PRESS RELEASE
For Immediate Release: Contact: Joseph Malherek, PC (202) 454-5109
Aug. 24, 2004 Paul Gunter, NIRS (202) 328-0002
Government Bows to Nuclear Industry Pressure by Gutting
Its Environmental Justice Policy
WASHINGTON, D.C. – Ignoring the expressed concerns of citizens’ groups, including Public Citizen and the Washington, D.C.-based Nuclear Information and Resource Service (NIRS), the U.S. Nuclear Regulatory Commission (NRC) today published in the Federal Register its final policy statement on the issue of “environmental justice” (EJ), the phenomenon of disproportionate adverse environmental impacts of federal projects on minority and/or low-income populations. The agency should have endeavored to carry out the just and progressive executive order (EO) issued by President Bill Clinton in 1994 calling on agencies to incorporate EJ programs into their respective missions, which then-NRC Chairman Ivan Selin pledged to do. Instead, the NRC has bowed to industry pressure to inexorably weaken its ability to ensure that its licensing actions are fair, just and free of economic and racial discrimination, NIRS and Public Citizen said today.
“While the policy statement on the treatment of environmental justice matters in NRC licensing, rulemaking and regulatory actions purports to be a reaffirmation of the NRC’s commitment to the consideration of environmental justice issues, the new policy is disingenuous and retreats from the basic principles of environmental justice as established in the initial executive order,” said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program.
Today’s NRC policy statement asserts that the executive order “does not establish new substantive or procedural requirements applicable to NRC regulatory or licensing activities.” The result is that the NRC likely will refuse to consider legal challenges regarding issues of racial discrimination, fairness and economic equity in its licensing hearings. In a current proceeding involving a proposed uranium enrichment plant, the NRC commissioners already ordered that only themselves – not the licensing board overseeing the hearing – would determine whether environmental justice issues would be heard.
The new policy appears to be a nod to the Nuclear Energy Institute (NEI), the lobbying arm of the nuclear industry that submitted a letter to the NRC in December 2002 sharply criticizing the agency for its handling of EJ issues in licensing hearings. Those hearings involve Louisiana Energy Services, which is seeking a license for a uranium enrichment facility in New Mexico, and Private Fuel Storage, which is seeking a license for a high-level nuclear waste storage facility on the Indian reservation of the Goshute tribe in Skull Valley, Utah. Today’s statement appropriates many of the arguments and incorporates some of the recommendations articulated by the NEI in its letter. Moreover, the NEI has the broad interest of securing a license for the U.S. Department of Energy’s Yucca Mountain nuclear waste repository, which may also face contentions related to EJ. (The state of Nevada submitted comments urging the NRC to retract its EJ policy statement.)
“The NRC is abandoning environmental justice for Jim Crow regulation,” said Michael Mariotte, executive director of NIRS. “The federal agency might as well hang a ‘Nuclear Industry Only’ sign on the hearing room door.”
As three large electric utilities seek Early Site Permits for the construction of new nuclear reactors and two energy industry consortiums seek licenses for controversial nuclear facilities, there is a manifest industry interest to clear the path for the licensing of these projects. Already, an NRC judicial board has dismissed an EJ contention brought to a licensing hearing for a new nuclear reactor at the Grand Gulf site in Port Gibson, Miss. The draft version of the EJ policy was cited by the board in dismissing charges that the proposed reactor would have disproportionate and adverse impacts on the surrounding area’s predominately African-American population. Grand Gulf is in Claiborne County, Miss., which is 84 percent African-American with 32 percent living at or below the poverty line. Despite the racial and economic makeup of the county, the board was not willing even to consider that reactor operations, nor inadequately funded emergency plans, might cause a disproportionate impact – even though the electricity from the plant is not intended for the region.
“The situation in Claiborne County demonstrates the need for a strong, enforceable policy on environmental justice, but the NRC is instead eviscerating its policy,” Mariotte said. “It is unfortunate that the NRC appears so willing to violate its regulatory duty by reneging on the directives of the EO, when the only beneficiary of this action is the industry it regulates.”
According to the NRC, more than 700 people submitted postcard comments opposing the changes to the NRC’s policy.
To read the Federal Register notice regarding the NRC’s EJ policy, go to:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_register&docid=fr24au04-96
To read Public Citizen’s initial comments on the NRC’s draft EJ policy statement, go to:
http://www.citizen.org/cmep/ejcomments/
To read NIRS’ comments on the draft policy, go to:
http://www.nirs.org/CommentsonEJPolicy2-3-04.htm
###
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For address changes or to unsubscribe, just send an e-mail to nirsnet@nirs.org. If you have friends or colleagues who would like to be on this list, have them send a note to nirsnet@nirs.org
Thank you! Michael Mariotte, Nuclear Information and Resource Service
[http://www.veteransunitedforkerry.com]
[http://www.vaiw.org]
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9 Public Citizen: Government Bows to Nuclear Industry Pressure by
Gutting Its Environmental Justice Policy
Aug. 24, 2004
WASHINGTON, D.C. Ignoring the expressed concerns of citizens
groups, including Public Citizen and the Washington, D.C.-based
Nuclear Information and Resource Service (
[http://www.nirs.org/] ), the U.S. Nuclear Regulatory Commission
( [http://www.nrc.gov/] ) today published in the Federal
Register its final policy statement on the issue of
environmental justice (EJ), the phenomenon of disproportionate
adverse environmental impacts of federal projects on minority
and/or low-income populations. The agency should have endeavored
to carry out the just and progressive executive order (EO)
issued by President Bill Clinton in 1994 calling on agencies to
incorporate EJ programs into their respective missions, which
then-NRC Chairman Ivan Selin pledged to do. Instead, the NRC has
bowed to industry pressure to inexorably weaken its ability to
ensure that its licensing actions are fair, just and free of
economic and racial discrimination, NIRS and Public Citizen said
today.
While the policy statement on the treatment of environmental
justice matters in NRC licensing, rulemaking and regulatory
actions purports to be a reaffirmation of the NRCs commitment
to the consideration of environmental justice issues, the new
policy is disingenuous and retreats from the basic principles of
environmental justice as established in the initial executive
order, said Wenonah Hauter, director of Public Citizens
[http://www.citizen.org/cmep/] .
Todays NRC policy statement asserts that the executive order
does not establish new substantive or procedural requirements
applicable to NRC regulatory or licensing activities. The
result is that the NRC likely will refuse to consider legal
challenges regarding issues of racial discrimination, fairness
and economic equity in its licensing hearings. In a current
proceeding involving a proposed uranium enrichment plant, the
NRC commissioners already ordered that only themselves not the
licensing board overseeing the hearing would determine whether
environmental justice issues would be heard.
The new policy appears to be a nod to the Nuclear Energy
Institute ( [http://www.nei.org/] ), which is the lobbying arm
of the nuclear industry and which submitted a letter to the NRC
in December 2002 sharply criticizing the agency for its handling
of EJ issues in licensing hearings. Those hearings involve
[http://www.citizen.org/cmep/energy_enviro_nuclear/nuclear_power_
plants/uranium/articles.cfm?ID=11821] , which is seeking a
license for a uranium enrichment facility in New Mexico, and
[http://www.citizen.org/cmep/energy_enviro_nuclear/nuclear_waste/
hi-level/fuel/articles.cfm?ID=10370] , which is seeking a
license for a high-level nuclear waste storage facility on the
Indian reservation of the Goshute tribe in Skull Valley,
Utah.Todays statement appropriates many of the arguments and
incorporates some of the recommendations articulated by the NEI
in its letter. Moreover, the NEI has the broad interest of
securing a license for the U.S. Department of Energys
[http://www.citizen.org/cmep/energy_enviro_nuclear/nuclear_waste/
hi-level/yucca/] , which may also face contentions related to
EJ. (The state of Nevada submitted comments urging the NRC to
retract its EJ policy statement.)
The NRC is abandoning environmental justice for Jim Crow
regulation, said Michael Mariotte, executive director of NIRS.
The federal agency might as well hang a Nuclear Industry Only
sign on the hearing room door.
As three large electric utilities seek Early Site Permits for
the construction of new nuclear reactors and two energy industry
consortiums seek licenses for controversial nuclear facilities,
there is a manifest industry interest to clear the path for the
licensing of these projects. Already, an NRC judicial board has
dismissed an EJ contention brought to a licensing hearing for a
new nuclear reactor at the
[http://www.citizen.org/cmep/energy_enviro_nuclear/nuclear_power_
plants/nuclear_revival/esp/grandgulf/] in Port Gibson, Miss.
The draft version of the EJ policy was cited by the board in
dismissing charges that the proposed reactor would have
disproportionate and adverse impacts on the surrounding areas
predominately African-American population. Grand Gulf is in
Claiborne County, Miss., which is 84 percent African-American
with 32 percent living at or below the poverty line. Despite
the racial and economic makeup of the county, the board was not
willing even to consider that reactor operations, nor
inadequately funded emergency plans, might cause a
disproportionate impact even though the electricity from the
plant is not intended for the region.
The situation in Claiborne County demonstrates the need for a
strong, enforceable policy on environmental justice, but the NRC
is instead eviscerating its policy, Mariotte said. It is
unfortunate that the NRC appears so willing to violate its
regulatory duty by reneging on the directives of the EO, when
the only beneficiary of this action is the industry it
regulates.
According to the NRC, more than 700 people submitted postcard
comments opposing the changes to the NRCs policy.
To read the Federal Register notice regarding the NRCs EJ
policy,
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_r
egister&docid=fr24au04-96] .
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_r
egister&docid=fr24au04-96]
To read Public Citizens initial comments on the NRCs draft EJ
policy statement, [http://www.citizen.org/cmep/ejcomments/] .
To read NIRS comments on the draft policy,
[http://www.nirs.org/CommentsonEJPolicy2-3-04.htm] .
*****************************************************************
10 NRC: NRC Issues Policy Statement on Environmental Justice
News Release - 2004-09 U.S. NUCLEAR REGULATORY COMMISSION Office
of Public Affairs Telephone: 301/415-8200 Washington, DC
20555-0001 E-mail: opa@nrc.gov No. 04-098 August 23, 2004
environmental justice matters in agency regulatory and licensing
actions.
In the policy statement the NRC recognizes that the impact of
the agencys regulatory or licensing actions on certain
populations may be different from those on the general
population due to a communitys distinct cultural
characteristics. The policy statement reflects the view that the
disproportionately high and adverse impacts of a proposed action
that fall heavily on a particular community call for close
scrutiny under the National Environmental Policy Act (NEPA).
In February 1994, President Clinton issued to all Federal
agencies Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, which directed them to make achieving
environmental justice part of their mission by identifying and
addressing disproportionately high and adverse human health or
environmental effects of their programs, policies and activities
on minority and low-income populations.
Although independent agencies, such as the NRC, were only
requested to comply with this Executive Order, the agency in a
letter to President Clinton indicated that it would endeavor to
carry out the measures set forth in the Order as part of its
efforts to comply with NEPA.
A draft policy statement on this subject was issued for public
comment on November 5, 2003. No substantive changes were made as
a result of the comments received. A copy of the final statement
will be published in the Federal Register shortly.
Last revised Tuesday, August 24, 2004
*****************************************************************
11 NRC: Policy Statement on the Treatment of Environmental Justice
FR Doc 04-19305
[Federal Register: August 24, 2004 (Volume 69, Number 163)]
[Notices] [Page 52040-52048] From the Federal Register Online via
GPO Access [wais.access.gpo.gov] [DOCID:fr24au04-96]
Matters in NRC Regulatory and Licensing Actions AGENCY: Nuclear
Regulatory Commission.
ACTION: Final policy statement.
SUMMARY: On November 5, 2003 (68 FR 62642), the Commission
issued, for public comment, a draft policy statement on the
treatment of environmental justice (EJ) matters in Nuclear
Regulatory Commission (NRC) regulatory and licensing actions.
This final policy statement reaffirms that the Commission is
committed to full compliance with the requirements of the
National Environmental Policy Act (NEPA) in all of its regulatory
and licensing actions. The Commission recognizes that the
impacts, for NEPA purposes, of its regulatory or licensing
actions on certain populations may be different from impacts on
the general population due to a community's distinct cultural
characteristics or practices. Disproportionately high and adverse
impacts of a proposed action that fall heavily on a particular
community call for close scrutiny--a hard look--under NEPA. While
Executive Order (E.O.) 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' characterizes these impacts as involving an
``environmental justice'' matter, the NRC believes that an
analysis of disproportionately high and adverse impacts needs to
be done as part of the agency's NEPA obligations to accurately
identify and disclose all significant environmental impacts
associated with a proposed action. Consequently, while the NRC is
committed to the general goals of E.O. 12898, it will strive to
meet those goals through its normal and traditional NEPA review
process. This final policy statement reflects the pertinent
comments received on the published draft policy statement.
DATES: Effective August 24, 2004.
FOR FURTHER INFORMATION CONTACT: Brooke G. Smith, Office of
General Counsel, Mail Stop O-15D21, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001; telephone: (301) 415-2490;
fax number: (301) 415-2036; e-mail: bgs@nrc.gov [bgs@nrc.gov] .
SUPPLEMENTARY INFORMATION: I. Background. II. Summary of Public
Comments and Responses to Comments. (A) General Comments (B)
Creation of New or Substantive Rights (C) NEPA as a Basis for
Considering Environmental Justice- Related Matters (D) Racial
Motivation (E) Environmental Assessments (F) Generic/Programmatic
EISs (G) Numeric Criteria (H) Scoping/Public Participation III.
Final Policy Statement. IV. Guidelines for Implementation of NEPA
as to Environmental Justice Issues.
I. Background In February 1994, President Clinton issued E.O.
12898, ``Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,'' which directed
each Federal agency to ``* * * make achieving environmental
justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities
on minority populations and low-income populations. * * *''
Executive Order No. 12898 (Section 1-101), 59 FR 7629 (February
16, 1994). Although
[[Page 52041]] independent agencies, such as the NRC, were only
requested, rather than directed, to comply with the E.O., NRC
Chairman Ivan Selin, in a letter to President Clinton, indicated
that the NRC would endeavor to carry out the measures set forth
in the E.O. and the accompanying memorandum as part of the NRC's
efforts to comply with the requirements of NEPA. See Letter to
President from Ivan Selin, March 31, 1994.
Following publication of the Council on Environmental Quality's
(CEQ's) guidelines \1\ in December 1997 on how to incorporate
environmental justice in the NEPA review process, the NRC staff
in the Office of Nuclear Material Safety and Safeguards (NMSS)
and the Office of Nuclear Reactor Regulation (NRR) each developed
their own environmental justice guidance with the CEQ guidance as
the model. See NUREG-1748, ``Environmental Review Guidance for
Licensing Actions Associated with NMSS Programs'' (August 22,
2003) (ADAMS Accession No.
ML032450279); NRR Office Instruction, LIC-203, Rev. 1,
``Procedural Guidance for Preparing Environmental Assessments and
Considering Environmental Issues'' (May 24, 2004) (ADAMS
Accession No. ML033550003).
-----------------------------------------------------------------
---------- \1\ ``Environmental Justice, Guidance Under the
National Environmental Policy Act,'' Council on Environmental
Quality (Dec. 10, 1997). The NRC provided comments on the CEQ's
draft and revised draft versions of this document to both CEQ and
the Office of Management and Budget. Letter to Mr. Bradley M.
Campbell, Associate Director for Toxics and Environmental
Quality, Council on Environmental Quality from Hugh L. Thompson,
Jr., Deputy Executive Director for Regulatory Programs, U.S. NRC,
April 25, 1997; letter to Mr. Zach Church, Office of Management
and Budget, from Hugh L. Thompson, Jr., Deputy Executive Director
for Nuclear Materials Safety, Safeguards, and Operations Support,
May 10, 1996.
-----------------------------------------------------------------
---------- In 1998, the Commission, for the first time in an
adjudicatory licensing proceeding, analyzed the E.O. in Louisiana
Energy Services (LES). See Louisiana Energy Services (Claiborne
Enrichment Center), CLI-98-3, 47 NRC 77 (1998). In LES, the
applicant was seeking an NRC license to construct and operate a
privately owned uranium enrichment facility on 70 acres between
two African American communities, Center Springs and Forest
Grove. See id. at 83. One of the impacts of constructing and
operating the facility entailed closing and relocating a parish
road bisecting the proposed enrichment facility site.
See id. The intervenor's contention alleged that the discussion
of impacts in the applicant's environmental report was inadequate
because it failed to fully assess the disproportionate
socioeconomic impacts of the proposal on the adjacent African
American communities. See id. at 86.
In LES, the Commission held that ``[d]isparate impact analysis is
our principal tool for advancing environmental justice under
NEPA. The NRC's goal is to identify and adequately weigh, or
mitigate, effects on low-income and minority communities that
become apparent only by considering factors peculiar to those
communities.'' Id. at 100. The Commission emphasized that the
E.O. did not establish any new rights or remedies; instead, the
Commission based its decision on NEPA, stating that ``[t]he only
``existing law'' conceivably pertinent here is NEPA, a statute
that centers on environmental impacts.'' Id. at 102. This view
was reiterated by the Commission in Private Fuel Storage (PFS).
See PFS (Independent Spent Fuel Storage Installation), CLI-02-
20, 56 NRC 147, 153-55 (2002); see also PFS, CLI-04-09, 59 NRC
120 (2004). In PFS, the Commission stated that environmental
justice, as applied at the NRC, ``means that the agency will make
an effort under NEPA to become aware of the demographic and
economic circumstances of local communities where nuclear
facilities are to be sited, and take care to mitigate or avoid
special impacts attributable to the special character of the
community.'' Id. at 156. The purpose of this policy statement is
to present a comprehensive statement of the Commission's policy
on the treatment of environmental justice matters in NRC
regulatory and licensing actions. The policy statement
incorporates past Commission decisions in LES and PFS, staff
environmental guidance, as well as Federal case law on
environmental justice. The proposed policy statement, ``Policy
Statement on the Treatment of Environmental Justice Matters in
NRC Regulatory and Licensing Actions,'' was published in the
Federal Register on November 5, 2003 (68 FR 62642). After an
extension, the public comment period expired on February 5, 2004.
This final policy statement reflects the pertinent comments
received on the published draft policy statement.
II. Summary of Public Comments and Responses to Comments
Twenty-nine organizations and individuals submitted written
comments on the draft policy statement. The commenters
represented a variety of interests. Comments were received from
individuals, Federal and State agencies, and citizen,
environmental, and industry groups. The comments addressed a wide
range of issues concerning the treatment of environmental justice
matters in the Commission's regulatory and licensing actions. The
Commission also received approximately 700 postcards expressing
general opposition to the policy statement.
The following sections A through H represent major subject areas
and describe the principal public comments received on the draft
policy statement (organized according to the major subject areas)
and present NRC responses to those comments.
(A) General Comments (B) Creation of New or Substantive Rights
(C) NEPA as a Basis for Considering Environmental Justice-Related
Matters (D) Racial Motivation (E) Environmental Assessments (F)
Generic/Programmatic EISs (G) Numeric Criteria (H) Scoping/Public
Participation A. General Comments A.1 Comment: Some commenters
suggested that the policy statement include a detailed
explanation of how the new policy on environment justice differs
from the current staff EJ guidance and NRC practice.
Specifically, one commenter stated that the NRC should make
explicit how the new policy would change its treatment of
EJ-related issues. Another commenter suggested that the statement
provide examples detailing how NEPA would be implemented and
interpreted under the new policy statement.
Another commenter recommended that the NRC develop a
comprehensive statement that includes an analysis of the impacts
and effects of the proposed action on low-income and minority
populations by building on the past ten years of EJ policy
development and guidance.
Another commenter recommended that the NRC review staff guidance
documents prepared by the NRC and other Federal agencies on
implementing the E.O. and evaluate how well the guidance was
carried out and how effective the guidance has been. After
identifying the effective portions, the comment stated that the
NRC should revise and assemble the guidance into a single,
integrated policy that, at a minimum, contains language from
CEQ's ``Environmental Justice: Guidance Under the National
Environmental Policy Act.'' Response: This policy statement is
intended to be a Commission- approved general clarification of
the Commission's position on the treatment of environmental
justice issues in NRC regulatory and licensing actions. This
statement reaffirms the Commission's
[[Page 52042]] commitment to pursue and address environmental
justice policy goals through the NEPA process by (1)
Consolidating the Commission's views as set forth in the LES and
PFS decisions, (2) combining NRR and NMSS guidance to provide an
agency prospective, and (3) addressing current case law relevant
to environmental justice matters as litigated in the federal
court system. In preparing the policy statement, the Commission
also consulted guidance from other Federal agencies and CEQ,
regarding the treatment of environmental justice.
This policy statement does not change how the agency will
implement or interpret NEPA, except to clarify certain procedures
that correctly identify and adequately weigh significant adverse
environmental impacts on low-income and minority populations by
assessing impacts peculiar to those communities. At bottom, this
policy statement does not represent a change in the overall
practice of the Commission with regard to EJ- related matters but
a clarification that the NRC will address EJ matters in its
normal NEPA approach.
A.2 Comment: One commenter stated that the draft policy statement
narrows the scope of E.O. 12898 and NEPA with respect to
environmental justice issues. This commenter asserts that the
policy statement, which provides that ``* * * EJ issues are only
considered when and to the extent required by NEPA,'' limits
agency discretionary authority in considering EJ issues and,
thus, should be changed to conform to the E.O. urging that
agencies address environmental justice ``to the greatest extent
practicable and permitted by law * * *'' and to the CEQ Guidance.
Response: As an independent agency, the Commission is not
required to follow the E.O. or to adopt CEQ guidelines. The E.O.
itself states that it does not change an agency's obligations or
expand its authority. The Commission's intent in drafting an EJ
policy statement is simply to ensure that EJ is a part of the
normal and standard NEPA process in NRC regulatory and licensing
actions.
A.3 Comment: One commenter stated that the draft policy statement
disregards NRC staff guidance. Specifically, the commenter stated
that the policy overlooks NRR's guidance for ensuring that public
participation by affected minority and low-income communities is
encouraged. Also, the commenter stated that the policy statement
overlooks steps developed by NRC staff to ensure that an adequate
NEPA review of environmental impacts on minority communities has
been done.
Response: This policy statement does not disregard staff
guidance. Rather, it seeks to clarify the Commission's
environmental justice policy, by, among other things, combining
NRR and NMSS guidance to provide a consolidated agency view. NRR
and NMSS staff guidance relating to NEPA and, specifically,
environmental justice will continue to be used and will be
updated, if necessary, to reflect the direction of this final
policy statement. Matters not addressed in the policy statement
but discussed in the staff guidance will remain unchanged.
A.4 Comment: Some commenters urged that the draft statement be
rejected because it retreats from or undermines the goals and
intent of E.O. 12898. Other commenters stated that the policy
statement de- emphasizes EJ matters in NRC licensing proceedings.
Another similar letter commented that the NRC has declared E.O.
12898 to be irrelevant by limiting EJ matters to the NEPA
context. The commenter noted that it was the shortcomings and
ambiguity of NEPA that made the E.O. necessary in the first
place.
Response: The Commission is committed to the general goals set
forth in E.O. 12898, and strives to meet those goals as part of
its NEPA review process. While the policy statement clarifies
that EJ per se is not a litigable issue in our proceedings, it
does not de- emphasize the importance of adequately weighing or
mitigating the effects of a proposed action on low-income and
minority communities by assessing impacts peculiar to those
communities. Rather, the policy statement sets forth the criteria
for admissible contentions in this area within the NEPA context
and consistent with the Commission's regulations in 10 CFR Part
2.
A.5 Comment: Several commenters stated that the policy appears to
support the Nuclear Energy Institute's position on environmental
justice as submitted to the Commission in December 2002.
Response: While the Commission agreed with some aspects of NEI's
position as set forth in its December 2002 letter to the agency,
there were a number of positions that the Commission did not
agree with as reflected in this policy statement. This policy
statement reflects the position of the Commission after
considering all of the comments received in response to the draft
policy statement.
A.6 Comment: One commenter stated that it would be helpful to
understand the policy statement's impact on the Commission's
future decision whether to adopt the Department of Energy's
(DOE's) final environmental impact statement (EIS) on the
High-Level Waste Repository at Yucca Mountain.
Response: Given that the policy statement is not site-specific,
it is premature for the Commission to address the specific
comment on the Yucca Mountain High-Level Waste Repository. With
that said, the Nuclear Waste Policy Act of 1982 (NWPA) requires
the NRC to adopt, ``to the extent practicable,'' the final EIS
prepared by DOE in connection with the issuance of a construction
authorization and license for the Yucca Mountain High-Level Waste
Repository. See 42 U.S.C. 10134(f)(4). Commission regulations
that set forth the standards used to determine whether it is
practicable for the Commission to adopt the final EIS published
by DOE are at 10 CFR 51.109. These standards will not be impacted
by the publication of this policy statement.
A.7 Comment: Several commenters expressed concern that the policy
statement does not address mitigation of disproportionate
environmental impacts falling on low-income and minority
populations.
Response: Current NRR and NMSS staff guidance adequately
addresses the issue of mitigation, making clarification in the
policy statement unnecessary. For example, with regard to
environmental justice matters, Appendix C of NUREG-1748 states
that ``[i]f there are significant impacts to the minority or
low-income population, it is then necessary to look at mitigative
measures. The reviewer should determine and discuss if there are
any mitigative measures that could be taken to reduce the impact.
To the extent practicable, mitigation measures should reflect the
needs and preferences of the affected minority and low-income
populations.'' NUREG-1748, C-6, 7. A.8 Comment: Several comments
dealt with the cumulative impacts on certain populations and
regions. Specifically, in the context of the proposed Yucca
Mountain High-Level Waste Repository, it was stated that Nevada
has and continues to bear ``the burden of nuclear projects for
the nation.'' Response: The Commission considers cumulative
impacts when preparing an environmental impact statement for a
proposed action. With regard to environmental justice matters,
applicants are asked to provide NRC staff with a description of
cumulative impacts to low- income and minority populations and
socioeconomic resources, if applicable, in their environmental
report (ER) submitted
[[Page 52043]] with any license application. NUREG-1748, 6.4.11.
With regard to the proposed Yucca Mountain High-Level Waste
Repository, the NWPA requires the NRC to adopt, ``to the extent
practicable,'' the final EIS prepared by DOE in connection with
the issuance of a construction authorization and license for the
repository. See 42 U.S.C. 10134(f)(4). The NRC will follow the
NWPA direction.
A.9 Comment: One commenter suggested that where the NRC has never
analyzed EJ issues at a particular facility, the NRC should
supplement the previous EIS rather than preparing an EA or
relying on categorical exclusions.
Response: Pursuant to 10 CFR 51.92, the NRC staff will prepare a
supplement to an EIS where the proposed action has not been taken
if (1) There are substantial changes in the proposed action that
are relevant to environmental concerns or (2) there are
significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts. 10 CFR 51.92(a); see also 10 CFR 51.72(a). Additionally,
the staff may supplement an EIS when, in its opinion, preparation
of the supplement will further the purposes of NEPA. 10 CFR
51.92(b). The Commission will continue to implement these
provisions of its environmental protection regulations and will
address EJ matters consistent with the existing NEPA review
process and NRC's implementing regulations in Part 51.
A.10 Comment: One commenter recommended that in order to
``provide greater certainty and discipline in licensing
proceedings in which EJ [issues are] raised,'' the NRC should
establish, through adjudicatory proceedings or rulemaking,
binding guidance for the litigation of EJ issues. The commenter
also encouraged that the Commission either have prompt
interlocutory review of admitted EJ contentions or determine the
admissibility of proffered EJ contentions.
Response: The Commission in LES, CLI-98-3, 47 NRC 77 (1998), and
in PFS, CLI-02-20, 56 NRC 147, provided guidance on the
admissibility of EJ contentions under NEPA. Recently, in a Notice
of Hearing and Commission Order on a new LES application, the
Commission's guidance for this proceeding stated that the
Commission itself, rather than the Atomic Safety and Licensing
Board, ``will make the determination as to whether contentions
associated with environmental justice matters will be admitted in
[the] proceeding.'' Louisiana Energy Services, L.P. (National
Enrichment Facility), CLI-04-03, 59 NRC 10, 15 (2004).
Once the admissibility determination is made by the Commission,
it will provide the appropriate guidance on the litigation of
admissible EJ contentions, if any. Id. This policy statement will
serve as general guidance on EJ issues and the Commission will
determine whether there is a need for the Commission to provide
additional guidance on a case- by-case basis.
A.11 Comment: Several commenters recommended that the policy
statement include the four goals established in the E.O. and
found in the NRC's 1995 Environmental Justice Strategy (ADAMS
Accession No. ML003756575 (March 24, 1995)), and that the policy
statement indicate how the Commission will achieve those goals.
The goals are: (a) Integration of EJ into NRC's NEPA activities,
(b) continuing senior management involvement in EJ reviews, (c)
openness and clarity, and (d) seeking and welcoming public
participation.
Response: The policy statement, as well as NRR and NMSS staff
guidance, reflects the four environmental justice goals set out
above.
(a) Consistent with the goals set forth in the E.O. and in the
Commission's 1995 EJ Strategy, the NRC considers
disproportionately high and adverse impacts on low-income and
minority populations as part of its NEPA review.
(b) It is NRC's policy that senior managers review and concur on
every EIS prepared by the staff. See NUREG-1748, 4.5. Thus, there
is and will be continuing senior management involvement in NRC's
EJ reviews. In addition, changes or updates made to staff
environmental guidance are reviewed and concurred on by senior
agency officials.
(c) The NRC's NEPA process for preparation of an environmental
impact statement mandates openness and clarity and provides for,
among other things, public scoping meetings. The NRC usually
holds at least one public meeting in the vicinity of the proposed
action involving an EIS. The NRC also holds a poster session or
open house prior to the meeting to provide an opportunity for
one-on-one discussions with interested parties. Finally, the NRC
posts publically available information regarding proposed actions
on the agency Web site and in press releases, meeting notices,
Federal Register notices, and will mail certain documents, such
as the scoping summary report, to interested members of the
public.
(d) The scoping process identified in 10 CFR 51.29 and public
participation in commenting on the draft EIS are a fundamental
part of the NEPA process and are consistent with the E.O. and CEQ
guidelines. Both NMSS and NRR have issued guidance that provides
for public participation in identifying minority and low-income
populations through the EIS scoping process (i.e. interviews,
public comment, local meetings, and general outreach efforts).
The scoping meetings are announced in the Federal Register, on
the NRC Web site, in local or regional newspapers, posters around
the meeting location, and/or on local radio and television
stations at least one week before the public meeting. The NRC
requests the assistance of tribal, church, and community leaders
to disseminate the information to potentially affected groups.
Participants in the scoping process are provided an opportunity
to submit oral comments at the scoping meeting and written
comments through a project e-mail address or by regular mail.
A.12 Comment: One comment letter stated that the policy statement
should clearly articulate that it covers and will look at
potential impacts from all operations related to a proposed
action.
Specifically, the commenter stated that with regard to Nye
County, the location of the proposed high-level waste repository
at Yucca Mountain, an environmental analysis should include
transportation of spent nuclear fuel and high-level waste to the
proposed repository.
Response: The policy statement indicates that the EJ analysis
should be limited to the impacts associated with the proposed
action (i.e., the communities in the vicinity of the proposed
action). This policy statement does not address site-specific EJ
concerns. The NWPA requires the NRC to adopt, ``to the extent
practicable,'' the final EIS prepared by DOE in connection with
the issuance of a construction authorization and license for the
Yucca Mountain High-Level Waste Repository. See 42 U.S.C.
10134(f)(4). The NRC will follow the NWPA direction.
B. Creation of New or Substantive Rights B.1 Comment: One comment
asserted that the Commission's failure to conduct an EJ
evaluation in an EIS or noncompliance in any other way with the
E.O. as part of the Commission's NEPA responsibility would not be
grounds for the NRC to deny the proposed licensing action.
Response: It is the Commission's position that the E.O. itself
does not establish new substantive or procedural requirements
applicable to NRC regulatory or licensing activities. The E.O.
itself is very clear on this point. As
[[Page 52044]] a procedural statute, however, NEPA requires
Federal agencies to take a ``hard look'' at the environmental
impacts of major Federal actions significantly affecting the
quality of the human environment. Therefore, an EIS must
appropriately assess disproportionately high and adverse impacts
of a proposed action that fall heavily on a particular community.
B.2 Comment: While agreeing with the Commission that E.O. 12898
does not create any new rights or a private cause of action, one
commenter asserted that this was not relevant in the context of
the NRC's licensing proceedings because there is no requirement
that a contention or area of concern be grounded in a statutorily
created right. The commenter stated that neither the Atomic
Energy Act of 1954, as amended (AEA) nor the NRC regulations
mandate that the admission of contentions be based on a
particular statutorily created right or cause of action.
Response: The Commission's regulations setting forth the
standards for admissible contentions are found at 10 CFR 2.309.
This section provides that for each contention, the request for a
hearing or petition to intervene must, among other things, (1)
Provide a specific statement of the issue of law or fact to be
raised or controverted, (2) provide a brief explanation of the
basis for the contention, (3) demonstrate that the issue raised
in the contention is within the scope of the proceeding, and (4)
demonstrate that the issue raised in the contention is material
to the findings the NRC must make to support the action that is
involved in the proceeding. See 10 CFR 2.309(f). In the context
of EJ-related matters, the only possible basis for an admissible
contention is NEPA, which statutorily mandates a hard look at the
significant environmental impacts of a proposed major Federal
action. Because E.O. 12898 does not create any new rights, it
cannot provide a legal basis for contentions to be litigated in
NRC licensing proceedings.
B.3 Comment: Though noting that 6-609 of the E.O. expressly
states that no new rights are created by the E.O., a commenter
stated that at least two administrative appeals tribunals (the
Environmental Appeals Board and the Interior Board of Land
Appeals) have reviewed decisions for compliance with the E.O. as
a matter of policy under existing statutory authority. The
commenter suggested that the policy statement provide an
explanation of how and under what standards issues of
environmental justice are presently reviewed by the NRC within
the context of NEPA or other statutory authority.
Response: Although independent agencies, such as the Commission,
are not required to follow the E.O., the Commission has stated
that it will endeavor to carry out the measures set forth in the
E.O. The policy statement seeks to make clear that, in following
the spirit of the E.O., the Commission's intent is to comply with
NEPA. B.4 Comment: Several commenters stated that the policy
statement contradicts former Chairman Selin's acknowledgment that
the E.O. applies to the NRC's requirements under NEPA.
Specifically, the commenters stated that the E.O. intended to
expand the scope of the NRC's NEPA requirements to include
EJ-related matters in licensing proceedings, not limit that
scope.
Response: Consistent with Commission practice and the E.O., EJ
issues are addressed in the context of the agency's NEPA
responsibilities. EJ-related matters properly within the NEPA
context are limited only to the extent that any ``EJ''
contentions are valid NEPA contentions and are set out and
supported as required by 10 CFR Part 2 of the Commission's
regulations. The E.O. neither expanded nor limited the scope of
the agency's NEPA responsibilities or the way environmental
issues may be dealt with in agency proceedings.
C. NEPA as the Basis for Considering Environmental
Justice-Related Matters C.1 Comment: One commenter stated that
the AEA provides a basis for the NRC to carry out the goals of
E.O. 12898. The commenter noted that the AEA provides that the
development of atomic energy shall be regulated so as to protect
the health and safety of the public.
Given the broad goals of the E.O. and the specific mandate of the
AEA to protect public health and safety, the commenter stated
that the AEA presents a clear opportunity for the NRC to address
environmental hazards in low-income and minority communities.
Response: The AEA does not give the Commission the authority to
consider EJ-related issues in NRC licensing and regulatory
proceedings. Apart from the mandate set forth in NEPA, the
Commission is limited to the consideration of radiological health
and safety and common defense and security. See New Hampshire v.
Atomic Energy Commission, 406 F.2d 170, 175, 176 (1st Cir. 1969).
C.2 Comment: One letter commented that NEPA is a procedural
statute that does not require a particular outcome; by contrast,
E.O. 12898 promotes the implementation of Federal policies and
duties in a nondiscriminatory manner.
Response: As stated in the Presidential Memorandum, both
``environmental and civil rights statutes provide many
opportunities to address environmental hazards in minority
communities and low-income communities.'' Memorandum for Heads of
All Departments and Agencies (Feb. 11, 1994) (Presidential
Memorandum). In the licensing context, the NRC's focus is on full
disclosure, as required by NEPA, of the environmental impacts
associated with a proposed action ``* * * and [to] take care to
mitigate or avoid special impacts attributable to the special
character of the community.'' PFS, CLI-02-20, 56 NRC at 156.
In the context of providing financial assistance, the
Commission's regulations in 10 CFR Part 4 prohibit discrimination
with respect to race, color, national origin, or sex in any
program or activity receiving Federal financial assistance from
the NRC.
C.3 Comment: Several commenters stated that the E.O. is more than
a mere reminder to the agencies of their preexisting EJ
obligations. One commenter stated that by handling EJ matters as
part of the Commission's ``normal and traditional processes'' the
NRC is ignoring the E.O.'s direction to Federal agencies to be
proactive in identifying and considering EJ matters in NEPA and
other activities. Other commenters stated that the E.O. was an
admission of failure in addressing EJ matters and was intended to
rectify the failure by codifying EJ analysis into agency
activities.
Response: The NRC strives to proactively identify and consider
environmental justice issues in pertinent agency licensing and
regulatory actions primarily by fulfilling its NEPA
responsibilities for such actions. As part of NEPA's original
mandate, agencies are required to look at the socioeconomic
impacts that have a nexus to the physical environment. See 40 CFR
1508.8. It is the Commission's view that the obligation to
consider and assess disproportionately high and adverse impacts
on low-income and minority populations as part of its NEPA review
was not created by the E.O. Rather, it is the Commission's view
that the E.O. reminded agencies that such an analysis is
appropriate in its normal and traditional NEPA review process.
While the E.O. directs Federal agencies to ``* * * develop an
agency-wide environmental justice strategy * * *,'' it did not
suggest that agencies codify EJ analysis into their regulations.
The E.O. directed Federal agencies to ``* * * make achieving
environmental justice [to the greatest extent practicable
[[Page 52045]] and permitted by law] part of its mission by
identifying and addressing, as appropriate, disproportionately
high and adverse human health or environmental effects of its
programs, policies, and activities on minority populations and
low-income populations. * * *'' Executive Order No. 12898, 59 FR
at 7629 (Section 1-101). In fact, the Presidential Memorandum
specifically discussed implementing the E.O. within the bounds of
already existing law, such as NEPA. See Presidential Memorandum
at p. 1. In LES, CLI-98-3, 47 NRC 77, the Commission stated that
``[t]he only `existing law' conceivably pertinent [to the NRC's
fulfillment of the E.O.] is NEPA, a statute that centers on
environmental impacts.'' LES, 47 NRC at 102. D. Racial Motivation
D.1 Comment: A number of commenters requested that the Commission
reject the policy statement because it does not resolve the issue
of racial discrimination in the siting of nuclear reactors and
other facilities licensed by the NRC. Several comments stated
that the policy statement should pay special attention to the
nuclear industry's history of siting facilities in minority and
disadvantaged communities with special attention to facilities
sited on ancient ancestral homelands of Native Americans.
Response: The Commission continues to recognize that ``racial
discrimination is a persistent and enduring problem in American
society.'' LES, CLI-98-3, 47 NRC 77, 101 (1998). However, as
explained in the draft policy statement, EJ issues are only
considered when and to the extent required by NEPA. NEPA is an
environmental statute and a broad-ranging inquiry into
allegations of racial discrimination goes beyond the scope of
NEPA's mandate to adequately identify and weigh significant
adverse environmental impacts.
D.2 Comment; Several commenters asserted that the statement that
``racial motivation and fairness or equity issues are not
cognizable under NEPA* * *'' represents a debasement of the
express intent and spirit of the E.O., which is an executive
charge to take into consideration the complex matrix of race,
class, and ethnic elements that might indicate discrimination
against low-income and minority populations.
Several commenters stated that racial bias is a legitimate
consideration in the NEPA process because it relates to the
objectivity of the decisionmaking process for evaluating
environmental impacts and choosing among alternatives. This
commenter further asserted that expertise in racial
discrimination is not necessary to determine that scientific
criteria are not being applied objectively.
Response: NEPA is not the appropriate context in which to assess
racial motivation and fairness or equity issues. As stated by the
Commission in LES, ``were NEPA construed broadly to require a
full examination of every conceivable aspect of federally
licensed projects, `available resources may be spread so thin
that agencies are unable adequately to pursue protection of the
physical environment and natural resources.'' LES, CLI-98-3, 47
NRC 77, 102-03, quoting Metropolitan Edison Co., 460 U.S. 766,
776 (1983). E. Environmental Assessments E.1 Comment: Several
commenters stated that the policy of not doing an EJ review for
an environmental assessment (EA) where a Finding of No
Significant Impact (FONSI) is expected appears to absolve the NRC
from carrying out the type of proactive reviews E.O. 12898 sought
to promote. One letter expressed the concern that the NRC will
use EAs and FONSIs to avoid an EJ analysis. This commenter stated
that if the NRC has not done an EJ review in a site-specific EIS,
then the NRC has no basis for determining whether a specific
action has unique EJ impacts on a minority or low-income
community. Another commenter stated that ``absent [an EJ] review,
it is possible that significant impacts to minorities and
low-income populations could be missed.'' A separate commenter,
however, agreed with the draft policy statement that unless
special circumstances exist, an EJ review is unnecessary in an EA
where a FONSI is expected. Nevertheless, this commenter suggested
that the policy statement ``set forth with specificity the
`special circumstances' that will warrant [an EJ] review.''
Another commenter stated that the ``special circumstances''
requiring the completion of an EJ review should ``arise where [a]
facility has a clear potential for off-site impacts to minority
and low-income communities and these impacts have never been
addressed in any NEPA review.'' Response: The Commission's policy
does not eliminate the possibility of an EJ review in the context
of an EA. Rather, the policy limits such a review to those times
when a FONSI may not be appropriate because impacts that would
not otherwise be significant could be significant due to the
unique characteristics of low-income or minority communities.
Under those special circumstances, an EJ review may be necessary
to provide the basis for concluding that there are no significant
environmental impacts. With regard to EAs, the policy statement
clarifies the previously undefined ``special circumstances'' and
notes that, in the case of most EAs, there are little or no
offsite impacts and, therefore, an EJ review is generally not
necessary to make a FONSI.
An EJ review in an EA is anticipated by the Commission, where, as
described in one of the comments, a proposed action has clear
potential for offsite impacts to minority and low-income
communities. In these circumstances an EJ analysis will be done
during the preparation of an EA regardless of whether an EJ
analysis had been addressed in an earlier NEPA analysis for the
site. However, an EJ analysis will not be performed during an EA
if the proposed action does not create a clear potential for
offsite impacts even in circumstances where EJ was not addressed
in an earlier NEPA analysis for the site.
E.2. Comment: One commenter requested that the final policy
statement clarify that the only circumstance warranting an EJ
review in the EA/FONSI context is where a clear potential for
offsite impacts from the proposed action exists.
Response: As discussed above and in the draft policy statement,
the Commission does not foresee circumstances warranting an EJ
review except where there is a clear potential for offsite
impacts.
E.3 Comment: One commenter suggests that the NRC should solicit
public comment with respect to EJ during the EA process to
determine whether there are cumulative impacts that might be
significant on the subject population.
Response: As a general matter, public comments are not sought
during the preparation of an EA. During an EA, the NRC might seek
public comment only in those special circumstances where there is
a clear potential for offsite impacts and there are some
indications of populations that might signal the existence of an
EJ issue.
F. Generic/Programmatic EISs F.1 Comment: Several commenters
addressed the consideration of EJ- related matters in generic and
programmatic EISs. The commenter's view was that in some
circumstances, the consideration of EJ issues should be required
when it is apparent that the generic NRC regulatory program will
have significant impacts on a number of similar low-income or
minority communities.
[[Page 52046]] Response: The Commission believes it is difficult
to foresee or predict many circumstances, if any, in which a
meaningful NRC EJ analysis could be completed for a generic or
programmatic EIS given the lack of site-specific information.
Nonetheless, the Commission's policy will not preclude the
possibility of an EJ analysis in programmatic or generic EISs if
a meaningful review can be completed.
G. Numeric Criteria G.1 Comment: Several commenters disagreed
with the numeric guidance used to identify the geographic area in
which demographic information is sought and to identify
potentially affected low-income and minority communities. One
commenter stated that the numeric limits are arbitrary in that no
objective basis for setting those limits and no legal basis for
that practice exist. The commenter further stated that the NRC
must ensure that its NEPA evaluation properly identifies and
accounts for unique facts associated with a particular community
that may contribute to a larger or lesser impact. It should not
matter whether that community falls within any of the numeric
criteria used by the NRC staff to evaluate EJ, but rather whether
there is any particular community that, by its very nature, would
suffer a greater or lesser impact from a proposed Federal action.
Another commenter stated that the numeric guidance is misleading
because such guidance may cause staff to overlook significantly
and uniquely impacted areas because they failed the quantitative
test and were not examined further. The same commenter also
described such guidance as risky because such numerical measures
may not encompass the range of factors used to determine
low-income or minority status.
Response: The Commission recognizes that the numeric criteria are
guidance--a starting point--for staff to use when defining the
geographic area for assessment and identifying low-income and
minority communities within the geographic area. To the extent
possible, the staff will continue to use numeric guidance as a
screening tool since such guidance should be sufficient in most
cases; however, the staff analysis also includes the
identification of EJ concerns during the scoping process. This is
clearly articulated in the policy statement, as well as in
existing staff guidance. See NUREG-1748. G.2 Comment: One
commenter stated the 50 miles normally used by NRR should be
applied by NMSS in the case of the Yucca Mountain High-Level
Waste Repository.
Response: This policy statement does not address site-specific
concerns. In accordance with NEPA, and consistent with Commission
practice, the geographic area assessed for NEPA purposes will be
commensurate with the potential impact area of the proposed
activity. The distances are guidelines used by NRR and NMSS to
reflect the different activities regulated by those offices and
are generally consistent with the area of potential impacts
normally considered in NRC environmental and safety reviews. With
regard to the high-level waste repository, the NWPA defines the
agency's NEPA obligations.
G.3 Comment: One commenter suggested that the policy statement
should encourage or require the selection of the methodology that
identifies the most eligible census blocks, not the least when
identifying low-income or minority populations. As an example,
the commenter stated that using Nevada as the metric, Nye County
may have only one low-income block. This block would not include
the Yucca Mountain High-Level Waste Repository. However, the
commenter noted that if Nye County is used as a metric for
comparison, then most of the census blocks in the county may be
EJ eligible. This commenter further stated that this is a more
reasonable approach because rural areas generally are
economically depressed.
Response: The NRC uses the Census ``block group'' as the
geographic area for evaluating census data because the U.S.
Census Bureau does not report information on income for
``blocks'', the smaller geographic area. In accordance with staff
guidance, the impacted area may be compared to either the State
or the County data. Furthermore, staff analysis will be
supplemented by the results of the EIS scoping review to obtain
additional information. This should adequately identify the
presence, if any, of a low-income or minority population in the
impacted area. This policy statement is not site-specific and
cannot address the specific comment regarding the High-Level
Waste Repository at Yucca Mountain.
H. Scoping/Public Participation H.1 Comment: Several commenters
assert that, in addition to the draft policy statement's
paragraph addressing scoping, the final policy statement should
include a public participation and outreach element in the
decisionmaking process that conforms to the E.O., and CEQ and NRC
policies.
Response: The Commission's intent in drafting the statement is to
clarify that EJ is a normal, but not expansive, part of NEPA.
The policy statement was not intended to address public
participation more than the current 10 CFR Part 51 and staff
environmental review guidance does.
III. Final Policy Statement The Executive Order Does Not Create
Any New or Substantive Requirements or Rights E.O. 12898 does not
establish new substantive or procedural requirements applicable
to NRC regulatory or licensing activities. Section 6-609 of the
E.O. explicitly states that the E.O. does not create any new
right or benefit. By its terms, the E.O. is ``intended only to
improve the internal management of the executive branch and is
not intended to, nor does it create any right [or] benefit * * *
enforceable at law * * *'' 59 FR at 7632-33 (Section 6-609); see
also Presidential Memorandum. Courts addressing EJ issues have
uniformly held that the E.O. does not create any new rights to
judicial review. See, e.g., Sur Contra La Contaminacion v. EPA,
202 F.3d 443, 449-50 (1st Cir. 2000). Consequently, it is the
Commission's position that the E.O. itself does not provide a
legal basis for contentions to be admitted and litigated in NRC
licensing proceedings. See LES, CLI-98-3, 47 NRC 77; PFS,
CLI-02-20, 56 NRC 147.
NEPA, Not the Executive Order, Obligates the NRC To Consider
Environmental Justice-Related Issues The basis for admitting EJ
contentions in NRC licensing proceedings stems from the agency's
NEPA obligations, and EJ-related contentions had been admitted by
an NRC Licensing Board prior to the issuance of the E.O. in 1994.
See LES, LBP-91-41, 34 NRC at 353. As clearly stated in 1-101 of
the E.O., an agency's EJ responsibilities are to be achieved to
the extent permitted by law. See 59 FR at 7629 (Section 1- 101).
The accompanying Presidential Memorandum stated that ``each
Federal agency shall analyze the environmental effects * * * of
Federal actions, including effects on minority communities and
low-income communities, when such analysis is required by
[NEPA].'' Memorandum for Heads of All Departments and Agencies
(Feb. 11, 1994) (Presidential Memorandum).\2\ The E.O. simply
serves
[[Page 52047]] as an appropriate and timely reminder to agencies
to become aware of the various demographic and economic
circumstances of local communities as part of any socioeconomic
analysis that might be required by NEPA or their authorizing
statutes. See 40 CFR 1508.8 and 1508.14 (2003).
-----------------------------------------------------------------
---------- \2\ NEPA is the only available statute under which the
NRC can carry out the general goals of E.O. 12989. Although the
Presidential Memorandum directed Federal agencies to ensure
compliance with the nondiscrimination requirements of Title VI of
the Civil Rights Act of 1964 for all Federally funded programs
and activities that affect human health or the environment, Title
VI is inapplicable to the NRC's regulatory and licensing actions.
Likewise, while environmental justice matters may be
appropriately addressed during the permitting process under other
environmental statutes, including the Resource Conservation and
Recovery Act, the Clean Water Act, and the Clean Air Act, the NRC
does not have permitting authority under those statutes.
-----------------------------------------------------------------
---------- The Commission, in LES, has made it clear that EJ
issues are only considered when and to the extent required by
NEPA. The Commission held that the disparate impact analysis
within the NEPA context is the tool for addressing EJ issues and
that the ``NRC's goal is to identify and adequately weigh or
mitigate effects, on low-income and minority communities' by
assessing impacts peculiar to those communities.
LES, CLI-98-3, 47 NRC at 100; see also, PFS, CLI-02-20, 56 NRC at
156. At bottom, for the NRC, EJ is a tool, within the normal NEPA
context, to identify communities that might otherwise be
overlooked and identify impacts due to their uniqueness as part
of the NRC's NEPA review process.
As part of NEPA's mandate, agencies are required to look at the
socioeconomic impacts that have a nexus to the physical
environment. See 40 CFR 1508.8 and 1508.14. An
``environmental-justice''-related socioeconomic impact analysis
is pertinent when there is a nexus to the human or physical
environment or if an evaluation is necessary for an accurate
cost-benefits analysis. See One Thousand Friends of Iowa v.
Mineta, 250 F. Supp. 2d 1064, 1072 (S.D. Iowa 2002) (the fact
that numerous courts have held that an agency's failure to
expressly consider environmental justice does not create an
independent basis for judicial review forecloses any argument
that NEPA was designed to protect socioeconomic interests alone).
Therefore, EJ per se is not a litigable issue in NRC proceedings.
The NRC's obligation is to assess the proposed action for
significant impacts to the physical or human environment. Thus,
admissible contentions in this area are those which allege, with
the requisite documentary basis and support as required by 10 CFR
Part 2, that the proposed action will have significant adverse
impacts on the physical or human environment that were not
considered because the impacts to the community were not
adequately evaluated.
Racial Motivation Not Cognizable Under NEPA Racial motivation and
fairness or equity issues are not cognizable under NEPA, and
though discussed in the E.O., their consideration would be
contrary to NEPA and the E.O.'s limiting language emphasizing
that it creates no new rights.\3\ The focus of any ``EJ'' review
should be on identifying and weighing disproportionately
significant and adverse environmental impacts on minority and
low-income populations that may be different from the impacts on
the general population. It is not a broad-ranging or even limited
review of racial or economic discrimination. As the Commission
explained in LES, ``an inquiry into a license applicant's
supposed discriminatory motives or acts would be far removed from
NEPA's core interest: `the physical environment--the world around
us. * * * ' '' LES, CLI-98-3, 47 NRC at 102, quoting Metropolitan
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772
(1983). Thus, the EJ evaluation should disclose whether
low-income or minority populations are disproportionately
impacted by the proposed action.
-----------------------------------------------------------------
---------- \3\ Such issues are more appropriately considered
under Title VI of the Civil Rights Act. See LES, CLI-98-3, 47 NRC
at 101-106. The NRC does not have the authority to enforce Title
VI in the NRC licensing process.
-----------------------------------------------------------------
---------- Environmental Assessments Normally Do Not Include
Environmental Justice Analysis The agency's assessment of
environmental justice-related matters has been limited in the
context of EAs. Previously, the Commission has stated that absent
``significant impacts, an environmental justice review should not
be considered for an EA where a Finding of No Significant Impact
[FONSI] is issued unless special circumstances warrant the
review.'' SRM-MO21121A (Supplemental)--Affirmation Session: 1.
SECY-02-0179--Final Rule: Material Control and Accounting
Amendments, Dec. 3, 2002 (ADAMS Accession No. ML023370498).\4\ If
there will be no significant impact as a result of the proposed
action, it follows that an EJ review would not be necessary.
However, the agency must be mindful of special circumstances that
might warrant not making a FONSI. In most EAs, the Commission
expects that there will be little or no offsite impacts and,
consequently, impacts would not occur to people outside the
facility. However, if there is a clear potential for significant
offsite impacts from the proposed action then an appropriate EJ
review might be needed to provide a basis for concluding that
there are no unique impacts that would be significant. If the
impacts are significant because of the uniqueness of the
communities, then a FONSI may not be possible and mitigation or
an EIS should be considered.
-----------------------------------------------------------------
---------- \4\ At least one court supports the view that EJ does
not need to be considered in an EA. See American Bus Ass'n v.
Slater, 1999 U.S. Dist. LEXIS 20936, 9 Am. Disabilities Cas.
(BNA) 1427 (D.C. Cir. Sept. 10, 1999).
-----------------------------------------------------------------
---------- Generic and Programmatic Impact Statements Do Not
Include Environmental Justice Analysis An NRC EJ analysis should
be limited to the impacts associated with the proposed action
(i.e., the communities in the vicinity of the proposed action).
EJ-related issues differ from site to site and normally cannot be
resolved generically. Consequently, EJ, as well as other
socioeconomic issues, are normally considered in site-specific
EISs. Thus, due to the site-specific nature of an EJ analysis,
EJ- related issues are usually not considered during the
preparation of a generic or programmatic EIS. EJ assessments
would be performed as necessary in the underlying licensing
action for each particular facility.
Need for Flexibility in NRC's Environmental Justice Analyses The
procedural guidelines for EJ review should allow for flexibility
in the analysis to reflect the unique nature of each review. It
is important, however, that the NRC be consistent in its approach
to this matter and develop clear, defined procedural guidance for
identifying minority and low-income communities and assessing the
impacts they may experience.
1. Defining Geographic Area for Assessment One of the first steps
the staff takes in its EJ analysis is to identify the geographic
area for which it seeks to obtain demographic information. While
staff guidance states that the geographic scale should be
commensurate with the potential impact area, NMSS and NRR have
adopted numeric guidance based on activities that those offices
regulate. Under current NMSS procedures, the potentially affected
area is normally determined to be a radius of 0.6 mile from the
center of the proposed site in urban areas, and four miles if the
facility is located in a rural area. NRR normally uses a 50-mile
radius that should be examined for licensing and regulatory
[[Page 52048]] actions involving power reactors. These distances
reflect the different activities regulated by NRR and NMSS and
are consistent with the area of potential impacts normally
considered in NRC environmental and safety reviews. However,
these procedures provide that the distances are guidelines and
that the geographic scale should be commensurate with the
potential impact area and should include a sample of the
surrounding population because the goal is to evaluate the
communities, neighborhoods, and areas that may be
disproportionately impacted.
For the purposes of NEPA, the Commission recognizes that
numerical distances are helpful to characterize the likely extent
of impacts for categories of regulatory action. Thus, we are
retaining the current procedure as articulated by NMSS and NRR in
their respective office guidance since this numeric guidance
should be sufficient in most cases to include all areas with an
actual or potential for reasonably foreseeable physical, social,
cultural, and health impacts.
2. Identifying Low-Income and Minority Communities Once the
impacted area is identified, potentially affected low- income and
minority communities should be identified. Under current NRC
staff guidance, a minority or low-income community is identified
by comparing the percentage of the minority or low-income
population in the impacted area to the percentage of the minority
or low-income population in the County (or Parish) and the State.
If the percentage in the impacted area significantly exceeds that
of the State or the County percentage for either the minority or
low-income population then EJ will be considered in greater
detail. ``Significantly'' is defined by staff guidance to be 20
percentage points. Alternatively, if either the minority or
low-income population percentage in the impacted area exceeds 50
percent, EJ matters are considered in greater detail.
As indicated above, numeric guidance is helpful; thus, the staff
should continue to use such guidance in identifying minority and
low-income communities. The staff's analysis will be supplemented
by the results of the EIS scoping review discussed below.
3. Scoping The NRC will emphasize scoping, the process identified
in 10 CFR 51.29, and public participation in those instances
where an EIS will be prepared. Reliance on traditional scoping is
consistent with the E.O. and CEQ guidance. See E.O. 12898, 59 FR
at 7632 (Section 5-5); CEQ Guidance at 10-13. CEQ guidance
reminds us that ``the participation of diverse groups in the
scoping process is necessary for full consideration of the
potential environmental impacts of a proposed agency action and
any alternatives. By discussing and informing the public of the
emerging issues related to the proposed action, agencies may
reduce misunderstandings, build cooperative working
relationships, educate the public and decisionmakers, and avoid
potential conflicts.'' CEQ Guidance at 12. Thus, it is expected
that in addition to reviewing available demographic data, a
scoping process will be utilized preceding the preparation of a
draft EIS. This will assist the NRC in ensuring that minority and
low-income communities, including transient populations, affected
by the proposed action are not overlooked in assessing the
potential for significant impacts unique to those communities.
IV. Guidelines for Implementation of NEPA as to Environmental
Justice Issues The legal basis for the NRC analyzing
environmental impacts of a proposed Federal action on minority or
low-income communities is NEPA, not Executive Order 12898. The
E.O. emphasized the importance of considering the NEPA provision
for socioeconomic impacts. The NRC considers and integrates what
is referred to as environmental justice matters in its NEPA
assessment of particular licensing or regulatory actions.
In evaluating the human and physical environment under NEPA,
effects on low-income and minority communities may only be
apparent by considering factors peculiar to those communities.
Thus, the goal of an EJ portion of the NEPA analysis is (1) To
identify and assess environmental effects on low-income and
minority communities by assessing impacts peculiar to those
communities; and (2) to identify significant impacts, if any,
that will fall disproportionately on minority and low-income
communities. It is not a broad-ranging review of racial or
economic discrimination.
In developing an EA where a FONSI is expected it is not necessary
to undertake an EJ analysis unless special circumstances warrant
the review. Special circumstances arise only where the proposed
action has a clear potential for off-site impacts to minority and
low- income communities associated with the proposed action. In
that case, an appropriate review may be needed to provide a basis
for concluding that there are no unique environmental impacts on
low-income or minority communities that would be significant.
EJ-related issues normally are not considered during the
preparation of generic or programmatic EISs. In general,
EJ-related issues, if any, will differ from site to site and,
thus, do not lend themselves to generic resolutions.
Consequently, EJ, as well as other socioeconomic issues, are
considered in site-specific EISs.
EJ per se'' is not a litigable issue in NRC proceedings. Rather
the NRC's obligation is to assess the proposed action for
significant impacts to the physical or human environment.
Contentions must be made in the NEPA context, must focus on
compliance with NEPA, and must be adequately supported as
required by 10 CFR Part 2 to be admitted for litigation.
The methods used to define the geographic area for assessment and
to identify low-income and minority communities should be clear,
yet allow for enough flexibility that communities or transient
populations that will bear significant adverse effects are not
overlooked during the NEPA review. Therefore, in determining the
geographic area for assessment and in identifying minority and
low- income communities in the impacted area, standard distances
and population percentages should be used as guidance,
supplemented by the EIS scoping process, to determine the
presence of a minority or low- income population.
The assessment of disparate impacts is on minority and low-income
populations in general and not to the ``vaguely defined, shifting
``subgroups'' within that community.'' See PFS, CLI-02-20, 56 NRC
at 156.
In performing a NEPA analysis for an EIS, published demographic
data, community interviews and public input through well- noticed
public scoping meetings should be used in identifying minority
and low-income communities that may be subject to adverse
environmental impacts.
Dated at Rockville, Maryland, this 18th day of August, 2004.
Annette Vietti-Cook, Secretary of the Commission.
[FR Doc. 04-19305 Filed 8-23-04; 8:45 am] BILLING CODE 7590-01-P
*****************************************************************
12 BBC: Ukraine's Cold War theme park
Last Updated: Tuesday, 24 August, 2004
By Helen Fawkes BBC correspondent in Kiev
Yuriy uses both hands to heave open the door. This is no ordinary
door, but a metre thick barrier at the end of tunnel deep
underground.
[Empty rocket silo]
Some former rocket silos are now functioning museums
The passage way leads to the command centre at what used to be
one of the most top secret military bases in the former Soviet
Union.
Surrounded by fields of wheat and soya in the countryside of
southern Ukraine, there are 10 empty nuclear rocket silos.
Inside what is now a museum, tourists are able to press the
button which would have launched a nuclear strike against the
United States.
Yuriy used to look after the missiles during the Cold War but now
works as a tour guide at the Strategic Rocket Base in Pervomaisk.
It's almost like being in James Bond 007 movie... it's thrilling
to be here Alan Dudley, Canadian tourist
"It's always been a great mystery to people, what was happening
behind the Iron Curtain," says Colonel Yuriy Yevtushenko.
"Getting to this place was impossible. No one from this country
was allowed to this base, not even military people."
Accident-prone army
But now its doors are open seven days a week.
[A woman presses the button that would have launched a nuclear
attack on the US]
Tourists see how the USSR could have launched a nuclear strike
Ukraine is celebrating 13 years of independence from the USSR on
Tuesday, but the country's underfunded military is struggling to
cope.
Defence Minister Yevhen Marchuk has admitted that Ukraine's army
is so poverty-stricken that it is a danger to its own people.
He claims the military has not bought a single tank or aircraft
since 1991.
One thing it has acquired though is a bad reputation for
accidents.
A fighter jet crashed into a crowd at an air show two years ago,
a passenger plane was mistakenly shot down during an exercise in
2001 and the year before that, a stray surface-to-surface missile
hit a Ukrainian apartment block.
Since independence, hundreds of people have died in military
accidents.
"The situation is very bad. Unfortunately, the Ukrainian army has
got many problems which have been getting worse for a long time,"
says a Ukrainian military analyst, Valentyn Badrak.
Ukraine also has 2.5 million tonnes of Soviet munitions which it
can scarcely afford to decommission.
There are almost 200 arms dumps and in May one of them exploded
in southern Ukraine, causing some $500m of damage.
'Top tourist attraction'
Former top secret military bases are being opened up and it is
hoped this will add to the military's coffers.
[Inside the base]
Tours are offered to explore the tunnels of a submarine base
Dotted along the Crimean coast are three discreet entrances to a
massive man-made cave.
Engineers who constructed the Moscow metro buried deep inside a
hill which overlooks Balaklava Bay to build a submarine base.
This is where nuclear subs from the Black Sea Fleet were kept
hidden.
The base was considered so highly classified that civilians were
banned from coming within at least 30 kilometres (19 miles) by
the Soviet authorities.
Visitors are now actively encouraged.
But tourists can only see the base by torch, as there are no
proper lights yet.
Groups are taken through a locked metal gate complete with hammer
and sickle.
The guide leads them through long, cold tunnels.
The floor is criss-crossed with rail tracks which were used to
transport the nuclear weapons.
This is set to become a top tourist attraction in the Crimea.
"It's almost like being in a James Bond 007 movie," says Alan
Dudley, a holiday-maker from Canada.
"To see this facility, you can just imagine the things that went
on during the Cold war, the secrecy, it's thrilling to be here,
it's really exciting, I wanted to come here for a long time."
*****************************************************************
13 AFP: Iran would retaliate if Israel attacked nuclear facilities - Kharazi
WAR.WIRE