Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Respondent *

requests that Samuel W. Bodman be substituted for William B. Richardson as the

appellee in this case.

F I LED

United States Court of Appeals

Tenth Circuit

May 3, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CITIZENS FOR ALTERNATIVES TO

RADIOACTIVE DUMPING, BETTY

RICHARDS, and BOB GASTON,

Plaintiffs-Appellants,

v. No. 04-2314

UNITED STATES DEPARTMENT

OF ENERGY, and SAMUEL W.

BODMAN, United States Secretary of *

Energy,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CIV-99-321-MCA/ACT)

John A. McCall, Albuquerque, New Mexico on the briefs, for PlaintiffsAppellants.

Jennifer L. Scheller, Attorney, Environment & Natural Resources Division,

Department of Justice, Washington, D.C. (Kelly A. Johnson, Acting Assistant

Attorney General, and John A. Bryson, Attorney, Environment & Natural

Resources Division, Department of Justice, Washington, D.C., David C. Iglesias,

United States Attorney, and Raymond Hamilton, Assistant United States

Attorney, Office of the United States Attorney, Albuquerque, New Mexico, and

Elizabeth C. Rose, Of Counsel, Office of the Chief Counsel, United States
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Department of Energy, Carlsbad Field Office, Carlsbad, New Mexico, with her on

the brief), for Defendants-Appellees.

Before MURPHY, BRORBY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

After three environmental impact statements spanning two decades, the

Department of Energy (DOE) approved operation in 1998 of the Waste Isolation

Pilot Plant (WIPP), a nuclear waste repository located in southeastern New

Mexico. Citizens for Alternatives to Radioactive Dumping (Citizens) sought to

enjoin the facility’s operation under the National Environmental Policy Act

(NEPA). Citizens argued DOE relied on faulty data regarding the subsurface

geomorphology of the site in its environmental review, thereby underrepresenting the environmental hazards of waste storage at the site. The district

court denied the requested injunction, finding DOE’s actions were not arbitrary

and capricious. 

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

court’s decision.

I. Background

The Facility and Location. Congress approved WIPP near Carlsbad, New

Mexico in 1979 to provide “a research and development facility to demonstrate
 The SEIS-II’s administrative records fill over 30 boxes. Among the 1

issues studied were site geology and hydrology, worker safety, environmental

justice, and transportation.

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the safe disposal of radioactive waste resulting from . . . defense activities and

programs.” Pub. L. 96-164, 93 Stat. 1259 (1979). One year later, in 1980, DOE

completed its first environmental impact statement for the project as required by

NEPA. In 1990, after the completion of most of the WIPP construction, DOE

prepared a second supplemental environmental impact statement before facility

testing would begin. 

Finally, before the facility would begin accepting waste, DOE conducted a

third impact statement, the Disposal Phase Final Supplemental Environmental

Impact Statement (SEIS-II). It published the SEIS-II record of decision in 1

January of 1998, concluding disposal of radioactive wastes at WIPP was the

preferred alternative to other options and authorizing disposal at the site. 63 Fed.

Reg. 3,624 (Jan. 23, 1998). In conjunction with the SEIS-II, Congress ordered

the Environmental Protection Agency to conduct a parallel environmental

assessment. The Agency’s review concluded with a finding in 1998 that WIPP

would comply with the radioactive waste disposal regulations promulgated by the

Agency. 63 Fed. Reg. 27,357 (May 18, 1998).

The waste repository for the WIPP is located 2,150 feet underground, in the

Salado Formation, a massive salt bed with low permeability that impedes

groundwater flow in and out of the WIPP repository. About 1,400 feet above the
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WIPP is a fractured layer of dolomite rock called the Culebra Dolomite. The

Culebra is the first layer above the Salado Formation with a continuous body of

groundwater. Above the Culebra sits 86 feet of claystone, mudstone, and

siltstone sandwiched between layers of anhydrite called the Tamarisk Member. 

Above the Tamarisk Member, another layer of dolomite, the Magenta Dolomite,

runs from 621 to 596 feet below the surface. These formations are arrayed as

follows:

Geologic Layer Depth Below the Surface in Feet

Surface to Forty-Niner 0 to 538

Forty-Niner 538 to 596

M agenta Dolomite 596 to 621

Tamarisk 621 to 707

Culebra Dolomite 707 to 729

Lower Part of Rustler Formation 729 to 844

Upper Part of Salado Formation 844 to 1,343

McNutt Potash 1,343 to 1,727

Lower Part of Salado Formation 1,727 to 2,650

WIPP Site 2,150

Source: Aple. Supp. App. at 144 

The possibility of radioactive material from the WIPP escaping into the

local environment via groundwater was a risk factor considered by the DOE in

SEIS-II. In modeling the risk, the DOE chose to investigate the Culebra Dolomite

in detail, but not the Magenta, because prior studies included in the SEIS-II

record led DOE to conclude the Culebra was the “most transmissive unit at the
 Transmissivity is the rate at which water passes through a unit of 2

thickness. It can be measured in square feet per day or equivalent units.

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WIPP site.” Aple. Supp. App at 157. The agency arrived at this conclusion 2

based on a record that established, “[i]n most locations, the hydraulic

conductivity of the Magenta is one to two orders of magnitude less than that of

the Culebra.” Id. at 159. Moreover, the radio-nuclides stored at WIPP would

need to make their way through both the Culebra and the Tamarisk, which

“functions as a confining layer” due to its low permeability, before reaching the

Magenta. Id. at 158. Failure to model the Magenta is the basis for Citizens’

appeal. 

Citizens’ Lawsuit. Citizens first brought common law public nuisance

claims in New Mexico state court in 1999, seeking to enjoin the WIPP facility. 

DOE removed the case to federal court, which denied the request for an

injunction. Citizens subsequently amended their complaint to assert an additional

claim that the SEIS-II inadequately complied with NEPA. Citizens had

previously participated in the public comment phase of SEIS-II. As part of their

NEPA claim, Citizens sought to inject evidence outside the administrative record

based on research conducted by an expert consultant. 

The extra-record evidence allegedly came to light after the record for SEISII was completed. Citizens’ consultant, Dr. Richard Hayes Phillips has actively

studied the geomorphology around the WIPP site for twenty years. In an affidavit
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prepared for this litigation, he claims during that time to have “witnessed a

pattern of lies and deceptions designed to disguise the true hydrology of the . . . 

site.” Aplt. App. at 61. Dr. Phillips supports these allegations for purposes of

this appeal with two charges: He points to (1) a 1983 study of the Magenta

included in the SEIS-II that relies upon a miscalculated data point at a test well

(H-3) drilled near WIPP, thereby understating the groundwater transmissivity of

the formation; and (2) penciled editing marks made to include the miscalculation

in the study, from which Phillips arrives at the conclusion of “data falsification.” 

Id. 

The district court upheld DOE’s record of decision. The court concluded

(1) the decision was not arbitrary and capricious, and (2) there was no reason to

consider the proffered extra-record materials in its review. In particular, the court

carefully reviewed a number of charges by Citizens that SEIS-II was inadequate

in the way it analyzed the facility’s hydrology, geology, and possible release

scenarios. The court, while acknowledging the scientific debate surrounding

many of the issues, ultimately found support in the administrative record for the

decisions made by DOE. 

On appeal, Citizens has narrowed the issues to the following: (1) the

district court should have admitted extra-record evidence regarding allegations of

tampering with and miscalculation of data involving groundwater studies in the

Magenta formation; and (2) DOE was arbitrary and capricious in its evaluation of
Citizens also contends the district court improperly granted summary 3

judgment on their NEPA challenge. Although Citizens is correct that summary

judgment is inappropriate for judicial review of NEPA claims, see Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1579–80 (10th Cir. 1994), the district

court did not grant summary judgment. It is clear from the court’s order that it

relied on the administrative record in reaching its final judgment pursuant to the

Administrative Procedures Act. [Mem. Op. and Order at 55.] 

DOE argues that Citizens did not present its challenge during the open

public comment period and its objections should therefore be forfeited. The

district court did not directly address this issue and DOE did not cross-appeal the

issue. Since DOE’s actions were not arbitrary and capricious in any event, we do

not address DOE’s forfeiture argument.

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the record by not further investigating the properties of the Magenta based on the

allegations raised by Dr. Phillips. 

3

II. Discussion

A. Extra-Record Evidence

Judicial review of agency action is normally restricted to the administrative

record. Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th Cir. 2004). It is only in

“extremely limited circumstances, such as where the agency ignored relevant

factors it should have considered or considered factors left out of the formal

record” that we will consider extra-record evidence. Id. (internal quotations

omitted). 

We may also delve outside the administrative record when there is a

“strong showing of bad faith or improper behavior.” Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). In dealing with scientific and

technical evidence, extra-record evidence “may illuminate whether an
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[environmental impact statement] has neglected to mention a serious

environmental consequence, failed adequately to discuss some reasonable

alternative, or otherwise swept stubborn problems or serious criticism . . . under

the rug.” Lee, 354 F.3d at 1242 (internal quotations omitted). We review a

district court’s determination of whether or not to exclude extra-record evidence

for abuse of discretion. Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078,

1089 n.2 (10th Cir. 2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d

660, 665 (9th Cir. 1998)). 

To support its claim the administrative record should be supplemented,

Citizens contends water flow data for the Magenta was concealed and

misrepresented. Relying on the allegations contained in Dr. Phillips’s 1999

affidavit, Citizens claims the studies based on this misrepresentation led the

government to wrongly assume the Culebra was the most transmissive geological

layer in the storage facility’s proximity. As a result, DOE decided it need not

model the transmissive properties of the Magenta layer. Citizens argues that Dr.

Phillips’s charges satisfy its obligation to make “a strong showing that DOE

engaged in bad faith and improper conduct,” and therefore additional evidence

should be produced in the administrative record. Aplt. Brief at 19. 

We disagree. Upon examining Dr. Phillips’s affidavit, we find nothing to

justify the inclusion of extra-record evidence to demonstrate gaps or inadequacies

in the SEIS-II.
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Dr. Phillips makes two claims of misrepresentation. 

First, he asserts he discovered a document as part of his research that

evidences tampering with a hydrology report relied on by DOE. He supports this

allegation by pointing to handwritten editing marks (he calls them “alterations”)

on a draft of a 1983 report which was eventually included in the SEIS-II. 

According to Dr. Phillips, the handwritten notations demonstrate the author of the

final report altered transmissivity data for the Magenta dolomite downward from

a high of 40-square feet per day to a high of 1-square foot per day. The

significance of this data, which he claims DOE relied on in dispensing with

further modeling of the Magenta, is to make the Magenta appear more

impermeable than it really was. 

Second, he claims the 1983 report relied on these altered calculations for

one of the test wells drilled into the Magenta, well number H-3, even though the

calculations are inconsistent with the raw transmissivity data collected in 1978. 

The 1983 report calculated a transmissivity at H-3 of 0.1-square feet per day for

the Magenta, but Dr. Phillips calculated a rate of 330-square feet per day using

the underlying raw data, which he argues is four times more transmissive than the

highest rate found anywhere in the Culebra. Dr. Phillips alleges this discrepancy

at one well (out of the fifteen drilled into the Magenta) demonstrates the

Magenta’s transmissivity numbers were falsified, thus establishing bad faith and

improper conduct on the part of the DOE. 
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The district court disagreed. It concluded, in reviewing the agency record,

that the handwritten alterations resemble proofreading and peer review marks:

insufficient in themselves to demonstrate a sinister motive. As to the

transmissivity calculations, the court found the raw data had been available for

twenty years, which was plenty of time for Citizens to review it and comment on

it for the administrative record during the normal course of review. 

We have carefully reviewed the record and agree the extra-record evidence

does not warrant inclusion in the administrative record. Although our review is

thorough, “designation of the Administrative Record, like any established

administrative procedure, is entitled to a presumption of administrative regularity. 

The court assumes the agency properly designated the Administrative Record

absent clear evidence to the contrary.” Bar MK Ranches v. Yuetter, 994 F.2d 735,

740 (10th Cir. 1993) (citation omitted). Citizens has not overcome the

presumption of regularity, nor made a “strong showing” of improper behavior in

development of the record.

First of all, we are not convinced that editing marks on a draft report show

anything conclusive. Citizens has pointed to no evidence that the final report did

not represent the author’s findings and analysis. It is hardly surprising that the

study went through a number of rounds of editing; on this record, nothing can be

inferred from either the existence of the draft or of handwritten edits. Citizens
Citizens also argues that DOE failed to rebut its allegations in its 4

briefing. But the burden was not on DOE to rebut the charges, it was on Citizens

to show bad faith or improper behavior. It did not do so. And even if we did

allow in the extra-record evidence, as we explain in the next section, the data do

not establish that the DOE’s decision was arbitrary and capricious.

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has made nothing more than a speculative claim uncorroborated by evidence of

wrongdoing.

More importantly, the 1983 Magenta study does not stand alone in the

administrative record. The record of decision contains a number of other studies

regarding the Magenta, all of which were considered by the DOE’s decisionmaking process. Citizens fails to demonstrate the independent significance of the

1983 report or how it decisively undercuts the entire volume of data considered

by DOE.

Confusion centering on one data point from one well does not establish bad

faith. As we discuss below, the agency had sufficient evidence to support its

decision, and, nothing in the record even suggests SEIS-II relied on the

challenged data. Citizens has not carried its burden to demonstrate the record of

decision was falsified or altered in bad faith. 

Without more, the district court did not abuse its discretion in rejecting

Citizens’ proffer of extra-record evidence in its review of the agency decision.4

B. NEPA Compliance

“The role of the courts in reviewing compliance with NEPA ‘is simply to

ensure that the agency has adequately considered and disclosed the environmental
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impact of its actions and that its decision is not arbitrary and capricious.’” Utah

Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1208 (10th Cir. 2002)

(quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87,

97–98 (1983)). Under this standard, we consider whether “the [agency’s]

decision was based on a consideration of the relevant factors and whether there

has been a clear error of judgment.” Overton Park, 401 U.S. at 416. “An agency

action is arbitrary and capricious if the agency . . . entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or [if the decision] is so implausible

that it could not be ascribed to a difference in view or the product of agency

expertise.” Utah Environmental Congress v. Richmond, __F.3d ___ (10 Cir.

th

2007) (internal quotations omitted). Our review of a district court ruling on

NEPA compliance is de novo. Utahns for Better Transp. v. U.S. DOT, 305 F.3d

1152, 1161 (10th Cir. 2002).

While NEPA advises caution by ordering review of the potential

environmental consequences of federal action, it also recognizes the flip-side to

this precautionary principle: that adverse consequences, losses, and other hazards

may result from federal inaction. “So long as the record demonstrates that the

agencies in question followed the NEPA procedures, which require agencies to

take a ‘hard look’ at the environmental consequences of the proposed action, the

court will not second-guess the wisdom of the ultimate decision.” Id. at 1163
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(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)). 

Perfection is not required by the NEPA process.

“We apply a rule of reason standard (essentially an abuse of discretion

standard) in deciding whether claimed deficiencies in a [final] EIS are merely

flyspecks, or are significant enough to defeat the goals of informed

decisionmaking and informed public comment.” Lee, 354 F.3d at 1237 (citations

omitted). Our deference is “especially strong where the challenged decision[]

involve[s] technical or scientific matters within the agency’s area of expertise.” 

Utah Environmental Congress, ___F.3d at ___. 

Applying these principles, DOE’s approval decision was not arbitrary and

capricious. DOE explained as part of the administrative review that it chose not

to model the Magenta dolomite because the Culebra was the “most transmissive

unit at the WIPP site.” Aple. Supp. App at 157. It based this conclusion on

various studies that relied on data generated from test wells drilled at the site. 

Researchers drilled fifteen wells into the Magenta to analyze its transmissivity.

[Aple. Supp. App. at 159.] These wells generated data over a number of years,

which, as the SEIS-II points out, indicated the Magenta’s overall transmissivity

was lower than recorded at H-3 and lower than comparative spots in the Culebra. 

Contrary to Citizens’s allegations, the SEIS-II did not ignore data regarding

the Magenta layer. In fact, the administrative record reported transmissivity rates
 This figure was converted from feet per second in the SEIS-II to feet per 5

day for this opinion.

The district court agreed that Dr. Phillips’s extra-record evidence 6

demonstrated at most “a dispute among members of the scientific community

concerning the interpretation of hydrologic and geologic data regarding the WIPP

site.” Mem. Op. and Order at 26. Citizens contends the transmissivity

calculation from well H-3 is not a matter of opinion open to dispute, but rather an

(continued...)

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in the Magenta as high as 372-square feet per day, even above the 330-square 5

feet per day calculations that Citizens claims were left out of the 1983 report and

ultimately the SEIS-II. [Id. at 159.] The SEIS-II concluded that “[i]n most

locations” the “the hydraulic conductivity of the Magenta is one to two orders of

magnitude less than that of the Culebra.” Id. at 159. And, importantly, the

“Magenta does not have hydraulically significant fractures in the vicinity of

WIPP.” Id.

As to the test well data, follow-up studies conducted in 1988 and 1989

collected new data on the Magenta’s transmissivity at test well H-3. The new

information found transmissivity higher than the 0.1-square feet per day of the

1983 report, but still less than 0.2-square feet per day. [Aple. Supp. App. at 198.] 

These new studies, which appeared as part of the SEIS-II record, [Aple. Supp.

App. at 166] create, at best, a debate over the proper interpretation of H-3 data

between the numbers cited by Dr. Phillips and the follow-up reports. In such a

debate, the agency was free to side with the reasonable opinions of its own

qualified experts. “When specialists express conflicting views, an agency must 6
(...continued) 6

empirical matter. The district court was not claiming the 1978 transmissivity

reading from well H-3 was in dispute, however; it was suggesting a reasonable

dispute existed regarding the overall transmissivity of the Culebra versus the

overall transmissivity of the Magenta in light of Phillips’s evidence. 

“The Rustler Formation is the most significant hydrogeologic unit above 7

WIPP because it contains the Culebra Dolomite, the first laterally continuous

hydrologic unit above the Salado Formation” where WIPP would store the

radioactive waste. Aple. Supp. App. at 156.

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have discretion to rely on the reasonable opinions of its own qualified experts

even if, as an original matter, a court might find contrary views more persuasive.”

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). Even if the

Magenta was more transmissive at well H-3, sufficient information from the other

fourteen wells in the record support the conclusion that the Culebra was the most

transmissive layer overall. DOE neither failed to consider the Magenta, nor failed

to consider data counter to the evidence before it. 

Furthermore, transmissivity was not the only factor the DOE relied upon in

modeling the Culebra instead of other layers. The DOE also focused on the

Culebra because it is the closer formation to WIPP storage. Radio-nuclides 7

stored at WIPP would need to make their way through both the Culebra and the

low permeability of the Tamarisk before reaching the Magenta. If waste were

unlikely to escape the Culebra, it was even less likely to escape the overlying

Magenta. The DOE both considered and disclosed the environmental impact of

its modeling decision, in compliance with NEPA.
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In sum, DOE was not arbitrary and capricious in its review of the

geological data before it. It did not ignore the Magenta layer in its evaluation,

but rather provided careful and reasoned explanations for modeling the Culebra

and not the Magenta. The i’s were dotted, the t’s were crossed, and NEPA

requires nothing more. On this record, we cannot discern that DOE made a “clear

error in judgment” in concluding that its site modeling was adequate.

III. Conclusion

For the above reasons, we find that DOE was not arbitrary and capricious

in its environmental review, and the district court did not abuse its discretion in

rejecting the extra-record evidence. We therefore AFFIRM the district court

decision.