ML072200594

NRC - Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Action. Federal Register, Vol. 69, Pp. 52040-52048. Washington, D.C

ML072200594
Person / Time
Site:	Oyster Creek
Issue date:	08/24/2004
From:	Annette Vietti-Cook NRC/SECY
To:
Davis J NRR/DLR/REBB, 415-3835
References
Download: ML072200594 (9)

Text

52040 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices conducting a full review of the facilitys See 68 FR 57702 (October 6, 2003). different from impacts on the general vulnerabilities, security measures, and FEMA reaffirmed this position in a population due to a communitys evacuation plans, the NRC cannot letter to the Petitioner dated June 1, distinct cultural characteristics or sufficiently ensure the security of the IP 2004. Consequently, the NRC denies the practices. Disproportionately high and facility against terrorist threats or cannot remainder of the Petitioners requests. adverse impacts of a proposed action ensure the safety of New York and The reasons for this decision are that fall heavily on a particular Connecticut citizens in the event of an explained in the Directors Decision community call for close scrutinya accident or terrorist attack. pursuant to Title 10 of Code of Federal hard lookunder NEPA. While The Petitioners representative Regulations (10 CFR) Section 2.206 Executive Order (E.O.) 12898, Federal participated in a teleconference with the (DD-04-03), the complete text of which Actions to Address Environmental Petition Review Board (PRB) on June 19, is available in ADAMS for inspection at Justice in Minority Populations and 2003, to discuss the Petition. This the Commissions Public Document Low-Income Populations, characterizes teleconference gave the Petitioner and Room, located at One White Flint North, these impacts as involving an the licensee an opportunity to provide Public File Area O1 F21, 11555 environmental justice matter, the additional information and to clarify Rockville Pike (first floor), Rockville, NRC believes that an analysis of issues raised in the Petition as Maryland, and from the ADAMS Public disproportionately high and adverse supplemented. The results of this Library component on the NRCs Web impacts needs to be done as part of the discussion were considered in the PRBs site, http://www.nrc.gov/reading- agencys NEPA obligations to accurately determination regarding the request for rm.html (the Public Electronic Reading identify and disclose all significant immediate action and in establishing Room). environmental impacts associated with the schedule for reviewing the Petition. A copy of the Directors Decision will a proposed action. Consequently, while In a letter dated July 3, 2003, the PRB be filed with the Secretary of the the NRC is committed to the general notified the Petitioner that it had Commission for the Commissions goals of E.O. 12898, it will strive to meet determined that his request would be review in accordance with 10 CFR 2.206 those goals through its normal and treated pursuant to 10 CFR 2.206 of the of the Commissions regulations. As traditional NEPA review process. This Commissions regulations. The July 3, provided for by this regulation, the final policy statement reflects the 2003, letter further stated: In response Directors Decision will constitute the pertinent comments received on the to your requests for immediate actions final action of the Commission 25 days published draft policy statement.

contained in items 1, 2, 3, and 4 above, after the date of the Decision unless the DATES: Effective August 24, 2004.

the NRC has, in effect, partially granted Commission, on its own motion, FOR FURTHER INFORMATION CONTACT:

your requests. institutes a review of the Directors The NRC sent a copy of the proposed Brooke G. Smith, Office of General Decision in that time. Counsel, Mail Stop O-15D21, U.S.

Directors Decision to the Petitioner and to Entergy Nuclear Operations, Inc. (the Dated at Rockville, Maryland, this 17th day Nuclear Regulatory Commission, licensee), for comment on May 17, 2004. of August 2004. Washington, DC 20555-0001; telephone:

The Petitioner responded with For the Nuclear Regulatory Commission. (301) 415-2490; fax number: (301) 415-comments on June 18, 2004. The J.E. Dyer, 2036; e-mail: bgs@nrc.gov.

comments and the NRC staffs response Director, Office of Nuclear Reactor SUPPLEMENTARY INFORMATION:

to them are included in the Directors Regulation. I. Background.

[FR Doc. 04-19307 Filed 8-23-04; 8:45 am] II. Summary of Public Comments and Decision. Responses to Comments.

The Director of the Office of Nuclear BILLING CODE 7590-01-P (A) General Comments Reactor Regulation has determined that (B) Creation of New or Substantive Rights the NRCs actions have, in effect, (C) NEPA as a Basis for Considering partially granted the Petitioners request NUCLEAR REGULATORY Environmental Justice-Related Matters for an immediate review of COMMISSION (D) Racial Motivation vulnerabilities, security measures, and (E) Environmental Assessments evacuation and emergency response Policy Statement on the Treatment of (F) Generic/Programmatic EISs planning at IP2 and 3. In addition, the Environmental Justice Matters in NRC (G) Numeric Criteria Regulatory and Licensing Actions (H) Scoping/Public Participation NRC previously issued a Directors III. Final Policy Statement.

Decision on November 18, 2002, which AGENCY: Nuclear Regulatory IV. Guidelines for Implementation of NEPA addresses many of the security measures Commission. as to Environmental Justice Issues.

and emergency planning issues raised in ACTION: Final policy statement.

this Petition. See Indian Point, 56 NRC I. Background at 300-311. No further action is deemed

SUMMARY

On November 5, 2003 (68 FR In February 1994, President Clinton necessary to address the Petitioners 62642), the Commission issued, for issued E.O. 12898, Federal Actions to request regarding these issues. public comment, a draft policy Address Environmental Justice in Subsequent to that November 18, 2002, statement on the treatment of Minority Populations and Low-Income Directors Decision, the NRC in its April environmental justice (EJ) matters in Populations, which directed each 29, 2003, Orders required IP and other Nuclear Regulatory Commission (NRC) Federal agency to * *

• make plants to implement additional security regulatory and licensing actions. This achieving environmental justice part of measures. Moreover, on July 25, 2003, final policy statement reaffirms that the its mission by identifying and the Federal Emergency Management Commission is committed to full addressing, as appropriate, Agency (FEMA) determined that compliance with the requirements of the disproportionately high and adverse reasonable assurance existed that National Environmental Policy Act human health or environmental effects appropriate protective measures to (NEPA) in all of its regulatory and of its programs, policies, and activities protect the health and safety of licensing actions. The Commission on minority populations and low-communities around IP2 and 3 can be recognizes that the impacts, for NEPA income populations. * *

• Executive implemented in the event of a purposes, of its regulatory or licensing Order No. 12898 (Section 1-101), 59 FR radiological incident at the IP facility. actions on certain populations may be 7629 (February 16, 1994). Although VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52041 independent agencies, such as the NRC, of the proposal on the adjacent African concerning the treatment of were only requested, rather than American communities. See id. at 86. environmental justice matters in the directed, to comply with the E.O., NRC In LES, the Commission held that Commissions regulatory and licensing Chairman Ivan Selin, in a letter to [d]isparate impact analysis is our actions. The Commission also received President Clinton, indicated that the principal tool for advancing approximately 700 postcards expressing NRC would endeavor to carry out the environmental justice under NEPA. The general opposition to the policy measures set forth in the E.O. and the NRCs goal is to identify and adequately statement.

accompanying memorandum as part of weigh, or mitigate, effects on low- The following sections A through H the NRCs efforts to comply with the income and minority communities that represent major subject areas and requirements of NEPA. See Letter to become apparent only by considering describe the principal public comments President from Ivan Selin, March 31, factors peculiar to those communities. received on the draft policy statement 1994. Following publication of the Id. at 100. The Commission emphasized (organized according to the major Council on Environmental Qualitys that the E.O. did not establish any new subject areas) and present NRC (CEQs) guidelines 1 in December 1997 rights or remedies; instead, the responses to those comments.

on how to incorporate environmental Commission based its decision on (A) General Comments justice in the NEPA review process, the NEPA, stating that [t]he only existing (B) Creation of New or Substantive NRC staff in the Office of Nuclear law conceivably pertinent here is Rights Material Safety and Safeguards (NMSS) NEPA, a statute that centers on (C) NEPA as a Basis for Considering and the Office of Nuclear Reactor environmental impacts. Id. at 102. Environmental Justice-Related Matters Regulation (NRR) each developed their This view was reiterated by the (D) Racial Motivation own environmental justice guidance Commission in Private Fuel Storage (E) Environmental Assessments with the CEQ guidance as the model. (PFS). See PFS (Independent Spent Fuel (F) Generic/Programmatic EISs See NUREG-1748, Environmental Storage Installation), CLI-02-20, 56 (G) Numeric Criteria NRC 147, 153-55 (2002); see also PFS, (H) Scoping/Public Participation Review Guidance for Licensing Actions Associated with NMSS Programs CLI-04-09, 59 NRC 120 (2004). In PFS, A. General Comments (August 22, 2003) (ADAMS Accession the Commission stated that environmental justice, as applied at the A.1 Comment: Some commenters No. ML032450279); NRR Office suggested that the policy statement Instruction, LIC-203, Rev. 1, NRC, means that the agency will make an effort under NEPA to become aware include a detailed explanation of how Procedural Guidance for Preparing the new policy on environment justice Environmental Assessments and of the demographic and economic circumstances of local communities differs from the current staff EJ guidance Considering Environmental Issues and NRC practice. Specifically, one where nuclear facilities are to be sited, (May 24, 2004) (ADAMS Accession No. commenter stated that the NRC should and take care to mitigate or avoid ML033550003). make explicit how the new policy special impacts attributable to the In 1998, the Commission, for the first would change its treatment of EJ-related special character of the community. Id.

time in an adjudicatory licensing issues. Another commenter suggested at 156.

proceeding, analyzed the E.O. in The purpose of this policy statement that the statement provide examples Louisiana Energy Services (LES). See is to present a comprehensive statement detailing how NEPA would be Louisiana Energy Services (Claiborne of the Commissions policy on the implemented and interpreted under the Enrichment Center), CLI-98-3, 47 NRC treatment of environmental justice new policy statement.

77 (1998). In LES, the applicant was matters in NRC regulatory and licensing Another commenter recommended seeking an NRC license to construct and actions. The policy statement that the NRC develop a comprehensive operate a privately owned uranium incorporates past Commission decisions statement that includes an analysis of enrichment facility on 70 acres between in LES and PFS, staff environmental the impacts and effects of the proposed two African American communities, guidance, as well as Federal case law on action on low-income and minority Center Springs and Forest Grove. See id. environmental justice. The proposed populations by building on the past ten at 83. One of the impacts of constructing policy statement, Policy Statement on years of EJ policy development and and operating the facility entailed the Treatment of Environmental Justice guidance. Another commenter closing and relocating a parish road Matters in NRC Regulatory and recommended that the NRC review staff bisecting the proposed enrichment Licensing Actions, was published in guidance documents prepared by the facility site. See id. The intervenors the Federal Register on November 5, NRC and other Federal agencies on contention alleged that the discussion of 2003 (68 FR 62642). After an extension, implementing the E.O. and evaluate impacts in the applicants the public comment period expired on how well the guidance was carried out environmental report was inadequate February 5, 2004. This final policy and how effective the guidance has because it failed to fully assess the statement reflects the pertinent been. After identifying the effective disproportionate socioeconomic impacts comments received on the published portions, the comment stated that the draft policy statement. NRC should revise and assemble the 1 Environmental Justice, Guidance Under the guidance into a single, integrated policy National Environmental Policy Act, Council on II. Summary of Public Comments and that, at a minimum, contains language Environmental Quality (Dec. 10, 1997). The NRC Responses to Comments provided comments on the CEQs draft and revised from CEQs Environmental Justice:

draft versions of this document to both CEQ and the Twenty-nine organizations and Guidance Under the National Office of Management and Budget. Letter to Mr. individuals submitted written Environmental Policy Act.

Bradley M. Campbell, Associate Director for Toxics and Environmental Quality, Council on comments on the draft policy statement. Response: This policy statement is Environmental Quality from Hugh L. Thompson, Jr., The commenters represented a variety intended to be a Commission-approved Deputy Executive Director for Regulatory Programs, of interests. Comments were received general clarification of the U.S. NRC, April 25, 1997; letter to Mr. Zach Church, from individuals, Federal and State Commissions position on the treatment Office of Management and Budget, from Hugh L.

Thompson, Jr., Deputy Executive Director for agencies, and citizen, environmental, of environmental justice issues in NRC Nuclear Materials Safety, Safeguards, and and industry groups. The comments regulatory and licensing actions. This Operations Support, May 10, 1996. addressed a wide range of issues statement reaffirms the Commissions VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

52042 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices commitment to pursue and address on minority communities has been Department of Energys (DOEs) final environmental justice policy goals done. environmental impact statement (EIS) through the NEPA process by (1) Response: This policy statement does on the High-Level Waste Repository at Consolidating the Commissions views not disregard staff guidance. Rather, it Yucca Mountain.

as set forth in the LES and PFS seeks to clarify the Commissions Response: Given that the policy decisions, (2) combining NRR and environmental justice policy, by, among statement is not site-specific, it is NMSS guidance to provide an agency other things, combining NRR and NMSS premature for the Commission to prospective, and (3) addressing current guidance to provide a consolidated address the specific comment on the case law relevant to environmental agency view. NRR and NMSS staff Yucca Mountain High-Level Waste justice matters as litigated in the federal guidance relating to NEPA and, Repository. With that said, the Nuclear court system. In preparing the policy specifically, environmental justice will Waste Policy Act of 1982 (NWPA) statement, the Commission also continue to be used and will be requires the NRC to adopt, to the consulted guidance from other Federal updated, if necessary, to reflect the extent practicable, the final EIS agencies and CEQ, regarding the direction of this final policy statement. prepared by DOE in connection with the treatment of environmental justice. Matters not addressed in the policy issuance of a construction authorization This policy statement does not change statement but discussed in the staff and license for the Yucca Mountain how the agency will implement or guidance will remain unchanged. High-Level Waste Repository. See 42 interpret NEPA, except to clarify certain A.4 Comment: Some commenters U.S.C. 10134(f)(4). Commission procedures that correctly identify and urged that the draft statement be regulations that set forth the standards adequately weigh significant adverse rejected because it retreats from or used to determine whether it is environmental impacts on low-income undermines the goals and intent of E.O. practicable for the Commission to adopt and minority populations by assessing 12898. Other commenters stated that the the final EIS published by DOE are at 10 impacts peculiar to those communities. policy statement de-emphasizes EJ CFR 51.109. These standards will not be At bottom, this policy statement does matters in NRC licensing proceedings. impacted by the publication of this not represent a change in the overall Another similar letter commented that policy statement.

practice of the Commission with regard the NRC has declared E.O. 12898 to be A.7 Comment: Several commenters irrelevant by limiting EJ matters to the to EJ-related matters but a clarification expressed concern that the policy NEPA context. The commenter noted that the NRC will address EJ matters in statement does not address mitigation of that it was the shortcomings and its normal NEPA approach. disproportionate environmental impacts ambiguity of NEPA that made the E.O.

A.2 Comment: One commenter falling on low-income and minority necessary in the first place.

stated that the draft policy statement Response: The Commission is populations.

narrows the scope of E.O. 12898 and committed to the general goals set forth Response: Current NRR and NMSS NEPA with respect to environmental in E.O. 12898, and strives to meet those staff guidance adequately addresses the justice issues. This commenter asserts goals as part of its NEPA review process. issue of mitigation, making clarification that the policy statement, which While the policy statement clarifies that in the policy statement unnecessary. For provides that * *

• EJ issues are only EJ per se is not a litigable issue in our example, with regard to environmental considered when and to the extent proceedings, it does not de-emphasize justice matters, Appendix C of NUREG-required by NEPA, limits agency the importance of adequately weighing 1748 states that [i]f there are significant discretionary authority in considering EJ or mitigating the effects of a proposed impacts to the minority or low-income issues and, thus, should be changed to action on low-income and minority population, it is then necessary to look conform to the E.O. urging that agencies communities by assessing impacts at mitigative measures. The reviewer address environmental justice to the peculiar to those communities. Rather, should determine and discuss if there greatest extent practicable and the policy statement sets forth the are any mitigative measures that could permitted by law * *

• and to the CEQ criteria for admissible contentions in be taken to reduce the impact. To the Guidance. this area within the NEPA context and extent practicable, mitigation measures Response: As an independent agency, consistent with the Commissions should reflect the needs and preferences the Commission is not required to regulations in 10 CFR Part 2. of the affected minority and low-income follow the E.O. or to adopt CEQ A.5 Comment: Several commenters populations. NUREG-1748, C-6, 7.

guidelines. The E.O. itself states that it stated that the policy appears to support A.8 Comment: Several comments does not change an agencys obligations the Nuclear Energy Institutes position dealt with the cumulative impacts on or expand its authority. The on environmental justice as submitted certain populations and regions.

Commissions intent in drafting an EJ to the Commission in December 2002. Specifically, in the context of the policy statement is simply to ensure that Response: While the Commission proposed Yucca Mountain High-Level EJ is a part of the normal and standard agreed with some aspects of NEIs Waste Repository, it was stated that NEPA process in NRC regulatory and position as set forth in its December Nevada has and continues to bear the licensing actions. 2002 letter to the agency, there were a burden of nuclear projects for the A.3 Comment: One commenter number of positions that the nation.

stated that the draft policy statement Commission did not agree with as Response: The Commission considers disregards NRC staff guidance. reflected in this policy statement. This cumulative impacts when preparing an Specifically, the commenter stated that policy statement reflects the position of environmental impact statement for a the policy overlooks NRRs guidance for the Commission after considering all of proposed action. With regard to ensuring that public participation by the comments received in response to environmental justice matters, affected minority and low-income the draft policy statement. applicants are asked to provide NRC communities is encouraged. Also, the A.6 Comment: One commenter staff with a description of cumulative commenter stated that the policy stated that it would be helpful to impacts to low-income and minority statement overlooks steps developed by understand the policy statements populations and socioeconomic NRC staff to ensure that an adequate impact on the Commissions future resources, if applicable, in their NEPA review of environmental impacts decision whether to adopt the environmental report (ER) submitted VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52043 with any license application. NUREG- CLI-04-03, 59 NRC 10, 15 (2004). Once and are consistent with the E.O. and 1748, 6.4.11. the admissibility determination is made CEQ guidelines. Both NMSS and NRR With regard to the proposed Yucca by the Commission, it will provide the have issued guidance that provides for Mountain High-Level Waste Repository, appropriate guidance on the litigation of public participation in identifying the NWPA requires the NRC to adopt, admissible EJ contentions, if any. Id. minority and low-income populations to the extent practicable, the final EIS This policy statement will serve as through the EIS scoping process (i.e.

prepared by DOE in connection with the general guidance on EJ issues and the interviews, public comment, local issuance of a construction authorization Commission will determine whether meetings, and general outreach efforts).

and license for the repository. See 42 there is a need for the Commission to The scoping meetings are announced in U.S.C. 10134(f)(4). The NRC will follow provide additional guidance on a case- the Federal Register, on the NRC Web the NWPA direction. by-case basis. site, in local or regional newspapers, A.9 Comment: One commenter A.11 Comment: Several commenters posters around the meeting location, suggested that where the NRC has never recommended that the policy statement and/or on local radio and television analyzed EJ issues at a particular include the four goals established in the stations at least one week before the facility, the NRC should supplement the E.O. and found in the NRCs 1995 public meeting. The NRC requests the previous EIS rather than preparing an Environmental Justice Strategy (ADAMS assistance of tribal, church, and EA or relying on categorical exclusions. Accession No. ML003756575 (March 24, community leaders to disseminate the Response: Pursuant to 10 CFR 51.92, 1995)), and that the policy statement information to potentially affected the NRC staff will prepare a supplement indicate how the Commission will groups. Participants in the scoping to an EIS where the proposed action has achieve those goals. The goals are: (a) process are provided an opportunity to not been taken if (1) There are Integration of EJ into NRCs NEPA submit oral comments at the scoping substantial changes in the proposed activities, (b) continuing senior meeting and written comments through action that are relevant to management involvement in EJ reviews, a project e-mail address or by regular environmental concerns or (2) there are (c) openness and clarity, and (d) seeking mail.

significant new circumstances or and welcoming public participation. A.12 Comment: One comment letter information relevant to environmental Response: The policy statement, as stated that the policy statement should concerns and bearing on the proposed well as NRR and NMSS staff guidance, clearly articulate that it covers and will action or its impacts. 10 CFR 51.92(a); reflects the four environmental justice look at potential impacts from all see also 10 CFR 51.72(a). Additionally, goals set out above. operations related to a proposed action.

the staff may supplement an EIS when, (a) Consistent with the goals set forth Specifically, the commenter stated that in its opinion, preparation of the in the E.O. and in the Commissions with regard to Nye County, the location supplement will further the purposes of 1995 EJ Strategy, the NRC considers of the proposed high-level waste NEPA. 10 CFR 51.92(b). The disproportionately high and adverse repository at Yucca Mountain, an Commission will continue to implement impacts on low-income and minority environmental analysis should include these provisions of its environmental populations as part of its NEPA review. transportation of spent nuclear fuel and protection regulations and will address (b) It is NRCs policy that senior high-level waste to the proposed EJ matters consistent with the existing managers review and concur on every repository.

NEPA review process and NRCs EIS prepared by the staff. See NUREG- Response: The policy statement implementing regulations in Part 51. 1748, 4.5. Thus, there is and will be indicates that the EJ analysis should be A.10 Comment: One commenter continuing senior management limited to the impacts associated with recommended that in order to provide involvement in NRCs EJ reviews. In the proposed action (i.e., the greater certainty and discipline in addition, changes or updates made to communities in the vicinity of the licensing proceedings in which EJ staff environmental guidance are proposed action). This policy statement

[issues are] raised, the NRC should reviewed and concurred on by senior does not address site-specific EJ establish, through adjudicatory agency officials. concerns. The NWPA requires the NRC proceedings or rulemaking, binding (c) The NRCs NEPA process for to adopt, to the extent practicable, the guidance for the litigation of EJ issues. preparation of an environmental impact final EIS prepared by DOE in The commenter also encouraged that the statement mandates openness and connection with the issuance of a Commission either have prompt clarity and provides for, among other construction authorization and license interlocutory review of admitted EJ things, public scoping meetings. The for the Yucca Mountain High-Level contentions or determine the NRC usually holds at least one public Waste Repository. See 42 U.S.C.

admissibility of proffered EJ meeting in the vicinity of the proposed 10134(f)(4). The NRC will follow the contentions. action involving an EIS. The NRC also NWPA direction.

Response: The Commission in LES, holds a poster session or open house CLI-98-3, 47 NRC 77 (1998), and in prior to the meeting to provide an B. Creation of New or Substantive Rights PFS, CLI-02-20, 56 NRC 147, provided opportunity for one-on-one discussions B.1 Comment: One comment guidance on the admissibility of EJ with interested parties. Finally, the NRC asserted that the Commissions failure to contentions under NEPA. Recently, in a posts publically available information conduct an EJ evaluation in an EIS or Notice of Hearing and Commission regarding proposed actions on the noncompliance in any other way with Order on a new LES application, the agency Web site and in press releases, the E.O. as part of the Commissions Commissions guidance for this meeting notices, Federal Register NEPA responsibility would not be proceeding stated that the Commission notices, and will mail certain grounds for the NRC to deny the itself, rather than the Atomic Safety and documents, such as the scoping proposed licensing action.

Licensing Board, will make the summary report, to interested members Response: It is the Commissions determination as to whether contentions of the public. position that the E.O. itself does not associated with environmental justice (d) The scoping process identified in establish new substantive or procedural matters will be admitted in [the] 10 CFR 51.29 and public participation requirements applicable to NRC proceeding. Louisiana Energy Services, in commenting on the draft EIS are a regulatory or licensing activities. The L.P. (National Enrichment Facility), fundamental part of the NEPA process E.O. itself is very clear on this point. As VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

52044 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices a procedural statute, however, NEPA Response: Although independent Response: As stated in the requires Federal agencies to take a hard agencies, such as the Commission, are Presidential Memorandum, both look at the environmental impacts of not required to follow the E.O., the environmental and civil rights statutes major Federal actions significantly Commission has stated that it will provide many opportunities to address affecting the quality of the human endeavor to carry out the measures set environmental hazards in minority environment. Therefore, an EIS must forth in the E.O. The policy statement communities and low-income appropriately assess disproportionately seeks to make clear that, in following communities. Memorandum for Heads high and adverse impacts of a proposed the spirit of the E.O., the Commissions of All Departments and Agencies (Feb.

action that fall heavily on a particular intent is to comply with NEPA. 11, 1994) (Presidential Memorandum).

community. B.4 Comment: Several commenters In the licensing context, the NRCs focus B.2 Comment: While agreeing with stated that the policy statement is on full disclosure, as required by the Commission that E.O. 12898 does contradicts former Chairman Selins NEPA, of the environmental impacts not create any new rights or a private acknowledgment that the E.O. applies to associated with a proposed action cause of action, one commenter asserted the NRCs requirements under NEPA. * *

• and [to] take care to mitigate or that this was not relevant in the context Specifically, the commenters stated that avoid special impacts attributable to the of the NRCs licensing proceedings the E.O. intended to expand the scope special character of the community.

because there is no requirement that a of the NRCs NEPA requirements to PFS, CLI-02-20, 56 NRC at 156.

contention or area of concern be include EJ-related matters in licensing In the context of providing financial grounded in a statutorily created right. proceedings, not limit that scope. assistance, the Commissions The commenter stated that neither the Response: Consistent with regulations in 10 CFR Part 4 prohibit Atomic Energy Act of 1954, as amended Commission practice and the E.O., EJ discrimination with respect to race, (AEA) nor the NRC regulations mandate issues are addressed in the context of color, national origin, or sex in any that the admission of contentions be the agencys NEPA responsibilities. EJ- program or activity receiving Federal based on a particular statutorily created related matters properly within the financial assistance from the NRC.

right or cause of action. NEPA context are limited only to the C.3 Comment: Several commenters Response: The Commissions extent that any EJ contentions are stated that the E.O. is more than a mere regulations setting forth the standards valid NEPA contentions and are set out reminder to the agencies of their for admissible contentions are found at and supported as required by 10 CFR preexisting EJ obligations. One 10 CFR 2.309. This section provides that Part 2 of the Commissions regulations. commenter stated that by handling EJ for each contention, the request for a The E.O. neither expanded nor limited matters as part of the Commissions hearing or petition to intervene must, the scope of the agencys NEPA normal and traditional processes the among other things, (1) Provide a responsibilities or the way NRC is ignoring the E.O.s direction to specific statement of the issue of law or environmental issues may be dealt with Federal agencies to be proactive in fact to be raised or controverted, (2) in agency proceedings. identifying and considering EJ matters provide a brief explanation of the basis in NEPA and other activities. Other C. NEPA as the Basis for Considering for the contention, (3) demonstrate that commenters stated that the E.O. was an Environmental Justice-Related Matters the issue raised in the contention is admission of failure in addressing EJ within the scope of the proceeding, and C.1 Comment: One commenter matters and was intended to rectify the (4) demonstrate that the issue raised in stated that the AEA provides a basis for failure by codifying EJ analysis into the contention is material to the the NRC to carry out the goals of E.O. agency activities.

findings the NRC must make to support 12898. The commenter noted that the Response: The NRC strives to the action that is involved in the AEA provides that the development of proactively identify and consider proceeding. See 10 CFR 2.309(f). In the atomic energy shall be regulated so as to environmental justice issues in context of EJ-related matters, the only protect the health and safety of the pertinent agency licensing and possible basis for an admissible public. Given the broad goals of the E.O. regulatory actions primarily by fulfilling contention is NEPA, which statutorily and the specific mandate of the AEA to its NEPA responsibilities for such mandates a hard look at the significant protect public health and safety, the actions. As part of NEPAs original environmental impacts of a proposed commenter stated that the AEA presents mandate, agencies are required to look major Federal action. Because E.O. a clear opportunity for the NRC to at the socioeconomic impacts that have 12898 does not create any new rights, it address environmental hazards in low- a nexus to the physical environment.

cannot provide a legal basis for income and minority communities. See 40 CFR 1508.8. It is the contentions to be litigated in NRC Response: The AEA does not give the Commissions view that the obligation licensing proceedings. Commission the authority to consider to consider and assess B.3 Comment: Though noting that EJ-related issues in NRC licensing and disproportionately high and adverse 6-609 of the E.O. expressly states that regulatory proceedings. Apart from the impacts on low-income and minority no new rights are created by the E.O., mandate set forth in NEPA, the populations as part of its NEPA review a commenter stated that at least two Commission is limited to the was not created by the E.O. Rather, it is administrative appeals tribunals (the consideration of radiological health and the Commissions view that the E.O.

Environmental Appeals Board and the safety and common defense and reminded agencies that such an analysis Interior Board of Land Appeals) have security. See New Hampshire v. Atomic is appropriate in its normal and reviewed decisions for compliance with Energy Commission, 406 F.2d 170, 175, traditional NEPA review process.

the E.O. as a matter of policy under 176 (1st Cir. 1969). While the E.O. directs Federal existing statutory authority. The C.2 Comment: One letter agencies to * *

• develop an agency-commenter suggested that the policy commented that NEPA is a procedural wide environmental justice strategy statement provide an explanation of statute that does not require a particular * * *, it did not suggest that agencies how and under what standards issues of outcome; by contrast, E.O. 12898 codify EJ analysis into their regulations.

environmental justice are presently promotes the implementation of Federal The E.O. directed Federal agencies to reviewed by the NRC within the context policies and duties in a * *

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Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52045 and permitted by law] part of its asserted that expertise in racial be necessary to provide the basis for mission by identifying and addressing, discrimination is not necessary to concluding that there are no significant as appropriate, disproportionately high determine that scientific criteria are not environmental impacts. With regard to and adverse human health or being applied objectively. EAs, the policy statement clarifies the environmental effects of its programs, Response: NEPA is not the previously undefined special policies, and activities on minority appropriate context in which to assess circumstances and notes that, in the populations and low-income racial motivation and fairness or equity case of most EAs, there are little or no populations. * *

• Executive Order issues. As stated by the Commission in offsite impacts and, therefore, an EJ No. 12898, 59 FR at 7629 (Section 1- LES, were NEPA construed broadly to review is generally not necessary to 101). In fact, the Presidential require a full examination of every make a FONSI.

Memorandum specifically discussed conceivable aspect of federally licensed An EJ review in an EA is anticipated implementing the E.O. within the projects, available resources may be by the Commission, where, as described bounds of already existing law, such as spread so thin that agencies are unable in one of the comments, a proposed NEPA. See Presidential Memorandum at adequately to pursue protection of the action has clear potential for offsite

p. 1. In LES, CLI-98-3, 47 NRC 77, the physical environment and natural impacts to minority and low-income Commission stated that [t]he only resources. LES, CLI-98-3, 47 NRC 77, communities. In these circumstances an existing law conceivably pertinent [to 102-03, quoting Metropolitan Edison EJ analysis will be done during the the NRCs fulfillment of the E.O.] is Co., 460 U.S. 766, 776 (1983). preparation of an EA regardless of NEPA, a statute that centers on whether an EJ analysis had been E. Environmental Assessments environmental impacts. LES, 47 NRC at addressed in an earlier NEPA analysis 102. E.1 Comment: Several commenters for the site. However, an EJ analysis will stated that the policy of not doing an EJ not be performed during an EA if the D. Racial Motivation review for an environmental assessment proposed action does not create a clear D.1 Comment: A number of (EA) where a Finding of No Significant potential for offsite impacts even in commenters requested that the Impact (FONSI) is expected appears to circumstances where EJ was not Commission reject the policy statement absolve the NRC from carrying out the addressed in an earlier NEPA analysis because it does not resolve the issue of type of proactive reviews E.O. 12898 for the site.

racial discrimination in the siting of sought to promote. One letter expressed E.2. Comment: One commenter nuclear reactors and other facilities the concern that the NRC will use EAs requested that the final policy statement licensed by the NRC. Several comments and FONSIs to avoid an EJ analysis. clarify that the only circumstance stated that the policy statement should This commenter stated that if the NRC warranting an EJ review in the EA/

pay special attention to the nuclear has not done an EJ review in a site- FONSI context is where a clear potential industrys history of siting facilities in specific EIS, then the NRC has no basis for offsite impacts from the proposed minority and disadvantaged for determining whether a specific action exists.

communities with special attention to action has unique EJ impacts on a Response: As discussed above and in facilities sited on ancient ancestral minority or low-income community. the draft policy statement, the homelands of Native Americans. Another commenter stated that absent Commission does not foresee Response: The Commission continues [an EJ] review, it is possible that circumstances warranting an EJ review to recognize that racial discrimination significant impacts to minorities and except where there is a clear potential is a persistent and enduring problem in low-income populations could be for offsite impacts.

American society. LES, CLI-98-3, 47 missed. E.3 Comment: One commenter NRC 77, 101 (1998). However, as A separate commenter, however, suggests that the NRC should solicit explained in the draft policy statement, agreed with the draft policy statement public comment with respect to EJ EJ issues are only considered when and that unless special circumstances exist, during the EA process to determine to the extent required by NEPA. NEPA an EJ review is unnecessary in an EA whether there are cumulative impacts is an environmental statute and a broad- where a FONSI is expected. that might be significant on the subject ranging inquiry into allegations of racial Nevertheless, this commenter suggested population.

discrimination goes beyond the scope of that the policy statement set forth with Response: As a general matter, public NEPAs mandate to adequately identify specificity the special circumstances comments are not sought during the and weigh significant adverse that will warrant [an EJ] review. preparation of an EA. During an EA, the environmental impacts. Another commenter stated that the NRC might seek public comment only in D.2 Comment; Several commenters special circumstances requiring the those special circumstances where there asserted that the statement that racial completion of an EJ review should is a clear potential for offsite impacts motivation and fairness or equity issues arise where [a] facility has a clear and there are some indications of are not cognizable under NEPA* *

• potential for off-site impacts to minority populations that might signal the represents a debasement of the express and low-income communities and these existence of an EJ issue.

intent and spirit of the E.O., which is an impacts have never been addressed in executive charge to take into any NEPA review. F. Generic/Programmatic EISs consideration the complex matrix of Response: The Commissions policy F.1 Comment: Several commenters race, class, and ethnic elements that does not eliminate the possibility of an addressed the consideration of EJ-might indicate discrimination against EJ review in the context of an EA. related matters in generic and low-income and minority populations. Rather, the policy limits such a review programmatic EISs. The commenters Several commenters stated that racial to those times when a FONSI may not view was that in some circumstances, bias is a legitimate consideration in the be appropriate because impacts that the consideration of EJ issues should be NEPA process because it relates to the would not otherwise be significant required when it is apparent that the objectivity of the decisionmaking could be significant due to the unique generic NRC regulatory program will process for evaluating environmental characteristics of low-income or have significant impacts on a number of impacts and choosing among minority communities. Under those similar low-income or minority alternatives. This commenter further special circumstances, an EJ review may communities.

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52046 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices Response: The Commission believes it case of the Yucca Mountain High-Level Response: The Commissions intent in is difficult to foresee or predict many Waste Repository. drafting the statement is to clarify that circumstances, if any, in which a Response: This policy statement does EJ is a normal, but not expansive, part meaningful NRC EJ analysis could be not address site-specific concerns. In of NEPA. The policy statement was not completed for a generic or programmatic accordance with NEPA, and consistent intended to address public participation EIS given the lack of site-specific with Commission practice, the more than the current 10 CFR Part 51 information. Nonetheless, the geographic area assessed for NEPA and staff environmental review Commissions policy will not preclude purposes will be commensurate with guidance does.

the possibility of an EJ analysis in the potential impact area of the III. Final Policy Statement programmatic or generic EISs if a proposed activity. The distances are meaningful review can be completed. guidelines used by NRR and NMSS to The Executive Order Does Not Create reflect the different activities regulated Any New or Substantive Requirements G. Numeric Criteria by those offices and are generally or Rights G.1 Comment: Several commenters consistent with the area of potential E.O. 12898 does not establish new disagreed with the numeric guidance impacts normally considered in NRC substantive or procedural requirements used to identify the geographic area in environmental and safety reviews. With applicable to NRC regulatory or which demographic information is regard to the high-level waste licensing activities. Section 6-609 of the sought and to identify potentially repository, the NWPA defines the E.O. explicitly states that the E.O. does affected low-income and minority agencys NEPA obligations. not create any new right or benefit. By communities. One commenter stated G.3 Comment: One commenter its terms, the E.O. is intended only to that the numeric limits are arbitrary in suggested that the policy statement improve the internal management of the that no objective basis for setting those should encourage or require the executive branch and is not intended to, limits and no legal basis for that practice selection of the methodology that nor does it create any right [or] benefit exist. The commenter further stated that identifies the most eligible census * *

• enforceable at law * *

• 59 FR the NRC must ensure that its NEPA blocks, not the least when identifying at 7632-33 (Section 6-609); see also evaluation properly identifies and low-income or minority populations. As Presidential Memorandum. Courts accounts for unique facts associated an example, the commenter stated that addressing EJ issues have uniformly with a particular community that may using Nevada as the metric, Nye County held that the E.O. does not create any contribute to a larger or lesser impact.

It should not matter whether that may have only one low-income block. new rights to judicial review. See, e.g.,

community falls within any of the This block would not include the Yucca Sur Contra La Contaminacion v. EPA, numeric criteria used by the NRC staff Mountain High-Level Waste Repository. 202 F.3d 443, 449-50 (1st Cir. 2000).

to evaluate EJ, but rather whether there However, the commenter noted that if Consequently, it is the Commissions is any particular community that, by its Nye County is used as a metric for position that the E.O. itself does not very nature, would suffer a greater or comparison, then most of the census provide a legal basis for contentions to lesser impact from a proposed Federal blocks in the county may be EJ eligible. be admitted and litigated in NRC action. This commenter further stated that this licensing proceedings. See LES, CLI Another commenter stated that the is a more reasonable approach because 3, 47 NRC 77; PFS, CLI-02-20, 56 NRC numeric guidance is misleading because rural areas generally are economically 147.

such guidance may cause staff to depressed. NEPA, Not the Executive Order, overlook significantly and uniquely Response: The NRC uses the Census Obligates the NRC To Consider impacted areas because they failed the block group as the geographic area for Environmental Justice-Related Issues quantitative test and were not examined evaluating census data because the U.S.

Census Bureau does not report The basis for admitting EJ contentions further. The same commenter also information on income for blocks, the in NRC licensing proceedings stems described such guidance as risky smaller geographic area. In accordance from the agencys NEPA obligations, because such numerical measures may with staff guidance, the impacted area and EJ-related contentions had been not encompass the range of factors used may be compared to either the State or admitted by an NRC Licensing Board to determine low-income or minority the County data. Furthermore, staff prior to the issuance of the E.O. in 1994.

status.

Response: The Commission analysis will be supplemented by the See LES, LBP-91-41, 34 NRC at 353. As recognizes that the numeric criteria are results of the EIS scoping review to clearly stated in 1-101 of the E.O., an guidancea starting pointfor staff to obtain additional information. This agencys EJ responsibilities are to be use when defining the geographic area should adequately identify the presence, achieved to the extent permitted by law.

for assessment and identifying low- if any, of a low-income or minority See 59 FR at 7629 (Section 1-101). The income and minority communities population in the impacted area. This accompanying Presidential within the geographic area. To the policy statement is not site-specific and Memorandum stated that each Federal extent possible, the staff will continue cannot address the specific comment agency shall analyze the environmental to use numeric guidance as a screening regarding the High-Level Waste effects * *

• of Federal actions, tool since such guidance should be Repository at Yucca Mountain. including effects on minority sufficient in most cases; however, the communities and low-income H. Scoping/Public Participation communities, when such analysis is staff analysis also includes the identification of EJ concerns during the H.1 Comment: Several commenters required by [NEPA]. Memorandum for scoping process. This is clearly assert that, in addition to the draft Heads of All Departments and Agencies articulated in the policy statement, as policy statements paragraph addressing (Feb. 11, 1994) (Presidential well as in existing staff guidance. See scoping, the final policy statement Memorandum).2 The E.O. simply serves NUREG-1748. should include a public participation 2 NEPA is the only available statute under which G.2 Comment: One commenter and outreach element in the the NRC can carry out the general goals of E.O.

stated the 50 miles normally used by decisionmaking process that conforms 12989. Although the Presidential Memorandum NRR should be applied by NMSS in the to the E.O., and CEQ and NRC policies. directed Federal agencies to ensure compliance VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices 52047 as an appropriate and timely reminder human environment that were not warrant not making a FONSI. In most to agencies to become aware of the considered because the impacts to the EAs, the Commission expects that there various demographic and economic community were not adequately will be little or no offsite impacts and, circumstances of local communities as evaluated. consequently, impacts would not occur part of any socioeconomic analysis that to people outside the facility. However, Racial Motivation Not Cognizable Under might be required by NEPA or their if there is a clear potential for significant NEPA authorizing statutes. See 40 CFR 1508.8 offsite impacts from the proposed action and 1508.14 (2003). Racial motivation and fairness or then an appropriate EJ review might be The Commission, in LES, has made it equity issues are not cognizable under needed to provide a basis for concluding clear that EJ issues are only considered NEPA, and though discussed in the that there are no unique impacts that when and to the extent required by E.O., their consideration would be would be significant. If the impacts are NEPA. The Commission held that the contrary to NEPA and the E.O.s limiting significant because of the uniqueness of disparate impact analysis within the language emphasizing that it creates no the communities, then a FONSI may not NEPA context is the tool for addressing new rights.3 The focus of any EJ be possible and mitigation or an EIS EJ issues and that the NRCs goal is to review should be on identifying and should be considered.

identify and adequately weigh or weighing disproportionately significant mitigate effects, on low-income and and adverse environmental impacts on Generic and Programmatic Impact minority communities by assessing minority and low-income populations Statements Do Not Include impacts peculiar to those communities. that may be different from the impacts Environmental Justice Analysis LES, CLI-98-3, 47 NRC at 100; see also, on the general population. It is not a An NRC EJ analysis should be limited PFS, CLI-02-20, 56 NRC at 156. At broad-ranging or even limited review of to the impacts associated with the bottom, for the NRC, EJ is a tool, within racial or economic discrimination. As proposed action (i.e., the communities the normal NEPA context, to identify the Commission explained in LES, an in the vicinity of the proposed action).

communities that might otherwise be inquiry into a license applicants EJ-related issues differ from site to site overlooked and identify impacts due to supposed discriminatory motives or acts and normally cannot be resolved their uniqueness as part of the NRCs would be far removed from NEPAs core generically. Consequently, EJ, as well as NEPA review process. interest: the physical environmentthe other socioeconomic issues, are As part of NEPAs mandate, agencies world around us. * *

• LES, CLI normally considered in site-specific are required to look at the 3, 47 NRC at 102, quoting Metropolitan EISs. Thus, due to the site-specific socioeconomic impacts that have a Edison Co. v. People Against Nuclear nature of an EJ analysis, EJ-related nexus to the physical environment. See Energy, 460 U.S. 766, 772 (1983). Thus, issues are usually not considered during 40 CFR 1508.8 and 1508.14. An the EJ evaluation should disclose the preparation of a generic or environmental-justice-related whether low-income or minority programmatic EIS. EJ assessments socioeconomic impact analysis is populations are disproportionately would be performed as necessary in the pertinent when there is a nexus to the impacted by the proposed action. underlying licensing action for each human or physical environment or if an particular facility.

Environmental Assessments Normally evaluation is necessary for an accurate Do Not Include Environmental Justice Need for Flexibility in NRCs cost-benefits analysis. See One Analysis Environmental Justice Analyses Thousand Friends of Iowa v. Mineta, 250 F. Supp. 2d 1064, 1072 (S.D. Iowa The agencys assessment of The procedural guidelines for EJ 2002) (the fact that numerous courts environmental justice-related matters review should allow for flexibility in the have held that an agencys failure to has been limited in the context of EAs. analysis to reflect the unique nature of expressly consider environmental Previously, the Commission has stated each review. It is important, however, justice does not create an independent that absent significant impacts, an that the NRC be consistent in its basis for judicial review forecloses any environmental justice review should not approach to this matter and develop argument that NEPA was designed to be considered for an EA where a clear, defined procedural guidance for protect socioeconomic interests alone). Finding of No Significant Impact identifying minority and low-income Therefore, EJ per se is not a litigable [FONSI] is issued unless special communities and assessing the impacts issue in NRC proceedings. The NRCs circumstances warrant the review. they may experience.

obligation is to assess the proposed SRM-MO21121A (Supplemental)

Affirmation Session: 1. SECY 1. Defining Geographic Area for action for significant impacts to the Assessment physical or human environment. Thus, 0179Final Rule: Material Control and admissible contentions in this area are Accounting Amendments, Dec. 3, 2002 One of the first steps the staff takes in those which allege, with the requisite (ADAMS Accession No. its EJ analysis is to identify the documentary basis and support as ML023370498).4 If there will be no geographic area for which it seeks to required by 10 CFR Part 2, that the significant impact as a result of the obtain demographic information. While proposed action will have significant proposed action, it follows that an EJ staff guidance states that the geographic adverse impacts on the physical or review would not be necessary. scale should be commensurate with the However, the agency must be mindful of potential impact area, NMSS and NRR with the nondiscrimination requirements of Title VI special circumstances that might have adopted numeric guidance based of the Civil Rights Act of 1964 for all Federally on activities that those offices regulate.

funded programs and activities that affect human 3 Such issues are more appropriately considered Under current NMSS procedures, the health or the environment, Title VI is inapplicable under Title VI of the Civil Rights Act. See LES, CLI-to the NRCs regulatory and licensing actions. 98-3, 47 NRC at 101-106. The NRC does not have potentially affected area is normally Likewise, while environmental justice matters may the authority to enforce Title VI in the NRC determined to be a radius of 0.6 mile be appropriately addressed during the permitting licensing process. from the center of the proposed site in process under other environmental statutes, 4 At least one court supports the view that EJ does urban areas, and four miles if the facility including the Resource Conservation and Recovery not need to be considered in an EA. See American Act, the Clean Water Act, and the Clean Air Act, Bus Assn v. Slater, 1999 U.S. Dist. LEXIS 20936, is located in a rural area. NRR normally the NRC does not have permitting authority under 9 Am. Disabilities Cas. (BNA) 1427 (D.C. Cir. Sept. uses a 50-mile radius that should be those statutes. 10, 1999). examined for licensing and regulatory VerDate jul<14>2003 13:22 Aug 23, 2004 Jkt 203001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\24AUN1.SGM 24AUN1

52048 Federal Register / Vol. 69, No. 163 / Tuesday, August 24, 2004 / Notices actions involving power reactors. These Guidance at 10-13. CEQ guidance low-income or minority communities distances reflect the different activities reminds us that the participation of that would be significant.

regulated by NRR and NMSS and are diverse groups in the scoping process is

• EJ-related issues normally are not consistent with the area of potential necessary for full consideration of the considered during the preparation of impacts normally considered in NRC potential environmental impacts of a generic or programmatic EISs. In environmental and safety reviews. proposed agency action and any general, EJ-related issues, if any, will However, these procedures provide that alternatives. By discussing and differ from site to site and, thus, do not the distances are guidelines and that the informing the public of the emerging lend themselves to generic resolutions.

geographic scale should be issues related to the proposed action, Consequently, EJ, as well as other commensurate with the potential impact agencies may reduce socioeconomic issues, are considered in area and should include a sample of the misunderstandings, build cooperative site-specific EISs.

surrounding population because the working relationships, educate the

• EJ per se is not a litigable issue in goal is to evaluate the communities, public and decisionmakers, and avoid NRC proceedings. Rather the NRCs neighborhoods, and areas that may be potential conflicts. CEQ Guidance at obligation is to assess the proposed disproportionately impacted. 12. Thus, it is expected that in addition action for significant impacts to the For the purposes of NEPA, the to reviewing available demographic physical or human environment.

Commission recognizes that numerical data, a scoping process will be utilized Contentions must be made in the NEPA distances are helpful to characterize the preceding the preparation of a draft EIS. context, must focus on compliance with likely extent of impacts for categories of This will assist the NRC in ensuring that NEPA, and must be adequately regulatory action. Thus, we are retaining minority and low-income communities, supported as required by 10 CFR Part 2 the current procedure as articulated by including transient populations, to be admitted for litigation.

NMSS and NRR in their respective affected by the proposed action are not

• The methods used to define the office guidance since this numeric overlooked in assessing the potential for geographic area for assessment and to guidance should be sufficient in most significant impacts unique to those identify low-income and minority cases to include all areas with an actual communities. communities should be clear, yet allow or potential for reasonably foreseeable for enough flexibility that communities physical, social, cultural, and health IV. Guidelines for Implementation of or transient populations that will bear impacts. NEPA as to Environmental Justice significant adverse effects are not Issues overlooked during the NEPA review.

2. Identifying Low-Income and Minority

• The legal basis for the NRC Therefore, in determining the Communities analyzing environmental impacts of a geographic area for assessment and in Once the impacted area is identified, proposed Federal action on minority or identifying minority and low-income potentially affected low-income and low-income communities is NEPA, not communities in the impacted area, minority communities should be Executive Order 12898. The E.O. standard distances and population identified. Under current NRC staff emphasized the importance of percentages should be used as guidance, guidance, a minority or low-income considering the NEPA provision for supplemented by the EIS scoping community is identified by comparing socioeconomic impacts. The NRC process, to determine the presence of a the percentage of the minority or low- considers and integrates what is referred minority or low-income population.

income population in the impacted area to as environmental justice matters in its

• The assessment of disparate to the percentage of the minority or low- NEPA assessment of particular licensing impacts is on minority and low-income income population in the County (or or regulatory actions. populations in general and not to the Parish) and the State. If the percentage

• In evaluating the human and vaguely defined, shifting subgroups in the impacted area significantly physical environment under NEPA, within that community. See PFS, CLI-exceeds that of the State or the County effects on low-income and minority 02-20, 56 NRC at 156.

percentage for either the minority or communities may only be apparent by

• In performing a NEPA analysis for low-income population then EJ will be considering factors peculiar to those an EIS, published demographic data, considered in greater detail. communities. Thus, the goal of an EJ community interviews and public input Significantly is defined by staff portion of the NEPA analysis is (1) To through well-noticed public scoping guidance to be 20 percentage points. identify and assess environmental meetings should be used in identifying Alternatively, if either the minority or effects on low-income and minority minority and low-income communities low-income population percentage in communities by assessing impacts that may be subject to adverse the impacted area exceeds 50 percent, EJ peculiar to those communities; and (2) environmental impacts.

matters are considered in greater detail. to identify significant impacts, if any, Dated at Rockville, Maryland, this 18th day As indicated above, numeric guidance is that will fall disproportionately on of August, 2004.

helpful; thus, the staff should continue minority and low-income communities. Annette Vietti-Cook, to use such guidance in identifying It is not a broad-ranging review of racial Secretary of the Commission.

minority and low-income communities. or economic discrimination. [FR Doc. 04-19305 Filed 8-23-04; 8:45 am]

The staffs analysis will be

• In developing an EA where a FONSI BILLING CODE 7590-01-P supplemented by the results of the EIS is expected it is not necessary to scoping review discussed below. undertake an EJ analysis unless special circumstances warrant the review. NUCLEAR REGULATORY

3. Scoping Special circumstances arise only where COMMISSION The NRC will emphasize scoping, the the proposed action has a clear potential process identified in 10 CFR 51.29, and for off-site impacts to minority and low- Sunshine Federal Register Notice public participation in those instances income communities associated with where an EIS will be prepared. Reliance the proposed action. In that case, an AGENCY HOLDING THE MEETING: Nuclear on traditional scoping is consistent with appropriate review may be needed to Regulartory Commission.

the E.O. and CEQ guidance. See E.O. provide a basis for concluding that there DATE: Weeks of August 23, 30, 12898, 59 FR at 7632 (Section 5-5); CEQ are no unique environmental impacts on September 6, 13, 20, 27, 2004.

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