Citizens for Alternatives v. U.S. Dept. of Energy

• Decision Date: 03 May 2007
• Docket Number: No. 04-2314.,04-2314.
• Citation: 485 F.3d 1091
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: CITIZENS FOR ALTERNATIVES TO RADIOACTIVE DUMPING, Betty Richards, and Bob Gaston, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF ENERGY, and Samuel W. Bodman,<SMALL><SUP>*</SUP></SMALL> United States Secretary of Energy, Defendants-Appellees.

485 F.3d 1091

CITIZENS FOR ALTERNATIVES TO RADIOACTIVE DUMPING, Betty Richards, and Bob Gaston, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF ENERGY, and Samuel W. Bodman,^* United States Secretary of Energy, Defendants-Appellees.

No. 04-2314.

United States Court of Appeals, Tenth Circuit.

May 3, 2007.

John A. McCall, Albuquerque, New Mexico on the briefs, for Plaintiffs-Appellants.

Jennifer L. Scheller, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Kelly A. Johnson, Acting Assistant Attorney General, and John A. Bryson, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C., David C. Iglesias, United States Attorney, and Raymond Hamilton, Assistant United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico, and Elizabeth C. Rose, Of Counsel, Office of the Chief Counsel, United States Department of Energy, Carlsbad Field Office, Carlsbad, New Mexico, with her on the brief), for Defendants-Appellees.

Before MURPHY, BRORBY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

After three environmental impact statements spanning two decades, the Department of Energy (DOE) approved operation in 1998 of the Waste Isolation Pilot Plant (WIPP), a nuclear waste repository located in southeastern New Mexico. Citizens for Alternatives to Radioactive Dumping (Citizens) sought to enjoin the facility's operation under the National Environmental Policy Act (NEPA). Citizens argued DOE relied on faulty data regarding the subsurface geomorphology of the site in its environmental review, thereby under-representing the environmental hazards of waste storage at the site. The district court denied the requested injunction, finding DOE's actions were not arbitrary and capricious.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court's decision.

I. Background

The Facility and Location. Congress approved WIPP near Carlsbad, New Mexico in 1979 to provide "a research and development facility to demonstrate the safe disposal of radioactive waste resulting from . . . defense activities and programs." Pub.L. 96-164, 93 Stat. 1259 (1979). One year later, in 1980, DOE completed its first environmental impact statement for the project as required by NEPA. In 1990, after the completion of most of the WIPP construction, DOE prepared a second supplemental environmental impact statement before facility testing would begin.

Finally, before the facility would begin accepting waste, DOE conducted a third impact statement, the Disposal Phase Final Supplemental Environmental Impact Statement (SEIS-II).¹ It published the SEIS-II record of decision in January of 1998, concluding disposal of radioactive wastes at WIPP was the preferred alternative to other options and authorizing disposal at the site. 63 Fed.Reg. 3,624 (Jan. 23, 1998). In conjunction with the SEIS-II, Congress ordered the Environmental Protection Agency to conduct a parallel environmental assessment. The Agency's review concluded with a finding in 1998 that WIPP would comply with the radioactive waste disposal regulations promulgated by the Agency. 63 Fed.Reg. 27,357 (May 18, 1998).

The waste repository for the WIPP is located 2,150 feet underground, in the Salado Formation, a massive salt bed with low permeability that impedes groundwater flow in and out of the WIPP repository. About 1,400 feet above the WIPP is a fractured layer of dolomite rock called the Culebra Dolomite. The Culebra is the first layer above the Salado Formation with a continuous body of groundwater. Above the Culebra sits 86 feet of claystone, mudstone, and siltstone sandwiched between layers of anhydrite called the Tamarisk Member. Above the Tamarisk Member, another layer of dolomite, the Magenta Dolomite, runs from 621 to 596 feet below the surface. These formations are arrayed as follows:

                Depth Below the
                Geologic Layer Surface in Feet
                  Surface to Forty-Niner             0 to 538
                  Forty-Niner                        538 to 596
                  Magenta Dolomite                   596 to 621
                  Tamarisk                           621 to 707
                  Culebra Dolomite                   707 to 729
                  Lower Part of Rustler
                  Formation                          729 to 844
                  Upper Part of Salado
                  Formation                          844 to 1,343
                  McNutt Potash                      1,343 to 1,727
                  Lower Part of Salado
                  Formation                          1,727 to 2,650
                  WIPP Site                          2,150
                                           Source: Aple. Supp.App. at 144
                

The possibility of radioactive material from the WIPP escaping into the local environment via groundwater was a risk factor considered by the DOE in SEIS-II. In modeling the risk, the DOE chose to investigate the Culebra Dolomite in detail, but not the Magenta, because prior studies included in the SEIS-II record led DOE to conclude the Culebra was the "most transmissive unit at the WIPP site."² Aple. Supp. App at 157. The agency arrived at this conclusion based on a record that established, "[i]n most locations, the hydraulic conductivity of the Magenta is one to two orders of magnitude less than that of the Culebra." Id. at 159. Moreover, the radio-nuclides stored at WIPP would need to make their way through both the Culebra and the Tamarisk, which "functions as a confining layer" due to its low permeability, before reaching the Magenta. Id. at 158. Failure to model the Magenta is the basis for Citizens' appeal.

Citizens' Lawsuit. Citizens first brought common law public nuisance claims in New Mexico state court in 1999, seeking to enjoin the WIPP facility. DOE removed the case to federal court, which denied the request for an injunction. Citizens subsequently amended their complaint to assert an additional claim that the SEIS-II inadequately complied with NEPA. Citizens had previously participated in the public comment phase of SEIS-II. As part of their NEPA claim, Citizens sought to inject evidence outside the administrative record based on research conducted by an expert consultant.

The extra-record evidence allegedly came to light after the record for SEIS-II was completed. Citizens' consultant, Dr. Richard Hayes Phillips has actively studied the geomorphology around the WIPP site for twenty years. In an affidavit prepared for this litigation, he claims during that time to have "witnessed a pattern of lies and deceptions designed to disguise the true hydrology of the . . . site." Aplt. App. at 61. Dr. Phillips supports these allegations for purposes of this appeal with two charges: He points to (1) a 1983 study of the Magenta included in the SEIS-II that relies upon a miscalculated data point at a test well (H-3) drilled near WIPP, thereby understating the groundwater transmissivity of the formation; and (2) penciled editing marks made to include the miscalculation in the study, from which Phillips arrives at the conclusion of "data falsification." Id.

The district court upheld DOE's record of decision. The court concluded (1) the decision was not arbitrary and capricious, and (2) there was no reason to consider the proffered extra-record materials in its review. In particular, the court carefully reviewed a number of charges by Citizens that SEIS-II was inadequate in the way it analyzed the facility's hydrology, geology, and possible release scenarios. The court, while acknowledging the scientific debate surrounding many of the issues, ultimately found support in the administrative record for the decisions made by DOE.

On appeal, Citizens has narrowed the issues to the following: (1) the district court should have admitted extra-record evidence regarding allegations of tampering with and miscalculation of data involving groundwater studies in the Magenta formation; and (2) DOE was arbitrary and capricious in its evaluation of the record by not further investigating the properties of the Magenta based on the allegations raised by Dr. Phillips.³

II. Discussion

A. Extra-Record Evidence

Judicial review of agency action is normally restricted to the administrative record. Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th Cir.2004). It is only in "extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record" that we will consider extra-record evidence. Id. (internal quotations omitted).

We may also delve outside the administrative record when there is a "strong showing of bad faith or improper behavior." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In dealing with scientific and technical evidence, extra-record evidence "may illuminate whether an [environmental impact statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism . . . under the rug." Lee, 354 F.3d at 1242 (internal quotations omitted). We review a district court's determination of whether or not to exclude extra-record evidence for abuse of discretion. Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078, 1089 n. 2 (10th Cir.2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998)).

To support its claim the administrative record should be supplemented, Citizens contends water flow data for the Magenta was concealed and misrepresented. Relying on the allegations contained in Dr. Phillips's 1999 affidavit, Citizens claims the studies based on this misrepresentation led the government to wrongly assume the Culebra was the most transmissive geological layer in the storage facility's proximity. As a result, DOE decided it need not model the transmissive properties of the Magenta layer. Citizens argues that Dr. Phillips's charges satisfy its obligation to make "a strong showing that DOE engaged in bad faith and improper conduct," and therefore...