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United States v. Jeld-Wen, Inc.

United States District Court, W.D. Washington

April 5, 2018

UNITED STATES OF AMERICA, STATE OF WASHINGTON THROUGH THE WASHINGTON DEPARTMENT OF ECOLOGY, SUQUAMISH TRIBE, AND TULALIP TRIBES, Plaintiffs,
v.
JELD-WEN, INC., KIMBERLY CLARK CORP., AND WEYERHAEUSER NR COMPANY, Defendants.

          FOR THE UNITED STATES OF AMERICA: Jeffrey H. Wood United States Department of Justice Acting Assistant Attorney General Environment and Natural Resources Division Danica Anderson Glaser Trial Attorney United States Department of Justice Environment and Natural Resources

          FOR THE STATE OF WASHINGTON: Maia Bellon Director Washington State Department of Ecology John A. Level Assistant Attorney General State of Washington

          FOR THE SUQUAMISH TRIBE: Leonard Foreman, Chairman. Melody Allen

          FOR THE TULALIP TRIBES: Marie Zackuse Chairwoman The Tuialip Kimberly Ordon, Timothy Brewer Tuialip Tribes Office of the Reservation Attorney

          FORJELD-WEN, INC: Laura' W. Doerre Executive Vice President, General Counsel and Chief Compliance Officer

          JELD-WEN, INC.

          FOR KIMBERLY CLARK CORP: Sandra MacQuillan, Senior Vice President Chief Supply Vhire officer Authorized agent to accept service

          FOR WEYERHAEUSER NR COMPANY: Kristen Sawin Vice President, Corporate and Government Affairs Weyerhaeuser NR Company

          CONSENT DECREE

         I. BACKGROUND

         A. The Plaintiffs have filed a complaint in this matter against Jeld-Wen, Inc., Kimberly Clark Corp., and Weyerhaeuser NR Company (“Settling Defendants”) pursuant to the Model Toxics Control Act (“MTCA”), chapter 70.105D RCW; chapter 90.48 RCW; Section 311 of the Clean Water Act (“CWA”), 33 U.S.C. § 1321; and Section 1002(b)(2)(A) of the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2702(b)(2)(A), for Natural Resource Damages as a result of releases of hazardous substances and discharges of oil into the Port Gardner Bay Area. The Port Gardner Bay Area (as defined below and depicted in Appendix A) includes the lower Snohomish River, Everett Waterfront, East Waterway, and a portion of Possession Sound in and near Everett, Washington. Several industrial facilities, including those currently or formerly owned and/or operated by the Settling Defendants (identified in Appendix B), have contributed hazardous substances and oil to the Port Gardner Bay Area.

         B. The United States Department of Commerce, acting through the National Oceanic and Atmospheric Administration (“NOAA”); the United States Department of the Interior (“DOI”); the Washington Department of Ecology on behalf of the State of Washington; the Suquamish Tribe; and the Tulalip Tribes (collectively, “the Trustees” and, individually, a “Trustee”), under the authority of Section 107(f) of CERCLA, 42 U.S.C. § 9607(f), Section 1006(b) of OPA, 33 U.S.C. § 2706(b), 40 C.F.R. Part 300, subpart G, and RCW 70.105D.040(2), serve as trustees for natural resources for the assessment and recovery of damages for injury to, destruction of, or loss of Natural Resources under their trusteeship.

         C. Investigations conducted by the Trustees and others have detected hazardous substances in the sediments, soils and groundwater of the Port Gardner Bay Area, including, but not limited to, polychlorinated dibenzodioxins and furans (“dioxins”), polychlorinated biphenyls (“PCBs”), organochlorine pesticides and related products, polycyclic aromatic hydrocarbons (“PAHs”), metals (including lead, mercury, copper, chromium, and arsenic), volatile and semi-volatile organic compounds (including 4-methylphenol), perchlorate, herbicides, organic solvents, antifouling agents such as tributyltin and other butyltins, and wood waste degradation products (including sulfide and ammonia).

         D. Plaintiffs allege that hazardous substances and oil released to the Port Gardner Bay Area from the facilities currently or formerly owned and/or operated by Settling Defendants, identified in Appendix B, have caused injury to, destruction of and loss of natural resources under Plaintiffs' trusteeship, including fish, shellfish, wildlife, marine sediments, and resources of cultural significance. Plaintiffs further allege that each of them and the public have suffered the loss of natural resource services (including ecological services as well as direct and passive human use losses) as a consequence of those injuries.

         E. Although the Trustees initiated but have not completed a full natural resource damage assessment for the Port Gardner Bay Area, the Trustees have developed and analyzed information sufficient to support a settlement that is fair, reasonable and in the public interest.

         F. To facilitate resolving natural resource damage claims, relying upon the results of remedial investigations, regulatory standards, and scientific literature, the Trustees developed an estimate of the amount of injury to natural resources that had occurred as a result of releases of hazardous substances and discharges of oil to the Port Gardner Bay Area. The Trustees quantified the effects of the injuries in terms of the losses of ecological services over affected areas and over time, discounted to a present value. Plaintiffs used discounted service acre-years (“DSAYs”) to describe both the scale of the injuries, and the amount of habitat restoration they are seeking to compensate for the injuries.

         G. Plaintiffs assert that hazardous substance releases and oil discharges to the Port Gardner Bay Area have become dispersed and commingled to the extent that the effects of releases of one Potentially Responsible Party (“PRP”) cannot be readily distinguished from another's. Plaintiffs further assert that the circumstances of the contamination make all PRPs who contributed to the contamination jointly and severally liable for all injuries to natural resources that have resulted from the contamination. As a consequence, Plaintiffs assert the right to recover for the loss of all the calculated DSAYs and associated damage assessment costs from any PRP. Without prejudice to their position and solely for purposes of facilitating settlement with individual PRPs, the Plaintiffs have determined that settling with the Settling Defendants for a portion of the natural resource damages attributable to all Port Gardner Bay Area sources would result in a fair and equitable resolution of Plaintiffs' claims. Plaintiffs have agreed to settle their claims against Settling Defendants for the equivalent of 400 DSAYs (117 for Jeld-Wen, 153 for Kimberly-Clark, and 130 for Weyerhaeuser), of the total 1, 019 DSAYs estimated by the Trustees for the Port Gardner Bay Area, and a portion of the Trustees' unreimbursed damage assessment costs. The Trustees have estimated the cash damages equivalent of the DSAYs allocated to Settling Defendants to total $3, 946, 633.

         H. The Parties agree, and this Court by entering this Consent Decree finds, that this Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, that this Decree will expedite the restoration and protection of natural resources at and near the Port Gardner Bay Area, that the damage payments to be provided under this Decree constitute appropriate actions necessary to protect and restore the natural resources allegedly injured by releases or threatened releases of hazardous substances by the Settling Defendants, and that this Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed

         II. JURISDICTION AND VENUE

         1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1345 and 1367, and 42 U.S.C. §§ 9607 and 9613(b) and 33 U.S.C. § 2717(b). The Court also has personal jurisdiction over the Settling Defendants. Solely for purposes of this Consent Decree and the underlying Complaint, the Settling Defendants waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District. The Settling Defendants shall not challenge the terms of this Decree or this Court's jurisdiction to enter and enforce this Decree.

         III. PARTIES BOUND

         2. This Consent Decree is binding upon the United States, the State, the Suquamish Tribe, the Tulalip Tribes, and upon each Settling Defendant and their successors and assigns. Any change in ownership or corporate or other legal status of a Settling Defendant, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter such Settling Defendant's responsibilities under this Consent Decree.

         IV. DEFINITIONS

         3. Unless otherwise expressly provided in this Consent Decree, terms used in this Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or such regulations. Whenever terms listed below are used in this Consent Decree, or Appendices A or B, the following definitions shall apply solely for purposes of this Consent Decree:

a. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.
b. “Commerce” shall mean the United States Department of Commerce and its successor departments, agencies, or instrumentalities.
c. “Consent Decree” or “Decree” shall mean this consent decree, including Appendices A and B.
d. “Day” or “day” shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day falls on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.
e. “DOI” shall mean the United States Department of the Interior and its successor departments, agencies, or instrumentalities.
f. “DSAYs” means discounted service acre-years, the metric established by the Trustees to quantify the scale of Natural Resource Damages liability associated with the Port Gardner Bay Area and the natural resource restoration efforts needed to compensate for injury to, destruction or loss of natural resources giving rise to liability.
g. “Effective Date” shall mean the date upon which the approval of this Consent Decree is recorded on the Court's docket.
h. “Natural Resource Damages” shall mean any damages, including the costs of damage assessment, recoverable by the Trustees under Section 107 of CERCLA, 42 U.S.C. § 9607; Chapter 70.105D RCW; Section 311 of the Clean Water Act (“CWA”), 33 U.S.C. § 1321; Chapter 90.48 RCW; and Section 1002(b)(2) of the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2702(b)(2), for injury to, destruction of, loss of, loss of use of, or impairment of Natural Resources, including, but not limited to: (i) the costs of assessing such injury, destruction, or loss or impairment of natural resources; (ii) the costs of restoration, rehabilitation, or replacement of injured or lost natural resources or of acquisition of equivalent resources; (iii) the costs of planning such restoration activities; (iv) compensation for injury, destruction, loss, impairment, diminution in value, or loss of use of natural resources; and (v) each of the categories of recoverable damages described in 43 C.F.R. § 11.15, and applicable State or tribal law, resulting from releases of hazardous substances or discharges of oil to the Port Gardner Bay Area, where such release or discharge occurred on or before the Effective Date of this Consent Decree at the locations identified for each Settling Defendant on Appendix B.
i. “Natural Resources” shall mean that definition as provided in 42 U.S.C.§ 9601(16).
j. “MTCA” shall mean the Model Toxics Control Act, Chapter 70.105D
RCW.
k. “Parties” shall mean the United States, the State of Washington, the Suquamish Tribe, the Tulalip Tribes, and the Settling Defendants.
l. “Plaintiffs” shall mean the United States, the State of Washington, the Suquamish Tribe, and the Tulalip Tribes.
m. “Port Gardner Bay Area” shall mean the area depicted on Appendix A, attached, including the lower Snohomish River, Everett Waterfront, East Waterway, and a portion of Possession Sound in and near Everett, Washington.
n. “Settling Defendant” shall mean each one of, and “Settling Defendants” shall mean all of, Jeld-Wen, Inc., Kimberly Clark Corp., and Weyerhaeuser NR Company.
o. “State” shall mean the State of Washington, and the Washington State Department of Ecology.
p. “Tribes” shall mean the Suquamish Tribe and the Tulalip Tribes.
q. “Trustees” shall mean Commerce, acting through NOAA; DOI; the Washington State Department of Ecology, on behalf of the State of Washington; the Suquamish Tribe; and the Tulalip Tribes.
r. “United States” shall mean the United States of America and each department, agency, and instrumentality of the United States, including Commerce and DOI.

         V. GENERAL PROVISIONS

         4. The Complaint states claims upon which relief may be granted.

         5. Nothing in this Decree shall be construed as an admission of fact or liability by Settling Defendants for any claims or allegations made in the Complaint or in this Decree nor shall Settling Defendants' entry of this Decree be construed as agreement with the claims or allegations made in the Complaint or in this Decree.

         6. This Decree shall not be used as evidence of Settling Defendants' alleged liability in any action or proceeding other than an action or proceeding to enforce the terms of this Decree.

         VI. PAST ASSESSMENT COST REIMBURSEMENT

         7. Within thirty (30) days of the Effective Date of this Decree, Settling Defendants shall pay the amounts for past assessment costs incurred by the Trustees through May 27, 2017 (for NOAA) and June 30, 2017 (for DOI, the State and the Tribes), as described below:

         a. Payments for Assessment Costs Incurred by the United States.

         1. Within 30 days after the Effective Date, Settling Defendants shall pay the amounts below to the United States for assessment costs incurred by the United States:

Jeld-Wen: $70, 320
Kimberly-Clark: $91, 801
Weyerhaeuser: $78, 133

         Payment shall be made by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of Justice account, in accordance with instructions provided to Settling Defendants by the Financial Litigation Unit (“FLU”) of the United States Attorney's Office for the Western District of Washington after the Effective Date. The payment instructions provided by the FLU will include a Consolidated Debt Collection System (“CDCS”) number, which Defendant shall use to identify all payments required to be made in accordance with this Consent Decree. The FLU will provide the payment instructions to:

For Jeld-Wen:
Dwayne Arino Vice President, Environmental Affairs JELD-WEN, Inc.
3250 Lakeport Blvd.
Klamath Falls OR 97601
541-883-3373
darino@jeldwen.com
and
Kenneth Luther, JD
Environmental Claims Examiner
Brandywine Group
Insurance & Reinsurance Companies
2603 Camino Ramon, Suite 300
San Ramon, CA 94583
925-598-6144 kluther@chubb.com
For Kimberly-Clark:
Cindy Jernigan
Kimberly-Clark Corporation
Global Sustainability, Senior Remediation Specialist
1400 Holcomb Bridge Road; Roswell, GA 30076
(office) 770/587-7014
(email) Cindy.Jernigan@kcc.com, (fax) 920/969-4591
For Weyerhaeuser:
Carol Wiseman
Remediation Project Manager
Weyerhaeuser NR Company
220 Occidental Avenue ...

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