Nuc Engy Inst Inc v. EPA

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2004 Decided July 9, 2004

No. 01-1258

NUCLEAR ENERGY INSTITUTE, INC.,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Consolidated with

01-1268, 01-1295, 01-1425, 01-1426, 01-1516,

02-1036, 02-1077, 02-1116, 02-1179, 02-1196,

03-1009, 03-1058

On Petitions for Review of Orders of the

Environmental Protection Agency,

the Department of Energy,

and the Nuclear Regulatory Commission

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Antonio Rossmann, Geoffrey Fettus, Martin G. Malsch,

and Charles J. Cooper argued the causes for petitioners State

of Nevada and Natural Resources Defense Council, et al.

With them on the briefs were Joseph R. Egan, Charles J.

Fitzpatrick, Howard K. Shapar, Brian Sandoval, Attorney

General, Attorney General’s Office of the State of Nevada,

Marta A. Adams, Senior Deputy Attorney General, Robert J.

Cynkar, Brian S. Koukoutchos, Vincent J. Colatriano, and

William H. Briggs Jr.

John C. Martin argued the cause for petitioner Nuclear

Energy Institute, Inc. With him on the briefs were Jean V.

MacHarg, Susan M. Mathiascheck, Robert W. Bishop, and

Michael A. Bauser.

Christopher S. Vaden, Michele L. Walter, and Ronald M.

Spritzer, Attorneys, U.S. Department of Justice, and Steven

F. Crockett, Special Counsel, U.S. Nuclear Regulatory Com-

mission, argued the causes for respondents. With them on

the briefs were Jeffrey B. Clark, Deputy Assistant Attorney

General, U.S. Department of Justice, G. Scott Williams, John

A. Bryson, and Greer S. Goldman, Attorneys, Karen D. Cyr,

General Counsel, U.S. Nuclear Regulatory Commission, John

F. Cordes Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, and

Marc Johnson, Deputy General Counsel, U.S. Department of

Energy. John C. Cruden, Assistant Attorney General, U.S.

Department of Justice, and Elizabeth A. Peterson, Attorney,

entered an appearance.

Michael A. Bauser argued the cause for intervenor Nuclear

Energy Institute, Inc. With him on the briefs of interve-

nor/amicus Nuclear Energy Institute, Inc. and amicus Na-

tional Association of Regulatory Utility Commissioners were

Robert W. Bishop, James Bradford Ramsay, and Sharla M.

Barklind.

Before: EDWARDS, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.*

* Judge Tatel wrote Parts I and II. Judge Edwards wrote Part

IV.

3

TABLE OF CONTENTS

I. Background

II. The EPA Cases

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

B. Challenges Brought by Nevada and Environmental

Petitioners

1. Jurisdiction

2. The 10,000-Year Compliance Period

3. The Controlled Area

4. The Definition of ‘‘Disposal’’

C. NEI’s Challenge to the Ground-Water Standard

1. Standing

2. Alleged Conflicts with the Energy Policy Act

3. Arbitrary and Capricious Challenge

III. The NRC Cases

A. Jurisdiction and Timeliness

B. Nevada’s Merits Claims

1. Primary Barrier and Multiple Barriers Claims

a. The Primary Barrier Claim

b. The Multiple Barriers Claims

2. Compliance with EPA’s Part 197 in Construc-

tion Authorization

3. 10,000-Year Compliance Period

4. Reviewability of DOE’s Peak Dose Calculations

5. NRC’s ‘‘Reasonable Expectation’’ Standard

IV. The Site-Designation Cases

A. The Constitutional Case

1. Issue Preclusion

2. Merits of the Constitutional Challenge

4

B. The DOE Case

1. DOE Criteria, Secretary’s Alleged Failure To

Take Mandatory Actions, and Site Recommen-

dations

2. The Final Environmental Impact Statement

V. Conclusion

PER CURIAM: Having the capacity to outlast human civiliza-

tion 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 De-

partment of Energy (DOE). Petitioners also challenge the

constitutionality of the joint resolution through which Con-

gress 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 select-

ed by EPA violates section 801 of the Energy Policy Act

(EnPA) because it is not, as EnPA requires, ‘‘based upon and

5

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, approxi-

mately 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 Recommen-

dation’’]. 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 in-

creased cancer risks and serious birth defects such as mental

6

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 Environ-

mental 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 Infor-

mation 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: Cur-

rent Storage Methods For Radioactive Waste, at

http://www.ocrwm.doe.gov/ymp/about/storage.shtml (last visit-

ed June 1, 2004). By the year 2035, the United States will

have produced 105,000 metric tons of nuclear waste – approxi-

7

mately 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 estab-

lished 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 nu-

clear 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 De-

partment 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 deter-

mine which candidate sites to recommend for intensive inves-

tigation, 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

8

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 site-

characterization 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) (codi-

fied 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 site-

selection guidelines in 1984 and applied them to nominate five

candidate sites for characterization. Based on these guide-

lines, the Energy Secretary then recommended three sites to

the President: Deaf Smith County, Texas; Hanford, Wash-

ington; and Yucca Mountain, Nevada. See Nevada v. Wat-

kins, 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,

9

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 TTT 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 TTT [and] shall terminate all site specific

activities (other than reclamation activities) at all candidate

sites, other than the Yucca Mountain siteTTTT’’).

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 con-

formity 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

10

the promulgation of the regulations and the adoption of the

joint resolution challenged in this case.

Acting pursuant to EnPA, both EPA and NRC promulgat-

ed 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 recom-

mended Yucca to Congress. Objecting, Nevada submitted a

notice of disapproval, to which Congress responded by pass-

ing a joint resolution approving the development of a reposi-

tory 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 reposito-

ry will house up to 70,000 metric tons of radioactive waste

deep underground. See 66 Fed. Reg. at 32,081. DOE pro-

jects 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

11

high-level radioactive waste left over from the nation’s nucle-

ar 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’’ bar-

riers, which include waste packages consisting of metal cylin-

ders 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 radio-

active 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

12

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 statuto-

ry and regulatory regime governing the Yucca Mountain

repository. First, the State of Nevada and various environ-

mental 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 insuffi-

ciently 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 protec-

tion of the public from releases from radioactive

13

materials stored or disposed of in the repository at

the Yucca Mountain site. Such standards shall pre-

scribe the maximum annual effective dose equivalent

to individual members of the public from releases to

the accessible environment from radioactive materi-

als 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 Sci-

ences TTT 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 stan-

dards 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 condi-

tion 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 pro-

vides:

The DOE must demonstrate, using performance as-

sessment, that there is a reasonable expectation

that, for 10,000 years following disposal, the reason-

ably 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 sys-

tem. The DOE’s analysis must include all potential

pathways of radionuclide transport and exposure.

40 C.F.R. § 197.20 (2004). This ‘‘reasonably maximally ex-

posed individual’’ (RMEI) represents a theoretical person

14

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’’ expo-

sure levels. See 66 Fed. Reg. at 32,092. The individual-

protection standard expresses the maximum doses the RMEI

may incur in terms of an ‘‘annual committed effective dose

equivalent,’’ a methodology that calculates an overall expo-

sure 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 stan-

dard,’’ requires DOE to show, among other things, a reason-

able 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 stan-

dard,’’ requires DOE to demonstrate that the Yucca Mountain

disposal system will contain radiation sufficiently well to

protect ground water outside the controlled area from exces-

sive contamination. Specifically, the rule provides:

The DOE must demonstrate that there is a rea-

sonable expectation that, for 10,000 years of un-

disturbed 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 rep-

resentative volume of ground water to exceed the

limits in TTT Table 1.

Id. § 197.30 (2004). Table 1, in turn, specifies maximum

permitted contamination levels for three different types of

15

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 demon-

strate that ‘‘[c]ombined beta and photon emitting radionu-

clides’’ 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 Availabili-

ty, 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 Environ-

mental 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 Com-

ments’’]. The ‘‘representative volume’’ referred to in the

ground-water standard must include the highest concentra-

tion 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 fol-

lowing 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 indi-

cator of long-term disposal system performance. Id. § 197.35

16

(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 arbi-

trarily 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 chal-

lenges EPA’s decision to add a separate ground-water stan-

dard 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 now-

defunct 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 reviewa-

17

ble 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 modifi-

cation of rules and regulations dealing with the activities of

licensees,’’ id. § 2239(a)(1)(A). The AEC’s authority to estab-

lish environmental standards to protect the public from radia-

tion 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 TTT 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 protec-

tion 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 opera-

tions). 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 authori-

ty and because actions taken pursuant to that transferred

authority were subject to Hobbs Act review). This is just

such a case.

18

In issuing its Yucca Mountain standards, EPA acted pursu-

ant 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 (‘‘Sec-

tion 801 [of EnPA] builds upon [the] existing authority of the

[EPA] Administrator to set generally applicable [radiation-

protection] standardsTTTT’’). 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’ constitu-

tional standing is ‘‘self-evident.’’ Respondent’s Br. at 21. To

establish Article III standing to sue on behalf of their mem-

bers, NRDC and the other environmental petitioners must

show that ‘‘(a) [their] members would otherwise have stand-

ing 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 partic-

ipation 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., injury-

in-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.

19

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 per-

mit hazardous radionuclides from the buried waste to contam-

inate 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 anticipatedTTTT’’ Final Background Information Docu-

ment 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 constitu-

tional 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 chal-

lenge, would likely redress his harm.

Nor have we any doubt that Goedhart has prudential

standing. To establish prudential standing, a party’s ‘‘griev-

ance must arguably fall within the zone of interests protected

or regulated by the statutory provision or constitutional guar-

antee invoked in the suit.’’ Bennett v. Spear, 520 U.S. 154,

20

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 promul-

gate ‘‘public health and safety standards for protection of the

public from releases from radioactive materials’’).

Because the Government does not argue that the environ-

mental petitioners fail either the germaneness or the individu-

al-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 Tox-

ics 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 com-

pliance 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

21

posed by a Yucca Mountain repository. EnPA § 801(a)(2).

To undertake the necessary study, NAS convened a commit-

tee 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 engi-

neers, and reviewed publicly available research compiled by

federal, state, and local agencies, among others. Id. at vii-

viii.

The Academy’s work culminated in a 1995 report entitled

‘‘Technical Bases for Yucca Mountain Standards.’’ With re-

spect to the length of the compliance period, NAS found ‘‘no

scientific basis for limiting the time period of the individual-

risk 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 perform-

ance on the time scale of the long-term stability of the

fundamental geologic regime – a time scale that is on the

order of 106 [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 environ-

ment.’’ Id. at 6 (emphasis omitted). That said, NAS ex-

plained 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 favorTTTT’’ 64 Fed.

Reg. at 46,995. DOE, responding to EPA’s request, sup-

22

ported the 10,000-year compliance period, claiming that a

‘‘significantly longer time period for assessing compliance

would be unprecedented, unworkable, and probably unimple-

mentable.’’ 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 Pro-

jects, 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 peri-

od. 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 perform-

ance for approximately one million years, EPA nevertheless

concluded that ‘‘such an approach is not practical for regula-

tory 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 mean-

ingful 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 decision-

making.

Id. Moreover, EPA maintained that selecting a compliance

period for the individual-protection standard ‘‘involves both

technical and policy considerationsTTTT In addition to the

technical guidance provided in the NAS Report, we consid-

23

ered 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 applica-

ble nuclear waste disposal standards, use such a time frame,

and ‘‘consistency [is] appropriate because both sets of stan-

dards apply to the same types of waste,’’ (3) many interna-

tional 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 ad-

dressed 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 man-

date, EPA stated, ‘‘does not bind us absolutely to follow the

NAS Report. Instead, we used it as a starting point for this

rulemakingTTTT [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 conclud-

ed 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

24

rule ‘‘based upon and consistent with’’ NAS’s findings and

recommendations, as required by EnPA section 801(a). Be-

cause 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 Re-

sources 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 matterTTTT

[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 interpreta-

tions, ‘‘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 ‘‘flexi-

ble statutory language’’ requires not ‘‘exact correspondence

TTT but only congruity or compatibility.’’ Envtl. Def. Fund,

25

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 TTT 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 an-

swers the precise question before us.

Nor can we discern an unambiguous congressional com-

mand 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 Acade-

my of Sciences, in making its recommendations, to

establish specific standards for protection of the

public but rather to provide expert scientific guid-

ance on the issues involved in establishing those

standards. Under the provisions of section 801, the

authority and responsibility to establish the stan-

dards, pursuant to a rulemaking, would remain with

the [EPA] Administrator, as is the case under exist-

ing 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.

26

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 reason-

ably 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 recom-

mendations 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 find-

ings, and then went on to promulgate a dramatically different

standard, one that the Academy had expressly rejected. Al-

though section 801’s ‘‘based upon and consistent with’’ stan-

dard 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 recommenda-

tions. As in Daley, ‘‘[t]his case presents a situation in which

the [agency’s action] so completely diverges from any realistic

27

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 Acade-

my’s findings. Most important, NAS unequivocally recom-

mended 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 106 [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 con-

ducted 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 through-

out its report: ‘‘[W]e recommend TTT [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 long-

term 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

28

purpose of assessing compliance. We find that there is no

scientific basis for limiting the time period of an individual-

risk 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 TTT makes com-

pliance rather easy. This we do not support because

TTT we see no valid justification for this time lim-

itTTTT Th[is] TTT 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 pro-

vided to us, it appears that for some reasonable

combinations of parameters, peak risks are likely to

occur after 10,000 years.

Id. at 119 (footnote omitted) (emphasis added); see also id. at

2 (same).

EPA’s own explanation of its treatment of the NAS Report

also reveals that the agency consciously and outrightly reject-

29

ed the Academy’s findings and recommendations. For exam-

ple, in the final rule’s preamble, EPA acknowledged that NAS

had found ‘‘no scientific basis for limiting the time period of

the individual-risk standard to 10,000 years or any other

value,’’ but ‘‘[d]espite NAS’s recommendation,’’ it concluded

that a 10,000-year standard was appropriate. 66 Fed. Reg. at

32,097 (internal quotation marks omitted) (emphasis added);

see also id. (concluding that NAS’s recommended peak dose

standard is ‘‘not practical for regulatory decisionmaking,

which involves more than scientific performance projections

using computer models’’).

This case is quite similar to Daley, where, as we explained

above, see supra at 25, we held that a statute directing that

agency fishing quotas be ‘‘consistent with’’ applicable fishery

management plans was not free from ambiguity. See 209

F.3d at 753-54. Because the agency’s quota in that case had

only an eighteen percent likelihood of achieving its conserva-

tion target, we held that it failed Chevron’s Step-Two reason-

ableness test. Id. ‘‘Only in Superman Comics’ Bizarro

world, where reality is turned upside down,’’ we explained,

‘‘could the [agency] reasonably conclude that a measure that

is at least four times as likely to fail as to succeed offers [the

requisite degree of] confidence.’’ Id. at 754 (internal quota-

tion marks omitted). So too here. Only in a world where

‘‘based upon’’ means ‘‘in disregard of’’ and ‘‘consistent with’’

means ‘‘inconsistent with’’ could EPA’s adoption of a 10,000-

year compliance period be considered a permissible construc-

tion of section 801.

EPA nevertheless insists that it acted consistently with the

Academy’s conclusions because it based the 10,000-year com-

pliance period on several policy concerns beyond the ken of

NAS’s technical expertise. In support of this argument, EPA

relies on NAS’s acknowledgment that agency standard-

setting implicates policy considerations: ‘‘[W]e note that al-

though the selection of a time period of applicability has

scientific elements,’’ NAS stated, ‘‘it also has policy aspects

that we have not addressed. For example, EPA might

choose to establish consistent policies for managing risks

from disposal of both long-lived hazardous nonradioactive

30

materials and radioactive materials.’’ NAS REPORT at 56

(citations omitted).

We think the Academy’s statement far too thin a reed on

which to find that EPA reasonably interpreted EnPA’s

‘‘based upon and consistent with’’ command. Simply stating

that standard-setting has ‘‘policy aspects’’ cannot transform

NAS’s statement that ‘‘we recommend that compliance as-

sessment be conducted for the time when the greatest risk

occurs, within the limits imposed by long-term stability of the

geologic environment,’’ id. at 6-7 (emphasis omitted), into, as

EPA would seemingly have it, ‘‘we recommend that compli-

ance assessment be conducted for the period that lacks

scientific basis but that best meets EPA’s policy goals.’’

Furthermore, NAS’s conclusion that EPA ‘‘might choose to

establish consistent policies’’ is of little importance here, given

that this court – not the Academy – is charged with determin-

ing whether EPA has exercised its rulemaking discretion in

compliance with EnPA. And although our case law makes

clear that a phrase like ‘‘based upon and consistent with’’ does

not require EPA to hew rigidly to NAS’s findings, EnPA

section 801(a) cannot reasonably be read to allow a regulation

wholly inconsistent with NAS recommendations.

EPA also claims that it complied with EnPA because it

based the 10,000-year compliance period on the Academy’s

finding that ‘‘there is no scientific basis for prediction of

future states [of human activity], and the limit of our ability

to extrapolate with reasonable confidence is measured in

decades, or at most, a few hundreds of years.’’ Id. at 55.

This statement helps EPA not at all, for NAS nonetheless

concluded that despite this uncertainty, limiting the compli-

ance period to 10,000 years was inappropriate. Id.

Finally, at oral argument, EPA counsel insisted that part

197 is consistent with NAS’s findings because it requires

DOE to ‘‘calculate the peak dose of the reasonably maximally

exposed individual that would occur after 10,000 years follow-

ing disposal but within the period of geologic stability’’ and to

‘‘include [those] results and their bases in the environmental

impact statement for Yucca Mountain as an indicator of long-

31

term disposal system performance.’’ 40 C.F.R. § 197.35; see

also Oral Argument Tr. at 32 (‘‘[W]e certainly think that the

ultimate result was consistent with the NAS recommenda-

tions insofar as the projections out to time of peak dose are

required to be performed and submitted in the [Environmen-

tal Impact Statement].’’). Although EPA’s addition of this

provision might well represent a nod to NAS, it hardly makes

the agency’s regulation consistent with the Academy’s find-

ings. NAS recommended that the compliance period extend

to the time of peak risk, yet EPA’s rule requires only that

DOE calculate peak doses and expressly provides that ‘‘[n]o

regulatory standard applies to the results of this analysis.’’

40 C.F.R. § 197.35; see also 66 Fed. Reg. at 32,096 (‘‘The rule

does not TTT require that DOE meet a specific dose limit

after 10,000 years.’’).

In sum, because EPA’s chosen compliance period sharply

differs from NAS’s findings and recommendations, it repre-

sents an unreasonable construction of section 801(a) of the

Energy Policy Act. Although EnPA’s ‘‘based upon and con-

sistent with’’ mandate leaves EPA with some flexibility in

crafting standards in light of NAS’s findings, EPA may not

stretch this flexibility to cover standards that are inconsistent

with the NAS Report. Had EPA begun with the Academy’s

recommendation to base the compliance period on peak dos-

age and then made adjustments to accommodate policy con-

siderations not considered by NAS, this might be a very

different case. But as the foregoing discussion demonstrates,

EPA wholly rejected the Academy’s recommendations. We

will thus vacate part 197 to the extent that it requires DOE to

show compliance for only 10,000 years following disposal. On

remand, EPA must either issue a revised standard that is

‘‘based upon and consistent with’’ NAS’s findings and recom-

mendations or return to Congress and seek legislative author-

ity to deviate from the NAS Report. It was Congress that

required EPA to rely on NAS’s expert scientific judgment,

and given the serious risks nuclear waste disposal poses for

the health and welfare of the American people, it is up to

Congress – not EPA and not this court – to authorize

departures from the prevailing statutory scheme.

32

Because EPA’s 10,000-year compliance period violates

EnPA section 801, we have no need to consider Nevada’s

alternative argument that the standard is arbitrary and capri-

cious under the APA.

3. The Controlled Area

Nevada next attacks part 197’s controlled area. Part 197

contemplates that the Yucca Mountain disposal system will

include not just a repository in which the waste packages are

placed, but also a controlled area surrounding the repository.

Under the rule, the controlled area may extend five kilome-

ters from the repository in every direction, except that to-

ward the south – the direction in which ground water flows –

the area may extend to a specified geographic coordinate that

is roughly eighteen kilometers away. See 40 C.F.R. § 197.12;

66 Fed. Reg. at 32,094.

The controlled area serves three distinct functions. First,

it operates as the natural barrier portion of the disposal

system, the land dedicated to isolating and diluting radionu-

clides released from the waste packages. See 66 Fed. Reg. at

32,117. Second, it designates the area that EPA will make

off-limits to human settlement through ‘‘institutional controls’’

such as signs or guards. Id. Third, and central to Nevada’s

challenge here, the controlled area’s borders establish the

maximum distance from the repository that the Energy De-

partment may locate the reasonably maximally exposed indi-

vidual for purposes of demonstrating compliance with the

individual-protection standard, see 40 C.F.R. §§ 197.20-

197.21, as well as the greatest distance from the repository

that DOE may place the point of compliance for the ground-

water-protection standard, see id. §§ 197.30, 197.31(a)(1).

Under the individual-protection standard, DOE must show

that the RMEI living in the ‘‘accessible environment,’’ defined

as any point outside the controlled area, id. § 197.12, and

specifically, ‘‘above the highest concentration of radionuclides

in the plume of contamination,’’ id. 197.21(a), will incur radia-

tion doses no greater than prescribed by the rule, id.

§ 197.20. Under the ground-water-protection standard, DOE

must show that radiation levels in the representative volume

33

of water, including ‘‘the highest concentration level in the

plume of contamination’’ outside the controlled area, id.

§ 197.31(a)(1), do not exceed maximum contaminant limits, id.

§ 197.30.

In the final Yucca rule, EPA selected a point approximately

eighteen kilometers south of the repository as the presumed

location of the RMEI and the ground-water standard’s point

of compliance. EPA explained that after considering loca-

tions ranging from a few kilometers to roughly thirty kilome-

ters from the repository, it selected the eighteen-kilometer

point as the RMEI’s location for two primary reasons. First,

after warning signs and other institutional controls lapse with

the passage of time (the Academy was unable to predict how

long such controls would last, see NAS REPORT at 106), rural

residents – those with the lifestyle traits upon which EPA

chose to model its RMEI, see 66 Fed. Reg. at 32,090 – are

unlikely to settle farther north because living conditions

become less hospitable the closer one gets to the repository.

In particular, terrain becomes rougher, and depth to ground

water increases. See id. at 32,094. Second, EPA concluded

that even if individuals, notwithstanding these conditions,

chose to live closer to Yucca Mountain, they would incur less

overall exposure than rural residents at eighteen kilometers

away, so placing the RMEI at the eighteen-kilometer point

would provide greater overall protection than a more norther-

ly location. Id. ‘‘[E]ven though the ground water nearer the

repository could contain higher concentrations of radionu-

clides,’’ EPA explained, if individuals lived closer to the

repository, they would incur lower overall doses. Id. at

32,093. According to the agency:

[Such individuals] would be unlikely to withdraw

water from the significantly greater depth for other

than domestic use, and in the much larger quantities

needed for gardening or farming activities because

of the significant cost of finding and withdrawing the

ground water. It is possible, therefore, for an indi-

vidual located closer to the repository to incur expo-

34

sures from contaminated drinking water, but not

from ingestion of contaminated food.

Id. Based on these findings, EPA concluded, ‘‘the exposure

for an RMEI located approximately 18 [kilometers] south of

the repository (where ingestion of locally grown contaminated

food is a reasonable assumption) actually would be more

conservative than an RMEI located much closer to the reposi-

tory who is exposed primarily through drinking water.’’ Id.

With respect to the ground-water standard’s point of com-

pliance, EPA explained:

[A]s one gets closer than about 18 [kilometers] to

the repository footprint, the depth to water begins to

increase dramatically from about 100 [meters] at a

distance of 20 [kilometers] to a few hundred meters

at a distance of 5 [kilometers]. Given the expecta-

tion of future population growth and the precious

nature of ground water resources in the area, it is

reasonable to assume that a small group may annu-

ally extract the representative volume of ground

water at a distance slightly closer than 20 [kilome-

ters]TTTT This approach is protective of the ground

water resources reasonably anticipated to be ac-

cessed in the vicinity of Yucca Mountain.

Id. at 32,119-20.

Nevada contends that EPA’s factual assumptions lack rec-

ord support and that the agency therefore acted arbitrarily

and capriciously in allowing the controlled area’s southern

boundary to extend eighteen kilometers from the repository.

In particular, Nevada argues that the record shows that

humans are likely to settle and grow food at locations much

closer to the repository and that individuals living nearer to

the buried waste will incur greater radiation exposure than

those a full eighteen kilometers away. Based on this view of

the record, Nevada claims that EPA’s controlled area is both

irrational and insufficiently protective of public health and

safety. We disagree.

35

To begin with, contrary to Nevada’s assertion, record evi-

dence supports EPA’s finding that humans are unlikely to

cultivate crops within the controlled area. The Final Back-

ground Information Document, which explains much of the

technical basis for EPA’s rule, shows not only that costs for

drilling water increase as depth to water increases, but also

that drilling and pumping water for irrigation purposes at

depths exceeding 300 feet is economically infeasible, i.e., that

when ‘‘[c]ombining TTT pumping cost estimates TTT with TTT

capital cost estimates TTT, the marginal value of water for

irrigation is exceeded at depths to water greater than 300

feet.’’ Final Background Information Document at IV-12;

see also id. at IV-10, IV-12 (estimating the costs of drilling

wells and pumping water for irrigation purposes at various

depth-to-water levels). EPA therefore concluded that access-

ing water for irrigation is cost-prohibitive at locations closer

than eighteen kilometers. In reaching this conclusion, EPA,

relying on the Academy’s recommendation, found that since it

was ‘‘impossible to predict either human activities or econom-

ic imperatives,’’ it would assume ‘‘current conditions’’ would

persist indefinitely. 66 Fed. Reg. at 32,094 (‘‘[W]e followed

NAS’s recommendation to use current conditions to avoid

highly speculative scenarios.’’). Because Nevada does not

challenge this odd aspect of EPA’s reasoning and because

depth to water generally surpasses 300 feet at points closer to

the repository than the eighteen-kilometer mark, see Final

Background Information Document at 8-33, EPA’s conclusion

that humans would be unlikely to pursue agricultural activi-

ties in such unfavorable terrain seems reasonable to us.

We also think it reasonable for the agency to have found

that humans will likely choose to settle outside the controlled

area. Although the record does show that a community could

feasibly settle within the controlled area and use local water

for domestic (as opposed to agricultural) purposes, see id. at

IV-11 to IV-12, and that institutional controls cannot deter

settlement within the controlled area for the entire compli-

ance period, see id. at 8-89, EPA’s Final Background Infor-

mation Document demonstrates that the costs of settling

nearer to the repository are substantially higher than estab-

36

lishing a community farther away, see id. at IV-8 to IV-9. In

any event, to satisfy the APA’s rational-decisionmaking stan-

dard, EPA need not prove that humans will never settle

within the controlled area; the agency needs only a reason-

able basis for believing that they are unlikely to do so. See

City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)

(per curiam) (‘‘[W]e will give an extreme degree of deference

to the agency when it is evaluating scientific data within its

technical expertise.’’ (internal quotation marks omitted)). In-

deed, deciding where to locate the RMEI and the ground-

water standard’s point of compliance involves a complex line-

drawing judgment to which we owe great deference. See

Sinclair Broad. Group, Inc. v. FCC, 284 F.3d 148, 159 (D.C.

Cir. 2002) (‘‘Where issues involve elusive and not easily

defined areas TTT, our review is considerably more deferen-

tial, according broad leeway to the [agency’s] line-drawing

determinations.’’ (citation and internal quotation marks omit-

ted)).

EPA’s conclusion that individuals who could settle closer to

the repository will incur less radiation exposure than those

living eighteen kilometers away, though seemingly counterin-

tuitive, also finds support in the record. Although ground

water nearer to the repository could contain higher radiation

concentrations than ground water farther away, see 66 Fed.

Reg. at 32,093, well-drilling data in the record and the

Energy Department’s analysis of relative radiation-exposure

levels support EPA’s ultimate RMEI-location decision. As

discussed above, EPA’s well-drilling cost estimates show that

individuals who may settle closer to the repository are unlike-

ly to extract water for agricultural purposes. Record data

also demonstrate that individuals living closer to the reposito-

ry who consume smaller quantities of more highly contami-

nated water (water for drinking alone) will experience less

overall exposure than those living farther from the repository

who consume greater amounts of less contaminated water

(water for both drinking and agriculture). DOE’s draft envi-

ronmental impact statement projects that the mean peak dose

rate for an individual at five kilometers, whose radiation

intake is through drinking contaminated water alone, will be

lower than that for a person at twenty kilometers who

37

consumes contaminated drinking water and contaminated

food. See United States Department of Energy, Draft Envi-

ronmental Impact Statement for a Geologic Repository for

the Disposal of Spent Nuclear Fuel and High-Level Radioac-

tive Waste at Yucca Mountain, Nye County, Nevada 5-26 to

5-36 (July 1999).

Nevada’s remaining challenges to EPA’s well-drilling data

are without merit. Although it is true that EPA found it

‘‘difficult to reconcile’’ cost figures in a particular set of well-

construction cost estimates, Final Background Information

Document at IV-2, the agency did not rely on those analyses,

resting its conclusions instead on calculations that estimated

the overall cost of water based on construction and pumping

costs for wells of various depths, see id. (stating that the

agency estimated ‘‘the significance of drilling costs on the

overall cost of water TTT by estimating the costs of various

wells (different uses and depths) from the data available and

then calculating the capital cost per acre-foot’’); see also id.

at IV-11 (describing the mathematical equation used to com-

pute water-pumping costs). And despite the State’s claim to

the contrary, the fact that DOE itself uses two wells within

the proposed controlled area to support its Yucca site-

investigation activities, see id. at 8-80; 66 Fed. Reg. at 32,123,

provides no basis for questioning EPA’s reasoning, for how a

government agency chooses to allocate public funds tells us

little (if anything) about how individuals, motivated by eco-

nomic and personal considerations, decide where to live.

Finally, Nevada contends that the rule’s controlled area

boundaries violate what the State describes as the ‘‘non-

endangerment’’ provision of the Safe Drinking Water Act. 42

U.S.C. § 300h(b)(3)(C) (2000) (‘‘Nothing in this section shall

be construed to alter or affect the duty to assure that

underground sources of drinking water will not be endan-

gered by any underground injection.’’). Although conceding

both that EPA need not apply the SDWA to ground water

within the controlled area and that EPA has imported its

SDWA-based, maximum-contaminant-level standards to regu-

late ground water outside the controlled area, Nevada never-

theless insists that the SDWA compels EPA to draw a

38

smaller controlled area. This argument fails for a simple

reason: SDWA standards do not apply to the Yucca Moun-

tain repository. On this score, EnPA could not be clearer:

‘‘[EPA’s Yucca standards] shall be the only [public health and

safety] standards applicable to the Yucca Mountain site.’’

EnPA § 801(a)(1); see also H.R. CONF. REP. NO. 102-1018, at

390, reprinted in 1992 U.S.C.C.A.N. at 2481 (‘‘[T]he standards

established by the authority in this section would be the only

such standards for protection of the public from releases of

radioactive materials as a result of the disposal of spent

nuclear fuel or high-level radioactive waste in a repository at

the Yucca Mountain site.’’). Thus, even assuming that the

SDWA applies to nuclear waste disposal at Yucca Mountain,

Congress, acting through EnPA, exempted the Nevada repos-

itory from that statute. Therefore, the SDWA cannot limit

the size of Yucca’s controlled area, and because ‘‘the intent of

Congress is clear, that is the end of the matter.’’ Chevron,

467 U.S. at 842.

4. The Definition of ‘‘Disposal’’

For its final challenge to part 197, Nevada claims that EPA

exceeded its statutory authority by adopting a definition of

the term ‘‘disposal’’ that deviates from the one contained in

the NWPA. While the NWPA defines ‘‘disposal’’ as ‘‘the

emplacement in a repository of high-level radioactive waste,

spent nuclear fuel, or other highly radioactive material with

no foreseeable intent of recovery, whether or not such em-

placement permits the recovery of such waste,’’ 42 U.S.C.

§ 10101(9) (2000), EPA’s rule adds a ‘‘for as long as reason-

ably possible’’ qualifier, 40 C.F.R. § 197.12. The rule defines

‘‘disposal’’ as ‘‘the emplacement of radioactive material into

the Yucca Mountain disposal system with the intent of isolat-

ing it for as long as reasonably possible and with no intent of

recovery, whether or not the design of the disposal system

permits the ready recovery of the material.’’ Id. According

to Nevada, the additional ‘‘for as long as reasonably possible’’

language ‘‘could be read as requiring only temporary delay of

radiation releases with engineered barriers to qualify as

‘disposal,’ mark[ing] a departure from the [c]ongressional

39

objective in the NWPA to base repository siting primarily on

the principle of long-term geologic isolation.’’ Nev. Br. at 2.

Nevada’s claim fails, again for a simple reason: EnPA, the

statute pursuant to which EPA promulgated part 197, does

not require the agency to use NWPA definitions. See EnPA

§ 801(a)(1) (requiring EPA to promulgate standards to gov-

ern Yucca Mountain ‘‘[n]otwithstanding’’ other authority of

the agency to issue generally applicable standards); see also

id. § 801(a)(3) (stating that only EnPA, ‘‘rather than any

other authority of the Administrator to set generally applica-

ble standards for radiation protection,’’ applies to the Yucca

Mountain site). Rather, EnPA is silent as to the meaning of

‘‘disposal,’’ and Nevada has failed to show that in filling that

statutory gap, EPA acted unreasonably. See Chevron, 467

U.S. at 843 (stating that administering a congressionally

created program requires ‘‘the making of rules to fill any gap

left, implicitly or explicitly, by Congress’’).

C. NEI’s Challenge to the Ground-Water Standard

The Nuclear Energy Institute, a trade association repre-

senting the nuclear energy industry, also takes issue with

part 197. Specifically, it challenges EPA’s inclusion of a

separate ground-water-protection standard. See 40 C.F.R.

§ 197.30. As NEI sees it, requiring DOE to demonstrate

compliance with a distinct ground-water standard is unneces-

sary because the rule’s individual-protection standard already

limits overall radiation exposure, including exposure received

through contaminated ground water.

1. Standing

Before addressing the merits of NEI’s challenge, we must

consider EPA’s claim that the organization lacks standing.

To maintain its petition for review, NEI, like the environmen-

tal petitioners, must demonstrate that it satisfies both associ-

ational and prudential standing requirements. See Hunt, 432

U.S. at 343 (articulating the standing requirements for associ-

ations); Reytblatt v. United States Nuclear Regulatory

Comm’n, 105 F.3d 715, 720 (D.C. Cir. 1997) (stating that the

Hobbs Act, which authorizes ‘‘[a]ny party aggrieved’’ to chal-

40

lenge final agency orders, 28 U.S.C. § 2344 (2000), requires

parties to demonstrate both constitutional and prudential

standing).

NEI claims that it has associational standing because part

197’s ground-water standard will complicate and delay the

completion of the Yucca Mountain repository. According to

NEI, EPA’s addition of a separate ground-water requirement

will force the Energy Department to expend additional re-

sources – both time and money – which will in turn inflict

concrete harm on NEI members who, under the NWPA, not

only bear the cost of storing their spent nuclear fuel until the

Yucca Mountain repository is constructed, but also foot the

repository’s bill through fee assessments paid into the Nucle-

ar Waste Fund. See 42 U.S.C. § 10131(a)(5) (stating that

nuclear waste generators ‘‘have the primary responsibility to

provide for, and the responsibility to pay the costs of, the

interim storage of [nuclear] waste TTT until [it] is accepted by

the Secretary of Energy’’ for disposal); id. § 10222 (requiring

nuclear waste generators to pay fees into the Nuclear Waste

Fund to finance the building and operation of the Govern-

ment’s underground repository). Affidavits submitted by

NEI state (1) that nuclear power plants spend millions of

dollars constructing and operating storage facilities, see Decl.

of Eileen M. Supko ¶¶ 16, 18-21, and (2) that imposition of a

ground-water standard will require DOE to undertake addi-

tional work at the characterization, design, and licensing

stages – which will both delay the date on which the Energy

Department will take stored waste off NEI members’ hands

and increase repository costs, see Decl. of Steven P. Kraft

¶¶ 8-11.

Disputing these contentions, EPA argues that the separate

ground-water standard imposes no additional cost on the

repository program because the data and analysis required to

assess compliance with the ground-water standard are the

same as those required for the individual-protection standard.

See United States Environmental Protection Agency, Public

Health and Environmental Radiation Protection Standards

for Yucca Mountain, Nevada – Final 40 CFR 197: Evaluation

of Potential Economic Impacts of 40 CFR Part 197 (Economic

41

Impact Assessment) at ES-1 to ES-2, 6-5, 7-1 (June 2001);

see also Decl. of Ronald A. Milner ¶ 10 (‘‘[I]t is speculative

whether compliance with the final EPA groundwater stan-

dard would increase costs to the [Nuclear Waste] Fund so as

to require an increase to the TTT per kilowatt-hour fee in the

future or whether compliance with the standard would cause

delays in the construction of a repositoryTTTT’’). Moreover,

the agency argues that NEI’s requested relief – striking the

ground-water standard from part 197 – will not redress the

organization’s alleged injury because, with or without a sepa-

rate ground-water standard, DOE will retain the same reposi-

tory design.

Based on the record before us, we conclude that NEI has

standing to bring its petition for review. As to injury-in-fact,

we have no doubt that delaying the opening of the Yucca

Mountain repository would inflict concrete harm on NEI

members, for as NEI’s affidavit explains, NEI members

expend substantial sums to operate their own storage facili-

ties. See Supko Decl. ¶¶ 16, 19. We likewise think NEI has

shown a ‘‘substantial probability,’’ Rainbow/PUSH Coalition,

330 F.3d at 542, that the addition of a separate ground-water

standard will cause these delays and that the organization’s

requested relief will likely redress this harm. As NEI points

out, part 197 requires DOE to demonstrate compliance with a

separate ground-water standard in NRC licensing proceed-

ings, see 40 C.F.R. §§ 197.13, 197.30 – a requirement that

both DOE and NAS found could complicate the licensing

process, see Letter from Lake H. Barrett, to United States

Environmental Protection Agency at B-4 (‘‘[T]he proposed

separate, single-pathway, groundwater standard could, de-

pending on how it was implemented, prohibitively complicate

licensingTTTT’’); Letter from Michael Kavanaugh, Chair and

John Ahearne, Vice Chair, Board on Radioactive Waste Man-

agement, National Research Council, to Carol M. Browner,

Administrator, Environmental Protection Agency 11 (Nov. 26,

1999) [hereinafter ‘‘NAS Comments’’] (‘‘Such separate

[ground-water] limits may greatly complicate the licensing

processTTTT’’); see also Kraft Decl. ¶ 10 (asserting that dur-

42

ing the NRC licensing process, DOE and NRC will have to

spend time and resources ensuring that the repository com-

plies with the separate ground-water standard). Moreover,

although EPA vigorously disputes NEI’s claim that the

ground-water standard will increase the cost of repository

design and construction, the agency says virtually nothing

about possible delays in the licensing process. Given this

record, NEI has carried its burden of satisfying Article III’s

‘‘irreducible constitutional minimum.’’ Finally, pursuing liti-

gation to speed the licensing of a permanent repository is

‘‘germane to the organization’s purpose[,] and TTT neither the

claim asserted nor the relief requested requires the partic-

ipation of individual members in the lawsuit.’’ Hunt, 432 U.S.

at 343. EPA never suggests otherwise.

To demonstrate prudential standing, NEI must show that

its members’ ‘‘grievance[s] TTT arguably fall within the zone

of interests protected or regulated by the statutory provision

TTT invoked in the suit.’’ Bennett, 520 U.S. at 162. This test

is ‘‘not meant to be especially demanding. Indeed, a petition-

er is outside the statute’s zone of interests only if [the

petitioner’s] interests are so marginally related to or inconsis-

tent with the purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to permit the

suit.’’ Nat’l Petrochemical & Refiners Ass’n v. EPA, 287

F.3d 1130, 1147 (D.C. Cir. 2002) (per curiam) (citation and

internal quotation marks omitted). Furthermore, ‘‘there does

not have to be an indication of congressional purpose to

benefit the would-be [petitioner].’’ Nat’l Credit Union Ad-

min. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 492 (1998)

(internal quotation marks omitted). To analyze prudential

standing, we look ‘‘to the particular provision of law upon

which the [petitioner] relies,’’ Bennett, 520 U.S. at 175-76;

‘‘Congress’s purposes in enacting the overall statutory

scheme are relevant only insofar as they may help reveal its

purpose in enacting the particular provision,’’ Grand Council

of the Crees v. FERC, 198 F.3d 950, 956 (D.C. Cir. 2000).

EPA contends that NEI falls outside the ‘‘zone of inter-

ests’’ that EnPA section 801(a) protects or regulates because

that provision was designed to safeguard public health and

43

safety, not to minimize regulatory burdens. Although EPA is

correct that Congress enacted section 801(a) to protect the

public from radiation releases at Yucca Mountain, we think it

equally obvious that Congress intended section 801(a) to

facilitate construction of a permanent nuclear waste reposito-

ry – the very interest that NEI advances here. As evinced in

the NWPA and later in EnPA, Congress viewed EPA stan-

dards as a basic prerequisite for developing an underground

repository. Indeed, because section 801(a) focuses exclusive-

ly on a disposal facility at Yucca Mountain – the statute

regulates no preexisting environmental or health threat – the

required EPA standards would have no purpose whatsoever

were repository construction not to move forward. Finally,

section 801’s requirement that EPA promulgate health and

safety standards no later than one year after receiving NAS’s

recommendations further demonstrates Congress’s intent to

move the federal government expeditiously toward licensing

and operating a repository at Yucca Mountain. In light of

this congressional purpose, NEI’s interests ‘‘arguably’’ fall

within section 801(a)’s zone of interests, thus giving the

organization prudential standing to pursue its petition for

review. We therefore turn to the merits.

2. Alleged Conflicts with the Energy Policy Act

NEI argues that EPA’s inclusion of a separate ground-

water standard conflicts with EnPA’s plain language in three

ways. First, NEI claims that by relying on the ‘‘critical

organ dose’’ methodology, EPA’s ground-water standard vio-

lates EnPA section 801(a) because, according to the associa-

tion, that section authorizes EPA to promulgate only stan-

dards that protect individual members of the public based on

the ‘‘effective dose equivalent’’ (EDE) methodology. EnPA

section 801(a)(1) contains three sentences: The first states

that ‘‘the 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’’; the second sentence, empha-

sized by NEI, then says, ‘‘[s]uch standards shall prescribe the

44

maximum annual effective dose equivalent to individual mem-

bers of the public from releases to the accessible environment

from radioactive materials stored or disposed of in the reposi-

tory’’; the third sentence concludes, ‘‘[t]he standards shall be

promulgated not later than 1 year after the Administrator

receives the findings and recommendations of the National

Academy of Sciences TTT and shall be the only such standards

applicable to the Yucca Mountain site.’’

Parsing this language, NEI argues that the provision’s

second sentence – ‘‘[s]uch standards shall prescribe the maxi-

mum annual effective dose equivalent to individual members

of the public’’ – defines the scope of the ‘‘public health and

safety standards’’ that the first sentence requires EPA to

promulgate. Therefore, NEI argues, in executing Congress’s

mandate to issue public health standards, the agency may

promulgate only EDE-based safety rules that protect the

public, not rules using a different methodology that protect

ground water. If Congress had thought of EDE standards as

merely a subset of EPA’s overall public health standards,

NEI continues, then it would have used the word ‘‘include’’ in

section 801(a)(1)’s second sentence, not ‘‘prescribe.’’ NEI

also claims that the third sentence’s phrase, ‘‘shall be the only

such standards applicable to the Yucca Mountain site,’’ limits

EPA’s authority to promulgation of the EDE-based standards

referenced in the preceding sentence. In other words, each

time Congress used the term ‘‘standards,’’ NEI argues, it

meant only the EDE standards described in section

801(a)(1)’s second sentence.

In Chevron terms, the ‘‘precise question’’ presented by

NEI’s challenge is this: Did Congress clearly authorize EPA

to promulgate more than just individual-protection, EDE-

based standards? Unlike NEI, we think it did. To begin

with, section 801(a)(1)’s first sentence expressly requires EPA

to develop ‘‘public health and safety standards’’ – not just

‘‘EDE-based standards.’’ The second sentence’s directive –

that EPA’s standards ‘‘shall prescribe the maximum annual

effective dose equivalent to individual members of the pub-

lic’’ – neither restates nor defines the first sentence’s di-

rective that the agency promulgate ‘‘public health and safety

45

standards for protection of the public.’’ Rather, the two

sentences, read together, require EPA to establish a set of

health and safety standards, at least one of which must

include an EDE-based, individual-protection standard. In-

deed, NEI’s reading of section 801(a)(1) would render much

of that provision’s first sentence superfluous, for if Congress

had intended to delegate to EPA authority to adopt an EDE

standard only, it would not have directed the agency to

promulgate ‘‘public health and safety standards for protection

of the public.’’ For essentially the same reason, section

801(a)(1)’s third sentence, which provides that ‘‘[t]he stan-

dards TTT shall be the only such standards applicable to the

Yucca Mountain site,’’ offers no support for NEI’s position.

As we have explained, Congress required EPA to promulgate

‘‘public health and safety standards,’’ not just EDE-based

standards. Therefore, the limitation contained in section

801(a)(1)’s third sentence cannot plausibly be read as refer-

ring to the second sentence’s EDE-based standards.

NEI also calls our attention to EnPA section 801(a)(3),

which provides that ‘‘[t]he provisions of this section shall

apply to the Yucca Mountain site, rather than any other

authority of the Administrator to set generally applicable

standards for radiation protection.’’ According to NEI, this

section ‘‘precludes the Government’s interpretation of the

first sentence of (a)(1) as giving [it] general authority to

prescribe any health and safety standards.’’ Oral Argument

Tr. at 73. This argument begs the question: Precisely what

authority does section 801(a)(1) delegate to the agency? The

answer, as we just explained, is that section 801 authorizes

EPA to promulgate not merely EDE-based standards, but

rather ‘‘public health and safety standards for protection of

the public.’’

For its second statutory argument, NEI, echoing Nevada’s

challenge to the 10,000-year compliance period, contends that

part 197’s ground-water standard violates EnPA’s require-

ment that EPA’s rule be ‘‘based upon and consistent with the

findings and recommendations of the National Academy of

Sciences.’’ EnPA § 801(a)(1). As NEI sees it, EPA imper-

missibly promulgated a separate ground-water standard, like

46

the one in the generic part 191 standards, despite what NEI

regards as NAS’s conclusion that adding such a standard to

regulate Yucca Mountain waste disposal is unnecessary and

lacks scientific foundation.

Although we concluded earlier in this opinion that EPA

violated section 801’s ‘‘based upon and consistent with’’ re-

quirement by adopting a 10,000-year compliance period, see

supra at 20-31, we reach the opposite conclusion here because

NAS treated the compliance-period and ground-water issues

quite differently. Whereas NAS expressly rejected a 10,000-

year compliance period, it said nothing at all about the need

to add a separate ground-water standard. The NAS Report

states:

40 CFR 191 includes a provision to protect ground

water from contamination with radioactive materials

that is separate from the 40 CFR 191 individual-dose

limits. These provisions have been added to 40

CFR 191 to bring it into conformity with the Safe

Drinking Water Act, and have the goal of protecting

ground water as a resource. We make no such

recommendation, and have based our recommenda-

tions on those requirements necessary to limit risks

to individuals.

NAS REPORT at 121. In other words, the Academy never

even considered a ground-water standard. As EPA ex-

plained:

In its report, NAS did not recommend specifically

that we include a separate ground water protection

provision in our environmental protection standards

for Yucca Mountain. Neither, however, did NAS

state that we should not include such a provi-

sionTTTT Our decision to include separate ground

water standards is a policy decision that we make

pursuant to our statutory authority under the Ener-

gy Policy Act.

66 Fed. Reg. at 32,107; see also Response to Comments at 6-

16 (stating that the ground-water standard is not inconsistent

with NAS’s findings because ‘‘NAS clearly identified the

47

ground-water pathway as one of the significant pathways of

exposure’’ and because the Academy did not ‘‘make a specific

recommendation that EPA either include or not include a

separate ground-water protection provision’’). Put another

way, NAS made no ‘‘finding’’ or ‘‘recommendation’’ that

EPA’s regulation could fail to be ‘‘based upon and consistent

with.’’ We thus agree with EPA that section 801 left it free

to add a ground-water standard.

NEI points out that the Academy sharply criticized EPA’s

ground-water standard in a letter submitted during part 197’s

notice-and-comment period. See NAS Comments at 10-12.

But EnPA does not require EPA to conform its rule to

comments that NAS submits during the rulemaking process.

Instead, EnPA section 801(a)(1) requires EPA to base its

standards on the Academy’s ‘‘findings and recommendations.’’

EnPA section 801(a)(2), in turn, requires EPA to obtain those

findings through a formal study conducted by the Academy:

‘‘[T]he [EPA] Administrator shall contract with the National

Academy of Sciences to conduct a study to provide TTT

findings and recommendations on reasonable standards for

protection of the public health and safetyTTTT’’ EnPA

§ 801(a)(2) (emphasis added). Reading these provisions to-

gether, we think it clear that Congress directed EPA to

conform its rule to those ‘‘findings and recommendations’’

that appear in the NAS Report. See Gustafson v. Alloyd

Co., 513 U.S. 561, 570 (1995) (‘‘[I]dentical words used in

different parts of the same act are intended to have the same

meaning.’’). Indeed, NAS itself stated that its ‘‘[f]indings and

recommendations to EPA on the technical bases for Yucca

Mountain standards were provided in the [NAS Report].’’

NAS Comments at 2. Given that report’s silence on the need

for a separate ground-water standard, EPA’s decision to add

distinct ground-water protections rests on ‘‘a permissible

construction’’ of EnPA section 801. See Chevron, 467 U.S. at

843.

NEI’s final statutory argument requires little discussion.

Pointing out that EnPA directs EPA to protect ‘‘the public

from releases from radioactive materials stored or disposed of

in the repository at the Yucca Mountain site,’’ EnPA

48

§ 801(a)(1), NEI argues that the regulation impermissibly

applies not just to ‘‘releases,’’ but to preexisting background

radiation as well. It is true, as NEI observes, that the

ground-water standard caps the permissible level of radiation

contamination by requiring inclusion of ‘‘natural background’’

radiation in the calculation of ‘‘[c]ombined radium-226 and

radium-228’’ as well as ‘‘[g]ross alpha activity.’’ 40 C.F.R.

§ 197.30 (Table 1); see also 66 Fed. Reg. at 32,114 (requiring

that ‘‘DOE combine certain estimated releases from the Yuc-

ca Mountain disposal system with the pre-existing naturally

occurring or man-made radionuclides to determine the con-

centration in the representative volume [of ground water]’’).

Part 197, however, does not regulate background radiation.

See 40 C.F.R. § 197.30 (requiring DOE to demonstrate that

‘‘releases of radionuclides from waste in the Yucca Mountain

disposal system into the accessible environment will not cause

the level of radioactivity TTT to exceed the limits in TTT Table

1.’’ (emphasis added)). As EPA explains, the rule requires

only that DOE take background levels into account when

measuring permissible releases of radionuclides from the

repository. See id. (Table 1). Therefore, part 197 could not

possibly run afoul of EnPA’s focus on released radiation.

3. Arbitrary and Capricious Challenge

NEI also attacks EPA’s ground-water standard as arbi-

trary and capricious. Part 197 requires DOE to show that

the level of radioactivity in the ground water outside the

designated controlled area will not exceed the maximum

contaminant levels for radionuclides that the agency estab-

lished under the Safe Drinking Water Act. See id.; 66 Fed.

Reg. at 32,106. Challenging these MCL limits, NEI claims

that their underlying ‘‘critical organ dose’’ methodology rests

on obsolete science, yields erratic health risks beyond the

high and low limits of EPA’s risk range, and conflicts with

other federal radiation-protection standards. NEI advances

a number of highly complex scientific arguments in support of

these attacks, but we need not address them here because we

rejected the same arguments last year in City of Waukesha v.

EPA.

49

In City of Waukesha, we denied NEI’s challenge to EPA’s

Safe Drinking Water Act regulations, finding the agency’s

chosen methodology for its beta/photon MCLs consistent with

the SDWA’s ‘‘best available science’’ requirement and reason-

able under the APA. See 320 F.3d at 255-57. Specifically,

we saw ‘‘nothing unreasonable about EPA’s assertion that

[its] approach was consistent with the ‘best available science,’

and nothing arbitrary about its decision to [use older MCL

standards] under these circumstances.’’ Id. at 256. NEI’s

‘‘obsolete science’’ claim therefore cannot prevail here. Nor

can we accept NEI’s second argument – that EPA acted

arbitrarily by failing to choose a methodology for the Yucca

Mountain site that would yield consistent risk levels – be-

cause City of Waukesha upheld EPA’s decision to use the

selected MCLs despite their failure to provide uniform pro-

tection levels. See id. at 256-57 (concluding that the agency

acted reasonably in declining to promulgate uniform stan-

dards because risk variations in virtually all cases were

confined to the acceptable range). NEI’s third argument –

that EPA’s Yucca rule conflicts with other federal radiation-

protection standards – likewise founders in light of City of

Waukesha, which concluded that EPA’s MCL standards re-

lied on prevailing federal radiation guidance. See id. at 255-

56. Finally, even if City of Waukesha had not disposed of

this issue and even were there some inconsistency between

part 197’s ground-water standard and other official radiation-

protection guidance, NEI has nonetheless failed to show why

any such inconsistency would make EPA’s use of these stan-

dards at Yucca unreasonable. See id. at 248 (‘‘We may reject

an agency’s choice of scientific model only when the model

bears no rational relationship to the characteristics of the

data to which it is applied.’’ (internal quotation marks omit-

ted)).

NEI also contends that EPA acted arbitrarily by justifying

its decision to adopt a ground-water standard on cost grounds

without first conducting a cost-benefit analysis. The pream-

ble to part 197’s final version states that ‘‘[b]ecause of the

expenses and difficulties associated with remediation of con-

taminated ground water, it is prudent and cost-effective to

50

prevent the occurrence of such contamination.’’ 66 Fed. Reg.

at 32,106. In our view, however, EPA adequately explained

its reasons for adopting the ground-water standard: Not only

did the agency conclude (unremarkably) that an ounce of

prevention is worth a pound of cure, but it explained that

adding a ground-water standard would produce other salu-

tary effects, i.e., ‘‘encourag[ing] a robust containment and

isolation design that will not result in unacceptable contami-

nation during the regulatory time frame.’’ Id. at 32,108; see

also Response to Comments at 6-12 (‘‘We believe that

ground-water protection standards will confer greater protec-

tion to aquatic or biological communities [than an individual-

protection standard alone] by limiting the contamination of

ground water that would discharge to the surface, such as

springs or seep areas.’’).

Finally, NEI contends that EPA acted unreasonably by

regulating ground water with MCLs that were designed to

apply ‘‘at the tap,’’ i.e., after treatment. But even if the

MCLs were intended to apply ‘‘at the tap’’ in the SDWA

context, NEI gives us no basis for second-guessing EPA’s

decision to import these standards to the Yucca Mountain

site. As we have explained, EPA has offered an entirely

rational reason for protecting water resources while they

remain underground: Preventing ground water contamina-

tion is more cost-effective and environmentally protective,

and applying MCL standards will encourage a robust contain-

ment and isolation design. See 66 Fed. Reg. at 32,106-08.

By contrast, if the repository contaminates local ground wa-

ter, ‘‘future generations will have to decide whether to forego

use of the ground-water resource or to expend substantial

resources to clean [it] upTTTT This would violate one of the

primary principles in radioactive waste management TTT that

radioactive waste disposal should place no undue burdens

upon future generations.’’ Response to Comments at 6-13.

III. THE NRC CASES

Nevada and two of its political subdivisions – Clark County

and the City of Las Vegas (collectively, Nevada or the

51

State) – challenge two NRC actions in separate cases which

we have consolidated for review. In case number 02-1116,

Nevada petitions for review of the requirements and criteria

promulgated by NRC in part 63 of its regulations for licens-

ing the Department of Energy’s planned repository at Yucca

Mountain for the disposal of spent nuclear fuel and high-level

radioactive waste. See Disposal of High-Level Radioactive

Wastes in a Proposed Geologic Repository at Yucca Moun-

tain, NV, 66 Fed. Reg. 55,732 (final rule Nov. 2, 2001)

(codified at 10 C.F.R. pt. 63) [hereinafter part 63]. In a

related case, number 03-1058, Nevada petitions for review of

NRC’s denial of its petition for rulemaking (submitted eight

months after NRC published part 63 in the Federal Register)

seeking various amendments to NRC’s requirements and

criteria, all of which were directed at ensuring that DOE, as

part of the anticipated licensing process, demonstrate that

Yucca Mountain’s geologic makeup provides the ‘‘primary’’

barrier for isolating radioactive waste from the human envi-

ronment. See State of Nevada; Denial of a Petition for

Rulemaking, 68 Fed. Reg. 9023 (Feb. 27, 2003). Although

Nevada’s two cases take different tacks, both essentially

challenge NRC’s requirements and criteria for licensing a

radioactive waste repository at Yucca Mountain.

Nevada challenges part 63 on multiple grounds. First,

Nevada claims that NRC violated the NWPA by permitting

the licensing of a repository that does not isolate waste

primarily by geologic means and does not provide multiple,

independent barriers to prevent the escape of radionuclides

from the repository. As part of this claim Nevada further

maintains that, by abandoning the so-called multiple-barrier

approach, NRC acted arbitrarily and capriciously, in violation

of the Administrative Procedure Act. Second, Nevada claims

that NRC violated EnPA by failing to require that DOE’s

planned repository comply with EPA’s part 197. 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) [hereinafter part 197]. Next,

Nevada claims that NRC violated the NWPA, the Atomic

Energy Act (AEA), 42 U.S.C. §§ 2011 et seq. (2000), and the

52

National Environmental Policy Act (NEPA), 42 U.S.C.

§§ 4321 et seq. (2000), by precluding challenges to DOE’s

peak radiation dose calculations required by part 63 and

violated the APA by limiting the period for evaluating the

repository’s performance to 10,000 years following the place-

ment of waste there. Finally, Nevada claims that NRC

violated the APA by adopting a ‘‘lax’’ ‘‘reasonable expecta-

tion’’ standard of proof for assessing the repository’s ultimate

performance. See Petitioners’ Br. at 66-75.

For the reasons set forth below, we grant Nevada’s petition

for review in part and deny it in part. Before we turn to the

merits of Nevada’s claims, however, we must address NRC’s

assertion that, for the most part, we lack jurisdiction to do so.

A. Jurisdiction and Timeliness

NRC contends that we lack jurisdiction to entertain Neva-

da’s petition for review of the part 63 licensing requirements

and criteria (case No. 02-1116) because it was untimely filed

under the Hobbs Act, 28 U.S.C. § 2342, which allows 60 days

for filing a petition for review of final agency action, id.

§ 2344. See Respondent’s Br. at 18-25. NRC argues that

Nevada is not entitled to the benefit of the NWPA’s longer,

180-day window for commencing a civil action challenging

agency action taken ‘‘under’’ subtitle A of the Act provided in

section 119,1 42 U.S.C. § 10139(c), because in promulgating

part 63 NRC did not take action ‘‘under’’ the NWPA.

1 Section 119 of the NWPA provides in pertinent part:

[T]he United States courts of appeals shall have original

and exclusive jurisdiction over any civil action –

(A) for review of any final decision or action of the

Secretary, the President, or the Commission under

this part;

(B) alleging the failure of the Secretary, the Presi-

dent, or the Commission to make any decision, or take

any action, required under this part; [or]

(C) challenging the constitutionality of any decision

made, or action taken, under any provision of this

partTTTT

42 U.S.C. § 10139(a)(1)(A)-(C) (emphases added).

53

NRC first observes that, while the NWPA requires NRC to

promulgate ‘‘technical requirements and criteria,’’ it directs

NRC to do so ‘‘pursuant to authority under other provisions

of law.’’2 42 U.S.C. § 10141(b)(1)(A) (emphasis added). NRC

next points out that the NWPA manifests that NRC’s author-

ity under ‘‘other provisions of law’’ refers to the AEA and the

Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §§ 5801

et seq. (2000). Because the NWPA directs NRC to promul-

gate ‘‘requirements and criteria’’ under preexisting authority

conferred by the AEA, NRC did not promulgate part 63

‘‘under’’ the NWPA but ‘‘under’’ the AEA. Therefore, as

NRC regulations issued under the AEA are reviewable under

the Hobbs Act, 42 U.S.C. § 2239(a)-(b), which requires a

petition for review to be filed within sixty days following

issuance of the agency’s final rule, see 28 U.S.C. §§ 2342,

2344, Nevada’s petition – filed 160 days after NRC issued its

final licensing criteria – is untimely. NRC does concede that

we retain jurisdiction to address the sole claim made in

Nevada’s second petition for review (case No. 03-1058) – i.e.,

that the NWPA requires Yucca Mountain’s geology to serve

as the repository’s primary mechanism for isolating radioac-

tive waste from the human environment – because ‘‘in the

2 Section 121 of the NWPA provides in pertinent part:

[T]he Commission, pursuant to authority under other pro-

visions of law, shall, by rule, promulgate technical require-

ments and criteria that it will apply, under the Atomic

Energy Act of 1954 (42 U.S.C. 2011 et seq.) and the

Energy Reorganization Act of 1974 (42 U.S.C. 5801 et

seq.), in approving or disapproving –

(i) applications for authorization to construct reposito-

ries;

(ii) applications for licenses to receive and possess

spent nuclear fuel and high-level radioactive waste in

such repositories; and

(iii) applications for authorization for closure and de-

commissioning of such repositories.

42 U.S.C. § 10141(b)(1)(A).

54

Hobbs Act context this [c]ourt has approved the petition for

rulemaking device to trigger a new opportunity to seek

substantive judicial review of agency rules.’’ Respondent’s

Br. at 28; see also Nat’l Mining Ass’n v. DOI, 70 F.3d 1345,

1350 (D.C. Cir. 1995) (‘‘[O]ur cases TTT have permitted chal-

lenges to rules beyond the statutory period. We have re-

peatedly recognized that such challenges may be brought as

petitions for a new rule and thereafter as petitions for review

of an agency denial.’’). We do not accept NRC’s theory and,

as set forth below, hold that Nevada’s petition for review of

NRC’s part 63 – case No. 02-1116 – was timely filed under

section 119 of the NWPA. See 42 U.S.C. § 10139(c).

Statutes providing for judicial review, including section 119

of the NWPA, 42 U.S.C. § 10139, ‘‘are jurisdictional in nature

and must be construed with strict fidelity to their terms.’’

Stone v. INS, 514 U.S. 386, 405 (1995); accord Slinger

Drainage, Inc. v. EPA, 237 F.3d 681, 682-83 (D.C. Cir. 2001).

While the NWPA’s judicial review provisions admittedly are

far from a ‘‘model of clarity,’’ Natural Res. Def. Council v.

Abraham, 244 F.3d 742, 743 (9th Cir. 2001); accord Tennes-

see v. Herrington, 806 F.2d 642, 647 (6th Cir. 1986) (‘‘NWPA’s

provisions on judicial review are unclear.’’), we conclude that

NRC issued part 63 ‘‘under’’ section 121 of the NWPA as we

understand that section’s use of this critical term. See 42

U.S.C. § 10139(a)(1)(A)-(C). NRC, relying on the Ninth Cir-

cuit’s decision in Natural Res. Def. Council v. Abraham, 244

F.3d at 746-47, maintains that ‘‘the sine qua non of NWPA

jurisdiction is that the agency action come ‘at least under the

Act.’ ’’ Respondent’s Br. at 20 (emphasis in original (citing

and quoting Natural Res. Def. Council v. Abraham, 244 F.3d

at 747)). We have no quarrel with the commonsensical

proposition that section 119 brings within judicial purview

only those final agency actions embraced by the express

language of the NWPA. See Natural Res. Def. Council v.

Abraham, 244 F.3d at 747 (‘‘NWPA’s provision for judicial

review is limited to decisions ‘under’ the part, or at least

under the Act when the decision is pursuant to a part of the

Act and relates to the purposes of the part in which the

55

judicial review provision is placed.’’ (emphases in original));

Herrington, 806 F.2d at 647 (section 119 provides for review

of ‘‘certain actions arising under the Act’’ (emphasis added));

Gen. Elec. Uranium Mgmt. Corp. v. DOE, 764 F.2d 896, 901

(D.C. Cir. 1985) (section 119 provides for review of ‘‘any final

decision or action ‘under’ ’’ the NWPA (quoting 42 U.S.C.

§ 10139(a)(1)(A))). We do, however, part company with NRC

when it asserts that NRC’s challenged actions ‘‘implicated’’

the NWPA but were not taken ‘‘under’’ it. Respondent’s Br.

at 19-20.

Section 121 of the NWPA provides that NRC

pursuant to authority under other provisions of law,

shall, by rule, promulgate technical requirements

and criteria that it will apply, under the [AEA] TTT

and the [ERA] TTT, in approving or disapproving –

(i) applications for authorization to construct

repositories;

(ii) applications for licenses to receive and pos-

sess spent nuclear fuel and high-level radioac-

tive waste in such repositories; and

(iii) applications for authorization for closure

and decommissioning of such repositories.

42 U.S.C. § 10141(b)(1)(A). NRC seizes on section 121’s

instruction that NRC use authority granted ‘‘under other

provisions of law’’ – as well as its explicit reference to those

authorities (the AEA and the ERA) – to accomplish what the

section commands it to do: promulgate ‘‘requirements and

criteria’’ to apply to the three types of listed applications. In

focusing on section 121’s reference to ‘‘authority under other

provisions of law,’’ however, NRC overlooks the fact that

section 121 itself – and not any of NRC’s preexisting authori-

ty under the AEA and the ERA – specifically directs NRC to

adopt ‘‘requirements and criteria’’ to review the specified

applications. See id. § 10141(b).

NRC likewise ignores that, in addition to directing NRC to

adopt ‘‘requirements and criteria,’’ section 121 imposes con-

straints on the form the ‘‘requirements and criteria’’ may

take. Id. § 10141(b)(1)(B)-(C). Section 121 provides, for

example, that the ‘‘requirements and criteria’’ promulgated by

56

NRC ‘‘shall provide for the use of a system of multiple

barriers in the design of the repository and shall include such

restrictions on the retrievability of the solidified high-level

radioactive waste and spent fuel emplaced in the repository

as the Commission deems appropriate.’’ Id. § 10141(b)(1)(B).

Section 121 also requires that NRC’s ‘‘requirements and

criteria shall not be inconsistent with any comparable stan-

dards promulgated by’’ EPA. Id. § 10141(b)(1)(C).

Our conclusion that NRC promulgated its licensing criteria,

at least in part, ‘‘under’’ the NWPA is buttressed by section

801 of EnPA. See EnPA § 801(b)(1). That section, in the

plainest of language, directs NRC to ‘‘modify its technical

requirements and criteria under section 121(b) of the

[NWPA], as necessary, to be consistent with [EPA’s] stan-

dards.’’ Id. (emphasis added). Therefore, it is simply impos-

sible for us to say, as NRC would have us do, that NRC did

not act ‘‘under’’ the NWPA, at least in part, when it promul-

gated part 63.

NRC insists that NRC’s authority to regulate the DOE’s

disposal of high-level radioactive wastes predated the passage

of the NWPA and therefore NRC had no need to, and did

not, act ‘‘under’’ the NWPA in promulgating part 63. Specifi-

cally, NRC alleges that section 202 of the ERA, 42 U.S.C.

§ 5842, (not the NWPA) ‘‘gave the NRC the power (and the

obligation) to regulate DOE’s proposed Yucca Mountain re-

pository.’’ Respondent’s Br. at 22. NRC’s argument, howev-

er, is somewhat beside the point. That Congress may have

authorized NRC to regulate DOE’s disposal of radioactive

waste before it enacted the NWPA, compare 42 U.S.C.

§ 5842(3) (providing for licensing and related regulatory au-

thority over ‘‘[f]acilities used primarily for the receipt and

storage of high-level radioactive wastes resulting from activi-

ties licensed under such Act’’); Disposal of High-Level Radio-

active Wastes in Geologic Repositories: Licensing Proce-

dures, 46 Fed. Reg. 13,971 n.1 (final rule Feb. 25, 1981) (‘‘The

Commission interprets ‘storage’ as used in the [ERA] to

include disposal.’’), with 42 U.S.C. § 10134(d) (under the

NWPA ‘‘[t]he Commission shall consider an application for a

construction authorization for all or part of a repository in

57

accordance with the laws applicable to such applications’’),

hardly negates the fact that in the NWPA Congress specifi-

cally directed NRC to issue ‘‘requirements and criteria’’ for

evaluating repository-related applications and, not insignifi-

cantly, how to do so.

We also think that NRC’s reliance on the First Circuit’s

decision in NRDC v. EPA, 824 F.2d 1258 (1st Cir. 1987), is

misplaced. There, the First Circuit decided to exercise

Hobbs Act jurisdiction regarding a petition for review of

standards promulgated by EPA ‘‘pursuant to the directive of

the NWPA’’ because the Hobbs Act authorizes ‘‘judicial re-

view of final orders under the [AEA].’’ Id. at 1263, 1267 n.7.

NRC says a similar result should occur here because the

First Circuit based the exercise of Hobbs Act jurisdiction on

Congress’s instruction to EPA to promulgate its standards

‘‘pursuant to authority under other provisions of law,’’ which

is the precise instruction it gave NRC in section 121 of the

NWPA. See Respondent’s Br. at 20. But the First Circuit

did not confront the issue we confront; section 119 expressly

authorizes judicial review of actions taken by NRC under the

NWPA but does not do so for those taken by EPA. See 42

U.S.C. § 10139(a)(1)(A)-(B). Thus, the First Circuit in

NRDC v. EPA had no occasion to, and in fact did not, choose

between NWPA and Hobbs Act jurisdiction. See 824 F.2d at

1267 n.7. Nor has any other court addressed precisely this

issue so far as the parties or we can tell.

Section 119 requires that ‘‘any civil action’’ seeking review

of a final NRC ‘‘decision or action’’ under the NWPA, as well

as any action challenging NRC’s failure to make a decision or

take an action under the Act, must be filed ‘‘not later than the

180th day’’ following the challenged decision, action or failure

to act. 42 U.S.C. § 10139(a), (c). Nevada filed its petition

for review of part 63 on April 11, 2002, 160 days after NRC

published part 63 in the Federal Register. See 66 Fed. Reg.

55,732. Because Nevada filed its petition for review of NRC’s

action in promulgating part 63 – an action it took ‘‘under’’ the

NWPA – well within the time allowed by section 119, see 42

U.S.C. § 10139(c), we conclude that its petition is timely.

58

Having found Nevada’s petition for review in case number

02-1116 timely, we accordingly turn now to its merits. Be-

cause we address (and reject) the sole claim raised in Neva-

da’s petition for review in case number 03-1058 – that is, its

challenge to NRC’s denial of its petition for rulemaking – in

reviewing its first petition, however, we need not separately

address that petition.

B. Nevada’s Merits Claims

We review NRC’s challenged actions under the familiar

administrative law standards noted above. We defer to

NRC’s interpretation of the NWPA under Chevron, 467 U.S.

at 842-43. See Op. supra at 24; see also Barnhart v. Walton,

535 U.S. 212, 218 (2002). Outside the arena of statutory

interpretation, we will affirm the Commission’s action unless

it is ‘‘arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law[.]’’ 5 U.S.C. § 706(2)(A); see

City of Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1164

(D.C. Cir. 1987). We require only that the agency ‘‘examine

the relevant data and articulate a satisfactory explanation for

its action including a ‘rational connection between the facts

found and the choice made.’ ’’ Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(quoting Burlington Truck Lines v. United States, 371 U.S.

156, 168 (1962)). We are ‘‘extreme[ly]’’ deferential, however,

to an agency ‘‘ ‘evaluating scientific data within its technical

expertise.’ ’’ Huls Am. Inc. v. Browner, 83 F.3d 445, 452

(D.C. Cir. 1996) (quoting Int’l Fabricare Inst. v. EPA, 972

F.2d 384, 389 (D.C. Cir. 1992)). With the exception of the

selection of a 10,000-year compliance period, discussed below,

see Op. infra at 72-74, the NRC actions under review meet

these standards.

1. Primary Barrier and Multiple Barriers Claims

a. The Primary Barrier Claim

Nevada first charges that part 63 flouts Congress’s unam-

biguous directive that Yucca Mountain’s geologic features

must serve as the repository’s primary means of isolating

radioactive waste from the human environment. Nevada

acknowledges that part 63 provides that the ‘‘geologic reposi-

59

tory must include multiple barriers, consisting of both natural

barriers and an engineered barrier system.’’ 10 C.F.R.

§ 63.113(a). Likewise, it recognizes that part 63 requires

DOE to identify the features ‘‘that are considered barriers

important to waste isolation’’ of both the natural geologic

setting and the engineered barrier system and to describe,

with technical support, their respective capabilities to isolate

waste. Id. § 63.115(a)-(c). Nevada argues that part 63 is

nevertheless flawed, however, because nowhere does it re-

quire that Yucca Mountain’s geologic features provide ‘‘inde-

pendent or primary waste isolation capabilities.’’ Petitioners’

Br. at 43.

Nevada calls to our attention various provisions of the

NWPA that it believes demonstrate that Congress intended

the geologic features of the DOE’s planned repository to act

as the primary barrier for isolating waste from the human

environment. The NWPA defines ‘‘repository’’ as ‘‘any sys-

tem’’ for ‘‘the permanent deep geologic disposal of high-level

radioactive waste and spent nuclear fuel.’’ 42 U.S.C.

§ 10101(18). Nevada also invokes sections 112 and 113 of the

NWPA which, in its view, ‘‘emphasize the central importance

of a site’s physical characteristics to determining its suitabili-

ty [as a repository].’’ Petitioners’ Br. at 45. Nevada points

out that section 112 requires ‘‘geologic considerations’’ to

serve as the ‘‘primary criteria for the selection of sites in

various geologic media.’’ 42 U.S.C. § 10132(a). It also notes

that section 113 contemplates that DOE may find a candidate

site ‘‘unsuitable’’ for development as a repository, see 42

U.S.C. § 10133(c)(3), a finding it believes would not make

sense ‘‘unless the site itself, without engineered barriers,

could fail to meet disposal safety requirements.’’ Petitioners’

Br. at 45. Based on these statutory references, Nevada

concludes that ‘‘[i]t would make little sense for Congress to

require that DOE focus on a site’s physical characteristics in

analyzing the site’s suitability, only to be indifferent to wheth-

er NRC reduced such characteristics to an afterthought in

any subsequent licensing proceedings.’’ Id.

60

Nevada further explains that section 113 requires that, in

determining a candidate site’s suitability as a repository,

DOE must conduct site-characterization activities in accor-

dance with section 112, 42 U.S.C. § 10133(b)(1)(A)(iv), which

section provides that ‘‘geologic considerations TTT shall be

[the] primary criteria.’’ Id. § 10132(a). Moreover, because

the NWPA limits DOE’s site-characterization activities to

those necessary to evaluate the site’s suitability to apply to

NRC for construction authorization, see id. § 10133(c)(1),

Nevada maintains that it necessarily follows that NRC’s

licensing criteria must also require that a repository’s geolog-

ic features serve as the ‘‘primary’’ means for isolating waste.

Otherwise, according to Nevada, ‘‘it would have made no

sense for Congress to have required DOE to make this the

primary factor in determining whether’’ to file an application

with NRC. Petitioners’ Br. at 46 (emphasis in original).

NRC initially faults Nevada for failing to take up this

statutory claim with the Commission before raising it on

review. It maintains that Nevada never asserted during

NRC’s public comment period that the NWPA requires the

repository’s geologic features to serve as the primary barrier

and, consequently, Nevada has waived that argument. We

conclude, however, that Nevada adequately raised the pri-

mary barrier claim to avoid the consequences of our waiver

doctrine. ‘‘Absent special circumstances, a party must initial-

ly present its comments to the agency during the rulemaking

in order for the court to consider the issue.’’ Tex Tin Corp.

v. EPA, 935 F.2d 1321, 1323 (D.C. Cir. 1991) (emphasis

added); accord Nebraska v. EPA, 331 F.3d 995, 997 (D.C.

Cir. 2003). ‘‘As a general rule, claims not presented to the

agency may not be made for the first time to a reviewing

court.’’ Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C. Cir.

1996). To preserve a legal or factual argument, we require

its proponent to have given the agency a ‘‘fair opportunity’’ to

entertain it in the administrative forum before raising it in

the judicial one. Wash. Ass’n for Television & Children v.

FCC, 712 F.2d 677, 681 (D.C. Cir. 1983); see Nat’l Ass’n of

Mfrs. v. DOI, 134 F.3d 1095, 1111 (D.C. Cir. 1998).

61

Nevada has the better of this argument; we believe that it

did not waive its primary barrier claim. It contends that it,

and others, made the claim to NRC during the public com-

ment period which closed on June 30, 1999. See 66 Fed. Reg.

at 55,732-33. As far as we can tell from the two record

citations the State offers us, however, neither it nor any other

commenter advanced the argument it presses here during

NRC’s public comment period. See Tr. of Proceedings, Unit-

ed States of America, Nuclear Regulatory Commission, Public

Meeting on Proposed Regulations (10 Part 63) For a High-

Level Waste Repository at Yucca Mountain, NV, June 16,

1999, at 82-84, reprinted in Joint Appendix (J.A.) 76-78

(stating that DOE definition of defense-in-depth3 originally

meant that ‘‘geologic barriers were supposed to supply the

main barrier to transport of radioactive waste once the repos-

itory started leaking’’ and inquiring of NRC staff whether

DOE could ‘‘acceptabl[y]’’ rely primarily on man-made con-

tainers to secure waste); Comments of the Inst. for Energy

& Env’t Research on the Draft NRC Rule on Disposal of

High-Level Radioactive Wastes in a Proposed Repository at

Yucca Mountain, NV, June 30, 1999, at 1-2, reprinted in J.A.

108-09 (‘‘Allowing primary reliance on engineered barriers for

waste isolation would be inappropriate.’’ (emphasis added)).

Nevada did raise the argument it advances here during a

public meeting NRC held on November 2, 1999 to discuss the

defense-in-depth notion ‘‘as applied to a possible high-level

waste repository at Yucca Mountain.’’ Official Tr. of Pro-

ceedings, United States of America, Nuclear Regulatory

Commission, Pubic Meeting – A Facilitated Roundtable Dis-

cussion on Defense in Depth as Applied to a Possible High-

Level Waste Repository at Yucca Mountain, NV, Nov. 2,

1999, at 1, 76-77, reprinted in J.A. 113, 119-20 (capitalization

altered). There, a representative of the Nevada Agency for

3 NRC uses ‘‘defense-in-depth’’ to mitigate the uncertainties in-

volved in ensuring the safety of complex facilities by requiring

multiple and redundant safety barriers. See 64 Fed. Reg. at 8647;

see also Op. infra at 68.

62

Nuclear Projects observed that NRC had to follow the

NWPA’s command, expressed in section 112, that ‘‘geologic

factors shall be primary’’ in evaluating both Yucca Mountain’s

natural features and DOE’s engineered barriers and their

respective roles in waste isolation. See id. at 119-20. This is

in essence the same point Nevada raises here.

NRC maintains, however, that the statement does not

count because it came too late. It asserts that the Nevada

representative made the statement during a public meeting

that occurred several months after the public comment period

closed and that NRC had made clear that the meeting was

not intended to reopen that period. But NRC’s representa-

tions were far more equivocal than NRC would lead us to

believe and, taken together, indicate that the public comments

it received during the meeting would in fact figure in its

decision-making process. Compare J.A. 122 (‘‘[T]his is not an

extra public comment period. It is a way to help us make

more clear what we’ve put out in our proposal and to under-

stand better the comments that we’ve receivedTTTT’’), with

J.A. 117 (‘‘[W]e’re here in the process of responding to public

comments on Part 63, and we are here to get your input on

this particular issue [the defense-in-depth issue] as we final-

ize Part 63.’’ (emphasis added)); J.A. 126 (‘‘[T]hat comment,

as well as all of the other very fine comments that we’ve

heard today, will be carried back [to NRC].’’). Our conclu-

sion is further bolstered by NRC’s own words. In the

Supplemental Information accompanying the final version of

part 63, NRC referred to this very meeting in a context which

plainly suggests that it considered what occurred there in

developing its regulation.4 See 66 Fed. Reg. at 55,732-33.

Accordingly, we conclude that Nevada gave NRC a ‘‘fair

opportunity’’ to pass on its primary barrier claim. See Wash.

Ass’n for Television & Children, 712 F.2d at 681. The State

4 NRC explained that ‘‘[i]n developing this final rule, [it] consid-

ered comments received at’’ various public meetings, noting that it

‘‘also held a facilitated round table discussion on defense in depth as

applied to a possible repository at Yucca Mountain on November 2,

1999, in Las Vegas.’’ 66 Fed. Reg. at 55,733.

63

made its point – more than two years before part 63 was

published – during a public meeting held, as we have noted,

for the express purpose of discussing defense-in-depth. And

NRC expressly acknowledged that meeting in the Supple-

mental Information. See Op. supra at note 4. Nevada wins

the battle, however, only to lose the war.

Under Chevron Step One, we use the customary statutory

construction tools of text, structure and purpose. See Ca.

Metro Mobile Communications, Inc. v. FCC, 365 F.3d 38, 44-

45 (D.C. Cir. 2004). Using those tools, we find nothing that

unambiguously prohibits NRC from deciding not to require

DOE to build a repository that relies on the repository’s

geologic setting to provide the primary mechanism for isolat-

ing waste from the human environment. Indeed, the

NWPA’s language instructs otherwise. In section 121 Con-

gress specifically directs NRC to issue ‘‘technical require-

ments and criteria’’ that ‘‘provide for the use of a system of

multiple barriers in the design of the repository.’’ 42 U.S.C.

§ 10141(b)(1)(B) (emphasis added). The NWPA contains no

language indicating that NRC is to assign a rating to any

single barrier – whether natural or artificial – in a repository

with a ‘‘system of multiple barriers.’’ Id.; cf. id. § 10101(12)

(‘‘ ‘[E]ngineered barriers’ means manmade components of a

disposal system designed to prevent the release of radionu-

clides into the geologic medium involved.’’); id. § 10101(18)

(‘‘ ‘[R]epository’ means any system licensed by the Commis-

sion that is intended to be used for, or may be used for, the

permanent deep geologic disposal of high-level radioactive

waste and spent nuclear fuelTTTT’’ (emphasis added)).

Nor does section 121 say anything about the barrier the

repository’s geologic composition must provide in the ‘‘system

of multiple barriers.’’ Id. § 10141(b). Congress did, howev-

er, circumscribe NRC’s rulemaking authority in section 121 in

three significant respects, only one of which is directly rele-

vant here – i.e., NRC must require a repository to ‘‘use TTT a

system of multiple barriers.’’ Id. § 10141(b)(1)(B). We find

it telling that Congress refrained from further delimiting

NRC’s authority in section 121. If Congress had intended to

64

mandate that the ‘‘requirements and criteria’’ give primacy to

a repository’s geologic makeup, it would have expressly so

provided – especially given that such an additional restriction

on NRC’s authority would be significant. See Indep. Ins.

Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643-44 (D.C. Cir.

2000) (relying on expressio unius est exclusio alterius canon

to find provision of National Bank Act expressly authorizing

banks in smaller locales to sell insurance ‘‘strongly con-

firm[ed] the view that the more general grant in [a second

provision of the Act] did not include broad insurance pow-

ers’’). We are therefore hard pressed to conclude that Con-

gress ‘‘has directly spoken to the precise question at issue’’

here and decline to do so. Chevron, 467 U.S. at 842. Accord-

ingly, we move to Chevron Step Two and defer to NRC’s

interpretation of section 121 so long as it is based on a

permissible construction. See Chevron, 467 U.S. at 842-43;

Barnhart, 535 U.S. at 218.

Section 121 authorizes NRC to adopt ‘‘requirements and

criteria’’ to license a waste repository at Yucca Mountain

subject to the limitations outlined above. See 42 U.S.C.

§ 10141(b); see generally 10 C.F.R. § 63.113(a) (‘‘The geolog-

ic repository must include multiple barriers, consisting of

both natural barriers and an engineered barrier system.’’);

see also id. § 63.113(b)-(d) (‘‘engineered barriers TTT, working

in combination with natural barriers,’’ must meet certain

specific performance standards). None of the restrictions,

however, specifies how the requirements and criteria ‘‘shall

provide for the use of a system of multiple barriers in the

design of the repository’’ or the role that any particular

barrier must play in the system. 42 U.S.C. § 10141(b)(1)(B).

While Congress contemplated that the repository’s geologic

makeup was to play a significant role in isolating radioactive

waste, see id. §§ 10101(18), 10132(a), we cannot say that NRC

acted unreasonably in declining to read into section 121’s

otherwise plain wording a requirement that it serve as the

repository’s principal barrier for isolating waste. See id.

§ 10141(b)(1)(B).

Not surprisingly, Nevada eschews reliance on section 121 –

which speaks directly to NRC’s duty to issue requirements

65

and criteria for licensing a repository – in favor of other

provisions of the NWPA. None of the provisions to which it

directs our attention, however, even remotely compels NRC

to adopt requirements and criteria that put the greatest

burden for isolating waste on a repository’s geologic barrier

potential. In fact, the State relies on NWPA provisions that

govern actions taken by DOE, not NRC. It relies principally

on section 112 of the NWPA, which directs the DOE Secre-

tary to issue ‘‘general guidelines for the recommendation of

sites for repositories TTT [that] specify detailed geologic con-

siderations that shall be primary criteria for the selection of

sites in various geologic media.’’ Id. § 10132(a); see also id.

§§ 10133(b)(1)(A)(iv) (DOE to submit criteria used to deter-

mine a site’s suitability), 10133(c)(3)(A)-(F) (describing DOE’s

obligations upon determining site unsuitable).

The argument Nevada puts together from various provi-

sions of the NWPA – i.e., that NRC’s licensing criteria must

track DOE’s site-selection criteria emphasizing the site’s geol-

ogy – is similarly flawed in relying on the NWPA’s commands

to DOE. Of course, it would be strange for Congress in one

breath to require DOE to select a site suitable for a reposito-

ry based on geologic considerations, while in the next autho-

rizing NRC to ignore them. Congress’s directives to the

agencies were plainly intended to be complementary not

contradictory. NRC acknowledges as much. See 68 Fed.

Reg. at 9027 (‘‘It may be readily acknowledged that it would

make little sense for Congress to establish a system for

selecting a repository where DOE guidelines for selection of

sites and NRC regulations for licensing a repository would

contradict each other.’’). But complementary duties do not

have to be identical. No statutory language requires it and

there is nothing contradictory about Congress requiring DOE

to recommend a suitable repository site based on geologic

considerations, while instructing NRC to issue requirements

and criteria for licensing a repository based on the use of a

system of multiple barriers, including but not emphasizing,

the geologic barrier. See 68 Fed. Reg. at 9028.

Indeed, NRC’s requirements and criteria to license a re-

pository designed by DOE come into play only after DOE

66

selects a suitable site based on geologic considerations. See

42 U.S.C. §§ 10132(a); 10133(b); 10134; see also 68 Fed.

Reg. at 9027. Under the scheme the NWPA establishes,

DOE submits an application for authorization to construct a

repository with NRC after it selects a site under section 112

based on guidelines ‘‘specify[ing] detailed geologic consider-

ations that shall be primary criteria for selection of sites in

various geologic media,’’ 42 U.S.C. § 10132(a), and performs

characterization activities under section 113 to determine the

‘‘suitability of [the] site for the location of a repository,’’ id.

§ 10133(b)(1)(A)(iv). Thus, by statutory design, NRC’s li-

censing regulations are used to evaluate a repository pro-

posed by DOE at a site also selected by DOE after DOE has

considered the site’s geologic makeup. See id. §§ 10132(a),

10133(b)(1)(A)(iv). As NRC itself recognized, Congress had

‘‘no need to require, and did not require, NRC to issue

regulations making geologic considerations the ‘primary’ cri-

teria for approval of DOE’s license application for the reposi-

tory.’’ 68 Fed. Reg. at 9027.

Nevada’s non-textual contentions are equally unconvincing.

It relies on the First Circuit’s decision in NRDC v. EPA,

which declared that in the NWPA ‘‘Congress ordered that

these highly dangerous wastes be placed underground with

the intent that the surrounding geologic formations would be

the major component of the containment mechanism.’’ 824

F.2d at 1279. The court made the statement, however, in

treating a different issue – namely, whether EPA departed

from the ‘‘non-endangerment’’ mandate of the Safe Drinking

Water Act by permitting groundwater contamination within

the repository’s ‘‘controlled area.’’ Id. at 1276-79. Because

the court’s observation came in resolving EPA’s apparently

conflicting obligations under the SDWA and the NWPA, it

offers minimal support for Nevada’s contention.5 Id. at 1279.

5 The State also resorts to the legislative history of the NWPA,

asserting that it ‘‘leaves no doubt about the primacy of geologic

isolation.’’ Petitioners’ Br. at 46. But Nevada’s proffered citations

say not a word about whether Congress intended NRC to ensure

that the repository’s geologic features provide the primary barrier

for isolating waste from the human environment. See, e.g., H.R.

67

For the foregoing reasons, we conclude that NRC’s ‘‘re-

quirements and criteria’’ to license a nuclear waste repository

reasonably and permissibly implement section 121 of the

NWPA.

b. The Multiple Barriers Claims

Nevada next argues that NRC violated the NWPA’s re-

quirement that a repository incorporate a ‘‘multiple barriers’’

system by failing to include ‘‘any specific requirement for any

barrier to provide any degree of protection that is substan-

tially independent of the others.’’ Petitioners’ Br. at 49. In

not providing ‘‘safety redundancy’’ by specifying minimum

performance standards for each of the multiple barriers,

Nevada maintains, NRC ‘‘deprived’’ the multiple barriers

requirement of any ‘‘vitality.’’ Petitioners’ Br. at 49. We

disagree.

Although Congress statutorily required NRC’s ‘‘technical

requirements and criteria’’ to provide for multiple barriers, 42

U.S.C. § 10141(b)(1)(B), it did not address this precise issue.

See Chevron, 467 U.S. at 842-43. Nevertheless we find that

NRC’s interpretation of section 121 is ‘‘based on a permissible

construction of’’ the section. See Chevron, 467 U.S. at 843.

Pursuant to section 121, NRC must adopt technical require-

ments and criteria that ‘‘provide for the use of a system of

multiple barriers in the design of the repository.’’ 42 U.S.C.

§ 10141(b)(1)(B) (emphasis added). This is just what NRC

did. Section 63.113 of the NRC regulations requires that

‘‘[t]he geologic repository must include multiple barriers,

consisting of both natural barriers and an engineered barrier

system.’’ 10 C.F.R. § 63.113(a); see also id. § 63.102(h)

(‘‘uncertainties are addressed by requiring the use of a multi-

ple barrier approach; specifically, an engineered barrier sys-

tem is required in addition to the natural barriers provided

REP. NO. 97-491, pt. 1, at 30 (1982) (‘‘Commitment to a waste

disposal technology relying on primary geologic containment provid-

ed by a solid rock formation located deep underground, together

with containment by engineered barriers including the form and

packaging of the nuclear waste, which will provide safe containment

of the waste without reliance on human monitoring and mainte-

nanceTTTT’’ (emphasis added)).

68

by the geologic setting’’). The NRC regulations also require

that the ‘‘engineered barriers, working in combination with

natural barriers’’ meet certain performance standards. Id.

§ 63.113(b)-(d). Furthermore, in order to comply with sec-

tion 63.113, DOE must identify the design features of the

engineered barriers and the natural features of the reposito-

ry’s geologic makeup ‘‘that are considered barriers important

to waste isolation’’ as well as describe – backed by technical

support – their capabilities ‘‘to isolate waste, taking into

account uncertainties in characterizing and modeling the be-

havior of the barriers.’’ Id. § 63.115(a)-(c). Section 121 does

not, as Nevada contends, require that each barrier type

provide a quantified amount of protection or, indeed, indepen-

dent protection. See 42 U.S.C. § 10141(b)(1)(B). Its silence

instead gives NRC flexibility in determining how best to

‘‘provid[e] for the use of a system of multiple barriers in the

design of the repository.’’ See id. We think that NRC, in

implementing this requirement in the manner discussed

above, acted reasonably and permissibly. See Chevron, 467

U.S. at 843.

Nevada next asserts that even if section 121 does not

require barrier-by-barrier performance assessment, NRC ar-

bitrarily and capriciously abandoned its longstanding regula-

tory philosophy of ‘‘defense-in-depth.’’ See Petitioners’ Br. at

50-54. The defense-in-depth concept ensures that a geologic

repository system is robust; that is, that the system is

capable of withstanding unanticipated failures and other chal-

lenges to its integrity through the deployment of multiple and

redundant safety barriers. Specifically, Nevada contests

NRC’s use of defense-in-depth at the proposed Yucca Moun-

tain repository through an overall system performance as-

sessment rather than using the approach of its older regula-

tions, which approach tests the individual performance of the

repository’s ‘‘system elements.’’ See Disposal of High-Level

Radioactive Wastes in a Proposed Geologic Repository at

Yucca Mountain, NV, 64 Fed. Reg. 8640, 8648 (proposed rule

Feb. 22, 1999. (‘‘Commission opted to prescribe minimum

performance standards for each of the major system ele-

ments’’ in part 60)); see 10 C.F.R. § 60.113 (performance

standards for particular barriers). At bottom, Nevada main-

69

tains that NRC failed to explain adequately its departure

from the approach it took in part 60, which governs the

disposal of high-level radioactive wastes in geologic reposito-

ries other than Yucca Mountain and uses the sort of subsys-

tem performance assessment that part 63 eschews. See 10

C.F.R. § 60.113. We do not agree.

An agency is free to discard precedents or practices it no

longer believes correct. See, e.g., Motor Vehicle Mfrs. Ass’n,

463 U.S. at 57 (‘‘[A]n agency changing its course must supply

a reasoned analysis.’’); Ramaprakash v. FAA, 346 F.3d 1121,

1124-25 (D.C. Cir. 2003). Indeed we expect that any agency

may well change its past practices with advances in knowl-

edge in its given field or as its relevant experience and

expertise expands. See Ramaprakash, 346 F.3d at 1124. If

an agency decides to change course, however, we require it to

supply a ‘‘reasoned analysis indicating that prior policies and

standards are being deliberately changed, not casually ig-

nored.’’ Greater Boston Television Corp. v. FCC, 444 F.2d

841, 852 (D.C. Cir. 1970); see also Ramaprakash, 346 F.3d at

1124-25. And NRC has done so.

NRC set out its rationale in opting to evaluate the pro-

posed Yucca Mountain repository based on a total system

performance assessment in the Supplemental Information

accompanying both the proposed and the final part 63. See

66 Fed. Reg. at 55,758-59; 64 Fed. Reg. at 8647-50. NRC

initially observed that advances in knowledge of the earth

sciences undermined the need, reflected in part 60, to com-

pensate for the major uncertainties inherent in assessing the

long-term performance of geologic repositories. See 64 Fed.

Reg. at 8648-49. NRC stated that ‘‘experience and improve-

ments in the technology of performance assessment, acquired

over more than [fifteen] years, now provide significantly

greater confidence in the technical ability to assess compre-

hensively overall repository performance, and to address and

quantify the corresponding uncertainty.’’ Id. at 8649. More-

over, NRC noted that its early approach, adopted at a time

when quantitative techniques for assessing repository per-

formance were in their infancy, had failed to ‘‘gain[ ] broad

70

acceptance in the technical community’’; it cited both the

National Academy of Sciences and its own Advisory Commit-

tee as holding views critical of its approach. Id. According-

ly, NRC concluded that ‘‘advances in performance assessment

technology support the use of performance assessment re-

sults for estimating long term repository performance’’ and

that these advances ‘‘obviate[d] TTT the need to prescribe

arbitrary, minimum performance standards for subsystems to

build confidence in a system’s overall performance.’’ 66 Fed.

Reg. at 55,758.

Moreover, NRC expressed concern that, based on its fif-

teen years’ experience working with part 60, the application

of part 60’s subsystem performance standards ‘‘may impose

significant additional expenditure of resources on the nation’s

[high level waste] program, without producing any commen-

surate increase in the protection of public health and safety.’’

64 Fed. Reg. at 8649. NRC thus determined in the final rule

to give DOE ‘‘flexibility for deciding the extent and focus of

site characterization’’ and concluded that DOE, as the reposi-

tory’s designer, ‘‘may place greater or lesser reliance on

individual components of the repository system when deciding

how best to achieve the overall safety objective.’’ 66 Fed.

Reg. at 55,758.

Finally, NRC explained that part 60’s subsystem criteria,

as originally conceived, were ‘‘intended to be separate, ‘inde-

pendent,’ easily-determined measures of subsystem perform-

ance, determination of which would require only application of

technology that was readily available.’’ 64 Fed. Reg. at 8649.

According to NRC, however, ‘‘[e]xtensive experience with

site-specific performance assessment has shown [the subsys-

tem criteria] to be none of these.’’ Id. Indeed, as NRC

explained in the final rule, ‘‘[e]stimates of subsystem perform-

ance are subject to many, if not all, of the same sources of

uncertainty as are estimates of overall system performance’’

and concluded that ‘‘[i]t is questionable, therefore, whether

the subsystem criteria in part 60, or any other criteria, could

provide truly independent assurance of total system perform-

ance.’’ 66 Fed. Reg. at 55,758. In light of NRC’s detailed

analysis supporting its decision to evaluate the performance

of the Yucca Mountain repository based on the barrier sys-

71

tem’s overall performance, we believe that it adequately

explained its change in course. See, e.g., Motor Vehicle Mfrs.

Ass’n, 463 U.S. at 57. Accordingly, we conclude that NRC

acted neither arbitrarily nor capriciously in rejecting part 60’s

subsystem performance approach in favor of the overall per-

formance approach.

2. Compliance With EPA’s Part 197 in Construction

Authorization

Nevada alleges that NRC violated the NWPA and EnPA

by permitting construction of the Yucca Mountain repository

without first determining that there is a reasonable expecta-

tion that the repository will comply with the EPA standards.

Nevada maintains that, because NRC is required under both

the NWPA and EnPA to promulgate licensing requirements

and criteria that are consistent with the EPA standards,

NRC must ensure that the proposed repository will meet

those standards before it authorizes construction. According

to Nevada, however, NRC’s pertinent regulation, section

63.31, does not require the Commission to find that DOE’s

application for construction authorization complies with the

EPA standards set out in part 197, see 40 C.F.R. pt. 197, or

that the application satisfies the EPA standards as incorpo-

rated in part 63. Nevada points to paragraph 63.31(a)(3)(ii),

which provides that, in making its construction authorization

decision, NRC must simply ‘‘consider’’ whether ‘‘the site and

design comply with the performance objectives and require-

ments contained in subpart E’’ (requiring compliance with

EPA standards set forth in subpart L of part 63, see 10

C.F.R. § 63.113(b)). In Nevada’s view, NRC has ‘‘[c]learly

TTT unlawfully reserved for itself the discretion to authorize

repository construction even in the face of authoritative evi-

dence that it will not comply with NRC’s own (and EPA’s)

safety requirements.’’ Petitioners’ Br. at 56.

NRC in turn asserts that Nevada offered ‘‘no hint’’ of this

argument during NRC’s rulemaking proceedings and, as a

consequence, cannot now challenge section 63.31 on this

ground. Respondent’s Br. at 26. While Nevada does not

deny that it failed to raise the argument below, offering no

citation in the voluminous record where it did so, it counters

72

that it did not have to. Petitioners’ Reply Br. at 12-13.

Nevada maintains that its oversight was ‘‘both understanda-

ble and excusable’’ in that EPA did not propose its standards

until after the window for public comment on part 63 had

closed, and thus, the timing of NRC’s rulemaking proceedings

‘‘discourag[ed]’’ the public from commenting ‘‘on the interre-

lationship’’ of the two agencies’ regulations. Petitioners’ Re-

ply Br. at 12-13. We are unconvinced.

It is a hard and fast rule of administrative law, rooted in

simple fairness, that issues not raised before an agency are

waived and will not be considered by a court on review. See

United States v. L.A. Trucker Truck Lines, Inc., 344 U.S. 33,

37 (1952) (‘‘Simple fairness to those who are engaged in the

tasks of administration, and to litigants, requires as a general

rule that courts should not topple over administrative deci-

sions unless the administrative body not only has erred but

has erred against objection made at the time appropriate

under its practice.’’); see also Nat’l Wildlife Fed’n v. EPA,

286 F.3d 554, 562 (D.C. Cir. 2002) (‘‘[T]here is a near absolute

bar against raising new issues – factual or legal – on appeal in

the administrative context.’’); Nat’l Ass’n of Mfrs., 134 F.3d

at 1111 (‘‘ ‘Our cases TTT require complainants, before coming

to court, to give the [agency] a fair opportunity to pass on a

legal or factual argument.’ ’’ (quoting Wash. Ass’n for Televi-

sion & Children, 712 F.2d at 681 (alteration and emphasis in

original))). The rule applies with no less force to a statutory

interpretation claim not brought to an agency’s attention:

‘‘[R]espect for agencies’ proper role in the Chevron frame-

work requires that the court be particularly careful to ensure

that challenges to an agency’s interpretation of its governing

statute are first raised in the administrative forum.’’ Natural

Res. Def. Council v. EPA, 25 F.3d 1063, 1074 (D.C. Cir. 1994);

see also Ohio v. EPA, 997 F.2d 1520, 1528 (D.C. Cir. 1993);

Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1308-09

(D.C. Cir. 1991). Nevada failed to raise this claim before

NRC and consequently waived it.

3. 10,000-Year Compliance Period

Nevada next alleges that NRC breached its duty under the

AEA and the NWPA to safeguard the public health and

73

safety and arbitrarily and capriciously limited the period for

evaluating the repository’s performance to 10,000 years fol-

lowing the placement of waste there. According to Nevada,

NRC chose – based on political realities rather than hard

science – to assess the repository’s performance only for the

period preceding the time the repository will pose the great-

est health risk to future generations, ignoring the advice of

experts that there are no technical impediments to evaluating

the repository’s performance for a much longer period as well

as its own recognition that such an evaluation is feasible.

Nevada claims that it is unreasonable for NRC to require

DOE to compute the peak dose of radiation much further out

but for NRC not to consider the repository’s performance at

that time, claiming that the uncertainties related to human

behavior and exposure pathways in predicting the reposito-

ry’s performance during the 10,000 years following waste

placement can be addressed as well in assessing its perform-

ance thereafter. Nevada additionally faults NRC’s decision

to confine its evaluation of the repository’s performance to

10,000 years because, Nevada claims, NRC knows that a

reasonably maximally exposed individual will ‘‘likely’’ receive

a peak dose of radiation that exceeds NRC’s and EPA’s

limits. Petitioners’ Br. at 59.

In its proposed rule, NRC named three factors in propos-

ing the 10,000-year compliance period: (1) it ‘‘correspond[ed]

to the time period when the waste is inherently most hazard-

ous’’; (2) it ‘‘is sufficiently long, such that a wide range of

conditions will occur which will challenge the natural and the

engineered barriers, providing a reasonable evaluation of the

robustness of the geologic repository’’; and (3) it ‘‘is consis-

tent with other regulations involving geologic disposal of long-

lived hazardous materials, including radionuclides.’’ 64

This text is long and has been trimmed here. Open the source document for the complete record.