ML20236T534

Applicant Response to State of UT Motion for Reconsideration of Ruling on Physical Security Contentions.* Board Should Reject State Motion to Reconsider Denial. W/Certificate of Svc

ML20236T534
Person / Time
Site:	07200022
Issue date:	07/22/1998
From:	Silberg J AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19354 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9807280245
Download: ML20236T534 (15)

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00CKETED USNRC

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July 22,1998 UNITED STATES OF AMERICA k "l '

NUCLEAR REGULATORY COMMISSION

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te Before the Atomic Safety and Licensine Board i

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In the Matter of

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72 I s Fs t

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(Private Fuel Storage Facility)

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ASLBP No. 97-732-02-ISFSI APPLICANT'S RESPONSE TO STATE OF UTAH'S MOTION FOR RECONSIDERATION OF RULING ON PHYSICAL SECURITY CONTENTIONS Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") hereby responds to the " State of Utah's Motion for Reconsideration of the Board's Ruling on State of Utah Physical Security Contentions"(" State's Motion"), dated July 10,1998.' In its Motion the State requests the Atomic Safety and Licensing Board (" Board") to reconsider its denial of basis (3) of Contention Security-C, which alleges the " lack ofjurisdiction and law enforcement authority by the LLEA on the Skull Valley Band's Reservation."

State's Motion at 3. The State's request for reconsideration is based on its claim that Cooperative Law Enforcement Agreement between Tooele County, the Bureau ofIndian Affairs and the Skull Valley Band of Goshute Indians is invalid because Tooele County

' Because this pleading coltains no safeguards information, it is being filed as non-safeguards-protected

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did not pass a resolution in accordance with Utah Code Ann. Il-13-5. E at 2-3. The State also requests the Board to find " Security-A and Security-B admissible to the extent that the Board rejected any and all of the bases for those two contentions based on the perceived existence of a valid law enforcement agreement...." E at 4.

The Applicant opposes the State's request for reconsideration. At the outset, as observed by the Board in its Memorandum and Order, "nothing on the face of the i

cooperative agreement gives... cause to question its validity." LBP-98-11. slip op. at 16, n.9. The agreement is duly signed by each of the named parties, including the Chairman of the Tooele County Commission. Further, the agreement is " approved as to form" by both the Tooele County Attorney and the Tooele County Sheriff. Additionally, as noted by both the Board and the parties at the June prehearing conference, Tooele County is actively providing law enforcement services on the Skull Valley Reservation pursuant to the agreement. Sag Tr. S-13, S-33. Notwithstanding these facts, the State now blithely asserts that it "has shown that the cooperative agreement... is not in force and thus Tooele County is not authorized... to conduct law enforcement activities on the Skull Valley Reservation." State's Motion at 3 (emphasis added).

The Board should not allow the State's collateral attack in this licensing I

proceeding against the authority of the County to conduct law enforcement activities on the Skull Valley Reservation. The NRC is not the forum in which to challenge the authority of an existing, functioning cooperative law enforcement agreement. G Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515,8 2

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t NRC 702,715 (1978) ("NRC may not undercut EPA by undertaking its own analyses and reaching its own conclusions on water quality issues already decided by EPA");

. Philadelphia Electric Comoany (Limerick Generating Station, Units 1 and 2) LBP 43A,15 NRC 1423,1469 (1982) ("the DRBC's role in determining the uses for water in the basin... bars [the NRC] from reevaluating the DRBC decision to allocate water to the Limerick facility....").

Here, the parties to the cooperative agreement -- including the responsible federal agency, the Bureau ofIndian Affairs -- clearly believe that the County is authorized to conduct law enforcement activities on the Skull Valley Reservation, for they are acting on that basis.

In any event, Tooele County has officially approved the agreement. The Tooele.

County Commission formally approved the cooperative egreement in an open meeting on June 3,1997. See Exhibit 1, Minutes of the Regular Meeting of the Tooele County Board of Commissioners held June 3,1997, Item 1. The minutes reflect that the Commissioners discussed the agreement with the County Deputy Sheriff and thereafter unanimously voted to approve the agreement. Id. In addition,just within the last month the County Commission has agreed to the extension of the current cooperative agreement with the Bureau ofIndian Affairs and the Skull Valley Band. Sag Exhibit 2, Minutes of the Regular Meeting of the Tooele County Board of Commissioners held June 23,1998, Jtem 9.2

' Paragraph 14 of the cooperative agreement provides that it "shall renew automatically.. for one year increments until such time as it is terminated...." Sgg Cooperative Agreement, Exhibit I to the State's 3

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e Moreover, the current agreement is just the latest in a series of similar cooperative

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agreements beginning in 1991 that have been entered by Tooele County with the Bureau ofIndian Affairs and the Skull Valley Band. As reflected in Exhibit I to the NRC's Staff's Response to the State's Motion, Tooele County did enact a formal resolution before entering into the initial 1991 agreement. Thus, the County Commission did adopt

- a formal resolution before it began providing law enforcement services under the series of cooperative agreements that have been in place since 1991.

The Board should not delve into the issue raised by the State's Motion of whether the above approvals are sufficient under Utah Code Ann. Il-13-5, which requires

"[a]doption of appropriate resolutions by the governing bodies of the participating public

- agencies... before any [ cooperative] agreement may enter into force." Sgg Exhibit 2 to the State's Motion (emphasis added). Those questions are not appropriate for NRC consideration or resolution. Sgg Long Island Limhtinn Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644,899-900, affirmed, ALAB-818,22

.NRC 651, reversed on other arounds, CLI-86-13,22 NRC 22 (1985); Long Island Lightina Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-88-13,27 NRC 509, 564-67 (1988).

L Motion. Item 9 of the June 23,1998 Tooele County Commission Mwaag Minutes, entitled " Contract Review " states in part that " Contract #97-06 Cooperative Law Enforcement - Skull Valley Goshutes" will be " reviewed again next year," which reflects that the County Commission has allowed the automatic extension of the agreement for another year.

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Thus, the Board should reject the State's motion to reconsider its denial of basis (3) of Contention Sectaity-C conceming the alleged lack ofjurisdiction and law enforcement authority of Tooele County on the Skull Valley Reservation. It should similarly reject the State's request to reconsider the admissibility of Contentions Security-A and Security-B admissible.' Any other result would have the Commission challenging the authority of another governmental body.

Respectfully submitted, Y

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- Jay E. Silberg~

Ernest L. Blake, Jr.

Paul A.Gaukler

. SHAW, PITTMAN, POTfS &

TROWBRIDGE 2300 N Street, N.W.

Washington,DC 20037 (202) 663-8000-Counsel for Private Fuel Storage L.L.C.

Dated: July 22,1998 1

' Moreover, the Board should reject the State's request to reconsider the admissibility of Contentions Security A and Security B even ifit were, upon reconsideration, to admit basis (3) of Contention Security-C, The Board has listed multiple grounds for the rejection of those contentions in addition to the State's failure to provide adequate legal or factual support for its claim of Tooele County's lack ofjurisdiction and

-law enforcement authority on the Skull Valley Reservation. Sg LBP-98-13, slip op. at 12-14. See also jd.

. at 6, n.2 ("The Board's use of the conjunctive 'and/or' in connection with its rulings... is intended to reflect that a failure relative to any one of the requirements of section 2.714(b) is sufficient grounds for dismissal of a contention.")

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00CKETED USNRC

% Jul. 27 Pl2:44 UNITED STATES OF AMERICA OFfr !w *-

RUO; W

NUCLEAR REGULATORY COMMISSION ADJU).;A1$s dip Before the Atomic Safety and Licensine Board In the Matter of

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22

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(Private Fuel Storage Facility)

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ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Response to State of Utah's Motion for Reconsideration of Ruling on Physical Security Contentions," dated July 22, 1998, were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. mail, first class, postage prepaid, this 22nd day of July 1998.

G. Paul Bollwerk III, Esq., Chairman Dr. Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB@nrc. gov e-mail: JRK2@nrc. gov Dr. Peter S. Lam

• Adjudicatory File Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

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Washington, D.C. 20555-0001 l

e-mail: PSL@nrc. gov l

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t Catherine L. Marco, Esq.

• Charles J. Haughney

..Sherwin E. Turk, Esq.

Acting Director, Spent Fuel Project On.

Robert M. Weisman, Esq.

Office of Nuclear Material Safety and Office of the General Counsel Safeguards Mail Stop O-15_B18 -

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 e-mail: pfscase@nrc. gov.

Denise Chancellor, Esq.

Joro Walker, Esq.

' Assistant Attorney General Land and Water Fund of the Rockies Utah Attomey General's Office 165 South Main, Suite 1 160 East 300 South,5* Floor Salt Lake City, UT 84111 P.O. Box 140873 e-mail:joro61@inconnect.com Salt Lake City, Utah 84114-0873-

- e-mail: dchancel@ state.UT.US j

John Paul Kennedy, Sr., Esq.

Richard E. Condit, Esq.

Confederated Tribes of the Goshute Land and Water Fund of the Rockies Reservation and David Pete 2260 Baseline Road, Suite 200 1385 Yale Avenue Boulder,CO 80302 Salt Lake City, Utah 84105 e-mail: rcondit@lawfund.org e-mail: john @kennedys.org Clayton J. Parr, Esq.

Danny Quintana, Esq.

Castle Rock, et al.

Skull Valley Band of Go.hute Indians Kimball, Parr, Waddoups, Brown & Gee Danny Quintana & Ae xiates, P.C.

' 185 S. State Street, Suite 1300 50 West Broadway, Fourth Floor P.O. Box 11019 Salt Lake City, Utah 84101

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Salt Lake City, Utah 84147-0019 e-mail: quintana @xmission.com e-mail: karenj@pwlaw.com Harmon, Curran, Spielberg &.

Office of the Secretary

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Diane Curran, Esq.

U.S. Nuclear Regulatory Commission i

. Eisenberg, L.L.P.

Washington, D.C. 20555-0001 2001 S Street, N.W.

Attention: Rulemakings and Adjudications Washington, DC 20009.

Staff l

.e-mail: DCurran.HCSE@zzapp.org e-mail: SECY@NRC. GOV (Original and two copies)

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Martin S. Kaufman, Esq.

Richard Wilson Senior Vice President / General Counsel Department of Physics Atlantic Legal Foundation Harvard University

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205 E. 42nd Street Cambridge,MA 02138 i

New York,NY 10017 e-mail: wilson @huhepl. harvard.edu e-mail: mskaufmanl@earthlink. net

• By U.S. mail only i

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AL PM1 A. Gaukler' '

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9 MINUTES OF THE REGULAR MEETING OF THE TOOELE COUNTY BOARD OF COMMISSIONERS HELD JUNE 3s 1997 The Cnsirman of the Board of Couery Commissioners sailed the mesta p.m. The casek enued the rou which showed Commiestoners Tary1 Hussaker.

McArthir present. Commissioner Gary OdfDth was excused. The time, plac meeting had been provided to the Transcript Bu!!ctie and to cach mem e

by delivering copies of the notice and agenda st Isast two days befbee to cach o Alee psesent were Deusins Akte.reas. Anemmy and Dennis Ewing Clerk.

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gyy re.u ionia me,21_-;., _=. -----

r var.F RV EAtm 89 fSJ-u rm iisniANA-Tem Adams. C discussed this with the cessanssica. Commissioner MsAsesor soewed to approve t Indian Assirs and ds skuu Vausy send of Goshute In susanded the monias. All concurred.

2.

Ronde Departranet, discussed this with the Cosrweissio PeelAs West beoppsowed since it was the only bid received. Commissioner McArt fbr a total of$420,000.00. moved to asesyt the bid Assa PestSe West for $11.90 pe Comunissieser Hessicar seconded the met an. AU concurred.

3.

ACCEPTANCE OF arft NOR FY#'AVATfnN ON FAtis? EnAh Roads f%-enent, discussed this with the Cesemissian. He asked ther the bid hornR Enghed Construst en be approved sinne it was the low bid. c-moved to approve t u Idd subseiend by Englead c^r_

Goa for Excaveelon ofTsust

--McArthur Road for 85d,290.0L e---

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_ Hunseher seconded the motise. All concurred 4.

ETATE BE4MD D EFEfMON COWfe AQ Togn Adams. Chief Deputy $beriff discussedthis wink da Stele Breed Inspection Centrast with thee--- - '. _ Commissisest McArthw moved to a Cowdy. CeaunledoostHimsaber -*h J

^ f Agdcuhwe & Food and Tooels o

the moden. AU conewred.

5.

PantnaA t To r=-4.imUCTiin as AT Tut u.a mwT PEAw enusir av Toa..-i isAresT Anrrari i - wn=wv wA;;;- To myrnr nmen Enerr:n.; x.. ar ei-.---= cmAwn sTAwna m Arr.st zia Aii.,ney Ahherum dimenssed this with the Camassmen. The psopesel is to sensensst inuna ht Ow Dessen Fesk Compiest sad to esser ises a omstreet with Korky Wervea no psovide used equipass, bisschem, pool mands, reus, ets. Atemeney Ahheern samlad that this would be eensidered a sole sewee simme h is used equipnmut. e

~ E McAtthur moved to appseus sonstrustium ofisuus at the Deserel Peak f"a=p1== and le enter into a costreet l

with Kesky Werven to provide used espdpuneet for the Deseret Peak Complex. To waive the bidding procedures and deelsse it a sole asures psejen for thsee items. Commiss Hansehm sneended the sneelen. AU eservered.

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uni== Awoorerrwaa i.. n.= A my me Amh P--

" :McAnhursoeved Allen to fWE des conspised term of Karas Wright. r====1h H the unstlem. AU eensened, s

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o.mo--nan A..._

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Bh a spur Bedse 82,000 for the 4th of Jety Redme, eH, suns,,,,,ed to de,ess to e,e n 't. MeArthur seconded thesnellen. Allesaceaed.

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Fnomrr Ehn in A T-

. I.ANDP111 Stan Engh, LandAll asked sat he b3 authonasd to purchase another landar for &c LandA11 Comsdseleest McMhw seeanded the maties. All concurre r

3.

9.

TMVOICIA Coussissioner McArthur neoved to approv on-adedthesmoties. Allesmeerrei 10.

M Comadsmisaar McArthur movsd to adjourn the mesdag. Commissioner Hussaker sneended the motion. A!! caneurred.

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EXHIBIT 2 I

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l EXHIBIT 2 MINUTES OF THE REGULAR MEETING OF THE 8

i TOOELE COUNTY BOARD OF COMMISSIONERS HELD JUNE 23,1998 l

p.m.11e cimk emiled essell which showed commini Or!Him and Lois McArtinrpsumet. The tiens, plese and assada of the meeting soples of the meties and asseds at least two days before to e I

een Denstu Rwing, Clark, was sasased.Also presses were Dangles Ahlstress, Astarn 1.

IndIMUTER. #

r'a===3==an asseing held Jane 16. I998, f-_ M-'.T. w moved to approve the minans of t Alloonsumed.

-* '- - Hussakar "ad he anonen.

t 2.

FEBRANNEL ACTIONS-Sherrie Ahlstrom, Heshb ;_-..;, samled that the H Depermeant has maalved a nevr emanect hem the Sets for Metsmal C ealth Preventies sad erilb lhet centract they asked that a half-tiras persas he hired to proyees. The Hrehh Deparemmat weeld like is move Rish tayton, who is a half time poseen m4th ths Health Departmast, to a fbil time person. Also with the Abderal fund they ressive they would Mhs te move Mena, a tierk in Weedover born part dra esos quarter tiene sessus. Be cut the positions would be ou$ posinens me fedarelly fonded and irihe thods were ever so changes fbr the Health P;?t. Casimismener McArthuresoved to approve the personnel

, abanging Rich Layton to a full time position and screasing the clerk in Wendover, Maria, hem half tiene status to three quarter tirne status, e-UN Grialth p===d=8 the menon. M somswred.

3.

IMMQg38,e--'"

1998 in the ameest af 5442 g30.54. #982970 thnmuk 9981130;_ Oriftlih m alas weerants issued on hne 19,1998 la the moeunt of 8803,304.f6 W983131 thsough #9:3262.

Ca====== laser McArthur semonded the mealse. All asmsweed.

4, nEgE)tET l PEAK COREPLEE. Mask McKendrick, pesks & *n for the sound system At the Deesset Peak Complan. The enginess's==al===*= for the

_ e, presented bide syseum was appnadmeemly $29,000, the low hid sans la at 154,000.

Ces ofdue major ressess seems to be the shahis of the hid.11 n systman needs to be Installed in ihne for the l

fair whink is e lhde over a mesh unwy. Mark sesessend resting a sysian ist 3700 to g them through the thir med than leek a peessassig esses mese closely. Comunissiege Orifade seemed to appnne seudug a sysmen for the Desuet Peak Campism ier the falt and to sesvalems the bids and leek at the tisme grases is vehid d a laeur thee, c

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MnAmenersecondedthemotise. Alleensursed.

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rnnerm van : vv==emariu m.a.cArm m=

Attorney Ahlmrom dassessed stes soutests th 8la f====i==i== which the hosystal board had receaunended be appeweed. He samed that he had dismesed the contraces pertaisdag to Sus Messiel a Oeerge Vergyes widt Mr. Bob Handles of Casemadty Health Systems and he seted ihm i

he weedd hamar ihn sonenses if they punhase the hospital. F-h4cAsthur noved i. e, parve em pseendessi sev6.us Aemesse whh see unwiel sad Dr. vagas.

ca t-OnHkk smeesdod theassion. AM eussered.

i P-i M M Yue heept=l h05d. He mek tids appetimity to thmik thoes miember of the board wbe have served the emmsy well en the hosphat board He appeisnad new bened siembau es follows:

Denna Mar =.adar se septase 3d St. Clair Due Asbetumi. m repless Lynn Wysa i

EXHIBIT 2 a

Dr. Richani Andersen to replace Virginia Caldwell Eid Hullingst to replace Kathless GriNish Bob Ehleide to replace Jim Gomaas Tharu la sdll a vesency of two amats at the request of Commmuty Health Madimm's and Ray Carraler's samt'.;).C"-^'-

McArthur rooved to approw the appointasmas. r--

- - - GriSth seconded the motion. All concurred.

6.

FINE W WFA#f40.*rn W ; e T1st G... fiat TMfWr: WA> Oy Tontr e CaiT,.m de

-~-. n A PnRTION of P=o;-E TVIN 1 Atrt paid ykOM am_1 re Aw c.n yr a..a===ensAsiod e -- -a

, Hianssker opened the public huertas. Thesein ansedamse were: Mark uw- ' >. Maggle Wlhic. Jeff Schanakst and ValSamaras. Nisale Cline. '* ;'

4h this anne ehenge with the %--i-l==

r One altisen asked what a CH asas win allow far. Nieele stated ther a CH anse asenes samumarcial highway sad allows ihr tiness cesrunsreial!ndestrica that meter to the mangling pukhs. No other=====*= were ofEured by the public.

Commensaloner MsAr; bur moved to close the public hearing. C "

semanded ibe motloa. All concared.

-_ OriRiih 7

OthThrAldet mR.10. A h.T.wi4MC u ng:

OFFfcIAt ROM 1NC MAP OEr TOGEI E c6imi vi an-s-a --TAnw 7:n-a-, i rw LAtee scrisi ranes nm.t TQ CH. Commissioner Griffbh moved to approve Ordiosene ps.19. Amending the otScial Zaeing Map of Tosele Coussy; Ramanies Cartain PmpartyIn Lake Point From M*I to CH, e- --

_ MaArthier secaided die amotten, AD esucissed.

3.

D*mMANCE REYtafGNE : fii ; R uan As A TGGEi R cotTWW rnwinn c;.v Are E 11rr erAarnAans Attoresy Ahlsesan stand that before this can he asInd 11 pen, a public heartas needs to be held. Coundselenar McArtimr mered to mids the Ordlanase Revislans. e allosocorred.

c f_ ' _ OrinHh seconded the motion.

9.

CDiffEAc7 BEVIEW. A) Castreet #97 0601 County Brandinspection has ao further need forlaspeeden. B) Camerest #97 0642. Cooperatin Laer Enfesoament.

Skall Valley osehgess: C) Ceament #97 0605. Jail Agr====it. Tooele County -

Tooela Chy; D) c=====* #f7 07 02.lassdesel Casparasion.A z.Impest Fec Collastles Servlees. N7CirD wlR ell be avissed again asut year.

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h = = 1 m**aa""=Tm Amera AMR (7.^.d{JMif ATih Tamala Camsaw Fair Rid. ch GrifEdi pressmand bids sessised for the thlt beaks and postem. The law hid amms Auss the homesdyt Bellatis. Ca-d=sia--

ontaik mesed is approve es bid een to Tm sedyt sunata.

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t Mauseamse Mispetussen Fasuity. The low bid was assa anedes & anandis for slosJion.on. r - -t-i

- onshh sm.ed a rd n= hid to annues a mandie.

r===8-d-== MaAnther sesended ibs meties. All esecured.

i fann-Ja==== GriSth Secussed lesalag the asustais top as Send Mountain and i

ascaing atowerihrbaner esesmunisashew dwing an emaronesy He snowed to approve tbs tids for the tower $15,980 (usesrials not arosden) and for tbs Conr-a+dla==

Egalpensat Shahar IM,153 (plus shippes). The tids woes Aem ths **

,, 2 list.

nom wul bo paid an weni FEMA Aeds. Pa=ih MsArts seconded de moden.

AR esaserved.

sm-.-.=a. n--i p-=s Ar.arasy Ahlsensa has reesised na lavolos Assa Paomenic Cu "

-tu $379s.33 forlegal fase to done I

c--=a-i--- noseks moved = have - -n-(ihey were sued by Crossleyt e

i -- odshb alm tha levaies in Essammie tp '.

^ at their aus ammating, disens it, snans the psoposal that Ibsy pay tbs him ud tan 1he sounty wit relahume Econsanc h. " ;-

, also to ame if tids gets

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M outof the sinwine r -t 1-gg seconded the motion. All

ennemand, WandsmarAltmart Annemeyhw.

TWs hans hepa 18-

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RJ Y 7,1998 BY x 4~;

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