Runway Opponents Discover Port Plan to Haul Contaminated Fill to Runway Project

Plans of the Port of Seattle to bring contaminated fill to the third-runway embankment site may result in a major delay in resuming work on the project.

In defiance of a clear ruling from the Pollution Control Hearings Board (PCHB), the Port and the Department of Ecology have decided that fill materials may be accepted for use in the embankment if they are “passed” by a testing procedure that is known not to detect certain contaminants at forbidden levels. The two agencies are challenging the Board's ruling before the Supreme Court. They seem to believe that the Supreme Court will overturn the ruling of the PCHB, & so they are proceeding as if the Court had already ruled in their favor.

On April 2, Airport Communities Coalition (ACC) filed an emergency motion with the Supreme Court, asking for an order forbidding the Port and the Department from taking any action involving filling of wetlands, stream alterations, or construction at the runway site, until the Court has ruled on the pending appeal of the PCHB's ruling.

Ecology Gives Secret Approval to Contaminated Fill

According to the ACC's filing, the Port intended to begin moving fill in April, under a plan approved by Ecology for testing fill materials. Without public notice or knowledge, Ecology made a deal with the Port, approving the Port's use of a test (called the SPLP) to “qualify” contaminated fill as being "clean”. This use of the SPLP test was specifically prohibited by the Pollution Controls Hearing Board (PCHB) in its ruling on the Port's water-quality permits. The test is one of the subjects of an appeal by the Port of the PCHB order to the State Supreme Court. (ACC & C.A.S.E. have filed a cross-appeal.) Arguments in the case were heard on November 18, 2003, but a ruling has not been received from the Court.

Copies of the ACC's emergency motion and supporting affidavits are posted in our library, and can be found at the links above.

The Port of Seattle has responded to the motion with its own paperwork, rebutted by additional ACC filings.

On April 20, the lawyers for ACC, CASE, the Port of Seattle, and the Department of Ecology presented oral argument (through a multi-party conference call) to the Commissioner of the Supreme Court (Hon. Geoffrey Crooks) on the ACC-CASE motion.

Mr Commissioner Crooks ordered further briefing to be submitted by Friday, April 30, on a legal point that arose during the argument.

Port Promises Court: No Runway Fill Movement till June

The Port, through outside counsel Mr Gillis Reavis (of the downtown law firm Brown Reavis & Manning PLLC), orally represented to Mr Commissioner Crooks that (for unstated reasons) the Port would not be doing any work at all until June 1, at the earliest. On that assurance, the Commissioner said that there would be no immediate ruling, but that either he or the full Court would issue a ruling by June 1.

The result is that there is an understanding & an undertaking that there will be no relevant construction activity, including fill hauling, till June 1, at the earliest. This is not binding in the way that a restraining order or injunction would be, but if the Port were able to get its act together & start fill-hauling before June 1, there would be extremely serious consequences for Mr Reavis & his firm.

Those participating in the oral argument on the 20 th included Peter Eglick (lead counsel for ACC), Rick Poulin for C.A.S.E., Rachel Osborn (Spokane) also for ACC, Karen Marchioro, Assistant Attorney General, for the Department of Ecology, and Gillis Reavis, for the Port.

If the Court agrees with the ACC, then the Port & Ecology will have to devise a new plan for screening & testing embankment fill before any materials can be brought in. This will have to be done in consultation with the apparent low bidder for Year 2004-5 runway work, TTI Constructors LLC, whose bid came in at $192.6 million.

The Port has said for many months that it has all the permits it needs to resume runway work, but the Port never said that it was planning to proceed in violation of the terms of any of the permits.

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