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

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 1 of 44

Exhibit 93

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STATE Of WA5QN

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Page 2 of 44

DEPARTMENT OF ECOLOGY "2:2 CIe.nw.,,,, L.~. LU-ii . 0I"f: W'~ron 9850-617 . (206) 75J-2J5J
Dacember 13, 1990

TO: Howard Seeeley
Toii Ea ton

FROM: Kirk Cook gb.
SUBJECT: Uetlands as an Issue in Landfill Siting

Ineroduccion
UAC 173 - 304, Minimum Functional Standards for Solid Waste Handling provides si ting/locational standards for a varieey of solid Waste handling and disposal fac!" .Ies. These standards are presented in WAC 173-304-130 and include 'I;. ..Ó ,¡uidelines for surface water conditions. WAC 173-304.130(2)(8) states:

"No facility's active area shall be located within two hundred feet measured horizontally, of a scream, lake. pond, river or salt water body, nor in any wecland nor any public land that is being used for municipal drinking water purposes in accordance with WAC 248-54-660(4):" These guidelines specifically axclude the siting of a solid waste handling or disposal facility in a wetland as defined in WAC 173-304-100(90). Uith the exception of the variance provisions contained in WAC 173.340.700, there arc no other mechanisMs for exclusion from the siting standards. Therefore. if ,

faci lity' s activa area is co ba sited in a weeland, a variance is required
from the siting seandards. In the case of the proposed LR1 Landfill. there are at least 20 acres of designated wetlands within the proposed active ar.. of the facilÜy.

Discussion
The wetlands issue as preseneed in WAC 173.304, has become confused with :h. concept of wetlands preservation and mitigation addressed in Executive Order 89-10. and carried forth as policy by Ecology's Wetlands Section. Wetlana mitigation. the creation of new wetlands to replace those destroyed by facility operations, serves the intent of Executive Order 89-10, but does

nothing to address the environmental protection issues which were the intent
of WAC l73-304-l30(2)(e), Locationa1 Standards for Disposal Sites (Surface

\Jater) .
;; DEFENDANT'S

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Case 1:98-cv-00419-LB

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Howard Stuley
Daceiibar 13, 1990 Page 2

These aeandards were put in place to ensure that . solid waste handling facility would be sited in a location chat afforded the be.t natural proeeceion to ggound and surface waeer frog landfill operations in ehe event engineered safeg~ard. failed. The weeland. prohibieion in ehe locational standards i. explicit, It does noe provide for iiitigaeion iieasures such as exist for other faceors (e,g" the diseanee of groundwater beneath the lowerMOSe liner of a solid wasee fac1liey).
The MFS prohibition against sie1ng solid waste facilieies in a wetland, was done with the realizaeion that a wetland is a surface expression of a complicated hydrogeologic sieuation involving geologic structure, ground and surface water ineeraction, and climatic eondieions. On. or several or these factors combined could significantly reduce the iiargin of safety afforded to the facility through natural conditions. Removal of ehe surface expression of
a a wetland, generally does noe resule in correceion or removal of the mechanism responsible for the wetland in ehe first place. It is the presence of these hydrogeologic condieioni re.ponsible for weeland formation chat is of concern in sieing a solid waste facility. Whether tha wetland is mitigated or not, the conditions surrounding the formation of the wetland will remain and will have to be deale with by the facility proponene.
a larger. complicaeed hydrogeologic condition, in this cas

It is not our position to issue judgement at this point, on whether the facility should or should not be sieed ae the 304eh and Meridian location. It is our posicion that significant questions exist related to wetland characterization and facility design such that ueilizaeion of the variance procedure is warrantad.

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STA11 OF wASON

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DEPARTMEN OF ECOlOG
1212 c..... WW LlH7 . ~. WIf"" 9650U . (2æ) 1SHJSJ

rebruary 26, 19U

TO.

o1obn Manhall

rROI
SUBCT i

!tirk V. Cok ¡tc.
LR Wetlan. I..u.

I requeat your op1Aion Oft a wetlanda iaaue that hai ri.en at the propoaed 304th Street an Ka"idian Laafill, a.k.a. tne ~i LaftQr~ll in ~lerce ~ouncy.

To refreih your mery on thie eubject, I have included i~ background

material.

At iaaue. ii the definLtion of wetlandi aa preaented in WAC 173-340-100(90).

OUr definition readi.

.ituariea an ai-lar areai..
of wetlani aa preientad abe'
!tCI..
Znc loauree

.Wetlanda ~eana thoae areai that are inundated or iaturated by iurface or 9round water at a frequancy and duratLon aufficient to .upprt a prevalenoe of vegetatLve or aquatic lLfe that reqir.a aaturated or .laaona11y iaturated ioil conditioni for 9rowh and r.production. Wetlandi ven.rally include iwempe ~arah.i, bol,

The qu.ition I nee to have aniw-red frOl yo ii, do any of the identified wetlandi wLthin the propoied active areaa of thi landfill meet the definition

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Case 1:98-cv-00419-LB

Document 184-2

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Exhibit 94

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 6 of 44

Tranribed
VOICE MAL

MESSAGE

CaJl To: David B. Barows From: Jody Snyder, LRI Received Tuesdy, May 31, 1994
(TEXT)

Good Morng, David, ths is Jody Snyder. I jus wanted to let you know, if you didn't
aleady, tht the Supreme Cour ruing is out and if you have a loc Tacoma News Tribune

the local section, tht we didn't wi and the Supreme Cour tht's the bad news; the good news is tht there has always ben
down there you'JI see on Satuday, May 28, the front page of

some discussion that we would have to back and revisit the stte Envionmenta Impact
Statement now that we have gone though the nationa and made some changes tht we would
have to go back and amend tht anyway. Ths wiJl give us a clean opportty to do so. The other thg tht one of the ruings - and it's a 51-page decision which I'm sue tht we'll

have to get you a copy of in the near futue here - but one of the other thgs it comes into is tht I don't know what/ow ths impacts us but they th it needs to be a public process and not a private process, so tht one we'll nee to make sure tht we tae a look at what does that mean to us as far as Pierce County. The other item. . . tht one I'm sure of the one that I am a litte bit more sue of is tht they have made the decision that the stte Solid
Wase Management Plan, at Pierce County's Solid Wase Management PLan ha the emphais

or has the weight of law that it is law rather than a gudace document and, therefore, on
some of those issues that should make it easier with some of our Corps discussions becaus

they haven't wanted to tae that approach and yet the Supreme Cour went as far as saying, yes it is, it has to be considered the sae level of effort as a law that it is . . . a law, I don't have that languge in front of me but tht was one of the positive sttements that came, so

there's some thgs that we'JI have to work though. WCC may have some more
involvement at the local level in the stte solid wase or stte environmenta impact sttement

process aiong now with the national, but we'll go from there. We probably won't hold a
meeting as a company until next week whenlcause Dan is out and I th ths is somethg
that he will be involved with. But I jus wanted to give you heads up that that did happen,

we didn't win. But I don't see tht as - and I jus taed to Harold - I don't see that as a defeat, neither did he, it jus mean a little bit more work for us. So, sorr for the long
message, and if you have any questions, feel free to give me a calL. Bye-bye.
(END OF RECORDED MESSAGE. cc)

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~ DEFENDANT'S ¡.5 EXHIBIT

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 7 of 44

Exhibit 95

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Document 184-2

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Page 8 of 44

ttio CoWWII CEHT

HELLER EHRMAN WHITE & MCAUUFFE ATTORNEYS
.\ '",lfNr.liH.' OF 'l!OfhUO,,Al (,OI'OIATIO!'S

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W.UHLHGTON 98104.7098

FACSIMIi.E 12061 407'0149

TEUPHQN (206) 4-7-0900

Suu F..NCIC

August 19, 1994
D..NIII. D. SYJDAL

Director

Debora Hyde

and Land Services 2401 South 35th
Tacoma, WA 98409

Pierce County Permits

Re: Land Use Permit and State Environmental Policv Act

Procedures for Land Recovery. Inc. 's 304th Street

Landfill Proiect

Dear Ms. Hyde:

Thank you again for meeting with me and my client, Land Recovery, Inc. (LRI). You suggested that we provide you with our thoughts about permitting the 304th Street Landfill in light of the procedural deficiencies found by the Washington Supreme Court in its decision, William Weyerhaeuser. et ux v. Pierce County. et
al. ("the Decision") .

The Decision requires that both the conditional use permit (CUP) and compliance with the State Environmental Policy Act (SEPA) be revisited. In general, the areas that the Decision requires be addressed are 1) correcting the record of the hearing, including both the testimony from Pierce County staff and the decision document, and 2) supplementing the Environmental

...

alternatives.

Impact Statement (EIS) to more fully discuss proj ect

On this latter point, the Decision speaks particularly of off-site alternatives. In working with the federal agencies on the wetlands fill permit, LRI has also developed on-site alternatives that were not presented in the original EIS. In our opinion, both the hearing record and the environmental documentation couid be supplemented to include this information at the same time that the deficiencies identified in the Decision are addressed.

changed substantially. See chapter i 73 -351 WAC (Criteria for
Downent Produce to USA for
1 RTv USA. No. 98-419L/14962-CS)

Finally, the solid waste landfill regulations have recently

Review in6/99-1/2/99 LRI 1007620
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Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 9 of 44

Debora Hyde August 19, 1994 Page 2

Municipal Solid Waste Landfills, hereinafter "the CMSWL regulations"). As you know, the environmental documentation for which your department will be taking the lead agency role is also intended to be used by the Tacoma-Pierce County Health Department in considering the project's solid waste handing permit. So, both the record and the EIS should include information related to any design or operational changes that may have been triggered by the new laws, Again, since the Decision mandates going back and conducting supplemental hearings and preparing supplemental environmental documentation, LRI believes that the process can also accommodate project revisions required to address these regulatory changes.

beyond these specific areas be addressed, however. In our

We do not believe that the Decision requires that anything

opinion it would be appropriate if the County were to retain a relatively narrow scope in supplementing the hearing record and the EIS. Substantively, only evidence about off-site alternatives, on-site alternatives, and CMSWL regulations needs to be added to the existing record. Procedurally, only limited staff testimony and a new decision document need to be provided.
We think it is important to remember that the Court did not criticize the record with regard to the merits of the landfill. The extensive testimony of experts -- sponsored by both the applicant and by project opponents -- about the design of the project, the potential environmental impacts, the proposed mitigation measures and the like, is still valid. The Decision specifically upholds the project's consistency with the Comprehensive Land Use Plan, an example of an area where the existing record is sound. Using the existing record as much as possible would help the County to minimize the administrative burden and length of the hearing, which is already going to be a cumbersome process.
The Court's overriding concern was with the fact that certain Pierce County staff with knowledge about the project did not orally. testify. Although some portions of the Decision contain broad. language on this topic, in reality the Court's holding was limited to County personnel who authored the staff report submitting by Planning to the hearing examiner, and those who were involved in preparation and review of the EIS. See Decision, p. 10. 'Therefore, to address this concern of the Court, the record only needs to be augmented by testimony from the relevant Pierce County staff.

As to the sta~f report, of course, the particular individual who authored the original report is no longer employed by the County. However, this could be addressed by having someone with
.

Doument Produce to USA for Review 1/26/99-1/27/99
LRT v USA No. 98-419L 114962..S)

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LRI 1007621

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Case 1:98-cv-00419-LB

Document 184-2

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Page 10 of 44

Debora Hyde August 19, 1994 Page 3
oversight responsibility fòr its preparation .testify. Alternatively, a new staff report could be prepared by current planning staff. The latter alternative is probably sounder, but of course the decision is yours. It seems to us that it would be administratively easier to have personnel currently employed by the County testify, rather than subpoenaing ex-employees; and having a new staff report would enable off-site alternatives, onsite alternatives, and design changes required by the CMSWL regulations to be addressed.

Similarly, as to staff testimony about the EIS, not all of the original employees are with your department now. The Decision mandates that the Responsible Official and any staff working on preparing the environmental documentation take the witness stand. Since the original determination of adequacy has been reversed, however. it is irrelevant that the original Responsible Official is not working in your department: a new determination of adequacy will be needed, and must be made with reference to the supplemented environmental documentation anyway. Therefore, a new Responsible Official can provide oral testimony.

The Decision held that this project is a public one, and therefore the EIS was inadequate because it did not contain a sufficient discussion of offsite alternatives. Decision. p. 20. Obviously, additional environmental documentation is needed to
address this concern. Under the SEPA regulations, a

EIS (SEIS) is the appropriate document form to address this situation. See WAC 197-11-405 (4) (b).

supplemental

This need for new information in the SEIS will invariably require that new, currently-employed staff work on preparing and reviewing the document. This is also true because the EIS will be supplemented by information about on-site alternatives and design changes, in addition to the off-site alternative materials dictated by the Decision. In doing so, staff can review the existing EIS as well. Therefore, as to staff testimony about the SEIS, new personnel will be needed in any event, and we believe it is unnecessary for the County to go through the efforts of tracking down the staff who worked on the original EIS.
Note that, in our opinion, the Decision does not require more than testimony from Pierce County personnel about the staff report and the E1S. We do not believe that the Decision requires testimony from uninvolved staff. If the County does not limit the scope of staff testimony to only those areas identified by the Supreme Court, it may have a difficult time administering the hearing process. Of course, your own attorney will provide \ advice to you on this issue, and the scope of staff test imony is obviously one within your discretion.
Doument Produce to USA for Review J/26/99-1/27/99
LRlv USA No. 98-4I9L1

14962..5)

LRI 1007622

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Case 1:98-cv-00419-LB

Document 184-2

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Page 11 of 44

Debora Hyde August 19, 1994 Page 4

Another concern of the Court's that has to do with the record was its criticism of the hearing examiner's decision. As you recall, the Court held that the findings and conclusion were inadequate to determine the basis for the hearing examiner's .decision. Specifically, the Court was concerned with the findings of fact and conclusions of law supporting the holding that the EIS was. adequate; and with the findings of fact with regard to whether the project conformed with the Tacoma-Pierce County Solid Waste Management Plan. Decision, p. 13 and 14,

respectively.

design elements and regulatory requirements. In our opinion,
either method would satisfy the requirements of the Decision,

Here again, to merely address the Court's concern might hypothetically involve relatively limited procedure. The existing decisions could simply be embellished on the two areas identified in the Decision as being inadequate. However, because of the on-site alternatives that are being considered as part of the wetlands permit process and because of the new solid waste landfill regulations, the decision would have to be revised to address those areas of new information as well. The County might well prefer that a completely new decision document be prepared, especially because a new hearing will probably trigger new findings and conclusions. Certainly, the existing documents can be supplemented, but it may be cumbersome to simply try to fill in the gaps identified in the Decision and created by the new

though.

Furthermore, on the topic of hearing examiner generally, the County has the choice of locating a new administrative law judge, or of asking Mr. Thrasher to preside over the new hearings. LRI's only concern is that the hearing examiner write a decision document that complies with the requirements of law, as defined in the Supreme Court's Decision. With all due respect, Mr. Thrasher's written decision was an item of concern from the very beginning. The adequacy of the decision was first raised during the initial appeal to the Council, and the matter was remanded so that the decision could be supplemented - and yet, despite our arguments supporting the hearing examiner, the adequacy of the decision document was a basis for reversal in both the Pierce County Superior Court and the Supreme Court.

different hearing examiner is the County's .LRI has only two

Obviously, the choice of whether to use Mr. Thrasher or a

concerns. One is that the decision document be an adequate one. Regardless of what the final result is, the County should ensure that the decision be complete and detailed_ Usually, this is , addressed by asking the prevailing party to submit findings and conclusions, an approach that the County may well wish to utilize
Doumeni Pruce 10 USA ror
LRt" USA. No.....t.L

Review 1f26/99-1f27/99 0 7 1I''''-OS) LRI 10 623

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Case 1:98-cv-00419-LB

Document 184-2
.

Filed 12/22/2006

Page 12 of 44

Debora Hyde August 19, 1994 Page 5

with any hearing examiner, and that was not employed during the original hearings.

LRI's other concern is with timing. Due to the tremendous amount of time that this whole process has taken, the need to have decisions on the permittability of the 304th Street Landfill has become quite urgent. Both LRI and Pierce County have taken stop-gap measures, but those interim measures cannot last much longer. For that reason, we believe the County should take whatever measures it can to minimize the time needed for the next round. For instance, we hope that a hearing examiner can be located as soon as possible to preside over the next round of hearings. Also, whoever the County chooses should be able to utilize the existing record. To go back and rehear the entire case is not the best approach. Obviously, Mr. Thrasher would be familiar with the record, but because of the time that has passed even he would need to review the transcripts and exhibits to get up to speed. A new hearing examiner would be equally able to review the record, and take only such additional testimony he deems necessary.
For the same reason, LRI hopes that the County will limit the information presented in the SEIS prepared for the project. Obviously, to address the Supreme Court's Decision, the SEIS must include a reasonable discussion of offsite alternatives. Beyond that, LRI suggests using appendices as the primary source of additional information about on-site alternatives and compliançe with the new CMSWL regulations.

The process used for a supplemental EIS (SEIS) is almost identical to that used for the initial EIS. That is,. a draft and final EIS are prepared according to the SEPA regulations governing content, issuance, and commenting on the document. WAC

197-11-400 through 107-11-600. However, the SEIS should not

cover actions, alternatives or impacts that are discussed in the previously prepared documentation. WAC 197-11-620. Also, scoping is optional for an SEIS. Id.

LRI hopes the County will be able to undertake the SEPA process in an expeditious manner, and will be pleased to assist the County in whatever manner is legally and practically

appropriate. For that reason, in our opinion, scoping is

probably not scoping with the SEIS are already done

necessary in this case. We already completed the original EIS, and the topics to be covered in clearly-defined. In a sense, the Supreme Court has the scoping for the SEIS.

\ Also, in the context of the company's application for a
Section 404 wetlands fill permit from the u.S. Army Corps of
Doument Produce 10 USA for
Revvew 1/26/99-1/27/99
LRiv US~ No.9B-419LIJ4962.Q5)

LRI 100762.4
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Case 1:98-cv-00419-LB
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Page 13 of 44

Debora Hyde August 19, 1994 Page 6

Engineers, a scoping notice for an EIS under the National Environmental Policy Act was recently published. Very few comments were submitted by parties other than federal regulatory agencies. The substance of all of the comments was essentially the same as the comments that were received by Pierce. County after the original scoping notice in 1990, and echoed again in the comments made on the draft EIS. For these reasons, scoping on the SEIS seems unnecessary, but of course we will comply with the County's decision on this issue.

Finally, with regard to schedules, LRI hopes the County will be able to move as quickly as possible to address the procedural infirmities identified by the Supreme Court. The background information needed to issue the SEIS is being prepared for the project's NEPA EIS, and is therefore expected to be available for the County in the very near future. This can expedite the schedule for substantially. LRI would like to propose the following schedule, which is consistent with chapter 197-11 WAC as well as chapters 18.10 and 17.08 Pierce County Code:

September 15, 1994: Draft SEIS to County from consultants

October 14, 1994: Draft SEIS published by County for

comment
November 14, 1994: Close of 3D-day comment period
November 30, 1994: Draft final SEIS responding to comments to County from consultants
December 15, 1994: Final SEIS published - Determination of adequacy made by Responsible Official

December 30, 1994: End of SEIS notice of appeal period
January 2, 1995:

Notice mailed Notice mailed

of hearing posted on property and to adj acent property-owners of SEIS appeal published and (if one is made)

January 16, 1995:

Responsible Official's findings and conclusions in response to SEIS notice of appeal (if one is made) issued
End period for filing content of appeal (if notice of appeal has been made)
Hearing commences

January 26, 1995:
February 2, 1995:

:.
Doument Produce to USA for Review 1/26/99-1/27/99
T_RI v USA. No. 98-419L/I-4962.(S)

LRI 1007625

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Debora Hyde August 19, 1994 Page 7

Recognizing that this is a very aggressive schedule, LRI sincerely urges you and your staff to appreciate the immediacy of the 304th Street Landfill project, and the need to have a final decision that would allow for construction to commence during the 1995 season, if the project is permitted.

I look forward to discussing this letter with you. Please call at your earliest convenience so that we may schedule another meeting to more specifically discuss timely processing of project

permitting.

Very truly yours,

HELLER, EHRM, WHITE & McAULIFFE

Daniel D. Syrdal ¡'hj¡JClt.\
cc: Harold LeMay
Harvey Doman Jody Snyder Don Hawkins Kevin Lakey Dave Barrows Polly McNeill

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Case 1:98-cv-00419-LB

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Page 15 of 44

Exhibit 96

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Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 16 of 44

To: LRI SEPA EIS Tea

From: Offce:
Date:

Catheen and Andra

Ck'\ At

Ponld

Dembe 14, 1994

Subject:

Intr to SEPA Work Assignents

KICK-OFF MEETIG TODAY, DECEMBER 14,4:00 P.M. 8M. CONF. ROOM

We have ben asked to prear a new SEPA EI for LR it has ben deteed that the old
onc is no longer sufcient beaus it did not conta an alteatives analysis and beause the

project has changed since the origial proposa The other reasn to prear a new SEP A EIS is that LR wants the state decision-mag prs to rema separte frm the fed
procss...(in a nutshell). In ord to get the state proes rollg faste, we must deliver a

(NPA) procss in hopes that the state pross wi be faste, thus inuencing the fedra

drt SEPA EIS for the clicnts review no late than Janua 6. 1995.
Since we have a lot of work to do between now and then and sice we've aly wrttn the

NEPA DEIS, her's how we're going to mi our efort to compIete the SEPA EIS:
. The SEPA EIS wi "borrw" text frm the NEA DEI when descbing new

project fcatus, the alteatives, etc.
. Refr frm edtig any SEPA EIS text to mae it "sound bette". Ths wi also mi new conuents to the old texL
Mary, Gail, and John McB. wi coop the figu and grphics work (30 hour tota)

Mary wi al work on Plants and Wile. (1 0 hour)
Dave W. wi work on: Ei, Ai Quty, Ught and Glar, Heath and Aesthetics. (70 hour)
Craig wi work on Groundwater Rcsour, Surac Wate Resours, and Population, Conurc, Housig and Lad Use. (16 hour)
Danny wil be in charge of the Summ and wi work on Noise, Trasporttion, and
Cumulative Impacts. (120 hour)

Andréa wi handle: Background, Objectives, Loation, Site Selection, Utity and Conuercial Services, Maig Ust, any tables, and Rcference. (120 hour)

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Case 1:98-cv-00419-LB

Document 184-2

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Page 17 of 44

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Decmbe 14, 199
Page 2
Catblee wi handle Descption of Alternatives, Includig the Prposa, with Lynne's help

on thc alternatives. (120 hour)

Barrws wi provide pep ta, usefu advise, and a thorough reew. (10 hour)
The fonnt of the SEPA EIS wi be ii ree which wi show the re what has ben
crosse out frm the old verion, what has stayed from the old veron, and what our new

text is. The outle for the SEPA EIS wi generay confonn to the old one with some

modcations to acommodte our new inonntion. The outle wi rema in flux unti our
proposa is approved by Piere County, so be prear for some re-organg la.
Each of you wi be given har copies of the above-nam setions frm the old SEP A EIS

and our new NEPA DEIS. Compar the two and mae the SEPA EIS reflec the NEPA in

tenns of changes in the projec confguon, etc. and discussion of the alternatves. In
essence, the SEP A nee to be updte

Pleae edt onto SEPA using NEPA as inse-able text Be nice to thes copies: they ar the

"masters" that wi be tued in 10 W onl Prssing. Plea be cafu to mae your changes

clearly, without a lot of "edts to. the edts". When you nee to cr more th two
sentences of new text pleas wrte thcm on a separ sheet of pape or ty them up on a

me that Word Pr can use. Plea label your insert with your intial and seucntial numbers (i.e., "Inse AF-1 goe to page 2-4"; "Inse CCG-4 her''). TIs wi graty help Word Pr kee trck as well as let Andd know who to as if ther ar quesons.

Pleae begi work as son as you can. Your work is due on or before Wedesay
Decmber 21, 199 (unes you ar avaiable to work Dembe 2629, and t1en we'll ta). There wi be a slams metig Friday, Deembe 16th at 3:30 p.rn Plea be. siÍ to let us

know thcn if you th you wi nee more hour 10 complete your ta Any work that
could be complete th weekend would be appreate Than!

.voj9SO"cp'cp\\

WWC 1003237
DSJ 000822

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 18 of 44

Exhibit 97

.,

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

(lPage 19 of ¡..Us. 44

LAW OF"F"ICES
CORDON. THOMAS. HONEYWELL. MALAN

CA. PETERSON & DAHEIM. P.L.L.C
ONE UNION SOU..RE
SE.ATTLE OF"F"IC:E

TACOMA OFFICE
2200 F"IRST INTE.RSTATE. PLAZ..

POST OF"F"ICE. BOX ii~7 TACOM... WASHLNGTON 8e.01,II.S7
F'ACSIMILE (20e) S72'.SI6

SE..TTLE. WASHINGTA."'~lee E ~
F..CSIMILE: (2015) d~2'8771i
(2015) ..7.1i~~ .. -

1500 UNIVERSITY, SUITE 2101

(20151 S72'!50S0

REPLY TO TACOMA OFFICE

WILLIAM T. LYNN

,J~t ~

October 18, 1996

~l~~~ E-1;.RMf.

Fredrico Cruz-Uribe, MD, MPH Director of Heath . Tacoma-Pierce Count'¡ Heath Deparment 3629 South D Street
Tacoma, W A 98408-6897

Re: 304th Street Ladfill Solid Waste Handling Permt
Dea Dr. Uribe:

This law finn is legal counsel for Bil and Gai Weyerhaeuser who have
appeaed the issuance .of the 304th Street Ladfill Solid Waste Handling Permit issued
by the Heath Deparment on Februar 7, 1996. We are wriúng with reference to the
recent decision by the United States Anny Corps of Engineers to deny the Secúon 404
pennit for the project. Specificaly, we are requesúng that the Deparment exercise its

rights under Secúon XV Pargraph 6 of the pennit to suspend or revoke the pennit. There are two bases for this request.

First, the Deparment was required by law to find the project consistent with

Chapter 173-351 WAC. WAC l73-351-130(4)(a)(iii) requires the applicat to clealy
rebut the presumption that practicable alternaúves to the proposed landfill are available

which do not involve wetlands. At LRl's urging, the Heath Deparment did not make
its own evaluation of this criteria. Instead, it imposed Condiúon 2 under Secúon XI of the decision which required LRl to obtan a Secúon 404 pennit. As you may know,
that pennit requires a similar analysis of pracúcable alternaúve.
By letter dated September 30, 1996, the Corps denied the requested Secúon 404

permit. Among other things, this denial was premised upon the Corps' finding that
pracúcable alternatives are available. Since your decision deferred to the Corps'
analysis, you have effectively adopted, in advance, their findings on this issue. Since

their findings are contra to the cited provision of the regulaúon, this would require

the permit be denied. We would therefore request that you exercise your.authority and
revoke the permit.

The second reason for revoking the permit relates to a clea issue of public
heath. Under SecÚon XV, Paragraph 6,.you can revoke a permit which is contra to
z DEFENDANT'S
rrA96a9.1292+

LRI 1025125
DSJ 000823

S))XHIBIT

l (17

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 20 of 44

CORDON. THOMAS. HONEYWELL MALANCA. PETERSON c\ DAHEIM. P.L.L.C

Fredrico Cruz-Uribe, MD, MPH
October 18, 1996

Page 2

ordinances or if the permit was obtaned by "misrepresentation or faiure to disclose any relevant information". The Corps' also based its denial of the permit on its fiding
that the project did not protect public heath and speificay rased concerns concerning

the protection of the sole source aquifer which underlies the project. In excerpts from the appendix to the Decision, the Corps found that the material presented by LRl had
understated certn impacts and overstated the protections. In Appendix A to the

Decision, a copy of which is attched to ths letter, the Corps found that: .
"Calculations performed by Corps staff since Dra EIS
publication, using published data for the highest level of

quality control, suggest that the minimum'possible leage rate would be about seven times the amount indicated in

the Drat EIS". (pg 3) "It is unreaonable to expet the
Applicant to construct a liner that has a lower leage rate than any documented leage rate at an existing landfilL.
The Corps maintans that leage rates wil be much

higher than the Applicant's estimates." (pg. 4-5)
With respect to estimates of contaminant trsport, the Applicat had asserted

that the trvel time was 120 yeas. The Corps found that the lower limit would be in the rage of i 1 yeas and that "calculations based on the most likely values in the rage

resulted in a tota travel time of about 34 yeas." The Corps also found that in the
event of a tota failure of the leachate protection/collection system, the

"predicted concentrtions at a well i ,00 feet down

gradient would therefore be a minimum of 1,120 times
those given in the Drat EIS, including a tota nitrogen

level of 105 millgras/L or 10 times the maximum

contaminant level (MCL). As long as the water table never drops below the base of the landffl, a tota failure of the LDCS would be unlikely, however, if as little as
10% of the LDCS failed to operate properly, a well 1,000 feet down gradient would be contaminated beyond heath criteria for nitrate."
This is importt new information which should be considered by the Heath

Deparment. If the Heath Deparment agrees that LRl understated the likelihood of leage rates in the liner that would certnly fall in the category of a "failure to
disclose any relevant information". We would ask that you review the information
LRI 1025126
rrAge890. 12912..

DSJ 000824

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 21 of 44

CORDON. THOMAS. HONEYWELL MALANCA. PETERSON S DAHEIM. P.L.LC

Fredrico Cruz-Uribe, MD, MPH
October 18, 1996

Page 3
, . "

develope by the Corps and review its findig that there are practicable alternatives
without wetland impacts. We would request that you then revoke the pemmt.
Very trly yours,

Wiliam T. Ly\n)

0Ql~
v
,

WT:fto
Enclosures
cc: Bill Weyerhaeuser

Clifford Allo
Dan Syrdal

Viki Steiner

LRI 1025127
CTA9.1;22 +

DSJ 000825

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 22 of 44

Exhibit 98

Case 16:35 LRND RECOUERY ~ HELLER 03/29/99 1:98-cv-00419-LB Document 184-2

Filed 12/22/2006

Page 23 ofNO. 434 ¡;Ø2 44

~

STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY
P.O. 80x 47600 . Olympia, Washing/oil 98504.7600

(360) 407-6000 . TOO Only (Hearing Impa¡,edl (360) 407.6006

REGISTERED MAIL
Rcsource Investments, Inc.

P.O. Box 73057

. n. ". ._

- ..,.... "'~,.,. ~ .,.,::~':.;.,

. Piyaiiüp, WÄ98373.. ... ._'H
AIT: Ms. Jody Snyder
RE: Notice of

Determination Per Chapter 90.48.120 RCW of a Substantial Potential for a Violation of the Washington Water Pollution Control Act

Dear Ms. Snyder:

The Deparent of Ecology has determined that the landfill proposed to be constrcted and

operated by Resource Investments, lnc (Rn) near Grham, Pierce County, Washington, has substatial potential to violate state water quality standards through unauthorized discharges to water of the state.
A violation of

the landfill is constructed or operated without adequate avoidance, minimization, and mitigation of impacts to wctlands and other waters of the state, including both surface and ground waters. If undertaken. such actions wil WAC 173-20IA-060(10), l73-201A-070, and may possibly violate other constitute violations of the state's water quality stadards.. Activities likely to result in water quality sectons of violations include excavatig, grading, removing vegetation, or placing fill in wetlands aad other waters of the state, discharging stormwater or leachate to waters of the state, or performing similar activities associated with the construction and operation of the facility.
state water quality standards wil occur if

Within thirt (30) days of your receipt of this Notice ofDetennination, you are required by RCW 90.48.120 to submit to Ecology a full report stating what steps have been and are being taken by you to control the pollution problems described above. This report should include a description of all measures taken to avoid, miimize, and mitigate for impacts to waters of the state, including, but not limited to, the following:
. Measures taken to avoid, minimize, and mitigate for impacts to wetlands, including a wetland mitigation plan for Ecology approval.

. Methods to be used to detain and treat stonnwater and leachate discharges, including a
final Stonnwater Management Plan.
;; DEFENDANT'S ~ 5-: EXHIBIT
DSJ 000826
Domneul Produced to USA for
Review 9/13199

! Q
z
~

! 9()

~No. 98-419Ll \4962-14

LRI 1034071

... $" l1 '1 c£

o

I:x 'i2

Case 1:98-cv-00419-LB 16:35 LAND 03/29/99

RECOUERY ~ HELLER

Document 184-2

Filed 12/22/2006

Page 24 of 44

NO. 434

¡;03

Notice of Determination .. Proposed RII Landfill March 23, 1999 Page 2 of2
. All Known, Available, and Reasonable Treatment (AKAT) methods to be used during

constrction and operation to avoid or minimize impacts to water quality, including Best

Management Practiccs (BMPs).
. Monitoring methods to be used to determine ongoing compliance with water quality

stadards.
. Documentation of proposi= water use on site, including applicable water rights, water
c.ertiffc!ltes, qr otteniec~ss.~.ry ap'pra,v~!s.for .wat~r withdrw.aas~ .. -_., .._'

. All plans, approvals,. and pennits required for compliance with state and local aquatic

protection regulations, including a Post-Closure Maintenance Plan and Emergency Spil Response Plan.
Please submit your report to Tom Luster, Shorelands and Environmental Review Program,.
Washington Departent of

Ecology, P.O. Box 47600, Olympia, W A 98504-7600. In tases whcre the above docuents have already been submitted to Ecology, you may reference those

documents in your report
After reviewing the report, Ecology wil consider the circumstaaices and may issue an appropriate Order or Directive authorizing the proposed project. Work done in wetlands or other waters of the state without the necessary Order or Directive may be considercd a violation of state water up to $10,000 per violation pcr day. quality standards and subject to a fine of
If you have any questions concerning this letter or the necessary submittals, please contact Tom Luster at (360) 407.6918 or tlus461 (iecy.wa.gov.

Sincerely,

7f I (l l"
Gordon White Program Manager, Shore!ands and Environmental Assistance Progr
j

i ,
¡

cc: Ecology, SWRO - Sue Mauerrnaru, Laure Davies, Bill Leonard

i

Doument Prouced to USA for Review 9/13/99
,

i RI v. USA. No.9H-419L/14962-O14

¡

;
1

j
J
1

LRI 1034072
DSJ 000827

Case 1:98-cv-00419-LB
..

Document 184-2

Filed 12/22/2006

Page 25 of VU~DL 44
!

..,.......,

1..

.I

i

STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY
P.O. Box 47600 . Olympia,.

Washington 98504-7600

(360) 407-6000 . TDD Only (Hea,ing Impai,ed) (360) 407-6006

REGISTERED MA
Resource Tnvestments, Inc.

RECEIVED
JIJN 0 8 1999

P.O. Box 73057
Puyallup, VV A 98373

A1T: Ms. Jody Snyder
RE: Order

HELLER EHRMAN

No. DE B-4-013996

Dear Ms. Snyder:

Enclosed is Order No. DE B-4-013996. All correspondence relatig to ths document should be
diected to the Shorelands and Envionmental Assistace Progn, Deparent of Southwest Regional Offce, P.O. Box 47775, Olympia, VV A 98504-7775. If questions concerng the content of

Ecology,
you have any

the document, please call Tom Luster at (360) 407-6918.

Sincerely,

PI_A JL ¡U,,
a;~~ Progr Manager
Shorelands and Environmental Assistace Progn

Enclosure
cc: Jim Green - Corps of Engieers

Senator Marlyn Ramussen Vicki Steiner - CROVV

"1..~.,. ~.a4 ~,r.... ,,,;~ -,
V'.~l(,:-::r" _. _
'J

Doument Produce to USA for
Review 9113199 LRJ v. USA. No, 98-419L 114962..14

l\c( /'~'i.~-.~:;~!j .';~ ~.3iT?

LRI 1034221

~DS SSA AMK JMP .'"
_NJN '=DJW =MEB _EM _JS /
_.,________.__._. .'__ .___._~.u

í t~.Y: \i"- 'l-'C ,,-

)~::-'. ..._----_._--- .

..
DSJ 000828
.."--_. ,'-

~,. ',,;

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 26 of 44

. .

DEPARTMNT OF ECOLOGY

IN TH MATIR OF AN

ADMITRTI ORDER TO:
Resource Investments, Incorporated

) )

ORDER No. DE-B-4-01396

To: Resource Investments, Inc.

P.O. Box 73057
Puyallup, W A 98373

A1T: Ms. Jody Snyder

Ths is an Admstrtive Order requig Resource Investments, Inc. (R to comply
with Chapter 90.48 RCW and the rules and reguations of the Deparent of

Ecology by

tag certin actions which are described below. RCW 90.48.120(2) authories the

Deparent to issue Admstrtive Orders requirg compliance whenever it determes

that a person has violated or may violate any provision of Chapter 90.48 RCW.

The Deparent's determination that a violation has occured, or may occur, is based on
the following facts:

RI has proposed to constrct and operate a laidfill facility near Gram, in Pierce
County, Washington. The landfill will cover 168 acres of a 320-acre site, and will result in discharges to water of the state, includig the placement.of fill in approximately 21.6 acres of wetlands and the discharge of treated stormwater to the wetlands and to Muck Creek.
In order for these activities to be conducted in compliance with state law, Ecology must determe that the discharges to waters of the state have been avoided,
minimized, and mitigated adequately to ensure water qualiiy stadads are met.
Ecology sent a Notice of

Determation to RI on March 23, 1999 requesting

specific inormation on the proposed facility. RI responded on April 8, 1999 and referenced numerous permits, documents and report that more fully describe the proposed project, its impacts, and mitigation measures.

RI has proposed to mitigate for the diect and indiect impacts to waters of the state by creating, restorig, and enhancing wetlands adjacent to the landfll, by detaining and treating stormwater, and by managig landfill leachate. Additional specific details of the proposed landfill facility aid its likely impacts to waters of
the state can be found in the documents referenced below. Doument Produced to USA ror

Review 9/13/99
LRI v USA. No. 98-419L I 14962..14

LRI 1034222

DSJ 000829

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

Document 184-2 Filed 12/22/2006 Page 27 of 44 Order #DE-B-4-013996 to Resource Investments, Inc
May 27,1999
Page 2 019

;

-'

For these reasons, and in accordace with RCW 90.48.120(2):
IT is ORDERED that RI tae the following actions:

Compliance with Other Applicable Permits:
I) RI shall comply with all aquatic resource-related provisions and conditions in the

permits, approvals, and documents referenced below. These provisions and conditions are incorporated herein and are specific conditions of this Order. In
addition, some provisions and conditions of these permits, approval, and

documents are specifically referenced as conditions of this Order.
· Final Supplemental Envionmental Impact Statement, 304ih and Meridian

Ladfill Site, Augut 1995.
· Conditional Use Permt #CP8-89 and Appeal of Condition Decision
#AE9-95/AEIO-95 - Pierce County Deparent of

Plang and Lad

Servces, Janua 2, 1996.
· Reconsideration Decision by Pierce County Hearg Examer, March 19,

1996.
· Final Wetlands Mitigation and Monitorig Plan for the Resource

Investments, Inc. (R Ladfill Facility, Pierce County, Washigton,
Janua 22, 1996
· Pierce County Hearg Examner's Decision on General Wetland
Reasonable Use Exception: Land Recovery, Inc. 304ih Street Ladfll

Project, Case No. WRU5-96, November 27, 1996.
· County Wetlands Permit, Tacoma-Pierce County Planing and Lad
Services, April

7, 1999, File Nos. 218823, 218824, and 224345.

· Clarfyg Report for the 304ih Street Ladfll Solid Waste Permt

Application, Pierce County, Washington, Appendix 1-D Wetlands
Demonstrtion, September 1995.

· Stormwater Site Plan, 304ih Street Ladfll, Februar 27, 1996.

· Lage Parcel Erosion and Sediment Control Plan, December 1998.
· Industral Waste Discharge Permit (for landfll leachate pretreatment)

#PC03096 - Pierce County Public Works Deparent.
· Clarfyg Report for the 304ih Street Ladfll Solid Waste Permt

Application, Pierce County, Washigton, September 1995, Volume I, Section 4.6 Liner System, Section 4.7 Leachate Collectioii System, and Section 4.8 Leachate Handling and Treatment, and Volume II Section 8 Leachate Collection System.
· Solid Waste Handling Permt #27-050 - Tacoma-Pierce County Health

Deparent.
Document Produce to USA for

Review 9/13/99
i RI v USA. No. 98.419L/14962.o14

LRI 1034223
DSJ 000830

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 28 of 44

Order #DE-B-4-013996 to Resource Investments. Inc May 27. 1999
Page3 019
. Hydrulic Project Approval #B4-13996-08, Febru 25, 1999,

Washigton Deparent ofFish and Wildlife (WFW.
. NPDES Stormwater Permit #S03-002603 - Washigton Deparent of
Ecology (Ecology) Water Quality Progr.

. NPDES Stormwater Baseline General Permit for Industral Activity #S03002557 - Ecology Water Quality Progr.

. Siiace Water Monitorig Plan (EMCON 1999).
. Clarfyg Report for the 304th Street Ladfll Solid Waste Permt

Application, Pierce County, Washigton, September 1995, Volume m, Section 12.1 Groundwater Sampling and Analysis Plan, and Section 12.2 Leak Detection/Collection System Monitorig.
. Letter ofConcUlence, Ecology Solid Waste and Financial Assistace Progr, December 28, 1995.
. Forest Practices Permt, pendig, Washigton Deparent of

Natu

Resources.

Additions or changes to these referenced permits, approvals, or documents that would result in changes to any condition of this Order are subject to review and
wrtten approval by Ecology.

Wetland Mitigation Conditions:
2) RJ shall complete the mitigation measures described in the Final Wetlands

Mitigation and Monitoring Plan for the Resource Investments. Inc. IR Ladfll
Facilitv. Pierce Countv. Washington. Januar 22, 1996 (the Mitigation Plan);
mitigation site consisting of

except as modified or clarfied in ths Order. The Mitigation Plan requies a a total of 19.4 acres of wetland creation, 7 acres of
wetland enhancement, and necessar

wetland restoration, and 38.6 acres of

buffers, to mitigate for the phased filling of21.6 acres ofwetIands.
All initial compensatory mitigation will be performed on the 304th Street site
adjacent to South Creek and shall meet all objectives and performance stadads stated in the Mitigation Plan for water regime (Section 4.3.1), vegetation strctue

(Section 4.3.2), and habitat attbutes (Section 4.3.3). Ifmonitorig demonstrtes
that Mitigation Plan requirements have not been met (per Chapters 5 and 7.1,2, and 4), RJ is required to develop and implement contingency measures that
adequately mitigate for the loss of aquatic resources. These contigency measures
shall be subject to Ecology's review and approval. If

Ecology determines that it is

not feasible to perform the contingency work on-site, RJ may be requied to

implement additional off-site mitigation measures, such as wetland creation, enhancement, and/or preservation. Encroachment into established buffers shall not be allowed as a contingency measure.
Document Produced to USA for Review 9113/99
LRI VO USA. No. 98-419L/14962-O14

LRI 1034224

DSJ 000831

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 29 of 44
Page 4 019

Order #DE-B-4-013996 to Resource Investments, Inc May 27, 1999

3) Wetland Monitorine Reuort: RT shall produce monitorig report for Ecology's

review and -approvaL. These report shall contain the results of monitorig as
described in the Mitigation Plan, including, but not limited to water regie, vegetation, fauna, development of habitat strctue, and buffers at the site in year
1,2,3,5,7, and 10; eveiy 5 year thereafter durg project operations; and year 5

and 10 after project closure. These report shall discuss the relative success and/or failure of the mitigation site in achieving each of the stated objectives and
performance stadards. If any of the goals or objectives are not being met, the

report shall include remedial actions being proposed or implemented to allow the stadads to be met.

4) Lone-Term Protection: RT shall have a protective covenant acceptable to Ecology placed on the mitigation site, including its buffers. This protective covenant shall be recorded on the deed for real propert and fied with the Pierce County Assessor's Offce with ninety (90) days of the issuance of this Order. A copy shall also be provided concurently to Ecology. Permanent protection shall be in the form of a deed restrction, conservation easement, or other similar protective covenant that ru with the land.
The protective covenant shall include the following provisions to be established in perpetuity

· The site shall not be developed for residential, co=ercial, agrcultul, livestock grazing, hunting, industral uses or any other use incompatible
with its dedication as an aquatic resource mitigation site and wildlife habitat. Human access shall be limited so as to prevent degrdation of aquatic resource fuctions and values and wildlfe habitat. · Motorized access to the site shall be allowed only for management of the
fuctions and values associated with the mitigation goals and objectives.

timber is allowed only as consistent with adaptive management of the site to ensure protection of aquatic resources and wildlife habitat, or as otherwise approved by Ecology. · The site shall be fenced and fences shall be maintained so as to prevent
. No co=ercialloggig shall be allowed on the site. Removal of

livestock entr.

Sunace and Ground Water Mitigation Requirements:
5) RT shall adhere to the conditions of Ladfill. Pierce County. Wash in

the fial Stormwater Site Plan. 304th Street
!!on. Februar 27. 1996 (the Stormwater Plan), as

approved by WDFW. All plans and activities shall be consistent with the Storm water Manaeement Manual for the Pueet Sound Basin.
Doument Produced to USA for

~No.98-419L/i4%2"(14

Review 9/13/99

LRI 1034225
DSJ 000832

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 30 of 44

Order #DE-B-4-013996 to Resource Investments, Inc May 27, 1999
Page 5 019
6) All stormwater monitorig conditions ofHPA #B4-13996-08 and Solid Waste
Permit #27:050 are incorporated herein as conditions of

ths Order.

RI shaH submit two copies of all required monitorig and compliance report to
Ecology's Shorelands and Environmental Assistace Progr, Southwest

Regional Offce. These report shaH include results of the foHowig:
· monitorig at each stormwater discharge point durg the fit storm event

after October 1st of each year that results in a measurble discharge from the stormwater system.
. monitorig at each stormwater discharge point i=ediately upon

determing that one inch or more of precipitation has fallen within a 48hour period.
. quarerly monitorig at each stormwater discharge point.

The report shall describe the results of monitorig and shall compare the results with applicable nartive and numeric criteria contained in the state water quaty stadads, WAC l73-20IA.

7) Stormwater Detention: detention ponds shall be sized and designed to release flows at a rate no greater than the pre-developed peak ruoff at the site, uness
otherwse authorized though changes to the fial approved Stormwater Plan.

8) A Post-Closure Maintenance Plan for the dispersion berm, conveyace system,

and stormwater ponds shall be submitted for Ecology's review and approval with one year of completing Phase One constrction of the landfill facilty.
9) RI shall comply with all sampling requirements described in the Clarfyg

Report for the 304th Street Ladfill Solid Waste P=it Application, Pierce
County, Washigton, September 1995, Volume II Section 12.1 Groundwater

Sampling and Analysis PLan and Section 12.2 Leak Detection/Collection System Monitorig. Two copies of each report shall be provided to Ecology's Shorelaads
and Envionmental Assistace Progr, Southwest Regional Offce.
waste and leachate to and from trcks shall occur only with areas of

10) Trafer of

the landfll within the leachate collection system, stormwater management system, or other approved water treatment facilities that wiH prevent ruoff of potentiaHy
containated water into waters of

the state. Al equipment used to trsport or

handle waste shall be washed within these same areas.
Wash water containing oils, grease, or other contaants shall not be discharged

into state waters except as authorized by an NPDES or state waste discharge permit. Document Produced to USA for
Review 9/13/99
1 RI.. IJSA. No. 98-419L f 14962-014

LRI 1034226

DSJ 000833

Case 1:98-cv-00419-LB

Document 184-2 Filed 12/22/2006 Page 31 of 44 Order #DE-B-4-013996 to Resource Investments, Inc
May 27,1999 Page 7019

Emergency/Contigency Measures:
19) Spils into state waters, spils onto land with a potential for entr into state waters, or other significant water quality impacts, shall be reported i=ediately to
Ecologys Southwest Regional Spil Response Offce at (360) 407-6300.
If any work at the project or mitigation site results in distrssed or dyig fish, or

results in any discharge of oil, fuel, or containants into state waters, or onto land with a potential for entr into state waters, RT shall imediately tae the

followig actions:
a) Cease the activity that may be causing the discharge.

b) Assess the cause of the water quality problem and tae appropriate

measures to correct the problem andlor prevent fuer environmental
damage.
c) In the event of

fiding distressed or dyig fish, the opertor shall collect

fish specimens and water samples in the afected area and, with the fit

hour of such conditions, make every effort to have the water samples analyzed for dissolved oxygen and total sulfides. Ecology may require such sampling and analyses before allowing the work to resume.
d) In the event of a discharge of oil, fuel, or containants into state waters, or

onto land with a potential for entr into state waters, containent and
cleanup effort shall begi i=ediately and be completed as soon as

possible, tag precedence over normal work. Cleanup shall include

proper disposal of any spiled material and used cleanup materials.
e) Notify Ecology and WDFW of the natue of

the problem, any actions

prevent fuer problems. .
spill into state waters.

taen to correct the problem, and any proposed changes in operations to

20) Fuel hoses, oil dr, oil or fuel trfer valves and fittgs, etc., shall be checked

regularly for drps or leak, and shall be maintained and stored properly to prevent

Additional Reportng Requirements:
21) Rl shall provide to Ecology's SEA Progrm an anual report that includes the

following information:
. General background description of

to date; Doument Produced to Review 9/1 3/99 USA for
LRI \I USA. No, 9S-419L 114962-014

the project constrction and operation

LRI 1034228
DSJ 000834

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 32 of 44

.

Order #DE-B-4-013996 to Resource 1nvestments.1nc May 27,1999

Page 6019
Water Use:
11) Rl shall not withdrw water in excess offive thousand (5,000) gallons per day

from its existing well at the 304th Street site, unless it receives a water rights permt from Ecology. No other wells shall be drlled without wrtten approval
from Ecology.

Constrction Conditions:
12) Constrction of

the project and mitigation site shall be implemented per the conditions of the Constrction Stormwater NPDES Permit and the Constrction Phase Stormwater Pollution/rosion and Sediment Control Plan. unless otheiwise approved by Ecology.

Constrction shall also conform to the conditions of

the HPA #B4-l3996-08,

unless otheiwise approved by WDFW.

In all cases, Rl shall tae all necessar measures to prevent exceedaces of water
quality stadads and criteria.
13) In order to mainta the integrty of the landfll liner, constrction equipment shall be restrcted to that specified in the Constrction QA/QC Plans dated September 14, 1995, uness changes are authoried by Ecology.

14) All constrction debris shall be properly disposed of on land so that it canot enter
wetlands or other watemodies or cause water quaty degrdation to state waters.
15) All excess excavated material shall be disposed of above ioO-year floodplain and

shall be contained so as to prevent its re-entr into waters of the state.

16) Erosion control devices (e.g., filter fences, hay bales, etc.) suitable to prevent
exceedaces of state water quality stadards shall be in place before stag

project constrction and shall be maintained thoughout constrction.

17) Durg constrction, hydroseeding may be done to stabilize slopes and soils until
other required plantig is completed. Hydroseed mix shall consist of native, noninvasive, or anual plant species only.

18) The use of

herbicides to control invasive plants may require additional permits

from local, state, and/or federal agencies. Rl shall obtain all necessar permits

before applyig herbicides at the project site or at mitigation sites.
Doument Produced to USA for Review 9113/99
i Rlv USA. No. 98-41ssL/14962..14

LRI 1034227

DSJ 000835

Case 1:98-cv-00419-LB

Document 184-2

Order #DE-B-4-0I3996 10 Resource Investments, Inc May 27,1999
Page 8 019

Filed 12/22/2006

Page 33 of 44

. Any design, constrction, or operational changes from the project as

permitted;
. A description of al events that have resulted in non-compliance with ths
Order, including:
. the tye and number of events (e.g., spils of leachate, erosion into waters of

waste material or
the state, etc.);

· the date and durtion of the event and any subsequent non-

compliance; and,
. corrective measures taen in response to these events.

Ths information may be incorporated into the anual report provided by Rl to
the Tacoma-Pierce County Health Deparent, as required in Permt #27-050, and

Ecology's Solid Waste and Financial Assistace Progr, as required by WAC 173-351-200(11). --

General Conditions:

22) Ths Order does not authorie diect, indiect, permanent, or tempora impacts to
waters of the state or related aquatic resources, except as specifically provided for in conditions of ths Order.
23) Ths Order does not exempt and is conditioned upon compliance with other

stannes and codes admstered by federal, state, and local agencies.
24) For puroses of this Order, the term uRn shall mean the employees of

Resource

Recovery, Inc. and its agents, assigns, and contrctors.

25) Rl shall provide access to the project site and all mitigation sites upon request by
Ecology personnel for site inspections, monitorig, necessar data collection, or to
ensure that conditions of

this Order are being met.

26) Rl shall keep copies of

this Order and all related permits, approvals, and documents on .the project site and readily available for reference by the project
managers, constrction managers and foremen, other employees and contrctors
of RI and state agency personnel.

Rl shall ensure that all appropriate supervsors and contrctors at the project site and mitigation sites have read and understad relevant conditions of ths Order and all relevant permits, approvals, and documents referenced in ths Order. RTI shall provide to Ecology a signed statement from each supervisor and contrctor that they have read and understad the conditions of this Order and the abovereferenced permits, plans, documents and approvals. These statements shall be provided to Ecology within 14 days from issuance of this Order. Rl shall also
Doument Produced to USA for

Review 9/13/99
~ No. 98-419Lf 14962-014

LRI 1034229
DSJ 000836

- .."

Case 1:98-cv-00419-LB
..

Document 184-2 Filed 12/22/2006 Page 34 of 44 Order #DE-B-4-0I3996 to Resource Investments, Inc
May 27, 1999
Page 9 019

provide a: simlar signed statement to Ecology ftom each new supervsor or

contrctor hied or assigned after the project begis with 30 days of hirg.
Ecology retain continuing jursdiction to make modifications hereto though
supplemental Order, ifit appear necessar to fuer protect the public interest.

Failure to comply with this Order may result in the issuance of civil penalties or other actions, whether admistrtive or judicial, to enforce the terms of ths Order. AIy person
who fails to comply with any provision of this Order shall be liable for a penalty of

up to

ten thousand dollar ($ i 0,000) per violation for each day of contiuig noncompliance.
Ths Order may be appealed. Your appeal must be filed with the Pollution Control
Heargs Board, P.O. Box 40903, Olympia, Washington 98504-0903 with thir (30)

days of your receipt of this Order. At the same tie, your appeal must also be served on the Deparent of Ecology, c/o The Enforcement Offcer, P.O. Box 47600, Olympia, Washington 98504-7600; and on the Deparent of Ecology, Shorelands and
Environmental Assistace Progr, P.O. Box 47600, Olympia, Washigton 98504-7600.

Your appeal alone will not stay the effectiveness of this Order. Stay requests must be submitted in accordance with RCW 43.2lB.320. These procedures are consistent with Chapter 43.2lB RCW.

DATED this 2. ßrl day of m. , 1999, at Olympia, Washigton.

~~ '4.Gordon Whte
Progrm Manager

Shorelands and Envionmental Assistace Progr

Document Produced to USA for
Review 911 3/99
LRI v. USA. No. 98..19LI 14962-014

LRI 1034230
DSJ 000837

. ..

Case 1:98-cv-00419-LB

Document 184-2

Filed 12/22/2006

Page 35 of 44

DOCUMENT HAS BEEN REMOVED FOR PRlVILEGE
PRIV. TRACKIG NO. IYf 104.03-1

LRI v. UNITED STATES 98-419L 14962-00014
No.

71448.01 .SE (\J4_01!.DO)

LRI 1034231
DSJ 000838

"

Case 1:98-cv-00419-LB

Document 184-2

,.
,..:...,
~. . p.o. Po.

,(~)

'V

Filed 12/22/2006

(. t: 0 ~ c.? L Æ- \C _" '"

Page 36 of 44

l
¡

STATE Of WASHINGTON

i":-I-.'r:I""~r\ _'..L.,. ~U

. DEPARTMENT OF ECOLOGY 99 Jüii I I PH I: : 9
4760 . Olyynpl,,~a.h;ni:t~ 9R.~04.76( :~::I.L(F: ;':¡I,\I'iAli
(360) 407.6000 . TOD Only (Heanne tOlF"iircd) (360) 407-6oo\'iHIT£ & MCAULIFFE

June 11, 1999

CERTIFIED MAIL

Poal-II. Fa. Nota J

7671

Co.

Resourc Invesunents, Inc.

f"on.,
IU

Phone

P,O, Box 73057
PuY811up, WA 98373
A'I: Ms. Jody Snyder

flU'

RE: Amendment to Order #DE 8-4-013996
Dea Ms. Snyder:
Enclosed is Order /IDE B-4-013996, Firt Amendment. This amendment is based on your
reuest that Ecology allow additional time for Resource Recover, Inc. (RRI) to comply with
Condition #26 of

the original Order. That condition, in par reuired RRI to provide signed

s1atcnnciits iTom various projccl-n:llite personnel within 14 days of issuance of the Order. The

condition Was included to ensure that the people working at the project site were familar with
!1le reuirements uf the Order so that water quality violations could be avoided.

TIie Orocr was issued on May 28, 1999, which would have required that the signed stateents be
provided by June 11. Because the Order was delayed in the mail and was not reeived until June 7, RR) had only a few days to comply. The enclosed amendment provides a compliance date of

June 21, which is 14 days ftm the date of

reeipt

If you have any questions concenning this document, please contat Ecology's Tom Luster at
(360) 407-6918 or tIus461 (ãJecv.wa.~ov. The enclosed Order may bc appealed, per the

procedures described iii \he Order.

Sinceely,

Program Manager Shorelands and Environmental Assistace Program

6o~

A_ "-- - W~

Cc: Jim Gren - Coips ofEn¿¡iiieers
Senator Marlyn Rasmussen Vicki Stciner - CROWD
--NJN =OJW =MEB =EM _JS
Doument Produced to USA for

~gDS \(SSA ~ ~M?

~
_n "__.u
.. ... --.-,

Review 9/13/99
LRI v USA. No. 9E-4!9L f 14962-014

LRI 1034232

o

DSJ 000839

Case 1:98-cv-00419-LB

Document 184-2
DEPARTMT

Filed 12/22/2006

Page 37 of 44

OF ECLOGY
)
)

IN TIiE MA'IR OF AN .

ADMINTRTI ORDER TO:
Resource Recovery, Incorporated

ORDER No. DE B-4-013996 First Amendment

To: Rcsourc Investments, Inc.
P.O. Box 73057
Puyallup, W A 98373
ATI: Ms. Jody Snyder

This amendment is issued under the provisions of Chapter 90.48 RCW and WAC 173-20IA.
Administr!Íve Order No. DE 8-4-013996 is hereby amended:

TIie portion of Condition 1126 that reads:
"These stateents shall be provided to Eclogy within