52040 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 

conducting a full review of the facility’s 

vulnerabilities, security measures, and 

evacuation plans, the NRC cannot 

sufficiently ensure the security of the IP 

facility against terrorist threats or cannot 

ensure the safety of New York and 

Connecticut citizens in the event of an 

accident or terrorist attack. 

The Petitioner’s representative 

participated in a teleconference with the 

Petition Review Board (PRB) on June 19, 

2003, to discuss the Petition. This 

teleconference gave the Petitioner and 

the licensee an opportunity to provide 

additional information and to clarify 

issues raised in the Petition as 

supplemented. The results of this 

discussion were considered in the PRB’s 

determination regarding the request for 

immediate action and in establishing 

the schedule for reviewing the Petition. 

In a letter dated July 3, 2003, the PRB 

notified the Petitioner that it had 

determined that his request would be 

treated pursuant to 10 CFR 2.206 of the 

Commission’s regulations. The July 3, 

2003, letter further stated: ‘‘In response 

to your requests for immediate actions 

contained in items 1, 2, 3, and 4 above, 

the NRC has, in effect, partially granted 

your requests.’’

The NRC sent a copy of the proposed 

Director’s Decision to the Petitioner and 

to Entergy Nuclear Operations, Inc. (the 

licensee), for comment on May 17, 2004. 

The Petitioner responded with 

comments on June 18, 2004. The 

comments and the NRC staff’s response 

to them are included in the Director’s 

Decision. 

The Director of the Office of Nuclear 

Reactor Regulation has determined that 

the NRC’s actions have, in effect, 

partially granted the Petitioner’s request 

for an immediate review of 

vulnerabilities, security measures, and 

evacuation and emergency response 

planning at IP2 and 3. In addition, the 

NRC previously issued a Director’s 

Decision on November 18, 2002, which 

addresses many of the security measures 

and emergency planning issues raised in 

this Petition. See Indian Point, 56 NRC 

at 300–311. No further action is deemed 

necessary to address the Petitioner’s 

request regarding these issues. 

Subsequent to that November 18, 2002, 

Director’s Decision, the NRC in its April 

29, 2003, Orders required IP and other 

plants to implement additional security 

measures. Moreover, on July 25, 2003, 

the Federal Emergency Management 

Agency (FEMA) determined that 

reasonable assurance existed that 

appropriate protective measures to 

protect the health and safety of 

communities around IP2 and 3 can be 

implemented in the event of a 

radiological incident at the IP facility. 

See 68 FR 57702 (October 6, 2003). 

FEMA reaffirmed this position in a 

letter to the Petitioner dated June 1, 

2004. Consequently, the NRC denies the 

remainder of the Petitioner’s requests. 

The reasons for this decision are 

explained in the Director’s Decision 

pursuant to Title 10 of Code of Federal 

Regulations (10 CFR) Section 2.206 

(DD–04–03), the complete text of which 

is available in ADAMS for inspection at 

the Commission’s Public Document 

Room, located at One White Flint North, 

Public File Area O1 F21, 11555 

Rockville Pike (first floor), Rockville, 

Maryland, and from the ADAMS Public 

Library component on the NRC’s Web 

site, http://www.nrc.gov/readingrm.html (the Public Electronic Reading 

Room). 

A copy of the Director’s Decision will 

be filed with the Secretary of the 

Commission for the Commission’s 

review in accordance with 10 CFR 2.206 

of the Commission’s regulations. As 

provided for by this regulation, the 

Director’s Decision will constitute the 

final action of the Commission 25 days 

after the date of the Decision unless the 

Commission, on its own motion, 

institutes a review of the Director’s 

Decision in that time.

Dated at Rockville, Maryland, this 17th day 

of August 2004.

For the Nuclear Regulatory Commission. 

J.E. Dyer, 

Director, Office of Nuclear Reactor 

Regulation.

[FR Doc. 04–19307 Filed 8–23–04; 8:45 am] 

BILLING CODE 7590–01–P

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.

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.

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 lowincome populations. * * *’’ Executive 

Order No. 12898 (Section 1–101), 59 FR 

7629 (February 16, 1994). Although 

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52041

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.

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).

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 lowincome 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 

52042 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 

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 

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 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 caseby-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 

52044 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 

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. EJrelated 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 lowincome 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 agencywide 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 

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 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 broadranging 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 sitespecific 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 EJrelated 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. 

52046 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 

2NEPA 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 

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 lowincome 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 

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52047

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.

3Such 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.

4At 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).

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).

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.

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.

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 

52048 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 

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 lowincome population in the impacted area 

to the percentage of the minority or lowincome 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 lowincome 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

NUCLEAR REGULATORY 

COMMISSION 

Sunshine Federal Register Notice

AGENCY HOLDING THE MEETING: Nuclear 

Regulartory Commission.

DATE: Weeks of August 23, 30, 

September 6, 13, 20, 27, 2004.