TagPollution Control Hearings Board(1507)

v. ) ACC's MOTION FOR PERMISSION TO ) FILE OVERLENGTH REPLY BRIEF STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No. THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) slatement, issued August 10, 2001, Respondents. ) Reissued September 21,2001, under No. ) 1996-4-02325 (Amended- 1)) )

The Airport Communities Coalition (ACC) moves for summary judgment contending that, as a matter of law, reasonable assurance is lacking in this case because Ecology did not require the Port of Seattle (Port) to obtain a water right to implement its stormwater management and low flow mitigation plans. The ACC's motion should be denied. A water right is not necessary for Ecology to have reasonable assurance that water quality standards will be met. Further, Ecology properly did not require the Port to obtain a water right in this AR 005063 ECOLOGY'S RESPONSE TO ACC'S 1 ATTORNEYGENERALOF WASHINGTON EcologyDivision MOTION FOR SUMMARY JUDGMENT PO Box40117 REGARDING THE ABSENCE OF A Olympia,WA 98504-0117 WATER RIGHT FAX (360) 586-6760 case because the Port's stormwater management and low flow mitigation plans do not involve a beneficial use of water. II. STATEMENT OF FACTS The facts relevant to this motion previously have been set forth in declarations and briefing filed by Ecology and the Port in response to the ACC's Motion for Stay. See Declaration of Paul Fendt, Declaration of Ed O'Brien, Declaration of Ann Kenny, Declaration of Kelly Whiting, Declaration of Joe Brasher, Ecology's Memorandum in Opposition to the ACC's Motion for Stay, and Port of Seattle's Memorandum in Opposition to Motion for Stay. In addition, the Port has submitted a revised low flow mitigation plan pursuant to Condition I of the Clean Water Act § 401 Certification (§ 401 Certification).1 The revised plan estimates the project's impact on low flow in Walker Creek…

OF ECOLOGY and THE PORT OF SEATTLE ) ) Respondents. ) Intervenor/appellant Citizens Against Seatac Expansion (CASE) hereby concurs in ACC's Motion for Summary Judgment Regarding the Absence of a Water Right for the Third Runway § 401 Certification, and urges the Board to grant summary judgment in ACC's favor for the reasons discussed below. I. ADDITIONAL UNDISPUTEDFACTS As described in the Port's revised "Low Streamflow Analysis and Summer Low Flow Impact Offset Facility Proposal" ("Low Streamflow Analysis")submitted to Ecology in December, 2001: The Port's proposal is to collect excess stormwater during the rainy season, store it in underground vaults, and release the stored water continuously into each stream during the designated summer low-streamflow period at a rate equivalent to the calculated summer low-streamflow impact to that stream from planned Port projects. * * * SMITH ,S< LOWNEY) P.L.L.C. CASE'S RESPONSE BRIEF : _ 23, TEAsT-.o.. _T_EET _£ATTLE) WA cJ_ | '1 _'_ RE: WATER RIGHT- 1 (2_,6)_,6o-2_,B-. ORIGINAL ,. ooo 8 The facility, as designed, consists of two stormwater vaults (one providing water to offset flow impacts in Walker Creek and one vault providing water to Des Moines Creek). Each of these vaults stores stormwater during the rainy season to be released during the summer low-streamflow periods with features that are unique to low-flow vaults. The extra features consist of additional outlets and controls, floating discharge structures to maintain constant discharge rates, varying configurations to manage sediments,andadditionalwaterqualitymanagementfeatures(ventilationto facilitate aeration, provisions for filtration and mechanical aeration of discharges, and oil/water…

OF SEATTLE, a municipal corporation of the State of Washington,17 Respondents. I. RELIEF REQUESTED Pursuant to Civil Rule 12(b)(6), respondent Port of Seattle moves the Court for an Order dismissing Petitioners Airport Communities Coalition's and Citizens Against Sea-Tac Expansion's Petition for Review of Agency Action. Even accepting as true all of the facts alleged in the Petition for Review, there is no basis on which relief sought by the petition can be granted. Dismissal of this action is therefore appropriate. AR 005050 RESPONDENT PORT OF SEATTLE'S MARTEN BROWN INC. MOTION TO DISMISS 421 s. CAPITOL WAY SUITE 303OLYMPIA, WA 98501 PAGE 1 (360) 786-5057 II. STATEMENT OF FACTS In reviewing a CR 12(b)(6) motion to dismiss, the Court must accept as true the factual allegations of the complaint. Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977). All of the facts relevant to this motion are contained in Petitioners Airport Communities Coalition's and Citizens Against Sea-Tac Expansion's (collectively, "ACC's") Petition for Review of Agency Action. Those relevant facts, which the Port does not challenge, are as follows: • On August 10, 2001, the Washington Department of Ecology ("Ecology") issued an order that included a § 401 Water Quality Certification ("401 Certification") for the Port of Seattle' s proposed third runway at the Seattle- Tacoma International Airport. [Petition, ¶ 6.7.] ° On August 23,2001, ACC filed its notice of appeal of the 401 Certification to the Pollution Control Hearing Board ("PCHB"). [Petition, ¶ 6.7.] On September 12, 2001, ACC…

January 15, 2002 F E T T E R M A N peterJ. Eglick A.o.,eratLI_NVIRONMENTAL A Llm/l#([ t.illhi/itv P_n'lple_ _/lip HEARINGS OFFICE Sent via Fax and Mail Hon. Kaleen Cottingham Presiding Officer Pollution Control Hearings Board Office of Environmental Hearings 4224 6th Avenue SE Building 2, Rowe 6 Lacey, WA 98503 Re: PCHB No. 01-160, ACC v. Dept. of Ecology and Port of Seattle: Port's Request for Emergency Status Conference Dear Presiding Officer Cottingham: The Port's "emergency request for status conference" is ill-advised. A conference would not be appropriate until ACC has submitted its response briefs to the Port's lengthy motions (which are due on Thursday, January 17), and until the Board has had at least a day to review those responses. A rush to judgment in an "emergency" status conference will unfairly advantage the Port, which has piled the Board's desk high (once again, in violation of the prehearing order page limits and formatting requirements) with misrepresentations of the facts and the law. The basic problem here is that the Port's attorneys and experts, and Ecology's attorneys and experts, have all been on the site -- more than once. Every Ecology staffperson who has been asked (e.g., in deposition or otherwise) has endorsed the need for a site visit to get the project and proposal in context and to gain a better understanding of the Port's application and Ecology's decision. These site visits have occurred without the preconditions which the Port seeks to impose on ACC and without undue…

PORT OF SEATTLE, a nmnicipal corporation of the State of Washington, NO. 01-2-02386-9 Petitioner, AIRPORT COMMUNITIES COALITION'S AND CITIZENS AGAINST SEA-TAC v. EXPANSION'S APPLICATION FOR DIRECT REVIEW BY COURT OF STATE OF WASHINGTON, POLLUTION APPEALS, AND REQUEST PURSUANT CONTROL HEARINGS BOARD; AIRPORT TO RCW 34.05.518 FOR CERTIFICATE COMMUNITIES COALITION; CITIZENS OF APPEALABILITY OF POLLUTION13 AGAINST SEA-TAC EXPANSION; and CONTROL HEARINGS BOARD'S ORDER STATE OF WASHINGTON, DEPARTMENT GRANTING STAY OF ECOLOGY, (PCHB No. 01-160)

v. ) WITEK IN SUPPORT OF ACC'S ) RESPONSE TO MOTIONS TO STATE OF WASHINGTON, ) COMPEL AND LIMIT ENTRY DEPARTMENT OF ECOLOGY; and )10 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)) Michael P. Witek 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. Attached to my declaration as Exhibit A is a true and correct copy of ACC's November 26, 2001, Request for Entry upon Port Property. 3. Attached to my declaration as Exhibit B is a true and correct copy of The Port's December 24, 2001, Objections to ACC's Request for Entry. DECLARATION OF MICHAEL P. WITEK IN HELSELLFETTERMANLLP Rachael Paschal Osborn SUPPORT OF ACC'S RESPONSE TO a500 Puget Sound Plaza Attorney at Law MOTIONS TO COMPEL AND LIMIT ENTRY - 1 1325Fourth Avenue 2421 West Mission Avenue Seattle, WA98101-2509 Spokane, WA 99201 OR/G/NAt ,. oo,o 4. Attached to my declaration as Exhibit C is a true and correct copy of a December 12, 2001, letter from ACC counsel to Port counsel. 5. Attached to my declaration as Exhibit D is a true and correct copy of a December 12, 2001, email from ACC counsel to Port counsel. 6. Attached to my declaration as Exhibit E is a true and correct copy of a December6 18, 2001, email…

The disparity of access to information regarding the Port's proposed Third Runway cannot be disputed: the Port is the applicant, has access to all the underlying facts and supporting analysis, and controls access to the site, something that has been allowed to everyone but ACC. ACC's primary tool in obtaining information has been the Public Disclosure Act, RCW 42.17.250, et seq. ("PDA"). Through PDA requests, ACC has obtained the plans and reports submitted by the Port to Ecology and Ecology16 comments on them. Based upon these PDA documents, ACC and its experts have provided comments to17 Ecology and prepared declarations in support of ACC's Motion for Stay. PDA documents also show that when ACC and its experts submitted comments to Ecology, those comments were forwarded (sometimes within minutes) to the Port. 1 Now the Port seeks, among other things, an Order from the Board compelling ACC to regurgitate back to the Port documents already in its possession and to produce documents clearly irrelevant to Declaration of Michael P. Witek in Support of ACC's Response to Motions to Compel and Limit Entry ("Witek Decl."), Ex. M. ACC'S RESPONSE TO MOTION TO COMPEL HELSELL FETTERMAN LLP Rachael Paschal Osborn PRODUCTION OF DOCUMENTS AND RESPONSE 1500 Puget Sound Plaza Attorney at Law TO SUBPOENAS DUCES TECUM - 1 ....... 1325Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL whether Ecology had reasonable assurance to issue the 401 Certification. Considering all the1 circumstances, the Board should deny the Port's motion…

v. ) TO COMPEL DEPOSITIONS AND FOR ) LIMITATION ON ENTRY ONTO STATE OF WASHINGTON, ) LAND DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) O Respondents. ) ) The Port controls the site, data, and, reports which are the subject of this case. ACC experts have provided comments based on the DOE public record (consisting largely of Port submissions and DOE comments on them), but have never been allowed access to the site. DOE staff have freely acknowledged its importance here. The Port's studied refusal to allow ACC access suggests that the Port recognizes its importance as well and has gambled on forcing ACC experts to testify by deposition and in prefiled testimony (now due in less than a month) without access to the site. On November 26, 2001, before any depositions were agreed upon or noted--and long before any party knew whether a Stay would be granted--ACC served on the Port a routine CR 34(a)(2) Request for 2O Entry. The Request suggested that the Port set three dates no later than mid-January. The Port responded with a progressive cascade of conditions, refusals, and quibbles, but offered no dates. Now, almost two months later, the Port has demanded that, without benefit of site access, ACC experts appear for ACC'S RESPONSE TO MOTION TO HELSELLFETTERMANLLP Rachael Paschal Osborn 1500PugetSoundPlaza Attorneyat Law COMPEL DEPOSITIONS AND FOR 1325FourthAvenue 2421WestMissionAve. LIMITATION ON ENTRY ONTO IxAND - 1 .... Seattle,WA98101-2509 Spokane,WA99201 ORIGINAL AR004784 depositions and that ACC proceed with depositions of…

TO: The Port of Seattle and its counsel, Roger Pearce and Steven G. Jones; Linda Strout and Traci Goodwin; Jay J. Manning and Gillis E. Reavis; and TO: Department of Ecology and its counsel, Joan M. Marchioro, Thomas J. Young and JeffB. Kray. Please take notice that Airport Communities Coalition, without waiving objection as to improper service, jurisdiction, or any other lawful objection, hereby enters its appearance in the above-entitled action by and through its attorneys, Michael P. Witek of Helsell Fetterman LLP, and requests that all papers or pleadings in this cause, except original process, be served upon him at the address stated below. DATED this ['] day of January, 2002. HELSELL FETTERMAN LLP By: AR 004783 Michael P '_"ek, _vVSBAJ¢'_'6598 Attorneys for Appellant G:LULACCPCHB_APPEARANCE NOTICE OF APPEARANCE - 1 _,_,,. HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 0_ | t_| L| A 11325 Fourth Avenue 2421 West Mission Ave. _1_ I _1_1 l__attle, WA 98101-2509 Spokane, wa 99201 PCHB148004783