TagPollution Control Hearings Board(1507)

In its reply materials submitted in support of its motion for stay, the Airport Communities Coalition (ACC) relies in part on a document containing attorney-client privileged communications. This document was inadvertently disclosed by Ecology to the ACC pursuant to a public disclosure request. Because the attorney-client communications were disclosed inadvertently and unintentionally, ACC should be required to return the document and all references to the attorney-client privileged information should be stricken from the record. AR 006468 II. STATEMENT OF FACTS The facts relevant to this motion are stated in the accompanying Declaration of Ray Hellwig. Briefly, Ecology periodically receives public disclosure requests from the ACC for MOTION TO STRIKE 1 ATTORNEYGENERALOFWASHINGTON Ecology Division ATTORNEY-CLIENT PRIVILEGED eo Box 401 | 7 0RIGINAL documents relating to the Sea-Tac International Airport (STIA) expansion project. Ecology's practice is to review documents responsive to the ACC's requests for non-disclosable material and withhold such material from disclosure. Dec. of Hellwig, ¶ 3. Particularly, Ecology does not disclose attorney-client privileged information. Id In the present case, Ecology inadvertently disclosed a document containing attorney- client privileged communications to the ACC. Ecology intended to redact the attorney-client privileged information from the document prior to disclosure. Dec. ofHellwig ¶ 4. Ecology's attorneys did in fact redact the information from one copy of the document but Ecology inadvertently disclosed another copy of the document without the information redacted. Dec. of Hellwig, ¶ 5. Because the attorney-client privileged information was inadvertently disclosed, it should be stricken from the record and ACC should…

v. ) STRAND IN SUPPORT OF ACC'S ) SUR-REPLY ON MOTION FOR STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No.9 THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, Issued August 10, 2001, Respondents. ) Reissued September 21,2001, under No. ) 1996-4-02325 (Amended- 1)) Dr. John Strand declares as follows: 1. I declare the following from personal knowledge and am competent to testify thereto before the Board if necessary. 2. My qualifications and previous review of the issues in this matter are set out in the two declarations which I have already submitted in support of ACC's Motion for Stay in this matter. GeneralComments: 3. The Port's Sur-Reply and the Declaration ofC. Linn Gould ignore the evidence that contamination already exists on site. There are no adequate safeguards in the Amended 401 Certification to stop the Port from again accepting contaminated soils. The Declaration of DECLARATION OF DR. JOHN STRAND IN HELSELL FETTERMAN LLP RachaelPaschalOsborn SUPPORT OF ACC'S SUR-REPLY ON MOTION 150oPugetSoundPlaza Attorneyat Law FOR STAY - 1 1325 Fourth Avenue 2421 West Mission Avenue ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 AN 006461 Elizabeth Clark submitted with the Port's response materials also unjustifiably downplays the contamination in soils the Port has already accepted, e.g., from the Hamm Creek and First Avenue Bridge sites. See First Strand Decl. at ¶¶ 6, 31 ; Second Strand Decl. at ¶¶ 23-25, 28; Ms. Clark does not even begin to address the point we make…

v. ) WILLING IN SUPPORT OF ACC'S ) SUR-REPLY ON MOTION FOR STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No.9 THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, Issued August 10, 2001, Respondents. ) Reissued September 21,2001, under No. ) 1996-4-02325 (Amended-I)) Dr. Peter Willing declares as follows: 1. I declare the following from personal knowledge and am competent to testify thereto before the Board if necessary. 2. My qualifications and previous review of the issues in this matter are set out in the two declarations which I have already submitted in support of ACC's Motion for Stay in this matter. 3. Paul Fendt's Sur-reply Declaration (at 5) claims that the Port has committed to retrofitting the existing stormwater system at SeaTac for water quality best management practices "to the extent practicable." The Port has not defined this standard, which leaves it up for future definition at the Port's convenience..The word "maximum" is left out in this instance, but DECLARATION OF DR. PETER WILLING IN HELSELL FETTERMAN LLP RachaelPaschalOsborn SUPPORT OF ACC'S SUR-REPLY ON MOTION 1500pugetSound Plaza Attorneyat Law FOR STAY - 1 1325 Fourth Avenue 2421 West Mission Avenue ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 AN 006459 1_-_9-2e) 1 9:13AM FROM WATER RESOURCES CONS 368676184@ P. 2 10-1_-Z091 1O:O0_ Fr_-_L_LL FETI_.+.J/ ZSZ4T'-15| P.OO3/OH F-OZS included ctsewher_ (Comprehensive Smn'nwater Planpp. 7-9, included as FendtExhibit'B). z "Exten: pracdcab£e"is not mc same rhmg as AKART, nor doe, it go beyond the bare…

v. ) PATRICK LUCIA IN SUPPORT OF ) ACC'S MOTION FOR STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No. THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, issued August 10, 2001, Respondents. ) Reissued September 21, 2001, under No. ) 1996-4-02325 (Amended- 1)) Dr. Patrick Lucia declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. Paragraphs 2 - 5 of my first declaration in support of stay describes my qualifications and familiarity with the proposed Third Runway and related master plan improvements at Sea-Tac Airport. 3. I have reviewed the Port's and Ecology's declarations, exhibits and sur-reply memoranda. 4. Review of the issues raised leads to a clear conclusion that the Department of Ecology does not have reasonable assurance that the fill placed to construct the embankment will meet the environmental criteria and subsequently that the water infiltrating through the embankment will not transport hazardous substances through the drainage layer and into sensitive areas below the embankment. DECLARATION OF DR. PATRICK LUCIA IN HELSELL FETTERMAN LLP RachaelPaschalOsborn SUPPORT OF ACC'S MOTION FOR STAY - 1 15o0PugetSoundPlaza Attorneyat Law 1325 Fourth Avenue 2421 West Mission Avenue ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 AR 006454 5. The second declaration of C. Lin Gould states that the MTCA method A cleanup level for arsenic (20 milligrams per kilogram) "represents 'natural background' as described in WAC 173-340- 900…

v. ) SUR-REPLY ON MOTION FOR STAY ) STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA THE PORT OF SEATTLE, ) concurrency statement, issued August ) 10, 2001, Reissued September 21, Respondents. ) 2001, under No. 1996-4-02325 ) (Amended-i)) ) Dyanne Sheldon declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. Per the responses in the second declarations of Ecology staff (Stockdale) and Port consultants (Kelley), it is claimed that the need for pre-construction19 groundwater monitoring is being met and will provide sufficient detail to assure protection of water quality. Their conclusions are based on the Performance Standards contained within the NRMP and the conditions of the 401 Certification (Stockdale ¶ 3,4; Kelley ¶3,6,7,8). However, the Performance Standards of the NRMP, HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law ,_ 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF DYANNE SHELDON IN Seattle. WA 98101-2509 Spokane, WA 99201 SUPPORT OF ACC'S SUR-REPLY - 1 ORIGINAL ,. 006447 as summarized by Kelley (¶10) provide virtually no quantifiable standard by which to measure whether groundwater parameters have been met. The Performance standard states, "Wetland areas with organic soils...will have soils saturated in the upper part (emphasis added) to mid-June in years of normal (emphasis added, see ¶ 3, below) rainfall." For the wetlands that have mineral soils, the Performance standard is6 stated as,…

v. ) SUR-REPLY ON MOTION FOR STAY ) STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA THE PORT OF SEATTLE, ) concurrency statement, issued August ) 10, 2001, Reissued September 21, Respondents. ) 2001, under No. 1996-4-02325 (Amended-i)) Amanda Azous declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. I am responding to the sur-replies submitted by the Department of17 Ecology and the Port of Seattle and the second declarations of Erik Stockdale and Dr. James Kelley. 3. The Port and Ecology do not address the underlying reasons why the Port's hydrologic monitoring of wetlands is inadequate and ignore the importance of properly evaluating what is accepted by most wetland scientists as the major driver of wetland ecosystem processes, hydrology. The result is flawed performance24 DECLARATION OF AMANDA AZOUS IN HELSELL FETTERMAN LLP Rachael Paschal Osborn SUPPORT OF SUR-REPLYON ACC'S MOTION 1500PugetSoundPlaza Attorneyat Law FOR STAY - 1 1325 Fourth Avenue 2421 West Mission Avenue O_2#_#_JAL.,. _ , Seattle, WA98101-2509 Spokane, WA99201 AR 006437 standards for ensuring adequate seepage flows to remaining wetlands that will result in reduced functioning of remaining wetland areas. 4. Two wetlands, 18 and 37, are in immediate danger of irrevocable alteration from filling of their tributary wetlands and streams due to the Port's near4 term fill plans. Wetlands to be filled in the near term include part of Wetland 18, and…

v. ) OF ITS MOTION FOR A STAY ) DEPARTMENT OF ECOLOGY and ) Section 401 Certification No.7 THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, issued August 10, 2001, Respondents. ) Reissued September 21, 2001, under No. ) 1996-4-02325 (Amended- 1)) ) )

FOR THE STATE OF WASHINGTON HEA._.INcJs c-'_r;_(. AIRPORT COMMUNITIES COALITION, ) ) No. 01-133 Appellant, ) No. 01-160 )

1. Does the Certification fail to provide reasonable assurance that the project will not violate state13 water quality standards in affected surface waters, pursuant to, inter alia, 33 U.S.C. § 1341; 40 CFR § 121.2; RCW Ch. 90.48.080; and WAC Ch. 173-201A? 2. Does the Certification fail to provide reasonable assurance of compliance with water quality standards due to Ecology's failure to require complete data, reports, and plans?16 3. Does the Certification fail to provide reasonable assurance of compliance with water quality standards because the certification substitutes future monitoring for current assurance that water Ia quality standards will not be violated? 4. Does the Certification fail to provide reasonable assurance of compliance with water quality standards because the Section 401/404 application and associated public notice lacked20 sufficient information to generate meaningful comments regarding essential elements of the Third Runway Proj ect? AR 006415 Stream Flow/Water Riphts Issues 5. Does the Certification fail to provide reasonable assurance that the low flow impacts of the proposed project will be permanently and adequately compensated in violation of, inter alia, 33 U.S.C. § 1341; 40 CFR § 121.2; RCW Ch. 43.21C; RCW Ch. 90.03; and RCW Ch. 90.48? ACC'S PRELIMINARY LIST OF LEGAL HELSELL FETTERMAN LLP Rachael Paschal Osborn ._-_IR_IIF_, WITNESSES AND EXHIBITS- 1 15o0PugetSound Plaza AttorneyatLaw1325Fourth Avenue 2421 West Mission Ave. ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 6. Does the Certification fail to provide reasonable assurance that flow impacts will be appropriately mitigated because the low flow analysis (to date) rests on…

v. ) 1N SUPPORT OF ACC'S OPPOSITION ) TO ECOLOGY'S MOTION TO STRIKE STATE OF WASHINGTON, ) ATTORNEY-CLIENT PRIVILEGED DEPARTMENT OF ECOLOGY; and ) DOCUMENTS9 THE PORT OF SEATTLE, ) lo ) (Section 401 Certification No. Respondents. ) 1996-4-02325 and CZMA concurrency ) statement, Issued August 10, 2001, Reissued September 21, 2001, under No. 1996-4-02325 (Amended- 1)) Andrea Grad declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. I am a paralegal with the law firm of Helsell Fetterman LLP, which represents the Airport Communities Coalition in this matter.19 3. For the last year or more, I have submitted regular public disclosure requests to the Department of Ecology for documents relating to the Port of Seattle's third runway applications. As part of this task, I have communicated and pursued this task regularly by email DECLARATION OF ANDREA GRAD IN HELSELL FETTERMAN LLP Rachael Paschal Osborn SUPPORT OF ACC'S OPPOSITION TO 1500PugetSoundPlaza Attorneyat Law ECOLOGY'S MOTION TO STRIKE - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL ooo.,o with Ann Kenny and Sally Perkins of Ecology's Northwest Regional Office, per Ecology instructions as to how to submit requests. 4. Over the past year or more, on several occasions, responses to our requests indicated that documents had been withheld on various bases. Some of those documents were fi produced partially in redacted form, while others were withheld in their…