epa/doj complaint against lake michigan trans-lake shortcut (lake michigan carferry) for clean water...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

__________________________________________ ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No. ) LAKE MICHIGAN TRANS-LAKE ) SHORTCUT, INC., d/b/a LAKE MICHIGAN ) CARFERRY SERVICE and S.S. BADGER, ) ) Defendant. ) __________________________________________)

COMPLAINT

The United States of America, by the authority of the Attorney General and through the

undersigned attorney, acting at the request of the Administrator of the Environmental Protection

Agency (EPA), files this complaint and alleges as follows:

NATURE OF ACTION

1. This civil action is filed pursuant to Section 309 of the Clean Water Act (CWA or Act),

33 U.S.C. § 1319. The United States seeks injunctive relief and civil penalties.

PARTIES

2. Plaintiff is the United States of America. Authority to bring this action is vested in the

Attorney General by 28 U.S.C. §§ 516 & 519 and 33 U.S.C. § 1366.

3. Defendant is Lake Michigan Trans-Lake Shortcut, Inc., a corporation.

4. Defendant is a “person” within the meaning of CWA § 502(5), 33 U.S.C. § 1362(5).

5. Defendant does business under the names Lake Michigan Carferry Service and S.S.

Badger.

Case 1:13-cv-00317 Doc #1 Filed 03/22/13 of 9 Page ID#1

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COMPLAINT United States v. Lake Michigan Trans-Lake Shortcut, Inc., d/b/a Lake Michigan Carferry Service., Inc., and d/b/a “S.S. Badger.”

JURISDICTION AND VENUE

6. This court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345 because this

is a civil action commenced by the United States that arises under the laws of the United States,

and under 28 U.S.C. § 1355 because this is an action for recovery of a penalty incurred under an

Act of Congress.

7. Venue is proper in this district under CWA § 309(b), 33 U.S.C. § 1319(b), because

Defendant is located and does business in this district.

8. Notice of the commencement of the action has been given to the States of Wisconsin and

Michigan as directed by CWA § 309(b), 33 U.S.C. § 1319(b).

STATUTORY AND REGULATORY AUTHORITY

9. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant

into waters of the United States except as in compliance with certain provisions of the CWA,

including Section 402, 33 U.S.C. § 1342.

10. Section 402 of the Act, 33 U.S.C. § 1342, establishes the National Pollutant Discharge

Elimination System (NPDES) permit program.

11. Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines “discharge of a pollutant” to

include “any addition of any pollutant to navigable waters from any point source.”

12. Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines “navigable waters” to mean

“the waters of the United States, including the territorial seas.”

13. Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines “point source” to mean “any

discernible, confined and discrete conveyance, including but not limited to any . . . vessel or

other floating craft, from which pollutants are or may be discharged.”


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14. Section 309(b) of the Act, 33 U.S.C., § 1319(b), authorizes the Administrator of EPA to

commence a civil action for appropriate relief, including a permanent or temporary injunction,

when any person is in violation of Section 301 of the Act, 33 U.S.C. § 1311, or of any NPDES

permit conditions or limitation implementing Section 301 (Effluent Limitations) or 302 (Water

Quality Related Effluent Limitations) of the Act, 33 U.S.C. § 1311 or 1312, among other

provisions.

15. Section 309(d) of the Act, 33 U.S.C. § 1319(d), and 40 C.F.R. § 19.4 provide, in part, that

any person who violates Section 301 of the Act, 33 U.S.C. § 1311, or any NPDES permit

condition or limitation implementing Section 301 (Effluent Limitations) or 302 (Water Quality

Related Effluent Limitations) of the Act, 33 U.S.C. § 1311 or 1312, among other provisions,

shall be subject to a civil penalty not to exceed $37,500 per day.

GENERAL ALLEGATIONS

16. Defendant owns and operates a coal-fired steamship of 4244 tons, 393.7 feet in length,

IMO No. 5033583, named Badger.

17. Defendant operates Badger on Lake Michigan, ferrying passengers and vehicles between

Manitowoc, Wisconsin, and Ludington, Michigan. Badger sometimes carries freight or makes

shoreline cruises.

18. Badger’s operating season runs from May to October or November.

19. The burning of coal on Badger generates coal ash and coal ash slurry, which Defendant

routinely discharges into Lake Michigan.

20. The waters of Lake Michigan are “waters of the United States” within the meaning of

Section 502(7) of the Act, 33 U.S.C. § 1362(7), and as defined at 40 C.F.R. § 122.2.


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21. Badger is a “point source” as that term is defined in Section 502(14) of the CWA,

33 U.S.C. § 1362(14).

22. Coal ash and coal ash slurry are and contain “pollutant(s)” as that term is defined in

Section 502(6) of CWA, 33 U.S.C. § 1362(6).

23. On December 19, 2008, under authority of CWA § 402, 33 U.S.C. § 1342, EPA issued

NPDES Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels

(the Vessel General Permit). The Vessel General Permit covers incidental discharges from,

among other vessels, vessels longer than 79 feet that submit notice of intent to be covered under

the Vessel General Permit.

24. Badger is longer than 79 feet.

25. On June 23, 2009, Defendant submitted to EPA notice of intent for Badger to be covered

under the Vessel General Permit.

26. Badger is subject to Part 2.3 of the Vessel General Permit.

27. Part 2.3.2.1 of the Vessel General Permit states among other things that “if you discharge

to an impaired water without an EPA-approved or established TMDL, you are required to

comply with the requirements in Part 2.3.1, including any additional requirements that EPA may

impose pursuant to that section.”

28. Part 2.3.1 of the Vessel General Permit states, among other things, that a “discharge must

be controlled as necessary to meet applicable water quality standards in the receiving waterbody

. . . .” Part 2.3.1 further states that “[i]f at any time you become aware, or EPA determines, that

your discharge causes or contributes to an exceedance of applicable water quality standards, you

must take corrective actions . . . .”


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29. Part 5.3 of the Vessel General Permit sets forth requirements pertaining to “Large

Ferries.”

30. Under Part 5.3 of the Vessel General Permit, “Ferries are vessels for hire designed to

carry passengers and/or vehicles between two ports . . . .”

31. The term “Large Ferry” is defined as “a ‘ferry’ that: a) has a capacity greater than or

equal to 100 tons of cargo, e.g., for cars, trucks, trains, or other land-based transportation or b) is

authorized by the Coast Guard to carry 250 or more people.”

32. Badger is a vessel for hire designed to carry passengers and/or vehicles between two

ports, and has a capacity greater than or equal to 100 tons of cargo or is authorized by the Coast

Guard to carry 250 or more people.

33. Badger is a Large Ferry within the meaning of Part 5.3 of the Vessel General Permit.

34. Badger is subject to the requirements of Part 5.3 of the Vessel General Permit.

35. Subject to conditions, Part 5.3.1.1 of the Vessel General Permit authorized the discharge

of coal ash slurry from coal fired propulsion systems on a ferry into waters until midnight,

December 19, 2012.

36. Since midnight, December 19, 2012, Defendant and Badger have not been authorized to

discharge coal ash or coal ash slurry.

37. Defendant’s website has advertised that Badger’s 2013 operating season will run from

May 6, 2013, through October 13, 2013.

38. Defendant’s website has advertised that Defendant is accepting reservations for crossings

between Manitowoc and Ludington for the 2013 operating season.

39. Defendant’s website advertises that Badger will make approximately 500 scheduled

crossings during 2013. This does not include cargo trips or shoreline cruises.


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40. Upon information and belief, Defendant has not taken sufficient action to ensure that

discharges of coal ash and coal ash slurry will cease when Badger’s 2013 operating season starts.

41. Upon information and belief, unless enjoined by this Court, Badger’s coal ash and coal

ash slurry discharges during the 2013 operating season will violate the Vessel General Permit

and Section 301 of the Act, 33 U.S.C. § 1311.

CLAIM FOR RELIEF

42. The States of Michigan and Wisconsin have listed Lake Michigan as an impaired

waterway for mercury.

43. The coal ash and coal ash slurry discharges from Badger must meet the water quality

standards established by Michigan and Wisconsin.

44. Michigan and Wisconsin have set water quality standards for mercury in Lake Michigan

at 1.3 nanograms per liter (ng/L).

45. Defendant submitted sampling data to EPA in June 2012. Based on that data, which

Defendant stated was representative of coal ash discharges for the entire 2012 season, Defendant

became aware and EPA determined that Badger’s discharges of coal ash and coal ash slurry

throughout the 2012 operating season violated the Vessel General Permit requirements

concerning exceedance of the Michigan and Wisconsin water quality standards for mercury in

Lake Michigan. Defendant did not take corrective action during the 2012 operating season.

46. For these violations, Defendant, as the owner and operator of Badger, is liable for

injunctive relief and for a civil penalty not to exceed $37,500 per day for each violation.


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PRAYER FOR RELIEF

WHEREFORE, Plaintiff, the United States of America, requests that the Court enter

judgment on behalf of the United States and against Defendant as follows:

(1) That the Defendant be permanently enjoined from violating the Clean Water Act and

any applicable NPDES permit;

(2) That the Defendant be assessed, pursuant to CWA Section 309(d), 33 U.S.C.

§ 1319(d), a civil penalty for each day of each violation of CWA Section 301(a) and 309(a), 33

U.S.C. §§ 1311(a) and 1319(a), which penalty shall not exceed $37,500 per day for each

violation;

(3) That the United States be awarded costs and disbursements in this action; and

(4) That this Court grant Plaintiff, the United States of America, such other relief as the

Court may deem just and proper.

Respectfully submitted, U.S. Department of Justice Environment and Natural Resources Division s/ Robert E. Maher, Jr.

Robert E. Maher, Jr. Assistant Section Chief Environmental Enforcement Section P.O. Box 7611, Ben Franklin Station Washington, DC 20044-7611 [email protected] (202) 514-4241

s/ Randall M. Stone Randall M. Stone, Senior Attorney Sumona N. Majumdar, Trial Attorney

Environmental Enforcement Section P.O. Box 7611, Ben Franklin Station Washington, DC 20044-7611 [email protected] (202) 514-1308


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OF COUNSEL: Nicole Wood-Chi Office of Regional Counsel U.S. Environmental Protection Agency Region 5 77 West Jackson Boulevard, Mail Code: C-14J Chicago, IL 60604-3507 (312) 886-0664 Cheryl Rose Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, Mail Code 2243A Washington, DC 20460 (202) 564-4136


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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Complaint was served on the following individuals on this date, by electronic mail and first class U.S. Mail, in accordance with Section XIII of the proposed Consent Decree in this case:

Vice President of Navigation Lake Michigan Carferry Service 701 Maritime Drive, P.O. Box 708 Ludington, Michigan 49431 Barry M. Hartman K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 [email protected] Christine Jochim Boote K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 [email protected]

Dated: March 22, 2013 s/ Sumona N. Majumdar


epa/doj complaint against lake michigan trans-lake shortcut (lake michigan carferry) for clean water...

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