ML20054J864
| ML20054J864 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 06/24/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8206300120 | |
| Download: ML20054J864 (231) | |
Text
ORIGINAL NCCI. EAR REGT ATORY COMM~SSICN
.O BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- n the Ma = cf: :
ARIZCNA PUBLIC SERVICE COMPANY, et al. : DOCKET NOS. 50-528 OL
DATE: June 24, 1982 PAGIS: 2223 to 2454 AT: Phoenix, Arizona 712o/
l ALDERSOX r.'y, REPORTING 0 400 Virginia Ave., S.W. Wasning==, C. C. 20024 Teleche=e :
~
(202) 554-2345 O
8206300120 820624 PDR ADOCK 05000528 T PDH
2223
() 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 ---------------------X
() 4 In the Matter of:
- Docket Nos.
- 50-530 OL 6 (Palo Verde Nuclear Generating Station, :
Units 1, 2 and 3) :
7 .
8 ---------------------x 9
Courtroom 1 10 U.S. Courthouse and Federal Building II 230 North First Avenue Phoenix, Arizona 12 I Thursday, June 24, 1982 13 l
\ 14 Evidentiary hearing in the above-entitled matter 15 was resumed, pursuant to recess, at 9:30 a.m.
i 16 BEFORE:
17 DR. ROBERT M. LAZO, Esq., Chairman, Atomic Safety and Licensing Board DR. RICHARD F. COLE, Esq., Member 9
DR. DIXON CALLIHAN, Esq., Member 21 l
l 12 23
(]) 24 l
25 l
(2)
I
l 2224 1
APPEARANCES:
2 ON BEHALF OF THE JOINT APPLICANTS, ARIZONA PUBLIC SERVICE COMPANY, et al.:
3
() 4 ARTHUR C. GEHR, Esq.
CHARLES A. BISCHOFF, Esq.
Snell & Wilmer S
3100 Valley Bank Center Phoenix, Arizona 85073 ON BEHALF OF THE INTERVENOR, PATRICIA LEE HOURIHAN:
7 LYNNE BERNABEI, Esq.
8 Harmon & Weiss 1725 I Street, N.W.
9 Suite 506 .
Washington, D.C. 20006 ON BEHALF OF THE REGULATORY STAFF:
11 LEE SCOTT DEWEY, Esq.
12 EDWIN J. REIS, Esq.
Office of Executive Legal Director 13 Washington, D.C.
( 14 15 .
I 16 l
17 18 19 20 21 22 23
() 24 25
()
2225 O s aznaTn -
2 WITNESSES: DIRECT CBOSS REDIRII.T RECROSS VOIR DIRE 3 JOHN ROBERT McCAIN 4 2226 By Ms. Bernabie 2400 2412 5
By Mr. Gehr 2269 2424 2408 6 2432 7 By Mr. Dewey 2389 2426 8
9 EXHIBITS: IDENTIFIED IN EVIDENCE 10 REGULATORY STAFF II (None.)
12 JOINT APPLICANTS I3 KK 2276 2384 I4 LL 2282 2384 15 MM 2447 2447 t
l 16 JOINT INTERVENORS i
17 XXXV ---
2445 18 XXXVI ---
2446 I'
XXXVII ---
2446 20 XXXIX 2262 (withdrawn) ---
2386 ---
l XL 2386 2388 3
23 0 1<
25 O
2226 l
O F- c- o12 2
(9:35 a.m.)
3 JUDGE LAZO: Would the hearing come to order, O 4 please?
5 Ms. Bernabei, are you ready to continue your 6 examination of Mr. McCain?
7 Yes, I am.
MS. BERNABEI:
8 JUDGE LAZO: Is Mr. McCain ready to proceed?
9 Whereupon, IN -
JOHN ROBERT McCAIN II the witness on the stand at the time of recess, resumed the 12 stand as a witness by Counsel for the Intervenors, and having 13 previously been duly sworn by the C hairman, was examined and 14 testified further as follows:
15 JUDGE LAZO: Good morning, Mr. McCain.
16 THE WITNESS: Good morning.
17 DIRECT EXAMINATION (RESUMED)
II BY MS. BERNABEI:
19 Q Mr. McCain, when we left last night, you were talk-20 ing about uncertainties associated with future water supplies 21 available to the City. Are there any other ones that you 22 failed to mention yesterday?
23 A I believe I failed to mention the potential problems O 24 gesed by groundweeer go11ution end the necessity the cieies 25 have found themselves in -to close down a number of wells.
O
2227 O o ^aa a ta e ne99eaea ia the vest or 1re a r?
i 2 A It is an on-going problem. It has happened in the 3 past. It happened in the very recent past, and we expect it 4 to happen in the future.
S Q Yesterday you said that when you deal with water in 6 Arizona, and without a transcript, I am trying to get it as 7 close possible, you always deal with probabilities and possi-i 8 bilities, very seldom certainties. Can you give us a real-9 world example of what you meant by that?
10 A Well, when you are dealing with water in all of 1I its aspects in Arizona, I suppose the most recent example 12 would be the floods experienced by Maricopa County: City 13 of Pheonix, Mesa, Tempe, and that area as in the 1978 and O 14 through 1980 -- that two-and-a-half year period. To the 15 besrt of my recollection, Phoenix experienced one 100-year 16 flood and another flood of 100 years or fifty years. I am 17 not sure on the name. But in two and a half years, Maricopa 18 County experienced floods which are only supposed to happen 19 once every hundred years. In two and a half years they 20 have experienced perhaps two of them.
21 Uncertainties -- probabilities in flood control 22 are -- well no. Plan 6, which the Governor's Committee 23 recommended to the Secretary as a suitable alternative to O 24 orme oem, which is gere of the Cenere1 Arizone Prosece, 25 includes in Plan 6 d provision for flood control on Salt O
2228 O eaa verae eaa e1 0 1ac1uaee eezety or ae='s worx- sereer 2 of dam's work is repairs or replacement structures along 3 the river. It is repairs to existing structures or replace-4 ment structures along Salt and Verde which will enable the 5 dam to withstand what they call a Noah's Arc flood, and this 6 is a flood that has never occurred and a flood whose pro-7 bability is so low of occurring that they cannot even give it 8 a probability figure. But they recognize that, you know, 9 theae things could happen, and so they are anticipating 10 that probability and plan to construct dams along the Salt II and Verde which will withstand a maximum probable flood.
12 Q Is it fair to say the flooding in the '78 to '80 13 period which you spoke about were unexpected?
O 14 A I would say that they were rather unexpected. It 15 was rather devastating to this valley. All the bridges but 16 two over the Salt were closed down. There was extensive 17 damage along the Salt itself, extensive damage to the air-18 port. There was even a danger if the weather patterns or 19 the storm patterns had moved as anticipated, there was a 20 danger that one of the dams on the Salt River could have 21 been seriously damaged. Fortunately, the storm did not fall 22 on the watershed in the amounts they anticipated possible, 23 and that did not happen. But it was a very serious event
- O 24 to the valley. .
25 You spoke in your testimony about the cities' 0
O
2229 O I coa iaeratioa or usias ere1ueat to sacre e their aome tic 2 water supplies. Are there any potential threats to that use 3 of municipal effluent by municipalities to increase their 4 domestic supply?
5 A Do you mean as opposed to threats or constraints 6 which would cause us --
7 Yes.
Q 8 A --
to use that? Are there threats which would 9 prevent us from using that?
10 Q Yes.
II A Yes, there is.
12 Q And what are those?
13 A Primarily, the uncertainties involved with Indian O I4 water rights.
l 15 Q Can you explain for us how those might impact on 16 reusing effluent or use of effluent to increase municipal 17 water supplies?
38 A The satisfaction of Indian water rights may in part 19 involve the use of municipal effluent. The Secretary or 20 past --
21 MR. GEHR: Objection. I thought we were going to 22 stay away from Indian water rights.
23 JUDGE LAZO: I do not know where we are going with O 24 this. we heve edmieted testimony in this groceeding regerd-25 ing the possibility of exchanges with the Indians, and I f)
V l
l
2230 I think we cannot tell at this point whether or not we are
(])
2 getting into that objectionable area.
3 You may proceed.
O 4 THE WITNESS: The Department of Interior has in 5 the past mentioned that they conceive of municipal effluent 6 as a possible source to satisfy Indian water claims. They 7 base their argument to some extent on the doctrine of Secre-8 tarial of Return Flow, which says that from reclamation pro-9 jects, Secretary has the right to capture unused return flow.
10 Effluent is defined as --
17- MR. GEHR: Objection.
12 THE WITNESS: -- unused return flow.
13 MR. GEHR: I think it is quite clear now from the 14 testimony that he is getting right into the question of 15 whether or not the Secretary should or must recapture return 16 flow, 17 MS. BERNABEI: The question was the impact -- well, 18 he has testified that the municipalities intend to use 19 effluent to increase their domestic water supplies in several 20 different ways. What I am asking him now is, is there a 21 possibility that they may not be able to do that, and I think 22 the question he is answering is, yes, there is a possibility, 23 and trying to explain why that may not be possible. This
(]) 24 directly relates to the supply of water available to the 25 cities.
O
l l
2231 O I JUDGE tAZO: We11, e11 riehe. ne hee enswered the 2
question, and we will overrule the objection.
3 MS. BERNABEI: Was he finished with the answer?
4 JUDGE LAZO: I believe so. Had you finished, 5
Mr. McCain?
0 THE WITNESS: There is one possible threat which I
concerns Indian water rights. It concerns the Central 8
Arizona Project. The Indian CAP subcontracts provide for l
the possibility of an exchange, and that exchange, or any 10 effluent that they get or any water that they get will be II a credit against their winter's rights as and when and 12 finally adjudicated.
I3 MR. DEWEY.: I object to any further --
14 JUDGE LAZO: I think this is repetitious of yester-15 day's testimony.
MR. DEWEY: And also any further discussion with respect to the Indian losses. I think the suit that he is 18 referring to has to do with a State or Federal lawsuit. It 19 is not part of the Pima /Maricopy. It is the Gila lawsuit.
20 But there again we have the same legal principles which this Board ruled upon when it decided not to go into the problems 22 and issues in the Pima /Maricopa lawsuit.
23
///
O 24 25 O
2232 JUDGE LAZO: Let's go on to another subject, Ms.
'( )1 1 2 Bernabei.
3 BY MS. BERNABEI:
4 O Mr. McCain, you've talked about some of the uncer-5 tainties or institutional restraints that could impact on 6 the future water resources of the cities. I'm going to ask 7 you a number of hypotheticals based on some of the facts 8 you and other witnesses in this proceeding have presented.
9
- If the Central Arizona Project did not deliver 10 water to the Salt River Valley on schedule and in the sche-11 duled amounts, could the cities develop a critical need for 12 water in the future?
13 A That's possible.
14 Q In that situation could the cities invoke Section 15 21 of the contract?
16 A If the situation you described came to pass, I 17 believe so.
18 Q If there were a drought --
19 MR. GEHR: Objection and move to strike that an-20 swer. He's expressing a legal opinion as to the right to 21 implement Section 21 of the effluent agreement.
22 MS. BERNABEI: He represents the cities in their 23 dealings with water. He is a staff director and, with Mr.
() 24 Stevens, the main actors in representation of the cities 25 in their water determinations. I believe he can say if there
2233 1 were critical need, as he testified there may be, whether 7l]}
2 or not Section 21 would be invoked. It's a very simple 3 question.
O 4 MR. GEHR: No, it is not a simple question. There 5 are several things that have to be done, including the inter-6 pretation of the term " critical need."
7 MS. BERNABEI: I think that this is a central 8 question in this proceeding.
9 MR. GEHR: This calls for legal conclusions.
10 MS. BERNABEI: It is not a legal conclusion. He 11 is a representative of the cities. What he is answering 12 is that if there were critical need, under certain circum-13 stances the cities would invoke Section 21 of the contract.
-)
(G 14 That is his testimony. And I believe that is one of the 15 central questions in this proceeding. He is a representative 16 of the cities, the supplier of effluent for the Palo Verde 17 plants.
18 MR. GEHR: Are you through now?
19 JUDGE LAZO: Well, he's not a lawyer, Ms. Bernabei.
20 If it involves a legal conclusion, why is he entitled to 21 make that conclusion?
22 MS. BERNABEI: He's not making a legal conclusion.
23 What he is saying is that if there were critical need, as
() 24 he understands the words " critical need," they would invoke
- 25 Section 21 of the contract. That is his opinion as a O
i r
2234
{} 1 representative of the cities.
2 We had Mr. Hulse, who is not an attorney; he is 3 an engineer. We had him speak about Section 21, when it O 4 would be invoked, his predictions in the future about when 5 other people would invoke Section 21. I think we are en-6 titled to have the representative for the cities say under 7 what circumstances would that Section 21 be invoked.
8 Mr. Gehr, I am sure, as the attorney for the Appli-9 cants in this case, is not the only one that talks 10 about that contract. Mr. Hulse was put on the stand to tes-11 tify. He was not an attorney for APS or the Applicant.
12 Therefore, I believe a representative of the cities, who 13 is intimately involved day to day with this, can tell us
() 14 when that provision would be invoked. He is also here on 15 behalf of the Arizona Municipal Water Users Association and 16 in place of Mr. Stevens.
17 JUDGE LAZO: Enough. No, we agree with counsel 18 for Intervenor, Mr. Gehr.
19 MR. GEHR: Counsel for the Intervenor?
20 JUDGE LAZO: Yes.
21 MR. GEHR: May I point out she misstated the tes-22 timony? He said that they could, not that they would. That 23 they could. And that does call for a legal conclusion.
24 That is probably a matter to be adjudicated by the courts.
(])
25 Now, he is not permitted to say that they could invoke .
O v
2235
()
%)
1 JUDGE LAZO: He is entitled to say that in his 2 opinion they could.
3 MR. GEHR: The mere fact that he is a representa-O 4 tive of the Arizona Municipal Water Users Association 5 doesn't qualify him to give legal conclusions.
6 MS. BERNABEI: He is not giving a legal conclusion.
7 JUDGE LAZO: It's his opinion. And Ms. Bernabei 8 is correct, your witness Mr. Hulse made --
9 MR. GEHR: He did not give any legal conclusions.
10 MS. BERNABEI: Yes, he did. In fact, I objected, 11 and I was overruled. He gave conclusions about the circum-12 stances under which he thinks that provision would be in-13 voked. And his opinion was --
( 14 JUDGE LAZO: We have made our ruling, Mr. Gehr.
15 And you objection will be noted in the record.
16 BY MS. BERNABEI: .
17 Q Mr. McCain, if there were a critical need under 18 the conditions I stated in my hypothetical -- the CAP water 19 was not delivered on schedule and in the amounts -- could 20 the cities invoke Section 21 of the contract?
21 MR. GEHR: Objection.
22 JUDGE LAZO: Overruled.
23 THE WITNESS: It is my opinion that the cities
() 24 could invoke Section 21. They certainly would consider it.
25 O
2236
() 1 BY MS. BERNABEI:
2 0 If there were a drought of three to four years 3 on the Salt and Verde Rivers, such that surfaces water sup-4 plies were decreased and the Phoenix gatewater credits were 5 exhausted at a far greater rate than anticipated, could the 6 cities deveJop a critical need for water?
7 A It is possible.
8 Q And under the conditions I just named, would the 9 cities or could the cities invoke Section 21 of the con-10 tract? -
11 A It would be considered.
12 O If the cities were unable to drill new wells be-13 cause of departmental rules and regulations -- and I'm talk-14 ing about the Department of Water Resources -- and if the 15 cities did not find water in drilling some of the wells or 16 in some of their current wells because of hydrogeologic con-17 ditions, and if further the groundwater found when some of 18 these wells were drilled or operated was contaminated, could 19 the cities develop a critical need for water?
20 A It's possible.
21 Q And under the conditions I just named, could the 22 cities invoke Section 21 of the contract?
23 A It would be considered.
() 24 Q Have the cities in the past ever considered invok-25 ing Section 21 of this contract?
O
2237
{}6 1 A I'm not sure whether " considered invoking it" is 2 a proper distinction or definition.
3 We considered the possibility of a necessity to O 4 activate Section 21.
5 Q And can you describe when that happened and the 6 circumstances under which that was considered?
7 A I guess the best is in last December,'81. Mr.
8 Stevens by letter informed Mr. Hulse that the cities possi-9 bly could' activate Section 21 sometime in 1984. Consider-10 ing that at that point in time, December 1981, the cities, 11 particularly the City of Phoenix, were faced with near ex-12 haustion of their gatewater, CAP was not anticipated to ar-
, 13 rive until 1985, and their well capacity was not sufficient, 14 under those circumstances we considered the necessity --
l l 15 the probable necessity -- to activate Ecction 21 at some l
l 16 point in the future.
17 But I don't think we have ever invoked or acti-18 vated Section 21.
19 Q Now, do you have contract or Agreement 13904 20 before you, Mr. McCain?
l 21 A Yes.
l 22 Q If I could refer you in what has been introduced l
l 23 as Joint Applicants' Exhibit H to Section 6.2, are you fami-1 24 liar with that section of the agreement?
({)
25 A That is the option for effluent?
(
l
2238 ,
C I Q Yes, 6.2 '~
2 A I am familiar with is.
3 O And can you describe for us what that section pro-O 4 vides?
5 MR. GEHR: Objection. The document speaks 6
for itself.
7 '
JUDGE LAZO: Sustained.
8 He can read a portion of the section. But I-think 9
it would be improper to ask him to interpret it.
10 "
MS. BERNABEI: Okay. Let me ask a few foundation '
II questions, then. '
12 BY MS. BERNABEI:
13 0 That section provides, does it not, the condi-
O i4 tions under which ehe partic1,an<s may exercise options for.
15 this effluent. Is that correct?
16 -
MR. GEHR: Objection.
17 JUDGE LAZO: He's not a lawyer, Ms."Bernabei.
18 This is a legal agreement. .
19 MS. BERNABEI:
Well, I think he is. going to be -
20 talking about the parties' performance under the contract., ;
21 And I think he does have information on that. And I would 22 just like to set the framework of the contract before the 23 Board because I think it would be somewhat dif ficult to ,
24 t] follow what I'm going to ask him about without --
25 JUDGE LAZO: Well, it.'s an exhibit in this O
r i
2239 proceeding, and we have it before us. It's easy enough
(]) I 2 to read it.
MS. BERNABEI: Okay. And you said he would be
() 3 4 allowed to read it into the record?
i 5 JUDGE LAZO: If you intend to use a portion of
-6 it as a foundation for further testimony, yes.
7 BY MS. BERNABEI:
_ , 3 Q Mr. McCain, could you read Section 6.2 of Appli-9 cant's Exhibit H?
s 's 10 11 12 I'3 14 is i 16 17 18 19 20 21 22 25 25
)
2240 S3,1g 1 A "The participants may exercise all or a portion O'
2 of the Unit 1 option, the Unit 2 option, the Unit 3 option 3 and the Unit 4 option on or before the expiration of the C, 4 Unit 1 option extended term, the rtnit 2 option extended term, 5 the Unit 3 option extended term, and the Unit 4 option 6 extended term respectively, by delivery of written notice to 7 Phoenix of such exercise 12 months in the advance of the 8 effective date of such exercise, but in no event later than 9 December 31 of the year 2000."
10 0 Now, are you familiar with Section 7.1 of the 11 agreement? Could you read for us Section 7.1 in the 12 agreement? ,
() 13 A It is only one page. Section 7.1. "When the 14 participants desire to exercise all or any portion of the 15 Unit 1 option, unit 2 option, Unit 3 option, or Unit 4 option 16 in each or any case pursuant to Section 6.2 hereof, the 17 participants shall promptly execute and deliver to Phoenix 18 one or more completed instruments in the form of Exhibit D, 19 which shall be ef fective as of the ef fective date provided 20 in such instrument, provided for the sale, transfer, delivery 21 and right to use ef fluent in the amounts of the Unit 1 water
(]) 22 requirements, Unit 2 water requirements, Unit 3 water 23 requirements, or Unit 4 water requirements, or so much 24
(]) thereof as the participants have exercised their option 25 therefor," period.
2241 2 1 0 I think that is sufficient, thank you, sir.
2 And could you now read for us Exhibit D to this 3 contract?
4 A Exhibit D, exercise of option to City of Phoenix, 5 251 West Washington, Phoenix, Arizona, attention, water and 6 sewer director.
7 " Pursuant to agreement number" -- how about blank?
8 Q Number blank, that would be fine.
9 A " Pursuant to agreement number blank, option and 10 purchase of effluent dated blank, 1973, (hereinafter the 11 agreement) participants hereby exercise the Unit blank 12 option in the amount of blank acre-feet per year. Whenever O 23 eaa to the extene eff1uene meetine the reauirements oe 14 Appendix E attached to the agreement is availab1e for 15 delivery at the blank Avenue Plant, the effluent required to 16 be delivered in fulf111 ment of this exercise of the Unit 17 blank option shall be delivered at the blank Avenue plant 18 delivery point, unless and until the participants shall
, 19 hereafter otherwise designate in writing. The balance, if i
20 any, of the ef fluent required to be delivered pursuant to 21 this exercise of the Unit blank option shall be delivered Q 22 at the blank avenue plant delivery, point. It is requested 23 that the cities take any and all steps necessary to deliver Q 24 such effluent in accordance with the estimates and schedules 25 to be submitted by participants to W and S director, pursuant
2242 3 1 to Section 7.3 and 9.1 of the agreement. The first of such O 2 eeeimeees of echedu1es she11 be given to ehe w end S director 3 not 1ess than two years prior to the delivery of any ef fluent O 4 to meet the unie weeer requiremente (Inc1uding construction 5 water.) In brackets, (If only a portion of the unit 1, unit 6 2, unit 3, or unit 4 option, as the case may be, is exercised 7 hereunder, participants shall complete the following 8 paragraph: The pdrticipants hereby release, remise and 9 surrender that portion, intheamountofb$ankacre-feet 10 per year of the Unit blank option which has not previously 11 been transferred or released pursuant to section 6.4 of the 12 agreement, and which is not exercised hereby.)' All Q 13 terms used herein which are defined in the agreement shall 14 have the meanings as therein defined," and there is a space 15 for signature of the ANPP project manager as agents for and 16 on behalf of the participant.
i 17 0 Has the Arizona -- has APS or the Salt River 18 Project exercised their options under this contract?
19 A In my opinion, the --
20 MR. GEHR: Objection. Is he giving a legal 21 opinion?
27 MS. BERNABEI: I am asking him whether or not.
23 JUDGE LAZO: It doesn't sound like it, but let 24 us hear the answer.
25 THE WITNESS: In my opinion, by an instrument, a
2243 4 1 letter dated February 3, ANPP has exercised the Unit 1
() 2 option in the amount of 35,000 acre-feet per year.
3 BY MS. BERNABEI:
() 4 Q Have they in fact complied with the requirements 5 of 7.1, that is, of the option of the exercise l'.1 accordance 6 with Exhibit D?
7 MR. GEHR: Objection.
8 JUDGE LAZO: Now, that sounds like you are 9 calling for a legal opinion, have they complief with the 10 section.
11 MS. BERNABEI: What I am asking for is whether 12 or not the exercise is effective, that is what I am asking
({) 13 him for. I can ask it in that form.
14 JUDGE LAZO: That has the same objection.
15 MS. BBRNABEI: Well, I think he said that they 16 have attempted to exercise the option.
17 MR. GEHR: No, he did not say that.
18 MS. BERNABEI: Or exercise the option.
19 BY MS. BERNABEI:
20 0 Well, let me ask you this. Is there any question 21 in your mind whether this exercise of option is effective or 22 not?
[]}
23 MR. GEHR: Objection.
() 24 BY MS. BERNABEI:
25 0 From the viewpoint of the Water Users Associatior ?
l 1
O 2 JUDGE LAZO: It calls for interpretation of the 3 agreement.
4 MS. BERNABEI: What I am asking is whether or 5 not the Association recognizes this option such that they 6 will deliver ef fluent pursuant to the option.
7 MR. GEHR: I have another objection.
8 MS. BERNABEI: That is my question. That is not 9 asking for a legal conclusion. It is asking whether or not 10 the Association which he represents in this proceeding will 11 in f act deliver ef fluent pursuant to Joint Applicants '
12 exercise of their option.
() 13 MR. GEHR: Further objection. Clearly the 14 Water Users Association is not going to deliver anything.
15 MS. BERNABEI: I believe you know what we are 16 talking about. We are talking about the cities.
17 MR. GEHR: The problem is, is that he is being 18 asked to express an opinion whether the exercise of the 19 option complies with the requirements of Section 7.1, and 20 that is a legal conclusion.
21 MS. BERNABEI: I have offered to rephrase my C, 22 question.
13 BY MS. BERNABEI:
24 Q My question is, do the cities consider the
(])
25 exercise of the option by Joint Applicants effective such
2245 6 1 that the cities will deliver ef fluent under the contract, or
) 2 whether or not there is some question about it. That is my 3 question. That is the cities. He is representative of the
() 4 cities.
5 MR. GEHR: Well, a further objection that there 6 is no foundation as to the cities with whom the contract is 7 executed have any position whatsoever, or that this witness 8 has any knowledge of what those cities --
9 MS. BERNABEI: Well, I am asking him whether he 10 knows or not.
11 JUDGE LAZO: Well, that is a little dif ferent.
12 You haven't said that until now.
([) 13 MS. BERNABEI: Well, I will ask him the 14 foundation question.
15 BY MS. BERNABEI:
16 Q Do you know? -
17 JUDGE LAZO: What is the full question? Does 18 he know the cities' position --
19 MS. BERNABEI: Yes.
20 JUDGE LAZO: -- or- the Water Users Association's 21 position?
22 MS. BERNABEI:
(]) Yes.
23 BY MS. BERNABEI:
24 0 Do you know the cities' position, you as
{])
25 representative of the cities that are signatory to this
2246 7 1 contra . do you know the cities' position as to the
(]) 2 ef fectiveness of the option exercised by Joint Applicants?
3 JUDGE LAZO: Pardon me, now we have another
(]) 4 problem, whether it is the six cities who are signatory 5 to the agreement, or the cities that his Association 6 represents.
7 MS. BERNABEI: Well, I think that is really not 8 important, but I will say --
9 BY MS. BERNABEI:
10 Q The five cities that you represent, that are 11 signatory to the contract.
12 A Please repeat the question.
13
[]} Q Dc you have any idea or do you know the position 14 of the cities that you represent who are signatories to this 15 contract, as to the effectiveness of the option exercised by 16 Joint Applicants?
17 A It is my understanding --
18 MR. GEHR: I beg your pardon. He is not 19 answering the question. She is asking the question if he 20 knows, and there may be some voir dire if he says yes.
21 MS. BERNABEI: I think he is trying to explain.
22 THE WITNESS: Would you repeat the question again?
)
23 I am getting somewhat confused myself.
24 BY MS. BERNABEI:
25 Q Have the cities considered or do they have a
2247 8 1 position on the effectiveness of the option exercised by
( 2 Joint Applicants under this contract?
3 MR. GEHR: Objection.
4 JUDGE LAZO: Ask him if he knows whether or not 5 the cities that he represents have a position.
6 BY MS. BERNABEI:
7 O Do you know whether the cities have a position 8 on the effectiveness of the option exercised by Joint -
9 Applicants under this contract?
10 A Do I know if the cities have a position?
11 Q Or have they discussed?
12 A The cities have discussed --
() 13 MR. GEHR: Objection.
14 JUDGE LAZO: First, Mr. McCain, could you say, 15 do.you know? The question is, do you know, and you can say 16 yes, you do, and then explain it, or no, you don't.
17 THE WITNESS: If they have a position?
18 JUDGE LAZO: Do you know whether they have taken 19 a position?
20 THE WITNESS: The cities have not taken a legal 21 position.
22
[]} MR. GEHR: Objection.
23 BY MS. BERNABEI:
24
[]} Q Do you know whether or not they have considered 15 or discussed the effectivenesc of the option exercised by
l 2248 1 Joint Applicants under this contract?
( 2 MR. GEHR: The question is, do you know?
3 BY MS. BERNABEI:
() 4 Q Do you know whether they have discussed it?
5 A Representatives of the cities --
6 MR. GEHR: Objection.
7 JUDGE LAZO: Can you -- can you say yes I do 8 know, and then give your answer, or say no, I don't know, 9 but it really calls for a yes or no answer.
10 THE WITNESS: Well, okay. The water and sewer 11 director of the City of Phoenix --
12 MR. GEHR: Objection.
() 13 MS. BERNABEI: I think he is confused.
14 BY MS. BERNABEI:
15 0 I think what the Chairman is asking pu to do is 16 - say yes, there has been discussion that you know of, or no 17 there has not.
18 A Yes, there has been discussion that I know of.
19 0 And can you tell us about that discussion?
20 MR. GEHR: Voir dire? May I have some voir dire?
21 MS. BERNABEI: I think he is about to explain it,
{) 22 and then I think it is inappropriate in the middle of a 23 question to have voir dire of the witness. We don't know 24 what he is going to say.
[)
15 JUDGE LAZO: I think you had better save it for j
.__ _ _ - __. _ _ _ = . - - _ _ - .
1
\
2249 \
1 cross-examination O 2 BY M.S. BERNABEI:
3 0 Can you explain what you do know about these 4 discussions?
5 F
6 7 ,
8 9
< 10 11 12 lO n 14 1
15 16
! 17 18 19
(
20 21 0 22 24 O
2250 A The February -- I believe it's February 3rd --
{^ l 1 2 letter of 1983 (sic) exercised the Unit 1 option for 35,000 3 acre feet.
O 4 The discussion and the uncertainty among the 5 cities --
6 MR. GEHR: Objection. Now I do want to get into 7 voir dire.
8 MS. BERNABEI: I think he should be allowed to 9 complete his answer. Minimal courtesy to this witness would 10 ensure that Mr. Gehr at least be quiet while he is attempting 11 to finish his answer. I believe the Board has ruled 12 several times on his objections.
13 MR. GEHR: Well, cities don't have a discussion.
() 14 People have discussions.
15 MS. BERNABEI: Well, I think he can bring this 16 out on cross-examination. It's improper to rudely inter-17 rupt the witness with continuous and repetitive objections.
18 MR. GEHR: I resent those comments. I don't think 19 I'm being either rude or anything else. I'm representing 20 my client. I have a right to interrupt when it's 'c lear that 21 the answers are going beyond the bounds of proper evidence.
22 JUDGE LAZO: You may make your objections when 23 you feel they are necessary, Mr. Gebr. We have over-24 ruled this objection. Let the witness answer.
(]
25 THE WITNESS: In more than one meeting which I O
2251
() I have attended in which the city managers of the five cities 2 or their representatives or the water and sewage directors 3 of the five cities or their representatives have discussed 4 the February 3 letter in which the Arizona Nuclear Power 5 Project, ANPP, exercised the Unit 1 option.
6 BY MS. BERNABEI:
7 Q And what was the substance of nature of those dis-8 cussions?
9 MR. GEHR: Objection.
10 JUDGE LAZO: Overruled.
11 THE WITNESS: The substance of the discussions 12 concerned the question as to what date ANPP could expect 13 first delivery of effluent.
) 14 We have not reached a consensus. There is no 15 determination.
. 16 BY MS. BERNABEI:
17 0 And why is there a difference of opinion, in your 18 mind, or a lack of consensus at this point?
19 MR. GEHR: Objection. Now he's being asked to 20 speculate what some other representatives had in their 21 minds.
22 BY MS. BERNABEI:
23 Q Well, I'll ask you what they said in these dis-O 24 cue ioae-25 MR. GEHR: And that is objectionable on the basis O
l l
2252
() 1 of hearsay.
2 JUDGE LAZO: Well, we have already ruled, Mr. Gehr 3 that we don't have a jury to worry about here. So --
4 MR. GEHR: That has no bearing on the question 5 of whether hearsay is proper. Hearsay is improper.
6 JUDGE LAZO: It has a bearing --
7 MR. GEHR: Because we do not have a right to 8 cross-examine, whether we have a jury present or not."
9 JUDGE LAZO: It has a bearing on the weight that to this Board will give to the testimony.
11 MR. GEHR: Now, what is the question that --
12 MS. BERNABEI: I'll ask the question again.
13 BY MS. BERNABEI:
14 Q Mr. McCain, can you tell us, from the discussions, 15 what was or what were the reasons expressed for the lack 16 of agreement?
17 MR. GEHR: Objection.
18 JUDGE LAZO: Overruled. Same reason.
19 THE WITNESS: Section 6.2 of the agreement allows 20 the ANPP to exercise an option which shall be effective one 21 year, and one year from that date.
22 Section 7 says that the option --
23 MR. GEHR: Objection. Is . t clear that this wit-O s_/ 24 ness is not interpreting the contract? Or is he repeating 25 what was discussed at that meeting?
MS. BERNABEI: I think he is responding to the
(~ }
2253
() 1 question, and it's obvious for the record. I would appre-2 ciate it if Mr. Gehr would not continue to object to inter-3 rupt this witness's testimony. He can probe the basis for br, 4 his statements on cross-examination. I think he is being 5 merely obstructive at this point.
6 JUDGE LAZO: It's getting very close to a legal 7 interpretation of these sections, and that's the problem.
8 MS. BERNABEI: I'm asking him about the substance 9 of the discussion. I'm sure if we wanted we could subpoena 10 every single representative of the cities that was involved 11 in these discussions, at least one or two of whom would be 12 lawyers. We could further press our subpoena for Mr. Ste-13 vens, who may have been present at these meetings. I don't 14 know, but I assume he was. And we could ask him about the 15 substance of these meetings. I don't think either one would 16 be useful.
17 He was at the meetings. And he is now giving his 18 understanding of what was stated as the reason for a lack 19 of consensus on the delivery date.
20 JUDGE LAZO: As he began his answer, it appeared 21 that he was going to interpret, give a legal interpretation 22 of these sections that he has read into the record. We have 23 overruled the objection as to hearsay. Therefore, he may j () 24 state what was said at the meeting. But that's different--
25 MS. BERNABEI: I understand that.
2254 1 JUDGE LAZO: -- than giving his interpretation 2 of what the contract says or means.
3 MS, BERNABEI: No, I understand. But I think that 4 is what, in fact, he was answering: what other people said 5 at the meeting, what were the reasons.
6 JUDGE LAZO: It didn't come out that way. So let's 7 do it again.
8 THE WITNESS: I'll try.
9 The topic at the meeting was whether Arizona Nu-10 clear Power Project could expect delivery of effluent one 11 year after the exercise of the option or two years after 12 they turn in an estimate of effluent deliveries. The ques-13 tion was which one. There's confusion.
14 BY MS. BERNABEI:
15 Q And why was there confusion, as expressed by 16 participants in that meeting?
17 MR. GEHR: Objection. Then he is asked to express 18 an opinion as to why participants in the discussion had 19 confusion.
20 MS. BERNABEI: Only if it was expressed. I under-21 stand there may be a hearsay objection, but I believe the 22 Board has overruled that.
23 What I'm trying to get at is what was expressed O 24 av 9erticiee=te ia the meet.ias for their aie sreemeat-25 MR. DEWEY: Your Honor, Staff has a comment here.
l O
l i
2255
(]) 1 We have tried to stay out of it a.nd hoped this would move 2 along. However, I believe you have already stated and ruled s 3 that we were not going to get too deeply into the subject l
4 of negotiations between the -- on this renegotiation at-5 tempt of this contract.
6 MS. BERNABEI: This --
7 MR. DEWEY: Let me finish, please.
8 What is evidently happening here is that during 9 the renegotiation sessiod, this is being used as kind of 10 a tool, as part of the overall negotiations. So I think 11 that we're really getting into an area here of the renego-12 tiation of the contract. And we're spending a lot of time 13 on this. And I'm just not sure it's worth it.
t 14 MS. BERNABEI: My understanding --
1 I 15 MR. DEWEY: You have said that we were going to l
16 stay out of the negotiation area.
l 17 MS. BERNABEI: My understanding is this has abso-18 lutely nothing to do with the renegotiation, absolutely 19 nothing.
20 JUDGE LAZO: All right, you may proceed.
21 MR. DEWEY: I don't think that's right, by the 22 way, Your Honor.
23 THE WITNESS: The question?
() 24 BY MS. BERNABEI:
25 Q What were the reasons expressed at that meeting I
O
2256 for the disagreement?
(]56 1 2 JUDGE COLE: I thought it was " confusion."
3 MS. BERNABEI: Excuse me?
4 JUDGE COLE: I thought the question that was left 5 was what was the reason for the confusion among the parties.
6 MS. BERNABEI: Yes, as expressed by --
7 JUDGE COLE: That's different from " disagreement."
8 MS. BERNABEI: As expressed by the participants 9 in the meeting.
10 JUDGE LAZO: Maybe you should begin by asking, 11 "Did the participants express an opinion?"
12 BY MS. BERNABEI:
13 Q Did the participants express an opinion as to why O' 14 they had confusion or disagreement?
15 A Nobody has really come to the conclusion of how 16 Section 6.2 and 7.1 of Exhibit D interrelated and acted 17 together. I guess, in other words, couldn't understand what 18 the contract was talking about. There's some confusion.
19 Q And the confusion is precisely what? In other 20 words, what were the different points of view?
21 A Confusion is over the date that ANPP can expect 22 first delivery of effluent pursuant to the terms of the con-23 tract.
() 24 25 h
(G
l 2257 I Q Now, Mr. Stevens is the attorney as well as the
!]
2 Executive Director of the Arizona Municipal Water Users ,
3 Association, is that correct?
4 A Yes.
5 0 And he has informed the Board of renegotiations 6 about the contract and certain other matters about this con-7 tract, is that correct?
8 A He informed the Board that the contract was being 9 renegotiated.
10 0 And if you know, the reason he did not want to II appear here today to testify was because he was an attorney 12 for the Association, is that correct?
13 A That is my understanding.
I4 MR. GEHR: Objection.
15 JUDGE LAZO: What is the objection, Mr. Gehr?
16 MR. GEHR: There has been no foundation on that I7 basis on which Mr. Stevens decided he did not want to be II present.
19 JUDGE LAZO: That is correct.
20 MR. GEHR: And he should not be asked that.
21 MS. BERNABEI: Essentially, I am trying to under-22 stand why Mr. McCain is here to testify, not Mr. Stevens.
23 JUDGE LAZO: Well, does Mr. McCain know why he is O
Q 24 here instead of Mr. Stevens?
///
o g
l 2258 1 MS. BERNABEI:
2 O Mr. McCain, why are you here to testify about these 3 matters instead of Mr. Stevens?
O 4 MR. GEHR: May I interrupt?
5 Mr. McCain is here because he was subpoenaed to be 6 here. The subpoena was issued to Mr. McCain.
7 MS. BERNABEI: Mr. Stevens has stated on the record 8 that he did not want to respond to a subpoena, and I guess 9 that what I am trying to get at --
10 JUDGE LAZO: I do not know that that is on the re-II cord, Ms. Bernabei.
12 MR. GEHR: Well, in any case, I do not see what the 13 relevance of this whole matter is. Mr. McCain is here in I4 response to a subpoena.
15 JUDGE LAZO: We are going to sustain the objection, 16 Ms. Bernabei. It does not appear to be very relevant.
17 MS. BERNABEI: It is not extremely relevant. I 18 was just trying to get out exactly while Mr. McCain was 39 willing to respond to subpoena and Mr. Stevens did not want 20 to be subpoenaed.
21 JUDGE'LAZO: Not relevant.
22 MS. BERNABEI: Fine.
23 BY MS. BERNABEI:
24 Mr. McCain, you testified that you were one of the Q
25 architects, at least in part, of the Groundwater Code, is that O
2259
() I correct?
2 MR. GEHR: Objection. The record speaks for it-3 self. I do not remember that he said he was an architect of O 4 the Code. It is clear from the record, I acknowledge, that 5 Mr. McCain participated in the drafting of the Code.
6 JUDGE LAZO: All right. We will accept that.
7 BY MS. BERNABEI:
8 Did you have a key role in drafting the Groundwater Q
9 Code, Mr. McCain?
10 A I participated in drafting the Code into legis-II lative language.
12 Q Now, there is in Arizona and there is contained in 13 the Groundwater Code a provision about exempt wells, is that I4 correct?
15 A Yes.
16 0 What is an exempt well?
17 A An exempt well is a well whose pumping capacity is 38 35 gallons per minute or less and which is used for domestic 19 purposes or for the non-commercial irrigation of not more 20 than two acres of land.
21 And what purposes may an exempt well be used for?
Q 22 MR. GEHR: Objection. This seems totally irrele-23 vant.
() 24 MS. BERNABEI: Well, I think this will -- it has 25 to do with certain wells in question of which I believe this O
2260 I witness has knowledge or information. Essentially, I am 2 going to ask him to interpret something which he will be able 3 to do, I believe.
O 4 JUDGE IAZO: Is it going to be a legal interpreta-5 tion, Ms. Bernabei?
6 MS. BERNABEI: No, it will not. I believe it is 7 an intepretation about what an exempt well and what uses 8 it may be put to. That is what I am asking him.
9 MR. GEHR: Is this an interpretation of the sta-10 tute?
II MS. BERNABEI: It is not an interpretation of the 12 statute. I am asking him as one of the people with a key I3 role in drafting the Groundwater Code, from his knowledge of I4 the legislature, his knowledge of how the Code was drafted, 15 what an exempt well is. -
16 JUDGE LAZO: Well, he has given his definition of 17 an exempt well.
II BY MS. BERNABEI:
19 0 How did you reach that conclusion? Just to make 20 sure that we understand, how did you reach that conclusion, 21 Mr. McCain?
22 A I believe that I recited verbatim the definition 23 that occurs in the Code.
24 Q What is your understanding from your work on the 25 Groundwater Code of the purposes to which water from an
- O
2261 1 exempt well may be used?
2 MR. GEHR: Objection. I do not know what the 3 relevance of an exempt well is still.
O 4 MS. BERNABEI: I think it will become relevant in 5 a few minutes.
6 JUDGE LAZO: Ms. Bernabei has said that she is 7 going to link it. Let us proceed.
8 Repeat the question, please.
9 BY MS. BERNABEI:
10 0 What are the purposes to which water from an exempt 11 well may be used?
l 12 A Domestic and non-commercial irrigation of not more 13 than two acres of land.
14 O May it be used for industrial purposes?
15 MR. GEHR: Objection.
16 MS. BERNABEI:
- This is the last question --
17 MR. GEHR: That is irrelevant whether it is the I8 first or last.
19 JUDGE LAZO: He said it was for non-commercial 20 irrigation of two acres or less, and what did you say, indus-21 trial?
22 MS. BERNABIE: Does that include in any sense 23 industrial users? I just wanted to make sure what we are 24 talking about here.
25 JUDGE LAZO: He may answer.
O
2262 Q 1 THE WITNESS: In my opinion, industrial is not in-2 cluded in the definition of exempt well.
3 MS. BERNABEI: Are we on XXXVII or XXXVIII?
O 4 JUDGE COLE: No, I think we are on XXXIX.
5 MS. BERNABEI: Oh, goodrese.
6 (Pause.)
7 (The document referred to was 8
marked Joint Intervenor's Ex-9 hibit XXXIX for identification.)
10 BY MS. BERNABEI:
II Q Mr. McCain, I have just handed you what has been 12 marked as Intervenors' Exhibit 39. I apologize for not hav-13 ing copies for everyone.
14 g yes, 15 Q Do you recognize what those are?
16 JUDGE LAZO: Could we identify it for the record, 17 counselor, please?
MS. BERNABEI: For the record, I have just handed I'
Mr. McCain four computer sheets from the Department of Water 20 Resources issued by them which indicate certain wells or 21 applications for wells from Joint Applicant ANPP.
BY MS. BERNABIE:
23 Q Mr. McCain, could you describe what I have just O 24 handed you merked es Intervenor s xxxIx2 25 A It appears to be a xerox copy of a computer O
2263 O 1 printout, the Arizona Department of Water Resources, entitled 2 Well Registry Report.
3 And is it a report of?
Q 4 A Wells for which applications have been filed for a 5 well-drilling permit.
6 0 What type of wells are we talking about?
7 A On the five pages, exempt wells -- wells represent-8 ing groundwater withdrawal permit.
9 In terms of exempt wells and non-exempt wells, how Q
to many of these are requested on those sheets?
II A I will have to count.
12 (Witness counts items.)
33 There are 48 E-types, exempt wells, and two Q-types.
14 What are Q-types, sir?
Q 15 .
A Those are certified groundwater withdrawal permits.
16 I am sorry, you said there were E-types, which are 0
17 exempt wells, and Q-types?
II A Yes, there is a classification under type that I9 The computer code is "Q." And these are --
stands for Q.
20 somebody from Buckeye and somebody from Paradise Valley.
l 21 They are E-types, exempt wells.
22 These are wells for which Applicants have applied Q
23 for permits, is that correct?
O 24 A I only counted the number of E's. I did not count 25 who the applicants are.
O
2264 O i o Can you note who the eve 11cenes ere eccordine to 2 that computer sheet?
3 (Witness examines document.)
4 A The first page which usually gives -- the first 5 column anyway which usually gives the identification on this 6 one is cut. So I cannot determine.
7 The second page, the applicant for exempt wells 8 appears to be ANPP.
9 The third page, that column is missing, or in-30 complete.
II The fourth page -- the applicants for exempt wells 12 are ANPP, Gavette --
13 JUDGE LAZO: What was the last one?
O 14 THE WITNESS: Gavette, G-A-V-E-T-T-E. I do not 15 really know what that -- I presume that is someone's last 16 name.
17 And the last page -- I cannot give you -- it is II cut too close in part of it. So I do not know what it says II on it.
O BY MS. BERNABEI:
21 Q On the ones that you can read ANPP, do you know who that is?
23 A I believe that to be the Airzona Nuclear Power Project. .
25 As someone familiar with the Groundwater Code, from Q
O
2265 O ' vour 1esistative exeerieace, cea enose we11 ar1111as vermite, 2 if granted, can water from those wells be used by ANPP, the ,
l 3 applicants here, for industrial purposes?
4 MR. GEHR: Is this question related solely to those 5 wells for which he has indicated the ANPP was the applicant?
6 JUDGE LAZO: We would understand so, yes.
7 MS. BERNABEI: Yes.
1 8 THE WITNESS: Repeat the" question, please?
9 BY MS. BERNABEI:
10 Do those exempt wells which have been marked 0
II Intervenor's XXXIX -- if the permits were granted for those 12 wells, would water from those wells be able to be used for 13 industrial use?
O I4 MR. DEWEY: I am going to have to object. This 15 calls for a legal conclusion.
16 MS. BERNABEI: I am not asking for a legal conclu-I7 sion. I am asking him as someone who is familiar with the I8 Groundwater Code, you get a permit from the Department of I9 Water Resources for an exempt well, can you use the water
- 20 from that well for industrial purposes?
l 21 MR. GEHR: He has already answered that question.
22 MR. BERNABEI: Then, I do not think there should 23 be any problem with his answering it again.
r^
b MR. DEWEY: I think that someone from the Depart-ment of Water Resources might be able to answer this
!O i
I
l 2266 I question, but Mr. McCair does not work for the Department of 2 Water Resources.
3 MS. BERNABEI: Mr. McCain knows about it.
O 4 JUDGE LAZO: He has been permitted to answer in 5 this area before. In order to be consistent, I think we 6 should hear his naswer.
7 THE WITNESS: If I may -- repeat your question?
8 Why do you not repeat it once again?
9 BY MS. BERNABEI:
10 0 Indicated in the computer sheets which are marked II as Intervenor's XXXIX, are applications for permits for 12 exempt wells some of which you have said appear to be appli-I3 cations from Joint Applicants, if those applications were to O i4 be granted by the Degartmene of Water Resources, cou1d those IS wells be used for industrial purposes?
16 A If the Department of Water Resources were to grant 17 application for exempt wells to the applicant here, I would I8 presume that it would be in the Department's interpretation 19 that perhaps it could be for industrial purposes. It is my 20 understanding that these applications have not been granted.
21 Is it further your understanding that exempt wells Q
22 cannot be used for industrial purposes?
23 MR. GEHR: Objection. He has answered that ques-24 tion.
MS. BERNABEI: I just want to make sure that the O
i 2267 i
1 record is clear.
2 MR. GEHR: If he has answered the question, the re-3 cord is clear.
O 4 JUDGE LAZO: Let us hear his answer and move onto 5 something else, 6
THE WITNESS: It is my opinion that an exempt well 7
is not to be used for industrial purposes.
8 MS. BERNABIE: I have no further questions, 9
I would move at some later time when we do have 10 more appropriate copies introduction of what has been marked II as Intervenors' Exhibit XXXIX.
12 JUDGE LAZO: Very well, It will be your respon-13 sibility to bring the matter up again when you have copies.
14 MS. BERNABIE: Yes.
IS MR. GEHR: Objection. We -- I asked earlier that 16 there be some link-up to what the relevance of these wells 17 are to this proceeding, and I have not hear any explanation at 18 all.
19 MR. LAZO: Well, why do you not explore that right 20 now.
It is your turn for cross examination.
21 MR. GEHR: Are you through with this witness?
22 MS. BERNABEI: I have already stated I have no 23 Eurther questions.
(]) 24
. MR . GEHR: I beg your pardon.
25 JUDGE LAZO: Should we take a short recess?
O I
i i
2268 I 1
MR. GEHR: Yes, I would like to. '
2 JUDGE LAZO: All right, 15 minutes.
3 (Brief recess.)
O
///
5 l 6 7
- 8 j '
10 l
11 12 13 O i4 15 16 17 i
18 19 l
20 21 22 23 0 2*
25 O
l l
2269 T6,1g 1 JUDGE LAZO: Would the hearing come to order,
() 2 please?
3 CROSS-EXAMINATION l
() 4 BY MR. GEHR:
5 0 Mr. McCain, I would like to try to examina 6 Intervenor's Exhibit number 39 in a little more detail. I 7 am looking -- showing to you and asking you to explain a 8 page of that Exhibit marked page 365, on which you..had 9 identified ANPP as the Applicant.
10 Do you know what the captions and data on this 11 Exhibit mean?
12 A You are referring --
(]) 13 0 Well, let us go across --
14 A Yeah.
15 Q Across the top. It appears there is a township, 16 TWN, RNG I suppose meaning Range, Section SC, and then there 17 is 000 Do you know what QQQ is?
18 MS. BERNABEI: Mr. Gehr, I apologize, because it 19 is our Exhibit, ~ for not having copies at this time, but I 20 believe you will have to explain a little bit, since you and 21 the witness are the only ones that have copies, the copy of r% 22 the Exhibit this time. Could you explain for the record where l (/
23 it is, and perhaps we could understand a little bit?
24 MR. GEHR: Yes.
) I was reading what would_ appear 25 be captions above columns, but I am not sure. I was reading
l 2270 1 2g i f rom lef t to right, the top line, below the words "well 2 registry report." The first column was TWN.
({}
3 BY MR. GEHR:
4 0 Would you interpret that to mean township?
(])
5 A I would interpret that to mean township.
6 Q And in the same line, I mentioned RNG, and that 7 would mean the range?
8 A I would interpret that to mean range.
- 9 Q And SC?
10 A I would interpret that to mean section.
11 Q And below that, then, where it is --
12 and coming down about four lines, the first identification of an application, I believe, there is a letter C, then there
{) 13 14 is a numeral 010. Would that be the township, do you 15 suppose, if you know?
16 A I would presume it would be the township, 17 because of the column dealing with place of use, and the 18 f act that it appears there also, the legal description.
19 Q All right. Now, let us go across the column, 20 and there is a column that says type. I believe you mentioned --
l 21 that is where you mentioned the letter "E" appeared.
22 A E, yes.
23 O And you stated that you thought that was the 24 nature of the application, or the characterization of the 15 application.
l
2271 1 A Of the -- for the type of well.
2 Q And you thought it meant E for exempt?
3 A For exempt.
4 Q After type, it says, in the column or heading, 5 CNCD. Do you know what that means?
6 A No, I do not.
7 Q Then the next column heading is OW. Do you 8 know what that means?
9 A No, I do not.
10 MS. BERNABEI: Mr. Gehr, could you indicate the 11 number of the column or approximately where on the page it 12 appears?
O 23 sa ossa: 1t i enout in the midd1e- Taere i=
l 14 a column identified at first by the column type, which is
! 15 very distinguishable in the Exhibit, because type under which 16 the letter E is listed in all cases, type is spelled out 17 vertically, T on top, Y, P, and then E. And I then proceeded 18 to the next adjoining column, to the left, to the right, I 19 beg your pardon, and then the next adjoining column to the 20 right, and we were then on water, the use, which is the next 21 adjoining column, and underneath water --
22 BY MR. GEHR:
(]
23 Q Do_ you know what water use means?
24 A I know what water use means. I d o not know what 25 the symbols for water use signify or represent on this
2272 4 1 do cument .
2 Under that column, there are a number of zeroes Q
3 or "O"'s. We don't know whether they are a zero or an "O",
4 do we?
5 A I am trying -- sometimes one or the other has a l 6 slash through it to signify. It is not -- cannot be 7 determined from here. I would presume that it does stand 8 for the letter "O".
9 Q But you do not know what the letter "O" signifies?
10 A No. I do not.
11 Q The next column over is a column that is -- shows 12 a caption, WL and US. Do you know what that caption stands
() 13 for?
14 A No, I do not.
15 Q And under that caption, in that column, we see 16 a number of "W"'s, one 0, two "O"s, another W, an R, an R, 17 and a W. Do you know what those letters signify?
18 A No, I do not.
19 Q The next column is date issued. And under that 20 column there are a number of dates. In all but two cases, 21 near the bottom where there are blank for the date. These 22
(]) dates are -- for the first four items, H-3, 03/16/982, is 23 that correct?
() 24 A That is correct.
25 Q Do you know what that means?
l
2273 5 1 A No, I do not.
2 0 would it -- could it mean that the permits were 3 issued on that date?
4 MS. BERNABEI: Objection. The witness has said 5 he doesn't know what it means.
6 JUDGE LAZO: Well, Counsel is entitled to 7 explore that answer, and find out what the witness means by 8 the answer.
9 MS. BERNABEI: He says he doesn't know what 10 something means. Mr. Gehr is --
11 JUDGE LAZO: Well, this is cross-examination.
12 He has the right to ask the question.
() 13 BY MR. GEHR:
14 0 Would yni proceed to answer the question, please?
15 A I don't know exactly what that means. I presume 16 it means that either a permit to drill an _ exempt well was 17 issued upon that date, that is what I would presume.
18 Q Two columns to the right of the date issued 19 column, there is a column that has a caption, I pump CAPAC.
20 What would that designate, in your mind?
21 A Pump I would presume means pump capacity,
() 22 capacity. I would presume the I to stand for irrigation. I 23 do not kncs for sure what the I stands for, however.
({) 24 Q And under that column or heading, there appears 25 in several cases the numeral four, is that correct, and blanks i
1 i -.
6 1 in other cases? 2274 2 A That is correct.
3 Q And do you know what that signifies?
A
\J 4 A I would presume it stands for the pumping 5 capacity, but I do not know exactly.
6 0 Well, does that mean that there is four gallons 7 per minute capacity, do you suppose?
8 A It is possible. I don't know.
9 MR. GEHR: Mr. Chairman, if you please, I renew 10 my objection to the entry into evidence, to the receipt of 11 this Intervenor's Exhibit XXXIX on the grounds that it has 12 not been authenticated, and is not understood, and can't be O 13 understood.
14 MS. BERNABEI: We are going to get a better copy 15 of this, and we will get with a certificate from the 16 Department of Water Resources, which indicates authentication.
17 This is a computer sheet, and a business record of the 18 Department, which I believe gets over the hearsay objection.
19 We will have a certificate attached to it, and it will be a 20 legible unmarked cooy when it arrives. We haven't offered 21 it into evidence precisely for those purposes yet.
22
(]) MR. GEHR: I thought it had been offered.
23 JUDGE LAZO: No, it had not been. offered yet.
(]) 24 You may renew your objection if you so desire after you see 25 the next copy.
l l
l 1
2275 7 1 MR. GEHR: I shall.
O 2 BY MR. GEHR:
3 Q Turning to another subject, Mr. McCain, what is 4 the capacity of the 91st Avenue plant?
5 A At this point in time, the capacity of the 91st 6 Avenue plant is 90 million gallons per day.
7 Q Is the plant capacity currently being enlarged?
8 A Yes, it is.
9 Q To what extent?
10 A It is currently undergoing an enlargement to 11 120 million gallons per capita per day -- 120 million gallons 12 per day.
() 13 Q Do you know what the status of that construction 14 is?
i 15 A I believe it is proceeding on schedule, and 16 should be at that capacity shortly. I am not sure of the 17 completion date.
18 Q Do you think it will be completed by the middle 19 of 1983?
20 A Yes, I do.
21 0 Is the funding for that plant -- has the funding
[]) 22 for the addition been arranged?
23 A To the best of my knowledge, yes.
24
[]} O Do you know of any reason why the construction 25 shouldn't proceed on schedule?
2276 8 1 A No.
2 0 What is the capacity of the 23rd Avenue plant, 3 if you know?
4 A Approximately 40 million gallons per day.
5 0 I don't mean to quarrel with you on that, but I 6 have seen other references in other documents, like the MAG 7 plan and et cetera, where they use the figure, I believe 8 37.5, would that be about correct?
9 A I misspoke, in that sense, I perhaps was 10 anticipating modifications of the plant to bring it up to 11 its design capacity, but its actual production I think is 12 less than 40 million gallons per day, and I believe the .
() 13 figure you mentioned -- it does ring a bell.
. 14 MR. GEHR: Well, maybe this would be an appro-15 priate time to introduce or have an Exhibit marked for 16 identification. At this time, if the Chairman please, I 17 would like to have marked for identification Joint Applicants' 18 Exhibit KK. Is that the correct next one? Exhibit KK is a 19 copy of the Final Environmental Statement, prepared by the 20 Environmental Protection Agency and the Corps of Engineers to 21 support the MAG 208 plan adopted in 1979.
() Il (The document referred to was 23 marked as Joint Applicants' 24
(]) Exhibit No. KK for identifica-25 tion.)
9 1 BY MR. GEHR:
) 2 Q Mr. McCain, are you f amiliar with this document?
3 A I have looked at that document.
() 4 0 very well.
5 A Not in two years, I think it is.
6 Q By this document, I meant Exhibit KK, Joint 7 Applicants Exhibit KK. That is not a question. That is 8 just a statement 9
10 11 12 13
(])
14 15 16 17 18 19 20 21 22 0 .
23
()
25
2278 TJ l MR. GEHR: I beg your pardon. I'm having great
%.)
2 difficulty. Please excuse me for a few minutes, a couple 3 of minute.
O 4 (Pause.)
5 BY MR. GEHR:
6 Q Would you turn to page 2-26 of Exhibit KK -- JJ?
7 It's KK, excuse me.
8 MS. BERNABEI: What is the page again, Mr. Gehr?
9 MR. GEHR: It's 2-26.
10 THE WITNESS: Yes.
Il BY MR. GEHR:
12 Q Addressing your attention to the third paragraph 13 from the top, it states that the 23rd Avenue plant would
() 14 be upgraded to handle flows of 37.2 mgd from portions of 15 Phoenix and Paradise Valley through the year 2000.
16 That would indicate to me, Mr. McCain, that after 17 the upgrade, that the capacity of the plant would be 37.2 18 million gallons per day. Do you interpret it the same way?
19 A According to this paragraph, that is a justifiable 20 interpretation.
Il Q Are you familiar with the -- before we leave these 22 plants, do you know whether or not there is a tie or a con-23 nection between the 23rd Avenue plant and the 91st Avenue
() 24 plant whereby sewage that might be treated at the 23rd Ave-25 nue plant could be transported to the 91st Avenue plant for
2279 I
2() treatment?
2 A Yes, I believe there is such a pipeline, gg 3 Q Are you familiar with the projections which were V
4 reached as part of the MAG or incorporated in the basis for 5 the MAG 208 plan published in 1979?
6 A What projections do you mean?
7 Q Well, all right, would you please turn to page 8 C-1 of Exhibit KK?
9 (Pause.)
10 BY MR. GEHR:
11 Q Do you have that page before you?
12 A Yes, I do.
13
- Q Is there a Table: C-1 on that page?
14 A Yes, there is.
15 0 And does that show the projections for flows from 16 the 23rd and 91st Avenue plants for the period 1980 to 2000 17 in million gallons per day?
l 18 A Yes.
19 Q What is the projection for the years -- would you l 20 read the projections for 91st Avenue by years as shown on 21 that table?
22 A For 91st Avenue, by years, 84.5 mgd; 98.0 mgd, i 23 1983; 1985, 102.9 mgd; 1990, 113.7 mgd; 1195, 124.3 mgd;
- () 24 in the year 2000, 137.0 mgd.
25 Q If we wished to convert these projections from
()
l l
l - -
l 2280
() 1 million gallons per day to acre feet per year, would you 2 agree that a factor of 1.12 multiplied by the number of bil-3 lion gallons per day would produce the quantity of acre feet 4 in thousands?
5 MS. BERNABEI: Objection. It appears to me that 6 he's asking to make calculations, and he probably needs a --
7 MR. GEHR: I am not going to ask him to make a 8 calculation. All I want to do is confirm or affirm that 9 that factor is an appropriate factor, and I will not go any 10 further with it.
11 MS. BERNABEI: Well, there are two things I'd like 12 to note. One, use of this exhibit, there are figures in 13 Joint Applicants' exhibits that are projections which I be-14 lieve might have some relation to these projections. And 15 it appears that it would make more sense to use the projec-16 tions that are already in the Applicants' exhibits. I be-17 lieve they are C and D.
18 Secondly, I would note that there has been a reluc-19 tance on the part of the Board to have witnesses, either 20 technical or otherwise, make calculations during the hear-21 ings. If there are calculations that have to be made, it 22 is probably more appropriate to allow the witness some time 23 to make them. -
() ,
24 JUDGE LAZO: We think your objection may be prema-25 ture. We certainly agree with you that it's improper to
2281
{} 1 ask the, witnesses on the stand to make calculations that 2 someone else could have made during discovery. However, 3 that really isn't the question. Mr. Gehr is simply trying O 4 to find out whether or not Mr. McCain knows the factor to S be used to convert from million gallons per day to acre feet 6 per year.
7 BY MR. GEHR:
8 Q Will you answer the question, please?
9 JUDGE LAZO: Mr. McCain, do you know the factor 10 that --
11 THE WITNESS: I have heard of a number in that 12 range. And I believe that is the correct conversion factor.
13 I sometimes use a different number.
() 14 MR. GEHR: Thank you.
15 BY MR. GEHR:
16 0 Mr. McCain, are you familiar with the most recent 17 update of the MAG 208 plan in draft form? -
18 A I am familiar with the executive summary. I would 19 not say I am familiar with the entire document.
20 MR. GEHR: If the Board please, I'd like to have 21 marked for identification as Joint Applicants' Exhibit LL 22 a document identified as Draft Point Source Plan Update, 23 May 1982, 208 Water Quality Management Program.
() 24 I do not have sufficient copies to distribute at 25 this time. I do have two, one which the witness may use in
1 I
l 2282 cT 1 my questioning. I will furnish copies to the parties and
\/
2 the Board promptly -- like tomorrow.
3 MS. BERNABEI: May other counsel review the pages O 4 that you're going to be talking to the witness about?
5 MR. GEHR: There will be several.
6 (The document referred to was 7 marked for identification as 8 Joint Applicants' Exhibit LL.)
9 MR. DEWEY: Pardon me. Joint Applicants' Exhibit 10 F, which has already been introduced, is a copy of the 208 11 Water Quality Management Program, Draft Point Source Plan 12 Update, May 1982.
13 MR. GEHR: That consists of some excerpts from 14 this plan, from the same document. I desire to refer to 15 a number of pages in this document which really need clarifi-16 cation so that we understand the current MAG 208 plant --
17 which is, incidentally, in a constant state of flux.
18 MS. BERNABEI: Well, I don't believe we have our 19 copy with us here today, since we weren't informed that this 20 was going to be used. So I'd like a chance to review the 21 pages prior to the questioning.
22 Oh, we do. Terrific.
23 (Pr.ase.)
l
() 24 MR. GEHR: I would like to inquire -- I can get copies 25 made over the lunch hour. I'm not particularly anxious to I
2283
{} I break. But this cross-examination with respect to the up-2 dated MAG 208 plan, I think, is of significance to this
- 3 issue. I would like to suggest that we take an early lunch U
4 hour so I can make copy so the Board and counsel for the 5 Staff can follow it more readily.
6 JUDGE LAZO: Do you need an extended lunch hour, 7 Mr. Gehr?
8 MR. GEHR: I think I can get copies through in
~
9 an hour and a half.
10 JUDGE LAZO: Will you then also before doing that 11 -- I think Ms. Bernabei still has a request if you can indi-12 cate the area or what pages you think you will be using.
13 That would assist her.
14 MR. GEHR: Surely, I'll do that right now if you l 15 wish. Pages 1-1 --
16 JUDGE LAZO: Well, I guess we don't have to keep 17 all of us here on the record to accomplish that.
18 MR. GEHR: All right.
19 JUDGE Lt.ZO: We will, then, recess for an hour 20 and a half, which would make it, what, 1:00?
21 MR. GEHR: Yes.
i 22 JUDGE LAZO: Very well.
l l 23 MR. GEHR: In fact, if the witness -- We will
(]) 24 get together at the witness's table so the witness will also 25 know what pages I intend to refer to.
()
l
2284 1 JUDGE LAZO: Excellent idea.
{}
2 MS. BERNABEI: And perhaps with any other exhibits.
3 I don't know if there are any further exhibits Mr. Gehr in-O 4 tends to --
5 MR. GEHR: All right, we'll do the same.
6 JUDGE LAZO: Then we will recess until 1:00. Thank 7 you.
8 (Whereupon, at 11:28 a.m., the hearing recessed, 9 to reconvene at 1:00 p.m. the same day.)
10 11 12 13
() 14 15 16 .
.17 18 19
! 20 21 22 I
23 i 24 C:)
25 l
O
2285
([) 1 AEIEBE22E SggSIgg 2 1:02 P.M.
3 JUDGE LAZO: Will the hearing come to order, 4 please.
5 MR. GEHR: If the Chairman please, may the record 6 show that I have distributed copies of Joint Applicants' i
7 Exhibit LL, which is the MAG 208 Point Sources Plant Update, 8 dated May 1982/
9 JUDGE LAZO: Thank you, sir.
10 CROSS EXAMINATION (Resumed) 11 BY MR. GEHR:
12 Q I believe you stated that you were familiar with 13 the MAG plan issued in 1979. Is this correct?
14 A I bselieve I stated that I did look at that approxi--
15 mately two years ago, yes.
16 Q And is the document that you have before you, Joint 17 Applicants' Exhibit LL, an update of that plan?
18 A Yes, it is.
19 Q And are the reasons for the update explained on l 20 page 1-l?
21 A Yes.
22 Q And those reasons include increased population l
i 23 projections? Is that correct?
() 24 A That is correct.
25 Q Do you know if there are -- I believe this --
l l
I l
2286 1 May I start my question again?
({}
2 I believe it will be shown that this report uses s 3 population projections prepared in 1979. Do you know whe-4 ther more current projections are going to be used in future 5 updates?
6 MS. BERNABEI: Objection. I don't believe it's 7 in evidence what population figures you used. Mr. Gehr has 8 testified that it's '79.
9 BY MR. GEHR:
10 Q Assuming that this document shows that the popula-11 tion projections used for this update were 1979 projections, 12 do you know whether more current projections will be used 13 in a future update?
14 MS. BERNABEI: Objection. I believe the question 15 should be, "Will population figures later than 1979 be 16 used?"
17 MR. GEHR: I think I'm entitled to ask my ques-18 tions.
19 MS. BERNABEI; I don't believe --
20 MR. GEHR: I'm askilng if he knows.
21 MS. BERNABEI: I don't believe there are facts 22 in evidence that demonstrate that 1979 figures were used 23 in this. It is possible they were.
() 24 JUDGE LAZO: Mr. Gehr made it a hypothetical ques-25 tion: " assuming that 1979 figures were used." Or he said:
O
2287
() 1 " assuming that the document shows that 1979 figures were 2 used."
3 Well, we will overrule the objection. You may 4 answer the question, Mr. McCain.
5 THE WITNESS: I would expect that future updates 6 would use the most current population projections availa-7 ble.
8 BY MR. GEHR:
9 Q Do you know whether there are any more current 10 population projections available today than 1979?
11 A If you mean 1980 census by tracts, yes.
12 Currently population projections are being per-13 formed which will distribute expected populations by plan-0 14 ning area after the year 2005 to the year 2035. A consul-15 tant has been hired by MAG expressly to do just that task.
. 16 I would expect those population projections to be used in 17 any future update.
18 Q Do you know how those projections for the period 19 prior to 2005 compare with the 1979 MAG projections used 20 in this document?
21 A You mean the projections that they will use --
22 that they are currently using now? Excuse me, the projec-23 tions that are currently being taken by the consultant?
O 24 0 Yee.
25 A The consultant contract calls for projections from b) m
2288
() I the year 2005 to the year 2035. It is a given that the 2 population projections up to the year 2005 are given. Not 3 3 going to reexamine those. I would presume that they are
}
4 the figures used in this report.
5 Q Now, what I would like to know is what the given 6 projections -- how they compare with, if you know, the 1979 7 MAG planning projections used for this update.
8 MS. BERNABEI: Objection. I'm not sure what the 9 given projections are.
10 MR. GEHR: He just described what they were.
11 MS. BERNABEI: The given projections as described 12 by the witness?
13 MR. GEHR: Yes.
14 MS. BERNABEI: And as they compare to the figures 15 you have pointed out in this report?
16 MR. GEHR: As they compare to the 1979 MAG TPO 17 planning area population projections.
18 THE WITNESS: I presume they are identical.
19 BY MR. GEHR:
20 Q Did I understand that the given projections were 21 basically the 1980 census?
22 A No. I'm sorry if I gave that impression.
23 The population figures I am most familiar with j
() 24 are the MAG TPO numbers. Those population figures are then 25 used by DES and, in a sense, to project population. The O
2289
{} 1 one I'm most familiar with was the population projections i 2 to determine Central Arizona Project allocation. I do under-3 stand that because population projections had to be made O 4 by several state agencies, several individuals, several pri-5 vate entities, that they tried to use a standard set of pop-6 Whether the population projections I am familiar 7 with in terms of Central Arizona Project allocations are 8 identical to the population projections in here, I do not 9 know. However, since they both are based upon MAG TPO, I 10 would presume that if they are not identical, they are 11 pretty close..
12 Q Turning to page 2-1 of Exhibit LL, just to clarify 13 that this document in its updated planning did use what the
( 14 population basis was, would you read the first paragraph 15 on page II-l?
16 A "The 1979 MAG TPO planning area population projec-17 tions for the metropolitan area through the year 2020 are 4
18 shown in Table II-1. However, not all of the planning area 19 will be served by sewer systems and Table II-2 shows the 20 projected sewer area population through the year 2020."
21 Q Would you turn to Figure II-l?
22 JUDGE LAZO: Mr. Gehr, would you repeat that, 23 please?
() 24 MR. GEHR: Figure II-1. It follows Table II-2.
25 O
2290 1 BY MR. GEHR:
2 Q Would you -- This Figure II-l appears to be a 3 map of the Phoenix metropolitan area, and the legend would O 4 indicate the planning boundary. And I would like to focus 5 particularly on the area which is outlined in gray with 6 several zones shown, like "PHl." Is that roughly the 7 boundaries of the City of Phoenix?
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 O 24 25 O
2291 I
I A Or perhaps the --
1 '
2 Q Everywhere you see a "ph" prefix, that area con-3 tained within that grayish line -- is that what you are talk-4 ing about?
5 A Yes, the word " Phoenix" appears just above "PVP."
6 Streets are not marked on this document, but this does appear 7 to outline the exterior boundaries of the corporate limits 8' of the City of Phoenix.
9 Q Very well. Do you know what the PH1 indicates?
10 A Perhaps -- not specifically, but I believe it is 11 a planning region within the City of Phoenix which will in a 12 sense says where the flows from that area are going to go.
13 0 Very well. Perhaps if you would turn back to 14 page 2-1 --
15 (Witness turns to page 2-1.)
16 A The planning areas.
17 Yes, under the caption Sub-Area, does that ex-Q 18 plain what it is?
19 A Sub-areas.
20 The basis for them was apparently -- these sub-Q 21 areas were identified based upon drainage basins just as you 22 expected.
23 A Existing treatment plant service areas and poten-O 24 tiet treetment piene eervice erees.
25 0 Can you describe generally what PH2 area would be?
O
2292 O i Wou1d thee be the eree south of South Mountain 2 2 MS. BERNABIE: Perhaps for the record we should 3
- state that we are back on figure 2.1.
4 MR. GEHR: Yes, thank you.
5 THE WITNESS: Area PH2 would represent the south-6 ern extremity of the City of Phoenix, and that would be the 7
area south of the South Mountains and appears west of Inter-8 state 10 to the Gila River Indian Reservation.
9 BY MR. GEHR:
10 0 Would that fall in the Gila River basin drainage II area, or drainage basin?
j 12 A I would think so. I know that area is in two l - 13 different groundwater active management areas which are based O I4 upon hydrological units, but those are groundwater basin 15 unit.t. I would presume since it is on the south side of the 16 l South Maintains that it would be in Gila River Drainage 17 Basin.
18 0 I notice that there is a sub-area boundary that 19 is irregular that separates PH1 and PH5 from PH3 and PH4.
20 A Yes.
21 Q Would that likely be the Salt River?
22 A Yes.
23 Do you know how MAG prepares its projections of Q
24 l sewage flows, sewage treatment requirements? I am not trying 25 to --
O
2293 O ^ ves- ra e seaere1 sease, estimated eogu1eeson hv 2
estimated so-many-gallons per capita per day sewage flow.
3 That is all about I know on that.
4 Q All right, and is that what is indicated on 5 page II-6?
6 (Witness turns to page II-6.)
7 A Page II-67 8
Q Yes.
9 A Oh, okay, down at the bottom. Yes, that is what 10 it says.
II Q And the following table,II-3 -- excuse me, strike 12 that.
I3 Is it not indicated in that paragraph at the bot-O I4 tom of II-6 that the revised unit flow show the result of more 15 accurate data on flow and number of connections on the vari-16 ous communities? And continuing on page II--9, they go on to I7 explain what the deficiencies were with respect to the 18 original 208 study.
19 A That is what the section of this report, II-6.and 20 II-9 under Projected Flows indicates.
21 Q Do you know whether the original MAG projection, 22 that is, the one made in 1979, has included allowances for 23 conservation or reduced flows resulting from conservation 24 measures?
25 A I know there was a flow program. I do not know l
2294 9
1 whether 1979 projections included a factor for conservation.
({}
2 Q Would you look at the last paragraph on page II-9, 3 and tell me whether the update includes factors for conser-7-
U 4 vation or reduced fIows and what those factors are. ,
5 A This -- reading the last four sentences, it says, 6 "Also included in t!.e flow projections are the effects of 7
the MAG wastewater j! low reduction program. This program 8 calls for a four pe:1 cent reduction of wastewater flow from 9 1980 residents by t?,e year 2000 plus a 15 per cent reduction 10 in flow from new residents after 1980."
11 Q Would you turn to page II-7.
12 (Witness turns to page II-7.)
13 Looking specifically at the sub-areas listed for
() 14 the City of Phoenix, how does the comparison from the origi-15 nal 208 study compare to the 208 update, after allowance for 16 conservation?
17 A According to table 2.3, Unit Flows, the 208 up-I8 date shows the average flow to decrease, it appears five' 19 per cent in the two areas, and to increase by' ten per cent 20 for 30 per cent in one and something less than 30 per cent 21 in another.
22 jff 23 Q 24 25 CE)
. - _. - -- -= __-- _ - - - - .
/
2295 10,1g I Q Can you identify on figure 2-1 where subarca
() 2 P zero is? I was unable to do so, and I don't -- if you
' t 3 know, would you please tell us?
() 4 A P0 does not appear on the map. I wou ld -- I 5 can only guess what it means without an examination to see b if it is explained elsewhere in the document.
7 0 very well. You noticed, I believe, that in two f 8 cases there appeared to be a five percent, I believe you 9 called it reduction?
~
10 A Yes.
11 Q One of those was P-2. Would that be the same as 12 subarea PH-2 shown on figure 2-17 A
(]) 5.3 I would presume so.
14 0 And that we decided was in the Gila River Basin, 15 is that correct?
16 A I said I presume it probably is, because it is
{
17 south of South Mountain.
18 0 Very well. The other instance where there was 19 a -- where you noted the five percent reduction was in l 20 area P-7.
I
'21 A Yes.
() 22 0 can you tell from figure 2-1 whether PH-7 is 13 within or outside of the Salt River Project Reservoir Districh?
l 24 A Not knowing where the boundary is between PH-1
)
25 and PH-7, I can't determine whether PH-7 is partly within the
2296 10,2 1 district. Clearly from the map, at least some of it is 2 outside the reservoir district boundaries, but I do not know - -
3 there appears to be no southern demarcation line, and I
(/ 4 can't tell how f ar it extends.
5 Q There is a designation PVP with an arrow to a 6 little irregular shape marking. Would that be Paradise 7 Valley?
8 A Yes, sir.
9 0 Is Paradise walley within or outside of the 10 boundaries of the Salt River Reservoir District?
11 A Paradise Valley is outside the boundaries of 12 the Salt River --
() 13 O So that it would appear that the boundary is 14 certainly south of that irregular shaped line shown there, 15 is that correct? Generally speaking. I am not asking for 16 a precise --
17 A What irregular shape, sir, the dotted line?
18 0 It is not the panhandle. The opposite of the 19 panhandle of the irregular shape plot marked with the arrow, 20 PVP?
21 A PVP, that is Paradise Valley, the part that is 22
(]) served by the City of Phoenix, I believe, and to the best of 23 my knowledge --
24 0 Yes, but I am asking -- we determined that
[]}
25 Paradise valley was outside of or --
i
2297 3 1 A I was looking at Paradise Valley, not PVP, when
() 2 I said that. I presume PVP is also outside the Salt River 3 Reservoir District boundaries. I am just not sure. I presume-() 4 so.
5 0 Does the Arizona Canal go north or south of 6 Paradise Valley?
7 A It goes south of Paradise Valley.
8 Q And is the Arizona Canal the boundary, the 9 northern boundary of the Salt River Project?
10 A Yes, it is.
11 Q Do you know what the explanation is for the -- I 12 am turning now to drawing your attention to page II-7. Do you
() 13 know what the explanation is for the significantly -- or the 14 difference in per capita usage shown for P-0 and P-1, 130, 15 in contrast to 95, say.for P-7 or P-2?
16 A The difference between P-1 and P-7. P-1 is --
l 17 from this map, appears to be a --
18 Q Proceed. Proceed.
19 A -- part of the City of Phoenix which has been 20 deve loped . Those individual houses, residences, commercial 21 establishments, perhaps do not have a large number of water
({} 22 conservation devices which would show or lessen sewage flows.
23 P-7 is an area which is relatively undeveloped,
{]) 24 and perhaps the presumption is that there will be a greater 25 water conservation effort in those areas, since as we pointed
2298 4
3 out somewhere else in this document, that they are assuming
() 2 a fifteen percent, I believe it was, reduction for new 3 residences, as opposed to a four percent reduction for old
(]) 4 residences. That would be my guess.
5 Q I just noticed, I think I have an answer to one 6 of my questions about subarea P0. I direct your attention to 7 II-6 .
g MS. BERNABEI: I am going to object to Mr. Gehr 9 testifying as to his opinion, or his answer to his own 10 questions. If he wants to ask the witness --
11 MR. GEHR: I shall. I asked him to look at page 12 II-6.
BY MR. GEHR:
Q 13 14 0 would you read the paragraph under the caption 15 " Phoenix."
16 A Phoenix is divided into eight subareas. P-1 is 17 a service area of the 23rd Avenue wastewater treatment plant, 18 and P 0 is the area within the 23rd Avenue wastewater 19 treatment plant service area that actually goes to the 20 91st Avenue wastewater treatment plant.
21 Area P-7 is the area of Phoenix that could be 22 served by a northeast plant. All of the other areas are
)
23 served by the 91st Avenue wastewater treatment plant.
24 Q Turning to page 11-9.
25 MS. BERNABEI: II-9 ?
2299 5 1 MR. GEHR: Excuse me, II-9.
O)
\- 2 BY MR. GEHR:
3 0 Would you read the second paragraph, please?
() 4 A Yes. "Except for the City of Phoenix, all of the 5 communities have single per capita flow values. Since 6 Phoenix is so diverse in its land use, it was decided that 7 different per capita values could be applied to dif ferent 8 subareas. The highest unit flows are in the 23rd Avenue 9 wastewater treatment service area with its heavy concentratior 10 of industry. The lowest unit flows are in the northeast and 11 southeast, where there are low concentrations of commercial 12 and industrial development.
(]) 13 Q And that is the basis on which this report 14 indicates -- that counts for the difference between 130 for 15 P-0 and P-1, and the 95 for P-2 and P-7, is that correct?
16 MS. BERNABEI: Objection. I believe that is a 17 compound question, which is rather confusing.
18 MR. GEHR: If he understands.
19 MS, BERNABEI: It is a compound question, which is 20 rather confusing. If the witness understands it, fine . I 21 don't understand it.
22 CE) 23
() 24 25 f
)
2300 T11,jg i THE WITNESS: That appears to be the case.
() 2 BY MR. GEHR:
3 Q Thank you. Would you please turn to page III-1?
() 4 Directing your attention particularly to the second paragraph 5 on that page, does that paragraph describe the selected 6 point source plan of the multicities SROG numbers, and if 7 so -- do you know what SROG means? I don't.
8 A SROG stands for subregional operating group. It 9 is known as SROG.
10 Q And does that paragraph generally describe the 11 selected point source plan?
12 A Paragraph two describes it in part.
13
(}) Q I notice there is a reference in that paragraph 14 to North Scottsdale (CAP Plant.)
15 A Yes.
16 Q Do you know what that is referring to?
17 A That is a plant that is being considered for 18 the city of Scottsdale north of the Central Arizona Project 19 Canal.
20 Q That is not the northeast plant that I think 21 some other people -- I think you mentioned, is that correct?
22 A No, I believe this is a different plant. It is
[}
23 a small plant which will be used for irrigation purposes 24 along the canal.
25 0 In addition to that subregional plant or
2301 1 satellite plant, or whatever you want to call it, they 2 also identify another one called North Glendale or 3 Arrowhead.
4 A Yes.
5 0 Is that correct?
6 As far as wastewater treatment facilities, 7 however, the selected plan is the continuation of the 91st 8 Avenue Plant, and the expansion o"f the 23rd Avenue plant, 9 is that what that states?
10 A That is what this paragraph states.
11 Q Do you know of any changes that have occurred 12 since that time, since this report has been published?
$ 13 A No. I know of no change of what is detailed 14 in paragraph two.
15 0 Turn to page III-9? What is -- and directing 16 your attention to the section following the caption 91st 17 Avenue Plant, what is the proposal with respect to the 91st 18 Avenue Plant?
19 A The 91st Avenue Plant is currently -- Ecan read '
20 it?
21 Q Whichever you want to do.
g 22 A The plant is presently being expanded to 120 MGD 23 and the plant selected by the multi -- it should be cities g 24 SROG members, was to expand it again by another 30 MGD.
25 This would bring it up to 150 MGD by 1985/1987.
2302 1 Q Are the cities which are represented by the
(]} 2 Arizona Municipal Water Users Association included -- are 3 all them included in the multicity SROG members?
4 A Yes.
5 Q Is AM -- is the Arizona Municipal Water Users 6 Association associated with the MAG committee, if you know?
7 A City managers serve on the MAG committee. City 8 managerE are board of directors.
9 Q Is Mr. Stephens a member of the management 10 committee?
11 A No, he is not.
12 Q Following -- what are the assumptions -- strike s 13 that question.
14 Following the paragraph which you just 15 referred to, are the assumptions on which projected flows are 16 made for the 91st Avenue plant are set forth, would you 17 particularly -- would you -- I would like you to address the 18 laat two assumptions shown.
19 A Those are the ones beginning with no allowance?
20 Q Yes.
21 A No allowance has been made in the flows to the 22 plant for waste sludge for other plants, e.g. 23rd Avenue 23 wastewater treatment plant.
24 Q Just stopping there, w hat does that refer to?
25 A I don't know.
. . . - , _ l
2303 1 Q Very well. The last assumption indicated, what
() 2 does that deal with?
3 A No allowance has been made for bypassing excess
() 4 flow f rom the 23rd Avenue wastewater treatment plant, i.e.
S the 23rd Avenue wastewater treatritent plant would be expanded 6 to handle the projected flow from its service area.
7 Q Does that mean that that line that you mentioned 8 earlier this morning, that would permit the sewage delivered 9 to the 23rd Avenue plant to be sent to the 91st Avenue 10 plant for treatment, would no longer be utilized?
11 A That would be the assumption I would get from 12 reading this, this thing.
() 13 Q Turning to page III-10, this is a table which --
14 what is this table?
15 A Table III-1 projected flows to the 91st Avenue 16 wastewater treatment plant.
17 Q And kould you read the totals for the years 18 1980, 1985 and 1990?
19 A The total for the year 1980 is 90.4 million 20 gallons per day. 1985, 109 million gallons per day. 1990, 21 121.5 million gallons per day.
22 0 Would you please turn to page C-1 of Joint
(])
23 Applicants' Exhibit KK?
{) 24 MS. BERNABEI: You said C dash --
25 MR. GEHR: C-1, Charlie One .
2304 1 MS. BERNABEI: What page is it on?
() 2 MR. GEHR: It is the appendix. We referred to 3 it earlier in the testimony.
i O 4 aY MR. GEHR:
5 0 For those three years which you indicated, the 6 original plan -- are those -- in each of those years, is the 7 updated projected flow greater than the projected flow used 8 in the original plan, as indicated on page C-1 of Joint 9 Applicants' Exhibit KK?
10 A Yes.
11 Q And this is after allowance for conservation, 12 af ter allowance for the discontinuance of the use of the line connecting the 23rd and the 91st Avenue treatment plant,
(]) 13 14 is that correct?
15 A Yes.
16 Q Which of these two projections would you use for 17 planning purposes?
18 A I can't say. I have not fully examined this 19 entire document.
- 20 Q Does Arizona Municipal Water Users Association 21 support MAG?
{) 22 A Yes.
23 Q Does the City of Phoenix support MAG?
( g- 24 A Yes.
\
I t
Does the City of Phoenix plan to expand the 91st 25 Q
2305 I Avenue Plant?
() 2 A Yes.
i 3 0 To 150 million gallons per day?
O 4 ^ Yee.
l 5 Q Do you suppose that they -- do you know if they 6 are doing that on the basis of projections which are shown i 7 in the MAG 208 update?
I l 8 A Yes.
9 0 So you are saying that you just don't -- haven't 10 studied this enough to make your own opinion as to whether
- 11 you would rely on these projections for planning, .but the l
l 12 City of Phoenix is, is that correct?
(} 13 A That is correct, yes.
14 Q And is that true with the City of Scottsdale?
15 A Yes.
16 0 And the City of Tempe?
l 17 A Yes.
l 18 0 And the City of Mesa?
1 19 A Yes.
20 0 And the City of Glendale?
21 A Yes.
(} 22 Q And I believe basically you testified earlier that 23 in planning you should always use the most current updated gm 24 data?
d 25 A I can't remember if I exactly said that. I said --
i
2306 1 I believe I said that you usually use the most current
() 2 updated data. The question of whether that is more or less 3 valid than data previously, that is something that has to be 4 examined.
[}
5 Q Do you have any reason to question the 6 projections that are stated, that you have just considered 7 on page III-10, any reason to challenge them?
g A I can challenge them in the sanse of they are 9 based upon populations projections, and projecting population 10 is an art, not a science. I can challenge them on the basis 11 of assumptions that they have used. They may be more or 12 less correct, or incorrect. I don't know.
13 0 You are saying you don't know whether they are (a) 14 correct or not correct? You are not challenging them today?
15 Are you challenging these projections?
16 A No, I am not challenging them today, at this 4 17 time, because I have not studied them deeply.
13 Q Well, this seems kind of strange, Mr. McCain.
19 You have gone to great lengths to explain all the 3 studies you 20 do, and all the planning that you take into account, and all 21 the uncertainties there are about water sources, including 22 the use of effluent for exchange purposes, and the right to --
O 23 some right under Section 21 of the contract, and you are 24 not familiar with these projections. You are not familiar 25 with the most current projections.
2307 1 A I --
() 2 MS. BERNABEI: Objection. That is not what the 3 witness answered, and I would object further to harassment
(]) 4 of this witness. If Mr. Gehr has a question about why he 5 hasn't studied it, that -- but his testimony was not that he 6 was not familiar. His testimony was that he had not studied 7 it.
8 JUDGE LAZO: Well, che record will show what his 9 testimony is, and we don't believe that Mr. Gehr is 10 harassing, the witness.
11 MR. GEHR: I have tried not to.
12
'3 CE) 14 15 -
16 -
17 18 19 20 21
()
23
() 25
2308 O 81 xa. osaa:
2 O Would you turn to page III-13.
3 (Witness turns to page III-13.)
4 In the caption under 23rd Avenue Plant, the para-5 Is graph discusses the expansion of the 23rd Avenue Plant.
6
( that not correct?
A Yes, it does.
8 Q And it states that in the 1979 208 Plan the 23rd 9
Avenue Plant was to be upgraded but not expanded at 37.2 mgd.
10 A Correct.
II Q And it goes on to say, does it not, that based 12 upon the 1979 population projections and revised unit flows, I3 the 23rd Avenue Plant needs to be expanded initially to about O 14 42.5 mgd.
15 A That is correct.
16 Q And by 2020, the plant will have to be expanded
' to about 48 mgd.
A That is correct.
O And then in concludes, does it not, with a state-O ment that it may be more economical and simpler if the ex-
' pansion to 50 mgd is done at one time. Is that correct?
22 A It says it may be more economical and simpler if 23 the expansion to 50 mgd is done at one time.
l Q Would you turn to page III-20, 4
25 (Witness turns to page III-20.)
O
2309 1 Which is the beginning of table III-4, Point 2 Source Plan, is it not?
3 A That is correct.
O 4 Q Does that not show that the 91st Avenue expansion 5 of 30,000,000 gallons per day is scheduled for completion in 6 19867 7 A Yes.
8 Q Does it show that the 23rd Avenue expansion to 9 50,000',000 gallons per day scheduled for completion date of 10 1985 to 19907 11 A Yes.
12 O Turning to page III-23, being a continuation of 13 Table III-4, it lists -- what does that page show?
( 14 A It shows small plants for future consideration, 15 and it identifies what may be the participating communities.
16 No estimates are given for the completion date. No esti-17 ma tes are given for the costs.
18 Q It clearly indicates, does it not, that these l
19 plants are not included in the selected plan at this time, 20 is that not correct?
21 A The plants themselves are not included in the 22 selected Plan. The plan, however, allows local option to j
23 at some point come back and readjust the Plan to include
() 24 such.
25 Q Turning to page IV-3 --
O
2310 1
(Witness turns to page IV-3.)
2 -- this is Table IV-1, is it not, and indicates 3
the effluent availability with majority of flow to 91st I 4 Avenue?
5 A Yes.
6 And looking at the next page, table IV-2, effluent Q
7 availability with satellite plants, is that correct?
8 A That is what it says, yes.
9 Do you know what the satellite plants are and what Q
10 satellite plants are included in the table IV-2?
II A I would --
12 Q I am not trying to trick you. Turn to page IV-2.
13 (Witness turns to page IV-2.)
34 I am looking at the next-to-last paragraph on the 15 page.
16 A
" Satellite plants are built at East Mesa in the 17 northeast area. The picture changes very slightly. Contract-18 ed effluent needs can only be met around the year 2000. For 19 actual needs, they can be met at all times even from the 20 reduced flows at 91st Avenue Wastewater Treatment Plant."
21 Q Let us go back to Table IV-1. This is rather com-22 plex, and I would like to get it straight as to what it means, 23 MS. BERNABEI: It is on page IV-37 24 MR. GEHR: Yes.
///
A V
1 2311 h I BY MR. GEHR:
2 O I notice in the first column it shows 23rd Avenue 3 with a projected flow -- would you -- I believe it is a pro-4 jected flow. I am not sure what it is. Of 42.6 in 1980, S which is beyond the capacity of the plant, is that not cor-6 rect?
7 A That is correct.
8 Do you suppose that this projection would just Q
9 assume that the plant had been expanded for purposes of the 10 showing the table tabulation?
II A I cannot assume that since this table was prepared 12 in 1982. I do not know exactly why they put more capacity 33 than the plant has in 1980.
14 (Pause.)
15 Are you familiar with the actual discharges from Q
16 the 91st Avenue Plant from the year 19817 17 A I cannot give you a figure, no.
18 Q Mr. McCain, I will hand you a document which is 19 Joint Applicants' Exhibit E, which I will let you examine.
20 (Document proffered.)
21 MR. DEWEY: Pardon me, did you identify that as 22 Exhibit E or D?
23 MR. GEHR: E.
24 Joint Applicants' Exhibit E is the report by the City of Phoenix Waters and Sewer Assistant Director,
I l
2312 1 Mr. Steytler on the actual flows in 1981.
2 BY MR. GEHR:
3 Q Is that correct?
l
() 4 A Yes.
S Q Turning to page 2 of the chart,.in the column, 6 91st Avenue Total, what does that indicate the total flow was 7 in 1981?
8 MS. BERNABEI: Are you on the second page of this 9 exhibit?
l MR. GEHR:
10 The second chart.
Il THE WITNESS: Ninety-first -- the table is not 12 clear, but it is fairly obvious that it is 102.95 million 13 gallons per day, I would gather, yes. See, there is no
/~%
t/
s 14 real legend, but I would say that is what --
15 BY MR. GEHR:
16 Q I call your attention to the caption of the column 17 under 91st Avenue Flow in billion gallons by months and then 18 at the bottom, the last line it says an abbreviation for 19 average.
20 A Okay.
21 Q Are you now satisfied that it is a million gallons 22 per day?
23 A Yes, I am. That is the average daily flow of a 24
(]) million gallons.
25 Q Turning to Page III-10 of Joint Applicant's O
2313 h I Exhibit LL -- that is the Update Plan --
2 (Witness turns to page III-10 of JA-LL.)
3 Would you look at the total of the projected flows 4 to the 91st Avenue Plant for the year 1980.
5 A It gives a total of 90.4.
6 In what units?
Q .
7 A Million gallons per day.
8 jjj 9
10 11 12 13 O i4 i5 16 17 18 19 20 21 22 23 O " .
25 O
2314
"^
-1 1 0 The total flow in 1981 was 102.95, was it not?
~J 2 Or the average flow, I should say.
3 A I believe so.
/, s 4 Q That represents an increase of over 12, 13 per-5 cent?
6 A That it does.
7 0 Would that indicate to you that perhaps the pro-8 jected figure for the year 1980 in the Update Plan on page 9 III-10 is perhaps too low? -
10 MS. BERNABEI: Objectio . It's a projection.
11 I don't know how it could be too low or two high. I don't 12 think the question makes any sense.
13 MR. GEHR: We'll see if the witness -
() ,
14 THE WITNESS: Are you talking about the flow to 15 91st or the flow to 23rd?
16 BY MR. GEHR:
17 Q No. We looked at 91st Avenue. And we found in 18 1981 the flow was 102.95. Is that not correct?
19 A Yes.
20 Q And we see Table III-l on page III-10 of the 21 update that the total flows estimated were projected for 22 1980 at 90.4. Is that not correct?
23 A That is correct.
'"' 24 And we observed that if the projected flows for
- Q a
25 1980 were correct -- and not projected, but actual -- that 77 there was over a 12 to 13 percent increase between 1980 and m)
2315 2 1 1981. Is that correct?
g 2 A You say 11 percent?
3 Q No, I said 12, 13.
O 4 A There is a 12 to 13 percent increase in the amount 5 of sewage treated at the 91st Avenue plant. That's what 6 these figures appear to say.
7 Q They could also say that the amount shown as a 8 projected amount for 1980 were not based on actual 1980 re-9 sults but were a low estimate of what would have been pro-10 cessed in 1980. Is that not possible?
11 A That is possible.
12 (Pause.)
13 . O Mr. McCain, I hand you a copy of Joint Applicants' llk 14 Exhibit D, which is a flow-projection comparison, MAG 208 15 study, versus Phoenix Wastewater Division projection in mgd.
16 I'm going to look solely at the reported actual discharges 17 in 1980, which is shown in the column with the caption "1980.
18 And under that caption there are two subcolumns, one being 19 "208 Report," and the other being " Actual."
20 Would you read to me what the total for 1980 21 Actual is, as shown on that exhibit?
22 A It shows 127.04.
23 Q And looking at the caption, does it indicate the gg 24 units?
25 A MAG 208 Study versus Phoenix Wastewater Division O
2316
(]) 1 projection in mgd.
2 Q Therefore, the 127.04 is million gallons per day.
3 Is that correct?
4 A Yes.
5 Q Now, that is a total of the output from 23rd and 6 91st Avenue plants. Is that not correct?
7 (Pause.)
8 A I'm trying to think.
9 Q You needn't be surprised, Mr. McCain. We had 10 trouble with this exhibit when it was introduced.
11 A I think I remember --
12 Q It was a --
13 A Yes, this thing, this document first combined 14 the Phoenix total, and then takes a subtotal, and then 15 adds the flows from the other cities.
16 Q Can we determine the flow from the 91st Avenue 17 plant by taking the total, which you stated was 127.04, and 18 deducting therefrom the amount shown as the flow from the 19 23rd Avenue plant?
20 A Yes, I think that can be done.
21 Q And is that difference or the amount for the 91st 22 Avenue plant 92.46 million gallons per day?
23 (Pause.)
24 JUDGE COLE: That's not what I got, Mr. Gehr.
([ )
I 25 (Laughter.)
O l
2317 l
1 MR. GEHR: You've got a calculator, though. What
}
2 do you have?
3 JUDGE COLE: 92.49.
h 4 MR. GEHR: I stand corrected, 5 JUDGE COLE: Okay.
I 6 THE WITNESS: 92.49 mgd.
7 BY MR. GEHR:
8 Q Mr. McCain, were you present when this exhibit
- 9 was discussed earlier?
10 A In this body?
11 Q Yes.
12 A Yes, I was.
13 Q Are you aware that this tabulation was prepared 14 by the City of Phoenix?
15 A I believe I heard that testified to. Sitting in 16 the back there, it is sometimes difficult to hear what goes 17 on. .
18 Q How do the actual discharges from the 91st Avenue 19 plant in 1980 compare with the amount shown as a projected 20 flow to the 91st Avenue plant in Table III-l at page III-21 10 of Applicants' Exhibit LL?
22 A The 1981 figure from Applicants' Exhibit D -- is 23 that the one I just saw?
() 24 Q You just used it. " Dog," "D."
25 A We calculated that to be 92.49 mgd.
h
2318 1 The projected flow from Table III-l on page --
2 JUDGE COLE: Sir, I thought that was a 1980 figure, 3 not a 1981 figure.
4 THE WITNESS: Was it? I'm sorry. I don't have 5 that back. Was that a 1980 figure?
6 BY MR. GEHR:
7 Q That was a 1980 figure.
8 A I'm sorry. 1980.
9 The comparison between the two shows a difference 10 of 2.45 mgd, with the lower figure being in the projected 11 flow and the higher figure being in the calculation of the 12 actual flow.
13 Q Do these comparisons we have just made with the ll 14 projected flows for 1980 with the actual flows to 1980 and 15 1981 we have just gone through indicate to you that per-16 haps these projections started with a very low base?
17 MS. BERNABEI: Objection. There is not a factual 18 basis for that question. "Very low"? Who knows what that 19 means? It's quite rhetorical.
20 MR. GEHR: I thought the question was perfectly 21 proper.
22 I asked for an opinion.
23 MS. BERNABEI: I think it calls for speculation 24 unless he defines "very low" in terms of some measurement 25 that we can understand.
O
2319 (g 1 MR. GEHR: Just a lower base than --
2 MS. BERNABEI: I'm going to object to the ques-3 tion. I don't know what " low," "high," or anything else O 4 means. -
5 MR. GEHR: I said a "lcwer base."
6 JUDGE LAZO: A " lower base." That would rectify 7 the problem.
8 MS. BERNABEI: Well, I'm going to object. I think 9 he has answered that one figure is lower than the other.
10 I don't know what this question means, how that is any dif-11 ferent than the past question. And I think he has answered 12 it.
13 MR. GEHR: No, he has not. I'm asking about the 14 projection flow, starting with the base number in 1980, and 15 whether that doesn't indicate that the projections are too 16 low.
17 MS. BERNABEI: I believe he has answered that one 18 figure is lower than the other.
19 MR. GEHR: May we have him answer the question?
20 JUDGE LAZO: The witness may answer the question.
21 THE WITNESS: Would you repeat the question? I'm 22 sorry.
23 BY MR. GEHR:
g 24 Q Having made the comparisons, Mr. McCain, between 25 the amounts shown as a projected flow in 1980 on Table III-l O
2320 1 of Applicants' Exhibit LL with the actual flows in 1980 and 7{ }
2 1981, does that indicame to you that the base for the projec-3 tion shown in Table III.-l is low?
4 A Yes.
5 Q Does that give you any more confident that the 6 projections used, shown in the updated plan, are suitable 7 for planning purposes?
8 MS. BERNABEI: Objection. I believe that calls 9 for speculation on the part of the witness. He didn't say 10 he did not have confidence in these figures. That was not 11 his testimony. Therefore, I don't know if he has any more 12 confidence now than before. The question is meaningless 13 in the context of these proceedings.
/s
(-) 14 MR. GEHR: I think it's perfectly proper. I 15 thought he did say that he did not have confidence in the 16 projections personally. .
. 17 MS. BERNABEI: I don't think he has testified to 18 that.
19 I believe the question is irrelevant and asks for 20 speculation.
21 JUDGE LAZO: The objection is overruled.
22 THE WITNESS: Would you repeat the question, 23 please?
24 BY MR. GEHR:
({}
25 0 In light of the comparisons we have just made and
2321 O the co=c1==io#= e aeve su t re caea co eeri=9 rea1e ' -
2 1 to the actuals for 1981 and actuals for 1980, would that 3 give you any confidence in the use of the projections in 4 the update for planning purposes for the purpose of planning 5 expansion or enlargement of the 91st Avenue plant?
6 A I cannot presume that the figures shown for 1985 7 will be more conservative than actual flows or less than 8 actual flows. You gave me actual flow figures for 1981 and l 9 1980, and they are greater than the projected figures. I 10 cannot extrapolate any farther than that.
11 Q Well, then let's go a little further.
12 What was the increase in flow at the 91st Avenue 13 plant from 1980 to 1981?
14 MS. BERNABEI: Objection. I think he has answered 15 these questions.
16 MR. GEHR: No, he has not answered that question.
17 THE WITNESS: From --
18 BY MR. GEHR:
19 Q Actual 1980 to actual 1981. Was the difference 20 approximately 10 million gallons per day?
21 A About 10 million gallons per day.
22 O And is that more than a 10-percent increase?
23 A Yes.
O 24 o and if you erosected sust on those two ectue1 fi-25 gures, extrapolated forward at a 10.5-percent increase from
2322 1 1980 to 1985, would that be greater or less than -- and I
)
2 don't ask for a specific number -- than the amount shown l
l 3 in Table III-l for the year 1985?
4 A I can't answer that question until I know why there 5 was a 13-percent jump from the actual projection in 1980 6 to 1981. The plant may have been treating effluent from 7 the 23rd plant at that time. I don't know. I can't --
8 That is a large jump, I will admit that. But as to why that 9 is so, I don't know. And until such time as I know that, 10 I can't extrapolate any more than that.
11 12 13
) 14 15 .
16 17 18 19 20 21 22 23 24 ID 25
2323 1 Q Have you done any of your own projections
() 2 respecting the treatment of ef fluent at the 23rd and 91st 3 Avenue plant,' or any other plants ?
() 4 A No, I haven't.
5 0 Mr. McCain, has the City of Phoenix instituted 6 a conservation program?
7 A Yes, it has.
8 Q The City of Scottsdale?
9 A No.
10 0 The City of Tempe?
11 A No.
12 O The City of Glendale?
13 A
(]) No.
14 Q The City of Mesa?
15 A No.
16 Q Do yo'u know if the town of Youngtown has?
17 A I don't know.
18 0 Would you describe what the current status of 19 the -- I am going to start over again.
t l 20 The conservation program instituted by the City 21 of Phoenix is just getting off the ground, is that not 22 correct?
13 A That is true. It had its, I guess, official 24 getting off the ground approximately two weeks ago.
{)
25 Q And at that time, did the Mayor perform some act t
2324 1 to symbolize the conservation program?
() 2 A The act that was symbolic was the preparation of 3 three small plots upon which natural or arid -- or upon n)
(_
4 which native vegetation would grow, or vegetation which may 5 not be native to the area, but it is arid land type 6 vegetation. Low water consumptive vegetation.
7 Q And that sort of -- doesn't -- and those three 8 plots, were they by the City Hall?
9 A Yes.
10 0 Was it the intent to symbolize that one -- the 11 primary focus of at least this stage of the plan was to 12 reduce irrigation of lawns and the use of plants and shrubs
(]) 13 which would use larger quantities of water than arid 14 landscaping?
15 A I believe the preparation of those three plots 16 is to symbolize that not only can those plants use less water 17 than the normal vegetation you see in the area, but that as 18 much pleasure can be gotten f rom those types of vegetations 19 than from the green lawns and the imported trees.
20 It is clear that major conservation savings can 21 be made through improved domestic irrigation practices.
22 O
{]) Is there any effort, if you know, is there any 23 effort being made by the City of Phoenix to concentrate
{) 24 their efforts at conservation at one part of the city, as 25 against another, say as a part outside the project, the Salt
2325 1 River Project Reservoir District boundary, and within the O 2 houndery2 3 A Seeing as the portion of the City of Phoenix 0 4 oue ide the se1e niver eroseot neeervoir oiserict sounderies 5 are those prtions of the city whica are experiencing the 6 most gr wth, it is my understanding that the City of Phoenix 7 will do all they can' to encourage the use of low water 8 consumptive vegetation in those particular areas.
9 0 What impact would you expect this kind of a 10 conservation program to have on the production of waste water 11 ef fluent?
12 A The conservation of outside areas, that is, 13 outside the home, should have no impact upon sewage flows, 14 because they don't go into the sewage system.
15 Q Thank you.
16 MR. GEHR: Would it be appropriate to take a 17 break at this point in time?
18 JUDGE LAZO: Surely. 15-minute recess, then?
19 MR. GEHR: That is fine.
20 JUDGE LAZO: Off the record.
21 (Brief recess.)
22 JUDGE LAZO: On the record. Will the hearing come 23 to order, please .
24 BY MR. THR:
25 0 Mr. McCain, are you familiar with the projections
2326 I which are made of effluent releases from the 23rd and 91st
() 2 Avenue plant, prepared by the City of Phoenix?
3 A I have seen what I believe to be copies of them,
() 4 but I am not familiar with the process by how they were 5 obtained.
6 Q Do you believe that those figures of the city 7 which constitutes a member of your organization are valid?
8 A Are you referring to the --
9 Q City of Phoenix projections of effluent from the 10 23rd and 91st Avenue plants.
11 A At what point in time?
12 Q As of today, the latest projections.
(} 13 A Projections, what I mean by what point in time, 14 I mean for what date, projected date?
15 0 Say for the year 1985.
16 A I would feel that they are generally accurate, 17 yes. Or perhaps I feel that they will prove to be generally 18 accurate.
19 Q Mr. McCain, referring again to Joint Applicants' 20 Exhibit D, as in Dog, would you please indicate what the 21 total city total for the city projection in the year 1985 is, 22 from 23rd and 91st Avenue plants?
) ,
23 A The Phoenix total or the grand total?
24 Q The Phoenix -- the city projection, for the grand 25 total, for both plants.
l 2327 ,
1 MS. BERNABEI: Objection. The grand total? I
() 2 don't know what that means. Does he mean the total for the 3 two plants?
() 4 BY MR. GEHR:
5 Q The total for the two plants.
6 A By grand total, I mean the bottom line.
7 0 Yes.
8" A Okay. Double meaning there. 165.3 million 9 gallons per day.
10 0 And if we subtracted from that total the cities' 11 projections for the 23rd Avenue treatment plant, 37.2, would 12 the result be 128.1 million gallons per day?
13 A From the 91st Avenue plant, that would be the
(]}
14 total, yes . It is probably somewhat inflated. It appears to 15 be upon examination.
16 Q Do you have any idea how much?
17 A Not exactly, but it is my understanding that the 18 capacity of the 91st Avenue plant in 1985 will be 120 MGD.
19 So this shows 8.1 more than capacity, 20 0 What is the capacity of the plant, of the 91st 21 Avenue plant today?
22 A 90.
23 Q And what was produced or processed in 1981, at 24 that plant?
25 A Is that 102.95? I have got some figure here.
2328 1 Q Yes, that is the correct number.
) 2 A That is it? It was running at excess capacity 3 evidently.
() 4 0 So the reason that you have just given that the --
5 in 1985 the plant would only have a capacity of 120 million 6 gallons a day would not necessarily be the explanation then, 7 is it, that the 128.1 is excessive?
8 A That is a fair assumption, yes.
9 Q What are the commitments, contracted commitments 10 for the use of effluent discharged from the 91st Avenue plant, 11 if you know?
12 A There is currently a commitment to the Arizona i*
(]) 13 Game and Fish Service for six and a half or seven and a 14 half thousand acre-feet of effluent per year.
15 Q Well, let me -- I don't want to confuse these I
16 numbers. Would you agree that the number is 7300 acre-feet 17 per year?
18 A To the best of my recollection, that sounds a 19 reasonable number, yes.
20 0 And how much is committed to the Buckeye 21 Irrigation District?
22 A 30,000 acre-feet per year.
(}
l 23 0 So that the total commitments to those two 24 entities is 37,300 acre-feet, is that not correct?
15 A That is correct.
l i
2329 1 Q Are there any other commitments that you know of?
2 A Yes.
3 0 Which?
4 A Arizona Nuclear Power Project.
5 0 If we take the cities' projection for 1985, for 6 the effluent to be discharged from the 91st Avenue plant, 7 which I believe we found to be 128.1 million gallons a day, 8 oh boy, and subtracted therefrom the quantities needed to 9 fulfill the commitments to Buckeye Irrigation District, and 10 Arizona Game and Fish Department, which we stated in acre-11 feet per year, we will have to make that conversion, and I 12 will give you a number.
() 13 I have got to start all over again, because of the 14 acre-feet per year.
15 MS. BERNABEI: Can I make a suggestion? There 16 has been a general policy not to have witnesses take up 17 hearing time making calculations, just because of the --
18 MR. GEHR: I am going to make that very easy.
19 MS. BPRNABEI: If there is some way to short-20 circuit this, it would probably be helpful.
21 JUDGE LAZO: We did last time. I think we can.
() 22 MR. GEHR: I would give him a number of 23 million gallons per day, so that --
24 JUDGE LAZO:
(]) That would be very helpful. That 25 should not take so long.
2330 1 MR. GEHR: Yes.
2 BY MR. GEHR:
3 Q As indicated on table IV-1 --
() 4 A Table IV-1, yes?
5 O Joint Applicants' Exhibit LL.
6 A The update?
7 0 The update, in the column labelled committed 8 ef fluent / effluent actually used (1) AGEF, which I assume 9 is AG & F, what does it show a requirement or commitment 10 for Arizona Game and Fish, in million gallons per day?
11 A It doesn't. Yes, I am sorry. I see footnote 12 one. 6.5 million gallons per day.
(]) 13 0 And look at footnote two, would pu please?
14 A Buckeye Irrigation Company, 26.8 MGD.
15 0 All right. And the total of 6.5 and 26.8 is 16 33.3, is that correct? Million <tallons per day?
17 A Yes.
18 Q Now, will you also read the commitment -- strike 19 that. I am starting over again.
20 Under the column with the footnote, reference 3, 21 and ANPP?
, 22 A Yes.
23 0 And looking at footnote 3, is the total (g 24 commitment of 140,000 acre-feet per year indicated to be V
25 125 million gallons per day?
2331 1 A I don't know if 140,000 acre-feet per year is 2 125 million gallons per day, but I would certainly assume 3 that that is what they are talking about in here . I think
() 4 that is really a fair assumption.
5 0 very good.
6 A But I don't know for sure.
7 JUDGE COLE: That is the same figure, sir.
8 THE WITNESS: Okay, fine. That is what I think 9 it was.
10 BY MR. GEHR:
11 Q Then when we look at the slash in that column, i
12 it says effluent actually used. Is that correct?
() 13 MS. BERNABEI: Which column are we talking about, 14 Mr. Gehr?
15 MR. GEHR: Pardon me?
16 MS. BERNABEI: Which column are we talking about?
17 MR. GEHR: I am sorry. It is confusing.
18 BY MR. GEHR:
19 Q The column ANPP, under the general caption, 20 committed effluent /ef fluent actually used, and it shows for j 21 the year 1980 125/0.
O 22 A Yes.
23 Q And zero means there was none actually used in l 24 1980, is that correct?
[}
25 A That is correct.
2332 1 Q And in 1985, it shows 125/38.7, and what does that
() 2 mean?
3 A According to this table, that means that of the
() 4 125 MGD committed to ANPP, in 1985, it is estimated that they 5 will be using 38.7 MGD.
6 Q And in 1990, what is the number shown?
7 A 125 MGD committed ef fluent, 58 MGD effluent 8 actually used.
9 0 And that 58 is constant for all subsequent years 10 shown, is that not correct?
11 A That is correct.
12 Q And is the amount of 58 million gallons per day
({} 13 the amount of effluent which would be required to operate 14 three units? Would you turn to page IV-27 It may simplify 15 your consideration.
16 MS. BERNABEI: We are in table IV-2?
17 MR. GEHR: No, page IV-2.
l 18 THE WITNESS: Yes. It says, for example the
, 19 ANPP contract calls for 125 MGD, but the estimated maximum 20 rate of use for three reactors is 58 MGD.
21 BY MR. GEHR:
)
22 0 Would the 58 MGD, just for reference purposes, 23 is that 65,000 acre-feet per year?
24 A I would guess it would be a little more than 25 66,000 acre-feet per year.
l l
2333 1 0 okay. You did that very rapidly. You took an
( 2 eight and added. Very good. Now, referring back to Joint 3 Applicants' Exhibit D, Dog.
() 4 I believe we found from that, that under the 5 cities' projection for 1985, from the 91st Avenue plant, 6 was 128.1 million gallons per day, is that not correct?
7 A Yes. Around those figures.
8 Q And we also determined, did we not, when we were 9 dealing with table IV-1, that the total prior commitments to 10 the Arizona Game and Fish and Buckeye Irrigation Company was 11 33.3 million gallons per day, is that not correct?
12 A That is correct.
() 13 Q And if we subtracted the 33.3 million gallons per 14 day from the City of Phoenix projection in 1985 of 128.1, 15 would the result not be the amount available for satisf action 16 of a commitment to Palo Verde?
17 A The amount is 94.8.
18 Q And that amount would be available for 19 satisf action of the commitment for Palo Verde, is that j 20 correct, or ANPP?
21 A That -- yes.
l 22 And that is approximately 36 million gallons per
({} O l 23 day in excess of the requirements for three units, is that 24 not correct?
(])
25 A 36.8.
1 . -
=
2334 1 Q Very good. Does this not indicate to you that
(# 2 the quantity of ef fluent being projected to be treated and 3 processed out of 91st Avenue is more than sufficient to meet
() 4 the requirements of three Palo Verde units?
5 A What this figure indicates to me is that the 6 91st Avenue plant produces enough effluent to cool three 7 reactors at Palo Verde.
8 Q Very good.
9 10 11 12
(]) 13 14
- 15 16
! 17 l
l 18 19 20 21 22
(:)
23 24
(:)
25
l 2335 h-1 1 BY MR. GEllR :
2 Q Is it not true, Mr. McCain, that during the course
,e N 3 of the negotiations between Arizona Municipal Water Users V
4 Association and APS and Salt River Project --
5 MS. BERNABEI: Objection. We specifically did 6 not questions Mr. McCain about the negotiations -- that is, 7 the specifics -- because, as I --
8 MR. G Ell R : May I --
9 MS. BERNABEI: If I could finish my objection -
10 As I understand it, the Board did not want --
11 MR. GEllR : May I finish my question?
12 MS. BERNABEI: Well, I believe the questions has 13 to do with the negotiations.
( !
15 MS. BERNABEI: And we object to questioning on 16 the negotiations or the specifics thereof. The Boald did 17 question --
18 MR. GEllR : It's improper not to permit the coun-19 sel --
20 JUDGE LAZO: One at a time, please.
21 MR. GEllR: Yes, and I think I'm entitled to state 22 my question. And then the objection to the question is pro-23 perly made.
/^h
( '
24 MS. BERNABEI: The question has to do wi,th the 25 negotiations. I think that's pretty cicar.
g
\ .
2336
(]) 1 We did not approach that on direct. And I uinder-2 stand from Mr. Hulse's testimony that the Board did not want 3 to inquire into the specifics of the negotiations.
4 JUDGE LAZO: Now, wait a minute, counselor. We 5 remarked earlier this morning that we had permitted Mr. Hulse 6 to discuss the negotiations. There was no prohibition 7 against Mr. McCain doing the same thing.
8 MR. GEHR: In fact, that was the basis on which 9 he was going to be subpoenaed.
10 MS. BERNABEI: Not into the specifics of the nego-11 tiations, just that there had been negotiations. In other 12 words, when Mr. Hulse testified, I didn't question him on 13 the specifics. The Board did so, and indicated that they 14 didn't feel that deeper probing was required.
15 I did ask Mr. McCain about the fact that there 16 had been negotiations and whether or not Mr. Stevens wrote 17 to the Board that there had been negotiations, but not about-18 JUDGE LAZO: That's all we were interested in, 19 and we had limited the testimony to those areas. We simply 20 wanted to find out what specific provisions of the agreement 21 were under the subject of negotiation.
22 Now let's hear Mr. Gehr's question.
23 MS. BERNABEI: Well, if it's as limited as Mr.
() 24 Hulse's testimony was limited, I have no problem, in terms 25 of the specific areas.
m U
1 1
1 1
2337 3$ ) 1 JUDGE LAZO: We're going to make sure it is so 2 limited.
(} 3 MR. GEHR: Which is precisely the reason that the 4 objections are not proper until the question is stated.
5 And I wish that rule could be observed.
6 I'll start over again.
7 MS. BERNABEI: Mr. Chairman, just to make sure 8 I understand, you said that the general outline or the gen-9 eral provisions being considered can be asked about, but 10 not the specifics of the negotiation, if I understand your 11 ruling.
12 JUDGE LAZO: That's correct.
13 *MS. BERNABEI: Thank you.
G 14 BY MR. GEHR:
15 Q Is it not true, Mr. McCain, that during the course 16 of the negotiations between the Arizona Municipal Water Users 17 Association and the APS and Salt River Project that the Ari-18 zona Municipal Water Users Association made --
19 MS. BERNABEI: I object again. He's getting into 20 the specifics of the negotiations, I believe. He's not ask-21 ing about the areas discussed.
22 JUDGE LAZO: Ms. Bernabei, let counselor ask his 23 question.
24 BY MR. GEHR:
25 Q Did not the Arizona Municipal Water Users
2338 i
() 1 Association include in its proposals to furnish on a firm 2 supply basis, not subject to Section 21, a minimum of 78,000 3 acre feet per year?
4 MS. BERNABEI: I'm going to object to the ques-5 tion as getting into the specifics of the negotiations.
6 It goes beyond the ruling of this Board that tne subjects 7 can be inquired into, the specifics of the negotiations can-8 not.
9 MR. GEHR: May I --
10 MS. BERNABEI: I believe with Mr. Hulse, he out-11 lined the general areas. He did not get into what was of-12 fered or what were the counter-offers or what the specifics 13 were of either one.
14 I believe it is proper to ask about the general 15 areas of negotiation. But beyond that we were not allowed i
l 16 to go with Mr. Hulse, and I don't believe we should be al-17 lowed with this witness.
18 MR. GEHR: May I respond?
19 JUDGE LAZO: Yes, you certainly may respond.
20 MR. GEHR: Mr. McCain has made a special point 21 of calling on Section 21 as the only basis on which he ex-22 pressed the opinion that there is not an assured supply of l
23 effluent for the Palo Verde plant. And I think it's very
() 2,4 pertinent for the Board to know that when the discussions 25 took place, they were concerned primarily not with the p)
~
2339 amount required for Palo Verde, but the amount of ef-(]) I 2 fluent required in excess of the amount required for Palo 3 Verde.
4 MS. BERNABEI: I'm not sure that those were the 5 substance of discussion. And I think it's highly improper 6 for Mr. Gehr to be representing what was going on when this 7 Board has explictly rule that witnesses may not testify about 8 that.
- 9 I highly suspect the different participants in those 10 negotiations, from my information, would have a different 11 idea than Mr. Gehr. But I don't think it's proper in any 12 case for him to testify, and then to probe into the speci-13 fics of the negotiations when specifically all that was al-0 14 lowed with Mr. Hulse was a general outline of the things 15 discussed. I don't believe the specifics of the offers and 16 counter-offers are a proper subject.
17 MR. GEHR: I am not proposing to ask any more-18 questions except that single one with respect to the negotia-19 tion.
20 MS. BERNABEI: I believe that goes beyond the 21 scope of this Board's ruling.
22 (Pause.)
23 JUDGE LAZO: Mr. Gehr, the matter which you are
() 24 attempting to raise where you referred to the amount of ex-25 cess, is that an item in the present agreement?
O
1 2340
() 1 mR. GEHR: The present agreement calls for a total 2 amount of 140,000 acre feet committed for electric genera-r~T 3 tion.
V 4 JUDGE LAZO: That's right. That was --
5 MR. GEHR: Palo Verde units are only going to take 6 up perhaps 64,000 or some number in that neighborhood, perl 7 year.
8 And the point I wanted to address, that the nego-9 tiations were proceeding on the basis that the supply of 10 effluent required for Palo Verde was to be a firm one and 11 not subject to Section 21.
12 MS. BERNABEI: I think this is highly improper, 13 for Mr. Gehr to be representing what happened in those nego-(O~/ 14 tiations when the witnesses have not been allowed to talk 15 about it. When Mr. Hulse was here as a witness, the Board 16 inquired -- not counsel. The Board inquired, in very gentle 17 and tentative terms, about the substance of the negotiations 18 in the areas that were discussed. And I believe they said 19 they did not want to get into the specifics of the negotia-20 tions. I think it's highly improper for Mr. Gehr to repre-21 sent here today -- and I believe he has been a participant 12 in some of these -- what his opinion is of what was at stake 23 in those negotiations. From my information, other people
( 24 would have different ideas.
25 JUDGE LAZO: This matter was not included among
()
2341
() I the general items that were listed in Mr. Bill Stevens' 2 letter to the Board where he listed the items that were un-t 3 der considseration for renegotiation. And I think we --
4 MR. GEHR: May I make one statement, please, be-5 fore you continue?
6 JUDGE LAZO: All right.
7 MR. GEHR: Mr. Stevens' letter mentioned Section 8 21.
j 9 JUDGE LAZO: Surely.
10 MR. GEHR: Certainly. And it's very important 11 that the Board understand that Section 21 in the contract 12 requires that Section 21 can only be implemented if the ef-13 fluent, excess effluent, is used before it is implemented.
O 14 I think it's very important. And the Board is left without 15 an adequate basis for considering the impact and significance 16 of Section 21 if we don't know what the cities are willing 17 to do with respect to Section 21.
18 Now, if it means putting Mr. Hulse back on the 19 stand and inquiring specifically so he's available for cross-20 examination, I'm willing to do that. But we have come now 21 to where this witness has based his statement, his opinion, 22 that there is not an assured supply solely on the presence 23 of Section 21.
() 24 MS. BERNABEI: I believe that's a mischaracteriza-25 tion. He has not said that is the sole basis. He has said i O
- t>
2342 I that is one basis.
)
2 What Mr. Gehr is talking about here --
em 3 MR. GEHR: I'm being interrupted again here.
v 4 MS. BERNABEI: Well, I think it's a mischarac-5 terization.
6 MR. GEHR: Just a minute now. Do I get a chance to 7 complete my statement?
8 JUDGE LAZO: Yes, sir, you do.
9 MR. GEHR: Thank you.
10 This was the witness's statement on page 2198 of 11 the transcript yesterday afternoon. The question starting 12 on page 2197, "As a representative of the cities, do you 13 believe that this contract provides an assured supply of
- 14 water to Palo Verde?"
15 "No."
16 "Can you explain your opinion?" -
17 -
"I believe it does not provide an ensured" -- I 18 think he said " assured" -- supply of water to Palo Verde 19 because of the existence of Section 21 which, during times 20 of critical need, allows a city to withdraw the effluent."
21 That was his testimony, and that was the basis 22 for hls opinion. Now, I think I'm entitled to show that 23 the cities, knowing thut they have got more than enough ef-
) 24 fluent to handle Palo Verde, are willirn to make a firm com-25 mitment. I won't get into the other terms. I said 1 Lould o
)
sj
2343
() I would not. A firm commitment not subject to Section 21.
2 MS. BERNABEI: I think if Mr. Gehr's representa-3 tions are correct, they would have put it in the contract.
~S
%-)
4 These are negotiations he's talking about, and I'm not sure 5 it's a correct characterization of those negotiations. We 6 have a contract. We have been discussing the contract, the 7 provisions of the contract. We are not discussing specu-8 lative and conjectural negotiations that at this point are 9 at a dead end and have been taken over by the Chief Execu-10 tive Officer of APS and the mayors or city managers. We 11 are talkling about some stage in those negotiations which, 12 as I understand it, have reached a dead end. And there is 13 no firm commitment by the cities to do anything.
O i
\> 14 What we do have as a firm commitment by anyone 15 is the contract that is currently effective. And people's 16 talk and discussion about what they think the contract means 17 and how they intend to act on it. And I think that's what 18 Mr. Hulse testified to, and I think that's what Mr. McCain 19 testified to. Negotiations are totally conjectural and 20 speculative at this point. .
21 And, obviously, if there was a firm commitment 22 by the cities, Mr. McCain could have talked about it. It 23 would be put in the contract, in a different contract.
() 24 It is not at that stage. And since Mr. Hulse did 25 not want to talk about the specifics of negotiation, and O
2344
( )l0 1 people were understandably tentative or hesitant to get into l 2 them, I don't think Mr. McCain should be forced to talk 3 about them.
(}
4 MR. GEHR: We are getting a different argument 5 now, a different basis for the objection. Before, she ar-6 gued that she wasn't permitted to cross-examine Mr. Hulse.
7 And I offered to put him back on the stand.
8 9
10 11 12 13 O 14 15 16 17 18 19 20 21 22 1
23
- () 24 i 25 0
2345 O I
() JUDGE LAZO: Mr. Gehr it is quite true that we 2 did not get into the specifics of the negotiation. We i
Q 3 thought that this was a matter that we really did not want 4 to hear about. This was a private matter between the cities 5 and the people with whom they were negotiating and with 6 the Applicants.
7 The offers and counter-offers that went on in 8 those negotiations are really none of our business at this 9 point.
10 MR. DEWEY: It may establish the state of mind II of the cities to be able to provide effluent. It seems 12 that might be a very important element in this case, however.
13 MS. BERNABEI: I believe that is totally irrele-p t ( ,/
14 vant. We have a contract. We have an idea of what the 15 cities feel about the contract and their duties and respon-16 sibilities under the contract. I think that is as close 17 to what Mr. Dewey wants as we can get.
I8 MR. DEWEY: The cities believe that they actually 19 can supply Palo Verde with a guaranteed source of effluent.
20 I think that is an important matter for this hearing.
21 There has been no testimony on that.
MS. BERNABEI:
22 point. That is pure conjecture on both Mr. Dewey's and 23 Mr. Gehr's part. If they can prove that through a witness l
O 24 or through a contract or through some other commitment by 25 But there is not any right now.
the cities, that is fine.
O
2346 orua: ne wee O I na vou neve soe ar acc in-2 present at the negotiations.
l 3 JUDGE LAZO: Well, it appears, then, that this 4 goes to the heart of the case. We had better overrule the 5 objection.
6 MS. BERNABEI: Well, for the record, then, I 7 would like to put on the basis of the objection that one, we 8 were not allowed to question Mr. Hulse as to the details of 9 the negotiations in part because it involved parties' and 10 private parties' negotiations with their attorneys. Two, 1I I do not think it is relevant in terms of either the mind set 12 of the City until it is encompassed in a legal document, an 13 executed legal document. And three, it is basically some-0 14 thing that we have been told throughout the hearing we are 15 unable, and I say "we" -- the Intervenor has been unable to 16 inquire'into.
17 MR. DEWEY: I do not specifically remember 18 Ms. Bernabei asking Mr. Hulse specifically about any areas I9 of the negotiations.
20 MS. BERNABEI: I specifically did not ask him 21 because the Board indicated that they would question 22 Mr. Hulse, and they did it somewhat hesitantly, and they 23 said that they would only inquire into specific areas that O 24 were meyotieted, not into the egecific negotiations.
25 MR. DEWEY: I~believe the Applicant has also O
2347 1 offere.'i to allow Mr, Hulse to be cross-examined on this point 2 if you feel like you are being prejudiced.
Q 3 MR. GEHR: I affirm that.
4 MS. BERNABEI: I do not believe the negotiations 5 are relevant. If it had reached the point that it was en-6 compassed in some legal document or some legal commitment, it 7
would be.
8 MR. LAZO: Well, your objection is noted for the 9 record.
10 You may proceed.
II BY MR. GEHR:
12 Q Can you answer the question now, Mr. McCain?
13 A Your Honor, I was informed by my attorney and my I4 boss, Mr. Bill Stevens, that because I was a participant on 15 the part of the negotiating team of the cities that because 16 of that I may fall into the attorney-client privilege. I 17 do not know what that necessarily means because I am not 18 That has been brought out.
a lawyer.
I9 But because I was a part of the negotiating team 0
for the City under the direct supervision of Mr. Stevens,
' that the attorney-client privilege extends ot me as well.
22 You have been instructed by your JUDGE LAZO:
23 employer not to discuss the negotiations?
O 24 THE WITNESS: Said they felt that would be an 25 improper subject because of the possibility of attorney --
O
2348 O i hie fee 11ne thee 1 wou1a be covered by the eetorney-c11ene 2 relationship.
3
] 4 JUDGE LAZO: Well, we have grave doubts about that. Nonetheless, we are hesitant to order you to answer.
5 Mr. Gehr, do you want to put Mr. HuAse back on 6 the stand?
7 MR. GEHR: I think I shall do so. I do not want 8 Mr. McCain to be fired by his boss for disregarding his 9 orders.
10 No, I do not believe the attorney-client privilege II can possibly extend, but be that as it may, I will not re-12 quire an answer.
I3 JUDGE LAZO: Very well, Mr. McCain, you need not O 14 answer the question.
15 MS. BERNABEI: For the record, I would like to 16 note my objections. If the Applicant put Mr. Hulse back II on to talk about negotiations, we have no opportunity to I8 question anyone about the substance of those negotiations.
I' Obviously --
0 JUDGE LAZO: You can question Mr. Hulse.
I MS. BERNABEI: Well, an opposing party with his 22 own interpretation. We obviously cannot put on any represen-23 tative of the cities or any other participant in those ne-O 24 gotiations, and I think that is very unfair when the Board 25 has indicated it will not force Mr. McCain or Mr. Stevens O
2349 to testify at the same time the Applicants are giving their
({} t 2 interpretation of negotiations.
, 3 It puts us in an untenable position where we
(~s) s cannot get our witnesses to talk about it, and yet the Appli-4 5 cants can put on the record whatever they want. I think 6 under these circumstances, this subject should be off-limits 7 to everyone, since there is no possible way that we can get 8 u information or what we believed happened at those in o*r i
9 negotiations. Cross examination is simply insufficient.
10 I think this is really -- to add one thing, this it is really sort of the heart of the matter, why these nego-12 tiations were not brought up in the first place, that it is 13 very hard to get evidence about them because people are very 14 reluctant to talk about them, unless they do so in a self-l 15 serving way.
16 MR. DEWEY: Mr. Hulse will be under oath. He 17 can be cross-examined at that time. I do not understand why 18 Mr. Hulse under oath would not be expected to tell the truth.
19 MS. BERNABEI: I would also like to say for the l 20 record --
21 MR. GEHR: I think it is premature to argue about 22 it.
23 JUDGE LAZO: We will take it under consideration.
() 24 Do you have any further cross examination of 25 Mr. McCain?
)
l
2350 O i aa. Gena = ve=, t do.
2 BY MR. GEHR:
3 Q How many wells, if you know, are operated by the 4 City of Phoenix in total?
5 A The City of Phoenix Water Department has approxi-6 mately 130 wells. I am not including wells owned by the 7 Parks Department which are used to fill swimming pools, but 8 this is the Water Production Division, the domestic supply.
9 Q How about the City of Scottsdale?
10 A Nineteen.
II Q Pardon me?
12 A Nineteen.
33 Q Nineteen. The City of Tempe?
' O 14 A Nine.
15 Q The City of Mesa?
16 A Twenty-two.
17 The City of Glendale?
Q 18 A Seventeen.
19 Q And if you know, the town of Youngtown?
20 A I do not know.
21 Q In your testimony you discussed potential ex-22 changes for non-Indian agricultural.
23 A Yes.
24 Q One of the potential exchanges you indicated was an exchange with the Roosevelt Water Conservation District?
O
2351
() 1 A There has been some talk of that, yes. It has 2 not progressed beyond the talk stage. Do not get the impres-(} 3 sion that talk between the parties involved -- I mean, when 4 I say " talk," I mean discussion amongst the cities about that 5 is a possibility.
6 0 IIas that discussion been carried on by the cities 7 and not by the Water Users Association?
8 A Both.
9 Q Did the Roosevelt Water Conservation District 10 participate in those discussions?
II A No.
12 Q No proposal was made either way to the Roosevelt 13 Water Conservation District?
O 14 A No, it was not.
15 O Did you indicate what the source of the effluent 16 or that exchange, if it were to take place, would be?
17 A It would be an East Mesa plant if an East Mesa 18 plant were built.
19 (Pause.)
20 Q Can I direct your attention to page IV-2 of 21 Applicant's Exhibit LL.
22 (Witness turns to page IV-2.)
23 A Yes.
() 24 Q Next to last paragraph on that page, it refers 25 to -- it states, "If satellite plants are built in East O
i 2352 O ' neee, end sees on -- is thee the grosgeceive g1ene ehee 2
would furnish effluent in exchange with the Roosevelt Water 3
Conservation District?
4 A That is the one that has been discussed as a pos-5 sible reuse of effluent.
8 0 You also mentioned potential exchange with the Roosevelt Irrigation District.
8 A Yes.
O If'any such exchange took plzce, would it be from 10 the 23rd Avenue Plant?
II A That is my understanding.
12 Q Is that because the Roosevelt Canal originates II very close by? Is that correct?
O i4 A That is certainly one of the considerations.
15 Q Also that is where the percolating Bower or I
whatever unit is?
A The experiments were in that area, yes.
Q Does the Roosevelt Irrigation District have a con-I' tract to purchase effluent from the City of Phoenix at the 20 23rd Avenue Plant?
A Yes.
22 Q Do you know when that contract was entered into?
23 A I cannot give you a date.
O- 24 Q Would it be five years ago or six years ago?
25 A Sometime after 1973, I believe.
O
2353 I Q Yes, it was. (Laughter.)
2 Are not the rights of the Roosevelt Irrigation O $
oiserice uaaer enee coatrece sua1or to --
4 MS. BERNABEI: Objection. Here he is talking 5 about legal rights. He has objected that this witness is not 6 a lawyer. He is talking about commitments.
7 MR. GEHR: I will withdraw the question.
8 JUDGE LAZO: Very well.
' 9 (Pause.)
10 BY MR. GEHR:
II Q Has this contract ever been implemented?
12 A No.
33 Q How much effluent does the contract provide for 14 sale, if you know?
15 A Not in acre feet, but I did see a number in here:
I l 16 17.9 mgd's. I cannot remember what it was right now.
l 17 would you believe that number is approximately 0
38 20,000 acre feet per year?
19 I think that is perhaps a good estimate.
A 20 Do you know why it has not been implemented?
0 21 A Yes.
22 0 Why?
23 A My understanding the reason it has not been 24 implemented is that the use thatthe Roosevelt Irrigation 25 District would like to make of the effluent demands that l O l
2354
() I the effluent be treated -- that the effluent go on under 2 additional treatment. That is, the effluent from 23rd is 3 not suitable for the agricultural uses that they would like
[)
4 to make of it.
5 Q Was it not contemplated that the effluent supplied 6 under such contract would be treated through this percola-7 tion and the soil method or the Bower method?
8 A That has -- I am not sure if that is in the con-9 tract. I have not read the contract. But clearly, it ap-10 pears that that would be the way to treat that effluent to 11 make it suitable for the agricultural uses RID wishes to 12 make.
13 0 Under that contract, who would bear the cost of O 14 such treatment?
15 MS. BERNABEI: Objection. He said he has not l 16 read the contract, and now he is being asked to interpret it.
17 MR. GEHR: If he knows.
18 MS. BERNABEI: I think from both ways it is im-19 proper. He says he has not read it, and he has asked for a 20 legal interpretation of the contract.
21 MR. GEHR: That is not a proper -- I asked if he 12 knows, and if he knows, he can answer. If he does not know, 23 that takes care of it.
24 MS. BERNABEI: That is an interpretation of a 25 contract.
l i
l 2355 3
MR. GEHR: That is not an interpretation.
2 JUDGE LAZO: I will overrule the objection.
3 THE WITNESS: The contract is between Roosevelt 4
Irrigation District and the City of Phoenix. I would presume 5
it would be one of those two entities. I do not know for 6 sure. I could guess, but I do not know.
7 BY MR. GEHR:
8 0 Do you know which one does not want to pay the 9 cost?
10 MS. BERNABEI: Objection. This calls for sheer II speculation.
12 MR. GEHR: No, I am asking if he knows which one 13 does not want to pay the cost, or either, or both.
O I4 MS. BERNABEI: I am going to object that the IS question is speculative.
16 JUDGE LAZO: 'I th6ught he said he did not know.
17 MR. GEHR: No, he said that one or the other --
II JUDGE LAZO: Right.
I9 MR. GEHR: -- would pay it, and I am wondering who 20 does not want to pay it, whether the City does not want to 21 pay it or the farmers do not want to pay it.
22 MS. BERNABEI: I object to the question as asked.
23 It calls for speculation on the part of the witness.
O 24 JUDGE LAZO: We do not know that. He may know.
25 MS. BERNABEI: He did not say, I do not believe, O
2356 1
() I that one of the parties did not want to pay it and that is 2 going to determine the party that is going to do it.
3 JUDGE COLE: I would assume neither one of them
(]}
4 wants to pay for it, so I do not know what the answer would 5 be.
6 (Laughter.)
7 BY MR. GEHR:
8 Q But basically, is it not true that it is the cost 9 for the treatment that has resulted in its not being imple-10 mented?
11 A I do not really know if that -- to imply that that 12 is the reason. Economics. cost considerations are always 13 a consideration. But I do not know if that is the real O 14 reason, the major reason, I mean,-
15 Q Do you know of any other reasons?
16 A Perhaps the process itself -- there are some ques--
17 tions about whether it could actually work. I do not know 18 for sure.
19 Q Would it possibly be that RID does not really 20 need the water?
21 MS. BERNABEI: Objection. This really does call 22 for speculation. This is the third time he has asked the 23 question.
P)
(_ 24 MR. GEHR: On speculation, this man speculated 25 about many, many things.
O
2357
( I MS. DERNABEI: He is asking about a contract that 2 has not been implemented and why it has not been implemented.
() 3 I think he has asked this question four or five different 4 ways.
5 JUDGE LAZO: He just said there may be other 6 reasons, and now he is going to ask about those reasons.
7 You may answer.
8 THE WITNESS: It is entirely possible that RID 9 may feel that they do not need to purchase that particular 10 amount of effluent. They may feel that they have an adequate II water supply that they transport under the Salt River Pro-12 ject about 140,000 acre feet per year.
13
///
[]) 14 IS
- 16 17 18 19 20 21 22 23 24 25 O
'h 1 BY MR. GEHR:
2 Q In their concern, if there was concern about the g 3 adequacy of the tertiary treatment, would that arise because 4 it would impact the farming patterns within the Roosevelt 5 Irrigation District?
6 A I do not know what the farming or cropping pat-7 terns are within the Roosevelt Irrigation District. But 8 that would be my presumption: that in order to use effluent 9 of the non-tertiary level, that they may have to change 10 crops.
11 Q In the propose allocations of CAP water, is it 12 proposed that any CAP water would be allocated for munici-13 pal and industrial uses within the Salt River Project boun-0 14 daries?
15 A Population on lands -- Let me put it this way.
16 CAP water was not allocated for use by people or industries 17 on lands within -- on member lands of the Salt River Pro-18 ject.
19 Q Do you know of any explanation for that position?
20 A The explanation given is that Salt River Project 21 lands, because they are urbanizing and because of their sur-22 face water rights, that it was determined that they most 23 likely will not need Central Arizona Project water.
h 24 0 Yesterday when you were testifying about exchanges 25 with Indians --
O -
2359
() 1 A Yes.
2 0 -- you indicated, I believe, that there was
(} 3 this -- I think you would have classified it as an institu-4 tional restraint?
5 A That is a phrase I have tried to get away from 6 since I left the university.
7 Q Well, good.
8 But you indicated, I believe,'that in order to 9 make an exchange -- that if an exchange were made for Indian, 10 first-priority water for effluent, that the cities, and I'm 11 speaking now about one of the five that are represented by 12 the Water Users Association, not to be confused with Salt 13 River water, the Arizona Water Users Association, would only O 14 receive somewhere, I believe you said, less than 30 percent 15 of the firm CAP water?
16 A If the exchange was to take place, as Mr. Steiner 17 proposes it, through the pooling concept, the city or any 18 city that would contribute effluent to the exchange would 19 get back considerably less in potable water than they would 20 offer effluent in exchange. The rough ratio is less than 21 three to one.
22 Q In addition, would the city who made the exchange 23 be required to construct the facilities to get the effluent 24 to at least the point of delivery of the CAP water or the 25 point of use desired by the Indians?
O 1
l
2360
() 1 A That is undetermined at this point in time. We 2 don't know.
3 Q What are the conditions, if you know, on which
[}
4 the mandatory requirement imposed by the Secretary of In-5 terior on Indian CAP water to accept effluent in exchange?
6 MS. BERNABEI: Objection. I think the question 7 is unclear and speculative.
8 BY MR. GEHR:
9 Q Do you understand the question, Mr. McCain?
10 A It is a bit unclear, sir.
11 Q All right, we'll rephrase it.
12 A I'm not sure what, you know --
13 MR. GEHR: Just"a moment, please.
14 JUDGE LAZO: Sure.
15 (Pause.)
16 BY MR. GEHR:
17 Q Mr. McCain, I hand you a document which is Joint 18 Applicants' Exhibit Q, being the Final Environmental Impact 19 Statement, Water Allocations and Water Service Contracting, 20 Central Arizona Project. I direct your attention to page 21 72 thereof.
22 A My recollection is that these are terms that are, 23 I think, contained in the Indian CAP subcontracts.
() 24 Q Would you read that quotation -- I believe it's 25 a quotation --
O 1
2361
() 1 A Yes.
2 0 -- on that page, which purports to be the criteria 3 for what?
(])
4 A Well, it appears to be the criteria -- at least 5 some of the criteria -- for the exchange.
6 "A) That the delivery facilities are equivalent 7 to CAP facilities; B) that the supply is available in com-8 parable quantities at the time and place of need; C) that 9 the quality of the water meets all applicable regulatory 10 requirements including but not limited to those relating 11 to treatment and delivery; and D) that the water shall be 12 of a suitable quality for the beneficial uses under a rea-13 sonably diversified cropping pattern customary for lands 14 of like character in the region."
IS I don't know what that says, sir.
16 Q I won't ask you to interpret it.
17 To provide delivery facilities that are equivalent l
18 to CAP facilities will require the incurrence of costs, will 19 it not?
20 MS. BERNABEI: I believe the witness has testified 21 he doesn't understand the criteria.
l t
l 22 MR. GEHR: I'm asking this one criterion?
23 BY MR. GEHR:
- 24 Q Do you understand that criterion?
25 A Well, the reason I said I did not understand it A
V l
l
2362 p)
(_ I is because I don't know what CAP facilities they are talk-2 ing about. Are they talking about the main ageduct system?
{} 3 4
Or are they talking about the agricultural distribution sys-tems, which may be a Model-T form a distribution system 5 rather than a Cadillac form of distribution system?
6 Q Okay. But in either case, whether it's a Cadil-7 lac or a Model T or it's an ageduct, it involves -- the pro-8 vision of those facilities involves costs, does it not?,
9 A es, it does.
10 Q And it's my understanding that these criteria 11 would impose these costs on the party who is making the ex-12 change of the effluent.
13 A Those costs would not be borne by the Indians.
U,_s 14 Q Okay. That we can accept, can't we?
15 A Yes. Whether they would be borne by the cities 16 or whether they would be borne by the state, or whether they 17 would be borne by the Central Arizona Water Conservation 18 District, that's undetermined at this point in time.
19 Q In other words, if they are not borne by the city 20 that wants to make the exchange, if it wants to -- and you 21 have discouraged me with your three-to-one ratio or one-to-22 three ratio --
23 A That is better than going to the expense of making
,_/ 24 an exchange and not increasing your total water supply at 25 all, which is the other option that the cities are faced D
O
2363 1 with.
2 Q That's true. Let a start again now on a question.
3 If the city who wi;...es to make the exchange of 4 effluent for CAP, firm, first-priority CAP Indian irriga-5 tion water, Indian water, is unwilling to bear the cost, 6 then obviously to make the exchange work it will be necessary 7 to get the state or the -- what did you call it, the Cen-8 tral Arizona Conservation District?
9 A Water Conservation District.
10 0 That district operates CAP for the -- Is that cor-11 rect?
12 A That hasn't been really determined, whether it s 13 will operate CAP. It's the assumption it's the repayment 14 organization.
15 Q Okay. Or the federal government would pay those 16 costs. Is that correct?
17 MS. BERNABEI: I'm going to object to this.
18 THE WITNESS: Those are possible sources.
19 MS. BERNABEI: This is calling for speculation 20 on the part of the witness of who is going to pay the costs.
21 This is precisely what Mr. Gehr objected to in terms of this 22 witness's testimony about other possibilities.
23 MR. GEHR: And it covered all the possibilities.
24 MS. BERNABEI: Well, that's not clear. And that's 25 not what this witness answered. He said all those were O
2364
) 1 possibilities. Mr. Gehr said, "Were these all the possi-2 bilities?" There may be other possibilities. Mr. Gehr is
() 3 testifying --
4 MR. GEHR: Are there other possibilities? He 5 listed them. I thought he listed all of the possibilities.
6 THE WITNESS: There is a possibility, I presume, 7 that there might be a new organization formed --
8 MR. GEHR: Okay.
9 THE WITNESS: -- to handle the effluent ex-10 changes -- I mean, handle the costs involved.
II And there is even a possibility, though remote, 12 that the Indians may contribute to this.
13 So there are other possibilities.
O 14 BY MR. GEHR:
15 Q Now, have we named them all?
16 A Probably not.
17 Q Well, come on, tell me some more.
18 A I was going to say: probably not, but I can't 19 think of any more at this point in time.
20 Q All those that you can think of would require 21 agreement by someone other than the city if the city was 12 unwilling to make it, would it not?
23 A Agreement between --
24 Q The party that agrees to pay the cost, whether 25 it's the federal government, the Indians, the new entity,
2365 I the Central Arizona Water Conservation District, the state.
(])
2 A I mean, but the agreement between -- for making 3 the cost in the city?
4 0 Well, the city is going to supply the effluent, 5 isn't it?
6 MS. BERNABEI: This appears to be a rather unclear 7 question.
8 THE WITNESS: Well, that's what I was trying to 9 get at, in a sense.
10 When you say " agreement," do you mean the agreement 11 between, for instance, the CAWCD and the Indians? Or the 12 agreement between the CAWCD and the city?
13 BY MR. GEHR:
OA/ 14 What I'm saying is that in order to effectuate, Q
15 to implement an exchange agreement with the Indians, it will 16 be necessary to resolve by some agreement with somebody who .
17 perhaps is not even involved in the exchange to agree to 18 bear the costs.
19 A There must be cost-sharing agreements developed.
20 Q Are you saying the city will not pay the costs 21 without a cost sharing?
22 MS. BERNABEI: Objection. That's not what he has 23 testified to.
() 24 THE WITNESS: I am saying that if a city goes out 25 and does the exchange itself, it certainly will expect to O
2366
() I bear all the costs involved and would presume to receive 2 all of the benefit from the exchange.
. 3 But as I have pointed out, Mr. Steiner has recom-4 mended to the Secretary that he close that particular option, 5 or that that particular option be closed.
6 If, on the other hand, a city exchanges effluent 7 through the pool as proposed by Mr. Steiner, the city cer-8 tainly expects to be compensated somehow for either the 9 value of the raw sewage,which may be sold to some other 10 entity to treat and then deliver; or it expects to'be compen-11 sated for the value of treated effluent, which 12 is then sold to another entity for either further treatment 13 or delivery. Or if the city treats it to its required level
\ 14 and delivers it itself, it expects to be compensated for 15 those costs involved. The means and mode of compensation, 16 as the document on the CAP Environmental Impact Statement 17 points out, have not yet been determined.
18 19 20 21 22 23
() 24 25
2267 g
BY MR. GEHR:
2 Q Has the Arizona Municipal Water Users 3 Association prepared any position papers or taken a position G
V 4 in any way on how that should be done?
5 A We made a statement before the Central Arizona 6 Water Conservation District when they were considering 7 whether or not to accept -- I guess accept Mr. Steiner's 8 recommendation, or at least okay, it and send it on to the 9 Secretary. We did make a statement before the Board that if 10 the cities are forced to exchange their effluent through the 11 pool, that we certainly expect that the Central Arizona 12 Water Conservation District is the most appropriate entity
!O i3 to aandte tue exon ase, ead enee we exeeot en t the Ceaer 1 14 Arizona Water Conservation District will in fact be the 15 entity that will treat and deliver ef fluent to the cities.
16 The clear implication there is that they would
- 17 purchase from the cities raw sewage, and collect it, or -- to 18 take it to a treatmaat point. We did make that statement in 19 public hearing.
20 Q Do you know if the Central Arizona Water 21 Conservation District is authorized to do any such thing,
,g 22 or do they have any such facilities?
23 A The Central Arizona Water Conservation District 24 is not authorized to do that. To do that, it is most likely 25 that they would have to be authorized by state legislation,
2368 1 and what was the other question, or was there?
13, 2g 2 Q Whether they had any facilities?
3 A No, they have -- no, they obviously, then -- they 9 4 are not presently authorized to do that. They do not have 5 those facilities. I do believe that they would need some 6 statutory authority.
7 Q Would you say that as things stand now, the 8 prospects of affecting Indian exchanges, exchanges of 9 ef fluent with Indians is not very likely?
10 MS. BERNABEI: Objection. It calls f or 11 spe cu lation . The prospects of who, what, who thinks what.
12 He is talking about the cities' viewpoint? I think it 13 calls for speculation.
14 JUDGE LAZO: He can express his opinion.
15 -
MS. BERNABEI: As to the prospects for Indian 16 exchanges, on anybody's --
17 MR. GEHR: Exactly.
18 MS. BERNABEI: Anybody's opinion on that?
19 JUDGE LAZO: Not anybody's opinion. This 20 gentleman is testifying as an expert. In his direct 21 testimony, he spoke of many, many uncertainties, and Mr.
llh 22 Gehr is entitled to ask the question, to see if Mr. McCain 23 has an opinion.
lll 24 THE WITNESS: Repeat?
25
{"Tl 2 O In your opinion, with the present state of things, 3 meaning the proposed allocations and the proposed exchange 4 formulas that h'"re been -- or are being considered, and 5 assuming those go into effect, do you consider the prospect 6 that there will be exchanges of effluent with Indians 7 effectuated?
8 A The last word?
9 Q Ef f ecuated .
10 A When?
11 Q At any time, as long as those restraints, the 12 three to one ratio, the cost problem?
l 1
() 13 A I expect the exchanges with Indians for a 14 portion of their CAP water to become absolutely necessary.
15 The question is when. I do not know. As I testified, there 16 is some dispute on that. Granted, there are numerous i
17 problems involved, and agreement has not yet been reached.
18 But, in Arizona, as you well know, where water is a precious 19 commodity, exchanging effluent for potable water makes only 20 good management sense, and it will be done. Not withoet 21 dif ficu lty, but it will be done. I am fairly confident of
() 22 that.
23 0 In other words, these contractual restraints, the
(]) 24 allocation restraints that you referred to, which relate 25 specifically to exchanges with Indians, the authorization to -
l -
1
2370 4 1 of the Central Arizona, which is another -- Arizona Water 2 Conservation District to purchase raw sewage and treat it, 3 those are all kinds of restraints which you are confident O 4 that sometime those restraints will be dealt with, is that 5 what you are saying?
6 A I am confident that there will be -- let me put 7 it this way, there will be attempts to deal with those 8 constraints, or restraints, and I feel at this point in time 9 that it will be successful. In other words, I believe 10 exchanges with the Indians will be effectuated.
11 0 All right. In other words, does that apply to 12 all of the institutional restraints, that when the water .
O 23 becomes imgoreene enoush, that alt the institutional
. 14 restraints will disappear, and we will somehow get water?
15 MS. BERNABEI: Objection. That is not what this 16 witness has testified to, that the institutional restraints 17 disappear. It is a rhetorical characterization that is 18 totally misleading and inaccurate.
I 19 JUDGE LAZO: All !.of those?
l 20 MS. BERNABEI: At least two o f those. It is
(
l 21 rhetorical and inaccurate.
O 22 MR. cEaR: I didn.e say that he hae eese1fied to 23 that. I asked a question. I think he is required to answer 24 Q the question.
25 MS. BERNABEI: The implication of the question was
2371 5 1 that he had just said with regards to Indian exchanges that 2 all 'the institutional constraints he had talked about would 1
3 disappear. That is not what he said, and that is the 4 implication of Mr. Gehr's question. If he asked another 5 question, it would not be objectionable.
6 JUDGE LAZO: I think we agree. You can rephrase 7 the question, Mr. Gehr.
8 MR. GEHR: It is not worth it. I think the 9 substance of it is quite clear.
10 I will go on to something else.
11 BY MR. GEHP,:
12 Q Is it not true under the state groundwater code
() 13 that the cities can pump as much water from the ground as is 14 required, needed?
15 A Under the terms of the groundwater code, the 16 cities have a right in terms of a service area right, to 17 withdraw f rom any one particular service area well the 18 amount of groundwater that is needed to supply its customers 19 in consideration of conservation requirements that will come 20 down.
21 Q When we were -- when you were discussing the CAP,
([) 22 one of the uncertainties you mentioned was that there was a 23 large sum of money required, large amount of funding 24
({) required to complete the project, is that correct?
25 A There is a large amount of money that is --
6 2372 1 appears to be required to be raised within this state to 2 complete the Central Arizona Project, and all the features 3 defined in that project, by the year 1992.
( 4 0 Very well. What portions of the CAP project are 5 you referring to? Are you referring to the Granite Reef 6 Aqueduct?
7 A I am referring -- you mean, is that included in 8 what I referred to?
9 0 Yes.
10 A Yes, the Granite Reef Aqueduct is part of what 11 is considered the Central Arizona Project.
12 0 And what is its status of construction now, if
() 13 you know?
14 A In terms of the aqueduct itself, I am not sure 15 how much of it is completed. It is virtually completed.
16 What they are working on now are the pumping plants.
17 0 What -- how much, if you know, how much funding 18 is required to complete the pumping plants?
19 A I do not have that figure broken down.
20 0 Is it -- well, let us go into some of the other --
21 what are the other portions of the CAP project for which this,
(]) 22 I think you said $2 billion?
23 A That is what the Governor and Mr. Steiner have 24
(~) estimated its cost.
25 Q And what elements of the project are covered by
2373 7 1 that?
2 A There is the completion of the aqueduct to 3 Tucson.
4 Q To Tucson? '
5 A To Tucson.
6 0 Well, is that two aqueducts? Is that one from 7 the --
8 A Excuse, me. There are three aqueducts. They 9 are all connected, but they are all assumed -- there are 10 different portions.
11 Q Yes.
12 A, And so that is completing it to Tucson. The
() 13
~
Tucson aqueduct does not start at the Colorado River. It 14 starts near Picacho.
15 0 All right, that is the Tucson aqueduct.
16 A Yes.
17 0 What about the Granite Reef to Picacho?
18 A That is the Salt Gila aqueduct, and that is in 19 the process -- it is partly constructed.
20 0 Is the completion of that within the $2 billion?
l 21 A Yes.
22
(]) Q Okay, what else?
23 A The completion of the Granite Reef aqueduct, the
() 24 operations building for the Central Arizona Project.
25 0 All right.
l
2374 8 1 A Waddell Dam, on the Agua Fria, which will' O 2 gravide reguietory storege spece eer the Centre 1 Arizone 3 Project. And then -- oh, Cliff Dam on the Verde. A new or O 4 modified Rooseve1e Dem on the Sett. soth those deme, it is 5 presumed, will be constructed or modified, as the case may 6 be, for dam safety purposes. It will also entail flood 7 control storage space, and it is estimated that it will 8 provide some regulatory storage of the Central Arizona Project.
9 water.
10 0 Are those all, or most of all of the --
11 A Also included is a certain amount for 12 agricultural distribution systems, both Indian and non-Indian <
Q 13 O This is -- the state is going to build 14 distribution systems for Indians?
15 A We don't know. That is a point that is unclear 16 in the Governor and Mr. Steiner's proposal. What they have 17 said is that to complete it within ten years, and they listed 18 all those projects, assuming a average annual federal 19 appropriation of perhaps $170 million, if I remember 20 correctly, and assuming six percent inflation rate, that 21 local financing will have to come up with perhaps as much as 22 Q $2 billion to complete that.
23 Q What portion of the funding required to complete 24 the pumping stations on the Granite Reef aqueduct, what is 25 the proportion in relation to the total $2 billion?
2375 9 1 A I said I did not know what it cost for the 2 pumping, so I don't know what it costs for the portion of 3 the whole aqueduct.
4 0 Is it significantly less than the cost for 5 building the three dams?
6 A I really can't answer that, because I don't know 7 what it costs for the pumping stations. I know they are 8 expensive. Everything is, but I don't know what the costs 9 are.
10 Q Very well. Do you know how much money has 11 already been invested in CAP?
12 A I think the federal government has appropriated 13 maybe as much as $900 million.
14 0 What is -- are you f amiliar with any developments 15 or termination of any developments on the upper Colorado 16 basin?
17 MS. BERNABEI: Objection. The word " developments' 18 is unclear as stated in the question.
19 MR. GEHR: Well, let us find out whether the 20 witness -- if he says it is unclear, I will do something 21 e lse .
22
(]) MS. BERNABEI: Well, I think everyone in the 23 courtroom should understand what a development is.
24 MR. GEHR:
(]} It is not a matter of whether it is 25 clear to her. It is a question of is it clear to the witness?
10 2376 1 MS. BERNABEI: I think it should be clear to G 2 everybody. Development can mean a lot of different things 3 in different contexts.
4 MR. GEHR: This witness will tell me when it is 5 not clear.
6 JUDGE LAZO: Let us find out if the 5dtness 7 feels it is unclear.
8 THE WITNESS: I believe I know what Mr. Gehr is 9 getting at. I would appreciate some more specificity, sir.
10 BY MR. GEHR:
11 Q Pardon me?
12 A I would appreciate some more specific.ity in ll) 13 " development." I am not sure what you mean, but I think I 14 do.
15 Q I am thinking of projects that have been 16 planned or cancelled or are being planned, or that would use 17 Colorado River water in the Upper Colorado Basin.
18 A Yes.
19 0 Wouldryou explain what you know about?
20 A I know of one, and that is the Exxon oil shale 21 development project that would have used -- I can't remember ll) 22 how much, but it was a significant amount of Colorado -- of 13 the Upper Basin share of their remaining entitlement, and it 24 gg) was expected to go on line sometime, I believe early in the 25 1990's. Economics, according to Exxon, has caused them to
2377 11 re-examine that project.
1 They may feel it is not economically 2 f easible . Therefore, it is -- I do not know whether it is 3 cancelled or on the back burner, so to speak, but'they have 4 stopped plans for current development.
5 Q Do you know of any projects that are under 6 development?
7 A There is still one small oil shale development 8 ongoing. The Animus-La Plata project in Colorado is under 9 construction. I think there may be one or two other 10 agricultural delivery projects under construction in 11 Colorado, and I am not sure actually of the status of the 12 Utah, Central U*ah Project, or the Utah Project.
() 13 Q What is that project?
14 A It is to deliver part of Utah's entitlement for 15 irrigation purposes, and perhaps some municipal. I am not 16 sure of the status of that.
17 Q How much water are we talking about, those that 18 you do know about?
19 A I am not sure.
20 0 Among the uncertainties you have considered, did 21 you consider the augmentation studies, such as cloud seeding,
() 22 vegetation management, studies to increase water yields along 23 the river, the Colorado River Basin?
() 24 A Yes, I -- I - have looked -- not looked into them 25 deeply,,but I know of them as an uncertainty, yes.
2378 1 Q Oh, in connection with the exchange of _ ef fluent 2 for non-Indian agriculture, would that be CAP water that 3 you would exchange for?
4 A We would hope that we would not be put into a 5 position where that would be the water that we would have 6 to exchange for. The reason being, non Indian agricultural 7 CAP water is of second priority, and it would be the first 8 class of water use to disappear during times of CAP shortage.
9 Since we feel that a CAP shortage is very likely at some 10 point in the future, an exchange with Indians for their 11 share of CAP water -- I mean -- that is right, exchange with 12 non-Indian agriculture for a portion of their CAP water
() 13 would not provide any first priority water.
14 15 -
16 17 18 19 20 21 '
() 22 23 24 C) 25 i
I
2379 O i o ota vou con taer thee ee eericu1eure aeve1oement l 2 is urbanized that that would be an additional source of 3 water?
4 A As agricultural activities go out of production, 5 it can provide an additional source of water for municipal 6 and industrial and commercial customers.
7 (Pause.)
8 Q At page 2179 of the transcript -- you do not need 9 to refer to it -- you stated that the City of Scottsdale 10 uses groundwater entirely. Now/ we had some prior testimony 11 which indicated the City of Phoenix water service area ex-12 tends into parts of the City of Scottsdale.
13 A That is correct.
O 14 0 And when you are saying that the City of Scotts-15 dale uses groundwater entirely, you are referring to those 16 sections of the City of Scottsdale not served by the City of 17 Phoenix, is that correct?
18 A To be more precise, I am referring to the 19 Scottsdale Department of Water, Municipal Utilities,-as 20 Scottsdale calls it.
21 You also indicated that there is a potential O
22 for exchaage of effluent or use of effluent by industries, 23 which I presume if they bought it, they would free up their O 24 otherwise potas1e requiremenes, requirements for goeah1e 25 water as a water source. Is that correct?
O
2380 l l
O i A We 1oox ee eff1uene in terms of exchense enet we 2 perhaps could exchange with some other industry which has a i l
3 right to basically first priority water. Specifically, we 4 recognize that there may be a possibility for industrial 5 CAP applicants to have something that they could exchange.
l l 6 It may be possible to effectuate some type of exchange for l
l 7 an industry which may have some kinds of first-priority water 8 rights.
9 Q Well, it would be necessary to find an industry 10 that is fairly near the source, is that not correct?
11 A That would be much more ideal to do that because 12 in the large picture, the industrial use of water, and 13 Arizona is relatively small. It is far less than 10 per 14 cent. But that would be only if certain things were happen-l 15 ing. '
16 Q I was thinking that perhaps the use of effluent 17 for power generation was an industry --
18 The use of effluent for power generation is indeed 19 an industrial use, and you would support that use rather than 20 the use of potable water, or you would like to exchange it 21 for any CAP water the power industry may have.
22 MS. BERNABEI: Objection. " Support" is vague.
23 Who knows what " support" means?
24 MR. GEHR: Let the witness answer the question.
25 If he does not know, he will tell me that he does not know.
O
2381
() 1 JUDGE LAZO: You may answer the question.
2 THE WITESS: Sale to industries of effluent for 3 use in power generation is a use that is supported by the 4 cities. The exchange of effluent for any industrial CAP S allocation is also supported by the cities. We would prefer 6 exchanges rather than sales, but we recognize that not all 7 the times are exchanges feasible.
8 BY MR. GEHR:
9 Q You mentioned the use of effluent sometime in the 10 future for the Rio Salado Project.
II A That has been proposed as a potential use of 12 effluent.
13 Q Do you have an opinion whether or not it is likely O 14 that the Rio Salado Project will proceed until these dams 15 on the Verde and Salt River or other flood-control measures 16 are in effect?
i 17 A It is my understanding that it is the dams along 18 the Salt and Verde that will make Rio Salado a possibility, 19 or make it possible.
20 JUDGE CALLIHAN: Excuse me, Mr. Gehr.
21 May we ask what the Rio Salado Project is?
22 THE WITNESS: Rio Salado is a project whereby 1
23 several miles along the Salt River extending from Mesa down
() 24 through Phoenix, permeating approximately 35th Avenue maybe 25 l will be turned into a series of recreational lakes, green
()
2382
) I belts, things of that sort.
2 JUDGE LAZO: Are you going to put some water in 3 it?
l 4 THE WITNESS: Pardon?
l 5 JUDGE LAZO: Are you going to put soEe water in 6 it?
7 THE WITNESS: What do you mean, sir?
8 JUDGE LAZO: Did you say the Salt River?
9 THE WITNESS: It is the Salt River, yes. Yes, 10 that -- oh, I --
11 (Laughter.)
12 Yes, i t --
13 JUDGE CALLIHAN: Thank you.
O 14 BY MR. GEHR:
15 Q Do you know if it has been considered to use 91st 16 Avenue effluent for that purpose or to fill the plant near 17 that -- the needs?
18 A Well, not so much 91st. Twenty-third was one 19 possibility. That entails essentially transportation costs.
20 MR. GEHR: I have no further cross examination.
21 JUDGE LAZO: This might be an appropriate time 22 to take a -- I was going to say mid-afternoon -- a long after -
23 noon, late afternoon recess. Can we take 15 minutes, please?
lh 24 (A 15-minute recess.)
25 ///
lI
2383 A
"\_) 1 JUDGE LAZO: Mr. Dewey, is the Staff ready to 2 proceed?
3 MR. DEWEY: Yes, Your Honor.
(]}
4 MS, BERNABEI: Excuse me, before we get into 5 Mr. Dewey's questioning, could I ask about one thing that 6 relates to Mr. Gehr's questioning?
7 If this Board is going to reconsider its ruling 8 that the substantive details of negotiation can be gone into, 9 I would like to be able to brief the issue because I think 10 there are some fundamental due process questions involved, 11 in allowing one party to use their witnesses to go into and 12 not providing either the process or the opportunity to ano-13 ther party. And if the Board is reconsidefing its ruling, 14 I would like the opportunity to brief it before it comes to 15 a decision.
16 JUDGE LAZO: What would you expect to do, 17 Ms. Bernabei: Brief it -- do you mean file a written brief?
18 MS. BERNABEI: Yes.
19 JUDGE LAZO: We have not had sufficient time to 20 consider exactly how we are going to rule, but we will keep 21 that in mind. Maybe we will do it at the end of the day.
22 There are some exhihits that have been identified but have 23 not yet been offered.
(V's 24
( MR. GEHR: I would like to offer Applicants' 25 Exhibits KK and LL.
O>
x-l
2384 O i JUDGE tAzO: Ie there env obsection to rece19 t 2 into evidence of Applicants' Exhibits KK and LL?
3 MS. BERNABEI: I have no objection.
4 It might make more sense if -- well, I am not 5 sure of the numbers -- if the MAG 208 Plan were consolidated 6 with the earlier submission by the Applicants. In other 7
words, as I understand it, part of this exhibit has already 8 been submitted, and it might make more sense to consolidate 9 it into one exhibit.
10 JUDGE LAZO: No, I think that would -- that i.
II likely to confuse the issue a little bit, particularly as 12 LL may come in so much after the earlier exhibit. In terms 33 of tieing it'to the taanscript, it is probably better to have O 14 it as a separate exhibit.
15 MS. BERNABEI: I have no objection.
16 JUDGE LAZO: Mr. Dewey?
17 MR. DEWEY: (Negative response. )
II JUDGE LAZO: Very well, LL and KK may be received.
I9 (The documents referred to were 20 received into evidence as 21 Joint Applicant's Exhibits KK 22 and LL.)
23 On the same subject matter of exhibits, MR. GEHR:
Ms. Bernabei has stated that she would like to introduce an executive summary of the MAG Plan. Is that correct?
O 1
2385
(~h 1
\_/ MS. BERNABEI: That is correct. I have, I think, 2
not necessarily all copies here. We would like to introduce 3
both the February, 1982 update and what has been titled
({}
4 May 1982 Executive Summary.
5 MR. DEWEY: I have no objection, and I previously 6
stipulated with her that it would be acceptable. However, I 7
can recall where executive summaries have become very heavily 8
criticized as accurately reflecting the substance of the basic ~ report, and consequently, I have distributed to the 10 parties the full MAG Plan, the final MAG Plan, the 1979 Plan II which the Executive Summary apparently is a supplement to, 12 and I would like to offer that as well. And I certainly agree I3 that the Executive Summaries that Ms. Bernable wants to intro -
O I4 duce should be admitted.
JUDGE LAZO: When copies are available, it might 16 be better to introduce them at that time.
17 MS. BERNABEI: I believe we probably have suf-18 ficient copies to introduce them at this time, at least the 19 Executive Summaries as Intervenor's XL --
20 MR. DEWEY: XL7 You mentioned two of them.
21 MS. BERNABEI: Yes, I do not have the February 22 1982, but it might be nice to keep the Executive Summary with 23 the Draft Report. So we could introduce the Executive Sum-l 24 ,
maries as part of Intervenor's XL.
25 JUDGE LAZO: Do you want to distribute those now?
l )
l l - .
2386 O I (counset for Intervenor distributee Intervenor's 2 Exhibit XL.)
l 3 (The document referred to was 4 marked for identification as 5 Intervenor's Exhibit XL.)
6 MS. BERNABEI: I also have a housekeeping matter 7 in terms of Intervenor's Exhibit XXXIX. We do have better 8 computer sheets of those to include all the necessary figures 9 and a certificate of the Department of Water Resources that to indicates that it is authenticated. So I would like to with-11 draw the original exhibit that I entered and mark for iden-12 tification Intervenor's Exhibit XXXIX.
13 JUDGE LAZO: Very well.
O 14 (The document previously marked 15 for identification as Inter-16 venor's Exhibit XXXIX was 17 withdrawn, and the document 18 referred to was marked for 19 identification as Intervenor's 20 Exhibit XXXIX.)
21 MR. GEHR: This is the exhibit you will recall 22 which the witness was unable to explain. Apparently a 23 number of computer codes or alphabet or numbers were used 24 which the witness did not understand and did not know about.
25 JUDGE LAZO: What number is this?
O
2387 O i MS. BERNABEI: xxxIx. We e1eo have et this time 2 a legend. Unfortunately, we do not have copies of the legend.
3 I assume we could either introduce it with the exhibit when 4 we have copies or as another exhibit. The legend is from 5 the Department of Water Resources.
6 MR. GEHR: If you will furnish the legend so that 7 the exhibit becomes understandable, I will withdraw my ob-8 jection.
9 JUDGE CALLIHAN: Ms. Bernabei, my records say 10 with regard to the June 4 and June 18, 1982, correspondence II between Arizona Public Service and the Department of Water 12 Resources, that the June 4 is XXXVI, and the June 8 is 13 XXXVII. However, insofar as the notation is discernible, O I4 all those copies were distributed. They both seem to say 15 XXXVI.
16 I think it is my handwriting that MS. BERNABEI:
17 is unclear. The June 18th letter should be XXXVII.
18 JUDGE CALLIHAN: The June 18th is XXXVII?
I9 MS. BERNABEI: Yes.
O JUDGE CALLIHAN: Thank you.
I MS. BERNABIE: That is right.
JUDGE CALLIHAN: Thank you.
JUDGE LAZO: How do -- do I understand that there O 24 are no objections of receipt into evidence of Intervenor's 25 Exhibit XL, the Executive Summary that has just been handed O
- l 2388 O i oue2 2 MR. DEWEY: No objection.
3 JUDGE LAZO: Very well. It may be received.
4 (The document referred to was 5 received into evidence as 6
Intervenor's Exhibit XL.)
7 JUDGE LAZO: Mr. Dewey, are you ready to proceed?
8 MR. DEWEY: Yes, sir. Can I have a clarification 9 on Intervenor's Exhibit XXXIX?
10 JUDGE LAZO: Well, I do not know what we are going II to do with XXXIX. It has been offered that we will have 12 something in addition.
13 MR. DEWEY: All right.
O 14 JUDGE LAZO: Do you think maybe you should hold 15 it until --
16 MS. BERNABEI: Well, I will have a one-page legend 17 that goes with it, and we will have' copies tomorrow. I will II offer it at that time.
i 19 JUDGE LAZO: Would it be better to attach the 20 legend to the exhibit?
21 Certainly. Yes.
MS. BERNABEI:
22 Well, why do you not keep the exhibit JUDGE LAZO:
23 until it is complete?
24 MS. BERNABEI: I have not offered it into evidence 25 In other words, I have marked it for identification.
yet.
O
2389 O i 1 mer se eue eioaias ene witaees oa te. I heve oae cogy 2 of the legend which I will be able to use.
3 JUDGE LAZO: All right. We will hang onto ti 4 until it is complete.
l 5 FURTHER CROSS EXAMINATION 6 BY MR. DEWEY:
7 Mr. McCain, I just have a few questions here.
Q 8 You have testified about the desirability of trad-9 ing effluent to the Indians for CAP water. Let me ask you, 10 is it also possible that contaminated water from contaminated II wells could be traded with the Indians?
12 A That is possible. In terms of it being a water 13 supply that is not potable being exchanged for a water O 14 supply that is potable, that is a possibility.
15 Q And is it also true that the potable water could 16 be exchanged to other types of water users such as industry?
17 A You mean the non-potable water?
II Q The non-potable water.
19 A It would depend upon the industry. Some indus-20 tries need very pure water. Some do not.
21 So it would be suitable for both agricultural Q
22 and industrial use?
23 A What would?
O 24 Q son-goteb1e weter.
25 It depends upon the non-potable water.
A O
2390 1
If it was high in salts, then agriculture would 2 not want it. Most industry would not want it.
3 If it has some nitrates in it, then it is suitable O 4 for agriculture, but it is probably not suitable for some 5 industries. It depends.
6 You testified about the Special Masters' decision 0
7 in the Arizona v. California case in which an additional 8 amount of water was awarded to the Indians. Has that Special 9 Masters' decision been accept'ed by the Supreme Court yet?
10 A Not to my knowledge.
11 Is it possible that the Supreme Court did not Q
12 act upon the recommendation of the Special Masters?
13 A I do not think they would ignore it. I think they 14 would either rule to accept it or reject it.
15 Is it a possibility they might reject it? -
Q 16 A It is a possibility.
I7 MR. DEWEY: Those are all the questions I have.
II JUDGE LAZO: Ms. Bernabei, do you have any re-I' direct?
20 It is rather extensive.
MS. BERNABEI: I do. I 21 thought the Board would have questions for the witness.
22 JUDGE LAZO: You say it is extensive?
23 Well, it should take about a half MS. BERNABEI:
24 an hour, I believe.
25 JUDGE COLE: Just a couple of questions, O
l 2391 1
Mr. McCain.
(])
2 With respect to the role and purpose of the 3 Arizona Municipal Water Users Association, does your organiza-4 tion get involved in the planning function for water supplies 5 for your member municipalities?
6 THE WITNESS: Not at this time. We are a small l 7 It is anticipated that we will take on those organization.
8 functions directly in the future. In a sense there is some 9 de facto planning in the sense that we are involved in, you to know, dealings with, for example, the Department of Water II Resources and dealings with the Department of Water Resources 12 on behalf of the cities very often affect the extent of 33 municipal water supplies and rights to use them.
14 jjj 15 16 ,
17 18 19 20 21 22 23 24
(])
25
(~)
v x
2392 dlhL1 1 JUDGE COLE: Who is currently performing the func-2 tion of looking after the current and future water-supply needs of the municipalities that are members of your organi-(-)
v 3
4 zation?
5 THE WITNESS: There are two organizations -- well, 6 no, that is not exactly correct. There are the individual 7 cities themselves, who have their own separate, small plan-8 ning departments as a general rule. From a long-range per-9 spective, there is the Salt River Project because the Salt 10 River Project' delivers water to lands which have a right 11 to receive that water. And to the extent that land be-12 comes urbanized, then it becomes municipal in nature; and, 13 therefore, they deliver the water rights pertinent to those
( )
14 lands to the city water systems, which acts as the agent 15 for the individual landowners, and then delivers it. Salt 16 River Project engages in long-range planning. They are the 17 only institution in Arizona that does that.
18 The Department of Water Resources is beginning 19 to do that, since they were established pursuant to the code.
20 They have yet to promulgate any management plans at this 21 point. But we expect them to become involved in long-range 22 planning.
23 JUDGE COLE: With respect to the municipalities (n,) 24 that you have knowledge of, sir, is it safe to say that 25 there will be an increase in the total amount of water that
/^T, U
e
2393
. () 1 is being used in the Phoenix area in the future?
2 THE WITNESS: I would expect that to be true, yes.
3 The only thing that may not make that come true 4 would be massive, mandatory conservation programs which would 5 drastically cut the water use. And then there might be some 6 hiatus.
7 But in the future, growth and development are going 8 to continue to take place in this area. So I do expect water 9 use to increase in this area.
10 JUDGE COLE: I see. So considering the population 11 growth and industria/ commercial growth, and even consider-12 ing conservation, it is your opinion that water use will 13 still increase and continue to increase as time goes on --
0 14 say, over the next 40 or 50 years.
15 -
THE WITNESS: I would think so, yes, sir.
16 JUDGE COLE: All right, sir. Now, is there any 17 relationship between the water use in a community and the 18 amount of wastewater that might be collected and treated 19 in a community?
20 THE WITNESS: Yes, there is, in the sense that 21 the more water that is used inside the house, the more water 22 will be put into the sewerage system.
23 JUDGE COLE: All right, sir. Do you think that
() 24 there will be an increase in the amount of wastewater col-25 lected and treated in the Phoenix metropolitan area over O
2394 1 the next 40 to 50 years?
(])3 2 THE WITNESS: Yes, I do.
3 JUDGE COLE: All right, sir. ;
4 I don't have any further questions. Thank you 5 very much.
6 THE WITNESS: You're welcome.
7 JUDGE CALLIHAN: One question regarding the Salt 8 River Project. Do you characterize it as governmental, in-9 dustrial, commercial, private enterprise? Which of those 10 best fits?
11 THE WITNESS: It's a rather unique organization.
12 But according to Arizona statutes under which it is organ-13 ized, it is basically a municipal corporation.
14 JUDGE CALLIHAN: With how many municipalities con-15 cerned?
16 THE WITNESS: There are no municipalities directly 17 concerned in Salt River Project itself. It, however, deli-18 vers surface water or groundwater to a number of municipali-19 ties.
20 Example: the five cities I represent -- Phoenix, 21 Mesa, Glendale, Tempe and Scottsdale. Salt River Project 22 also delivers water to the City of Chandler, the Town of l
- 23 Gilbert. On the west side I believe it delivers some water
() 24 to the City of Peoria. And perhaps some others, but I'm not ,
25 sure right now.
O
2395
[) 1 JUDGE CALLIHAN: As I recall from earlier testimony 2 in these proceedings, parts of Phoenix are supplied by the
{} 3 Salt River Project. But there are parts which are supplied 4 from other sources. In your responsibility, in your organi-5 zation's responsibility as representatives of Phoenix, do 6 you represent all of Phoenix, or is your concern limited 7 to that related to Salt River, say, or somebody else?
8 THE WITNESS: We represent t'he entire City of 9 Phoenix, regardless of off- or on-project distinction.
10 JUDGE CALLIHAN: The following is based on limited 11 and short-range, both in time and space, observations --
12 and may be incorrect. So please correct me if I am wrong.
13 But I think I have observed in and around Phoenix what I O 14 will describe as housing developments with lagoons around
! 15 them and lots of swimming pools and so forth. In general, 16 what is the source of water of those installations?
17 THE WITNESS: In general, the source of water for 18 those installations are from water sources delivered by Salt 19 River Project, be it surface water from the Salt or Verde, 1
1 20 or be it groundwater.
21 JUDGE CALLIHAN: I think we have heard -- and you 22 have remarked, I think, in connection with a statement by 23 the Chairman a few minutes ago -- that the water level Lin O)
(_ 24 the Salt River is, well, at least below ground level at the 25 moment. So the things that I characterized as lagoons --
()
L
2396 5( ) I and do you have any idea what I'm talking about when I --
2 THE WITNESS: Oh, yes, I know what you're talking 3 about.
4 JUDGE CALLIHAN: So that's water that has been 5 brought in. And are those line areas? Or does one just 6 have to keep supplying water to maintain some in sight, so 7 to speak, even though the water table is way down yonder?
8 THE WITNESS: Most of those instances you're talk-9 ing about are delivered water pursuant to rights that the 10 lands hold. Surface water in Arizona, at least in terms 11 of the Salt River Project, is pertinent to a particular piece 12 of land. A land has the right to use that water. As the 13 use of water changes, that land still retains the right to O 14 use that water. So when certain lands change from agricul-15 tural to urban, it is legal for some of those lands to be 16 constructed in such a way that they receive water for lagoon 17 or lake purposes.
18 This water comes from Salt and Verde, in a sense 19 of the series of dams along the Verde and the Salt which 20 are primarily -- no, I won't say "primarily." The Salt 21 River Project says that their function is water storage.
12 And so it catches the flows that come down the Salt and 23 Verde and then through the Granite Reef Dam, which is a
() 24 diversion dam, and delivers those waters into two canals 25 on either side of the Salt River Project, which then feeds O
D 2397 6 1 into other canals. And that water is then transported 2 throughout the Salt River Project to their member lands.
3 And as long as the member lands continue to pay the assess- r 1
(~)/
s_ 4 ment, they have the right to receive how much water, a pro- ,e 5 portional share of the water delivered by Salt River Project.
6 JUDGE CALLIHAN: And these water rights rest with 7 an individual household, individual resident? Or does it 8 rest with the city or with whom?
9 THE WITNESS: It rests with the land, a t
10 JUDGE CALLIHAN: Whoever owns the land owns the -
11 rights. :
II THE WITNESS: Whoever' owns the land has the right II
. to receive the water. I do not believe the Salt River Pro-
) 14 ject ever claims that they have the water. That is, their 15 water rights. They are an agent of delivery to landowners 1
i 16 who have the water rights but virtue of the fact that they I7 own an acre of ground which has the right to receive water.
~
' JUDGE COLE: And then' doctrine of prior appropri-I'
, ation.
l THE WITNESS: Yes. The doctrine of prior appro-21 priation in some senses fits very well with the Salt River 22 Project.
23 l JUDGE CALLIHAN: Do these rights then permit the n
24 holder, whomever it may be, to use the water as he wishes?
(]) '
25 Or are there some constraints on him?
O
2 2398 1 THE WITNESS: Well, it permits him to use the water ,
7{~)
2 the owner of the land to use the water, essentially on that 3 land. The right to receive water pursuant to a piece of t
() 4 land does not allow the owner of that land to take that water ,
5 and take it off the land and take it outside the reservoir 6 district boundaries.
7 So the use of the water is restricted to member 8 lands, those lands as pay their assessments, which have 9 rights to receive the water. But the uses can be changed 10 from agricultural to municipal.
11 JUDGE CALLIHAN: And the rights are transferred f 12 as the real property is transferred from owner to owner?
13 THE WITNESS: Technically. Technically. But it 14 is understood that it would be very, very difficult for i
- 15 Salt River Project and very difficult for individual owners 16 of perhaps one-quarter acre to have to receive water direct- :i
'1 17 ly from Salt River Project and then treat it themselves.
l 18 It is instead delivered to the municipalities, which then l 19 treat it. They are kind of like, I guess the proper word l
20 is " agent" of the landowners. And that is delivered to them.
21 And then they themselves deliver water -- you know, municipal 22 domestic water -- to the residents.
23 Salt River Project does deliver some water -- I
()
24 do not know how much -- does deliver some water to landowners
( 25 for outside irrigation. That is, there are small canals m
2399 I l
l And then a landowner who has paid his 8S b
1 that run through.
2 assessments can schedule a time to take delivery of water 3 to irrigate the outside areas of his house.
O 4 JUDGE CALLIHAN: Thank you very much. I have no 5 more questions. -
6 JUDGE LAZO: Ms. Bernabei, would you proceed with 7 your redirect?
8 MS. BERNABEI: Yes. I was going to ask if I could 9 have a few minutes to organize. I'm afraid I didn't use 10 the last recess as wisely as I should have. It might make 11 the redirect much shorter.
12 JUDGE LIZO: How much time do you require?
13 MS. BERNABEI: Ten minutes?
/~~s i ,)
s 14 JUDGE LAZO: Very well.
15 (Brief recess.)
16 17 ,
18 19 20 21 22 23
()
25
(
l 2400 T23, 1g 1 JUDGE LAZO: Back on the record.
() 2 REDIRECT EXAMINATION 3 BY MS. BERNABEI:
( 4 Q Mr. McCain, I have just shown you what has been 5 marked as Intervenor's Exhibit XXXIX. Included is the 6 legend, of which we only have one copy, which I believe 7 Mr. Gehr has seen.
8 Now, using that legend, can you explain some of 9 the columns on this well registry report that you were 10 unable to explain before? And we can start from the first 11 page.
12 A On the top line, immediately to the right of the
(') 13 word " type," there are the letters CNCD.
14 Q And what does that mean?
15 A According to the report code explanations, it 16 stands for the county code, and therefore, the numbers which 17 appear down below on the top of the line, on the first of 18 the three lines, for each individual well, is the code 07, 19 and on the first page, 07 is repeated for each well, and 20 that stands for Maricopa County.
21 Q Okay, now to back up for a minute, is it not 22
(]) clear from these copies that until the middle of the seventh 23 page, all wells -- all Applicants are ANPP, that is, the 24 Applicants in this case?
(])
15 A On the first one, two, three, four five, six, all
l 2401 2 1 applicants appear to be ANPP. On the last page, seven, the
(]) 2 first four appear to be ANPP.
3 Q Okay, are there any other columns that you can
(]) 4 now identify with the legend to this well registry report?
5 JUDGE CALLIHAN: Excuse me, Ms. Bernabei, but 6 before you go to that, was the remark concerning the ANPP 7 inclusive of the first page as well?
8 THE WITNESS: Yes, it was, sir.
9 JUDGE CALLIHAN: Well, what is the first entry on 10 the first page?
11 THE WITNESS: I am sorry, you are correct.
12 Ampat Associates, Patrick Property Incorporated. That is a --
{) 13 JUDGE CALLIHAN: Well, it doesn't matter.
14 THE WITNESS: It is not ANPP. .
15 JUDGE CALLIHAN: But it is not ANPP, all right, 16 thank you.
17 THE WITNESS: That is right, I am sorry.
18 BY MS. BERNABEI:
19 0 Are there any other columns that you can now 20 identify using the legend provided by the Department of 21 Water Resources?
22 A OW, according to the legend, stands for 23 ownership, and I can't make -- I do not know what the figures 24 under ownership are. There appears to be an "N". I would 25 gather -- we ll, I just don't know what that means. Next,
1 l
l 2402 l 3 1 water use -- well, the legend here indicates it is WTUS,
() 2 however, on the computer printouts it is WTRUSE. I would 3 presume that is the same.
() 4 Underneath that, there are -- on the first page, 5 anyway, there is an "O" and a "K", another "O" and then a 6 final "K" for ANPP.
7 The second.page, "O" and "K", third page, "O" 8 and "K", fourth page, "O", "O" and "K", seems to be what they 9 are, "O" and "K". According to the code, "K" stands for 10 other, and "O" stands for County, I guess. It is not quite ---
11 it is not clear what "O" means. "K" means other, but it is 12 not clear what "O" means.
() 13 JUDGE CALLIHAN: Other than what?
14 THE WITNESS: That is -- I would suppose that 15 that means all other types of use except irrigation, 16 utility, no use, domestic, municipal, industrial, other than - -
, 17 it appears to be just a catchall phrase to put a classificatic'n 18 in for all the wells which don't fit in with the other codes 19 that they have offered.
20 BY MS. BERNABEI:
21 Q Is there any other column that you were unable 22 to identify or that you weren't sure about that you can now 23 identify with the legend?
gS 24 A The next one down on the legend is WLUS.
V 15 According to the code, to the explanation, that stands for i
2403 1 4 1 well use, and we look at the -- read down that column, and l
(]) 2 there is a "W", which stands, according to the explanation 3 code, for " withdraw water." There is an "R", which stands
(]) 4 for " mineral exploration." There is a "T", which stands for 5 " Test," I presume test W. So, W, R, and T. The second page, i.
6 there is a zero or an "O" which stands for " Observation."
7 I believe that is all the codes that are 8 listed.
9 Q Are there any other columns that you weren't 10 able to identify that you are now able to identify, using the 11 legend?
12 A Using the legend, there is the well depth.
13 0 And which column is that?
}
14 A That would be over to the right, in the third 15 row of the computer codes, and you will look down, and you 16 will see what appears to be under the 1, 2, 3, the number 17 78. I would presume, according to the code, that that means 18 that that depth of that well is 78 feet.
19 Q And I assume the other numbers would be --
20 A And then 48 feet, 200 feet, 200 feet, 200 feet, 21 and so on.
22 O Okay.
23 A The other one is the depth cased-in feet, and 24 that is the third one over.
25 JUDGE CALLIHAN: From the right or from the: left?
i
2404 5 1 THE WITNESS: From the left. DPTHCASE? I believe
(]) 2 that is what it is, even though the code here is somewhat 3 different from what appears on the computer printout, the
() 4 depth cased-in feet. CS over DI, casing diameter in inches.
5 That is the second one over from the left, next to well depth.
6 Then there is the DTE and DRL, which stands for 7 the date drilled, last three digits of year, when completed 8 well. That is date complete. They ask for the last three 9 digits of the year. It is perhaps easier to look down, and 10 see such as 03/23/982. I am not sure what the 9 means in 11 there, but it appears that these figures indicate that the --
12 these wells, at least on the first page, were completed on
(]) 13 the dates mentioned, 3-23-1982 -- oh, that is what nine 14 stands for. Okay. 1982.
15 Then there is the level case, which is the water 16 level in feet yield, gallons per minute, and in all of these, 17 it~is one, that I can see, that seems to be pretty standard 18 through. Yes.
19 BY MS. BERNABEI:
20 Q And which column are you talking about now?
21 A One that reads over -- level case.
22 0 Level case.
[)
23 A And that is the water level in feet yield, equal 24 to gallons per minute, so it shows that these wells here 25 yield one gallon per minute per foot, I guess. I am not sure.
l 2400 6 0 g Now, Mr. McCain, you have seen computer sheets
(]) 2 like this before, haven't you? In other words, well registry 3 reports set out on computer sheets?
(} 4 A Yes, I have seen sheets like this before. s 5 0 And prior to this hearing, in fact, you have seen 6 the sheet that I have given to you right now, is that -- or 7 at least part of this report?
8 A I do not know. I notice that the date on this 9 is 4-15-82. I know that the Department of Water Resources 10 comes out periodically with updates of their filings, so I 11 don't know if I have seen this one or not before.
12 0 Now, under type of well, you are fairly certain under type does indicate that that is an exempt
() 13 that "E" 14 Well?
15 A Yes.
16 17 18 19 l 20 21
()
23 24
([)
25 1
2406 1 Q And it continues to be your belief, your opinion, CJ's - 1 .
2 that exempt wells cannot be used for industrsial purposea.,
3 A That is my opinion, yes.
O 4 Q Now, "nder Well Use, there were several uses menz 5 tioned. Is that correct? On the legend? , ,
i 6 A Under Well Use, yes. They mention: drainage, <
7 mineral exploration, test, abandoned, observation, withdraw l 8 water. .
9 Q Okay,,and under Water Use there are several uses .
10 mentioned. Is that correct?
11 A Yes, a great number of them.
12 Q And could you read those for us?
13 A "A" would be irrigation; B, utility; C, vacant;
() 14 D, domestic; E, municipal; F, indbstrial; G, recreational; 15 H, subdivision; I, mining; J, stock; K, other; L, draidage.
16 The third column, I guess that is -- I don't know,
/
17 is that an "O" or a "C"? I.would presume it's an 0" simply 18 because there is already a "C". j/
19 "O," for county; "F",forfederal,'{M" for city, 20 "N" for corporation, "P" for private, "S" for state, and 21 "W" for water district. ,
22 I don't know if that columnt refers. to trater use.
23 It does not seem to make much sense. "It'looks more like 24 an ownership column. But I don't know.
(]}
25 Q Now, you're talking'about the column on the legend. ,
p si I
V
2407 2,
1 Is that right?
2 A I'm talking about the column on the legend which 3 appears to be under Water Use, which is the one to the far O 4 right.
5 0 Okay, just taking the first part that you know 6 is under Water Use, those uses are not all listed in the 7 groundwater code, are they?
8 A No.
- 9 Q Okay. In fact in the groundwater code indudstrial 10 use would encompass several of those uses as they are
- 11 spelled out in the legend.
12 A Industrial, as the term is used in the groundwater
, 13 code, would include ytility, would include just industrial,
) 14 may or may not include mining. The reason I say that is that 15 oftentimes mining is used in the code as the metalurgial
^
16 extraction and processing industry. So sometimes mines are 17 explictly treated in the code, as are utilities. But generi-13 cally, in a sense, those are industries, yes.
19 Q Now, do you believe that most wells drilled at
, 20 Palo Verde to your understanding would be deemed industrial 21 wells under the groundwater act?
12 A Well, let us say that I would presume that -m i:
23 wells at Palo Verde would withdraw water for industrial 24 purposes. There may be a well out there which would draw
(])
25 it for domestic purposes; that is, if the well out there O
2408 3f'g I would supply water for drinking or something of that nature.
\J 2 Q And, therefore, is it fair to say that excluding 3 those wells that may be producing water for domestic purposes ,
4 most of those wells, in your opinion, could not be con-5 sidered or issued permits as exempt wells?
6 A In my opinion an exempt well is not a well from 7 which water is withdrawn for industrial purposes.
8 MS. BERNABEI: I would offer Intervenor's Exhibit 9 XXXIX at this time into evidence, conditional upon pro-10 viding a legend, the legend that Mr. McCain has testified 11 to.
12 MR. GEHR: May I ask a few questions?
13 JUDGE LAZO: Of?
() 14 MR. GEHR: The witness. About this exhibit.
15 JUDGE LAZO: Do you want to ask the Board, or do 16 you want to ask Ms. Bernabei?
17 MR. GEHR: No, I want to ask the witness.
18 JUDGE LAZO: All right.
19 VOIR DIRE EXAMINATION 20 BY MR. GEHR:
21 Q Mr. McCain, if an industry puts down a monitoring 22 well, is that an industrial purpose? Is that an industrial 23 well? It's not used for pumping; it's used for monitoring.
(~'T 24 A It depends upon, perhaps, how the department U .
25 O
2409 4 1 defines it whether or not it is an industrial well.
2 O Well, I want to get across the idea that it's the 3 use of the well rather than the ownership of the well that 4 determines whether it's industrial or otherwise.
5 A Yes. Yes, basically it is the use of the water 6 withdrawn from the well which determines its classification.
7 MS. BERNABEI: Can I just say I thought Mr. Gehr 8 was going to question the witness in terms of this exhibit, 9 which,I don't have any problem with sinces I have offered to it into evidence. If he is going to begin a recross of the 11 witness, I do object. In other words, if he limits it to 12 examination of the document, I have no problem'.
13 MR. GEHR: It is going to the admissibility solely,
() 14 solely to the admissibility of this evidence.
15 BY MR. GEHR:
16 0 One other question. Under the groundwater code, 17 were --
18 MS. BERNABEI: I'd like a ruling on my objection.
19 JUDGE LAZO: You are objecting to the admissibility 20 of the exhibit.
21 MR. GEHR: Yes, because there has been no link-12 up between this exhibit and the substance of this case.
23 I am informed that these are monitoring wells.
24 Some of them are not even wells. Some of them are holes
[}
25 in the ground where they took samples of dirt. They are O
\_J
- l
2410 5( ) 1 geological sampling wells of some sort, have been accumu-2 lated for a long time.
i And it's also clear that the groundwater code was
)
4 amended so that permits would not be required for such kinds 5 of operations.
6 MS. BERNABEI: Well, I think there is some dispute.
7 And I think the wells are being used for very important pur-8 poses at the site, including the ultimate heat sink. Aad 9 we have a right to see whether or not the wells have been 10 granted permits and are legally operating. If there is some 11 legal question about them, I think that should be reported 12 to this Board.
13 If Mr. Gehr does in fact believe that there is O 14 no legal question or the wells are inoperative, then I think 15 that he can have the opportunity to talk to Mr. McCain or 16 another witness about that.
17 We did intend to get at this through Mr. Van Brunt.
18 Mr. Van Brunt obviously was not at all familiar with the 19 wells, the well applications, or anything else.
20 That is why we have gone to the Department of 21 Water Resources and are asking Mr. McCain to interpret well 22 registry records, with which he is very familiar and about 23 which he knows.
() 24 JUDGE LAZO: Well, let's hold decision on the exhi-25 bit until Mr. Gehr has had an opportunity to cross-examine
2411 6 1 the witness.
2 JUDGE CALLIHAN: Mr. McCain, please, on Exhibit 3 XXXIX -- I give you a road map. If you look between the 4 two rows of asterisks, you will find the word " city" just 5 to the right of center.
6 THE WITNESS: Yes.
7 JUDGE CALLIHAN: Okay. Then go up from that and 8 you will find " pump capac," which I just to be the capacity 9 of the pump. Well, you tell me. What does " pump capac" -
10 mean?
11 THE WITNESS: I believe I testified previously 12 that I presume that is pump capacity. I don't know for sure 13 because I am a bit troubled by -- not troubled, I just don't
() 14 know what the "i" in front of that means.
15 JUDGE CALLIHAN: In many cases -- certainly on 16 the first few pages, in most cases -- there is no entry in 17 that column.
18 THE WITNESS: That is correct.
19 JUDGE CALLIHAN: What does that imply to you?
20 THE WITNESS: That could imply one of two things.
21 One, that the information was missing or was not turned in.
22 Or that there is no pump.
23 JUDGE CALLIHAN: Thank you.
2*
CE) 25 1
2412 REDIRECT EXAMINATION (Resumed)
(]) 1 2 BY MS. BERNABEI:
3 Q Mr. McCain, is it your experience, in reading well 3
J 4 registry reports or other computer sheets that are issued 5 by the Department of Water Resources, that there are often 6 blanks or problems with them?
7 A As a general rule, ma'am, I don't read computer 8 sheets. And, therefore, I cannot say whether or not blanks 9 are the general rule on computer sheets.
10 I know that oftentimes documents turned in to the 11 Department of Water Resources are missing information of 12 one form or another. I have done that myself, simply be-13 cause the information was not available by the time it had 14 to be in. So you file it anyway and then hope you can come 15 back and fill it in later. But I can't say if that's the 16 general case in terms of these computer printouts. ,
17 ,
18 19 20 21 22 23
() 24 25
2413 T25,1g 1 Q Has it been the case in your experience that at 2 least sometimes documents issued by the Department of Water 3 Resources are incomplete to some degree?
4 A Well, usually the documents issued by the 5 Department of Water Rssources have all the dots crossed and 6 the "I"'s, and most of the time those information required 7 are complete. Sometimes you can't understand them, but they 8 usually cross all the "T"'s and dot all the "i"'s, that type 9 of thing.
10 JUDGE CALLIHAN: Returning to this pump capacity, 11 perhaps in quotations, does your legend give you any hint as 12 tc the units?
O 13 THE WITNESS: No, that I- gume cagecity is not 14 included on the legend, report code explanation.
15 JUDGE CALLIHAN: Do you have an opinion, just as 16 one versed in the trade, of what would be your guess as to 17 number of units -- or the units to go with the four?
18 THE WITNESS: I would presume gallons per minute.
19 JUDGE CALLIHAN: Thank you.
20 BY MS. BERNABEI:
21 Q Okay, Mr. McCain, if I told you that we had been g 22 informed that "XX" means complete, in other words, the "XX",
23 capital XX and the capital II that you see in the farthest 24
] right-hand corner, if you notice there is double capital "I"'s 25 and double capital "X"'s for all the entries.
1
2414 1 A I see, under -- what you are talking about would 2 be, then, the status?
3 Q That is correct.
4 A The status column, where the log is probably the 5 well log.
6 0 Would you have any reason to believe that weren't 7 true if the Department of Water Resources informed us that 8 that were the case?
9 A The case what, that "XX" means --
10 Q Complete, and the "II" means incomplete?
11 A If the Department of Water Resources told you 12 that, I would have no reason to disbelieve that.
$ 13 o okay, moving on the MAG updates, the May, 1982 14 MAG updates, which has been marked as Applicants -- MAG 15 update, what is that? okay, it has been marked as 16 Applicants' LL.
17 Now, the MAG update is different, is it not, 18 in certain respects, from the original 1979 MAG plan?
19 A Yes, it has been updated.
20 o okay, and the differences in part involve the 21 differences in the planning of wastewater treatment plants, g 22 specifically the planning for subregional wastewater treat-23 ment plants, is that correct?
g 24 A I don't know if planning is the proper thing.
25 Perhaps an updated to make a plan flexible enough that will
2415 1 allow other subregional plants to come online without undue
() 2 delay. I don't think this, in my opinion, really establishes 3 subregional plants, but then, you know, what is a subregional m
4 plant? I mean, the new document here does deal with some 5 small treatment plants.
6 Q Now, the 1982 document and the update, in 7 contrast to the 1979 MAG plan, allows cities and governmental 8 units to plan certain subregional or satellite wastewater 9 treatment plants, is that correct, whereas the 1979 plan did 10 not?
11 A Well, I don't think the 1979 plan prohibited 12 planning for other ones. But it is my -- if I remember
(]} 13 correctly, the 1979 plan assumed that all flows would 14 continue to go to the one regional plant. Since 1979, when 15 the f,irst one was issued, there were some changing 16 circumstances, as indicated on page'I-1 of the update, and 17 because of that changing circumstances, it was determined 18 that it would be a good idea to update this, and so that the 19 plan could take recognition of the new realities, so to 20 speak.
21 Q And are you f amiliar with aany specific
)
22 subregional or satellite plans that are being considered in 23 the update that were not considered in the original MAG plan?
24 A Well, there are a number of ones that are 25 scattered throughout this document that are discussed in terms
2416 1 of alternatives, that are alternate one, two, or three, for
() 2 this particular area or not.
3 I don't believe the plan itself really identifies
() 4 any what I would consider subregional plants. It allows for 5 their opportunity or evaluation sometime in the future.
6 0 Okay, and those are essentially wastewater 7 treatment plants, whether you call them satellite or 8 something else?
, 9 A Well, you know, I may be using the term 10 dif f erently . When I look at a satellite treatment plant, I 11 look at it as essentially a rather small plant, perhaps in i 12 the neighborhood of 2 million gallons per day, that is
(]) 13 used -- where the re-use is made in the location. I may be 14 using the term incorrectly. I use the term "subregional 15 plant" as a plant which would collect flows from perhaps 16 more than one community, and would be larger than 2 million, i
17 in that sense.
18 Q Well, is it not true that included as a preferred 19 alternative in the update were several -- was an allowance 20 for cities to plan several wastewater treatment plants that 21 were not allowed, were not provided for in the 1979 plan, I
(~T 22 believe you said that vas correct?
v 23 A They allow the possibility. It is verbally --
24 it is not verbally, but it is written down and it is
{])
25 recognized that yes, the communities do have the option to I
2417 1 consider, and perhaps to construct at some point in the
() 2 future plants which are, you know, not specifically 3 identified as going to be built.
() 4 Q Okay, and what are those wastewater treatment 5 plants that are being considered by the. cities?
6 A In terms of the cities I represent, there are 7 such things as the northeast area plant, the southeast area 8 plant, and the East Mesa plant. Those are some of the things 9 that are not -- that are discussed, I think, presumably 10 someplace in this document, but are not specifically 11 provided for in the plan, the reason being, is perhaps they 12 do not want to commit themselves to this action for the .
(]) 13 future at this point in time. I don't really know. I would 14 say it is -- in a sense to keep options open, because they 15 recognize that situations may change once again.
16 Q Now, the three that you just mentioned, that 17 concern the cities that you represent, if those wastewater 18 treatment plants were built, they would divert to some 19 extent ef fluent that is currently, or was planned in 1979 20 to go to the 91st Avenue treatment plant?
21 A Well, that was planned in 1979 to go to the 91st
(} 22 Avenue treatment plant, I believe that would be a fair 13 presumption, yes.
24 Q And in the update, the plans that you just
{]}
25 described that are being considered, they would draw on
2418 1 effluent that formerly has gone or was planned to go to the l O 2 9,ee Avenue treetmene piene2 3 A I really can't answer that one, because I really O 4 haven'e, es I said, deeg1r seuated thee document. Mr 5 understanding is that the satellite treatment plants may 6 divert the flows, but to an extent, they also provide new 7 growth -- for new growth.
8 Q Okay. Are you familiar with what has been 9 marked as Intervenor's XL?. It is the executive summary to 10 the May, 1982 update.
11 A Yes.
fix p.m. 12 Q Let me just ask you, at least a part of the Q 13 effluent that would be processed at the plants that you are --
14 we are talking about the three that were being considered, 15 at least a part of that would under the 1979 plan go to the 16 91st Avenue treatment plant?
17 A I have testified that I believe so. Yes, when 18 the presumption was that everything would be treated at the 19 91st site.
20 Q Now, reading for Mr. Gehr from the May update of 21 the MAG plan, you testified that the 91st Avenue treatment 22 plant was projected to be expanded to 150 million gallons per 23 day by 1985, is that correct?
24 A No, I believe I testified 1986.
25 Q 1986.
2419 1 A There is a range that is given, 1985 to 1987.
() 2 Q That is correct. Now, the MAG plans are just 3 that, they are plans, aren't they?
O 4 A res.
5 0 And that doesn't mean necessarily that everything 6 that is encompassed in the May, 1982 update will in fact, to 7 a certainty, be done by the cities or the municipalities?
8 A No,*it doesn't, because if my recollection 9 serves me, updates are kind of like regulred periodically as 10 a f ederal requirement, as a result of federal assistance in 11 building these plants.
12 Q And in fact the MAG plan has changed in some
() 13 detail from May of '79 -- excuse me, f rom 1979 until May of 14 1982?
15 A It has changed, yes.
16 Q Okay, now, and I suppose the same thing would be 17 true for the 23rd Avenue plant, which the update projects 18 will be expanded to 42.5 million gallons per day by the year 19 2020. I suppose you could say the same thing about that, 20 that that is not a certainty that the cities and 21 municipalities will indeed expand it to that size?
22 A Nothing is a certainty, in terms of expanding the
(])
23 23rd plant.
24 Q Now, you spoke.of various exchanges that the
(])
25 cities might conduct, exchanges of ef fluent for potable water ?
2420 1 A Yes.
O 2 Q And of the various exchanges you have described, 3 which do you believe are most likely to occur in the near 4 future?
5 A How near?
6 Q Excuse me?
7 A How near? What do you mean by near?
8 0 Well, five to 20 years.
9 A That is, then, roughly 1987 to 2002. In my 10 opinion, there will be an exchange -- there is a good 11 probability, let us put it that way. Good probability of 12 an exchange between one or more of the cities and perhaps
() 13 non-Indian agriculture, for a -- for rights that they hold, 14 not CAP rights. There is a possibility of perhaps some .
15 exchange with industry, probably not much, but as we approach 16 the year 2000, the likelihood of exchanges being necessary 17 with the Indians, I believe will increase.
18 19 20 21 22 (Z) 23 24
(])
25
2421 I Q And of the three mentioned, which of those ex-2 changes are likely to involve the great amount of effluent?
3 A It most likely will be Indians eventually. I O 4 cannot say which one would involve the greatest amount in 5 this time period. I cannot say for sure. All I can give is 6 ranges.
7 Q But you believe the Indian exchanges will pro-8 bably be for the largest amount of municipal effluent?
9 A Well, maybe not. Maybe as it gets farther on to past that time, you know, the exchanges with non-Indian 11 agriculture may be greater.
12 Q But we are talking now up to the year 2000-2005.
13 A Well, once again, the year 2005, if we put it at O i4 ehet 11mie, the exchange by contrace, I be11 eve, is 11mited 15 to, if I remember correctly, 25 per cent of their allocation, 16 or something like that. The Indians. So it is less. Before 17 the year 2005, it is less. After the year 2005, more can be 18 exchanged.
19 In response to one of Mr. Dewey's questions -- he Q
20 asked you what the likelihood is -- let me start over. He
! 21 asked ycu whether or not there is a possibility that the 22 Supreme Court would reject the Special Masters' Decision.
j 23 MR. GEHR: I never asked that question.
l 24 MS. BERNABEI: I said Mr. Dewey. I did not say 25 Mr. Gehr.
O v
2422 1 MS. GEHR: Oh, I beg your pardon, then.
2 BY MS. BERNABEI:
3 0 And you said yes, there was a possibility. What 4 is the likelihood, in your opinion, that the Supreme Court 5 will reject the Special Masters' Opinion?
6 MR. GEHR: Objection. Speculating on the outcome 7 of litigation before the Supreme Court is not very produc-8 tive.
, 9 MS. BERNABEI: I believe he answered Mr. Dewey's 10 question, and I --
11 MR. GEHR: To say it is possible that it will win 12 or lose is nothing, but to speculate as to the likelihood,
, 13 that is something else.
() 14 MS. BERNABEI: If he can answer the question, I l 15 think he should be allowed. I also think he has a key in 16 drafting a document, that which --
17 MR. GEHR: No, you are -- .
18 MS. BERNABEI: Mr. Dewey has asked him whether i
19 there is a likelihood, and I am just asking is it a great 20 likelihood or a very small likelihood. I think I am en-i 21 titled to ask that.
12 JUDGE LAZO: You are asking him who is going to 23 win.
24 MS. BERNABEI: No, I am asking him a question
(])
25 about what is the likehood that the Supreme Court will reject O
2423 I the Special Masters' Decision. He had a key hand in draft-2 ing a document that is Mr. Bill Stevens's limited appearance 3 testimony, in which Mr. Stevens gave an opinion on what the O 4 likelihood is that the Supreme Court would reject the 5 Special Masters Decision. ,
6 MR. GEHR: No.
7 MS. BERNABEI: I think he was asked an opinion.
8 It was from Mr. Dewey's questions.
9 JUDGE LAZO: Let us have his answer.
10 THE WITNESS: It is my opinion that the Supreme II Court as a rule does not reject the recommendations of 12 Special Masters that they appoint.
I3 BY MS. BERNABEI:
i p
U 14 Q And therefore?
15 A Therefore, my opinion is that the Supreme Court i
16 is likely to uphold the Special Masters' recommendation.
37 j Q You have used with Mr. Gehr numerous figures on 38 the City of Phoenix projections for the effluent availability 19 from the 91st Avenue Treatment Plant and the effluent avail-20 ability from the 23rd Avenue Treatment Plant, as well as MAG 21 projections for the availability of effluent from these two 22 wastewater treatment plants. After reviewing those figures, 23 is it still your opinion that Applicant s do not have an O 24 eesured sugp1y of weeer for Pe1e verde 2 A Yes.
O
2424 1
1 MS. BERNABIE: Thank you.
2 I have no further questions.
3 JUDGE LAZO: Mr. Gehr?
O 4 RECROSS EXAMINATION 5 BY MR. GEHR:
6 You have made a study of how many cases of the I Q 7 Supreme Court in reference to Masters?
, 8 A No, I have not.
9 Q In connection with your testimony respecting the 10 exchange of effluent for Indian CAP water prior to 2005, II had you previously testified that the ratio was not on a 12 one-to-one basis for those exchanges?
13 A That is what I testified.
14 Is it a two-to-one?
Q 15 A It is a two-to-one.
16 Two acre feet of effluent --
Q 17 A Of effluent for one acre foot of Indian CA- --
II i excuse me, CAP water.
I9 Is that one of the reasons you would suspect it Q
20 to be, or would you expect it to be less likely that Indian 21 exchanges would be implemented prior to 2005?
22 A That is one of the reasons I could have said two-23 to-one exchange.
C 24 Q The total amount I think you indicated for Indian 25 exchanges was 100,000 feet by the year 2035?
O
2425
$ 1 A That is what Mr. Steiner proposed to be exchanged.
2 Under the terms of the Indian contract I figured it out 3 once, and the amount that could be exchanged pursuant to the 4 term that defined exchanges in the contract is 107,000-plus 5 acre feet.
6 But it is my recollection that there were three Q
7 Indian Reservations in the State that could be expected to 8 use effluent on an exchange basis, is that correct?
9 A That is correct.
10 Two of those are in the Phoenix Area, is that Q
11 correct?
12 A That is correct.
13 And the third one is down in the Tucson general Q
14 area?
II A That is correct.
16 We have mentioned 0 What is the reservation there?
I7 the other two.
18 A The reservation in the Tucson area is a part of 39 the Papago Reservation, the Santaver (ph.) Indian Reserva-O tion, and the Schucktoak District.
21 So not all of the 100,000 exchange effluent would Q
22 be expected to be exchanged with the two Indian Reservations 23 Some of it will go down to Tucson, in the Phoenix Area.
g 24 is that correct?
5 Mr. Steiner assumes 100,000 A That is correct.
O 1
2426 O i ecte feet from thoee three reeervations. I have seen figures :
2 saying 17- to 13,000 acre feet expected to be exchanged in 3 the Tucson region in the Papagos (ph.).
4 0 As to any effluents that would be going to the 5 reservation in the Tucson Area, it would be effluent from 6 Tucson and not from Phoenix?
7 A That is correct. It would be effluent from 8 Tucson, 9 Q If -- I do not want to take the time, but if 10 there are figures in the Environmental Statement on alloca-Il tions respecting the division or anticipated division of 12 Indian exchanged effluent, would you accept those figures 13 in that statement?
O 14 A I would like to see the statement first before 15 to familiarize myself perhaps with it.
16 (Pause . )
17 MR. GEHR: I am going to drop the subject.
18 MR. DEWEY: I have a few questions.
19 JUDGE LAZO: Have you completed, Mr. Gehr?
20 MR. GEHR: Yes, I have.
21 JUDGE LAZO: Mr. Dewey?
22 FURTHER RECROSS EXAMANATION 23 BY MR. DEWEY:
O 24 o Mr. Mccain, was 1e the ineene of the Arizone II Municipal Water Users Association to operate the 91st Avenue O
2427 1 Plant at close to capacity?
(}
2 A We do not operate the plant. The plant is 3 operated by the City of Phoenix on behalf of the members
\~# 4 of SROG. It certainly makes good sense if you have a plant 5 of X capacity that you attempt to operate it at or near that 6 capacity.
7 0 You ' spoke about two kinds of effhant veter treat-8 ment plants, I believe, the smaller satellite plants and 9 what you refer to as the regional plants, is that correct?
10 A Under my terminology, I talk about the satellite 11 small treatment plants which are designed for reuse of the 12 effluent and in a rather immediate area. And the other ones 13 that I guess you could call sub-regional plants which were
() 14 -- I basically define as there are two or more cities con-15 tributing flows to,it.
16 Q Now the satellite plant, the smaller plants you 17 are referring to -- how many million gallons a day and --
18 A I think in most cases it is 2 million gallons per 19 day. That is what they are talking about when the talk 20 about satellite plants. Once again, that is what I talk 21 about. I am not sure if that is the exact thing comparable 22 to the definitions that are in this document.
23 0 Do you contemplate such small usage would sig-24 nificantly adversely affect the amount of effluent at the
(])
25 91st Avenue Plant?
l
2428 gjlbl 1 A According to the tables in here on pages IV-3 and 2 IV-4, there would be some effect, but it would not be large.
(~ 3 Q Would you say insignificant?
V) 4 A 1 wouldn't say insignificant. But I don't -- You 5 know, no major effect.
! 6 Q Now, on your regional plants that you have re-7 ferred to, what is the approximate date, the earliest date 8 that these plants will be developed?
9 A It depends very much on what the use of effluent 10 from those plants would be.
11 The northeast plant and a southeast plant would i
12 be built to, ideally, effectuate an exchange with the In-1
( 13 dians. I have testified that I do not think exchanges will
( ')
14 be necessary -- I think the probability is not great --
15 before the turn of the century. As I've said also, the i
l l .
16 Bureau of Reclamation in the worst possible case says 1992.
17 But I believe it's turn of the century or so. So that's 18 about the time that those plants would become necessary.
19 And I'm not sure what the lead-time construction l
20 is. But I'm sure it's not six months. So I think they might 21 start constructing them in the late 1990's. It could be 22 earlier, depending upon a variety of things.
23 Q Well, I believe you stated that until the year fs
(-) 24 2005, there will be a penalty for exchanging with the 25 Indians.
g a
.\_/
2429 1 A I wouldn't define it as a penalty. I would say 2{)
2 that the terms are not as advantageous. It's the two-to-3 one exchange ratio.
O 4 Cities that I represent hold that the value of 5 effluent is such that it is deserving of a one-to-one ex-6 change ratio. And until the year 2005, the Indian CAP con-7 tracts provide for a two-to-one exchange ratio; and after 8 that they will become a one-to-one exchange ratio..
9 Q So it would make more sense to actually start trad-10 ing after the year 2005.
11 A Not necessarily, because if you need water, you 12 need water.
l 13 According to the Indian subcontracts, and accord-l
() 14 ing to Mr. Steiner, you may start a trade in the year 2000 l
15 at two-to-one, but it switches to a one-to-one automatically 16 when the year 2005 comes around. That is, it's not that 17 all trades begun before the date 2005 will forever be an 18 exchange ratio of two to one. It's just that any exchanges 19 that take place before that time will be at that ratio.
20 Once the date changes to 2005, then they become a one-to-21 one exchange ratio.
22 0 Is it fair to say that the large regional plants 23 would primarily be built to take care of new growth?
24 A The subregional plants I have mentioned pri-(])
25 marily, I believe, would take care of perhaps new growth, I
l
2430 O ' ves-2 O New growth.
, s 3 A New growth rather than old growth, though there 1
4 will be some old growth that will be poked into it.
5 But essentially in the future they do plan for >
6 new growth.
7 JUDGE COLE: Mr. McCain, I don't know what you 8 mean by "old growth."
9 THE WITNESS: That's right, that doesn't make much 10 sense does it? Already existing connections.
11 JUDGE COLE: All right. Increased water use by 12 the current connectors?
13 THE WITNESS: No, no. I thi,nk what Mr. Dewey meant 14 or what I was trying to say was that to a large extent the 15 plants that will be built in the future will be built to l
16 take care of primarily anticipated growth in the future, 17 new connections. There will probably be some connections, l
18 that now divert their sewerage in other directions, that may 19 go to the new plant that is newly built.
20 JUDGE COLE: That is what you mean by "old growth?"
21 THE WITNESS: That is what I meant.
12 JUDGE COLE: Okay, thank you.
23 THE WITNESS: I'm sorry.
() 24 BY MR. DEWEY:
25 Q Is the 91st Avenue treatment plant located in a
()
i
2431
() 1 geograpt.ic location whereby it would not be desirable to 1 2 trade effluent with Indian tribes from this location?
{} 3 4
A I cannot really answer that in terms of any kind of economic feasibility or such. There is a possibility 5 discussed that some of that water could be pumped across i
6 the Salt and down roughly 51st Avenue to the Gila Indian 7 Reservation in the St. Johns area. But that does not appear 8 to be particularly feasible. It's far more feasible to 9 build new plants and locate the subregional plants in areas 10 closer to the point of reuse.
11 MR. DEWEY: I see. I have no further questions.
12 JUDGE LAZO: Ms. Bernabei, does the Intervenor 13 have any further questions?
O 14 MS. BERNABEI: No, I have no further questions.
15 I would renew my offer of Intervenor's Exhibit 16 XXXIX into evidence.
17 JUDGE LAZO: Yer s . Mr. Gehr?
18 MR. GEHR: I beg your pardon? I'm sorry.
19 JUDGE LAZO: Intervenor's Exhibit XXXIX, the com-20 puter pages of the well registry report, has been offered 21 into evidence, or she has renewed her offer into evidence.
22 MS. BERNABEI: Together with the legend.
23 JUDGE LAZO: Well, all right, together with the n
(_) 24 legend that is to be attached later.
25 MR. GEHR: Oh, And I said I was through with Mr.
i 2432 McCain, didn't I?
({) 1 2 Can I ask Mr. McCain some more questions about 3 this?
4 JUDGE LAZO: We'd better clear it up now.
5 FURTHER RECROSS EXAMINATION XXX 6 BY MR. GEHR:
7 Q Mr. McCain, do you think it's possible, turning 8 to the exhibit -- Do you think it's possible for all those 9 entries for which there is no shown pump capacity that there 10 is, in fact, no pump there? And that they might be holes 11 dug for purposes of developing soil samples or doing some 12 other kind of monitoring?
i 13 A I think that is possible because I know the defini-i 14 tion of "well" in the code. And there have been some prob-15 lems with the definition of " wells" subsequent to passage 16 of the code. But if we go back to the code itself, a well 17 is a hole in the ground from which something or the other 18 is withdrawn.
19 Q Has there been enough difficulty with that defini-20 tion of " wells" that the statute was amended this year?
21 A That is my understanding, that there was some 22 amendments to the code which included that. I have only --
23 I was not directly involved in that process. I believe I O
(,) 24 read it once. I think it was way back in April. And I l
25 believe that there was some amendment or modification made l l (Z) l
2433 1
which may have changed the definition. I do not know I
6(])
2 what it is, nor do I know if that piece of legislation passed 3 with the emergency clause -- which means I don't know if O 4 it is now the law or will have to wait until sometime in 5 July.
6 Q Well, if it is the law, I'm sure we can refer to 7 it in all of our briefs.
8 Do you know whether the Department of Resources 9 has issued any guidance on the definition of exempt wells?
10 A I believe they did issue one almost immediately --
11 soon -- I think it was the summer of 1980 -- which was sent 12 out, because there were a number of.; concerns among individu-13 als whether or not they had an exempt well and what that 14 means. I can't say for sure, but I seem to recollect a 15 policy memorandum of some sort in the summer of 1980.
16 Q Would it surprise you to learn that the Arizona 17 Department of Water Resources, in Policy Guidance Memorandum 18 No. 1, issued July 21, 1981, would have defined an " exempt 19 well" to say: "The groundwater code defines an exempt well 20 as a well having a pump with a maximum capacity of not more 21 than 35 gallons per minute.from which groundwater is with-22 drawn for domestic purposes including the application of 23 groundwater to not more than" --
at the time this was 24 issued - "one acre of land where the plants or produce are
(])
25 not sold. The Department considers that the ' domestic O
2434
([) I purpose,' as used in the definition of an exempt well, 2 means all non-irrigation uses. However, where a non-irri-3 gation use is being served by one exempt well, no more ex-4 empt wells may be drilled to withdraw groundwater for the 5 same irrigation use. It is illegal to change the pump capa-6 city of an exempt well to more than 35 gallons per minute."
7 Would that surprise you, that that definition had 8 been given?
9 MS. BERNABEI: I'm going to object to this. What 10 Mr. Gehr has just read from is a memo that has been super-11 ceded, as I understand it, by a new memo by the Department 12 of Water Resources, the text of which I don't have before 13 me. But as I understand it, the Deputy Director, Mr.
()
14 Maughan, who signed one of the letters that has been ad-15 mitted into evidence, has developed a new policy; and that 16 the policy letter or memorandum Mr. Gehr read is no longer 17 in effect. I don't have it before me, but I could have it 18 by sometime tomorrow morning.
19 I'm going to object to an effectively superceded 20 memo being referred to'this witness.
l 21 MR. GEHR: I won't demand an answer to that ques-l 22 tion. I'll wait for the new memo.
l 23 JUDGE LAZO: When Mr. McCain~ defined an " exempt
() 24 well" in his direct testimony, were you reading from a code?
25 Or were you reading it from a Department memo?
O I
o
- v
l 2435 l
() 1 THE WITNESS: Code.
2 JUDGE LAZO: Code, thank you.
3 BY MR. GEHR:
4 Q Did I ask you whether a monitoring well would be 5 an exempt well?
6 A No, you asked me if a monitoring well would be 7 an industrial well, I believe.
8 Q Oh. Would a monitoring well, do you think, be 9 an exempt well?
10 A I believe it could be so defined.
11 Q Did the amendment of the statute this past year, 12 irrespective of when it takes effect, deal also with moni-13 toring wells?
O 14 A I believe it did. But I can't say for sure.
15 Q Do you have any reason, on the basis of examining
~
16 this well-registry report, of assuming that none of these 17 are monitoring wells? ,
18 19 20 21 22 23
() 24 25 i O
k
2436 T28,1g 1 A So that none of them are?
2 0 Yes.
3 A I can't tell on the basis of this.
( 4 Q Therefore, you would concede that some of them 5 might be?
i 6 A some of them might be.
, 7 0 On this basis alone, I suggest that there has beer t 8 no tie-in of this well registry report to an industrial use.
i 9 MR. GEHR: It is net relevant.
10 MS. BERNABEI: I would say this, that Mr. McCain 11 testified as to exempt well from his knowledge of the 12 Groundwater Act. His opinion, as stated here today about
() 13 what an exempt well is has been in fact borne out by a recent 14 memo, of which I don't have a copy of at the current time, 15 but I can supply to the Board by the Deputy Director of the 16 Department of Water Resources.
17 It is in part a reversal of position in a memo 18 that is taken, in the memo that Mr. Gehr just read into the 19 record. Mr. Maughan, as I understand it, issued a memo that 20 said that no more than one exempt well can be used for an 21 industrial purpose, which contradicts the earlier memo.
22
({} JUDGE LAZO: Ms. Bernabei, let us address the 23 relevancy of this Exhibit, and I must confess that it 24 mystifies me, too.
({} This well registry report would appear to 25 include a listing of several wells, whatever they are, where
2437 2 1 ANPP has been identified as the Applicant, but what is the
(]) 2 relevance of that as f ar as this proceeding is concerned?
3 MS. BERNABEI: As far as this proceeding, there
() 4 is some question as to the ultimate heat sink and the use of 5 wells that are currently being used for the domestic water 6 system, for the ultimate heat sink, and in addition, the
( 7 drilling of new wells f or use as a primary source - to the 8 ultimate heat sink.
9 As we stated, or as has been introduced into the 10 record, the Applicant has not received a certificate, or a 11 permit from the Department of Water Resources for certain l
l 12 grandfather rights. I believe that was the subject of the 13 two letters that were introduced. They have also --
(')
l 14 JUDGE LAZO: Are any of those wells included in i .
l 15 this report?
16 MS. BERNABEI: Well, yes, they certainly -- I 17 assume they would be. .This is a well registry report, and I 18 am not sure exactly which wells, but I assume that at leas t 19 some of them would be wells from the domestic water system 1
20 that are currently operated or that will be operated, and 21 that may be used for the ultimate heat sink. They are not 22 numbered as they are numbered in the FSAR.
23 MR. DEWEY: I have just -- to help --
, g3 24 JUDGE LAZO: I am sorry, we can't hear you, Mr.
l (m) l 25 Dewey.
l 2438 l 3 1 MR. DEWEY: Just to help the Board, Mr. Gonzales
() 2 believes that a couple of these wells might be the wells for 3 the ultimate heat sink. Did you hear me? ,
() 4 JUDGE LAZO: I heard you.
l 5 MS. BERNABEI: That is the relevance. That is 6 the relevance. The problem is that we can't identify from l 7 this sheet the numbers, as they are identified in the FSAR.
8 I believe that this is -- what the Department of Water 9 Resources issues is a comprehensive list of wells for ANPP.
10 Included among those, I believe, are the wells 11 that are used for the ultimate heat sink.
12 JUDGE LAZO: Well, is somebody going to testify 13 to that effect?
({}
14 MS. BERNABEI: As soon as we fird out, I hope so.
15 I mean, the Applicants have the information within their 16 possession. Neither the Department of Water Resources nor 17 Mr. McCain has that information within there. We will link 18 it up as soon as we can find out which of these wells are 19 going to be used for the ultimate heat sink.
20 The Applicant has not said that -- well, I don't 21 believe they have fully identified which wells will be used.
22 JUDGE LAZO: At the moment, it is virtually a br' 23 useless Exhibit for us. I don't see how we can base any l
24 finding on it, considering its present status.
25 MS. BERNABEI: Well, then I think the Applicant i
2439 4 1 should provide a witness to us. I believe -- I thought Mr.
() 2 Van Brunt could testify about the ultimate heat sink. He 3 obviously was unable to talk about wells that provide water
() 4 for the ultimate heat sink.
5 JUDGE LAZO: He was able to talk about wells and 6 the ultimate heat sink. He was not able to talk about this 7 registry report, because he hadn't seen one before. It is 8 your document.
9 . MS. BERNABEI: Well, I didn't show him this. He 10 didn't know anything about the well applications or the 11 rights. He knew in a vague sense that a well was going to 12 be drilled, or --
13 JUDGE LAZO: That is different. That is not the
(])
14 present domestic well. That would be the emergency well, 15 that after a safe shutdown.
16 MS. BERNABEI: Well, then what I would like is 17 for an Applicants' witness -- I don't know, perhaps Mr.
18 Bingham would know -- to testify as to whether or not these 19 wells do in fact provide water for the ultimate heat sink.
20 I believe Mr. Gonzales, who is familiar with it, has said 21 that they do.
22 MR. DEWEY: Well, let me explain something.
) '
23 MR. GEHR: Just a minute. Mr. Van Brunt only 24 talked about his lack of f mniliarity with an application 25 for grandfather water rights. That relates to -- is so
r 5 1 totally dif f erent than any well permit. You can handle 2 grandf ather right and never drill a well.
3 MS. BERNABEI: I didn't ask him this question, 4 because I assumed if he didn't know about the grandfather 5 rights, he wouldn't know about this level of specificity.
6 If Mr. Gonzales knows, that is fine. I believe he stated 7' he believes that these may be used.
8 JUDGE LAZO: Let us hear what Mr. Dewr nas to 9 say.
10 MR. DEWEY: If I can help, this might be helpful.
11 All we are going on is this. There is a letter of June 17, 12 letter to Mr. Tedesco, that everyone is familiar with, that is
() 13 an Exhibit in this case, and it outlines the matter of the 14 ultimate heat sink, and in that letter, there is several 15 wells that are identified. One is that -- the identification 16 is 22DDC, is identified in the letter. Okay, on the 17 Intervenor proposed Exhibit, there is also -- one of the 18 wells down here, it is the fourth one from the top on page 19 17, is 27DDC.
20 Then when you go down to page -- and you see 21 also a well identified as 34ABB, in the letter, the letter
() 22 identifies a well as 34BBB, as one of the wells in the 23 ultimate heat sink. 34ABB.
24 MR. GEHR:
(]) And those same wells show a date 25 complete of 3-31-1982, and the wells we are talking about
2441 l 6 I were built before we acquired the property, under Mr. Van '
(]) 2 Brunt's testimony, refurbished back in 1976.
3 MS. BERNABEI: Well, I don't know what that has to i
() 4 do with this, but if these wells specifically are used for i 5 the ultimate heat sink, they are labelled "E".
l 6 Now, as I understand it, those -- well, at least 7 Mr. McCain's testimony is that those cannot be used for i
I 8 industrial purposes. We have a memo which we can introduce l
i 9 tommorrow,.that says that no more than one exempt well can be l
10 used for industrial purposes. That was a recently issued 11 memorandum in the Department of Water Resources. It seems to 12 me that there is some disorder in terms of the Applicants' l
l 13 we lls , and that should be examined, especially when they have
)
14 to do with the ultimate heat sink.
15 That is essentially what we are saying.
16 JUDGE LAZO: The problem is we haven't had any 17 witness testify about the ultimate heat sink who has 18 expressed an opinion based partially or totally upon this t
I 19 proposed Exhibit. It is just a floating document that has 20 very little relevance --
l 21 MS. BERNABEI: Well, then we will ask -- then we 22 will call a witness -- then we will call an Applicants' 23 witness. obviously we don't have this information within our 7s 24 possession, and we can't expect to get it when the Applicant V
25 won't give it to us. We have tried to do what we can. We
2442 7 1 understand, from the Department of Water Resources, on our
() 2 own research, that this is a complete well registry. It 3 appears --
() 4 JUDGE LAZO: Pardon me. That it is a complete 5 well registry?
6 MS. BERNABEI: Yes, it says well registry report.
7 I believe for ANPP, this is as complete as the Department of 8 Water Resources ever is, is a registry of what is at the 9 site.
- 10 It appears from what Mr. Gonzales said and from 11 Mr. Van Brunt's letter that two of the wells listed on here 12 are in f act the wells to provide water for the ultimate . heat 13 sink.
(]) If Applicants can demonstrate it is not, or if they 14 can provide a witness that says it is not, then fine. I 15 haven't heard anything that Mr. Gehr says that indicates that 16 these wells are not the wells referred to in Mr. Van Brunt's 17 letter. We will recall Mr. Van Brunt, if that is necessary.
18 MR. GEHR: That is ridiculous. At no time, never, 19 and even right now, I haven't heard the Intervenor ask me to 20 produce anything about well permits, any of them.
21 MS. BERNABEI: That is not true. After the last 22 hearing, I did. I asked Mr. Gehr exactly that question. I 23 asked him --
<g 24 MR. GEHR: No, you asked me about grandfathered U
15 rights.
' ~~
- ___ _- _- . .. . . . . - . A
8 g MS. BERNABEI: No, let me finish. Attheenk O 2 the last hearing, we had a discussion about whether or not 3 the Applicants had permits. Our research at that time showed O 4 that ehey hed no permite for we11e for the stee. I eexed 5 him, I said, am I wrong? Is that incorrect, and he told me, 6 and I am saying it in as close words as I can, we don't 7 need them, because we have grandfathered rights that are g recognized by statute. I said, that is not my understanding 9 of the statute, and he started to laugh, and he said,.well, 10 y u d n't understand it.
11 We did further research with the Department of 12 Water Resources, and we found out that in fact our legal O 13 interpretation was c rrect. They do in fact need permits 14 to recognize those grandfather rights. And we found also in 15 the well registry report the following two wells.
16 JUDGE LAZO: We are spending more time than we 17 should on this . At this point it is my opinion that you 18 would not be able to base a finding of fact upon this Exhibit.
, 19 It simply has not been tied into the contention at issue 20 here. It is not relevant. Now, maybe by the time Mr.
j 21 Gonzales finishes testifying, it will be, but --
22 MS. BERNABEI: Well, that~is fine. If Mr.
23 Gonzales --
24 JUDGE LAZO: But it isn't at the moment.
25 MS. BERNABEI: Well, that is fine.
~
i 1 JUDGE CALLIHAN: Mr..McCain?
2 THE WITNESS: res?
3 JUDGE CALLIHAN: From what is an exempt well O 4 exempt?
5 THE WITNESS: It is exempt from having a 6 measuring device which can record the amount of water f
7 withdrawn from that well. That is basically what it means.
8 I also believe it is a -- if I remember correctly -- since 9 it does not have a measuring device on it, or need a i
10 measuring device, it is therefore exempt from the pump tax.
11 JUDGE CALLIHAN: Thank you very much.
12 JUDGE LAZO: Mr. McCain would sure like to be
!O 13 excused, I imagine. He has been on the witness stand a i
l 14 long time. Are there any more questions of the witness?
15 MS. BEstNABEI: No other questions.
16 MR. DEWEY: No further questions.
17 MR. GEHR: No questions.
18 JUDGE LAZO: Mr. McCain, we want to thank you 19 very much for you coming here and offering your testimony.
20 We do appreciate it, and you have been helpful.
21 THE WITNESS: I appreciate the opportunity.
22 ,
JUDGE LAZO: Thank you. You may be excused.
23 There are a couple of matters regarding some of O 24 the other Exhibits that I would like to clear up. Joint 25 Applicants' Exhibit JJ, which was the Leonard Halpenny matter,
2445 10 1 six pages, a covering letter, and an attached report, we
(]) 2 still haven't seen. You were to provide us with copies.
3 MR. GEHR: I apologize. I shall, first thing in
({} 4 the morning.
5 JUDGE LAZO: All right. And Mr. Van Brunt's 6 letter of June 17, which was identified as Intervenor's 7 Exhibit XXXV, inadvertently was not offered into evidence.
8 MS. BERNABEI: I would of fer it into evidence, 9 then*, at this time.
10 MR. GEHR: No objection.
11 JUDGE LAZO: No objections?
12 MR. DEWEY: No objection.
(} 13 JUDGE LAZO: Very well. Intervenor's Exhibit 14 XXXV may be received in evidence.
15 (Intervenor's Exhibit No. XXXV 16 was thereupon received into .
17 evidence.)
18 JUDGE LAZO: I think a mistake was made 19 yesterday at the time Exhibit XXXVI was received. We also 20 stated that Exhibit XXXVII would be received at that same 21 time. Apparently, that was missed in the transcript, and so 22 we will just instruct the reporter to note that XXXVI and
)
23 XXXVII were both received yesterday, and today's transcript 24 should probably reflect that f act.
25
2446 11 1 (Intervenor's Exhibits XXXVI and
([) 2 XXXVII were received into 3 evidence.)
4 4
(]) JUDGE LAZO: Now, Mr. Gehr dropped on our bench 5 this morning three copies of the final plan, July, 1979.
6 This is MAG 208, an earlier version. I am going to leave 7 it here until he tells us sometime what we should do with it.
8 MR. GEHR: I should like to of fer the document i 9 as Applicants ' Exhibit MM. Those are chocolate-covered --
10 covered chocolate --
11 12 14 15 16 17 18 19 20 21 22
(:)
23 24
() 2s
2447 T-^ 1 1 JUDGE LAZO: Are there any objections to the re-0 2 ceipt into evidence of --
3 MS. BERNABEI: No objection.
4 MR. DEWEY: No objection.
5 JUDGE LAZO: Those who have to carry it home may 6 have some objection. But.
XXX 7 (The document referred to was 8 marked for identification as 9 Joint Applicants' Exhibit MM.
10 and was received in evidence.)
11 JUDGE LAZO: Now, for planning purposes, leaving 12 aside for the moment the question of whether or not Mr. Hulse 13 will testify, what is the likelihood that we will complete
() 14 the testimony of Mr. Licitra, Mr. Gonzales and Mr. Bingham 15 tomorrow, or Friday? I think we would like to have the views 16 of the parties regarding that.
17 MR. DEWEY: Well, Staff plans on putting on Mr.
18 Gonzales to introduce his prepared testimony. And, there-19 fore, that would just take a very short time. It depends 20 on how much cross-examination is involved.
21 As far as Mr. Licitra and Mr. Gonzales both testi-22 fying, they are just going to be on to answer limited ques-23 tions about the heat sink. I would hope that that wouldn't 24 take very long.
{"}
25 We do not anticipate very much cross-examination
2448 1 of Mr. Bingham.
2{ }
2 So as far as we are concerned, our things will 3 be very swift for tomorrow, our testimony.
O 4 JUDGE LAZO: Ms. Bernabei?
5 MS. BERNABEI: I think it's pretty unlikely that 6 we will finish tomorrow. I would anticipate that at least 7 Mr. Bingham would go over to another day. And of the wit-8 nesses he has mentioned, probably the most extensive cross-9 examination would be of Mr. Bingham.
10 JUDGE LAZO: Your microphone is not connected to 11 the room. It only goes to the reporter.
12 Oh, you do have it on.
13 MS. BERNABEI: I think it is, and I'm just not O)
(_ 14 talking loud enough.
15 Of the witnesses that are still before us, I ima-16 gine that Mr. Bingham will be the most extensive cross for 17 Intervenor. But at the rate we have been going, I wouldn't l
18 anticipate that we would reach him before the day after 19 tomorrow. Hopefully, we would. But I don't anticipate that 20 we would be able to finish --
21 JUDGE LAZO: You would not reach Mr. Bingham until 22 the day after tomorrow?
23 MS. BERNABEI: He is not my witness. But I just
, (")
'v 24 don't know. I don't think we'll be able to finish Mr.
> 25 Bingham Friday.
O
1 I
l l
1 NUCLEAR REGULATORY COMMISSION This is to certify that the attached proceedings before the Atomic Safety and Licensing Board Nuclear Regulatory Commission in the matter ef: Ariz na Public Service Company, et al Palo Verde Nuclear Generating Station, Units 1, 2 and 3 Date of Proceeding: Thursday, June 24, 1982 Docket llumber: 50-528/529/530 OL
? lace of Proceeding: Phoenix, Arizona l were held as herein appears, and that this is the original transcript thereof for the file of the Commission.
Horace W. Briggs Official Reporter (Typed)
O trace b1/ / p hr Official Reporter (Signature) 4 O
O