United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2014 Decided October 14, 2014

No. 13-1259

SHIELDALLOY METALLURGICAL CORPORATION,

PETITIONER

v.

NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF 

AMERICA,

RESPONDENTS

STATE OF NEW JERSEY,

INTERVENOR

On Petition for Review of an Order of 

the U.S. Nuclear Regulatory Commission

Jay E. Silberg argued the cause for petitioner. With him 

on the briefs were Matias F. Travieso-Diaz, Stephen L. 

Markus, and Alison M. Crane. 

Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory 

Commission, argued the cause for respondents. With him on 

the brief were Robert G. Dreher, Acting Assistant Attorney 

General, U.S. Department of Justice, Lane N. McFadden, 
2

Attorney, and Grace H. Kim, Senior Attorney, U.S. Nuclear 

Regulatory Commission.

Andrew D. Reese argued the cause and filed the brief for 

intervenor State of New Jersey.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit 

Judge, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Shieldalloy 

Metallurgical Corporation petitions for review of a Nuclear 

Regulatory Commission (“NRC” or “Commission”) order 

reinstating the transfer of regulatory authority to the State of 

New Jersey under the Atomic Energy Act, 42 U.S.C. § 2021. 

The NRC issued the order under review, Shieldalloy 

Metallurgical Corp., CLI-13-06, 78 NRC __ (Aug. 5, 2013) 

(“Order”), to address concerns raised by this Court in 

Shieldalloy Metallurgical Corp. v. NRC, 707 F.3d 371 (D.C. 

Cir. 2013) (“Shieldalloy II”). We conclude that the NRC has 

rationally addressed these concerns when it provided a textual 

analysis of 10 C.F.R. § 20.1403 and explained how New 

Jersey’s regulatory regime is adequate and compatible with 

the NRC’s regulatory program. Contrary to Shieldalloy’s 

arguments, the NRC’s Order does not conflict with its prior 

interpretations or amount to a convenient, post hoc litigating 

position. We therefore deny Shieldalloy’s petition for review.

I. 

Shieldalloy manufactured metal alloys in Newfield, New 

Jersey for approximately fifty years. While processing the 

raw materials and ores necessary to produce the metal alloys, 

Shieldalloy generated radioactive byproducts. Shieldalloy 

had an NRC license to store these byproducts on site. When 
3

it ceased operations at the Newfield site in 1998, Shieldalloy 

had accumulated approximately 65,800 cubic meters of 

radioactive materials containing uranium (U-238) and thorium 

(Th-232). Intervenor New Jersey reminds us that the average 

household refrigerator has approximately one cubic meter of 

storage. The half-life for uranium and thorium exceeds four 

billion years, and Shieldalloy stores these byproducts in 

uncovered waste piles on the site, which is located near 

residences and businesses. 

The present petition is the third to reach this Court in a 

longstanding dispute over the rules governing what 

Shieldalloy must do with the radioactive waste at its Newfield 

site. Around the time that Shieldalloy first sought to 

decommission the site, the NRC developed and published 

rules for decommissioning licensed facilities, referred to as 

the license termination rule or “LTR.” See 10 C.F.R. 

§§ 20.1401–06. The LTR provisions “provide specific 

radiological criteria for the decommissioning of lands and 

structures . . . to ensure that decommissioning will be carried 

out without undue impact on public health and safety and the 

environment.” Final Rule, Radiological Criteria for License 

Termination, 62 Fed. Reg. 39,058, 39,058 (July 21, 1997). 

The rules generally express the NRC’s preference to 

decommission a site in a way that allows for the unrestricted 

future use of the property. Id. at 39,069. As its name 

suggests, unrestricted use contemplates that there will be no 

limit to public use of the land in the future, and access will be

“neither limited nor controlled by the licensee.” 10 C.F.R. 

§ 20.1003. In its final rulemaking, the NRC explained that 

“termination of a license for unrestricted use is preferable 

because it requires no additional precautions or limitations on 

use of the site after licensing control ceases, in particular for 

those sites with long-lived nuclides.” 62 Fed. Reg. at 39,069.

To qualify for unrestricted release, the licensee must 

physically remove or decontaminate radioactive material to 
4

ensure that the residual levels of radioactivity remaining on 

site result in doses of radiation no higher than 25 millirem per 

year. See 10 C.F.R. § 20.1402. By way of context, a chest xray typically gives a dose of 10 millirem. Doses in Our Daily 

Lives, http://www.nrc.gov/about-nrc/radiation/aroundus/doses-daily-lives.html (last visited Oct. 14, 2014). 

Under limited circumstances, the LTR provisions also 

allow licensees to dispose of radioactive waste on site with 

restricted future use. 62 Fed. Reg. at 39,069; see also 10 

C.F.R. § 20.1403. Restricted use means that access to the 

area “is limited by the licensee for the purpose of protecting 

individuals against undue risks from exposure to radiation and 

radioactive materials.” 10 C.F.R. § 20.1003. In contrast to 

unrestricted release, a licensee seeking restricted release is 

allowed to achieve the 25 millirem per year dose limit by 

installing controls to limit access to radioactive material left 

on site. See id. § 20.1403(b).

Shieldalloy has consistently sought to dispose of its 

radioactive waste on site through restricted future use. See, 

e.g., Decommissioning of Shieldalloy Metallurgical 

Corporation’s Facility in Newfield, NJ, 58 Fed. Reg. 62,387, 

62,388-89 (Nov. 26, 1993). Between 2002 and 2009, 

Shieldalloy submitted four versions of its on-site 

decommissioning plan, but the NRC never accepted any of 

the plans. The NRC Commissioner urged Shieldalloy to 

explore options other than on-site decommissioning. 

Independent of the NRC’s discussions with Shieldalloy, 

the governor of New Jersey requested that the Commission 

transfer its nuclear regulatory authority to the State of New 

Jersey as authorized by the Atomic Energy Act. See Notice of 

Proposed Agreement, 74 Fed. Reg. 25,283, 25,283-87 (May 

27, 2009). Under the statute, the NRC “shall enter into an 

agreement” to transfer its authority to a state if it finds the 

state’s regulatory regime is “adequate to protect the public 
5

health and safety” and “compatible with the Commission’s 

program.” 42 U.S.C. § 2021(d). The Commission called for 

comments regarding the transfer, and Shieldalloy argued that 

New Jersey’s regulatory regime was not compatible with 

federal regulations. The NRC rejected these arguments and 

issued an order denying Shieldalloy’s motion to stay the 

transfer of authority to New Jersey. When the transfer 

occurred, the Commission forwarded Shieldalloy’s pending 

decommissioning plan to New Jersey. About two weeks later, 

New Jersey informed Shieldalloy that the plan was 

unacceptable and asked Shieldalloy to submit a new 

decommissioning plan that complied with state regulations. 

Shieldalloy has yet to submit a revised plan to New Jersey. 

Fearing that it would have to abandon its restricted 

release decommissioning plan and be forced to adopt a more 

expensive unrestricted release plan, Shieldalloy petitioned this 

Court for review of the NRC’s transfer of authority. 

Shieldalloy Metallurgical Corp. v. NRC, 624 F.3d 489 (D.C. 

Cir. 2010) (“Shieldalloy I”). We held in Shieldalloy I that the 

transfer of authority was arbitrary and capricious because the 

NRC did not provide a sufficient explanation for its actions. 

Id. at 495. After remand, the NRC gave Shieldalloy and New 

Jersey a fresh opportunity to comment on the transfer. The 

NRC conducted a full review, examined all issues anew, and 

reinstated the transfer of its regulatory authority to New 

Jersey. 

For a second time, Shieldalloy petitioned this Court for 

review, arguing that the NRC followed neither its own 

regulations nor the requirements of the Atomic Energy Act. 

Shieldalloy II, 707 F.3d at 376-77. Again, this Court vacated 

the transfer of authority. Id. at 383. The Court was 

unpersuaded by the Commission’s explanation of its

interpretation of 10 C.F.R. § 20.1403(a), which permits a 

licensee to terminate its license under restricted conditions if 
6

it can demonstrate that further reductions in residual 

radioactivity would result in net public or environmental 

harm, or if further reductions are not being made because 

levels of residual radioactivity are already as low as 

reasonably achievable (“ALARA”). Id. at 379. Because the 

NRC’s interpretation of this rule “lacked an apparent textual 

basis,” the Court remanded for “the Commission [to] explain 

itself.” Id. at 382. 

On remand, the NRC issued CLI-13-06, the Order now 

under review. The Commission reinstated the transfer of 

authority to New Jersey and “provide[d] additional 

explanation to clarify that § 20.1403(a) is consistent with 

(and, in fact, codifies) our preference that licensees satisfy our 

radiation dose criteria for license termination through 

unrestricted-release decommissioning if it is cost-beneficial to 

do so.” Order at 3-4. The NRC explained that the ALARA 

principle in § 20.1403(a) provides an initial eligibility test for 

restricted release, and reaffirmed its prior conclusion that 

New Jersey’s regulatory regime is adequate and compatible 

with NRC’s regulations. Order at 23. The NRC also clarified 

how its interpretation is consistent with prior practices and 

interpretations. Order at 18-23. 

Shieldalloy again petitions this Court to vacate the 

NRC’s Order transferring regulatory authority to New Jersey.

II. 

We review NRC final orders under the arbitrary and 

capricious standard of the Administrative Procedure Act, 5 

U.S.C. § 706(2)(A). Under the arbitrary and capricious 

standard of review, an agency must “set forth its reasons for 

decision,” Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 

(D.C. Cir. 2001) (internal quotation marks omitted) (quoting 

Roelofs v. Secretary of the Air Force, 628 F.2d 594, 599 (D.C. 

Cir. 1980)), and “‘respond meaningfully’ to objections raised 
7

by a party,” PPL Wallingford Energy LLC v. FERC, 419 F.3d 

1194, 1198 (D.C. Cir. 2005) (quoting Canadian Ass’n of 

Petroleum Producers v. FERC, 254 F.3d 289, 299 (D.C. Cir. 

2001)). When the agency “has considered the relevant factors 

and articulated a rational connection between the facts found 

and the choice made,” we will uphold its decision. 

Transcontinental Gas Pipe Line Corp. v. FERC, 518 F.3d 

916, 919 (D.C. Cir. 2008) (quoting Nat’l Ass’n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007)). 

An agency’s interpretation of its own regulations is 

entitled to “substantial deference” and is given “controlling 

weight unless it is plainly erroneous or inconsistent with the 

regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 

504, 512 (1994). Deference is appropriate even if the 

agency’s interpretation first appears during litigation, see

Auer v. Robbins, 519 U.S. 452, 462-63 (1997), unless the 

interpretation conflicts with prior interpretations or amounts

to “nothing more than a convenient litigating position,” 

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 

2166 (2012) (internal quotation marks and citation omitted).

Shieldalloy argues that the NRC’s transfer of regulatory 

authority to New Jersey was arbitrary and capricious because 

the NRC did not rationally explain how New Jersey’s 

regulatory regime is “adequate to protect the public health and 

safety” or “compatible with the Commission’s program” 

under 42 U.S.C. § 2021(d)(2). We disagree. As we explain

below, we discern no reason to invalidate the NRC’s transfer 

of regulatory authority. Accordingly, we conclude that the 

NRC addressed the concerns raised in Shieldalloy II and 

rationally explained how New Jersey’s regulatory regime is 

adequate and compatible with the NRC’s regulations.
8

A.

Shieldalloy contends that New Jersey’s regulations are 

inadequate to protect public health and safety because New 

Jersey’s program does not provide restricted use options that 

will best reduce the public’s exposure to doses of radiation. 

NRC regulations provide licensees like Shieldalloy a 

restricted use option as a “reasonable means for terminating 

licenses at certain facilities” so long as the decommissioning 

is “properly designed” and there are “proper controls” in 

place. 62 Fed. Reg. at 39,069. Shieldalloy argues that New 

Jersey’s program, however, is not as safe as the NRC’s 

regime because New Jersey’s regulations do not incorporate 

the ALARA principle and essentially bar a licensee from 

decommissioning a site with restricted future use. Shieldalloy 

complains that it is virtually impossible for it to 

decommission the Newfield facility for restricted release 

under New Jersey’s regulations. Pet. Br. 64. To support its 

argument, Shieldalloy points to NJRAD Form-314, the 

disposition certificate that licensees must file to 

decommission a site, because it only allows the licensee to 

request “release for unrestricted use” and not restricted use. 

See Pet. Reply Br. 26 (discussing the October 3, 2012 version 

of the form). 

This Court previously rejected Shieldalloy’s argument

“that the New Jersey rules were more stringent but less safe”

than the NRC standards. Shieldalloy II, 707 F.3d at 375. 

Addressing the statutory requirement that a state program 

must be adequate to protect the public health and safety, we

concluded that the NRC, “on its second 

attempt, . . . adequately addressed Shieldalloy’s claims arising 

out of . . . the parties’ conflicting interpretations of § 2021.”

Id. We need not revisit that conclusion. 

Contrary to Shieldalloy’s argument, New Jersey’s 

regulatory regime applies the ALARA principle to 
9

decommissioning activity because state regulations 

incorporate by reference several provisions of 10 C.F.R. Part 

20, including § 20.1101(b) (requiring licensees to use 

protection principles to achieve doses to the public that are 

ALARA for all licensed activity). N.J. Admin. Code § 7:28-

6.1(a). By incorporating § 20.1101(b), New Jersey expressly 

requires the application of the ALARA principle for license 

termination and decommissioning. New Jersey’s program 

therefore protects public health and safety through ALARA 

just like the NRC’s regulatory regime.

New Jersey’s regulations also permit license termination 

with restricted future use. New Jersey’s regulations include 

options for licensees to decommission a site with “limited 

restricted use” as well as “restricted use.” See N.J. Admin. 

Code § 7:28-12.9(a)(1) (listing remediation standards for 

radionuclides in soil). And New Jersey regulations even 

provide a restricted use decommissioning option with 

alternative standards. N.J. Admin. Code § 7:28-12.11(a). 

Under the alternative standards option, the licensee is not 

required to meet the soil concentration levels under N.J. 

Admin. Code § 7:28-12.9 but is instead required to perform 

computer dose modeling to ensure that the radioactivity from 

the site will not cause a future on-site resident or worker to 

receive more than a 15 millirem dose of radiation in a given 

year. N.J. Admin. Code § 7:28-12.11(a)(1), (f)(2). At oral 

argument, New Jersey made clear that it changed its 

certification form to conform to its regulatory program, which 

permits the restricted release of sites. When filing the 

updated NJRAD Form-314, a licensee can now request that 

New Jersey releases the site for restricted use in accordance 

with state regulations. See NJRAD Form-314 (Revised May 

23, 2014), available at www.state.nj.us/dep/rpp/rms/agreedo

wn/Termination.pdf. 
10

Like the NRC’s regulations, New Jersey’s regulations 

also incorporate a preference for the removal of radioactive 

materials to meet unrestricted conditions. Most importantly, 

New Jersey’s regulations express a preference for unrestricted 

release that is more protective of the public health than the 

NRC’s regulations. To qualify for “limited restricted use” or 

“restricted use” under N.J. Admin. Code § 7:28-12.9, the 

licensee must remove sufficient radioactive materials to 

ensure a future on-site resident or worker receives no more 

than a 15 millirem dose of radiation in a given year. The 

alternative standards similarly require the removal of waste so 

that a person would only be exposed to a 15 millirem dose on 

site. N.J. Admin. Code § 7:28-12.11(a)(1), (f)(2). And if all 

controls failed, the dose to the public cannot exceed 100 

millirem per year. See § 7:28-12.11(e). New Jersey’s 

alternative standards are more stringent than the NRC’s 

restricted release option. The NRC allows a maximum 

exposure of 25 millirem per year for a person, 10 C.F.R. 

§§ 20.1402, 20.1403(b), and an overall dose to the public of

up to 500 millirem per year if controls failed, § 20.1403(e). 

Contrary to Shieldalloy’s arguments, the NRC’s transfer 

of authority is not arbitrary and capricious simply because 

New Jersey’s regulations impose more stringent requirements. 

Indeed, the NRC has always contemplated transferring 

authority to states under the agreement state program so long 

as “[t]he overall level of protection of public health and safety 

provided by a State program [is] equivalent to, or greater 

than, the level provided by the NRC program.” Statement of 

Principles and Policy for the Agreement State Program, 62 

Fed. Reg. 46,517, 46,524 (Sept. 3, 1997) (emphasis added); 

id. at 46,520 (“[T]he more stringent requirements do not 

preclude or effectively preclude a practice in the national 

interest without an adequate public health and safety or 

environmental basis related to radiation protection.”); see also

Shieldalloy II, 707 F.3d at 375. We therefore conclude under 
11

the first statutory requirement that the NRC rationally 

explained how New Jersey’s “program is adequate to protect 

the public health and safety.” 42 U.S.C. § 2021(d)(2). 

B.

Under the second statutory requirement of § 2021(d)(2), 

Shieldalloy argues that the NRC’s transfer of regulatory 

authority to New Jersey was arbitrary and capricious because 

the NRC did not adequately explain how New Jersey’s 

regulatory regime is compatible with the Commission’s 

program. Shieldalloy suggests that New Jersey’s regulations 

are incompatible with the NRC’s regulations because they do 

not conform to the NRC’s restricted release rule, 10 C.F.R. 

§ 20.1403. Under Shieldalloy’s reading of the rule, the NRC 

permits a licensee to terminate its license under restricted 

conditions whenever the licensee can show that restricted 

release will cost-beneficially ensure lower radiation doses 

than the radiation doses associated with unrestricted use, 

which requires the costly removal of radioactive waste. In 

other words, Shieldalloy contends that § 20.1403(a) requires 

the licensee to compare the costs and benefits (including the 

potential radiation doses to the public) of restricted as well as 

unrestricted release, and then select the option that will costbeneficially result in the lowest exposure of radiation doses to 

the public. 

Shieldalloy points to the text of § 20.1403(a) and the 

definition of ALARA, which refers to dose levels—ALARA 

“means making every reasonable effort to maintain exposures 

to radiation as far below the dose limits . . . as is practical.” 10 

C.F.R. § 20.1003 (emphasis added). Because § 20.1403(a) 

incorporates the ALARA standard, Shieldalloy contends that 

this requires a cost-benefit comparison of dose levels 

associated with leaving the materials on site (restricted 

release) versus removing the materials from the site 

(unrestricted release). Shieldalloy argues that the NRC’s 
12

interpretation to the contrary amounts to a post hoc litigation 

position that is inconsistent with the NRC’s prior practices 

and interpretations. 

We reject Shieldalloy’s arguments and conclude that the 

NRC adequately explained, based on “the authorities on 

which it purports to draw,” how New Jersey’s regulations are 

compatible with its own regulations. Shieldalloy II, 707 F.3d 

at 375. Shieldalloy’s counsel acknowledged at oral argument 

that New Jersey’s program is compatible with NRC 

regulations if we accept NRC’s reading of § 20.1403(a), 

which we do. The NRC’s reasonable interpretation of 

§ 20.1403, which is owed substantial deference, neither 

conflicts with prior interpretations, nor amounts to a 

convenient litigating position. See SmithKline Beecham 

Corp., 132 S. Ct. at 2166. 

1.

Contrary to Shieldalloy’s argument, 10 C.F.R. 

§ 20.1403(a) does not require the licensee to compare 

radiation doses to the public under restricted release and 

unrestricted release decommissioning plans. Instead, the 

NRC reasonably reads § 20.1403(a) as an eligibility test for 

the licensee to explain why, based on a cost-benefit analysis, 

it should be relieved of its burden to take further remedial 

measures required for unrestricted release. To qualify for 

restricted release, the licensee must first explain why it is not 

further reducing the proposed level of residual radioactivity. 

Order at 13. The licensee establishes its eligibility for 

restricted-use decommissioning only if further reductions in 

residual radioactivity necessary to comply with the provisions 

of § 20.1402 (1) “would result in net public or environmental 

harm,” or (2) “were not being made because the residual 

levels associated with restricted conditions are ALARA.” Id.

(quoting § 20.1403(a)). This “inquiry has nothing whatever 

to do with accomplishing or assessing dose reductions using 
13

restricted release or comparing restricted-release and 

unrestricted-release dose” levels. Id. at 15. 

The NRC explained how its reading gives full effect to 

the language of the regulation, which focuses solely on 

“further reductions in residual radioactivity” necessary to 

accomplish unrestricted release under the provisions of 

§ 20.1402. Order at 12. NRC regulations define “residual 

radioactivity” as the “radioactivity in structures, materials, 

soils, groundwater, and other media at a site resulting from 

activities under the licensee’s control.” 10 C.F.R. § 20.1003. 

While it is possible to reduce the doses of radioactivity to the 

public from residual radioactivity using controls or 

engineering associated with restricted use, the NRC explained 

that “it is not possible to reduce ‘residual radioactivity’ itself 

simply by taking these steps.” Order at 12-13 (emphasis in 

original). Instead, a licensee can only reduce residual 

radioactivity by physically removing radioactive material 

from the site, which is associated with unrestricted release 

decommissioning under § 20.1402. Id. at 15. Section 

20.1403 therefore requires the licensee to explain why it is not 

cost beneficial to remove additional radioactive waste from 

the site before it can qualify for restricted release. 

This Court previously recognized that “[t]he language of 

§ 20.1403(a) is silent as to why an ALARA analysis of 

restricted release would cause a licensee not to pursue 

unrestricted release.” Shieldalloy II, 707 F.3d at 379. The 

NRC acknowledges that the language of the rule “might, at 

first glance, appear to focus on some defining property of 

restricted release, such as the dose that could be costbeneficially achieved under a licensee’s restricted-release 

plan.” Order at 16. But when the reference to ALARA in 

§ 20.1403(a) is read in connection with the other language of 

the sentence—specifically, why “further reductions in 

residual activity” are not being made—it undermines 
14

Shieldalloy’s dose-comparison reading. Moreover, even 

Shieldalloy concedes (as it must) that the definition of 

ALARA incorporates more than just dose limits because the 

ALARA principle encompasses the reasonable effort for 

radiological protection based on “practical” considerations 

and “quantitative cost-benefit analysis.” Pet. Br. at 34-35. 

Under this broader conception of ALARA as 

encompassing cost-benefit analysis, the NRC rationally 

explained that the ALARA analysis from § 20.1403(a) asks 

whether the proposed residual levels of radioactivity sought to 

be left in place under the restricted use plan are already as low 

as reasonably achievable, “such that ‘further’ removal or 

decontamination would not be cost-beneficial.” Order at 17. 

The licensee thus applies ALARA to analyze the quantitative 

costs and benefits for achieving further reductions in the 

residual levels of radioactivity. And a licensee becomes 

eligible for restricted release if the proposed level of residual 

radioactivity results in doses that exceed the levels allowable

for unrestricted release (25 millirem) under § 20.1402 but is 

nevertheless cost beneficial because it is not possible to 

further reduce the residual radioactivity in a cost-effective 

way. Id. 

The second sentence of § 20.1403(a) buttresses the 

NRC’s broader reading of ALARA as requiring more than 

just a dose-level comparison. The licensee must consider 

“detriments, such as traffic accidents, expected to potentially 

result from decontamination and waste disposal” in the 

ALARA analysis. 10 C.F.R. § 20.1403(a). The inclusion of 

this requirement further confirms and supports NRC’s reading 

that the ALARA analysis in § 20.1403(a) focuses on reducing 

residual radioactivity because traffic accidents resulting from 

decontamination and waste disposal can only occur in

connection with the removal and transportation of materials 

away from the site. Order at 16; see also Shieldalloy II, 707 
15

F.3d at 380 (“Traffic accidents related to waste disposal 

would seem to have little to do with restricted release, which 

involves on-site disposal of radioactive materials.”). On the 

other hand, Shieldalloy’s reading of the first sentence of 

§ 20.1403(a) is “in tension” with the second sentence of the 

regulation because Shieldalloy’s reading would “permit 

restricted release irrespective of the merits of unrestricted 

release.” Shieldalloy II, 707 F.3d at 380. We reject 

Shieldalloy’s reading because it turns the NRC’s wellestablished preference for unrestricted release on its head. 

See id. (citing instances where the NRC has “repeatedly stated 

it holds that preference”).

2.

The NRC’s interpretation of § 20.1403(a) not only 

incorporates its preference for unrestricted release, but is also 

consistent with the NRC’s other regulatory statements. Order 

at 18-23. The NRC enacted § 20.1403(a) “to prevent 

licensees from choosing restricted release,” not to encourage 

it. Resp. Br. 59-60 (emphasis removed). The NRC prefers 

that a licensee decommission its site under § 20.1402 with 

unrestricted release, and that is why there is an eligibility test 

to qualify for restricted release under § 20.1403(a). Id. at 48. 

Shieldalloy’s interpretation would “eviscerate NRC’s 

preference for unrestricted release” because a licensee would 

almost always be able to choose restricted release by showing 

that the removal of waste for unrestricted release is more 

costly than erecting barriers to limit access to the site. Id. at 

59. We therefore reject Shieldalloy’s reading of the 

regulation. 

Shieldalloy mischaracterizes the NRC’s position as a 

convenient, post hoc litigating position that conflicts with the 

NRC’s prior interpretations of § 20.1403(a). Even assuming 

the NRC is advancing its position for the first time in 

litigation (an assumption we do not hold), we still owe 
16

deference to the NRC’s interpretation under Auer, 519 U.S. at 

462-63. With or without deference, we conclude that the 

NRC rationally explained how its current position is 

consistent with prior interpretations of § 20.1403(a). For 

example, the NRC explained that NUREG-1757 references 

“comparisons between restricted and unrestricted release,” but 

it does not refer to a comparison of radiation doses as 

Shieldalloy suggests. Order at 18-19. The comparison relates 

to “regulatory costs avoided”—i.e., the costs avoided under a 

restricted plan can be included as benefits of an unrestricted 

decommissioning plan. Order at 20; see Shieldalloy II, 707 

F.3d at 381 (discussing the cross-reference to Appendix N). 

“In other words, one of the benefits of reducing residual 

levels of radioactivity to levels that do not exceed 25 mrem 

[as required for unrestricted release under 10 C.F.R. 

§ 20.1402] is the avoidance of costs that would otherwise be 

incurred were the licensee to pursue restricted release.” Order 

at 20. Nothing in NUREG-1757 requires a comparison of 

dose levels to the public under restricted and unrestricted 

release. See id. at 21. 

Similarly, the NRC explained that its July 5, 2007 letter 

to Shieldalloy does not call for a comparative dose-analysis. 

The letter simply suggested that Shieldalloy may have 

overestimated the work necessary to achieve unrestricted 

release, which could erroneously bias the ALARA analysis in 

favor of restricted release. Id. at 22-23. We agree with the 

NRC. 

* * * 

Because New Jersey’s regulations are compatible with 

the NRC’s regulations and its reading of § 20.1403(a), we 

conclude that the NRC’s transfer of regulatory authority to 

New Jersey under 42 U.S.C. § 2021 was not arbitrary or 

capricious.
17

III.

For the reasons stated, we deny Shieldalloy’s petition for 

review of the NRC’s order reinstating the transfer of its 

regulatory authority to the State of New Jersey.

So ordered.