environmental impacts this court has repeatedly held that i don't need an agency must consider every significant aspect of the environmental impact of a proposed action prior to its decision the hearing bo enough to require modification or renewal of the process right your honor the board found that the analysis was necessary to support the agency's decision it further analyzed significance of the information and it created some rationalizations for nuts but at the forefront it found that the information was necessary to the decision and therefore the board had to stop  right so i mean he understands your argument it completely bars a process in which there's a provisional decision with review of it afterwards longer be in fact that doesn't mean it was in effect prior to your decision and so that's the issue here is that the liaison's was in fact prior to the hearing all of the cases relied on by the government deal with a situation where the decision wasn't made at the time of the hearing that's not what we have here we have a license that was issued prior to the hearing it was a label draft it wasn't provisional it was a final decision  consequences of the level of uranium in groundwater after mining the agency ignored what it is it's supposed to prevent and minimize them are some harm on what is looks to me like there's no harm no foul well they haven't considered so there's two parts here there's the information that the agency provided the words and then there's information that they had to also provided or which showed that the agency seriously miscalculated the level of environmental harm to groundwater and we believe if the process was reminded back to the agency all of this would be better considered from the agency's decision but at the very least it would be disclosed to the public and there would be that what remains to be added is the decision that flows from not in so you know neither is it just about information being out there it's the need that comes from need but is that that information was considered as part of the agency's decision but the the by because they modify the life of me that it was necessary to demonstrate that they considered it was strong evidence from the fact they modify the license that they considered it great and read the license modification after the hearing it had nothing to do with this issue it was procedural of modification it was related to another contention that we had brought it wasn't related to this contention the record of this issue and that was modified just incorporated reasoning whenever the court really mans that's exactly what your half post hoc reasoning and and what the court was really aiming at was representations by agency council as opposed to a decision by the agency but here supposed to post hoc is usually agency counsel coming up with reasons for the agencies and that's what we're usually referring to here he seems to me he wanted you want to do over because maybe somehow you can get a different result is the agency to take that charge underneath a seriously to do with every other and ministry of agency does which is to make sure that environment hermes and that's necessary for them to consider is are their decision is considered as part of their decision and here they provided after the fact of the hearing the board said it was necessary the staff provided testimony because it was necessary but it was all after the fact it wasn't part of that decision and so what we'd like you to do important to to separate out the questions and in order to get to need but any kind of meeting and then there's this process you have to make the agency follow it and here they just did it and they you know provide all want the agency to consider this information and we can't prejudge what will happen we're going to consider hash research what is the information not consider trivial work so the information relates to the level of groundwater contamination from uranium that is likely to occur after this process is and what has happened in every other single uranium mine and why only in my state and throughout the west is that no company has restored ground water to clean mine conditions there's always been a level of groundwater contamination that's been higher than what's called baseline and so the staff testimony said that in some cases that's seventy one times the level of baseline so there's the 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 that's hard to honor and the board agreed with petitioners throughout the entire three year hearing process on the point that every single other company has contamination and based on the historic practice and history of other mine operators that it was probable it was reasonably forseeable that there would be ground water   evil lens and resolve these issues under familiar standards of review when the court is taking its hard look at what the agency has done through this licensing proceeding we believe the court should be as the councils to challenge 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 which is considered all the issues whether these and has taken  in the midst of that process are over and therefore when a license is issued if you focus on that moment in time time they would say that's not the heart or has not occurred at least not properly occurred that moment in time 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 the commission should have in fact reminded or took some action upon the license the standard there we believe is an arbitrary and capricious one i think it is senator our review  board or of the commission the review of both whose review 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 the the impacts analyses that the staff is already performed and so on two levels of review in both instances both the board and the commission made that determination that we this information is not material enough in our judgment to require revisitation of the impacts analyses the staff is already performed the staff in the us said that impacts would be small we've looked at the staff's analysis we've considered the new analyse or the of the new information that has been brought forth to the agency's attention through this additional section one eighty nine hearing process and we do not in our judgment believe that the information is until enough concern that you do you know half baked yeah scram for a license and then it's fixed in an internal agency review but the idea would be that the license might not have been granted had the we first look later approach but a couple of things that i would i would say in that regard first and foremost is the availability of the agency's procedural regulations to obtain a stay of the licensing decision of 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 of being a commission worker i don't think the client hears harm except in the sense that they train will be perceived to have left the station and the big no no remicade no matter how drastic they are metal adverse findings are right and that's just one consideration of why i think that the hearing process is is reasonable and enables the agency to overall take a hard look at the environmental effects of its actions the other is and we were just saying i think something  that point your honor that conceptually speaking if there's concern that issuing a license and then holding a hearing after that if there's concern that the license is in effect and that there could be irreparable harm is that or that are  done during the pendency of that process that that is one available remedy for someone in the inner cities hearing process who believes that to be the case and it was not sought in this case i just wanted to raise that to address that real world type practical concern  other what i would specifically direct the court's attention to on this point pages one forty two and one forty three of the joint appendix these are the two pages of the commission's decision in which it is talking about how this  augmentation process works in agency practice where the commission not only states that under agencies adjudicatory practice from the time the license is issued all parties that proceeding are on notice that it is in fact it is effective but it is as you stated  judge williams it's provisional 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 the way that the contentions  the board is is is considering that have been brought to the attention of the board oh you have it the activity can begin correct the project when the license is issued the licensee can engage in the activities authorized by a license it is effective tha are for example built into the license so there are inspection activities that have to occur before before actual mining begins that the licensee has to under the license submit various data on the well fields it constructs after it receive 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 or conduct more studies is i think this is a kin to decisions of whether or not to supplement an asked after the action has been taken as this this court said in the blue ridge environmental defense lee case citing the supreme court's precedent in in march when when when federal actions are ongoing there is always the potential for new information 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 time to actually get to the day that can result in be either not considered all the aspects or something new as a risen again what the commission said in this decision is not only does the process is a process intended to work that way the commission said in its decision it is fully our expectation that in the in an appropriate 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 a deuce during the hearing process we believe that the record supports the issuance of the license to strata  so the commission the highest level decision makers of the agency have reviewed the record in this proceeding including the information that was only produced at the hearing and has made a decision that is of course the issuance of the license and so then to say that the commission rather than taking that action on its own accord must instead re man back to the n r c 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 in another case where there were significant defects or significant omissions from the environmental impact statement that were  license and even though it's an environmental issue the agency can do that without restarting the e i a s process proceed it has to consider what would be considered in such a process and act reasonably on that information all right i think that's right your honor and and maybe if i could just talk quickly about the  this project we believe the impacts associated with those boreholes will be small given that the number of license conditions that have been included so you either address or detect excursions from boreholes and at the hearing with the board certainly as 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 one hundred outside the well field perimeter that although low probability if the surgeons reach those boreholes then perhaps the the impact would be different than what the staff said and so what the board did was affirmatively amend the license and said in this hearing process we were provided with information which in the case of the license perhaps should be more environmentally mitigated than what the staff the ability to amend the license to address those conditions or in extreme cases remained back to staff suspend the license while during the pendency of every man if he decides that's the appropriate course of action but the board the commission decided in this case that based on the nuclear regulatory commission in this brief and believe as the expert technical agency the determinations of the n r c commission in this case fall squarely within the realm of chevron deference first from the perspective of the licensee you're on  believe that a critical component of this argument given the discussion about potential harm that we've already had is found in the commission's recently ordered two thousand and nine study of past argus or operations which had occurred at that time over a period of around forty years the conclusion of that the main focus of your honor's was were there and had there ever been adverse impacts to what we refer to as adjacent nonexempt aqua firs as a result of virus our operations the conclusion of the commission in two thousand and nine which still stands today is that there have not been any impacts from eyes or right to these to those adjacent ox flowing from the atomic energy act of one hundred fifty four the commission is required to implement generally political standards promulgated by u p a most importantly in this case e p a s resource conservation and recovery act regulations under forty c a four part to sixty four this is these are the ground more quality and restoration standards that n r c has determined in two thousand and seven to apply as a matter of law or will fields they consist of the following standards the first which has often been referred to as a baseline which is in correct baseline is not part of the criterion five b five standard under our seas regulations it is called commission approved background commission approved background is established in the construction of a will feel you have to restore to either commission or prove background or a matter what's called a maximum concentration limit whichever is higher or what has been called an alternate concentration limited these are taken directly from e p a standards and fifteen sixty nine cited in our brief under the next terror case as cited in our brief on page eleven the commission has determined that waleed as standard review plan or guidance document if you will does not have the force in effect  the entitled to substantial weight and the commission is determined under its tensity of our hard won regulations that n r c staff is empowered to interpret endorse the commission's regulations for this just this type of activity coming from th standard review point is how the license is developed in the conditions of multiple layers of regulation are the key component to an iris or well fill your honour's is what we refer to as will fuel balance you've heard the term cone of depression that is basically where you take what is called a production bleed out of the well field that brings war into the willful and prevents migration of it out so that nothing from the well field can go to an adjacent nonexempt dock and as i've said that term multiple times in this argument let me emphasize under e p a safe drinking water act if you cannot demonstrate that an offer for a receipt to recover uranium via this process cannot now nor ever in the future serve as a source of public drinking more there can be no mining there it is not allowed under u p a regulations so when the question was asked earlier about are there other requirements that the iris are operator must satisfy or that permits it must be obtained prior operation other than an r c license there are there are many you have to get environmental protection agency aka for exemptions which is subject to potentially state application to the agency for appro as well as what's called an underground injection control permit that deals with the wells in the well field that are called injection and production wells as well as your monitor wells etc last year as i knows i have significantly exceeded my time  if i may just say one more thing that as part of this will feel balance and or see in souls multiple license conditions including what are called mechanical integrity tests which are part of the response to a question earlier pre operational instruction that you have to perform these tests to demonstrate there will be no leaks from any of the wells in the well field you have to have you have to have monitor will networks that determine whether an excursion has occurred and it's important for the court to know that the term excursions frequently mischaracterize an excursion is not the migration of alleged contamination to an adjacent nonexempt monitor wells are inside that they are designed as an early warning system we're in or she requires that an artist or operator on a site specific basis determines what constituents albeit non hazardous things like calcium conductivity things of that nature that are that are starting to be the most mobile based on the science and once those are determined to be the indicator parameters if a higher concentration of those are detected at a monitor well and or she requires that the excursion be reported as if some new environmental impact is found it makes sense for the acting agency to respond to that response be subject to review f the arbitrary capricious but to respond to read and move on and i think that would be appropriate in a couple of different ways one if the agency prior to the day period hadn't already issued the information reasonably so again it goes out so that when the license was issue the agency didn't have this information right when the license was modified it did so in mi reversible yeah and i think that the difference is that the major federal action sunday to the vote was to issue the license in the first instance it was it to look at it out through the boards to think about whether to change it to modify it to add a new license process what the practical harm really is there and that issue is not before us and so we you know we've made your whole point is that the right in saying i think that this is different from what every other agency does is that there's something unusual or odd about this and presumably something that's creating a practical problem a practical problem i imagine is that when a license is issued there's kind of this pressure not to revoke the license yet there's is the momentum definitely and affectively what's happened