Waste Action Project v. Gem Fabrication of Washington, Inc

Filing 12

CONSENT DECREE/ORDER granting parties' 10 Joint Motion. Signed by Judge Thomas S. Zilly. (SWT)

Honorable Thomas S. Zilly

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WASTE ACTION PROJECT,
No. 2:18-cv-00375-TSZ

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Plaintiff,
CONSENT DECREE
v.
GEM FABRICATION OF WASHINGTON,
INC.,
Defendant.

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STIPULATIONS

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Plaintiff Waste Action Project (“Plaintiff”) sent a 60-day notice of intent to sue letter to

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defendant Gem Fabrication of Washington (“Defendant”) dated January 8, 2018 (“Notice

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Letter”). Plaintiff filed a Complaint against Defendant on March 12, 2018, alleging violations of

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the Clean Water Act, 33 U.S.C. § 1251 et seq., relating to discharges of stormwater from

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Defendant’s facility located in Renton, Washington, seeking declaratory and injunctive relief,

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civil penalties and attorneys’ fees and costs (“Complaint”).

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Solely for the purpose of this Consent Decree (“Decree”), and for no other purpose,

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Waste Action Project and Gem Fabrication of Washington, Inc. (collectively, the “Parties”)

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agree that this Court has jurisdiction over the Parties and the subject matter of this action

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pursuant to Section 505(a) of the Clean Water Act, 33 U.S.C. §§ 1365(a) and 1342, and the terms

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and conditions of National Pollutant Discharge Elimination System Permit No. WAR001435 (the

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“NPDES Permit”) authorizing discharges of pollutants from Defendant’s facility located at or

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about 875 SW 7th Street, Renton, WA (“the Facility”).
Defendant asserted defenses to the allegations contained in the Complaint, expressly

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denies Plaintiffs’ allegations in their entirety, and admits no liability by entering this Consent

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Decree.
The Parties agree that the settlement of this matter is in the best interest of the parties and

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the public and that entry of this Consent Decree is the most appropriate means of resolving this

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matter.

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The Parties stipulate to entry of this Consent Decree without trial, adjudication, or

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admission of any issues of fact or law regarding the claims and allegations set forth in Plaintiff’s

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Complaint and Notice Letter.

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IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows.
I. GENERAL PROVISIONS

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1.

This Court has jurisdiction over the Parties and subject matter of this action for

purposes of this Consent Decree;
2.

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

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enter into the terms and conditions set forth below and to legally bind the party, and any

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successors in interest or assigns.

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3.

This Consent Decree applies to and binds the Parties, their respective officers,

agents, servants, employees, successors and assigns.
4.

This Consent Decree shall apply to Defendant’s operation and oversight of the

Facility.
5.

This Consent Decree constitutes a full and complete settlement of the claims

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alleged in the Complaint in this case and all other claims known and unknown existing as of the

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date of entry of this Consent Decree, related to stormwater discharges that could be asserted

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under the Clean Water Act, 33 U.S.C. §§ 1251-1387, arising from operations of the Facility
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against the Defendant, its officers, directors, employees, shareholders, consultants, contractors

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and agents.

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6.

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

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Defendant’s admission of jurisdiction on page two of this Decree solely for the purpose of

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entering the Decree, it is not an admission or adjudication regarding any allegations by Plaintiff

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in this case or of any fact or conclusion of law related to those allegations.

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7.

This court shall retain jurisdiction for the purposes of issuing such further orders

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and directions as may be necessary and appropriate for the implementation of, enforcement of

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compliance with, or disputes regarding this Consent Decree. A precondition to any application

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to the Court under this paragraph is that the Parties must first attempt to informally resolve the

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dispute through meetings between the Parties by serving written notice of request for resolution

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to the parties and their counsel of record. If no resolution is reached within sixty (60) days from

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the date that the notice of dispute is served, the Parties may resolve the dispute by filing motions

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with the Court. The provisions of section 505(d) of the Clean Water Act, 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, shall apply to any proceedings seeking to enforce

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the terms and conditions of this consent decree.

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8.

The Parties recognize that no consent judgment can be entered in a Clean Water

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Act suit in which the United States is not a party prior to forty-five (45) days following the

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receipt of a copy of the proposed consent judgment by the U.S. Attorney General and the

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Administrator of the U.S. EPA pursuant to 33 U.S.C. § 1365(c)(3). Therefore, upon the signing

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of this Consent Decree by the Parties, Plaintiff shall serve copies of it upon the Administrator of

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the U.S. EPA and the Attorney General, with a copy to Defendant. The Parties shall also mail a

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copy of this Consent Decree at the same time to the Regional Administrator of Region 10 of the

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U.S. EPA pursuant to 40 C.F.R. § 135.5.

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9.

This Consent Decree shall take effect upon entry by the Court. This Consent

Decree shall terminate two years after entry by the court.
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10.

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Plaintiff releases Defendant for all claims that were or could have been brought in

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this litigation. Plaintiff covenants not to sue Defendant under the Clean Water Act concerning

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the alleged violations set forth in the Complaint (Dkt. No. 1). This covenant not to sue, limited

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to the claims described in this paragraph, will survive the termination of this Consent Decree.
11.

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Defendant must comply fully with all conditions of its NPDES permit and any

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successor, modified, or replacement permit authorizing discharges of stormwater associated with

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industrial activity from the Facility, and the Stormwater Pollution Prevention Plan (“SWPPP”)

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adopted thereunder, for the duration of the consent decree. Nothing in this Consent Decree may

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be construed as precluding or limiting Defendant’s obligations to perform Corrective Actions if

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required by the NPDES permit.
II.

ATTORNEYS’ FEES AND SUPPLEMENTAL ENVIRONMENTAL PROJECT
1.

Within fourteen (14) days of the effective date of this Consent Decree, Defendant

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shall pay the sum of EIGHTEEN THOUSAND AND NO/100s DOLLARS ($18,000.00) to the

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Green River College Foundation, as described in Attachment A of this Consent Decree, for

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environmental benefit projects in the Green River watershed. Payment will be made to the order

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of and delivered to the Green River College Foundation, 12401 SE 320th Street, Auburn, WA

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98092-3622, Attn: George Frasier. Payment shall include the following reference in a cover

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letter or on the check: “Consent Decree, Waste Action Project v. Gem Fabrication of

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Washington, Inc.” Defendant shall provide a copy of the check and cover letter, if any, to Waste

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Action Project and its counsel at the addresses identified in Section VIII below.

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2.

Within fourteen (14) days of the effective date of this Consent Decree, Defendant

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shall pay Plaintiff’s reasonable attorney and expert fees and costs in the amount of EIGHTEEN

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THOUSAND DOLLARS ($18,000.00) by check payable and mailed to Smith & Lowney,

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PLLC, 2317 East John St., Seattle, WA 98112, Attn: Richard Smith. Defendant’s payment shall

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be in full and complete satisfaction of any claims that Plaintiff has or may have, either legal or

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equitable, and of any kind or nature whatsoever, for fees (including attorneys’ and consultants’

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fees), expenses, and costs incurred in this matter. Smith & Lowney shall provide an attestation
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to Defendant, under oath, that they have incurred at least $18,000.00 in fees and costs in this

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matter based on the standard hourly rates of its attorneys.
III.

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1.

SWPPP IMPLEMENTATION AND REVISIONS

Defendant agrees to update and maintain its SWPPP to reflect current treatments

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and corrective actions for the duration of the Consent Decree, and to fully implement its SWPPP

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for the duration of this consent decree. This includes regular maintenance of Defendant’s catch

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basin filter inserts in accordance with procedures specified by the filter developer. Defendant

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will maintain its prohibition on storage of galvanized metals outside; and maintain the best

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management practice of repairing damaged asphalt.

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2.

Defendant shall update its SWPPP within thirty (30) days of entry of this consent

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decree to specify the following best management practices: covering the catch basin inserts in the

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outside steel pipe bundle storage area, use of a blower to move leaves and pine needle debris into

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uncovered areas, and then conduct vacuum sweeping.
IV.

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1.

Within twenty (20) months of entry of this consent decree Defendant will acquire

a ride-on sweeper, such as a Tennant T20 or M30, for purposes of conducting vacuum sweeping.
V.

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VACUUM SWEEPER

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MONITORING

If Defendant wishes to cease sampling roof discharge at the Facility, Defendant

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shall first obtain approval from Ecology. This does not apply to the ceasing of sampling pursuant

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to NPDES Permit Condition S4.B.6. (Consistent Attainment).
VI.

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1.

REPORTING

Commencing on entry of this Consent Decree, for a period of two years

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Defendant will provide copies of documentation evidencing Defendant’s compliance with this

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consent decree, including copies of all quarterly sample lab reports; discharge monitoring

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reports; submissions to and communications with and from Ecology pursuant to the NPDES

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permit; invoice for purchase of the ride-on sweeper in section IV, and updated SWPPPs.

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Documentation will be forwarded to WAP on a quarterly basis no later than the twentieth day
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following the end of each calendar quarter.
VII.

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1.

MODIFICATION

This Consent Decree may be modified only upon the written consent of the

parties and the approval of the Court, after 45-days notice to the United States.
2.

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

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form presented, this Consent Decree and the settlement embodied herein shall be voidable at the

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sole discretion of either party. The Parties agree to continue negotiations in good faith in an

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attempt to cure any objection raised by the Court to entry of this Consent Decree.
VIII. NOTICES

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1.

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

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sending party shall use e-mail and one of the following methods of delivery: (1) personal

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delivery; (2) registered or certified mail, in each case return receipt requested and postage

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prepaid; or (3) a nationally recognized overnight courier, with all fees prepaid. For written

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communications pursuant to section VI (Reporting), email delivery is also acceptable. For a

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notice or other communication regarding this Consent Decree to be valid, it must be delivered to

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the receiving party at one or more of the addresses listed below or to any other address

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designated by the receiving party in a notice in accordance with this paragraph.

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If to Waste Action Project:
Waste Action Project
P.O. Box 9281
Covington, WA 98042
[e-mail]
And to:
Richard Smith
Smith & Lowney
2317 E. John Street
Seattle, WA 98112
[e-mail]

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If to Gem Fabrication of Washington, Inc.

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Dan Shuler
875 SW 7th Street
Renton, WA 98055
[e-mail]

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And to:

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Bradford T. Doll
Tupper Mack Wells, PLLC
2025 First Avenue, Suite 1100
Seattle, WA 98121
[e-mail]

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2.

A notice or other communication regarding this Consent Decree shall be effective

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when received unless the notice or other communication is received after 5:00 p.m. on a business
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day or on a day that is not a business day, then the notice shall be deemed received at 9:00 a.m.
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on the next business day. A notice or other communication shall be deemed to have been
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received: (a) if it is delivered in person, sent by registered or certified mail or by nationally
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recognized overnight courier, or for communications pursuant to section (VI), via email; or (b) if
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the receiving party rejects or otherwise refuses to accept it, or if it cannot be delivered because of
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a change in address for which no notice was given, then upon that rejection, refusal or inability
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to deliver.
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IX. ORDER
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The parties’ joint motion for entry of consent decree, docket no. 10, is GRANTED, and
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pursuant to the parties’ stipulations, IT IS SO ORDERED. The Clerk is directed to CLOSE this
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case.
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DATED this 10th day of January, 2019.
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Thomas S. Zilly
United States District Judge

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WASTE ACTION PROJECT
Signature:

/s/ Greg Wingard

Name:

Greg Wingard

Title:

Executive Director

Dated:

10/24/2018

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GEM FABRICATION OF WASHINGTON

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Signature:

/s/ Dan Shuler

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Name:

Dan Shuler

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Title:

Vice President, West Coast Operations

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Dated:

10/29/2018

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Presented by:
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TUPPER MACK WELLS PLLC
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By:

s/ Bradford Doll
Bradford Doll, WSBA No. 38479
2025 First Avenue, Suite 1100
Seattle, WA 98121
Ph. [phone] / Fx. [phone]

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4852-1030-2073, v. 1

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