
Probable cause for an administrative warrant may be based on (1)
"specific evidence of an existing violation," or (2) "a showing that
reasonable legislative or administrative standards for conducting an
inspection are satisfied with respect to a particular establishment."
Marshall v. Barlow’s, Inc., 436 U.S. at 320 (citation, internal quota-
tion marks, and alterations omitted). The warrant here was based on
the legislative standard for inspection set forth in 15 U.S.C. § 2610.
We therefore reiterate the statutory standard and consider whether the
8 UNITED STATES v. M/V SANCTUARY
district court had a substantial basis for finding probable cause under
that standard.
Again, § 2610(a) authorizes EPA to inspect — "[f]or purposes of
administering [TSCA]" — places that include a premises where a reg-
ulated chemical substance, including PCBs, is held before or after its
distribution in commerce. Section 2610(b) extends EPA’s inspection
authority to all things in a premises that bear on whether TSCA’s
requirements have been met with respect to the regulated substance
present within the premises. Here, the district court had a substantial
basis for finding probable cause to issue a warrant under the legisla-
tive standard in § 2610. Specifically, there was a substantial basis to
find (1) that PCBs, regulated by TSCA, were held on the Sanctuary,
and (2) that EPA required access to the ship to conduct an inspection
for purposes of administering TSCA.
First, sampling data showed that PCBs were present in paint coat-
ings on the Sanctuary. Moreover, as EPA’s research revealed, it was
likely that PCBs were in, or exposed on the surfaces of, other compo-
nents, equipment, and materials on the ship. It was also likely that the
PCBs would be in, or on the surfaces of, items that were not being
maintained "in a totally enclosed manner." See 15 U.S.C.
§ 2605(e)(2)(A)-(C).
Second, based on the demonstrated likelihood of PCB presence on
the Sanctuary, EPA sought the warrant for purposes of administering
TSCA. The specific administrative purposes were set forth in the affi-
davit of EPA Region III PCB Coordinator, Kelly Bunker, submitted
in support of the warrant application. An inspection was necessary for
EPA to determine whether the Sanctuary was in compliance with
TSCA and regulations governing PCBs. For example, the inspection
would allow EPA to determine whether PCBs located on the Sanctu-
ary were being maintained or used "in a totally enclosed manner," as
required by TSCA. See id. § 2605(e)(2)(A), (C). An inspection was
also necessary to determine whether PCBs on the Sanctuary posed an
unreasonable risk to human health or the environment. This determi-
nation would, in turn, allow EPA to take action to abate any risk. For
example, EPA could decide to bring an enforcement action to prevent
the PCBs’ removal from the country and to require their proper dis-
posal. See 15 U.S.C. §§ 2606, 2616.
UNITED STATES v. M/V SANCTUARY 9
Potomac argues that there was not probable cause to justify the
warrant because its planned refurbishment of the Sanctuary abroad
would not constitute the "export [of] PCBs for distribution in com-
merce in violation of 15 U.S.C. §2611." Appellants’ Br. 19 (emphasis
added). Thus, according to Potomac, EPA did not seek the warrant for
purposes of administering TSCA. The issue with respect to exporta-
tion was immaterial to the determination of probable cause in this
case. The district court issued the warrant because there was probable
cause to believe that PCBs were present on the Sanctuary, rendering
it proper for EPA to conduct an inspection to determine whether
TSCA’s requirements were being met. EPA thus obtained the warrant
pursuant to its statutory authority to administer TSCA.
IV.
Potomac contends that the warrant was invalid because the Sanctu-
ary does not qualify as a place where an inspection is authorized by
TSCA. Specifically, according to Potomac, the Sanctuary is neither a
premises where PCBs are held "before or after their distribution in
commerce" nor a conveyance being used to transport PCBs "in con-
nection with distribution in commerce." See 15 U.S.C. § 2610(a).
Potomac argues that the Sanctuary does not qualify for inspection as
a premises because PCBs are not being held there before or after their
distribution in commerce. However, Potomac cannot credibly argue
that any PCBs in the coatings (paint, for example), components, or
materials in the Sanctuary were not distributed in commerce before
the ship was built. We therefore agree with EPA that the Sanctuary
is a premises that may be inspected under § 2610(a). Because the
Sanctuary qualifies for inspection as a premises, we will not consider
Potomac’s argument that the ship does not qualify for inspection as
a conveyance.
V.
Potomac argues that the district court erred in denying it a Franks
hearing. See Franks v. Delaware, 438 U.S. 154 (1978). To obtain a
Franks hearing on the integrity of an affidavit supporting a search
warrant, the movant must make "a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affi-
10 UNITED STATES v. M/V SANCTUARY
davit." Franks, 438 U.S. at 155-56 (emphasis added). The false state-
ment must, of course, be "necessary to the finding of probable cause."
Id. at 156. EPA represents that Potomac, in its reply brief in district
court, acknowledged that it "‘is unable at this time to point to any spe-
cific instances of untrue statements in the application’" for a warrant.
Appellee’s Br. 24. Potomac does not contest this representation.
Indeed, Potomac has not pointed to anything in the record that estab-
lishes that it made the substantial preliminary showing, required by
Franks, to the district court. We therefore conclude that the district
court did not err in denying a Franks hearing.
VI.
Potomac finally argues that the district court erred in granting a
preliminary injunction prohibiting the Sanctuary’s movement from
the pier in Baltimore. We review the decision to grant a preliminary
injunction for abuse of discretion, with factual determinations consid-
ered for clear error and legal conclusions considered de novo. Safety-
Kleen, Inc. v. Wyche, 274 F.3d 846, 859 (4th Cir. 2001). The district
court applied the familiar Blackwelder test in deciding to grant the
preliminary injunction. See Blackwelder Furniture Co. v. Seilig Mfg.
Co., 550 F.2d 189, 193-96 (4th Cir. 1977).
Potomac argues that the district court erred in finding that "the
potential threat to the public health by the exposure of PCB’s [sic] if
this injunction should be denied far outweighs the potential harm to
Potomac which is essentially an economic loss." J.A. 866; see Safety-
Kleen, 274 F.2d at 859 (noting that as part of the Blackwelder analysis
a court "balance[s] the likelihood of harm to the plaintiff [if a prelimi-
nary injunction is not granted] against the likelihood of harm to the
defendant [if the injunction is granted]"). Potomac does not challenge
the court’s determination that EPA’s interest as plaintiff "is indistin-
guishable from the public interest." J.A. 865.
The record amply supports the district court’s finding that the bal-
ance of harms weighs heavily in favor of EPA and the public health
interests it represents. EPA presented unchallenged information show-
ing that PCBs are stable (and therefore persistent), mobile, and toxic,
and may have adverse reproductive and developmental effects in
humans. The agency has determined that "any exposure of human
UNITED STATES v. M/V SANCTUARY 11
beings or the environment to PCBs . . . may be significant, depending
on such factors as the quantity of PCBs involved in the exposure." 40
C.F.R. § 761.20. EPA introduced (1) evidence of sampling data show-
ing the presence of PCBs in concentrations greater than fifty ppm in
paint applications on the Sanctuary, and (2) evidence of the likelihood
that PCBs were disbursed on various items and components through-
out the Sanctuary. In addition to this information, the district court
considered Potomac’s potential "economic loss with respect to its
venture in regard to the Sanctuary." J.A. 866.
Given the serious health and environmental consequences associ-
ated with PCBs, the district court did not clearly err in finding that
the balance of harms tipped sharply in favor of EPA (and the public
interest). In short, the district court did not abuse its discretion in
granting a preliminary injunction (of limited duration) that prevented
the Sanctuary from being moved from the United States while EPA
executed its inspection warrant and considered what, if any, regula-
tory or enforcement action was warranted.
***
For the foregoing reasons, the district court’s issuance of the
administrative warrant authorizing an inspection of the Sanctuary and
its order preliminarily enjoining removal of the ship from the Balti-
more pier are
AFFIRMED.