ROBERT S. LASNIK, District Judge.
WHEREAS, Plaintiff Puget Soundkeeper Alliance ("Soundkeeper") filed an amended complaint against Defendants Total Terminals International, LLC ("TTI") and the Port of Seattle (the "Port") (collectively "Defendants") alleging violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., relating to discharges of stormwater from TTI's and the Port's facility located at 401 Alaskan Way S, Seattle, WA 98104 (the "Facility"), and seeking declaratory and injunctive relief, civil penalties, and attorneys' fees and costs.
WHEREAS, TTI will be vacating the Facility, terminating its lease with the Port, and ceasing operation at the Facility by December 31, 2019.
WHEREAS, as of the date of entry of this Consent Decree, the Port does not yet have a replacement tenant for TTI at the Facility. The Port anticipates that a portion of the Terminal 46 site may become a cruise ship terminal and the remaining portion may have marine cargo operations.
WHEREAS, Soundkeeper, TTI, 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 of resolving this action.
WHEREAS, Soundkeeper, TTI, and the Port stipulate to the entry of this Consent Decree without trial or adjudication of any issues of fact or law regarding Soundkeeper's claims that remain undecided, and without any admissions other than those expressly provided in this Consent Decree.
DATED this 11th day of September, 2019
THIS MATTER came before the Court upon the foregoing Stipulations of the parties. Having considered the Stipulations and the promises set forth below, the Court hereby ORDERS, ADJUDGES, and DECREES as follows:
1. This Court has jurisdiction over the parties and subject matter of this action.
2. Each signatory for the parties certifies for that party that he or she is fully authorized by the party or parties he or she represents to enter into the terms and conditions of this Consent Decree and to legally bind the party or parties, their successors in interest and assigns of the parties to it.
3. This Consent Decree applies to and binds the parties and their successors and assigns.
4. This Consent Decree and any injunctive relief ordered within will apply to the operation, oversight, or both by the Port and TTI of the Facility, which is currently subject to National Pollutant Discharge Elimination System Permit No. WAR000465 (the "NPDES permit").
5. This Consent Decree is a full and complete settlement, covenant not to sue, and release of all the claims alleged in the amended complaint, and all other claims known and unknown, contingent or otherwise, for any acts or omissions, 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 against TTI, its parent, affiliates, subsidiaries, employees, agents, successors and assigns and/or the Port, its affiliates, employees, or agents. These claims are released and dismissed with prejudice.
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 Soundkeeper in this case or of any fact or conclusion of law related to those allegations that remain undecided, nor evidence of any wrongdoing or misconduct on the part of TTI or the Port.
7. TTI and the Port agree to the following terms and conditions in full and complete satisfaction of all the claims covered by this decree:
8. In the spirit of demonstrating a cooperative resolution to the community, the Parties will endeavor to work together in good faith in issuing a joint press release regarding filing of this Consent Decree. The party planning to issue such release shall give the other parties 48 hours opportunity to review the draft and provide their respective input. If any party objects to any language of that draft press release within one (1) business day (24 hours) (or the same time on the following business day if over a weekend or holiday) of receiving the draft, the parties shall in good faith work together to resolve the issue(s) prior to issuing the press release. If, after 72 hours, the parties are unable to agree on a joint press release, each is free to issue their own respective press release. Nothing in this decree limits any of the parties from issuing press releases around other past or future milestones in the course of this case and/or settlement. Nothing in this decree in any way limits statements that can be made to the press.
9. Not later than ten (10) days after the entry of this Consent Decree by this Court, TTI will pay a total of $735,000 to the Rose Foundation for projects to improve the water quality of Elliott Bay, as described in
10. Within ten (10) days of entry of this Consent Decree by the Court, TTI will pay a total of $165,000 dollars to cover Soundkeeper's litigation fees, expenses, and costs (including reasonable attorney, expert witness and post-Consent Decree fees) by check payable and mailed to Smith & Lowney, PLLC, 2317 East John St., Seattle, WA 98112, attn: Knoll Lowney. TTI's and the Port's payment will be in full and complete satisfaction of any claims Soundkeeper has or may have, either legal or equitable, and of any kind or nature whatsoever, for fees, expenses, and costs incurred in the Litigation.
11. The payments described in Paragraphs 8 and 9 above shall be in full and complete satisfaction of any claims Soundkeeper has or may have against the Port or TTI, either legal or equitable, and of any kind or nature whatsoever, for fees, expenses, and cost incurred in this litigation, or for civil penalties, or payments in lieu of civil penalties pursuant to a supplemental environmental project under the CWA.
12. With the exception of actions to enforce this Consent Decree, and in consideration of TTI's and the Port's obligations under this Consent Decree, for the term of this Consent Decree, as defined in paragraph 15, below, Soundkeeper covenants not to sue TTI, the Port, the Northwest Seaport Alliance as agent of the Port, or materially support, financially or otherwise, any person to sue TTI, the Port, the Northwest Seaport Alliance as agent of the Port, for any and all claims alleged against TTI or the Port in the Amended Complaint and all other claims, known and unknown, existing as of the date of entry of this Consent Decree, that could be asserted against TTI or the Port arising under the Clean Water Act, 33 U.S.C. §§ 1251-1387 with respect to the Facility.
13. A force majeure event is any event outside the reasonable control of TTI and/or the Port that causes a delay in performing tasks required by this decree that cannot be cured by due diligence. Delay in performance of a task required by this decree caused by a force majeure event is not a failure to comply with the terms of this decree, provided that TTI and/or the Port timely notifies Soundkeeper of the event; the steps that TTI and/or 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.
TTI and/or the Port 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 the occurrence 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
14. 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 first attempt to resolve the dispute by meeting to discuss the dispute and any suggested measures for resolving the dispute. The provisions of CWA section 505(d), 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 proceedings seeking to enforce the terms and conditions of this Consent Decree.
15. 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 (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. EPA. Therefore, upon the filing of this Consent Decree by the parties, Soundkeeper will serve copies of it upon the Administration of the U.S. EPA and the Attorney General, with a copy to TTI and the Port.
16. This Consent Decree will take effect upon entry by this Court. It terminates three (3) years after that date.
17. All parties have participated in drafting this Consent Decree.
18. This Consent Decree may be modified only upon the approval of the Court.
19. 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 in an attempt to cure any objection raised by the Court to entry of this Consent Decree.
20. Notifications required by this Consent Decree must be in writing. The sending party 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; or (3) a nationally recognized overnight courier, with all fees prepaid. For a notice or other communication regarding this 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 17.
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.
THIS MATTER comes before the Court upon the parties' joint stipulated motion for entry of a consent decree (Dkt. No. 121). Having considered the stipulations and the promises and agreements set forth below, the Court ORDERS, ADJUDGES, AND DECREES as follows:
1. The Court has jurisdiction over the parties and subject matter of this action.
2. Each signatory for the parties certifies that he or she is authorized to enter into the agreements set forth below for that party.
3. This Consent Decree applies to the cruise terminal at Pier 66, 2225 Alaskan Way, Seattle, Washington 98121 (the "Facility").
4. This Consent Decree binds Soundkeeper's successors and assigns and any successor owner or operator of the Facility.
5. The parties are concurrently executing an agreement with respect to implementation of best management practices at the cruise terminal at Pier 91, 2001 West Garfield St., Seattle, Washington 98119 ("Pier 91 Agreement"). Certain terms of the Pier 91 Agreement are referenced in this Consent Decree, but the Pier 91 Agreement sets forth the exclusive terms of, remedy for enforcement of, and resolution of disputes arising under the Pier 91 Agreement.
6. This Consent Decree is a full and complete settlement of the claims in the First Amended Complaint and all other claims known and unknown and existing as of the date of entry of this Consent Decree that could be asserted against CTA or the Port under the Clean Water Act, 33 U.S.C. §§ 1251-1387, arising from ownership or operations of the Facility (the "Claims"). The Claims are released and dismissed with prejudice. Enforcement of this decree is Soundkeeper's exclusive remedy for any violation of its terms.
7. This Consent Decree is a settlement of disputed facts and law. It is not an admission or adjudication regarding any allegations by Soundkeeper in this case or of any fact or conclusion of law related to those allegations. It is not an admission by CTA or the Port of any liability and is not evidence of any wrongdoing or misconduct on the part of CTA or the Port.
8. As partial consideration for the releases and settlement of claims as provided herein, the Port agrees that it, its tenant, or a designee will implement the following best management practices (BMPs) for cruise operations at the Facility on Pier 66, after entry of the Consent Decree:
9. The Port must provide Soundkeeper with a report twice a year documenting the implementation of the above BMPs on Pier 66. The report will include the following descriptions: (a) the Port's implementation of each BMP at Pier 66; (b) the entities involved in cruise-related activities who were informed about the BMPs by the Port; and (c) the Port's knowledge regarding the implementation of each BMP by these other entities. The report will identify the author. The Port will obtain information on the implementation of the BMPs to the extent it is reasonably practical from Port internal work orders and information it obtains from the cruise terminal facility operator. This list is not exhaustive or intended to limit the information the Port may provide in the reports.
10. As part of the consideration for this Consent Decree the Port and CTA will implement the BMPs set forth in Paragraph 8 for cruise-related activities at Pier 91, and provide the same reports identified in paragraph 9, above, as will be reflected in the separately enforceable Pier 91 Agreement.
11. Within ten (10) days following the entry of the Consent Decree, the Port shall pay Two Hundred Fifty Thousand Dollars ($250,000) to Soundkeeper. The Port's payments shall be in full and complete satisfaction of any claims Soundkeeper has or may have against the Port, either legal or equitable, and of any kind of nature whatsoever, for fees, expenses, and costs incurred in this litigation, or for civil penalties under the Clean Water Act. Soundkeeper may allocate the payment as it deems appropriate. The parties agree to have payment made by check to the order of "Puget Soundkeeper Alliance c/o Smith and Lowney Trust Account" and deposited in the Smith and Lowney Trust account. The Port will mail the check to 2317 East John Street Seattle, WA 98112, Attn. Knoll Lowney.
12. Within ten (10) days of entry of this Consent Decree, CTA will pay Soundkeeper Two Hundred Fifty Thousand Dollars ($250,000). CTA's payment will be in full and complete satisfaction of any claims Soundkeeper has or may have against CTA, either legal or equitable, and of any kind of nature whatsoever, for fees, expenses, and costs incurred in this litigation, or for civil penalties under the Clean Water Act. Soundkeeper may allocate the payment as it deems appropriate. The parties agree to have payment made by check to the order of "Puget Soundkeeper Alliance c/o Smith and Lowney Trust Account" and deposited in the Smith and Lowney Trust account. CTA will mail the check to 2317 East John Street Seattle, WA 98112, Attn. Knoll Lowney.
13. In consideration of CTA's and the Port's obligations under this Consent Decree, for the term of this Consent Decree, as defined in paragraph 17, below, Soundkeeper covenants not to sue CTA, CTA's members, the Port, or any successor owner or operator of the Facility, or associate with, or support financially or otherwise any other person to sue CTA, CTA's members, or the Port for any of the discharges associated with the cruise-related activities at the Facility that Soundkeeper alleged in its expert reports or pleadings should have necessitated CTA, CTA's members, and/or the Port to obtain coverage for the Facility under Ecology's ISGP.
14. A force majeure event is any event outside the reasonable control of the Port that causes a delay in performing tasks required by this decree that cannot be cured by due diligence. Any delay in performance by the Port 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 decree, provided that the Port notifies Soundkeeper 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.
The Port will notify Soundkeeper of the occurrence of a force majeure event as soon as reasonably possible but, in any case, no later than fifteen days after the occurrence 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.
15. This Consent Decree takes effect on the date it is entered by the Court. It terminates 10 years after the date of entry unless good cause exists for earlier termination based upon either a material change of cruise-related activities that are subject to the above BMPs, or a material change in the water quality regulations regarding these activities. If either party believes that there has been a material change in either the cruise-terminal activities or water quality regulations, that party may ask the Court under its continuing jurisdiction to terminate the Consent Decree on that basis. Before applying to the Court for this determination, the parties must first provide written notice to the other parties of the material change(s) alleged to have occurred and then meet and attempt to resolve any dispute regarding the allegations and discuss any suggested measures for resolving the dispute. A meeting should be held as soon as practical after providing the written notice but must be held within 30 days after such notice, provided, however, that if the party(ies) who opposes early termination fails to meet with the party who proposes early termination within 30 days after such notice, the party(ies) who proposes early termination may ask the Court to terminate the Consent Decree without further delay. Any notice as required by this paragraph must be sent via first class mail to the party and to its counsel of record.
16. This Consent Decree may not be used as evidence in any proceeding or as an admission or adjudication with respect to any allegations in the Complaint or any fact or conclusion of law with respect to any matter alleged in or arising out of the Complaint.
17. The Court retains jurisdiction over this matter. While this decree remains in force, this case may be reopened without filing fee so that the parties may apply to the Court for any further order that may be necessary to construe, carry out, enforce compliance, and/or resolve any dispute regarding the terms or conditions of the Consent Decree until termination of the Consent Decree. Before applying to the Court for relief, the parties must first attempt to resolve any dispute regarding implementation of, or compliance with, this Consent Decree by: 1) providing written notice to the other parties of the dispute; and 2) meeting to discuss the dispute and any suggested measures for resolving the dispute. Such a meeting should be held as soon as practical but must be held within 30 days after notice of a request for such a meeting to the other party and its counsel of record. No application may be made to the Court until after the notice and meeting required under this paragraph except that the party(ies) who provide notice of a dispute may apply to the Court without further delay if the other party(ies) fail to meet within 30 days after notice of a request for meeting. The prevailing or substantially prevailing party in any proceedings to enforce the terms and conditions of this Consent Decree will be entitled to its reasonable attorneys' fees and costs.
18. 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 to which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the U.S. Attorney General and the Administrator of the U.S. EPA. Therefore, upon the signing of this Consent Decree by the parties, Soundkeeper will serve copies of it upon the Administrator of the U.S. EPA and the Attorney General.
19. The parties have participated in drafting this decree. The terms of this Consent Decree will be construed without regard to who drafted the various provisions and will be construed as though both parties participated equally in the drafting. Accordingly, any rule of construction that a document is to be construed against the drafting party is not applicable to this Consent Decree.
20. This Consent Decree may be modified only upon the approval of the Court.
21. If for any reason the Court declines to approve this Consent Decree in the form presented, this Consent Decree is voidable at the discretion of any 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.
22. Notifications required by this Consent Decree must be in writing. The sending party 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) e-mail. For a notice or other communication regarding this Consent Decree to be valid, it must be delivered to the receiving party at the addresses listed below or to any other address designated by the receiving party in a notice in accordance with this paragraph.
A notice or other communication regarding this Consent Decree is effective when received, unless the notice or other communication is received after 5:00 p.m., in which case 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 via e-mail, upon receipt of a response by the party providing notice or other communication regarding this Consent Decree.
DATED this 6th day of July 2016.
Dear Mr. Swegle,
This letter is intended to provide assurance that I have received the draft Consent Decree between Puget Soundkeeper Alliance and Total Terminal International, LLC ("TTI") and that I am authorized by my Board of Directors to make the following binding commitments on behalf of the Rose Foundation.
The Rose Foundation is a 501(c)(3) public charity (tax ID#94-3179772). Its mission is to support grassroots initiatives to inspire community action to protect the environment, consumers and public health. To fulfill this mission, the Rose Foundation conducts the following activities:
Within this broad range of activities, all of the Rose Foundation's work revolves around one or more of the following strategic themes:
The Rose Foundation is governed by a Board of Directors. Grant applicants are required to submit written proposals, which must include at a minimum specific information about the goals, activities and projected outcomes of the proposed project, background about the charitable applicant, budget information, and a specific funding request. The Foundation may require additional information in order to fully evaluate the application. Applications are first screened by Foundation staff. Staff then makes recommendations to the Foundation Board for action. The Foundation requires all projects to submit written reports within one year of receipt of the grant award describing work conducted under the grant, thereby providing an accountability mechanism over funds awarded. Annual audits by the certified public accounting firm Maze and Associates are posted on the Foundation's website www.rosefdn.org.
I hope this provides you with the information you require. Please do not hesitate to contact me with any questions, or for additional information at (510) 658-0702 or tlittle@rosefdn.org.
Docket Clerk for the Honorable Robert L. Lasnik
Re: Puget Soundkeeper Alliance v. Total Terminals International, LLC et al. — No. 2:18-cv-00540-RSL; Waiting period before entry of consent decree
Dear Docket Clerk:
This is submitted with the proposed Consent Decree and Joint Motion for Entry of Consent Decree for the above-captioned case. Please note that, pursuant to the explicit direction of the Clean Water Act, the Consent Decree should not be entered by the Court until a 45-day Department of Justice and EPA review period has expired. Thus, the hearing is noted accordingly. Please do not have this Consent Decree entered before that time. Please call if you have any question about this. Thank you.
