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Attorneys for the Airport
Communities Coalition, Citizens Against
Sea-Tac
Expansion,
Port of
Seattle, & Department
of Ecology will appear before the nine Justices of the
Washington State Supreme Court on Tuesday, November
18 for oral argument on the State’s
water-quality certificate for third-runway work. An hour
has been set
aside for argument, probably starting between 9.45 and
10 a.m. in the Temple of Justice,
Olympia. No new evidence, witnesses, or
public comments will be heard, only legal arguments.
So there are no plans for
a chartered bus trip to Olympia. However, the arguments
will probably be presented ‘live’ through the
Internet, www.tvw.org. If not webcast live, a voice record
of the proceedings will almost certainly be posted in tvw’s
archives of Supreme Court proceedings at a later date. Immediate decision not expected An immediate decision is not expected. The usual practice
is for the Court to issue a written decision several weeks
after oral argument, after consideration of the argument,
and, in this case, the nine separate written legal memoranda
(briefs) on file. Under sec. 401 of the federal Clean Water Act, before
the Port of Seattle could obtain permission from the U.S.
Army Corps of Engineers to destroy wetlands with third-runway
fill, the Port had to obtain a certificate from the State
to the effect that the work would likely not violate State
water-quality standards. The Port’s first application for this certificate,
filed in December 1996, failed. The second (revised) application
was filed in September 1999. It too was inadequate, & the
Port withdrew it rather than have Ecology deny it. On a
third try, the certificate, with conditions, was issued
by the Department of Ecology in August 2001. Airport Communities
Coalition (ACC) experts advised that the conditions were
not adequate to protect water quality, & so an appeal
was taken to the state Pollution Control Hearings Board
by ACC, joined by C.A.S.E. Court will review rulings of state
Pollution Control Hearings
Board After a two-week trial, that Board
ruled in August 2002 that the conditions were inadequate, & imposed
16 additional requirements, designed to give assurance
that the runway
work would actually be in compliance with State standards.
It is that ruling which is under challenge now in the Supreme
Court. The Port of Seattle & the Department of Ecology will
argue that the certificate was fine as it was, before the
Board acted, & that the Board exceeded its legal authority, & went
beyond scientifically defensible requirements. In particular,
the Port & Ecology claim that the Board went too far
in relying on its own expertise, & the testimony & other
evidence from the two-week trial. The Board should have
relied on Ecology's expertise, not its own, they say. The Board itself, very unusually, has filed a brief (written
argument) with the Court, explaining the legal authority
for its methods of making decisions. However, the Board
will not be represented at the oral argument. ACC & C.A.S.E. support the
16 conditions added by the Board, but they will tell
the Court that Board should
have imposed even more stringent conditions on the project. The appeals focus on two central,
but highly technical, disputes: how much pollution to
allow in fill materials
for the runway, & how to deal with the immediate impact
of the project on local streams. How much pollution in the runway fill? The runway embankment eventually
will require 19.84 million cubic yards of fill. About
one-fourth of this amount has
been brought in, leaving about 15 million yards to go.
The Port, with Ecology's concurrence, wants to be able
to use material contaminated with arsenic, lead, petroleum
by-products, & other pollutants. The community groups
want clean fill, not materials already contaminated elsewhere.
From the Port's point of view, it is ultimately all about
money. It is cheaper to accept dirty fill from clean-up
sites (as has already happened in this project). It is
cheaper to buy fill that has been dusted with arsenic & lead
fall-out from the old smelters at Ruston & Everett
than clean materials from farther away. It is cheaper to
do fewer tests, & to use less-rigorous tests. The Pollution Control Hearings
Board ruled that contamination in the fill should not
exceed natural background levels.
Among other things, that eliminates fill contaminated by
petroleum by-products, leading the Port to claim that gasoline
is a naturally-occurring substance in the Central Puget
Sound! The Board did not agree. The Port argues that this "natural
background" standard is not required to prevent degradation
of water quality, & that the law does not allow the
Board to impose such a rule. The community groups, of course,
argue just the opposite. The "poster child" in this dispute is arsenic.
Arsenic is a cumulative & deadly poison. Even at low
exposure, it builds up in the human body, until it reaches
toxic levels - often only noticeable after decades.
There are no easy treatments for arsenic poisoning. The
substance occurs naturally in many parts of the world,
including Western Washington, though at very low, non-hazardous
concentrations. Much more arsenic also occurs throughout
the coastal part of the Central Puget Sound region, as
a by-product of many years of unregulated smelter operations
at Ruston (Tacoma) and at Everett. This means that most
near-by gravel pits are likely to have arsenic levels above
background. The concern is that concentrating a lot of
arsenic-contaminated material in the runway embankment
would create a health hazard, as the arsenic is gradually
carried downward into the local streams & even the
Highline aquifer, at levels well above background.
Before the present case began,
the Port in at least four instances accepted fill that
was contaminated with arsenic
to unacceptable levels. When such levels were detected
in initial screening, the Port simply switched to another
test (the "SPLP test") that does not detect arsenic
at low, but still hazardous, concentration. In this way,
they "passed" otherwise unacceptable fill. An
ACC lawyer exposed this practice during cross-examination
of a Port expert witness during the PCHB hearing. The Board
ruled that this practice had to stop. Earlier this year, the Port persuaded the Legislature
to pass a highly-controversial special statute to allow
this practice to continue. ACC, C.A.S.E., and a coalition
of local environmental groups from around the State are
challenging that statute as unconstitutional. If the Port would simply insist that its suppliers provide
clean fill, half the issues in this appeal would disappear. Wetlands, stream flow, water rights In general, the Board decided that the Port's plans were
not adequate to protect wetlands and local streams. Wetlands will be destroyed, with
long-term environmental damage, if the runway project
goes forward, & so they
must be replaced. Experts disagree as to just what should
be done, but the Board ruled that the Port needed to do
more, at higher cost. Streams are healthiest if they have
neither too little nor too much water. If the wetlands
are not fully replaced, there will be too much water in
local streams in wet weather. Too much leads to flooding.
Some flooding is natural, even desirable. But severe flooding
sweeps away the soil on which stream vegetation depends,
destroys the gravel beds where salmon spawn. Repeated severe
flooding kills a stream. Wetlands help prevent this. Wetlands also release water during
the Summer dry spell, preventing streams from running
dry. Much of the rain that
would fall on the new runway, taxiway, &c., would be
diverted into the Airport's industrial wastewater system
for treatment & for discharge out of the area, just
as now happens to rainfall on the existing runways. In
the dry season, this robs Des Moines, Walker, and Miller
Creeks of vital water. With a third runway, the impacts
of this diversion would be unacceptable. The Port's answer
to this difficult problem is a plan to build huge underground
vaults, in which wet-weather rainfall would be stored,
for bit-by-bit release, as needed, in the dry period. Not
only is this hugely expensive but also it raises the question
of whether the Port has the legal right to latch onto water
that belongs to all of us. The Board ruled that the Port
would need a legal water right to make such a diversion.
The Port does not own such a water right, has not applied
for one, & has little chance of obtaining it.
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