TagPollution Control Hearings Board(1507)

The Port of Seattle ("Port"), by and through its counsel of record, moves the Board for an order: 1. Compelling the Airport Communities Coalition ("ACC") to produce all responsive documents sought by the Port in its requests for production, and to comply with the subpoenas duces tecum that the Port has issued with respect to ACC's expert witnesses; 2. Continuing the depositions of all ACC expert witnesses based on ACC's failure to produce documents so that the Port may depose ACC's witnesses in light of ACC's document production; and 3. For an order denying the submittal of any testimony from a witness for whom ACC has not produced documents and who has not been made available for deposition following production of all responsive documents. PORT OF SEATTLE'S MOTION TO FOSTER PEPPER _' SHEFELMAN PLLC COMPEL PRODUCTION OF DOCUMENTS - 1 1111 THIRDAVENUE,SUITE3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 ORIGINAL AR 005408 II. BACKGROUND FACTS The Port propounded its first set of Interrogatories and Requests for Production on November 9, 2001. A copy of those discovery requests is attached to the Third Declaration of Steven G. Jones ("Third Jones Dec.") as Exhibit A. ACC served the Port with its responses and objections to the Port's discovery requests on December 10, 2001. A copy of ACC's objections and responses is attached to the Third Jones Dec. as Exhibit B. In its Requests, the Port asked for "all documents relied on or reviewed to form the basis of the opinions, facts, or other testimony referenced…

Airport Communities Coalition, having filed a Motion to Extend Discovery Schedule; the Board, having reviewed the following pleadings and exhibits filed in this matter: 1. ACC's Motion to Extend Discovery Schedule; 2. Declaration of Michael P. Witek in Support of ACC's Motion to Extend Discovery Schedule, with exhibits; zo 3. And any responsive pleading and declarations by the Port or the Department of Ecology; IT IS NOW THEREFORE ORDERED: 1. That ACC's Motion to Extend Discovery Schedule is GRANTED; and 2. That the Pre-hearing Order in this matter is amended to extend the time for ACC to depose Port of Seattle witnesses from February 1, 2002, to February 25, 2002; extend the time for ORDER GRANTING ACC'S MOTION TO HELSELL FETTERMAN LLP Rachael Paschal Osborn EXTEND DISCOVERY SCHEDULE- 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 ORIhVAL AR 005384 filing of ACC's final exhibit list from February 8, 2002, to March 1, 2002; and extend the time for filing of ACC's pre-filed direct testimony from February 15, 2002, to March 1, 2002. SO ORDERED this day of ,2002. POLLUTION CONTROL HEARINGS BOARD KALEEN COTTINGHAM, Presiding [ 1o ROBERT V. JENSEN, Member Presented by: HELSELL FETTERM_ LLP , A w Peter J. Eglick, W_BA No. 8809 Kevin L. Stock, WSBA No. 14541 / Michael P. Witek, WSB,_I_Io. 26fi98 RaPhael Paschal _rn, WSBA No. 2-i-0f8 Attorneys for Airport Communities Coalition Approved as to Form; Notice of Presentation Waived: PORT…

FOR THE STATE OF WASHINGTON ENVtRONM_m4 ; HEARINGS Of:F] AIRPORT COMMUNITIES COALITION, ) No. 01-133 ) No. 01-160 Appellant, ) ) DECLARATION OF PETER J. EGLICK v. ) IN SUPPORT OF ACC'S REPLY ON ) 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-l)) Peter J. Eglick declares as follows: 1. I am one of the attomeys for the Airport Communities Coalition. I make this declaration based on personal knowledge and am competent to do so. 2. Attached to this declaration are true and correct copies of the following documents: Exhibit A: Notes regarding DOE Senior Management Team meeting, dated April 3,16 2001 Exhibit B: 33 U.S.C. § 1341(d): 33 CFR § 320.4(d) Exhibit C: United Food & Commercial Workers Union v. Southwest Ohio Regional Transit Authority, 163 F.3d 341,348 (6th. Cir. 1998) Exhibit D: PUD No. 1 v. Washington Dept. of Ecology, et al., 511 U.S. 700, 712 (1994) Exhibit E: Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991) Exhibit F: United States v. Commonwealth of Puerto Rico, 721 F.2d 832, 834 (1st Cir. 1983) HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF PETER J. EGLICKIN Seattle,WA98101-2509 Spokane,WA 99201 SUPPORT OF ACC'S MOTION FOR STAY - 1 ORI61NAL Exhibit G:…

Airport Communities Coalition, having filed a Motion to Compel Inspection of Port Property; the Board, having reviewed the following pleadings and exhibits filed in this matter: 1. ACC's Motion to Compel Inspection of Port Property; 2. Declaration of Michael P. Witek in Support of ACC's Motion to Compel Inspection of Port Property, with exhibits; 3. Declaration of Jeanne Moeller in support of ACC's Motion to Compel Inspection of Port 2o Property; 4. And any responsive pleading and declarations by the Port or the Department of Ecology; IT IS NOW THEREFORE ORDERED: 1. That ACC's Motion to Compel Inspection of Port Property is GRANTED;24 AR 005380 ORDER GRANTING ACC'S MOTION TO COMPEL HELSELL FETTERMAN LLP Rachael Paschal Osborn INSPECTION OF PROPERTY - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL 2. That the Port of Seattle will, within two days of this Order, confer in good faith with ACC counsel and agree dates for site visits for ACC's experts, counsel, paralegal, and two client representatives, to observe, photograph and sample wetlands, soils and streams within the area proposed for construction of the Third Runway and related Master Plan Update Projects; 3. That no depositions shall be taken of ACC witnesses until fourteen days after the site visits; and 4. That, if the Port fails to reach agreement on dates for entry with ACC within two days of the date of this Order, then ACC shall notify the…

v. ) MOELLER IN SUPPORT OF ACC'S ) MOTION TO COMPEL INSPECTION STATE OF WASHINGTON, ) OF PORT PROPERTY o 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)) Jeanne Moeller declares as follows: 1. I am over the age of 18, am competent re testify, and have personal knowledge of17 7o the facts stated herein. 2. I am a resident of the City of Des Moines. As such, I have been interested in and concerned about the Port's proposed Third Runway and related airport development projects. As a result, I was invited by Erlene Byers to participate with a group from the Des Moines Chamber DECLARATION OF JEANNE MOET-I.ER IN HF_.LSELLI-I_yI-ERN4.ANLIP Raehael Paschal Osborn SUPPORT OF ACC'S MOTION TO COMPEL zs00 PugetSound Plaza Attorneyat Law INSECTION OF PORT PROPERTY - 1 1325 Fourth Aveaue 2421 West MissionAvenue _t_e, Y_'A _lO1-ZSO_ _pok_r_n, WA OQoO_ ORIGINAL AR 005378 JAl'4 i 1 2002 01/10/02 TIII.T 13:O1 [TX/RX NO ?982] O]-)O-ZOOZ 01:01pm From-HELSELLFETT¢_MANLLP +2063402524 T-cog P.003/003 F-350 of Commerce inatourof theproposedThirdRunway constructionareaatSeattle-Tacoma InternationalAirportabouta yearago. 3. Priortotakingthetourallthemembers ofthegroupassembledattheterminaltbr lunchand a presentationaboutthcairportina conthrenceroom. 4. ARer lunchand thepresentation,thegroupofapproximately50 personswas6 escortedtoa buswaitingon,theairporttarmac,and thendrivenon a tourneartheareaproposed s forconstructionoftheThirdRunway. 5. I was not asked to and did not sign any paper work prior to going on the site visi_ lo and was no_ subjected to any kind of security procedures prior to going…

v. ) WITEK IN SUPPORT OF ACC'S ) MOTION TO COMPEL INSPECTION STATE OF WASHINGTON, ) OF PORT PROPERTY AND TO DEPARTMENT OF ECOLOGY; and ) EXTEND DISCOVERY SCHEDULE THE PORT OF SEATTLE, ) ) (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)) Michael P. Witek declares as follows: 2. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. Attached to my declaration as Exhibit A is a true and correct copy of pages 59-61 from the December 20, 2001, Ann Kenny deposition transcript.20 3. Attached to my declaration as Exhibit B is a true and correct copy of pages 71-75 from the January 8, 2002, Ray Hellwig deposition transcript. DECLARATION OF MICHAEL P. WITEK IN HELSELLFETTERMANLLP Rachael Paschal Osborn SUPPORT OF ACC'S MOTION TO COMPEL 1500Puget Sound Plaza AttorneYat Law AND TO EXTEND DISCOVERY SCHEDULE - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA98101-2509 Spokane, WA 99201 , :__ ' AR 005316 4. Attached to my declaration as Exhibit C is a true madcorrect copy of ACC's November 26, 2001, Request for Entry. 5. Attached to my declaration as Exhibit D is a true and correct copy of a December 12, 2001, e-mail from ACC counsel to Port counsel. 6. Attached to my declaration as Exhibit E is a true and correct copy of a December 18,2001, e-mail from…

The Airport Commtmities Coalition ("ACC") moves for an order for entry upon the Third Runway/Master Plan Update project area ("Project Area") to observe, photograph, and sample soils, wetlands and streams. II. STATEMENT OF FACTS In order to prepare for the March hearing; ACC and its experts need access to the Project Area to observe, photograph, and in some instances sample Project Area wetlands, soils and streams. The Port has routinely provided such.access to others without preconditions or paperwork requirements, but has denied it to AC(%,For example, Ecology's Ms. Kenny testified in deposition that she has visited the site at least three times, including one visit with counsel for Ecology and the Port, which extended to any and all portions of the site. _ Ms. Kenny testified that she was not subject to any security _ When Ms. Kenny was asked why attorneys were involved in the site visit, she answered " I believe that our attorneys and the Port's attorneys - well, first they wanted to better understand the technical issues involved with this very complex analysis that was done for the low flow work. And then our attorneys wanted some familiarity with the layout of the site and locations for proposed structures under the third runway application." Ann Kenny December 20, 2001, deposition transcript, at p. 59 (Ex. A to the Declaration of Michael P. Witek in Support of ACC's Motion to Compel Inspection of ACC'S MOTION TO COMPEL INSPECTION OF HELSELL FETTERMAN LLP Rachael Paschal Osborn PORT PROPERTY…

1o Airport Communities Coalition ("ACC") moves for the following relief: 1. Modification of the Board's October 30, 2001, Pre-hearing Order to extend the time for ACC to depose Port of Seattle witnesses from February 1, 2002, to February 25, 2002. 2. Modification of the Board's October 30, 2001, Pre-hearing Order to extend the time for filing of Appellants' final exhibit list from February 8, 2002, to March 1, 2002. 3. Modification of the Board's October 30, 2001, Pre-hearing Order to extend the time for15 filing of Appellants' pre-filed direct testimony from February 15, 2002, to March 1, 2002. II. STATEMENT OF FACTS The Board's October 30, 2001, Pre-hearing Order (p. 6) states that "the parties shall cooperate in scheduling depositions and other discovery." Pursuant to the Board's directive, on November 14,19 2o 2001, during a telephone conference, ACC counsel advised counsel for Ecology and the Port that ACC intended to take the depositions of Ecology witnesses first, and that ACC would make every effort to do so in December. Declaration of Michael P. Witek in Support of ACC's Motion to Compel Inspection of Property and to Extend Discovery Schedule ("Witek Decl.") at ¶ 18. On November 21, 2001, ACC counsel sent an email to Ecology counsel, with a copy to Port counsel, listing the Ecology ACC'S MOTION TO EXTEND DISCOVERY HELSELL FETTERMAN LLP Rachael Paschal Osborn SCHEDULE - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Ol; ':,ZAL Seattle, WA98101-2509 Spokane, WA99201i AR…

THE PORT OF SEATTLE, ) (Section 401 Certification No. ) 1996-4-02325 and CZMA concurrency Respondents. ) statement, issued August 10, 2001, ) Reissued September 21,200], under No o ) 1996-4-02325 (Amended-I)) THIS MATTERhaving come before the Board on Appellant's Motion for14 Permission to File Overlength Reply Brief, and the Board having considered the matter, NOW, THERFORE it is hereby ORDERED as follows: Appellant ACC's Motion for Permission to File Overlength Reply Brief is GRANTED. DATED this day of October, 2001. Presiding Officer / Board Member G:LUkACCkPCHBorder-overlength.doc HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Missien Avenue ORDER PERMITTING OVERLENGTtt Seattle, WA 98101-2509 Spokane, WA 99201 REPLY BRIEF - 1 ORIGINAL AR 006784 OCt! - 8, 2001 EN Vi ).(L,_i_iv__i I-I_ARING5 0FFIq POLLUTION CONTROL HEARINGS BOARD FOR THE STATE OF WASHINGTON AIRPORT COMMUNITIES COALITION, ) ) No. 01-133 Appellant, ) No. 01-160 )

FOR THE STATE OF WASHINGTON -,-_,,,,, _ _ -,_ tM _i__'qTAL AIRPORT COMMUNITIES COALITION, ) No. 01-133 _|_:¢t_iI'qU " OFF][_II_, ) No. 01-160 Appellant, ) ) ACC'S REPLY MEMORANDUM IN v. ) SUPPORT OF ITS MOTION FOR A ) STAY DEPARTMENT OF ECOLOGY and )7 THE PORT OF SEATTLE, ) Section 401 Certification No. ) 1996-4-02325 and CZMA Respondents. ) concurrency statement, issued ) August 10, 2001, Reissued September ) 21, 2001, under No. 1996-4-02325 ) (Amended-I)) "'Our AAG (JM) [Joan Marchioro] has indicated she/the office will support any policy position we choose to adopt, but she is currently advising we require the water right. Part of the JM argument is that this "fix" under the 401 triggers the water code, and we need certainty around the "fix" for reasonable assurance. Also, JM says, unlike a 402 permit, the 401 calls in other state laws to help protect WQ -- this requirement for mitigation may be a key point." 2o Ray Hellwig's April 3, 2001, Notes, DOE Senior Management Team meeting (Ex. A to Eglick Decl). "Consequently, in drafting a 401 certification, the 401 program must be able to conclude that BMPs will actually result in compliance with WQSs.23 Email from Assistant Attorney General Ron Lavigne to Ann Kenny, et al., dated April 30, 1999 (Ex. L to Eglick Decl.). ORIGINAL INTRODUCTION Section401 of the Clean Water Act requires the state to certify that there is reasonable assurance that a proposal will not result in violation of state water quality…