Waste Action Project v. Fruhling Sand & Topsoil, Inc.

Filing 69

AMENDED CONSENT DECREE re parties' 65 Stipulated MOTION for Entry of Amended Consent Decree. Signed by Judge Ricardo S. Martinez. (PM)

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 1 of 11

HON. RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WASTE ACTION PROJECT,

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Plaintiff,
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v.
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FRUHLING SAND & TOPSOIL, INC.,
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Defendant.
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___________________________________ )
I.

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Case No. 2:17-cv-00498-RSM
AMENDED CONSENT DECREE

STIPULATIONS

WHEREAS, Plaintiff Waste Action Project filed a second amended complaint against

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Defendant Fruhling Sand & Topsoil, Inc. (“Fruhling”) alleging violations of the Clean Water Act

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(“CWA”), 33 U.S.C. § 1251 et seq., at Fruhling’s facility located at 1010 228th Street SW,

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Bothell, WA 98021 (the “Property”), and seeking declaratory and injunctive relief, civil

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penalties, and attorneys’ fees and costs. Dkt. 40. Fruhling's activities and operations on the

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Property, along with the Property, are referred to as the "Facility."

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WHEREAS, the parties executed and filed a “Stipulation of Facts and Issues” stipulating

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to, among other things, Fruhling’s discharges of arsenic-contaminated water to Crystal Creek via

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point source without NPDES permit authorization in violation of the Clean Water Act (referred

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to herein as the “unpermitted pollutant discharge”). Dkt. 55.
WHEREAS, Fruhling and the Washington State Department of Ecology ("Ecology")

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have entered into an Agreed Order Docket No. 16479 (the "Agreed Order"), attached hereto as
CONSENT DECREE
No. 2:17-cv-00498-RSM
1

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 2 of 11

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Exhibit A and incorporated herein by this reference, effective October 18, 2019, and an

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Amended Agreed Order Docket No. 18098, attached hereto as Exhibit D and incorporated herein

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by this reference, effective April 13, 2020. Together, the Agreed Order and the Amended

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Agreed Order are referred to as the "Amended Agreed Order."
WHEREAS, the Property is for sale and Fruhling is in negotiations with a prospective

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buyer for the Property.
WHEREAS, Waste Action Project and Fruhling agree that settlement of these matters is

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in the best interest of the parties and the public, and that entry of this Consent Decree is the most

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appropriate means of resolving this action.
WHEREAS, Waste Action Project and Fruhling stipulate to the entry of this Consent

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Decree without trial or adjudication of any issues of fact or law regarding Waste Action Project’s

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claims that remain undecided or unstipulated, and without any admissions other than those

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expressly provided in this Consent Decree.

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DATED this __th day of April, 2020

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MILLER NASH GRAHAM & DUNN LLP

SMITH & LOWNEY PLLC

By s/Douglas Morrison
Douglas Morrison, WSBA #18769
Attorneys for Defendant
Fruhling Sand & Topsoil, Inc.

By s/Marc Zemel
Marc Zemel, WSBA #44325
Attorneys for Plaintiff
Waste Action Project

FRUHLING SAND & TOPSOIL, INC.

WASTE ACTION PROJECT

By

By
Greg Wingard
Executive Director

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Dan Fruhling
President

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AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
2

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 3 of 11

I.

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ORDER AND DECREE

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

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

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ADJUDGES, and DECREES as follows:

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1.

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

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2.

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

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authorized by the party or parties he or she represents to enter into the terms and conditions of

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this Consent Decree and to legally bind the party or parties, their successors in interest and

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assigns of the parties to it.
3.

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This Consent Decree applies to and binds the parties and their successors in

interest and assigns.
4.

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

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operation and oversight by Fruhling of the Facility, which is currently subject to National

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Pollutant Discharge Elimination System Permit No. WAG503168 (the “NPDES permit”), but

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which lacks an NPDES permit authorizing the unpermitted pollutant discharge.
5.

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

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alleged in the second amended complaint and all other claims known or unknown and existing as

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of the date of the entry of this Consent Decree that could be asserted against Fruhling, its

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officers, management, employees, agents, successors and assigns under the Clean Water Act, 33

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U.S.C. §§ 1251-1387, arising from the operation of or discharges from the Facility. Upon

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termination of this Consent Decree, these claims will be released and dismissed with prejudice.
6.

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

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Consent Decree is not an admission or adjudication regarding any specific allegations by Waste

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Action Project in this case or of any conclusion of fact or law related to those allegations that

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remain undecided or unstipulated, nor evidence of any wrongdoing or misconduct on the part of

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Fruhling.
AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
3

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 4 of 11

7.

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The parties agree that the obligations undertaken under Paragraphs 8, 9 and 10 are

in full and complete satisfaction of all the claims covered by this decree.
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Injunctive Relief:
a.

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Fruhling will comply fully with the terms and provisions of the NPDES

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Permit at the Facility and any successor, modified, or replacement permit and any

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additional NPDES permit issued for the Facility in the future.
b.

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Fruhling will comply with the Amended Agreed Order attached as

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Exhibits A and D, including the Corrective Actions in Section IV of the Amended

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Agreed Order. In addition:
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Fruhling must, simultaneous with delivery of any and all

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documents submitted to Ecology under the Amended Agreed Order, send a copy

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to Waste Action Project.
2.

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Upon receipt of documents submitted under paragraph 8.b.1 of this

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Consent Decree, Waste Action Project will have 30 days to provide Fruhling and

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Ecology with comments. Within 14 days of receiving Waste Action Project’s

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comments, Fruhling will respond to each comment in writing. If Waste Action

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Project’s comments propose changes to any of Fruhling’s submissions to

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Ecology, Fruhling’s response must adopt Waste Action Project’s proposed

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changes and promptly resubmit to Ecology, or provide detailed justification why

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it believes the proposed changes are unnecessary or unreasonable.
3.

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Fruhling will make all reasonable efforts to expeditiously obtain

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Ecology approval for its plan to address its unpermitted pollutant discharge in

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accordance with paragraphs IV 1) through 4) of the Amended Agreed Order, as

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well as any other necessary regulatory approvals or other agreements with third

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parties. Upon Ecology’s approval of Fruhling’s proposed plan, Fruhling will

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implement the plan as soon as practicable.
AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
4

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 5 of 11

c.

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With respect to any contamination caused by the unpermitted pollutant

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discharge that is not addressed by the Amended Agreed Order and that is located outside

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the boundaries of the Facility, Fruhling will comply with the requirements of the Model

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Toxics Control Act (MTCA), Chapter 70.105D RCW and Ecology's implementing

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regulations, Chapter 173-340 WAC. Fruhling will promptly provide Waste Action

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Project with copies of all sampling data obtained during this process, and notify Waste

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Action Project within 7 days after it completes implementation of a cleanup action plan.
d.

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Once per calendar quarter Fruhling will provide Waste Action Project with

progress updates describing the status of implementation of all activities performed under

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this Paragraph 8 until complete. These progress updates will be due to Waste Action

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Project on the following dates for the prior calendar quarter: February 15th, May 15th,

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August 15th and November 15th.
e.

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Within thirty (30) days of entry of this Consent Decree, with a qualified

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consultant, Fruhling will review and revise its Site Management Plan (SMP) to meet the

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requirements of the Sand and Gravel General Permit as follows: (i) include on the

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Facility site map the presence of any scrap metal pile, the location of the unpermitted

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pollutant discharge, the drainage from near the entrance that flows to a Pond, and the

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location of methane system components that generate condensate; (ii) include a directive

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to identify any location that is designed to or used purposely to infiltrate stormwater as a

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discharge point and monitor that location in accordance with the NPDES permit; (iii)

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develop procedures for monitoring and disposal of methane system condensate to prevent

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discharges of condensate to the ground; (iv) revise the BMPs to include additional

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sweeping at the Facility entrance to minimize sediment trackout; (v) after a review to

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assess the sufficiency of the current SMP, including the sufficiency of the currently

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selected Best Management Practices (BMPs), otherwise revise the SMP as necessary to

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achieve compliance with the NPDES Permit.
AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
5

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 6 of 11

f.

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Within ten (10) days of entry of this Consent Decree, Fruhling will

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prevent methane system condensate from discharging to the ground.

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Payment in Lieu of Penalty:
a.

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Fruhling will make payments in the amount of the lesser of fifty percent

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(50%) of the Net Proceeds on Sale of the Property or Four Hundred Thousand Dollars

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($400,000) ("the Payment in Lieu of Penalty"). "Net Proceeds on Sale of the Property"

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means all proceeds of the sale of the Property remaining after satisfaction and payment of

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all financial encumbrances on the Property, real estate excise taxes due in connection

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with the sale, commissions, closing costs including escrow fees and costs of recording

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and reconveyance, title insurance premiums, and the costs of litigation owed per

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paragraph 10 of this Consent Decree. If Fruhling contends the Payment in Lieu of

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Penalty is less than $400,000, it will promptly provide Waste Action Project with copies

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of all documentation used to calculate the Payment in Lieu of Penalty. Payments towards

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the Payment in Lieu of Penalty will be made to EarthCorps for environmental benefit

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projects in the Swamp Creek watershed, as described in Exhibit B to this Consent Decree.

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Checks will be made to the order of and delivered to EarthCorps, Attn: Steve Dubiel,

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6310 NE 74th Street, Suite 201E, Seattle, WA 09115. Payment shall include the

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following reference in a cover letter or on the check: “Consent Decree, WAP v. Fruhling

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Sand and Topsoil, Inc.” Fruhling will send copies of all checks and cover letters

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simultaneously to Greg Wingard, Waste Action Project, P.O. Box 9281, Covington, WA

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98042. Fruhling will satisfy this obligation as follows:
b.

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Fruhling will make monthly payments of Five Thousand Dollars ($5,000)

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until it pays the entirety of the Payment in Lieu of Penalty. These monthly payments will

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be due on the first day of each month. A check mailed and postmarked on or before the

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first of the month will be considered timely. For every day a payment is late, Fruhling

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will pay an additional Twenty-Five Dollars ($25) as stipulated damages for late
AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
6

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 7 of 11

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payments. Fruhling may at any time pay the entire remaining balance of the Payment in

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Lieu of Penalty, plus any accrued late fees, to satisfy its obligation under Paragraph 9.
c.

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Fruhling’s first monthly payment to EarthCorps will be due on the first of

the month following satisfaction of Fruhling’s obligations in Paragraph 10, below.

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d.

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Fruhling commits to diligently pursue a sale of the Property and to

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maximize the sale price. Fruhling will pay any remaining balance of the Payment in Lieu

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of Penalty, plus any accrued late fees, within seven (7) days of closing on any sale of the

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Property. Fruhling will within one (1) business day notify Waste Action Project when it

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receives any written purchase offers (including the offer amount), when it executes a

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purchase and sale agreement, and when the sale closes.

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10.

Costs of Litigation:
a.

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Fruhling will pay Waste Action Project’s reasonable attorney and expert

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fees and costs in the amount of Two Hundred Thousand Dollars ($200,000), pursuant to

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the Promissory Note executed in favor of Smith & Lowney PLLC on December 24, 2019

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and attached hereto as Exhibit C. Checks will be made to the order of and delivered to

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Smith & Lowney PLLC, 2317 E. John Street, Seattle, WA 98112, Attn: Knoll Lowney.

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Fruhling will satisfy this obligation as follows, consistent with the Promissory Note:
b.

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Fruhling will make monthly installment payments of Five Thousand

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Dollars ($5,000) each month, commencing on the first day of the month following entry

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of this Consent Decree. The full balance, including any accrued interest and late fees

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provided in the Promissory Note attached hereto as Exhibit C, will be due and payable on

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the first day of the fortieth month after the first installment date, or seven (7) days after

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the closing date for the sale of the Property, whichever occurs earlier. Fruhling may at

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any time pay the entire remaining balance of the $200,000 before the due date, plus any

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accrued interest and late fees, to satisfy its obligation under Paragraph 10.

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AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
7

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 8 of 11

c.

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Fruhling commits to pursue sale of the Facility and to maximize the sale

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price. Fruhling will within one (1) business day immediately notify Waste Action Project

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when it receives any written purchase offers (including the offer amount), when it

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executes a purchase and sale agreement and when the sale closes.

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11.

The payments described under Paragraphs 9 and 10 above shall be in full and

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complete satisfaction of any claims Waste Action Project has or may have against Fruhling,

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

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incurred in this litigation, or for civil penalties, or payments in lieu of civil penalties pursuant to

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a supplemental environmental project under the CWA, or relief of any nature whatsoever not

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provided for in this Consent Decree.
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A force majeure event is any event outside the reasonable control of Fruhling that

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

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

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failure to comply with the terms of this decree, provided that Fruhling timely notifies Waste

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Action Project of the event; the steps that Fruhling will take to perform the task; the projected

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

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taken to prevent or minimize any impacts to water quality resulting from delay in completing the

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task.

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Fruhling will notify Waste Action Project of the occurrence of a force majeure event as

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soon as reasonably possible but, in any case, no later than fifteen (15) days after the occurrence

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of the event. In such event, the time for performance of the task will be extended for a

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reasonable period of time following the force majeure event.
By way of example and not limitation, force majeure events include

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a.

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

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b.

Earthquakes, landslides, fire, floods;

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AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
8

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 9 of 11

c.

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Actions or inactions of third parties over which defendants have no
control;

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d.

Unusually adverse weather conditions;

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e.

Restraint by court order or order of public authority;

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f.

Strikes;

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g.

Any permit or other approval sought by Fruhling from a government

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authority to implement any of the actions required by this consent decree

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where such approval is not granted or is delayed, and where Fruhling has

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timely and in good faith sought the permit or approval; and
h.

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13.

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Litigation, arbitration, or mediation that causes delay.

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

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

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Court for any further order that may be necessary to enforce compliance with this decree or to

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resolve any dispute regarding the terms or conditions of this Consent Decree. In the event of a

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dispute regarding implementation of, or compliance with, this Consent Decree, the parties must

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first attempt to resolve the dispute by meeting to discuss the dispute and any suggested measures

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for resolving the dispute. The provisions of CWA section 505(d), 33 U.S.C. § 1365(d),

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

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

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the terms and conditions of this Consent Decree.
15.

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

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

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to forty-five (45) days following the receipt of a copy of the proposed consent judgment by the

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U.S. Attorney General and the Administrator of the U.S. EPA. Therefore, upon the filing of this

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Consent Decree by the parties, Waste Action Project will serve copies of it upon the

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Administration of the U.S. EPA and the Attorney General, with a copy to Fruhling.
AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
9

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 10 of 11

16.

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This Consent Decree will take effect upon entry by this Court. Upon both (a)

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satisfaction of the payment obligations under Paragraphs 9 and 10, and (b) issuance of any No

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Further Action letter by Ecology with respect to the obligations under paragraph 8.c of this

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Consent Decree, or after two years from the date of entry of this Consent Decree, whichever is

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later, the parties shall jointly notify the Court and request termination of this Consent Decree and

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dismissal of the case in accordance with Paragraph 5. The parties by agreement may request

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termination and dismissal after performance of both (a) and (b) above.

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17.

All parties have participated in drafting this Consent Decree.

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18.

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

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19.

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

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

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agree to continue negotiations in good faith in an attempt to cure any objection raised by the

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Court to entry of this Consent Decree.
20.

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All communications between the parties shall be through legal counsel.

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Notifications or copies required by this Consent Decree to be made to Waste Action Project shall

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be delivered electronically to:
Waste Action Project
Attn: Greg Wingard
P.O. Box 9281,
Covington, WA 98042
E-mail: [e-mail]

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Notifications required by this Consent Decree to be made to Fruhling shall be mailed to:

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Dan Fruhling
Fruhling Sand & Topsoil, Inc.
7534 NE 175th St #1
Kenmore, WA 98028
E-mail: [e-mail]

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With a copy to:
Douglas Morrison
Miller Nash Graham & Dunn

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AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
10

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1

Case 2:17-cv-00498-RSM Document 69 Filed 05/07/20 Page 11 of 11

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2801 Alaskan Way #300
Seattle WA 98121
E-mail: [e-mail]

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A notice or other communication regarding this 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

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

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it is delivered in person or sent by registered or certified mail or by nationally recognized

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

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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
deliver.
DATED this 7th day of May, 2020.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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Presented by:
MILLER NASH GRAHAM & DUNN LLP
By s/Douglas Morrison
Douglas Morrison, WSBA #18769
Attorneys for Defendant
Fruhling Sand & Topsoil, Inc.

SMITH & LOWNEY PLLC
By s/Marc Zemel
Marc Zemel, WSBA #44325
Attorneys for Plaintiff
Waste Action Project

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AMENDED CONSENT DECREE
No. 2:17-cv-00498-RSM
11

Smith & Lowney, p.l.l.c. 
2317 East John St. 
Seattle, Washington 98112 
(206) 860‐2883
4830-6958-5594.1