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Shieldalloy Metallurgical Corp. v. Nuclear Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

October 14, 2014

SHIELDALLOY METALLURGICAL CORPORATION, PETITIONER
v.
NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS, STATE OF NEW JERSEY, INTERVENOR

Argued: September 12, 2014.

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

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and SENTELLE, Senior Circuit Judge. OPINION filed by Senior Circuit Judge SENTELLE.

OPINION

Page 1206

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 155 (Aug. 5, 2013) (" Order" ), to address concerns raised by this Court in Shieldalloy Metallurgical Corp. v. NRC, 707 F.3d 371, 404 U.S. App. D.C. 73 (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 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

Page 1207

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 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 x-ray typically gives a dose of 10 millirem. Doses in Our Daily Lives, http://www.nrc.gov/about-nrc/radiation/around-us/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 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, 393 U.S. App. D.C. 157

Page 1208

(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 ...


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