United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2021 Decided August 9, 2022

No. 20-1489

OGLALA SIOUX TRIBE AND ALIGNING FOR RESPONSIBLE 

MINING,

PETITIONERS

v.

U.S. NUCLEAR REGULATORY COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

POWERTECH (USA), INC.,

INTERVENOR

On Petition for Review of Orders

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 intervenorrespondent Powertech (USA), Inc. With him on the brief was 

Anthony J. Thompson.

Before: WILKINS, RAO, and JACKSON,

*Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: The Oglala Sioux Tribe and its nonprofit 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. The Tribe 

maintains that the Commission failed to meet its obligations 

under the National Environmental Policy Act and the National 

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 the DeweyBurdock 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 process 

called “in situ recovery,” which involves pumping an aqueous 

solution into 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 statutory and regulatory requirements.

The 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. When the Commission 

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 

Safety 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. 

The Commission appointed a Licensing Board to adjudicate 

challenges to Powertech’s license, 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 affecting the human environment” to prepare “a 
4

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 effects, and “any irreversible and irretrievable 

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). The 

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; see 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 Register [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 inquiries, an EIS 
5

“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 agency1

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.

The 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

inviting twenty tribes that could be affected by Powertech’s 

operations and requested assistance with identifying 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’ involvement 

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.” Second, 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 Commission is 

ultimately responsible for complying with statutory and regulatory 

requirements.
6

the area to identify those impacts. The Oglala Sioux Tribe 

disagreed, however, with respect to the methods for surveying

the Dewey-Burdock area. When negotiations over the survey 

broke down, the Commission issued a draft EIS for public 

comment in late 2012 and explained it would later survey the 

area and supplement the EIS as necessary.

In 2013, the Commission conducted 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 of 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 begins 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 

license).

C.

The 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 processes. 

The 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 consulting the Tribe as required by the NHPA and 

without evaluating the Tribe’s cultural resources in the EIS as 

required by NEPA. The Commission affirmed the Board’s 

finding of NEPA and NHPA violations but left the license in 
7

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

See Oglala 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).

The agency sought to remedy the NEPA and NHPA 

deficiencies by meeting with the Tribe, teleconferencing, and 

exchanging letters. Eventually, the agency offered to conduct 

another survey. But the 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 2017 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 an 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, 

however, the Tribe switched course and proposed a different 

approach that would have cost over $2 million to execute. The 

agency rebuffed the Tribe’s proposal and returned to the Board, 

arguing NEPA was satisfied. The Board concluded that while 

the March 2018 Approach was reasonable and not 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.

The agency and the Tribe unsuccessfully attempted to 

reach accord yet again. In February 2019, the agency’s

contractor proposed a survey methodology that included a 

blend of scientific methods used in other tribe-related surveys, 

software to accurately document site locations, oral interviews 

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 renegotiate the March 2018 

Approach 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 Approach and 

found that the February 2019 Methodology was reasonable as 

well. Even 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 there was 

no need for the agency to amend the EIS to explain the 

unavailability of this information because the Board’s

administrative decisions had adequately supplemented the EIS. 

The Commission affirmed the Board’s decisions, and the Tribe 

petitioned this court for review. 

II.

The 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., Massachusetts 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 United 
9

Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 

F.3d 728, 738 (D.C. Cir. 2019). We will therefore set aside the 

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 

these standards, we do not supplant an agency’s “technical 

judgments and predictions” 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). 

III.

The 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 costs” 

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 and 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 regarding 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 

strategies. 

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). The 

agency must also invite “[a]ny affected Indian Tribe” to 

participate in the scoping process and must share a summary of 

its conclusions 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. The 

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 this scoping challenge. We 

need not decide the merits of this claim, however, because even 

assuming 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 this

rule in the NEPA context 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 determined 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. The 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 similar 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 the agency placed notices in 

local papers, received comments from those notices, and met 

with various interested parties—including tribal 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 

these efforts did not precisely satisfy formal scoping 

requirements, the agency’s efforts accomplished the same 

objectives, and the Tribe makes no argument that the failure 

impacted the project’s actual scope. See 10 C.F.R. § 51.29(a). 

In the context of this 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 resources in 

reviewing 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, 97 
12

(1983)). An agency does not necessarily violate NEPA, 

however, when it is unable to acquire information relevant to 

its analysis. Regulations promulgated by the Council on 

Environmental Quality (“CEQ”) state that when important 

information is “unavailable,” agencies can satisfy NEPA by 

explaining 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 the Commission has maintained that as a 

historically independent agency, CEQ regulations are only 

non-binding guidance. We need not reach this thorny question5

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 incorporated 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 that information during a 

subsequent hearing and present its findings in a publicly 

accessible order. Id. at 1209–11. 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) (Randolph, 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, 

“common sense counsel[ed] against prolonging this dispute by 

requiring an utterly pointless proceeding on remand.” Id. at 

1212; see also Friends of the River v. FERC (FOTR), 720 F.2d 

93, 106–08 (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

remand to 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]he 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 agency
14

to update its EIS and repeat the Board’s unchallenged findings 

would be “utterly pointless.” See NRDC, 879 F.3d at 1212.

The Tribe 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

remand was unnecessary in those cases because the agency had 

remedied the specific NEPA failure alleged by the petitioners. 

NRDC, 879 F.3d at 1209–11; FOTR, 720 F.2d at 106. 

Similarly, the Tribe alleged a failure to include an 

unavailability statement in the EIS, and that specific failure was 

remedied by the Board’s publicly accessible orders, making 

remand unnecessary.

The 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 adequate

means of gathering the required information. Rather, the parties 

agreed that only the Tribe could accurately identify its cultural 

resources and that a survey was necessary to adequately 

identify those resources. Oral interviews would then be used to 

supplement the Commission’s understanding after a 

preliminary survey. Even the Tribe’s alternative proposal 

placed oral interviews after, and supplemental 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, in affidavits tribal members averred general
15

knowledge about cultural resources in the area but did not 

identify specific resources.

Given this course of dealing, the Board determined that the 

survey and oral interviews were an integrated approach to 

discovering the Tribe’s cultural resources and concluded that,

without a survey, the information was unavailable. The 

Commission affirmed, explaining that oral interviews alone 

“would not have satisfied [the] criteria that the parties agreed 

would be necessary” to identify cultural resources. Based 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. 360, 378 (1989).

The Tribe also faults the Commission for not spending 

enough time or money on a survey and effectively forcing the 

Tribe to subsidize it. Yet the 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 choose how to give “appropriate consideration” 

to environmental concerns and “economic and technical 

considerations.” 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, and we find the Commission’s efforts to gather

cultural resources information were 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 insufficient. It is certainly 

possible for an agency to adequately analyze hydrogeologic 

data in an EIS and also contemplate further analysis during 

operations. Here, the EIS included meticulous analysis of

contaminant levels present in the area’s groundwater and set 

forth plans for restoring water quality using pre-licensing data.

Because 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 

its 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 boreholes in the Dewey-Burdock 

area and left these issues for after the license was granted. We 

disagree. The record demonstrates the Commission gave these 

impacts a hard look in the EIS: the agency identified 4,000 

previously drilled exploration boreholes in addition to the 115 

drilled by Powertech, analyzed the impact of those boreholes 

on vertical leakage, and outlined steps to mitigate those effects. 
17

It was also entirely reasonable for the Commission to require 

that Powertech fix improperly plugged historic boreholes after 

receiving a license.

As to the hydrogeologic concerns raised by the Tribe, we 

find the 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 the Commission affirmed.

The 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 sitespecific 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, this requirement did 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 a 
18

hearing, the Commission explained that the disposal plan 

requirement and surrounding regulations in Appendix A “are 

inapplicable to in situ recovery facilities.”6 We 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 on Reversal and 

Remand of Administrative Orders, 1969 DUKE L.J. 199, 211).

When 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 under the 

harmless error standard. See 5 U.S.C. § 706. The DeweyBurdock 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, 10 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 

analyzed solid byproduct 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 disposal facility and 

ensuring that facility has the capacity to accept DeweyBurdock 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 regulations; and mitigating any potential risk of 

improper storage by requiring Powertech 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 claims that the agency 

failed to address byproduct material in the EIS.

The Tribe also maintains the EIS did not include an 

analysis of the impacts 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 major 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 conditions 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 New 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 raises a genuine dispute of law, the agency 

was not required to hold an evidentiary hearing to address 

them.

E.

The Tribe’s final NEPA challenges 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 avoided” in “sufficient detail to ensure that 
21

environmental consequences have been fairly evaluated.” 

Robertson, 490 U.S. at 352. 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 352–

53. Like other aspects of an agency’s NEPA analysis, 

mitigation efforts must be “adequately considered.” See Indian 

River Cnty., 945 F.3d at 527. An agency cannot simply leave

mitigation measures as “TBD,” relying on “anticipated-butunidentified” measures without further analysis. Am. Rivers v. 

FERC, 895 F.3d 32, 54 (D.C. Cir. 2018). The Commission 

easily satisfied its obligation here.

The Tribe faults the agency for simply listing mitigation 

measures without discussing their efficacy. The mitigation 

analysis in the EIS, however, was not limited to the list

referenced by the Tribe. As the Board and Commission pointed 

out in their decisions, 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 

deferred a mitigation analysis of cultural and historic resources, 

groundwater quality, air impacts, waste disposal, wildlife 

protection, and storm water control until after Powertech 

obtained its license. For each of the Tribe’s identified issues, 

the EIS extensively analyzed both impacts and mitigation 
22

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 analysis on any of the 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 analyzes mitigation measures and then provides 

that it will continue to develop those plans after publishing an 

EIS. And where, as here, the agency carefully analyzes 

environmental impacts and ways to reduce or avoid those 

impacts, additional efforts to mitigate impacts in the future 

would seem 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 

decisions.

IV.

The Tribe raises a series of challenges under the NHPA, 

but these do not 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 the agency

to give 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 Survey and its challenges to the 

agency’s methodology do not vitiate the reasonable 
23

opportunity the Tribe was, in fact, afforded. The Commission 

satisfied its consultation obligations under the NHPA. 

Second, the Tribe maintains the agency impermissibly 

failed to survey the Dewey-Burdock area for the Tribe’s 

historic properties. NHPA regulations 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 properties 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 historic 

properties cannot be fully determined prior to approval of an 

undertaking.” Id. § 800.14(b)(1)(ii); see also id. § 800.4(b)(2). 

The 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, we deny the Tribe’s petition for 

review. 

So ordered.