TagPollution Control Hearings Board(1507)

ACC incorporates by reference and may introduce any or all documents listed by the Port and Ecology on their exhibit lists submitted to date. Some of the documents listed here may overlap with the Port and Ecology lists, but the non-inclusion on this list of documents listed by the Port or Ecology does14 not indicate that ACC may not introduce them. Whether indicated below or not, all comment letters listed below include their attachments. Emails which are listed may include attachments as well as other, earlier emails below the email date and title which is listed. All emails listed are as they were received by ACC from Ecology pursuant to ACe's Public Disclosure Act requests. 1. August 10, 2001, and 401 Certifications and all documents they cite and rely on; 2. Depositions and Exhibits to them;22 3. Resume of Amanda Azous; AR 006137 Some emails received via PDA request from Ecology indicated on the face of the email that they had attachments, but the attachments were not provided to Ace. Ace's UPDATED PRELIMINARY LIST OF HELSELL FETTERMAN LLP Rachael Paschal Osbom EXHIBITS - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. ORIGINAL Seattle, WA 98101-2509 Spokane, WA 99201 4. Letter from Amanda Azous to Dept. of Ecology dated May 23, 2000; 5. Letter from Amanda Azous to Dept. of Ecology dated May 24, 2000; 6. Letter from Amanda Azous to Dept. of Ecology dated June 5, 2000; 7. Letter from Amanda Azous to…

v. ) IN SUPPORT OF ACC'S MOTION TO ) SUPPLEMENT THE RECORD ON ITS STATE OF WASHINGTON, ) MOTION FOR STAY 1o DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) (Section 401 Certification No. ) 1996-4-02325 and CZMA concurrency Respondents. ) 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 ofHelsell Fetterman LLP, which represents the Airport Communities Coalition in this matter. 3. On November 5, 2001, I submitted a routine Public Disclosure Act request to the Department of Ecology's Northwest Regional Office. On November 7, 2001, I received from Sarah Wright at Ecology's NWRO several short documents, via fax. I was out of the office on DECLARATION OF ANDREA GRAD IN HELSELL FETTERMAN LLP Rachael Paschal Osborn SUPPORT OF ACC'S OPPOSITION TO 1500 Puget Sound Plaza Attorney at Law ECOLOGY'S MOTION TO STRIKE - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL AR 006114 Friday, November 9, 2001, and Monday, November 12, 2001. On Friday, November 9, Ecology's NWRO made available to us some 651 pages of PDA documents, and another Helsell Fetterman paralegal had these documents picked up by messenger in my absence. On Tuesday, November 13, and ensuing days, I reviewed the new documents. 4. Attached hereto…

v. ) THE RECORD ON ITS MOTION FOR ) STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) Pursuant to WAC 371-08-450 and the Board's Pre-Hearing Order (10/30/01), the Airport Communities Coalition (ACC) seeks an order allowing supplementation of the evidentiary record supporting ACC's motion for stay of the 401 Certification. This motion is based on the information set forth below and in the accompanying Declaration of Andrea Grad in Support of ACC's Motion to Supplement the Record on Its Motion for Stay (Grad Decl.) and exhibits thereto. On November 5, 2001, ACC sent a routine public record request to the Department of Ecology seeking copies of all recent documents pertaining to the Third Runway Project. Grad Decl., ¶ 3. On November 7 and November 9, 2001, attorneys for ACC received from Ecology copies of several documents pertaining to the revised low flow analysis being prepared by the Port of Seattle in support of the Section 401 Certification issued by Ecology on September 21, 2001. Id. These documents start chronologically with a letter from Port water resources manager Keith Smith to Ecology 401 permit coordinator Ann Kenny (dated 10/24/01) requesting an extension of the deadline established in the 401 for submission of a completed revised low flow analysis (Grad Decl., Ex. A). They continue with an ACC'S MOTION TO SUPPLEMENT HELSELL FETTERMAN LLP Rachae[ Paschal Osborn THE RECORD - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421…

The parties were directed by the original pre-hearing order to meet and seek agreement on the proposed legal issues to be considered by the Board in this appeal. If the parties were unable to reach complete agreement on the legal issues, the parties could file a proposed list of agreed issues together with any issues for which there is no agreement. The parties were then given until November 15, 2001, to file their objections to the issues proposed separately by other parties. On November 16, 2001, the parties filed a supplemental stipulation regarding proposed statement of legal issues. In that stipulation, 21 issues are set forth for the Board's consideration. The Board hereby accepts these 21 issues as the issues of the case. The stipulation is attached to and made a part of this order. In addition to the 21 stipulated issues, three other issues are in dispute. The Board has reviewed the proposals and countervailing arguments and renders the following decision. The following additional issue, numbered 22, will be included as part of the case: PCHB No. 01-160 1 SECOND PRE-HEARING ORDER AR 006101 22. Did Ecology have reasonable assurance that § 401 and applicable water quality laws would not be violated when it relied on a stormwater detention system that may require future compliance with dam safety regulations (chapter 173-175 RCW) and may require a dam safety permit prior to commencing construction? The Appellant's have proposed two additional issues that are too vague at this time to be…

1. I am over the age of eighteen, have personal knowledge of the facts stated in this declaration, and am competent to testify to those facts. 2. I have more than 18 years of stormwater engineering and planning experience, encompassing a broad range of stormwater and surface water projects. I have significant experience working with hydrologic and hydraulic modeling (HEC-1, WaterWorks, HEC-2, HEC-RAS), NPDES stormwater permits, erosion control on creeks and lake shores, comprehensive storm and surface water plans, preparation of drainage ordinances and environmental impact statements. I have worked extensively with the Department of Ecology's Stormwater Manuals and with King County's Surface Water Design Manual. THIRD DECLARATION OF PAUL S. FENDT - 1 FOSTER PEPPER _ SHEFELMAN PLLC 1111 THIRD AVENUE,SUITE3400 SEATTLE, WASHINGTON 98101-3299 ORIGINAL 206-447-4400 _o_o,,.o, AR 006092 3. I have been the project manager for stormwater management and low flow mitigation for the Port of Seattle's Master Plan Update ("MPU") projects for the past four years. I was the principal author of the Port of Seattle's Comprehensive Stormwater Management Plan ("SMP") and a principal author of the Low Streamflow Analysis - Flow Impact Offset Facility Proposal. I graduated from the University of North Dakota with a degree in Geological Engineering in 1981. I was licensed as a Professional Engineer (Civil) by the State of Washington in January 1991 and the State of Florida in February 1990. I have been employed by Parametrix, Inc. for the past 11years. A copy of my current curriculum vitae is attached as…

2001,1 which constituted a Clean Water Act § 401 Certification, an RCW 90.48 Order and Coastal Zone Consistency (401 Certification) determination for the Port of Seattle's (Port) construction of a runway and other projects at the Seattle-Tacoma International Airport (STIA). As set forth below, the ACC falls far short in carrying its burden to establish that it is 1On September21, 2001,EcologyrescindedOrderNo. 1996-4-02325andissuedOrderNo. 1996-4- 02325 (Amended-l)in its place. A copy of the amended401 Certificationis attachedas Exhibit 1 to the Declarationof AnnKenny.PursuanttotheAgreementRe Rescissionof401 Certificationsignedby theBoardon September20, 2001,if theACCappealstheamended§ 401 Certification,allpleadingsfiledinthis appeal(PCHB No.01-133),includingtheACC'srequestfora stay,willbe transferredtothenewlyfiledappeal. ECOLOGY'S RESPONSE TO 1 ATTORNEYGENERALOFWASHINGTON EcologyDivision APPELLANT'S MOTION FOR STAY PO Box40117 ORIGINAL ,_ 007395 OlYFAPx_'3W0"_;:50470_ 17 entitled to a stay of the 401 Certification. Ecology requests that the Board deny the ACC's motion for stay. II. STATEMENT OF FACTS The Port submitted its initial application for a Clean Water Act § 404 Permit ("404 Permit") and 401 Certification in December, 1997. The required public process, involving a public hearing and acceptance of written comments, followed. Based on the application submitted, Ecology issued a 401 Certification to the Port on July 20, 1998. Declaration of Ann Kenny (Kenny Dec.) at ¶ 8. That 401 Certification was later withdrawn when 'the Port discovered that it had underestimated the amount of wetlands that would be filled by the project, ld. The Port subsequently submitted a second application for a 404 Permit and 401 Certification in September 1999. A second public notice and public comment process followed. In September 2000, with…

Respondent Port of Seattle ("Port") has no objection to the Board's consideration of additional documents when necessary. In the case of the motion to supplement the record for the motion to stay, filed by petitioner Airport Communities Coalition ("ACC"), however, there is no need to supplement the record because those documents, when viewed in context, do not provide the Board with significant information. In the alternative, if the Board does wish to supplement the record, the Board should also consider relevant documents submitted by the Port to Ecology since briefing on the motion to stay. First, the motion to stay was fully briefed and argued to the Board. Reopening the record on a motion that has already been fully briefed will only erode the orderly process of this case. Moreover, although the ACC attempts to sensationalize certain statements from the hearsay emails it wishes the Board to consider, ACC has made no showing that the low streamflow impacts caused by the Port's Master Plan Update ("MPU") projects will not be fully and completely mitigated. The documents provided by ACC do not admit to deficiencies in the hydrologic modeling or mitigation. Rather, they simply describe the process by which the low streamflow analysis is being revised. Moreover, as explained in detail in the accompanying Third Declaration of Paul S. Fendt, the revised Low PORT'S RESPONSE TO MOTION TO SUPPLEMENT - 1 FOSTER PEPPER _' SHEFELMAN PLLC 1111 THIRDAVENUE, SUITE3400 50290464.03 AR 005903 0 R_GIN A L SEATTLE' W20_'HIg7GT4_o98101"3299 Streamflow Analysis is…

Pursuant to the Agreement and Order Re Rescission of 401 Certification, signed by the Board on September 20, 2001, under PCHB Nos. 01-133 and 01-150, and pursuant to the Department of Ecology's rescission and reissuance of the (amended) Clean Water Act Section 401 Certification Order No. 1996-4-02325 (Amended - 1) on September 21, 2001 ("Amended Certification"), the Airport Communities Coalition hereby files its Notice of Appeal of the Amended Certification. A copy of the Amended Certification is attached to this Notice of Appeal.19 This Notice of Appeal incorporates by reference ACC's previous Notice of Appeal and accompanying exhibits and documents, filed with the Board (PCHB No. 01-133) and served on the Port and Ecology on August 23, 2001, as contemplated on page 3 of the Board's September 20 Order. In general, changes reflected in the Amended Certification reduce or eviscerate already inadequate ACC'S NOTICE OF APPEAL OF AMENDED SECTION HELSELL FETI'ERMAN LLP Rachael Paschal Osborn 401 CERTIFICATION - 1 1500Puget Sound Plaza Attorney at Law ORIGINAL1325 Fourth Avenue 2421 West Mission Ave.Seattle, WA 98101-2509 Spokane, WA 99201 AR 007337 "protections" provided under the original 401 Certification. ACC therefore submits the following supplemental grounds for appeal: a 1. The Amended Certification was issued in violation of applicable regulations in WAC Chapter 173-225, including but not limited to WAC 173-225-030(1) (public notice requirements), - 030(2) (opportunity for public comment), and -030(3) (requirement for departmental determination concerning public hearing), and without opportunity for comment by the public and agencies with jurisdiction. 2. The…

v. ) ORDER ON MOTION TO RECONSIDER ) MOTION TO STRIKE STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) On October 10, 2001, the Board granted the Department of Ecology's (Ecology's) motion to strike certain references to a document relied on in the Appellant Airport Communities Coalition (ACC) motion for stay and supportive reply materials. The Appellant has asked the Board to reconsider its ruling on the motion to strike. The Board has granted that request. The basis for the motion to strike was the attomey-client privileged nature of the communication contained in the document at issue and its inadvertent disclosure. 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 contained a reference to advice from an Assistant Attorney General regarding a particular issue. While this issue is part of the

STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA concurrency 1o THE PORT OF SEATTLE, ) statement, Issued August 10, 2001, ) Reissued September 21, 2001, under Respondents. ) No. 1996-4-02325 (Amended-i)) ) William A. Rozeboom 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. This is my third declaration to the Pollution Control Hearings Board (PCHB) in the matter of Section 401 Certification No. 1996-4-02325. My first declaration to the PCHB, in support of ACC's motion for stay, was dated 11 September 2001. My second declaration to the PCHB, in support of ACC's reply on motion for stay, was dated 8 October 2001. 3. I am a professional civil engineer licensed in the State of Washington. I am21 employed as a senior engineer with Northwest Hydraulic Consultants. I have over 20 years of specialized experience in surface water hydrology and hydraulics. My curriculum vitae was attached as Exhibit A to my first declaration. THIRD DECLARATION OF WILLIAM A. HELSELL FETTERMAN LLP Rachael Paschal Osborn ROZEBOOM - 1 15o0 Puget Sound Plaza Attorney at Law GINAL 1325 Fourth Avenue 2421 West Mission Avenue0RI Seattle, WA 98101-2509 Spokane, WA 99201 AR 005864 4. Northwest Hydraulic Consultants has been retained since October 1999 on behalf of the Airport Communities Coalition (ACC) to provide technical reviews of stormwater facilities and related streamflow impacts from the proposed 3rd runway and other…