United States of America v. Stacher Properties LLC
Filing
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CONSENT DECREE granting 9 Unopposed MOTION to Enter Consent Decree. Signed by Honorable Joseph F. Anderson, Jr. on 03/03/2016.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
SATCHER PROPERTIES, LLC,
Defendant.
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C/A No. 3:16-cv-112-JFA
CONSENT DECREE
WHEREAS, the Plaintiff, the United States of America (“United States”), at the request of
the Secretary of the United States Department of the Army, acting through the United States Army
Corps of Engineers (“Corps”), has filed a Complaint in this action concurrently with the lodging
of this Consent Decree, alleging that Defendant, Satcher Properties, LLC (“Defendant”), violated
Clean Water Act (“CWA”) section 301(a) and 404, 33 U.S.C. §§ 1311(a), 1344;
WHEREAS, the Complaint alleges that Defendant violated CWA section 301(a) by
discharging dredged or fill material into waters of the United States in Lexington County, South
Carolina, without authorization by the United States Army Corps of Engineers;
WHEREAS, the Complaint alleges that Defendant violated CWA section 301(a) and 404,
33 U.S.C. §§ 1311(a), 1344, in not obtaining a permit from the United States Army Corps of
Engineers prior to discharging dredged or fill material into waters of the United States in
Lexington, South Carolina;
WHEREAS, the Complaint requests that the Court award injunctive relief and civil
penalties;
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WHEREAS, Defendant does not admit any liability to the United States arising out of the
transactions or occurrences alleged in the Complaint;
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 United States and Defendant, and that this Consent Decree is fair, reasonable, and in
the public interest.
THEREFORE, before the taking of any testimony upon the pleadings, without the
adjudication or admission of any issue of fact or law except as provided in Section I of this Consent
Decree, and upon consent of the Parties hereto by their authorized representatives, it is hereby
ORDERED, ADJUDGED and DECREED as follows:
I. JURISDICTION, VENUE, AND SUFFICIENCY OF COMPLAINT
1.
This Court has jurisdiction over the subject matter of these actions and over the
Parties pursuant to 28 U.S.C. §§ 1331, 1345, and CWA section 309(b), 33 U.S.C. § 1319(b)
2.
Venue lies in the District of South Carolina pursuant to CWA section 309(b), 33
U.S.C. § 1319(b), and 28 U.S.C. §§ 1391(b) and (c).
3.
For purposes of this Consent Decree, and any action to enforce this Consent Decree,
Defendant consents to the Court’s jurisdiction over this Consent Decree, over any such action to
enforce this Consent Decree, and over Defendant, and Defendant consents to venue in this judicial
district.
4.
For purposes of this Consent Decree, and any action to enforce this Consent Decree,
the Parties agree, and the Court finds, that the Complaint states claims upon which relief can be
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granted pursuant to CWA sections 301(a), 309(d), and 404 of the CWA, 33 U.S.C.
§§ 1311(a), 1319(d), and 1344.
II. APPLICABILITY
5.
This Consent Decree applies to and is binding upon the United States, and upon
Defendant and any successors, assigns, or other entities or persons otherwise bound by law
whether or not such entity or person has notice of this Consent Decree.
6.
Defendant shall provide a copy of this Consent Decree to all officers, employees,
and agents whose duties might reasonably include compliance with any provision of this Consent
Decree, including any contractor or consultant retained to perform any work. Defendant shall
condition any such contract upon performance of any work in conformity with the terms of this
Consent Decree.
7.
In any action to enforce this Consent Decree, Defendant shall not raise as a defense
the failure by any officers, directors, employees, agents, contractors, or consultants to take any
actions necessary to comply with this Consent Decree.
8.
Defendant represents that, on or before the execution of this Consent Decree, he
has obtained all interests or rights necessary to perform any work in Boggy Branch and wetlands
adjacent to Boggy Branch (hereinafter referred to as “Boggy Branch”) in which the violation is
alleged to have occurred; to monitor and maintain relevant portions of the Boggy Branch; to submit
reports regarding the condition of Boggy Branch; and to provide the United States with a right of
entry as set forth in Section VII of this Consent Decree. No subsequent transfer by Defendant of
those interests or rights shall alter or relieve Defendant of the obligations in this Consent Decree
to perform any work in Boggy Branch; to monitor and maintain relevant portions of Boggy Branch;
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to submit reports regarding the condition of Boggy Branch; and to provide the United States with
a right of entry as set forth in Section VII of this Consent Decree. At least thirty (30) Days prior
to any transfer of those interests or rights, the transferring Defendant shall provide written notice
of the prospective transfer, together with a copy of the proposed written agreement, to the United
States at the addresses specified in Section XI of this Consent Decree. As a condition of any such
transfer, the transferring Defendant shall reserve all rights necessary to comply with this Consent
Decree. In the event of such transfer, the transferring Defendant shall provide a true copy of this
Consent Decree to the transferee(s) and shall simultaneously notify the United States at the
addresses specified in Section XI of this Consent Decree that such notice has been given. Any
transfer by Defendant of any of Defendant’s interests or rights in the Site (as defined herein below),
or any other site relevant to any work in Boggy Branch without complying with this Paragraph
constitutes a violation of this Consent Decree.
III. DEFINITIONS
9.
Terms used in this Consent Decree that are defined in the CWA or in regulations
promulgated pursuant to the CWA shall have the meanings assigned to them in the statute or such
regulations, unless otherwise provided in this Consent Decree.
10.
Whenever the terms set forth below are used in this Consent Decree, the definitions
in the following subparagraphs shall apply.
a.
“Unauthorized Work” shall include all work performed by the Defendant directly or
indirectly for which the United States has alleged a violation of the CWA, including the following:
Impact Site 1: Wetland Fill- Approximately 2.75 acres of wetlands, waters of the United
States, were mechanized land cleared and filled. Tributaries 1A and 1B, also waters of the United
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States, within the wetland were piped approximately 1,139 linear feet. These tributaries flow into
an impoundment of the tributary named Boggy Branch.
All vegetation was removed and the
area completely filled.
Impact Site 2: Expansion of Impoundment- Construction resulting in 2.32 acres of
wetlands abutting Boggy Branch being filled, and impacts to two tributaries, 2A and 2B, all of
which are waters of the United States: The tributary impacts consist of 341 linear feet of Tributary
2A, which is the tributary named “Boggy Branch,” and 220 linear feet of Tributary 2B, an unnamed
tributary that flows into the tributary named “Boggy Branch.”
Impact Site 3: Embankment Modification- The embankment was extended from 295
linear feet to 470 linear feet, resulting in an impoundment being expanded from 2 acres to
approximately 4 acres. The embankment modification and resultant impacts to the impoundment
included impacts to uplands not subject to the Clean Water Act.
Impact Site 4: Road Modification- An existing 175 linear foot road was expanded
(widened) resulting in fill placement into waters of the United States along the entire
length. Impacts are estimated to be less than .10 acres of wetland fill.
b.
“Boggy Branch,” a water of the United States, shall mean the body of water referred
to above as Tributaries 1A, 1B, 2A, and 2B, and any and all wetlands adjacent thereto, that flows
into Twelve Mile Creek which flows into Saluda River, a Traditional Navigable Water (TNW), of
which all are waters of the United States; the approximate location of impacted portions of Boggy
Branch is outlined in red on Appendix A of this Consent Decree. Where the Corps is referencing
the named Tributary “Boggy Branch” in its individual capacity, it will so specify.
c.
“Site” or “Satcher Property” shall mean the Defendant’s real property generally
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located south of Wing Hill Drive, between Storey Road and Branham View Road, and outlined in
yellow on Appendix A of this Consent Decree.
d.
“CWA” shall mean the Clean Water Act, 33 U.S.C. §§ 1251-1387.
e.
“Complaint” shall mean the Complaint filed by the United States in this action.
f.
“Consent Decree” shall mean this Consent Decree; all Appendices attached hereto
and listed in Section XX of this Consent Decree; all Deliverables approved by the Corps in
accordance with Section XIV of this Consent Decree; and all modifications made effective in
accordance with Section XV of this Consent Decree.
g.
“Corps” shall mean the United States Army Corps of Engineers and any of its
successor departments or agencies.
h.
“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
working day.
i.
“Defendant” shall mean Satcher Properties, LLC.
j.
“Deliverable” shall mean any work plan, engineering reports and plans, monitoring
and maintenance plan, monitoring and maintenance report, mitigation credit purchase proposal, or
other document that is submitted to the Corps for its review and approval pursuant to Section XIV
of this Consent Decree, including but not limited to the Jurisdictional Determination, the
Restoration Plan, to include a Mitigation Plan and Monitoring and Maintenance Protocol, and
Environmental Compliance Promotion Project.
k.
“Effective Date” shall mean the date on which this Consent Decree is entered by
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the Court.
l.
“Paragraph” shall mean a portion of this Consent Decree identified by an Arabic
numeral.
m.
“Parties” shall mean the United States and Defendant.
n.
“Section” shall mean, except when citing a provision of the CWA or regulations, a
portion of this Consent Decree identified by a Roman numeral.
o.
“United States” shall mean the United States of America, acting on behalf of the
Corps.
IV. GENERAL PROVISIONS
11.
This Consent Decree shall constitute a complete and final settlement of all civil
claims for injunctive relief and civil penalties alleged in the Complaint, subject to Defendant’s
compliance with this Consent Decree.
12.
It is the express purpose of the Parties in entering this Consent Decree to further the
objectives set forth in CWA Section 101, 33 U.S.C. § 1251.
13.
Except as provided in Paragraph 23(f) herein, this Consent Decree is not and shall
not be interpreted to be a permit or modification of any existing permit issued pursuant to any
federal, state, or local laws or regulations. This Consent Decree shall not limit the ability of the
Corps to issue, modify, suspend, revoke or deny any individual permit or any nationwide or
regional general permit, nor shall this Consent Decree limit the United States Environmental
Protection Agency’s ability to exercise its authority pursuant to CWA section 404(c), 33 U.S.C.
§ 1344(c). The Corps will consult with the United States Environmental Protection Agency and
other federal and state agencies, as appropriate, in evaluating any deliverable or the after-the-fact
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(ATF) application submitted to the Corps under this Consent Decree.
14.
This Consent Decree in no way affects or relieves Defendant of the responsibility
to comply with any applicable federal, state, or local law, regulation or permit.
15.
This Consent Decree in no way affects the rights of the United States as against any
person not a party to this Consent Decree.
16.
The United States reserves any and all legal and equitable remedies available to
enforce this Consent Decree and applicable law. The United States further reserves all legal and
equitable remedies available to address any imminent and substantial endangerment to public
health or welfare or the environment, whether related to the alleged violations addressed in this
Consent Decree or otherwise. This Consent Decree shall not be construed to limit the rights of
the United States to obtain penalties or injunctive relief under the CWA or its implementing
regulations, or under other federal laws, regulations, or permit conditions, except as expressly
specified in Paragraph 11 of this Section of this Consent Decree. In any subsequent proceeding
initiated by the United States, Defendant shall not assert, and may not maintain, any defense or
claim based on the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim
splitting, or other defenses based on any contention that the claims raised by the United States in
the subsequent proceeding were or should have been brought in the instant case, except with
respect to claims resolved by this Consent Decree as specified in Paragraph 11 of this Section of
this Consent Decree.
17.
Except as provided in Section I of this Consent Decree, nothing in this Consent
Decree shall constitute an admission of fact or law by any party.
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V. SPECIFIC PROVISIONS
18.
Within thirty (30) Days of the Effective Date of this Consent Decree, Defendant
shall pay a civil penalty to the United States in the amount of $2,500 dollars.
19.
Payment to the United States shall be made in accordance with the written
instructions to be provided to Defendant by the United States Attorney’s Office. Upon payment,
Defendant shall provide written notice to the United States at the addresses specified in Section
XI of this Consent Decree. Defendant shall not deduct any penalties paid under this Consent
Decree pursuant to this Section or Section X in calculating any federal income tax owed.
20.
Environmental Compliance Promotion Project. The Defendant agrees to work
with the United States Attorney's Office (USAO) and the Corps on the planning and development
of a proposal for an Environmental Compliance Promotion Project (“Compliance Project”)
designed to provide training and technical support to the regulated community with a goal of
reducing violations of Section 404 of the Clean Water Act. It is the intent of the Parties that the
Compliance Project will be staged in several locations on multiple days as determined by the COE
and USAO in consultation with the Defendant and outlined in the Compliance Project Plan.
Compliance Project Plan is due 90 days from the entry of this Consent Decree.
The
The Defendant
agrees that whenever Defendant publicizes the Compliance Project, the publication shall include
a statement that the Project is being undertaken as part of the settlement of this enforcement action.
If Defendant fails to complete the Compliance Project as outlined in the Compliance Project Plan,
then the Defendant shall pay stipulated penalties for the failure to complete the Compliance
Project.
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The Defendant agrees to pay for costs associated with the Compliance Project up to and
including $7,500.
The Defendant has no obligation for costs associated with the Compliance
Project in excess of $7,500.
The designated funds will be expended solely for the Compliance
Project and will include fees associated with advertising, printing, indexing, binding and other
reasonable conference costs.
The Defendant will account for costs expended under this
paragraph by submitting to the United States a report certified by an appropriate corporate official
evidencing expenditure.
If the Defendant desires to utilize its own employees, consultants, and
equipment to perform any of the tasks associated with the development of the educational program,
to obtain credit for the expenditure, the Defendant must submit to the United States and obtain
approval from the United States for time and expense records. Any costs claimed by Defendant
under this paragraph shall relate directly to the educational program and not to the restoration or
after-the-fact permit.
INJUNCTIVE RELIEF
21.
Prohibitory Injunction:
Except as in accordance with this Consent Decree,
Defendant is enjoined from discharging any pollutant into Boggy Branch, any segment of Boggy
Branch, or any body of water that contributes its flow to Boggy Branch or any segment of Boggy
Branch, unless such discharge complies with the provisions of the CWA and its implementing
regulations.
22.
Mandatory Injunction:
Except as provided in Paragraph 24 of this Consent
Decree, Defendant shall restore the Site in accordance with Paragraph 23 of this Consent Decree.
The Defendant, through the Defendant’s representatives and/or attorneys, shall attend an in-person
meeting with the Corps to discuss the specifics that will be required for expected submittals. The
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meeting shall occur at a time that is mutually agreeable to all parties but within fifteen 15 days of
the Effective Date of this Consent Decree.
23. Restoration of Site:
a.
Within ninety (90) days of the effective date of this Consent Decree, Defendant
shall submit to the Corps, for its review as a Deliverable, a comprehensive Restoration Plan to
restore all areas of the Site, directly or indirectly affected by Defendant’s Unauthorized Work.
b.
The Restoration Plan shall provide for the complete removal of any and all fill or
dredge material discharged or placed for or associated with or resulting from the Unauthorized
Work, including deadlines for such removal.
c.
The Restoration Plan shall provide for the removal of fill material and pipes
associated with the work. After the fill and pipes have been removed, the areas will be planted
with native vegetation at the Site and areas off-Site that have been impacted directly or indirectly
by the Unauthorized Work, including deadlines for such planting.
d.
The Restoration Plan shall include a Monitoring and Maintenance Protocol with
specific performance metrics to measure success, including deadlines for the submission of
monitoring reports.
e.
The Restoration Plan shall include a Mitigation Plan to compensate for the loss of
waters of the United States, as well as any permanent impacts to Boggy Branch resulting directly
or indirectly from the Unauthorized Work. The Mitigation Plan shall be consistent with the
Corps’ 2008 Final Compensatory Mitigation Rule and the most current version of the Charleston
District’s “Guidelines for Preparing a Compensatory Mitigation Plan” and other applicable
regulations. The Mitigation Plan shall specify the amount and number of credits that Defendant
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shall securepurchase from an approved mitigation bank or banks, including a deadline for such
purchase. After the purchase of any mitigation credits, Defendant shall promptly provide a copy
of the purchase receipt to the United States at the addresses specified in Section XI of this Consent
Decree.
f.
The Parties acknowledge that, upon entry of this Consent Decree, Nationwide
Permit 32, found at 77 Fed. Reg. 10,184 (Feb. 21,2012), will authorize, subject to the conditions
provided in the Nationwide Permit and this Consent Decree, the work done under the Restoration
Plan provided for in Paragraph 23 and approved under this Consent Decree. This Subparagraph
f specifically does not apply to any work outlined in or performed under any ATF application
submitted under Paragraph 24 below.
24.
After-the-Fact Permit Application:
a.
The requirements of Paragraph 23 of this Consent Decree shall be suspended with
regard to any of Sites 1 through 4 as defined herein under “Unauthorized Work” if Defendant
submits to the Corps, within ninety (90) days of the effective date of this Consent Decree, a
complete application for an after-the-fact or ATF CWA section 404 permit (which shall not be
regarded as a Deliverable).
b.
The suspension of the requirements of Paragraph 23 shall continue throughout the
Corps’ decision-making process on the ATF permit application only with regard to any of the
individual Sites 1 through 4 for which Defendant submits an ATF CWA section 404 permit
application. In the event that the Corps denies the ATF permit application on any of the individual
Sites 1 through 4, the suspension shall lift automatically on the eleventh (11th) day following the
Corps’ final decision to deny the ATF permit application in whole or part. In the event that the
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Corps proffers an ATF permit to Defendant for any of the individual Sites 1 through 4, the
suspension shall continue indefinitely with regard to the individual Sites 1 through 4 approved for
an ATF permit provided that Defendant fully complies with the ATF permit as proffered.
c.
Defendant shall cooperate with the Corps with respect to any request for
information or any other reasonable request made by the Corps through the permit process.
d.
The ATF permit application shall include a Mitigation Plan to compensate for the
loss of waters of the United States as to each of the Sites 1 through 4 addressed in the ATF permit
application, as well as any permanent impacts to the Tributary resulting directly or indirectly from
the Unauthorized Work addressed in the ATF permit application. The Mitigation Plan shall be
consistent with the Corps’ 2008 Final Compensatory Mitigation Rule and the most current version
of the Charleston District’s “Guidelines for Preparing a Compensatory Mitigation Plan” and other
applicable regulations. The Mitigation Plan shall specify the amount and number of credits that
Defendant shall purchase from an approved mitigation bank or banks, including a deadline for
such purchase. In the event that the Corps issues an ATF permit requiring the purchase of
mitigation credits, Defendant shall, promptly after the purchase of any mitigation credits, provide
a copy of the purchase receipt to the United States at the addresses specified in Section XI of this
Consent Decree.
g.
Recognizing that the ATF permit application is not a Deliverable under the terms
of the Consent Decree, Defendant shall have the remedies, rights, and due process with regard to
the ATF permit application to which the Defendant would be entitled absent this Consent Decree,
but shall not have any additional rights, remedies, or due process with regard to the ATF permit
application under this Consent Decree The intent of this paragraph is to preserve for the Parties
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their pre-existing administrative and judicial review rights associated with the ATF permit
application, and to except the ATF permit process from the Dispute Resolution provision of this
Consent Decree.
h.
This Consent Decree does not in any way limit the Corps’ exercise of its lawful
authority in processing the ATF permit application and the ATF permit application is not subject
to Dispute Resolution under this Consent Decree.
25.
In evaluating any Deliverable or ATF permit application submitted to the Corps
under this Consent Decree, the Corps will consult with the United States Environmental Protection
Agency and other federal and state government agencies, as appropriate.
VI. REPORTS
26.
All reports submitted by Defendant pursuant to this Consent Decree, including any
Deliverable approved by the Corps, shall be submitted to the Corps at the address provided in
Section XI, unless otherwise specified.
27.
Each report submitted pursuant to this Consent Decree shall be signed by
Defendant or his authorized representative, and it shall 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 upon personal knowledge or 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.”
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28.
The reporting requirements of this Consent Decree do not relieve Defendant of any
reporting obligations required by the CWA or its implementing regulations, or by any other
federal, state, or local law, regulation, permit, or other requirement.
29.
Any information provided pursuant to this Consent Decree may be used by the
United States in any proceeding to enforce the provisions of this Consent Decree and as otherwise
permitted by law.
VII. RETENTION OF RECORDS AND RIGHT OF ENTRY
30.
Until three (3) years after the termination of this Consent Decree pursuant to
Section XVI, Defendant shall retain, and shall instruct his contractors, consultants, and other
agents to preserve, all non-identical copies of all documents, records, or other information
(including documents, records, or other information in electronic form) in his or his contractors’
or other agents’ possession or control, or that come into his contractors’ or other agents’ possession
or control, and that demonstrate Defendant’s performance of his 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, Defendant shall provide copies of any documents, records, or other
information required to be maintained under this Paragraph.
31.
The United States and its representatives, including attorneys, contractors, and
consultants, shall have the right of entry into the Site, upon presentation of credentials, to assess
Defendant’s compliance with this Consent Decree and to inspect and review any records required
to be kept under this Consent Decree and/or the CWA. Specifically, the United States may:
a.
monitor work required by this Consent Decree;
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b.
verify any data or information submitted to the United States in accordance with
the terms of this Consent Decree;
c.
obtain samples and, upon request, splits of any samples taken by Defendant,
including his representatives, contractors, or consultants; and
d.
obtain evidence, including documents, photographs, GPS, flow measurement, and
other similar data.
e.
Upon request, the United States shall, within a reasonable time, produce and permit
Defendant to inspect, copy, test, or sample any non-privileged documents, photographs,
measurements, or other data collected as a result of such visit.
32.
This Consent Decree in no way limits or affects any other rights of entry and
inspection, or any rights to obtain information, held by the United States, including the Corps,
pursuant to applicable federal laws, regulations, or permits, nor does it limit or affect any duty or
obligation of Defendant to maintain documents, records, or other information imposed by
applicable federal or state laws, regulations, or permits.
VIII. DISPUTE RESOLUTION
33.
Unless otherwise expressly provided for in this Consent Decree, the dispute
resolution procedures of this Section (“Dispute Resolution”) shall be the exclusive mechanism for
Defendant to resolve all disputes arising under or with respect to this Consent Decree.
34.
Any dispute Defendant has that is subject to Dispute Resolution shall first be the
subject of informal negotiations. The dispute shall be considered to have arisen when Defendant
sends the United States a written Notice of Dispute, pursuant to Section XI. Such Notice of
Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not
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exceed twenty-one (21) days from the date the dispute arises, unless that period is modified in
writing by the United States. If the Parties cannot resolve a dispute by informal negotiations, then
the position advanced by the United States shall be considered binding unless, within thirty (30)
days after the conclusion of the informal negotiation period, Defendant files with the Court a
motion for judicial resolution of the dispute.
35.
In any dispute submitted to the Court for resolution pursuant to this Section,
Defendant shall have the burden of proving by a preponderance of evidence that the United States’
position is not in accordance with the objectives of this Consent Decree and the CWA, and that
Defendant’s position will achieve compliance with the terms of this Consent Decree and the CWA.
36.
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. Stipulated penalties and interest, if applicable to the disputed matter, shall continue to
accrue from the first day of violation, but payment shall be stayed pending resolution of the dispute
as provided in Section X. If Defendant does not prevail on the disputed issue, stipulated penalties,
and interest, if applicable, shall be assessed and paid as provided in Section X.
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 person or entity controlled by
Defendant, or of Defendant’s contractors or consultants 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
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such event (a) as it is occurring and (b) after it has occurred to prevent or minimize any resulting
delay to the extent possible. “Force majeure” does not include 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 to the United States, as specified in Section XI, within 72 hours of when
Defendant first knew or should have known that the event might cause a delay. Within three (3)
days after the initial notice, Defendant shall provide in writing to the United States, in accordance
with Section XI, 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 rationale for attributing such delay to a force majeure event if the Defendant
intends to assert such a defense; 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.
The United States may, in its unreviewable discretion, extend the time within which notice must
be given. No such extension shall be effective unless it is in writing. Defendant shall include
with any written notice required by this Section all available documentation supporting the claim
that the delay was attributable to a force majeure event and such notice shall be signed and certified
as set forth in Paragraph 27 of this Consent Decree. Failure to comply with the requirements of
this Section shall preclude Defendant from asserting any defense of force majeure for that event,
and for any additional delay caused by such failure. Defendant shall be deemed to know of any
circumstance of which Defendant, any person or entity controlled by Defendant, including
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Defendant’s contractors and consultants, knew or should have known.
39.
If the United States agrees 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 may be extended by the United States 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.
40.
If the United States does not agree that the delay or anticipated delay has been or
will be caused by a force majeure event, or does not agree to the extension of time sought by
Defendant, then the United States’ position shall be binding, unless Defendant invokes Dispute
Resolution under Section VIII of this Consent Decree.
41.
If Defendant invokes Dispute Resolution under Section VIII of this Consent
Decree, Defendant shall have the burden of demonstrating that the delay or anticipated delay has
been or will be caused by a force majeure event; the number of days of delay or anticipated delay
that was or will be caused by such force majeure event; that the duration of the delay or the
extension sought was or will be warranted under the circumstances; that Defendant could not have
foreseen and prevented such delay; that Defendant, including his contractors and consultants,
exercised best efforts to prevent, avoid, minimize and mitigate the delay and its effects; and that
Defendant complied with the requirements of this Section.
X. STIPULATED PENALTIES
42.
Defendant shall be liable for stipulated penalties to the United States for violations
of this Consent Decree in accordance with this Section, unless excused under Section IX (Force
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Majeure). A violation includes failing to perform any obligation required by the terms of this
Consent Decree, including the terms of any Deliverable or modification approved under this
Consent Decree as well as the obligation to timely submit a complete ATF application, within the
specified time schedules established by or approved under this Consent Decree.
43.
Stipulated penalties shall accrue for violations of this Consent Decree in the amount
of two hundred dollars ($200) per day for each violation.
44.
Subject to a force majeure event as set forth in Section IX of this Consent Decree,
stipulated penalties under this Section shall begin to accrue on the day a violation occurs and shall
continue to accrue until the violation ceases. Stipulated penalties shall accrue simultaneously for
separate violations of this Consent Decree.
45.
Except as provided in Paragraphs 46 and 47 below, Defendant shall pay any
stipulated penalty within thirty (30) days of receiving the United States’ written demand.
Defendant shall make any such payment in accordance with written instructions to be provided by
the United States.
Upon any such payment, Defendant shall provide written notice, at the
addresses specified in Section XI of this Consent Decree.
46.
The United States may, in the unreviewable exercise of its discretion, reduce or
waive stipulated penalties that have accrued under this Consent Decree.
47.
Any disputes concerning the amount of stipulated penalties or the underlying
violation that gives rise to the assessment of stipulated penalties are subject to the Dispute
Resolution provisions of Section VIII. Stipulated penalties and any applicable interest shall
continue to accrue as provided in Paragraph 44, but need not be paid until the following:
a.
If the dispute is resolved by agreement between the Parties, Defendant shall pay the
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amount due under such agreement, together with any applicable interest, to the United States
within thirty (30) days of the effective date of the agreement.
b.
If the dispute is taken to the Court, Defendant shall pay all accrued penalties
determined by the Court to be owing, together with any applicable interest, within thirty (30) days
of receiving the Court’s decision, except as provided in subparagraph c, below.
c.
If any party appeals the Court’s decision to the Court of Appeals (or beyond),
Defendant shall pay all accrued penalties determined to be owing, together with any applicable
interest, within fifteen (15) days of receiving the final appellate decision.
48.
If Defendant fails to pay stipulated penalties in accordance with this Consent
Decree, Defendant shall be liable for interest on such penalties, as provided for in 28 U.S.C.
§ 1961, accruing as of the date payment became due. The interest shall be computed daily from
the time the payment is due until the date the payment is made. The interest shall also be
compounded annually. Nothing in this Paragraph shall be construed to limit the United States
from seeking any remedy otherwise provided by law for Defendant’s failure to pay any stipulated
penalties.
49.
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 for Defendant’s violation of
this Consent Decree or applicable law.
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XI. ADDRESSES
50.
All notices and communications required under this Consent Decree shall be made
to the Parties through each of the following persons and addresses:
a.
TO THE UNITED STATES:
i.
TO THE UNITED STATES ATTORNEY:
United States Attorney
1441 Main Street
Suite 500
Columbia, SC 29201
(803) 929-3000 [ph]
Attn: Beth Drake
Beth.Drake@usdoj.gov
iii.
TO CORPS:
U.S. Army Corps of Engineers
Attn: Brice McKoy
1835 Assembly Street, Room 865 B1
Columbia SC, 29201
(803) 253-3994 [ph]
Peter.B.McKoy@usace.army.mil
b.
TO DEFENDANT:
i.
51.
Tommy Lavender, Esq.
Joan Hartley, Esq.
Nexsen Pruitt, LLC
P.O. Drawer 2426
Columbia, SC 29202-2426
(803)540-2129
jhartley@nexsenpruet.com
tlavender@nexsenpruet.com
Any party may, by written notice to the other party, change its designated notice
recipient or notice address provided above.
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52.
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.
XII. COSTS OF SUIT
53.
Each party to this Consent Decree shall bear its own costs and attorneys’ fees in
this action. Should Defendant subsequently be determined by the Court to have violated this
Consent Decree, Defendant shall be liable for any costs or attorney’s fees incurred by the United
States in any action against Defendant for noncompliance with or enforcement of this Consent
Decree.
XIII. PUBLIC COMMENT
54.
The Parties acknowledge that after the lodging and before the entry of this Consent
Decree, final approval by the United States is subject to the requirements of 28 C.F.R. Part 50.7,
which provides for public notice and comment. The United States reserves the right to withhold
or withdraw its consent to the entry of this Consent Decree if the comments received disclose facts
or considerations which lead the United States to conclude that the proposed judgment is
inappropriate, improper, or inadequate. Defendant agrees not to withdraw from, oppose entry of,
or to challenge any provision of this Consent Decree, unless the United States has notified
Defendant in writing that it no longer supports entry of the Consent Decree. Defendant consents
to entry of this Consent Decree in its present form without further notice.
XIV. APPROVAL OF DELIVERABLES
55.
After Defendant submits any Deliverable, the Corps shall in writing:
(a)approve
the Deliverable; (b) approve the Deliverable upon specified conditions; (c)approve part of the
Deliverable and disapprove the remainder; or (d)disapprove the Deliverable.
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56.
If the Deliverable is approved pursuant to Paragraph 55(a) above, Defendant shall
take all actions required by the Deliverable, in accordance with the schedules and requirements of
the Deliverable, as approved.
If the Deliverable is conditionally approved or approved only in
part, pursuant to Paragraph 55(b) or (c), Defendant shall, upon written direction from the Corps,
take all actions required by the approved Deliverable that the Corps determines are technically
severable from any disapproved portions, subject to Defendant’s right to dispute only the specified
conditions or the disapproved portions, under Section VIII of this Consent Decree (Dispute
Resolution).
58.
If the Deliverable is disapproved in whole or in part pursuant to Paragraph 55(c)
or (d), Defendant shall, within twenty (20) days, or such other time as the Parties agree to in
writing, correct all deficiencies and resubmit the Deliverable, or disapproved portion thereof, for
approval, in accordance with the preceding Paragraphs in this Section of the Consent Decree.
If
the resubmitted Deliverable is approved in whole or in part, Defendant shall proceed in accordance
with Paragraph 56 above.
If the resubmitted Deliverable is disapproved in whole or in part, the
Corps may again require Defendant to correct any deficiencies in accordance with the preceding
Paragraphs in this Section of the Consent Decree, or the Corps may itself correct any deficiencies,
subject to Defendant’s right to invoke Dispute Resolution under Section VIII of this Consent
Decree and the right of the Corps to seek stipulated penalties under Section X of this Consent
Decree.
Any Corps-corrected Deliverable shall be incorporated into and become enforceable
under this Consent Decree and shall be implemented by Defendant according to the terms of such
Deliverable, subject to Defendant’s right to invoke Dispute Resolution under Section VIII of this
Consent Decree.
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XV. MODIFICATION
59.
The terms of this Consent Decree may be modified only by a subsequent written
agreement signed by the Parties. In addition, if the modification constitutes a material change to
this Consent Decree, it shall be effective only upon approval by the Court. Non-material changes
to this Consent Decree may be made by written agreement of the Parties without Court approval.
XVI. TERMINATION
60.
After Defendant has completed the requirements of Section V of this Consent
Decree; paid any accrued stipulated penalties not waived or reduced by the United States pursuant
to Paragraph 46 of this Consent Decree; and submitted all reports due pursuant to Section VI of this
Consent Decree, Defendant may submit to the United States, at the Addresses specified in Section
XI of this Consent Decree, a Request for Termination, stating that Defendant has satisfied those
requirements, together with supporting documentation.
61.
Following receipt by the United States of Defendant’s Request for Termination, the
Parties may 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 agrees that the Consent Decree may be terminated, the
United States shall submit, for the Court’s approval, a joint stipulation terminating the Consent
Decree.
62.
If the United States does not agree that the Consent Decree may be terminated,
Defendant may invoke Dispute Resolution under Section VIII of this Consent Decree. However,
Defendant shall not seek Dispute Resolution of any dispute regarding termination, under Section
VIII of this Consent Decree, until ninety (90) days after service of its Request for Termination.
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63.
Termination of this Consent Decree does not extinguish the prohibitory injunction
set forth in Paragraph 21 of this Consent Decree.
64.
Termination of this Consent Decree does not discharge Defendant of his obligations
set forth in Section VII of this Consent Decree.
XVII. SIGNATORIES/SERVICE
65.
Each undersigned representative of Defendant and the United States Attorney’s
Office 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.
66.
This Consent Decree may be signed in counterparts, such counterpart signature
pages shall be given full force and effect, and its validity shall not be challenged on that basis.
Defendant agrees to accept service of process by mail with respect to all matters arising under or
relating to this Consent Decree and to waive the formal service requirements set forth in the Federal
Rules of Civil Procedure and any applicable Local Rules of this Court including, but not limited to,
service of a summons.
XVIII. INTEGRATION
67.
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 any prior agreements and understandings, whether verbal or written, concerning the
settlement embodied herein. Other than the Appendix referenced in Section XX of this Consent
Decree, Deliverables approved by the Corps in accordance with Section XIV of this Consent
Decree, and modifications made effective in accordance with Section XV of this Consent Decree,
no other document, nor any representation, inducement, agreement, understanding, or promise,
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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.
XIX. FINAL JUDGMENT AND RETENTION OF JURISDICTION
68.
Upon approval and entry of this Consent Decree by the Court, this Consent Decree
shall constitute a final judgment, and the Clerk of Court may administratively close this case.
69.
Subject to the termination provisions of this Consent Decree (Section XVI), this
Court retains jurisdiction over this action for purposes of resolving disputes arising under this
Consent Decree, or entering orders modifying this Consent Decree, or effectuating or enforcing
compliance with the terms of this Consent Decree.
XX. APPENDICES
70.
The following Appendixes attached to and part of this Consent Decree:
Appendix A: Boggy Branch and Site
IT IS SO ORDERED.
March 3, 2016
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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