Puget Soundkeeper Alliance v. Buse Timber & Sales Inc

Filing 14

CONSENT DECREE by Judge Marsha J. Pechman granting parties' 11 Joint Motion for Entry of Consent Decree. (PM)

HON. MARSHA J. PECHMAN

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10
11
12
13
14

PUGET SOUNDKEEPER ALLIANCE,

)
)
Plaintiff,
)
v.
)
)
BUSE TIMBER & SALES, INC.,
)
)
Defendant.
)
___________________________________ )

No. 2:15-cv-01460-MJP

CONSENT DECREE

15
I.

16
17

STIPULATIONS

Plaintiff Puget Soundkeeper Alliance sent a sixty-day notice of intent to sue letter to

18

Defendant Buse Timber & Sales, Inc. on or about June 25, 2015, and filed a complaint on September

19

11, 2015, alleging violations of the Clean Water Act, 33 U.S.C. § 1251 et seq., relating to discharges

20

of stormwater from Buse’s facility in Everett, Washington, and seeking declaratory and injunctive

21

relief, civil penalties and attorneys’ fees and costs.

22
23
24

Puget Soundkeeper Alliance recognizes that Buse is an employee-owned company and an
important member of the local community, and unable to afford a substantial penalty payment.
Puget Soundkeeper Alliance and Buse agree that settlement of this matter is in the best

25
interest of the parties and the public, and that entry of this Consent Decree is the most appropriate
26
27
28
29
30
31
32

means of resolving this action.
Puget Soundkeeper Alliance and Buse stipulate to the entry of this Consent Decree without
CONSENT DECREE - 1
CASE No. 2:15-cv-01460-MJP

1

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

2

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

3
4
5
6
7
8

DATED this 10th day of May, 2016.
MONTGOMERY PURDUE
BLANKINSHIP & AUSTIN PLLC

SMITH & LOWNEY PLLC

By

By

Michael E. Gossler, WSBA #11044
Attorneys for Defendant Buse Timber &
Sales, Inc.

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

BUSE TIMBER & SALES, INC.

PUGET SOUNDKEEPER ALLIANCE

By

By

9
10
11
12
13

Tom Parks
Buse Timber & Sales, Inc., President

Chris Wilke
Puget Soundkeeper Alliance, Executive
Director

14
II.

15
16
17

ORDER AND DECREE

THIS MATTER came before the Court upon the foregoing Stipulations of the parties.
Having considered the Stipulations and the promises set forth below, the Court hereby ORDERS,

18
19

ADJUDGES, and DECREES as follows:

20

1.

This Court has jurisdiction over the parties and subject matter of this action.

21

2.

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

22

enter into the agreements set forth below.

23
24
25

3.

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

4.

This Consent Decree and any injunctive relief ordered within will apply to the

26

operation, oversight, or both by Buse at its facility located at or about 3812 28th Pl. NE, Everett,

27

WA 98201-8602 (“Facility”), which is subject to National Pollutant Discharge Elimination

28
29
30
31
32

System Permit No. WAR000097 (“NPDES permit”).
CONSENT DECREE - 2
CASE No. 2:15-cv-01460-MJP

1

5.

This Consent Decree is a full and complete settlement and release of all the claims in

2

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

3

otherwise, for any acts or omissions, existing as of the date of entry of this Consent Decree, that

4

could be asserted under the Clean Water Act, 33 U.S.C. §§ 1251-1387, arising from operations of the

5
6
7
8
9

Facility against Buse, its subsidiaries, employees, agents, successors and assigns. These claims are
released and dismissed with prejudice.
6.

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

7.

Buse agrees to the following terms and conditions in full and complete satisfaction of

10
11

all the claims covered by this Consent Decree:
12

a.

13

successor, modified, or replacement permit authorizing discharges of stormwater

14

associated with industrial activity from the Facility. Maintaining full compliance

15

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

with the ISGP includes but is not limited to fully implementing Ecology’s “Draft

16
17

2013 Implementation Manual for Log Yards” and incorporating the manual as well

18

as its best management practices (BMPs) into the Facility’s SWPPP.

19

b.

20

Within thirty days of the entry of this Consent Decree, Buse will update its

SWPPP to include:

21
22

i.

on vehicle washing anywhere except new wash pad;

23
24

A description of wash pad and containment vault as well as a prohibition

ii.

25

A site map that represents true site conditions which omits SW grassy
area that is not used for industrial activity and which does not drain or

26
connect to any industrial area.

27
28
29
30
31
32

iii.

Proper descriptions of site surfaces as paved, unpaved or vegetated.

CONSENT DECREE - 3
CASE No. 2:15-cv-01460-MJP

iv.

1

ISGP.

2
3
4

All other required BMPs in this Consent Decree or applicable from the

c.

Within thirty days of the entry of this Consent Decree, Buse will remove the

accumulation of wood debris resulting from the delivery and offloading of logs on,

5
6

around, and immediately west of its log float beach on Union Slough, and to dispose

7

of this waste properly with other mill wood waste.

8

d.

9

Buse will conduct log float beach and ramp, activity in accordance with Buse's

Aquatic Lease with Washington State Department of Natural Resources and

10
11

maintain the ramp and adjacent beach areas as specified in the Aquatic Lease
12

(Attachment A to this Consent Decree) under sections 2.2 Restrictions on Use, 8.2

13

Use of Hazardous Substances, and 8.6 Cleanup.

14

e.

15

Within thirty days of the entry of this Consent Decree, Buse will amend its

SWPPP to include (1) a description of log float beach and ramp areas and activities,

16
17

and (2) a listing of potential pollutant sources attributable to activity.

18

f.

19

ramp, where stormwater runoff drains into the Buse facility, applicable BMPs

20

Buse will maintain the non-paved temporary log storage area west of the

specified in the Ecology’s “Draft 2013 Implementation Manual for Log Yards.”

21
22

g.

Buse will resume quarterly sampling at DP-1 for all parameters immediately.

23

The sample taken on Jan 19, 2016 may be the first sample.

24

h.

25

Within thirty days of the entry of this Consent Decree, Buse will revise

description of DP-1 sampling point in its SWPPP to note that the sampling point is

26
27
28
29
30
31
32

only appropriate when the sampler employs a substantial reach with a sampling pole
approximately 8 feet up the north ditch from the tide gate to avoid comingling of
CONSENT DECREE - 4
CASE No. 2:15-cv-01460-MJP

1
2
3
4

sample with discharge from the swirling confluence with the south ditch and effluent
from the west ditch.
i.

Buse will properly maintain, replace and dispose of soiled surface booms and

include in its SWPPP a schedule for replacing the boom as necessary, but no less

5
6

frequently than every year, and properly disposing of soiled booms.

7

j.

8

Facility’s SWPPP to include a description of the berm on the southern border of the

9

Within thirty days of the entry of this Consent Decree, Buse will update the

facility and engineer approval of the berm. Buse will include in its SWPPP and at a

10
11
12
13

minimum employ the following berm-specific BMPs to ensure that no runoff from
Buse’s yard enters the south ditch:
i.

14

Closely inspect the south log yard and berm monthly for signs of
deterioration and/or seepage to ensure berm is maintained and

15

vegetated/stabilized;

16
17

ii.

berm to prevent impacting or damaging the berm;

18
19

Keep equipment and facility operations a safe distance away from the

iii.

20

Repair berm immediately if damaged or inspections reveal signs of
deterioration;

21
22

iv.

Maintain full vegetative coverage or other form of stabilization of

23

berm and buffer area. Replant vegetation as needed in the event of

24

damage or die-off;

25

v.

Maintain berm at a sufficient height to prevent overflow and seepage.

26
27
28
29
30
31
32

CONSENT DECREE - 5
CASE No. 2:15-cv-01460-MJP

1

k.

Within thirty days of the entry of this Consent Decree, Buse will replace

2

the silt curtains and update its SWPPP to include regular silt curtain inspection

3

and the following BMPs:

4

i.

Clean or replace silt curtains immediately if inspection and/or

5
benchmark exceedance reveals the need to do so;

6
ii.

7
8

Include detailed silt curtain cleaning and replacement procedures in
SWPPP to adequately protect against illicit discharge of solids in north

9

ditch during silt curtain cleaning and replacement and require proper

10
disposal of used silt curtains.
11
12

l.

13

copy of the updated SWPPP to Soundkeeper for comments. Within thirty (30)

14

days receipt of Soundkeeper’s comments, Buse will make a good faith effort to

15

Within thirty days of the entry of this Consent Decree, Buse will provide a

respond and further revise the SWPPP as Buse’s stormwater consultant deems

16
17

appropriate.

18

m.

19

Consent Decree is entered by the Court, forward copies to Soundkeeper of all

20

Buse will, for a period of three (3) years beginning on the date that this

written or electronic communications between it and Ecology related to the

21
22

NPDES permit, the Clean Water Act, and stormwater discharges from the

23

Facility. During this same period, Buse shall forward copies to Soundkeeper of

24

all inspection reports and/or checklists of all visual monitoring conducted at the

25

Facility pursuant to the terms and conditions of the NPDES permit. All copies

26
27
28
29
30
31
32

shall be forwarded electronically to Soundkeeper on a quarterly basis and not later
than the forty-fifth (45th) day following the end of each calendar quarter.
CONSENT DECREE - 6
CASE No. 2:15-cv-01460-MJP

1

8.

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

2

Buse will pay four thousand dollars ($4,000) to the Rose Foundation for Communities and the

3

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

4

described in Attachment B this Consent Decree. Checks will be made to the order of and delivered

5
6

to: The Rose Foundation for Communities and the Environment. Payment will include the following

7

reference in a cover letter or on the check: “Consent Decree, Puget Soundkeeper Alliance v. Buse

8

Timber & Sales, Inc.” A copy of the check and cover letter, if any, will be sent simultaneously to

9

Puget Soundkeeper Alliance and its counsel.

10
11

9.

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

12

pay Puget Soundkeeper Alliance’s actual litigation fees, expenses, and costs (including

13

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

14

thousand dollars ($40,000) by check payable and mailed to Smith & Lowney, PLLC, 2317 East

15

John St., Seattle, WA 98112, attn: Richard A. Smith. Buse’s payment shall be in full and

16
17

complete satisfaction of any claims Puget Soundkeeper Alliance has or may have, either legal or

18

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

19

litigation.

20

10.

A force majeure event is any event outside the reasonable control of Buse that

21
22

causes a delay in performing tasks required by this decree that cannot be cured by due diligence.

23

Delay in performance of a task required by this decree caused by a force majeure event is not a

24

failure to comply with the terms of this decree, provided that Buse notifies Puget Soundkeeper

25

Alliance of the event; the steps that Buse will take to perform the task; the projected time that

26
27

will be needed to complete the task; and the measures that have been taken or will be taken to

28
29
30
31
32

CONSENT DECREE - 7
CASE No. 2:15-cv-01460-MJP

1
2
3
4

prevent or minimize any impacts to stormwater quality resulting from delay in completing the
task.
Buse will notify Puget Soundkeeper Alliance of the occurrence of a force majeure event as
soon as reasonably possible but, in any case, no later than thirty days after the occurrence of the

5
6
7
8

event. In such event, the time for performance of the task will be extended for a reasonable period of
time following the force majeure event.
By way of example and not limitation, force majeure events include

9

a.

Acts of God, war, insurrection, or civil disturbance;

b.

Earthquakes, landslides, fire, floods;

12

c.

Actions or inactions of third parties over which Buse has no control;

13

d.

Unusually adverse weather conditions;

14

e.

Restraint by court order or order of public authority;

f.

Strikes;

g.

Any permit or other approval sought by Buse from a government authority to

10
11

15
16
17
18

implement any of the actions required by this consent decree where such

19

approval is not granted or is delayed, and where Buse has timely and in good

20

faith sought the permit or approval; and

21
h.

22
23
24
25

11.

Litigation, arbitration, or mediation that causes delay.

This Court retains jurisdiction over this matter. And, while this Decree remains in

force, this case may be reopened without filing fee so that the parties may apply to the Court for any
further order that may be necessary to enforce compliance with this decree or to resolve any dispute

26
27

regarding the terms or conditions of this Decree. In the event of a dispute regarding implementation

28

of, or compliance with, this Decree, the parties must first attempt to resolve the dispute by meeting to

29

CONSENT DECREE - 8
CASE No. 2:15-cv-01460-MJP

30
31
32

1

discuss the dispute and any suggested measures for resolving the dispute as provided in section 17 of

2

this Decree. The provisions of section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d),

3

regarding awards of costs of litigation (including reasonable attorney and expert witness fees) to any

4

prevailing or substantially prevailing party, will apply to any proceedings seeking to enforce the

5
6
7
8
9

terms and conditions of this Consent Decree.
12.

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

can be entered in a Clean Water Act suit in which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent judgment by the U.S. Attorney General and

10
11

the Administrator of the U.S. Environmental Protection Agency (EPA). Therefore, upon the filing of
12

this Consent Decree by the parties, Puget Soundkeeper Alliance will serve copies of it upon the

13

Administrator of the EPA and the Attorney General, with copy to Buse.

14
15

13.

This Consent Decree will take effect upon entry by this Court. It terminates three (3)

years after that date, or 90 days after the parties’ completion of all obligations imposed by this

16
17

Decree, whichever is later.

18

14.

Both parties have participated in drafting this decree.

19

15.

This Consent Decree may be modified only upon the approval of the Court.

16.

If for any reason the court should decline to approve this Consent Decree in the form

20
21
22

presented, this Consent Decree is voidable at the discretion of either party. The parties agree to

23

continue negotiations in good faith in an attempt to cure any objection raised by the court to entry of

24

this Consent Decree.

25

17.

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

26
27

may use any of the following methods of delivery: (1) personal delivery; (2) registered or certified

28

mail, in each case return receipt requested and postage prepaid; (3) a nationally recognized overnight

29

CONSENT DECREE - 9
CASE No. 2:15-cv-01460-MJP

30
31
32

1

courier, with all fees prepaid; or (4) e-mail. For a notice or other communication regarding this

2

decree to be valid, it must be delivered to the receiving party at the one or more addresses listed

3

below or to any other address designated by the receiving party in a notice in accordance with this

4

paragraph 17.

5
6
7
8
9
10
11
12

if to Puget Soundkeeper Alliance:
Katelyn Kinn
and to:
Richard Smith
Smith & Lowney PLLC
2317 East John St.
Seattle, WA 98112
email: [e-mail]
if to Buse:
Tom Parks

13
14
15
16
17

and to:
Mike Gossler
Montgomery Purdue Blankinship & Austin PLLC
701 Fifth Avenue, Suite 5500
Seattle, Washington 98104
A notice or other communication regarding this Consent Decree will be effective when

18
19

received unless the notice or other communication is received after 5:00 p.m. on a business day, or

20

on a day that is not a business day, then the notice will be deemed received at 9:00 a.m. on the next

21

business day. A notice or other communication will be deemed to have been received: (a) if it is

22

delivered in person or sent by registered or certified mail or by nationally recognized overnight

23
courier, upon receipt as indicated by the date on the signed receipt; or (b) if the receiving party
24
25

rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address

26

for which no notice was given, then upon that rejection, refusal, or inability to deliver; or (c) for

27

notice provided via e-mail, upon receipt of a response by the party providing notice or other

28
29
30
31
32

communication regarding this Consent Decree.
CONSENT DECREE - 10
CASE No. 2:15-cv-01460-MJP

1

DATED this 6th day of ___July___, 2016.

2
3
4
5
6

A

7
8

Marsha J. Pechman
United States District Judge

9
10
11
12
13

Presented by:

14
15

MONTGOMERY PURDUE
BLANKINSHIP & AUSTIN PLLC

SMITH & LOWNEY, PLLC

By

By

Michael E. Gossler WSBA #11044
Attorneys for Defendant Buse Timber &
Sales, Inc.

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

16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32

CONSENT DECREE - 11
CASE No. 2:15-cv-01460-MJP