Petition for Writ of Certiorari — Morris v. Nuclear Regulatory Commission
Supreme Court brief2010
Ask Donna
What actually matters in this document.
Text
oupreme Court, U.o.
FILED
190-368 SEP 15 2010
No. 10°___ QFFICE OF THE CLERK
IN THE
Supreme Court of the United States
ee ss
MARILYN MORRIS, ET AL..
Petitioners,
5
U.S. NUCLEAR REGULATORY COMMISSION, ET AL.,
Respondents.
On Petition for A Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIOKARI
Diane Curran Eric Jantz
Counsel of Record New Mexico Environmental
Harmon, Curran, Spielberg Law Center
& Kisenberg, L.L.P. Suite 5
Suite 600 1405 Luisa Street
1736 M Street N.W., Santa Fe, NM 87505
Washington, D.C. 20035 (505) 989-9022
(202) 328-3500
dcurran@harmoncurran.com
Counsel for Petitioners Eastern Navajo Diné Against Ura-
nium Mining and Southwest Research and Information Cen-
ter
Other counsel listed inside cover
Levon Henry
Jesse Traugott
DNA-People’s Legal
Services, Inc.
P.O. Box 306
Window Rock,
Arizona 86515
(928) 871-415]
Zackeree Kelin
Kelin Law Firm
1309 Rio Grande
Boulevard N.W.
Albuquerque,
New Mexico 87104
(505) 242-7200
Counsel for Petitioners Marilyn Morris and Grace Sam
QUESTIONS PRESENTED
1. In determining whether public radiation
doses from a proposed new uranium mine would
exceed regulatory limits, could the U.S. Nuclear
Regulatory Commission (“NRC”) interpret 10
C.F.R. § 20.1301(a)(1) to allow it to ignore ra-
dioactive emissions from existing uranium mine
waste on the mine site?
2. Where, in establishing a groundwater res-
toration surety for a proposed uranium mine,
the NRC failed to follow its own criteria for pro:
tecting the drinking water on the site, did the
NRC violate the Atomic Energy Act’s prohibi-
tion against licensing operations that are tnimi-
cal to public health and safety”?
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
The following parties were petitioners below and
are petitioners here: Grace Sam, Marilyn Morris,
Eastern Navajo Dine Against Uranium Mining
(““ENDAUM”), and the Southwest Research and In-
formation Center (““SRIC”). The United States and
the United States Nuclear Regulatory Commission
(“NRC” or “Commission”) were the respondents be-
low and are respondents here. Hydro Resources, Inc.
(“HRI”) was a respondent-intervenor below and is
also a respondent-intervenor here.
ENDAUM is a nonprofit organization incorpo-
rated under the laws of the Navajo Nation and is ex:
empt from taxation under Section 501(c)(3) of the In-
ternal Revenue Code. ENDAUM does not issue stock
and no parent corporation or publicly held corpora-
tien has ten percent or more ownership interest.
ENDAUM’s membership consists of concerned com-
munity members in Church Rock and Crownpoint,
who are predominantly members of the Navajo Na-
tion. ENDAUM’s mission is to protect public health
and the water of the communities of Church Rock
and Crownpoint.
SRIC is a nonprofit organization incorporated
under the laws of New Mexico and is exempt from
taxation under Section 501(c)(3) of the Internal Rev-
enue Code. SRIC does not issue stock and no parent
corporation or publicly held corporation has ten per-
cent or more ownership interest. SRIC’s mission is
to promote the health of people and communities,
protect natural resources, ensure citizen participa-
tion in government decisions that affect their wel-
11
fare, and secure environmental and social justice for
present and future generations.
Marilyn Morris and Grace Sam are individual
members of the Navajo Nation who reside and graze
livestock near the proposed Church Rock mine sites.
1V
TABLE OF CONTENTS
QUESTIONS PRESENTED ........ccccccccccssccsescceseess
RM PE GAPECEERET LED csvicesscccseccecoseccccaconeseanssneba
Bete OE AAS THPORITIEG ........0cccccccsssasonsecsesecsas
MPUUEEOEMED SEMGEAT WY ociscccesessecsssascecesoscnesécosasensauepean
ME 5.55 cc bacixaecancocasacdecnsteeedeess eesneoneananee
STATUTES AND REGULATIONS INVOLVED .
STATEMENT OF THE CASE...................cceseeseeees
Pi, FPOCOUUIA TEIBGORY os.cocccsecccvcssesecesssscscssasennes
B. Radioactive Air Emissions at Section 17 ..
C. Groundwater Quality at Church Rock
TE ics aves ccnicksancheciséacasscesncs erie
1. Groundwater quality and ISL mining .
2. NRC requirements for restoration
and financial surety ...............ccccsssescerees
a. Restoration goals .................c:eceee
D. PRMPBCIA SUTEEY oo ..c.ecssssaceee
er SEI BIIOW ~ oi. 0ssessssccsnadecsesossentaneeeee
1. Radioactive air emissions at Section 17
2. Groundwater restoration goals and
murety for Section & ..........c.cscccssssssciseans
REASONS FOR GRANTING THE WRIT ...........
oi vcucensceneneesntesasisnsasseneuvnnsaneenn een
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals,
Violates Fundamental Principles of Statutory
Interpretation as Outlined by this Court. ......... 12
9
@*eee a
9
eeeee ae
es 5
ee 9
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC's
Interpretation of the Regulation .................. 12
B. The Majority’s Opinion is Inconsistent with
Other Part 20 Regulations and the
PUUREINEIIDEEE, REOMUOEY 6..ccccccvccosvsetecvsscscscosesnceess 14
Il. The NRC Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health
EE 17
Ne ee cauauseeseens 19
Appendix:
Opinion of the United States Court of Appeals
for the Tenth Circuit, filed March 8, 2010...App. 1
CLI-06-29, 64 N.R.C. 417 (2006) ...........000.. 02. App. 68
CLI-06-14, 63 N.R.C. 510 (2006) ............... .....App. 91
CLI-04-33, 60 NRC 681 (2004) .................... App. 109
OEI-01-04, 58 N.R.C. 31 (2004) .................... App. 156
Ceo te, Ge PVE... 1 (2000) .................. ... App. 235
CLI-06-1, 63 N.R.C. 1 (2006) ....................... App. 248
Order of the United States Court of Appeals
for the Tenth Circuit Denying Rehearing
and Rehearing En Banc, filed May 18,
Atomic Energy Act, 42 U.S.C. § 2022(a) ..... App. 263
Atomic Energy Act, 42 U.S.C. § 2099........... App. 264
Rt OD RO LURILLD oesscssssnssvecresensonces oes App. 265
10 C.F.R. Part 40, Appendix A, Criterion 9...App. 267
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Robertson v. Methow Valley Citizens Council,
I I I cilia aia eaecsvevennee 17
Thomas Jefferson Univ. v. Shalala, 512 U.S.
Ra RR ae aiaeetaa tie ite ie Oe ee oe 9,14
STATUTES:
ACOMIC EMETAY ACE .......ccccccesnescescccscvcsssesece 1, 16, 18, 10
GEES TES. B BO vccicerssenasesesconsss 1,11, 12, 16, 17, 19
National Environmental Policy Act ..................... 1,17
Uranium Mill tailings Radiation Control Act............ l
i NN socenaetssocasazecsscausceucececccisseasnioccan: 1
Rte Fee SL} | re APNE DANA mr or ]
REGULATIONS:
10 C.F.R. § 20.1301(a)(1) 0.0... I, 3, 8, 11, 12, 15, 16
BE Bs We i ncn scsi ck.csnciundscencsiesvsscaseccicceceoneds 5
Internal Revenue Code § 501(¢)(3) wo...ccceecc eee ccccceeeees 1
ADMINISTRATIVE DECISIONS
In re Hydro Resources, Inc., CLJ-06-29, 64
FE eT EEE getseritsontuise reine aiacicoen l
In re Hydro Resources, Inc., CL1-06-14, 63
PE DE CUI cscccexanexesecpnsepesszcinsercgiens 1, 3, 8, 9
In re Hydro Resources, Inc., CL1-06-1, 63
te I ecrcraniciecescrevausekcsavnudeouceaseaisaedeutccs ]
In re Hydro Resources, Inc., CL1-04-33, 60
Be ei We I ctecios cece ctass sesuseensiazcnansos 1, 10
Vil
in re Hydro Resources, Inc., CL1-01-04, 53
Ee NED <5 ons seysusndckcascnscesnceeccuessvedeincaranes l
In re Hydro Resources, Inc., CLI-00-12, 52
A. FID ancucncvsvavsnevcunctaizddsectvenvess 1, 7, 10, 17
In re Hydro Resources, Inc., LBP-05-17, 62
N.R.C. 77 (2005), review denied, CLI-06-1,
ee SO on sons ivcsucaerecavapeoccanans 6,9
In re Hydro Resources, Inc., LBP-04-3, 59
N.R.C. 84 (2004), rev'd in part, CLI-04-33,
OF ec Be TD Sesntstscexccsdesassncccpsncesseemnaseserin 7
In re Hydro Resources, Inc., LBP-99-30 50
N.R.C. 77 (1999), affirmed, CL1-00-12, 52
er, senuuauosunebueveeuacsincs 4,9
In re Hydro Res., Inc., LBP-98-9, 47 N.R.C.
261 (1998), rev'd in part, 48 N.R.C. 119
ae RRS TAR el pec ran py OER Bae anO rai eSNG 2
Shieldalloy Metallurgical Corp. (Newfield,
NJ); Director’s Decision Under 10 C.F.R.
2.206, 45 N.R.C. 338, 342 (1997) .....00. ce. 17, 18
FEDERAL REGISTER NOTICES
56 Fed. Reg. 23,360 (May 21, 1991) ..............0 ee 15
51 Fed. Reg.1032 (Jan. 9, 1986) oo. eee cence 15
26 Fed. Rew. SGG5 (LOGE) ......ccccccccsccccccocssveccescesescveses 16
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of cer-
tiorari to review the judgment of the United States
Court of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the panel of the court of appeals 1s
reported at 598 F.3d 677, and is reprinted in the Ap-
pendix to the Petition (“Pet. App.”) 1-67. The order
denying rehearing or en banc review of the panel de
cision is reprinted at Pet. App. 261-62. The NRC or-
ders reviewed by the court of appeals are reported at
64 N.R.C. 417, 63 N.R.C 510, 63 N.R.C. 1, 53 N.R.C.
31, and 52 N.R.C. 1, and are reprinted at Pet. App.
68-260
JURISDICTION
The judgment of the court of appeals was entered
on March 8, 2010. A request for rehearing or en banc
review was denied on May 18, 2010. On July 23,
2010, Associate Justice Sotomayor extended the time
in which to file this Petition up to and including Sep-
tember 15, 2010. The jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant provisions of the Atomic Energy Act,
the National Environmental Policy Act, the Uranium
Mill Tailings Radiation Control Act, and NRC’s im-
plementing regulations are reprinted at Pet. App.
263-270.
STATEMENT OF THE CASE
A. Procedural History
This case began in 1988, when HRI applied to the
NRC for a license to conduct in situ leach (“ISL”)
mining of uranium on four sites in the towns of
Church Rock (Sections 8 and 17) and Crownpoint
(Crownpoint and Unit 1) in northwestern New Mex-
ico. Church Rock and Crownpoint both lie within the
boundaries of the Navajo Nation and are located in
the Eastern Navajo Agency. Pet. App. 3. The NRC
issued a notice of opportunity for hearing in 1994,
when it published the Draft Environmental Impact
Statement for the proposed mine. J/n ve Hydro Res.,
Inc., LBP-98-9, 47 N.R.C. 261, 264 (1998), rev’d in
part on other grounds, 48 N.R.C. 119 (1998). Peti
tioners requested a hearing in 1995, but the proceed-
ing was held in abeyance pending the issuance of the
Final Environmental Impact Statement (“FEIS”) in
1997. Id., 48 N.R.C. at 265-66.
In 1998, before hearings had begun, the NRC is-
sued a license to HRI. Pet. App. 5. The NRC then
conducted informal adjudicatory hearings on HRI’s
applications in two phases. In Phase I, the NRC ad-
dressed issues pertaining only to HRI’s proposed
mine on Section 8 at Church Rock. /d. at 7. In
Phase II, the NRC adjudicated the lawfulness of the
other three mine sites: Church Rock Section 17, Unit
1 and Crownpoint. /d. This petition and the case in
the court of appeals concern only Church Rock Sec:
tions 8 and 17.
B. Radioactive Air Emissions at Section 17
HRI’s Section 17 licensed area at Church Rock is
located on land held in trust by the U.S. Government
for the Navajo Nation and leased by the Bureau of
Indian Affairs to local residents who live and graze
their livestock there. ‘Three families live on Section
17 inside the licensed area, and approximately 85(
people live within five miles of the Section 8 and Sec:
tion 17 mining sites. Pet. App. 7-8.
HRI’s licensed area on Section 17 includes the
site of the abandoned Old Church Rock Mine, an un-
derground uranium mine that operated in the early
1960s and from 1977 to 1983 before it was purchased
by HRI in the early 1990s. The surface remains con-
taminated by dust and rocks from the prior uranium
mining operations. Those wastes continue to emit
radiation in excess of the NRC’s regulatory limits.
Ia.
In the 1997 FEIS, the NRC acknowledged that
some parts of the Section 17 site already are radioac-
tively contaminated, but asserted that “these areas
may be cleaned up as part of the well field decon-
tamination.” Pet. App. 30 n.15. The NRC concluded
that licensing the proposed uranium mine “may be
result in a positive health effect at the Church Rock
site.” Jd.
Nine years later, in the adjudicatory proceeding
on the issue of whether HRI’s license application for
Section 17 satisfied 10 C.F.R. § 20.1301(a)(1)’s public
radiation dose limits, the NRC changed course, hold:
ing that it has no authority to require HRI to clean
up the mine site if it is licensed by the NRC. Pet.
App. 98. As a result, HRI would now receive a li-
cense to operate Section 17 without ever having to
clean up existing radioactive contamination that is
nine to fifteen times the regulatory limit. /d. at 60
(Lucero, J. dissenting). Nevertheless, the NRC did
not correct the now-disproven representation in the
1997 FEIS that the issuance of a license to HRI
would likely benefit the public by leading to NRC-
ordered cleanup of the existing contamination.
C. Groundwater Quality at Church Rock
Section 8
1. Groundwater quality and ISL mining
In its undisturbed state, uranium 1s immobile in
an aquifer. ‘The mineralized zone of the aquifer con
tains high concentrations of chemicals such as ura
nium and radium, while surrounding groundwater
may have low concentrations of these chemicals
J.A. 331, Morris v. U.S. Nuclear Regulatory Comm'n,
598 I. 3d 677 (Oth Cir. 2010) (No. 07-9505) “C.A
J.A.”). Thus, an aquifer with a mineralized ore zone
may also have drinking water nearby. See /n re Hy
dro Resources, Inc., LUBP-99°30, 50 N.R.C. 77, 105
(1999), affirmed, CLI-00°12, 52 N.R.C. 1 (2000)
sy its nature, the ISL process of mining uranium
in an aquifer “tend|s] to contaminate groundwater.’
Pet. App. 33. ISL mining involves establishing a se
ries of injection and production wells that are laid
out in a series of geometric patterns known as “well
fields.” Pet. App. 4. Mining is conducted by injecting
a solution of water, dissolved oxyven, and sodium bi
carbonate (known as “lixiviant”) through injection
wells and into the discrete areas of uranium miner
alization, called “ore zones.” The lxiviant dissolves
the uranium in the ore zone and causes it to become
mobile in the aquifer. Production wells then pump
the uraniura-laden solution (known as “pregnant Iix
iviant’) to the surface for processing. At a processing
plant, the uranium is chemically stripped from the
groundwater, which is then returned to the aquifer
to extract more uranium ld. at 3°4 During the
mining process, monitoring wells around the perime
ter of the well field are used to detect excursion of
hixiviant. /d. at 4
In a given well field, pre-mining groundwater
quality within the ore zone is generally poor due to
the mineralization of the aquifer. C.A. J.A. 331. Pre-
mining quality of groundwater that hes outside the
ore zone but still within the well field, however, may
be good. Jd. Such is the case at Section 8 where
uranium concentrations vary from as high as 10.9
milligrams per liter (“mg/]”) in the ore zone to as low
as 0.002 mg/l in other parts of the Section 8 mine
site. C.A. J.A. 253. The uranium concer ration of
0.002 mg/l is more than an order of magnitude below
the Environmental Protection Agency’s (“EPA's”)
drinking water standard of 0.03 mg/I.
2. NRC requirements for restoration and
financial surety
HRI’s license contains two related requirements
with respect to restoration of groundwater at the
termination of HRI’s mining operation. First, after
licensing but before mining may begin, HRI must es-
tablish “groundwater restoration goals” within the
well field for an array of chemicals and radionu-
clides. Pet. App. 5, 40-42. Second, at the time of li-
censing HRI must establish a financial surety based
on the estimated cost of restoring the groundwater at
the conclusion of HRI’s mining operation. /d. at 5.
a. Restoration goals
HRI’s license requires it to establish a “primary
restoration goal” of returning all contaminants to
“average pre-lixiviant injection conditions,” also
known as “baseline” conditions. /d. at 40-42. These
restoration goals are consistent with the Uranium
Mill Tailings Restoration and Control Act, which re-
quires the EPA to establish standards for protection
of public health from hazards posed by inactive ura-
6
nium milling sites. Pet. App. 263. Because ground-
water quality may vary so widely within a mine site,
primary restoration goals must be separately estab-
lished for the groundwater within and outside the
ore zone and HRI may not average those values.
LBP-99-30, 50 N.R.C. at 99-100; Jn re’ Hydro Re-
sources, Inc., LBP-05-17, 62 N.R.C. 77, 96-97 (2005),
review denied, CLJ-06-1, 63 N.R.C. 1 (2006).
The license allows HRI to postpone setting pri-
mary restoration goals until just prior to the com-
mencement of mining activities, after HRI has in-
stalled its injection, production and monitoring wells.
C.A. J.A. 320.1! Thus, HRI has yet to establish the
pre-mining baseline conditions for Section 8. Pet.
App. 243.
b. Financial surety
NRC regulations require HRI to set aside a fi-
nancial surety that is sufficient to cover the esti-
mated cost of decommissioning its mine sites, includ:
ing restoring groundwater. Pet. App. 44-45, 267-70.
Groundwater restoration accounts for the majority of
decommissioning costs and therefore the majority of
| If baseline concentrations of contaminants are lower than
the maximum concentration limits (“MCLs”) specified in the
EPA’s drinking water regulations, the license establishes a
“secondary goal” of returning groundwater to those EPA MCLs.
Pet. App. 41-42. When HRI received its license in 1998, how-
ever, EPA did not have an MCL for uranium, and therefore the
NRC imposed a secondary restoration goal for uranium of 0.44
mg/l. LBP-05-17, 62 N.R.C. at 89. After the EPA determined
that chronic ingestion of even low levels of uranium can cause
kidney damage and promulgated a drinking water MCL for
uranium of 0.03 mg/l, the NRC agreed to reduce the limit in
HRI’s license in order to be consistent with EPA. Jd. at 89-92.
the surety estimate. Jn re Hydro Resources, Inc.,
LBP-04-3, 59 N.R.C. 84, 90 (2004).
The amount of money that must be set aside for a
groundwater restoration surety is based on the esti-
mated cost of flushing enough water through a
mined aquifer to return the groundwater quality to
the primary or secondary restoration goals that will
be established by HRI prior to mining, .e., baseline
conditions or EPA drinking water standards. Pet.
App. 112-113: C.A. J.A. 256.
While HRI must establish a surety at the time of
licensing, its license does not require it to establish
restoration goals until after hcensing. Therefore, by
necessity, HRI based its groundwater restoration
cost estimate on only a limited amount of data about
groundwater conditions on Section 8. Those data,
presented in the FEIS, show that water quality at
Section 8 varied from highly contaminated in the ore
zone to drinking water quality outside the ore zone.
C.A. J.A. 253. Even though HRI’s license prohibits it
from averaging ore zone and non-ore zone groundwa-
ter quality values in establishing primary restoration
goals, the NRC allowed HRI to average those widely
divergent water quality values for purposes of estab-
lishing a surety for Section 8. Pet. App. 243. The
NRC concluded that it would be necessary to flush
the Section 8 mine with nine “pore volumes” of water
in order to restore the quality of the water to these
average values. Jd. at 47.
D. Decisions Below
1. Radioactive air emissions at Section 17
NRC regulation 10 C.F.R. § 20.1301(a)(1) limits
the public. radiation dose (7.e., the total effective dose
equivalent (“TEDE”)) to 0.1 rem per year. Pet. App.
‘oe )
8. In the administrative adjudication of HRI’s li-
cense, Petitioners contended that HRI could not sat-
isfy § 20.1301(a)(1) at Section 17 because radiation
doses from existing contamination on the site far ex-
ceeded the TEDE of 0.1 rem per year. /d. at 15, 95.
But the Commission rejected Petitioners’ argument
on the ground that the radioactive debris on Section
17 is not part of HRI’s “hcensed operation.” Jd. at 98
The Commission also concluded that radioactive
emissions from the debris constitute “background ra-
diation” which is not subject to the dose limits in 10
C.F.R. § 20.1301(a)(1). Jd. at 107.
On review, a majority of the court of appeals con-
cluded that the NRC’s interpretation of §
20.1301(a)(1) was entitled to deference because it
was not “plainly erroneous” or inconsistent with the
NRC’s statements of intent in promulgating the reg-
ulations at the time it promulgated the regulations.
Id. at 16°22. Because the majority relied on the
Commission’s interpretation of the term “licensed
operation,” it never reached the question of whether
the NRC had applied a proper interpretation of the
term “background radiation.” /d. at 22. See also Pet.
App. 91-108.
Judge Lucero dissented from the majority’s inter-
pretation of 10 C.F.R. § 20.1301(a)Q), concluding
that it is “inconsistent with the regulation’ and thus
warrants no deference.” Jd. at 62 (quoting Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
Observing that the NRC’s interpretation rendered
specific exclusions from the rule “unnecessary,”
Judge Lucero concluded that the NRC’s interpreta-
tion “violates a fundamental rule of construction.”
Id. at 64. Further, he concluded that “the majority’s
decision . . . will unnecessarily and unjustifiably
9
compromise the health and safety of the people who
currently live within and immediately downwind of
Section 17...” Jd. at 61.
2. Groundwater restoration goals and su-
rety for Section 8
In the adjudicatory proceeding before the NRC,
Petitioners charged that in its Environmental Report
for the proposed mine, HRI had already established
baseline groundwater conditions that were based on
averages of uranium concentrations in the ore zone
and the surrounding area of much lower uranium
concentration. C.A. J.A. 384-85. Petitioners as-
serted that HRI “may use this same tactic in setting
restoration goals for the project sites.” Jd.
The Presiding Officer rejected Petitioners’ claim,
however, concluding that HRI had not yet estab-
lished baseline conditions, and would not do so until
after the license was issued. LBP-99-30, 50 N.R.C.
at 99-100. He also noted that “baseline should be de-
termined in both the production area and the mine
area separately.” /d. at 100. ‘This prohibition
against averaging ore zone and non-ore-zone water
quality was also affirmed in a subsequent decision,
LBP-05-17, 62 N.R.C. at 96-97.
Despite the NRC’s clear instruction that HRI may
not average ore zone and non-ore-zone water quality
values to set restoration goals, the NRC did just that
in concluding that HRI’s surety was adequate and
that it had a reasonable assurance that HRI could
clean up the Section 8 aquifer at the conclusion of its
mining operation. This assumption is made clear in
CLI-00-12, in which the Commission stated its ex-
pectation that HRI would not have to restore ura-
nium concentrations in Section 8 groundwater to “a
10
cleaner, more stringent level” than 1.8 mg/l, the “av-
erage level already existing in Section 8.” Pet. App.
243 (citing FEIS at 3-36, C.A. J.A. 253) (emphasis
added). The FEIS itself reports 1.8 mg/l as the
“mean’ between uranium concentrations of 10.9 mg/l
in the ore zone and 0.002 mg/l] in the non-ore-zone.
C.A. J.A. 253. The Commission did not change its
conclusion when it revisited the surety issue in CLI-
04-33, Pet. App. 131.
The court of appeals affirmed the NRC’s decision,
deferring to the agency’s determination that HRI’s
proposed groundwater restoration efforts and atten-
dant surety estimates are adequate. /d. at 51-52.
Additionally, the court affirmed the NRC’s conclu-
sion that it would be reasonable to use Section 8 to
demonstrate that HRI could restore groundwater be-
fore permitting it to mine at its other sites. /d. at 51.
However, the court did not address the validity of
NRC’s assumption that it could use average values
for ore zone and non-ore zone water quality to assess
the adequacy of HRI’s surety and the feasibility of
groundwater restoration.
11
REASONS FOR GRANTING THE WRIT
The Court should take review of this case be-
cause, as Judge Lucero noted in his dissent, the ma-
jority’s decision “violates a fundamental rule of con-
struction” by accepting an interpretation of §
20.1301(a)(1) that renders other terms of the rule
superfluous. Pet. App. 64 (Lucero, J. dissenting).
The NRC’s interpretation of the rule is also inconsis-
tent with other statements of intent by the NRC, not
only in the § 20.1301(a)(1) rulemaking context but
also throughout the course of the administrative pro-
ceeding. While the NRC used the 1997 FEIS to as-
sure members of the public that licensing of the mine
would benefit them by resulting in an NRC-ordered
cleanup of highly contaminated areas of the Section
17 mine site, the majority has now affirmed the
NRC’s subsequent disclaimer of any authority to or-
der such acleanup. Thus, the majority has allowed
the government to renege on its promise to the mem-
bers of the public living near the HRI mine, who
must now live indefinitely with radioactive contami-
nation that will “unnecessarily and unjustifiably
compromise the health and safety of the people who
currently lve within and immediately down wind
from Section 17.” Jd. at 60 (Lucero, J. dissenting).
Moreover, by approving a financial surety for
groundwater restoration that was based on the im-
permissible assumption that high quality groundwa-
ter values could be averaged with values for the pol-
luted ore zone, the court countenanced the NRC’s
violation of the Atomic Energy <Act’s prohibition
against licensing operations that are inimical to pub-
lic health and safety. Pet. App. 264. Because the
court’s decision is inconsistent with the law and puts
public health at risk, it should be reviewed.
ARGUMENT
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals, Vio-
lates Fundamental Principles of Statutory In-
terpretation as Outlined by this Court.
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC’s
Interpretation of the Regulation.
NRC regulation 10 C.F.R. § 20.1301(a)(1) requires
that:
(a) Each licensee shall conduct operations so
that
(1) The total effective dose equivalent to
individual members of the public from the
licensed operation does not exceed 0.1 rem
(1 mSv) in a year, exclusive of the dose con-
tributions from background radiation, from
any administration the individual has re-
ceived, from exposure to individuals admin-
istered radioactive material and released
under § 35.75, from voluntary participation
in medical research programs, and from
the licensee’s disposal of radioactive mate-
rial into sanitary sewerage in accordance
with § 20.2003.
Pet. App. 265. The majority opinion defers to the
NRC’s interpretation that the term “licensed opera-
tion” means only HRI’s activities in removing ura-
nium from the ground and chemically processing it,
and therefore § 20.1301(a)(1) does not apply to the
significant radioactive emissions from pre-existing,
human-caused mine waste on HRI’s site. Pet. App.
16-18 . The majority found that an alternative read-
ing was not compelled by the regulation’s plain lan-
guage. Jd. at 17.
As Judge Lucero noted in his dissent, however,
the NRC’s interpretation of the term “licensed opera-
tion” as used in 10 C.F.R. § 20.1301(a)(1) renders
other terms of the regulation superfluous. For in-
stance, language in § 20.1301(a)(1) excluding sani-
tary sewers and medical operations from the regula-
tion’s scope would not be necessary because those ac-
tivities are not part of the specific activity to be con-
ducted under the license. While the majority asserts
that the language in the regulation excluding sani-
tary sewers and medical administration “clarifies”
that the NRC has other regulations that govern
those matters (Pet. App. 17), in fact “[t]here is no
reason to expressly exclude radiation from medical
research programs if ‘licensed operation,’ by defini-
tion, refers only to activity of the licensee.” Jd. at 64.
Further, the majority completely fails to explain
its circular statement that the exclusion of back-
ground radiation “makes sense in its own right” un-
der the NRC’s interpretation of the regulations. Pet.
App. 17. In fact, the exclusion of background radia-
tion does not make sense under any reasoning, be-
cause this interpretation renders the exclusion “su-
perfluous,” in violation of the “well-established prin-
ciple of statutory and regulatory interpretation that
a provision should be read such that no term is ren-
14
dered nugatory.” /d. at 63. See also Thomas Jeffer-
son Univ., 512 U.S. at 513.2
B. The Majority’s Opinion is Inconsistent
with Other Part 20 Regulations and the
Regulations’ History.
The majority also misreads the history of the
1991 rulemaking in which the NRC strengthened ra-
diation doses limits for members of the public. Pet.
App. 18-21. According to the majority, the rulemak-
ing history supports the NRC’s interpretation of 10
C.F.R. § 20.1301(a)(1) because it “specifically linked
the relevant measured dose to the ‘licensed opera-
tion’ by changing regulatory language that had re-
ferred to “both licensed and unlicensed sources” to
the “licensed operation.” Jd. at 18.
But the court’s analysis begs the question of what
the NRC meant by the term “licensed operation,”
which is not defined in the regulations. The majority
apparently assumes that “licensed operation” means
essentially the same thing as “licensed sources,” and
therefore the exclusion of the term “unlicensed
sources” from the 1991 rule shows that the NRC did
not intend the rule to cover unlicensed sources in the
licensee’s possession. That reading of the regula-
2 Because the majority opinion defers to the NRC’s interpreta-
tion of “licensed operation,” it does not address the issue of
whether the NRC’s interpretation of “background radiation” is
entitled to deference. Judge Lucero’s dissent addresses that is-
sue, however, and concludes that the NRC’s interpretation of
“background radiation” violates canons of regulatory construc-
tion. Pet. App. 64-65. Because the NRC’s interpretation of its
regulatory language renders significant portions uf those regu-
Jations superfluous, the majority should not have afforded that
interpretation any deference.
tions is not supported by the context of the rulemak-
ing, however, because the statement of regulatory
purpose that accompanies 10 C.F.R. § 20.1301(a)(1)
expresses the Commission’s intent to regulate radia-
tion doses from both “licensed and unlicensed radio
active material.”
Similarly, a colloquy in the 1991 rulemaking ex-
presses the Commission’s intent to regulate “doses
from radiation and radioactive material under the
licensee’s control.” 56 Fed. Reg. 23,360, 23,374 (May
21, 1991). See also 51 Fed. Reg.1032, 1133 Wan. 9,
1986) (NRC’s statement in the proposed rule regard:
ing the impracticality of regulating radiation doses
from several sources, “not all of which are controlled
by the licensee.”)
For the same reason, the fact that the NRC re
duced the maximum permissible radiation dose from
0.5 rem/year in the proposed rule to 0.1 rem/year in
the final rule does not, as the majority suggests,
show that the NRC intended to exclude from the
scope of the rule any radiation source in the licen:
see’s control that is not also used in the licensee’s ac-
3 Section 20.1001(b) provides that:
It is the purpose of the regulations in this part to
control the receipt, possession, use, transfer, and
disposal of licensed material by any licensee in such
a manner that the total dose to an individual (in-
cluding doses resulting from J/icensed and unli
censed radioactive materia/ and from radiation
sources other than background radiation) does not
exceed the standards for protection against radia:
tion prescribed in this part.
(emphasis added).
16
tivities. Pet. App. 21. It simply demonstrates that in
contrast to the proposed rule, which covered radia-
tion sources both within and beyond the licensee's
control, the final rule covers only radiation sources
within the licensee’s control.
The majority also states that the NRC’s reading
of § 20.1301(a)(1) is consistent with the Commis:
sion’s stated interest in establishing standards that
are “practical from the standpoint of the licensees”
and that meet the Atomic Energy Act’s policy of de
veloping nuclear energy. Pet. App. 19 (quoting 25
Fed. Reg. 8595 (1960)). But no practical considera-
tion or general statement of policy could be fairly
read to permit the NRC to subvert the specific com:
mand of 42 U.S.C. § 2099 that it may not issue a
source materials license that would be “inimical to .
. the health and safety of the public.” As Judge Lu-
cero states in his dissent, that is exactly what the
NRC has done here with the approval of the major-
ity. Pet. App. 60.
Finally, the majority does not address the fact
that the NRC’s interpretation of 10 C.F.R. §
20.1301(a)(1) renders false the 1997 FEIS’ statement
that high levels of existing contamination on the
Church Rock Section 17 site “may be cleaned up as
part of the well field decontamination.” Pet. App. 30
n.15. The court leaves unexplained the question of
how, if the NRC has no authority over HRI’s existing
mine waste for purposes of enforcing 10 C.F.R. §
20.1301(a)(1), it could claim in the FEIS that it has
the authority to order HRI to clean up the existing
contamination at the conclusion of HRI’s mining op
eration.
Nor has the NRC attempted to correct what now
constitutes a misstatement in the FEIS that licens
ing of the HRI mine is likely to benefit the commu
nity by resulting in an NRC-ordered cleanup of exist
ing contamination. See discussion above at 3-4. The
NRC simply allowed the 1997 FEIS to stand uncer:
rected, despite its obligation under the National En-
vironmental Policy Act to provide “carefully con:
siderled] and “detailed” information to the public re-
vyarding the environmental consequences of its deci:
sions. Hobertson v. Mecthow Valley Citizens Council,
490 U.S. 332, 349-350 (1989).
Il. The NRC-Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health Protec-
tion Mandate.
Consistent with the Atomic Energy Act's re
quirement that the issuance of an NRC source mate’
rials license may not be “inimical to public health
and safety,” 42 U.S.C. § 2099 (Pet. App. 264), NRC
decommissioning funding requirements are designed
to ensure that at the end of operations, a licensee
will possess “sufficient funds to eventually decon
taminate and decommission the site to a level at
which public health and safety is assured.” SAse/da/-
loy Metallurgical Corp. (Newfield, NJ); Director’s De-
cision Under 10 C.F.R. 2.206, 45 N.R.C. 338, 342
(1997). The NRC runs afoul of this mandate by arbi-
trarily basing HRI’s initial groundwater restoration
effort and surety estimate on the assumption that
HRI needs to restore groundwater at Section 8 only
to the average of ore zone and non-ore zone ground
water quality, not the drinking water quality cur
rently found in some areas of Section 8 Pet. App
444. Contrary to i wn conclusion that baseline
restoration goals cannot be established by averaging
ore zone and non-ore zone water quality, the NRC
has founded HRI’s restoration surety on a prelimi
nary restoration roa) estimated by iVverannnye Cc
tremely low contamination values for potable non
ore-zone water with extreme! high value for pol
luted ore zone wate!
Thus even though ba elne conditio! rave Vey |
be definitively established, the NRC has impermiss!
bly assumed that average groundwater condition
are poor and approved ti urety that 1 correspond
ingly low \ a result. HRE financial urety for
froundwater restoration at Section 81s unlikely to he
ulfiqent to restore good quality groundwater out
ide the ore zone to pre-mining conditions in the
event that H]RI is financially unable to do so. By ef
fectively allowing HRI to degrade local residents’ p
table water source, the NRC has violated the Atom a
nergy Act's public health protection mandate in 42
U.S.C. § 2099 and the NRC's own interpretation of
the purpose ol ircty estimate i! et forth in
Shieldalloy
In affirming the NRC, the court reasoned that thi
urety for Section & appli only to the outset of
H itl mining project and that the urely Wa ubyecet
to future revisions for the other three mining site
Pet. App. 52°58 Setting aside the very high stan
dard for obtaining a hearing on future revisions to
the surety (Pet. App. 55), it 1s no consolation to the
neighbors of the Section & mine that the aquifer on
which they depend for dnnking water will have been
acriliced§ a an imMmitial experiment 1) etting
rroundwater restoration Irely amount \ Ure
court has acknowledged, groundwater restoration |
baseline conditions at ISL projects is exceedingly dif-
ficult, if not impossible and at best, only one ISL op-
eration may have successfully restored groundwater.
Pet. App.35-36.4 Like the NRC, the court of appeals
failed to account for the real possibility that HRI
may not be able to complete the demonstration ex-
periment and leave Section 8 contaminated because
of an inadequate groundwater restoration surety.
This kind of experiment is not contemplated by the
Atomic Energy Act’s requirement for protection of
public health and therefore warrants review.
4 In note 19 of its opinion, the panel states that there is evi-
dence in the record that groundwater quality was successfully
restored at the Bison Basin project, without providing a record
citation. Pet. App. 36. However, that assertion was not sup-
ported in the administrative case with any evidence, and the
court does not cite any. To Petitioners’ knowledge, no ISL min-
ing operation has ever restored groundwater to pre-mining con-
ditions.
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
Diane Curran Eric Jantz
Counsel of Record New Mexico Environ-
Harmon, Curran, Spielberg mental Law Center
& Eisenberg, L.L.P. Suite 5
Suite 600 1405 Luisa Street
1736 M Street N.W. Santa Fe, New Mexico
Washington, D.C. 20035 87505
(202) 328-3500 (505) 989-9022
dcurran@harmoncurran.com
Counsel for Petitioners Eastern Navajo Diné Against
Uranium Mining and Southwest Research and
Information Center
Levon Henry Zackeree Kelin
Jesse Traugott Kelin Law Firm, P.C.
DNA-People’s 1309 Rio Grande
Legal Services, Inc. Boulevard N.W.
P.O. Box 306 Albuquerque,
Window Rock, Arizona New Mexico 87104
86515 (505) 242-7200
(928) 871-4151
Counsel for Petitioners Marilyn Morris and Grace
Sam
September 2010
App. 1
MARILYN MORRIS, GRACE SAM, EASTERN
NAVAJO DINE AGAINST URANIUM MINING
“ENDAUM,” SOUTHWEST RESEARCH
AND INFORMATION CENTER “SRIC,”
Petitioners, v. UNITED STATES NUCLEAR
REGULATORY COMMISSION, UNITED
STATES OF AMERICA, Respondents, HYDRO
RESOURCES, INC., Intervenor-Respondent.
NAVAJO NATION, Amicus curiae.
No. 07-9505
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
598 F.3d 677; 2010 U.S. App. LEXIS 4802;
70 ERC (BNA) 1097
March 8, 2010, Filed
COUNSEL: Eric Jantz, New Mexico Environmental
Law Center, Santa Fe, New Mexico (Diane Curran,
Harmon, Curran, Spielberg & Eisenberg, L.L.P.,
Washington, D.C., Zackeree Kelin, DNA-People’s
Legal Services, Inc., Window Rock, Arizona, with him
on the briefs) for Petitioners.
Charles E. Mullins, Senior Attorney, Office of the
General Counsel, United States Nuclear Regulatory
Commission (Ronald J. Tenpas, Acting Assistant
Attorney General, John E. Arbab, Appellate Section,
Environmental and Natural Resources Division,
United States Department of Justice, Karen D. Cyr,
General Counsel, John F. Cordes, Jr., Solicitor, E. Leo
Slaggie, Deputy Solicitor, Steven C. Hamrick, Attor-
ney, Office of the General Counsel, United States
App. 2
Nuclear Regulatory Commission, with him on the
brief) Washington, D.C., for Respondents.
Anthony J. Thompson (Christopher S. Pugsley, with
him on the brief) Thompson & Simmons, PLLC,
Washington, D.C. for Intervenor-Respondent.
Louis Denetsosie, Attorney General and David A.
Taylor, Senior Attorney, Natural Resource Unit,
Navajo Nation Department of Justice, filed an amicus
curiae brief for the Navajo Nation.
JUDGES: Before LUCERO, EBEL and FRIZZELL,*
Circuit Judges. LUCERO, J., dissenting.
OPINION BY: EBEL
OPINION
EBEL, Circuit Judge.
The Nuclear Regulatory Commission (“NRC”)
issued Hydro Resources, Inc. (“HRI”) a license to
conduct in situ leach mining for uranium on four sites
in northwest New Mexico. In this case, Petitioners —
Eastern Dine Against Uranium Mining, a Navajo
community organization, Southwest Research and
Information Center, a non-profit environmental
education organization, and two local ranchers, Grace
Sam and Marilyn Morris — seek review of the NRC’s
licensing decision. Petitioners assert that the NRC, in
* Honorabie Gregory K. Frizzell, District Court Judge,
Northern District of Oklahoma, sitting by designation.
App. 3
issuing HRI’s license, violated two federal statutes —
the Atomic Energy Act (“AEA”), which sets forth
specific requirements that an applicant must meet
before obtaining a license, and the National Envi-
ronmental Policy Act (“NEPA”), which requires, in
more general terms, that an agency give a “hard look”
to the environmental impact of any project or action it
authorizes. Having jurisdiction to review the agency’s
licensing decision under 28 U.S.C. § 2342(4) and 42
U.S.C. § 2239(b), as well as the Administrative Pro-
cedures Act (“APA”), 5 U.S.C. § 702, we DENY the
petition for review and uphold the NRC’s licensing
decision in all respects.
I. BACKGROUND
In 1988, HRI applied with the NRC for a license
to conduct in situ leach (“ISL”) uranium mining at
four locations in McKinley County, New Mexico, near
the Navajo Indian Reservation. Two of these sites,
referred to as Sections 8 and 17, are adjacent to each
other and are both located near Church Rock, New
Mexico; the other two sites, Unit One and Crown-
point, are located near Crownpoint, New Mexico. The
entire project is known as the Crownpoint Uranium
Project.
ISL mining involves injecting lixiviant — a mix-
ture of ground water charged with oxygen and bicar-
bonate ~ into the “ore zone,” the underground
geological formation containing the uranium deposits.
As the lixiviant is pumped through the ore zone, the
App. 4
uranium dissolves into the lixiviant. This now “preg-
nant lixiviant” is then pumped back to the surface,
where the uranium is separated from the lixiviant,
processed into yellowcake, and shipped to other
facilities to be enriched for use as reactor fuel. The
“barren lixiviant” is re-charged with oxygen and
bicarbonate and re-injected into the ore zone to
repeat the cycle.
In order to conduct its ISL operation, HRI plans
to create a number of “well fields” at each mining site.
Each “well field” includes one production well located
in the midst of several injection wells, all spaced in a
five- or seven-well geometric pattern.’ As the lixiviant
is pumped by the injection wells through the ore zone,
a greater amount of water is extracted through the
middle production well, lowering the pressure in the
center of the well field and thereby drawing the
uranium-enriched lixiviant to the production well to
be pumped to the surface. The production and injec-
tion wells, which tap into the Westwater Canyon
aquifer, will be surrounded by monitoring wells, both
horizontally in that aquifer and vertically in other
aquifers, to insure that there are no excursions of
lixiviant outside each well field being mined.
' The Environmental Protection Agency (“EPA”) and the
State of New Mexico regulate the design, construction, testing,
and operation of these wells. HRI’s compliance with those
regulations is not at issue in this review petition.
App. 5
In 1997, the NRC, in cooperation with the Bu-
reau of Land Management (“BLM”) and the Bureau of
Indian Affairs (“BIA”), issued a final environmental
impact statement (“FEIS”), recommending that the
NRC grant HRI’s license application.” The NRC did
so, issuing HRI a license in January 1998.
This license imposes a number of requirements
on HRI. Chief among those is the requirement that,
when HRI is finished mining each site, it must re-
claim the site and restore the quality of the ground-
water. In order to insure this restoration occurs, the
license requires HRI to provide a surety to cover the
estimated cost of those reclamation efforts.
The NRC, during its proceedings addressing
HRI’s license application, permitted Petitioners to
intervene because they, or their members, “use[] a
substantial quantity of water personally or for live-
stock from a source that is reasonably contiguous to
either the injection or processing sites” for the pro-
posed mining locations. In re Hydro Res., Inc., 47
N.R.C. 261, 263, 275-78, 286 (1998), rev'd in part on
other grounds, 48 N.R.C. 119 (1998). After issuing
* Because the four mining sites are very near the Navajo
Reservation, the NRC, along with the BIA, invited the Navajo
Nation to participate in the drafting of the FEIS as a cooperat-
ing agency. See 10 C.F.R. §§ 51.14(a), 51.28(a\5). The Navajo
Nation declined that offer, however, based both upon the
Nation’s “executive order formally recognizing the 1983 tribal
moratorium on uranium mining on Navajo lands,” and the
Nation’s announced opposition to HRI’s proposed Crownpoint
uranium project. (Jt. App. at 208-10.)
App. 6
HRI its license, the NRC conducted a _ bifurcated
informal adjudicatory hearing, pursuant to 10 C.F.R.
Part 2, Subpart L.” See In re Hydro Res., Inc., 47
N.R.C. at 263.
* These administrative proceedings, then, occurred in two
parts, see 10 C.F.R. Part 2, Subpart A:
1) The NRC prepared the draft environmental im-
pact statement (“DEIS”), then published it and sought
public comment. See 59 Fed. Reg. 56,557-02 (Nov. 14,
1994). In light of the DEIS’s recommendation that the
NRC grant HRI’s request for a license, Petitioners
and a number of others who opposed HRI’s license
application sought to intervene. The NRC concluded
Petitioners had standing to challenge the license ap-
plication and so permitted them to intervene. The
NRC, however, abated Petitioners’ challenge until af-
ter the NRC made a final decision concerning HRI’s
license application. Eventually, the NRC completed
the FEIS, which recommended issuing HRI the li-
cense. The NRC then issued HRI a license.
2) After the NRC issued HRI’s license, the NRC,
based on Petitioners’ earlier requests, conducted an
informal adjudicatory hearing, pursuant to 10 C.F.R.
Part 2, Subpart L. See In re Hydro Res., Inc., 47
N.R.C. at 263. Although 10 C.F.R. Part 2 includes
rules governing a number of different types of NRC
hearings, including formal adjudicatory hearings and
hearings regarding special licenses, see 10 C.F.R. Part
2, the parties agree that, in this case, an informal
adjudicatory hearing was appropriate. See 10 C.F.R.
§ 2.310 (addressing “Selection of Hearing Procedures”).
It is during this informal adjudicatory hearing that
Petitioners were able to challenge the NRC’s decision
to issue the license, as well as the adequacy of the
FEIS. The NRC ultimately rejected all of Petitioners’
challenges and upheld its decision to issue HRI the
(Continued on following page)
App. 7
In Phase {| of these administrative proceedings,
the NRC conducted a hearing specifically addressing
only the Section 8 site near Church Rock. The NRC
addressed this site first because that is where HRI
intends to begin its ISL operations. In a series of
decisions, the NRC upheld HRI’s license as it per-
tained to that one site. Phase II of these administra-
tive proceedings then addressed HRI’s other three
mining sites, ultimately upholding HRI’s license as it
pertained to those sites, as well.
In this petition for review, Petitioners now chal-
lenge several of the NRC determinations pertaining
only to the Church Rock Sections 8 and 17 sites. This
court granted both HRI’s motion to intervene in this
review proceeding and the Navajo Nation’s request to
file an amicus brief.
Il. ATRBORNE RADIATION AT SECTION 17
The licensed area in Section 17, located near
Church Rock, New Mexico, is
on land held in trust by the U.S. Government
for the Navajo Nation and leased by the Bu-
reau of Indian Affairs to local residents who
live and graze their livestock there. Three
license. It is that final agency action — the NRC’s issu-
ing HRI a license after rejecting Petitioners’ adminis-
trative challenges — that is at issue here. See 5 U.S.C.
§ 704 (providing for judicial review of final agency ac-
tion).
App. 8
families live on Section 17 inside the licensed
area, and approximately 850 people live
within five miles of the Section 8 and Section
17 mining sites.
(Pet. Br. at 14 (citing Jt. App. at 245, 835-38).) “HRI’s
licensed area on Section 17 includes the site of the
abandoned Old Church Rock Mine, an underground
[conventional] uranium mine that operated in the
early 1960s and from 1977 to 1983[,] before it was
purchased by HRI.” (/d. at 15 (citing Jt. App. at
1354).) As a result of that prior mining operation, the
site contains debris and waste that emit airborne
radiation."
Petitioners contend that the NRC, in considering
HRI’s licensing application, failed to take into ac-
count the airborne radiation already being emitted at
Section 17, contrary to both the Atomic Energy Act of
1954, as amended by the Uranium Mill Tailings
Radiation Control Act of 1978 (“AEA”), 42 U.S.C.
§§ 2011-2297h-13, and the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f.
“ During the administrative appeal of the NRC’s licensing
decision, the NRC’s Presiding Officer (“P.O.”) found that the
earlier conventional underground mine had been properly
capped and, therefore, the mine itself was not the source of any
current airborne radiation. Petitioners do not challenge that
finding.
App. 9
A. Atomic Energy Act
NRC regulations promulgated under the AEA
limit the amount of airborne radiation from an NRC-
licensed operation to 0.1 rem in a year. See 10 C.F.R.
§ 20.1301(a)(1). The parties agree that HRI’s ISL
mining will emit only negligible airborne radiation,
well under that limit. The problem at Section 17 is
that the debris from the prior conventional mining
operation already emits a greater amount of airborne
radiation than the NRC regulations allow, even
before considering the airborne radiation that the ISL
mining might produce. Petitioners argue that because
this site already exceeds the airborne emissions
allowed under § 20.1301(a)(1), the NRC cannot li-
cense another operation on that same site. The NRC,
however, interpreted its regulations instead to re-
quire the agency to consider under § 20.1301(a)(1)
only the amount of airborne radiation that the opera-
tion seeking the license ~- here, HRI’s ISL mining —
will emit irrespective of the airborne radioactive
emissions already occurring on the site. See In re
Hydro Res., Inc., 63 N.R.C. 510, 512, 515 (2006).
Affording the agency’s interpretation of its own
regulations proper deference, we uphold that deter-
mination.
l. Standard of review
As Petitioners acknowledge, “[wle must give
substantial deference to an agency’s interpretation of
its own regulations.” Thomas Jefferson Univ. v.
App. LO
Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129
L. Ed. 2d 405 (1994) Here, then, “[oJur task is not to
decide which among several competing interpreta-
tions best serves the regulatory purpose. Rather, the
agency's interpretation must be given controlling
weight unless it is plainly erroneous or inconsistent
with the regulation.” /d. (quotations omitted); see also
Fed. Express Corp. v. Holowechi, 552 U.S. 389, 397,
128 S. Ct. 1147, 170 L. Ed. 2d 10 (2008); Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644,
672, 127 S. Ct. 2518, 168 L. Ed. 2d 467 (2007); Ariz.
Pub. Serv. Co. v. U.S. Envtl. Prot. Agency, 562 F.3d
1116, 1123 n.5 (10th Cir. 2009). Therefore, “we must
defer to the Secretary’s interpretation unless an
alternative reading is compelled by the regulation’s
plain language or by other indications of the Secre-
tary’s intent at the time of the regulation’s promulga-
tion.” Thomas Jefferson Univ., 512 U.S. at 512
(quotation omitted). “This broad deference is all the
more warranted when, as here, the regulation con
cerns a complex and highly technical regulatory
program, in which the identification and classifica-
tion of relevant criteria necessarily require significant
expertise and entail the exercise of judgment ground-
ed in policy concerns.” /d. (quotations omitted); see
Enuvtl. Def. Fund v. United States Nuclear Regulatory
Comm’n, 902 F.2d 785, 789 (10th Cir. 1990) (noting,
in addressing challenges to NRC’s rulemaking, that
“ft]he NRC’s resolution of technical matters, like the
regulation of uranium and thorium mill tailings, is a
technical judgment ‘within its area of special exper-
tise, at the frontiers of science where a reviewing
App. 1]
court must generally be most deferential’”) (quoting
Baltimore Gas & Elec. Co. v. Natural Res. Def. Coun-
cil, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76
L. Ed. 2d 437 (1983) (alteration omitted)).
2. Analysis
The AEA requires HRI to obtain a license from
the NRC in order to conduct ISL mining.’ See 42
U.S.C. § 2092. The NRC may not grant a license
application, however, “if, in the opinion of the Com.
mission, the issuance of a license to such person for
such purpose would be inimical to the common
defense and security or the health and safety of
the public.” 42 U.S.C. § 2099; see also 10 C.F.R.
§ 40.32(d).
* The AFA specifically provides, in pertinent part, that,
“lujnless authorized by a general or specific license issued by the
Commission, ... mo person may transfer or receive in interstate
commerce, transfer, deliver, receive possession of or title to or
import or export from the United States any source material
{such as uranium] after removal from its place of deposit in
nature.” 42 U.S.C. § 2092; see also id. § 2014(z) (defining source
material to include uranium or ores containing uranium)
Although this licensing requirement does not apply to conven-
tional uranium mining, see Barnson v. United States, 816 F.2d
549, 554-55 (10th Cir. 1987), the NRC has interpreted the AEA
to apply to ISL mining because, during that procedure, the
uragiuin is “remov[(ed] from its place of deposit in nature” at the
time the uranium dissolves into the lixiviant underground and
the miner only takes possession of it after it is then pumped to
the surface (Jt. App. at 1248-49). No one challenges here the
NRC’s interpretation of this regulation to apply the AKA to ISL
uranium mining.
App. 12
The NRC has adopted regulations to implement
this statutory mandate. See 10 C.F.R. § 20.100 1(a).’
Most relevant here, these implementing regulations
“establish standards for protection against ionizing
radiation resulting from activities conducted under
licenses issued by the” NRC. /d.; see 10 C.F.R. Pt. 20
It is the purpose of the|se] regulations ... to
control the receipt, possession, use, transfer,
and disposal of licensed material by any |i
censee in such a manner that the total dose
to an individual (including dose sulting
from licensed and unlicensed radiuective ma
terial and from radiation sources other than
background radiation) does not exceed the
standards for protection against radiation
prescribed in the regulations in this part
However, nothing in this part shall be
" The NRC applied the regulations in effect at the time it
issued HRI a license, in January 199% The regulations found in
10 C.F_R. Part 20 were promulyated en masse in 1991, after HRI
filed its leense apphieation, but before the NRC issued the
license. See 10 C.FLR. Part 20, Subparts A, D; see also 56 Fed
Rey. 25,391, 23,398 (May 21, 1991). See generally In re TMI, 67
Kd 1308, 1110-12 (4d Cir. 1995) (addressing revisions)
10 C.FLR. Part 20 provides for “detailed federal standards
for protection ayvainst radiation.” Roberts v. Fla, Power & Laypht
Co., 146 F.3d 1305, 1307 n.4 (Lith Cir. 199%). These regulations
address doses of ionizing, radiation, that is, radiation stemming
from “alpha particles, beta particles, gamma rays, x-rays,
neutrons, high-speed electrons, high-speed protons, and other
particles capable of producing ions. Radiation, as used im this
part, does not include non-ionizing radiation, such as radio- or
microwaves, or visible, infrared, or ultraviolet Jyzht” 10 CPR
§ 20.1003
App. 13
construed as limiting actions that may be
necessary to protect health and safety.
Id. § 20.1001(b).
By the specific regulation at issue here, 10 C.F.R.
§ 20.1301, the NRC adopted radiation “Dose limits for
individual members of the public.” 10 C.F.R. Pt. 20,
Subpt. D. A “[mJember of the public means any
individual except when that individual is receiving an
occupational dose,” which is “the dose received by an
individual in the course of employment,” 10 C.F.R.
§ 20.1003. Most pertinent to this case, 10 C.F.R.
§ 20.1301(a) provides, in relevant part:
Each licensee shall conduct operations so:that —
(1) The total effective dose equivalent
[(“TEDE”)] to individual members of the pub-
lic from the licensed operation does not ex-
ceed 0.1 rem (1 mSv) in a year, exclusive of
the dose contributions from background ra-
diation, from any medical administration the
individual has received, from exposure to in-
dividuals administered radioactive material
and released under § 35.75, from voluntary
participation in medical research programs,
and from the licensee’s disposal of radioac-
tive material into sanitary sewerage in ac-
cordance with § 20.2003... .
10 C.F.R. § 20.1301(a).”
* Total effective dose equivalent, or TEDE, is “the sum of the
deep-dose equivalent (for external exposure) and the committed
(Continued on following page)
App. 14
effective dose equivalent (for internal exposures).” 10 C.F.R.
§ 20.1003 (2003) (subsequently revised). The “[djeep-dose equiv-
alent ..., which applies to external whole-body exposure, is the
dose equivalent at a tissue depth of 1 cm,” while a “[c]lommitted
effective dose equivalent ... is the sum of the products of the
weighting factors [provided in the regulations] applicable to
each of the body organs or tissues that are irradiated and the
committed dose equivalent to these organs or tissues.” Id.
The limits
“in present NRC regulations ... have been set at a
Jevel which is conservatively arrived at by incorporat-
ing a significant safety factor. Thus, a discharge or
dispersal which exceeds the limits in NRC regulations
. although possible cause for concern, is not one
which would be expected to cause substantial injury
or damage unless it exceeds by some significant mul-
tiple the appropriate regulatory limit.”
Dumontier v. Schlumberger Tech. Corp., 543 F.3d 567, 570-71
(9th Cir. 2008) (quoting 10 C.F.R. § 140.81(b)(1)), cert. denied,
129 S. Ct. 13829, 173 L. Ed. 2d 587 (2009).
According to the NRC, an individual in the United States
receives, on average, a total annual dose of 3 mSv, or 300 mrem,
resulting from radiation that is generally breathed, ingested or
absorbed. An individual’s annual dose of radiation will vary,
however, depending upon many things, including geographic
location. So people living “in well-ventilated wooden houses on
sandy soil near the ocean would reccive a minimal dose from
radon — one tenth of the United States average — and a minimal
external gamma dose ~— about one-fourth the average. With an
internal and cosmic ray component of about average, the total
dose to these individuals is only lmSv ... per year.” (Jt. App. at
1164.) On the other hand, “people living in Denver, Colorado,
could receive double the cosmic ray dose, triple the gamma dose,
and quadruple the radon dose. With a somewhat higher intake
of radionuclides from drinking water, the total dose is about 10
mSv... per year.” (/d.) “Overall, this range of 1 to 10 mSv... -
a span of a factor of ten — is typical of the variation in back-
ground doses for most United States citizens in a given year.”
(Continued on following page)
App. 15
In this case, the NRC’s presiding officer, during
Petitioners’ administrative appeal of the NRC’s
licensing decision, “found that HRI’s [ISL mining]
operations would not emit airborne radiation in
excess of the 0.1-rem ‘total effective dose equivalent’
(TEDE) limit set out in Part 20 of [the NRC’s] regula-
tions.” (Jt. App. at 1354.) Petitioners, in their petition
for review, do not challenge that finding. Instead,
they assert that the airborne radiation emitted by the
waste and debris from the prior conventional mining
operations on Section 17, considered by itself, already
exceeds § 20.1301(a)(1)’s limit of 0.1 rem. And the
NRC does not dispute that.” The specific question
presented here, then, is whether § 20.1301(a)(1)
requires the NRC, in considering HRI’s licensing
application, to consider only the negligible airborne
radiation expected to result from HRI’s ISL mining
operation or, instead, to aggregate that minute
amount of airborne radiation with the already exist-
ing radioactive emissions from the previously aban-
doned conventional mine site. The NRC determined
(Id.) The FEIS addressing HRI’s license application estimated
that “(t]he average whole-body dose rate to the population in
this part of New Mexico includes a dose of 1.5 mSv/year .. . from
local natural background radiation and 0.75 mSv/year ... from
medical procedures, based on national average. Therefore, total
background estimated to be about 2.25 mSv/year....” (/d. at
1146.)
° Intervenor HRI does dispute this. For our purposes, here,
however, we will assume that the aggregate dose resulting from
the conventional mining debris would exceed the § 20.1301(a)\1)
limit of 0.1 rem annually.
App. 16
that it need only consider the radioactive emissions
expected from the ISL mining operations HRI sought
to license.
a. Whether 10 C.F.R. § 20.1301(a)(1)
“compels” an interpretation oth-
er than that given it by the NRC
In light of the NRC’s determination that it need
consider only the radioactive emissions from the
operation seeking the license, we first consider
whether “an alternative reading lof § 20.1301(a)(1)] is
compelled by [that regulation’s] plain language.”
Thomas Jefferson Univ., 512 U.S. at 512 (quotation
omitted). We conclude it is not.
Section 20.1301(a)(1) requires that “(t]he total
effective dose equivalent to individual members of the
public from the licensed operation does not exceed 0.1
rem (lmSv) in a year.” (Emphasis added.) The clear
language of this regulation supports the NRC’s
decision to focus only on the licensed operation. Thus,
the NRC’s determination is not a “plainly erroneous”
interpretation of the regulation’s language.
In reaching this conclusion, we reject Petition-
ers’ argument that the NRC’s simplistic reading of
this phrase makes the remainder of the sentence at
issue — requiring the TEDE calculation to be made
“exclusive of the dose contributions from background
radiation, from any medical administration the indi-
vidual has received, from exposure to individuals
administered radioactive material and _ released
App. 17
under [10 C.F.R.] § 35.75, from voluntary participa-
tion in medical research programs, and from the
jicensee’s disposal of radioactive material into sani-
tary sewerage in accordance with [10 C.F.R.|
§ 20.3003” — irrelevant. The NRC asserts, however,
that this language clarifies that the NRC’s regula-
tions specifically addressing sanitary sewers and
medical administration of radiation continue to
govern those other matters. This interpretation
explains all but the regulation’s exclusion of back-
ground radiation, and that exclusion makes sense in
its own right.
The NRC also rejected Petitioners’ contention
that “licensed operations” should include a particular
physical location that is under the operator’s control:
HRI’s bare ownership of land containing ra-
dioactive mine spoil is not part of its NRC-
licensed “operation.” It did not bring the ma-
terial to the surface. It is not required to
have an NRC license to possess source mate-
rial in the forn: of unprocessed ore (so long as
it does not process that ore). Nothing in the
record suggests that HRI plans to “process”
the dust and rock that cover the surface of
Section 17.
In re Hydro Res., Inc., 63 NRC at 516 (footnote omit-
ted). The agency’s interpretation of the regulation’s
language, in this regard, is also not “plainly errone-
ous”; that is, the language does not compel another
construction. See Thomas Jefferson Univ., 512 U.S. at
512.
App. 18
Lastly, Petitioners argue that the NRC has
historically interpreted this regulation to include both
unlicensed and unregulated sources of radiation in its
calculation of the TEDE, along with licensed sources
of airborne radiation. The NRC agrees that that was
true for a time, under different versions of this regu-
lation. But the NRC revised § 20.1301 in 1991, chang-
ing language that included radiation from both
licensed and unlicensed sources, see 10 C.F.R.
§ 20.1(b) (1979 ver.); see also 22 Fed. Reg. 548, 549
(Jan. 29, 1957); 44 Fed. Reg. 32,349, 32,352 (June 6,
1979), to the current language, referring only to “the
licensed operation,” 10 C.F.R. § 20.1301(a)(1), see 56
Fed. Reg. 23,391, 23,398 (May 21, 1991). With this
revision, the NRC has now specifically linked the
relevant measured dose to the “licensed operation.”
See 56 Fed. Reg. 23391, 23398 (May 21, 1991). At that
same time, the NRC also reduced the maximum
exposure to members of the public from 0.5 rem to 0.1
rem. See In re TMI, 67 F.3d at 1111 n.18.
b. Whether other indications of the
NRC’s intent at the time it promul-
gated these regulations contradict
the NRC’s current interpretation
of § 20.1301(a)(1)
We must also consider whether indications of the
agency’s “intent at the time of the regulation’s prom-
ulgation” contradict the NRC’s interpretation of 10
C.F.R. § 20.1301(a)(1) at issue here. Thomas Jefferson
Univ., 512 U.S. at 512 (quotation omitted). The NRC’s
App. 19
predecessor, the Atomic Energy Commission (“AEC”),
first promulgated “regulations ‘to establish standards
for the protection of ... licensees, their employees
and the general public against radiation hazards’” in
1957. In re TMI, 67 F.3d at 1110 (quoting 25 Fed.
Reg. 8595, 8595 (1960)). “The preface to the regula-
tion explained, ‘It is believed that the standards
incorporated in these regulations provide, in accord-
ance with present knowledge, a very substantial
margin of safety for exposed individuals. It is believed
also that the standards are practical from the stand-
point of licensees.” Jd. (quoting 25 Fed. Reg. at 8595).
These regulations, then, emphasized safety, of course,
but also the development of nuclear energy when
possible. And this is consistent with the policy estab-
lished by the AEA in general to address “the devel-
opment, use, and control of atomic energy.” 42
10
Congress stated its policy underlying the AEA as follows:
Atomic energy is capable of application for peaceful as
well as military purposes. It is therefore declared to
be the policy of the United States that —
(a) the development, use, and control of atomic ener-
gy shall be directed so as to make the maximum con-
tribution to the general welfare, subject at all times to
the paramount objective of making the maximum con-
tribution to the common defense and security; and
(b) the development, use, and control of atomic encr-
gy shall be directed so as to promote world peace, im-
prove the general welfare, increase the standard of
living, and strengthen free competition in private en-
terprise.
42 U.S.C. § 2011.
App. 20
U.S.C. § 2011; see also English v. Gen. Elec. Co., 496
U.S. 72, 80-81, 110 S.Ct. 2270, 110 L. Ed. 2d 65
(1990) (noting the Atomic Energy Act of 1954
“stemmed from Congress’ belief that the national
interest would be served if the Government encour-
aged the private sector to develop atomic energy for
peaceful purposes under a program of federal regula-
tion and licensing”). To effectuate this purpose, the
AEA provides for “a program of conducting, assisting
and fostering research and development in order to
encourage maximum scientific and industrial pro-
gress” and “to encourage widespread participation in
the development and utilization of atomic energy for
peaceful purposes to the maximum extent consistent
with the common defense and security and with the
health and safety of the public.” 42 U.S.C. § 2013(a),
(d); see Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 221, 103
S. Ct. 1713, 75 L. Ed. 2d 752 (1983) (noting that “a
primary purpose of the [AEA] was, and continues to
be, the promotion of nuclear power,” and that the
AEA’s legislative history “confirm[s] that it was a
major policy goal of the United States that the in-
volvement of private industry would speed the fur-
ther development of the peaceful uses of atomic
energy”) (quotations omitted).
“In 1960, the AEC substantially revised these
regulations ... [,] setting 0.5 rem as the maximum
yearly radiation exposure allowed for the general
public.” In re TMI, 67 F.3d at 1111. These new regu-
lations again emphasized the safe development of
App. 21
nuclear energy, “represent[ing] ‘an appropriate regu-
latory basis for protection of the health and safety
of employees and the public without imposing undue
burdens upon licensed users of radioactive material.’””’
Id. (quoting 25 Fed. Reg. at 8595).
In 1991, the NRC issued the regulation at issue
in this case, 1U C.F.R. § 20.1301. See In re TMI, 67
F.3d at 1111 n.18. This new regulation “reduc[ed] the
annual permissible exposure rate for the public to 0.1
rem per individual — down from the 0.5 rem standard
that had existed for more than three decades.” /d.
This amendment was part of the NRC’s effort to
“amend [| federal regulations to incorporate updated
scientific information and to reflect changes in the
basic philosophy of radiation protection.” Good v.
Fluor Daniel Corp., 222 F. Supp. 2d 1236, 1248 (E.D.
Wash. 2002).
The NRC’s’_ construction of 10 #£4C.F.R.
§ 20.1301(a)(1) in HRI’s case is not contrary to any
indication of the NRC’s intent when it promulgated
that regulation. We note, too, that the NRC’s con-
struction of 10 C.F.R. § 20.1301(a)(1)’s dose limit to
apply only to the operation being licensed is also
consistent with Congressional policy, expressed in the
AEA, to develop and use atomic energy.”
'" The NRC again revised these regulations in 1964 and
1979. See In re TMI, 67 F.3d at 1111 & n.19.
“ We further note, however, that the NRC’s interpretation
of § 20.1301(a)X1)’s dose limit for individual members of the
(Continued on following page)
App. 22
c. Conclusion
For the foregoing reasons, we conclude that the
NRC’s interpretation of 10 C.F.R. § 20.1013(a)(1) to
require the agency to consider only airborne radiation
stemming from the licensed operation itself was not
plainly erroneous or inconsistent with the regula-
. 13
tion.
public would not preclude the NRC from denying a license
application where the already existing airborne radiation
presents a significant threat to the public safety and the li-
censed operation would substantially add to that radiation. That
is because the AEA authorizes the NRC to “establish, by rule,
minimum criteria for the issuance of specific or general licenses
for the distribution of source material depending upon the
degree of importance to the common defense and security or to
the health and safety of the public....” 42 U.S.C. § 2093(b)
(emphasis added). Furthermore, 10 C.F.R. § 20.1301(f) provides
that “[t]he Commission may impose additional restrictions on
radiation levels in unrestricted areas,” where the public might
be exposed, “and on total quantity of radionuclides >t a
licensee may release in effluents in order to restrict the collec-
tive dose.” Thus, the NRC could still deny a license or make a
license more restrictive where a licensed operation would
significantly increase the airborne radiation already being
emitted. But that is not the case here. The parties do not dispute
that HRI’s licensed operation will add only negligibly to the
airborne radiation being emitted on Section 17.
In light of this conclusion, we need not consider the
NRC’s alternative conclusion that the airborne radiation being
emitted from the prior mining operation is background radiation
expressly excluded from the radiation dosage calculation called
for under § 20.1301(a)(1).
App. 23
B. National Environmental Policy Act
Petitioners assert that the manner in which the
NRC considered the airborne radiation at the Church
Rock Section 17 site also violated NEPA. “[NEPA|]
mandates that federal agencies ... assess potential
environmental consequences of a proposed action.”
Utah Envtl. Cong. v. Russell, 518 F.3d 817, 820-21
(10th Cir. 2008); see also New Mexico ex rel. Richard-
son v. Bur. of Land Mgmt., 565 F.3d 683, 703 (10th
Cir. 2009); Citizens’ Comm. to Save Our Canyons v.
Krueger, 513 F.3d 1169, 1177-78 (10th Cir. 2008)
(noting “NEPA places upon federal agencies the
obligation to consider every significant aspect of the
environmental impact of a proposed action”) (quota-
tion omitted). NEPA further “ensures that an agency
will inform the public that it has considered environ-
mental concerns in its decision-making process.”
Krueger, 513 F.3d at 1177-78 (quotation omitted). “By
focusing both agency and public attention on the
environmental effects of proposed actions, NEPA
facilitates informed decisionmaking by agencies and
allows the political process to check those decisions.”
New Mexico, 565 F.3d at 703.
But “NEPA itself does not mandate particular
results”; “{iJnstead [it] imposes only procedural re-
quirements to ensure that the agency, in reaching its
decision, will have available, and will carefully con-
sider, detailed information concerning significant
environmental impacts.” Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 376, 172 L. Ed. 2d 249
(2008) (quotations omitted); see also New Mexico, 565
App. 24
F.3d at 704; Russell, 518 F.3d at 821 (“NEPA dictates
the process by which federal agencies must examine
environmental impacts, but does not impose substan-
tive limits on agency conduct.”). Nor does NEPA
“require agencies to elevate environmental concerns
over other appropriate considerations.” Krueger, 513
F.3d at 1178 (quotation omitted). Instead, NEPA
“requires only that the agency take a ‘hard look’ at
the environmental consequences before taking a
major action.... The role of the courts in reviewing
compliance with NEPA is simply to ensure that the
agency has adequately considered and disclosed the
environmental impact of its actions... .” Id. at 1178
(citations, quotations omitted); see also New Mexico,
565 F.3d at 704.
1. Standard of review
NEPA itself does not provide for a private right
of action; therefore, this court reviews an agency’s
approval of a project, including the agency’s compli-
ance with NEPA, under the APA. See Russell, 518
F.3d at 823. In doing so, this court “will not set aside
an agency decision unless it is ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.’” Jd. (quoting 5 U.S.C. § 706(2)(A)); see also
New Mexico, 565 F.3d at 704.
An agency’s decision is arbitrary and capri-
cious if the agency entirely failed to consider
an important aspect of the problem, offered
an explanation for its decision that runs
counter to the evidence before the agency, or
App. 25
is so implausible that it could not be ascribed
to a difference in view or the product of
agency expertise. Furthermore, we must de-
termine whether the disputed decision was
based on consideration of the relevant factors
and whether there has been a clear error of
judgment.
Russell, 518 F.3d at 823-24 (quotation, citations,
alterations omitted); see also New Mexico, 565 F.3d at
704. Again, our “deference to the agency is especially
strong where the challenged decisions involve tech-
nical or scientific matters within the agency’s area of
expertise.” Russell, 518 F.3d at 824 (quotation omit
ted). “A presumption of validity attaches to the agen-
cy action and the burden of proof rests with the
[parties] who challenge such action.” Krueger, 513
F.3d at 1176 (quotation omitted).
2. Analysis
Petitioners assert that the NRC’s consideration
of airborne radiation at Section 17 violated NEPA in
two respects: 1) the NRC failed to consider the cumu-
lative amount of airborne radiation that will be
emitted from both the prior conventional mining
operation and HRI’s proposed ISL mining operation;
and 2) the NRC mischaracterized the airborne radia-
tion as “background radiation.”
App Zh
a. Whether the NRC erred in failing
to consider the cumulative air-
borne radiation that will result
from both the prior conventional
mining activities and HRs pro-
posed ISL mining operation
In arguing that the NRC violated NEPA by
failing to consider the cumulative impact of the au
borne radiation at Section 17, Petitioners rely on 40
CLF.R. § 1508.7." Under NEPA
lojur yob is NOL Lo Question the wisdom of the
agency's ultimate decision or its conclusion
concerning the magnitude of indirect) im
pacts. Rather, our job is to examine the ad
ministrative record, as a whole, to determine
whether the agency made a reasonable, good
faith, objective presentation of those impact:
sufficient to foster public participation and
informed decision-making
40 CFR. & 1508.7 define cumulative impact” a
the impact on the environment which results from th
incremental impact of the action when added to past
present, and reasonably foresecable future actions re
yardless of what apency (Federal or non-rederal) or
person undertake such other action: (cumulative
impacts can result from individually minor but colle
'
lively sipmifteant actions taking place over a period of
Lime
See also Wilderness Workshop vo. U.S. Bur. of Land Mygmt., 55)
KeSd 1220, 1228 n.& (10th Cir. 2008). Utah Enotl Conpress
Richmond, 443 F.4d 1127, 1155, 3159-40 (10th Cir, 2007). The
NRC has also promulpated its own repvulations for complying
with NEPA, 10 C.F R. Pt. 5)
App. 27
Fuel Safe Washington v. FERC, 389 F.3d 1313, 1331
(10th Cir. 2004) (quotations, citations, alterations
omitted); see also Richmond, 483 F.3d at 1140 (noting
that “NEPA does not prohibit approval of projects
with negative cumulative effects; it only requires that
the [agency] consider and disclose such effects”). We
conclude the NRC has met that standard here.
In addressing “airborne radiation,” the NRC’s
FEIS noted that “(t]he primary radiological impact to
the environment in the vicinity of the project results
from naturally occurring cosmic and _ terrestrial
radiation and naturally occurring radon-222 and its
daughters.” (Jt. App. at 276.) After further noting
that “[t]he average whole-body dose rate to the popu-
lation in this part of New Mexico,” resulting from
“local natural background radiation and ... from
medical procedures[,] ... is estimated to be about
2.25 mSv/year,” the FEIS went on to acknowledge
that the “l[rladiological effects during project con-
struction would include natural background plus
remnant radiation stemming from previous mining
and milling activities near the Church Rock site.” (Jd.
at 276-77.)
The FEIS went on to discuss the possible air-
borne radiation that the ISL mining operations would
create, and then considered
the cumulative effect of the long history of
mining in the area and the large exposures
to radon (and other radioactive elements
that form as radon decays) that occurred
primarily to miners and resulted in a high
App. 28
incidence of cancer among them. [The FEIS]
concludes that the proposed project would
result in a negligible increase in existing im-
pacts to the area due to mining and milling.
The NRC staff is aware that to some mem-
bers of the local community, any increase in
the cumulative effect or in radioactivity,
brought to the surface by any uranium min-
ing activity, would be unacceptable. This
perception is likely to be most prevalent
among those whose health has been, or who
have family members or friends whose
health has been negatively affected by ura-
nium mining activity.
Ud. at 284.)
The FEIS concluded that HRI’s ISL mining
would have “negligible” impact on the current air-
borne emissions levels:
The proposed project would make a minor
contribution to cumulative impacts in terms
of health physics and _ radiological im-
pacts.... The annual population dose was
estimated for the period in time of greatest
releases from all three project sites. Two
population dose estimates were calculated:
one for the Crownpoint/Unit I sites and one
for the Church Rock site. As the area of im-
pact is similar for both calculations, the re-
sults were combined with a total population
dose less than .01 man-Sv/year. ...
Northwest New Mexico has a long history
of uranium mining and milling. Effects of
App. 29
previous mining and milling operations in
the area are considered here as they relate to
the proposed licensing action. The Church
Rock facility as proposed would mine an area
previously mined by underground mining to
supply ore to the Church Rock mill site...
Early mines and mills operated under much
less stringent standards than exist today,
and this resulted in large exposures to radio-
active materials, especially radon and its
daughters. The exposures were large enough
to result in a high incidence of cancer among
workers, and information gathered on these
workers resulted in development of risk fac-
tors on radon.
In addition, the methods used to mine and
mill the uranium (i.e., “conventional” min-
ing) resulted in very large amounts of radio-
actively and chemically contaminated sands
and slimes, also known as tailings. In 1978,
the U.S. Congress passed the Uranium Mill
Tailing Radiation Control Act, which re-
quired standards to be developed to control
exposure from tailings and clean up past
sites of uranium milling... .
The proposed project would result in a negli-
gible increase in cumulative impacts in the
area due to uranium mining and milling.
HRI has proposed an ISL process which, by
its nature, does not result in large amounts
of tailings or environmental releases of radio-
active particulate material. Additionally, HRI
has proposed to use a vacuum dryer, which
reduces the total releases of radio-active
App. 30
particulates to nearly zero, and a pressurized
process circuit with a feedback system to re-
turn radon to the mine zone, which reduces
environmental radon releases. The expected
exposures from the remaining possible
sources of radon are a very small fraction of
the allowable limits for exposure of the pub-
lic. The amount of generated tailings is very
small, in the tens of cubic meters per year,
and would be disposed of at an off-site li-
censed facility. In addition, the facility and
related well fields would be required to be
decontaminated and decommissioned to the
appropriate State and Federal standards.
(id. at 289-90.)
It is clear, then, that the NRC did consider the
cumulative effect of the airborne radiation from past
mining as well as that expected from HRI’s proposed
ISL operations.” Petitioners, nevertheless, fault the
The FEIS also considered the cumulative impact of the
past, present and future airborne radiation when it noted, in
several places, that as a result of the NRC granting HRI a
license, HRI will be required to clean up the Section 17 site, thus
remedying the past contamination. For example, the FEIS noted
that
[t]he proposed project may result in a positive health
effect at the Church Rock site. This effect would occur
because some areas of the site have higher concentra-
tions of residual activity (from previous mining activi-
ties) than would be allowed in decommissioning the
site under the proposed action. Therefore, these areas
may be cleaned up as part of the well field decontami-
nation.
(Continued on following page)
App. 31
FEIS for not quantifying the amount of airborne
radiation already being emitted on Section 17 from
the past mining debris. “But NEPA’s ‘hard look’ does
not necessarily always require the agency to develop
‘hard data.’” Krueger, 513 F.3d at 1179 (citing Ecolo-
gy Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1190
(10th Cir. 2006)). In this administrative proceeding,
the NRC was considering the environmental impact
of granting HRI a mining license. And the NRC
determined that those mining operations would have
only a negligible effect on the amount of airborne
radiation on Section 17. The agency’s “hard look” at
the airborne emissions HRI’s operations are expected
to produce, therefore, sufficed to meet the NRC’s
obligation under NEPA to consider the cumulative
impact that granting HRI’s license would have on
airborne radiation. The NRC was not tasked here
with specifically mitigating the contamination left
from prior mining operations.’ Cf. Richmond, 483
F.3d at 1140 (noting that NEPA requires only that
the agency consider and disclose negative effects; it
(Jt. App. at 284.) Although Petitioners disagree with this
reasoning, the FEIS’s discussion of this possibility nevertheless
reinforces the fact that the FEIS did consider the cumulative
impact of the past, present and future airborne radiation at
Section 17.
'* Because they raise the issue for the first time before this
court in their reply brief, Petitioners have waived their argu-
ment that the FEIS improperly averaged airborne radiation
readings. We, therefore, decline to address tnat issue. See
Silverton Snowmobile Club v. U.S Forest Serv., 433 F.3d 772,
783-84 (10th Cir. 2006).
App. 32
does not prohibit the agency’s approval of programs
with negative cumulative effects).
2. Whether the NRC erred in character-
izing the airborne radiation emitted
from the prior conventional mining
operation as background radiation
Petitioners also argue that the FEIS, in address-
ing the effects of the past mining operations, errone-
ously treated the airborne radiation already being
emitted from the debris as naturally occurring rather
than as man-made background radiation. Even if it
did so, the FEIS still adequately considered the
cumulative impact from all of these sources of air-
borne radiation, regardless of how the NRC charac-
terized that airborne radiation.
3. Conclusion
For the foregoing reasons, the NRC’s considera-
tion of the cumulative impact of airborne radiation at
Section 17 amounted to the “hard look” NEPA re-
quired. We cannot say, therefore, that the NRC’s
decision to issue HRI a license was arbitrary, capri-
cious, an abuse of discretion, or otherwise contrary to
law.
App. 33
Ill. GROUNDWATER CONTAMINATION AND
RESTORATION AT SECTION 8
“Although ... ‘in situ’ leach mining techniques
are considered more environmentally benign [than]
traditional mining and milling practices they still
tend to contaminate the groundwater.” (Jt. App. at
1394 (NRC publication “Consideration of Geochemical
Issues in Groundwater Restoration at Uranium In-
Situ Leach Mining Facilities”).) In light of that, the
lhcense the NRC issued HRI requires HRI to restore
the groundwater after it finishes mining each site.
The license also requires HRI to maintain an ade-
quate financial surety to guarantee that HRI or a
third party, in HRI’s absence, will be able financially
to conduct this restoration. See also 10 C.F.R. §§ 40.1,
40.36, 40.42, App’x A, Criterion 9. Petitioners assert
that the NRC, in crafting these license provisions,
violated the AEA’s mandate that the NRC not issue
any license that, “in the opinion of the Commission,”
is “inimical to the common defense and security or
the health and safety of the public.” 42 U.S.C. § 2099;
see also 10 C.F.R. § 40.32(d). Further, Petitioners
contend that the FEIS violated NEPA because it
failed to take the required “hard look” at the possible
impact ISL mining might have on Section 8’s
groundwater quality, and particularly the impact on
that groundwater quality should HRI be unable to
meet the restoration goals set forth in the license.
App. 34
A. Atomic Energy Act
As previously mentioned, the AEA mandates that
the NRC not grant a license “if, in the opinion of the
Commission, the issuance of a license to such person
for such purpose would be inimical to the common
defense and security or the health and safety of
the public.” 42 U.S.C. § 2099; see also 10 C.F.R.
§ 40.32(d). In order to implement that mandate, the
NRC has promulgated regulations governing “the
issuance of [these] licenses . . . and [to] establish and
provide for the terms and conditions upon which the
[NRC] will issue such licenses.” 10 C.F.R. § 40.1(a);
see also id. § 40.1(b). Among those regulations, Ap-
pendix A to 10 C.F.R. Pt. 40 sets forth criteria the
NRC will consider in making licensing determina-
tions for an ISL uranium mining operation.’ See
In re Hydro Res., Inc., 49 N.R.C. 233, 235 (1999). At
issue here, then, is whether the conditions the NRC
imposed on the license it issued HRI, addressing the
” According to HRI, the NRC promulgated Appendix A’s
criteria with only conventional uranium milling operations in
mind. But a panel of the NRC’s Atomic Safety and Licensing
Board (“ASLB”) concluded in this case that 10 C.F.R. Part 40
and its Appendix A also apply generally to ISL mining. See Jn re
Hydro Res., Inc., 49 N.R.C. at 235; see also In re Hydro Res., Inc.,
51 N.R.C. 227, 238 (2000). Nevertheless, some of Appendix A’s
criteria, because they are aimed at uranium milling, are not
directly relevant to ISL mining. See In re Hydro Res., Inc., 49
N.R.C. at 236. After the NRC issued HRI the license disputed in
this case, the agency developed a Standard Review Plan specifi-
cally applicable to ISL recovery operations.
App. 35
restoration of the quality of the groundwater at
Section 8, remain true to the AEA’s mandate.
1. Standard of review
This court “will not set aside an agency’s decision
unless it is ‘arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.’”
Russell, 518 F.3d at 823 (quoting 5 U.S.C.
§ 706(2)(A)). Further, this court defers to the agency’s
reasonable interpretation of its own regulations and,
thus, will “accept the agency’s position unless it is
plainly erroneous or inconsistent with the regula-
tion.” Holowecki, 552 U.S. at 397 (quotations omit-
ted).
2. HRI’s license”
a. Restoration of water quality
The problem the NRC faced in this case, regard-
ing the restoration of the groundwater at Section 8,
was this: NRC regulations require that HRI decom-
mission the site, including restoring the quality of the
groundwater. But no one had, as yet, fully restored
'* HRI’s license incorporated “all commitments, representa-
tions, and statements made in its licensing application,” as well
as the “Crownpoint Uranium Project Consolidated Operations
Plan (COP) ... except where superseded by license conditions
contained in th[e] license.” (Jt. App. at 314 (§ 9.3).) In addition,
the license also included a later-developed “Restoration Action
Plan.” See In re Hydro Res., Inc., 51 N.R.C. at 234, 238, 241-42.
App. 36
the groundwater quality after an ISL mining opera-
tion.’ Nonetheless, based upon results from pilot
demonstrations and small-scale tests, the NRC
became convinced that it was possible for HRI to
restore the groundwater at a well site after it finished
ISL mining.
HRI proposes to do so by
flushing the aquifer with naturally occurring
groundwater and decontaminated water to
remove any remaining lixiviant and degrad-
ed groundwater. Affected water in each mine
unit being restored would be withdrawn ... ,
processed through [the] ion exchange to re-
move uranium, then treated to remove radi-
um and total dissolved solids. This treated
water, known as permeate, would then be
reinjected to further flush the aquifer.
Groundwater sweep and pernieate injection
would be balanced so that a cone of depres-
sion would be maintained, causing ground-
water to flow toward the mining unit. Thus,
natural groundwater would be drawn into
the mining unit’s center.
(Jt. App. at 244.) The number of times the aquifer
will need to be flushed is measured by “pore vol-
umes”:
” There is evidence in the record indicating that, after the
NRC issued the FEIS in this case, groundwater quality was
successfully restored at the Bison Basin mine following an ISL
mining operation.
App. 37
A pore volume is an indirect measure of the
volume of water that must be pumped or
processed to restore the groundwater. It rep-
resents the water that fills the void space in-
side a certain volume of rock or sediment.
Restoration costs are closely linked to the
amount of water that must be processed to
effect restoration. The pore volume parame-
ter is used to represent how many times the
contaminated volume of water in the rock
must be displaced or processed to restore
sroundwater quality. It provides a means of
comparing the level of effort required to re-
store groundwater regardless of the scale of
the test. In general, the more pore volumes
of water it takes to restore groundwater
quality, the more money it will cost to
achieve restoration.
(id. at 258.)
In calculating the restoration efforts needed for
HRI to restore the groundwater quality during its
Crownpoint project, the NRC considered at length
data HRI submitted from demonstrations and test
results “conducted at other project locations.” (/d. at
” HRI submitted to the NRC data from several studies and
projects. The NRC first considered the results of HRI’s own
small core tests done in a laboratory using samples of rock
removed from the ore zones at the sites HRI seeks to mine as
part of its Crownpoint project. HRI conducted these tests in
order to “demonstrate the restoration potential” of this area. (Jt.
App. at 258-60.) Data from tests conducted on the core samples
taken from the Church Rock site “show[ed] the restored values
(Continued on following page)
App. 38
Eo
after 20 pore volumes [weJre circulated through the core,” 16 if
the pore volumes were run through at a faster pace; tests on the
Crownpoint core took 28 pore volumes to reach “restored
values.” (Ud. at 260: see also id. at 261-64.) While the NRC
recognized that results from such small-scale studies can
provide useful information, the agency had “significant con-
cerns” about whether these small-scale test results accurately
reflected an actual full-scale restoration process. (/d. at 258-60.)
Next, HRI submitted the results of “a single-well pilot
solution mine test, conducted in the Westwater Canyon aquifer”
- the aquifer where HRI proposes to conduct the ISL mining at
issue here — “near the Church Rock site in June 1980 by United
Nuclear Corporation and Teton Exploration Company.” (/d. at
260.) This test “showled] the restored values after 3 pore
volumes had been pumped from the aquifer.” (Jd.) Nevertheless,
the data from this test indicated that not all of the individual
parameters — chemicals or properties used to measure ground-
water quality — were returned to baseline levels. While this test
“was a larger-scale test than HRI’s core restoration studies,” the
NRC was still concerned that the Teton
test may not represent restoration of a full-scale well
field because (1) considerable dilution from uncontam-
inated groundwater occurs during the clean-up phase;
(2) one pore volume (at most) was leached, which is
much less than in a commercial operation; (3) there
‘as a relatively short contact time between the rock
and lixiviant (5 days); and (4) fresh lixiviant was not
continuously injected into the formation as would oc
cur in an operating ISL mine.
Ud.)
HRI also submitted data from a 1979-80 pilot project,
referred to as “Mobil Section 9 pilot,” conducted by Mobil Oi)
Company at a location one mile from HRI’s proposed Unit 1
mine site. Ud. at 266-67.) In that test, Mobil created an actual
well field and injected lixiviant there for eleven months. This
test “showled] restored water quality values after 16.7 pore
volumes had been pumped from the aquifer.” (/d.) But again not
all of the individual parameters were restored to baseline levels
(Continued on following page)
App 39
In particular, Mobil had trouble restoring the concentration of
molybdenum and radium to pre-mininy levels
In addition to these test results, HRI also submitted
“restoration demonstration data” from its production-scale
facilities in Wyoming and New Mexico. (/d. at 266.) The NRC
noted that it “regulates ISL mining in Wyoming and New
Mexico,” and that it had previously “approved the restoration of
several test patterns [there] to explore the feasibility of ISL
mining or demonstrate the feasibility of production-scale
restoration.” Ud.) But the “NRC has not yet approved the
successful restoration of a production-scale well field at any of
its licensed sites.” Ud.)
The NRC went on to acknowledye that Texas had “approved
groundwater restoration of production-scale ISL facilities,” but
that occurred “in groundwater of lower water quality than that
on the New Mexico properties” at issue in HRI’s license applica-
tion. Ud.) For that reason, the NRC did “not consider the Texas
data as representative for demonstrating restoration at the New
Mexico sites.” (/d.)
Lastly, the NRC noted the results of its own test, “conducted
to investigate the ability of natural geochemical processes to
restore water quality after ISL mining activities in an aquifer.”
(id. at 268.) That test studied the migration of lixiviant “down
rradient from a mined area into the area of an aquifer where
reducing conditions occur naturally.” (/d.)
The study indicated that major ion concentrations el-
evated during ISL mining, such as sodium, chloride,
and sulfate, are affected very little when the lixiviant
migrates into the undisturbed reduced zone. As a
result, concentrations tend to remain at the level
to which the water was restored for some distance
from the area of former mining. Conversely, redox-
(oxidation/reduction) sensitive ions such as uranium,
arsenic, selenium, and molybdenum precipitate from
solution if the restored water moves into a reducing
zone. Therefore, after restoration activities, if ground-
water moves into a reducing area, concentrations of
these ions should rapidly decrease in the groundwater
(Continued on following page)
Ay p ,f
258%.) The NRC concluded from this data that “all thre
paramete! " used by the license to measure vround
wate! quality can eventually be restored to water
use standards.” (dd. at 269.) The NRC. however, al
concluded that. notwith Landing these demonstration
and test results and because “water quality in aqu
ler containing uranium deposit may be highly
variable} groundwater restoration eriteria for
peciiie mining projects should be set taking: into
account ie pecili condition and patial Voriabion
(id. at 268.) Further. “lrlestoration criteria should be
based on a tatistical analysi a) fyroundw iter chen
try data from a lary et of well ampled over
period of time. (Ud
In hehe 7) Lhe C’ CONCIUSIO#N Live NR in Crattuin
the terms of HRI heense addre ing restoration of
yround water quality at Section &, did two thing
Kirst, the NRC determined that HERI's restoration
efforts would be measured using thirty-five pecihed
paramete! r chemical elements or properts
lad Phy Lus wso indicated that water i ity " i
ontaimminy uranium deposits may be highly arycatohe rf
Hithi's leense pecihically provide
In establishing restoration vou! Lhe followinp 4
ramcver!: hall bye measured alkalinity HMmMmMmOnMN
imsenic. barium, bicarbonate. boron, cadmium, cal
um, carbonate, chlomde, chromium, copper, fluorids
electrical conductivit iron, lead, mapnesium, mat
vanese, mercury, molybdenum, mickel, nitrate, pil
potassium, combined radium-226 and radium-22*
lenium, sodium, silver, sulfate, total dissolved soli
( ontlinuecd o1 followiny prcipie
App. 41
“HRI [is] required to use baseline | pre-mining] condi-
tions as the primary restoration target for all constit-
uents” or parameters. (/d. at 244.) The parties do not
challenge this means by which the license measures
HRI’s restoration efforts.
Lixiviant shall not be injected into a well
field before groundwater quality data is col-
lected and analyzed to establish groundwater
restoration goals for each monitored aquifer
of the well field, as follows:
A) The lcensee shall establish ground-
water restoration goals by analyzing three
independently-collected groundwater sam-
ples of formation water from: (1) each
monitor well in the well field; and (2) a
minimum of one production/injection well
per acre of well field. Samples shall be
collected a minimum of 14 days apart
from each other. Groundwater resto-
ration goals shall be established on a
parameter-by-parameter basis, with the
primary restoration goal to return all
parameters to average pre-lixiviant injec-
tion conditions. If groundwater quality pa-
rameters cannot be returned to average
pre-lixiviant injection levels, the second-
ary goal shall be to return groundwater
quality to the maximum concentration
uranium, vanadium, zinc, gross Beta, and gross Alpha
(excluding radon, uranium, and radium).
(Jt. App. at 320.)
App. 42
limits specified in the U.S. Environmen-
tal Protection Agency (EPA) secondary
and primary drinking water regulations.
The secondary restoration goal for bari-
um and fluoridel, however,] shall be set
to the State of New Mexico primary
drinking water standard. The secondary
restoration goal for uranium shall be
0.44 mg/L (300 pCi/L).”
(Ud. at 320 (§ 10.21) (footnote added).)” The FEIS
explained that meeting the secondary goals will
suffice if “water quality parameters cannot be re-
turned to average pre-mining baseline levels through
reasonable restoration efforts.” Ud. at 244.) And,
although HRI’s license does not state this, the FEIS
suggests that if HRI “found that it were impracticable
to restore to primary or secondary goals, it might
request a license amendment that would allow some
change in restoration requirements on a parameter-
by-parameter basis.” (/d. at 256.) The FEIS indicates,
however, that
lilf a groundwater parameter could not be
restored to its secondary goal, HRI would
have to make a demonstration to NRC that
leaving the parameter at the higher concen-
tration would not be a threat to public health
“ The parties later agreed to reduce this amount to 0.03
mg/L. See In re Hydro Res., Inc., 62 N.R.C. 77, 92 & n.7 (2005).
“ “These goals are consistent with the NRC Staff Technical
Position Paper Groundwater Monitoring at Uranium In Situ
Solution Mines (NRC 1981b).” (Jt. App at 256.)
App. 43
and safety and that, on a parameter by pa-
rameter basis, water use would not be signif-
icantly degraded.
Id.)
The NRC was particularly concerned about
restoring the “total dissolved solids,” or “IDS,” pa-
rameter:
TDS is a measure of the total sum of all dis-
solved constituents, but it is most affected by
the major constituents (sulfate, chloride, cal-
cium, bicarbonate, carbonate, fluoride, sodi-
um, and potassium). However, not all major
constituents have a secondary or primary
drinking water standard (for example, bicar-
bonate, carbonate, calcium, magnesium, po-
tassium). Consequently, it is possible that
after groundwater restoration, the TDS sec-
ondary goal might be achieved, but the sec-
ondary goal for individual major ions that
contribute to TDS might not be achieved. If
such a situation occurred, HRI would have to
make a demonstration to NRC that leaving a
parameter at higher than secondary goal
concentrations would not be a threat te pub-
lic health and safety and that water use
would not be significantly degraded. For
groundwater with TDS concentrations less
than the secondary goal, NRC staff hals]
assumed that worst-case groundwater resto-
ration would return water quality to the sec-
ondary goal, even though it cannot be achieved
without leaving some of the major parameters
at higher than background concentrations
App. 44
Gi.e., between primary and secondary goal
concentrations).
Ud. at 256-58.)
The second thing the NRC did in drafting the
terms of HRI’s license was to employ a graduated
approach to groundwater restoration at Section 8 and
as to the Crownpoint project as a whole. Because
“water quality in aquifers containing uranium depos-
its may be highly variable” and, thus, “groundwater
restoration criteria for specific mining projects should
be set taking into account site-specific conditions” (id.
at 268), the license requires HRI, when it begins
mining at Section 8, to conduct a demonstration of its
restoration methods. HRI must set aside a well field
in Section 8, perform ISL mining there “for at least
three months under commercial activity conditions,”
and then restore the groundwater quality in this test
field “to levels consistent with baseline.” Ud. at 311.)
HRI will then be able to use this demonstration to
calculate the pore values needed generally to restore
the groundwater throughout the project to baseline.
“Authorization for expansion of mining into addition-
al areas will be contingent upon the results of the
restoration demonstration.” (/d.)
b. Surety to guarantee the finan-
cial ability to conduct restora-
tion efforts
In order to facilitate the restoration of a mine site
after the operator has finished mining it, the NRC’s
App. 45
regulations further require that the mine operator
provide a surety in order to insure that the licensee
will have the economic wherewithal to “decommis-
sion” the ISL mine site. 10 C.F.R. Pt. 40, App. A,
Criterion 9. The NRC will review the amount of the
required surety annually and can adjust the surety
requirements as necessary “to recognize increases or
decreases resulting from inflation, changes in engi-
neering plans, activities performed, and any other
conditions affecting cost.” Jd.
In addressing this required surety arrangement,
HRI’s license mandates that the “ground water
restoration of the initial well fields shall be based on
nine pore volumes” (zd. at 312):
Surety for groundwater restoration of the in-
itial well fields shall be based on 9 pore-
volumes. Surety shall be maintained at this
level until the number of pore volumes re-
quired to restore the groundwater quality of
a production-scale well field has been estab-
lished by the restoration demonstration de-
scribed in [the license’s section] 10.28. If at
any time it is found that well field restura-
tion requires greater pore-volumes or higher
restoration costs, the value of the surety wil!
be adjusted upwards. Upon NRC approval,
the licensee shall maintain the NRC-,
approved financial surety arrangement con-
sistent with 10 CFR Part 40, Appendix A,
Criterion 9.
App. 46
Annual updates to the surety amount, re-
quired by 10 CFR Part 40, Appendix A, Cri-
terion 9, shall be provided to the NRC at
least 3 months prior to the anniversary date
of the license issuance. If the NRC has not
approved a proposed revision 30 days prior to
the expiration date of the existing s rety ar-
rangement, the licensee shall extend the ex-
isting arrangement, prior to expiration, for 1
year. Along with each proposed revision or
annual update of the surety tne licensee
shall submit supporting documentation
showing a breakdown of the costs and the
basis for the cost estimates with adjustments
for inflation (i.e., using the approved Urban
Consumer Price Index), maintenance of a
minimum 15 percent contingency, changes in
engineering plans, activities performed, and
any other conditions affecting estimated
costs for site closure.
Ud. at 315.)
3. Petitioners’ challenges to the license’s
terms governing the restoration of
groundwater at Section 8
Petitioners assert that the NRC violated the
AEA, in two ways, when it issued HRI a license to
conduct ISL mining at Section 8.
App. 47
a. The license the NRC issued HRI
is inimical to the public’s health
and safety because the nine pore
volumes required by the license
to restore the ground water at
Section 8, and the surety based
upon that nine-pure-volume res-
toration, are inadequate
Petitioners contend that the NRC acted arbitrari-
ly and capriciously in basing HRI’s license and the
required surety on a nine-pore-volume restoration
effort. More specifically, Petitioners contend that the
nine pore volumes will be inadequate to insure the
public health and safety, as the AEA requires.
In choosing nine pore volumes, the NRC rejected
HRI’s original proposal that a four-pore-value resto-
ration effort would be sufficient to restore the
groundwater quality. The NRC chose nine pore
volumes based on the agency’s detailed analysis of
the test and demonstration results HRI submitted,
see supra n.20. Summarizing those results, the NRC
concluded:
Depending on the parameter and the test
chosen, the pore volumes required to achieve
the lower water quality of the secondary res-
toration goal or background ranged from less
than 1 pore volume to greater than 28 pore
volumes. However, plots of TDS concentra-
tions and specific conductivity values (an
indirect measure of TDS) show little im-
provement with continued pumping after 8
to 10 pore volumes. The Mobil Section 9 pilot
App. 48
is the largest restoration demonstration con-
ducted in the project area to date. During
groundwater restoration activities in the
Mobil demonstration, TDS concentrations
were close to the secondary goal of 500 mg/L
after 6.9 and 9.7 pore volumes. On the basis
of the data submitted by HRI, the [NRC]
staff conclude[s] that practical production-
scale groundwater restoration activities
would at most require a 9 pore volume resto-
ration effort. Accordingly the staff ha[s] cal-
culated groundwater impacts assuming the
use of 9 [pore] volumes for groundwater
restoration. Furthermore, surety should be
maintained at this level until the number
of pore volumes required to restore the
groundwater quality of a production-scale
well field has been demonstrated.
(Jt. App. at 269.)
“In order for a factual determination to survive
review under the arbitrary and capricious standard,
an agency must examine the relevant data and
articulate a rational connection between the facts
found and the decision made.” New Mexico, 565 F.3d
at 713 (quotation, alterations omitted); see also Rus-
sell, 518 F.3d at 831. There is evidence in the admin-
istrative record supporting the NRC’s determination
that it is a reasonable estimate that HRI will be able
to restore groundwater quality in Section 8 using
nine pore volumes. For instance, the test results
detailed in the FEIS suggest restoration of the
groundwater quality is eventually possible. And in
App. 49
some of those tests, water quality was restored with
fewer than nine pore volumes.
In addition, based upon those test results, the
NRC’s hydrologist, William Ford, indicated that it is
“extremely likely that after in situ leach mining is
completed, the groundwater quality will be restored
to acceptable levels so that the water use of the
aquifer is maintained.” (Jt. App. at 484.) Ford further
asserted that, while the Mobil Section 9 demonstra-
tion indicated that “it is unlikely that groundwater
restoration activities at the Church Rock site will
achieve baseline concentrations for all groundwater
parameters,” at “the 9-10 pore volume range,” “it is
likely that most, if not all, of t. e groundwater param-
eters will achieve the secondary groundwater restora-
tion goals stated in HRI]’s License Condition 10.21.”
(Id.)
While Ford noted that “[a]pproximately 74% of
the parameters monitored in the Mobil demonstra-
tion met the secondary groundwater restoration goals
after 9-10 pore volumes of restoration effort” (id. at
484-85), he went on to explain why several of the
parameters that the Mobil Section 9 demonstration
could not restore should not present a problem for
HRI’s restoration efforts. According to Ford, two
of the six parameters that Mobil could not restore —
calcium and sodium — do not have primary or second-
ary drinking water standards because they are
not hazardous to humans. And another — molybdenum
— “is primarily a concern for cattle uptake.” (Ud. at
485.) Ford concluded that, in the Mobil Section 9
App. 50
restoration demonstration, “[a]t 9.7 pore volumes,
total dissolved solids (TDS) concentrations were at
587 parts per million (ppm), which was close to the
seccndary drinking water standard for dissolved
solids of 500 mg/L.” Ud.) Ford, therefore, concluded
that “it is very likely that the TDS secondary goal will
be achieved at Section 8, even though it cannot be
accomplished without leaving some of the major
parameters which are not a threat to public health
and safety at higher than background concentra-
tions.” (/d.) In addition, Ford noted that, although the
Mobil test did not restore arsenic after 9 pore vol-
umes, it “was very close to” and “was for all practical
purposes at the primary drinking water standard.”
(Id. at 485-86.) Finally, Ford acknowledged that the
Mobil Section 9 demonstration was not able to restore
uranium and radium levels after nine pore volumes.
But after 9.7 pore volumes, “uranium was nearly in
compliance with the NRC standard, and radium
concentrations were restored to anticipated baseline
conditions.” (id. at 486.) Moreover, Ford opined that
“parameters like arsenic, radium, molybdenum, and
uranium are readily retarded by rock water interac-
tions,” and “[t)herefore, it is extremely unlikely that
after restoration activities, arsenic, radium, molyb-
denum, or uranium levels would impact water quality
outside the restored well field areas.” (/d.)
The NRC’s Atomic Safety and Licensing Board
found Ford’s explanation persuasive. See In re Hydro
Res., Inc., 50 N.R.C. 77, 102-06 (Aug. 20, 1999). We
cannot conclude here that that determination was
App. 51
arbitrary or capricious. See New Mexico, 565 F.3d at
713. Nor do we find any evidence in the administra-
tive record to support Petitioners’ assertion that the
NRC based its adoption of the nine-pore-volume
restoration effort on economic reasons and “HRI’s
financial well-being.” (Pet. Br. at 47 n. 32.)
The NRC, then, considered in detail HRI’s ability
to restore the groundwater at Section 8 to its pre-
lixiviant levels. And in drafting HRI’s license, the
NRC took a reasoned approach by requiring HRI to
attempt to restore the groundwater at Section 8
before beginning ISL recovery operations at any of
the other three sites. In light of that, we must uphold
the NRC’s licensing decision in this respect as not
arbitrary or capricious, an abuse of discretion or
contrary to law. See Utah Shared Access Alliance v.
Carpenter, 463 F.3d 1125, 1134 (10th Cir. 2006)
(noting that for an agency decision to survive arbi-
trary-and-capricious review, the agency must have
“examined the relevant data and articulated a ra-
tional connection between the facts found and the
decision made,” and “there must be a reasoned basis
for the agency’s action”).
For the same reasons, we reject Petitioners’
related contention that the NRC failed to require HRI
to post an adequate surety for its groundwater resto-
ration efforts. Petitioners contend that the actual
pore volumes necessary to restore the groundwater at
Section 8 could be much greater than the nine pore
volumes on which the surety is currently based. But
the regulations, as well as HRI’s license, call for a
App. 52
surety based upon the “estimated” restoration costs.
(Jt. App. at 315.) And, as just explained, the NRC has
made a reasoned and informed determination of the
needed restoration efforts. Further, based upon the
relevant regulations, see 10 C.F.R. Part 40, Appendix
A, Criterion 9, the license provides for an annual
review of the surety and a mechanism by which that
surety can be changed.
b. The license the NRC issued HRI
is inimical to the public’s health
and safety because it allows HRI
to remedy any deficiency in the
surety funding at the time the
site is decommissioned
Petitioners also argue that the NRC shirked its
responsibility to set restoration goals and the surety
in an amount adequate to insure the operator can
restore the groundwater by simply relying on the fact
that the surety can be increased later, during the
NRC’s annual reviews of the surety amount. As
previously explained, however, the NRC did not shirk
its responsibility. While the NRC regulations do
provide for an annual review of the surety and the
possibility that the surety will need to be adjusted,
see 10 C.F.R. Part 40, Appendix A, Criterion 9, the
NRC made a definitive and reasoned selection of nine
pore volumes at the outset of this project as the
estimated necessary restoration effort that HRI must
fund. The graduated nature of the project the NRC
App AS
approved, however, represents a reasoned way to
address the unknowns at play in this case
4. Whether the NRC denied Petition-
ers the right to an administrative
hearing on HRI’s ability to restore
the water quality in the other three
mining sites
The AEA provides that, “lilnm any proceeding
under this chapter, for the granting, suspending,
revoking, or amending of any license ... the Commis
sion shall grant a hearing upon the request of any
person whose interest may be affected by the proceed
ing.” 42 U.S.C. § 2239(a)(1)(A). Petitioners requested
such a hearing, and the NRC conducted one. Petition
ers do not challenge the adequacy of that hearing
Instead, they complain that there will be a number of
determinations about HRI’s project that will be made
in the future, and yet Petitioners will not at that time
have the opportunity for another hearing on those
issues. For example, the exact groundwater restora
tion standards cannot be determined until HRI drills
its wells in Section 8. And restoration and surety
requirements for the other three mining sites will not
be determined until HRI initially demonstrates it:
ability to restore the groundwater at Section &
The NRC determined, however, that Petitioner
had a fair opportunity to challenge the 9 pore
volume estimate for Section &, which was
based upon the available information to date
App 54
The fact that data from the restoration
demonstration project will be reviewed for
confirmation of the 9 pore volume estimate
does not obviate the fact that a meaningful
hearing has been provided for the adjudica
tion of the 9 pore volume estimate
In re Hydro Res., Inc., 60 N.R.C. 581, 598 (2004). That
determination was not arbitrary, capricious, an abuse
of discretion or otherwise unlawful. The NRC conducted
a hearing, after which it definitively determined that at
this time a nine-pore-volume restoration effort: would
he necessary.
The NRC further noted that, if HRI or the
NRC requested to amend the license and/or HRs
surety, Petitioners will, at that time, have an oppor
tunity to request another hearing. See 42 U.S.C
§ 2239(ay 1A) (“In any proceeding under this chap
baie for the pranting, revoking, or amending of any
license ... the Commission shall grant a hearing
upon the request of any person whose interest may be
affected by the proceeding.”) (emphasis added). If, on
the other hand, the NRC decides it does not need to
amend HRI’s license and/or surety, Petitioners them
selves can petition to amend HRI’s license. See 10
C.FLR. § 2.206(a) (stating that “laljny person may
file a request to institute a proceeding pursuant to
§ 2.202 to modify, suspend, or revoke a license, or for
any other action as may be proper”). See generally
Ila. Power & Light Co. v. Lorvon, 470 U.S. 729, 731,
105 S. Ct. 1598, 84 L. Ed. 2d 645 (1985)
App. 55
Petitioners argue that it is unlikely that the
relevant NRC Director will exercise its discretion, see
Ohio ex rel. Celebrezze v. NRC, 868 F.2d 810, 814-15
(6th Cir. 1989), to grant them a hearing under
§ 2.206. See Eddleman v. NRC, 825 F.2d 46, 48 (4th
Cir. 1987) (noting there is no mght to a hearing under
10 C.F.R. § 2.206). But they are entitled to request a
hearing. And if an NRC Director wrongly denies them
a hearing, although there is no further administra-
tive review available, see 10 C.F.R. § 2.206(c)(2),
Petitioners may be able to seek judicial review of that
determination. See Lorion, 470 U.S. at 740-41, 746;
see also Kelley v. Selin, 42 F.3d 1501, 1515 (6th Cir.
1995) (citing Bellotti v. United States Nuclear Regula-
tory Comm'n, 725 F.2d 1380, 1383, 233 U.S. App.
D.C. 274 (D.C. Cir. 1983)) (noting NRC may not deny
arbitrarily a petition seeking a hearing under 10
C.F.R. § 2.206); Massachusetts v. United States Nu-
clear Regulatory Comm’n, 878 F.2d 1516, 1522, 1525
(lst Cir. 1989) (reviewing to determine whether
agency “inexcusably default{ed] on its fundamental
responsibility to protect the public safety”). But see
Riverkeeper, Inc. v. Collins, 359 F.3d 156, 164 (2d Cir.
2004) (holding that NRC’s denial of § 2.206(a) petition
for a hearing was not reviewable because it was left
to the agency’s total and unreviewable discretion);
Nuclear Info. Res. Serv. v. Nuclear Regulatory
Comm’n, 969 F.2d 1169, 1178, 297 U.S. App. D.C. 169
(D.C. Cir. 1992) (noting the same); Arnow v. United
States Nuclear Regulatory Comm’n, 868 F.2d 223,
235-36 (7th Cir. 1989) (same).
App. 56
For these reasons, the NRC does not appear to
have deprived Petitioners of their right to a hearing.
B. Whether the NRC violated NEPA by
failing to consider adequately the im-
pact HRI’s mining might have if HRI
is unable to restore the groundwater
quality at Section 8
Petitioners contend that the NRC violated NEPA
by not properly considering the cumulative environ-
mental impacts on Section 8 that might result if HRI
is unable to restore the groundwater quality.” As
previously mentioned, NEPA requires the NRC to
consider the potential consequences of its proposed
action by taking a “hard look” at those consequences.
See Russell, 518 F.3d at 820-21; Krueger, 513 F.3d at
1179. This court “will not set aside an agency decision
unless it is ‘arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.’”
Russell, 518 F.3d at 823 (quoting 5 U.S.C.
§ 706(2)(A)).
The FEIS, in fact, does address the possibility
that HRI will be unable to restore fully the ground-
water at Section 8.
“ The NRC argues that Petitioners failed to preserve this
issue before the agency. We need not address this waiver
argument because, in any event, the NRC has complied with
NEPA.
7
App. &
The potential groundwater impacts of ISL
mining are related to the consumption of
groundwater (i.e., water is pumped from the
aquifer but not returned to it) and short- and
long-term changes to groundwater quality
(i.e., the chemistry of the water). Perhaps the
most significant environmental impact that
can occur as a result of ISL mining is the
degradation of water quality in the ore-
bearing aquifer.
(Jt. App. at 254.) Further, the FEIS recognized that
“(llocal groundwater quality in the Westwater Can-
yon sandstone within the proposed mining units
would deteriorate during HRI’s proposed project.”
(/d.) In particular, during mining, “the concentrations
of most of the naturally occurring dissolved constitu-
ents will be appreciably higher than their concentra-
tions in the original groundwater.” (Ud.) “The total
volume of groundwater tnat would be chemically
affected by ISL mining is estimated to be 3.3 million
m<3> (2671 acre-ft.).” dd. at 287.)
In addition, the FEIS recognized the dangers
posed by possible excursions — “unanticipated releas-
es of mining solutions that move beyond the ‘well
field area’” — occurring during the mining process.
(Id. at 254.) Specifically, the FEIS noted that “signifi-
cant adverse effects to groundwater quality would
result if an excursion (either horizontal or vertical)
occurs or if, after routine mining, water quality is not
restored.” (/d. at 280.)
App. 58
Not only did the FEIS recognize these possibili-
ties, the FEIS expressly explored ways in which the
groundwater contamination could be contained and
eventually remediated.
To preserve the community’s use of the
Westwater Canyon aquifer as a drinking wa-
ter source, NRC staff would require several
mitigation measures of HRI.... Generally,
the measures include additional characteri-
zation, testing, and bonding above that
proposed by HRI, for groundwater restora-
tion. A groundwater restoration demonstra-
tion would be required at Church Rock
before lixiviant could be injected at Unit t or
Crownpoint.
(Id.) The FEIS discussed monitoring the groundwater
contamination during ISL mining, as well as the
methods and timing of HRI’s efforts to restore the
groundwater quality after its mining operations
cease. And the FEIS addressed the primary aid
secondary restoration goals which were eventually
included in HRI’s license. Further, the FEIS noted
that, if HRI could not meet even the secondary resto-
ration goals required of it, HRI “would have to make
a demonstration to NRC that leaving the parameter
at a higher concentration would not be a threat to
public health and safety and that, on a parameter by
parameter basis, water would not be significantly
degradeu.” (/d. at 256.)
In addressing all of these issues, the FEIS
acknowledged that “[sluccessful restoration of a
App. 59
production-scale ISL well field has not previously
occurred. Further, site-specific tests conducted by
HRI have not demonstrated that the proposed resto-
ration standards can be achieved at a production
scale.” (Ud. at 280.) Nevertheless, the FEIS ultimate-
ly determined that HRI would be able eventually to
meet the required restoration goals. It did so based
upon a detailed analysis of the test results from this
and other projects offered by HRI, discussed above.”
For these reasons, we conclude that the NRC
took the “hard look” NEPA requires regarding
groundwater restoration at Section 8. See Krueger,
513 F.3d at 1178 (quotation omitted); cf. Richmond,
483 F.3d at 1140 (noting NEPA does not prohibit
agency from approving project with negative cumula-
tive effects, so long as agency considered those effects).
Therefore, we cannot say that the NRC’s decision to
issue HRI’s license was arbitrary, capricious, an
abuse of discretion or otherwise contrary to law.
” There is evidence in the record that “after the FEIS was
published[,] ... groundwater was successfully restored by the
State of Wyoming at the Bison Basin ISL mine site.” (Jt. App. at
477 n.7.)
* On review, Petitioners fault the NRC for rejecting
Petitioners’ NEPA claim pertaining to the groundwater restor’
tion at Section 8. In particular, Petitioners complain that NRC
summarily upheld the NRC’s compliance with NEPA because
the agency had already rejected their arguments that HRI’s
license, as it addressed groundwater restoration, violated AEA.
Most of Petitioners’ arguments challenging HRI’s ability to
restore groundwater, however, are the same, under both the
AEA and NEPA. And the NRC addressed those at length.
App. 60
IV. Conclusion
For all of the foregoing reasons, we DENY the
petition for review and upho!d the NRC’s licensing
decision in all respects.
DISSENT BY: LUCERO
DISSENT
LUCERO, J., dissenting:
Because the majority’s decision in this case will
unnecessarily and _ unjustifiably compromise the
health and safety of the people who currently live
within and immediately downwind from Section 17, I
must respectfully dissent. For thirty years, the Unit-
ed Nuclear Corporation (“UNC”) mined Section 17.
When it abandoned the mine, it failed to undertake a
basic responsibility: cleaning up after itself. UNC left
behind mining spoil that continuously emits gamma
radiation and radon. Now, the Nuclear Regulatory
Commission (“NRC”) has granted a license to Hydro
Resources, Inc. (“HRI”) to mine the same property.
HRI plans to mine the site, which will result in total
radiation levels nine to fifteen times the permitted
regulatory limit.
Petitioners in this case include members of three
families that live within or near Section 17 and Eastern
Navajo Dine Against Uranium Mining, a Navajo com-
munity organization representing members who reside
App. 61
primarily in Church Rock and Crownpoint, New
Mexico. These petitioners should be able to rely on
the NRC to properly interpret statutes and agency
regulations designed to protect the public’s health
and safety. Instead, the NRC has abandoned its
statutory commitment to refrain from issuing licenses
if doing so “would be inimical to ... the health and
safety of the public,” 42 U.S.C. § 2099, and has ren-
dered this community vulnerable to the ill effects of
dangerous radiation.
My respected colleagues compound the NRC’s
error by failing to adequately review the agency’s
action. The NRC issued HRI’s license at Section 17
using an interpretation of 10 C.F.R. 1 § 20.1301(a)(1)
that 1s inconsistent with the text of the regulation.
We should therefore set aside the NRC’s decision and
remand to the agency for decisionmaking consistent
with the proper interpretation of the rule — an inter-
pretation that is true to the regulation and that
adequately protects the interests of the public and the
petitioners in this case. Because the majority’s deci-
sion compounds past injustice by committing legal
error, I respectfully dissent.
I
In affirming the NRC’s grant of a mining license
to HRI, the majority erroneously concludes that
we should defer to the NRC’s interpretation of
§ 20.1301(a)(1). (Majority Op. 14.) The majority notes
that when we review an agency’s interpretation of
App. 62
its own regulations under the Administrative Proce-
dure Act (“APA”), 5 U.S.C. § 551 et seg., we must give
the agency’s interpretation “controlling weight unless
it is plainly erroneous or inconsistent with the regu-
lation.” (Majority Op. 9) (quoting Udall v. Tallman,
380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L. Ed. 2d 616
(1965)). In this case, the NRC’s interpretation of
§ 20.1301(a)(1) is “inconsistent with the regulation”
and thus warrants no deference. Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381,
129 L. Ed. 2d 405 (19:94).
Section 20.1301(aX1) requires that a licensee
conduct operations such that:
[t]he total effective dose equivalent to indi-
vidual members of the public from the li-
censed operation does not exceed 0.1 rem (1
mSv) in a year, exclusive of the dose contri-
butions from background radiation, from any
medical administration the individual! has
received, from exposure to individuals ad-
ministered radioactive material and released
under § 35.75, from voluntary participation
in medical research programs, and from the
licensee’s disposal of radioactive material in-
to sanitary sewerage in accordance with
§ 20.2003.
1 § 20.1301(a)(1).
In granting the license in this case, the NRC
interpreted the cap on the total effective dose equiv-
alent (“TEDE”) from the “licensed operation” to limit
App. 63
only the radiation “directly linked to licensed activi-
ty.” In re Hydro Res., Inc., 63 N.R.C. 510, 516 (2006).
The majority concludes that this interpretation is not
“plainly erroneous” because “(t]he 1 [sic] clear lan-
guage of this regulation supports the NRC’s decision
to focus only on the licensed operation.” (Majority Op.
14.) This conclusion, however, seems merely to beg
the question: the meaning of the phrase “licensed
operation” as used in § 20.1301(a)(1).
The NRC’s interpretation of “licensed operation”
is inconsistent with the regulation because it renders
superfluous the exclusion of “background radiation”
and radiation from other specified sources in
§ 20.1003. It is a well-established principle of statuto-
ry and regulatory interpretation that a provision
should be read such that no term is rendered nugato-
ry. See Time Warner Ent. Co., L.P. v. Everest Midwest
Licensee, L.L.C., 381 F.3d 1039, 1050 (10th Cir. 2004)
(“As with statutory construction, in interpreting
regulations; 6937; 6937, [sic] we strive to construe the
text so that all of its provisions are given effect and
no part is rendered superfluous.”). The NRC inter-
prets “licensed operation” to refer only to the licen-
see’s activity. However, § 20.130l(a) expressly
excludes from the radiation limit on a “licensed
operation” any “background radiation,” along with
radiation from any “medical administration the
individual has received, from exposure to individuals
administered radioactive material ... , from volun-
tary participation in medical research programs, and
App. 64
from the licensee’s disposal of radioactive material
into sanitary sewerage.”
By focusing only on the licensee’s activities, the
NRC’s interpretation of “licensed operation” renders
these specific exclusions unnecessary: There is no
reason to expressly exclude radiation from medical
research programs if “licensed operation,” by defini-
tion, refers only to activity of the licensee. The major-
ity apparently accepts the NRC’s explanation that not
every licensee is a mining company and “this lan-
guage clarifies that the NRC’s regulations specifically
addressing sanitary sewers and medical administra-
tion of radiation continue to govern those other
matters.” (Majority Op. 15.)
The regulation does no such thing. It does not
refer to these other sets of regulations or state that
they apply notwithstanding § 20.1301(a). Moreover,
the NRC itself has admitted the superfluity of the
relevant language under its interpretation:
[Slimply interpreting the phrase ‘from the li-
censed operation’ as limiting the scope of
TEDE arguably renders unnecessary other
provisions in the TEDE rule expressly ex-
cluding doses resulting from medical admin-
istration and disposal of radioactive material
in sanitary sewerage.
In re Hydro Res., 63 NRC at 516.
Because the NRC’s asserted interpretation of
§ 20.1801(a)(1) violates a fundamental rule of construc-
tion, and because the NRC granted HRI a license in
App. 65
derogation of its duty to protect public health and
safety, I would reject its definition of “licensed opera-
tion.”
Il
Although the majority does not reach the issue, |
would also hold that radioactive emissions from
existing mining spoil at Section 17 should not be
excluded from the TEDE limit as “background radia-
tion.” Section 20.1301(a) excludes radiation doses due
to “background radiation” from the limit on TEDE.
The regulations define “background radiation” to
include “naturally occurring radioactive material”
(“NORM”). § 20.1003. Moreover, neither the Atomic
Energy Act nor NRC regulations define NORM. The
NRC concluded that NORM includes “technologically
enhanced naturally occurring radioactive material”
(“TENORM”), or “radioactive materials that, as a
result of human activities, are no longer in their
natural state,” Jn re Hydro Res., Inc., 63 N.R.C. 41, 67
(2006), including mining spoil. /n re Hydro Res., Inc.,
63 N.R.C. at 518 (2006).
The NRC’s interpretation of the regulation is yet
again unreasonable. When a term is not defined by
the relevant statute or regulation, we interpret it
using its “ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct.
311, 62 L. Ed. 2d 199 (1979) (citation omitted). “Natu-
rally” means “according to or by the operation of the
laws of nature.” Webster’s 3d New Int'l Dictionary
App. 66
1507 (1993). Thus, “naturally occurring radioactive
material” is radioactive material that occurs accord-
ing to or by the operation of the laws of nature. It
does not include radioactive materials that are no
longer in their natural state as a result of human
activities.
The NRC asserts that that “technical terms of art
should be interpreted by reference to the trade or
industry to which they apply.” Although an accurate
statement of the law, see La. Pub. Serv. Comm’n v.
FCC, 476 U.S. 355, 372, 106 S. Ct. 1890, 90 L. Ed. 2d
369 (1986), this argument is unavailing. The NRC
failed to provide any authority — even one of its own
past decisions — indicating that NORM is, in fact, a
technical term of art with the meaning it now asserts.
In contrast, petitioners cite a number of authorities
indicating that TENORM was not understood to be a
subset of NORM when the latest version of NRC rules
was promulgated in 1991. “Background radiation”
does not include radiation caused by existing mining
spoil at Section 17 and thus should not be considered
radiation from a licensed operation.
Ill
Because the NRC granted HRIl’s license using
interpretations of its regulations that are inconsistent
with the regulations themselves, I would set aside its
decision and remand for the agency to reconsider its
licensure of HRI. Petitioners have submitted substan-
tial evidence indicating that the total TEDE at
App. 67
Section 17 already exceeds the 0.1 rem permitted by
§ 20.1301. Further, they have presented evidence
that HRI’s mining will ultimately produce radiation
many times the permitted limit. Using the correct
interpretation of § 20.1301, the NRC would likely
revoke HRI’s license.
Families currently live within and just downwind
from Section 17. The NKC’s erroneous decision and
the majority’s endorsement of that decision will
expose these families to levels of radiation beyond
those deemed safe by the NRC’s own regulations,
jeopardizing their health and safety. Accordingly, I
dissent.
App. 68
(‘11-06-29
Cite as 64 N.R.C. 417 (2006)
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Dale Ek. Klein, Chairman
Edward McGaffipan, Jr.
Jeffrey S. Merrifield
Gregory B. Jaczko
Peter B. Lyons
IN THE MATTER OF HYDRO No. 40-8968-ML
RESOURCES, INC,
(P.O. Box 777, Crownpoint, December 14, 2006
New Mexico 87313)
MEMORANDUM AND ORDER
In this decision, we consider a petition for review
filed jointly by Intervenors Eastern Navajo Dine
Against Uranium Mining (“ENDAUM”), Southwest
Research and Information Center (“SRIC”"), Grace
Sam, and Marilyn Morris. Intervenors seek review of
LBP-06-19, the Presiding Officer’s Final Partial
Initial Decision in this lengthy materials license
proceeding. The Presiding Officer’s decision addresses
the adequacy of the Final Environmental Impact
Statement’s (“FIEIS”) analysis for the Ilydro Re-
sources Inc, (“HRI”) Crownpoint Uranium Solution
Mining Project. The decision focuses on the EIS
insofar as it relates to the Church Rock Section 17,
App. 69
Unit 1, and Crownpoint sites' HRI and the NRC Staff
oppose Intervenors’ petition for review. The Commis-
sion carefully has considered the Intervenors’ peti-
tion, but finds that it does not identify any “clearly
erroneous” factual finding, significant legal error, or
any other reason warranting plenary review. For the
reasons outlined below, we deny the petition.
I. FEIS SUPPLEMENT
The Intervenors argue that the NRC must sup-
plement the FEIS to address a “change in the legal
status of HRI’s proposed mining project.” Specifically,
‘ The HRI license, issued by the NRC in 1998, authorizes
HRI to conduct in situ leach uranium mining at four sites in
McKinley County, New Mexico: Church Rock Section 8, Church
Rock Section 17, Unit 1, and Crownpoint. Earlier decisions by
the Presiding Officer and Commission rejected Intervenor
arguments on the adequacy of the FEIS analysis as it relates to
the Church Rock Section 8 site. See LBP-99-30, 50 NRC 77
(1999), affd, CLI-01-4, 53 NRC 31 (2001). The first portion of
this proceeding (“Phase I”) focused on Church Rock Section 8.
Issues specific to the other three mining sites — Church Rock
Section 17, Unit 1, and Crownpoint — have been litigated in this
second portion (“Phase II”) of the proceeding.
* See 10 C.E.R. § 2.786(b)(4) (2004). The NRC has amended
its adjudicatory procedural rules in 10 C.F.R. Part 2. See Final
Rule: “Changes to Adjudicatory Process,” 69 Fed. Reg. 2182 (Jan.
14, 2004). For cases docketed prior to February 13, 2004 (such as
this case), the previous procedural rules, including tie former 10
C.F.R. § 2.786, continue to apply. A substantially equivalent new
rule now appears in 10 C.F-.R. § 2.341(b)(4).
* Intervenors’ Petition for Review of LBP-06-19 (Sept. 11,
2006) (“Petition”) at 3.
App. 70
they state that the Diné Natural Resources Protec-
tion Act (““DNRPA”), passed by the Navajo Nation
Council in 2005, “definitively prohibits uranium
mining or processing within Navajo Indian Country,”
and that Section 17, Unit 1, and part of the
Crownpoint site are “Indian Country.” They therefore
claim that “HRI is prohibited by law from mining on
at least two of its four proposed sites,” and that an
FEIS supplement is necessary because the DNRPA is
a “significant change in the legal requirements affect-
ing the HRI mine.” According to Intervenors, by
rejecting their argument on the need for an EIS
supplement, the Presiding Officer violated 10 C.F-R.
§ 51.71(d).°
But as the Commission explained earlier in this
proceeding, not all new information that might
emerge following issuance of an environmental im-
pact statement requires a supplement to the impacts
analysis. The new information must present a “‘seri-
ously different picture of the environmental impact
i
* Td.
* Intervenors’ petition does not explain their reference to
section 51.71 (d), an NRC regulation on the contents of a draft
envirenmental impact statement. We assume they mean to
reference the provision’s statement that “[d]ue consideration will
be given to compliance with ... requirements that have been
imposed by Federal, State, regional, and local agencies having
responsibility for environmental protection. ...” The regulation
emphasizes that “irrespective” of any such requirements, the
NRC will consider the environmental impacts of the proposed
action.
App. 71
of the proposed project from what was previously
envisioned.’”’ Here, the Presiding Officer found that
the Intervenors “failfed] to provide evidence or argu-
ment to suggest that the DNRPA calls into question
any of the environmental conclusions in the FEIS.”
Concluding that there was no “indication that the
DNRPA will result in a significantly new potential
impact not considered in the FEIS,” the Presiding
Officer rejected the Intervenors’ argument on the
need for an FEIS supplement.”
The Presiding Officer did note that HRI must
comply with all applicable legal requirements, includ-
ing obtaining any necessary underground injection
control permit and aquifer exemption. He therefore
stated that resolution of “whether the sites on which
HRI proposes to conduct NRC-licensed mining opera-
tions are in ‘Indian Country’.... may affect HRI’s
ability to mine,” just as whether HRI can obtain
necessary permits or exemptions would affect its
ability to mine” Pursuant to license condition, HRI
must “obtain all necessary permits and licenses from
the appropriate regulatory authorities” prior to
injecting lixiviant.”
” Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM
87174), CLI-04-39, 60 NRC 657, 659 (2004) (quoting Sierra Club
v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)).
* LBP-06-19, 64 NRC 53, 104 (2006).
* Id.
'° Id. at 104 n.40.
'' See License Condition 9.14.
App. 72
To the extent that the DNRPA presents another
“legal requirement [|] affecting the HRI mine,” the
Presiding Officer’s decision itself effectively supple-
ments the FEIS, thereby updating the FEIS descrip-
tion of the Navajo Nation’s position on uranium
mining activities and making clear the DNRPA’s
enactment and HRI’s need “to ensure its operations
do not run afoul” of the DNRPA.” However, it is
beyond the NRC’s authority or the scope of this
proceeding to resolve jurisdictional questions that
ultimately may determine whether HRI is able to
proceed with the uranium mining project. While the
NRC recognizes the tribal sovereignty of the Navajo
Nation, it is not the function of the EIS process to
resolve existing or potential jurisdictional disputes.”
‘* LBP-06-19, 64 NRC at 104 n.40 (quoting LPP-06-1, 63
NRC 41, 71 n.29 (2006)). At the time the FEIS was issued, there
was an ongoing moratorium on uranium mining activity on
Navajo lands. The Navajo Nation issued the moratorium in
1983, and renewed it by tribal executive order in 1992. See
NUREG-1508, “Final Environmental Impact Statement to
Construct and Operate the Crownpoint Uranium Solution
Mining Project, Crownpoint, New Mexico” (February 1997)
(“FEIS”) at 3-87. The FEIS nonetheless noted that many indi-
viduals (“allottees”) had agreed to lease their land to HRI, and
that a conflict existed between the Navajo Nation moratorium
on uranium mining and the “individuals’ decisions about their
land.” Jd. at 4-120. In light of unresolved conflicts over applica-
bility of the moratorium to allotted lands, the FEIS describes
that the NRC chose to proceed “with the EJS process and with a
Safety Evaluation Report” to determine the potential impacts of
HRs proposed project and alternatives. Id.; see also id. at A-54.
See, e.g., FEIS at 4-114 to 4-115 (regarding “competing
jurisdictional claims” over “which sovereign — the Navajo Nation
(Continued on following page)
App. 73
The FEIS notes expressly that resolution of which
proposed project areas are Indian Country and relat-
ed jurisdictional questions “may ultimately be deter-
mined through litigation” outside of the EIS process.”
Simply put, if HRI cannot satisfy applicable Federal,
State, and Navajo Nation requirements, it cannot go
forward with the project.
Ultimately, at issue is whether the DNRPA
significantly alters the FEIS’s findings on environ-
mental impacts. In their petition for review,
Intervenors simply call “the effects of the DNRPA on
the FEIS ... major and obvious,” and then go on to
suggest that because of the DNRPA, the FEIS re-
quires a new cost-benefit analysis, a new analysis of
project “alternatives,” and a new analysis of the
environmental effects of liquid waste disposal)"
As a threshold matter, we note that these argu-
ments were not part of the Intervenors’ original
NEPA presentation to the Presiding Officer, and are
therefore impermissibly late).'’ The Commission
or the State of New Mexico — can administer the utilization of
water rights”; see also, e.g., td. at 1-5 (“there are disputes over
the jurisdictional status of some of the project area, and similar
conflicts may arise regarding other project areas”), 4-115, A-54 to
A-55.
See id. at 4-101; see also id. at 5-4, A-54 to A-56.
'* Petition at 3 n.3.
16 Id
' See Intervenors ENDAUM’s, SRIC’s, Grace Sam’s and
Marilyn Morris's Written Presentation in Opposition to HRI's
(Continued on following page)
App. 74
deems waived arguments or legal theories not raised
before a Presiding Officer or Licensing Board,” or
only introduced in a reply filing which opposing
parties did not have the opportunity to address.” In
any event, Intervenors’ broad-brushed calls for “revis-
itling|]” or “reevaluatling|” the FEIS cost-benefit
analysis, analysis of alternatives, and liquid waste
disposal analysis do not indicate how the DNRPA
significantly alters the FEIS’s findings and conclu-
SIONS.
Intervenors’ petition for review suggests that the
HRI project is “effectively halved” because “at least
two of [HRI’s] proposed sites” are Indian Country
Application for a Materials License with Respect to NEPA Issues
for Church Rock Section 17, Unit 1, and Crownpoint (June 24,
2005) at 50-51.
'* See Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho,
NM 87174), CLI-04-33, 60 NRC 581, 592 (2004).
" See Louisiana Energy Services, L.P. (National Enrichment
Facility), CLI-04-25, 60 NRC 223, 225 (2004) (“lijn Commission
practice, and in litigation practice generally, new arguments
may not be raised for the first time in a reply brief”). In replying
to the NRC Staff and HRI, Intervenors introduced a claim that
the FEIS cost-benefit analysis requires revision because the
Navajo Nation would not receive tax or other benefits from the
HRI project. See “Reply to HRI's and the NRC Staff’s Responses
in Opposition to Intervenors’ Written Presentation with Respect
to NEPA Issues for Church Rock Section 17, Unit 1, and
Crownpoint” (Aug. 19, 2005) at 21. Intervenors’ arguments on a
need for new analyses of alternatives and liquid waste disposal
impacts appear to be entirely new claims raised on appeal! before
the Commission.
*° See Petition at 3.
App. 75
and cannot be mined under the DNRPA. Thus, they
claim that the cost-benefit analysis must be redone.
But Intervenors have had the opportunity to litigate
the adequacy of the FEIS’s analysis of potential
environmental impacts at all four proposed sites:
Church Rock Section 8, Church Rock Section 17, Unit
1, and Crownpoint. In the event that HRI proceeds
with a much smaller project with two fewer sites, the
estimated environmental impacts from mining at the
two eliminated sites would not occur. Potential pro-
ject benefits (e.g., amount of domestically produced
uranium to offset imports, new local jobs, and new
additional county and state tax revenues) also would
be reduced correspondingly.”” It is not apparent,
however, why the overall conclusions of the cost-
benefit analysis would significantly change, and the
Intervenors do not suggest how they would.” Of
*" See, e.g., FEIS at 5-1 to 5-7 (cost-benefit analysis), 4-97 to
4-105 (socioeconomic impacts).
* See, e.g., LBP-06-19, 64 NRC at 92 (summarizing general
cost-benefit conclusions). Nor do we find persuasive Intervenors’
new claims that the DNRPA requires additional FEIS analysis
of project “alternatives” and of liquid waste disposal options. The
FEIS provides an extensive analysis of alternatives and their
potential impacts, examining a variety of alternative sites for
mining (including the options of only mining at one or two of the
proposed sites), alternative sites for yellowcake drying and
packaging, and various liquid waste disposal options. See, e.g.,
FEIS at 2-31, 4-13, 4-58, 4-60, 4-65, 4-80 to 4-81, 4-83, 4-86 to 4-
88, 4-94, 4-110 to 4-111. In light of these comprehensive anal-
yses, the Intervenors fail to identify what other “range of
alternatives” must be considered. An agency need not “under-
take a ‘separate analysis of alternatives which are not signifi-
(Continued on following page)
App. 76
course, if in the end HRI cannot proceed or chooses
not to proceed with the proposed project because of
the DNRPA, there would be no project impacts or
benefits at all. Such a result would be equivalent to
the “no action” alternative discussed in the FEIS.
il. CUMULATIVE IMPACTS TO AIR QUALITY
AND TO GROUNDWATER RESOURCES
Cumulative impacts are “the impact on the
environment which results from the incremental
impact of the [proposed] action, when added to other
past, present, and reasonably foreseeable future
actions.” Thus, a cumulative impacts analysis will
consider whether the incremental impacts from an
action will combine with preexisting environmental
impacts in a “fashion that will enhance the signifi-
cance of their individual effects.” Intervenors argue
that the Presiding Officer erred when he found
adequate the FEIS’s cumulative impacts analyses for
radiological air impacts and groundwater impacts.
The Presiding Officer’s cumulative impacts
findings rest. heavily upon his analysis of technical
cantly distinguishable from alternatives [already] considered, or
which have substantially similar consequences.’” Westlands
Water District v. United States Department of the Interior, 376
F.3d 853, 871-72 (9th Cir. 2004), quoting Headwaters, Inc. v.
Bureau of Land Management, 914 F.2d 1174 (9th Cir. 1990).
“ 40 C.F.R. § 1508.7 (emphasis added).
* Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM
87174), CLI-01-4, 53 NRC 31, 57 (2001).
App. 77
and fact-intensive arguments presented by the par-
ties. On such fact-specific technical issues, where a
Presiding Officer has reviewed an “extensive record
in detail, with the assistance of a technical advisor,”
the Commission is disinclined to upset the Presiding
Officer’s findings and conclusions, particularly where
the submissions of experts have been weighed.”
While the Commission on occasion may choose to
make its own de novo findings of fact, we generally do
not exercise that authority where a Presiding Officer
or Licensing Board has issued “‘a plausible decision
that rests on carefully rendered findings of fact.’””
Intervenors’ petition does not identify any clear error
or other reason warranting review of the Presiding
Officer’s findings on cumulative air impacts or cumu-
lative groundwater impacts, and we therefore decline
to review them. Below we provide additional brief
comment on the Intervenors’ claims.
A. Cumulative Air lmpacts
Intervenors argue that the FEIS evaluates only
the expected “incremental” airborne radiological
emissions expected from the HRI project, but not the
* Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New
Mexico 87313), CLI-06-1, 63 NRC 1, 2 (2006), quoting Hydro
Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-
00-12, 52 NRC 1, 3 (20006).
* HRI CLI-06-1, 63 NRC at 2, quoting Private Fuel Storage,
L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-8,
58 NRC 11, 25-26 (2003).
App. 78
“combined impacts of airborne radiological emissions
from HRI’s operation and residues of past mining.””
The Presiding Officer rejected this argument, explain-
ing that the incremental increase in radiological air
impacts due to the HRI project is so “de minimis” or
“negligible” that it would not significantly enhance
already existing environmental effects from back-
ground airborne radiation.” Intervenors provide us
with no reason to question that conclusion. As we
stated in Phase I of this proceeding regarding ex-
pected environmental impacts at Church Rock Sec-
tion 8, “Intervenors understandably ... focus upon
the adverse effects of former mining, but they have
not explained why [an] additional, and expected to be
negligible, radiation impact ... would have any
public health and safety significance.”
Intervenors also argue that the FEIS inappropri-
ately averaged background radiation levels for
Church Rock and Crownpoint, when Church Rock has
significantly higher radiation levels. But the Presid-
ing Officer acknowledged “the existence of discrete
sources of higher background radiation in Church
Rock.”” Indeed, he noted that background doses as
high as 1000 mrem/year are not unusual in the
Petition at 5 (emphasis added).
* See LBP-06-19, 64 NRC at 71-72, 74, 80.
* CLI-01-4, 53 NRC at 69.
* LBP-06-19, 64 NRC at 70; see also id. at 70-71.
nm
ao
App. 79
United States.*’ He concluded, however, that the
actual “typical background radiation level for the
general public at Church Rock is closer to the 225
mrem/year estimated in the FEIS, rather than the
1000 mrem/year alleged by the Intervenors.””
Intervenors’ petition does not suggest otherwise.
B. Cumulative Groundwater Impacts
Intervenors argue that the FEIS fails to take a
hard look at the potential for groundwater contami-
nants to migrate from HRI’s proposed mine. Their
particular concern is the presence of underground
mine workings (from a previous underground mining
operation) located in the southern end of the Church
Rock site, and the potential for these mine workings
to form preferential pathways for lixiviant (mining
solutions) to move away from the well field. Such
pathways could Jead to “excursions,” which are “un-
anticipated releases of mining solutions that move
beyond the well field area.””
Specifically, Intervenors argue that the Presiding
Officer erred by “accepting the FEIS’s unexplained
* See id. at 70; see also LBP-06-1, 63 NRC at 61 n.16
(Phase II Radiolegical Air Emissions Challenges), aff’d, CLI1-06-
14, 63 NRC 510 (2006).
* LBP-06-19, 64 NRC at 71 (emphasis added).
* FEIS at 4-15 (internal quotation omitted).
App. 80
and unjustified failure to model the acknowledged
potential for excursions in the old mine workings.”
They claim that by finding the FEIS discussion of the
mine workings adequate, the Presiding Officer “vio-
lated” 10 C.F.R. § 51.71, an NRC regulation which
calls for environmental impacts to be quantified to
the “fullest extent practicable.”” They further claim
that the Presiding Officer “lacked any rational basis”
for assuming that HRI is capable of correcting an
excursion if one were detected.”
The FEIS discusses the potential for horizontal
and vertical excursions during HRI’s proposed mining
operations extensively, particularly focusing on the
underground mine workings in Church Rock.” Con-
trary to Intervenors’ claims, we see no indication that
the Presiding Officer relied upon “unexplained and
unjustified” discussion in the FEIS, or that he lacked
any reasonable basis for concluding that the FEIS
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.