Puget Soundkeeper Alliance v. KAG West LLC

Filing 17

CONSENT DECREE re 16 Order Granting 13 Joint Stipulated Motion for Entry of Consent Decree. (Refer to Decree for details.) Signed by District Judge Tiffany M. Cartwright. (CJS)

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HON. TIFFANY M. CARTWRIGHT

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PUGET SOUNDKEEPER ALLIANCE,

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v.

Plaintiff,

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KAG WEST, LLC,

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Defendant.

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__________________________________
I.

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No. 3:23-cv-05949-TMC
CONSENT DECREE

STIPULATIONS

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WHEREAS, Plaintiff Puget Soundkeeper Alliance (“Soundkeeper”) filed a complaint on

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October 23, 2023 against KAG West LLC (“KAG”) (Dkt. 1) alleging violations of the Clean Water

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Act, 33 U.S.C. § 1251, et seq., relating to discharges of stormwater and other pollutants from KAG’s

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trucking facility at 401 E. Alexander Avenue, Tacoma, WA 98421, covered at the time of entry of

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the Consent Decree under NPDES permit no. WAR305116 (the “Facility”), and seeking declaratory

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and injunctive relief, civil penalties, and attorneys’ fees and costs.
WHEREAS, KAG will vacate the facility and cease operations sometime between

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November 30, 2024 and March 2025.

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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WHEREAS, counsel and representatives for Soundkeeper and KAG have engaged in
mediation in an effort to resolve claims against KAG in this litigation.

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WHEREAS, Soundkeeper and KAG (the "Parties") agree that settlement of these matters

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is 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.

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WHEREAS, the Parties stipulate to the entry of this Consent Decree without trial,
adjudication, or admission of any issues of fact or law regarding Soundkeeper's claims or
allegations set forth in its complaint and its sixty-day notice.
DATED this 3rd day of July, 2024
WILLIAMS KASTNER & GIBBS LLP

SMITH & LOWNEY, PLLC

By s/James Bulthuis____ _
James Bulthuis, WSBA #44089
Mark Myers, WSBA #15362
Attorneys for Defendant KAG West
LLC

Bys/Alyssa Koepfien
Alyssa Koepfgen, WSBA #46773
Katelyn Kinn, WSBA #42686
Attorneysfor PlaintiffPuget Soundkeeper Alliance

B��!b.l..�.:......!���­
Jacq e ine A. Musacchia
Executive Vice President & General
Counsel

By
Emilyo�e
C:�it�
Director of Law & Policy

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PUGET SOUNDKEEPER ALLIANCE

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II.

ORDER AND DECREE

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THIS MATIER came before the Court upon the Parties' Joint Motion for Entry of Consent

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Decree and the foregoing Stipulations of the Parties. Having considered the Stipulations and the

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promises set forth below, the Court hereby ORDERS, ADJUDGES, and DECREES as follows:

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CONSENT DECREE
No. 3:23-cv-05949-TMC

SMITH & LOWNEY, F',t..L.C.
231 7 EAST JOHN ST.
SEATTI.E, WABHINl3TON 9B 1 1 2
(206) B60·2B83

4877-2601-3897.3

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

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

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

operation, oversight, or both by KAG of the Facility.
5.

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2.

interest, and assigns of the Parties.

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

enter into the agreement set forth herein and to legally bind the party or parties, their successors in

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

claims in the complaint and the sixty-day notice and all other claims known or unknown
existing as of the date of entry of the Consent Decree that could be asserted under the Clean
Water Act, 33 U.S.C. §§ 1251-1387, arising from operation of the Facility. Upon termination
of this Consent Decree, these claims are released and dismissed with prejudice. KAG’s
payment of attorney’s fees and litigation costs set forth in paragraph 9 of the Consent Decree
will be in full and complete satisfaction of any claims Soundkeeper and Smith & Lowney,
PLLC have or may have, either legal or equitable, known or unknown, and of any kind or
nature whatsoever, for fees, expenses, and costs incurred in the Litigation. Enforcement of
this Consent Decree is Soundkeeper’s exclusive remedy for any violation of its terms. During
the term of the Consent Decree, Soundkeeper will not support, by financial assistance,
personnel time, or otherwise, other lawsuits or potential lawsuits by Soundkeeper’s members

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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or other groups or individuals that could be asserted under the terms of the Industrial
Stormwater General Permit (“ISGP”), arising from operation of the Facility.
6.

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or adjudication regarding any allegations by Soundkeeper 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
KAG or its contractors, customers, or other third parties. KAG agrees to the terms and conditions
identified below in paragraphs 7 - 9 in full and complete satisfaction of all the claims covered by
this Consent Decree:
7.

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This Consent Decree is a settlement of disputed facts and law. It is not an admission

Upon entry of the consent decree, KAG will implement the following injunctive

relief:
a. KAG will adhere to the requirements of the Clean Water Act at the Facility

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and the terms and conditions of the ISGP and any successor or modified

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permits until such time that it completely vacates the Facility.

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b. Until such time as KAG fully vacates the Facility, KAG will, on a quarterly

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basis, electronically forward to Soundkeeper copies of all submissions and

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written communications to and/or from Ecology related to KAG’s ISGP

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coverage for the Facility along with written progress reports that explain

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efforts to comply with the consent decree.

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c. Within thirty (30) days of entry of the Consent Decree, KAG will begin

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either collecting composite flow proportional samples from its Parking Yard

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or sampling from a second sampling point at another catch basin nearest

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CONSENT DECREE
No. 3:23-cv-05949-TMC
4

4877-2601-3897.3

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

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where the largest number of trucks are most often parked, in the approximate

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center close to the northwestern lease boundary. KAG will continue to either

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collect composite flow proportional samples or sample from the second

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sampling point until such time as it fully vacates the Facility.

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d. Within thirty (30) days of entry of the Consent Decree, KAG will remove

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the fuel truck used for on-site fueling.

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e. KAG must comply with the procedures for obtaining a Notice of

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Termination, as identified in ISGP Condition S13.B. KAG must apply for

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Notice of Termination within ten (10) days of fully vacating the Facility.

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8.

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Payment in Lieu of Penalty: Within thirty (30) days of entry of this Consent

Decree, KAG will pay $350,000 (THREE HUNDRED AND FIFTY THOUSAND DOLLARS)
to Puyallup Tribal Fisheries for use solely for the South Prairie Creek Restoration Project, a
salmon habitat restoration project within the Commencement Bay watershed, as described in
Exhibit 1 to this Consent Decree. The check or ACH payment will be made to the order of
Puyallup Tribal Fisheries, and delivered to Puyallup Tribal Fisheries, Attention: Russ Ladley,
6824 Pioneer Way E. Puyallup WA 98371. Payment will include the following reference in a
cover letter or on the check: “Consent Decree, Puget Soundkeeper Alliance v. KAG West LLC,
W.D. Wash. No. 3:23-cv-05949-TMC.” KAG will send a copy of the check or ACH remittance
confirmations and cover letters, if any, to Soundkeeper and its counsel, pursuant to the notice
provisions in paragraph 18.
9.

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Within ten (10) days of entry of this Consent Decree by the Court, KAG will

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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pay $119,000 (one-hundred and nineteen thousand dollars) to Soundkeeper to cover
Soundkeeper’s litigation fees, expenses, and costs (including reasonable attorneys and expert
witness fees) by check payable and mailed to Smith & Lowney, PLLC, 2317 East John St.,
Seattle, WA 98112, attn: Alyssa Koepfgen.
10.

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causes a delay in performing tasks required by this Consent Decree that cannot be cured by due
diligence. Delay in performance of a task required by this Consent Decree caused by a force
majeure event is not a failure to comply with the terms of this Consent Decree, provided that
KAG timely notifies Soundkeeper of the event, the steps that KAG 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.
11.

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

KAG will notify Soundkeeper of the occurrence of a force majeure event as soon as

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

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a.

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

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Earthquakes, landslides, fire, floods;

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

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CONSENT DECREE
No. 3:23-cv-05949-TMC
6

4877-2601-3897.3

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

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d.

Unusually adverse weather conditions;

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Restraint by court order or order of public authority;

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Strikes;

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Any permit or other approval sought by KAG from a government
authority to implement any of the actions required by this Consent

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Decree where such approval is not granted or is delayed, and where KAG

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has timely and in good faith sought the permit or approval;

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h.

Litigation, arbitration, or mediation that causes delay;

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Epidemics and pandemics, including but not limited to, COVID-19
related delays;

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j.

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Supply chain issues and delays.

This Court retains jurisdiction over this matter, while this Consent Decree remains

in force. While this Consent Decree remains in force, this case may be reopened without filing fees
so that the Parties may apply to the Court for any further order that may be necessary to enforce
compliance with this Consent 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 first attempt to resolve the dispute by meeting to discuss the
dispute and any suggested measures for resolving the dispute. Such a meeting will be held as soon
as practical but must be held within thirty (30) days after notice of a request for such a meeting to
the other Party and its counsel of record. If no resolution is reached at that meeting or within thirty
(30) days of the Notice, either Party may file a motion with this Court to resolve the dispute. The

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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provisions of section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), regarding awards of costs
of litigation (including reasonable attorney and expert witness fees) to any prevailing or
substantially prevailing party, will apply to any additional court proceedings necessary to enforce
the terms and conditions of this Consent Decree.
13.

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can be entered in a Clean Water Act suit in which the United States is not a party prior to forty-five
(45) days following the receipt of a copy of the proposed consent judgment by the U.S. Attorney
General and the Administrator of the U.S. Environmental Protection Agency (“EPA”). Therefore,
upon the filing of this Consent Decree by the parties, Soundkeeper will serve copies of it upon the
Administrator of the U.S. EPA and the U.S. Attorney General.
14.

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Both Parties have participated in drafting this Consent Decree.

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This Consent Decree constitutes the entire agreement between the Parties. There are

no other or further agreements, either written or verbal. This Consent Decree may be modified only
upon a writing signed by both Parties and the approval of the Court.
17.

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

terminates upon Ecology’s issuance of a Notice of Termination pursuant to ISGP Condition S13.

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

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

form presented, this Consent Decree is voidable at the discretion of either Party. The Parties agree
to continue negotiations in good faith to cure any objection raised by the Court to entry of this
Consent Decree.
18.

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

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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may use any of the following methods of delivery: (1) personal delivery; (2) registered or certified
mail, in each case return receipt requested and postage prepaid; (3) a nationally recognized
overnight courier, with all fees prepaid; or (4) email. For a notice or other communication regarding
this Consent Decree to be valid, it must be delivered to the receiving Party at the one or more
addresses listed below or to any other address designated by the receiving Party in a notice in
accordance with this paragraph.

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If to Puget Soundkeeper Alliance:

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Emily Gonzalez
Puget Soundkeeper Alliance
130 Nickerson Street, Suite 107
Seattle, WA 98109
Email: [e-mail]

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And to:

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Alyssa Koepfgen
Katelyn Kinn
Smith & Lowney PLLC
2317 East John St.
Seattle, WA 98112
Email:
[e-mail]
[e-mail]

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If to KAG:

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Jacqueline A. Musacchia, Esq.
Executive Vice President & General Counsel
The Kenan Advantage Group, Inc.
4366 Mt. Pleasant St. NW
North Canton, Ohio 44720
Email: [e-mail]

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CONSENT DECREE
No. 3:23-cv-05949-TMC
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4877-2601-3897.3

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

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And to:

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James Bulthuis
Mark Myers
Williams Kastner
601 W 1st Avenue, Suite 1442
Spokane, WA 99201-3825
Email:
[e-mail]
[e-mail]

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Any party identified in the notice provisions above may affect a change in the notice address by
providing a notice complying with these provisions to all other parties listed. 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 next business day. A notice or other
communication will be deemed to have been received: (a) if it is delivered in person or sent by
registered or certified mail or by nationally recognized overnight courier, upon receipt as indicated
by the date on the signed receipt; or (b) if the receiving party rejects or otherwise refuses to accept
it, or if it cannot be delivered because of a change in address for which no notice was given, then
upon that rejection, refusal, or inability to deliver; or (c) for notice provided by e-mail, upon receipt
of a response by the party providing notice or other communication regarding this Consent Decree.

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DATED this 28th day of August, 2024.

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CONSENT DECREE
No. 3:23-cv-05949-TMC
10

4877-2601-3897.3

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

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Presented by:

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WILLIAMS KASTNER

SMITH & LOWNEY, PLLC

By _s/James Bulthuis_________
James Bulthuis, WSBA #44089
Mark Myers, WSBA #15362
Attorneys for Defendant KAG

By s/Alyssa Koepfgen_________
Alyssa Koepfgen, WSBA #46773
Katelyn Kinn, WSBA #42686
Attorneys for Plaintiff Puget Soundkeeper Alliance

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CONSENT DECREE
No. 3:23-cv-05949-TMC
11

4877-2601-3897.3

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

Exhibit 1