All:

This is to let you know that we settled our case with Waterfront
Construction yesterday. This was done without formal court action, as
The case turned out a formal action in court would have been difficult
To pursue.

Here are the basic components of the settlement.

Not later than June 30th, 2010, Waterfront Construction has agreed to
Cease operations, and complete the formal process with Department of
Ecology to cancel their NPDES permit coverage for their site. With one
Exception, they will remove all their materials and equipment from the
Site, and in fact are in the process of doing so now. The one exception
Is the dredge material that is in the cell in the middle of the site.
They have provided sample data showing that material is clean, and in
Fact is mainly peat and organic muck from dredging that they had
Planned, and was clean enough to use for environmental restoration
Projects elsewhere. I inspected the dredge spoil cell by walking around
The top of the dirt retaining wall and walking on part of the material.
There is a rectangular box shape excavated from the east end of the cell
That allows you to look at the profile of the dredged materials as
Well. All the material I saw there was peat and mucks. It has
Naturally revegetated on top of the spoils with reeds and some small
Trees, essentially establishing a wetland plant community there. It
Would be expensive to remove all the material, and would have the
Potential for more environmental harm than leaving it alone. There
Will, nearer to the closing date be some recontouring work done around
This area.

They have put in silt fencing and hay bales at the edges of their site
At or near the top of the slope for all areas adjacent to or sloping
Down to either the lake or the slough, and have agree to maintain this
Until they vacate the site. They have agreed to do this in a way that
Will eliminate any discharges from the site, with the exception of the
Single discharge location allowed under the terms of their permit. I
Inspected the silt fencing and hay bales as well as a structure they put
In across a roadway they used to access the shore and barge area. It
Appeared to be put in correctly, and should eliminate stormwater
Discharges, and prevent loose soils from discharging into the lake or
Slough. These are what are referred to as temporary conrols or Best
Management Practices, which normally wold be less than what is required,
But due to the fact the site is closing in less than six months, it
Doesn’t make any sense and nobody would require that they put in
Permanent stormwater and erosion controls or BMPs.

You will likely see, if you are in the vicinity, a lot of truck
Containers leaving the site. Waterfront has contracted with Nucore to
Crush and remove a lot of large concrete blocks, that they couldn’t find
Another use for.

They will be providing for free, copies of all correspondence to and
From Ecology, which will include any sampling they do, permit discharge
Reports and closure related documents, which will require Ecology
Approval as part of the canceling of their permit, to us so that we can
Monitor how they are doing in meeting their permit and the terms of our
Settlement agreement.

Part of the site closure, and canceling the permit, requires the site to
Be revegetated. This is usually done by means of hydroseeding the
Exposed soils on the site. Waterfront has agreed to spend $20,000 over
And above this to do additional planting with a variety of native
Species on the site. This will do a better job of securing the site
Soils, speed up the vegetation recovery at the site, and improve the
Functions and values of the resulting habitat as compared to just
Hydroseeding.

They have also agreed to pay for our attorney and expert fees.

This has turned out somewhat differently than what I anticipated.
Although their leaving the site is the optimal solution for the
Community, shutting down operations is not something we seek in our
Cases, and it is very rare for any federal judge to require this, making
It almost impossible to achieve this through Clean Water Act litigation
Even if it is a desired outcome. In a practical sense there are some
Other things I would have tried to get accomplished, should this have
Gone to court, but once Waterfront decided to leave the site, that would
Have made our case impossible, as the case would be mooted as soon as
The permit is canceled.

None of this deals with the long term issues about what is going to
Happen at this site, but as Waterfront was just a tenant leasing the
Property, they don’t have any control over any of those issues in any case.

This is speculation on my part, but it appears that our notice letter,
Along with the tougher requirements of the newly reissued Industrial
Stormwater General Permit (which covers the Waterfront site), convinced
The company that this site is not the right place for their kind of
operation. This is an opinion I wholly agree with, as given the type of
soils on the site and the nature of the shoreline, an operation such as
there would always be causing some kind of damage and having some kind
of stormwater related problems, without spending a lot of money on
improving the site, which they would not be able to afford given the
nature of their business, the current economy and the fact they don’t
own the property and the owner would likely not allow them to do such
improvements.

I applaud all of you, and especially Janet and Bob Hays for your continued
efforts to get the companies and city to listen to your concerns to
improve your community and all the hours and days spent on keeping an
eye on this site and documenting what is going on there. While it has
taken some time to get something accomplished here, I think this is a
great and significant step forward for the lake, slough and the community.

You can feel free to share this information with people if you wish. I
would ask that you not contact the media on this until WAP has the
opportunity to do that. One of the items in the settlement agreement
says if either side is going to do a press release they will provide
Reasonable notice to the other before doing so. I am handling that
currently.

I have calls into the City Manager and Community Development Director
and plan on giving them a brief update on this. I will also be giving
Ecology a heads up.

Let me know if you have any questions.

Regards,

Greg

1) As far as I know, there is no law prohibiting scantily-clad women (or men for that matter) from working in a coffee shop. Nor is there a law that prohibits scantily-dressed people from standing near a coffee shop. How can one be sure the scantily dressed person is a patron or an employee? I know of no “community standard” that addresses this. I wonder if the police have ever been called in response to a law being broken with regard to someone in his/her underwear near this or any other business in Kenmore?
2) There is very little about the 522 Kenmore corridor that resembles a “family neighbourhood;” quite the contrary. To some of us the pubs, dilapidated and strip-mallish appearance of Kenmore is far more disturbing than the girls in this particular coffee shop. There are stunning examples of “ugly” things on 522 that far outweigh any shortcomings (or short skirts) at the coffee stand.
3) If some sort of “community standard” having to do with scantily clad women is the issue here, then spend a few moments at Safeway or a number of other businesses which display provocative literature at every check stand and in their magazine sections. I’m sure we can find a whole subset of Kenmore residents that are offended by this sort of “trash.”

In the interest of full-disclosure I must say this: I have never patronized this particular drive-through coffee stand. It’s not my “cup of tea.” Nevertheless, it is disturbing to me that this coffee stand is the focus of controversy. I can point out any number of businesses here in Kenmore that offend my sense of aesthetics. Believe me, there’s plenty to complain about.

Let’s be honest here: The business community in Kenmore is shrinking, not growing. We’ve already seen the detrimental results of mixing “community standards” with the loss of lots of jobs and tax revenue over the ridiculous controversy surrounding Kenmore Lanes. If Kenmore gets a reputation as the kind of place which is “unfriendly” to business (which I believe it already has), then the economic future of “our fair city” is in jeopardy.

Is this time for my curmudgeon moment?