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.
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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.
J URISDICTION 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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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.
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. Badgers 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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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.
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 J une 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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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.
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. Defendants website has advertised that Badgers 2013 operating season will run from
May 6, 2013, through October 13, 2013.
38. Defendants website has advertised that Defendant is accepting reservations for crossings
between Manitowoc and Ludington for the 2013 operating season.
39. Defendants 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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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.
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 Badgers 2013 operating season starts.
41. Upon information and belief, unless enjoined by this Court, Badgers 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 J une 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 Badgers 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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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.
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 J ustice
Environment and Natural Resources Division

s/ Robert E. Maher, Jr.
Robert E. Maher, J r.
Assistant Section Chief
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611
robert.maher@usdoj.gov
(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
randall.stone@usdoj.gov
(202) 514-1308
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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.
OF COUNSEL:

Nicole Wood-Chi
Office of Regional Counsel
U.S. Environmental Protection Agency Region 5
77 West J ackson 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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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.
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
barry.hartman@klgates.com

Christine J ochim Boote
K&L Gates LLP
1601 K Street, NW
Washington, DC 20006-1600
christine.boote@klgates.com


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

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