TagACC(1521)

1. I am attorney of record for Airport Communities Coalition (ACC). I have personal knowledge of the matters set forth below and am competent to be a witness herein. 2. On March 27, 2002 Paul Fendt was produced as a witness in the hearing on the z3 merits in this matter. I cross-examined Mr. Fendt on behalfofACC. Prior to direct examination, I asked that certain portions of Mr. Fendt's testimony, described in the accompanying motion, be redacted from the record. The parties ORIGINALH L'ELFETTERMAN DECLARATION OF RACHAEL PASCHAL OSBORN - 1 ALimitedLiabilitvP............ hip AR 001905 _ooP._,sou.°_z__o.ox_,_,,SEATTLE,WA 98111-3846 PH:(206)292-1144 were directed to confer with each other and with Administrative Law Judge Eric Lucas. 3. On March 29. 2002, I reminded Mr. Gil Reavis, counsel for the Port of Seattle, that we needed to resolve the issue of redaction of Mr. Fendt's testimony. I indicated to him the sentence and exhibit ACC proposed for redaction. Hc stated he would talk with Mr. Fendt and Set back to me. 4. On April 3, 2002, I scat an e-mail to Mr. Reavis asking again that he inform me of the Port's position concerning the proposed redaction.10 5. I received no response until April 8, 2002, when I was contacted by Mr. Stephen Tan of Mr, Reavis' office. Mr, Tan indicated that Mr, Reavis had left on var_tion and that the Port believed the material proposed for redaction to fall outside the scope of the Board's order redacting materi_ not produced prior to Fcbrua_ry28, 2002.…

ACC moves for redaction of a portion of the pre-filed direct testimony of Paul Fendt, consulting hydrologist for the Port of Seattle, as described below. This motion was first made during the hearing; the Board ordered the parties to confer on ACC's proposed redactions. It is renewed now because, after considerable delay, Port counsel have responded by flatly rejecting ACC's proposal. AN 001898 II. FACTS On March 7, 2002, the Port produced its pre-filed direct testimony, including testimony from Port consultant Paul Fendt of Parametrix, Inc. In his pre-filed testimony, Mr. Fendt discussed low flow frequencies in the three streams surrounding Sea-Tac Airport, including HELSELL ACC' MOTION TO REDACT ORIGINAL FETTERMANTESTIMONY OF PAUL FENDT - 1 ALimitedLiabilityP(........."dlip 1500PUGETSOUNDPLAZA EO.BOX21846 SEA_I-LE,WA 98111-3846 PH:(206) 292-I144 Walker Creek. Among other assertions, Mr. Fendt stated at paragraph 42 that, "In Walker Creek, of the 47 low flows occurred between August 7 and November 9." Pre-Filed Direct Testimony of Paul S. Fendt, P.E. ("Fendt Pre-Filed") at p. 11, lines 18-19. ACC moves for the redaction of that sentence. Mr. Fendt also attached to his pre-filed testimony a chart providing a graphical representation of Walker Creek low flow frequencies. Fendt Pre-Filed at Exhibit C,6 third page ("7-Day Low Flow Occurrences in Walker Creek, 1949-1995 (1994 HSPF)"). ACC moves for the redaction of all of Exhibit C to the Fendt Pre-Filed Testimony. Questions about the version of the Walker Creek chart in the December 2001 Low Flow Plan had been raised by Ecology reviewer Kelly Whiting in…

1. Declarant. I have personal knowledge of the facts set forth in this declaration and would be competent to testify to them if necessary. 2. Receipt of Notes from February 12, 2002 Meeting Between Kelly Whiting, Keith Smith and Ann Kenney. Kelly Whiting, Ann Kenny and Keith Smith met on February 12, 2002. At that meeting, Mr. Whiting gave Ms. Kenny and Mr. Smith an overview of his comments on the December 2001 Low Flow Plan prepared by the Port of Seattle. Keith Smith took notes at that meeting, which he transmitted to me. Mr. Smith requested that I and others working on low flow issues begin work on some of the issues as soon as possible. 3. Meeting With Kelly Whiting for February 19, 2002. On February 19, 2002, a number of Port consultants, myself included, met with Kelly Whiting to discuss his comments on the Port's December FIFTH DECLARATION OF PAUL S. FENDT, P.E. - 1 FOSTER PEPPER _ SHEFELMAN PLLC 1111 TmRD AVENUE, SUITE 3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 50309885.04 AR 001896 APR-17-02 WED09:41AH FAX NO, P, 02 2001 l,ow Flow Plan. It was at this meeting that Mr. Whiting presented us with his draft comments, which are dated February 19. 4, Based on. Keith Smith's Request, Revisions to the Walker Creek Low Flow Period Had Ah'eady Been Completed Prior to the February !9, 2002 Meeling. In response to Kcith Smith's odginal request Ihat wc begin work on Kelly Whiting's preliminary comments, I had directed |hat membeJ,-s…

_ v. ACC'S MOTION TO REDACT TESTIMONY _12 OF PAUL FENDT, P.E. DEPARTMENT OF ECOLOGY and3 THE PORT OF SEATTLE, ¢.D ---_4 Respondents. cY The Port of Seattle ("Port") submits the following response to ACC's motion to redact the testimony of Paul Fendt. 1. The Calculations That Supported the Fendt Testimony Were Not Undertaken After the Discovery Cutoff Or In Response to Kelly Whiting's February 19 Comments on the Low Flow Plan. With its motion, ACC seeks to strike a single sentence and one exhibit from the testimony of Paul Fendt. ACC grounds its motion on the contention that the work that formed the basis for that statement and the exhibit was performed after the discovery cutoff and in response to the February 19, 2002 comments of Kelly Whiting. ACC is incorrect. Mr. Whiting's preliminary comments on the December Low Flow Plan were relayed by Mr. Whiting to Keith Smith on February 12, 2002 (and were in turn relayed by Mr. Smith to Mr. Fendt). In response to Mr. Smith's report, Mr. Fendt updated the analysis of the low flow period for PORT OF SEATTLE'S RESPONSE TO ACC'S MOTION TO FOSTER PEPPER _ SHEFELMAN PLLC REDACT TESTIMONY OF PAUL S. FENDT - 1 1111 THmV AVENUE,SUITE3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 _o32o3o,o, AR 001892 Walker Creek before his February 19 meeting with Kelly Whiting. He also prepared the document that 2- was attached to his testimony as Exhibit C before the February 19 meeting. See Fifth Declaration of Paul S. Fendt,…

Litigation is not supposed to be an exercise in mind-reading. The purpose of discovery is to provide a mechanism for making relevant information available to the litigants in a timely17 fashion. "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495 (1947). 2o There are two pieces of sworn testimony relevant to this motion. First is a statement made by King County reviewer Kelly Whiting at his February 28, 2002 deposition indicating that, although he had discussed the problem of low flow frequencies in Walker Creek with Port consultants, he had not as of the date of his deposition received corrections to the Low Flow Plan. See Declaration of Peter J. Eglick, Attachment 1 (filed with Appellant's opening brief).25 The second relevant testimony is Mr. Paul Fendt's post hoc explanation, attached to the Port's ACC'SREPLYMEMOINSUPPORTOF OR_g _, ¢ _i' _ L HELSELLMOTION TO REDACT TESTIMONY I i _i_ F E T T E R M A N OF PAUL FENDT - 1 A Limited Liability P........... hip AN 001887 , ooPooET8o°No .o..ox21846 SEATTLE, WA 98111-3846 PH: (206) 292-1144 response brief, that he had investigated the issue, resolved it, and prepared a piece of evidence indicating his resolution, all during the month of February. He did not, however, share that information with Mr. Whiting or Appellants until March 6 or 7. The sentence at page 11, lines 18-19 of Mr. Fendt' s pre-filed direct testimony, along with the March…

On April 11, 2002, Appellant ACC filed a motion to redact portions of the pre- filed testimony of Paul Fendt. The basis for this motion is the Board's earlier ruling on a motion to strike certain pre-filed testimony. That earlier order clearly set forth the need for a discovery cut off and set the date as February 28, 2002. The parties were "prohibited from relying on information created after February 28, 2002." Specifically, the order prohibited the parties from indicating "what the Port or Ecology has done since February 28, 2002, .... to revise, clarify, explain or modify the Low Flow Plan." In the current motion, the alleged offense comes from discussions and work conducted on the Low Flow Plan between February 12, 2002 and February 19, 2002, PCHB 01-160 1 ORDER DENYING ACC'S MOTION TO REDACT AR 001885 but which did not get collected and delivered until March 6, 2002, after the discovery cut-off noted above. This case is complicated by the changing documentation resulting from on- going work on various aspects of the required mitigation plans at the airport. Although the intent of these modifications appears to be to make the plans better, these efforts impair the ability of the Board or the other parties to know the current status of each plan. The purpose of a bright-line discovery cut-off is to make relevant information available to the litigants in a timely fashion. The situation created by Mr. Fendt's material is not as clearly violative of the Board's…

On April 9, 2002, the Board issued an order along with an attached matrix setting forth the admissibility and purpose of the evidence put forward in this case. Although the parties were directed to remove duplicative exhibits, the parties chose instead to cross-reference duplicative numbering. This was not reflected in the earlier evidentiary order. As a result, some of the exhibit numbers may have an inconsistent admissibility status. To correct this inadvertent oversight, the Board declares that if one exhibit is admitted, its duplicate is also admitted. ORDER The matters set forth in this order shall supplement the previous post-heating evidentiary order. PCHB No. 01-160 1 SUPPLEMENTAL POST-HEARING EVIDENTIARY ORDER AR 001883 SO ORDERED this _-" day of t_Crl _ , 2002. POLLUTION CONTROL HEARINGS BOARD Presiding PCHB No. 01-160 2 SUPPLEMENTAL POST-HEARING EVIDENTIARY ORDER AR 001884

EXPANSION, ) ECOLOGY MANAGERS AND CR 30(b)(6) ) DESIGNATED WITNESSES Intervenor, ) ) v. ) ) STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) ) On March 19, 2002, during the hearing on the merits, the Board entered its ruling on appellant ACC's Motion To Publish Depositions of Ecology Managers and CR 30(b)(6) Designated Witnesses. The Board ruled that no deposition would be admitted carte blanche. Instead, the Board set forth a detailed process for publishing the depositions of Tom Fitzsimmons, Gordon White and Ray Hellwig under CR 32(a)(2), and Ann Kenny, Erik Stockdale, John Drabek, Kevin Fitzpatrick and Peter Kmet under CR 30(b)(6). The parties have submitted the materials as directed in the earlier order. The Board has reviewed the materials and enters this order based on the objections and responses raised. For ease in formatting, the order will be organized so that the objections with which the Board agrees will be described. All other objections are overruled by the Board. This order lists those segments of the depositions PCHB No. 01-160 1 ORDER PUBLISHING DEPOSITIONS AR 001494 that are admitted. Attached to this order is a copy of each of the depositions clearly showing those portions that are not admitted. OBJECTIONS John Drabek: All Objections were overruled on Mr. Drabek's deposition. Kevin Fitzpatrick: The following objections were upheld on Mr. Fitzpatrick's deposition: FROM TO REASON Page 62, line 19 page 63, line 1 Foundation, speculation. Page 79, line 18…

judgment in favor of the Port on Agreed Issue No. 14 ("Did Ecology and the Port comply with SEPA?"). ACC claims that Ecology's 401 Certification is invalid because the Port and Ecology failed to comply with the State Environmental Policy Act ("SEPA"). In particular, ACC claims that the environmental impact statements, and other environmental documents, issued for the Port's Master Plan Update development actions by the Port and Federal Aviation Authority ("FAA") are legally inadequate and that a supplemental environmental impact statement must be prepared. Agreed Issue No. 14; Notice Of Appeal, p. 41. With respect to Ecology, ACC claims that Ecology "failed to act" to require the Port to prepare a supplemental environmental impact statement. ACC makes this claim ORIGINAL PORT'S MOTION FOR PARTIAL SUMMARY FOSTER PEPPER _ SItEFELMAN PLLC JUDGMENT ON SEPA ISSUE - 1 1111 TmRD AVENUE,SUIT_3400 SEATTLE,WASrImGTON98101-3299 ,o_,,,_,.o_ AR 003756 206-4474400 .... even though it is clear that Ecology's actions (a 401 certification and a certification of consistency with the Coastal Zone Management Program) are exempt from SEPA's requirements. WAC 197-11- 800(10);WAC 197-11-855(3). A review of the extensive environmental review conducted by the FAA and Port will show the substance of ACC's claims have no merit. (Relevant portions of that environmental review are discussed below and attached to the accompanying Declaration of Michael Feldman.) However, the Board does not need to reach the substance of the FAA's and Port's environmental review in order to grant summary judgment on this issue, because the Board lacks jurisdiction to…

v. ) MODIFYING DUE DATES FOR JOINT s ) STATUS REPORT AND FOR PROVIDING DEPARTMENT OF ECOLOGY and ) BOARD WITH ESTIMATE OF TIME THE PORT OF SEATTLE, ) NEEDED FOR HEARING ) Respondents. ) (CLEAN WATER ACT SECTION 401 _Z ) CERTIFICATIONS #1996-4-02325, #1996-4- ) 02325 (AMENDED-I)) :3 ;THE PORT OF SEATTLE, ) ) Appellant, )