Commonwealth of Massachusetts v. US Nuclear Regulatory Commissi

United States Court of Appeals
For the First Circuit

Nos. 12-1404, 12-1772

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

v.

U.S. NUCLEAR REGULATORY COMMISSION; THE UNITED STATES OF AMERICA,

Respondents,

ENTERGY NUCLEAR OPERATIONS, INC.;
ENTERGY NUCLEAR GENERATION COMPANY,

Intervenors.

PETITIONS FOR REVIEW OF ORDERS OF THE
U.S. NUCLEAR REGULATORY COMMISSION

Before

Lynch, Chief Judge,
Torruella, Circuit Judge,
and DiClerico,* District Judge.

Matthew Brock, Assistant Attorney General, Office of the
Attorney General, Environmental Protection Division, with whom
Martha Coakley, Attorney General, was on brief, for petitioner.
James E. Adler, Attorney, Office of the General Counsel, U.S.
Nuclear Regulatory Commission, with whom Ignacia S. Moreno,
Assistant Attorney General, J. David Gutner II, Attorney, Appellate
Section, Environmental and Natural Resources Division, U.S.
Department of Justice, Marian L. Zobler, Acting General Counsel,

*
of the District of New Hampshire, sitting by designation.
John F. Cordes, Jr., Solicitor, and Lauren Woodall, Attorney,
Office of General Counsel, U.S. Nuclear Regulatory Commission, were
on brief, for respondents.
Kevin P. Martin, with whom Elise N. Zoli, Goodwin Procter LLP,
David R. Lewis, Paul A. Gaukler, Timothy J. V. Walsh, and Pillsbury
Winthrop Shaw Pittman LLP, were on brief, for intervenors Entergy
Nuclear Operations, Inc. and Entergy Nuclear Generation Company.

February 25, 2013

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 LYNCH, Chief Judge. The Commonwealth of Massachusetts

petitions for review from the Nuclear Regulatory Commission's

("NRC" or "Commission") March 8, 2012 order denying the

Commonwealth's petition for review of the Atomic Safety and

Licensing Board's ("ASLB") denial of Massachusetts's motion to

admit a new contention, and other related requests (12-1404). The

NRC rejected the Commonwealth's claims that the environmental

findings in the environmental impact statement ("EIS"), prepared

under the National Environmental Policy Act ("NEPA"), 42 U.S.C.

§ 4321 et seq., were inadequate in light of the damage to the

Fukushima Daiichi ("Fukushima") nuclear power plant in Japan in

March of 2011.1 The Commonwealth also petitions for review from

the NRC's May 25, 2012 vote to renew the license of the Pilgrim

Nuclear Power Station in Plymouth, Massachusetts, and the May 29,

2012 renewed license (12-1772).

The Commonwealth's substantive challenges to the NRC's

decisions are not based in any alleged failure on the part of the

NRC to ensure basic health and safety under the Atomic Energy Act

("AEA"), 42 U.S.C. § 2011, et seq. Rather, the Commonwealth argues

1
Entergy Nuclear Operations, Inc., and Entergy Nuclear
Generation Company (collectively, "Entergy"), the operators of
Pilgrim Nuclear Power Station, filed an application with the NRC on
January 25, 2006, to renew the plant's operating license, which was
set to expire on June 8, 2012, for an additional twenty years. 71
Fed. Reg. 15,222 (Mar. 27, 2006). Pilgrim has been operating since
1972. After the NRC issued its final EIS for Pilgrim in July of
2007, but before the renewed license was issued, the Great East
Japanese Earthquake occurred on March 11, 2011.

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that the Commission's failure to file supplemental analysis on the

environmental impacts of relicensing in light of purported new and

significant information learned from Fukushima violated its

obligations under NEPA and NRC regulations.

The claims made by Massachusetts to the NRC roughly fall

into three categories. The first two categories go to whether, in

light of Fukushima, the EIS was adequate in its environmental

assessments of: (1) spent fuel pool fires; and (2) core damage2

events. The third category questions whether the decision to

proceed with relicensing was contrary to law. The Commonwealth

also asserts that the NRC failed to sufficiently consider its own

Task Force's report that contained purportedly new and significant

information, or explain why it did not require supplementation of

the EIS, and Massachusetts claims that it was denied a hearing in

violation of the AEA.

Under the applicable standards of judicial review, we

deny the petition for review.

I.

The regulatory scheme governing this license renewal

falls under two statutes, the AEA and NEPA. NEPA and the right to

2
The term "core damage" refers to damage to the portion of
the nuclear reactor containing the nuclear fuel the plant uses to
create heat for electricity generation.

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a hearing under the AEA are at issue here. The AEA3 requires the

NRC to provide "adequate protection" for the health and safety of

the public, 42 U.S.C. § 2232(a), which the NRC seeks to ensure on

an ongoing basis through an "evolving set of requirements and

commitments for a specific plant that are modified as necessary

over the life of a plant to ensure continuation of an adequate

level of safety." 60 Fed. Reg. 22,461, 22,473 (May 8, 1995).4

Those safety provisions under the AEA are not at issue here. The

AEA also states that the NRC shall grant a hearing to a person

affected by a relicensing, 42 U.S.C. § 2239(a), but as we discuss

later, the NRC determined that the Commonwealth did not meet the

procedural requirements, and that decision was not arbitrary and

capricious.

3
The AEA is the NRC's organic statute, authorizing the NRC to
issue licenses to operate nuclear power plants for a period not to
exceed 40 years. 42 U.S.C. § 2133(c). The AEA also permits the
renewal of operating licenses, id., and delegates to the NRC the
authority to determine appropriate rules and regulations,
Massachusetts v. United States, 522 F.3d 115, 119 (1st Cir. 2008);
see also Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968) (AEA is
"a regulatory scheme which is virtually unique in the degree to
which broad responsibility is reposed in the administering agency,
free of close prescription in its charter as to how it shall
proceed in achieving the statutory objectives"); 10 C.F.R.
§ 54.31(b) (permitting renewal up to 20 years before expiration for
no more than 20 additional years beyond the current license's
expiration date).
4
At the license renewal stage, the NRC has decided to focus
its safety review on managing the aging of important plant
structures, components, and systems. See Massachusetts, 522 F.3d
at 119; 10 C.F.R. §§ 54.21, 54.29(a).

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 NEPA, by contrast, requires federal agencies to prepare

an EIS for major federal actions that would significantly affect

the quality of the human environment, including a discussion of

"the environmental impact of the proposed action," "any adverse

environmental effects which cannot be avoided should the proposed

action be implemented," and "alternatives to the proposed action."

42 U.S.C. § 4332(C)(i)-(iii). Relicensing requires the preparation

of an EIS. 10 C.F.R. §§ 51.20(b)(2) (requiring EIS for renewal),

51.95(c) (discussing what EIS must address).

NEPA's EIS 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 provides assurance that the agency will

inform the public that it has considered environmental concerns in

its decisionmaking process. Id. (citing Weinberger v. Catholic

Action of Haw./Peace Educ. Project, 454 U.S. 139, 143 (1981)). Put

differently, NEPA seeks to guarantee process, not specific

outcomes. Town of Winthrop v. FAA, 535 F.3d 1, 4 (1st Cir. 2008).

In short, NEPA requires the agency to take a "hard look" at the

environmental consequences of a major federal action. Balt. Gas &

Elec. Co., 462 U.S. at 97.

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 It is significant to this petition that the NRC assesses

environmental impacts through two different procedures. One, for

site-specific impacts, is done in the course of the individual

plant relicensing. The other, for impacts that are generic to all

plants of a particular type, is done through rulemaking rather than

individual licensing proceedings. The Commonwealth confuses the

two, and attempts to raise in the petition seeking review of the

relicensing issues which both belong in generic rulemaking, see

Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008)

(environmental impacts of spent fuel pools dealt with through

rulemaking), and are in fact being addressed in that rulemaking.

As to relicensing, the NRC requires an applicant to

submit an environmental report with its relicensing application.

10 C.F.R. § 51.53(c)(1). That was done here in 2006. The report

for a license renewal must analyze the environmental impacts of the

proposed action and include a severe accident mitigation

alternatives ("SAMA") analysis. Id. § 51.53(c)(3)(ii)(L). The

SAMA analysis, in the most basic sense, is a cost-benefit analysis

that addresses whether the expense of implementing a mitigation

measure not mandated by the NRC is outweighed by the expected

reduction in environmental cost it would provide in a core damage

event.5 See Duke Energy Corp., 56 N.R.C. 1, 7-8 (2002) ("Whether

5
Included as benefits are averted costs such as public
exposure, offsite property damage, occupational exposure costs,
cleanup and decontamination costs, and replacement power costs.

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a SAMA may be worthwhile to implement is based upon a cost-benefit

analysis -- a weighing of the cost to implement the SAMA with the

reduction in risks to public health, occupational health, offsite

and onsite property.").

As to the second mechanism for environmental impacts that

are not plant-specific, but instead apply to all like plants, the

Supreme Court has held that the NRC is permitted to make generic

determinations to meet its NEPA obligations. Balt. Gas & Elec.

Co., 462 U.S. at 101 (stating generic method is "clearly an

appropriate method of conducting the hard look required by NEPA").

The NRC has labeled these issues as "Category 1" issues and has

adopted generic EISs for them. See 10 C.F.R. pt. 51, subpt. A,

app. B (listing NEPA issues for license renewal and assigning them

Category 1 or 2 classification); 61 Fed. Reg. 28,467 (June 5, 1996)

(explaining generic EIS). Those environmental impacts need not be

included in an environmental report nor need they be considered on

a site-specific basis in the EIS. See 10 C.F.R. §§ 51.53(c)(3)(i)

(environmental report), 51.71(d) (EIS). These generic

determinations need not be addressed in individual proceedings. As

we held in an earlier case, the generic rulemaking includes the

subject of environmental impacts of spent fuel pools.

Massachusetts, 522 F.3d at 127.

Going back to these relicensing proceedings, in certain

instances where an EIS has been prepared, and the relicensing has

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not yet occurred, the emergence of new information will require

federal agencies to supplement an EIS. Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 372-73 (1989). Even so, to ensure that the

agency decisionmaking process is not delayed unnecessarily,

supplementation of the EIS is not required every time new

information arises. Id. at 373. Rather, a supplemental EIS only

need be prepared if there are "significant new circumstances or

information." Town of Winthrop, 535 F.3d at 7 (quoting 40 C.F.R.

§ 1502.9(c)(1)) (emphasis omitted); see also 10 C.F.R.

§ 51.92(a)(2) (requiring final EIS be supplemented with "new and

significant" information). That means new information must

"paint[] a dramatically different picture of impacts compared to

the description of impacts in the EIS." Town of Winthrop, 535 F.3d

at 12; see also Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th

Cir. 1984) (supplementation required where new information

"provides a seriously different picture of the environmental

landscape").

To obtain a hearing on this claim of new information,

requestors must meet certain requirements. In this case, two NRC

regulations are relevant. First, where the record has been closed,

a party must meet the record reopening standards to have its new

information considered in an adjudication. See 10 C.F.R.

§ 2.326(a)(1)-(3). The NRC's regulations impose three

requirements:

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 (1) The motion must be timely. However, an
exceptionally grave issue may be considered in
the discretion of the presiding officer even
if untimely presented;
(2) The motion must address a significant
safety or environmental issue; and
(3) The motion must demonstrate that a
materially different result would be or would
have been likely had the newly proffered
evidence been considered initially.

Id.

Second, the requestor seeking a formal hearing must also

meet the Commission's general contention admissibility standards.

The request for a hearing 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
and on which the petition intends to rely at
hearing, together with references to the
specific sources and documents on which the
requestor/petitioner intends to rely to
support its position on the issue;
(vi) In a proceeding other than one under 10
C.F.R. 52.103, 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)(i)-(vi).

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 II.

A. Proceedings Prior to Fukushima

As said, Entergy's relicensing application included an

environmental report containing a SAMA analysis. The analysis

included scenarios dealing with complete loss of offsite power,

various sorts of operator failures during core damage events, the

possibility of hydrogen build up in a core damage event leading to

an explosion, and the use of filtered vents.

The environmental report did not address the

environmental impacts of spent fuel pool accidents6 because the NRC

had adopted a generic EIS on that issue. Office of Nuclear

Regulatory Research, U.S. Nuclear Regulatory Comm'n, NUREG-1437, 1

Generic Environmental Impact Statement for License Renewal of

Nuclear Plants: Main Report (May 1996).7 This court rejected

Massachusetts's earlier challenge that this spent fuel pool issue

6
Spent fuel rods are a radioactive waste product of nuclear
power plants and are often stored in racks in water-filled storage
pools located at the plant. See Massachusetts, 522 F.3d at 122.
When Pilgrim was originally licensed in 1972, there was a national
policy of eventually disposing of the spent fuel through
reprocessing, but that policy was abandoned in the mid-1970s. Id.
Without reprocessing, and without a national repository, spent fuel
has accumulated at onsite storage facilities. Id.
7
The regulation in place stated that "[t]he expected increase
in the volume of spent fuel from an additional 20 years of
operation can be safely accommodated on site with small
environmental effects through dry or pool storage at all plants if
a permanent repository or monitored retrievable storage is not
available." Massachusetts, 522 F.3d at 121 n.4 (alteration in
original) (quoting 10 C.F.R. pt. 51, subpt. A, app. B).

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had to be heard in the relicensing rather than in rulemaking and

preserved for the Commonwealth its ability to present its arguments

in rulemaking after it had made the wrong choice as to which

vehicle was proper. Massachusetts, 522 F.3d at 127-33.8 The staff

issued a final EIS in July of 2007. Office of Nuclear Reactor

Regulation, U.S. Nuclear Regulatory Comm'n, NUREG-1437, Generic

Environmental Impact Statement for License Renewal of Nuclear

Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station (July

2007). Upon completing consideration of a contention filed by

Pilgrim Watch in the relicensing, the ASLB9 closed the record in

June of 2008. See Entergy Nuclear Generation Co., 68 N.R.C. 590,

595-97 & n.26 (2008). In March of 2010, the NRC partially reversed

an earlier ASLB decision and remanded one limited issue, regarding

a meteorological model used in the SAMA analysis, to the ASLB for

8
The NRC later denied that rulemaking petition because the
studies presented by Massachusetts did not constitute new and
significant information and the NRC's findings related to the
storage of spent nuclear fuel in pools remained valid. 73 Fed.
Reg. 46,204, 46,212 (Aug. 8, 2008). The Second Circuit upheld the
NRC's denial of the Commonwealth's petition for rulemaking. New
York v. NRC, 589 F.3d 551, 553-55 (2d Cir. 2009) (per curiam).
9
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 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).

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further hearing. Entergy Nuclear Generation Co., 71 N.R.C. 287

(2010).

B. Fukushima and the NRC Response

On March 11, 2011, before the ASLB had issued a decision

on the remanded issue, an earthquake and tsunami occurred off the

coast of Japan. The tsunami hit the Fukushima nuclear power plant

causing a blackout at five of the six units and resulting in core

damage at three of the units. Notably, however, virtually no

damage occurred to any of the spent fuel pools on site and there

were no spent fuel pool fires.

The NRC took action within days to respond to the grave

events at Fukushima, establishing a Task Force by a March 23, 2011

memorandum, and requiring the Task Force "to conduct a methodical

and systematic review of [the NRC's] processes and regulations to

determine whether the agency should make additional improvements to

[its] regulatory system and to make recommendations to the

Commission for its policy direction." The NRC also directed its

staff to complete a review and implement lessons learned by 2016.

On July 12, 2011, the Task Force issued its report,

making twelve overarching recommendations, including on emergency

preparedness and mitigation measures. The Task Force also made

clear that a sequence of events like that at Fukushima is unlikely

to occur in the United States and that "continued operation and

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continued licensing activities do not pose an imminent risk to

public health and safety."

On March 12, 2012, the NRC issued three orders

implementing certain Task Force recommendations. First, the NRC

ordered license holders to "develop, implement and maintain

guidance and strategies to restore or maintain core cooling,

containment, and [spent fuel pool] cooling capabilities in the

event of a beyond-design-basis external event." Second, the NRC

ordered all boiling water reactors with Mark I and Mark II

containments (including Pilgrim) to install hardened vents to

ensure proper venting of the structure. Third, the NRC required

"provisions for reliable spent fuel pool indications," because

during the Fukushima event "[t]he lack of information on the

condition of the spent fuel pools contributed to a poor

understanding of possible radiation releases and adversely impacted

effective prioritization of emergency response actions by decision

makers." Each applies to Pilgrim.

C. Massachusetts's Post-Fukushima Motion to the NRC to Admit
Contention

On June 2, 2011, slightly less than three months after

Fukushima, Massachusetts moved to admit a contention and to reopen

the Pilgrim record, arguing that Fukushima revealed new and

significant information that the environmental impact analysis and

SAMA analysis needed to address. The Commonwealth contended that

Fukushima showed: (1) the likelihood of spent fuel pool accidents

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was higher than estimated in the existing EIS;10 and (2) the

frequency of core-melt accidents was also higher than estimated in

the existing EIS, and relatedly, in light of new information on a

variety of matters concerning core damage events,11 certain

mitigation measures that the SAMA analysis ignored or rejected

might be cost-effective.12

Massachusetts also included a petition for waiver,

seeking to litigate the spent fuel pool accident issues in the

individual adjudication, 10 C.F.R. § 2.335(b), as opposed to

challenging it through rulemaking. In the alternative, if a waiver

was denied, Massachusetts requested that the NRC rescind the spent

fuel pool determinations through rulemaking, and that the

relicensing proceedings be suspended until that rulemaking request

was resolved.

10
Massachusetts's expert stated in his report that the loss
of water in an event could lead to a pool fire and that the
Fukushima incident "provide[d] direct experience of events that
could be precursors of pool fires."
11
These included operators' ability to mitigate an accident,
the effects of secrecy about mitigation measures, the risk of
hydrogen explosions during core damage events, and the use of
filtered venting.
12
Earlier in the relicensing proceeding, the agency had
considered some similar issues raised in a contention by a
different group, including the accuracy of the probabilistic risk
assessment's ("PRA") estimation of core damage frequency in the
SAMA analysis and the use of filtered vents, which were rejected by
the agency in an October 16, 2006 order.

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 The contention was accompanied by an expert report by Dr.

Gordon Thompson, a senior research scientist at Clark University.

Massachusetts moved, on August 11, 2011, to supplement its filing

with the released Task Force Report, which Massachusetts stated

"provide[d] further support for its contention." Massachusetts

filed a supplemental declaration from Dr. Thompson, which discussed

the reasons he felt the report supported his views in support of

the contention.

On November 28, 2011, the ASLB denied Massachusetts's

motion for a hearing, as well as the waiver motion, and the request

for a stay. The ASLB determined that: (1) the spent fuel concerns

were not unique to Pilgrim and so denied the waiver petition; and

(2) each portion of the contention concerning core damage events

failed to meet the agency's record reopening standards and/or its

general admissibility standards.13

The NRC affirmed14 the ASLB's decision on March 8, 2012.

On the spent fuel pool issues, the NRC denied the waiver petition,

referred the rulemaking petition to its staff, and denied the

request to suspend the proceedings pending resolution of that

13
One member of the Board concurred, agreeing that the
contention should be denied, but concluding that the contention was
premature, and Fukushima-related contentions should be allowed when
"relevant information becomes ripe for consideration."
14
The Chairman concurred in the majority's decision to deny
the waiver petition and suspension request, but dissented in the
majority's decision to apply the usual record reopening standards.

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petition. The NRC rejected the contention on all other issues. It

noted that Massachusetts had not provided sufficient information to

make a significant difference in the environmental review. The NRC

considered the core damage frequency claim and each of the related

claims that new information on core damage events might affect the

SAMA analysis, finding for many reasons that each aspect of the

contention either failed to meet the agency's reopening standards

or its admissibility standards. In particular, the NRC explained

that the failure to sufficiently link the Fukushima events to the

Pilgrim environmental analysis was the basic problem with the

contention.

On May 25, 2012, the majority of the NRC approved the

renewal of Pilgrim's operating license. The Chairman was the sole

dissenter, preferring to wait on making the licensing decision

until all issues before the agency were resolved. The other

Commissioners made no direct response, but two noted that if the

renewed license were set aside on judicial review, the previous

license would be reinstated pursuant to 10 C.F.R. § 54.31(c).

Massachusetts petitioned this court for review.

Massachusetts's primary arguments are that the NRC violated NEPA

and acted arbitrarily and capriciously by failing to take a hard

look at the lessons from Fukushima and by failing to require

supplementation of the EIS as to both the spent fuel pool and core

damage concerns before granting a renewed license. It also argues

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that, under NEPA, the NRC should have heard its rulemaking petition

and completed all the post-Fukushima review before granting the

license.

The record shows that the NRC gave a hard look to the

information Massachusetts presented to it, and it engaged in

reasoned decisionmaking in explaining why it refused to reopen the

record and why it denied the contention. The NRC did not need to

wait to grant the relicensing based on conjecture that additional

information might arise in the future. Indeed, the NRC gave

assurances that if such information did arise, and resulted in new

requirements, those requirements would, under its normal

procedures, be applied to Pilgrim.

III.

Because there is no apparent conflict between the NRC's

record reopening and general admissibility standards and NEPA's

standard for requiring supplementation of an EIS, we proceed to

determine if the NRC permissibly applied its procedural rules. We

start with the NRC's denial of the waiver of rulemaking petition on

the spent fuel pool issue. We then move on to the NRC's rejection

of the other portions of the contention. In doing so, we address

both the record reopening standards and the general admissibility

standards. We do so because the NRC relied on different provisions

in those distinct requirements in rejecting the various parts of

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the Commonwealth's contention.15 On some substantive issues the NRC

relied on both standards, and on other issues, rested on just a

provision in the reopening or the admissibility standards.

Therefore, we address both standards in order to fully deal with

the Commonwealth's challenge and the NRC's rejection of the entire

contention. For ease of organization, we address each substantive

issue separately, including the reopening and/or the admissibility

standards that are the basis for the rejection. Finally, we

consider the NRC's decision to proceed with licensing.

A. Standard of Review

Our review of NEPA claims is governed by the

Administrative Procedure Act, 5 U.S.C. § 501, et seq. ("APA"). See

Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir.

1996). The APA "authorizes this court to displace the [NRC's]

decisions only to the extent that they are 'arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.'"

Massachusetts, 522 F.3d at 126 (quoting 5 U.S.C. § 706(2)(A)).

Errors of law are reviewed de novo. Dubois, 102 F.3d at 1284.

An agency's decision is not arbitrary and capricious if

that decision was based on consideration of the relevant factors,

and if the agency did not commit a clear error of judgment. Town

15
For example, and as will be discussed more below, the NRC
rejected Massachusetts's "secrecy" argument regarding accident
mitigation measures only on the basis that it was outside the scope
of the proceedings, failing to meet one of the general
admissibility standards. 10 C.F.R. § 2.309(f)(1)(iii).

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of Winthrop, 535 F.3d at 8. 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). "This general posture of deference toward agency

decision-making is particularly marked with regards to NRC

actions," including relicensing, because of the amount of

discretion the AEA grants to the Commission. Massachusetts, 522

F.3d at 126.

Moreover, in "determining what constitutes significant

new information," a reviewing court "owes considerable deference"

to the agency's determination because "that is a factual question

requiring technical expertise." Town of Winthrop, 535 F.3d at 8.

Thus, "[c]onsiderable deference is owed to the [agency's]

determination of whether [a completed EIS] remains accurate,

adequate, and current." Id.

We also give substantial deference to an agency when it

adopts reasonable interpretations of its own regulations. Auer v.

Robbins, 519 U.S. 452, 461 (1997). "We must accept the agency's

position unless it is plainly erroneous or inconsistent with the

regulation." Massachusetts, 522 F.3d at 127 (quoting Auer, 519

U.S. at 461) (internal quotation marks omitted).

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 Still, our role is to ensure that the agency took a "hard

look" at the purportedly new information and determine whether its

decisions were arbitrary or capricious. Dubois, 102 F.3d at 1284.16

B. Denial of the Spent Fuel Pool Waiver Petition

One of Massachusetts's main claims before the NRC

concerned the risk of spent fuel pool accidents. That is a

Category 1 issue, addressed globally for all nuclear power plants,

10 C.F.R. pt. 51, subpt. A, app. B, through rulemaking, and that is

where the NRC is dealing with this issue. Further, NRC regulations

generally prohibit the challenging of such generic determinations

in individual adjudicatory proceedings, see 10 C.F.R. § 2.335(a),

but under certain specified conditions,17 the NRC will waive that

16
At times, Massachusetts's brief appears to make a weak
argument that the NRC's procedural rules (particularly its record
reopening standards) are incompatible with NEPA. However, in its
reply brief, Massachusetts disavows that and asserts it is only
arguing that the NRC "cannot unreasonably interpret or misapply its
contention admissibility standards."
17
One exception to the prohibition on a challenge in an
individual proceeding is for a party to seek a waiver under 10
C.F.R. § 2.335(b), which provides that "[t]he sole ground for
petition of waiver or exception is that special circumstances with
respect to the subject matter of the particular proceeding are such
that the application of the rule or regulation (or provision of it)
would not serve the purposes for which [it] was adopted." The NRC
has interpreted the regulation to require a waiver petitioner to
meet four factors: (1) the rule's strict application would not
serve the purpose for which it was adopted; (2) there are special
circumstances that were not considered, explicitly or implicitly,
in the rulemaking proceeding; (3) those circumstances are "unique"
to the facility and not common to a large class of facilities; and
(4) a waiver is necessary to reach a significant safety problem.
Dominion Nuclear Conn., Inc., 62 N.R.C. 551, 559-60 (2005). The
NRC's decision that Massachusetts did not meet the standards was

-21-
rule and hear issues in a particular relicensing proceeding.

Although some may doubt whether Massachusetts has explicitly,

rather than implicitly, challenged the NRC's ruling on the waiver

petition, we nonetheless address it briefly.

In denying Massachusetts's waiver petition, the NRC

permissibly reasoned that Massachusetts did not show that the spent

fuel pool issues in its contention were unique to Pilgrim. Rather,

they applied to all nuclear power plants and would be more

appropriately handled through rulemaking. We add that onsite

storage of spent fuel is one of the issues being considered in the

Commission's post-Fukushima review of lessons learned, as the

Commission itself has noted.

We also reject the argument that NEPA was violated by the

NRC decision to go ahead with relicensing. In addition to denying

the waiver request and sending the spent fuel pool issue to

rulemaking, the NRC also considered whether to delay relicensing,

in light of the information Massachusetts presented. It stated,

referring at least in part to the spent fuel pool issue, that "we

do not have sufficient information at this time to make a

significant difference in the Pilgrim environmental review."

Massachusetts has conceded that "affirmative evidence of a pool

fire has not emerged" from the Fukushima accident. The record also

reasonable.

-22-
supports the NRC's conclusion that there was no apparent

significant damage to the spent fuel at Fukushima.

C. The NRC's Denial of the Commonwealth's Position on Core
Damage Issues

1. The "Direct Experience" Core Damage Frequency Model

The second major portion of Massachusetts's contention is

that the existing SAMA analysis in the EIS underestimated core

damage frequency by an order of magnitude as shown by the Fukushima

event and thus needed to be supplemented. The NRC rejected this

portion of the contention based on its record reopening standards.

It reasoned that under its record reopening standards: (1) the

claim was untimely because it could have been raised from the

outset, 10 C.F.R. § 2.326(a)(1); and (2) the claim did not

demonstrate the existence of a significant environmental issue, id.

§ 2.326(a)(2). These decisions, based on the reopening standards,

were reasoned and we have no basis to set them aside.18

18
The NRC acted reasonably in deciding to apply its record
reopening standards, a decision Massachusetts does not challenge.
The ASLB closed the record in June of 2008. See Entergy Nuclear
Generation Co., 68 N.R.C. at 595-96 & n.26. Although the NRC
remanded a portion of another party's contention in 2010, different
from the one at issue here, the record remained closed as to all
other issues. Agencies are permitted to impose requirements or
thresholds for parties seeking to reopen a closed record. See,
e.g., Vt. Yankee, 435 U.S. at 554-55. Further, the NRC's reopening
standards have been upheld by other courts. See N.J. Envtl. Fed'n
v. NRC, 645 F.3d 220, 233 (3d Cir. 2011) ("We have upheld the
motion to reopen standard and deferred to the NRC's application of
its rules, so long as it is reasonable."); Oystershell Alliance v.
NRC, 800 F.2d 1201, 1207 (D.C. Cir. 1986) ("In examining
petitioners' plea to reopen the record, we rely on the same court-
sanctioned test applied by the Commission . . . .").

-23-
 It is quite clear there was nothing new about the

purportedly new methodology used to determine the frequency of core

damage events. The methodological issue could have been raised

from the beginning of the relicensing proceeding by Massachusetts,

but was not. 10 C.F.R. § 2.326(a)(1). Massachusetts belatedly

asserts that by taking five historical core damage events (Three

Mile Island, Chernobyl, and three units at Fukushima) and dividing

that number by the number of operating years of all nuclear power

plants worldwide, the frequency of core damage events is

approximately ten times higher than the estimate in the SAMA

analysis. The same methodological argument could have been made

before Fukushima occurred. As the ASLB and the NRC agreed,

applying the purported "direct experience" methodology at the time

the initial opportunity for a hearing was announced, pre-Fukushima,

would have produced a frequency approximately five times greater

than that contained in the SAMA analysis. Although Fukushima

increased the order of magnitude of the frequency of core damage

events if assessed under another underlying methodology -- the

"direct experience" methodology -- the fact that the Fukushima

disaster occurred is beside the point here as it did not change the

fact that the underlying methodological challenge was not new.

Even if it were new, the NRC reasonably concluded this

methodology contention, timely or not, did not raise a significant

environmental issue. 10 C.F.R. § 2.326(a)(2). Indeed, it

-24-
reasonably concluded it was already using a better methodology.

The NRC uses a site-specific and plant-specific PRA methodology,

which answers three questions: (1) what can go wrong; (2) how

likely is it; and (3) what are the consequences.19

The NRC had adequate evidence20 that the "Pilgrim-specific

PRA is expected to yield a much more accurate estimate of risk

(including [core damage frequency]) than a historical rate

calculation using an extremely limited set of data points that

aggregates all different plant designs, operational practices, and

site conditions around the world." Further, Massachusetts also did

not explain how Dr. Thompson's methodology, based on a limited data

set, would be used to develop a new spectrum of core damage

frequencies.

"[A]gencies are entitled to select their own methodology

as long as that methodology is reasonable," and we give deference

19
This requires an evaluation of the combinations of plant
failures that can lead to core damage, and for each core damage
sequence identified, an evaluation of core damage progression and
possible containment failure. R. at 1216. Importantly, the PRA
methodology is both site-specific and plant-specific, and takes
into account hazards, the design of the plant, and plant-specific
operational practices that affect how the plant responds to
potential challenges. R. at 1903. The overall probability that
core damage will occur at the plant is calculated by aggregating
the individual probabilities of various accident scenarios. R. at
1094.
20
By contrast, Dr. Thompson's report admitted his methodology
relied on "a data set that is comparatively sparse and therefore
does not provide a statistical basis for a high-confidence estimate
of [core damage frequency]." He stated that the data set and
method provided at most a "reality check" to the PRA estimates.

-25-
to that decision here. Town of Winthrop, 535 F.3d at 13 (quoting

Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289

(4th Cir. 1999)) (internal quotation mark omitted).

2. The NRC's Denial of the SAMA Specific Issues

Massachusetts's contention also raised more specific

information that it said should be considered or reevaluated in a

SAMA analysis, arguing that the information concerned the cost-

effectiveness of mitigation alternatives. The NRC rejected each

one, offering a reasoned basis under the reopening and/or the

admissibility standards for each, which we do not disturb.

First, Massachusetts asserted that operators at the

nuclear power plant at Fukushima were unable to perform mitigation

actions, which could affect the probability of a radioactive

release and should be considered in a SAMA analysis. Most of this

portion of the contention and expert report focused intently upon

spent fuel storage pools, which, as noted, the Commission had

referred to the rulemaking process.21

To the extent the claim dealt with other operator

mitigation issues, the NRC again required Massachusetts to meet its

record reopening standard. The NRC found that the reopening

standard was not met because Massachusetts had not demonstrated

21
To the extent the claim deals with environmental impacts
from spent fuel pools, it failed to meet the admissibility
standards because it is outside the scope of the proceedings, 10
C.F.R. § 2.309(f)(1)(iii), for the reasons we described earlier.

-26-
sufficiently that a materially different result (in the SAMA

analysis) would have been likely had the information been

considered initially. See 10 C.F.R. § 2.326(a)(3). That

determination is supported by the fact that operator actions not

involving spent fuel pools were considered in Entergy's license

renewal application, a fact which Massachusetts did not even

address in its contention. Further, Massachusetts did not indicate

how those already stated analyses would be affected by the proposed

new information. The NRC was not arbitrary in concluding that the

Commonwealth's mere pointing to a piece of information and

speculating that the results of the SAMA analysis may be different

was not sufficient to meet the requirement of 10 C.F.R.

§ 2.326(a)(3).

Second, Massachusetts argues "the NRC's excessive secrecy

regarding accident mitigation measures and the phenomena associated

with spent-fuel-pool fires degrades the licensee's capability to

mitigate an accident." Dr. Thompson's report explains that secrecy

could result in managers and operators not having a thorough

understanding of the measures they are to implement. The NRC

permissibly decided this portion of the contention failed to

satisfy the general admissibility standards because it fell outside

the scope of the proceeding, id. § 2.309(f)(1)(iii), stating that

the "concerns appear to be directed more generally at policy issues

governing access and categorization of non-public information."

-27-
 Third, relying on its earlier assertion that Fukushima

presents new and significant information about the likelihood of

spent fuel pool accidents, Massachusetts's expert asserted that a

new SAMA analysis should consider low-density, open-frame storage

racks. The NRC properly determined this claim failed to satisfy

the general admissibility standards because it fell outside the

scope of the proceeding, id. § 2.309(f)(1)(iii), in light of its

denial of the waiver petition and the referral of the rulemaking

petition to its staff.

Fourth, Massachusetts argues new information about

hydrogen explosions during reactor accidents could alter the SAMA

analysis. Dr. Thompson's report contends that "the potential for

such explosions has not been adequately considered in the Pilgrim

license extension proceeding," and that "containment venting and

other hydrogen control systems at the Pilgrim plant should be

upgraded, and should use passive mechanisms as much as possible."

The NRC rejected this claim on two grounds: (1) under the

record reopening standard, Massachusetts had not shown a likelihood

of a materially different result had the hydrogen control

information been considered initially, id. § 2.326(a)(3); and (2)

whether or not the record was reopened, under the general

admissibility standards, Massachusetts did not raise a genuine

dispute with the existing SAMA analysis, id. § 2.309(f)(1)(vi).

For present purposes, we deal only with the second, more merits-

-28-
based ground for rejection, and find it permissible. In fact,

neither Massachusetts's contention nor Dr. Thompson's reports

addressed the consideration of hydrogen explosions present in the

existing SAMA analysis. The analysis examined "the potential loss

of containment integrity," including as a result of "hydrogen

deflagration or detonation." Massachusetts did not even attempt to

explain how the extant analysis was inadequate or how the new

information would alter it, and failed to raise a genuine dispute.

Finally, Massachusetts raised a claim relating to

filtered venting of reactor containment. Specifically,

Massachusetts stated "it appears likely that filtered venting . . .

could substantially reduce the atmospheric release of radioactive

material from an accident at the Pilgrim [nuclear power plant]."

Its expert therefore recommended that filtered vents should be

considered in a new SAMA analysis.

The claim that the EIS was inadequate for these reasons

was rejected on two grounds: (1) Massachusetts failed to

demonstrate the likelihood of a materially different result under

the reopening standards, 10 C.F.R. § 2.326(a)(3); and (2) in any

event, to the extent that Massachusetts would require filtered

vents, the general admissibility standards were not met because it

was outside the scope of the proceeding, id. § 2.309(f)(1)(iii).

The first ground (record reopening) is supported by the fact that

Massachusetts did not discuss the costs and benefits of adding

-29-
filters, which is fatal to its claim because a SAMA analysis is a

cost-benefit analysis. Further, the SAMA analysis did in fact

consider filtered vents, finding that the cost was three times

greater than the projected benefit. Massachusetts's contention and

supporting materials did not acknowledge or challenge that

analysis. The NRC also permissibly rejected the claim, through its

admissibility standards, as outside the scope of the proceeding,

because the claim was not that the consideration was inadequate,

but that filtered vents were mandated. That is clearly beyond the

scope. See Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 350 (1989) (stating NEPA "does not mandate particular

results").

In sum, the NRC's decision to reject the contention as to

each issue raised was not arbitrary or capricious and constituted

reasoned decisionmaking. See Allentown Mack Sales & Serv., Inc. v.

NLRB, 522 U.S. 359, 374 (1998) (agency adjudications must be

reasoned decisionmaking).

Although whether the NRC complied with NEPA's "hard look"

requirement is a separate and independent question, the process and

reasoning provided by the NRC, discussed above, demonstrates that

the "hard look" requirement was plainly met: information proffered

by Massachusetts was considered before the ASLB and NRC, the agency

obtained opinions from the NRC staff, and from experts outside the

agency, including those of Massachusetts and Entergy. The NRC also

-30-
offered a reasoned explanation. This meets the requirement of

taking a "hard look" at such information. See, e.g., Hughes River,

165 F.3d at 288 (listing obtaining opinions from agency's own

experts, outside experts, giving scientific scrutiny, and offering

responses to legitimate concerns as evidence of a sufficiently

"hard look" (citing Marsh, 490 U.S. at 378-85)).

Massachusetts fleetingly argues that its rights to a

hearing under the AEA were somehow violated. Not so. The hearing

right provided in the AEA "does not confer the automatic right of

intervention upon anyone." Union of Concerned Scientists v. NRC,

920 F.2d 50, 55 (D.C. Cir. 1990) (quoting BPI v. Atomic Energy

Comm'n, 502 F.2d 424, 428 (D.C. Cir. 1974)) (internal quotation

marks omitted). The NRC may certainly impose procedural

requirements for obtaining a hearing where the statute provides no

additional guidance, and because the decision that those standards

were not met was not arbitrary and capricious, as just discussed,

the AEA claim fails. See Am. Trucking Ass'ns, Inc. v. United

States, 627 F.2d 1313, 1321 (D.C. Cir. 1980) (stating that agencies

have wide discretion in establishing and applying rules for

hearings).

IV.

Rather than argue explicitly about the findings of the

NRC, as to whether the portions of the contention met the reopening

and/or the admissibility standards, in rejecting the Commonwealth's

-31-
contention, Massachusetts devotes a substantial portion of its

brief to arguing that the NRC acted arbitrarily and capriciously,

alleging that: (1) the NRC failed to explain why the Task Force

Report did not support Massachusetts's claims; and (2) the NRC's

explanations for denying the contention were somehow inconsistent

with the fact that the Task Force made recommendations, some of

which the NRC adopted, based on the events at Fukushima. We reject

both arguments. There is a disconnect in the Commonwealth's

argument that the NRC ignored its own Task Force's work product,

which it cited and which it is now implementing and reviewing.

As a factual matter, the argument is simply wrong. The

NRC dealt with the Task Force Report as part of its analysis in

rejecting the Commonwealth's contention. First, the NRC

acknowledged that Massachusetts claimed that the ASLB had ignored

the Task Force Report in its decision. Second, the NRC

incorporated the Report into its analysis of each issue where

relevant,22 and found the NRC's reopening and/or admissibility

requirements were still not met.23

22
In reaching its determination that "[a]t bottom,
Massachusetts has not shown that its contention should be litigated
in this proceeding because it has failed to demonstrate a
sufficiently supported link between the Fukushima Dai-ichi events
and the Pilgrim environmental analysis," the NRC cited to Dr.
Thompson's supplemental declaration on the Task Force Report at
least seven times.
23
To the extent Massachusetts's complaint is not the merits
of the rejection, but that the NRC did not explicitly explain why
it issued certain orders based on the Task Force Report while not

-32-
 The NRC also stated that its review of the Fukushima

event is ongoing and that all plants will be required to comply

with NRC directions resulting from that review. At the time of its

decision, however, the NRC said the Commonwealth had not presented

sufficient information from the Fukushima incident to make a

significant difference in Pilgrim's environmental review.

The Task Force Report did not make environmental-impact

estimates, assess the implementation costs of its recommendations,

or engage in any PRA, as even Massachusetts's own expert admitted.

It used direct mechanisms under the AEA to address safety and did

not reveal the type of information used in a NEPA analysis.

"The basic thrust of the agency's responsibilities under

NEPA is to predict the environmental effects of a proposed action,"

Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1033 (D.C. Cir.

2008) (emphasis added), and NEPA does not require substantive

outcomes. The Task Force Report is not in conflict with the NRC's

decision not to supplement the EIS in the Pilgrim relicensing.24

updating the environmental analysis, Massachusetts never raised the
issue before the NRC and cannot raise it newly here. Further,
there is no representation from the Commonwealth as to why this
would lead to any different conclusions.
24
Three Commission orders were issued in response to the Task
Force recommendations. Two orders, one on mitigation strategies
for beyond-design-basis external events and one on hardened vents,
were issued as "adequate protection" requirements under the AEA and
were issued without plant-specific PRAs or cost-benefit analyses,
which are normally part of a SAMA analysis. See Entergy Nuclear
Generation Co., CLI-12-15, slip op. at 4-5 & n.11 (June 7, 2012);
see also 10 C.F.R. § 50.109(a)(4)(ii) (no backfit analysis required

-33-
 At heart, Massachusetts's argument is simply a variant of

the argument that the NRC should not have reached the licensing

question, but should have deferred until more information could be

collected or obtained to create a more complete picture. The

argument fails.

V.

We are still left with the question of whether the NRC

lawfully acted within its discretion when it denied Massachusetts's

request to suspend license renewal proceedings pending resolution

of the Commonwealth's petition for rulemaking. As to the spent

fuel pool issue, the rulemaking petition asks the NRC to rescind

its regulations that this is a Category 1 issue that need not be

addressed on a site-specific basis in an EIS. 10 C.F.R.

§ 51.71(d). The NRC referred the rulemaking petition to the

Commission's staff, but denied the accompanying suspension request.

The NRC contends that Massachusetts failed to preserve

its challenge to the denial of the suspension request. The

Commonwealth may well have failed to preserve the issue, but we

choose to rely on the alternate merits ground.

for action necessary to ensure adequate protection). The third
order, requiring reliable spent fuel pool instrumentation, was
exempted from a cost-benefit analysis. Nothing in the orders calls
into question the accuracy of the EIS.

-34-
A. The NRC's Application of its Suspension of Relicensing
Test

The NRC did not act arbitrarily or capriciously in its

application of its suspension standard. In Private Fuel Storage,

LLC, 54 N.R.C. 376 (2001), the NRC said that, in deciding whether

to suspend licensing proceedings, it will consider whether moving

forward would (1) "jeopardize the public health and safety," (2)

"prove an obstacle to fair and efficient decisionmaking," or (3)

"prevent appropriate implementation of any pertinent rule or policy

changes that might emerge from [the Commission's] important ongoing

evaluation of []related policies." Id. at 380. Here, the NRC

reasonably weighed each of the Private Fuel Storage factors and

concluded that, on balance, suspension of the Pilgrim plant

proceedings was not warranted. Massachusetts does not challenge

the NRC's determination that the Private Fuel Storage factors favor

the denial of the Commonwealth's suspension request.

The NRC concluded that moving forward with the Pilgrim

license renewal proceedings would not jeopardize the public health

or safety, and the Commonwealth has presented no basis to say this

was not a reasonable conclusion. To be clear, this issue is not

about whether Pilgrim would continue to operate in the interim

under NRC rules. It would. See 10 C.F.R. § 2.109(b).

Further, the AEA explicitly authorizes the NRC to modify

or revoke a license after it is granted if "conditions revealed

by . . . any report, record, or inspection or other

-35-
means . . . would warrant the Commission to refuse to grant a

license on an original application." 42 U.S.C. § 2236(a).25 This

provision "reflects a deliberate policy choice on the part of

Congress . . . to render licenses for nuclear facilities subject

to postlicensing review under evolving licensing standards." Ft.

Pierce Utils. Auth. v. United States, 606 F.2d 986, 996 (D.C. Cir.

1979).

The NRC has represented that it fully intends to

undertake post-licensing review of environmental and safety

conditions at the Pilgrim plant where such review becomes

warranted. The relicensing of Pilgrim does not mean the plant will

not receive the benefit of the lessons learned from Fukushima. The

NRC has stated that "[a]ll affected nuclear plants ultimately will

be required to comply with NRC direction resulting from lessons

learned from the Fukushima accident, regardless of the timing of

issuance of the affected licenses."

Moreover, if it should occur that the NRC adopts more

stringent licensing standards going forward and does not apply

those standards to Pilgrim, then the Commonwealth can request that

the NRC initiate proceedings to determine whether the Pilgrim plant

license would have been granted under the new criteria. See 10

25
See also 42 U.S.C. § 2237 (statutory authority to modify
licenses); 10 C.F.R. §§ 2.202, 2.206 (implementing regulations).

-36-
C.F.R. § 2.206(a).26 And, if that request is denied, Massachusetts

can petition to the court of appeals, see Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 741 (1985), where there is judicial review

to ensure that the Commission has not "default[ed] on its

fundamental responsibility to protect the public safety."

Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989); see also

Mass. Pub. Interest Research Grp. v. NRC, 852 F.2d 9, 19 (1st Cir.

1988).

B. NEPA Did Not Require Suspension of License Renewal

Massachusetts, nonetheless, makes the novel claim that

under NEPA, the Commission must, as a matter of law, complete its

review of the lessons learned from Fukushima before it renews the

Pilgrim plant license, but does not cite any pertinent authority.

We have already determined that the NRC met its obligation under

NEPA to take a "hard look" at the environmental consequences of the

Pilgrim plant license renewal; the Commission is, of course, free

26
When a person requests that the NRC initiate proceedings to
modify or revoke a license, the director of the relevant NRC office
must determine "[w]ithin a reasonable time" whether the request
will be honored and, if not, must state the reasons for his or her
decision in writing. 10 C.F.R. § 2.206(b). In other words, the
NRC's own regulations state that any challenge to the Pilgrim plant
license based on information gleaned from the rulemaking process
will be considered promptly by the Commission's staff, and the
Commission has provided a procedural mechanism "to allow interested
parties to prevent agency reliance on previous determinations when
new information or other pertinent concerns demand special
consideration." Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169,
1178 (D.C. Cir. 1992) (en banc).

-37-
to take a harder look at the spent fuel pool issue and other

generic issues through the rulemaking process.

Massachusetts's premise, that the NRC must wait for even

more information to become available before the license can be

renewed, finds no support. Massachusetts relies particularly on

its reading of two Supreme Court decisions: Baltimore Gas &

Electric Co., 462 U.S. 87, and Robertson, 490 U.S. 332. Both are

inapposite.

Baltimore Gas & Electric says nothing about the need to

delay licensing when currently unavailable information might come

to light in the future. Rather, it upheld an NRC rule directing

licensing boards to assume for purposes of NEPA that permanent

storage of certain nuclear waste at plant sites would have no

significant environmental impact and that the risk of leakage need

not be considered in individual licensing proceedings. 462 U.S. at

89-90, 93-95.

Massachusetts cites Robertson for the proposition that an

agency must consider potential environmental impacts before taking

a major federal action to "ensure[] that important effects will not

be overlooked or underestimated only to be discovered after

resources have been committed or the die otherwise cast." 490 U.S.

at 349. But that general language about the purpose of NEPA and

the need to consider environmental impacts imposes no requirement

on the NRC to hold off on taking action where information is either

-38-
unavailable or insufficient to change an existing environmental

analysis.27

To the contrary, in Town of Winthrop, 535 F.3d 1, we

found that it was reasonable for an agency to decline to study, in

a supplemental EIS, a pollutant for which there was not yet a

standard method of measurement or analysis. Id. at 13. It is

similarly reasonable not to delay relicensing until even more

information becomes available because the process could otherwise

become unending, as new information is always developing. Cf.

Marsh, 490 U.S. at 373 (explaining that requiring an updated EIS

every time new information arises is not practical because agencies

would always be "awaiting updated information only to find the new

information outdated by the time a decision is made").

NEPA imposed no obligation on the NRC to withhold the

granting of a renewed license here because of the possibility that

currently unavailable information might become available in the

future.

VI.

The petitions for review are denied.

27
To the extent Massachusetts seeks to impose a substantive
requirement that the NRC must require certain mitigation measures
under NEPA, that is foreclosed by the fact that NEPA is not outcome
driven. Robertson, 490 U.S. at 353 ("[I]t would be inconsistent
with NEPA's reliance on procedural mechanisms -- as opposed to
substantive, result-based standards -- to demand the presence of a
fully developed plan that will mitigate environmental harm before
an agency can act.").

-39-