Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF LOUISIANA
`
`
`
`
`
`
` CIVIL ACTION NO.
`
`
`
`UNITED STATES OF AMERICA and
`STATE OF LOUISIANA,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`AMERICAN COMMERCIAL BARGE
`LINE LLC
`
`
`Defendant.
`
`
`
`
`
`COMPLAINT
`
`The United States of America, by authority of the Attorney General of the United States,
`
`acting at the request of the National Oceanic and Atmospheric Administration (“NOAA”), the
`
`United States Department of the Interior (“DOI”) through the United States Fish and Wildlife
`
`Service (“FWS”), and the United States Department of Commerce (“Commerce”), and the State
`
`of Louisiana (“State”), appearing through the Louisiana Oil Spill Coordinator’s Office,
`
`Department of Public Safety & Corrections (“LOSCO”), Louisiana Department of Natural
`
`Resources (“LDNR”), Louisiana Department of Environmental Quality (“LDEQ”), Louisiana
`
`Department of Wildlife and Fisheries (“LDWF”), and the Louisiana Coastal Protection and
`
`Restoration Authority (“CPRA”) (collectively, the “Trustees”), through the undersigned
`
`attorneys, file this Complaint and allege as follows:
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`NATURE OF THE ACTION
`
`1. This is a civil action, brought against Defendant American Commercial Barge
`
`Line LLC (“ACBL”), for recovery of damages for injury to, loss of, or destruction of natural
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF LOUISIANA
`
`
`
`
`
`
` CIVIL ACTION NO.
`
`
`
`UNITED STATES OF AMERICA and
`STATE OF LOUISIANA,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`AMERICAN COMMERCIAL BARGE
`LINE LLC
`
`
`Defendant.
`
`
`
`
`
`COMPLAINT
`
`The United States of America, by authority of the Attorney General of the United States,
`
`acting at the request of the National Oceanic and Atmospheric Administration (“NOAA”), the
`
`United States Department of the Interior (“DOI”) through the United States Fish and Wildlife
`
`Service (“FWS”), and the United States Department of Commerce (“Commerce”), and the State
`
`of Louisiana (“State”), appearing through the Louisiana Oil Spill Coordinator’s Office,
`
`Department of Public Safety & Corrections (“LOSCO”), Louisiana Department of Natural
`
`Resources (“LDNR”), Louisiana Department of Environmental Quality (“LDEQ”), Louisiana
`
`Department of Wildlife and Fisheries (“LDWF”), and the Louisiana Coastal Protection and
`
`Restoration Authority (“CPRA”) (collectively, the “Trustees”), through the undersigned
`
`attorneys, file this Complaint and allege as follows:
`
`NATURE OF THE ACTION
`
`1. This is a civil action, brought against Defendant American Commercial Barge
`
`Line LLC (“ACBL”), for recovery of damages for injury to, loss of, or destruction of natural
`
`
`
`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 2 of 11
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`resources under Sections 1002(a) and (b) of the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C.
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`§ 2702(a) and (b)(2), and Section 2480 of the Louisiana Oil Spill Prevention and Response Act
`
`(“OSPRA”), La. R.S. 30:2480. Plaintiffs seek damages in order to compensate for injury to,
`
`destruction of, loss of, or loss of use of certain natural resources resulting from an oil spill
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`caused by the collision of the ocean-going tanker M/V TINTOMARA with ACBL’s tanker
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`barge DM-932 under tow by the M/V MEL OLIVER on the Mississippi River near New
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`Orleans, Louisiana in July 2008. Plaintiffs also seek to recover unreimbursed costs of assessing
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`such damages and planning related restoration.
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`JURISDICTION AND VENUE
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`2. This Court has jurisdiction over the subject matter of this action pursuant to
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`28 U.S.C. §§ 1331 and 1345 and Section 1017(b) of OPA, 33 U.S.C. § 2717(b). The Court also
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`has supplemental jurisdiction over the State law claim pursuant to 28 U.S.C. § 1367.
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`3. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), and Section
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`1017(b) of OPA, 33 U.S.C. § 2717(b), because Defendant resides and does business in this
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`district and the oil discharge occurred in this district.
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`STATUTORY BACKGROUND
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`The Oil Pollution Act of 1990
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`4.
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`Section 1002(a) of OPA, 33 U.S.C. § 2702(a), provides that “each responsible
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`party for a vessel or a facility from which oil is discharged . . . into or upon the navigable waters
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`or adjoining shorelines or the exclusive economic zone is liable for the removal costs and
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`damages specified in [33 U.S.C. § 2702(b)] that result from such incident.”
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`2
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`5.
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`Section 1001(32)(A) of OPA, 33 U.S.C. § 2701(32)(A), defines “responsible
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`party” to include, in the case of a vessel, “any person owning, operating, or demise chartering
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`the vessel.”
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`6.
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`Section 1001(27) of OPA, 33 U.S.C. § 2701(27), defines “person” to include a
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`corporation, partnership, or association.
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`7.
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`Section 1001(37) of OPA, 33 U.S.C. § 2701(37), defines “vessel” to mean “every
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`description of watercraft or other artificial contrivance used, or capable of being used, as a
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`means of transportation on water, other than a public vessel.”
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`8.
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`Section 1001(26) of OPA, 33 U.S.C. § 2701(26), defines “owner or operator” to
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`mean “in the case of a vessel, any person owning, operating, or chartering by demise, the
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`vessel.”
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`9.
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`Section 1001(23) of OPA, 33 U.S.C. § 2701(23), defines “oil” to mean “oil of
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`any kind or in any form, including petroleum, [and] fuel oil.”
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`10. Section 1001(7) of OPA, 33 U.S.C. § 2701(7), defines “discharge” to mean “any
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`emission (other than natural seepage), intentional or unintentional,” and to include “spilling,
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`leaking, pumping, pouring, emitting, emptying, or dumping.”
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`11. Section 1001(21) of OPA, 33 U.S.C. § 2701(21), defines “navigable waters” to
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`mean “the waters of the United States, including the territorial seas.”
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`12. Section 1002(b)(2) of OPA, 33 U.S.C. § 2702(b)(2), provides that the “damages”
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`referred to in Section 1002(a) of OPA, 33 U.S.C. § 2702(a), include “[d]amages for injury to,
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`destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of
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`3
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`assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an
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`Indian tribe trustee, or a foreign trustee.”
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`13. Section 1001(20) of OPA, 33 U.S.C. § 2701(20), defines “natural resources” to
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`include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other
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`such resources belonging to, managed by, held in trust by, appertaining to, or otherwise
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`controlled by the United States (including the resources of the exclusive economic zone), any
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`State or local government or Indian tribe, or any foreign government.”
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`14. Section 1001(14) of OPA, 33 U.S.C. § 2701(14), defines “incident” to mean “any
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`occurrence or series of occurrences having the same origin, involving one or more vessels . . . ,
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`resulting in the discharge . . . of oil.”
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`The Louisiana Oil Spill Prevention and Response Act
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`15. The purpose of OSPRA is to assist the State of Louisiana “in fulfilling its duties
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`to protect, conserve, and replenish the natural resources of th[e] state in accordance with Article
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`XI, Section 1 of the Constitution of Louisiana.” La. R.S. 30:2453(A).
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`16.
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`It is the intent of OSPRA “to support and complement the Oil Pollution Act of
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`1990 (P.L. 101-380) and other federal law, specifically those provisions . . . relating to the
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`responsibilities of state agencies designated as natural resource trustees. The legislature intends
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`[OSPRA] to be interpreted and implemented in a manner consistent with federal law.”
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`La. R.S. 30:2453(B).
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`17. OSPRA provides that a responsible party shall make full payment or initiate
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`restoration, rehabilitation, replacement, or mitigation of damages to natural resources after
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`4
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`completion of an assessment of natural resource damages and the amount of the damages by the
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`state agencies designated as natural resource trustees. La. R.S. 30:2480(G).
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`18. “Responsible party” means “[t]he owner or operator of a vessel . . . from which
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`an unauthorized discharge of oil emanates or threatens to emanate.” La. R.S. 30:2454(22)(a).
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`“Responsible party” also includes any person “who causes, allows, or permits an unauthorized
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`discharge of oil or threatened unauthorized discharge of oil.” La. R.S. 30:2454(22)(c).
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`19. “Owner” or “operator” means “[a]ny person owning, operating, or chartering by
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`demise a vessel[.]” La. R.S. 30:2454(20)(a).
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`20. “‘Vessel’ includes every description of watercraft or other contrivance used or
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`capable of being used as a means of transportation on water, whether self-propelled or
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`otherwise, including barges.” La. R.S. 30:2454(30).
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`21.
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` “‘Unauthorized discharge of oil’ means any actual or threatened discharge of oil
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`not authorized by a federal or state permit.” La. R.S. 30:2454(29).
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`22. “‘Discharge of oil’ means an intentional or unintentional act or omission by
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`which harmful quantities of oil are spilled, leaked, pumped, poured, emitted, or dumped into or
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`on coastal waters of the state or at any other place where, unless controlled or removed, they
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`may drain, seep, run, or otherwise enter coastal waters of the state.” La. R.S. 30:2454(7).
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`23. “‘Oil’ means oil of any kind or in any form, including but not limited to crude
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`oil, petroleum, [and] fuel oil . . . .” La. R.S. 30:2454(18).
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`24. “Damages” means and includes “damages for injury to, destruction of, or loss of
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`natural resources as defined in [OSPRA], includ[ing] the reasonable and any direct, documented
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`cost to assess, restore, rehabilitate, or replace injured natural resources, or to mitigate further
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`5
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 6 of 11
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`injury, and their diminution in value after such restoration, rehabilitation, replacement or
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`mitigation, which shall be recoverable by the state of Louisiana.” La. R.S. 30:2454(5)(a).
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`25. “‘Natural resources’ means all land, fish, shellfish, fowl, wildlife, biota,
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`vegetation, air, water, groundwater supplies, and other similar resources owned, managed, held
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`in trust, regulated, or otherwise controlled by the state.” La. R.S. 30:2454(17).
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`26. NOAA and FWS are the designated United States trustees of natural resources
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`injured by ACBL’s oil discharge pursuant to Section 1006(b)(2) of OPA, 33 U.S.C. §
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`2706(b)(2), Subpart G of the National Oil and Hazardous Substances Pollution Contingency
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`Plan (“NCP”) (40 C.F.R. §§ 300.600 et seq.), and Executive Order 12580 (3 C.F.R., 1987
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`Comp. p. 193, 52 Fed. Reg. 2923 (January 23, 1987)), as amended by Executive Order 12777,
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`56 Fed. Reg. 54757 (October 19, 1991).
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`27. The Louisiana trustees, LOSCO, LDNR, LDEQ, LDWF, and CPRA
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`(collectively, the “State Trustees”) are designated by the Governor of Louisiana as State trustees
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`of natural resources injured by ACBL’s oil discharge pursuant to Section 1006(b)(3) of OPA, 33
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`U.S.C. § 2706(b)(3), and 40 C.F.R. § 300.605.
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`FIRST CLAIM FOR RELIEF
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`Natural Resource Damages under Section 1002 of OPA
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`28. Paragraphs 1 through 14 and 26 through 27 are realleged and incorporated herein.
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`29. ACBL is a corporation and a “person” within the meaning of Section 1001(27) of
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`OPA, 33 U.S.C. § 2701(27)
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 7 of 11
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`30. At the time of the oil discharge, ACBL was the “responsible party” as owner of
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`the tanker barge DM-932 and tug M/V MEL OLIVER within the meaning of Section
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`1001(32)(A) of OPA, 33 U.S.C. § 2701(32)(A).
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`31. ACBL’s tanker barge DM-932 is a “vessel” within the meaning of Section
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`1001(37) of OPA, 33 U.S.C. § 2701(37).
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`32. On or about July 23, 2008, the tug M/V MEL OLIVER was pushing tanker barge
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`DM-932 upriver on the Mississippi River. DM-932 was carrying 9,983 barrels (419,286
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`gallons) of #6 fuel oil. At the same time, the M/V TINTOMARA was sailing downriver on the
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`Mississippi River. As the M/V MEL OLIVER and M/V TINTOMARA closed, the M/V MEL
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`OLIVER began an arcing turn to port and crossed in front of the M/V TINTOMARA. The M/V
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`TINTOMARA struck barge DM-932, causing the release of an estimated 6,734 barrels (282,828
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`gallons) of #6 fuel oil into the waters of the Mississippi River over a two-week period.
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`33. The spilling of oil from tanker barge DM-932 was a “discharge” within the
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`meaning of Section 1001(7) of OPA, 33 U.S.C. § 2701(7).
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`34. All of the oil released during the incident was “oil” within the meaning of
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`Section 1001(23) of OPA, 33 U.S.C. § 2701(23).
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`35. The Mississippi River is a “navigable water” of the United States within the
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`meaning of Section 1001(21) of OPA, 33 U.S.C. § 2701(21).
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`36. The incident occurred during a high water event along the Mississippi River and
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`oil was transported downstream rapidly. As the waters receded, oil became stranded in the
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`batture between the river and the adjacent levees, on rip-rap, in crevices in rip-rap, and along the
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`shoreline.
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 8 of 11
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`37. The discharged oil spread more than 100 miles downriver and covered over 5,000
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`acres of shoreline habitat, although large amounts of the #6 fuel oil remained present near the
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`incident site.
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`38. As a result of the discharge, the United States Coast Guard closed the River from
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`RMM 98 (just upriver from New Orleans) to the Southwest Pass Sea Buoy. The closure was in
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`place from July 23, 2008 until July 29, 2008, affecting commerce and human use activities such
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`as recreational fishing and shoreline use.
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`39. The incident also generated several days of public complaints related to the oil
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`odors from the spill.
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`40. ACBL, the United States, and the State responded to the spill and conducted and
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`monitored cleanup efforts. The discharge lasted until August 10, 2008, when final salvage
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`efforts were completed.
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`41. The oil discharge polluted portions of the Mississippi River and the batture
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`between the river and the adjacent levees, rip-rap, crevices in rip-rap, and along the river’s
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`shoreline.
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`42. The oil discharge caused injury to, destruction of, loss of, or loss of use of
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`“natural resources” belonging to, managed by, held in trust by, appertaining to, or otherwise
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`controlled by the United States or the State within the meaning of Section 1001(20) of OPA,
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`33 U.S.C. § 2701(20), including riverine batture habitat, aquatic/water column organisms, birds,
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`and marsh, and resulted in lost recreation and lost use of marsh restoration material.
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`43. NOAA and FWS have incurred costs in assessing injuries to natural resources
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`resulting from the oil spill, including costs related to restoration planning.
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 9 of 11
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`44. Pursuant to Section 1002(a) and (b)(2) of OPA, 33 U.S.C. § 2702(a) and (b)(2),
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`ACBL is liable to the United States and to the State for damages for injury to, destruction of,
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`loss of, or loss of use of natural resources, including the reasonable costs of assessing such
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`injury, destruction, loss, or loss of use resulting from the discharge of oil from ACBL’s vessel as
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`alleged in this Complaint.
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`SECOND CLAIM FOR RELIEF
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`Natural Resource Damages under Section 2480 of OSPRA
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`
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`45. The preceding paragraphs are realleged and incorporated herein by reference.
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`46. The Louisiana trustees, LOSCO, LDNR, LDEQ, LDWF, and CPRA serve as
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`State Trustees under OSPRA according to La. R.S. 30:2451, et seq. and La. Admin. Code tit. 43,
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`part XXIX, et seq.
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`47. ACBL was the owner and operator of tanker barge DM-932 and, as such, is the
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`“responsible party” under OSPRA. La. R.S. 30:2454(22).
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`48. The oil discharge from tanker barge DM-932 on or about July 23 through August
`
`10, 2008 was not authorized by a federal or state permit and therefore constitutes an
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`“unauthorized discharge of oil” under OSPRA. La. R.S. 30:2454(29).
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`49. The unauthorized discharge of oil caused injury to, destruction of, or loss of
`
`natural resources managed, held in trust, and/or regulated by the State Trustees.
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`50. The State Trustees have incurred costs in assessing damages to natural resources
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`resulting from the unauthorized discharge of oil, including costs related to restoration planning.
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 10 of 11
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`51. Pursuant Section 2480 of OSPRA, La. R.S. 30:2480, ACBL is liable to the State
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`Trustees for natural resource damages, including the reasonable cost of assessing such damages,
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`resulting from the unauthorized discharge of oil from ACBL’s vessel as alleged herein.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully pray that this Court:
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`Award Plaintiffs a judgment against the Defendant for all damages for injury to,
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`1.
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`destruction of, loss of, or loss of use of natural resources, including reimbursement of Plaintiffs’
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`assessment and restoration planning costs; and
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`2.
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`Grant Plaintiffs such other relief as this Court may deem appropriate.
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`Respectfully submitted,
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`FOR PLAINTIFF UNITED STATES OF AMERICA:
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`
`
`TODD KIM
`Assistant Attorney General
`Environment and Natural Resources Division
`United States Department of Justice
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`
`
`/s/ Scott M. Cernich
`SCOTT M. CERNICH (DC# 479851), T.A.
`Senior Counsel
`Environmental Enforcement Section
`Environment and Natural Resources
`Division
`United States Department of Justice
`P.0. Box 7611, Benjamin Frank1in Station
`Washington, D.C. 20044-7611
`Telephone: (202) 514-0056
`Facsimile: (202) 514-2583
`scott.cernich@usdoj.gov
`
`DUANE A. EVANS
`UNITED STATES ATTORNEY
`
`/s/ Peter M. Mansfield
`Peter M. Mansfield
`Assistant United States Attorney
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`Case 2:21-cv-01818-CJB-DMD Document 1 Filed 10/04/21 Page 11 of 11
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`Chief of Civil Division
`Office of the United States Attorney
`650 Poydras Street, Suite 1600
`New Orleans, LA 70130
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`FOR PLAINTIFF STATE OF LOUISIANA:
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`
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`/s/ Stephanie C. Morris*
`STEPHANIE C. MORRIS
`Attorney, LA Bar Roll No. 30279
`La. Oil Spill Coordinator’s Office
`P. O. Box 66614
`Baton Rouge, LA 70896
`(225) 925-6606 (Telephone)
`(225) 925-7068 (Facsimile)
`stephanie.morris@la.gov
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`*Counsel for the State of Louisiana provided consent for the placement of her electronic
`signature on this pleading.
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