TagACC(1521)

On March 19, 2002, at 1:00 p.m., during the hearing on the merits, the Board entered its ruling on appellant ACC's Motion In Limine to Exclude Late-Produced Plans and Reports. Kaleen Cottingham presided for the Board. The parties were represented by Kevin Stock and Michael Witek (for ACC), Rick Poulin (for CASE), Gillis Reavis (for the Port) and JeffKray (for Ecology). Kim Otis provided court-reporting services. The following reflects the decisions made after hearing from all parties: RULING ON MOTION TO EXCLUDE LATE-PRODUCED PLANS The Board denies ACC's Motion In Limine to Exclude Late-Produced Plans and Reports. This ruling is based on the Board's pre-hearing order which set tight time lines for the production of plans and reports "prepared or expected to be prepared pursuant to the §401 certification." PCHB No. 01-160 1 ORDER DENYING APPELLANT'S MOTION TO EXCLUDE LATE-PRODUCED PLANS AR 002106 The operative intent of the pre-hearing order, as evidenced by the transcript of the hearing, was to prevent the late presentation of those formal aspects of the §401 conditions. None of the 17 items identified by ACC were prepared pursuant to the §401 certification so these items will not be excluded. ORDER The Board DENIES ACC's Motion In Limine to Exclude Late-Produced Plans and Reports. SO ORDERED this i ayof /_/_ i'L_[:_ .,2002. POLLUTION CONTROL HEARINGS BOARD ! /" / I' i/ t_" /, r_ t ,,,_l-,--t'_/ / ___O._-. _,_ IO_EEN COTTIN_'I_.&M, Presiding L_) PCHB No. 01-160 2 ORDER DENYING APPELLANT'S MOTION TO EXCLUDE LATE-PRODUCED PLANS AR…

A. Ecology's Issuance of the September 401 After Pressure from the Governor's Office and Closed-Door Negotiations with the Port Violated Applicable 401 Regulations and Requirements for CZMA Certification (Issue 1, Issue 2) 4 B. The 401's Temporal, Operational and Geographic Limitations Violate the Requirements of the Clean Water Act and Applicable State Water Quality Law (Issue 3) 5 C. There Must Be Reasonable Assurance at the Time of Certification (Issue 5), and a Certification Cannot Rely on Data, Reports, and Plans which Were Not in Being at the Time of Issuance -- Many of Which Are Still Not Finalized Six Months Later (Issue 6) 6 D. The 401 Falls Far Short of Reasonable Assurance that the Port's Proposed Wetland Fills, Stream Alterations and Related Activities Will Not Violate Water Quality Standards (Issue 7, Issue 19) 10 E. The 401 Fails to Provide Reasonable Assurance in Its Reliance on Future Monitoring as a Substitute for Current Proof of Compliance, And In Its Failure to Require Adequate Pre-construction Monitoring (Issue 7) 14 F. The 401 Falls Far Short of Reasonable Assurance That There Will Not Be Low Flow Impacts and Consequent Water Quality Degradation as a Result of the Project (Issue 8) 16 1. Introduction 16 2. Early History of the Low Flow Plan 17 AR 002066 3. December 2001 Low Flow Plan 19 4. General Explanation of Low Flow Modeling 19 5. Calibration 21 6. Multiple Models 23 7. Target Flows 24 8. Model Inclusiveness: IWS & Borrow Pits 25 9.…

On March 21, 2002, at 1:00 p.m., during the hearing on the merits, the Board entered its ruling on appellant ACC's Motion In Limine to Exclude the Testimony of Dave Garland. Kaleen Cottingham presided for the Board. The following reflects the decisions made after reviewing the written submittals from all parties: RULING ON MOTION TO EXCLUDE THE TESTIMONY OF DAVE GARLAND 1. In its ruling on Appellant's Motion To Exclude Late-Produced Reports the Board stated that the operative intent of the pre-hearing order, as evidenced by the transcript of the hearing, was to prevent the late presentation of those formal aspects of the {}401conditions. 2. On the instant motion, the March 6, 2002 report prepared by Dave Garland on the December 2001 low flow plan was "not a report or plan prepared or expected to be prepared PCHB No. 01-160 1 ORDER GRANTING IN-PART APPELLANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF DAVE GARLAND AR 002063 pursuant to the §401 certification." Accordingly, failure to produce this report by the February 1, 2002 deadline was not a violation of the pre-hearing order. 3. Discovery in this case has been governed in part by the basic discovery rules, including CR 26(e)(1)(B) the duty to supplement interrogatory responses regarding subject matter of expert witness testimony. In this matter ACC made a series of written and in-person inquiries to Ecology's counsel to determine whether Mr. Garland would testify with regard to the December 2001 low flow plan. Ecology made no response. Ecology even…

On March 21, 2002, at 1:30 p.m., during the hearing on the merits, the Board entered its haling on appellant ACC's Motion to Strike Certain Pre-filed Testimony and Limit Oral Testimony. Kaleen Cottingham presided for the Board. The following reflects the decisions made after hearing oral argument from all parties: RULING ON MOTION TO STRIKE PRE-FILED TESTIMONY AND LIMIT ORAL TESTIMONY The Pre-hearing order was clear. There needed to be a date for discovery cut off. The date established is February 28, 2002. Therefore any party is prohibited from relying on information created after February 28, 2002. In ruling on this motion, the Board will allow counsel to use the pre-filed testimony and PCHB No. 01-160 1 ORDER GRANTING APPELLANT'S MOTION TO STRIKE TESTIMONY AR 002058 direct and cross examination of witnesses to elicit how Ecology or the Port felt about or evaluated the comments of Kelly Whiting produced on or before the discovery deadline. But those witnesses may not indicate either in pre-filed testimony or in oral testimony what the Port or Ecology has done since February 28, 2002, in response to the comments of Kelly Whiting, to revise, clarify, explain or modify the Low Flow Plan. This ruling requires the parties to identify the particular sections ofpre-filed testimony and/or attachments which will need redacting. The redacted sections ofpre-filed testimony will be attached to this order. ORDER The Board GRANT'S ACC's Motion to Strike Pre-filed Testimony and Limit Oral Testimony. SO ORDERED this '2_ day of _ _A ,2002.…

the Northwest Regional Office. I am a hydrogeologist and supervisor of the Watershed Unit at Northwest Region Water Quality. The Watershed Unit is responsible for surface water cleanup planning (TMDLs), implementation of the Forests and Fish Agreement, and Water Quality Financial Assistance. I have been a hydrogeologist for 24 years and employed by Ecology since October, 1979. My duties as a hydrogeologist during my tenure with Ecology have included investigating and preparing findings for water right applications, defending controversial water right decisions before the Pollution Control Hearings Board, providing expert testimony at EFSEC hearings for proposed Northem Tier pipeline river crossings, investigating and reporting on groundwater quality impacts at dairies, gravel mines and at wastewater land application sites. I also served on a state personnel committee which established the state Hydrogeologist employee classification. 2. During my tenure with Ecology, I authored or co-authored the following reports and publications; Seawater Intrusion on South Camano Island, Washington, Water Rights near Lake Sawyer, King County Washington, High Rock Aquifer Break of 1993 (co-authored), Groundwater Quality Survey near Edaleen Dairy, Whatcom Co., WA(1994), Groundwater Contamination at Plowman Dairy near Yelm, Washington, Groundwater Impacts at Alger Rock Quarry, Bellingham Frozen Foods Response Summary, and San Juan Watershed Water Quality_Needs Assessment. 3. During most of the year 2000, I was Ecology's lead in managing special legislature mandated SeaTac Runway Fill and Maury Island gravel mining studies. Managing the studies involved developing the Request for Proposals, selection of a consultant, periodic briefings on study results, news releases,…

On March 21, 2002, the Board ordered Ecology to redact portions of Dave Garland's testimony and submit revised direct testimony on behalf of Dave Garland. Ecology has submitted Mr Garland's revised testimony under separate cover as "Revised Direct Testimony of Dave Garland Submitted on Behalf of the Department of Ecology. Ecology submits this document to memorialize the excluded statements from Mr. Garland's testimony. The excluded statements are as follows: 4. Most recently, I reviewed PGG's updated modeling of the embankment for the December 2001 Low Stream Flow Analysis and Summer Low Flow Impact Offset Facility OFFER OF PROOF RE: EXCLUDED 1 ATTORNEYGENERALOFWASHINGTON Ecology Division STATEMENTS FROM DAVE POBox40117 GARLAND'S TESTIMONY Olympia, WA 98504-0117 AR 002044 ORIGINAL FAX(360)586-6760 Proposal submitted by the Port of Seattle. The results of my reviews have been documented in memos to Ann Kenny and others dated March 9, 2001, May 5, 2001, August 7, 2001, -- 11. The report by Pacific Groundwater Group (PGG) of November 27, 2001 titled, "Port of Seattle Sea-Tac Third Runway Embankment Fill Modeling in Support of Low- Streamflow Analysis ", which occurs as Appendix B in Low Streamflow Analysis and Summer Low Flow Impact Offset Facility Proposal (Port of Seattle, December 2001) presents significant drainage estimate improvements for the proposed runway fill embankment over drainage estimates presented in "Sea-Tac Airport Master Plan Update Low Streamflow Analysis" (Earth Tech, 2000). 12. The improvement contained in the current report is a 'fill-depth sensitive' integration of the proposed embankment fill hydrology, which sums the…

At the conclusion of the hearing on the above noted appeal, the presiding officer articulated several post-hearing activities and timeframes. This order memorializes those actions and dates. The record in this case will remain open for a limited period of time and for a limited list of purposes. The Appellants shall submit the previously identified depositions to be published, along with the required summary, counter designated provisions from Ecology, and the objections and responses. This packet of material shall be filed with the Board and served on the other parties on or before Thursday, April 4, 2002. The Board will rule on the objections and enter the resulting depositions into the record. PCHB 01-160 1 POST HEARING PROCEDURAL ORDER AR 002041 The Board will finalize the matrix of exhibits indicating whether an exhibit has been stipulated, admitted for all purposes, or admitted for limited purposes. The designation shall be derived from the "matrix" developed before hearing and changes made during the hearing. During the hearing, the Board indicated that any objections previously noted on the matrix would need to be reasserted by the objecting party at the time the exhibit was offered. Failure to reassert the objection resulted in a waiver of that objection and such will be reflected on the revised matrix. For those objections that were reasserted, the Board's ruling during the hearing will now be reflected on the revised matrix. For those exhibits with objections that were not referenced during the hearing, the exhibit will be admitted,…

H E L S E L L £ _. R_"4, _0 rTh " FETTER MAN £__!/ ENV/Rc __-,:_.,"£.i:rTAL ItE; ,INc £; : cE POLLUTION CONTROL HEARINGS BOARD FOR THE STATE OF WASHINGTON AIRPORT COMMUNITIES COALITION ) And CITIZENS AGAINST SEA-TAC ) No. 01-160 EXPANSION, ) ) CERTIFICATE OF SERVICE Appellant, )

The hearing in the above-entitled matter was held during the period of March 18 to March 29, 2002. Prior to the hearing, on March 12, 2002, at 1:30 p.m., an evidentiary hearing was held for the purpose of addressing the admissibility of exhibits to be introduced in the upcoming hearing. The parties worked from a matrix of exhibits, prepared by the parties and distributed on March 11, 2002. An updated copy of this matrix, which incorporated the rulings made at the evidentiary hearing, was prepared by the parties and delivered to the Board on Thursday, March 14, 2002. This matrix was utilized during the hearing to aid the presiding officer in making further rulings on the admissibility of exhibits. Exhibits were numbered per prior Board order from 1 to 2240. Since the parties were given numbers to use in blocks, all the numbers in sequence were not utilized. In addition, some of the parties used numbers to refer to another party's earlier numbered exhibit. (See for PCHB No. 01-160 1 POST-HEARING EVIDENTIARY ORDER AR 001921 example Exhibit No. 2136.) The parties agreed that when multiple numbers described the same exhibit one number would be used as reference for exhibit labeling and at the hearing. During the hearing on the merits, the admissibility status of many of the exhibits changed. The purpose of this order is to amend the matrix to reflect the evidentiary rulings of the presiding officer at hearing. The updated matrix is attached to this order. At the…

1. I am attorney of record for the Airport Communities Coalition (ACC). I have personal knowledge of the matters set forth below and am competent to be a witness herein. 2. Attached to this declaration as Attachment 1 is a true and correct copy of an excerpt from the deposition of Kelly Whiting (title page and page 173), conducted on February 28,2002. AR 001907 3. Attached to this Declaration as Attachment 2 is a true and correct copy of the Walker Creek low flow occurrence chart from the July 2001 version of the Low Stream Flow HELSELL ORIGINALFETTERMANDECLARATION OF PETER J. EGLICK - 1 nLimitedLiabili,,Partner,hip1500PUGETSOUNDPLAZA P.O.BOX21846 SEATTLE,WA 98111-3846 PH:(206)292-1144 Analysis and Flow Impact Offset Facility Plan prepared for the Port of Seattle by Parametrix, Inc. 4. Attached to this Declaration as Attachment 3 is a true and correct copy of the Walker Creek low flow occurrence chart from the December 2001 version of the Low Stream Flow Analysis and Flow Impact Offset Facility Plan prepared for the Port of Seattle by6 Parametrix, Inc. 5. Attached to this Declaration as Attachment 4 is a true and correct copy of the March 2002 Walker Creek low flow occurrence chart submitted as the third page of Exhibit C to the Pre-Filed Direct Testimony of Paul S. Fendt, P.E. (3/7/02). declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 11thday of April, 2002, at Seattle, Washington.14 Peter J. Egli'c_ g:lukaccpchbdecl-eglick-fendt.doc AR…