ELR Citation: 40 ELR 20013
No(s). 09-1268 (D.C. Circ. Nov 9, 2010)

The D.C. Circuit granted a petition challenging the NRC's transfer of regulatory authority over nuclear material to the state of New Jersey. Before transferring authority to a state, the NRC must find that the state's regulatory regime is compatible with the NRC's program. To evaluate the compatibility of the state and federal regulatory programs, the NRC considers 36 criteria. The petitioner, which for a decade has been seeking NRC approval for a plan to decommission its New Jersey facility, argued that New Jersey had not attempted to make appropriate arrangements to guarantee a smooth transition for the pending decommissioning plan. Instead, it argued that New Jersey had challenged its decommissioning process at every stage. This resistance, petitioner contended, was incompatible with criterion 25's commitment to the uninterrupted "processing of license applications." Because the NRC's response to petitioner's comments on criterion 25 failed to draw a "rational connection between the facts found and the choice made," the NRC's transfer was arbitrary and capricious. At the very least, the NRC should have explained how the petitioner's decommissioning process could proceed under the New Jersey regime free of the interference and interruption sought to be avoided by criterion 25 and why a partial transfer of jurisdiction was not an appropriate alternative arrangement.