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Case number 16-1298, Natural Resources Defense Council at L Petitioners versus U.S.

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Nuclear Regulatory Commission at L. Ms.

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Anderson for Petitioners, Mr. Michel for the respondents, Mr. Pugsley for the intervener.

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Good morning.

[00:01:14] Speaker 06:
Good morning.

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May it please the court, Shannon Anderson on behalf of Petitioners.

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I have come to you today from Wyoming to talk about how the NRC violated NEPA when it issued a license to mine and process uranium.

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First, NRC violated NEPA's twin aims of informed decision making and public disclosure because the license, which was the major federal action subject to NEPA,

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was not supported by a complete EIS that addressed all significant environmental impacts.

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This court has repeatedly held that under NEPA, an agency must consider every significant aspect of the environmental impact of a proposed action prior to its decision.

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The hearing board, after affirming that there was a serious omission regarding groundwater impacts analysis in the EIS,

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refused to reverse the license and remand to NRC staff to conduct the hard-look analysis necessary to support its decision.

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I'm sorry, serious is your characterization.

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That's correct.

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It was a serious omission.

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And the board found... But the board found that it was not serious enough to require a modification or renewal of the EIS process, right?

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Your Honor, the board found that the analysis was necessary to support the agency's decision.

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It further analyzed the significance of the information, and it created some rationalizations for that.

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But at the forefront, it found that the information was necessary to the decision, and therefore the board had to supplement the decision in order to justify it, which is illegal under NEPA because the decision had already been made.

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It was like the board went back to a train station, but the train had already left, and you can't tack on another car at that time.

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Well, the train had left provisionally.

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Right?

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So I mean, if I understand your argument, it completely bars a process in which there's a provisional decision with review of it afterwards, which can take account of new information.

[00:03:32] Speaker 06:
Your Honor, the decision was not provisional.

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The license that was issued in April of 2014, a full five months before the hearing, was a final agency action.

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It gave a right and a remedy to the company to start processing and mining uranium before the hearing was made.

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But it's in effect provisional.

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Because if the hearing board concludes that that decision was improper and can't be rectified before the hearing board, then that will no longer be a valid license.

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Sure.

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And, Your Honor, that's the same as this court right here today.

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You can remand it back to the agency, and that license would no longer be in effect.

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But that doesn't mean it wasn't in effect prior to your decision.

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And so that's the issue here, is that the license was in effect

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prior to the hearing.

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All of the cases relied on by the government deal with the situation where the decision wasn't made at the time of the hearing.

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That's not what we have here.

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We have a license that was issued prior to the hearing.

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It wasn't labeled draft.

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It wasn't provisional.

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It was a final decision that was made.

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I'm sorry, when you say it wasn't provisional, you mean what?

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It had force and effect.

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And it was the major federal action subject to neither.

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It is obvious to me, anyway, that decisions which have force and effect are, if so facto, not provisional.

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At least in the sense of being subject to revision.

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To look back.

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And perhaps even revocation, right?

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Sure.

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And it was subject to an administrative process.

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You or the staff brought some further information to bear.

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And that was then considered that information.

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That's correct, Your Honor.

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But at that time, NEPA had already been completed.

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I understand that.

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But just in terms of functional activity here, when new information became available, it was fully, inadequately in your view, but fully, as far as the agency is concerned, considered.

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Yeah, and to be clear... And the illicit license was amended in some respects.

[00:05:40] Speaker 06:
Yeah, and to be clear, Your Honor, it was never new information.

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What it was, in fact, was information that should have been considered at the outset in the NEPA process.

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It was the very basis of our contention under NEPA that this was an important part of the environmental analysis of the agency.

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I understand your legal argument, and I obviously will decide it on that basis, but I want to understand the practical harm that you see arising from the way the agency proceeded here.

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Sure, Your Honor.

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So this goes to the very heart of the agency's decision.

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This is a mine that mines uranium in groundwater.

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So the level of uranium that is present after that mining operation is the very environmental harm that the agency has a duty to minimize and prevent.

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And by ignoring the probable consequence of the level of uranium in groundwater after mining, the agency ignored what it is supposed to prevent and minimize environmental harm.

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What is the harm?

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It looks to me like there's no harm, no foul.

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There was a procedural

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peculiarity, let's call it even a deviation from appropriate procedure, although that's not clear.

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But ultimately, everything was considered, not to your liking, but considered.

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So focusing on your procedural objection, I'm not sure why there's anything left to be done.

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Yeah, and Your Honor, part of it is that we don't want to... What would you have us do?

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What would you have the agency do?

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Right, so we can't prejudge any proposes that would happen on remand.

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Why?

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Is there something they haven't considered?

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Well, they haven't considered, so there's two parts here.

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There's the information that the agency provided the board, and then there's information that the petitioners also provided the board, which showed that the agency seriously miscalculated the level of environmental harm.

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to groundwater.

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And we believe if the process was remanded back to the agency, all of this would be better considered through the agency's decision.

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But at the very least, it would be disclosed to the public, and there would be that level of public disclosure.

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Is there something that has not been disclosed to the public?

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It hasn't through NEPA, in the proper way.

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What has not been disclosed?

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The level of groundwater contamination from uranium that is a probable consequence of the agency's action.

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Isn't that simply a question on which there are a range of predictions?

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And I take it your prediction is more dire than the agency's prediction.

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I get a certain amount of data in terms of historical record on that.

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What remains to be added?

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Your Honor, what remains to be added is the decision that flows from that information.

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So, you know, NEPA isn't just about information being out there.

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It's the meaning that comes from NEPA is that that information was considered as part of the agency's decision.

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Here it wasn't.

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Because they modified the license, I mean, it wasn't necessary to demonstrate that they considered it, but it's strong evidence from the fact that they modified the license that they considered it.

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Right, and the license modification after the hearing had nothing to do with this issue.

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It was procedural modification.

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It was related to another contention that we had brought.

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It wasn't related to this contention.

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The record of decision that was modified just incorporated that there was a hearing and there was something that resulted from that hearing.

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Didn't actually analyze the evidence or anything that was brought forth in that hearing process.

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And importantly, the NEPA document, the EIS itself, was never modified after the hearing.

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It was never supplemented or augmented.

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That sounds like a somewhat abstract value.

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There are all these cases, and I think you cite several of them, that say we can't have post-hoc reasoning.

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But whenever the court remands, that's exactly what you have.

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post-hoc reasoning, and what the court was really aiming at was representations by agency counsel as opposed to a decision by the agency.

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But here you have a decision by the agency.

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Nobody's relying on representations of agency counsel.

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Right.

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So what happened, though, is that the time the agency made its decision to issue the license, this information was not before the agency.

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It wasn't considered by the agency, the NRC staff, as part of their major federal action, which was to issue the license.

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It was post hoc provided at the hearing to the board.

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But I'm trying to convince you that that ringing phrase does not mean what it appears to mean.

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And if it did, all these remands that courts incessantly engage in would refute it.

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Right.

[00:10:48] Speaker 06:
Well, there's a difference between, I would say, you ordering the agency to look at it again versus them saying they needed to and they just didn't.

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So here, again, we have... I know.

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I don't know.

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You really lost me.

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We tell them to say, we need this, and then they'll look at it in a different way in their post-hoc review.

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It would be a post-hoc review, but that's the very purpose of your review here today, is to make sure the agency followed the law.

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As Judge Williams says, the post-hoc is usually agency counsel coming up with reasons for the agency decision.

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That's what we're usually referring to here.

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It seems to me you want to do over, because maybe somehow you can get a different result.

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before the staff, right?

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That they wouldn't issue the license this time, but I mean, they've already, they issued it, the board fixed the defect, colloquial speaking.

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Yeah, I mean, we want the NEPA process to have meaning.

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And what's happened is the NRC has... You don't really just want it to have meaning.

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You want it to have a different result, right?

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Well, NEPA doesn't mandate results.

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I mean, that's not what we're asking for.

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What we're asking for is the agency to take that charge under NEPA seriously, to do what every other administrative agency does, which is to make sure that the environmental information that's necessary for them to consider as part of their decision is considered as part of their decision.

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And here, they provided it after the fact at the hearing.

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The board said it was necessary.

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The staff provided testimony because it was necessary.

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But it was all after the fact.

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It wasn't as part of that decision.

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And so what we'd like you to do is to remand it back to the agency to show that they have to look at this as part of their decision.

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They can't look at it after the fact.

[00:12:41] Speaker 02:
We gave several reasons for thinking that was a poor idea in the Friends of the River case.

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remanding it to the agency, which had already considered all of the things put before them, to take a look at it again would be a useless exercise.

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And we said it would breed cynicism about the process.

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It would consume resources unnecessarily.

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How is this any different in this case?

[00:13:05] Speaker 06:
Well, Your Honor, I think it's important to differentiate the two questions before you.

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One is whether there is a violation of NEPA.

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And then the second is, what is the remedy that stems from that?

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And the first issue, we think there is a very clear violation of NEPA.

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Again, the information wasn't part of the agency.

[00:13:24] Speaker 02:
Of course, if there's no remedy, then we really don't have to deal with the first question.

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I would disagree, Your Honor.

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I think it's very important to separate out the questions.

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And in order to give to NEPA any kind of meaning under the NRC's process, you have to make the agency follow it.

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And here they just didn't.

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And they provide all these rationales and all these cases that don't have any precedent to their decision.

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Do you have a right to a hearing under NEPA?

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So the hearing process wasn't the NEPA document.

[00:14:00] Speaker 02:
There is no hearing process for NEPA, is there?

[00:14:03] Speaker 02:
No, not generally.

[00:14:04] Speaker 02:
The agency just does its analysis, makes its final decision, and is subject to review.

[00:14:09] Speaker 06:
That's true.

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And under the NRC's procedure... So here, the agency did its analysis, made its decision, and it's subject to review, and you raise some reasons, substantive objections, to their conclusions.

[00:14:22] Speaker 06:
Right.

[00:14:23] Speaker 02:
So there's still a lacuna here as to why the procedure matters at this point.

[00:14:30] Speaker 06:
It matters, Your Honor, because first of all, the project isn't yet completed.

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So it's a large project.

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There's about 25 well fills that are anticipated, about 2,000 wells.

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That's why the EIS matters, and getting it right matters.

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But I don't know why that means you need this procedure, another procedure when there's been one.

[00:14:51] Speaker 06:
Yeah, and Your Honor, we just, we can't predict the need for process that would occur on remand.

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I mean, we can't assume the agency would do one thing or the other.

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Again, I mean, what we want is we want the agency to consider this information and we can't prejudge what will happen when they consider it.

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To be more specific, what is the information they have not considered but should be ordered to consider?

[00:15:11] Speaker 06:
So the information relates to the level of groundwater contamination from uranium that is likely to occur after this process is complete.

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And what has happened in every other single uranium mine in Wyoming, my state, and throughout the West is that no company has restored groundwater to pre-mining conditions.

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There's always been a level of groundwater contamination that's been higher than what's called baseline.

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So the staff's testimony showed that in some cases that's 71 times the level of baseline.

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So there's a level of groundwater contamination from uranium that's thereafter mining.

[00:15:51] Speaker 02:
So the information that was not considered is information about other mines and the experience with them.

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That's correct, based on the predictive outcome that would happen at this mine.

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So it's a probable consequence of mine.

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This is exempt aquifers or neighboring aquifers?

[00:16:10] Speaker 06:
No, so this aquifer itself, and the level of groundwater that's in this aquifer, but also once the mining process stops, there's something called a Kona Depression, which kind of keeps the contamination contained during mining, but once mining stops, that goes away, and contamination can go beyond the mining area as well.

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Right, so you want...

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predictions were made as to how bad both of these effects would be, right?

[00:16:44] Speaker 05:
And for the exempt aquifer, it seems to be, as Judge Ginsburg said, no harm, no foul, because it's all hopeless anyway, right?

[00:16:52] Speaker 06:
Your Honor, that's not exactly correct, because the agency still has regulations that deal with groundwater restoration, even for an exempt aquifer.

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So the company still has a duty to restore that aquifer.

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And your contention is that because some companies have been bad guys and not restored reasonably, not only will this company fit into that pattern, but that's what the agency must predict and act on such a prediction.

[00:17:27] Speaker 06:
That's correct, Your Honor.

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And the board agreed with petitioners throughout the entire three-year hearing process on that point.

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that every single other company has led to groundwater contamination.

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And so the NRC's goals of groundwater restoration to baseline standards are meaningless because they all go through this other path that allows them to leave residual contamination in the aquifer.

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This is the ACL path.

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That's correct.

[00:17:55] Speaker 05:
Okay, so they confronted that, right?

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they didn't confront what a probable ACL would be.

[00:18:02] Speaker 06:
So this is the alternative concentration limit that would be allowed by the agency.

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And what the board found, and what, based on petitioners' arguments, was that the agency had a duty to consider the probable consequences of its decision, which were, in fact, that there would be this level of groundwater contamination based on the historic practice and history of other mining operations.

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that it was probable, it was reasonably foreseeable that there would be groundwater contamination.

[00:18:39] Speaker 04:
We'll give you a few minutes on a rebuttal.

[00:18:41] Speaker 00:
Okay, thank you so much.

[00:18:57] Speaker 01:
Morning and may please the court.

[00:18:59] Speaker 01:
I'm Eric Michael here on behalf of the federal respondents.

[00:19:04] Speaker 01:
Well, as we have laid out in our brief in this case, we believe that the court can view the issues of this case through a relatively straightforward NEPA lens and resolve these issues under familiar NEPA standards of review.

[00:19:19] Speaker 01:
When the court is taking its hard look at what the agency has done through this licensing proceeding, we believe the court should be considering the totality of the agency's actions here.

[00:19:32] Speaker 01:
Not only whether or not the staff took a hard look in the EIS, but whether these post-EIS processes through which the agency allows petitioners such as the councils to challenge

[00:19:44] Speaker 01:
the environmental analysis that the agency has already performed, whether or not by the time this all culminates in a final order from the commission, in which it has considered all the issues, whether the agency has taken a hard look.

[00:19:57] Speaker 01:
I think the way to look at it is the NRC performs its NEPA analysis first, then in this proceeding, the agency held a hearing then afterwards,

[00:20:11] Speaker 01:
And through this Section 189 hearing process, the agency essentially takes the first look internally through an independent review through the licensing board and on review the commission.

[00:20:23] Speaker 04:
Their complaint is that the license is issued in the midst of that process, however, and therefore

[00:20:32] Speaker 04:
when the license is issued, if you focus on that moment in time, they would say that's not, the hard look has not occurred, at least not properly occurred.

[00:20:42] Speaker 01:
Sure, and to be clear, Your Honor, yes, the license is, in this case, was issued before the hearing.

[00:20:48] Speaker 01:
That is the major federal action which necessitates the preparation of an EIS.

[00:20:52] Speaker 01:
And so the NRC staff complies with all the procedural requisites of NEPA before that moment in time.

[00:21:00] Speaker 01:
When the hearing then occurs and if and when new information or newly introduced information is brought to the attention of the board in that hearing, we believe the proper standard to determine whether or not the board or on appeal to commission should have in fact remanded or took some action upon the license.

[00:21:21] Speaker 01:
The standard there we believe is an arbitrary and capricious one.

[00:21:24] Speaker 01:
I think it is standard our review of the board or the commission.

[00:21:29] Speaker 01:
The review of whose review in this case both your honor because both the board and the commission at different points in this proceeding took a look at the new information that was offered and in both of the cases elected that we agree that this information is not material enough to change

[00:21:47] Speaker 01:
the impacts analysis that the staff has already performed.

[00:21:51] Speaker 01:
And so on two levels of review in both instances, both the board and the commission made that determination that this information is not material enough in our judgment to require revisitation of the impacts analysis the staff has already performed.

[00:22:07] Speaker 01:
The staff in the EIS said that

[00:22:09] Speaker 01:
impacts would be small.

[00:22:11] Speaker 01:
We've looked at the staff's analysis.

[00:22:13] Speaker 01:
We've considered the new information that has been brought forth to the agency's attention through this additional Section 189 hearing process.

[00:22:23] Speaker 01:
And we do not, in our judgment, believe that the information is material enough to require a revisitation of the analysis that's already been done.

[00:22:31] Speaker 01:
I think that that... The granting of a license, you mean?

[00:22:35] Speaker 04:
I guess maybe I'm missing something, but it isn't part of the real world concern that you do half-baked EIS, grant the license, and then it's fixed in internal agency review.

[00:22:51] Speaker 04:
But the idea would be that the license might not have been granted had the property EIS been done in the first place by the staff.

[00:22:58] Speaker 01:
I understand there may be a real world

[00:23:01] Speaker 01:
And that is how the councils have characterized it in their brief, that this is a leap-first-before-leap-first-look-later approach.

[00:23:12] Speaker 01:
But a couple of things that I would say in that regard.

[00:23:15] Speaker 01:
First and foremost is the availability in the agency's procedural regulations to obtain a stay.

[00:23:20] Speaker 01:
of the licensing decision.

[00:23:22] Speaker 01:
A petitioner who believes that they will be harmed irreparably in the interim between license issuance and the conclusion of the agency's licensing process, the culmination of the process being a commission order.

[00:23:34] Speaker 05:
I don't think the claim here is interim harm, except in the sense that the train will be perceived to have left the station and there'll be no remedy no matter how

[00:23:50] Speaker 05:
how drastic the environmental adverse findings are.

[00:23:55] Speaker 01:
Right, and that's just one consideration of why I think that the hearing process is reasonable and enables the agency to overall take a hard look at the environmental effects of its actions.

[00:24:05] Speaker 02:
You were just saying that a party could seek a stay if there's a problem, right?

[00:24:11] Speaker 01:
Yes.

[00:24:12] Speaker 02:
But that's not relevant to this case, is it?

[00:24:14] Speaker 02:
You're not faulting them for not seeking to stay.

[00:24:18] Speaker 02:
Because the harm of which they're complaining is not going to materialize in the first months of this activity.

[00:24:23] Speaker 01:
I just rose to that point, Your Honor, that conceptually speaking, if there is concern that issuing a license and then holding a hearing after that, if there is concern that the license is in effect and that there could be irreparable harms that are done,

[00:24:39] Speaker 01:
during the pendency of that process, that that is one available remedy for someone in the NRC's hearing process who believes that to be the case.

[00:24:47] Speaker 01:
And it was not sought in this case.

[00:24:49] Speaker 01:
I just wanted to raise that to address that real world type practical concern.

[00:24:54] Speaker 01:
The other, what I would specifically direct the court's attention to on this point, pages 142 and 143 of the Joint Appendix, these are the two pages of the commission's decision in which it is talking about how this,

[00:25:08] Speaker 01:
that augmentation process works in agency practice, where the commission not only states that under agency's adjudicatory practice, from the time the license is issued, all parties to that proceeding are on notice that it is in fact, it is effective, but it is, as you stated, Judge Williams, it's provisional.

[00:25:26] Speaker 01:
in the sense that everyone is on notice that depending how the adjudicatory process plays out, it can be modified, it can be revoked, it can be suspended, depending on the way that the contentions that the board is considering that have been brought to the attention of the board.

[00:25:42] Speaker 01:
But while you have it, the activity can begin, correct, the project?

[00:25:47] Speaker 01:
When the license is issued, the licensee can engage in the activities authorized by that license.

[00:25:52] Speaker 01:
It is effective.

[00:25:53] Speaker 02:
Do they need anything later to begin mining operations?

[00:25:58] Speaker 01:
It's not akin to, for example, the power reactor licensing scheme where there's differences.

[00:26:06] Speaker 01:
But there are, for example, bills into the license.

[00:26:10] Speaker 01:
There are inspection activities that have to occur before actual mining begins.

[00:26:15] Speaker 01:
The licensee has to, under the license, submit various data on the well fields it constructs after it receives its license and submit that to the staff for verification.

[00:26:27] Speaker 02:
Suppose that went along.

[00:26:28] Speaker 02:
There was nothing happened here as it did.

[00:26:31] Speaker 02:
The license is issued and some months later, in this inspection process,

[00:26:42] Speaker 02:
something adverse or with potential adverse consequences for the environment is discovered.

[00:26:49] Speaker 02:
What does the agency do about that?

[00:26:51] Speaker 01:
Well, since they are a licensee, if they're not in compliance with their license, then... Well, they're in compliance, but something unanticipated comes to light.

[00:26:59] Speaker 01:
Well, if something... In terms of the environmental analysis,

[00:27:08] Speaker 01:
Again, and one of the reasons why I say I think this should be viewed under an arbitrary and capricious standard, this decision whether or not to reconsider or conduct more studies, is I think this is akin to decisions of whether or not to supplement an EIS after the action has been taken.

[00:27:25] Speaker 01:
As this court said in the Blue Ridge Environmental Defense League case, citing the Supreme Court's precedent in Marsh,

[00:27:33] Speaker 01:
When federal actions are ongoing, there is always the potential for new information to arise.

[00:27:38] Speaker 01:
And the agency does have a duty to continually be taking a hard look at the environmental aspects of its federal actions.

[00:27:47] Speaker 02:
So if that came to light during operations, would it result in the agency amending its EIS or just amending its license?

[00:27:57] Speaker 01:
If there were discovery of environmental harms or potential harms, the agency has many tools in its belt in that situation.

[00:28:15] Speaker 01:
issue orders to change licenses or to amend licenses if need be.

[00:28:20] Speaker 01:
There's a process in the agency's process for that.

[00:28:24] Speaker 01:
To the extent that new information did arise at the site and the hearing is still ongoing, petitioners who are admitted to that hearing can

[00:28:33] Speaker 01:
submit new contentions, and as long as they do so in a timely fashion, if it is materially new information that wasn't available at the time the hearing started, and to the extent that those issues arise during the hearing process, they can be entered into the hearing process and litigated if they are brought in a timely fashion.

[00:28:50] Speaker 02:
At the end of the day, that can result in an amendment to the license.

[00:28:53] Speaker 01:
Yes.

[00:28:53] Speaker 02:
But does it result, or can it result in an amendment to the EIS?

[00:28:58] Speaker 01:
It can, Your Honor.

[00:28:59] Speaker 01:
That's always an option.

[00:29:01] Speaker 02:
Has that happened ever?

[00:29:04] Speaker 01:
The agency has, again, I don't believe that it's necessarily reflected in the record of this case, but there are instances where in the hearing process, in the resolution of that process, if the staff's environmental analysis has been deemed to be either not considered all the aspects or if something new has arisen, again, what the commission said in its decision is not only does the process

[00:29:31] Speaker 01:
the process intended to work that way, the commission said in its decision, it is fully our expectation that in an appropriate case, the board can and should either suspend the license or remand back to the NRC staff if the new information in the hearing process reveals that something was not

[00:29:49] Speaker 01:
considered.

[00:29:50] Speaker 01:
But in this case, in exercising its technical judgment and expertise, the board in the first instance said we don't think this information materially affects any conclusions in the EIS and the commission.

[00:30:02] Speaker 01:
Not only upheld that as reasonable, the board's decision is reasonable, but to get to, if I may, and I know I've overrun my time, but just to finish my point, the question of

[00:30:14] Speaker 01:
Okay, so what is the remedy?

[00:30:17] Speaker 01:
What is left to be done here?

[00:30:19] Speaker 01:
The commission in its decision specifically stated that we not only believe the board's actions were reasonable, but we've reviewed this record and even considering the new information that was adduced during the hearing process, we believe that the record supports the issuance

[00:30:34] Speaker 01:
of the license to strata.

[00:30:36] Speaker 01:
So the commission, the highest level decision makers of the agency have reviewed the record in this proceeding, including the information that was additionally produced at the hearing and has made the decision that it supports the issuance of the license.

[00:30:51] Speaker 01:
And so then to say that the commission, rather than taking that action on its own accord, must instead remand back to the NRC staff to decide whether or not that the new information supports the issuance of the license, that is a decision that the commission can make in its discretion if it chooses to do so.

[00:31:13] Speaker 01:
In another case where there were significant defects

[00:31:16] Speaker 01:
or significant omissions from the environmental impact statement that were revealed, the Commission does have the option to send back to the NRC staff.

[00:31:24] Speaker 05:
Let's try to pin it down.

[00:31:25] Speaker 05:
If I understand what you're saying, when new environmental information comes in, the agency has

[00:31:36] Speaker 05:
has the authority to respond to that in a range of ways.

[00:31:39] Speaker 05:
And even if the new information calls for changing the prior action, here are the issuance of the license,

[00:31:52] Speaker 05:
And even though it's an environmental issue, the agency can do that without restarting the EIS process per se.

[00:32:04] Speaker 05:
It has to consider what would be considered in such a process and act reasonably on that information.

[00:32:14] Speaker 05:
Is that right?

[00:32:16] Speaker 01:
I think that's right, Your Honor, and maybe if I could just talk quickly about the borehole issue in this case, I think it exemplifies exactly how this works out, where in the borehole case, the staff through a number, in the borehole contention, the staff through a number of license conditions

[00:32:31] Speaker 01:
And I think it's important that we understand that.

[00:32:32] Speaker 01:
Uh, came to the conclusion that although there are boreholes within the vicinity of this project, we believe the impacts associated with those boreholes will be small.

[00:32:40] Speaker 01:
Given the number of license conditions that have been included to either address or

[00:32:49] Speaker 01:
What the board said was we agree fundamentally with what the staff said, but at the hearing, more information was revealed that there is an additional class of boreholes outside of the license condition in the license, about 100 outside the well field perimeter that although low probability,

[00:33:04] Speaker 01:
If excursions reach those boreholes, then perhaps the impacts would be different than what the staff said.

[00:33:09] Speaker 01:
And so what the board did was affirmatively amend the license and said in this hearing process, we were provided with information which indicates that the license perhaps should be more environmentally mitigative than what the staff had drafted and compelled the NRC staff to, in fact, amend the license in accordance with that decision.

[00:33:26] Speaker 01:
So I think that that is exemplifying of the broader efficacy of the NRC staff's hearing process, where if new information comes to light, the NRC staff does have the ability to amend the license, to address those conditions, or in the extreme cases, remand back to staff, suspend the license during the pendency of that remand, if it decides that's the appropriate course of action.

[00:33:47] Speaker 01:
Both the board and the commission decided in this case that based on the materiality of the information, that was unnecessary.

[00:33:54] Speaker 01:
Is that all?

[00:33:55] Speaker 01:
Any further questions?

[00:33:56] Speaker 01:
Thank you.

[00:34:08] Speaker 03:
Good morning.

[00:34:09] Speaker 03:
Good morning, Your Honors.

[00:34:10] Speaker 03:
May it please the Court, my name is Christopher Pugsley, and along with my co-counsel, Anthony Thompson, we are here on behalf of the licensee, Strata Energy, Incorporated.

[00:34:18] Speaker 03:
First, Your Honors, we'd like to note for the record that we fully support each of the arguments offered by the Nuclear Regulatory Commission in its brief, and believe as the expert technical agency, the determinations of the NRC Commission in this case fall squarely within the realm of Chevron deference.

[00:34:36] Speaker 03:
First, from the perspective of the licensing, Your Honors, we believe that the critical component of this argument, given the discussion about potential harm that we've already had, is found in the Commission's recently ordered 2009 study of past ISR operations, which had occurred at that time over a period of around 40 years.

[00:34:56] Speaker 03:
The conclusion of that, the main focus of it, Your Honors, was were there and had there ever been

[00:35:02] Speaker 03:
adverse impacts to what we refer to as adjacent non-exempt aquifers as a result of ISR operations.

[00:35:10] Speaker 03:
The conclusion of the Commission in 2009, which still stands today, is that there have not been any impacts from ISR activities to those adjacent aquifers.

[00:35:22] Speaker 03:
Flowing from the conclusion of the study are the two critical components upon which the regulatory program NRC employs rests on.

[00:35:30] Speaker 03:
First, as a matter of law under the Uranium Mill Tailings Radiation Control Act of 1978, as it amends the Atomic Energy Act of 1954,

[00:35:40] Speaker 03:
The Commission is required to implement generally applicable standards promulgated by EPA, most importantly in this case, EPA's Resource Conservation and Recovery Act regulations under 40 CFR Part 264.

[00:35:54] Speaker 03:
These are the groundwater quality and restoration standards that NRC has determined in 2007 to apply as a matter of law to ISR well fields.

[00:36:04] Speaker 03:
They consist of the following standards.

[00:36:06] Speaker 03:
The first, which has often been referred to as baseline, which is incorrect.

[00:36:11] Speaker 03:
Baseline is not part of the criterion 5B5 standard under NRC's regulations.

[00:36:17] Speaker 03:
It is called commission-approved background.

[00:36:20] Speaker 03:
Commission-approved background is established after the construction of a well field.

[00:36:23] Speaker 03:
You have to restore to either commission-approved background or what's called a maximum concentration limit, whichever is higher, or what has been called an alternate concentration limit.

[00:36:35] Speaker 03:
These are taken directly from EPA standards and implemented under the Mill-Tailings Act by NRC.

[00:36:42] Speaker 03:
Following from this, Your Honors, is how NRC regulates ISR operations, which is found in its 10 CFR Part 40 Appendix A regulations for 11E2 by-product material under the Atomic Energy Act.

[00:36:54] Speaker 03:
Coming from this, because originally part 10 CFR part 40 was developed for conventional milling operations, NRC developed what's called a standard review plan.

[00:37:06] Speaker 03:
It's called New Reg.

[00:37:07] Speaker 03:
1569, cited in our brief.

[00:37:10] Speaker 03:
Under the next terror case, as cited in our brief on page 11, the Commission has determined that while a standard review plan or a guidance document, if you will, does not have the force and effect of law, it is entitled to substantial weight.

[00:37:25] Speaker 03:
And the Commission has determined under its 10 CFR Part 1 regulations that NRC staff is empowered to interpret the Commission's regulations for just this type of activity.

[00:37:36] Speaker 03:
Coming from this standard review plan is how a license is developed and the conditions of multiple layers of regulation are developed.

[00:37:43] Speaker 03:
The key component to an ISR well field, your honors, is what we refer to as well field balance.

[00:37:48] Speaker 03:
You've heard the term cone of depression.

[00:37:50] Speaker 03:
That is basically where you take what is called a production bleed out of a well field that brings water into the well field and prevents migration of it out so that nothing from the well field can go to an adjacent non-exempt aquifer.

[00:38:04] Speaker 03:
And as I've said that term multiple times in this argument, let me emphasize, under EPA Safe Drinking Water Act, if you cannot demonstrate that an aquifer where you seek to recover uranium via this process,

[00:38:18] Speaker 03:
cannot now nor ever in the future serve as a source of public drinking water, there can be no mining there.

[00:38:25] Speaker 03:
It is not allowed under EPA regulations.

[00:38:27] Speaker 03:
So when the question was asked earlier about are there other requirements that an ISR operator must satisfy or other permits that must be obtained prior to operation other than an NRC license, there are.

[00:38:40] Speaker 03:
There are many.

[00:38:41] Speaker 03:
You have to get environmental protection agency aquifer exemptions, which is subject to potentially state application to the agency for approval to EPA, as well as what's called an underground injection control permit that deals with, excuse me, the wells in the well field that are called injection and production wells, as well as your monitor wells, et cetera.

[00:39:03] Speaker 03:
Lastly, Your Honors, I notice I've significantly exceeded my time.

[00:39:07] Speaker 03:
If I may just say one more thing that

[00:39:10] Speaker 03:
As part of this well field balance, NRC installs multiple license conditions, including what are called mechanical integrity tests, which are part of the, in response to the question earlier, pre-operational inspection, that you have to perform these tests to demonstrate there will be no leaks from any of the wells in the well field.

[00:39:29] Speaker 03:
You have to have

[00:39:31] Speaker 03:
You have to have monitor well networks that determine whether an excursion has occurred.

[00:39:36] Speaker 03:
And it's important for the court to note that the term excursion is frequently mischaracterized.

[00:39:41] Speaker 03:
An excursion is not the migration of alleged contamination to an adjacent non-exempt aquifer.

[00:39:48] Speaker 03:
Monitor wells are inside that.

[00:39:51] Speaker 03:
They are designed as an early warning system where NRC requires that an ISR operator on a site-specific basis determines what constituents, albeit non-hazardous, things like calcium, conductivity, things of that nature, that are demonstrated to be the most mobile based on the science.

[00:40:10] Speaker 03:
And once those are determined to be the indicator parameters, if a higher concentration of those are detected at a monitor well, NRC requires that the excursion be reported, that the ISR operators cease recovery activities in the well field, and bring the excursion back before it is even allowed to continue with uranium recovery.

[00:40:32] Speaker 03:
Okay.

[00:40:32] Speaker 03:
Thank you very much.

[00:40:34] Speaker 04:
Thank you, Your Honor.

[00:40:35] Speaker 04:
We'll give you a couple minutes for rebuttal.

[00:40:41] Speaker 06:
Thank you.

[00:40:42] Speaker 06:
First I'd like to go back to the NEPA violation that we've been focused on here today.

[00:40:47] Speaker 06:
You heard the Undersea Council use the word extreme in reference to only if there was an extreme issue would it ever be remanded back to the agency from the board.

[00:40:59] Speaker 06:
I think that is very telling because what that shows is that it's the agency's view that the board can fix their NEPA.

[00:41:07] Speaker 06:
that their EIS, prior to the board's decision, effectively has no meaning, because it can just be fixed by the administrative appeals process.

[00:41:17] Speaker 05:
Is it your contention that the only response to new information, to environmental information, after an EIS has been completed and action taken, is to A,

[00:41:37] Speaker 05:
vacate the action and go back for a renewed EIS.

[00:41:46] Speaker 06:
Sir, Your Honor, again, I think it's important to differentiate the two questions of the violation versus the remedy.

[00:41:53] Speaker 06:
But on the violation itself, it's also important to realize, again, this was not new information.

[00:41:58] Speaker 06:
This was information that petitioners for a three-year hearing process told us to do.

[00:42:03] Speaker 04:
Can you just answer?

[00:42:05] Speaker 04:
Sure.

[00:42:05] Speaker 04:
Judge Williams had a specific question, I think.

[00:42:08] Speaker 06:
Yeah, well, I think under NEPA, so the presumptive remedy is vacatur and remand.

[00:42:14] Speaker 06:
That's the history of NEPA and the long history under our court system.

[00:42:19] Speaker 06:
That is the presumptive remand.

[00:42:20] Speaker 06:
And the importance of that is because it remanded.

[00:42:26] Speaker 05:
And does this remand require starting at square one for the EIS process?

[00:42:35] Speaker 05:
everything is to be re-examined.

[00:42:39] Speaker 05:
As a practical matter, it certainly sounds as if some new environmental impact is found.

[00:42:47] Speaker 05:
It makes sense for the acting agency to respond to that, its response being subject to review for being arbitrary and capricious, but to respond to it and move on.

[00:43:03] Speaker 06:
And I think that would be appropriate in a couple of different ways.

[00:43:06] Speaker 06:
One, if the agency prior to the hearing hadn't already issued the license.

[00:43:13] Speaker 05:
So the cases that... Well, my hypothesis is that the license is issued and action has started and information comes in or is highlighted, whatever, causing some reconsideration.

[00:43:28] Speaker 06:
Right.

[00:43:29] Speaker 06:
So there's a process under NEPA, which you're aware of, that it allows for a supplemental EIS if new information is available.

[00:43:36] Speaker 06:
That's not what we have here.

[00:43:38] Speaker 06:
We have the same EIS.

[00:43:39] Speaker 06:
It was never supplemented.

[00:43:40] Speaker 06:
It was never augmented.

[00:43:42] Speaker 06:
There's no phrase that actually changed the EIS that existed prior to the hearing.

[00:43:49] Speaker 06:
So it would be different, I think, Your Honor, if the agency, the board, had considered the information and somehow went back and supplemented or revised the EIS.

[00:44:00] Speaker 06:
But that's not what we had here.

[00:44:01] Speaker 05:
And how is that materially different from taking such steps with regard to the license as respond to the information reasonably?

[00:44:14] Speaker 06:
So again, it goes back to that when the license was issued, the agency didn't have this information.

[00:44:20] Speaker 05:
Yeah, when the license was modified, it did.

[00:44:23] Speaker 05:
So in my hypothesis and the facts.

[00:44:28] Speaker 06:
Right, but it would never went back to the NEPA document.

[00:44:34] Speaker 06:
And so there's this fundamental disconnect between the way the agency's been doing NEPA and the way every other administrative agency in this country does NEPA.

[00:44:45] Speaker 06:
And that's to make the NEPA meaningful, it has to be part of the agency's decision to issue the license in the first instance.

[00:44:54] Speaker 05:
Without the word EIS, it is part of the agency's decision-making in the sense that the new environmental information is considered and reasonable responses made.

[00:45:07] Speaker 05:
Of course, if they're not reasonable, that's reversible.

[00:45:11] Speaker 06:
Yeah, and I think that the difference is that the major federal action subject to need vote was to issue the license in the first instance.

[00:45:18] Speaker 06:
It wasn't to look at it after the board to think about whether to change it to modify it to add a new license condition is was whether to issue or deny the license.

[00:45:28] Speaker 04:
And that's the practical harm that you are focusing on, is that the license is issued.

[00:45:33] Speaker 04:
Although I'm not sure why, if the license would be issued after the next stage in the process, what the practical harm really is.

[00:45:42] Speaker 06:
Yeah, and that issue is not before us.

[00:45:45] Speaker 04:
So we, you know, we may... But your whole point is that the, in saying, I think, that this is different from what every other agency does, is that there's something

[00:45:55] Speaker 04:
unusual or odd about this and presumably something that's creating a practical problem.

[00:46:00] Speaker 04:
The practical problem I imagine is that when the license is issued there's kind of this pressure not to revoke the license.

[00:46:06] Speaker 06:
Yeah, there's agency momentum, definitely.

[00:46:09] Speaker 06:
And effectively, what's happened is the board is an appeals board.

[00:46:13] Speaker 06:
And then the commission is even in the pilot level beyond that.

[00:46:17] Speaker 04:
And so we- But to Judge Williams' point, if the license would be issued anyway, if they conclude that the license would have been issued anyway, and we've now considered the supplemental, I don't want to use that in a technical sense, the additional information, why is that a problem, I guess?

[00:46:35] Speaker 06:
It's a problem because of the lack of public involvement in that agency's decision.

[00:46:42] Speaker 06:
So petitioners were the only ones in the room at that stage.

[00:46:45] Speaker 06:
Or was it a NEPA comment process or any other kind of opportunity for the public to be involved?

[00:46:51] Speaker 06:
And then it also, again, goes back to what is the agency decision subject to NEPA and when was that decision made?

[00:46:57] Speaker 02:
I have a question.

[00:47:00] Speaker 02:
Go ahead.

[00:47:00] Speaker 02:
Council, you responded in your reply brief, you replied to the agency's invocation of our Friends of the River president, and this is what you said.

[00:47:12] Speaker 02:
In that case, the court considered whether the agency had adequately considered issues before it decided to authorize the project to proceed.

[00:47:23] Speaker 02:
But it turns out, as you report later on, the court found that in making its initial decision, the agency had failed to adequately consider a certain alternative and concluded the agency had cured that error by fully and fairly considering that alternative during the rehearing process.

[00:47:41] Speaker 02:
So there, there's a rehearing process.

[00:47:44] Speaker 02:
The decision was made, it's out there.

[00:47:49] Speaker 02:
The petitioners sought re-hearing, Friends of the River sought re-hearing, and that's where the additional environmental information was considered by the agency.

[00:48:01] Speaker 02:
After the original decision had issued, how is that any different than the present situation?

[00:48:06] Speaker 06:
So, Your Honor, in Friends of the River and the Sonoma Tribal Community and all of these other cases, the environmental impacts information considered at the hearing was prior to the agency's decision.

[00:48:19] Speaker 06:
So that's the analogy.

[00:48:20] Speaker 02:
Prior to its rehearing decision, but it was after its initial decision.

[00:48:23] Speaker 06:
And I think the court found that... Is that correct?

[00:48:26] Speaker 02:
It was in the rehearing.

[00:48:28] Speaker 06:
And that was related specifically to the alternative.

[00:48:30] Speaker 06:
It wasn't related to the environmental impacts information.

[00:48:35] Speaker 05:
It was a NEPA case.

[00:48:36] Speaker 05:
That's part of a NEPA analysis.

[00:48:38] Speaker 05:
It's his race of alternatives.

[00:48:42] Speaker 02:
Okay.

[00:48:45] Speaker 02:
Okay, thank you.

[00:48:46] Speaker 04:
Okay, thank you very much to both sides, all sides and the case is submitted.