ML20148G717
| ML20148G717 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/27/1997 |
| From: | Mcgarry J, Rowden M FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#297-18329 LBP-97-08, LBP-97-8, ML, NUDOCS 9706060099 | |
| Download: ML20148G717 (16) | |
Text
l8'329 DOCXETED UNITED STATES OF AMERICA USMRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 97 MAY 27 P4 :21 0FFICE OF EEi RE TARY 00CKETmG n SEiGICE BRANCH y
In the Matter of
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Docket No. 70-3070-ML
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LOUISIANA ENERGY SERVICES, LP. )
May 27,1997
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(Claiborne Enrichment Center)
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PETITION OF APPLICANT LOUISIANA ENERGY SERVICES FOR COMMISSION REVIEW OF LBP-97-8 Introduction Pursuant to 10 C.F.R. 2.786, Applicant Louisiana Energy Services, L.P. ("LES") petitions the Commission for review ofLBP-97-8, which is the Licensing Board's Final Initial Decision ("FID")
in this proceeding. The FID is the first decision by a Licensing Board in the area of" environmental justice" - that is, whether licensing the proposed Claiborne Enrichment Center (" CEC") would impose " disproportionately high and adverse human health or environmental effects" on minority and low-income populations. Ses Section 1-101 of Executive Order 12898,59 Fed. Reg. 7629 (1994).
Responding to Executive Order 12898, Chauman Selin informed the President by letter dated March 31,1994, that the NRC would consider environmental justice within "our effons to fulfill the requirernents of the National Enviromnental Policy Act [NEPA)." Ruling on the environmental judice contention of Citizens Against Nuclear Trash (" CANT"), the Licensing Board held that the Final Environmental Impact Statement ("FEIS") inadequately discussed (1) the impact on pedestrians of relocating a road adjacent to the proposed site that would add 0.38 mile to the 1.1 mib distance between the nearby African American communities of Forest Grove and Center Springs; and (2) the 9706060099 970527 PDR ADOCK 07003070 C
pop D903
i impact on local property values of siting the CEC near those two communities. Far from inflicting undesirable impacts on the nearby minority communities, LES would bring sorely needed jobs and tax revenues to this impoverished area. Of the 180 CEC operations personnel, LES would employ up to three-quarters from the Claiborne Parish and the surrounding area, some now receiving public assistance or otherwise unemployable. LeRoy at 23 fol. Tr. 840. A peak of four hundred construction jobs would also result. FEIS at p. 4-10. Further, LES will pay millions of dollars in
" school tax" to the Claiborne Parish School Board over the construction period, and app:oximately
$170 million in other tax revenues for the Parish - to the benefit of all Parish residents - over the CEC's 30-year operating license period. Idl at 22.
Indeed, the site selection responded directly to the Louisiana Enterprise Zone Act passed unanimously in 1981 with the leadership of then-State Senator (riow U.S. Representative) William Jefferson to encourage business and industrial development in economically disadvantaged areas.
LeRoy at 23 fol. Tr. 840. The Board ignored evidence of local support for the economic opportunities created by the CEC, including a black representative on the Claiborne Parish Police Jury from the Forest Grove community. Dorsey at 43-44 fol. Tr. 840, Tr. 926. Sgg also Limited Appearance of Emma Hilliard (the aforementioned representative) at Tr.17 (July 23,1994).
Much more significantly, however, the Licensing Board interpreted that portion of the Executive Order dealing with federal assistance programs as requiring the NRC to search the motives of those responsible for the CEC site selection, and to adjudicate whether racial animus played a part in that selection. The Licensing Board acknowledged that such an inquiry "is far afield" from the NRC's regulatory activities, and that the agency "has little experience or expertise" in this area. FID at 45. Nonetheless, the Licensing Board found that statistical evidence raised an " inference" that racial considerations played "some part"in the site selection process. FID at 46. On the other hand, l
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the Board admitted that the record would not support a determination of racial bias, iA, the Board lacked "the requisite degree of confidence" to find discrimination, with its "far too serious" and "potentially long-lasting consequences." Id. The Board therefore shied away from a definitive ruling on discrimination, resorting to further Staffinvestigation and potentially renewed hearings. Hence, LES must run yet another gauntlet of review and hearings to vindicate its actions by, as the Board acknowledged," proving a negative." Id at 46. Not only that, but LES, its afIlliates and employees, especially those involved in the site selection process, have now been tainted with, are appalled by, and categorically reject, the Board's inference of racial discrimination.
The Commission should review the FID because it presents significant agency issues of first j
impression (FID at 5) for which no Commission direction exists. Moreover, the Commission must be made aware, as this record demonstrates, that the LES enterprise and this " streamlined" licensing began in good faith and with the full knowledge, afler many years oflike plant operating experience in three other countries, that this low-risk facility could be built and operated safely, with benefits to the surrounding community. Now, the LES partners find themselves nearing the end of an excessively long, unpredictable and expensive process with Licensing Lloard decisions that are not only replete with error in applying Commission regulations and the record, but also stunningly ofTensive to the reputations of the partners and their afilliates. The Board's actions are tragically wrong and jeopardize continuation of the LES venture. LES has invested more than seven years and i
$30 million in this licensing only to find itself, in the end, branded a racist by inference. Unless the path to the licensing of a low-impact, Part 70 facility such as the CEC can be plotted within the bounds of an equitable and expeditious regulatory process, there seems little chance for this project or any like endeavor to attract or sustain the interest of owners and investors.
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1 Arnument L
The Commission Chairman stated that the NRC would look at licensing impacts under NEPA, not the applicant's alleged motives.
The Commission's focus under Section 1-101 of Executive Order 12898 is upon "disproponionately high and adverse human health or emironmental effects." As the Licensing Board held earlier, NEPA is an environmental disclosure statute, but "itself does not mandate particular results." Louisiana Enerav Services. L I1(Claiborne Enrichment Center), LBP-96-25,44 NRC 331, j
341, citing Robertson v. Methow Vallev Citizens Council. 490 U.S. 332,350 (1989). Thus, NEPA imposes no substantive emironmental obligations for federal agencies; rather, it demands that impacts be disclosed to the public and that agency actions be informed. Principally, an agency studies the environmentalimpacts of a proposed action by balancing NEPA-related costs and benefits, including those of reasonable alternatives, to strike an overall cost-benefit ratio.I' Section 1-101 of Executive Order 12898 added a new aspect to agency consideration of NEPA impacts by requiring agencies to identify and address " disproportionately high and adverse human health or emironmental effects ofits programs, policies, and activities on minority populations and low-income populations.
" Although the Executive Order did not apply to the NRC as an independent regulatory agency, Chairman Selin informed the President that the NRC would implement the Executive Order and the President's accompanying memorandum as part of the NRC's Ironically, the Board earlier excluded from its analysis the socioeconomic benef!ts of l'
l increased employment (LeRoy at 23-24 fol. Tr. 840), producing an annual benefit of l
approximately $21 million for the local economy, plus the aforementioned tax revenues. Ldm at 22. See LBP-96-25,44 NRC at 373-75. According to the Board, these benefits may not be considered at allin the NEPA cost-benefit balance, even though NRC regulatory guidance and federal case law are to the contrary. Se_e LES Brief on Review of LBP-96-25 at 16-17 (March 13,1997). In dramatic contrast, the Board has now made extensive findings on socioeconomic impacts in considering environmentaljustice. Seg FID at 60-89.
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" efforts to fulfill the requirements of[NEPA]." The Chairman pointedly characterized the NRC's voluntary compliance as related to its customary evaluation of "the social, economic, and health effects of our actions" through preparation of emironmental documents. This unmistakably referred to agency responsibilities to consider human health or environmental effects under Section 1-101 of i
the Executive Order.
P The Licensing Board, however, went far astray from an inquiry into disproportionately high and adverse human health or environmental effects by permitting intervenor CANT (over LES's strong objection) to challenge LES's motive in selecting the CEC site. The Board erroneously relied upon Section 2-2 of Executive Order 12898, which directs federal agencies not to discriminate 2
against persons benefitting from federal assistance programs ' Seg FID at 10-12. But NRC licensing is not a program of" federal assistance," and Section 2-2 is plainly irrelevant to Chairman Selin's declaration that the NRC would utilize its environmental review under NEPA to address disproportionately high and adverse /mman health or environmentaleffects on minorities. NRC StafT
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2' The text of Section 2-2 is clarified in the President's accompanying memorandum, which explains the statutory basis of this provision.
3 In accordance with Title VI of the Civil Rights Act of 1964 [42 U.S.C.
2000d,] each Federal agency shall ensure that all programs or activities receiving Federalfinancial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin. [ Emphasis added.]
Title VI applies only to recipients of federal funding. Association.A;ainst Discrimination in Employment v. City of Bridgeport, 647 F.2d 256,276 (2d Cir. 1981), cert denied,455 U.S.
988 (1982). Thus, Title VI does not apply to regulatory actions such as licensing.
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guidance on environmental justice plainly shows that the Staffis to evaluate environmental impacts, not racial motivation, under Executive Order 12898.3' 9
As LES demonstrates (Part II, be!ow), its site selection was racially neutral. Even so, exploring the motives of the applicant during its site selection process is alien to the principle that
"[a]s an independent regulatory agency, the NRC does not select sites or designs or participate with the applicant in selecting proposed sites or designs." S.e_e 49 Fed. Reg. 9352, 9353 (1984)
(Statements ofConsideration on 10 C.F.R. Part 51). To date, no aspect of NRC licensing has ever focused on the licensee's motives in evaluating alternative sites or other similar activity.
The inappropriateness of the Board's inquiry is apparent from its irresolution. The decision followed a full hearing, including cross-examination of LES's site selection personnel by CANT and the Board. Yet, havmg heard live witnesses explain themselves and having weighed the evidence for two years, the Board found itself unable "to reach any conclusion with a requisite degree of confidence." FID at 46. Instead, the Board left it to the NRC Staff to conduct "a complete and systematic examination of the entire process" (without the benefit of cross-examination of witnesses under oath) to determine the mental disposition of LES's employees. FID at 47. The Board was obviously ill at ease with an inquiry it correctly intuited to lie beyond its expertise, as is clear from disclaiming any intent to " impugn the integrity of the Applicant's witnesses." FID at 49.
Not only is the Board's venture into discriminatory motives beyond the intent of Executive l
Order 12898 and Chairman Selin's declaration, it also impermissibly transforms NEPA into a decision-I l
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Sge NMSS Policy & Procedures Letter 1-50, Rev.1 (April 1995) (quoting Section 1-101 of l
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Executive Order 12898 at p.1) (attached). Also, the NRC stated in a letter from Hugh L.
Thompson, Jr., Deputy Executive Director for Regulatory Programs, to Bradley M.
Campbell, Associate Director for Toxics and Enviromnental Protection, CEQ (April 25, 1997)(attached), that Title VI activities monitored by the NRC under Executive Order 12898
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"are limited to funding training and travel" (p. 3). See footnote 2, suora.
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making statute. Thus, the Board states that, if" racial coniiderations played a role in the site selection process," findings on disproportionately high and adverse health and environmental impacts would become " moot." FID at 60. This necessarily implies that the license would be denied. The Board's statement contradicts the settled principle that NEPA does not compel any particular agency action.
Robertson,490 U.S. at 350-51. Further, it undermines the long-recognized NEP A goal of assessing i
impacts with technical and scientific objectivity, which contrasts starkly with assessing motives -
i-l a subjective and speculative endeavor.4' I
l IL The CEC site selection process was racially neutral.
While inquiry into motive is beyond the reach of NEPA and Executive Order 12898, LES 1
L employed sound and universally accepted criteria for siting large industrial plants, as the NRC Staff agroxi. For example, siting the CEC at least five miles from institutions such as schools, hospitals, -
and nursing homes was intended to avoid competition for utility requirements, labor pools, and other i
operating factors that could affect the LES facility and its operations. Tr. 929-30. The " low i
i population" criterion minimized interference with the surrounding populace and increased the likelihood of finding a large single-owner site. Tr. 929 The NRC Staff recognized that both the
" distance from institutions" and " low population" criteria employed for the CEC are intended to create a buffer between the facility and the community for their mutual benefit. Tr. 1011-12. Also, the Staff"found no evidence of racial considerations in the site selection process." FEIS at p. 4-35.
Moreover, the Board's analytical framework is badly flawed, as it places on LES the burden
' 4' of proving that it did not discriminate. The Board admittedly (and unfairly) put LES "in the L
position of proving a negative." FID at 46. In an employment discrimination case, by comparison, theplaintF, not the defendant, bears the ultimate burden of persuasion "at all times" throughout the trial. St. Mary's Honor Center v. Hicks, 509 U.S. 502,511 (1993).
I Inasmuch as the Board found the record " simply inadequate" to find discrimination (FID at
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46), CANT failed to carry its ultimate burden of persuasion.
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T Hence, rational criteria adequately rebutted any inference of a racially tinged motive in selecting the CEC site purportedly created by the statistical evidence relied upon by the Licensing Board.
i Obviously, racially. neutral' siting criteria may lead to sparsely populated, economically I
underdeveloped rural areas. But to thwart business development in impoverished areas on a j
i supposition of racial bias is at odds with accepted principles ofindustrial siting, flies in the face of govemment incentives like Louisiana's Enterprise Zones in Claibome Parish, and will further distance
. low-income minority families from the mainstream of American commerce.
IIL The FEIS adequately evaluates whether l
- disproportionately high and adverse impacts exist.
L The Licensing Board considered a variety ofimpacts and found two that require additional NRC Staff evaluation under the Executive Order criteria of." disproportionately high and adverse" effects upon human health or the environment. The first involved a road connecting the Center Springs and Forest Grove communities, which lie 1.1 miles apart, separated by the CEC site. FID at 2-3.
Although Claiborne Parish has resolved to relocate the road (id at 73-74), LES has committed to relocate the road itself, if necessary. h!. at 75. Nonetheless, the Board found that I
adding 0.38 mile to the distance by relocating the road "for those who must regularly make the trip l
. 'on foot" might impose a significant impact on the "old, ill or otherwise infirm." Id at 77. The Board m
cited no evidence of old, ill or infirm pedestrians "who must regularly make the trip [from one
- community to another] on foot," but nevertheless posited that such persons, though able to walk over a mile, might be significantly affected by walking an additional 0.38 mile.
Second, the Board found that the FEIS did not allocate the cost of depressed property values l
or the benefit ofincreased property values that would result from the CEC. FID at 53. Relying solely i
- upon the unsupported opinion of Dr. Bullard, who has no credentials, much less expertise, in property 8
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i appraisal, the Board assumed that the two local communities must " fully absorb thefurther adverse impact of having a heavy industrial facility nearby making them even more undesirable." Ld at 84 (emphasis added). Yet, no expert testified that the CEC wouldhave an adverse impact upon local housing values.3' In fact, LES's experts, who have extensive experience in site selection and siting i
impacts, testified that property values increase in the immediate vicinity of major industrial facilities.
l Tr. 919. Thus, while the Board ordered the NRC Staff to evaluate " impacts from the CEC on property values in the communities of Forest Grove and Center Springs" (id at 88), the predicated m
assumption of depressed property values was never proven.
IV.
The Commission should also review the sweeping policy and programmatic ramifications of the Licensing Board's actions.
While the Licensing Board's rulings have created substantial inequity for LES, the Commission should also evaluate the sweeping ramifications of the Board's rulings upon the licensing of all facilities, including the CEC:
Executive Order 12898 does not " create any right,
. substantive or procedural, enforceabie at law," but is intended only to improve the " internal management of the executive branch."
- As such, compliance with Executive Order 12898 cannot be determined in a licensing proceeding because those hearmgs, by definition, arise under Section 189 of the Atomic Energy Act. Such hearings result in final agency orders which are " enforceable at law" and therefore create binding rights.
In the same vein, the Executive Order provides that it "shall not be construed to create any right to judicial review involving the compliance or non-compliance" of an agency. Yet, final orders of the NRC resulting from licensing proceedings are appealable to the Courts of Appeals under 28 U.S.C. Q2342(4) and 42 U.S.C. Q2239.
i NRC regulations provide in 10 C.F.R. 70.23 that a license may issue upon a determination "that an application meets the requirements of the (Atomic Energy Act] and of the regulations As the SER, FEIS and hearing decisions show, operation of the CEC will be safe anu 3'
environmentally benign, fully complying with all applicable regulations and permits for the protection of public health and safety and the environment. To infer that such a facility might depress local property values, without expert testimony, is unwarranted.
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of the Commission.
" Similar provisions exist for other licenses (eg,10 C.F.R. 50.57 l'
for power reactors).~ Nowhere do the NRC regulations state that compliance with Section 2-2 of Executive _ Order 12898 is a requirement for receiving a license. Yet, the Licensing i
Board clearly implied so. FID at 60. The Licensing Board thereby created a new licensing criterion.(iA, whether the applicant's site selection was motivated by race). This violates l
rulemaking and decision-making requirements of the Administrative Procedure Act.
The Licensing Board's obvious confusion as to the rules for creating a prima facie case of
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discrimination, shiflihg the burden of proof and placing the ultimate burden of persuasion, all i
strongly suggest that this is an area which the NRC's adjudicatory boards should not enter.
Indeed, the Commission has given no direction to do so.
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Conclusion
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Although obligations for achieving environmentaljustice are new and uncertain, the rules affording administrative justice are time-honored and clear. Simple justice compels review and reversal of the Licensing Board's unwarranted insinuations of racial bias. The Board acted far afield of its. limit'ed authority, created new rights and responsibilities without any direction from the I:
Commission and now, seven years after the site selection process, has publicly tarnished the names
. of LES, its afliliates and employees. The Commission should grant review and determine for itself that the proposed facility was not the product of a discriminatory site selection process, and would l
. not result in disproportionately high and adverse human health and environmental effects on minority
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and low-income populations.
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LOUISIANA ENERGY SERVICES, L.P.
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- g. Michael McGarg,III //
Marcus'A. Rowden~
.q Robert M. Rader Robert L. Draper FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON WINSTON & STRAWN ATTORNEYS FOR LOUISIANA ENERGY SERVICES, L.P.
l Dated at Washington, D.C.
this 27th day ofMay,1997 10
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UNITED STATES j
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NUCLEAR REGULATORY COMMISSION
,t wasniascions. O C 20046 400*
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Acn 1 21. 1995 4
N000RAfCUM T0:
19455 Division Directors i
70455 Branch Chiefs j
19155 Section Leaders FRON:
John J. Linehan, Program Management, Policy Development 7
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and Analysis Staff e-Sg f
Office of Nuclear Material Safety and Safeguards
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SUBJECT:
19155 POLICY & PROCEDURES LETTER l-50, Revision 1
- ENVIR0fetENTAL JUSTICE IN NEPA DOCUMENTS
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The attached 80bS Policy & Procedures (P&P) Letter 1-50, Revision 1 provides l
revised guidance for addressing the issue of environisental justice in NEPA reviews. Environmental justice wl'1 still be addressed in all Environmental l'
lapact Statements, but will only be considered for special case Environeesital i
Assessments. Management (Division Directors /8 ranch Chiefs) will make the determination that an environmental justice evaluation should be included in i
an Environmental Assessment. The agency will consider the Council on Environmental Quality (CEQ) guidance on environmental justice once it is j
issued, and this interia procedure will be revised as appropriate.
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Please review this revised procedure and disseelnate the information to the e
appropriate staff. This procedure is effective immediately and will remain in j
effect untti the CEQ guidelines are issued, i
l If you have any questions, please contact Merri Horn, FCSS, at 415-8178 1
l
Attachment:
80855 P&P Letter 1-50, Revision 1 cc:
C. Hehl, RI J. Stohr, Ril
- 5. Ebneter, RI!
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C. Pederson, Rill l
S. Collins, RIV i-l i
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NMSS Policy and Procedures Letter 1-50, Rev. 1 j
April 1995 ENVIRONMENTAL JUSTICE IN NEPA DOCUMENTS l
BACKGROUND:
On February 11, 1994, The President signed Executive Order 12898 i
" Federal Actions to Address Environmental Justice in Ninority l
Populations and 14w-Income Population" which directs all Federal agencies to develop strategies for considering environmental t
justice in their programs, policies, and activities.
Environmental justice is described in the Executive order as j
" identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its j
prograss, policies, and activities on minority populations and low-income populations."
Ine NRC will corsider the Council on Environmental Quality (CEQ) guidelines on how to tske
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environmental justice into account when preparing documents under j
the National Environmental Policy Act (NEPA) when they are issued.
This procedure provides interim guidance on where and i
how environmental justice is to be handled in NEPA documents.
When the CEQ guidelines are available, this interim procedure will be revised, as required.
POLICY:
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It is the policy of NMSS to address environmental justice in i
every Environmental Impact Statement (EIS) and every supplement j
to an EIS that is issued by NMSS.
Except in special cases, environmental jJstica need not be addressed for Environmental t
Assessments (EA) in which a Finding of No Significant Impa.:t (FONSI) is made.
For EAs with a FONSI determination, the staff concludes as part of its analysis that there will be no significant impa:ts f rom the action.
Therefore, there would be no disproportionately high and adverse offacts cr impacts on members of the public, including minority or low-income populations.
Generally, no environmental justice evaluation need be performed.
- However, there will be special cases where environmental justice reviews will be required for actions in which an EA/FONSI is prepared.
These cases may include requistory actions that have substantial public interes6, decommissioning cases involving onsite disposal in accordance with 10 CFR 20.2002, decommissioning /decontaminatien cases which allow residual radioactivity in excess of release criteria, or cases where environmental justice issues have been previously raised.
Nanagement (Division Director / Branch Chief level) will' decide on a case-by-case basis when special circumstances exist that require the staff to perform an environmental justice review for an EA.
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i The level of discussion on environmental justice will vary based t
on the circumstances of each action.
The actual determination of impacts will not change, the evaluation and analysis will'be i
expanded.
Environmental justice is a different manner of i
characterising the impacts; it does not identify new impacts to I
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analyse, although it dots involve the collection of additional
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data.
Each EIS or spec'al case EA should contain a section that i
fully describes the environmental justice review process; the j
length of the section depends on the circumstances.
Guidance is i
l provided below.
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l PROCEDURES:
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The first step in evaluating environmental justice potential is to obtain demographic data (census data) for the immediate site area and surrounding communities.
Data for the State, county, and town will also be necessary.
The demographic data should consist of income levels and minority breakaown.
For the purpose of this procedure, minority is defined as individuals classified by the U.S.
j Bureau of the Census as Negro / Black / African American, j
-Hispanic, Asian and Pacific Islander, American Indian, j
Eskimo, Aleut and other non-White persons.
Low-income is l
defined as being below the poverty level as defined by the i
U.S.
Census Bureau.
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Guidelines for determining the area for assessment are
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provided in the following discussion.
If the facility is located within the city limits, a 0.56 mi's radius (1 square i
sile) from the center of the site is probably sufficient for j
evaluation purposes; however, if the facility itself covers
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this much area, use a radius that would be equivalent to 0.5
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miles from the site.
If the facility is located outside the city limits or in a rural area a 4 mile radius (50 square miles) should be used.
(EPA is currently using 1 square i
mile and 50 square miles for their environmental justice 4
profiles; they use both for each site.)
These are i
guidelines, the geographic scale should be commensurate with l
l the potential impact area (i.e. if impacts are predicted out i
to 5 miles, a 5 mile radius should be used.)
The goal is to f
i evaluate the " communities", neighborhoods, or areas that may i
be disproportionately impacted.
You may want to consider an i
incremental radius (for example, if a 4 mile radius is l
chosen, also obtain data for the 1, 2, and 3 mile radii.)
The specific census data may be difficult to obtain; one possible source is the Geographic Information System.
Other
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sources include the applicant, local governments, state i
agencies, or local universities.
It is recommended that you j
utilite the Census Bureau's 10-year census for data on minorities and income level.
The Census Bureau's 10-year i
census data has poverty thresholds that should be used for l
determining tne number of economically stressed households.
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j Use the best available information.
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Use the demographic data to determine the percent minority representation and the percent of economically stressed j
i households.
These percentages should be calculated for the site area, town, county and State.
Describe the demographic data in the environmental justice section of the document.
The next step is to compare the area's percent of minority Population to the state and county percentage of minority i
population and to compere the area's percent economically j.
stressed households to the state percent of economically stressed households.
Note that the jurisdiction that the j
area percentage is compared to is dependent on the geographic' area used in describing the demographics.
(It is
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possible that the geographic area could cross county and state lines and this should be considered when making j
If the area percentage exceeds that of the comparisons.)
state or county percentage (or the comparison base used) for either minority population or economically stressed I
households by 20 percent, the site does have an i
environmental justice potential and environmental justice j
will have to be considered in greater detail.
Additionally, l
if either the minority or low-income population percentage exceeds 50 percent, environmental justice will have to be considered in greater detail.
If neither criterion is set, the site ooes not have an environmental justice potential i
and no further evaluation is necessary.
Document the conclusion in the environmental justice section.
l Once it is determined that a site does hsve a potential for 2.
an environmental justice concern, it is then necessary to j
l determine if thoce is a " disproportionately high and adverse" impact (human health or environmental effect) to the minority or low-income population surrounding the site.
l This does not involve determining if there are any new l
impacts; impacts of the proposed action are to be determined in the usual manner.
The impacts should be evaluated to l
determine those that affect these populations.
In considering the impacts to the populations, differential patterns of consumption of natural resources should be I
considered (i.e. differences in rates and/or pattern of j
fish, vegetable, water and/or wildlife consumption among groups defined by demographic factors such as socioeconomic l
status, race, ethnicity, and/or cultural attributes.)
The impacts to the local area surrounding the site should be summarized in the environmental justice. action.
It is not necessary to discuss the impacts at the same level of detail as in tr.e impact sections.
It is acceptable to briefly mention the impact and reference the section where it is discussed in greater detail.
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i The.next step is to determine if the impacts disproportionately impact the minority or low-income population.
Are the impacts greater for these populations?
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Are there any impacts experienced by;these populations that t
are not experienced by others?
In cases where the j
population is located next to the site, the impacts or potential for impact will likely be disproportionate for-l these populations. 'For instance, potential exposure to effluents may be greater to those living closest to the facility, noise and traffic may disrupt nearby residents to 3
a greater extent than those living far from the site, and the potential risk due to accidents may be greater for nearby residents.
If there are no disproportionate impacts, l
environmental. justice is not an issue, no further analysis would be needed.
Document the findings in the environmental justice section.
l Next, itsis necessary to determine if the impacts are high and adverse.
Another way of stating this is: are the f
impacts significant, unacceptable or above generally accepted noras such as regulatory limits or state and local statutes and ordi nces.
Each impact should be reviewed for j-significance.
If 4he statement can be made that none of the i
impacts are significant, then there are no disproportionate adverse'and high impacts on the minority or low-income populations.
Document the conclusion in the environmental justice section.
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If there are significant impacts to the minority or low-l income population, it is then necessary to look at
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aitigative measures and benefits.
Determine if there are any sitigotive measures that could be taken to reduce the j
impact.
Dsscuss the measures.
Discuss the benefits of the l
project to surrounding communitica.
Benefits to a specific l
group may be difficult to determine, particularly economic benefits.
The conclusion at this point is project specific.
The conclusion may be that there are disproportionately high l-and adverse impacts to minority and low-income populations; however, the sitigative measures and/or the benefits of a project outweigh the disproportionate impacts.
If this is l
not the case, the facts shculd be presented so that the j
ultimate decision maker can weigh all aspects in making the I
agency decision.
The Executive Order does not prohibit j
taking an action where there are disproportionate high and adverse impacts to minority and low-income populations.
I 4.
The results of an environmental pastice evaluation should be documented in the EIS or special case EA.
The document i
should contain a distinct section on environmental justice j
even if the demographics do not indicate a potential for an environmental justice concern.
If a site has alresay l
received an environmental-justica evaluation, it is i
i 4
1 I
l 1
acceptable to reference the previous evaluation and provide a summary of the findings and then add any new information that results from the proposed action.
For instanca, if 4
l environmental justice is included in.a license renewal, ic would not need to be cospletely readdressed for a license l
amendment.
Staff should look at tre demographics of a site early in tha review process..This will enable the staff to identify affected populations and try to include the affected population in the J
process.
If public meetings are held concerning a specific site, an attempt should be made to include any minority or low-income community in the meeting.,
Extra measures should be taken to ensure that minority and low-income populations are given the i
opportunity to participate.
This may include holding public aceting in the evenings or weekends or translating notices (and other documents) into a language other than English. If a j
representative (s) of the af fected population has been identified such.ns an officer of an otgarized local group or a community g
j leader, the individual (s) should receive notices of meetings and copies of Federal Register notices.
During scoping meetings for i
an EIS, NMSS staff will solicit input on environmental justice l
issues.
t i
f 1
5
~ _ _ _ _... _. - _.. _ _ _ _ _.
_ _.__ _ _ _ _ _. _.. _ _. _ _ __ _ _.m_.-_
FNY 19 '97 12: 17Pt1 P,2 UNITED STATBS OM 1
NUCLEAR REGULATORY COMMISSION i
5 wAsumatom. D.C. sessun hee
- April 25, 1997
- 14. Bradley M. Campbell Associate Director for Toxies and c
Environmorftel Prelection Council on Environmental Quality 722 Jackson Place, N.W.
l Washington, D.C. 20603 i
l
Dear Mr. Carnpbell:
i This letter forwards the U.S. Nuclear Regulatory Commission's (NECs) comments on the Council of Environmental Quality's (CEO) revised Draft Guidance for Considering Environmental Justice (EJ) under the National Environmental Policy Aot (NEFA), dated March 26,1997. These comments are in addition to those provided May 10,1998 to the Office of Management and Budget on the 1996 draft CEQ guidance (enclosed). A comparison of the 1996 draft CEO guidance against the March 20,1997 revised draft CEQ guidance indloates earlier NRC comments were not incorporated; thus, we submit them for reconsideration in addition, four major categories of change are noted and discussed individually, as follows.
l.
'The new draft CEO guidance directs agencies to consider sociceconomic impsets for Environmental Assessments (EAsl in some o,lrcumstances.
The NRC believes it would be more appropriate to reserve consideration of socioeco..amic issues until the identification of a significent environmentalimpset at the conclusion of the EA process. As a general matter of practice, NRC considers socioeconomic impacts irt most, if not all, of its Environmentallmpact Statements (EISs). Iri the EA context, however, it would be inappropriate to require tha NRC to Irst!ste the resource intensive consideration of socioeconomic issues before it has determined whether the proposed notion will have significent physical environmentalimpacts. We continue to believe EJ issues need not be routinely considered in those cases where a Finding of No significent Impact (FONSI) is medi Furthermore, routinely addressing EJ issues at the EA stage could have a considerable impact on egency workload and schedunne for agency actions.
A new section was added to the revised draft CEO guidance raising a specific II, requirement for egencies to supplement their procedures to address EJ issues in aircumstances where no Els or EA la prepared, The new language in Section 111.0 raises sencern. We agree it may be appropetate to consider EJ lsoues in cases where the Federal notien involves a significant erwironmental knpact but, due to a statutory exemption or some other reason, no EA or Els has been prepared. At the same time, however, we believe it makes little sense to ex' pend limited egency resources to ceneider EJ issues in cases where no significartt environmental impact Is involved and no EA or Els has been prepared. For example NRC and other egencies establish categorical exclusions by rulemaking for those actions that have been 4 7W!@l 3 l
_ _ _ _. -. _. _ _ _ _ _ ~ _ _ _ _ _ _. _ _ _ _.. - _ _ _ _ _ - _.. _ _ _ _ _ _.. _ _ _ _. _ _ _.
lf.
l 1
r1AY 19 '97 12810Pt1 P.3 4
j i'
i Mr. Bradley M. Campbell 2-demonstrated to have no algnificant environmental impact (e.g., NRC regulations et 10 CFR i
l 51.22). If an action is covered by a categorical smaluelon and thus, by definition, does not have a significant environmentalimpact, the proposed CEO guidance would appear, l
nevertheless, to require the consideration of EJ issues. The rationale fcr this requirement i
j is unclear. It would not appear that any purpose is served by directing agencies to l
consider the disproportionate effect on low income or minority groups of actione that have ne signrficent environmentalifnpect. As such, we believe consideration of EJ issues is not j
required, and we do not imend to consider EJ lesues, for those activities categorically l
i excluded from NEPA review.
This concem raises e more fundamentalissue reestding the relationship of NEPA's legal i
l requirements to the consideration of EJ issuse, The 50 indicates that ' Teach] Federal
'l i
j agency chan analyze the environmental effects, including human health, economic and j
seclat effects, of Federal actione, including effects on minority communities and low-Income communities, M.;n ~h andd la t=%d bw INEPA1 (emphasis addedi,* Given l
this language, we have assumed the intent of the 50 and the drott CEO guidance is to empheatre and clarify the existing legal obligation of agencies to consider EJ lasues under NEPA. The new provision in the draft CEQ guidance that would require egenoles to consider EJ leeues where no EA or Ele is prepared does not appear to be consistent with this intent. In addition, the new language in the guidance related to the consideration of EJ issues in the proporstion of EAs raises simNar conceme. A clearer emplenesion of the relationship between the NEPA's requirements and the draft guidance (as well as the EO) would significantly aid NRC and other egencies in incorporating EJ iesues into their NEPA process. In general, the NRC does not intend to consider EJ leeues where no significent environmentalimpact is involved, although it has in practles considered EJ lesues in EAs prepared ts support rules and regulations in We poet.
Agencies are requested to talte EJ ir to e%eunt whenever promulgating or revising regulations, policies, procedures and suidance under NEPA or any other statutory act.
NRC already seeks to incorporate EJ Into its regulator [ development proces's. For in recent amendments to the Commiselon's NEPA Implementing regulations specifically identify EJ es e potential laaue for consideration in the environmental review of license renewal oppilaations. Currently, under the interim NRC precedures, IJ is speelfloally considered in the EAs and ElSe prepared to support rules and regulations developed by -
NRC.
The addition of mandatory lengunga throughoutthe revloed draft guidence W.
' document appears to be intamagy inconsistent and is a departure from the generally flexible language contained in the 1996 draft.
Ttie revised draft CEQ guldence retains the wonfmg that individual agencies may supplement the guidance with more spoolfie procedures tailored to particular programs or motivities. and that agencies should be flexible in opplying the guldence and may consider its terms a point of departure rather then conclustve direction in applying the terms of the 50, The addition of terms such as "must consider" and "shell" in the draft CEO guidance n
l l
f%Y 19 '97 12: 19R1 i
i Mr. gredley M. Campbell 3
i esils into question the flexibility essociated with the use of CE0's document and also i
appears to make the document lntemelly inconsistent. It has been NRC's understanding l
that, as advertised by its title, CEQ's document will be only guidance for egenoles in Implernenting the EO. The addition of new 'mendatory' language throughout the document does not appest to be consistent with that purpose, in addition, es demonstrated by the following sucerpt from Bection Ill.B., the documerit now eends a confusing message on this issue:
- There is not a rote formula for how.erwironmental justice issues should be i
idernitied or sedressed. However, the following petnolples provide generei guidance.
To comply with the Executive Order, egenoies mug annsider the following issues... (emphasis addedt."
Provisions such as these in the CEO document that are held out to be " guidance" but also contain mandstory language witt osuse, at best, confusion for NRC and other agencies l
sttempting to implement it. Clarlfleetion of this matter is necessary to old agencies in their trnplemervtstion of the draft CEQ guidance.
i I
Although independent agencies, such as the NRC, were only requested to compey with the f
EO, NRC has endeevored to carry out the measures set forth in the EO and scoompanying memorandum in the manner h believes to be appropriate.' The NRC's 1996 EJ etretegy is
~
based on five principles of implementation and emphasisen NRC is committed to giving l
consideration to the CEO guidelines on how to integrete EJ inte egenov decisionmaking j
under NEPA. The five prinolples Inalude: the integration of EJ into NRC's NEPA activities; l
the continuetten of senior NRC management involvemem to provide guidance in this area:
spenness with the public and clarity of agency positiones sommunication and the -
welcoming of public participation with stakeholders, including minority and lovNncome earnmunitiss: and the continuation of review and monitoring of Title Vlastivttles of the
(
j-CMI Rights Act of 19g4, whleh are 9mhed to funding training and travel under Section 274 i
of the Atomic Energy Act el 1964, se amended. The NRC wul sentinue to oonsider EJ issues es currently outlined in our strategy and implementation guidance documents.
If you have any questions, I sen be reached at (301) 4151713 2
Binestely, N
Thor es Emeoutivo for Regulosory Programe 4
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i DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
'97 MY 27 P4 :21 0FFICE OF SECRETARY
)
DOCKEilNG 41RV!CE In the Matter of
)
Docket No. 70-3070-ML BRAHCH
)
LOUISIANA ENERGY SERVICES, L.P.
)
May 27,1997
)
(Claiborne Enrichment Center)
)
)
CERTIFICATE OF SER.yICE I hereby certify that copies of" Petition of Applicant Louisiana Energy Services for Commission Review of LBP-97-8" were served upon the following, as indicated, this 27th day of May,1997:
Administrative Judge Administrative Judge Thomas S. Moore, Chairman **
Richard F. Cole **
Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 (2 copies) i Administrative Judge Office of the Secretary **
i Frederick J. Shon" U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclerr Regulatory Attention: Chief, Rulemakings and 1
Commission Adjudications StafT Washington, D.C. 20555 (Original plus 2 copies)
Office of Commission Appellate Eugene Holler, Esq.*
l Adjudication *
- Oflice of the General Counsel U.S Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission i
Washington, D.C. 20555 Washington, D.C. 20555
[
4 Ronald Wascom, Deputy Assistant Joseph DiStefano, Esq. (U.S. Mail only)
Secretary
- Quinn, Racusin & Gazzola Office of Air Quality &
1401 H Street, N.W.
Radiation Protection Suite 510 P.O. Box 82135 Washington, D.C. 20005 Baton Rouge, LA 70884-2135 I
Robert G. Morgan - WC26B Marcus A. Rowden (U.S. Mail only)
Licensing Manager (U.S. Mail only)
Fried, Frank, Harris, Shriver &
Duke Engineering & Services, Jacobsen i
Inc.
I101 Pennsylvania Avenue, N.W.
400 South Tryon Street Suite 900 South 4
Charlotte, NC 28201-1004 Washington, D.C. 20004 Diane Curran
- Nathalie Walker
- l Harmon, Curran, Gallagher &
Sierra Club Legal Defense Fund i
Spielberg 400 Magazine St.
j 2001 S Street, N.W.
Suite 401 l
Suite 430 New Orleans, LA 70130 Washington, D.C. 20009-1125 Adjudicatory File **
Roland J. Jensen (U.S. Mail only)
/.
Atomic Safety and Licensing Louisiana Energy Services, L.P.
Board Panel 2600 Virginia Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 608 I
Washington, D.C. 20555 Washington D.C. 20037 Thomas J. Henderson, Esq. (U.S. Mail only)
David S. Bailey, Esq.
Lawyers' Commmittee for Civil Rights Under Law 1450 G Street, N.W.
Suite 400 Washington, D.C. 20555 LOUISIANA ENERGY SERVICES. L.P.
Robert M. Rader WINSTON & STRAWN, ATTCRNEY FOR LOUISIANA ENERGY SERVICES, L.P.
Via messenger Via facsimile and first-class mail