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Puget Soundkeeper Alliance v. Rainier Petroleum Corp.

United States District Court, W.D. Washington

December 19, 2017

PUGET SOUNDKEEPER ALLIANCE, Plaintiff,
v.
RAINIER PETROLEUM CORP, Defendant.

          ORDER ON MOTION TO ENFORCE AND MODIFY CONSENT DECREE

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiff Puget Soundkeeper Alliance's ("Soundkeeper") motion to enforce and modify the consent decree and for leave to conduct discovery. (Mot. (Dkt. #101).) The court has considered the motion, the submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. The court also held an evidentiary hearing and heard the arguments of counsel on // December 13, 2017. (12/13/17 Min. Entry (Dkt. # 123).) Being fully advised, the court GRANTS in part and DENIES in part the motion for the reasons set forth below.

         II. BACKGROUND

         On June 6, 2014, Soundkeeper filed this lawsuit against Defendant Rainier Petroleum Corporation ("Rainier") under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (Compl. (Dkt. #1).) Soundkeeper alleged that Rainier violated the CWA and various provisions of Rainier's National Pollution Discharge Elimination System ("NPDES") general permits for stormwater discharges. (Id. ¶ 1.) Soundkeeper alleged that Rainier's violations were due to industrial activities at Rainier's Pier 15 facility in Seattle, Washington ("the Facility"), which caused polluted stormwater discharges to enter Elliot Bay, a navigable water. (Id. ¶¶ 1, 19.) Soundkeeper asserted that Rainier's stormwater discharge exceeded its permits "each day during which there [wa]s 0.1 inch or greater precipitation." (Id. ¶ 20.)

         Rainier leases the Facility and Pier 15 from Exxon Mobil ("Exxon") and operates on the western side of the pier. (Kovacich Decl. (Dkt. # 107) ¶¶ 3-4.) Shell operates on the eastern side of the pier. (Id. ¶ 4.) The Facility covers between one and two acres and includes a truck loading rack, a parking area, a tank farm, the western half of the pier, and three buildings-a boiler building, a warehouse, and an administrative building. (See 2d Horner Decl. (Dkt. # 25) ¶¶ 11-12; 2d Tonry Decl. (Dkt. # 27) ¶ 6, Ex. 5 Stormwater Pollution Prevention Plan ("SWPPP") at 5.) Stormwater from all three buildings' roofs drains through gutters into Elliot Bay. (2d Honler Decl. ¶ 16; see SWPPP at 6, 8-9.) Rainier's tank farm contains six 11, 750-gallon lubricating oil tanks and one 11, 750-gallon oil/water separator tank, is surrounded by a concrete containment berm, and has a pervious gravel floor. (See 2d Horner Decl. ¶¶ 11, 18; Lider Decl. (Dkt. # 28) ¶ 3, Ex. C ("Lider Report") at 4-5; SWPPP at 5, 7.)

         Rainier uses the western half of the pier to dispense and receive diesel fuel and lubricants to and from ships, barges, and other marine vessels. (See 2d Horner Decl. ¶ 12; SWPPP at 6.) Rainier asserts that it conducts fueling operations on the pier only in areas surrounded by containment dikes. (See Rainier Mot. for Partial SJ (Dkt. # 29) at 15.) Stormwater from these areas drains into catch basins, is pumped into the 11, 750-gallon oil/water separator tank, and then drains into a sanitary sewer. (See 2d Horner Decl. ¶ 13.) Outside the diked area are eight small drains covered by grates and one larger hole in the pier, all of which drain directly to Elliot Bay. (See 2d Horner Decl. ¶ 15, Attach. A at 1, 13; SWPPP at 6; Lider Decl. ¶ 2, Ex. B at 23.)

         Before trial, the parties reached a settlement in the form of a proposed consent decree. (Prop. Consent Decree (Dkt. # 98-1).) On March 3, 2016, the court entered the consent decree ("Consent Decree" or "Decree"). (Consent Decree (Dkt. # 100).) The Consent Decree requires Rainier to undertake a number of environmental restoration and mitigation projects by certain deadlines. (See Consent Decree ¶¶ 7(a)-(m).) The Decree also requires Rainier to pay $540, 000, divided between the Puget Sound Stewardship and Mitigation Fund of the Rose Foundation for Communities and the Environment ("the Rose Foundation") and Soundkeeper's attorneys' fees. (Id. ¶¶ 9(a)-(b).)

         The parties agree that Rainier has completed many of the tasks required by the Consent Decree. (Resp. (Dkt. # 104) at 16 ("Rainier complied with all items of the consent decree except for item 7(f)"); see generally Mot.) At issue is Rainier's level of compliance with Paragraph 7(f) and whether Rainier's noncompliance is excused by a force majeure event pursuant to Paragraph 10(c).

         Paragraph 7(f) requires the following:

Not later than June 30[], 2016, Rainier Petroleum will implement measures to prevent any stormwater from the portion of Pier 15 (also known as the Facility's fueling dock or pier) on which Rainier Petroleum operates (approximately the western half of the pier) from discharging to Elliott Bay. Rainier Petroleum will plug existing holes in its pier that presently discharge directly to Elliott Bay, install curbs, berms, and/or barriers as required to prevent sheet flow of stormwater from its portion of the pier to Elliott Bay, and otherwise ensure adequate stormwater collection and conveyance infrastructure exists to capture the stormwater from the portion of the pier on which Rainier Petroleum operates and direct it to the sanitary sewer. Not later than June 30, 2016, Rainier Petroleum will send Soundkeeper written confirmation describing the measures taken to implement the requirements of this paragraph.

(Consent Decree ¶ 7(f)).

         "A force majeure event is any event outside the reasonable control of Rainier Petroleum that causes a delay in performing tasks required by this decree that cannot be cured by due diligence." (Id. ¶ 10.) Examples of a force majeure event include "[a]ctions or inactions of third parties over which [Rainier] has no control." (Id. ¶ 10(c).) A delay caused by a force majeure event is not a violation of the Consent Decree as long as Rainer "notifies Soundkeeper of the event; the steps that Rainier ... 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." (Id. ¶ 10.) If a force majeure event occurs, Rainier must notify Soundkeeper "as soon as reasonably possible but, in any case, no later than fifteen days after the occurrence of the event." (Id.) The Consent Decree requires such notifications to be made in writing, which includes email. (Id. ¶ 17.)

         After submitting the proposed consent decree, Rainier took steps to fulfill the Decree's required restoration and mitigation projects. (See, e.g., Kovacich Decl. ¶¶ 5-7.) Because Rainier leases the pier from Exxon, Rainier's Dan Kovacich[1] contacted Exxon on January 13, 2016, to request permission for the pier modifications pursuant to Paragraph 7(f). (Id. ¶ 5.) At that time, Exxon "was not agreeable to the structural pier modifications required to implement the drainage without investigating the modifications in more detail." (Id.) The court did not enter the Consent Decree until March 3, 2016. Mr. Kovacich states that he followed up with Exxon about the modifications required under Paragraph 7(f) again on February 11, 2016, and April 13, 2016. (Id. ¶¶ 6, 8.) Each time, Exxon withheld its consent to pier modifications until Rainier presented modification plans that Exxon could investigate. (Id.)

         On May 5, 2016, Rainier representatives met with Soundkeeper representatives. (Id. ¶ 9; Auer Decl. (Dkt. # 105) ¶ 4.) At this meeting, Mr. Kovacich and Mike Auer[2]told Soundkeeper about "the challenges Rainier was facing with obtaining approval from Exxon Mobil to do the improvements" and Rainier's "trouble obtaining permission from its dock partner, Shell." (Kovacich Decl. ¶ 9; Auer Decl. ¶ 4.) At the December 13, 2017, evidentiary hearing, Katelyn Kinn[3] of Soundkeeper explained that, although Rainier told Soundkeeper at the May 5, 2016, meeting that it was having difficulties complying the Paragraph 7(f), Rainier did not give any details on these difficulties. Nonetheless, based on this meeting, Rainier believed "Soundkeeper acknowledged that there were challenges beyond Rainier's reasonable control and agreed to forego enforcing Item 7f of the Consent Decree pending Rainier getting satisfactory stormwater sampling results from one or two 'substantially identical' dock holes as determined by Ecology." (Auer Decl. ¶ 5.) Soundkeeper claims it never agreed to forego enforcing Paragraph 7(f). (Kinn Decl. ¶ 8.) Rather, Soundkeeper "agreed that it would accept a less expensive treatment option" than what Paragraph 7(f) originally required "so long as [it was] certified by an engineer to meet permit benchmarks if Rainier Petroleum would agree to waive" a certain permit condition. (Id. ¶ 6.) Rainier's outside counsel, however, failed to respond after the parties agreed, preventing the parties from memorializing this suggested modification. (Id.)

         Rainier and Soundkeeper met again on June 3, 2016. (Auer Decl. ¶ 6; Kinn Decl. ¶ 8.) During this meeting, Rainier conveyed that "Shell, which operates on and leases the eastern half of Pier 15 from ExxonMobil[], would not agree to cooperate on any pier upgrades." (Kinn Decl. ¶ 8.) Soundkeeper emphasized that Rainier "was not on track to fulfill consent decree requirement 7.f. and that [] Soundkeeper could not and would not agree to forego enforcement of this requirement." (Id.)

         On June 7, 2016, Mr. Auer followed up with Soundkeeper via email, stating:

Regarding our Pier water discussion, we have experienced difficulties unforeseen when we entered the Consent Decree agreement and beyond our control. Our path towards satisfying stipulation 7.f. of our agreement requiring this pier water be redirected has been problematic due to parties such as our wastewater permitting agency King County, our landlord Exxon Mobil, and our dock partner Shell. As discussed, we would like to avoid ... potentially a force majeure situation.

(Auer Decl. ¶ 4, Ex. B at 9; see also Kinn Decl. ¶ 9.) The June 7, 2016, email between Mr. Auer and Ms. Kinn is the first time Rainier recorded its view of a force majeure event in writing.

         Also in that June 7 email, Mr. Auer suggested that Rainier "implement operational [best management practices] to ensure pollutant parameters for all benchmarks are met, " which consisted of "routine sweeping of the facility surfaces" and additional sampling. (Auer Decl. ¶ 4, Ex. B at 9.) Ms. Kinn responded on June 10, 2016, that "Rainier's suggestions to sweep and sample runoff from the pier are an excellent starting point, " but "unlikely" to be "enough on its own to balance Soundkeeper's interests." (Id. at 5.) Ms. Kinn also explained that "Soundkeeper may be willing to consider potential alternatives" to the terms of Paragraph 7(f), "but any change to this requirement will require Rainier to agree to an alternative of substantial value to Soundkeeper (and to water quality)." (Id. at 5; see Kinn Decl. ¶ 10.) Mr. Auer contends that "[b]ased on [Rainier's] May 5, 2016, June 3, 2016, and June 10, 2016, discussions with Soundkeeper, Rainier moved forward with implementing operational and structural [best management practices] at the pier to mitigate any potential damage caused by Exxon Mobil withholding permission for the improvements." (Auer Decl. ¶ 8.)

         Between May 2016 and January 2017, Rainier alleges that it had "numerous interactions" with consultants regarding pier modifications, although it is not clear what those interactions resulted in. (Id.) By the end of 2016, Soundkeeper was convinced that Rainier had "no plan" to come into compliance with Paragraph 7(f). (See Kinn Decl. ¶ 15 ("Throughout 2016, none of the communications that I received from Mr. Kovacich or Mr. Auer indicated to me that Rainier [] had made any apparent progress toward capturing and treating or diverting its pier runoff.").) Thus, on January 3, 2017-five months after Rainier was required to fully implement Paragraph 7(f)-Soundkeeper invoked the Consent Decree's dispute resolution provision. (1st Tonry Decl. (Dkt. #103) ¶4, Ex.2.)

         The parties met again on January 30, 2017. (Kovacich Decl. ¶ 11; Auer Decl. ¶ 12; 1st Tonry Decl. ¶ 5.) At that meeting, Mr. Kovacich and Mr. Auer contend that Rainier reiterated its difficulties with Exxon, Shell, and the County. (Kovacich Decl. ¶ 11; Auer Decl. ¶ 12; see also Id. ¶ 3, Ex. A at 2 (stating via email on February 6, 2017, that Rainier told Soundkeeper on January 30, 2017, that "there are some challenges outside Maxum's reasonable control with our landlord ExxonMobil, our fellow pier operator Shell, and potentially King County who has voiced concern over the additional water volume to their already taxed sewer system").) "Rainier indicated that these were actions/events outside of its control but that it would continue moving towards implementing the improvements in an effort to satisfy the consent decree." (Kovacich Decl. ¶ 11.) Rainier contends that it told Soundkeeper it had an engineer working on the modifications and that "it was optimistic that if the necessary approvals and permits were obtained, ... Rainier could implement the modifications by September 30, 2017." (Id.) Rainier claims that Soundkeeper did not object to this timeline. (Id.) According to Soundkeeper's outside counsel, Claire Tonry, Rainier "did not have a proposal for coming into compliance with the Consent Decree and was hoping that Soundkeeper could come up with a solution for the problem." (1st Tonry Decl. ¶ 5.)

         After the January 2017 meeting, Rainier worked with contractors on items related to the pier. (Auer Decl. ¶¶ 13-15.) In April 2017, Rainier began collecting contractor bids for a stormwater containment system. (Id. ¶ 14). On May 26, 2017, Rainier obtained project bids. And on July 12, 2017, Exxon gave Rainier permission to begin the work required under Paragraph 7(f) on September 1, 2017. (Kovacich Decl. ¶ 15.) At the December 13, 2017 evidentiary hearing, Rainier testified that, as of November 2017, it has all necessary permits from the City of Seattle ("the City") and King County ("the County") and all necessary permission from third-parties to complete the Paragraph 7(f) pier modifications.

         On July 27, 2017, Soundkeeper brought the instant motion, contending that Rainier is in violation of Paragraph 7(f) of the Consent Decree.[4] (See Mot.) Soundkeeper requests that the court find Rainier in civil contempt for violating Paragraph 7(f), impose monetary sanctions, award attorneys' fees and costs, and permit limited discovery to resolve any factual disputes. (See id.) Soundkeeper also seeks a modification of Paragraph 7(f) to permit Rainier to discharge stormwater from Pier 15 if it first treats the stormwater and to extend the termination date of the Consent Decree until one year after Rainier complies with Paragraph 7(f). (Id. at 13.)

         Rainier agrees that it has not met the requirements of Paragraph 7(f), but contends that force majeure events have prevented it from doing so and that it has nonetheless substantially complied. (Resp. at 15-18.) Rainier therefore opposes a civil contempt order, sanctions, attorneys' fees, and reopening discovery. (Id. at 15-22.) Rainier agrees, however, that the court should modify Paragraph 7(f). (Id. at 22-23.) The court now addresses the motion.

         III. ANALYSIS

         A. Preliminary Matters

         Before the court analyzes the merits of Soundkeeper's motion, it addresses Rainier's over-length response brief and surreply, as well as the parties' evidentiary objections.

         1- Over-Length Response Brief

         Soundkeeper asks the court to "strike the portion of Rainier's response brief that exceeds [Local Civil Rule] 7(e)(4)'s twelve-page limit." (Reply (Dkt. # 109) at 2.) The Local Civil Rules for the Western District of Washington provide that certain "motions noted under LCR 7(d)(3) and briefs in opposition shall not exceed twelve pages." Local Rules W.D. Wash. LCR 7(e)(4). Over-length briefs are "disfavored." Id. LCR 7(f).

         "The court may refuse to consider any text, including footnotes, which is not included within the page limits." Id. LCR 7(e)(6). To file a brief longer than the rule allows, a party must file a motion with the court "no later than three days before the underlying motion or brief is due" and "request a ...


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