LEXSEE
597
F2D
306
SEACOAST
ANTI­
POLLUTION
LEAGUE,
et
al.,
PETITIONERS,
v.
DOUGLAS
M.
COSTLE,
AS
ADMINISTRATOR
OF
THE
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY,
RESPONDENT;
PUBLIC
SERVICE
COMPANY
OF
NEW
HAMPSHIRE,
INTERVENOR.

No.
78­
1339
UNITED
STATES
COURT
OF
APPEALS,
FIRST
CIRCUIT
597
F.
2d
306;
1979
U.
S.
App.
LEXIS
14974;
13
ERC
(
BNA)
1001;
9
ELR
20320
March
15,
1979,
Argued
May
2,
1979,
Decided
PRIOR
HISTORY:
[**
1]

On
Petition
for
Review
of
a
Decision
on
Remand
of
the
Administrator
of
the
United
States
Environmental
Protection
Agency.

LexisNexis(
R)
Headnotes
COUNSEL:

Robert
A.
Backus,
Manchester,
N.
H.,
and
Harvey
N.
Winchester,
Needham,
Mass.,
with
whom
O'Neill,
Backus
&
Spielman,
Manchester,
N.
H.,
was
on
brief
for
petitioners.

Barry
S.
Neuman,
Atty.,
Environmental
Protection
Agency,
with
whom
James
W.
Moorman,
Asst.
Atty.
Gen.,
Joan
Bernstein,
Gen.
Counsel,
James
A.
Rogers,
Atty.,
Environmental
Protection
Agency,
Bradford
F.
Whitman
and
Fred
R.
Disheroon,
Attys.,
Dept.
of
Justice,
Washington,
D.
C.,
were
on
brief
for
respondent.

Thomas
G.
Dignan,
Jr.,
Boston,
Mass.,
with
whom
John
A.
Ritsher,
R.
K.
Gad,
III,
Faith
S.
Hochberg,
and
Ropes
&
Gray,
Boston,
Mass.,
were
on
brief
for
intervenor.

JUDGES:

Before
COFFIN,
Chief
Judge,
BOWNES,
Circuit
Judge,
PETTINE,
n*
District
Judge.

*
Of
the
District
of
Rhode
Island,
sitting
by
designation.

OPINIONBY:

COFFIN
OPINION:

[*
307]

This
case
returns
to
us
challenging
the
Administrator's
Remand
Opinion
reaffirming
his
approval
of
the
proposed
once­
through
cooling
system
for
the
Seabrook
Nuclear
Power
Plant.
We
had
remanded
his
first
decision
on
procedural
grounds.
[**
2]
Seacoast
Anti­
Pollution
League
v.
Costle,
572
F.
2d
872,
Cert.
denied,
439
U.
S.
824,
99
S.
Ct.
94,
58
L.
Ed.
2d
117
(
1978).
The
petitioners,
Seacoast
Anti­
Pollution
League
and
Audubon
Society
of
New
Hampshire,
now
seek
review
of
a
procedural
aspect
of
the
Administrator's
hearing
on
remand,
the
substance
of
the
decision,
and
the
adequacy
of
the
Administrator's
explanation
of
his
decision.

I.
The
Procedure
on
Remand
We
explained
the
procedural
history
of
this
case
and
the
design
of
the
Seabrook
facility
in
our
earlier
opinion,
Supra.
We
will
not
repeat
ourselves.
That
opinion
left
the
Administrator
with
several
options
for
correcting
his
errors.
He
issued
a
"
Response
to
the
Remand
Order
in
the
Seabrook
Case"
choosing
to
hold
a
new
hearing
at
which
the
technical
experts
who
had
advised
him
before
would
testify
and
be
subject
to
cross­
examination.
He
also
decided
to
allow
the
parties
to
introduce
evidence
not
offered
at
the
prior
hearings.
Though
petitioners
suggest
they
may
somehow
have
been
injured
by
the
breadth
of
the
remand
hearing,
they
do
not
argue
that
these
aspects
of
the
procedural
order
were
erroneous.
They
challenge,
however,
the
Administrator's
[**
3]
instructions
to
his
staff:

"
I
am
directing
my
Staff
not
to
appear
at
this
hearing
as
proponents
of
any
particular
result,
and
avoid
to
the
extent
possible
taking
an
adversary
position
in
it.
The
Staff
of
Region
I
shall
prepare
a
technical
summary
and
analysis
of
the
evidence
submitted
.
.
.
.
This
report
shall
be
non­
adversary
in
nature,
but
shall
contain
specific
conclusions
and
recommendations."

The
hearing
was
held,
and
the
staff
appeared
and
crossexamined
witnesses.
The
staff
replied
to
proposed
findings
and
conclusions
of
the
applicant
Public
Service
Company
of
New
Hampshire
(
PSCO),
an
intervenor
before
us,
but
did
not
file
proposals
of
its
own.
The
staff's
technical
[*
308]
summary
and
analysis
did
not
make
specific
conclusions,
apparently
in
part
because
the
staff
experts
were
not
unanimous.

Petitioners
spend
a
good
deal
of
space
arguing
that
such
an
order
is
unprecedented
in
agency
practice.
If
so,
we
might
be
curious
why
the
Administrator
issued
such
a
novel
order,
but
we
would
not,
for
that
reason,
have
any
basis
to
hold
the
order
illegal.
Absent
law
to
the
contrary,
agencies
enjoy
wide
latitude
in
fashioning
their
procedural
rules.
See
Vermont
Yankee
Nuclear
Power
Corp.
v.
NRDC,
435
U.
S.
519,
543­
44,
98
S.
Ct.
1197,
55
L.
Ed.
2d
460
(
1978).
[**
4]
n1
The
only
law
petitioners
cite
to
support
their
position
that
the
Administrator
is
compelled
to
allow
his
staff
to
participate
as
an
adversary
is
unpersuasive.
Office
of
Communication
of
United
Church
of
Christ
v.
FCC,
138
U.
S.
App.
D.
C.
112,
425
F.
2d
543
(
1969),
is
not
on
point
because
it
was
concerned
only
with
the
impact
agency
neutrality
can
have
on
the
allocation
of
the
burden
of
proof.
The
regulation,
40
C.
F.
R.
§
125.36(
a)(
1),
in
which
the
Administrator
defines
"
party"
to
include
"
officers
or
employees
of
the
Environmental
Protection
Agency"
does
not
answer
the
question.
Petitioners
argue,
by
reference
to
Black's
Law
Dictionary,
that
a
party
is
someone
"
who
takes
sides"
n2
and
that,
therefore,
the
regulation
requires
the
Agency
to
take
a
side.
In
fact,
of
course,
the
word
"
party"
has
a
far
broader
meaning
and
can
refer
to
anyone
"
concerned
or
having
or
taking
part
in
any
affair,
matter,
transaction,
or
proceeding",
to
quote
again
from
Black's.
One
can
participate
in
a
proceeding
without
taking
a
side.
In
short,
merely
labeling
the
Agency's
staff
a
party
tells
us
nothing
about
the
duties
of
that
party.

n1.
In
Vermont
Yankee
the
Court
speculated
that
"
it
might
.
.
.
be
true,
although
we
do
not
think
the
issue
is
presented
in
this
case
and
accordingly
do
not
decide
it,
that
a
totally
unjustified
departure
from
well
settled
agency
procedures
of
long
standing
might
require
judicial
correction."
435
U.
S.
at
542,
98
S.
Ct.
at
1211.
Even
were
that
true
and
were
this
"
a
totally
unjustified
departure
from
well
settled
agency
procedures
of
long
standing",
we
would
think
that
the
rule
would
be
limited
to
where
the
agency
deprived
some
party
other
than
itself
of
important
procedural
rights
normally
accorded.
[**
5]

n2.
This
phrase
is
from
an
illustrative
case
in
Black's.
It
is
not
itself
incorporated
in
the
definition
of
party.
Certainly,
however,
the
vast
majority
of
parties
to
proceedings
in
our
legal
system
do
take
sides.

Finally,
petitioners
suggest
that
EPA
must
take
a
side
to
meet
its
Congressional
mandate
to
protect
the
environment.
Certainly
EPA
need
not
always
side
against
applicants
for
permits
to
discharge
pollutants.
The
staff
was
an
active
participant
in
the
remand
hearing,
both
in
building
and
testing
the
record.
Staff
experts
offered
views
on
both
sides
of
the
issues.
The
only
thing
the
staff
did
not
do
was
advocate
a
particular
outcome.
The
Administrator
found
that
the
record
would
not
have
been
more
complete
had
the
staff
taken
sides.

We
are
not
sure
how
petitioners
can
show
that
they
are
aggrieved
by
the
Agency's
neutrality
given
the
significant
likelihood
that
the
staff
would
have
chosen,
if
put
to
it,
to
support
the
Administrator's
earlier
decision
(
the
substance
of
which
we
had
not
addressed
in
our
opinion).
But
petitioners
have
failed
to
point
us
to
any
law
requiring
EPA's
[**
6]
staff
not
to
be
neutral.
Therefore
this
challenge
fails.
n3
n3.
We
also
reject
the
suggestion
that
the
Administrator
failed
to
give
any
reason
for
his
order,
assuming
arguendo
that
an
explanation
of
this
order
was
necessary.
Remand
Opinion
at
56.

II.
Substantive
Challenges
PSCO,
as
a
point
source
applying
for
permission
to
discharge
heat,
is
required
to
"
demonstrate
to
the
satisfaction
of
the
Administrator"
that
the
design
of
the
Seabrook
plant
"
will
assure
the
protection
and
propagation
of
a
balanced,
indigenous
population
of
shellfish,
fish,
and
wildlife
.
.
.
."
33
U.
S.
C.
§
1326(
a).
Moreover,
"
the
location,
design,
construction,
and
capacity
of
cooling
water
intake
structures
(
must)
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impact."
33
U.
S.
C.
§
1326(
b).
We
must
affirm
the
Administrator's
[*
309]
decisions
under
these
sections
if
they
are
supported
by
substantial
evidence
in
the
record.
5
U.
S.
C.
§
706
[**
7]
(
2)(
E).

The
plant's
design
requires
824,000
gallons
of
cooling
water
per
minute.
The
design
calls
for
cooling
water
to
be
drawn
from
the
ocean
beyond
the
Hampton­
Seabrook
Estuary
about
7,000
feet
offshore
from
Hampton
Beach.
The
water
there
is
58
feet
deep.
The
intake
structures
will
be
between
10
and
17
feet
above
the
ocean
bottom
and
will
pull
water
into
the
system
at
a
velocity
of
about
one
foot
per
second.
The
water
is
ultimately
discharged
at
another
location
through
a
diffuser
system
and
is
about
39o
F
warmer
than
the
ambient
water
temperature.
Living
organisms
sucked
into
the
cooling
system
are
not
expected
to
survive.

The
Administrator
found
that
most
mature
fish
likely
to
encounter
the
intake
flow
would
be
able
to
detect
that
flow
and
would
have
sufficient
swimming
speed
to
avoid
being
trapped.
During
their
larval
stages,
however,
many
fish
are
at
the
mercy
of
the
tides
and
currents
and
would
have
no
way
to
escape.
Even
some
juvenile
fish
might
be
too
small,
lacking
the
necessary
speed
to
escape
the
intake's
pull.
The
Administrator
decided,
though,
that
no
species
would
exist
in
sufficient
numbers
at
the
intake
location
to
be
endangered.
Though
the
intake
would
act
[**
8]
as
an
additional
large
predator,
there
are
other
more
dangerous
threats
in
the
natural
environment,
which
fish
are
able
to
survive
because
they
are
highly
fecund.
Remand
Opinion
at
51.
For
instances,
individual
female
winter
flounder
produce
about
500,000
eggs
annually
and
rainbow
smelt
produce
between
25,000
and
50,000.
Id.
at
35.

Against
this
background,
petitioners
raise
three
relatively
narrow
issues:
that
the
Administrator
erred
in
concluding
(
a)
that
the
impact
on
juvenile
rainbow
smelt
would
be
small
enough
to
assure
the
protection
and
propagation
of
the
species;
(
b)
that
the
impact
on
winter
flounder
larvae
would
also
be
small
enough;
n4
and
(
c)
that
the
cooling
water
intake
location
"
reflect(
s)
the
best
technology
available
for
minimizing
adverse
environmental
impact."

n4.
Larval
smelt
would
not
be
endangered
because
the
smelt
spawn
in
fresh
water
so
that
very
few
larvae
would
be
swept
out
to
the
intake
location.
Juvenile
flounder
would
have
sufficient
swimming
speed
to
escape
the
intake
flow,
as
would
mature
fish
of
either
species.
The
eggs
of
both
species
sink
and
stick
to
the
bottom
and,
thus,
would
not
be
affected
by
the
intake
location.

[**
9]

A.
Juvenile
Smelt
The
Administrator
found:

"
Although
there
is
some
doubt
whether
most
juvenile
smelt
possess
the
requisite
swimming
speed
to
avoid
the
intake,
the
plant's
effects
on
them
will
not,
in
any
event,
be
significant
because
Most
smelt
will
not
be
found
as
far
out
as
the
intake
structure
or
in
water
as
deep
as
its
opening.
Although
in
its
most
recent
sampling,
Public
Service
Company's
consultant
found
some
smelt
in
water
at
least
as
far
out
as,
and,
perhaps,
as
deep
as
the
intake
structure
and
its
opening,
this
does
not
alter
the
conclusion
based
upon
almost
100
years
of
experience
that
smelt
is
In
general
an
inshore
fish
found
a
mile
or
so
offshore
inhabiting
the
upper
3
fathoms
of
the
water
column.
This
was
clearly
the
view
of
well
qualified
experts
who
considered
both
this
general
experience
and
the
more
recent
sampling.
The
conclusion
of
these
experts
is
consistent
with
the
general
experience
of
professional
fishermen
in
the
area."
(
Footnote
omitted.)
(
Emphasis
added.)
Petitioners
challenge
this
conclusion
as
unsupported.
Their
theory
is
that
the
Administrator
relied
on
a
1953
book
which
set
the
outer
boundary
of
smelt
populations
at
about
one
[**
10]
mile;
whereas
the
same
authors
ten
years
later
said
that
smelt
ranged
as
far
as
six
miles
out
to
sea.
Petitioners
also
point
to
the
PSCO
sampling
referred
to
by
the
Administrator
as
proof
that
"
smelts
were
fairly
numerous
at
an
area
near
the
proposed
intake."
The
fact
is
that
the
Administrator
was
fully
aware
that
some
smelt
could
be
found
at
the
intake
location
and
that
juvenile
smelt
could
be
entrapped
[*
310]
and
killed.
These
facts
do
not
undermine
his
finding
that
"
most"
smelt
will
not
come
near
the
intake
and,
thus,
will
not
be
endangered.

The
record
certainly
supports
the
Administrator's
finding.
The
experts
who
testified
at
the
remand
hearing
did
not
base
their
testimony
that
smelt
are
generally
inshore
fish
solely
on
any
one
document
or
one
study.
They
testified
from
their
own
expertise
and
from
assembled
reports
of
others'
experience
stretching
back
over
a
century.
As
they
testified,
a
particular
sampling
that
found
a
number
of
smelt
in
a
particular
location
does
not
necessarily
disprove
the
collected
theories
about
smelt.
The
sampling
did
not
address
two
critical
questions
the
relative
number
of
smelt
in
the
intake
vicinity
compared
to
elsewhere
and
the
location
[**
11]
of
the
smelt
in
the
water
column.
Without
having
some
idea
of
the
number
of
smelt
closer
to
shore,
the
absolute
number
found
near
the
intake
is
not
very
meaningful.
It
does
not
help
one
determine
whether
the
intake
will
affect
the
ability
of
the
smelt
to
propagate
and
survive.
In
short,
we
cannot
say
that
the
Administrator
was
wrong,
considering
the
entire
record,
to
rely
on
the
expert
testimony.

B.
Flounder
Larvae
The
Administrator
noted
that
he
could
not
be
certain
from
the
record
whether
the
winter
flounder
found
near
the
intake
were
part
of
a
"
local
population"
distinct
from
other
populations
of
flounder
found
elsewhere.
If
the
flounder
are
a
local
population,
then
any
impact
on
them
from
the
plant
would
be
magnified,
at
least
potentially,
because
the
local
flounders
would
not
interbreed
with
and
recruit
from
others
of
the
species
to
augment
the
population
or
replace
those
killed
by
the
intake.
Nor,
the
Administrator
found,
did
the
record
conclusively
demonstrate
whether
the
flounder
spawned
close
to
shore
or
further
out
to
sea.
If
they
spawned
closer
to
shore,
it
might
be
more
likely
that
they
constituted
a
distinct
population
confined
to
the
Hampton­
Seabrook
Estuary.
n5
[**
12]
n5.
Though
noting
these
uncertainties,
among
others,
the
Administrator
apparently
felt
it
more
likely
that
the
flounder
spawned
offshore
and
were
not
confined
to
the
particular
estuary.

Petitioners
rely
on
these
failures
of
proof
to
argue
that
the
Administrator's
conclusion
that
intake
would
not
significantly
endanger
winter
flounder
is
unsupported
by
the
record.
Resolution
of
these
issues,
however,
was
not
essential
to
the
Administrator's
conclusion.

The
Administrator
reasoned
that
if
the
flounder
were
a
local
population
and
spawned
in
the
estuary,
then
few
of
the
larvae
would
reach
the
areas
of
the
intake
or
the
diffuser
(
where
the
heated
water
being
expelled
might
endanger
the
larvae).
That
is
so
because
the
tidal
movement
of
the
water
in
the
estuary,
the
tidal
plume,
rarely,
if
ever,
reaches
those
areas.
Moreover,
the
younger
larvae,
which
are
most
at
the
mercy
of
the
water
movement,
would
likely
be
high
in
the
estuary,
close
to
freshwater,
and
therefore,
unlikely
to
be
swept
out
of
the
harbor
by
the
[**
13]
tidal
plume.
Remand
Opinion
at
41.
"
In
addition,
if
flounder
larvae
leave
the
estuary,
they
will
tend
to
disperse
over
a
relatively
broad
area
as
the
water
in
which
they
are
transported
mixes
with
the
coastal
water;
and
although
some
flounder
larvae
contained
in
this
mixed
coastal
water
may
ultimately
be
carried
northward
toward
the
intake
and
diffuser,
instead
of
southward
with
the
generally­
prevailing
currents,
only
a
small
portion
of
these
larvae
will
be
affected
by
the
intake
and
the
diffuser."
Id.
at
42.

If,
on
the
other
hand,
the
flounder
are
a
localized
population
but
spawn
offshore,
"
a
much
greater
area
or
volume
of
water
must
be
considered
than
the
area
of
the
diffuser
and
intake
and
the
waters
impacted
thereby.
There
is
a
vast
expanse
of
coastal
area
available
for
spawning.
The
area
around
the
intake
and
diffuser
does
not
appear
to
be
unique
with
respect
to
flounder
spawning
and
winter
flounder
larvae
population
should
inhabit
areas
to
the
north
and
south
and
inshore
and
offshore
from
the
intake
and
diffuser.
There
are
no
physiographic
structures
restricting
the
spawning
area.
[*
311]
Neither
is
there
any
reason
to
believe
that
the
coastal
area
off
the
Hampton­
Seabrook
[**
14]
harbor
entrance
and
in
the
immediate
vicinity
of
the
intake
and
diffuser
is
different
or
a
more
attractive
spawning
ground
than
other
areas
along
or
off
the
coast.
Nor
does
any
biological
reason
suggest
itself
for
spawning
limited
to
the
area
of
concern."
Id.
at
42­
43.
The
Administrator
was
satisfied
that
the
winter
flounder
larvae
would
not
be
endangered
even
if
the
uncertainties
pointed
to
by
petitioners
were
resolved
against
PSCO.
The
Administrator's
logic
strikes
us
as
compelling,
and
petitioners
give
us
no
reason
to
doubt
either
the
reasoning
or
the
particular
facts
upon
which
it
is
based.
Therefore,
we
must
uphold
the
Administrator's
conclusion
that
the
protection
and
propagation
of
the
flounder
is
assured.
We
see
no
reason
to
delve
into
factual
problems
that
are
not
essential
to
the
decision.

C.
Intake
Location
Petitioners'
final
substantive
challenge,
to
the
Administrator's
approval
of
the
intake
location
and
design,
is
not
a
model
of
clarity.
The
Administrator
decided
that
moving
the
intake
further
offshore
might
further
minimize
the
entrainment
of
some
plankton,
but
only
slightly,
and
that
the
costs
would
be
"
wholly
disproportionate
to
any
environmental
benefit".
[**
15]
Remand
Opinion
at
49­
50.
Apparently
petitioners
read
the
cost
figure
considered
by
the
Administrator,
$
20
million,
as
including
the
estimated
costs
of
delay
and
reengineering
as
well
as
additional
tunnelling.
They
suggest
that
the
cost
of
delay
is
an
improper
consideration.
The
record
is
clear,
however,
that
$
20
million
is
the
cost
of
the
tunnelling
alone.
Petitioners,
wisely,
do
not
argue
that
the
cost
may
not
be
considered,
and
no
harm
is
done
by
noting
that
there
would
be
other
costs.
The
legislative
history
clearly
makes
cost
an
acceptable
consideration
in
determining
whether
the
intake
design
"
reflect(
s)
the
best
technology
available".
n6
n6.
A
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
93rd
Cong.,
1st
Sess.
264
(
1973).
Costs
are
also
an
acceptable
consideration
in
determining
the
"
best
available
technology"
under
33
U.
S.
C.
§
1314(
b)(
2)(
B).

Petitioners
also
assign
error
to
the
Administrator's
approval
of
the
one­
foot­
per­
second
intake
velocity.
[**
16]
They
allege
that
the
Administrator
neglected
information
indicating
juvenile
fish
would
be
less
able
to
detect
and
avoid
the
intake.
He
plainly
did
not
ignore
that
information.
His
decision
acknowledges
that
some
juvenile
fish
will
be
killed,
Id.
at
48,
and,
as
we
have
already
discussed,
devotes
some
space
to
the
special
problems
of
juvenile
rainbow
smelt.
Moreover,
there
is
expert
testimony
that
the
intake
velocity
is
unusually
low
and
is
the
optimum
intake
velocity
for
the
intake
site.

III.
The
Administrator's
Decision
Petitioners'
last
set
of
arguments
is
their
weakest.
They
assert
that
the
Administrator
violated
5
U.
S.
C.
§
557
by
failing
to
explain
adequately
a
number
of
procedural
orders
and
factual
or
legal
conclusions.
As
to
most
of
these,
however,
they
concede
that
the
questioned
order
or
finding
was
within
the
Administrator's
discretion.
As
to
the
rest,
it
is
plainly
apparent
either
that
there
is
sufficient
record
support
or
that
the
particular
finding
was
not
crucial
to
the
decision.
And,
indeed,
petitioners,
with
one
exception,
See
note
3,
Supra,
do
not
attack
any
of
these
orders
or
conclusions
on
their
merits.
Rather,
they
suggest
that
the
[**
17]
failure
to
fully
explain
and
provide
record
citations
for
each
and
every
conclusion
constitutes
reversible
error
in
and
of
itself.
n7
n7.
Because
of
our
resolution
of
this
issue,
we
need
not
decide
when,
if
ever,
the
Administrator
must
provide
record
citations
in
order
adequately
to
explain
his
conclusions.
We
merely
note
the
obvious,
that
such
citations
are
often
useful
to
a
reviewing
court.

Petitioners
are
wrong.
The
Administrative
Procedure
Act
requires
a
reviewing
court
to
take
"
due
account
.
.
.
of
the
rule
of
prejudicial
error."
5
U.
S.
C.
§
706;
Cf.
Seacoast
Anti­
Pollution
League
v.
Costle,
572
F.
2d
872,
881
n.
19
(
1st
Cir.
1978)
(
use
of
extra­
record
evidence
not
fatal
unless
it
substantially
prejudices
petitioner).
[*
312]
Moreover,
the
rule
petitioners
would
have
us
apply
would
not
serve
the
primary
purpose
of
the
explanation
requirement,
which,
as
petitioners
recognize,
is
to
facilitate
appellate
review
of
administrative
decisions.
See
Northeast
Airlines,
Inc.
v.
CAB,
331
F.
2d
579,
586
(
1st
Cir.
1964).
[**
18]
We
need
no
explanation
of
a
decision
that
we
are
not
asked
to
review.

This
does
not
mean
that
petitioners
do
not
have
the
right
to
a
statement
of
reasons
or
that
agencies
do
not
err
when
they
fail
to
explain
decisions.
It
only
means
that
we
do
not
sit
to
resolve
abstract
arguments
about
whether
particular
explanations
sufficed.

The
petition
for
review
is
dismissed.
