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1 2 3 4 5 6 7 8 9 10 11 12 13

UNITED STATES DISTRICT COURT 14 WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, ) Civil Action No.: 15 ) 16 Plaintiff

, ) 17 )

v. ) CONSENT DECREE 18 ) AMERICAN SEAFOODS COMPANY ) 19 LLC and PACIFIC LONGLINE ) 20 COMPANY LLC, ) 21 ) 22 Defendants. ) )

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- TABLE OF CONTENTS 1

I. JURISDICTION AND VENUE

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

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II. APPLICABILITY

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III. DEFINITIONS

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

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IV. CIVIL PENALTY

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

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V. EFFEC TIVE RETIREMENT OF CONSUMPTION ALLOWANCES

.............................. - 6

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VI. COMPLIANCE REQUIREMENTS

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VII. REPORTING REQUIREMENT S

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

- 8

VIII. STIPIULATED PENALTIES

................................ ................................ ........................ - 1 3

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I X. FORCE MAJEURE

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X. DISPUTE RESOLUTION

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

- 11

XI. INFORMATION COLLECTION AND RETENTION

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XII. FAILURE OF COMPLIANCE

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XI II

. EFFECT OF SETTLEMENT / RESERVATION OF RIGHTS

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X I V. COST S

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XV. NOT I CES

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XVI. EFFECTIVE D ATE

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XVII. RETENTION OF JURISDICTION

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X VIII

. MODIFICATION

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X I X. TERMINATION

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XX. PUBLIC PARTICIPATION

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XXI. SIGNATORIES/SERVICE

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XXII. INTEGRATION

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XXIII. 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 complaint in this action pursuant to Section 2

113(b) of the Clean Air Act, 42 U.S.C. 7413(b), alleging that Defendant s American Seafoods 3

Company LLC and Pacific Longline Company LLC (Defendants)

, ha ve violated regulations 4

promulgated by EPA pursuant to Title VI of the Clean Air Ac t (CAA) , specifically regulations 5

set forth in 40 C.F.R. Part 82, Subpart s A and F ; 6

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

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

the occurrences or violations alleged in the Complaint ; and 9

WHEREAS, t he United States and Defendant s (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

matter; 14

NOW THEREFORE, without the adjudication or admi ssion 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 Defendant s 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, Defendant s conse nt to th is Court ’ s jurisdiction over this Decree 25

and any such action over Defendant s, and Defendants consent to venue in this judicial district. 26- 4

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3. Solely for purposes of this Decree, Defendant s 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, Subparts A and F. 3

II. APPLICABILITY 4

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

and upon Defendant s and any successors, assigns, or other entities or persons otherwise bound 6

by law. 7

5. In any action to enforce this Decree, Defendant s shall not raise as a defense the 8

failure by any of its officers, directors, employees, agents, or contractors to take any actions 9

necessary to comply with the provisions of this Decree. 10

III. DEFINITIONS 11

6. Except as otherwise set forth herein, terms used in this Decree that are defined in 12

Title VI of the CAA, 42 U.S.C. § 7401 et. seq. , and 40 C.F.R. Part 82 , Subpart s A and F shall 13

have the meanings contained therein. Whenever the terms set forth below are used in this 14

Decree, the following definitions shall apply. 15

a. “Complaint” shall mean the complaint filed by the United States in this 16

action; 17

b. “Consent Decree” or “Decree” shall mean this Decree and all appendices 18

hereto ; 19

c. “Day” shall mean a calendar day unless expressly stated to be a working 20

day. In computing any period of time under this Decree, where the last 21

day would fall on a Saturday, Sunday, or federal holiday, the period shall 22

run until the close of business of the next working day; 23

d. “Defendant s ” shall mean American Seafoods Company LLC and Pac ific 24

Longline Company LLC ; 25

e. “ EPA ” shall mean the United States Environmental Protection Agency 26

and any of its successor departments or agencies; 27- 5

- f. “ Effective Date ” shall mean the date upon which this Decree is entered by 1

the Court or a motion to enter this De cree is granted, whichever occurs 2

first, as recorded on the Court’s docket ; 3

g. “Facility” shall mean the following vessels owned or operated by the 4

Defendant s : the Highland Light , the Northern Jaeger , the Ocean Rover

, 5

the American Triumph , the American Dynasty , and the Katie Ann ; 6

h. “Paragraph” shall mean a portion of this Decree identified by an Arabic 7

numeral; 8

i. “Non

- Affiliated Third Party” shall mean a person or entity without any 9

ownership interest in or other legal ownership relationship to the 10

Defendants, including but not limited such ownership interest or other 11

legal ownership relationship as that of a parent

, subsidiary, or sibling 12

corporation. 13

j. “Non

- ODS Refrigerant” shall mean a refrigerant substance that is not 14

listed as a controlled su bstance in 40 C.F.R. Part 82, Subpart A, 15

Appendices A or B, or as an ozone

- depleting chemical in 40 C.F.R. Part 16

82, Subpart A, Appendix F ; 17

k. “ Section ” shall mean a portion of this Decree identified by a R oman 18

numeral; and 19

l. “United States” shall mean the United States of America. 20

IV. C IVIL PENALTY 21

7. Within 30 Days after the Effective Date of this Decree, Defendant s shall together 22

pay the sum of $ 700 , 00 0 (seven

- hundred thousand dollars) as a civil penalty in accordance 23

with the payment instructions set forth in Paragraph 8

. If any portion of the civil penalty is past 24

due to the United States following expiration of the 30 Day period, Defendant s shall pay , on the 25

past due amount, interest acc ruing from the Effective Date of this Decree through the date of 26- 6

-

pay ment at the rate specified in 28 U.S.C. § 1961. Interest payments under this Paragraph shall 1

be in addition to any stipulated penalty due in accordance with this Decree. 2

8. Defendant s shall pay the civil penalty due by FedWire Electronic Funds Transfer 3

(EFT) to the U.S. Department of Justice in accordance with written instructions to be provided to 4

Def endant s , following lodging of this Decree . Defendants shall pay the civil penalty to the 5

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

, 6

700 Stewart Street, Suite 5220, Seattle, WA 98101

- 1271, (206) 553

- 1866 . At the time of 7

payment, Defendant s shall send a copy of the EFT authorization form and the EFT transaction 8

record, together with a transmittal letter, to the United Stat es in accordance with Section X V of 9

this Decree (Notices); by email to acctsreceivable.CINWD@epa.gov ; and by mail to: 10

U.S. EPA Cincinnati Finance Office 11

26 Martin Luther King Drive 12

Cincinnati, Ohio 45268 13

The transmittal letter shall state that the payment is for the civil penalty owed pursuant to the 14

Decree in United States v. American Seafoods Company LLC , et al. , and shall reference the civil 15

action number assigned to this case and DOJ case number 90

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- 10161 16

9. Defendant s shall not deduct any penalties paid under this Decree pursuant to this 17

Section or Sectio n VI I I (Stipulated Penalties) in calculating its federal income tax. 18

V. EFFECT I VE RETIREMENT OF CO NSUMPTION ALLOWANCES 19

10. As partial consideration for this settlement, i n December of 2011, Defendant s 20

purchased calendar year 2011 consumption allowances for 70,000 kilograms of the refrigerant 21

known as R

- 22. By their signatures to this Decree, Defendant s certify that they did not use or 22

sell those allowances, thereby ensuring that they would not be purc hased or used by any other 23

party, nor used by any person to produce or import an equivalent quantity of R

- 22 or any other 24

refrigerant into the United States. 25- 7

- V I

. COMPLIANCE REQUIREMENTS 1

11. Defendants shall not operate t he Highland Light with an ODS main ref rigeration 2

system. Defendants shall remove all of the refrigeration appliances from the Highland Ligh t ’s 3

main refrigeration system (including the plate freezers, compressors, and cargo hold coils) by 4

December 31, 2016

. If Defendants do not remove all of the refrigeration appliances from the 5

Highland Ligh t ’s main refrigeration system (including the plate freezers, compressors, and cargo 6

hold coils) by December 31, 2016, they shall pay a stipulated penalty of $133,000

. 7

12. Def

endants shall convert the main refrigeration systems of the following vessels 8

to operate using a Non

- ODS Refrigerant by December 31, 2015: the Northern Jaeger , the Ocean 9

Rover , the American Triumph , the American Dynasty , and the Katie Ann

. If Defendants d o not 10

convert all five of the se vessels to operate using a non

- ODS refrigeration by December 31, 2015, 11

Defendants shall pay a stipulated penalty of $100,000. If Defendants have not

, by December 31, 12

2016, converted the main refrigeration systems of each ve ssel to operate using a Non

- ODS 13

Refrigerant, they shall pay a civil penalty of $133,000 for each such vessel that remains 14

unconverted on that date. 15

13. Defendants shall be relieved of the obligation to convert the main refrigeration 16

system for any vessel ident ified in Paragraph 12 by December 31, 2016, if they convey 17

ownership of th at vessel to a Non

- Affiliated Third Party prior to December 31, 2016, except that 18

Defendants may convey no more than three such unconverted vessels , and they shall pay the 19

$133,000 civil penalty set forth in Paragraph 12 for each unconverted vessel conveyed

. 20

14. In addition to the stipul ated penalties provided for in P aragraph 12 , Defendants 21

shall pay a stip ulated penalty of $5,000 for each day after December 31, 2016, that any vessel 22

re quired to be converted to a non

- ODS refrigeration system pursuant to this Consent Decree , and 23

not conveyed to a Non

- Affiliated Third Party, remains unconverted

. 24

15. Defendant s shall fully implement the comprehensive refrigerant Leak Inspection 25

and Repair Plan ( Appendix 1 to this Consent Decree ) by February 28, 2013

. The comprehensive 26- 8

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refrigerant Leak Inspection and Repair Plan shall apply to each of the following vessels: the 1

Northern Jaeger , the Ocean Rover , the American Triumph , the American Dynasty , and the Katie 2

Ann

. Defendant s shall repair all leaks of R

- 22 identified during its inspection of each of the main 3

refrigeration systems aboard these vessels and shall perform initial and follow

- up verification 4

tests in accordance with all requirements f or repairs and initial and follow up verification tests 5

established in 40 C.F.R. Part 82, Subpart F

. Defendant s shall provide EPA with notice of its 6

anticipated schedule for performance of the activities specified in Appendix 1 within 10 D ays of 7

the E ffec tive D ate of this Consent Decree

. Defendants shall additionally provide via electronic 8

mail to EPA at least 48 hours prior notice of its intention to perform each of the activities 9

specified in Appendix 1 so that EPA may observe such activities. 10

16. Defendants shall comply with all applicable requirements of Section 608 of the Clean Air 11

Act, 42 U.S.C. 7671g(c), and its implementing regulations at 40 C.F.R. Part 82, Subparts A and F. 12

17. Where any compliance obligation set forth in the applicable regulations or in this 13

Consent Decree requires Defendants to obtain any federal, state, or local permit, Defendants 14

shall timely submit and complete the appropriate permit applications. 15

V I I. REPORTING REQUIREMENTS 16

18. Defendant s shall , no later than 14 Days after completing the conversion of any of 17

the main refrigeration system of any of the Facilities subject to the requirements of this Consent 18

Decree , submit written notification of the conversion to EPA in accordance with Section XV. 19

19. Defendant s shall , in accordance with Section XV, provide written notice to EPA 20

of their intent to sell any of the Facilities subject to the requirements of this Consent Decree at 21

least 30 Day s prior to the sale of any such Facilit y

. 22

20. Defendant s shall submi t a written report addressing the findings of the Leak 23

Inspection and Repair of each of the vessels subject to the requirement s of Paragraph 1 5

. The 24

written report for each vessel shall be submitted to EPA no later than 60 Days following the 25

completion of the actions required pursuant to Attachment 1 at each vessel and shall specify: 26- 9

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(1) all of the leaks that were detected on the vessel’s main refrigeration system , the date of the 1

leak’s detection, and the location of the leak ; (2) a description of how ea ch detected leak was 2

repaired and the date of the repair ; and (3) the dates and results of the initial and all follow

- up 3

leak repair verification testing. 4

21. No later than January 30 of the years 2013 and 2014

, Defendant s shall submit to 5

EPA copies of all records required pursuant to 40 C.F.R. § 82.166(k) for each of the Facilities for 6

the previous year. This requirement shall cease to apply to a Facility after the conversion of its 7

main refrigeration system to a Non

- ODS refrigerant. 8

22. If Defendant s violate, or ha ve reason to believe they may violate, any requirement 9

of this Decree, Defendant s shall notify EPA of such violation and its likely duration, in writing, 10

within ten (10) working Days of the Day they first become awa re of the violation, with an 11

explanation of the violations’ likely cause and of the remedial steps taken, or to be taken, to 12

prevent or minimize such violation. If the cause of a violation cannot be fully explained at the 13

time the report is due, Defendant s shall so state in the report. Defendant s shall investigate the 14

cause of the violation and shall then submit an amendment to the report, including a full 15

explanation of the cause of the violation, within 30 Days of the Day Defendant s become aware 16

of the cause of the violation. Nothing in this Paragraph or the following Paragraph relieves 17

Defendant s of their obligation to provide the notice required by Section I X of this Decree (Force 18

Majeure). 19

23. Whenever any violation of this Decree or any other event affe cting Defendants ’ 20

performance under this Decree may pose an immediate threat to the public health or welfare or 21

the environment, Defendant s shall notify EPA orally or by electronic transmission as soon as 22

possible, but no later than 24 hours after Defendan t s first knew of the violation or event. This 23

procedure is in addition to the requirements set forth in the preceding Paragraphs. 24

24. All reports shall be submitted to the person(s) designated in Section X V of this 25

Decree (Notices). 26- 10

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25. Each report and written no tification submitted by Defendant s under this Section 1

shall be signed by an official of the submitting party and include the following certification: 2

“ I certify under penalty of law that this document and all 3

attachments were prepared under my direction or supervision in 4

accordance with a system designed to assure that qualified personnel 5

properly gather and evaluate the information submitted. Based on my 6

inquiry of the person or persons who manage the system, or those persons 7

directly responsible for ga thering the information, the information 8

submitted is, to the best of my knowledge and belief, true, accurate, and 9

complete. I am aware that there are significant penalties for submitting 10

false information, including the possibility of fine and imprisonme nt for 11

knowing violations. ” 12

This certification requirement does not apply to emergency or similar notifications where 13

compliance would be impractical. 14

26. The reporting requirements of this Decree do not relieve Defendant s of any 15

recordkeeping or reporting obl igations required by the CAA or its implementing regulations, or 16

by any other federal, state, or local law, regulation, permit, or other requirement. 17

27. Any information provided pursuant to this Decree may be used by the United 18

States in any proceeding to enforce the provisions of this Decree and as otherwise permitted by 19

law. 20

V I II. STIPULATED PENALTIES 21

28. Defendant s shall be liable for stipulated penalties to the United States for 22

violations of this Decree as specified below, unless excused under Section I X (Force Majeure). 23

A violation includes failing to perform any obligation required by the terms of this Decree, 24

including payment of civil penalties, compliance requirements, and submission of any required 25

reports or notifications according to all applicabl e require m ents of this Decree and within the 26

specified time schedules established by or approved under this Decree. 27- 11

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29. Late Payment of Civil Penalty : If Defendant s fail to pay the civil penalty required 1

to be paid under Section IV of this Decree (Civil Penal ty) when due, Defendant s shall pay a 2

stipulated penalty of $ 1 ,000 per Day for each Day that the payment is late. Late payment of the 3

civil penalty shall be made in accordance with Section IV. All transmittal correspondence shall 4

state that any such payme nt is for late payment of the civil penalty due under this Decree, or for 5

stipulated penalties for late payment, as applicable, and shall include the indentifying 6

infor mation set forth in Section IV. 7

30. The following stipulated penalties shall accrue per violation per Day for each 8

violation of any of the requirements specified in Paragraph 1 5 , including the requirements of 9

Appendix 1 which are incorporated by reference, and the Reporting requirements specified in 10

Section V I , and for any violation of Paragr aph 1 6 : 11

Penalty Per Violation Per Day Period of Noncompliance 12

$ 125 1st through 14 th Day 13

$ 250 15 th through 30 th Day 14

$750 30th Day and beyond 15

31. Stipulated penalties shall begin to accrue on the day after performance is due or on 16

the day of the violation, whichever is applicable, and shall continue to accrue until performance 17

is satisfactorily completed or the violation ceases . If Defendant s in good faith timely submit a 18

report required by Section V I I of this Decree and EPA determines that a com ponent of the report 19

is deficient, EPA will provide notice in writing of the deficiency and allow Defendant s at least 20

20 Days to correct the deficiency. In this circumstance, stipulated penalties will not begin to 21

accrue until the expiration of the 20

- Day period. However, if the original submitted report was 22

so deficient to constitute a material breach of Defendants’ obligations under this Consent Decree, 23

the stipulated penalty shall begin to accrue upon original submission and shall be payable 24

notwithsta nding any subsequent submission. 25

32. Defendant s shall pay any stipulated penalty within 30 Days of receiving the 26

United States’ written demand. 27- 12

-

33. The United States may in the unreviewable exercise of its discretion, reduce or 1

waive Stipulated Penalties otherwise due it under this Decree. 2

34. Stipulated penalties shall continue to accrue as provided in this Section during any 3

Dispute Resolution, with interest on accrued penalties payable and calculated by the rate 4

specified in 28 U.S.C. § 1961 , b ut need not be paid until the following: 5

a. If the dispute is resolved by agreement or by a decision of EPA that is not 6

appealed to the Court, Defendant s shall pay accrued penalties determined to be owing, 7

together with interest, to the United States within 30 Days of the E ffect ive D ate of the 8

agreement or the receipt of EPA ’s decision or order. 9

b. If the dispute is appealed to the Court and the United States prevails in 10

whole or in part, Defendant s shall pay all accrued penalties determined by the Court to be 11

owing, together with i nterest, within 60 Days of receiving the Court ’s decision or order, 12

except as provided in subparagraph c, below. 13

c. If any Party appeals the District Court ’s decision, Defendant s shall pay all 14

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

receiving the final appellate court decision. 16

35. Defendant s shall pay stipulated penalties owing to the United States in the manner 17

set forth and with the confirmation notices as provided in Section IV (Civil Penalt y ) , except that 18

the transm ittal letter shall state that the payment is for stipulated penalties and shall state for 19

which violation(s) the penalties are being paid. 20

36. Defendant s shall not deduct Stipulated Penalties paid under this Section in 21

calculating its federal income tax. 22

37. Failu re by the United States to demand stipulated penalties shall have no effect on 23

the accrual of such penalties. 24

38. Nothing herein shall preclude the simultaneous accrual of penalties for separate 25

violations of this Decree. 26- 13

-

39. If Defendant s fail to pay stipulated p enalties according to the terms of this Decree, 1

Defendant s shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961, 2

accruing as of the date payment became due. Nothing in this Paragraph shall be construed to 3

limit the United St ates from seeking any remedy otherwise provided by law for Defendant s ’ 4

failure to pay any stipulated penalties. 5

40. Subject to the provisions of Section X I II of this Decree (Effect of 6

Settlement/Reservation of Rights), the stipulated penalties provided for in this Decree shall be in 7

addition to any other rights, remedies, or sanctions available to the United States for Defendant s ’ 8

violation of this Decree or Title VI of the CAA, 42 U.S.C. § 7401 et. seq. and/or 40 C.F.R. Part 9

82, Subpart s A and F. Defendant s shall be allowed a credit for any stipulated penalties paid 10

against any statutory penalties imposed for such violation. 11

I X

. FORCE MAJEURE 12

41. A Force M ajeure event , for purposes of this Decree, is defined as any event 13

arising from causes beyond the control of Defendant s , of any entity controlled by Defendant s or 14

of Defendant s ’ contractors, that delays or prevents the performance of any obligation under this 15

Decree despite Defendant s ’ best efforts to fulfill the obligation. The requirement that 16

Defendant s ex ercise best efforts to fulfill the obligation includes using best efforts to anticipate 17

any potential force majeure event and best efforts to address the effects of any such event (a) as it 18

is occurring and (b) after it has occurred to prevent or minimize any resulting delay to the 19

greatest extent possible. Force Majeure event does not include Defendants ’ financial inability to 20

perform any obligation under this Decree. 21

42. If any event occurs or has occurred that may delay the performance of any 22

obligation und er this Decree, whether or not caused by a force majeure event, Defendant s shall 23

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

- 553

- 1200 , within 3 Days (72 consecutive 24

hours) of when Defendant s first knew that the event might cause a delay. Within 15 Days of the 25

date of Defendants ’ initial notice under this Paragraph, Defendant s shall provide in writing to the 26- 14

-

individuals identified in Paragraph 58 and to the Director of the Office of Compliance and 1

Enforcement at EPA Region 10 an explanation and desc ription of the reasons for the delay; the 2

anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the 3

delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay 4

or the effect of the delay; Defendant s ’ rationale for attributing such delay to a F orce M ajeure 5

event if it intends to assert such a claim; and a statement as to whether, in the opinion of 6

Defendant s , such event may cause or contribute to an endangerment to public health, welf are or 7

the environment. Defendant s shall i nclude with any notice all av ailable documentation 8

supporting the claim that the delay was attributable to a force majeure. Failure to comply with 9

the above requirements shall preclude Defendant s from asserting any claim of F orce M ajeure for 10

that event for the period of time of such failure to comply, and for any additional delay caused by 11

such failure. Defendant s shall be deemed to know of any circumstance of which Defendant s , or 12

any entity cont rolled by Defendant s , knew or should have known. 13

43. EPA shall make reasonable efforts to notify Defendant s within thirty (30) Days in 14

writing of its agreement or disagreement with Defendants ’ claim of Force Majeure after receipt 15

of the written notice provided by Defendant s under Paragraph 4 2

. If EPA agrees that the delay 16

or anticipated delay is attributable to a F orce M ajeure event, the time for performance of the 17

obligations under this Decree that are affected by the Force Majeure event may be extended by 18

EP A for such time as is necessary to complete those obligations. An extension of the time for 19

performance of the obligations affected by the F orce M ajeure event shall not, of itself, extend the 20

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

. EPA will notify 21

Defendant s in writing of the length of the extension, if any, for performance of the obligations 22

affected by the F orce M ajeure event. 23

44. If EPA does not agree that the delay or anticipated delay has been or will be 24

caused by a Force Majeure event , EPA’s position shall be binding, unless Defendant s invoke 25

Dispute Resolution under Section X of t his Decree within fifteen days after receipt of EPA’s 26

written notice . In any such dispute, Defendant s bear the burden of proving, by a preponderance 27- 15

-

of the evidence, that the delay or anticipated delay has been or will be caused by a Force Majeure 1

event; that Defendant s gave the notice required in this Section; that the duration of the delay or 2

the extension sought was or will be warrante d under the circumstances; and that Defendant s 3

exercised best efforts to prevent or minimize any delay caused by the Force Majeure event. 4

X. DISPUTE RESOLUTION 5

45. Unless otherwise expressly provided for in this Decree, the dispute resolution 6

procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or 7

with respect to this Decree. Defendant s ’ failure to seek resolution of a dispute under this Section 8

shall preclude Defendant s from raising any such issue as a defense to an action by the United 9

States to enforce any obligation of Defen dant s arising under this Decree. 10

46. Any dispute subject to Dispute Resolution under this Decree shall be the subject 11

of informal negotiations. The dispute shall be considered to have arisen when Defendant s send 12

the United States a written n otice of d ispute in accordance with Section XV of this Decree 13

(Notices) . Such n otice of d ispute shall state clearly the matter and the reason for the dispute. 14

The period of informal negotia t ions shall not exce ed 6 0 Days from the date the dispute arises, 15

unless that period is modified by written agreement. If the Parties cannot resolve a dispute by 16

informal negotiations, then the position advanced by the United States shall be considered 17

binding unless within 1 5 Days Defendant s appeal the dispute to the District Court. 18

X I

. INFORMATION COLLECTION AND RETENTION 19

47. The United States and its representatives, including attorneys, contractors, and 20

consultants, shall have the right of entry into any F acility covered by t his Decree, at all 21

reasonable times, upon presentation of credentials, to: 22

a. M onitor the progress of activities required under this Decree; 23

b. V erify any data or information submitted to the United States in accordance with 24

the terms of this Decree; 25

c. O btain docu mentary evidence, including photographs and similar data; and 26

d. A ssess Defendants ’ compliance with this Decree. 27- 16

-

For the purpose of this Decree, the phrase “all reasonable times” shall mean between the 1

hours of 8:00 AM and 5:00 PM, Monday through Friday, excluding holidays. 2

48. Until the termination of this Decree, Defendant s shall retain, and shall instruct its 3

contractors and agents to preserve, all non

- identical copies of all documents, records, or other 4

information (including documents, records, or other information in electronic form) in its or its 5

contractors ’, or agents ’ possession or control, or that come into its or its contractors ’ or agents ’ 6

possession or control, and that relate in any manner to Defendants ’ performance of its 7

obligations under this Decree. This information

- retention requirement shall apply regardle ss of 8

any contrary corporate or institutional policies or procedures. At any time during this 9

information

- retention period, upon request by the United States, Defendant s shall provide copies 10

of any documents, records, or other information required to be m aintained under this Paragraph

, 11

subject to Defendants ’ right to assert a privilege as set forth in Paragraph 49

. 12

49. At the conclusion of the document

- retention period provided in the preceding 13

Paragraph, Defendant s shall notify the United States at least 90 D ays prior to the destruction of 14

any records or documents subject to the requirements of the preceding Paragraph, and, upon 15

request by the United States, Defendant s shall deliver any such records or documents to EPA. 16

Defendant s may assert that certain docu ments, records, or other information are privileged under 17

the attorney

- client privilege or any other privilege recognized by Washington state or federal 18

law. If Defendant s assert such a privilege, it shall provide the following: (1) the title of the 19

docu ment, record, or information; (2) the date of the document, record, or information; (3) the 20

name and title of each author of the document, record, or information; (4) the name and title of 21

each addressee and recipient; (5) a description of the subject of the document, record, or 22

information; and (6) the privilege asserted by Defendant s . However, no document, records, data, 23

or other information created or generated as required by this Decree shall be wit hheld on grounds 24

of privilege. 25- 17

-

50. This Decree in no way limits or affects any right of entry and inspection, or any 1

right to obtain information, held by the United State s pursuant to applicable federal or state laws, 2

regulations

, or permits. 3

X I I. FAILURE OF COMPLIANCE 4

51. Notwithstanding the United States’ review and approval of any documents 5

submitted to it by Defendant s pursuant to this Decree, Defendant s shall remain solely responsible 6

for compliance with the terms of the CAA, its implementing regulations, and this Decree. 7

X I II. EFFECT OF SETTLEMENT/RESERVATIO N OF RIGHTS 8

52. This Decree resolves , and the United States covenants not to sue Defendants for, 9

the civil claims of the United States for the violations alleged in the Complaint in this action 10

through the date of lodging of this Consent Decree. This Consent Decree’s resolution of the 11

United States’ claim s , and the United States’ correspond ing covenant not to sue, are conditioned 12

upon Defendants’ satisfactory compliance with the requirements of this Consent Decree. 13

53. The United State s reserves al l legal and equitable remedies available to enforce 14

the provisions of this Decree. This Decree shall not be construed to limit the rights of the United 15

States to obtain penalties or injunctive relief under the CAA or its implementing regulations, or 16

under other federal laws, regulations, or permit conditions, except as expressly specified in 17

Paragraph 5 2

. The United States further reserves all legal and equitable remedies to address any 18

imminent and substantial endangerment to the public health or welfare or the environment 19

arising at, or posed by, Defendan t s ’ Facilities , whether related to the violations addressed in this 20

Decree or otherwise. 21

54. This Decree is not a permit, or a modification of any permit, under any federal, 22

s tate , or local laws or regulatio ns. Defendant s are responsible for achieving and maintaining 23

complete compliance with all applicable federal, s tate , and local laws, regulations, and permits; 24

and Defendants ’ compliance with this Decree shall be no defense to any action commenced 25

pursuant to any such laws, regulations, or permits, except as set forth herein. The United States 26- 18

-

does not, by its consent to the entry of this Decree, warrant or aver in any manner that 1

Defendant s ’ compliance with any aspect of this Decree will result in complia nce with provisions 2

of the CAA

, including 42 U.S.C. § 7671g and the implementing regulations at 40 C.F.R. Part 82, 3

Subpart s A and F or with any other provisions of federal, s tate , or local laws, regulations, or 4

permits. 5

55. This Decree does not limit or affect the rights of Defendant s or of the United 6

States against any third parties not party to this Decree, nor does it limit or otherwise affect the 7

rights of third parties not party to this Decree, against Defendant s , except as otherwise provided 8

by law. 9

56. This Decree shall not be construed to create rights in, or grant any cause of action 10

to, any third party not party to this Decree. 11

XI V

. COSTS 12

57. Each Party shall bear its own costs associated with this action, including 13

attorneys’ fees, except that the United Sta tes shall be entitled to collect the costs (including 14

attorneys’ fees) incurred in any action necessary to collect any portion of the civil penalty or any 15

stipulated penalties due but not paid by Defendants brought in accordance with Sections IV 16

(Civil Pen alty) and VI I I (Stipulated Penalties) herein. 17

XV. NOTICES 18

58. Unless otherwise specified herein, whenever notifications, submissions, or 19

communications are required by this Decree, they shall be made in writing and addressed as 20

follows: 21
22 To the United States : 23 24 Chief, Environmental Enforcement Section 25 Environment and Natural Resources Division 26 U.S. Department of Justice

Ben Franklin Station 27 Box 7611

Washington, DC 20044

- 7611 28

Shirin Venus 29- 19

-

U.S. Environmental Protection Agency, Region 10 Office of Regional Cou nsel 1 1200 Sixth Ave, Suite 900

Mail Stop ORC

- 158 2 Seattle, WA 98101 3

Kat ie McClintock

U.S. Environmental Protection Agency, Region 10 4 Office of Compliance and Enforcement

1200 Sixth Ave, Suite 900 5 Mail Stop OCE

- 127

Seattle, WA 98101 6 McClintock.Kati e@epa.gov 7

To Defendant s : 8 9 Matthew D. Latimer 10 2025 First Avenue 11 Suite 900 12 Seattle, Washington 98121 13 matthew.latimer@americanseafoods.com 14 15 Thomas B. Johnston 16 McKenna Long & Aldridge LLP 17 1900 K Street, N.W. 18 Washington, DC 20006 19 tjohnston@mckennalong.com 20

59. Any Party may, by written notice to the other Parties, change its designated notice 21

recipient or notice address provided above. 22

60. Notice s submitted pu rsuant to this Section shall be deemed submitted upon 23

mailing, unless otherwise provided in this Decree or by mutual agreement of the Parties in 24

writing. 25

XV I . EFFECTIVE DATE 26

61. The Effective Date of this Decree shall be the date upon which this Decree is 27

ente red by the Court or a motion to enter this Decree is granted, whichever occurs first, as 28

recorded on the Court’s docket. 29

XV I I. RETENTION OF JURISDICTION 30

62. The Court shall retain jurisdiction over this case until termination of this Decree, 31

for the purpose of enabling any of the Parties to apply to the Court for such further order, 32- 20

-

direction, or relief as may be necessary or appropriate for the construction o r modification of this 1

Decree, or to effectuate or enforce compliance with its terms, or to resolve disputes in 2

accordance with Section X of this Decree (Dispute Resolution). 3

XVIII. MODIFICATION 4

63. The terms of this Decree may be modified only by a subsequent written 5

agreement signed by all of the parties. Where the modification constitutes a material change to 6

this Decree, it shall be effective only upon approval by the Court. 7

64. Any disputes concerning modification of this Decree shall be resolved pursuant to 8

Section X of this Decree (Dispute Resolution), provided, however, that, instead of the burden of 9

proof provided by Section X, the Party seeking the modification in any such dispute bears the 10

burden of demonstrating that it is entitled to the requested modi fication in accordance with 11

Federal Rule of Civil Procedure 60(b). 12

X IX . TERMINATION 13

65. After Defendant s ha ve satisfactorily complied with all requirements of this 14

Decree, including reporting requirements required under Section V I I and has paid the civil 15

penalty and any accrued Stipulated Penalties as required by this Decree, Defendant s may serve 16

upon the United States a R equest for T ermination, stating that Defendant s ha ve satisfied those 17

requirements, together with all necessary supporting documentation. 18

66. Following receipt by the United States of Defendant s ’ Request for Termination, 19

the Parties shall confer informally concerning the Request and any disagreement that the Parties 20

may have as to whether Defendant s ha ve satisfactorily complied with the require ments for 21

termination of this Decree. If the United States agrees that the Decree may be terminated, the 22

Parties shall submit, for the Court ’ s approval, a joint stipulation terminating the Decree. The 23

United States shall not unreasonably withhold its agr eement to terminate this Decree. 24

67. If the United States does not agree that the Decree may be terminated, Defendant s 25

may invoke Dispute Resolution under Section X of this Decree. However, Defendant s shall not 26- 21

-

seek Dispute Resolution of any dispute regarding termination until 60 Day s after service of its 1

Request for Termination. 2

XX. PUBLIC PARTICIPATION 3

68. This Decree shall be lodged with the Court for a period of not less than 30 Days 4

for public notice and comment in accordance with 28 C.F.R. § 50.7. The Unite d States reserves 5

the right to withdraw or withhold its consent if the comments regarding th is Decree disclose facts 6

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

. 7

Defendant s consent to entry of this Decree witho ut further notice and agree not to withdraw from 8

or oppose entry of this Decree by the Court or to challenge any provision of th is Decree, unless 9

the United States has notified Defendant s in writing that it no longer supports entry of th is 10

Decree. 11

XX I

. SIGNATORIES/SERVICE 12

69. Each undersigned representative of Defendant s , and the Assistant Attorney 13

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

, 14

certifies that he or she is fully authorized to enter into the terms and c onditions of this Decree 15

and to execute and legally bind the Party he or she represents to this document. 16

70. This Decree may be signed in counterparts, and its validity shall not be challenged 17

on that basis. Defendant s agree to accept service of process by m ail with respect to all matters 18

arising under or relating to this Decree and to waive the formal service requirements set forth in 19

Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of this 20

Court including, but not limited to, service of a summons. 21

XX I I. INTEGRATION 22

71. This Decree and attachments constitute the final, complete, and exclusive 23

agreement and understanding among the Parties with respect to the settlement embodied in the 24

Decree and supersedes all prior agreements and understandings, whether oral or written, 25

concerning the settle ment embodied herein. Other than deliverables that are subsequently 26- 22

-

submitted and approved pursuant to this Decree, no other document, nor any representation, 1

inducement, agreement, unders tanding, or promise, constitutes any part of this Decree or the 2

settlement it represents, nor shall it be used in construing the terms of this Decree. 3

XXI I I. FINAL JUDGMENT 4

72. Upon approval and entry of this Decree by the Court, this Decree shall constitute 5

a final judgment of the Court as to the United States and Defendant s

. 6

7

Dated and entered this ____ day of __________, 2012

. 8

9

10

___________________________________ 11

UNITED STATES DIST RICT JUDGE 12 Western District of Washington 13

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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

- 23

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Pate: S ~ ! 1 ~ } ~- %G~ .~~ ~: ~ AFL, i L. STERN Regional Counsel

U.S. Environmental Protection Agency Office of Regional Counsel Region 10
1200 Sixth Avenue Seattle, Washington 98101

I!, Date: '~ I `b { ~~' t`~~,. -~. ~~- ~vu.,~. --~-w

SHIRiN VENL7S Assistant Regional Counsel

U.S. ~nviranmental Protection Agency Region 10
1200 Sixth Ave. Seattle, OVA 98101

-24-1 APPENDIX 1:

COMPREHENSIVE INSPECTION, LEAK DETECTION AND REPAIR PLAN

1. Affected Vessels : The following vessels are subject to the requirements of this Comprehensive Inspection, Leak Detection and Repair Plan (CILDRP) , unless a vessel’s main refrigeration system has been converted to use a Non

- ODS refrigerant prior to the deadline for the implementation of this plan : Northern Jaeger, American Dynasty, American Triumph, Ocean Rover, and Katie Ann.

2. Certified Technicians: Defendant American Seafoods Company LLC (American Seafoods) shall employ only appropriately certified technicians to perform the inspection

, evacuation , repair or follow

- up leak repair verification work required under this CILDRP when the regulations at 40 C

. F

. R

. Part 82 would require certification to perform such
activities.

3. Required Inspections: American Seafoods will conduct a comprehensive leak inspection for R

- 22 refrigerant leaks from the main refrigeration systems (including the associated piping and equi pment) aboard each of the Affected Vessels.

4. Prior Notice to EPA: American Seafoods will provide EPA Region 10 (EPA) with prior written notice of the exact date of the comprehensive leak inspections at least 48 hours before the inspection will begin in or der to afford EPA an opportunity to observe the inspection.

Notice to EPA regarding performance under this Comprehensive Inspection, Leak Detection and Repair Plan sha ll be provided by American Seafoods via email to : Katie McClintock, EPA Region 10 Comp liance Officer, mcclintock.katie@epa.gov

.

5. Inspection Technique: Inspectors acting on behalf of American Seafoods will use either halide torch detectors or electronic refrigerant leak detection devices to check for the presence of R

- 22 in throughout the areas of each Affected Vessel where there are components of the m ain refrigeration systems. During the inspections, operators will maintain normal operating pressure of R

- 22 in the main refrigeration plan being inspected for leaks. Whenever a leak is detected, inspectors will label the leak for repair. Inspectors wil l also record the detection and location of the leak in the vessel log book. At the completion of the leak inspection process, the vessel operators will pull R

- 22 out of the plate freezers and cargo holds to store in the vessel’s low pressure receiver, in accordance with American Seafoods’ standard procedures during lay

- up periods.2

6. Repairs: If an R

- 22 leak is detected during the halid e torch/ electronic detector inspections described in Paragraph 5 , American Seafoods will repair the leak in
accordance wi th the repair deadlines provided under 40 C.F.R. Part 82

. 156. The repair process will involve isolation of the leaking component and evacuation of the R

- 22 to the levels specified in 40 C

. F

. R

. Part 82 regulations, then repair or replacement of the leaking
component.

7. Leak Repair Verification Procedures: When leaks are found during a Required Inspection and repaired in accordance with Paragraph 6

, American Seafoods will charge the previously le aking component with nitrogen gas at 142 psi (10 bar). Th is exceeds

norm al operating pressure. American Seafoods will conduct follow

- up leak repair verification testing. The default method for the follow

- up leak repair verification test shall be soaping the previously leaking component and watching for bubbles, and if no leaks are detected by that method, by listeni ng for audible leaks. American Seafoods reserves the right to use an alternative verification testing method that meets sound professional judgment, including other methods listed in the 1995 EPA/CMA “Compliance Guidance for Industrial Process Refrigerati on Leak Repair Regulations Under Section 608 of the Clean Air Act,” at page E

- 3.

American Seafoods will normally have a different certified technician conduct a second
leak

- repair verification test to confirm that the leak has been fully repaired. American Seafoods anticipates that this test will be conducted immediately following the initial leak repair verification test. If the second leak

- repair verification test confirms syst em integrity, American Seafoods will vacuum the system to remove nitrogen and humidity.

When the repaired portion of a refrigeration system is recharged with R

- 22 for the following fishing season, once the system reaches normal operational pressure, Ameri can Seafoods will conduct a third follow

- up verification test using a halide torch or electronic leak detector. This verification may be done while the vessel is underway.

8. Reporting: Whether or not EPA is present to observe the leak inspections and leak

repair verification testing required by this CILDRP, American Seafoods shall submit to EPA a report on the leak inspection and repair activities for each Affected Vessel. Each report shall include: (1) a list of each leak detected, including its location and the date
detected , (2) a description of how each detected leak was repaired and the date it was repaired , and (3) descriptions of the dates, types, and results of the initial and all follow

up repair verification testing. The Report shall be submitte d to EPA no later than 60 days after the vessel returns to fishing. If, for any reason, an Affected Vessel does not return
to fi shing within 120 days after the initial leak

- repair verification test takes place or should have taken place pursuant to this C ILDRP, then American Seafoods will submit a3

report to EPA that provides the information described in the paragraph as well as an explanation of why the vessel has not returned to normal operating conditions allowing completion of the third follow

- up verifi cation test.