TagPollution Control Hearings Board(1507)

v. ) APPELLANTS' REPLY ON MOTION IN ) LIMINE TO EXCLUDE LATE-PRODUCED STATE OF WASHINGTON, ) PLANS AND REPORTS DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) Exclusion of the Port and Ecology's post February 1, 2002, plans and reports identified in Appellants' Motion in Limine is required under the plain language of the Board's10 October 30 Pre-Hearing Order: For those plans or reports expected to be completed between November 16, 2001 and February 1, 2002, Respondents shall identify the estimated completion dates. If those plans and reports are completed on or before February 1, 2002, Respondents shall provide copies to Appellant ACC when complete. Ecology and the Port are prohibited from relying at the hearing upon any plan or report prepared after November 15, 2001 unless such plan or report is noted on the above-required list. Even if noted on the list, Ecology and the Port are prohibited from rel_ng at the hearing upon any plan or report prepared after February 1, 2002. Not surprisingly, the Port's response brief fails to quote or refer to the underlined portion of the Pre-Hearing Order. It was incorporated into the Pre-Hearing Order to keep the 401 Certification from becoming a moving target and avoid problems that had been encountered in other appeals of 401 certifications for significant projects, such as in Battle Mountain Gold ("BMG") where the project proponents continued to submit "last minute revisions" to stream flow depletion studies and mitigation plans. 2 AR 002187 t…

v. ) MOTION TO STRIKE THE PORT'S PRE- ) HEARING BRIEF STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) ) |2 The Port has offered a number of flimsy excuses for its over-length brief. Appellants therefore reply, briefly, as follows: 1. The Port dismisses Appellants' motion in general by stating that "focusing on formatting issues seems less than productive." Appellants wholeheartedly agree. In fact, Appellants believed that such formatting issues were resolved when, after the Port moved to strike ACC's Stay Brief, it turned out that the Port had manipulated the spacing of its brief and had submitted a grossly over-length brief itself. All parties agreed then to adhere to the19 ground rules in the Pre-hearing Order. The Port's failure to do so has forced Appellants to again "focus on formatting issues". 2. The Port does not directly respond to the observation, readily determined by looking at its brief and comparing it to the Word program, that it did not use double-spacing, but instead manipulated the program to fit additional lines on a page. The excuse that this manipulation is routinely done because it "allows the text to align with the numbers on the AR 002182 H EL S E L L FETTERMAN APPELLANTS' REPLY IN SUPPORT OF MOTION ALimitedLiabilityP...... hip TO STRIKE THE PORT'S PRE-HEARING BRIEF -1 ORIGINAL 1500PUGETSOUNDPLAZA P.0.BOX21846SEATI-LE,WA 98111-3846 PH:(206)292-1144 left-hand margin used in pleading paper" is spurious. The Board can readily determine what the Port has done…

Fact and Conclusions of Law in the case of Airport Communities Coalition v. Ecology and the Port of Seattle, PCHB 01-160. On September 6, 2002, the Board issued an order disposing of the Port of Seattle's Petition for Reconsideration. On September 6, 2002, the Port of Seattle (Port) filed a Petition for Judicial Review of Final Order of Pollution Control Hearings Board. This Petition was filed in King County Superior Court. On September 12, 2002, the Airport Communities Coalition (ACC) and Intervenor Citizens Against Airport Expansion (CASE) filed a Petition for Judicial Review. This Petition was filed in Thurston County Superior Court. On September 18, 2002, the Department of Ecology (Ecology) filed a Petition for Review of Agency Action. This Petition was also filed in Thurston County Superior Court. On September 27, 2002, Judge Hicks of the PCHB 01-160 1 ORDER GRANTING OF CERTIFICATE OF APPEALABILITY AR 000007 Thurston County Superior Court issued a ruling transferring venue to King County Superior Court. On September 12, 2002, ACC and CASE filed an Application for Direct Review to the Court of Appeals and requested the Board to issue a Certificate of Appealability to allow direct review by the Court of Appeals of the petition filed in Thurston County Superior Court (Cause No. 02-2-01549-0). On September 17, 2002, the Port of Seattle (Port) filed an Application for Direct Review and also requested the Board to issue a Certificate of Appealability for direct review of the petition filed in King County Superior Court (Cause…

Fact and Conclusions of Law in the case of Airport Communities Coalition v. Ecology and the Port of Seattle, PCHB 01-160. On September 6, 2002, the Board issued an order disposing of the Port of Seattle's Petition for Reconsideration. On September 6, 2002, the Port of Seattle (Port) filed a Petition for Judicial Review of Final Order of Pollution Control Hearings Board. This Petition was filed in King County Superior Court. On September 12, 2002, the Airport Communities Coalition (ACC) and Intervenor Citizens Against Airport Expansion (CASE) filed a Petition for Judicial Review. This Petition was filed in Thurston County Superior Court. On September 18, 2002, the Department of Ecology (Ecology) filed a Petition for Review of Agency Action. This Petition

March 18-29, 2002. The Board was comprised of Kaleen Cottingham, presiding, Robert V. Jensen, and William H. Lynch. The Appellant, Airport Communities Coalition (ACC), and Intervenor, Citizens Against Airport Expansion (CASE), challenge the Port of Seattle‘s (Port)

1. I am one of the attorneys representing Respondent Port of Seattle (the "Port") in this case. I have personal knowledge of the facts set forth in this declaration and would be competent to testify to them if necessary. 2. I was involved in the preparation and review of the Port's responses to public comments received in response to the JARPA application filed by the Port with the U.S. Army Corps of Engineers and the Department of Ecology (reference number 1996-4-02325). Attached to this Declaration as Exhibit A is a true and correct copy of the Port's General Responses to those comments, dated April 30, 2001. 3. In addition to its General Responses to public comments, the Port prepared specific responses to many of the comment letters received by the Corps and Ecology. For reference DECLARATION OF STEVEN G. JONES - 1 FOSTER PEPPER _.4 SHEFELMAN PLLC 1111 THIRD AVENUE, SUITE3400 SEATTLE,WASHINGTON98101-3299 206-447-4400 5027974601 ORIGINAL purposes, copies of Port's responses to comment letters received from Amanda Azous, Dr. Peter Willing, William Rozeboom, Dr. John Strand and Tom Luster are attached to this declaration as Exhibit B. Those responses were directed to specific comments in the various comment letters. Accordingly, in order to facilitate review of the Port's responses to individual letters, the comment letters to which the responses are directed have been included along with each of the responses. 3. Attached to this Declaration as Exhibit C is a true and correct copy of a letter sent on January 21,…

On December 27, 2000, the U.S. Army Corps of Engineers issued a second revised public notice concerning the Section 404 application under the Federal Clean Water Act for the proposed Master Plan Update improvements at Seattle-Tacoma International Airport. This document has been prepared to provide the regulatory agencies with responses to agency and public comments concerning this application from the Port of Seattle perspective. This document is organized as follows: I. Summary (Introduction and Summary of Changes in the Port's Application Since 1999) II. General Responses to Comments Ill. Response to Agency Letters • Response to Tom Luster's Memo to Julia Patterson • Response to Muckleshoot Tribe • Response to Airport Community Coalition communities and their Technical Consultants a. Helsell Fetterman h. Columbia Biological b. Stephen Hockaday i. Northwest Hydraulics c. GeoffGosling j. Norman Wildlife Consulting d. Thomas Lane Associates k. Paschal Osborn e. GeoSyntec I. Sheldon & Associates f. Azous Environmental m. Water Resource Consulting g. BioAnalysts n. Smith & Lowney IV. Responses to Citizens, Groups and Elected Officials - letters, emails, faxes, hearing cards and transcript V. Earlier Public Notice Comments and Responses (Prior to 1999 Public Notice) • Overview of how new material changes earlier responses • Earlier Public Comments and Responses Sections II through IV respond from the Port's perspective to comments received since the 1999 public notice. Section V contains the Port of Seattle's responses to all comments received prior to the 1999 notice. It is important to note that the responses to comments in…