# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2014 Decided October 14 , 2014

No. 13

- 1259

S HIELDALLOY M ETALLURGICAL C ORPORATION

, P ETITIONER

v.

N UCLEAR R EGULATORY C OMMISSION AND U NITED S TATES OF A MERICA

, R ESPONDENTS

S TATE OF N EW J ERSEY

, I NTERVENOR

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, La ne 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: G ARLAND

, Chief Judge

, S RINIVASAN

, Circuit Judge , and S ENTELLE
, Senior Circuit Judge

. Opinion for the Court filed by Senior Circuit Judge
S ENTELLE

. S ENTELLE
, Senior Circuit Judge : Shieldalloy Metallurgical Corporation petitions for review of a Nuclear Regulatory Commission (“NRC” or “Commission”) order
reins tating 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 ho w 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. When3

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 C ourt in a longstanding dispute over the rules governing what Shieldalloy must do with the radioactive waste at its New field 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 Cr iteria 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
suggest s, 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 o f 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 radio active material to4

e nsure 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 x

ray typically gives a dose of 10 millirem. Doses in Our Daily Lives, http://www.nrc.gov/about

- nrc/radiation/around

u s/doses

- daily

- lives.html (last visited O c t. 1 4 , 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 prot ecting 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
in stall ing 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 Metallu rgical 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 Commission er 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
Jers ey 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 public5

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 n ot 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
decommis sioning 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 pla n 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.
Shield alloy Metallurgical Corp. v. N RC , 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
Jers ey.
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 if6

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.

O n 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 thr ough
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
N ew 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 “‘re spond meaningfully’ to objections raised7

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 “substa ntial deference” and is given “ controlling weight unless it is plainly erroneous or in consistent with the regulation. ” Thomas Jefferso n Univ. v. Shalala , 512 U.S. 504, 51 2 (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 conflict s with prior interpretations or amount s 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 N ew 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 disag ree. As we explain below, we discern no reason to invalidate the NRC’s transfer of regulatory authority. Accordingly, w e 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 lice nsees 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 argu es 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. Sh ieldalloy 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 mus t file to decommission a site, because it only allows the licensee to request “release for unrestricted use” and not restricted use.
See Pet. R eply Br. 26 (discussing the October 3, 2012 version of the form).

This Court previously reject ed Shieldalloy’ s argument “that the New Jersey rules were more stringent but less sa fe ”
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 concl uded that the NRC, “on its second
attempt,

. . . adequately addressed Shieldalloy’s claims arising
out of

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

I

d. We need not revisit that conclusion

. Contrary to Shieldalloy’s argument, New Jersey ’s regulatory regime applies the ALARA principle to9

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 dos es 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 pro gram 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 decommissi on 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 optio n with
al ternative 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 accordan ce with state regulations. See NJRAD Form

- 314 (Revised May 23, 2 014), a v ailable 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

m aterials 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
“restri cted 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 standard s 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 standard s are more stringent than the NRC’s restricted release option . T he 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 milli rem 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 co ntemplated 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 pr eclude 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 under11

the first statutory requirement that t he 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
autho rity 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 r egulations 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 l icensee 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 cost

beneficially 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 mater ials from the site (unrestricted release). Shieldalloy argues that the NRC’s12

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 argumen ts 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 interpretati ons, nor amounts to a convenient litigating position

. S ee S mithKline 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 f or 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 asso ciated with restricted conditions are ALARA.” Id. (quoting § 20.1403(a)). This “inquiry has nothing whatever to do with accomplishing or assessing dose reductions using13

restricted release or comparing rest ricted

- release and
unrestricted

- release dose” lev els. 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 possib le to reduce the doses of ra dioactivity 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 step s.” Order at 12

- 13 (emphasis in original). Inste ad, 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. a t 15. S ection 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 § 20.140 3(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 s ome defining property of restricted release, such as the dose that could be cost

beneficially 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 undermines14

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 li censee becomes eligible for restricted release if the proposed level of residual radioactivity results in doses that exceed the level s allowable for unrestricted release (25 millirem) under § 20.1402 but is nevertheless cost beneficial because it is not po ssible 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
“detrimen ts, 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 , 70715

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, Sh ield alloy’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 irrespecti ve of the merits of unrestricted
release.” Shieldalloy II , 707 F.3d at 380. We reject Shieldalloy’s reading because it turns the NRC’s well

established preference for unrestricted release on its head.
See id. (citing instances where the NRC has “repeat edly 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 § 20.140 3(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 eligibilit y 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, po st 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 owe16

deference to the NRC’s interpreta tion 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
“co mparisons between restricted and unrestricted release,” but it does not refer to a comparison of radiation doses as Shieldalloy suggests. Order at 18

- 1 9. The comparison relates to “regulatory costs a voided”

— i.e., the costs avoided under a restricted plan can be included as benefits of an unrestricted decommissioning plan. Order at 20; se e 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 le vels 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 com parison 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 Shie ldalloy may have overestimated the work necessary to achie ve unrestricted release, which c ould 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 compati ble 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.