NATURAL RESOURCES DEFENSE COUNCIL and Powder River Basin Resource Council, Petitioners v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents Strata Energy, Inc., Intervenor
No. 16-1298
United States Court of Appeals, District of Columbia Circuit.
Argued October 10, 2017 Decided January 19, 2018
879 F.3d 1202
Before: Kavanaugh, Circuit Judge, and Williams and Ginsburg, Senior Circuit Judges.
V.
For the reasons stated above, the petition for review of the Tariff Order, Case No. 16-1023, is dismissed for lack of jurisdiction and the petition for review of the Complaint Order, Case No. 16-1024, is denied on the merits.
So ordered.
Shannon Anderson, Sheridan, WY, argued the cause for petitioners. On the brief were Howard M. Crystal and Geoffrey H. Fettus, Washington, DC.
Eric V. Michel, Attorney, Rockville, MD, U.S. Nuclear Regulatory Commission, argued the cause for federal respondents. With him on the brief were John C. Cruden, Assistant Attorney General at the time the brief was filed, U.S. Department of Justice, Lane N. McFadden, Attorney, Washington, DC, and Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory Commission.
Christopher S. Pugsley, Arlington, VA, argued the cause for intervenor-respondent. With him on the brief was Anthony J. Thompson, Washington, DC.
David A. Repka, Washington, DC, Tyson R. Smith, San Francisco, CA, Ellen C. Ginsberg, Washington, DC, and Jonathan M. Rund were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of respondents.
The Nuclear Regulatory Commission issued a license to Strata Energy, Inc. to mine uranium in Crook County, Wyoming. The Natural Resources Defense Council, Inc., and the Powder River Basin Resource Council (collectively, the Councils) intervened in the licensing proceeding and now petition this court for review, alleging both procedural and substantive defects in the licensing process. For the reasons that follow, we deny their petition.
I. Background
We begin with a brief explanation of the mining process, insofar as relevant to this litigation, before describing the facts and procedural background of this case.
A. ISL Mining
In situ leach uranium mining (ISL mining) involves the extraction of uranium from permeable uranium-bearing sandstone. The extraction begins with the drilling of an injection well into the sandstone formation, through which is pumped the “lixiviant,” a liquid that separates the uranium from the permeable sandstone. The uranium-permeated lixiviant is pumped out through a recovery well and processed to extract the uranium. A uranium mining project may comprise hundreds or even thousands of such wells, grouped together in a “wellfield.”
Although the layer of sandstone from which the uranium is extracted is meant to be hydrologically isolated—that is, bounded by layers of impermeable rock—“excursions” of the lixiviant may occur. In order to reduce the risk of excursions, ISL mining projects use “monitoring wells,” which miners drill both around the perimeter of a
B. Background
Strata sought a license from the Commission to mine uranium at what it calls the Ross Project in Crook County, Wyoming. 76 Fed. Reg. 41,308, 41,309 (2011). The Ross Project lies in an area known as the Lance District, which spans parts of Nebraska, South Dakota, and Wyoming.
The National Environmental Policy Act (NEPA),
1. The AEA
Under the AEA,
The Councils, which intervened on behalf of a member living in Wyoming, sought and were granted a hearing. See In re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project) (Strata I), 75 N.R.C. 164 (2012). Initially, the Commission admitted the Councils’ Contentions Nos. 1, 2, 3, and 4/5A, with Contention No. 1 being of limited relevance to this appeal. Contention No. 2 relates to the Commission requirement that, upon the completion of mining operations, the miner restore a mined aquifer so the groundwater concentration of the previously mined hazardous element or mineral does not exceed a specified limit.
Contention No. 3 dealt with the risk of excursions; it claimed Strata had “fail[ed] to include adequate hydrological information to demonstrate [its] ability to contain groundwater fluid migration.” Id. Finally, Contention No. 4/5A asserted that Strata had further expansion plans for the Lance District but had “fail[ed] to adequately assess cumulative impacts of the proposed action and the planned Lance District expansion project.” Id.
Once the Commission receives a license application, the Commission staff prepares a draft environmental impact statement (EIS), which analyzes the environmental effect of the proposal and of any alternatives. See
After the staff completed its draft EIS, the Atomic Safety and Licensing Board that conducted the hearing occasioned by the Councils’ intervention permitted the Council to migrate Contentions Nos. 1, 2, and 3 to the draft EIS. It disallowed Contention No. 4/5A on the ground that “the substantive basis of the cumulative impacts analysis asserted to be inadequate in the [license application] differs significantly from that provided in the [draft EIS].” In re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project) (Strata II), LBP-13-10, 2013 WL 8433972, at *21 (N.R.C. July 26, 2013). The Board noted that, if a contention is not obviously going to be migrated, then its proponent should either seek to amend it or have it treated as a new contention pursuant to
A draft EIS is subject to public comment.
2. The NEPA
In order to ensure that agencies consider the environmental consequences of their actions, the NEPA requires them to “include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement . . . on . . . the environmental impact of the proposed action.”
Here the parties agree the relevant report for NEPA purposes is the FEIS, but the evidentiary hearing to which the Councils were entitled under the AEA took place some six months after the FEIS and the license had been issued. See 79 Fed. Reg. 44,471 (July 31, 2014). This was in keeping with Commission regulations, as “the NRC staff is expected to promptly issue its approval or denial of [a license] application,” even “[d]uring the pendency of any hearing.”
In January 2015, the Board issued a decision on the Councils’ remaining contentions. In re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project) (Strata III), 81 N.R.C. 65 (2015). It rejected all their contentions and found no fault with the decision to issue the license. It did, however, find one fault with the FEIS itself—namely, that it did not include enough information concerning post-mining aquifer restoration to an ACL at ISL mining sites other than the Ross Project. Id. at 111 4.87-4.89 & n.49. The Board, however, rejected the Councils’ argument that it should invalidate the license on the ground that the FEIS was inadequate at the time the license was issued. Instead, the Board decided staff testimony in the record before it dealing with restoration to an ACL at other sites served to “supplement” the FEIS, thus making it adequate to support issuance of the license. Id. at 14.89.
Strata sought review by the Commission of the Board‘s decisions supplementing the FEIS, refusing to migrate Contention No. 4/5A, and rejecting Contention No. 6; it also raised various substantive objections to the license. The Commission rejected all Strata‘s arguments, with one Commissioner dissenting in part on the ground that supplementation of the FEIS meant the license was issued before the FEIS was complete, in violation of the NEPA. Strata IV, 83 N.R.C. 566. The Councils here raise essentially the same arguments they made to the Commission that its actions violated the NEPA and were arbitrary and capricious in violation of the Administrative Procedure Act (APA),
II. Analysis
The APA, of course, requires this court to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
A. Failure to Migrate Contention No. 4/5A and to Admit Contention No. 6
The Councils complain first that the Board refused to migrate Contention No. 4/5A from the license application to the draft EIS and that it refused to allow their new Contention No. 6.
1. Contention No. 4/5A
The Board will permit the migration of a contention if the analysis at which it is directed is substantially the same in the license application and in the draft EIS. That was not the case here; the discussion of possible cumulative effects associated with the Ross Project was substantially more thorough in the draft EIS than in the license application. Strata II, 2013 WL 8433972 at *21-22 and n.15. The Board also declined to amend the Contention sua sponte to apply to the discussion in the draft EIS; amended contentions must satisfy the “good cause” factors set out in
The Councils charge the Board‘s refusal to migrate Contention No. 4/5A elevated form over substance: Information showing they did have good cause and that the basis for Contention No. 4/5A did not dif-
2. Contention No. 6
The Councils’ proposed Contention No. 6 challenged the failure of the draft EIS to consider the environmental consequences of mining the entire Lance District, as opposed to just the Ross Project. Strata II, 2013 WL 8433972 at *23. The Commission‘s own regulations require that various projects be considered in a single EIS if they are “connected,” “cumulative,” or “similar.”
The Councils do not challenge that decision. They do, however, challenge the Board‘s conclusion that the Ross Project and future Lance District projects were not “connected” within the meaning of
Section
B. Supplementation of the EIS Post-Licensure
The Councils’ other procedural complaint focuses upon the supplementation of the FEIS after the staff had issued a license to Strata. As stated above, when the staff issued the license the Board had found only one flaw with the FEIS and the Record of Decision, namely, that the FEIS did not contain enough information on oth-
When the Councils challenged this supplementation on appeal, the Commission denied review because “the Board evaluated the Staff‘s analysis and determined that, with the additional information considered at the hearing and in the Staff‘s prefiled testimony, the environmental impacts of the proposed licensing action were appropriately identified.” Strata IV, 83 N.R.C. at 594. In addition, the Commission noted it had “previously held that a Board‘s hearing, hearing record, and subsequent decision on a contested environmental matter augment the environmental record of decision developed by the Staff with respect to this issue.” Id. at 595 (citing In re Entergy Nuclear Ops., Inc. (Indian Point, Units 2 and 3), 81 N.R.C. 340, 388 (2015)).
Commissioner Baran, dissenting, concluded that “the adjudicatory decision or proceedings cannot supplement the NEPA environmental document or Record of Decision after the fact because the licensing action has already been taken in reliance on the NEPA analysis.” Id. at 604, “[O]nly with the additional information considered at the hearing, were the environmental impacts of the proposed licensing action appropriately identified.” Id. Therefore, the NEPA analysis itself was inadequate to justify the decision made. Id.
In its petition for review by this court, the Councils renew their arguments, and adopt the point Commissioner Baran made in his dissent. In short, their argument is that the purpose of the NEPA is to “insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken,”
These are not idle concerns. We must consider, however, the exact nature of the initial decision to issue the license. The Commission seeks to portray the initial licensing decision as entirely provisional; that is not quite correct for, as the Councils charge (and the Commission does not deny), Strata was authorized to begin digging immediately upon receipt of the license. At the same time, the license was provisional in the most meaningful sense; no portion of it was irrevocable, and the Commission‘s own regulations make clear that the Board can amend or rescind a license after it has been issued.
Moreover, the Councils have not pointed to any harmful consequence of the supplementation; the Board came to the same decision after it had considered the supplemental information, and there is nothing to be gained by remanding the matter to the Commission for the staff or the Board to consider the same information again.
Indeed, as the Commission points out, we encountered this same situation in Friends of the River (FOTR) v. FERC, 720 F.2d 93 (D.C. Cir. 1983). The project at issue there was a hydroelectric dam;
Despite this post-license supplementation of the record of decision, we upheld the FERC‘s determination, rejecting essentially the same points the Councils raise here. We noted that the NEPA “establishes an essentially procedural requirement” that agencies “present evidence and discussion relevant to their environmental decisionmaking in one comprehensive document—the [EIS].” Id. at 105-06 (internal quotation marks omitted). We held the FERC failed to “measure up to NEPA‘s command.” Id. at 106.
Nevertheless, we did not remand the matter for reconsideration because that would have been futile. Had we done so, the agency would have been required to investigate the possibility of purchasing power from alternative sources, but “well before the start of [our] review . . . the [FERC] did make such an investigation” and “incorporated its findings in an opinion accessible to the public.” Id. Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016), upon which the Councils rely, is quite different. There the Bureau of Ocean Energy Management did not adequately consider the seafloor surrounding a wind energy project because it never undertook seafloor surveys. Id. at 1082-84. The intervenor, Cape Wind, the proponent of the project at issue, acknowledged the FEIS required those surveys but said they had in fact been done. Id. at 1083. The surveys were never acknowledged in agency decisions, however, and were never made available to the public; hence, the agency had not adopted them in any meaningful way, and a remand was in order. Id. This is unlike the situation here, where the agency recognized the inadequacy in the record of decision and corrected it before being challenged in court.
This case is on all fours with FOTR, not Hopper. Here, the Commission had adequately augmented its decision before being challenged in this court, and did so in a publicly accessible opinion. As in FOTR, “[w]e are not left to rely on post hoc rationalizations . . . [because] we have before us [the Commission‘s] assessment, embodied in an opinion composed after due investigation and before the matter was brought to court.” 720 F.2d at 106-07. Moreover:
Sending [this decision] back “to teach the agency a lesson” would be an essentially punitive measure; we can discern no benefit to the public in such a course, and no genuine service to the policies NEPA advances. . . . Remands in such cases would inevitably breed cynicism about court commands; they would likely yield . . . going-through-the-motions responses on the part of those told to attend to the court‘s costly, resource-consuming instruction to redo, under the proper heading, what has already been done effectively.
Id. at 107-08.
The Councils offer two grounds for distinguishing FOTR, but neither is convincing. The first is that in FOTR the license was issued only after the FEIS had been made adequate. This is incorrect; in FOTR the license was issued in February 1982 but the FERC adequately confronted the alternative of purchasing power for the
The second ground, raised for the first time at oral argument, is that FOTR dealt with consideration of potential alternatives to a given project, whereas this case deals with the potential environmental effects of the project itself. This belated assertion is true but irrelevant, for the two requirements stand on the same footing. The NEPA requires that an EIS or other similar report include a statement both of “any adverse environmental effects which cannot be avoided should the proposal be implemented” and of “alternatives to the proposed action.”
We do not mean to imply the procedure the Board followed was ideal or even desirable. Certainly it would be preferable for the FEIS to contain all relevant information and the record of decision to be complete and adequate before the license is issued. FOTR, however, makes clear that even if this procedure was not ideal it was permissible, and common sense counsels against prolonging this dispute by requiring an utterly pointless proceeding on remand.
C. Potential Negative Effect on the Mined Aquifer (Contention No. 2)
The first of the Councils’ substantive claims is that the Board erred in rejecting Contention No. 2, viz., that Strata “fail[ed] to analyze the environmental impacts that will occur if [it] cannot restore groundwater to primary or secondary limits.” Strata I, 75 N.R.C. at 212. In the Councils’ view, Strata will inevitably restore groundwater in the mined aquifer to an ACL, and the FEIS failed adequately to analyze the potential environmental effects of restoration to an ACL. Though the Councils’ brief is not entirely clear on this issue, we discern two main complaints: (i) the FEIS did not have enough evidence regarding restoration to an ACL at other sites and (ii) in making its determination the staff relied solely upon the mined aquifer never being used for drinking water.
We have already held it was acceptable for the Board to augment the FEIS with additional information regarding the restoration of other sites to an ACL. The Councils do not challenge the Board‘s determination that the information contained in the FEIS, once supplemented with the staff‘s prefiled hearing testimony, was a sufficient discussion of previous restorations to an ACL. Their first complaint is therefore moot.
The Councils’ second complaint also fails. The aquifer at issue is “exempted” from being a source of drinking water—meaning “[i]t does not currently serve as a source of drinking water” and “[i]t cannot now and will not in the future serve as a source of drinking water because . . . [i]t is mineral, hydrocarbon or geothermal energy producing.”
In any event, the exempt status of the aquifer was not the only basis for the Board‘s conclusion. The Board also noted “there have been no reported instances of an excursion from an [ISL mining] facility negatively impacting drinking water.” Id. It further stated that if Strata were to seek to restore the aquifer to an ACL, “a license amendment would be required, triggering another NEPA review, and a hearing opportunity, which will involve the analysis of more specific water quality data.” Id. Finally, it pointed out that the license itself included conditions designed to prevent precisely the kind of environmental damage the Councils fear. Id. In sum, the record belies the Councils’ suggestion that the staff and the Board relied solely upon the exempted status of the aquifer.
D. Incorrect Evaluation of the Risks of Off-Site Groundwater Contamination (Contention No. 3)
Finally, the Councils petition for review of the Commission‘s treatment of Contention No. 3. The Ross Project site is replete with improperly filled boreholes from previous exploratory digs; the Councils’ concern is that the presence of these unfilled boreholes presents an increased risk of excursions.
1. Circular reasoning
The Councils’ initial criticism of the Commission concerning Contention No. 3 is that it left undisturbed the Board‘s circular reasoning. Specifically, the Councils point to a footnote in the Board‘s order saying that the staff “has an additional incentive . . . [to] ensure that [Strata‘s] . . . ‘attempt’ to locate and [properly] abandon all [unfilled boreholes] . . . embodies a level of effort that maximizes the potential for eliminating excursions” because the staff will want “to fully support its predicative finding of SMALL long-term impacts from fluid migration.” Strata III, 81 N.R.C. at 14.128 n.66. In other words, the staff will ensure that the long-term effects of excursions are small because it will want to vindicate its characterization in the FEIS of long-term effects as small. The Councils claim this reasoning is circular and violates the NEPA, which requires that the FEIS to be a forward-looking, predictive document, as opposed to a goal the agency staff have an incentive to achieve.
The Board‘s reasoning here is indeed somewhat circular, but it is of minor im-
The Councils also accuse the Commission of ignoring contrary data it was provided in expert reports by Drs. Lance Larson and Richard Abitz, which they claim show that other companies with similar license conditions left boreholes unfilled. We confess to being puzzled by this accusation, as the Board specifically acknowledged this contrary evidence. See Strata III, 81 N.R.C. at 14.124 (acknowledging both experts’ testimony). The Board simply came to a contrary conclusion on a technical subject as to which we owe the Commission some deference. Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989).*
2. Inconsistent treatment of similar data
The Councils’ second claim with regard to Contention No. 3 is that the Board, in its analysis of Contention No. 1, was willing to accept that various well samples could be averaged to produce baseline water quality data, see Strata III, 81 N.R.C. at 111 4.32-4.34, whereas when it came to the data the Councils presented in support of Contention No. 3, the Board was unwilling to accept a similar averaging. Of course, it would be arbitrary and capricious for the agency‘s decision making to be “internally inconsistent.” Air Transp. Ass‘n of Am. v. Dep‘t of Transp., 119 F.3d 38, 43 (D.C. Cir. 1997). In this case, however, there was no inconsistency.
The Councils misunderstand the Board‘s reasoning. The Board rejected Dr. Abitz‘s testimony not because he averaged various samples to decide whether two aquifers were mixing; instead, the Board objected to his choice of a control. Specifically, Abitz proposed that test well 14-180Z be “taken as [indicative of] the unmixed groundwater from the ore horizon.” The Board deemed this proposal speculative because Abitz provided no evidence to support it. Strata III, 81 N.R.C. at 14.141. Based upon staff testimony, the Board in-
III. Conclusion
The procedure followed by the Commission in this matter was not ideal, but there was no harm and no foul under either the NEPA or the APA, and hence there is no point in remanding the matter on that score. Nor have the Councils identified any substantive flaws in the Commission‘s decisions. The Councils’ petition for review is therefore
Denied.