Waste Action Project v. UFP Washington LLC et al, No. 2:2021cv01636 - Document 38 (W.D. Wash. 2023)
Court Description: ORDER granting Parties' 36 Joint Stipulated MOTION for Entry of Consent Decree. Signed by Judge Marsha J. Pechman. (SB)
Download PDF
<![CDATA[
Waste Action Project v. UFP Washington LLC et al Doc. 38 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 1 of 13 HON. MARSHA J. PECHMAN 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 WASTE ACTION PROJECT, Plaintiff, 10 v. 11 12 UFP WASHINGTON LLC; UFP INDUSTRIES, INC., Defendants. 13 14 ___________________________________ ) ) ) ) ) ) ) ) ) ) Case No. 2:21-cv-01636 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE 15 I. STIPULATIONS 16 WHEREAS, Plaintiff Waste Action Project sent a sixty-day notice of intent to sue letter to 17 18 Defendants UFP Washington, LLC 19 or about October 1, 2021, and filed a complaint on December 6, 2021, alleging violations of the 20 Clean Water Act, 33 U.S.C. § 1251 et seq., relating to discharges of stormwater from UFP WA 21 facility in Snohomish, Washington and seeking declaratory and injunctive relief, civil penalties, 22 23 BBBBBBBBBBB CONSENT DECREE [PROPOSED] Case No. 2:21-cv-01636 1 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Dockets.Justia.com Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 2 of 13 1 2 WHEREAS, Waste Action Project and UFP agree that settlement of these matters is in the 3 best interest of the parties and the public and that entry of this Consent Decree is the most 4 appropriate means of resolving this action. NOW THEREFORE, Waste Action Project and UFP stipulate to the entry of this Consent 5 6 Decree without trial or adjudication. 7 8 DATED AND PRESENTED this th day of JuMZ 2023. GORDON THOMAS HONEYWELL LLP SMITH & LOWNEY, PLLC By s/%JBOOF , $POXBZ Bradley B. Jones, WSBA #17197 Dianne K. Conway, WSBA #28542 Attorneys for Defendants UFP Washington LLC and UFP Industries, Inc. By s/Marc Zemel Marc Zemel, WSBA #44325 Savannah Rose, WSBA #57062 Attorneys for Plaintiff Waste Action Project UFP WASHINGTON, LLC WASTE ACTION PROJECT By 16 By Scott Worthington hi President, UFP Packaging 17 UFP INDUSTRIES, INC. 9 10 11 12 13 14 15 18 19 Greg Wingard Executive Director of Waste Action Project By Dave Tutas Secretary 20 21 22 23 BBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 2 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 3 of 13 II. ORDER AND DECREE 1 T 2 3 Decree and the foregoing Stipulations of the parties. Having considered the Stipulations and the 4 promises set forth below, the Court hereby ORDERS, ADJUDGES, and DECREES as follows: 1. 5 6 jurisdiction over the parties and subject matter of this action. 2. 7 8 3. This Consent Decree applies to and binds the parties and their successors and assigns. 4. 11 12 Each signatory for the parties certifies for that party that he or she is authorized to enter into the agreement set forth herein. 9 10 The parties stipulate solely for purposes of this Decree that this Court has This Consent Decree and any injunctive relief ordered within applies to the operation, oversight, or both by UFP WA of its facility at or about 1207 Three Lakes Road, 13 5. 14 This Consent Decree is a full and complete settlement and release of all the claims 15 in the complaint and the sixty-day notice and all other claims known or unknown existing as of the 16 date of entry of the Consent Decree that could be asserted under the Clean Water Act, 33 U.S.C. §§ 17 1251-1387, arising from operation of the Facility. These claims are released and dismissed with 18 prejudice. Enforcement of this Consent Decree is W 19 violation of its terms. 6. 20 This Consent Decree is a settlement of disputed facts and law. It is not an admission 21 or adjudication regarding any allegations by Waste Action Project in this case or of any fact or 22 conclusion of law related to those allegations, nor evidence of any wrongdoing or misconduct on 23 BBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 3 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 4 of 13 1 the part of UFP. UFP expressly denies all liability concerning the allegations by Waste Action 2 Project. 7. 3 In full and complete satisfaction of all the claims covered by the Complaint and all 4 other claims covered by this Consent Decree, UFP WA agrees to the following terms and 5 conditions: a. 6 UFP WA will comply with all conditions of its National Pollutant Discharge 7 and any successor, 8 modified, or replacement permit authorizing discharges of stormwater associated with 9 industrial activity from the Facility. b. 10 UFP WA will comply with all conditions of Administrative Order #21270, 11 which mandates full implementation of stormwater treatment by September 30, 2024, along 12 with other interim measures. c. 13 For the duration of this Consent Decree, UFP WA will, as soon as 14 practicable, electronically forward to Waste Action Project copies of all substantive 15 communications to and/or from Ecology related to its NPDES permit, compliance with its 16 NPDES permit, records and reports required to be submitted to Ecology by its NPDES 17 permit or Administrative Order, compliance with the Administrative Order, and the 18 construction and operation of the bioretention system. d. 19 UFP WA will implement and maintain the following BMPs for the life of 20 the Consent Decree; make related amendments to the SWPPP as soon as practicable; and, 21 no later than 30 days after the effective date of this Consent Decree, provide Waste Action 22 Project with a copy of the amended SWPPP within 10 days of amending it pursuant to this 23 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 4 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 5 of 13 paragraph: 1 i. 2 Vacuum sweep all outdoor paved surfaces of the Facility no less frequently than once per week; 3 ii. 4 Hand-sweep all indoor production areas of the Facility no less 5 frequently than once per day and immediately after completing production if there 6 is a visible accumulation of debris or sawdust accumulation; iii. 7 Clean up all sawdust, trash, and debris in outdoor unpaved areas of 8 the Facility no less frequently than once per day and immediately if there is a visible 9 accumulation of sawdust, dirt, or debris; iv. 10 Sweep all outdoor paved storage areas of the Facility immediately 11 after clearing it of products or equipment that is moved either to clean paved spaces 12 that do not get swept on a regular basis or are transported off site; v. 13 Maintain a log of all third-party vacuum sweeping activities performed at the Facility, including the date and time; 14 vi. 15 epair/replace/reseal damaged paved areas, including 16 repairing alligator cracking, in accordance with the Stormwater Management 17 Manual for Western Washington;. vii. 18 Use drip pans and absorbents under or around leaky vehicles and 19 equipment [outdoors] or store indoors where feasible and 20 equipment and vehicles prior to on-site storage or disposal 21 NPDES permit Condition S3.B.4.b.i.4.h; viii. 22 23 Correctly place and maintain filter socks around all catch basins, with BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 5 rain fluids from Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 6 of 13 1 the exception of high traffic areas, until the bioretention treatment system has been 2 operational for 30 days; ix. 3 Install and maintain catch basin filters that are designed to remove 4 metals and particulates in all catch basins at the Facility until the bioretention 5 treatment system has been operational for 30 days; 6 x. 7 xi. Immediately clean up leaks and spills; and Conduct all maintenance and repair of vehicles and equipment in a 8 building, or other covered impervious containment area that is sloped to prevent run- 9 on of uncontaminated stormwater and runoff of contaminated water 10 with the Stormwater Management Manual for Western Washington. 8. 11 Within 30 days of the effective date of this Consent Decree, UFP WA will pay 12 $183,900 (ONE HUNDRED AND EIGHTY-THREE THOUSAND NINE HUNDRED 13 DOLLARS) to the Wild Fish Conservancy for projects to address impairments to, and contribute 14 to the improvement of, the water quality of the Pilchuck River and/or the Snohomish River, as 15 described in Exhibit 1 to this Consent Decree. The check will be made to the order of Wild Fish 16 Conservancy and delivered to: 17 Wild Fish Conservancy PO Box 402 Duvall, WA 98019 18 19 20 Decree, Waste Action Project v. UFP Washington, LLC, et al., W.D. Wash. No. 2:21-cv-01636- 21 usly to Waste Action 22 23 Project and its counsel. BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 6 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 7 of 13 9. 1 2 Within 30 days of the effective date of this Consent Decree, UFP WA will pay $315,600 (THREE HUNDRED AND FIFTEEN THOUSAND, SIX HUNDRED DOLLARS) 3 4 reasonable attorney and expert witness fees) by check payable and mailed to Smith & Lowney, 5 PLLC, 2317 East John St., Seattle, WA 98112, attn: Marc Zemel. UFP WA 6 in full and complete satisfaction of any claims Waste Action Project has or may have, either 7 legal or equitable, and of any kind or nature whatsoever, for fees, expenses, and costs incurred 8 in the Litigation. 9 10. ment will be UFP will not be required to perform any obligations under this Consent Decree; 10 be liable for loss or damage for failure to do so; or be deemed to be in breach hereof where 11 ability to commence or continue to perform any work is prevented, delayed, limited, 12 restricted, or interfered with, in whole or in part, by, from, through, or as a result of, any Force 13 Majeure Events (as defined below), provided that UFP complies with the procedures described 14 in paragraph 12 and uses reasonable efforts to perform its obligations. Under these conditions, 15 any obligations under this Consent Decree will be suspended for the duration of time UFP is 16 affected by such Force Majeure Events, and Waste Action Project, its subsidiaries, affiliates, or 17 related entities waive any and all claims for damages or otherwise, and forever release UFP 18 from, against, and in connection with, any claims, failures or delays as a result of any Force 19 Majeure Events. 11. 20 21 (i) acts of God, earthquakes, floods, tornados, hurricanes, storms, natural disasters, adverse weather 22 conditions, or any explosions, fires, casualties, or accidents; (ii) acts of war, hostilities (whether 23 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 7 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 8 of 13 1 war be declared or not), acts of terrorism, civil unrest, riots, insurrections, malicious damage, 2 vandalism, or sabotage; (iii) acts of governmental entities or government delays (whether in issuing 3 permits, authorizations, inspections, certifications or otherwise), present or future governmental 4 intervention, economic sanctions, transportation embargoes, import/export shutdowns or 5 restrictions, travel restrictions, quarantines, national or international emergencies, virus or 6 infectious disease outbreaks, epidemics or pandemics, public safety recommendations or protocols, 7 or public health orders or other incidents affecting public health; (iv) legal requirements, court 8 orders, litigation, or judicial, quasi-judicial or administrative actions; (v) labor or industrial disputes 9 or difficulties; work stoppages, walkouts, strikes, or lockouts; transportation delays; supply chain 10 disruptions; shortages in or inability to obtain services, labor, materials, or other similar items or 11 reasonable substitutes thereof, on reasonable commercial terms; significant changes in the 12 availability of products, parts or materials; inability of workers to perform their duties; 13 14 power failures (or blackouts or brownouts), failures or interruptions of communication or 15 telecommunication lines, or energy shortages; (vii) actions of Waste Action Project (or any 16 employee or representative of any such entity) that impact the time of performance, or changes 17 ordered in the products, services or work, or the sequencing of the work; and/or (viii) any actions, 18 events or causes beyond the reasonable control of UFP. 12. 19 If a Force Majeure Event occurs, UFP WA will notify Waste Action Project within 20 15 days of discovery of the event and set forth the steps that UFP will take to perform the task; the 21 projected time that will be needed to complete the task; and the measures that have been taken or 22 will be taken to prevent or minimize any impacts to stormwater quality resulting from delay in 23 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 8 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 9 of 13 1 completing the task. 13. 2 This Court retains jurisdiction over this matter while this Consent Decree remains 3 in force. And, while this Consent Decree remains in force, this case may be reopened without filing 4 fee so that the parties may apply to the Court for any further order that may be necessary to enforce 5 compliance with this Consent Decree or to resolve any dispute regarding the terms or conditions of 6 this Consent Decree. In the event of a dispute regarding implementation of, or compliance with, 7 this Consent Decree, the parties must first attempt to resolve the dispute by meeting to discuss the 8 dispute and any suggested measures for resolving the dispute, including considering submitting the 9 dispute to mediation with . Such a meeting should be held as 10 soon as practical but must be held within 30 days after notice of a request for such a meeting to the 11 other party and its counsel of record. If no resolution is reached at that meeting or within 30 days 12 of the Notice, either party may file a motion with this Court to resolve the dispute. The provisions 13 of section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), regarding awards of costs of 14 litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially 15 prevailing party, will apply to any proceedings seeking to enforce the terms and conditions of this 16 Consent Decree. 14. 17 The parties recognize that, pursuant to 33 U.S.C. § 1365(c)(3), no consent judgment 18 can be entered in a Clean Water Act suit in which the United States is not a party before 45 days 19 following the receipt of a copy of the proposed consent judgment by the U.S. Attorney General and 20 the Administrator of the U.S. EPA. Therefore, upon the filing of this Consent Decree by the parties, 21 Waste Action Project will serve copies of it upon the Administrator of the U.S. EPA and the 22 Attorney General. 23 BBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 9 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 10 of 13 15. 1 2 This Consent Decree will take effect upon entry by this Court. It terminates 12 months after Ecology finds compliance with Administrative Order #21270. 3 16. All parties have participated in drafting this Consent Decree. 4 17. This Consent Decree constitutes the entire agreement between the parties. There are 5 no other or further agreements, either written or verbal. This Consent Decree may be modified only 6 upon a writing signed by both parties and the approval of the Court. 18. 7 If for any reason the Court should decline to approve this Consent Decree in the 8 form presented, this Consent Decree is voidable at the discretion of either party. The parties agree 9 to continue negotiations in good faith to cure any objection raised by the Court to entry of this 10 Consent Decree. 19. 11 Notifications required by this Consent Decree must be in writing by email. For a 12 notice or other communication regarding this Consent Decree to be valid, it must be delivered to 13 the email addresses listed below or to any other address designated by the receiving party in a notice 14 in accordance with this paragraph 19. 15 If to Waste Action Project: 16 Greg Wingard Email: gregwap@earthlink.net 17 And to: 18 Marc Zemel Savannah Rose Email: marc@smithandlowney.com, savannah@smithandlowney.com 19 20 21 If to UFP: 22 UFP Washington, LLC 1207 Three Lakes Road 23 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 10 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 11 of 13 Snohomish, Washington ATTN: Brian Bruning Email: bbruning@ufpi.com 1 2 UFP Washington, LLC 2801 East Beltline NE Grand Rapids, MI 49525 ATTN: Legal Department 3 4 5 And to: 6 Bradley B. Jones Dianne K. Conway Email: bjones@gth-law.com, dconway@gth-law.com 7 8 A notice or other communication regarding this Consent Decree will be effective when 9 received unless the notice or other communication is received after 5:00 p.m. on a business day or 10 on a day that is not a business day, in which case the notice will be deemed received at 9:00 a.m. 11 on the next business day. A notice or other communication will be deemed to have been received 12 upon receipt of a response by the party providing notice or other communication regarding this 13 Consent Decree. 14 15 16 WK day of ______________, DATED this ____ 2023. 6HSWHPEHU 17 18 A 19 HON. MARSHA J. PECHMAN UNITED STATES SENIOR DISTRICT JUDGE 20 21 22 23 BBBBBBBBBBBB [PROPOSED] CONSENT DECREE Case No. 2:21-cv-01636 11 Smith & Lowney, pllc 2317 East John St. Seattle, Washington 98112 (206) 860-2883 Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 12 of 13 June 27, 2023 RE: Waste Action Project v. UFP WASHINGTON LLC; UFP INDUSTRIES, INC.; Case No. 2:21-cv01636 To Whom It May Concern: This letter is intended to provide assurance that I have reviewed the Consent Decree between Waste Action Project and UFP Washington LLC / UFP Industries, Inc. (UFP) and that I am authorized by my Board of Directors to make the following binding commitments on behalf of Wild Fish Conservancy (WFC): 1. I understand that WFC should receive $183,900 from UPF as specified in the Consent Decree. 2. WFC shall use the UFP funds working on environmentally beneficial projects that protect natural watershed processes and water quality of the Pilchuck Watershed, a significant tributary to the Snohomish River located in Snohomish, Washington. 3. WFC will use the funding to perform a watershed-wide inventory and assessment of the Pilchuck River. Using remote data and where landowners grant WFC staff permission to access, WFC will map and classify stream and fish habitat restoration opportunities in the Pilchuck River. WFC will determine stream reach classifications using the rules and protocols provided in WAC 222-16-031 and Section 13 of the Forest Practices Board Manual. Inventory results will be made available on the WA Dept. of Natural Resources through water type modification forms. 4. After funds have been disbursed, WFC shall send a report to the Justice Department, the Court and the Parties describing how the funds were utilized and demonstrating conformance with the nexus of the Consent Decree. Wild Fish Conservancy is a 501(c)3 nonprofit conservation organization (Tax ID 91-1451405) headquartered in Washin wild fish and the ecosystems they depend on, through science, education, and advocacy. Our staff comprises 19 professional scientists, advocates, and educators, and our Board of Directors is represented by a group of dedicated and accomplished scientists, natural-resource managers, activists, and leading voices in the field of conservation ecology. Together, our staff and board's decades of experience in technical research, engineering, advocacy, and public education allow us to effectively address a broad range of complex issues facing wild fish always with science as our compass. None of the funds received will be used for lobbying or election activities. All will be within the scope of our allowed 501(c)(3) activities. Case 2:21-cv-01636-MJP Document 38 Filed 09/05/23 Page 13 of 13 Wild Fish Conservancy is governed by a Board of Directors, and is committed to sound fiscal management. WFC contracts with an independent certified public accounting firm to conduct audits, and did so most recently during spring 2022. UFP WA may not make any public statement taking credit for this payment without explicitly recognizing to be a charitable contribution for tax accounting purposes. Please do not hesitate to contact me with questions or for additional information. ______________________ Emma Helverson, Executive Director Wild Fish Conservancy 425/788-1167 emma@wildfishconservancy.org
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
