[Federal Register Volume 68, Number 214 (Wednesday, November 5, 2003)]
[Notices]
[Pages 62642-62645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27805]


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NUCLEAR REGULATORY COMMISSION


Policy Statement on the Treatment of Environmental Justice 
Matters in NRC Regulatory and Licensing Actions

AGENCY: Nuclear Regulatory Commission.

ACTION: Issuance of draft policy statement and notice of opportunity 
for public comment.

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SUMMARY: This draft policy statement on the treatment of environmental 
justice (EJ) matters in Nuclear Regulatory Commission (NRC) regulatory 
and licensing actions is being issued for public comment. It 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 to fulfill its 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.

DATES: Comments on this draft policy statement should be submitted by 
January 5, 2004, and will be considered by the NRC before publishing 
the final policy statement. Comments received after this date will be 
considered if it is practical to do so, but the Commission is able to 
ensure consideration only for comments received on or before this date.

ADDRESSES: Submit comments to the Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff. Deliver comments to: 11555 Rockville Pike, 
Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. on Federal 
workdays. Because of continuing disruptions in the delivery of mail to 
United States Government offices, it is requested that comments also be 
transmitted to the Secretary of the Commission either by means of 
facsimile transmission to (301) 415-1101, or by e-mail to 
[email protected]. Comments received may be examined at the NRC 
Public Document Room, 11555 Rockville Pike, Rockville, Maryland or at 
NRC's Public Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Special Counsel, 
Office of General Counsel, U.S. Nuclear Regulatory Commission, 
Washington, DC, 20555-0001. Telephone: (301) 415-2746; fax number: 
(301) 415-2036; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In February 1994, President Clinton issued E.O. 12898, ``Federal 
Actions to Address Environmental Justice in

[[Page 62643]]

Minority Populations and Low-Income Populations'' that 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 (Feb. 16, 1994). Although independent 
agencies, such as the NRC, were only requested 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 its 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) 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, Procedural Guidance for 
Preparing Environmental Assessments and Considering Environmental 
Issues (June 21, 2001) (ADAMS Accession No. ML011710073).
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    \1\ Environmental Justice, Guidance Under the National 
Environmental Policy Act, Council on Environmental Quality (Dec. 10, 
1997).
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    In 1998, the Commission, for the first time in an adjudicatory 
licensing proceeding, analyzed the Executive Order 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 located 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). 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. 
Recently, questions have been raised concerning the Commission's 
responsibilities under E.O. 12898. In light of the previous 
adjudications, the Commission sees a need, and thinks it appropriate, 
to set out its views and policy on the significance of the E.O. and 
guidelines of when and how EJ will be considered in NRC's licensing and 
regulatory actions.

II. Statement of Policy

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. provides that 
it 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 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 Sec.  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 as a 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. See 40 CFR 
1508.8 and 1508.14 (2003).
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    \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.
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    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, EJ is a tool, within the normal NEPA context, to identify 
communities that might otherwise be overlooked and

[[Page 62644]]

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 our 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 
impact on the physical or human environments 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.
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    \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.
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Environmental Assessments Normally Do Not Include Environmental Justice 
Analysis

    The agency's assessment of environmental justice-related matters 
have been limited in the context of environmental assessments (EA). 
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.
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    \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).
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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 miles 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 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 as the goal 
is to evaluate the communities, neighborhoods and areas that may be 
disproportionately impacted.
    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

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identified. Under current NRC staff guidance, a minority or low-income 
community is identified if the impacted area's percentage of minority 
or low-income population significantly exceeds that of the State or 
County. ``Significantly'' is defined by staff guidance to be 20 
percentage points. Additionally, if either the minority or low-income 
population percentage in the impacted area exceeds 50 percent, 
environment justice 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 decision makers, 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 and in assessing the potential for significant impacts 
unique to those communities.

III. Guidelines for Implementation of NEPA as to EJ Issues

    [sbull] The legal basis for 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.
    [sbull] 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.
    [sbull] In developing an EA where a Finding of No Significant 
Impact 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.
    [sbull] 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.
    [sbull] ``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.
    [sbull] 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.
    [sbull] 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 
147 (2002).
    [sbull] 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 receive adverse environmental 
impacts.

    Dated at Rockville, Maryland, this 30th day of October, 2003.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-27805 Filed 11-4-03; 8:45 am]
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