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Page number 20-1489, Oglala Sioux Tribe and Aligning for Responsible Mining Petitioner versus US Nuclear Regulatory Commission and United States of America.

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Mr. Parsons for the petitioner, Mr. Adler for the respondent, Mr. Brexley for the intervener.

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Thank you.

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May it please the court.

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My name is Jeff Parsons on behalf of Petitioners Oglala Sioux Tribe and Aligning for Responsible Mining.

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This case at base is about the significant cultural resources, including burials, prayer sites, and habitation sites, in addition to important regional groundwater aquifers that are at risk from significant impacts as a result of the Nuclear Regulatory Commission's failure in this case to follow the procedural requirements of the National Environmental Policy Act, NEPA, and the National Historic Preservation Act.

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With respect to the National Environmental Policy Act, the process the Nuclear Regulatory Commission used violated NEPA in at least three ways I'd like to highlight.

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The first is that the agency prepared and finalized their environmental impact statement in a,

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closed adjudicatory proceeding without involving the public or other agencies as required for a lawful NEPA process.

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The second NEPA violation derives from

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revisions that the agency made attempted here, particularly an analysis of the purported unavailability of cultural resources information that did not comply with the explicit requirements of the CEQ Council on Environmental Quality Regulation.

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Mr. Parsons, you are, I guess, assuming that those regulations apply.

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And, and there's an argument that has been made in this case that they don't so can you speak to that.

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That is, there has been an argument to that effect your honor.

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There are several cases that address that.

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I think that a good starting point for that is the Council on Environmental Quality Regulation at 40 CFR 1500.3, which specifically says that these regulations are applicable to all federal agencies.

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There is a narrow exception or exemption contained in 1500.3A.

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which allows an agency to escape or sort of not comply strictly with the CEQ regulations to the extent that it's inconsistent with their statutory obligations or statutory requirements.

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All right.

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But I don't think we have a concession here that they didn't comply.

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So let's assume they did.

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Didn't the commission find that whether or not they applied, they had done enough, the board

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in having an evidentiary hearing, in fleshing out the unavailability finding in that respect, and don't we have case law that indicates that a hearing can sometimes suffice?

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There is case law that says the hearing can sometimes suffice, but those cases are extremely limited to situations where the information is already included, has already been done.

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That was an example in the Natural Resources Defense Council case.

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The court discusses that and indicates that I think in that case, the court

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certainly expressed some cynicism, some doubt that that kind of process is lawful or wise.

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But in that case, the court found that sending it back a remand in that case would have been utterly futile, I think, is the- All right.

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Well, what would a remand do in this case?

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I mean, I understood that the unavailability finding related

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primarily to alleged recalcitrance by the tribe.

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The information was all about, or the problem allegedly was the tribe's refusal to adhere to its original agreement concerning the survey and the process, the methodology.

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So if that's the case, I'm not sure

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What sending it back for some sort of a supplement or whatnot is going to accomplish that the hearing was held in public.

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All of those issues were aired.

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And so what Why would, why would we, we, we remain.

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Why wouldn't it be futile under these circumstances.

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Thank you, your honor.

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Obviously the tribe disputes some of those characterizations made by the agency with respect to the tribe not staying true to its commitments throughout.

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The tribe throughout this process has been ready, willing, and able to aid and participate in the survey work.

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But that's the fact is that there has been no survey of cultural resources

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at this site, no competent cultural resources survey.

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That was the finding, the adjudicated finding of the Atomic Safety and Licensing Board in 2015, affirmed by the commission in 2016.

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What the agency did was come back and propose different survey methods.

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The tribe participated the whole time.

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Repeatedly,

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the Nuclear Regulatory Commission staff unilaterally withdrew from those discussions and those processes because effectively the tribe was not in a position to fund the process.

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The record shows that the agency placed the burden of complying with the law on the tribe and the tribe was not

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willing or able to fund the entire survey effort.

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As far as what could be accomplished on remand is exactly that the survey ought to be accomplished.

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No, I'm talking about for the violation that relates to the CEQ alleged CEQ regulations violation, right?

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Right.

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So that regulation at the time, it's gone through some changes, but the same language appears was

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40 CFR 1502 22.

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And that requires the agency in an environmental impact statement to do four things.

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Have a statement of the unavailability, a statement of the relevance of the incomplete information, a summary of existing credible evidence.

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So that never occurred.

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There was never a summary of what exists out there.

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The tribe brought forth affidavits and other

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examples of existing available information that the Nuclear Regulatory Commission staff never investigated, never asked, never looked into.

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Fourth and importantly is that the 1502-22 requires that the agency in that same process of the 1502-22

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exemption or unavailability finding that it evaluate the impacts based on theoretical approaches or research methods accepted in the scientific community.

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So even where there is an unavailability finding, it still requires the agency to conduct an analysis based on the information it has theoretical approaches and research methods accepted in the scientific community.

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Mr. Parsons, if we

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Assume for a moment that we agreed with the NRC that the CEQ regulations are not binding on the nuclear regulatory commission.

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In that instance, what would be your argument under NEPA or the NRC regulations themselves?

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I mean, does your claim wholly depend on the CEQ regulations binding the NRC?

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No.

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So if you start with the statute, the National Environmental Policy Act, as interpreted by this court in public employees for environmental responsibility versus Hopper, that's 827 F third, 1077 at 1081 to 1082, it talks about the statute requiring

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In the language of the court, the principal way the government informs the public of this decision making is by publishing environmental impact statements 42 USC for 332 to see agencies must prepare and make publicly available these statements.

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Now that's reflected in the commission's own regulations at 10 CFR 51 point 73

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And 10 CFR 51.74.

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Your claims are not that there was an environmental impact statement.

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It's more about how they should have been amended and updated and further specified.

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I mean, are those requirements from the statute or the NRC regs?

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Is there support for that?

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Because NEPA is pretty

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I mean, NEPA doesn't provide very much guidance at all about how precisely its mandates are to be implemented.

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That's true.

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What it does require is robust public involvement.

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And what you have in this case is instead of a publication of an environmental impact statement,

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including this unavailability determination or any analysis of cultural resources, you have essentially briefing to an administrative adjudicatory body in a closed process.

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The public was not allowed to participate in this process.

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In order to have been involved, parties would have had to petition, as the tribe did, to intervene over 10 years ago and meet what Commissioner Barron in his dissent

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on the commission ruling indicates or describes as a strict and fairly restrictive process for getting involved.

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And so there was never an environmental impact statement that included this information.

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It was only in the briefing

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of the agency sent to that administrative body.

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So there was no opportunity for the public to supply comments, no opportunity for the other agencies, state or federal, to review and deal with that.

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As required, again, by the NRC's own regulations at 10 CFR 51.73 and 51.74 requires that other federal agencies, other state agencies,

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Indian tribes, the public have opportunity to provide those comments.

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And that's essentially the purpose of NEPA is this cross pollination, this idea that you put this information out to the public so that the agency can be well informed and perform what's the hallmark of NEPA, which is that hard look analysis, which did not occur.

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What I'm trying to assess is the extent to which

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the tribes alleged recalcitrants to participate in the process that they insisted happened over a period of years, why doesn't that provide important context for us in evaluating whether or not the agency has satisfied its need by obligations?

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So, you know, I understand that ordinarily we would be in a world in which

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The agency has the obligation to determine cultural resources.

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It has to go out on its own and look for the information.

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And if it can't find it, then perhaps per these, the regulations that you point to, the CEQ regulations or other regulations, they might have to make certain statements.

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But that's in the sort of ideal world where we haven't had

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prolonged engagement with a tribe that says the way in which you do this is you have to have an interview with the elders, you have to engage us in a certain way, et cetera, and then changed its mind about it and made it difficult to follow that process.

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Why can't and why shouldn't the court take into account what actually happened here when deciding whether the hearing

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where all of the unavailability was fleshed out in deciding whether or not that was sufficient to satisfy any duty regarding cultural resources in this case.

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Yeah, thank you, Your Honor.

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I think the record reflects that the tribe was engaged and cooperative.

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And it was the Nuclear Regulatory Commission staff, in fact, that repeatedly pulled the plug, so to speak.

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For instance, if you look at the sort of the last interaction between the parties in February, March of 2019,

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What you end up with is a example where the tribe brought together all of its leaders, including leaders of other tribes, and had a meeting with the Nuclear Regulatory Commission staff and its consultant.

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And everyone agreed at that meeting that things would go forward and this was going to be a productive relationship and we would put together this methodology that NRC staff never actually put together literally a week later on March 1.

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2019, NRC staff sends a letter saying, we're done with this.

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We're not going to go forward with those processes.

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Those letters, you can find it, joint appendix 1888 is the NRC's.

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Sorry, go ahead and give us the site, 1888.

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And then the tribe's letter is at JA1857.

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Do you dispute that prior to that the NRC staff had provided a proposal for methodology and the tribe at one point had agreed to it?

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The tribe had agreed to a process.

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There was never a methodology put forward on the table.

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That's the problem, is that the NRC said that here's the process we're going to follow.

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And as a component of that, the tribe and the NRC staff and its consultants will develop a methodology for the site survey.

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And the problem came when

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the Nuclear Regulatory Commission staff failed to provide any methodology for the tribe to review or assess.

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What it did was relied on the tribe both to provide the methodology as well as- Can you define methodology as you're using it in this- Sure.

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I'm talking about the actual process by which the people would walk the site and figure out what

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kinds of cultural resources are on there.

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What kind of transects you'd use, how far apart people would be, how many days you would go, what kind of area you would review.

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Once you acquire that information, what would be the process by which the tribe and interested parties

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and the commission staff and its consultants would review and analyze that information.

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I thought the methodology was supposed to be generated by the contractor in consultation with the tribes.

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I thought that was one of the five prongs of the original March proposal that the tribe agreed to.

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This is a very fact-specific case, so I may have gotten it wrong, but I thought there was a proposal that had five steps to it or pieces to it,

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including the hiring of a contractor and that the contractor was supposed to propose the methodology and the tribe agreed and there was per diem or whatnot for a certain number of tribe people to be involved and it was all basically put together and then the tribe pulled out am i wrong about that i think you are wrong about that okay the the nrc staff consultant never put together that methodology in fact

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The methodology that they had suggested in 2018 was what would be called an open site approach, which was not a methodology.

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It was a sort of, you all go out there and see what you can find and then let us know.

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And the tribe had informed NRC from the very beginning that that was unacceptable.

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And that's what led to the original adjudication finding that there was a violation of both NHPA and the National Environmental Policy Act.

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So the tribe was prepared and working with the consultant, the NRC staff consultant, to prepare that methodology to work on that.

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And that's when

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the Nuclear Regulatory Commission staff on March 1st, 2019 unilaterally withdrew entirely from the process and decided it would rather litigate instead of do the work on the ground.

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And unfortunately, what you mentioned is the per diem and the cost, that was associated with what the record reflects as an honorarium, a $10,000 honorarium to the tribe.

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And that was,

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supposed to, in the agency's view, compensate for all the effort the tribe was supposed to put forward.

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But what came out eventually

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or ultimately, was that the NRC staff was relying on the tribe and its personnel to actually conduct the site-specific pedestrian that is walking survey of the site.

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And in the Atomic Safety Licensing Board hearing, the math was done during the hearing.

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And even the most basic

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survey of a site like that would require minimum $30,000.

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If I go back and I read the board's decision coming out of the hearing, am I going to see a different story about who's responsible for the unavailability?

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And if so, doesn't the board's version get some deference from the court as long as there's substantial evidence in the record to support what the board concluded the facts are?

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about how this thing transpired.

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Don't we have to give that deference?

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Well, I think what you'll find in the record is the board was equivocal and did not want to assign blame.

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And in fact said, it's not clear who did what or who is to blame for this.

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The fact is the survey never got done.

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And now the Nuclear Regulatory Commission staff wants to come in and try to assert unavailability of information relying on the CEQ regulation at 40 CFR 15022.

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So that was the basis of the last hearing in the case.

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argue doing that process is not an environmental impact statement.

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It's a closed adjudicatory hearing where the public was excluded entirely.

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If you look at the summary disposition ruling that the Atomic Safety Licensing Board made on the National Historic Preservation Act issues,

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The board found that the NRC staff had complied at a bare minimum with the National Historic Preservation Act consultation requirements.

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And that was based literally on one introductory face-to-face meeting and two exchanges of letters, none of which were substantive.

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And if you look at the requirements of the National Historic Preservation Act, they're very clear that the meaningful and good faith consultation

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must be for identification, evaluation, and mitigation of impacts for cultural resources.

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Mr. Carson, you're over your time.

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Thank you, Your Honor.

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If you want to take a minute to wrap up or give an overview of any other issues,

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I think the papers are pretty well.

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I will just note that what you find in this case repeatedly is instead of conducting the required

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analysis under the National Environmental Policy Act or the National Historic Preservation Act.

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What the board, the Atomic Safety Licensing Board, affirmed by the commission did was essentially add conditions to the license.

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Whenever there was a problem they couldn't resolve or an issue that wasn't analyzed, what they would do is add a condition to the license.

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They did that with respect to cultural resources, saying we'll place a monitor for construction.

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No input from the tribe, no consultation on that mitigation requirement.

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With respect to the boreholes, the thousands of abandoned unidentified boreholes at the site, they did the same thing.

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Here's a license condition saying the company should make its best efforts to find those boreholes.

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No analysis of that or how they're gonna do that or what the impacts might be.

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With respect to the transportation and disposal of radioactive waste,

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that was not analyzed in any depth in any NEPA document.

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It actually was in the EIS, Mr. Parsons.

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I mean, I found places where they talk about waste disposal, so it seems

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that you would argue that it wasn't addressed?

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What they did is relied on the generic environmental impact statement, which talked about a generic route through the southern half of the United States.

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What you have in this case is a specific proposal to dispose of the radioactive waste in White Mesa, Utah, which would require a much different transportation route across high Rocky Mountain passes.

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that was not addressed and nor was the disposal or the issues that White Mesa discussed in any way, shape or form in the EIS.

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It was entirely on the genetic side.

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Do you have any actual record evidence that links the substantive changes in the license to the procedural deficiencies that you say occur here?

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I understand your argument, which is

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every time we see a license provision being added, we think that's because they didn't do enough in the EIS.

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But is there something that expressly makes that connection in the record?

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Well, those conditions were added in the board rulings and the commission rulings where they identify, yes, this is a gap.

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And so we're going to add these conditions as a result of those

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I mean, they don't say here we're we know that NEPA requires us to say or evaluate a certain condition or certain impact and instead of doing that we are going to add a condition.

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I didn't see that anywhere in the record.

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So that's how the borehole condition arose.

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That's effectively how the cultural resource monitoring condition arose.

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If you look at the last ruling of the Atomic Safety Licensing Board, they find that the programmatic agreement doesn't provide effective mitigation, and thus they will add that condition.

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And unfortunately, at the end of the process, adding conditions that attempt to resolve those gaps doesn't provide the National Environmental Policy Act process, does not provide the tribe with the required National Historic Preservation Act consultation.

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The NHPA specifically requires meaningful and good faith consultation on things like mitigation of impacts.

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and by adding a condition at the last minute with no opportunity for comment or review by the tribe.

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Of course, I'm really, really worried about the implications of your argument in this regard because it seems that you would be disincentivizing agencies from actually making licensing provisions that would be beneficial to the environment or to your clients or to whatever.

[00:26:17] Speaker 02:
It's an odd argument to suggest

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that because in the license, they've decided to have a monitor, for example, to mitigate against any future impacts in an environmental setting, that just because they've done that, it somehow means that they didn't do sufficient work upfront pre-license per NEPA.

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I don't think that's what we're arguing.

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Of course, any licensed condition that would be beneficial to the tribe's interests or protection of the environment, I think, would be welcome.

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The problem is the NEPA process is such that these draft environmental impact statements, all this information was provided to the agency in comments on the draft environmental impact statement.

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There's nothing new that arose.

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And so all these issues were in front of the agency.

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So they went through the draft environmental impact process, decided not to include any of that, decided to finalize that impact statement, and then go to litigation in front of the board on what the staff thought was a legally compliant environmental impact statement.

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The board found that it was not legally compliant.

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And instead of sending it back for the public review process that NEPA requires, they simply tack on these

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conditions.

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And so it's not that the conditions shouldn't be considered.

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It's that the National Environmental Policy Act and the National Historic Preservation Act provide these processes that are necessary to comply with the law.

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They're right out of the statute.

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In NEPA 42 USC 4332

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It says the EIS issues must be prepared before taking any federal agency action.

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That means before the license is issued, these things have to be addressed.

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Similarly, in the National Historic Preservation Act at 54 USC 306108, it talks about prior to the issuance of any license,

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The agency must take into account the effect on cultural resources of any undertaking.

[00:28:30] Speaker 02:
So the statute, Congress mandates that the agency do these processes in a certain way that- And your argument is that they're adding the licensing provisions, which by the way, indicates that they were cognizant of these issues because they added a license provision.

[00:28:49] Speaker 02:
So, but you're suggesting that that is not

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compliant with NEPA, even though you said they had the information before them in the draft process, which I think is the purpose of NEPA, right, to make sure that they're considering things.

[00:29:05] Speaker 02:
So they had it.

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They may not have put it into the final EIS, but they made it into a licensing provision.

[00:29:13] Speaker 02:
And you say there's a NEPA violation as a result?

[00:29:17] Speaker 06:
Yes, by adding those conditions without any public review, without allowing any other agencies or the tribe to comment or give input, it violates both the National Historic Preservation Act with respect to the cultural resources, as well as the National Environmental Policy Act.

[00:29:33] Speaker 05:
All right.

[00:29:34] Speaker 05:
Any further questions, Judge Rao, Judge Jackson?

[00:29:39] Speaker 05:
All right.

[00:29:39] Speaker 05:
Thank you.

[00:29:39] Speaker 05:
We'll give you a couple of minutes on rebuttal, Mr. Parsons.

[00:29:42] Speaker 05:
Thank you.

[00:29:43] Speaker 05:
We'll hear from Mr. Adler.

[00:29:47] Speaker 04:
Thank you, Your Honors.

[00:29:48] Speaker 04:
May it please the Court.

[00:29:49] Speaker 04:
My name is James Adler, I represent the Nuclear Regulatory Commission in the United States.

[00:29:55] Speaker 04:
The Iglaola Sioux Tribe and other interveners in this case filed numerous adjudicatory contentions through the NRC's adjudicatory hearing process, which produced a number of Board and Commission decisions, as some of Your Honors' questions have recognized.

[00:30:12] Speaker 04:
All of the issues petitioners raised in their briefs were dispositioned through these hearing decisions.

[00:30:19] Speaker 04:
But petitioners briefs, and really, again, the petitioners here at argument, largely ignore what the board and commission actually said in these decisions.

[00:30:28] Speaker 04:
And petitioners also largely have ignored the underlying record documents that the board and the commission relied on in making these decisions.

[00:30:36] Speaker 04:
Petitioners instead proceed essentially as if the NRC through this extensive decade-long hearing process never spoke to any of these issues.

[00:30:45] Speaker 04:
NRC's hearing decisions, as our brief discusses, reasonably disposition these various contentions that are the subject of this court case.

[00:30:54] Speaker 04:
As petitioners fail to grapple with the NRC's reasoning and the underlying record support for it in any meaningful way, this court should deny the petition for review.

[00:31:05] Speaker 05:
Can you just address for me, if we were to find that 40 CFR 150221, the CEQ regulation is applicable here, do you agree that with the petitioner's contention that that regulation was not complied with in this instance?

[00:31:35] Speaker 04:
No, Your Honor, the finding in the hearing process was that.

[00:31:40] Speaker 04:
whether or not it applies.

[00:31:43] Speaker 04:
I think the NRC's position is not legally binding, but even if it were, the NRC complied with it through the adjudicatory record developed in the hearing process, consistent with court decisions.

[00:31:56] Speaker 04:
And I think the licensing board went through the various criteria of that CEQ regulation, found that they'd been complied with

[00:32:07] Speaker 04:
and didn't see a need to require an essentially redundant EIS supplement to say, here's what the hearing process already said and all these publicly available hearing decisions.

[00:32:20] Speaker 05:
Further, there's no... But I guess that begs the question of... So you're saying that you understand it's not literal compliance, but...

[00:32:34] Speaker 05:
the non-compliance wasn't prejudicial error seems to be what your position is.

[00:32:41] Speaker 04:
Your honor, I think there are two things.

[00:32:43] Speaker 04:
The first is the judicial acceptance thus far of the NRC's approach of using this public hearing process in appropriate situations to supplement the IAS.

[00:32:55] Speaker 04:
And here there was no

[00:32:57] Speaker 04:
additional cultural resource information to report in a supplement to the already completed EIS.

[00:33:04] Speaker 04:
So this would have been a supplement explaining why there is no environmental impact information, which isn't something that trips the judicial standard for requiring a supplement under NEPA, which is new and significant environmental impact information that

[00:33:20] Speaker 04:
paints a seriously different picture of the environmental landscape.

[00:33:23] Speaker 04:
Here it's the same picture.

[00:33:25] Speaker 04:
There's just some additional hearing decisions that are already publicly available that provide more information on why no additional environmental impact information.

[00:33:35] Speaker 02:
But the regulation has more specifics to it than that, right?

[00:33:38] Speaker 02:
It's not just, I understand if the regulation that Judge Wilkins was asking about was just the part about explain why this information is not available.

[00:33:50] Speaker 02:
But it seems to me that 40 CFR 1502.22B1 has some pretty detailed requirements for what the agency is supposed to say.

[00:34:04] Speaker 02:
So is it your position that the record of the hearing evaluated the impacts

[00:34:13] Speaker 02:
based on theoretical approaches or research methods generally accepted in the scientific community.

[00:34:19] Speaker 02:
That's one of the prongs here.

[00:34:22] Speaker 04:
Governor, I think the licensing board's 2019 decision went through these issues in the most detail.

[00:34:29] Speaker 04:
I think this has to be understood in the context of the information the NRC was trying to gather, which was information that really only the Iglala Sioux tribe can provide, which is the Iglala Sioux tribe's views on whether there are any features at the site or any properties at the site that are of cultural importance to the Iglala Sioux tribe.

[00:34:50] Speaker 04:
the Igla'el Sioux Tribe's position aggressively throughout the proceeding was that only the Igla'el Sioux Tribe can provide this information before it discusses this several times in its decisions.

[00:35:02] Speaker 04:
And so, I mean, the fact that the NRC tried several times to get this information from the Igla'el Sioux Tribe to arrange surveys so that the Igla'el Sioux Tribe would have representatives out at the site to provide input, and they didn't,

[00:35:18] Speaker 04:
I mean, this is the context zones we're operating here.

[00:35:21] Speaker 04:
I don't think there's, you know, scientific methodologies and things like that to investigate here.

[00:35:28] Speaker 03:
Yes.

[00:35:28] Speaker 03:
To that point, after, you know, the survey didn't take place, why did the commission not conduct oral interviews with the tribe about the cultural resources?

[00:35:40] Speaker 03:
I mean, isn't that a step that the commission could have taken even without the surveys?

[00:35:47] Speaker 03:
or should have arguably taken?

[00:35:48] Speaker 04:
Your honor, and the commission discussed this in its 20-9 decision a bit.

[00:36:00] Speaker 04:
The interviews, I think, seemed like the petitioners are arguing that the NRC should have just gone out and conducted these oral interviews.

[00:36:10] Speaker 04:
that would go outside of the usual government to government consultation approach used in in this culture resource contact.

[00:36:21] Speaker 04:
And the tribe had been pushing all along for.

[00:36:24] Speaker 04:
the NRC to ensure that consultations were on a government-to-government basis.

[00:36:29] Speaker 04:
So the idea that the NRC would just go out and directly interview tribe members, not through the Igala Sioux tribe, it just wasn't consistent with anything that had been contemplated in the proceeding to that point.

[00:36:45] Speaker 04:
And I think the methods, excuse me.

[00:36:49] Speaker 03:
Sorry, go ahead.

[00:36:50] Speaker 03:
A bit more about that in terms of the government.

[00:36:52] Speaker 03:
So you think the individual oral interviews would be inconsistent with the government to government approach?

[00:37:00] Speaker 03:
What about the RC's obligation to satisfy NEPA and the NHPA?

[00:37:11] Speaker 04:
Right.

[00:37:12] Speaker 04:
Well, the oral interviews I think were considered as part of the overall approach that would involve a survey and oral interviews to provide additional information on properties identified through the survey.

[00:37:29] Speaker 04:
I don't think they were contemplated by the NRC at any point as just a standalone activity that wouldn't be related to the survey.

[00:37:36] Speaker 04:
So this would have been a very significant change in addition to

[00:37:40] Speaker 04:
you know, seemingly being outside of the government to government process because this was not something that the Igla'el Sioux tribe had arranged.

[00:37:50] Speaker 04:
This was something the Igla'el Sioux tribe said, hey, you didn't do this, you could have done this, but it was always contemplated as part of the, you know, some agreed upon survey approach and as a component to inform the results of that survey.

[00:38:05] Speaker 02:
Mr. Parsons, excuse me, Mr. Adler, can you speak to Mr. Parsons characterization of why the negotiations broke down?

[00:38:14] Speaker 02:
He suggested that it was really the staff that gave up on the process.

[00:38:22] Speaker 04:
Your Honor, and the staff's determination and

[00:38:26] Speaker 04:
when it decided to cease negotiations, it was based on the clear, wide, and even expanding gulf between the parties and the fact that now many years into this process of

[00:38:44] Speaker 04:
consulting with tribes and then the additional years of focused consultation with the Igla'la Sioux tribe, things didn't seem to be getting towards any sort of actual survey being conducted.

[00:38:57] Speaker 04:
In 2018, the Igla'la Sioux tribe had the licensing board and the staff

[00:39:08] Speaker 04:
convinced that the Iglaola Sioux tribe was fine with the so-called March 2018 approach that the NRC staff working with a contractor had developed.

[00:39:21] Speaker 04:
This is at JA 1840 in the joint panics.

[00:39:28] Speaker 04:
And then,

[00:39:30] Speaker 04:
This was in the spring and the winter and spring in 2018.

[00:39:37] Speaker 04:
Then in June, the tribe called a halt to the survey as it was getting in motion, said, and we want to hold a meeting instead.

[00:39:50] Speaker 04:
The NRC staff complied, put off starting the survey, went to the meeting.

[00:39:56] Speaker 04:
And at that meeting, the tribe presented this quality services contractor proposal that the tribe had obtained that would have involved many more people, much more time to survey the site, a much larger geographical area to survey, would have cost the neighborhood of $2 million.

[00:40:20] Speaker 04:
and then said, all right, now, NRC staff, your job is to take this new proposal we've just given you at the 11th hour right before our survey and figure out a way to fit this into whatever you think is a reasonable budget.

[00:40:36] Speaker 04:
And the NRC staff, I think, very reasonably did not know what to do with that.

[00:40:40] Speaker 04:
And then a similar cycle, not quite the same, but repeated in 2019.

[00:40:46] Speaker 04:
When the NRC staffs contractor developed a methodology referred to as the, the February 19 or 2019 methodology is that joint appendix 1864 to 1887, which the.

[00:41:02] Speaker 04:
petitioners say was not a methodology, but it was a draft methodology with room for the tribe to provide input to the extent that it wanted to, as well as for other Sioux tribes that were participating at the tribe's request in this process to provide input.

[00:41:21] Speaker 04:
And at a meeting to discuss this, as the board chronicled in its 2019 LBP 19-10 decision, the

[00:41:31] Speaker 04:
the response to this methodology was essentially, you need to redraft this whole thing.

[00:41:36] Speaker 04:
And here are things we want in it, which sounded very much like the $2 million quality services proposal.

[00:41:46] Speaker 02:
We do have that LBP 1910.

[00:41:50] Speaker 02:
And I tried to ask Mr. Parsons whether or not

[00:41:54] Speaker 02:
The story that he was telling about who was responsible for the unavailability was something that he was gleaning from the various records or whether the board sort of set it up that way.

[00:42:06] Speaker 02:
I hear you suggesting, and I see, for example, on JA 897 that there is a recognition of the Oglala Sioux tribe's non-cooperation and that that is really the reason for the

[00:42:23] Speaker 02:
unavailability.

[00:42:24] Speaker 02:
Am I misreading this or was there a commission finding, a board finding that the tribe really was why we don't have this information?

[00:42:38] Speaker 04:
I think it's two things.

[00:42:39] Speaker 04:
There is the finding you're discussing in that section B, the Guala Nus Sioux tribe non-cooperation being a reason for the information being unavailable.

[00:42:51] Speaker 04:
other component was the board with the commission later affirming, finding that the NRC staff had proposed reasonable methods for obtaining this information through a survey and the Iglaola Sioux tribe had rejected those.

[00:43:08] Speaker 04:
So I think absent

[00:43:09] Speaker 04:
If the NRC staff had proposed nothing or its proposals had not been found reasonable, then we might be in a different place.

[00:43:16] Speaker 04:
But the board and the commission found that the NRC staff had made reasonable proposals to carry out what the petitioners say is the NRC's responsibility to try to obtain this information.

[00:43:28] Speaker 04:
But those proposals were rejected.

[00:43:35] Speaker 04:
Your honors, I see my time is up.

[00:43:37] Speaker 04:
If there are any specific issues you'd like me to address, I'm happy to.

[00:43:41] Speaker 05:
Judge Rao, Judge Shaxson.

[00:43:48] Speaker 05:
Yeah.

[00:43:48] Speaker 05:
All right.

[00:43:48] Speaker 05:
Thank you, counsel.

[00:43:49] Speaker 05:
Thank you, your honors.

[00:43:50] Speaker 05:
Here from Council for Intervener.

[00:43:55] Speaker ?:
Good morning, Your Honors.

[00:43:56] Speaker ?:
May it please the Court.

[00:43:57] Speaker ?:
My name is Christopher Pugsley.

[00:43:59] Speaker 01:
I'm here on behalf of the intervener in this case and the current NRC licensee, PowerTech USA, Inc.

[00:44:08] Speaker 01:
While there have been a few other contentions raised on appeal by petitioners other than cultural resources,

[00:44:18] Speaker 01:
I think this court would benefit from a quick overview of how NRC conducts its licensing and regulatory oversight over ISR projects in situ recovery.

[00:44:34] Speaker 01:
First, the Atomic Energy Act and the commission's implementing regulations dictate that a multi-tiered approach must apply to ISR, not can, but must.

[00:44:47] Speaker 01:
First, you have to obtain a license.

[00:44:51] Speaker 01:
All that requires is an application that shows sufficient information to assess the award body and the surrounding license site area to make sure that NRC's statutory mandate is satisfied.

[00:45:07] Speaker 01:
which is that the measures taken are adequately protective of public health and safety and the environment from potentially significant adverse impact as we discuss on page 10 of our brief.

[00:45:21] Speaker 01:
Once the license is issued, before the licensee can even start doing site-specific construction, they must demonstrate to NRC that they have obtained all other relevant permits

[00:45:38] Speaker 01:
PowerTech is currently in possession of a underground injection control permit and an aquifer exemption under a statute the petitioners don't even bring into question, which is the Safe Drinking Water Act.

[00:45:53] Speaker 01:
And currently for the state of South Dakota, the U.S.

[00:45:57] Speaker 01:
Environmental Protection Agency retains jurisdiction to issue that.

[00:46:03] Speaker 01:
And that was issued and it is now on appeal.

[00:46:07] Speaker 01:
But most importantly, with respect to groundwater, the aquifer exemption clear-cut objective definition in the statute is the water in the ozone cannot now nor ever in the future serve as a source of public drinking water.

[00:46:30] Speaker 01:
PowerTech is also required to get two permits from the state of South Dakota, which we have not yet obtained.

[00:46:37] Speaker 01:
Truth be told, we can't do anything at the site right now anyway.

[00:46:42] Speaker 01:
After all the permits are obtained, the licensee is allowed to construct the site, but that's not the end of the regulatory oversight from NRC.

[00:46:53] Speaker 01:
NRC is responsible for these projects for conducting what is known as a pre-operational inspection.

[00:47:01] Speaker 01:
And this goes directly to the by-product material issue petitioners raised

[00:47:07] Speaker 01:
the groundwater issue that they raise and the mitigation measures issue they raise.

[00:47:14] Speaker 01:
Because if the standard operating procedures prescribed by NRC for mitigation are not in place to NRC's standards, or if a byproduct material contract is not in place, or

[00:47:36] Speaker 01:
if PowerTech hasn't adequately defined what petitioners seem to think is turned baseline groundwater data, but it's not.

[00:47:47] Speaker 01:
The actual groundwater data has to establish what is known under 10 CFR part 40 appendix A criterion 5B5 of what's known as commission approved background.

[00:48:01] Speaker 01:
So because you cannot,

[00:48:05] Speaker 01:
actually get commission approved background without installing a complete well field with the monitor well ring.

[00:48:14] Speaker 01:
Because the monitor wells are designed to detect what are called excursions.

[00:48:20] Speaker 01:
And those are early warning systems that mobile constituents have released to the monitor well.

[00:48:29] Speaker 01:
And then at that point, you have to cease operations and bring back

[00:48:35] Speaker 01:
those constituents to NRC's satisfaction.

[00:48:38] Speaker 02:
So Mr. Pugsley, you seem to be talking about whether and to what extent any harms are actually gonna occur.

[00:48:47] Speaker 02:
No construction is yet started and here are all the other regulations that would control it.

[00:48:55] Speaker 02:
Do you have a view about whether or not

[00:49:00] Speaker 02:
the commission has violated the procedural regulations concerning the preparation of the environmental impact statement.

[00:49:12] Speaker 02:
Do you have any view on that part of this case?

[00:49:16] Speaker 01:
Yes, Your Honor, I do.

[00:49:18] Speaker 01:
I believe that the NRC staff, through the concurrence of the licensing board and the commission, did satisfy both statutes.

[00:49:29] Speaker 01:
Most importantly, with respect to the National Historic Preservation Act, the statute basically says you are required to consult, but you cannot force a tribe to come out to the site.

[00:49:45] Speaker 01:
That's not a prerequisite to approval of a license issuance.

[00:49:51] Speaker 01:
With respect to the rest of the SEIS, these matters like groundwater,

[00:49:59] Speaker 01:
um by project material waste management as you put earlier um they were delay of the land the standard format delay of the land is set up in what's section three of the supplemental eis and the impact analysis is in section is in chapter four so that is pretty much it and what i would like to say about isr projects is they are

[00:50:30] Speaker 01:
handled, regulated, and developed pretty much with limited exceptions the same way.

[00:50:39] Speaker 01:
And that's the reason why the NRC staff was able to develop a generic or programmatic environmental impact statement, which they used to tier the supplemental EIS off of.

[00:50:54] Speaker 01:
And tiering, NRC staff said when they developed it,

[00:50:59] Speaker 01:
is an accepted CEQ approach to dealing with a programmatic environmental impact state.

[00:51:06] Speaker 02:
And so you don't see anything deficient about the primary generic one or the supplements in this case, given your experience and you say this happens all the time?

[00:51:21] Speaker 01:
No, ma'am, I see no defects.

[00:51:23] Speaker 01:
And you have to also take that

[00:51:27] Speaker 01:
There are two aspects to a license approval.

[00:51:31] Speaker 01:
One is the supplemental EIS.

[00:51:35] Speaker 01:
And then there is also an accompanying safety evaluation report that addresses the technical matters.

[00:51:43] Speaker 01:
Then there is the totality of the administrative record, which is known as the record of decision.

[00:51:51] Speaker 01:
And by commission case law,

[00:51:56] Speaker 01:
Licensing boards can amend a license or an EIS by affirmative judicial decision.

[00:52:07] Speaker 01:
And the reason I'm saying this is it happened the same way in the NRDC versus NRC case involving Strata Energy.

[00:52:17] Speaker 01:
The board instituted a brand new license condition, which frankly, if you ask me, I think was a bit unprecedented.

[00:52:26] Speaker 01:
They said you have to plug all the abandoned boreholes before you proceed.

[00:52:33] Speaker 01:
Now, the way ISR works, your honor, is they do what are called pump tests when a well field is fully installed.

[00:52:43] Speaker 01:
The pump tests are designed to detect whether there's communication between abandoned boreholes and the ozone water.

[00:52:56] Speaker 01:
And every site that has ever been licensed in this country has multiple abandoned boreholes because you got to find the ore block and delineate it.

[00:53:08] Speaker 01:
So I would say, Your Honor, the short answer to your question is the record of decision is complete.

[00:53:18] Speaker 01:
I'd just like to offer one thought on the cultural resources.

[00:53:25] Speaker 01:
very little has been mentioned about the programmatic agreement.

[00:53:30] Speaker 01:
And as Mr. Parsons said, the programmatic agreement was added as a condition, they added condition to it, which is fine.

[00:53:38] Speaker 01:
We don't, PowerTech has no argument with that.

[00:53:41] Speaker 01:
But the point is the programmatic agreement on the 36 CFR part 800 is by far the most stringent approach

[00:53:52] Speaker 01:
to site development monitoring of cultural resources.

[00:53:58] Speaker 01:
The Advisory Council on Historic Preservation, and this is at JA898, signed a letter, and this was almost unprecedented.

[00:54:10] Speaker 01:
I'm not familiar with any other time they've ever done this, but they signed a letter to NRC that said, you have satisfied

[00:54:19] Speaker 01:
the reasonable and good faith standard under the NHPA.

[00:54:25] Speaker 01:
So, and that is very, very important.

[00:54:30] Speaker 01:
And then there is yet one more additional safeguard that Mr. Parsons has failed to allude to on cultural resources, which is there is a standard clause condition.

[00:54:44] Speaker 01:
I'm sorry, your honor.

[00:54:45] Speaker 01:
a condition put in every single ISR license called an unanticipated discovery clause, which is if you are say hypothetically excavating some material to lay a foundation for a processing plant or you're drilling a well and you find something at nine, 10 feet down, the rule is you have to immediately stop what you're doing

[00:55:13] Speaker 01:
and get qualified experts out there to evaluate it, to find out whether there is mitigation available, such as fencing it off, which they did at the Church Rock site in New Mexico for hydro resources.

[00:55:34] Speaker 01:
That case was evaluated by the 10th Circuit.

[00:55:38] Speaker 01:
But it doesn't preclude you

[00:55:44] Speaker 01:
from destroying a cultural resource if it's not significant.

[00:55:50] Speaker 01:
And I'm not saying that's something we want to do because we really don't.

[00:55:54] Speaker 01:
But I would say that that is an additional safeguard put in on cultural resources.

[00:56:01] Speaker 01:
Now, most importantly, on the programmatic agreement, we can forget about all the provisions associated with it for the time being.

[00:56:08] Speaker 01:
But the tribe did not sign

[00:56:15] Speaker 01:
And typically in the case of programmatic agreements or memoranda of agreements under 36 CFR part 800, tribes don't sign them.

[00:56:27] Speaker 01:
So, which is fine, but Mr. Parsons' client is allowed once we start to develop the site that the lawless who can just come out and say, look, we want to be part of the process.

[00:56:42] Speaker 01:
And they're free to do so.

[00:56:45] Speaker 01:
And I mean, it goes to show you that NRC, along with EPA in the state of South Dakota, this is a three-way regulation of a property that is by far the most environmentally benign form of mining in this country.

[00:57:06] Speaker 01:
So your honors, I apologize.

[00:57:08] Speaker 01:
I've significantly gone over my time.

[00:57:11] Speaker 01:
If I may sum up or answer any other questions you have,

[00:57:15] Speaker 05:
Judge Rao, Judge Jackson.

[00:57:18] Speaker 05:
All right.

[00:57:19] Speaker 05:
Thank you, counsel.

[00:57:20] Speaker 01:
Thank you.

[00:57:22] Speaker 05:
All right.

[00:57:22] Speaker 05:
Counsel for petitioner, you were out of time, but we'll give you two minutes for both.

[00:57:28] Speaker 06:
Thank you, your honor.

[00:57:28] Speaker 06:
I appreciate that.

[00:57:30] Speaker 06:
I just want to address a couple of things with respect to Mr. Adler's argument on behalf of the

[00:57:36] Speaker 06:
the agency, there was no bar to proceeding with conducting oral interviews.

[00:57:44] Speaker 06:
The tribe encouraged that.

[00:57:47] Speaker 06:
And in fact, 1502, 22, or 21, there's some confusion just because the regs have been changed since.

[00:57:55] Speaker 06:
It was 22 when all relevant matters in this case occurred.

[00:58:00] Speaker 06:
So that's what we've been referring to.

[00:58:02] Speaker 06:
It's 21 now.

[00:58:05] Speaker 06:
does require additional information to be, all existing information to be accounted for.

[00:58:12] Speaker 06:
And as was laid out in the record, there are multiple declarations from Lakota people who indicate that they have information about the site and would have been willing to provide that

[00:58:25] Speaker 06:
It's not that the Oglala Sioux Tribe government is the keeper of all cultural resources information of the Lakota people.

[00:58:34] Speaker 06:
It's that the statute, the National Historic Preservation Act requires consultation with the tribe.

[00:58:40] Speaker 06:
So there's certainly additional information out there that NRC could have and should have acquired.

[00:58:48] Speaker 03:
I think the NRC's position was not that there might not be such information, but that seeking such information in individual interviews would

[00:58:55] Speaker 03:
would upset the government-to-government relationship or consultation?

[00:59:01] Speaker 06:
I don't think there's any basis for that anywhere in the record.

[00:59:05] Speaker 06:
The government-to-government or the consultation issues derived from the National Historic Preservation Act.

[00:59:10] Speaker 06:
What we're talking about is the National Environmental Policy Act is the 1502-22 requirements.

[00:59:18] Speaker 06:
And as you see in Joint Appendix 1709 and forward,

[00:59:23] Speaker 06:
There are multitudes of people with relevant information who are ready, willing and able to discuss with the agency.

[00:59:32] Speaker 06:
I just want to address the

[00:59:37] Speaker 06:
Mr. Pugsley's reference to the Advisory Council on Historic Preservation letter and the programmatic agreement.

[00:59:46] Speaker 06:
Both of those documents were finalized in 2014 prior to the Atomic Safety Licensing Board finding that neither NHPA nor the National Environmental Policy Act had been complied with.

[00:59:59] Speaker 06:
So those do not somehow rehabilitate

[01:00:02] Speaker 06:
The, the statutory violations.

[01:00:06] Speaker 06:
At this point, those were well in the record prior in.

[01:00:10] Speaker 06:
In fact, if you look at the programmatic agreement.

[01:00:12] Speaker 06:
It is predicated.

[01:00:16] Speaker 06:
predicate, prerequisites for that document is that it's a finding that there have been adequate cultural resource analysis or surveys conducted.

[01:00:27] Speaker 06:
And that was found to be not true, adjudicated, found to be not true by the board as affirmed.

[01:00:33] Speaker 02:
Mr. Parsons, can you point us in the record to the place in which the tribe encouraged direct interviews without a site survey?

[01:00:45] Speaker 06:
We did that in our briefing.

[01:00:48] Speaker 06:
Also, I think one of the best places to look are the letters that were exchanged between NRC and the tribe.

[01:00:59] Speaker 06:
The tribe's letter, again, at JA 1857, I think is a...

[01:01:05] Speaker 06:
a good example of the tribe explaining how it's been consistent throughout and how it's been trying to require the agencies to come through and participate with the tribe in developing the methodology.

[01:01:25] Speaker 02:
And yet it appears Mr. Parsons my last question is yet it appears that the board and it's very lengthy

[01:01:33] Speaker 02:
recitation of what happened according to it.

[01:01:37] Speaker 02:
And I'm talking about the final decision after the hearing.

[01:01:43] Speaker 02:
Gosh, I don't even know where I am.

[01:01:46] Speaker 02:
J.A.

[01:01:47] Speaker 02:
8 in the 800s and 900s talks about the facts in a way that seems inconsistent with the inferences that you would have us draw from things like the letters.

[01:02:02] Speaker 02:
And I'm wondering what we, as the appellate body, what we can do in terms of looking at the facts.

[01:02:09] Speaker 02:
Aren't we, to some extent, to give deference to what the board found were the facts about who cooperated, who didn't cooperate, whether it was reasonable or unreasonable to interview witnesses or the like, whether there was a valid methodology proposed by

[01:02:30] Speaker 02:
the staff.

[01:02:31] Speaker 02:
I mean, it seems like all of that is covered in this lengthy determination of the board that involves a lot of facts.

[01:02:39] Speaker 02:
And ordinarily, we give deference to an agency in its determinations of fact, particularly after a lengthy evidentiary hearing.

[01:02:49] Speaker 06:
All right.

[01:02:50] Speaker 06:
Thank you, Your Honor.

[01:02:50] Speaker 06:
I would say that the facts or any findings with respect to who

[01:02:59] Speaker 06:
Who was at fault for pulling back on the cultural resources surveys is is largely irrelevant on the law.

[01:03:07] Speaker 06:
The law applies.

[01:03:08] Speaker 06:
It's rather it's the Nuclear Regulatory Commission's obligation to comply with the National Environmental Policy Act, if the

[01:03:17] Speaker 06:
If the commission felt like the tribe was not going to participate, then it had other avenues to pursue and was legally obligated to do so.

[01:03:27] Speaker 06:
It's the agency's responsibility to meaningfully consult with the tribe in good faith under the National Historic Preservation Act.

[01:03:38] Speaker 06:
And it's the agency's responsibility to comply with its environmental review responsibilities for cultural resources.

[01:03:45] Speaker 06:
And as we quoted in our briefs a couple of times, the agency cannot push those obligations off on the third parties.

[01:03:51] Speaker 06:
And that's basically what's occurring in this case is that the NRC is saying, well, if the tribe isn't playing the way we'd like them to play, then we don't have to comply with our statutory responsibilities.

[01:04:05] Speaker 06:
And that's just not what the law

[01:04:07] Speaker 06:
says.

[01:04:07] Speaker 06:
Again, we dispute that the tribe was somehow recalcitrant.

[01:04:13] Speaker 06:
I think in particular, those interactions in February and March of 2019 that I alluded to in the record at JA 1888 and 1857 do shed considerable light on that issue.

[01:04:27] Speaker 06:
So I would encourage a review of those interactions.

[01:04:32] Speaker 05:
All right.

[01:04:33] Speaker 05:
Thank you.

[01:04:33] Speaker 05:
We have your argument.

[01:04:34] Speaker 05:
We'll take the case under advisement.