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Owners agree to stop dumping ash from Great Lakes’ last coal-fired ferry

The deal represents a dramatic turnabout in the company’s public position of just a few weeks ago, when it seemed to be daring EPA to shut the Badger down.

The operators of the S.S. Badger have agreed to stop dumping mercury-laden coal ash into Lake Michigan.

The Badger has blinked.

After years of pretending to explore alternative fuels, while investing heavily in congressional intercession, operators of the last coal-fired passenger vessel on the Great Lakes agreed on Friday to stop dumping mercury-laden coal ash into Lake Michigan.

In return for facing the facts of federal law, Lake Michigan Carferry got two more years’ grace from the U.S. Environmental Protection Agency (EPA). LMC will have the 2013 and 2014 summer sailing seasons to modify the Badger and set up landside facilities to retain the ash — about a ton from each of four daily crossings  — and offload it for disposal ashore.

To some environmentalists this is an undeserved extension of special treatment that LMC and its elderly vessel have received during years of exemption from federal and state pollution laws. And it is fair to say that LMC has used that time mostly for denial, arguing that its ash did not violate mercury standards and that onboard retention was impossible.

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On the other hand, there’s much to be said for the EPA’s calculation that a negotiated settlement with the Badger owners “offers the fastest and most certain path available to EPA to stop the discharge of coal ash from the Badger into Lake Michigan.”

And the deal certainly represents a dramatic turnabout in the company’s public position of just a few weeks ago, when it seemed to be daring EPA to shut the Badger down. LMC put the word around through friendly newspapers and a Michigan congressman that it would start its 2013 season early, on May 6, with or without renewal of its operating permit that expired in mid-December.

With a permit or without

LMC’s legal theory was that it was entitled to operate the Badger under terms of the expired permit while its application for a new one was under review by the EPA. It put out a press release announcing its retention of a Washington law firm and quoting Barry Hartman,  identified as former head of the Justice Department’s environment division, as saying,

Under federal laws, anyone who applies for a new permit to replace an expiring one like LMC has done is specifically allowed by law to keep operating under the expired permit until a final decision is made on the new permit. … Every year there are as many as 10,000 companies operating under expired permits like the Badger’s.

Well, 10,000 sounds a little high. But the more important point is that these situations typically involve coal-fired power plants and other facilities providing, shall we say, a public service more essential than the Badger’s funky impersonation of a cruise ship.

U.S. Rep. Bill Huizenga, a Michigan Republican who failed to get the Badger specifically exempted from EPA regulation, acknowledged as much in an interview with the Michigan Business Review.

Nevertheless, he said just 10 days ago, LMC was preparing to start sailing even as it headed into federal court with EPA: “Depending on the Badger’s legal challenges one way or the other, they will start up operations this May. They are very confident that they will be sailing this season.”

LMC’s settlement with EPA takes the form of a consent decree, in which the company admits no guilt but nevertheless agrees to settle pending federal charges of violating the Clean Water Act and the terms of its operating permit.

As I have written before, the EPA file in this case shows that the Badger owners have played games with the agency’s protocols for collection and analysis of ash samples over the years, and repeatedly missed deadlines for submitting financial records and other permit-related documents last summer and fall.

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No more denials on mercury

The company has also used its PR machinery to persuade lots of Badger fans that testing had proved the ash benign.

However, the criminal complaint that LMC is settling by consent states that Badger ash samples submitted last June proved it was over the legal limit for mercury. And the company is agreeing to pay a $25,000 penalty for that.

The decree also requires LMC to take a number of interim steps to reduce the Badger‘s ash-dumping before it ceases completely, no later than the start of the 2015 season:

  • By this June 31, the company must give EPA its detailed plan for retaining and disposing of ash on land. This plan must include deadlines for design, construction and implementation of the new ash-handling systems.
  • From the start of the 2013 season onward, the Badger must reduce its average daily coal consumption and prove it is doing so. (Though the amount of reduction is unspecified, this is still a significant requirement: EPA enforcement has centered on water pollution from discharged ash, but as any passenger can attest, air pollution from the Badger’s boilers is not trivial.)
  • Throughout the 2014 season, the Badger must cut its ash discharges from 2013 levels by 15 percent, presumably through some combination of reduced consumption and reduced dumping.

The limits of regulation

Does the Badger deserve this additional reprieve? Should people be, as Illinois Sen. Dick Durbin said in response to the settlement, “outraged that this filthy ship will continue to operate”?

I can’t say. I admit I’ve had a soft spot for the old tub since my first crossing a few years ago. And I’ve written about environmental regulation for too long to see most issues, including this one, in black-and-white, good-and-evil terms.

The best solution by far was for the Badger to convert to diesel years ago. There was even federal help available. But it would have been expensive — and the Badger is a business, after all.

Conversion to liquefied natural gas is the dream solution but probably not achievable in the foreseeable future, given the infrastructure costs of piping fuel to a dock area that has, at the moment, one customer.

Some people seem to think the EPA has the power to require alternative fuels in a case like this. But the reality of American environmental regulation is that it can only really insist on minimum compliance with the law, and at reasonably affordable cost.

The obvious solution has always been ash retention. Indeed, LMC proved years ago that it could keep the ash aboard, for test purposes, during a crossing. Nevertheless, it kept insisting that doing so routinely simply wasn’t feasible — until EPA called its bluff.

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And that’s where even the Badger‘s fans — myself included, I guess — can feel a little outrage. We should be insulted by this long campaign of delay, denial and regulation-bashing, and by the efforts to enlist us all as petitioners in that campaign.

We should also be glad the campaign has ended.

That press release I quoted above, about the Washington lawyer? I found it quoted in several places, including the Fond du Lac Reporter‘s edition of Feb. 26. But it is gone from LMC’s website at this writing, along with all other traces of its anti-EPA harangues and obfuscations.

Having resolved their old boat’s legal status, perhaps the owners will now retrofit their public profile with a better brand of citizenship.