Truth in Aviation: Newsletter of the Regional Commission on Airport Affairs

ACC Says Ecology Violates Supreme
Court Ruling, Seeks Clarification from
Pollution Control Hearings Board

On July 8, attorneys for the Airport Communities Coalition (ACC) filed an appeal with the Pollution Control Hearings Board, seeking review & correction of the revised sec. 401 certificate issued by Ecology for third-runway construction as the result of the earlier Supreme Court decision. The appeal also challenges the Department's order implementing the certificate. Both documents were issued on June 7.

According to the Notice of Appeal, there are two key elements of the certificate and order from the Department of Ecology that violate the Supreme Court's ruling. The Court issued “a clear ruling that no soils contaminated with gasoline, diesel or heavy oil (“TPH”) may be used” – yet the Port plans to use such fill, & Ecology plans to allow such use. Further, the Court issued “clear directives … that contaminated sites may not be used” as the sources of fill, yet “such sites are nonetheless proposed for use”.

Before filing their appeal, ACC wrote at length to the Port and Ecology, urging full compliance with the Court's ruling. That letter was ignored.

Arsenic-laden Fill Back in the Picture

Ecology still has not explained how they justify any possible use of arsenic-contaminated fill material from the Glacier pit on Maury Island. On May 19th, Ecology wrote the Port that Maury Island fill could indeed be used, if additional testing were done. This letter has not been rescinded. Yet, the Supreme Court said, “If the proposed borrow site was ever contaminated … its dirt may not be used as fill for the third runway”. While the PCHB ruling was pending on appeal, the Port, Ecology, & various consultants were screening potential sources of runway fill. In its haste to OK renewed runway work, Ecology seems to have forgotten to back and re-examine the approvals previously given for various fill sources, in light of the requirements in the Supreme Court ruling. Rather, they seemed to assume that their own very loose criteria would apply, that all the new requirements from the PCHB would be overturned. That was not the case. In general, in deciding whether a site was ever contaminated, Ecology seems to be using a highly restrictive definition of “contaminated”, whereas the court's language is all-inclusive. You don't need a laboratory analysis to know that Glacier's site on Maury Island & many other sites as well have been previously contaminated with smelter fall-out.

A second arsenic issue has to do with testing. The Supreme Court said, even if the SPLP test was used to pass fill samples that would otherwise fail standard tests, the samples had to pass not one but two water-quality standards – surface waters and groundwater standards. Ecology has not incorporated this safeguard in its new order, according the ACC Notice of Appeal.

“If We Don't Look for It, It Doesn't Count”

Ecology also has resorted to a shady trick to try to give its OK to fill contaminated with petroleum by-products (“TPH”). It has carefully chosen soils-testing methods that are not good enough to detect significant TPH contamination. The Supreme Court upheld the Pollution Control Hearings Board's ruling that these by-products should not be allowed at all. The court's opinion says, , “we … set fill criteria for TPH at zero”. But Ecology's order says, “The limit of 0 [for TPH] means nondetectable, as determined by Ecology.” In other words, “if we choose not to see it, it's OK, and poo-poo to the Pollution Control Hearings Board and the court.”

The PCHB Appeal Process

Appeals to the PCHB usually result in either settlement of issues between the parties (which the Board strongly encourages) or a full-dress evidentiary hearing – one where witnesses are examined and cross-examined under oath, with the Board weighing evidence as judges do, rather than simply relying on paperwork from Ecology. Hearings usually are not held till several months after the appeal is begun. For example, the Board is just now hearing an appeal on another matter, filed by C.A.S.E. and ACC in September 2003.

 

Back to Page 1 of Newsletter



Revised 401 Certificate &
Revised Order
[.pdf file 2.27MB]

Port Letter of May 26
[.pdf file 33KB]

ACC Letter of May 28 [.pdf file 199KB]

ACC Appeal
[.pdf file 307KB]

 

What's a 401 Permit?

A sec. 401 Certificate is an official determination by the State Department of Ecology that a project that might affect wetlands or "waters of the United States" won't violate State water-quality rules. 

Anyone wanting to fill wetlands or otherwise affect streams, creeks, lakes, & other water must have approval from the U.S. Army Corps of Engineers under sec. 404 of the federal Clean Water Act.  Before the Engineers act, the State has an opportunity to decide if the project can be completed "with reasonable assurance" that State water-quality standards will not be violated.  Without that ruling from the State, in the form of the 401 Certificate, the Engineers are supposed to decline to issue their permit.  Typically, before a sec. 401 Certificate is issued, Ecology lays down conditions in an accompanying "Order".  These may include provisions for mitigation (replacement wetlands), for stream monitoring, for control and restoration of stream flow, for plans to protect wildlife, to restore habitat, to restore native vegetation.  In the case of the third-runway 401 certificate, the Order also sets criteria for testing of fill for the runway embankment, to prevent contamination of local water resources from toxic materials leaching out from the fill.

 
     
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