TagPollution Control Hearings Board(1507)

judgment in favor of the Port on Agreed Issue No. 14 ("Did Ecology and the Port comply with SEPA?"). ACC claims that Ecology's 401 Certification is invalid because the Port and Ecology failed to comply with the State Environmental Policy Act ("SEPA"). In particular, ACC claims that the environmental impact statements, and other environmental documents, issued for the Port's Master Plan Update development actions by the Port and Federal Aviation Authority ("FAA") are legally inadequate and that a supplemental environmental impact statement must be prepared. Agreed Issue No. 14; Notice Of Appeal, p. 41. With respect to Ecology, ACC claims that Ecology "failed to act" to require the Port to prepare a supplemental environmental impact statement. ACC makes this claim ORIGINAL PORT'S MOTION FOR PARTIAL SUMMARY FOSTER PEPPER _ SItEFELMAN PLLC JUDGMENT ON SEPA ISSUE - 1 1111 TmRD AVENUE,SUIT_3400 SEATTLE,WASrImGTON98101-3299 ,o_,,,_,.o_ AR 003756 206-4474400 .... even though it is clear that Ecology's actions (a 401 certification and a certification of consistency with the Coastal Zone Management Program) are exempt from SEPA's requirements. WAC 197-11- 800(10);WAC 197-11-855(3). A review of the extensive environmental review conducted by the FAA and Port will show the substance of ACC's claims have no merit. (Relevant portions of that environmental review are discussed below and attached to the accompanying Declaration of Michael Feldman.) However, the Board does not need to reach the substance of the FAA's and Port's environmental review in order to grant summary judgment on this issue, because the Board lacks jurisdiction to…

v. ) MODIFYING DUE DATES FOR JOINT s ) STATUS REPORT AND FOR PROVIDING DEPARTMENT OF ECOLOGY and ) BOARD WITH ESTIMATE OF TIME THE PORT OF SEATTLE, ) NEEDED FOR HEARING ) Respondents. ) (CLEAN WATER ACT SECTION 401 _Z ) CERTIFICATIONS #1996-4-02325, #1996-4- ) 02325 (AMENDED-I)) :3 ;THE PORT OF SEATTLE, ) ) Appellant, )

courtof its concernswith some of the argumentsraisedby the Port of Seattle's Motion to Set Aside Agency Action. This Response is not intendedto be a complete responseto the Port's motion. Failure to address some of the Port's arguments should not be construed as a concession by the PCHB. Rather,the PCHB is merely limiting its response in recognitionof the principalthat AR 003718 IK)IAJLFnON CONTROL HEARINGS I A_ _ OFW_SHnqGTON BOARD'S RESI=ONSE TO MOTION TO Il__ _ SErO_40,00 SET ASIDE AGENCY ACTION _ WA u_,.,otoo p_ ,,_ _a_, ,_ ,__ "i: asia quasi-judicial agency, it has a limited role when a party requests judicial review of one of its Orders under the Administrative Procedures Act (APA). Typically, the party that prevailed in the PCHB case continues to advocate in favor of its position on APA judicial review. In Kaiser Aluminum v. Labor and Industries, 121 Wn.2d 776, 781,854 P.2d 611 (1993), the State Supreme Court concluded a quasi-judicial board is like a trial court in the respect that such a board does not as a general matter participate on judicial review merely to argue in support of the substantive correctness of the order being reviewed. However, a quasi-judicial board has an interest in its procedures and rules, and may address such issues on judicial review. 121 Wn.2d at 781,782. Likewise, quasi-judicial boards may participate in judicial review proceedings to address issues relating to the quasi-judicial board's jurisdiction. Snohomish County v. State, 69 Wn. App. 655, 661-62, 850 P.2d 546, review denied, 123 Wn.2d…

Marchioro, Thomas J. Young, and Jeff B. Kray, Assistant Attorneys General, submit this Memorandum in Support of the Port of Seattle's ("Port") Motion for Partial Summary Judgment. Ecology agrees that Agreed Issue No. 14, "Did Ecology and the Port comply with SEPA", is an issue ripe for summary judgment. Because both Ecology and the Port have, as a matter of law, complied with SEPA, Ecology requests that the Pollution Control Hearings Board ("Board") grant the Port's Motion. AR 003709 MEMORANDUMINRESPONSETO 1 ATTORNEYGENERALOFWASHINGTON Ecology Division PORTOFSEATTLE'SMOTIONFOR POBox40117 PARTIAL SUMMARY JUDGMENT Olympia, WA 98504-0117 FAX (360) 586-6760 The subject of this appeal is Ecology's issuance of Order No. 1996-4-02325 (Amended-l) ("Order") granting a 401 water quality certification pursuant to Clean Water Act § 401, 33 U.S.C. § 1341, and a certification of compliance with the Coastal Zone Management Act ("CZMA"), pursuant to CZMA § 307(c)(3), 16 U.S.C. § 1456(c)(3). Ecology issued this Order upon the Port's completion of an Environmental Impact Statement ("EIS"), a Supplemental Environmental Impact Statement ("SEIS"), and also the Port's addition of addenda to address newly discovered information regarding additional wetlands. See Feldman Decl., ¶¶ 2,3,8, submitted with the Port's Motion for Partial Summary Judgment on SEPA Issue. The Port, as the lead agency under SEPA, acted in accordance with the substantive and procedural requirements of SEPA. Ecology, as an agency with jurisdiction, issued its Order upon consideration of the environmental impacts evaluated in the Port's SEPA documents. Appellant's claims that the conditions imposed by Ecology in its Order…

Port's pending Motion for Partial Summary Judgment on SEPA Issue Dear Ms. Cottingham, am writing to ask for expedited resolution of an issue relating to timing of service of briefs. On February 8, 2002, the Port filed its Motion for Partial Summary Judgment on SEPA Issue and attempted to serve the Appellants. Copies of the motion were received by Helsell Fetterman and Smith & Lowney, however, I did not receive a copy of the motion, memorandum, or the accompanying materials on that date. Apparently, the Port attempted to serve the memorandum by facsimile, but the fax was not received at my offices. I received the materials on Monday, February 11, 2002. ACC intends to move to strike the Port's motion as untimely, as it was not served on all counsel before the deadline established in the Board's Pre-hearing Order (February 8, 2002) for filing and serving dispositive motions. However, in an abundance of caution we also intend to file a response. Because the memorandum was not received at my office until February 11, we calculate the time for the ACC-CASE response, which will be filedjointly, to be 10 days from that date, or February 21. Consistent with the directive of the Pre-Hearing Order, I attempted to resolve this issue with Mr. Pearce. Attached are two letters: mine to Pearce and his response. I also attempted to contact Mr. Pearce this morning to arrange a conference call with your office, however, he is attending depositions and not available until an unknown…

THE PORT OF SEATTLE, ) Runway and related projects at Seattle ) Tacoma Intemational Airport) Respondents. ) ) Michael P. Witek declares as follows: 1. I am one of the attorneys 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 tree and correct copies of the following documents:19 Exhibit A: Cover page, table of contents, executive summary and introduction to the December 2001, Low Flow Analysis for the Third Runway; Exhibit B: Page 28, 54 from the Department of Ecology SEPA Handbook (1998 Ed.) Publication No. 98-114; AR 003649 DECLARATION OF MICHAEL P. WITEK IN HELSELL FETTERMAN LLP Rachael Paschal Osborn SUPPORT OF ACC'S RESPONSE TO PORT 15ooPugetSound Plaza Attorneyat Law MOTION FOR PARTIAL SUMMARY 1325 Fourth Avenue 2421 West Mission Avenue JUDGMENT ON SEPA ISSUE- 1 sp_EnL }^_ !ago1Seattle, WA 98101-2509 .............. FETTEKMAN OR;GIiAL A Limited Liability Partnership1500PUGETSOUNDPLAZA P.O.BOX21846SEATTLE,WA 98111-3846PH:(206)292-1144 Exhibit C: Port of Seattle's Notice of Appeal of Ecology's 1998 § 401 Certification and Coastal Zone Management Act Concurrence for the Third Runway Project; Exhibit D: SEPA determination ofnonsignificance, dated October 17, 2001, from the Port of Seattle for the TRACON facility; and Exhibit E: Excerpt from Deposition Transcript of Tom Luster, pp. 62-68. declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. ,_/9 DATED this 20th day of February, 2002, at Seattle, Wash,inl_n. ,/Q I _ ._Michael P. Witek g:ilu_accpchb_summaryjudgmentiwitek-decl-msjsepa.doc…

v. ) THE PORT OF SEATTLE'S MOTION ) FOR PARTIAL SUMMARYJUDGMENT RE: SEPA STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) I. INTRODUCTION AND SUMMARY OF RESPONSE The Port's motion for summary judgment on SEPA issues fundamentally misrepresents17 both the substance ofACC's SEPA issues, and the nature of the SEPA review conducted to date.18 In particular, the issue before the Board is not whether the Port's FEIS and SEIS were legally 2o inadequate at the time they were adopted in 1996 and 1997, respectively. It is, rather, whether, in light of the current scope of the Port's proposal and the significant new plans it has proposed to accomplish it, Ecology correctly found the Port in compliance with SEPA for purposes of CZMA certification (and Clean Water Act § 401 reasonable assurance). AR 003636 r,-.......'i/.'..... _ HELSELL FETTERMAN A LimitedLiabilityPartnership 1500PUGETSOUNDPLAZA P.O.BOX21846 SEA'I-I'LE,WA 98111-3846 PH:(206) 292-1144 Although Ecology's process of concurring on a CZMA certification may itself be categorically exempt from SEPA, the substantive CZMA decision itself is not. Under CZMA, Ecology had to determine whether the Port was in compliance with SEPA. 1 Thus, the SEPA issues raised by ACC arise as one of the several laws which come to bear on the question of CZMA compliance in the parties' Stipulated Issue No. 2:6 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…

attorneys, Joan M. Marchioro, Thomas J. Young, and Jeff B. Kray, Assistant Attorneys General, submits this final list of witnesses and exhibits as indicated below. II. WITNESSES AR 003607

Pursuant to the Board's October 30, 2001, Pre-Hearing Order and January 22, 2002, Discovery Order and Modification of Pre-Hearing Deadlines, appellant Airport Communities Coalition ("ACC") submits the following Exhibit List.14 ACC anticipates that this list will overlap with the Port's and Ecology's exhibit lists. Per the Board's October 30 Order, the parties will coordinate to eliminate duplicate exhibits, as well as to stipulate (or not) to each exhibit's authenticity, by March 8, 2002, at which time another list will be prepared and submitted which will be numbered as suggested in the Preheating Order. This list is submitted with the following caveats: A. Exhibits to ACC's experts' pre-filed testimony (due February 22) may be added to ACC's March 8 exhibit list (learned treatises, articles, and similar references cited by ACC experts22 are not listed as separate exhibits. AR 003556 B. As of February 20, six depositions remain to be taken or completed and reported (Ann Kenny, 2/20; Charles Ellingson, 2/20; Scott Tobiason, 2/20, Pat Lucia, 2/22; Kelly Whiting, ACC's EXHIBIT LIST- 1 HELSELL FETTERMAN LLP Ra_sbom # _ _ 1500 Puget Sound PlazaO i]NAL 1325 Fourth Avenue l_r_eEt l_l_i_Nve.Seattle, WA98101-2509 a$_lit_t_Ol 1500PUGETSOUNDPLAZA P.O.BOX21846 SEAI-I'LE,WA 98111-3846 PH:(206)292-1144 2/28; and Joe Stohr, 2/28). Additionally, ACC has recently been provided with large volumes of documents and computer disks from Hart Crowser, Parametrix and their subcontractors produced by the Port pursuant to ACC's discovery requests. ACC also continues to receive documents from the Department of Ecology at irregular intervals. Accordingly, ACC may supplement and/or modify…

ACC may call the following as witnesses at the hearing on the merits of this matter. ACC reserves the right to modify this list in response to issues, witnesses or exhibits disclosed in discovery (which" • 1is ongoing ) or proposed or raised by the Port or Ecology, and/or for purposes of rebuttal. ACC further reserves the right to call all other witnesses listed by other parties or who have or will submit testimony, written or oral, in this appeal.16 Witnesses from Department of Eeology: Ann Kenny Ray Hellwig Kevin Fitzpatrick John Drabek Erik Stockdale Ching-Pi Wang AR 003553 1As of February 20, six depositions remain to be taken or continued (Ann Kenny, 2/20; Charles Ellingson, 2/20; Scott Tobiason, 2/20, Pat Lucia, 2/22; Kelly Whiting, 2/28; and Joe Stohr, 2/28). Additionally, ACC has recently been provided with large volumes of documents and computer disks from Hart Crowser, Parametrix and their subcontractors produced by the Port pursuant to ACC's discovery requests. Because the discovery deadline coincides with the date for submission of this Witness List, ACC has not yet been able to evaluate fully whether additional witnesses should be listed. ACC'SUPDATEDPRELIMINARYLISTOF HELSELLFETTERMANLLP _o__ Ra I sborn WITNESSES- 1 1500Puget SoundPlaza . OR;GINAL E_ ]I'Wel_tl_I/_il_n_ve.Seattle,WA98101-2509 AS_i_li_t_)_O]1500PUGETSOUNDPLAZA P.O.BOX21846 SEATTLE,WA 98111-3846 PH:(206)292-1144 Tom Fitzsimmons Gordon White Bob Barwin Chtmg Ki Yee Steve Alexander John Wietfeld Roger Nye Dave Garland Pete Kmet Dan Swenson Joe Stohr George Schlender Ed O'Brien Douglas Rushton Witnesses from Port of Seattle: Paul Agid Keith Smith Joe Brascher Donald Weitkamp13…