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HomeMy WebLinkAboutQuendall Terminal HEX Appeal without Exibits_09-151Page 1 of 13 ack 2302 N.E. 28`"StreetSouthEndGivesBRenton, Washington 98056 A Washington non-profit Colpondon brad827(d)hotmail.com Brad N1choISM4 Prsidb#425)445-0658 September 24,2015 CITY OF RENTON Mr.Phil Olbrechts SEP 24 2015 Renton Hearing Examiner Cly 1055 South Grady Way RECEIVED Renton,Washington 98056 CITY CLERK'S OFFICE RE:Timely Notice of Appeal of LUA-09-151 FEIS Adequacy Decision RE: $250.00 appeal fee included Dear Mr.Hearing Examiner, The above noted adequacy decision speculates and presumes a specific baseline environmental condition and then overlays only one si;anificant storm water management alternative onto that presumption.The decision is invalid. Alternatives to a proposed action" and the discussion of alternatives forms the "Heart of an Environmental Impact Statement"see Alaska v.Andrus 580 F2d 465, Western Oil and gas v. Alaska 439 U.S 922,99 Supreme Ct.303,58 L. Ed. 2d 315. An Agency "may not define its objectives so narrowly that only one alternative emerges from among the environmentally benign ones" citing City of New York v. Department of Transportation 715 F.2d at 715 The un-phased and so called "Final" decision"defines" one speculative site configuration then dictates one method of protecting water when they may not do that"id est. Upon review, our courts affirm the significance of storm water pollution. See Storedahl Properties LLC v. Clark County 143 Wn. App. 489. Stating, "The EPA identifies storm water runoff as (verbatim) "the most significant source of water pollution today" (emphasis supplied) finding, "Impervious surfaces significantly increase the volume and velocity of runoff and the amount ofpollutants in storm water"(emphasis supplied) In Trout Unlimited v.Morton 509 F. 2d 1276, 1285 the court found that an"EIS must cover a whole project when the dependency is such that it would be irrational or unwise to undertake the first phase if the second phase is not also undertaken" Of course, no disclosure on the remediation outcome has been included in the FEIS decision because it has yet to take place. One would want to inquire why then is it so necessary or what is the wisdom to proceed with making the decision when the project is so dependent upon the outcome of an unaccomplished superfund process. Appeal Adequacy decision Brad Nicholson Page 2 of 13 The FEIS states: C10. If EPA issues a ROD that is different than what is assumed in the Quendall Terminals EIS, the City reviewing official shall determine whether the applicant shall be required to prepare additional SEPA review, including a possible Supplement to the EIS or Addendum to the EIS,to address any differences between the ROD and the assumptions in the EIS. The FEIS (Final Environmental Impact Statement) attempts to persuade the readers that the narrow speculative condition of merely covering over the entire site without a cleanup and then adding straight pipe water discharges is "adequate" consideration that could possibly be supplemented,and does nothing to observe the above procedural requirements. The CERCLA process is supposed to have public participation, where the remedy could be influenced to include infiltration or other measures. They don't even know for certain"the soil cap" is what will be decided without having had conducted the review. That way is very dangerous, for example in King County v. Boundary Review Board 122 Wn.2d 648, P.2d 1024 the court adopted the fact sensitive approach as opposed to the categorical approach because RCW 43.21C.031 mandates an EIS must be complete when significant adverse impacts on the environment are "prob-able",not when they are "inevitable" The categorical approach leads to results contrary to the purposes of SEPA. Citing Stempel v. Department of Water Resources, 82 Wn.2d 109, 118, 508 P.2d 166 (1973); Loveless v. Yantis,82 Wn.2d 754,765-66,513 P.2d 1023 (1973). The court stated that"Decision-making based on complete disclosure would be thwarted if full environmental review could be evaded simply because no land use changes would occur as a direct result of an immediate governmental action.The court articulated that even a change such as a boundary line change, may begin a process of government action which can "snowball" and acquire virtually unstoppable administrative inertia. Pointing to Rodgers, The Washington Environmental Policy Act, 60 Wash. L. Rev. 33, 54 (1984) (the risk of postponing environmental review (as here) the court then quoted that the result is "a dangerous incrementalism where the obligation to decide is postponed successively while project momentum builds"). Also citing Settle, supra at 103 stating "would induce expectations of environmentally significant development which future decision makers may be reluctant to disappoint") The case, like here, went on to articulate that even if adverse environmental effects are discovered later, the inertia generated by the initial government decisions may carry the project forward regardless. The court stated, "When government decisions may have such snowballing effect, decision makers need to be apprised of the environmental consequences before the project picks up momentum,not after" It was then held by the court that a proposed land use related action is not insulated from full environmental review simply because there isn't a current specific proposal (for example: the ROD and Site wide ready for Re-use measure that is absent here) to develop the land in question or because there are no immediate land use changes which will flow from the proposed action. Instead, an EIS should be prepared where the responsible agency determines that significant adverse environmental impacts are probable following the action. Appeal Adequacy decision Brad Nicholson Page 3 of 13 There are numerous ways to manage runoff that would result in much lower impacts even on a totally impervious site even if the cap were to be the case and those methods could fulfill the consideration. As shown herein, more than one way must be considered for one reason the area is described as "Prime Chinook Salmon Habitat" see EPA Narrative attached) It's very near to where people (including SEGB) have and/or need recreation see EPA Narrative attached). The decision places SEGB and myself in the difficult position of attempting to comment further and/or establish a challenge about our interests and the above in at least two jurisdictions with what logically is second stage first, as shown by the lack details of the EPA's (U.S. Environmental Protection Agency) ROD (Record of Decision), or PP (proposed plan) performed under CERCLA (U.S. Comprehensive Environmental Response and Compensation Liability Act) having yet to be completed. Additionally, there has yet to be an opportunity to comment on the EPA processes identified above. It should be stated in the decision that our State's SEPA statute requires environmental information to be contained in a single environmental document,and requires the document to have had been developed with public participation instead of issuing a "Final" "if/then" statement. It now follows, therefore, that SEGB and Brad Nicholson contend that in determining whether an adequate EIS was prepared we will be guided in large part by the procedural rules" rooted in the above and herein case law. No synthesis of these rules should be attempted other than to point out that all such rules have been designed so as to assure that the EIS serves substantially the two basic purposes. That is,that the EIS is in compliance with SEPA when its form, content, and preparation substantially (1)provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, (which it does not) and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information. (which it does not) In order to find that the FEIS is adequate,you will find that it is necessary to close your eyes to the obvious omissions of significant multiple actions and their impacts going on simultaneously, and forget about trying to encourage considering the public and the required procedural rules, and forego considering alternatives because for reason number one you will not even know what the starting configuration of the site will be when you look at these workings. The cleanup should be first. The decision, for want of more, considers mitigating whatever is "appropriate" utilizing "energy dissipation structures" it is not detailed or thoughtful at all. Right now would be a good time to take the requisite "hard look"necessary for such decisions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 1989). Before taking major actions agencies are required to prepare an Environmental Impact Statement ("EIS"). 42 U.S.C. § 4332(2)(C). An EIS must take a"hard look" at the potential environmental impacts of the proposed action. Robertson, 490 U.S. at 350; New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 713 (10th Cir. 2009). "The EIS must also `rigorously explore and objectively evaluate all reasonable alternatives' to a proposed action in comparative form, so as to provide a `clear basis for choice among the options."' See WildEarth Guardians v. U.S.Forest Serv.,828 F. Supp. 2d 1223, 1236(D.Colo.2011)(quoting 40 C.F.R. § 1502.14). Appeal Adequacy decision Brad Nicholson Page 4 of 13 We at SEGB request that you articulate that the ERC process of analyzing water quality is severely inadequate and that the procedures used cannot muster consistency with WAC 197-11-060 (3) (a.) (iii.) and (b.) (i.)(ii.). or the definition of"Reasonable Alternative" WAC 197-11-796, or "Scope" WAC 197-11-792, while the procedural content WAC 197-11-440 (5) (a.) (b.) c.) (d.) is unincorporated. They are evidently just trying to gain vesting, which should not be allowed when the application is so very completely incomplete. The actual baseline conditions on the application and SEPA's required Environmental Checklist must be blank. The FEIS only considers the following: A10. A permanent stormwater control system shall be installed in accordance with the applicable stormwater regulations. All. Offshore outfall locations for stormwater discharge from the permanent stormwater control system shall be equipped with energy dissipation structures or other devices to prevent erosion of the Lake Shoreline and bottom. B7.A permanent stormwater control system shall be installed consistent with the applicable requirements.The system shall collect and convey stormwater runoff to Lake Washington via a tight-lined system or another system approved by the City's responsible public official. Water quality treatment shall be provided for runoff from pollution-generating surfaces to prevent water quality impacts to the lake and shoreline wetlands. Perhaps further processes by the EPA will contain consideration of reasonable alternatives and exercise of substantive authority, but they haven't taken place yet so that is also speculative and unknown. There is no way to ascertain that EPA's ROD cannot be influenced in such a way that at least some of the site can be made capable of infiltration(which is the contrary to the presumption) We at SEGB want the Examiner to know how to proceed, Environmental review should take place at the earliest possible stage,see Alpine Lakes v.Natural Resources 102 Wn.App. For most people the segmentation makes such a look and intelligent comments too formidable. There is no indication that infiltration or retention is being considered here. But, Whether an environmental impact statement needs to be prepared in a particular instance including reasonable alternatives) (supplied) does not necessarily depend upon the existence of a specific development proposal. "Under RCW 43.21C.031, an environmental impact statement is required whenever a major action by a government agency will have a probable significant adverse environmental impact. Again put another way, "One purpose of the State Environmental Policy Act (chapter 43.21C RCW) is to provide consideration of environmental factors at the earliest possible stage to allow decisions to be based upon complete disclosure of probable environmental consequences. Alpine Lakes. It should be noted that no environmental consequences due to the lack of alternatives have been identified in the document. The DEIS enunciated that the same storm water plan that has been incorporated into the FEIS is"non-significant" (DNS) It is possible to look to King County v. Cent.Puget Sound Bd. 91 Wn. App. That clarifies, stating, "for purposes of RCW 43.21C.030(2)(c)(iii), which requires that an environmental impact statement include a detailed statement regarding the alternatives to the proposed action, Appeal Adequacy decision Brad Nicholson Page 5 of 13 and WAC 197-11-440(5)(b), which defines a "reasonable alternative" as an action that could feasibly attain or approximate a proposal's objectives but at a lower environmental cost or decreased level of environmental degradation, "an alternative need not be legally certain or uncontested in order to qualify as a "reasonable alternative" or to be included in an environmental impact statement.(emphasis supplied)King County v. Cent.Puget Sound Bd. We at SEGB believe the position should be affirmed that if there was a good Builder of a project such as this, He would be a steward of the environment and would be wanting to start hammering away at consideration of all reasonable alternatives, as opposed to stubbornly outlining that if the straight pipes can't go in then no action alternative will be exercised. However that is what is happening and the ERC has reinforced exactly this wrong posture with this decision.Undoubtedly,that is very much the same posture taken by the O'Reilly Tar and Chemical company started many years ago that has created this quagmire by dumping 455,000 gallons of creosote into the ground water. O'Reilly did not think. Like a child, the developer must have his way or he will sit and pout and do nothing, turning Lawyers onto the land rather than have cleanup crews, cooperation, and well thought out quality development. SEGB and Brad Nicholson oppose such processes and ask that they be changed. The average annual precipitation for Renton is 37 inches; 1 acre of impervious surface will generate approximately 1,000,000 gallons of polluted storm water runoff per year, adversely impacting citizens.For 22 acres or 950,000 square feet of impervious surface as a result of the above presumptions, the rate would be 22,000,000 gallons per year, or an average of 60,000 gallons of runoff every single day. To check and verify calculations see Environment Education Guide, Protecting Washington's waters from stormwater pollution Ecology Publication #07-10-058 (attached) The FEIS presumes the entire site (around 22 acres) as impervious with a soil cap of sand or organic-clay. See FEIS. Considering the probable deficiencies in transportation capacity from up to 800 new single family units, the impervious area as a direct result of the presumption is extremely likely to go up. We at SEGB will not be entertained by Proponents that may contend that calculations are not accurate and then identify zero flow control. Using conservative numbers, there would be 1,320,000,000 (1.32 billion) gallons of polluted runoff discharged from Quendall Terminals in the next 60 years.As shown herein, there is an abundant plethora of polluting substances contained in that runoff. What difference or case could be made if say,it is too difficult to determine whether a discharge can be reduced by either 45%or 55 %instead of 0% Pollution in storm water runoff is widely considered to be one of the main sources of the 52 million pounds of harmful pollution that end up in Puget Sound each year. See Q&A Earthjustice, attached. Evidently they realized this, because the FEIS removed the DNS nomenclature but still charges ahead with exactly the same straight pipes discharging from an unknown site configuration. Presumably they are sticking with, but attempting to hide the DNS decision,because nothing has been altered in their approach. In addition to erroneously deciding that the plan need not divulge any of the details of"water quality treatment" its apparatus' and/or facilities that would be used, or make any attempt to divulge the pollutants that would be discharged, the approach used does not include any data about how conserving the wetlands, or using LID for example not cutting down the 450 trees vegetative uptake) on the site (EIS) could be used in conjunction with better processes to Appeal Adequacy decision Brad Nicholson Page 6 of 13 reduce the amount of discharge of pollution and achieve better numbers for the Lake and Puget Sound. The FEIS for want of more states that whatever is "appropriate" (word used in FEIS) will be used. The ERC is admitting that they don't care and have not considered the facts before the decision was arrived at by finding such a statement as whatever is appropriate"to be adequate. See Sisley v.San Juan County 89 Wn. 2d 78 It is necessary to consider the facts and circumstances and SEPA's terse procedural requirements before a decision is made. We can be certain that they don't know even know what they are doing, because they don't even know the site they are talking about. They think a FEIS consists of articulating that they will do whatever is"appropriate"There was not much thought that went into that mitigation measure. One thing they did recognize in the FEIS is the complete lack of comprehensive storm flow control analysis by calling for the installation of massive "energy dissipation structures" to mitigate damage to the lake bottom from the billions of gallons of unrestricted flow off of the site from the proposed three "outfall" straight pipes that would discharge almost every contaminant entering the system. They have proposed that the shoreline be "trenched" to a location "offshore" and then when and where efficient to do so, put the poorly conceived energy dissipation structures"in place. In other jurisdictions, way more conscientious planning work, detailed disclosure, and contemplation has taken place (and reasonable alternatives have been considered and incorporated into their decisions), information is abundant and it is all free for the taking-for example see Chevy in the Hole, Design principles for Stormwater Management on Compacted Contaminated soils in Dense Urban Environments EPA Document 560-F-07-231 Apr. 2008 attached. Many of those ideas are feasible and beneficial for use on this site,would result in decreased environmental impacts and better water quality, WAC 197-11-440(5)(b), and would not effect the eventual approval still allowing the proponent to achieve the objectives of the project. But we would be stuck with a guy that wants to make millions of extra dollars with the straight pipes. The acronym"LID"is referred to for many of the techniques(Low Impact Development) On the high intensity land use Chevy Superfund site described above, the export concentrations of toxic contaminants would have been the highest of any land use, while expensive retrofitting of similar existing development types and low impact development techniques are needed. Also see Conclusion, Control of toxic Chemicals in Puget Sound Ecology Publication No.11-03-010. The Proponents can find any of these exhibits online just like SEGB has.They have evidently refused to do so. Some of our leaders probably dictated that the EIS authors just take the quick and easy way out of trying to do a small amount of work; they reassure them to use straight pipe discharge according to the Developer wishes or he might just sit there. The pipes don't have enough resistance to worry about calculations, i.e. it is so rapid that it does not matter. Infiltration and/or flow control that has been disclosed=zero.No complicated calculation is necessary. Appeal Adequacy decision Brad Nicholson Page 7 of 13 It is precisely the type of significant impact that we have spent millions if not billions of dollars trying to remedy using State resources developing plans,with a developer that perhaps will contend that they are not feasible. see Low Impact Development Technical Guidance Manual for Puget Sound-Puget Sound Action Team One of the important unconsidered reasonable alternatives is simple to design Green Roof systems that can reduce the quantity of discharge from their hot roof surfaces by 50% through evaporation-transpiration, and in combination with the menu of other LID techniques like leaving some trees, making the houses a little smaller, membrane under pervious pavement w/underdrain, or creating water features such as flow-thru-landscaping that recycle or store water into that landscaping, the massive energy could be nearly eliminated-and with no straight pipes. On a life cycle basis they cost no more than straight pipe high impact techniques and have the advantage of reducing energy usage,limiting resource usage by being recyclable. These principles and techniques are commonplace in many other jurisdictions. In this case,the temperature of the discharge and of the buildings would be significantly reduced. They work very well on larger projects. See LID Technical Guidance Manual for Puget Sound Many of our exhibited documents list resources galore for the alternatives. Nothing in the EIS considers dissipating the thermal waste their presumptions will generate, pollutants that become dissolved and into solution in the water like high temperature) see exhibits, (composition or asphalt roof roads stores, restaurants, and 800 dwelling units put over clay and sand?) or reducing the amount of discharge that is known to contribute to damage to the ecosystem in the first place. Business as usual will surely result in un-natural selection of and kill (Take)of endangered or threatened species, and cause threats to human health to people that want to recreate in the water. It has already been proven that Salmon timing is significantly altered by temperature change alone, and results in un-natural selection when the runs spawn either earlier or later, resulting in illegal loss of genetic diversity. See "Take"A Citizens guide to the 4D rule, Thomas Quinn University of Washington,Issue Paper no.5 EPA.Attached. Another writer explains that, many of the toxic chemicals contained in runoff is persistent does not break down easily) and bioaccumulate at harmful levels. He explains that these toxins (PBTs) include; heavy metals, PAHs, phthalates and PCHs discharged from local jurisdictions. PBTs (Persistent Bio-accumulating Toxins) released at any concentration level are certainly harmful to Chinook salmon, and other organisms, because of their persistent and bioaccumulating characteristics and harmful effect. In the Puget Sound region PBTs have been found in mussels, sole, rockfish, Salmon, Chinook Salmon, seals, and Orca whales. See David LaLiberte, Liberte Environmental Associates Wilsonville Oregon. (attached) Other authors stress that Superfund sites are even more susceptible. Citizens will lose more of the expectation of confidence in the quality of our waters. The chemicals that will be in the water from development threaten the genetics of people as well. See summary FS and RI, EPA documents. A decision of no environmental significance because of whatever is "appropriate" can not be made without actual consideration of the facts and circumstances and the procedural and substantive requirements of SEPA. See Sisley v.San,Juan County 89 Wn. 2d 78. SEPA is a Appeal Adequacy decision Brad Nicholson Page 8 of 13 full disclosure and consideration environmental law. Norway Hill Preservation and Protection Association v.King County 87 Wn.2d 267,552 P.2d 674. It is evidently hoped we will overlook the fact that disclosure of pollutants that go into solution with the water as a direct result of the speculative development are not removed by the so called "treatment" and the only appeal left will be of the code decision and no one will be notified when that will take place. There is a 14 day appeal period with no required notice for those other stages. Other alternatives for review could consist of a Federal case. SEGB is not planning on overlooking the quality of our environment or the quality of the adequacy decision. The thoughtful and realistic contemplation SEGB performs recognizes that Orca, Salmon, and many other species are at the brink of extinction, and our water quality is crucial and very important to our way of life, and more effective mitigation alternatives are needing to be carefully looked at. That our wildlife is a part of our lives and heritage.... Our Salmon and quality of water play a vital role for wildlife and people in our City and region. The health of our children and people that recreate with the Lake is at risk. See EPA synopsis. Evidently the contract and presumptive plans were made simultaneously speculating that the 455,000 gallons of toxic PAH, (Polycyclic aromatic Hydrocarbons) BTEX, (Benzene Tolulene Ethylene Xylene) and DNAPL (Dense non Aqueous Phase Liquids) creosote and wood preservative chemicals already existing in the site would be merely covered over with organic clay or sand,expecting them to stay put instead of being removed from the site.There are Di-benzo Furans in the PAH, considered to be one of the dirty dozen. Pentaclorophenol? Arsenic? SEGB expects the EPA process performed under CERCLA will remove the chemicals from the site entirely because of the threat they pose to human and animal health. SEGB has not been given an opportunity to comment on the ROD or PP yet. Techniques that could be used on the site that will still allow the development to proceed and would consider these facts may be implemented.We at SEGB are planning to participate. But when the above happens and reviews are illegally scattered,segmented,and so incomplete and so slow,it probably would be that nobody can even figure out,remember,or pinpoint how all of the toxic compounds and pollution get into our water in the first place-there is no absolute precision, and it becomes much more expensive than it would be if considered in the beginning and with the single review contemplated by SEPA. STANDING Standing is affirmed by the harm that would be caused by the numerous harmful wastes that would be discharged and eventually end up in Lake Washington and Puget Sound, adversely impacting and harming our members and myself, or for that matter the entire City and State's enjoyment and quality of life, present and future generations included, if information is not included on the alternatives and measures put in place to mitigate impacts. We have already suffered harm from the lack of a site configuration because we can't comment based upon true Appeal Adequacy decision Brad Nicholson Page 9 of 13 information or on our interest in such other activities as the availability and enjoyment of Fishing and wildlife. Brad Nicholson and SEGB enjoy high environmental expectations and enjoyment of wildlife and recreation such as boating, swimming, and fishing in and around Lake Washington in this area and this security and these activities would be lost and risk to our health would be added if this decision is not reversed and environmental amenities protected. Brad Nicholson is a member of SEGB. We do recognize that the difficulty of articulating some harms that will be caused by the project are difficult to articulate, because the site is not defined and the results of the Superfund cleanup are incomplete. We must presume the site and water is in its original natural state for purposes of reviewing impacts, degradation,and standing.The proposal or the FEIS has no water quality improvements. We at SEGB recognize that each person has a fundamental and inalienable right to a safe, enjoyable, and healthful environment RCW 43.21C.020 (3) and, each person has a fundamental responsibility to preserve and enhance that right. Without a decision in favor of this appeal, the ability of SEGB to preserve and enhance our environment will be damaged. See also RCW 70.105D.010(1)(2)(4)(5)(6). We at SEGB contend that our concerns place us within the purview of being"arguably within SEPA's purpose"and that we will be adversely impacted and suffer actual harm if something is not done to reverse this decision. Those are the requirements for standing. The clear mandate of SEPA, and the purpose behind the environmental impact statement requirement, is consideration of environmental values based on full information ...... . . Where the effect is significant,SEPA requires an environmental impact statement in order that full information(emphasis supplied)is available before government action is taken,with or without the imposition of conditions. ... By failing to review adequately the effectiveness and enforceability of mitigation measures used to justify a negative determination on a major action,the courts lose an opportunity to enforce the underlying state environmental policy. The ERC did not resolve to undertake to utilize "all practical means consistent with other essential considerations of State policy" to "fulfill the responsibility of each generation as trustee to the environment, nor did they "improve the plans, functions, programs, and resources, so that we may attain the widest range of beneficial uses without degradation, emphasis supplied) or assure "safe and healthful, (emphasis supplied) productive surroundings, preserve natural aspects of our heritage, "enhance the quality of life RCW 43.21C.020(2)(a)(b)(c)(d)(e)(f)(g) The difficulty obviously originates and arises from the differing objectives of different interests and the fundamental lack of coherence in the EIS description of objectives pertaining to water quality. The water quality objectives have been framed way too narrowly and been given so little attention that it has resulted in one alternative emerging that could make the FEIS merely a formality that does not accomplish what an EIS is supposed to accomplish. We at SEGB believe that proponent fundamental beliefs must object to preparation of the statement in the first place. We represent opposing views that have standing and incorporating information like our contentions would carry out SEPA's purpose. The extent of impacts and quality of our Environment depend fundamentally on the clear and Appeal Adequacy decision Brad Nicholson Page 10 of 13 coherent goals and compliance being outlined in the documents because they are what are supposed result in information that is to be used to make future planning and engineering decisions, where decision makers carry out SEPA substantial requirements. Instead of being a local success story the message of toxic runoff could prevail without SEGB. We contend the FEIS should be at the vanguard of effective solutions to curb toxic runoff. Clean water advocates across the Region and the Country will look at our work as stepping stones toward efforts to strengthen clean water policy and launch cost-effective and practical low-impact development projects. The proposal is inconsistent with SEPA because it does not discuss reasonable alternative mitigation such as LID or even consider the successes achieved in other jurisdictions,proving the FEIS is deficient SEPA, see RCW 43.21C.030(c)(i)(ii)(iii) requires that reasonable alternatives be discussed in the EIS. "Reasonable alternative" is defined by SEPA rule, see WAC 197-11-786 Reasonable alternative" means an action that could feasibly attain or approximate a proposal's objectives, but at a lower environmental cost or decreased level of environmental dejuadation. This is exactly what LID and other cases have been engineered to accomplish, that is, to improve and protect water quality by lowering the quantity of runoff and/or amount of pollution entering the environment using LID techniques. The technology that could be incorporated into the document is readily available in any location. Further, "Reasonable alternatives may be those over which an agency with jurisdiction has authority to control impacts, either directly, or indirectly through requirement of mitigation measures. (See WAC 197-11-440(5) and 197-11-660.id) They could still build their project and protect the water at the same time. Discussion of relative scientific parameters of significant environmental concern for this type of proiect is not evident in the adequacy decision. This project is very large and polluted and actual review of cleanup plans has yet to take place. It has been described as one of the largest parcels on the shores of Lake Washington. They visualize up to 800 residential units,30,000 sq ft.of retail commercial development, and 2,171 parking spaces on the Shore of Lake Washington, and three outfalls discharging to the Lake and Puget Sound. Without any alternative mitigation, some more disclosure must take place. Concerns with superfund re-use determination have not been decided and/or remedial actions are unperformed and unreviewed, all with no mitigation of the high pollution concentrations that would be encountered, no mention of the large volume of debris and solids that would be discharged, certain inappropriate discharges that will take place etc., or the microorganisms, toxicants, nutrients, or organic debris, and high heat elevated temperature that will be discharged, See Urban Stormwater Management in the United States, National Academy of Science pp. 180 Table 3.3. attached. Also see, Scientific Investigations Report 20125068, U.S. Department of the Interior U.S. Geological Survey, Contaminant Concentrations in Stormwater Runoff' Synopsis pp.40, Control of toxic Chemicals in Puget Sound Ecology Publication No.11-03-010. The temperature increase from roofs and other pollution is directly linked to"Take" Appeal Adequacy decision Brad Nicholson Page 11 of 13 Most if not all of the local educational material about storm water pollution express the same concerns and indicate this science is widely accepted. See exhibits. Here, the EIS concludes the review is adequate only reviewing"Earth" and does not disclose or discuss or disclose the water pollution environmental concerns. Again the documents erroneously dismiss the concerns; SEPA is a full disclosure and consideration environmental law. Norway Hill Preservation and Protection Association v. King County 87 Wn.2d 267, 552 P.2d 674. Even though the single proposal is inconsistent with Washington's anti-degradation statute RCW 90.54.020 there is no indication that an attempt will be made to obtain the required exception or disclose the facts. Substantial information would be required for a SSDP (Shoreline substantial development permit) that requires no degradation of the shoreline from the baseline or natural condition of the shoreline. The impacts are "significant" There is no way that anyone can state that three untreated straight pipes will not degrade the water and shoreline beaches on the site or nearby. We should be getting some idea of how to comply with all of the State or Federal requirements through information in in the document as opposed to just a philosophy,which is incontrovertibly much less protective of the environment. They presume to be able to violate Laws at will. Our fundamental requirements have not been considered in the document that dictate that "high quality waters" are necessary, that no degradation may occur, and that all known and reasonable treatment methods(AKART)must be utilized according to RCW 90.54.020(3)(b)see Washington Law 5510411.Pollution control Hearings Board. http://www.ecy.wa.gov/programs/wq/stormwater/municipal/LID/S4SJOrderHighlights.pdf The FEIS is premature and piecemeal because there has been no "Site Wide Ready for Anticipated Re-Use" or PP or ROD, operating to foreclose the disclosure and consideration process and divide the woiect into illegal segments Among other things, in addition to the facts discussed above, the FEIS discloses that SMA Shoreline Management Act) shoreline permits, master planning and site planning, and subdivision of land into 7 parcels to create the 800 residential dwelling units, retail and restaurant components, 2,171 parking stalls will be required.The ROD and PP are incomplete processes.In Merkel v.Port of Brownsville 8 Wn.App. 844, 509 P.2d 390(1973)The size of the project and type of uses proposed were also significant. Piecemeal development results in damage to the natural environment.Merkel. We contend that the EIS is fatally inadequate because it does not discuss the environmental relation to the Second Phase (which should be the first phase). The case here is that the cleanup should be done fust before anything is built. We rely upon cases which hold that a series of interrelated steps constituting an integrated plan must be covered in a single impact statement. For example the Trout case was found to be inapposite to the rule, but that is not the situation here in the instant case. The distinction between these situations in which it has been held that the EIS must cover subsequent phases and that before us is that here the First Phase is not substantially independent of the Second while in those in which the EIS must extend beyond the current project, the project is dependent on subsequent phases. The Appeal Adequacy decision Brad Nicholson Page 12 of 13 September 24,2015 dependency here is that it is such that it would be absolutely irrational to work on this place without the ROD or PP,or to undertake the first phase if the subsequent ROD phases were not also undertaken. They have it backwards. These arguments are confusing. We at SEGB take note that the error is zoning and FEIS is the first phase with the ROD being the second.That is precisely where the problem lies. The EPA must recognize that the cleanup has occurred regardless of whether the project will be built and not vise versa. What's worse, is that the site has already been piecemealed, as the City zoned the SMA urban designation for the land based on whim,(they knew of all these problems but acted anyway to build administrative inertia) not even knowing the final condition of the land or its usability, and not providing opportunity for the public to comment on environmental consequences prior to the issuance of the ROD, or caring enough to have measures in place to protect against storm water pollution flowing off of the Superfund Site with straight pipes in the first place. They charge ahead and argue things as they come up, with the "Final" paradigm that could make appropriate review and consideration untimely. It can not be stated that no piecemealing will take place because it already has. The ERC determines that the EIS is adequate and Final" without ever having had the procedural and systemic assistance of a cleaned up baseline condition" or put another way the actual site configuration/ and/or consideration of special LID features that were originally requested in our comment letter(attached). They have zoned the site for buildings that some say are bigger than the 737 assembly plant, and they don't even know the conditions of the Land before they begin considering. See conceptual photo exhibit. It is questionable whether any of the zoning was even legal. It was done to benefit the few rather than the City. Citizens have not commented on the ROD.One or all of the decisions are subject to a performance measure for re-use. See Guidance for Documenting and Reporting the Superfund Sitewide Ready-for-Re-use Performance Measure, OSWER 9365.0-36. We at SEGB contend that the ROD measures need to be included in the document for the site and reviewed. Obviously it has not. The Council on Environmental Quality requires agencies to consider connected actions within a single document 40 CFR § 1508.25. Actions are connected, when (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.40 CFR§ 1508.25(a.)(1.) In Trout Unlimited v.Morton 509 F. 2d 1276, 1285 the court found that an"EIS must cover a whole proiect when the dependency is such that it would be irrational or unwise to undertake the first phase if the second phase is not also undertaken" (emphasis suppled) Do they need to have an ROD......yes they do. Would it be unwise to just build and forget about the EPA and the ROD?Yes it would.The decision needs to be reversed. The above case is dispositive. The decision is inconsistent with procedural rules that are clear that the information must be in the EIS(single document)prior to decisions or issuing permits where the project, (i) Cannot or will not proceed unless the other proposals (or parts of proposals) are implemented simultaneously with them; or (ii) Are interdependent parts of a larger proposal and depend on the larger proposal as their justification or for their implementation. See WAC 197-11-060(3)(b) Appeal Adequacy decision Brad Nicholson Page 13 of 13 September 24,2015 The requirement can only be satisfied by incorporating the ROD and the Site wide ready for reuse decision into the FEIS. Putting the EIS on hold and allowing another comment period after the ROD seems to be the only rational way to proceed. Citizens want to be confident that the CERCLA process will be carried out to its conclusion; right now only a feasibility study and investigation has taken place.The question posited is only whether it would be unwise not to undertake the CERCLA process. Thus the CERCLA ROD and PP information must be included in the FEIS. An invalid decision is also indicated by the failure to follow other rules of procedure. See WAC 197-11-080(3)(a)(b) No worst case analysis has been performed. This is precisely the type of information that is required by SEGB and necessary for protection of environmental quality that we value. It is required by SEPA. We advance our challenge to you noting the issues will turn on whether SEPA's procedures are followed. "The whole range of process requirements for EIS preparation and use are potential grounds for legal challenge" See R. Settle, The Washington State Environmental Policy Act:A Legal and Policy Analysis § 14(a), at 149.This challenge should be evaluated under the"Rule of Reason"R. Settle,at 154. Further citation may follow. An Exhibit List is attached. Thankyou in advance for your thoughtful consideration, Brad Nicholson,and SEGB,Brad Nicholson President Appeal Adequacy decision Brad Nicholson EXHIBITS 1. Water quality Page Department of ecology 2. FEIS Notice 3. Site description EPA 4. Wiki encyclopedia"Creosote" 5. conceptual photo 6. Focus on Puget Sound May 2011 7. Resolution no. 3761 8. Science of Stormwater King County 9. LID manual section 6.4 vegetated roofs 10. Map-Distribution of Chinook Salmon 11. Proponent web page 12. Publication No. 11-03-010 13. Roofing material abstract ASCE Sept/Oct 2008 14. Radke memorandum 15. 17 September 2012 agenda bill 16. addendum notice 17. Summary WRIA 8 strategy 18. Notice of significance 19. EPA issue paper no. 5 20. WL 5510411 (2008) 21. Temperature abstract Thomas Quinn U of W 22. Relative sources of concern pp.180 USM in the United States 23. EPA-841-F-03-003 24. EPA-560-F-07-231 25. EPA-560-F-07-232 26. USGS Scientific Investigations report 2012-5068 27. EPA OSWER 9365.0-36 28. SEGB comment letter 29. Sightline abstract March 2011 30. EPA OSWER 9365.0-30 31. Executive summary RI report 32. EPA 560-F-06-244 33. Ecology publication#07-10-058 34. Renton letter dated Feb 3, 2012 35. EPA letter 13 Jan. 2011 36. EIS addendum 37. EPA executive summary 38. Blumen contract