TagPollution Control Hearings Board(1507)

In its Motion for Stay, ACC identified fundamental problems in the Port's low flow analysis and mitigation plan which should have precluded an Ecology determination of reasonable assurance required for issuance of a Clean Water Act § 401 Certification. 1 To rebut ACC's arguments, Ecology offered the Declaration of Kelly Whiting, an engineer with King County who, per interagency contract, functioned as Ecology's expert for review of the Port's Stormwater and Low Flow plans. Recently, Ecology released to ACC under the Public Disclosure Act agency records including an email from Kelly Whiting which, in scathing terms, validated ACC's identification of fundamental flaws in Ecology's reliance on the Port's low flow analysis and mitigation plan. 2 ACC therefore made a Motion to Supplement the Record on its Stay Motion with four documents, totaling 14 pages, all focused on the low flow plan and Mr. Whiting's admissions. See ACC's Memorandum in Support of Motion for Stay at pp. 10-13and ACC's Reply Memorandum in Support of Motion for Stay at pp. 15-22. 2See October 25, 2001 email from Kelly Whiting, Exhibit B to Andrea Grad Declaration in Support of ACC's Motion to Supplement. AR 005862 ACC'S REPLY ON MOTION TO SUPPLEMENT HELSELL FETTERMAN LLP Rachael Paschal Osborn THE RECORD - 1 1500 Puget Sound Plaza Attorney at Law ORIGINAL 1325 Fourth Avenue 2421 West Mission Ave.Seattle, WA 98101-2509 Spokane, WA 99201 Significantly, Ecology offers no opposition to ACC's motion, nor does it question the authenticity of the Ecology records which ACC has offered…

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) ) I, BRETT FISH, declare: 1. I state the following from personal knowledge and am competent to testify thereto. I am the President of Citizens Against Seatac Expansion ("CASE"). 2. CASE is a non-profit corporation organized and in good standing under Washington law. CASE is a broad-based, local citizen's group which, among other things, acts to protect the local environment and communities from the impacts of Seatac Airport. CASE and its members have consistently fought for clean water, including fighting for better enforcement of the Port of Seattle's NPDES permit for discharges from Seatac into local streams. DECLARATION OF BRETT FISH- 1 SMITH & LOWNEY, P.L.L.C.231 '7 EAST .JOHN STREET SEATTLE, WASHINGTnN 981 ] (205) 860-2883 ORIGINAL ,. o 3. CASE has a long history of responsible environmental and civic activism.1 CASE's efforts to safeguard its members, local communities, and local ecosystems from the impacts of Sea-Tac Airport have included appealing the reissuance of the Port of Seattle's NPDES permit for discharges at Sea-Tac, and appealing the Washington State Department of Ecology's recent modification of the Port's NPDES permit. The latter appeal is presently pending before the Pollution Control Hearings Board as PCHB No. 01-090. 4. CASE is interested in this action for several reasons. CASE submitted oral and written comments on the proposed 401 Certification. CASE does not believe that Ecology's10 Certification that the proposed third runway and master plan update projects fairly addresses the substance of CASE's comments…

1. APPEALING PARTY: The appealing party is: Citizens Against Seatac Expansion 19900 4thAvenue SW Normandy Park, WA 98166 Phone: (206) 824-0805 Fax: (206) 824-3451 The appealing party is represented by Richard A. Poulin, Of Counsel SMITH & LOWNEY, P.L.L.C. 2317 East John Street Seattle, WA 98112 (206) 860-2883 fax (206) 860-4187 NOTICE OF APPEAL- 1 SMITH & LOWNEY, P./.I...C. ? EAST JOHN STREET SEATTLE, WASHINGTON 9B 1 12 (206) 860-2883 ORIGINAL ,. 2. ADDITIONAL PARTIES: In addition to the appealing party, the parties to this appeal include: the agency whose decision is being appealed, the Washington Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600; the entity to whom the decision is directed, the Port of Seattle, P.O. Box 68727, Seattle, WA 98168; and the original appellant, the Airport Communities Coalition, 21630 11thAvenue South, Des Moines, WA 98198. 3. ORDER OR DECISION APPEALED FROM: Petitioner appeals from the Washington Department of Ecology's September 21,2001 issuance of (amended) Clean Water Act Section 401 Certification Order No. 1996-4-02325 (Amended-l). A copy of that decision is attached to the Airport Communities Coalition's Notice of Appeal dated October 1,2001, which notice of appeal is incorporated herein by reference. 4. GROUNDS FOR APPEAL: Appellant CASE hereby incorporates by reference the grounds for appeal identified in the Notices of Appeal submitted by the Airport Communities Coalition on August 23, 2001 (PCHB No. 01-133) and on October 1, 2001 (PCHB No. 01-160). 5. IDENTIFICATION OF SUPPORTING FACTS AND EXHIBITS: Appellant CASE hereby incorporates by reference the statement…

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) ) )

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) ) MEMORANDUM SUPPORTING CASE'S SMITH & L(3WNEY, P.L.L.C,za 1v EAsTJoH_m-_T MOTION TO INTERVENE s=A_-=,W_H,NGTON9a 11z (zoalB_o-zaaa ORIGINAL A.o I. RELIEF REQUESTED Pursuant to Civil Rule 24 and WAC 371-08-420(1), Citizens Against SeaTac Expansion -_ ("CASE") moves the Pollution Control Hearings Board for status as an intervenor in this case. II. STATEMENT OF-FACTS On August 10, 2001, the Washington Department of Ecology issued Clean Water Act Certification No. 1996-4-02325, and a Coastal Zone Management Act Section 307(c)(3) concurrence statement to the Port of Seattle for Sea-Tac Airport Master Plan Update projects including the proposed third runway. Both the Airport Communities Coalition and the Port of Seattle appealed the Certification, in PCHB Nos. 01-133 and 01-150, respectively. The latter appeal resulted in the issuance of an Amended Certification ("Certification Order No. 1996-4- 02325 (Amended- 1)") on September 21,2001. The Airport Communities Coalition subsequently14 appealed the Amended Certification in PCHB No. 01-160. Petitioner/intervenor CASE is a non-profit corporation organized and in good standing under Washington law. See, Declaration of Brett Fish ("Fish Dec.") at 1 ¶1. CASE is a broad- based, local citizen's group which, among other things, acts to protect the local environment and communities from the impacts of Sea-tac Airport. Id. CASE and its members have consistently fought for clean water, including fighting for better enforcement of the Port of Seattle's NPDES pernait for discharges from Sea-tac into local streams. Id. CASE's efforts to safeguard its members, local communities, and local…

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) ) TO: ALL PARTIES AND TO THEIR COUNSEL OF RECORD CITIZENS AGAINST SEATAC EXPANSION ("CASE"), by and through counsel, Richard A. Poulin of Smith & Lowney PLLC, hereby moves the Pollution Control Hearings Board to intervene in the above-captioned appeal. This motion is based on Civil Rule 24 and WAC 371-08-420(1), and is supported by the memorandum submitted herewith, the Declaration21 of Brett Fish, and the pleadings, papers, and records filed in this case. DATED this 30th day of November, 2001. SMITH & Lf-lWNEY, P.L.L.C. By: Richard A. Poulin, Of Counsel WSBA # 27782 MOTION TO INTERVENE- 1 SMITH a LOWNEY, P.I-.L.(_. _-3 1 7 EAST dnHN STREET SEATTLE, WASHINGTON 9B 1 1 2 (206) B60-2B83 ORIGINAL AR Attorneys for Intervenor Citizens Against Seatac Expansion CERTIFICATE OF SERVICE declare under penalty of perjury under the laws of the State of Washington that I served a copy of Petitioners' Motion to Intervene, the supporting memorandum, the proposed Order Granting Intervention, the Notice of Appeal, and the Declaration of Brett Fish on counsel for appellant Airport Communities Coalition, and on counsel for respondents Washington State

ACC does not object to CASE's Motion to Intervene. ACC agrees with CASE that the Motion to Intervene should not interfere with resolution of ACC's pending Motion for Stay.1 DATED this 5th day of December, 2001. HELSELL FETTERMAN LLP / By: , Peter fSB_ #_809 Rach_el P_zh_] Osbom_ Kevin L. Stock, WSBA #14541 WSBA # 21618 Michael P. Witek, WSBA #26598 Attorney for Appellant Attorneys for Appellant g:luaccpchbrspcasemomint.doc AN 005840 _See Memorandum Supporting CASE's Motion to Intervene, at p. 3. ACC'S RESPONSE TO CASE'S MOTION TO HELSELL FETTERMAN LLP Rachael Paschal Osbom INTERVENE - 1 1500 Puget Sound Plaza Attorney at Law ORIGINAL 1325 Fourth Avenue 2421 West Mission Ave.Seattle, WA 98101-2509 Spokane, WA 99201 DEC - 6 2001 EN V 1RON _viEi,,t"E?,L POLLUTION CONTROL HEARINGS BOARD FOR THE STATE OF WASHINGTON AIRPORT COMMUNITIES COALITION, ) ) No. 01-160 Appellant, ) ) CERTIFICATE OF SERVICE V. ) ) STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA concurrency10 THE PORT OF SEATTLE, ) statement, issued August 10, 2001, ) Reissued September 21, 2001, under No. Respondents. ) 1996-4-02325 (Amended-l)) ) I, Andrea Grad, an employee ofHelsell Fetterman LLP, attorneys for the Airport14 Communities Coalition, certify that: am now, and at all times herein mentioned was, a citizen of the United States, a resident of the State of Washington, and over the age of eighteen years. On December 5, 2001, I caused to be sent via facsimile and via U.S. Mail, First Class, a…

Number of Pages (Including this cover page): 3 User & Client/Matter Number: 487 7155-24 Return to/Location: 34-15 IF YOU HA VE QUESTIONS REGARDING THE TRANSMISSION OF THIS FAX, PLEASE CONTACT TItlE FAX DEPARTMENT AT (206) 447-2903 THE INFORMATION CONTAINED IN THIS FACSIMItE COMMUNICATION IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF EACH INDIVIDUAL OR ENTITY NAMED ABOVE. IF TIlE RF_,A.DER OF Tills COVER PAGE lS NOT A.N INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COI"YlNG OF THIS COMMUNICATION OR THE INFORMATION CONTAINED IN THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HA VE RECEIVED THIS COMMUNICATION IN ERROR. PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AIVD RETURN THIS F'ACSIMILE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. AR 005836 12,'o6_01 16:03 FAX 20B 447 9700 F P & S _oo2/oo3 DEC- 6 2001I ENVIRL Nj/ I:,.II ., HEAR N(o,-> ._ POLLUTION CONTROL I-IE_GS BOARD FOR THE STATE OF WASHINGTON A12LPORT COMMUNITIES COALITION, Appellant, PCI-1B Case No. 01-160 v. PORT OE SEATTLE'S RESPONSE TO MOTION TO DEPARTMENT OF ECOLOGY AND INTERVENE FROM THE PORT OF SEATTLE, CITIZENS AGAINST SEA- l 3 TAC EXPANSION (CASE) Respondents. Although respondent Port of Seattle ("Port") disagrees with the factual allegations in the motion to intervene filed by Citizens Against Sea-Tac Expansion ("CASE"), the Port does not object l7 to CASE's intervention i__fappropriate limits are set on the intervention so that the "'prompt and orderly 1$ conduct of the appeal will not be impaired." WAC 371-08-420(1).…

TO: Peter J. Eglick, Kevin L. Stock, Rachael Paschal Osbom and Michael P. Witek, Attorneys for Appellant Airport Communities Coalition; Linda Strout, Traci Goodwin, Roger A. Pearce, Steven G. Jones, J. Tanya Barnett, Jay J. Manning, and Gillis E. Reavis Attorneys for Respondent Port of Seattle; AND TO: The Clerk of the Pollution Control Hearings Board.

respondent Port of Seattle requests in response to appellant Citizens Against Sea-Tac Expansion' (CASE') motion to intervene. Within those limits, the Department does not oppose CASE' motion. DATED this _k_day of December 2001. CHRISTINE O. GREGOIRE General _MQ_RCH_, WSBA # 19250 J. YOUNG, WSBA # 17366 JEFF KRAY, WSBA # 22174 Assistant Attorneys General DEPARTMENT OF ECOLOGY' S 1 ATTORNEYGENERALOFWASHINGTON Ecology Division RESPONSE TO MOTION TO POBox40117 INTERVENE FROM CITIZENS olympia,WA98504-0117 AGAINST SEA-TAC EXPANSION FAX(360)586-6760 (CASE) AR 005830 Attomeys for Respondent State of Washington Department of Ecology (360) 586-6770 DEPARTMENT OF ECOLOGY'S 2 ATTORNEY GENERAL OF WASHINGTON Ecology Division RESPONSETOMOTIONTO POBox40117 INTERVENE FROM CITIZENS Olympia, WA 98504-0117 AGAINSTSEA-TACEXPANSION FAX(360)586-6760 (CASE) AR 005831 ! D_C1 0 gOOT ENViRoN}.4EN7 -,,I'4EARINGS . & ,_ BEFORE THE POLLUTION CONTROL HEARINGS BOARD STATE OF WASHINGTON AIRPORT COMMUNITIES PCHBNo. 01-160 COALITION, CERTIFICATE OF SERVICE Appellant,