# Petition for Writ of Certiorari — Morris v. Nuclear Regulatory Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2484%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1045 ## 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 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 (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 provides adequate consideration of the old mine workings and the potential risks they pose to groundwater impacts.” “ Petition at 7. * Id. (quoting 10 C.F.R. §51.71). 36 Id " See FEIS at 4-54 to 4-56. *’ See LBP-06-19, 64 NRC at 76-78. We find unpersuasive Intervenors’ claim that the Presiding Officer lacked “any ration- al basis” to assume that an excursion can be corrected. In addressing potential vertical excursions, the FEIS states that it “should be possible” to mine in the Westwater Canyon aquifer (Continued on following page) App. 81 Referencing the FEIS, the Presiding Officer notes that there are established methods in in situ leach mining for detecting and correcting horizontal and vertical excursions, that HRI has a sensitive excur- sion monitoring program, and that HRI would employ premining testing and particular drilling methods to minimize the risk of excursions.” In the event of an excursion, HRI must follow procedures mandated by license condition, including notifying the NRC by telephone within 24 hours.’ If HRI cannot correct an excursion within 60 days, it must either terminate injection of lixiviant within the well field until aquifer cleanup is complete, or increase its surety amount to cover the full third-party cost of correcting and clean- ing up the excursion.” In short, the record amply supports the Presiding Officer’s finding that the FEIS “adequately considers without creating a vertical excursion, but notes that HRI has not actually “specifically demonstrated” how it would accomplish this. See FEIS at 4-56. Therefore, the FEIS does not exclude the possibility that there could be a vertical excursion. That HRI has not provided a specific “demonstration” of how it would mine in the Westwater Canyon without creating an excursion, however, does not by itself suggest that HRI would be incapable of correcting an excursion if one were detected. ” See LBP-06-19, 64 NRC at 77; see also FEIS at 4-16 to 4- 17. “ See License Condition 12.1; see also FEIS at 4-21 to 4-22. “ See License Condition 10.13; see also FEIS at 4-21 to 4- 22. App. 82 the cumulative impact of HRI’s proposed ISL mining operation on groundwater contamination vis a vis the old mine workings.” Intervenors have not shown the Presiding Officer’s fact-based findings to be unrea sonable.” fil, MITIGATION MEASURES FOR THE CROWNPOINT MUNICIPAL WATER WELLS The FEIS identifies potentially significant groundwater impacts associated with HRI’s proposed mining at the Crownpoint site.“ Under a conservative analysis, the NRC Staff found a potential risk that the local water supply at Crownpoint could be con- taminated by excessive amounts of uranium. There- fore, the Staff has imposed a license condition requiring HRI to move the town of Crownpoint’s “ LBP-06-19, 64 NRC at 78 Intervenors’ arguments on the underyround mine work- ings are not entirely clear. In one part of their argument they apparently challenge the Presiding Officer’s discussion of potential horizontal excursions, see Petition at 7 (quoting the Presiding Officer’s discussion of horizontal excursions at LBP- 06-19, slip op. at 23 [64 NRC at 77]), but then in another part of the argument go on to quote parts of the Presiding Officer's decision and FEIS that specifically address vertical excursions See id. (quoting LBP-06-19, slip op. at 24 [64 NRC at 78] and FEIS at 4-56). Regardless, their petition does not present any clear error or other reason for revisiting the Presiding Officer's fact-based evaluation of groundwater impacts “ See FEIS at 4-48 to 4-49, 4-113, 4-122 to 4-123, 5-7 App. 83 existing water supply wells and water delivery sys- tem prior to injecting any lixiviant at Crownpoint.” Specifically, HRI’s license requires it to replace the town of Crownpoint’s water supply wells, con- struct the necessary water pipeline, and provide funds so that the existing water supply systems of the Navajo Tribal Utility Authority (“NTUA”) and the Bureau of Indian Affairs (“BLA”) can be connected to the new wells. The license further requires that “Lajny new wells, pumps, pipelines, and other changes to the existing water supply systems ... shall be made such that the systems can continue to provide at least the same quantity of water as the existing systems.”*” Moreover, water quality at each individual well head must “not exceed the EPA’s primary and secondary drinking water standards.™’ To determine “the appropriate placement of the new wells,” HRI must “coordinate with the appropriate agencies and regulatory authorities,” including the BIA, the “ See License Condition 10.27; see also FEIS at 4-62, A-1 to A-2. ** License Condition 10.27(A). “ Id. Placement of new water wells and implementing details relating to the requirement that the new water supply systems provide “at least the same quantity of water as the existing systems” would implicate the jurisdiction of other agencies and regulatory authorities as indicated in License Condition 10.27. For example, local authorities may confront issues, such as planned water usage or population growth issues, relating to the sustainable yield of a different aquifer if one were chosen for a new water supply. App. 84 NTUA, the Navajo Nation Department of Water Development and Water Resources, and the Navajo Nation Environmental Protection Agency.” The Presiding Officer found that the FEIS ade- quately addresses mitigation measures for replacing the Crownpoint water supply wells.“ Intervenors challenge this ruling, arguing that the mitigation measures are “insufficiently discuss[ed]” and must be supported by “scientific studies and _ substantial evidence.”” In particular, they claim that while the replacement wells must provide the same quantity of water as existing wells and must meet specific drink- ing water standards, “this mitigation measure is not supported by any data as to whether there are other locations in or near Crownpoint that might meet these criteria, which regulatory agency, if any, will be responsible for well relocation or oversight of well relocation, whether existing water infrastructure or new infrastructure will be needed and whether building such infrastructure is even feasible.”” Intervenors, however, demand a level of detail not required by NEPA. The purpose of addressing possible mitigation measures in an FEIS is to ensure that the agency has taken a “hard look” at the potential environmental impacts of a proposed “ Id.; see also FEIS at 4-113. “ LBP-06-19, 64 NRC at 93-95. ” Petition at 8. *- Id. App. 85 action.” An EIS therefore must address mitigation measures “in sufficient detail to ensure that envi- ronmental consequences have been fairly evaluat- ed.” An EIS need not, however, contain “a complete mitigation plan,” or “a detailed explanation of specific measures which will be employed.”” Indeed, a mitiga- tion plan “‘need not be legally enforceable, funded or even in final form to comply with NEPA’s procedural requirements.’”” As long as the potential adverse impacts from a proposed action have been adequately disclosed, it is not improper for an EIS to describe “mitigating measures in general terms and relly] on general processes. .. .””’ 957 *° Westlands Water Dist., 376 F.3d at 872, citing Robertson uv. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989). * Robertson, 490 U.S. at 352. ae * Td. at 353. * Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000), quoting National Parks & Conservation Ass’n v. United States Department of Transportation, 222 F.3d 677, 681 n.4 (9th Cir. 2000). We find unpersuasive Intervenors’ argument that mitigation measures set forth in an E1S must be “supported by scientific studies.” See Petition at 8. The case cited by Intervenors for that proposition did not involve an EIS, but instead mitigation measures relied upon to avoid the need to prepare an EJS. See Wyoming Outdoor Council v. Corps of Engineers, 351 F. Supp. 2d 1232, 1250 (D. Wy. 2005). * Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969, 979 (9th Cir. 2006). Moreover, HRI will need to coordinate the placement of the new water wells with various specified authorities. Consequently, numerous details that will bear on potential well placement are simply not yet known, and (Continued on following page) App. 86 At bottom, Intervenors fear that HRI may be unable to meet the “criteria” specified in the license condition. But if HRI cannot meet the specified water quantity and quality and related requirements for the replacement water supply wells, it will not be able to begin mining at Crownpoint. In short, the mitigation measures set forth specific goals that are a condition that HRI must meet prior to injecting lixiviant at Crownpoint. IV. LAND USE IMPACTS AND MITIGATION MEASURES Intervenors argue that the Presiding Officer erred when he found adequate the FEIS discussion of potential land use impacts. They claim that the Presiding Officer ignored evidence they presented on the impacts that HRI’s mining project would have on the Navajo people who live and work in Church Rock Section 17, and that by “failing to examine the envi- ronmental impacts of HRI’s operation on the specific locale of Section 17, the Presiding Officer violated 40 C.F.R. § 1508.27.” They also argue that the may not be known until HRI has been able to survey potential locations for replacement wells. * Again, the Intervenors cite to a regulation without identifying their precise argument. Section 1508.27 sets forth the Council on Environmental Quality’s definition of the word “significantly” as used in the NEPA process to describe the significance of environmental impacts. It provides that the significance of an action must be analyzed in several contexts, including the “locality.” See 40 C.F.R. § 1508.27. App. 87 Presiding Officer ignored their evidence showing that the mitigation measures for land use impacts are inadequate. We find no indication that the Presiding Officer failed to address or “ignored” evidence that the Intervenors presented. Instead, he rejected their claims, agreeing instead with HRI and the NRC Staff in concluding that the FEIS adequately discusses the land use impacts. To be sure, HRI’s proposed mining project necessarily would cause adverse land use impacts at all of the proposed mining sites.” These include temporarily disrupting livestock grazing, which “‘would adversely affect Navajo who have grazing permits for the land and rely on livestock as an important economic resource.’”” The mining activities also would force the relocation of particular individuals or families that are Navajo “allottees” (owners of surface and mineral rights) or their ten- ants. But as the FEIS notes, the allottees were “vol- untary signatories” to leases negotiated by HRI. They were informed as a condition of the leases that there would be a need for relocation and access restrictions during HRI’s mining. Among those forced to relocate, however, there may be individuals who were not ** See FEIS at 92-96. * LBP-06-19, 64 NRC at 82 (quoting FEIS at 4-94). The FEIS notes that under the Federal General Mining Law of 1872, “mineral rights owners [HRI has secured mineral leases] can disrupt surface grazing permits in order to remove minerals.” See FEIS at 4-94. App. 88 actual signatories to a lease, but are living on allotted lands (e.g., as tenants). To help mitigate land use impacts, HRI is to compensate those individuals who hold livestock grazing permits that would be interrupted: HRI should compensate these permittees directly (for private lands) or indirectly through the relevant tribal [authority] (for tribal lands) or Federal agency (BIA for allottee lands). Staff recommend that the Navajo Nation negotiate compensation ar- rangements for lands where grazing permits are held in tribal trust, and that BIA negoti- ate compensation arrangements for lands where allottees have grazing permits.” In addition, HRI is to provide direct compensa- tion to any residents of allotted lands who were not signatories to leases, but are forced to relocate during project construction and operation.” These are measures “to help mitigate”™ impacts that understandably would bring hardship to the individuals affected. The FEIS does not purport to claim that the mitigation measures would relieve all difficulty. Intervenors claim that the Presiding Officer “violated NEPA by accepting the adequacy of mone- tary compensation and relocation as_ mitigation * FEIS at 4-95. * Id. ~ ff App. 89 measures.” Intervenors believe that “monetary compensation does not suffice,” and that it is unac- ceptable for any potentially affected individuals to have to relocate.”’ Whether there is any mitigation measure that they would find adequate is not appar- ent because they do not suggest one. But NEPA does not guarantee that federally approved projects will have no adverse impacts at all. Nor does it require an agency to select the most environmentally benign alternative. While the HRI FEIS might have said more about those who may be affected by HRI’s project, the Presiding Officer found that it sufficiently discusses potential impacts and mitigation measures. Intervenors provide us with no reason to revisit that conclusion.” V. CONCLUSION For the reasons given in this decision, we deny the Intervenors’ petition for review of LBP-06-19. * Petition at 9. ® See id. at 9-10. * Intervenors also claim the FEIS is inadequate because it does not specifically address “the logistical matters” involved with the relocations, including “how tribal’ members unwilling to be relocated will be treated.” See Petition at 8. But as we stressed previously, see supra pp. 426-27, mitigation measures need not include a complete plan with all details. The FEIS stresses that “it would not be possible to determine how many individuals or families might have to be relocated until well drilling began.” See FEIS at 4-94. App. 90 IT IS SO ORDERED. For the Commission ANNETTE L. VIETTI-COOK Secretary of the Commission App. 91 CLI-06-14 Cite as 63 N.R.C. 510 (2006) UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Nils J. Diaz, Chairman Edward McGaffigan, Jr. Jeffrey S. Merrifield Gregory B. Jaczko IN THE MATTER OF No. 40-8968-ML HYDRO RESOURCES, INC. May 16, 2006 (P.O. Box 777, Crownpoint, New Mexico 87313) MEMORANDUM AND ORDER Intervenors Eastern Navajo Diné Against Urani- um Mining and Southwest Research and Information Center (together, “Intervenors”) have petitioned for review of LBP-06-1, the Presiding Officer’s January 6, 2006, Partial Initial Decision (Phase II Radiological Air Emission Challenges to In Situ Leach Uranium Mining License).' The Presiding Officer found that radiological air emission from Hydro Resources, Inc.’s (HRI’s) proposed in situ leach mining facility in Church Rock, New Mexico, would not exceed the NRC dose limits.’ Intervenors claim that the Presiding Officer erroneously discounted, as “background ' LBP-06-1, 63 NRC 41 (2006). * Id. at 52-71. App. 92 radiation,” existing radiation from mining spoil left at the site by previous owners. We granted review so that we could resolve the “background radiation” issue definitively.’ Today we decide, as the Presiding Officer held, that radioactive residue from previous mining activity amounts to “background radiation” and does not count toward the 0.1-rem dose limit applicable to new in situ facility licenses." I BACKGROUND A. Regulation of Uranium Mining The NRC does not regulate conventional urani- um mining. The Atomic Energy Act requires an NRC license to transfer or receive in interstate commerce any source material (such as uranium ore) only “after removal from its place of deposit in nature.” This agency has traditionally viewed this provision as precluding jurisdiction over uranium mining as such.* * CLI-06-7, 63 NRC 165 (2006). * Under 10 C.FR. § 20.1301(a)(1), each licensee must con- duct operations so that a member of the public does not receive a dose exceeding 0.1 rem in a year “exclusive of the dose contribu- tions from background radiation.” ° Atomic Energy Act of 1954, as amended (AEA), § 62, 42 U.S.C. § 2092. * See, e.g., Rochester Gas and Electric Corp. (Sterling Power Project Nuclear Unit No. 1), ALAB-507, 8 NRC 551, 554 n.7 (1978) (“(TJhe Commission’s authority over uranium ore and other ‘source material’ attaches only ‘after removal from its place (Continued on following page) App. 93 In keeping with this interpretation, the NRC begins its oversight at the mill, rather than at the mine. Part 40 of our regulations governs processing of uranium ore.’ NRC regulates in situ leach mining, in contrast to conventional mining, because in situ extraction involves altering the chemical form of the uranium and thus constitutes the first step of pro- cessing. Conventional mining is controlled by other regulatory authorities. The State of New Mexico, for example, regulates conventional uranium mining within the state.” New Mexico’s laws address “the process of obtaining useful minerals from the earth,” with the exception of “the extraction, processing, or disposal of commodities, byproduct materials or wastes or other activities regulated by the [NRC].”” of deposit in nature,’ and not when the ore is mined,” citing 42 U.S.C. § 2092 (emphasis removed)). "In 10 C.FER. § 40.4, our regulations define “unrefined and unprocessed ore” as “ore in its natural form prior to any pro- cessing such as grinding, roasting or beneficiating, or refining” (emphasis added). * See New Mexico Mining Act, N.M. Stat. § 69-36-1 ef seq. (1978). * See N.M. Stat. § 69-36-3.H. In New Mexico Mining Commission v. United Nuclear Corp., 57 P.3d 862 (N.M. Ct. App. 2002), the New Mexico Court of Appeals rejected the argument by a mining company that this statute gave New Mexico no jurisdiction over its uranium mining because of the clause exempting NRC-regulated activities. The Court noted that the NRC has never asserted jurisdiction over conventional uranium mining. /d. at 864. App. 94 Pursuant to this authority, New Mexico has enforced cleanup orders against United Nuclear Corporation (UNC) — HRI’s predecessor-in-interest at} Church Rock — with respect to its uranium mining activities within the state.” The United States Environmental Protection Agency (EPA) exercises authority, under various statutes, to protect the public from hazards associat- ed with so-called “technologically enhanced naturally occurring radioactive material” (TENORM), including TENORM produced in uranium mining." B. History of this Proceeding” In 1994, HRI applied for a license to conduct in situ leach uranium mining at four sites in McKinley County, New Mexico. In January 1998, after complet- ing its technical review of the application, the NRC Staff granted HRI a materials license under 10 C.F-R. Part 40 to mine all four sites. In May 1998, the then- Presiding Officer granted the Intervenors’ requests for a hearing to challenge the license. ° See id. '' See EPA’s Web site at http/www.epa.gov/radiation/tenorm/ index.html; see also http://www.epa.gov/radiation/tenorm/uranium- waste.htm. ’ The Presiding Officer described the long history of this proceeding, as well as the leach-mining process, in his January 6, 2006, Order. As such, we do not provide a lenythy recapitula tion in today’s decision. App. 95 The adjudication was split into two phases, with the first phase covering the sites where HRI intended to start operations. The order now under review comes from the second phase of the adjudication and deals with a site known as Church Rock Section 17. Although HRI has held its license for 8 years, it has not yet started mining at any of the four sites, “due, in part, to profitability concerns relating to the fluc- tuating price of uranium.”” The Church Rock Section 17 site is contaminated with mining spoil left over from underground urani- um mining by its previous owner, UNC. UNC con- ducted underground mining on Section 17 for about 30 years before selling the land to HRI. The contami- nation is in the form of dust and rocks apparently lost from trucks hauling the ore from the site, or possibly from excavated rock used to build the road." No ore was ever processed on the Section 17 site.” Intervenors presented evidence suggesting that spoil left over from conventional mining on Section 17 has raised the level of gamma radiation at the site significantly." They further provided expert " LBP-06-1, 63 NRC at 46. See id. at 52 n.7. ” See Intervenors Eastern Navajo Diné Against Uranium Mining’s, Southwest Research and Information Center’s Written Presentation in Opposition to Hydro Resources, Inc.'s Applica- tion for a Materials License with Respect to: Radiological Air (Continued on following page) App. 96 testimony showing that radioactive air emissions, particularly near the roads, were elevated as com- pared to nearby unmined areas having “physical, chemical, radiological and biological characteristics” similar to Section 17.'' Intervenors claim that, due to this contamination, the Section 17 site emits radia- tion “above the NRC’s minimum safety levels,”” and this is reason enough for the NRC to deny a license for any further mining activity there. Intervenors argue that HRI should be forced to clean up the existing contamination before it is allowed to proceed with additional uranium recovery processes.” HRI argues that the dose levels of radiation at Section 17 are high due to “natural mineralization” in the area,” but. acknowledges that the mine spoil has elevated the radiation levels at least to some extent.” Emissions for Church Rock Section 17 (June 13, 2005), Declara- tion of Melinda Ronca-Battista, at 8 9, 12.13 ~ a. " See Intervenors’ Petition for Review of LBP-06-1 (lan. 26, 2006) at 4. ’ See Intervenors’ Keply Brief Regarding Chureh Rock Section 17 Air Emissions (Mar. 20, 2006) at 5 ” See (HRI's| Response in Opposition to Intervenors’ Written Presentation to the Presiding Officer Reyurdiny Air Emissions (July 29, 2005) at 22-23. “ See HRI'’s Response at 28 (“It is likely that backyround gamma radiation will be elevated due to the presence of the naturally occurring radioactive materials (i.e, mine waste) noted above”). App. 97 The issue we consider today deals exclusively with how to classify the radiation attributable to the existing mine spoil. Radioactive air emissions from HRI’s proposed in situ leach mining operations are not at issue. The Presiding Officer found that HRI’s controls would ensure its operations would not emit airborne radiation in excess of the 0.l-rem “total effective dose equivalent” (TEDE) limit set out in Part 20 of our regulations.” In making this finding, the Presiding Officer analyzed the text and history of key provisions of Part 20 and concluded that preexist- ing radioactive residue from prior mining should be considered “background radiation” and therefore not counted in the TEDE calculation.” Conversely, however, in the first phase of this adjudication, a different Presiding Officer held that radioactive emissions from material left on the mine site, as well as emissions from an underground mine, should be considered part of the TEDE from HRI’s operations. In the ruling now at issue, the Presiding Officer considered and rejected the previous Presiding “ LBP-06-1, 63 NRC at 69-71. Although Intervenors origi- nally claimed that emissions from the old UNC mine should count toward TEDE, the issue is moot because the Presiding Officer found that there are no such emissions due to the sealing of the mine. See LBP-06-1, 63 NRC at 53-55. The Intervenors do not challenge that finding on appeal. 3 Id. at 28-33. “ Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albu- querque, NM 87120), LBP-99-15, 49 NRC 261, 266-67, interlocu- tory petition for review denied, CLI-99-8, 49 NRC 311 (1999). App. 98 Officer’s reasoning on this issue.” This disagreement between the two Presiding Officers’ rulings was one reason we took review of this matter.” li. DISCUSSION We agree with and affirm the phase II Presiding Officer’s comprehensive decision.” His ruling is consistent with the NRC’s regulations and with its longstanding interpretation of its role in the uranium fuel cycle. Were the NRC to expand the definition of TEDE to include radioactive air emissions from debris left over from unlicensed conventional mining activities, the agency, in effect, would be entering an area of regulation that it has historically considered beyond the scope of the Atomic Energy Act. This we decline to do. A. TEDE The key question that the Presiding Officer had to answer was whether the TEDE from HRI’s opera- tion would exceed our regulatory dose limits. The * See LBP-06-1, 63 NRC at 59. *° See CLI-06-7, 63 NRC at 166. * Hence, for the reasons given by the phase II Presiding Officer, we disagree with the phase I Presiding Officer that emissions from preexisting radioactive materials deposited onsite as part of an operation not licensed by the NRC should be considered part of the TEDE from the licensed operation. See LBP-06-1, 63 NRC at 55-59. App. 99 pertinent regulation ties the TEDE calculation to radiation from “licensed operations”; it expressly excludes preexisting “background radiation”: Each licensee shall conduct operations so that — ... The [TEDE] to individual members of the public from the licensed operation does not exceed 0.1 rem ...in a year, exclusive of the dose contributions from background radia- tion, 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... .* Thus, the plain language of the regulation on TEDE emissions excludes emissions not directly linked to licensed activity. Both grammar and logic dictate that the emissions from already existing mining spoil do not constitute emissions from the licensed operation. In HRI’s case, then, only emissions actually stemming from the proposed in situ leach mining count in calculating the TEDE. Intervenors gain no ground with their argument that the calculated TEDE from a “licensed operation” must include all radioactive emissions, not just those * 10 C.F-R. § 20.1301(a)(1) (emphasis added). App. 100 from “licensed materials.” The Presiding Officer’s ruling does not say that the material emitting radia- tion must be “licensed” to count toward TEDE, only that it must come from the licensed operation. HRI’s bare ownership of land containing radioactive mine spoil is not part of its NRC-licensed “operation.” HRI did not bring the material to the surface. It is not required to have an NRC license to possess source material in the form 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. The Presiding Officer noted that simply inter- preting the phrase “from the licensed operation” as limiting the scope of TEDE arguably renders unnec- essary other provisions in the TEDE rule expressly excluding doses resulting from medical administra- tions and disposal of radioactive material in sanitary sewerage. Because of this concern, the Presiding Officer took his analysis a step farther, and inquired whether mine spoil emissions fit into the category of “background radiation” — which our rules explicitly exclude from the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2484%3A1. Public record. Not legal advice.