Via K&L Gates
Lake Michigan Carferry, Inc., the operator of the SS Badger today filed the first ever individual permit application to authorize routine discharges from the vessel under the federal Clean Water Act. The SS Badger is the last coal fired vessel passenger ferry operating in the United States. It ferries thousands of passengers and equipment between Ludington, Michigan and Manitowoc, Wisconsin. As a coal fired vessel, ash from the boilers must be discharged while the vessel is underway.
The Clean Water Act requires that all discharges into waters of the United States be authorized by a permit under the National Pollution Discharge Elimination System (“NPDES”). Until 2008 discharges incidental to the normal operations of vessels were exempt from the permit requirement. In 2008 EPA established a nationwide permit program that regulated 26 incidental discharges from normal operations of vessels. While the coal ash discharge was included in the 2008 nationwide permit, because the Badger is a ‘one of a kind’ vessel, EPA determined that any future permit for the discharge of coal ash should be considered through an individual NPDES permit. Historically this discharge was exempt by regulation because it is a discharge incidental to the normal operation of a vessel.But that regulation was eliminated.
Preparing the individual permit application was challenging and unprecedented. First the EPA required that the company ask permission to file the application. We think this is the first time in the history of the Clean Water Act that a company that wanted to apply for a permit which the law requires, first had to ask permission to do so. We don’t know if this is a position that EPA will take with just the maritime industry, or whether it will apply to others as well. Fortunately EPA granted us permission in late February.
Second, unlike other industries that must have NPDES permits, there is no established federal program for individual NPDES permits for the maritime industry. EPA has been relying on the nationwide “vessel general permit” to cover the industry. Third, unlike all other entities those are required to have NPDES permits, the Badger moves and does not have single fixed discharge location which makes testing and other issues a particular challenge. Fortunately, EPA determined back in 2008 that allowing this discharge to continue was appropriate and we think that remains the case, despite effort to develop an alternative technology.”
Testing shows that given how the coal ash discharge occurs, it does not violate applicable water quality standards and policies, and does not create risk to human health and the environment.
The 1,000+ page application describes how permitting the continued discharge of the coal ash under certain conditions is the “Best Available Technology” which is the legal standard that must be met to obtain an NPDES permit to discharge any pollutant, including dirt and even hot water. The company is currently working toward conversion of the ferry to liquid natural gas, which would eliminate this discharge and the need for a permit to authorize it, but those systems are not technologically feasible or economically realistic for the Badger. The current permit expires on December 19, 2012. This application was filed over a month before the June 29, 2012 deadline set by EPA Region 5. The application also pointed out the significant reduction in air pollution and other issues as a result of thousands of cars and trucks not having to drive hundreds of miles around Lake Michigan to get to Wisconsin.
Mark Ruge, Barry Hartman and Christine Joachim Boote in the Washington office of K&L Gates assisted the company in preparing the application materials, working with Kathryn Hall, an environmental scientist with Limnotech in Ann Arbor, MI.