King County Motion To Intervene in Waste Action Project v. Buckley Recycle Center

1
3
Honorable Ricardo S. Martinez
4 Note on Motion Calendar: July 10, 2020
Without Oral Argument
5
7 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 WASTE ACTION PROJECT, )

)
10 Plaintiff, ) No. C13-01184-RSM
)
11 vs. ) KING COUNTY’S MOTION TO
) REINSTATE THE CASE, GRANT
12 BUCKLEY RECYCLE CENTER, INC., ) LEAVE OF KING COUNTY TO
RONALD SHEAR, RONDA STERLEY and ) INTERVENE, MODIFY CONSENT
13 JEFFREY SPENCER, ) DECREE, AND FOR PERMANENT
) MANDATORY INJUNCTIVE RELIEF
14 Defendants, )
) NOTE ON MOTION CALENDAR:
15 and ) July 10, 2020
)
16 KING COUNTY, a political subdivision of the )
State of Washington, )
17 )
Intervenor. )
18 )
19 Paragraph 10 of the Consent Decree allows for reopening of this case for clarification,
20 modification, and resolution of disputes. Consent Decree Entered May 11, 2017, p. 7, ¶ 10,
21 docket document number 143, Attachment 1, p. 7, ¶ 10. The County’s objective by this motion is
22 to be granted a narrowly focused and limited intervenor status, in order to clarify and correct
23 material deficiencies and inaccuracies in the record before this Court relevant to the facts
KING COUNTY’S MOTION TO REINSTATE THE CASE, GRANT Daniel T. Satterberg, Prosecuting Attorney
LEAVE OF KING COUNTY TO INTERVENE, MODIFY CONSENT CIVIL DIVISION
DECREE, AND FOR PERMANENT MANDATORY INJUNCTIVE W400 King County Courthouse
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Seattle, Washington 98104
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1 underlying BRC’s Auburn illegal operation and longstanding unpermitted status, and to obtain
2 relief necessary for the County to protect the public interest in preventing these defendants from
3 continuing their illegal operation. The county’s public interest is concrete, timely, and legally
4 cognizable under FRCP Rule 24 (b) (2) (B), which provides:
5 Rule 24. Intervention
6 (b) Permissive Intervention.
7 (2) By a Government Officer or Agency. On timely motion, the

court may permit a federal or state governmental officer or agency
8 to intervene if a party's claim or defense is based on:
(A) a statute or executive order administered by the officer or

9
agency; or
10 (B) any regulation, order, requirement, or agreement issued or
made under the statute or executive order.
11
(3) Delay or Prejudice. In exercising its discretion, the court must
12 consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties' rights.
13
FRCP 24 (b)(2) and (3).
14
King County’s motion is not a state court matter.
15
King County, a political subdivision of the State of Washington, by this motion seeks to
16
challenge the validity of certain provisions of this federal court’s Consent Decree. Specific
17
terms of the Decree sanction the indefinite continuation of an illegal operation by the BRC
18
defendants of their materials processing facility in Auburn, King County, Washington, in direct
19
violation of a 2013 Washington State Supreme Court ruling and local land use determinations.
20
See Consent Decree, p. 3, ¶ 4, pp. 4-5, ¶¶ 7c, d, and e, docket document number 143,
21
Attachment 1, p. 3, ¶ 4, pp. 4-5, ¶¶ 7c, d, and e. The only direct course available to King
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1 County to vindicate its public interest is to seek an order from this Court striking the terms of the
2 settlement which allow BRC to illegally continue its operation at Auburn.
3 King County’s public interest in and responsibility for the enforcement of its laws as a
4 political subdivision of the State of Washington require it to intervene in this lawsuit in order to
5 prevent the BRC defendants’ continuing and perpetual illegal operation under the authorization
6 of the consent decree. A state court cannot provide King County with such relief.
7 However, there are additional enforcement responsibilities for which the County must
8 seek assistance from this Court that are based in federal law. For example, the BRC defendants’
9 operation remains illegal in part because it is located within a federal FEMA floodway and these
10 defendants refuse to exhaust their administrative remedies required for FEMA review and
11 approval. See Declaration of Jeanne Stypula In Support of King County’s Motion, p.2, ¶ 2, and
12 Exhibit A thereto, p.2, ¶ 2, Attachment 2, Exhibit A, p. 2,¶ 2. See also, 42 U.S.C. § 4001, subpart
13 (e) (this federal statute declares as its regulatory purpose to encourage local governments [King
14 County] to “constrict the development of land which is exposed to flood damage” by prohibiting
15 development in floodways), See RCW 86.16.020 (“[S]tatewide floodplain management
16 regulation shall be exercised through: (1) Local governments' [King County’s] administration of
17 the national flood insurance program regulation requirements”), and see also, Stephen and
18 Sandra Klineburger v. Washington State Department of Ecology, Respondent, at p. 5, footnote
19 10, 4 Wn. App. 2d, 1077 (2018), No. 76458-6-I, 2018 WL 3853574 (Westlaw citation) (August
20 13, 2018) (“only FEMA . . . can determine that the property is not in the FEMA floodway.”).
21 Without a FEMA remapping of defendants’ property these defendants are generally prohibited
22 from their materials storage and processing operation in the floodway by 42 U.S.C. § 4001,
23 subpart (e) and RCW 86.16.041.
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1 Thus, King County is obligated under federal and state law to enact and enforce
2 concomitant regulations to ensure that the BRC defendants comply with federal FEMA
3 development requirements, prohibitions, and determinations. King County therefore seeks by
4 this motion an order finding the defendants’ operation to have been adjudicated to be located in
5 the FEMA floodway, and enjoining them from further operation in violation of FEMA’s
6 prohibition against unpermitted development and operation in the floodway.
7 King County therefore seeks a modification of this Court’s consent decree that reflects
8 the true facts facing the BRC defendants: (1) that they have long been found to be operating
9 illegally at Auburn; (2) that they have been properly notified they must immediately cease their
10 illegal operations to comply with lawful determinations by state and local law enforcement; (3)
11 these defendants owed plaintiff WAP and this Court an enforceable duty obligating them to
12 disclose the status of the State Supreme Court ruling and the determinations of local land use
13 regulatory authorities demanding cessation of operation at Auburn, and that the BRC defendants
14 have breached that duty; and (4) that relief in the form of issuance by this Court of a permanent
15 mandatory injunction, enforceable with the full force of the federal court, is appropriate.
16 The Consent Decree’s adverse effect upon the County’s regulatory interests should be remedied
by this Court.
17
This Consent Decree settles a dispute under the Clean Water Act (CWA) and other
18
federal law. Should this Court rule in favor of King County on its motion, no adverse effect will
19
result to the resolution of the restoration obligations under the Decree which remedy CWA
20
violations. However, should this Court rule against King County the result would be to foster the
21
continuation of illegal violations of FEMA, a State Supreme Court ruling, and County land use
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1 regulations which bar these defendants from operating an industrial use in an agricultural zone
2 specifically designated to preserve protected local agricultural land.
3 Further, the consent decree contemplates the BRC defendants’ compliance with King
4 County’s land use regulations, which they have not done. For instance, the consent decree
5 requires the defendants to satisfy county land use permit requirements to obtain a new legal site
6 for their future operations in Enumclaw, Washington, and to “employ their best efforts” in doing
7 so. Attachment 1, p.4, ¶ 7c. This provision states, in pertinent part:
8 c. BRC Defendants will employ their best efforts to submit a

complete and adequate application as soon as possible to DDES
9 [King County] for the necessary permits to construct and operate a
replacement facility on a new site, and will otherwise employ their
10 best efforts to obtain the final Occupancy Permit for BRC’s new
site. The date on which King County issues a final Occupancy
11 Permit for BRC’s new site and on which that site is legally
available for full use for BRC’s business shall be referred to herein
12 as the “Occupancy Date”.
13 [Bracketed information and italicized emphasis added.] Id.
14 As of three years after entry of this Consent Decree, the BRC defendants do not have a
15 concrete plan or proposal submitted to King County for its Enumclaw site. See Exhibit A to
16 Declaration of Fereshteh Dehkordi in Support of King County’s Motion (Dehkordi dec.),
17 Attachment 3, Exhibit 1 thereto. However, the Decree appears to contemplate that unless and
18 until a certificate of occupancy is issued for the Enumclaw facility, the illegal Auburn facility is
19 to be allowed to continue to operate. This latter possibility is inimical to applicable King County
20 land use regulations and abrogates the State Supreme Court decision.
21 King County’s regulatory interests have therefore compelled it to seek relief from this
22 Court in the form of a determination that the Consent Decree should be modified to strike any
23 provisions purporting to sanction the defendants’ continuing unlawful operation at Auburn, given
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1 that after three years since this settlement, their defendants’ Enumclaw proposal remains merely
2 “conceptual.”
3 Because the Consent Decree requires that the BRC defendants’ Auburn and Enumclaw
4 operations are compliant with governing land use regulations, and because the Consent Decree
5 envisions clarification and modification, King County presents its motion to this Court in the
6 public interest, clarifying and correcting the dubious factual bases of the Consent Decree, and to
7 remedy any incorrect presumption that the BRC defendants were legally operating at its Auburn
8 location. In the interests of justice, the County further seeks to modify the Consent Decree to
9 direct BRC to immediately cease its illegal operations at Auburn.
10 The Consent Decree as it presently exists violates public policy.
11 A contractor and an owner of property located in Snohomish County, Washington State
12 entered into a verbal agreement (as exists between the BRC defendants) pursuant to which the
13 contractor would provide illegal clearing, grading, and drainage work on the owner’s property, in
14 the case of Evans v. Luster, 84 Wn. App. 447, 928 P.2d 455 (1996). In its review of the facts the
15 Evans court found that,
16 . . . Both parties knew that a permit was required for this

work, but they agreed to do the work without permits,
17 working quickly and secretly to avoid a county stop-work
order. Evans testified that he knew the property had
18 standing water and that a surveying company told him the
property contained wetlands. Evans agreed to pay Mayo
19 either with a lot after the land was subdivided or with
future commissions from the joint venture.
20
Evans v. Luster, 84 Wn. App. 447, at 449. Based upon this finding, the Evans court held, inter
21
alia, that, “[T]he parties entered into the contract intending to avoid county permit requirements;
22
therefore, this contract was illegal and unenforceable.” Id., at page 451.
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1 In the course of holding that the parties’ agreement was illegal and unenforceable, the
2 court’s reasoning made clear the legal principle that agreements to avoid compliance with
3 applicable local environmental and land use codes, especially those which cause environmental
4 degradation, violate public policy and are therefore void:
5 Moreover, depredation of our state’s wetlands necessarily

involves the public interest. The knowing and intentional
6 decision by the landowner and the licensed contractor to
perform the work without a permit while the planning office
7 was unable to respond on land that both knew or should have
known may be subject to state environmental regulation
8 constitutes moral turpitude. Such activities are also criminal.
The courts should not assist parties engaging in this
9 behavior.
10 Evans, supra, at pp. 452-53.
11 King County submits to this Court that the policy interests and judicial reasoning of the
12 Evans court is persuasive. To the extent the Consent Decree purports to authorize continued
13 operation at the BRC Auburn site, it is void as against public policy. Just as in Evans, supra, the
14 BRC defendants’ Auburn operation constitutes criminal misdemeanors each week of operation.
15 See KCC 23.02.030 B, Attachment 4. The Decree should therefore be modified to comport with
16 the ruling of the State Supreme Court, Evans, FEMA, and the King County land use
17 determinations and regulations that have been applied against the BRC defendants’ continued
18 operations at Auburn.
19 The defendants’ operation has been ruled by authorities to be illegal for years.
20 The BRC defendants illegally operate a materials processing facility at Auburn, King
21 County, Washington, which is the subject of this CWA litigation. King County submits to this
22 Court the 2013 ruling of the Washington State Supreme Court that the BRC defendants’
23 operation is illegal. The state’s highest court concluded that, “Shear's use was not established
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1 within the provisions of the King County Code as a lawful preexisting use.” See King County
2 Dep't of Development & Environmental Services v. King County, 177 Wn.2d 636, 648, 305 P.3d
3 240 (2013).
4 Moreover, at pages 647 and 648, the High Court concluded that the BRC defendants
5 could not meet their burden to demonstrate that their operation was ever a lawful preexisting use:
6 when a landowner utilizes unlawful methods to establish a

nonconforming use, that unlawfulness precludes a subsequent
7 finding of a lawful nonconforming use. Because Shear has not
appealed the ruling that permits were required, he cannot meet the
8 required showing that his use lawfully existed.
9 Id., 647-48. The Court’s finding above represents one of the first of numerous findings of bad
10 faith which these defendants have engaged in throughout the history of their illegal operation.
11 Both Shear and Spencer were parties to this Supreme Court litigation, therefore they are bound
12 by it. Attachment 5 is a copy of the state court opinion in its entirety.
13 The high court’s 2013 ruling affirmed a King County Superior Court order that had
14 reversed an administrative land use appeal decision by the King County Office of the Hearing
15 Examiner in favor of BRC. The case was therefore remanded to the Hearing Examiner under the
16 directives of the Superior Court, ordering the BRC defendants to undergo the county Permitting
17 Department’s grading permit review process. Attachment 6 is a copy of the Superior Court
18 order. See Attachment 6, II ORDER, p. 2.
19 On April 14, 2014, the Hearing Examiner issued his Order on Remand, which directed
20 BRC and King County Permitting as follows:
21 If at any point during the process specified herein DPER

[King County] determines that the Appellants have failed to
22 meet a mandatory deadline, the proposal is denied or DPER
formally determines that it has become legally infeasible
23 and such denial or determination is not timely appealed, or
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1 DPER based on reasonable cause concludes that the
Appellants have abandoned their pursuit of required
2 procedures, it may issue to the Appellants a written
notice that any existing materials processing operations
3 are to be terminated on the site within 60 days and
specify the terms for bringing the site into code
4 compliance. Penalties and fines may be assessed 60
days after issuance of such notice if its terms have not
5 been met.
6 (Bold emphasis and bracketed information added.) April 14, 2014 Order on Remand of the King
7 County Hearing Examiner, Permitting Case number E05G0099, page 4, ¶ 4, Attachment 7. The
8 Hearing Examiner’s Order on Remand provided BRC the opportunity to appeal King County’s
9 determination. The Hearing Examiner’s order was independently appealable under
10 Washington’s Land Use Petition Act, RCW 36.70C., et seq. The Examiner’s order was not
11 appealed by the BRC defendants, rendering it a final determination. DeTray v. City of Olympia,
12 121 Wn. App. 777, 792, 90 P.3d 1116 (2004) (An unappealed final agency order renders the
13 issues set forth in the order res judicata and bars further action as a matter of law).
14 Pursuant to the Hearing Examiner’s Order on Remand, King County’s Permitting
15 Division (King County) reviewed BRC defendants’ permit pre-application submittal. On July
16 24, 2014, King County provided the BRC defendants with a written comprehensive review of its
17 submittal. King County’s review concluded that BRC’s operation was infeasible at the Auburn
18 site based upon applicable zoning and land use regulations and underlying policies. King
19 County followed its July 24, 2014 review with a formal notification of infeasibility, which it
20 provided to the BRC defendants on August 1, 2014. Included among a myriad of factual, policy,
21 and code-based considerations weighing against BRC’s operation at Auburn, King County
22 notified the BRC defendants that:
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1 In summary, the current operations being conducted on
this property are not allowed in the A (i.e., Agricultural)
2 zone and could not be modified to make them conform.
In addition to the prohibition on the proposed use in the
3 current zoning code, there are other, considerable
hurdles that would have to be overcome before permits
4
could be approved for any non-agricultural use of the
property. Chief among them would be complying with
5
King County's shoreline and critical areas (wetland,
6 aquatic area and flood hazard) regulations, which also
prohibit the operations currently being conducted on the
7 site. In short, because the use is not allowed, the
Department cannot accept a permit application for this
8 operation.
9 July 24, 2014 Pre-Application Determination of Permitting, attached to August 1, 2014 Letter
10 from King County Permitting to Robert Shear and Lee Spencer, p. 8. Attachment 8, p. 8. The
11 BRC defendants failed to appeal this determination of infeasibility by King County, rendering its
12 determinations final. See Attachment 7, p. 4, ¶ 4.
13 The BRC defendants have continually violated their obligations under this Court’s Consent
Decree, while blatantly ignoring the rulings of the State Supreme Court and King County.
14
The Examiner’s unappealed Order on Remand directed the BRC defendants to terminate
15
its operation at its Auburn facility by no later than 60 days following King County’s August 1,
16
2014 notification of its determination of infeasibility to the BRC defendants (which also was not
17
appealed). BRC not only has defied lawful orders from government authorities to cease its
18
operations at Auburn for years and years; relevant to this motion, these defendants also have
19
breached their obligations under this Court’s consent decree in order to do so.
20
BRC defendants were ordered by King County to cease and terminate their operation on
21
December 11, 2017 by Randy Sandin, Permitting’s former Assistant Director. See Attachment 9.
22
King County’s 2017 demand directed the BRC defendants, in pertinent part:
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1 Based upon the above, King County hereby demands that
as an initial step toward full code compliance, BRC
2 immediately cease accepting materials for processing.
Further BRC must prepare and submit a permit application
3 to DPER for bringing the subject property into compliance
with existing zoning and code requirements as an integral
4 part of its plan to cease operations. As stated earlier, the
county is authorized under its code to impose daily civil
5 penalties against you should you be found by DPER in
violation of this demand.
6
Attachment 9, p. 2.
7
The BRC defendants responded to Permitting’s demand that it cease operation by
8
contacting the King County Office of the Prosecuting Attorney. Protracted discussions between
9
the attorneys for the county and the BRC defendants culminated on October 19, 2018, when Jill
10
Higgins Hendrix, a Senior Deputy Prosecuting Attorney notified the BRC defendants of the
11
county’s intent to abate, (i.e. take steps to involuntarily shut down BRC’s Auburn operation).
12
Senior DPA Hendrix’ email states in pertinent part:
13
Justin,
14
BRC’s failure to show King County satisfactory
15 cooperation and progress toward full code compliance by
completely shutting down its operation compels us to send
16 this email. For your review we have attached a copy of our
June 15, 2018 email.
17
Because BRC and the Spencer Estate have persisted in their
failure to submit to DPER a wind down permit application
18
or demonstrate to the county significant cessation of any
kind, the county believes it is highly doubtful this case will
19
resolve without pursuing any options other than to proceed
with planning and executing an abatement of the BRC site
20
and/or litigation.
21 In further support of our belief, our review of your client’s
weekly reports support a conclusion that BRC is far from
22 the goal that we all agreed upon which projected complete
shutdown of BRC at the Auburn site within 18 months.
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1 We further note that to date your client has not taken the
initiative to present a plan for an actual cessation of its
2 illegal conduct and adverse impacts to the environment.
The county will now undertake to assess abatement options
3 and for this reason the county proposes an abatement
inspection be conducted Tuesday, November 6, 2018 at
4 10:00 am. The county has every right to do this under the
law.
5
October 19, 2018 Email from Sr. DPA Jill Higgins Hendrix to BRC Defendants’ Attorney Justin
6
Park, Attachment 10.
7
Permitting’s Director, Jim Chan, has now issued a second cease operation notification on
8
March 27, 2020. See Attachment 11. The County’s 2020 cease operation demand states, in
9
relevant part:
10
As the Director of the King County Department of Local
11 Services, Permitting Division, I send this letter as our
second formal notification to the Buckley Recycling Center
12 located at Auburn, Washington, to immediately cease
accepting and processing any material until such time as a
13 wind down permit has been obtained from Permitting.
14 Attachment 11, p. 1. King County’s directives clearly reiterated to the BRC defendants that their
15 continued operation in Auburn was infeasible. BRC has not shutdown in compliance with the
16 Hearing Examiner’s order on remand or King County’s cease notifications.
17 The facts document that the defendants have never ceased their operations, and indeed,
18 these defendants have continued to increase and expand since 2014. See, e.g., Attachment 8, p.
19 3, where King County’s assessment of BRC operations documented that:
20 . . . One aspect of this operation that is questionable

with respect to whether it meets the zoning code
21 definition of a materials processing facility use is the
fact that huge volumes of material have accumulated on
22 the property over the past ten years and it appears from
recent aerial photos that the stockpiles have nearly
23 doubled over the past two years even though their
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1 project summary seems to suggest the volumes in and
out are comparable. If portions of the material processed
2 on site are proposed to remain on site, the use would not
be allowed. BRC confirmed at the meeting that the
3 stockpiles are dynamic and that the reason the stockpile
areas have expanded are due to expansions to the overall
4 operation.
5 Attachment 8, Question 1: Does the BRC operation meet the definition of a materials
6 processing facility?, p. 10. In the face of representations by these defendants that they are
7 reducing in size and volume, there is contrary evidence that BRC’s operations have not only
8 failed to cease, but that its operations continue to expand.
9 Misleading representations and bad faith conduct by the BRC defendants.
10 On July 27, 2015, defendant Ron Shear, the general manager for BRC, testified before
11 this Court that it was “BRC’s intent to relocate as soon as possible while continuing to operate a
12 viable business and to move off the Spencer (Auburn) site as soon as possible.” (Underlined
13 emphases added.). Declaration of Ron Shear in Response to Plaintiff’s Motion to Enforce
14 Settlement Agreement, p. 2, ¶ 5, ln. 20-22, docket document number 77, Attachment 12. Mr.
15 Shear’s testimony was submitted to this Court over three years after the State Supreme Court
16 ruled that BRC’s operation was illegal, and just over one year after he had been notified by King
17 County that continued operation at Auburn was infeasible, pursuant to the King County Hearing
18 Examiner’s Order on Remand.
19 On November 7, 2016, defendant Shear was entrenched in BRC’s dispute with King
20 County as the BRC defendant’s corporate representative and as an individual defendant/code
21 violator, actively refusing to obey the Hearing Examiner’s Order on Remand and King County’s
22 infeasibility notification, when he testified to this Court, under oath, that:
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1 8. BRC has made every effort to operate in an
environmentally responsible manner. We have resolved
2 complaints from our neighbors, from King County, from the
Clean Air Agency and the Department of Health. For example,
3 attached hereto as Exhibit A is a true and correct copy of a
letter from Environmental Health Services Division of the
4 King County Department of Public Health showing that their
complaints were "no longer viable" and withdrawing its Notice
5 and Order.
(Italicized emphasis added.) See Declaration of Ron Shear in Support of Defendants’ Response
6
to Plaintiff’s Third Motion to Enforce Settlement Agreement and for Sanctions, November 7,
7
2016, docket document number 121, Attachment 13. From King County’s presentation of facts
8
and documentary evidence above, it should be clear and beyond reasonable argument that
9
defendant Shear knew at the time that he gave this sworn statement to this Court that he and the
10
BRC defendants had not resolved their longtime, ongoing dispute with King County, that their
11
operation had been adjudicated to be illegal in binding litigation, and that they had been ordered
12
to shut down sixty days upon receipt of King County’s infeasibility notification but defiantly
13
refused to obey the Examiner’s ruling. See Attachment 5 and Attachment 7.
14
King County contends that Mr. Shear’s testimony was misleading and not in good faith
15
or in the interests of justice. Implicit in Mr. Shear’s testimony is a presumption that the
16
defendants’ operation of a “viable business” meant operation in compliance with applicable
17
laws. There was thus no basis in fact supporting Mr. Shear’s testimony on July 27, 2015 to this
18
Court, under oath, that he actually could continue to operate a “viable business” at Auburn,
19
because one year earlier he had been lawfully ordered to shut down by local authorities three
20
years after being ruled by the state’s highest court to be operating illegally. King County
21
contends to this Court that this constitutes evidence of bad faith conduct on behalf of the BRC
22
defendants.
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1 On September 28, 2015, Mr. Shear also testified under oath to this Court that:
2 Section 3.g of the CR 2A Agreement requires BRC to send

to Plaintiff, copies of “all correspondence with King
3 County DPER and/or the Department of Ecology related to
the BRC site, within seven days of the correspondence, for
4 the duration of the Consent Decree.” The BRC site is
defined, at Section 3.a, as 28225 West Valley Highway
5 North, Auburn, WA 98002, which is the Spencer property.
To the best of my knowledge, there is no such
6 correspondence.
7 (Italicized emphasis added.). Declaration of Ron Shear In Response to Plaintiff’s Motion for
8 Sanctions, p. 3, ¶ 8, docket document number 86, Attachment 14.
9 Similarly, the May 11, 2017 Consent Decree obligated the BRC defendants to provide
10 copies of correspondence with King County to the plaintiffs, stating, in pertinent part:
11 j. The BRC Defendants will forward copies of all written

communications between the BRC Defendants and the
12 Washington Department of Ecology and/or King County
Department of Permitting and Environmental Review
13 related to the Spencer Property to Waste Action Project and
(if desired) to the Estate of Jeffrey Spencer (Attn: Lee
14 Spencer) within seven days of the communication. This
obligation will continue through the termination date of this
15 Consent Decree.
16 Attachment 1 p. 6, ¶ 7.j,.
17 Contemporaneously with this Court’s December 7, 2016 Third Order Enforcing Consent
18 Decree, plaintiff WAP advised King County that it contemplated that BRC would be shutting
19 down at Auburn. On December 8, 2016, Greg Wingard, on behalf of plaintiff WAP, sent an
20 email to Permitting’s Assistant Director Randy Sandin. Mr. Wingard stated:
21 Randy:
You had asked to be kept informed as to the status of our settlement

22
with BRC at their site just north of Auburn. As I previously informed
you efforts at settlement have been delayed by the defendant BRC
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1 refusal to honor the terms of settlement they had agreed to and signed
in 2015.
2
The federal court yesterday ruled against BRC and ordered
3 implementation of our settlement, with some modification to reflect
that time has gone by, meaning some terms of the agreement are
4 obviously passed and not enforceable. In essence the court has
required BRC to comply with the past deadlines within 45 days,
5 and with dates running from the time that the agreement should
have been entered in 2015. This requires a substantial curtailment
6 of operations at the site, and a buffer between surface water
features of established plant species (from seed), that will both
recondition the soil to help return it to an agricultural use, and also
7
reduce loading of pollutants via uptake or treatment in the root
zone.
8
In short BRC attempted to get another four years where they would
9 be able to operate on the Auburn site, including after the date that
their site outside of Enumclaw becomes operational. The court saw
10 through this and refused BRC's position, which was to try and tie
dates of their ramp down of the Auburn site to the date of permitted
11 operations at the Enumclaw site as a starting point. While BRC was
essentially successful in delaying implementation of the dates and
12 terms they agreed to, the court has no (sic) ordered them to meet
those terms on an expedited schedule
13 Took longer than expected, but at last some forward motion, and a
clear indication from the court that BRC's delay and bad faith are
14 no longer being tolerated.
15 Let me know if you have any questions.
16 Also would be interested to know where DPER is in regard to

processing the application from BRC for the Enumclaw site? My
17 understanding at this point is that the county as (sic) made the
determination as to critical areas issues for the site, and that the
18 design documents for the project are or should be submitted to the
agency shortly.
19
Bottom line is we are interested in seeing the operation in Auburn
20 closed and the stockpiled material there removed, returning the land
to its zoned and designated use as protected agricultural land as
21 soon as possible.
Regards,
22
Greg
23
516 Third Avenue
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1 December 8, 2016 email from Greg Wingard, CWA plaintiff, to Randy Sandin, Permitting
2 Assistant Director, Attachment 15. Clearly, the BRC defendants are not cooperating.
3 It is King County’s belief, based upon direct contacts with plaintiff’s attorney Claire
4 Tonry, and plaintiff representative Greg Wingard on May 27, 2020, that the County’s directives
5 demanding BRC’s cessation, its correspondence and documentary materials pertaining to BRC’s
6 Enumclaw permit application and its recently suspended status, have not been provided to
7 plaintiff or its counsel as required under either Section 3.g of the original December 7, 2016
8 Consent Decree, or under paragraph 7.j of the May 11, 2017 Consent Decree. This constitutes a
9 breach of this Court’s Consent Decree by these defendants.
10 2019 Stop Work Order issued against BRC at Enumclaw site upheld by Hearing Examiner.
11 On January 14, 2019, after verifying citizen complaints of illegal grading at the site of the
12 BRC defendants’ prospective new facility located in Enumclaw, King County, Washington, King
13 County issued and posted a Stop Work Order against BRC general managers Ron Shear and
14 Rhonda Shirey. See Attachment 16. The BRC defendants appealed the Stop Work Order to the
15 King County Office of the Hearing Examiner who, in upholding the issuance of the Stop Work
16 Order in favor of King County, found that defendant Ron Shear illegally cleared substantially
17 greater than 7,000 square feet on the Enumclaw property. See, May 26, 2020 Report and
18 Decision of the King County Hearing Examiner, Attachment 17. The defiant determination of
19 these defendants to engage in illegal conduct continues undaunted by the adverse rulings reached
20 after fair adjudication by legal authorities.
21 Further, King County has confirmed that the BRC defendants have not voluntarily
22 provided copies of the Stop Work Order, its correspondence with King County pertaining to its
23
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1 appeal, or the Hearing Examiner’s decision upholding the issuance of the Stop Work Order to
2 plaintiff WAP, which constitutes a separate breach of Paragraph 7.j of the Consent Decree. 1
3 King County offers the 2019 Stop Work Order and Hearing Examiner’s order affirming
4 its issuance as evidence that the BRC defendants’ illegal conduct continues to give rise to citizen
5 complaints, disputes, and litigation with King County’s land use regulatory code enforcement
6 agency.
7 BRC defendants’ 2019 Critical Areas Designation error documents their continued bad faith.
8 King County submits the declaration of Laura Casey, King County Environmental
9 Scientist, as competent evidence that in 2019, these defendants submitted a 2016 Critical Areas
10 Designation (CAD) and supporting map, which failed to designate the actual area required in
11 their 2019 permit application submittal. The 2016 CAD reported no critical areas or wetlands,
12 and had been approved by Ms. Casey, who had been shown a completely different area during
13 her inspection in 2016 than the subject area required to be designated and mapped under the
14 2019 permit application. Exhibit A, Declaration of Laura Casey In Support of King County’s
15 Motion.
16 As part of the 2019 permit review process, a Senior Engineer for the county discovered
17 that the 2016 CAD had been submitted by these defendants. The staff member advised Ms.
18 Casey and explained that the CAD did not cover the area for the 2019 permit application. Ms.
19 Casey advised the Project Manager for the BRC permit application of the omission and
20
21
1
King County’s May 27, 2020 confirmation through its contacts with plaintiff WAP’s
22 representative and its counsel that defendants have not provided copies of correspondence or
documentation pertaining to its Auburn dispute with the County or its Enumclaw facility
23 proposal to the County is hereby certified pursuant to FCRP 11.
516 Third Avenue
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1 discrepancy. See Exhibit A to the Declaration of Laura Casey in Support of King County’s
2 Motion for Order Granting Intervenor Status (Casey dec.), Attachment 18.
3 BRC has abandoned its original proposed plans submitted to King County for the Enumclaw
facility.
4
On February 24, 2020, the representative consultant for the BRC defendants notified
5
King County that the defendants were abandoning their site plan proposed under their original
6
2017 permit application. The defendants submitted a preliminary sketch to King County for
7
what they described in their words as a “concept” for a vastly scaled-down proposal for their
8
material processing facility. See Exhibit A, Dehkordi dec., Attachment 3, Exhibit A thereto.
9
Fereshteh Dehkordi, County Project Manager for the BRC defendants’ permit review
10
process, offers evidence in the form of emails from the Project Manager for Ron Shear that he
11
has abandoned his pending permit proposal and intends to submit a revised permit application.
12
Ms. Dehkordi advised defendant Shear’s Project Manager that new reports and submittals will be
13
necessary to support defendant’s revised proposal. See Exhibit A, Dehkordi dec.
14
A reasonable estimate based upon this new development is that a very substantial period
15
of time is now required for these defendants to come up with the required permit application
16
documents, and for the lengthy permit review process to unfold, with no predictable end to this
17
review timeline or outcome. April 7, 2020 Email from Fereshteh Dehkordi to Enumclaw Recycle
18
Project Manager Jamie Schroeder, Exhibit A, Dehkordi dec.
19
Given that the Consent Decree allows the BRC defendants to illegally operate at Auburn
20
until such time as they obtain a certificate of occupancy at their Enumclaw property facility, it
21
cannot be known if the BRC defendants will ever shut down their illegal operations at Auburn
22
without court enforcement. This very recent development satisfies FRCP 24(b)(2)’s timeliness
23
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1 requirement. Additionally, since these defendants have decided voluntarily to rethink their
2 Enumclaw site proposal, pushing it indefinitely into the future, the policy interest of FRCP
3 24(b)(3) (that no prejudice to the parties result) is also satisfied.
4 BRC’s attorney has stated to King County’s counsel that BRC plans to operate at Auburn
indefinitely.
5
Recent representations to the King County Office of the Prosecuting Attorney by the
6
attorneys for BRC and the Spencer Estate evidence beyond reasonable argument that the BRC
7
defendants refuse to cease its Auburn operations and intend to continue operating indefinitely.
8
See April 27 - 30, 2020 email between BRC attorney Justin Park and Sr. DPAs Hendrix and
9
Hepburn. See, e.g., Attachment 19.
10
An illegal business cannot be an essential business under the Governor’s Emergency Orders.
11
It is axiomatic that a business which knowingly and intentionally operates in defiance of
12
rulings by the State Supreme Court and local land use authorities on a daily basis cannot
13
reasonably be considered ‘essential’ as contemplated under Washington State Governor Inslee’s
14
recent Emergency Orders. This Court can lend invaluable assistance to King County’s and
15
Washington State’s enforcement efforts by granting its motion for intervenor status, authorizing
16
enforcement assistance to implement a permanent mandatory injunction against these
17
defendants, and ordering them to immediately cease their illegal conduct. Should this relief be
18
granted, King County expects that its limited purpose for seeking intervenor status in this lawsuit
19
would be satisfied.
20
To summarize the main arguments supporting King County’s motion to intervene and for
21
injunctive relief:
22
1. BRC represented under oath that the purpose of the CR
23 2A agreement was to facilitate its operation at Auburn
516 Third Avenue
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1 as a viable business. That was not possible because the
State Supreme Court already ruled in 2013 that BRC’s
2 operation was illegal and in 2014 they had been notified
by King County that continued operation at Auburn was
3 infeasible. Thus, the Consent Decree violates public
policy.
4
2. BRC defendants represented to this Court in 2015 under
5
sworn testimony that it had resolved King County’s
6 ‘complaints.’ This was hardly the case given point 1
above.
7
3. BRC obligated itself under the consent decree to
8 provide to plaintiff WAP copies of all correspondence
between BRC and King County Permitting but is in
9 breach of this obligation.
10 4. In 2016 and 2017, BRC obligated itself under the

consent decree to use its best efforts in good faith to
11 obtain the necessary permits and certificate of
occupancy to operate legally at Enumclaw. However,
12
BRC has now completely abandoned its pending permit
13 application, and must now start the process over, with
no guarantee that its next proposal will ever be
14 approved.
15 CONCLUSION
16 Based upon the foregoing, King County requests that this Court grant its motion. The
17 County’s interest in and responsibility for enforcement require a grant by this Court of intervenor
18 status. The evidence is overwhelming that these defendants have defiantly operated illegally in
19 Auburn for years and misrepresented its enforcement history to this Court. In order to remove the
20 protection the Consent Decree affords to the BRC defendants by the endorsement of their
21 continuing and perpetual illegal operation at Auburn, the Decree must be modified and injunctive
22 relief must be granted by this Court. These remedies lie outside the power of a state court.
23
516 Third Avenue
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(206) 477-1120/FAX (206) 296-0191
1 DATED this 18th day of June, 2020.
2 Respectfully submitted,
3 DANIEL T. SATTERBERG
King County Prosecuting Attorney
4
By: s/ Michael D. Hepburn
5 MICHAEL D. HEPBURN, WSBA #14378
Senior Deputy Prosecuting Attorney
6
By: s/ Jill Higgins Hendrix
7 JILL HIGGINS HENDRIX, WSBA #16312
Senior Deputy Prosecuting Attorney
8 Attorneys for Plaintiff
9
DECLARATION OF FILING AND SERVICE
10
I hereby certify that on June 18, 2020, I electronically filed the foregoing document(s)
11 with the Clerk of the Court using the CM/ECF system which will send notification of such filing
to the following:
12
Claire Tonry, WSBA #44497
13 Attorney for Plaintiff
claire@smithandlowney.com
14
Robert West, WSBA#6054
15 Attorney for Estate of Spencer
rwest@westlawoffices.com
16
Justin Park, WSBA#28340
17 Attorney for Defendants
Buckley “Recycle” Center,
18 Ron Shear, and
Rhonda Sterley
19 jpark@romeropark.com
20 I declare under penalty of perjury that the foregoing is true and correct.
21 DATED this 18th day of June, 2020 at Seattle, Washington.
22 By: __________________________
LIAH TRAVIS
23 Paralegal
516 Third Avenue
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King County Motion To Intervene in Waste Action Project v. Buckley Recycle Center

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King County Motion To Intervene in Waste Action Project v. Buckley Recycle Center

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1

7 UNITED STATES DISTRICT COURT

9 WASTE ACTION PROJECT, )

4 cognizable under FRCP Rule 24 (b) (2) (B), which provides:

5 Rule 24. Intervention

6 (b) Permissive Intervention.

7 (2) By a Government Officer or Agency. On timely motion, the

(A) a statute or executive order administered by the officer or

2 settlement which allow BRC to illegally continue its operation at Auburn.

15 development in floodways), See RCW 86.16.020 (“[S]tatewide floodplain management

18 Sandra Klineburger v. Washington State Department of Ecology, Respondent, at p. 5, footnote

23 subpart (e) and RCW 86.16.041.

3 development requirements, prohibitions, and determinations. King County therefore seeks by

6 prohibition against unpermitted development and operation in the floodway.

2 specifically designated to preserve protected local agricultural land.

7 so. Attachment 1, p.4, ¶ 7c. This provision states, in pertinent part:

8 c. BRC Defendants will employ their best efforts to submit a

13 [Bracketed information and italicized emphasis added.] Id.

16 Declaration of Fereshteh Dehkordi in Support of King County’s Motion (Dehkordi dec.),

9 direct BRC to immediately cease its illegal operations at Auburn.

10 The Consent Decree as it presently exists violates public policy.

11 A contractor and an owner of property located in Snohomish County, Washington State

15 Evans court found that,

16 . . . Both parties knew that a permit was required for this

4 degradation, violate public policy and are therefore void:

5 Moreover, depredation of our state’s wetlands necessarily

10 Evans, supra, at pp. 452-53.

6 when a landowner utilizes unlawful methods to establish a

12 by it. Attachment 5 is a copy of the state court opinion in its entirety.

18 order. See Attachment 6, II ORDER, p. 2.

20 BRC and King County Permitting as follows:

21 If at any point during the process specified herein DPER

9 determination. The Hearing Examiner’s order was independently appealable under

14 Pursuant to the Hearing Examiner’s Order on Remand, King County’s Permitting

22 notified the BRC defendants that:

12 determinations final. See Attachment 7, p. 4, ¶ 4.

16 Hearing Examiner’s order on remand or King County’s cease notifications.

19 3, where King County’s assessment of BRC operations documented that:

20 . . . One aspect of this operation that is questionable

8 failed to cease, but that its operations continue to expand.

9 Misleading representations and bad faith conduct by the BRC defendants.

13 emphases added.). Declaration of Ron Shear in Response to Plaintiff’s Motion to Enforce

18 Examiner’s Order on Remand.

20 County as the BRC defendant’s corporate representative and as an individual defendant/code

22 infeasibility notification, when he testified to this Court, under oath, that:

2 Section 3.g of the CR 2A Agreement requires BRC to send

8 Sanctions, p. 3, ¶ 8, docket document number 86, Attachment 14.

11 j. The BRC Defendants will forward copies of all written

20 email to Permitting’s Assistant Director Randy Sandin. Mr. Wingard stated:

You had asked to be kept informed as to the status of our settlement

16 Also would be interested to know where DPER is in regard to

9 breach of this Court’s Consent Decree by these defendants.

20 after fair adjudication by legal authorities.

3 24(b)(3) (that no prejudice to the parties result) is also satisfied.

10 4. In 2016 and 2017, BRC obligated itself under the

21 DATED this 18th day of June, 2020 at Seattle, Washington.

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