HEX 20-004 Corliss Plant 2 (Part 2)This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 1 of 53
Phil Olbrechts:
All right.
Female :
And I need [inaudible 00:00:03].
Phil Olbrechts:
Back on the record. It's 1:00 PM, February of 2021. I'm Phil Olbrechts, hearing examiner. We are still in
the Corliss Plant to appeal notice of violation X-20-004. The city is still presenting its side of the case, and
they're ready to present another witness, I believe, Mr. [Lal 00:00:23]?
Mr. Lell:
Thank you, Mr. Examiner. The city's next witness will be Theresa Thurlow.
Phil Olbrechts:
Okay. Miss Thurlow, are you ther e? All right.
Theresa Thurlow :
I am.
Phil Olbrechts:
And that is T-H-U-R-L-O-W?
Theresa Thurlow :
Yes. T-H-U-R-L-O-W.
Phil Olbrechts:
Okay, let me swear you in. Do you swear or affirm to tell the truth, nothing but the truth in this
proceeding?
Theresa Thurlow :
Yes.
Phil Olbrechts:
Okay, great. All right, Mr. [Lal 00:00:48], go ahead.
Mr. Lell:
Thank you. Miss Thurlow, what's your official title with the City of Federal Way?
Theresa Thurlow :
Surface water division manager.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 2 of 53
How long have you held that position?
Theresa Thurlow :
Just shy of six years.
Mr. Lell:
How long have you been employed by the city?
Theresa Thurlow :
Just shy of six years.
Mr. Lell:
Could you please describe your job duties for the city?
Theresa Thurlow :
I have overall responsibility for the surface water management program, and that is the NPDES permit
compliance, asset management, including operation and maintenance, flood reduction and prevention,
water quality protection and improvement, and habitat conservation.
Mr. Lell:
Is Miss Myhre one of your direct reports?
Theresa Thurlow :
Yes.
Mr. Lell:
Do you have a personal knowledge of the Corliss enforcement matter that's an issue in this proceeding?
Theresa Thurlow :
Yes.
Mr. Lell:
And do you have personal familiarity with the documents that have been entered into the record for this
proceeding?
Theresa Thurlow :
Yes.
Mr. Lell:
Did you listen to the testimony of Miss Myhre and Mister Elliott?
Theresa Thurlow :
Yes.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 3 of 53
Mr. Lell:
Is there any aspect of the testimony of those two individuals with which you disagree?
Theresa Thurlow:
No.
Mr. Lell:
Thank you. Could you, please, provide a brief overview of the enforcement framework for the city of
stormwater regulations, and feel free to just chime in if you think it would be more expedient to
bootstrap off of what Miss Myhre testified to.
Theresa Thurlow:
Sure. Under our NPDES permit, we are required to have enforcement code as part of our, keeping the
water clean, only rain down the drain. And so, we have this IDDE Investigation and Enforcement
Program. And under that program, we have escalating enforcement. The first would be somebody
reports violation. We go out and investigate. We say, yes, there's a water quality violation. Who's the
responsible party? We identify the responsible party. We send them a water quality violation warning
letter. And this letter says, basically, "Hey, you're polluting the water. This is what happened. And this is
what you need to do to correct it." And then, they have, I think, it's 15 days, off the top of my head, it
seems like it's 15 days, to correct that. If they don't correct it within that timeframe, then, our
enforcement action escalates, and it becomes a water quality violation in order to correct.
Theresa Thurlow:
And at that time, they have a certain amount of time to correct the water quality violations. And if they
don't, we will start assessing fines on them for not correcting this issue. So, our approach as a city is
education. That's why our first one is a warning letter saying, "Hey, th is happened. We need you to
correct it," and then, as I said, escalating from there.
Mr. Lell:
Okay. Thank you. Is there a difference in your understanding of the city's enforcement structure
between NOVs and orders on one hand, versus letters on the other hand?
Theresa Thurlow:
Yes. Our closeout letter, for instance, isn't required by any of our code. It came about because we were
all relatively new to the city. Leah's predecessor, myself, Kevin, and we would look at historic notice of
violations for water quality and the question of whether it was taken care of, and the case closed out
was left unanswered. We had no documents, nothing to tell us what had been done on this particular
site. So, we decided that we needed a mechanism for those people who come after us to understand
what was done on the site, and that we closed that particular water quality violation. And I also thought
it would be a courtesy to let the responsible party know that we had closed out that particular case.
Mr. Lell:
Just so I'm clear, Miss Thurlow, if I understood your testimony correctly, the closeout letter template is
more for the city's own reference, is that an accurate statement, or characterization...
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 4 of 53
Theresa Thurlow:
Yes.
Mr. Lell:
... of your testimony?
Theresa Thurlow:
Yes.
Mr. Lell:
Okay. Thank you. Do you recall Miss Myhre's testimony concerning the water quality enforcement
history of the Corliss site?
Theresa Thurlow:
Yes.
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
I would just add, she started at 2018, but actually, my recollection is we began noticing enough track-out
to assess a water quality violation early in 2016, and that's a year after I came on board. So, it didn't all
start for track-out in 2018. It went further back.
Mr. Lell:
So, there's a history of stormwater violations on the Corliss site dating back, at least, to 2016, is that
correct?
Theresa Thurlow:
Yes.
Mr. Lell:
Thank you. And do you recall Miss Myhre's testimony regarding the circumstances leading up to the
city's issuance of the January 6th, 2020 NOV?
Theresa Thurlow:
Yes.
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
Yes.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 5 of 53
Mr. Lell:
Is there any aspect of that testimony that you disagree with?
Theresa Thurlow:
No.
Mr. Lell:
Anything that you would like to add or supplement Miss Myhre's comments with?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Now, turning to the March 3rd, 2020 closeout letter, could you, please, summarize the city's
investigative and/or inspection efforts that led up to the sending of that document?
Theresa Thurlow:
I'm sorry, could you restate the question? I'm not sure what you're asking me.
Mr. Lell:
Certainly. Turning your attention to the March 3rd, 2020 closeout letter...
Theresa Thurlow:
Okay.
Mr. Lell:
... could you please describe, in your own words, whatever investigative and/or inspection efforts that
the city may have undertaken leading up to the appending and preparation of that letter?
Theresa Thurlow:
Sure. I'm not sure exactly off the top of my head where we got the report that there had been track-out,
but we received a report there was track-out. Kevin went out to investigate the... Yes, there was track -
out. Our procedure... We have a flowchart, actually, that says do X, Y, Z at each point. Our procedure at
that point is to take pictures, which he did, and identify responsible party, fairly obvious, and then, come
back to the office and pull up our template and fill the letter out. Inform Leah and myself on what was
happening. Open up a case in [Vieworks 00:08:15] if one hadn't already been opened. And then, once
Leah confirmed that the circumstances in the letter was accurate, she'd sign it and we would send it. Or
we did send it, actually, I should say.
Mr. Lell:
Thank you. And...
Theresa Thurlow:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 6 of 53
And... Oh...
Mr. Lell:
... were you involved at all in the drafting of that document?
Theresa Thurlow:
Only in reviewing the letter. I did know that we had frequent track-out problems, and I'm pretty sure I
would have asked, and I'm pretty sure I did ask, at this point, if she had notified Ecolo gy, because we
were trying to get Ecology to participate, and also, help us with this continual problem.
Mr. Lell:
Okay. Following the issuance of that document, what were the next steps? What happened, in your
recollection?
Theresa Thurlow:
As far as I remember, Kevin came to me and said, "Hey, they paved the site. They cleaned out the catch
basins, and they swept the street." I would've said that's great, and closed out. And then, I would have
asked him if he had the closeout letter ready.
Mr. Lell:
Okay. Did you participate in the preparation of the March 3rd closeout letter itself?
Theresa Thurlow:
I would have reviewed it.
Mr. Lell:
Okay. Do you agree with Miss Myhre's summary or characterization of how that March 3rd, 2020 letter
was issued, was sent?
Theresa Thurlow:
Yes, that's correct. We only send by certified mail the actual notice of violation because we have to
make sure that the responsible party is aware of the violation.
Mr. Lell:
Okay. Did the January 6th 2020 NOV direct Corliss to install pavement in order to correct the violation
on its property?
Theresa Thurlow:
No.
Mr. Lell:
Okay. To your knowledge, did any other written or verbal communication from the city ever direct
Corliss to install pavement?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 7 of 53
Theresa Thurlow:
No.
Mr. Lell:
Did the city's NOV ever direct Corliss to install, or otherwise, implement any particular specific measures
in order to correct the violation?
Theresa Thurlow:
No particular measures. No.
Mr. Lell:
To your knowledge, did any other written or verbal communi cations from the city ever direct Corliss to
install, or otherwise, implement any specific measures in order to correct the violation?
Theresa Thurlow:
No. We're very careful not to direct the corrective BMP.
Mr. Lell:
Okay. And can I ask why that is? Why is the city so careful not to direct the particular BMP?
Theresa Thurlow:
That makes us liable for the results of the BMP. And if it doesn't work, then, we would be on the hook
for, basically, probably the next measures. It's also, we have no idea what their resources are. So
obviously, we would not want to tell them do this, and it's beyond their resources. And they, as a
property owner, are basically, in the end, responsible for everything that happens on their property.
Mr. Lell:
Okay. Thank you. And is the approach taken in the January 6th, 2020 NOV with this non -specific
directive not telling the land owner what particular BMPs to select, is that consistent with the city's
enforcement approach generally?
Theresa Thurlow:
Yes. We always approach our original notice of violations as an educational opportunity, and we include
these pollution prevention measures that are publications from King County on, these are some BMPs
that have been shown to work, and they're included for your reference. In fact, I thi nk we say that in the
letter, these are included for your reference and convenience.
Mr. Lell:
Thank you. Do you recall the testimony by Mr. Davidson to the effect that Corliss installed the pavement
in 2020 in response to the city's January 6th, 2020 NOV?
Theresa Thurlow:
Yes.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 8 of 53
Mr. Lell:
Do you agree with that testimony?
Theresa Thurlow:
No.
Mr. Lell:
Why not?
Theresa Thurlow:
It seemed to me that... My recollection is that paving wasn't response to Ecology's notice of violation.
They had notified us a few years before that, at some point in the future, they were looking at paving as
a measure, a long-term BMP. That's the difference between a preventative measure, so this doesn't
ever happen again, and a reactive measure, oops, we did this track -out and now, we have to fix it.
Mr. Lell:
Okay. Did the city's January 6th, 2020 NOV inform Corliss that Corliss could avoid city permitting
requirements and implementing its selected corrective measures?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Did the city's January 6th, 2020 NOV address the issue of permitting at all?
Theresa Thurlow:
No.
Mr. Lell:
Did the city's March 3rd, 2020 closeout letter inform Corliss that Corliss could avoid city permitting
requirements?
Theresa Thurlow:
No.
Mr. Lell:
Did the city's March 3rd, 2020 closeout letter address the issue of permitting at all?
Theresa Thurlow:
No.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 9 of 53
To your knowledge, did any other written or verbal communication from the city ever inform Corliss that
Corliss could avoid city permitting requirements in implemen ting its selected corrective measures?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Do you recall, during Miss Myhre's testimony, the question... I think it was a hypothetical question
posed by appellant counsel, Mr. [Lynn 00:14:36], regarding a theoretical inquiry about filling a wetland
and what the city would do, and faced with an inquiry to that effect?
Theresa Thurlow:
Yes.
Mr. Lell:
Okay. Do you recall Miss Myhre's response to that?
Theresa Thurlow:
She did say that if she was informed that somebody was filling in a wetland, that she would let
Development Services and Code Compliance know.
Mr. Lell:
What would your response to Mr. Lynn's question be?
Theresa Thurlow:
My response would have been, yes, I would notify Development Services and Planning and Code
Compliance about a wetland violation if somebody informed me that they were going to fill in the
wetland. The same as if I was informed that somebody was going to install a permanent infrastructure
on their property without a permit, I would notify Development Services and Permitting that this person
was planning on doing that.
Mr. Lell:
Did you know, at the time, that the March 3rd, 2020 closeout letter was prepared and sent, that Corliss
had not obtained permits for the paving that it had recently installed on its property?
Theresa Thurlow:
No. I was actually astonished when I heard that.
Mr. Lell:
When did you first become aware of that Corliss did not obtain permits?
Theresa Thurlow:
It was in the fall of 2020 when Development Services asked me if we had directed them to put in
concrete, or what our water quality procedures were.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 10 of 53
Mr. Lell:
Okay. Is Miss Myhre the only staff member with authority to issue NOVs and to prepare a closeout?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Who else at the City, to your knowledge, is authorized to issue NOVs and to send closeout letters?
Theresa Thurlow:
Code Compliance can issue NOVs, Public Works. So, this is department level. So divisions within
Planning, with code compliance can issue in NOVs, divisions within Public Works, SWM Development
Services. I'm not sure about solid waste, but there are other departments that do issue NOVs.
Mr. Lell:
Would you have the authority to issue an NOV?
Theresa Thurlow:
Water quality NOV, yes.
Mr. Lell:
Thank you. And then, finally, did you hear Miss Myhre's testimony concerning the interpretation of
FWRC 1-15-060...
Theresa Thurlow:
Yes.
Mr. Lell:
... section one?
Theresa Thurlow:
Yes.
Mr. Lell:
And do you agree with that testimony?
Theresa Thurlow:
Yes.
Mr. Lell:
Specifically, the references in that code section 2, in the first sentence too, an order to cease activity or
notice and order. Are you familiar with that reference, or those references?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 11 of 53
Theresa Thurlow:
Yes. I'm familiar with them.
Mr. Lell:
Is the city's March 3rd, 2020 closeout letter an order to cease activity?
Theresa Thurlow:
No.
Mr. Lell:
Is the city's March 3rd, 2020 closeout letter a notice and order?
Theresa Thurlow:
No.
Mr. Lell:
Okay. And with respect to the third sentence of FWRC 1-15060 sub one, the provision that reads, "The
city may also request a hearing before the hearing examiner to assess costs, modify previous orders, or
to enter other orders as needed." Are you familiar with that provision?
Theresa Thurlow :
I'm familiar with it, yes.
Mr. Lell:
Okay. Do you think that that provision applies in relation to the city's March 3rd, 2020 closeout letter?
Theresa Thurlow :
No.
Mr. Lell:
Why not?
Theresa Thurlow:
First of all, it's an information letter. There is no code reference. There is no action required, so there's
no order to correct. There's no notice of violation. So, none of that applies.
Mr. Lell:
Okay. So, the reference there on the third sentence of FWRC 1 -15060 sub 1, to, the city's ability to
request a hearing in order to "assess costs", was there a need in your view to assess costs against
Corliss?
Theresa Thurlow:
No.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 12 of 53
Mr. Lell:
Was there a need to modify a previous order in relation to Corliss?
Theresa Thurlow:
No.
Mr. Lell:
Okay. Was there a need to enter other orders?
Theresa Thurlow:
No. In fact, we didn't even enter into an order to correct. They basically fixed their water quality
violation before we got to the level of order to correct.
Mr. Lell:
Great. Thank you very much. No further questions.
Phil Olbrechts:
Okay. Mr. Lynn.
Mr. Lynn:
Good afternoon. Let's go back to what you knew about paving, and you were very clear that the city
never advised Corliss to pave. You were copied on the emails exhibits one and two where the appl icant
advised of its plan to pave the property back in 2018, correct?
Theresa Thurlow :
Yes.
Mr. Lynn:
Okay. So, you knew, at that time, that that was a plan that Corliss had?
Theresa Thurlow:
Not a plan. I knew it was an intention.
Mr. Lynn:
Well, let me read what it says here. This is Miss Myhre's email, part of exhibit one. It says, "We would
also appreciate any updates you have on the proposed pavement for your main exit area, and we'll keep
you apprised of any issues we note as well." Other than the di stinction between plan and proposal,
doesn't that pretty clearly indicate their intention to pave the property?
Theresa Thurlow:
Intention, yes.
Mr. Lynn:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 13 of 53
Okay. And similarly, you received a copy of the January NOV which attached a series of documents,
including a BMP that suggested paving, correct?
Theresa Thurlow:
One of the supplemental BMPs listed in the pollution prevention publications by King County is paving,
yeah.
Mr. Lynn:
And you received a copy of a letter from the city at the conclusion of the process acknowledging CRS or
Corliss's pavement of the property, and the fact that that was considered to resolve the notice of
violation, correct?
Theresa Thurlow:
No. I recall that we sent out a closeout letter saying the water quality violation had been closed out.
Mr. Lynn:
So, wasn't that the violation we were talking about, the viola-
Theresa Thurlow:
Well, the water quality violation was track-out.
Mr. Lynn:
Okay. And wasn't that resolved by paving the property?
Theresa Thurlow:
That was one of the measures they took to resolve the-
Mr. Lynn:
But far and away, the most significant though, correct?
Theresa Thurlow:
Yes.
Mr. Lynn:
Sorry?
Theresa Thurlow:
Yes.
Mr. Lynn:
Okay. Thank you. Let's talk about the form of this order. Mr. Lal has asked several witnesses now
questions about these two different types of orders the city can issue. One being a order to cease, and
the other one being a notice of violation and order to correct?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 14 of 53
Theresa Thurlow:
Yes.
Mr. Lynn:
Now, apparently, this letter falls... the letter that was issued on January 6th, 2020 is something else
besides one of those two?
Theresa Thurlow:
That's correct. It's our first effort in notifying a property owner that they have committed a water quality
violation, and we provide them-
Mr. Lynn:
And it notifies them... Oh, sorry. I didn't mean to interrupt.
Theresa Thurlow:
And we provide them with education on how to correct that.
Mr. Lynn:
It's a little more than an educational piece though. Doesn't it notify them that they're in violation of th e
law?
Theresa Thurlow:
It notifies them that they are in violation of the code, and we may take steps if they don't correct it.
Mr. Lynn:
Does it advise them specifically what steps they are to take, immediately clean up this, immediately
clean up that, and please, implement these BMPs. I mean, that directs, to some extent, the actions
they're supposed to take, does it not? And order them to do that?
Theresa Thurlow:
The cleanup of the catch basins is a mitigation measure. So, basically, they are polluting the water at
that point...
Mr. Lynn:
Right.
Theresa Thurlow:
... and they need to clean that out. The only physical...
Mr. Lynn:
And they're ordered-
Theresa Thurlow:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 15 of 53
... way to clean it out is to vector it out.
Mr. Lynn:
Aren't they ordered to do that in the notice?
Theresa Thurlow:
Yes, they are told to do that.
Mr. Lynn:
Aren't they advised of what the consequence is if they don't do that, specifically potential criminal and
civil sanctions and monetary penalties, as well as the cost of cleanup?
Theresa Thurlow:
I-
Mr. Lynn:
This is more than just an educational piece. Isn't it? Isn't it a notice, an order to correct with a
statement...
Theresa Thurlow:
No.
Mr. Lynn:
.... as to what the consequences are. Don't shake your head before you've heard the ques tion, please.
Theresa Thurlow:
Yes, that's true.
Mr. Lynn:
Aren't they advised of a violation, notified of the consequences, ordered to take corrective actions and
then, advised what the consequences will be if those matters or these actions are not taken, doesn't it
do all of those things?
Theresa Thurlow:
Could you say that again?
Mr. Lynn:
Doesn't the letter advise them of a violation, tell them what they must do to correct the violation and
advise them of the consequences if they don't, which could include criminal and civil penalties?
Theresa Thurlow:
Yes.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 16 of 53
Mr. Lynn:
Okay. I think I want to talk about the... No, I better come back to that. You indicated in response to a
question by Mr. Lal, that you disagreed with Mr. Davidson's testimony in which he said Corliss paved the
property in response to the January NOV. And as I understood that, you said that the reason you
disagreed is that Ecology had also gotten a promise of the same remedy. Correct?
Theresa Thurlow:
Yes.
Mr. Lynn:
So, you're saying they weren't responding to the city, they were responding to-
PART 1 OF 4 ENDS [00:26:04]
Mr. Lynn:
So you're saying they weren't responding to the city they were responding to ecology.
Theresa Thurlow:
No.
Mr. Lynn:
That's not what you said? Well, maybe you could that.
Theresa Thurlow:
I said they were responding to ecology, not to both of us.
Mr. Lynn:
Okay. Well, in fact, ecology's demand had been made two years before and resolved, was it not?
Theresa Thurlow:
I think if you look at the timeline, there were two instances where ecology was involved. Can we pull up
the timeline for the water quality violations?
Mr. Olbrechts:
Which city exhibit is that, Mr. [Lell 00:26:43], do you know?
Theresa Thurlow:
Ah, here we go. 2017, ecology did an inspection. They issued the water quality violation. Then... Could
you scroll down please?
Theresa Thurlow:
Let's see. So then in response to that in 2018, they said they were going to sweep more frequently and
implement BMPs. And then in '18 they did issue a notice of violation again and in '18, looks like ecology
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 17 of 53
closed it out. And can you scroll down again? Can you scroll down again please? It was closed out...
Okay, stop please. Okay. So it looks like you were correct. Their proposal for paving was in response to
the 2018 ecology letter.
Mr. Lynn:
My question is, if the ecology complaint was closed out in 2018, you issue a notice of violation on the
6th of January, Mr. Davidson reports to you on the 20th of January, that the paving was done to resolve
your complaint. And then you issue a closeout letter a few weeks or months later telling him that the
paving was part of the solution. Isn't it fair to say under those circumstances that the paving was done to
address the city's water quality complaint?
Theresa Thurlow:
Yes.
Mr. Lynn:
You said that you were astonished to find out that [Coreless 00:29:32] had not obtained permits for the
paving when you found out in the fall of 2020. But you knew that the site wasn't paved on January 6th,
2020, and you knew it was paved on January 20th, 2020, within 14 days. Wouldn't it be impossible to
obtain permits from the city for anything in 14 days?
Theresa Thurlow:
I don't know.
Mr. Lynn:
Wouldn't it be your experience? I mean, you know something about permitting, having worked at the
city for six years. Wouldn't it have been your experience that any permitting in the city would take more
than 14 days?
Theresa Thurlow:
I don't know. Honestly, it's not my area of expertise. I don't deal with land use permits at all.
Mr. Olbrechts:
Mr. Lell, sorry. Mr. Lell had an objection. Let's hear that first.
Mr. Lell:
I'm sorry, very briefly. I, as a general rule, don't object much in these proceedings because the rules of
evidence don't strictly apply, but this is a question that's been asked and answere d repeatedly, and I
would just object on that basis.
Mr. Olbrechts:
Okay. Mr. [Lynn 00:36:20], are done with that line of questioning?
Mr. Lynn:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 18 of 53
I am, but I think it's the first time I've asked the question about how long it takes to get a permit in the
city. So I don't know how it could have been answered if it wasn't answered by this witness.
Mr. Olbrechts:
Okay. All right. Let's move on.
Mr. Lynn:
Finally, you said that you agreed with the testimony of Ms. [Myrie 00:31:13] and Mr. Elliot. One of the
things they both testified was that one of the purposes of the city closeout letter, wasn't just to allow
the city to put something at the end of its file, but also to advise the applicant that the matter was
wrapped up and they could, in my words, sleep at night. Is that not also one of the purposes of the
closeout letter?
Theresa Thurlow:
No. The purpose of the closeout letter is for our files. I just thought it was polite and a courtesy to send
it to the property owner, to let them know that we were closing it out.
Mr. Lynn:
Did you hear the testimony earlier that prior to that time, property owners would call up the city and
ask about the status, and this was a way of putting them at ease and stopping the calls to the city.
Theresa Thurlow:
It did provide information to whoever had the NOV that the water quality case had been closed. It did
provide that information.
Mr. Lynn:
That's all. Thank you.
Mr. Olbrechts:
Okay, Mr. Lell, any redirect?
Mr. Lell:
Yes, very briefly. Ms. [Turlough 00:32:25], can I ask you to turn your attention to the list of BMPs that
are appended to the city's March 3rd 2020 closeout letter?
Theresa Thurlow:
Can we pull those up please? I'm not sure which exhibit they are.
Mr. Olbrechts:
Okay. I'll get that up.
Theresa Thurlow:
Attachment 4-I.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 19 of 53
Mr. Olbrechts:
Okay. Give me a second here. Oh, I'm disabled from screen-sharing right now.
Theresa Thurlow:
Oops.
Mr. Lell:
I can ask the question without reference to it.
Theresa Thurlow:
Okay.
Mr. Olbrechts:
Okay.
Mr. Lell:
That's fine. If we need you we can find an alternative means.
Theresa Thurlow:
I can also pull it up if I need to.
Mr. Lell:
Do you recall Ms. Turlough that the March 3rd 2020 closeout letter had, as an attachment, a list of best
management practices?
Theresa Thurlow:
Oh, the pollution prevention BMPs, yes.
Mr. Lell:
Yes. And, can you please describe the origin of that document, that attachment, that was appended to
the city's March 3rd close-out letter.
Theresa Thurlow:
Yeah. We provide technical assistance and we provide information and reference, and the BMP sheets
are publications put out by King County stormwater division. And it's exactly what it says. It's pollution
prevention, best management practices. And these are the kinds of things that you can do to prevent an
occurrence or to mitigate an occurrence. And we attach it as reference and information for them, so
they don't have to go looking for it.
Mr. Lell:
And to your understanding, Ms. Turlough, are these BMP sheets themselves part of the adopted King
County Stormwater Design Manual?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 20 of 53
Theresa Thurlow:
No. These particular sheets are publications that are provided separate. The King County Stormwater
Design Manual actually has guidelines on how to design your BMPs. How many catch basins, how big
your pond, if you're going to have this type of business, what do you do for water quality measures or
water quantity measures?
Mr. Lell:
Would you characterize them as exemplary or example-oriented in nature or would you characterize
them as directive?
Theresa Thurlow:
Oh, they're examples. This is not a comprehensive list of what could be done.
Mr. Lell:
Turning back to the reference in, I believe it was the appellant's January 20, 2020 letter to Ms. Myrie
from Mr. Davidson. The reference in there to the paving of the entrance to the Coreless site. Do you
recall that reference and questioning concerning that?
Theresa Thurlow:
Yes.
Mr. Lell:
Is there a difference in your understanding between paving an entrance of the Corel ess site, as opposed
to what the extent of paving actually was by Coreless in early 2020?
Theresa Thurlow:
Yes. If you tell me you're going to pave an entrance, I would expect it to be concrete at the entrance. I
would not expect it to go around the boundary of the property.
Mr. Lell:
Thank you. And then finally, do you recall your questioning on cross examination from Mr. Lynn in
regards to Coreless's stated intent to pave the property in response to the DOE notice that was sent
previously? Do you recall that?
Theresa Thurlow:
Yes.
Mr. Lell:
And revisiting your original testimony and Ms. Myrie's testimony regarding whether and to what extent
you believe that Coreless installed the paving in early 2020 in response to DOE's directive, as opposed to
the cities. Do you recall that?
Theresa Thurlow:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 21 of 53
I thought it was in response to DOE's notice of violation, because that's the first time we heard about
paving.
Mr. Lell:
Okay. And do you still believe that?
Theresa Thurlow:
I believe that they put it in as the long-term measure that would meet their permit requirements for
ecology and get us off their back.
Mr. Lell:
Thank you. No further questions.
Mr. Olbrechts:
Okay. Thank you, Ms. Turlough. Appreciate your testimony. Mr. Lell, any other witnesses?
Mr. Lell:
Yes. The next witness Mr. Examiner, is Kevin Du.
Mr. Olbrechts:
Okay. Mr. Du, go ahead and unmute yourself there and a need to swear you in. Do you swear or affirm
to tell the truth, nothing but the truth, in this proceeding?
Kevin Du:
Yes, I do.
Mr. Olbrechts:
And your last name is spelled D-U, is that correct?
Kevin Du:
Correct.
Mr. Olbrechts:
Okay. All right Mr Lell, go ahead.
Mr. Lell:
Thank you, Mr. Du, could you please state your official job title for the city?
Kevin Du:
I'm the water quality specialist for the city.
Mr. Lell:
And how long have you held that position?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 22 of 53
Kevin Du:
Just a little bit over two years.
Mr. Lell:
How long have you been employed at the City of Federal Way?
Kevin Du:
I started at the end of 2018 as an intern and I became water quality specialist beginning of 2020.
Mr. Lell:
And what are your job duties.
Kevin Du:
I help do the water quality program, the IDE part of the program that looks at discharge detection
elimination. I also did water quality monitoring at various sites throughout the city for analysis and
assessment. And then I also help out with the education outreach part of our permit.
Mr. Lell:
What is the nature and extent of your involvement with the Coreless matter?
Kevin Du:
I was the one who responded to the complaint. I did the inspection, I drafted the letters and, yeah.
Mr. Lell:
Thank you. And do you have personal knowledge regarding the Coreless matter?
Kevin Du:
Yes.
Mr. Lell:
And are you familiar with the documents that have been entered into evidence with this proceeding.
Kevin Du:
Yes, I am.
Mr. Lell:
And did you listen to the testimony of the other city witnesses today?
Kevin Du:
Yes.
Mr. Lell:
And are you in agreement with the testimony that the other city witnesses provided?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 23 of 53
Kevin Du:
Yes. I agree.
Mr. Lell:
And is there any aspect of the testimony of the other city of witnesses with which you disagree?
Kevin Du:
I don't believe so.
Mr. Lell:
Do you recall the testimony concerning the difference between formal notices of violation and formal
orders on one hand versus letters on the other hand that was described by Ms. Turlough and Ms. Myrie?
Kevin Du:
Yes.
Mr. Lell:
And do you concur in that characterization that both of those witnesses provided.
Kevin Du:
I concur.
Mr. Lell:
Okay. Do you have anything else to offer or provide informationally concerning the history of water
quality enforcement at the Coreless property, beyond what Ms. Myrie and Ms. Turlough already
testified to?
Kevin Du:
No, I believe they reflected most of the... All of them.
Mr. Lell:
Okay. Could you please briefly describe the circumstances as you understand them leading up to the
January 6th 2020 NOV?
Kevin Du:
Yes. So we received internal notice of turba discharges into the city stormwater system. I responded by
going onsite. I took some samples, I took pictures, I did a walkthrough, and once I got my
documentation, I went back to the office, notified Lea and Theresa and ecology and Logan. And then I
also drafted the letter for them because we had turba discharges going into our MS 4. That's not
allowed. And that's what led us to the NOV.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 24 of 53
Okay. Did you personally have any communications with Coreless and Coreless's representatives prior to
issuance of the NOV?
Kevin Du:
Yes. I've spoken to Logan before regarding previous track out?
Mr. Lell:
Okay. And what was the substance of that communication or those communications?
Kevin Du:
It would be, "Hey Logan. I was onsite today. We saw track out. Could you please take care of it? Let me
know if there's anything else I can do."
Mr. Lell:
And were you involved at all, Mr. Du, in the preparation of the March 30 2020 closeout letter?
Kevin Du:
Yes. Yes, I drafted.
Mr. Lell:
And what investigative or inspection efforts occurred if any, prior to the preparation of that letter?
Kevin Du:
Oh yeah. So I went onsite after receiving notice of turba discharges, took photo documentation, I took
measurements to measure the NTUs, which is how you measure turbidity in water quality. Because, on
our code, it's supposed to be below a certain level.
Kevin Du:
I took background samples for how the water quality of the stormwater is before, without the turba
discharge, what it looks like without it. And took documentation, and that's my investigative work. But
we also went on the site and took photos for four separate days because the turba discharge was
ongoing. It happened at multiple times.
Mr. Lell:
Okay. Thank you. Do you agree with the testimony of the other staff members or other witnesses today
concerning the methods by which the city distributed the March 3rd 2020 closeout letter?
Kevin Du:
Sorry. Could you repeat that?
Mr. Lell:
I'll rephrase it? How was the March 3rd 2020 closeout letter sent to the landowner?
Kevin Du:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 25 of 53
We sent it via email or via physical mail if we do not have the email.
Mr. Lell:
So, to your understanding that the letter was not posted onsite?
Kevin Du:
Yes. It was not posted.
Mr. Lell:
To your understanding, it was not sent by certified mail at all.
Kevin Du:
No.
Mr. Lell:
Do you agree with Ms. Myrie's testimony and Ms. Turlough's testimony concerning the purpose and
effect of closeout letters generally in the larger scheme of the city's enforcement framework?
Kevin Du:
Yes, I do.
Mr. Lell:
To your knowledge, has any landowner ever attempted to appeal a closeout letter?
Kevin Du:
No, they have not.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever directed Coreless to
install pavement?
Kevin Du:
No.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever directed Coreless to
select or otherwise implement any particular corrective measure?
Kevin Du:
No.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 26 of 53
And do you agree with the statement by the previous city witnesses that as a matter of policy and
practice that the city typically does not direct landowners to install or otherwise implement a specific
measure in order to correct a violation?
Kevin Du:
Yes. I agree with it.
Mr. Lell:
Are you aware of any written or verbal communication from the city that ever informed Coreless tha t
Coreless could avoid city permitting requirements and implementing its selected measures to correct
the violation?
Kevin Du:
No.
Mr. Lell:
Thank you. No further questions for Mr. Du.
Mr. Olbrechts:
Okay. Mr. Lynn? Oh, Mr. Lynn, you're muted still. Need to unmute yourself.
Mr. Lynn:
Yeah. Thank you. That was my way of reminding myself not to ask too many questions. Good afternoon,
Mr. Du. Are you familiar with the city permitting processes to the extent that you'd know whether 14
days would be too short a time to apply for and have the city process and issue a permit and then
complete work?
Kevin Du:
I am not familiar.
Mr. Lynn:
Okay. You have just no idea how long that would take?
Kevin Du:
No sir.
Mr. Lynn:
That never comes into play in talking with applicants about what the appropriate remedy might be, to
fix a water quality violations.
Kevin Du:
I'm sorry. Can you repeat that?
Mr. Lynn:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 27 of 53
I'll withdraw the question, nevermind. You were asked some questions to distinguish this letter that
Coreless received on January 6th, from a notice of violation and order to correct. Was that your
testimony?
Kevin Du:
No, it's a violation warning letter.
Mr. Lynn:
Yes.
Kevin Du:
Yep.
Mr. Lynn:
Your testimony was that, that's something different than a notice of violation and order to correct?
Kevin Du:
Yes. Warning is different from order. Yes.
Mr. Lynn:
Is there any code provision you can site us to, that would tell us where a warning letter like this would
be defined or provided for in the code?
Kevin Du:
Not to my knowledge.
Mr. Lynn:
It certainly advised Coreless that there was an alleged violation of its property, right?
Kevin Du:
Of the warning letter? The...
Mr. Lynn:
Yes. And that it required action. It didn't just say, "You might want to think about this." It said, "Do this."
Correct?
Kevin Du:
Well, we advised them to take action and if they didn't, then we would have gone to an order to correct.
Mr. Lynn:
Well, it doesn't say that in the code though, does it? In the letter, the letter says, "If you don't do this,
we can bring a civil enforcement action, criminal sanctions and our monetary penalties." That what
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 28 of 53
would happen if you didn't take the required actions within the established period of time. Isn't that
how you understood your letter?
Kevin Du:
Right. In civil action, I believe an order to correct is one of those. I might be wrong.
Mr. Lynn:
Well, didn't you intend for Coreless to take this seriously and to advise them that there would be serious
consequences if they didn't?
Kevin Du:
I believe so. In the letter it says so.
Mr. Lynn:
Okay. I'm looking at an email that you used to send the closeout letter to Mr. Davidson and you copied
Mr. Walsh and Ms. Turlough and others. It's dated March 3rd 2020, and it's city Exhibit 4E-28.5, I
believe. And it's subject is 'Closeout of Notice of Violation and Order to Correct.' Isn't that what the
closeout letter was? It was closing out a notice of violation and order to correct?
Kevin Du:
I'm sorry. Could I see the email?
Mr. Lynn:
I don't have access to it, but somebody else, Mr. Lell I'm sure could share it with you.
Mr. Olbrechts:
Yeah. Actually I can, what's the exhibit number?
Mr. Lynn:
4E-28.5.
Mr. Olbrechts:
Oh, that's under the city exhibits?
Mr. Lynn:
Yes, sorry.
Mr. Olbrechts:
Okay. 4E-28.5. All right, here we go. Oh, okay. Someone else is putting it up. All right, go ahead.
Mr. Lynn:
Okay. I'm looking at the language that's right under your name, which is the subject matter. And I'm just
asking-
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 29 of 53
Kevin Du:
Correct. Yes. I'm may have done a typo in my subject of my email.
Mr. Lynn:
Okay. So you think that's just a mistake on your part. At the time, it's not what you were intending to
call it?
Kevin Du:
Right. Yeah. I was referring to the notice of violation warning letter.
Mr. Lynn:
But you do agree that one of the purposes of the closeout letter is to advise the applicant that the
matter has been put to rest? Is that correct?
Kevin Du:
In concern to a water quality violation, yes.
Mr. Lynn:
Yip. That's all I have. Thank you.
Mr. Olbrechts:
Okay. Mr. Lell, any redirect?
Mr. Lell:
Yes, very briefly. Mr. Du, there's been a lot of talk obviously about the paving that occurred on the
Coreless property in early 2020. And I think that there has been, if I understand it, som e sort of a
premise that there was no paving done on the site before that time. Do you know or does the city know,
is the city aware, of when the city actually knew that the pavement was being installed, what the
timeframe was of the city's knowledge and when that paving actually occurred? Are we able to
definitively identify that time period?
Kevin Du:
I wouldn't be able to recall other than the follow-up inspection that Logan scheduled with me, to show
me the incomplete paving and their plans.
Mr. Lell:
When was that? When were you aware of that? When did Logan provide that information to you?
Kevin Du:
I believe... I want to go back to the closeout letter. It states in there, I believe it was around February or
January, around there. February.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 30 of 53
Of 2020?
Kevin Du:
I believe so.
Mr. Lell:
Okay. Thank you. No further questions.
Mr. Olbrechts:
Great. Thank you, Mr. Du, appreciate your testimony. Mr. Lell, any other witnesses?
Mr. Lell:
Yes. Our next witness is Kevin Peterson.
PART 2 OF 4 ENDS [00:52:04]
Mr. Olbrechts:
Are any other witnesses?
Mr. Lell:
Yes. Our next witness is Kevin Peterson.
Mr. Olbrechts:
All right. Mr. Peterson, you need to unmute yourself. Swearing -in first, you swear or affirm to tell the
truth, nothing but the truth in this proceeding?
Kevin Peterson:
I do.
Mr. Olbrechts:
All right. And that's P-E-T-E-R-S-O-N, is that correct?
Kevin Peterson:
That's correct.
Mr. Olbrechts:
All right. Okay, go ahead, Mr. Lal.
Mr. Lell:
Thank you. Mr. Peterson, what is your official job title with the City of Federal Way?
Kevin Peterson:
I'm senior engineering plant reviewer.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 31 of 53
Mr. Lell:
Okay. And how long have you held that position?
Kevin Peterson:
That particular position, maybe a year and a half, but I've been a plan reviewer for close to 20 years.
Mr. Lell:
All with the City of Federal Way?
Kevin Peterson:
Yes.
Mr. Lell:
And what are your current job duties?
Kevin Peterson:
I review permit applications, either through the pre-application process, the land use process, and the
actual permitting process.
Mr. Lell:
And do you have personal knowledge about the Courtelis matter at issue in this proceeding?
Kevin Peterson:
Yes.
Mr. Lell:
What is the nature and extent of your involvement with the Courtelis matter?
Kevin Peterson:
My extent of the Courtelis matter is in the permit that they applied for. Well, actually originally the land
use permit they applied for, for a temporary batch plant on their site in... I believe that application came
in in May or June of 2020. I reviewed their land use application and then I believe in July they came in
with an actual building permit.
Mr. Lell:
Okay. And are you familiar with the various exhibits that have been presented into evidence for this
proceeding?
Kevin Peterson:
Most of them I'm not completely familiar with all of the previous water quality violation exhibits.
Mr. Lell:
Have you listened to the testimony of the other city witnesses during today's proceeding?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 32 of 53
Kevin Peterson:
Yes. In general, yes.
Mr. Lell:
And are you in agreement with the testimony of those other city witnesses?
Kevin Peterson:
Yes.
Mr. Lell:
Is there any aspect of the testimony the other city witnesses that you disagree with?
Kevin Peterson:
No.
Mr. Lell:
Okay. Are you familiar with the city's stormwater regulations?
Kevin Peterson:
Yes, sir.
Mr. Lell:
Okay. Could you please provide, in your own words, kind of a general summary of those regulations?
Kevin Peterson:
Well, anybody that's proposing to develop a piece of property, there are certain thresholds in our
stormwater water regulations that require permits. That's specified in section 16.15.010 regulated
activities. And also under our stormwater management design manual, the King County service water
design manual also regulates and requires when a review is required.
Mr. Lell:
Okay. And are you familiar with the city's enforcement framework for those stormwater regulations?
Kevin Peterson:
I am not as familiar with the enforcement side of that.
Mr. Lell:
Okay. So if I understand your testimony, your role is more geared toward the review and permitting side
than it is the enforcement side. Is that correct?
Kevin Peterson:
That's correct.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 33 of 53
Mr. Lell:
Okay. Did you hear Mr. Elliott discuss the location and topography and physical condition of the
Courtelis site in his testimony?
Kevin Peterson:
Yes.
Mr. Lell:
Is there anything that you would add to Mr. Elliot's testimony regarding that?
Kevin Peterson:
No, that was quite accurate.
Mr. Lell:
Okay. And going back to the permit applications that you briefly touched on in your introductory
statement for the Courtelis property, could you please describe those in more detail, specifically as they
relate to stormwater issues?
Kevin Peterson:
So their land use application came in and the permit or the application materials included site plans and
a technical information report, which is specific to stormwater, and there was plans. One of their plan
sheets showed a fairly large detention vault, water quality vault, and stormwater collection in
conveyance system. The technical information report, which I believe is one of the art exhibits,
specifically stated that as part of their development of this temporary batch plant, a large portion of
their site was to be paved and a stormwater system was to be installed that met the city's standards for
detention and water quality.
Mr. Lell:
Okay. Thank you. Anything else to add with specific respect to the building permit application?
Kevin Peterson:
And the building permit application came in and none of the aforementioned materials as far as paving
or stormwater system collection conveyance detention was presented any of those materials. And that
caused us to write a series of review letters that requested those items be shown on the plan so that we
can continue and complete our review of their permit.
Mr. Lell:
And with respect to Mr. Elliot's testimony that the land use permit was issued earlier in 2020 and was
not timely appealed, is that your understanding as well?
Kevin Peterson:
Yes, that's correct.
Mr. Lell:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 34 of 53
And Mr. Elliot's testimony that the building permit, I think in his words was stalled or is on hold, is that
an accurate statement to your understanding?
Kevin Peterson:
Yes, that's correct.
Mr. Lell:
Could you please describe the circumstances leading up to the December 18th, 2020 notice of violation,
and particularly how the city became aware of the violation that resulted in that directive?
Kevin Peterson:
Yes. So I had gone into the office. I believe I had a meeting with another applicant. So I had gone in to
meet with that applicant, hold that meeting. When I left that meeting, on my way home I drove past the
Courtelis site, just as a general... See what's going on here, see if there's anything new a s far as if there's
been a movement on their permit, which shouldn't have been because the permit hadn't been issued.
But I did notice that a section of their site had been paved that didn't look new.
Kevin Peterson:
And so I stopped, got out, took a little closer look and sure enough, when I... I Think Mr. Elliott even
indicated I got home, I checked the Google earth map view or satellite view and noticed that what I had
seen had been paved wasn't paved in May of 2019.
Mr. Lell:
Mr. Peterson, did you have any communications directly with the Courtelis or its representatives
following your discovery of that paving?
Kevin Peterson:
I had sent a letter to Apex Engineering. Apex Engineering is their contract engineering firm. They are
listed as the applicant on the permit. I sent a letter stating that I had noticed this paving had been
noticed, and besides what we've been trying to enforce through other previous letters on this permit,
they would be required to upgrade their entire site to meet our nonconforming water quality code,
which requires if you pave or are adding pervious surfaces over a certain amount, then your entire site
needs to be upgraded to meet our water quality code section.
Mr. Lell:
Any other communications that you can recall?
Kevin Peterson:
I don't recall any after that letter.
Mr. Lell:
Okay.
Kevin Peterson:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 35 of 53
My last letter to them was December 14th, I believe.
Mr. Lell:
Thank you. No further questions.
Mr. Olbrechts:
Okay. Mr. Lenn.
Mr. Lynn:
Yes. Thank you. So with respect to these land use applications that were pending before the city, there
was a proposal to build a car wash on the property.
Kevin Peterson:
Yes, that's correct. That did come in a couple of years ago and I did review that as well. Yes.
Mr. Lynn:
Okay. And that did involve substantial paving of the site and proposed an upgrade to the water
treatment system?
Kevin Peterson:
Yes. The car wash itself was proposing to improve and pave and have their car wash in the Southeast
corner of their site. However, with what they were adding for impervious, that project is of itself also
triggered our nonconforming water quality code.
Mr. Lynn:
Right. So had that project gone forward, it would have been required to upgrade the entire storm
system?
Kevin Peterson:
They would have been required to upgrade to the non... So they were meeting our water quality
treatment for their site.
Mr. Lynn:
And that plan had the vaults that you mentioned earlier, the water quality vault and so forth, correct?
Kevin Peterson:
That plan had... Yes, it had separate detention and water quality vaults proposed, but also the land use
application that they submitted with the temporary batch plant showed a separate system to the West
of that site.
Mr. Lynn:
Okay. And that application was put on hold, correct? The city really hasn't taken any action on that in
some time, has it?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 36 of 53
Kevin Peterson:
You're talking about the car wash site? Yes, that's correct.
Mr. Lynn:
Okay. And so when the applicant came in with a different plan, just to change the batch plants and
indicated it only intended to pave a small amount of square footage... Well, first of all, you agree that
only a small amount of square footage would be needed to accommodate the change in the batch
plants?
Kevin Peterson:
My understanding is they needed to install a footing or a foundation for the temporary batch plant.
However, as I stated before, their land use application showed much more than that.
Mr. Lynn:
Right. Are you aware that the city required Courtelis to basically combine its small plan for the batch
plant paving with its large plan for the car wash proposal, even though the car wash proposal was not
then going to go forward?
Kevin Peterson:
I reviewed these as separate applications. I didn't necessarily believe that this application for the batch
plant had anything to do with the car wash plans.
Mr. Lynn:
So if someone at the city required that they be combined, would that have been somebody in a land use
area and not in the engineering side of things?
Kevin Peterson:
I honestly couldn't answer that question because I don't know the answer to it.
Mr. Lynn:
Okay. But at least as you see the batch plant proposal by itself, if none of this other additional paving
was proposed, would not require an upgrade to the storm system.
Kevin Peterson:
Our requirement, besides what we saw in the land use application, which provided plans which were
proposed, also requires that we have a code section that requires all the circulation and parking and
access areas of a site be paved to a material superior or equal to that of the right of way that they get
access from.
Mr. Lynn:
Okay. So your contention is that no matter what the applicant would, if it changed anything about the
site, be required to upgrade the water to the storm drainage treatment system?
Kevin Peterson:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 37 of 53
Essentially, yes.
Mr. Lynn:
Okay. You are familiar with the permit process that would be required for a site development permit in
the city?
Kevin Peterson:
Yes.
Mr. Lynn:
And how long would that take?
Kevin Peterson:
I couldn't give you an accurate answer, it all depends on the project itself and the complexity of the
project. Some are fairly quick and some are drawn out over years.
Mr. Lynn:
Isn't it fair to say that even a fairly quick one would likely take at least a couple of months?
Kevin Peterson:
I think that's fair, yes.
Mr. Lynn:
Okay. That's all I have. Thank you.
Mr. Olbrechts:
Okay, Mr. Lal, any redirect?
Mr. Lell:
No redirect. Thank you, Mr. Tim.
Mr. Olbrechts:
Okay. Thank you, Mr. Peterson. All right, Mr. Lal, any other witnesses?
Mr. Lell:
Yes. One final witness and that's EJ Walsh.
Mr. Olbrechts:
Okay. Mr. Walsh, I need you to unmute yourself. We need to swear you in. Do you swear or affirm to tell
the truth, nothing but the truth in this proceeding?
EJ Walsh:
I do.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 38 of 53
Mr. Olbrechts:
All right. And that's W-A-L-S-H. Is that correct?
EJ Walsh:
It is.
Mr. Olbrechts:
Okay. Great. All right, Mr. Lal, go ahead.
Mr. Lell:
Thank you. Mr. Walsh, what's your formal job title with the city?
EJ Walsh:
Public works director.
Mr. Lell:
And how long have you been employed with the city?
EJ Walsh:
I've been employed since 2015.
Mr. Lell:
And have you always had that job title during your time at the city?
EJ Walsh:
No. I was confirmed as the public works director April 3rd, 2018, before City Council.
Mr. Lell:
And as director, what are your job duties?
EJ Walsh:
I oversee all of public works and report to the mayor and City Council.
Mr. Lell:
And do you have personal knowledge regarding the Courtelis matter that's at issue in this appeal?
EJ Walsh:
I do.
Mr. Lell:
And what's the nature and extent of your involvement with the Courtelis matter?
EJ Walsh:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 39 of 53
As I said, I oversee all public works, so as many of the letters I get CC'd on them. I've also been involved
through staff briefings where they're briefing me throughout the entire process.
Mr. Lell:
Are you generally familiar with the city documents that have been entered into the record as evidence
in this proceeding?
EJ Walsh:
I am.
Mr. Lell:
And have you listened to the testimony of the other city witnesses who testified today?
EJ Walsh:
I have.
Mr. Lell:
And do you disagree with any of the testimony that they've provided?
EJ Walsh:
No.
Mr. Lell:
Okay. I'd like to turn your attention to the provision of the city's code that was cited in the notice of
appeal by the appellant. And if I could get that up on the screen one more time, please. It's FWRC
115060.
Mr. Olbrechts:
Okay. That up.
Mr. Lell:
And while that's coming up on the screen, I would just like to ask, Mr. Walsh, as part of your position as
director, are you the official at the City of Federal Way, the highest official that has an interpretive
authority over the various public works regulations that the city has adopted?
EJ Walsh:
I am.
Mr. Lell:
Okay. So could you please look at subsection one of FWRC 115060?
EJ Walsh:
Yes.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 40 of 53
Mr. Lell:
And in the first sentence there, there's a reference to order to cease activity and notice and order. In
your understanding as director and your familiarity with the code, is the city's March 3rd, 2020 close -out
letter a notice and order, or an order to cease activity?
EJ Walsh:
And it is not.
Mr. Lell:
Okay. In your understanding as the director and your familiarity with the city's regulations, is a close -out
letter appealable?
EJ Walsh:
No.
Mr. Lell:
Okay. To your knowledge, has a close-out letter ever been appealed in the City of Federal Way?
EJ Walsh:
No.
Mr. Lell:
Okay. Do you agree with the testimony of Ms. Myree, Mr. Du and Ms. Perlo concerning the history of
close-out letters in the city and how that particular document template was created?
EJ Walsh:
I do.
Mr. Lell:
Looking at the third sentence then of FWRC 115060, and the references there to the city's ability to
request a hearing before the hearing examiner, to assess costs, modify previous orders, or to enter
other orders as needed, in your understanding, Mr. Walsh, is this provision of the cod e applicable to the
city's March 3rd, 2020 close-out letter?
EJ Walsh:
It is not.
Mr. Lell:
Okay. And could you explain in your view why that it is not?
EJ Walsh:
Well following under subsection one, this is not something that follows that process. So the subsequent
sections are not applicable. But even further than that, the letter is a informal document, frankly, for our
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 41 of 53
files more than anything, but we are not seeking to impose a daily monetary penalty on the party as part
of this, and we're not seeking to modify an order. So there's no need to go to the hearing examiner since
we're not seeking to do either of those.
Mr. Lell:
Okay. Thank you. Are you familiar with previous permitting requests by Courtelis in the City of Federal
Way?
EJ Walsh:
I am.
Mr. Lell:
Has Courtelis gone through the city's pre-application process for other matters besides the ones that are
issued in today's proceeding?
EJ Walsh:
Multiple times?
Mr. Lell:
Could you describe that to the best you can?
EJ Walsh:
Yes. So, as it has been mentioned several times, they went through a formal pre -application process for
the car wash sites some years ago. They have also been through it more recently for another site they
are contemplating acquiring is my understanding. I do not know if they've actually acquired that or not,
but they have gone through that process multiple times.
EJ Walsh:
As part of that process, we go through a pre-application, they submit materials. So your staff reviews
them as does Lake Haven, sewer and water authority, and other outside agencies, South King Fire is
another one. And then we do a conference with the applicant and go item by item, division by division,
and highlight all of the key things that are needed for a complete application.
EJ Walsh:
It's been our experience that this helps the applicant as they move through the process when they
submit a formal permit, because they have an understanding of what the city's requirements are. So
they did complete that process multiple times historically.
Mr. Lell:
And on the continuum of sophistication with a very uninformed mom and pop style applicant on one
extreme end and a large multinational company on the other, where would Courtelis fall on that
spectrum in terms of its general sophistication related to permitting matters generally?
EJ Walsh:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 42 of 53
As far as permitting goes, I will say Courtelis is probably one of the more sophisticated entities we work
with within the city. If it's okay, I'll keep my answer in terms of the applicants we deal with int ernal to
the city. But I would put them at the top of the sophistication level of applicants we deal with that are
submitting applications to the city.
Mr. Lell:
Do you have any reason to believe that Courtelis would not be familiar with the city's permitt ing
requirements within the City of Federal Way?
EJ Walsh:
I do not. They've hired a well-regarded engineering firm to assist them with that. So my belief would be
they're completely familiar.
Mr. Lell:
Okay. Are you aware of anything in the city's regulations that would enable a code violator facing a
notice of violation to avoid permitting requirements in relation to whatever corrective measures are
ultimately implemented to correct the violation?
EJ Walsh:
No.
Mr. Lell:
Okay. Thank you. I have no further questions.
Mr. Olbrechts:
Okay, Mr. Lenn.
Mr. Lynn:
Yeah, just a minute, please. Sorry. Battling a non-COVID cold, Mr. Olbrechts.
Mr. Olbrechts:
I hope you feel better.
Mr. Lynn:
Thanks. Have there been any steps taken since this matter came up to improve communications
between the violation notice side and the permitting side?
EJ Walsh:
Are you asking internal to the city or, I guess, in what context are you asking that?
Mr. Lynn:
Yeah. I'm asking about the city processes.
EJ Walsh:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 43 of 53
No.
Mr. Lynn:
Okay. How long would it take to process a site development permit for this property?
EJ Walsh:
I would say that would depend on the level of completeness on the application we receive from the
applicant.
Mr. Lynn:
Okay. You were arguing or testifying that there was something different between what was issued to
the Courtelis companies on January 6th and a notice of violation in order to correct. The first sentence
describes a notice and order as a notice of violation and an order to correct. Didn't the January 6th
notice give Courtelis notice of a violation, an alleged violation?
EJ Walsh:
I'm not sure I'm following your question.
Mr. Lynn:
Are you familiar with the January 6th NOV?
EJ Walsh:
Yes I am.
Mr. Lynn:
Okay. And we call it an NOV, which is a Notice of Violation. That's what it is, isn't it?
EJ Walsh:
We call it an NOV, yes. In short.
Mr. Lynn:
And that's what the title says. It says notice of water quality violation, and then it add s the word
warning.
EJ Walsh:
Correct.
Mr. Lynn:
But it gives notice of a violation. I mean, the premise of this is that someone has violated the code,
correct?
EJ Walsh:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 44 of 53
The premise is someone has violated the code. That is correct. It is a warning, as you said, a Notice of
Violation is step two, this is step one.
Mr. Lynn:
Well, okay. I understand you want to characterize it today as a warning, but let's just read what it says
that notifies of the violation. And then it says corrective actions, number one, immediately clean and
remove sediment from catch basins. Number two, immediately clean up the track out and the right of
way. And then it goes on number three, please... I guess the word pleases is kind of nice, but, implement
both short and longterm BMPs. So isn't that more than just a suggestion? It's asking the applicant to do
something. Is it not?
EJ Walsh:
It is asking them to clean the public right of way. Yes.
Mr. Lynn:
Okay.
EJ Walsh:
And then there's a separate [crosstalk 01:17:29]
Mr. Lynn:
I'm not saying whether it's something they should do or shouldn't do, I'm just saying it tells them a
violation and it tells them what to do about it. It gives them an order to do something.
EJ Walsh:
That is correct.
Mr. Lynn:
Okay. And then it goes on to say, "To impose a time limit, if the corrective actions are not commenced
within 15 days of the date listed above or completed by January 27th, the city may bring in a civil
enforcement action, criminal sanctions and or monetary penalties to abate, discont inue and so forth."
And then it goes on to say, the next part-
PART 3 OF 4 ENDS [01:18:04]
Mr. Lynn:
Then it goes on to say the next paragraph, if you wish to avoid penalties, then you have to do certain
things. So my question is, isn't that an order, a notice of a violation and an order to do something with a
specification of what the consequences will be, if you don't timely remedy the problem?
EJ Walsh:
So, most of what you outlined is the step two of the process, the formal violation letter, which impos es
the start of penalties and all of that. So the warning is step one, the formal violation letter is step two,
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 45 of 53
failure to comply with the warning leads to the violation. Yes. If I'm summarizing what you're asking
correctly, that is correct.
Mr. Lynn:
So this is issued by certified mail, it's a formal letter from the city. Doesn't say anything about this just
being a warning, if you decide not to do anything about it, we won't really do anything until we send
some other kind of a letter to you. Doesn't it tell you by certified mail, this is an order and you better
comply with it, or these penalties will befall you?
EJ Walsh:
It tells you to comply with it, or it will escalate. Yes.
Mr. Lynn:
Mr. Lall, asked you some questions about section 1.15.060, regarding the appeal to the hearing
examiner. And has some things that the person receiving the notice can do. They can appeal, but it also
says the city may also request a hearing before the hearing exami ner to assess costs, modify previous
orders or enter other orders as needed.
Mr. Lynn:
And he asked you a couple of questions about that, and I think you said, there would be no reason to do
that in this circumstance. Couldn't the city knowing that the applicant had paved the property, in fact,
citing the applicant and thanking the applicant for doing that, I guess I shouldn't call them applicant, it's
an owner, I guess.
Mr. Lynn:
Couldn't the city knowing that and knowing it wasn't permitting, it's just a matter of public record issued
a subsequent order within that time period, directing the applicant to comply with city codes regarding
the paving. Wouldn't that be a good example of an additional order that the city could have entered as
needed?
EJ Walsh:
I think that's probably not an accurate characterization. I think the intent of that is more had the city
gone out and factored out the inlets, more or less on behalf of the property owner, that gives us the
ability to go to the hearing examiner and request to recoup the costs incurred by the public to clean up
that public infrastructure.
EJ Walsh:
I think that there is certainly the ability to append a hearing through the process you've outlined. But
the intent of that to my understanding is more to recoup costs associated with actions, the city has to
take due to immediate.
Mr. Lynn:
Well, the first example is to assess costs. So that's what you're talking about, but then it goes on to say,
modify previous orders. You could certainly modify the previous order to require permit compliance.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 46 of 53
And then it says, or to enter other orders as needed, which is very broad authority. So, isn't it fair to say
that that authority is considerably broader than just assessing costs?
EJ Walsh:
It is broader, but this is a water quality violation that we're talking about, not a violation of the
development services code. So specific to-
Mr. Lynn:
Go ahead.
EJ Walsh:
So, specific to a water quality violation. The standard for the city is to fix up and to control it onsite by
the property owner. So, that's a pass fail requirement. So-
Mr. Lynn:
And so, even though you're involved in this and copied on all the emails before, during and after, and
the letters that started this and the letter that closed it out, and even though you know, that a permit is
required and was not issued in this case, you don't think this authority is one that the city could have
exercised here?
EJ Walsh:
So at the time I did not know a permit was not issued. So to be very clear, I received these for all of the
NOV issued citywide, not just specific ones. So, unfortunately that's a fair amount of mail. We do not do
a file review every time, or I do not do a file review every time I receive one, to cross -reference to make
sure a property owner has secured the proper permits.
EJ Walsh:
So when I see a closeout letter, that such as you're referencing my take on it again, I do not sit there and
do a file review to confirm that they've done every proper step, is the property owner has done what
they are required to do to rectify it, in this case, that also includes permitting the improvements they
may have.
Mr. Lynn:
And then that was the reason I asked the question at the beginning about whether or not there were
any systemic changes.
EJ Walsh:
And my answer is no. So in my history with the city, this is the first time that I am aware that a property
owner has not gone through the process that they should to obtain permits.
Mr. Lynn:
How often in the course of a week does something unique happen to you as the public works director in
the City of Federal Way?
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 47 of 53
EJ Walsh:
Everyday.
Mr. Lynn:
That's a rhetorical question, I'll withdraw it. That's all I have. Thank you.
EJ Walsh:
My answers every day for you.
Mr. Examiner:
All right. Mr. Lall.
Mr. Lall:
Very briefly. Thank you. Mr. Walsh, I think you touched on something in your response comments to Mr.
Lynn that I think is critical to this larger dispute, and that is the distinction between an enforcement
action based on stormwater quality versus an enforcement actio n that's based on failure to achieve
permitting compliance. In regards to the January 6th, 2020 NOV, that the city issued against the Correlus
property, was that based on failure to attain storm water compliance or quality, or was it based on lack
of permitting?
EJ Walsh:
So there's two NOVs, without seeing them on my screen, I'm not... There's a December one and a
January one. I'm not-
Mr. Lall:
Sorry, I'm referring specifically to the January 6th, 2020 NOV, that ultimately led to the March 3rd, 2020
closeout letter. Was that notice that January 6, 2020 NOV, based on stormwater quality issues, or was it
based on the land owner's failure to obtain a proper permit?
EJ Walsh:
That was based on stormwater violations.
Mr. Lall:
And was the city's March 3rd, 2020 closeout letter based on stormwater quality issues or was it based
on permitting issues?
EJ Walsh:
Stormwater.
Mr. Lall:
Thank you. No further questions.
Mr. Examiner:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 48 of 53
Thank you. Well, sorry, Mr. Lynn-
Mr. Lynn:
No.
Mr. Examiner:
Okay. All right. Thank you, Mr. Walsh, I appreciate your testimony. All right. And Mr. Lall, I think you said
that was your final witness, is there anything else you wanted to say before we move on to a rebuttal
from the felon, if any?
Mr. Lall:
Nothing from the city, Mr. Examiner.
Mr. Examiner:
Okay. All right. Mr. Lynn, did you have any rebuttal evidence you wanted to present?
Mr. Lynn:
I'm suspecting not, but I'm wondering if we could take our 90 minute,
Mr. Examiner:
Sure.
Mr. Lynn:
It's been 90 minutes, I think. If we take a break, then I can have a quick recognizer and make sure.
Mr. Examiner:
Okay. All right. Well, I'll be back in session at 2:40 then. We'll see you then.
Mr. Lall:
And then Mr. Examiner, I'll do the same. Thank you.
Mr. Examiner:
Okay. (silence). All right. Let's just wait for Mr. Lall to join us and then we'll get back into it. There he is.
Okay. Back on the records, 2:40 PM, February 8th, 2021. We're back from a 10 minute break on the
correspondent to NOV appeal, index 20-004. We're now at the rebuttal stage, if any of the appellants,
Mr. Lynn, did you have anything you wanted to present?
Mr. Lynn:
No.
Mr. Examiner:
Okay. All right. So, we talked about at the beginning about having a little written briefing, the city
wanted a chance to file a written response to the accounts per hearing brief. And I think that would also
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 49 of 53
then trigger a right of reply brief from the appellants if they wanted one. And we can schedule that,
depending on how much time the parties need. The parties also indicated they wanted to make a few
verbal comments. Is that still the case, Mr. Lynn, did you want to make some comments before we wrap
it up today?
Mr. Lynn:
Well, I started with a little opening argument, so I don't feel the need to do that. I guess if Mr. Lall wants
to do it, then we can certainly both jump in here.
Mr. Examiner:
Okay. Mr. Lall, did you want to say anything or just save your comments for your written?
Mr. Lall:
Very briefly, Mr. Examiner? I will say most of my comments, particularly the detailed one for our written
post-hearing briefing. I think the note for the record, that in the city's view of the appellant who carries
the exclusive burden of proof and persuasion in this proceeding has not met that burden. We have
essentially undisputed testimony regarding the occurrence of the violation.
Mr. Lall:
There's no real credible argument or question that the property was paved, that the city's code would
require a permit compliance with that action, and that a permit was not obtained. Really, what Correlus
is arguing in this appeal, is that the city has somehow waived its ability to enforce that permitting
requirement by virtue of the city.
Mr. Lall:
So in March 3rd, 2020 closeout letter, and very briefly to reiterate my opening comments in the city's
view that, that argument is without merit. The March 3rd, 2020 closeout letter, by its terms and by its
context and effect, is a purely informational document. It does not have independent and binding
regulatory authority, it was created as a template simply to essentially prepare the file and provide
some note to the property owner that the specific corrective action that had been provided for.
Mr. Lall:
But it doesn't purport by its terms to excuse any permitting compliance that would otherwise be
imposed by the code. And that again is a point that was raised or testified to, about multiple city
witnesses, including the city's highest court official in this context, Mr. Walsh. With respect to FWRC
115060, that provision is inapplicable to this situation on its face.
Mr. Lall:
The references in that code section two, notices, an orders and formal orders to corre ct, are inapplicable
here. Those are not by their terms, they're equivalent to the March 3rd, 2020 letter, and the city was
not required to run back to the hearing examiner and request a hearing for the purpose of enforcing a
permitting requirement that's very clearly established elsewhere in its regulations.
Mr. Lall:
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 50 of 53
By the same token, the March 3rd letter is not and cannot be a final land use decision under the Land
Use Petition Act both under the plain language of RCW 3670C020, and the three precedentia l cases that
the city cited in its opening statement today, the Harrington case, the WCHS case and the Stengel's
family trust case. Finally, there wasn't much testimony concerning this point.
Mr. Lall:
But since it was at least briefly touched on by Mr. Davidson in his testimony, and also raised at least
peripherally in the appellant's notice of appeal, the issue of the estimated cost of compliance in this
context is something that I will very briefly respond to. First of all, that's not an issue that's rea lly
properly before the examiner. The city has not required any particular corrective measure in its original
January 6, 2020 NOV.
Mr. Lall:
It hasn't required any specific measure in the NOV, that's at issue in this appeal, which is the December
18th, 2021. So it's premature to talk about the expense of particular avenues for compliance, when
those really haven't been identified or were never really mandated by the city, in the first instance.
Second, and in a related point, you heard Mr. Elliott refute, the contention of a million dollar or
otherwise disproportionately excessive cost of compliance that Mr. Davidson had referred to.
Mr. Lall:
And Mr. Elliott did indicate that whatever remedial measure would be appropriate here could be
presumably accomplished for a much lesser price point, whether using some type of modular wetland
approach and, or through a simple retention pond. So we'll be happy to explain those points further in a
post-hearing brief, but in the city's view, in summary, we do not believe that the appellant has met its
appellate burden in this proceeding, and we feel that the appeal should be denied.
Mr. Examiner:
Okay. Thank you, Mr. Lall. Mr. Lynn, did you want to make any comments in a wrap?
Mr. Lynn:
Yes. I will likewise limit. I think this case shows exactly why finality is so important. Basically what
happened in this case was that the city had expected this property to be paved. It did everything he
could to bless it prior to this event. Finally, the event triggered it. It was the cat alyst for paving, but that
was something the city expected and actually wanted. I think if it were a candidate about it.
Mr. Lynn:
So, Correlus paved the property, in short order and as a quick response to the city's directive. And now
the city is advising that there were very significant constant consequences to that. Not only would
Correlus have saved the cost of paving, but it could have avoided what in any event will be a significant
remedy here. If they have to tear out that pavement, that will be sign ificant.
Mr. Lynn:
If they have to upgrade, that will be significant. Maybe the $2 million price tag isn't the solution that will
be sought, but under the one that Mr. Elliott suggested, there would be an above ground pond that
would use up land making it unavailable. So you have to take into account the price of that land too. The
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 51 of 53
important thing though, is that, the die was cast, consequences resulted from that, and that's why
actions like that have to be fined.
Mr. Lynn:
So quickly on the code, it's interesting that the city has some hybrid here where this is supposedly under
a warning, but put yourself in the position of the Correlus' or as their lawyer, you get a certified mail
letter from the city, which by the way, uses the same stationary, whether they're sending in a permit
issue or a water quality issue, the letter says, you're in violation of the code, you've got this amount of
time to come into compliance, you've got to take these steps, and if you don't, these are the
consequences that befall you.
Mr. Lynn:
That is a notice, an order to correct, that city may have semantically not posted the property or done
something else. But I know that had the Correlus' has come to me and said, "Is this an appealable
order?" I'd say, "Heck yes, we'd better assume that this is an appealable order." It was very formal, it
looks to me like a notice, an order to correct.
Mr. Lynn:
And I think that triggers a variety of consequences which you're going to ultimately have to deal with.
But LUPA is also applicable that paragraph C of 3670CO20, two, says one of the things that's a land use
decision is the enforcement by a local jurisdiction of ordinances, regulating the improvement,
development, modification, maintenance, or use of real property.
Mr. Lynn:
That's exactly what we have here, and this was a land use decision that was appealable under LUPA,
nobody appealed it, and we contend that the outcome here, the approval by the city of the paving was
the final action, no longer subject to challenge. That's all.
Mr. Examiner:
Okay. Thank you, Mr. Lynn. Thank you Mr. Lall, and everyone else who participated today, I have a lot of
information to go through. I look forward to the final briefing, I find these issues very interesting. I don't
know if there are many people in the State of Washington that do, but fortunately I do, and I'm happy to
go through the several hours of testimony today to sort all that out.
Mr. Examiner:
So again, thank you for participating and I will have a decision out in the next couple of weeks. Let's set
the deadlines, the... Mr. Lall, how much time do you need for your response brief? And you're on mute,
Mr. Lall, still. You need to unmute yourself. There you go.
Mr. Lall:
I would request a week and I believe that a week from today is actually a State holiday -
Mr. Examiner:
Right. President's day.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 52 of 53
Mr. Lall:
So, week from tomorrow.
Mr. Examiner:
Yeah. That's okay. Mr. Lynn, any problem with that?
Mr. Lynn:
Nope, that's fine and-
Mr. Examiner:
Okay. And for your reply brief, how much time do you want?
Mr. Lynn:
The same, if we could.
Mr. Examiner:
Another week. Okay. And Mr. Lall, any problem with that?
Mr. Lall:
No objection.
Mr. Examiner:
Okay. So the Mr. Lall's brief for the city then will be due on February 16th and Mr. Lynn's reply brief will
be due on the February 23rd. And I take it, no new evidence allowed. This is just argument, right?
Mr. Lynn:
Right.
Mr. Examiner:
That's our understanding?
Mr. Lynn:
Yes.
Mr. Lall:
Yes. Okay.
Mr. Examiner:
So, we'll keep it that way, no new documents or declarations or anything, just stick to the record that
you have before you. Also, I've just started experimenting a little bit, but I found an online transcription
service that gets out a transcript within a couple of days and I'll email that to the parties, if that helps
them in their briefing and all. So.
This transcript was exported on Feb 09, 2021 - view latest version here.
Federal Way February 8 Hearing Part 2 (Completed 02/09/21)
Transcript by Rev.com
Page 53 of 53
Mr. Lall:
Thank you.
Mr. Examiner:
All right. Great. Again, thank you for your participation and we are adjourned for this afternoon.
Mr. Lall:
Thank you.
Mr. Lynn:
Thank you.
PART 4 OF 4 ENDS [01:41:46]