Free Response to Supplemental Brief - District Court of Federal Claims - federal

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 1 of 39

Exhibit 106

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Case 1:98-cv-00419-LB

Document 184-4

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Page 2 of 39

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DEP..lRT.\-1E'T OF ECOLOGY
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October 31, 1990

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Mr. Joseph A. Scorcio Pierce County

Tacoma, WA 98409
Dear Mr. Scorcio:

2401 S.35th Street

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Thank you ~or the opportunity to comment on the draft

environmental impact statement (DEIS) for the 304th and
Meridian Landfiii Site proposed by Land Recovery Inc. We reviewed the DEIS and have the following comments.

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There appears to be some information in the DErS on this proposed site that may impact public perceptions of the proj ect. There are severa 1 discrepancies between the Tacoma-Pierce County Solid Waste Kanaqement Plan's discussion of alternatives for waste management and their presentation in this document. While it is true thaL the

terms of the current variance for L.R. I. ' S Hidden Valley

i991, 85 is stated on Page 7, last par~qraph. _
In this same paragraph, it is stated that if the 304th street site is not àeveloped as a landfill, the Hidden

attendant ~e~uirement fer expansion at the s1 te by late

Landfill require its closure by late 1991, there is no

Valley Superfund site would probably have to be used- for

2

County solid waste even though it would be filled and ready for closure. This is an assumption and not something that could easily or automaticaiiy be done given the cleanup orders and restrictions on that site. The Department of Ecolog would enCOurage or require the use of an alternative disposal site Which the County would have identified as their alternative, bacKUp, or emergency disposal racility, whether it was inside the County or outside.
Although the Solid Waste Management Plan sets the development' of an in-county landfill as a priority, iL also examines the Use of transfer stations and export to facilities outside the county, either as short or long-term options. On Page 12, D. Site Selection, second paragraph, the representation of the Possibilities for export are very stronglystatéd, and somewh~t misleading.

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Mr. JOseph A. Scorcio Óct6ber 31, 1990
Page ~

Kanage~ent Plan also discusses export as an option ~i th decision.
many rela~ed impacts and factor~ to consider in that
:2 .

The alternative of developing a ne~ ~olid ~aste landfill in Pi~rce COunty does not pre~lUde the consideration Of sites outside the County, becaUse the ~olid Waste

4

We need" ~ore Specific information in the El~ and appendix regarding the wetland delineation, values, and functions and mitigation proposed.

overlay di~plaYing the proposed mitigation plan WOUld be appropriate. A base map/photo scale between 1: 100 and 1:400 is desirable ~ith the former preferre~. All Wetland boundaries and sample points need to be marked in the field and cheeked durinq a field visit by the u.~. corps of Enq ineers and/or 'Washinqton Department o~

~ap. An overlay displaYinq the project foot print end an

The wetland delineation report should be accompanied With a detailed large scale ~ap Or orthOphoto diSPlaying both the wetland delineation sample points and wetland classes. Wetland classes could also be displayed on this

Ecology .

5

A fuii fUnctional analysis of eXisting wetlands and the potential impacts from the projeCt needs to be addressed.

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the site for ~Ovin9 the footprint to lower Value wetlAnds. Ad~quAte buffer ODnes shoUld be addresSed as

recogized. There appear to be severai alternatives on

~he Ers sho~ld address additional alternatives or mitigation measures (refer to WAC 197-11-768). Attached is " suggested mOdel wetlands protection ordinance which We have provided to cities and cOunties. It Contains compensatory mitigation ratios and other elements Which should be considered. The need for mOnitoring, COntinqency Plans and site protection Should also be

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The DEIS ma~es seVeral ref~rences to rloOd/wetlands. It is nDt clear whether these are intended to be constructed wetlands for the purpose of stormwater treatlDent or whether the intent is to use naturai we~iands as treatment systems. The latter scenario would not be
cpprovable under WAC 173-24 o

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conform with Department pOlicy.

not to be Used as treatment systems.vetAlso, if these because natura.i wetlands ace constructed for treatment purposes, lands are ~e do nDt consider this mitigation. If so, this WOUld also not

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Mr. Joseph A. Scorcio October 31, 1990
Page 3

4.

An alternatives analysis following Section 404 (b) (1)
guidelines approved by the U. S. Corps of Ensineers and U. s. Environmental Protection Agency will be required to satisfy the Department's Qlternative~ issues.

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5.

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6.

making. The information requested here will help us in our SEPA review as well as our review of the Section 404 public notice and our Section 401- certification
responsibili ties.

Enclosed is a set of report recommendations that outlines the information needed for project review ~n~ ~ecision

Subsurface Characterization The D~IS indicates that
Sweet Edwards/EMCON eSE/E) had installed monitoring wells and piezometers to monitor the groundwater table at thQ site. Also, SE/E had excavated a numer of test pits at this site. However, I feel that due to the heterogeneous nature of the glacial till, more soii borings s~ould be required to rUrther characterize the subsurface condi tions of the site. Layers ot hi~hly permeable material was observed in some or the test pits during the last site exploration. Those layers may allow for rapid ~iqration o~ contaminants away trom the site in a-

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permeable soil should be located and taken into consideration during the design process. We would like to recommend that L. R. I. conduct grid pattern soil borings at this site. The distance be~ween borings . should be as close as economically teasible to tully èxplore the subsurface condi tions o~ the site prior ~o initiatinq th~ design process for the proposed

saturated environment. Those lens or pockets of highly

· In-Gradient" landfiii.

7 _

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Landfill Bottom Lin~r Designs -- As indicated in the report, the landriii bottom liner system will consist of a layer of two ~eet of compacted Siil having a permeahill ty of less than 1 x 10. em/sec and a 60-mil HDPE 1 iner. The botto~ 1 iner system will be underlined by a one-foot layer of sandy gravel leak detecLion/seep control layer. The combined leak aetection/seep control system may not provide enough early warning to the environment since there are questions reqarding the efficiency of the system. The minute amoun~ of leachate leaking from the landfiii ~ay be diluted by the in-flow groundwater to make the early detection more difficulL, if not impossible. Geologic discontinui~ies (till joints and/or permeable seams of sand and silt) which are
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DSJ 000935

- ~~-uu; ~.~u~lvliU~Tlce of Counsel

DOJ Ann Nava ra

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; 206 764 6529 Filed 12/22/2006 Page 5 of 39

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October 31, 1990 Page 4

Mr. Joseph A. Scorci 0

commonly fO\4nd in gla.cial till i may further complicat.e

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9round~ater table will inevi tably reach the bottom of t.he hydraulic 9radient control system. The hy~raulic
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the issue. I r&cOttinenè that there be separate systems for leak detection and hydraulic 9r~dient control. Due to the proposed "in-gradient" l~ndf111 design, the

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qradient control system should have the capability tQ provide proper separation between the groundwater table and the landfill bottom liner.

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8. Traffic -- The main entrance to the site will be from north of J04th Street. The anticipated 142 trucks per day wiii have impacts on the local traffic pattern. More detailed traffic survey should be required for the s\4rrounding areas. In the eVent that local traf~ic wiii be significantly affected hy t.he proposed landfiii operation, the proponent should propose additionai traffic control measures in order to alleviate the
probl eJn _
9. Relocation of the South

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Creek -- the site development plan calls for the relocation of South Creek as one of the possible landfill development aiternatives. However, the DEIS does not address the potential environmental i~pacts cause~ by the proposed operation. The potenLial environ=ent~l impact study should not be limited to the proposed landfill areas only. It should also cover the Upstream and downstream areas of the Creek.

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may da~age the integrity Of the proposed landfill liner system. A detailed and thorough site 1nvesti9ation should be implemented in order to obtain more subsurrace in£or~ation ror the proposed site. Also, the potential impacts on the local tratfic, wetiands, and vildlife caused by the proposed landfill operation should be thoroughly investigated in the FEIS.
10. Page 60, first p~ragraph -- The ~~rface vater quality data referred to in tcble 2 do not lnciude either fecal

settlement caused by draining the underlyinq soil layer

The proposed "In-Cradient" landfiii may be a viable approach for the landrill design. However, there still are questions regarding the efficiency of the prOposed "leaK detection and hydraulic gradient control system" (the underlying gravel blanket). Also, the additional

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the -mOderately height coliform levels observed in South Creek" in July.
cruu""

or total coliforms. Therefore it is dirf1cul t to assess

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Mr. 30seph A. Scorcio
October 3 i, 1990 Page 5

11. Page 62, second paragraph -- "Water discharged trom the flood basin wiii be characterized through monitoring of its electrico:l conductivity a.nd turbidity." These parameters ~re 9ro~B indicators of sediment and dissolved

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SUbstances in water. Other parameters are also needed to stormater runoff.
ensure that aquatic lire is not affected by the

12. Following the above ~entence, ftIfit is too turbid, it
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wiii not be di6charqed to the crluik." What level is considered "too turbid?" What will happen to the stormwater in this CAse?
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Page 62, third paragraph -- "After several years or operation, realiqnment or South Creek is proposed." wha~ is the reason for this real ignment?

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14.. Page 6J, first paragraph -- "All water discharged from the flood/wetlands basin ~ili be monitored for electrical conductivity and turbidity before discharge." These parameters are gross indicators of sediment and dissOlveë substances in water. Additional parameters are also needed to ensure that aquatic lite is nOL adVerseiy affected by the discharge. Criteria should be established for ~he monitoring parameters so that

exceedence wiii trigger an al ternative discharge plan.

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Appendix D, Page 43, Section 4.10.1. Ground Water Monitoring -- A sufficient nUmber Of wells will be installed at the site to detect groundwater contamination at the earliest Possible time. Four is the minimum number of wells speciried in the Minimum Functional Standards (Chcpter 173-304 WAC). However, a site as large as the 304th and Meridian site located in such a geologicaiiy complex Grea will likely require far more than one Upgradient and three downgradient wells. The importance of the underly in9 aquifer ror domestic Use also intensifies the need for an adequate, reliable ground water monitoring system.
In addition to the ~inimum list of parameters to be sampled quarterly in ground water, at least a subset of the wells Should be sampled for volatile Organic compounds, base neutrals/acid extrac~abies, herbicides,

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and PCBs. (PCB sampling will be especially important if
fluff is used as daily cover.) The leak detecLion system

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DSJ 000937

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Mr. JoSeph A. Scorcio October 31, 1990
Page 6

23
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leak. 16. Page ~ 3, Section 4.10 - J . Surface Wcter Koni toring __ In
South Creek upstrea~ and down5trea~ of any ~ur!ace
discharges to the Creek. In addition to the parameters listed for Surface water monitoring, the following parameters should be analyzed quarterly: te~perature, ammonia, nitrate, nitritE, total and soluble reactive
life, while phosphorus and the sOlUble nitrogen species can contribute to eutrophication. Due to the low
alkal ini ty dnd resulting instablll ty or the pH reading,

should also be sampled for the addition pcr~meter~ on a quarterly basis or more frequently it the volume or water pumped fro~ the system increases, indicating a possible

addition to water samples fro~ the detention ba~in, samples will be needed on at le~6t a quarterly basis fLom

phQsphorUs. Amonia and nitrite can be toxic to aquatic
the pH measurement should be made in the field as soon as PO$sible after sample collection. 17. Page 47 -- A detailed quality assurance/quality control (Ql1/QC) plan wiii be required that addresses all aspects

2-5

of i: ielà, laboratory and reporting of 1noni toring for

ground and surface water and landfill gas (Chapter

173-304-490(2) (ii) (C). .

Ms. Sandra Lange 1n our Southwest Regional Office at (206) 586-5556. _ For questions on Co~en~s 2-5, please call Mr. John Marshall 1n our Wetlands Section at (206) 438-7786. For questions on Comments 6-9, please call Mr. Gary Lee in our Southwest Regional Office at (206) 753-3013 _ For questions on Comments 10-17, please call Ks. Barbara Carey also in our Southwest Regional Office a~ (206) 586-1825.

:rf you have any que3tions on Coinent 1., please -call

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KFP: 54J9/Attachment
cc: Sandra Lange i SWRO John Marshall, Shorelands Gary Lee, SWRO Barbara Carey, SWRO Sarah Barrie, SWRO
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Sincerely,

Section SUpervisor

000252

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DSJ 000938

Case 1:98-cv-00419-LB

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Exhibit 1 07

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Case 1:98-cv-00419-LB

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File
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6100 COLUMII CENTR 701 FF AVENUE
SEATTLE WASHINOTON 98104.7098

HELLER EHRMAN WHITE & MCAULIFFE ATTOR~EYS
\ ~'RT"nSHIP OF PROHhIO,,A' C:OR'ORArIOSS
.'SCHOMOE

Los AsOEL
PAL ALTO
PORTLAND

FACSIMILE (2061447'0849 TELPHONE 1206) 447-0900

SAN FUNCI5C

October 8. 1996
DANIEL D, SYiDAI.

T.\COMA

Mr. Stephen K. Causseaux. Jr. Pierce County Hearing Examiner
902 S. 10th St.
Tacoma. W A 98402

RE: Army Corps of Engineers Decision
Dear Mr. Causseaux:

I am in receipt of letters from Mr. Lynn. Ms. Steiner. and Mr. Bjorgen,requesting that you enterthe recent decision of the Corps. its press release. and selected information from its Record of Decision into the record and consider the same in your decision. LRI does not believe that the record should be open at
this point of

time or that you should consider this decision in your decision making. Cenainly the record

should not be open for any of the substantive discussion in the Corps' Record of Decision. a record which has not been subject to cross examination or. since the EIS process was stopped. even a final opportnity to comment. Not only is the record offcially closed already, but to reopen it would star the
County Wetlands Permit process down a slippery slope of new information developing in another, totally separate case and process. If mean that you should also wait to see LRI's appeal of

never ending motions to reconsider based on
this were to occur. it would

the Corps decision for your consideration.

All of this could be avoided by doing what was suggested by LRI. simply conditioning the permit on LRI obtaining the necessary other permits to construct its project. If it turns out that LRI is right. it will either succeed in its claims that a 404 permit is not required or that the Corps was incorrect in its decision. If LRI is wrong. the project could not go forward even if a County wetland permit issued.

The three announced bases for the Corps decision amply demonstrate why you should not allow yourself to be sucked into the morass suggested by Mr. Lynn. Ms. Steiner and Mr. Bjorgen. The Corps did not base its decision on wetland impacts. failure to mitigate the same. or the availabilty of other onsite uses. First the Corps found that longhaul was a practicable alternative. On this point, your prior land use ruling has already found that longhaul was not economically reasonable and was inconsistent with the TPCSWMP. Then the Corps found that Horn Creek was a viable alternative despite the conclusion of
the FSEIS to the contrary. Finally, the Corps found an impermissible risk to groundwater from the

project. citing to G. Fred Lee. again a conclusion directly contrary to your prior findings. LRI would suggest that if you admit the Corps decision into evidence. then you must also consider LRI's position on compliance with federal law and your prior findings in regard to the issue upon which the Corps has
based its decision.
Ms. Steiner submitted portions of the Corps' ROD regarding the wetlands mitigation plan in which they determine the plan to be inadequate. This conclusion is specifically not a basis for their decision as it . recognizes that the Corps could simply require more or different mitigation. Further. the cited passages

-: DEFENDANT'S z
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DSJ 000939

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Case 1:98-cv-00419-LB

Document 184-4
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Filed 12/22/2006

Page 10 of 39

\-t Stephen K. Causseaux. Jr.

October 8. 1996

show. again. why they should not be allowed into the record as they are nothing more than a repeat of the letters which were rejected because they are full of opinion which is not subject to cross examination. (For example. the Corps incorrectly states that the WET analysis shows replacement only with function exactly as expected and only after 20 years. The ROD also incorrectly asserts that because the wetlands have been categorized as II's under the County ordinance. they involve "highly complex and unique
physical. biologicaL. and natural heritage values:')

As an additional note. we have now scheduled the consolidated land use and health department pennit appeals with Judge Stone, as well as a briefing schedule. These call for briefing in the months of October, November and December, with the final hearing mid December. As I have previously noted. LRI hopes to consolidate any appeals from your upcoming decision with these hearings.

Sincerely yours.

Daniel D. Syrdal

cc: Bill Lynn

Tom Bjorgen Viki Steiner Harold LeMay
Don Hawkins

Connie Henderson lody Snyder

DSJ 000940

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 11 of 39

Exhibit 108

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 12 of 39
i I

The Honorable Karen L. Strombom I
2 3
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4
5
61

7

SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY
8

9 CONCERND RESIDENTS ON WASTE )
10
11

DISPOSAL. )
)
Plainti ffleti tioner.

)

12

v.

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)

DECLARTION OF DANIEL D. SYRAL IN SUPPORT OF RESPONDENTS LAND RECOVEY,

13 TACOMA-PIERCE COUNTY HEALTH
14 DEPARTMENT; LAND RECOVERY. TNC.; RESOURCE INVSTMENTS. TNC.; 15 NORMN LEMA Y; and the STATE OF

INC., RESOURCE INSTMNTS,
INC., AND NORMN LEMAY'S

)

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) )

REPL Y MEMORAUM IN
SUPPORT OF MOTION TO DISMISS CONSOLIDATED ACTION UNER CIVIL RULE 12(8)(6)

16 WASHINGTON,
17
18

)

De fendan ts/Res pondents.

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) )
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19 WILLIAM and GAIL \VEYERHUSER.
20
21

)

No. 99-2-07552-3

Petitioners.
v.

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)
) )

22

23 TACOMA-PIERCE COUNTY HEALTH

)

24 DEPARTMNT; LAN RECOVERY, TNC.; RESOURCE fNSTNfNTS. fNC.;
25 NORMN LEMA Y; and STATE OF
26
27
28
DECL.-\RA rro:- OF D.-\\IEL D SYRDAL 1\ SlPPORT OF

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W ASHfNGTON.

~ DEFENDANT'S
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Respondents.

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HELLER EHRMAN WHITE & MCAlJLlFFE

RE5PO\DE\T5 REPL Y \IE\IDR.\\Dl'1 1\ SlPPORT OF
\1HIO:- TO D15\1155 - i
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4.rrOR"E'S

nlQO COll\tRI-' CF""'TFR

DSJ 000941

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 13 of 39

WILLIAM and GAIL WEYERHUSER. )
2
3

4
5

v. )
of the State of I. Daniel D. Syrdal. under penalty of

)

Petitioners, )
)

PIERCE COUNTY. a municipal corporation )

)

6
7 8 9 10

Washington; LAND )

RECOVERY. INC.. a Washington )

corporation: RESOURCE INSTMENTS. ) INC.. a Washington corporation; NORMN )

LEMA Y. an individuaL. )
)

Respondents. )
perjury of the laws of the State of

11
declare as follows:

Washington,

12
1. I am an attorney licensed to practice before this Court. and am a member of

13 14

the finn Heller Ehnan White & McAuliffe.
2. I am one of

the attorneys representing Respondents Resource Investments,

15 16 17

Inc., Land Recovery, Inc. ("LRI") and Nonnan LeMay in this matter, am competent to
testify herein. and base this declaration on personal knowledge.
3. In her August 2. 1999 declaration, Ms. Dold asserts at Paragraph 23 that, "At

18

one point. when the paries seemed to have reached an impasse on this issue. LRI claimed
that it would move for sanctions against CROWD and Weyerhaeusers if

19

20
forward with their case in front of

they moved

the PCHB."

21
4. I was in attendance at this meeting and was the only LRI representative to

22

make statements about seeking sanctions. This statement in Ms. Dold's declaration

23 24

mischaracterizes what I said. as I specifically tied the potential for a Rule 1 i sanctions

motion to the fact we felt there was no basis for the Petitioners to relitigate the issues

25
26

surrounding the validity of the 1996 pennit decisions by the Tacoma-Pierce County Health
Department ("TPCHD'") and the Pierce County Hearing Examiner.

27
28
DECLARA TIO:- OF DA;,IEL 0 SYRDAL 1:- SLPPORT OF RESPO~DE~TS REPL Y \IE\10R.-\:\DL\1 i:- SLPPORT OF \iOTIO~ TO DIS\IISS - 2

HELLER EHRMAN WHITE & MCAULIFFE
.. T r 0 R .. E ~. S
b I 00 COii \181' CEQER
'01 FIFTH ""E'lE
~E""rTLE. V.'..~HI'GTO"" ..sln.._~."I¡~

TELEPHO'E ,- - ---

DSJ 000942

Case 1:98-cv-00419-LB
1

Document 184-4

Filed 12/22/2006

Page 14 of 39

5.

I indicated that we would not bring such a motion if the Petitioners only
the new statute or other issues that had not been previously litigated.

2 litigated the effect of

3 6. I felt that under the rules. it was our duty to inforIl Petitioners of this
4 intention, and to try 10 dissuade Petitioners from relitigating claims which we knew had.
5 been very obviously and directly litigated to

conclusion in 1996 without any further appeals

6 by Petitioners. I explained that we. and our clients, took this matter very seriously and that.

7 having lived this case for many years. were very confident in our conclusions regarding

8 these facts.
9

7.

In November and December 1994, I had several discussions and meetings
Engineers' attorneys and staff

10 with U.S. Any Corps of

members regarding LRI's belief

11 that the Corps was taking far too long to process its Section 404 wetlands pennit application

12 and that, since the adoption of EP A's Subtitle D regulations under the federal Resour~

13 Conservation and Recovery Act (RCRA) in 1991, the Corps was without jurisdiction to

14 require this pennit in any event. At a large meeting during this period, we were infonned

15 that if we brought an action to determine this jurisdictional question, the Corps would slow
16 or stop working on the pennit pending its resolution and this could furter delay pennit

17 processing. In Februar of 1995, the Corps offcially notified LRl of its detennination that

18 LRI' s jurisdictional arguments were erroneous.
19

8.

In September 1995. during the hearing process before the Pierce County

20
21

members to express LRI's concerns regarding some of the permit conditions recommended in the
staff

Hearing Examiner, I met with the County's counsel and County and TPCHD staff

22 23

report on the Conditional Use Permit. At that time, I explained to them that LRI was
its

concerned about the proposed conditions which required LRl to obtain other project penn

24 25 26
27
28

to the extent that some of those permits. including the Corps' Section 404 pennit, may not

be legally required. I specifically indicated that LRI did not believe the Corps' Section 404 permit was required and would likely challenge any potential denial by the Corps on these

grounds. They explained their proposed conditions were simply intended to ensure that the
project would not go forward without all the required permits and that they would
OECL.-\RA TIO~ OF OA'.IEL 0 SYRDAL 1'- SLPPORT OF RESPO~OE~TS REPL Y \IE\IOR.-\"'OL\1 1'- SL-PPORT OF \IOTION TO 015\1155 - 3

HELLER EHRMAN WHITE & MCAULIFFE 'TTOR"EYS
6100 COLL-\1BIA CE~TER

'01 FIFTH AVE'LE SEATTLE. W.SHI'GTO" '¡SIOJ.'Q')8
T~i rDun"F 1206) J.....OQOO

DSJ 000943

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 15 of 39

1 recommend to the Hearng Examiner that those provisions be modified to clarify they
2 should.

only apply to the extent the other pennits were otherwise required by law. This
the hearings. with Mr. Comstock of

3 testimony was given in the latter stages of

the TPCHD

4 providing such testiipony regarding the Section 404 permit. When (he Hearings Examiner
5 failed to adopt the modified conditions as part of

his final decision. LRl sought

6 reconsideration, and the Examiner indicated this failure was an oversight and adopted the

7 changed conditions in his order on reconsideration.
8

9.

In November 1995, I became concerned about whether the TPCHD

9 recognized the State legal requirement regarding the demonstration of no practicable

10 alternatives contained in WAC 173-351-130( 4)(a)(iii) and the requirement that they make a
11 determination as to whether or not LRI had satisfactorily demonstrated it had rebutted the

12 presumption of practicable alternatives. I specifically requested a meeting to ensure ~t the

13 TPCHD intended to make such an analysis and what materials they intended to consider.
14 15
16 17 18 19

10.

In November 1995, I had a meeting with Mr. Cliff Allo, TPCHD attorney,
in charge of

Mr. Andy Comstock, TPCHD staff

the LRI project permitting effort, and Mr.
Ecology. At that meeting I discussed LRI's

Avery Wells of

the Washington Deparment of

view that it was an absolute requirement, under both federal and State statutes and

regulations, that the TPCHD make the detennination regarding practicable alternatives and

other wetland issues. I explained our conclusion that it would be improper to defer to a
federal agency to make this State decision and that even RCRA. and its Subtitle D
regulations adopted by the EP A, required these decisions to be made by the responsible

20
21

22 23 24
25

State offcial which, under RCW 70.95 and WAC 173-351 was the TPCHD.
1 i. At that meeting, Mr. Wells indicated that it was his opinion that the decision

could just be deferred to the Corps since they had to make the same decision under their
Section 404 authority. To counter this approach I explained that it would be illegal for a

26 27
28

State or local agency to defer to a federal offcial to make a State decision. I also indicated
that if

the Corps were to deny our Section 404 permit. LRl would appeal such denial on the

grounds the Corps lacked jurisdiction to make this decision because. in the case of landfills
DECLARATION OF DANIEL D. SYRDAL P. SL'PPORT OF
RESPONDENTS REPL Y \1ß10RA\!JC\1 IN SL'PPORT OF

HELLER EHRMAN WHITE & MCAULIFFE ,TTOR'EYS
6 i 00 COLL '181-' CE'TER

~10T!ON TO DISMISS. ..

'0 I FIFTH AVE'LE
SE.ATTLE_ W'SH"GTO," ~RIO~.'Oq8 íE i .. ft. .,... r- . ,,.,.., .... ,'\.,...'\

DSJ 000944

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 16 of 39

1 pennitted under the Subtitle D regulations, this decision had been delegated to the approved
2 states under their solid waste regulations. In such circumstance, the TPCHD would be the
3 only agency to make this determination

4

12.

Mr. Al--o and Mr. Comstock indicated that they would consider my position

5 and make a decision as to whether they would make the decision themselves. We then
6 discussed the vast amount of information in the record from LRl, its opponents, and the

7 agencies that could be considered by the Department in making its analysis.

8

13.

Shortly after this meeting, I was made aware by the TPCHD that it had

9 10
11

concluded that. under State law, it indeed had the duty to make the wetland demonstration

detenninations, including the practicable alternatives decision, and that its decision would
include this determination.

12

Executed at Seattle, Washington, this 9th day of August, 1999.
I
..
-. -,t" ~ ~ / ;~, ~
. 1',

13 14 15 16
17 18
I016170i-SE (26/1POI'DO)

-

Daniel D. Syrdal

19

20
21

22 23 24

25
26
27 28
DECLARA TlON OF DA:-IEL D. SYRDAL f: SlPPORT OF RESPONDE~TS REPL y \1E\10RA:-DL'~ i~ SL"PPORT OF \IOTION TO DiS:-1fSS . ;

HELLER EHRMAN WHITE & MCAULIFFE ."TTOR'EYS
6\00 COLL'oBi- CE"TER

70 I FIFTH .-, E"LE SEA mE. W ASHi-GTO" ''K I OJ. .INS TELEPHO'E 1206, JJC-,;QI)Ü

DSJ 000945

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 17 of 39

Exhibit 109

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 18 of 39
1

1 IN THE UNITED STATES COURT OF FEDERA CLAIMS
2 - - - - - -- - - - - - - - - - -- - -- - - -- - - -- -- -- -- - ------ - - - - - - - - - - - - - --3 RESOURCE INVSTMENTS, INC., and

4 LAD RECOVERY, INC.,

5 Plaintiffs,
6

vs.
Defendant.

No. 98-419L

7 UNITED STATES OF AMRICA,
8
l i l . \ i . J-j ') T/

/,~- /:;~-:-\ i:-::~ \\/7

9 - --- - -- - - - - - - - --- - -- --- -- - --------- - -- - -- - - -- -- - - - - - -- - ---

\\" \\j) L - U

10 Deposition Upon Oral Examination Of

11 POLLY L. McNEILL, VOL. 1

12 Pages 1 - 192
14 15 16
17
9:05 a.m.

13 ------ -------- ------- -----------__________ ---_ _ ___________

September 14, 1999

4735 E. Marginal Way South
Seattle, Washington

18
19

20

21
22

23 24 25
REPORTED BY:
.

Keri A. Aspelund, RPR, CCR AS-PE-

;; DEFENDANT'S

f SrEXHIBIT
: L GCj
z
II

SEATTLE DEPOSITION REPORTERS (206) 622-66f.

DSJ 000946

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 19 of 39 44

POLLY L. McNEILL, VOL. I, 9-14-99
1 2
3

Q.

And when did that happen?

A.
Q.

I would be guessing; '90 or '91.
And were you attempting to persuade the Health

4 Department and the County to provide joint comments in
5 the process, was that part of what you hoped to achieve,

6 or joint feedback?

7 A. Joint feedback is one aspect of coordination
8 that we were hoping to facilitate and maybe one on which

9 we actually were success ful. But you know, as you

10 mentioned earlier, this is a project that involved I
11 think you used the term complex, it was a complex

12 project, and it involved a lot of different permits, and
13 we were very concerned that anyone of the agencies could

14 take a position of waiting until everybody else was
15 finished before they would process the permit, and if we

16 had done that, we thought it would take ten years or

17 more. So, to the extent that we could overlay the permit
18 procedures and have them going concurrently with each

19 other, we were aggressively pursuing all opportunities to
20 do that. And by that standard, on that measurement, we

21 were less than successful with the Health Department and
22 the Planning Department than we had hoped to be.

23 Q. Why do you think the Health Department didn't

24 want to start processing the solid waste application
25 until the SEPA document was all done?

DSJ 000947

SEATTLE DEPOSITION REPORTERS (206' 622-66

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 20 of 39

POLLY L. McNEILL, VOL. I, 9-14-99
1 2 3 4

105

A. Well, I think my purpose was just what is
stated on the cover memo, that I wanted to document the
fact that any delay at that point was not caused by us but instead by the Corps.

5
6 7

Q. Why did you feel the need to do that?
A. I can't recall any precipitating event for it,
it just seemed like a good thing to do.

8
9

Q. In the second paragraph you use the initials
DBR; what does that mean?

10

A. DBRs are -- I can't remember what DBR, what the
ini tials DBR stand for, but they're draft bills before

11
12
-.:',......-

they're sent to the client, they're what the invoice has
with all the details in it.

13
14

Q. And is the sumary of your time attached to
this memo a complete sumary of the time that you spent
on the 304th Street project in this time period, or just
the time that you spent on the Corps side of things?

15 16
17

18
19

A. This is just the time I spent on the Corps side
of things.

20

Q. And this time sheet has entries from July 1st
of '91, through February 11th of 1992; what else, outside

21
22 23 24 25

of the Corps proceeding, was going on in this time period
wi th the pro j ect?

A. Boy, the years all merge together. I guess
this would have been like -- I could be wrong about this,

DSJ 000948

SEATTLE DEPOSITION REPORTERS (20fi' h??_kkk

--"

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 21 of 39

POLLY L. McNEILL, VOL. 1, 9-14-99

106

1 but I guess this would have been when we were doing our
2 appeals to the Supreme Court on the adequacy of the EIS.
3

Q.

Of the SEPA EIS?

4

A.

Uh-huh.

5
6 7

Q. And while the appeals to the Supreme Court were
going on, with regard to the SEPA EIS, was there any other action taking place in other permit proceedings, or
was everything kind of at a standstill while that was

8
9

resolved?
A. No, we were working with the Health Department
trying to persuade them to accept a Solid Waste Permit

10 11
12 13 14 15
16 17

application, and failing that, at least trying to get a clear understanding of what would be required to prepare
an application for submittal.

Q. And they ultimately decided not to accept the
application until the SEPA document was final?

A. I think that's correct.
Q. And that's the second SEPA document that they

18
19

were waiting for?

20

A. No yes. Well, they were waiting for a
ruling from the Supreme Court on whether our initial EIS

21
22

was adequate or not. If the Supreme Court had ruled that
it was adequate, my recollection was anyway, that the
Heal th Department would have said okay, fine, submit your

23 24

25 application. So, we wanted to have everything all ready.

DSJ 000949

SEATTLE DEPOSITION REPORTERS (206) 622-666

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 22 of 39

POLLY L. McNEILL, VOL. 1, 9-14-99
1 2 3

107

But I really -- I'm really worried that I'm mixing up my
dates and my years here with you.
Q.

Well, I think the Supreme Court decision was in

4

1994.
A.
Q.

5
6 7 8
9

Okay.
If that helps.

A.
Q.

Not really.

Well, okay, we'll get back to that later,

hopefully with some documents.

10

A. I mean, if I sat down and looked at some of
these documents with more time and clarity, I'd be able
to give you more specific dates.

11
12

13 14

Q. Did you deal with Ann Uhrich at any point while
Mr. Mowrey was project manager, or before?

15
16 17

A. I think I spoke with Ann Uhrich once or twice.

Q. Why did you have occasion to talk with her?

A. At some point Bob Mowrey told me that the
notice had been drafted and was being circulated for approval, and that it had been sent to Ann Uhrich for her

18
19

20

review. This was during the time period that -- this was
during this fall, late fall period, when he was telling
me that it was going to corne out any day, any day, any

21
22

23
24 25

day, and I believe during that time period I came over
here to look for Ann Uhrich to see if she was in fact looking at the public notice, and if there were any

DSJ 000950

SEATTLE DEPOSITION REPORTERS (206) 622-666

Case 1:98-cv-00419-LB Document 184-4 Filed 12/22/2006 Page 23 of 39 POLLY L. MCNEILL, VOL. 1, 9-14-99 116

1 for all of the reasons that you have seen documented in

2 correspondence and memoranda, you know, he was just

3 obstinate on that issue. He was -- he conveyed a sense
4 of arrogance on the part of and on behalf of the agency,

5 and you know, used phrases like that's tough; well, if

6 you don't give us that information or change your

7 purpose, then we can just deny the permit.

8 Q. Well, was it ultimately your understanding that
9 the Corps had the ultimate responsibility and obligation
10 to decide what the Alternatives Analysis had to include?

11 A. Well, it was my understanding that the
12 Alternatives Analysis was sort of a dual obligation with 13 the Corps and with EPA as a result of the 404(b) (1) 14 guidelines, but that the Alternatives Analysis was driven

15 by the project purpose, and that the project purpose, 16 within reason, was the responsibility of the applicant,
17 and it was on the project purpose that we went back and

18 forth and wrangled. It was the characterization by the
19 Corps of the project purpose to be something other than
20 an in-county landfill, and something more generic, akin
2 i to just handling Pierce County solid waste, that drove

22 the inclusion of long haul as an alternative. Had the 23 project purpose remained limited to a landfill in Pierce
24 County, then long haul would never have been a reasonable

25 alternative.
SEATTLE DEPOSITION REPORTERS (206) 622-6661
DSJ 000951

Case 1:98-cv-00419-LB Document 184-4 Filed 12/22/2006 Page 24 of 39 POLLY L. MCNEILL, VOL. 1, 9-14-99

117

i
2
3 4

Q. So, ydu believed that ultimately it was the
applicant's obligation or responsibility to set forth the
project purpose?

A. That's correct.
Q. What role did you think the Corps had in
deciding whether the project purpose accurately portrayed

5
6 7

the pro j ect ?
A. Well, you know, based on my reading of the
Sylvester case and the Louisiana Wildlife case, I thought

8
9

., .~,'1,:

.~.:
~ _'JÀ;

10 11
12

that the Corps had a responsibility to ensure that the project purpose accurately described the project and that
it wasn't so narrowly constrained as to be unreasonable.

13
14

But beyond that, I didn't think it was the Corps' place
to make the leap from an in-county landfill to any means
of handling solid waste.

15
16 17

Q. But ultimately it's your understanding that
well, considering certainly the applicant's stated
purpose, the Corps itself had to make a final decision

18
19

that the project - purpose was the appropriate description
of the

20 21
22 23

project?
A. No, that's not my understanding.

Q. Why don't you -- I think I got a little
confused along the way.

24 25

A. Well, my understanding is that the project
purpose is the prerogative of the applicant, and that

SEATTLE DEPOSITION REPORTERS (206) 622-666:

DSJ 000952

--------------Case 1:98-cv-00419-LB Document 184-4 Filed 12/22/2006 Page 25 of 39
POLLY L. MCNEILL, VOL. 1, 9-14-99

118
1

yes, the Corps does have the right to, as I say, make
sure that that is an accurate description and that it's

2 3 4

not unreasonably narrow. If we had said, for instance,
that we needed to have a, you know, a landfill that was

5
6
7

on property owned by an affiliated company, that might

be, for instance, an aspect of the description that would

be unreasonably narrow. I think there's a certain __
well, I think there's some allowance for input from the Corps, but if the project purpose is reasonable and accurately describes the project, it's my understanding
that it's the applicant's prerogative to write that

8 9
"

10
11
12

~; :,~-

description.
Q. So, ultimately you disagreed with the Corps'
conclusion that the project purpose, as Rii stated it,
Ii
iJ 1'1 !,

13
14

15 16 17

was unreasonably narrow?
:1

A. That's correct.
Q. Did you have any feeling that the EPA was
biased against the landfill project?

18 19

A. Yes.
Ii

20

Q. And what made you feel that way?
A. Linda Storm was fairly direct about her views
of this project.

i ;¡ !

21
22

23 24

Q. What did she tell you?

A. There was no way that the landfill could eVer
be sited in wetlands.

25

l;.

SEATTLE DEPOSITION REPORTERS (206) 622-6661

DSJ 000953

Case 1:98-cv-00419-LB Document 184-4 Filed 12/22/2006 PQLLY L. McNEILL, VOL. 1, 9-14-99

Page 26 of 39 119

1 2

Q.

Was she responsible for offering EPA' s ultimate

decision on the --

3 4

A. She was -Q. -- ultimate position on the project?

5
6 7

8
9

A. She was responsible for drafting the response to the public notice. I'm not sure of what the scope of her authority was with regard to EPA' s final position on the project.
Q.
be denied?

Did EPA recommend that the project application

10 11
12

A. Yes.
Q. What about Jonathan Williams, did you work with
Mr. Williams?

13
14

A.
Q.

No.
Did you have any occasion to review any of his

15

16 work on the project?
17

A.

No.

18
19

Q. Do you know what his role was?

A. No, I don't -- no. No. Is he a Corps

20

employee?
Q. He's an EPA employee.

21
22

A. Oh.
Q. Did you have any occasion to be involved in the
designation by EPA of the sole source aquifer in Pierce

23 24

25

County?

SEATTLE DEPOSITION REPORTERS (206) 622-6661
DSJ 000954

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 27 of 39

191
1 2 3

SIGNATURE

4 5
6

I declare under penalty of perj ury under

the laws of the State of Washington that I have read my
within deposition, and the same is true and accurate,
same and except for changes and/or corrections, if any,

7 8 9

as indicated by me on the CHAGE SHEET flyleaf page

hereof. Signed in..~.., WA, on the.~~day
Of.C2bW...., 1999.

10 11

.

12

13
14

15
16 17

Taken: September 14, 1999

18
19

20

21
22

23

.

24 25
Keri A. Aspelund

SEATTLE DEPOSITION REPORTERS (206) 622-6661
DSJ 000955

.

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 28 of 39

POLLY L. McNEILL, VOL. 2, 9-15-99

242

1 Conditional Use Zoning Code is written in Pierce County,

2 whether we could have gone forward with construction at

3 our risk or not. I'm fairly certain I said yesterday
4 that the Reasonable Use Exception Code allows you to do

5 that, but I can't recall whether the Conditional Use

6 Permi t did or did not. In any event, we did not go
7 forward with any construction pending the appeals.

8 Q. And how long did it ultimately take LRI to
9 secure final approval on the SEPA process and Conditional

10 Use Permit?

11 A. Well, we achieved then the final approval of
12 the Conditional Use Permit and the SEPA in 1996.

13 Q. And after that final approval in 1996, were 14 there any further challenges or appeals of the
15
16 17

Conditional Use Permit?

A. I can't recall specifically. That's kind of
amus ing to me. I should be able to recall. I'm quite
certain that the citizen opponents would have filed
appeals if they were able, so I suspect that there were.

18 19

20

Q. And was the Conditional Use Permit process and
the SEPA process on a separate track from the Corps

21
22 23 24

process?
A. Yes.

Q. I'm trying to eliminate documents as I go, so I
apologize for my slowness, but hopefully it will save us

25

SEATTLE DEPOSITION REPORTERS (206) 622-661

DSJ 000956

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 29 of 39

POLLY L. McNEILL, VOL. 2, 9-15-99
1

258

these documents to read before I started. They're
refreshing my recollection on things we had discussed

2 3

previously as I review them. Okay.

4
5
6 7 8 9

Q. Is Exhibit-80 the first application that LRI
submitted for the Wetlands Reasonable Use Exception?

A. Yes, the Reasonable Use Exception Ordinance had

not been in effect for very long. I can' t recall exactly
when it was adopted, but it was adopted very late in the

process. We did not believe that we were required to
seek this permit. Legally we believed we were vested
under the land use and zoning laws of Pierce County at the time of our application for the Conditional Use
Permit, and that would have been the second Conditional

10

11
12

13 14 15
16 17

Use Permit, but the -- but as with others, we decided
that it was probably better to just go ahead and go
forward with the process and see if we could forestall
the appeals on the issues that way.

18
19

Q. What was the Wetland Reasonable Use Exception
Application required for? What activities did it cover?

20

A. It was for the landfill. I'm not sure I

21
22

understand your question.
Q. Was it part of a permit proceeding called a
General Wetlands Permit, or was it a whole separate

23
24

permi t proceeding?
A. It was a whole separate permit proceeding.

25

SEATTLE DEPOS ITION REPORTERS (2 a 6) 622 - 666

DSJ 000957

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 30 of 39

POLLY L. McNE ILL, VOL. 2, 9 - 15 - 99
1 2 3

259

Q. So, this application was required to use the
site for the landfill in general, it wasn't specific like
the Forest Practices Permit?

4
5 6 7 8
9

A. No, it was the County's ordinance that
prohibited development in wetlands without a Reasonable

Use Exception. The ordinance itself was the subject of
litigation in the Conditional Use Permit proceedings

because the way it was written was a little bit amiguous
and our opponents took the position that we had to
demonstrate that we could qualify for a Reasonable Use Exception before any development in wetlands could be permi tted. We viewed the Wetlands Ordinance in general as allowing for development in wetlands, and that the
Reasonable Use Exception was a last resort that was

10

11
12

13 14 15
16

available to applicants so as to protect the County from

arguments that it was taking property. When the decision
came out on the Conditional Use Perm~t, I think my
recollection is that the hearing examiner concluded that the Conditional Use Permit could be granted but that we
did need to apply for a Reasonable Use Exception. _

17 18 19

20

21
22

Q. So, at the time this application was filed, the
County was taking the position that this Wetland
Reasonable Use Exception was required prior to use of the
site or development of the site?

23 24 25

MR. PALMER: Objection to the extent it calls

SEATTLE DEPOSITION REPORTERS (206) 622-6661

DSJ 000958

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 31 of 39

POLLY L. McNEILL, VOL. 2, 9-15-99
1

260

for speculation.

2 3 4

A. Yeah, and I'm not sure that I would
characterize it as the County's position, but the hearing
examiner's decision seemed to require it.

5
6 7

Q. And was the --

A. And we chose, rather than appealing the issue
of vested rights, to pursue this permit, because of course at the time we were still waiting for the Corps of
Engineers permit, so we had the time to do it.

8
9

10

Q. SO the option was filing the application or
appealing the hearing examiner's decision?

11
12 13 14 15 16 17

A. That's my recollection, yes.
Q. Do you recall whether the Reasonable Use
Exception was ultimately issued? And am I using the
correct term in calling it issued? Is that what they do?
Is it like issuing a permit?

A. I guess it as correct as anything. I'm not
sure whether it would be issued or granted.

18
19

Q. Do you recall when it was ultimately granted? A.
I think it was in the fall of 1996, but I'm not

20 21
22

sure specifically.
Q. When the Reasonable Use Exception was granted,
was it challenged in any way?

23
24

A. I believe it was. I was on a sabbatical in the
fall of 1996.

25

SEATTLE DEPOSITION REPORTERS (206) 622-666

DSJ 000959

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 32 of 39

Exhibit 11 0

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 33 of 39

1

w

2
3

4
5 6 7

BEFORE THE POLLUTION CONTROL HEARNGS BOAR STATE OF W ASIDGTON

8.

CONCERND RESIDENTS ON WASTE DISPOSAL, a Washigton nonprofit 10 COIporation,
11

9

WILIA and GAI WEYERHUSER,

)
)
)

PCHB Nos. 99-067

12 13

Appellants,
v.

) ) ) )

99-069 99-102

)
) ) ) ) ) ) ) ) )
)

~

14

LRI'S AND Rl'S RESPONSE TO . APPELLANS' MOTIONS FOR RECONSIDERATION

TACOMA-PIERCE COUN HEALTH

15 DEPARTMENT, RESOURCE
16 17

INSTMNTS, INC., LAN
RECOVERY, INC., and STATE OF

WASHINGTON, DEPARTM OF
ECOLOGY,
.

18 19

Respond~ts.

20
21

RESOURCE INSTMNTS, INC., and
LAN RECOVERY, INC., .
Appellants,
v.

)
) ) ) ) ) )
)

22 23 24
25 26
')

DEPARTMENT OF ECOLOGY,

)

Respondents.

)

~ DEFENDANJIS
i 5. EXHIBIT
.. , I(J ..

27
28
HELLER EHRMAf
RESPONSE TO APPELLANS' MOTION FOR
RECONSIDERA TION- i
AT
61001

c ..

iI ..

DSJ 000960

701 . _ ..... ._.__
SEATT. WASHINGTON 981047098
TELEPHONB (206) 447-000

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 34 of 39

1 advancing any objections to the landfill raised by the Coips. Indeed, as discussed below, in
., 2 their briefing to Judge Verharen they specifically relied on the fact that the Coips had
3 determined that there were practicable alternatives.3 Judge Verharen rejected all of

these
the Conditional

4 arguments, both as to the validity or-the Hearing Examiner's issuance of

5 Use Permit ("CUP") and as to the

validity of

the TPCII's solid waste permit decision.

6 The Weyerhaeusers were represented by sophisticated counsel and determned not to
7 appeaL. They obviously concluded that an appeal was probably unnecessary because they
8 did not believe that LRI and RII would succeed in obtaining reversal of

the Coips' permt

9 deniaL. By no means does that miscalculation constitute an "injustice;" there is no

10 unfairness in holding them to the normal consequence of a deliberate decision not to appeaL.

11 In CROWD's case, as the Board pointedly noted, "CROWD had every opportty
12 and right to appeal the solid waste permt but elected not to do so. Ths left in place a

13 certification by the TPCHD that the wetland demonstration under WAC 173-351-130(4)

.~

14 had been successfuL." Decision at 13. This election is fatal to their curent claim, because

15 their deliberate choice not to appeal does not result in "injustice."

16 Finally, Appellants' argumentS that they can relitigate practicable alternatives

17 because the Board has a more favorable standard of review must also be rejected. . Firt,
18

CROWD and the Weyerhaeusers both deliberately elected not to appeal the 1996 permt

19 decision to the PCHB. Instead, the Weyerhaeusers fied for direct review in the Superior

20 Court under a wrt of certorari and CROWD elected to sit on its hands. Now, thee year
21
22 3 Although Judge Verharen did not allow introduction of

23 Decision ("ROD") itself, due to hearsay and relevance problems, and because of

24 Weyerhaeusers to introduce the fact of

the Coips' Record of the unavailabilty of the authors of the ROD for cross examination, he did allow the the permt denial and the reasons therefor. He also

groundwater risk and practicable alternatives, both of which were before him in any event. 26 . Thus, there is no reason that Appellants should be given another opportity now to argue that the Coips' 1996 decision provides a basis for challenging a 1999 permit renewal, since
. 27 it did not provide a basis to overtrn the permt itself.

25 permtted argument on all of the substantive issues raised by the Coips including both

28
HELLER EHRMAf\
RESPONSE TO APPELLANTS' MOTION FOR RECONSIDERA TION- 5
AT T

DSJ 000961

6100 Ct

701 FIF A VI

SEATTE, WASHINGTON 981047098
TELEPHONE (206) 447-000

Case 1:98-cv-00419-LB
1

Document 184-4

Filed 12/22/2006

Page 35 of 39

E. The fact that counsel for LRI and the TPCHD entered into a joint

)

2 3

defense agreement in May 1999, after both parties were sued by C~OWD and the Weyerhaeusers, provides no basis to relitigate practicable alternatives or any other issue.
Both CROWD and the Weyerhaeusers make the remarkable argument that

4

5 reconsideration should be granted because counsel for LRI entered into a joint defense.

6 agreement with Mr. Allo, the attorney for the TPCHD in May 1999 after CROWD and the
7 Weyerhaeusers fied suit against both parties. Such agreements are commonplace, and LRI
8 and the TPCHD are

aligned as defendants in defense of the solid waste pennt issued by one

9 defendant to the other. There is nothng unseemly about coordinating defenses nor is there
10 anytng improper about preserving the confidentiality oflitigation-related communications
11

between counsel for defendants.
For counsel to suggest, as they do, that this signifies that the TPCHD has lost its

12

13 impariality or is not properly fulfillng its functions as a regulatory agency is both insulting

~

14 and untre. And, of course, it has absolutely nothing to do with resolution of

the issue

15 before the Board-whether a practicable alternatives decision, made in 1996 and upheld in
16 1997, can be collaterally attacked here. This obfuscation should be entirely disregarded .by

17 the Board.
18 V.
19

REHEARIG is NOT JUSTIFIED BASED ON THE CORPS' ROD WHICH HAS BEEN NULLIFIED BY THE NINTH CIRCUIT COURT OF APPEALS RULING.
Both CROWD and the Weyerhaeusers argue that rehearng should be granted

20
21

because the TPCHD issued the solid waste permit before the Corps' objections to the

22 23
24

landfill, as expressed in the ROD, were published. The Weyerhaeusers also rely heavily on
the decision of Judge Bryan affrming the Corps' denial of

the pennit, devoting almost 10

. pages of

briefing to discussing the ROD and Judge Bryan's decision. These arguments

25 26

cannot withstand scrutiny for a number of reasons.
First, as a legal matter, the decision of

the Corps (and Judge Bryan's affinance) are

~

27

absolute nullties because the ROD was rendered by an agency without jurisdiction. To
HELLER EHRMAN WHITE & MCAuLIFFE
RESPONSE TO APPELLANTS' MOTION FOR RECONSIDERATION- 23

28

61~TC- DSJ 000962
701

SUTT. WJ
TELEPHO.." '..voi.. '""vv

Case 1:98-cv-00419-LB

Document 184-4

Filed 12/22/2006

Page 36 of 39

Exhibit 111

iI- C.

Case 1:98-cv-00419-LB
1

Document 184-4

Filed 12/22/2006

Page 37 of 39

.~

The Honorable Karen L. Strombom

2 3

4
5

- -

6
7-

SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY
CONCERNED RESIDENTS ON WASTE DISPOSAL,
)
)

8 9

10

Plaitiffetitioner,
11

)
)

12 13

v.

)
) )

RESPONDENTS LAND RECOVERY, INC., RESOURCE INVESTMETS,

..

14 15 16

TACOMA-PIERCE COUNTY HEALTH ) DEPARTMENT; LAND RECOVERY, ) INe.; RESOURCE INVESTMENTS, INe.; )

NORM LEMAY; and the STATE OF WASHIGTON,
Defendants/Respondents.

.REPL Y MEMORADUM IN SUPPORT OF MOTION TO DISMISS CONSOLIDATED ACTION UNER CML RULE 12(B)(6)

INC., AND NORM LEMA Y'~_

)

17
18 19

WILLIA and GAIL WEYERHUSER,
Petitioners,
v.

) ) ) ) )
)

20
21

) )
)

No. 99-2-07552-3

22 23 24 25

TACOMA-PIERCE COUNTY HEALTH

DEPARTMET; LAN RECOVERY, ) INC.; RESOURCE INSTMENTS, INC.; ) NORM LEMAY; and STATE OF )
WASHINGTON,
)

) ) )

-

26

Respondents.

27 28

) ) )

~ DEFENDANT/5 ~ STXHIBIT o

%\L\ .. '"
:z

~

HEllER EHRf

DSJ 000963

:E

SEA Tn". .. ""KINGTON 911 o. 7UI/8

Case 1:98-cv-00419-LB

Document 184-4

1 judgment may have been wrong or rested on a legal priciple subsequently overrled in

- .

Filed 12/22/2006

Page 38 of 39

')

2 anothe.r case.")

3 Ms. Archer, in her Declaration in Opposition to LRI's Motion for Sanctions

4 ("Archer Decl. in Opp. to Mt. for Sanctions"), states that, "(!)he W everhaeusers concluded
5 that Judge Verharen accepted the Hearng Examiner's and Health Deparent's deferral to

6 the Any Corps as lawfL." Archer Decl. in Opp. to Mt. for Sanctions at 5 (emphasis
7 added). Franly, although LRI has no basis to understand what Wiliam and Gail

8 Weyerhaeuser thought, their attorneys very clearly recognzed and correctly argued that
9 such a deferral would have been inconsistent with State law. No one disputed that

10 conclusion. Everyone agreed that the TPCHD had to make the ffnding that the applicant
11 had rebutted the practicable alternatives ffnding. Counsel had to recognze that if their
12 purorted interpretation of Judge Verharen's decision were correct, then Judge Verhaan

13 had commtted rever~ible legal error, and his decision should have been appealed in 1997,

14 not 1999. Nothg of substance has changed on ths issue since,- and the Weyerhaeusers

AA

15 have provided no explanation why they should be allowed to re-litigate the same issue now.

16 Ms. Archer nexI-asserts that "rather than appealing Judge Verharen's decision," they
17 looked to the federal proceeding "to have the practicable alternatives issues decided on its
18 merits." Id. It would have been more candid for counsel to admt that they made a strategic

19 election and decided to take a chance. Judge Verharen had rejected all their arguents
20

concerng "practicable alternatives." Indeed, in his order he indicated that none of their

21 arguments provided any basis for relief. Anderson Decl., Ex. 1 at 6. However, the Corps,

22 on September 30, 1996, denied the Section 404 pennt on the ground that there ~
23 practicable alternatives. Petitioners knew that if the Corps' jursdiction held up, and the

24 Corps' pennt denial decision were affined, Judge Verharen's decision would be
25 effectively mooted. However, they also knew that LRI would litigate the Corps jursdiction
26

~

27 28
RESPONDENTS LAND RECOVERY INC., RESOUR~E

HElLER Ef-nu Al.. \A/L.ln: ¡¿ MeAl JLlFFE
DSJ 000964
SE

INSTMNTS, INC., AN NORM LEMA Y'S REPLY
IN SUPPORT OF MOTION TO DISMISS - 13

Case 1:98-cv-00419-LB
1 issue,

Document 184-4

Filed 12/22/2006

Page 39 of 39

12 but apparently concluded that LRI was wùikely to overt a federal agency on

)

2 appea!. The fact that they backed the wrong horse does not defeat the res judicata effect of
3 the judgment or excuse their deliberate

election not to appeaL. Nor does it indicate they

4 - have suffered an inj1!stice. Ms. Archer admits the Weyerhaeusers made a deliberate choice
5 not to appeal in 1997, but their new petitions raise the very same challenge. This kind of
6 tactic is at the very core of what the res judicata doctre is designed to prevent.

7 8 9
10 uncertain"

4. When the determination for which preclusion is sought is the only rational one the court could have decided, preclusion cannot be avoided by speculation concerning an irrational basis for decision.
There is no basis to conclude that Judge Verharen' s judgment was "ambiguous and

on the "practicable alternatives" and "delegation" issues.13 Without any

11 justification, the Weyerhaeusers hypothesize that, rather than detehng that the TPCHD
12
had made the required detennation, it is "equally likely" that he concluded

that "defeal
ths issue by the (TPCHD) was

13 of the required practicable alternatives analysis to the Any Corps was a lawf delegation
14 of authority, and accordingly, the lack of a detennation of

~ 15 not fatal to (its) approval()." Weyerhaeusers' Corrected Opp. at 37. Simlarly, CROWD
16 theorizes that Judge Verharen may have "found that the Health Offcer had delegated

Engineers but that delegation was proper." 18 CROWD Opp. at 55. That simply is not possible, consistent with.his conclusion that the

17 decision makg authority to the Corps of

19 pennt was lawflly issued. WAC 173-351-130(a) does not allow it, and no par argued it.
20 Certainy, Judge Verharen would have made a specific finding ifhe were adoptig a wholly
21 new rationale, especially one that could have the signficant futue implications tJai-the
22

Weyerhaeusers suggest.

23
24

12 Respondents' federal cour complaint containg RI's Admstrative Procedure
Act appeal, Archer Decl. in Opp. to Mt. to Dismiss, Ex. 29, which asserted the lack of
Judge Verharen was completed.

25 jursdiction claim in detail, was fied on October 30, 1996, well before briefing before

26

13 Mr. Lyn represented the-Weyerhaeusers in ths 1996 appeal and signed the final

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27 28

order, waiving notice of presentation. If he felt the order was ambiguous, he could have, and should have, moved for clarfication or reconsideration. He did not do so.
RESPONDENTS LAND RECOVERY INC., RESOURCE

HElLER EHRr ....&" IITI: -p- ~ACAI II IHE
DSJ 000965
SEA TTLr.

INVESTMNTS, INC., AN NORM LEMAY'S REPLY
IN SUPPORT OF MOTION TO DISMISS - 14