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Summary of PCHB Appeal Issues and How Addressed in Amended 401
PCHB Conditions from 8/12/02 Ecology Appeal Port Appeal WA Supreme Court How Addressed in Amended 401
1. Enhanced treatment BMPs     Affirmed Added PCHB language to J.2.d
2. Sample SW above and below outfalls     Affirmed Added PCHB language to J.2.g
3. WET testing for injury as well as mortality     Affirmed Added PCHB language to J.2.h
4. 100% retrofit of SW facility required     Affirmed Added PCHB language to J.1.c
5. Use of WER study limited Overturned No change necessary
6. 1 CFS mitigation for Des Moines Creek   Overturned No change necessary
7. New fill criteria established by PCHB Overturned, but required Ecology to recalculate values for selenium and silver, TPH set at zero No change to majority of language, recalculated Selenium and silver, TPH set at 0, see E.1.b)—table with new values for selenium and silver, and footnotes. Also amended Excel table that goes with Attachment E.
8. Prohibition on use of SPLP Overturned, but required that SPLP results be compared to both surface and groundwater criteria. Added language to E.1b) and to Attachment E to require comparison of SPLP test results with both surface and groundwater quality criteria.
9. Increased number of fill samples10. Match pre-project hydro periods of wetlands     Affirmed Changed E.1.a)iv) to require number of samples required by MTCA (deleted previous table)
10. Match pre-project hydro periods of wetlands     Affirmed Added PCHB language to D.1.g)
11. 2:1 on-site mitigation ratio   Affirmed but struck language limiting offsite mitigation No change necessary to 401. Have adequate mitigation with Auburn site per Supreme Court.
12. If decrease in delineation, more in-basin mit.     Affirmed Added PCHB language to D.1.h)
13. Seepage monitoring: Ecology shall take action to eliminate exceedences of water quality standards   Affirmed Added PCHB language to E.3
14. Monitoring for Fill and Preferred pathways shall continue for at least 8 years     Affirmed Added PCHB language to B.1.c) and d)
15. Monitoring for as long as there are contaminates in the AOMA     Affirmed Added PCHB language to B.1.c) and d)
16. Water right required for low flow vaults   Overturned No change necessary

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