Beyond Nuclear v. U.S. Nuclear Regulatory Commission

United States Court of Appeals
For the First Circuit
No. 12-1561
BEYOND NUCLEAR, Paul Gunter, Director of Reactor Oversight
Project; NEW HAMPSHIRE SIERRA CLUB, Kurt Ehrenberg, Field
Organizer; SEACOAST ANTI-POLLUTION LEAGUE, Doug Bogen,
Executive Director,
Petitioners,
v.
U.S. NUCLEAR REGULATORY COMMISSION,
Respondent,
NEXTERA ENERGY SEABROOK, LLC; TAUNTON MUNICIPAL LIGHTING PLANT;
MA MUNICIPAL WHOLESALE ELECTRIC COMPANY;
HUDSON LIGHT & POWER DEPARTMENT,
Interested Parties, Intervenors.
PETITION FOR REVIEW FROM THE
UNITED STATES NUCLEAR REGULATORY COMMISSION
Before
Lynch, Chief Judge,
Boudin,* Circuit Judge,
and Woodlock,** District Judge.
*
Judge Boudin heard oral argument in this matter, and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
**
of the District of Massachusetts, sitting by designation.
Terry J. Lodge, for petitioners.
Jeremy M. Suttenberg, Attorney, Office of the General Counsel,
U.S. Nuclear Regulatory Commission, with whom Ignacia S. Moreno,
Assistant Attorney General, J. David Gunter II, Attorney, Appellate
Section, Environmental and Natural Resource Division, U.S.
Department of Justice, Marian L. Zobler, Acting General Counsel,
and John F. Cordes, Jr., Solicitor, were on brief, for respondent.
David R. Lewis, with whom Robert B. Ross, Pillsbury Winthrop
Shaw Pittman LLP, Mitchell S. Ross, and Steven C. Hamrick were on
brief, for intervenor NextEra Energy Seabrook, LLC.
Nicholas J. Scobbo, Jr., and Ferriter Scobbo & Rodophele, PC,
on brief, for intervenors MA Municipal Wholesale Electric Company,
Taunton Municipal Lighting Plant, and Hudson Light & Power
Department.
January 4, 2013
-2-
LYNCH, Chief Judge. NextEra Energy Seabrook, LLC,
operates the Seabrook, New Hampshire, Unit 1 nuclear power plant,
which provides a significant portion of the baseload electric power
used in New England. NextEra applied on May 25, 2010, to renew the
Seabrook operating license, which will otherwise expire on March
15, 2030. See 42 U.S.C. § 2133 (permitting renewal of operating
licenses). Renewal is allowed up to twenty years in advance. See
10 C.F.R. § 54.31(b). With its application, NextEra submitted an
environmental report, as required by 10 C.F.R. § 51.53(c). That
report discussed the feasibility of alternative sources of electric
energy.
As part of that licensing process, the Nuclear Regulatory
Commission ("NRC"), on March 8, 2012, issued a decision denying the
admission of a contention by Beyond Nuclear, the New Hampshire
Sierra Club, and the Seacoast Anti-Pollution League (collectively
"BN"), which questioned and sought a hearing on the conclusion in
the environmental report by NextEra that offshore wind electric
generation was not a reasonable alternative to the extended
licensing of Seabrook. In doing so, the NRC reversed the Atomic
Safety and Licensing Board's ("ASLB") admission of that contention.
The NRC's denial of admission of a contention here means that it
ruled petitioners were not entitled to have a hearing on the merits
about their contention that generation of electricity from offshore
-3-
wind was a reasonable alternative source of baseload energy to the
relicensing of Seabrook.
On petition for review, BN advances two primary
challenges to the NRC's decision. First, it argues that in
formulating its contention-admissibility standard the NRC
misapplied case law interpreting the National Environmental Policy
Act ("NEPA"), 42 U.S.C. § 4321 et seq. Second, it argues that when
the NRC applied its contention-admissibility standard to the facts,
its conclusion that the contention was inadmissible was arbitrary,
capricious, an abuse of discretion, or not otherwise in accordance
with the law. Neither argument is persuasive, and for the reasons
set forth below, we deny BN's petition for review.
I.
We give a brief description of the regulatory scheme
governing the process for renewal of nuclear power plant operating
licenses. The NRC must comply with obligations under two separate
statutes, the Atomic Energy Act ("AEA"), 42 U.S.C. § 2011 et seq.,
and NEPA. Accordingly, it has two distinct sets of regulations
containing requirements for license applicants. Massachusetts v.
United States, 522 F.3d 115, 119 (1st Cir. 2008). The AEA
addresses protection of public health and safety and provides the
statutory basis for renewing licenses, designating the NRC to make
the decision and to issue applicable rules and regulations. 42
U.S.C. §§ 2133, 2134(b); see Massachusetts, 522 F.3d at 119.
-4-
Initial licenses are valid for up to forty years and may be
renewed. Id. § 2133(c). Under NRC regulations, a licensee may
apply for a license renewal up to twenty years before expiration
and the renewed license may be issued for a fixed time of no more
than twenty years in excess of the current operating license. 10
C.F.R. § 54.31.
To fulfill the agency's obligations under NEPA, the NRC
has promulgated a different set of regulations, codified at 10
C.F.R. Part 51. See 10 C.F.R. § 51.10. NEPA requires agencies to
study and document the environmental impacts and alternatives to
proposed "major Federal actions significantly affecting the quality
of the human environment." 42 U.S.C. § 4332(C).1 The requirement
serves two purposes. First, "it places upon an agency the
obligation to consider every significant aspect of the
environmental impact of a proposed action." Balt. Gas & Elec. Co.
v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (quoting
Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 553 (1978)) (internal quotation marks omitted).
"Second, it ensures that the agency will inform the public that it
has indeed considered environmental concerns in its decisionmaking
process." Id. (citing Weinberger v. Catholic Action of Haw. Peace
1
The NRC considers a license renewal to be a major federal
action significantly affecting the quality of the human environment
and so requires its staff to prepare an environmental impact
statement for such an action. 10 C.F.R. § 51.20(b)(2); id.§ 51.95(c).
-5-
Educ. Project, 454 U.S. 139, 143 (1981)). The NRC requires
applicants for relicensing, here, NextEra, to submit an
environmental report to assist it. 10 C.F.R. § 51.53(c)(1). The
NRC must take a "hard look" at the environmental impacts of major
actions. Massachusetts, 522 F.3d at 127.
The environmental report must include consideration of
alternative sources of energy generation to the relicensing, 10
C.F.R. § 51.45(b)(3), and must discuss their environmental impacts,
id. § 51.53(c)(2).2 At issue here is only one limited portion of
the environmental report filed with the application on May 25,
2010, by NextEra.
The AEA also imposes a requirement that the NRC "shall
grant a hearing upon the request of any person whose interest may
be affected by the proceeding," such as a license renewal. 42
U.S.C. § 2239(a)(1)(A). Although NEPA does not provide for
hearings on environmental matters, Union of Concerned Scientists v.
NRC, 920 F.2d 50, 56 (D.C. Cir. 1990), NRC regulations provide for
hearings, including as to NEPA issues. To obtain a hearing, a
petitioner must make a written request under 10 C.F.R. § 2.309(a),
2
In their analysis of alternatives, applicants may use
information from the NRC's Generic Environmental Impact Statement
("GEIS") including discussion of the reasonableness of
alternatives. Final Rule, Environmental Review for Renewal of
Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467,
28,471-73 (June 5, 1996). That is not directly involved here
because alternative energy sources must be further evaluated in
individual licensing proceedings. Id. at 28,471-73; see 10 C.F.R.
§ 51.53(c)(2).
-6-
which must state the contention to be raised, id. § 2.309(f). On
issues arising under NEPA, contentions must be based on the
applicant's environmental report. Id. § 2.309(f)(2). To be
admissible a contention must:
(i) Provide a specific statement of the issue
of law or fact to be raised or controverted
. . . ;
(ii) Provide a brief explanation of the basis
for the contention;
(iii) Demonstrate that the issue raised in the
contention is within the scope of the
proceeding;
(iv) Demonstrate that the issue raised in the
contention is material to the findings the NRC
must make to support the action that is
involved in the proceeding;
(v) Provide a concise statement of the alleged
facts or expert opinions which support the
requestor's/petitioner's position on the issue
. . . together with references to specific
sources and documents on which the
requestor/petitioner intends to rely . . . ;
(vi) Provide sufficient information to show
that a genuine dispute exists with the
applicant/licensee on a material issue of law
or fact . . . .
Id. § 2.309(f)(1). In other words, the NRC denies hearings when
the party's criticism of a portion of the applicant's environmental
report does not meet the requirements of the regulations as to the
admission of a contention. The NRC found that BN's attack on the
wind power analysis portion of NextEra's environmental report
failed to meet the standards for being an admissible contention and
so denied a hearing on this point.
-7-
II.
We next address the relevant facts. Seabrook is New
England's largest nuclear reactor, having a capacity of 1245
megawatts, and provides 8.2% of the actual generation of the
Independent System Operator New England ("ISO-NE"), which the
environmental report explains "is a regional network that
coordinates the movement of wholesale electricity in all or parts
of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
and Vermont."
A. NextEra's Environmental Report
NextEra's environmental report, among other things,
addressed four alternative sources of energy to renewing Seabrook's
license that it deemed viable, reasonable alternatives: natural
gas-fired generation; coal-fired generation; a new nuclear plant;
and power purchases.
The report also discussed wind power, of which NextEra is
the leading generator in North America, but concluded it was not a
reasonable alternative as a source of baseload electricity during
the relevant period of time. It is on that point that petitioners
sought a full hearing before the Commission.
The environmental report stated that "[f]or the purposes
of this environmental report, alternative generating technologies
were evaluated to identify candidate technologies that would be
capable of replacing Seabrook Station's nominal net base-load
-8-
capacity of 1,245 MWe," and that it "accounted for the fact that
Seabrook Station is a base-load generator and that any feasible
alternative to Seabrook Station would also need to be able to
generate base-load power." Thus, any reasonable alternative would
need to generate baseload power.3
NextEra's report relied on the NRC's GEIS for the
proposition that wind power is not suitable for baseload generation
because of its intermittent nature. That intermittent nature meant
that there had to be energy storage mechanisms. Energy storage
mechanisms are too expensive to resolve the problem of
intermittency and the technology for the generation of offshore
wind energy is "not sufficiently demonstrated at this time."
The NRC published a notice in the Federal Register
providing an opportunity for all interested parties to file
contentions. See Notice of Acceptance for Docketing of the
Application and Notice of Opportunity for Hearing Regarding Renewal
of Facility Operating License No. NPF-86 for an Additional 20-Year
3
Baseload power means that energy is produced at near full
capacity, with high availability. Envtl. Law & Policy Ctr. v. NRC,
470 F.3d 676, 679 (7th Cir. 2006). Baseload generating sources,
such as nuclear plants, have a 90-97% capacity factor, which is the
ratio of electrical energy produced by a generating unit for a
period of time to the electrical energy that could have been
produced at continuous, full power operations during the same time.
Alliance to Protect Nantucket Sound, Inc. v. Dep't of Pub. Utils.,
959 N.E.2d 413, 426 n.25 (Mass. 2011). According to the
environmental report, wind power has a capacity factor of 20-40%,
an assertion not challenged by petitioners.
-9-
Period; NextEra Energy Seabrook, LLC; Seabrook Station, Unit 1, 75
Fed. Reg. 42,462 (July 21, 2010).
BN filed a hearing petition on October 20, 2010,
proposing its one contention and focusing on the potential
production of baseload power through either storing wind-produced
power or interconnected offshore wind farms. BN attached twenty-
one exhibits, including news articles, government reports, and
academic articles, which it said supported its contention.
We provide some useful context. BN was not the only
entity to file a hearing petition. The NRC has admitted two
contentions challenging other aspects of the environmental report
and will hold hearings on those contentions.4
B. ASLB Ruling on BN's Wind Power Contention
The NRC "appoints [ASLBs] to conduct public hearings and
to make intermediate or final decisions in administrative
proceedings" relating to licensing decisions. Johnston v. NRC, 766
F.2d 1182, 1183 (7th Cir. 1985). A Board consists of three
members, one of whom is qualified in the conduct of administrative
proceedings and two of whom have technical or other qualifications
4
The first admitted contention, submitted by Friends of the
Coast and the New England Coalition ("Friends/NEC") contends that
the severe accident mitigation analysis in the report minimizes or
underestimates the potential amount of radioactive release in a
severe accident. The second admitted contention, also filed by
Friends/NEC, contends that the report's severe accident mitigation
analysis used an improper atmospheric dispersion model that
underestimated the area likely to be affected by a severe accident.
-10-
the NRC deems appropriate. 42 U.S.C. § 2241(a). ASLBs now preside
over most licensing hearings. Citizens Awareness Network, Inc. v.
United States, 391 F.3d 338, 357 n.6 (1st Cir. 2004) (Lipez, J.,
concurring). Here, the NRC appointed an ASLB and the ASLB heard
arguments on BN's contention, as well as on contentions filed by
other groups.5
The Board determined that BN's contention was admissible,
limiting its scope solely to offshore wind, and specifically citing
to representations made orally by a BN representative at a hearing.
The representations were that an exhibit, Ex. 17, University of
Maine, "Maine Offshore Wind Plan," establishes that offshore wind
farms would deliver baseload energy by 2015.6 That representation
proved to be untrue.
C. NRC Rejection of BN's Contention
NextEra appealed the Board's decision to the Commission,
which unanimously reversed the admission. The NRC will reverse the
ASLB based on an error of law or abuse of discretion. S.C. Elec.
& Gas Co. & S.C. Pub. Serv. Auth., 72 N.R.C. 197, 200 (2010). The
NRC correctly stated the standard for admission -- that a
5
These included three safety-related contentions concerning
management of aging plant systems, structures, and components, and
a six-part contention on the severe accident mitigation analysis in
the environmental report.
6
BN's representative specifically stated "Well, I think that
we have established by our exhibit from the University of Maine
that -- I think if the Board looks at it, that they are delivering
baseload by 2015."
-11-
petitioner must present "sufficient information to show that a
genuine dispute exists with the applicant/licensee on a material
issue of law or fact."7 See 10 C.F.R. § 2.309(f)(1)(vi). That
meant NextEra's environmental report only needed to consider (1)
baseload-power alternatives, not non-baseload alternatives, and (2)
only such alternatives "likely to exist" during the renewal period.
The Commission explained that, because of the difficulty inherent
in predicting the viability of technologies decades in advance, in
most cases reasonable alternatives are those that are "currently
commercially viable, or will become so in the relatively near
term."
As a result:
[T]o submit an admissible contention on energy
alternatives in a license renewal proceeding,
a petitioner ordinarily must provide 'alleged
facts or expert opinion' sufficient to raise a
genuine dispute as to whether the best
information available today suggests that
commercially viable alternate technology (or
combination of technologies) is available now,
or will become so in the near future, to
supply baseload power.
Applying that standard, the Commission concluded the Board erred in
admitting the contention for four reasons:
7
This NRC standard differs from the summary judgment
standard. See Gulf States Util. Co., 40 N.R.C. 43, 51 (1994). The
NRC imposed the requirement to make the admission of contentions
more difficult after Congress called for changes because of delays
caused by poorly defined and poorly supported contentions. See
Dominion Nuclear Conn., Inc., 54 N.R.C. 349, 358 (2001).
-12-
- there was no challenge by BN to the fact
that storing wind power is too costly to be
commercially viable;
- the data submitted by BN did not demonstrate
that offshore wind farms would provide timely
and feasible baseload power;
- BN's own exhibits stated that the lack of
"requisite technology is an obvious barrier to
establishment of the deep-water wind industry
in Maine or elsewhere in the near term," and
that essential infrastructure for
installation, transmission, and maintenance
does not yet exist; and
- the Board had supplied a basis for BN's
contention that BN did not itself make, that
interconnected offshore wind farms could
constitute a single, discrete energy source,
but this error was deemed harmless.
III.
A. NEPA and the NRC's Admissibility Standard
A major argument advanced in BN's briefing is that the
NRC misused or misapplied NEPA case law in its decision. The
argument is wrong.
First, NEPA does not, by its own terms or its intent,
alter the Commission's hearing procedures, including the
requirement that a petitioner provide sufficient information to
show a genuine dispute on a material issue of law or fact. 10
C.F.R. § 2.309(f)(1)(vi). The Supreme Court has been clear that
"the only procedural requirements imposed by NEPA are those stated
in the plain language of the Act." Vt. Yankee, 435 U.S. at 548.
NEPA does not mandate particular hearing procedures, Balt. Gas &
Elec. Co., 462 U.S. at 100-01, and does not require hearings, Union
of Concerned Scientists, 920 F.2d at 56. "As a result, NEPA does
-13-
not alter the procedures agencies may employ in conducting public
hearings." Id.Further, the NEPA requirements are procedural in nature
and do not mandate particular results or specific standards. See
United States v. Coal. for Buzzards Bay, 644 F.3d 26, 31 (1st Cir.
2011). Rather, NEPA requires an agency to take a "hard look" at
environmental consequences. Id. at 31.
BN suggests that by requiring an alternative energy
source to provide baseload power, the NRC defined the objectives of
the proposed actions so narrowly that it engaged in "outcome-
controlled rigging." See Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) (stating agency cannot
make objectives so narrow that outcome is a "foreordained
formality").
That is not the case, for reasons both of law and common
sense. NEPA requires only consideration of reasonable
alternatives. See, e.g., Natural Res. Def. Council, Inc. v.
Morton, 458 F.2d 827, 837 (D.C. Cir. 1972). That means "the
concept of alternatives must be bounded by some notion of
feasibility," Vt. Yankee, 435 U.S. at 551, which includes
alternatives that are "technically and economically practical or
feasible," Theodore Roosevelt Conservation P'ship v. Salazar, 661
F.3d 66, 69 (D.C. Cir. 2011) (quoting 43 C.F.R. § 46.420(b))
(internal quotation marks omitted). Moreover, an agency need only
-14-
consider alternatives that will "bring about the ends" of the
proposed action, Busey, 938 F.2d at 195, and where the agency is
not itself the project's sponsor, "consideration of alternatives
may accord substantial weight to the preferences of the applicant,"
City of Grapevine v. Dep't of Transp., 17 F.3d 1502, 1506 (D.C.
Cir. 1994) (quoting Busey, 938 F.2d at 197-98) (internal quotation
mark omitted).
NextEra operates a baseload power generator at Seabrook,
and despite BN's "outcome-controlled rigging" argument, BN's own
brief concedes it was "permissible" for the NRC to consider the
goal of providing baseload electrical power. Thus, BN does not
challenge the NRC's decision, in considering the feasibility of an
alternative energy source, to focus on whether such an alternative
source could supply baseload power. Cf. Envtl. Law & Policy Ctr.
v. NRC, 470 F.3d 676, 684 (7th Cir. 2006) (upholding baseload
generation as appropriate goal).
BN then attempts an argument that the NRC was required to
consider what alternatives might look like in forty years time.8
Not so. Here again the NRC has taken a sensible course. The NRC
8
Within this line of argument, BN also takes issue with the
NRC's citation to Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st
Cir. 2008), which the NRC cited for the proposition that an
environmental impact statement is not intended to be a "research
document." BN argues that petitioners are not calling for
additional research like the plaintiffs in Winthrop, but instead
handed over information to the Commission. This argument goes more
toward whether BN submitted sufficient information to raise a
genuine dispute, which is dealt with below.
-15-
stated that "[a]ssessments of future energy alternatives
necessarily are of a predictive nature," and that "the applicant --
and the agency -- are limited by the information that is reasonably
available in preparing the environmental review documents."
Because of the inherent difficulty in predicting decades in advance
the viability of technologies not currently operational and years
away from large-scale development, "in most cases a 'reasonable'
energy alternative is one that is currently commercially viable, or
will become so in the relatively near term."
The NRC acknowledged the need for prediction, and made a
rational decision that in most instances the best predictor of
viability of an alternative in the distant future is the near term
viability of the alternative.9 It did so in compliance with the
law. The duty under NEPA is to "study all alternatives that
'appear reasonable and appropriate for study at the time' of
drafting the EIS." Roosevelt Campobello Int'l Park Comm'n v. EPA,
684 F.2d 1041, 1047 (1st Cir. 1982) (quoting Seacoast Anti-
Pollution League v. NRC, 598 F.2d 1221, 1228 (1st Cir. 1979)).10
9
The NRC's decision acknowledged that there may be some
instances where there is evidence of "unusual predictive
reliability" to establish that an energy alternative not yet
operational and many years away from large-scale development is
likely to exist in the relevant future time period.
10
Contrary to BN's argument, other language in these cited
opinions that states agencies must consider "significant
alternatives," brought to their attention by the public, see, e.g.,
Campobello, 684 F.2d at 1047, does not require the granting of a
hearing simply because the public proposes some alternative.
-16-
Forecasting should be based on "existing technology and those
developments which can be extrapolated from it." Natural Res. Def.
Council, Inc. v. NRC, 547 F.2d 633, 639-40 (D.C. Cir. 1976), rev'd
on other grounds, Vt. Yankee, 435 U.S. 519.11 This aspect of the
NRC's framework does provide a "hard look" at alternatives.
Substantial deference is required when an agency adopts
reasonable interpretations of its own regulations, and we must
accept the agency's position unless it is "plainly erroneous or
inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452,
461 (1997) (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 359 (1989)) (internal quotation marks omitted).
Because the NRC's elaboration of its admissibility standard was
generally reasonable and consistent with both 10 C.F.R.
§ 2.309(f)(1)(vi) and NEPA, BN's challenge to the standard fails.
B. The NRC's Application of its Admissibility Standard to Facts
Our review is delimited by the Administrative Procedure
Act ("APA"), which authorizes the court to reverse the NRC's
decisions only if they are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C.
11
BN asserts that the NRC's reliance on Carolina Environmental
Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1975), which
the NRC cited for the proposition that it need not consider "remote
and speculative" alternatives, is misplaced. At its core, BN's
argument is that it presented information showing that offshore
wind is not remote or speculative, which is relevant to the NRC's
application of its standard, not the correctness of the standard.
-17-
§ 706(2)(A); Massachusetts, 522 F.3d at 126. Indeed, "[t]he [AEA]
is hallmarked by the amount of discretion granted the Commission in
working to achieve the statute's ends." Massachusetts v. NRC, 878
F.2d 1516, 1523 (1st Cir. 1989).
"An agency's decision is not arbitrary and capricious if
that decision was based on consideration of the relevant factors
and if it did not commit a clear error of judgment." Town of
Winthrop v. FAA, 535 F.3d 1, 8 (1st Cir. 2008). A decision fails
"if the agency relied on improper factors, failed to consider
pertinent aspects of the problem, offered a rationale contradicting
the evidence before it, or reached a conclusion so implausible that
it cannot be attributed to a difference of opinion or the
application of agency expertise." Associated Fisheries of Me.,
Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997).
BN sounds a theme which has no record support -- that the
NRC improperly made a determination as to the reasonableness of
offshore wind, at the admissibility stage, on the merits. To the
contrary, the NRC made it clear that it was not doing that, but
examining BN's submissions against the admissibility standard. It
stated that "[BN] has not provided support for its claim that
offshore wind is technically feasible and commercially viable . . .
and therefore has not submitted an admissible contention," and that
"[BN's] 'offshore wind' contention is not sustainable on its face
-18-
because it lacks a supporting basis," a result reached "without
improperly resolving disputed facts."
This theme by BN is a backdoor challenge to the decision
made by the NRC in 1989, at the prompting of Congress, to toughen
the standards for getting a hearing on contentions. See Rules of
Practice for Domestic Licensing Proceedings -- Procedural Changes
in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989)
(imposing requirement that to be admissible a contention must
provide "sufficient information . . . to show that a genuine
dispute exists"); see also 10 C.F.R. § 2.309(f)(1)(vi). Congress
was concerned and called for change because "[s]erious hearing
delays -- of months or years -- occurred, as licensing boards
admitted and then sifted through poorly defined or supported
contentions." Dominion Nuclear Conn., Inc., 54 N.R.C. 349, 358
(2000). So, the NRC adopted the new rules to "raise the threshold"
for admitting contentions. 54 Fed. Reg. at 33,168. "[M]aterials
cited as the basis for a contention are subject to scrutiny by the
board to determine whether they actually support the facts
alleged," Calvert Cliffs 3 Nuclear Project, LLC, 72 N.R.C. 720,
750 (2010); otherwise, the aims of the rules and of Congress would
be thwarted.
We hold that the NRC's decision to deny admissibility to
BN's contention constituted reasoned decisionmaking and was not
arbitrary or capricious. See Allentown Mack Sales & Servs., Inc.
-19-
v. NLRB, 522 U.S. 359, 374 (1998) (requiring agency adjudications
to be subject to requirement of reasoned decisionmaking). That
decision is reasonable because BN: (1) failed to even argue that
the baseload requirement was inappropriate; and (2) its exhibits
did not raise a genuine dispute as to the viability and feasibility
of offshore wind to meet baseload requirements by 2030.
First, BN's contention did not respond to the requirement
that a reasonable alternative must provide baseload power. BN did
not supply information to dispute NextEra's conclusion that energy
storage devices are too costly and baseload power generation by
wind power would require such devices. The relevant exhibit only
discussed storage potential, but not cost. Ex. 3, National
Renewable Energy Laboratory, "Creating Baseload Wind Power Systems
Using Advanced Compressed Air Energy Storage Concepts,"
(Oct. 2006). That failure by BN alone is fatal to their claim of
error.12 We go beyond that and also discuss the NRC's other fact-
based grounds as contained in the record.
12
In its reply brief, BN asserts the NRC failed to consider
certain other exhibits. The argument is both waived and also fails
on its merits. In its opening brief, BN either: (1) only mentioned
these exhibits in the facts; or (2) used them in an unrelated
portion of its argument. Thus, this argument is waived. See Waste
Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000).
These exhibits purportedly show that by interconnecting offshore
wind farms, one can, in theory, provide baseload power, and that
efforts are being made to make such interconnections a reality, but
they do not address current or near term feasibility or viability
of such technology as required by the NRC. Moreover, as discussed
below, BN failed to establish an admissible contention that
offshore wind farms, themselves, are or will be feasible or viable.
-20-
The exhibit relied upon by BN before the ASLB to support
their representation -- that wind power off Maine's coast would
provide baseload power by 2015 -- does not support BN's
representation. The exhibit does not make any suggestion about
baseload power, let alone in the 2015 time period. The one-page
exhibit,13 an illustrative chart, calls for the deployment of one
3-5 megawatt prototype turbine in 2012-2014 and five turbines
capable of producing 25 megawatts, combined, in 2014-2016, which
cannot provide baseload power, much less power on the scale of
Seabrook.14
Moreover, the NRC reasonably concluded that BN's exhibits
did not raise a genuine dispute as to the technical feasibility or
commercial viability of offshore wind farms in the relevant time
period.15 In fact, two of BN's own exhibits undercut its position.
13
BN argues that when the NRC stated that the exhibit refers
to a plan, not a statement of expectation, it arbitrarily imposed
a new, heightened standard. The NRC was pointing out that BN's
representative mischaracterized what the exhibit communicates. It
did not require a statement of expectation for the admissibility
standard to be met.
14
Thus, we reject BN's argument that the NRC departed from its
typical standard of review in reversing the ASLB. Although the NRC
reviews ASLB decisions for abuse of discretion, this deferential
standard of review does not prevent the NRC from reversing the
ASLB's decision to admit a contention when the NRC reasonably
concludes that the contention is unsupported by the record.
15
In its reply brief, BN raises, for the first time, the
argument that the Commission improperly required it to address the
commercial viability of offshore wind as a source of baseload
power. The argument was not raised in the opening brief and is
waived. Mowbray, 208 F.3d at 299. Further, NextEra's
-21-
A report of the Maine Energy Task Force to then-Governor Baldacci
stated that:
[T]echnologies that would enable the placement
of wind turbines on floating platforms or
other structures in greater depths needed to
tap the world-class deep-water wind resources
in Maine's coastal waters or in adjoining
federal waters are under development . . . .
Lack of the requisite technology is an obvious
barrier to establishment of the deep-water
wind industry in Maine or elsewhere in the
near term.
Ex. 14, "Final Report of the Ocean Energy Task Force to Governor
John E. Baldacci" (Dec. 2009) 27 (emphasis added).
Other evidence supports the NRC's conclusion. A 2010
predecisional draft report by the U.S. Department of Energy
submitted by BN also stated that: "significant challenges . . .
need to be overcome"; uncertainty exists as to potential project
power production and turbine and array designs; the implications of
adding large amounts of offshore wind generation to the power
system need to be better understood to know if it can be reliably
integrated; and the infrastructure needed to install, operate, and
maintain offshore wind farms cost-effectively does not currently
exist in the U.S. Ex. 15, U.S. Department of Energy, "Creating an
Offshore Wind Industry in the United States" (Sept. 2010) 7-10.16
environmental report concluded that offshore wind was not
technically proven, which logically leads to it not being
commercially viable.
16
BN directs our attention to other portions of these exhibits
that set a target date of 2030 for 5 gigawatts of offshore wind
-22-
BN argues that Exhibit 14 stated that shallow offshore
wind power is viable today (because of its use in Europe) and
points to Exhibit 11, European Wind Energy Association, "Oceans of
Opportunity," (Sept. 2009), discussing the growth of offshore wind
in Europe. As the NRC correctly noted, another of BN's exhibits,
Ex. 19, U.S. Department of Energy, "20% Wind Energy by 2030" (July
2008) 57, stated that such European shallow-water technology is too
expensive and too difficult to site in U.S. waters. And, both
exhibits are silent on the critical issue of baseload generation.17
The NRC's decision was not arbitrary or capricious and
there is no basis in law to set it aside.
IV.
If new information about the technical and economic
feasibility of offshore wind as a source of baseload power, which
differs materially from that which was available when the
contention at issue was filed, becomes available prior to
Seabrook's license renewal, NRC regulations would permit the filing
of a new contention, if timely submitted. 10 C.F.R.
power off the coast of Maine and 54 gigawatts nationwide. But
those same exhibits acknowledge that such goals are
"extraordinary," Ex. 14 at vii, and "ambitious," Ex. 15 at 10, and
BN ignores the contingent nature of those plans.
17
We need not and do not address BN's challenge to the NRC's
finding that the ASLB improperly provided a basis for BN's
contention that offshore wind could count as a single, discrete
source of energy. The NRC ruled such error was harmless because
alternatives do not need to be single, discrete sources, and it was
not the basis of the NRC's decision.
-23-
§ 2.309(c)(1)(i)-(iii). NRC's counsel confirmed that at oral
argument. See Massachusetts, 522 F.3d at 130 (NRC bound by
admissions to court). Of course, to be admitted, any newly filed
contention would still need to meet the admissibility requirements
in 10 C.F.R. § 2.309.
The petition for review is denied.
-24-