United States Court of Appeals, District of Columbia Circuit
Natural Resources Defense Council and Powder River Basin Resource Council, Petitioners
U.S. Nuclear Regulatory Commission and United States of America, Respondents Strata Energy, Inc., Intervenor
October 10, 2017
Petition for Review of an Order of the United States Nuclear
Shannon Anderson argued the cause for petitioners. On the
brief were Howard M. Crystal and Geoffrey H. Fettus.
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.
Christopher S. Pugsley argued the cause for
intervenor-respondent. With him on the brief was Anthony J.
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.
GINSBURG, SENIOR CIRCUIT JUDGE
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.
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.
leach uranium mining (ISL mining) involves the extraction of
uranium from permeable uranium-bearing sandstone. The
extraction begins with the drilling of an injection well into
the sandstone formation, through which is pumped the
"lixiviant, " a liquid that separates the uranium
from the permeable sandstone. The uranium-permeated lixiviant
is pumped out through a recovery well and processed to
extract the uranium. A uranium mining project may comprise
hundreds or even thousands of such wells, grouped together in
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
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.
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).
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).
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.
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
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).
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