Waste Action Project v. Port of Olympia

Filing 147

CONSENT DECREE re 144 Stipulated Motion for Entry of Consent Decree, signed by Judge Benjamin H. Settle. (GMR)

HON. BENJAMIN H. SETTLE

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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WASTE ACTION PROJECT,
Plaintiff,
v.
PORT OF OLYMPIA,
Defendant.
___________________________________
I.

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Case No. 3:17-CV-05445-BHS
CONSENT DECREE

STIPULATIONS

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Waste Action Project sent a sixty day notice of intent to sue letter to defendant Port of

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Olympia (the “Port”) on or about April 3, 2017, and filed a complaint on June 12, 2017, alleging

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violations of the Clean Water Act, 33 U.S.C. § 1251 et seq., relating to discharges of stormwater
from the Port’s ocean terminal and seeking declaratory and injunctive relief, civil penalties, and
attorneys’ fees and costs.
On November 21, 2019, the Court found, on summary judgment, in favor of Waste Action
Project as to some of its claims that the Port violated the Clean Water Act. Dkt. 133.
Waste Action Project and the Port agree that settlement of these matters is in the best interest
of the parties and the public, and that entry of this Consent Decree is the most appropriate means

CONSENT DECREE: No. 3:17-CV-05445-BHS - 1

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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of resolving this action.
Waste Action Project and the Port stipulate to the entry of this Consent Decree without trial,
adjudication, or admission of any issues of fact or law regarding Waste Action Project’s claims or
allegations set forth in its complaint and its sixty-day notice.

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DATED this 8th day of January, 2020
COASTLINE LAW GROUP PLLC

SMITH & LOWNEY PLLC

By s/Kimberly Seely
Kimberly Seely, WSBA #21676
Attorney for Defendant
Port of Olympia

By s/Alyssa Englebrecht
Alyssa Englebrecht, WSBA #46773
Richard Smith, WSBA #21788
Attorneys for Plaintiff
Waste Action Project

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PHILLIPS BURGESS PLLC

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By s/Heather Burgess
Heather Burgess, WSBA #28477
Daniel Berner, WSBA #43241
Attorney for Defendant
PORT OF OLYMPIA

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II.

ORDER AND DECREE

THIS MATTER came before the Court upon the Parties’ Joint Motion for Entry of Consent
Decree and the foregoing Stipulations of the parties. Having considered the Stipulations and the
promises set forth below, the Court hereby ORDERS, ADJUDGES, and DECREES as follows:
1.

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

CONSENT DECREE: No. 3:17-CV-05445-BHS - 2

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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2.

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

enter into the agreements set forth below.
3.

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

assigns.

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4.

This Consent Decree and any injunctive relief ordered within applies to the

operation, oversight, or both by the Port at 915 Washington Street, NE, Olympia, WA 98501

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(the “Facility”), which is subject to National Pollutant Discharge Elimination System Permit

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No. WAR001168 (the “NPDES permit”).

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5.

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

in the complaint, the sixty-day notice (including amendments thereto) and all other claims known
and unknown existing as of the date of entry of this Consent Decree that could be asserted under
the Clean Water Act, 33 U.S.C. §§ 1251-1387, arising from operations of the Facility. These claims

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are released and dismissed with prejudice. Enforcement of this Consent Decree is Waste Action

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Project’s exclusive remedy for any violation of its terms.

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6.

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

is not an admission or adjudication regarding any specific allegations by Waste Action Project in
this case or of any fact or conclusion of law related to those allegations, nor evidence of any
wrongdoing or misconduct on the part of the Port.
7.

Prior to executing this Consent Decree, the Port performed the following actions as

part of its efforts to resolve this litigation:
a.

The Port updated its SWPPP to reflect the following additional BMP for

loading or unloading operations of bark-on logs at its facility: On the next business day after
the ship departs, the Port cleans the containment cells and rub rail.

CONSENT DECREE: No. 3:17-CV-05445-BHS - 3

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

b.

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The Port installed permanent wooden covers over the gaps between the bull

rail and I-beam along Berths 2 and 3, as depicted in Exhibit 1.
8.

The Port agrees to the terms and conditions identified below in paragraphs 9-47 in

full and complete satisfaction of all the claims covered by this decree:

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9.

The Port will comply fully with all conditions of the NPDES Permit and any

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

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industrial activity from the Facility.

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Completion of a Level 3 Corrective Action

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10.

The Port will fully comply with all conditions of Agreed Order No. 16584,

attached hereto as Exhibit 2.
Wharf Monitoring and BMPs
11.

No later than February 28, 2020, the Port will survey the elevations of the

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wharf drains in Basin A and Basin C to confirm that sheetflow will be captured if plugged or

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filled. To the extent that survey results support doing so, remaining open wharf drains will be

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plugged/filled within thirty (30) days of the survey being completed. If all remaining wharf

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drains cannot be plugged/filled, Port will identify representative sample points from the

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remaining open wharf drains, update its sampling plan and SWPPP, and sample pursuant to
requirements of the ISGP/Permit.
12.

No later than April 30, 2020, the Port will install a 3” curb along the bull rail to

prevent stormwater discharge off edge of wharf.

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13.

No log loading will occur at Berth 1, as depicted in Exhibit 3.

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14.

Vacuum sweeping the wharf will occur as follows:

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CONSENT DECREE: No. 3:17-CV-05445-BHS - 4

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

i.

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During bark-on log loading operations, the Port will vacuum

sweep the wharf at lunch, at the end of day, and at the shift change for multi

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shift loading.

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ii.

During bark-off log loading operations, the Port will vacuum

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sweep the wharf at the end of the day. The wharf is depicted on attached

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Exhibit 4.

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iii.

Bark debris will not be left on the wharf over the weekend.

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iv.

For all other bulk and break bulk materials, the Port will review

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and update, as necessary, its SWPPP sweeping plan before accepting the cargo.

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v.

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is at berth.

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vi.

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The above measures will be incorporated into the Port’s Bark

Removal and Sweeping Plan described herein.

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The wharf will be swept at least once per week when no vessel

Source Control
15.

Not later than the date of entry of this Consent Decree, the Port will no longer

store logs in drainage Basin A.
16.

Not later than the date of entry of the Consent Decree, the Port will implement

and maintain the following best management practices (“BMPs”):
i.

Log decks will be emptied at sufficient intervals to allow every catch

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basin to be inspected and cleaned, if needed, no less frequently than twice per

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year;

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CONSENT DECREE: No. 3:17-CV-05445-BHS - 5

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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ii.

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removed, put into a bark containment cell, and the area will be swept using the

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Immediately after a log deck is cleared, all accumulated bark will be

Port’s Elgin Crosswind Sweeper.
iii.

By April 30, 2020, the Port will evaluate technical feasibility of

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alternative methods of bark collection and, if feasible, will implement an
alternative method within ninety (90) days.

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iv.

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as depicted on the attached Exhibit 3 using the Port’s Elgin Crosswind

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The Port agrees to sweep travel ways and leased areas twice per week

Sweeper.
v.

If the existing bark containment cells are inadequate to hold all the bark

at the Facility, the Port will establish additional bark containment cells. If
additional cells are established, the SWPPP will be amended to reflect the

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addition of a new cell or cells.

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vi.

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bark containment cells.

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vii.

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The Port install a bump of asphalt around the outside perimeter of the

At all bark containment cells, the Port will place covers over the bark

piles contained therein at the end of each business day such that the covers are
in place overnight and on weekend days, unless operations are occurring.
viii.

The Port will use drip pans and absorbents under and around the

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debarker.

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ix.

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At all catch basins, the Port will utilize Ultra Drain Guard Part #8931

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At all drain inlets, the Port will install surrounding wattle-type barriers.

Adjustable Frame Model.

CONSENT DECREE: No. 3:17-CV-05445-BHS - 6

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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17.

If in two quarters of a calendar year, or two consecutive quarters during the

term of the Consent Decree, following implementation of all the items in paragraph 16, the
sampling results show an exceedance of the permit benchmark for total suspended solids
and/or chemical oxygen demand, the Port will immediately implement the following

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additional BMP: Acquire a high efficiency sweeper such as the Tymco DST-4 or DST-6.
18.

If, after entry of this Consent Decree, the Port’s quarterly monitoring exceeds

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the permit benchmarks for any parameter, the Port will, within ten (10) days of submitting the

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DMRs to Ecology, contact Waste Action Project to set up a meet and confer at which Waste

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Action Project’s expert will consult with the Port on corrective actions, if required, under the

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Port’s Permit.
19.

Within thirty (30) days of entry of this Consent Decree, the Port will develop

and implement a Bark Removal and Sweeping Plan which will be an appendix to the Port’s

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SWPPP. The Port will keep a sweeping log which will include tracking of where sweeping

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has been performed and when it was performed.

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20.

Within one (1) year of entry of this Consent Decree, the Port will update its

leases with its tenants to include details of each tenant’s responsibilities related to
implementation of the Port’s Stormwater Pollution Prevention Plan (“SWPPP”).
21.

Not later than the date of entry of this Consent Decree, the Port will require

annual SWPPP trainings to be attended by a Labor Relations Committee representative

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member for ILWU Local 47, and a representative of each of the Port’s tenants. The Port will

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put on the annual SWPPP trainings itself.

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22.

Not later than the date of entry of this Consent Decree, the Port will no longer

store logs within twelve (12) feet of the edge of the pavement along the shoreline to the north

CONSENT DECREE: No. 3:17-CV-05445-BHS - 7

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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of the wharf, as depicted in Exhibit 4. This area may be used during loading, unloading, and

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transport of logs.

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23.

Not later than the date of entry of this Consent Decree, the Port will ensure all

bark which has been accumulated through bark collection and/or sweeping throughout the day

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is moved into a bark containment cell by the end of each business day.
24.

Not later than the date of entry of this Consent Decree, the Port will not store

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any equipment, logs, bark, solid waste, raw materials, intermediate product, final product, by-

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product, or waste product outside of the boundary of Drainage Basin A or Drainage Basin C.

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25.

Not later than the date of entry of this Consent Decree, the Port will ensure that

the spill kits in the Holbrook leased area of the Facility contain a storm drain plug or cover.
26.

Not later than the date of entry of this Consent Decree, the Port will ensure that

facilitation of stormwater best management practices is taken into consideration in

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conjunction with pavement repair at the Facility.

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SWPPP Amendments

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27.

Except as otherwise specified herein, not later than sixty (60) days after the

date of entry of the Consent Decree, the Port will update its SWPPP as follows:
i.

The Port will revise Section 3 of its SWPPP to comply with Condition

S3.B.4.a by including a description of each BMP selected and explaining in detail how
and where the selected BMPs will be implemented.

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ii.

The Port will add corn to its inventory of materials.

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iii.

The Port will update its sampling plan to include documentation and

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justification for the “substantially identicality” of discharge points P1 and P2.

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CONSENT DECREE: No. 3:17-CV-05445-BHS - 8

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

iv.

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The Port will fully incorporate the BMPs from the SWPPP updates

which are appended to the August 2018 SWPPP into Section 3 of the SWPPP where
these BMPs are still applicable at the Facility.

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v.

The Port will incorporate the applicable BMPs from the

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Implementation Manual for Log Yards into Section 3 of its SWPPP.
vi.

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Where responsibilities for SWPPP implementation have been delegated

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to the tenants, the SWPPP will describe these designations, including which tenant is

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responsible, and including the name of the employee and their position, which BMP is

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being implemented by the tenant, the frequency of the tenant’s implementation of the

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BMP, and any contractor the tenant hires to implement the BMP.

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vii.

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The Port will update its SWPPP each time it accepts a new cargo at the

facility. A “new cargo” for purposes of this requirement shall mean any bulk or

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breakbulk cargo other than logs. The Port will provide WAP with these new SWPPP

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updates upon acceptance of a new cargo.

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Discharge Point P3
28.

Not later than the date of entry of the Consent Decree, the Port will begin

monitoring stormwater discharges from discharge point P3 in compliance with Condition S4
of the permit. The Port will update its sampling points with Ecology to identify P3 as a new
sampling point as required by Condition S4.B.2.d. The Port may terminate monitoring if
there is no exceedance in eight (8) consecutive quarters of monitoring.

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CONSENT DECREE: No. 3:17-CV-05445-BHS - 9

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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Inspections
29.

Not later than the date of entry of the Consent Decree, the Port will ensure that

the Port representative responsible for performing the monthly inspections required by permit
Condition S7.A physically enters the leased areas of the Facility to perform those inspections.

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30.

Beginning no later than the date of entry of this Consent Decree, any time any

Ecology personnel requests entry to the Facility to perform an inspection, the Port will

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comply with the requirements of permit Condition G3.

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Staffing

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31.

Within three (3) months of entry of the Consent Decree, the Port will review

and evaluate the job description of the Environmental Program Manager. The Port will
modify the description to provide this person with authority to implement the SWPPP. If
necessary, the Port will reallocate responsibilities for SWPPP implementation to other Port

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staff or hire additional staff or contractors to ensure implementation of the SWPPP.

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Compliance Audits

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32.

Within thirty (30) days of entry of this Consent Decree, the Port will hire a

mutually agreeable third party ISGP compliance auditor. This third party auditor will be
permitted to inspect the Facility quarterly on an unannounced basis to review compliance with
the current SWPPP and compliance with the terms of this Consent Decree. Auditor will
produce a record of the inspection results, which may include photographs of the Facility.
Shipment of Goods Other Than Logs
33.

No later than the date of entry of this Consent Decree, if the Port contracts to

accept a cargo it has not accepted before, it will undertake an analysis of whether acceptance
of that new cargo constitutes a significant process change in accordance with Permit

CONSENT DECREE: No. 3:17-CV-05445-BHS - 10

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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Condition S2.B. Should the new cargo operation constitute a significant process change, the

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Port will comply with the significant process change requirements of Permit Condition S2.B.

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34.

No later than the date of entry of this Consent Decree, the Port will develop

and implement BMPs designed to prevent bulk feed, bedding, and any other loose material

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associated with livestock operations from entering surface water.
35.

Beginning on the date of entry of this Consent Decree, if the Port contracts to

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accept a cargo it has not accepted before, a representative from the Port’s environmental

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department will attend the pre-operation (“pre-op”) meeting regarding this cargo.

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Miscellaneous Items
36.

The Port will not make public statements about any environmental project funded

by payments in lieu of penalty as a part of this settlement without acknowledging that the project
resulted from settlement of this lawsuit and was required by this Consent Decree.
37.

For the duration of this Consent Decree, the Port shall, on a quarterly basis,

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electronically forward to Waste Action Project copies of all reports submitted to Ecology under the

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ISGP and all written communications to and/or from Ecology related to any corrective actions,

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permit modification requests, time extension requests, and/or compliance or noncompliance with

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the ISGP.
Payment in lieu of penalty
38.

Not later than fourteen (14) days after the entry of this Consent Decree by this Court,

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the Port will pay $625,000.00 (SIX HUNDRED TWENTY FIVE THOUSAND DOLLARS) to the

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Rose Foundation for projects to improve the water quality of Budd Inlet or South Puget Sound, as

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described in Exhibit 5 to this Consent Decree. The check will be made to the order of The Rose

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Foundation, Attn: Tim Little, 201 Fourth Street, Suite 102, Oakland, CA 94607. Payment will

CONSENT DECREE: No. 3:17-CV-05445-BHS - 11

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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include the following reference in a cover letter or on the check: “Consent Decree, Waste Action

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Project v. Port of Olympia, 3:17-cv-05445-BHS.” A copy of the check and cover letter, if any, will

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be sent simultaneously to Waste Action Project and its counsel.
Payment of costs and fees

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39.

Within fourteen (14) days of entry of this Consent Decree by the Court, the Port

will pay $733,000.00 (SEVEN HUNDRED THIRTY THREE THOUSAND) to cover Waste

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Action Project’s litigation fees, expenses, and costs (including reasonable attorney and expert

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witness fees) by check payable and mailed to Smith & Lowney, PLLC, 2317 East John St.,

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Seattle, WA 98112, attn: Richard Smith. The Port’s payment will be in full and complete

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satisfaction of any claims Waste Action Project has or may have, either legal or equitable, and
of any kind or nature whatsoever, for fees, expenses, and costs incurred in the Litigation.
Force Majeure
40.

A force majeure event is any event outside the reasonable control of the Port 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 the Port timely notifies Waste

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Action Project of the event; the steps that the Port will take to perform the task; the projected
time that will be needed to complete the task; and the measures that have been taken or will be
taken to prevent or minimize any impacts to stormwater quality resulting from delay in
completing the task.

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The Port will notify Waste Action Project of the occurrence of a force majeure event as soon

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as reasonably possible but, in any case, no later than fifteen (15) days after the Port becomes aware

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

CONSENT DECREE: No. 3:17-CV-05445-BHS - 12

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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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;

b.

Earthquakes, landslides, fire, floods;

c.

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

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 the Port from a government authority

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

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approval is not granted or is delayed, and where the Port has timely and in

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good faith sought the permit or approval; and

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h.

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Litigation, arbitration, or mediation that causes delay.

Dispute Resolution
41.

This Court retains jurisdiction over this matter. And, while this Consent 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 regarding the terms or conditions of this Consent Decree. In the event of a
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 Such a meeting should be held as soon as practical, but must be held within

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thirty (30) days after notice of a request for such a meeting to the other party and its counsel of

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record. If no resolution is reached at that meeting or within thirty (30) days of the Notice, either

CONSENT DECREE: No. 3:17-CV-05445-BHS - 13

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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party may file a motion with this Court to resolve the dispute. The provisions of section 505(d) of

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the Clean Water Act, 33 U.S.C. § 1365(d), regarding awards of costs of litigation (including

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reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, will
apply to any proceedings seeking to enforce the terms and conditions of this Consent Decree.

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42.

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 forty-five

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

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

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by the parties, Waste Action Project will serve copies of it upon the Administration of the U.S. EPA

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and the Attorney General, with a copy to the Port.
43.

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

years after that date, or upon completion of all obligations imposed by this Consent Decree,

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whichever is later.

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44.

Both parties have participated in drafting this Consent Decree.

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45.

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

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46.

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 agree
to continue negotiations in good faith in an attempt to cure any objection raised by the Court to
entry of this Consent Decree.
47.

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

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

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

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overnight courier, with all fees prepaid; or (4) email. For a notice or other communication regarding

CONSENT DECREE: No. 3:17-CV-05445-BHS - 14

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]

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

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

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paragraph 47.
If to Waste Action Project:

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Greg Wingard
Waste Action Project
P.O. Box 9281
Covington, WA 98042
[e-mail]

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And to:

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Alyssa Englebrecht
Richard Smith
Smith & Lowney PLLC
2317 East John St.
Seattle, WA 98112
email: [e-mail], [e-mail]

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If to the Port:

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Sam Gibboney
Executive Director
Port of Olympia
606 Columbia St. NW, Suite 300
Olympia, WA 98501
[e-mail]
And to:

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Heather L. Burgess
Phillips Burgess, PLLC
724 Columbia St. NW, Suite 320
Olympia, WA 9850 I
[e-mail]

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A notice or other communication regarding this Consent Decree will be effective when

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

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

CONSENT DECREE: No. 3:17-CV-05445-BHS - 15

Smith & Lowney, p.l.l.c.
2317 East John St.
Seattle, Washington 98112
[phone]