United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2007 Decided December 11, 2007 

No. 06-1301 

NUCLEAR INFORMATION AND RESOURCE SERVICE AND

PUBLIC CITIZEN, 

PETITIONERS

v. 

NUCLEAR REGULATORY COMMISSION AND

UNITED STATES OF AMERICA, 

RESPONDENTS

LOUISIANA ENERGY SERVICES, L.P., 

INTERVENOR

Consolidated with 

06-1310 

On Petitions for Review of an Order of the 

Nuclear Regulatory Commission 

Lindsay A. Lovejoy, Jr. argued the cause and filed the 

briefs for petitioners. 
2 

Darani Reddick, Attorney, U.S. Nuclear Regulatory 

Commission, argued the cause for respondents. With her on 

the brief were John A. Bryson, Attorney, U.S. Department of 

Justice, Karen D. Cyr, General Counsel, U.S. Nuclear 

Regulatory Commission, John F. Cordes, Jr., Solicitor, E. 

Leo Slaggie, Deputy Solicitor, and Molly Barkman and 

Geraldine R. Fehst, Attorneys. 

Michael F. McBride argued the cause for intervenor 

Louisiana Energy Services, L.P. in support of respondent. 

With him on the brief were David A. Repka and John W. 

Lawrence. 

Before: GINSBURG, Chief Judge, and ROGERS and 

KAVANAUGH, Circuit Judges. 

 Opinion for the Court filed by Circuit Judge

KAVANAUGH. 

KAVANAUGH, Circuit Judge: More than 100 nuclear 

reactors in the United States produce electricity to power 

American homes and businesses. Those reactors provide 

about 20 percent of the Nation’s electricity. 

In this case, the Nuclear Regulatory Commission granted 

a license for a new, privately owned facility in New Mexico 

to produce enriched uranium as fuel for nuclear reactors. 

Individuals who live near the facility objected to the license, 

and they filed petitions for review in this Court. Petitioners 

contend that the NRC violated the National Environmental 

Policy Act and the Atomic Energy Act in granting the license. 

We deny the petitions and uphold the NRC’s decision to grant 

the license. 
3 

I 

For several decades after the development of nuclear 

power in the 1950s, the Federal Government produced all of 

the enriched uranium used to fuel America’s nuclear reactors. 

In the early 1990s, Congress privatized the uranium 

enrichment operations; it formed the United States 

Enrichment Corporation and later approved the sale of that 

company. See USEC Privatization Act, Pub. L. No. 104-134, 

§§ 3101-17, 110 Stat. 1321, 1321-335 to -350 (1996); Energy 

Policy Act of 1992, Pub. L. No. 102-486, Title IX, 106 Stat. 

2776, 2923. Today, USEC operates the country’s only 

uranium enrichment plant, which is in Kentucky. 

In 1990, Congress also amended the Atomic Energy Act 

so that the Nuclear Regulatory Commission could license the 

construction and operation of additional uranium enrichment 

plants that would be privately owned and operated. See Solar, 

Wind, Waste, and Geothermal Power Production Incentives 

Act of 1990, Pub. L. No. 101-575, § 5, 104 Stat. 2834, 2835-

36 (codified as amended at 42 U.S.C. § 2243). During the 

next 13 years, the NRC received two such applications for 

uranium enrichment facilities, both filed by Louisiana Energy 

Services, L.P. (LES). In 1991, LES applied to build the 

“Claiborne” enrichment facility near Homer, Louisiana; LES 

later withdrew that application. See In re La. Energy Servs. 

L.P., 47 N.R.C. 113, 114-15 (1998). In December 2003, LES 

sought a license for the so-called National Enrichment 

Facility near Eunice, New Mexico. That second application 

is at issue in this case. 

Among other things, an applicant for a private-sector 

enrichment facility must present a “plausible strategy” for 

disposing of the nuclear waste that the facility will generate. 

An applicant must provide a reasonable cost estimate to 
4 

accompany the disposal strategy and give the NRC adequate 

assurance that the applicant can pay for disposal. 42 U.S.C. 

§ 2243(d)(2); 10 C.F.R. § 70.25; In re La. Energy Servs., 

L.P., 34 N.R.C. 332, 337 (1990). The NRC must conduct an 

“adjudicatory hearing on the record” to ensure the applicant 

has met all the requirements for licensure, and it must prepare 

an environmental impact statement under the National 

Environmental Policy Act “before the hearing . . . is 

completed.” 42 U.S.C. § 2243(a)(1), (b)(1), (2); see also 42 

U.S.C. § 4332(2)(C). 

After LES’s application in this case, the NRC issued a 

notice of hearing and opportunity for interested parties to 

intervene in the licensure proceeding. Notice of Receipt of 

Application for License, 69 Fed. Reg. 5873, 5874 (Feb. 6, 

2004). Two organizations – Public Citizen and the Nuclear 

Information and Resource Service – jointly filed a petition to 

intervene. Pursuant to NRC regulations, they challenged 

several aspects of LES’s application. See 10 C.F.R. 

§ 2.309(a) (requiring that parties specify “contentions which 

[they] seek[] to have litigated in the hearing”). The NRC 

assigned the conduct of the licensure proceeding to a threemember Atomic Safety and Licensing Board, which 

considered petitioners’ contentions in a series of on-therecord hearings. The NRC then heard appeals from the 

Licensing Board’s decisions. 

At the Licensing Board, petitioners alleged that the 

NRC’s environmental impact statement had not adequately 

assessed the environmental impact of the proposed facility – 

particularly the environmental hazards associated with 

uranium waste disposal. The Licensing Board issued written 

rulings examining the environmental effects of the facility 

and denying petitioners’ claims. The NRC upheld the 
5 

Licensing Board’s determinations in written rulings that 

further analyzed the environmental issues. 

Petitioners also alleged that LES had not articulated a 

plausible strategy to dispose of the waste generated by the 

facility, and that it had not provided a reasonable estimate of 

disposal costs. The Licensing Board considered LES’s two 

alternative disposal strategies and the related cost estimates. 

First, the Licensing Board evaluated LES’s “private-sector 

strategy” and cost estimate for disposal at a private facility 

outside of New Mexico. On this point, the Licensing Board 

ruled for petitioners, holding that LES had not met its 

evidentiary burden to establish that the cost estimate for the 

private-sector strategy was reasonable. The NRC affirmed 

that conclusion. 

The Licensing Board also analyzed LES’s alternative, 

“public-sector strategy.” To support that strategy, LES relied 

on a law that requires the Department of Energy to take title 

to and dispose of “low-level radioactive waste” generated by 

uranium enrichment facilities. See 42 U.S.C. § 2297h-11. 

The Licensing Board found the strategy plausible and rejected 

petitioners’ challenge to the cost estimate for the strategy. 

The NRC upheld the Licensing Board’s decision, thus basing 

its ultimate approval of the license on LES’s public-sector 

strategy and cost estimate, rather than on LES’s private-sector 

plan. 

In March 2006, as it was considering petitioners’ 

contentions, the Licensing Board held a public hearing on the 

remaining issues associated with the enrichment facility. The 

Board held this hearing to meet the mandatory hearing 

requirement of 42 U.S.C. § 2243(b). In June 2006, the 

Licensing Board completed its review and authorized a 30-

year license for construction and operation of the facility. 
6 

The NRC declined to disturb the Licensing Board’s 

authorization of the license, and the decision became final in 

early August 2006. Construction has now begun. 

Petitioners filed timely petitions for review in this Court. 

They raise several objections to the NRC’s licensing decision: 

(1) the NRC violated the Atomic Energy Act by 

“supplementing” the environmental impact statement during 

the hearing process; (2) the NRC violated the National 

Environmental Policy Act by failing to adequately address the 

environmental consequences of disposing of the facility’s 

uranium waste; (3) the NRC violated the Atomic Energy Act 

by accepting LES’s waste disposal strategy and cost estimate; 

and (4) NRC Commissioner McGaffigan should have 

disqualified himself from the licensure proceeding. We 

address each issue in turn. 

II 

Before deciding petitioners’ claims, we first must 

determine whether they have standing. 

Under Article III of the Constitution, federal courts have 

jurisdiction only to decide cases or controversies. One aspect 

of the case-or-controversy requirement is that a party must 

demonstrate standing to sue – that it has suffered a “concrete 

and particularized” injury that is “actual or imminent”; 

“caused by, or fairly traceable to, an act that the litigant 

challenges in the instant litigation”; and “redressable by the 

court.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 

(D.C. Cir. 1996) (en banc) (internal quotation marks omitted). 

An organization may establish Article III standing by 

showing, among other things, that at least one of its members 

would have standing to sue in his or her own right. Nuclear 

Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1265 (D.C. Cir. 

2004). 
7 

This is a “procedural rights” case in which a party “has 

been accorded a procedural right to protect his concrete 

interests.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 

n.7 (1992). A party has standing to challenge an agency’s 

failure to follow a procedural requirement “so long as the 

procedures in question are designed to protect some 

threatened concrete interest of” the party. Id. at 573 n.8. The 

Supreme Court and this Court have repeatedly held that 

individuals who live near a proposed federal project and 

allege that they will suffer concrete injury from the project 

have standing in NEPA and other procedural rights cases. 

See, e.g., id. at 572 n.7 (standing for “one living adjacent to 

the site for proposed construction of a federally licensed” 

project, even where party “cannot establish with any 

certainty” that remedying procedural defect “will cause the 

license to be withheld or altered”); Cmtys. Against Runway 

Expansion, Inc. v. FAA, 355 F.3d 678, 684-85 (D.C. Cir. 

2004) (standing where parties’ neighborhoods would “be 

subjected to increased noise”); Nuclear Energy Inst., 373 F.3d 

at 1265-66 (standing where member alleged hazardous waste 

would “contaminate his community’s ground-water 

supplies”); cf. Fla. Audubon Soc’y, 94 F.3d at 667-68 (no 

standing where parties alleged only a “general risk” of harm 

and did not demonstrate a “geographic nexus to any asserted 

environmental injury”). 

Petitioners here live near the proposed uranium 

enrichment facility. They allege a risk of injury from 

radiation generated by the facility; in particular, they allege 

that because the NRC has not identified a suitable disposal 

strategy for the waste the facility will produce, the waste will 

be stored at the facility site and will emit harmful radiation. 

See, e.g., Declaration of Phillip C. Barr, at ¶¶ 3, 6-10, 13-16. 

They assert claims that, if successful, would require the NRC 

to take additional procedural steps before granting the license 
8 

and would at least temporarily prevent construction and 

operation of the facility near their homes. Petitioners’ claims 

suffice to give them standing under the precedents of the 

Supreme Court and this Court. 

III 

Under the National Environmental Policy Act, a federal 

agency proposing a major federal action significantly 

affecting the quality of the human environment must first 

prepare an “environmental impact statement” that includes a 

“detailed statement” on “(i) the environmental impact of the 

proposed action, (ii) any adverse environmental effects which 

cannot be avoided should the proposal be implemented,” and 

“(iii) alternatives to the proposed action.” 42 U.S.C. 

§ 4332(2)(C)(i)-(iii). Section 193 of the Atomic Energy Act 

specifically requires the NRC to prepare an EIS in connection 

with uranium enrichment facility applications before the 

hearing on the license is completed. See 42 U.S.C. 

§ 2243(a)(1), (2). 

Petitioners allege that the NRC violated the Atomic 

Energy Act by “supplementing” the EIS after the hearings on 

the license application. They also contend that, under NEPA, 

the EIS did not adequately address the environmental impact 

of disposing of the waste generated by the facility. 

A 

We first consider petitioners’ claim that the NRC 

violated the Atomic Energy Act by “supplementing” the EIS 

after the close of hearings on the license application. 

Section 193 of the Atomic Energy Act requires the NRC 

to conduct a “single adjudicatory hearing on the record” 

before issuing a license for constructing and operating a 
9 

uranium enrichment facility. 42 U.S.C. § 2243(b)(1), (2); see 

also 10 C.F.R. §§ 70.23a, 70.31. It also sets the deadline for 

preparing the EIS: 

An environmental impact statement . . . shall be 

prepared before the hearing on the issuance of a 

license for the construction and operation of a uranium 

enrichment facility is completed. 

§ 2243(a)(2) (emphases added). NRC staff released the draft 

EIS for public review in September 2004 and then issued the 

final EIS in July 2005 – well before both the NRC’s principal 

rulings on petitioners’ contentions and the “mandatory 

hearing” in March 2006 on the remaining, uncontested issues. 

As this timeline demonstrates, the NRC satisfied the Section 

193 requirement that an EIS “be prepared before the hearing 

. . . is completed.” § 2243(a)(2) (emphases added). 

Petitioners nonetheless claim that the EIS was not 

“prepared” before the hearing was completed because the 

written opinions of the Licensing Board and the NRC 

“supplemented” the EIS. In its ruling after the mandatory 

hearing, the Licensing Board considered the EIS and stated 

that a staff document and the related discussion in the Board’s 

opinion were intended to “supplement[]” the EIS. 63 N.R.C. 

747, 819 (2006). Similarly, when ruling on one of 

petitioner’s environmental contentions, the NRC included a 

detailed analysis of various waste disposal options and stated 

that the passage “amplified” the related discussion in the final 

EIS. 63 N.R.C. 687, 700 (2006). Those points are irrelevant 

to the statutory question here, however, because the agency 

still “prepared” an EIS before the hearing was completed, 
10 

which is all that this provision of the Atomic Energy Act 

requires.1

 

B 

We next address petitioners’ claim that the NRC’s NEPA 

review was deficient. 

Judicial review of an environmental impact statement 

ensures that the agency “has adequately considered and 

disclosed the environmental impact of its actions and that its 

decision is not arbitrary or capricious.” Baltimore Gas & 

Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98 

(1983). A court reviewing an EIS considers whether an 

“agency took a ‘hard look’ at the environmental consequences 

of its decision to go forward with the project.” Cmtys. 

Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 685 

(D.C. Cir. 2004) (internal quotation marks omitted). We bear 

in mind, of course, “that NEPA itself does not mandate 

particular results, but simply prescribes the necessary 

process.” Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 350 (1989). 

Petitioners argue that the NRC’s NEPA review was 

deficient because the NRC did not sufficiently analyze the 

impact of disposal of uranium waste from the enrichment 

facility. Petitioners are incorrect: The NRC thoroughly 

examined the environmental consequences of waste disposal. 

Multiple sections of the EIS discussed the waste that the 

enrichment facility would generate and the environmental 

impact of various waste disposal alternatives. See EIS 

 

1

 Petitioners have not argued that the NRC’s method of 

supplementing the EIS violated its regulations implementing 

NEPA. See 10 C.F.R. § 51.92. 
11 

Excerpts, Joint Appendix (“J.A.”) 1907-11 (discussing 

“Waste-Management Options” for the facility and “Disposal 

Options” for waste); J.A. 1907 (outlining “near-surface 

emplacement” alternatives). The EIS described potential 

private- and public-sector disposal facilities that are licensed 

to accept various types of low-level waste; it described 

different scenarios for converting and transporting the waste; 

and it analyzed the environmental effects of the various 

options. In addition to the EIS document, the Licensing 

Board and the NRC subsequently developed an exhaustive 

record as they considered petitioners’ environmental 

contentions and supplemented the EIS. Among other things, 

the NRC further analyzed the “long-term effects from 

disposing of depleted uranium,” concluding that the potential 

environmental effects of disposal at one proposed disposal 

site in Utah “appear to be small,” and describing various 

alternative disposal options. 63 N.R.C. 687, 690, 700 

(2006).2

In short, the record makes clear that the NRC thoroughly 

considered the environmental issues surrounding uranium 

waste disposal. The agency plainly met its NEPA obligation 

to take a “hard look” at the environmental consequences of 

approving the license. 

IV 

Petitioners strenuously argue that the NRC erred in 

approving the license because, in petitioners’ view, LES 

failed to present a reasonable cost estimate for disposing of 

radioactive waste from the facility. 

 

2

 Contrary to petitioners’ claims, NRC staff independently analyzed 

the characteristics of the “reference site” in Utah and the potential 

effects of storing the facility’s waste there. 63 N.R.C. 687, 693 

(2006). 
12 

A license applicant need not present a “concrete plan” to 

dispose of waste generated by a proposed uranium enrichment 

facility. In re La. Energy Servs., L.P., 34 N.R.C. 332, 337 

(1991). Rather, an applicant must present “a plausible 

strategy for the disposition of depleted uranium” waste. Id.

(emphasis added).3

 An applicant also must present a 

reasonable estimate of the costs of disposal and give adequate 

assurance it can pay those costs. 42 U.S.C. § 2243(d)(2); 10 

C.F.R. § 70.25(a), (e). 

The NRC granted the license here based on LES’s 

“public-sector strategy,” in which the Department of Energy 

would take title to and dispose of the facility’s waste.4

 

Petitioners do not challenge the plausibility of giving the 

waste to the Department of Energy; they acknowledge that 

the Department is legally required to take title to the waste at 

LES’s request, with LES bearing the disposal costs. See 42 

U.S.C. § 2297h-11(a)(1), (2). Instead, petitioners contend 

that LES’s cost estimate for waste disposal understates the 

likely costs. 

LES’s cost estimate started with the Department of 

Energy’s estimate of the cost of waste disposal. To guard 

against unforeseen costs, LES then added a 25-percent 

contingency factor on top of the Department’s estimate. 

Petitioners contend, however, that LES should have used a 

contingency factor far greater than 25 percent because of the 

 

3

 Petitioners accept the “plausible strategy” requirement as the 

governing standard for disposition of depleted uranium waste. 

4

 The bulk of petitioners’ objections in this Court are to the privatesector strategy. We need not consider those arguments, however, 

because the NRC approved the license based solely on the publicsector strategy. See 10 C.F.R. § 70.25(a) (requiring only one plan 

to pay disposal and other costs). 
13 

Department’s alleged history of underestimating costs on 

other projects. 

To be sure, cost overruns are not uncommon for this kind 

of massive project. See GOV’T ACCOUNTABILITY OFFICE,

DEPARTMENT OF ENERGY: MAJOR CONSTRUCTION PROJECTS 

NEED A CONSISTENT APPROACH FOR ASSESSING TECHNOLOGY 

READINESS TO HELP AVOID COST INCREASES AND DELAYS 9 

(2007) (cost of “many” Department projects has 

“significantly exceeded original estimates”). The NRC found 

petitioners’ evidence on this point unpersuasive, however, 

because it concerned only the Department of Energy’s “cost 

overruns on unrelated prior projects.” 64 N.R.C. 37, 46 n.38 

(2006). The NRC explained that it has previously rejected 

such past-misbehavior arguments unless parties show a 

“‘direct and obvious relationship between the character issues 

and the licensing action in dispute.’” Id. (quoting In re 

Dominion Nuclear Conn., Inc., 54 N.R.C. 349, 365 (2001)). 

Petitioners present no basis for us to upset the NRC’s 

conclusion that this particular estimate, with the 25-percent 

contingency included, was reasonable.5

At oral argument, petitioners expressed particular 

concern with the cost estimate for the public-sector strategy 

because it was based on “near-surface disposal” of the 

facility’s waste relatively near the surface of the earth – as 

opposed to “deep disposal” hundreds or thousands of feet 

underground. Petitioners contend that deep disposal will be 

 

5

 Petitioners also have asked for a Licensing Board hearing on 

whether the 25-percent contingency factor was sufficient. The 

NRC examined petitioners’ challenge on the merits, however, and 

reasonably determined that the 25-percent contingency factor was 

sufficient and that evidence of overruns on other Department of 

Energy projects did not merit further Licensing Board proceedings.
14 

necessary because of the nature of the waste the facility will 

generate; that deep disposal will cost significantly more than 

near-surface disposal; and that LES will not have the funds to 

pay for the higher costs of deep disposal. This is a weighty 

argument, and we assume the NRC legally could have 

required LES to demonstrate it could pay for deep disposal. 

But the NRC instead required only a showing that LES could 

pay for near-surface disposal; the NRC concluded that nearsurface disposal of the waste from this facility is permissible 

under current federal regulations. As a reviewing court, our 

role here is necessarily limited: We are not authorized to 

micromanage the NRC’s licensure proceeding, or to secondguess its acceptance of reasonable cost estimates. We 

examine only whether the NRC reasonably concluded that 

LES presented a plausible strategy for waste disposal and a 

reasonable cost estimate to accompany that strategy – the 

plausible strategy being disposal by the Department of 

Energy, and the cost estimate including a 25-percent 

contingency above the Department’s estimate for the costs of 

near-surface disposal. We have no basis on this record, 

particularly given our deferential review, to disturb the 

NRC’s determination that LES’s cost estimate based on nearsurface disposal was reasonable. 

V 

Finally, petitioners contend that NRC Commissioner 

McGaffigan (who has since passed away) should have 

disqualified himself from considering the license application. 

Petitioners moved to disqualify Commissioner McGaffigan 

because, in an unrelated proceeding, he stated that the 

Nuclear Information and Resource Service had used “factoids 

or made-up facts or irrelevant facts” to support its positions, 

and that one of its expert witnesses was a “person who 

doesn’t know anything about radiation.” Motion at 2-3, J.A. 
15 

1167-68. In that same proceeding, Commissioner 

McGaffigan characterized the group as the “Nuclear 

Disinformation Resource Service.” Id. at 3, J.A. 1168. 

Petitioners argue that the licensure decision should be vacated 

so that the proceeding can be conducted anew by an impartial 

panel. We review Commissioner McGaffigan’s denial of 

petitioners’ disqualification motion for abuse of discretion. 

Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154, 

1164 (D.C. Cir. 1995). 

Given the roles that agency officials must play in the 

give-and-take of sometimes rough-and-tumble policy debates, 

courts must tread lightly when presented with this kind of 

challenge. Administrative officers are presumed objective 

and “capable of judging a particular controversy fairly on the 

basis of its own circumstances.” United States v. Morgan, 

313 U.S. 409, 421 (1941). A party cannot overcome this 

presumption with a mere showing that an official “has taken a 

public position, or has expressed strong views, or holds an 

underlying philosophy with respect to an issue in dispute.” 

United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1208 

(D.C. Cir. 1981) (citing Hortonville Joint Sch. Dist. No. 1 v. 

Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976) and 

Morgan, 313 U.S. at 421). Instead, an agency official should 

be disqualified only where “a disinterested observer may 

conclude” that the official “has in some measure adjudged the 

facts as well as the law of a particular case in advance of 

hearing it.” Cinderella Career & Finishing Sch., Inc. v. FTC, 

425 F.2d 583, 591 (D.C. Cir. 1970) (internal quotation marks 

omitted); Metro. Council, 46 F.3d at 1164-65. 

Here, as the Commissioner noted, his “personal style” 

was to “speak vigorously, sometimes colorfully,” to “spark 

debate.” Decision on Motion at 3, J.A. 1311. Such 

comments, particularly when made in an entirely separate 
16 

proceeding, do not support the conclusion that Commissioner 

McGaffigan had “adjudged the facts as well as the law” 

regarding the particular license application at issue here. 

Commissioner McGaffigan did not abuse his discretion in 

denying petitioners’ motion. 

* * * 

We deny the petitions for review and uphold the NRC’s 

decision to grant the license.

So ordered.