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Transcript of 981211 Public Meeting in Rockville,Md Re Briefing on Private Fuel Storage Prehearing Conference. Pp 991-1167.Supporting Documentation Encl
	ML20206N504
Person / Time
Site:	07200022
Issue date:	12/11/1998
From:	; Atomic Safety and Licensing Board Panel
To:	;
References
	CON-#498-19821 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9812210016
	Download: ML20206N504 (150)
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~~%xiDATE.f :uFriday, L yg g:y 9 December 11s1998 -~~

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1 --- UNITED STATES OF AMERICA
() 2 3 ------------ - - - -x NUCLEAR REGULATORY COMMISSION 4 In the Matter of: : )
1 5 PRIVATE FUEL STORAGE, L.L.C. : Docket No. 72-22-ISFSI {
l 6 (Independent Spent Fuel : ASLBP No. 97-732-02-ISFSI 7- Storage Installation) :
l 8 ---- - - -
- - - - - - - -x i I
9 U.S. Nuclear Regulatory Commission !
10 Two White Flint 11 . Room 3-B-51 l
l 12- Rockville, Maryland j 13 Friday, December 11, 1998-14 The above-entitled matter came on for prehearing
~
l) 15 conference, pursuant to notice, at 1:11 p.m.
16 BEFORE:
[
l 17 THE HONORABLE G. PAUL BOLLWERK, III !
18 Administrative Judge, 19 Atomic Sa aty & Licensing Board Panel 20 l
21 DR. JERRY R. KLINE, '
22 Atomic Safety & Licensing Board Panel 23 24 DR. PETER S. LAM, 25 Atomic Safety & Licensing Board Panel l
f
/\ ANN RILEY & ASSOCIATES, LTD.
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i 992 l l l' APPEARANCES:
I 2 -PRESENT FOR THE SOUTHERN UTAH WILDERNESS ALLIANCE:
3 JORO WALKER, Esquire ;
4 Land and Water Fund of the Rockies j 5 165 South Main, Suite 1 l 6 Salt Lake City, Utah 84111
.7 (via videoconference) l 8 PRESENT FOR CASTLE ROCK, ET. AL:
p 9 BRYAN ALLEN, Esquire l-10' Parr, Waddoups, Brown, Gee & Loveless 11 185 South State Street, Suite 1300 I
12 Salt Lake City, Utah 84111 13 (via videoconference) 14 JOHN DONNELL I-( '15 Private Fuel Storage Project Manager 16 (Rockville, Maryland audience) 17 PRESENT FOR THE STATE OF UTAH, DEPARTMENT OF ENVIRONMENTAL l
18 QUALITY:
19 CONNIE NAKAHARA, Esquire 20 Utah Dept. of Environmental Quality 21 168 No. 1950 West 22 P.O. Box 144810 l
23 Salt Lake City, Utah, 84114-4810 24 (via videoconference) l 25 l i t
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993 1- APPEARANCES: [ Continued]
[^}
U 2 PRESENT FOR THE STATE OF UTAH, ATTORNEY GENERAL'S OFFICE:
3 DENISE CHANCELLOR, Esquire 4 Assistant Attorney General i 5 Utah Attorney General's Office l
6 160 East 300 South, Fifth Floor 1
7 P.O. Box 140873 j 8 Salt Lake City, Utah 84114 9 PRESENT FOR THE STATE OF UTAH:
10 DIANE CURRAN, Esquire 11 Harmon, Curran, Spielberg & Eisenberg 12 2001 S Street, N.W., Suite 430 1
13 Washington, D.C. 20009 !
14 PRESENT FOR THE PRIVATE FUEL STORAGE, L.L C.- q
'~lg y) 15 JAY E. SILBERG, Esquire
{
16 PAUL GAUKLEAR, Esquire l 17 SEAN BARNETT, Esquire 18 Shaw, Pittman, Potts and Trowbridge 19 2300 N Street, N.W.
20 Washington, D.C. 20037 21 PRESENT FOR THE SKULL VALLEY BAND OF GOSHUTE INDIANS:
22 DANNY QUINTANA, Esquire 23 Danny Quintana & Associates, P.C.
24 50 West Broadway, Fourth Floor 25 Salt Lake City, Utah 84101 i
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l 994' 1- PARTICIPANTS: [ Continued]
'( 2 PRESENT FOR THE U.S. NUCLEAR REGULATORY COMMISSION:
3 -SHERWIN E. TURK, Esquire s4 CATHERINE MARCO, Esquire 5' Office of the General Counsel L 6 Mail Stop 15 B18 1
7 U.S. Nuclear Regulatory Commission l l
8, Washington, D.C. 20555 9 MARK DELLIGATTI i 10 Project Manager for PFS Application 11 U.S. Nuclear Regulatory Commission 12 Washington, D.C. l l
13 14
() 15 16 17 18 19 l 1
1 20 21 22
' 2 3'
.24 '
25 ANN RILEY & ASSOCIATES, LTD.
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... . _ . _ . _~ ._. _.m _ _ _ . _ . - _ _ _ . , ..-__________.-._.m-995 1 PROCEEDINGS 2
t
[11:05 a.m.)
3 JUDGE BOLLWERK: Good morning. Today we are here 4 to conduct another prehearing conference in the Private Fuel 5 Storage, L.L.C. proceeding. For the record I would note 6 that as.we did back in May of this year, we are conducting 7 this prehearing by videoconference from the Licensing Board 8 Panel' Hearing Room at NRC Headquarters in Rockville, 9 Maryland and from Room 212 of Milton Bennion --
-10 B-e-n-n-i-o-n -- Hall, on the campus of the University of 11 Utah in Salt Lake City, Utah.
12 This particular proceeding was convened at the 13 . request of various petitioners seeking a hearing to 14 challenge the June 20th, 1997 application of Private Fuel
) 15 Storage, L.L.C. for a license under 10 CFR, Part 72, to 1
16 possess and store spent nuclear reactor fuel in an 17 independent spent fuel storage installation located on the 18 Skull Valley Goshute Indian Reservation in Skull Valley, 19 Utah.
l 20 We scheduled this prehearing conference for two 21 reasons. First, we wish to discuss with the parties the 22' status of informal discovery and future scheduling for the 23 proceeding. In this regard, just prior to Thanksgiving in 1
24 connection with a joint informal discovery status report, we 25 received from the Staff a letter indicating that the ANN RILEY & ASSOCIATES, LTD.
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996 1- schedule for its license review efforts had changed, which i
L 2 could impact the' schedule for litigation of admitted 3 contentions.
4 This was followed_by a December 1st, 1998, motion 5 from Intervenor State o. Utah requesting an extension of the 6 time for informal discovery beyond the existing December 7 31st, 1998 cutoff date.
8 Most recently, by E-mail yesterday evening, we 9 received submissions from both Private Fuel Storage and the 10 Staff that reflect their proposals for changes to the l 1 17 schedule for litigation of the contentions in Groups I and l
12 II to accommodate the revisions in the Staff's application )
13 review schedule. All this we anticipate discussing in some ):
14 detail this morning. l l
15 In addition, we have before us the November 18th, 1
16 1998 late filed request for a hearing and petition for leave ;
l 17 to intervene of the Southern Utah Wilderness Alliance, which 18 was accompanied by contentions. The focus of the hearing 19 petition and the contentions is an August, 1998 amendment to 20 the Private Fuel Storage license application that outlined a 21 revised proposal to construct a rail spur that would be used 22 to transport spent fuel shipping casks to the Private Fuel 23_ Storage facility.
l 24 We received responses to these filings from 25 Applicant Private Fuel Storage, Intervenor State of Utah, l
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l' 997 1 and the Staff and a reply filing from the Alliance and we
,)
, L(/~\ 2 will be hearing oral presentations from these participants 3 regarding the admission of the Alliance as a party.
l 4 Before we begin examining these matters with the
'S participants, I would like again to introduce the Board 6 members.
7 To my left is Dr. Jerry Kline. Dr. Kline, an l
l.
~~l. 8 environmental scientist, is a full-time member of the Atomic~~
! 9 Safety and Licensing Board Panel.
l 10 To my-right-is Dr. Peter Lam. Dr. Lam, who is a
! 11' nuclear scientist, also is a full-time member of the panel.
12 My name is Paul Bollwerk. I am an attorney and I 13 am Chairman of the Licensing Board.
L 14 At this point I would like to have the j 1
("')
\_/ 15 representatives or counsel for the parties identify i
E 16 themselves for the record. As before, why don't we start l l'7 with the representatives for the various Intervenors and l 18 Petitioner SUWA, and then move to counsel for the Applicant, ,
i L
19 Private Fuel Storage, and finally to the NRC Staff counsel.
20 Let's start with those of you that are out in Salt Lake 21 City, if we could.
22 MS. WALKER: Good morning. This is Joro Walker, 23 counsel for Southern Utah Wilderness Alliance and OGD.
l 24 JUDGE BOLLWERK: Gocd morning, Ms. Walker. !
f 25 MR. ALLEN: This is Bryan Allen on behalf of i
i ANN RILEY & ASSOCIATES, LTD.
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l 998 l 1 Castle Rock and Skull Valley Land Companies.
()
r~s 2 MS. NAKAHARA: This is Connie Nakahara, on behalf l 3 of the State.
4 JUDGE BOLLWERK: Anyone else there in Utah i 5 representing any of the parties? l i
6 [No response.]
7 JUDGE BOLLWERK: All right. Mr. Quintana is not l 8 there. I don't see him anyway, and we -- okay. Then let's l
9 go around the room here, if we could, from the State of l l
10 Utah.
11 MS. CHANCELLOR: Denise Chancellor, State of Utah. q i
( 12 MS. CURRAN: Diane Curran for the State of Utah. !
13 MR. SILBERG: Jay Silberg for Applicant Private 14 Fuel Storage.
(ms/ 15 MR. GAUKLEAR: Paul Gauklear for Private Fuel 16 Storage. ,
17 MA. BARNETT: Sean Barnett for Private Fuel 18 Storage.
19 MS. MARCO: Catherine Marco, NRC Staff.
20 MR. TURK: Sherwin Turk, NRC Staff -- and with me 21 at counsel table is Mark Delligatti, the Project Manager for 22 t].e PFS application.
23 MR. SILBERG: Also with us in the audience is John 24 Donnell of Private Fuel Storage, Project Manager.
l 25 JUDGE BOLLWERK: In connection with party l
l
("%) ANN RILEY & ASSOCIATES, LTD.
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999 1 appearances, I would note that in the parties' November 77% .
.! j 2 24th, 1998 joint status report it was requested that -- I am 3 sorry,'it was represented that counsel for the Confederated l
4 Tribes of the Goshute Reservation would be unable to attend 5 today's session, but the Confederated Tribes is waiving its 6 right to be present.
7 With regard to the items for discussion today, 8 unless the participants have some other suggested order of 9 presentation we would like first to hear about the status of 10 informal discovery, then move to the subject of scheduling 11 revisions relative to the Staff's revised review schedule 12' and the State's pending discovery extension . notion in this 13 regard at some point I would appreciate an update from the 14 Applicant on its proposed construction and operation dates
() 15 relative to the PFS facility.
16 At that point, once we finish discussing 17 scheduling, we are likely going to take a short break before 18 moving to oral presentations on the Alliance's hearing 19 request and contentions.
20 I would note that we have placed presentations on 21 the discovery status and scheduling matters first before 22 those party representatives who do not intend to make any 23 presentations regarding the Alliance's pleadings an t
24 opportunity to attend to other matters. In so stating, I
l 25 however, we wish to make it clear that if at the end of the
(
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1000 1= presentations regarding the Alliance's filings, the Board or j
}f 2 any one of the participants raises additional scheduling or 3 other matters, the absence of a party representative may 4 well not provide cause for deferring further discussion on 5 the matter.
'6 Let me also note that we are doing a i 7 videoconference. We may be working with the cameras at some 8 time, back and forth. Hopefully this is going to work 9' smoothly but I am not trying to use you all as guinea pigs 10 but we are still in the early stages of trying to use this 11 type of technology to conduct these hearings.
12 I would also like to note the lighting in Salt 13 Lake City is pretty good. Our lighting here is. pretty bad.
14 I hope ycu can see us all right there. This is supposed to
() 15 be upgraded soon, but unfortunately we are about a week 16 short of that so we are sitting in the shadows but maybe 17 next time you see us, we will not be.
18 Having said all that, are there any comments on 19 the suggested order of presentation?
20 [:No response.]
21 JUDGE BOLLWERK: All right. If not, then let's 22 begin with a report on the status of informal discovery, and 23 I think the order that we'd issued has asked someone, and 24 has generally been Private Fuel Storage, to step forward and 25 sort of let us know where everything is.
l t
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1001 l 1 MR. GAUKLEAR: Yes-. Paul Gauklear from PFS.
(} 2 Since the November 24th status report, the 3 following. things have happened.
4 The State and-the Applicant have exchanged 5 privileged logs of the documents over which they claim i
6 privilege and we have made copies ofithose logs available to j 7 the other parties as well.
l 8 The Applicant hat responded to the great majority 9' of the State's follow-up discovery requests and'we will 10 complete.that response next week.
11 The State has copied and sent to us about a box of
12 documents that we had requested when we were out in Utah and 13 they're working on copying and producing the rest of'those i 14 documents.
-15 Also,.we have scheduled informal interviews next 16 week, the State and the Applicant have, on about four or i
17 five of the contentions, so that is where things stand in '
18 terms of what's happened since the last status report and i 19 what is planned in the immediate future. ;
20 JUDGE BOLLWERK: Have there actually been any 21 interviews conducted up to this point?
22 MR. GAUKLEAR: We conducted, in the second week of 23 November the Applicant conducted about five interviews of 24 State people in Utah.
L 25 JUDGE BOLLWERK: And I'm sorry, they are -- next r
i:
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l 1002 1
L 1 week they are going to be talking with your folks or you are I 2 going to be talking with theirs?
l %))
l 3 MR. GAUKLEJR: Both.
4 JUDGE BOLLWERK: Both, okay.
5 All right. Anything any of the other parties want l
6 to say at this point about informal discovery?
~~7 MR. TURK: I have one request, Your Honor --~~
l 8 JUDGE BOLLWERK: Yes.
9 MR. TURK: For the Staff. We have not been i
10 conducting interviews as yet, but I would appreciate it if
! 11 Utah and PFS keep us informed as much in advance as possible 12 in case we can break loose and get out to some of these.
l l 13 interviews -- we would appreciate attending.
14 JUDGE BOLLWERK: All right. !
( ) 15 MR. GAUKLEAR: No problem with that.
16 JUDGE BOLLWERK: All right. Not that it makes any 17 difference to the Board necessarily, but are you -- at one 18 point you talked about the question of whethr* f 'ou were 19 going to tape record it or simply take notes.
20 What have you decided to do? Just out of 21 interest --
22 MR. GAUKLEAR: Just decided to take notes. We L
23 decided that the interviews are, quote, of no evidentiary 24 value in terms of being able to use to impeach people in j :25 future hearings.
l' l
6 l
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l 1003 1 The purpose of the interviews is basically to )
() 2 3
identify the bases for the other person's contentions,
. identify eny documents that may not have been produced ;
4 previously, and to get the big picture of where the other i
5 party is coming from with respect to the contention.
l.
6 JUDGE BOLLWERK: All right. Anything you want to )
7 add with respect to that, Ms. Chancellor?
8 MS. CHANCELLORi Connie Nakahara was going to l
9 comment on any other issues dealing'with the status of
]
10 discovery. l l
11 JUDGE BOLLWERK: All right. Ms. Nakahara, is l I
12 there anything you would like to say?
l 13 MS. NAKAHARA: No -- other.than the State will e 14 forwarding an additional request for documents to PFS either j rs !
I
,f ) 15 -today or early next week and we will try and finish looking 16 at the documents that PFS has produced, the additional 17 documents they produced next week, and that's it -- and we 18 have no problem coordinating with NRC Staff on our 19 interviews.
20 JUDGE BOLLWERK: All right. Any of the other 21 parties out in Utah want to say anything about informal 22 discovery? Mr. Allen or Ms. Walker?
23 MR. ALLEN: No.
24- MS. WALKER: No -- thank you.
25 JUDGE BOLLWERK: All right.
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1004 1 MS. CHANCELLOR: I would just like to offer a
, -x
,) 2 l comment. I think that this informal discovery has been very 3 useful in that we have been able to exchange voluminous !
4 amounts of documents and having been able to do it 5 cooperatively.
6 JUDGE BOLLWERK: All right. I am glad to hear I 7 . things are working as I had hoped, at least up to this point 8 anyway.
9 Do you have any better sense from doing this where )
10 you're at in terms of formal discovery?
11 I recognize given the schetJ1e that you have 12 provided it still looks like you are talking about three 13 months. Is that something that is going to be -- I guess ,
14 it's been proposed for three months. It doesn't look like
() 15 anybody -- there's some talk about extending informal 16 discovery but not formal discovery. That still looks like a 17 viable window, I take it?
18 MR. GAUKLEAR: I believe that we have three months 19 in our proposed schedule. I believe that's viable.
20 In terms of what we thought about formal 21 discovery, it's -- we have just done a very gross estimate
=22 of depositions and roughly we estimate maybe one per 23 contention on average, with some contentions having more and 24 some being grouped, et cetera, but right now our best 25 estimate based on what we know of the State's witnesses and
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1005 1 people they have identified and what other parties have
) 2 identified is roughly one per contention -- 25, roughly.
3 JUDGE BOLLWERK: So.you see yourselves then within 4 the limits'that the Board set on -- at least on depositions?
1 5 MR. GAUKLEAR: On average.
6 JUDGE.BOLLWERK: On average.
7 MR. GAUKLEAR: On average. There should be some, 8 I know one contention for sure where we want to request 9 additional, I think we would want to request additional 10 depositions, just because of the breadth of the contention, 11 Contention K.
12 JUDGE BOLLWERK: All right. And what about 13 interrogatories -- I'm sorry, Ms. Nakahara, do you want to
.14- say something on that?
15 MS. NAKAHARA: Just on the formal discovery, that 16 it is difficult for us to determine right now how much -- I 17 guess whether it will work within the constraints of the 18 original order, and the one -- until we get a chance to do 19 the information interviews, we are not sure of how many 20 people we want to do depositions on as well as PFS nor have l
21 we identified our experts, so it is really difficult to 22 identify a number of depositions.
( 23 We hope -- we plan to have a better feel for that 24' after we finish the informal interviews and finish this last l 25 set of review documents.
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1006 1 JUDGE BOLLWERK: All right -- and I got -- I guess
(
}
'v 2 obviously from the motion that you filed that if this 3 informal discovery is extended that you plan on conducting 4 additional interviews besides the ones that are scheduled 5 next week?
6 MS. NAKAHARA: Yes. We originally tried to 7 schedule all of them by the end of December. Due to the 8 number of people involved and the schedules and the holidays 9 it was getting extremely difficult, so informal discovery is 10 extended.
11 We plan to do probably -- I am guessing off the 12 top of my head -- from five to 10 additional interviews in 13 January.
14 JUDGE BOLLWERK: All right.
A 15 MS. CHANCELLOR:
() I would just like to add 16 something to that.
17 JUDGE BOLLWERK: Yes.
18 MS. CHANCELLOR: That in terms of being able to 19 identify how many interrogatories and depositions we are 20 going to do another question mark is introduced by the fact 21 that the NRC Staff is issuing another round of RAIs and we 22 assume that there is going to be a certain volume of 23 additional information that comes in in response to those 24 RAIs and we may have more need to resolve questions about 25 those before we are ready to go ahead and actually get into l
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1 formal discovery.
'I'l 2 JUDGE BOLLWERK: All right -- and that was one of 3 the bases of your motion, obviously, if I recall?
i
~~4. MS. CHANCELLOR: That's right. '~~
5 JUDGE BOLLWERK: All right. Anything at this
! 6 pointithat anyone wants to say on this topic of formal or 7 informal discovery before we turn to the general schedule?
8- MR. TURK: Your Honor --
p _9 JUDGE BOLLWERK: Yec, Mr. Turk.
10 MR. TURK: -- I would like to address Ms. Curran's 11 last remark but I think I should do it as part of our 12 discussion of schedule.
13 JUDGE BOLLWERK: All right. Anything from Utah?
14 And please -- because of the way the camera is set we see I
15 basically one person at a time. If someone wants to talk i s-16 that we are not seeing, just hit your microphone and they'll 17 adjust the camera there, so -- but you are out of our camera 18 range.
19 For instance, Mr. Allen, I can't see you right 20 now. If there is something you want to say, I wouldn't know 21 it so -- all right -- just to make you aware of that 22 technical limitation.
23 If nothing else on the general subject of 24 discovery, let's turn then to the schedule, and as I say, I 25 received last evening I guess E-mails from both Private Fuel l
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l 1008-l' Storage and the Staff and I guess the Staff's document sort 2 of incorporated Private Fuel Storage's changes or 3 suggestions, I t'ake it?
~~4. MR. TURK: That's correct.~~
5 JUDGE BOLLWERK: That was the intention.
6 Is there anyone who has not seen that document 7' here or in Utah?.
8 (No response.]
9 JUDGE BOLLWERK: All right. Hearing nothing and no 10 objections, I guess -- why don't we go ahead and if there is I
11 no objection, why don't we work off the Staff's version, 12 given that has everything on it. i
-13. Do you have enough copies so we can bind them into 14 the record? 1 4
s) 15 THE REPORTER: Three, yes.
16 JUDGE BOLLWERK: The original three. If you 17 don't, I have some extra ones. Okay. Normally I am not big 18 on binding things into the record, but I think given -- I 19 won't say the complexity but certainly the number of things 20 we are going to be talking about it might be useful if 21 anybody ever is interested in what happened here to have 22 this'in front of them, so let me just. mention that Mr. Turk 23 .also just offered him an original and two and that is the 24 ~ number of exhibits we always need, and my policy is that I 25 don't admit exhibits until all the copies are in the hands
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L i
1009 ,
I 1 of.the Reporter, so for future reference, you can bear that l l
-2 in mind.
l 3 Mr. Reporter, do you have what you need?
-4 THE REPORTER: Yes.
l 5 JUDGE BOLLWERK: All right. Why don't'you just go ,
L i
( 6 ahead and mark it as Exhibit 1. l i
7 [ Exhibit No. 1 was marked for L 8 identification.]
9 JUDGE BOLLWERK: All right. Since I guess --
i 10 recognizing there are differences in this, I don't know .
t l 11 basically from the State of Utah or any of the other 12 Intervenors what their feelings are about either what has 13 been presented by Private Fuel Storage or what has been 14 presented by the Staff,
' (~%
g ,/ 15 Is there anything you want to say about that?
I 16 MS. CURRAN: Yes. l 17 JUDGE BOLLWERK: Before we get into the details?
18 Okay.
19 MS. CURRAN: In principle we think that the i
20 Staff's schedule, proposed schedale, would work for us l 21 assuming that PFS is able to answer this latest round of 22 RAIs by mid-February as we understand PFS is anticipating.
23 As we said in our motion, we are concerned that during the 24 informal discovery period we want to have an opportunity to l
25- look at whatever documents are filed in response to the RAI, i-k l
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1 l
1010 1 to ask PFS additional questions before we have to get into
(~%
(J ! 2 the formal discovery period which is going to go very 3 quickly.
4 That is our main concern, and then we have another 5 concern about the grouping of the contentions. The Staff and 6 PFS are proposing to move Contention E, which relates to
, 7 financial assurance, and Contention S, which relates to 8 decommissioning, into Group I.
9 We are very concerned that there's already quite a 10 few contentions in Group I that as a practical matter it is 11 going to be extremely difficult for the Staff to prepare and 12 present testimony on 11 separate issues in one deadline, and 13 the schedule is already set up so that there are three 14 groupings of issues to be litigated.
m k_j) 15 We think that a much more reasonable approach 16 would be to group issues so that there's a number of issues 17 in each group so that we have time to prepare adequately for 4
18 each segment of this case. Since the overall schedule is 19 governed by the ultimate schedule for the issuance of the 20 FEIS, which is three years away, putting issues from Group 21 II into Group I isn't going to make the ultimate decision 22 happen any quicker in this case, and we are extremely 23 concerned that that is going to make it very difficult for 24 us to do a good job of presenting our case.
25 JUDGE BOLLWERK: Okay. Let me just mention that I O
\-
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1011 1 probably should have given some background on this before we t'~T
! ,) 2 started talking about it, but the general approach with this 3 revision is to move the schedule back and it varies.
4 For instance, the informal discovery would be 5 moved back approximately two months. It would now end in 6 February of '99 rather than December 31st. Formal discovery 7 would begin on the 1st of March and move back -- I guess for 8 all parties other than the Staff -- back ,3out three months. I l
i 9 The Staff's discovery would move back -- it depends on the l
10 group of issues but anywhere from four and a half months to 11 as much as 11 and a half months, depending on what group 12 they fall into.
13 Then there is a different schedule for summary I 14 disposition motions. The hearings that were set would n.ove rh
(_,) 15 back as much as six months, six and a half months in some 16 cases, from what they were on the original schedule, so 17 things just kind of shift back generally.
18 MR. TURK: Your Honor, I think I need to give the 19 background.
20 JUDGE BOLLWERK: Why don't you go ahead, Mr. Turk?
21 MR. TURK: Maybe I should have done this first.
22 JUDGE BOLLWERK: Maybe that was true. I was 23 trying to maybe jump to the quick here and I shouldn't have 24 done that.
25 Why don't you go ahead?
i I
l <*s
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1012 1 MR. TURK: .Okay. I just want to give a little bit I 2 of a background-- -
)
3- JUDGE BOLLWERK: Okay.
4 MR. TURK: -- and understanding of what the 5 schedule represents.
-6 JUDGE BOLLWERK: All right, o
.7 MR. TURK: As the Board is aware, back in June you ]
8 issued an order establishing the schedule for the l
9- proceeding. When you did so, it was based upon a joint 10, proposal by the parties with some modifications by the l 1
~~, 11 Board.~~
12 That schedule, as I indicated in my letter of 13 November 24th of this year, had been based upon the
, <14 assumption that only one set of requests for additional
() 15 information would be issued to the Applicant. That has not
~~16. been.what the Staff has encountered or found to be necessary 17 in its review.~~
18 As indicated, again in my letter of November ~24th, l .19 we have determined that a second round of RAIs is necessary 20 and in fact that round of RAIs went out yesterday. The
' 21- -people in Utah may want to know that today at the prehearing I 22 conference I passed out to the Board members and other i 23 parties copies of the RAIs dated December 10, 1998, so all
~~24. persons in the hearing room in Maryland now have a copy of 25- that.~~
I t i l !
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1013 1
1 Other representatives will be getting their copies
-( ) 2 through the regular mailing process -- for instance, OGB and l
3 Castle Rock's attorneys and the other attorneys of record in 4 the proceeding were served by the Staff directly yesterday 5 by mail, so you will be seeing those in the mail within a 6 .few days.
7 On the basis of the need for additional 8 information from the Applicant, we have determined that if 9 the Applicant-gets their responses back to us within 60 10 days, the normal period of time for Applicants to do so, 11 i.e., they would be responding to us by February 15th of the 12 coming year.
1 13 We would then be able to take a position on the i
14 safety contentions which are subject to those RAIs or
() 15 affected by those RAIs four months later, and for that 16 reason the first and most primary change to the schedule is 17 shown by the Staff position on contentions date. That 18 changes from December 31st of this year to June 15th of the 19 coming year. That is a five and a half month extension of 1 20 the schedule.
21 If you go to the bottom line for Group I, you will 22 see that whereas the Board had originally expected to issue 23 a decision February 1st of the Year 2000, we are predicting 24 a decision July 15th of the year 2000. That is the same 25 five and half month extension that is triggered by the need l
l l
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1014 l
1 for additional information from the Applicant. There's a 2 parallelism between the five and a half months' extension 3 for the Staff position, and the five and a half month l 4 extension for a board decision.
f i
5 -That is reflected throughout the schedule leading 6 up to the Board's decision.
7 Again, with respect to Group I contentions, you L 8 will see there has been some extension of the discovery 9 period. That is not because the Staff needs that. That's 10 because the State of Utah has expressed a need for i
i 11 additional time for informal discovery and we have been i 1
12 trying to accommodate that in the schedule we are proposing.
13 . JUDGE BOLLWERK: Could you hold one.second? We 14 are picking up some background noise.
() 15 16 Can you check your volume in Utah, please? We are picking up a lot of background noise.
17 [ Pause.)
18- JUDGE BOLLWERK: Hold on one second here. I knew j 19 this was going too smoothly.
20 [ Pause.]
21 JUDGE BOLLWERK: Why don't you go ahead and 1
22 continue, Mr. Turk, and if it gets bad again, we will stop 23 and correct it, all right? And if anyone in Utah is having 24 any problems hearing us or if there's any problems, let us 25' know, all right, because we will obviously want to make --
l l
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1015 I 1 all you all to participate to the maximum extent poscible.
L 2 If you are having audio problems or whatever, let 3 us know. Okay Mr. Turk, why don't you continue.
l 4 MR. TURK: .Okay. I would like to stay with'the l 5 Group I contentions.for a minute.
f 6 JUDGE BOLLWERK: All right.
7 MR. TURK: On the third page of the E-mail 8 transmission that ILsent to tne Board and parties yesterday 9 evening, you will see a Footnote 6 and I thin?. all parties 10 should focus on this for a minute.
11 The Staff has in progress a number of safety 12 reviews as well as the environmental review for this 13 application. We have tried to set out for you what the 14 expected publication dates are of the various Staff review-() 15 documents. As you can tell, it's fairly extensive. It 16 begins this month with the publication of a notice for 17 opportunity for comment on the Hi-Star storage cask and it 18 then proceeds with all of the other review documents for the 19 Hi-Star storage cask, the transportation cask for Hi-Star.
20 the Hi-Storm storage cask as well then as the TranStor cask, 21 -both the transportation and storage components of that 22 review.
-23 It is a fairly extensive review. We should be 24 aware, as the Staff certainly is, that this Applicant is not 25 proposing the use of any cask that has been certified to ANN RILEY & ASSOCIATES, LTD.
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1016 1 date, but rather they are waiting for certification of other
( 2 casks through this other process, the TranStor and Hi-Star 3 and Hi-Storm review process, at which point they will then, 4 when those reviews are completed or at least some of those 5 reviews are completed, they will then seek to incorporate 6 the certified cask for use at their site, so those reviews 7 are a necessary precondition, predicate for approval of the 8 PFS application, 9 The Staff recently issued, and I think all parties 10 may want to note this, they may want to seek copies from 11 public document rooms -- the Staff recently issued a set of 12 requests for additional information to Holtec and that was 13 dated November 30th. I do have a few copies of that here in in 14 the room if othar parties who are present would like to get
( ,) 15 a copy or if the Board is interested in seeing it.
16 That was an extensive set of RAIs, even more 17 extensive than the RAIs that are being transmitted to PFS.
18 We are going to have to get good and timely 19 responses to those RAIs in order for our review of the 20 Holtec application to proceed on schedule and I have to note 21 for the record that if we do not get good quality, timely 22 responses from any of the Applicants, either for casks or 23 for this site, then that would affect our review schedule 24 and would necessarily affect our ability to go to hearing on 25 this application, but what we have tried to present for you
(;
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1017 1 in this last footnote of our proposed schedule is a sense of
() 2 what the Staff's review times are going to be and when we 3- expect to be able to complete reviews.
s 4 Of particular interest for the Group I contentions k 5 is the date of October 30th, 1999, which is reflected in 6 that Footnote 6, and that is the date that the Staff intends 7 to issue the site SER.
8 That SER will be addressing many of the issues 9 that are raised in the Group I contentions and our ability 10 to issue that SER on time will affect the litigation of 11 Group I contentions.
12 Moving over to Group II contentions, at this time 13 the Staff has proposed at the Applicant's request that the 14 litigation of financial assurance and decommissioning f%
( ,/ 15 contentions move forward into the Group I contentions.
16 We don't have a particular concern one way or the 17 other. I would leave that to the Applicant and the State to 18 argue when is the appropriate time for litigation of those 19 contentions. We believe that we will be able to proceed 20 with those as Group I contentions and we would be willing to 21 do so if the Board determines that that is appropriate.
22 The Group II contentions assume, as you will see 23 in the third box under Group II, that the Staff can issue a 24 position on contentions there by October 15th, 1999.
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1018 1 contains only three contentions, and those are the thermal 2 design, which is Utah'H, the cask / pad stability, which is 3 Utah GG, and the geotechnical contention, which is Utah I .
4- The Staff cannot address those concerns as part of 5 the Group I contentions because for the most part we have 6 not yet received the information we need from the Applicant.
7 The Applicant in January will be giving us their response to 8 the first round RAIs on geotechnical issues. Only after we 9 receive that response will we know whether or to what extent 10 we need to submit additional questions .o the Applicant :ba 11 order to come to closure on geotechnical issues, and I 12 believe that is the same with respect to the thermal design.
13 You will notice, by the way, in the RAIs that we 14 issued yesterday we highlighted in that letter both thermal
() 15 and geotechnical concerns - and if it is not in the letter 16 it is certainly in the RAIs themselves.
17 That leaves the Group III contentions, which are 18 the environmental contentions. I haven't tried to disturb 19 that schedule much. We are hoping that we can go along with
20. the schedule as written, but because we have these other two 21 sets of hearings to go through, I felt it's probably best 22 just to leave things as currently stated for the most part 23 and wait until later to make sure that we can meet that
~~24. schedule.~~
~25 JUDGE BOLLWERK: All right. Let me just note for b
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~~1 the record Mr. Quintana -- are you there, sir?~~
2 MR. QUINTANA: Yes, Your Honor.
)
3 JUDGE BOLLWERK: We welcome you this morning, and l 4 I take it you are here on behalf of the Skull Valley Band?
5 MR. QUINTANA: Yes, Your Honor. I was late in 6 getting here because I was ill this morning. I apologize. l 1
1 7 JUDGE BOLLWERK: Not a problem. I just wanted to 8 introduce you for the record and make sure that we are aware 9 of your presence.
10 'MR. QUINTANA: Thank you.
11 JUDGE BOLLWERK: Just so I can bring you up to 12 date, what we have talked about so far is informal 13 discovery, and we are now talking about a new potential 14 schedule for the proceeding, okay?
)
15 Mr. Quintana, just one question. Did you receive 16 a copy of an E-mail from the Staff that had a new master
~~17 schedule on it, proposed master schedule?~~
18 MR. QUINTANA: Yes, I received all of your i l
19 E-mails. j l 20 JUDGE BOLLWERK: All right, thank you. l 21 Okay, Mr. --
l 22 JUDGE LAM: Mr. Turk, based on reading the 23 Footnote 6 you were referring to, I see that for both 24 storage casks, the Hi-Star and Hi-Storm, the schedules are l
25 reasonably tight and you stated now there has been a more
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l 1020 1 . comprehensive set of requests for additional information.
2 Just looking at the schedule and reflecting on the 3 statement you make about this extensive request for ,
l 4 additional information, is it likely then the casks would' 5 not be certified according to this schedule?
6 MR. TURK: No. We are hoping that with good 7 quality and timely responses we will be able to proceed with 8 certification. I 9 You will notice, by the way, that there are two 10 I storage casks in -- 1 11 MS. NAKAHARA: I'm sorry, we didn't hear that. We 12 didn't hear the Staff's response.
13 MR. TURK: Judge Lam asked me whether we think it 14 will be likely or unlikely that we'll be able to meet the
{) 15 review schedule for Holtec, as I understand your question.
16 JUDGE LAM: That's right.
17 MR. TURK: And we are expecting that we will be 18 able to meet the schedule as long as we get timely, good 19 quality responses.
20 We have no reason to think that we won't get those 21 responses but the burden is on the Applicant, Holtec that 22 is, to be sure it gives us what we need at the time, and I 23 wanted to point out that for the Holtec universe of casks 24 that are at issue in this proceeding, there are two storage 25 casks. One is the metal Hi-Star cask and one is the --
~ /}
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1021 1 that's Hi-Star -- and other is Hi-Storm, which is the
(]
V 2 concrete overpack cask.
3 For the Hi-Star storage cask we are about to issue 4 a notice of opportunity for comment. We have completed our 5 review. We do have a draft SER on that that will be made 6 available to the public for comment, so that review is 7 virtually complete but for our analysis of public comments 8 and for management review in-house.
9 On Hi-Storm, which is the concrete cask, that is 10 what the large set of RAIs addressed that was sent out on 11 November 30th. I believe there is a meeting to be held with 12 Holtec next week, December 14th, to go over the Staff's RAIs 13 and a response schedule for Holtec, so at least as of this 14 time we are anticipating that with a good effort Holtec will l l 15 be able to satisfy us within this schedule.
(V~)
l 16 JUDGE LAM: Thank you, Mr. Turk.
17 JUDGE BOLLWERK: All right. At this point, why 18 don't we go ahead and hear from Mr. Gauklear, Mr. Silberg --
i 19 whoever wants to address this from the Applicant's point of 20 view.
21 MR. GAUKLEAR: Yes, Your Honor.
i
! 22 First of all, I would like to point out, Your i
23 Honor, that the Applicant has proposed a change in the 24 schedule based on the change in the Staff's review schedule, 25 and that is the only reason we have opposed it, and we have
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r 1022 tried to start-from when the Staff thinks it will be ready
~
1 ,
() 2 on its position, ready;to issue its position, and that has
'3 been the basis cul which we built our schedule. ;
~~4- We have tried to push up as many contentions up l~~
5 into the first group as possible-because we believe that 6 ~it's best to get as much done as early as possible in this We'are concerned about delay and slippage.
~
7 case.
8- Also, ideally we would like to see the FEIS moved l: .9 up if possible at some point in time and maybe even-l 10 combining Groups II and III, so we oppose what the State
! 11 suggests by its trying to make Groups I and II more equal.
12 We want to try to have as many issues as possible 13 in the first group, particularly if for some reason the 14 Staff's review based on some of these contentions in that 15 group then there may be less than what we have at this point 16 in time. Therefore, we firmly believe that the Board should 17 push up contentions Utah E and Utah S.
18 Also, we believe that'certain of the contentions 19 will be subject to summary disposition and will need not go l 1
~~20 to hearing and where we differ with the Staff is that we 21 believe that summary disposition can proceed prior to the 22 completion of the discovery against the Staff.~~
.23 JUDGE BOLLWERK: Let's hold off here one second.
24 We are getting -- a feedback problem.
l 25. [ Pause.] j i-() ANN RILEY & ASSOCIATES, LTD.
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1023 l
'l JUDGE BOLLWERK: Would you check your volume
["')' ;' 2 again? We are beginning to get some feedback here in xs 3 Rockville.
4 [ Pause.]
3 ' JUDGE BOLLWERK: All right. That seems to have i
', '6 taken care-of the problem for the time being. Why don't you 7- go ahead; Mr. Gauklear, and if we need to stop again, we 8 will.
9 MR. GAUKLEAR: As I was saying, the one point 10 where we differ, where our schedule differs from the staff,
11. is in the time you have summary disposition motions. We 12 believe that summary disposition motions can be handled 13 prior to the completion of the staff's -- discovery against
-14 the staff. The staff would have the summary disposition g
( 15 motions key off the end of its discovery -- end of discovery
.s 16 against-it, and have the final date one month after that for 17 filing of summary disposition.
18 We believe that that date can be pushed up, that 19 summary disposition can be filed earlier. We would be 20 prepared to file them earlier. To the extent that a party 21 claims it needs discovery against the staff to answer 22 summary disposition, the rules provide a mechanism for that.
23 And, moreover, under our proposed schedule, you will see 24 that the final date for filing responses to summary 25 disposition is, in fact, six weeks after the start of t
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1024 1 discovery against the staff. So to the extent that would 2 need some part, some discovery against the staff to answer a 3 summary disposition motion, they would be able to do that 4 upon asking the board for a request.
5 So we believe that our schedule is workable and 6 feacible. It will provide for a hearing this year on a good 7 part of the issues, and that's the reason we would like to 8 go forward on that schedule. l l
9 I would like to respond to one other thing the 10 state has suggested, which is that somehow the discovery 11 cut-off, or informal discovery cut-off, should be tied to 12 responses to RAIs. We disagree with that. We think that 13 there should be an informal discovery cut-off, regardless if 14 one or two RAIs may slip beyond -- responses to RAIs may A
I 15 slip beyond that date. To the extent that they need any 16 additional disccvery with respect to some response, that is '
17 always possible, but that is not a reason to extend the i
18 entire schedule. !
19 JUDGE BOLLWERK: Let me just say, in looking at 20 this, part of this -- I mean it seems to assume, I guess, 21 that the state will only be responding to summary 22 . disposition motions, not filing any of its own.
23 MR. GAUKLEAR: It is not necessarily assumed that 24 way, no, Your Honor.
25 JUDGE BOLLWERK: Maybe that was the assumption I l
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1 l
1025 1 drew when I looked at it, and maybe that is, as you say, not 2 correct.
3 MR. GAUKLEAR: It may be the situation, I don't 4 know. I know we would be filing. My understanding is the 5 ' staff would not be filing summary disposition motions on its 6 own.
t 7 MS. CHANCELLOR: Your Honor, it would be unlikely j 8 that we would file summary disposition motions.
9 JUDGE BOLLWERK: All right. Do you want to say 10 anything about that, Mr. Turk?
11 MR. TURK: Yes. We may file summary disposition 12 motions, but only where it is very clear that the outcome 13 would be judgment in our favor. I don't think there is any 14 use, personally, in filing summary disposition motions on (s )
(
%J 15 contested contentions where we know that there are going to 16 be experts on both sides. We know that you can't get 17 summary dispocition on a motion like that.
i 18 So what we would reserve our motions for are 19' instances where, for instance, there is dearth or a failure 20 of evidence on a contention in the discovery period. And we 21 should know that when formal discovery closes.
22 And I want to make one other comment in response 23 to the timing for summary disposition.
24 JUDGE BOLLWERK: Yes.
25 MR. TURK: Again, in footnote 6, you will recall l.
i i ANN RILEY & ASSOCIATES, LTD.
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I l 1026 1 that the staff is expecting to publish its site SER in l 2 October of '99. Because we will be working towards issuance
[O)
3. of that review document, at the same time that the hearing 4 steps will be going forward, we tried to adjust this 5 schedule so that we would be able to issue a site SER in 6 October and then file testimony one month later, November 7 30th of '99, because we felt we just need to focus our 8 resources on getting the review document out before we then 9 go into completion and polishing of testimony. We have 10 allowed one month after the SER comes out in order to do 11 that.
12 JUDGE BOLLWERK: All right.
13 MR. TURK: As far as the summary disposition 14 schedule, in light of the fact that we need that additional
,m
(
%/
) 15 time to finish testimony after issuing the SER, I felt there 16 was no reason to rush to summary disposition, that that 17 could be allowed to progress after the close of all 18 discovery and that would not affect the overall schedule.
19 JUDGE BOLLWERK: All right. Anything further you 20 want to say on that, Mr. Gauklear or Mr. Silberg, anyone?
21 MR. SILBERG: Well, just the one comment that I 22 have in general on the schedule is, you know, obviously, the 23 staff review has skipped, we have been -- has slipped. We 24 have been disappointed that the RAIs have not come out 25 sooner, the environment RAIs, we are told, are now going to l
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1027 1 be coming out in'the next week or two, a year-and-a-hait
)
2 after we filed the environment report.
3 I understand that the workloads are heavy in the
,4 spent fuel project office, however, I think we need a 5 schedule as a forcing function to make sure that this 6 hearing stays.on track as much as it possibly can. We will 7 obviously try to get our responses back as promptly as we 8 can, but it is hard to do that when the questions are late 9 in coming.
10 We would, therefore,.like to see the schedule stay 11~ as tight as it can, if only to act as a prod that all 12 parties act promptly. We think that that is important if !
13 this process is. going to be made to work in an efficient !
14 . way.
()
1
-15L JUDGE BOLLWERK: All right. I had mentioned at 16 one point, and I don't know if you are the appropriate 17- person or someone else, but about the Applicant's general i 18 schedule now in terms of the facility construction, if that
.19 . has changed any.
20 MR. SILBERG: Our schedule, we really have a two 21 track schedule. Our Commission regulations, we would not be 1 22 able to start construction until the environmental impact 23 statement is out and we do have a schedule which looks 24 towards starting construction in October 2000. That would, l
25 - obviously, require an exemption request to the Commission.
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1 With that schedule, we would be able to start operation fx
() 2 August of 2002. Without an exemption, we are looking at a 3 schedule which would call for construction to start in 4 August 2001. That would put operation in September of 2003.
5 JUDGE BOLLWERK: All right.
t 6 MS. CURRAN: I would like to ask for an l 7 opportunity for the state to respond.
l 8 JUDGE BOLLWERK: Surely. Go ahead.
9 MS. CURRAN: We think it is important to look at 10 the overall schedule for the staff's review, that our -- the
! 11 litigation here depends very much on when the staff l
(. 12l completes its review, and the state doesn't --
in the 13 state's experience, the schedule imposed on Intervenors for I 14 litigation does.not act as a goad on the NRC staff. The
). 15 staff has its own schedule for performing its reviews.
16 As you can see from footnote 6 of Mr. Turk's 17 presentation, there's quite a few reviews that need to be 18 done here before the PFS facility can be licensed, and all 19 those things are related and need to be finished before this
~
20 plant can be licensed.
21. We don't see any purpose that is served by 22 penalizing the Intervenors in the discovery schedule when 23 the actual schedule for coming ap with decisions by the l 24 staff is already set on a different track that has to do 25 with the staff's own resources for performing technical l
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1029 l
1 reviews.
( ) 2 October 1999 is an important date when the staff v
3 is going to issue the SER and the draft environmental impact 4 statement. In arguing that two of the issues, the financial l
5 assurance and decommissioning issues, ought to be put into 6 Group I, Mr. Gauklear said that PFS is optimistic that the 7 schedule for the EIS might be changed. It is the state's 8 view that that is very unlikely. The staff has many issues 9 that it is reviewing during the course of the next -- it is 10 less than a year now before this before this environmental 11 impact statement comes out, and we think that is overly 12 optimistic to think that somehow the DEIS is going to be 13 issued earlier than October 1999.
14 In one of the orders setting forth the framework l
,- \
( ,) 15 for this litigation, the board said that the purpose of 16 informal discovery is to allow the parties to get the big 17 picture so that we can make efficient use of what is a 18 relatively short time for formal discovery. We see no 19 reason why we should not be able to continue with that 20 approach and have an adequate period for informal discovery 21 to really get the lay of the land as this exchange of 22 information goes back and forth, and then use formal 23 discovery to refine it.
24 With respect to the grouping of the issues, not 25 only would it be extremely burdensome on the state to have
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1030 1 to litigate most of the issues in Group I, there is really
,- 2 no purpose' served'by that considering the fact that there
'3' are -- it is going to be several years before the EIS is 4 issued and the third group of issues can even be litigated.
i 5 -It makes sense to us to have three groups of issues, 6 relatively balanced, so that we can actually do a good job 7 of working wi*'I our experts, of analyzing the issues, of 8 preparing our testimony. The purpose of this intervention
'9 is to allow members 'of the public to do an adequate job of
~~10 critiquing this application and actually participate in a 11 meaningful way here.~~
~~12 And, finally, I would just point out that the 13 issues of decommissioning and financial assurance have 14 financial components to them that will relate to the cost~~
15 benefit issues raised in the NEPA case, so that in our view 16 it is better for the litigation to put those into the second 17 group so they can be developed more in conjunction with the 18 NEPA issues.
19 JUDGE BOLLWERK: All right. Anything you want to
-20 add, Ms. Chancellor?
21 MS. CHANCELLOR: No. No , that's fine. Thank you.
22 JUDGE BOLLWERK: All right. Let me then ask 23~ anyone out in our site at Utah if there is anything they 24 would like to say on this subject. Ms. Nakahara?
25 MS. NAKAHARA: No, thank you, Your Honor.
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J 1031 l' JUDGE BOLLWERK: All right. Ms. Walker?
~~2. MS.. WALKER: No, thank you, Your Honor.~~
)
3~ JUDGE BOLLWERK: All right. Mr. Allen?
4 MR. ALLEN: No, thank you, Your Honor.
5 JUDGE BOLLWERK: Mr. Quintana?
6 MR. QUINTANA: I would implore upon everyone to 7 expedite this process as much as possible so that if this 8 facility is. going to be built, that we try to avoid all 9 litigation delays on frivolous motions and all of the rest.
10 I think all of us are well adept at litigation games, and I 11- would implore upon everyone to move this process forward as 12 fast as possible.
13 JUDGE BOLLWERK: All right.
14 MR. SILBERG: Judge Bollwerk.
15 $
JUDGE BOLLWERK: Yes.
16 MR. SILBERG: If I could make a few responsive 17 comments. First, as I think Ms. Curran said, the purpose 18 here is to. critique the application and, yet, the state is 19 arguing for more delay because of the staff's review and the 20' staff's position. The application has been on the street 21 for a long time. The RAIs will have been on the street, and 22 the responses will have been on the street for a long time.
23 I don't think it is particularly burdensome for the state to 24 be a position to litigate those issues based on the 25 application and what the staff has had to say.
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1032 j
~~1. Second, with respect to the idea of grouping~~
)
2 contentions, typically, you go,to hearing on all the issues ]
3 at the same time. It is only because the EIS schedule right
)
-4 now is somewhat different and all the review schedules are i
j 5 somewhat different that we came up with the grouping. The 6, idea of artificially balancing groups of contentions is 7 really quite foreign, I think, to NRC practice.
8 And,_ finally, with respect to the idea that we 9 should delay financial qualifications because it somehow l
i 10 involved dollars and dollars were also involved in the cost L 1 l 11 benefit, the staft is of the view that it will have its i i
12 position on financial qualifications this June, and I see no j
13 reason why we'should-artificially delay that issue, which is 14 separate from the cost benefit issue, until the EIS ,
1 15 contentions are going to be litigated.
16 JUDGE BOLLWERK: All right, sir.
17 MR. GAUKLEAR: If I could just add one point.
l !
18 JUDGE BOLLWERK: Yes, Mr. Gauklear.
19 MR. GAUKLEAR: Also, under this schedule as 20 . proposed to be changed, the state would have three 21 additional months over and above what it had previously 22 under the previous schedule to develop these issues.
23 JUDGE BOLLWERK: All right. Mr. Turk.
24 MR. TURK: I have two comments, Your Honor, in 25 response to Ms. Curran and Mr. Silberg. First, I don't want
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l 1033 l
1 to advocate this schedule, I really only want you to see 2 what we believe is a feasible, fairly expeditious schedule. l
(~'J)
%~,
3 I think it is probably the best that the staff can do. I 4 want to point out, however, that the commencement of formal 5 discovery on March 1 of '99, for Group I, does reflect the 6 fact that the Applicant's REI responses are expected back in 7 February and, in fact, its responses to geotechnical issues l 8 for Group II are due back in January, according to 9 Applicant's resetting of that date. I 10 So that information will be out and available to l
11 the state before we even begin formal discovery. I think 1
12 that is certainly a date that should not result in any harm l 13 to the state.
14 And, secondly, there is a comment as to whether or
(~') 15 not the staff expects to advance the date for publication of LJ l
16 the EIS. I would say that is very highly unlikely. We will ;
17 be issuing a set of RAIs on environmental issues later this 18 j month, which will then begin the iterative process with the 19 Applicant for any necessary changes to the environmental 20 report or submission of additional information to satisfy 21 staff reviewers' questions. I do not expect that we will be 22 able to get the draft EIS out any sooner than the October 23 '99 that we are currently predicting.
24 JUDGE BOLLWERK: I notice in the schedule you also 25 deleted any reference to any kind of discovery against the l
l l
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1034 1
1 staff relating to the draft EIS.
[G,,T 2 MR. TURK: I am glad you noticed that. Yes, we 3 don't feel there is a need for that. Also, we looked at the 4 Commission's policy statement on adjudicatory proceedings 5 issued very recently, and we noticed there the Commission 6 had contemplated only one round of discovery against staff 7 upon publications of its final EIS, and no discovery on the 8 draft EIS.
1 9 We didn't see that there is anything to be gained 10 by putting the staff through two rounds of discovery and, 11 therefore, eliminated it, and I believe the Applicant has 12 concurred that they don't see a need for it as well.
13 JUDGE BOLLWERK: Anything you want to say about 14 that, Ms. Curran?
(~,,
(v) 15 MS. CURRAN: I just want to clarify that the 16 schedule proposed by the staff is acceptable to the state, 17 assuming that PFS is able to answer the RAIs by 18 mid-February, and that was our understanding as well, that 19 that was what it was based on. We would have a concern if 20 those answers come in late.
21 The other point I wanted to make was that, in my 22 experience litigating initial licensing cases before the 23 NRC, there have been numerous occasions on which safety 24 issues have been broken up into different phases. The 25 litigation has been broken up in order to permit the parties
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1035 1- -a meaningful opportunity to assemble their evidence and a'
, 2. present;their case.
3 JUDGE BOLLWERK: All right. Anything either board 4 member wants to say or any other parties? Let me just --
H 5 any other parties, anyone in Utah have anything further they 6 want to say?
7 [No response.]
8 JUDGE BOLLWERK: All right. Judge Kline.
9 JUDGE KLINE: It does appear from what we have-10 heard here this morning that the overall pacing items or 11 _ critical path items are related to'the staff's schedule, its 12 issuance of RAIs and its cask review, among others. So, my 13 question is, on the contentions that have been moved from 14 Group II to Group I, is there anything about them that are
() 15 16 pacing items cn: critical path items leading or affecting the overall conclusion of this proceeding? I mean is it really 17 important to move them to Group I for some scheduling i
18 reason?
i 19 MR. TURK: Your Honor, I don't see that that 20 really has an effect on the overall licensing schedule j 21 JUDGE KLINE: Okay. ;
22' MR. TURK: I would_ point out that in this last j
~23- .round of RAIs that,we just issued to PFS, there are 24l questions on financial assurance, but there are no questions 25 on decommissioning. Now, that's -- the questions that go i
( ANN RILEY & ASSOCIATES, LTD.
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1036 1 out on the environmental report, they contain a
{~ ')
2 decommissioning section, but that nelates to the cost
~
3
' benefit balance rather than to the information submitted to 4 date by the Applicant.
5 JUDGE ALINE: Does the Applicant want to say 6 anything?
1 7 MR, SILBERG: Yes, Judge Kline, if I might. That l 8 logic, I think, may prove a little too much because, if one 9 takes that approach, you could push all the issues off until 10~ the last stage of the hearings. I think it is in the best 11 interests of all parties, including the Intervenors, and the 12 board, that issues be litigated at the earliest possible i 13 time, rather than at the latest possible time.
14 We know that these schedules are not cast in
/~') 15 concrete. We know that things slip, we know it has taken a
.b 16 lot longer for certain actions to take place than people 17 thought. Hopefully, in the future, it will take less long 18 for other actions to take place, but we can't predict how 19 long any of these things would take. And I think for us to 20 assume that we can lively push items back and not affect the 21 ultimate schedule is really making an assumption that isn't 22 warranted.
23 I think we are much better off litigating things
~~24 when they are ready to be litigated, not based on the last 25 item. We shouldn't operate this hearing on the convoy gS ANN RILEY & ASSOCIATES, LTD.~~
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L 1037 1 system.
2 JUDGE'KLINE

Well, in this case, the staff didn't i 3 push it back, it sort of promoted it to an earlier L 4 litigation in Group I, i
! 5- JUDGE BOLLWERK: Moved it up in the queue.
6 JUDGE KLINE: Moved it up in the queue.
7 MR. SILBERG: Moved it up in the queue, but all 8 the schedules, you recognize, had been moved back.
9 JUDGE KLINE: All'I.am trying to find out, since 10 Tne -- and, in fact, we-have an objection to doing that, 11 whether it is essential to do it, or whether it is simply l
12 nice.
13' MR. SILBERG: In my view, I think litigating each 14 issue when it is ready to be litigated is essential for the
() 15 16 overall schedule of any hearing to be met.
JUDGE BOLLWERK: Ms. Curran, do you want to say l 17 something?
i 18 MS. CURRAN: The question is -- the question of 19 when something is ready to-be litigated also involves 20 whether or not the parties are capable of addressing all of 21 the issues in one fell swoop, and we would submit that that 22 is extremely burdensome and unnecessary in this case, and 23 the state resents the implication here that we are trying to 24 put off the litigation as late as possible.
25 We entered into an agreement with the Applicant a
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1038 1 and the staff'some months ago that we would group the issues
(T 2 in this particular way. If you will notice, most of the V 3 issues are in the first group. We are not trying to delay l 4 this hearing, we are trying to go ahead with it in a way 5- that it~can be done in a meaningful way.
6 JUDGE BOLLWERK: Let me just ask one other ;
~~7 question based on what I see in the schedule. It looks to i~~
l 8 me -- well, the Group II issues are set for only, if I am l
9 looking at it correctly, one month of hearing under the 10 revised schedule, because I guess there are fewer issues 11 there, is that correct?
12 MR. GAUKLEAR: That is' correct, Your Honor.
13- JUDGE BOLLWERK: So if the group -- the issues 14 that we are talking about now being in Group I, the
() 15 16 potential moves, or move back, does that' affect that hearing date? Then that has to move back to perhaps more than a 17 month? l 18 MR. GAUKLEAR: Perhaps, but I think four weeks l
-l 1
19 would still lx3 sufficient. !
20 JUDGE BOLLWERK: To do Group II, whether it was as 21 has been proposed now, or as it was originally proposed?
22 MR. GAUKLEAR: Yes, Your Honor. It would take 23 some additional time, but I think there is probably enough 24 extra time in theie that it would accommodate that.
-25 JUDGE BOLLWERK: Anybody else want to speak to l 7"' ~ ANN RILEY & ASSOCIATES, LTD. '
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I -
t 1039 l' that subject? Mr. Turk?
.2 MR. TURK: I would only point out that the Group
! 3- II' contentions that remain in this proposal involve cask- i l 4 issues, which, in turn, depend upon which casks are going to 5 be used at the site. That is the thermal design contention, 6 the geotechnical, and the cask pad stability issues. It is 7 difficult to predict at this time to what extent those i 8- hearings will be extended because we will be using certified i
9 casks.
10 As the board is aware, the process for commenting
~~11. upon and objecting to any parts of the cask design are going~~
~
12 to be subject-to rulemaking. It would not be subject to .
l 13 litigation in this proceeding. That would tend to speed i 14 things up in our proceeding.
( 15 So,' my own conclusion is I believe four weeks
]
16 should be sufficient time for litigation of those cask 17 issues. I don't see financial assurance and decommissioning 18 as.being very time-consuming hearings, not for this type of 19 application. I could be wrong, but I don't see a need for 20 more than four weeks in either event.
21 JUDGE BOLLWERK: Whether the issues are in Group 22 I, as they were originally grouped, or if they were moved to 23 Group ---I'm sorry, originally Group II, as they were 24 originally grouped, or moved to Group I?
25 MR. TURK: Yes. I think that the original L
l
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1040 11 allocation of two months for hearings on five contentions
\
(v ') 2 was a little excessive. I could be proven wrong, it depends 3 upon the testimony and the cross-examination. If parties
~~4. choose not to cross-examine, the time would go very quickly, j 1~~
5 we would be done in a day. But that is not going to happen.
6 On the other hand, I don't think we need two months for 7' those five contentions.
8 JUDGE BOLLWERK: I will certainly encourage the 9 idea, though. l l
10 MR. SILBERG: I just would not want to be overly j i
11 optimistic. If you look at the financial assurance !
12 contention, one can read into that many subissues, and it i
13 may not be quite as simple as some would suggest. I would '
14 not want to assume that that would be a day's worth of 15 testimony.
16 JUDGE BOLLWERK: Let me just ask one other, I )
~~17 guess, related question. I notice there was a slight U l~~
[
18 amount, I think two weeks additional time that was provided l 19 for the proposed filings -- for proposed findings, excuse 20 me,-for Group I. Did that reflect the fact that additional 21 isitues were put into that group?
22 MR. TURK: No. That was based on my own 23 assessment that allowing only 30 days for that number of 24 contentions was really squeezing a bit too much. And if 25 will you give me one second, I want to see if there is a l
~'
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1 L 1041 l- l l 1 reviewLissue-raised by that as well.
() 2 JUDGE BOLLWERK: What I am talking about is at the I 3 bottom of the first page.
'4 ' MR. TURK: Right. No, that's correct, Your Honor.
L l- 5 I think that 45 days would be an appropriate amount of time l-l 6. for that first set of proposed findings on such a large p
l 7- rundoer of contentions. If the board holds to the original 8 schedule of 30 days, we would abide by it as well.
9 JUDGE BOLLWERK: All right. Anything further 10 anyone wants to say? 'Yes, Ms. Curran.
11 MS. CURRAN: This is a really minor comment.
12 JUDGE BOLLWERK: All right.
I ~13 MS. CURRAN: But we did not notice that the 14 hearing on Group I is scheduled to begin the 2nd of January, 15 which we think may be a little unrealistic.
16 MR. SILBERG: Make it the 3rd.
17 MS. CURRAN: Okay, Jay.
4 18 JUDGE LAM: What is the story about a Y2K problem?
19 [ Laughter.)
20 MS. CURRAN: It is thinking more about the problem 21 of.getting expert' witnesses to work over the holidays.
22 MR. TURK: And we would have difficulty flying 23 into Utah at the end of the Christmas week with all the ski 24 vacations that take place, so there may be some practical l '25 need to move that date a little bit.
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I l 1042 1 JUDGE BOLLWERK: All right. I would also note, 2 not that it is a big matter either, but the schedule as it (J
L '3 now was, has been revised, has us issuing an initial 4 decision in the middle of trying the Group III issues, which 5 I don't know that you all would want me typing necessarily 6 while I am listening to evidence -- but maybe that doesn't 7- -- anyway, I take it the Group III issues, you really 8' weren't focusing on.
9 MR. TURK: That's correct. I think it is 10 important that we proceed with safety issues and recognize 11 that there will be a time in the future when we have to 12 focus more closely on the environmental schedule.
13 JUDGE BOLLWERK: All right. Anything further 14 either of the board members has on this subject?
15 JUDGE LAM: No.
i 16 JUDGE KLINE: No. I
.17 JUDGE BOLLWERK: All right. Anything further 18 anyone from the Utah wants to say with respect to the 19 schedule? Mr. Allen?
20 MR. ALLEN: No. Nothing, thanks.
21 JUDGE BOLLWERK: Ms. Walker?
22 MS. WALKER: I have a question about no discovery 23 on the draft EIS. I was thinking 1 ' the opportunity for 24 discovery might mean that we would comment more effectively 25 on the draft. And my experience is that effective comments i
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1043 1 at the draft stage'can be very helpful in resolving issues, l-p) 2 so I~was wondering if maybe we could revisit that question.
3 MR. SILBERG: The issue of commenting on the DEIS l 1
4 is totally different, totally separate from the licensing 5 proceeding, and, obviously, everyone will be putting in 6 comments and the more thoughtful and well documented the 7 comments, obviously, the better. But I don't think that 8 affects, or ought to affect, the discovery process. ,
1 9 JUDGE BOLLWERK: Anything you want to say on that 10 subject, Mr. Turk?
11 MR. TURK: Yes. The reason for publishing the 12 draft EIS is to permit other federal agencies, state 13 agencies and members of the public to comment on the draft l 14 EIS, and there is an established method for doing that. The l A
( ,) 15 staff then takes those comments into consideration when we 16 issue the final EIS. I don't see that you need discovery in 17 order to submit comments on the EIS. In fact, most agencies 18 are not even involved in the discovery process at all when 19 they prepare draft or final environmental impact statements, 20 so I don't see a need for discovery for that purpose.
21 JUDGE BOLLWERK: All right. Ms. Walker, anything 22 further you want to say on the subject? Or anyone else?
23 MS. WALKER: No, thank you.
24 JUDGE BOLLWERK: All right. Ms. Nakahara, 25 anything you would 14.he to add' l
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j. 1044 1 MS. NAKAHARA: No, thank you, Your Honor.
~~2 JUDGE BOLLWERK: All right. Mr. Quintana?~~
)
l 3~ MR. QUINTANA: ' Because I am new to this process --
L 4 Your. Honor?
f 5 JUDGE BOLLWERK: Yes. We can hear.
6 MR. QUINTANA: Because I am new to this process, I l
7 am curious at what point I will be able to call' expert 8 witnesses on behalf of.the Skull Valley Band of Goshutes. l 9 JUDGE BOLLWERK: Well, in terms of calling them, I 10 mean the appropriate point,-that is something you need to 11 talk with, I guess, Mr. Silberg or Mr. Gauklear about, since 12 I think they are the lead counsel for all the issues that ;
i 13 you would have -- have some impact on you. That may be l 14 something you all need to work out together.
) 15' MR. QUINTANA: Thank you.
16 JUDGE BOLLWERK: All right. Does that'--
1 17 MR. QUINTANA: Okay. That answers my question. l 18 MR. SILBERG: Yes, Your Honor.
19 JUDGE BOLLWERK: Okay. Let me just make -- this 20 is something I would say the board is going to have to take 21 ~under advisement. There is a lot here and I think, 22- certainly, before -- within the next week, I am sure, will 23 come out. There are obviously some interviews that are 24 going on, and we will try to give you an answer, certainly 25 within the week, so that you will know what the situation ANN RILEY & ASSOCIATES, LTD.
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1045 1 is.
() 2 3
I just wanted to make one other observation, guess, with respect to this whole process, and that is, if I.
4 we were to move things, would there be, in terms of moving 5 the hearing dates back to some degree, whether we adopt the 6 Applicant's or the staff's suggestions, going forward with 7 limited appearance statements by the board in the spring or' 8 summer, to begin that process. Does anyone have any 9- . thoughts on that or problems with it?
10 MR. SILBERG: I don't have any problems. I don't 11 know that it is worth the resources for everyone to come out 12 to Utah just to hear limited appearance statements. I 13 think, from our standpoint, we would rather wait until the 14 beginning of the evidentiary hearings, as is more typical.
( 15 We don't have any grand objection to that, I just don't know 16 whether it is necessary, unless there is some other reason 17 that we would all find ourselves in Utah.
18 JUDGE BOLLWERK: For instance, we have a 19 prehearing conference or a summary disposition argument, 20 that might be --
21 MR. SILBERG: Yes. That could be possible.
22 JUDGE BOLLWERK: All right. Staff have any 23 thoughts on that, any preferences one way or the other?
24 Don't care?
25 MS. MARCO: I believe we would be able to support i ANN RILEY & ASSOCIATES, LTD.
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1046 b 1 it either way.
L (q ,/ 2 JUDGE BOLLWERK: All right. Anything the State 3 wants to say in that regard?- No comments?
4 (No response.]
5 JUDGE BOLLWERK: Anybody from the Utah side have 6 any thoughts about that?
7 [No response.]
8 JUDGE BOLLWERK: All right. That's something we 9 can think about, then.
10 MR. TURK: May I ha re just one minute, Your Honor?
11 JUDGE BOLLWERK: Yes.
12 MR. TURK: I was just checking 10 CFR 2.715, and I 13 agree that at any prehearing conference or hearing, the 14 Board'may commence the taking of limited appearance
() 15 statements.
16 JUDGE BOLLWERK: All right.
17 MR. TURK: We wouldn't object if the Board 18 determines that that would be useful.
19 JUDGE BOLLWERK: All right. That's something we 20 can consider as well, I guess,.in the course of all this.
21 I think, unless someone else has some comments, 22 that about wraps it up for the scheduling portion and status 23 portion of this part of the proceeding.
.24 Let me just make one other comment about a related 25 matted. Up to this point, you all have been sending us your t Jumi RILEY & ASSOCIATES, LTD.
Court Reporters
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1047 1- documents for the most part electronically. I think we have 2 a fairly complete database.
x.)
['\ And I'm hoping we've finally 3- gotten our Office of -- cnr Information Resource Management 4 Office to perhaps begin putting some of those up on a 5 Website. I don't know how quickly it's going to happen, 6 . what the access to it will be.
7 Also, we're trying to work with them to begin an 8 electronic filing project where we would use this case 9 actually as a way to get documents into the case. We were 10 all sending them by E-mail but actually to file them 11 electronically. That may be something we'll be getting back 12 to you on to talk with you more about sort of as an 13 administrative matter.
14 Yes.
,em.
i
) 15 -MS. CURRAN: Pardon my ignorance, but what's the 16 difference?
17 JUDGE BOLLWERK: Well, this would actually be, 1 l
18 perhaps, if it went far enough, actually doing away with the !
19 paper copies, where everybody would simply get -- there i 20 would be an electronic copy and that would be it.
21 MS. CURRAN: That's a frightening --
22 JUDGE BOLLWERK: There's going to be back-up for l '23 all - this whole process a while, but --
24 MR. SILBERG: That's what they said in San 25 Francisco a few days ago, too.
1.
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i 1048 1- JUDGE BOLLWERK: -We're actually probably farther
['/Y
'A 2'
3 along in that process than I think just about any other proceeding, certainly-that this panel has, and that's a' good 4 thing, I think. E-mail has made a big difference, it seems' 5 to me, in just the way that things are exchanged.
, 6 MR. SILBERG: -We trust the Board to drag us all 7 into the 21st Century.
8 [ Laughter.]
l 9 JUDGE BOLLWERK: I'm just sort of feeling my way 10 .along as well. But one of the things I have always wanted 11 to do is get an electronic database of some kind up if we 12 could on the Website, and I'm hoping that may, in fact, 13 happen.
14 That's something you had mentioned at one point,
/
( )j .
15 Ms. Chancellor, to us. You were sending all thia in --
s 16 where was it? Maybe at one point, it will be on the 17 Website. It's not clear to me yet, but we're still working 18 on it. So I just wanted to let everybody know that.
19 MS. CHANCELLOR: Well, send us your address when 20 you get it.
21- JUDGE BOLLWERK: All right.
22 [ Laughter.]
~~23. JUDGE ~BOLLWERK: At this point, we're almost to 24 12:30.~~
25' Ms. Walker, can I ask you a question?
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l 1049 i 1 MS. WALKER: Certainly.
,mx is 2 JUDGE BOLLWERK: If you can move the -- you can't 3 move the camera over in that direction.
4 How long do you see your presentation taking? And 5 what I would contemplate --
6 MS, WALKER: Five to ten -- l 7 JUDGE BOLLWERK: Let me let you comment on this as l l
8 -well. I would contemplate perhaps dividing it into two 1 9 segments: one to talk about the intervention itself and one j 10 to talk about the contentions. !
l 11 If you have a different way you want to present 12 it, I'm certainly willing to entertain that. And then sort 13 of how long you see -- I'm not trying to hold you to a 14 specific time; I'm just trying to get some sense of how long
) 15 you think you might need.
16 MS. WALKER: Right. It's fine to divide it up 17 that way. I'm much more concerned about responsive time 18 than the initial presentation. So I'm more concerned about 19 having the opportunity to respond to the staff and the 20 applicant.
21 JUDGE BOLLWERK: Right. And you will definitely 22 have that. The question I'm trying -- do you think your 23 initial presentation is going to take ten minutes, 15 24 . minutes total or longer than that?
25 MS. WALKER: Sorry. Five to ten minutes.
l t ANN RILEY & ASSOCIATES, LTD.
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1050 1 JUDGE BOLLWERK: All right. We probably should go L() 2 ahead. Let's at least take a five-minute break here and let 3 everybody get an opportunity to go out and use the 4 facilities if they need to or whatever. Should we say ten 5 minutes? Is that sufficient? We'll come back at 12:30 6 here, which would be 10:30 there, and let's proceed with 7 your presentation, see how far we can get. If we can do the 8 whole thing before a lunch break, we'll do that; if not, 9 we'll see where we are, and if we need a break, we'll do l
10 that, all right?
11 So let's take ten minutes. We'll come back at 12 12:30, 10:30 in Utah.
13 [ Recess.]
14 JUDGE BOLLWERK: Why don't we go on the record.
) 15 All right. Ms. Walker, we're back on the record.
16 If you would like to go ahead and present your presentation 17 about the Alliance's intervention petition. Let's talk 18 about that first. We'll get responses here with respect to 19 that, then you'll have an opportunity to give us a reply.
20 Let's focus this at this point, though, on the 21 admissibility of the intervention petition, and then, when 22 we're done with that, we'll look at the contentions, all 23 right? And you're on.
24 MS. WALKER: Okay. The context of SUWA -- that's 25 the Southern Utah Wilderness Alliance; we term the SUWA --
l I
-(\-s/) ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034
1051 l' amend license application as an amendment to PFS's t 2 application which proposes for the first time a low rail IL 'J 3 _ spur, and it's going to be on the west side of Skull Valley.
4 SUWA immediately identified that this proposed 5 rail line would threaten the wilderness character of the 6 North Cedar Mountains road-less area, and on the basis of 7 that, SUWA filed its petition to intervene and request for 8 ' hearing and contentions. I 9 Now, the considerations for a late-filed petition l 10 is - _there's five factors. The first of those are good 11 cause for failure to file on time -- for failure to file on 1
12 time. SUWA responded as quickly as it could to the license !
i I
.13 amendment, and because it wasn't participating in this !
'14 process initially, so that it was new to the process, it (n) ,
15 took a little bit of time, but given the amount of work that 16 SUWA had to do, their petition was filed as quickly as 17 possible.
18 In addition, because SUWA received absolutely no 19 notice, nor did any other members of the public other than 20 the people already involved in the proceeding of this ;
21 amendment, I would suggest that they have met the good cause l 22 requirement as a matter of law because they received no l
23 l notice.
24' In our reply, we were more specific as to what i l
25 SUWA had to do in order to file its petition, and I think if L
l O ANN RILEY & ASSOCIATES, LTD.
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1052 l' the Board takes a look at those series of steps that they
() 2 had to take, they will agree that SUWA acted promptly.
3 The second factor is the other means. So, in 4 other words, is there any other way that SUWA could have its 5 interests seen to other than this proceeding. And there 6 aren't.
7 As the board mentioned in the context of the 8 State's late-filed contentions with regard to the low rail 9 spur, there were no other means for the State at that point 10 to safeguard its interests, and for similar reasons if not 11 even more so, there's no way that SUWA could safeguard its 12 interest other than participation in this proceeding.
13 No one in this proceeding has identified the North 14 Cedar Mountain road-less area as possessing wilderness 15 characteristics and no one has sought to protect those 16 wilderness characteristics.
17 The third factor is the development of the record.
18 Again in our reply on page 5, we set forth in more detail 19 just exactly what SUWA would plan to add to the record.
20 Now, these issues deal with the wilderness character of the l 21 North Cedar Mountain road-less area and what constitutes 22 wilderness under the Wilderness Act, how those criteria were 1
23 applied to the area at issue, and the impacts that the
! l l 24 proposed rail spur would have on these characteristics. l 1
25 We would also have our biologist talk to the l-i l ) ANN RILEY & ASSOCIATES, LTD.
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r !
~~1053 i~~
L 1 importance of. preserving large tracts of land for wilderness :
(
2 designation, the need to prevent habitat fragmentation and f 3 ecosystem management gradients to preserve bio-diversity 4- along elevation gradients, and the importance of foothills 5 and benches in'this notion of gradients and large tracts of 6 road-less areas, and the impacts that the proposed facility 7 would have on these values.
8 The fourth factor is the existing parties won't 9 represent SUWA's interest, and there's no other party that 10 has identified, as I said before, the wilderness ;
1 11 characteristics of the area and no one has sought to protect I 12 those characteristics.
13 The fifth factor is, will intervention -- or will i i
.14 consideration, I guess, of the late-filed petition unduly
) 15 broaden or delay.
16 We just witnessed that at least both the staff and 17 PFS have agreed to postpone the end of informal discovery.
18 We haven't gotten to formal discovery yet. Not only that, 19 that SUWA's contentions would probably be grouped in the 20 very last group, which is the furthest away, and so everyone 21 would have plenty of time to deal with SUWA's issues, which 22 are rather narrow and probably wouldn't be that burdensome 23 to deal with.
24- So after the Board determines that SUWA's 25 late-filed petition should be considered, then they have to i
L fj
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-1
1054 1 address standing. Standing comes from the case of L.K
/) 2 controversial -- controversy provision of Article 3.
NJ 3 Although the tests vary, typically you have to show injury 4 in fact, which is an injury that's concrete and actual and 5 not conjectu'ral.
{
6 SUWA has established through the affidavit of Dr.
7 Caitlin that the injury that they stand to suffer if they 8 are not allowed to participate in this proceeding is l
9 concrete. The proposed project will harm the wilderness 10 characteristics of the North Cedar Mountain road-less area, 11 and that will harm the interest of SUWA and Dr. Caitlin.
12 And it's actual. The important thing is to view 13 not necessarily SUWA's interest, although their ultimate 14 interest in this issue is to protect the road-less area as a
() 15 wilderness area, and that does depend on Congressional 1
16 action. But they definitely have a legitimate interim goal, 17' which is to preserve the area in its current state and I 18 thereby preserving the wilderness characteristics.
19 Now, this interest exists regardless of what 20 Congress does because it exists now. And the fact thn: the 21 proposed project threatens these characteristics therefore 22 is an actual and impending harm.
23 The next part of the standing test is the causal 24 connection or the traceability. So, in other words, is the 25 harm traceable to the actions in this case of the NRC?
l t
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I 1055 l
1 Now, the NRC ultimately has the decision to I
() 2 approve or reject a proposed rail spur. If it is rejected j 3 and -- and I know this sounds like the redressability 4 argument, but they tend to be pretty much the same as far as 5' I can tell.
6 So there is a causal connection between the harm 7 that SUWA envisions and the activities of the agency, which 8 is the NRC in this case. And again, the redressability, j 9 which is quite similar, is if the low rail spur is rejected !
10 or somehow realigned so that it doesn't impact or impact to 1
11 the degree that it stands to impact at this point the 12- wilderness characteristics of the area, then SUWA will not
]
13 be harmed because the area will remain in its current state !
.14 and leave open the option that Congress can declare it a 10 C /. 15 wilderness +.rea.
16 So if the board isn't convinced, as I think it i
17 should be, that SUWA has standing for the purposes of this 18 proceeding, the Board also has the opportunity to grant
.19 discretionary standing. ,
20 Now, the factors addressed in discretionary 21 standing are some combination of the late-filed petition 22 factors and the normal standing factors and essentially have 23 been addressed already, but I'll review them.
24- The sound record issue comes up. One of the 25 important things -- so that to the extent that SUWA will l
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8 1056 1- contribute to a cound record that speaks in favor of
'(' 2' discretionary standing, I think that it's clear that the L
3 issues of the potential environmental impacts of the low 4 rail spur need to be addressed as part of the NRC's 5 obligations under its regulations, and the low rail spur 6 brought up new issues and these issues should be addressed.
7 For the decision regarding the low rail spur and 8 the facility to be sound, it needs to address.these issues 9 as required by the NRC regulations.
10 SUWA's interest -- the interest being the second 11 factor that favors discretionary standing -- is very 12 profound. I think that we established in our motion to 13 intervene that SUWA has been deeply involved in the 14 management decisions affecting public lands, particularly (n) 15 those possessing wilderness characteristics.
l 16 They were interested in this long before NRC -- I 17 mean the low rail spur was ever suggested. They have had 18 members who care about these areas inventory them, suggest 19 that this -- the results of these inventories be placed in 20 litigation and also become the subject of SUWA's protective 21 scheme or strategy.
22 So in other words, once these areas are identified 23 as possessing wilderness cha:.acter, SUWA then adopts them, 24 so to speak, and does everything within its power to protect 25 that wilderness character until Congress has the opportunity I'~/'
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-1057 1 .to act on their potential for wilderness designation.
() 2' The redressability factor again favors 3 discretionary standing for SUWA. If the low rail spur is 4 rejected or realigned in such a way that it protects or at 5 least helps protect the wilderness character of the North 6- Cedar Mountains, SUWA will be less harmed, and also the area 7 will maintain its wilderness character at least until future 8 management decisions impact it. i 9
l But the important thing is that the baseline of 10 future management decisions will be the state of the area in i
11 its -- well, the current state of the t rea in its relatively lL2 pristine state. So if, for example, NEPA were conducted on i
13 any future management decisions, the no-action alternative i 14 would be preserve it in its current state. If the proposed b) g,, 15 rail spur were built,_this would no longer be an option.
16 Factors weighing against discretionary standing 17 are availability of other means. As I suggested before, 18 there aren't any other available means other than this 19 proceeding in which SUWA could protect the wilderness 20 character of the North Cedar Mountains from the development ;
21 of the low rail spur. No other group has brought up the 22 issue, and so representation by others is not -- will not 23 work against SUWA's potential as a discretionary intervenor.
24 And again, SUWA's intervention wouldn't unduly broaden or 25 delay the proceedings since Group 3 contentions have been i
I l -
i
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1058 1 delayed a bit. The draft EIS won't be out until October 30,
( 2 1999 and informal discovery has yet to cease.
~~l. L~~
.3' So I think that all the factors weigh in favor of 4- SUWA's petition to intervene and request for hearing. They 5 have met the late-filed contention requirements, and so 6 their petition should be considered They meet the standing 7 test. And even if they don't meet the standing as a right 8 test, they meet the discretionary standing test.
9 Thank you.
10 JUDGE BOLLWERK: All right. In terms of the order 11 of presentations, the State made a filing in this regard.
12 If you all want to -- since you're supporting the petition, 13 if you would like to say something at this point and then 14 <we'll move to the applicant and then to the staff.
p)
(_ 15 Let me just check. My understanding is that there 16 is not anyone else other than Ms. Walker and Utah that's 17 going to be speaking to this subject; is that correct?
18 MR. QUINTANA: The Skull Valley Band of Goshute is 19 opposed to this intervention and would like just two minutes 20 to address it at the end of everybody's presentation.
21 JUDGE BOLLWERK: All right. What I will do is 22 allow you an opportunity after -- and Mr. Gauklear, you want 12 3 to speak for the applicant? -- after the applicant has 24 spoken, and then we'll allow the staff to speak, and then 25 Ms. Walker, after the staff has had their opportunity, we'll
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l 1059 "1 go back to you for any reply comments you want to make. f
) 2 Is that clear to everyone? All right.
L l 3 . Ms. Chancellor, then.
4 MS. CHANCELLOR: The State stands by the petition, '
5 the response that it filed. We believe that the low rail 6 spur is a significant license amendment, it's a significant.
7 change from what was initially proposed whereby there was 1
l 8 potentially a rail spur that would have parallelled Skull 9 Valley Road in an existing disturbed area and a 10 right-of-way. I might add, PFS did not have the permission ,
11 to build the rail spur in that area. ,
l 12 So whether a rail-spur was actually a viable 13 option or not at the time that PFS submitted its application ;
, 14 was very much up in the air. So I don't believe that there i
l 15 is any way in which SUWA could have anticipated that there 16 would be a rail spur in the middle of Skull Valley that 17 would affect the wilderness area of the North Cedar i
l 18 Mountains.
19 In addition, we have seen in this proceeding that l
20 even parties admitted weren't aware of the license 21 amendment, so that also goes to the no notice.
22 Finally, even if the State were involved and even 23 if the Board did admit the State's contentions with respect 24 to the low rail spur amendment, the State is in a
-25 substantially different position than SUWA in terms of ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034
1060 1 advocating wilderness status for lands under the BLM --
2 what's called FLMPA. I don't know if Judge Kline knows that
()'i Q
3 acronym, but it's the Federal Land Management Policy Act. I 4 And SUWA has been involved in those issues for many, many 5 years. This is not a new issue, and it's something that the 1
6 State believes that it cannot represent SUWA's interests on. !
7 So I believe that Ms. Walker has laid out for you l
8 adequately and sufficiently why SUWA meets the standing, l 9 either standing as a right or discretionary standing, and we 10 urge the Board to look favorably on their petition.
11 JUDGE BOLLWERK: All right. Thank you.
12 Mr. Gauklear. l 13 MR. GAUKLEAR: Yes, Your Honor. j 14 Applicant opposes SUWA's intervention in this case
/m.
( ) 15 on several basis. First, we believe that SUWA has not met V
16 the standards for late-filed petitions. We've heard talk j 17 this morning about claimed lack of notice. The license 18 amendment was not published in the Federal Register because 19 it was not required to be. j i
20 But I wanted to point out that as part of the EIS
{
21 scoping process at the meeting held in June, this past 22 summer, PFS alerted the public to the fact that it was 23 considering a rail spur alternative on the west side of the 24 Cedar Mountains, west side of Skull Valley. ;
25 I refer the Board to a letter from applicant's
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1061 1 counsel dated June 8th, 1998, where we summarized Mr.
()
i 2 Donnell's presentation at that EIS scoping meeting. So 3 there was, in terms of notice of a potential rail spur, 4 there was notice of that fact.
5 They also claim that even once they found notice, 6 they acted diligently to file timely. However, as the Board 7 itself has noted, the delay depends on the complexity of the i 1
8 issues involved. You noted that in your last decision with )
I 9 respect to the low rail corridor. '
In this case, the complexity of the issues with 11 respect to SUWA's intervention are not that involved. It 12 involves the location of the rail spur, which is evident 13 from the amendment application, and there's approximately 14 ten to 20 pages in the ER that describe the rail spur, its I \
(j 15 effects, et cetera.
)
16 So the complexity of the issues were not that l
17 great, and we believe they were late in filing their 18 petition.
19 With respect to the second factor for late-filed 20 petitions, there are other means by which SUWA can protect 21 its interest.
22 One, it can provide comments on the draft EIS to 23 the NRC.
24 Second, SUWA itself has noted that it can go to 25 Congress. It has gone to Congress in the past, in fact,
\
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1062 l 1 trying to get this area designated-as wilderness.
(~'y 2- WitH respect to the third factor in terms of what V
3 SUWA would add to this proceeding, in their reply, for the 4 first item, they do list witnesses and areas of testimony 5 that these witnesses would provide. But if you look at what 6 they provide there, it is less than David Schen's affidavit 7 that was filed in support of the State's late-filed 8 contentions on the low rail corridor. And this Board found 9 with respect to David Schen's affidavit that it falls i 10 considerably short of the specificity required regarding 11 witness identification and testimony summaries. For the 12 same reason, we would believe that what SUWA has provided 13- here falls considerably short of that required by the NRC.
14 SUWA says that its participation will not delay I\
d 15 this proceeding because discovery has been extended, because 16 discovery is ongoing. But as the Board has pointed out and 17 with respect to its decision again on the low rail corridor 18 contentions of the State and the other parties, the other 19 part of this factor is whether it will broaden the issues in 20 this proceeding. ;
1 21 SUWA's participation will broaden issues. In 1 l 22 fact, it could lead to delay as a result. It may lead to 23 subsequent REIs by the staff. We don't know. But it will 24 definitely broaden the issues in this proceeding.
25 Therefore, we believe, on the balancing, we I.
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1063 1
believe that SUWA has not met the factors for late-filed
'(
2 intervention here, and its intervention petition should be 3 denied on that basis alone.
4 We also believe that SUWA has not met the 5 requirements for standing. We have discussed that at length 6 in our brief. We believe that the interests that SUWA seeks 7 to protect here, the designation of this as wilderness area, 8 is legally non-existing or alternatively way too conjectural 9 to be part of this proceeding.
10 BLM made a decision with respect to this precise 11 parcel of land 18 years ago that it did not possess the 12 wilderness characteristics necessary to be designated as a 13 wilderness area. It did not even designate it as a 14 wilderness study area, as it did to the area to the south.
[)
\s 15 BLM is the responsible federal agency in this area 16 and the NRC is not to second-question the responsible 17 federal agency in terms of the decision made, and that's the 18 Hydro Resources case, a case that we cited in our brief and 19 which SUWA does not refer to at all in its reply. .
20 Now, SUWA does argue in its reply that BLM might 21 reconsider and revaluate whether this area should be 22 wilderness. But although BLM is undertaking a reinventory 23 of its land right now, that reinventory, as we pointed out 24 in our brief, does not include this area. So BLM would have 25 to change its mind to take a look at this area again.
l l
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1064 1 Moreover, BLM would have to change its mind with 7
l V[ 2 respect to its original-decision back in 1908 and determine 3' that this area was -- did qualify for wilderness i 4 characteristics.
5 If we look at what BLM said in 1980 when they made 6 this' finding, they found that,-and I quote, " Man's imprints ;
I 7 are substantially noticeable within the unit. Sightseeing i I
8~ is incumbered by many outside activities and interior 9 impacts of man. Natural screening contributes little to
.10 hide or enclose man and his contrasting influence.
11 Recreational opportunities are all incumbered by man's 12 development." These are all findings that BLM made in 1980
~ 13 and were not challenged at the time by anybody, and SUWA has l 14 not come forward with any information here to suggest that 15 BLM was wrong other than this broad, vague generalization.
16 SUWA has also suggested that Congress might i
17 approve this area as wilderness, but this area is not in the 18 bill that's before Congress for designation of wilderness 19 area in Utah, and in fact, the bill that is before Congress 20 has been introduced every year since 1989 and has not been
~~21. reported out of the committee yet.~~
Further, SUWA's own director has said'that its 8.5 23: million acre inventory that it just released this past 24 summer is but a starting point for negotiations with
'25 Congress in terms of what it believes to be designated as
!=
(.- ANN RILEY & ASSOCIATES, LTD.
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1065 1 wilderness.
2 So we believe when you take all these factors into 3 account that you have exactly what the court said in Babbit.
4 You have speculation based upon conjecture based upon 1
5 surmise. This is wholly too speculative an interest to '
i 6 support standing in this case. '
7 Now, in the reply, SUWA does refer to a case, 8 Idaho Conservation League versus Mumma, which it claims 9 supports its position. That case, however, is unlike ours.
10 In that case, the plaintiff was challenging the agency 11 directly responsible for making the designation of i
12 wilderness area, the Forest Service in that case. i 13 Here, the agency responsible for making the i l
14 designation was BLM. They made that 18 years ago. It has r~s 15 never been challenged. As I said, under the Commission's
( )
16 Hydro Resources decision, this board should not revisit or 17 question BLM's decision.
18 JUDGE BOLLWERK: Putting aside the designation of 19 the wilderness, as a NEPA matter, don't they have an 20 interest whether this falls within the definition as the 21 statute has set it up or not in preserving the character of 22 this land in terms of an alternative whether it's 23 " wilderness" land under the statute?
24 Doesn't NEPA -- I mean, for instance, to draw an 25 analogy, we look at endangered species, but there are also
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1066 1 animals that aren't endangered species that nonetheless have
~~q. 2 to be considered as well. t~~
'- 3 MR. GAUKLEAR: Your Honor, they did not argue that l l
4 in their initial brief. You look at their initial pleading, 5 their interest as it was represented in that initial 6 pleading was preservation of this area to allow Congress 7 time to designate it as wilderness, and that lists the 8 interest that they asserted.
9 They have attempted to raise a new interest here 10 in claiming that they have an interest wholly apart from 11 Congress' designation to try to preserve this as a l 12 wilderness area, but they provided no legal basis for that 13 interest to say that they -- that that should be protected.
14 Moreover, you're talking about this area here, !
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15 it's two square miles, it's within a couple miles of i 16 Interstate 80, the main Pacific rail line. Roads are near 17 it, cross-by roads at two points, a road parallels it a half 18 mile to three-quarters of a mile away. They've set forth no 19 basis to support an interest, particularly here also where 20 the contacts that they try to have with this area are 21 insufficient.
22 They rely upon the affidavit of Dr. Caitlin to 23 provide their claimed contact with the area. In the second i
24 declaration of Dr. Caitlin, he refers to -- he says he i 25 frequently visits the area, but he doesn't define how often 73 ANN RILEY & ASSOCIATES, LTD.
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l 1067 1 frequent is. He doesn't define how often he has been there.
j )' 2 in the past. He doesn't define how long he stays there.
l .3 .That's too vague of a basis to provide them contact with
~~4 this area of land-to provide standing.~~
5 I would point the Board to the Houston Lighting &
6 Power case that we cite in our brief. In that case, the 7 Board found that the presence on about a monthly basis 8 within approximately 40 miles of a nuclear power plant for 9 fishing was insufficient to provide standing even though the 10 Commission normally has used a 50-mile radius or limit for a 11 nuclear power plant standing. ,
1 12 If you apply this logic here with this type of 13 statement that they have given, it would supply SUWA with 14 standing anywhere in the world. You have a situation here
() 15 where he has not stated how long he has been there, how.
16 often he has been there. He claims a bond with the land, l
17. .but the bond that he claims to the land may be no different 18 than the other 8.5 million acres that the SUWA seeks to have i 19 claimed as a wilderness area in the State of Utah.
20 The cases that SUWA cites are inapposite. The 21 Georgia Tech case referred to a person driving daily by a 22 plant.
23 The Virginia Electric Power case was a situation 24 ~ where the applicant there wanted immediate intervention, so 25 therefore the appeal board in the case, instead of sending I
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l 1068 1 it back to the licensing board, decided to rule in favor of l
[%/)- 2 intervention and get the proceeding going forward. i
\
3 Even there, the organization in that case had two I i
4 members who lived within the 50-mile radius, one of whom 5 happened to canoe close to the plant. So that case i think '
I 6 is also inapposite to what we have here.
7 The Commission's recent decision in PFS with 8 respect to Federated Tribes talked about the nature or 9 length of the visit and the bond. It referred to in that 10 decision the fact that the child would visit on occasion up i
11 to two weeks. As I have said, here, we have no indication '
12 of how long Dr. Caitlin visits this two-square-mile area of' 13 land.
I 14 In fact, if you look at the affidavit, the second l
(-~
(_,) 15 affidavit, he refers to the fact that other members of SUWA ,
l 16 visit the North Cedar Mountain areas on occasion -- days on 17 occasion. You know, they spend days there. He d .s not 18 specify with respect to himself that he spends days there.
19 The affidavit cannot support -- or the other members cannot 20 provide a basis here for standing because they have not 21 filed declarations to support SUWA's standing.
22 So we believe that SUWA has not met the test 23 required for standing. We think that the contact that they 24 claim is too vague and ambiguous, that the interests that l 25 they seek to protect are speculative, far too speculate, and e~
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l i
l i 1069 i
1 if standing were allowed in this situation here, SUWA would
/~T 2 be able to claim standing any place in the world as a 1 N~sl 3 practical matter, any place in Utah certainly, based upon )
i 4 similar type of vague assertions, and for that reason, we l
5 think that their intervention petition should oe dismissed. !
6 JUDGE BOLLWERK: All right. Anything further?
! 7 All right. Mr. Quintana.
8 MR. QUINTANA: Thank you, Your Honor.
9 First, directly on the other side of the Cedar 10 Mountains is the Envirocare low-level waste facility which 11 has a rail spur leading to it, if I remember correctly. I l
12 Second, the real motivation of SUWA, an l
13 organization I fully support in every other respect except i 14 this one, is they are adamantly opposed to nuclear power, i l (m) x.s 15 and if their members are closely examined, their opposition l 16 to nuclear power means that they are opposed to this 17 particular facility as proposed here.
l 18 Finally, it is very, very much resented in the 19 minority communities when white environmental groups decide 20 they know best what's in the best interest of those minority 21 groups, especially since these minority groups have made 22 extensive efforts, as we've discussed in previous hearings, 23 to meet with experts worldwide.
24 There will not be any impact on this area that 25 would be adverse to the wildlife and its natural l
f
[~h ANN RILEY & ASSOCIATES, LTD.
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i 1070 1 surroundings. It is not designated as wilderness and we are
() 2 3
adamantly opposed.to SUWA's intervention in this proceeding for the sole purpose of defeating this project because of 4 their. blatant knowledge of what's best for the Skull Valley 5 Goshutes and because of their blatant hatred of nuclear 6- power.
7 JUDGE'BOLLWERK: Mr. Turk?
8 MS. MARCO: Actually, I'm --
9 JUDGE BOLLWERK: I'm sorry. Ms. Marco.
10 MS. MARCO: -- going to deliver the argument.
11 The staff opposes SUWA's intervention petition for 12- failure to satisfy the requirements for late-filed i 13 petitions, for not demonstrating that it has standing as a 14 matter of right, and for not demonstrating that it should be f%
() 15 allowed to participate as a matter of discretion.
16 On Tuesday, SUWA responded to the staff's and 17 applicant's response to its petition and addressed several 18 areas where the staff at least said the petition was 19 deficient. Well, the staff has reviewed SUWA's response; 20 however, the staff continues to believe that SUWA has not 21 satisfied the various requirements for intervention.
22 First, I would like to address SUWA's assertion 23 that it has satisfied the standards for late-filed 24 petitions.
25 The first and most important factor in this l
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! 1071 1 inquiry is the good'cause for the lateness, and we in our
[ I
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, j 2 response stated.that SUWA had not demonstrated good.cause i 3 for filing its petition late because it did not say when it j L 4 first learned of the information needed to submit its !
5 contentions. Without this information, it was impossible )
6_ for SUWA to demonstrate that it had good cause. ;
I 7 If SUWA was aware of the information earlier, it !
l 8 could have been more vigilant regarding the application and j 9 regarding the submittal on August 28th which was then made 10 public on -- and put in the public document room in )
11 September.
12 It's interesting that the State says that they 13 didn't have information regarding the future submittal when 14 there's a letter in the docket on July 2nd from J. Silberg I
) 15 to the judges indicating that there would be this proposed 16 rail spur along the western side of Skull Valley beginning 17 from a point on the main railroad line approximately 15 18' miles west of Raleigh Junction as a primary option, and that 19 following this, there would be an amendment to the 20 application submitted by late summer and early fall.
21 At least the parties here would have this 22 information. This was made public. An entity that is ;
23 interested so much as SUWA had said in the land long before 24 'the rail spur, they would be aware of general large projects l 25 in the area, and it would seem to me that they would be i
ANN RILEY & ASSOCIATES, LTD.
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I
1072 1 aware of these kinds of things.
'~'i '2 So SUWA in its reply again has failed to state 3 when it had availability of this information, and it has not ,
)
4 demonstrated good cause for the lateness. However, if SUWA ;
5 had learned of the information and it was completely unaware i 6 of the information, six weeks, the staff considers, is not l
l 7 an overwhelmingly unreasonable time to file the intervention 8 and the two contentions, although because, as Mr. Gauklear 9 said, they are very -- there are just two contentions, this 10 factor does not, even if you were to-give it good cause, it 11 really doesn't amount to a high level of showing here.
12 SUWA has not shown any good cause regarding the 13 new information it contains in its contentions. They have 14 set forth new material and there's no discussion as to why
-( 15 that could not have been submitted earlier.
16 On balance, the other factors also weigh against 17 SUWA. Although (he other parties would not-be available to 18 protect SUWA's interest in this proceeding, SUWA could 19 protect its own interest by continuing its pursuit of 20 legislative goals.
21 Unlike the general public's access to the 22 political process, SUWA has shown success in at least having 23 its views aired before Congress, and as mentioned in the 24 staff's pleading and mentioned here, SUWA was able to 25- present its views before a Congressional subcommittee on the l ~} ANN RILEY & ASSOCIATES, LTD.
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i 1073 1 subject of wilderness designation in Utah.
/ 2 Now, SUWA asserts in its reply that the Board in 3 exactly the same. situation found that the State of Utah had 4 no other means to protect its interest. However, it's not 5 the exact same situation because unlike here, the State did 6 not assert any legislated interest with respect to its 7 contentions. They only set forth contentions relating to 8 the factual matters contained in the submittal, and there 9 was no information to suggest the State could protect its 10 interests elsewhere.
11 Thus, the first of there two factors weighs in 12 SUWA's favor, although the second doesn't. These two 13 factors, however, are accorded the least weight of the whole 14 set.
[)
%)
15 Regarding the extent to which SUWA's participation 16 would lead to the development of a sound record, SUWA's 17 petition in this regard was deficient. SUWA did not 18 identify who its experts were and didn't summarize their 19 testimony.
20 SUWA set forth the declaration of Dr. Caitlin. He 21 was an individual'who participated in the land reinventory, 22 and SUWA also asserted other unnamed individual experts 23 would assist them. This Board rejected a similar showing 24 from the State of Utah earlier when it submitted an 25 affidavit of a forestry manager and asserted various unnamed O ANN RILEY & ASSOCIATES, LTD.
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1074 1 people.
2 SUWA's reply does not adequately correct this
()}
\_
3 deficiency. SUWA lists three people, but it doesn't 4 identify what these people would testify to beyond what is 5 mentioned in Contention A -- forget Contention B --
6 Contention A itself. SUWA again refers to the declaration 7 o'f Dr. Caitlin, but he doesn't address what he would say in 8 support of the contention beyond his overall assertion 9 SUWA lists its legal director, but for the first 10 two matters that she would testify to, legal expertise in 11 general is not sufficient to make a showing on this factor.
12 It is difficult to see also how a person with a legal 13 background would be able to assist in determining impacts of 14 the rail spur on the wilderness character of the land.
,I s i 15 Also, she also says she's going to discuss the topic of R.)
16 understanding SUNA's organizational mandate, but it's hard 17 to see how this will aid in the development of a sound 18 record.
19 Finally, SUWA sets forth Allison Jones, and what 20 she plans to say is repeated almost verbatim in the 21 contention, and there's nothing that -- there's nothing to 22 expand upon to show how these matters would be developed and 23 how this would assist in the sound record.
24 Also, I'll just mention again that none of these 25 experts say how they'll address alternatives, which is the (N
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Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034
l l l l l i 1075 )
t l 1 subject of Contention B.
L 2 Thus, the information provided by S'JWA regarding
)
l 3 these experts is even less than what the State said in its l
l 4 submittal, and we don't have any information about how they l 5 will address the matters actually relevant to the 6 contentions.
i 7 Finally, SUWA's -- we agree that SUWA's l
8 participation would not delay the proceeding, at least not 9 so as to affect this factor, but SUWA has raised several 10 issues regarding the wilderness character of the land and 11 the wilderness designation, and none of the other parties 12 have raised these matters. In fact, all of the low rail 13 contentions have been rejected, that if -- there are no --
14 there are no contentions relating to the rail spur, so any
() 15 16 contention that does is going to expand the issues in the proceeding at least that far.
17 Now, SUWA states that the issues in the 18 contentions that it. set forth are similar to the issues 19 concerning its standing, but the issues to be litigated, of 20 course, at the hearing will not be covering standing, it 21 will be concerning the contentions. So this -- SUWA's 22 assertion here really doesn't help it in this regard.
23 On the balance, all the factors, it does not 1
24 appear that SUWA has met the late-filed showing, and its l 25 petition should be rejected on this basis alone.
l-ANN RILEY & ASSOCIATES, LTD.
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l 1076 1 Next I would like to get into SUWA's assertion l-[~'} 2 it's established standing as a matter of right. The staff v
3 has three concerns. We think that-SUWA has not met the 4 standard for three reasons.
l 5 First, SUWA does not show that it would suffer a 6 personal harm, and second, SUWA has not set forth an injury 7 in fact that is concrete or palpable, and third, SUWA does 8 not show that it's likely -- that the injury is likely to be 9 redressed by a favorable decision in the proceeding.
10 In applying the criteria, whether Petitioner has I 11 met this requirement, it's important to keep in mind exactly 12 what the Petitioner is defining its injury in fact, because 13- based on what they say the injury in fact is, that's how you 14 assess all three items: the injury in fact, traceability
() 15 and redressability.
16 In its petition, SUWA defined its injury as the-17 threat of the low rail spur on the wilderness character of 18 the North Cedar Mountains and the threat that the area would 19 be disqualified for wilderness designation, the last part of 20 that being the ultimate end of its injury as it's set forth.
21 SUWA's stated injury was not sufficient to support 22 standing because, first of all, SUWA does not show how it as 23 an entity would be personally injured. The Supreme Court 24 said in Sierra Club versus Morton that a mere interest ir 25 the problem is not sufficient. You would have to show tha' l
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1077 1 you were actually among the injured, and SUWA didn't do 2 chis.
)
3 In its reply, SUWA takes issue with the staff's 4 assertion and complains that no organization would ever be 5 able to meet this -- anything more than what SUWA has 6 already done here. But the Supreme Court recognized the 7i difficulty with this. In Lujan versus Defenders of Wild 8 Life, the Supreme Court said that yes, we know that it's 9 substantially more difficult to show this kind of 10 third-party injury, but nevertheless, the factors have to be 11 met.
12 SUWA claims it's distinguished from the' Sierra 13 t Club. SUWA states that it relies on its members' use of the 14 land and also its own intense and longstanding involvement.
() 15 16 But these are the same -- well, as far as members' use of land, I will get into Dr. Caitlin -- it's essentially what 17 the applicant has suggested -- but with regard to the
! 18 intense and longstanding involvement in the area, this is l
19 the same interest that was advanced by the Sierra Club in i l 20 the Sierra Club versus Morton and it was rejected by the 21 Supreme Court.
22 The Sierra Club said that it had a special 23 interest in conservation and it said that one of its 24 principal purposes was to protect and conserve the natural l
25 resources of the Sierra Nevada mountains. Therefore, the I
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1078 1 general interest advanced by the Sierra Club is similar to l [d\ 2 3
what SUWA has here.
Now, regarding Dr. Caitlin, SUWA did not 4 demonstrate injury in fact through its member, and Dr.
5 Caitlin submitted a declaration that talked about the 6 reinventory process, talked about wilderness designation, 7 members' activities, and his past activities in the North 8 Cedar Mountains. He did not demonstrate a concrete, ongoing 9 connection and presence at the location of the proposed 10 action, so that he could not show that the injury would 11 actually affect him personally.
12 His new declaration states that he has developed a 13 bond with the land which he will continue to cultivate in 14 the future. He says: I frequently enjoyed and will in the
()- 15 future with some frequency enjoy hiking and other 16- activities. This assertion is deficient because Dr. Caitlin l
17 gives no indication of the frequency or duration of the '
18 visits or explains what his future plans are for visiting
-19 the area.
20 In Lujan, the Supreme Court said that an intent to 21 return to the place where you once were is not sufficient 22 for standing. The Court said that such someday intentions I 23 without description of concrete plans or, indeed, any ,
24 specification of when the someday will take place do not 25 support a finding of actual injury. l
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l 1079 1 SUWA cites the Commission's Georgia Tech case, but
(N y
2 even in Georgia Tech, the Petitioner drove daily by the 3 reactor, the operative word being " daily." The Commission, 4 based on that, could presume that the Petitioner frequented 5 that area on an ongoing, continual basis.
6 SUWA also cites the 1979 Appeal Board North Anna 7 decision where a canoer was found to have standing. Now, 8 the Commission in PFS has recently stated that the length of 9 the contact as well as the nature that establish a bond with l
10 the land. And the staff does not take issue with the nature 1
11 of Dr. Caitlin's involvement with the land. He doesn't 12 show, however, like we're saying, a current connection to 13 the location of the proposed action, which is required.
14 Therefore, the Board could find on this factor alone that pi
~~15 SUWA has not demonstrated the standing to intervene.~~
%.)
16 One of the things that the staff also said in our 17 response was that Dr. Caitlin did not say that he authorized 18 SUWA to represent him in the proceeding, but we see from the l 19 reply that he has done this and we no longer have this 20 objection. We're satisfied with what was said in that 21 regard.
22 Now I would~like to discuss the staff's concern 23 that they have not raised an issue -- an injury that is 24 concrete.
25 SUWA's injury as it was presented related to the
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l 1080 1 legal status of the BLM land and its wilderness character, ,
i
/~ 2 and SUWA needs to state, at least regarding wilderness l l Nh) ,
3 character -- I'll get into the legal status of BLM later, l 4- but let's separate -- let's take.it with regard to injury.
5 They do not say exactly what their injury is.
1 1
6 Wilderness character is a generalized term subject to a l
7 number of interpretations, and SUWA does not show how its ,
-8 intended behavior would be injured as a direct or indirect j L' 9 result of the action. l 10 The Commission has recognized that concrete l 11 injuries in environmental cases can occur when you allege j 12 adverse health effects, loss of aesthetic enjoyment, and 13 diminished property values for those who frequent the area. !
14 The Commission addresses these typical injuries j
() 15 16 again in its October Yankee Atomic decision and SUWA's claim that a harm to the wilderness character does not relate to 17 an injury that is sufficiently concrete for standing.
18 In its reply, SUWA argues that its injury is 19 concrete. It relies on the 9th Circuit's Mumma decision.
20 SUWA asserts that the Conservation League's interest in 21 Mumma was less concrete than that of SUWA, but of course the 22 inquiry-is the concreteness of the injury, not the interest, 23 and I think that may be a source of confusion.
24 In Mumma, the challenged action was the Forest 25 Service plan, and it didn't authorize specific development i
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[ 1081 1 proposal. The Mumma court found that the future harm was 2 the concrete effects at the project level that will occur,
l'\~)D 3 the effects of future development. The Mumma court did not 4 rest its finding of injury in fact on a more particular harm 5' exactly because the actual development could not be 6 ascertained and specifically -- and was unknowable. So the L 7 court sta

ed that because no development has yet to be 8 authorized, the plaintiffs cannot provide any more detail 9 than they have.
10 Well, here PFS submitted -- submittal contains a 11 description of the specific action, the specific place where 12 that action will take place, and unlike the Petitioners in 13 Mumma, there is no excuse for SUWA not to have provided a 14 more concrete' showing of injury.
() 15 Finally, regarding the injury that the land will 16 lose its eligibility to be designated as wilderness, this 17 also is not sufficiently concrete. SUWA needs to assert 18 some future attendant harm, which it didn't do. Even the 19 Mumma court recognized that.
20 So for these reasons, SUWA has not set forth a 21 concrete injury required to demonstrate injury in fact.
22 JUDGE BOLLWERK: Certainly if you look at their 23 affidavit, Mr. Caitlin's affidavit, or Dr. Caitlin's i
24 affidavit, I mean, he mentions health, recreation,
- 25 ' scientific, spiritual, educational, aesthetic. I mean, he's l
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1 1082 -
1 clearly, at least in terms of saying it, touched all the bases.
2 But your point is that he hasn't shown enough --
3 MS. MARCO: I look to the injury where they have 4 pled the injury, and they had set forth the injury not even 5 in the first -- in the initial petition, they did not say 6 it.
7 JUDGE BOLLWERK: All right. I'm talking about his 8 second affidavit.
9 MS. MARCO: The second affidavit.
)
10 JUDGE BOLLWERK: Yes.
11 MS. MARCO: But even still, that wasn't set forth 12 as the injury. They didn't base their causation on that.
13 They did not show their chain of causation that would end at 14 that injury. It's deficient in that regard. Further, he (n
v
~~15 hasn't met that individual personal showing.~~
16 JUDGE BOLLWERK: Because of the problem with 17 frequency?
18 MS. MARCO: Yes.
19 JUDGE BOLLWERK: I mean, he basically says he does 20 it frequently, but he doesn't say --
21 MS. MARCO: When or how long, yes.
22 JUDGE BOLLWERK: He hasn't given you specific 23 dates, he hasn't mentioned -- I don't know -- once a week, 24 once -- I don't know -- once every two weeks --
25 MS. MARCO: Correct.
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l l 1083 l
l 1 JUDGE BOLLWERK: -- whatever, ,
2 MS. MARCO: Yes.
3 JUDGE LAM: How specific does it have to be, in 4 your mind?.
5 MS. MARCO: It's a blend. It depends on how much 6 time you're going to be there, plus how often, and it really 7 -- it's a factor of the two. It doesn't require a whole 8 lot, I don't believe, but it does require at least a 9 showing.
10 He has to -- the problem really is he hasn't.shown ,
11 specific facts. It's just more of a general assertion, just 12 a plain assertion without anything more to support it.
13 Can I continue?
14 JUDGE BOLLWERK: Sure. Yes. -
(g 25- MS. MARCO: All right. Also, SUWA does not
( j 16 explain in either its petition or its reply why construction 17 of the rail spur would cause the North Cedar Mountains, !
18 which is, of course, a large -- several-thousand-acre area, 19 to be ineligible for inclusion in the Wilderness Act beyond 20 just saying that it would. So for these reasons, it hasn't 12 1 demonstrated an injury in fact. .
22 On causation, the staff agreed that they had set l 23 forth causation, but that was related to the injury.that l 24 they had set forth in their petition. SUWA has not set )
25 forth causation regarding any other asserted injury, l [T
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1084 1 including the harm to the wilderness character of the land.
Regarding redressability, SUWA didn't demonstrate (V) 2 3 that a favorable decision would likely redress its injury, 4 at least as that injury pertains to the failure of the land 5 to be designated as wilderness. And even if they were to 6 complete that in, say, future development, they have not 7 shown how redressability would be met there. Other 8 entities, like the BLM or any BLM permittee, could construct 9 a larger, more invasive project regardless of the outcome of 10 this proceeding.
11 For these reasons, redressability has not been 12 ' met. Even.in Mumma, the court quoted Sierra Club versus
~13 Watt, stating that the intervening event must not be only a 14 cause, but the only cause of the injury. And because SUWA A
15- has not demonstrated injury in fact or redressability, it t%)d 16 should not --
17 MS, WALKER: Excuse me. Can you repeat about your 18 last minute? I missed it. The audio went wild.
19 MS. MARCO: Oh.
20 JUDGE BOLLWERK: Can you give us some idea of what 21 the last thing you heard was?
22 MS. MARCO: Probably redressability.
23 MS. WALKER: She was talking about Idaho 24 Conservation League or Mumma, and some -- I can't say j 25 exactly where it went out, but something -- just the last ANN RILEY & ASSOCIATES, LTD.
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\J 2 MS. MARCO: Okay.
l 3 MS. WALKER: I got the partlabout causation'with
]
4; . regard.to. wilderness' character. )
)
5~ MS. MARCO: Okay, t-MS. WALKER:. And then after that.
15-L
~.7. MSMARCO:
. All right. 'Sorry.
'8- MS. WALKER: Thank you.
9 MS. MARCO: That was towards the end. Right. I ~
, i 10 ~just mentioned that even in Mumma, that court recognized -- '
~~11' that' court quoted Sierra' Club versus Watt and realized that~~
'12 the intervening event must not only'be a cause, but must be 13 the only cause, and I.just wanted to explain that Mumma 14 would also agree on redressability, and.that's how I ended.
I) n 15' I.just want to mention on discretionary, 7 really j
-'16 don't have to get a whole-lot into discretionary because the 117 factors that I would feed in have not been changed. Nothing 18 .in the reply, nothing in-the argument here would change what I-would plug in and I would still get the same outcome, that
' 19_ '
J20 discretionary intervention has not been satisfied.
21 That's all I have.
~~22. JUDGE BOLLWERK: Ms. Walker, it is 1:30 here, it~~
- :23 is 11:30 there. .How long do you think you need to respond 24 to these arguments?
25 [ Pause.]
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1086 l
~~1. JUDGE BOLLWERK: That's feedback in a major way.~~
't' \ 2 [ Laughter.]
d 3 MS. WALKER: Are we okay? Can you hear me?
4 JUDGE BOLLWERK: Yes, I can. Are you hearing us 5 all right?
i 6 MS. WALKER: Okay. How long? I would say 20 7 minutes.
8 JUDGE BOLLWERK: Okay. Probably it would be a 9 good idea then for us to break at this point, because if we 10 start in on the contentions, we are probably looking at 11 least another 45 minutes to an hour, I would say.
12 Let me put it this way, I think the board can take 13 that, but I am not going to impose that on you all. It is 14 1:30, so if you feel a need to take a luncheon break, we f~~
i 15 probably ought to do that now if we are going to do it.
16 MR. SILBERG: We wouldn't mind.
~
We wouldn't 17 oppose continuing to proceed. We don't want to impose that 18 on folks whose stomachs may not be as cast iron as ours, l 19 JUDGE BOLLWERK: This is not -- speak your mind 20 here, I am not trying to impose this one way or the other.
21 You tell me what you want to do.
1 22 MR. SILBERG: I think we would just as soon go 23 ahead, unless someone objects 24- MS. MARCO: I would really like to eat, Your 25 Honor.
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L 1087 1 JUDGE BOLLWERK: All right. That is a perfectly l
(')
,j 2 . acceptable answer. All right.
3 Ms. Walker, then, why don't we say -- it is now 4 11:30 there, and you all, I know -- you all have to, I know, 5 leave the building to go somewhere else to get something-to
.6 eat. Would an hour be enough for a lunch break, to come 7 back and start at what would be 12:30 there?
8 MS. WALKER: I could do it in less.
9 JUDGE BOLLWERK: We1 can certainly do it in less l l
10 here. Again, I am concerned about you all having enough of 11 a break where you can get someplace to get something for !
12 lunch.
13 MR. QUINTANA: Well, how much total time do you l 14 think the entire hearing will take?
15 JUDGE BOLLWERK: I suspect we are probably looking 16 at another hour, I am going to anticipate, given the 17 arguments that have gone on already.
18 MR. QUINTANA: Is there any way everybody could 19 just : suck it up.and go straight for an hour and call it a .
20 day?
21 JUDGE BOLLWERK: We just had that discussion here, 22 and someone -- the problem is it is 1:30 here. I recognize 23 it is only 11: 30 there. I think we can probably shorten the 24 lunch break if that is something people want to do. There 25 is a cafeteria in this building. I think 45 minutes i
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L 1088 1 probably folks could get something to eat and come back.
^
f
( 2 But the problem there in Utah is you have to leave that 3 building, that's my concern.
4 MS. WALKER: Right. But we have access to food.
( 5 JUDGE BOLLWERK: All right.
t 6 MS. WALKER: That's fine. We can do it fast.
7 JUDGE BOLLWERK: Do you want 45 minutes, half an 8 hour9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />? You tell me what it is going to take.
9 MS. WALKER: Half an hour.
10 JUDGE BOLLWERK: Half an hour? Half an hour?
11 MS. MARCO: Yes.
12 JUDGE BOLLWERK: All right. Why don't we then --
13 it is now, as I say, 1:30 here, 11:30 there. Why don't we t ,s 14 convene at 2:00 here and that would be noontime there. Is
\-s/ 15 that acceptable, is that okay with the technician that we 16 are dealing with as well? I want to make sure -- all right?
17 MS. WALKER: Right. I forgot about your food.
18 MS. CHANCELLOR: Judge Bollwerk.
19 JUDGE BOLLWERK: Yes.
20 MS, CHANCELLOR: I may have to leave, and if I do, J I
21 Ms. Cowan will take over for the state. )
22 JUDGE BOLLWERK: All right. All right. Very l l
l 23 good. ]
l 24 Let's say then we will take a break now, reconvene 25 at 2:00, noontime in Utah, and we will see you at that l i
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a' 1089
~~1. point.~~
D-
[d 2-3 conferen
[Whereupon, at 1:29 p.m., the prehearing "7as recessed, to reconvene at 2:00 p.m., this L 4 same day.]
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l L 1090 1 AFTERNOON SESSION L- ('"N) 2 [2 :04 p.m.) -
3 JUDGE BOLLWERK: We are back to begin the 4 afternoon session, or the late afternoon session, and Ms.
5 Walker.is going to be making her presentation in a second.
6 Mr. Turk would like to say something before we 7 start, though.
8 MR. TURK: Yes, Your Honor. I just wanted to 9 introduce to the board a new attorney with the staff, who 10 has not been actively working on this proceeding, but has 11 been observing today. And I would just like to introduce 12 her to you and ask her to identify herself at this time.
13 JUDGE BOLLWERK: Okay.
14 MS. MARTZ: .My name is Stephanie Martz.
15 JUDGE BOLLWERK: Ms. Martz, we welcome you. You 16 have seen some good lawyering here I hope today.
17 MS, MARTZ: Yes, I have.
18 JUDGE BOLLWERK: It is something you can take with 19 you.
. :2 0 ' All right. Any questions from the board at this i
21 point before we -- I just had one, I had asked Mr. Gauklear I H22 a question, Ms. Marco, about the interest of the Intervenor, 23 or the Petitioner, irrespective -- or respective --
24 regardless of whether or not this land has been designated i 25 as wilderness land under the appropriate Act. I mean, I
l
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1091 1 arguably, under NEPA, it seems that they have some interest 2 in preservation of the land and the status, and whether it
[~')Y 3 has been defined or not under the statute as wilderness. I 4 just wondered if you had any comments on that.
5 Hold on one second. Let's see if we can get the 6 audio -- we have problems again, Utah, you are coming in 7 very hot, as it were. j l
8 [ Pause.] j 9 JUDGE BOLLWERK: All right. Ms. Marco.
10 MS. MARCO: Yes. We believe that SUWA has 11 demonstrated an interest that is within the zone of interest 12 of NEPA. We don't have any objection with that.
13 JUDGE BOLLWERK: 'So you have no problem with that l 14 argument or that assertion then? '
( ,s) 15 MS. MARCO: That's right. That is right.
16 JUDGE BOLLWERK: All right. Any other questions 17 from any board member?
18 [No response.]
19 JUDGE BOLLWERK: All right. Ms. Walker then, 20 please.
21 MS. WALKER: Thank you. I am going to try to 22 address the issues in sequence, but if I skip anything, I 23- hope the board will ask me to clarify any points.
24 With regard to PFS's arguments, the first argument 25 they made was that we didn't need the late-filed petition
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i 1092 i factors, and one of the reasons they gave to that is because
~~2. at the scoping hearing, PFS indiccred that it was going to 3 try out this new alignment. The problem is that SUWA needed I~~
4 the exact alignment of the rail spur before it could 5 determine whether its interests were involved, otherwise, it 6- wouldn't have standing.
7 So perhaps SUWA would have been alerted to be on l 8 the lookout, but wouldn't have been aware that its interests 9 were in peril.
l 10 Also, this idea of Congress -- oops, I am skipping l 11 down, sorry. And then the other argument that PFS made was 12 that it wasn't published because it wasn't necessary, but I 13 am afraid that due process requirements trump any sort of 14 regulation. And in this case, because there was a l
j ) 15 substantial change in that amendment, that maybe publishing 16 would have been the best way to serve people's due process 17 requirements.
18 Okay. The next PFS argument was that there are 1
19 other means for SUWA to have its issues addressed. First is 20 comment on the draft EIS, but if I understand correctly, it 21 is the NRC position that, while the public'can comment on 22 the NR -- I mean on NEPA, that in order to be -- in order to 23 challenge a NEPA document in court, you have to be part of 24 the adjudication, meaning this proceeding. So, in other 25 words, while SUWA may be free to comment, that if they p ANN RILEY & ASSOCIATES, LTD.
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i 1
1093 l 1- eventually determine that the NEPA document was 2 insufficient, they wouldn't have any judicial remedy.
3 And then_this Congressional argument that the
~~4. staff makes as well. I think, first of all, they don't cite 5 any case law that anybody considers legislation an 6 alternative to an adjudication in terms of making sure your~~
~
7 interests are protected. And the other thing is, is that at 8 any time Congress could rule that this whole project was 9 invalid for whatever reason. They could declare the whole 10 place a monument and -- I guess not a monument, that is only 11 the President, but they could declare it a park and all 12 ' these issues would be addressed that way, and I really don't ,
1 13 see that as a practical alternative.
14 Now, the idea that SUWA may have legislation
() 15 pending, although currently the legislation doesn't cover !
16 the North Cedar Mountain wilderness area, it is too abstract 17 an idea to take the place of this proceeding where we have a
. 18 proposed project that has the potential to impact one of 19 these areas right now.
20 The next argument is that there is a different 21 basis for the state -- I am not sure I understand my own 22 notes, so I can't address that. I'm sorry.
23 The next comment -- I mean objection they brought 24 up, that we will unduly delay the proceedings here, but it 25 is actually the Applicant -- or admission or SUWA's petition O)
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1094 j a
L 1 would unduly delay the proceedings, but it is actually the
() 2 3
Applicant that has broadened the issues at this late date, not SUWA. It was the Applicant that decided that this was l
4 the alternative it wanted to pursue in terms of L l
.5 transportation and it did not have the exact alignment of i 6 the proposed rail corridor until relatively recently, and I i 7- don't think that potential Intervenors should be somehow '
-8 punished for.-- well, that is not the right word -- that 9 they should somehow suffer because the Applicant, who 10 apparently is free to amend their application at any time, ;
11 chose to do it when they did.
12 Okay. So I would suggest that PFS's arguments are
! 13 weak and'aren't sufficient to overcome SUWA's showing with 14 regard to those late-filed petition factors.
15 With regard to standing, PFS argued that, I I 16_ believe.that SUWA' stated its interest was solely to 17 designate the land as wilderness, and this is too 18 contingent, but, actually, they have maintained all along 19 that their interest is to protect the wilderness character 20 of the land, and as the board seems to be implying by its 1
21 questioning, that this is a-legitimate interest under NEPA l 22 and under the regulations of the NRC which require it to 23 look at the environmental impacts of its proposed projects.
24- We have called attention to this Idaho l 25 Conservation League case in which Plaintiffs, L
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1095 1
l environmentalists, had standing to challenge a decision by
('~] 2 the Forest Service not to designate an area as wilderness !
1
'O 3 and, based on the fact that that would open these areas for 4 development, and even though no development was proposed at 5 the time, and even though any development would have to go 6 under NEPA review, the Court determined that Plaintiffs in I l
7 that case had standing on the basis of imminent injury.
8 PFS also brings up this notion that BLM rejected a 9 wilderness designation a long time ago and, therefore, the 10 chances that BLM will change its mind with regard to this 11 particular area is -- I don't know, negligent, if at all.
12 But Babbitt -- or State of Utah vs. Babbitt tells us that 13 under FLMPA Section, I think it is 201, that BLM has an 14 ongoing duty to reinventory all the public lands under its I-si 15 jurisdiction for characteristics such as wilderness i
G 16 character, and that this can happen at any time and, 17 therefore, the idea that BLM could designate this area, or 18 at least determine that it possessed wilderness character is 19 not out of the question, particularly given the changes of 20 administration.
21 But if you look at SUWA's interest in this case as 22 preserving the wilderness character of the area, that 23 doesn't really matter, because, again, the point is to 24 preserve it in its current state.
25 Now, this -- it seems to me that there is a bit of e' ANN RILEY & ASSOCIATES, LTD.
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l 1096 i
1 misunderstanding, too, what this means to preserve something 2 in its current state. It is not meaningless. I mentioned l [s\_-} !
3 that the no action alternative in any NEPA review, the
)
4 baseline would be the preserved state. In State of Utah vs.
5 Babbitt, they suggest the Bureau -- I mean the Department of 6 Interior, or the Secretary of the Interior actually had a l l
7 different attitude towards areas that were roadless than 8 those that weren't. Now, even though that issue wasn't 9 solved, at least there is the implication that the agencies l 10 managing roadless areas take a different view towards them, l 11 so that it is not meaningless to be in a pristine state, to 12 be roadless, but not to be designated wilderness. l i
13 This is also true with regard to the Forest j
)
14 Service. There was a recent moratorium on road building in )
<~ !
( )s s-15 roadless areas. In Utah -- I mean in the Idaho Conservation l 16 League case, there was also reference to the fact that the l 17 Forest Service there would take a different look in its NEPA 18 review of roadless areas and that could the reason for 19 refusing development in a particular area, the fact that it 20 was roadless, even though it had been rejected for 21 wilderness designation. So this isn't a meaningless notion.
22 So that the reason I am saying that is to 23 underline the fact that SUWA has an interest in maintaining 24 the status quo in the roadless area, whether or not Congress 25 eventually acts or whether or not BLM acts. And it is also l
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1097 1 interesting to note that BLM has the proposal right now, the
( 2 wilderness study areas -- and I have to explain that,
'v )
3 because PFS, I think, doesn't quite get it. A wilderness 4 study area is all the areas that the agency has determined 5 to be of wilderness value or proper for wilderness 6 designation.
l 7 Currently, in Utah, I think there's -- I can't 8 remember, it is 2.1 million acres, I think, of wilderness 9 study areas on BLM land. So, there is no difference between 10 wilderness and wilderness study areas from that point of 11 view of the agency. Then when Congress designates the areas 12 as wilderness, they become wilderness. So in the interim, ;
13 they are managed as though they are wilderness areas.
14 But the point is, is that even though the BLM had (q) 15 only identified 2.1 or 3.2, I can't remember, million acres 16 of wilderness study areas, the bill in front of Congress is 17 5.7. So just because the BLM doesn't recognize it as 18 wilderness doesn't mean that it won't be designated as 19 wilderness, so that's another issue that PFS brought up. j l
20 Okay. Then, there is also the point that BLM was 21 wrong in their designation. PFS alluded to the fact that we 22 haven't provided enough evidence that this area does have 23 wilderness character, but I think that, you know, certainly, 24 for the pleading stage, we have done that sufficiently. We 1 l 25 have said that SUWA was very careful, SUWA and the Utah l
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l 1098 l' Wilderness Coalition was very careful about what criteria o
I lj} :2 you used. They used -- they erred on the side of keeping
~~. V '~~
3 areas out that didn't qualify as wilderness and they had all 4 kinds of oversight and were very careful in determining that 5- the area possessed wi2' ,as character.
I
~~6 Then PFS said that, unlike in Idaho Conservation, L 7' or what.the' staff is calling MUMMA, Plaintiff was~~
~~8 challenging the agency directly. So in that case, it was i~~
9 the Plaintitfs were challenging the Forest Service, who 10 makes the ultimate recommendation to Congress with regard to 11 wilderness area. And SUWA is challenging the NRC. But, of 12 course, the NRC has direct authority to allow the 13 construction of a proposed rail spur, which is the proposal 14 that threatens the wilderness character of the study -- I 15- mean of the roadless area.
(
16 Okay. Another issue that PFS seems to confuse.
17 They made reference -- oh, I think, actually, this was --
'18 I'm sorry. Mr. Quintana said that there is -- and maybe PFS 19 as well -- there is a site on the other side of the mountain 20 that is ugly or intrudes upon the wilderness values or 21 something like -- some implication to that effect.
22 Now, wilderness doesn't have-to be in the middle 23- of-nowhere. For example, in Salt Lake City, within less --
24 within a mile of, you know, a major urban center, we have 25 some significant wilderness areas and Forest Service land
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1099 1- 'that do overlook the city. So just the fact that things are 2 down there'doesn't mean that a place disqualifies as 3 wilderness, '
4 But then the flip side of that is, why do we
.5 object to the proposed rail spur? It is going to cross area 6 that has been considered roadless. It is going to cross a 7 _section of it. The next question is, well, you know, why.
8 don't you just'let that section go and move the wilderness 9 ~ boundary back a little? The problem with that approach is 10 that, you.know, any project in any wilderness area, unless 11 it_went right down the middle of it, but then you could 12 divide the wilderness area otherwise, wouldn't be 13 objectionable because it is just an incremental step.
14 And the other important thing to realize is that
() 15' 16.
incremental steps have a~ lot of impact. When you put a right of way or an access point through a wilderness area, 17 that brings in more traffic. That brings in more use and 18 then the roadbed can expand, people'can make little 19 off-shoots and things like that. So the idea that somehow 120 that a project just crosses a corner of it, you know, in a 21 sense, you say, well, you know, it is not a huge impact.
22 But you have -- because all projects, almost all of them 23 occur incrementally, you have to make a stand with regard to 24 those incremental steps. j i
25 Okay. Now, moving on to standing. I wanted to O ANN RILEY & ASSOCIATES, LTD.
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1100 1 point out that in Luian, which is the case that had to do
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2 with the Secretary of Interior dealing with the Endangered 3 Species Act and its implications abroad, so the issues there i
4 were off the United States soil. The question, you know, !
1 5 the core question, the affidavits, you know, that Plaintiffs 6 presented in that case -- well, I guess it was Defendants 7 actually -- well, Plaintiffs, I'm sorry -- or Appellees or 8 Appellants or whatever -- but, anyway, the environmental 9 organizational provided, you know, they weren't concrete l 10 enough.
11 But it is important to note that the court, that 12 at this case -- it was the final stages of the case, and 13 that the court noted at the pleading stage, which is where 14 we are -- General factual allegations and inquiry resulting o
i 15
[O from Defendants' conduct may suffice, for on motion to 16 dismiss, we presume, which is essentially what is going on 17 here, that general allegations embrace those specific facts 18 that are necessary to support the claim.
19 So, in other words, what they saying is that at 20 the pleading stage, the standard is not quite as strict as 21 at the summary -- motion for summary judgment or at the 22
~~trial stage. And so that Dr. Catlin said frequently, but 23 didn't say the next time he was going to go to the Cedar 24 Mountains, would suffice at this stage.~~
25 Further, in Lujan you did not have the inventory
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1 1101l 1 and the participation of SUWA in the inventory, including
/'] 2 sending its members out to inventory this area, going around
'%)
3 the whole circumference of the area, looking at all the 4 impacts, spending a lot of time on the maps and the aerial 5 photographs of the area, going back to review it again, 6 going back again, including it on a proposal. All these 7 sorts of things certainly go to show the interest of SUWA 8 and SUWA members in the inventory and the particular piece 9 of land at issue, and also the bond between those 10 individuals and the land, which is going to be emphasized by 11 this care they have taken to define the boundaries and move 12 to protect it.
13 There was a suggestion that SUWA, if it were 14 granted wilderness -- I mean standing in this case, could
() 15 16 have standing with regard to any wilderness area that it has defined in its reinventory, and I would say that that it 17 true, that SUWA should have standing with regard -- I mean, 18 certainly, they would have to submit the affidavits and 19 whatnot, but they have an interest and they have shown an 20 interest, and they would have members that have gone there 21 with regard to every single parce) et land within the 22 inventory. And so that the idea that somehow that would 23 show that SUWA can't have standing in this situaticn is I 24 don't think a valid argument.
25 Another thing is about the overnight business.
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1102 1 How many days has Dr. Catlin been there? Now, this area is f\
d 2 not that far away. And when you are talking about spending 3 the night in the areas, typically, the way these things are 4 approached is, if you don't want to spend the night, you go 5 back home. And just because the area is close by and people 6 haven't spent the night there doesn't mean -- or at least 7 that Dr. Catlin hasn't spent the night there, doesn't mean 8 that he somehow is-excluded from having an interest in the 9 area. Just because of the nature of it, it is close, 10 relatively close to Salt Lake and he doesn't choose to spend 11 the night there. But if he goes back for day visits, I 12 don't see that that necessarily means that he has a lesser <
13 interest as a result. i 14 So I think I have addressed all of PFS's
() 11 5 arguments. And, again, if the board has anything that they 16 think that I need to address, if they could bring it to my l l 17 attention, I would appreciate it. I l 18 JUDGE BOLLWERK: This is Judge Bollwerk. I have a 19 question about your survey argument that you just made. It I 20 strikes me that perhaps the idea that you have done a survey l
[ 21 certainly shows at least your interest in the proceeding is
! 22 less academic, for instance, that the group of individuals 23 that we had that tried to intervene earlier, that basically
- 24 were a group.of very distinguished Nobel scientists and l
L 25 . atomic people with an interest in nuclear power, but,
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1103 '
1 nonetheless, really didn't have -- I guess hadn't really
('}
L 2 done anything concrete in this proceeding.
3 But can simply going out and making a survey be 4 enough to, you know, give you an interest in the proceeding?
5 I mean'that gives you pretty broad latitude to go any place l 6 you want, put down some scientific increments, declare it a 7 wilderness and you can intervene in proceedings. I guess I 8 am a little concerned about that argument.
9 MS. WALKER: Right. I don't think alone that that 10 would be enough. But we are taking the accumulation of all 11 these considerations. It is the concern for the land in the 12 first place that led these people to go out and inventory 13 it. And then the fact that they did inventory it, which 14 means they visited it several times, and then they want to
) 15 protect it, and, also, that they will visit it in the 16 future. All those taken together are enough to establish 17 standing.
18 And Dr. Catlin did say that he will go there with l
19 some frequency in the future. And although he didn't say 20 when exactly, he certainly can. And, you know, at a later 21 stage in the proceeding, maybe that would be appropriate, 22 but at the preliminary stages, where we are just at the 23 pleadings, then, you know, I don't think that he is required l 24 to make a more specific indication of when exactly he will i
25 go back.
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i 1104 1 But, yeah, so inventory alone, I don't think,-but 2 when you take that in combination with-all the other 3 . interests and' visits that SUWA has alleged, I think it is 4 enough.
5 JUDGE BOLLWERK: All right. One other question.
6 .There are obviously -- I mean there are different ways for i
7 an urganization to intervene. One is by itself or on its !
I 8 own. One is as the representative of an individual, and I l l
9' take it you are doing both, or are you only acting as Dr. '
10 Catlin's representative? I mean Mr. Catlin's 11 representative. Excuse me.
12 MS. WALKER: We are definitely trying to do both.
13 JUDGE BOLLWERK: All right.
14 MS. WALKER: So we are trying to meet both l 15 requirements.
16 JUDGE BOLLWERK: All right. Anything from other 17 board members?
18 I interrupted you, If you had something else you 19 were going to say, go ahead, I
20 MS. WALKER: No, that's it. '
21 JUDGE BOLLWERK: All right. You have nothing 22 further to sar on the' subject then of the intervention ;
s 23- petition in terms of lateness or anything? ;
24 - MS. WALKER: Oh, no, no. I'm sorry. I just l 25 finished with PFS, now I will move on to the staff. l
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1 1105
~~1. JUDGE BOLLWERK: I thought there was something 2 .else. Go ahead. '~~
3 MS.LWALKER: The Staff's arguments -- they talked !
4 about a letter between -- I am not sure I understood this I
L 5 completely, but a letter between the State and the Applicant 6 talking about the expectation on this railroad spur. I 7 would suggest that letter isn't public.
8 They also talked about -- I'm sorry, this goes 9 with -- we are back to the beginning again. .W e are talking l 10 about whether SUWA had good cause to file late. I want to 11 ' stress again that SUWA needed the exact alignment on the !
l 12 rail spur before it could determine whether its interests.
l 13 would be impacted or not.
14 The Staff made reference to a suggestion that the
( 15 new alignment would come out in late Summer, late Fall --
1 16 early Fall, late. Fall, something like that, and it did come 17 out in the Fall and SUWA acted as promptly as possible.
18 The Staff I believe thinks that SUWA has yet to .
19 tell them when they learned about the alignment, and I did 20 put that in the reply. When I talked to them, they weren't 21 quite sure, but they said the first full week in October, 22 which is just a little bit after some of the Intervenors l 23 that didn't learn about it immediately learned about it so !
l
, 24 that -- 1 25- JUDGE BOLLWERK: I'd like to say something. I l'
l
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-1 think implication of what I took from that -- this is Judge i
)
2 Bollwerk -- wa3 that they somehow~ learned of it from you
[ JL because you1found out about it as'one of the representatives ,
E . -
l 4- of-OGD.
i l
5 Is,that true or not'or does it make'any L
! 6 d ifference?'
l l
7 MS. WALKER: Did they learn of it from me?
JUDGE BOLLWERK: Well, because you were OGD's 9 representative,'you became aware of it -- I guess as part of .
10' a prehearing conference that we had -- but was that just a 11 fortuity or is that -- maybe it doesn't make any difference. f 12- I am just trying to sort of,.I have a factual question, I ,
13 guess.
14 MS. WALKER: No,.I don't think it makes any I 15- difference because --
i %.h i 16 JUDGE BOLLWERK: Other than the time element --
17 MS.. WALKER: -- I don't think I am obligated to go 18 .around.and drum up, you know, to let people know how actions 19 of an agency-are going to implicate their interests, but I 20 did -- the'way it happened was I was discussing what I had 21 done at work today with a friend and that is how the whole 22 issue came up, so I didn't even do it on purpose really.
g 23. JUDGE BOLLWERK: Well --
l 24 MS. WALKER: I don't think it matters.
25 , JUDGE BOLLWERK: -- let me say, this is a question Y- <
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1 of timing, not a question of culpability in any way or
(~- 2 whatever you might want to -- but obviously they found out 3 about it.from you, that you knew-about it as a result of l
l 4 this prehearing conference, that was my understanding, so t
i j 5 that begins to put more of a timeframe onto this, but you. l 6 said six weeks --
l 7 MS. WALKER: Right, and see --
'8 JUDGE BOLLWERK: -- that's my --
l 9 MS. WALKER: I'm sorry.
10 JUDGE BOLLWERK: That is approximately the 11 beginning of-October so it looks like these dates are
~~12. 'approximately consistent. I don't see anything here that 13 is --~~
l l 14 MR. SILBERG: I believe SUWA's pleadings says the
~'N 15 second week in October is when they learned about it in
[V 16
! their reply pleading.
17 JUDGE BOLLWERK: All right. l l 18 MS. WALKER: Yes, so I went back to them and asked 19 then when they found out, and it's an approximation because ;
l 20 they don't remember for sure.
i 21 JUDGE BOLLWERK: All right.
i 22 MS. WALKER: But I think that six weeks is 23 reasonable, particularly because, you know, we are getting l 24 sort of -- and I understand it has to be this way, but we 25 are sort of getting hammered on both ends, you know, we 4
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1108 l l
l' didn't do enough, we didn't'do it fast enough, or we're l
-2 doing too much because we are going to broaden the
)
~~3 proceedings.~~
4 But.given that, you know, they weren't involved 5 before and they had to find an attorney and get permission ,
l 6 to be involved in thisLproceeding and all this kind of l
l l 7 stuff, I think six weeks is a very reasonable amount of 8 time, and get their experts in~line and see what they are l
9 - going to testify and of. course they can't afford experts so !
l 10 they-have to be free. '
t
-11 All those kind of things are difficult.
j 12 I think the next argument that the Staff brought I i
13 up is again this legislative issue that somehow SUWA'-can ;
14 make sure everything is fine by -- or make sure its i
I I 15 interests are protected by appealing to Congress. You know, Q
u 16 SUWA doesn't have that avenue open to it any.more than l
17 anybody else does.
!' 18 I really don't think that that is the sort of 19 thing that anyone had in mind when they said any other means
( 2
.0 for protecting their interests.
'21 It is my understanding that that would be some 22 other proceeding.
23 The sound record -- the issue which the Staff j: 24 brought up -- is a lot like'the issues that we are going to l
i 25 deal with with regard to contentions but they said that with ,
1 i
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l l 1109 1- regard to Contention B, which is basically our argument that
! J/' 2' they don't consider a full range of alternatives under NEPA, l \~
' ~
3 I think that is basically a legal argument and we don't need I L 4 a whole lot of facts other than the alternatives that they i
5 have considered don't represent a full range of '
6 alternatives, and I think that we have-done that. The road 7- and the rail spur right next to it, as the State has pointed 8 out, are basically unworkable, so we have the "no action" 9 alternative and then the current alignment, and it seems to 10 me within that range of alternatives an alternative that an l 11 alignment that didn't impact this area would be reasonable l
12 to study, 13 In Dr. Catlin's affidavit he puts that forward as 14 a reasonable alternative, so because Contention B is
]
%J
) 15 essentially a legal issue and you are allowed to point out j 16 legal deficiencies in the application, then I don't know i
17 that a whole lot of facts are necessary to support that. j 18 With regard to the first contention, I guess we'll 19 address that later in terms of -- and this goes to the l
20 question of would we add to the scope -- well, not the scope l
21 but the information before the Board -- so they could make a 22- well-reasoned decision, and again I say that the Board and L 23 NRC has an obligation to study potential environmental l 24 impacts, and this is one of the issues, preserving the L
25 wilderness character or the character of this are that j ANN RILEY & ASSOCIATES, LTD.
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I 1110 i
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1 should be addressed.
2 So the Staff's arguments with regard to standing, 3 they take issue with our statement that an interim goal is
! 4 to preserve the area in its current state.
5 They somehow imply that maybe since we didn't say 6 it in our initial petition that we can't say it in our 7 reply, but that is just clarification and I apologize if it 8 wasn't clear, but certainly an interim goal that is an end 9 in and of itself, because I think that if you ask SUWA, you 10 know, if an area can't be declared wilderness, if it is 11 managed like wilderness or it the wilderness characteristics 12 of it are somehow preserved, is that good enough? I am not 13 sure it would be the ultimate goal, but it is certainly one 14 of their goals, to have sort of de facto, as they say in the
( L15 State of Utah vs. Babbitt, wilderness designation or
\_-
16 wilderness management or just preserving the land in and of 17 itself is a legitimate goal that SUWA definitely has. l l
18 Moving on to Sierra Club vs. Morton, I think if 19 you take a look at that case, it doesn't mean -- it is not 20 really telling in the situation because there they had not 21 alleged any specific use of the land at issue or specific 22 harm, and we have done that.
23 Again, I want to point out that Lujan, you know, 24 it's speaking of when and how long these visits are going to 25 be, is with regard to a proceeding that is further along i
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1 than the pleading stage, which-is the case here, and that we
("Sg '2 can-certainly get Dr. Catlin to say when he plans to go back
. V l 3 there, in subsequent stages, if that is necessary.
4 I think the Staff took issue with our statement of ;
5 the injury, saying that our notion of wilderness character 6 was too. generalized, I think.
7 I am not sure I understood this argument, but we 8 look the characteristics of wilderness from the Wilderness I
9 Act itself and pointed out that each of those i 10 characteristics, the opportunities for solitude, the 11 imprints of man substantially unnoticeable, the biological 12 status of the area, and those sorts of issues we addressed 13 each of those in sequence and said how the proposed rail 4 14 spur would impact those, so I think that we are actually
-[~).
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15 being quite specific with regard to the injury and with 16 regard to what wilderness character means. i 17 I think that that is similar to the injury found 18 in Idaho Conservation League, which was even more attenuated 19 than the impact we have here.
20 The Staff also said that we didn't personalize 21 injury but I believe in Dr. Catlin's first and second 22 affidavits that he said essentially that if these values are 23 harmed, if these wilderness values are harmed, I will be l
24 harmed, and that is because I won't be able to partake in i 25 the activities that I had there before, because of the i
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L 1112 1 impacts of the proposed rail spur and in addition, that I I
2 have a deep bond with the land and this bond would be l f 3 inhibited by the development.
l 4 In addition, it is clear that SUWA's legitimate l 5 .
goal, that the area be preserved in its current state, would !
6 be harmed by the development, because then it would no 7 longer be the case and back to those arguments about -- that 8 being in a wilderness or being a roadless area in and of i 9 itself actually offers some protection and is not a i
L 10 meaningless notion.
11 'I think the Staff's other arguments were that how 12 does construction of this particular project impact the j 13 area.
l
! '14 Again I think we address that in the affidavit and ,
i l
() 15 16 this idea that incremental development is something to be avoided as well, and that if you took the position that 17 unless a particular development harmed the whole area, then 18 you didn't have standing, then essentially you would never l
19 be able to oppose any development because developmental i L 20 impacts are incremental, almost necessary -- not always but 21- almost necessarily.
l 22 Then causation -- the Staff argued that we failed l 23 to show causation, and I believe this means that the i
! 24 agency's decision, NRC decision, will cause impacts --
25 please correct me if I am wrong about this argument -- so in l 1 4
I
! l l
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1113 l' other words, we failed to show that what the NRC does will 2-
'cause the harm. The harm is that the area will be developed O' 3 and will no longer possess its wilderness character and 4 clearly the NRC's approval of the low rail spur'will cause 5 that to happen. '
6 They also said that -- the Staff also suggested I
~
7 that it must be the only cause, and I am not quite'sure if 8 this means that subsequently other development could ruin 9 the wilderness area or'not,-but I doubt that that is a ;
1 10 legitimate claim because in any case future management of 11- land, future management decisions can impact the land use, l
)
12 and, you know, Congress can also, if we are going to 13 consider wilderness designation sort of the end-all, 14 Congress can also change its mind and un-designate an area L 15 " wilderness" and so if the idea that Congress could do that 16 could defeat standing then no one would have standing with 17 regard to wilderness anywhere.
18 So I hope I have addressed all the issues, all the 19 arguments, and if there are any I left out that the Board 20 thinks are particularly convincing, I would like to address 21 them.
12 2 JUDGE BOLLMERK: Thank you.
23 Any questions from either of the Board members?
24 Yes?
25 JUDGE LAM: Ms. Walker, are you saying your l
l f
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1114 1 organization's interests or Dr. Catlin's interests will be i i
T 2 harmed if the rail is build with or without the wilderness
./
3 designation? '
j 4 MS. WALKER: I'm sorry, would you repeat the 5 question?
6 JUDGE LAM: Can you hear me better?
7 MS. WALKER: Yes, thank you.
8 JUDGE LAM: Yes? The question is are you saying l 9 your organizational interests or Dr. Catlin's interests will 10 be harmed by the rail with or without the designation of I
11 wilderness area?
12 MS. WALKER: Yes. I 13 JUDGE LAM: With or without? Either?
14 MS. WALKER: So they have two goals. The ultimate I
() 15 goal is to have the area designated as wilderness.
16 The construction of the proposed rail will 17 disqualify the area for designation as wilderness, but in o 18 the interim before Congress acts, SUWA has an interest in t
19 preserving the area in its current state to preserve the l
20 opportunity for Congress to act on it, but also to preserve j 21 the land in its wilderness state as a goal in and of itself. l 22 JUDGE LAM: But assuming Congress never acts --
23 assuming -- would your interests still be harmed? !
i 24 MS. WALKER: Yes, because SUWA has an interest in 25 seeing that these lands have wilderness character.
l Q
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1 R 1115 l-l 1 JUDGE LAM: Thank you.
/ .
2 JUDGE-BOLLWERK: Anything else from the Board?
i 3 [No response.] !
'4 JUDGE BOLLWERK: Mr. Gauklear, I see you moving 5 toward the microphone.
l 6 MR. GAUKLEAR: Yes. I would like to make a few l
7 points.
8 JUDGE BOLLWERK: And you know the one rule we have 9 here is that if you say something, then Ma. Walker obviously 10 gets a chance to respond.
11 MR. GAUKLEAR: I understand that completely.
12 JUDGE BOLLWERK: All right. )
13 MR. GAUKLEAR: I would just like to make a few 14- points -- )
/~%
.( ) 15 JUDGE BOLLWERK: Ms. Walker, can you hear him all l 16 right?
17 MS. WALKER: I think so.
18 JUDGE BOLLWERK: Let's go ahead and see what 19 happens here.
20 MR. GAUKLEAR: I would like to make several points 21 First, I would like to pick up on the last point 22 that she made, which is that construction of the rail spur 23 will disqualify this land for designation as wilderness 24 area.
25 I want the Board to be clear that the land we are l - ( ANN RILEY & ASSOCIATES, LTD.
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1116 1 talking about is no more than about two square miles, not
./~T 2 the entire Cedar Mountains wilderness areas that they claim !
.) -3 should be designated as wilderness. That is the area that is
\
j 4 at issue in this case.
5 I would like to also point out that they say they 6 needed to know the precise location of the rail spur to know 7 whether they had any claims or not. I would point the Board 8 to assertions in their pleadings where they say that the 9 rail spur would have a deep intrusion into the North Cedar 10 Mountains area, therefore they claim at least something 11 beyond the precise location.
12 They talk about facts in terms of what they would 13 present at and the factor three, okay? -- the third factor ;
i 14 for late filing, and they claim they don't need to present '
15 any facts with respect to alternatives,-but the alternatives
[%)T 16 still need to be credible alternatives, and they have 17 presented no facts with respect to credible alternatives.
18 With respect to the Mumma case or Idaho 19 Conservation League, in that case the Forest Service was an 20 integral part of the process of designating wilderness area 21 and that is how come -- a major reason why the court in that a
22 case found standing.
23- Also, I would like to point out that the Eighth 24 Circuit in Sierra Club v. Forest Service, 28 F. 3d, 753, 25 rejected the line of cases the Ninth Circ ~ ; relies upon and r~% ANN RILEY & ASSOCIATES, LTD.
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I 1117 l I
1 rejected it including citing the Mumma case.
l _
l-(~S i
2 They talk about I missed the point in terms of N_))
3 saying that BLM'is always under a continuous duty.to ;
l 4 re-evaluate its lands. I recognize that BLM has that duty, l
)
-5 but the point is that whether they will re-evaluate this 6 portion of land is very speculative and SUWA has not.come 7 forward with any information to show that'it is not 1
o 8 speculative. I 9 In a similar vein, they claim that because BLM I
10 does not designate this land as wilderness does not mean 11 that Congress can't do it but earlier in her argument she,
, 12 herself, said that what Congress does is too abstract to I
13 -really have any meaning, and I would say that it applies to j 14 that as well,~whether the Congress will designate land as
( 15 wilderness is abstract.
}
16 They raise again what I think is another issue or 17 new issue where they talk about preserving wilderness in its 18 current state is not meaningless. That either is a -- I 19 think it's a new issue but it may be very close to what they 20 said in the reply brief, but the' point is that under the t
21 statue, under the statutory scheme, Congress has given 22 agencies like BLM to make the determination of whether areas 23 should be preserved as wilderness or the same 24 characteristics pending what Congress does. In other words, l
'25 when BLM decides that something should be stated as a l
l l
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1118 wilderness area, it then puts in use restrictions in terms T
1 of precluding growth in the area, et cetera, so BLM is the
(~N 2 i
3 agency or the entity that is given the legal right or legal 4 interest for that interest and SUWA keeps on mentioning that 5 interest but it applies to no basis that gives it a legally 6 protected interest in that area.
7 They refer to NEPA but NEPA isn't an environmental "
L 8 impact in terms of looking at impacts and they keep on L
9 coming back and saying it's our preservation of the l 10 wilderness -- that is our interest and that is given to BLM 11 under the statute that we are talking about here.
12 They talk about -- they claim that they have given 13 enough facts for Dr.'Catlin's standing here, at least at 14 this stage of the proceeding. As a practical matter, once 15 standing is decided, that will be it, and moreover the cases 16 that we cited I believe are dismissal cases. They were all 17 cases at the stage of dismissal, the Limerick case, the 18 South Texas case, and there the Boards required more than j 19 just vague generalization of frequent use. Matter of 20 fact -- and they looked to specific times, how often.
21 She also in the same vein says that the issue is ;
22 not whether he says out there over the night, but issue is 23 has he identified sufficient contract with that area in line 24 with these cases and we submit that he has not.
25 I don't believe that I have anything else. Thank l
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1119 1 you.
/"'N 2 -JUDGE BOLLWERK:
(), 3 MS. MARCO:
All right.
I have a question.
4' JUDGE BOLLWERK: Surely.
5 MS. MARCO: I just --
I have a question. I want 6 to make sure I responded directly to the question that you 7 asked, actually, Judge Bollwerk. l 8 JUDGE BOLLWERK: Okay.
9 MS. MARCO: Did you ask me whether I thought there 10 interest was within the zone to be protected under NEPA?
11 Was that the question?
12 JUDGE BOLLWERK: Well, I mean as my discussion !
13 with Mr. Gauklear I think I guess the -- what I am trying to 14 expressuis that there is arguably an idea that just because
()
V 15 this land, regardless of whether it is designated as 16 wilderness area, it is land that there may be alternatives 17 to that it should be protected for one reason or another, 18 whether it is designated or not.
19 A route might go this way or that way just to 20 retain the character of this land, it somehow should be 21 protected, just like you vould protect animals arcuably 22 whether they were on the endangered species list or not, 23 depending on what the impact on them was.
24 That was my question. Is that an interest 25 .regardless of whether the land is designated as wilderness j-%s ANN RILEY & ASSOCIATES, LTD.
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1120 l
l 1 area under the statute.
2 MS. MARCO: Okay. Interest, yes. Injury, no --
{
3 because they haven't satisfied the injury to them. That is <
4~ my position.
5 JUDGE LAM: Did you say interest, yes, injury, no?
6 MS. MARCO: Right.
7 JUDGE BOLLWERK: Okay.
8 MS. MARCO: All right, yes. I would like to go 9 ahead and respond to points that have not been addressed yet )
1 10 that SUWA raises.
11 First of all, the letter was made public actually, y 12 It was on the docket for this proceeding, just to clarify l 13 that.
14 Regarding Lujan, speaking about when and how long 'j e r> '
Lf ) 15 these contacts need to be made, we do believe that is I 16 applicable here, and in fact the Commission does frequently 17 refer to Lujan in its standing decisions, so we do think l
18 that that is appropriate. I I
19 With respect to whether she can get Dr. Catlin to 20 say when he goes back and where, that was exactly what kind 21 of thing was missing from the filings and what we would have l 22 liked to have seen for this demonstration.
23 Injury -- the issues about whether it is the 24 wilderness character -- the problem is that we do not know,
~~25 we don't have an injury to SUWA, and that is really where it l~~
l
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1121 l 1- comes down to. That is an interest, and we need to know i-I
[')
2 what'about.that interest is concrete, relates to the land !
3 and is something that is being impacted and how is that !
4- being impacted, and that was not set forth as the injury, 5 and that is a deficiency.
6 Then in regard to causation, what I was trying to 7 express hopefully with the causation was that.theLinjury
'8 that they had -- they had their chain of causation. They 9- had set that out in their initial petition, but that was 10 based cn1 the injury that was defined and if you are going to 11' start changing in the injury around, then that chain of 12 causation has to be met.
13 You need -- all three items need to be met in 14 order to have standing. You need the injury in fact. You ;
() 11 5 need the causation for that injury and you need 16 redressability, and so if they are going to come up with 17 different injuries they have to plug that back into the 18 equation to get standing.
19 Then with respect to the case I mentioned, which 20- was cited in Mumma by the Mumma court, what we are really 21 saying, what they were really saying was that the 22 intervening cause has to be -- and they called it a "but 23 for" cause, that development would not go forward but for 24 the action. In the case of'Mumma, the court recognized that 25 there would be no possible development on this land if that fs ANN RILEY & ASSOCIATES, LTD.
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1122
.1 action, which was. wilderness designation, if that --
,V
[) 2 non-wilderness designation, if that was revoked or somehow l 3 taken back, redressed, so that there would be wilderness 1
4 . designation, there would be no development at all because 5 BLM was before that court and we don't have BLM before this l
l 6 -Board, so they could go ahead and do whatever they wanted 7 later.
8 JUDGE BOLLWERK: Well, they couldn't --
9 MS. MARCO: Wait -- we have Mr. Turk --
10 JUDGE BOLLWERK: All right, although if this Board l 11 were to say don't build a railroad there, they are not going ]
12 to build a railroad there. l 13 MS. MARCO: That's correct.
I 14 JUDGE BOLLWERK: All right. I
\ -15 MS, MARCO: That is correct but then the problem NJ 16 with that is ths ; -- I'm sorry. That is correct but then 17 -you would have to take that injury, which is -- what is the 18 end result, what is the injury then you are looking for that 19 redressability? It's building the railroad? How would that 20 be redress -- you may have redressability but you need to 21 have it all for the injury that you are talking about.
22 JUDGE BOLLWERK: All right. Mr. Turk, did you l
23 want to say something?
24 MR. TURK: I want to come back to that question 25 you had asked about,.whether they have an interest apart ;
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1 from the wilderness designation.
/' S[ 2 I am not sure that we were clear in the answer. .
'~
'3 Any member of the public that likes nature would have that i 4 same kind of an interest, all right? Any member of the 5 public who likes to see land unaffected by human beings, !
6 unpopulated, has the same generalized interest, but unless 7 they can show that they somehow are injured, they wouldn't 8 be able to make out a case for standing and I think that is ,
9 the point we want to make.
10 If you put aside the Wilderness Act designation 11 questions and SUWA comes in and says we like land that has a
=12 wilderness character, well that may be true of many people.
13 .That doesn't give them standing. Although they are $
14 interested in'a generalized sense in preserving land in that !
( } 15 nature, that does not'give them standing, j 16 JUDGE BOLLWERK: Anything further from any of the 17 Board members on that point?
18 JUDGE LAM: Oh, yes. Mr. Turk; in their 19 supplemental filing they mentioned something about a loss of 20 enj e t.nment . Would you consider that injury?
21 MR. TURK: They haven't shown an injury. Even if 22 they say you put this rail line through here, that land will 23 no longer have that remote quality that we like so much. In
'24 the absence of any showing that they themselves have a 25 specific injury, they won't be able to establish standing I
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1124 1 and they have not shown that. They haven't given me the
. 2- specifics to show that they have anything more than a k
3 generalized interest in preserving that character of the l t
4 land.
5 MS. CURRAN: The State would like to make some i
6 comments on this part.
7 JUDGE BOLLWERK: All right.
8 MS. CURRAN: Whenever it is appropriate.
9 MR. QUINTANA: As would counsel for Skull Valley.
10 JUDGE BOLLWERK: All right. Let's see. Do you '
i 11 think we can wrap this up, this part of it, in about 15 l
12 minutes? That is probably being very generous but I think 4
13 we need to do that so we can move on.
14 Why don't you go ahead Ms. Curran? t
) 15 MS. CURRAN: Okay -- just a few.
16 With' respect to that letter that was written back l 17 in June or July, I think we wanted to just point out that 18 that letter did not give the precise location of the spur.
19 It also, although it was a matter of public record, it 20 wasn't something that SUWA was going to run into, and the 21 standard practice by the NRC to let members of the public l
22 -what is going on is to put a notice in the Federal Register !
1 23 and that wasn't done in this case, and I think that is the i
-24 thing that should be focused on here.
25 A second point is I believe at some point Mr. j l ,
~~n. 1 I~~
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1125 1 Gauklear said that SUWA's intervention is relatively 2 straightforward and-not complex and therefore it could have
' (~5 I 3 been prepared earlier. That argument would also support the 4 simplicity of the issue with respect to broadening the 5 record. I would just like to point out that fact.
6 He also suggested that the wilderness issue may 7 lead to additional RAIs by the NRC Staff. It is the NRC l i
8 that is the lead agency in this case, not the Bureau of Land !
i 9 Management, so of course it would be the NRC's
]
10 responsibility to evaluate the impacts of this rail spur on 11 the wilderness area, taking whatever comments from the BLM, 12 and so we think that if this does lead to additional 13 questions by the NRC they should be asked and this thing 14 should be, the issues should be brought for public hearing.
15 That was the State's comments.
' f )T
, .L 16 JUDGE BOLLWERK: All right, well, now that i 17 question's come up, Mr. Turk, is NRC the lead agency here?
18 MR. TURK: Yes.
19 JUDGE BOLLWERK: So it is not BLM. Well, to the 20 degree they need a right-of-way they don't have to go to BLM !
21 or BLM doesn't have to prepare an Environmental Impact I .22 Statement? .
23 MR. TURK: NRC is the lead agency for purposes of i
! 24 granting a license and allowing the use of a rail spur to 25 get to the PFS site.
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1126 1 JUDGE BOLLWERK: Okay.
2 MR. TURK:
[\(
l Over whatever land is designated. BLM l
l 3 has to make its own determination as to whether or not they
~~l. 4 will grant the right-of-way. NRC is not involved in that l~~
5 determination, so we are lead in the action for your i 6 purposes, but BLM will have made its own determination, 7 which we will then simply rely upon if we ultimately decide '
8 that, yes, we'll allow you to use the rail spur and here is 9 our EIS that evaluates the impacts of use of that rail spur
]
10 and anything else associated with this facility.
l 11 JUDGE KLINE: I understand from that then, correct l 12 me if I'm wrong, that it is the NRC final Environmental 13 Impact Statement that will perform the alternatives analysis l 14 on the routing of the railroad and not BLM final 15 Environmental Impact Statement? Is that correct?
l 16 MR. TURK: It's correct, but I should point out 17 two things. One, BLM will be a -- I believe it is a 18 participating agency --
19 JUDGE KLINE: Okay, yes.
20 MR. TURK: -- either commenting or participating.
21 They will be involved in the preparation of the EIS at least 22 through the review and comment process, and also in their l
23 own determination as to whether or not to give a l
l 24 right-of-way.
25 I am sure they must go through some independent I
r -
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1 1127 ;
1 --evaluation of their own. ,
2 JUDGE KLINE: Perhaps they do, but I am asking
(
3 specifically with respect-to the Environmental Impact 4 Statement, that it will be an NRC Environmental Impact 5 Statement, not a.BLM statement, is that correct?
6 MR. TURK: For purposes of your decision --
i 7 JUDGE KLINE: Yes.
8 MR. TURK: --Lyes. You will be looking-at the NRC 9 document. !
10 JUDGE KLINE: Right, okay. ,
I 11 MR. TURK: I want to make a response to Ms. Curran 12 on one other point and I am sorry we are getting down into 13 back and forths here. i 14 The Staff does not typical notice in the Federal
() 15 16 Register revisions to applications. We do notice revisions to licenses which come in through application, but_while an 17 application is still in the pre-licensing stage, we do not 18- send out notices about all the changes that come in to that 19 application that is under review.
20 JUDGE BOLLWERK: All right. Mr. Quintana, you 21 said you wanted to say sor.ething?
22 MR. QUINTANA: Just very briefly, first --
23 JUDGE BOLLWERK: And let me just point out that, 24 Ms. Walker, you will have a chance to wrap up.
25 MR. QUINTANA: -- so that we have a proper ANN RILEY & ASSOCIATES, LTD.
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1128 l 1 understanding of the land that we are talking about, this is
/~)
N,/
2 alkali soil. "here is very, very little vegetation. There l 3 is a great deal of-sagebrush. That's one.
l-l 4 Two, it's located right next to Dugway Proving 5 . Grounds, which tested radiological, chemical, biological and 6 nerve agents, so we are not talking about an area like the l
7 Redwood Forest. We are not talking about like Muir Woods or 8 Yellowstone National Park or Deseret Peak or the wilderness l 9 areas which are already in existence. 1 l
10 Everybody is familiar with this area and it would 11 have been designated as a wilderness area if it was somehow l 12 unique in character or pristine, so please take that into I
13 account. '
14 Second, the Skull Valley Goshutes tried to have 1
( 15 the assistance of Scientists for Secure Waste Storage 16 because their expertise, being of Nobel Laureate calibre, we 17 believed was necessary for assistance with these 18 proceedings, and for reasons which are well documented, they 19 were not allowed in. However, we can call them as experts.
1 20 If there are issues of magnitude of which the opponents of l 21 this project are keenly interested in, they certainly have 22 the right to call their experts and their experts could 23 certainly include Dr. Catlin and whoever else is out there 24 to try to save the Skull Valley Goshutes from themselves, so 25 I don't think in the interests of fairness, given that Nobel 1'
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1129 1 Laureates were not allowed in to support this -- well, to
(~'))
2 explain their interest in this project, and they were not
'w.
3 allowed standing, I think jt Jt as a matter of sheer judicial 4 fairness the opponents should not be allowed to cry 3 " environmental racism" through the likes of Dr. Catlin and 6 others.
7 JUDGE BOLLWERK: All right. Ms. Walker then, why 8 don't you wrap up? If you can do so in about five minutes, i 9 that would be great. i 10 MS, WALKER: Is there any issue in particular that 1
11 you would like me to address? I l
12 JUDGE BOLLWERK: It is really entirely up to you.
13 You have heard a number of things from the Staff, from PFS.
14 Ms. Curran had some comments, Mr. Quintana. If you have
() 15
~~C anything you want to say on any of that, this is the time to do so. If not, we will move on. '~~
17 MS. WALKER: Okay. I guess one important thing is 18 again Lujan. Somebody -- I can't remember -- Staff or PFS 19 said that most of the cases decided were motion to dismiss 20 cases, but Lujan, which is the one that states you have to 21 say when and that is relied upon by the Staff in terms of 22 establishing interest specifically says, "In response to a 23 summary judgment motion, however, the plaintiff can no 24 longer rest on mere allegations, but must set forth by 25 affidavit or other evidence specific facts."
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1130 1 So Lujan was a summary judgment case that is a
/ 2 case being relied upon, so I think it is relevant to this 1-v 3 case that that be understood and that we are at the pleading 4 stage.
5 The NRC itself has relied upon a test specific to 6 the pleading stage of the proceeding.
7 Also with regard to again Sierra Club vs. -- is it 1
8 Sierra Club vs. Morton? If you take a look at that case, 9 what the court found important, and this goes to PFS' 10 argument that our injury is not substantial enough or that 11 our use isn't substantial enough, but in that case they 12 didn't allege that they used the area at all and it was some 13 generalized interest, and I do believe that if you relied on 14 PFS's characterization of what is required for standing that I~ 15 no environmental organization would have standing with k))
16 regard to any environmental harms because Sierra Club vs.
17 Morton and Lujan do not rule out the possibility that 18 environmental organizations can have standing, just that 19 they have to be specifically involved in the area because 20 they want -- the purpose of that test is to have the people 21' who are most able to sort of protect those interests in the 22 proceeding, not just anybody, and I would submit that SUWA 23 is in the best position to protect the interests at issue 24 here.
25 I don't think that our experts would be called by pg ANN RILEY & ASSOCIATES, LTD.
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F, 1131 1
t- )
I' . . . .
anybody else. .Unfortunately, on.this issue of wilderness, 1
1; L ;
(f 2 the State tends to be on the other side and SUWA and the 3 ~ State I doubt are_in a position.to sort of share presenting '
4 evidence to the Board even in this proceeding because of the 5 political reality of it. '
6 '
The State does'not recognize the roadless area l
~~l. 7: there.~~
i
~~8. Mr. Quintana brought up the fact that the area may ;~~
9 not be all that beautiful. I am not sure that for the 1 10 purposes of. standing that we_can go-into issues such as how l
!. 'll beautiful is it -- you know, how impacted are the areas j
! 12 around it. Deseret Peak is closer to Dugway Proving Ground 13 that this~ area is, and Deseret Peak is a wilderness area.
l .
14 I really don't think that for the purposes of '
() 15. standing you can sort of look to facts like that at this 16 stage -- you know, how beautiful is it. I think that Dr.
17 Catlin alleged that it possesses wilderness character, that 18 .these will.be impacted in a' number of specific ways.like he
.19 did, that that is sufficient at this stage.
20 Now remember, we are not going to the merits but t
21= is this enough for standing. That relates to an argument
.22 ~ PFS made in terms of I think it was again what is the area 23 really like, so I think that that is all I wanted to say at 24 -this point.
i
'25 JUDGE BOLLWERK: All right. At this point then l'
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1132 l 1 let's' turn to the contentions.
2 There are two. I believe they are A and B.
( Is 3 that the way they are designated? Do you want to argue them 4 separately or do.you simply want to deal with them together?
! 5 MS. WALKER: Together is fine.
l '6 JUDGE BOLLWERK: All right, then why don't you go 7 ahead and present your argument. We will use basically the 8 same order of presentation as we did,before.
9 You are good to go, Ms. Walker.
10 MS. WALKER: Thank-you. The first contention 11 suggests that the ER is insufficient because it fails to 12 deal with the impacts on the wilderness character of the 13 North Cedar Mountain wilderness area, and I think in our 14 reply we set forth the specific limitations of the ER with 15 regard to impacts on recreation, impacts on solitude, E16 . impacts on ecosystem management.
17. They are listed there. I think we showed a l 18 fatailiarity with the application, at least with regard to 19 our issue, so in that way we differ from the Scientists for 20 Secure Waste.
l 21 I think that we-provided for this stage sufficient 22 information that will support what we have to say when you 23 look at what we are trying to say, that this area possesses 24 wilderness character, and that the proposed rail spur will i impact that. We have said, put forth experts that are going
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1133 1 to address those issues.
~s
( ) 2 Now because the issues are relatively simple I l
1 v 3 doesn't mean that they shouldn't be addressed, and I think 4 because they are relatively simple, it is not that hard to l
5 show and so we don't have lists and lists of things that 6 people are going to say because it is not a technical issue 7 really, so maybe the Staff is used to highly technical 8 issues where you have to have pages and pages of 9 descriptions as to what is going on, but I think that if you 10 look at what we are trying to show that we have presented 11 experts that are going to demonstrate what is at issue and 12 take up and contest the ER's coverage of wilderness 13 character and impacts of the railroad spur on that 14 character.
l fN 15 l
( ) With regard to contention 2, the alternatives --
16 again I think it is basically a legal argument. I think 17 that Dr. Catlin had proposed a reasonable alternative. That 18 is not to say that the alternative won't be ultimately 19 rejected, but it is worth looking at. It is worth 20 questioning whether another alignment at least or portion of 21 the alignment of the railroad spur wouldn't help preserve 22 the wilderness character of the area, so I eagerly await 23 what the Staff and PFS have to say to that.
24 JUDGE BOLLWERK: I would like to ask you one 25 question before we go to that.
l l
l
/')
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1 1134 1 The affidavit -- we are having a technical 2 problem.
v 3 [ Discussion off the record.]
4 JUDGE BOLLWERK: We are getting sor.e feedback or 5 sort of some computer noise here. I don't know if you all 6 are having the same thing?
7 MS. WALKER: Yes.
1 8 JUDGE BOLLWERK: All right. Well, maybe we will '
9 just go on then. It may be a problem with the line.
10 The question I had --
11 [ Pause.]
12 JUDGE BOLLWERK: That's better. The question I 13 had was the affidavit mentioned something about wetlands, 14 which is the first I'd heard that brought into this.
(-)
( 15 Can you tell me what that is about or what that 16 refers to?
17 MS. WALKER: Can you tell which affidavit?
18 JUDGE BOLLWERK: Sure. Let me -- I will give you 19 a paragraph number here, because the paragraph numbers may 20 have changed given this was done over e-mail.
21 MS. WALKER: Is this the first or second 22 affidavit?
23 JUDGE BOLLWERK: It's on paragraph 9. Paragraph 9 24 of the second affidavit, and it talks about the alternative 25 alignment, moving it, I guess, two miles to the east, and
! (}
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1135 1 then it says avoiding sensitive wetlands. And I guess I
() 2 3
wasn't -- that's the first I had heard of that, the designation of. wetlands, reference to wetlands.
4 MS. WALKER: What I mean by that is that -- what 5 is the name of the spring in the middle of the valley?
6 Horseshoe Spring. I would hate to see some alignment, and I 7 am sure SUWA would, too, as well, that ran right through the 8 middle of Horseshoe Spring.
9 JUDGE BOLLWERK: All right.
10 MS. WALKER: So, in other words, we are suggesting 11 an alignment that would avoid impacts on this roadless area 12 but not adversely impact something as sensitive as wetlands 13 like Horseshoe Springs.
14 JUDGE BOLLWERK: All right. But you weren't (Oj 15 suggesting with that, that the present alignment does go 16 near wetlands? That's what I -- I guess when I read that, I 17 thought that was what it was referring to.
18 MS. WALKER: No , I am sorry for the confusion. I 19 didn't mean that at all.
20- JUDGE BOLLWERK: All right. Okay. That clears it 21 up for me then.
22 Ms. Curran, I guess, if you would like -- since 23 you are supporting her position, if you have anything to 24 say?
25 MS. CURRAN: I don't have anything at the moment.
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l 1136
( 1 JUDGE BOLLWERK: Okay. Then Applicant, please.
,s (s- ) 2 MR. GAUKLEAR: Yes. SUWA, in this contention,
)
l 3- made three assertions. One was alleged failure to consider 4 the impacts of the rail spur on the wilderness character, or l 5 the potential wilderness designation of the area. l And the l 6 third was the assertion that the area should be preserved in 1
7 its current natural state until Congress has the opportunity 8 to act.
9 Particularly with respect to the last two, we have 10 addressed in our brief that those should be dismissed for 11 the same basis as we have talked about earlier, speculative 12 claims. Particularly the last one is one where they ask the 13 NRC basically to make this -- preserve this land for 14 wilderness pending Congress' designation and that, as we a
k ,) 15 have said, is a function of BLM; not the NRC.
16 With respect to the reply brief, they seem to 17 shift gears in the reply brief and focus on the alleged 18 deficiencies in the environmental report. In their original 19 contention, they only made vague assertions to the 20 environmental report such as the ER failed to analyze the 21 construction and operation of North Cedar Mountain -- the 22 impact of the construction and operation of the rail spur on 23 the North Cedar Mountains roadless area, or that it did not 24 adequately address the impacts on the ecology of the area.
25 Two or three very broad general sentences, no
[)
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l 1137 1 specific identification of deficiencies with respect to the
[V )- 2 analysis in the ER. No acknowledgement that we had 3 addressed these impacts in the ER. And, as we argued in our 4 brief, clearly, the contention as set forth does not meet 5 the standards for admissibility as this board has enunciated 6 in this case already.
7 In an attempt to overcome this deficiency, they 8 have come now forward with three pages of lawyerly argument 9 in their brief. Still, no facts to support. Moreover, to 10 the extent that these three pages could be construed as new 11 bases, they are late and must be rejected. Replies are not 12 the opportunity to provide new bases, it is the time to 13 provide clarification or explanation, and I would refer the 14 board to the CI case, the case involving CI, Perry Nuclear p
() ,
15 Power Plant, LBP-82-89, 16 NRC 1355.
16 Moreover, the Commission itself has specifically 17 stated that late-filed bases are subject to the same test as 18 for late-filed contentions, and that is the Yankee Atomic 19 case, CLI-96-7, 43 NRC 235.
20 SUWA has made no attempt here to show that the 21 five factors are satisfied with the new bases it attempts to 22 provide in its reply brief and, therefore, it should be 23 rejected on that basis alone.
24 Moreover, even if you go forward and look at what 25 they now put forth in the reply brief, they don't provide a
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1138
.1 factual basis to support the contention. For example, they ;
,~~
t j } .2 argue that we don't address noise as it applies to 3
recreationists and wildlife in the areas above the rail 4 spur. But we did identify in the ER the maximum noise 5
l levels that would occur at various distances from the rail I
'6 spur down wind. SUWA has not identified in its reply why 7 this is inadequate in terms of an analysis of impacts on 8 recreation users or wildlife in the area. They have 9 provided no basis for that. i l
10 SUWA acknowledges in the same vein that we do o
l 11 address visual impacts, but now they claim that we have 12 failed to address the impacts on the wild character of the !
~~13 foothills and peaks. That is purely an argument without~~
'14 basis. We address the visual impacts which we say that will
) 15 be seen from the top of the Cedar Mountain areas and from l
L 16 developed areas near I-80. There is clearly no -- we have 17 addressed it. Moreover, we noted that our use of the land, 18 the rail spur, will be in accordance with BLM visual 19 resource classification for that area. So we have addressed 20 visual impacts.
21 Similarly, they take issue with a statement in the 22 'ER that, because of low level recreation use, the low l
23 corridor rail line is not expected to be significant -- have 24 significant impact to the scenic environment, and SUWA 25 claims that this improperly assumes that visual impacts are !
l J
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1139 1 measured.by number of people who view them, but, again, they
() 2 - provide no basis in law or fact for that' statement, o show 3 why our visual analysis is inadequate.
4 They claim that we provide no analysis of impacts 5 on recreational users as opposed to people who drive 6 vehicles off the road. But, again, we have discusced scenic 7 impacts, we have discussed noise impacts, and SUWA has come j 8 forward with no basis to say why our analysis of that is l
9 inadequate with respect to recreational users.
10 SUWA does acknowledge that the ER discusses 11 impacts on animal species, habitat, but they claim that our 1:2 mitigation techniques, we haven't provided sufficient basis 13 for mitigation techniques. We are going to do a survey 14 before construction within a half mile and move animals out iO l ( ,/ 15 of the area before construction. They claim we haven't 16 provided any basis why the .5 miles is sufficient. But they 17 have shown no basis why our .5 miles is not sufficient. We 18 have identified an area that we think is -- that we need to 19 take action on and we have done it, will do it, and they i 20 have come forward with no facts to show why what we propose l 21 to do is inadequate.
22 Similarly, SUWA claims that we don't analyze
23. maintenance impacts on species, but they provide no bases to L 24 come forward to show what type of maintenance impacts would 25 have impact on species. Moreover, they ignore the fact that O ANN RILEY & ASSOCIATES, LTD.
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1140
'l we are talking about maintenance on a 40 foot rail spur lN 2 which is going to be 155 acres for the entire 32 miles, and
%)
l 3 they have not shown how this will have an adverse impact, 4 not basis to show why this would have adverse impact on the ;
5 environment. i 6- In their reply, SUWA does -- also says that the ER 7 fails to address various needs, and they refer to needs to 1 8 preserve the roadless area, need for primitive areas to 9 preserve bio-diversity, the need to prevent habitat 10 fragmentation, need for gradient bench areas, et cetera.
11 Unlike SUWA's other new assertions in this reply brief, this 12 one does find support in Dr. Catlin's affidavit, and a 13 matter of fact, is drawn directly from Dr. Catlin's 14 affidavit. But, again, there is no attempt to meet the five
() 15. factors with respect to a late-filed basis with respect to 16 Dr. Catlin's affidavit and what he says and, therefore, it
'17 should be rejected.
l 18 Moreover, SUWA has not provided any legal basis l 19 for such requirements with respect to the environmental l
20 report. These are, again, essentially the same requirements I 21 that are tied to the Wilderness Act for wilderness 22 designation and, as we have indicated, that is BLM's scope, 23 not the NRC's.
24 Also, this argument, they ignore in the ER, 25 environmental report, the ER's statement that there is l
l
(~}
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1141 .
1 nothing unique.about the vegetation habitat in this area, (Y
s/ 2 that the entire 32 miles result in a minor loss of 155 3 acres, I believe, of greasewood and desert shrub / soft brush, 4 and this is 155 acres, according to the ER, according to the 5 environmental report, out of over 1'million acres of such 6 habitat in Tuella County. They have provided no basis to i
7 show that this taking of 155 acres out of more than a 8 million is anything but a minor impact on the environment.
9 With respect to contention B, the alternatives, in 10 their contention, SUWA ignored completely the fact that we 11 did analyze different alternatives. We analyzed the two ,
12 alternatives along Skull Valley Road, the rail spur along 13 Skull Valley Road and use of the road itself, and-there are '
~~14. environmental impacts that we analyzed with respect to those~~
-fs.
}) ,
15 two alternatives.
16 They now argue in their reply that the 17 alternatives we addressed are not meaningful because they 18 are essentially unworkable, but they provide no basis for 19 that whatsoever, except they cite to the state's low rail 20 contentions, which the board itself has already rejected.
21 So that provides no basis for their claim.
22 They also point to an alternative proposed by Dr.
23 Catlin for the first time. Again, this is a new basis 24 provided as part of the reply, and they have not shown --
25 'and failed to make any showing under the five factors that ANN RILEY & ASSOCIATES, LTD.
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1142 1 this board should admit this late-filed basis and, i l
(Aj 2 therefore, it must be rejected.
1 3 Moreover, if you look at the map that is Exhibit 2 l i
i 4 to SUWA, you will see that Dr. Catlin suggests moving the 5 rail spur to the right, or to Skull Valley, and if you look 6 up at the top, you will see there are several black squares 7 there, Exhibit 2 to SUWA's petition. Those black squares j 8 are state-owned lands, if you look down, and as a practical 9 matter, given the state's opposition in this proceeding, 10 they would not grant us the right to go over their lands, 11 and there is no factual basis that is a credible 12 alternative. They must show a factual basis for it being a 13 credible alternative and they have not done so.
14 Moreover, as we pointed out in our brief, this
() 15 entire contention is again based on the same speculative 16- realms as contention A, and their standing. We pointed out 17 the Rancho Seco case in our brief. In Rancho Seco, the 18 Commission rejected an argument that the EIS had to consider 19 restart of Rancho Seco as an alternative, and the Commission -
20 said that was too speculative because, first, SMUD would 21 have to make a decision to restart the plant. Second, have 22 to go through a new referendum, the shutdown took place 23 because of a referendum initially. They would have to go 24 through a new referendum, and then through a series of NRC 25 steps. And the Commission, in Rancho Seco, we don't need to gh ANN RILEY & ASSOCIATES, LTD.
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i 1143 e i
i consider a speculative alternative of that nature. So this. '
l[ 2 whole contention is based upon speculation that Congress or 3 BLM may act'to make this area wilderness, and, as we have l
4' shown, that is entirely speculative.
r I' 5 So, for those reasons, we believe that both SUWA's 6 contentions do.not meet the standards for admission and the 7 -board should deny them.
8 JUDGE BOLLWERK: All right. Anything from either 9 board member at this point? All right. Staff then? l 10 MS. MARCO: We did recognize before, we stated b 11 that the information provided, the new information provided, l l 12 there is no information regarding late-filed standards, and 4 L
13 there is no showing of good cause for filing this new
)
14 information late.
l 15 SUWA has substantially rewritten contention-A and 16 I would like to' address the new information contained in 17 that contention. The staff --
18 JUDGE BOLLWERK: When you say rewrote, excuse me, i 19 you mean in their reply?
l L 20 MS. MARCO: That is' correct. !
21, JUDGE BOLLWERK: All right.
22- MS. MARCO: The staff believes that except for one 5 23 small portion of this, SUWA has not set forth any part of it 24 that should be admitted as a good contention. SUWA asserts
~~'25 the application is defective because it doesn't address l~~
l
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l 1144 1 impacts of the low rail spur on wildlife and recreational
/ \ 2 opportunities in the North Cedar Mountain areas. !
! 3 First, SUWA states that the environmental report 1
4 does not address impacts in the area above the rail spur 5 which are particularly vulnerable to noise. But this 6 assertion is without any support that the upper areas are 7 particularly vulnerable to noise, or that noise would even 8 travel up that far.
9 Dr. Catlin's new declaration does not provide any 10 real support for SUWA. In paragraph 8, if you look, he says 11 the impacts will intrude into North Cedar Mountains, the 12 impacts will not be confined. They will have far-reaching 13 effects. But beyond these blanket assertions, there is no 14 factual support.
- p')
5 15 Next, SUWA asserts that the environmental report
%/
16 does not address the visual impacts of the rail spur on the 17 wild character of the foothills and the peaks of the area.
18 But it is very difficult to see how this differs from what 19 SUWA says was addressed, which was the visual alteration 20 will be evident from the benches and higher elevations of 21 the North Cedar Mountains. Thus, SUWA has not really shown 22 a material dispute with the Applicant in that regard.
23 SUWA also asserts that impacts to recreational 24 users seeking solitude has not been addressed. However, the 25 . Applicant has addressed noise, has addressed the visual
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1145 1 : intrusion and NEPA does not require that an impact be 2' analyzed from every conceivable angle. Thus, SUWA has not
.-(n} 2 3 .shown that_the Applicant failed to include an injury -- an 4 impact required to be analyzed under NEPA.
-- S - In this regard, SUWA takes issue with the
-6. Applicant's statement that because -- they say because of '
7 the low level of recreational use in the area, the rail spur 8 'is not expected to be a significant impact to the scenic 9 environment. SUWA states that this statement improperly 10 assumes that visual. impacts are measured by the number of ,
11 people who view them, but SUWA does not provide any support 12 for its assertion why this Applicant's view is improper. I 13 In fact, in licensing decision for Three Mile 14 Island Unit 2, the licensing board specifically found that O( ,f 15 the site,-Unit 2, was sufficiently remote and rural so that
16. Its unusual impact is limited to a relatively small amount 17 of people. And that is LBP-7770. Also, the Appeal Board in 18 1977 Seabrook decision, that would be ALAB 422, discussed i
19 visual impacts on transmission lines in terms of the amount j l
20 .of visitors to the area.
21 SUWA also refers to the Applicant's plan to 22 conduct a comprehensive wildlife survey to assure that 23 certain animals are not located near the rail spur. SUWA i'
24 states that the Applicant has not addressed the impacts to 25 animals. But SUWA didn't demonstrate that the Applicant's
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i 1146 1 . plan for determining the existence, this survey, at the time 2 of construction, or moving the animals is defective.
?(
~~13 SUWA also states that the Applicant hasn't .~~
4 . addressed noise impacts on these animals, although the l ,
5 Applicant does say that construction activities will 6 temporarily disturb resident wildlife-and the impact to the: !
7 local population from both construction and operation would.
8 be minimal.
9 Now, there is an area where I do believe that SUWA 10 has shown a particular conflict with the application so that i
11 there is a material dispute. It is a small matter. There 12 are four animals. Four animals, the kit fox, burrowing oil, 13 northern harrier, and ferruginous hawk, that SUWA sets forth
.14 in its reply. l O)
(, 15 If you look in the application, the Applicant j 16 recognizes the presence of two of those species during a 17 1998-survey, that would be the northern harrier and the 18 burrowing oil. And since the Applicant does say that the 119 maintenance may' affect -- the Applicant does say that there 20 will be maintenance on this fire barrier, I believe that 21 SUWA has shown that, with respect to the two animals, that 22 the. Applicant says'will likely be there, that they have 23 shown that there is a conflict.
!24 However, I don't think that should be admitted for 25 .the other.two animals because SUWA hasn't shown that they --
l b
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L -1 any indication that they would be there and I don't think
{ !
2- that this issue should be' covering the Applicant's -- they 3 -- say_the Applicant failed.to guarantee that surveys will be l 4 ' conducted each time the fire barrier is cleared and graded,
.5 as a mitigation measure, SUWA hasn't shown that that kind of l'" !
6 thing is required, so even though the PFS may choose to do
'7- _this. Though it should be limited'just to the maintenance 8 .of the rail spur _on those.two animals.
l .9 Regarding the assertions that are based on the 10 matters pertaining to bio-diversity, habitat fragmentation Ell and the ecosystem approach to land, these matters are not L 12 explained in any detail and they don't adequate point to any i 13 defect in the Applicant's_ submittal. SUWA has not explained l
t 14 why they are required to be considered under NEPA and, a
( 15 therefore, this basis statement should be rejected.
16 Now,_SUWA claims that the Application is deficient 17 because, apart from the wilderness values, it does not 18 discuss the potential wilderness designation of the land.
19 And the staff objected to this part of the contention in 20 which SUWA'would have the potential for wilderness 21 designation be included as an impact that would have to be 22 anelyzed. -SUWA's argument is too speculative to demonstrate ;
23 that a material dispute exists with the Applicant. Also, l 24 SUWA does not.show that the Applicant has failed to consider i 25 a matter required by law, because NEPA does not require that l:
i
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1148 L 1 speculative matters that are not. reasonably foreseeable be
T 2 addressed.
(G
'3 The.First Circuit, in a 1992 decision of Sierra 4 Club vs. Marsh; said foreseeability means that the impact is
.5^ sufficiently-likely to occur that a person of ordinary 6 prudence would take it.into account in reaching a decision. i l
7 SUWA does not dispute that the land is not currently 8 protected by the Wilderness Act. Further, as we' pointed out 9 in our brief,.the issue of the designation of land in Utah 10 is a highly controversial matter and. bills have been 11 introduced every year in the Congress, all have failed. And 12 it is mere speculation that Congress will pass legislation 13 regarding the land in question, especially since, as PFS 14 observed, BLM has determined it should not be declared 15 wilderness.
16 Thus, SUWA's basis is too speculative, not 17 foreseeable as an impact required to be considered under 18 NEPA and doesn't show a material dispute that the Applicant l 19 has failed to do something they are required to do.
L L 20 Regarding Contention B, SUWA's second contention 21 states that the Applicant has failed to analyze meaningful
- 22 alternatives to the low rail spur that would preserve the l
L - 23 wilderness character and wilderness designation.
l-l 24 The Commission's regulations at Section 51.45 25 ' states the Applicant must describe alternatives to the
_ )
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1149 1 proposed action and alternatives available for reducing or 2 avoiding adverse environmental effects.
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3 Regarding alternatives to the proposed action, 4 SUWA has not set forth any reasons for its belief that the 5 Applicant's discussion of siting or the no build alternative 6 is not valid, hasn't shown a material dispute with the 7 Applicant by stating what alternatives it would have 8 considered in.that. regard.
9 Now regarding alternatives available for reducing 10 environmental effects, for the reasons basically in the 11 first contention SUWA has not shown that a material dispute 12 exists with the Applicant regarding adverse environmental 13 effects.
14 [ Pause.]
15 JUDGE BOLLWERK: Do you think you can backtrack 16 for about maybe 10, 15 seconds? I think that's all. I 17 don't think there was any more interruption than that.
18 MS. MARCO: Yes, I think I can do that.
-19 JUDGE BOLLWERK: You just started talking about 20 Contention B, so --
21 MS. MARCO: All right.
22 JUDGE BOLLWERK: Why don't we go back on the 23 record, by the way?
24 MS. MARCO: All right. Regarding the requirement 1
25 that the Applicant consider alternatives available for
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~~1. reducing environmental effects, I mentioned in the first j2 part, in response to the first contention that SUWA has not~~
[
3 shown a material dispute' exists with the Applicant-regarding 4 have to show alternatives.for environmental effects.
~
5 The one aspect that we did consider sufficient we 6 didn't.think that.they had. set forth any reason to show that 7 the Applicant's mitigation alternative was invalid. )
8- If NEPA does not require inclusions of speculative 1
9' ' matters and the loss of wilderness preservation status i L 10 underneath those too speculative to be concluded under NEPA. I 11 Also, SUWA has not set forth with specificity what 12 alternatives it would have considered and has not explained J 13 why the Applicant's discussions of alternatives such as 14 heavy haul route is deficient.
() 15 16 In its reply SUWA. claims that the PFS alternatives L are unworkable. SUWA relies on its support for its '
l 17 assertion in the State's filing but offers no facts, no l l 18 expert opinions for this assertion, and finally SUWA states i
19 that Dr. Catlin's alternative presents itself.as a viable 1 20- option. '
l I-21 Dr. Catlin however merely asserts that running the 22 railroad two miles to the east would have less impact, but
[ 23- -he doesn't provide any support for this assertion other than l
~~24. to say-it avoids sensitive wetlands, as Judge Bollwerk had L. 25 noted, but this is not sufficient for a material dispute.~~
l.
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l 1151 1 The Applicant stated in its-environmental report that there-()~ 2 are no known wetlands or other environmentally sensitive 3 areas along the entire 32-mile rail spur. Thus SUWA has not i
4 provided any basis for including this alternative and-has 5 not shown a material dispute exists with.the Applicant, and 6 for these' reasons -- except for that small part of 7 Contention A, these contentions should be rejected.
8 JUDGE BOLLWERK: All right. Mr. Quintana, before 9 I guess I skipped you, you.hadn't said you wanted to say 10 anything but if you want to say something, now is the time.
11 MR. QUINTANA: Enough said.
12 JUDGE BOLLWERK: All right. Ms. Walker, how long 13 do you think you are going to need?
14 MS WALKER: Oh , not too long. ,
.( ~15 JUDGE BOLLWERK: All right. Why don't you go ahead 16 then.
17 MS. WALKER: Okay. PFS's first argument was that 18 we're providing new bases for our contention, and I suggest 19 it's just a clarification. The groundwork for it is in our 20 motion to intervene. We say the ER is insufficient and then 21 we go on to explain that and -- I'm sorry, petition to 22 intervene.
23 We go on to explain that in detail in our reply.
24 He says that the Applicant has sufficiently dealt 25 with noise. .The noise levels are described with regard to i
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> i 1152 i l' the road and the ranches and not with regard to the uplands,
/ ,s) 2 and I refer to NRC regulations which talk about how to give 3 your contentions, and it says, "
If the petitioner believes 4 that the application fails to contain information on a l l
5 relevant matter as required by law, the identification of !
6 each failure and supporting reasons for the petitioner's 7 belief must be included."
8 So it says "rnasons" -- which doesn't say 9' " facts" -- which means that if I understand that correctly, 10' you just point out the deficiencies. I think that if you 11 require a stronger showing of facts than SUWA has included 12 in its reply that-you are basically imposing a double 13 standard, so then the Applicant gets to say this, this and 14 this -- for example, that there will be no impact on p)
( ,
15 recreation without further support -- and yet the Intervenor
~~16. or the potential Intervenor doesn't get to say that without 17 further support, to the extent that you feel that SUWA 18 didn't provide further support.~~
19 For example, the notion that sound travels upward 20 and that the linear miles between the rail spur and the 21 upland would be different, I think that that is sufficient 22 to establish that the-noise analysis does not adequately 23 consider noise travelling upward and westward. They just 24 don't. address.
25 The PFS repeatedly talks about there's loss to
~
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1153 1 _such a small area', . why should any of this really matter?'
r 2 That is conceivably true when you look-at the whole valley, 3, Lbut again SUWA's interest is concentrated on a smaller t
4 portion of the whole valley where the impacts will be more
.5- significant. !
6 With regard to-recreation, the only recreational 7 impact that they really address is recreational impacts on 8 ORV use. They don't talk about hiking. They don't talk 9 about people.trying to get some relief from the city and ;
10 search out opportunities for solitude.
11 They suggest that this analysis is enough but if [
12 your underlying understanding of the sort of baseline 13 situation is that it's an area that no one really cares 14 about or if-they do it is used only by ORV users then your 15 analysis isn't going to address these other values that SUWA
(}
16 puts forward.
17 So in other words, the license application starts 18 from certain notions and then conducts its analysis, and 19 this baseline assumption had no sort of correlation to 20; recreational use or opportunities for solitude or ecosystem
- 21 . management -- those kinds of things -- and that is why they 'l 22 are not addressed.
4 23- The Staff suggested that the impact on wilderness 24 designation is too speculative, but in the context of 25 ' standing and then again in the context of bringing NEPA I
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1154 1 allegations, which is what is at issue at Idaho Conservation fh; 2 League, the court there thought that a decision not to 3 consider something wilderness was not too speculative even 4 though Congress had to add there was no proposed development 5 and NEPA would occur again so Ms. Marco says the possibility 6 that this area would be designated wilderness is too 7 speculative under NEPA but the Ninth Circuit thought that 8 NEPA issues had to be addressed and they did address 9 alternatives in that case, deciding ultimately that the 10 Forest Service had and analyzed a range of alternatives but 11 that the issue was not so attenuated that they didn't need 12 to consider alternatives for impacts on roadless area.
l 13 With regard to alternatives, I think that it is 14 essentially a legal argument -- NEPA requires analysis of a
(} 15 meaningful range of alternatives to the proposed project --
16 and our meaningful alternative to this proposed project !
17 would be one that has fewer impacts or no impacts on this l 18 roadless area.
19 Excuse me again for being unclear but we are not l 20 suggesting that there are any wetlands along the current 21 route. The suggestion that Dr. Catlin made was that if 22 another -- if an alternative route were analyzed that it 23 shouldn't go through wetlands that are in the center of the 4
24 valley, and please excuse that lack of clarity.
25 So I think that unless the Board has further
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1155 l' questions -- and I appreciate the Staff's supporting SUWA's
('
\-
2 contentions in that narrow area that they suggested we were 1 l
l 3 entitled to.
L 4 JUDGE BOLLWERK: -All right, just one second.
L 5 'All right. Does anyone else have anything they 6' .wish to say with respect ~to these contentions? Mr.
7 Gauklear?
8 MR. GAUKLEAR: I would like to say a few points.
9 JUDGE BOLLWERK: All right. Hold on, Ms. Walker. j 10 You are going to be up one more time, if you want to be. l i
11 MR. GAUKLEAR: I would like to make several 12 points. I
~~b I 13 First, Ms. Walker claimed that SUWA has shown that )~~
14 the environmental impacts on this area would be greater than l 15 i() in other areas through which to route rail spur passes. I 16 don't believe they have set forth any basis to support any 17 such assertion like that.
l 18 Staff refers to maintenance activities on two 19 species. I would point out that generally the environmental 20 report does discuss construction operation of the rail line 21 and concludes that construction operation on the rail line
-22 .will have minimal impact on species in the area, at page 23 4.4-3 and 4.4-4.
24~ Also SUWA refers to noise. Again we have !
! , 25 identified the maximum noise levels. We have discussed it l
l
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1156 I .1 with respect to Skull Valley but a maximum noise level is a
( }c '2 . maximum noise level and they have shown no basis to show why l 3 that is inadequate with respect to the area in general.
4 Beyond that, I believe I have nothing else to add, 5 Your Honor.
6 JUDGE BOLLWERK: All right. Let me just ask - '
7 just want to make sure this is clear in my mind.
8- In terms of the lead agency again here, this 9 agency is clearly the lead agency with respect to this rail 10 spur, in terms of the NEPA analysis, excuse me -- yes?
11 MR. TURK: Your Honor, I can't answer that any 12 more clearly than I did before.
13- JUDGE BOLLWERK: Okay.
14 MR. TURK: For our purposes, for licensing here, j
) 15 .yes, but again the lead agency for determining whether or 16 not to grant the right-of-way --
17 JUDGE.BOLLWERK: Is BLM.
18 MR. TURK: -- is BLM, right -- and they have their 19- own review process and will have to make their own 20 determinations.
21 Now whether or not they prepare an EIS as part of 22 that, I don't know, but they decide whether or not to give 23 the right-of-way.
24 JUDGE BOLLWERK: Well, now I am confused.
~~25. JUDGE KLINE: Well, now I'm confused.~~
t l
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1157 1 JUDGE BOLLWERK: Well, I asked'the question then,
[][ 2 not to-confuse things but to.make sure it's clear.
,s, f 3 JUDGE KLINE: The fact -- isn't it true that BLM :
4 is a federal agency -- l
~
5 MR. TURK: Yes. ;
L 6 JUDGE KLINE: Yes, and as such it has a duty to
'7 prepare an Er_cironmental Impact Statement on any action j i
8 it' - on a major federal action that it takes. Now unless )
9 .there is some reason for exempting it from that, it would 10- ordinarily do that, wouldn't it?
l~ 11 MR. TURK: If it.was a major federal action with L 12 significant environmental impacts, they would have to do the
!~
13 EIS. If.they determine that it'has insignificant impacts or 14 that it is not a major federal action, they may do what we l( ) -15 do, which is an environmental assessment --
16 JVDGE KLINE: Yes, I understand. .
i ,
17 MR. TURK: -- not a full-blown EIS. !
18 JUDGE KLINE: .I understand. I am still trying to 19 get the issue of jurisdiction settled though.
120 MR. TURK: I guess I would turn to the Applicant 21 'at this point since they.have submitted the application for 22 the right-of-way. Perhaps BLM has indicated to them what 23 their review process entails.
I:
24 JUDGE KLINE: See, there is a project before us 251 and we are a federal agency, so we also have a duty to do a c
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1158 ;
1 complete Environmental Impact Statement which says as things I
(~'] L2 stand now without further explanation, two federal agencies kJ 3 have some role in preparing an Environmental Impact ,
4 Statement unless there is an agreement as to a lead agency.
5 MR. SILBERG: Actually there are three because the 6 Bureau'of Indian Affairs is also involved.
7- JUDGE KLINE: Oh, okay -- but still the question 8 stands, how is this jurisdictional question resolved?
9 MR. SILBERG: The agencies, typically agencies 10 agree amongst themselves if they are -- l 11 . JUDGE KLINE: Ah.
12 MR. CILBERG: -- are going to play lead agency or i
13 they are going to use a tiering process. There are a number '
14 of procedural devices that agencies can use to handle it.
./
b) 15 Clearly it was Congress's intent -- the CEQ's 16 intent that not every agency has to prepare an EIS for major 17 federal actions.
18 JUDGE KLINE: That is my understanding, so what 1
19 has been done in this instance? '
20 MR. SILBERG: Well, clearly with respect to the 21 Bureau of Indian Affairs they will be a cooperating agency 22 with respect to the N3C's Environmental Impact Statement.
23 I cannot say the same thing for BLM. I suspect l 24 that issue has been discussed. I don't know if it has been L 25 resolved. My guess is that BLM would also be a cooperating l
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1159 1- . agency although --
gw 2 JUDGE KLINE: Because-in a sense it matters
'3 L because if a party wants to set a NEPA contention before us, 4 and in fact some other agency is going to do the NEPA 5 ' assessment, then one might surmise that it should be before.
6 them. 1 7 MR. SILBERG: Well, you could certainly have a 8 case where the same impact, two different aspects of a 9 project, is looked at by two agencies, so I don't think it !
l 10 necessarily follows that because NRC looks at the impact 11 should BLM choose to do an Environmental Impact Statement 12 that they would not also look at the impact.
13 I think both agencies would and it is for that 14 reason that you have the lead agency process.
15 JUDGE KLINE: We are still trying to deduce who
.16 will do the alternative routes analy: is in a Environmental ;
i 17 Impact Statement. I 18 MR. SILBERG: I think the NRC has an obligation to 19 look at alternative routes analysis, and we have certainly
.20 filed our application -- our environmental report presented 21 alternatives analysis.
22 One of the problems with the alternatives analysis 23 suggested as a contention here is (A), the initial 24 ' contention, suggested no alternatives, but just said we 25 hadn't looked at them when in fact we had. Now they come f- ANN RILEY & ASSOCIATES, LTD.
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~ 1' back with a very vague suggestion of well, let's move the iN 2 right-of-way two and a half miles without any indication
' (d 3 that such a move would even be feasible and I believe as Mr.
I i.,
i 4 Gauklear indicated it isn't because that would involve lands 5 that are owned by or controlled by the State and unless Ms.
L 6' Curran is willing to stipulate.that the Sate will allow us 71 right-of-way_over those lands, I think you can assume that i
!. 8 that'is not a' reasonable alternative. NEPA does not require l
9 the consideration of --
L 10- JUDGE KLINE: I don't want to know the merits of 11 it now. I just want to know who is going to do the job.
12 MR. TURK: May I ask permission to supplement the 13 l .
record? Early next week I will find out what BLM's j 14 . intentions are.
()
l 15 JUDGE KLINE: All right.
l'6 MR. TURK: And I can provide that information 17 through a letter to the Board and parties.
18 JUDGE BOLLWERK: Okay. Why don't we -- if no one 19 has any objection, I would like to -- I think that needs to 20 be clear here, because one of our concerns is, when we were-21 talking about this, is are we going to be -- if we accept a i
22 contention here or as we look at this we don't accept a 23 contention, are we stepping on someone else's toes, because i 1
24 as-you have cited a case, we are supposed to stay out of 1
25 other people's jurisdictions, so does that suggest an answer I
l' I i
1 i
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1161' 1 to this contention or not? I don't know, but I think at f
,/~N - 3 least.what we would like is whatever clarification is d ~3 possible on that point, if you understand what I am saying.
4 MR. TURK: Yes, and I think what I can simply do 5 is provide the facts to you as to what BLM will be doing and 6 'how they will play into the Staff's EIS as we perceive it. j l 7 JUDGE BOLLWERK: All right. Anything else you l
.I l 8 want to say, Mr. Silberg? You are looking like -- no? All i 1
9- right.
10 MR. TURK: I would ask, and perhaps Mr. Silberg 11 knows the answer, whether BLM has indicated that they intend i
12 to conduct an EIS scoping process or to prepare an EIS on {
13 this.
14 MR. SILBERG: I don't know that answer. I could 15 certainly find it out early next week.
(O'\
16 JUDGE BOLLWERK: I'm sorry, go ahead.
I 17 MR. SILBERG: No, I can certainly work with Mr.
18 Turk and we'll figure out what the facts are. I just don't 19 know them off the top of my head.
20 JUDGE BOLLWERK: Let me ask one question, if you 21 know the answer to this, and I don't want you to speculate 22 on it obviously.
23 If BLM were to prepare an Environmental Impact t.
24 Statement, is that something if they were the lead agency
'25 the NRC would simply take, look at, accept, or would it be l
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1 1162 l I
1 comething that the, tid reanalyze? I guess that --
[ ; 2 MR. TURh: i don't know how we would handle it, l \~) l 3 Your Honor. I 4 JUDGE BOLLWERK: All right. Well --
5 MR. TURK: I have a feeling, I mean intuitively I 6 know that I would recommend we not re-do what BLM has done, 7 but I would expect that nonetheless we would incorporate 1 i
8 into our EIS the results of their findings. I l
9 JUDGE BOLLWERK: All right, and if that were the l 10 case, that at least to us raises the question where is the 11 point at which you -- who do you object to? Is it to us or 12 is it to BLM, given they are the ones preparing the 13 Statement if NRC is simply going to incorporate that 14 document into its Environmental Impact Statement?
(s 15 (v) Obviously if BLM is the lead I would think, if 16 they are the lead agency they make a ruling of some kind.
17 Depending on how it comes out, obviously you can take them 18 to court if you don't agree with it, but is that something 19 we should be getting into? I guess that is the question I 20 have.
21 Is that clear or unclear or irrelevant? You can 22 tell me -- tell me it is irrelevant if it is. We are just 23 trying to get an answer here because as you all pointed out 24 with the -- I can't remember the case off the top of my 25 head -- but the Commission has said --
l 1
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1163 1 MR. SILBERG: Idaho Resources --
[l v
2 JUDGE BOLLWERK: -- in the Idaho Resources case to 3 stay.out of the other agency's business, obviously, so --
4 MS. MARCO: Your Honor, actually if I just may 5 mention one thing?
6 JUDGE BOLLWERK: Sure.
I 7 MS. MARCO: I would just caution against relying 8 too heavily on that case because in the final footnote the 9 Commission did say that the_ decision was quite narrowly 10 limited --
11 JUDGE BOLLWERK: By?
12 MS. MARCO: -- permitting authority.
13 JUDGE BOLLWERK: Okay. What timeframe do you 14 think you are in, Mr. Turk? Mid-week?
() 15 MR. TURK: Mid-week.
16 JUDGE BOLLWERK: Mid-week next week? That gives 17 about three or four -- let's say -- I haven't got, is there 18 a calendar over there?
l 19 Well, once we receive the document I will set a 20 response date for, let's see, we are talking about perhaps, 21 say, the 16th or 17th, that is Wednesday or Thursday?
22 MR. TURK: For us to provide the information?
23 JUDGE BOLLWERK: Yes.
24 MR. TURK: That sounds fine.
25 JUDGE BOLLWERK: All right.
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(_) Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034 1
1164 1 MR. SILBERG: I wonder if whether any response is J 2 necessary. I mean at that point we are providing -- the
~
23 staff is going to provide, in essence, fact information --
4 JUDGE BOLLWERK: Right.
5 MR. SILBERG: -- as another data point for the 6 board to reach its decision one way of the other. l 7 JUDGE BOLLWERK: Right. Again, I don't know what 8 it is going to say,-so that's why -- I mean I don't want to 9 cut -- let me do this. Let's see what it says, and if we 10 believe that it needs a response, or one of the parties 11 believes they would like to respond to it, they can let us 12 know and we can set a date accordingly.
13 MR. SILBERG: None of the parties tend to be 14 reluctant to do that.
~~15 JUDGE BOLLWERK: That is -- I have noticed that.~~
16 MR. TURK: I assume, Your Honor, as long as we 17- don't make argument in that paper, there is nothing to 18 respond to, it would simply be a statement of fact.
19 JUDGE BOLLWERK: That's correct. All right.
20 Let's see, Ms. Walker, I think you have an 21 opportunity at this point, since I interjected a question.
22 Anything you want to say on any of these subjects?
23 MS. WALKER: Well, I do think we would want the 24 opportunity to respond to whatever factual -- whatever facts 25 are raised. I certainly wouldn't want to waive that l
l l
! (_,
p/ ANN RILEY & ASSOCIATES, LTD.
Court Reporters l
1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034
jL
~~. 1165 1 opportunity.~~
i
, /y 2- MR. TURK: Actually, we could have argument now in kJ 3 the alternative and dispose of any more filings.
4 MS. WALKER: You want to know what it says first.
5 MR. TURK: Well, either BLM is going to be doing l 6 NEIS separately or they are not, and why don't we have 7 argument now over how that would affect your decision and l
8 then we will have the facts come in. Rather than get into 9 another trail of papers and responses.
10 JUDGE BOLLWERK: I don't have a problem with that 11 if people feel they are ready to address that issue. I 12 suspect that may involve some --
13 MS. CURRAN: The state would have a problem with
! 14 that. We would rather than an opportunity to prepare for
'(
15 such an argument.
l 16 JUDGE BOLLWERK: All right. Let's see what Mr.
17 Turk's document says and then let's proceed from there. If 18 it appears that this affects the admissibility of the ;
L 19 contention in some way, we may need another round of 20 filings. I hate to start that, but I think, again, I am 21 concerned that this question -- we not begin down a path one l- 22 way or the other where we can't -- we simply have no l
( .; 23 authority to complete something, i 24 So, do you'want to say anything, Mr. Silberg? You 25 are bending forward.
L ("' ANN RILEY & ASSOCIATES, LTD.
4 f(_ Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 l Washington, D.C. 20036 (202) 842-0034 1
l 1166 1 MR. SILBERG: No.
tO 2- JUDGE BOLLWERK: If not, I will move on.
!;j 3 MR. SILBERG: I was just bending forward.
41 JUDGE BOLLWERK: You are just bending forward.
5 Okay.
6 Ms. Walker, anything else you want to say on'this
~~7 subject?~~
8 MS.. WALKER: No, thank you.
l 9 JUDGE BOLLWERK: All right. Be aware that if we 10 do look at the staff document and decide to set a response 11 date, it probably will not be more than week or so, taking )
l 12 into account there is a holiday in there. So, you know, be 13 prepared to give us something back rather rapidly.
14 ~ Anything at this point? 'Do the' board members have
() 15 any questions? -
16 (No response.]
i 17 JUDGE BOLLWERK: I guess at this point, if there 18 is nothing else -- anything on any other subject anyone l 19 wants to bring to the board's attention while you have us i
20- here?
21 MR. SILBERG: Well, since I believe this may be 22 the last time we all have the chance to, in person, appear 23- before' Judge Kline, I just wanted to extend Applicant's best L- 24 wishes and wish him good luck and thank him for his l 25 participation.
!(O ANN RILEY & ASSOCIATES, LTD.
\s_)
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 L '
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1167 1 JUDGE KLINE: I appreciate your best wishes and
("N 2- wishes of good luck, but I might observe that they may be 3 premature, because I am working on a part-time assignment 4 which may keep me on the case.
5 JUDGE BOLLWERK: I am not sure how being on this 6 case can be part-time.
7 [ Laughter.]
8 MR. SILBERG: Well, in that case, I take it all 9 back.
10 JUDGE KLINE: I accept your good wishes. It is 11 too late to take it back.
12 JUDGE LAM: You think you won't have him around to 13 kick around anymore.
14 [ Laughter.]
(}
%.J 15 JUDGE BOLLWERK: All right. If there is nothing 16 else, then I would wish all of you a good holiday.
No one 17 here is traveling, fortunately. I guess for those -- is it 18 snowing in Utah today or is the weather good. Ms. Walker?
19 MS. WALKER: Snow.
20 JUDGE BOLLWERK: All right. In any event.
21 Everyone have a good holiday and we stand adjourned.
22 [Whereupon, at 4:02 p.m., the prehearing 23 conference was concluded.]
24
~~25 f-T. ANN RILEY & ASSOCIATES, LTD.~~
i,
' ) Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034
I L REPORTER'S CERTIFICATE l This is to certify that the attached proceedings
( 'I before the Unit'ed States Nuclear Regulatory Commission in V
the matter of:
NAME OF PROCEEDING: PRIVATE FUEL STORAGE, L.L.C.
'PREHEARING CONFERENCE DOCKET NUMBER: 72-22-ISFSI ASLBP No. 97-732-02-ISFSI PLACE OF PROCEEDING: Rockville, MD fh g ). were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and
-accurate record of the foregoing proceedings.
\
!-CA C _
%) O Jon Hundley Official Reporter Ann Riley & Associates, Ltd.
I lO r
n .r . . . .
d U k PRIVATE FUEL STORAGE PROCEEDING NRC STA'2F'S SUGGESTED SCHEDULE REVISION (DECEMBER 1998)
EVENT GROUP I 2 GROUP II2 GROUP III 2 Informal Discovery May 19, 1998 May 19, 1998 May 19, 1998 Begins -- All Parties Informal Discovery 2/28/99 2/28/99 2/28/99 Closes -- All Parties Deccatez 31, 1000 Duccetez 01, 1000 Devuu h i 01, 1000 Staff Position on 6/15/99 10/15/99 DEIS--Oct.[30,]1999 Contentions Devuu b 31, 1000 April 30, 1000 FEIS -- Sept. 30,] 2000 Formal Discovery Begins 3/1/99 3/1/99 3/1/99
-- All Parties Juudery 1, 1000 Jaumary 1, 1000 Jansaiy 1, 1000, except BRES/ FEIS-related discovery against -
Staff, which begins on BEf9/FEIS issuance date Formal Discovery Ends - 5/28/99 5/28/99 5/28/99
- All Parties Except Meich 1, 1000 Mezch 1, 1000 MeuvL 1, 1000 Against Staff Formal Discovery Ends - 8/15/99 6/15/00 D=:0 /1"/00
- Against S;aff Mezch 1, 1000 4/10/00 Decuu b i 31, 1000 June 30, 1000 FEIS -- 11730/00 NuiuuMz 1, 2000 Summary Disposition 8/15/99 6/15/00 December 1, 2000 Motions Final Filing 0/00/00 0/30/00 Date Merch 31, 1000 Ducuiles 31, 1000 Summary Disposition 9/15/99 7/15/00 _
January 2, 2001 Motion Responses Final 7/30/00 4/30/00 Filing Date Ay 1 30, 1000 J;nusiy 31, 2000 i
Ib u-qn
O ,
G' . ~
Board Sununary 10/15/99 8/15/00 February 2, 2001 Disposition Decision 0/1/^^ 0/01/00 Juum 1, 1^5^ Mezch 1, 2000 Pre-filed Testimony 11/30/99 10/15/00 March 2, 2001 Submitted 10/1/^^ C/20/00 July 1, 10^^ Mezch 31, 2000 In Limine Motions Due 12/15/99 10/30/00 March 16, 2001 10/10/^^ ?/10/00 mmmm
. _ _ , ,, .mmm .- . , ,
um ,- .s, .m ny . .,, vu, Hearings (including 1/2/001;'-12/28/00 11/15.- 12/15/00 April 1 - May 31, 2001 ,
limited appearance 11/2_._;12/2'/00 0/1 31/00 sessions as Aegest 1 OmptmeLez 20 Mey 1 June 30, 2000 appropriate) +999 . . . .
Findings of Fact 4/15/00 1/15/ W Of July 2, 2001 ;
(Simultaneous filings) 2/10/00 10/0/00
.. - < __ , , ..____m , mmmm
~ . mm . ., .mem m nus m ., ovvv Findings of Fact - 5/15/00 2/15/ W Of August 1, 2001-Responses 3/15/00 11/1/00 (Simultaneous. filings) Os cmLe -z 1, 1^^^ OmptmaLmz 1, 2000 Initial Decision Y/15700 l/15/01 October 1, 2001 0/10/00 12/2^/00 rebzne 2 1, 2000 Nu . mie r 1, 2000 ,
t 1 The contentions in Group I include Utah B; Utah C; 11Esh7h/ Case 153oi:k7/C6Hfider~aTed?Tilbis7ti? Utah F/ Utah P; Utah G; Utah K/ Castle Rock 6/ Confederated Tribes B; Utah M; Utah N; Utah R; Utali!S/Ca'stleiRo5k3[
and Security [AEC.
2 The contentions in Group II include Uteh C/Costle neck 7/Ce'efedereted T ibes r, Utah H; Utah L; Uteh O/Cestle neck 7, 'aidIUtah GG.
4
~ ~ -
i s
8 The contentions in Group III include Utah O/ Castle Rock 8 and 10; Utah T/ Castle Rock 10,'12, and . &
22; Utah U; Utah V; Utah W: Utah Z; Utah AA/ Castle Rock 13; Utah DD/ Castle Rock 16; Castle Rock 17; Castle Rock 20; Castle Rock 21; and OGD O.
SThiilitigationiof'GrobplII contest' ions'could'be?Affected71fIthe'reilsl'a need f6E~istens19575e~c6nd
~
i i
E6d5dIRAIs -or otheriinformationIon geotechnical issues ---?whichicannotl be known until;the"St'aff". receives j snd$rsviewslPFS's[ responses 1toTfirst-roundlRAIs m(fortwhich(theisubmission datel asichangeditdil/15/99)2i h i
~
5lApartifromMthe" 11mihationTofTDEIS" discovery., and"a*few otherTrevisions,~~ths?s6hidaleTforIllEfgiElbH f envifonmental} contentions sisi generally lef t undisturbsd 'atithis i hime'; 2 howeverB this icould le:tange'
~ ~ ~
dependingiuponjthelactual{ completion dates)ofsthe: Staff $s'rsview;and otheritaskslinf,thM proceeding d s 8JThs[if6116iisg_ Staff 3Bb11EEE165"dAE55I5ffehtTthlsisah~eddldi 12731798: lishin'ceT6fIdfif t ; SERTshdTo't'IEe3 f 3ppfirtsdit'y3f 6rT6oitund5E7on3he 21(13s Efr75torage
' ss k'.7 c
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,, 5/31799 Issuance of[HIEstirlEfassp6fta'ti'diTSER"5fid[cerEiflh'aEe7 7/30/99 DisftTSERTohTHi'-St6 iip ~storagd?655k?goeiftdNRCTmansgeniteEET FedeW17ksdister; noti'6d of[ opp 6'rtsdity" forTconunent j to; be j issudd]1-2 TmonthsTldte rf b[ift7SERTbn~TianSt~oE~ciskI(5E6Figi)Eg6siTt6~NRC msnigEisintWFidsisl~RssisEsr
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' notice;of.,opportunityJfor.:conunent;tolbeJ1'ssuedil 2 monthsilater? !
T9715/99 Issuancej of[SER[ add [COCif 6f? TrEESfoE[cai((tiin5poEEatl65)*.1 [
isssshceiof!Hif Stsrls t6rsgeitis kf fihi1~SER;and!CirEif1EsteT6f[C6ispIliEEe7(COC)?
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1673_0/9s Isisisc~"6fiDEift!SERIfoE[PFS{siE5E' '-
7730700] issuance;ofiHIIS to EE[s tora ge,. ca s kTfliiaf[SERI55d[COCl [
l l l9730/00 lasuancs~6fiffhal!SERTfdr?PFS7 !
I 3730/dO' lasuanceiof Fini1~EIS"forJPFS351ti.
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