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Appellants Notice of Appeal of the classification decision issued on 4/25/00 by the NM Enviro Dept granting Class 1 Modification of WIPP.

May 2, 2000

IN THE COURT OF APPEALS
STATE OF NEW MEXICO

SOUTHWEST RESEARCH AND
   INFORMATION CENTER, DARA MARK,
   and WAYNE GIBSON,
         Appellants,

                 vs.              No. 21293

NEW MEXICO ENVIRONMENT
   DEPARTMENT and PETER
   MAGGIORE, Secretary,
         Appellees.

MEMORANDUM IN SUPPORT OF APPELLANTS
MOTION FOR A STAY

This Memorandum is submitted by the Southwest Research and Information Center ("SRIC"), Dara Mark, and Wayne Gibson ("Appellants") in support of their Motion for Stay. On May 2, 2000, Appellants filed their Notice of Appeal of the classification decision issued on April 25, 2000 by the New Mexico Environment Department ("NMED") granting a Class 1 Modification changing Permit Condition IV.B.2.b. of the Hazardous Waste Act ("HWA") permit for the Waste Isolation Pilot Plant ("WIPP").

The appeal is being brought because NMED has reversed, without public notice and public hearing, a fundamental provision of the WIPP permit, which was subject to a multi-year process that included 19 days of public hearings, in violation of the HWA requirements for a public hearing on "major modifications" and a public hearing when there is "significant public interest" in "minor modifications" to HWA permits. NMSA, § 74-4-4.2.H and I.

Appellants respectfully request that this Court stay the effectiveness of the Class 1 Modification pending disposition of the appeal. Without such a stay, appellants will suffer irreparable injury because there was no public notice, comment, and public hearing as required by statute, and mixed radioactive and hazardous waste can now be shipped to WIPP and disposed in Panel 1. A stay is in the public interest because the New Mexico legislature has required public notice, comment, and hearings as an integral part of the HWA regulatory process "to help ensure the maintenance of the quality of the state's environment; to confer optimum health, safety, comfort, and economic and social well-being on its inhabitants; and to protect the proper utilization of its lands." NMSA § 74-4-2.

Appellants filed a motion for stay on May 11, 2000, which the Court denied on June 16. Pursuant to that Order, Appellants are refiling this Motion for Stay, as the NMED denied the SRIC request for a stay on June 30, 2000.

FACTS

  1. The WIPP permitting process took more than four years.

    WIPP has been put into operation by the U.S. Department of Energy ("DOE") for the permanent disposal of extremely dangerous transuranic radioactive waste that also contains hazardous waste. On May 26, 1995, DOE and Westinghouse Waste Isolation Division (the operating contractor for WIPP) submitted a revised HWA permit application. That began a multi-year process that culminated on October 27, 1999, when NMED Secretary Peter Maggiore issued the HWA permit for WIPP. The permit became effective on November 26, 1999.

    The permit issuance was the culmination of one of the most lengthy and complicated permitting processes that NMED ever carried out. The process included several revisions to the application, issuance of a draft permit on May 15, 1998, extensive public comment thereon, issuance of a revised draft permit on November 13, 1998, upon which dozens of people submitted written comment, a public hearing in Carlsbad and in Santa Fe, during which more than 150 citizens testified, 19 days of sworn technical testimony by 23 witnesses from February 22 to March 26, 1999, issuance of a 104-page report by the Hearing Officer, and submission of proposed findings of fact and conclusions of law, comments on the report, and other pleadings by various parties, including appellant SRIC. The entire record is more than 300,000 pages.

  2. Permit Condition IV.B.2.b is one of the most important provisions in the permit because it prohibited the disposal of mixed waste in Panel 1.

    NMED's Hearing Officer considered Permit Condition IV.B.2.b. "[p]erhaps [the] most controversial and provocative issue raised in the proceeding." Report of the Hearing Officer, September 9, 1999 ("Report"), at 72, attached as Exhibit A at Ex. 1. He stated that the condition "is necessary to protect public health and the environment is beyond serious dispute." Id. at 75. He also stated that the condition meant that DOE "could not dispose TRU mixed waste" in underground rooms of Panel 1 because that panel already contained waste not characterized in accordance with the requirements of the Permit. Id. at 79. The Report included nineteen findings of fact (pp. 49-53, ¶¶254-272), eight pages of narrative discussion (pp. 72-79), and eleven conclusions of law (pp. 97-99, ¶¶ 46-56) related to Permit Condition IV.B.2.b. Exhibit A at Ex. 1.

    Permit Condition IV.B.2.b. as recommended by the Hearing Officer provided as follows:

    Specific prohibition - after this Permit becomes effective, the Permittees shall not dispose non-mixed TRU waste in any Underground HWDU unless such waste is characterized in accordance with the requirements of the WAP specified in Permit Condition II.C.1. The Permittees shall not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU contains non-mixed TRU waste not characterized in accordance with the requirements of the WAP.

    Report at 103 (emphasis in the original). Without the jargon, the second sentence means that DOE cannot dispose of mixed hazardous and radioactive waste in any underground hazardous waste disposal unit, if the unit already contains non-mixed, i.e. pure radioactive, waste that was not characterized in accordance with the waste analysis plan specified in the permit. The Hearing Officer recommended the addition of the phrase "after this Permit becomes effective" because the permittees had already disposed of waste in existing Panel 1 at WIPP that was not characterized in accordance with the permit, and they feared "that NMED intends to pursue a permit violation action immediately upon issuance of the permit." Report at 78. Importantly, the Hearing Officer specifically stated:

    And, of course, Applicants could not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU already contains TRU non-mixed waste not characterized in accordance with the WAP.

    Report at 79; emphasis in original.

    The Hearing Officer made numerous findings of fact that supported this conclusion. The "disposal of significant quantities of waste that has not been characterized in accordance with the WAP [Waste Analysis Plan] poses a direct threat to human health and the environment." Report, Finding of Fact ¶ 262. The Hearing Officer found that DOE had previously committed to not dispose of any waste prior to the receipt of the permit, id. at ¶¶ 256 and 257, and that commitment was consistent with the DOE permit application in which DOE repeatedly committed to characterize all waste, mixed and non-mixed, "as if it were mixed," id. at ¶ 255. The Hearing Officer also found that DOE informed NMED only after the draft permit was issued that it would dispose of non-mixed waste in WIPP prior to issuance of the permit. Id. at ¶259. He further found that Permit Condition IV.B.2.b was imposed after consideration of public comment. Id at ¶260. The NMED Secretary in his Final Order explicitly incorporated these Findings of Fact. Exhibit C at 3.

    On October 13, 1999, following issuance of the Report of the Hearing Officer, NMED Secretary Maggiore re-opened the administrative record to allow all parties to respond to the following question:

    Does the prohibition regarding disposal of TRU mixed waste referenced in the second sentence of Permit Condition IV.B.2.b. apply to waste disposed of prior to permit issuance?

    Amended Order issued on October 14, 1999, attached as Exhibit A at Ex. 4.

    DOE argued that the second sentence of Permit Condition IV.B.2.b. "is ambiguous" and should be changed to make it clear "that the second sentence applies only to non-mixed waste disposed of after the permit is effective." DOE and Westinghouse Response to the Secretary's Question Regarding Permit Condition IV.B.2.b at 1, attached as Exhibit A at Ex. 5. In other words, although DOE had disposed of waste in Panel 1 not characterized in accordance with the HWA permit, it wanted to be able to dispose of mixed radioactive and hazardous waste regulated by the HWA in Panel 1. Accordingly, DOE proposed a revised second sentence:

    The Permittees shall not dispose TRU mixed waste in any Underground HWDU if the Underground HWDU contains non-mixed TRU waste which was disposed of after this permit became effective and was not characterized in accordance with the requirements of the WAP.

    Id at 3 (emphasis added). The Secretary did not adopt DOE's suggested language. The language of Permit Condition IV.B.2.b remained unchanged, and the permit was issued.

    The language of the Class 1 modification, which became effective as stated in the NMED April 25 classification determination, however, is exactly the same as that previously proposed by DOE and rejected by NMED. Language that was specifically considered and rejected based on an extensive administrative record. Language that was rejected because DOE had made a major and substantial modification to its permit application, after the draft permit had issued and the public hearing commenced, by disposing of waste before it had a HWA permit, contrary in its often repeated commitment that it would not do so. A fundamental and critical change that necessitated Permit Condition IV.B.2.b.

    DOE expressed two concerns about Permit Condition IV.B.2.b that were addressed by the Hearing Officer and the NMED Secretary. First, the Final Order clarified that Permit Condition IV.B.2.b would not lead to enforcement action because waste was disposed prior to permit issuance pursuant to a federal district court decision in New Mexico ex rel. Madrid v. Richardson. Second, the Final Order clarified that DOE would be able to continue to dispose of non-mixed waste in Panel 1 so long as it was characterized in accordance with the permit. The Secretary's Final Order did not reverse the Hearing Officer's conclusion that Permit Condition IV.B.2.b prohibited mixed waste disposal in Panel 1 because it already contained waste not characterized in accordance with the permit.

  3. Permit Condition IV.B.2.b was substantially modified with no public notice, comment or hearing.

    On April 18, 2000, this Court approved a Stipulation between DOE and NMED that provides that "in the event of any of the permit modification requests, as submitted and classified by DOE, are determined by NMED to have been improperly classified or if NMED fails to issue a classification determination within seven (7) calendar days after receipt of DOE's modifications, either party shall have ten (10) working days after either of these events to petition this Court to lift the stay as to all modification requests." Order at 2. Exhibit D.

    DOE submitted its modification request on April 20, 2000. Exhibit E. Thus, NMED was required by the Court's Order to issue a classification determination by April 27, 2000. That classification determination would be made in accordance with NMED's regulations, 20 NMAC 4.1.900 (incorporating 40 C.F.R. § 270.42(d)). Stipulation at 3. Exhibit F.

    Before making its final decision on April 25, 2000, NMED did not provide any public notice of the request, and it did not conduct a public hearing. NMED also apparently ignored 5 pages of comments submitted on April 24, 2000, by Appellant SRIC, which included exhibits totaling 80 pages of the permit hearing record regarding Condition IV.B.2.b. Exhibit A.1 NMED also ignored the telephone requests of three citizen groups -- Nuclear Watch of New Mexico, Concerned Citizens for Nuclear Safety, and Citizens for Alternatives to Radioactive Dumping with memberships of more than 10,000 people who had opposed the Class 1 modification. Exhibits G, H, and I.

    The modification of Permit Condition IV.B.2.b now allows mixed waste to be disposed in Panel 1 at WIPP, even though Panel 1 contains waste not characterized in accordance with the permit. This reverses the prohibition against such disposal that was previously contained in Permit Condition IV.B.2.b. The effect of the modification is also to make the second sentence of Permit Condition IV.B.2.b. superfluous since it now has no applicability to any waste or any underground disposal unit at WIPP.

ARGUMENT

A Stay of the Effectiveness of the Permit Modification is Merited Because NMED Violated the HWA by Denying the Public its Rights to Notice and Hearing on a Major and Controversial Change to the Permit.

The HWA provides that "[n]o ruling shall be made on permit issuance, major modification, suspension or revocation without an opportunity for a public hearing at which all interested persons shall be give a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing." NMSA. § 74-4-4.2.H (emphasis added). The statute further provides that "[t]he Secretary shall hold a public hearing on a minor permit modification if the secretary determines that there is significant public interest in the modification." NMSA § 74-4-4.2.I (emphasis added).

There was no public notice and no opportunity for a public hearing for the modification to Permit Condition IV.B.2.b. Nor has the Secretary explained why he denied a public hearing in light of the significant public interest in this major and controversial change to the permit.

The court of appeals shall set aside the Secretary's action if it is: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law. NMSA § 74-4-14.C. Here, the Secretary modified a term of the permit that NMED itself had characterized as major and critical.

The Secretary reversed his determination regarding Permit Condition IV.B.2.b, and then pretends that it is a minor change not subject to the HWA. The facts are: 1) the Hearing Officer advised the Secretary that Permit Condition IV.B.2.b presented perhaps the most controversial and provocative issue in the public process, 2) the Secretary explicitly approved that finding and all other findings related to Permit Condition IV.B.2.b in issuing the HWA permit, and 3) the concerns and opposition to the modification expressed by SRIC, Nuclear Watch of New Mexico, Concerned Citizens for Nuclear Safety, and Citizens for Alternatives to Radioactive Dumping, provided the Secretary with uncontrovertible evidence that there is significant public interest in the modification.

The standards for determining whether to stay an administrative order pending appeal are: "(1) a likelihood that applicant will prevail on the merits of the appeal; (2) a showing of irreparable harm to applicant unless the stay is granted; (3) evidence that no harm will result to other interested persons; and (4) a showing that no harm will ensue the public interest." Tenneco Oil Co. v. New Mexico Water Quality Control Comm'n, 105 N.M. 708, 710, 736 P.2d 986 (Ct. App. 1986). All are met here.

  1. The appellants have a substantial likelihood of success on the merits.

    1. Public notice and hearing required by the Legislature in the HWA were not provided prior to the modification becoming effective.

      It is uncontroverted that NMED did not provide public notice, an opportunity for public comment, or a public hearing on the DOE Class 1 modification to Permit Condition IV.B.2.b, as required by the HWA. NMED will now allow the disposal of mixed radioactive and hazardous waste in Panel 1 at WIPP, which already contains waste not characterized in accordance with the permit, and it will do so without providing for any public participation in this major and controversial change.

      Pursuant to the HWA, NMED must hold a public hearing at which all interested persons are given the opportunity to submit data, views, and arguments and to examine testifying witnesses for modifications that are "major." NMSA § 74-4-4.2.H. The modification involves a matter that NMED itself characterized throughout the permit hearing as fundamental, critical, substantive, and major. NMED prohibited the disposal of mixed radioactive and hazardous waste in any underground unit at WIPP that contained waste not characterized in accordance with the permit. DOE opposed Permit Condition IV.B.2.b throughout the permitting process, and filed suit in federal district court and this court to challenge the permit condition.2 Now NMED will allow the disposal of mixed waste in Panel 1. It has reversed itself on a key term in the permit. If the prohibition of the waste disposal was a major and substantive provision, the modification, which now allows the disposal, cannot be appropriately characterized as minor.

      Even if the change in Permit Condition IV.B.2.b. is a "minor modification," NMED abused its discretion by not providing for a public hearing. NMED's Hearing Officer in his Report to the Secretary described the provision as perhaps the "most controversial and provocative issue raised in the proceeding." The Permit Condition was imposed in response to public comments, and it was the subject of intense public interest after it was included in the revised draft permit. The Secretary has ignored the demonstrated public interest and deprived the public of its right to a public hearing for minor modifications for which there is significant public interest. This was arbitrary and capricious and an abuse of discretion. Perkins v. Department of Human Services, 106 N.M. 651, 655, 748 P.2d 24 (Ct. App. 1987) (an abuse is established if the agency did not proceed in the manner required by law, the order or decision is not supported by the findings, or the decision is contrary to logic and reason).

      The New Mexico Legislature provided in the HWA for only two types of modification -- "major" and "minor."3 Whether a modification is classified by regulation as "Class 1," or "Class 2," or "Class 3," it must be either "major" or "minor" under the HWA. The HWA does not provide for any other type of modifications. The modification to Permit Condition IV.B.2.b must be either a "major" or "minor" modification. If it is "major," the HWA requires a public hearing. If it is "minor," significant public interest has been expressed, and the HWA requires a public hearing. NMED failed to comply with the statutory requirement for a public hearing.

    2. The NMED's April 25 classification determination was a final agency action that is appealable under the HWA.

      In its Classification Determination issued on April 25, 2000, NMED stated that the modification "has been put into effect." Exhibit J at 2. Nonetheless, NMED's argues that SRIC's request for review of the proposed Class 1 modification, filed April 24th, prior to the decision rendered by NMED and prior to the date NMED was required by the Stipulation and Order to finally decide the matter, delayed the agency's final decision.4 This argument ignores the practical finality of the NMED's April 25th decision. NMED's decision implicitly rejected SRIC's prior request for rejection of the Class 1 modification in issuing its April 25th decision. NMED issued its decision, without referencing or indicating that it had taken SRIC's request under advisement. Further, NMED was compelled to make its decision by April 27, 2000, pursuant to this court's approval of the Stipulation and Order approving the same, or DOE had ten days to seek redress. NMED's April 25th decision was final as to DOE's legal interests, and as to the rights of Citizen Appellants. That final decision clearly, under practical and legal considerations, disposed of DOE's and Citizen Appellants rights, and meets the final agency action provision of the HWA § 74-4-14.A. A final order is commonly defined as an order that decides all issues of fact and law necessary to be determined or which completely disposes of the case to the extent the court had the power to dispose of it. B.L. Goldberg & Assoc., Inc., v. Uptown, Inc., 103 N.M. 277, 278, 705 P. 2d 683, 684 (1985), emphasis added. "The test of whether a judgment is final so as to permit the taking of an immediate appeal, lies in the effect the judgment has upon the rights of some or all of the parties. "Kelly Inn No. 102, Inc., v. Kapnison, 113 N.M.231, 236, 824 P.2d 1033, 1038 (1992). "Additionally, New Mexico law on the finality of judgments is clear that the term `finality' is to be given a practical, rather that a technical construction." Id. Clearly, the April 25 decision was final agency action as to making the Class 1 determination, pursuant both to the Court's Order of April 18 and to NMED's regulations, 20 NMAC 4.1.900 (incorporating 40 C.F.R. § 270.42(d)).

      Moreover, the Secretary's May 10, 2000 letter to SRIC was not final agency action regarding the Class 1 modification. NMED's regulations provide that any person "may request" a review. 20 NMAC 4.1.900 (incorporating 40 C.F.R. § 270.42(a)(iii)). The regulations do not require the Secretary to respond to the request for review. The logic of NMED's position is the absurdity that if the Secretary never responded to a request for review, there would never be final agency action.

      Regarding whether the final classification determination is appealable, NMED admits that its regulations do not provide for [administrative] appeals. NMED Response in Opposition to Appellants Motion for Stay, filed May 25, 2000, at 9. The U.S. Environmental Protection Agency Environmental Appeals Board cases that NMED cites do state that there is no administrative review process to EPA [or the state agency] for a Class 1 modification classification determination.

      Of course, the regulations and Environmental Appeals Board decisions relate to the administrative review and appeal process. They do preclude not judicial review under the HWA. It provides that any affected person may appeal "any final administrative action." NMSA § 74-4-14.A.

  2. Appellants will suffer irreparable harm if the stay is not granted because their views were not solicited and responded to before mixed waste can be disposed in Panel 1.

    In the absence of a stay, DOE will begin shipping mixed waste to WIPP and emplacing it in Panel 1 even though there has not been a public hearing.5 Appellants SRIC, Dara Mark, and Wayne Gibson, along with organizations representing thousands of other New Mexicans who expressed interest in the Permit Condition and the modification, were denied the opportunity for a public hearing before such a modification became effective. The HWA clearly shows that the New Mexico Legislature intended that a public hearing be held prior to the agency's decisions affecting public health so that public views and concerns must be considered before a decision.

    Shipments of mixed waste will traverse hundreds of miles of New Mexico highways, including U.S. 285 in Santa Fe County. DOE could begin shipping mixed waste to WIPP with little notice to NMED and no public notice.6 Appellants Dara Mark and Wayne Gibson live and own property that borders on U.S. 285 and they travel that route every day. Shipments of mixed waste to WIPP will diminish their property values and affect their livelihood. They were provided no notice of the change in Permit Condition IV.B.2.b, and they had no opportunity to present their concerns to NMED. Affidavit of Dara Mark and Wayne Gibson Exhibit L. The harm from unauthorized highway shipments of mixed waste is irreparable if the modification is not stayed.

    Appellant SRIC has participated actively throughout the WIPP permitting process, including submitting comments, sponsoring five witnesses during the technical testimony at the hearing, and contesting issuance of the permit. SRIC staff, supporters, and board of directors rely on SRIC to participate in the public permitting process required by the HWA. Affidavit of Don Hancock, attached as Exhibit M. SRIC and its procedural rights to offer comments will be irreparably harmed if NMED is not required to follow the mandated public processes so that technical arguments and public concerns in the modification are presented to and considered by the agency prior to its making a decision.

  3. A stay will not substantially harm other parties.

    NMED will suffer no harm if a stay is issued. No other party will be harmed. The DOE has been shipping non-mixed waste to WIPP from the Rocky Flats Plant in Colorado pursuant to the permit since March 11, 2000. DOE is continuing to seek and receive approval for shipments of non-mixed waste from Hanford, Washington, and the Idaho National Engineering and Environmental Laboratory. Permit Condition IV.B.2.b allows such shipments and Appellants have not contested that the condition allows such shipments. The requested stay would not affect continued shipments of non-mixed wastes, as it prohibits only shipments of mixed waste to WIPP for disposal in Panel 1.

  4. The public interest supports granting the stay.

    The HWA specifies that there must be an opportunity for public hearing on a major permit modification and that a public hearing much be held on a minor permit modification if there is significant public interest. The public has clearly expressed its interest in the modification. In addition to SRIC, Dara Marks, and Wayne Gibson, three other New Mexico-based citizen organizations -- Nuclear Watch of New Mexico, Concerned Citizens for Nuclear Safety, and Citizens for Alternatives to Radioactive Dumping -- that represent more than 10,000 people clearly expressed their concerns about the permit modification. Compliance with the requirements of the HWA is in the public interest.

CONCLUSION

Appellants are likely to succeed on the merits because the Class 1 Modification to Permit Condition IV.B.2.b. was issued without public hearing in violation of the HWA. Appellants will be irreparably harmed if a stay is not issued, and the previously prohibited waste disposal occurs without the required public process. No other party will be harmed if a stay is issued, and the public interest supports granting a stay. Accordingly, this court should issue a stay pending resolution of the appeal.


FOOTNOTES

1SRIC can only conclude that comments were ignored since they are not mentioned or referred to in the April 25, 2000 classification determination.

2On November 16, 1999, DOE filed a notice of appeal in this Court challenging Permit Condition IV.B.2.b. Case No. 20877, DOE Docketing Statement filed on December 30, 1999 at b(i).

3The HWA was enacted in 1977, and since 1981 it has required opportunity for a public hearing on modifications. In 1992, the HWA was amended include the current provisions.

4NMED's Response in Opposition to Appellants' Motion for Stay, filed on May 25 at 5-7.

5DOE provided public notice of the Class 1 modification on May 31, 2000, after the modification became effective. Exhibit K.

6For example, DOE shipped non-mixed waste from the Rocky Flats Plant in Colorado to WIPP on March 10, 2000 one day after it received approval (on March 9) for its Final Audit Report and submitted the required Waste Stream Profile Form. DOE shipped non-mixed waste from Hanford, Washington on July 12, 2000, one day after it submitted to NMED the Waste Stream Profile Form (on July 11). Once a site's Final Audit Report is approved, the HWA permit only requires that DOE provide the Waste Stream Profile Form to NMED prior to shipments of drums from that waste stream.


Respectfully submitted this 14th day of July, 2000.

________________________
Margot Steadman
105 Stanford, SE
Albuquerque, NM 87106
(505) 898-0638
(505) 262-1864 (fax)

     and

Kevin Ward
Harding, Shultz & Downs
1700 Lincoln St., Ste. 1800
Denver, CO 80203
303-832-4400
303-832-6154 (fax)
Attorneys for Appellants.


CERTIFICATE OF SERVICE

I hereby certify that on July 14th, 2000, I sent this Memorandum in support of the Motion for Stay by first-class mail, postage paid, to:

NM Environment Department
Susan McMichael, Paul Ritzma, Richard Mertz
PO Box 26110
Santa Fe, NM 87502

Mary Edgar and Wendy Blake
Environmental Defense Section
U.S. Department of Justice
PO Box 23986
Washington, DC 20026

____________________________
Margot Steadman.


LIST OF EXHIBITS

EXHIBIT A:   SRIC's April 24, 2000 Letter to NMED Secretary Maggiore

     Ex. 1 - Report of the Hearing Officer, September 9, 1999

     Ex. 2 - NMED's Direct Testimony Regarding Prohibition of Non-Mixed TRU Waste

     Ex. 3 - Reporter's Transcript of Proceedings

     Ex. 4 - Amended Order, October 14, 1999

     Ex. 5 - DOE's Reponse of October 20, 1999 to Secretary's October 13, 1999 Order

     Ex. 6 - SRIC's Proposed Findings of Fact and Conclusions of Law, Comments on Hearing Officer's Report, and Comments on the Secretary's October 13, 1999 Order

EXHIBIT B:   Reporter's Transcript of Proceedings, at tr. 2477, ll. 6-13
EXHIBIT C:   Final WIPP Permit Order, October 27, 1999
EXHIBIT D:   Case No. 20877, Order of April 18, 2000
EXHIBIT E:   DOE Notice of Class 1 Permit Modification, April 20, 2000
EXHIBIT F:   NMED/DOE Stipulation and Order Staying All Proceedings
EXHIBIT G:   Affidavit of Margret Carde
EXHIBIT H:   Affidavit of Deborah Reade
EXHIBIT I:   Affidavit of Joni Arends
EXHIBIT J:   NMED Classification Determination, April 25, 2000
EXHIBIT K:   DOE notice of WIPP Class 1 Permit Modifications, May 31, 2000
EXHIBIT L:   Affidavit of Dara Mark and Wayne Gibson
EXHIBIT M:   Affidavit of Don Hancock

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