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15 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON 

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

17 )

18 Plaintiff, ) 

) 

v. )

) 

19 CONSENT DECREE

20 ICICLE SEAFOODS, INC., EVENING STAR, )

21 INC., ICICLE ACQUISITION SUBSIDIARY, ) 

22 LLC, and LFK, INC., )

23 ) 

Defendants. ) ) 

24
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I. JURISDICTION AND VENUE..........................................................................................- 3 -

1 TABLE OF CONTENTS

2

3 II. APPLICABILITY ................................................................................................................- 4 -

4 III. DEFINITIONS.....................................................................................................................- 4 -

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

6 V. COMPLIANCE REQUIREMENTS......................................................................................- 7 -

7 VI. REPORTING REQUIREMENTS......................................................................................- 10 -

8 VII. STIPIULATED PENALTIES .........................................................................................- 10 -

9 VIII FORCE MAJEURE . .......................................................................................................- 12 -

10 IX. DISPUTE RESOLUTION ............................................................................................. - 15 -

11 X. INFORMATION COLLECTION AND RETENTION ....................................................- 16 -

12 XI. FAILURE OF COMPLIANCE ..........................................................................................- 16 -

13 XII. EFFECT OF SETTLEMENT / RESERVATION OF RIGHTS .......................................- 18 -

14 XIII. COSTS .............................................................................................................................- 18 -

15 XIV. NOTICES.........................................................................................................................- 19 -

16 XV. EFFECTIVE DATE..........................................................................................................- 19 -

17 XVI. RETENTION OF JURISDICTION ................................................................................- 19 -

18 XVII. MODIFICATION...........................................................................................................- 20 -

19 XVIII. TERMINATION...........................................................................................................- 20 -

20 XIX. PUBLIC PARTICIPATION............................................................................................- 21 -

21 XX. SIGNATORIES/SERVICE...............................................................................................- 21 -

22 XXI. INTEGRATION ..............................................................................................................- 21 -

23 XXII. FINAL JUDGMENT ............................................................................ - 21-

24
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1 WHEREAS, Plaintiff United States of America, on behalf of the United States 

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

3 113(b) of the Clean Air Act, 42 U.S.C. 7413(b), alleging that Defendants Icicle Seafoods, Inc., 

4 Evening Star, Inc., Icicle Acquisition Subsidiary, LLC, and LFK, Inc. (Defendants), have

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

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

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

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

9 the occurrences or violations alleged in the Complaint; and

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

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

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

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

14 matter; 

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

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

17 ORDERED, and DECREED as follows:

18 I. JURISDICTION AND VENUE

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

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

21 over the Parties.

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

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

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

25 action to enforce this Decree, Defendants consent to this Court’s jurisdiction over this Decree 

26 and any such action over Defendants, and Defendants consent to venue in this judicial district.
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1 3. Solely for purposes of this Decree, Defendants agree that the Complaint states 

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

3 7413(b), Section 608 of the CAA, 42 U.S.C. § 7671g, and 40 C.F.R. Part 82, Subpart F. 

4 II. APPLICABILITY

5 4. The obligations of this Decree apply to and are binding upon the United States, 

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

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

8 entities or persons otherwise bound by law.

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

10 so long as they are owned and/or operated by Defendants.

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

12 failure by any of their officers, directors, employees, agents, or contractors or any of their

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

14 III. DEFINITIONS

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

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

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

18 following definitions shall apply.

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

20 action;

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

22 hereto;

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

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

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

26 run until the close of business of the next working day;
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1 d. “Defendants” shall mean defendants Icicle Seafoods, Inc., Evening Star, 

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

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

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

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

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

7 and any of its successor departments or agencies;

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

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

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

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

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

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

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

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

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

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

18 CFR § 82.152 which Defendants may acquire during the effective period 

19 of this Consent Decree.

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

21 numeral;

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

23 numeral; and

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

25 IV. CIVIL PENALTY

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

27 sum of $430,000 (four-hundred thirty thousand dollars) as a civil penalty in accordance with 
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1 the payment instructions set forth in Paragraph 9. If any portion of the civil penalty is past due to 

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

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

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

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

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

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

8 Defendants, following lodging of this Decree. Defendants shall pay the civil penalty to the 

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

10 700 Stewart Street, Suite 5220, Seattle, WA 98101-1271, (206) 553-1866. At the time of 

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

12 record, together with a transmittal letter, to the United States in accordance with Section XIV of 

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

14 U.S. EPA Cincinnati Finance Office

15 26 Martin Luther King Drive

16 Cincinnati, Ohio 45268

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

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

19 assigned to this case and DOJ case number 90-5-1-1-07395/2.

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

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

22 V. COMPLIANCE REQUIREMENTS

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

24 Clean Air Act, 42 U.S.C. § 7671g(c), and its implementing regulations at 40 C.F.R. Part 82, 

25 Subpart F, except as otherwise specified in this Consent Decree.

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

27 Victor, the Adak facility main refrigeration system, the Egegik facility main refrigeration system, 
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1 the Larson Bay facility ice machine, the Egegik facility ice machine, and the Scatter Creek 

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

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

4 will exceed 20% of the total charge during a 12-month period, Defendants shall repair any and 

5 all leaks in accordance with 40 C.F.R. § 82.156(i)(2). Repairs must bring annual leak rates to 

6 below 20 percent during a 12-month period. Defendants must comply with all other 

7 requirements of 40 C.F.R. Part 82, Subpart F, pertaining to these repairs. If, during the five-year 

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

9 82.156(i)(2) that requires a leak-rate of less than 20% as the trigger rate for leak repairs, that 

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

11 13. Defendants shall, by December 31, 2013, fully implement the Comprehensive 

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

13 shall repair all leaks of R-22 identified during its inspection of each of the main refrigeration 

14 systems at the facilities identified in Appendix 1, and shall perform initial and follow-up 

15 verification tests, in accordance with all requirements for repairs and initial and follow-up 

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

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

18 perform the Comprehensive Leak Inspection and Repair Plan, so that EPA may observe such 

19 activities. 

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

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

22 shall timely submit and complete the appropriate permit applications.

23 VI. RECORDKEEPING AND REPORTING REQUIREMENTS

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

25 Inspection and Repair of each of the Facilities subject to the requirements of Paragraph 13. The 

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

27 later of the entry of the Consent Decree or the completion of the actions required pursuant to 
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1 Attachment 1 at each Facility, and shall specify: (1) all of the leaks that were detected on the 

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

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

4 verification testing.

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

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

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

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

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

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

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

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

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

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

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

16 submissions until Termination of the Consent Decree. 

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

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

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

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

21 review of the reports and any findings of deficiencies.

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

23 of this Decree, Defendants shall notify EPA of such violation and its likely duration, in writing, 

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

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

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

27 time the report is due, Defendants shall so state in the report. Defendants shall investigate the 
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1 cause of the violation and shall then submit an amendment to the report, including a full 

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

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

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

5 Majeure).

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

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

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

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

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

11 22. All reports shall be submitted to the person(s) designated in Section XIV of this 

12 Decree (Notices).

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

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

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

16 attachments were prepared under my direction or supervision in 

17 accordance with a system designed to assure that qualified personnel 

18 properly gather and evaluate the information submitted. Based on my 

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

20 directly responsible for gathering the information, the information 

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

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

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

24 knowing violations.”

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

26 compliance would be impractical.
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1 24. The reporting requirements of this Decree do not relieve Defendants of any 

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

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

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

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

6 law.

7 VII. STIPULATED PENALTIES

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

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

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

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

12 reports or notifications according to all applicable requirements of this Decree and within the 

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

27. Late Payment of Civil Penalty

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

22 violation of any of the requirements specified in Paragraphs 11-15 and 17:

14 : If Defendants fail to pay the civil penalty required 

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

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

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

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

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

20 information set forth in Section IV.

Penalty Per Violation Per Day

24 $125 1st through 14th Day

23 Period of Noncompliance

25 $250 15th through 30th Day

26 $750 31st Day and beyond
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1 29. For each failure to record information required by Paragraph 16, Defendants shall 

2 pay a stipulated penalty of $125. 

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

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

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

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

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

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

9 penalties will not begin to accrue until the expiration of the 20-Day period. However, if the 

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

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

12 submission and shall be payable notwithstanding any subsequent submission.

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

14 United States’ written demand.

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

16 waive Stipulated Penalties otherwise due it under this Decree.

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

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

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

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

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

22 together with interest, to the United States within 30 Days of the Effective Date of the 

23 agreement or the receipt of EPA’s decision or order.

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

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

26 owing, together with interest, within 60 Days of receiving the Court’s decision or order, 

27 except as provided in subparagraph c, below.
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1 c. If any Party appeals the District Court’s decision, Defendant shall pay all 

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

3 receiving the final appellate court decision.

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

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

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

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

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

9 calculating its federal income tax.

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

11 the accrual of such penalties.

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

13 violations of this Decree.

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

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

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

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

18 failure to pay any stipulated penalties.

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

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

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

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

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

24 statutory penalties imposed for such violation.

25 VIII. FORCE MAJEURE

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

27 arising from causes beyond the control of Defendants, of any entity controlled by Defendants or 
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1 of Defendants’ contractors, that delays or prevents the performance of any obligation under this 

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

3 Defendants exercise best efforts to fulfill the obligation includes using best efforts to anticipate 

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

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

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

7 perform any obligation under this Decree.

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

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

10 provide notice orally to U.S. EPA, Region 10 at 206-553-1200, within 3 Days (72 consecutive 

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

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

13 individuals identified in Paragraph 57 and to the Director of the Office of Compliance and 

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

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

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

17 or the effect of the delay; Defendants’ rationale for attributing such delay to a Force Majeure 

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

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

20 the environment. Defendants shall include with any notice all available documentation 

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

22 the above requirements shall preclude Defendants from asserting any claim of Force Majeure for 

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

24 such failure. 

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

26 writing of its agreement or disagreement with Defendants’ claim of Force Majeure after receipt 

27 of the written notice provided by Defendants under Paragraph 41. If EPA agrees that the delay 
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1 or anticipated delay is attributable to a Force Majeure event, the time for performance of the 

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

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

4 performance of the obligations affected by the Force Majeure event shall not, of itself, extend the 

5 time for performance of any other obligation not affected by the Force Majeure. EPA will notify 

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

7 affected by the Force Majeure event.

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

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

10 Dispute Resolution under Section IX of this Decree within fifteen days after receipt of EPA’s 

11 written notice. In any such dispute, Defendants bears the burden of proving, by a preponderance 

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

13 event; that Defendants gave the notice required in this Section; that the duration of the delay or 

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

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

16 IX. DISPUTE RESOLUTION

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

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

19 this Decree. Defendants’ failure to seek resolution of a dispute under this Section shall preclude 

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

21 any obligation of Defendants arising under this Decree.

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

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

24 the United States a written notice of dispute in accordance with Section XIV of this Decree 

25 (Notices). Such notice of dispute shall state clearly the matter and the reason for the dispute. 

26 The period of informal negotiations shall not exceed 60 Days from the date the dispute arises, 

27 unless that period is modified by written agreement. If the Parties cannot resolve a dispute by 
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1 informal negotiations, then the position advanced by the United States shall be considered 

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

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

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

5 Decree. The United States reserves the right to argue that its position is reviewable only on the 

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

7 accordance with law.

8 X. INFORMATION COLLECTION AND RETENTION

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

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

11 reasonable times, upon presentation of credentials, to:

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

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

14 accordance with the terms of this Decree;

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

16 and

17 d. Assess Defendants’ compliance with this Decree.

18 For the purpose of this Decree, the phrase “all reasonable times” shall mean between the 

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

20 48. Until the Court enters an order terminating the Consent Decree, Defendant shall 

21 retain, and shall instruct their contractors and agents to preserve, all non-identical copies of all 

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

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

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

25 Defendants’ performance of their obligations under this Decree. This information-retention 

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

27 procedures. At any time during this information-retention period, upon request by the United 
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1 States, Defendants shall provide copies of any documents, records, or other information required 

2 to be maintained under this Paragraph, subject to Defendants’ right to assert a privilege as set 

3 forth in Paragraph 44. Regardless of the termination of this Consent Decree, Defendants are

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

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

6 Defendants shall notify the United States at least 90 Days prior to the destruction of any records 

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

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

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

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

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

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

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

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

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

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

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

18 information, held by the United States pursuant to applicable federal or state laws, regulations, or 

19 permits.

20 XI. FAILURE OF COMPLIANCE

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

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

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

24 XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

25 51. This Decree resolves, and the United States covenants not to sue Defendants for,

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

27 through the date of lodging of this Consent Decree. This Consent Decree’s resolution of the 
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1 United States’ claim, and the United States’ corresponding covenant not to sue, are conditioned 

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

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

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

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

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

7 Paragraph 51. The United States further reserves all legal and equitable remedies to address any 

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

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

10 Decree or otherwise.

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

12 state, or local laws or regulations. Defendants are responsible for achieving and maintaining 

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

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

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

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

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

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

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

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

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

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

23 by law.

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

25 to, any third party not party to this Decree.
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1 XIII. COSTS

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

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

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

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

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

7 XIV. NOTICES

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

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

10 follows:

To the United States

12 Chief, Environmental Enforcement Section

11 :

13 Environment and Natural Resources Division

U.S. Department of Justice 

14 Ben Franklin Station

Box 7611 

15 Washington, DC 20044-7611

To the Environmental Protection Agency

17 Shirin Venus

16 :

U.S. Environmental Protection Agency, Region 10

18 Office of Regional Counsel

1200 Sixth Ave, Suite 900

19 Mail Stop ORC-158

Seattle, WA 98101

20

Katie McClintock

21 U.S. Environmental Protection Agency, Region 10

Office of Compliance and Enforcement 

22 1200 Sixth Ave, Suite 900

Mail Stop OCE-127

23 Seattle, WA 98101

24 McClintock.Katie@epa.gov

25

26 To Defendants:

Pat Hardina

Icicle Seafoods

4019 21st Avenue W

Seattle, WA 98199

path@icicleseafoods.com
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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

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

2 recipient or notice address provided above.

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

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

5 writing.

6 XV. EFFECTIVE DATE

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

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

9 recorded on the Court’s docket.

10 XVI. RETENTION OF JURISDICTION

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

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

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

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

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

16 XVII. MODIFICATION

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

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

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

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

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

22 proof provided by Section IX, the Party seeking the modification in any such dispute bears the 
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1 burden of demonstrating that it is entitled to the requested modification in accordance with 

2 Federal Rule of Civil Procedure 60(b).

3 XVIII. TERMINATION

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

5 serve upon the United States a Request for Termination, stating that they have satisfactorily 

6 complied with all requirements of paragraphs 12 through 17 of this Decree, have paid the civil 

7 penalty and any accrued Stipulated Penalties as required by this Decree, and have satisfied all 

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

9 for Termination all documentation necessary to demonstrate compliance with Paragraphs 12-17. 

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

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

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

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

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

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

16 (60) days of the Request for Termination being delivered. 

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

18 within 30 days of receiving EPA’s agreement submit, for the Court’s approval, a joint stipulation 

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

20 terminate this Decree.

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

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

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

24 satisfied all of their obligations under this Consent Decree. 

25 XIX. PUBLIC PARTICIPATION

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

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

1 the right to withdraw or withhold its consent if the comments regarding this Decree disclose facts 

2 or considerations indicating that this Decree is inappropriate, improper, or inadequate. 

3 Defendants consent to entry of this Decree without further notice and agree not to withdraw from 

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

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

6 Decree.

7 XX. SIGNATORIES/SERVICE

8 68. Each undersigned representative of Defendants, and the Assistant Attorney 

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

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

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

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

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

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

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

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

17 XXI. INTEGRATION

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

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

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

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

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

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

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

25 XXII. FINAL JUDGMENT

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

27 a final judgment of the Court as to the United States and Defendants.
- 22 -

1

2 Dated and entered this ____ day of __________, 2012.

3

4

5 ___________________________________

6 UNITED STATES DISTRICT JUDGE

7 Western District of Washington 

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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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