UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

Docket No. 40-9091 

CLI-16-13 

MEMORANDUM AND ORDER 

This decision addresses a petition for review relating to a materials license application 

for an in situ uranium recovery facility in Crook County, Wyoming filed by Strata Energy, Inc.1 

Natural Resources Defense Council and Powder River Basin Resource Council (together, “Joint 

Intervenors”) have petitioned for review of the Atomic Safety and Licensing Board’s Initial 

 

1 Natural Resources Defense Council’s & Powder River Basin Resource Council’s Petition for 

Review of Atomic Safety and Licensing Board’s January 23, 2015 Initial Decision Denying 

Environmental Contentions 1 Through 3, and Interlocutory Decisions Denying Environmental 

Contentions 4/5A and 6/7 (Feb. 17, 2015) (Petition); see also Exs. SEI014A to SEI014P, Ross 

ISR Project USNRC License Application, Crook County, Wyoming, Technical Report (Dec. 

2010) (Technical Report); Exs. SEI016A to SEI016E, Ross ISR Project USNRC License 

Application, Crook County, Wyoming, Environmental Report (Dec. 2010) (Environmental 

Report). 

In the Matter of 

STRATA ENERGY, INC. 

(Ross In Situ Uranium Recovery Project) 
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Decision on their admitted contentions.2 Joint Intervenors also challenge three earlier 

interlocutory Board decisions that found several contentions inadmissible.3 For the reasons 

stated below, we deny review. 

I. BACKGROUND 

Strata proposes to build and operate an in situ recovery and processing facility for 

uranium known as the Ross Project.4 As described in its application, the proposed operation 

will consist of two steps: recovering mineralized uranium from the ore body and processing the 

uranium-rich solution into yellowcake.5 Uranium recovery will be accomplished by injecting an 

oxidizing solution, or “lixiviant,” into the ore-bearing sandstone through a series of injection 

wells.6 The lixiviant oxidizes and mobilizes the uranium as it moves through the ore body, after 

which it is removed from the ore body by recovery wells.7 The “pregnant,” or mineral-rich, 

 

2 LBP-15-3, 81 NRC 65 (2015). 

3 LBP-13-10, 78 NRC 117 (2013); Memorandum and Order (Denying Motion for 

Reconsideration of LBP-13-10 Ruling Regarding Environmental Contention 4/5A or, 

Alternatively, to Admit Amended Contention) (Aug. 27, 2013) (unpublished) (Reconsideration 

Order); Memorandum and Order (Ruling on Motion to Migrate/Amend Existing Contentions and 

Admit New Contentions Regarding Final Supplement to Generic Environmental Impact 

Statement) (May 23, 2014) (unpublished) (FSEIS Order). 

4 Letter from Andrew Simpson, Strata Energy, Inc. to Keith McConnell, NRC (Jan. 4, 2011) 

(submitting application consisting of Environment Report (Exs. SEI016A to SEI016E) and 

Technical Report (Exs. SEI014A to SEI014P)) (ADAMS accession no. ML110120055); see also

Strata Energy, Inc., Ross In Situ Recovery Uranium Project, Crook County, WY; Notice of 

Materials License Application, Opportunity to Request a Hearing and to Petition for Leave to 

Intervene, and Commission Order Imposing Procedures for Document Access to Sensitive 

Unclassified Non-Safeguards Information for Contention Preparation, 76 Fed. Reg. 41,308 (Jul. 

13, 2011).

5 See Ex. SEI014A, Technical Report, § 1.7, at 1-6. 

6 Id. 

7 Id. 
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lixiviant is then transferred to a central processing plant to be processed into uranium 

yellowcake.8 

The in situ uranium recovery process is used throughout Wyoming, South Dakota, 

Nebraska, and New Mexico. Recognizing the widespread use of this technology in this region 

of the country, the Staff prepared a generic environmental impact statement (GEIS) to address 

aspects of the environmental analysis for these facilities that are similar across sites.9 

This licensing proceeding began in January 2011, when Strata filed an application for 

the Ross Project. As proposed by Strata, the Ross Project would occupy 1,721 acres 

(696 hectares) in the northern half of a larger area within the Nebraska–South Dakota–Wyoming 

Uranium Milling Region known as the Lance District.10 The project would consist of a central 

processing facility and 15–25 wellfield modules comprising a total of 1,400–2,200 recovery and 

injection wells.11 Strata is also “actively exploring” the entire Lance District for potential satellite 

uranium recovery facilities, but had not yet submitted a license application for any of these 

facilities at the time of the Board’s decision.12 A license application, whether for a separate 

license or for a license amendment to expand the Ross facility, is subject to a separate safety 

 

8 Id. at 1-6 to 1-7. 

9 See Exs. NRC007 to NRC008, “Generic Environmental Impact Statement for In-Situ Leach 

Uranium Milling Facilities, Final Report,” NUREG-1910, Vols. 1-2 (May 2009) (GEIS). 

10 See Exs. SEI009A to SEI009B, “Environmental Impact Statement for the Ross ISR Project in 

Crook County, Wyoming, Supplement to the Generic Environmental Impact Statement for InSitu Leach Uranium Milling Facilities Final Report,” NUREG-1910, Supp. 5 (Feb. 2014), § 2.1.1 

at 2-3 (FSEIS). The FSEIS describes the Lance District as an area “90-km2 [56 mi2]”—which is 

an incorrect conversion (90 square kilometers is 35 square miles). The exact size of the district 

is not relevant to this appeal. 

11 Id. at 2-9. 

12 Id. at 2-3 to 2-4. 
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and environmental review, and Joint Intervenors or other members of the public would have an 

opportunity to request a hearing with respect to any such application.13

At the outset of the proceeding Joint Intervenors sought and were granted a hearing on 

four contentions—all initially challenging Strata’s environmental report.14 The admitted 

contentions were: 

Contention 1: The application fails to adequately characterize 

baseline groundwater quality. 

Contention 2: The application fails to analyze the environmental 

impacts that will occur if Strata cannot restore groundwater to 

primary or secondary limits. 

Contention 3: The application fails to include adequate 

hydrological information to demonstrate Strata’s ability to prevent 

mining fluids from migrating into adjacent groundwater. 

Contention 4/5A: The application fails to adequately assess 

cumulative impacts of the proposed action and the planned Lance 

District expansion projects.15

 

13 In the time since the Board’s initial decision approving the license, Strata has requested a 

license amendment to expand into the Kendrick expansion area. See Strata Energy Inc., 

Kendrick Expansion Area Amendment to SUA-1601 (Mar. 20, 2015) (ML15096A141 (package)) 

(Kendrick Expansion Amendment). That license amendment request is under review, and a 

notice of opportunity to request a hearing was published in the Federal Register. See Strata 

Energy Inc., Ross In Situ Recovery Project; License amendment request and notice of 

opportunity to request a hearing, 81 Fed. Reg. 10,285 (Feb. 29, 2016) (Kendrick Hearing 

Notice). Joint Intervenors did not submit a petition to intervene in the Kendrick proceeding. 

Further, the Staff has started the environmental scoping process for the Kendrick request. See

Strata Energy, Inc. Kendrick Expansion Area In Situ Uranium Recovery Project; Scoping notice, 

81 Fed. Reg. 12,143 (Mar. 8, 2016) (Kendrick Scoping Notice). Joint Intervenors have 

submitted scoping comments on the environmental review for the Kendrick expansion area. 

See E-mail from Shannon Anderson, Powder River Basin Resource Council, to NRC (Apr. 22, 

2016) (ML16117A369) (transmitting Letter from Howard Crystal, representing Natural 

Resources Defense Council, to Cindy Bladey, NRC (Apr. 22, 2016) (Kendrick Project Scoping 

Comments)). 

14 LBP-12-3, 75 NRC 164, 210 (2012). On appeal we affirmed the Board’s standing 

determination and did not address contention admissibility. CLI-12-12, 75 NRC 603 (2012). 

15 See LBP-12-3, 75 NRC at 212. 
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Following the issuance of the Staff’s Draft Supplemental Environmental Impact 

Statement (DSEIS), Joint Intervenors filed a “motion to resubmit” their original contentions and 

to add a new contention (Contention 6).16 In LBP-13-10, the Board “migrated” Contentions 1-3 

as challenges to the Staff’s DSEIS because the DSEIS discussion of the subject matter of each 

contention was substantially the same as in Strata’s environmental report.17 With respect to 

Contention 4/5A, however, the Board found that the information in the DSEIS differed 

significantly from the information in the environmental report.18 The Board ruled that the 

migration tenet did not apply and Joint Intervenors should have submitted a new or amended 

contention, addressing all the admissibility factors.19 Therefore, it held that Contention 4/5A 

would continue as a challenge to Strata’s environmental report.20 The Board later denied a 

motion for reconsideration of its ruling with respect to Contention 4/5A, stating that Joint 

Intervenors had made no showing on either the good cause or admissibility factors.21 

 

16 Natural Resources Defense Council’s & Powder River Basin Resource Council’s Joint Motion 

to Resubmit Contentions & Admit One New Contention in Response to Staff’s Supplemental 

Draft Environmental Impact Statement (May 6, 2013) (Motion to Resubmit Contentions); see 

also Exs. NRC006A to NRC006B, “Environmental Impact Statement for the Ross ISR Project in 

Crook County, Wyoming Supplement to the Generic Environmental Impact Statement for In-Situ

Leach Uranium Milling Facilities,” NUREG-1910, Supp. 5 (Draft Report for Comment) (Mar. 

2013). 

17 LBP-13-10, 78 NRC at 151. Under the “migration tenet,” where the information in the Staff’s 

environmental review document is “sufficiently similar” to the material in the applicant’s 

environmental report, an existing contention based on the application can be “migrated,” or 

deemed to apply to the Staff’s review document as it did to the application. Id. at 132-33 

(citations omitted). As the Board explained, this case management practice obviates the need 

for intervenors to file an essentially identical contention challenging the Staff’s document 

followed by a motion to dismiss the existing contention as moot. Id. at 133 n.8. 

18 Id. at 141-44. 

19 Id. at 143. 

20 Id. 

21 Reconsideration Order at 4-6. 
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The Board also declined to admit Joint Intervenors’ proposed Contention 6, which 

argued that the Staff’s NEPA analysis should consider the development of the entire Lance 

District as the federal action.22 The Board found that Contention 6 was inadmissible because 

Joint Intervenors had not shown that plans to develop additional in situ recovery facilities in the 

region were sufficiently advanced or interconnected with the proposed action so as to trigger 

NEPA’s requirement that they be submitted in a single environmental impact statement with the 

proposed license.23 The Board further reasoned that the contention should have been filed with 

Joint Intervenors’ initial petition to intervene because the environmental report identified the 

potential for Strata to develop the entire Lance District.24

 

22 LBP-13-10, 78 NRC at 150. 

23 Id. at 144-50. As noted above, Strata has now filed an application to expand its operations 

into the Kendrick area, contiguous to the Ross site, and the Joint Intervenors have filed scoping 

comments in that proceeding. See supra note 13. Joint Intervenors also submitted a “Notice of 

Filing” asking that we consider their scoping comments as part of the record in this proceeding. 

See Natural Resources Defense Council and Powder River Basin Resource Council’s Notice of 

Filing (Apr. 27, 2016). The record for this proceeding, however, is closed and Joint Intervenors 

have not addressed the criteria for reopening the record in 10 C.F.R. § 2.326. Further, had 

Joint Intervenors filed a motion to reopen the record based on their scoping comments, it does 

not appear that they would have been able to meet the standards. Motions to reopen must, 

among other things, “demonstrate that a materially different result would be or would have been 

likely had the newly proffered evidence been considered initially.” 10 C.F.R. § 2.326(a)(3). In 

their scoping comments Joint Intervenors reiterate the claim (among other things) that the 

Staff’s analysis of the environmental impacts in this proceeding is defective because “the entire 

project should be considered in a single EIS.” Kendrick Project Scoping Comments at 2. But, 

as discussed in more detail below, the Staff’s EIS for the Ross project considered the 

cumulative impacts of the construction of possible satellite facilities, such as Kendrick, including 

impacts to geology and soils (see Ex. SEI009A, FSEIS, ch. 5 at 5-18 to 5-19), and surface and 

groundwater impacts (Ex. SEI009A, FSEIS ch. 5 at 5-20 to 5-29). Moreover, much of the Joint 

Intervenors’ scoping commentary either does not address cumulative impacts or simply raises 

concerns with respect to the Kendrick area that were fully litigated with respect to the Ross 

facility—such as containment of mining fluids, baseline water quality characterization, and 

restoration impacts (see Kendrick Project Scoping Comments, at 6-7). We decline to make 

Joint Intervenors’ scoping comments part of the record here. 

24 LBP-13-10, 78 NRC at 149-50. 
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The Staff completed its Final Supplemental Environmental Impact Statement (FSEIS) in 

February 2014 and issued the license in April 2014.25 Shortly after the Staff completed the 

FSEIS, Joint Intervenors again sought to migrate or amend their contentions and offered a 

proposed Contention 7, which reiterated the claims of Contention 6.26 In May 2014, the Board 

“migrated” Contentions 1 and 3, admitted an amended Contention 2, and again declined to 

migrate or amend Contention 4/5A.27 The Board also found Contention 7 inadmissible because 

it was not based on new information.28 Soon thereafter, the Board granted the Staff’s and 

Strata’s motions for summary disposition of Contention 4/5A.29

The Board held a hearing in the fall of 2014 on Contentions 1, 2, and 3.30 In its Initial 

Decision following the hearing, the Board modified one license condition to require Strata to 

 

25 See Exs. SEI009A to SEI009B, FSEIS; Ex. SEI015, Materials License SUA-1601 (Apr. 24, 

2014) (License). 

26 Natural Resources Defense Council’s & Powder River Basin Resource Council’s Joint Motion 

to Migrate or Amend Contentions, and to Admit New Contentions in Response to Staff’s Final 

Supplemental Draft Environmental Impact Statement (Mar. 31, 2014) (Motion to Migrate 

Contentions to FSEIS); see also Second Declaration of Christopher E. Paine in Support of the 

Natural Resources Defense Council & Powder River Basin Resource Council’s Joint Motion to 

Migrate or Amend Contentions, and to Admit New Contentions in Response to the Final 

Supplemental Environmental Impact Statement (Mar. 31, 2014) (Second Paine Declaration). 

Joint Intervenors referred to their proposed contention as “Contention 5” because they had only 

four contentions pending in the proceeding. See Motion to Migrate Contentions to FSEIS, at 

33 n.13. The Board, however, designated the contention “Contention 7” to maintain a 

consistent numbering system.

27 See FSEIS Order at 19. 

28 Id. at 14-16, 20. 

29 Memorandum and Order (Ruling on Summary Disposition Motion Regarding Environmental 

Contention 4/5A) (July 25, 2014) (unpublished) (Summary Disposition Order). 

30 Notice of Hearing (Notice of Evidentiary Hearing and Opportunity To Provide Oral and Written 

Limited Appearance Statements), 79 Fed. Reg. 44,471 (July 31, 2014). 
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properly abandon certain historic drill holes outside the wellfield perimeter.31 In all other 

respects, the Board ruled in favor of Strata and the NRC Staff on all three contentions.32 

Joint Intervenors have petitioned for review of the Board’s Initial Decision with respect to 

all three contentions.33 They also seek review of the Board’s interlocutory decisions refusing to 

migrate or amend Contention 4/5A and refusing to admit Contentions 6 and 7.34 As detailed 

below, we find that Joint Intervenors have not raised a substantial question of law or identified a 

clear factual error and we deny their petition. 

II. DISCUSSION 

A. Standard of Review 

We will grant a petition for review at our discretion, upon a showing that the petitioner 

has raised a substantial question as to whether: 

(i) a finding of material fact is clearly erroneous or in conflict with a 

finding as to the same fact in a different proceeding; 

(ii) a necessary legal conclusion is without governing precedent or 

is a departure from or contrary to established law; 

 

31 See LBP-15-3, 81 NRC at 143-44. Strata did not appeal the Board’s imposition of this license 

condition. In December 2015, Strata requested a license amendment to further modify the 

affected license condition, License Condition 10.12. See Letter from Michael Griffin, Strata 

Energy, to NRC Document Control Desk (Dec. 23, 2015) (regarding request to amend License 

Condition 10.12) (ML16020A370). See also Natural Resources Defense Council and Powder 

River Basin Resource Council’s Notice of Filing (Feb. 19, 2016), attachment B, Letter from 

Howard Crystal, Meyer Glitzenstein & Eubanks, LLP, to NRC Document Control Desk (Feb. 17, 

2016) (opposing license amendment request). The Staff published a notice of the license 

amendment request on the NRC public website, along with the opportunity to request a hearing 

on the amendment. See http://www.nrc.gov/about-nrc/regulatory/adjudicatory/hearing-licenseapplications.html#acc_docketing. Because this license amendment request has a separate 

opportunity to request a hearing and is not part of this proceeding, we do not need to further 

consider this issue here. 

32 LBP-15-3, 81 NRC at 153-54. 

33 See Petition at 1. 

34 See id.
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(iii) a substantial and important question of law, policy, or 

discretion has been raised; 

(iv) the conduct of the proceeding involved a prejudicial procedural 

error; or 

(v) any other consideration that we may deem to be in the public 

interest.35

We review questions of law de novo; and we defer to the Board’s findings with respect to 

the underlying facts unless the findings are “clearly erroneous.”36 The standard for showing 

“clear error” is a difficult one to meet: to do so, a petitioner must demonstrate that the Board’s 

determination is “not even plausible” in light of the record as a whole.37 For this reason, where a 

petition for review relies primarily on claims that the Board erred in weighing the evidence in a 

merits decision, we seldom grant review.38 We defer to the Board on issues of contention 

admissibility unless there is an error of law or abuse of discretion.39 Moreover, we generally 

leave to the Board’s judgment whether a proposed contention has a sufficient factual basis to be 

admitted for hearing.40

 

 

35 10 C.F.R. § 2.341(b)(4). 

36 Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-1, 

77 NRC 1, 18-19 (2013) (citing David Geisen, CLI-10-23, 72 NRC 210, 224-25 & n.61 (2010) 

and Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-03-8, 

58 NRC 11, 26 (2003)). 

37 See, e.g., Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-15-9, 

81 NRC 512, 519 (2015) (citations omitted). 

38 See, e.g., DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-10, 80 NRC 157, 

162-63 (2014); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 

Nuclear Power Station), CLI-12-1, 75 NRC 39, 45-46 (2012). 

39 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-09-16, 

70 NRC 33, 35 (2009); Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating 

Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 914 (2009). 

40 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC 340, 354-55 

(2015); Crow Butte Resources Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 

(2014). 
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B. Contentions Rejected Prior to Hearing 

Joint Intervenors seek review of the interlocutory Board decisions relating to three 

contentions dispositioned prior to hearing: Contention 4/5A, which the Board declined to update 

as a challenge to the DSEIS and FSEIS; and Contentions 6 and 7, which were never admitted 

in the proceeding.41 We find that Joint Intervenors have not raised a substantial question with 

respect to these decisions. 

1. Proposed Contentions 6 and 7 

a. Joint Intervenors’ Proposed Contentions 

Joint Intervenors first challenge the Board’s decisions rejecting proposed Environmental 

Contention 6 (challenging the DSEIS) and Environmental Contention 7 (the same contention, 

challenging the FSEIS).42 As discussed above, Joint Intervenors argued in these contentions 

that the Staff’s NEPA analyses should have considered Strata’s development plans for the 

entire Lance District in a single EIS.43 Joint Intervenors claimed that Strata had “segmented” 

the Lance District development to mask the actual environmental consequences of its long-term 

plans and to expedite the licensing process.44 To support their contentions, Joint Intervenors 

cited Council on Environmental Quality (CEQ) regulations providing that proposals that “are 

related to each other closely enough to be, in effect, a single course of action shall be evaluated 

 

41 See Petition at 4, 7-10 (challenging LBP-13-10, Reconsideration Order, and FSEIS Order). A 

petitioner who has been granted intervention and has other contentions pending in the 

proceeding may not seek immediate review of the Board’s contention admissibility rulings. See, 

e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-13-3, 77 NRC 51, 54 

(2013). 

42 Petition at 7-10. 

43 See Motion to Resubmit Contentions at 19-23; Motion to Migrate Contentions to FSEIS at 33-

39. 

44 Motion to Resubmit Contentions, at 19-23; Declaration of Christopher E. Paine on Behalf of 

the Natural Resources Defense Council & Powder River Basin Resource Council in Support of 

Contentions 4/5A and 6, (May 6, 2013) (Paine Declaration). 
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in a single impact statement” and that proposals should be considered a single course of action 

where they have “similarities that provide a basis for evaluating their environmental 

consequences together.”45 Joint Intervenors also argued that the Supreme Court has ruled in 

Kleppe v. Sierra Club that “when several proposals for ... actions that will have a cumulative or 

synergistic environmental impact upon a region are pending concurrently before an agency, 

their environmental consequences must be considered together.”46 In support of their 

contentions, Joint Intervenors cited various public statements and press releases from Strata’s 

corporate parent indicating that Strata intends to file consecutive applications to develop the 

entire Lance District.47

b. The Board’s Rulings on Contentions 6 and 7 

In LBP-13-10, when the Board considered this claim with respect to Contention 6, it 

concluded that Strata’s expansion plans were not sufficiently well-developed to constitute a 

“proposal” that the NRC must consider in its review of the Ross Project.48 The Board found that 

the lack of additional “proposals”—actual applications for other facilities—undermined Joint 

Intervenors’ reliance on both Kleppe and the CEQ regulations they cited.49 It observed that the 

Supreme Court held in Kleppe that NEPA “does not require an agency to consider the possible 

environmental impacts of less imminent actions when preparing the [environmental] impact 

 

45 Motion to Resubmit Contentions at 19 (quoting 40 C.F.R. §§ 1502.4(a) and 1508.25(a)). 

46 Id. (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976)). 

47 See id. at 20-21; Paine Declaration at 14-31 (unnumbered). The press releases referred to in 

the Paine Declaration are dated between October 2010 and March 2013. See id. at 14 

(unnumbered). 

48 LBP-13-10, 78 NRC at 144-50. 

49 Id. at 145-46. 
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statement on proposed actions.”50 In addition, the Board cited Commission precedent that 

holds “to bring NEPA into play, a possible future action must at least constitute a ‘proposal’ 

pending before the agency (i.e., ripeness), and must be in some way interrelated with the action 

that the agency is actively considering (i.e., nexus).”51 

The Board next analyzed Joint Intervenors’ claim against the three types of actions 

described in the relevant CEQ regulation: connected, cumulative, and similar.52 In the 

“connected action” portion of its analysis, the Board applied the “independent utility” test devised 

by the U.S. Court of Appeals for the Ninth Circuit in Thomas v. Peterson.

53 This test holds that 

related actions should be discussed together when each would have no independent utility 

without the other.54 The Board found that this was not the case here—the Ross Project has 

“independent utility” without the possible expansion sites.55 While the Board noted that it would 

be economically and operationally efficient if the processing facility built for the Ross Project 

were used for satellite facilities, it found that this efficiency fell short of showing that the 

proposed facility would have no independent utility if the satellite facilities were never built.56 

 

50 Id. at 145 (quoting Kleppe, 427 U.S. at 410 & n.20).

51 LBP-13-10, 78 NRC at 146 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 

and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-14, 55 NRC 278, 295 (2002)). 

52 Id. at 147 (citing 40 C.F.R. § 1508.25(a)). 

53 Id. (discussing Thomas v. Peterson, 753 F.2d 754, 758-59 (9th Cir. 1985)). 

54 Thomas, 753 F.2d at 758-59. In Thomas v. Peterson, the Ninth Circuit held that in assessing 

the environmental impacts of a timber road, the U.S. Forest Service must consider the impacts 

of the timber sales that the road was designed to facilitate. But in that case, the timber sales 

could not take place without the road and the road had no independent utility apart from the 

timber sales. Id. Other federal courts continue to apply this test. See, e.g., Webster v. United 

States Dep’t of Agriculture, 685 F.3d 411, 426 (4th Cir. 2012). 

55 LBP-13-10, 78 NRC at 148.

56 Id. The Board also noted that both the DSEIS and the Environmental Report acknowledged 

that the processing facility for the Ross Project will be designed to have a processing capacity 

four times greater than would be needed for the expected production of the Ross Project alone. 
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The Board concluded that Joint Intervenors had not shown a genuine dispute with respect to the 

“connected action” aspect of the CEQ’s regulation.57 The Board further declined to consider 

whether the expansion sites might fit the CEQ regulations’ categories of “cumulative” and 

“similar” projects, because Joint Intervenors nevertheless had failed to show that the information 

on which their claims were based had not been “previously available.”58 Therefore the Board 

determined that the proposed contention could not satisfy the good cause factors in 10 C.F.R. 

§ 2.309(c).59 

In Contention 7, Joint Intervenors reasserted the same claims with respect to the FSEIS 

as Contention 6 had made with respect to the DSEIS.60 In support of their motion, Joint 

Intervenors argued that Strata’s parent company had continued to publicly disclose Strata’s 

plans to develop satellite facilities within the Lance District, including in a May 2013 statement 

that exploratory drilling had commenced in the areas surrounding the Ross Project area.61 

The Board found that Contention 7 failed to meet the good cause criteria because it was 

not based on new information.62 The Board noted that the public documents Joint Intervenors 

 

Id. (citing Ex. NRC006A, DSEIS, § 2.1.1.1, at 2-13 and Ex. SEI016A, Environmental Report, 

§ 1.1, at 1-4). 

57 Id. at 149 (citing 10 C.F.R. § 2.309(f)(1)(vi)). 

58 Id. at 149-50. 

59 Id. Petitioners who file a new or amended contention filed after the deadline for filing a 

petition for intervention must demonstrate good cause by showing that their contention is based 

on information that was not previously available, materially different from the information that 

was previously available, and filed in a timely fashion after the information becomes available. 

10 C.F.R. § 2.309(c)(i), (ii), (iii). 

60 Motion to Migrate Contentions to FSEIS, at 33-40. 

61 Id. at 35-36. 

62 FSEIS Order at 14-16. 
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cited to support the contention were dated from March 2013 through March 2014.63 And only 

the last of these, a March 2014 presentation from Strata’s parent company, was dated within 

thirty days of Joint Intervenors’ motion.64 The Board concluded that the presentation was not 

materially different from previously available information and that Joint Intervenors had not 

satisfied the good cause factors under 10 C.F.R. § 2.309(c).65 

c. Review Denied With Respect to Proposed Contentions 6 and 7

On appeal, Joint Intervenors argue that the Board’s rulings erroneously conflated the 

merits of the contention with its admissibility and that the Board erred in not finding good cause 

for filing Contentions 6 and 7 after the deadline for filing the initial intervention petition.66 Joint 

Intervenors argue that the Board required them to prove that the Lance District’s development is 

a single project, when the contention admissibility factors only require “a concise statement of 

the alleged facts.”67 

With respect to whether Contention 7 was based on new information, we observe that 

Strata disclosed the potential for future satellite facilities in its application.68 Moreover, it is 

apparent that Joint Intervenors were aware of these facilities from the fact that they raised the 

 

63 Id. at 15-16.

64 Id. at 16. See Second Paine Declaration at 16-18 (discussing 

http://www.pel.net.au/images/peninsul---aingoequei.pdf).

65 FSEIS Order at 16.

66 Petition at 8. 

67 Id.; see also 10 C.F.R. § 2.309(f)(1)(v). 

68 Ex. SEI016A, Environment Report, at 1-20 to 1-21. “The proposed Ross ISR Project is 

intended to be just the first of several ISR project sites to be developed in the area. If these 

other sites are developed, it is likely that they will serve as ancillary or satellite facilities to the 

proposed Ross project site, with all satellite facilities using the same [central processing plant].” 

Id. at 2-8.
- 15 - 

question of cumulative impacts from these facilities in their initial Contention 4/5A.69 The 

Board’s conclusion that Joint Intervenors already knew enough to formulate their contentions, 

and should have done so at the time that the application was filed, was reasonable. 

Nor do we discern any error of law in the Board’s ruling that the expansion plans would 

have to be in a sufficiently advanced stage to be considered a “proposal” for action that “bring[s] 

NEPA into play.”70 The Board’s ruling with respect to the scope of the federal action rested on 

Supreme Court authority in Kleppe as well as our own agency case law, as discussed above.71 

While the Ross Project FSEIS appropriately discussed the cumulative impacts of potential 

satellite facilities, a single environmental impact statement on the development of the entire 

Lance District would be speculative at this time.72 

Finally, contrary to Joint Intervenors’ arguments on appeal, we do not find that the Board 

strayed into “weighing the merits” in considering the admissibility of these proposed 

contentions.73 Joint Intervenors had the burden to demonstrate the admissibility of their 

 

69 See Petition to Intervene and Request for Hearing by the Natural Resources Defense Council 

& Powder River Basin Resource Council, at 28-29 (Oct. 27, 2011). 

70 Id. at 146 (quoting McGuire & Catawba, CLI-02-14 at 295); see also Webster, 685 F.3d at 

426-27 (agency of the U.S. Department of Agriculture was not required to consider the possible 

development of a water treatment facility in deciding whether to approve construction of a dam, 

when no such facility had been proposed). 

71 Kleppe, 427 U.S. at 410; McGuire & Catawba, CLI-02-14, 55 NRC at 295.

72 See Ex. SEI009A, FSEIS, § 5.2.1.1, at 5-5 to 5-8 (discussion of potential satellite facilities and 

other past or future in situ recovery facilities within 50 miles (80 kilometers) of the proposed 

project). And the filing of a license amendment request to expand the current Strata Facility, 

which occurred after the issuance of the Board’s decision, does not alter the fact that the 

Board’s ruling was appropriate at the time. See Kendrick Expansion Amendment. The FSEIS 

considered the cumulative impacts of future satellite facilities, such as the proposed Kendrick 

expansion. See generally Ex. SEI009A, FSEIS § 5.2. Joint Intervenors have not provided any 

basis for us to question this analysis as it applies to this proceeding. 

73 See Petition at 8.
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contention, including establishing a factual predicate for its claims. 74 Here, the Board had to 

determine whether there was a sufficient factual basis for the contention in the face of the 

contrary evidence that no concrete proposals to develop additional sites were pending before 

the agency at that time. Its discussion relates to the “genuine dispute” element of the contention 

admissibility factors—not the merits of the underlying claim. 75 We usually defer to a Board’s 

judgment as to whether a contention’s proponent has provided adequate support to raise a 

genuine dispute of material fact.76 We see no reason to change this practice here; we find that 

Joint Intervenors have not raised a substantial question with respect to Contentions 6 and 7.77

2. Contention 4/5A 

Joint Intervenors seek review of the Board’s decisions declining to admit their 

“resubmitted” Contention 4/5A as a challenge to the DSEIS, and later, as a challenge to the 

FSEIS.78 As admitted, Contention 4/5A argued that the application failed to consider cumulative 

impacts on groundwater quantity and quality from satellite facilities that Strata eventually intends 

 

74 See Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), 

CLI-11-9, 74 NRC 233, 243-44 (2011) (in rejecting a contention that failed to identify 

inadequacies in the applicant’s Mitigative Strategies Report, the board did not impermissibly 

weigh the merits to find that the Mitigative Strategies Report was sufficient). 

75 See 10 C.F.R § 2.309(f)(vi); see also AmerGen Energy Company, LLC (Oyster Creek Nuclear 

Generating Station), CLI-09-7, 69 NRC 235, 276-77 (2009) (the board did not impermissibly 

weigh the merits in finding that petitioners had provided no factual support for their proposed 

safety contention). 

76 Indian Point, CLI-15-6, 81 NRC at 354-55. 

77 We note that the Staff intends to prepare a supplemental EIS, rather than an environmental 

assessment, for the Kendrick expansion, which will consider potential impacts of construction, 

operation, and restoration of the site. See Kendrick Scoping Notice, 81 Fed. Reg. at 12.144. 

Joint Intervenors—along with any other interested groups or members of the public—may 

participate in the separate proceeding regarding the license amendment request for the 

Kendrick expansion. See Kendrick Expansion Amendment and Kendrick Hearing Notice, 

81 Fed. Reg. at 10,285. 

78 Petition at 4, 9-10. 
- 17 - 

to develop surrounding the Ross site.79 The Board’s refusal to migrate or amend Contention 

4/5A led to its eventual summary disposition because a challenge to the environmental report 

was no longer material once the Staff had completed its FSEIS.80 

Joint Intervenors’ challenge with respect to Contention 4/5A, however, only addresses 

the Board’s ruling in LBP-13-10 with respect to good cause.81 They argue that because the 

Board itself found that the DSEIS information “differed significantly” from the material in the 

environmental report, this should be enough to show “good cause” for filing under 10 C.F.R. 

§ 2.309(c), because the information was not “previously available.”82 Joint Intervenors argue 

that even if their “Motion to Resubmit” their contentions lacked a “formalistic invocation of the 

2.309(c) factors,” the Board erred in denying their motion for reconsideration of LBP-13-10, 

which included such a recitation.83 But good cause was only one basis on which the Board 

refused to admit Joint Intervenors’ “resubmitted” contentions on the DSEIS—the Board also 

noted that, in addition to demonstrating good cause, Joint Intervenors needed to satisfy “the 

section 2.309(f)(1) admissibility factors ... to provide the foundation for a new or amended 

contention.”84 

Even if Joint Intervenors were correct with respect to their argument on appeal related to 

good cause, they do not argue that the Board erred with respect to the admissibility factors. 

Because the DSEIS provided new information on cumulative impacts to address the 

 

79 LBP-12-3, 75 NRC at 212. 

80 See Summary Disposition Order at 14-15. 

81 Petition at 9; see 10 C.F.R. § 2.309(c). 

82 Petition at 9. 

83 Id. 

84 See LBP-13-10, 78 NRC at 143. 
- 18 - 

deficiencies identified in Contention 4/5A, Joint Intervenors needed to challenge that analysis 

specifically to show that a genuine dispute remained concerning cumulative impacts. And as 

“the Board is the appropriate arbiter of such fact-specific questions of contention admissibility, 

we will not second-guess the Board’s evaluation of factual support for [a] contention, absent an 

error of law or abuse of discretion,” which Joint Intervenors have not shown here.85 We 

therefore decline to take review of the Board’s decisions in LBP-13-10, the Reconsideration 

Order, and the FSEIS Order with respect to Contention 4/5A. 

C. Contentions Decided on the Merits 

1. Contention 1 

a. Background of Contention 1 

In Contention 1, Joint Intervenors claimed that Strata’s groundwater quality monitoring 

program was inadequate to describe the baseline—or existing—water quality of the various 

aquifers underlying the Ross site: 

The FSEIS fails to comply with 10 C.F.R. §§ 51.90-94, 10 C.F.R. 

Part 40, Appendix A, and NEPA because it lacks an adequate 

description of the present baseline (i.e., original or pre-mining) 

groundwater quality and fails to demonstrate that groundwater 

samples were collected in a scientifically defensible manner, using 

proper sampling methodologies. The FSEIS’s departure from 

NRC guidance serves as additional evidence of these regulatory 

violations.86

Joint Intervenors argued that if the site is not adequately characterized, the potential impacts of 

the proposed facility cannot adequately be measured.87 We agree that the baseline 

 

85 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 326-27 

(2012). 

86 FSEIS Order, app. A (citing Ex. SEI007, Standard Review Plan for In Situ Leach Uranium 

Extraction License Applications, NUREG-1569, §§ 2.7.1, 2.7.3, 2.7.4 (2003) (NUREG-1569)). 

87 See, e.g., Ex. JTI001-R, Pre-filed Direct Testimony of Dr. Richard Abitz Supporting Joint 

Intervenors’ Contentions 1 and 3, at 7 (Abitz Direct Testimony).
- 19 - 

environmental conditions at a site like Strata must be considered as part of the Staff’s NEPA 

analysis.88 As we discuss in more detail below, the Board found Strata’s and the NRC Staff’s 

description of the environmental baseline to be sufficient to support the NEPA analysis in the 

FSEIS.89 Joint Intervenors’ appeal does not raise an issue that causes us to disturb the Board’s 

determination here. 

An applicant for an in situ uranium recovery license must describe the hydrology of the 

proposed site to predict the potential effect such a facility would have on adjacent groundwater 

and surface waters as required by NEPA.90 To do this, the applicant must establish a 

pre-licensing groundwater monitoring program to provide baseline data sufficient to describe the 

overall quality of the groundwater.91 This requirement is also codified in Criterion 7 of Part 40, 

Appendix A, which requires that “at least one full year prior to any major site construction, a 

preoperational monitoring program must be conducted to provide complete baseline data.”92 

Accordingly, Strata conducted a groundwater monitoring program over a two-year 

period, the results of which were incorporated into the FSEIS.93 Strata’s pre-licensing 

groundwater monitoring activities consisted of six monitoring well clusters, with at least four 

 

88 The Board explained that there was some “uncertainty” concerning the terms “baseline” and 

“background” and whether these terms are interchangeable. See LBP-15-3, 81 NRC at 75-

76 n.2. The Board used “baseline” to refer to the prelicensing site characterization and 

“background” for the values that will be established post licensing. Id. We use the Board’s 

terminology.

89 See LBP-15-3, 81 NRC at 111. 

90 See 10 C.F.R. pt. 40, app. A, Criterion 7; see also, Ex. SEI007, NUREG-1569, § 2.7.1. 

91 See Ex. NRC001, NRC Staff’s Initial Testimony, at 3-4 (Staff Testimony); see also

Ex. SEI007, NUREG-1569, § 2.7.1, at 2-23 to 2-26. 

92 10 C.F.R. pt. 40, app. A; see also LBP-15-3, 81 NRC at 89-90. 

93 See generally Ex. SEI009A, FSEIS, § 3.5.3.3; Ex. SEI009B, FSEIS, app. C (complete 

sampling data). 
- 20 - 

wells in each cluster to collect samples from the ore zone, the aquifers immediately overlying 

and underlying the ore zone, and the surficial aquifer.94 In addition to the samples collected 

through its own monitoring, Strata used samples from existing water-supply wells located within 

or adjacent to the Ross site and data from a former research and development operation during 

the 1970s to characterize the baseline groundwater quality. Staff incorporated all this 

information into the FSEIS.95 

Joint Intervenors’ expert Dr. Richard Abitz testified that the distribution of the wells used 

for groundwater sampling did not collect data “representative of overall site conditions,” which 

led to the flawed characterization of the site.96 Moreover, Dr. Abitz said that Strata’s wells 

concentrated on the mineralized areas within the aquifer instead of sampling water through the 

entire thickness of the aquifer, resulting in data that indicated more contamination in the 

groundwater than is actually there.97 Dr. Abitz argued that higher baseline contaminate levels 

would “allow[] for a substantially more degraded aquifer after restoration” that would preclude 

the use of the mined aquifer in the future for domestic, livestock, or agricultural needs.98 To 

address this concern, Joint Intervenors urged that the baseline water quality be established 

through more rigorous protocols—such as those set forth in NRC regulations for post-licensing, 

preoperational background monitoring or such as the Environmental Protection Agency’s 

 

94 Ex. SEI009A, FSEIS, § 3.5.3.3, at 3-37 to 3-38. The Board explained that the monitored 

aquifers, or horizons, were the ore zone, the aquifer underlying the ore zone (referred to as the 

deep monitoring unit), the aquifer overlaying the ore zone (referred to as the shallow monitoring 

unit) and the surficial aquifer. See LBP-15-3, 81 NRC at 89. 

95 Ex. SEI009A, FSEIS, § 3.5.3.3, at 3-38. The research and development operation, known as 

Nubeth Joint Venture, operated from August 1978 through April 1979 and was decommissioned 

in 1983. Id. § 2.1.1, at 2-11. 

96 See Ex. JTI001-R, Abitz Direct Testimony, at 10, 16-17. 

97 Id. at 10, 21-22. 

98 Id. at 11, 24. 
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“Statistical Analysis of Groundwater Monitoring Data at [Resource Conservation and Recovery 

Act (RCRA)] Facilities.”99

b. The Board’s Ruling on Contention 1 

The Board rejected as a matter of law Joint Intervenors’ argument that the FSEIS site 

characterization must conform to the more rigorous criteria that specifically apply to postlicensing, preoperational monitoring.100 In reviewing this contention, the Board explained the 

difference between pre-licensing site characterization for NEPA purposes and the post-licensing 

activities used to set restoration values and to detect excursions during operations.101 After 

receiving a license, a licensee collects groundwater samples from the production and injection 

wells to establish post-licensing, preoperational background levels for various chemical 

constituents, which are then used to set restoration goals.102 At that time, the licensee also 

installs monitoring wells at the perimeter of each wellfield, which are used to detect leaks during 

operations.103 The Board cited the Standard Review Plan for In Situ Leach Uranium Recovery 

Facilities and Regulatory Guide 4.14 to distinguish between the groundwater monitoring 

necessary for pre-license site characterization (baseline), and the post-licensing, pre-operation 

monitoring that will be used for monitoring and site restoration.104 Further, the Board relied on 

 

99 See id. at 7-10, 35-40; Tr. at 428 (Abitz); see also Ex. JTI006, EPA, Statistical Analysis of 

Groundwater Monitoring Data at RCRA Facilities Unified Guidance (Mar. 2009). 

100 LBP-15-3, 81 NRC at 91-92. That is, the criterion of 10 C.F.R. pt. 40, app. A, Criterion 5 and 

Criterion 7A do not specifically apply to site characterization under NEPA. 

101 Id. at 89-90; see also Ex. SEI009A, FSEIS, § 2.1.1.1, at 2-25. 

102 LBP-15-3, 81 NRC at 76, 90; see also 10 C.F.R. pt. 40, app. A, Criterion 5B(5). 

103 LBP-15-3, 81 NRC at 76, 90-91; see also 10 C.F.R. pt. 40, app. A, Criterion 7A. 

104 LBP-15-3, 81 NRC at 90-91 (citing Ex. SEI007, NUREG-1569, § 2.7; Ex. SEI008, Regulatory 

Guide 4.14 (Rev. 1), Radiological Effluent and Environmental Monitoring at Uranium Mills (Apr. 

25, 1980)). Staff Guidance documents such as standard review plans are entitled to “‘special 

weight.’” Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 
- 22 - 

our decision in Hydro Resources, where we stated that conducting the more detailed postlicensing analysis “to establish definitively the groundwater quality baselines and upper control 

limits” is “consistent with industry practice and NRC methodology”; and, in fact, this analysis 

cannot be completed until after licensing, when an in situ leach well field has been installed.105 

The Board held that the fact that Strata’s groundwater monitoring (on which the FSEIS relied) 

did not conform to post-licensing monitoring or other, more rigorous, procedures did not 

undermine the sufficiency of the site characterization per se.

106 

This conclusion, however, did not end the Board’s inquiry into Contention 1—the Staff 

was still required to show that the FSEIS sufficiently described the site. The Board next 

considered Joint Intervenors’ specific arguments that the FSEIS’s description of the 

groundwater at the Ross Project site was inaccurate or incomplete for the purposes of NEPA.107 

After a detailed discussion of each purported defect, the Board ruled in favor of the Staff and 

Strata on each point.108

c. Petition for Review of Contention 1 

(1) NO SUBSTANTIAL QUESTION OF LEGAL ERROR IN CONTENTION 1

Joint Intervenors argue that the Board erroneously held that it is permissible to defer 

“meaningful” or “accurate” baseline characterization until after the license is issued.109 Joint 

 

375 n.26 (2005) (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-900, 28 NRC 275, 290 (1988)). 

105 LBP-15-3, 81 NRC at 91 (citing Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New 

Mexico 87313), CLI-06-1, 63 NRC 1, 6 (2006)). 

106 Id. at 91-92. 

107 Id. at 93-110. 

108 Id. We do not provide a discussion of the technical arguments resolved in Staff’s favor that 

are not the subject of Joint Intervenors’ petition. 

109 Petition at 10-11. 
- 23 - 

Intervenors have not raised a “substantial question” of law with respect to the applicable 

standards for site characterization—their claim mischaracterizes the Board’s ruling. The Board 

did not rule that “meaningful” baseline characterization may be deferred until the post-licensing 

period. Rather, it held that the groundwater monitoring used to describe the environmental 

conditions at the site for NEPA purposes need not conform to the groundwater monitoring 

requirements applicable to an operating facility.110 The two standards serve different purposes. 

Joint Intervenors argue generally that NEPA requires the collection of accurate 

information prior to making a decision.111 While we agree that the information in the FSEIS 

must be accurate, in this instance Joint Intervenors equate accuracy with the volume of data 

collected. Joint Intervenors provide no justification for challenging the validity of the Staff’s 

NEPA analysis beyond a call for the collection of additional data.112 But our regulations do not 

require licensees or the Staff to conduct the additional sampling that Joint Intervenors request 

before the issuance of a license. Joint Intervenors have not shown that additional groundwater 

sampling is necessary to characterize the existing site conditions or the expected environmental 

impacts of the proposed operation. While it is always possible to gather more data, at some 

point the Staff must “move forward with decisionmaking.”113 And, as explained below, Joint 

Intervenors do not raise a substantial question relating to the Board’s fact finding with respect to 

Strata’s site characterization. Given that the Board based its legal ruling on precedent and 

 

110 LBP-15-3, 81 NRC at 91-92. 

111 Petition at 11. 

112 Id. at 12-14. 

113 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-10-11, 71 NRC 287, 315 (2010) (quoting Town of Winthrop v. Federal 

Aviation Administration, 535 F.3d 1, 11 (1st Cir. 2008)). 
- 24 - 

applicable Staff guidance, we see no substantial question of law relating to NEPA’s site 

characterization requirements. 

Joint Intervenors additionally argue that the Board improperly shifted the burden of proof 

to Joint Intervenors.114 We disagree. The Board acknowledged that the Staff has the burden to 

prove the sufficiency of the FSEIS.115 When considering challenges to how the Board weighed 

the evidence, we “defer to the Board’s expertise as the fact finder and decline to substitute the 

judgment [of an Intervenor’s expert] for that of the Board.”116

(2) NO SUBSTANTIAL QUESTION OF FACTUAL ERROR IN CONTENTION 1 

We also decline to take review of Joint Intervenors’ factual challenges with respect to 

Contention 1. Although Joint Intervenors raised many challenges to Strata’s site 

characterization before the Board, their petition (and thus our decision today) focuses on only 

two.117

Joint Intervenors first claim that the monitoring wells were not “located and distributed in 

a manner designed to collect data representative of overall site conditions.”118 Joint Intervenors 

aver that “no one disputed” that Strata’s approach “was neither designed to, nor did, collect 

representative baseline water quality data.”119 

We see no “clear error” in the Board’s fact finding relating to this complex issue. 

Contrary to Joint Intervenors’ assertion, the Staff and Strata vigorously disputed Joint 

 

114 Petition at 11-12. 

115 LBP-15-3, 81 NRC at 84-85.

116 See, e.g., Oyster Creek, CLI-09-7, 69 NRC at 266. 

117 Petition for Review at 11-14. 

118 Id. at 12 (citing Ex. JTI001-R, Abitz Direct Testimony, at 16). 

119 Id. at 13. 
- 25 - 

Intervenors’ claim that the site characterization was insufficient.120 Moreover, the Board cited 

ample record support for its conclusions. It observed that Strata’s collection methods had 

generated “362 groundwater samples (with 16,000 chemical and radiological parameters).”121 

The Board also noted that “the number and location of wells was based on factors such as 

[Wyoming Department of Environmental Quality] guidelines, ... having consistent/continuous 

water-bearing intervals above and below mineralization, satisfactory confining layer thickness, 

proximity to existing drilling data, sufficient spatial distribution for development of potentiometric 

data, and landowner considerations.”122 The Board also discussed Joint Intervenors’ evidence, 

specifically the testimony of their expert Dr. Abitz.123 In considering the record here, the Board 

found that there was no evidence of “actual bias (or an attempt to induce a biased result)” in the 

number and location of wells.124 Given that the Board considered and weighed the evidence 

from all parties, and based on our review of Joint Intervenors’ petition, we will not second guess 

the Board’s conclusion that the number of samples and location of wells were sufficient to 

support the Staff’s FSEIS. 

 

120 See Ex. NRC001, Staff Testimony at 12-14 (“Because the location and placement of Strata’s 

wells and the sampling and analytical methods used were consistent with those described in 

Section 2.7 [of the Standard Review Plan], the Staff found that the quality of the baseline 

groundwater data presenting in the FSEIS was adequate for use in assessing the Ross 

Project’s potential environmental impacts.”); Ex. SEI005, Initial Written Testimony of Ben 

Schiffer, at 9 (“In my experience and opinion, 16,000 results from more than 362 groundwater 

samples provides a representative, quantitative description of the baseline groundwater quality 

within and adjacent to the project boundary. As importantly in my opinion, these data more than 

meet the intent of NEPA ....”).

121 LBP-15-3, 81 NRC at 93-94. The Board cited Pilgrim, wherein we held that NEPA does not 

require that unlimited resources be devoted to information-gathering so long as the result is 

reasonable. Pilgrim, CLI-10-11, 71 NRC at 315. 

122 LBP-15-3, 81 NRC at 94 n.19 (citing Ex. SEI016A, Environmental Report, at 3-101 and 

Ex. SEI045, Rebuttal Testimony of Ben Schiffer, at 15). 

123 Id. at 93-95. 

124 Id. at 94. 
- 26 - 

Joint Intervenors next dispute the Board’s finding that Strata’s well screening intervals 

were “appropriate” for site characterization.125 That is, they claim that Strata’s sampling wells 

were designed to draw water only through the parts of the ore zone aquifer that contain “stacked 

ore horizons” (uranium deposits), thereby biasing the results toward higher concentrations of 

uranium and radium-226.126 Joint Intervenors generally assert that the wells should be 

screened through the entire thickness of the aquifer.127 

The Board found that Strata’s well screening intervals did not inappropriately bias the 

results of its site characterization activities.128 The Board acknowledged that the wells did not 

draw water from the entire thickness of the ore zone aquifer.129 Nevertheless, it found the 

results were not biased because some of the wells were located in the nonmineralized parts of 

the aquifer, and, for those wells located in the mineralized zones, the screened intervals were 

“long enough to collect groundwater from nonmineralized layers between ore horizons.”130 It 

concluded that the well screening protocol used by Strata was sufficient for site 

characterization.131 

 

125 Petition for Review at 13-14. 

126 Id.; see also JTI001-R, Abitz Direct Testimony, at 21-22. The Board explained that “‘well 

screening’ denotes the use, at the intake portion of a well, of a porous filter that allows 

groundwater to be sampled from a targeted aquifer or a specific horizon within an aquifer.” See

LBP-15-3, 81 NRC at 97 n.23. 

127 Petition for Review at 13-14. 

128 LBP-15-3, 81 NRC at 98-99.

129 Id. at 98.

130 Id. at 99. 

131 Id. at 98-100. Joint Intervenors also claimed before the Board that the Standard Review Plan 

requires that wells be “fully screened” through the “entire thickness of the aquifer,” but, as the 

Board pointed out, the Standard Review Plan section in question only applies to the perimeter 

monitoring wells that are to be installed to detect excursions, not for site characterization. See

Id. at 98-99 (citing Ex. SEI007, NUREG-1569, § 5.7.8.3, at 5-42 to 5-43). 
- 27 - 

Joint Intervenors do not show clear error in the Board’s finding of fact with respect to well 

screening intervals. The Board provided a plausible explanation why the well screening 

protocols would not unduly bias the groundwater sampling results, and well screening was just 

one sub-issue of many the Board considered with respect to this contention. It is apparent that 

the Board considered evidence and arguments from both sides of each of Joint Intervenors’ 

specific technical complaints, including the two they discuss in their petition for review. 

We decline to review a board’s “plausible decision that rests on carefully rendered 

findings of fact,” even where the record includes evidence that supports a different view.132 We 

therefore find that Joint Intervenors have not raised a substantial question with respect to the 

Board’s findings of fact on Contention 1. 

2. Contention 2

a. Background of Contention 2 

In Contention 2, Joint Intervenors argued that the FSEIS did not consider the extent to 

which groundwater will be degraded due to the establishment of alternate concentration limits 

for hazardous constituents after site restoration: 

The FSEIS fails to meet the requirements of 10 C.F.R. §§ 51.90-

94 and NEPA because it fails to evaluate the virtual certainty that 

the applicant will be unable to restore groundwater to primary or 

secondary limits in that the FSEIS does not provide and evaluate 

information regarding the reasonable range of hazardous 

constituent concentration values that are likely to be applicable if 

the applicant is required to implement an [alternate concentration 

limit] in accordance with 10 C.F.R. Part 40, App. A, Criterion 

5B(5)(c).133

 

132 Private Fuel Storage, CLI-03-8, 58 NRC at 25-26. 

133 FSEIS Order, app. A. 
- 28 - 

Joint Intervenors maintained that alternate concentration limits are inevitable at the Ross Project 

site because no decommissioned in situ uranium recovery facility has ever met primary or 

secondary standards for all contaminants.134 

As explained with respect to Contention 1, in situ recovery facility licensees must 

establish restoration goals for hazardous constituents in groundwater through post-licensing, 

pre-operational testing.135 Under the terms of its license, Strata must restore the groundwater in 

each wellfield to regulatory limits.136 The first option for any given constituent is background (the 

level present prior to operations), which the Board termed the “primary” standard.137 The 

“secondary” standard to which the contention refers is a maximum contaminant level provided 

for certain constituents in Part 40, Appendix A, Table 5C.138 If the licensee cannot meet primary 

or secondary standards for a particular constituent after restoration efforts, it may file a license 

amendment request for a site-specific alternate concentration limit for that constituent.139 To 

receive the license amendment, the licensee must demonstrate both that the concentration of 

the particular hazardous constituent is as low as reasonably achievable and that the alternate 

concentration limit presents no significant hazard to human health or the environment, in 

accordance with factors listed in Criterion 5B(6). These factors include potential adverse effects 

to groundwater and to hydraulically connected surface water, current and future uses of the 

 

134 See Motion to Migrate Contentions to FSEIS, at 23-25. 

135 See generally, 10 C.F.R. pt. 40, app. A, Criterion 7A. 

136 See Ex. SEI015, License, at 7 (License Condition 10.6). 

137 See LBP-15-3, 81 NRC at 114 (citing 10 C.F.R. pt. 40, app. A, Criterion 5B(5)(a)). 

138 10 C.F.R. pt. 40, app. A, Criterion 5B(5)(b), Table 5C; see also LBP-15-3, 81 NRC at 114. 

The values provided in Table 5C are the Maximum Constituent Levels set by the Environmental 

Protection Agency in 40 C.F.R. pt. 192, Health and Environmental Protection Standards for 

Uranium and Thorium Mill Tailings. 

139 10 C.F.R. pt. 40, app. A, Criterion 5B(5)(c). 
- 29 - 

ground and surface waters, and possible cumulative effects with other sources of 

contamination.140 The license amendment application would also be subject to an opportunity 

for interested persons to request a hearing. 

In admitting the contention at the outset of the proceeding, the Board rejected the Staff’s 

argument that the environmental effects of possible alternate concentration limits are too 

uncertain for consideration in the FSEIS.141 The Board acknowledged that the Staff “likely” 

could not determine prior to licensing the facility what alternate concentration limits would be 

approved for a particular wellfield after restoration.142 But the Board reasoned that the Staff 

could perform a bounding analysis to consider the range of alternate concentration limits that 

have been approved historically.143 

The Staff accordingly included a discussion of three approved aquifer restorations in the 

FSEIS.144 These three restorations could give only a general idea of the range of possible 

future alternate concentration limits for the Ross Project because they had all been approved at 

a time when the Staff used a different interpretation of “secondary” standard than it now uses.145 

 

140 Id., Criterion 5B(6). 

141 LBP-12-3, 75 NRC at 197. 

142 Id. 

143 Id. 

144 Ex. SEI009A, FSEIS, § 4.5.1.3, at 4-45 to 4-46. 

145 Crow Butte Wellfield 1 restoration was approved in 2003 (see Ex. NRC026, Letter from 

Daniel M. Gillen, NRC, to Michael L. Griffen, Crow Butte Resources, Inc., License Amendment 

15, Crow Butte Resources In Situ Leach Facility, License No. SUA-1534, Wellfield #1 

Restoration Acceptance (Feb. 12, 2003) (Crow Butte Wellfield 1 Approval)). Smith RanchHighland Wellfield A was approved in 2004 (see Ex. NRC027, Letter from Gary S. Janosko, 

NRC to W. F. Kearney, Power Resources, Inc., License Amendment 15, Crow Butte Resources 

In Situ Leach Facility, License No. SUA-1534, Wellfield #1 Restoration Acceptance (June 29, 

2004)). Irigaray Mine Units 1-9 restoration was approved in 2006 (see Ex. NRC034, Letter from 

Gary S Janosko, NRC, to Donna L. Wichers, COGEMA Mining, Inc., Review of Cogema Mining, 
- 30 - 

Prior to 2009, the Staff considered the “secondary standard” to be coextensive with the “preoperational class of use” established by the state, which—as the Board’s decision 

acknowledges—is not accurate.146 Alternate concentration limits were not considered 

necessary at the three sites discussed in the FSEIS bounding analysis because they all met the 

“pre-operational class of use” standard following restoration.147 Therefore, those licensees did 

not have to meet the more stringent criteria—set forth at Part 40, Appendix A, Criterion 5B(6)—

that apply at the Ross site.148 In contrast, before any alternate concentration limit could be 

approved for any constituent at the Ross Project site, Strata would have to show that its 

concentration is as low as reasonably achievable and meets the other criteria set forth in 

Criterion 5B(6). For this reason, the FSEIS bounding analysis provides a conservative basis for 

predicting the likely range of alternate concentration limits that might be approved following 

restoration of the Ross Project site. 

The FSEIS states that for the three sites discussed in the bounding analysis, most of the 

groundwater quality constituents were either restored to post-licensing, preoperational 

background levels or to “class I (domestic use)” standards.149 In addition, where elevated levels 

 

Inc., Irigaray Mine Restoration Report, Production Units 1 Through 9, Source Materials License 

SUA-1341 (Sept. 20, 2006)). 

146 See LBP-15-3, 78 NRC at 116 n.46; see also Ex. SEI009A, FSEIS, § 4.5.1.3, at 4-45. 

147 After a 2009 Regulatory Issue Summary found this interpretation to be in error, the Staff has 

used the concentrations set forth in 10 C.F.R. pt. 40, app. A, Table 5C as the secondary 

standard. Ex. NRC038, NRC Regulatory Issue Summary 2009-05, Uranium Recovery Policy 

Regarding: (1) the Process for Scheduling Licensing Reviews of Applications for New Uranium 

Recovery Facilities and (2) the Restoration of Groundwater at Licensed Uranium In Situ

Recovery Facilities, at 3 (Apr. 29, 2009).

148 Ex. SEI009A, FSEIS, § 4.5.1.3, at 4-45. 

149 Id. at 4-48. The state department of environmental quality determines the water quality 

standards. The Wyoming Department of Environmental Quality has standards for Class I 

(domestic use), Class II (agricultural use), or Class III (livestock use). 
- 31 - 

of certain hazardous constituents persisted after restoration, this did not change the class of 

use.150 The FSEIS concludes that, given the relative success of past restorations, the impacts 

to groundwater quality in the exempted portion of the aquifer and the confined aquifers 

surrounding the exempted aquifer would be small following restoration at the Ross Project 

site.151 

The Board found that the Staff’s approach in the FSEIS, as supplemented by the record 

in this proceeding, “adequately identifies the potential impacts” of an alternate concentration 

limit, should one be necessary for the Ross project.152 The Board found that the Staff’s 

determination that impacts would be small was supported by the fact that the mined portion of 

the aquifer has been permanently exempted as a source of drinking water and “there have been 

no reported instances of an excursion from an [in situ uranium recovery] facility negatively 

impacting drinking water.”153 The Board concluded that the record supported the Staff’s ultimate 

conclusion that the likely impact due to alternate concentration limits is small: 

[T]he FSEIS, as supplemented by the uranium bounding analysis 

discussed in this decision, adequately identified the potential 

environmental impacts of an [alternate concentration limit] should 

an [alternate concentration limit] be necessary for the Ross 

Project site. Furthermore, the preponderance of the evidence 

before the Board supports the FSEIS determination that the 

 

150 Id. 

151 Id. The FSEIS explains that operations will be conducted within an area defined by an 

aquifer exemption permit granted by the Wyoming Department of Environmental Quality and 

approved by the Environmental Protection Agency. See id., § 2.1.1.1, at 2-27; see also

Ex. SEI0034, Letter from Derrith R. Watchman-Moore, U.S. Environmental Protection Agency, 

Region 8, to Kevin Frederick, Wyoming Department of Environmental Quality, aquifer exemption 

approval: Strata Energy (May 15, 2013). The area covered by the exemption permit is referred 

to as the exempted aquifer but is actually a portion of the mined (ore zone) aquifer. 

152 LBP-15-3, 81 NRC at 133. The FSEIS omitted the uranium concentration approved for two 

of the three sites discussed (Smith Ranch-Highland facility and Irigaray Mine Units 1-9). See

Ex. SEI009A, FSEIS, § 4.5.1.3, at 4-46. But this information was provided in the Staff’s 

testimony. See Ex. NRC001, Staff Initial Testimony, at 33; see also LBP-15-3, 81 NRC at 117. 

153 LBP-15-3, 81 NRC at 132. 
- 32 - 

restoration-associated impacts on groundwater quality within the 

Ross Projects site [ore zone] aquifer and surrounding aquifers will 

be SMALL.154

b. Claims of Factual Error in Resolution of Contention 2 

On appeal, Joint Intervenors argue that the Board made several errors in affirming the 

Staff’s conclusion that the potential environmental impacts from alternate concentration limits 

would be small.155 At bottom, these arguments amount to disagreements with how the Board 

weighed the evidence. 

(1) CLAIM THAT BOARD RELIED ON EVIDENCE NOT IN THE RECORD

Joint Intervenors argue that the Board erred in relying on evidence that was not in the 

record—specifically, a “transport model” relating to the restoration approval for the Crow Butte 

Resources wellfield 1 in Nebraska (one of the examples used in the Staff’s “bounding analysis” 

for the Ross Project).156 As explained below, Joint Intervenors show no clear error in the 

Board’s decision, nor do they raise a substantial question of prejudicial procedural error in the 

Board’s decision not to require documentary evidence related to transport modeling at the Crow 

Butte site. 

In Contention 2, Joint Intervenors claimed that the Staff will approve any number as an 

alternate concentration limit, provided the licensee first reasonably attempts to meet primary or 

secondary limits.157 

At the hearing, the Staff denied that its practice is to set alternate concentration limits 

based on how much effort the licensee has expended. The Staff’s witness, Dr. Johnson, stated 

 

154 Id. at 133. 

155 Petition at 16-21. 

156 Id. at 16-17. 

157 See e.g., Ex. JTI003-R, Pre-Filed Testimony of Dr. Lance Larson on Contentions 2 and 3, at 

22 (Aug. 25, 2014) (Larson Direct Testimony).
- 33 - 

that the Staff generally evaluates the “transport that would go on from the location within the 

[exempted] area out to that exempted boundary, the boundary of the exempted aquifer.”158 In 

other words, the Staff evaluates whether the contaminants would naturally attenuate to primary 

or secondary levels by the time the groundwater reaches the boundary of the exempted portion 

of the aquifer.159 Joint Intervenors’ expert requested to see the “transport model” used by the 

Staff for the Crow Butte site.160 In response, Dr. Johnson replied that the documents supporting 

the Crow Butte license amendment approval had been included in the Staff’s exhibits.161 On 

appeal, Joint Intervenors argue that the Board erred because its conclusion rested in part on “a 

non-existent transport model.”162

We find no Board error here; the Board appropriately relied on the Staff’s and Strata’s 

testimony in reaching its decision.163 Contrary to Joint Intervenors’ assertions, the Staff 

provided extensive documentation to support its use of the Crow Butte analysis to support its 

NEPA review here.164 The Staff never claimed to have a document called a “transport model” 

 

158 Tr. at 617 (Johnson); see LBP-15-3 at 121. 

159 See Tr. at 559-60, 617 (Johnson). 

160 Id. at 618 (Larson and Johnson). 

161 Id. at 618-19 (Larson and Johnson). 

162 Petition at 16-17 (citing LBP-15-3, 81 NRC at 121). 

163 See LBP-15-3, 81 NRC at 121 (citing Tr. at 617 (Johnson)). It is not error for a board to rely 

on witness testimony. See, e.g., Oyster Creek, CLI-09-7, 69 NRC at 268. 

164 Staff provided several documents supporting its approval of the Crow Butte restoration. See, 

e.g., Ex. NRC022, Letter from Stephen P. Collings, Crow Butte Resources, Inc., to John 

Surmeier, NRC, Mine Unit 1 Restoration Report Submittal and Request for License Amendment 

(Jan. 14, 2000); Ex. NRC023, Letter from Stephen P. Collings, Crow Butte Resources, Inc., to 

Melvyn Leach, NRC, Mine Unit 1 Restoration; Response to Request For Additional Information 

(Aug. 24, 2001); Ex. NRC024, Letter from Michael L. Griffin, Crow Butte Resources, Inc. to 

Daniel M. Gillen, NRC, Mine Unit I Groundwater Stability Data (Oct. 11, 2002); Ex. NRC026, 

Crow Butte Wellfield 1 Approval. 
- 34 - 

on the record—the Board’s discussion of the Staff’s testimony, as cited by Joint Intervenors, 

refers to “transport modeling,” not a “transport model.”165 While the Board certainly could have 

asked the parties to produce additional documentary evidence, it was not required to do so. 

The Staff’s testimony regarding its practice when approving previous restorations provided a 

reasonable basis for determining how the Staff would address a request for an alternate 

concentration limit at the Ross Project site, and Joint Intervenors have not raised a substantial 

question regarding the Board’s reliance on the Staff’s practice here. 

(2) CLAIM THAT BOARD MISINTERPRETED THE DATA CONCERNING 

RESTORATION APPROVAL OF SMITH RANCH-HIGHLAND SITE 

Joint Intervenors next argue that the Board misinterpreted the evidence concerning the 

Smith Ranch-Highland facility, Wellfield A, the restoration of which the Staff approved in 

2004.166 Specifically, they argue that the Board mistakenly interpreted testimony of their expert 

Dr. Larson to refer to groundwater samples taken during the period when groundwater was still 

undergoing active restoration, when the data actually was gathered during the “stability” period 

(that is, after active restoration when the licensee was attempting to ascertain whether 

hazardous constituent concentrations had stabilized).167 

Joint Intervenors’ argument points to no material error. The Board found that 

Dr. Larson’s data was not relevant because it reflected site conditions prior to the time the Staff 

approved the restoration.168 The focus of Contention 2 was the reasonable range of alternate 

 

165 Petition at 16 (quoting LBP-15-3, 81 NRC at 121). Moreover, the term “transport modeling” 

was not used by the Staff expert in discussing the Staff’s work with the Board—the Board 

introduced the term to refer to the Staff’s work as part of the discussion in LBP-15-3. See LBP15-3, 81 NRC at 121.

166 Petition at 17-18. 

167 Id. (citing Ex. JTI005A-R2, NRC ISL Database Spreadsheets, at 227-32). 

168 LBP-15-3, 81 NRC at 123-24. 
- 35 - 

concentration limits that might be approved at the Ross Project site after its restoration is 

approved. Regardless of whether Dr. Larson’s data came from the restoration period or the 

stability period, its relevance to Contention 2 is minimal because only the concentrations that 

the Staff actually approved for restoration matter to the bounding analysis.169

(3) CLAIM THAT BOARD IGNORED EVIDENCE OF EXCURSIONS

Joint Intervenors next argue that the Board “dismissed evidence of mining fluid 

excursions impacting water in vertically or horizontally adjacent aquifers outside the exempted 

areas.”170 Joint Intervenors cite four paragraphs of the Board’s decision to support their claims, 

and they are correct that the Board does not discuss vertical or horizontal excursions in those 

four paragraphs.171

The evidence that Joint Intervenors cite, however, relates to excursions at sites for 

which restoration had not been approved.172 Joint Intervenors do not explain how vertical or 

horizontal excursions at these sites are relevant to Contention 2, which concerns elevated 

hazardous constituent levels that may linger on the site after restoration has been approved. 

 

169 Joint Intervenors also argue that the Board confused Staff testimony concerning a different 

site with the evidence concerning Smith Ranch-Highland Wellfield A. Petition at 18. This is 

incorrect. The Board simply pointed to the Staff’s discussion of the other site to show that it is 

inappropriate to average the results of samples taken during restoration because only the 

concentrations at the end of the restoration process (at the point of Staff approval) are relevant 

to the question of what concentrations the Staff might approve at the Ross Project site. See

LBP-15-3, 81 NRC at 123-24. 

170 See Petition at 18-19. 

171 Id. at 18 (citing ¶¶ 4.98-4.101, LBP-15-3, 81 NRC at 126-28).

172 See Ex. JTI036, 2012 Status Update Casing Leak Investigation C, E, and F Wellfields Smith 

Ranch-Highland Operations, at 59-85 (Feb. 20, 1013). Joint Intervenors’ Petition also refers to 

pages 61-62 of Ex. JTI005B-R2, which is only 35 pages long. See Petition at 19 n.21. We 

observe that most of the pages of this exhibit discuss a project (Willow Creek/Christensen 

Ranch) that the Board found not to be relevant to Contention 2 because site restoration has not 

been approved. See LBP-15-3, 81 NRC at 126-27. The exhibit also discusses shallow aquifer 

contamination at Smith Highland Ranch due to excursions during operations, but that issue is 

likewise not relevant to Contention 2. 
- 36 - 

On appeal, Joint Intervenors do not cite any testimony or pleading to support their claim that 

excursions during operations or restoration relate to Contention 2. We do not consider cursory, 

unexplained legal arguments, and we will not speculate about what a pleading is supposed to 

mean.173 Therefore, Joint Intervenors have not identified a Board error that would warrant 

granting their petition for review. 

(4) CLAIM THAT BOARD UNJUSTIFIABLY RELIED ON EXEMPTION

AND ON FUTURE PROCESSES TO PROTECT THE AQUIFER 

Joint Intervenors also argue that the Board erred in relying on the aquifer exemption 

granted by Wyoming and the license amendment process as additional support for upholding 

the Staff’s conclusion that impacts from alternate concentration limits will be small.174 

We find that Joint Intervenors have not raised a substantial question with respect to the 

Board’s findings. As an initial matter, the fact that the mined portion of the aquifer is 

permanently exempted as a source of drinking water and the possibility of a future hearing on 

an alternate concentration limit were only two factors the Board discussed in concluding that the 

FSEIS discussion of post restoration impacts was reasonable. Moreover, contrary to Joint 

Intervenors’ suggestion, these factors support the FSEIS’s conclusion that any elevated 

hazardous constituent levels left at the Ross Site following restoration would have a small 

overall environmental impact. 

Our regulations and license amendment process require that no alternate concentration 

limit be approved without meeting safety criteria, regardless of whether any intervenor has 

 

173 See, e.g., Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. 

(Vermont Yankee Nuclear Power Plant), CLI-10-17, 72 NRC 1, 30 (2010); Commonwealth 

Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999) 

(quoting Kansas Gas and Electric Co. (ALAB-279, 1 NRC 559, 576 (1975)). 

174 Petition at 19-20. 
- 37 - 

contested the matter.175 If a licensee fails to show that a proposed alternate concentration limit 

meets the standards of Criterion 5B(6), then it will have to restore to primary or secondary 

limits.176 Moreover, Joint Intervenors and any other interested party will have the opportunity to 

submit contentions and request a hearing on any future license amendment related to alternate 

concentration limits, should such an amendment become necessary for this site. 

Joint Intervenors’ argue that because the future concentration limits are unknown, the 

Staff cannot show that it meets NEPA now and that the Staff did not provide sufficient 

information to support its finding that the environmental impacts will be small.177 However, Joint 

Intervenors have not pointed to any specific matter where the Board refused to consider their 

arguments and supporting evidence. It was appropriate for the Board to rely on the testimony 

from the Staff’s experts describing how the Staff reviews secondary concentration limits in 

license amendment applications. And the Board also modified a license condition in response 

to Joint Intervenors’ concerns that unplugged exploratory wells (or boreholes) existing on the 

site could cause vertical excursions during operations.178 The Board’s narrowly tailored relief 

appropriately addresses the concerns raised by Joint Intervenors. 

In sum, Joint Intervenors have not identified clear error in the Board’s factual findings 

relating to post-restoration contamination levels in the mined aquifers. None of their arguments 

call into question the Board’s judgment that the FSEIS, as supplemented by the hearing record, 

 

175 See generally, 10 C.F.R. pt. 40, app. A, Criterion 5B(5). 

176 See Ex. SEI015, License, at 7-8 (License Condition 10.6). 

177 See Petition at 19-20. 

178 See LBP-15-3, 81 NRC at 143-44. The Board modified License Condition 10.2, which 

requires the licensee to locate and properly abandon historic exploratory wells or boreholes that 

may exist on the site. The Board expanded the reach of the License Condition to include wells 

outside the perimeter monitoring ring and downgradient of the wellfield. Id.
- 38 - 

reasonably concluded that the impact of hazardous constituents persisting in the aquifer after 

restoration would be small. 

c. Claims of Legal Error in Resolution of Contention 2 

Joint Intervenors raise one legal argument with respect to Contention 2: that the Staff’s 

issuance of the license prior to the hearing and Board decision violates NEPA.179 They argue 

that if the hearing record and Board decision are necessary to complete, or even correct, the 

environmental record, then the license must be vacated and remanded to the Staff so that it 

may consider the complete NEPA analysis prior to deciding whether to issue the license.180 To 

support their claim, Joint Intervenors point to the Board’s agreement with their concern that 

Staff’s analysis was flawed in some respects.181 Joint Intervenors argue that the Board simply 

“declar[ed] these violations cured” by its decision, violating the “fundamental NEPA precepts 

that data may not be utilized simply to ‘justify[ ] decisions already made.’”182

Joint Intervenors fail to raise a substantial question for our review because the Board 

found the Staff’s environmental impact determinations to be well-founded. Our adjudicatory 

proceedings, as we recently discussed in Crow Butte Resources, Inc., contemplate that a Board 

or the Commission may appropriately modify, condition, or revoke a license, if required by the 

circumstances of a particular proceeding.183 Here, the Board evaluated the Staff’s analysis and 

determined that, with the additional information considered at the hearing and in the Staff’s prefiled testimony, the environmental impacts of the proposed licensing action were appropriately 

 

179 Petition at 14-16.

180 Id. at 14-15.

181 Id. at 14 (citing LBP-15-3, 81 NRC at 122, 124-26). 

182 Id. at 15 (citing 40 C.F.R. § 1502.2(g)). 

183 Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-15-17, 82 NRC 

33, 40 (2015). 
- 39 - 

identified.184 And, after identifying several gaps in the Staff’s analysis, the Board determined 

that modifying a license condition was the appropriate approach to address Joint Intervenors’ 

concerns about groundwater protection.185 While we agree with Joint Intervenors that 

remanding, or staying, the license would have been appropriate had the Board determined that 

the Staff’s analysis did not adequately consider the environmental consequences of this 

licensing action, there is no need for such action here. Here the Board’s modification of the 

environmental record of decision did not change, in any material aspect, the Staff’s ultimate 

determination that impacts to groundwater in the OZ aquifer and surrounding aquifers would be 

SMALL. Instead, the Board merely modified the record of decision to include a revised license 

condition and additional analyses that were placed on the record before the Board by various 

parties.186 We have previously held that a Board’s hearing, hearing record, and subsequent 

decision on a contested environmental matter augment the environmental record of decision 

developed by the Staff with respect to this issue187 and Joint Intervenors have not persuaded us 

to abandon this practice. Not only have Joint Intervenors failed to demonstrate Board error in 

reaching this decision, but we find that the environmental record of decision, as modified by the 

Board supports the issuance of a license to Strata.188

 

184 See LBP-15-3, 81 NRC at 133. 

185 Id. at 143-44. 

186 Indian Point, CLI-15-6, 81 NRC at 387-88 (“When a hearing is held on a proposed action, 

‘the initial decision of the presiding officer or the final decision of the Commissioners acting as a 

collegial body will constitute the record of decision.’ ...We have consistently interpreted our 

regulations to provide that environmental impact statements are modified by any subsequent 

Board or Commission decision.”); see Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 

87174), CLI-01-4, 53 NRC 31, 53 (2001).

187 Indian Point, CLI-15-6, 81 NRC at 388.

188 It is well settled that parties challenging an agency’s NEPA process are not entitled to relief 

unless they demonstrate harm or prejudice. Joint Intervenors have not done so here because 

the Board concluded that the Staff’s analysis of the reasonably foreseeable impacts from 
- 40 - 

Therefore, we decline to take review of the Board’s legal and factual rulings with respect 

to Contention 2. 

3. Contention 3 

In Contention 3, Joint Intervenors argued that Strata and the Staff failed to demonstrate 

that the mined aquifer is isolated and that Strata can prevent fluid migration outside the 

production zone during operations: 

CONTENTION: The FSEIS fails to assess [adequately] the 

likelihood and impacts of fluid migration to the adjacent 

groundwater, as required by 10 C.F.R. §§ 51.90-94 and 

NEPA, and as discussed in NUREG-1569 § 2.7, in that: 

1. The FSEIS fails to analyze sufficiently the potential for and 

impacts associated with fluid migration associated with unplugged 

exploratory boreholes, including the adequacy of applicant’s plans 

to mitigate possible borehole-related migration impacts by 

monitoring wellfields surrounding the boreholes and/or plugging the 

boreholes. 

2. There was insufficient information for the NRC staff to make an 

informed fluid migration impact assessment given that the 

applicant’s six monitor-well clusters and the 24-hour pump tests at 

four of these clusters provided insufficient hydrological information 

to demonstrate satisfactory groundwater control during planned 

high-yield industrial well operations.189

All of Joint Intervenors’ challenges to the Board’s decision on Contention 3 relate to how 

the Board weighed the evidence. Based upon our review of the record, we find that none of 

Joint Intervenors’ arguments raise a substantial question with respect to the Board’s factual 

findings. 

 

 

alternate concentration limits was fundamentally correct. Nw. Coal. for Alts. to Pesticides 

(NCAP) v. Lyng. 844 F.2d 588, 594 (9th Cir. 1988).

189 See FSEIS Order, app. A, at 1; see also Ex. JTI003-R, Larson Direct Testimony, at 49-51, 

54-61; Ex. JTI001-R, Abitz Direct Testimony, at 45-49.
- 41 - 

a. Historic Boreholes

There are nearly 1500 historic exploratory boreholes on the site, most of which have not 

been properly abandoned (plugged) and over 100 of which have not yet been located.190 As the 

Board observed, the FSEIS acknowledges that boreholes that have not been properly 

abandoned could cause vertical excursions—leaks to overlying or underlying aquifers—and that 

vertical excursions are more difficult to recover than horizontal excursions.191 

On appeal, Joint Intervenors argue that the Board relied too heavily on a license 

condition requiring the licensee to “attempt to locate and abandon” the boreholes within the 

perimeter of each wellfield, a provision they argue is essentially unenforceable.192 Joint 

Intervenors argue that Strata’s witness acknowledged at hearing that it may not be able to fill all 

the boreholes, and that the Staff witness stated that the Staff would be “powerless to act” unless 

it can show that Strata’s violation was “willful.”193 

As an initial matter, Joint Intervenors’ petition mischaracterizes the hearing testimony. 

Contrary to Joint Intervenors’ arguments, Strata’s witness stated that Strata might not be able to 

locate every borehole prior to performing the pre-operational pump test, but that the boreholes 

“should show up in that pump test.”194 In addition, our enforcement process does not require 

 

190 LBP-15-3, 81 NRC at 137 (citing Tr. at 679-80 (Knode)). 

191 Id. (citing FSEIS, § 4.5.1.2, at 4-37). 

192 Petition at 22. Joint Intervenors refer to License Condition 10.12, which the Board modified 

to include boreholes outside the perimeter well ring if the wells extend into the first underlying 

aquifer and are downgradient of the Wellfield. The modified condition requires the licensee to 

fill boreholes from the perimeter monitoring ring to the closer of the Ross Project license area 

boundary or the outer boundary of the exempted aquifer. See LBP-15-3, 81 NRC at 143-44. 

The licensee has requested an amendment to this condition, which is subject to a separate 

opportunity to request a hearing. See supra, note 31. 

193 Petition at 22. 

194 Tr. at 766 (Griffin); see also Ex. NRC001, Staff Initial Testimony, at 49 (“The Staff determined 

that after performing hydrologic tests to demonstrate confinement of the ore aquifer and routine 
- 42 - 

that a violation be “willful” for the Staff to take enforcement action.195 The NRC has a welldeveloped enforcement process that considers both willful and non-willful violations by NRC 

licensees and applicants.196 A licensee’s failure to correct a violation once identified could result 

in a notice of violation.197 

We find that the Board appropriately considered Joint Intervenors’ evidence and 

arguments with respect to boreholes. The Board found that the license condition requiring 

Strata to “attempt” to locate the boreholes was sufficient because the NRC does not assume 

that a licensee will ignore its obligations and other license conditions will help to assure Strata’s 

compliance.198 In its decision, the Board discussed License Condition 10.13, which requires 

Strata to conduct additional pumping tests to ensure isolation of the aquifers prior to beginning 

production of a wellfield; and License Condition 11.5, which requires Strata to immediately 

cease operations if a vertical excursion is detected. 199 The Board found that these license 

conditions provide additional incentive for Strata to locate and abandon the boreholes.200 

Moreover, License Condition 10.12 requires Strata to “document its efforts” to find and fill the 

 

excursion monitoring, a drill hole not abandoned would be detected and proper corrective 

actions would be undertaken.”)

195 At the hearing, both Staff’s witness and Staff’s counsel acknowledged that the witness was 

not qualified to testify regarding the specifics of the NRC’s enforcement process. See Tr. at 765 

(Mr. Saxton) (“I don’t know the exact procedure”); id. at 766 (Ms. Monteith) (”I don’t believe that 

our witnesses are qualified to testify to the enforcement process.”).

196 See, e.g., “Nuclear Regulatory Commission Enforcement Manual,” Rev. 9, (Dec. 2015) 

(ML102630150).

197 See Nuclear Regulatory Commission Enforcement Manual, Rev. 9 (2013) (updated Sept. 8, 

2015), § 2.2.3, at 100-01. 

198 LBP-15-3, 81 NRC 140-41 (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating 

Station), CLI-00-6, 51 NRC 193, 207 (2000)). 

199 LBP-15-3, 81 NRC at 141 (citing Ex. SEI015, License, at 9, 13).

200 Id. at 140 (citing Ex. SEI015, License, at 13-14). 
- 43 - 

boreholes, enabling Staff to assess whether Strata’s efforts were in good faith.201 Given that the 

Board considered the contrary evidence and explained its reasoning, the Board’s conclusion 

that these factors, taken together, will ensure the licensee’s compliance with the requirement to 

find and plug historic boreholes was reasonable. 

b. Pumping Tests 

Next, Joint Intervenors argue that the Board disregarded evidence that chemical 

analyses of the groundwater following Strata’s prelicensing pumping tests indicate that the 

aquifer is not confined.202 As the Board explained, Strata performed an aquifer test—or 

pumping test—in each monitoring well cluster to confirm that the ore zone aquifer was confined. 

According to the prefiled testimony of Strata’s witness, Ray Moores, this test involves pumping 

the well installed in the ore zone aquifer at a constant rate.203 Pressure transducers installed in 

the wells in the ore zone, the overlying aquifer, and the underlying aquifer measure and record 

the water level in each well on one minute intervals.204 According to Mr. Moores, “by evaluating 

responses, or lack thereof, recorded in the [overlying and underlying aquifer] wells it was also 

possible to measure the integrity of the confining intervals above and below the [ore zone] 

aquifer.”205 Mr. Moores stated that the transducers were sufficiently sensitive to detect “a leaky 

aquifer even over short pumping durations.”206 He acknowledged that the pumping tests can 

 

201 See Ex. SEI015, License, at 9. 

202 Petition at 23. 

203 Ex. SEI042, Initial Written Testimony of Ray Moores, at 5 (Aug. 25, 2014) (Moores 

Testimony); see also LBP-15-3, 81 NRC at 144-46. 

204 Ex. SEI042, Moores Testimony at 5. The tests were used to evaluate a variety of ore zone 

characteristics as well as confirming confinement. Id.

205 Id. 

206 Id. at 6. 
- 44 - 

only demonstrate confinement over the immediate area, not the entire Ross Project area.207 For 

this reason, License Condition 10.13 requires additional tests prior to opening each wellfield.208 

According to the prefiled testimony of Joint Intervenors’ expert Dr. Abitz, changes in the 

levels of sodium and sulfate in the water from the ore zone aquifer following the tests indicate 

that water from the ore zone aquifer had been diluted with water from the overlaying aquifer, 

which has naturally lower levels of these chemicals.209 The Board, however, found that 

Dr. Abitz’s interpretation was “mere speculation,” and it concluded that the “better explanation” 

for the variable levels of these constituents was the natural differences in the minerals within the 

ore zone.210 

In challenging the Board’s decision, Joint Intervenors claim that the Board’s conclusion 

inherently contradicts its conclusion with respect to Contention 1, wherein the Board found that 

the site had been adequately characterized through its prelicensing monitoring program.211 

Joint Intervenors argue that “if the results of groundwater tests in the [ore zone] will ‘vary 

considerably’ depending on the mineral content where they are located then [Strata] and Staff 

failed to demonstrate that the limited groundwater data collected meaningfully characterized the 

baseline.”212 

We do not see any inherent contradiction between the Board’s findings on Contentions 1 

and 3. The FSEIS does not state that water quality is consistent throughout each aquifer—the 

 

207 Id. 

208 See Ex. SEI015, License, at 9. 

209 Ex. JTI001-R, Abitz Direct Testimony, at 49-50. 

210 LBP-15-3, 81 NRC at 147.

211 Petition at 23. 

212 Id. 
- 45 - 

groundwater monitoring data in Appendix C shows that the concentrations of the constituents 

tested vary between the wells.213 At most, the pumping test results show that the picture of the 

Ross Project site groundwater could be painted with a finer brush—it does not show that more 

data is necessary to characterize the site and evaluate the environmental impacts of the 

proposed project. The Board’s factual finding resolved two competing technical opinions, which 

is a matter where the Commission ordinarily defers to the Board’s judgment.214 Based upon our 

review of the record, we conclude that the Board’s interpretation of the pumping test results is 

reasonable and that Joint Intervenors have failed to identify a clear factual error on the Board’s 

part. 

c. Selection of Excursion Indicators (Excursion Monitoring Parameters) 

Joint Intervenors also argue that the Board erred in declining to require Strata to use 

uranium as an excursion indicator—one of the characteristics specifically monitored at the 

perimeter of a wellfield to ensure that mining fluids have not escaped the area of operation.215 

Specifically, Joint Intervenors argue that the Board recognized that there is “uncertainty” about 

the movement of uranium in groundwater, and that it was therefore “error for the Board to 

conclude that the Staff had appropriately found the impacts from excursions will be small based 

on excursion parameters that will not include monitoring for uranium.”216 Further, Joint 

Intervenors argue that the Board erroneously shifted the burden to Joint Intervenors to show 

 

213 See Ex. SEI09B, FSEIS, app. C. 

214 See, e.g., Oyster Creek, CLI-09-7, 69 NRC at 264; Louisiana Energy Services, L.P. (National 

Enrichment Facility), CLI-05-28, 62 NRC 721, 723 (2005). 

215 Petition at 24. 

216 Id. 
- 46 - 

that uranium should be used, rather than requiring the Staff and Strata to show why it should 

not.217 

Joint Intervenors miss the Board’s point with respect to the excursion indicators. As the 

Board noted, the FSEIS explains that most in situ uranium recovery facilities will use chloride, 

conductivity, and total alkalinity because “[t]hese constituents move through the aquifer faster 

than other water-quality parameters.”218 In other words, the excursion indicators are selected 

because they will provide the earliest warning of a problem, not because they are the chemicals 

of most concern in groundwater protection. The Board agreed with Staff that the “uncertainly” 

surrounding the behavior of uranium in various chemical environments (that is, whether it will be 

adsorbed or remain in solution) is a reason not to use uranium as an excursion indicator.219 The 

Board, after weighing the parties’ evidence, concluded that 

the case for using uranium as an excursion indicator for the Ross 

Project [was] not compelling, particularly given Joint Intervenors’ 

failure to present any convincing site-specific evidence to counter 

the Staff[‘s] and [Strata’s] showings that chloride and the other 

 

217 Id. 

218 See LBP-15-3, 81 NRC 148 n.73. At least three excursion indicators must be used at each 

wellfield, and the FSEIS explains why chloride, conductivity, and alkalinity are usually selected: 

[C]hloride is selected because it does not interact strongly with the 

minerals in the ore zone; it is easily measured; and chloride 

concentrations are significantly increased during ISR operations. 

Conductivity, which is correlated to total dissolved solids (TDS), is 

also considered a good excursion indicator because of the high 

concentrations of dissolved constituents in the lixiviant as compared 

to the surrounding aquifers. . . . Total alkalinity (carbonate plus 

bicarbonate plus hydroxide) is used as an indicator in wellfields 

where sodium bicarbonate or carbon dioxide is used in the lixiviant. 

Ex. SEI009A, FSEIS, § 2.1.1.2, at 2-31; see also Ex. NRC001, Staff Testimony, at 72-73. 

Strata’s license provides that sulfate will be used as the default excursion indicator in lieu of 

chloride only in the aquifer underlying the ore zone aquifer, because of the naturally high 

chloride in that aquifer. See Ex. SEI015, License, at 13 (License Condition 11.4). 

219 LBP-15-3, 81 NRC at 149-50. 
- 47 - 

indicators proposed for use by [Strata] and accepted by the Staff 

would be effective excursion indicators at Ross.220

Joint Intervenors’ petition does not point to any evidence that demonstrates factual error 

in the Board’s finding that “uranium is not as effective a tool for providing a timely alert regarding 

a lixiviant excursion.”221 Although Joint Intervenors claim generally that Drs. Abitz and Larson 

demonstrated that “uranium may move through the aquifer more quickly than chloride and the 

other excursion indicator constituents,” they cite nothing for that proposition. 222 In fact, 

Dr. Abitz’s testimony, which the Board discussed, argues that uranium would be a good 

indicator because the “levels of uranium in the lixiviant are generally three to four orders of 

magnitude greater than true baseline; and increases in chloride, alkalinity and [total dissolved 

solids] in the aquifer will be less than one or two orders of magnitude.”223 But, at most, this 

testimony would show that if uranium is present, it might be easier to detect than the selected 

excursion indicators—not that it would be detected earlier than the indicators Strata plans to 

monitor. 

In addition, we do not find that the Board improperly shifted the burden of proof. The 

Board discussed the parties’ prefiled and hearing testimony with respect to this issue, and it 

appropriately considered the various parties’ positions—it simply found the Staff’s and Strata’s 

positions more persuasive.224 Joint Intervenors have not provided any basis for us to review the 

Board’s factual findings with respect to the excursion indicators. 

 

 

220 Id. at 150. 

221 Id. 

222 Petition at 7, 24. 

223 LBP-15-3, 81 NRC at 149 n.76 (quoting Ex. JTI001-R, Abitz Direct Testimony, at 43). 

224 See id. at 148-50. 
- 48 - 

d. Evidence of Excursions at Other Sites 

Finally, Joint Intervenors argue that the Board “discounted” evidence of excursions at 

other in situ uranium recovery sites because of the aquifer exemption.225 They argue that 

regardless of the exemption, the aquifer is still part of the “affected environment, impacts to 

which must be disclosed and considered in the FSEIS.”226 

We do not find that the Board disregarded the evidence. The Board’s conclusion relied 

on the licensee’s ability to detect and recover excursions (in addition to the fact that the aquifer 

is exempted from human consumption) to conclude that the potential environmental impacts 

from operations is small.227 In addition, the FSEIS discusses the possibility of excursions and 

describes recovery measures that are imposed by License Condition 11.5.228 Joint Intervenors 

have not shown either that the Board erred in its findings of fact or that the FSEIS failed to 

consider all potential environmental impacts from the proposed facility. 

 

 

225 Petition at 24-25 (citing LBP-15-3, 81 NRC at 150-52). 

226 Id. at 25. 

227 LBP-15-3, 81 NRC at 151.

228 See Ex. SEI009A, FSEIS, § 4.5.1.2, at 4-41 to 4-43. 
- 49 - 

III. CONCLUSION 

For the foregoing reasons, we deny the petition for review. 

IT IS SO ORDERED.

 For the Commission 

NRC SEAL /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 29th day of June, 2016
Commissioner Baran, Concurring in Part and Dissenting in Part 

I concur in part with and dissent in part from the Commission’s decision. 

I join the majority in the decision except for the subsection that denies review of the Joint 

Intervenors’ claim that the Board erred in resolving Contention 2 by allowing its Initial Decision 

to supplement the Final Supplemental Environmental Impact Statement (FSEIS) after issuance 

of the license. I respectfully dissent from this portion of the decision. I would grant review of 

this claim and order the Staff to cure the deficiency in its environmental analysis. 

With respect to Contention 2, Joint Intervenors contend that the Staff’s issuance of the 

license prior to the hearing and Board decision violates NEPA.1 They argue that if the hearing 

record and Board decision are necessary to complete or correct the environmental record, then 

the license must be vacated and remanded to the Staff so that it may consider the complete 

NEPA analysis prior to deciding whether to issue the license.2 In response to the Joint 

Intervenors’ claims regarding the need to suspend the license, the Board found that there was 

not yet a final agency action because the “agency’s NEPA record of decision remains open, and 

is subject to adjudicatory supplementation relative to matters associated with any pending 

admitted NEPA contention, at least until the hearing record is closed and the final agency 

adjudicatory decision is issued.”3 To support their claim on appeal, Joint Intervenors point to the 

Board’s agreement with their concern that Staff’s environmental analysis was flawed in some 

respects.4 Joint Intervenors argue that the Board simply “declar[ed] these violations cured” by 

 

1 Natural Resources Defense Council’s & Powder River Basin Resource Council’s Petition for 

Review of Atomic Safety and Licensing Board’s January 23, 2015 Initial Decision Denying 

Environmental Contentions 1 Through 3, and Interlocutory Decisions Denying Environmental 

Contentions 4/5A and 6/7 (Feb. 17, 2015), at 14-16 (Petition). 

2 Id. at 14-15. 

3 LBP-15-3, 81 NRC 65, 122 n.49 (2015). 

4 Petition at 14 (citing LBP-15-3, 81 NRC at 122, 124-26). 
- 2 - 

its decision, “violat[ing] the fundamental NEPA precepts that data may not be utilized simply to 

‘justify[ ] decisions already made.’”5 I believe that the Joint Intervenors raise a substantial 

question for our review. 

The Staff’s practice in materials cases is to issue a license before the completion of 

contested hearings on environmental matters. Section 2.1202(a) provides: 

During the pendency of any hearing under this subpart, consistent with the NRC 

staff’s findings in its review of the application or matter which is the subject of the 

hearing and as authorized by law, the NRC Staff is expected to promptly issue its 

approval or denial of the application....6

 It appears that the Staff reads this regulatory provision to require it to issue a 

license when it completes its safety review and issues the Final Environmental Impact 

Statement. However, in the adjudicatory context, the Commission has held that its 

decisions and Licensing Board decisions can supplement7 the NEPA analysis to correct 

deficiencies in such an analysis.8 Allowing adjudicatory decisions to supplement the 

NEPA analysis means that, where there are contested environmental matters, the NEPA 

process is not complete until any admitted environmental contentions are resolved. 

Thus, the Staff’s current practice, in some instances, conflicts with a core requirement of 

NEPA—that the decisionmaker consider all environmental impacts of an action before

making a decision.9 

 

5 Id. at 15 (emphasis omitted) (quoting 40 C.F.R. § 1502.2(g)). 

6 10 C.F.R. § 2.1202(a). 

7 Here, I am using the term “supplement” as it is used in the Commission case law, not as it is 

used in 10 C.F.R. § 51.92. 

8 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC 

340, 387-88 (2015). 

9 Petition at 15 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). 
- 3 - 

In my view, this conflict requires the Commission to clarify its supplementation 

doctrine to account for situations like this one. Several options are available to avoid this 

conflict. For example, the Staff could wait until the end of the hearing process on 

contested environmental contentions prior to issuing a license. In this circumstance, a 

Board or Commission decision could revise the NEPA analysis prior to the issuance of 

the license, which would ensure that the decisionmaker considers the complete NEPA 

analysis prior to the completion of the federal action. Alternatively, if the Staff issues a 

license upon completion of its environmental review but before the completion of any 

hearing challenging that review, then a subsequent Board or Commission decision 

finding a flaw in the NEPA analysis or process may require the suspension or vacatur of 

the license pending Staff action to cure the NEPA deficiency. In these circumstances, 

the adjudicatory decision or proceedings cannot supplement the NEPA environmental 

document or Record of Decision after the fact because the licensing action has already 

been taken in reliance on the NEPA analysis. 

Here, the license has already been issued and the Board found aspects of the FSEIS to 

be deficient. The Board evaluated the Staff’s environmental analysis and determined that, only 

with the additional information considered at the hearing, were the environmental impacts of the 

proposed licensing action appropriately identified.10 Because the Board found a deficiency in 

the NEPA analysis, the agency did not have an adequate environmental analysis at the time it 

decided whether to issue the license. Thus, the Staff’s decision to issue the license was not 

informed by an adequate NEPA analysis. 

 

10 See LBP-15-3, 81 NRC at 133. 
- 4 - 

In federal court, a violation of NEPA, by itself, is not always sufficient to justify 

suspending or revoking the license.11 However, the Commission has a responsibility to ensure 

that the Staff complies with NEPA. The agency should not undermine NEPA’s core requirement 

of fully informed decisionmaking by failing to grapple with the problem of pairing a regulation 

that allows a materials license to be issued prior to adjudicatory hearings with an adjudicatory 

doctrine that permits the NEPA environmental review to be supplemented by adjudications 

completed after issuance of the license. We should not endorse a practice that would likely 

result in future after-the-fact supplementation of the NEPA analysis. Therefore, I would order 

the Staff to revise the Record of Decision in this case to include all relevant information, 

including the change to the license condition made by the Board and the additional information 

the Board found necessary to supplement the FSEIS in response to Contention 2, so that the 

Director of the Office of Nuclear Materials Safety and Safeguards could make a fully informed 

decision on whether to reaffirm, modify, condition, or revoke the license. If the Staff did not 

revise the Record of Decision and make a decision on whether to reaffirm, modify, condition, or 

revoke the license within 30 days, then I would order the Staff to suspend the license until such 

steps are taken. 

 

11 See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010) (injunction not 

automatic or default remedy to cure NEPA violation); Nw. Coal. for Alts. to Pesticides v. Lyng, 

844 F.2d 588, 595 (9th Cir. 1988); Cty. of Del Norte v. United States, 732 F.2d 1462, 1467 (9th 

Cir. 1984); Cent. Delta Water Agency v. U.S. Fish & Wildlife Serv., 653 F. Supp. 2d 1066, 1086-

87 (E.D. Cal. 2009); Muhly v. Espy, 877 F. Supp. 294, 300 (W.D. Va. 1995). 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

Strata Energy, Inc. ) Docket No. 40-9091-MLA 

(Ross In Situ Recovery Uranium Project) ) 

 ) 

(Materials License Application) ) 

 ) 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-16-13) have been served upon the following persons by Electronic Information Exchange 

and via electronic mail. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop T-3F23 

Washington, DC 20555-0001 

G. Paul Bollwerk, III, Chair 

Administrative Judge 

paul.bollwerk@nrc.gov

Dr. Craig M. White 

Administrative Judge 

craig.white@nrc.gov

Alana Wase, Law Clerk 

alana.wase@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop O-7H4 

Washington, DC 20555-0001 

OCAAMAIL@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop O-16H12 

Washington, DC 20555-0001 

Hearing Docket 

hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop O-15D21 

Washington, DC 20555-0001 

Carrie Safford, Esq. 

Christopher Hair, Esq. 

Emily Monteith, Esq. 

David Cylkowski, Esq. 

Susan Vrahoretis, Esq. 

Jody Martin, Esq. 

Sabrina Allen, Paralegal 

catherine.scott@nrc.gov

carrie.safford@nrc.gov

christoper.hair@nrc.gov

emily.monteith@nrc.gov

david.cylkowski@nrc.gov

susan.vrahoretis@nrc.gov

jody.martin@nrc.gov

sabrina.allen@nrc.gov

Strata Energy, Inc. 

Thompson & Pugsley, PLLC 

1225 19th Street, NW, Suite 300 

Washington, DC 20036 

Anthony J. Thompson, Esq. 

Christopher S. Pugsley, Esq. 

Cindy Seaton, Paralegal 

ajthompson@athompsonlaw.com

cpugsley@athompsonlaw.com

cseaton@thompsonlaw.com
STRATA ENERGY, INC., Ross In Situ Recovery Uranium Project, Docket No. 40-9091-MLA 

COMMISSION MEMORANDUM AND ORDER (CLI-16-13)

2

Winston & Strawn, LLP 

1700 K Street, NW 

Washington, DC 20006-3817 

Tyson R. Smith, Esq. 

Carlos L. Sisco, Paralegal 

E-mail: trsmith@winston.com

 csisco@winston.com

Powder River Basin Resource Council 

934 N. Main Street 

Sheridan, WY 82801 

Shannon Anderson, Esq. 

sanderson@powderriverbasin.org

Natural Resources Defense Council, Inc. 

1152 15th Street, NW, Suite 300 

Washington, DC 20005 

Geoffrey H. Fettus, Esq. 

Senior Attorney 

gfettus@nrdc.org

Natural Resources Defense Council, Inc. 

Law Office of Howard Crystal 

813 A Street, NE 

Washington, DC 20002 

Howard M. Crystal, Esq. 

hmcrystallaw@gmail.com

 

[Original signed by Herald M. Speiser ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 29th day of June, 2016