| December 13, 1999 | Peter J. Eglick Attorney At Law |
Mr. Tom R. Luster
Environmental Specialist
Department of Ecology
Permit Coordination Unit
P. O. Box 47600
Olympia, WA 98504
Re: Port of Seattle Third Runway Project;
Corps of Engineers Reference No. 1996-4-02325
Dear Mr. Luster:
These comments and attachments are submitted by the Airport Communities Coalition ("ACC") in response to the notice issued by the Corps of Engineers and Port of Seattle for the Sea-Tac third runway and airport expansion project. The comments supplement those previously submitted to the Corps of Engineers and copied to you under a cover letter dated December 10, 1999.
A summary by DOE staff in an e-mail dated April 12, 1999, provides a useful introduction to the question of DOE certification:
This is a huge project, with significant impacts to two already heavily-impacted watersheds. The Port is going to have to do a lot of technically rigorous work to show how the project can be constructed and operated in a way that will allow Miller and Des Moines Creek to support fish and provide cleaner water, even in their urban settings. [emphasis added]
In the almost one year since staff’s analysis was written, the Port has generated a plethora of "review drafts" and incomplete versions of various expert reports and plans. It has offered to DOE successive position papers attempting to wordsmith away the legal requirements for certification. It has not, however, provided DOE with the necessary "technically rigorous work."
Instead, the Port’s strategy has been to repackage convenient assumptions and flawed analyses in the hope that DOE will certify now, and let the Port provide the essentials later. Such deferral cannot support certification where crucial elements of the proposal have not been presented and analyzed in a competent form. Conditions cannot legally defer receipt of a competent plan (the necessary basis for certification) until after the certification decision itself is issued. A concurrent design/build fast-track approach is not appropriate or legal in the context of a $1 billion airport expansion project where critical environmental resources are at stake. Otherwise, the entire purpose of the public review, comment, and appeal process would be defeated.
401 certification depends on "reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." 40 C.F.R. §121.2(a)(3). In issuing a 401 certification, the state does not look just to compliance with quantitative water quality standards, but takes into consideration such factors as "public water supplies, propagation of fish and wildlife, recreational purposes." Northwest Environmental Advocates v. City of Portland, 56 F.3d 979, 987 (9th Cir. 1995) (quoting from Clean Water Act, §303, 3 U.S.C. §1313). Here, the Port has not provided the Department of Ecology with a colorable basis for issuing a 401 certification. While the Port makes sunny predictions about the improvements in water quality which can be expected from implementation of its project, the underlying documents tell another story:
Since the 401 is a one-time evaluation of the proposal, we need more assurance of what the fill criteria will be for the life of the project. We need to determine what additional materials the Port is proposing to include during future haul years and ensure that those materials will meet the 401 requirements. This "future fill" issue is especially important because the materials placed after the 1999 season will be the ones placed in wetlands and may have the stronger connection to groundwater paths -- we need to know what contaminant thresholds will be in place to prevent leaching into surface waters or groundwaters.
Additionally, the two points above tie together in that we do not want to be permitting a future landfill or cleanup site, and that we need to include necessary conditions in the 401 to ensure that doesn't happen.
While DOE has previously expressed a desire to "get to yes" with the Port, the Port has failed to provide DOE with the tools necessary to do so. Based on the Port’s submissions to date, there can be no reasonable assurance that the Port’s proposal can be carried out in a manner which will not transgress water quality standards and preserve resources. The only certification which DOE could issue at this point would be one that construed the assurance required under the regulations as tantamount to a bare promise by the Port, with the operative details to be filled in later. If this were permissible, then there would be no need for review of plans, public comment, or a 401 certification in the first place. Applicants would simply be permitted to sign such an assurance and then proceed to the next step.
In short, while there is tremendous pressure on DOE to cooperate with the Port as another agency of government, the Port has failed, in the years it has had, to provide DOE with a framework in which certification can conscientiously issue, even based on the lenient "the beneficial uses that are present cannot be further degraded" standard advocated by some DOE staff.3
If we were to approve projects in this basin that did not include measures necessary to restore beneficial uses, the cumulative impacts of those projects and ongoing development in the basin would probably prevent the creek from ever meeting standards. We would essentially be writing off Des Moines Creek, which is not allowed under the water quality standards.
Critical to the Port’s proposal is its planned use of a site in Auburn adjacent to the Green River for wetlands mitigation. ACC’s experts Dr. Sarah Cooke of Cooke Scientific Services and Andrew Castelle of Adolfson Associates have already pointed out that establishment of wetlands in Auburn does not mitigate loss of approximately 20 acres of wetlands in the affected basins. Both have also concluded, independently, that the actual ratio of wetlands lost to mitigation wetlands is far short of any acceptable standard. Both have also stated that the cumulative impacts on the affected basins are likely to be devastating to their viability.4
Further, the U.S. Department of the Interior, Fish & Wildlife Service, has raised substantial questions about the appropriateness of a site in Auburn for mitigation in the airport area. In a letter dated December 1, 1999, the agency repeats its longstanding objection to such out-of-basin mitigation, calls (again) for the Port to develop in-basin mitigation proposals as a prerequisite to project approval, and then goes on to question the long-term viability of the Auburn site for wetlands mitigation at all:
Permit applications and/or wetland delineations for most of these adjacent parcels [adjacent to the Port’s Auburn mitigation site] are currently on file … This future adjacent development may result in increased human disturbance which may adversely affect wildlife which may forage, nest, or use the mitigation site in the future.
Id. The U.S. FWS also points out that a trail is planned:
between the proposed mitigation site and the Green River. We continue to object to the trail in its proposed location. The proposed mitigation site was specifically selected to mitigate for impacts to wildlife which could not be mitigated on-site. A trail adjacent to the Green River reduces the value of the site to wildlife as it increases the number and proximity of people and their pets to wildlife, and precludes a potential undisturbed corridor for species to access other areas.
Id. Finally, the U.S. FWS expresses doubt as to the "long-term viability of the site to function as a wetland," due to changing groundwater levels.
None of these issues are resolved in the record before DOE. Nor are they issues which may be "conditioned away" with an approval-now-reconsider-later approach. On the current record, there is no basis for DOE certification in the first place.5
Pursuant to the State Shoreline Management Act ("SMA"), Chapter 90.58 RCW, a Shoreline Substantial Development Permit is required for activity in the shoreline, including associated shorelands, which includes wetlands. See RCW 90.58.030 (Definitions); RCW 90.58.140 (shoreline permit requirement).
The Port of Seattle apparently contends that a Shoreline Substantial Development Permit is not required for its Auburn mitigation project because it falls within the exemption in RCW 90.58.147 for a "project that is designed to improve fish or wildlife habitat or fish passage." RCW 90.58.147(1). However, this description cannot apply to the Port’s Airport expansion and third runway project. Nor can it apply to the Auburn component of that project, which entails creating a wetland as a means of obtaining authorization for destroying existing wetlands. There will be no net improvement, as intended under the statute, but only a dubious "swap."
Further, even if the Auburn component of the Airport project were within the description of exempt projects in RCW 90.58.147, it would not qualify as a fish habitat enhancement project entitled to a determination of conformity with the local shoreline master program pursuant to RCW 75.20.350 of the Hydraulics Code. Under that section, fish habitat enhancement projects must eliminate human-made fish passage barriers, restore stream banks, or place beneficial (to fish) in-stream structures. RCW 75.20.350(1)(a). The Auburn component of the Airport project does not fit in any of these categories.
Further, the Port’s Auburn proposal includes work within the jurisdiction of the SMA for which no exemption exists. This work is called for in the interlocal agreement between the Port and the City of Auburn executed in early 1998.6 Section 6 of the agreement, entitled "Floodplain Change," describes the following work, within SMA jurisdiction, which will occur as a result of the Port’s wetlands construction:
In the absence of approved final shoreline permits which have been subject to SHB review, including permits for construction of the channel and access road called out in the City/Port agreement, there is no basis for DOE certification.
ACC, under separate cover, has submitted comments by Dr. Sarah Cooke, a wetlands scientist well recognized in the region for her expertise and competence. Dr. Cooke has reviewed the wetlands documentation for the Port’s proposal, and notes in her comments that in-basin wetland replacement mitigation is possible, despite the Port’s insistence on mitigating for impacts here with wetlands there:
I was asked to review this material in light of my experience with the Master Plan Development for the Snohomish County Airport at Paine Field. I was the ecologist who delineated the wetlands, developed the mitigation proposal for impacts resulting from the Master Plan Development, and developed the design for the on-site mitigation. I have been intimately associated with the Paine Field Mitigation Bank project since 1992. I have completed the first season post-installation monitoring for the on-site mitigation at Paine Field, and based on the results I have found, I am convinced that on-site mitigation is absolutely appropriate for airports, even within very close proximity of a runway. While there have been some short-term problems at Paine Field which are attributable to the installation implementation of the mitigation plan, it has been possible to replace impacted functions (except avian habitat) in-basin. I see no reason why similar in-basin mitigation cannot occur at SeaTac for the proposed third runway project. It is possible to provide in-basin mitigation provided the mitigation is correctly designed. Hydrologic modeling and a detailed quantitative functional assessment of the basin are of utmost importance to the design process.
Letter dated December 13, 1999, from Dr. Sarah Cooke (copy attached), at p. 2.
DOE itself is also aware of this possibility. For example, in an e-mail from Tom Luster dated May 12, 1999, Mr. Luster refers to (and attaches) an article dated May 12, 1999, from a newspaper in Petaluma, California, entitled "Wetlands to Remain in Cross Creek." The article described a circumstance in which the FAA approved on-site mitigation wetlands planned near an airport.
Certainly, it is more convenient -- and cheaper -- for the Port to damage the environment it lives in and then offer to "compensate" in another town. However, convenience to the Port provides no basis for DOE certification.
In a memorandum dated July 27, 1999, from DOE staffperson Tom Luster to his colleagues, Mr. Luster states that he has "questions about several elements of the report [on the proposed retaining wall] -- conditions at the toe of the slope, possible wall slippage, and recommendation for subdrains -- all of which could result in additional impacts to Miller Creek or adjacent wetlands." Mr. Luster notes that, based on his review:
The current wall design might have to be changed to accommodate site conditions and could result in several significant and unanticipated impacts -- namely, the relocation of a portion of Miller Creek, additional wetland fills, and additional changes to the base flow of the creek.
And, he expresses concern that DOE not get into a situation, "similar to last year," where:
we would need to re-issue the Public Notice or revise our certification to allow additional impacts to Miller Creek and several acres of wetlands, especially since those areas are currently proposed to serve as project mitigation.
Mr. Luster then lists specific questions regarding conditions at the toe of the slope, possible wall slippage, and possible need for subdrains which he suggests must be addressed.7
It appears that there could be problems with the wall slipping due to inappropriate soils and substrate at the base of the wall. The peer review recommends better characterization of subsurface conditions (through a test trench) and additional detailed analysis.
Mr. Luster’s comments were prophetic. Further, while the Port has submitted some additional material since July, they only highlight the fundamental gaps and flaws he identified and raise some new ones, rather than lay anything to rest.
These problems are analyzed in the attached comments of David Cole of DOWL Engineering, an independent geotechnical engineer retained by ACC to review the Port’s proposal for the Mechanically Stabilized Earth (MSE) Wall. Mr. Cole not only has substantial experience in such walls, but is chairman of the Anchorage Geotechnical Advisory Commission in Anchorage, Alaska, a city known for its care in such matters due to relatively frequent seismic events.
As Mr. Cole describes, the Port’s proposal is to construct an embankment 8500 feet long and 150 feet high along some portions of its alignment. Total quantities of imported fill would be on the order of 20 million cubic yards. A portion of the embankment would encroach on wetland areas. As Mr. Cole summarizes:
The tallest section of the retaining wall will be about 150 feet high and 500 feet long. A wall of this height and length is a massive undertaking, and in my view will require bold engineering and construction techniques for it to be successfully constructed. It likely will be the highest, or one of the highest, walls of this type constructed in a seismically active area. (emphasis added)
Having set the stage, Mr. Cole then proceeds to analyze whether the Port’s reports provide a basis on which to now approve this "bold" proposal. In assessing this gamble, he notes that the Port has not bothered to actually test the strength of specific soils at the site to determine whether they will serve. Instead, it has relied on generic tests which are not rigorous and which have no demonstrated relation to actual on-site conditions:
The analysis of a wall of the height proposed should include a more rigorous analysis than that proposed … and, as stated above, it should be based on measured soil properties, not assumed properties.
Mr. Cole comments that even the Port’s superficial analyses based on generic soil strengths revealed safety factors "below normally acceptable levels." He further notes that the Port’s documents fail to offer "the reasons for the low factors of safety presented in the report, nor was there mention of any way to improve the factors of safety of the planned embankments."
As with slope stability, discussed above, Mr. Cole concludes with regard to foundation soils that the Port has failed to demonstrate "whether or not the foundation soils on which the wall (and the sloped, non-retained portions of the embankment) would be constructed can support the imposed loads adequately." In particular, he refers to the Port’s acknowledgement of the substantial presence of peat and groundwater with the likelihood that "the embankment and wall would fail due to gross bearing capacity failure, horizontal sliding failure or general slope stability failure before it was constructed to a significant height." As Mr. Cole observes:
For a wall and embankment as tall as anticipated to succeed the foundation soils must be competent. Peats are not. Therefore, they will have to be excavated and replaced with competent fill material. [italics in original]
In addition to required removal of the peat, according to Mr. Cole, the "recessional deposits (sand and silt) likely would not support the wall/embankment in their natural state," and "would have to be removed also." The Port’s report acknowledges this possibility and suggests that "stone columns" might be used to improve the situation. However, the Port’s documentation provides no basis on which to accept this proposal, as Mr. Cole concludes:
However, since no stability analyses were presented in the documents reviewed, it is not clear whether or not that approach to in situ ground improvement would improve the foundation soils enough at this site to support the very high foundation pressures and to provide adequate sliding resistance to maintain horizontal stability of the planned embankment. [italics in original]
The Cole review also demonstrates substantial drainage issues related to the construction of the wall which remain to be addressed. He also suggests that the analysis of borrow sources is deficient, and that "the need for additional or even completely different borrow sources could severely impact the construction of the project."
Contrary to Port claims, there are also serious seismic risks associated with the wall, per Mr. Cole. Because of its height, the wall’s performance during an earthquake is not comparable to that of much lower walls which have been reported to perform adequately in seismic conditions. According to Mr. Cole, the extreme difference in height is significant, and requires that, before the Port proceeds:
A wall as high and as long as the one planned should have more than a simple pseudo-static analysis performed.
Finally, after summarizing five different critical elements which could result in failure of the wall system and retained embankment, Mr. Cole concludes that "stability issues with the embankments have not been clearly addressed or justified as yet."
The risks of the Port’s concurrent design/build approach to a (literally) monumental "bold" gamble are brought home in Mr. Cole’s description of the consequences of MSE wall failure:
a slide mass resulting from failure of the embankment [that] would extend a distance in front of the wall approximately equal to the height of the wall (in this case about 200 feet in front of the wall). Under some conditions, say an extreme seismic event, the slide mass could project a distance twice the height of the wall or more depending on the mode of failure.
The result:
If creeks or ponds lie in the run-out zone, they would be filled with the slide debris.
Such a risk might be acceptable in the face of competent Port analysis. It is not acceptable where the Port asks for approval on a "trust us" basis. Recent history teaches that the Port has considerable difficulty in executing simple plans (e.g., for construction of an employee parking lot) without harm to the watershed. The wall which it proposes to construct would present far greater risks and uncertainties, even in the hands of an applicant with a far better track record.
DOE should not become a partner in the Port’s irresponsibility. Instead, it should deny certification.
As reflected in the review conducted by ACC’s independent experts, Northwest Hydraulic Consultants (NHC), the Port’s stormwater management proposals are no better thought out or documented than its MSE wall gamble. Dr. Malcolm Leytham and Mr. William Rozeboom of NHC conducted a detailed review of the Port’s stormwater documents for ACC. Their conclusions, set out in a November 24, 1999, letter, previously supplied to DOE, are unequivocal that there are:
major deficiencies in the analysis which may result in significant adverse impacts to the natural stream systems if the current version of the preliminary comprehensive stormwater management plan (SMP) is approved and implemented as a basis for mitigation of project impacts.
The specifics on which this conclusion is based touch every fundamental aspect of the Port’s stormwater analysis. Per NHC, the Port’s SMP does not satisfy basic requirements of the King County Surface Water Design Manual; does not protect against increases in the duration of erosive flows, and will do little to prevent increases in stream bed and bank erosion; and does not address conveyance systems.
The Port’s analysis also does not address open water duration; does not analyze the feasibility of the Miller Creek detention facility expansion in light of factors noted by NHC; and does not provide basic information and analysis necessary to evaluate individual facility feasibility and performance. Even worse, the Port’s analyses to date depend on target flows which are much too high, and therefore "lower the bar" for Port mitigation of post-development conditions. The end result would be substantial worsening of existing problems along the Miller and Des Moines Creeks systems. As NHC pointedly explains:
Application of these target flows would expedite the design and construction of economical stormwater facilities, but would most certainly worsen erosion and flooding along Miller Creek.
The list of problems noted by NHC is much longer than those summarized above, and should be studied in detail by DOE as part of its certification review. While, in time, the Port may be able to propose partial solutions to some of these problems, they will clearly be complex. If and when the Port proposes them, they must be the subject of a revised Public Notice with an opportunity for further comment by the public before 401 certification is issued by the Department of Ecology. Otherwise, the public’s right to participate knowledgeably in the process will have been inappropriately -- and illegally -- undermined.
NHC’s comments suggest by implication a related legal issue concerning the Port’s stormwater documents. Those documents include no substantive discussion of ownership of stormwater storage in the Miller Creek regional detention facility. While it appears that the facility was designed and built to serve development in upstream jurisdictions, in analyzing the "retrofit" benefits of this facility, no indication is given as to how much of the available storage should be credited to reducing runoff from existing development in each of the contributing jurisdictions, and there is no information to determine whether the Port is assuming as part of its stormwater plans that it may use more than its fair share of storage.
Pursuant to RCW 75.20.100(1), the Port’s project, which involves stream diversions and changes to the natural flow of fresh waters of the state, requires hydraulic project approval (HPA). To obtain such approval, an applicant must submit "complete plans and specifications of the proposed construction or work" and "complete plans and specifications for the proper protection of fish life." RCW 75.20.100(2)(b). If a project "will result in direct or indirect harm to fish life," it may not be approved. WAC 220-110-030(12). Approval may be issued if "adequate mitigation can be assured by conditioning the HPA or modifying the proposal" (id.), but only if the mitigation will result in protection of fish life.
Here, expert reviews in comments submitted to DOE demonstrate that the Port’s project will result in direct and indirect harm to fish life. The analyses by Northwest Hydraulic Consultants, by wetlands and fisheries experts at Adolfson Associates, by fisheries experts at BioAnalysts, by wetlands expert Dr. Sarah Cooke, and by others are unequivocal that, based on what the Port has now disclosed concerning its project, approval should not be granted. As BioAnalysts summarized in their December 10, 1999, supplemental letter (attached):
Based on the analysis of NHC, Miller, Walker and Des Moines Creeks will experience greater stream bank erosion, which will result in increased fine sediment recruitment. This will decrease bank stability, habitat complexity, and water quality. In summary, these changes will likely harm the habitat and production of fish in the streams and also in the near-shore environment. In light of this, we recommend against approval of the project at this time.
BioAnalysts Letter dated December 10, 1999 (copy attached). Similarly, in a supplemental letter dated December 9, 1999, emphasizing the individual and cumulative impacts of the Port’s proposal and others, Adolfson Associates states:
Until the issues noted in my earlier letter and this letter are addressed, and the analysis concerning cumulative wetland impacts completed, we strongly recommend against approval of the project.
Adolfson Associates, Inc., Supplemental Letter dated December 9, 1999.
In light of the requirement in the HPA code for pre-approval submission of complete plans and specifications for protection of fish life, approval now based on a Port promise to provide such protection in some future round of redesigns would be both inappropriate -- and illegal. Certification must therefore be denied.
Part of the DOE 401/CZM certification process involves ensuring compliance with SEPA. The DOE record to date reflects consensus among DOE staff that additional SEPA review is required.
ACC’s previous comments submitted to the Army Corps of Engineers and DOE include detailed discussion of the need for supplemental environmental review under NEPA. That same need exists with regard to state actions and SEPA, and has been acknowledged in intra-agency DOE correspondence. For example, in an e-mail from Tom Luster to Ray Hellwig dated July 1, 1999, Mr. Luster noted that:
Re: SEPA -- we still haven’t heard what additional SEPA review the Port is going to do -- addendum or supplemental. We’ll need the SEPA process to be completed before we issue a 401 -- this should probably be a heads-up for Tom F.’s meeting.
DOE staffperson Kevin Fitzpatrick’s notes taken during an August 2, 1999, telephone conference call with the Port of Seattle describe the following question by the Port and answer by the Department of Ecology:
Does Ecology agree that additional SEPA does not have to be done? Prudent thing to do for POS would have been additional SEPA, but they’re not doing it.
Other staff notes from that conference call indicate that the issue was discussed at length. For example, these additional notes describe the SEPA discussion with the Port as follows:
SEPA -- Port has determined no add’l SEPA necessary. ECY disagrees but will leave it to lead agency.
I said high risk for Port if they don’t do more SEPA - 401 would require any necessary analysis for aquatic resource issues, but would likely not cover other aspects of proposed project that would be under SEPA -- e.g. traffic, dust, noise, etc.
Port said they’ve looked at case law and are comfortable
I said two sig. Issues
- Port is both lead agency and proponent
- All previous SEPA done pre-ESA listings
I also said that if ECY determined more SEPA was needed, we’d have to take on lead agency.
Nothing has changed since these comments were written which would eliminate the need for supplemental environmental review. Indeed, as noted in comments by ACC attorney Mark Rutzick, previously submitted to the Corps and DOE, the only matters which have changed at all since the last round of environmental review are ones which underscore (rather than eliminate) the need for further analysis.
The Port’s refusal to perform supplemental environmental review is counterproductive to its cause. The last draft supplemental document in this matter was prepared almost four years ago, and the final supplemental document is almost three years old. Since then, as Ecology has pointed out to the Port, there have been substantial changes both in the project and its analysis, in the recognition of wetlands lost, in the status of potentially affected resources (e.g., fish and critical fish habitat), and in the regulatory framework which applies to them.
The failure to prepare a supplemental EIS under these circumstances cannot be justified under SEPA. WAC 197-11-600(3)(b) requires preparation of an EIS in the face of new information concerning a proposal’s probably significant adverse environmental impacts or when there are substantial changes to a proposal which will likely result in significant adverse environmental impacts. In Kiewit Construction Group v. Clark County, 83 Wn. App. 133, 142, 920 P.2d 1207 (Div. II 1996), this regulation was applied in an analogous, but much less extreme, context to support a supplemental EIS where the original environmental documentation failed "to disclose the full effect of truck traffic on bicyclists and other trail users, and … to discuss meaningfully the alternative of direct access ramps onto State Route 14."
Here, of course, as DOE has recognized, the new information and new proposal impacts raised are far more critical and complex than those at issue in the Kewit case. The justification for an SEIS is therefore that much greater.
DOE staff also had it right when it noted that the Port’s failure to prepare a supplemental EIS would force it to assume lead agency status. As DOE knows, such a procedure is explicitly provided for in the SEPA regulations. Further, in King County v. Boundary Review Board, 122 Wn.2d 648, 663, 860 P.2d 1024 (1993), the Washington Supreme Court endorsed use of this procedure in circumstances where an agency is "dissatisfied" with the lead agency’s failure to perform environmental review:
Under the SEPA rules, therefore, non-lead agencies are not constrained to accept a lead agency DNS but instead may make an independent determination as to whether they are "dissatisfied" with the lead agency’s decision.
122 Wn.2d at 663.
The time for DOE to assert itself on SEPA is now, before the agencies and the public are forced by the Port’s intransigence to spend more time on proceedings which are not supported by adequate SEPA (and NEPA) review.
As DOE staff stated in a May 12, 1999, e-mail:
[T]his project will result in significant impacts to two already significantly impacted watersheds. In order for us to approve it under 401, we will need rigorous and specific conditions to ensure that beneficial uses are maintained and protected. Based on the regs and the literature, it would be easier and more justifiable under 401 to deny the project because of the scope and extent of the project’s impacts and the current conditions in the water bodies.
Ecology staff notes of August 2, 1999, further observe:
All parties expressed concern that Port has told multiple versions of various project elements at various times -- all agreed we need written certainty on everything -- no "gentlemen’s agreements."
Despite these prescient comments, the Port has continued in its shifts and twists to seek approval based on "gentlemen’s agreements" to do better later. This approach provides no justifiable -- or legal -- basis for approval. Certification must be denied.
Sincerely,
HELSELL FETTERMAN LLP
Peter J. Eglick
Enclosures: