# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2021 Decided August 9, 2022

No. 20

- 1489

O GLALA S IOUX T RIBE AND A LIGNING FOR R ESPONSIBLE
M INING
, P ETITIONER S

v.

U.S. N UCLEAR R EGULATORY C OMMISSION AND U NITED S TATES OF A MERICA
, R ESPONDENTS

P OWERTECH (USA), I NC
., I NTERVENOR

On Petition for Review of Order s of the Nuclear Regulatory Commission

Jeffrey C. Parsons argued the cause for petitioners. With
him on the briefs were Roger Flynn and Travis Stills

.

James E. Adler , Senior Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With him on
the brief were Justin D. Heminger

, Attorney, U .S. Department of Justice, and Andrew P. Averbach , Solicitor, U.S. Nuclear Regulatory Commission.2

Christopher S. Pugsley argued the cause for intervenor

respondent Powertech (USA), Inc. With him on the brief was Anthony J. Thompson

.

Before: W ILKINS
, R AO
, and J ACKSON
, * Circuit Judges

.

Opinion for the Court filed by Circuit Judge R AO

.

R AO
, Circuit Judge : The Oglala Sioux Tribe and its non

profit association Aligning for Responsible Mining seek review of the Nuclear Regulatory Commission’s decision to grant Powertech (USA), Inc., a source material license to
extract uranium from ore beds in South Dakota. Th e Tribe maintains that the Commission failed to meet its obligations
under the National Environmental Policy Act and the N ational
Historic Preservation Act . We deny the Tribe’s petition
because the Commission adequately complied with the
relevant statutory and regulatory requirements.

I.

A.

Powertech sought to extract uranium from t he Dewey

Burdock area , which spans over 10,000 acres in South Dakota and sits atop aquifers laced with uranium

- rich ore beds. To remove the uranium, Powertech proposed using a pr ocess called “ in situ recovery , ” which involves pumping an aqueous solution i nto underground ore beds to dissolve uranium ; pumping the resulting solution back to the surface ; and separating out the uranium for later processing into nuclear
fuel. Powertech also planned to install monitoring wells to

* Circuit Judge , now Justice, Jackson was a member of the panel at the time the case was argued but did not participate in the opinion.3

ensure its operations did not adversely affect the surrounding water quality.

Before beginning this project, Powertech was required to
secure a license from the Commission. See 42 U.S .C. §§ 2014(z)(1), 2092 (prohibiting the transfer, delivery, or receipt of “source material” like uranium “after removal from its place of deposit in nature” without a license). The Commission’s licensing process implicates a series of intersecting statuto ry and regulatory requirements.

T he Atomic Energy Act of 1954 (“AEA”)

, Pub. L. No. 83

- 703, 68 Stat. 919 (codified as amended at 42 U.S.C. § 2011 et

seq. ), and its implementing regulations set forth the Commission’s procedures for licensing. W hen the Commis sion receives a license application

, it publishes a notice of the proposed action in the Federal Register. 10 C.F.R. § 2.105. If a party seeking to intervene in the process can show it would be impacted by the license and that there is at least one genuine and material dispute on a factual or legal issue, the Commission must grant the intervenor a hearing. 42 U.S.C. § 2239(a)(1)(A); 10 C.F.R. § 2.309(a), (d), (f)(1). The Commission may delegate these adjudicatory responsibilities to a three

- member Atomic
Sa fety and Licensing Board (“Licensing Board”), 42 U.S.C. §

2241 (a) ; 10 C.F.R. § 2.321, the decisions of which are reviewable by the Commission, 10 C.F.R. §§ 2.341, 2.1212.

T he Commission appointed a Licensing Board to adjudicate challenges to Powertech’s li cense , and the Tribe intervened in those proceedings

. The licensing process also requires the Commission to comply with the National Environmental Policy Act (“NEPA”)

, Pub. L. No. 91

- 190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. § 4321 et seq. )

. NEPA requires all federal agencies proposing a “major Federal action [] significantly affect ing the human environment ” to prepare “a4

detailed statement ” analyzing the impacts of that action. 42 U.S.C. § 4332(2)(C). This environmental impact statement (“EIS”) must discuss adverse impacts “which cannot be avoided,” “alternatives to the proposed action,” long

- and
short

- term eff ects, and “any irreversible and irretrievabl e commitments of resources” involved in the action. Id. ; see also 10 C.F.R. § 51.20(b)(8) (specifying an EIS is required when issuing a source material license for uranium extraction )

. T he
Commission must publish a notice of intent to prepare an EIS, and it must conduct an “appropriate scoping process” with those affected by the proposed action to determine the issues and impacts that will be analyzed in the EIS. 10 C.F.R. §§ 51.26(a), 51.27(a), 51.28, 51.29(a). In particular, the
Commission must invite “[a]ny affected Indian tribe” to participate in the scoping process, id. § 51.28(a)(5), and analyze “significant problems and objections raised by” those tribes in the EIS, id. § 51.71(b) ; see also id. § 51.90.

Powertech’s license also implicated Section 106 of the National Historic Preservation Act (“NHPA”) , which requires an agency, “prior to the issuance of any license, [to] take into account the effect of the undertaking on any historic property.” 54 U.S.C. § 306108 ; se e also NHPA, Pub. L. No. 89

- 665, § 106, 80 Stat. 915, 917 (1966) . “Historic property” is defined capaciously to include “any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Regi ster [of Historic Places]” or any “artifacts, records, and material remains relating” to such. 54
U.S.C

. § 300308. Before issuing a license, the Commission

must “consult with any Indian tribe

... that attaches religious and cultural significance to historic properties that may be affected” by the license, giving tribes a “reasonable opportunity” to identify concerns and help resolve any adverse effects. 36 C.F.R. § 800.2(c)(2)(ii). In light of the substantial overlap between the NHPA and NEPA inquir ies , an EI S5

“should include consideration of the

... likely effects on historic properties.” Id. § 800.8(a)(1); see also id. § 800.8(c) (allowing agencies to use the NEPA process in lieu of the normal Section 106 process).

B.

With respect to NEPA and NHPA compliance, the agency 1 had already prepared a “generic” EIS in 2009 to address the environmental impacts of in situ recovery methods within the broader region in which the Dewey

- Burdock Project is located

. T he agency was also required to create a supplemental EIS to address the specific impacts of Powertech’s project

. See 10
C.F.R. § § 51.20(b)(8), 51.92

. Only the supplement is at issue
in the Tribe’s petition

. The agency initiated the EIS process by
invit ing twenty tribes that could be affected by Powertech’s operations and requested assistance with identify ing cultural
and historical resources , including sites, objects, and other resources that carry cultural or religious significance. The Oglala Sioux Tribe was among those invited to participate.

By 2012, the agency and participating tribes settled on several preliminary conclusions. First, the tribes’ i nvolvement

was essential as they possessed an “intimate cultural knowledge” of the Dewey

- Burdock area and could identify “not only site

- specific physical impacts, but intangible impacts to the integrity of the area from cultural, historical, spiritual,
and religious perspectives.” S econd, it was necessary to survey

1 While these steps in the AEA, NEPA, and the NHPA have been delegated to various Commission staff, we refer to these actions as those of the agency or Commission because the Com mission is ultimately responsible for complying with statutory and regulatory requirements.6

the area to identify those impacts

. T he Oglala Sioux Tribe disagreed , however, with respect to the methods for survey ing the Dewey

- Burdock area. When negotiations over the survey broke down, the Commission issue d a draft EIS for public comment in late 2012 and explain ed it would later survey the area and supplement the EIS as necessary

. In 2013, t he Commission conduct ed a field survey of the Dewey

- Burdock area with seven participating tribes (“2013 Survey”) and received reports from three tribes identifying cultural resources and historic properties in the area . The Oglala Sioux Tribe refused to participate because it disapproved of the 2013 Survey’s methods and timing

, as well

as the amount o f compensation provided for participating. Using the reports from the other tribes , the Commission prepared and issued a final EIS in January 2014. A few months later, it issued Powertech a license and finalized a “programmatic agreement” that established a protocol for dealing with NHPA historic properties discovered after
Powertech beg i n s operating

. See 36 C.F.R. §§ 800.4(b)(2), 800.14(b) (permitting the Commission to create protocols to identify and protect historic properties after the issuance of a
lic ense).

C.

T he Tribe intervened before the Licensing Board assigned
to Powertech’s application and raised numerous challenges to
the application and the agency’s NEPA and NHPA process es

. T he Board found only some of the Tribe’s contentions merited a hearing

, and later found most of those claims meritless

. The
Board determined , however, that the license was issued without individually consult ing the Tribe as required by the NHPA and
without evaluati ng the Tribe’s cultural resources in the EIS as required by NEPA

. T he Commission affirmed the Board ’s finding of NEPA and NHPA violations but left the license in7

place because the Tribe had failed to show “irreparable harm.” 2

See O glala Sioux Tribe v. NRC ( Oglala Sioux I ), 896 F.3d 520

, 522

– 23 ( D.C. Cir. 2018) ; see also id. at 532

– 33 ( rejecting the
Commission ’s “irreparable harm” standard and remanding without vacatur of the license).

T he agency sought to remedy the NEPA and NHPA
deficiencies by meeting with the Tribe, teleconferencing, and
excha nging letters. E ventually, the agency offered to conduct another survey

. But t he Tribe maintained its objections, leading
the agency to abandon its efforts

, return to the Licensing Board

, and argue it had done enough to satisfy NEPA and the NHPA.
In its 20 17 decision, the Board partially agreed , finding the
Commission had reasonably consulted with the Tribe for NHPA purposes but still needed to work with the Tribe to identify cultural resources under NEPA

. By March 2018, the agency and the Tribe had not agreed to a specific survey method, but they had agreed to a n overall approach that involved a qualified contractor, other Lakota Sioux tribes, tribal elders, and iterative opportunities to survey the Dewey

- Burdock area (“March 2018 Approach”). In June,
ho wever, the Tribe switched course and proposed a different approach that would have cost over $2 million to execute

. The

agency rebuffed th e Tribe’s proposal and returned to the Board

, arguing NEPA was satisfied

. T he Board concluded that while
the March 2018 Approach was reasonable and no t negotiable going forward

, that Approach did not include a specific survey

2 Because agency proceedings were still pending

, we did not reach
the merits of the NEPA and NHPA determinations in Oglala Sioux

I

. See 896 F.3d at 527. On remand, the Commission left Powertech’s license in place, but required Powertech to report 60 days in advance of taking any action that would require a license to perform, avoiding any potential harm to the Tribe’s cultural resources.8

method

. Accordingly, the agency had to resume negotiations
with the Tribe to establish a survey method

.
T he agency and the Tribe unsuccessf ully attempted to
reach accord yet again

. In February 2019, the agency’s contractor proposed a survey method ology that included a
blend of scientific methods used in other tribe

- related surveys, software to accurately document site locations, oral intervie ws to supplement field observations, detailed steps to survey the area, and a synthesized report that would explain the results (“February 2019 Methodology”). The Tribe rejected that methodology and tried instead to re negotiate the March 2018

A pproach and raise NHPA issues already resolved by the
Board.

In its fifth and final decision, the Licensing Board
reaffirmed the reasonableness of the March 2018 A pproach and found that the February 2019 Methodology was reasonable as
well. E ven though the agency had not carried out its survey, the
Board also decided the agency had satisfied NEPA because the
Tribe’s intransigence made its cultural resource information, in effect, unavailable. The Board further reasoned that t here was
no need for the agency to amend the EIS to explain the unavailability of this information because the Board’s
administrative decision s had adequately supplemented th e EIS.
The Commission affirmed the Board’s decision s , and the Tribe petitioned this court for review.

II.

T he AEA confers jurisdiction to review the Commission’s
final orders under the familiar standards outlined in the Administrative Procedure Act (“APA”). See 42 U.S.C. § 2239(b)(1) ; see, e.g. , Massachuse tts v. NRC , 924 F.2d 311, 332 (D.C. Cir. 1991)

. Those standards also govern our review of the Tribe’s NEPA and NHPA challenges. See United9

Keetoowah Band of Cherokee Indians in Okla. v. FCC , 933 F.3d 728, 738 (D.C. Cir. 2019)

. We will therefore set aside t he Commission’s determinations if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with” the AEA, NEPA, or the NHPA. See 5 U.S.C. § 706(2)(A). Under
th ese standard s , we do not supplant an agency’s “technical judgments and pred ictions” so long as the agency’s decision is
“reasoned and rational.” Blue Ridge Env’t Def. League v. NRC

, 716 F.3d 183, 195 (D.C. Cir. 2013) (cleaned up).

I II.

T he Tribe maintains that the Commission failed to comply
with NEPA ’s requirements. NEPA is a purely procedural statute that “does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley
Citizens Council , 490 U.S. 332 , 350 (1989). Agencies may decide that “other values outweigh the environmental cost s ” and may move forward with a proposed action so long as they undergo the necessary process. Id. Our role is “simply to ensure that the agency has adequately considered an d disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Indian River Cnty

. v. U.S. Dep’t of Transp. , 945 F.3d 515, 527 (D.C. Cir. 2019) (cleaned up). We apply these standards to the Tribe’s arguments regar ding the
Commission’s failure to conduct a formal scoping of the project’s impact, and the adequacy of the EIS with respect to
the Tribe’s cultural resources, the hydrogeologic effects of the project

, the disposal of byproduct material, and mitigation

stra tegies.

A

. At the outset of the NEPA process, Commission regulations require the agency to conduct an “appropriate scoping” of a project’s environmental impact. 10 C.F.R.10

§ 51.26(a). Scoping allows the agency , among other things, to
define the proposed action by identifying significant issues and filtering out those that are peripheral. Id. § 51.29(a) (2)

– (3)

. T he

agency must also invite “[a]ny affected Indian Tribe” to participate in the scoping process and must share a summary of
its conclusion s with those who participated in the process. Id. §§ 51.28(a)(5), 51.29(b). It is undisputed that the agency never formally engaged in scoping nor provided a summary of its findings. The Board initially rejected the Tribe’s request for a hearing on scoping because it thought the agency’s supplemental EIS was exempt from that process

. T he
Commission disagreed but thought the Board’s error was harmless

— the Tribe had “not demonstrated harm or prejudice resulting from the lack of a separate, formal scoping process on
the site

- specific [ EIS ] .” 3

Before us, the Tribe renews th is scoping challenge

. W e need not decide the merits of th is claim, however, because even

as suming the Commission erred in omitting a formal scoping analysis, such error was harmless. Under the APA, courts take
“due account

... of the rule of prejudicial error” when reviewing agency action. 5 U.S.C. § 706 . We have applied th is
rule in the NEPA cont ext when the agency has undertaken the required analysis but “failed to comply precisely with NEPA procedures.” Nevada v. Dep’t of Energy , 457 F.3d 78, 90 (D.C.

3 In Oglala Sioux I , we dete rmined the Commission could not require a heightened showing of “irreparable harm,” but we left open
whether there was some “version of a harmless error rule that the Commission may apply.” 896 F.3d at 538. T he Tribe argues the Commission has no authority to make a harmlessness finding under
NEPA. Because we conclude the agency’s failure to conduct a formal scoping process was harmless error under the APA, we do not reach the question of whether the Commission has authority to
excuse violations of NEPA on s imilar grounds.11

Cir. 2006) ; see also Shinseki v. Sanders , 556 U.S. 396, 407 (2009) (explaining that harmless error review requires the
“case

- specific application of judgment, based upon examination of the record”). Here t he agency placed notices in local papers , received comments from those notices, and met
with various interested parties

— including triba l authorities

— to gather information on the Dewey

- Burdock Project before drafting an EIS . As the EIS explains, “[t]he purpose of these meetings was to gather additional site

- specific information to support the [Commission’s] environmental review.” Even if

t hese efforts did not precisely satis f y formal scoping requirements, the agency ’s efforts accomplished the same objective s , and the Tribe makes no argument that the failure impacted the project ’s actual scope

. See 10 C.F.R. § 51.29(a).

I n the context of thi s site

- specific EIS, there is no evidence that the absence of formal scoping affected the agency’s NEPA process or resulted in any prejudice to the Tribe . The Tribe’s petition cannot succeed on this ground

.
B

. The Tribe next argues the Commission failed to satisfy
NEPA because it did not adequately address the Tribe’s
cultural resources in the EIS. The parties do not question the
Tribe ’s outsized historical connection to the Dewey

- Burdock

area , and the importance of considering those r esources in

r eviewing Powertech’s application

. But the Commission
affirmed the Board’s finding that this information was effectively unavailable because of the Tribe’s intransigence

. This finding was made in published orders, but never incorporated into the EIS

.
NEPA requires agencies to take “a ‘ hard look ’ at ‘ every significant aspect of the environmental impact ’ of a proposed major federal action. ” Indian River Cnty

. , 945 F.3d at 533 (quoting Baltimore Gas & Elec. Co. v. NRDC

, 462 U.S. 87, 9712

(1983) ). A n agency does not necessarily violate NEPA

, however, when it is unable to acquire information relevant to its analysis. R egulations promulgated by the Council on Environmental Quality (“CEQ”) state that when important
information is “unavailable

, ” agencies can satisfy NEPA by expla i n ing in the EIS why the information was unavailable and
what actions the agency took to address that unavailability. 40 C.F.R. § 1502.22(b) (2020). 4

The Tribe asserts the Commission is bound by Section 1502.22’s requirement that an unavailability statement be within an EIS, but t he Commission has maintain ed that as a historically independent agency

, CEQ regulations are only

non

- binding guidance. We need not reach this thorny question 5

because even assuming the EIS failed to satisfy NEPA’s requirements as interpreted by CEQ , we have repeatedly held that remand is unnecessary if an agency has incorporat ed the required analysis into a publicly accessible decision before the EIS is challenged in federal court. NRDC v. NRC , 879 F. 3d 1202, 1211 (D.C. Cir. 2018)

. For example, when the Commission failed to adequately discuss aquifer restoration in an EIS

, we concluded that it was
sufficient for the Board to evaluate th at information during a subsequent hearing and present its findings in a publicly
accessible order

. Id. at 1209

– 1 1 . We explained the petitioners “ha[d] not pointed to any harmful consequence of the

4 This provision has since been re

- codified at Section 1502.21. See Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 43,366

– 67 (Jul. 16, 2020).

5 See , e.g. , Food & Water Watch v. U.S. Dep’t of Agriculture , 1 F.4th 1112, 1119 (D.C. Cir. 2021) (R andolph, J., concurring) (questioning CEQ’s authority to promulgate binding regulations).13

supplementation” in this manner

, and there was “nothing to be gained by remanding the matter to the Commission

... to consider the same information again.” Id. at 1210. Moreover,

“ c ommon sense counsel[ed] against prolonging this dispute by requiring an utterly pointless proceeding on remand .” Id. at
1212 ; se e also Friends of the River v. FERC ( FOTR )

, 720 F.2d 93, 106

– 0 8 (D.C. Cir. 1983) ( including the required analysis in

a publicly accessible opinion “composed after due investigation and before the matter was brought to court” made

r emand t o supplement the EIS “pointless” and an “insistence
on form” ).

For similar reasons

, even if we assume the EIS inadequately accounted for the unavailability of the Tribe ’s cultural resources, remanding for the agency to supplement the EIS is unnecessary because the Licensing Board’s decisions

, which were summarily affirmed by the Commission, satisfied any violation of NEPA

. The Board explained the Tribe’s
cultural resource information was relevant and that of the tribes affected, “[t]h e Oglala Sioux Tribe ha[d] shown it has the most direct historical, cultural, and religious ties to the area.” The
Board further explained the information was unavailable
because of “ the Tribe ’s demonstrated unwillingness or unjustifiable failure to work ” with the Commission

, with no
“reasonable assurance” of a future accord. Without the Tribe’s participation, its cultural resource information “would not
otherwise be obtainable” and thus was unavailable.

In short, the agency explained the unavailability of this
information and presented the substance of its findings in publicly accessible decisions after on

- the

- record hearings

. The Tribe does not dispute the reasonableness or accuracy of the
Board’s explanations but maintains only that they had to be
within the EIS

. In these circumstances, a remand for the agency14

to update its EIS and repeat the Board’s unchallenged findings would be “utterly pointless.” See NRDC , 879 F.3d at 1212.

T he Trib e contends that NRDC and FOTR do not apply because, in those cases, the agencies eventually conducted the required NEPA analysis, while here the Commission never conducted a survey for the Tribe’s cultural resources. Yet

r emand was unnecessary in those cases because the agency had
remedied the specific NEPA failure alleged by the petitioners.
NRDC , 879 F.3d at 1209

– 1 1 ; FOTR , 720 F.2d at 106. Similarly, t he Tribe alleged a failure to include an unavailability statement in the EIS , and that speci fic failure was
remedied by the Board’s publicly accessible orders , making remand unnecessary.

T he Tribe maintains in the alternative that some information about its cultural resources was available since the
Commission could have conducted oral interviews with tribal
members. But it is clear from the parties’ course of dealing that
oral interviews alone were never considered to be an a dequate means of gathering the required information . R ather

, the parties agreed that only the Tribe could accurately identify its cultural

resources and that a survey was necessary to adequately identify those resources. O ral interviews w ould then be used to supplement the Commission ’s understanding after a preliminary survey. Even the Tribe’s alternative proposal placed oral interviews after

, and supplement al to

, an initial survey. The EIS also suggested that oral interviews alone would not be sufficient based on an earlier study of the area
that found that “most of the tribal members interviewed knew their people had regular ceremonial, cultural, and religious activity in the Black Hills

... however, no one could pinpoint present cultural, ceremonial, or religious use in the proposed
area.” Similarly, i n affidavits tribal members averred general15

knowledge about cultural resources in the area but did not identify specific resources.

Given this course of dealing, t he Board determined that the survey and oral interviews were an integrated approach to
discover ing the Tr ibe’s cultural resource s and concluded that

, without a survey, the information was unavailable. T he Commission affirmed, explaining that oral interviews alone

“ would not have satisfied [the] criteria that the parties agreed would be necessary” to identify cultural resources. B ased on the record and the parties’ understanding, we cannot say the

agency committed a “clear error of judgment

. ” See Marsh v. Ore. Nat

. Res. Council , 490 U.S. 36 0

, 378 (1989)

.
T he Tribe also faults the Commission for not spending enough time or money on a survey and effectively forcing the
Tribe to subsidize it

. Yet t he Tribe cites no authority requiring
the agency to either compensate the Tribe for its participation

or to conduct a survey in a particular manner

. NEPA requires agencies to “utilize a systematic, interdisciplinary approach ” to identify and analyze environmental concerns, but agencies have leeway to choos e how to give “appropriate consideration”

to environmental concerns and “economic and technical

co nsiderations

. ” 42 U.S.C. § 4332(2)(A)

– (B) . That the agency exercised its discretion to use compensated surveys as a method of gathering cultural resources does not entitle the Tribe to demand more compensation or a different survey
method. Nor does the record support the Tribe’s assertion that
the Commission somehow “foist [ed] ” its NEPA obligations onto the Tribe and required the Tribe to subsidize the survey. Cf. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng ’ rs , 985 F.3d 1032, 1048 (D .C. Cir. 2021)

. It planned to expend
substantial resources on the survey and coordinated with Powertech to provide additional compensation for tribal members that participated in the survey

.16

The Tribe fails to make out a NEPA violation requiring
remand

, an d we find the Commission’s efforts to gather
cultural resources information w ere reasonable.

C

. The Tribe next faults the Commission ’s analysis of hydrogeologic data at the Dewey

- Burdock Project. First, the Tribe argues that the agency impermissibly delayed analyzing water quality baseline data because it allowed Powertech to gather data after the license was issued

. This deferral, the Tribe contends, violates NEPA by allowing the agency to “act first and comply later.” See Oglala Sioux I , 896 F.3d at 523. While
the agency and Powertech agreed to post

- licensing data collection, that fact alone does not show the pre

- licensing hydrogeological analysis was in sufficient

. It is certainly possible for an agency to adequately analyze hydrogeologic
data in an EIS a nd also c ontemplate further analysis during operations. Here, the EIS included meticulous analy sis of contaminant levels present in the area’s groundwater and set forth plans for restoring water quality using pre

- licen sing data

. B ecause water quality baselines cannot be “establish[ed] definitively

... until an in situ leach well field has been
installed

, ” it was not unreasonable for the agency to augment

pre

- licensing data with further testing after Powertech installed
it s well field but before it began operations

. See Hydro Res

. , Inc. , 63 N.R.C. 1, 6 (2006)

. The Tribe also argues the Commission failed to analyze
the impacts of preexisting bore holes in the Dewey

- Burdock
area and left these issues for after the license was granted

. We disagree. T he record demonstrates the Commission gave these impacts a hard look in the EIS : t he agency identifie d 4,000 previously drilled exploration boreholes in addition to the 115 drilled by Powertech, analyze d the imp act of those boreholes on vertical leakage, and outline d steps to mitigate those effects.17

I t was also entirely reasonable for the Commission to require
that Powertech f ix improperly plugged historic boreholes after receiving a license

.
A s to the hydrogeologic concerns raised by the Tribe, w e find t he agency “adequately considered and disclosed the environmental impact of its actions

. ” See Indian River Cnty.

, 945 F.3d at 527 (cleaned up)

.
D

. The Tribe also raises a series of arguments challenging the
Commission’s treatment of the disposal of byproduct material generated from uranium extraction

. On three separate occasions, the Tribe argued before the Licensing Board that
Powertech ’s application and the EIS inadequately addressed byproduct material . On each occasion the Board refused to hold a hearing on those contentions

, and t he Commission affirmed.

T he Tribe now argues the Board was required to hold a hearing
to address byproduct material because the issues presented a genuine legal dispute. See 10 C.F.R. § 2.309(f)(1) (vi)

. The Tribe first argues the agency erroneously issued Powertech a license even though its application lacked a site

specific disposal plan for byproduct material

. This argument is foreclosed by the plain text of the Commission’s regulations. Although some license applications must include a proposal for byproduct disposal, id. pt. 40 app. A , t his requirement d id not apply to Powertech’s application

. It applies only for “sites formerly associated with [uranium] milling.” Id. § 40.31(h) (emphasis added). As no one disputes the Dewey

- Burdock Project is a new uranium mining site, the Commission now
argues that Section 40.31(h) forecloses the Tribe’s argument.

Although the Commission’s interpretation of
Section 40.31(h) is plainly correct, this was not the reason the
Commission relied on below. In affirming the denial of a18

hearing, the Commission explained that the disposal plan requirement and surrounding regulations in Appendix A “are inapplicable to in situ recovery facilities

. ” 6 W e review an agency’s actions in light of the reasons offered at the time of the agency’s decision

, not its post hoc rationale offered in litigation. SEC v. Chenery Corp. , 332 U.S. 194, 196 (1947). Here, however, the meaning of the regulation is entirely clear and “there is not the slightest uncertainty as to the outcome of [the] proceeding on remand,” so we “can affirm

... on grounds other than those provided in the agency decision.” Envirocare of Utah , Inc. v. NRC , 194 F

. 3d 72, 79 (D.C. Cir. 1999) (cleaned up) ; see also Manin v. Nat’l Transp. Safety Bd. , 627 F.3d 1239, 1243 & n.1 (D.C. Cir. 2011) (noting this “limited exception” to
the Chenery principle )

. Affirmance in such cases “entails neither an improper judicial invasion of the administrative province nor a dispensation of the agency from its normal responsibility.” Envirocare

, 194 F.3d at 79 ( quoting Henry J. Friendly, Chenery Revisited: Reflections o n Reversal and Remand of Administrative Orders , 1969 D UKE L.J. 199, 211 )

. W hen an agency raises a purely legal argument for the first time
in litigation

, a court may consider that argument if it is both clearly correct and would render remand pointless und er the
harmless error standard. See 5 U.S.C. § 706

. T he Dewey

Burdock Project is indisputably not a former uranium milling site, and therefore a remand for the Commission to address this
issue would be pointless.

6 The Commission relied on Hydro Resources, Inc. , 50 N.R.C. 3, 8

– 9 (1999), to conclude that the relevant regulations apply only to traditional uranium mining, not in situ recovery operations. The Tribe waited until its reply brief to challenge the Commission’s reliance on this decision and thus forfeited its opportunity to contest this aspect of the Commission’s reasoning. See Lake Carriers’ Ass’n

v. EPA , 652 F.3d 1, 1 0 n.9 (D.C. Cir. 2011) (per curiam)

.19

The Tribe next argues “[t]he EIS does not contain [a] NEPA analysis of the disposal proposal, foreseeable impacts, alternatives, or mitigation measures” related to byproduct
material. 7 We disagree. In the EIS, the agency thoroughly analyze d solid byproduc t material by calculating the total byproduct accumulation of both Powertech’s preferred and alternative disposal methods; explaining the process for temporary storage and transfer to a licensed disposal facility; identifying White Mesa as the presumed dis posal facility and ensuring that facility has the capacity to accept Dewey

Burdock byproduct material ; acknowledging that White Mesa still needed state authorization to accept this material; determining that transportation impacts will be small regardless of which disposal site Powertech uses; explaining
the low risks and logistics of transporting byproduct material
to White Mesa in accordance with Department of Transportation regula t ions; and mitigating any potential risk of improper storage by requiring P owertech to acquire and maintain a disposal contract before beginning operations. This analysis more than adequately satisfies NEPA’s “hard look” requirement and undercuts the Tribe’s claim s that the agency failed to address byproduct material in the EIS

.
T he Tribe also maintains the EIS did not include an analysis of the impact s of Powertech failing to secure a disposal

contract before beginning operations

. NEPA requires an analysis of only those impacts reasonably likely to occur, not impacts that are hypothetical. See Indian River Cnty. , 945 F.3d at 533 (“NEPA

... requires that an agency take a ‘hard look’ at the reasonably foreseeable impacts of a proposed m ajor federal action.”) (cleaned up). Yet any impacts related to Powertech’s

7 The Commission argues that the Tribe failed to raise these arguments below, but the record demonstrates otherwise.20

failure to secure a disposal contract are purely hypothetical
because the condition s placed on Powertech’s license prohibit initiating operations without first securing a disposal contract

. Without a disposal contract

, there will be no operations, no byproducts, and no related environmental impacts. Accordingly, analysis on this issue was not required.

We are also not persuaded by the Tribe’s concerns that the
EIS did not include an analysis of the impact of stranded byproduct material at the Dewey

- Burdock Project should the disposal contract fall through after operations have begun

. The
Tribe relies on N ew York v. NRC

, in which we found the
Commission ran afoul of NEPA by failing to “explain the environmental effects of a failure to secure a permanent facility” for spent nuclear fuel

. 681 F.3d 471 , 479 (D.C. Cir. 2012). But the facts of that case are easily distinguishable as “there [was] not even a prospective site for a [disposal] repository, let alone progress toward the actual construction of
one.” Id. at 474. By contrast, the Commission identified the likely disposal site for Powertech ’s byproduct material, and the Tribe only speculates, with no record support, that Powertech would be unable to secure a replacement disposal contract if

necessary.
Because none of the Tribe’s arguments related to byproduct material raise s a genuine dispute of law, the agency was not required to hold an evidentiary hearing to addres s them

.
E

. The Tribe’s final NEPA challenge s concern the adequacy of the mitigation analysis in the EIS

. Discussing mitigation measures is an important aspect of an EIS because NEPA requires agencies to “discuss the extent to which adverse
effects can be a voided” in “sufficient detail to ensure that21

environmental consequences have been fairly evaluated.”
Robertson , 490 U.S. at 3 5 2. Fairly evaluating mitigating strategies does not, however, require an agency to have “actually formulated and adopted

... a fully developed plan that will mitigate harm before an agency can act.” Id. at 35 2

– 53. L ike other aspects of an agency’s NEPA analysis, mitigation efforts must be “ adequately consider ed. ” See Indian River Cnty. , 94 5 F.3d at 527. An agency cannot simply leave mitigation measures as “ TBD,” relying on “anticipated

- but

unidentified” measures without further analysis

. Am. Rivers v.
FERC , 895 F.3d 32, 54 (D.C. Cir. 2018). The Commission easily satisfied its obligation her e.

The Tribe faults the agency for simply listing mitigation measures without discussing th eir efficacy. T he mitigation analysis in the EIS , however, was not limited to the list referenced by the Tribe

. A s the Board and Commission pointed

out in their decision s , the Tribe had “completely overlooked ” other portions of the EIS, “ which contained extensive analysis of mitigation measures” relating to issues such as “wildlife protection, wellfield testing, air impacts, and historical well hole plugging and abandonment.” Nonetheless, in its petition for review, the Tribe continues to ignore the comprehensive discussion of mitigation throughout the EIS and instead focuses only on the EIS ’s summary list of mitigation measures

. The Tribe fails to engage with the agency’s actual mitigation analysis

, and from our review of the record

, the agency more than satisfied NEPA’s “hard look” requirement

. We also disagree with the Tribe that the EIS improperly
defer red a mitigation analysis of cultural and historic resource s, groundwater quality, air impacts, waste disposal , wildlife protection, and storm water control until after Powertech
obtain ed its license. For each of the Tribe’s identified issues

, the EIS extensively analyze d both impacts and mitigation22

measures. Ignoring these analyses, the Tribe relies on obscure transcript quotes, letters, and responses to draft EIS comments

. But these excerpts do not suggest that the agency deferred its NEPA mitigation analys i s on any of t he identified topics. Many of these excerpts even cross

- reference the substantive sections
of the EIS discussing relevant mitigation measures

. More to the point, an agency does not run afoul of NEPA when it adequately analyz es mitigation measures and then provides
that it will conti n ue to develop those plans after publishing an EIS. And where, as here, the agency careful ly analyzes environmental impacts and ways to reduce or avoid those impacts, additional efforts to mitigate impacts in the future
would see m to further the purposes of NEPA, rather than to constitute a procedural violation.

* * *

In sum , the Tribe fails to demonstrate any NEPA deficiencies that require setting aside the Commission’s
decision s

.
IV

. The Tribe raises a series of challenges under the NHPA

, but these do no t merit remand because the Commission satisfied its statutory obligations

. First, the Tribe argues the agency did not adequately
consult with the Tribe

. NHPA regulations require t he agency to g ive the Tribe a “reasonable opportunity” to identify historic properties, to express concerns regarding those properties, and

to participate in the resolution of those concerns . 36 C.F.R. § 800.2(c)(2)(ii) (A) . The Commission invited the Tribe’s participation in the 2013 Survey and engaged with the Tribe

over a two

- year period as described above

. The Tribe’s refusal to participate in the 2013 S urvey and its challenges to the agency’s methodolog y do not vitiate the reasonable23

o pportunity the Tribe was, in fact, afforded. The Commission satisfied its consultation obligations under the NHPA.

Second, t he Tribe maintains the agency impermissibly failed to survey the Dewey

- Burdock area for the Tribe’s historic properties. NHPA regul ations permit an agency to conduct a survey as part of its efforts to identify historic properties, but agencies are free to use a survey or some other method to gather information. See id. § 800.4(b)(1) (agency’s
identification efforts “ may include

... [a] field survey”) (emphasis added). An agency may therefore satisfy its NHPA obligations without conducting a survey or conducting it in a specific way.

Finally, the Tribe suggests the agency impermissibly postponed identifying historic proper ties until after Powertech had begun operations. NHPA regulations , however, expressly contemplate this approach . The Commission can employ a phased identification and evaluation of historic properties through a programmatic agreement “[w]hen effects on his toric properties cannot be fully determined prior to approval of an undertaking.” Id. § 800.14(b)(1)(ii); see also id. § 800.4(b)(2).

T he agency here recognized that some tribal historic properties
could be identified only after Powertech broke ground and therefore sought to create a process whereby newly discovered properties could be protected and evaluated for listing on the
National Register of Historic Places . The Commission reasonably satisfied its obligations under the NHPA’s regulatory scheme.

* * *

For the foregoing reasons, w e deny the Tribe’s petition for
review

. So ordered.