TagPollution Control Hearings Board(1507)

STATE OF WASHINGTON, ) 36(b)(6) DESIGNATED WITNESSEES DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) (Proposed) ) Respondents. ) Airport Communities Coalition and Citizens Against Sea-Tac Expansion ("Appellants") having filed a Motion to Publish Depositions of Ecology Managers and CR 36(b)(6) Designated Witnesses in this matter; the Board, having reviewed the memoranda filed in favor of and in opposition to the motion, and any reply thereto and being otherwise informed, IT IS HEREBY ORDERED: 1. Appellant's Motion to Publish Depositions of Ecology Managers and CR 36(b)(6)20 Designated Witnesses is GRANTED. 2. The depositions of Ann Kenny, Erik Stockdale, Gordon White, John Drabek, Ray Hellwig, Tom Fitzsimmons, Kevin Fitzpatrick and Peter Kmet are admitted into the record for any purpose. 2s AR 002259 HELSELLFETTERMANLLP RachaelPaschalOsborn ORDERGRANTINGAPPELLANTS' MOTIONTO 1500PugetSoundPlaza Attorneyat Law PUBLISHDEPOSITIONSOFECOLOGYMANAGERS& 1325FourthAvenue 2421WestMissionAve. CR36(b)(c)DESIGNATEDWITNESSES- 1 Seattle,WA98101-2509 Spokane,WA99201 SO ORDERED this day of ,2002. POLLUTION CONTROL HEARINGS BOARD KALEEN COTTINGHAM, Presiding ROBERT V. JENSEN, Member WILLIAM LYNCH, Member Presented by: " Peter J. Eglick, WSBA No. 8809 Kevin L. Stock, WSBA No. 14541 Michael P. Witek, WSBA No 2659_ . . R_cl_aelPaschalOsborn,WSBA Neo.21618 Attorneys for Airport Communities Coalition AR 002260 HELSELLFETTERMANLLP RachaelPaschalOsborn ORDERGRANTINGAPPELLANTS'MOTIONTO 1500PugetSoundPlaza AttorneyatLaw PUBLISHDEPOSITIONSOFECOLOGYMANAGERS& 1325FourthAvenue 2421WestMissionAve. CR 36(b)(c)DESIGNATEDWITNESSES- 2 Seattle,WA98101-2509 Spokane,WA99201 Approved as to Form; Notice of Presentation Waived: PORT OF SEATTLE Linda J. Strout, General Counsel, WSBA No. 9422 Traci M. Goodwin, Senior Port Counsel, WSBA No. 14974 FOSTER PEPPER & SHEFELMAN PLLC Roger A. Pearce, WSBA No. 21113 Steven G. Jones, WSBA No. 19334 BROWN REAVIS…

1. I am over the age of 18, am competent to testify, and have personal knowledge of17 the matters set forth in this declaration, and am competent to testify thereto. 2. Attached to my declaration as Exhibit A is a true and correct copy of an email 2o thread covering the dates of November 28, 2001 and November 29, 2001, containing a discussion of CR30 (b)(6) issues. DECLARATION OF MICHAEL P. WITEK IN HELSELL FETTERMAN LLP RachaelPaschalOsborn SUPPORT OF APPELLANTS' MOTION TO 1500PugetSoundPlaza Attorneyat Law PUBLISH DEPOSITIONS - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 AR 002237 3. Attached to my declaration as Exhibit B are true and correct copies of a letter z dated December 6, 2001 from Michael P. Witek to Ms. Joan Marchioro with the attached deposition notice. 4. Attached to my declaration as Exhibit C is a true and correct copy of a letter dated December 11, 2001, from Thomas Young to Michael P. Witek which responds to the December6 6, 2001, letter and deposition notice. 5. Attached to my declaration as Exhibit D is a true and correct copy of a letter dated February 12, 2002, from Michael P. Witek to Ms. Joan Marchioro and Mr. Thomas J. Young, asking the Attorney General's office to designate witnesses pursuant to CR30(b)(6). 6. Attached to my declaration as Exhibit E is a true and correct copy of a February 15, 2002 letter from Thomas Young to Michael P. Witek responding…

STATE OF WASHINGTON, ) MANAGERS AND CR 30(b)(6) DEPARTMENT OF ECOLOGY; and ) DESIGNATED WITNESSES THE PORT OF SEATTLE, ) ) Respondents. ) )

The Board should deny Appellants' motion to strike the Port of Seattle's prehearing18 brief. ACC and CASE decided to combine their respective pages so they could jointly file a 60- page brief, thereby assuming that the 30-page limit amounted to a 60-page "per side" page limit. More significantly, however, ACC and CASE made extremely liberal use of footnotes - 117 of them - to squeeze in additional text. The footnotes are in ten-point type, rather than 12-point,23 and were single- spaced. The footnotes were not reserved for citations or quotes; instead, they contain a great deal of argument that should have been placed in the main body of the brief. Had AR 002227 PORT OF SEATTLE'S RESPONSE TO APPELLANTS' BROWNREAVIS&MANNINGPLLC 421 S. CAPITOLWAY,SUITE303 MOTION TO STRIKE THE PORT'S PRE-HEARING BRIEF OLYMPIA,WASHINGTON98501 PAGE 1 (36o) 786-5057 those footnotes appeared as normal double-spaced text, Appellants' brief would have been 12-15 pages longer than it was. Although the Port believed that ACC's manipulation of the briefing guidelines was inappropriate, the Port determined that filing a motion to strike ACC's brief would divert everyone's attention, including the Board's, from the merits of the case. The parties are working very hard to prepare for trial, so that the evidence on the merits can be presented efficiently and persuasively. Focusing on formatting issues seems less than productive. The Port's counsel used "exactly 24-point" line spacing, as many attorneys do, because it allows the text to align with the numbers on the left-hand margin used in pleading…

and inaccurate reading of the Board's prehearing order and of the transcript from the preheating conference that preceded issuance of that order. As is clear from a close review of the prehearing order and the transcript from the conference, the Board has already specifically rejected the position taken in Appellants' motion. None of the exfiibits they seek to exclude are ] "untimely" under the Board's order. Appellant's motion should be denied. In its October 30, 2001 prehearing order, the Board required Ecology and the Port to identify certain plans and reports by November 15, 2001, and to complete those plans and reports by February 1, 2002. These deadlines do not apply to all plans and reports, as Appellants _'] contend, but to a very specific subset: those plans and reports prepared or expected to be PORT'S RESPONSE TO APPELLANT'S MOTION IN LIMINE FOSTER PEPPER _d SHEFELMAN PLLC TOEXCLUDE"LATE-PRODUCED"PLANSANDREPORTS- 1 1111 TulsaAVENUE,SUITE3400 SEATTLE, WASHINGTON 98101-3299 206-447-4400 AR 002212 prepared "pursuant to the §401 Certification." None of the 17 documents that Appellants seek to exclude were prepared "pursuant to the §401 Certification," and consequently none should be excluded. In fact, many of the 17 documents that Appellants seek to exclude are neither "plans" nor "reports." Several of them are figures (documents 1-13) or compilations of analytical data (documents 8 and 9). Others include a memorandum containing comments (document 14) and an interlocal agreement between the Portand Ecology (document 17).7 Appellants quote the relevant provision from the Board's preheating order, but they ignore…

On the last working day before trial, ACC has filed a motion under CR 32(a)(2) to add over a thousand pages of deposition transcripts to the record in this matter, in lieu of filing direct testimony. This motion should be denied. ACC has not shown that the depositions are admissible, that these witnesses fall within the terms of the rule, and ACC failed to timely file this request pursuant to the Board's pre-hearing order. II. AUTHORITY AND ARGUMENT A. CR 32(a) Requires That Deposition Testimony Be Admissible Before A Motion To Publish Can Be Granted AR 002206 CR 32(a) states: At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence ECOLOGY'SRESPONSETOACC'S 1 ATTORNEYGENERALOFWASHINGTON Ecology Division MOTIONTOPUBLISHDEPOSITIONS POBox40117 Olympia, WA 98504-0117 ORIGINAL FAX(360)586-6760 applied as though the witness were then present and testifying, may be used against any party who is present or represented at the taking of the deposition or who had reasonable notice thereof .... " ACC ignores this language in its motion, instead citing CR 32(a)(2). Plainly, however, the introductory language to the rule applies to all the subparts, including subpart two. Under this language, a deposition is admissible only if the testimony is admissible under the rules of evidence. See 8A Charles A. Wright, et al., Federal Practice and Procedure § 2151 (1994). ACC has made no showing that the testimony it seeks to introduce is admissible.…

Seattle's Response to Appellant's Motion in Limine to Exclude "Late-Produced" Plans and Reports. DATED this _--x_'_day of March, 2002. CHRISTINE O. GREGOIRE (____.._..._ AR002205 1_lJEF ___k_ Y, 9ES.B_ # 22174 JOAN]M. MARCHIORO, WSBA # 19250 THOMAS J. YOUNG, WSBA # 17366 Assistant Attorneys General Attorneys for Respondent State of Washington Department of Ecology (360) 586-6770 ECOLOGY'S RESPONSE TO 1 ATTORNEYGENERALOFWASHINGTONEcologyDivision APPELLANTS' MOTION IN LIMINE TO vo Box40117 EXCLUDE "LATE-PRODUCED" PLANS Olympia,WA98504-0117 AND REPORTS ORIGINAL FAX(360) 586-6760 PCHB059002205

ACC has filed a motion in limine to exclude the testimony of Dave Garland on the grounds that ACC allegedly was unaware that Mr. Garland would be testifying regarding the Port's December 2001 Low Flow Plan. This motion should be denied. Contrary to ACC's claims, it has long been aware that Mr. Garland was reviewing that plan and would be offering testimony regarding his review. Moreover, ACC has had, and continues to have, the opportunity to depose Mr. Garland regarding his testimony. AR 002201 ECOLOGY'SRESPONSETOACC'S 1 ATTORNEYGENERALOFWASHINGTON Ecology Division MOTIONTOEXCLUDETESTIMONY 1,0Box40117 FROM DAVE GARLAND Olympia, WA 98504-0117 ORIGINAL FAX(360)586-6760 II. STATEMENT OF FACTS Mr. Garland's answers to interrogatories specifically state that he will be testifying regarding "his review of the integration of the groundwater modeling performed by the Port for the embankment fill as it relates to the Port's low flow mitigation plan." See Ex. A attached to Declaration of Rachel Pascal Osborne in Support of ACC's Motion in Limine. ACC deposed Mr. Garland on January 9, 2002. Ex. C attached to Declaration of Rachel Pascal Osborne. At his deposition, Mr. Garland testified regarding his review of the Port's groundwater modeling and stated that he thought he would be reviewing the Port's 2001 Low Flow Plan. Id. Other witnesses also testified at deposition that Mr. Garland was reviewing the December 2001 Low Flow Plan, including Ann Kenny on February 20, 2002, and Kelly Whiting on February 28, 2002. Exs. F & H attached to Declaration of Rachel Pascal Osborne. In…

v. ) APPELLANTS' REPLY ON MOTION TO ) PUBLISH DEPOSITIONS OF ECOLOGY STATE OF WASHINGTON, ) MANAGERS AND CR 30(b)(6) DEPARTMENT OF ECOLOGY; and ) DESIGNATED WITNESSES THE PORT OF SEATTLE, )7 ) Respondents. ) CR 32 is unequivocal that the deposition of an "officer, director, or managing agent" may be used for any purpose at hearing. See Wright, Marcus & Miller, Federal Practice and Procedure, 8A Civil 2d § 2145 (1994 ed.) ("Rule 32(a)(2) allows the deposition of a party to be used by an adverse party for any purpose. The same free use may be made of the deposition of anyone who at the time of taking of the deposition was the officer, director, or14 managing agent of a public or private corporation, partnership, association, or governmental agency"). The mechanism by which the depositions are entered as testimony in the record is known as publication. This normally occurs as a routine matter "at trial" pursuant to CR 32(a). ACC noted its motion to publish in advance to save time at the hearing. 1 Ecology acknowledges that Ecology Director Tom Fitzsimmons surely falls within the Rule 2, as does Gordon White (Director of the Shorelands and Environmental Assistance Program) and Ray Hellwig (Director of Northwest Regional Office), but then asserts "objections" to these and the other depositions -- none based on actual law or supported by AR 002197 Port and Ecology counsel are all experienced practitioners under Washington and parallel federal rules and are well aware of how depositions…

v. ) SUPPORT OF MOTION IN LIMINE TO ) EXCLUDE TESTIMONY OF ECOLOGY STATE OF WASHINGTON, ) WITNESS DAVE GARLAND DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) ) Ecology issued 401 certifications dated August 10 and again on September 21. In each instance it certified that it had at the time of issuance reasonable assurance that Water Quality Standards would not be violated. Ecology and the Port nevertheless asked the Board to allow them to continue to produce and offer new reports and plans supporting the 401 for a full half a year after their issuance. To compensate for the disadvantage this created for Appellants, the Board set a February 1, 2002 cut-off date for the creation of new reports and plans, and allowed a special discovery period, ending February 28, for Appellants to discover evidence and witness opinions relating to post-September 21 documents which were properly disclosed and produced. Discovery relating to Ecology witness Kelly Whiting (from King County DNR) shows how this process worked. In his original deposition on December 20, 2001 Mr. Whiting indicated he intended to testify regarding the Port's 12/17/01 Low Flow Plan but had not yet completed his review. Pursuant to the Board's Pre-Hearing Order, Mr. O_ Whiting's deposition was continued until February 28, 2002, the last day of discovery. The x-¢N Iz HELSELL O, JiL""_ ' _ FETTERMAN APPELLANTS' MOTION IN LIMINE TO A Limited Liability e ........ hip EXCLUDE TFC3TIMONY FROM DAVE GARLAND - 1 1500PUGETSOUNDPLAZAR0.BOX21848…