Waste Action Project v. Fruhling Sand & Topsoil, Inc.
2:17-cv-00498
| W.D. Wash. | Feb 25, 2020Background
- Plaintiff Waste Action Project sued Fruhling Sand & Topsoil, Inc. alleging Clean Water Act violations for discharging arsenic‑contaminated groundwater from a buried conveyance pipe at the Facility (1010 228th St SW, Bothell, WA) to Crystal Creek without an NPDES permit; parties stipulated to those discharges.
- Ecology issued Agreed Order No. 16479 requiring Fruhling to investigate feasible remedies (treatment/infiltration, sewer connection, or individual NPDES), remediate orange‑stained sediments, and implement corrective actions and monitoring.
- The Consent Decree requires Fruhling to comply with its Sand & Gravel NPDES Permit (WAG503168), implement the Agreed Order (including corrective actions and SMP revisions), prevent methane condensate discharges, and provide quarterly progress reports.
- Monetary terms: Payment in lieu of penalty equal to the lesser of 50% of net sale proceeds of the Property or $400,000 (monthly $5,000 installments); attorney/expert fees and costs of $200,000 payable under a secured promissory note (monthly $5,000 installments).
- The decree provides release of CWA claims covered by the settlement upon satisfaction of obligations and termination; it is not an admission of liability by Fruhling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fruhling discharged pollutants (arsenic) to surface water without NPDES authorization | Fruhling discharged arsenic‑contaminated groundwater via a buried pipe to Crystal Creek, in violation of the CWA and state water quality rules | Fruhling contested liability but stipulated facts for settlement and negotiated remedial measures; did not admit broader culpability | Court approved consent decree based on stipulations; parties resolved alleged unpermitted discharge via injunctive and remedial obligations (no trial adjudication) |
| Scope and form of injunctive relief needed to abate discharge | Injunctive relief and corrective action (treatment/infiltration, sewer connection, or individual NPDES) and remediation of stained sediments are necessary to protect water quality | Agreed to implement Ecology’s corrective plan and to seek required permits/approvals rather than litigate remedial scope | Decree orders full compliance with NPDES and Agreed Order: feasibility study, implementation of selected remedy, SMP revision, methane condensate control, MTCA compliance for off‑site contamination, and progress reporting |
| Monetary relief (penalties, payments in lieu, and fees) | Sought civil penalties and costs; negotiated environmental benefit payments and attorneys’ fees | Offered structured payments in lieu of penalties and payment of plaintiff’s fees by promissory note; committed to sell property to satisfy obligation | Court approved payments: payment in lieu of penalty = lesser of 50% of net sale proceeds or $400,000 (monthly $5,000 until satisfied) and $200,000 for fees/costs under secured promissory note (monthly $5,000 installments) |
| Release, enforcement, and termination conditions | Settlement should provide release of claims once remedial and payment obligations are satisfied; provide enforceability mechanisms | Agreed to release of covered claims upon satisfaction and to court retention of jurisdiction; reserved right to contest court approval if not accepted | Decree releases CWA claims covered by the complaint upon termination; retains court jurisdiction for enforcement; decree not an admission of liability; termination upon (a) satisfaction of payments and (b) Ecology issuance of No Further Action or two years after entry, whichever is later |
Key Cases Cited
- No reported cases cited in the consent decree or Agreed Order (the documents rely on statutes, regulations, Ecology administrative authority, and the parties’ stipulation).