Ecology Issues Flawed
Sec. 401 Certificate & Revised Order

On June 9, the Department of Ecology issued a revised sec. 401 certificate for third-runway work in wetlands. Ecology also revised its order that spells out in detail the restrictions & conditions imposed on that construction work. These revisions were supposed to implement the Supreme Court's ruling of May 14, but runway opponents quickly found that important parts of that ruling were not included.

Earlier, the Port had written to the Airport Communities Coalition (ACC) that it was free to start construction immediately. However, at that time the Port did not have a current, valid sec. 401 certificate, nor had the Port amended its Work Plan to come into compliance with the ruling from the Supreme Court.

Port Still Not in Compliance, Say Opponents

ACC responded, advising the Port and Ecology that the Port's Work Plan, construction bid documents & other materials “are premised on violations of the conditions which the Washington Supreme Court has imposed.” ACC pointed out to Ecology and the Port several parts of the court's ruling that had not been taken into account. The Port in fact did not begin construction work “immediately”, but waited for issuance of the new order.

After the revised order was released, ACC renewed its criticisms. Although the Supreme Court said that fill must completely free of petroleum by-products (TPH), Ecology plans to allow use of fill with some TPH contamination. Ecology has not yet required the Port's Work Plan to accept the contamination limits required for several toxic substances by the PCHB and the court. In fact, the Work Plan may violate State regulations that apply generally to arsenic, chromium, & barium (not part of the PCHB litigation). The court flatly forbad the use of fill from sites previously contaminated, but Ecology is willing to allow that.

Ecology Ignores Criticisms, PCHB Appeal Follows

Ecology did not respond to these criticisms, which led to ACC appealing the new certificate and order to the Pollution Control Hearings Board on July 8. See companion article.

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Ecology's Order and the Port's Work Plan, taken together, spell out how the Port & its contractors are supposed to meet the criteria for runway fill. Potential sources of runway fill are to be pre-screened. If a source passes this pre-screening, then sampling & laboratory sampling are to be done by qualified independent consultants to determine whether the fill is in fact acceptable. Detailed records are to be maintained, to track all testing, to track all fill by source and by location in the embankment. Ecology is to be kept informed at every step of the way. Monthly summary reports are to be filed with Ecology by the Port. (By the way, these reports are readily available from the Port, & the intention is to post them on the Port website, as they are received.)

The idea of the plan is sound. The main difficulty is in the definitions of permissible upper limits for each contaminant. (In some cases, there are issues about the particular testing method to be used -- some simply don't do what's required.) It appears that the revised order was prepared in undue haste, failing to revise the Work Plan to match the section 401 order, which itself has to be in compliance with the rulings of the court, the Pollution Control Hearings Board, and other agencies. And the gaps between the Work plan and the rulings are all in favor of allowing more pollution than the court & others allowed. Thus, the Work Plan is flawed, because it would allow contamination forbidden by general State regulations, or Ecology, the Pollution Control Hearings Board, or the Court, even though there is apparently no remaining dispute about what the limits should be. Legally, a Work Plan cannot be allowed to override court orders, State regulations, & so on.

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