 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 9, 2012            Decided February 19, 2013

                         No. 11-1449

       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 Nuclear Regulatory Commission


    Matias F. Travieso-Diaz argued the cause for petitioner.
With him on the briefs were Jay E. Silberg, Alison M. Crane,
and Stephen L. Markus.

     Grace H. Kim, Senior Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With her on
the brief were Lane N. McFadden, Attorney, U.S. Department
of Justice, and John F. Cordes, Jr., Solicitor, U.S. Nuclear
Regulatory Commission.
                              2

    Andrew D. Reese, Deputy Attorney General, Office of the
Attorney General for the State of New Jersey, argued the
cause and filed the brief for intervenor.

      Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

      Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

       Opinion concurring in part and dissenting in part filed
by Circuit Judge ROGERS.

     WILLIAMS, Senior Circuit Judge. This case arises from
our remand in Shieldalloy Metallurgical Corp. v. NRC, 624
F.3d 489 (D.C. Cir. 2010). It concerns, above all, an
important question of public safety that demands great clarity
and precision, neither of which the agency has supplied:
What rules govern the means by which the owner of a
licensed nuclear facility may decommission that facility and
dispose of its radioactive materials? The Nuclear Regulatory
Commission claims that it has taken a clear and consistent
approach to answering this question. The clarity and
consistency are not apparent to us.

     The order now under review, Shieldalloy Metallurgical
Corp., CLI-11-12, 74 NRC ___ (Oct. 12, 2011) (“Order”),
presents that issue and several others. All stem from the
interaction between the NRC’s regular decommissioning
process and a statutory provision (§ 2021 of the Atomic
Energy Act, 42 U.S.C. § 2021) authorizing the NRC to
transfer regulatory authority over classes of nuclear materials
located within a state to the government of that state. Except
as to the primary issue just highlighted—the Commission’s
basic standards for decommissioning—we find no legal error
in the Commission’s Order; as to that issue, however, our
                              3

inability to understand the key regulatory materials
purportedly guiding the agency’s exercise of control over
decommissioning requires another remand.


                           * * *

     Petitioner Shieldalloy Metallurgical Corporation is an
industrial company that manufactured metal alloys in
Newfield, New Jersey between 1955 and 1998.                Its
manufacturing process generated radioactive byproducts,
which the company held at the Newfield facility under license
from the NRC. In the early 1990s, Shieldalloy began
consulting with the NRC on the development of a proposal to
decommission the facility and dispose of its radioactive
materials on-site. It proposed that the disposal would be
“restricted,” an NRC term of art requiring special conditions
designed to minimize the risks to public health and safety.
Restricted disposal is in contrast to “unrestricted,” under
which remediation and reduction of radiation levels have
proceeded to the point where there is no need for limits on
public access to the disposal site. See 10 C.F.R. § 20.1003
(definitions of “restricted area” and “unrestricted area”).
These consultations stretched on for many years and
culminated in a formal decommissioning plan, which
Shieldalloy submitted to the agency in 2002.

     The NRC rejected the 2002 plan as technically deficient.
After further consultations with NRC staff, Shieldalloy
submitted a second, revised plan in 2005. The NRC rejected
that plan, too, with comments. In 2006, Shieldalloy submitted
a third plan, which responded to the NRC’s comments, as well
as to NRC guidance on decommissioning of licensed facilities
issued earlier in 2006. The NRC accepted this third plan for
the purposes of technical review, but still sought further
clarification from Shieldalloy on various aspects. In the
                               4

summer of 2009, Shieldalloy submitted a fourth plan that was
responsive to these last inquiries. The agency never reviewed
that document.

     In 2008, while the NRC was reviewing the 2006 plan,
New Jersey applied for a transfer of regulatory authority over
in-state nuclear materials, pursuant to § 2021 of the Act. The
NRC made an initial determination that the transfer to New
Jersey would satisfy § 2021(d)’s requirement that the state’s
regulatory program be “compatible” with that of the NRC,
and sought comments from the public. Shieldalloy filed a
letter asserting incompatibility between the programs. To no
avail: the agreement transferring authority to New Jersey went
into effect in September 2009, barely a month after
Shieldalloy submitted the fourth version of its
decommissioning plan. Less than two weeks later, New
Jersey informed Shieldalloy that its 2009 plan—which the
NRC had forwarded to the state—did not meet the state’s
remediation requirements.

     Fearing that New Jersey would require it to abandon its
plans for on-site disposal and pursue a more expensive off-site
alternative (again, in NRC parlance, “unrestricted”),
Shieldalloy appealed to this court. We agreed with the
company in part and remanded the case to the agency. See
Shieldalloy Metallurgical Corp., 624 F.3d at 489.
Specifically, we found that the NRC had not responded
meaningfully to Shieldalloy’s invocation of criterion 25 of the
Commission’s “Criteria Document:”1

    1
      Criteria for Guidance of State and NRC in Discontinuance of
NRC Regulatory Authority and Assumption Thereof by States
Through Agreement, 46 Fed. Reg. 7540 (Jan. 23, 1981), as
amended by 46 Fed. Reg. 36,969 (July 16, 1981) and 48 Fed. Reg.
33,376 (July 21, 1983). See Shieldalloy, 624 F.3d at 491 & n.1.
                               5

          Existing    NRC      Licenses     and     Pending
    Applications. In effecting the discontinuance of
    jurisdiction, appropriate arrangements will be made .
    . . to ensure that there will be no interference with or
    interruption of . . . the processing of license
    applications, by reason of the transfer.

46 Fed. Reg 7540, 7543 (Jan. 23, 1981). Shieldalloy had
argued that as its license application had already been years in
processing, transfer to New Jersey would clearly interrupt the
process. See Shieldalloy, 624 F.3d at 493. Further,
Shieldalloy had suggested that if the Commission wished to
generally transfer authority over in-state nuclear materials to
New Jersey, there was nothing to prevent it from reserving the
Newfield facility from any such transfer.

     To this twofold claim, the NRC offered a twofold
response. As to the risk of an interruption in seeming
violation of criterion 25, it expressed confidence that there
would be a “smooth transition” in the processing of pending
licensing actions (including decommissioning applications)
because New Jersey’s regulatory scheme recognized existing
NRC licenses and would continue “any licensing actions that
are in progress.” Id. at 494 (quotations removed). As to
Shieldalloy’s preferred solution—excepting Newfield from
the transfer—the NRC claimed that the legislative history of
§ 2021 showed that Congress did not contemplate its allowing
“concurrent regulatory authority over licensees.” 624 F.3d at
493. We rejected both elements of the defense for reasons
elaborated in our earlier opinion. Id. at 493-95.

     Shieldalloy’s initial suit raised a further claim, which we
noted but did not address because Shieldalloy had not raised it
sufficiently with the Commission. See 624 F.3d at 495-97.
This other claim pertained to a cost-benefit analysis principle
embedded in the NRC’s regulatory program called the
                                6

ALARA principle, which, as we explain more thoroughly
below, refers to the requirement that residual radiation at a site
be “as low as reasonably achievable.”

     The core of Shieldalloy’s ALARA claim was that the
New Jersey decommissioning regime, unlike the NRC’s,
requires exhumation and off-site disposal of radioactive
materials even where that course of action would expose the
public to higher doses of radiation than on-site disposal.
Thus, Shieldalloy contended, “while New Jersey’s standards
may be more stringent, they are actually less safe.” 624 F.3d
at 496. And while a Commission policy statement, its
Compatibility Guidance Document,2 allowed transfer where a
state’s standards were “more stringent,” that allowance was
subject to the proviso that the “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.” 62 Fed.
Reg. 46,517, 46,520/2. The same policy statement also
affirmed the NRC’s mission as being to assure that civilian
use of nuclear materials “is carried out with adequate
protection of public health and safety.” Id. 46520/1; see also
Shieldalloy, 624 F.3d at 496. Section 2021(d)(2) itself
requires the state program to be “adequate to protect the
public health and safety.” 42 U.S.C. § 2021(d)(2). In light of
these principles, we found that Shieldalloy’s depiction of the
effects of transfer held out a “troubling prospect.” 624 F.3d at
496.


    2
      Statement of Principles and Policy for the Agreement State
Program; Policy Statement on Adequacy and Compatibility of
Agreement State Programs, 62 Fed. Reg. 46,517 (Sept. 3, 1997).
See Shieldalloy, 624 F.3d at 491 & n.2.
                               7

    On remand, the NRC afforded Shieldalloy a “fresh
opportunity” to comment on the transfer agreement in order to
“assure a full airing of the matter.” Order at 6-7. In its
submission, Shieldalloy of course pursued the issues
occasioning the remand, but it also pursued the contention that
the New Jersey rules were more stringent but less safe.

     The NRC’s Order rejected Shieldalloy’s objections and
reinstated the transfer agreement. Shieldalloy again petitions
us for review. We find that, on its second attempt, the agency
adequately addressed Shieldalloy’s claims arising out of
criterion 25 and the parties’ conflicting interpretations of
§ 2021. The NRC’s response to Shieldalloy’s ALARA claim,
however, appears divorced from the authorities on which it
purports to draw, and accordingly we vacate the Order and
remand the case again for a more responsive analysis of that
issue.


                            * * *

     We begin with the question of concurrent federal and
state jurisdiction under § 2021. On remand the NRC
determined that § 2021 requires it to accept a state’s request
for a partial transfer of regulatory authority if the request
satisfies the conditions laid out in § 2021(d), but forbids the
agency from proposing partial transfers either at the request of
a regulated entity or on its own initiative. In other words, the
NRC reads § 2021 as a grant of authority to accept or reject,
but never to modify, a proposed transfer agreement. See
Order at 8-20.

     Whether § 2021 straightjackets the NRC into treating
state transfer applications on an “all or nothing” basis is
reviewable under Chevron USA, Inc. v. NRDC, Inc., 467 U.S.
837 (1984), which means that, as Entergy Corp. v.
                               8

Riverkeeper, Inc., 556 U.S. 208, 218 (2009), observed, a
“reasonable agency interpretation prevails.”

     As we mentioned in our earlier opinion, there appears to
be a contradiction between § 2021(b), which provides that the
NRC “is authorized to enter into agreements . . . with respect
to any one or more” classes of materials, and § 2021(d),
which states that the agency “shall enter into an agreement”
under § 2021(b) provided the conditions of compatibility,
adequacy and certification are met. 42 U.S.C. § 2021(b) & (d)
(emphases added); see Shieldalloy, 624 F.3d at 495. The
latter provision appears to state an imperative, whereas the
former suggests some flexibility to negotiate which classes of
materials will be governed by the transfer.

     In its Order, the Commission reconciles these two
provisions by reading § 2021(b) as a “general grant of legal
authority” to hand a state authority over designated nuclear
materials, and § 2021(d)’s “shall” as mandating that transfer
when the other statutory criteria are met. Order at 11-14. The
Commission bolsters this reading with references to the
legislative history suggesting a strong congressional
determination to recognize the interests of states. Id. at 14-15.
It also plausibly construes the “any one or more” language of
§ 2012(b) as reflecting no more than an anticipation that
agreements might cover fewer than all the three relevant
categories of nuclear materials at a time. Id. at 16. The
Commission also attributed its earlier approval of a transfer to
Oklahoma of less than all the sites with materials of a specific
class, see Shieldalloy, 624 F.3d at 493-94, to Oklahoma’s
express unwillingness to assume authority over the specific
materials, which the legislative history again suggested might
be a sound basis for accepting a proposal of partial transfer.
Order at 16-20.
                               9

     In other words, the NRC saw § 2021 as conferring
authority to accept but not request partial transfers. We can
imagine contexts where this bright-line distinction would
break down. Suppose, for example, the NRC rejected or made
clear its intent to reject a proposed transfer agreement based
solely on concerns about a single facility. Suppose the state
then intuited that a partial proposal which excluded that
facility would be a shoo-in and decided it was better not to
throw the baby out with the bathwater? Would this not be an
NRC-negotiated partial transfer in substance if not in name?
But even taking into account this conceptual weakness, the
Commission’s interpretive exercise appears reasonable and
consistent with the statutory scheme.

     Shieldalloy argues that the permissive language found at
§ 2021(c)(4) & (j) demonstrates Congress’s intent “for the
NRC to retain flexibility in determining how to fashion and
manage its agreement with a state.” Pet’r Br. 28. But both
seem to cut in favor of the Commission’s view.
Section 2021(j) gives the NRC discretion to suspend “all or
part” of a transfer agreement in the event of an “emergency
situation” or where the state has failed to live up to its
responsibilities under an agreement.         And § 2021(c)(4)
concerns only situations where the agency has determined “by
regulation or order” that the materials over which the state
seeks regulatory authority pose such “hazards or potential
hazards” that they must be disposed under NRC license. 42
U.S.C. § 2021(c)(4). These very narrow provisions for special
treatments tend to confirm the NRC’s view that it has no
general authority to reject part of a state’s qualifying request
for transfer.

     There remains Shieldalloy’s argument that the
Commission violated criterion 25 by failing to ensure that
there would be no interruption in the processing of license
applications. Of course, once the Commission has precluded
                               10

its exercise of any discretion to cut part of a transfer out of a
state’s request, the only remedy would be the seemingly
drastic one of denying the request in full.

     Indeed, if one reads criterion 25 as Shieldalloy contends it
should be read, then the NRC in fact should have rejected
New Jersey’s application once it determined that a partial
transfer was unavailable.         The company argues, not
unreasonably, that where a regulated entity has engaged in an
extensive process of dialogue and collaboration with an
agency in pursuit of specific licensing outcome, then a sudden
relinquishment of regulatory authority to a different sovereign
with a radically different regulatory framework necessarily
constitutes “interference with or interruption of” the
processing of its licensing application.

     We certainly sympathize with Shieldalloy’s frustration at
having been jilted by the NRC after a decade of dogged
courting. But under the extremely narrow standard by which
we review an agency’s interpretation of its own regulations,
see, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994), we are constrained to accept the NRC’s argument
that it has never read criterion 25 as anything other than a
“purely administrative” provision requiring the orderly
transfer of records from the agency to the transferee state.
Order at 30; see generally id. at 28-34. Nothing in the text
plainly forbids the NRC from proceeding with a transfer under
§ 2021 even though a pending license application will meet a
different fate under a state regulatory regime than it would
under the federal equivalent.


                             * * *

     Shieldalloy’s ALARA argument concerns the operation
of that principle in the context of a 1997 NRC final rule on the
                               11

decommissioning of licensed facilities, termed the License
Termination Rule (“LTR”). 10 C.F.R. §§ 20.1401-06. The
LTR applies to a broad range of NRC licenses, including
those required for the operation of nuclear reactors, the
possession of spent fuel and byproduct radioactive materials,
and the disposal and storage of high-level radioactive wastes.
See id. § 20.1401 (stating that the LTR applies to the
decommissioning of licensed facilities under 10 C.F.R. parts
30 (byproduct material), 40 (source material), 50 (production
and utilization facilities), 52 (nuclear power plants), 60 (high-
level radioactive waste), 61 (land disposal of radioactive
waste), 63 (waste disposal in Yucca Mountain), 70 (special
nuclear material) and 72 (spent fuel and other wastes)).
Shieldalloy holds a part 40 license to possess source material
containing uranium and thorium at the Newfield site.
Shieldalloy      Metallurgical       Corporation,     NRC.GOV,
http://www.nrc.gov/info-finder/decommissioning/
complex/shieldalloy-metallurgical-corporation-smc-.html.

     Under the LTR, a site can be decommissioned for either
unrestricted or restricted use. 10 C.F.R. § 20.1402-03; see
also id. § 20.1003 (definition of “decommission”). Again,
unrestricted use describes a site that has been remediated and
at which radiation levels have been reduced to the point where
there is no need to limit public access. Id. §§ 20.1003
(definition of “unrestricted area”), 20.1402. Restricted sites
are those that will be remediated to some point short of the
conditions required for unrestricted use, but where public
health and safety can be ensured through the establishment of
adequate controls. Id. §§ 20.1003 (definition of “restricted
area”), 20.1403. The regulations also put a ceiling on dose
exposure in the event that the institutional controls are “no
longer in effect,” id. § 20-1403(e), a ceiling higher than
Shieldalloy’s estimate of the dose exposure in that event under
its current decommissioning plan. See Order at 38-39.
                               12

     Section 20.1402 of the LTR sets out the conditions under
which a site will be released for unrestricted use on
termination of a license. Section 20.1403 does the same for
restricted release. Under § 20.1402, a licensee can pursue
unrestricted release after reducing residual radiation at the site
to “levels that are as low as reasonably achievable
(ALARA),” and in any event no greater than 25 millirem
(“mrem”). Id. § 20.1402.3 The prerequisites for restricted
release under § 20.1403 are more elaborate, and require the
licensee to arrange and set aside funds for “legally enforceable
institutional controls” that will limit human exposure to no
greater than 25 mrem. Id. §§ 20.1403(b)-(c).

     In addition to these technical instructions, the LTR
requires a licensee seeking restricted release to make what the
NRC calls (Order at 41) an initial showing of “eligibility” set
out at § 20.1403(a):

        A site will be considered acceptable for license
    termination under restricted conditions if:

         (a) The licensee can demonstrate that further
    reductions in residual radioactivity necessary to
    comply with the provisions of § 20.1402 would result
    in net public or environmental harm or were not
    being made because the residual levels associated
    with      restricted  conditions     are    ALARA.
    Determination of the levels which are ALARA must
    take into account consideration of any detriments,
    such as traffic accidents, expected to potentially
    result from decontamination and waste disposal;

    3
        All mrem references are to increments above background
radiation.
                              13

Id. § 20.1403(a) (emphasis added). The NRC characterizes
the “net public or environmental” harm test alluded to in
§ 20.1403(a) as an “abbreviated” form of ALARA that takes
into account only a subset of the costs involved in a full
ALARA assessment. Order at 25-26; Resp. Br. 13-14 n.3, 59-
60 n.13. The parties have focused exclusively on the ALARA
test, and so shall we.

     Shieldalloy argues that the NRC provides for an
eligibility test for restricted release predicated on a
comparative application of the ALARA principle. More
specifically, its response to the Commission’s solicitation of
views on remand argued that the Commission’s rules and
interpretations allow a licensee to employ restricted release if
it would result in a lower radiation exposure than unrestricted
release (which necessarily involves a comparison of the two).
Joint Appendix (“J.A.”) 712, 714-15; Pet’r Br. at 47. In other
words, if we understand Shieldalloy correctly, the proper
application of the emphasized language would entail a
comparison between restricted and unrestricted release, and
the former would win when it yielded lower risks than
unrestricted. By contrast, Shieldalloy asserts, New Jersey
does not contemplate any form of radiation dose comparison
between restricted and unrestricted release, and may require
unrestricted release even where restricted release would have
been safer. On this analysis, and given the preferences for
safety expressed in the statute, the Criteria Document and the
Compatibility Guidance Document, Shieldalloy argues that
the New Jersey rules are not “compatible” with NRC’s, as
required by § 2021(d)(3).

    In its Order and before us, the NRC rejects outright this
reading of § 20.1403(a). It maintains that its regulations
“neither explicitly nor implicitly require a comparison
between the levels of protection afforded by the unrestricted
and restricted decommissioning options.” Order at 37; see
                               14

also Resp. Br. at 57. It further declares that “unrestricted
release and restricted release are simply not susceptible to
being compared meaningfully,” Order at 37, because of the
“uncertainties” associated with restricted release, id.

     As for ALARA, the agency states that the principle’s
operation is confined to comparisons of different remediation
options of the same class—that is, for comparing two
unrestricted-release proposals, or two restricted-release
proposals, but never for comparing a restricted release option
with an unrestricted one. Order at 40-41. The purpose of
what it views as the correct understanding of ALARA, the
agency avows, is twofold: First, it serves as a tool for
measuring the reductions in radiation levels that it will require
below the maxima set out in §§ 20.1402-03 in cases where the
benefits of such additional reductions do not exceed the costs.
Id. 41. Second, through its incorporation into § 20.1403(a) it
provides “a criterion to limit the use of restricted release.” Id.

     With respect to the precise meaning of § 20.1403(a), the
agency tells us that the provision requires unrestricted release,
except where “remediation to the level of 25 mrem per year
for unrestricted release [set forth in § 20.1402] would not be
beneficial from a cost standpoint.” Resp. Br. at 55. The
agency further asserts that the ALARA principle, as used in
§ 20.1403(a), is the analytic prism for such a weighing of
costs and benefits. Order at 25, 41. As explained in its brief,
the NRC sees the role of ALARA in § 20.1403(a) as helping
to ascertain whether even the highest radiation levels
permissible for unrestricted release under § 20.1402 are
attainable in a cost-beneficial manner. Resp. Br. at 59.

     We are quite baffled by the NRC’s current interpretation
of § 20.1403(a). The agency’s order and its brief do not quote
from the provision or make any effort to engage with its text.
Instead, they state in bald and conclusory fashion that the
                              15

regulation does not mean what Shieldalloy says it means.
Unlike the NRC, we do not find the meaning of § 20.1403(a)
self-evident. Rather, we think that its text neither precludes
the reading given to the provision by Shieldalloy nor, at least
without exegesis that is completely missing here, supports that
proposed by the NRC.

     The first sentence of § 20.1403(a) provides that a licensee
is eligible for restricted release if it can prove that the
remedial measures required of unrestricted release “were not
being made because the residual levels associated with
restricted conditions are ALARA.” 10 C.F.R. § 20.1403(a).
Although the passive construction of this clause leaves us to
guess who exactly is not making the residual reductions
required for unrestricted release, we think that it can only be
the licensee or its agents, since the licensee is ultimately
responsible for satisfying the decommissioning requirements
of the LTR. Thus § 20.1403(a) appears to stand for the
proposition that a licensee is eligible for restricted release
upon showing that it has performed an ALARA analysis of
restricted release decommissioning options, and the results of
that analysis have caused it not to pursue unrestricted release.

     The 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. If we accept the NRC’s
assertion that ALARA cannot be used to compare restricted
with unrestricted release, Order at 40-42, however, then the
text yields a key meaning: under § 20.1403(a) a licensee can
qualify for restricted release without having to make any
showing about unrestricted release. In other words, assuming
the NRC definition of ALARA, the availability of restricted
release under § 20.1403 would appear to have nothing to do
with whether unrestricted release can be attained in a cost-
beneficial manner, and everything to do with some property of
restricted release. What that property of restricted release is
                               16

we cannot say, since the NRC’s explanation of the role of
ALARA in § 20.1403(a) discusses only its application to
unrestricted release, and makes no reference to restricted
release. Id.; see also Resp. Br. at 13-15, 54-55, 59.

     Further, the understanding of § 20.1403(a) we have just
sketched out (in which the critical language of § 20.1403(a)
invites attention to some aspect of restricted release) jars with
the NRC’s insistence that it “explicitly expressed a preference
for unrestricted release in adopting” the LTR: the provision
appears to permit restricted release irrespective of the merits
of unrestricted release. Order at 39. The NRC is correct that
it has repeatedly stated it holds that preference. See, e.g.,
Radiological Criteria for License Termination, 59 Fed. Reg.
43,200, 43,216 (proposed August 22, 1994) (“The
Commission expects the licensee to make every reasonable
effort to reduce residual radioactivity to levels that will allow
unrestricted release of the site.”); Radiological Criteria for
License Termination, 62 Fed. Reg. 39,058, 39.069 (July 21,
1997) (“The Commission continues to believe that
unrestricted use is generally preferable for the reasons
noted.”) But such words mean little if they are not reflected
in the text of the rule and the Commission’s other regulatory
pronouncements.

     Of course, a reading of the emphasized language in the
first sentence of § 20.1403(a) as conditioning eligibility for
restricted release solely on some characteristic of restricted
release (i.e., without the comparison with unrestricted release
that Shieldalloy finds implied) seems in tension with second
sentence of the provision, which states that the ALARA
analysis referenced in the first sentence must account for
“consideration of any detriments, such as traffic accidents,
expected to potentially result from decontamination and waste
disposal.” 10 C.F.R. § 20.1403(a). Traffic accidents related
to waste disposal would seem to have little to do with
                              17

restricted release, which involves on-site disposal of
radioactive materials. By contrast, traffic accidents are an
important concern for licensees pursuing unrestricted release,
which ordinarily requires transfer of radioactive materials to
another location. Order at 37-38 (describing restricted and
unrestricted release). Yet the first sentence of § 20.1403(a)
speaks only of “restricted conditions” being ALARA.

     Other NRC regulations and statements pertaining to
ALARA only deepen the confusion. 10 C.F.R. § 20.1003,
which defines key terms used in NRC regulations pertaining
to protection against radiation (which regulations include the
LTR), defines ALARA as “making every reasonable effort” to
cut radiation exposure “as far below the dose limits . . . as is
practical,” with practicality further defined as an open-ended
set of “societal and socioeconomic considerations.” 10 C.F.R.
§ 20.1003. This definition seems to match the NRC’s claim
that ALARA is a device for insisting on cost-beneficial
radiation reductions below maximum dose limits (e.g., 25
mrem for unrestricted release under § 20.1402), but appears
completely alien to the NRC’s reading of § 20.1403(a), under
which ALARA is used to assess the cost-efficiency of
attaining radiation levels at those limits. See Resp. Br. at 59.

     Even harder to square with the NRC’s position are
passages of an NRC policy statement called NUREG-1757,
which the agency describes as a “comprehensive NRC
guidance document” on license termination. Order 24; see
“Consolidated Decommissioning Guidance,” NUREG-1757,
Vol. 2 (Rev. 1, Sept. 2006) (“NUREG-1757”), available at
http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/
sr1757/. The document evinces a clear expectation that a
licensee must compare unrestricted and restricted release in
order to establish eligibility under § 20.1403(a). For example,
Chapter 6 of NUREG-1757, entitled “ALARA Analyses,”
contains the following paragraph:
                               18

    Appendix N of this volume discusses five different
    possible benefits. . . . In most comparisons between
    alternatives in the same class (e.g., both alternatives
    result in unrestricted release), the only important
    benefit should be the collective dose averted. In
    comparisons between restricted and unrestricted
    release, the other benefits can become important.

NUREG-1757 at 6-3 (emphasis added).

     Pursuing this cross-reference to Appendix N, we find
the following passage pertaining to the “benefits” side of
ALARA’s cost-benefit analysis:

    Regulatory Costs Avoided

    This benefit usually manifests in ALARA analyses of
    restricted release versus unrestricted release
    decommissioning goals. . . . When evaluating the
    ability of a licensee’s proposal for restricted release
    according to 10 CFR [§] 20.1403(a), avoiding these
    costs should be included in the benefits of the
    unrestricted release decommissioning alternative.
    These should not be included as costs related to the
    restricted release.

Id. at N-6 (emphasis added).

     These passages do not appear to be the product of
inattentive drafting. NRC officials invoked the same concept
in a letter they sent Shieldalloy after accepting of the
company’s 2006 decommissioning plan for technical review.
That letter, entitled “Request for Additional Information”
(“RAI”), warned Shieldalloy that overestimating the cost of
unrestricted release “would bias the net harm or ALARA
                              19

comparison away from the unrestricted use option.” J.A. at
393.

     These statements from NUREG-1757 and the RAI can
reasonably be read to call for precisely the kind of
comparative dose analysis that Shieldalloy claims is
contemplated by § 20.1403(a). Yet the NRC waves off the
statements as “additional technical information and guidance
on the mechanics of properly performing the ALARA
eligibility analysis” that should be “construed in context.”
Resp. Br. at 61. Then, without any attempt at explaining what
it is in the context that saps these words of their apparent
meaning, the agency abruptly concludes that “[n]one of these
NRC statements . . . supports Shieldalloy’s unprecedented
comparative dose approach.” Id. at 63. As with its discussion
of § 20.1403(a), the agency appears to believe that a mere
declaration of the meaning of disputed text, unsupported by
any analysis, satisfies our standards of review.

    Furthermore, if NUREG-1757 and the RAI mean what
they appear to mean, the Order’s insistence that the choice
between restricted and unrestricted dispositions can never turn
on a direct comparison between the two would appear to be
the sort of “swerve” from prior policy that requires
explanation. Greater Boston Television v. FCC, 444 F.2d
841, 852 (D.C. Cir. 1970); see also Alaska Professional
Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999). Here,
the NRC does not seem troubled by its prior inconsistent
language, nor does it even “display awareness that it is
changing positions.” FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009); cf. General Elec. Co. v. EPA, 53
F.3d 1324, 1333-34 (D.C. Cir. 1995) (finding notice
inadequate where “the regulations and policy statements are
unclear, where the petitioner’s interpretation is reasonable,
and where the agency itself struggles to provide a definitive
reading of the regulatory requirements”); Yakima Valley
                              20

Cablevision, Inc. v. FCC, 794 F.2d 737, 745-46 (D.C. Cir.
1986). This failure to grapple with the past is especially
troubling given the Commission’s total silence on why the
uncertainties involved in restricted/unrestricted comparisons
(alluded to in the Order at 37) are categorically more
impenetrable than those required for comparisons between
different plans of restricted release, which the Commission
views as entirely permissible.

     The NRC trots out the familiar proposition that deference
to an agency’s interpretation of its own rule “is all the more
warranted when, as here, the regulation concerns a complex
and highly technical regulatory program.” Resp. Br. at 53
(quoting St. Luke’s Hosp. v. Sebelius, 611 F.3d 900, 905 (D.C.
Cir. 2010)). But where the agency writes an opaque and
ambiguous rule and then by fiat proclaims its meaning without
any effort to consider its text or dispel its mysteries, the
agency’s insistence on deference is misplaced. “We cannot
defer to what we cannot perceive.” Int’l Longshoremen’s
Ass’n v. Nat’l Mediation Bd., 870 F.2d 733, 736 (D.C. Cir.
1989). Hand-waving about complexity seems especially
unsuitable where the text’s opacity is all of the agency’s
choosing and it concerns a complex regulatory program with
immense public safety implications.

     Our dissenting colleague echoes the Commission’s
assertions in its Order and in its brief. See Dissent at 8-21.
Thus she fully accepts the idea that § 20.1403(a), as a
threshold criterion for use of a restricted release, is
exclusively related to difficulties with accomplishing a
satisfactory unrestricted release—despite the language in
§ 20.1403(a) itself that directs our attention to restricted
conditions. Id. at 17-20. Like the Commission, our colleague
fails to directly engage with the language of § 20.1403(a) in
her defense of this reading. Further, the “exegesis” she points
to in NUREG-1757, see id. at 18, is merely a mathematical
                               21

formula used to determine the lowest cost-effective radiation
levels afforded by a particular remedial approach, which
hardly settles the meaning of § 20.1403(a) or precludes a
reading calling for a comparative-dose analysis—if anything,
the formula seems to facilitate such a comparison.

     Our colleague also suggests that the court has offered “its
own interpretation of § 20.1403(a).” Dissent at 17. But far
from substituting our “judgment for that of the agency,”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43, (1983), we have merely done what courts are
supposed to do with regulatory language—try to explore the
validity of the agency’s interpretation. Deference does not
preclude analysis. In the present case, our study of the text
led to the conclusion that the Commission’s response to
Shieldalloy lacked an apparent textual basis; but that finding
of course does not obligate the NRC to accept Shieldalloy’s
interpretation of § 20.1403(a). Rather, it requires only that the
Commission explain itself in a way that rationally addresses
the concerns we set out above.

     We note finally our dissenting colleague’s contention that
Shieldalloy did not properly raise its ALARA claim before the
Commission. Her conviction appears to turn on Shieldalloy’s
failure to (1) engage in an extensive textual analysis of
§ 20.1403(a); or (2) provide a “technical rationale” in support
of its objections. Dissent at 4-7. As to the first, we think it
unreasonable to expect Shieldalloy to have contested the
Commission’s baffling interpretation of § 20.1403(a) before
that interpretation made its debut in the Commission’s Order.
Given the confusing wording of the provision and the more
straightforward guidance found in NUREG-1757 and the RAI,
we can hardly fault Shieldalloy for eschewing § 20.1403(a) in
favor of an argument framed in terms of ALARA and the
LTR. Of equal importance, our colleague ignores the
extensive back-and-forth between Shieldalloy and the
                              22

Commission over the past decade, including the
Commission’s        review     of     Shieldalloy’s     several
decommissioning plans (cited by Shieldalloy in its comments
to the agency, J.A. at 712 n.20), which spell out Shieldalloy’s
understanding of the ALARA principle in considerable detail.
See, e.g., Decommissioning Plan for the Newfield Facility 75-
92, 154, Report No. 94005/G-28247, Rev. 1 (2005), available
at http://pbadupws.nrc.gov/docs/ML0531/ML053190220.pdf;
see also Supplemental Appendix (“S.A.”) at 27-44, 120-22.
In light of this regulatory history, we are surprised that our
colleague so readily accepts the Commission’s claim that it
had “largely to guess” at the nature of Shieldalloy’s
objections. See Order at 35; Dissent at 4.

     As to Shieldalloy’s failure to provide a “technical
rationale” (a term which neither the Commission nor our
colleague has bothered to define), we do not see how that
omission hamstrung the Commission’s ability to grasp
objections based on the contention that the NRC rules and
directives permitted a licensee to choose the least dangerous
solution. As the Commission itself observed, its rejection of
Shieldalloy’s ALARA claim turned on the company’s
“fundamentally inaccurate understanding of our license
termination requirements,” Order at 36, and not a flawed
engineering analysis. Even assuming otherwise, the reams of
technical data Shieldalloy submitted to the Commission in its
decommissioning plans, see, e.g., S.A. at 3-127, certainly
supplied whatever quantitative detail the Commission might
have needed to appreciate Shieldalloy’s position.



                            * * *

    For the reasons stated, we again find the NRC’s transfer
of authority to New Jersey arbitrary and capricious. We
                            23

therefore grant Shieldalloy's petition, vacate the NRC's
transfer of authority, and remand for proceedings consistent
with this opinion.

                                                So ordered.
     ROGERS, Circuit Judge, concurring in part and dissenting in
part. I join the court in deferring to the interpretation of the
Nuclear Regulatory Commission of its authority under the
Atomic Energy Act, 42 U.S.C. § 2021, to transfer jurisdiction
over Shieldalloy’s Newfield site to the State of New Jersey. As
the court explains, the NRC’s statutory reconciliation is
plausible, and also consistent with legislative history indicating
Congress’s desire to recognize states’ interests as well as the
NRC’s prior state transfer approvals, including to Oklahoma.
Op. at 7–9. I also join the court in concluding that the NRC’s
interpretation of Criterion 25 of its guidance on state transfer
agreements is not arbitrary or capricious or contrary to law. Op.
at 9–10.

     To the extent the court concludes, however, that the NRC’s
transfer to New Jersey is arbitrary and capricious, and again
remands the case, I respectfully dissent. The court inexplicably
excuses Shieldalloy from two fundamental requirements: first,
to raise its challenges to agency action with the agency so it has
an opportunity to respond, and second, to state its challenges on
appeal in more than a skeletal way. Because Shieldalloy has
done neither, despite a remand, and because, in not deferring to
the NRC’s reasonable interpretation of its regulations, the court
has injected a textual analysis of its own, a second remand is
unwarranted. A review of the NRC’s analysis on remand
demonstrates, moreover, that it has offered a reasoned response
to Shieldalloy’s challenges, and I therefore would deny the
petition for review.

                                I.

     In remanding the case to the NRC for a second time, the
court has concluded that the NRC’s response upon remand fails
for lack of clarity. Op. at 2. Indeed, the court cloaks its
disposition vacating the transfer of authority to New Jersey in
concern that the NRC has somehow jeopardized public safety.
                                 2

See id. Yet the administrative record before the court indicates
that any lack of clarity arises not from the NRC’s lack of
articulation, or evidence it has failed to protect public safety, but
from Shieldalloy’s repeated failure to set forth its arguments
with sufficient clarity so that the NRC could respond to them.

     When the court initially remanded the case to the NRC, it
noted that Shieldalloy had failed to raise in its comments to the
NRC that removal of Shieldalloy’s radioactive materials from
the Newfield site in New Jersey to a facility in Utah would result
in greater harms to public health and the environment than
onsite disposal. See Shieldalloy Metallurgical Corp. v. NRC,
624 F.3d 489, 496 (D.C. Cir. 2010). The court then observed
that “the unacknowledged source of Shieldalloy’s criticisms
regarding ALARA [i.e., the As Low As Reasonably Achievable
principle], restricted use, and various standards for
decommissioning” might be the “odd” fact that the License
Termination Rule, 10 C.F.R. §§ 20.1401-06, which prescribes
conditions for decommissioning licensed facilities, “does not
feature in the Criteria Document” that the NRC uses to assess
the compatibility of state and federal regulatory programs. Id.
at 496–97. The court today again recalls that in the first appeal
Shieldalloy raised a “claim pertain[ing] to a cost-benefit analysis
principle embedded in the NRC’s regulatory program called the
ALARA principle,” Op. at 5–6, but that the court did not address
it “because Shieldalloy had not raised it sufficiently with the
Commission.” Id. at 5.

    The court has long instructed what it reaffirmed in
ExxonMobil Oil Corp. v. FERC, 487 F.3d 945 (D.C. Cir. 2007):

              A party must first raise an issue with an agency
              before seeking judicial review. This requirement
              serves at least two purposes. It ensures “simple
              fairness” to the agency and other affected litigants.
                                3

              It also provides this Court with a record to
              evaluate complex regulatory issues; after all, the
              scope of judicial review under the APA would be
              significantly expanded if courts were to adjudicate
              administrative action without the benefit of a full
              airing of the issues before the agency.

Id. at 962 (citations omitted); see also Advocates for Hwy. &
Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136,
1148-50 (D.C. Cir. 2005); United Transp. Union v. Surface
Transp. Bd., 114 F.3d 1242, 1244-45 (D.C. Cir. 1997).

     On remand from this court, the NRC “decided to examine
anew all of the issues surrounding transfer of the Newfield site
to New Jersey and afford Shieldalloy a fresh opportunity to
comment on New Jersey’s agreement-state application.”
Shieldalloy Metallurgical Corp., CLI-11-12, 74 NRC –,
Memorandum and Order at 6–7 (Oct. 12, 2011) (“Mem.”). Both
Shieldalloy and New Jersey submitted new comments.
Thereafter, the NRC reinstated New Jersey’s authority to
regulate the Newfield site finding it “adequate” and
“compatible” with the NRC’s regulatory program “within the
meaning of section 274d and our implementing agreement-state
policies.” Id. at 20 (citing 42 U.S.C. § 2021(d)).1 Among other
things, the NRC described the regulatory framework, ALARA,
the License Termination Rule, and New Jersey’s license


       1
             See Criteria for Guidance of States and NRC in
Discontinuance of NRC Regulatory Authority and Assumption Thereof
by States Through Agreement, 46 Fed. Reg. 7540 (Jan. 23, 1981), as
amended by 46 Fed. Reg. 36,969 (July 16, 1981) and 48 Fed. Reg.
33,376 (July 21, 1983); Statement of Principles and Policy for the
Agreement State Program; Policy Statement on Adequacy and
Compatibility of Agreement State Programs, 62 Fed. Reg. 46,517
(Sept. 3, 1997) (the latter, “1997 Policy Statement”).
                                4

termination program. See id. at 21–28. It recounted
Shieldalloy’s “misunderstandings regarding [the NRC’s]
regulatory approach to license termination and ALARA
principle,” id. at 42, before considering, “in the proper context,”
id., Shieldalloy’s position, “belatedly raised before the court but
not as a comment on the New Jersey agreement,” id. at 34, that
“New Jersey’s license termination regulations are not as
protective as [the NRC’s],” id. at 42.

    Further examination of the NRC’s response on remand is
discussed in Part II, infra. What is significant at this point is
Shieldalloy’s procedural default. On remand the NRC observed:

              Despite the open-ended opportunity we provided
              in this remand proceeding for Shieldalloy to fully
              articulate its position on this and other issues, it
              has presented its “comparative dose” position, and
              its related argument as to ALARA, in summary
              and conclusory fashion, leaving us largely to
              guess at the technical rationale and underlying
              foundation for its position. This is unfortunate,
              given the highly complex and technical nature of
              our license termination regulations. While we
              endeavor to respond fully to Shieldalloy’s
              comparative dose and related ALARA argument
              based on our understanding of them, we are
              mindful of the admonition that “the dialogue
              between administrative agencies and the public is
              a two-way street.”

Id. at 35–36 (quoting Northside Sanitary Landfill, Inc. v.
Thomas, 849 F.2d 1516, 1520 (D.C. Cir. 1988)) (emphasis
added and quotation marks omitted). The record in this court
confirms that on remand Shieldalloy commented, in two short
paragraphs, without providing technical support, that New
                                  5

Jersey’s “[f]ailure to implement the ALARA standard would
allow New Jersey to reject the decommissioning option for the
Newfield Facility that would result in the lowest doses to the
public and the environment.” Response to NRC’s Jan. 3, 2011
Order at 15–16. It cited only 10 C.F.R. § 20.1003, which
defines ALARA. Id. at 15.

     The court today is in the same predicament as the NRC on
remand as a result of Shieldalloy’s conduct. The court states:
“In other words, if we understand Shieldalloy correctly, the
proper application of the emphasized language [in 10 C.F.R.
§ 20.1403(a)2] would entail a comparison between restricted and
unrestricted release, and the former would win when it yielded
lower risks than unrestricted.” Op. at 13 (emphasis added). The
record shows that on remand Shieldalloy never cited 10 C.F.R.
§ 20.1403(a), nor argued that the regulation, part of the License
Termination Rule, either requires a “comparative dose” analysis
or the NRC to approve a decommissioning option (either
unrestricted or restricted) based on the outcome of that analysis.




        2
         Section 20.1403(a) provides that “[a] site will be considered
acceptable for license termination under restricted conditions if:”

        The licensee can demonstrate that further reductions in
        residual radioactivity necessary to comply with the provisions
        of § 20.1402 [standards for unrestricted release] would result
        in net public or environmental harm or were not being made
        because the residual levels associated with restricted
        conditions are ALARA. Determination of the levels which
        are ALARA must take into account consideration of any
        detriments, such as traffic accidents, expected to potentially
        result from decontamination and waste disposal.

10 C.F.R. § 20.1403(a) (emphasis added).
                                6

     Even now, in this second appeal challenging the NRC’s
transfer of authority to New Jersey, it is at best doubtful that
Shieldalloy has properly presented the issues regarding
comparative dose and ALARA. In its opening brief, Shieldalloy
contends, in conclusory fashion, leaving the court to guess at its
rationale, that “there is a need to compare the radiological doses
that would result from the decommissioning of a facility under
unrestricted release and restricted release approaches and to
apply the ALARA principle to select the option that results in
the lowest doses.” Pet’r’s Br. 43. Although not referencing 10
C.F.R. § 20.1403(a) in its comments on remand, Shieldalloy
now contends, summarily, that the regulation requires a
comparison between the two decommissioning approaches. At
most it offers only a conclusory textual analysis of § 20.1403(a)
and never explains why the regulation requires the NRC to
approve one release option over another as a result of such an
analysis. In similar fashion, Shieldalloy has provided no
supporting technical rationale for its ALARA contention. This
court has instructed: “‘It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel’s work, create the ossature for the argument, and put
flesh on its bones.’” Schneider v. Kissinger, 412 F.3d 190, 200
n.1 (D.C. Cir. 2005) (citation omitted); see also Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

     That aside, on appeal Shieldalloy points for the first time to
the NRC’s comprehensive guidance document on
decommissioning, NUREG-1757, and to NRC staff requests for
additional information purportedly in support of its comparative
dose/ALARA contention. Additionally, only in its reply brief
does Shieldalloy suggest that the NRC’s explanation of
§ 20.1403(a) — as requiring a licensee to demonstrate that
remediation to the level of adequate protection to allow
unrestricted release without institutional controls would not be
cost-beneficial, see Resp’ts’ Br. at 55–56, 61 — “ignores the
                                7

second half of 10 C.F.R. § 20.1403(a) after the word ‘or’, that
calls for an ALARA analysis of the restricted release option.”
Reply Br. 15–16. Ordinarily, the court will not address
arguments first raised in a reply brief. See United States v.
Wilson, 605 F.3d 985, 1035 (D.C. Cir. 2010); Students Against
Genocide v. Dep’t of State, 257 F.3d 828, 835 (D.C. Cir. 2001).

     For purposes of this court’s review, one problem is that
identified by the NRC on remand: Shieldalloy failed to provide
the NRC with a textual analysis of § 20.1403(a) or a basis for
concluding that the regulation calls for a comparative ALARA
analysis or requires the NRC to approve a decommissioning
option based on the outcome of that analysis. It also failed to
provide technical support for its claim – a significant failure
because § 20.1403(a) entails the use of ALARA, infra Part II.B.
To that extent it has deprived the court of a record addressing
fully explicated and supported objections to the NRC’s transfer
order. Having had its comparative dose interpretation twice
rejected by the NRC, see Mem. at 35, much less the court’s
observation that Shieldalloy had “not raised [its cost-benefit
claim] sufficiently with the Commission,” Op. at 5 (citing
Shieldalloy, 624 F.3d at 495–97), Shieldalloy had an obligation
on remand to fully present argument and data in response to the
NRC’s reactions to its approach. The second problem is that on
appeal Shieldalloy has not meaningfully cured these
deficiencies. So neither the court nor the NRC is clear about
Shieldalloy’s position (beyond opposing the transfer of authority
and the unrestricted release option as less safe) even though
Shieldalloy is a sophisticated corporate litigant that has had four
opportunities to present its arguments – twice before the NRC
and twice before this court, in addition to opportunities during
the decommissioning proceedings since the early 1990s.
Against this backdrop, the court’s decision to vacate the transfer
order and remand the case again to the NRC is an unwarranted
“windfall” for Shieldalloy.
                                8

                                II.

     All is not lost, however; or at least it should not be.
“[E]ndeavor[ing] to respond fully to Shieldalloy’s comparative
dose and related ALARA argument based on [its] understanding
of them,” Mem. at 35–36, the NRC stated on remand:
“Shieldalloy apparently construes our license termination
regulations as calling for a licensee to compare doses of the
restricted-release and unrestricted-release decommissioning
options and to choose the option that affords the lowest dose.”
Id. at 36 (emphasis added). On appeal, Shieldalloy does not
dispute this interpretation of its position and the NRC addressed
the issue comprehensively, providing a detailed and reasoned
explanation as to how ALARA is used in the license termination
regulations and why New Jersey’s program is compatible with
the federal decommissioning standards. Id. at 34–44.

     Upon reviewing the NRC’s response on remand,
Shieldalloy’s contentions on appeal fail to present grounds upon
which the court can conclude that the NRC failed to offer a
reasoned explanation of its complex regulatory scheme, see
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994);
Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995), or
a reasonable interpretation of its regulations, see Auer v.
Robbins, 519 U.S. 452, 461–63 (1997), or that the transfer of
authority to New Jersey is arbitrary and capricious or contrary
to law, see Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); 5 U.S.C.
§ 706(2)(A). Our review is narrow, and the agency action being
challenged is entitled to a presumption of regularity, see Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 (1977). To appreciate the vacuous nature of
Shieldalloy’s challenge requires an overview of the NRC’s
                                9

responses to Shieldalloy’s comparative dose and ALARA
assertions.

     First, the NRC explained that Shieldalloy’s apparent
argument “is a fundamentally inaccurate understanding of our
license termination requirements and appears to lie at the heart
of Shieldalloy’s claim that New Jersey’s program is not as
protective of the public health and safety as our program with
respect to the Newfield site.” Mem. at 36. The NRC noted,
citing a 44-page staff request, that “this very misunderstanding
. . . was the subject of a number of requests for additional
information by the staff on Shieldalloy’s 2006 decommissioning
plan.” Id. at 36 n.115. Stating its regulations “neither explicitly
nor implicitly require a comparison of the levels of protection
afforded by the unrestricted and restricted decommissioning
options,” the NRC pointed out that “the levels of protection of
unrestricted release and restricted release are simply not
susceptible to being compared meaningfully” because each
option has different methods and attendant risks. Id. at 37.
Given the “inherent complexities and uncertainties associated
with restricted release,” the NRC’s stated preference is for
unrestricted release. Id. at 39. Moreover, the NRC found
Shieldalloy’s own dose projections show the difficulty of
meaningfully comparing doses.

     Second, the NRC explained that the ALARA analysis in its
regulation on restricted release, 10 C.F.R. § 20.1403(a), does not
“compel the selection of one decommissioning option over
another,” id. at 43, but instead acts as an eligibility requirement
to screen out sites that should remediate to unrestricted release,
in furtherance of the NRC’s preference. Id. at 25–26, 39–43.
Because, under its regulatory scheme, adequate protection of
health and safety is accomplished “through satisfaction of the
dose criteria and other conditions for [a] chosen
decommissioning option,” id. at 41, and New Jersey protects
                               10

health and safety through a dose threshold that is more stringent
than the NRC’s, the NRC concluded that New Jersey’s program
is compatible with the federal regulatory scheme. I address each
of these aspects of the NRC’s analysis.

                                A.
     The NRC provided a reasoned explanation as to why its
regulatory scheme does not envision a dose comparison between
restricted and unrestricted decommissioning options. See Mem.
at 36–39. The NRC explained that its “regulations neither
explicitly nor implicitly require a comparison of the levels of
protection afforded by the unrestricted and restricted
decommissioning options” “because the levels of protection of
unrestricted release and restricted release are simply not
susceptible to being compared meaningfully.” Id. at 37. In the
NRC’s view, dose comparison is not meaningful because
“[e]ach option uses significantly different methods to achieve
adequate protection and has significantly different risks and
uncertainties associated with it.” Id.

     The NRC elaborated that restricted release is “far more
complex and involves significantly greater uncertainties than
offsite disposal,” because it “relies on the sustained
effectiveness of institutional controls over a 1000-year
compliance period to restrict future access and use to meet the
25 mrem per year dose requirement.” Id. To wit: Engineering
controls must perform numerous complex functions; monitoring
and maintenance are required; sufficient long-term funding from
an independent third party is also required. Id. For this reason,
the NRC explained, its stated preference is for unrestricted
release. Id. at 39. “Unrestricted release requires the removal of
contamination onsite to the extent necessary to comply with the
dose criteria of 25 mrem per year and transportation of the
contaminated material to an isolated and regulated long-term
disposal site.” Id. at 37. Acknowledging that “[s]ome
                                  11

uncertainties are inherent in these activities,” id. at 37–38, the
NRC explained, however, that they “generally involve[] well-
known and quantifiable handling and associated radiological
impacts on workers and the public over a short time period (one
to two years),” id. at 38. Whereas, “dose estimates from
contaminated slag left onsite [under the restricted release option]
are subject to limitations in understanding the performance of a
disposal system and its institutional and engineering controls
over the course of the 1000-year compliance period.” Id.

     For restricted use, the NRC explained, § 20.1403(a)
provides a licensee with either of two cost-benefit approaches to
demonstrate its eligibility, see Mem. at 25–26, what the NRC
describes on appeal as either “a full cost-benefit analysis that
compares all potential benefits to all potential costs (the
‘ALARA’ analysis), or an abbreviated cost-benefit analysis that
compares all potential benefits to only a subset of potential costs
that excludes the out-of-pocket costs of soil removal,
transportation, and disposal (the ‘net public or environmental
harm’ analysis).” Resp’ts’ Br. 59; see infra Part II.B. No such
demonstration is required for unrestricted release, 10 C.F.R.
§ 20.1402.3 This contrast confirms the NRC’s interpretation of




        3
            Section 20.1402 provides:

        A site will be considered acceptable for unrestricted use if the
        residual radioactivity that is distinguishable from background
        radiation results in a TEDE [total effective dose equivalent]
        to an average member of the critical group that does not
        exceed 25 mrem . . . per year, including that from
        groundwater sources of drinking water, and that the residual
        radioactivity has been reduced to levels that are as low as
        reasonably achievable (ALARA). Determination of the levels
        which are ALARA must take into account consideration of
                               12

its regulations as not envisioning a dose comparison or that such
a comparison dictates the choice of decommissioning method.
While the NRC’s interpretation accounts for the contrasting text,
Shieldalloy’s position does not. Instead, in reply Shieldalloy
takes the anomalous position that, in order to protect public
safety, § 20.1403(a) requires the NRC to allow the
decommissioning option resulting in the lowest ALARA-
produced dose level – but “only when the licensee seeks to
implement the restricted release option,” Reply Br. 19, not if it
seeks to pursue unrestricted release, because the NRC “will
allow th[at] option to be selected without further inquiry,” id.
Shieldalloy ignores that the applicable dose threshold must be
met, in order to provide adequate protection to the public,
regardless of any ALARA analysis. Mem. at 40–41.

     The NRC also addressed Shieldalloy’s dose comparison
position on its own terms, pointing out its flawed factual
premise. The NRC found, first, that Shieldalloy’s statements —
that license termination using onsite disposal for the Newfield
site would result in lower doses to the public than offsite
disposal — “are inaccurate.” Id. at 34–35. Shieldalloy claimed
that this proposition had not been controverted, but the NRC
pointed out that insofar as Shieldalloy’s comparative dose
position was “reflected in its proposed 2005 decommissioning
plan,” that plan was rejected by NRC staff as not being in
compliance with the license termination regulations, and that the
NRC staff’s request for additional information on Shieldalloy’s
proposed 2006 plan likewise indicated rejection of Shieldalloy’s
comparison approach and identified related technical concerns.
Id. at 35.



       any detriments, such as deaths from transportation accidents,
       expected to potentially result from decontamination and waste
       disposal.
                                13

      The NRC found, second, that “Shieldalloy’s own dose
estimates for the Newfield site reflect that it is meaningless to
compare the level of protection between unrestricted release and
restricted release.” Id. at 38 (emphasis added). Shieldalloy
asserted on remand that “terminating the license under restricted
conditions by the method described in the [2009
decommissioning plan] (i.e., isolating the materials onsite under
an appropriate cover) would result in doses to the
decommissioning workers and the general public that are lower
than those that would result from” decommissioning by
Shieldalloy’s proposed method of unrestricted release.
Response to Order at 13.            While acknowledging that
Shieldalloy’s 2009 “plan calculates an infinitesimally small
dose” for restricted release assuming all controls hold, the NRC
found that “when institutional controls are assumed to fail and
the engineered cover is assumed to degrade, Shieldalloy’s filing
shows that the dose estimate would be far greater, up to a
bounding dose of 86 mrem per year” and “well in excess of
Shieldalloy’s dose estimates for unrestricted release.” Mem. at
38–39. In other words, Shieldalloy’s “own dose estimates for
onsite disposal assuming the uncertainty and potential failure of
controls over the long term in actuality show a higher dose.” Id.
at 39. On appeal, Shieldalloy rejects the NRC’s interpretation
of its regulations, summarily asserting that dose comparisons are
possible and meaningful, see Reply Br. 19–20, but it does not
refute the NRC’s finding that by Shieldalloy’s own estimates,
were the cover to degrade, restricted release would expose the
public to a higher dose of radiation than is reflected in its
unrestricted release plan.

                                B.
     The NRC reasonably explained how ALARA functions
under its decommissioning regulations. Noting that “Shieldalloy
has not set forth or explained the basis for its apparent position,”
the NRC concluded, “perhaps it is alluding to our ALARA-
                                14

based eligibility criterion for restricted release.” Mem. at 41
(emphasis added). Further noting “its submission is hardly
clear on this point,” the NRC concluded “Shieldalloy apparently
believes that our ALARA principle compels us to compare
decommissioning options and to allow a licensee to select the
lowest-dose option.” Id. at 40 (emphasis added). The NRC
responded: “This is a fundamental misconception of our
ALARA principle and appears to be the root of Shieldalloy’s
misunderstanding of our approach to license termination.” Id.
Indeed, the NRC explained that “the very premise of
Shieldalloy’s position on ALARA — that our license
termination rule requires a choice to be made between a higher
or lower dose option — is erroneous.” Id.

     First, the NRC explained that the ALARA principle, “either
as a general regulatory principle or as used in our license
termination rule, [does not] incorporate or call for any
comparative analysis of doses from restricted and unrestricted
release.” Id. at 40. Rather, under the rule, the NRC explained,
ALARA has two purposes in license termination: to reduce
doses as low as achievable below applicable dose limits (not to
“compar[e] between achievable doses”), and to provide a
criterion to limit the use of restricted release. Id. at 40–41. The
latter purpose, “effectively, to screen out sites that should be
removing contamination to achieve unrestricted use,” the NRC
continued, is achieved in section § 20.1403(a) through the use
of a cost-benefit analysis to determine initial eligibility for
restricted release. Id. at 41. This eligibility criterion “was
intended to support [the NRC’s] preference for the unrestricted-
release decommissioning option.” Id. Licensees must act to
remediate their sites to the dose threshold in order to terminate
their licenses under either restricted or unrestricted release. Id.
at 24–26. If the threshold is met by limiting access to the site
and the ALARA analysis demonstrates that it would not be cost-
beneficial to remove radioactive materials below the dose
                                15

threshold so that institutional controls are not required, then the
site will be eligible for restricted release decommissioning; to
qualify for unrestricted release, a licensee would need to
undertake sufficient remediation or removal of radioactive
materials so access to the site need not be limited or controlled.
Id. at 24–26, 37, 39, 41; see 10 C.F.R. § 20.1003. Thus, the
NRC explained:

              The ALARA analysis for restricted-release
              eligibility purposes does not and was never
              intended to demonstrate whether one
              decommissioning option affords greater protection
              than another. In fact, because an ALARA analysis
              focuses on dose reductions below what we have
              determined to be necessary for adequate protection
              of the public health and safety, that analysis does
              not go to adequate protection at all. A licensee’s
              demonstration of adequate protection is
              accomplished, instead, through satisfaction of the
              dose criteria and other conditions for its chosen
              decommissioning option.

Id. at 41. Notably ALARA “does not compare or explicitly
analyze any of the uncertainties that affect the level of protection
afforded by a particular disposal option.” Id. at 42.

     Second, the NRC interpreted the ALARA test in
§ 20.1403(a) not to call for comparing doses between release
options, “[n]or [to] compel the selection of one
decommissioning option over another.” Id. at 43. In its opinion,
“the ALARA requirement is irrelevant to whether Shieldalloy
may pursue restricted release over unrestricted release in New
Jersey.” Id. Omission of an ALARA-based criterion for
restricted-release eligibility is, the NRC opined, “immaterial to
[the] adequacy or compatibility” of the New Jersey program
                                   16

because adequate protection is accomplished through the dose
threshold. Id. at 42. The NRC pointed out that New Jersey
“accomplishes th[e] same objective” as the federal scheme does
by the restricted-release eligibility criterion – namely, “to limit
the use of restricted release in license termination” – “by
adopting more stringent . . . as well as more conservative
criteria.” Id. at 42–43; see Radiological Criteria for License
Termination, 62 Fed. Reg. 39,058, 39,069 (July 21, 1997). The
NRC thus reasonably concluded that New Jersey’s license
termination program, which must meet only a Category C level
of compatibility,4 was adequate and compatible.

                               C.
     Notwithstanding the NRC’s reasoned explanation of its
regulatory scheme and reasonable interpretation of its
regulations, including what ALARA is, the court concludes that
a remand is required, principally in light of its own textual
analysis of 10 C.F.R. § 20.1403(a). See Op. at 10–21.
Referencing the NRC’s brief on appeal, the court states that it is
“baffled by the NRC’s current interpretation of § 20.1403(a)”
and that it “do[es] not find the meaning of § 20.1403(a) self-
evident,” but rather concludes that § 20.1403(a) neither
precludes Shieldalloy’s reading “nor, at least without exegesis,”
supports the NRC’s interpretation. Op. at 14–15 (citing Resp’ts’
Br. 55, 59).


        4
              Pursuant to the 1997 Policy Statement, supra note 1,
Agreement States may adopt programs that provide a level of
protection that is “equivalent to, or greater than, the level provided by
the NRC program.” 62 Fed. Reg. at 46,524. Category C elements of
Agreement State programs are required “in order to avoid conflicts,
duplications, gaps, or other conditions that would jeopardize an
orderly pattern in the regulation of agreement material on a nationwide
basis.” Id.; see also Radiological Criteria, 62 Fed. Reg. at 39,079-80,
39,086.
                                17

     Undeterred by Shieldalloy’s defaults, the court engages in
a textual interpretation of § 20.1403(a), Op. at 15–17, noting that
on appeal the NRC discussed ALARA’s role in § 20.1403(a) as
applying only to unrestricted release, not restricted release. Op.
at 16. Section § 20.1403(a) provides — following the “or” —
that a site is acceptable for license termination under restricted
release if “[t]he licensee can demonstrate that further reductions
in residual radioactivity necessary to comply with . . .
§ 20.1402 [unrestricted release] . . . were not being made
because the residual levels associated with restricted conditions
are ALARA.” (emphasis added); see supra note 2. In light of
the italicized text, the court concludes that “the availability of
restricted release under § 20.1403 would appear to have nothing
to do with whether unrestricted release can be attained in a cost-
beneficial manner, and everything to do with some property of
restricted release.” Op. at 15. Hence the court finds confusion
in the text, see id. at 14–17, implying that the final clause should
read unrestricted instead of restricted.

     Ordinarily the court will defer to an agency’s reasonable
interpretation of its regulations, see Auer, 519 U.S. 461–63, and
there is every reason to do so here where the complex regulatory
scheme draws on the NRC’s expertise. The court acknowledges
that its own interpretation of § 20.1403(a) “seems in tension
with [the] second sentence of the provision, which states that the
ALARA analysis referenced in the first sentence must account
for ‘consideration of any detriments, such as traffic accidents,
expected to potentially result from decontamination and waste
disposal.’” Op. at 16 (quoting § 20.1403(a)). That tension does
not exist under the NRC’s interpretation, whereby its regulations
“demand that licensees . . . demonstrate that remediation to the
level of 25 mrem per year for unrestricted release would not be
beneficial from a cost standpoint before allowing them to pursue
restricted-use (onsite) disposal.” Resp’ts’ Br. 55–56; see also
Mem. 25–26, 41. In other words, the licensee must meet the
                                18

applicable dose threshold regardless of the ALARA analysis;
that analysis, however, may reveal that release of the site
without institutional controls (i.e., unrestricted release) is cost-
beneficial. This accords with the NRC’s interpretation that its
regulations do not imply dose comparisons, and instead only
§ 20.1403(a) sets an eligibility requirement because restricted
release “is far more complex and involves significantly greater
uncertainties than offsite disposal.” Mem. at 37.

     The NRC’s “comprehensive guidance document” on
decommissioning, id. at 24, supports the “exegesis” offered by
the NRC. In describing the equation to be used to calculate
doses that are ALARA, Appendix N states that “[t]he residual
radioactivity level that is ALARA is the concentration . . . at
which the benefit from removal equals the cost of removal.”
NUREG-1757, Vol. 2, Appendix N at N-10 (Rev. 1, Sept. 2006).
The calculation of these benefits includes collective doses
averted from a given action and the costs include the monetary
costs to the licensee. Id. at § 6.3 at 6–3 to 6–4. So understood
in light of NUREG-1757, the reference in § 20.1403(a) to a
licensee demonstrating that “further reductions . . . were not
being made because the . . . levels associated with restricted
conditions are ALARA” means that no further radioactive
materials can be cost-beneficially removed, washed away, or the
like so the site can be decommissioned under § 20.1402
(unrestricted release). See id. at N-1 to N-12; see also Mem. at
25–26, 41; Resp’ts’ Br. 55–56, 61. This understanding of
ALARA was embodied in the NRC staff requests to Shieldalloy
for additional information. See e.g., Request for Additional
Information on Shieldalloy’s 2006 proposed decommissioning
plan at 21 ¶ 31. That is, the “levels associated with restricted
conditions are ALARA,” 10 C.F.R. § 20.1403(a) (emphasis
added), when no more actions can be cost-beneficially taken to
meet the unrestricted use criteria.
                                   19

     Consequently, the confusion the court identifies arising
from passages of other NRC regulations and statements is
dispelled. Op. 17–19 (citing the definition of ALARA,
NUREG-1757, and the staff Request for Additional
Information).5 In concluding these materials “can reasonably be
read to call for precisely the kind of comparative dose analysis
that Shieldalloy claims is contemplated by § 20.1403(a),” Op. at
19, the court engages in a recalibration of § 20.1403(a)’s
eligibility requirement. That is not the same as demonstrating
that the NRC’s interpretation is “baffling” or lacking needed
“exegesis,” much less unreasonable and not entitled to
deference. The suggestion of “prior inconsistent language,” id.
at 19, fails for the same reason. Because the interpretation of
§ 1403(a) depends on the use of ALARA, including the equation
set out in NUREG-1757, Shieldalloy’s cursory argument on
remand was inadequate, despite the court’s assertions to the
contrary, Op. at 22.


        5
           Neither the passages in NUREG-1757 nor the staff Request
for Additional Information support Shieldalloy’s position that
§ 20.1403(a) requires a comparative dose analysis. Instead, those
passages relate to the required ALARA analysis of restricted release,
which when properly conducted, will reveal if additional remediation
to meet the requirements of unrestricted release is cost-beneficial. The
court’s conclusion that under the NRC’s view ALARA is used in
§ 20.1403(a) “to assess the cost-efficiency of attaining radiation levels
at those [dose] limits,” Op. at 17 (emphasis in original) overlooks that
the NRC has consistently stated that ALARA is used in § 20.1403(a)
to assess the cost-efficiency of remediating below the applicable dose
threshold for restricted release in order to meet the criteria for
unrestricted release. Mem. at 40–41; Resp’ts’ Br. 55–56. This
accords with the NUREG-1757 guidance in Appendix N at N-1 (“In
order to terminate a license, a licensee should demonstrate that the
dose criteria . . . have been met, and should demonstrate whether it
is feasible to further reduce the levels . . . below those necessary to
meet the dose criteria (i.e., to levels that are ALARA).”).
                                20

     Inexplicably the court protests a lack of textual analysis by
the NRC and the dissent, Op. at 14, 20, when, as discussed here,
in fact the NRC explained, based on the plain text, that
§ 20.1403(a) affords a licensee two alternative ways to
demonstrate its initial eligibility for restricted release. Mem. at
25–26. Further, it explained, licensees that do not demonstrate
either initial eligibility or satisfaction of the remaining criteria
of § 20.1403 “will not ‘be considered acceptable for license
termination under restricted conditions’” and so must prepare
their sites for unrestricted release, the NRC’s preferred
decommissioning option because of its far more well-known and
quantifiable radiological impacts. Id. at 26 (quoting § 20.1403);
see also id. at 37–43. What is more, by explaining the use and
function of ALARA in its license termination regulations, id. at
34–43, the NRC provided additional exposition of the text of
§ 20.1403(a), specifically what “restricted conditions are
ALARA” means. The court ignores that the formula and related
guidance in NUREG-1757, which is used to assess if a
remediation activity “is ALARA,” also elucidates the clause in
§ 20.1403(a) that the court finds “baffl[ing],” Op. at 14; see
supra note 2. And, in examining Shieldalloy’s own dose
estimates for decommissioning, the NRC demonstrated why the
text cannot reasonably be read to call for the dose comparison
envisioned by Shieldalloy.

     Moreover, even assuming, for purposes of argument, that
the NRC’s interpretation of § 20.1403(a) as not contemplating
a comparative dose analysis is unreasonable, which it is not,
neither the court nor Shieldalloy offers a basis on which to
conclude that the NRC’s conclusion that the regulation does not
“compel the selection of one decommissioning option over
another,” Mem. at 43, based on the outcome of an ALARA
analysis, is unreasonable. Instead, as the NRC explained, a
licensee must meet the dose threshold regardless of the outcome
of the ALARA analysis. Id. at 39, 41, 43. So the NRC could
                                21

reasonably conclude that the NRC’s program and New Jersey’s
program are not meaningfully different, let alone incompatible
in regard to safety and the use of ALARA in § 20.1403(a): the
New Jersey program is simply more stringent in using a 15
mrem instead of a 25 mrem threshold, which is permissible for
Category C elements. See supra note 4.

     In sum, the regulatory scheme administered by the NRC is
complex, and further explanation is welcome as a general
principle, but the issues raised by Shieldalloy have been
adequately addressed by the NRC. This is so even though,
because Shieldalloy never referred to § 20.1403(a) in comments
on remand, the NRC had no occasion to explain more than its
purpose and method, but see Op. at 14. Even on appeal
Shieldalloy did not make the textual argument in its opening
brief now provided by the court as the basis for another remand;
neither does it offer that analysis in its reply brief. Although the
court forswears that it is “substituting [its] judgment for that of
the agency,” Op. at 21 (citation and quotation marks omitted), it
clearly is substituting its own textual analysis for the bare
assertions by Shieldalloy, see Schneider, 412 F.3d at 200 n.1.
These circumstances — namely, Shieldalloy’s default on
remand, the NRC’s reasonable explanation of its regulations on
remand, and the court’s acknowledgment that its reading of the
NRC’s brief and its own interpretation of § 20.1403(a) creates an
internal tension, Op. at 16–17 — present an odd basis for another
remand much less a determination that the NRC’s transfer order
is arbitrary and capricious.
