TagPollution Control Hearings Board(1507)

Having considered the pleadings and files in this matter, the Board finds that Port of Seattle has shown good cause for shortening the time in which to consider the Port of Seattle's Motion to Strike Overlength Brief. Accordingly, the Port of Seattle's Motion to Shorten Time should be and hereby is GRANTED. DATED this __ day of October, 2001. KALEEN COTTINGHAM, PRESIDING //// HH ORIGINAL AR 006527 IIII ORDER SHORTENING TIME - 1 FOSTER PEPPER _d SHEFELMANPLLC 1111 THIRDAVENUE, SUITE3400 SEATTLE, WASHINGTON 98101-3299 5o28i511.ol 206-447-4400 Presented by: PORT OF SEATTLE Linda J._gtrout, General Counsel, WSBA No. 9422 Traci M. Goodwin, Senior Port Counsel, WSBA No. 14974 FOSTER PEPPER & SHEFELMAN PLLC Roger N,)Pearce,'WSBA No. 21113 Steven (3. Jones, WSBA No. 19334 MARTEN & BROWN LLP j._Ma_ing__ _IJay 13579 Gillis E. Reavis, WSBA No. 21451 ; AN 006528 ORDER SHORTENING TIME - 2 FOSTER PEPPER _._ SHEFELMAN PLLC 1111 THIRD AVENUE, SU1TE3400 SEATTLE, WASHINGTON98101-3299 206-447-4400 502815lL01 PCHB240006527 PCHB240006528

that the Board may consider of Port of Seattle's Motion to Strike Overlength Brief prior to the October 15, 2001 hearing on appellant's motion for stay. Ordinarily, motions before the Pollution Control Hearings Board must be filed ten days prior to consideration by the Board. On October 8, 2001, appellant Airport Communities Coalition filed an overlength response memorandum in direct violation of the Board's prior orders, and the parties' agreement, in this matter. The Port has moved to strike the overlength portions of ACC's reply memorandum. If the motion to strike were heard on the Board's regular schedule, the board will not reach the merits of the motion to strike until after the hearing has already taken place. Therefore, the Port of Seattle respectfully requests that the Board shorten time in which to hear the accompanying Port of Seattle's Motion to Strike Overlength Brief. AR 006525 ORIGINAL MOTION TO SHORTEN TIME - 1 FOSTER PEPPER _d SHEFELMAN PLLC 1111 TrilaO AVENUE, SUITE3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 5028151001 Respectfully submitted this 1sT day of October 2001. PORT OF SEATTLE __,_ ___,9_, _ 1Linda J._trout, General Counse, WSBA No. 9422 Traci M. Goodwin, Senior Port Counsel, WSBA No. 14974 FOSTER PEPPER & SHEFELMAN PLLC Roger A."-Pearce, WSBA No. 21113 Steven G. Jones, WSBA No. 19334 MARTEN & BROWN LLP JayJ. Mhflning, WSBA No. 13579 Gillis E. Reavis, WSBA No. 21451 AR 006526 MOTION TO SHORTEN TIME - 2 FOSTER PEPPER _.d SHEFELMAN PLLC 1111 THIRD AVENUE, SUITE 3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400…

None of the new issues regarding the amended §401 Certification supports ACC's stay request. 1. The Requirement of Public Notice, Public Comment or Public Hearing Applies to a New Application, Not an Amendment of a §401 Certification. ACC claims that the §401 Certification was amended without required public notice and involvement. However, controlling regulations do not require a new public notice, public comment, or public hearing prior to amending a §401 Certification. The regulation cited by ACC only requires public notice and hearing "whenever an application for certification required by section 401 of FWPCA is filed with [Ecology]." WAC § 173-225-030(emphasis added).l Multiple public hearings and opportunities to comment have been provided during Ecology's process. No regulation requires a new public notice, hearing and opportunity to comment when an existing §401 certification is amended. 2. The Amended §401 Certification Complies With 40 CFR §121.2. ACC asserts that the amended §401 Certification fails to comply with 40 CFR § 121 because it lacks a statement that the activity for which the §401 Certification was required will not violate applicable water quality standards. See 40 CFR § 121.2(a)(3). This is a misstatement of the factual record. As with the original §401 Certification, the amended §401 Certification consists of a letter and an order containing the §401 Certification conditions. That letter clearly states that the projects at STIA will comply with the applicable sections of the Clean Water Act. 2 3. ACC Continues to Incorrectly Claim That the Existing Airport Will Not Be…

v. ) ORDER ON MOTION TO STRIKE ) STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) The Department of Ecology (Ecology) has moved to strike certain references to a document relied on in the Appellant Airport Communities Coalition (ACC) motion for stay and supportive reply materials. The basis of the request is that the document is attorney-client privileged and was inadvertently disclosed. Ray Hellwig, Ecology's NW Regional Director, prepared the document in question as a briefing paper for a senior management team meeting in April 2001. The document was intended to have certain paragraphs redacted before disclosure, but instead an un-redacted copy was inserted into the packet of documents disclosed as part of fulfilling a public disclosure request. Under the Public Disclosure Act, Chapter 42.17 RCW, an agency may exempt records from disclosure if those records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts, including attorney-client privileged communications. RCW 42.17.310(1)(j). Although the privilege can be waived voluntarily, it is not waived if the mistaken disclosure of the privileged information was "sufficiently involuntary PCHB 01-160 1 ORDER ON ECOLOGY'S MOTION TO STRIKE AN 006518 and inadvertent as to be inconsistent with a theory of waiver." United States v. Zolin, 809 F.2d 1141, 1415, 1417 (9th Cir. 1987). Although the Washington Courts have not addressed the question of whether the attomey-client privilege is waived by an inadvertent disclosure of the privileged…

v. ) ORDER ON MOTION TO FILE ) OVERLENGTH BRIEFS STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) The Airport Communities Coalition has filed a motion requesting permission to file and overlength brief. Due to the date on which the motion was filed (simultaneous with the filing of the lengthy reply) and the time remaining before the heating on this matter, the Board feels constrained in the remedy it can impose for the Appellant's failure to comply with the earlier order and stipulation. The excess documentation most likely precludes a speedy response by the Board on the motion to stay the effectiveness of the Section 401 permit. For these reasons, the Board reluctantly grants Appellant's motion to file an overlength reply brief. ORDER Appellant's motion to permit the filing of an overlength brief is reluctantly granted. SO ORDERED this ""[_ day of _)0_¢" ,2001. POLLUTION CONTROL HEARING S BOARD KALEEN COTTINGHAM, Presiding PCHB 01-160 1 ORDER ON ECOLOGY'S MOTION TO STRIKE AR 006517

la-gl-lO01 IZ'._pm F_H-t_LIELL RrrT_wAIt _402_Z,tT.._lf p.@@_i/00g F-_@ oct - s zoal • ENV_.KO..r, MENFAL HEARING8 OF :iCE1 POLLUTIONCONTROLKEARINOSBOARD z FOR _ STATS OF W_GToN AIBgORTCOMMUNIT_S COALITION,) 4. ) _CHB'No.01-133 ApPcU_ ) PCHBNo,01-150 @ ) PCHB No.01-150 v, ) ) STIFUIA_ONAND ORDF.2, DF.PAKTMWNT OF.ECOI-OOY and ) T}_ I_ORTOY SF.ATTLE, ) (CLEAN WATI_ ACT SECT!ON 401 @ ) C__RTII_CATIONS#1996-4-02325, Rcspoud_s. ) _1996-4-023_(_ED- I)) s )m TI_ POET OF SEATT£_ ) ) Appellanc, ) Iz ) v. } ia ) STATS OF WAS_TGTON, ) DEFAR_ O1:ECOLOGY, ) I_ ) Resl_on_eam. ) IS __ )p. L Is On $_;r__-ber20,2001,_c PoLlutionCommI HcadngsBoard("Board")_ an&@_-cmcn_ IS m:z1Ord=ReB=clss[ono£401C=dS_fionMPCKBCas=Nos.0!-133_-dOi-lS0(_c_A_ern_nt TheD_arm_entof_col_,_u_/y r_scS_l__,,_q_tcznb=21.2001,TheSec_n 401 Cee-_c._onwhich_ _ssu_byEcologytrader_cologyO_la_Numb=-1996-4-02325onAu_u._I0. 2001,.__aLssuedanazm._de-_1401Ca,6_cm_onttmlcrO_ Number1996.4-02325(Am=z_d¢d-l). On OctoberI, 2001,u%eAir_rtCoramun_desCoalitionfl_i _t _=,v=lp= theAgn:_©n__,,_I STIImJLATIONAND OKI__-Ko t NF/_S[/,F_rrBRMAN LiP P._Ix_i Pasc2gqlOsbom I._00Puget $o_md Pl&za Atmra_-y'_ I.a_ I}2.,_Tag_, Av©nUe F..4,_IWeS"_Mimion AY=. ORIGINXV,,,o, .ooAR 006513 00T-05-2001FRI03:55 PH2 F_ NO,3£n q86 6759 P. 03/05 - ---_ _ -- ........... ,86 447 9788 t_O03 la-0_-ZQUllZ:_p= _r_t-_LSELL_TTE!_.P.AN +20G_026Z4 T-015 P.004_0S F-?_8 Ordera_appealof_ amaz,_tecl_I __ _ _e A_;eemm__ C_'c_.z,_ _al aq_c_l_ az_J_chmcn;.s_cdin(:as=No.01- 133,_ pl,--zzd._z_!ps_ s'u4:xF,:_'dz_g¢_¢=ment.s_led inCas:No. 01-I_0,axu:[a_lple-ad_a:z__ s,pporda_ _umcz_ fil_dbyl_a._=ssuppor_ oropposi=_themodonfor_.y brov_ byTheAL_'_s Commu=it_sCa_ti,,n uaderFCKBNo.01-1_3dm]/betrmzsf=_=doverm PC_B No. 01-]60__e nmv xpl_almmb_ _ _hcBva_lh_ a._gn_l_oACC'sO_obcrI,2001,_Fgeal- BaseAon_h_f_r_o_n8_ _a p_ m _ A_ md Oral,thepartiesh_r_by jointlymCa_ r_=Boc.-d_o4{¢,_;_PCKBCaseN_s,01-150md 01-133, to SO STIPULATe: YORTOFSEATTLE • _ & &trout,_ Co_e/. ws_ tVo._ _4 Trod M. Goodwia, $_l=ozt C=uase/, WSBA No. 14974 , RogerA. la4s_=,WSBANo.21113 _e StzveaG, .1'o_,WSBANo. 19334 le MARTEN BROWN ]NC _ay ]. M_ WSE_A,'No, 13579 zt Gi]li_E, _vis, WSBA No, 214_ ,%mameys for Fog of Se'_'fle STIPULA'I'/ONANDORJ_F_._- 2 HSLSELLF_WF.._MANLLP RachelP_ C_bam !500Pu_.tSe,,_dPlm…

Selenium at .75 mg/kg, and Method 7741 gS{_ilg_1ng?i_L f_[ gitverat. _k_;_' d<'_e_or_lru;ittttn,3, _ _,L_i--'ft.l['_,l.i'_.,i'%jO _-,)k. l" t_.. t. _{ 7,ik li,Tti'q(i S.O _:Fi>(71i:i Table II, at p.7; Ex. B. to Lucia Decl. The Port generally alleges that "scientific calculations" utilizing a back-calculating approach derive safe soil contaminant levels for the protection of water quality. Port Brief at 20. However, the analysis, calculations and tables of DOE's own expert, Chung Yee, show that for some contaminants6 the 3-phase "back-calculating" model for deriving soil contamination levels for the protection of s_irfacc and groand water would require contaminant levels much lower {ban those allowed by _he Amended Certification. Eglick Decl., Ex. J (Email from Ecology's Chung Yee). For example, Mr. Yee calculated that in order to protect groundwater only 5.79 mg/kg of Antimony should be allowed, yet the Certification allows approximately 3 times that much Antimony (16 mg/kg). Id. Similarly, Mr. Yee calculated that only 2.92 mg/kg of Arsenic should be allowed in order to protect groundwater. Id. Thus, at maximum, Ecology should have set the Arsenic level at natural background (7mg/kg) rather14 _5 then the 20 mg/kg allowed in the Certification. That the revised Certification sets the level of acceptable contamination too high for purposes of ensuring water quality and protecting plants and animals is clear from Ecology's own Toxics Cleanup Program senior environmental engineer, Peter Kmet, quoted by ACC in our opening brief. See Memo in Support of Motion for Stay at 19 and Exs. G and [-iof First Eglick Deci.…

Pursuant to the scheduling letter issued by the Board on August 28, 2001 in Case No. 01-133, respondent Port of Seattle provides the following list of potential issues witnesses and exhibits. With respect to the proposed issues, the Port will review the list of proposed issues from appellant Airport Communities Coalition before determining whether all issues have been covered below: . I. ISSUES A. General Issues 1. Whether appellant has proven that there is not reasonable assurance that the Port of Seattle's projects at Seattle.-Tacoma International Airport ("STIA") reviewed in Ecology's §401 Certification will comply with water quality standards and other applicable standards under §401 of the Federal Water Pollution Control Act. 2. Whether it was necessary to identify and spc_fy performance standards for structures requiring a dam safety permit prior to issuance of the §401 Certification. PRELIMINARY ISSUE, WITNESS, AND EXHIBIT LIST - 1 FOSTER PEPPER _ SBXFELMAN PLLC 1111Tm_,DAvx_0F., SutTK3400 SEA_, Wasm_cToN 9S1al._2._ 206-447-4400 0RIGINAL 10110/01 15:42 FAX 206 447 9700 F P & S _004 3. Whether the Port's proposed projects arc consistent with the applicable terms of the Coastal Zone Management Act and Washington's Coastal Zone Management Program. 4. Whether Ecology complied with the State Environmental Policy Act ("SEPA") when reviewing the Port's projects for compliance with applicable standards under §401. 5. Whether the Port complied with the applicable requirements of SEPA. 6. Whether the Board has jurisdiction to review the Port's compliance with SEPA. 7. Whether the §40I Certification conforms to applicable law when it…

attorneys, Joan M. Marchioro and Thomas Young, Assistant Attorneys General, submit the following statement of issues, preliminary witness and exhibit list, and proposed schedule regarding Appellant's Motion for Stay: I. ISSUE Whether, when issuing a Clean Water Act Section 401 Certification for the Port of Seattle's Master Plan Update Improvements, Ecology had reasonable assurance that water quality standards would be met by the proposed project? II. WITNESSES 1. Ann Kenny, Department of Ecology, Northwest Regional Office;

Northwest Regional Office. I have personal knowledge of the matters contained herein and I am competent to testify thereto. 2. We periodically receive public disclosure requests from the Airport Communities Coalition (ACC) for documents pertaining to the Port of Seattle's proposal to expand Seattle-Tacoma International Airport (STIA). In response to these requests, I gather all documents that I have responsive to the requests and review them to determine if there is any material that may be withheld from disclosure under the Public Disclosure Act. 3. If I identify documents that are non-disclosable, it is my practice to withhold those from disclosure, or redact non-disclosable portions, and to identify the documents as ¢_ DECLARATION OF RAY HELLWIG IN 1 ATTORNEYGENERALOFWASHINGTON Ecology Division SUPPORT OF MOTION TO STRIKE POBox40117 Olympia, WA 98504-0117 FAX (360) 586-6760 < 10/09/01 14:17 FAX 42S 649 7098 DEPT OF ECOLOGY 425 649 7898 _003 0CT-09-200I TIE 02:18 PH2 F_X NO, 3fi0 i 8758 P, 03 wid_held from disclosure on a log that we maintain of such documents. I certify that attached hereto as Ex]dbit ] is a true and co:rect copy of our log of documcms wifl_held from diselosure. W_ typically withhold from di_losute all documents that are attorney-client privileged. 4, In this case, I inadvertently disclosed to the ACC pursuant to a public disclosure request at least one document eontainhag attorney-client privileged material. This document, which I understand has been quoted by ACC in its pleadings, is a briefing paper I g prepared for a senior…