TagACC(1521)

2. Attached hereto are true and correct copies of the following: Ex. 1. Excerpts from the Deposition of Thomas Luster; Ex. 2. Cover page from Pre-Filed Testimony of Thomas F. Luster; Ex. 3. Executive Ethics Board Advisory Opinion 97-06; Ex. 4. Facilitated meeting notes dated October 2, 10, 13, 27, 2000; AR 003061 DECLARATIONOFRAYHELLWIGIN 1 ATrORNEYGENERALOFWASHINGTON Ecology Division SUPPORTOFMOTIONTOSTRIKE PoBox40117 Olympia, WA 98504-0117 ORIGINAL Ex. 5. Letter from Port of Seattle dated October 25, 2000 regarding renewal of Joint Aquatic Resource Permit Application. Ex. 6. Memo from Tom Luster regarding list of issues to be resolved for SeaTac review, dated October 9, 2000; Ex. 7. Email from Tom Luster regarding SeaTac, dated October 18, 200, with attached issues list. declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this I _ day of March, 2002. THOMAS J. YOUNG AR 003062 DECLARATION OF RAY HELLWIG IN 2 ATTORNEYGENERALOFWASHINGTON Ecology Division SUPPORT OF MOTION TO STRIKE POBox40117 Olympia, WA 98504-0117 FAX (360) 586-6760 Page98 Page 100 leasta portion of that. I or certification? Near the top of that page, the natural 2 A. Probably several dozen hours overall. That resourcemitigation plan and appendices, the wetland 3 seems to be about right. functional assessment, possibly some others on this 4 Q. Did you keep any record of the amount of time page based on not that I remember the title exactly, 5 you've spent doing that? but I know I reviewed…

THE PORT OF SEATTLE, ) ECOLOGY MANAGERS AND CR 30(b)(6) ) DESIGNATED WITNESSES Respondents. ) INTRODUCTION ACC moves the Board for correction, clarification, and/or partial reconsideration of portions of its Order Publishing Certain Portions of Depositions of Ecology Managers and CR 30(b)(6) Designated Witnesses ("Order Publishing Depositions"), as detailed below. ACC is bringing this motion because recently, in the course of reviewing hearing transcripts received over the past several days and preparing draft Findings and Conclusions, it has become21 apparent that there are discrepancies among the Order Publishing Depositions, the redacted depositions transmitted by the Board with the Order, and the hearing testimony itself. These fall into three categories: AR 001015 (1) Instances where the Order Publishing Depositions lists testimony as admitted or HELSELL ACC'S MOTION FOR PARTIAL 0RIGINAL FAELh'TeTdLi'Eilit¢IMuAh'N 1500PUGETSOUND PLAZA R0. BOX 21846 RECONSIDERATION OF ORDER SEATTLE,WA 98111-3846 PH:(206)292-1144 PUBLISHING DEPOSITIONS - 1 excluded, but the Board-redacted depositions indicate the opposite; (2) Instances where, perhaps inadvertently, excerpts were carved out and excluded from larger portions of a discussion -- which is admitted -- thereby creating a misleading impression of the witness' testimony and an incomplete record; and (3) Instances where topics excluded from the depositions on relevance grounds are addressed in the actual hearing transcripts (just recently received), rendering the excerpts relevant to :he Board's consideration. ACC is not asking for correction of all such instances, but only those which are most ;ignificant. A. Deposition of Thomas Fitzsimmons 1. Page 39, lines 3-10: The Order excluded page 36,…

(Ecology) in the above-referenced matter. I have been assigned to provide legal support to Ecology on the Port of Seattle's (Port) request for a Clean Water Act § 401 Certification since 1998 and became lead counsel for the matter in 1999. 2. I have no recollection of receiving any communication from Tom Luster regarding his intention to submit sworn testimony to the Board in this appeal. I have reviewed my files and telephone logs and can find no reference to any such communication. The only contact that I recall having with Mr. Luster since he left his position with Ecology was on DECLARATION OF JOAN MARCHIORO 1 ATTORNEYGENERALOFWASHINGTON EcologyDivision PO.Box 40117 Olympia,WA 98504-0117 ORI61NAL September 28, 2001, atter Mr. Luster had submitted a declaration in support of the ACC's Motion for Stay. On that date, Mr. Luster called me to discuss a deposition subpoena he received from the Port. The conversation was brief and related solely to the deposition subpoena. declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. h DATED this [(v- day of March, 2002. JOAN__ AR 003060

On March 4, Ecology filed a Motion in Limine tO preclude Thomas F. Luster from testifying as an expert witness on behalf of Appellant Airport Communities Coalition (ACC). In response, the ACC makes four arguments, each of which is without merit. Under the plain language of WAC 371-08-475(7), Ecology's Motion should be granted. ECOLOGY'S REPLY IN SUPPORT OF 1 ATTORNEYGENERALOFWASHINGTON EcologyDivision MOTIONIN LIMINEREGARDINGWAC VOBox40117 371-08-475(7) Olympia,WA98504-0117 FAX(360)586-6760 ORIGINAL AR 003052 II. AUTHORITY AND ARGUMENT A. Mr. Luster Took An Active Part In The Port's Application For A Clean Water Act Section 401 Certification ACC first contends that Mr. Luster "had no active part in the review of the Port's application." ACC's Opposition, p. 2. To make this assertion, ACC separates the Port's October 2000 application from the Port's previous applications regarding the Third Runway project. ACC then contends that Mr. Luster had no role in the October 2000 application review so that he does not fall within the terms of the Board's rule. The Board should reject this argument. First, the ACC's reading of the Board's rule is too narrow. Under the Board's rule, so long as Mr. Luster took "an active part in the investigation as a representative of the Department" he is precluded from testifying as an expert for ACC. There is no question here that Mr. Luster took an active part in the investigation of the Third Runway project application. Mr. Luster repeatedly relies on his role in the project as support for his opinions. In the…

Seattle's Response to ACC'S Motion for Correction, Clarification and Reconsideration of Board's Decision Publishing Portions of Depositions. DATED this 3_* day of May, 2002. CHRISTINE O. GREGOIRE Attomey General 9_.V_,._ JOAN M. MARCHIORO, WSBA # 19250 JEFF B. KRAY, WSBA # 22174 THOMAS J. YOUNG, WSBA # 17366 Assistant Attorneys General Attorneys for Respondent State of Washington Department of Ecology (360) 586-6770 AR 001013 ECOLOGY'S RESPONSE TO ACC'S 1 ATTORNEYGENERALOFWASHINGTON MOTION FOR CORRECTION, EcologyDivisionPO Box 40117 CLARIFICATION AND Olympia, WA 98504-0117 RECONSIDERATION OR]G{NAL FAX(360)586-6760 PCHB026001013

The Port of Seattle ("Port") submits the following response to ACC's motion to correct, clarify and reconsider the Board's earlier Order Publishing Certain Portions of Depositions of Ecology Managers and CR 30(b)(6) Designated Witnesses ("Board's Prior Order"). In those instances where ACC seeks to merely correct errors in the Board's Prior Order that have been revealed by the transcript, viz., Stockdale Item Nos. 2, 4 and 11, and Hellwig Item Nos. 3, 5, 6 and 7, i.e., where particular lines were left out or the portions of the transcript transmitted with the Order were incorrect, the Port does not oppose ACC's Motion. In all other instances, however, the Port strongly opposes ACC's motion for reconsideration of the Board's Prior Order. The motion should be denied as (1) untimely, (2) an unwarranted attempt to reargue issues that have already been ruled on by the Board, (3) an effort to insert evidence after the hearing that was available for ACC to elicit either through direct or cross-examination of witnesses who testified at the hearing, and (4) an attempt to proffer deposition testimony that presents a distorted picture of the evidence. PORT OF SEATTLE'S RESPONSE TO ACC'S MOTION FOR FOSTER PEPPER _ SHEFELMAN PLLC CORRECTION, CLARIFICATION AND RECONSIDERATION - 1 1111 THIRDAVENUE,SUITE3400 SEATTLE, WASHINGTON98101-3299 206-447-4400 ORIGINAL AR 001008 1. Motions for Reconsideration Must Be Brought Within 10 Days of the Entry of the Original Order. The Board's rule on reconsideration (WAC 371-08-550) only deals with the reconsideration of final orders. Because ACC is…

Cleanup Program. I served as site manager for the Site Cleanup and Underground Storage Tank Unit managing several Navy cleanup sites and the Asarco site in Tacoma. With respect to site cleanup activities, I have a total of 5.5 years of experience (4.5 years with the Ecology Central Regional Office Toxics Cleanup Program (TCP) and one year with the Site Cleanup and Underground Storage Tank Unit). I am a registered professional engineer in the State of Washington. Attachment A is a copy of my resume. 2. Regarding the Port of Seattle's (Port) application for a Clean Water Act § 401 Certification (401 Certification) for its proposed construction at the Sea-Tat International Airport, I was asked to develop fill criteria for the Third Runway project that are "technically consistent with Toxics Program policy and guidance and do not contradict or present a conflict with the Model Toxics Control Act." I addressed the potential impact of the fill materials to water quality indirectly by deriving fill criteria using procedures presented in the Model Toxics Control Act (MTCA). Specifically, I used the WAC 173-340-747 (4) "Fixed parameter three- phase partitioning model" to derive the soil values. The following is a summary of the work I completed for the Northwest Regional Office Water Quality Program (NWRO/WQ). 3. In June 2001, Kevin Fitzpatrick of the NWRO/WQ asked me (through Mr. Craig Thompson, the then Temporary Unit Supervisor for the Site Cleanup and Underground Storage Tank Unit) to develop fill criteria for Port's Third Runway fill…

underthe lawsof the stateof JUN - 4 ZOOZ Washingtonthat I maileda copy of this documentto all partiesor their ENVIRONMENTAL attorneysof recordbymailingthesame HEARINGS OFFICE to eachproperlyaddresse%landpostage prepaidonthe 5 t '_ dayof (,_u,,_- ,20 _',_ POLLUTION CONTROL HEARINGS BOARD FOR THE STATE OF WASHINGTON AIRPORT COMMUNITIES COALITION, ) PCHB No. 01-160 )

Unpublished Disposition u u JUN - 6 2002(Cite as: 165 F.3d 35, 1998 WL 833628 (9th Cir.)) < SeyCite Yellow Flag > ENVIRONMENTAI NOTICE: THIS IS AN UNPUBLISHED of this circuit except as provided by I_I__lGS OFFIC_ OPINION. Rule 36.3. (The Court's decision is referenced in a "Table **1 Petitioners ("the Cities") appeal the of Decisions Without Reported Opinions" Federal Aviation Administration's decision appearing in the Federal Reporter. Use FI granting final approval of the Master Plan CTA9 Rule 36-3 for rules regarding the development project adopted by the Port of citation of unpublished opinions.) Seattle for the expansion of the Seattle- Tacoma International Airport CSea-Tac"). We United States Court of Appeals, affirm. Ninth Circuit. The Cities argue that the Administrator's decision improperly relied on a "no growth" CITY OF NORMANDY PARK; City of Des demand model and a limited prediction Moines; City of Burien; City of Federal forecast thereby failing to accurately assess Way; the project's environmental impacts and City of Tukwila; Highline School District, necessary mitigation measures. Under the No. 401, individually and Airport and Airway Improvement Act collectively as the Airport Communities CAAIA"), 49 U.S.C. § 47106(c)(1)(C), an Coalition; Petitioners, Administrator may approve an airport v. development project that is found to have PORT OF SEATTLE, a Washington significant environmental effects "only after municipal corporation, Intervenor- finding that ... every reasonable step has been Respondent, taken to minimize the adverse effects." Here, v. the Administrator's lengthy decision indicates FEDERAL AVIATION a careful review of the project's potential…