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United States v. Trident Seafoods Corp.

United States District Court, W.D. Washington

May 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TRIDENT SEAFOODS CORPORATION, Defendant.

          FOR THE UNITED STATES OF AMERICA: NATHANIEL DOUGLAS Deputy Chief Environmental Enforcement Sections Environment and Natural Resources Division U.S Department of Justice.

          FREDERICK S PHILLIPS Senior Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice ANNETTE L. HAYES United States Attorney Western District of Washington

          BRIAN KIPNIS Assistant United States Attorney Western District of Washington

          FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY:

          ALLYN STERN Regional Counsel U.S. Environmental Protection

          KIMBERLY A. OWENS Assistant Regional Counsel U.S. Environmental Protection Agency, Region 10 Office of Regional Counsel

          FOR TRIDENT SEAFOODS CORPORATION: JOSEPH T. PLESHA General Counsel Trident Seafoods Corporation

          FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY: ALLYN STRN Regional Counsel U.S. Environmental Protection Agency, Region 10 Date

          KIMBER'LY A. OWENS Assistant Regional Counsel U.S. Environmental Protection Agency, Region 10 Office of Regional Counsel

          FOR TRIDENT SEAFOODS CORPORATION: JOSEPH PLESHA General Counsel Trident Seafoods Corporation

          FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY: ALLYN STERN Regional Counsel U.S. Environmental Protection Agency, Region 10

          KIMBERLY A. OWENS Assistant Regional Counsel U.S. Environmental Protection Agency,

          FOR TRIDENT SEAFOODS CORPORATION: JOSEPH T. PLESHA General Counsel Trident Seafoods Corporation

         Table of Contents

         I. JURISDICTION AND VENUE.............................................. .......... .. ......... ........ ..... .......... 1

         II. APPLICABILITY........................................................................................................ ....... 2

         III. DEFINITIONS, ........, ..... . . .... ....... . . .. .... ...... ................... ........... ............................................3

         IV. CIVIL PENALTY..... .................................................... .................................................. .... 5

         V. COMPLIANCE REQUIREMENTS...................................................................................6

         VI. INJUNCTIVE RELIEF AT SAND POINT FACILITY.................................................... 6

         VII. INJUNCTIVE RELIEF AT WRANGELL FACILITY..... . .. ...... .. . . . .... .. ...... .. .. ... . ..... ..... ... 13

         VIII. INDEPENDENT AUDIT OF ENVIRONMENTAL MANAGEMENT SYSTEM.........15

         IX. APPROVAL OF DELIVERABLES.................................................... ........ .. ..... ..... ........ 16

         X. REPORTING REQUIREMENTS ........ ...... ...... ........ ... ..... ........... .......... ............... .. .. ... ..... 17

         XI. STIPULATED PENALTIES ..... ..................................................................................... 19

         XII. FORCE MAJEURE.......................................................................................................... 23

         XIII. DISPUTE RESOLUTION............................................................................................ 25

         XIV. INFORMATION COLLECTION AND RETENTION. ... .......... ..... .. .... ..... .................... 28

         XV. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS......................................... 30

         XVI. COSTS.... .... . . .. .. ................................................................................... ....................... .. 31

         XVII. NOTICES. . . ................ ..... . ..... .. ...... ......... .... ....... ... . ...... .. . ..................................................32

         XVIII. EFFECTIVE DATE. .... ..... ...... ...... ............. ..... ...... ..... . ..... .... ..... . .... ........................ .. .. ....... 33

         XIX. RETENTION OF JURISDICTION.. .. ...... . ........ .. ..... . .... .......... ..... ............. ........ .... ........ ... 34

         XX. MODIFICATION. .................. ........ ....... ... .. .... ......... .. ...... ............ ............ .. ... .. ..... .... ......... 34

         XXL TERMINATION.. ... ...........34

         XXII. PUBLIC PARTICIPATION. ........... . ... .. .. ....... . .... .. ... .. ....... .... ..................... .......... ..... ....... 35

         XXIII. SIGNATORIES/SERVICE. ............. .............................................................................. 36

         XXIV. INTEGRATION ........... ............. ....................36

         XXV. FINAL JUDGMENT..................................................... ........ ..... .. ......... .......................... 37

          CONSENT DECREE

          MARSHA J. PECHMAN UNITED STATES SENIOR DISTRICT JUDGE

         Plaintiff United States of America. on behalf of the United States Environmental Protection Agency ("EPA"), has filed a complaint in this action concurrently with this Consent Decree, alleging that Defendant Trident Seafoods Corporation violated Sections 301 and 402 of the Clean Water Act ("Act"), 33 U.S.C. §§1311 and 1342.

         The Complaint against Defendant alleges that Defendant violated the conditions and limitations of its National Pollutant Discharge Elimination System ("NPDES") permits, issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342, including limits on the "zones of deposit" (seafood waste piles), annual and daily discharge volume limits, grind size requirements for seafood waste, requirements for proper handling and treating of seafood waste prior to discharge, and monitoring and reporting requirements, for its seafood processing facilities in Sand Point, Alaska and Wrangell, Alaska.

         The Parties recognize, and the Court by entering the Consent Decree finds, that the Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that the Consent Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

         I. JURISDICTION AND VENUE

         1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 309(b) of the Act, 33 U.S.C. § 1319(b), and over the Parties. Venue lies in this District pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b), because the Defendant is located and is doing business in this judicial district. For purposes of the Decree, or any action to enforce the Decree, Defendant consents to the Court's jurisdiction over the Decree and any such action and over Defendant and consents to venue in this judicial district.

         2. For purposes of the Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b).

         II. APPLICABILITY

         3. The obligations of the Consent Decree apply to and are binding upon the United States and upon Defendant and any successors, assigns, or other entities or persons otherwise bound by law.

         4. No transfer of ownership or operation of the Facility, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Defendant of its obligation to ensure that the terms of the Decree are implemented. At least 30 Days prior to such transfer, Defendant shall provide a copy of the Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to EPA, the United States Attorney for the Western District of Washington, and the United States Department of Justice, in accordance with Section XVII (Notices). Any attempt to transfer ownership or operation of the Facility without complying with this Paragraph constitutes a violation of the Decree.

         5. Defendant shall provide a copy of the Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of the Decree, as well as to any contractor retained to perform work required under the Consent Decree. Defendant shall condition any such contract upon performance of the work in conformity with the terms of the Consent Decree.

         6. In any action to enforce the Consent Decree, Defendant shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of the Consent Decree.

         III. DEFINITIONS

         7. Terms used in the Consent Decree that are defined in the Act or in regulations promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in the Decree. Whenever the terms set forth below are used in the Consent Decree, the following definitions shall apply:

         a. "Complaint" shall mean the complaint filed by me United States in this action;

         b. "Consent Decree" or "Decree" shall mean this Consent Decree and all appendices attached hereto;

         c. "Day" shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under the Consent Decree, where the last Day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day;

         d. "Defendant" shall mean Trident Seafoods Corporation;

         e. "EPA" shall mean the United States Environmental Protection Agency and any of its successor departments or agencies;

         f. "Effective Date" shall have the definition provided in Section XVIII;

         g. "Paragraph" shall mean a portion of the Decree identified by an Arabic numeral;

         h. "Parties" shall mean the United States and Defendant;

         i. "Sand Point Facility" shall mean Defendant's seafood processing facility located in Sand Point, Alaska;

         j. "Sand Point Permit" shall mean the individual NPDES Permit No. AK0052787 issued by EPA to Defendant for the Sand Point Facility pursuant to Section 402 of the Act, 33U.S.C.§1342;

         k. "Section" shall mean a portion of the Decree identified by a Roman numeral;

         1. "State" shall mean the State of Alaska;

         m. "United States" shall mean the United States of America, acting on behalf of Jc.Jr.fYy

         n. "Wrangell Facility" shall mean Defendant's seafood processing facility located in Wrangell, Alaska; and

         o. "Wrangell Permit" shall mean the Seafood General Permit and discharge authorization with the unique identifier AK-G52-0058 issued to Defendant for the Wrangell Facility pursuant to Section 402 of the Act, 33 U.S.C. § 1342, p. "Zone of Deposit" shall have the same meaning accorded to it by Sections I.C.2, and IX of the Sand Point Permit and Sections V.C.1.1 and X of the Wrangell Permit.

         IV. CIVIL PENALTY

         8, Within 30 Days after the Effective Date, Defendant shall pay the sum of $297, 000 as a civil penalty, together with interest accruing from November 2, 2017, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging.

         9. Defendant shall pay the civil penalty due via FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice account, in accordance with instructions provided to Defendant 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 the Consent Decree. The FLU will provide the payment instructions to:

Shawn Stokes
5303 Shilshole Ave NW, Seattle WA, 98107
sstokes@tridentseafoods.com

         on behalf of Defendant. Defendant may change the individual to receive payment instructions on its behalf by providing written notice of such change to the United States and EPA in accordance with Section XVII (Notices).

         At the time of payment, Defendant shall send notice that payment has been made: (i) to EPA via email at cinwdacctsreceivable@epa.gov or via regular mail at EPA Cincinnati Finance Office, 26 W. Martin Luther King Drive, Cincinnati, Ohio 45268; (ii) to the United States via email or regular mail in accordance with Section XVII; and (iii) to EPA in accordance with Section XVII. Such notice shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States v. Trident Seafoods Corporation and shall reference the civil action number, CDCS Number and DOJ case number 90-5-1-1-11200.

         10. Defendant shall not deduct any penalties paid under the Decree pursuant to this Section or Section XI (Stipulated Penalties) in calculating its federal income tax.

         V. COMPLIANCE REQUIREMENTS

         11. Defendant shall comply with applicable requirements of the Act, regulations promulgated pursuant to the Act, Sand Point Permit, and Wrangell Permit with respect to the Sand Point Facility and Wrangell Facility.

         VI. INJUNCTIVE RELIEF AT SAND POINT FACILITY

         Pile Removal and Source Reduction

         12. No later than December 31, 2019, Defendant shall remove those portions of the ...


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