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

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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). The requirement 1

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

The NRC considers a license renewal to be a major federal 1

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). At issue here is only one limited portion of 2

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),

In their analysis of alternatives, applicants may use 2

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).

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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

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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

Baseload power means that energy is produced at near full 3

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 twentyone 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

The first admitted contention, submitted by Friends of the 4

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. That representation 6

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

These included three safety-related contentions concerning 5

management of aging plant systems, structures, and components, and

a six-part contention on the severe accident mitigation analysis in

the environmental report.

BN's representative specifically stated "Well, I think that 6

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."

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petitioner must present "sufficient information to show that a

genuine dispute exists with the applicant/licensee on a material

issue of law or fact." See 10 C.F.R. § 2.309(f)(1)(vi). That 7

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:

This NRC standard differs from the summary judgment 7

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).

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- 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

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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 "outcomecontrolled 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

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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

Within this line of argument, BN also takes issue with the 8

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.

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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. It did so in compliance with the 9

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 AntiPollution League v. NRC, 598 F.2d 1221, 1228 (1st Cir. 1979)).10

The NRC's decision acknowledged that there may be some 9

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.

Contrary to BN's argument, other language in these cited 10

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.

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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. This aspect of the 11

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.

BN asserts that the NRC's reliance on Carolina Environmental 11

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. 

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§ 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.

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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. We go beyond that and also discuss the NRC's other fact- 12

based grounds as contained in the record. 

In its reply brief, BN asserts the NRC failed to consider 12

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.

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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, an illustrative chart, calls for the deployment of one 13

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. In fact, two of BN's own exhibits undercut its position. 15

BN argues that when the NRC stated that the exhibit refers 13

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.

Thus, we reject BN's argument that the NRC departed from its 14

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. 

In its reply brief, BN raises, for the first time, the 15

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

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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.

BN directs our attention to other portions of these exhibits 16

that set a target date of 2030 for 5 gigawatts of offshore wind

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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.

We need not and do not address BN's challenge to the NRC's 17

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.

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§ 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.

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