TagPollution Control Hearings Board(1507)

In its opening brief in support of a stay, ACC set out the law requiring that the Port obtain a water right before Ecology could claim reasonable assurance on the elements of the Port's proposal calling for appropriation of stormwater in perpetuity to address low flow impacts. In their responses, Ecology and the Port went on the attack, snidely labeling ACC's argument as "creative" (Ecy. Br. at 12) and "radical" (Port Br. at 13). At the same time, the Port further demanded that the Board give "great deference" to Ecology's expertise, in assessing Ecology's claim of reasonable assurance, l Ecology's Motion to Strike was received late on October 9, 2001. The Board issued an order granting Ecology's Motion on October 10which ACC counsel received by mail on October 11. Per WAC 371-08-450(4)(a), a response from ACC was not due until "ten days from the date the motion is received." Because the deadline for ACC's Sur-rebuttal on the stay motion as well as the deadline for submission of a list of proposed legal issues, witnesses and exhibits was October 10, ACC had just started to prepare a response when the Board's Order was received. To the extent necessary, then, ACC seeks rescission and reconsideration. ACC further requests per WAC 371-08-450 a hearing before the Board. ACC'S OPPOSITION TO ECOLOGY'S HELSELL FETTERMAN LLP Rachael Paschal Osborn MOTION TO STRIKE, MOTION TO RESCIND EX 1500PugetSoundPlaza Attorneyat Law PARTE ORDER AND FOR RECONSIDERATION 1325FourthAvenue 2421WestMissionAvemm AND REQUEST FOR HEARING - I Seattle, WA 98101-2509…

B 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)) I, Rachel Parks, an employee of Helsell Fetterman LLP, attorneys for the Airport Communities Coalition, certify that: am now, and at all times herein mentioned was, a resident of the State of Washington, and15 1B over the age of eighteen years. On October 12, 2001, I caused to be hand-delivered a true and correct copy of the following documents: 1. ACC's Opposition To Ecology's Motion To Strike Documents, Motion To Rescind Ex Parte Order And For Reconsideration By Full Board, And Request For Hearing Per WAC 371-08-450(3); and 2. Declaration of Andrea Grad in Support of ACC's Opposition to Ecology's Motion to Strike Attorney-Client Privileged Documents to: HELSELLFETTERMANLLP Rachael Paschal Osborn 1500Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West MissionAvenue CERTIFICATE OF SERVICE - 1 Seattle,WA98101-2509 Spokane,WA99201 ORIGINAL Joan M. Marchioro Linda J. Strout, General Counsel Thomas J. Young Traci M. Goodwin, Senior Port Assistant Attorneys General Counsel3 Ecology Division Port of Seattle 2425 Bristol Court SW, 2nd Floor 2711 Alaskan Way Olympia, WA 98502 Seattle, WA 98121 Roger A. Pearce Jay J. Manning Steven G. Jones Gillis E. Reavis Foster Pepper & Shefelman PLLC Marten & Brown LLP 1111 Third Avenue, Suite 3400 1191 Second Avenue, Suite 2200 Seattle, WA 98101 Seattle, WA 98101 certify under penalty of perjury under the laws of the State of Washington that the…

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 specify performance standards for structures requiring a dam safety permit priol_o_,_T l_lt_ _401 Certification. AR 006375 _klJ l'61iVll II sl_l, PRELIMINARY ISSUE, WITNESS, AND EXHIBIT LIST - 1 FOSTER PEPPER _dSHEFELMANPLLC 1111 "INIRD AVENUE, SUITE 3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 50280982.04 3. Whether the Port's proposed projects are 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 §401 Certification conforms to applicable law when it allows conditions in the §401 Certification to be…

v. ) OF ITS MOTION FOR A STAY ) DEPARTMENT OF ECOLOGY and ) (Section 401 Permit No. 1996-4-02325,7 THE PORT OF SEATTLE, ) Issued August 10, 2001) ) Respondents. ) ) "Many of the same problems that prompted Ecology to inform the Port it would have to deny the previous 401 application have still not been resolved. As a result, the August 2001 401 certification is not based upon reasonable assurance that water quality standards will be met, and, in fact, the decision is likely to result in water quality standards being violated."14 _5 Thomas R. Luster Declaration, ¶ 16, September 10, 2001. Helsell Fetterman LLP Kevin L. Stock, WSBA #14541 Peter J. Eglick, WSBA #8809 Michael P. Witek, WSBA #26598 1500Puget Sound Plaza 1325 Fourth Avenue Seattle, WA 98101-2509 (206) 292-1144 Rachael Paschal Osborn, WSBA 21618 2421 W. Mission Avenue Spokane, WA 99201 (509) 328-1087 Attorneys for Appellants25 ORIGINAL I. INTRODUCTION Appellant Airport Communities Coalition ("ACC"), composed of the Cities of Burien, Des Moines, Federal Way, Normandy Park and Tukwila and the Highline School District, respectfully requests that the Pollution Control Hearings Board (the "Board") enter an order pursuant to RCW

THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA ) concurrency statement, issued August Respondents. ) 10, 2001, Reissued September 21, 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. In my last declaration dated October 10th, 2001 I discussed that the data being collected by the Port would not provide any further substantiation to the ability to quantify adverse impacts or no effects in future conditions on the Third Runway. The additional datum provided for Erik Stockdale's declaration on October 15 is simply more well-log data provided by the Port. This additional data does not influence my previous conclusions that the Performance Standards offered by the Port and conditioned in Ecology's 401 Certification are HELSELL FETTERMAN LLP Rachae] Paschal Osl)orn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF DYANNE SHELDON ON Seattle, WA 98101-2509 Spokane, WA 99201 LATE ATTACHMENTS TO STOCKDALE DECLARATION - 1 ORIGINALAR 006371 not enforceable over the long-term. The 401 Conditions that Ecology has been able to get the Port to concede to, although well-intentioned, will not assure long-term protection of public resources or water quality standards.a 3. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 18th day of October, 2001, at Seattle, Washington.7 Dyanne Sheldon g:lu_ccpchbshe}don-decl- 101801 .doc HELSELL FETTERMAN…

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. In my last declaration dated October 10th,2001 1 pointed out that the17 one page Attachment to Erik Stockdale's declaration labeled as Attachment i was incorrectly identified as wetland water level data. I understand that in oral arguments before the Board, on October 15, Ecology submitted additional pages, which it acknowledged were not part of the original attachment. I have reviewed the additional pages submitted on October 15_"and have the following supplemental comments to my prior declarations of September 11 th and October.lff h. HEI,SELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF AMANDA AZOUS ON Seattle, WA 98101-2509 Spokane, WA 99201 LATE ATTACHMENTS TO STOCKDALE DECLARATION- 1 AR0063e8 ORIGINAL 3. The additional pages of the attachment are spreadsheets showing water levels in groundwater wells located in the airport's project area. The data provided in the attachment shows measurements of both surface and deep-water aquifers. A3 number of the monitoring wells, labeled in the attachment as the West Wall Area, are measuring water levels in aquifers that are producing wetlands and others are…

DECLARATIONS SUPPORTING ACC'S MOTION FOR STAY, PCHB . 01-160 li ./ UCT .1.8 2001 Issues ENV]RON_ ._fi,d, Fill Issues Stormwater/ Low Flow Wetlands _]:A_t_fuCl_g_F]:I,_q_Yr_d'_Experts Water Quality _' _-- Azous 1st Decl.: 1st Decl.: 31, 33 77 4-34 Reply Decl.: 3-56 Sur-R. Decl.: 3-20 Supp. Decl.: 1 2-8 Kmet 77 2, 3 (Ecology) Lucia 1st Decl.: 2 1st Decl.: 5-6, 27-40 77 5-26 2nd Decl: 2nd Decl.: 4-15 7 15 Luster Throughout (both of his declarations) Rozeboom 1st Decl.: 1st Decl.: 3-5, 17 77 4-21 Reply Decl.: Reply Decl.: ¶¶ 2-4, 6, 17, 77 2-5, 7-25 19-20, 22-23 Sheckler Reply Decl.:3 4-5 Sheldon 1st Decl.: 4 1st Decl.: 77 6-22 Sur-R. Decl.: Sur-R. Decl: 77 2-7 Supp. Decl. Strand 1st Decl.: 1st Decl.: 1st Decl.: 1st Decl.: 6, 28-31 7¶ 5-6, 9-27 77 6, 32-37 77 4, 7-8 Reply Decl.: Reply Decl.: 22-28 ¶¶ 4-21 Sur-R. Deck Sur-R. Decl.: ¶7 3-8 ¶ 4 AR 006363 1See Declaration of Amanda Azous on Late Attachments to Stockdale Declaration, dated October 18, 2001, submitted to the Board with this chart. 2Dr. Lucia submitted declarations in support of ACC's Reply (10/08/01) and ACC's Sur-Rebuttal (10/10/01). a Mr. Sheckler submitted only one declaration, in support of ACC's Reply, on October 8, 2001. 4Ms. Sheldon submitted declarations in support of ACC's Reply (10/08/01) and ACC's Sur-Rebuttal (10/10/01), and is also submitting today the Declaration of Dyanne Sheldon on Late Attachments to Stockdale Declaration, dated October 18, 2001. Page 10f3 ORIGINAL Issues Fill Issues Stormwater/ Low Flow Wetlands…

Stipulation And Agreed Order Of Dismissal filedjointly by the respondent Department of ORDER - ] FOSTER PEPPER _ SHEFELNAN PLLC ] ] ] ] TI]I]_ AYlgNUlg, SUITE 3400 S1--ATrL£ v WASFIIINCTON98101-3299 6 Z06-la7-4=g0 5f1277]St.oa AN 007775 o9.'19_01 16:43 FAX 206 447 9700 F P & S _004 Ecology ("Ecology") and appellant Port of Seattle ("Port"). The Board has considered the agreed order and the arguments of counsel in both this case and in the related case of Airport Communities Coalition v. Department of Ecology and Port of Seattle, PCt-IB No. 01-133. The Board finds as follows: On August 10, 2001, Ecology issued Ecology Or,der No_ 1996-4-02325, which included a water quality certification under Section 401 of the Federal Water Pollution Control Act and a concurrency statement under Section 307 of the Coastal Zone Management Act of 1972 (the "401 Certification"). On August 23, 2001, the Airport Communities Coalition ("ACC") filed a Notice Of Appeal of that 401 Certification with the Board. That appeal has been given PCHB Case No. 01-133_ On September 12, 2001, the ACC filed with the Board a Motion For Stay of the 401 Certification, along with an accompanying memorandum of authorities and supporting declarations. On September 10, 2001, the Port filed a Notice of Appeal of the 401 Certification with the Board. That appeal has been given PCHB Case No- 0!-150. At the same time as the Notice Of Appeal wasfiled in Case No. 01-I50, the Port and Ecology filed with the Board a Stipulation And…

Pursuant to the Board's direction, Ecology submits this reply to the Airport Communities Coalition's (ACC) opposition to Ecology's motion to strike attorney-client privileged documents. In its reply, ACC argues that (1) the attomey-client privileged advice is "at issue" in this case so that the privilege does not apply, and (2) the advice was withheld as deliberative and then intentionally released with other deliberative documents so that the privilege has been waived. Both of these arguments are meritless. II. AUTHORITY AND ARGUMENT AR 006357 A. The Attorney-Client Privileged Advice Is Not At Issue In This Case. ACC correctly notes that the attorney-client privilege is waived in circumstances where the privileged communications are placed "at issue" in a lawsuit. Pappas v. Holloway, 114 ECOLOGY'SREPLYTOACC'S 1 ATTORNEYGENERALOFWASHINGTON OPPOSITIONTOECOLOGY'SMOTION EcologyDivision PO Box 40117 TO STRIKE ATTORNEY-CLIENT Olympia, WA 98504-0117 PRIVILEGED DOCUMENTS ORIGINAL FAX (360) 586-6760 Wn.2d 198, 204, 788 P.2d 30 (1990). ACC neglects to point out, however, that this waiver occurs almost exclusively in malpractice cases where the attorney needs to rely on his advice to defend himself: There are several notable exceptions to the attorney-client privilege. One example of particular importance here occurs when an attorney is sued for malpractice by a client. Where it would be manifest injustice to allow the client to take advantage of the rule of privileges to the prejudice of the attorney, or when it would be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights, this court…

ACC submits the following supplemental authorities in reply on ACC's Motion for Reconsideration and in response to new arguments in Ecology's October 22 submission] A. The Statements at Issue Are by Their Very Nature Outside of the Realm of the Attorney- Client Privilege14 The definitive West two-volume treatise on attorney-client privilege, Paul R. Rice, Attorney- Client Privilege In the United States, West Group (1999), § 5:1 pp. 35-36, states: 2 The purpose of the attorney client privilege is to encourage more open and complete communications from the client to the attorney. [Citing Upjohn Co. v. United States, 449 U.S. 384, 389 (1981).] The privilege, therefore, provides a direct protection for confidential communications from the client to the attorney and a derivative protection for communications from the attorney to the client, to the extent that the responsive attorney communications reveal 2o the substance of protected client communications. [Emphasis added.] The statements made by the AAG, as set forth in the document and as Ecology now admits, were not factual, but on a "purely legal question." Ecology Br. at 2. Such statements are not protected 1ACC was not able to include these materials in its Motion for Reconsideration, which had to be rushed out in light of the Board's initial order on the Motion to Strike. 2This treatise was only available to ACC in the University of Washington law library and thus only recently obtained. Copies of the pages cited are attached. ACC'S STATEMENT OF SUPPLEMENTAL HELSELL FETTERMAN LLP Rachaet Paschal Osborn…