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

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2017 Decided January 19, 2018

No. 16-1298

NATURAL RESOURCES DEFENSE COUNCIL AND POWDER RIVER
BASIN RESOURCE COUNCIL,
PETITIONERS

v.

U.S. N UCLEAR REGULATORY COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS

STRATA ENERGY , INC.,
INTERVENOR

On Petition for Review of an Order of the
United States Nuclear Regulatory Commission

Shannon Anderson argued the cause for petitioners. On
the brief were Howard M. Crystal and Geoffrey H. Fettus.

Eric V. Michel, Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for federal respondents. With
him on the brief were John C. Cruden, Assistant Attorney
General at the time the brief was filed, U.S. Department of
Justice, Lane N. McFadden, Attorney, and Andrew P.
Averbach, Solicitor, U.S. Nuclear Regulatory Commission.
 2
Christopher S. Pugsley argued the cause for intervenor-
respondent. With him on the brief was Anthony J. Thompson.

David A. Repka, Tyson R. Smith, Ellen C. Ginsberg, and
Jonathan M. Rund were on the brief for amicus curiae Nuclear
Energy Institute, Inc. in support of respondents.

Before: KAVANAUGH , Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

GINSBURG, Senior Circuit Judge: The Nuclear Regulatory
Commission issued a license to Strata Energy, Inc. to mine
uranium in Crook County, Wyoming. The Natural Resources
Defense Council, Inc., and the Powder River Basin Resource
Council (collectively, the Councils) intervened in the licensing
proceeding and now petition this court for review, alleging both
procedural and substantive defects in the licensing process. For
the reasons that follow, we deny their petition.

I. Background

We begin with a brief explanation of the mining process,
insofar as relevant to this litigation, before describing the facts
and procedural background of this case.

A. ISL Mining

In situ leach uranium mining (ISL mining) involves the
extraction of uranium from permeable uranium-bearing
sandstone. The extraction begins with the drilling of an
injection well into the sandstone formation, through which is
pumped the “lixiviant,” a liquid that separates the uranium
 3
from the permeable sandstone. The uranium-permeated
lixiviant is pumped out through a recovery well and processed
to extract the uranium. A uranium mining project may
comprise hundreds or even thousands of such wells, grouped
together in a “wellfield.”

Although the layer of sandstone from which the uranium
is extracted is meant to be hydrologically isolated — that is,
bounded by layers of impermeable rock — “excursions” of the
lixiviant may occur. In order to reduce the risk of excursions,
ISL mining projects use “monitoring wells,” which miners drill
both around the perimeter of a wellfield and into overlying and
underlying aquifers in order to monitor any changes in the
chemical composition of the water.

B. Background

Strata sought a license from the Commission to mine
uranium at what it calls the Ross Project in Crook County,
Wyoming. 76 Fed. Reg. 41,308, 41,309 (2011). The Ross
Project lies in an area known as the Lance District, which spans
parts of Nebraska, South Dakota, and Wyoming.

The National Environmental Policy Act (NEPA), 42
U.S.C. §§ 4321 et seq., and the Atomic Energy Act (AEA), 42
U.S.C. § 2011 et seq., along with the Commission’s regulations
implementing them, governed the licensing process. That
process begins when a mining company files an “application
for a license to possess and use source material for uranium
milling.” 10 C.F.R. § 40.31(f). The application must include,
among other things, a discussion of “the impact of the proposed
action on the environment;” “[a]ny adverse environmental
effects which cannot be avoided should the proposal be
implemented;” and “[a]lternatives to the proposed action.” Id.
§ 51.45(b)(1)-(3).
 4

1. The AEA

Under the AEA, 42 U.S.C. § 2011 et seq., anyone “whose
interest may be affected by the [licensing] proceeding” has a
right to intervene and be heard. Id. § 2239(a)(1)(A). To get a
hearing, an intervenor must specify at least one “contention”
“[p]rovid[ing] a specific statement of the issue of law or fact to
be raised or controverted … directed at demonstrating that one
or more of the acceptance criteria [for a license] have not been,
or will not be met.” 10 C.F.R. § 2.309(f).

The Councils, which intervened on behalf of a member
living in Wyoming, sought and were granted a hearing. See In
re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project)
(Strata I), 75 N.R.C. 164 (2012). Initially, the Commission
admitted the Councils’ Contentions Nos. 1, 2, 3, and 4/5A, with
Contention No. 1 being of limited relevance to this appeal.
Contention No. 2 relates to the Commission requirement that,
upon the completion of mining operations, the miner restore a
mined aquifer so the groundwater concentration of the
previously mined hazardous element or mineral does not
exceed a specified limit. 10 C.F.R. Part 40, App. A. Of the
three options for restoration, the one relevant here is restoration
to an “alternate concentration limit [ACL] established by the
Commission,” id. Criterion 5B(5)(c), with this ACL being “as
low as reasonably achievable” so remaining hazardous
chemicals or minerals in the groundwater “will not pose a
substantial present or potential hazard to human health or the
environment,” id. Criterion 5B(6). Contention No. 2 charged
Strata with “fail[ing] to analyze the environmental impacts that
will occur if [Strata] cannot restore groundwater to primary or
secondary limits” — that is, if Strata were forced to restore
groundwater to an ACL. Strata I at 212.
 5
Contention No. 3 dealt with the risk of excursions; it
claimed Strata had “fail[ed] to include adequate hydrological
information to demonstrate [its] ability to contain groundwater
fluid migration.” Id. Finally, Contention No. 4/5A asserted
that Strata had further expansion plans for the Lance District
but had “fail[ed] to adequately assess cumulative impacts of the
proposed action and the planned Lance District expansion
project.” Id.

Once the Commission receives a license application, the
Commission staff prepares a draft environmental impact
statement (EIS), which analyzes the environmental effect of the
proposal and of any alternatives. See 10 C.F.R. §§ 51.70-71.
The Commission can “migrate” contentions made against an
initial license application (that is, “deem[] [them] to apply”) to
the draft EIS or final EIS (FEIS) if “the information in the [draft
EIS or FEIS] is sufficiently similar to the material in the
[license application]” that the contention remains relevant. In
re Strata Energy, Inc. (Ross In Situ Recovery Uranium Project)
(Strata IV), 83 N.R.C. 566, 570 n.17 (2016) (internal quotation
marks omitted).

After the staff completed its draft EIS, the Atomic Safety
and Licensing Board that conducted the hearing occasioned by
the Councils’ intervention permitted the Council to migrate
Contentions Nos. 1, 2, and 3 to the draft EIS. It disallowed
Contention No. 4/5A on the ground that “the substantive basis
of the cumulative impacts analysis asserted to be inadequate in
the [license application] differs significantly from that
provided in the [draft EIS].” In re Strata Energy, Inc. (Ross In
Situ Recovery Uranium Project) (Strata II), LBP-13-10, 2013
WL 8433972, at *21 (N.R.C. July 26, 2013). The Board noted
that, if a contention is not obviously going to be migrated, then
its proponent should either seek to amend it or have it treated
as a new contention pursuant to 10 C.F.R. § 2.309(c)(1) and
 6
(f)(1), failing which the contention may be lost. Id. at *22 n.15.
The Board also declined to admit a new Contention No. 6. Id.
at *22-29.

A draft EIS is subject to public comment. 10 C.F.R.
§ 51.73. Per Commission regulations, once comments have
been received and addressed, the staff publishes its FEIS, id.
§ 51.91(a)(1), a record of decision, id. § 51.102, and a decision
on whether to issue a license, id. § 2.1202(a). The staff
published the FEIS for the Ross Project in March 2014. 79
Fed. Reg. 13,683 (March 11, 2014). Shortly thereafter, it
issued a record of decision, rejected all the Councils’ remaining
contentions, and granted Strata a license.

2. The NEPA

In order to ensure that agencies consider the environmental
consequences of their actions, the NEPA requires them to
“include in every recommendation or report on … major
Federal actions significantly affecting the quality of the human
environment, a detailed statement … on … the environmental
impact of the proposed action.” 42 U.S.C. § 4332(C)(i). This
requirement is meant both to guarantee an agency will
“consider every significant aspect of the environmental impact
of a proposed action” and “inform the public” that it has done
so, Baltimore Gas & Electric Co. v. NRDC, Inc., 462 U.S. 87,
97 (1983) (internal quotation marks omitted), and to “focus[]
the agency’s attention on the environmental consequences of a
proposed project … [so] that important effects will not be
overlooked or underestimated only to be discovered after
resources have been committed or the die otherwise cast.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
349 (1989).
 7
Here the parties agree the relevant report for NEPA
purposes is the FEIS, but the evidentiary hearing to which the
Councils were entitled under the AEA took place some six
months after the FEIS and the license had been issued. See 79
Fed. Reg. 44,471 (July 31, 2014). This was in keeping with
Commission regulations, as “the NRC staff is expected to
promptly issue its approval or denial of [a license] application,”
even “[d]uring the pendency of any hearing.” 10 C.F.R.
§ 2.1202(a).

In January 2015, the Board issued a decision on the
Councils’ remaining contentions. In re Strata Energy, Inc.
(Ross In Situ Recovery Uranium Project) (Strata III), 81
N.R.C. 65 (2015). It rejected all their contentions and found
no fault with the decision to issue the license. It did, however,
find one fault with the FEIS itself — namely, that it did not
include enough information concerning post-mining aquifer
restoration to an ACL at ISL mining sites other than the Ross
Project. Id. at ¶¶ 4.87-4.89 & n.49. The Board, however,
rejected the Councils’ argument that it should invalidate the
license on the ground that the FEIS was inadequate at the time
the license was issued. Instead, the Board decided staff
testimony in the record before it dealing with restoration to an
ACL at other sites served to “supplement[]” the FEIS, thus
making it adequate to support issuance of the license. Id. at ¶
4.89.

Strata sought review by the Commission of the Board’s
decisions supplementing the FEIS, refusing to migrate
Contention No. 4/5A, and rejecting Contention No. 6; it also
raised various substantive objections to the license. The
Commission rejected all Strata’s arguments, with one
Commissioner dissenting in part on the ground that
supplementation of the FEIS meant the license was issued
before the FEIS was complete, in violation of the NEPA.
 8
Strata IV, 83 N.R.C. 566. The Councils here raise essentially
the same arguments they made to the Commission that its
actions violated the NEPA and were arbitrary and capricious in
violation of the Administrative Procedure Act (APA), 5 U.S.C.
§ 706(2)(A).

II. Analysis

The APA, of course, requires this court to “hold unlawful
and set aside agency action, findings, and conclusions found to
be arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). “Upon review
of the EIS, our job is to ensure that the agency took a ‘hard
look’ at the environmental consequences of its decision to go
forward with the project.” City of Grapevine, Tex. v. Dep’t of
Transp., 17 F.3d 1502, 1503-04 (D.C. Cir. 1994). “In doing
so, we are mindful that our role is not to ‘flyspeck an agency’s
environmental analysis, looking for any deficiency no matter
how minor.’” WildEarth Guardians v. Jewell, 738 F.3d 298,
319 (D.C. Cir. 2013) (quoting Nevada v. Dep’t of Energy, 457
F.3d 78, 93 (D.C. Cir. 2006)).

A. Failure to Migrate Contention No. 4/5A and to Admit
Contention No. 6

The Councils complain first that the Board refused to
migrate Contention No. 4/5A from the license application to
the draft EIS and that it refused to allow their new Contention
No. 6.

1. Contention No. 4/5A

The Board will permit the migration of a contention if the
analysis at which it is directed is substantially the same in the
license application and in the draft EIS. That was not the case
 9
here; the discussion of possible cumulative effects associated
with the Ross Project was substantially more thorough in the
draft EIS than in the license application. Strata II, 2013 WL
8433972 at *21-22 and n.15. The Board also declined to
amend the Contention sua sponte to apply to the discussion in
the draft EIS; amended contentions must satisfy the “good
cause” factors set out in 10 C.F.R. § 2.309(c)(1), and the
Councils failed even to imply they wanted to amend
Contention No. 4/5A and failed to mention those factors in
their application to migrate the Contention. Id.

The Councils charge the Board’s refusal to migrate
Contention No. 4/5A elevated form over substance:
Information showing they did have good cause and that the
basis for Contention No. 4/5A did not differ substantially
between the license application and the draft EIS was available
in the record, and the Board should have found it even if the
Councils themselves did not specifically point to it. But a court
is not required to plumb the record for “novel arguments a
[litigant] could have made but did not,” United States v.
Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011); cf. United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in briefs”), and we see no
reason agency officials engaged in adjudication should be any
more obligated than judges to do counsels’ work for them. We
are unwilling, therefore, to fault the Board for failing to hunt
for such evidence when the Councils themselves did not even
imply they wanted to amend their Contention.

2. Contention No. 6

The Councils’ proposed Contention No. 6 challenged the
failure of the draft EIS to consider the environmental
consequences of mining the entire Lance District, as opposed
to just the Ross Project. Strata II, 2013 WL 8433972 at *23.
 10
The Commission’s own regulations require that various
projects be considered in a single EIS if they are “connected,”
“cumulative,” or “similar.” 40 C.F.R. § 1508.25(a). A
contention that a set of projects is connected, cumulative, or
similar must, however, like any other contention, be made in a
timely manner, as specified in 10 C.F.R. § 2.309(c)(1)(iii); here
the Board held any argument that Ross Project was cumulative
with or similar to other projects was not timely because the
information necessary for making that argument was available
in various press releases from Strata and its parent company
well before the Councils attempted to file Contention No. 6.
Strata II, 2013 WL 8433972 at *28.

The Councils do not challenge that decision. They do,
however, challenge the Board’s conclusion that the Ross
Project and future Lance District projects were not “connected”
within the meaning of § 1508.25(a), though they do so in vague
terms.

Section 1508.25(a)(1)(iii) defines “connected” projects as
projects that “[a]re interdependent parts of a larger action and
depend on the larger action for their justification.” The Board
concluded the Ross Project was not dependent upon any future
project because the Ross Project had “independent utility” —
meaning the Ross Project was viable even if no other part of
the Lance District were to be developed. Strata II at *26-27
(citing Thomas v. Peterson, 753 F.2d 754, 759 (9th Cir. 1985)).
Beyond a vague allusion to “other evidence,” all the Councils
offer this court to show the Ross Project lacked independent
utility is that it “was intended to service the larger Lance
District operation” and “Strata’s parent company had publicly
announced the larger development plans.” This simply does
not respond to the Board’s finding that the Ross Project was
economically viable standing alone. That its sponsor
envisioned it as part of a larger uranium production complex
 11
does not mean the Ross Project would not have been built
absent the larger production complex that Strata hoped
eventually to develop.

B. Supplementation of the EIS Post-Licensure

The Councils’ other procedural complaint focuses upon
the supplementation of the FEIS after the staff had issued a
license to Strata. As stated above, when the staff issued the
license the Board had found only one flaw with the FEIS and
the Record of Decision, namely, that the FEIS did not contain
enough information on other aquifers previously restored to
ACLs after the completion of an ISL mining project. Strata III,
81 N.R.C. at ¶¶ 4.87-4.89 & n.49. Nevertheless, the Board held
“the post-restoration uranium concentration levels reported in
the Staff’s prefiled [hearing] testimony supplements the [FEIS]
so as to cure any defect in that regard.” Id. at ¶ 4.89.

When the Councils challenged this supplementation on
appeal, the Commission denied review because “the Board
evaluated the Staff’s analysis and determined that, with the
additional information considered at the hearing and in the
Staff’s prefiled testimony, the environmental impacts of the
proposed licensing action were appropriately identified.”
Strata IV, 83 N.R.C. at 594. In addition, the Commission noted
it had “previously held that a Board’s hearing, hearing record,
and subsequent decision on a contested environmental matter
augment the environmental record of decision developed by the
Staff with respect to this issue.” Id. at 595 (citing In re Entergy
Nuclear Ops., Inc. (Indian Point, Units 2 and 3), 81 N.R.C.
340, 388 (2015)).

Commissioner Baran, dissenting, concluded that “the
adjudicatory decision or proceedings cannot supplement the
NEPA environmental document or Record of Decision after the
 12
fact because the licensing action has already been taken in
reliance on the NEPA analysis.” Id. at 604. “[O]nly with the
additional information considered at the hearing, were the
environmental impacts of the proposed licensing action
appropriately identified.” Id. Therefore, the NEPA analysis
itself was inadequate to justify the decision made. Id.

In its petition for review by this court, the Councils renew
their arguments, and adopt the point Commissioner Baran
made in his dissent. In short, their argument is that the purpose
of the NEPA is to “insure that environmental information is
available to public officials and citizens before decisions are
made and before actions are taken,” 40 C.F.R. § 1500.1(b), and
the Board as much as admitted the FEIS failed in that regard.
Relatedly, the Councils cite Robertson for the proposition that
the NEPA is an information-forcing statute, intended to require
agencies to have all the relevant information before “resources
have been committed or the die otherwise cast.” 490 U.S. at
349.

These are not idle concerns. We must consider, however,
the exact nature of the initial decision to issue the license. The
Commission seeks to portray the initial licensing decision as
entirely provisional; that is not quite correct for, as the Councils
charge (and the Commission does not deny), Strata was
authorized to begin digging immediately upon receipt of the
license. At the same time, the license was provisional in the
most meaningful sense; no portion of it was irrevocable, and
the Commission’s own regulations make clear that the Board
can amend or rescind a license after it has been issued. 10
C.F.R. § 2.340(e)(2). Indeed, the Board did amend the license
to increase the area in which Strata was required to attempt to
locate and to fill previously dug boreholes. See Strata III at
¶ 4.131.
 13
Moreover, the Councils have not pointed to any harmful
consequence of the supplementation; the Board came to the
same decision after it had considered the supplemental
information, and there is nothing to be gained by remanding the
matter to the Commission for the staff or the Board to consider
the same information again.

Indeed, as the Commission points out, we encountered this
same situation in Friends of the River (FOTR) v. FERC, 720
F.2d 93 (D.C. Cir. 1983). The project at issue there was a
hydroelectric dam; intervenors had challenged the plan to build
the dam, arguing that the power need could be met by
purchasing power produced by existing facilities. 720 F.2d at
95-97. The FEIS had “accorded only summary attention to
[that] concern.” Id. at 97. The FERC issued the license for the
dam, and only when it denied the intervenors’ petition for
rehearing did it provide a “cogent[]” explanation of “why [it]
rejected prospects for further reliance on purchased power as a
ground for refusing the license.” Id.

Despite this post-license supplementation of the record of
decision, we upheld the FERC’s determination, rejecting
essentially the same points the Councils raise here. We noted
that the NEPA “establishes an essentially procedural
requirement” that agencies “present evidence and discussion
relevant to their environmental decisionmaking in one
comprehensive document — the [EIS].” Id. at 105-06 (internal
quotation marks omitted). We held the FERC failed to
“measure up to NEPA’s command.” Id. at 106.

Nevertheless, we did not remand the matter for
reconsideration because that would have been futile. Had we
done so, the agency would have been required to investigate
the possibility of purchasing power from alternative sources,
but “well before the start of [our] review … the [FERC] did
 14
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
 15
proper heading, what has already been done
effectively.

Id. at 107-08.

The Councils offer two grounds for distinguishing FOTR,
but neither is convincing. The first is that in FOTR the license
was issued only after the FEIS had been made adequate. This
is incorrect; in FOTR the license was issued in February 1982
but the FERC adequately confronted the alternative of
purchasing power for the first time some months later, in
denying rehearing of the initial decision to grant the license.
Id. at 97.

The second ground, raised for the first time at oral
argument, is that FOTR dealt with consideration of potential
alternatives to a given project, whereas this case deals with the
potential environmental effects of the project itself. This
belated assertion is true but irrelevant, for the two requirements
stand on the same footing. The NEPA requires that an EIS or
other similar report include a statement both of “any adverse
environmental effects which cannot be avoided should the
proposal be implemented” and of “alternatives to the proposed
action.” 42 U.S.C. § 4332(C)(ii)-(iii). So too do the
Commission’s own regulations. 10 C.F.R. § 51.45(b)(2), (3).
If the FEIS is required in one breath to consider both the
environmental effects of a proposed project and potential
alternatives to that project, then we cannot say the failure of
one FEIS adequately to consider a potential alternative is
somehow less important than the failure of another adequately
to consider a potential effect of the proposed project.

We do not mean to imply the procedure the Board
followed was ideal or even desirable. Certainly it would be
preferable for the FEIS to contain all relevant information and
 16
the record of decision to be complete and adequate before the
license is issued. FOTR, however, makes clear that even if this
procedure was not ideal it was permissible, and common sense
counsels against prolonging this dispute by requiring an utterly
pointless proceeding on remand.

C. Potential Negative Effect on the Mined Aquifer
(Contention No. 2)

The first of the Councils’ substantive claims is that the
Board erred in rejecting Contention No. 2, viz., that Strata
“fail[ed] to analyze the environmental impacts that will occur
if [it] cannot restore groundwater to primary or secondary
limits.” Strata I, 75 N.R.C. at 212. In the Councils’ view,
Strata will inevitably restore groundwater in the mined aquifer
to an ACL, and the FEIS failed adequately to analyze the
potential environmental effects of restoration to an ACL.
Though the Councils’ brief is not entirely clear on this issue,
we discern two main complaints: (i) the FEIS did not have
enough evidence regarding restoration to an ACL at other sites
and (ii) in making its determination the staff relied solely upon
the mined aquifer never being used for drinking water.

We have already held it was acceptable for the Board to
augment the FEIS with additional information regarding the
restoration of other sites to an ACL. The Councils do not
challenge the Board’s determination that the information
contained in the FEIS, once supplemented with the staff’s
prefiled hearing testimony, was a sufficient discussion of
previous restorations to an ACL. Their first complaint is
therefore moot.

The Councils’ second complaint also fails. The aquifer at
issue is “exempted” from being a source of drinking water —
meaning “[i]t does not currently serve as a source of drinking
 17
water” and “[i]t cannot now and will not in the future serve as
a source of drinking water because … [i]t is mineral,
hydrocarbon or geothermal energy producing.” 40 C.F.R.
§ 146.4(a)-(b)(1). In the Councils’ view, the Board simply
concluded that the effect of the mining project upon the aquifer
would be “small” because the effect of any mining project upon
any exempted aquifer would be “small,” and saying no more
violated the requirement in the NEPA to disclose all adverse
environmental effects of a major federal action.

In accordance with the NRC’s usual practice, see
ENVIRONMENTAL REVIEW G UIDANCE FOR LICENSING ACTIONS
ASSOCIATED WITH NMSS PROGRAMS § 4.2.5.3 (2003)
(NUREG-1748), the FEIS defines “small” effects as effects
that are “not detectable … or so minor that they will neither
destabilize nor noticeably alter any important attribute of the
resource considered.” “Large” effects, by contrast, “are clearly
noticeable and are sufficient to destabilize important attributes
of the resource considered.” The definition of “medium”
effects is not important, for these definitions reveal the
Councils’ mischaracterization of the Board’s decision: The
Board did not conclude that any effect upon an exempted
aquifer would be “small”; rather, it found “there ha[d] been no
showing that the impacts from employing an ACL will be
‘clearly noticeable’ and ‘sufficient to destabilize important
attributes of [the resource].’” Strata III, 81 N.R.C. at ¶ 4.107
(quoting the FEIS). That is, the Board concluded the effect
would not be large, not that the effect would be small. This
conclusion is unavoidable: Because it is “exempt,” the only
resource the aquifer has to offer is the uranium that can be
mined from it, and we cannot see how actually mining the
uranium would destabilize an important attribute of the aquifer.

In any event, the exempt status of the aquifer was not the
only basis for the Board’s conclusion. The Board also noted
 18
“there have been no reported instances of an excursion from an
[ISL mining] facility negatively impacting drinking water.” Id.
It further stated that if Strata were to seek to restore the aquifer
to an ACL, “a license amendment would be required, triggering
another NEPA review, and a hearing opportunity, which will
involve the analysis of more specific water quality data.” Id.
Finally, it pointed out that the license itself included conditions
designed to prevent precisely the kind of environmental
damage the Councils fear. Id. In sum, the record belies the
Councils’ suggestion that the staff and the Board relied solely
upon the exempted status of the aquifer.

D. Incorrect Evaluation of the Risks of Off-Site
Groundwater Contamination (Contention No. 3)

Finally, the Councils petition for review of the
Commission’s treatment of Contention No. 3. The Ross
Project site is replete with improperly filled boreholes from
previous exploratory digs; the Councils’ concern is that the
presence of these unfilled boreholes presents an increased risk
of excursions.

1. Circular reasoning

The Councils’ initial criticism of the Commission
concerning Contention No. 3 is that it left undisturbed the
Board’s circular reasoning. Specifically, the Councils point to
a footnote in the Board’s order saying that the staff “has an
additional incentive … [to] ensure that [Strata’s] … ‘attempt’
to locate and [properly] abandon all [unfilled boreholes] …
embodies a level of effort that maximizes the potential for
eliminating excursions” because the staff will want “to fully
support its predicative finding of SMALL long-term impacts
from fluid migration.” Strata III, 81 N.R.C. at ¶ 4.128 n.66. In
other words, the staff will ensure that the long-term effects of
 19
excursions are small because it will want to vindicate its
characterization in the FEIS of long-term effects as small. The
Councils claim this reasoning is circular and violates the
NEPA, which requires that the FEIS to be a forward-looking,
predictive document, as opposed to a goal the agency staff have
an incentive to achieve.

The Board’s reasoning here is indeed somewhat circular,
but it is of minor importance to the Board’s decision. Its
reference in the margin to the staff’s desire to live up to the
FEIS as an “additional incentive” implies there are other, no
doubt more important, incentives at work. Indeed, the Board
focused primarily upon the terms of the license itself, which
required Strata to attempt to locate and to fill all boreholes in
the area, to undertake additional tests before beginning
production to prevent excursions, and to stop work
immediately upon detection of an excursion. Id. at ¶ 4.128. It
is only reasonable for the Board to rely upon the conditions in
the license to determine the likely environmental effects of
issuing the license, at least when the licensee — like Strata —
does not have a record of failing to comply with license
conditions. In analogous situations, we have permitted other
agencies to rely upon the actions they have required in
mitigation when predicting effects in an environmental
analysis under the NEPA. See Theodore Roosevelt
Conservation P’ship v. Salazar, 616 F.3d 497, 515-17 (D.C.
Cir. 2010) (rejecting the argument that taking into account
adaptive mitigation measures when measuring environmental
effects violated the NEPA); see also Sierra Club v. Van
Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (noting that
“we have found” “mitigation measures” can reduce the
environmental effects of a major federal action).

The Councils also accuse the Commission of ignoring
contrary data it was provided in expert reports by Drs. Lance
 20
Larson and Richard Abitz, which they claim show that other
companies with similar license conditions left boreholes
unfilled. We confess to being puzzled by this accusation, as
the Board specifically acknowledged this contrary evidence.
See Strata III, 81 N.R.C. at ¶ 4.124 (acknowledging both
experts’ testimony). The Board simply came to a contrary
conclusion on a technical subject as to which we owe the
Commission some deference. Chritton v. NTSB, 888 F.2d 854,
856 (D.C. Cir. 1989).*

2. Inconsistent treatment of similar data

The Councils’ second claim with regard to Contention No.
3 is that the Board, in its analysis of Contention No. 1, was
willing to accept that various well samples could be averaged
to produce baseline water quality data, see Strata III, 81 N.R.C.
at ¶¶ 4.32-4.34, whereas when it came to the data the Councils
presented in support of Contention No. 3, the Board was
unwilling to accept a similar averaging. Of course, it would be
arbitrary and capricious for the agency’s decision making to be
“internally inconsistent.” Air Transp. Ass’n of Am. v. Dep’t of
Transp., 119 F.3d 38, 43 (D.C. Cir. 1997). In this case,
however, there was no inconsistency.

The Councils misunderstand the Board’s reasoning. The
Board rejected Dr. Abitz’s testimony not because he averaged
various samples to decide whether two aquifers were mixing;
instead, the Board objected to his choice of a control.
Specifically, Abitz proposed that test well 14-18OZ be “taken
*
The Councils argue their real concern is with the terms of the
license itself — namely, that it requires Strata only to “attempt” to
locate and to fill the boreholes, instead of simply requiring Strata to
do so. We do not consider this argument because it was first raised
in the reply brief and hence is forfeit. See Great Lakes Chem. Corp.
v. NLRB, 967 F.2d 624, 630 (D.C. Cir. 1992).
 21
as [indicative of] the unmixed groundwater from the ore
horizon.” The Board deemed this proposal speculative because
Abitz provided no evidence to support it. Strata III, 81 N.R.C.
at ¶ 4.141. Based upon staff testimony, the Board instead
concluded that well 14-18OZ was likely to be unrepresentative
of unmixed groundwater and therefore a poor choice for a
baseline. Id. Obviously, there is no inconsistency in accepting
the average from a number of wells in one test while rejecting
the choice of a particular well as the control or baseline for
another.

III. Conclusion

The procedure followed by the Commission in this matter
was not ideal, but there was no harm and no foul under either
the NEPA or the APA, and hence there is no point in remanding
the matter on that score. Nor have the Councils identified any
substantive flaws in the Commission’s decisions. The
Councils’ petition for review is therefore

Denied.