adams update - vintage request for comment, page-14

Frogga,

As you have asked so politely, I will come out of ‘retirement’ for just one final comment on this matter.
These Hearing related documents from NRDC (and PRBRC) tell you everything you need to know about the intervenors’ approach to the intervention.

First and foremost, they tell you that NRDC is entirely unimpressed with the FSEIS – that it has not addressed or met any of their concerns. I know many here had hoped that the FSEIS would do just that – demonstrate to NRDC that environmental controls would be sufficient to mitigate any harmful environmental consequences perceived by NRDC and that they would happily withdraw their intervention. We now know that will not happen.

Instead, they appear to have upped the ante. They have marshalled considerable resources in this motion to ASLB to have the previously admitted contentions migrated to the FSEIS (from the DSEIS). They are also seeking to have 2 new contentions admitted plus readmission of their contention on cumulative impacts (that was originally admitted, in March 2012, but denied migration to the DSEIS later in 2012).

It seems they have taken note of the ASLB’s Aug 27 2013 denial of their cumulative impacts contention on the following basis :

“the Board explained that in light of Intervenors’ “legal and technical resources,” it was incumbent upon them to fully explicate how each factor is satisfied, and, having failed to do so, the Board would not allow the contention to be admitted”

So they have, this time, engaged additional scientists, commissioned detailed research statements from them and have attached far more detail to their contentions than in the past.

We now wait to see whether or not ASLB will migrate the existing contentions and/or admit the new ones. That decision will then set the agenda for the 6-month lead-in to the actual Hearing in October.

As HS, Col and Zubana have correctly observed, the NRDC’s motion will have no impact on the issuance of the SML. That is only subject to satisfactory completion of the S106 PA document and rubber stamping by EPA. The Hearing process has no impact on that.

However, and this is a key potential hurdle, the Hearing process can effectively shelve the SML. Under the Hearing rules, the intervenors can seek a stay on mine construction for up to 5 days following Federal Register notification of SML issuance. That is, up to 12 Apr, under the current schedule.

Based on the NRDC’s intent, so clearly articulated in the motions and scientific statements (posted on Adams), I would be very surprised if they do not seek a stay. They would, in my view, recognise that it would be much harder to delay the project following mine construction than before.

If they do seek a stay, the ASLB may or may not approve it. If they do, Strata will no doubt appeal the decision. They may or may not succeed in that. If ASLB do not grant the stay, NRDC may seek legal redress outside the ASLB system etc etc.

In effect, all the ‘toot, toot, we have the SML, get on board’ posts are a tad premature. Simply because the SML would not be implementable with a stay in place - and, if granted, not implementable until at least October 2014.
Maybe (in order to avoid excitement ‘deflation’) the ‘toot toots’ should be held over for confirmation that no stay is sought – or is sought, but denied. That is, until around Apr 12 .

I note that Zubana observed that : “I have no doubt PEN would have the required experience within their legal representation to assess the true risks here, and to take preemptive action in the event this is a real concern”
However, there is not correct. There is no pre-emptive action that can be taken – other than fully meeting the concerns of NRDC, but that is out of their control. It is, rather, a matter of following due process, according to the ASLB rules and regulations. And Strata’s legal team is very well versed in those, as is the NRDC’s.

As to the timing of the SML, an NRC letter to Mike Griffin was posted on Adams overnight. It is dated 31 March and concerns the dispute re the expansion of land subject to the S106 PA. The correspondence contains the following 2 sentences:

“Information provided by Tribes on the nature and significance of sites is confidential and the NRC has not received permission from these Tribes to share this information with Strata. Similarly, information provided by Tribes on the nature and significance of sites is contained in the field notes, technical reports, and consultation records that you have requested in your February 21, 2014, letter and the NRC has not received permission from these Tribes to share this information with Strata”.

“Strata does not have a role in consultations on the National Register of Historic Places (NRHP) eligibility of sites of religious and cultural significance to Tribes. NRHP eligibility determinations for sites of religious and cultural significance to Tribes are made by the Federal agency and Tribes knowledgeable about religious and traditional cultural properties. The process of consultation on properties of concern to Tribes identified during the Tribal field survey has not reached the stage when Federal agencies consult license applicants on effects and mitigation of effects”

It is clear from this response that Strata will just have to cop what they see as an expanded area subject to the PA, if they want the SML issued next week. If they want to dispute it, delicate and drawn-out negotiations will be required with tribes and the NRC. I would expect that Strata will just cop it – and deal with the issues further down the track if and when they arise.

Anyway, all the best frogga! Back to ‘retirement’ for me.