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UNITED STATES DISTRICT COURT 15 WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, ) Civil Action No.: 16 ) 17 Plaintiff

, ) 18 )

v. ) ) CONSENT DECREE 19

ICICLE SEAFOODS , INC.

, EVENING STAR, ) 20 INC., ICICLE ACQUISITION SUBSIDIARY, ) 21 LLC , and LFK, INC., ) 22 ) 23 Defendant s

. ) )

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- I. JURISDICTION AND VENUE

................................ ................................ .......................... - 3

- TABLE OF CONTENTS 1

2

II. APPLICABILITY

................................ ................................ ................................ ................ - 4

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III. DEFINITIONS

................................ ................................ ................................ ..................... - 4

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IV. CIVIL PENALTY

................................ ................................ ................................ ............... - 5

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V. COMPLIANCE REQUIREMENTS

................................ ................................ ...................... - 7

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VI. REPORTING REQUIREMENT S

................................ ................................ ...................... - 10

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VII. STIPIULATED PENALTIES

................................ ................................ ......................... - 10

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VIII FORCE MAJEURE .

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I X. DISPUTE RESOLUTION

................................ ................................ ............................. - 15

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X. INFORMATION COLLECTION AND RETENTION

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- 11

XI. FAILURE OF COMPLIANCE

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X II

. EFFECT OF SETTLEMENT / RESERVATION OF RIGHTS

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X I II

. COST S

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X I V. NOT I CES

................................ ................................ ................................ ......................... - 19

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XV. EFFECTIVE DATE

................................ ................................ ................................ .......... - 19

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XVI. RETENTION OF JURISDICTION

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X VII

. MODIFICATION

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X VIII

. TER MINATION

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X I X. PUBLIC PARTICIPATION

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XX. SIGNATORIES/SERVICE

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XXI. INTEGRATION

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XXII. FINAL JUDGMENT ............................................................................

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- WHEREAS, Plaintiff United States of America, on behalf of the United States 1

Environmental Protection Agency (EPA), has filed a compl aint in this action pursuant to Section 2

113(b) of the Clean Air Act, 42 U.S.C. 7413(b), alleging that Defendant s Icicle Seafoods, Inc.

, 3

Evening Star, Inc., Icicle Acquisition Subsidiary, LLC, and LFK, Inc. (Defendant s )

, ha ve 4

violated regulations promulgated by EPA pursuant to Title VI of the Clean Air Act (CAA)

, 5

specifically regulations set forth in 40 C.F.R. Part 82, Subpart F ; 6

WHEREAS, Defendants den y the allegations in the Complaint , and by entering into this 7

Consent Decree do not admit any li ability to the United States or to any third party arising out of 8

the occurrences or violations alleged in the Complaint ; and 9

WHEREAS, t he United States and Defendants (the Parties) recognize, and the Court by 10

entering this Decree finds, that this Decree has been negotiated by the Parties in good faith and is 11

fair and reasonable , and f urthermore, that settlement of this action is in the public interest and 12

entry of this Decree without further litigation is the most appropriate m eans of resolving this 13

matte r; 14

NOW THEREFORE, without the adjudication or admission of any issue of fact or law 15

except as provided in Section I, and with the consent of the Parties, it is hereby ADJUDGED, 16

ORDERED, and DECREED as follows: 17

I. JURISDICTION AND VENUE 18

1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 19

U.S.C. §§ 1331, 1345, and 1355; Section 113(b) and (c) of the CAA, 42 U.S.C. § 7413(b); and 20

over the Parties. 21

2. Venue is proper in this District pursuant to Section 113(b) of the CAA , 42 U.S.C. 22

§ 7413(b) and 28 U.S.C. §§ 1391(b) and 1395(a), because Defendants conduct business and 23

maintain their corporate headquarters in this judicial district. For purposes of this Decree, or any 24

ac tion to enforce this Decree, Defendants consent to th is Court ’ s jurisdiction over this Decree 25

and any such action over Defendants

, and Defendants consent to venue in this judicial district. 26- 4

- 3. Solely for purposes of this Decree, Defendants agree that the Complaint states 1

claims upon which relief may be granted pursuant to Section 113(b) of the CAA, 42 U.S.C. § 2

7413(b), Section 608 of the CAA, 42 U.S.C. § 7671g , and 40 C.F.R. Part 82, Subpart F

. 3

II. APPLICABILITY 4

4. The obligati ons of this De cree apply to and are binding upon the United States, 5

and upon Defendant s and upon Icicle Seafoods’ subsidiaries Coastal Star, Inc., Icicle Vessel 6

Holdings, Inc., and Western Star Seafoods, Inc., and upon their successors, assigns, or other 7

entities or persons otherwise bound by law. 8

5. The Facilities subject to this Consent Decree shall remain subject to this Decree 9

so long as they are owned and/or operated by Defendant s

. 10

6. In any action to enforce this Decree, Defendant s shall not raise as a defense the 11

fai lure by any of the ir officers, directors, employees, agents, or contractors or any of their 12

subsidiaries to take any actions necessary to comply with the provisions of this Decree. 13

III. DEFINITIONS 14

7. Except as otherwise set forth herein, terms used in this Decree that are defined in 15

Title VI of the CAA, 42 U.S.C. § 7401 et. seq. , and 40 C.F.R. Part 82

, Subpart F shall have the 16

meanings contained therein. Whenever the terms set forth below are used in this Decree, the 17

following definitions shall apply. 18

a. “Complaint” shall mean the complaint filed by the United States in this 19

action; 20

b. “Consent Decree” or “Decree” shall mean this Decree and all appendices 21

hereto ; 22

c. “Day” shall mean a calendar day unless expressly stated to be a working 23

day. In computing any period of time under this Decree, where the last 24

day would fall on a Saturday, Sunday, or federal holiday, the period shall 25

run until the close of business of the next working day; 26- 5

- d. “Defendant s ” shall mean defendant s Icicle Seafoods, Inc. , Evening Star, 1

Inc., Icicle Acquisition LLC, and LFK, Inc. For purposes of Defendant s ’ 2

compliance with the requirements of this Consent Decree, “Defendant s ” 3

shall include Icicle Seafoods ’ subsidiaries Coastal Star, In c., Icicle Vessel 4

Holdings, Inc., and Western Star Seafoods, Inc. ; 5

e. “ EPA ” shall mean the United States Environmental Protection Agency 6

and any of its successor departments or agencies; 7

f. “ Effective Date ” shall mean the date upon which this Decree is entered by 8

the Court or a motion to enter this Decree is granted, whichever occurs 9

first, as recorded on the Court’s docket ; 10

g. “Facility” shall mean the following vessels and land based facilities: the 11

P/V Northern Victor , the P/V Robert M. Thorstenson , the P/V Gordon 12

Jensen , the F/V Adventure , the F/V American Eagle , the F/V Anita J. , the 13

F/V Commodore , the F/V Half Moon Bay , the F/V Hickory Wind , the F/V 14

Ocean Hope 3 , the F/V Storm Petrel , the F/V Sunset Bay , and the Ada k, 15

Egegik, Larsen Bay and Scatter Creek facilities, and any other facilities 16

that normally contain more than 50 pounds of refrigerant as defined in 40 17

CFR § 82.152 which Defendant s may acquire during the effective period 18

of this Consent Decree. 19

h. “Paragraph ” shall mean a portion of this Decree identified by an Arabic 20

numeral; 21

i. “ Section ” shall mean a portion of this Decree identified by a R oman 22

numeral; and 23

j. “United States” shall mean the United States of America. 24

IV. C IVIL PENALTY 25

8. Within 30 Days after the Effective Date of this Decree, Defendants shall pay the 26

sum of $ 430 , 00 0 ( four

- hundred thirty thousand dollars) as a civil penalty in accordance with 27- 6

- the payment instructions set forth in Paragraph 9

. If any portion of the civil pe nalty is past due to 1

the United States following expiration of the 30 Day period, Defendants shall pay , on the past 2

due amount, interest acc ruing from the Effective Date of this Decree through the date of payment 3

at the rate specified in 28 U.S.C. § 1961. Interest payments under this Paragraph shall be in 4

addition to any stipulated penalty due in accordance with this Decree. 5

9. Defendants shall pay the civil penalty due by FedWire Electronic Funds Transfer 6

(EFT) to the U.S. Department of Justice in accordance with written instructions to be provided to 7

Defendants , following lodging of this Decree

. Defendants shall pay the civil penalty to the 8

Financial Litigation Unit of the U.S. Attorney ’s Office for the Western District of Washington

, 9

700 Stewart Street, Suite 5220, Seattle, WA 98101

- 1271, (206) 553

- 1866 . At the time of 10

payment, Defendants shall send a copy of the EFT authorization form and the EFT transaction 11

record, together w ith a transmittal letter, to the United Stat es in accordance with Section X I V of 12

this Decree (Notices); by email to acctsreceivable.CINWD@epa.gov ; and by mail to: 13

U.S. EPA Cincinnati Finance Office 14

26 Martin Luther King Drive 15

Cincinnati, Ohio 45268 16

The transmittal letter shall state that the payment is for the civil penalty owed pursuant to the 17

Decree in United States v. Icicle Seafoods, Inc. , and shall reference the civil action number 18

assigned to this case and DOJ case number 90

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- 07395/2

. 19

10. Defendants shall not deduct any penalties paid under this Decree pursuant to this 20

Section or Section VII (Stipulated Penalties) in calculating their federal income tax. 21

V. COMPLIANCE REQUIREMENTS 22

11. Defendants shall comply with all applicable requirements of Section 608 of the 23

Clean Air Act, 42 U

. S

. C

. § 7671g(c), and its implementing regulations at 40 C.F.R. Part 82, 24

Subpart F

, except as otherwise specified in this Consent Decree

. 25

12. This Pa ragraph applies to the main refrigeration system aboard the Northern 26

Victor , the Adak facility main refrigeration system, the Egegik facility main refrigeration system, 27- 7

- the Larson Bay facility ice machine, the Egegik facility ice machine, and the Scatter C reek 1

facility chillers #1 and #2. For a period of five years after the Effective Date of this Decree, 2

whenever any of these refrigeration appliances is leaking at a rate such that the loss of refrigerant 3

will exceed 20% of the total charge during a 12

- mont h period, Defendants shall repair any and 4

all leaks in accordance with 40 C.F.R. § 82.156(i)(2)

. Repairs must bring annual leak rates to 5

below 20 percent during a 12

- month period. Defendants must comply with all other 6

requirements of 40 C.F.R. Part 82, Su bpart F, pertaining to these repairs. If, during the five

- year 7

period following the entry of this Consent Decree, EPA finalizes a revision to 40 C.F.R. § 8

82.156(i)(2) that requires a leak

- rate of less than 20% as the trigger rate for leak repairs, that 9

reg ulatory requirement shall thereafter govern Defendants ’ obligations under this Paragraph. 10

13. Defendants shall, by December 31, 2013

, fully implement the Comprehensive 11

Leak Inspection and Repair Plan attached as Appendix 1 to this Consent Decree

. Defendants 12

shall repair all leaks of R

- 22 identified during its inspection of each of the main refrigeration 13

systems at the facilities identified in Appendix 1

, and shall perform initial and follow

- up 14

verification tests

, in accordance with all requirements for repai rs and initial and follow

- up 15

verification tests established in 40 C.F.R. Part 82, Subpart F. Defendants shall additionally 16

provide via electronic mail to EPA prior notice as specified in Appendix 1 of their intention to 17

perform the Comprehensive Leak Insp ection and Repair Plan

, so that EPA may observe such 18

activitie s. 19

14. Where any compliance obligation set forth in the applicable regulations or in this 20

Consent Decree requires Defendants to obtain any federal, state, or local permit, Defendants 21

shall timely submit and complete the appropriate permit applications. 22

VI. RECORDKEEPING AND REPORTING REQUIREMENTS 23

15. Defendants shall submit a written report addressing the findings of the Leak 24

Inspection and Repair of each of the Facilities subject to the requirement s of Paragraph 13

. The 25

written report for each Facility shall be submitted to EPA no later than 60 Days following the 26

later of the entry of the Consent Decree or the completion of the actions required pursuant to 27- 8

- Attachment 1 at each Facility, and shall sp ecify: (1) all of the leaks that were detected on the 1

Facility’s main refrigeration system , the date of the leak’s detection, and the location of the leak ; 2

(2) the date of the repair; and (3) the date, type, and results of all initial and follow

- up leak re pair 3

verification testing. 4

16. F or each of the Facilities identified in Paragraph 7 (g), Defendants shall complete 5

the reporting forms in Appendix II of this Consent Decree at the time of each instance of 6

regulated refrigerant appliance service during the effective period of this Consent Decree

. 7

17. Defendant s shall submit all Appendix II forms created in the relevant reporting 8

period according to the following schedule: There shall be two reporting periods, one from 9

January 1 to June 30, and a second reporting period from July 1 to December 31. Defendants 10

shall submit the Appendix II forms within 30 days after the end of each reportin g period. For the 11

F/V Gordon Jensen, the first reporting period will begin on April 10, 2012. For the Egegik, 12

Larsen Bay, and Scatter Creek Facilities, there shall be one reporting period, which shall run 13

from January 1 to December 31. For these Facilitie s, Defendants shall submit all Appendix II 14

forms within 30 days of the end of this reporting period. Defendants shall make these 15

submissions until Termination of the Consent Decree. 16

18. The recordkeeping and reporting requirements of this Consent Decree sha ll not 17

limit the scope of the recordkeeping and reporting requirements of 40 C.F.R. Part 82. 18

19. EPA will use reasonable efforts to expeditiously review all reports submitted by 19

Defendant s

. After such review, EPA will contact Defendant s by writing or email to confirm 20

review of the reports and any findings of deficiencies. 21

20. If Defendants violate, or ha ve reason to believe they may violate, any requirement 22

of this Decree, Defendant s shall notify EPA of such violation and its likely duration, i n writing, 23

within ten (10) working Days of the Day they it first become s aware of the violation, with an 24

explanation of the violations’ likely cause and of the remedial steps taken, or to be taken, to 25

prevent or minimize such violation. If the cause of a violation cannot be fully explained at the 26

time the report is due, Defendants shall so state in the report. Defendants shall investigate the 27- 9

- cause of the violation and shall then submit an amendment to the report, including a full 1

explanation of the cause of the violation, within 30 Days of the Day Defendants become s aware 2

of the cause of the violation. Nothing in this Paragraph or the following Paragraph relieves 3

Defendants of its obligation to provide the notice required by Section VIII of this Decree ( Force 4

Majeure). 5

21. Whenever any violation of this Decree or any other event affecting Defendants ’ 6

performance under this Decree may pose an immediate threat to the public health or welfare or 7

the environment, Defendants shall notify EPA orally or by electronic transmission as soon as 8

possible, but no later than 24 hours after Defendants first knew of the violation or event. This 9

procedure is in addition to the requirements set forth in the preceding Paragraphs. 10

22. All repo rts shall be submitted to the person(s) designated in Section X I V of this 11

Decree (Notices). 12

23. Each report and written notification submitted by Defendants under this Section 13

shall be signed by an official of the submitting party and include the following cer tification: 14

“ I certify under penalty of law that this document and all 15

attachments were prepared under my direction or supervision in 16

accordance with a system designed to assure that qualified personnel 17

properly gather and evaluate the information submitt ed. Based on my 18

inquiry of the person or persons who manage the system, or those persons 19

directly responsible for gathering the information, the information 20

submitted is, to the best of my knowledge and belief, true, accurate, and 21

complete. I am aware th at there are significant penalties for submitting 22

false information, including the possibility of fine and imprisonment for 23

knowing violations. ” 24

This certification requirement does not apply to emergency or similar notifications where 25

compliance would be i mpractical. 26- 10

- 24. The reporting requirements of this Decree do not relieve Defendants of any 1

recordkeeping or reporting obligations required by the CAA or its implementing regulations, or 2

by any other federal, state, or local law, regulation, permit, or other re quirement. 3

25. Any information provided pursuant to this Decree may be used by the United 4

States in any proceeding to enforce the provisions of this Decree and as otherwise permitted by 5

law. 6

VII. STIPULATED PENALTIES 7

26. Defendants shall be liable for stipulated penalties to the United States for 8

violations of this Decree as specified below, unless excused under Section VIII (Force Majeure). 9

A violation includes failing to perform any obligation required by the terms of this Decree, 10

including payment of civil penalties, compliance requirements, and submission of any required 11

reports or notifications according to all applicable require m ents of this Decree and within the 12

specified time schedules established by or approved under this Decree. 13

27. Late Payment of Civil Penalty

28. The following stipulated penalties shall accrue per violation per Day for each 21

violation of any of the requirements specified in Paragraphs 11

- 1 5 and 17 : 22 : If Defendants fail to pay the civil penalty required 14

to be paid under Section IV of this Decree (Civil Penalty) when due, Defendants shall pay a 15

stipulated penalty of $ 1 ,000 per Day for each Day that the payment is late. Late payment of the 16

civi l penalty shall be made in accordance with Section IV. All transmittal correspondence shall 17

state that any such payment is for late payment of the civil penalty due under this Decree, or for 18

stipulated penalties for late payment, as applicable, and shall include the indentifying 19

infor mation set forth in Section IV. 20

Penalty Per Violation Per Day

$ 125 1st through 14 th Day 24 Period of Noncompliance 23

$ 250 15th through 30 th Day 25

$750 31st Day and beyond 26- 11

- 29. For each failure to record information required by Paragraph 16, Defendants shall 1

pay a stipulated penalty of $125. 2

30. Stipulated penalties shall begin to accrue on the day after performance is due or on 3

the day of the violation, whichever is applicable, and shall continue to accrue until performance 4

is satisfactorily completed or the violation ceases . If Defendants in good faith timely submit a 5

report required by Section VI (Reporting Requirements) of this Decree and EPA determines that 6

a component of the report is deficient, EPA will provide notice in writing of the deficiency and 7

allow Defendants at least 20 Days to correct the deficiency. In this circumstance, stipulated 8

penalties will not begin to accrue until the expiration of the 20

- Day period. H owever, if the 9

original submitted report was so deficient as to constitute a material breach of Defendants ’ 10

obligati ons under this Consent Decree, the stipulated penalty shall begin to accrue upon original 11

submission and shall be payable notwithstanding any subsequent submission. 12

31. Defendants shall pay any stipulated penalty within 30 Days of receiving the 13

United States’ written demand. 14

32. The United States may in the unreviewable exercise of its discretion, reduce or 15

waive Stipulated Penalties otherwise due it under this Decree. 16

33. Stipulated penal ties shall continue to accrue as provided in this Section during any 17

Dispute Resolution, with interest on accrued penalties payable and calculated by the rate 18

specified in 28 U.S.C. § 1961 , b ut need not be paid until the following: 19

a. If the dispute is resolv ed by agreement or by a decision of EPA that is not 20

appealed to the Court, Defendants shall pay accrued penalties determined to be owing, 21

together with interest, to the United States within 30 Days of the E ffective D ate of the 22

agreement or the receipt of E PA ’s decision or order. 23

b. If the dispute is appealed to the Court and the United States prevails in 24

whole or in part, Defendants shall pay all accrued penalties determined by the Court to be 25

owing, together with interest, within 60 Days of receiving the Cour t ’s decision or order, 26

except as provided in subparagraph c, below. 27- 12

- c. If any Party appeals the District Court ’s decision, Defendant shall pay all 1

accrued penalties determined to be owing, together with interest, within 15 Days of 2

receiving the final appellat e court decision. 3

34. Defendants shall pay stipulated penalties owing to the United States in the manner 4

set forth and with the confirmation notices as provided in Section IV (Civil Penalt y ) , except that 5

the transmittal letter shall state that the payment is f or stipulated penalties and shall state for 6

which violation(s) the penalties are being paid. 7

35. Defendants shall not deduct Stipulated Penalties paid under this Section in 8

calculating its federal income tax. 9

36. Failure by the United States to demand stipulated p enalties shall have no effect on 10

the accrual of such penalties. 11

37. Nothing herein shall preclude the simultaneous accrual of penalties for separate 12

violations of this Decree. 13

38. If Defendants fail to pay stipulated penalties according to the terms of t his Decree, 14

Defendants shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961, 15

accruing as of the date payment became due. Nothing in this Paragraph shall be construed to 16

limit the United States from seeking any remedy otherwi se provided by law for Defendants ’ 17

failure to pay any stipulated penalties. 18

39. Subject to the provisions of Section XII of this Decree (Effect of Settlement 19

/Reservation of Rights), the stipulated penalties provided for in this Decree shall be in addition to 20

any other rights, remedies, or sanctions available to the United States for Defendants ’ violation 21

of this Decree or Title VI of the CAA, 42 U.S.C. § 7401 et. seq. and/or 40 C.F.R. Part 82, 22

Subpart F. Defendants shall be allowed a credit for any stipulate d penalties paid against any 23

statutory penalties imposed for such violation. 24

VIII

. FORCE MAJEURE 25

40. A Force M ajeure event , for purposes of this Decree, is defined as any event 26

arising from causes beyond the control of Defendants , of any entity controlled by Defendants or 27- 13

- of Defendants ’ contractors, that delays or prevents the performance of any obligation under t his 1

Decree despite Defendants ’ best efforts to fulfill the obligation. The requirement that 2

Defendant s exercise best efforts to fulfill the obligati on includes using best efforts to anticipate 3

any potential force majeure event and best efforts to address the effects of any such event (a) as it 4

is occurring and (b) after it has occurred to prevent or minimize any resulting delay to the 5

greatest extent possible. Force Majeure event does not include Defendant s ’ financial inability to 6

perform any obligation under this Decree. 7

41. If any event occurs or has occurred that may delay the performance of any 8

obligation under this Decree, whether or not caused by a force majeure event, Defendants shall 9

provide notice orally to U.S. EPA, Region 10 at 206

- 553

- 1200 , within 3 Days (72 consecutive 10

hours) of when Defendants first knew that the event might cause a delay. Within 15 Days of the 11

date of Defendant s ’ initial notice under this Paragraph, Defendant s shall provide in writing to the 12

individuals identified in Paragraph 5 7 and to the Director of the Office of Compliance and 13

Enforcement at EPA Region 10 an explanation and description of the reasons for the d elay; the 14

anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the 15

delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay 16

or the effect of the delay; Defendant s ’ rationale for attributing such delay to a F orce M ajeure 17

event if it intends to assert such a claim; and a statement as to whether, in the opinion of 18

Defendant s , such event may cause or contribute to an endangerment to public health, welfare or 19

the environment. Defenda nt s shall i nclude with any notice all av ailable documentation 20

supporting the claim that the delay was attributable to a force majeure. Failure to comply with 21

the above requirements shall preclude Defendant s from asserting any claim of F orce M ajeure for 22

th at event for the period of time of such failure to comply, and for any additional delay caused by 23

such failure. 24

42. EPA shall make reasonable efforts to notify Defendant s within thirty (30) Days in 25

writing of its agreement or disagreement with Defendant s ’ cl aim of Force Majeure after receipt 26

of the written notice provided by Defendant s under Paragraph 41

. If EPA agrees that the delay 27- 14

- or anticipated delay is attributable to a F orce M ajeure event, the time for performance of the 1

obligations under this Decree that are affected by the Force Majeure event may be extended by 2

EPA for such time as is necessary to complete those obligations. An extension of the time for 3

performance of the obligations affected by the F orce M ajeure event shall not, of itself, extend t he 4

time for performance of any other obligation not affected by the Force Majeure

. EPA will notify 5

Defendant s in writing of the length of the extension, if any, for performance of the obligations 6

affected by the F orce M ajeure event. 7

43. If EPA does not agree that the delay or anticipated delay has been or will be 8

caused by a Force Majeure event , EPA’s position shall be binding, unless Defendant invoke s 9

Dispute Resolution under Section I X of t his Decree within fifteen days after receipt of EPA’s 10

written notice

. In any such dispute, Defendant s bear s the burden of proving, by a preponderance 11

of the evidence, that the delay or anticipated delay has been or will be caused by a Force Majeure 12

event; that Defendant s gave the notice required in this Section; that the d uration of the delay or 13

the extension sought was or will be warranted under the circumstances; and that Defendant s 14

exercised best efforts to prevent or minimize any delay caused by the Force Majeure event. 15

I X. DISPUTE RESOLUTION 16

44. E xcept as otherwise provided in this Decree, the dispute resolution procedures of 17

this Section shall be the exclusive mechanism to resolve disputes arising under or with respect to 18

this Decree. Defendant s ’ failure to seek resolution of a dispute under this Section shall prec lude 19

Defendant s from raising any such issue as a defense to an action by the United States to enforce 20

any obligation of Defendant s arising under this Decree. 21

45. Any dispute subject to Dispute Resolution under this Decree shall be the subject 22

of informal negot iations. The dispute shall be considered to have arisen when Defendants send 23

the United States a written n otice of d ispute in accordance with Section X I V of this Decree 24

(Notices) . Such n otice of d ispute shall state clearly the matter and the reason for t he dispute. 25

The period of informal negotia t ions shall not exceed 6 0 Days from the date the dispute arises, 26

unless that period is modified by written agreement. If the Parties cannot resolve a dispute by 27- 15

- informal negotiations, then the position advanced b y the United States shall be considered 1

binding unless within 15 Days Defendants appeal the dispute to the District Court. 2

46. Except as otherwise provided in this Decree, in any dispute brought under this 3

Section , Defendant shall bear the burden of demonstrat ing that its position complies with this 4

Decree

. The United S t ates reserves the right to argue that its position is reviewable only on the 5

administrative record and must be upheld unless arbitrary and capricious or otherwise not in 6

accordance with law

. 7

X. INFORMATION COLLECTION AND RETENTION 8

47. The United States and its representatives, including attorneys, contractors, and 9

consultants, shall have the right of entry into any F acility covered by this Decree, at all 10

reasonable times, upon presentation of credentials, to: 11

a. M onitor the progress of activities required under this Decree; 12

b. V erify any data or information submitted to the United States in 13

accordance with the terms of this Decree; 14

c. O btain documentary evidence, including photographs and similar data; 15

and 16

d. A ssess Defendant s ’ compliance with this Decree. 17
For the purpose of this Decree, the phrase “all reasonable times” shall mean between the 18

hours of 8:00 AM and 5:00 PM, Monday through Friday, excluding holidays. 19

48. Until the Court enters an order terminati ng the Consent Decree

, Defendant shall 20

retain, and shall instruct their contractors and agents to preserve, all non

- identical copies of all 21

documents, records, or other information (including documents, records, or other information in 22

electronic form) in their or their contractors ’, or agents ’ possession or control, or that come into 23

their or their contractors ’ or agents ’ possession or control, and that relate in any manner to 24

Defendant s ’ performance of their obligations under this Decree. This informat ion

- retention 25

requirement shall apply regardless of any contrary corporate or institutional policies or 26

procedures. At any time during this information

- retention period, upon request by the United 27- 16

- States, Defendant s shall provide copies of any documents, records, or other information required 1

to be maintained under this Paragraph

, subject to Defendants ’ right to assert a privilege as set 2

forth in Paragraph 44

. Regardless of the termination of this Consent Decree, Defendant s are 3

required to generate and maintain records in accordance with 40 C.F.R. § 82.166

. 4

49. At the conclusion of the document retention period in the preceding Paragraph, 5

Defendant s shall notify the United States at least 90 Days prior to the destruction of any reco rds 6

or documents subject to the requirements of the preceding Paragraph, and, upon request by the 7

United States, Defendant s shall deliver any such records or documents to EPA. Defendant s may 8

assert that certain documents, records, or other information are privileged under the attorney 9

client privilege or any other privilege recognized by Washington or federal law. If Defendants 10

assert such privilege, they shall provide the following: (1) the title of the document, record, or 11

information; (2) the date of the document, record, or information; (3) the name and title of each 12

author of the document, record, or information; (4) the name and title of each addressee and 13

recipient; (5) a description of the subject of the document, record, or information; and (6) the 14

privilege asserted by Defendant s . However, no document, records, data, or other information 15

created or generated as required by this Decree shall be wit hheld on grounds of privilege. This 16

Decree in no way limits or affects any right of entry and insp ection, or any right to obtain 17

information, held by the United State s pursuant to applicable federal or state laws, regulations

, or 18

permits. 19

XI. FAILURE OF COMPLIANCE 20

50. Notwithstanding the United States’ review and approval of any documents 21

submitted to it by Defendant s pursuant to this Decree, Defendant s shall remain solely responsible 22

for compliance with the terms of the CAA, its implementing regulations, and this Decree. 23

X I I. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 24

51. This Decree resolves , and the Unite d States covenants not to sue Defendant s for, 25

the civil claims of the United States for the violations alleged in the Complaint in this action 26

through the date of lodging of this Consent Decree. This Consent Decree’s resolution of the 27- 17

- United States’ claim, and the United States’ correspond ing covenant not to sue, are conditioned 1

upon Defendants ’ satisfactory compliance with the requirements of this Consent Decree. 2

52. The United State s reserves all legal and equitable remedies available to enforce 3

the pr ovisions of this Decree. This Decree shall not be construed to limit the rights of the United 4

States to obtain penalties or injunctive relief under the CAA or its implementing regulations, or 5

under other federal laws, regulations, or permit conditions, ex cept as expressly specified in 6

Paragraph 5 1

. The United States further reserves all legal and equitable remedies to address any 7

imminent and substantial endangerment to the public health or welfare or the environment 8

arising at, or posed by, Defendants ’ F acilities , whether related to the violations addressed in this 9

Decree or otherwise. 10

53. This Decree is not a permit, or a modification of any permit, under any federal, 11

s tate , or local laws or regulations. Defendants are responsible for achieving and maintain ing 12

complete compliance with all applicable federal, s tate , and local laws, regulations, and permits; 13

and Defendants ’ compliance with this Decree shall be no defense to any action commenced 14

pursuant to any such laws, regulations, or permits, except as set forth herein. The United States 15

does not, by its consent to the entry of this Decree, warrant or aver in any manner that 16

Defendants ’ compliance with any aspect of this Decree will result in compliance with provisions 17

of the CAA

, including 42 U.S.C. § 7671 g and the implementing regulations at 40 C.F.R. Part 82, 18

Subpart F or with any other provisions of federal, s tate , or local laws, regulations, or permits. 19

54. This Decree does not limit or affect the rights of Defendants or of the United 20

States against any third parties not party to this Decree, nor does it limit or otherwise affect the 21

rights of third parties not party to this Decree, against Defendants , except as otherwise provided 22

by law. 23

55. This Decree shall not be construed to create rights in, or grant an y cause of action 24

to, any third party not party to this Decree. 25- 18

- XI II

. COSTS 1

56. Each Party shall bear its own costs associated with this action, including 2

attorneys’ fees, except that the United States shall be entitled to collect the costs (including 3

attorneys’ fees) incurred in any action necessary to collect any portion of the civi l penalty or any 4

stipulated penalties due but not paid by Defendants brought in accordance with Sections IV 5

(Civil Penalty) and VII (Stipulated Penalties) herein. 6

X I V. NOTICES 7

57. Unless otherwise specified herein, whenever notifications, submissions, or 8

comm unications are required by this Decree, they shall be made in writing and addressed as 9

follows: 10

To the United States
Chief, Environmental Enforcement Section 12 : 11

Environment and Natural Resources Division 13 U.S. Department of Justice Ben Franklin Station 14 Box 7 611 Washington, DC 20044

- 7611 15

To the Environmental Protection Agency Shirin Venus 17 : 16

U.S. Environmental Protection Agency, Region 10 Office of Regional Counsel 18 1200 Sixth Ave, Suite 900 Mail Stop ORC

- 158 19 Seattle, WA 98101 20 Kat ie McClintock U.S. Environmental Protection Agency, Region 10 21 Office of Compliance and Enforcement 1200 Sixth Ave, Suite 900 22 Mail Stop OCE

- 127 Seattle, WA 98101 23 McClintock.Katie@epa.gov 24

25 To Defendants : 26

Pat Hardina Icicle Seafoods 4019 21 st Avenue W Seattle, WA 98199 path@icicleseafoods.com- 19

- Elaine Spencer Graham & Dunn PC 2801 Alaskan Way, Suite 300 Seattle, WA 98121

- 1128 espencer@grahamdunn.com

G&D, Inc. 2801 Alaskan Way, Suite 300 Seattle, WA 98121

- 1128

58. Any Party may, by written notice to the other Parties, change its designated notice 1

recipient or notice address provided above. 2

59. Notice s submitted pursuant to this Section shall be deemed submitted upon 3

mailing, unless othe rwise provided in this Decree or by mutual agreement of the Parties in 4

writing. 5

XV. EFFECTIVE DATE 6

60. The Effective Date of this Decree shall be the date upon which this Decree is 7

entered by the Court or a motion to enter this Decree is granted, whichever oc curs first, as 8

recorded on the Court’s docket. 9

XVI. RETENTION OF JURISDICTION 10

61. The Court shall retain jurisdiction over this case until termination of this Decree, 11

for the purpose of enabling any of the Parties to apply to the Court for such further order, 12

direction, or relief as may be necessary or appropriate for the construction or modification of this 13

Decree, or to effectuate or enforce compliance with its terms, or to resolve disputes in 14

accordance with Section I X of this Decree (Dispute Resolution). 15

XVII. MODIFICATION 16

62. The terms of this Decree may be modified only by a subsequent written 17

agreement signed by all of the parties. Where the modification constitutes a material change to 18

this Decree, it shall be effective only upon approval by the Court. 19

63. A ny disputes concerning modification of this Decree shall be resolved pursuant to 20

Section I X of this Decree (Dispute Resolution), provided, however, that, instead of the burden of 21

proof provided by Section I X, the Party seeking the modification in any such dispute bears the 22- 20

- burden of demonstrating that it is entitled to the requested modification in accordance with 1

Federal Rule of Civil Procedure 60(b). 2

X V I II

. TERMINATION 3

64. A fter a period of five years from the entry of the Consent decree, Defendants may 4

serv e upon the United States a Request for Termination, stating that they ha ve satisfactorily 5

complied with all requirements of paragraphs 12 through 1 7 of this Decree, have paid the civil 6

penalty and any accrued Stipulated Penalties as required by this Decree

, and have satisfied all 7

other material requirements of the Consent Decree. Defendants shall submit with their request 8

for Termination all documentation necessary to demonstrate compliance with Paragraphs 12

- 17

. 9

Defendants shall not be required to resubm it documentation previously submitted but can instead 10

reference the date of any previous submittals that document Defendants’ performance. 11

Following receipt by the United States of Defendants’ Request for Termination, the Parties shall 12

confer informally concerning the Request and any disagreement that the Parties may have as to 13

whether Defendants ha ve satisfactorily complied with the requirements for termination of this 14

Decree. The United State s shall respond in writing to the Request for Termination within sixty 15

(60) days of the Request for Termination being delivered

. 16

65. If the United States agrees that the Decree may be terminated, the Parties shall 17

within 30 days of receiving EPA’s agreemen t submit, for the Court ’ s approval, a joint stipulation 18

terminating the Decree. The United States shall not unreasonably withhold its agreement to 19

terminate this Decree. 20

66. If the United States does not agree that the Decree may be terminated, Defendants 21

may invoke Dispute Resolution under Section IX of this Decree. In any such dispute, the 22

Defendants shall bear the burden of proving by a preponderance of the evidence that they have 23

satisfied all of their obligations under this Consent Decree. 24

X I X. PUBLIC PARTICIPATION 25

67. This Decree shall be lodged with the Court for a period of not less than 30 Days 26

for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States reserves 27- 21

- the right to withdraw or withhold its consent if the comments regarding th is Decree disclose facts 1

or considerations indicating that th is Decree is inappro priate, improper, or inadequate

. 2

Defendant s consent to entry of this Decree without furth er notice and agree not to withdraw from 3

or oppose entry of this Decree by the Court or to challenge any provision of th is Decree, unless 4

the United States has notified Defendants in writing that it no longer supports entry of th is 5

Decree. 6

XX. SIGNATORIES /SERVICE 7

68. Each undersigned representative of Defendants

, and the Assistant Attorney 8

General of the Environment and Natural Resources Division of the Department of Justice

, 9

certifies that he or she is fully authorized to enter into the terms and conditions o f this Decree 10

and to execute and legally bind the Party he or she represents to this document. 11

69. This Decree may be signed in counterparts, and its validity shall not be challenged 12

on that basis. Defendants agree to accept service of process by mail with re spect to all matters 13

arising under or relating to this Decree and to waive the formal service requirements set forth in 14

Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of this 15

Court including, but not limited to, servic e of a summons. 16

XX I

. INTEGRATION 17

70. This Decree and attachments constitute the final, complete, and exclusive 18

agreement and understanding among the Parties with respect to the settlement embodied in the 19

Decree and supersedes all prior agreements and understa ndings, whether oral or written, 20

concerning the settle ment embodied herein. Other than deliverables that are subsequently 21

submitted and approved pursuant to this Decree, no other document, nor any representation, 22

inducement, agreement, understanding, or promise, constitutes any part of this Decree or the 23

settlement it represents, nor shall it be used in construing the terms of this Decree. 24

XXII. FINAL JUDGMENT 25

71. Upon approval and entry of this Decree by the Court, this Decree shall constitute 26

a final judgm ent of the Court as to the United States and Defendants

. 27- 22

- 1

Dated and entered this ____ day of __________, 2012

. 2

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___________________________________ 5

UNITED STATES DIST RICT JUDGE 6 Western District of Washington 7

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21 THE UNDERSIGNED PARTIES enter into this Decree in the matter of United States v.

American Seafoods Company LLC and Pacific Longline Company LLC, Civil Action No.

FOR PLAINTIFF UNITED STATES OF AMERICA:

Date: (4'¢'~Z IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division

U.S. Department of Justice Washington, D.C. 20530

JENNY DURKAN United States Attorney

Western District of Washington

ELLEN MAHAN
Deputy Section Chief
Environmental Enforcement Section
Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611 Washington, DC 20044 -7611

SEAN CARMAN
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611 Washington, DC 20044 -7611 (202) 514 -2746

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?~ ~~ COUI~rSEL:

S:C- IIR.I.N VENUS
Ass:isiant Regional Counsel
Environmental Protection Ag ncy :Region l.0

1200. Si.x1:13 Ave. Seattle, W~ 98101 BRIAN C. KIPNTS Assistant United States Attacney Senior Litigation Counsel. Of.:tice cif the United States Attori~e~= for th.e

~~'estern District of Washington
5200 United States Courthouse 700 Ste«~arC Street Seattle, WA 98 I.O l - ]

27I

ALL L. STERN
Re~ioi~al Counsel

U.S. ~nvi~•onmental Proteetian. Agency
Of:.~ce of Kebional C~uilsel Region 14

1200 Sixth rive.
Seattle,

~~ %A 9~ 1.01

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