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Puget Soundkeeper Alliance v. Cargill, Inc.

United States District Court, W.D. Washington

October 23, 2017





         Plaintiffs Puget Soundkeeper Alliance and RE Sources for Sustainable Communities (together, "Soundkeeper") sent a sixty day notice of intent to sue letter to Defendant Cargill, Inc., d/b/a Cargill Animal Nutrition and/or Ferndale Grain ("Cargill") on May 24, 2017, alleging violations of the Clean Water Act, 33 U.S.C. § 1251 et seq., relating to discharges of stormwater from Cargill's Facility in Ferndale, Washington and seeking declaratory and injunctive relief, civil penalties and attorneys' fees and costs.

         Soundkeeper and Cargill agree that settlement of these matters is in the best interests of the parties and the public, and that entry of this Consent Decree is the most appropriate means of resolving this action.

         Soundkeeper and Cargill stipulate to the entry of this Consent Decree without trial, adjudication, or admission; of any additional issues of fact; or law regarding Soundkeeper's claims or allegations set forth, in its complaint and its sixty-day notice.


         THIS MATTER came before tie 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, arid 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 authorized to enter into: the agreements set forth below.

         3. This Consent Decree applies to and binds 'the parties and their successors and assigns, 4. This Consent Decree applies to the operation, oversight, or both by Defendant Cargill of its Facility at 5744 3rd Ave, Ferndale, Washington (the "Facility"). Attachment A is a depiction of the Facility that identifies areas discussed in this Consent Decree. The provisions of this Consent Decree do not concern the use of the lot to the north of the Facility, across Washington Street, which is used by third parties in the course of business with Cargill but not owned or managed by Cargill.

         5. This Consent Decree is a full and complete settlement of the claims in the Complaint and all other claims known and unknown existing as of the date of entry of this Consent Decree, other than those concerning the lot to the North of the facility, that could be asserted under the Clean Water Act, 33 U.S.C. §§ 1251-1387. These claims are released and dismissed with prejudice. Enforcement of this decree is Soundkeeper's exclusive remedy for any violation of its terms.

         6. 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.

         7. Cargill agrees to the following terms and conditions in full and complete satisfaction of the claims covered by this decree:

a. Cargill will comply fully with all conditions of its National Pollutant Discharge Elimination System Permit No. WAROOO355 (the "NPDES permit") and any successor, modified, or replacement permit;
b. Cargill will install additional treatment as described in an engineering report submitted to the Washington State Department of Ecology ("Ecology") dated May 15, 2017. Ecology has not commented on Cargil's engineering report or plan to install additional treatment. Cargill will complete installing and begin operating the additional treatment no later than October 31, 2017;..
c. Cargill will replace filter media in downspout filtration treatment units for the facility as needed;
d. Cargill will repair and replace asphalt when erosion or damage in an area exceeds a 3" depth and is at least 18"xl 8" wide, Cargill will limit its annual expenditure for asphalt repair or replacement under this Consent Decree to $ 15, 000 for the remainder of this calendar year and $6, 000 per calendar year for future years. This paragraph applies to Facility areas "in-use" for production and truck traffic only and does not apply to Facility areas no longer in use nor does it apply to the property East of the tracks or on the rail spur. Cargill will add inspection of asphalt conditions to its monthly stormwater inspection forms;
e. Cargill will continue using its onsite mechanical sweeper Operated by Cargill personnel on an "as-needed" basis. Cargill will contract to have the Facility vacuum swept monthly, November through April, and quarterly during me remainder of the year, or more frequently as Cargill determines is needed. Cargill will have its contractor vacuum sweep Area A (defined as the area south of Cargill buildings on 3rdAvenue where stormwater does not drain to the treatment system) once to remove any accumulated solids. If Cargill resumes using Area A to store materials which may pollute stormwater, Cargill will resume sweeping Area A on the same schedule as the rest of the Facility;
f. Cargill will promptly file a Notice of Intent with Ecology to update the Ferndale Facility's permit coverage to add SIC code 2048 (Prepared Feed and Feed Ingredients for Animals and Fowls, Except Dogs and Cats) to their activity under me ISGP;
i. Cargill will begin sampling for the parameters associated with SIC code 2048, biochemical oxygen demand 5-day, nitrate and nitrite nitrogen, and phosphorous, beginning the Fourth Quarter 2017;
ii. For any parameters that exceed benchmark values reported to Ecology on Cargill's Fourth Quarter 2017 Discharge Monitoring Report (DMR) Cargill will thereafter sample such parameters monthly for twelve months, weather permitting. If the results for Cargill's accelerated sampling for any such parameter meet the benchmark value in two consecutive months, Cargill will resume sampling for each such parameter on a standard quarterly schedule;
g. Cargill will sample treated effluent from roof drain downspout filter units in Area A quarterly and provide those results to Soundkeeper beginning the first stormwater monitoring event after new filter media is installed in the downspout units. Cargill will install new filter media in the downspout units in Area A by October 31, 2017. Cargill will subsequently replace downspout filter media in Area A when zinc levels exceed 90% of the allowable benchmark, and replace such media within 30 days of receiving the exceeding lab results;
h. Not later than October 31, 2017, Cargill will paint or remove the South Wall and the galvanized shed in the southernmost area of the facility;
i. Not later than October 31, 2017, Cargill will treat the discharge from downspout filters on the building along Second Street either with downspout filters or redirecting the drainage to Cargill's centralized treatment system;
j. Not later than October 31, 2017, Cargill will implement applicable BMPs on the lot on the East of the facility; k. Not later than October 31, 2017, Cargill will amend its stormwater ...

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