Notes
Pollution Control Hearings Board (PCHB) Order Denying Motion in Limine in case PCHB 01-160, filed March 4, 2002. Department of Ecology moved to strike pre-filed written direct testimony of Thomas R. Luster submitted by Airport Communities Coalition (ACC), citing WAC 371-08-475(7) prohibiting former department employees from appearing as expert witnesses in proceedings where they took an active part as department representatives. Citizens Against Sea-Tac Expansion (CASE) is intervenor; Port Of Seattle is co-respondent. Board denied the motion on grounds of implied waiver under Kessinger v. Anderson, 31 Wn.2d 157 (1948), finding Ecology failed to object for over five months despite multiple witness list filings and two depositions of Luster. Board also noted the thin line between lay and expert witness in governmental program matters, and disclaimed jurisdiction over potential ethics violations under RCW 42.52.080 and RCW 42.52, reserving that issue to the Executive Ethics Board. Section 401 Certification is the underlying subject of the appeal.