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Puget Soundkeeper Alliance v. Total Terminals International, LLC

United States District Court, W.D. Washington, Seattle

November 7, 2019

PUGET SOUNDKEEPER ALLIANCE, Plaintiff,
v.
TOTAL TERMINALS INTERNATIONAL, LLC; and PORT OF SEATTLE, Defendants.

          King & Spalding LLP Adam Sowatzka, pro hac vice, John Fortuna, pro hac vice, Joseph Akrotirianakis, pro hac vice Attorneys for Defendant.

          Smith & Lowney PLLC Alyssa Englebrecht, WSBA #46773 Knoll Lowney, WSBA #23457 Attorneys for Plaintiff Puget Soundkeeper Alliance.

          Bauer Moynihan & Johnson LLP Matthew Crane, WSBA #18003 Attorneys for Defendant Total Terminals International, LLC

          Stoel Rives LLP Maren Norton, WSBA # 35434 Beth Ginsberg, WSBA #18523 Veronica Keithley, WSBA #52784 Attorneys for Defendant Port of Seattle

          CONSENT DECREE

          HON. ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE

         I. STIPULATIONS

         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, TO, 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.

         I. ORDER AND DECREE

         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:

a. Until such time as TTI vacates the Facility and ceases all operations there, TTI and the Port will comply with all conditions of the NPDES permit and any successor, modified, or replacement permit authorizing discharges of stormwater associated with industrial activity from the Facility. Until such time as TTI vacates the Facility and ceases all operations there, TTI and/or the Port will continue to implement all monitoring and best management practices ("BMPs") which are currently being implemented at the Facility;
b. Within thirty (30) days after TTI's departure from the Facility, the Port and/or TTI will inspect and clean all stormwater lines, catch basins, and the existing treatment systems, at the Facility. Within thirty (30) days after TTI's departure from the facility, TTI and/or the Port will sweep the entire Facility and properly dispose of all swept material. Within ten (10) days after the date upon which TTI and/or the Port has completed the inspection, stormwater system cleaning, and sweeping obligations described in this paragraph, the Port will permit Soundkeeper and its consultant to inspect the Facility to confirm that the Port and TTI have completed the work described above, TTI has ceased all industrial activity, properly vacated the facility, and has obtained Ecology's concurrence that TTI has terminated its coverage under the NPDES permit. The parties will work cooperatively to find a mutually agreeable time for Soundkeeper's inspection. If for any reason Soundkeeper is unable to enter the Facility by the deadline provided in this paragraph, TTI and the Port's obligation to permit Soundkeeper onto the Facility will continue and the parties will cooperate to schedule a time for Soundkeeper's entry as soon as practicable.
c. The Port will perform regular and necessary maintenance on the Facility's existing treatment systems per the Operation & Maintenance manual's recommendations and more frequently as needed to provide optimal treatment function, until any of the following occurs:
i. The existing treatment systems are replaced with another properly engineered and approved treatment system, or;
ii. A new tenant commences marine cargo operations or other permit triggering industrial operations at the Facility in any basin, applies for and receives Industrial Stormwater General Permit ("ISGP") coverage at the Facility, and assumes full responsibility for maintaining the treatment system(s), or;
iii. A new tenant commences cruise ship terminal operations in any basin in which the existing treatment system(s) is currently installed, implements the BMPs identified in paragraph 7.d.i, below, and assumes full responsibility for maintaining the treatment system(s).
d. In the event that all or a portion of the Facility becomes a cruise ship terminal, the Port will, for that portion of the Facility:
i. Implement the BMPs for cruise ship operations identified in paragraph 8 of the July 6, 2016 consent decree entered in Puget Soundkeeper Alliance v. Cruise Terminals of America, LLC et al, W.D. Wash. No. 2:14-cv- 00476, a copy of which is attached hereto as Attachment A, at this Facility immediately upon commencement of operations as a cruise ship terminal. The Port will either implement these BMPs itself, or the Port will require its tenant or a designee to implement these BMPs. If the Port chooses to require its tenant to implement these BMPs, the implementation of these BMPs will be an enforceable provision of the Port's lease with that tenant. Any failure to implement the BMPs in Attachment A will be a violation of this Consent Decree. The Port, its designee, or its tenant will provide Soundkeeper with a report twice per year, consistent with Paragraph 9 of Attachment A, and which additionally documents the implementation of such BMPs with photos provided to Soundkeeper. The requirement to implement such BMPs shall specifically be made an obligation of the tenant in any future lease between the Port and cruise terminal tenants. In consideration of these obligations, Soundkeeper covenants not to sue the Port, or materially support, financially or otherwise, any other person to sue the Port, for any of the discharges associated with cruise-related activities.[1]
ii. Include in any request for proposals for a cruise operator, or otherwise notify potential cruise operators in writing with a copy to Soundkeeper, prior to commencing cruise operations, that ISGP coverage may be required at this Facility.
e. In the event that all or a portion of the Facility is used for marine cargo operations which have vehicle maintenance activity, equipment cleaning operations, or airport deicing operations, or other permit-triggering industrial operations, [2] the Port will, for the entire footprint[3] of the portion of the Facility which is being leased as a marine cargo terminal or other permit-triggering operation, and areas otherwise used by the tenant including all exclusive and preferential use areas identified in the lease:
i. Sweep, or require that the future tenant sweep, the wharf area[4] of the Facility, as identified on the map attached hereto as Attachment B, so that the entire surface ...

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