Puget Soundkeeper Alliance v. Steeler, Inc

Filing 26

AMENDED CONSENT DECREE re Defendant's 22 Motion to Amend Consent Decree, signed by Judge Robert S. Lasnik. (SWT)

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 1 of 10

HONORABLE ROBERT S. LASNIK.

1
2
3
4
5

6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9

10
11

PUGET SOUND KEEPER ALLIANCE,
Plaintiff,

12
V.

13

14
15

STEELER, INC.
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 2:14-cv-00729-RSL
AMENDED CONSENT DECREE
EPROPOSBB]

16

I.

17

18

STIPULATIONS

Plaintiff Puget Soundkeeper Alliance ("Soundkeeper") sent a sixty-day notice of intent to

19

sue letter to Defendant Steeler, Inc. ("Steeler") on or about March 14, 2014, and filed a complaint

20

on May 15, 2014, alleging violations of the Clean Water Act, 33 U.S.C. § 1251 et seq., relating to

21

discharges of stormwater from Steeler' s facility in Seattle, Washington, and seeking declaratory

22

and injunctive relief, civil penalties and attorneys' fees and costs.

23
24
25
26

Soundkeeper and Steeler agreed that settlement of this matter was in the best interest of
the parties and the public, and entered a Consent Decree on July 19, 2016.
Under section IL 7(d) of the Consent Decree, Steeler was to complete construction and full
implementation of the Best Management Practices called for in the Compliance Plan by

AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL
p. I
023 002 nf093s03wd

Smith & Lowney, p.Ll.c.

2317 East John St
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 2 of 10

1

September 30, 2016. Due to a variety of factors, a different treatment system was selected and

2

the completion date was delayed. Puget Soundkeeper Alliance and Steeler have since conferred

3

and believe that this Amended Consent Decree is the most appropriate means of resolving all

4

issues and disputes associated with this delay.

5

Steeler paid $20,000 to the Rose Foundation as required by Consent Decree section 8.

6

Steeler paid $45,000 to Smith & Lowney PLLC as required by Consent Decree section 9.

7

Steeler contracted with Lean Environment to prepare a Storrnwater Engineering Report

8

dates August 29, 2016 (hereinafter "Lean Engineering Report") describing installation of an

9

Enpurion MT storrnwater treatment system. Washington Department of Ecology (Ecology)

10

approved the Lean Engineering Report on September 7, 2016. Soundkeeper' s expert Bill Lider,

11

Lider Engineering PLLC, reviewe.d and provided connnent on the report on October 26, 2016.

12

Steeler's consultant Michael Johnson, Lean Environment, responded to Soundkeeper's comments

13

on the report on November 3, 2017. Steeler completed installation of the Enpurion MT

14

storrnwater treatment system on November 18, 2016. A copy of the Lean Engineering Report is

15

attached to this Amended Consent Decree as Appendix 1.

16

Soundkeeper and Steel er stipulate to the entry of this Amended Consent Decree without

17

trial, adjudication, or admission of any issues of fact or law regarding Puget Soundkeeper

18

Alliance's claims or allegations set forth in its complaint and its sixty-day notice.

19

DATED this 9th day of June, 2017.

20
21

22
23
24
25
26

AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL

p.2
023 002 nfU93s03wd
II

Smith & Lowney, p.U.c.

2317 East John St.
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 3 of 10

I

JOYCE ZIKER PARKINSON, PLLC

SMTIH & LOWNEY PLLC

By 5/ Stephen R Parkinson
Stephen R Parkinson, WSBA #21111
Attorneys for Defendant Steeler, Inc.

By

STEELER, INC.

PUGET SOUND.KEEPER ALLIANCE

By

By~~~~~~~~~~~~~~~

! .

2

3
4

sl Richard A. Smith
Richard A Smith, WSBA #21788
Attorneys for Plaintiff Puget Soundkeeper
Alliance

5

~~)

6

7
8

Matt F. SuroWiech
President

Chris Wilke
Puget Soundkeeper Alliance, Executive
Director

9
10
11

II.

ORDER AND DECREE

THIS MATTER came before the Court upon the foregoing Stipulations of the parties.

12
Having considered the Stipulations and the promises set forth below, the Court hereby ORDERS,

13
14

ADJUDGES, and DECREES as follows:
This Court has jurisdiction over the parties and subject matter of this action.

15
16
l7

2.

enter into the agreements set forth below.

18
19

Each signatory for the parties certifies for that party that he or she is authorized to

This Amended Consent Decree applies to and binds the parties and their
successors and assigns.

20
4.

This Amended Consent Decree and any injunctive relief ordered Within will

21
22

apply to the operation, oversight, or both by Steeler of its facility located at or about 1002

23

Martin Luther King Jr. Way S., Seattle, WA 98178 ("Facility"), which is subject to National

24

Pollutant Discharge Elimination System Permit No. W AR125358 ("NPDES pennit").

25

26

5.

This Amended Consent Decree is a full and complete settlement and release of all

tbe claims in the complaint, the sixty-day notice and all other claims known and unknown,
AMENDED CONSENT DECREE [PROPOSED]
No. 14,729-RSL
p. 3

Smith & Lowney, p.l.1.c.

2317 East Jobn-St.
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 4of10

fl

Ii
I·

I

II

!1

i!

I

1
SMITH & LOWNEY PLLC

I/ JOYCE ZIKER p AR.KINSON, PLLC

2 II
11 By s/ Stephen R Parkinson ·
Stephen R. Parkinson, WSBA #21 11 l
Attorneys for Defendant Steeler, Inc.
4

I

3

5

By sl Richard A. Smith
Richard A. Smith, WSBA #21788
Attorneys for Plaintiff Puget Soundkeeper
Alliance
PUGET ~O~~R A.LLIANCE

STEELER, INC.

6

By_~--------- By i~kt_l /1-j ___

7

Matt F. Surowiecki

Cfiris Wilke

President

8

Puget Soundkeeper Alliance, Executive
Director

9
10

II.

11

ORDER AND DECREE

THIS MAITER came before the Court upon the foregoing Stipulations of the parties.

12
Having considered the Stipulations and the promises set forth below, the Court hereby ORDERS,

13
; ADJCDGES, and DECREES as follows:
11

15

I

L

2.

16

This Court has jurisdiction over the parties and subject matter of this action.
Each signatory for· the parties certifies for that party that he or she is authorized to

enter into the agreen1ents set forth below.

l7
18

3.

19

This Amended Consent Decree applies to and binds the parties and their

successors and assigns.

20
21

4.

I

· This Amended Consent Decree and any injunctive relief ordered within will

22

I

23

I, Martin Luther King Jr. Way S., Seattle, WA 98178 ("Facility"), which is subject to National

apply to the operation, oversight, or both by Steel er of its facility located at or about 1002

I

i

24 i) Pollutant Discharge Elimination System Permit No. WAR125358 ("NPDES permit").
25

ii

26

5.

This Amended Consent Decree is a full and complete settlement and release of all

the claims in the complaint, the sixty-day notice and all other claims known and unknown,

I
i

A..M:ENDED CONSENT DECREE [PROPOSED]
,i No. 14-729-RSL

I p. 3
I,

Smith & Lowney, pJJ.c.

2317 East John St.
Seattle, Washington 98112
(206) 86-0-2883

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 5 of 10

1

contingent or otherwise, for any acts or omissions, existing as of the date of entry of this

2

Amended Consent Decree, that could be asserted under the Clean Water Act, 33 U.S.C. §§ 1251-

3

1387, arising from operations of the Facility against Steeler, its subsidiaries, employees, agents,

4

successors and assigns. These claims are released and dismissed with prejudice.

5
6.

7
8

This Amended Consent Decree is a settlement of disputed facts and law.

7.

6

Steeler agrees to the following terms and conditions in full and complete

satisfaction of all the claims covered by this Amended Consent Decree:

9

a.

10

Steder will comply fully with all conditions of its NPDES Permit and any

successor, modified, or replacement permit authorizing discharges of stormwater

11

associated with industrial activity from the Facility;

12
b.

No later than July 1, 2017, Steeler will have its consultant update its

13
stormwater pollution prevention plan ("SWPPP") to meet the requirements of the 2015

14

ISGP, correct the deficiencies, and incorporate the requirements of the Lean Engineering

15

Report and provide Soundkeeper with an electronic copy of the updated SWPPP;

16
17

c.

18

No later than July 1, 2017, Steeler will have its consultant revise its

Operation & Maintenance (O&M) Manual to accurately reflect the new treatment system

19

and all associated Best Management Practices (BMPs) and required ongoing maintenance

20
and provide Soundkeeper with an electronic copy of the revised O&M Manual.·
21
d.

22

Steeler will continue to monitor its stormwater discharges from its outfal~

23

and conduct process sampling inside the system to evaluate the efficacy of the various

24

treatment layers, at least once per month through Dec.ember 31, 2017, subject to a

25

stormwater discharge event occurring during the month, to determine whether the Lean

26

Engineering Report improvements eliminate exceedances of the benchmarks. For the
AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL
p.4
023 002 nf093s03wd
II

Smith & Lowney, p.1.1.c.

2317 East John St.
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17 Page 6 of 10

1

purposes of this subparagraph, a valid sample is one taken within the first 12 hours of a

2

stormwater discharge event and that is representative of the discharge, and otherwise taken

3

and analyzed in conformity with the requirements ofNPDES permit condition S4. For the

4

purposes of this subparagraph, Steel er may average monitoring results of multiple valid

5
samples that are taken within the same month. Steeler must provide all sampling data to

6

Soundkeeper no later than the 15th day of the month following each sample.

7

e.

8

Steeler agrees to waive ISGP condition S8.D5(e), and not to request an

9

extension or waiver pursuant to ISGP condition S8.D5(c). If Steeler exceeds three

10

benchmarks in 2017, Steeler agrees that such failures will trigger the requirement to

11

engineer and install additional treatment best management practices (BMPs) with the goal

12
of achieving the applicable benchmark values. In accordance with ISGP condition
13
S8.D.3(b), Steeler must submit an engineering report detailing the new treatment BMPs no

14
15

later than May 15, 2018. In accordance with ISGP condition S8.D5, Steeler must install

16

and implement the new treatment BMPs no later than September 30, 2018;

17

f.

18

Steeler will allow Soundkeeper and its expert(s) to inspect the facility at a

mutually agreeable time to observe Steeler' s implementation of this Consent Decree,

19

including compliance with the new SWPPP, O&M Manual, BMPs, and the NPDES

20
permits, subject to an access agreement mutually agreed upon by the Parties. Steeler will
21
pay for the reasonable costs of Soundkeeper's expert(s) for this inspection, not to exceed

22

$2,000, within fourteen (14) days of receipt of Soundkeeper' s expert's invoice.

23

g.

24
25

For a period of three (3) years commencing on the effective date of this

Amended Consent Decree, Steeler will, no later than the discharge monitoring report due

26

dates specified by the Permit, send to Soundkeeper, without charge, copies of all
AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL

p.5
023 002 nf093s03wd

Smith & Lowney, p.l.l.c.

2317 East John St.
Seattle, Washington 98112
[phone]

Case 2:14-cv-00729-RSL Document 22

Filed 06/09/17

Page 7of10

1

documents, including but not limited to discharge monitoring reports, correspondence,

2

engineering reports, electronically transmitted information, and inspection reports,

3

concerning the Permit or any successor, modified, or replacement permit that Steeler has ·

4

transmitted to, or received from the Washington Department of Ecology since the previous

5
submission to Sound.keeper under this paragraph.

6
8.

7

Not later than seven (7) days after the entry of this Amended Consent Decree by

8

this Court, Steeler will pay twenty five hundred dollars ($2,500) to the Rose Foundation for the

9

Environment for a project or projects to improve or protect the water quality of Puget Sound as

10
11

described in Appendix II to this Consent Decree. Checks will be made to the order of and
delivered to: Rose Foundation for the Environment, 1970 Broadway, Suite 600, Oakland, CA

12
94612-2218. Payment will include the following reference in a cover letter or on the check:

13
14
15

"Amended Consent Decree, Puget Sound.keeper Alliance v. Steeler, Inc." A copy of the check
and cover letter, if any, will be sent simultaneously to Sound.keeper and its counsel.
9.

16

Within seven (7) days of entry of this Amended Consent Decree by the Court,

17

Steeler shall pay Soundkeeper' s actual litigation fees, expenses, and costs (including

18

reasonable attorney and expert witness fees) incurred in this matter in the amount of four

19

thousand five hundred dollars ($4,500) by check payable and mailed to Smith & Lowney,

20
PLLC, 2317 East John St., Seattle, WA 98112, attn: Richard A. Smith. Steeler's payment
21

22

shall be in full and complete satisfaction of any claims Sound.keeper has or may have, either

23

legal or equitable, and of any kind or nature whatsoever, for fees, expenses, and costs incurred

24

in the resolution of the consent decree dispute issues arising prior to the date of the proposed

25

Amended Consent Decree.

26

10.

This Court retains jurisdiction over this matter. And, while this Amended Consent

AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL

p.6
023 002 nf093s03wd

Smith & Lowney, p.1.1.c.

2317 East John St.
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22

Filed 06/09/17 Page 8 of 10

1

Decree remains in force, this case may be reopened without filing fee so that the parties may

2

apply to the Court for any further order that may be necessary to enforce compliance with this

3
4

decree or to resolve any dispute regarding the terms or conditions of this Amended Consent
Decree. In the event of a dispute regarding implementation of, or compliance with, this Amended

5

6
7

Consent Decree, the parties must first attempt to resolve the dispute by meeting to discuss the
dispute and any suggested measures for resolving the dispute as provided in section II.17 of this

8

Amended Consent Decree. The provisions of section 505(d) of the Clean Water Act, 33 U.S.C. §

9

1365(d), regarding awards of costs of litigation (including reasonable attorney and expert witness

10

fees) to any prevailing or substantially prevailing party, will apply to any proceedings seeking to

11

enforce the terms and conditions of this Amended Consent Decree.

12
11.

The parties recognize that, pursuant to 33 U.S.C. § 1365(c)(3), no consent

13
14

judgment can be entered in a Clean Water Act suit in which the United States is not a party prior

15

to 45 days following the receipt of a copy of the proposed consent judgment by the U.S. Attorney

16

General and the Administrator of the U.S. Environmental Protection Agency (EPA). Therefore,

17

upon the filing of this Amended Consent Decree by the parties, Soundkeeperwill serve copies of

18

it upon the Administrator of the EPA and the Attorney General, with copy to Steeler.

19

12.

This Amended Consent Decree will take effect upon entry by this Court. It

20
terminates three (3) years after that date, or 90 days after the parties' completion of all obligations
21
22

imposed by this Amended Consent Decree, whichever is later.

23

13.

Both parties have participated in drafting this Amended Consent Decree.

24

14.

This Amended Consent Decree may be modified only upon the approval of the

15.

If for any reason the court should decline to approve this Amended Consent

25
26

Court.

AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL
p. 7
023 002 nf093s03wd

Smith & Lowney, p.1.1.c.

2317 East John St
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22 Filed 06/09/17

Page 9of10

1

Decree in the form presented, this Amended Consent Decree is voidable at the discretion of either

2

party. The parties agree to continue negotiations in good faith in an attempt to cure any objection

3

raised by the court to entry of this Amended Consent Decree.

4
16.

Notifications required by this Amended Consent Decree must be in writing. The

5

6
7

sending party may use any of the following methods of delivery: (1) personal delivery; (2)
registered or certified mail, in each case return receipt requested and postage prepaid; (3) a

8

nationally recognized overnight courier, with all fees prepaid; or ( 4) e-mail. For a notice or other

9

communication regarding this decree to be valid, it must be delivered to the receiving party at the

10

one or more addresses listed below or to any other address designated by the receiving party in a

11

notice in accordance with this paragraph 17.

12
13
14
15
16

if to Puget Soundkeeper Alliance:

Katelyn Kinn
130 Nickerson Street, Suite 107
Seattle, WA 98109
email: [e-mail]

17
18
19
20
21
22

and to:
Richard Smith
Smith & Lowney PLLC
231 7 East John St.
Seattle, WA 98112
email: [e-mail]

23

if to Steeler:
Mike Dollard

24

and to:

25

Stephen R. Parkinson
JOYCE ZIKER PARKINSON, PLLC
1601 Fifth Avenue, Suite 2040

26

AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL
p. 8
023 002 nf093S03wd

Smith & Lowney, pJ.1.c.
2317 East John St.
Seattle, Washington 98112

[phone]

Case 2:14-cv-00729-RSL Document 22

1

2
3
4
·5

6
7

Filed 06/09/17 Page 10of10

Seattle, WA 98101
Email: [e-mail]
A notice or other communication regarding this Amended Consent Decree will be
effective when received unless the notice or other communication is received after 5:00 p.m. on a
business day, or on a day that is not a business day, then the notice will be deemed received at
9:00 a,m. on the next business day. A notice or other communication will be deemed to have
been .received: (a) if it is delivered in person or sent by registered or certified mail or by nationally

8
recognized overnight courier, upon receipt as indicated by the date on the signed receipt; or (b) if

9
10
11

the receiving party rejects or otherwise refuses to accept it, or if it cannot be delivered because of
a change in address for which no notice was given, then upon that rejection, refusal, or inability to

12

deliver; or (c) for notice provided via e-mail, upon receipt of a response by the party providing

13

notice or other communication regarding this Amended Consent Decree.

14
15

DATED this

~ ~yof ~~.

, 2017.

16
17
HON. ROBERTS. LASNIK
UNITED STATES DISTRICT JUDGE

18
19
20
21

Presented by:
JOYCE ZIKER PARKINSON, PLLC

SMITH & LOWNEY, PLLC

By sl Stephen R. Parkinson
Stephen R. Parkinson, WSBA #21111
Attorneys for Defendant Steeler, Inc.

By s/ Richard A. Smith
Richard A. Smith WSBA #21788
Meredith A. Crafton WSBA #46558
Attorneys for Plaintiff
Puget Soundkeeper Alliance

22
23
24
25

26
AMENDED CONSENT DECREE [PROPOSED]
No. 14-729-RSL
p.9
023 002 nf093s03wd

Smith & Lowney, pJ.l.c.

2317 East John St.
Seattle, Washington 98112

[phone]