122908_BATTLE_POINT_SOCCER_FIELDS_HEX_DECISIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
PlasticFieldsforNever.org BLD14085GAF
From a Mitigated Determination of
Nonsignficance
Introduction
PlasticFieldsforNever.org, by Chris Van Dyk, appealed the Mitigated Determination of
Nonsignficance for the proposal by the Bainbridge Island Metropolitan Park and Recreation
District to resurface two existing soccer fields with artificial turf at Battle Point Park.
Hearing and Party Representatives: An open record public hearing was held on
November 13 and 14, 2008. The applicant was represented by Ryan Vancil, Vancil Law Offices,
Appellant PlasticFieldsforNever.org, a citizen appeal by Chris Van Dyk, Appellant /Intervener,
Bainbridge Island Youth Soccer Club, by Bart Freedman, Jr., Thomas Backer and, Kenneth Gish,
K & L Gates LLP, and the Department of Planning and Community Development by Rod
Kaseguma, Inslee Best.
Post - hearing Motions: A Motion to Stay Issuance of Decision on MDNS Appeal was
filed by the City of Bainbridge Island to allow consolidation of any appeal of the building permit
issuance and the SEPA appeal. The building permit was issued on November 19, 2008, and no
appeal of that decision was filed during the 14 -day appeal period. The following were then filed:
Bainbridge Island Metropolitan Parks and Recreation District's Response; Further Response by
Bainbridge Island Youth Soccer Club; Response by Mr. Van Dyk to Motion to Stay; Notice of
Appeal of the Building Permit Issuance; Motion to Vacate Building Permit as Prematurely Issued
and to Consolidate Ruling with as yet Unissued Ruling on Appeal; Bainbridge Island Metropolitan
Parks and Recreation District's Motion to Dismiss Motions Submitted by the City of Bainbridge
Island and Appellant Chris Van Dyk; Bainbridge Island Youth Soccer Club's Response to
Appellant Chris Van Dyk's Motion to Vacate Building Permit; and City of Bainbridge Island's
Motion to Dismiss Chris Van Dyk's Motion to Vacate Building Permit and to Withdraw Motion to
Stay.
At the time of the hearing on the appeal of the MDNS, the building permit had not been
issued because of a condition of the MDNS requiring further action. In a ruling on the Parks
District's Motion for Partial Summary Judgment, the condition was stricken and the building
permit issued. No appeal was filed within the 14 -day appeal period, presumably rendering moot
the issue of the City's initial motion. On December 4, 2008, Mr. Van Dyk included an appeal of
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the building permit in his response to the Motion to Stay the Decision, which he e- mailed to the
parties and to Diane Sawyer, clerk to the Hearing Examiner. He argued that his appeal, though not
within 14 days, was timely because Section 2.16.130 requires a 21 -day appeal period, and that the
building permit is without force and effect because it was issued prior to resolution of the MDNS
appeal and because the application did not satisfy the requirements of Kitsap County regarding
protection of the aquifer recharge zone.
Appellant made the same assertions in his Motion to Vacate contending that the building
permit was issued prematurely issued without regard for compliance with codes, laws and
ordinances, and issued without regard for resolution of his appeal. Appellant requested that the
ruling on his motion be consolidated with the ruling on his appeal, after further hearing on the
merits of his appeal.
The respondents state, and no evidence was offered to the contrary, that the appeal of the
building permit was not filed with the City Clerk and no filing fee was paid within the appeal
period. As an administrative officer, a hearing examiner has only the authority delegated to the
hearing examiner by the City Council, so the hearing examiner has jurisdiction to review the
issuance of a building permit only when an appeal meeting the requirements of Section 2.16.130 is
filed. Even if the 21 -day appeal period applied in this case so that the appeal was timely, without a
showing that the requirements of the section are met, the hearing examiner has no jurisdiction to
review the permit. The Motion to Vacate must be denied.
The City has moved to withdraw its motion for a stay of the decision on the appeal if the
Motion to Vacate is denied. The request to withdraw the Motion to Stay should be granted.
On December 22, 2008, Appellant filed his Motion to Strike Testimony of Jennifer Sutton,
arguing that her testimony at hearing was substantially misleading as to her knowledge of the
location of the aquifer recharge zone and require a rehearing. A full hearing with opportunity for
cross - examination and argument was held and the record closed. This motion would require
reopening the record but without legal grounds for doing so. This motion should be denied.
Code References: All references to sections in this decision are to the Bainbridge Island
Municipal Code, unless otherwise indicated.
After due consideration of all the evidence in the record, not including the additional facts
provided by appellant in his post- hearing pleadings, the following shall constitute the findings,
conclusions, and decision of the Hearing Examiner on this appeal.
Findings
1. Bainbridge Island Metropolitan Parks and Recreation District, hereafter "Parks District ",
proposed the renovation of two of the ball fields at Battle Point Park located at 11299 Arrow Point
Drive NE with an artificial turf field The installation of the system requires a building permit,
which was applied for on November 28, 2007. Exhibit C 14.
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2. The City of Bainbridge Island ( "City ") issued a Notice of SEPA Mitigated Determination
of Nonsignificance (MDNS) for the proposal on June 14, 2008. PlasticFieldsforNever.org filed an
appeal of the MDNS. After the issuance of the MDNS, a health advisory resulted in considerable
public comment about the safety of artificial field turf. The City considered the public comment
and additional information received and then withdrew its prior MDNS and issued a new MDNS
on July 7, 2008, with additional conditions. PlasticFieldsforNever.org filed an appeal of the
reissued MDNS on August 4, 2008.
3. The new MDNS added conditions that required documentation from an appropriate
reviewing agency demonstrating that the project would have no significant adverse impact on
water quality (Condition No. 8) and that there be annual water quality monitoring for ten years.
Bainbridge Island Youth Soccer Club, hereafter "Soccer Club ", filed a Motion for Partial
Summary Judgment as to MDNS Condition No. 8. The motion was considered at the beginning of
the hearing and granted.
4. Two of the soccer fields at Battle Point Park have deteriorated to the point that they are not
usable during part of the year and are considered a safety hazard. The fields were upgraded in
1983 with sand and tire crumb and have not been renovated since. Pictures of the field show play
in standing water. Exhibit 55. The Soccer Club, with more than 1200 players, experiences a
shortage of safe fields so the teams have had to travel to other cities for home games. The Soccer
Club entered into an agreement with the Parks District to renovate the fields and have raised some
$1.4 million dollars toward the renovation. The Soccer Club researched possible systems,
interviewed park, school and maintenance staff and determined that Field Turf best met the need,
and had the best construction and maintenance record. The vendor was selected through a
non - profit purchasing organization. The Parks District considered natural turf and different
artificial turf products and looked at the studies of the Microsoft and Grass Lawn Park fields from
King County.
5. The Parks District agreed to have the City make the SEPA threshold determination rather
than making the decision itself for greater neutrality and provided the City with comments from
the public it had received and information from public meetings. Testimony of Barrett.
6. The Bainbridge Island School District has just completed the installation of Field Turf at
the high school. The school district issued a determination of nonsignificance for that installation
without any conditions. Exhibit 56.
7. The Field Turf system uses turf made of polyethylene monofilaments fastened to a
polypropylene fabric base, filled with a mixture of silica sand and cryogenic rubber "crumb"
(recycled tires) at a ratio of approximately 70:30 by weight. Exhibit C88. The particles are 1 -2
mm. in diameter, approximately the size of rice grain or smaller.
8. An earlier generation of artificial turf used nylon or nylon blend fibers that contained lead.
The polyethylene fibers in the proposed Field Turf do not.
9. Flame retardants will not be used in the turf to be installed at Battle Point fields. Exhibit
61.
10. Installation of the system involves cutting and filling with existing field material to even
out the field, creating a network of perforated pipes in rock trenches that collect water and take the
water to each side into several nonperforated collection pipes which take the water to a point at the
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north end where it is directed to an existing bioswale and then to a detention pond. A six -inch layer
of base stone is laid down and covered with two inches of top stone. This is rolled for compaction
and then the mat is placed over the base and filled with the sand and tire crumb.
11. The bioswale meets the design requirements to allow water to flow slowly in a relatively
flat, shallow area where the grass can filter the water, and sediment matter, including plastic or
rubber particles, settle out. The swale extends an estimated 600 feet where the typical swale is
around 200 feet long. The current runoff from the fields is fast but the new system will have a peak
rate equal to or less than the existing rate with the significant travel time through the levels of
material. This should reduce the flow to the west, which has caused problems to property owners
in the past. Testimony of Browne.
12. Maintenance of field turf is largely the picking up of leaves and debris, spot cleaning, and
grooming with a towed implement twice a year. No pesticides or algacides are needed. Generally,
the sand /crumb mixture has not needed to be replaced. The Field Turf's representative knew of
only one time in Washington when replacement fill was necessary and that was when it had been
vacuumed out. Testimony of Jones.
13. The life of an artificial field is 8 -12 years. The sand and rubber can be reused and the
carpet disposed of as regular garbage.
14. There are around 3,000 fields with Field Turf in the United States with around 187 in the
state of Washington. This year Field Turf will install approximately 750 fields. King County has
allowed its installation in a park near a wetland and salmon- bearing stream after requiring special
study, and requiring that the fill mixture be at least 30 percent sand.
15. According to the supplier's agent, some 700 -750 fields have been tested for lead. One field
in San Diego, containing one of the earlier generations of materials, was found to have lead in the
fibers. None was found to have lead in the crumb. Testimony of Jones.
16. The City requested consultation with the Kitsap County Health District and the State
Departments of Fish and Wildlife, Ecology, and Health regarding possible environmental impacts
of the proposal as part of the City's threshold determination process.
17. Eva Crim, an epidemiologist with the Kitsap County Health District, responded to the
request for consultation with a review of the literature regarding potential human health and
environmental risks. She concluded that there is a general consensus from the scientific literature
she reviewed that there is acceptable or minimal risk to human health and the environment from
the proposed use of recycled tire crumb. Exhibit C31, p.9.
18. The City reviewed summaries of the scientific literature prepared specifically for the
review of this project by Ms. Crim and Dr. Johns. Exhibit C20. There are also summaries of the
literature for the San Francisco Department of Recreation and Parks by that City's Department of
Public Health. Exhibit 68.
19. Appellant provided the City with critiques of the various studies along with Mr. Van Dyk's
comments to the checklist. C59.
20. To support Appellant's contention that there is not a consensus within the scientific
community regarding the safety of crumb rubber in turf fields, appellant provided an article,
authored by David R. Brown, ScD, from Environment and Human Health, Inc. (EHHI, Exhibit
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C62) that identified deficiencies in all original studies considered in the MDNS, and concluded
that because there are numerous health concerns and data gaps to be filled, it is prudent to conclude
that there will be human exposure to chemicals released during use of the fields. Appellant also
provided an EHHI memo (Exhibit 37) with a letter from Philip Landrigan, MD, addressing his
concern regarding health problems from extreme heat on summer days and MRSA outbreaks
related to skin abrasions, and his concern that chemical hazards of crumb rubber have not been
sufficiently studied. That exhibit also contains what appears to be a news article with a synopsis
of the Zhang and Crain (2008) article regarding hazardous chemicals and their bioaccessibility in
digestive fluids and a research review by Crain and Zhang. They discussed their sampling and
analysis of the infill material from four parks in New York City where they found "worrisome"
levels of zinc and lead, and then looked at studies of leaching of chemicals from tire materials.
Exhibit 39 is a "Fact Sheet: by the Delaware Riverkeeper, summarizing some of the scientific and
other literature and providing a comparison of costs between natural and artificial turf. In Exhibit
40, Dr. Brown states in a memorandum to Mr. Van Dyk that there "cannot be a `scientific
consensus about the safety of artificial turf in the scientific community or anywhere else'" because
of the variability in tire content. Nancy Alderman, president of EHHI, attached the Landrigan
letter mentioned above, a synopsis of the Zhang and Crain (2008) paper documenting a small scale
study to measure the chemicals in turf and their digestibility in synthetic saliva and gastric and
intestinal fluids. Chromium and lead showed bioavailability to humans, suggesting a potential
health risk. The Crain and Zhang research review was included in the collection, as well as a
Wikipedia article and the Norwegian Pollution Control Authority and Norwegian Institute for Air
Research article on their measurement of the concentration of airborne dust and gas compounds in
indoor air from artificial turf. Exhibit 51 is an editorial in the Journal of Exposure Science and
Environmental Epidemiology urging a more thorough understanding of the health risk
implications and environmental impacts from the use of synthetic fields. Exhibit 52 is a collection
of material posted on the SynTurf.org website, including news items about artificial turf fields,
articles, contributions from readers, etc.
21. Several of the studies reviewed by the various reviewers analyzed tire crumb to determine
its chemical composition. The classes of chemicals found in tire crumb include metals such as
zinc, lead, iron, copper, arsenic and cadmium, phthalates, polyaromatic hydrocarbons (PAHs),
polychlorinated biphenyls (PCBs) and volatile organic compounds (VOCs).
22. For some of the analyses of the chemical composition of tire crumb, the crumb was
completely dissolved in strong acids and at high temperatures. See e.g., Crain and Zhang (2007).
Exhibit 37. These do not provide information that can be directly applied to environmental issues
since the crumb would not completely dissolve in environmental conditions and the analyses do
not consider the leaching potential and bioavailability of the chemicals. Testimony of Johns.
Others used methods to represent natural conditions to help understand potential exposure to
humans and the environment.
23. Plesser and Lund (2004) studied the degree to which chemicals were leached from the
crumb and found that only a very low percentage of the total concentration of the chemicals, both
metals and organic compounds, leached out except for zinc at 0.01 percent to 0.31 percent. The
French study looked at water from precipitation that actually had percolated through a synthetic
turf field. Several organic compounds and metals were at detectable levels but lower than drinking
water standards. The Presser and Lund study found that almost all compounds in tire crumb were
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present in leachate at concentrations less than 1 /1000 percent, and zinc, when detected, was below
ambient water concentration.
24. The organic compounds found in the EHHI study were generated at high temperatures for
some time and two of the four are substances that are heavily used in food preservation and
pharmaceuticals. Testimony of Johns. There is no evidence that organic compounds would leach
in field use.
RISK TO HUMAN HEALTH
25. The State of California published an evaluation of the risks to young children who ingest
tire crumb and used an acidic solution to simulate digestion and then analyzed for chemicals that
may have been released by the crumb. OEHHA 2007. The study concluded that for chemicals
classified as carcinogens, the risk is considerably below the de minimis risk level of one in one
million, and for non - carcinogenic chemicals, at or below screening values for a low risk of acute
health effects. The report also estimated risks for 49 chemicals reported in other studies and, using
the highest published concentrations, concluded that the risks were below health effects levels,
except for zinc. The maximum concentration of zinc cited in one report would have exceeded the
health -based screening value but the concentrations in all the others reported in the literature
would not have resulted in an exceedence. As to exposure by ingestion, the OEHHA found no
likely increased risk for children ingesting 10 grams of recycled tire crumb at one time, described
as a worst case scenario. The simulation of gastric digestion of leachate from 10 grams of
shredded tire also did not represent a serious health hazard, so the reviewers concluded that usual
exposure levels are not likely to pose an increased risk. The risk from hand -to -mouth exposure
found no risk and uses of an athletic filed are likely to have lower exposures than in the playground
environment studied. Exposure of rubberized playground surfaces to guinea pigs suggested that
the risk of skin sensitization reactions is likely to be minimal.
26. Weintraub and Lee reviewed studies relevant to assessing the potential for health risk at the
request of the San Francisco Department of Public Health, including the OEHHA assessment,
which they found to be extremely thorough and reliable. Exhibit 68. They found that the
conclusions of the OEHHA assessment that the risks associated with rubberized play surfaces are
likely to be minimal were supported by other local, state and international government agencies.
Exhibit 68.
27. A risk assessment by Moretto (2007) for risks associated with vapor emissions assumed a
high level of exposure from practice and playing in an indoor facility and concluded that the
volatile organic compound and formaldehyde emissions identified present no cause for concern.
28. Environment and Human Health Inc., a non - profit agency, conducted a review of the
literature and laboratory tests regarding the risks of exposure to ground up rubber tires in athletic
fields, playgrounds and gardening mulch. It concluded that there are numerous health concerns
and cautioned that "the status of the information about human exposures to recycled tire crumb
rubber in -fill and gardening mulch is not sufficient to determine the safety of the use of the product
in situations that involve continuous episodes of human exposure." C62, p.15
29. Weintraub and Lee also considered the Environment & Human Health, Inc., report and
concluded that it did not assess the value of the information in the studies that suggest risk and
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uncertainty with respect to likely exposure scenarios, and the reviewers were concerned about bias
in the report. Exhibit 68.
30. A study by the Norwegian Institute of Public Health (2006) investigated the risk to humans
from playing on artificial turf indoors and, using worst case scenarios, concluded that playing on
artificial turf does not cause any increased health risk from inhalation, skin contact or ingestion of
particles.
31. Dr. D. Michael Johns, an aquatic scientist with specialization in the area of natural resource
damage assessment, sediment and water quality studies and human health and ecological risk
assessment, was asked by the Parks District to evaluate the body of literature regarding synthetic
turf fields looking at human health and ecological effects. He found literature showing chemical
analyses of the materials without evaluation as to risk, surveys of the literature, and only three
papers documenting original research done on human health effects. The three were the OEHHA
(2007), Moretto (2007) for the French ALIAPUR and ADEME, and the Norwegian Institute of
Public Health (2006). To determine the risk, a study needs to define the contaminants, the
exposure in terms of time, length, pathway, and the dose in order to determine if the chemical is
going to be toxic at that concentration. While they did this, none of the three studies related to
conditions in the northwest. The French and Norwegian studies involved an indoors situation that
would constitute a hyper- exposure environment. Testimony of Johns.
32. In order to assess the potential health risks that might be associated with playing on
synthetic turf fields on Bainbridge Island and to address deficiencies in the other studies, Dr. Johns
constructed an exposure scenario for a child and a teenager. He assumed that the child uses the turf
field from age 8 through 10, playing 3 hours per day on 261 days per year. The teenager uses the
field from age 11 though 18 playing for 3 hours per day on 261 days per year, a very conservative
exposure model. He looked at absorption through the skin from contact, inhalation of volatile
organic compounds, and ingestion of the crumb particles. All chemicals identified to date in tire
crumb were considered, both carcinogens and non - carcinogens, and at the highest measured
concentrations listed in studies by NIPH (2004), Plesser and Lund (2004) and OHHEA (2007).
33. Dr. Johns concluded that cancer risks from dermal exposure and ingestion were several
orders of magnitudes below the EPA risk threshold of one in one million, and non - cancer risks
were less than 1.0. Risks from inhalation were well below the risk threshold for the child and for
the teenager for all chemicals except benzene and carcinogenic PAHs where the risk is at the risk
threshold. However, these are overestimated as the teenager would be playing in the open air on
Bainbridge Island and the inhalation scenario assumed the concentrations in an enclosed
environment, not an open field, and also assumed concentration of a newly installed indoor turf
field where it was found by Moretto (2007) that the volatile organic compound concentration
released decreased over 70 percent within 28 days after installation. Exhibit C20.
34. A press release by the New Jersey Health and Senior Services Commissioner urged the
federal Consumer Product Safety Commission to investigate the safety of artificial turf based on
testing by the Department of Health and Senior Services that showed lead levels higher than the
state standards. The high lead levels were seen only in artificial turf containing nylon fibers.
Exhibit C33.
35. The Centers for Disease Control issued a CDC Health Advisory on June 18, 2008,
regarding Potential Exposure to Lead in Artificial Turf. Exhibit C55. The advisory was based on
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the New Jersey testing that was limited to nylon or nylon/polyethylene blend fibers and said that
tests of turf with only polyethylene fibers showed very low levels of lead. The CDC made
recommendations for testing turf fields that are worn or weathered, among other
recommendations.
36. Surface, and subsurface, temperatures of synthetic turf can be significantly higher than
natural turf. In eastern United States, very high temperatures have been reported but there is less
concern about the "heat island" effect in the Pacific Northwest because of the more moderate
climate.
37. The EPA recognizes one in one million as the risk threshold and anything below is risk free
or an acceptable risk. Testimony of Dr. Johns.
ENVIRONMENTAL EFFECTS
38. Dr. Johns and Tom Goodlin, a hydrogeologist specializing in the evaluation of
groundwater contaminant fate and transport, reviewed the available scientific literature and
publications to provide an assessment of the potential risks to the environment that may result from
runoff from the synthetic turf fields, both collected storm water and water that migrates through
the soils to the groundwater. Exhibit C32. Dr. Johns observed that the studies surveyed
represented a random selection of tire crumb variety that would be statistically valid. Leachate
tests showed the crumb has the potential to release some chemicals but the concentration of
chemicals released was much lower than the concentration in the crumb itself in all cases. Plesser
and Lund found that only a very low percentage of the concentrations leached out,
except for zinc. Moretto (2007) actually collected water after rainwater percolated through the turf
for 11 months, starting just after installation. The study showed that the very low concentrations
dropped over the testing period. Zinc remained steady but the concentrations were no higher than
the concentrations in the rainwater. Tests of storm water from newly installed synthetic turf fields
in King County at the request of King County for zinc and copper either did not detect the metals at
all or detected them in concentrations considerably below EPA or Washington Department of
Ecology water quality standards.
39. While the majority of rainwater that infiltrates the field will be collected in the drainage
system, some may bypass the system and enter the ground water. The sedimentary strata under
Battle Point Park have been identified as sand, gravel, silt, and peat of the Pre - Vashon deposits. A
U.S. Geological Survey evaluation describes the aquifer under the park as stratified sand and
gravel with good water quality and dissolved constituents that indicate aerobic conditions.
40. Mr. Goodlin concluded that there would be no adverse impact on the aquifer because zinc
and copper are immobile in the environment present at the fields. The soil conditions include
hydroxides in solid form so any dissolved metals that are leached and are not collected by the
storm water system would be sorbed by the hydroxides and would not reach the aquifer. Sorption
would occur with other metals also, such as lead. Testimony of Goodlin.
41. King County required water quality testing of newly installed synthetic turf fields for zinc,
copper, hardness, pH, and toxicity to determine whether stormwater from the fields was toxic to
bio -assay organisms for projects in Redmond at Grass Lawn Park and at the Microsoft campus.
No toxicity was detected to the test organisms. Exhibit C7.
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42. Whether the chemical concentrations identified in run off would be toxic to aquatic
organisms was evaluated in several published studies as well. The studies using collected storm
water runoff reported no toxicity to aquatic species, except for one sample that inhibited algal
growth. In one study, undiluted leachate derived from soaking the crumb in water did result in
toxicity but showed no toxicity in a more standardized test to determine if the toxicity would
persist over time. California surveyed the literature as to using recycled waste tires on
playgrounds. It found that tire crumb applications did not result in leaching of high enough
concentrations to cause toxic effects.
43. A wellhead supplying public drinking water is located in Battle Point Park. The well is 910
ft. deep. The state health department requires annual testing for nitrates, SOC, lead and copper.
44. At Battle Point Park, the point of discharge to the pond that leads to the creek is some 600
ft. from the fields and in that time the runoff would pass through the grassy swale and a soil matrix
that would pick up most of the chemicals that do leach into the stormwater.
45. The Parks District does not intend to lock the fields or post warning signage. Testimony of
Bartlett.
46. Notice of the SEPA threshold determination was posted at City Hall, the Bainbridge Island
Chamber of Commerce and the ferry terminal. It was mailed to required agencies, to everyone on
the Park District comment list, and to all properties within 300 ft. of the park.
47. The State of Washington issues National Pollutant Discharge Elimination Systems
(NPDES) permits, not the City. The City advised the applicant that they would need to obtain a
permit.
48. The Hearing Examiner is authorized by Section 16.04.170 to hear and decide appeals of
SEPA determinations.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter.
2. The SEPA threshold determination made by the City's responsible official in this case, an
MDNS, is to be given substantial weight on review. Section 16.04.170(E). The MDNS is
reviewed under the clearly erroneous standard, Norway Hill Preservation and Protection Assn. v.
King County Council, 87 wn.2d 267, 275, 552 P.2d 674 (1976), so the MDNS must be affirmed
unless the hearing examiner is "left with a definite and firm conviction that a mistake has been
committed." The record must show that "environmental factors were considered in a manner
sufficient to amount to prima facie compliance with the procedural requirements of SEPA" and
that the determination was based on information sufficient to evaluate the environmental impact of
the proposal. Moss v. City of Bellingham, 109 Wn.App. 6, 23 (2001). The burden of proving that
the determination does not satisfy the procedural standards of SEPA and to prove that there will be
a probable significant adverse impact from the proposal, defined as a reasonable likelihood of
more than a moderate adverse impact on environmental quality, WAC 197 -11 -794, is on the
appellant. Each of appellant's grounds for appeal will be examined under these standards.
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3. Appellant claimed that the City failed to notify nearby property owners and users of the
park of the application for the proposal's approval and the MDNS. No facts were adduced
showing that the City failed to give the notice required by SEPA and the City's code.
4. Appellant cited the failure of the City to require an individual NPDES permit, but those
permits under the Clean Water Act are issued by the State of Washington, not the City.
5. Appellant alleged that the Parks District has failed to provide the full public record created
over the time of consideration of the project to the City, constituting a violation of due process
owed to the commenting persons and organizations. The findings show that the Parks District did
forward written comments and the records of the public meetings. No evidence appears in the
record that information was not forwarded nor was there a showing that there is a legal
requirement to do so.
6. Appellant contended that the City failed to require a hazardous waste disposal plan for the
artificial turf at the end of its useful life. As the findings show, the turf would not constitute
hazardous waste. When the field is to be removed, a grading permit will be required and any
conditions regarding disposal of debris will be considered at that time.
7. Appellant claimed error in the failure of the MDNS to require measures to protect against
migration of tire crumb into water bodies. The record shows that the crumb would have to pass
through the mat, sand and other base materials and then, should it be carried further by water, it
would settle out in the 600 ft. bioswale and never reach the detention ponds which intervene
between the bioswale and the stream or Puget Sound.
8. The remaining grounds for appeal are: a) the condition for monitoring for toxicity is
insufficient mitigation; b) the baseline for measurement of toxins should be before crumb rubber
particulate was first introduced at the site; c) failure to consider relevant and best available science,
e.g., the CDC advisory about lead in turf made of nylon or nylon/polyethylene blend fibers; d)
failure to address possible airborne transmission of lead dust; e) failure to consider heat hazards to
human health; and f) failure to require an adequate monitoring plan. The evidence in the record
responds to these specific allegations and the more general contention that there is insufficient
information on which to base an MDNS.
9. The record shows that the planner who made the recommendation to the responsible
official to issue an MDNS had reviewed the comments, had sought consultation from agencies
with expertise and received a report summarizing the scientific literature from one, and had
reviewed some of the studies herself plus the CDC advisory, the Brown article provided by
Appellant, the work by Dr. Johns and Mr. Goodlin commissioned by the Parks District, among
other documents. This demonstrates prima facie compliance and that she was fully advised of
information available and the state of the science.
10. As the findings show, there is very little concern about risk to human health or the
environment chemicals from the polyethylene fibers that are now used. In fact, the findings show
that the CDC advisory addressed a different generation of synthetic fibers and ones that are not
proposed for Battle Point fields. The studies do show myriad chemicals in tire crumb. The studies
that actually assessed the likelihood of risk to human health from different routes of exposure of
the chemicals in the crumb concluded that concentrations would be so low that the risk is
nonexistent or acceptable. The studies and local tests show minimal concentrations of chemicals
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from the tire crumb leaching into the runoff or ground water. The study of toxicity on aquatic
organisms showed little effect. The EHHI paper that points out weaknesses in individual studies
overlooks the larger body of scientific work that does address some of those problems. It
encouraged further study, especially of the longer term effects but would not have taken into
account the work done by Dr. Johns in modeling exposure from regular and long term play on
synthetic fields that still showed minimal risk of health effects.
11. The record did show greatly elevated temperatures or heat islands occurring during
summer months in the eastern U.S. Though temperatures in the northwest are generally lower,
there could be times when the turf is hot. The possibility of elevated temperatures alone is not
sufficient to convince the hearing examiner that the heat island effect would likely amount to more
than a moderate adverse affect on human health and that the threshold determination was clearly
erroneous.
12. The evidence adduced by Appellant does not convince the hearing examiner that the
issuance of the MDNS was in error because the decision maker lacked scientific information or
that the best science shows unacceptable risk to human health or that the proposal is likely to have
more than a moderate adverse affect on the environment.
13. Without a showing of a significant adverse environmental impact, the absence of suggested
mitigating measures such as conditions requiring signage or additional monitoring is not error.
14. The decision to issue an MDNS should be affirmed.
Decision
The Mitigated Determination of Nonsignificance is affirmed, Appellant's Motion to
Vacate Building Permit is denied, City's Motion to Withdraw Motion to Stay the Decision is
granted, and Appellant's Motion to Strike Testimony is denied.
Entered this 23rd day of December 2008.
/s/ Margaret Klockars
Margaret Klockars
City of Bainbridge Island
Hearing Examiner pro tem
Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a Hearing
Examiner decision to consult applicable Code sections and other
appropriate sources, including State law, to determine his/her rights and
responsibilities relative to appeal.
BLD14085GAF
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The decision of the Hearing Examiner is the final decision of the City in this matter. A person with
standing may make appeal of this decision to the Kitsap County Superior Court. To be timely, a
petition for review must be filed within the 21 -day appeal period [see RCW Ch. 36.70].
BLD 14085GAF
Page 12 of 12