N.J. Can’t Interfere With Radioactive Waste Plan

(CN) - The Nuclear Regulatory Commission unraveled 10 years and millions of dollars worth of work spent on a plan to decommission a facility that produced radioactive materials when it transferred regulatory authority to New Jersey, the D.C. Circuit ruled.

Shieldalloy Metallurgical wanted to keep storing radioactive waste at a site in Newfield, N.J., which it used between 1955 and 1998 and had been trying to decommission since 2002. The company spent $2 million between 2007 and 2009 to develop a decommissioning plan.

The NRC rejected two of Shieldalloy's decommissioning plans outright, but was considering a third plan when New Jersey applied for and took over regulatory authority in 2009.

Less than two weeks after taking the reins, New Jersey then rejected Shieldalloy's plans.

To avoid having to transfer the waste to a facility in Clive, Utah, Shieldalloy challenged the transfer of regulatory authority to the state. The company argued that the NRC could only transfer regulatory authority if the state did not interfere with the processing of licensing applications, and that New Jersey resisted Shieldalloy's plan at every stage.

The federal appeals court in Washington, D.C., ruled that the power transfer was an abuse of the NRC's authority, and that the agency's answer to Shielalloy's challenge was "inapposite and woefully incomplete."

The appeals court pointed to a case in Oklahoma where the federal agency transferred regulatory authority to the state but retained jurisdiction over limited sets of sites.

The NRC failed to make a rational connection between the facts and its choice, the D.C. Circuit concluded. The ruling vacated and remanded the agency's regulatory authority transfer.

"Obviously the NRC need not automatically consider every single pending licensing action individually when it considers transfer to a state," Senior Circuit Judge Stephen Williams wrote for the court. "But in this case the NRC had a long history of dialogue and cooperation regarding the termination of a license, the state has been consistently hostile to those termination proceedings, and the regulated entity alerted the NRC not only to the likely interference with decommissioning but also to partial transfer as a possible solution."

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