TagPollution Control Hearings Board(1507)

1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. I am an Environmental Specialist 4 employed by the Department of Ecology (Ecology) in the Northwest Regional Office (NWRO) Shorelands and Environmental Assistance Program's Permit Assistance Center. I have been employed by Ecology since 1990 and have held that position since August 1999. My duties include providing regulatory and technical assistance on large complex projects. I worked from February 1998 to July 1999 as the Northwest Regional Office's Federal Permit Coordinator reviewing projects requiring certification under § 401 of the Clean Water Act (401 Certification). Even after taking the Permit Assistance Center position, I continued to review and issue 401 Certifications. Over the DECLARATION OF ANN KENNY 1 ATTORNEYGENERALOFWASHINGTON Ecology Division PO Box 40117 Olympia, WA 98504-0117 ORIGINAL FAX(360)586-6760 last three and a half years, I have issued approximately 60 water quality certifications reviewing each for compliance with state aquatic resource protection laws, including state water quality standards, stormwater management provisions and wetland mitigation requirements. 3. I have a Bachelor of Arts degree in Political Science and a Masters Degree in Public Administration. I have worked in the field of environmental regulation and permitting since 1985. During the course of my employment by Ecology I have received specialized training in: wetland delineation, stream corridor management, salmon ecology, sediment management, shoreline processes and near-shore ecology, chemistry of hazardous materials, pesticide management, household hazardous waste management, enforcement training, pollution prevention,…

Pursuant to the Pre-Hearing Order dated October 30, 2001, as amended orally on November 1, 2001, the parties stipulate to the following statement of legal issues for the Board's consideration. The parties acknowledge that there are more than three issues in this case, but have only reached agreement on how three of the issues should be stated. If the parties can reach agreement on the statement of additional issues, the parties will notify the Board of the additional stipulated issues on or before November 15, 2001, when the parties may file objections to issues proposed separately by other parties. 2o Stipulated Issues: 1. Did Ecology violate applicable law pertaining to public and agency notice, hearing, comment and modification regarding the original 401/404 application and Amended Certification?22 ORIGINAL25 AR 006206 STIPULATION REGARDING PROPOSED HELSELL FETTERMAN LLP Rachael Paschal Osbom STATEMENT OF LEGAL ISSUES - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 2. Does Ecology's concurrence with the Port's consistency certification, issued pursuant to the2 Coastal Zone Management Act ("CZMA"), fail to comply with the requirements of the CZMA and Washington's approved Coastal Zone Management Plan? 3. Do the stated limitations on the temporal, operational, and geographic scope of the Certification, including its limitation to "Port 404 projects," violate the requirements of Section 401 of the Clean Water Act and applicable state water quality law? STIPULATED TO this 2nd day of November, 2001. __,___HELSELLFETTERM LLP Peter J._glick, WSBA…

Stipulated Statement of Legal Issues filed in this matter on today's date. This statement is issued14 without prejudice to proposed amendment based on issuance and admissibility of new documents related to the Section 401 Certification. 1. Does the Amended Section 401 Certification dated September 21,2001 ("Certification") fail to provide reasonable assurance that the Third Runway Project, Master Plan Update and related activities 1a ("Third Runway Project") will not violate Section 401 of the Clean Water Act and state water quality law? 2o 2. Does the Certification's reliance on data, reports, and plans that were not in being at the time of issuance violate the requirements of Section 401 of the Clean Water Act? 3. Does the 401 Certification's reliance on future monitoring violate the requirements of Section 401 of the Clean Water Act and state water quality law? 4. Will the low flow impacts of the Third Runway Project violate the requirements of Section 401 of the Clean Water Act and state water quality law? AR 006202 ACC'S SEPARATE STATEMENT HELSELL FETTERMAN LLP Rachael Paschal Osbom OF LEGAL ISSUES - 1 1500 Puget Sound Plaza Attorney at Law Seattle, WA 98101-2509 Spokane, WA 99201 5. Do the provisions of Condition I of the Certification and the low flow technical analysis and mitigation plan, as adopted into the Certification, violate the requirements of Section 401 of the Clean2 Water Act and state water quality law? 6. Does the Port's failure to obtain a water right to implement the low flow mitigation…

attorneys, Joan M. Marchioro and Thomas Young, Assistant Attorneys General, submit the following revised preliminary witness and exhibit list, and proposed schedule regarding Appellant's Motion for Stay: I. WITNESSES 1. Ann Kenny, Department of Ecology, Northwest Regional Office;

submits the following objections to the issues proposed separately by the Airport Communities Coalition (ACC). Ecology's objections are as follows: Issue No. 2: Ecology objects to this issue as it relates to alleged activities outside of the 401 Certification and, in this appeal, the Board does not have jurisdiction over any such alleged activities. Issue No. 3" This issue is duplicative, vague and circular. To the extent that the issue is directed to the question of whether Ecology had reasonable assurance that the Port of Seattle's proposed project would not violate state water quality standards, that issue is addressed in Stipulated Issue No. 4. AR 006193 ECOLOGY'S OBJECTIONS TO ISSUES 1 ATTORNEYGENERALOFWASHINGTON Ecology Division PROPOSED SEPARATELY BY ACC ao Box40117 GINAL WA98504-0117RI 6_6 60Olympia, In light of those objections, Ecology requests that the Board strike the ACC's separately proposed Issues Nos. 2 and 3. DATED this 1__ day of November, 2001. CHRISTINE O. GREGOIRE Attorney General (__ JOAN M. MARCHIORO WSBA #19250 Assistant Attorney General yTHOMAS J. YOUNG WSBA #17366 Assistant Attorney General Attorneys for Respondent State of Washington Department of Ecology (360) 586-6770 AR 006194 ECOLOGY'SOBJECTIONSTOISSUES 2 ATTORNEYGENERALOFWASHINGTON Ecology Division PROPOSEDSEPARATELYBYACC POBox40117 Olympia, WA 98504-0117 FAX (360) 586-6760 PCHB206006193 PCHB206006194

Pursuant to the Pre-Hearing Order dated October 30, 2001, as amended orally on November 1, 2001, the parties stipulated to three proposed legal issues for the Board's consideration on November 2, 2001. Subsequently, on November 14, 2001, the parties reached agreement upon 18 additional proposed legal issues. As a result of this additional agreement, there remain only three legal issues separately proposed by ACC and one legal issue separately proposed by the Port. For the Board's convenience, this Supplemental Stipulation includes the agreed issues from November 2, 2001 and the agreed issues from November 15,2001. The remaining legal issues separately proposed by ACC and the Port are set forth in attached Exhibit A. ORIGINAL ..oo.,., SUPPLEMENTAL STIPULATION REGARDING HELSELLFETTERMANLLP RachaelPaschalOsborn PROPOSED STATEMENT OF LEGAL ISSUES - 1 1500PugetSoundPlaza Attorneyat Law 1325FourthAvenue 2421WestMissionAve. Seattle,WA98101-2509 Spokane,WA99201 Agreed Issues from November 2, 2001 1. Did Ecology violate applicable law pertaining to public and agency notice, hearing, comment and modification regarding the original 401/404 application and Amended Certification? 2. Does Ecology's concurrence with the Port's consistency certification, issued pursuant to the Coastal Zone Management Act ("CZMA"), fail to comply with the requirements of the CZMA and Washington's approved Coastal Zone Management Plan? 3. Do the stated limitations on the temporal, operational, and geographic scope of the Certification, including its limitation to "Port 404 projects," violate the requirements of Section 401 of the Clean Water Act and applicable state water quality law? Agreed Issues from November 14, 2001 4. Is there reasonable assurance that the…

Pursuant to the Board's Prehearing Order, respondent Port of Seattle provides the following preliminary list of potential witnesses and exhibits. I. WITNESSES Pursuant to the Board's scheduling letter, respondent Port of Seattle ("Port") submits the following list of potential witnesses who may be called at the hearing in this matter. All witnesses may be contacted through the Port's counsel of record: 1. Paul Agid - Environmental Port of Seattle Aviation Project Management Group 17900 International Blvd., Suite 301 SeaTac, WA 98188 2. Barry R. Christopher, Ph.D. PE 210 Boxelder Lane Roswell, GA 30076 PORT OF SEATFLE'S PRELIMINARY WITNESS AND EXHIBIT FOSTER PEPPER _ SHEFELMAN PLLC LIST - 1 1111 THIRDAVENUE, SUITE3400 SEATTLE, WASmNGTON 98101-3299 206-447-4400 ORIGINAL 3. James C. Kelley, Ph.D. Parametrix, Inc. 5808 Lake Washington Blvd. NE, Suite 200 Kirkland, WA 98033-7350 4. Dr. James K. Mitchell, Ph.D., PE Geotechnical Engineer 209 Mateer Circle Blacksburg, VA 24060 5. William Stubblefield ENSR Toxicology 4303 West LaPorte Avenue Ft. Collins, CO 80521 6. Donald E. Weitkamp, Ph.D. Parametrix, Inc. 5808 Lake Washington Blvd. NE, Suite 200 Kirkland, WA 98033-7350 7. Paul S. Fendt, P.E. Parametrix, Inc. 5808 Lake Washington Boulevard Northeast Kirkland, Washington 98033 8. Michael Bailey, P.E. Hart Crowser, Inc. 1910 Fairview Ave. E. Seattle, WA 98102-3699 9. Keith R Smith Water Resources Manager Port of Seattle 17900 International Blvd., Suite 402 SeaTac, WA 98188-4236 10. Norman Crawford Hydrocomp, Inc. 2386 Branner Dr. Menlo Park, CA 94025 11. Tom Hubbard Port of Seattle Aviation Project Management Group 17900 International Blvd.,…

ATTO.,,E , R 6 ived by FAX - /L J 1.)- / _-'01 NOV i 6 2001 ENVi R C)N h/.',2__,"_ " Direct Facsimile (206) 749-1997 November 15, 2001 E-Mail PearR@foster.com VIA FACSIMILE Ms. Kaleen Cottingham, Presiding Officer Pollution Control Hearings Board Rowe Six, Bldg. 2, MS 40903 4224 6th Avenue SE Lacey, WA 98504-0903 1 1 THIRD Re: PCHB Case No. 01-160 AwNuE Plans and Reports Prepared Pursuant to §401 Certification Suite 3400 SEATTLE Washington 98101-3299 Dear Ms. Cottingham: Telephone (206) 447-4400 As required by the Board's Preheating Order in this matter, the Port of Seattle Facsimile herein identifies the plans and reports (other than ministerial documents) prepared or (206) 447-9700 Website expected to be prepared pursuant to the §401 Certification and on which the Port or WWW.FOSTER.COM Ecology may rely at the hearing on the merits. The Port has consulted with Ecology on the list included below. In addition, the Port has identified certain ministerial documents to be prepared pursuant to the §401 Certification. Any document deemed to be non- ministerial is hereby listed as a document to be prepared after February 15, 2001. The §401 Certification requires the submittal of certain plans and reports, ANCHORAGE both before and after the November 15, 2001 date set by the Board. With respect to Alaska each report submitted, it is possible that Ecology may require changes. The Port reserves the right to submit as an exhibit any such changes required by Ecology. In B_'LEVUE Washington addition, it is possible that…

, S- o (., uu i'-.-';.,/I L [11 I I I III NOV i 6 2001 EN g _g..., N, X,_.... _:,, .... POLLUTION CONTROL HEARINGS BOARD FOR THE STATE OF WASHINGTON AIRPORT COMMUNITIES COALITION, Appellant, No. 01-160 v. PORT OF SEATTLE'S OBJECTIONS TO ISSUES DEPARTMENT OF ECOLOGY AND PROPOSED BY PETITIONER THE PORT OF SEATTLE, AIRPORT COMMUNITIES COALITION Respondents. On November 2, 2001, the parties filed a stipulation agreeing to three of the legal issues to be decided in this case. Also on November 2, 2001, the petitioner Airport Communities Coalition (ACC) and respondent Port of Seattle filed separate lists of issues on which the parties had not reached agreement. Because the parties have agreed on proposed issues (with the exception of the three issues listed below), the Board need not consider the Port's proposed issues. On November 9, 2001, the ACC furnished the Port and Ecology with the ACC's revised list of proposed issues, in which the ACC reduced their proposed additional issues from 32 issues to 20 issues. In a conference call, the parties were able to agree on the formulation of most of the issues for this case. The agreed-to issues are being filed with a Board pursuant to a stipulation and order signed by all parties. AR 006159 PORT OF SEATTLE'S OBJECTIONS FOSTER PEPPER _' SHEFELMAN PLLC TO ACC'S PROPOSED ISSUES- 1 ORIGINAL 1111THIRDAVENUE,SUITE3400SEATTLE,WASmNGTON98101-3299206-447-440050288545.02 The Port objects to three remaining ACC issues as follows (the issues are numbered as they appeared on the ACC's November…

ACC may call the following as witnesses at the hearing on the merits of this matter. This list is necessarily preliminary and will be amended as further information is obtained once the Port and Ecology fully disclose new plans and reports and the bases for the Certification. ACC therefore reserves the right to modify this list in response to issues, witnesses or exhibits disclosed in discovery or proposed or raised by the Port or Ecology. ACC further reserves the right to call all witnesses listed by other parties or who have or will submit testimony, written or oral, in this appeal.17 Department of Ecology Personnel: Ann Kenny Ray Hellwig 2o Kevin Fitzpatrick John Drabek Erik Stockdale Ching-Pi Wang Jeannie Summerhays Tom Fitzsimmons Gordon White Bob Barwin AN 006154 Chung Ki Yee ACC'S UPDATED PRELIMINARY LIST OF HELSELL FETTERMAN LLP Rachael Paschal Osborn WITNESSES - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 Steve Alexander John Wietfeld Roger Nye Dave Garland Nancy Groves Curt Hart Pete Kmet Dan Swenson Steven Hirschey Joan Marchioro Port of Seattle Personnel: Elizabeth Leavitt Gina Marie Lindsay Paul Agid10 Wendy Clement Keith Smith Michael Cheyne Jay Manning Other Persons: Tom Luster, former Dept. of Ecology employee Kelly Whiting, King County DNR David Masters, King County DNR Parametrix personnel, including but not limited to Jim Kelley, Paul Fendt Kate Snider and any other Floyd & Snider personnel who participated in facilitated meetings17 between…