HOLLAND & HART LLP A. John Davis, Utah Bar No. 0825 Christopher R. Hogle, Utah Bar No. 7223 M. Benjamin Machlis, Utah Bar No. 12585 222 S. Main Street, Suite 2200 Salt Lake City, Utah 84101 Telephone: (801) 799-5800 Facsimile: (801) 799-5700 AJDavis@hollandhart.com CRHogle@hollandhart.com MBMachlis@hollandhart.com Attorneys for Respondent, U.S. Oil Sands Inc. ______________________________________________________________________________ BEFORE THE UTAH WATER QUALITY BOARD In the Matter of PR Spring Tar Sands Project, Ground Water Discharge Permit-by-Rule No. WQ PR-11-001 COMMENTS OF U.S. OIL SANDS INC. SUPPORTING ADOPTION OF THE ALJ'S MEMORANDUM AND FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER September 12, 2012 Pursuant to Utah Admin. Code R305-6-215(2)(b), U S Oil Sands Inc. ("USOS") respectfully submits these comments supporting adoption of the ALJ's Memorandum and Findings of Fact, Conclusions of Law, and Recommended Order, dated August 28, 2012 ("Recommended Order"). COMMENTS USOS takes this opportunity to express its support for the Recommended Order and urges the Water Quality Board (the "Board") to adopt it in its entirety. As the Recommended Order provides, the Board's decision in this matter must correctly interpret and apply the law and be supported by substantial evidence when viewed in light of the record as a whole. See Recommended Order at 7 (citing Sierra Club v. Air Quality Board, 2009 UT 76). The only conclusion that meets this standard is the one reached in the Recommended Order - that Living Rivers is not entitled to its requested relief because the Division of Water Quality correctly determined that the PR Spring mine will have no more than a de minimis actual or potential effect on ground water quality. The ALJ's Recommended Order is entitled to deference because the ALJ scrupulously considered a voluminous record and experienced most of the witness testimony first-hand. Since March 16, 2011, when Living Rivers filed its Request for Agency Action, an extensive record has been compiled. DWQ's initial record is over 600 pages in length, the parties submitted more than 40 exhibits, and the transcripts of the pre-recorded witness testimony and the hearing exceed 500 pages. The ALJ had the unique opportunity to view live testimony of witnesses, observe the witnesses' demeanor while testifying, and see the witnesses illustrate their testimony with whiteboard calculations, charts, and diagrams, some of which, for logistic reasons, could not be made part of the record. In short, the Recommended Order is the product of the ALJ's careful scrutiny of a voluminous record, which the Board simply cannot repeat. Living Rivers complains that the ALJ admitted evidence that was not before the Executive Secretary, but applicable rules allowed the introduction of "any reliable evidence possessing probative value which would be accepted by a reasonably prudent person in the conduct of his affairs." Utah Admin. Code R317-6-213(b). 1 Living Rivers took full advantage of this rule and itself admitted hundreds of pages of exhibits and the testimony of two expert witnesses, none of which were before the Executive Secretary when he made the determinations that Living Rivers challenges. 1 Today, the rule more succinctly provides that "[e]very party to adjudicative proceeding has the right to introduce evidence" subject only to the Utah Rules of Evidence. 2 The record, when viewed as a whole, shows that Living Rivers cannot support its claim that the PR Spring mine will have a greater than de minimis actual or potential effect on ground water quality. In its Response to Recommended Order, Living Rivers takes liberties with the record and simply ignores the substantial evidence that supports the Recommended Order. In addition, Living Rivers mounts an improper and untimely challenge to the rule that the Executive Secretary implemented. See Utah Code Ann. ?? 63G-3-601 (providing requirements to contest a rule) 63G-3-603 (providing time limits to contest a rule). According to Living Rivers, projects that satisfy R317-6-6.2(A)(25) because they "have a de minimis actual or potential impact on ground water quality" (id.) should nonetheless be prohibited without a full ground water permit if they might have an effect on any accumulations of underground water. The ALJ was correct to apply R317-6-6.2(A)(25) as it was actually enacted, rather than as Living Rivers would have preferred it. In any event, the ALJ could find, on this record, that even such accumulations of water were lacking. The absence of ground water is enough, in and of itself, to dispose of Living Rivers' allegations. In addition, the record provides substantial evidence that, even if ground water existed in sufficient quantities to be impacted, Living Rivers still could not support its allegations that the PR Spring mine will have a greater than de minimis effect on ground water quality. See Recommended Order at 19. For these reasons, the Water Quality Board should adopt the ALJ's well supported and reasoned conclusion, and the detailed analysis upon which it is based. The weight of the evidence disproved Living Rivers' allegations that the PR Spring mine will have a greater than de minimis actual or potential impact on ground water quality. 3 Respectfully submitted this 12th day of September, 2012. /s/ Christopher R. Hogle Holland & Hart LLP A. John Davis Christopher R. Hogle M. Benjamin Machlis 4 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 12th day of September, 2012, a true and correct copy of the foregoing COMMENTS OF U.S. OIL SANDS INC. SUPPORTING ADOPTION OF THE ALJ'S MEMORANDUM AND FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER was served via e-mail, as follows: Walter L. Baker, PE Executive Secretary Water Quality Board 195 North 1950 West P. O. Box 144870 Salt Lake City, UT 84114-4870 wbaker@utah.gov Joro Walker Charles R. Dubuc, Jr. Western Resource Advocates 150 South 600 East, Suite 2A Salt Lake City, UT 84102 jwalker@westernresources.org rdubuc@westernresources.org Counsel for the Living Rivers Kimberlee Mcewan Assistant Attorney General P.O. Box 144840 195 North 1950 West, 1st. Fl. Salt Lake City, Utah 84114-4840 kmcewan@utah.gov Counsel for Water Quality Board Sandra K. Allen Administrative Law Judge skallen@utah.gov Paul McConkie Assistant Attorney General P. O. Box 140873 160 East 300 South Salt Lake City, UT 84114-0873 pmcconkie@utah.gov Counsel for the Executive Secretary Administrative Proceedings Records Officer 160 East 300 South Salt Lake City, Utah 84111 DEQAPRO@utah.gov /s/ Christopher R. Hogle 5756937_1 5