Case 3:22-cv-00373 Document 1 Filed 09/01/22 Page 1 of 12 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

UNITED STATES OF AMERICA, :

:
Plaintiff, :
: Case No. 3:22-cv-00373
v. :
: In Admiralty
WESTERN RIVERS ASSETS, LLC, and :
RIVER MARINE ENTERPRISES, LLC, :
:
Defendants. :
:

COMPLAINT

Plaintiff United States of America alleges as follows:

NATURE OF THE ACTION

1. This action is brought in accordance with the Oil Pollution Act of 1990

(“OPA”), 33 U.S.C. §§ 2701-2761, to recover costs arising from the cleanup, removal,

and disposal of the Uninspected Tow Vessel GATE CITY (“UTV GATE CITY” or

“GATE CITY”), formerly moored on the right descending bank of the Big Sandy River

in Kenova, West Virginia, a navigable waterway of the United States.

2. The costs at issue were paid by the Oil Spill Liability Trust Fund (the

“Fund”) as part of oil removal actions conducted by the U.S. Coast Guard Marine Safety

Unit Huntington. In addition to the oil removal actions themselves, the costs are from

paid claims filed under 33 U.S.C. § 2713 from uncompensated Oil Spill Response

Organizations and the municipality where the spill occurred. The claims were paid by
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the Fund and now, under its subrogated rights, the Fund seeks reimbursement from the

defendants.

JURISDICTION AND VENUE

3. This Court has jurisdiction over the subject matter and over the parties

pursuant to 33 U.S.C. § 2717(b), and 28 U.S.C. §§ 1331, 1333, 1345, and 1355.

4. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 33

U.S.C. § 2717(b).

5. Authority to bring this action is vested in the United States Department of

Justice by 28 U.S.C. §§ 516 and 519.

6. This is an admiralty and maritime claim against each of the Defendants, in

personam, and within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure.

PARTIES

7. Defendant Western Rivers Assets, LLC (“Western Rivers”), is a Kentucky

Limited Liability Company with its principal place of business in Ashland, Kentucky,

and was doing business within this District and within the jurisdiction of this Court

through, inter alia, its ownership of the UTV GATE CITY, at the time of, and with

respect to, the matters sued upon in this Complaint. Western Rivers’ registered agent is

David K. Smith, 1008 Argillite Road, Flatwoods, Kentucky 41139.

8. Defendant River Marine Enterprises, LLC (“River Marine”), is a Kentucky

Limited Liability Company with its principal place of business in Paducah, Kentucky,

and was doing business within this District and within the jurisdiction of this Court

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through, inter alia, the operator of the UTV GATE CITY, at the time of, and with respect

to, the matters sued upon in this Complaint. River Marine’s registered agent is David K.

Smith, 2014 Cairo Road, Paducah, Kentucky 42001.

STATUTORY AND REGULATORY BACKGROUND

9. OPA Section 1002(a), 33 U.S.C. § 2702(a), provides that:

“Notwithstanding any other provision or rule of law, and subject to the provisions of this

Act, each responsible party for a vessel or a facility from which oil is discharged, or

which poses the substantial threat of a discharge of oil, into or upon the navigable waters

or adjoining shorelines or the exclusive economic zone is liable for the removal costs and

damages specified in subsection (b) that result from such incident.”

10. At all material times, the UTV GATE CITY was a “vessel” within the

meaning of OPA, 33 U.S.C. § 2701(37).

11. OPA Section 1001, 33 U.S.C. § 2702(32), defines a responsible party, in

the case of a vessel, as: “any person owning, operating, or demise chartering the vessel.”

12. At all material times, Defendant Western Rivers was the “owner” of the

UTV GATE CITY and therefore is the responsible party for the vessel’s oil discharge.

13. At all material times, Defendant River Marine was the “operator” of the

UTV GATE CITY and therefore is the responsible party for the vessel’s oil discharge.

See 33 U.S.C. § 2701(26); United States v. Bestfoods, 524 U.S. 51 (1998) (sharpening the

definition of “operator” to someone who does “conduct the affairs of, manage, or operate

a business”); Harris v. Oil Reclaiming Co., 94 F. Supp. 2d 1210, 1213 (D. Kan. 2000)

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(opining that courts rely on the Bestfoods definition when analyzing the liability of an

operator under OPA); see also United States v. Jones, 267 F. Supp. 2d 1349, 1353–56

(M.D. Ga. 2003).

14. Federal removal actions are funded through the Fund. The Fund is

administered by the U.S. Coast Guard’s National Pollution Funds Center (“NPFC”) and

financed in part by recoveries from responsible parties.

GENERAL ALLEGATIONS

15. The UTV GATE CITY (O.N. 272715) was a 116.5-foot steel-hulled towing

vessel. Built in 1956, it weighed 348 gross tons.

16. On November 27, 2017, two towing vessels, the UTV GATE CITY and the

UTV ANNA C (also owned and operated by the defendants), tied off to each other, were

found in states of significant disrepair, moored on the right descending bank of the Big

Sandy River, a navigable waterway of the United States in Kenova, West Virginia.

17. On December 5, 2017, personnel from U.S. Coast Guard Marine Safety

Unit (“MSU”) Huntington issued Defendant Western Rivers a Notice of Federal Interest

and an Administrative Order citing a substantial threat of discharge of oil. The deadline

for compliance with the Administrative Order was January 31, 2018, however on January

10, 2018, the UTV GATE CITY sank at its moorings and discharged oil into the river.

18. U.S. Coast Guard Sector Ohio Valley estimated that 5,000 gallons of oil

and diesel were released and reportedly 6,000-9,000 gallons of oil product remained

onboard the UTV GATE CITY. Defendant River Marine notified its insurance carrier,

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Safe Harbor, which later denied coverage asserting that the vessel’s dilapidated condition

violated the policy terms.

19. The responsible parties in this case, supra at ¶¶ 7-8, do not deny liability for

this debt. Rather, the responsible parties have been unable to pay after their insurance

company denied coverage for the incident under the theory that the vessel’s dilapidated

condition breached the insurance policy. See Safe Harbor Pollution Ins. v. River Marine

Enter., LLC, ___ F. Supp. 3d ___, No. 18 Civ. 5942, 2022 WL 889811, at *7–9

(S.D.N.Y. Mar. 25, 2022).

20. On January 17, 2018, Defendant River Marine hired Evergreen AES

Environmental, Clean Harbors Environmental Services, Weavertown Environmental

Group, and Safety-Kleen Systems to perform oil spill response activities. MSU

Huntington served as the Federal On-Scene Coordinator (“FOSC”) to oversee the

response activities. The spill occurred just upriver from a water plant that supplies both

Kenova and West Huntington. The plant was forced to shut down for 36 hours, and

subsequently had to engage in extensive testing and delivery by truck instead of

pipelines.

21. Since the GATE CITY and the ANNA C were tied off to each other, the

ANNA C was severely oiled, and had to be moved to facilitate raising and cleaning the

GATE CITY. The M/V MICHAEL C was brought in to move the ANNA C to the

opposite bank.

22. On January 14, the Incident Command Post reported that freezing

temperatures and rising river levels were hampering response. The drum skimmers and

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vacuum trucks were continually freezing up. Because of the rising river levels 18” hard

boom had to be placed around the GATE CITY and throughout several collection points

downstream from the spill.

23. Operations were slow and limited to debris removal because of continued

freezing temperatures. Four thousand five hundred (4,500) gallons of oil product was

removed from the ANNA C, and it was moved and moored outside of the response area.

24. On January 29, salvage equipment was brought in to lift the GATE CITY

and effect temporary repairs so that the vessel could remain afloat. From February 8 to

March 6, salvage and cleanup were suspended due to high waters and fast river

conditions.

25. On March 7, hired tugs took the GATE CITY to a shipyard for cleaning.

All salvage equipment was then demobilized. On March 13, 2018, the FOSC issued the

final pollution report.

CLAIMS RECEIVED, ITEMIZED EXPENSES

AND COLLECTION EFFORTS

26. The United States incorporates by reference paragraphs 1 through 25 of this

Complaint.

27. Payment of any claim or obligation by the Fund under OPA shall be subject

to the United States Government acquiring by subrogation all rights of the claimant or

State to recover from the responsible party. 33 U.S.C. § 2712(f). A claimant, upon

accepting a settlement offer, executes a release and assigns all its rights and actions under

any law to the United States Government. The National Pollution Funds Center

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(“NPFC”) then seeks cost recovery of the claims paid, often with the support of the U.S.

Department of Justice.

28. Eight claimants presented uncompensated costs to Western Rivers and

River Marine. When the Responsible Parties (“RPs”) failed to settle the claims by

payment within 90 days the claimants presented their claims to the Fund for adjudication.

The NPFC, pursuant to its procedures, notified the Defendants, as RPs under OPA, of the

receipt of each claim via letter, noting that it would adjudicate and offer OPA-

compensable reimbursement amounts to each claimant.

29. The letters noted that the RPs could negotiate with the claimants and settle

the claims at any time. Seven of the claims resulted in payments to the claimants from

the Fund. Those claims are:

A. Claim N18023-0001: The claimant is Evergreen AES

Environmental. River Marine hired Evergreen to perform oil pollution response

activities and failed to pay them for the work provided. The NPFC paid the

claimant $790,699.80 on September 05, 2019.

B. Claim N18023-0002: The claimant is Clean Harbors Environmental

Service. River Marine hired Clean Harbors to perform oil pollution response

activities and failed to pay them for the work provided. The NPFC paid the

claimant $192,430.36 on August 7, 2019.

C. Claim N18023-0003: The claimant is Weavertown Environmental

Group. River Marine hired Weavertown to perform oil pollution response

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activities and failed to pay them for the work provided. The NPFC paid the

claimant $609,576.66 on December 9, 2019.

D. Claim N18023-0004: The claimant is Safety-Kleen Systems. River

Marine hired Safety-Kleen to perform oil pollution response activities and failed

to pay them for the work provided. The NPFC paid the claimant $13,754.50 on

August 13, 2019.

E. Claim N18023-0005 and N18023-0006: The claimant is the city of

Kenova. The city of Kenova was forced to shut down its water plant because of

the spill. Kenova purchased water service in bulk for the customers of the water

plant. The NPFC paid Kenova $149,867.45 on September 20, 2019.

F. Claim N18023-0007: This claim was denied.

G. Claim N18023-0008: The claimant is the city of Kenova. The city

of Kenova was forced to shut down its water plant because of the spill. Kenova

incurred increased personnel costs associated with the shutdown of the water plant

or otherwise responding to the oil spill. The NPFC paid Kenova $24,988.82 on

May 19, 2020.

30. Itemized expenses incurred by the U.S. Coast Guard are:

A. Direct Costs $1,292.37

B. Claims Paid 1,781,317.59

C. Indirect Costs 74,347.96

Total $1,856,957.92

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31. To collect the costs incurred, the NPFC sent a Notice of Potential Liability

to River Marine Enterprises and Western Rivers Assets on August 27, 2019 and a bill on

September 17, 2020. No payment was received.

FIRST CLAIM FOR RELIEF

OIL POLLUTION ACT OF 1990

32. The United States incorporates by reference paragraphs 1 through 31 of this

Complaint.

33. Pursuant to OPA, 33 U.S.C. § 2701, et seq., “each responsible party for a

vessel from which oil is discharged, or which poses the substantial threat of discharge,

into or upon the navigable waters or adjoining shorelines . . . is liable for the removal

costs and damages . . . that result from such incident.” 33 U.S.C. § 2702(a).

34. The Big Sandy River is part of the navigable waters of the United States.

35. Pursuant to OPA, and under the circumstances herein, the Defendants are

liable to the United States, without limitation, for all the aforesaid removal costs and

damages sustained by the United States because of the matters alleged in this Complaint.

The sum of the United States’ costs and damages to date is $1,856,957.92.

SECOND CLAIM FOR RELIEF

OIL POLLUTION ACT OF 1990

36. The United States incorporates by reference paragraphs 1 through 35 of this

Complaint.

37. Pursuant to OPA, 33 U.S.C. § 2712(f), the Fund shall be subrogated to all

rights, claims, and causes of action of claimants to whom it has paid compensation.

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38. As a result of the matters alleged in this Complaint, the Fund incurred

costs, damages, and/or disbursements by reason of claims for removal costs and damages

brought against it under OPA.

39. Pursuant to OPA, and under the circumstances herein, the Defendants are

liable to the United States, without limitation, for all such removal costs, damages, and/or

disbursements which may be sustained by the Fund because of the matters alleged in this

Complaint.

THIRD CLAIM FOR RELIEF

OIL POLLUTION ACT OF 1990

40. The United States incorporates by reference paragraphs 1 through 39 of this

Complaint.

41. Pursuant to OPA, 33 U.S.C. § 2717(f)(2), the United States is entitled to,

and hereby seeks, a declaratory judgment that is binding in any subsequent action or

actions that the Defendants are liable for removal costs and damages in any such

subsequent action or actions pertaining to the matters alleged in this Complaint.

RESERVATION OF RIGHTS

42. At this time the United States is not seeking damages for loss or injury to

natural resources, or for the assessment of any such loss, but reserves the right to do so in

the future should it be necessary.

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REQUEST FOR RELIEF

WHEREFORE, Plaintiff United States of America respectfully requests that this

Court: (1) enter a judgment of joint and several liability against the Defendants and in

favor of the United States, in the amount of $1,856,957.92, plus all costs incurred by the

Fund by reason of this claim, including interest (to include prejudgment interest); and (2)

grant a declaratory judgment against the Defendants for pollution removal costs or

damages binding in any subsequent action or actions to recover further removal costs or

damages, plus interest; and (3) grant such other relief as may be appropriate.

DATED: September 1, 2022

Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
Civil Division

WILLIAM S. THOMPSON
United States Attorney

/s/ Jason S. Bailey

W. Va. Bar No. 13582
Assistant United States Attorney
United States Attorney’s Office
300 Virginia Street, East, Room 4000
Charleston, WV 25301
Phone: 304-345-2200
Fax: 304-347-5443
E-mail: jason.bailey2@usdoj.gov

/s/ Stephen M. Ketyer

STEPHEN M. KETYER
D.C. Bar No. 450125
Trial Attorney
U.S. Department of Justice
Civil Division, Torts Branch

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Post Office Box 14271

Washington, DC 20044-4271
Phone: (202) 616-4034 (Direct)
Fax: 616-4002
Email: stephen.ketyer@usdoj.gov

Attorneys for the United States of America

OF COUNSEL:

LCDR KRISTEN M. BYERS

National Pollution Funds Center, U.S. Coast Guard
2703 Martin Luther King Jr. Avenue SE
Washington, DC 20593

CDR JARED HOOD

Office of Claims and Litigation (CG-LCL)
U.S. Coast Guard Headquarters
2703 Martin Luther King Jr. Ave, SE, Stop 7213
Washington, DC 20593-7213

BRIAN JUDGE, Chief

Office of Claims and Litigation (CG-LCL)
U.S. Coast Guard Headquarters
2703 Martin Luther King Jr. Ave, SE, Stop 7213
Washington, DC 20593-7213

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JS 44 (Rev. 04/21) CIVIL 1-1 Filed SHEET
COVER 09/01/22 Page 1 of 1 PageID #: 13
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
WESTERN RIVER ASSETS LLC and
UNITED STATES OF AMERICA RIVER MARINE ENTERPRISES LLC
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Boyd (KY)
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
U.S. Department of Justice
P.O. Box 14271, Washington, DC 20044-4271
(202) 616-4034
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
✖ 1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement ✖ 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Oil Pollution Act, 33 U.S.C. §§ 2701-2761
VI. CAUSE OF ACTION Brief description of cause:
Action arises from the cleanup, removal, and disposal of a vessel GATE CITY moored in the Big Sandy River in Kenova, West Virginia.
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. $1,856,957.92 JURY DEMAND: Yes ✖ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
9/1/2022 /s/ Stephen M. Ketyer
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE