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Did EPA tighten its requirements of the coal-burning Badger? Not so much

Except for one highly hypothetical fine, the deal announced last week looks pretty much like the one laid out last March.

Having stalled for as long as they could, the Badger operators have essentially bought themselves two additional years of operating outside the law.

In a strangely self-congratulatory announcement on its website, the U.S. Environmental Protection Agency’s regional office in Chicago has brought probable closure to its case against the coal-burning S.S. Badger ferry service across Lake Michigan:

 EPA has announced the filing of a motion to enter a revised consent decree that requires Lake Michigan Car Ferry Service, Inc. (LMC) of Ludington, Mich.,  to cease the discharge of coal ash from the S.S. Badger at the end of the 2014 sailing season. The revised consent decree was strengthened in response to almost 8000 public comments on the proposed consent decree that was lodged March 2013 … .

The proposed consent decree has been revised:

  • doubles stipulated penalties for non-compliance with the deadline for ceasing coal ash discharges.
  • limits the mercury and coal ash content of coal used by the S.S. Badger during the 2014 sailing season.
  • requires LMC to report information on the quantity of coal ash discharged by the S.S. Badger.
  • requires LMC to pay a $25,000 civil penalty for violating mercury water quality standards in 2012.

If you read that text the way I do, you might assume that each of those provisions is either new or somewhat toughened from the earlier version. That would be wrong.

Slight changes at best

Just to double-check my memory of a subject I’ve written on before, I looked at the revisions announced Friday alongside the original consent decree. Item by item, and in reverse order of EPA’s listing, here is what changed:

  • The penalty for violating Clean Water Act standards on mercury in 2012  — the last year of five in which EPA specifically agreed to let the Badger  operate outside the rules — is unchanged from the original deal. It was $25,000 last March and it’s $25,000 now.
  • The requirement that LMC “report information on the quantity of coal ash discharged by the Badger” was also part of the original deal. The revised decree simply lays out the detailed requirements of what the reports must contain and how often they must be submitted.
  • As for “limit(ing) the mercury and coal ash content of coal used by the S.S. Badger during the 2014 sailing season,” the original agreement required a 15 percent reduction in total coal consumption next year from this year’s levels. The new provision simply requires LMC to “exercise best efforts, as measured by what is economically practicable,” to find coal with an ash content below 6.25% and mercury content below 0.05 parts per million.
  • As for the penalty if  LMC should fail to meet the biggest requirement of all — an end to ash dumping as of the 2015 sailing season — the original agreement set the daily fine at $3,000. The revised penalty is $3,000 a day for the first seven days of the season, after which it goes to $6,000.

But nobody really expects that to happen.

An end to stalling?

Having stalled for as long as they could, by contending first that the Badger‘s discharges of coal-ash slurry didn’t violate federal mercury standards, and then by claiming there was no feasible technology for retaining the ash on board for disposal in landfills, the Badger operators have  essentially bought themselves two additional years of operating outside the law — as well as relief from possible civil and criminal penalties that are waived as part of the decree.

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Because they agreed to the timetable, you have to think two years is enough time to install the equipment to avert the daily fines.

On the other hand, there are some close observers who might wager  that we haven’t seen the last of LMC’s efforts to push back the deadlines — even that the company may simply shut down when its last bluff is called.

EPA’s long delay in finalizing the consent decree — it was filed last March 22, and the 30-day public comment period ended in late April — led to some speculation that the 7,900 comments it received were, in fact, moving the agency to significantly toughen its requirements of LMC. As it turns out, not so much.

Samples of press treatment

Press coverage of the revised deal has been cursory and stenographic for the most part, quoting from the EPA announcement of a supposedly stricter settlement and LMC’s press release without further ado. A sample of the latter:

 “The consent decree process has been extensive and has taken much longer than we had hoped. This action is a huge milestone on the long road we have been traveling to keep the Badger sailing. This ensures that the Badger will be sailing long into the future,” stated Bob Manglitz President & CEO of LMC.

The Consent Decree requires the reduction of the Badger’s ash discharge in 2013 and during the five-month operating season of 2014. LMC had already started taking action to reduce and ultimately eliminate the ash discharge prior to the start of the Consent Decree process by using coal that produces less ash.

LMC has also been proactive working toward eliminating the ash discharge during the Consent Decree review process by starting the engineering and design work necessary for the installation of a sophisticated ash retention system – a technology never before implemented on a steamship.

As often, some of the more insightful reporting on the Badger‘s convoluted course through the shoals of federal regulation came from the Chicago Tribune’s Michael Hawthorne. A few choice paragraphs:

Built in 1953 to carry railroad cars, the Badger started plying Lake Michigan when dozens of other coal-burning ships were being retired or converted to cleaner diesel fuel. Supporters promote the car ferry as a nostalgic vacation shortcut and an important part of the tourist economy in its port cities of Manitowoc, Wis., and Ludington, Mich.

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After the Badger’s owners negotiated a 2008 deal with the EPA, the ship continued to dump about 509 tons of coal ash into Lake Michigan during each spring-to-fall season. That amount far exceeds the 89 tons of coal, limestone and iron waste that all other Great Lakes freighters combined discharge into the lake annually, according to federal records.

Each [day] it sails, the ferry dumps about 4 tons of coal ash into the lake — waste concentrated with arsenic, lead, mercury and other toxic metals.

By requiring the Badger to burn cleaner coal next year, the court-enforced order would substantially reduce the amount of mercury discharged into the lake by the ferry. Tests conducted last year found that mercury concentrations in the ship’s coal ash were as high as 200 parts per trillion, far higher than the federal Great Lakes standard of 1.3 parts per trillion.

The consent decree now awaits approval by a federal district judge in Grand Rapids, Mich. It is unopposed.