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Dissenting Opinion Of Board Member Sullivan


25 JASON SULLIVAN, Member (dissenting)

26

27

28 You are being given the following notice as required by RCW 34.05.461(3): Any party

29 may file a petition for reconsideration with the Board. A petition for reconsideration must be filed

30 with the Board and served on all parties within ten days of mailing of the final decision. WAC

31 46108-565.

32 I agree with the majority opinion that the language in RCW 43.2 IC.075(7) grants the Board

33 sole jurisdiction over SEPA appeals linked to an appeal of a SSDP. However, after a review of

the 34 record and consideration of the hearing testimony, I respectively disagree with the Board's

finding 35 that the County complied with both the substantive and procedural requirements of

SEPA.

36 The testimony and exhibits presented by Lakeside and the County during the hearing

37 demonstrated that Lakeside's proposed soil remediation is to be conducted as part of the

38 development of an asphalt plant on the site. The County, as the SEPA lead agency, therefore is

39 required to comply with WAC 197-11-250(4), which provides that when a soil remedial action

40 under MTCA is part ofa development proposal, the procedures in WAC 197-11-256 through

WAC

41 197-11-268 shall be used to combine the procedural requirements of SEPA and MTCA, to the

42 extent practicable.

43 The record also demonstrated that during the SEPA process, the County took no steps to

44 combine the procedural requirements of SEPA and MTCA. The County's failure to comply with

45 the procedural requirements of WAC 197-11-256 through WAC 197-11-268 denied the public


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the 46 opportunity to review the specifics of the soil contamination and the proposed remediation

plan

47 for the containment soils. It also negatively impacted the ability of the public to comment on

these

48 environmental issues.

49 The opportunity for the public to contribute and fully participate in the evaluation of

50 potential impacts to the environments is one of the guiding principles of SEPA statute

established

51 in RCW 43.21.020(3) and its implementing rules as provided in WAC 197-11-030. The County

52 failed to comply with letter and spirit of these procedural requirements; thus, its decision to issue

53 the MDNS violated SEPA. Therefore, I respectfully dissent and would reverse the County's

54 MDNS determination in Issue 8 and invalidate the SSDP.

55 Lakeside consultant Farallon's letter dated September 1, 2016, clearly stated that the soil

56 on the site exceed the MTCA levels for clean-up. Ex. ACIT-21. While Farallon's letter states that

57 Lakeside planned a voluntary independent clean-up of the site as part of site acquisition (see Ex.

58 ACIT-21, p 2), the testimony and exhibits presented by Lakeside and the County clearly

59 demonstrated that the clean-up would be in conjunction with the redevelopment of the site. The

60 County, acting in its lead agency capacity, issued a comment letter on November 18, 2019, to

61 Lakeside on the proposed asphalt plant and associated documents in both the shoreline and

building

62 permit files. In the letter, the County requested that Lakeside submit a combined and revised

SEPA 63 Checklist "to include all aspects of the project (soil remedial (GRDEI 8-0032),

constructions of


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64 the facility (COMIv118-0014) and its new driveway (SHOR18-0032)." Ex. RICC39, 19.1

(emphasis 65added); see also, Finding of Fact 34-34.

66 The County's November 1 8, 2019, comment letter specifically makes the soil remediation


67 part of the development proposal for SEPA purposes under the authority granted pursuant to

WAC 68 197-11-060(3)(a). This provision of the SEPA rules requires the lead agency, in this case

the


69 County, to "make certain that the proposal that is subject to environmentally review is properly

70 defined." Additionally, as provided in Finding of Fact 25 in the majority decision, only after the

71 grading permit for the soil remediation, SSDP, and the commercial building permit were all

72 submitted to the County did the County have a sense of the full scope of the Project. Finally,

73 Conkin, Lakeside's expert, testified that Lakeside was "in the process of developing a cleanup

74 action that would be performed in conjunction with redevelopment." Conkin Testimony al 412-13

75 (emphasis added)

76 While Lakeside's 2016 letter to Ecology indicated that Lakeside would be undertaking an

77 independent cleanup action, the direct evidence presented during the hearing clearly

demonstrated 78 that the actual cleanup would be "performed in conjunction with redevelopment,"

79 Following the County's November 18, 2019, Lakeside submitted a revised and combined

80 SEPA checklist that expressly identified that the cleanup of the contaminated soils would occur

as 81 part of the development proposal that would be evaluated under SEPA. Ex. RKC-58, pp. 2, 6.

After 82 making the soil remediation part of the proposal to redevelop the site with an asphalt plant,

the


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83 County then failed to comply with WAC 197-11-250(4), which provides that:

84 When the remedial action is part of a development proposal, the procedures in

85 WAC 197-11-256 through WAC 197-11-268 shall be used to combine the

86 procedural requirements of SEPA and MTCA, to the extent practicable.

87 WAC 197-11-250(4) (emphasis added); .Planned Parenthood of the Great NW. v. Bloedow, 187

88 WII, App. 606, 622, 350 P.3d 660 (2015) (use of the word "shall" is a mandatory directive).

89 Although WAC 197-11-250(3) states that the provisions of WAC 197-11-253 through

90 WAC 197-11-268 do not apply to independent remedial actions, in this case the clean-up is not

91 "independent" from a development proposal, it is considered part of one integrated and single

92 project. To read that development projects that include remediation actions that are not required

93 under an order or consent decree as somehow exempting the Project from WAC 197-11-250(4)

94 renders this section superfluous. Again, WAC 197-11-250(4) states that "[w]hen the remedial

95 action is part of a development proposal, the procedures in WAC 197-11-256 through WAC

96 19711-268 shall be used

97 This SEPA rule contains no language stating that it only applies to projects that include

98 remediation following an order or consent decree. It applies to all remediation associated with

99 development regardless if the clean-up is being undertaken due to an order or descent decree or

100 voluntarily by the property owner without an order to descent degree. Bravern Residential Il,

LLC 101 v. Dep 'l ofRev., 183 Wn. App. 769, 777, 334 P.3d 1182 (2014) (regulations must be

interpreted in

102 a manner that gives effect to all its language without rendering any part superfluous).


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103 In my view, the County violated WAC 197-11-250(4) by not following the procedures in

104 WAC 197-11053(4), WAC 197-11-256(1), and WAC 197-11-2590), (2), which are set out

105below:

106 WAC 197-11-253(4) provides that when a remedial action is part of a development

107 proposal the lead agency shall comply with the criteria in WAC 197-11-922 through

108 19711-946.

109 WAC 197-11-256(1) specifically requires the County to evaluate the available information

110on the hazardous substance at the facility prior to conducting the Remedial

111 Investigation/Feasibility Study (RI/FS) under MTCA (WAC 173-340-350).

112 WAC 197-11059(1) provides that a DNS shall be issued no earlier than the RI/FS. An

113 MDNS is simply a type ofDNS. see, City ofPuya11up v. Pierce cniy., 8 WII. App.2d 323,

114 346, 438 P.3d 174 (2019). Thus, references to DNS in the SEPA rules include MDNS. The

115 County issued the MDNS on April 14, 2022, prior to the completion of the RI/FS as the


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1 RI/FS has not yet been prepared. Conkin Testimony at 415-16. Conkin„ Lakeside's expert,

2 testified that the report he had mentioned during his testimony is both the RI/FS required

3 under WAC 173-340-350 and the draft clean-up plan. This report has not yet been

4 prepared as Lakeside had been holding off until the permits have been approved/issued in

5 order to prepare the RI/FS Report. Id.

6

Additionally, WAC 197-11-259(2) requires that the public comment period on the DNS

7 shall be the same comment period of the MTCA document, which in this case includes, at

8 a minimum, the RI/FS documentation. The public comment period did not include the

9 MTCA document and therefore the public was prevented an opportunity to provide

IO Comment on this document as required by SEPA.

11

By failing to comply with the procedural requirements established in WAC 197-11-253(4),

12

WAC 197-11-256(1), and WAC 197-11-259(1), (2), the County failed to fully disclose the nature

13 of the contaminated soils and the proposal to remediate the contamination and to allow the

public 14 to fully contribute and participate in the evaluation this information. Therefore, the

MNDS shou d

be withdrawn pursuant to WAC 197-11-340(3)(a)(iii) and a new threshold determination be

issued

15 once the RI/FS has been prepared and the public given an opportunity to provide public

comment.

17

Also, as Citizens argued in its closing brief, an IVIDNS that relies on inadequate or

incomplete

18 information about project impacts is noncompliant with SEPA requirements and must be

reversed

19 and remanded for additional review. Conservation NW. v. Okanogan Cnly., 194 Wn. App.

1034,

20


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2016 WL 3453666, *31 (2016) (unpublished nonbinding authority per GR 14.1). Here, the

21 incomplete information, at the time the County made its MDNS decision, is the missing

RI/FS

1 document which is expressly prepared "to collect, develop, and evaluate sufficient information

2 regarding a site to select a cleanup action See WAC 173-34-350. The County was also

3 potentially missing public comments on this missing information as the pubic was not provide an

4 opportunity to contribute to the analysis.

5 Because I would reverse the MDNS, the SSDP that relied on the MDNS should also be

6 reversed and remanded back to the County until such time that a new threshold determination that

7 complies with WAC 197-11-253 through WAC 197-11-268 is issued by the County. Ci/y Q/

8 Puyallup v. Pierce cniy., 20 Wn. App.2d 466, 471, 500 P.3d 216 (2021) (DNS or an MDNS that

9 fails to comply with SEPA is void, and decisions based on such void SEPA determination are also

10void).


11SHORELINE HEARINGS BOARD

12

13JASON SULLIVAN, Member (dissenting)

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