Natural Resources Defense Council v. U.S. Nuclear Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2017 Decided January 19, 2018

No. 16-1298

NATURAL RESOURCES DEFENSE COUNCIL AND POWDER RIVER

BASIN RESOURCE COUNCIL,

PETITIONERS

v.

U.S. N UCLEAR REGULATORY COMMISSION AND UNITED

STATES OF AMERICA,

RESPONDENTS

STRATA ENERGY , INC.,

INTERVENOR

On Petition for Review of an Order of the

United States Nuclear Regulatory Commission

Shannon Anderson argued the cause for petitioners. On

the brief were Howard M. Crystal and Geoffrey H. Fettus.

Eric V. Michel, Attorney, U.S. Nuclear Regulatory

Commission, argued the cause for federal respondents. With

him on the brief were John C. Cruden, Assistant Attorney

General at the time the brief was filed, U.S. Department of

Justice, Lane N. McFadden, Attorney, and Andrew P.

Averbach, Solicitor, U.S. Nuclear Regulatory Commission.

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Christopher S. Pugsley argued the cause for intervenor-

respondent. With him on the brief was Anthony J. Thompson.

David A. Repka, Tyson R. Smith, Ellen C. Ginsberg, and

Jonathan M. Rund were on the brief for amicus curiae Nuclear

Energy Institute, Inc. in support of respondents.

Before: KAVANAUGH , Circuit Judge, and WILLIAMS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: The Nuclear Regulatory

Commission issued a license to Strata Energy, Inc. to mine

uranium in Crook County, Wyoming. The Natural Resources

Defense Council, Inc., and the Powder River Basin Resource

Council (collectively, the Councils) intervened in the licensing

proceeding and now petition this court for review, alleging both

procedural and substantive defects in the licensing process. For

the reasons that follow, we deny their petition.

I. Background

We begin with a brief explanation of the mining process,

insofar as relevant to this litigation, before describing the facts

and procedural background of this case.

A. ISL Mining

In situ leach uranium mining (ISL mining) involves the

extraction of uranium from permeable uranium-bearing

sandstone. The extraction begins with the drilling of an

injection well into the sandstone formation, through which is

pumped the “lixiviant,” a liquid that separates the uranium

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from the permeable sandstone. The uranium-permeated

lixiviant is pumped out through a recovery well and processed

to extract the uranium. A uranium mining project may

comprise hundreds or even thousands of such wells, grouped

together in a “wellfield.”

Although the layer of sandstone from which the uranium

is extracted is meant to be hydrologically isolated — that is,

bounded by layers of impermeable rock — “excursions” of the

lixiviant may occur. In order to reduce the risk of excursions,

ISL mining projects use “monitoring wells,” which miners drill

both around the perimeter of a wellfield and into overlying and

underlying aquifers in order to monitor any changes in the

chemical composition of the water.

B. Background

Strata sought a license from the Commission to mine

uranium at what it calls the Ross Project in Crook County,

Wyoming. 76 Fed. Reg. 41,308, 41,309 (2011). The Ross

Project lies in an area known as the Lance District, which spans

parts of Nebraska, South Dakota, and Wyoming.

The National Environmental Policy Act (NEPA), 42

U.S.C. §§ 4321 et seq., and the Atomic Energy Act (AEA), 42

U.S.C. § 2011 et seq., along with the Commission’s regulations

implementing them, governed the licensing process. That

process begins when a mining company files an “application

for a license to possess and use source material for uranium

milling.” 10 C.F.R. § 40.31(f). The application must include,

among other things, a discussion of “the impact of the proposed

action on the environment;” “[a]ny adverse environmental

effects which cannot be avoided should the proposal be

implemented;” and “[a]lternatives to the proposed action.” Id.

§ 51.45(b)(1)-(3).

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1. The AEA

Under the AEA, 42 U.S.C. § 2011 et seq., anyone “whose

interest may be affected by the [licensing] proceeding” has a

right to intervene and be heard. Id. § 2239(a)(1)(A). To get a

hearing, an intervenor must specify at least one “contention”

“[p]rovid[ing] a specific statement of the issue of law or fact to

be raised or controverted … directed at demonstrating that one

or more of the acceptance criteria [for a license] have not been,

or will not be met.” 10 C.F.R. § 2.309(f).

The Councils, which intervened on behalf of a member

living in Wyoming, sought and were granted a hearing. See In

re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project)

(Strata I), 75 N.R.C. 164 (2012). Initially, the Commission

admitted the Councils’ Contentions Nos. 1, 2, 3, and 4/5A, with

Contention No. 1 being of limited relevance to this appeal.

Contention No. 2 relates to the Commission requirement that,

upon the completion of mining operations, the miner restore a

mined aquifer so the groundwater concentration of the

previously mined hazardous element or mineral does not

exceed a specified limit. 10 C.F.R. Part 40, App. A. Of the

three options for restoration, the one relevant here is restoration

to an “alternate concentration limit [ACL] established by the

Commission,” id. Criterion 5B(5)(c), with this ACL being “as

low as reasonably achievable” so remaining hazardous

chemicals or minerals in the groundwater “will not pose a

substantial present or potential hazard to human health or the

environment,” id. Criterion 5B(6). Contention No. 2 charged

Strata with “fail[ing] to analyze the environmental impacts that

will occur if [Strata] cannot restore groundwater to primary or

secondary limits” — that is, if Strata were forced to restore

groundwater to an ACL. Strata I at 212.

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Contention No. 3 dealt with the risk of excursions; it

claimed Strata had “fail[ed] to include adequate hydrological

information to demonstrate [its] ability to contain groundwater

fluid migration.” Id. Finally, Contention No. 4/5A asserted

that Strata had further expansion plans for the Lance District

but had “fail[ed] to adequately assess cumulative impacts of the

proposed action and the planned Lance District expansion

project.” Id.

Once the Commission receives a license application, the

Commission staff prepares a draft environmental impact

statement (EIS), which analyzes the environmental effect of the

proposal and of any alternatives. See 10 C.F.R. §§ 51.70-71.

The Commission can “migrate” contentions made against an

initial license application (that is, “deem[] [them] to apply”) to

the draft EIS or final EIS (FEIS) if “the information in the [draft

EIS or FEIS] is sufficiently similar to the material in the

[license application]” that the contention remains relevant. In

re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project)

(Strata IV), 83 N.R.C. 566, 570 n.17 (2016) (internal quotation

marks omitted).

After the staff completed its draft EIS, the Atomic Safety

and Licensing Board that conducted the hearing occasioned by

the Councils’ intervention permitted the Council to migrate

Contentions Nos. 1, 2, and 3 to the draft EIS. It disallowed

Contention No. 4/5A on the ground that “the substantive basis

of the cumulative impacts analysis asserted to be inadequate in

the [license application] differs significantly from that

provided in the [draft EIS].” In re Strata Energy, Inc. (Ross In

Situ Recovery Uranium Project) (Strata II), LBP-13-10, 2013

WL 8433972, at *21 (N.R.C. July 26, 2013). The Board noted

that, if a contention is not obviously going to be migrated, then

its proponent should either seek to amend it or have it treated

as a new contention pursuant to 10 C.F.R. § 2.309(c)(1) and

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(f)(1), failing which the contention may be lost. Id. at *22 n.15.

The Board also declined to admit a new Contention No. 6. Id.

at *22-29.

A draft EIS is subject to public comment. 10 C.F.R.

§ 51.73. Per Commission regulations, once comments have

been received and addressed, the staff publishes its FEIS, id.

§ 51.91(a)(1), a record of decision, id. § 51.102, and a decision

on whether to issue a license, id. § 2.1202(a). The staff

published the FEIS for the Ross Project in March 2014. 79

Fed. Reg. 13,683 (March 11, 2014). Shortly thereafter, it

issued a record of decision, rejected all the Councils’ remaining

contentions, and granted Strata a license.

2. The NEPA

In order to ensure that agencies consider the environmental

consequences of their actions, the NEPA requires them to

“include in every recommendation or report on … major

Federal actions significantly affecting the quality of the human

environment, a detailed statement … on … the environmental

impact of the proposed action.” 42 U.S.C. § 4332(C)(i). This

requirement is meant both to guarantee an agency will

“consider every significant aspect of the environmental impact

of a proposed action” and “inform the public” that it has done

so, Baltimore Gas & Electric Co. v. NRDC, Inc., 462 U.S. 87,

97 (1983) (internal quotation marks omitted), and to “focus[]

the agency’s attention on the environmental consequences of a

proposed project … [so] that important effects will not be

overlooked or underestimated only to be discovered after

resources have been committed or the die otherwise cast.”

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

349 (1989).

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Here the parties agree the relevant report for NEPA

purposes is the FEIS, but the evidentiary hearing to which the

Councils were entitled under the AEA took place some six

months after the FEIS and the license had been issued. See 79

Fed. Reg. 44,471 (July 31, 2014). This was in keeping with

Commission regulations, as “the NRC staff is expected to

promptly issue its approval or denial of [a license] application,”

even “[d]uring the pendency of any hearing.” 10 C.F.R.

§ 2.1202(a).

In January 2015, the Board issued a decision on the

Councils’ remaining contentions. In re Strata Energy, Inc.

(Ross In Situ Recovery Uranium Project) (Strata III), 81

N.R.C. 65 (2015). It rejected all their contentions and found

no fault with the decision to issue the license. It did, however,

find one fault with the FEIS itself — namely, that it did not

include enough information concerning post-mining aquifer

restoration to an ACL at ISL mining sites other than the Ross

Project. Id. at ¶¶ 4.87-4.89 & n.49. The Board, however,

rejected the Councils’ argument that it should invalidate the

license on the ground that the FEIS was inadequate at the time

the license was issued. Instead, the Board decided staff

testimony in the record before it dealing with restoration to an

ACL at other sites served to “supplement[]” the FEIS, thus

making it adequate to support issuance of the license. Id. at ¶

4.89.

Strata sought review by the Commission of the Board’s

decisions supplementing the FEIS, refusing to migrate

Contention No. 4/5A, and rejecting Contention No. 6; it also

raised various substantive objections to the license. The

Commission rejected all Strata’s arguments, with one

Commissioner dissenting in part on the ground that

supplementation of the FEIS meant the license was issued

before the FEIS was complete, in violation of the NEPA.

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Strata IV, 83 N.R.C. 566. The Councils here raise essentially

the same arguments they made to the Commission that its

actions violated the NEPA and were arbitrary and capricious in

violation of the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A).

II. Analysis

The APA, of course, requires this court to “hold unlawful

and set aside agency action, findings, and conclusions found to

be arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). “Upon review

of the EIS, our job is to ensure that the agency took a ‘hard

look’ at the environmental consequences of its decision to go

forward with the project.” City of Grapevine, Tex. v. Dep’t of

Transp., 17 F.3d 1502, 1503-04 (D.C. Cir. 1994). “In doing

so, we are mindful that our role is not to ‘flyspeck an agency’s

environmental analysis, looking for any deficiency no matter

how minor.’” WildEarth Guardians v. Jewell, 738 F.3d 298,

319 (D.C. Cir. 2013) (quoting Nevada v. Dep’t of Energy, 457

F.3d 78, 93 (D.C. Cir. 2006)).

A. Failure to Migrate Contention No. 4/5A and to Admit

Contention No. 6

The Councils complain first that the Board refused to

migrate Contention No. 4/5A from the license application to

the draft EIS and that it refused to allow their new Contention

No. 6.

1. Contention No. 4/5A

The Board will permit the migration of a contention if the

analysis at which it is directed is substantially the same in the

license application and in the draft EIS. That was not the case

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here; the discussion of possible cumulative effects associated

with the Ross Project was substantially more thorough in the

draft EIS than in the license application. Strata II, 2013 WL

8433972 at *21-22 and n.15. The Board also declined to

amend the Contention sua sponte to apply to the discussion in

the draft EIS; amended contentions must satisfy the “good

cause” factors set out in 10 C.F.R. § 2.309(c)(1), and the

Councils failed even to imply they wanted to amend

Contention No. 4/5A and failed to mention those factors in

their application to migrate the Contention. Id.

The Councils charge the Board’s refusal to migrate

Contention No. 4/5A elevated form over substance:

Information showing they did have good cause and that the

basis for Contention No. 4/5A did not differ substantially

between the license application and the draft EIS was available

in the record, and the Board should have found it even if the

Councils themselves did not specifically point to it. But a court

is not required to plumb the record for “novel arguments a

[litigant] could have made but did not,” United States v.

Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011); cf. United States v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like

pigs, hunting for truffles buried in briefs”), and we see no

reason agency officials engaged in adjudication should be any

more obligated than judges to do counsels’ work for them. We

are unwilling, therefore, to fault the Board for failing to hunt

for such evidence when the Councils themselves did not even

imply they wanted to amend their Contention.

2. Contention No. 6

The Councils’ proposed Contention No. 6 challenged the

failure of the draft EIS to consider the environmental

consequences of mining the entire Lance District, as opposed

to just the Ross Project. Strata II, 2013 WL 8433972 at *23.

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The Commission’s own regulations require that various

projects be considered in a single EIS if they are “connected,”

“cumulative,” or “similar.” 40 C.F.R. § 1508.25(a). A

contention that a set of projects is connected, cumulative, or

similar must, however, like any other contention, be made in a

timely manner, as specified in 10 C.F.R. § 2.309(c)(1)(iii); here

the Board held any argument that Ross Project was cumulative

with or similar to other projects was not timely because the

information necessary for making that argument was available

in various press releases from Strata and its parent company

well before the Councils attempted to file Contention No. 6.

Strata II, 2013 WL 8433972 at *28.

The Councils do not challenge that decision. They do,

however, challenge the Board’s conclusion that the Ross

Project and future Lance District projects were not “connected”

within the meaning of § 1508.25(a), though they do so in vague

terms.

Section 1508.25(a)(1)(iii) defines “connected” projects as

projects that “[a]re interdependent parts of a larger action and

depend on the larger action for their justification.” The Board

concluded the Ross Project was not dependent upon any future

project because the Ross Project had “independent utility” —

meaning the Ross Project was viable even if no other part of

the Lance District were to be developed. Strata II at *26-27

(citing Thomas v. Peterson, 753 F.2d 754, 759 (9th Cir. 1985)).

Beyond a vague allusion to “other evidence,” all the Councils

offer this court to show the Ross Project lacked independent

utility is that it “was intended to service the larger Lance

District operation” and “Strata’s parent company had publicly

announced the larger development plans.” This simply does

not respond to the Board’s finding that the Ross Project was

economically viable standing alone. That its sponsor

envisioned it as part of a larger uranium production complex

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does not mean the Ross Project would not have been built

absent the larger production complex that Strata hoped

eventually to develop.

B. Supplementation of the EIS Post-Licensure

The Councils’ other procedural complaint focuses upon

the supplementation of the FEIS after the staff had issued a

license to Strata. As stated above, when the staff issued the

license the Board had found only one flaw with the FEIS and

the Record of Decision, namely, that the FEIS did not contain

enough information on other aquifers previously restored to

ACLs after the completion of an ISL mining project. Strata III,

81 N.R.C. at ¶¶ 4.87-4.89 & n.49. Nevertheless, the Board held

“the post-restoration uranium concentration levels reported in

the Staff’s prefiled [hearing] testimony supplements the [FEIS]

so as to cure any defect in that regard.” Id. at ¶ 4.89.

When the Councils challenged this supplementation on

appeal, the Commission denied review because “the Board

evaluated the Staff’s analysis and determined that, with the

additional information considered at the hearing and in the

Staff’s prefiled testimony, the environmental impacts of the

proposed licensing action were appropriately identified.”

Strata IV, 83 N.R.C. at 594. In addition, the Commission noted

it had “previously held that a Board’s hearing, hearing record,

and subsequent decision on a contested environmental matter

augment the environmental record of decision developed by the

Staff with respect to this issue.” Id. at 595 (citing In re Entergy

Nuclear Ops., Inc. (Indian Point, Units 2 and 3), 81 N.R.C.

340, 388 (2015)).

Commissioner Baran, dissenting, concluded that “the

adjudicatory decision or proceedings cannot supplement the

NEPA environmental document or Record of Decision after the

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fact because the licensing action has already been taken in

reliance on the NEPA analysis.” Id. at 604. “[O]nly with the

additional information considered at the hearing, were the

environmental impacts of the proposed licensing action

appropriately identified.” Id. Therefore, the NEPA analysis

itself was inadequate to justify the decision made. Id.

In its petition for review by this court, the Councils renew

their arguments, and adopt the point Commissioner Baran

made in his dissent. In short, their argument is that the purpose

of the NEPA is to “insure that environmental information is

available to public officials and citizens before decisions are

made and before actions are taken,” 40 C.F.R. § 1500.1(b), and

the Board as much as admitted the FEIS failed in that regard.

Relatedly, the Councils cite Robertson for the proposition that

the NEPA is an information-forcing statute, intended to require

agencies to have all the relevant information before “resources

have been committed or the die otherwise cast.” 490 U.S. at

349.

These are not idle concerns. We must consider, however,

the exact nature of the initial decision to issue the license. The

Commission seeks to portray the initial licensing decision as

entirely provisional; that is not quite correct for, as the Councils

charge (and the Commission does not deny), Strata was

authorized to begin digging immediately upon receipt of the

license. At the same time, the license was provisional in the

most meaningful sense; no portion of it was irrevocable, and

the Commission’s own regulations make clear that the Board

can amend or rescind a license after it has been issued. 10

C.F.R. § 2.340(e)(2). Indeed, the Board did amend the license

to increase the area in which Strata was required to attempt to

locate and to fill previously dug boreholes. See Strata III at

¶ 4.131.

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Moreover, the Councils have not pointed to any harmful

consequence of the supplementation; the Board came to the

same decision after it had considered the supplemental

information, and there is nothing to be gained by remanding the

matter to the Commission for the staff or the Board to consider

the same information again.

Indeed, as the Commission points out, we encountered this

same situation in Friends of the River (FOTR) v. FERC, 720

F.2d 93 (D.C. Cir. 1983). The project at issue there was a

hydroelectric dam; intervenors had challenged the plan to build

the dam, arguing that the power need could be met by

purchasing power produced by existing facilities. 720 F.2d at

95-97. The FEIS had “accorded only summary attention to

[that] concern.” Id. at 97. The FERC issued the license for the

dam, and only when it denied the intervenors’ petition for

rehearing did it provide a “cogent[]” explanation of “why [it]

rejected prospects for further reliance on purchased power as a

ground for refusing the license.” Id.

Despite this post-license supplementation of the record of

decision, we upheld the FERC’s determination, rejecting

essentially the same points the Councils raise here. We noted

that the NEPA “establishes an essentially procedural

requirement” that agencies “present evidence and discussion

relevant to their environmental decisionmaking in one

comprehensive document — the [EIS].” Id. at 105-06 (internal

quotation marks omitted). We held the FERC failed to

“measure up to NEPA’s command.” Id. at 106.

Nevertheless, we did not remand the matter for

reconsideration because that would have been futile. Had we

done so, the agency would have been required to investigate

the possibility of purchasing power from alternative sources,

but “well before the start of [our] review … the [FERC] did

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make such an investigation” and “incorporated its findings in

an opinion accessible to the public.” Id. Public Employees for

Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C.

Cir. 2016), upon which the Councils rely, is quite different.

There the Bureau of Ocean Energy Management did not

adequately consider the seafloor surrounding a wind energy

project because it never undertook seafloor surveys. Id. at

1082-84. The intervenor, Cape Wind, the proponent of the

project at issue, acknowledged the FEIS required those surveys

but said they had in fact been done. Id. at 1083. The surveys

were never acknowledged in agency decisions, however, and

were never made available to the public; hence, the agency had

not adopted them in any meaningful way, and a remand was in

order. Id. This is unlike the situation here, where the agency

recognized the inadequacy in the record of decision and

corrected it before being challenged in court.

This case is on all fours with FOTR, not Hopper. Here,

the Commission had adequately augmented its decision before

being challenged in this court, and did so in a publicly

accessible opinion. As in FOTR, “[w]e are not left to rely on

post hoc rationalizations … [because] we have before us [the

Commission’s] assessment, embodied in an opinion composed

after due investigation and before the matter was brought to

court.” 720 F.2d at 106-07. Moreover:

Sending [this decision] back “to teach the agency a

lesson” would be an essentially punitive measure; we

can discern no benefit to the public in such a course,

and no genuine service to the policies NEPA

advances…. Remands in such cases would inevitably

breed cynicism about court commands; they would

likely yield going-through-the-motions responses on

the part of those told to attend to the court’s costly,

resource-consuming instruction to redo, under the

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proper heading, what has already been done

effectively.

Id. at 107-08.

The Councils offer two grounds for distinguishing FOTR,

but neither is convincing. The first is that in FOTR the license

was issued only after the FEIS had been made adequate. This

is incorrect; in FOTR the license was issued in February 1982

but the FERC adequately confronted the alternative of

purchasing power for the first time some months later, in

denying rehearing of the initial decision to grant the license.

Id. at 97.

The second ground, raised for the first time at oral

argument, is that FOTR dealt with consideration of potential

alternatives to a given project, whereas this case deals with the

potential environmental effects of the project itself. This

belated assertion is true but irrelevant, for the two requirements

stand on the same footing. The NEPA requires that an EIS or

other similar report include a statement both of “any adverse

environmental effects which cannot be avoided should the

proposal be implemented” and of “alternatives to the proposed

action.” 42 U.S.C. § 4332(C)(ii)-(iii). So too do the

Commission’s own regulations. 10 C.F.R. § 51.45(b)(2), (3).

If the FEIS is required in one breath to consider both the

environmental effects of a proposed project and potential

alternatives to that project, then we cannot say the failure of

one FEIS adequately to consider a potential alternative is

somehow less important than the failure of another adequately

to consider a potential effect of the proposed project.

We do not mean to imply the procedure the Board

followed was ideal or even desirable. Certainly it would be

preferable for the FEIS to contain all relevant information and

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the record of decision to be complete and adequate before the

license is issued. FOTR, however, makes clear that even if this

procedure was not ideal it was permissible, and common sense

counsels against prolonging this dispute by requiring an utterly

pointless proceeding on remand.

C. Potential Negative Effect on the Mined Aquifer

(Contention No. 2)

The first of the Councils’ substantive claims is that the

Board erred in rejecting Contention No. 2, viz., that Strata

“fail[ed] to analyze the environmental impacts that will occur

if [it] cannot restore groundwater to primary or secondary

limits.” Strata I, 75 N.R.C. at 212. In the Councils’ view,

Strata will inevitably restore groundwater in the mined aquifer

to an ACL, and the FEIS failed adequately to analyze the

potential environmental effects of restoration to an ACL.

Though the Councils’ brief is not entirely clear on this issue,

we discern two main complaints: (i) the FEIS did not have

enough evidence regarding restoration to an ACL at other sites

and (ii) in making its determination the staff relied solely upon

the mined aquifer never being used for drinking water.

We have already held it was acceptable for the Board to

augment the FEIS with additional information regarding the

restoration of other sites to an ACL. The Councils do not

challenge the Board’s determination that the information

contained in the FEIS, once supplemented with the staff’s

prefiled hearing testimony, was a sufficient discussion of

previous restorations to an ACL. Their first complaint is

therefore moot.

The Councils’ second complaint also fails. The aquifer at

issue is “exempted” from being a source of drinking water —

meaning “[i]t does not currently serve as a source of drinking

17

water” and “[i]t cannot now and will not in the future serve as

a source of drinking water because … [i]t is mineral,

hydrocarbon or geothermal energy producing.” 40 C.F.R.

§ 146.4(a)-(b)(1). In the Councils’ view, the Board simply

concluded that the effect of the mining project upon the aquifer

would be “small” because the effect of any mining project upon

any exempted aquifer would be “small,” and saying no more

violated the requirement in the NEPA to disclose all adverse

environmental effects of a major federal action.

In accordance with the NRC’s usual practice, see

ENVIRONMENTAL REVIEW G UIDANCE FOR LICENSING ACTIONS

ASSOCIATED WITH NMSS PROGRAMS § 4.2.5.3 (2003)

(NUREG-1748), the FEIS defines “small” effects as effects

that are “not detectable … or so minor that they will neither

destabilize nor noticeably alter any important attribute of the

resource considered.” “Large” effects, by contrast, “are clearly

noticeable and are sufficient to destabilize important attributes

of the resource considered.” The definition of “medium”

effects is not important, for these definitions reveal the

Councils’ mischaracterization of the Board’s decision: The

Board did not conclude that any effect upon an exempted

aquifer would be “small”; rather, it found “there ha[d] been no

showing that the impacts from employing an ACL will be

‘clearly noticeable’ and ‘sufficient to destabilize important

attributes of [the resource].’” Strata III, 81 N.R.C. at ¶ 4.107

(quoting the FEIS). That is, the Board concluded the effect

would not be large, not that the effect would be small. This

conclusion is unavoidable: Because it is “exempt,” the only

resource the aquifer has to offer is the uranium that can be

mined from it, and we cannot see how actually mining the

uranium would destabilize an important attribute of the aquifer.

In any event, the exempt status of the aquifer was not the

only basis for the Board’s conclusion. The Board also noted

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“there have been no reported instances of an excursion from an

[ISL mining] facility negatively impacting drinking water.” Id.

It further stated that if Strata were to seek to restore the aquifer

to an ACL, “a license amendment would be required, triggering

another NEPA review, and a hearing opportunity, which will

involve the analysis of more specific water quality data.” Id.

Finally, it pointed out that the license itself included conditions

designed to prevent precisely the kind of environmental

damage the Councils fear. Id. In sum, the record belies the

Councils’ suggestion that the staff and the Board relied solely

upon the exempted status of the aquifer.

D. Incorrect Evaluation of the Risks of Off-Site

Groundwater Contamination (Contention No. 3)

Finally, the Councils petition for review of the

Commission’s treatment of Contention No. 3. The Ross

Project site is replete with improperly filled boreholes from

previous exploratory digs; the Councils’ concern is that the

presence of these unfilled boreholes presents an increased risk

of excursions.

1. Circular reasoning

The Councils’ initial criticism of the Commission

concerning Contention No. 3 is that it left undisturbed the

Board’s circular reasoning. Specifically, the Councils point to

a footnote in the Board’s order saying that the staff “has an

additional incentive … [to] ensure that [Strata’s] … ‘attempt’

to locate and [properly] abandon all [unfilled boreholes] …

embodies a level of effort that maximizes the potential for

eliminating excursions” because the staff will want “to fully

support its predicative finding of SMALL long-term impacts

from fluid migration.” Strata III, 81 N.R.C. at ¶ 4.128 n.66. In

other words, the staff will ensure that the long-term effects of

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excursions are small because it will want to vindicate its

characterization in the FEIS of long-term effects as small. The

Councils claim this reasoning is circular and violates the

NEPA, which requires that the FEIS to be a forward-looking,

predictive document, as opposed to a goal the agency staff have

an incentive to achieve.

The Board’s reasoning here is indeed somewhat circular,

but it is of minor importance to the Board’s decision. Its

reference in the margin to the staff’s desire to live up to the

FEIS as an “additional incentive” implies there are other, no

doubt more important, incentives at work. Indeed, the Board

focused primarily upon the terms of the license itself, which

required Strata to attempt to locate and to fill all boreholes in

the area, to undertake additional tests before beginning

production to prevent excursions, and to stop work

immediately upon detection of an excursion. Id. at ¶ 4.128. It

is only reasonable for the Board to rely upon the conditions in

the license to determine the likely environmental effects of

issuing the license, at least when the licensee — like Strata —

does not have a record of failing to comply with license

conditions. In analogous situations, we have permitted other

agencies to rely upon the actions they have required in

mitigation when predicting effects in an environmental

analysis under the NEPA. See Theodore Roosevelt

Conservation P’ship v. Salazar, 616 F.3d 497, 515-17 (D.C.

Cir. 2010) (rejecting the argument that taking into account

adaptive mitigation measures when measuring environmental

effects violated the NEPA); see also Sierra Club v. Van

Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (noting that

“we have found” “mitigation measures” can reduce the

environmental effects of a major federal action).

The Councils also accuse the Commission of ignoring

contrary data it was provided in expert reports by Drs. Lance

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Larson and Richard Abitz, which they claim show that other

companies with similar license conditions left boreholes

unfilled. We confess to being puzzled by this accusation, as

the Board specifically acknowledged this contrary evidence.

See Strata III, 81 N.R.C. at ¶ 4.124 (acknowledging both

experts’ testimony). The Board simply came to a contrary

conclusion on a technical subject as to which we owe the

Commission some deference. Chritton v. NTSB, 888 F.2d 854,

856 (D.C. Cir. 1989).*

2. Inconsistent treatment of similar data

The Councils’ second claim with regard to Contention No.

3 is that the Board, in its analysis of Contention No. 1, was

willing to accept that various well samples could be averaged

to produce baseline water quality data, see Strata III, 81 N.R.C.

at ¶¶ 4.32-4.34, whereas when it came to the data the Councils

presented in support of Contention No. 3, the Board was

unwilling to accept a similar averaging. Of course, it would be

arbitrary and capricious for the agency’s decision making to be

“internally inconsistent.” Air Transp. Ass’n of Am. v. Dep’t of

Transp., 119 F.3d 38, 43 (D.C. Cir. 1997). In this case,

however, there was no inconsistency.

The Councils misunderstand the Board’s reasoning. The

Board rejected Dr. Abitz’s testimony not because he averaged

various samples to decide whether two aquifers were mixing;

instead, the Board objected to his choice of a control.

Specifically, Abitz proposed that test well 14-18OZ be “taken

*

The Councils argue their real concern is with the terms of the

license itself — namely, that it requires Strata only to “attempt” to

locate and to fill the boreholes, instead of simply requiring Strata to

do so. We do not consider this argument because it was first raised

in the reply brief and hence is forfeit. See Great Lakes Chem. Corp.

v. NLRB, 967 F.2d 624, 630 (D.C. Cir. 1992).

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as [indicative of] the unmixed groundwater from the ore

horizon.” The Board deemed this proposal speculative because

Abitz provided no evidence to support it. Strata III, 81 N.R.C.

at ¶ 4.141. Based upon staff testimony, the Board instead

concluded that well 14-18OZ was likely to be unrepresentative

of unmixed groundwater and therefore a poor choice for a

baseline. Id. Obviously, there is no inconsistency in accepting

the average from a number of wells in one test while rejecting

the choice of a particular well as the control or baseline for

another.

III. Conclusion

The procedure followed by the Commission in this matter

was not ideal, but there was no harm and no foul under either

the NEPA or the APA, and hence there is no point in remanding

the matter on that score. Nor have the Councils identified any

substantive flaws in the Commission’s decisions. The

Councils’ petition for review is therefore

Denied.