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Nuclear Energy Institute, Inc. v. Environmental Protection Agency

July 09, 2004

NUCLEAR ENERGY INSTITUTE, INC., PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



On Petitions for Review of Orders of the Environmental Protection Agency, the Department of Energy, and the Nuclear Regulatory Commission

Before: Edwards, Henderson, and Tatel, Circuit Judges.

Per curiam.

Argued January 14, 2004

Having the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment, nuclear waste has vexed scientists, Congress, and regulatory agencies for the last half-century. After rejecting disposal options ranging from burying nuclear waste in polar ice caps to rocketing it to the sun, the scientific consensus has settled on deep geologic burial as the safest way to isolate this toxic material in perpetuity. Following years of legislative wrangling and agency deliberation, the political consensus has now selected Yucca Mountain, Nevada as the nation's nuclear waste disposal site.

In this case, we consider challenges by the State of Nevada, local communities, several environmental organizations, and the nuclear energy industry to the statutory and regulatory scheme devised to establish and govern a Yucca Mountain nuclear waste repository. Petitioners challenge regulations issued by the three agencies with responsibility for the site: the Environmental Protection Agency (EPA), the Nuclear Regulatory Commission (NRC or Commission), and the Department of Energy (DOE). Petitioners also challenge the constitutionality of the joint resolution through which Congress selected Yucca Mountain as the repository site, as well as certain actions of the President and Energy Secretary leading to approval of the Yucca site.

We conclude: (1) The 10,000-year compliance period selected by EPA violates section 801 of the Energy Policy Act (EnPA) because it is not, as EnPA requires, "based upon and consistent with" the findings and recommendations of the National Academy of Sciences. The remaining challenges to the EPA regulation are without merit. (2) The Nuclear Regulatory Commission's licensing requirements are neither unlawful nor arbitrary and capricious except to the extent that they incorporate EPA's 10,000-year compliance period. (3) The congressional resolution selecting the Yucca site for development represents an appropriate exercise of Congress's Article IV, section 3 authority over federal property. (4) The Department of Energy's and the President's actions leading to the selection of the Yucca Mountain site are unreviewable. All but one of Nevada's challenges to these actions are moot, and the remaining challenge is unripe. Accordingly, we vacate the EPA and NRC regulations insofar as they include a 10,000-year compliance period. We deny or dismiss the remaining petitions for review.

I. BACKGROUND

Since the dawn of the atomic age, the United States has used nuclear fission to generate electricity. Today, approximately twenty percent of the nation's electricity comes from nuclear power. See Recommendation by the Secretary of Energy Regarding the Suitability of the Yucca Mountain Site for a Repository Under the Nuclear Waste Policy Act of 1982 at 1 (Feb. 2002), available at http://www.ocrwm. doe.gov/ymp/sr/sar.pdf [hereinafter "Secretary's Recommendation"]. Although nuclear power burns without emitting harmful greenhouse gases, it produces a potentially deadly and long-lasting byproduct: highly radioactive spent nuclear fuel.

At massive levels, radiation exposure can cause sudden death. National Institutes of Health, Fact Sheet: What We Know About Radiation, at http://www.nih.gov/health/ chip/od/radiation (last visited May 28, 2004). At lower doses, radiation can have devastating health effects, including increased cancer risks and serious birth defects such as mental retardation, eye malformations, and small brain or head size. See Environmental Radiation Protection Standards for Yucca Mountain, Nevada, 64 Fed. Reg. 46,976, 46,978 (Aug. 27, 1999).

Radioactive waste and its harmful consequences persist for time spans seemingly beyond human comprehension. For example, iodine-129, one of the radionuclides expected to be buried at Yucca Mountain, has a half-life of seventeen million years. See COMM. ON TECHNICAL BASES FOR YUCCA MOUNTAIN STANDARDS, NAT'L RESEARCH COUNCIL, TECHNICAL BASES FOR YUCCA MOUNTAIN STANDARDS 18-19 (1995) [hereinafter "NAS REPORT"]. Neptunium-237, also expected to be deposited in Yucca Mountain, has a half-life of over two million years. Id. at 19.

As of 2003, nuclear reactors in the United States had generated approximately 49,000 metric tons of spent nuclear fuel. See Office of Civilian Radioactive Waste Management, Fact Sheet, Nuclear Waste Explained: How Much Nuclear Waste is in the United States, at http://www. ocrwm.doe.gov/ymp/about/howmuch/shtml (last visited June 1, 2004) [hereinafter "How Much Nuclear Waste Is in the United States"]. Most of this waste is currently stored at reactor sites across the country. See United States Environmental Protection Agency, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, Nevada, Final Background Information Document for Final 40 CFR 197 at 5-2 (June 2001) [hereinafter "Final Background Information Document"]. With more than 100 interim storage locations sprinkled across thirty-nine states, over 161 million people reside within seventy-five miles of a nuclear waste storage facility. See Office of Civilian Radioactive Waste Management, Fact Sheet, Nuclear Storage Explained: Current Storage Methods For Radioactive Waste, at http://www.ocrwm.doe.gov/ymp/about/storage.shtml (last visited June 1, 2004). By the year 2035, the United States will have produced 105,000 metric tons of nuclear waste - approximately twice the current inventory. See How Much Nuclear Waste Is in the United States.

In 1982, responding to growing quantities of radioactive waste and their potentially deadly health risks, Congress enacted the Nuclear Waste Policy Act (NWPA), directing the federal government to assume responsibility for permanently disposing of the nation's nuclear waste. Pub. L. No. 97-425, 96 Stat. 2201 (1982) (codified as amended at 42 U.S.C. §§ 10101-10270 (2000)). The NWPA put the United States on course to using geologic repositories buried deep below the earth's surface to house its nuclear waste. To finance the creation and operation of such repositories, the NWPA established the Nuclear Waste Fund to ensure that "the costs of carrying out activities relating to the disposal of [radioactive] waste and spent fuel will be borne by the persons responsible for generating such waste and spent fuel." 42 U.S.C. § 10131(b)(4) (2000). Accordingly, the NWPA required nuclear energy producers to pay assessments into the Fund based on the amount of electricity they generate. See id. § 10222(a), (c) (2000).
The NWPA assigned distinct regulatory roles to the Department of Energy, the Environmental Protection Agency, and the Nuclear Regulatory Commission. Congress charged DOE with selecting, designing, and ultimately operating the repository. See id. §§ 10132-10134 (2000). It required EPA to establish generally applicable standards for protecting the environment from releases of radioactive materials, id. § 10141(a) (2000), and directed NRC to assume responsibility for licensing a DOE-proposed repository, id. § 10141(b).
The NWPA also established a multi-stage process for DOE to select an appropriate host site. The Act required the Secretary of Energy to begin by issuing general site-selection guidelines, id. § 10132(a), that DOE would then use to determine which candidate sites to recommend for intensive investigation, known as "site characterization," id. § 10132(b). Based on these guidelines, the Secretary was directed to nominate at least five sites, id. § 10132(b)(1)(A), and then to narrow the field to three for the President's consideration, id. § 10132(b)(1)(B).

Once the President approved the nominated sites, the Secretary was required to undertake site-characterization activities at each location. NWPA § 113(a) (codified as amended at 42 U.S.C. § 10133(a)). The NWPA also directed DOE, as part of its site-characterization program, to issue "criteria" for determining whether the candidate sites were "suitab[le]" for housing a waste repository. 42 U.S.C. § 10133(b)(1)(A)(iv). After completing the intensive sitecharacterization process, the Secretary was authorized to submit to the President, together with a final environmental impact statement, a recommendation that he approve one of the suitable sites for development. NWPA § 114(a)(1) (codified as amended at 42 U.S.C. § 10134(a)(1)).

Under the NWPA, once the President approved a site, he would then transmit his recommendation to Congress. Id. § 114(a)(2) (codified as amended at 42 U.S.C. § 10134(a)(2)). The state within which the recommended site was located could then submit a "notice of disapproval" to Congress, an action that would effectively end the development process with respect to that site unless Congress passed a joint resolution overriding the state's disapproval and approving the site. See 42 U.S.C. § 10136(b)(2) (2000).

Pursuant to this statutory regime, DOE promulgated siteselection guidelines in 1984 and applied them to nominate five candidate sites for characterization. Based on these guidelines, the Energy Secretary then recommended three sites to the President: Deaf Smith County, Texas; Hanford, Washington; and Yucca Mountain, Nevada. See Nevada v. Watkins, 939 F.2d 710, 713 (9th Cir. 1991). The President then approved each for characterization. Id.

In 1985, EPA promulgated 40 C.F.R. part 191, general health and safety standards to govern an eventual waste repository. EPA later revised these standards in response to a First Circuit decision remanding aspects of the regulation. See Natural Res. Def. Council, Inc. v. United States EPA, 824 F.2d 1258 (1st Cir. 1987) ( NRDC v. EPA ). NRC then issued generic licensing standards in 10 C.F.R. part 60.

In 1987, however, because characterizing three separate sites was becoming both costly and time-consuming, Congress departed from the NWPA's original site-selection scheme and directed, through the Nuclear Waste Policy Amendments Act (NWPAA), that the nation's nuclear waste program focus exclusively on Yucca Mountain, Nevada. See Pub. L. No. 100-203, §§ 5001-5065, 101 Stat. 1330, 1330-227 to 1330-255 (1987) (codified in scattered sections of 42 U.S.C.). Located in the arid Nevada desert approximately 100 miles northwest of Las Vegas, Yucca Mountain sits on the Nevada Test Site, the nation's former nuclear bomb testing range. Under the NWPAA, Yucca became the only site that DOE could lawfully characterize. See 42 U.S.C. § 10133(a) (requiring the Energy Secretary to "carry out ... appropriate site characterization activities at the Yucca Mountain site"); id. § 10172(a)(1)-(2) (2000) ("The Secretary shall provide for an orderly phase-out of site specific activities at all candidate sites other than the Yucca Mountain site ... [and] shall terminate all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site....").

In 1992, Congress directed DOE's sister agencies, EPA and NRC, to focus their regulatory attention on Yucca Mountain as well. Through the Energy Policy Act, Congress required EPA to promulgate, based on the recommendations of the National Academy of Sciences, site-specific standards for Yucca Mountain, and ordered NRC to modify its generic technical requirements and criteria to bring them into conformity with EPA's Yucca-specific rule. Pub. L. No. 102-486, § 801, 106 Stat. 2776, 2921-23 (1992) (codified at 42 U.S.C. § 10141 note (2000)). At about the same time, Congress exempted the Yucca Mountain site from EPA's part 191 generally applicable environmental regulations. See Waste Isolation Pilot Plant Land Withdrawal Act, Pub. L. No. 102-579, § 8, 106 Stat. 4777, 4786-88 (1992). With the enactment of the NWPA, the NWPAA, and EnPA, the stage was set for the promulgation of the regulations and the adoption of the joint resolution challenged in this case.

Acting pursuant to EnPA, both EPA and NRC promulgated standards to govern the Yucca Mountain repository. EPA issued 40 C.F.R. part 197, establishing health and safety standards that require DOE to limit radiation releases from the repository for 10,000 years. See Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 66 Fed. Reg. 32,074 (June 13, 2001) (codified at 40 C.F.R. pt. 197 (2004)). Shortly thereafter, NRC issued Yucca-specific licensing standards in 10 C.F.R. part 63. See Disposal of High-Level Radioactive Wastes in a Proposed Geologic Repository at Yucca Mountain, Nevada, 66 Fed. Reg. 55,732 (Nov. 2, 2001) (codified at 10 C.F.R. pt. 63 (2004)).

DOE also focused its attention on the Nevada site, issuing new site-suitability criteria specific to Yucca Mountain. See 10 C.F.R. pt. 963 (2004). Pursuant to these criteria and a final environmental impact statement, the Energy Secretary found Yucca Mountain suitable for a repository, concluding that a Yucca facility is "likely to meet applicable radiation protection standards." Secretary's Recommendation at 26. Based on that finding, the Energy Secretary recommended Yucca Mountain to the President for development as the nation's underground nuclear waste repository. Id. at 6. Pursuant to NWPA procedures, the President then recommended Yucca to Congress. Objecting, Nevada submitted a notice of disapproval, to which Congress responded by passing a joint resolution approving the development of a repository at Yucca Mountain. See Pub. L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. § 10135 note (Supp. IV 2004)).

As currently designed, the Yucca Mountain waste repository will house up to 70,000 metric tons of radioactive waste deep underground. See 66 Fed. Reg. at 32,081. DOE projects that ninety percent of the waste destined for Yucca Mountain will be spent nuclear fuel from commercial nuclear power plants. See id. The remaining ten percent will be high-level radioactive waste left over from the nation's nuclear weapons program. See id.

To isolate this waste for the epochal years required - by comparison, human history has been recorded for only 5000 years, see id. at 32,099 - the disposal system's overall design contemplates two types of barriers. First, "engineered" barriers, which include waste packages consisting of metal cylinders protected by drip shields, will surround the waste and protect it from water infiltration. See Office of Civilian Radioactive Waste Management, Yucca Mountain Project, Repository Concept: Engineered Barriers, at http:// www.ocrwm.doe.gov/ymp/about/ebarriers.shtml (last visited June 1, 2004). These packages will sit in a complex of over fifty horizontal tunnels, each over sixteen feet wide, 2000 feet long, and reinforced with steel sets, rock bolts, and wire mesh. See Office of Civilian Radioactive Waste Management, Yucca Mountain Project, Repository Concept: Tunnel Layout and Design, at http://www.ocrwm.doe.gov/ymp/about/tunnels. shtml (last visited June 1, 2004). These tunnels are designed not only to keep water and falling rocks from reaching the waste canisters, but also to manage the heat the waste will generate. See id. Second, the disposal system's "natural" barriers, i.e., the characteristics of the rock formations under Yucca Mountain, are intended to protect the waste from water infiltration and to dilute radiation releases expected to occur from leakage of the engineered barriers or from their failure thousands of years from now. See Office of Civilian Radioactive Waste Management, Fact Sheet, Nature and engineering working together for a safe repository, at http://www.ocrwm.doe.gov/factsheets/doeymp0203.shtml (last visited June 1, 2004). DOE plans to construct the repository tunnels in a thick layer of rock 1000 feet below the surface and 1000 feet above the water table. See id. The Energy Department expects that this surrounding rock will both limit water from seeping into the waste packages and delay radioactive particles from migrating into the human environment. See id.; 66 Fed. Reg. at 32,087. Decades or even centuries after beginning to bury waste at Yucca Mountain, DOE will permanently close the repository by sealing off all openings to the surface. See Secretary's Recommendation at 7.

Before us now are challenges to four aspects of the statutory and regulatory regime governing the Yucca Mountain repository. First, the State of Nevada and various environmental groups (Natural Resources Defense Council, Inc., Public Citizen, Citizen Alert, Nevada Nuclear Waste Task Force, Nevada Desert Experience, Citizen Action Coalition of Indiana, and the Nuclear Information and Resource Service) challenge EPA's radiation-protection regulation as insufficiently protective of public health and safety. The Nuclear Energy Institute, Inc. (NEI), a trade association representing the nuclear energy industry, challenges EPA's ground-water standard, claiming it to be both unnecessary and unlawful. Second, Nevada, Clark County, and the City of Las Vegas attack NRC's licensing-criteria rule as arbitrary, capricious, and contrary to law. Third, Nevada, Clark County, and the City of Las Vegas challenge the constitutionality of the congressional resolution selecting the Yucca Mountain site, arguing that Congress impermissibly singled out the State to bear the unique burden of housing the nation's nuclear waste. Fourth, Nevada, Clark County, and the City of Las Vegas attack DOE's part 963 site-suitability criteria, the Energy Secretary's and President's decisions to recommend Yucca Mountain for development as the nation's waste repository, and the Energy Department's Final Environmental Impact Statement. We consider each challenge in turn.

II. THE EPA CASES

A. The EPA Rule: 40 C.F.R. part 197

Through the 1992 Energy Policy Act, Congress required EPA to establish site-specific standards for a repository at Yucca Mountain. The statute provides:

[T]he [EPA] Administrator shall, based upon and consistent with the findings and recommendations of the National Academy of Sciences, promulgate, by rule, public health and safety standards for protection of the public from releases from radioactive materials stored or disposed of in the repository at the Yucca Mountain site. Such standards shall prescribe the maximum annual effective dose equivalent to individual members of the public from releases to the accessible environment from radioactive materials stored or disposed of in the repository. The standards shall be promulgated not later than 1 year after the Administrator receives the findings and recommendations of the National Academy of Sciences ... and shall be the only such standards applicable to the Yucca Mountain site.

EnPA § 801(a)(1).

Acting pursuant to this authority, EPA promulgated a rule, codified at 40 C.F.R. part 197, establishing a trio of public health and safety standards to govern DOE's nuclear waste disposal activities at Yucca Mountain. Together, these standards are designed to protect both individuals living near the disposal site and local ground-water supplies from excessive radiation contamination.

The rule begins by prescribing an "individual-protection standard" that requires the Energy Department, as a condition of receiving an NRC license, to show that the Yucca Mountain disposal system will sufficiently contain radiation to protect a hypothetical person living adjacent to the site from excessive exposure to radiation releases. The standard provides:

The DOE must demonstrate, using performance assessment, that there is a reasonable expectation that, for 10,000 years following disposal, the reasonably maximally exposed individual receives no more than an annual committed effective dose equivalent of 150 microsieverts (15 millirems) from releases from the undisturbed Yucca Mountain disposal system. The DOE's analysis must include all potential pathways of radionuclide transport and exposure.

40 C.F.R. § 197.20 (2004). This "reasonably maximally exposed individual" (RMEI) represents a theoretical person living in the "accessible environment," id. § 197.21 (2004), i.e., any point outside the "controlled area," an area no greater than 300 square kilometers around the repository, id. § 197.12 (2004). The RMEI is designed to have lifestyle characteristics (such as water and food consumption habits) that would expose him or her to "reasonably maximal" exposure levels. See 66 Fed. Reg. at 32,092. The individualprotection standard expresses the maximum doses the RMEI may incur in terms of an "annual committed effective dose equivalent," a methodology that calculates an overall exposure dose by assigning weighting factors to account for organs' relative sensitivities to radiation. See 40 C.F.R. § 197.2 (2004) (defining "effective dose equivalent" as "the sum of the products of the dose equivalent received by specified [human body] tissues following an exposure of, or an intake of radionuclides into, specified tissues of the body, multiplied by appropriate weighting factors").

The rule's second standard, the "human-intrusion standard," requires DOE to show, among other things, a reasonable expectation that the RMEI will receive no more than a specified dose of radiation even if humans drill, intentionally or otherwise, into a waste package during the 10,000-year period immediately following disposal. Id. § 197.25(a) (2004).

The third standard, the "ground-water-protection standard," requires DOE to demonstrate that the Yucca Mountain disposal system will contain radiation sufficiently well to protect ground water outside the controlled area from excessive contamination. Specifically, the rule provides:

The DOE must demonstrate that there is a reasonable expectation that, for 10,000 years of undisturbed performance after disposal, releases of radionuclides from waste in the Yucca Mountain disposal system into the accessible environment will not cause the level of radioactivity in the representative volume of ground water to exceed the limits in ... Table 1.

Id. § 197.30 (2004). Table 1, in turn, specifies maximum permitted contamination levels for three different types of radionuclides, which correspond to the maximum contaminant levels (MCLs) that EPA established under the Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f to 300j-26 (2000). See 66 Fed. Reg. at 32,106. For example, DOE must demonstrate that "[c]ombined beta and photon emitting radionuclides" will not exceed four millirems per year. 40 C.F.R. § 197.30 (Table 1). Measured according to "critical organ dose" methodology, these MCLs establish maximum radiation doses by reference to the part of the body most sensitive to the regulated radionuclide. See National Primary Drinking Water Regulations; Radionuclides; Notice of Data Availability, 65 Fed. Reg. 21,576, 21,603 (Apr. 21, 2000); National Primary Drinking Water Regulations; Radionuclides, 65 Fed. Reg. 76,708, 76,716 (Dec. 7, 2000); United States Environmental Protection Agency, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, Nevada (40 CFR Part 197) - Final Rule, Response to Comments Document 6-21 (June 2001) [hereinafter "Response to Comments"]. The "representative volume" referred to in the ground-water standard must include the highest concentration of radiation in the "plume of contamination" outside the controlled area. 40 C.F.R. § 197.31(a)(1) (2004).

To obtain a license to dispose of waste at Yucca Mountain, the Energy Department "must demonstrate to NRC that there is a reasonable expectation of compliance" with each of these three protection standards. Id. § 197.13 (2004). To account for changing conditions during the 10,000 years following disposal, EPA requires DOE to "vary factors related to geology, hydrology, and climate based upon cautious, but reasonable assumptions." Id. § 197.15 (2004). In contrast, the Energy Department must hold constant "changes in society, the biosphere (other than climate), human biology, or increases or decreases in human knowledge or technology." Id.

As to the period beyond the first 10,000 years, the rule requires DOE to calculate the maximum radiation exposures the RMEI will incur and then include the results of this calculation in its environmental impact statement as an indicator of long-term disposal system performance. Id. § 197.35 (2004). "No regulatory standard," however, "applies to the results of this analysis." Id.

In their petition for review, the State of Nevada, the Natural Resources Defense Council (NRDC), and the other environmental groups (throughout section II of this opinion, we shall refer to this set of petitioners as either "Nevada" or "the State") first challenge part 197's 10,000-year compliance period, claiming that it both conflicts with EnPA and is arbitrary and capricious. They also argue that EPA arbitrarily and capriciously drew the controlled area's boundaries, that the size of the controlled area violates the Safe Drinking Water Act, and that the rule impermissibly defines the term "disposal." For its part, the Nuclear Energy Institute challenges EPA's decision to add a separate ground-water standard to part 197, arguing that the standard contravenes EnPA and that it is arbitrary and capricious.

B. Challenges Brought by Nevada and Environmental Petitioners

1. Jurisdiction

Before addressing the merits of Nevada's petition, we must consider two jurisdictional issues. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 101-02 (1998) (holding that federal courts must ensure that they have jurisdiction before considering the merits of a case). The first, relating to subject matter jurisdiction, arises because although the Hobbs Act, the jurisdictional statute invoked by all parties, gives courts of appeals exclusive jurisdiction to review orders issued by a host of federal agencies - including the Atomic Energy Commission (AEC), the Federal Communications Commission, and the Federal Maritime Commission - the Act nowhere mentions the Environmental Protection Agency. See 28 U.S.C. § 2342 (2000). Even so, we believe that the Act's conferral of jurisdiction over rules issued by the nowdefunct AEC gives us jurisdiction to entertain the petitions in this case.

The Hobbs Act authorizes courts of appeals to review "all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42." Id. § 2342(4). In turn, section 2239 makes reviewable "[a]ny final order [of the Atomic Energy Commission]," 42 U.S.C. § 2239(b) (2000), that is entered in "any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees," id. § 2239(a)(1)(A). The AEC's authority to establish environmental standards to protect the public from radiation exposure, however, has since been transferred to EPA, and the AEC has been abolished. See Reorganization Plan No. 3 of 1970, § 2(a)(6), reprinted in 5 U.S.C. App. 1 (2000) (transferring to the EPA Administrator the "functions of the Atomic Energy Commission ... administered through its Division of Radiation Protection Standards, to the extent that such functions of the Commission consist of establishing generally applicable environmental standards for the protection of the general environment from radioactive material"); 42 U.S.C. § 5814(a) (2000) (abolishing the AEC). Given this transfer of authority, at least three circuits have held that EPA action undertaken pursuant to EPA's AEC-transferred authority is reviewable under the Hobbs Act as if undertaken by the AEC itself. See Watkins, 939 F.2d at 712 n.4 (stating that EPA's generic health and safety standards for nuclear waste repositories are reviewable under 42 U.S.C. § 2239(b)); NRDC v. EPA, 824 F.2d at 1267 n.7 (same); Quivira Mining Co. v. United States EPA, 728 F.2d 477, 481-84 (10th Cir. 1984) (finding Hobbs Act jurisdiction over EPA regulations addressing radiation releases from uranium fuel cycle operations). Going one step further, this circuit has held that agency action that "derives" from transferred authority is also reviewable under the Hobbs Act. See Aulenbeck, Inc. v. Fed. Highway Admin., 103 F.3d 156, 164-65 (D.C. Cir. 1997) (holding that the court had Hobbs Act jurisdiction to review Transportation Department rules addressing certain safety requirements because the agency's power to issue those requirements "derive[d] in part" from its transferred authority and because actions taken pursuant to that transferred authority were subject to Hobbs Act review). This is just such a case.

In issuing its Yucca Mountain standards, EPA acted pursuant to authority derived from its AEC-transferred powers. When Congress, acting through EnPA section 801, required EPA to issue Yucca-specific, radiation-protection standards, it built on EPA authority - transferred from the AEC - to promulgate generally applicable standards to protect the public from radiation. See H.R. CONF. REP. NO. 102-1018, at 390 (1992), reprinted in 1992 U.S.C.C.A.N. 2472, 2481 ("Section 801 [of EnPA] builds upon [the] existing authority of the [EPA] Administrator to set generally applicable [radiationprotection] standards...."). Because EPA's authority to promulgate its Yucca rule thus "derives" from its AEC-transferred powers, we may consider petitioners' challenge to part 197 under our Hobbs Act jurisdiction. See Aulenbeck, 103 F.3d at 165.

The second jurisdictional issue concerns EPA's claim that neither Nevada's nor the environmental petitioners' constitutional standing is "self-evident." Respondent's Br. at 21. To establish Article III standing to sue on behalf of their members, NRDC and the other environmental petitioners must show that "(a) [their] members would otherwise have standing to sue in their own right; (b) the interests [they] seek[ ] to protect are germane to [their] purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). Under the first element of this test, the environmental petitioners must show that at least one of their members meets the "irreducible constitutional minimum" of standing, i.e., injuryin-fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "The burden on a party challenging an administrative decision in the court of appeals is to show a substantial probability that it has been injured, that the [respondent] caused its injury, and that the court could redress that injury." Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003) (internal quotation marks omitted). Moreover, the asserted injury must be both "concrete and particularized" as well as "actual or imminent." Lujan, 504 U.S. at 560.

To demonstrate standing, the environmental petitioners rely on declarations by several of their members, including one by Ed Goedhart, a member of petitioners Citizen Alert and the Nuclear Information and Resource Service. See Decl. of Ed Goedhart ¶ 1. Goedhart states that he lives and works in Amargosa Valley, Nevada, eighteen miles from Yucca Mountain. Id. ¶ 2. He alleges that EPA's failure to adopt more stringent radiation-protection standards will permit hazardous radionuclides from the buried waste to contaminate his community's ground-water supplies, causing adverse health effects. See id. ¶¶ 2-7.

These allegations are more than sufficient to give Goedhart standing to sue in his own right. The claimed injury to his ground-water supply is neither hypothetical nor conjectural. Indeed, EPA itself acknowledges that "[t]he boundaries of the town [of Amargosa Valley] include all of the area where the highest potential doses from a repository at Yucca Mountain are anticipated...." Final Background Information Document at 8-13. Although radionuclides escaping from the Yucca repository may not reach Goedhart's community for thousands of years, his injury is "actual or imminent," for he lives adjacent to the land where the Government plans to bury 70,000 metric tons of radioactive waste - a sufficient harm in and of itself. See La. Envtl. Action Network v. United States EPA, 172 F.3d 65, 67-68 (D.C. Cir. 1999) (holding that an environmental group established constitutional standing where its members lived near a landfill into which an EPA regulation allegedly would permit certain hazardous wastes to be deposited). In addition, this harm is "fairly traceable," Lujan, 504 U.S. at 560 (internal quotation marks omitted), to EPA's allegedly lax radiation-protection standards, and favorable relief, i.e., requiring EPA to make more stringent each aspect of the rule that petitioners challenge, would likely redress his harm.

Nor have we any doubt that Goedhart has prudential standing. To establish prudential standing, a party's "grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162 (1997). Goedhart's grievance clearly falls within the Energy Policy Act's "zone of interests," for that Act seeks to ensure that DOE operates the Yucca repository safely, i.e., without endangering the lives or health of the surrounding population. See EnPA § 801(a)(1) (directing EPA to promulgate "public health and safety standards for protection of the public from releases from radioactive materials").

Because the Government does not argue that the environmental petitioners fail either the germaneness or the individual-participation element of associational standing, and because "we [too] have [no] reason to believe that [they] fail[ ] to satisfy [these] latter two requirements," Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002), we conclude that the environmental petitioners have established standing to bring their petition for review. And since only one petitioner requires standing, we need not consider the Government's separate challenge to Nevada's standing. See Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998). We thus turn to the merits of Nevada's petition.

2. The 10,000-Year Compliance Period

Nevada first challenges EPA's decision to establish a compliance period that extends only 10,000 years into the future. According to Nevada, the 10,000-year marker violates EnPA section 801(a) and is arbitrary and capricious under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (2000). We begin and end with Nevada's EnPA challenge.

Section 801(a) of the Energy Policy Act requires EPA to promulgate public health and safety standards for Yucca Mountain "based upon and consistent with the findings and recommendations of the National Academy of Sciences." Chartered by Congress during the Civil War, the National Academy of Sciences (NAS or Academy) serves as the federal government's scientific adviser, convening distinguished scholars to address scientific and technical issues confronting society. See NAS REPORT at vi. EnPA directs EPA to contract with NAS to conduct a study to provide "findings and recommendations on reasonable standards for protection of the public health and safety" from the potential hazards posed by a Yucca Mountain repository. EnPA § 801(a)(2). To undertake the necessary study, NAS convened a committee organized under the auspices of its principal operating arm, the National Research Council. NAS REPORT at vi-vii. That committee retained two consultants, conducted five open meetings to which it invited over fifty scientists and engineers, and reviewed publicly available research compiled by federal, state, and local agencies, among others. Id. at viiviii.

The Academy's work culminated in a 1995 report entitled "Technical Bases for Yucca Mountain Standards." With respect to the length of the compliance period, NAS found "no scientific basis for limiting the time period of the individualrisk standard to 10,000 years or any other value." Id. at 55. According to the Academy, "compliance assessment is feasible for most physical and geologic aspects of repository performance on the time scale of the long-term stability of the fundamental geologic regime - a time scale that is on the order of 10 6 [one million] years at Yucca Mountain." Id. at 6. NAS also explained that humans may not face peak radiation risks until tens to hundreds of thousands of years after disposal, "or even farther into the future." Id. at 2. Given these findings - and central to the issue before us - NAS "recommend[ed] that compliance assessment be conducted for the time when the greatest risk occurs, within the limits imposed by the long-term stability of the geologic environment." Id. at 6 (emphasis omitted). That said, NAS explained that "although the selection of a time period of applicability has scientific elements, it also has policy aspects that we have not addressed," such as the goal of establishing consistent policies for managing various kinds of long-lived, hazardous materials. Id. at 56.

Following issuance of the NAS Report, EPA promulgated its draft part 197 standards in which it proposed a 10,000-year compliance period. In so doing, EPA "request[ed] comments upon the reasonableness of adopting the NAS-recommended compliance period or some other approach in lieu of the 10,000-year compliance period which we favor...." 64 Fed. Reg. at 46,995. DOE, responding to EPA's request, supported the 10,000-year compliance period, claiming that a "significantly longer time period for assessing compliance would be unprecedented, unworkable, and probably unimplementable." Letter from Lake H. Barrett, Acting Director, Office of Civilian Radioactive Waste Management, to United States Environmental Protection Agency 2 (Nov. 1999). By contrast, Nevada submitted comments opposing the 10,000-year marker, urging that EPA adopt a period of compliance covering the time of projected peak doses, as NAS had recommended. See Letter from Robert R. Loux, Executive Director, Office of the Governor, Agency for Nuclear Projects, to United States Environmental Protection Agency 8 (Nov. 23, 1999).

After the comment period closed, EPA promulgated its final rule, in which it adopted a 10,000-year compliance period. Expressly acknowledging that NAS had recommended that the compliance period cover the time when the greatest risk of radiation exposure occurs and that the Academy had found it scientifically possible to predict repository performance for approximately one million years, EPA nevertheless concluded that "such an approach is not practical for regulatory decisionmaking." 66 Fed. Reg. at 32,097. The agency explained:

Despite NAS's recommendation, we conclude that there is still considerable uncertainty as to whether current modeling capability allows development of computer models that will provide sufficiently meaningful and reliable projections over a time frame up to tens-of-thousands to hundreds-of-thousands of years. Simply because such models can provide projections for those time periods does not mean those projections are meaningful and reliable enough to establish a rational basis for regulatory decisionmaking.

Id. Moreover, EPA maintained that selecting a compliance period for the individual-protection standard "involves both technical and policy considerations.... In addition to the technical guidance provided in the NAS Report, we considered several policy and technical factors that NAS did not fully address, as well as the experience of other EPA and international programs." Id. at 32,098. According to EPA, five considerations guided its decision: (1) the agency uses 10,000 years for programs involving the disposal of other long-lived, hazardous materials, (2) the individual-protection requirements in 40 C.F.R. part 191, EPA's generally applicable nuclear waste disposal standards, use such a time frame, and "consistency [is] appropriate because both sets of standards apply to the same types of waste," (3) many international geologic disposal programs use 10,000 years, (4) setting the standard to peak dose times "could lead to a period of regulation that has never been implemented in a national or international radiation regulatory program," and focusing on 10,000 years forces more emphasis on features that humans can control such as repository design, and (5) projecting human exposure levels over long periods of time involves great uncertainty. Id. at 32,098-99. On this last point, EPA stated that "we believe that NAS might not have fully addressed two aspects of uncertainty," specifically (1) "the impact of long-term natural changes in climate and its effect upon choosing an appropriate RMEI," and (2) "the range of possible biosphere conditions and human behavior." Id.

In the final rule's preamble, EPA also explained why it believed that part 197 complied with EnPA's requirement that the rule be "based upon and consistent with" NAS's findings and recommendations. Id. at 32,082-84. That mandate, EPA stated, "does not bind us absolutely to follow the NAS Report. Instead, we used it as a starting point for this rulemaking.... [W]e do not believe the statute forces our rulemaking to adopt mechanically NAS's recommendations as standards." Id. at 32,083. Thus, because part 197 was "guided by the [Academy's] findings and recommendations [in light] of the special role Congress gave it," id., EPA concluded that it had acted in accordance with EnPA's directive.

Challenging EPA's determination, Nevada contends that part 197's 10,000-year compliance period deviates from the NAS Report and that EPA therefore failed to promulgate a rule "based upon and consistent with" NAS's findings and recommendations, as required by EnPA section 801(a). Because Congress has charged EPA with implementing section 801(a) of the Energy Policy Act, we analyze this claim under the two-part test of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Under Chevron 's first step, we ask "whether Congress has directly spoken to the precise question at issue," for if "the intent of Congress is clear, that is the end of the matter.... [T]he court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43. If the statute is "silent or ambiguous with respect to the specific issue," we proceed to Chevron 's second step, asking whether the agency's interpretation "is based on a permissible construction of the statute." Id. at 843. At this stage, although we defer to agency statutory interpretations, "our judicial function is neither rote nor meaningless," Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 752 (D.C. Cir. 2000), and we will reject an interpretation "that diverges from any realistic meaning of the statute," id. at 753 (quoting Massachusetts v. Dep't of Transp., 93 F.3d 890, 893 (D.C. Cir. 1996)) (internal quotation marks omitted).

Beginning at Chevron Step One, then, we ask whether Congress's directive that EPA issue standards "based upon and consistent with the findings and recommendations of the National Academy of Sciences" is clear and unambiguous. In considering this question, we do not write on a clean slate. In a recent case interpreting the Clean Air Act, we observed that "[t]here is no question that the phrase `based on' is ambiguous." Sierra Club v. EPA, 356 F.3d 296, 305-06 (D.C. Cir. 2004), amended by No. 03-1084, 2004 WL 877850 (D.C. Cir. Apr. 16, 2004). Although the words "based on" do not necessarily mean "rest solely on," we concluded, they prohibit actions that "abandon[ ]" or "supplant[ ]." Id. at 306. In another Clean Air Act case, we reached a similar conclusion about the phrase "consistent with," explaining that this "flexible statutory language" requires not "exact correspondence ... but only congruity or compatibility." Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 457 (D.C. Cir. 1996) (per curiam) (describing the phrase "consistent with" as requiring the court to defer to reasonable agency determinations), amended by 92 F.3d 1209 (D.C. Cir. 1996). Likewise, in Natural Resources Defense Council, Inc. v. Daley, we held that a statute requiring fishing quotas to be (among other things) "consistent with" a fishery management plan was ambiguous. 209 F.3d at 754. Because "[t]he statute does not prescribe a precise quota figure," we reasoned, "there is no plain meaning on this point." Id. ("[W]e ... view this case as governed by Chevron Step Two."). Given this case law, we are not free to conclude that section 801(a) clearly and unambiguously answers the precise question before us.

Nor can we discern an unambiguous congressional command from EnPA's legislative history. See id. at 752 ("Under the first step of Chevron, the reviewing court must exhaust the traditional tools of statutory construction to determine whether Congress has spoken to the precise question at issue." (internal quotation marks omitted)). The Conference Report explains:

The Conferees do not intend for the National Academy of Sciences, in making its recommendations, to establish specific standards for protection of the public but rather to provide expert scientific guidance on the issues involved in establishing those standards. Under the provisions of section 801, the authority and responsibility to establish the standards, pursuant to a rulemaking, would remain with the [EPA] Administrator, as is the case under existing law. The provisions of section 801 are not intended to limit the Administrator's discretion in the exercise of his authority related to public health and safety issues.

H.R. CONF. REP. NO. 102-1018, at 391, reprinted in 1992 U.S.C.C.A.N. at 2482. Rather than answering the specific question at hand, this discretion-conferring language supports our view that nothing in section 801(a) specifies precisely how EPA must use the NAS Report.

For its part, EPA insists that Congress actually intended it to adopt a 10,000-year compliance period. In support of this argument, EPA relies on EnPA section 801(a)(2)(C), which directed the agency to engage NAS to examine whether it is possible to predict the probability that humans will breach Yucca Mountain's engineered or geologic barriers over a 10,000-year period. EPA also points out that at the time Congress enacted EnPA, the First Circuit had upheld a 10,000-year compliance period contained in EPA's generic part 191 standards. See NRDC v. EPA, 824 F.2d at 1292-93. By failing to specify an alternate time frame in the Energy Policy Act, EPA argues, Congress tacitly endorsed 10,000 years.

EPA misreads EnPA's contextual clues. Although EnPA mentions 10,000 years in section 801(a)(2), section 801(a)(1) - the provision that requires EPA to issue a Yucca-specific rule - tells the agency exactly how to set any compliance period, i.e., it must be "based upon and consistent with" NAS's recommendations. In view of this express directive, moreover, Congress's failure to establish a compliance period cannot be viewed as tacit approval of the part 191 time frame.

Given section 801's ambiguity, Nevada's challenge turns on whether EPA's 10,000-year compliance period can be reasonably described as "based upon and consistent with" NAS's findings and recommendations. We think it cannot. It would have been one thing had EPA taken the Academy's recommendations into account and then tailored a standard that accommodated the agency's policy concerns. But that is not what EPA did. Instead, it unabashedly rejected NAS's findings, and then went on to promulgate a dramatically different standard, one that the Academy had expressly rejected. Although section 801's "based upon and consistent with" standard does not require EPA to walk in lock-step with the Academy, we think it entirely unreasonable for EPA to have acted inconsistently with NAS findings and recommendations. As in Daley, "[t]his case presents a situation in which the [agency's action] so completely diverges from any realistic meaning of the [statute] that it cannot survive scrutiny under Chevron Step Two." 209 F.3d at 753.

To begin with, there is little question that EPA's 10,000-year compliance period deviates dramatically from the Academy's findings. Most important, NAS unequivocally recommended a standard pegged to the time when radiation doses reach their peak:

We believe that compliance assessment is feasible for most physical and geologic aspects of repository performance on the time scale of the long-term stability of the fundamental geologic regime - a time scale that is on the order of 10 6 [one million] years at Yucca Mountain - and that at least some potentially important exposures might not occur until after several hundred thousand years. For these reasons, we recommend that compliance assessment be conducted for the time when the greatest risk occurs, within the limits imposed by long-term stability of the geologic environment.

NAS REPORT at 6-7. NAS reiterated this conclusion throughout its report: "[W]e recommend ... [t]hat compliance with the standard be measured at the time of peak risk, whenever it occurs," id. at 2 (footnote omitted); "we have recommended that the standard for individual risk should apply at times when the peak potential risks might occur," id. at 55-56; "we see no technical basis for limiting the period of concern to a period that is short compared to the time of peak risk or the anticipated travel time," id. at 56; "[t]he period over which this level of protection should be assessed should extend over the period of duration of hazard potential of the repository, that is, until the time at which the highest critical group risk is calculated to occur, within the limits imposed by the longterm stability of the geologic environment at Yucca Mountain, which is on the order of [one million] years," id. at 67.

Not only did NAS recommend that EPA set its compliance period based on peak risk, but it expressly rejected 10,000 years as a proper benchmark: "The current EPA standard [in part 191] contains a time limit of 10,000 years for the purpose of assessing compliance. We find that there is no scientific basis for limiting the time period of an individualrisk standard in this way." Id. at 6; see also id. at 55 ("[W]e believe that there is no scientific basis for limiting the time period of the individual-risk standard to 10,000 years or any other value."). A 10,000-year limitation, NAS explained, "might be inconsistent with protection of public health." Id. at 55. NAS continued:

[A]s noted in a previous National Research Council study, EPA's 10,000-year time limit ... makes compliance rather easy. This we do not support because ... we see no valid justification for this time limit.... Th[is] ... calculational approach may seem to simplify licensing, but we do not understand how such an exercise can support the finding, required in licensing, that there be no unreasonable risk to the health and safety of the public.

Id. (internal quotation marks omitted) (second and third omissions in original).

Describing its recommendation as differing from a 10,000-year standard, NAS went on to state:

Perhaps the most significant difference between our recommendations and 40 CFR 191 concerns the time period over which the standard is applicable. In 40 CFR 191, the standard applies for a period of 10,000 years. In our proposal, we have specified that the basis for the standard should be the peak risk, whenever it occurs [within the limits imposed by the long-term stability of the geologic environment]. Based on performance assessment calculations provided to ...


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