Oglala Sioux Tribe v. NRC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2021 Decided August 9, 2022

No. 20-1489

OGLALA SIOUX TRIBE AND ALIGNING FOR RESPONSIBLE

MINING,

PETITIONERS

v.

U.S. NUCLEAR REGULATORY COMMISSION AND UNITED

STATES OF AMERICA,

RESPONDENTS

POWERTECH (USA), INC.,

INTERVENOR

On Petition for Review of Orders

of the Nuclear Regulatory Commission

Jeffrey C. Parsons argued the cause for petitioners. With

him on the briefs were Roger Flynn and Travis Stills.

James E. Adler, Senior Attorney, U.S. Nuclear Regulatory

Commission, argued the cause for respondents. With him on

the brief were Justin D. Heminger, Attorney, U.S. Department

of Justice, and Andrew P. Averbach, Solicitor, U.S. Nuclear

Regulatory Commission.

2

Christopher S. Pugsley argued the cause for intervenor-

respondent Powertech (USA), Inc. With him on the brief was

Anthony J. Thompson.

Before: WILKINS, RAO, and JACKSON, * Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: The Oglala Sioux Tribe and its non-

profit association Aligning for Responsible Mining seek

review of the Nuclear Regulatory Commission’s decision to

grant Powertech (USA), Inc., a source material license to

extract uranium from ore beds in South Dakota. The Tribe

maintains that the Commission failed to meet its obligations

under the National Environmental Policy Act and the National

Historic Preservation Act. We deny the Tribe’s petition

because the Commission adequately complied with the

relevant statutory and regulatory requirements.

I.

A.

Powertech sought to extract uranium from the Dewey-

Burdock area, which spans over 10,000 acres in South Dakota

and sits atop aquifers laced with uranium-rich ore beds. To

remove the uranium, Powertech proposed using a process

called “in situ recovery,” which involves pumping an aqueous

solution into underground ore beds to dissolve uranium;

pumping the resulting solution back to the surface; and

separating out the uranium for later processing into nuclear

fuel. Powertech also planned to install monitoring wells to

*

Circuit Judge, now Justice, Jackson was a member of the panel at

the time the case was argued but did not participate in the opinion.

3

ensure its operations did not adversely affect the surrounding

water quality.

Before beginning this project, Powertech was required to

secure a license from the Commission. See 42 U.S.C.

§§ 2014(z)(1), 2092 (prohibiting the transfer, delivery, or

receipt of “source material” like uranium “after removal from

its place of deposit in nature” without a license). The

Commission’s licensing process implicates a series of

intersecting statutory and regulatory requirements.

The Atomic Energy Act of 1954 (“AEA”), Pub. L. No. 83-

703, 68 Stat. 919 (codified as amended at 42 U.S.C. § 2011 et

seq.), and its implementing regulations set forth the

Commission’s procedures for licensing. When the Commission

receives a license application, it publishes a notice of the

proposed action in the Federal Register. 10 C.F.R. § 2.105. If a

party seeking to intervene in the process can show it would be

impacted by the license and that there is at least one genuine

and material dispute on a factual or legal issue, the Commission

must grant the intervenor a hearing. 42 U.S.C. § 2239(a)(1)(A);

10 C.F.R. § 2.309(a), (d), (f)(1). The Commission may delegate

these adjudicatory responsibilities to a three-member Atomic

Safety and Licensing Board (“Licensing Board”), 42 U.S.C. §

2241(a); 10 C.F.R. § 2.321, the decisions of which are

reviewable by the Commission, 10 C.F.R. §§ 2.341, 2.1212.

The Commission appointed a Licensing Board to adjudicate

challenges to Powertech’s license, and the Tribe intervened in

those proceedings.

The licensing process also requires the Commission to

comply with the National Environmental Policy Act

(“NEPA”), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified

as amended at 42 U.S.C. § 4321 et seq.). NEPA requires all

federal agencies proposing a “major Federal action[]

significantly affecting the human environment” to prepare “a

4

detailed statement” analyzing the impacts of that action. 42

U.S.C. § 4332(2)(C). This environmental impact statement

(“EIS”) must discuss adverse impacts “which cannot be

avoided,” “alternatives to the proposed action,” long- and

short-term effects, and “any irreversible and irretrievable

commitments of resources” involved in the action. Id.; see also

10 C.F.R. § 51.20(b)(8) (specifying an EIS is required when

issuing a source material license for uranium extraction). The

Commission must publish a notice of intent to prepare an EIS,

and it must conduct an “appropriate scoping process” with

those affected by the proposed action to determine the issues

and impacts that will be analyzed in the EIS. 10 C.F.R.

§§ 51.26(a), 51.27(a), 51.28, 51.29(a). In particular, the

Commission must invite “[a]ny affected Indian tribe” to

participate in the scoping process, id. § 51.28(a)(5), and

analyze “significant problems and objections raised by” those

tribes in the EIS, id. § 51.71(b); see also id. § 51.90.

Powertech’s license also implicated Section 106 of the

National Historic Preservation Act (“NHPA”), which requires

an agency, “prior to the issuance of any license, [to] take into

account the effect of the undertaking on any historic property.”

54 U.S.C. § 306108; see also NHPA, Pub. L. No. 89-665,

§ 106, 80 Stat. 915, 917 (1966). “Historic property” is defined

capaciously to include “any prehistoric or historic district, site,

building, structure, or object included on, or eligible for

inclusion on, the National Register [of Historic Places]” or any

“artifacts, records, and material remains relating” to such. 54

U.S.C. § 300308. Before issuing a license, the Commission

must “consult with any Indian tribe … that attaches religious

and cultural significance to historic properties that may be

affected” by the license, giving tribes a “reasonable

opportunity” to identify concerns and help resolve any adverse

effects. 36 C.F.R. § 800.2(c)(2)(ii). In light of the substantial

overlap between the NHPA and NEPA inquiries, an EIS

5

“should include consideration of the … likely effects on

historic properties.” Id. § 800.8(a)(1); see also id. § 800.8(c)

(allowing agencies to use the NEPA process in lieu of the

normal Section 106 process).

B.

With respect to NEPA and NHPA compliance, the agency 1

had already prepared a “generic” EIS in 2009 to address the

environmental impacts of in situ recovery methods within the

broader region in which the Dewey-Burdock Project is located.

The agency was also required to create a supplemental EIS to

address the specific impacts of Powertech’s project. See 10

C.F.R. §§ 51.20(b)(8), 51.92. Only the supplement is at issue

in the Tribe’s petition. The agency initiated the EIS process by

inviting twenty tribes that could be affected by Powertech’s

operations and requested assistance with identifying cultural

and historical resources, including sites, objects, and other

resources that carry cultural or religious significance. The

Oglala Sioux Tribe was among those invited to participate.

By 2012, the agency and participating tribes settled on

several preliminary conclusions. First, the tribes’ involvement

was essential as they possessed an “intimate cultural

knowledge” of the Dewey-Burdock area and could identify

“not only site-specific physical impacts, but intangible impacts

to the integrity of the area from cultural, historical, spiritual,

and religious perspectives.” Second, it was necessary to survey

1

While these steps in the AEA, NEPA, and the NHPA have been

delegated to various Commission staff, we refer to these actions as

those of the agency or Commission because the Commission is

ultimately responsible for complying with statutory and regulatory

requirements.

6

the area to identify those impacts. The Oglala Sioux Tribe

disagreed, however, with respect to the methods for surveying

the Dewey-Burdock area. When negotiations over the survey

broke down, the Commission issued a draft EIS for public

comment in late 2012 and explained it would later survey the

area and supplement the EIS as necessary.

In 2013, the Commission conducted a field survey of the

Dewey-Burdock area with seven participating tribes (“2013

Survey”) and received reports from three tribes identifying

cultural resources and historic properties in the area. The

Oglala Sioux Tribe refused to participate because it

disapproved of the 2013 Survey’s methods and timing, as well

as the amount of compensation provided for participating.

Using the reports from the other tribes, the Commission

prepared and issued a final EIS in January 2014. A few months

later, it issued Powertech a license and finalized a

“programmatic agreement” that established a protocol for

dealing with NHPA historic properties discovered after

Powertech begins operating. See 36 C.F.R. §§ 800.4(b)(2),

800.14(b) (permitting the Commission to create protocols to

identify and protect historic properties after the issuance of a

license).

C.

The Tribe intervened before the Licensing Board assigned

to Powertech’s application and raised numerous challenges to

the application and the agency’s NEPA and NHPA processes.

The Board found only some of the Tribe’s contentions merited

a hearing, and later found most of those claims meritless. The

Board determined, however, that the license was issued without

individually consulting the Tribe as required by the NHPA and

without evaluating the Tribe’s cultural resources in the EIS as

required by NEPA. The Commission affirmed the Board’s

finding of NEPA and NHPA violations but left the license in

7

place because the Tribe had failed to show “irreparable harm.” 2

See Oglala Sioux Tribe v. NRC (Oglala Sioux I), 896 F.3d 520,

522–23 (D.C. Cir. 2018); see also id. at 532–33 (rejecting the

Commission’s “irreparable harm” standard and remanding

without vacatur of the license).

The agency sought to remedy the NEPA and NHPA

deficiencies by meeting with the Tribe, teleconferencing, and

exchanging letters. Eventually, the agency offered to conduct

another survey. But the Tribe maintained its objections, leading

the agency to abandon its efforts, return to the Licensing Board,

and argue it had done enough to satisfy NEPA and the NHPA.

In its 2017 decision, the Board partially agreed, finding the

Commission had reasonably consulted with the Tribe for

NHPA purposes but still needed to work with the Tribe to

identify cultural resources under NEPA.

By March 2018, the agency and the Tribe had not agreed

to a specific survey method, but they had agreed to an overall

approach that involved a qualified contractor, other Lakota

Sioux tribes, tribal elders, and iterative opportunities to survey

the Dewey-Burdock area (“March 2018 Approach”). In June,

however, the Tribe switched course and proposed a different

approach that would have cost over $2 million to execute. The

agency rebuffed the Tribe’s proposal and returned to the Board,

arguing NEPA was satisfied. The Board concluded that while

the March 2018 Approach was reasonable and not negotiable

going forward, that Approach did not include a specific survey

2

Because agency proceedings were still pending, we did not reach

the merits of the NEPA and NHPA determinations in Oglala Sioux

I. See 896 F.3d at 527. On remand, the Commission left Powertech’s

license in place, but required Powertech to report 60 days in advance

of taking any action that would require a license to perform, avoiding

any potential harm to the Tribe’s cultural resources.

8

method. Accordingly, the agency had to resume negotiations

with the Tribe to establish a survey method.

The agency and the Tribe unsuccessfully attempted to

reach accord yet again. In February 2019, the agency’s

contractor proposed a survey methodology that included a

blend of scientific methods used in other tribe-related surveys,

software to accurately document site locations, oral interviews

to supplement field observations, detailed steps to survey the

area, and a synthesized report that would explain the results

(“February 2019 Methodology”). The Tribe rejected that

methodology and tried instead to renegotiate the March 2018

Approach and raise NHPA issues already resolved by the

Board.

In its fifth and final decision, the Licensing Board

reaffirmed the reasonableness of the March 2018 Approach and

found that the February 2019 Methodology was reasonable as

well. Even though the agency had not carried out its survey, the

Board also decided the agency had satisfied NEPA because the

Tribe’s intransigence made its cultural resource information, in

effect, unavailable. The Board further reasoned that there was

no need for the agency to amend the EIS to explain the

unavailability of this information because the Board’s

administrative decisions had adequately supplemented the EIS.

The Commission affirmed the Board’s decisions, and the Tribe

petitioned this court for review.

II.

The AEA confers jurisdiction to review the Commission’s

final orders under the familiar standards outlined in the

Administrative Procedure Act (“APA”). See 42 U.S.C.

§ 2239(b)(1); see, e.g., Massachusetts v. NRC, 924 F.2d 311,

332 (D.C. Cir. 1991). Those standards also govern our review

of the Tribe’s NEPA and NHPA challenges. See United

9

Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933

F.3d 728, 738 (D.C. Cir. 2019). We will therefore set aside the

Commission’s determinations if “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with” the

AEA, NEPA, or the NHPA. See 5 U.S.C. § 706(2)(A). Under

these standards, we do not supplant an agency’s “technical

judgments and predictions” so long as the agency’s decision is

“reasoned and rational.” Blue Ridge Env’t Def. League v. NRC,

716 F.3d 183, 195 (D.C. Cir. 2013) (cleaned up).

III.

The Tribe maintains that the Commission failed to comply

with NEPA’s requirements. NEPA is a purely procedural

statute that “does not mandate particular results, but simply

prescribes the necessary process.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989). Agencies may

decide that “other values outweigh the environmental costs”

and may move forward with a proposed action so long as they

undergo the necessary process. Id. Our role is “simply to ensure

that the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is not

arbitrary or capricious.” Indian River Cnty. v. U.S. Dep’t of

Transp., 945 F.3d 515, 527 (D.C. Cir. 2019) (cleaned up). We

apply these standards to the Tribe’s arguments regarding the

Commission’s failure to conduct a formal scoping of the

project’s impact, and the adequacy of the EIS with respect to

the Tribe’s cultural resources, the hydrogeologic effects of the

project, the disposal of byproduct material, and mitigation

strategies.

A.

At the outset of the NEPA process, Commission

regulations require the agency to conduct an “appropriate

scoping” of a project’s environmental impact. 10 C.F.R.

10

§ 51.26(a). Scoping allows the agency, among other things, to

define the proposed action by identifying significant issues and

filtering out those that are peripheral. Id. § 51.29(a)(2)–(3). The

agency must also invite “[a]ny affected Indian Tribe” to

participate in the scoping process and must share a summary of

its conclusions with those who participated in the process. Id.

§§ 51.28(a)(5), 51.29(b). It is undisputed that the agency never

formally engaged in scoping nor provided a summary of its

findings. The Board initially rejected the Tribe’s request for a

hearing on scoping because it thought the agency’s

supplemental EIS was exempt from that process. The

Commission disagreed but thought the Board’s error was

harmless—the Tribe had “not demonstrated harm or prejudice

resulting from the lack of a separate, formal scoping process on

the site-specific [EIS].” 3

Before us, the Tribe renews this scoping challenge. We

need not decide the merits of this claim, however, because even

assuming the Commission erred in omitting a formal scoping

analysis, such error was harmless. Under the APA, courts take

“due account … of the rule of prejudicial error” when

reviewing agency action. 5 U.S.C. § 706. We have applied this

rule in the NEPA context when the agency has undertaken the

required analysis but “failed to comply precisely with NEPA

procedures.” Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C.

3

In Oglala Sioux I, we determined the Commission could not require

a heightened showing of “irreparable harm,” but we left open

whether there was some “version of a harmless error rule that the

Commission may apply.” 896 F.3d at 538. The Tribe argues the

Commission has no authority to make a harmlessness finding under

NEPA. Because we conclude the agency’s failure to conduct a

formal scoping process was harmless error under the APA, we do not

reach the question of whether the Commission has authority to

excuse violations of NEPA on similar grounds.

11

Cir. 2006); see also Shinseki v. Sanders, 556 U.S. 396, 407

(2009) (explaining that harmless error review requires the

“case-specific application of judgment, based upon

examination of the record”). Here the agency placed notices in

local papers, received comments from those notices, and met

with various interested parties—including tribal authorities—

to gather information on the Dewey-Burdock Project before

drafting an EIS. As the EIS explains, “[t]he purpose of these

meetings was to gather additional site-specific information to

support the [Commission’s] environmental review.” Even if

these efforts did not precisely satisfy formal scoping

requirements, the agency’s efforts accomplished the same

objectives, and the Tribe makes no argument that the failure

impacted the project’s actual scope. See 10 C.F.R. § 51.29(a).

In the context of this site-specific EIS, there is no evidence that

the absence of formal scoping affected the agency’s NEPA

process or resulted in any prejudice to the Tribe. The Tribe’s

petition cannot succeed on this ground.

B.

The Tribe next argues the Commission failed to satisfy

NEPA because it did not adequately address the Tribe’s

cultural resources in the EIS. The parties do not question the

Tribe’s outsized historical connection to the Dewey-Burdock

area, and the importance of considering those resources in

reviewing Powertech’s application. But the Commission

affirmed the Board’s finding that this information was

effectively unavailable because of the Tribe’s intransigence.

This finding was made in published orders, but never

incorporated into the EIS.

NEPA requires agencies to take “a ‘hard look’ at ‘every

significant aspect of the environmental impact’ of a proposed

major federal action.” Indian River Cnty., 945 F.3d at 533

(quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97

12

(1983)). An agency does not necessarily violate NEPA,

however, when it is unable to acquire information relevant to

its analysis. Regulations promulgated by the Council on

Environmental Quality (“CEQ”) state that when important

information is “unavailable,” agencies can satisfy NEPA by

explaining in the EIS why the information was unavailable and

what actions the agency took to address that unavailability. 40

C.F.R. § 1502.22(b) (2020). 4

The Tribe asserts the Commission is bound by Section

1502.22’s requirement that an unavailability statement be

within an EIS, but the Commission has maintained that as a

historically independent agency, CEQ regulations are only

non-binding guidance. We need not reach this thorny question 5

because even assuming the EIS failed to satisfy NEPA’s

requirements as interpreted by CEQ, we have repeatedly held

that remand is unnecessary if an agency has incorporated the

required analysis into a publicly accessible decision before the

EIS is challenged in federal court. NRDC v. NRC, 879 F.3d

1202, 1211 (D.C. Cir. 2018).

For example, when the Commission failed to adequately

discuss aquifer restoration in an EIS, we concluded that it was

sufficient for the Board to evaluate that information during a

subsequent hearing and present its findings in a publicly

accessible order. Id. at 1209–11. We explained the petitioners

“ha[d] not pointed to any harmful consequence of the

4

This provision has since been re-codified at Section 1502.21. See

Update to the Regulations Implementing the Procedural Provisions

of the National Environmental Policy Act, 85 Fed. Reg. 43,304,

43,366–67 (Jul. 16, 2020).

5

See, e.g., Food & Water Watch v. U.S. Dep’t of Agriculture, 1 F.4th

1112, 1119 (D.C. Cir. 2021) (Randolph, J., concurring) (questioning

CEQ’s authority to promulgate binding regulations).

13

supplementation” in this manner, and there was “nothing to be

gained by remanding the matter to the Commission … to

consider the same information again.” Id. at 1210. Moreover,

“common sense counsel[ed] against prolonging this dispute by

requiring an utterly pointless proceeding on remand.” Id. at

1212; see also Friends of the River v. FERC (FOTR), 720 F.2d

93, 106–08 (D.C. Cir. 1983) (including the required analysis in

a publicly accessible opinion “composed after due

investigation and before the matter was brought to court” made

remand to supplement the EIS “pointless” and an “insistence

on form”).

For similar reasons, even if we assume the EIS

inadequately accounted for the unavailability of the Tribe’s

cultural resources, remanding for the agency to supplement the

EIS is unnecessary because the Licensing Board’s decisions,

which were summarily affirmed by the Commission, satisfied

any violation of NEPA. The Board explained the Tribe’s

cultural resource information was relevant and that of the tribes

affected, “[t]he Oglala Sioux Tribe ha[d] shown it has the most

direct historical, cultural, and religious ties to the area.” The

Board further explained the information was unavailable

because of “the Tribe’s demonstrated unwillingness or

unjustifiable failure to work” with the Commission, with no

“reasonable assurance” of a future accord. Without the Tribe’s

participation, its cultural resource information “would not

otherwise be obtainable” and thus was unavailable.

In short, the agency explained the unavailability of this

information and presented the substance of its findings in

publicly accessible decisions after on-the-record hearings. The

Tribe does not dispute the reasonableness or accuracy of the

Board’s explanations but maintains only that they had to be

within the EIS. In these circumstances, a remand for the agency

14

to update its EIS and repeat the Board’s unchallenged findings

would be “utterly pointless.” See NRDC, 879 F.3d at 1212.

The Tribe contends that NRDC and FOTR do not apply

because, in those cases, the agencies eventually conducted the

required NEPA analysis, while here the Commission never

conducted a survey for the Tribe’s cultural resources. Yet

remand was unnecessary in those cases because the agency had

remedied the specific NEPA failure alleged by the petitioners.

NRDC, 879 F.3d at 1209–11; FOTR, 720 F.2d at 106.

Similarly, the Tribe alleged a failure to include an

unavailability statement in the EIS, and that specific failure was

remedied by the Board’s publicly accessible orders, making

remand unnecessary.

The Tribe maintains in the alternative that some

information about its cultural resources was available since the

Commission could have conducted oral interviews with tribal

members. But it is clear from the parties’ course of dealing that

oral interviews alone were never considered to be an adequate

means of gathering the required information. Rather, the parties

agreed that only the Tribe could accurately identify its cultural

resources and that a survey was necessary to adequately

identify those resources. Oral interviews would then be used to

supplement the Commission’s understanding after a

preliminary survey. Even the Tribe’s alternative proposal

placed oral interviews after, and supplemental to, an initial

survey. The EIS also suggested that oral interviews alone

would not be sufficient based on an earlier study of the area

that found that “most of the tribal members interviewed knew

their people had regular ceremonial, cultural, and religious

activity in the Black Hills … however, no one could pinpoint

present cultural, ceremonial, or religious use in the proposed

area.” Similarly, in affidavits tribal members averred general

15

knowledge about cultural resources in the area but did not

identify specific resources.

Given this course of dealing, the Board determined that the

survey and oral interviews were an integrated approach to

discovering the Tribe’s cultural resources and concluded that,

without a survey, the information was unavailable. The

Commission affirmed, explaining that oral interviews alone

“would not have satisfied [the] criteria that the parties agreed

would be necessary” to identify cultural resources. Based on

the record and the parties’ understanding, we cannot say the

agency committed a “clear error of judgment.” See Marsh v.

Ore. Nat. Res. Council, 490 U.S. 360, 378 (1989).

The Tribe also faults the Commission for not spending

enough time or money on a survey and effectively forcing the

Tribe to subsidize it. Yet the Tribe cites no authority requiring

the agency to either compensate the Tribe for its participation

or to conduct a survey in a particular manner. NEPA requires

agencies to “utilize a systematic, interdisciplinary approach” to

identify and analyze environmental concerns, but agencies

have leeway to choose how to give “appropriate consideration”

to environmental concerns and “economic and technical

considerations.” 42 U.S.C. § 4332(2)(A)–(B). That the agency

exercised its discretion to use compensated surveys as a

method of gathering cultural resources does not entitle the

Tribe to demand more compensation or a different survey

method. Nor does the record support the Tribe’s assertion that

the Commission somehow “foist[ed]” its NEPA obligations

onto the Tribe and required the Tribe to subsidize the survey.

Cf. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

985 F.3d 1032, 1048 (D.C. Cir. 2021). It planned to expend

substantial resources on the survey and coordinated with

Powertech to provide additional compensation for tribal

members that participated in the survey.

16

The Tribe fails to make out a NEPA violation requiring

remand, and we find the Commission’s efforts to gather

cultural resources information were reasonable.

C.

The Tribe next faults the Commission’s analysis of

hydrogeologic data at the Dewey-Burdock Project. First, the

Tribe argues that the agency impermissibly delayed analyzing

water quality baseline data because it allowed Powertech to

gather data after the license was issued. This deferral, the Tribe

contends, violates NEPA by allowing the agency to “act first

and comply later.” See Oglala Sioux I, 896 F.3d at 523. While

the agency and Powertech agreed to post-licensing data

collection, that fact alone does not show the pre-licensing

hydrogeological analysis was insufficient. It is certainly

possible for an agency to adequately analyze hydrogeologic

data in an EIS and also contemplate further analysis during

operations. Here, the EIS included meticulous analysis of

contaminant levels present in the area’s groundwater and set

forth plans for restoring water quality using pre-licensing data.

Because water quality baselines cannot be “establish[ed]

definitively … until an in situ leach well field has been

installed,” it was not unreasonable for the agency to augment

pre-licensing data with further testing after Powertech installed

its well field but before it began operations. See Hydro Res.,

Inc., 63 N.R.C. 1, 6 (2006).

The Tribe also argues the Commission failed to analyze

the impacts of preexisting boreholes in the Dewey-Burdock

area and left these issues for after the license was granted. We

disagree. The record demonstrates the Commission gave these

impacts a hard look in the EIS: the agency identified 4,000

previously drilled exploration boreholes in addition to the 115

drilled by Powertech, analyzed the impact of those boreholes

on vertical leakage, and outlined steps to mitigate those effects.

17

It was also entirely reasonable for the Commission to require

that Powertech fix improperly plugged historic boreholes after

receiving a license.

As to the hydrogeologic concerns raised by the Tribe, we

find the agency “adequately considered and disclosed the

environmental impact of its actions.” See Indian River Cnty.,

945 F.3d at 527 (cleaned up).

D.

The Tribe also raises a series of arguments challenging the

Commission’s treatment of the disposal of byproduct material

generated from uranium extraction. On three separate

occasions, the Tribe argued before the Licensing Board that

Powertech’s application and the EIS inadequately addressed

byproduct material. On each occasion the Board refused to hold

a hearing on those contentions, and the Commission affirmed.

The Tribe now argues the Board was required to hold a hearing

to address byproduct material because the issues presented a

genuine legal dispute. See 10 C.F.R. § 2.309(f)(1)(vi).

The Tribe first argues the agency erroneously issued

Powertech a license even though its application lacked a site-

specific disposal plan for byproduct material. This argument is

foreclosed by the plain text of the Commission’s regulations.

Although some license applications must include a proposal for

byproduct disposal, id. pt. 40 app. A, this requirement did not

apply to Powertech’s application. It applies only for “sites

formerly associated with [uranium] milling.” Id. § 40.31(h)

(emphasis added). As no one disputes the Dewey-Burdock

Project is a new uranium mining site, the Commission now

argues that Section 40.31(h) forecloses the Tribe’s argument.

Although the Commission’s interpretation of

Section 40.31(h) is plainly correct, this was not the reason the

Commission relied on below. In affirming the denial of a

18

hearing, the Commission explained that the disposal plan

requirement and surrounding regulations in Appendix A “are

inapplicable to in situ recovery facilities.” 6 We review an

agency’s actions in light of the reasons offered at the time of

the agency’s decision, not its post hoc rationale offered in

litigation. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

Here, however, the meaning of the regulation is entirely clear

and “there is not the slightest uncertainty as to the outcome of

[the] proceeding on remand,” so we “can affirm … on grounds

other than those provided in the agency decision.” Envirocare

of Utah, Inc. v. NRC, 194 F.3d 72, 79 (D.C. Cir. 1999) (cleaned

up); see also Manin v. Nat’l Transp. Safety Bd., 627 F.3d 1239,

1243 & n.1 (D.C. Cir. 2011) (noting this “limited exception” to

the Chenery principle). Affirmance in such cases “entails

neither an improper judicial invasion of the administrative

province nor a dispensation of the agency from its normal

responsibility.” Envirocare, 194 F.3d at 79 (quoting Henry J.

Friendly, Chenery Revisited: Reflections on Reversal and

Remand of Administrative Orders, 1969 DUKE L.J. 199, 211).

When an agency raises a purely legal argument for the first time

in litigation, a court may consider that argument if it is both

clearly correct and would render remand pointless under the

harmless error standard. See 5 U.S.C. § 706. The Dewey-

Burdock Project is indisputably not a former uranium milling

site, and therefore a remand for the Commission to address this

issue would be pointless.

6

The Commission relied on Hydro Resources, Inc., 50 N.R.C. 3, 8–

9 (1999), to conclude that the relevant regulations apply only to

traditional uranium mining, not in situ recovery operations. The

Tribe waited until its reply brief to challenge the Commission’s

reliance on this decision and thus forfeited its opportunity to contest

this aspect of the Commission’s reasoning. See Lake Carriers’ Ass’n

v. EPA, 652 F.3d 1, 10 n.9 (D.C. Cir. 2011) (per curiam).

19

The Tribe next argues “[t]he EIS does not contain [a]

NEPA analysis of the disposal proposal, foreseeable impacts,

alternatives, or mitigation measures” related to byproduct

material. 7 We disagree. In the EIS, the agency thoroughly

analyzed solid byproduct material by calculating the total

byproduct accumulation of both Powertech’s preferred and

alternative disposal methods; explaining the process for

temporary storage and transfer to a licensed disposal facility;

identifying White Mesa as the presumed disposal facility and

ensuring that facility has the capacity to accept Dewey-

Burdock byproduct material; acknowledging that White Mesa

still needed state authorization to accept this material;

determining that transportation impacts will be small

regardless of which disposal site Powertech uses; explaining

the low risks and logistics of transporting byproduct material

to White Mesa in accordance with Department of

Transportation regulations; and mitigating any potential risk of

improper storage by requiring Powertech to acquire and

maintain a disposal contract before beginning operations. This

analysis more than adequately satisfies NEPA’s “hard look”

requirement and undercuts the Tribe’s claims that the agency

failed to address byproduct material in the EIS.

The Tribe also maintains the EIS did not include an

analysis of the impacts of Powertech failing to secure a disposal

contract before beginning operations. NEPA requires an

analysis of only those impacts reasonably likely to occur, not

impacts that are hypothetical. See Indian River Cnty., 945 F.3d

at 533 (“NEPA … requires that an agency take a ‘hard look’ at

the reasonably foreseeable impacts of a proposed major federal

action.”) (cleaned up). Yet any impacts related to Powertech’s

7

The Commission argues that the Tribe failed to raise these

arguments below, but the record demonstrates otherwise.

20

failure to secure a disposal contract are purely hypothetical

because the conditions placed on Powertech’s license prohibit

initiating operations without first securing a disposal contract.

Without a disposal contract, there will be no operations, no

byproducts, and no related environmental impacts.

Accordingly, analysis on this issue was not required.

We are also not persuaded by the Tribe’s concerns that the

EIS did not include an analysis of the impact of stranded

byproduct material at the Dewey-Burdock Project should the

disposal contract fall through after operations have begun. The

Tribe relies on New York v. NRC, in which we found the

Commission ran afoul of NEPA by failing to “explain the

environmental effects of a failure to secure a permanent

facility” for spent nuclear fuel. 681 F.3d 471, 479 (D.C. Cir.

2012). But the facts of that case are easily distinguishable as

“there [was] not even a prospective site for a [disposal]

repository, let alone progress toward the actual construction of

one.” Id. at 474. By contrast, the Commission identified the

likely disposal site for Powertech’s byproduct material, and the

Tribe only speculates, with no record support, that Powertech

would be unable to secure a replacement disposal contract if

necessary.

Because none of the Tribe’s arguments related to

byproduct material raises a genuine dispute of law, the agency

was not required to hold an evidentiary hearing to address

them.

E.

The Tribe’s final NEPA challenges concern the adequacy

of the mitigation analysis in the EIS. Discussing mitigation

measures is an important aspect of an EIS because NEPA

requires agencies to “discuss the extent to which adverse

effects can be avoided” in “sufficient detail to ensure that

21

environmental consequences have been fairly evaluated.”

Robertson, 490 U.S. at 352. Fairly evaluating mitigating

strategies does not, however, require an agency to have

“actually formulated and adopted … a fully developed plan

that will mitigate harm before an agency can act.” Id. at 352–

53. Like other aspects of an agency’s NEPA analysis,

mitigation efforts must be “adequately considered.” See Indian

River Cnty., 945 F.3d at 527. An agency cannot simply leave

mitigation measures as “TBD,” relying on “anticipated-but-

unidentified” measures without further analysis. Am. Rivers v.

FERC, 895 F.3d 32, 54 (D.C. Cir. 2018). The Commission

easily satisfied its obligation here.

The Tribe faults the agency for simply listing mitigation

measures without discussing their efficacy. The mitigation

analysis in the EIS, however, was not limited to the list

referenced by the Tribe. As the Board and Commission pointed

out in their decisions, the Tribe had “completely overlooked”

other portions of the EIS, “which contained extensive analysis

of mitigation measures” relating to issues such as “wildlife

protection, wellfield testing, air impacts, and historical well

hole plugging and abandonment.” Nonetheless, in its petition

for review, the Tribe continues to ignore the comprehensive

discussion of mitigation throughout the EIS and instead focuses

only on the EIS’s summary list of mitigation measures. The

Tribe fails to engage with the agency’s actual mitigation

analysis, and from our review of the record, the agency more

than satisfied NEPA’s “hard look” requirement.

We also disagree with the Tribe that the EIS improperly

deferred a mitigation analysis of cultural and historic resources,

groundwater quality, air impacts, waste disposal, wildlife

protection, and storm water control until after Powertech

obtained its license. For each of the Tribe’s identified issues,

the EIS extensively analyzed both impacts and mitigation

22

measures. Ignoring these analyses, the Tribe relies on obscure

transcript quotes, letters, and responses to draft EIS comments.

But these excerpts do not suggest that the agency deferred its

NEPA mitigation analysis on any of the identified topics. Many

of these excerpts even cross-reference the substantive sections

of the EIS discussing relevant mitigation measures. More to the

point, an agency does not run afoul of NEPA when it

adequately analyzes mitigation measures and then provides

that it will continue to develop those plans after publishing an

EIS. And where, as here, the agency carefully analyzes

environmental impacts and ways to reduce or avoid those

impacts, additional efforts to mitigate impacts in the future

would seem to further the purposes of NEPA, rather than to

constitute a procedural violation.

***

In sum, the Tribe fails to demonstrate any NEPA

deficiencies that require setting aside the Commission’s

decisions.

IV.

The Tribe raises a series of challenges under the NHPA,

but these do not merit remand because the Commission

satisfied its statutory obligations.

First, the Tribe argues the agency did not adequately

consult with the Tribe. NHPA regulations require the agency

to give the Tribe a “reasonable opportunity” to identify historic

properties, to express concerns regarding those properties, and

to participate in the resolution of those concerns. 36 C.F.R.

§ 800.2(c)(2)(ii)(A). The Commission invited the Tribe’s

participation in the 2013 Survey and engaged with the Tribe

over a two-year period as described above. The Tribe’s refusal

to participate in the 2013 Survey and its challenges to the

agency’s methodology do not vitiate the reasonable

23

opportunity the Tribe was, in fact, afforded. The Commission

satisfied its consultation obligations under the NHPA.

Second, the Tribe maintains the agency impermissibly

failed to survey the Dewey-Burdock area for the Tribe’s

historic properties. NHPA regulations permit an agency to

conduct a survey as part of its efforts to identify historic

properties, but agencies are free to use a survey or some other

method to gather information. See id. § 800.4(b)(1) (agency’s

identification efforts “may include … [a] field survey”)

(emphasis added). An agency may therefore satisfy its NHPA

obligations without conducting a survey or conducting it in a

specific way.

Finally, the Tribe suggests the agency impermissibly

postponed identifying historic properties until after Powertech

had begun operations. NHPA regulations, however, expressly

contemplate this approach. The Commission can employ a

phased identification and evaluation of historic properties

through a programmatic agreement “[w]hen effects on historic

properties cannot be fully determined prior to approval of an

undertaking.” Id. § 800.14(b)(1)(ii); see also id. § 800.4(b)(2).

The agency here recognized that some tribal historic properties

could be identified only after Powertech broke ground and

therefore sought to create a process whereby newly discovered

properties could be protected and evaluated for listing on the

National Register of Historic Places. The Commission

reasonably satisfied its obligations under the NHPA’s

regulatory scheme.

***

For the foregoing reasons, we deny the Tribe’s petition for

review.

So ordered.