[Federal Register Volume 69, Number 163 (Tuesday, August 24, 2004)]
[Notices]
[Pages 52040-52048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19305]


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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: Final policy statement.

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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: [email protected].

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).
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    \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.
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    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

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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