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

United States Court of Appeals, District of Columbia Circuit

January 19, 2018

Natural Resources Defense Council and Powder River Basin Resource Council, Petitioners
v.
U.S. Nuclear Regulatory Commission and United States of America, Respondents Strata Energy, Inc., Intervenor

          Argued October 10, 2017

         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.

          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

          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 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).

         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.

         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 ...


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