ML20196E517
| ML20196E517 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 12/01/1998 |
| From: | Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#498-19769 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9812040031 | |
| Download: ML20196E517 (41) | |
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DOC E ED USHRC
% DEC -3 P4 :15 December 1,1998 UNITED STATES OF AME(Q -
. _ r; y NUCLEAR REGULATORY COMMISSION:
i ADJUL AFF Before the Atomic Safety and Licensine Board In the Matter of
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- PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72-22
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI APPLICANT'S ANSWER TO PETITION TO INTERVENE AND CONTENTIONS OF SOUTHERN UTAH WILDERNESS ALLIANCE Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") hereby submits its answers to the Southern Utah Wilderness Alliance's ("SUWA")" Request for Hearing and Petition to Intervene" ("SUWA Pet."), and " Contentions Regarding Private Fuel Storage Facility License Application (The Low Rail Spur)" ("SUWA Cont."), both dated Novem-ber 18,1998.3 PFS submits that SUWA's petition to intervene should be denied, in that (1) SUWA lacks standing, (2) SUWA has not justified its late intervention, and (3) SUWA has not advanced a single litigable contention.
1 1.
FACTUAL AND LEGAL BACKGROUND SUWA claims that it is " dedicated to obtaining wilderness designation for qualify-ing BLM [ Bureau of Land Management] roadless areas" and that the construction of the Low rail spur would " disqualify the [ North Cedar Mountains] [ roadless] area for wilder-
' On August 28,1998, PFS filed an amendment to the license application w hich (1) moved the rail spur from the Skull Valley road corndor to a corridor running from Low, Utah along the western side of Skull Valley to the Skull Valley Reservation (the " Low Corridor"), and (2) moved the Intermodal Transfer Point
("ITP") 1.8 miles west ofits original location.
9812040031 981201 PDR ADOCK 07200022
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ness designation." SUWA Pet. at 14. As can be seen from the map at Exhibit 2 to its pe-tition, SUWA's self described " North Cedar Mountains roadless area" -- located just one 1
to three miles south ofInterstate 80 and the main Union Pacific rail line -- is approxi-i mately five miles wide (east to west) and seven miles long (north to south). PFS's rail spur affects only a thin sliver of that area. The rail spur passes through the area only one half to three quarters of a mile from its easternmost edge, for a distance ofless than three 2
miles of the 32 mile rail route Moreover, as seen from the profile maps in the Environ-mental Report ("ER"), the rail spur never actually enters the North Cedar Mountains, but lies entirely within the Skull Valley below. Ses ER Figs. 2.1-1 and 3.2-2 (Sheet 2).
I Under the Federal Land Policy and Management Act of 1976 ("FLPMA"), the Secretary of the Interior is the federal official responsible for reviewing BLM land for po-tential designation as wilderness. The Secretary is to review "those roadless areas of five thousand acres or more., of the public lands, identified.. as having wilderness char-acteristics described in the Wilderness Act" and report to the President on "the suitability or nonsuitability of each such area.. for preservation as wilderness." 43 U.S.C. Q 1782(a). The President must then advise Congress of those areas he recommends be des-2 Seg id; see also ER Fig. 3.2-2 (Sheet 2). The roads and other information in this figure are drawn from United States Geological Survey Maps, Delle, Utah, N4045-W112450.5 and Hastings Pass NE, Utah.
N4037.5 W11245n.5, attached as Exhibit I (the rail spur is depicted by a dark line on the USGS maps).
By ccmparing ER Figure 3.2-2 and the USGS maps with SUWA's Exhibit 2, it appears that the small parcel ofland of SUWA's " North Cedar Mountains roadless area" through which the proposed rail spur would pass is bounded on three sides by existing roads. The entire casternmost boundary (one half to three quarters mile from the rail line) appears to be a road which runs parallel to the proposed rail line and both the nonh and south boundaries appear to be roads which cross the path of the proposed rail spur.
Thus, roads clearly exist in the close vicinity of where the proposed rail spur would pass through this small parcel and appear to cross the spur at the north and south boundaries of the parcel.
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l ignated as wilderness, but Congress must make the final designation by passing a statute.
43 U.S.C.
1782(b).'
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l In 197.9-80, BLM reviewed and conducted an " intensive inventory" of the Nonh Cedar Mountains pursuant to FLPMA and " dropped [them] from further consideration as wilderness because oflack of wilderness characteristics.. " 45 Fed. Reg. 75,602, 75,603-04 (1980). In doing so, BLM reasoned and concluded as follows:
The lack of" outstanding" potential, or opportunity for solitude and/or primitive and unconfined recreational experience should drop [the North Cedar Mountains area] from further wilderness inventory consideration.
Man's imprints are substantially noticeable within the unit. Natural
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screening contributes little to hide or enclose man and his contrasting influ-ences. Recreation opportunities exist but all are encumbered by man's de-velopments.'
Funher, in 1990, BLM also declined to recommend for designation as wilderness the adja-cent Cedar Mountains Wilderness Study Area (WSA) to the south, which it had identified (in 1980) far further consideration.' BLM concluded: "The area is natural but the op-portunity for primitive and unconfined recreat:on is not outstanding. Water is lacking,
' The Wilderness Act of Sept. 3,1964, imposes similar requirements and processes for areas within na-tional forests, national parks national wildlife refuges, and national game ranges.16 U.S C. f f 1131 et seg. Further, the Wildemess Act characterizes a wilderness as an area "which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unno-ticeable; (2) has outstanding opponunities for solitude or a primitive and unconfined type of recreation; (3).. and (4) may also contain ecological, geological, or other features of scientific, educational. scenic, or historical value." 16 U.S C. f 1311(c). The third criterion is whether the area includes at least 5,000 acres ofland.16 U.S.C. { 1311(c)(3).
- BLM Intensive Wilderness Inventory. Final Decision on Wilderness Study Areas. Utah (November 1980), relevant excerpts attached as Exhibit 2. BLM's decision on the North Cedar Mountains was not
. protested after it was issued. 45 Fed. Reg. 86.558 (1980).
l 5 2 Utah BLM Statewide Wilderness Final Ernironmental Impact Statement at Cedar Mountains WSA 1, 17 (1990) (hereinafter " Utah Wilderness FEIS"), relevant excerpts attached as Exhibit 3. The Cedar Mountains WSA generally corresponds to the Central Cedar Mountain area identified on SUWA's map at l
Exhibit 2 to its petition.
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vegetation lacks variety, and scenic values are common. Supplemental values are lacking in most of the area." 1 Utah Wildetness FEIS at 340 (Table 11.2).
SUWA claims that it has been trying to have the adjacent Cedar Mountains WS A to the south (and other areas in Utah covering some 5.7 million acres) designated as wil-derness through House bill H.R.1500.' That bill, however, has been introduced every l
year since 1989 and has still not passed. Utah v. Babbitt,137 F.3d 1193,1199 n. 4 (10th Cir.1998). Indeed, it has never been reponed out of committee.' Moreover, H.R.1500 does not include the Nonh Cedar Mountains. H.R.1500 101; gg SUWA Pet. at 5.
SUWA's new proposal, based on its "reinventory" of BLM lands, to designate 8.5 million acres of Utah as wilderness, including the Nonh Cedar Mountains, has not even been in-l troduced in Congress. SUWA Petition at 4-5.' Indeed, SUWA's own exhibit labels the
- proposal as a "wish list" and further notes that the Director of SUWA himself has said that "the new 8.5-million-acre figure is a starting point" for negotiations "with politicians to determine which of these areas should be included in a new wilderness bill."'
- SUWA Petition at 3-4; H.R.1500,105th Cong.,1st Sess. (1997),105 Bill Tracking H.R.1500 (LEXIS, Legis Library BLTRCK File).
' Library of Congress On-Line Legislative Information Senice, http:// thomas loc. gov /home/ thomas 2.html, see also LEXIS Bill Tracking Report, H.R.1500, supra note 6.
' Although SUWA refers to a reinventory being done by BLM (SUWA Pet. at 4-5) that reinventor) covers only the lands cited in H.R.1500 and, hence, not the North Cedar Mountains. Babbitt,137 F.3d at 1199.
- Brent Israelsen," Wilderness Wish List: 8.5 Million Acres." The Salt Lake Tribune, July 9,1998.
SUWA Pet., Ed 1.
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II. SUWA LACKS STANDING TO INTERVENE A party wishing to intervene in an adjudicatory proceeding concerning a proposed licensing action must establish that it (1) has filed a timely intervention petition or meets the standards that per-mit consideration of an untimely petition; (2) has standing to intervene; and (3) has proffered one or more contentions that are litigable in the proceed-ing.
Private Fuel Storage. L.L C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,167 (1998)(hereinaner"LBP-98-7,47 NRC at _").
To determine whether a pany has standing, the agency has applied "contempora-neous judicial standing concepts" that require the party to establish:
(1) it has suffered or will suffer a distinct and palpable injury that consti-tutes injury-in-fact within the zones ofinterests arguably protected by the governing statue (e.g.. the Atomic Energy Act of 1954 (AEA), the Na-tional Environmental Policy Act of 1969 ( NEPA);
(2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.
Ld at 167-68.
m SUWA lacks standing to intervene because it has not shown that it has suffered or will suffer injury-in-fact from the licensing of the Applicant's ISFSI. In order to establish standing, as an organization, SUWA must show that the action in question has caused or will cause harm to its organizational interests or the interests of at least one ofits mem-bers. Yankee Atomic Electric Company (Yankee Nuclear Power Station), CLI-94-3,39 NRC 95,102 n.10 (1994). It has done neither. Further, while a presiding officer may al-low a petitioner to intervene as matter of discretion upon the consideration of six pertinent 5
1 factors, sg LBP-98-7,47 NRC at 168 (quoting Portland General Electric Company (Peb-ble Springs Nuclear Plant, Units 1 & 2), CL1-76-27,4 NRC 610,616 (1976)), SUWA's intervention here is not warranted under that test either.
A.
SUWA Will Not Suffer Harm as an Organization SUWA lacks standing in its own right because the proposed action will not harm SUWA as an organization. SUWA fails to show that the construction of the PFS's Low l
rail spur will harm SUWA as an organization as opposed to its generalized interest in the designation ofland as wilderness. Further, even assuming that SUWA's generalized inter-est in the designation ofland as wilderness could proside it with organizational standing, that interest -- as asserted with respect to the land to be traversed by the PFS's rail spur --
is nonexistent or too conjectural to proside SUWA with standing here.
1.
SUWA's Interest in Wilderness Preservation Does not Provide Standing SUWA states that it is " dedicated to identifying and protecting BLM roadless ar-eas which possess wilderness character" and that it " seeks to protect those lands in their present condition until Congress has the opportunity to designate them as wilderness.
SUWA Pet. at 2-3. SUWA claims that "[a]s a result of this organizational mandate, [it]
has a profound interest in insuring that the Low Rail Spur does not adversely impact the North Cedar Mountain roadless area and therefore does not impair the wilderness charac-ter of the area." Id at 3. It also claims involvement in " citizen oversight, review, and m
comment upon government decisionmaking affecting BLM lands" and to have a mission "to inform SUWA members and others about threats to the environment." Catlin Dec. TS 18-19.
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l These interests, however profound they may appear to be, are not sufficient to provide an organization with standing in its own right to intervene in a licensing proceed-ing If they were a petitioner like SUWA would have standing anywhere in Utah or in -
deed anywhere in the United States. As stated by the Appeal Board in Florida Power 4; Linht Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521,529 (1991):
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[W] hen an environmental organization seeks to intervene in its own right, independent ofits status as a representative of one or more ofits members, l
. it must demonstrate an iniurv in fact to the organization within the zone ofinterests ofIthe AEA or NEPAL.
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l (Emphasis added.) The standard required for an organization to show injury-in-fact is the same as that for an individual: the organization must show "a real or threatened harm, not 1
merely an academic interest in a matter." Ld. As stated by the Appeal Board:
l An organization's assened purposes and interests, whether national or local in scope, do not, without more, establish independent organizational standing. As the Supreme Court stated in Sierra Club v. Morton,"a mere
' interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient to render the organization 'edversely affected' or ' aggrieved.
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Lt at 530 (quoting Sierra Club v. Morton,405 U.S. 727,739 (1972))(emphasis added).
In Turkey Point, the Appeal Board affirmed the denial of standing to a local or-y
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ganization seeking to challenge a plant's license amendment, where the organization's l
" primary purpose [was] focused on providing for public safety and for the protection of i
the environment as a whole regarding Nuclear Power Generation" and where a further l
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. mission of the organization was to educate the local public about the plant by distributing 7
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l information and conducting seminars. ALAB-952,33 NRC at 529-30 (footnote omitted).
The Appeal Board held that asserted harm to such organizational interests did not "dem-j onstrate an injury in fact to an organizational interest., that is within the zone ofinter-ests of the applicable statutes." Ld. Here, SUWA's purpose of preserving lands so they l
can be designated as wilderness and its mission to inform others of threats to the environ-
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ment are no different from the Turkey Point petitioner's purpose of pr.scting the local l
public and the environment and its mission to provide education. Therefore, like the peti-tioner in Turkey Point, SUWA's possesses no standing in its own right.'
SUWA's Asserted Interest is Not Legally Sufficient to Establish Standing 2.
Even if SUWA's interest in the designation ofland as wilderness were an interest of the type that could provide an organization with standing -- which it is not -- that inter-est, as assened with respect to the land to be traversed by PFS's proposed rail spur, is ei-ther legally non-existent or, alternatively, too conjectural to provide SUWA with standing.
When a petitioner claims standing through injury to an asserted interest or right, it i
must show that the interest or right exists in the first place. S.ee Babbitt,137 F.3d at 1207 e
i (quoting Clavbrook v. Slater,111 F.3d 904,907 (D.C. Cir.1997)("If the plaintifl's claim has no foundation in law, he has no legally protected interest and thus no standing to sue."); Ariav Assocs. Inc. v Bush,891 F.2d 894,898 (Fed. Cir.1989)("{a]ppellants lack standing because the injury they assert is to a nonexistent right"). Moreover, the potential
'* An organization can have standing in its own nght by, for example, owning property that could poten-tially be hanned in the event of a release of radioactive material from a nearby nuclear facility. Ec. ear.
e Seouovah Fuels Corporation (Gore, Oklahoma Site), LBP-94-19,40 NRC 9,14-15 (1994). Such is clearly not the case here.
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future existence of the interest, alone, is insufficient; the interest must be more than " con-jectural" or a " mere possibility." Sm Houston Lighting and Power Comoany (Allens a
Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239,242 (1980); c(In-ternational Uranium (US A) Corooration (White Mesa Uranium Mill), CL1-98-6,47 NRC 116,117 (1998) (asserted future injury to interest must be "particular and concrete, as op-posed to being conjectural or hypothetical").
Here, as discussed in Section I above, the federal agency responsible for making wilderness designation recommendations, BLM, has specifically considered recommending the North Cedar Mountains as a wilderness area and expressly found that it does not qual-ify for such designation. No challenge was made to this finding. BLM also considered and rejected, after further study, potential wilderness designation for the adjacent Cedar Mountains area to the south -- further removed from imprints of civilization such as Inter-state 80 and the main Union Pacific rail line. Thus, the responsible federal agency has de-termined that the interest sought to be protected by SUWA in this licensing proceeding --
the designation of the North Cedar Mountains area as wilderness under the FLPMA and the Wilderness Act -- does not exist and hence cannot provide SUWA with standing. The Board must respect this determination made by the responsible federal agency. Sn Hydro Resources. Inc. (2929 Coors Road Suite 101, Albuquerque, NM 87120), CL1-98-16,48 NRC _, slip op. at 2 (Sept.15,1998)(the NRC should not resolve questions left to other regulatory bodies).
Further, apan from claiming that the Nonh Cedar Mountains generally should be designated as wilderness, SUWA says nothing about the specific parcel ofland through 9
which PFS's rail spur would pass. As discussed above, this parcel is but a srnall slice of the easternmost edge of the area -,approximately two square miles -- bounded on three sides by existing roads (as shown on USGS maps). SUWA (and its affiant, Mr. Catlin) frequently discuss the North Cedar Mountains but provide no facts concerning the wilder-ness characteristics or roadlessness of the parcel ofland to be crossed by the spur." Thus, i
even if SUWA has some cognizable interest in the Cedar Mountains generally, it has dem-onstrated no such interest in the particular tract ofiand to be traversed by the rail spur.
i The Board should not accept SUWA's broad, conclusory assertion regarding the nature of this land as a basis for standing where it is rebutted by the uncontroverted administrative j
determination by the governmental agency explicitly charged to make those determina-tions. Sg Yankee Atomic, CLI-94-3,39 NRC at 102 n.10 (petitioner denied standing where it claimed that its members lived "close" to radioactive waste shipment routes with-out identifying the routes or explaining how close to the routes its members lived).
4 Moreover, even assuming that SUWA has an existing interest in having the land i
through which PFS's rail line will pass designated as wilderness, that interest is at best conjectural Absent direct recourse to Congress, for the land to be designated as wilder-ness, BLM would have to reverse its prior determination and designate it as a wilderness study area; the secretary of the Interior would then have to recommend to the President that the land be designated as wilderness; the President would have to make a similar rec-ommendation to Congress; and Congress would have to pass a statute to make the final
" See SUWA Pet. at 2,3,5,8-9,11,13,14,16; SUWA Cont. at 2-5; Catlin Dec. at t1 15-17.
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designation. Su Section 1, supra This is a long, arduous, uncertain process in which not even the first step has yet been taken. Indeed, the Tenth Circuit has found that a claim of l
impending injury from Congress' potential designation of BLM land in Utah as wilderness i
ue following such a process to be " conjecture based upon speculation that is bottomed on surmise." Babbitt,137 F.3d at 1210 n.25.
l Assumed vindication of SUWA's interest by direct recourse to Congress would be similar" conjecture based upon speculation that is bottomed on surmise." As discussed above, SUWA has been trying to get the adjacent Cedar Mountains area to the south (and other areas in Utah) designated as wilderness by Congress for the last ten years, but has failed, and SUWA's own director has indicated that it latest proposal of 8.5 million acres, which includes the Nonh Cedar Mountains, is merely the " starting point" for negotiations with lawmakers. Funher, the Commission itself has held that environmental impact state-ments need not consider alternatives that require "significant changes in governmental policy or legislation," because they are too speculative. Sacramento Municipal Utility Distnct (Rancho Seco Nuclear Generating Station), CL1-93-3,37 NRC 135,145 (1993).
Therefore, any assumed interest based on BLM's reversal ofits prior determina-tion and/or Congress' potential wilderness designation of the land which the Low rail spur will traverse is too conjectural to provide SUWA with standing to intervene here.
B.
Mr. Catlin Will Not Suffer Harm as au individual SUWA's attempt to invoke standing based upon one ofits members, Mr. Catlin, must similarly be rejected because (1) Mr. Catlin fails to allege any particularized or immi-11
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l nent inju y and (2) the interest to which Mr. Catlin claims injury is, like SUWA's above, non-existent or too conjectural to provide a basis for standing.
1.
Failure to Allece Panicularized or Imminent Iniury i
l To establish standing, a petitioner's injury must be particularized and concrete,11, it must affect him "in a personal and individual way." Luian v. Defenders of Wildlife, 504 U.S. 555,561 n.1 (1992). Specifically, a petitioner claiming injury from environmental 1
l damage "must use the area affected by the challenged activity and not an area roughly 'in l
the vicinity' ofit." Id at 565-66 (quoting Luian v. National Wildlife Fed'n,497 U.S. 871, m
887-89 (1990)), Lee also LBP-98-7,47 NRC at 171. Further, an asserted future injury must be " imminent," iA, the petitioner must have current contact or show that it will have imminent future contact with the area where the harm will occur. See Defenders of Wild-i 1
life,505 U.S. at 564; see also Houston Lighting and Power Company (South Texas Proj-ect, Units 1 and 2), LBP-79-10,9 NRC 439,456-57 (1979) (merely " occasional trips" to i
a location near a plant are insufficient to establish standing).i2 Here, Mr. Catlin's claimed injury is neither particularized nor imminent. He states, "I b.a33 used.. the public lands and natural resources on BLM lands.. and have used.
. the exact tract oflands contained in the Nonh Cedar Mountains roadless area as de-picted in Exhibit 2." Catlin Dec. 20 (emphasis added). Even according to SUWA, how-ever, PFS's rail spur involves only a thin sliver of that area, on its easternmost edce. See
" Accord Philadelohia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A.15 NRC 1423,1448 (1982); Washincton Public Power Supph System (WPPSS Nuclear Project No. 2), LBP-79-7. 9 NRC 330,338 (1979).
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SUWA Pet., Exh. 2; see also Section 1, supra. Mr. Catlin does not assert that he has had any contact with that small parcel o,fland, only that he has used the North Cedar Moun-tains area generally. Catlin Dec. 20. Such use of an area only vaguely "in the vicinity" of the challenged action does not establish standing. Luian,504 U.S. at 561 n.1, supra Further, Mr. Catlin asserts only vague, generalized use of the area in the past. He does not assert how frequent or regular his use has been; nor does he express any intent to use the area in the future. Accordingly, any harm that Mr. Catlin's asserted interest might suffer from the challer ged action is not imminent. See Luian and other cases cited above.
Hence, Mr. Catlin lacks standing for this reason as well. Because Mr. Catlin lacks stand-ing, SUWA cannot derive its standing from him.
2.
hir. Catlin's Asserted Interest is Insufficient to Establish Standing Mr. Catlin possesses no legally valid interest in potentially having the land that PFS's rail spur will traverse designated as wilderness where BLM has already determined that the land is ineligible for designation as a wilderness area. Ser Section ll. A.2, s_u.nr_a At best, the prospect of changing the land's status is so remote as to render Mr. Catlin's asserted interest no more than hypothetical. Id The reasoning on this point is the same m
for Mr. Catlin as it is for SUWA. Therefore, because Mr. Catlin lacks standing. SUWA cannot derive its standing from him and hence its petition must be denied.
Mr. Catlin states that other SUWA members have interests and engage in activities similar to his. Cat-lin Dec.118. SUWA may not derive standing from potential harm to the asserted interests of any other members without their express consent. Houston Lichtine and Power Compam (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 NRC 377,396 (1979). Moreover, even if it could, those inter-ests, as they parallel SUWA's and Mr. Catlin's, are too academic and are not legally valid as asserted over the land the Applicant's rail spur will traverse. S_cc Catlin Dec. T 18-19, see also Section 1, ligpra 13
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SUWA Should Not Be Granted Discretionary Standing SUWA alternatively asserts that it should be allowed discretionary intervention.
SUWA Pet. at 12-14. SUWA is incorrect. The Commission's Pebble Springs factors l
weigh against discretionary intervention here. First, four of the six factors are drawn from
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l the test for admitting late-filed petitions set forth in 10 C.F.R. Q 2.714(a)(1), se Pebble l
Splings, CLI-76-27,4 NRC at 616, and, as we show below, these factors weigh against n
l SUWA.Section III, infra. Second, the other two factors, the nature of the petitioner's j
interests and the effect that the outcome of the proceeding may have upon them, are drawn from the factors set forth in 10 C.F.R. 2.714(d) ordinarily used to determine whether a petitioner has standing. Egbble Springs, CLI-76-27,4 NRC at 616;Igrkey Point, ALAB-952,33 NRC at 529. As shown above, these factors weigh heavily against SUWA, in that SUWA's interest, with respect to the area affected by PFS's rail spur, is legally non-existent or is at best conjectural. Se_e Section 11 supra. Therefore, the issue on which SUWA would contribute to this proceeding is insubstantial and the Board should l
. not allow it to intervene. Seg Pebble Sprines, CL1-76-27,4 NRC at 617.
e III. SUWA'S PETITION IS UNJUSTIFIABLY LATE SUWA's petition to intervene must also be denied because it is unjustifiably late.
Petitions for leave to intervene were due September 15,1997. 62 Fed. Reg. 41,099 (1997). Late petitioners must " demonstrate that a balancing of the five factors set forth in 10 C.F.R. 2.714(a)(1)(i)-(v) support accepting the petition." LBP-98-7,47 NRC at L
167. SUWA has not done so here, so its petition must be denied.
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A.
SUWA Lacks Good Cause for Late Intervention The first factor is good cause for lateness. 10 C.F.R. & 2.714(a)(1)(i). SUWA lacks good cause in that it has waited too long to file its petition. PFS's amendment, on which SUWA bases its intervention and contentions, see SUWA Pet. at 9-10, was avail-able to SUWA in the local public document room in Salt Lake City by early September.
Moreover, SUWA's counsel had notice of the amendment by late September: she is also counsel for intervenor OGD and she discussed the amendment in the September 28,1998 conference call with the Board. Ssg Tr. at 977-78,982. Counsel specifically stated that the new transponation route "might be [a] concern of people (who] are not intervenors right now," in that it will cross BLM land, id, at 977-78, and asked about "getting other parties.. involved." Id at 982. SUWA filed its petition more than 50 days after that.
There is no good cause for this delay. SUWA does not state when it learned of the amendment nor does it give any explanation for this delay. S_eg SUWA Pet. at 10. The e
Board determined that the State lacked good cause for filing Utah Contention EE late when it was filed after an unexplained one-month delay. LBP-98-7,47 NRC at 208. The Board should also determine that SUWA lacks good cause for its lateness given its unex-plained delay here, panicularly given the factual simplicity and narrow scope of the infor-mation SUWA relies on for the basis ofits petition. SUWA Pet. at 1-2." Where a peti-
" Finding of good cause for the dela) between the availability of the information and the filing depends on the scope and complexity of the 'new'information." Private Fuel Stora_gg (Independent Spent Fuel Storage Facility), LBP-98-29,48 NRC _, _ slip op. at 12 n.4 (Nov. 30,1998). Here, the relevant in-
' formation was merely the location proposed for the rail spur.
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tioner lacks good cause, it must make a compelling showing on the other factors, which, l
as discussed next, SUWA has not done.
B.
SUWA Fails to Make a Compelling Showing on the Other Factors The second and founh factors, which concern the protection of the petitioner's as-sened interest by other means or parties, are to be accorded less weight than the third and fiRh factors. LBP-98-7,47 NRC at 208. Moreover, where a petitioner, like SUW A, has l
not shown that it has a valid inteiest, ie, standing, any support for accepting the petition based on these factors is further weakened. Egg Texas Utilities Electric Company (Co-manche Peak Steam Electric Station, Unit 2), CL1-93-4,37 NRC 156,165 (1993). In any l
event, SUWA has other means to attempt to protect its interest. It can petition the re-i j
sponsible federal agency, BLM, to have the Nonh Cedar Mountains recommended for l
wilderness designation; it can comment on the NRC's dran environmental impact state-l
. ment; and it can continue to lobby and make proposals to Congress to have the land des-l ignated as wilderness. Therefore, these factors do not favor accepting SUWA's petition.
The third factor is whether the petitioner will make a strong contribution to the re-cord. To satisfy this factor, a petitioner should,"with as much particularity as possible, identify its proposed witnesses, and summarize their proposed testimony." LBP-98-7,47 l
j NRC at 208 (citations omitted). Here, SUWA identifies two potential witnesses to testify, l
SUWA Cont. at 5, but it discusses only briefly their possible testimony regarding the North Cedar Mountains generally and discusses not at all their testimony regarding the small parcel ofland that the Low rail spur will actually traverse. Eee SUWA Pet. at 7,13-e 14; SUWA Cont. at 3-5; Catlin Dec. $ 5-7. Therefore, SUWA has not shown that it will i
16
make a strong contribution on issues relevant to this proceeding. Sic LBP-98-29,4S NRC at _, slip op. at 13. Indeed, as discussed in Section IV.A.1, SUWA ignores com-pletely the ER's evaluation of the potential impacts of the rail spur on its surrounding en-virons. SUWA's failure to show " particularized knowledge" of or concern for PFS's ap-plication and its effects weighs especially heavily against granting SUWA discretionary intervention. Private Fuel Storane. L.L.C. (Independent Spent Fuel Storage Installation),
CLI-98-13,48 NRC 26,35 & n.4 (1998).
The fifth factor concerns the extent to which the petitioner's participation will broaden or delay the proceeding. Here, SUWA's participation will clearly delay the pro-ceeding in that SUWA's petition comes more than one year after petitions were due and only three months before the close of discovery. See South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,13 NRC 881, 888-89 (1981)(impact on discovery and potentially the hearing date a significant factor). Further, because SUWA raises issues not raised by other parties," its participation would broaden the proceeding as well. Id at 891. Hence, this factor also weighs against accepting SUWA's petition.
In sum, all five factors weigh against accepting SUWA's late petition and it must therefore be denied.
" Contentions filed by other interrenors concerning the Low rail spur were rejected by the Board. LBP-98-29 48 NRC at _, slip op. at 38 39. Funhermore those contentions concerned issues difTerent from those raised by SUWA.
17
IV.
CONTENTIONS SUWA submits two contentions regarding PFS's Low rail spur. SUWA Cont. at 2,5. Both, however, fail to satisfy NRC pleading requirements and thus must be denied.
A.
SUWA Contention A l
SUWA assens that PFS fails to consider adequately the impacts of the Low rail
{
spur and the associated fire buffer zone on (1) the wilderness character and (2) the poten-(
I I
tial wilderness designation of the North Cedar Mountains. SUWA Cont. at 2. SUWA claims further that (3)"the Nonh Cedar Mountains qualifies for and should be designated as wilderness under the Wilderness Act of 1964 and therefore should be preserved in its j
l~
current natural state" until Congress has an opportunity to evaluate it for wilderness des-l ignation. Id We address each of these three subcontentions in turn below.
1.
Imoact on Wilderness Character of the North Cedar Mountains i
i SUWA claims that the amendment fails to consider adequately the impacts of the Low rail spur and the associated fire buffer zone on the wilderness character of the Nonh i
Cedar Mountains, in that PFS fails to analyze the impacts that the construction and opera-I tion of the rail line will have on the North Cedar Mountains; fails to consider that the op-i l
eration of the rail line will intrude upon the area's " outstanding opportunities for solitude;"
and fails to adequately address the impact of the rail line "on the area's wildlife, wildlife habitat, plant life, and other ecosystem values." SUWA Cont. at 4-5.
l I
This subcontention must be dismissed for lack of basis and for failure to show that a material dispute exists with the Applicant. First, SUWA provides insuflicient basis to support its assertions that PFS has failed to address any environmental impacts of the Low l
18 l
1 l
l rail spur. SUWA cites only one document, the Catlin Declaration, that even mentions the PFS rail spur. Sg SUWA Cont. at,2-5. The Catlin Declaration, however, discusses the impact of the spur in only broad, conclusory terms. See Catlin Dec.
16-17. Mr. Catlin states, without providing any explanation or reasoned basis, that the rail spur "will irre-versibly impair the wilderness character of the North Cedar Mountains,"id at 16, that it "will significantly intrude into the North Cedar Mountain roadless area," that it "will sig-nificantly intmde upon the area's currently ' outstanding opportunities for solitude,"' and that it will"have adverse impacts on the area's wildlife and plant life,
. which are essen-tial to the ecological health of the area." Id. at 17. Such statements, even if made by an expert, do not provide an adequate basis for a contention:
[T]he Board is not to accept uncritically the assenion that.. an expert opinion supplies the basis for a contention.
[A]n expen opinion that merely states a conclusion (e.g., the application is " deficient," "inade-quate," or " wrong") without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion as it is alleged to provide a basis for the contention.
LBP-98-7,47 NRC at 181 (citations omitted). Therefore, the conclusory Catlin Declara-tion does not providt sufficient basis for this subcontention and it must be dismissed?
This subcontention must also be dismissed fc,r failure to show that a material dis-pute exists with PFS, in that it completely ignores the information in the ER concerning the potential environmental impacts of the Low rail spur. LBP-98-7,47 NRC at 181. The
'* To the extent that SUWA relies on its inventory of the North Cedar Mountains area for basis. Ecc SUWA Contentions at 3, it is insufficient in that it does not show in any way the irnpact that the rail spur might or might not have on the land it will traverse.
19
I 1
l f
l ER addresses the impact of the rail line on the land (and vegetation), including the area of l
land to be temporarily cleared for construction and permanently cleared for the roadbed and buffer zone." It addresses the impacts of the rail line on livestock and their habitat."'
It addresses the impacts on resident wildlife species and their habitat and the measures that might be undenaken to mitigate those impacts." Concerning " opportunities for solitude,"
l the ER directly addresses the rail spur's noise and visual impacts.2o SUWA completely ig-nores all of this information and provides no factual basis to challenge the adequacy of the evaluations set forth in the ER. Therefore the subcontention must be dismissed.
2.
Imoact on Potential Wildemess Designation of the North Cedar Mountains SUWA claims that PFS fails to consider adequately the impacts of the Low rail spur and the associated fire buffer zone on the potential wilderness designation of the North Cedar Mountains, "a tract of roadless [BLM] land." SUWA Cont. at 2. SUWA states that in 1998 it inventoried the North Cedar Mountains and has determined that the
" Construction will temporarily disturb 621 acres and permanently remove 155 acres of the 271,000 acres of rangeland in Skull Valley (and over 1 million acres in Tooele County), a " minor" amount ofland com-pared to the total acreage of such land. Moreover, "lt]here are.. no unique vegetation habitat features in a
areas proposed for vegetation removal." ER at 4.4-1 to 3.
'8 Effects will be minimal due to the small amount ofland used and livestock's ability to cross the railroad tracks. ER at 4.4 2.
"' Construction will temporarily disturb wildlife but measures will be taken to avoid disturbing the habi-tats of sensitive species such as kit fox, burrowing owls, nonhern harriers, and ferruginous hawks and mi-gratory species, such as the peregrine falcon, "should not be adversely affected." The impact of operating the rail line on local animal species "is expected to be minimal." ER at 4.4 3 to 4; see also ER at # 2.3.3.
The maximum noise levels, downvind, five, seven. and ten miles from the railroad would be 31,26, and 19 dBA, respectively. At closer locations, approximately two miles, the noise levels may occasionally reach 45 dBA. ER at 4.4-7 to 8. The rail line will be visually apparent only near developed areas near I-l 80 and from high elevations in the Cedar Mountains and will meet BLM's visual resource management classifi::ation for the area. Ld_ at 4.4-9.
l l
!~
20
l area depicted on the map in its Exhibit 2 is suitable for wilderness designation and protec-tion under the Wilderness Act. E at 2-3. SUWA claims that the impacts of the rail spur would make the area unsuitable for such designation. M at 4.
This subcontention must be dismissed for lack of specificity and for failure to show the existence of material dispute. SUWA's entire discussion of the suitability of the North Cedar Mountains area for designation as wilderness lacks sufficient specificity to show a j
material dispute regarding the small tract ofland on the easternmost edge of this area through which PFS's rail line will pass. E at 2-5. In fact, the rail line avoids the Cedar Mountains proper by remaining in the lower elevations of Skull Valley. See Section I, s_u-u pn. SUWA discusses the character of the North Cedar Mountains generally, in the broad conclusory terms of the Wilderness Act, but says nothing specific about the character of the particular parcel ofland through which PFS's rail spur will pass in the lower elevations of Skull Valley. E at 3; Catlin Dec.
15-17. "For a proffered legal or factual contention to be admissible, it must be pled with specificity," LBP-98-7,47 NRC at 178, which SUWA simply has not done.
Further, SUWA's assertion regarding the roadless and wilderness character of the land the rail spur will traverse is contrary to the administrative determination made by the responsible Federal agency. BLM. S_ee Section I, supra.22 Because this Board must re-e spect BLM's determination, see Hydro Resources CLI-98-16,48 NRC at _, slip op. at 2' As set fonh there. BLM considered the Nonh Cedar MounMins arca for potential designation as wil-derness and rejected it after an " intensive inventor >J "because oflack of wilderness charactenstics? 45 Fed. Reg. at 75.603-04.
l t
21
2, SUWA's assenion can not give rise to a material dispute of fact in this licensing pro-ceeding. Moreover, the possibility that, despite the foregoing, the Nonh Cedar Mountains might someday be designated as wilderness is too speculative to give rise to a material dispute. For the area to be designated as wilderness, BLM would have to reverse its de-termination, the Secretary of the Interior and then the President would have to approve its recommendation to Congress, and/or Congress would have to pass a statute. Sections I &
II.A.2 supra SUWA has been trying to have this done for 10 years for the adjacent Cedar
~ Mountains area to the south without success. Id Speculation does not provide adequate m
basis for a contention. LBP-98-7,47 NRC at 180; as Rancho Seco, CLI-93-3,37 NRC at 145 (rejecting as speculative a NEPA contention premised upon "significant changes in governmental policy or legislation."). Therefore, this subcontention must be dismissed.
3.
Preservation of the North Cedar Mountains in its Current Natural Sta_is SUWA assens that "the North Cedar Mountains qualifies for and should be desig-nated as wilderness under the Wilderness Act of 1964 and therefore should be preserved in its current natural state" until Congress has an opportunity to evaluate the land for wil-derness designation. SUWA Cont. at 2. It cites as basis its " Citizens' Wilderness Rein-ventory" and its intent to get Congress to designate the land as wilderness. hl at 3.
This subcontention must be dismissed as outside thejurisdiction of the Commis-sion. Sse Hydro Resources, CL1-98-16,48 NRC at _, slip op. at 2 (the NRC should not resolve questions left to other regulatory bodies). The duty to review BLM lands, rec-ommend them for designation as wilderness, and preserve them until Congress has deter-mined whether or not to make such designation has been committed by statute to the Sec-22
retary of the Interior (acting through BLM) -- not the NRC. 43 U.S.C.
1702(e) and (g); 1782. Therefore, the NRC lacksjurisdiction to determine the suitability of the Nonh Cedar Mountains for wilderness designation and this subcontention must be dismissed.22 B.
SUWA Contention B SUWA claims that PFS " fails to develop and analyze a meaningful range of alter-natives to the Low Corridor Rail Spur.. that will preserve the wilderness character and the potential wilderness designation of.. the Nonh Cedar Mountains.
" SUWA Cont. at 5. SUWA puts fonh as basis its belief that the area qualifies as wilderness. Ld.
This contention must be dismissed for failure to show a material dispute of fact.
First, it ignores relevant material in the application. LBP-98-7,47 NRC at 181. PFS has, in fact, proposed three alternatives for transponation to the ISFSI from the Union Pacific railline: (1) the Low rail spur, (2) the use of heavy haul trucks on Skull Valley Road, ER, Rev.1 at j 4.3, and (3) a rail spur along Skull Valley Road, ER, Rev 0 at N 4.4. The ER f
has evaluated the environmental impacts of all three alternatives and has addressed im-pacts on land,2' impacts on plant and animal species and their habitats,2' noise and visual 2 Further, under the logic of SUWA's contention ifit or any other organization or individual believes I
that a tract ofland qualifies and should be designated as wilderness, than nothing can be done to that land until Congress acts. Such is clearly not the intent of the FLPMA or the Wilderness Act and is directly contrary to provisions of those statutes where, as here, the federal agency charged with making recom-mendations to Congress for the designation of wilderness areas has determined that the area in question does not qualify for such designation. Once BLM drops an area from further wilderness consideration. it is no longer subject to the land use restrictions imposed by FLPMA during BLM's review. 45 Fed. Reg. at 75.603-04; _see Babbitt.137 F.3d at 1198 & n.2; 43 U.S C. #E 1782(a) and (c)(restrictions apply or.ly to those lands " identified during the inventory [ required by FLPMAl as having wilderness characteristics").
" ER, Rev i at 4.3-1,4 4-1; ER. Rev 0 at 4.4-1-2.
2' ER Rev at 4.3 2 to 4. 4.4-2 to 4; ER. Rev 0 at 4.4-2.
23
l l
impacts (" solitude"),2' and other impacts such as those on air quality and historical and i
cultural features.2' SUWA has completely ignored these alternatives and the analysis PFS has performed in support of them and proposes no alternatives ofits own ' Thus, this 2
i subcontention must be dismissed.
Second, this contention fails to show that a material dispute exists, in that its un-i I
derlying premise is merely conjectural. As discussed, BLM has determined that the entire Nonh Cedar Mountains region is not suitable for such designation. Section 1, supra. Re-versing that determination and having the land designated as wilderness would require a long and uncertain process, culminating in an act of Congress. Ld This possibility is sim-m ply too remote to serve as a premise for a contention concerning NEPA alternatives.
i l
In Rancho Seco, the Commission rejected an assertion that NEPA required the li-censee's decommissioning emironmental repon to consider the possibility of resumed op-eration of the plant under the "no action" alternative, because some version of"no action" would " preserve the potential for future operation." Rancho Seco, CLI-93-3,37 NRC at 144-45. The Commission found such consideration unnecessary, in that operation could resume only after a string of uncertain events, including NRC decisions and a potential state referendum; it stated that "there is no need to consider alternatives of speculative feasibility or alternatives which could only be implemented after significant changes in i
25 ER, Rev 1 at 4.3-8,4.4-7 to 9; ER, Rev 0 at 4.4-8 to 5.
l 2' ER, Rev 1 Jg 4.3.3,4.3.8. 4.4.3,4.4.8; ER Rev 0 gg 4.4.3,4.4.8.
i 2' Sgg pyke Power Company (Catauba Nuclear Station, Units I and 2), ALAB-355,4 NRC 397. 412 (1976) (petitioner must suggest at least a " colorable alternative" to those considert.d).
4 24
.. - - ~. _ - = =.
... -. ~ ~. -
i governmental policy or legislation or which require similar alterations of existing restric-tions." hl at 145-46 (quoting NRDC v. Callaway,524 F.2d 79,93 (2d Cir.1975)).
Therefore, PFS should not be required to consider the possible designaden of the i
land the Low rail spur would traverse as wilderness, as it could only be so designated after a significant policy change, effected through an uncertain process, followed by legislation.
i Thus, this contention must be dismissed, I
Respectfully submitted,
\\ Ottof k
at Jay E. Silberg i
Ernest L. Blake, Jr.
Paul A. Gaukler SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
j Washington, DC 20037 (202) 663-8000 Dated: December 1,1998 Counsel for Private Fuel Storage L.L.C.
i
)
i 25 I
DOCKETED USNRu UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION
% DEC -3 P4 :15 Before the Atomic Safety and Licensing Board 6 [ ',fd "
frl c
ADJU W:
, }.gF In the Matter of
)
)
i PRIVATE FUEL STORAGE L.L.C.
)
Docket No. 72-22
)
(Private Fuel Storage Facility)
)
ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Answer to Request for Hearing, Petition to i
Intervene, and Contentions of Southern Utah Wilderness Alliance" were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. mail, first class, i
postage prepaid, this 1st day of December 1998.
G. Paul Bollwerk III, Esq., Chairman Ad-Dr. Jerry R. Kline ministrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GP.Egarg.gqv e-mail: JRK2@nrc. gov Dr. Peter S. Lam
- Adjudicatory File Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: PSL@nrc gov
l Catherine L. Marco, Esq.
- Charles J. Haughney Sherwin E. Turk, Esq.
Acting Director, Spent Fuel Project 05ce Office of the General Counsel Office of Nuclear Material Safety and Mail Stop O-15 B18 Safeguards U.S. Nuclear Regulatory Commission -
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 e-mail: pfscase@nrc. gov i
Denise Chancellor, Esq.
Joro Walker, Esq.
Assistant Attorney General Land and Water Fund of the Rockies Utah Attorney General's Office 165 South Main, Suite 1 160 East 300 South,5* Floor Salt Lake City, UT 84111 P.O. Box 140873 e-mail: joro61@inconnect.com Salt Lake City, Utah 84114-0873 e-mail: dchancel@ state.UT.US John Paul Kennedy, Sr., Esq.
Richard E. Condit, Esq.
Confederated Tribes of the Goshute Land and Water Fund of the Rockies Reservation and David Pete 2260 Baseline Road, Suite 200 1385 Yale Avenue boulder, CO 80302 Salt Lake City, Utah 84105 e-mail: rcondit@tlawfund.org e-mail: john 1@kennedys.org Clayton J. Parr, Esq.
Danny Quintana, Esq.
Castle Rock, et al.
Skull Valley Band of Goshute Indians Parr, Waddoups, Brown, Gee & Loveless Danny Quintana & Associates, P.C.
185 S. State Street, Suite 1300 50 West Broadway, Founh Floor P.O. Box 11019 Salt Lake City, Utah 84101 Salt Lake City, Utah 84147-0019 e-mail: quintana @xmission.com e-mail: karenj@pwlaw.com Diane Curran, Esq.
Office of the Secretary Harmon, Curran, Spielberg &
U.S. Nuclear Regulatory Commission Eisenberg, L.L.P.
Washington, D.C. 20555-0001 2001 S Street, N.W.
Attention: Rulemakings and Adjudications Washington, D.C. 20009 Staff e-mail:Deurran.HCSE@zzapp.org e-mail: HEARINGDOCKET@NRC. GOV (Original and two copies)
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I UNIT ts0. IIT-02d.c37 usa ACREAGE: D' 3! ClitT EME: fl0RTH CEDAR HOUNTAlft5 Imli ALREAGE: 16,089 D. SUPPL [H_*pTR VAlt}l5: Rock Hindows, sawtooth ridges and srna))$: caves carvea in cTil7s eWterraces are cc4 inion throughout 1. AREA DESCRIPilG:1: Unit 087 is located in ine north-central portion et 1hese are all rereiants, display's cast bthe northern section of the unit. Tooele County, Utah, approxlestely 58 niles east of '.*endover aswl oil miles nest of Salt Lake City, via Interstate-80 Located at the northern end of the Bonneville or Provo levels of ancient Lake Borineville, a,y either ' wtare the Cedar Mountain Range, ledt,087 is basically Polygonal in shape. sidered to be typical geological forsations, cornn to the Bonnevfile m. Dirmensions vary, depending as glfrections nicasund, but approxicates for Basin, and characteristic to all I4 units undergoing interisive inventory en the Salt late District. general description are 5.5-and 7.0 sillos long. ) i 2. uttoliifus ritAMCThti 3 fl.atsrn his tin; t,u,.u. ici. .in, ni, e t,e.ni. g %,,,, teday sli v iit en., toe h~ C.A. l.u.s s { ... or. ..u i. w,.s.,,c. ta,.,m a... p ba rWe n t m.. i A. at 44 ne unit con ...nc re !..e e t. do a m a. m. - .m..c< o . y. ; i. .,, me ne.v en, l <spprmelni*tlh I 7/Q aisti ofs. 3and. Mdb l....A 1. oaC f udm.s n o q ps.a s.iuit sit s se iuniays s.as ed, me ;.ien ent.sp ilnj. a.o ...... m. ....l. t,,,r g. y th4' 9tii t. Jg& J 4-Q p ~ g 4 !!iniw wr o i.
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31~.4.J late t on s a.,.n'd t er a feeling of subiluie naturalness is lacking. a 9 4. DECI5tolt: Cropped fin.i furthcr wilik i nc>s i.n,_oto,..n Twent,y-seven lupact> or activitics were identified; a rumulative network ,,,g,y of over II allcs of " ways" west secorded within the una t's boundarses. j FAq0Mttf0RLKCf'fo't: M. a..n.t n..t u. i nes. to %, a.a, na., g ',' 7, t Lee's Canyon "way" follows a drainage ansi s.uts a sanan te path three@ ti.is ern s t into tne intensiva the southeast end of the.1 orth Cedar >, faipacting 14: i ts course tie +a inuntor'y :.ese ut b,e wi hMrn.m c..vn y '.003 the lack ot %tstandin " potent.1,,,,e upporusni ty for sol e tudt amt/or a acre parcv1 mals.Ing up that esed of the uni t. Other lesprints alcng this v a primitive and unconfined recreational emperience should drop it from access route includes gesarries, Ifvestock trails, and ciotorcycle paths. further wilderness Inventory consideratfoe. Man's taiprints are sub. C. IRITSTANDING OPPORTUNITIES: stantially noticeable within the unf t. Natural screenin9 contribertes If ttle to hide or enclose man and his contrasting influences. (1) 50LfillDE: Tne upper elevations and inner portion of the opportunities exist but all are encur.bered by run's developa.ents.Recrea tion isnit provide scattered opportunteles for solf tude. Occasional vegetative covering, mountainous topography, and lack of penetrating roads, are evident. The lower, outside portfons of the unit lack outstanding opportunttles for solitude due to the sparse vegetative cover, relative apen terrain and the cwaslative effect of marty impacts in the untt. Feelings of isolation are seldai aplicented by winding canyons. Vegetation canopies and screening are lacking, and therefore do not aid in an outstanding feeling of solitude. (2) PRIMITIVE AIO UNCDNFillEO RECREATION: Opportunities for a primitive and unconfined type of recreation which extst in the.1 orth Cedars are hunting, horseback riding, hfking, wildt* fe observation and signtseeing. Momever, these opportasalties are noc considered
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IJildlife populations and rtsbers are few. Terrein for hiking and horseback riding is not tanique in nature and does not provide outstanding opportunities for these recreation t;ypen Sightseeing is encassbered by many outside activities and interior frpacts of man. i as.smM l + ],, ~ q
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Gemessfde W[dsessee Emvf gemmemes::. :e:pece Gemesesme M m e ::. Prepared by Utah State Office Bureau of Land Management U.S. Department of the Interior 1990 i i b ioi k h u r, ( ~ eto utas Stai. Di,mo, i
APPEleDtX 11 TAaLE 11.2 SURAMARY OF stATIOttALE FCet THE PftOPOSED ACTIOEWEST CENTRAL DEGloss a PRJf0SEDACTEPd h44P VWLDOWESS ETLOY AfW.A WSA WSA WLDEffESS NOP4WLDEfhESS MTIOMLE FOR AREA PROPOSED AS SulTABLE misOMLE fDH AHEA PROPOSED AS PCT SulAOLE fDR WLDEfet3S DESGm1EPG FOR WLDEfNESS DESGMTDN M.MEJ4 AQEAGE (ecree) (ecres)
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pero t NORTH 3TANSBURf 020-089 10.440 t o.480 0 Abed es peecwe of the eres as nahnal and obed 54 pescere has evtstandmg setnude and lOptTAp6 preneswa recreanee. Dererne scenas vaaves are presere. Cordecie enth other useo are not presore, oncept for pas reenerei prospecnng en ebeus see save en ins eam ease of the WSA. W6ksemmes n. : waved tie com smaere weh ediscere Nanenal Forees manage-more to preserve the naswal onwrenmenias values en the west of the mewsaan range. The area le nervres two the oppenway ser 2 CEDARndOLp4TAse 202-004 50.600 0 50.600 Nois prenance and uncordaned recreaeton se nos avsmanseg. Wata en tacts'4. **guenen tacks varimy. and scenec waives are cenvren. S.,ps mweet wakes are tactung in eness as she eroa. The nenh end as the WSA has fugh nunmed As as the pnyosed area en netwW and has ow. 3 DEEPCREmbsOndTAMB 020 000 88.810 S F.384 11.529 esansmg estuwde and pnmarre and encorder> poseretal (good, lead. rinc. sneecary, marytidos ed recreauen tegn moweswi peaks are disun-um. emer, and beryHeum) which owsoeghe meidernsee vehen. Smas aroaa asong me pueshing econec teaawes. Macy warnage poanre eccw ter vous eureerd to the ceneresung eeusheses edge af the WSA tmA ewmanang desert. Special teatwee enclude utan cut-oppers. news ser premeswo recreataen, each ovest trow, ginne meneny, grapes <n. and esen.de, and pes.ees is. we.m ersween. tbrisalecene pene. Deversey el terrein and weg-eranen esses. Some cennics weh paientini e eneneral decovery may esist. t>ws the corner et the range appears to have toes posereial tren ecouruf om edgee of the pref==d area. hhneres posential meine recogrused, to of tees-et trnpedance then mineral welues In Ehe eres nel prepeeed for wedertwee. 060 127 62.500 33.040 10.000 As the area es neewat Aboue 74 pencore of The tooaruus (or benchaenosp tack ese s.a. ine rope.ee wee ei an.ng eggen-and e..e, ing o,pe.tv e.ee ,,i,ri e 4 FWHSPfwet e. lies for eWewde erus prunathe recreassen. Gee-recreason The leottues have apag weseeaf condenons common to the Wees Eement engnen A - d., logic angresseeng and study are above average. weh 25.000 acres at tWockfausing velbie" en
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I CEDAR MOUNTAINS WSA ( U T-0 2 0-0 9 4) INTRODUCTION tion that all mineral and other resources potentially within the WSA would be developed sometime in the General Description of the Aree future without consideration of technical or economic feasibility. In response to public comments relative to The Cedar Mountains WSA contains 50,500 contigu-the feasibility of developments, the disturbance esti-ous acres of public land located in east-central Tooele mates have been revised to focus on activities pro-County, approximately 65 miles west of Salt Lake jected to be feasible within the foreseeable future 1 City and 40 miles west of the community of Tooele, (see Appendix 6 in Volume I). This resulted in a reduc-Utah. The unit consists of public land in the central tion of surface disturbance estimates from the 316 portion of the Cedar Mountains, between Hastings acrea reported in the Draft EIS to no surface disturb-pass on the north and Rydalch Pass on the south. ance for the Final EIS. The Cedar Mountains WSA consists of a long, single The alternatives analyzed in detail have not changed, ridgeline, typically Basin and Range in geologic struc-and the No Action /No Wilderness Alternative contin-ture. At the elevation of 5,000 feet, the mountains ues to be the BLM Proposed Action. A summary of ti;e gradually become more pronounced as outwash fades rationale for the BLM Proposed Action has been added into a smooth, almost inconspicuous blending of can-as Appendix 11 in Volume 1. yons, washes, and gullies which narrow without prom-inent twisting. The mountain's crest varies from the Specific issues identifled Through Scopin(p 7,712 foot Cedar Peak to numerous 6,000-foot eleva-end Public Comment tions scattered along a 20-mile-long ridgeline. + lssues Considered But Not Analyzed in Detail Vegetation along the lower slopes of the Cedar Moun-trins consists of a mixture of shadscale/cheatgrass/ In addition to the issues discussed and eliminated halogeton ground cover. Sagebrush, rabbitbrush, and from further consideration in the introduction to Vol-wheatgrasses combine with individual juniper trees ume 11 (i.e., impacts on air quality, geology and topog-at approximately 5,000 feet to add vegetation tex. raphy, soils, water rights, and land use plans and ture to the landscape. policies) the following issues or impacts specific to the Cedar Mountains WSA were considered but are At higher elevations (above 5,800 feet), the main not analyzed in detail in the Final EIS for the reasons ridge and south facing slopes are often bare and un-described below. shaded, with occasional stands of juniper trees.
- 1. Veaetation includino Soecial Status Soecies: Esti-Estimated annual precipitation ranges from 8 inches mates of surface disturbance without wilderness des-along the lower contours of the unit to 16 inches ignation have been revised downward from the 316 along the 7,712 foot crest of the mountain. Tempora-acres reported in the Draft EIS to little or no surface tures range from a low of 30 degrees Fahrenheit (F) disturbance in the Final EIS. Given this new scenario, in the winter to over 100 degrees F in the summer.
direct disturbance of vegetation would not occur with any of the alternatives. There are no threatened. Changes for the Final EIS endangered, or other special status plant species known to occur within the WSA. In any event, BLM in addition to the changes noted in the introduction to would conduct site-specific clearances of potentially Vtlume 11, the following changes specific to the WSA disturbed areas and consult with FWS concoming im-htve been made since publication of the Draft EIS. pacts on threatened or endangered plant species. If I
- 1. On Map 2, the westem boundary of the WSA was (8^
)' redrawn to exclude a 40-acre parcel that was inad-P0C P l vertently shown inside the WSA in the Draft EIS. l wsg$ NO.
- 2. The anticipated surface disturbance presented in the Draft EIS (316 acres) was based on the assurnp-(SEE VOL)I 1
W CEDAR MOUNTAINS WSA i Five stockman seasonally graze cattle and sheep on ENVIRONMENTAL CONSEQUENCES OF ALTERNA. ) 3.293 AUMs scattered across the three grazing allot. TIVES ments found in the WSA. At the current fee of $1.54 per AUM these five ranchers pay $5,071 per year in No Action /No Wilderness Alternative (Pro-Federal revenue to graze their stock within the WSA posed Action) boundaries. Marketing of livestock which use the WSA contr butes to local income. About $65,860 of live- . Impacts on Wilderness Values stock sales and $16,465 in ranchers' return on investment and labor is attributed to the AUMs in the if not designated wilderness, the wilderness values in WSA. the future would not receive protection afforded by application of the Wilderness Management Policy Woodland products are not presently being taken from (BLM Manual 8560). However, in the foreseeable the unit; therefore, no revenue is generated from this future, no developments are anticipated that would resource. affect wilderness values. Recreation has not proven to be a significant income The only use that would conflict with wilderness val. producer. Deer hunting, ORV use, and horseback rid-ues in the foreseeable future is ORV activity. Much of ing account for 98 percent of the low use in the WSA. the WSA can be accessed by vehicles on the 18 miles Revenue generated by the sale of hunting licenses to of ways and 11 access corridors. New trails formed people specifically hunting this WSA is considered by ORV use, including possible ORV events, would insignificant. The actual amount of income generated reduce naturalness wherever they are developed locally from recreational use in the WSA is unknown, throughout the WSA. Sights and sounds of vehidle However, an approximate range of expenditurae can activity would result in the reduction of opportunities be deduced (Dalton,1982). This study indicates that for solitude and primitive recreation in areas through. the Statewide average local expenditures per recrea-out the WSA during the period of use. These opportuni-tional visitor day for all types of recreation in Utah ties are not considered outstanding except for out. are approximately $4.10. The recreational use for standing solitude on about 10 percent (5,280 acres) Cedar Mountains is estimated at about 384 visitor of the area. The degree to which increased vehicle days per year, resulting in a total estimated annual activity would affect special features, including wild local expenditure of $1,575 related to the WSA. horse, bald eagle. and other sensitive animal species use of the area is unknown. It is, however, unlikely Table 9 shows current sales and revenues for the that vehicular use would ever increase to a level that WSA. would significantly reduce wildlife populations. Overflights by military aircraft would also continue to be an occasional annoyance that would detract An~m Lace Annum ree w from the opportunities for solitude and primitive S*" s recreation in the WSA. on no ca. La o o Disturbance that would occur over the long term and, "a'"o C *"' ^""*m.m s me o therefore, the long term loss of wilderness values $""[C, 8 * *' that would occur is not accurately known. Loss would r,. uni.am u s_ 1 sza _A occur as intrusions increase.
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Conefusion: Wilderness values would not be protected s.wem: sw re oma: Am.asm o a vmwn. L, by wilderness designation. In the foreseeable future, . tam uw me, ,e men., p.nw They e. nm we in m. naturalness and opportunities.for solitude and primi-r i m nem me.m. mm w n. o.nnm.s e, e .ie.new t!ve recreation would be reduced in scattered areas as ORV use increases. Special features would not be significan'tly affected. 17}}