United States v. Swift Beef Company

Filing 6

CONSENT DECREE -Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court as to the United States, the State and Defendant. The Clerk of the Court is directed to terminate this case for statistical purposes. Ordered by Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

)
)
)
THE STATE OF NEBRASKA
)
)
Plaintiffs,
) Civil Action No. 8:11-cv-216
)
v.
)
)
SWIFT BEEF COMPANY
)
)
Defendant.
)
)
__________________________________________)
UNITED STATES OF AMERICA, and

CONSENT DECREE
WHEREAS, Plaintiffs, the United States of America, on behalf of the United States
Environmental Protection Agency (“EPA”), and the State of Nebraska, on behalf of the Nebraska
Department of Environmental Quality (“NDEQ”) (collectively Plaintiffs) have filed a Complaint
in this action against Defendant, Swift Beef Company (Defendant).
WHEREAS Defendant is a corporation organized and existing under the laws of the State
of Delaware and authorized to conduct business in the State of Nebraska.
WHEREAS at all times relevant here, Defendant has owned and operated a meat
processing plant (“the Facility”) for beef in Grand Island, Nebraska (“the City”).
WHEREAS on January 1, 2004, the NDEQ issued to Defendant a National Pollutant
Discharge Elimination System (“NPDES”) permit, Permit Number NE0113891, ( “2004
Permit”) pursuant to Section 402 of the CWA, 33 U.S.C. ' 1342, which permitted Defendant to
discharge facility wastewater from its plant to the City’s publicly owned treatment works (“
POTW”) for treatment, located within the southern half of Section 14, Township 11 North,

Range 9 West, Hall County, Grand Island, Nebraska, which in turn discharges wastewater to the
Wood River.
WHEREAS Defendant’s 2004 Permit also authorized it to discharge non-contact cooling
water directly to a drainage ditch, which empties into the Wood River. All of the discharges
authorized by the 2004 permit were subject to certain conditions and limitations set forth in the
permit. The 2004 Permit expired on December 31, 2008 and NDEQ issued a new NPDES
Permit on May 1, 2009 (“ 2009 Permit”). The 2009 permit also authorizes Defendant to
discharge to the POTW and Wood River subject to certain conditions and limitations set forth in
the new permit.
WHEREAS, the Defendant’s facility in Grand Island, Nebraska is a user or industrial
user, as defined by 40 C.F.R. ' 403.3(j) and 33 U.S.C. ' 1362(18), of the City of Grand Island’s
POTW, and discharges non-domestic pollutants thereto, as defined at 33 U.S.C. ' 1362(6).
WHEREAS, the Complaint alleges that during the time period of July of 2007 through
March of 2008, the Defendant violated the Federal Water Pollution Control Act, commonly
referred to as the Clean Water Act (“CWA”), 33 U.S.C. ' 1251 et seq.; including the General
Pretreatment Regulations found at 40 C.F.R. Part 403, and Sections 301(a), 307(d) and 309(d) of
the CWA, 33 U.S.C. '' 1311(a), 1317(d), 1319(d), and Title 119, Chapter 26, Section 002.01 of
the Nebraska Administrative Code, by introducing pollutants into the City’s POTW resulting in
pass-through of pollutants or interference with the operations of the POTW which contributed to
the discharge of pollutants from the POTW in excess of the numeric and narrative effluent
limitations set forth in the City’s NPDES permit;

Swift Consent Decree Page 2.

WHEREAS the Complaint alleges that from January of 2006 through September of 2007,
Defendant violated Section 309(d) of the CWA, 33 U.S.C. ' 1319(d) and Neb. Rev. Stat. 811508.02(1)(b) by failing to report excess discharges as required by the Defendant’s 2004 Permit.
WHEREAS the Complaint alleges that on April 22, 2008 and on several occasions from
May, 2009 to February, 2010 Defendant violated Sections 301(a) and 309(b) of the CWA,
33U.S.C. '' 1311(a), 1319(d), and Neb. Rev. Stat. ' 81-1508.02(1)(b) by discharging
wastewater directly to the Wood River in violation of conditions and limitations in the
Defendant’s 2004 and 2009 permits.
WHEREAS the Complaint alleges that Defendant violated Neb. Rev. Stat. ' 811508.02(1)(b) by failing to comply with an Emergency Order issued by the State of Nebraska on
or about April 14, 2008, which required Defendant to meet certain effluent limitations on the
discharge being sent to the POTW. This Emergency Order became final on April 14, 2008 and
was in effect to May 1, 2009.
WHEREAS the Complaint alleges that on or about March 28, 2008, the Defendant
caused the death of fish while failing to perform its duty as set out in Title 119, Chapter 26,
Section 002.0 and the costs to restock the waters of the state with replacement fish and clams is
determined to be $4,704.59 (four thousand seven hundred four dollars and fifty nine cents).
WHEREAS, prior to negotiations to resolve alleged violations of the Clean Water Act
and Nebraska's Statute, the Defendant started the design and construction of and during
negotiations completed the design and construction of and is currently operating and maintaining
a new 25 million gallon anaerobic lagoon treatment system to increase treatment capacity.

Swift Consent Decree Page 3.

WHEREAS, during negotiations to resolve alleged violations of the Clean Water Act and
Nebraska's Statute, the Defendant completed the design and installation of and is currently
operating and maintaining a new system of centrifuges to process grease and address alleged
violations associated with its Dissolved Air Flotation unit.
WHEREAS subsequent to the change in ownership of Swift in July of 2007, Defendant
has made substantial capital expenditures, and completed numerous projects, to enhance the
environmental compliance and performance of the Facility.
WHEREAS Defendant does not admit any of the violations alleged by Plaintiffs in the
Complaint or that it has liability with respect to such allegations. Defendant specifically denies
each of the alleged violations and denies that it has any liability with respect to such allegations.
WHEREAS the Parties recognize, and the Court by entering this Consent Decree finds,
that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation
between the Parties, and is fair, reasonable, and in the public interest.
NOW, THEREFORE, with the consent of the Parties, and without any admission of fact
or law, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:
I. JURISDICTION AND VENUE
1.

This Court has jurisdiction over the subject matter of this action, pursuant to

28 U.S.C. '' 1331, 1345, and 1355; Section 309(b) of the CWA, 33 U.S.C. ' 1319(b), and over
the Parties. Venue lies in the District of Nebraska pursuant to Section 309(b) of the CWA,
33 U.S.C. ' 1319(b) because Defendant is located in this judicial district and the violations
alleged in the Complaint are alleged to have occurred in this judicial district. For purposes of
this Consent Decree, or any action to enforce this Consent Decree, Defendant consents to the

Swift Consent Decree Page 4.

Court’s jurisdiction over this Consent Decree or such action and over Defendant, and consents to
venue in this judicial district.
2.

For purposes of this Consent Decree, Defendant agrees that the Complaint states

claims upon which relief may be granted pursuant to Sections 301, 307 and 309 of the Clean
Water Act, 33 U.S.C. '' 1311, 1317 and 1319.
II. APPLICABILITY
3.

The obligations of this Consent Decree apply to and are binding upon the United

States, the State of Nebraska and upon Defendant and any successor or other entities or persons
otherwise bound by law.
4.

No transfer of ownership or operation of the Facility, whether in compliance with

the procedures of this Paragraph or otherwise, shall relieve Defendant of its obligation to ensure
that the terms of the Decree are implemented. At least thirty (30) Days prior to such transfer,
Defendant shall provide a copy of this Consent Decree to the proposed transferee and shall
simultaneously provide written notice of the prospective transfer, together with a copy of the
proposed transfer agreement, to EPA, the United States and the State, in accordance with Section
XIV of this Decree (Notices). The transfer agreement is not subject to EPA or the State’s
approval except that any attempt to transfer ownership or operation of the Facility without
complying with this Paragraph constitutes a violation of this Decree.
5.

Defendant shall provide a copy of this Consent Decree to all officers, employees,

and agents of Defendant whose duties might reasonably include compliance with any provision
of this Consent Decree.

Swift Consent Decree Page 5.

6.

In any action to enforce this Consent Decree, Defendant shall not raise as a

defense the failure by any of its officers, directors, employees, agents, successors, assigns, or
contractors to take any actions necessary to comply with the provisions of this Consent Decree.
III. DEFINITIONS
7.

Terms used in this Consent Decree that are defined in the CWA or in regulations

promulgated thereunder shall have the meanings assigned to them in the CWA or such
regulations, unless otherwise provided in this Consent Decree. Whenever the terms set forth
below are used in this Consent Decree, the following definitions shall apply:
a.

“2009 Permit” shall mean the National Pollution Discharge Elimination

System/ Nebraska Pretreatment Permit, Permit No. NE0113891, issued to Swift on May 1, 2009
including any modifications thereto or successor permits.
b.

Consent Decree or Decree shall mean this Decree.

c.

DAF Float or Dissolved Air Flotation Float shall mean solid material

which is suspended after dissolved air is released at atmospheric pressure in a flotation tank
which holds wastewaters.
d.

Date of Lodging shall mean the date that this Consent Decree is filed with

the Court prior to the commencement of the public comment period pursuant to Section XIX.
e.

Day shall mean a calendar day unless expressly stated to be a business

day. In computing any period of time under this Consent Decree, where the last day would fall
on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the
next business day.
f.

Defendant shall mean Swift Beef Company.

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f.

EPA shall mean the United States Environmental Protection Agency and

any successor departments or agencies of the United States.
g.

Facility shall mean the beef processing plant owned and operated by

Defendant located at 555 South Stuhr Road, Grand Island, Hall County, Nebraska, as of the Date
of Lodging, and any associated equipment including conduits through which it discharges
effluent from the plant to the Wood River and POTW.
h.

Grand Island or City means the City of Grand Island, Nebraska.

i.

Interest with respect to payments to the United States shall mean the

interest rate established by the Secretary of the Treasury, pursuant to 28 U.S.C. '1961 and
Interest with respect to payments to the State shall mean the rate set forth in Neb. Rev. Stat. '
45-103.
j.

NDEQ shall mean the Nebraska Department of Environmental Quality

and any successor departments or agencies of the State of Nebraska.
k.

NPDES shall mean the National Pollutant Discharge Elimination System

authorized under Section 402 of the Act, 33 U.S.C. ' 1342.
l.

Paragraph shall mean a portion of this Consent Decree identified by an

Arabic numeral.
m.

Parties shall mean the United States, the State of Nebraska and Defendant.

n.

Publicly Owned Treatment Works or POTW shall mean a publicly owned

treatment works or POTW as defined in 40 C.F.R. ' 403.3(q), and includes the City’s
Wastewater Treatment Plant (WWTP) and all aspects of the conveyance of wastewater from
industrial dischargers to the City’s WWTP.

Swift Consent Decree Page 7.

g.

Section shall mean a portion of this Consent Decree identified by a Roman

h.

State shall mean the State of Nebraska on behalf of NDEQ.

i.

Swift shall mean Defendant Swift Beef Company.

j.

United States shall mean Plaintiff, the United States of America, including

numeral.

EPA.
IV. CIVIL PENALTY AND DAMAGES
8.

Defendant shall pay the total sum one million two hundred thousand dollars

($1,200,000) as a civil penalty for its violations of the Clean Water Act to be divided equally
between the United States and State and to be paid pursuant to subparagraphs a. and b. below
a.

Payment of Clean Water Act Penalty to the United States. No later than

thirty (30) days after the Effective Date of this Consent Decree, Defendant shall pay $600,000
with Interest calculated from the Date of Lodging by FedWire Electronic Funds Transfer (EFT)
to the U.S. Department of Justice in accordance with instructions to be provided to Defendant by
the Financial Litigation Unit of the U.S. Attorney’s Office for the District of Nebraska following
lodging of the Consent Decree. Any payments received by the United States after 4:00 p.m.
Eastern Time shall be credited on the next business day. At the time of payment, Defendant
shall simultaneously send written notice of payment and a copy of any transmittal
documentation, which should reference DOJ case number 90-5-1-1-09466 to the United States
and EPA in accordance with Section XIV of this Consent Decree (Notices).

Swift Consent Decree Page 8.

b.

Payment of Clean Water Act Penalty to the State. No later than thirty

(30) days after the Effective Date of this Consent Decree, Defendant shall pay to the State
$600,000 as a civil penalty pursuant to Neb. Const. art. VII, sec. 5.
(1)

Payment of $300,000 shall be made payable to the Hall County

District Court Clerk and shall be mailed with notice referring to this action, to:
Katherine J. Spohn
Special Counsel to the Attorney General
2115 State Capitol
Lincoln, NE 68508-8920

(2)

Payment of $300,000 shall be made into an escrow account to be

created and maintained by Defendant. The escrow agreement for this escrow account shall
specify that the funds in this account, including any interest earned on such funds, may only be
used by the City of Grand Island for construction of a sewer line extension along Highway 281
from approximately the Platte Valley Industrial Park to the south side of Interstate 80 (“Sewer
Line Extension”). The City shall use the funds for such extension project within one year after
the Effective Date of this Consent Decree. Within thirty (30) days after the one year anniversary
of the Effective Date, Swift shall propose one or more projects for the purposes of environmental
stewardship, safety, training, public awareness, public recreation or other related uses, for the
benefit of the City of Grand Island, as permitted by State law. Any such projects are subject to
the approval of the Nebraska Attorney General. Any remaining funds in the escrow account,
including any interest earned on such funds, shall be paid to the City of Grand Island solely to be
used for such approved projects.

Swift Consent Decree Page 9.

9.

Payment of Penalties and Damages for Other State Claims. In addition to the

penalties set forth in Paragraph 8 above, within thirty (30) days of the Effective Date, Defendant
shall make the following payments to the State by the methods specified below.
a.

Penalties for Violation of State Administrative Order. Defendant shall

pay to the State $50,000 as a civil penalty pursuant to Neb. Const. Art. VII, Sec. 5. This
payment shall be made by sending a check payable to the Hall County District Court Clerk and
shall be mailed, with notice referring to this action, to:
Katherine J. Spohn
Special Counsel to the Attorney General
2115 State Capitol
Lincoln, NE 68508-8920
Defendant shall pay an additional $50,000 to the escrow account provided for in Paragraph
8.b.(2) above for use by City of Grand Island for construction of the sewer line extension, or
other approved projects, under the same conditions as set forth in Paragraph 8.b.(2) above.
b.

State Damages, Defendant shall also pay to the State of Nebraska

$4,704.59 (four thousand seven hundred four dollars and fifty nine cents), the amount necessary
to restock the waters of the state with replacement fish and clams as determined by the Director
of the Department of Environmental Quality, after consultation with the Game and Parks
Commission as authorized by Neb. Rev. Stat. '81-1508(1). Payment shall be made payable to
the ANebraska Game and Parks Commission@ and shall be made with notice referring to this
action, to:
Katherine J. Spohn
Special Counsel to the Attorney General
2115 State Capitol
Lincoln, NE 68508-8920

Swift Consent Decree Page 10.

10.

Interest on State Penalties and Damages. In addition to the stipulated penalties set

forth below, in the event Defendant fails to make timely payments of any amount required to be
paid to the State under this Decree, including stipulated penalties, Defendant shall pay Interest
on the unpaid balance. The interest shall be calculated from the first day following the final due
date for these payments, until the entire outstanding balance has been received.
11.

Defendant shall not deduct the civil penalty paid under this Section in calculating

its federal and State income tax.
V. COMPLIANCE REQUIREMENTS
12.

General Compliance with NPDES Permit. Defendant shall comply with all

requirements, conditions and limitations set forth in the 2009 Permit.

13.

Direct Discharges from the Facility to the Grand Island Utility Ditch Industrial

Ditch or the Wood River. Defendant shall fully comply with the final ammonia as nitrogen
limits in the 2009 Permit by no later than December 31, 2012.
14.

Dissolved Air Flotation Float (“DAF Float”).
a, Defendant is currently using a system of centrifuges to process all DAF Float

at the Facility. Defendant shall properly operate and maintain the system of centrifuges unless it
complies with subparagraphs b. c. and d. below.
b.

In the event Defendant is unable to process all DAF Float by use of its

centrifuges for any reason, Defendant may elect to
(i) land apply the DAF Float in compliance with the Sludge Disposal
requirements in Part III of its NPDES/Npp Permit No. NE0113891 and subject to the
requirements of 40 C.F.R. Part 257, NDEQ Title 119 and NDEQ Title 126; or

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(ii) compost the DAF Float in accordance with the requirements of
NDEQ Title 132; or
(iii) register that DAF Float as a soil conditioner pursuant to Neb. Rev.
Stat. Sec. 81-2, 162.01 et seq. and subject to the requirements of that Act; or
(iv) handle the DAF Float in a digester subject to the requirements of any
permits issued for operation of the digester and the conditions of its NPDES/NPP Permit No.
NE0113891.
c.

Prior to disposing of DAF Float, Defendant shall store DAF Float in a

contained structure for no more than 180 (one hundred and eighty) days.
d.

Defendant shall not dispose of DAF Float by any means other than the use

of centrifuges or one of the methods listed in (i) through (iv) above, unless Defendant has
submitted for approval to Plaintiffs an alternative method for handling DAF Float and that
alternative method has been approved by Plaintiffs.
VI. APPROVAL OF DELIVERABLES
15.

After review of any plan, report, proposal, alternative disposal method or other

item (generically submission) that is required to be submitted to EPA and NDEQ pursuant to this
Consent Decree, EPA and NDEQ shall in writing:
a.

approve the submission;

b.

approve the submission upon specified conditions;

c.

approve part of the submission and disapprove the remainder; or

d.

disapprove the submission.

Swift Consent Decree Page 12.

16.

If the submission is approved pursuant to Paragraph 15.a., Defendant shall take

all actions required by the plan, report, proposal or other document, in accordance with the
schedules and requirements of the plan, report, proposal or other document, as approved. If the
submission is conditionally approved or approved only in part, pursuant to Paragraph 15.b. or c.,
Defendant shall, upon written direction from EPA and NDEQ, take all actions required by the
approved plan, report, proposal or other item that EPA and NDEQ determine are technically
severable from any disapproved portions, subject to Defendant=s right to dispute only the
specified conditions or the disapproved portions, or the decision that the disapproved portions
are technically severable under Section X of this Decree (Dispute Resolution).
17.

If the submission is disapproved in whole or in part pursuant to Paragraph 15.c. or

d., Defendant shall, within forty-five (45) Days or such other time as the Parties agree to in
writing, correct all deficiencies and resubmit the plan, report, or other item, or disapproved
portion thereof, for approval, in accordance with the preceding Paragraphs. If the resubmission
is approved in whole or in part, Defendant shall proceed in accordance with the preceding
Paragraph.
18.

Any stipulated penalties applicable to the original submission, as provided in

Section VIII of this Decree, shall accrue during the forty-five (45) Day period or other specified
period, but shall not be payable unless the re-submission is untimely or is disapproved in whole
or in part; provided that, if the original submission was not submitted in good faith, the stipulated
penalties applicable to the original submission shall be due and payable notwithstanding any
subsequent re-submission.

Swift Consent Decree Page 13.

19.

If a resubmitted plan, report, or other item, or portion thereof, is disapproved in

whole or in part, EPA or NDEQ may again require Defendant to correct any deficiencies, in
accordance with the preceding Paragraphs, or may itself/themselves correct any deficiencies,
subject to Defendant=s right to invoke Dispute Resolution and the right of EPA and NDEQ to
seek stipulated penalties as provided in the preceding Paragraphs.
VII. REPORTING REQUIREMENTS
20.

Within thirty (30) Days after the end of each quarter after lodging of this Consent

Decree, until termination of this Decree pursuant to Section XVIII, Defendant shall submit to
EPA and NDEQ a report for the preceding quarter that shall include:
a.

A summary on the progress in implementing Paragraphs 12-14 above;

b.

A description of any non-compliance with the requirements of this

Consent Decree and an explanation of the violation=s likely cause and of the remedial steps
taken, or to be taken, to prevent or minimize such violation. If the cause of a violation cannot be
fully explained at the time the report is due, Defendant shall so state in the report. Defendant
shall investigate the cause of the violation and shall then submit an amendment to the report,
including a full explanation of the cause of the violation, within thirty (30) Days of the Day
Defendant becomes aware of the cause of the violation.
21.

Whenever any violation of this Consent Decree or any applicable permits or any

other event affecting Defendant’s performance under this Decree at the Facility may pose an
immediate threat to the public health or welfare or the environment, Defendant shall notify EPA
and NDEQ orally or by electronic or facsimile transmission as soon as possible, but no later than

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twenty-four (24) hours after Defendant first knew of the violation or event. This procedure is in
addition to the requirements set forth in the preceding Paragraph.
22.

All reports shall be submitted to the persons designated in Section XIV of this

Consent Decree (Notices).
23.

Each report submitted by Defendant under this Section shall be signed by an

official of the submitting party and include the following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons who manage the
system, or those persons directly responsible for gathering the
information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware
that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing
violations.
This certification requirement does not apply to emergency or similar notifications where
compliance would be impractical including Paragraph 19.
24.

The reporting requirements of this Consent Decree do not relieve Defendant of

any reporting obligations required by the Clean Water Act or implementing regulations, or by
any other federal, state, or local law, regulation, permit, or other requirement, or of the
requirement to report force majeure events pursuant to Section IX.
25.

Any information provided pursuant to this Consent Decree may be used by the

United States or State in any proceeding to enforce the provisions of this Consent Decree and as
otherwise permitted by law.
VIII. STIPULATED PENALTIES

Swift Consent Decree Page 15.

26.

Defendant shall be liable for Stipulated Penalties to the United States and the

State for violations of this Consent Decree as specified below, unless excused under Section IX
(Force Majeure). A violation includes failing to perform any obligation required by the terms of
this Consent Decree, including any work plan or schedule approved under this Consent Decree,
according to all applicable requirements of this Consent Decree and within the specified time
schedules established by or approved under this Consent Decree.
27.

If Defendant fails to remit the payment as required under Section IV of this

Decree (Civil Penalty) when due, Defendant shall pay a stipulated penalty of $5000 per day for
each day that the payment is late, together with Interest on the unpaid civil penalty in accordance
with Paragraphs 8-9 from the date when payment was due.
28.

The following stipulated penalties shall accrue per violation per day for each

violation of Defendant=s 2009 Permit as follows:
a.

Unpermitted Discharges or Discharges in Excess of Permit Effluent

Limits:
Type and Number of Violations

Penalty Per Violation

Daily Max Effluent Limit (for first nine violations of a specified
limit)

$1500

Daily Max Effluent Limit (for the 10th through 20th violations of a
specified limit)

$2000

Daily Max Effluent Limit (for the 21st and subsequent violations
of a specified limit)

$3000

Monthly Avg. Effluent Limit

$3000

For any violation that is equal to or greater than 300% of the effluent limit, Defendant shall be
subject to an alternative penalty of $10,000. Failure to conduct a test required to assess

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compliance with a discharge limit shall constitute a violation of the appropriate limit, however, if
Defendant is assessed a stipulated penalty under this subparagraph a. for failure to conduct a test
required to assess compliance, it shall not be liable for a stipulated penalty under subparagraph c.
below. No Stipulated Penalties shall accrue for discharges of ammonia in excess of the limit in
the 2009 Permit that occur before December 31, 2012. The stipulated penalties shall not apply
to the extent that Defendant successfully establishes any defenses under the Clean Water Act or
the 2009 Permit.
b.

Interference/Pass through

Type and Number of Violations

Penalty Per Violation

First Nine Violations

$2000

10th through 20th Violation

$3000

21st and Subsequent Violations

$4000

c.

Monitoring/Sampling

Type and Number of Violations

Penalty Per Violation

First Nine Violations

$2000

10th through 20th Violations

$3000

21st and Subsequent Violations

$4000

d.

Reporting

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Type and Number of Violations

Penalty Per Violation

First Nine Violations

$1000

10th through 20th Violations

$2000

21st and Subsequent Violations

$4000

e.

Other Permit Violations

Type and Number of Violations

Penalty Per Violation

First Nine Violations

$1000

10th Through 20th Violations

$2000

21st and Subsequent Violations

$4000

29.

The following stipulated penalties shall accrue per violation per day for each

violation of the requirements in Paragraph 14 relating to the handling of DAF Float:
Days of Violation

Penalty Per Violation Per Day

1st through 14th day

$1000

15th through 30th day

$2000

31st day and beyond

$5000

In the event that Defendant submits a proposal for an alternative disposal method to Plaintiffs

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pursuant to Paragraph 14.d. above and the Plaintiffs have not responded within forty-five (45)
days of when the proposal is submitted, stipulated penalties shall not accrue for disposals made
in accordance with the proposed alternative method during the time period between the 45th day
following submission of the proposal to Plaintiffs and the day that Plaintiffs approve or
disapprove the proposed alternative method.
30.

The following stipulated penalties shall accrue per violation per day for each

violation of any the reporting requirements in Section VII of this Consent Decree:
Period of Noncompliance

Penalty Per Violation Per Day

1st through 14th day

$500

15th through 30th day

$1000

31st day and beyond

$2000

31.

The following stipulated penalties shall accrue per violation per day for each

violation of any requirement in this Consent Decree not addressed by Paragraphs (27-30) above:
Period of Noncompliance

Penalty Per Violation Per Day

1st through 14th day

$1000

15th through 30th day

$2000

31st day and beyond

$5000

32.

Defendant shall pay stipulated penalties to the United States and the State within

Swift Consent Decree Page 19.

thirty (30) Days of receiving a written demand by either Plaintiff. Defendant shall pay fifty
percent (50%) of the total stipulated penalty amount due to the United States and fifty percent
(50%) to the State. The Plaintiff making a demand for payment of a stipulated penalty shall
simultaneously send a copy of the demand to the other Plaintiff. In the event that a separate
demand for the same violation(s) is sent to Defendant by both the State and EPA, Defendant shall
only be liable for the total stipulated penalty applicable to each violation in accordance with
Paragraphs 27-31 above.
33.

Stipulated penalties shall continue to accrue as provided in Paragraph 49, during

any Dispute Resolution, but need not be paid until the following:
a.

If the dispute is resolved by agreement or by a decision of the United States

and the State that is not appealed to the Court, Defendant shall pay accrued penalties determined
to be owing, together with Interest, to the United States and State within thirty (30) Days of the
effective date of the agreement or the receipt of the United States and the State’s decision or
order.
b.

If the dispute is appealed to the Court and the United States and the State

prevail in whole or in part, Defendant shall pay all accrued penalties determined by the Court to
be owing, together with Interest, within sixty (60) Days of receiving the Court=s decision or order,
except as provided in subparagraph c, below.
c.

If any Party appeals the District Court’s decision, Defendant shall pay all

accrued penalties determined to be owing, together with interest, within fifteen (15) Days of
receiving the final appellate court decision.
34.

Method of Payment for Stipulated Penalties.

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a.

Stipulated penalties owing to the United States of under $10,000 will be

paid by check and made payable to “U.S. Department of Justice,” referencing DOJ # 90-5-1-109466 and delivered to the U.S. Attorney’s Office for the District of Nebraska 1620 Dodge Street,
Suite 1400, Omaha, Nebraska 68102-1506. Stipulated penalties owing to the United States of
$10,000 or more and stipulated penalties owing to the Applicable State Parties will be paid in the
manner set forth in Section IV (Civil Penalty) of this Consent Decree for each such Party. All
transmittal correspondence shall state that the payment is for stipulated penalties, shall identify
the violations to which the payment relates, and shall include the same identifying information
required by Paragraphs 8-9.
b.

Payment to the State shall be made payable to the Hall County District

Court Clerk and shall be mailed with notice referring to this action, to:
Katherine J. Spohn
Special Counsel to the Attorney General
2115 State Capitol
Lincoln, NE 68508-8920
35.

If Defendant fails to pay stipulated penalties according to the terms of this Consent

Decree, Defendant shall be liable for Interest on such penalties, accruing as of the date payment
became due. Nothing in this Paragraph shall be construed to limit the United States or State from
seeking any remedy otherwise provided by law for Defendant’s failure to pay any stipulated
penalties.
36.

Subject to the provisions of Section XII of this Consent Decree (Effect of

Settlement/Reservation of Rights), the stipulated penalties provided for in this Consent Decree
shall be in addition to any other rights, remedies, or sanctions available to the United States and
the State for Defendant’s violation of this Consent Decree or applicable law. Where a violation

Swift Consent Decree Page 21.

of this Consent Decree is also a violation of the CWA, Defendant shall be allowed a credit, for
any stipulated penalties paid, against any statutory penalties imposed for such violation.
IX. FORCE MAJEURE
37.

Force majeure, for purposes of this Consent Decree, is defined as any event arising

from causes beyond the control of Defendant, of any entity controlled by Defendant, or of
Defendant’s contractors, that delays or prevents the performance of any obligation under this
Consent Decree despite Defendant’s best efforts to fulfill the obligation. The requirement that
Defendant exercise best efforts to fulfill the obligation includes using best efforts to anticipate
any potential force majeure event and best efforts to address the effects of any such event (a) as it
is occurring and (b) after it has occurred to prevent or minimize any resulting delay to the greatest
extent possible. Force Majeure does not include Defendant’s financial inability to perform any
obligation under this Consent Decree.
38.

If any event occurs or has occurred that may delay the performance of any

obligation under this Consent Decree, whether or not caused by a force majeure event, Defendant
shall provide notice orally or by electronic or facsimile transmission to Katherine J. Spohn,
Special Counsel to the Attorney General, 2115 State Capitol, Lincoln, NE 68508-8920 and
Audrey Asher, Senior Counsel, EPA Region 7, 901 N. 5th Street, Kansas, City, KS 66101 within
seventy-two (72) hours of when Defendant first knew that the event might cause a delay. Within
seven (7) Days thereafter, Defendant shall provide in writing to the United States and State an
explanation and description of the reasons for the delay; the anticipated duration of the delay; all
actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the effect of the delay; Defendant=s

Swift Consent Decree Page 22.

rationale for attributing such delay to a force majeure event if it intends to assert such a claim;
and a statement as to whether, in the opinion of Defendant, such event may cause or contribute to
an endangerment to public health, welfare or the environment. Defendant shall include with any
notice all available documentation supporting the claim that the delay was attributable to a force
majeure. Failure to comply with the above requirements shall preclude Defendant from asserting
any claim of force majeure for that event for the period of time of such failure to comply, and for
any additional delay caused by such failure. Defendant shall be deemed to know of any
circumstance of which Defendant, any entity controlled by Defendant, or Defendant=s contractors
knew or reasonably should have known.
39.

If the United States and the State agree that the delay or anticipated delay is

attributable to a force majeure event, the time for performance of the obligations under this
Consent Decree that are affected by the force majeure event will be extended for such time as is
necessary to complete those obligations. An extension of the time for performance of the
obligations affected by the force majeure event shall not, of itself, extend the time for
performance of any other obligation. The United States and the State will notify Defendant in
writing of new date by which the obligation affected by the force majeure event must be
performed.
40.

If the United States and the State do not agree that the delay or anticipated delay

has been or will be caused by a force majeure event, the United States and the State will notify
Defendant in writing of their decision.
41.

If Defendant elects to invoke the dispute resolution procedures set forth in Section

X (Dispute Resolution), it shall do so no later than fifteen (15) Days after receipt of Plaintiffs=

Swift Consent Decree Page 23.

notice. In any such proceeding, Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has been or will be caused by a
force majeure event, that the duration of the delay or the extension sought was or will be
required under the circumstances, that best efforts were exercised to avoid and mitigate the
effects of the delay, and that Defendant complied with the requirements of Paragraph 38 above.
If Defendant carries this burden, the delay at issue shall be deemed not to be a violation by
Defendant of the affected obligation of this Consent Decree identified to EPA and the Court.
X. DISPUTE RESOLUTION
42.

Unless otherwise expressly provided for in this Consent Decree, the dispute

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes
arising under or with respect to this Consent Decree. Defendant’s failure to seek resolution of a
dispute under this Section shall preclude Defendant from raising any such issue as a defense to
an action by the United States to enforce any obligation of Defendant arising under this Decree.
43.

Informal Dispute Resolution. Any dispute subject to Dispute Resolution under

this Consent Decree shall first be the subject of informal negotiations. The dispute shall be
considered to have arisen when Defendant sends the United States and the State a written Notice
of Dispute. Such Notice of Dispute shall state clearly the matter in dispute. The period of
informal negotiations shall not exceed twenty (20) Days from the date the dispute arises, unless
that period is modified by written agreement. If the Parties cannot resolve a dispute by informal
negotiations, then the position advanced by the United States and the State shall be considered
binding unless, within twenty (20) Days after the conclusion of the informal negotiation period,
Defendant invokes formal dispute resolution procedures as set forth below.

Swift Consent Decree Page 24.

44.

Formal Dispute Resolution. Defendant shall invoke formal dispute resolution

procedures, within the time period provided in the preceding Paragraph, by serving on the United
States and the State a written Statement of Position regarding the matter in dispute. Statement of
Position shall include, but need not be limited to, any factual data, analysis, or opinion
supporting Defendant’s position and any supporting documentation relied upon by Defendant.
45.

The United States and the State shall serve their Statement of Position within

forty-five (45) Days of receipt of Defendant=s Statement of Position. The United States and
State’s Statement of Position shall include, but need not be limited to, any factual data, analysis,
or opinion supporting that position and any supporting documentation relied upon by the United
States and State. The United States’ and State’s Statement of Position shall be binding on
Defendant, unless Defendant files a motion for judicial review of the dispute in accordance with
the following Paragraph.
46.

Defendant may seek judicial review of the dispute by filing with the Court and

serving on the United States and State, in accordance with Section XIV of this Consent Decree
(Notices), a motion requesting judicial resolution of the dispute. The motion must be filed
within ten (10) Days of receipt of the United States’ and State’s Statement of Position pursuant
to the preceding Paragraph. The motion shall contain a written statement of Defendant’s
position on the matter in dispute, including any supporting factual data, analysis, opinion, or
documentation, and shall set forth the relief requested and any schedule within which the dispute
must be resolved for orderly implementation of the Consent Decree.
47.

The United States and State shall respond to Defendant’s motion within the time

period allowed by the Local Rules of this Court. Defendant may file a reply memorandum, to

Swift Consent Decree Page 25.

the extent permitted by the Local Rules.
48.

Standard of Review
a.

Disputes Concerning Matters Accorded Record Review. Except as

otherwise provided in this Consent Decree, any dispute brought under Paragraphs 43-47 that
pertains to the adequacy or appropriateness of plans, procedures to implement plans, schedules
or any other items requiring approval by EPA and/or NDEQ under this Consent Decree; the
adequacy of the performance of work undertaken pursuant to this Consent Decree; and all other
disputes that are accorded review on the administrative record under applicable principles of
administrative law, shall be reviewed based solely on the administrative record and Defendant
shall have the burden of proof to demonstrate that its position is correct under applicable
principles of administrative law. In such a dispute, Plaintiff reserves the right to argue that under
applicable principles of administrative law and Defendant has the burden of demonstrating,
based on the administrative record, that the position of the United States and State is arbitrary
and capricious or otherwise not in accordance with law.
b.

Other Disputes. Except as otherwise provided in this Consent Decree, in

any other dispute brought under Paragraphs 43-47, the dispute shall be accorded review under
applicable principles of administrative law.
49.

The invocation of dispute resolution procedures under this Section shall not, by

itself, extend, postpone, or affect in any way any obligation of Defendant under this Consent
Decree, unless and until final resolution of the dispute so provides. Stipulated penalties with
respect to the disputed matter shall continue to accrue from the first Day of noncompliance, but
payment shall be stayed pending resolution of the dispute as provided in Paragraph 33. If

Swift Consent Decree Page 26.

Defendant does not prevail on the disputed issue, stipulated penalties shall be assessed and paid
as provided in Section VIII (Stipulated Penalties).
XI. INFORMATION COLLECTION AND RETENTION
50.

The United States and the State and their representatives, including attorneys,

contractors, and consultants, shall have the right of entry into any facility covered by this
Consent Decree, at all reasonable times, upon presentation of credentials and in complying with
Defendant’s reasonable requirement regarding health and safety issues, to:
a.

monitor the progress of activities required under this Consent Decree;

b.

verify any data or information submitted to the United States or the State

in accordance with the terms of this Consent Decree;
c.

obtain samples and, upon request, splits of any samples taken by

Defendant or its representatives, contractors, or consultants;
d.
e.
51.

obtain documentary evidence, including photographs and similar data; and
assess Defendant’s compliance with this Consent Decree.

Upon request, Defendant shall provide Plaintiffs’ or their authorized

representatives splits of any samples taken by Defendant. Upon request, Plaintiffs shall provide
Defendant splits of any samples they have taken.
52.

Until three (3) years after the termination of this Consent Decree, Defendant shall

retain, and shall instruct its contractors and agents to preserve, all non-identical copies of all
documents, records, or other information (including documents, records, or other information in
electronic form) in its or its contractors’ or agents’ possession or control, or that come into its or
its contractors’ or agents’ possession or control, and that relate in any manner to Defendant’s

Swift Consent Decree Page 27

.

performance of its obligations under this Consent Decree. This information-retention
requirement shall apply regardless of any contrary corporate or institutional policies or
procedures. At any time during this information-retention period, upon request by the United
States or State, Defendant shall provide within a reasonable time copies of any non-privileged
documents, records, or other information required to be maintained under this Paragraph.
53.

At the conclusion of the information-retention period provided in the preceding

Paragraph, Defendant shall notify the United States and the State at least ninety (90) Days prior
to the destruction of any documents, records, or other information subject to the requirements of
the preceding Paragraph and, upon request by the United States or the State, Defendant shall
deliver any such documents, records, or other information to the United States or the State.
Defendant may assert that certain documents, records, or other information is privileged under
the attorney-client privilege or any other privilege recognized by federal law. If Defendant
asserts such a privilege, it shall provide the following: (1) the title of the document, record, or
information; (2) the date of the document, record, or information; (3) the name and title of each
author of the document, record, or information; (4) the name and title of each addressee and
recipient; (5) a description of the subject of the document, record, or information; and (6) the
privilege asserted by Defendant. However, no documents, records, or other information required
to be created or generated pursuant under this Consent Decree shall be withheld on grounds of
privilege
54.

Defendant may also assert that information required to be provided under this

Section is protected as Confidential Business Information (CBI). As to any information that
Defendant produces to EPA that it seek to protect as CBI, Defendant shall follow the procedures

Swift Consent Decree Page 28.

set forth in 40 C.F.R. Part 2. As to any information that Defendant produces to the State that it
seeks to protect as CBI, Defendant shall follow the procedures set forth in Nebraska Public
records Act, 84-712 et seq.; and the Nebraska Administrative Code Title 115 Chapter 4.55.
55.

This Consent Decree in no way limits or affects any right of entry and inspection,

or any right to obtain information, held by the United States or the State pursuant to applicable
federal or state laws, regulations, or permits, nor does it limit any duty or obligation of
Defendant to maintain documents, records, or other information imposed by applicable federal or
state laws, regulations, permits or Defendant’s right to protect those documents, records or other
information.
XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS
56.

This Consent Decree resolves the civil claims of the United States and the State

for the violations alleged in the Complaint filed in this action through the Date of Lodging.
57.

Notwithstanding Paragraph 56 above, the United States and State reserve, and this

Consent Decree is without prejudice to, their right to institute a claim against Defendant with
respect to all matters other than those expressly specified in Paragraph 56 including, but not
limited to, the following:
a.

claims based on a failure of Defendant to meet a requirement of

this Consent Decree;
b.

claims for criminal liability;

c.

claims for natural resource damages based on the violations alleged in the

Complaint; and
d.

claims arising from past, present, or future discharges of pollutants other

Swift Consent Decree Page 29.

than those alleged in the Complaint.
58.

The United States and the State reserve all legal and equitable remedies available

to enforce the provisions of this Consent Decree, except as expressly stated herein. This Consent
Decree shall not be construed to limit the rights of the United States or the State to obtain
penalties or injunctive relief under the Act or implementing regulations, or under other federal or
state laws, regulations, or permit conditions, except as expressly specified in Paragraph 56. The
United States and the State further reserve all legal and equitable remedies to address any
imminent and substantial endangerment to the public health or welfare or the environment
arising at, or posed by, Defendant’s Facility, whether related to the violations addressed in this
Consent Decree or otherwise.
59.

In any subsequent administrative or judicial proceeding initiated by the United

States or the State for injunctive relief, civil penalties, other appropriate relief relating to the
Facility, Defendant shall not assert, and may not maintain, any defense or claim based upon the
principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claimsplitting, or other defenses based upon any contention that the claims raised by the United States
or the State in the subsequent proceeding were or should have been brought in the instant case,
except with respect to claims that have been specifically resolved pursuant to Paragraph 56 of
this Section.
60.

This Consent Decree is not a permit, or a modification of any permit, under any

federal, State, or local laws or regulations. Defendant is responsible for achieving and
maintaining complete compliance with all applicable federal, State, and local laws, regulations,
and permits; and Defendant’s compliance with this Consent Decree or with any action or

Swift Consent Decree Page 30.

omission approved by EPA or NDEQ pursuant to this Consent Decree shall be no defense to any
action commenced pursuant to any such laws, regulations, or permits, except as set forth herein.
The United States and the State do not, by their consent to the entry of this Consent Decree,
warrant or aver in any manner that Defendant=s compliance with any aspect of this Consent
Decree will result in compliance with provisions of the CWA, or with any other provisions of
federal, State, or local laws, regulations, or permits.
61.

This Consent Decree does not limit or affect the rights of Defendant or of the

United States or the State against any third parties, not party to this Consent Decree, nor does it
limit the rights of third parties, not party to this Consent Decree, against Defendant, except as
otherwise provided by law.
62.

This Consent Decree shall not be construed to create rights in, or grant any cause

of action to, any third party not party to this Consent Decree.
XIII. COSTS
63.

The Parties shall bear their own costs of this action, including attorneys’ fees,

except that the United States and the State shall be entitled to collect the costs incurred in any
action necessary to collect any portion of the civil penalty or any stipulated penalties due but not
paid by Defendant.
XIV. NOTICES
64.

Unless otherwise specified herein, whenever notifications, submissions, or

communications are required by this Consent Decree, they shall be made in writing and
addressed to the recipients as set forth below.
Notices and Submissions to the United States: Where this Consent Decree requires that
notices and submissions are to be made to the United States, they shall be made to the United

Swift Consent Decree Page 31.

States Department of Justice and EPA. Where the Consent Decree Requires that Notices and
Submissions shall be made to EPA, they need only be sent to EPA.
To the United States Department of Justice:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Box 7611 Ben Franklin Station
Washington, D.C. 20044-7611
Re: DOJ No. 90-5-1-1-08078/2
To EPA:
Paul T. Marshall, P.E.
Water, Wetlands and Pesticides Division
U.S. Environmental Protection Agency, Region 7
901 North 5th Street
Kansas City, Kansas 66101
Audrey Asher
Senior Counsel
Office of Regional Counsel
U.S. Environmental Protection Agency, Region 7
901 North 5th Street
Kansas City, Kansas 66101
Notices and Submissions to the State of Nebraska: Where this Consent Decree requires that
notices and submissions are to be made to the State of Nebraska, they shall be made to the
Nebraska Attorney General=s Office and NDEQ. Where the Consent Decree Requires that
Notices and Submissions shall be made to NDEQ, they need only be sent to NDEQ.
To the State of Nebraska Attorney General=s Office
Katherine J. Spohn
Special Counsel to the Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
To NDEQ
Steve Goans
Nebraska Department of Environmental Quality
1200 N Street, Suite 400

Swift Consent Decree Page 32.

PO Box 98922
Lincoln, NE 68509-8922
To Defendant:
JBS USA Holdings, Inc.
Attn: Legal Department
1770 Promontory Circle
Greeley, CO 80634
Steven P. Case
McGrath North Mullin & Kratz, PC LLO
1601 Dodge St., Ste. 3700
Omaha, NE 68102
Fax: [phone]
Email: [e-mail]
65.

Any Party may, by written notice to the other Parties, change its designated notice

recipient or notice address provided above.
66.

Notices submitted pursuant to this Section shall be deemed submitted upon

mailing, unless otherwise provided in this Consent Decree or by mutual agreement of the Parties
in writing.
XV. EFFECTIVE DATE
67.

The Effective Date of this Consent Decree shall be the date upon which this

Consent Decree is entered by the Court or a motion to enter the Consent Decree is granted,
whichever occurs first, as recorded on the Court=s docket.
XVI. RETENTION OF JURISDICTION
68.

The Court shall retain jurisdiction over this case until termination of this Consent

Decree, for the purpose of resolving disputes arising under this Decree or entering orders
modifying this Decree, pursuant to Sections XVII below, or effectuating or enforcing
compliance with the terms of this Decree.

Swift Consent Decree Page 33.

XVII. MODIFICATION
69.

The terms of this Consent Decree, including any attached appendices, may be

modified only by a subsequent written agreement signed by all the Parties. Where the
modification constitutes a material change to this Decree, it shall be effective only upon approval
by the Court. Non-material modifications of the Decree may be made only by written agreement
of the Parties, and will become effective upon their filing with the Court.
70.

Any disputes concerning modification of this Decree shall be resolved pursuant to

Section X of this Decree (Dispute Resolution), provided, however, that instead of the burden of
proof provided by Paragraph 48, the Party seeking the modification bears the burden of
demonstrating that it is entitled to the requested modification in accordance with Federal Rule of
Civil Procedure 60(b).
XVIII. TERMINATION
71.

This Consent Decree may be terminated three (3) years after the Date of Entry

provided that Defendant has satisfactorily complied with the requirements of this Consent
Decree. At that time and under that condition Defendant may serve upon the United States and
the State a Request for Termination, stating that Defendant has satisfied those requirements,
together with all necessary supporting documentation.
72.

Following receipt by the United States and the State of Defendant=s Request for

Termination, the Parties shall confer informally concerning the Request and any disagreement
that the Parties may have as to whether Defendant has satisfactorily complied with the
requirements for termination of this Consent Decree. If the United States and the State agree

Swift Consent Decree Page 34

.

that the Decree may be terminated, the Parties shall submit, for the Court’s approval, a joint
stipulation terminating the Decree.
73.

If the United States and State do not agree that the Decree may be terminated,

Defendant may invoke Dispute Resolution under Section X of this Decree. However, Defendant
shall not seek Dispute Resolution of any dispute regarding termination under Section X, until
sixty (60) days after service of its Request for Termination.
XIX. PUBLIC PARTICIPATION
74.

This Consent Decree shall be lodged with the Court for a period of not less than

thirty (30) Days for public notice and comment in accordance with 28 C.F.R. ' 50.7. The United
States reserves the right to withdraw or withhold its consent if the comments regarding the
Consent Decree disclose facts or considerations indicating that the Consent Decree is
inappropriate, improper, or inadequate. Defendant consents to entry of this Consent Decree
without further notice and agrees not to withdraw from or oppose entry of this Consent Decree
by the Court or to challenge any provision of the Decree, unless the United States has notified
Defendant in writing that it no longer supports entry of the Decree.
XX. SIGNATORIES/SERVICE
75.

Each signatory to this Consent Decree certifies that he or she is fully authorized to

enter into the terms and conditions of this Consent Decree and to execute and legally bind the
Party he or she represents to this document.
76.

This Consent Decree may be signed in counterparts, and its validity shall not be

challenged on that basis.

Swift Consent Decree Page 35.

77.

Defendant agrees not to oppose entry of this Consent Decree by the Court or to

challenge any provision of the Consent Decree, unless the United States has notified Defendant
in writing that it no longer supports entry of the Consent Decree.
78.

Defendant shall identify, on the attached signature page, the name and address of

an agent who is authorized to accept service of process by mail on behalf of Defendant with
respect to all matters arising under or relating to this Consent Decree. Defendant agrees to
accept service of process by mail and to waive the formal service requirements set forth in Rule
4 of the Federal Rules of Civil Procedure and any applicable Local Rules of this Court including,
but not limited to, service of a summons. The Parties agree that the Defendant need not file an
answer to the Complaint in this action unless or until this Court expressly declines to enter this
Consent Decree.
XXI. INTEGRATION
79.

This Consent Decree constitutes the final, complete, and exclusive agreement and

understanding among the Parties with respect to the settlement embodied in the Consent Decree
and supersedes all prior agreements and understandings, whether oral or written, concerning the
settlement embodied herein. No other document, nor any representation, inducement,
agreement, understanding, or promise, constitutes any part of this Consent Decree or the
settlement it represents, nor shall it be used in construing the terms of this Consent Decree.
XXIII. FINAL JUDGMENT
80.

Upon approval and entry of this Consent Decree by the Court, this Consent

Decree shall constitute a final judgment of the Court as to the United States, the State and
Defendant. The Clerk of the Court is directed to terminate this case for statistical purposes.

Swift Consent Decree Page 36.

July
29th
Dated and entered this ________ day of _______________, 2011

s/Laurie Smith Camp
_______________________________
UNITED STATES DISTRICT JUDGE
District of Nebraska

Swift Consent Decree Page 37.

FOR PLAINTIFF UNITED STATES OF AMERICA:

Date:

~~
IG CIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division

Date: t~

~S

~1
ELIZABETI~I
-~OEB
Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
Box 7611 Ben Franklin Station
Washington, D.C. 20044
Telephone:[phone]
Fax:[phone]
Elizabeth.Loeb(a,usdoi•~

Swift Consent Decree Page 38.

FOR PLAINTIFF UNITED STATES OF AMERICA (continued):

Date:
E ORAH R.
G
United States Attorney
District of Nebraska

Date:

2~~!

Swift Consent Decree Page 39,

URIE A. LL
LAURIE A. KELLY, AQA. r # 557575
Assistant United States Attorney
District of Nebraska
1620 Dodge Street, Suite 1400
Omaha, Nebraska 68102-1506
Telephone [phone]
Fax [phone]
laurie.kellknusdoi.~ov

FOR PLAINTIFF THE UNITED STATES OF AMERICA (continued):

Date:

6 Z ~~~
BROOKS
Regional Administrator
U.S. Environmental Protection Agency, Region 7

Date:

~ 020/
AUDREY SHER
Senior Counsel
U.S. Environmental Protection Agency, Region 7
901 N. 5~' Street
Kansas City, Kansas 66101

Swift Consent Decree Page 40.

FOR THE PLAINTIFF UNITED STATES OF AMERICA (continued):

Date:

~
C
H A GILES
Ass Stan Administrator
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Wa ington, D.C. 20460

Date:

~ 3 ~
AD
M.KUSHNER
Director
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

Date:

~ "' L~

~~
ARK PO LIN
Director
Water Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

Date:

v S I~3 I f~

Swift Consent Decree Page 41.

f.~~l~t,~.~ ~~--~,~,d'.~-~ ~li(t^~-~^
CATS TIERNEY
`
Water Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

FOR THE STATE OF NEBRASKA:

Date:

~f ~
f
KA ERINE J. SPO
Spe al Counsel to the Attorney General
Office ofthe Nebraska Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
Nebraska Bar Number 22979
[phone]
Email: [e-mail]

Swift Consent Decree Page 42.

FOR DEFENDANT SWIFT BEEF COMPANY:

Date:J (~ ~
Bill Rupp, Head of Beef an ~-~des
Swift Beef Company
1770 Promontory Circle
Greeley, CO 80634
970-506-8000
[e-mail]
Agent Authorized to Accept Service on Behalf of Swift Beef Company Relating to this Consent
Decree:
Nicholas White
Swift Beef Company
1770 Promontory Circle
Greeley, Colorado 80634

Swift Consent Decree Page 4~