TagACC(1521)

written direct testimony submitted by Appellant Airport Communities Coalition (ACC) that contravenes the Pollution Control Hearings Board's (Board) rules of practice. The ACC submitted pre-filed testimony of Thomas R. Luster, a former Ecology employee, identifying him as an expert witness. The Board's rules of practice prohibit such testimony. Chapter 371-08 WAC sets forth rules of practice before the Board. In WAC 371-08- 475(7), the Board addresses the ability of a former Ecology employee to appear before it as an expert witness. The rule provides: Former employee as an expert witness. No former employee of the department shall at any time after leaving the employment of the department appear, except when permitted by applicable state conflict of interest law, as an expert witness on behalf of other parties in a formal proceeding in which an o active part in the investigation as a representative of the department was taken. o') DEPARTMENTOFECOLOGY'S 1 ATTORNEYGENERALOFWASHINGTONO MOTIONIN LIMINERE: WAC371-08- F_ologyDivisionPO Box40117 1_ 475(7) Olympia, WA 98504-0117 FAX (360) 586-6760 ORIGINAL Pursuant to this rule, Ecology seeks a motion in limine striking those portions of the pre-filed written direct testimony of Mr. Luster where he offers expert testimony. The ACC submitted pre-filed written direct testimony of Mr. Luster in support of its appeal seeking to overturn Ecology's issuance of a Clean Water Act § 401 Certification to the Port of Seattle for construction activities at the Seattle-Tacoma International Airport. During his tenure at Ecology, Mr. Luster was assigned as Ecology's § 401 Permit Reviewer for…

motion in limine to exclude the testimony of Thomas R. Luster pursuant to WAC 371-08- 475(7). Given the overwhelming preponderance of legal and regulatory opinions stated in the testimony, the Port requests that the Board exclude Mr. Luster's testimony in its entirety or, in the alternative, require that it be resubmitted in a manner that eliminates all opinion testimony. AR 003187' JOINDER IN MOTION IN LIMINE BROWN REAVIS & MANNING PLLC PAGE 1 1191 SECONDAVE.,SUITE2200 SEATTLE, WA 98101 (206) 292-6300 Since ER 701 prohibits admission of opinion testimony by lay witnesses except in very limited circumstances not applicable here, and since WAC 371-08-475(7) precludes Mr. Luster from serving as an expert, all opinion testimony by Mr. Luster should be excluded.3 DATED this 5th day of March, 2002. BROWN REAVIS & MANNING PLLC Attorneys for the Port of Seattle BY: __., WSBA #21451 1191 Second Avenue, Suite 2200 Seattle, Washington 98101 (206) 292-6300 AR 003188 JOINDER IN MOTION IN LIMINE BROWNREAVIS & MANNING PLLC PAGE 2 1191 SECONOAVE.,SUITE2200 SEATTLE, WA 98101 (206) 292-6300 _ 5 20022 CERTIFICATEOr SrRVICr --,cIRUNA,IE hereby certify that I have on this 5th day of March, 2002, served a copy of_l_eUPb]tC/_ foregoing Joinder in Motion in Limine on the following persons, via facsimile and U.S. Mail: HELSELL FETTERMAN LLP Rachael Paschal Osbom Peter J. Eglick, WSBA #8809 WSBA #21618 Kevin L. Stock, WSBA #14541 Attorney at Law 1500 Puget Sound Plaza 2421 West Mission Ave. 1325 Fourth Avenue Spokane, WA 99201 Seattle, WA 981011-2509 Fax: (509) 328-8144…

YOU ARE HEREBY NOTIFIED of a change in attorneys for Respondent the Port of Seattle in the above-entitled action. All attorneys who have appeared in this action for the Port of Seattle will remain as counsel for the Port of Seattle, but MARTEN BROWN INC. will withdraw and be replaced by BROWN REAVIS & MANNING PLLC. The mailing addresses for BROWN REAVIS & MANNING will remain the same: Seattle, 1191 Second NOTICE OF WITHDRAWALANDSUBSTITUTION BROWNREAVIS&MANNINGPLLC 1191 SECONDAVE., SUITE2200 PAGE 1 SEATTLE, WA 98101 (206) 292-6300 AR 003184 Avenue, Suite 2200, Seattle, Washington 98101; and Olympia, 421 South Capitol Way, Suite 303, Olympia, Washington 98501. Phone and fax numbers remain the same.2 DATED this 5th day of March, 2002. MARTEN BROWN INC. Withdrawing Attomeys for The Port of Seattle __j_,A: _ ' By: Gillls E_Reavls, wSBA #21451 1191 Second Avenue, Suite 2200 Seattle, Washington 98101 (206) 292-6300 BROWN REAVIS & MANNING PLLC Substituting Attorneys for The Port of Seattle ___/__.._ -- By: _ Gillis E. Reav't_, WSBA #21451 1191 Second Avenue, Suite 2200 Seattle, Washington 98101 (206) 292-6300 AR 003185 NOTICE OF WITHDRAWAL AND SUBSTITUTION BROWN REAVIS & MANNING PLLC PAGE2 1191 SECONDAVE.,SUITE2200 SEATTLE,WA 98101 (206) 292-6300 MAR- 5 2002 ENVIRONMENTAL CERTIFICATE OF SERVICE HEARINGs OFFICE hereby certify that I have on this 5thday of March, 2002, served a copy of the foregoing Notice of Withdrawal and Substitution of Counsel on the following persons, via facsimile and U.S. Mail: HELSELL FETTERMAN LLP Rachael Paschal Osbom7 Peter J. Eglick, WSBA #8809 WSBA…

March4, 2002 F E T T E R M A N PeterJ.Eg,ick A.o,._yAEI_CIRONMENTAL a..,,,.,_,°.,.y,_o.°er._,,_ HEARINGS OFFICE By Fax and Mail Hen. Kaleen Cottingham Presiding Officer Pollution Control Hearings Board Office of Environmental Hearings 4224 6th Avenue SE Building 2, Rowe 6 Lacey, WA 98503 Re: PCHB No. 01-160, ACC v. Dept. of Ecology and Port of Seattle: Dear Presiding Officer Cottingham: In light of the correspondence last week concerning use of a chess clock during the hearing, enclosed with this letter is a copy of the Verbatim Report of Proceedings in which Thurston County Superior Court Judge Hicks denied the Port's Motion to Set Aside the Board's Stay Order. Judge Hicks explicitly suggested at page 6 use of a chess clock format, with time per "side": From time to time we get complex cases that counsel estimate can't be done in a four- week time period, or they get ten days and they don't think they can get it done, and we only ten days to give them. Several of the judges -- I'm not the only one -- have done this. We've put what we call a chess clock on and we limit each side. But you have to be clever. We keep track minute by minute and the clerk does, too. If you look at the clerk's minutes, you'll see they can tell you when every witness starts, when the cross- examination starts, when the redirect starts. And we give both sides an equal amount of time, whether…

ACC & CASE v. Dept. of Ecology & Port of Seattle am a member of the City Council of Burien, Washington. I have also served in the past as Mayor of Burien and as a member of the Airport Communities Coalition Executive Committee. The purpose of this testimony is to introduce ACC to the Board and to put into perspective for the Board ACC's reasons for participating in this review. The Airport Communities Coalition is an entity established by interlocal agreement and composed of the Cities of Burien, Des Moines, Federal Way, Normandy Park, and Tukwila, and the Highline School District, with a combined population of over 15o,ooo citizens. ACCwas formed for the purpose of, inter alia, participating in the governmental review process related to the Port of Seattle's proposed third runway and related Master Plan developments ("Third Runway Project") at Seattle-Tacoma International Airport ("Sea-Tac Airport" or STIA"). The ACC municipalities and school district would be particularly affected by construction of the Third Runway Project because they are the communities closest to Sea-Tac Airport (excluding the City of SeaTac itself, which receives millions of dollars a year from the Port and supports the Third Runway Project). AR 003172 The ACC municipalities have particular stewardship responsibilities for the streams and watersheds within their boundaries, including Des Moines Creek, Miller Creek, Walker Creek, and Gilliam Creek. ACC and its members have a vital interest in ensuring that the Port's proposed project complies with the requirements of the Clean Water Act, the Coastal…

On March 6, 2002, a pre-hearing conference was held to address several issues in advance of the upcoming hearing on the above noted appeal. In particular, the parties asked the Board to address the following: allocation of hearing time; allocation of hearing room seating; numbering of the exhibits; examination of witnesses; and other preliminary matters. The hearing was conducted by Kaleen Cottingham, presiding, and was attended by Board member Bill Lynch and AAJ Eric Z. Lucas. The parties were represented by Peter Eglick, Kevin Stock and Rachel Paschal Osbom (for ACC), Rick Poulin (for CASE), Gil Reavis and Roger Pearce (for the Port) and Tom Young (for Ecology). Betty J. Koharski provided court-reporting services. The following reflects the decisions made after hearing from all parties: PCHB No. 01-160 1 THIRD PRE-HEARING ORDER AR 003151 1. Allocation of hearing time The parties have agreed to the use of a "chess clock" as a means to keep accurate accounting of the time utilized in the heating. The Appellants have agreed to provide an easy-to- use chess clock for use during the heating. The entire two week heating, not counting time for lunch breaks, rest breaks, and opening and closing arguments, consists of approximately 45 hours for the parties to present their witnesses and exhibits. The parties have agreed to an allocation of 22 ½ hours per side. This time includes all direct examination, cross examination, re-direct and rebuttal witness testimony. In addition, specific allocations cover the time consumed by objections and board…

Thomas R. Luster declares under penalty of perjury as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. I have been made aware of a Motion in Limine filed by Ecology requesting that portions of my pre-filed testimony be struck from this appeal. I understand that the basis of this request is Ecology's contention that I am inappropriately serving as an expert witness. I am providing this declaration to the Board in response to that motion. 2. My understanding is that my involvement in this appeal has been not to necessarily advocate for any one party, but to provide the Board with the benefit of my experience at Ecology with water quality certifications in general and with this proposed project R I G [ NA L.ELSELLFZrrERMANLLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF THOMAS R. LUSTER - I Seattle, WA 98101-2509 Spokane, W'A 99201 AR 003146 specifically. I do not have a contractual arrangement with any party in this appeal agreeing to serve as an expert witness, and I am not being paid for my time. I am, however, being reimbursed for some of my expenses in this matter - the Port of Seattle has agreed to reimburse me for travel expenses associated with my deposition; the Washington Public Employees for Environmental Responsibility (PEER) agreed to pay a portion of my attorney fees associated with…

v. OF FACT AND CONCLUSIONS OF LAW DEPARTMENT OF ECOLOGY and THE PORT OF SEATTLE, Respondents.

and ) IN SUPPORT OF OPPOSITION BY ACC10 ) AND CASE TO DEPARTMENT OF CITIZENS AGAINST SEATAC ) ECOLOGY'S MOTION IN LIMINE RE EXPANSION, ) WAC 371-08-475(7) ) Intervenor, )13

v. ) MOTION IN LIMINE RE WAC 371- ) 08-475(7) lO DEPARTMENT OF ECOLOGY and ) THE PORT OF SEATTLE, ) ) Respondents. ) I. INTRODUCTION Ecology, joined by the Port, has belatedly moved to prevent appearance in this case by Thomas R. Luster claiming that "The Board's rules of practice prohibit such testimony." Ecology's one-page (plus case caption) motion is based only on WAC 371-08-475(7), "Former Employee as an Expert Witness." It does not cite any case law or statute, nor does it offer any evidence that Mr. Luster's appearance falls within the scope of the regulation. 1 In fact, his appearance does not.19 Further, Ecology and the Port long ago waived any fight to claim otherwise. II. ARGUMENT AND AUTHORITY A. The Provisions of WAC 371-08-475(7) Do Not Apply to Mr. Luster's Role in This Case. AR 003129 If Ecology (or the Port) attempt to meet their burden for the first time on Reply, then ACC requests that the Board either deny Ecology's motion or order that ACC be given a further opportunity to respond. ORIC_I_AI OPPOSITION BY ACC AND CASE TO HELSELLFETTERMANLLP RachaelPaschalOsborn DEPARTMENT OF ECOLOGY'S MOTION IN 1500PugetSoundPlaza Attorneyat Law LIMINE RE WAC 371-08-475(7)- 1 1325FourthAvenue 2421WestMissionAve. Seattle, WA 98101-2509 Spokane, WA 99201 WAC 371-08-475(7) provides: Former Employee As An Expert Witness. No former employee of the Department shall3 at any time after leaving the employment of the Department appear, except when permitted by applicable state conflict of interest law, as an expert witness on behalf…