Nuclear Energy Institute, Inc. v. Environmental Protection Agency

Opinion for the Court filed Per Curiam. **

TABLE OF CONTENTS

I.Background .1258

II. The EPA Cases.1262

A. The EPA Rule: 40 C.F.R. part 197 .1262

B. Challenges Brought by Nevada and Environmental Petitioners.1264

1. Jurisdiction.1264

2. The 10,000-Year Compliance Period.1266

3. The Controlled Area.1273

4. The Definition of “Disposal”.1277

C. NEI’s Challenge to the Ground-Water Standard .1278

1. Standing .1278

2. Alleged Conflicts with the Energy Policy Act.1280

3. Arbitrary and Capricious Challenge.1283

III. The NRC Cases. to OO

A. Jurisdiction and Timeliness. to OO

B. Nevada’s Merits Claims. t>o CO

1.Primary Barrier and Multiple Barriers Claims to OO

*1257 a. The Primary Barrier Claim.1289

b. The Multiple Barriers Claims.1294

2. Compliance with EPA’s Part 197 in Construction Authorization.1297

3. 10,000-Year Compliance Period.1298

4. Reviewability of DOE’s Peak Dose Calculations.1299

5. NRC’s “Reasonable Expectation” Standard.1300

1301 IV. The Site-Designation Cases.

1302 A. The Constitutional Case.

1302 1. Issue Preclusion.

1303 2. Merits of the Constitutional Challenge

1309 B. The DOE Case.

1. DOE Criteria, Secretary’s Alleged Failure To Take Mandatory Actions, and Site Recommendations. 05 O CO i — I

2. The Final Environmental Impact Statement. (N rH CO rH

V. Conclusion. .1315

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

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

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

*1258 I. BackgrouND

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

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

Radioactive waste and its harmful consequences persist for time spans seemingly beyond human comprehension. For example, iodine-129, one of the radionuclides expected to be buried at Yucca Mountain, has a half-life of seventeen million years. See Comm, on TechniCal Bases por YuCoa Mountain StaNdaeds, Nat’l Reseaeoh COUNCIL, TECHNICAL BASES FOR YUCCA MOUNTAIN Standards 18-19 (1995) [hereinafter “NAS Report”]. Neptunium-237, also expected to be deposited in Yucca Mountain, has a half-life of over two million years. Id. at 19.

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

In 1982, responding to growing quantities of radioactive waste and their potentially deadly health risks, Congress enacted the Nuclear Waste Policy Act (NWPA), directing the federal government to assume responsibility for permanently disposing of the nation’s nuclear waste. Pub. L. No. 97-425, 96 Stat. 2201 (1982) (codified as amended at 42 U.S.C. §§ 10101-10270 (2000)). The NWPA put the United States on course to using geologic reposi *1259 tories buried deep below the earth’s surface to house its nuclear waste. To finance the creation and operation of such repositories, the NWPA established the Nuclear Waste Fund to ensure that “the costs of carrying out activities relating to the disposal of [radioactive] waste and spent fuel will be borne by the persons responsible for generating such waste and spent fuel.” 42 U.S.C. § 10131(b)(4) (2000). Accordingly, the NWPA required nuclear energy producers to pay assessments into the Fund based on the amount of electricity they generate. See id. § 10222(a), (c) (2000).

The NWPA assigned distinct regulatory roles to the Department of Energy, the Environmental Protection Agency, and the Nuclear Regulatory Commission. Congress charged DOE with selecting, designing, and ultimately operating the repository. See id. §§ 10132-10134 (2000). It required EPA to establish generally applicable standards for protecting the environment from releases of radioactive materials, id. § 10141(a) (2000), and directed NRC to assume responsibility for licensing a DOE-proposed repository, id. § 10141(b).

The NWPA also established a multistage process for DOE to select an appropriate host site. The Act required the Secretary of Energy to begin by issuing general site-selection guidelines, id. § 10132(a), that DOE would then use to determine which candidate sites to recommend for intensive investigation, known as “site characterization,” id. § 10132(b). Based on these guidelines, the Secretary was directed to nominate at least five sites, id. § 10132(b)(1)(A), and then to narrow the field to three for the President’s consideration, id. § 10132(b)(1)(B).

Once the President approved the nominated sites, the Secretary was required to undertake site-characterization activities at each location. NWPA § 113(a) (codified as amended at 42 U.S.C. § 10133(a)). The NWPA also directed DOE, as part of its site-characterization program, to issue “criteria” for determining whether the candidate sites were “suitable]” for housing a waste repository. 42 U.S.C. § 10133(b)(l)(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) (codified as amended at 42 U.S.C. § 10134(a)(1)).

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

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

In 1985, EPA promulgated 40 C.F.R. part 191, general health and safety standards to govern an eventual waste repository. EPA later revised these standards in response to a First Circuit decision *1260 remanding aspects of the regulation. See Natural Res. Def. Council, Inc. v. United States EPA, 824 F.2d 1258 (1st Cir.1987) (.NRDC v. EPA). NRC then issued generic licensing standards in 10 C.F.R. part 60.

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

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

Acting pursuant to EnPA, both EPA and NRC promulgated standards to govern the Yucca Mountain repository. EPA issued- 40 C.F.R. part 197, establishing health and safety standards that require DOE to limit radiation releases from the repository for 10,000 years. See Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 66 Fed. Reg. 32,074 (June 13, 2001) (codified at 40 C.F.R. pt. 197 (2003)). 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 *1261 repository. Id. at 6. Pursuant to NWPA procedures, the President then recommended Yucca to Congress. Objecting, Nevada submitted a notice of disapproval, to which Congress responded by passing a joint resolution approving the development of a repository at Yucca Mountain. See Pub. L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. § 10135 note (Supp. IV 2004)).

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

To isolate this waste for the epochal years required - by comparison, human history has been recorded for only 5000 years, see id. at 32,099 - the disposal system’s overall design contemplates two types of barriers. First, “engineered” barriers, which include waste packages consisting of metal cylinders protected by drip shields, will surround the waste and protect it from water infiltration. See Office of Civilian Radioactive Waste Management, Yucca Mountain Project, Repository Concept: Engineered Barriers, at http://www.oerwm.doe.gov/ymp/abouVebar-riers.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/abouVtunnels.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/fact sheets/doeymp0203.shtml (last visited June 1, 2004). DOE plans to construct the .repository tunnels in a thick layer of rock 1000 feet below the surface and 1000 feet above the water table. See id. The Energy Department expects that this surrounding rock will both limit water from seeping into the waste packages and delay radioactive particles from migrating into the human environment. See id.; 66 Fed. Reg. at 32,087. Decades or even centuries after beginning to bury waste at Yucca Mountain, DOE will permanently close the repository by sealing off all openings to the surface. See Secretary’s Recommendation at 7.

Before us now are challenges to four aspects of the statutory and regulatory regime governing the Yucca Mountain repository. First,, the State of Nevada and various environmental groups (Natural Resources Defense Council, Inc., Public Citizen, Citizen Alert, Nevada Nuclear Waste Task Force, Nevada Desert Experience, Citizen Action Coalition of Indiana, and the Nuclear Information and Resource Service) challenge EPA’s radiation-protection regulation as insufficiently protective of public health and safety. The Nuclear Energy Institute, Inc. (NEI), a trade asso *1262 ciation representing the nuclear energy industry, challenges EPA’s ground-water standard, claiming it to be both unnecessary and unlawful. Second, Nevada, Clark County, and the City of Las Vegas attack NRC’s licensing-criteria rule as arbitrary, capricious, and contrary to law. Third, Nevada, Clark County, and the City of Las Vegas challenge the constitutionality of the congressional resolution selecting the Yucca Mountain site, arguing that Congress impermissibly singled out the State to bear the unique burden of housing the nation’s nuclear waste. Fourth, Nevada, Clark County, and the City of Las Vegas attack DOE’s part 963 site-suitability criteria, the Energy Secretary’s and President’s decisions to recommend Yucca Mountain for development as the nation’s waste repository, and the Energy Department’s Final Environmental Impact Statement. We consider each challenge in turn.

II. The EPA Cases

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

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

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

EnPA § 801(a)(1).

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

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

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

40 C.F.R. § 197.20 (2003). This “reasonably maximally exposed individual” (RMEI) represents a theoretical person living in the “accessible environment,” id. § 197.21 (2003), ie., any point outside the “controlled area,” an area no greater than 300 square kilometers around the repository, id. § 197.12 (2003). The RMEI is designed to have lifestyle characteristics *1263 (such as water and food consumption habits) that would expose him or her to “reasonably maximal” exposure levels. See 66 Fed.Reg. at 32,092. The 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 exposure dose by assigning weighting factors to account for organs’ relative sensitivities to radiation. See 40 C.F.R. § 197.2 (2003) (defining “effective dose equivalent” as “the sum of the products of the dose equivalent received by specified [human body] tissues following an exposure of, or an intake of radionuclides into, specified tissues of the body, multiplied by appropriate weighting factors”).

The rule’s second standard, the “human-intrusion standard,” requires DOE to show, among other things, a reasonable expectation that the RMEI will receive no more than a specified dose of radiation even if humans drill, intentionally or otherwise, into a waste package during the 10,-000-year period immediately following disposal. Id. § 197.25(a) (2003).

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

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

Id. § 197.30 (2003). Table 1, in turn, specifies maximum permitted contamination levels for three different types of radionu-clides, which correspond to the maximum contaminant levels (MCLs) that EPA established under the Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f to 300j-26 (2000). See 66 Fed. Reg. at 32,106. For example, DOE must demonstrate that “[cjombined beta and photon emitting ra-dionuclides” 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; Ra-dionuclides; Notice of Data Availability, 65 Fed. Reg. 21,576, 21,603 (Apr. 21, 2000); National Primary Drinking Water Regulations; Radionuclides,.65 Fed. Reg. 76,708, 76,716 (Dec. 7, 2000); United States Environmental Protection Agency, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, Nevada (40 CFR Part 197) - Final Rule, Response to Comments Document 6-21 (June 2001) [hereinafter “Response to Comments”]. The “representative volume” referred to in the ground-water standard must include the highest concentration of radiation in the “plume of contamination” outside the controlled area. 40 C.F.R. § 197.31(a)(1) (2003).

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 (2003). To account for changing conditions during the 10,000 years following disposal, EPA requires DOE to “vary factors related to geology, hydrology, and climate based upon cautious, but reasonable assumptions.” Id. § 197.15 (2003). In contrast, the Energy Depart *1264 ment must hold constant “changes in society, the biosphere (other than climate), human biology, or increases or decreases in human knowledge or technology.” Id.

As to the period beyond the first 10,000 years, the rule requires DOE to calculate the maximum radiation exposures the RMEI will incur and then include the results of this calculation in its environmental impact statement as an indicator of long-term disposal system performance. Id. § 197.35 (2003). “No regulatory standard,” however, “applies to the results of this analysis.” Id. .

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

B. Challenges Brought by Nevada and Environmental Petitioners

1. Jurisdiction

Before addressing the merits of Nevada’s petition, we must consider two jurisdictional issues. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 101-02, 118 S.Ct. 1003, 1012-13, 1016, 140 L.Ed.2d 210 (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 reviewable by section 2239 of title 42.” Id. § 2342(4). In turn, section 2239 makes reviewable “[a]ny final order [of the Atomic Energy Commission],” 42 U.S.C. § 2239(b) (2000), that is entered in “any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees,” id. § 2239(a)(1)(A). The AEC’s authority to establish environmental standards to protect the public from radiation exposure, however, has since been transferred to EPA, and the AEC has been abolished. See Reorganization Plan No. 3 of 1970, § 2(a)(6), reprinted in 5 U.S.C. App. 1 (2000) (transferring to the EPA Administrator the “functions of the Atomic Energy Commission ... administered through its Division of Radiation Protection Standards, to the extent that such functions of the Commission consist of establishing generally applicable environmental standards for the protection of the general environment from radioactive material”); 42 U.S.C. § 5814(a) (2000) (abolishing the AEC). Given this transfer of authority, at least three circuits have *1265 held that EPA action undertaken pursuant to EPA’s AEC-transferred authority is reviewable under the Hobbs Act as if undertaken by the AEC itself. See Watkins, 939 F.2d at 712 n. 4 (stating that EPA’s generic health and safety standards for nuclear waste repositories are reviewable under 42 U.S.C. § 2239(b)); NRDC v. EPA, 824 F.2d at 1267 n. 7 (same); Quivira Mining Co. v. United States EPA, 728 F.2d 477, 481-84 (10th Cir.1984) (finding Hobbs Act jurisdiction over EPA regulations addressing radiation releases from uranium fuel cycle operations). Going one step further, this circuit has held that agency action that “derives” from transferred authority is also reviewable under the Hobbs Act. See Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156, 164-65 (D.C.Cir.1997) (holding that the court had Hobbs Act jurisdiction to review Transportation Department rules addressing certain safety requirements because the agency’s power to issue those requirements “derive[d] in part” from its transferred authority and because actions taken pursuant to that transferred authority were subject to Hobbs Act review). This is just such a case.

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

The second jurisdictional issue concerns EPA’s claim that neither Nevada’s nor the environmental petitioners’ constitutional standing is “self-evident.” Respondent’s Br. at 21. To establish Article III standing to sue on behalf of their members, NRDC and the other environmental petitioners must show that “(a) [their] members would otherwise have standing to sue in their oym right; (b) the interests [they] seek[ ] to protect are germane to [their] purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (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, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (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, 112 S.Ct. at 2136.

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 *1266 and Resource Service. See Decl. of Ed Goedhart ¶ 1. Goedhart states that he lives and works in Amargosa Valley, Nevada, eighteen miles from Yucca Mountain. Id. ¶ 2. He alleges that EPA’s failure to adopt more stringent radiation-protection standards will permit hazardous radionu-clides from the buried waste to contaminate his community’s ground-water supplies, causing adverse health effects. See id. ¶¶ 2-7.

These allegations are more than sufficient to give Goedhart standing to sue in his own right. The claimed injury to his ground-water supply is neither hypothetical nor conjectural. Indeed, EPA itself acknowledges that “[t]he boundaries of the town [of Amargosa Valley] include all of the area where the highest potential doses from a repository at Yucca Mountain are anticipated.... ” Final Background Information Document at 8-13. Although ra-dionuclides escaping from the Yucca repository may not reach Goedhart’s community for thousands of years, his injury is “actual or imminent,” for he lives adjacent to the land where the Government plans to bury 70,000 metric tons of radioactive waste - a sufficient harm in and of itself. See La. Envtl. Action Network v. United States EPA, 172 F.3d 65, 67-68 (D.C.Cir.1999) (holding that an environmental group established constitutional standing where its members lived near a landfill into which an EPA regulation allegedly would permit certain hazardous wastes to be deposited). In addition, this harm is “fairly traceable,” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (internal quotation marks omitted), to EPA’s allegedly lax radiation-protection standards, and favorable relief, i.e., requiring EPA to make more stringent each aspect of the rule that petitioners challenge, would likely redress his harm.

Nor have we any doubt that Goedhart has prudential standing. To establish prudential standing, a party’s “grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (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, ie., without endangering the lives or health of the surrounding population. See EnPA § 801(a)(1) (directing EPA to promulgate “public health and safety standards for protection of the public from releases from radioactive materials”).

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

2. The 10,000-Year Compliance Period

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

*1267 Section 801(a) of the Energy Policy Act requires EPA to promulgate public health and safety standards for Yucca Mountain “based upon and consistent with the findings and recommendations of the National Academy of Sciences.” Chartered by Congress during the Civil War, the National Academy of Sciences (NAS or Academy) serves as the federal government’s scientific adviser, convening distinguished scholars to address scientific and technical issues confronting society. See NAS RepoRt at vi. EnPA directs EPA to contract with NAS to conduct a study to provide “findings and recommendations on reasonable standards for protection of the public health and safety” from the potential hazards posed by a Yucca Mountain repository. EnPA § 801(a)(2). To undertake the necessary study, NAS convened a committee organized under the auspices of its principal operating arm, the' National Research Council. NAS RepoRt at vi-vii. That committee retained two consultants, conducted five open meetings to which it invited over fifty scientists and engineers, and reviewed publicly available research compiled by federal, state, and local agencies, among others. Id. at vii-viii.

The Academy’s work culminated in a 1995 report entitled “Technical Bases for Yucca Mountain Standards.” With respect to the length of the compliance period, NAS found “no scientific basis for limiting the time period of the 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 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.” 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