Morris v. U.S. Nuclear Regulatory Commission, No. 07-9505 (10th Cir. 3/8/2010), No. 07-9505.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtEbel
Docket NumberNo. 07-9505.
Decision Date08 March 2010

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HYDRO RESOURCES, INC., Intervenor-Respondent.
NAVAJO NATION, Amicus curiae.
No. 07-9505.
United States Court of Appeals, Tenth Circuit.
March 8, 2010.

Appeal from the United States Nuclear Regulatory Commission (No. 40-8968-ML).

Eric Jantz, New Mexico Environmental Law Center, Santa Fe, New Mexico (Diane Curran, Harmon, Curran, Spielberg & Eisenberg, L.L.P., Washington, D.C., Zackeree Kelin, DNA-People's Legal Services, Inc., Window Rock, Arizona, with him on the briefs) for Petitioners.

Charles E. Mullins, Senior Attorney, Office of the General Counsel, United States

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Nuclear Regulatory Commission (Ronald J. Tenpas, Acting Assistant Attorney General, John E. Arbab, Appellate Section, Environmental and Natural Resources Division, United States Department of Justice, Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, Steven C. Hamrick, Attorney, Office of the General Counsel, United States Nuclear Regulatory Commission, with him on the brief) Washington, D.C., for Respondents.

Anthony J. Thompson (Christopher S. Pugsley, with him on the brief) Thompson & Simmons, PLLC, Washington, D.C. for Intervenor-Respondent.

Louis Denetsosie, Attorney General and David A. Taylor, Senior Attorney, Natural Resource Unit, Navajo Nation Department of Justice, filed an amicus curiae brief for the Navajo Nation.

Before LUCERO, EBEL and FRIZZELL,* Circuit Judges.

EBEL, Circuit Judge.

The Nuclear Regulatory Commission ("NRC") issued Hydro Resources, Inc. ("HRI") a license to conduct in situ leach mining for uranium on four sites in northwest New Mexico. In this case, Petitioners-Eastern Diné Against Uranium Mining, a Navajo community organization, Southwest Research and Information Center, a non-profit environmental education organization, and two local ranchers, Grace Sam and Marilyn Morris-seek review of the NRC's licensing decision. Petitioners assert that the NRC, in issuing HRI's license, violated two

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federal statutes-the Atomic Energy Act ("AEA"), which sets forth specific requirements that an applicant must meet before obtaining a license, and the National Environmental Policy Act ("NEPA"), which requires, in more general terms, that an agency give a "hard look" to the environmental impact of any project or action it authorizes. Having jurisdiction to review the agency's licensing decision under 28 U.S.C. § 2342(4) and 42 U.S.C. § 2239(b), as well as the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, we DENY the petition for review and uphold the NRC's licensing decision in all respects.


In 1988, HRI applied with the NRC for a license to conduct in situ leach ("ISL") uranium mining at four locations in McKinley County, New Mexico, near the Navajo Indian Reservation. Two of these sites, referred to as Sections 8 and 17, are adjacent to each other and are both located near Church Rock, New Mexico; the other two sites, Unit One and Crownpoint, are located near Crownpoint, New Mexico. The entire project is known as the Crownpoint Uranium Project.

ISL mining involves injecting lixiviant-a mixture of ground water charged with oxygen and bicarbonate-into the "ore zone," the underground geological formation containing the uranium deposits. As the lixiviant is pumped through the ore zone, the uranium dissolves into the lixiviant. This now "pregnant lixiviant" is then pumped back to the surface, where the uranium is separated

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from the lixiviant, processed into yellowcake, and shipped to other facilities to be enriched for use as reactor fuel. The "barren lixiviant" is re-charged with oxygen and bicarbonate and re-injected into the ore zone to repeat the cycle.

In order to conduct its ISL operation, HRI plans to create a number of "well fields" at each mining site. Each "well field" includes one production well located in the midst of several injection wells, all spaced in a five-or seven-well geometric pattern.1 As the lixiviant is pumped by the injection wells through the ore zone, a greater amount of water is extracted through the middle production well, lowering the pressure in the center of the well field and thereby drawing the uranium-enriched lixiviant to the production well to be pumped to the surface. The production and injection wells, which tap into the Westwater Canyon aquifer, will be surrounded by monitoring wells, both horizontally in that aquifer and vertically in other aquifers, to insure that there are no excursions of lixiviant outside each well field being mined.

In 1997, the NRC, in cooperation with the Bureau of Land Management ("BLM") and the Bureau of Indian Affairs ("BIA"), issued a final environmental impact statement ("FEIS"), recommending that the NRC grant HRI's license

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application.2 The NRC did so, issuing HRI a license in January 1998.

This license imposes a number of requirements on HRI. Chief among those is the requirement that, when HRI is finished mining each site, it must reclaim the site and restore the quality of the groundwater. In order to insure this restoration occurs, the license requires HRI to provide a surety to cover the estimated cost of those reclamation efforts.

The NRC, during its proceedings addressing HRI's license application, permitted Petitioners to intervene because they, or their members, "use[] a substantial quantity of water personally or for livestock from a source that is reasonably contiguous to either the injection or processing sites" for the proposed mining locations. In re Hydro Res., Inc., 47 N.R.C. 261, 263, 275-78, 286 (1998), rev'd in part on other grounds, 48 N.R.C. 119 (1998). After issuing HRI its license, the NRC conducted a bifurcated informal adjudicatory hearing, pursuant to 10 C.F.R. Part 2, Subpart L.3 See In re Hydro Res., Inc., 47 N.R.C. at 263.

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In Phase I of these administrative proceedings, the NRC conducted a hearing specifically addressing only the Section 8 site near Church Rock. The NRC addressed this site first because that is where HRI intends to begin its ISL operations. In a series of decisions, the NRC upheld HRI's license as it pertained to that one site. Phase II of these administrative proceedings then addressed HRI's other three mining sites, ultimately upholding HRI's license as it pertained to those sites, as well.

In this petition for review, Petitioners now challenge several of the NRC

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determinations pertaining only to the Church Rock Sections 8 and 17 sites. This court granted both HRI's motion to intervene in this review proceeding and the Navajo Nation's request to file an amicus brief.


The licensed area in Section 17, located near Church Rock, New Mexico, is

on land held in trust by the U.S. Government for the Navajo Nation and leased by the Bureau of Indian Affairs to local residents who live and graze their livestock there. Three families live on Section 17 inside the licensed area, and approximately 850 people live within five miles of the Section 8 and Section 17 mining sites.

(Pet. Br. at 14 (citing Jt. App. at 245, 835-38).) "HRI's licensed area on Section 17 includes the site of the abandoned Old Church Rock Mine, an underground [conventional] uranium mine that operated in the early 1960s and from 1977 to 1983[,] before it was purchased by HRI." (Id. at 15 (citing Jt. App. at 1354).) As a result of that prior mining operation, the site contains debris and waste that emit airborne radiation.4

Petitioners contend that the NRC, in considering HRI's licensing application, failed to take into account the airborne radiation already being emitted at Section 17, contrary to both the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978 ("AEA"),

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42 U.S.C. §§ 2011-2297h-13, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f.

A. Atomic Energy Act

NRC regulations promulgated under the AEA limit the amount of airborne radiation from an NRC-licensed operation to 0.1 rem in a year. See 10 C.F.R. § 20.1301(a)(1). The parties agree that HRI's ISL mining will emit only negligible airborne radiation, well under that limit. The problem at Section 17 is that the debris from the prior conventional mining operation already emits a greater amount of airborne radiation than the NRC regulations allow, even before considering the airborne radiation that the ISL mining might produce. Petitioners argue that because this site already exceeds the airborne emissions allowed under § 20.1301(a)(1), the NRC cannot license another operation on that same site. The NRC, however, interpreted its regulations instead to require the agency to consider under § 20.1301(a)(1) only the amount of airborne radiation that the operation seeking the license-here, HRI's ISL mining-will emit irrespective of the airborne radioactive emissions already occurring on the site. See In re Hydro Res., Inc., 63 N.R.C. 510, 512, 515 (2006). Affording the agency's interpretation of its own regulations proper deference, we uphold that determination.

1. Standard of review

As Petitioners acknowledge, "[w]e must give substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson Univ. v.

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Shalala, 512 U.S. 504, 512 (1994) Here, then, "[o]ur task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Id. (quotations omitted); see also Fed. Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008); Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 672 (2007); Ariz. Pub....

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