F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 3, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CITIZENS FOR A LTERNA TIVES TO
RA DIOA CTIVE D UM PING , BETTY
R ICHA RD S, and B OB GA STON,
Plaintiffs-Appellants,
v. No. 04-2314
U N ITED STA TES D EPA RTM ENT
OF ENERGY, and SAM UEL W .
BODM AN, * United States Secretary of
Energy,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CIV-99-321-M CA/ACT)
John A. M cCall, Albuquerque, New M exico on the briefs, for Plaintiffs-
Appellants.
Jennifer L. Scheller, Attorney, Environment & Natural Resources Division,
Department of Justice, W ashington, D.C. (Kelly A. Johnson, Acting Assistant
Attorney General, and John A. Bryson, Attorney, Environment & Natural
Resources Division, Department of Justice, W ashington, D.C., David C. Iglesias,
United States Attorney, and Raymond Hamilton, Assistant United States
Attorney, Office of the United States Attorney, Albuquerque, New M exico, and
Elizabeth C. Rose, Of Counsel, Office of the Chief Counsel, United States
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Respondent
requests that Samuel W . Bodman be substituted for W illiam B . Richardson as the
appellee in this case.
Department of Energy, Carlsbad Field Office, Carlsbad, New M exico, with her on
the brief), for Defendants-Appellees.
Before M U RPH Y, BROR BY, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
After three environmental impact statements spanning two decades, the
Department of Energy (DOE) approved operation in 1998 of the W aste Isolation
Pilot Plant (W IPP), a nuclear waste repository located in southeastern New
M exico. Citizens for Alternatives to Radioactive Dumping (Citizens) sought to
enjoin the facility’s operation under the National Environmental Policy Act
(NEPA ). Citizens argued DOE relied on faulty data regarding the subsurface
geomorphology of the site in its environmental review, thereby under-
representing the environmental hazards of waste storage at the site. The district
court denied the requested injunction, finding DOE’s actions were not arbitrary
and capricious.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district
court’s decision.
I. Background
The Facility and Location. Congress approved W IPP near Carlsbad, New
M exico in 1979 to provide “a research and development facility to demonstrate
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the safe disposal of radioactive waste resulting from . . . defense activities and
program s.” Pub. L. 96-164, 93 Stat. 1259 (1979). One year later, in 1980, DOE
completed its first environmental impact statement for the project as required by
N EPA . In 1990, after the completion of most of the W IPP construction, DOE
prepared a second supplemental environmental impact statement before facility
testing would begin.
Finally, before the facility would begin accepting waste, DOE conducted a
third impact statement, the Disposal Phase Final Supplemental Environmental
Impact Statement (SEIS-II). 1 It published the SEIS-II record of decision in
January of 1998, concluding disposal of radioactive wastes at W IPP w as the
preferred alternative to other options and authorizing disposal at the site. 63 Fed.
Reg. 3,624 (Jan. 23, 1998). In conjunction with the SEIS-II, Congress ordered
the Environmental Protection Agency to conduct a parallel environmental
assessment. The Agency’s review concluded with a finding in 1998 that W IPP
would comply with the radioactive waste disposal regulations promulgated by the
Agency. 63 Fed. Reg. 27,357 (M ay 18, 1998).
The waste repository for the W IPP is located 2,150 feet underground, in the
Salado Formation, a massive salt bed with low permeability that impedes
groundwater flow in and out of the W IPP repository. About 1,400 feet above the
1
The SEIS-II’s administrative records fill over 30 boxes. Among the
issues studied were site geology and hydrology, worker safety, environmental
justice, and transportation.
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W IPP is a fractured layer of dolomite rock called the Culebra Dolomite. The
Culebra is the first layer above the Salado Formation with a continuous body of
groundwater. Above the Culebra sits 86 feet of claystone, mudstone, and
siltstone sandwiched between layers of anhydrite called the Tamarisk M ember.
Above the Tamarisk M ember, another layer of dolomite, the M agenta Dolomite,
runs from 621 to 596 feet below the surface. These formations are arrayed as
follow s:
G eolog ic L ay er D ep th B elow the Surface in F eet
S urface to F o rty-N iner 0 to 538
F o rty-N iner 538 to 596
M a g en ta D o lo m ite 596 to 621
T amarisk 621 to 707
C ulebra D o lo m ite 707 to 729
L o wer P art o f Ru stler F orma tion 729 to 844
U p p er P art o f S alad o F orma tion 844 to 1,343
M cN u tt P o tash 1,343 to 1,727
L o wer P art o f S alad o F o rma tion 1,727 to 2,650
W IP P Site 2,150
Sourc e: A ple . Supp. A pp. at 144
The possibility of radioactive material from the W IPP escaping into the
local environment via groundwater was a risk factor considered by the DOE in
SEIS-II. In modeling the risk, the DOE chose to investigate the Culebra Dolomite
in detail, but not the M agenta, because prior studies included in the SEIS-II
record led DOE to conclude the Culebra was the “most transmissive unit at the
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W IPP site.” 2 Aple. Supp. App at 157. The agency arrived at this conclusion
based on a record that established, “[i]n most locations, the hydraulic
conductivity of the M agenta is one to two orders of magnitude less than that of
the Culebra.” Id. at 159. M oreover, the radio-nuclides stored at W IPP would
need to make their way through both the Culebra and the Tamarisk, which
“functions as a confining layer” due to its low permeability, before reaching the
M agenta. Id. at 158. Failure to model the M agenta is the basis for Citizens’
appeal.
Citizens’ Lawsuit. Citizens first brought comm on law public nuisance
claims in New M exico state court in 1999, seeking to enjoin the W IPP facility.
DOE removed the case to federal court, which denied the request for an
injunction. Citizens subsequently amended their complaint to assert an additional
claim that the SEIS-II inadequately complied with NEPA . Citizens had
previously participated in the public comment phase of SEIS-II. As part of their
NEPA claim, Citizens sought to inject evidence outside the administrative record
based on research conducted by an expert consultant.
The extra-record evidence allegedly came to light after the record for SEIS-
II w as completed. Citizens’ consultant, Dr. Richard Hayes Phillips has actively
studied the geomorphology around the W IPP site for twenty years. In an affidavit
2
Transmissivity is the rate at which water passes through a unit of
thickness. It can be measured in square feet per day or equivalent units.
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prepared for this litigation, he claims during that time to have “witnessed a
pattern of lies and deceptions designed to disguise the true hydrology of the . . .
site.” Aplt. App. at 61. Dr. Phillips supports these allegations for purposes of
this appeal with two charges: H e points to (1) a 1983 study of the M agenta
included in the SEIS-II that relies upon a miscalculated data point at a test well
(H-3) drilled near W IPP, thereby understating the groundwater transmissivity of
the formation; and (2) penciled editing marks made to include the miscalculation
in the study, from which Phillips arrives at the conclusion of “data falsification.”
Id.
The district court upheld DOE’s record of decision. The court concluded
(1) the decision was not arbitrary and capricious, and (2) there was no reason to
consider the proffered extra-record materials in its review. In particular, the court
carefully review ed a number of charges by Citizens that SEIS-II w as inadequate
in the way it analyzed the facility’s hydrology, geology, and possible release
scenarios. The court, while acknowledging the scientific debate surrounding
many of the issues, ultimately found support in the administrative record for the
decisions made by DOE.
On appeal, Citizens has narrowed the issues to the following: (1) the
district court should have admitted extra-record evidence regarding allegations of
tampering with and miscalculation of data involving groundwater studies in the
M agenta formation; and (2) DOE was arbitrary and capricious in its evaluation of
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the record by not further investigating the properties of the M agenta based on the
allegations raised by Dr. Phillips. 3
II. Discussion
A. Extra-Record Evidence
Judicial review of agency action is normally restricted to the administrative
record. Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th Cir. 2004). It is only in
“extremely limited circumstances, such as where the agency ignored relevant
factors it should have considered or considered factors left out of the formal
record” that we will consider extra-record evidence. Id. (internal quotations
omitted).
W e may also delve outside the administrative record w hen there is a
“strong showing of bad faith or improper behavior.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). In dealing with scientific and
technical evidence, extra-record evidence “may illuminate whether an
3
Citizens also contends the district court improperly granted summary
judgment on their NEPA challenge. Although Citizens is correct that summary
judgment is inappropriate for judicial review of NEPA claims, see Olenhouse v.
Commodity Credit Corp., 42 F.3d 1560, 1579–80 (10th Cir. 1994), the district
court did not grant summary judgment. It is clear from the court’s order that it
relied on the administrative record in reaching its final judgment pursuant to the
Administrative Procedures A ct. [M em. Op. and Order at 55.]
DOE argues that Citizens did not present its challenge during the open
public comment period and its objections should therefore be forfeited. The
district court did not directly address this issue and DOE did not cross-appeal the
issue. Since DOE’s actions were not arbitrary and capricious in any event, we do
not address DOE’s forfeiture argument.
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[environmental impact statement] has neglected to mention a serious
environmental consequence, failed adequately to discuss some reasonable
alternative, or otherwise swept stubborn problems or serious criticism . . . under
the rug.” Lee, 354 F.3d at 1242 (internal quotations omitted). W e review a
district court’s determination of whether or not to exclude extra-record evidence
for abuse of discretion. Valley Cmty. Pres. Comm’n v. M ineta, 373 F.3d 1078,
1089 n.2 (10th Cir. 2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d
660, 665 (9th Cir. 1998)).
To support its claim the administrative record should be supplemented,
Citizens contends water flow data for the M agenta was concealed and
misrepresented. Relying on the allegations contained in Dr. Phillips’s 1999
affidavit, Citizens claims the studies based on this misrepresentation led the
government to wrongly assume the Culebra was the most transmissive geological
layer in the storage facility’s proximity. As a result, DOE decided it need not
model the transmissive properties of the M agenta layer. Citizens argues that Dr.
Phillips’s charges satisfy its obligation to make “a strong showing that DOE
engaged in bad faith and improper conduct,” and therefore additional evidence
should be produced in the administrative record. Aplt. Brief at 19.
W e disagree. Upon examining Dr. Phillips’s affidavit, we find nothing to
justify the inclusion of extra-record evidence to demonstrate gaps or inadequacies
in the SEIS-II.
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Dr. Phillips makes two claims of misrepresentation.
First, he asserts he discovered a document as part of his research that
evidences tampering with a hydrology report relied on by DOE. He supports this
allegation by pointing to handwritten editing marks (he calls them “alterations”)
on a draft of a 1983 report which was eventually included in the SEIS-II.
According to Dr. Phillips, the handwritten notations demonstrate the author of the
final report altered transmissivity data for the M agenta dolomite downward from
a high of 40-square feet per day to a high of 1-square foot per day. The
significance of this data, w hich he claims D OE relied on in dispensing with
further modeling of the M agenta, is to make the M agenta appear more
impermeable than it really was.
Second, he claims the 1983 report relied on these altered calculations for
one of the test wells drilled into the M agenta, well number H-3, even though the
calculations are inconsistent with the raw transmissivity data collected in 1978.
The 1983 report calculated a transmissivity at H-3 of 0.1-square feet per day for
the M agenta, but Dr. Phillips calculated a rate of 330-square feet per day using
the underlying raw data, which he argues is four times more transmissive than the
highest rate found anywhere in the Culebra. Dr. Phillips alleges this discrepancy
at one well (out of the fifteen drilled into the M agenta) demonstrates the
M agenta’s transmissivity numbers were falsified, thus establishing bad faith and
improper conduct on the part of the DOE.
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The district court disagreed. It concluded, in reviewing the agency record,
that the handwritten alterations resemble proofreading and peer review marks:
insufficient in themselves to demonstrate a sinister motive. As to the
transmissivity calculations, the court found the raw data had been available for
twenty years, which was plenty of time for Citizens to review it and comment on
it for the administrative record during the normal course of review.
W e have carefully reviewed the record and agree the extra-record evidence
does not warrant inclusion in the administrative record. Although our review is
thorough, “designation of the Administrative Record, like any established
administrative procedure, is entitled to a presumption of administrative regularity.
The court assumes the agency properly designated the A dministrative Record
absent clear evidence to the contrary.” Bar M K Ranches v. Yuetter, 994 F.2d 735,
740 (10th Cir. 1993) (citation omitted). Citizens has not overcome the
presumption of regularity, nor made a “strong showing” of improper behavior in
development of the record.
First of all, we are not convinced that editing marks on a draft report show
anything conclusive. Citizens has pointed to no evidence that the final report did
not represent the author’s findings and analysis. It is hardly surprising that the
study went through a number of rounds of editing; on this record, nothing can be
inferred from either the existence of the draft or of handwritten edits. Citizens
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has made nothing more than a speculative claim uncorroborated by evidence of
wrongdoing.
M ore importantly, the 1983 M agenta study does not stand alone in the
administrative record. The record of decision contains a number of other studies
regarding the M agenta, all of which were considered by the DOE’s decision-
making process. Citizens fails to demonstrate the independent significance of the
1983 report or how it decisively undercuts the entire volume of data considered
by DO E.
Confusion centering on one data point from one well does not establish bad
faith. As w e discuss below, the agency had sufficient evidence to support its
decision, and, nothing in the record even suggests SEIS-II relied on the
challenged data. Citizens has not carried its burden to demonstrate the record of
decision was falsified or altered in bad faith.
W ithout more, the district court did not abuse its discretion in rejecting
Citizens’ proffer of extra-record evidence in its review of the agency decision. 4
B. NEPA Compliance
“The role of the courts in review ing compliance with NEPA ‘is simply to
ensure that the agency has adequately considered and disclosed the environmental
4
Citizens also argues that DOE failed to rebut its allegations in its
briefing. But the burden was not on DOE to rebut the charges, it was on Citizens
to show bad faith or improper behavior. It did not do so. And even if we did
allow in the extra-record evidence, as we explain in the next section, the data do
not establish that the D OE’s decision was arbitrary and capricious.
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impact of its actions and that its decision is not arbitrary and capricious.’” Utah
Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1208 (10th Cir. 2002)
(quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87,
97–98 (1983)). Under this standard, we consider whether “the [agency’s]
decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Overton Park, 401 U.S. at 416. “An agency
action is arbitrary and capricious if the agency . . . entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or [if the decision] is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.” Utah Environmental Congress v. Richmond, __F.3d ___ (10 th Cir.
2007) (internal quotations omitted). Our review of a district court ruling on
NEPA compliance is de novo. Utahns for Better Transp. v. U.S. DOT, 305 F.3d
1152, 1161 (10th Cir. 2002).
W hile NEPA advises caution by ordering review of the potential
environmental consequences of federal action, it also recognizes the flip-side to
this precautionary principle: that adverse consequences, losses, and other hazards
may result from federal inaction. “So long as the record demonstrates that the
agencies in question followed the NEPA procedures, which require agencies to
take a ‘hard look’ at the environmental consequences of the proposed action, the
court will not second-guess the wisdom of the ultimate decision.” Id. at 1163
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(citing Robertson v. M ethow Valley Citizens Council, 490 U.S. 332, 350 (1989)).
Perfection is not required by the N EPA process.
“W e apply a rule of reason standard (essentially an abuse of discretion
standard) in deciding whether claimed deficiencies in a [final] EIS are merely
flyspecks, or are significant enough to defeat the goals of informed
decisionmaking and informed public comment.” Lee, 354 F.3d at 1237 (citations
omitted). Our deference is “especially strong where the challenged decision[]
involve[s] technical or scientific matters within the agency’s area of expertise.”
Utah Environmental Congress, ___F.3d at ___.
Applying these principles, DOE’s approval decision was not arbitrary and
capricious. DOE explained as part of the administrative review that it chose not
to model the M agenta dolomite because the Culebra was the “most transmissive
unit at the W IPP site.” Aple. Supp. App at 157. It based this conclusion on
various studies that relied on data generated from test w ells drilled at the site.
Researchers drilled fifteen wells into the M agenta to analyze its transmissivity.
[A ple. Supp. App. at 159.] These wells generated data over a number of years,
which, as the SEIS-II points out, indicated the M agenta’s overall transmissivity
was lower than recorded at H-3 and lower than comparative spots in the Culebra.
Contrary to Citizens’s allegations, the SEIS-II did not ignore data regarding
the M agenta layer. In fact, the administrative record reported transmissivity rates
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in the M agenta as high as 372-square feet per day, 5 even above the 330-square
feet per day calculations that Citizens claims were left out of the 1983 report and
ultimately the SEIS-II. [Id. at 159.] The SEIS-II concluded that “[i]n most
locations” the “the hydraulic conductivity of the M agenta is one to two orders of
magnitude less than that of the Culebra.” Id. at 159. And, importantly, the
“M agenta does not have hydraulically significant fractures in the vicinity of
W IPP.” Id.
As to the test well data, follow-up studies conducted in 1988 and 1989
collected new data on the M agenta’s transmissivity at test well H-3. The new
information found transmissivity higher than the 0.1-square feet per day of the
1983 report, but still less than 0.2-square feet per day. [A ple. Supp. App. at 198.]
These new studies, which appeared as part of the SEIS-II record, [Aple. Supp.
App. at 166] create, at best, a debate over the proper interpretation of H-3 data
between the numbers cited by Dr. Phillips and the follow-up reports. In such a
debate, the agency w as free to side with the reasonable opinions of its own
qualified experts. 6 “W hen specialists express conflicting views, an agency must
5
This figure was converted from feet per second in the SEIS-II to feet per
day for this opinion.
6
The district court agreed that Dr. Phillips’s extra-record evidence
demonstrated at most “a dispute among members of the scientific community
concerning the interpretation of hydrologic and geologic data regarding the W IPP
site.” M em. Op. and Order at 26. Citizens contends the transmissivity
calculation from well H-3 is not a matter of opinion open to dispute, but rather an
(continued...)
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have discretion to rely on the reasonable opinions of its own qualified experts
even if, as an original matter, a court might find contrary views more persuasive.”
M arsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). Even if the
M agenta was more transmissive at well H-3, sufficient information from the other
fourteen w ells in the record support the conclusion that the Culebra was the most
transmissive layer overall. DOE neither failed to consider the M agenta, nor failed
to consider data counter to the evidence before it.
Furthermore, transmissivity was not the only factor the DOE relied upon in
modeling the Culebra instead of other layers. The DOE also focused on the
Culebra because it is the closer formation to W IPP storage. 7 Radio-nuclides
stored at W IPP w ould need to make their way through both the Culebra and the
low permeability of the Tamarisk before reaching the M agenta. If w aste w ere
unlikely to escape the Culebra, it was even less likely to escape the overlying
M agenta. The DOE both considered and disclosed the environmental impact of
its m odeling decision, in compliance with NEPA.
6
(...continued)
empirical matter. The district court was not claiming the 1978 transmissivity
reading from well H-3 was in dispute, however; it was suggesting a reasonable
dispute existed regarding the overall transmissivity of the Culebra versus the
overall transmissivity of the M agenta in light of Phillips’s evidence.
7
“The Rustler Formation is the most significant hydrogeologic unit above
W IPP because it contains the Culebra Dolomite, the first laterally continuous
hydrologic unit above the Salado Formation” where W IPP w ould store the
radioactive waste. Aple. Supp. App. at 156.
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In sum, DOE was not arbitrary and capricious in its review of the
geological data before it. It did not ignore the M agenta layer in its evaluation,
but rather provided careful and reasoned explanations for modeling the C ulebra
and not the M agenta. The i’s were dotted, the t’s were crossed, and NEPA
requires nothing more. On this record, we cannot discern that DOE made a “clear
error in judgment” in concluding that its site modeling was adequate.
III. Conclusion
For the above reasons, we find that DOE was not arbitrary and capricious
in its environmental review , and the district court did not abuse its discretion in
rejecting the extra-record evidence. W e therefore A FFIRM the district court
decision.
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