Puget Soundkeeper Alliance v. Seattle Iron & Metals Corp.

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 PUGET SOUNDKEEPER ALLIANCE, 8 Plaintiff, Case No. C12-1201-RSM 9 10 v. ORDER GRANTING IN PART PLAINTIFF’S MOTION TO 11 SEATTLE IRON & METALS CORP., ENFORCE AND MODIFY CONSENT DECREE 12 Defendant. 13 14 I. INTRODUCTION 15 16 This matter comes before the Court on Plaintiff Puget Soundkeeper Alliance 17 (“Soundkeeper”)’s Motion to Enforce and Modify Consent Decree, Dkt. #102. For the following 18 reasons, the Court GRANTS IN PART Soundkeeper’s Motion. 19 II. BACKGROUND 20 21 In this case, Soundkeeper alleged that Defendant Seattle Iron & Metals Corporation 22 (“SIMC”) violated various provisions of Clean Water Act (“CWA”) permits that authorized 23 stormwater and industrial wastewater discharges from SIMC’s facilities in Seattle’s Georgetown 24 neighborhood used for vehicle and scrap metal recycling and storage. Dkt. #38. Relevant here, 25 Soundkeeper alleged that SIMC’s scrap handling activities emit dust and harmful particles into 26 27 the air that contaminate the neighborhood and Duwamish River in violation of the CWA and 28 Resource Conservation and Recovery Act. Id. at 55, 104-08, 134 The parties settled the case via a Consent Decree, which the Court entered on March 3, 1 2 2019. Dkts. #82, #84. Due to needing additional time for necessary “major modification of the 3 design for the auto shredder enclosure to make it more effective[,]” the parties proposed an 4 Amended Consent Decree on September 10, 2020, which this Court entered on October 30, 2020. 5 Dkts. #85 at 2, #88. 6 The Consent Decree contains a force majeure clause allowing delays “outside the 7 8 reasonable control of SIMC,” including those caused by the actions or inactions of third parties. 9 Dkt. #84 at 11-12. “In such event, the time for performance of the task will be extended for a 10 reasonable period of time following the force majeure event.” Id. at 12. Any force majeure event 11 must be disclosed “as soon as reasonably possible but, in any case, no later than fifteen days after 12 13 the occurrence of the event.” Id. at 11. 14 SIMC agreed to build, as mentioned above, an “auto shredder enclosure.” This enclosure 15 was part of a required “deduster” under the Amended Consent Decree, which would work to 16 contain SIMC’s dust emissions. Dkt. #88 at 2. Rather than a particular deadline, SIMC agreed 17 to “exercise its best efforts to obtain all necessary permits” for the deduster. Id. Once permits 18 19 were obtained, SIMC had to install and commence operation of the deduster within 63 weeks or 20 pay $1,000 per day for delays. Id. at 3. 21 Prior to the installation of the deduster, the Amended Consent Decree required dust 22 emission testing conducted in phases. Id. at 5. 23 Phase I, conducted for 10 weeks between May and August of 2019, measured 24 25 “background” dust monitoring at several monitoring sites chosen by Dr. Ranajit Sahu, the parties’ 26 joint consultant. Id. The study was designed to measure “particulate concentrations upwind 27 (South to Southwest)” of SIMC (Dkt. #111, Ex. F. at 1 ) as “to collect samples at locations that 28 were not impacted by SIM[C]’s operations.” Id., Ex. A at 4. 1 2 Phase II, which began June of 2020, required SIMC to continuously monitor dust for one 3 year at two of the same locations as Phase I and at “three additional locations selected by Dr. 4 Sahu on the north, south and east fence lines” of SIMC’s facility. Id. at 6. The purpose of this 5 phase was “intended to document SIMC’s dust emissions prior to installation” of the deduster. 6 Dkt. #88 at 6. 7 8 Lastly, Phase III would not occur until after installation of the deduster. Id. at 6. This 9 would involve two years of continuous monitoring at the same locations as Phase II “to document 10 SIMC’s dust emissions following installation[.]” Id. at 6-7. Under a “corrective action” 11 provision, if Phase III monitoring from “the first dry season” does not show effective dust 12 13 emission reductions to (1) 10 µg/m3, or (2) “the background level determined by Dr. Sahu based 14 on additional data collection,” and show that polychlorinated biphenyl (“PCB”) levels are 15 reduced to the background PCB levels from Phase I, then further enhancements would apply. Id. 16 at 8. This would include more inspections and recommendations by Dr. Sahu. Id. 17 The original Consent Decree also contains a “dispute resolution” clause, which provides: 18 19 In the event of a dispute regarding implementation of, or compliance with, this decree, the parties must first attempt to resolve the dispute by meeting to discuss 20 the dispute and any suggested measures for resolving the dispute. Such a meeting should be held as soon as practical but must be held within thirty (30) days after 21 notice of a request for such a meeting to the other party and its counsel of record. 22 If no resolution is reached at that meeting or within thirty (30) days of the notice, whichever occurs first, either party may file a motion with this court to resolve the 23 dispute.

24 Dkt. #84 at 12. 25 Original deduster design drawing and a City of Seattle permit application were completed 26 27 and approved by Dr. Sahu when the parties proposed the Amended Consent Decree on September 28 10, 2020. After Phase II of the above study, however, SIMC invoked the force majeure clause on March 31, 2023. Dkts. #102 at 6, #108 at 3. In an email to Soundkeeper that day, SIMC 1 2 stated that, while awaiting permits in 2022, the original company contracted to build the deduster, 3 Metso, was acquired by another company. Dkt. #111 at Ex. B. This email notified Soundkeeper 4 that the acquiring company “ha[d] recently indicated to SIMC that it does not intend to honor the 5 September 19, 2019 cont[r]act between Metso and SIMC.” Id. SIMC said they were in 6 “ongoing” negotiations and “evaluating its options[.]” Id. SIMC later retained a different 7 8 company, Wendt, and new designs were underway by the summer of 2023. Dkt. #108 at 3. 9 SIMC provided a “far enough along” design to Soundkeeper in March 2024. Id. at 4. 10 However, while the original deduster estimate was under $1 million, the new design 11 estimate was “at nearly $4M for the equipment alone.” Id. Due to this cost increase, SIMC had 12 13 its environmental consultants “scrutinize” the design “to ensure that it would enable SIMC to 14 achieve the 10 µg/m3 action level prescribed” by the Consent Decree. Id. SIMC alerted 15 Soundkeeper of this on June 21, 2024. Dkt. #102 at 6. 16 On April 2, 2025, SIMC stated that it was continuing work on the deduster design and 17 wanted to discuss “some issues with the Phase II study results” with Dr. Sahu. Id. at 7, #108 at 18 19 7. On April 28, 2025, SIMC requested data from Dr. Sahu, which was provided on August 1 20 directly from the consultant who worked on the study. Id. On August 6, 2025, opining “that 21 SIMC was stalling,” Soundkeeper notified SIMC that it was violating the Amended Consent 22 Decree “for not using its best efforts to obtain the deduster permits” and invoked the Decree’s 23 dispute resolution process. Id. The parties, including SIMC’s environmental consultant and Dr. 24 25 Sahu, had the requested meeting on September 25, 2025, via Zoom. Id. 26 During this September 25 meeting, SIMC’s consultant presented a slideshow with 27 criticisms of the Phase I and Phase II testing. First, SIMC alleged that Dr. Sahu did not exclude 28 data from wildfires during Phase II, which caused SIMC’s data to incorrectly “reflect[] the 1 2 impacts of one of the largest plumes of wildfire smoke to settle over Seattle in recent memory.” 3 Dkt. #108 at 5. As a result, SIMC claimed that its “dry season” average during that time was 4 “well below [the] 10 µg/m3 action level[.]” Id. at 6. Because of this, SIMC asked the consultant 5 to review Phase I. Id. From this, SIMC alleged that Dr. Sahu’s upwind testing locations for 6 Phase I were incorrect due to him selecting locations that “are actually downwind or crosswind 7 8 of SIMC[.]” Id. at 7. 9 The fallout from this meeting lands us here. Filing the instant Motion on November 17, 10 2025, Soundkeeper requests that the Court find SIMC in civil contempt and impose sanctions for 11 violating the Consent Decree by failing to exercise “best efforts” to obtain permits and install the 12 13 required deduster. Dkt. #102. Soundkeeper also requests that the Court award costs and extend 14 the Consent Decree (which expires March 15, 2026) to “90 days after full implementation and 15 completion of all requirements herein.” Id. at 16. SIMC contends that, because its dust emissions 16 were supposedly lower than the “action level,” it is not obligated to build the deduster. Dkt. 17 #108. Soundkeeper argues that the deduster is not contingent on the Phase I or Phase II results 18 19 and that the actions levels only pertain to if any further steps are required after Phase III. Dkt. 20 #112. 21 III. DISCUSSION 22 A. Consent Decree Violation 23 Clean Water Act consent decrees are judgments which may be enforced by judicial 24 25 sanctions in a civil contempt proceeding. Las Vegas v. Clark Cty., 755 F.2d 697, 701 (9th Cir. 26 1984); see also Nehmer v. U.S. Dept. of Veterans Affairs, 494 F.3d 846, 860 (9th Cir. 2007) (“It 27 is well established that the district court has the inherent authority to enforce compliance with a 28 consent decree that it has entered in an order, to hold parties in contempt for violating the terms 1 2 therein.”). For civil contempt, the moving party must demonstrate by clear and convincing 3 evidence that (1) the alleged violating party violated a court order, (2) the noncompliance was 4 more than technical or de minimis, and (3) the alleged violating party’s conduct was not the 5 product of a good faith or reasonable interpretation of the violated order. United States v. Bright, 6 596 F.3d 683, 694 (9th Cir. 2010). 7 8 The Court finds that SIMC has failed to comply with the Consent Decree. While SIMC 9 invoked force majeure when Metso was acquired, SIMC did not notify Soundkeeper until March 10 31, 2023, while Metso’s sale occurred “[i]n 2022,” any initial notice that the contract might be 11 cancelled occurred “[i]n the summer of 2022,” and Metso’s acquirer “formally notif[ied] SIMC 12 13 that it would not honor the contract in late October 2022” after “a series of meetings[.]” Dkts. 14 #111 at Ex. B, #110 at ¶ 3. While SIMC appears to argue that it exercised its best efforts by 15 continuing to negotiate and seek other offers, it provides no reasoning as to why it did not “notify 16 Soundkeeper of the occurrence . . . no later than fifteen days after the occurrence of the event.” 17 Dkt. #84 at 11. 18 19 Even with the existence of a force majeure event, SIMC’s time was only extended “for a 20 reasonable period[,]” which is not demonstrated by the record. Id. at 12. SIMC began design 21 discussions with the new vendor, Wendt, in the summer of 2023, and learned of the higher cost 22 estimate on the deduster system on March 8, 2024. Dkt. #110 at ¶¶ 6-7. SIMC, at minimum, 23 communicated this process during this time to Soundkeeper. Dkt. #102 at 6. However, while 24 25 SIMC alerted Soundkeeper on June 21, 2024, that it was “conducting some additional 26 engineering studies to confirm fit and functionality of the proposed equipment” while negotiating 27 for the deduster, the record reflects that SIMC only communicated this vague “negotiating” 28 language until requesting a meeting to discuss “issues with the Phase II study results” on April 1 2 2, 2025. Dkts. #102 at 6-7, #103 at Ex. J, #111 at Ex. D. SIMC communicated that the further 3 studies were part of “working with Wendt to ensure that the equipment, the design of which is 4 still being refined, will achieve the performance standards set forth in the consent decree.” Dkt. 5 #111 at Ex. E. But SIMC did not inform Soundkeeper of “encountering some issues” with the 6 testing until April 2, 2025, and requested data from the Phase I and II testing from Dr. Sahu on 7 8 April 28, 2025. Id. at Ex. G and H. While nothing in the docket confirms exact dates, this leads 9 the Court to infer that SIMC learned of these alleged issues with Dr. Sahu’s testing between 10 March 2024 and April 2025. But the record is remiss of any notice by SIMC of these alleged 11 issues until it “flagged these issues” and requested data and a future conference call in April 12 13 2025. Id. at Ex. H; Dkt. #108 at 7. Meanwhile, all of SIMC’s communications with Soundkeeper 14 suggested it was working on the design of the deduster, not determining if its existence was 15 necessary. 16 The Court fails to understand why SIMC did not communicate these issues when it 17 learned of them, when it submitted required quarterly summaries on its progress (see Dkt. #88 18 19 at 10, Sec. 7(h)), when SIMC requested data and a future meeting, or when Soundkeeper invoked 20 the dispute resolution process.1 The Consent Decree clearly provides a process for any “dispute 21 regarding implementation of, or compliance with, this decree,” which surely a dispute over the 22 very necessity of building a deduster would fall under. Dkt. #84 at 12. Any actual finding on 23 whether the deduster is required is unnecessary to find contempt, as SIMC unilateral decisions 24 25 render the terms of the Consent Decree irrelevant and “defeats the object of the parties entering 26 27 1 Separately, SIMC provides no resp onse at to the gap in time between receiving requests for corrections on its wind fences and trommel enclosure from the City of Seattle (May 29, 2024) and Soundkeeper learning of this and SIMC’s 28 lack of response from the City of Seattle (April 17, 2025). Dkt. #103 at ¶ 4 and Ex. Q; see also Dkt. #88 at 4 (requiring SIMC “to promptly respond[] to any City of Seattle requests for corrections”). into a contract.” Jeff D. v. Otter, 643 F.3d 278, 284 (9th Cir. 2011). 1 2 Given all of the above, the Court finds that SIMC violated the Consent Decree and has 3 not met its burden of establishing any equitable defense through a good faith and reasonable 4 interpretation of the Decree’s terms or otherwise. See In re Dual Deck Video Cassette Recorder 5 Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993) (holding that a good faith and reasonable 6 interpretation of terms constitutes substantial compliance); see also Cmty. Ass’n for the 7 8 Restoration of the Env’t v. Nelson Faria Dairy, Inc., No. CV-04-3060-LRS, 2011 WL 6934707, 9 at *2 (E.D. Wash. Dec. 30, 2011) (finding no equitable defense when the defendant did not 10 communicate changes or show “reasonable reliance . . . that it did not have to comply with the 11 very specific terms of the Consent Decree”). 12 13 B. Remedies 14 Soundkeeper requests that the Court impose compensatory and coercive sanctions, award 15 attorneys’ fees and costs, and extend the term of the Consent Decree. Dkt. #102 at 15-16. 16 Soundkeeper points to the parties’ stipulated penalty provisions from the Amended 17 Consent Decree. Id. at 15. However, these stipulated penalty provisions are based on delays 18 19 after an agreed upon term following the City of Seattle’s issuance of permits. See Dkt. #88 at 3, 20 4, 5. These penalty provisions do not apply here. Soundkeeper also does not suggest, and this 21 Court cannot determine, a proper amount in or reason for coercive sanctions here. Instead, the 22 Court finds an appropriate sanction to be awarding Soundkeeper its attorneys’ fees and costs in 23 bringing this Motion to enforce the Decree, per the parties’ agreement. See Dkt. #82 at 12. 24 25 Similarly, both parties suggest that extending the Consent Decree is necessary. Dkts. 26 #102 at 16, #108 at 12. Currently, the Consent Decree terminates on March 15, 2026. Dkt. #88 27 at 11. “Because the decree contains an express expiration date for the court’s retention of 28 jurisdiction, any change to that date entails a modification of the decree.” Labor/Cmty. Strategy 1 2 Ctr. v. L.A. Cty. Metro. Transp. Auth., 564 F.3d 1115, 1120 (9th Cir. 2009). “The scope of a 3 court’s authority in modifying a consent decree is broader than the court’s authority in enforcing 4 a consent decree.” Washington v. Moniz, No. C08-5085RMP, 2015 WL 12643792, at *11 (E.D. 5 Wash. May 11, 2015). 6 The Court agrees that an extension to the Consent Decree’s deadline is necessary to fulfill 7 8 obligations and/or discuss potential modifications. But the Court disagrees with Soundkeeper’s 9 nebulous, perhaps endless, timeline of until “90 days after full implementation and completion 10 of all requirements” has occurred. Dkt. #102 at 16. Instead, the Court will extend the current 11 deadline by six months, giving the parties ample time to meet and confer on remaining 12 13 requirements and file, if any, further requests for modifications. 14 IV. CONCLUSION 15 Having considered the instant Motion, relevant briefings, and the remainder of the docket, 16 the Court hereby finds and ORDERS: 17 (1) Soundkeeper’s Motion to Enforce and Modify Consent Decree, Dkt. #102, is 18 19 GRANTED IN PART. 20 (2) The Consent Decree’s deadline of March 15, 2026, is hereby extended for six (6) 21 months, until September 15, 2026. 22 (3) SIMC shall pay for Soundkeeper’s costs, including reasonable attorneys’ fees, 23 incurred in enforcing the Consent Decree. Soundkeeper is direct to file an accounting 24 25 of these costs within two (2) weeks of this Order. The Court will review this 26 accounting and issue a subsequent order. No response is needed from SIMC unless 27 requested by the Court. 28 1 (4) The Court declines to impose other monetary sanctions. 2 3 DATED this 13 day of March, 2026. 4 5

7 Ricardo S. Martinez United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER GRANTING IN PART PLAINTIFF’S MOTION TO ENFORCE AND MODIFY CONSENT DECREE - 10