Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
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`UNITED STATES OF AMERICA and the
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`STATE OF TEXAS,
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`Plaintiffs,
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`v.
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`KIRBY INLAND MARINE, LP,
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`Defendant.
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`__________________________________________)
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`COMPLAINT
`The United States of America, by authority of the Attorney General of the United States,
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`acting at the request of the National Oceanic and Atmospheric Administration (“NOAA”), and
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`the State of Texas (the “State”), appearing through the Office of the Texas Attorney General on
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`behalf of the Texas General Land Office (“TGLO”), the Texas Commission on Environmental
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`Quality (“TCEQ”), and the Texas Parks and Wildlife Department (“TPWD”), file this Complaint
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`and allege as follows:
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`NATURE OF THE CASE
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`1.
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`This is a civil action brought against Defendant Kirby Inland Marine, LP (“Kirby”
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`or “Defendant”) for recovery of damages for injury to, destruction of, loss of, or loss of use of
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`natural resources, under Section 1002 of the Oil Pollution Act (“OPA”), 33 U.S.C. § 2702. On
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`May 10, 2019, oil in the form of a gasoline blending stock known as reformate was discharged
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`from Kirby’s tank barge 30015T during a collision with the tanker ship Genesis River near
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`Bayport, Texas. Oil discharged from the Kirby barge into the Houston Ship Channel and
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`proceeded to impact portions of the Ship Channel, Galveston Bay, and the Texas coastline.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`__________________________________________
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`UNITED STATES OF AMERICA and the
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`STATE OF TEXAS,
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`Plaintiffs,
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`v.
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`KIRBY INLAND MARINE, LP,
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`Defendant.
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`__________________________________________)
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`COMPLAINT
`The United States of America, by authority of the Attorney General of the United States,
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`acting at the request of the National Oceanic and Atmospheric Administration (“NOAA”), and
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`the State of Texas (the “State”), appearing through the Office of the Texas Attorney General on
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`behalf of the Texas General Land Office (“TGLO”), the Texas Commission on Environmental
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`Quality (“TCEQ”), and the Texas Parks and Wildlife Department (“TPWD”), file this Complaint
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`and allege as follows:
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`NATURE OF THE CASE
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`1.
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`This is a civil action brought against Defendant Kirby Inland Marine, LP (“Kirby”
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`or “Defendant”) for recovery of damages for injury to, destruction of, loss of, or loss of use of
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`natural resources, under Section 1002 of the Oil Pollution Act (“OPA”), 33 U.S.C. § 2702. On
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`May 10, 2019, oil in the form of a gasoline blending stock known as reformate was discharged
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`from Kirby’s tank barge 30015T during a collision with the tanker ship Genesis River near
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`Bayport, Texas. Oil discharged from the Kirby barge into the Houston Ship Channel and
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`proceeded to impact portions of the Ship Channel, Galveston Bay, and the Texas coastline.
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 2 of 8
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`Plaintiffs seek damages under OPA to compensate for and restore natural resources injured by
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`the oil discharge. Plaintiffs also seek to recover their unreimbursed assessment and restoration
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`planning costs.
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`JURISDICTION AND VENUE
`The Court has jurisdiction over the subject matter of this action pursuant to
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`2.
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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 jurisdiction over Defendant.
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`3.
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`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
`Section 1002(a) of OPA, 33 U.S.C. § 2702(a), provides that “each responsible
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`4.
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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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`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 the
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`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.
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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 means
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`of transportation on water, other than a public vessel.”
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`8.
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`Section 1001(23) of OPA, 33 U.S.C. § 2701(23), defines “oil” to mean “oil of any
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 3 of 8
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`kind or in any form, including petroleum.”
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`9.
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`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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`10.
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`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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`11.
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`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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`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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`12.
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`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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`13.
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`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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`14.
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`The trustees for the natural resources injured by the oil discharge include NOAA
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`on behalf of the United States, and TGLO, TCEQ, and TPWD on behalf of the State of Texas
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`(collectively, the “Trustees”).
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`15.
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`NOAA is designated as a trustee pursuant to Section 1006(b)(2) of OPA,
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 4 of 8
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`33 U.S.C. § 2706(b)(2), Subpart G of the National Oil and Hazardous Substances Pollution
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`Contingency Plan (“NCP”) (40 C.F.R. § 300.600, et seq.) and Executive Order 12580 (3 C.F.R.,
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`1987 Comp. p. 193, 52 Fed. Reg. 2923 (January 23, 1987) as amended by Executive Order
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`12777 (56 Fed. Reg. 54757 (October 22, 1991)).
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`16.
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`TGLO, TCEQ, and TPWD are designated as trustees by the Governor of Texas
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`pursuant to Section 1006(b)(3) of OPA, 33 U.S.C. § 2706(b)(3), and subpart G of the NCP,
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`40 C.F.R. § 300.605.
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`17.
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`Pursuant to OPA, the Trustees are acting on behalf of the public to seek damages
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`for the injury to, destruction of, loss of, or loss of use of natural resources resulting from the
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`discharge of oil.
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`CLAIM FOR RELIEF
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`Natural Resource Damages under Section 1002 of OPA
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`18.
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`19.
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`The preceding paragraphs are realleged and incorporated herein by reference.
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`On May 10, 2019, oil in the form of a gasoline blending stock known as reformate
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`was discharged into the Houston Ship Channel from Kirby’s tank barge 30015T during a
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`collision with the 755-foot tanker ship Genesis River near Bayport, Texas. Kirby’s barge 30015T
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`was connected to another Kirby tank barge, and both barges were being pushed by the Kirby
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`towing vessel M/V Voyager. The bow of the Genesis River cut through the double hull of Kirby’s
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`barge 30015T and ruptured two of the barge’s oil storage tanks. Oil discharged from the barge
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`into the waterway and polluted parts of the Houston Ship Channel, Galveston Bay, and the Texas
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`coastline.
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`20.
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`Chemical components of reformate are known to be harmful to terrestrial and
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`aquatic life.
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 5 of 8
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`21.
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`Kirby is the “responsible party” for Kirby’s tank barge 30015T within the
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`meaning of Section 1001(32)(A) of OPA, 33 U.S.C. § 2701(32)(A).
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`22.
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`Kirby is a corporate entity and a “person” within the meaning of Section 1001(27)
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`of OPA, 33 U.S.C. § 2701(27).
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`23.
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`At the time of the oil discharge, Kirby was the owner and operator of the tank
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`barge 30015T.
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`24.
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`Kirby’s tank barge 30015T is a “vessel” within the meaning of Section 1001(37)
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`of OPA, 33 U.S.C. § 2701(37).
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`25.
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`The spilling of oil from the Kirby tank barge was a “discharge” within the
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`meaning of Section 1001(7) of OPA, 33 U.S.C. § 2701(7). Kirby reported to TGLO that the
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`incident resulted in an estimated discharge of 14,278.14 barrels (about 600,000 gallons) of oil
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`into the waterway.
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`26.
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`The reformate 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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`27.
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`The Houston Ship Channel and Galveston Bay are “navigable waters” of the
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`United States within the meaning of Section 1001(21) of OPA, 33 U.S.C. § 2701(21).
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`28.
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`The oil discharge polluted portions of the Houston Ship Channel, Galveston Bay,
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`and the Texas coastline where it washed ashore roughly between Red Bluff and Eagle Point.
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`29.
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`Numerous types of aquatic life are known to inhabit the areas impacted by the oil
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`discharge.
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`30.
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`Kirby, the United States Coast Guard, and the State responded to the spill and
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`conducted and monitored cleanup efforts.
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`31.
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`The oil discharge caused injury to, destruction of, loss of, or loss of use of
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 6 of 8
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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 subtidal and intertidal habitats and aquatic life.
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`32.
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`During the oil spill response and cleanup, dead marine organisms, including fish
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`and invertebrates, were observed at several locations along the western shoreline of Galveston
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`Bay, with stranded animals observed and collected between May 13 and May 19, 2019. The
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`stranded species ranged from pelagic (open water) to demersal (bottom dwelling) species.
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`33.
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`The Trustees for the United States and the State are coordinating injury
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`assessment and restoration efforts.
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`34.
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`To assess natural resource injuries, the Trustees are using information from the
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`response and preassessment work, including field observations, oil chemistry, oil toxicity from
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`literature, modeling, and calculated reformate concentrations. The Trustees are using this
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`information to determine the compensatory restoration requirements for the oil spill.
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`35.
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`Plaintiffs have incurred costs in assessing injuries to natural resources resulting
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`from the oil spill and in their initial restoration planning.
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`36.
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`Pursuant to Section 1002(a) and (b)(2) of OPA, 33 U.S.C. § 2702(a) and (b)(2),
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`Kirby is liable to the United States and to the State for damages for injury to, destruction of, loss
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`of, or loss of use of natural resources, including the reasonable costs of assessing such injury,
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`destruction, loss, or loss of use resulting from the discharge of oil from Kirby’s vessel as alleged
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`in this Complaint.
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`REQUEST FOR RELIEF
`WHEREFORE, Plaintiffs respectfully request that the Court:
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 7 of 8
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`A.
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`Award Plaintiffs a judgment against Defendant Kirby Inland Marine, LP
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`for all damages for injury to, destruction of, loss of, or loss of use of natural resources,
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`including reimbursement of Plaintiffs’ assessment and restoration planning costs; and
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`B.
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`Award Plaintiffs such other and further relief as the Court deems just and
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`proper.
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`Respectfully submitted,
`FOR THE UNITED STATES OF AMERICA:
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`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`Environment and Natural Resources Division
`United States Department of Justice
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`/s/ Jason T. Barbeau
`JASON T. BARBEAU
`Senior Trial Attorney (D.C. Bar No. 468200)
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044
`(202) 616-8908 (telephone)
`(202) 616-6584 (facsimile)
`jason.barbeau@usdoj.gov
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`JENNIFER LOWERY
`Acting United States Attorney
`Southern District of Texas
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`DANIEL DAVID HU
`Chief, Civil Division (Texas Bar No. 10131415)
`United States Attorney’s Office
`Southern District of Texas
`1000 Louisiana, Suite 2300
`Houston, TX 77002
`Phone: (713) 567-9518
`E-mail: daniel.hu@usdoj.gov
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`Case 3:21-cv-00180 Document 1 Filed on 07/13/21 in TXSD Page 8 of 8
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`FOR THE STATE OF TEXAS:
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` KEN PAXTON
` Attorney General of Texas
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` BRENT WEBSTER
` First Assistant Attorney General
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` *
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` GRANT DORFMAN
` Deputy First Assistant Attorney General
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` SHAWN COWLES
` Deputy Attorney General for Civil Litigation
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` PRISCILLA M. HUBENAK
` Chief, Environmental Protection Division
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`/s/ Phillip Ledbetter*
` PHILLIP LEDBETTER
` Assistant Attorney General
` Attorney-in-Charge
` State Bar No. 24041316
` Southern District Bar No. 1401529
` Phillip.Ledbetter@oag.texas.gov
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` Office of the Attorney General of Texas
` Environmental Protection Division
` P.O. Box 12548, MC-066
` Austin, TX 78711-2548
` Telephone: 512-475-4152
` Facsimile: 512-320-0911
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` COUNSEL FOR THE STATE OF TEXAS ON BEHALF
`OF THE TEXAS GENERAL LAND OFFICE, THE
`TEXAS PARKS AND WILDLIFE DEPARTMENT, AND
`THE TEXAS COMMISSION ON ENVIRONMENTAL
`QUALITY
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` Counsel for the State of Texas provided consent for the placement of his electronic signature
`on this pleading.
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