Oglala Sioux Tribe v. NRC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2021 Decided August 9, 2022

No. 20-1489

OGLALA SIOUX TRIBE AND ALIGNING FOR RESPONSIBLE
MINING,
PETITIONERS

v.

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

POWERTECH (USA), INC.,
INTERVENOR

On Petition for Review of Orders
of the Nuclear Regulatory Commission

Jeffrey C. Parsons argued the cause for petitioners. With
him on the briefs were Roger Flynn and Travis Stills.

James E. Adler, Senior Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With him on
the brief were Justin D. Heminger, Attorney, U.S. Department
of Justice, and Andrew P. Averbach, Solicitor, U.S. Nuclear
Regulatory Commission.
 2

Christopher S. Pugsley argued the cause for intervenor-
respondent Powertech (USA), Inc. With him on the brief was
Anthony J. Thompson.

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

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: The Oglala Sioux Tribe and its non-
profit association Aligning for Responsible Mining seek
review of the Nuclear Regulatory Commission’s decision to
grant Powertech (USA), Inc., a source material license to
extract uranium from ore beds in South Dakota. The Tribe
maintains that the Commission failed to meet its obligations
under the National Environmental Policy Act and the National
Historic Preservation Act. We deny the Tribe’s petition
because the Commission adequately complied with the
relevant statutory and regulatory requirements.
I.
A.
Powertech sought to extract uranium from the Dewey-
Burdock area, which spans over 10,000 acres in South Dakota
and sits atop aquifers laced with uranium-rich ore beds. To
remove the uranium, Powertech proposed using a process
called “in situ recovery,” which involves pumping an aqueous
solution into underground ore beds to dissolve uranium;
pumping the resulting solution back to the surface; and
separating out the uranium for later processing into nuclear
fuel. Powertech also planned to install monitoring wells to

*
Circuit Judge, now Justice, Jackson was a member of the panel at
the time the case was argued but did not participate in the opinion.
 3

ensure its operations did not adversely affect the surrounding
water quality.
Before beginning this project, Powertech was required to
secure a license from the Commission. See 42 U.S.C.
§§ 2014(z)(1), 2092 (prohibiting the transfer, delivery, or
receipt of “source material” like uranium “after removal from
its place of deposit in nature” without a license). The
Commission’s licensing process implicates a series of
intersecting statutory and regulatory requirements.
The Atomic Energy Act of 1954 (“AEA”), Pub. L. No. 83-
703, 68 Stat. 919 (codified as amended at 42 U.S.C. § 2011 et
seq.), and its implementing regulations set forth the
Commission’s procedures for licensing. When the Commission
receives a license application, it publishes a notice of the
proposed action in the Federal Register. 10 C.F.R. § 2.105. If a
party seeking to intervene in the process can show it would be
impacted by the license and that there is at least one genuine
and material dispute on a factual or legal issue, the Commission
must grant the intervenor a hearing. 42 U.S.C. § 2239(a)(1)(A);
10 C.F.R. § 2.309(a), (d), (f)(1). The Commission may delegate
these adjudicatory responsibilities to a three-member Atomic
Safety and Licensing Board (“Licensing Board”), 42 U.S.C. §
2241(a); 10 C.F.R. § 2.321, the decisions of which are
reviewable by the Commission, 10 C.F.R. §§ 2.341, 2.1212.
The Commission appointed a Licensing Board to adjudicate
challenges to Powertech’s license, and the Tribe intervened in
those proceedings.
The licensing process also requires the Commission to
comply with the National Environmental Policy Act
(“NEPA”), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified
as amended at 42 U.S.C. § 4321 et seq.). NEPA requires all
federal agencies proposing a “major Federal action[]
significantly affecting the human environment” to prepare “a
 4

detailed statement” analyzing the impacts of that action. 42
U.S.C. § 4332(2)(C). This environmental impact statement
(“EIS”) must discuss adverse impacts “which cannot be
avoided,” “alternatives to the proposed action,” long- and
short-term effects, and “any irreversible and irretrievable
commitments of resources” involved in the action. Id.; see also
10 C.F.R. § 51.20(b)(8) (specifying an EIS is required when
issuing a source material license for uranium extraction). The
Commission must publish a notice of intent to prepare an EIS,
and it must conduct an “appropriate scoping process” with
those affected by the proposed action to determine the issues
and impacts that will be analyzed in the EIS. 10 C.F.R.
§§ 51.26(a), 51.27(a), 51.28, 51.29(a). In particular, the
Commission must invite “[a]ny affected Indian tribe” to
participate in the scoping process, id. § 51.28(a)(5), and
analyze “significant problems and objections raised by” those
tribes in the EIS, id. § 51.71(b); see also id. § 51.90.
Powertech’s license also implicated Section 106 of the
National Historic Preservation Act (“NHPA”), which requires
an agency, “prior to the issuance of any license, [to] take into
account the effect of the undertaking on any historic property.”
54 U.S.C. § 306108; see also NHPA, Pub. L. No. 89-665,
§ 106, 80 Stat. 915, 917 (1966). “Historic property” is defined
capaciously to include “any prehistoric or historic district, site,
building, structure, or object included on, or eligible for
inclusion on, the National Register [of Historic Places]” or any
“artifacts, records, and material remains relating” to such. 54
U.S.C. § 300308. Before issuing a license, the Commission
must “consult with any Indian tribe … that attaches religious
and cultural significance to historic properties that may be
affected” by the license, giving tribes a “reasonable
opportunity” to identify concerns and help resolve any adverse
effects. 36 C.F.R. § 800.2(c)(2)(ii). In light of the substantial
overlap between the NHPA and NEPA inquiries, an EIS
 5

“should include consideration of the … likely effects on
historic properties.” Id. § 800.8(a)(1); see also id. § 800.8(c)
(allowing agencies to use the NEPA process in lieu of the
normal Section 106 process).
B.
With respect to NEPA and NHPA compliance, the agency 1
had already prepared a “generic” EIS in 2009 to address the
environmental impacts of in situ recovery methods within the
broader region in which the Dewey-Burdock Project is located.
The agency was also required to create a supplemental EIS to
address the specific impacts of Powertech’s project. See 10
C.F.R. §§ 51.20(b)(8), 51.92. Only the supplement is at issue
in the Tribe’s petition. The agency initiated the EIS process by
inviting twenty tribes that could be affected by Powertech’s
operations and requested assistance with identifying cultural
and historical resources, including sites, objects, and other
resources that carry cultural or religious significance. The
Oglala Sioux Tribe was among those invited to participate.
By 2012, the agency and participating tribes settled on
several preliminary conclusions. First, the tribes’ involvement
was essential as they possessed an “intimate cultural
knowledge” of the Dewey-Burdock area and could identify
“not only site-specific physical impacts, but intangible impacts
to the integrity of the area from cultural, historical, spiritual,
and religious perspectives.” Second, it was necessary to survey

1
While these steps in the AEA, NEPA, and the NHPA have been
delegated to various Commission staff, we refer to these actions as
those of the agency or Commission because the Commission is
ultimately responsible for complying with statutory and regulatory
requirements.
 6

the area to identify those impacts. The Oglala Sioux Tribe
disagreed, however, with respect to the methods for surveying
the Dewey-Burdock area. When negotiations over the survey
broke down, the Commission issued a draft EIS for public
comment in late 2012 and explained it would later survey the
area and supplement the EIS as necessary.
In 2013, the Commission conducted a field survey of the
Dewey-Burdock area with seven participating tribes (“2013
Survey”) and received reports from three tribes identifying
cultural resources and historic properties in the area. The
Oglala Sioux Tribe refused to participate because it
disapproved of the 2013 Survey’s methods and timing, as well
as the amount of compensation provided for participating.
Using the reports from the other tribes, the Commission
prepared and issued a final EIS in January 2014. A few months
later, it issued Powertech a license and finalized a
“programmatic agreement” that established a protocol for
dealing with NHPA historic properties discovered after
Powertech begins operating. See 36 C.F.R. §§ 800.4(b)(2),
800.14(b) (permitting the Commission to create protocols to
identify and protect historic properties after the issuance of a
license).
C.
The Tribe intervened before the Licensing Board assigned
to Powertech’s application and raised numerous challenges to
the application and the agency’s NEPA and NHPA processes.
The Board found only some of the Tribe’s contentions merited
a hearing, and later found most of those claims meritless. The
Board determined, however, that the license was issued without
individually consulting the Tribe as required by the NHPA and
without evaluating the Tribe’s cultural resources in the EIS as
required by NEPA. The Commission affirmed the Board’s
finding of NEPA and NHPA violations but left the license in
 7

place because the Tribe had failed to show “irreparable harm.” 2
See Oglala Sioux Tribe v. NRC (Oglala Sioux I), 896 F.3d 520,
522–23 (D.C. Cir. 2018); see also id. at 532–33 (rejecting the
Commission’s “irreparable harm” standard and remanding
without vacatur of the license).
The agency sought to remedy the NEPA and NHPA
deficiencies by meeting with the Tribe, teleconferencing, and
exchanging letters. Eventually, the agency offered to conduct
another survey. But the Tribe maintained its objections, leading
the agency to abandon its efforts, return to the Licensing Board,
and argue it had done enough to satisfy NEPA and the NHPA.
In its 2017 decision, the Board partially agreed, finding the
Commission had reasonably consulted with the Tribe for
NHPA purposes but still needed to work with the Tribe to
identify cultural resources under NEPA.
By March 2018, the agency and the Tribe had not agreed
to a specific survey method, but they had agreed to an overall
approach that involved a qualified contractor, other Lakota
Sioux tribes, tribal elders, and iterative opportunities to survey
the Dewey-Burdock area (“March 2018 Approach”). In June,
however, the Tribe switched course and proposed a different
approach that would have cost over $2 million to execute. The
agency rebuffed the Tribe’s proposal and returned to the Board,
arguing NEPA was satisfied. The Board concluded that while
the March 2018 Approach was reasonable and not negotiable
going forward, that Approach did not include a specific survey

2
Because agency proceedings were still pending, we did not reach
the merits of the NEPA and NHPA determinations in Oglala Sioux
I. See 896 F.3d at 527. On remand, the Commission left Powertech’s
license in place, but required Powertech to report 60 days in advance
of taking any action that would require a license to perform, avoiding
any potential harm to the Tribe’s cultural resources.
 8

method. Accordingly, the agency had to resume negotiations
with the Tribe to establish a survey method.
The agency and the Tribe unsuccessfully attempted to
reach accord yet again. In February 2019, the agency’s
contractor proposed a survey methodology that included a
blend of scientific methods used in other tribe-related surveys,
software to accurately document site locations, oral interviews
to supplement field observations, detailed steps to survey the
area, and a synthesized report that would explain the results
(“February 2019 Methodology”). The Tribe rejected that
methodology and tried instead to renegotiate the March 2018
Approach and raise NHPA issues already resolved by the
Board.
In its fifth and final decision, the Licensing Board
reaffirmed the reasonableness of the March 2018 Approach and
found that the February 2019 Methodology was reasonable as
well. Even though the agency had not carried out its survey, the
Board also decided the agency had satisfied NEPA because the
Tribe’s intransigence made its cultural resource information, in
effect, unavailable. The Board further reasoned that there was
no need for the agency to amend the EIS to explain the
unavailability of this information because the Board’s
administrative decisions had adequately supplemented the EIS.
The Commission affirmed the Board’s decisions, and the Tribe
petitioned this court for review.
II.
The AEA confers jurisdiction to review the Commission’s
final orders under the familiar standards outlined in the
Administrative Procedure Act (“APA”). See 42 U.S.C.
§ 2239(b)(1); see, e.g., Massachusetts v. NRC, 924 F.2d 311,
332 (D.C. Cir. 1991). Those standards also govern our review
of the Tribe’s NEPA and NHPA challenges. See United
 9

Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933
F.3d 728, 738 (D.C. Cir. 2019). We will therefore set aside the
Commission’s determinations if “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with” the
AEA, NEPA, or the NHPA. See 5 U.S.C. § 706(2)(A). Under
these standards, we do not supplant an agency’s “technical
judgments and predictions” so long as the agency’s decision is
“reasoned and rational.” Blue Ridge Env’t Def. League v. NRC,
716 F.3d 183, 195 (D.C. Cir. 2013) (cleaned up).
III.
The Tribe maintains that the Commission failed to comply
with NEPA’s requirements. NEPA is a purely procedural
statute that “does not mandate particular results, but simply
prescribes the necessary process.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989). Agencies may
decide that “other values outweigh the environmental costs”
and may move forward with a proposed action so long as they
undergo the necessary process. Id. Our role is “simply to ensure
that the agency has adequately considered and disclosed the
environmental impact of its actions and that its decision is not
arbitrary or capricious.” Indian River Cnty. v. U.S. Dep’t of
Transp., 945 F.3d 515, 527 (D.C. Cir. 2019) (cleaned up). We
apply these standards to the Tribe’s arguments regarding the
Commission’s failure to conduct a formal scoping of the
project’s impact, and the adequacy of the EIS with respect to
the Tribe’s cultural resources, the hydrogeologic effects of the
project, the disposal of byproduct material, and mitigation
strategies.
A.
At the outset of the NEPA process, Commission
regulations require the agency to conduct an “appropriate
scoping” of a project’s environmental impact. 10 C.F.R.
 10

§ 51.26(a). Scoping allows the agency, among other things, to
define the proposed action by identifying significant issues and
filtering out those that are peripheral. Id. § 51.29(a)(2)–(3). The
agency must also invite “[a]ny affected Indian Tribe” to
participate in the scoping process and must share a summary of
its conclusions with those who participated in the process. Id.
§§ 51.28(a)(5), 51.29(b). It is undisputed that the agency never
formally engaged in scoping nor provided a summary of its
findings. The Board initially rejected the Tribe’s request for a
hearing on scoping because it thought the agency’s
supplemental EIS was exempt from that process. The
Commission disagreed but thought the Board’s error was
harmless—the Tribe had “not demonstrated harm or prejudice
resulting from the lack of a separate, formal scoping process on
the site-specific [EIS].” 3
Before us, the Tribe renews this scoping challenge. We
need not decide the merits of this claim, however, because even
assuming the Commission erred in omitting a formal scoping
analysis, such error was harmless. Under the APA, courts take
“due account … of the rule of prejudicial error” when
reviewing agency action. 5 U.S.C. § 706. We have applied this
rule in the NEPA context when the agency has undertaken the
required analysis but “failed to comply precisely with NEPA
procedures.” Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C.

3
In Oglala Sioux I, we determined the Commission could not require
a heightened showing of “irreparable harm,” but we left open
whether there was some “version of a harmless error rule that the
Commission may apply.” 896 F.3d at 538. The Tribe argues the
Commission has no authority to make a harmlessness finding under
NEPA. Because we conclude the agency’s failure to conduct a
formal scoping process was harmless error under the APA, we do not
reach the question of whether the Commission has authority to
excuse violations of NEPA on similar grounds.
 11

Cir. 2006); see also Shinseki v. Sanders, 556 U.S. 396, 407
(2009) (explaining that harmless error review requires the
“case-specific application of judgment, based upon
examination of the record”). Here the agency placed notices in
local papers, received comments from those notices, and met
with various interested parties—including tribal authorities—
to gather information on the Dewey-Burdock Project before
drafting an EIS. As the EIS explains, “[t]he purpose of these
meetings was to gather additional site-specific information to
support the [Commission’s] environmental review.” Even if
these efforts did not precisely satisfy formal scoping
requirements, the agency’s efforts accomplished the same
objectives, and the Tribe makes no argument that the failure
impacted the project’s actual scope. See 10 C.F.R. § 51.29(a).
In the context of this site-specific EIS, there is no evidence that
the absence of formal scoping affected the agency’s NEPA
process or resulted in any prejudice to the Tribe. The Tribe’s
petition cannot succeed on this ground.
B.
The Tribe next argues the Commission failed to satisfy
NEPA because it did not adequately address the Tribe’s
cultural resources in the EIS. The parties do not question the
Tribe’s outsized historical connection to the Dewey-Burdock
area, and the importance of considering those resources in
reviewing Powertech’s application. But the Commission
affirmed the Board’s finding that this information was
effectively unavailable because of the Tribe’s intransigence.
This finding was made in published orders, but never
incorporated into the EIS.
NEPA requires agencies to take “a ‘hard look’ at ‘every
significant aspect of the environmental impact’ of a proposed
major federal action.” Indian River Cnty., 945 F.3d at 533
(quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97
 12

(1983)). An agency does not necessarily violate NEPA,
however, when it is unable to acquire information relevant to
its analysis. Regulations promulgated by the Council on
Environmental Quality (“CEQ”) state that when important
information is “unavailable,” agencies can satisfy NEPA by
explaining in the EIS why the information was unavailable and
what actions the agency took to address that unavailability. 40
C.F.R. § 1502.22(b) (2020). 4
The Tribe asserts the Commission is bound by Section
1502.22’s requirement that an unavailability statement be
within an EIS, but the Commission has maintained that as a
historically independent agency, CEQ regulations are only
non-binding guidance. We need not reach this thorny question 5
because even assuming the EIS failed to satisfy NEPA’s
requirements as interpreted by CEQ, we have repeatedly held
that remand is unnecessary if an agency has incorporated the
required analysis into a publicly accessible decision before the
EIS is challenged in federal court. NRDC v. NRC, 879 F.3d
1202, 1211 (D.C. Cir. 2018).
For example, when the Commission failed to adequately
discuss aquifer restoration in an EIS, we concluded that it was
sufficient for the Board to evaluate that information during a
subsequent hearing and present its findings in a publicly
accessible order. Id. at 1209–11. We explained the petitioners
“ha[d] not pointed to any harmful consequence of the

4
This provision has since been re-codified at Section 1502.21. See
Update to the Regulations Implementing the Procedural Provisions
of the National Environmental Policy Act, 85 Fed. Reg. 43,304,
43,366–67 (Jul. 16, 2020).
5
See, e.g., Food & Water Watch v. U.S. Dep’t of Agriculture, 1 F.4th
1112, 1119 (D.C. Cir. 2021) (Randolph, J., concurring) (questioning
CEQ’s authority to promulgate binding regulations).
 13

supplementation” in this manner, and there was “nothing to be
gained by remanding the matter to the Commission … to
consider the same information again.” Id. at 1210. Moreover,
“common sense counsel[ed] against prolonging this dispute by
requiring an utterly pointless proceeding on remand.” Id. at
1212; see also Friends of the River v. FERC (FOTR), 720 F.2d
93, 106–08 (D.C. Cir. 1983) (including the required analysis in
a publicly accessible opinion “composed after due
investigation and before the matter was brought to court” made
remand to supplement the EIS “pointless” and an “insistence
on form”).
For similar reasons, even if we assume the EIS
inadequately accounted for the unavailability of the Tribe’s
cultural resources, remanding for the agency to supplement the
EIS is unnecessary because the Licensing Board’s decisions,
which were summarily affirmed by the Commission, satisfied
any violation of NEPA. The Board explained the Tribe’s
cultural resource information was relevant and that of the tribes
affected, “[t]he Oglala Sioux Tribe ha[d] shown it has the most
direct historical, cultural, and religious ties to the area.” The
Board further explained the information was unavailable
because of “the Tribe’s demonstrated unwillingness or
unjustifiable failure to work” with the Commission, with no
“reasonable assurance” of a future accord. Without the Tribe’s
participation, its cultural resource information “would not
otherwise be obtainable” and thus was unavailable.
In short, the agency explained the unavailability of this
information and presented the substance of its findings in
publicly accessible decisions after on-the-record hearings. The
Tribe does not dispute the reasonableness or accuracy of the
Board’s explanations but maintains only that they had to be
within the EIS. In these circumstances, a remand for the agency
 14

to update its EIS and repeat the Board’s unchallenged findings
would be “utterly pointless.” See NRDC, 879 F.3d at 1212.
The Tribe contends that NRDC and FOTR do not apply
because, in those cases, the agencies eventually conducted the
required NEPA analysis, while here the Commission never
conducted a survey for the Tribe’s cultural resources. Yet
remand was unnecessary in those cases because the agency had
remedied the specific NEPA failure alleged by the petitioners.
NRDC, 879 F.3d at 1209–11; FOTR, 720 F.2d at 106.
Similarly, the Tribe alleged a failure to include an
unavailability statement in the EIS, and that specific failure was
remedied by the Board’s publicly accessible orders, making
remand unnecessary.
The Tribe maintains in the alternative that some
information about its cultural resources was available since the
Commission could have conducted oral interviews with tribal
members. But it is clear from the parties’ course of dealing that
oral interviews alone were never considered to be an adequate
means of gathering the required information. Rather, the parties
agreed that only the Tribe could accurately identify its cultural
resources and that a survey was necessary to adequately
identify those resources. Oral interviews would then be used to
supplement the Commission’s understanding after a
preliminary survey. Even the Tribe’s alternative proposal
placed oral interviews after, and supplemental to, an initial
survey. The EIS also suggested that oral interviews alone
would not be sufficient based on an earlier study of the area
that found that “most of the tribal members interviewed knew
their people had regular ceremonial, cultural, and religious
activity in the Black Hills … however, no one could pinpoint
present cultural, ceremonial, or religious use in the proposed
area.” Similarly, in affidavits tribal members averred general
 15

knowledge about cultural resources in the area but did not
identify specific resources.
Given this course of dealing, the Board determined that the
survey and oral interviews were an integrated approach to
discovering the Tribe’s cultural resources and concluded that,
without a survey, the information was unavailable. The
Commission affirmed, explaining that oral interviews alone
“would not have satisfied [the] criteria that the parties agreed
would be necessary” to identify cultural resources. Based on
the record and the parties’ understanding, we cannot say the
agency committed a “clear error of judgment.” See Marsh v.
Ore. Nat. Res. Council, 490 U.S. 360, 378 (1989).
The Tribe also faults the Commission for not spending
enough time or money on a survey and effectively forcing the
Tribe to subsidize it. Yet the Tribe cites no authority requiring
the agency to either compensate the Tribe for its participation
or to conduct a survey in a particular manner. NEPA requires
agencies to “utilize a systematic, interdisciplinary approach” to
identify and analyze environmental concerns, but agencies
have leeway to choose how to give “appropriate consideration”
to environmental concerns and “economic and technical
considerations.” 42 U.S.C. § 4332(2)(A)–(B). That the agency
exercised its discretion to use compensated surveys as a
method of gathering cultural resources does not entitle the
Tribe to demand more compensation or a different survey
method. Nor does the record support the Tribe’s assertion that
the Commission somehow “foist[ed]” its NEPA obligations
onto the Tribe and required the Tribe to subsidize the survey.
Cf. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,
985 F.3d 1032, 1048 (D.C. Cir. 2021). It planned to expend
substantial resources on the survey and coordinated with
Powertech to provide additional compensation for tribal
members that participated in the survey.
 16

The Tribe fails to make out a NEPA violation requiring
remand, and we find the Commission’s efforts to gather
cultural resources information were reasonable.
C.
The Tribe next faults the Commission’s analysis of
hydrogeologic data at the Dewey-Burdock Project. First, the
Tribe argues that the agency impermissibly delayed analyzing
water quality baseline data because it allowed Powertech to
gather data after the license was issued. This deferral, the Tribe
contends, violates NEPA by allowing the agency to “act first
and comply later.” See Oglala Sioux I, 896 F.3d at 523. While
the agency and Powertech agreed to post-licensing data
collection, that fact alone does not show the pre-licensing
hydrogeological analysis was insufficient. It is certainly
possible for an agency to adequately analyze hydrogeologic
data in an EIS and also contemplate further analysis during
operations. Here, the EIS included meticulous analysis of
contaminant levels present in the area’s groundwater and set
forth plans for restoring water quality using pre-licensing data.
Because water quality baselines cannot be “establish[ed]
definitively … until an in situ leach well field has been
installed,” it was not unreasonable for the agency to augment
pre-licensing data with further testing after Powertech installed
its well field but before it began operations. See Hydro Res.,
Inc., 63 N.R.C. 1, 6 (2006).
The Tribe also argues the Commission failed to analyze
the impacts of preexisting boreholes in the Dewey-Burdock
area and left these issues for after the license was granted. We
disagree. The record demonstrates the Commission gave these
impacts a hard look in the EIS: the agency identified 4,000
previously drilled exploration boreholes in addition to the 115
drilled by Powertech, analyzed the impact of those boreholes
on vertical leakage, and outlined steps to mitigate those effects.
 17

It was also entirely reasonable for the Commission to require
that Powertech fix improperly plugged historic boreholes after
receiving a license.
As to the hydrogeologic concerns raised by the Tribe, we
find the agency “adequately considered and disclosed the
environmental impact of its actions.” See Indian River Cnty.,
945 F.3d at 527 (cleaned up).
D.
The Tribe also raises a series of arguments challenging the
Commission’s treatment of the disposal of byproduct material
generated from uranium extraction. On three separate
occasions, the Tribe argued before the Licensing Board that
Powertech’s application and the EIS inadequately addressed
byproduct material. On each occasion the Board refused to hold
a hearing on those contentions, and the Commission affirmed.
The Tribe now argues the Board was required to hold a hearing
to address byproduct material because the issues presented a
genuine legal dispute. See 10 C.F.R. § 2.309(f)(1)(vi).
The Tribe first argues the agency erroneously issued
Powertech a license even though its application lacked a site-
specific disposal plan for byproduct material. This argument is
foreclosed by the plain text of the Commission’s regulations.
Although some license applications must include a proposal for
byproduct disposal, id. pt. 40 app. A, this requirement did not
apply to Powertech’s application. It applies only for “sites
formerly associated with [uranium] milling.” Id. § 40.31(h)
(emphasis added). As no one disputes the Dewey-Burdock
Project is a new uranium mining site, the Commission now
argues that Section 40.31(h) forecloses the Tribe’s argument.
Although the Commission’s interpretation of
Section 40.31(h) is plainly correct, this was not the reason the
Commission relied on below. In affirming the denial of a
 18

hearing, the Commission explained that the disposal plan
requirement and surrounding regulations in Appendix A “are
inapplicable to in situ recovery facilities.” 6 We review an
agency’s actions in light of the reasons offered at the time of
the agency’s decision, not its post hoc rationale offered in
litigation. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Here, however, the meaning of the regulation is entirely clear
and “there is not the slightest uncertainty as to the outcome of
[the] proceeding on remand,” so we “can affirm … on grounds
other than those provided in the agency decision.” Envirocare
of Utah, Inc. v. NRC, 194 F.3d 72, 79 (D.C. Cir. 1999) (cleaned
up); see also Manin v. Nat’l Transp. Safety Bd., 627 F.3d 1239,
1243 & n.1 (D.C. Cir. 2011) (noting this “limited exception” to
the Chenery principle). Affirmance in such cases “entails
neither an improper judicial invasion of the administrative
province nor a dispensation of the agency from its normal
responsibility.” Envirocare, 194 F.3d at 79 (quoting Henry J.
Friendly, Chenery Revisited: Reflections on Reversal and
Remand of Administrative Orders, 1969 DUKE L.J. 199, 211).
When an agency raises a purely legal argument for the first time
in litigation, a court may consider that argument if it is both
clearly correct and would render remand pointless under the
harmless error standard. See 5 U.S.C. § 706. The Dewey-
Burdock Project is indisputably not a former uranium milling
site, and therefore a remand for the Commission to address this
issue would be pointless.

6
The Commission relied on Hydro Resources, Inc., 50 N.R.C. 3, 8–
9 (1999), to conclude that the relevant regulations apply only to
traditional uranium mining, not in situ recovery operations. The
Tribe waited until its reply brief to challenge the Commission’s
reliance on this decision and thus forfeited its opportunity to contest
this aspect of the Commission’s reasoning. See Lake Carriers’ Ass’n
v. EPA, 652 F.3d 1, 10 n.9 (D.C. Cir. 2011) (per curiam).
 19

The Tribe next argues “[t]he EIS does not contain [a]
NEPA analysis of the disposal proposal, foreseeable impacts,
alternatives, or mitigation measures” related to byproduct
material. 7 We disagree. In the EIS, the agency thoroughly
analyzed solid byproduct material by calculating the total
byproduct accumulation of both Powertech’s preferred and
alternative disposal methods; explaining the process for
temporary storage and transfer to a licensed disposal facility;
identifying White Mesa as the presumed disposal facility and
ensuring that facility has the capacity to accept Dewey-
Burdock byproduct material; acknowledging that White Mesa
still needed state authorization to accept this material;
determining that transportation impacts will be small
regardless of which disposal site Powertech uses; explaining
the low risks and logistics of transporting byproduct material
to White Mesa in accordance with Department of
Transportation regulations; and mitigating any potential risk of
improper storage by requiring Powertech to acquire and
maintain a disposal contract before beginning operations. This
analysis more than adequately satisfies NEPA’s “hard look”
requirement and undercuts the Tribe’s claims that the agency
failed to address byproduct material in the EIS.
The Tribe also maintains the EIS did not include an
analysis of the impacts of Powertech failing to secure a disposal
contract before beginning operations. NEPA requires an
analysis of only those impacts reasonably likely to occur, not
impacts that are hypothetical. See Indian River Cnty., 945 F.3d
at 533 (“NEPA … requires that an agency take a ‘hard look’ at
the reasonably foreseeable impacts of a proposed major federal
action.”) (cleaned up). Yet any impacts related to Powertech’s

7
The Commission argues that the Tribe failed to raise these
arguments below, but the record demonstrates otherwise.
 20

failure to secure a disposal contract are purely hypothetical
because the conditions placed on Powertech’s license prohibit
initiating operations without first securing a disposal contract.
Without a disposal contract, there will be no operations, no
byproducts, and no related environmental impacts.
Accordingly, analysis on this issue was not required.
We are also not persuaded by the Tribe’s concerns that the
EIS did not include an analysis of the impact of stranded
byproduct material at the Dewey-Burdock Project should the
disposal contract fall through after operations have begun. The
Tribe relies on New York v. NRC, in which we found the
Commission ran afoul of NEPA by failing to “explain the
environmental effects of a failure to secure a permanent
facility” for spent nuclear fuel. 681 F.3d 471, 479 (D.C. Cir.
2012). But the facts of that case are easily distinguishable as
“there [was] not even a prospective site for a [disposal]
repository, let alone progress toward the actual construction of
one.” Id. at 474. By contrast, the Commission identified the
likely disposal site for Powertech’s byproduct material, and the
Tribe only speculates, with no record support, that Powertech
would be unable to secure a replacement disposal contract if
necessary.
Because none of the Tribe’s arguments related to
byproduct material raises a genuine dispute of law, the agency
was not required to hold an evidentiary hearing to address
them.
E.
The Tribe’s final NEPA challenges concern the adequacy
of the mitigation analysis in the EIS. Discussing mitigation
measures is an important aspect of an EIS because NEPA
requires agencies to “discuss the extent to which adverse
effects can be avoided” in “sufficient detail to ensure that
 21

environmental consequences have been fairly evaluated.”
Robertson, 490 U.S. at 352. Fairly evaluating mitigating
strategies does not, however, require an agency to have
“actually formulated and adopted … a fully developed plan
that will mitigate harm before an agency can act.” Id. at 352–
53. Like other aspects of an agency’s NEPA analysis,
mitigation efforts must be “adequately considered.” See Indian
River Cnty., 945 F.3d at 527. An agency cannot simply leave
mitigation measures as “TBD,” relying on “anticipated-but-
unidentified” measures without further analysis. Am. Rivers v.
FERC, 895 F.3d 32, 54 (D.C. Cir. 2018). The Commission
easily satisfied its obligation here.
The Tribe faults the agency for simply listing mitigation
measures without discussing their efficacy. The mitigation
analysis in the EIS, however, was not limited to the list
referenced by the Tribe. As the Board and Commission pointed
out in their decisions, the Tribe had “completely overlooked”
other portions of the EIS, “which contained extensive analysis
of mitigation measures” relating to issues such as “wildlife
protection, wellfield testing, air impacts, and historical well
hole plugging and abandonment.” Nonetheless, in its petition
for review, the Tribe continues to ignore the comprehensive
discussion of mitigation throughout the EIS and instead focuses
only on the EIS’s summary list of mitigation measures. The
Tribe fails to engage with the agency’s actual mitigation
analysis, and from our review of the record, the agency more
than satisfied NEPA’s “hard look” requirement.
We also disagree with the Tribe that the EIS improperly
deferred a mitigation analysis of cultural and historic resources,
groundwater quality, air impacts, waste disposal, wildlife
protection, and storm water control until after Powertech
obtained its license. For each of the Tribe’s identified issues,
the EIS extensively analyzed both impacts and mitigation
 22

measures. Ignoring these analyses, the Tribe relies on obscure
transcript quotes, letters, and responses to draft EIS comments.
But these excerpts do not suggest that the agency deferred its
NEPA mitigation analysis on any of the identified topics. Many
of these excerpts even cross-reference the substantive sections
of the EIS discussing relevant mitigation measures. More to the
point, an agency does not run afoul of NEPA when it
adequately analyzes mitigation measures and then provides
that it will continue to develop those plans after publishing an
EIS. And where, as here, the agency carefully analyzes
environmental impacts and ways to reduce or avoid those
impacts, additional efforts to mitigate impacts in the future
would seem to further the purposes of NEPA, rather than to
constitute a procedural violation.
***
In sum, the Tribe fails to demonstrate any NEPA
deficiencies that require setting aside the Commission’s
decisions.
IV.
The Tribe raises a series of challenges under the NHPA,
but these do not merit remand because the Commission
satisfied its statutory obligations.
First, the Tribe argues the agency did not adequately
consult with the Tribe. NHPA regulations require the agency
to give the Tribe a “reasonable opportunity” to identify historic
properties, to express concerns regarding those properties, and
to participate in the resolution of those concerns. 36 C.F.R.
§ 800.2(c)(2)(ii)(A). The Commission invited the Tribe’s
participation in the 2013 Survey and engaged with the Tribe
over a two-year period as described above. The Tribe’s refusal
to participate in the 2013 Survey and its challenges to the
agency’s methodology do not vitiate the reasonable
 23

opportunity the Tribe was, in fact, afforded. The Commission
satisfied its consultation obligations under the NHPA.
Second, the Tribe maintains the agency impermissibly
failed to survey the Dewey-Burdock area for the Tribe’s
historic properties. NHPA regulations permit an agency to
conduct a survey as part of its efforts to identify historic
properties, but agencies are free to use a survey or some other
method to gather information. See id. § 800.4(b)(1) (agency’s
identification efforts “may include … [a] field survey”)
(emphasis added). An agency may therefore satisfy its NHPA
obligations without conducting a survey or conducting it in a
specific way.
Finally, the Tribe suggests the agency impermissibly
postponed identifying historic properties until after Powertech
had begun operations. NHPA regulations, however, expressly
contemplate this approach. The Commission can employ a
phased identification and evaluation of historic properties
through a programmatic agreement “[w]hen effects on historic
properties cannot be fully determined prior to approval of an
undertaking.” Id. § 800.14(b)(1)(ii); see also id. § 800.4(b)(2).
The agency here recognized that some tribal historic properties
could be identified only after Powertech broke ground and
therefore sought to create a process whereby newly discovered
properties could be protected and evaluated for listing on the
National Register of Historic Places. The Commission
reasonably satisfied its obligations under the NHPA’s
regulatory scheme.
***
For the foregoing reasons, we deny the Tribe’s petition for
review.
So ordered.