Waste Action Project v. King's Command Foods LLC

Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 1 of 13 | Hon, Richard A. Jones 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE |] WASTE ACTION PROJECT, ) I ) Plaintiff, ) Case No, 2:19-CV-00015-RAJ 12 Vv. ) 13 ) KING’S COMMAND FOODS, LLC, ) CONSENT DECREE 14 ) Defendant. ) 15 ) | sO 18 I. STIPULATIONS 19 Plaintiff Waste Action Project (“WAP”) filed its lawsuit against King’s Command Foods, || LLC (“King’s Command”) on, January 7, 2019, alleging violations of the Clean Water Act, 33 Hlus.c. § 1251 et seq., relating to discharges of stormwater from King’s Command’s sausage manufacturing and meat preparation Facility in Kent, Washington, and seeking declaratory and injunctive relief, civil penalties, and attorney fees and costs. King’s Command denies the allegations contained in the sixty-day notice and complaint.

WAP and King’s Command 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 CONSENT DECREE ee ee ee I} Case No. 2:19-CV-00015-RAJ SEATTLE, WASHINGTON 98112 p. ] (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 2 of 13 I resolving this action, 2 WAP and King’s Command stipulate to the entry of this Consent Decree without trial, adjudication, or admission of any issues of fact or law regarding WAP’s claims or allegations set forth in its complaint and its sixty-day notice.

7 King’s Command Foods, LLC Waste Action Project Z. yo #, g || By a MGs, te ACPI ts _ 4% |! Title: Arc. hf Greg Wingard .”

10 Title: Executive Director os i G Th 1 ll DATED this of July, 2019.

DATED this 2nd day of July, 2019.

13 i. ORDER AND DECREE 15 THIS MATTER came before the 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, and DECREES as follows: For purposes of this Decree, this court has surisdiction over the parties and subject a9 |} matter of this action.

21 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.

24: 4, This Consent Decree applies to the operation by Defendant King’s Command of its || Facility at 7622 S. 188th St., Kent, Washington, 98032 (the “Facility”.

27 5, This Consent Decree is a full and complete settlement of the claims in the Complaint CONSENT DECREE SMITH & LOWNEY, P.L.L.C. 29 . = 25) 7 EAST JOHN Sr. Case No. 2:19-CV-00015-RAJ SEATTLE, WASHINGTON 98112 p.2 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 3 of 13 and all other claims known and unknown 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. These claims are released || and dismissed with prejudice. Enforcement of this Consent Decree is WAP’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 WAP in this case or of any fact or conclusion of law || related to those allegations, nor evidence of any wrongdoing on the part of King’s Command. bs King’s Command agrees to the following terms and conditions in full and complete satisfaction of the claims covered by this Decree: 12 A. King’s Command will comply fully with all conditions of its National 13 Pollutant Discharge Elimination System Permit No. WAR005574 (the “NPDES permit’) and any successor, modified, or replacement permit, and the stormwater pollution prevention plan (“SWPPP”) adopted thereunder, for the duration of the Consent Decree; 7 B. By August 31, 2019, King’s Command will revise its SWPPP to include the 18 below-described improvements, including treatment, corrective actions, best management 19 practices, and monitoring procedures. King’s Command will fully implement the SWPPP “0 throughout the Consent Decree effective period.

C. King’s Command will order stormwater catch basin inserts containing media 23 engineered to target zinc, turbidity, copper, and oil throughout the site by April 30, 2019.

24 King’s Command will install each catch basin insert within two weeks of receipt. Currently 25 excluded from this paragraph are catch basins 2 and 4. Should catch basins 2 and 4 cease to have solid covers, King’s Command will promptly order catch basin inserts consistent with CONSENT DECREE SMITH & LOWNEY, P.L.L.C. |! Case No. 2:19-CV-00015-RAJ SEATTLE, WagNINGTON SET 12 p.3 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 4 of 13 those at the rest of the Facility and will install such inserts within two weeks of receipt.

D, For the duration of the Consent Decree, King’s Command will maintain all corrective actions and best management practices (“BMPs”), including catch-basin inserts or 4 . . other media designed to capture or treat pollutants in stormwater, in accordance with 6 maintenance procedures specified by the manufacturer or treatment technology developer. q BE, King’s Command will document and report maintenance inspections as 8 required by Condition $7 of the NPDES Permit.

9 i oy: . .

F. King’s Command will implement the following BMPs: (1) keep dumpster bins that are not totally covered closed with a storm- 12 proof lid when not in use by August 31, 2019 or cover with an 13 overhead awning by October 4, 2019; 14 (il) vacuum sweep at least once per month, or more often if required by the NPDES permit, by August 31, 2019. Areas where the vacuum sweeper 17 cannot be used to remove accumulated sediment will be swept by other 18 means, which may include hand-sweeping. If the Facility exceeds any 19 stormwater pollutant parameter benchmark, the Facility will increase 20 . . . vacuum sweeping to twice per month for the three following months; (ili) certify by September |, 2019, that metal surfaces exposed to 23 stormwater are not galvanized, including stored metal, metal-based 24 equipment, structures, and structure appurtenances. If exposed 25 . _ ; galvanized surfaces are present, King’s Command will store these surfaces under cover by September |, 2019, for the effective period of CONSENT DECREE SMITH & LOWNEY, P.L.L.C. 2317 EAST JOHN ST. 29 Case No. 2:19-CV-00015-RAJ SEATTLE, WASHINGTON 98112 p. 4 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 5 of 13 | the Consent Decree, or implement another appropriate zinc reduction 2 BMP (such as painting or coating) designed to reduce the likelihood of 3 stormwater exposure to zinc by November 1, 2019. Excluded from 4 this paragraph are the ammonia condenser and the chain-link fencing. (iv) continue to implement BMPs targeted toward reducing fecal coliform, including rodent traps; covered dumpsters; and a bird deterrent 8 microphone. Additionally, King’s Command will screen or block gaps in the roof eaves in the trash disposal area where birds could 1 potentially nest or roost.

12 (v) repair or replace significantly cracked asphalt as needed, including 13 when erosion or damage exceeds a 1” depth. King’s Command will 14 repair or replace cracked and/or damaged asphalt in the areas . surrounding the maintenance shop and wastewater building by August 7 31, 2019, including all asphalt within the chain-link-fence surrounding 18 those buildings. The buildings are identified in Exhibit A, King’s 19 Command Site Map — Drainage.

20 ec “ce cathe thee (vi) inspect throughout the Facility for building siding that is corroded, rusted, or rusting by August 31, 2019. King’s Command will repair areas that are corroded as needed, including at least once by October 1, 24 2019.

2 (vii) King’s Command will develop and implement a BMP to prevent wash water from entering Catch Basin 10 (labelled “CB10” on Exhibit A) 28 CONSENT DECREE SMITH & LOWNEY, P.L.L.C. || Case No. 2:19-CV-00015-RA] Buxeroe, WAeHINETaN 9H 112 : (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 6 of 13 near the loading dock by August 31, 2019. (vill) If King’s Command’s stormwater sample is compromised by a 3 municipal stormwater system backflow, King’s Command will install 4 . . a backflow prevention device, check valve, weir/notch dam, or other 6 device designed to eliminate or minimize comingling of King’s 7 Command’s stormwater with other sources at or near Catch Basin | 8 (labeled “CB1” on Exhibit A) within three months of a compromised 9 stormwater sample. If installation of such a device is not feasible (e.g., because it may cause flooding at the Facility) or would be ineffective in preventing the comingling of King’s Command’s stormwater with LZ Sling 5 13 other sources, King’s Command will move the sampling point for Mt CB1 to a different representative location.

G. King’s Command’s SWPPP will be revised to add wash water in the loading 7 platform area as a potential pollutant by August 31, 2019.

18 H. King’s Command’s SWPPP site map will be revised to correctly identify 19 industrial activities including receiving areas and areas of long-term storage by August 31, 2019.

L; King’s Command’s SWPPP will list associated pollutants in the “Inventory of 33 Materials” by August 31, 2019.

24 a, Including discharge sampling and analysis required by the Permit, King’s 23 .

Command will collect and analyze samples (in a manner consistent with Permit requirements) monthly for sampling points where there is discharge for CONSENT DECREE SMITH & LOWNEY, P.L.L.C. 2317 East JOHN ST. 29 Case No. 2:19-CV-00015-RAJ SEATTLE, WASHINGTON 98112 p. 6 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 7 of 13 I each month from October, 2019, through January, 2020.

2 Kk. For the duration of the Consent Decree, King’s Command will continue to 3 ~ contract with a qualified expert to perform all stormwater sampling required 4 by the Permit.

Lis King’s Command will cap or plug the white pipe located to the south of the 7 Exhaust Filter by July 1, 2019.

8 M. King’s Command will not file a modification of permit coverage that would result in removal of receiving water stormwater discharge limitations associated with Clean Water Act Section 303(d) listing for the duration of the 12 Consent decree.

13 N. For the duration of the Consent Decree, King’s Command will provide to 14 WAP copies of all stormwater discharge sample lab analysis reports; discharge monitoring reports; written (including electronic) documents to and 17 from Ecology pursuant to the NPDES permit; and updated SWPPPs.

18 Documentation will be forwarded to WAP on a quarterly basis no later than 19 the thirtieth day following the end of each calendar quarter. For clarity, stormwater discharge sample lab analysis reports will be submitted at the same time as the discharge monitoring report to which they relate.

23 8. No later than thirty (30) days after the entry of this Consent Decree, King’s Command will pay an amount of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) to the Green River College Foundation as described in Exhibit B to this Consent Decree, for environmental benefit projects benefiting water quality projects in the Green River basin. Payment CONSENT DECREE SMITH & LOWNEY, P.L.L.C. || Case No. 2:19-CV-00015-RAJ Searrie, WabHinaran □□ Tz p. 7 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 8 of 13 || will be made to the order of and delivered to Green River College Foundation, 12401 SE 320th || Street, Auburn, WA 98092-3622, Attn: George Frasier. Payment shall include the following || reference in a cover letter or on the check: “Consent Decree, Waste Action project / King’s Command, Clean Water Act Settlement.” A copy of each check and cover letter, if any, shall be sent > simultaneously to WAP.

6 a, King’s Command will pay WAP’s reasonable attorney and expert fees and costs in the amount of THIRTY-TWO THOUSAND DOLLARS ($32,000). Payment will be made within thirty (30) days of the entry of this Decree by check payable and mailed to Smith & Lowney, PLLC, 2317 E. John Street, Seattle. Washington 98112, attn: Richard Smith. This payment is full and complete satisfaction of any claims WAP may have under the Clean Water Act for fees and costs.

12 10. A force majeure event is any event outside the reasonable control of King’s 13. Command that causes a delay in performing tasks required by this Decree that cannot be cured by || due diligence. Delay in performance of a task required by this Decree caused by a force majeure 15 is not a failure to comply with the terms of this Decree, provided that King’s Command 16 notifies WAP of the event; the steps that King’s Command 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.

20 King’s Command will notify WAP of the occurrence of a force majeure event as soon as reasonably possible but, in any case, no later than ten (10) business days after the occurrence of the event. In such event, the time for performance of the task will be extended for a reasonable period of time following the force majeure event.

95 By way of example and not limitation, force majeure events include: .

6 a. Acts of God, war, insurrection, or civil disturbance; 27 b, Earthquakes, landslides, fire, floods: 28 CONSENT DECREE SMITH & LOWNEY, P.L.L.C. |! Case No. 2:19-CV-00015-RAJ Seaytuc, WABHIMETON BEI 12 p. 8 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 9 of 13 | é Actions or inactions of third parties over which defendant has no control; 2 a Restraint by court order or order of public authority: 3 Any permit or other approval sought by King’s Command from a government authority to implement any of the actions required by this Consent Decree where such approval is not granted or is delayed, and where King’s Command has timely and in good faith sought the permit or approval: q f. Strikes; and g. Litigation, arbitration, or mediation that causes delay.

10 ll. This court retains jurisdiction over this matter. While this Decree remains in force, this case may be reopened without filing fee so that the parties may apply to the Court for any further order that may be necessary to enforce compliance with this decree or to resolve any dispute 13. || regarding the terms or conditions of this decree. In the event of a dispute regarding implementation || of, or compliance with, this Decree, the parties must first attempt to resolve the dispute by meeting to 15. || discuss the dispute and any suggested measures for resolving the dispute. Such a meeting should be ||held as soon as practical but must be held within thirty (30) days after notice of a request for such a || meeting to the other party and its counsel of record. If no resolution is reached at that meeting or | within thirty (30) days of the notice, whichever occurs first, unless extended by mutual written agreement of the parties, either party may file a motion with this court to resolve the dispute, The provisions of section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), regarding awards of costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, shall apply to any proceedings seeking to enforce the terms and conditions of this Consent Decree.

95 12. The parties recognize that, pursuant to 33 U.S.C. § 1365(c)(3), no consent judgment 6 be entered in a Clean Water Act suit in which the United States is not a party prior to forty-five || (45) days following the receipt of a copy of the proposed consent judgment by the U.S. Attorney 28 CONSENT DECREE SMITH & LOWNEY, P.L.L.C. || Case No. 2:19-CV-00015-RAJ seniiie, WASAINENIM a) 1 2 pe? (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 10 of 13 || General and the Administrator of the U.S. EPA. Therefore, upon the signing of this Consent Decree || by the parties, WAP shall serve copies of it upon the Administrator of the U.S. EPA and the || Attorney General.

13. This Consent Decree takes effect upon entry by the court. It terminates three years after entry by the court.

6 14. All parties have participated in drafting this decree. ’ 15. This Consent Decree may be modified only upon the approval of the court.

16. If for any reason the court should decline to approve this Consent Decree in the form presented, this Consent Decree is voidable at the discretion of either party. The parties agree to continue negotiations in good faith in an attempt to cure any objection raised by the court to entry of this Consent Decree.

13 17. Notifications required by this Consent Decree must be in writing. A notice or other || communication regarding this Consent Decree will be effective when received unless the notice or 15. || other communication is received after 5:00 p.m. on a business day, or on a day that is not a business || day, then the notice will be deemed received at 9:00 a.m. on the next business day. The sending || party may use any of the following methods of delivery: (1) personal delivery; (2) registered or |! certified mail, in each case return receipt requested and postage prepaid; (3) a nationally recognized overnight courier, with all fees prepaid; or (4) e-mail. For a notice or other communication regarding this Consent Decree to be valid, it must be delivered to the receiving party at the addresses a listed below or to any other address designated by the receiving party in a notice in accordance with this paragraph. if to WAP: 25 Waste Action Project P.O. Box 9281 26 Covington, WA 98042 7 [email protected] 28 CONSENT DECREE SMITH & LOWNEY, P.L.L.C. Il Case No. 2:19-CV-00015-RAJ SearTLE, WASHINGTON SS" 1 2 p. 10 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 11 of 13 i and to: Smith & Lowney PLLC 2 2317 East John St. 3 Seattle, WA 98112 [email protected] if to King’s Command: King’s Command Foods, LLC 6 Attn: Plant Manager 7 7622 S. 188" Street Kent, WA 98032 9 and to: 10 King’s Command Foods, LLC Attn: Ryan Hergert 8101 34" Ave. South, Ste. 400 12 Bloomington, MN 55425 14 .

15 (3 DATED this | day of JEN / , 2019.

17 ff 18 . Li 19 THE HONORABLE RICHARD AA. JONES UNITED STATES DISTRICT COMRT JUDGE CONSENT DECREE ee 29 Case No. 2:19-CV-00015-RAJ SEATTLE, WASHINGTON 981 12 p. 11 (206) 860-2883 Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 120f13 | EXHIBIT eee Eee Sie is as BET Ig], > 3 2 6 EPR ele] zo £23 Z STE & Sf 6 5s = ® lela GO -¢ g 8 g ® □ = 3 9 oS fee § 5 § 2 3 : Q 68 2£€ € &€ B §& es § 6s &§ 6 & & Ww =n 28 % & @ 2 LU anid | | @ ° a 5 Ol ' iii

fo ° Gipet tea eae, 4 OQ \O \ } f \ \" Pagans wi ° \ a ioe < Gin ede = Eiesoe = Wo : V8 Vege Dy Zz BL ig | | 2888 a □ lr toto |) @ mu = Hes 3 ae S (cote □ pie a Zz= nO SE \ i C6 \ oO | = Oo atu \ ° en aol w Llu aise □□ oi a g N \ tea ee nae Ze | a \ -\ | : eo \ a Epes Ns arene agen eee WwW 2 aes pb oe = 5 o os eee (8 Po 1 oO rls: he . 2 { aie i a ! wn it edged O = Pe eae oie □□□ 0! 5 a 3 Dane) 3 | ee i wes 9 | 4 7 $832 OX bs | gore □□ © | f Sach AN a | i a 6 eecrke oo) i © MAINTENANCE SS hed fj SHOP i C Q is : . □ ; 1m ay > ™M CM is eager simp at a iG W Nya / ee iy sS5557 i ee A tnhte i ga —< ae age if. G)'o □ kay oN Bins» □ ow x □□ icm = bod 7 □□ a= = ety o Case 2:19-cv-00015-RAJ Document 13-1 Filed 07/17/19 Page 130f13] EXHIBIT FS Green Riv Rs Green River ane COLLEGE FOUNDATION 12401 SE 320" Street, Auburn, WA 98092-3622 Phone:(253) 288-3330 * Fax:(253) 288-3420 E-mail: [email protected] June 24, 2019 Re: King’s Command Consent Decree - Waste Action Project v. King's Command Foods, LLC To Whom It May Concern: Green River College Foundation is an institutionally related Foundation and is a stand-alone 501(c)(3) nonprofit, EIN 51-0168649. Within the mission of the Foundation, providing resources to assist Green River College in achieving educational excellence, are the strategic priorities: to remove financial barriers for students, create pathways to good living wage careers, and provide resource capacity for college programs. The Green River College Natural Resources Program is a CTE program of Green River, and students are engaged in a variety of experiential learning projects that have value to the natural resources and ecological welfare in our community.

We have reviewed the consent decree that provides payment in the amount of $150,000 from King's Command to the Green River College Foundation. The funding provided will be used to pay for projects focused on improved water quality in the Green River watershed.

Work may include invasive plant control, native planting, and other stewardship activities conducted by or through the Green River College Natural Resources Department. This work is in partnership with existing conservation organizations and local governments engaged in water quality related conservation projects in the Green River, and its tributaries.

No money received under the proposed consent judgment will be used for political lobbying activities; and following the expenditure of funds provided by the settlement instrument Green River College Foundation will submit to the Court, the United States, and the parties a letter describing how the SEP funds were spent.

Please do not hesitate to contact us with questions or for additional information.

Sincerely, J See THe AAAS George P. Frasier, Vice President for Advancement Green River College Foundation