ML20210H846
| ML20210H846 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 08/07/1997 |
| From: | Bishop R, Silberg J NUCLEAR ENERGY INSTITUTE (FORMERLY NUCLEAR MGMT &, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#397-18437 LBP-97-08, LBP-97-8, ML, NUDOCS 9708140213 | |
| Download: ML20210H846 (27) | |
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- /JK31 00CKETED (JSNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'97 ALG II A9:12 0FFICE OF SECRETARY Before the Commission DOCKETlHG A SERVfCE BRANCH
)
In the Matter of
)
)
Docket No.-7NU-Mt.
70-3# W l
LOUISIANA ENERGY SERVICES, L.P. )
)
(Special Nuclear Material (Claiborne Enrichment Center)
)
License) l
)
NEI AMICUS BRIEF ON REVIEW OF LICENSING BOARD DECISION LBP 97 8 CONCERNING ENVIRONMENTAL. JUSTICE NUCLEAR ENERGY INSTITUTE SHAW, PflTMAN, POTTS &
1776 i Street, N.W.
TROWBRIDGE Washington, D.C. 20006 2300 N Street, N.W.
202 739 8139 Washington, D.C. 20037 (202) 663 8000 Robert W. Bishop jay E. Silberg Vice President and General Counsel David R. Lewis Paul A.Gaukler Counsel for Licensees August 8,1997 9708140213 97000','
PDR ADOCK 07003070 M# 3 C
PDR 1
C TABLE OF CONTENTS hM TA B L E O F CO N T E NTS........................................................... i l
TA B LE OF A UTHORITIES.................................................... ii i
l I N T R O D U CTI O N............................................................... 1 STATEM ENT O F TH E C A S E................................................... 3 A.
Background.....................................................3 B.
NEl's Interest And Concerns................................... 4 ARGUMENT.....................................................................7 1.
Executive Order 12898 Does Not Apply to NRC Licensing Of Facilities Or Activities Under The Atomic Energy Act................. 7 11.
Executive Order 12898 Does Not Create New Requirements Applicable To NRC Licensing Of Facilities Or Activities.................. 9 111.
Executive Order 12898 Does Not Require Or Authorize Investigation Or Review Of Siting Criteria For Racial Bias................ 11 A.
Section 2 2 Of The Executive Order Does Not Authorize Or Require Review of Siting Criteria for Racial Bias........... 11 B.
Section 1101 Of The Executive Order Does Authorize Or Require Review OF Siting Criteria For Facial Basis......... 13 IV.
NEPA Does Not Require Or Authorize Review Of Disproportion ate impacts................................................ 16 V.
The Board's imposition Of Additional Licensing Standards Violates The Administrative Procedure Act And Due Process............. 18 s
C O N C LU S I O N................................................................. 19 i
j
e i
TARI F OF AUTHORITIFS CASE 5 Eage phen v. INS, 95 F.3d 801 (9t h Cir.1996)................................................ 10 Chrnier Corp. v. Brown, 441 U.S. 281 (1979)............................................ 9 G12mm P2eltaging Inst. v. Regan,737 F.2d 1083 (D.C. Cir.), cert. denied, 469 U.S.1035 (1984)........................................ 14 i
Gottfried v. FCC,655 F.2d 297 (D.C. Cir.1981),
cert. de nied, 4 54 U.S.114 4 (1982).................................................... 12 INS v. Cardor.2 Fontesa, 4 80 U.S. 421 (1987)............................................ 17 Jacobson v. Delta Airlinen. Inc.,742 F.2d 1202 (9th Cir.1984), cert, dismissed, 4 71 U.S. 106 2 (19 8 5)................................................................. 12 Metronolitan Edhon Co. v. Peonle Aeminst Nuclear Energv. 4 60 U.S. 76'6 (19 8'3)................................................. 14 Meyer v. Bush, 981 F.2d 1288 (D.C. Cir.1992).........................
............8 Michigan v. Thoman, 805 F.2d 176 (6th Cir.1986)............................... ;........ 8 Motor Vehicle Mfrs. Ass'n v. St2te Farm Mut. Inc.,
4 6 3 U. S. 2 9 (19 8 3).................................................................... 8 N2tional F2mily Plannine & Reoroductive Health Ass'n v. Suliivan, 979'F.2d 227 (D.C. Cir.1992)...................................... 18 New England Coalition on Nuclear Pollution v. NRC, 7 27 F. 2d 1 127 (D.C. Cir. 19 8 4)........................................................ 8 Ner River Valley Greens v. DOT. Civ, A. No. 951203 R.
1996 U.S. Dist. LEXIS 16547 (W.D.W. Oct. 1, 199 6).......................... 8, 16, 17 Paralyrrd Veterans of America v. Civil Aeronautics Bd.,
752 F.2d 694 (D.C. Cir.1985), rev'd 2nd remanded, 4 77 U.S. 5 9 7 (19 8 6).................................................................. 12 United Slates Dep't Health & Human Servs. v. Federal L2bor Relations Auth.,
8 4 4 F.2d 10 8 7 (4 t h Ci r. 19 8 8)........................................................ 10 il n--w s--
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t United Staten v. McGuilkin,78 F.3d 105 (3d Cir.),
cert. de n ied, 1 17 S. C t. 8 9 (199 6)...................................................... 9 l
Wat t v. A l uk m ; 4 51 U.S. 2 59 (19 81)...................................................... 17 J
Yourcuown Sheet & Tube Co. v. Sawver,343 U.S.
i 5 7 9 ( 19 5 2).........................................................................., 10 ADMINISTRATIVE DECISIONS i
- Duke Power Comniny (Perkins Nuclear Station, Units 1, 2 & 3), LBP.80 9,11 N.R.C. 310 (1980)............................ _.......... 5_
Pennsylvania Power & I i ht Company (Susquehanna g
Steam Electric Station, Units 1 & 2),
LB P.9 6, 9 N. R.C. 291 (1979)......................................................... 6 Public Serdce Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
'L LB P.77 5 2, 6 N.R.C. 2 9 4 (1977)...................................................... 6 Rochester Gu & Flectric Corp. (Sterling Power Project, Nuclear Unit No.1),
L B P.77 53, 6 N.R.C. 3 50 (1977)....................................................... 6 Tennence Wiley Authority (Yellow Creek Nuclear Plant, Units 1..& 2), LBP.78 7, 7 N.R.C. 215 (1978)......................................... 5 t
e REGULATIONS i
r 10 C. F. R. $ 1.1 1 (a)....................................................................... 15 10 C.F.!'
'O.57........................................................................18 10 C. F. R. P a rt 51........................................................................ 14 10 C. F. R. $ 7 0. 2 3 :........................................................................ 18 40 C.F.R. Part 1500.....................................................................14 56 Fed. Reg. 23, 310 (May 21,1991).................................................. 3,18 ill
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- STATUTES -
National Environmental Policy Act of 1969,42 U.S.C.
$$ 4321 et seq.-....................................................................Lpassim 196_4 Civil Rights Act, Title VI,42 U.S.C.
- $. 2 000d (199 4).................................................................... 1 1 12 L
' MISCFI I ANEOUS l
Executive Order 12898,3 C.F.R. 5 859, Federal i4 Actions to Address Environmentaljustice in l-Minority Populations and Low.Incore.e Populations, 30 Weekly Comp. Pres. Doc. 279 (Feb.14,1994)................................. passim
)
l:
CEQ, Draft Guidance for Considering Environmental
, Justice Under the National Environmental r
Policy Act, March 2 6, 19 9 7.......................................................... 1 5 EPA, Office of Federal Activities, Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses, Review Draft, J ul y 12, 199 6......................................................................... 15 NRC, Interim NRR Procedure for Environmental-
- Justice Reviews (March 16, 199 5)......,,........................................... 15 NRC, NMSS Policy and Procedures Letter 150, Rev.1, Environmental Justice in NEPA Documents -
- (A p ril 2, 199 5)....................................................... ;............... 15
. NRC, Regulatory Guide 4.9, Preparation of Environmental ~
Reports for Commercial Uranium Facilities.......................................... 6 amawaw iv
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
Before The Commission
)
In the Matter of
)
)
Docket No. 70-3070-ML LOUISIANA ENERGY SERVICES, L.P. )
)
(Special Nuclear Material (Claiborne Enrichment Center)
)
Liceme)
)
NEI AMICUS BRIEF ON REVIEW OF LICENSING BOARD DECISION LBP 97 8 CONCERNING ENVIRONMENTAL _lUSTICE r
INTRODUCTION As permitted by the Commission's Order of June 30,1997, CLI 97 8, the Nuclear En-ergy Institute ("NEl")u submits this amicus brief on review of the Atomic Safety and Licens-ing Board's (the " Board") Final Initial Decision, LBP 97-8,44 N.R.C. _ (1997). NEl supports the position of both Louisiana Energy Services ("LES") and the Nuclear Regulatory Commis-sion ("NRC") Staff (as expressed in the Staff's Petition for Review) and requests the Commis-sion to reverse the Board's decision because of significant legal errors which, if allowed to stand, could severely affect the interests of the nuclear energy industry.
The Board's Decision contains serious errors of law with respect to both the applica-tion and the interpretation of the Executive Order 12898. The Board erroneously applies the Executive Order to licensing activities contrary to its terms. Moreover, throughout its 2
NE! is the organization responsible for establishing unified nuclear industry policy on matters af-fecting the nuclear energy industry, including regulatory aspects of generic operation and technical is-sues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect / engineering firms, fuel fabricators, materials li-censees, and other organizations and individuals involved in the nuclear er.ergy industry.
decision, the Board draws on its erroneous interpretation of the Executive Order to impose new licenring standards devoid of any statutory authority or basis. It both misinterprets and i
misapplies the Executive Order to require the NRC to investigate an applicant's siting criteria for racial bias or motivation. The Executive Order does not - and legally cannot - create any new enforceable substantive or procedural law. Therefore, the lloard's decision must be re-versed as a matter of law.
[
Moreover, the Final Initial Decision is simply bad policy and, if left to stand, could ad-versely impact other NRC licensing actions beyond the LES proceeding. The preventing ra-cial discrimination is a laudable goal, but the NRC (an agency which the Board acknowledges l
has no expertise in this area)is not the appropriate agency to undertake that task. For the Commission to attempt to determine whether there was any " racial motivation" in choosing a site will likely deter the development of new nuclear facilities. This is particularly true where (as in this case) there is no applicable legal standard and racial bias is solely inferred because the site selected - using objective engineering, technical and environmental criteria - has a high minority and low income population. Like LES, future applicants need the ability to apply objective siting criteria, even if that may result in locating facilities in remote, rural locations and avoiding institutions such as schools, hospitals, and nursing homes. Applicants also need to be able to site such facilities in communities that are willing to accept and support them, even if these are communities with greater economic need. Few applicants are likely to pro-ceed with the development of new facilities if the application of such legitimate siting criteria may result in unfounded inquisitions into their legitimate site selection processes, amid charges of " environmental racism."
2
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STATEMENT OF THE CASE A.
Background
in January 1991 - over six years ago - LES filed its application for a license to con-struct and operate the Claiborne Enrichment Facility (" CEC"). The application was filed pur-suant to section 193 of the Atomic Energy Act,42 U.S.C. $ 2242, which had been enacted the previous year to simplify the licensing process for uranium enrichment facilities. In May 1991, the Commission issued a notice of hearing and order identifying the regulatory stan-dards by which LES's application is to be judged. 56 Fed. Reg. 23,310 (May 21,1991).
On December, 19,1991, the Board granted a petition to intervene and request for hear-ing filed by Citizens Against Nuclear Trash (" CANT") and admitted several contentions,in-cluding CANT's contention J.9 at issue here. Con ention J.9 alleged that the impacts and costs and benefits of the CEC had not been adequately analyzed under NEPA in that: (1) the proposed plant will have a negative economic and sociological impact on the minority com-munities of Forest Grove and Center Springs;2 (2) LES's Environmental Report (".ER") does not reflect consideration of the placement of the plant in a rural African American commu-nity; and (3) the ER does not demonstrate any attempts to avoid or mitigate the disparate im-pact of the proposed plant on this minority community. See LBP-97-8 at.6-7.
On February 11,1994, President Clinton issued Executive Order 12898,3 C.F.R.
$ 859, entitled " Federal Actions to Address EnvironmentalJustice in Minority Populations and Low Income Populations" (" Executive Order" or "EO"). The President also issued an ac-companying " Memorandum on EnvironmentalJustice... for the Heads of All Departments The major governmental subdivisions in the proximity of the CEC are Homer (pop. 4152) and Haynesville (pop. 3000) located approximately 5 and 10 miles from the CEC site respectively. Sec LBP 97-8 at 2,51 n.17 (all page citations to the Board's decision are to the slip opinion); Final Environ-mental Impact Statement ("FEIS") for the CEC at Figures 2.7 and 3.25. Forest Grove and Center Springs are unincorporated areas with no elected officials or governmental structures.
3
4 and Agencies," 30 Weekly Comp Pres. Doc. 279 (Feb.14,1994) (" President's hiemorandum" or "hiemorandum on Environmental Justice"). In a hiarch 31,1994 letter to President Clin-ton, the then NRC Chairman " advise (d)" the President that the NRC would " endeavor to carry out the measures set forth in Executive Order 12893 and the accompanying hiemoran-dum."
Although LES's application and CANT's contention predated the Executive Order by several years, the Board nevertheless decided that it should " ensure agency compliance with I
the President's environmental justice directive" which the Board held was applicable to NRC licensing actions. LBP 97 8 at 14. Pursuant to its interpretation of the Executive Order, the Board first considered whether LES's siting criteria were racially biased. In a thirty five page discussion (see LBP-97-8 at 23-59) which fails even to mention NEF \\, the sole context in which CANT raised its contention, the Board held that, "in order to comply with the Presi-dent's nondiscrimination directive in Executive Order 12898," a " thorough investigation must be conducted by the (NRC] Staff to determine whether racial discrimination played a role in the CEC site selection process." LBP-97 8 at 44-45,57.- In a separate and distinct section of the Final Initial Decision, the Board also considered whether under section 1 101 of the Execu-tive Order the LES's ER and NRC's FEIS had adequately identified and addressed whether the CEC would have a disproportionately high and adverse health or environmental effect on minority and low income populations. Id. at 60-88.
B.
NEI's Interest And Concerns For the reasons stated in the Argument section of this brief, NEI believes that the Board's decision contains serious errors of law and that the decision must be reversed by the Commission as a matter of law. In addition, wholly apart from the legal considerations, NEI is concerned with the policy implications of the Board's decision. Notwithstanding the 4
Board's conclusion that LES had used objective engineering, technical and environmental site selection criteria, it concluded that there was "significant probative evidence... that racial considerations played a part in the [ CEC] site selection process." LBP 97-8 at 56 57. The Board's decision casts a serious cloud over future license applications. If the use of such legiti-mate criteria may be determined to be "significant probative evidence" of racial bias, potential license applicants may be dissuaded from pursuing new nuclear facilities.
Specifically, the Board concluded that statistical evidence developed by CANT's expert showing that minority population increased as the number of sites were narrowed by LES's screening process "very strongly suggests that racial considerations played a part in the site se-l lection process." LBP-97-8 at 47-48. However, the screening process and criteria applied by LES, as reflected in section 7 of the ER, are objective, racially neutral procedures, which are based on legitimate technical, safety and environmental considerations used to site nuclear and other industrial facilities. For example, avoiding " urban areas" with "high land costs," or
{
" flood prone" areas, or areas not " manufacturing oriented" are legitimate siting criteria. LES ER at p. 7.1-6. As part of its NEPA reviews, site selection screening procedures and criteria such as those employed by LES here have been found acceptable.M To conclude, as the Board did, that the high minority or low income population of the final site chosen "very strongly suggests" that racial bias motivated selection of the site improperly transforms such legitimate, accepted siting criteria into supposed tools of racism.
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2 Ste., g, Duke Power Company (Perkins Nuclear Station, Units 1,2, & 3), LBP-80-9,11 NRC 310,314-16 (1980); Tennessee Wiley Authority ( Yellow Creek Nuclear Plant, Units 1 & 2), LBP-78-7, 7 N.R.C. 215,228-29 (1978) ("A balance of engineering, economic, and environmental factors is taken into consideration in determining preferred sites within the desired area for a particular facility. Fur-ther screening includes an examination of factors such as access, flooding conditions, topography, seis-mology, and availability of cooling water. The Suff found and the Board concurs that this is a reasonable approach for preliminary site screening.") (citations omitted).
5
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4 Similarly, the Board distorts the use of legitimate, racially neutral siting criteria by finding that LES's application of the low population criterion and the avoidance of institu-j tions such as schools, hospitals, and nursing homes, is evidence of racial bias. The NRC's Regulatory Guide (" Reg. Guide") 4.9, which provides guidance on the " Preparation of Envi-ronmental Reports for Commercial Uranium Enrichment Facilities," reflects that areas oflow population are more desirable for the location of such facilities. Reg. Guide at 4.94 t, Table 1, Item 3.2. The desirability of siting industrial facilities in areas oflow population is even more true with respect to locating nudcar power plants, for which the NRC imposes stringent emergency planning requirements for the surrounding area.E Similarly, both the Regulatory Guide 4.9 and NRC precedent reflect the desirability of minimizing impacts on recreational areas, such as Lake Claiborne.E Avoiding or minimizing the impact on institutions, such as schools. hospitals and nursing homes can hardly be considered an improper siting criterion.'
In sum, it is unreasonable and inappropriate to characterize the use of legitimate, NRC approved siting criteria as "significant probative evidence" of racial bias or to infer such bias from the t;ltimate selection of a site with a high minority a low income population.
Sec.cy,,, Rochester Gas & Efe ric Coro: (Sterling Power Prohct, Nuclear Unit No.1) LBP-77 53, E
6 N.R.C. 350,413 (1977) ("[I)t has been a long-standing policy of the Commission to encourage siting in areas of relatively low population density in consideration of the Commission's responsibility re-lated to reactor safety. In the Staff's opinion, Applicants' low population consideration in the site se-lection process was proper The Board concurs.") (citations omitted).
E See. e4, Reg. Guide 4.9-24 Table 1, Item 3.3; PuNic Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), LBP-77-52,6 NRC 294,331 (1977) (applicant routed transmission line corridors "away from recreation... areas" so as to minimize their " visual impact").
E See,eg, Pennsylvania Power & Light Comoany (Susquehanna Steam Electric Station, Units 1 &
2), LBP-79-6,9 N.R.C. 307,309 (1979) ("[H]ospital, nursing homes, and schools... may require spe-cial emergency planning arrangements.".... "[T]here are no schools, hospitals, nursing and/or conva-lescent homes, mental institutions, prisons and/or jails or military bases within the low population zone ")
6
There is simply no factual or legal basis for the Board's conclusion. In its brief, NEl will focus on the severe legal deficiencies in the Board's decision set forth in the Argument belo
'2 1
ARGUMENT I,
Executive Order 12898 Does Not Apply To NRC Licensing Of Facilities Or Activities Under The Atomic Energy Act The Board erroneously applied the Executive Order to the licensing of the CEC facil-ity despite the express terms of the Order that it was solely intended for the internal manage.
l ment of executive branch agencies and creates no new substantive or procedural law. The i
j Board's holdings that it "must ensure compliance with the President's environmental justice directive" and that "a thorough Staff investigation of the site selection process is needed to comply with... Executive Order 12898" directly conflict with section 6-609 of the Order which states:
This order is intended only to imnrove the internal manwement of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or proce.
dural, enforceable at las or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving compliance or noncompliance of the United States, its agencies, its officers, or any other person with this order.
EO 12398,5 6-609 (emphasis added).
The courts have found executive orders containing language virtually identical to that contained in section 6-609 to reflect " clear and unequivocal intent" that the executive intended E While NEI has chosen to focu[on the legal and policy issues significant t$ the industry, this focus does not signify any agreement by NEI with the Board's factual findings on the CEC siting process.
- As already discussed, NEI believes that the siting criteria used by LES are racially neutral procedures based on legitimate engineering, technical and environmental considerations and that such procedures should not be branded as racially biased simply because the community where the facility is ultimately located has a large minority or low income population.
7
e merely to " improve the management of the Federal government" and did not intend to create substantive rights " subject to judicial review." See, e.g., Michigan v. Thom21,805 F.2d 176, 187 (6th Cir.1986). As stated by the court in Mever v. Bush. 981 F.2d 1288,1297 (D.C. Cir.
1992), "it is doubtful" whether such executive orders "[have) any legal significance." Indeed, the only court to consider the legal significance of Executive Order 12898 found that section 6-609 expressly denies any private right of action and therefore the Order does not create any enforceable rights or obligations. See New River V211ev Greens v. DOT., Civ. A. 951203-R, l
1996 U.S. Dist. LEXIS 16547 (W.D. Va. Oct.1,1996).E i
- Finally, the Board purportedly sought to address section 6-609 of the Executive Order by declaring that "no pany to this proceeding has a remedv with regard to the manner in which the agency carries out its commitment to the President to implement Executive Order
-12898." LBP 97 8 at 14 (emphasis added). That conclusion notwithstanding, the Board then held that the NRC Staff's alleged failure to comply with the Executive Order were grounds for refusing to issue a license for the CEC facility. This holding creates an irreconcilable con.
flict with the Executive Order becaus< aensing proceedings, such as this case, are subject to judicial review. 42 U.S.C. $ 2239. Well-established principles of judicial review both author-ize and require a court to review the basis of an agency's decision. Sec.c.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins.,463 U.S. 29,48-49 (1983); New Englind Coalition on Nu-clear Pollution v. NRC. 727 F.2d 1127,1131 (D.C. Cir.1984) (courts "must affirm In addition to the$ lear and unequivocal intent" expressed in section 6-6[9 that the Executive Or-
-E der creates no substantive rights and is only intended to address " internal management," nowhere does the Executive Order suggest its applicability to licensing proceedings. Section 1101 of the Executive Order states that it is applicable to " programs, policies, and activities," which is amplified in section
' 1 103 to " programs, policies, planning and public participation processes, enforcement, and/or rule-makings." The Executive Order could have easily been drafted to include licensing ifit were intended to be applicable to licensing activities. It is a well established precept of interpretation that when a statute or contract specifies coverage of certain activities or things, an intent to exclude all others from its operation may be inferred. Sec c.g., United States v. McGui&in,78 F.3d 105,108 (3d Cir.), cen.
denied,117 S. Ct. 89 (1996).
8
[ agency) action on the basis of the reasons assigned or not at all"). Therefore, the Executive Order can not bc applied to NRC licensing proceedings, for if so applied, it would become subject to judicial review, contrary to the express provision of section 6-609 of the Order.
In sum, in keeping with its express intent, the Executive Order cannot be applied be-yond the internal management of the agency or as the basis of any licensing decision. Ac-cordingly, the Board erred in applying the Executive Order to the licensing of the CEC.
II..
Executive Order 12898 Does Not Create New Requirements Applicable To NRC-Licensing Of Facilities Or Activities l
In a similar vein, the Board erroneously interpreted the Executive Order as providing i
new requirements that license applicants must meet and that the NRC is obligated to evaluate L
in licensing nuclear facilities.E The Board erred because the Executive Order does not - and legally could not - create new substantive or procedural law. The Order lacks legal effect be-cause (1) it does not rest on a statutory basis, and (2) its very terms provides that it creates no new law.
It is well established that executive orders lacking a statute ry basis or some other con-gressional delegation of authority cannot create enforceable rights or obligations. The Su-preme Court held in Chrysler Corp. v. Brown. 441 U.S. 281 (1979) that executive orders must be authorized by statute in order to have substantive, legal effect. That case involved a suit to enjoin an agency from disclosing confidential information submitted to the agency by a pri-vate party. The agency sought to justify disclosing the information by relying on an executive E
For example, the Board stated:
Ihe oblierions imposed upon the Staff by the Comminion's commit-ment to the President to implement the provisions of the Executive Order ar.e nexin the agency.
LBP-97 8 at 45 (emphasis added).
9
order authorizing the disclosure. The Supreme Court held that the executive order could not grant the agency authority to disclose the information because none of the statutes upon which the order was based authorized the disclosure of confidential information. 441 U. S. at 303 08. See also Chen v. INS,95 F.3d 801,805 (9th Cir.1996) ("the Executive Order lacked the force and effect oflaw because it was never grounded in a statutory mandate or congres-sional delegation of authority"); United States Deo't of Health & Human Servs. v. Federal La-bor Relations Auth.,844 F.2d 1087,1095 96 (4th Cir.1988) (en banc) ("The executive branch.
.. simply has no power to make the law; that power rests exclusively with Congress"), citing Youngstown Sheet & ' ube Co. v. Sawyer. 343 U.S. 579,587-88 (1952).*
Moreover, E) ecutive Order 12898 by its express terms does not create new law, Sec-tion 1 101 directs ag encies to integrate environmental justice concerns into their programs to the extent "cermitt d by 1.uz." (emphasis added). The President's Memorandum accompany-ing the Order reflects the same intent "to underscore... provisions of existing luz that can help ensure that all communities and persons... live in a safe and healthful environment."
(Emphasis added.) Finally, section 6-609, which as discussed above expressly provides that the Executive Order does not " create any right," solidly confirms that the Executive Order is not intended to have the force and effect of law.
Thus, the Board erred in holding that Executive Order 12898 establishes new substan-tive and procedural requirements applicable to the NRC's licensing of nuclear facilities and activities.
As discussed in Parts III and IV, infra, neither NEPA nor any other applicable statute requires or authorizes the NRC as part of its licensing responsibilities to investigate an applicant's siting criteria for racial bias or motivation or to evaluate disproportionate environmental impacts of the facility on minority or low income populations.
10
III.
Executive Order 12898 Does Not Require Or Authorize Investigation Or Review Of Siting Criteria For Racial Bias The Licensing Board erred in holding that the "non discrimination component of Ex.
ecutive Order 12898 reauires" a " thorough investigation" by the NRC "to determine whether racial discrimination played a role in the CEC site selection process." LBP-97 8 at 43 45 (em-phasis added). Nothing in the Executive Order purports to require such an inquiry and none is authorized by " existing law."
A.
Section 2 2 Of The Executive Order Does Not Authorize.QI Reouire Review Of Siting Criteria For Racial Basis The non-discrimination component of the Executive Order referred to by the Board is section 2-2. See LBP 97 8 at 10,43. This section of the Executive Order, entitled " Federal Agency Responsibilities for Federal Programs," applies only to entities receiving Federal fi-nancial assistance; NRC license applicants and licensees do not receive such assistance from the i
NRC.
I
- Section 2-2 provides as follows:
- Each Federal agency shall conduct its programs, policies, and ac-tivities that substantially affect human health or the environ-ment, in a manner that ensures such programs, policies, and activities do not have the effect of excluding persons (including ooonlations) from 92rricin2 tion in. denving persons (including ponulations) the benefits of, or subiecting persons (including populations) to discrimination under such programs, policies, and activities, because of their race, color, or national origin.
EO $ 2 2 (emphasis added). Nothing in Section 2-2 suggests any intent (or provides any authority) to review the racial motivation of an applicant's site selection procedures. Rather, this section of the Order is simply a recapitulation of Title VI of the 1964 Civil Rights Act, 11
which prohibits discrimination in any program or activity receiving federal financial assistance:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from particination in. he denied the benefits of. or he subiected to discrimination under any program nr activity receiving Fehral finmdal assistance.
42 U.S.C. $ 2000d (1994) (emphasis added). This intent of section 2 2 is confirmed by the President's Memorandum accompanying the Executive Order, which expressly references Ti.
tle VI of the Civil Rights Act in the context of federal agencies ensuring that "all programs or activities receiving Federal financial assistance that affect human health or the environment do l
not... discriminate nn the basis of race. color nr national origin " Memorandum on Environ-mentalJustice (emphasis added). In contrast, in discussing the obligations of federal agencies under NEPA, the President's Memorandum does not address discrimination and instead di-rects Federal agencies to analyze "the environmental effects... including effects on minority communities and low income communities when such analysis is required by [NEPA]." Id.
Thus, section 2-2 of the Executive Order is a directive to Federal agencies to enforce Title VI of the Civil Rights with respect to programs or activities affecting the human health or the environment that receive Federal fm' ancial assistance. The courts have expressly found that Title VI's prohibition of " discrimination under any program or activity receiving Federal financial assistance" does not extend to federal licensing activities.* Therefore, section 2 2 of the Order (referred to by the Board as the "non-discrimination component of the Executive Order") can only be applicable to activities receiving Federal financial assistance, and does not establish any new standard for NRC licensing actions or NEPA reviews. It does not - and S.eg, eg,,, Gottfried v. FCC. 655 F.2d 297,312-13 (D.C. Cir.1981), cert denied,454 U.S.1144. - - -
E (1982);.J2tc.Eson v. Delta Airlines. Inc. 742 F.2d 1202,1212 (9th Cir.1984), cert. dismissed,471 U.S.
1062 (1985); Paralyzed Veterans of America v. Civil Aeronautics Bd. 752 F.2d 694,707-08 (D.C. Cir.
1985), rev'd and remanded. 477 U.S. 497 (1986).
12
O cannot given its lack of str.utory authority - authorize the extensive, independent NRC inves-i tigation called for by the Board to demonstrate the absence of racial motivation in the selec-tion of the CEC site.
B.
Section 1101 Of The Executive Order Does Authorize.Qt Reauire Review Of Siting Criteria For Racial B2 sic Similarly, the other operative provision of the Executive Order cited by the Board, section 1 101, does not provide any authority for an agency to launch investigations into the motivation of a project or the political correctness of an applicant's decision making tools, if it requires anything in a legal context, all it requires is " identifying and addressing... dispro-portionately high and adverse human health or environmental effects.., on minority popula-tions and low income populations."
Moreover, section 1 101 expressly provides that these 6bjectives must be achieved within the framework of existing law (iA, to the extent " permitted by law"). This limitation is further reflected in the President's Memorandum: "[E]ach Federal agency shall analyze the environmental effects, including human health, economic and social affects, of Federal actions,
- including effects on minority communities and low income communities, Ehtn such 2n21vsis is reauired by the National Env.ironment21 Enlicy Act af12fd (NEPA),42 U.S.C. section 4321 et seq." Memorandum on EnvironmentalJustice (emphasis added). Thus, the Executive -
Order calls for agencies to consider these effects only when and to the extent required by -
NEPA.*
No provision in NEPA requires or authorizes an agency to review siting criteria for racial motivation. Rather, as reflected by the President's Memorandum, NEPA is focused on analyzing the " environmental impact" of " major Federal actions significantly affecting the
- As discussed in Part IV, infra, NEPA does not require evaluation of disproportionate impacts.
13
- quality of the human environment," and is not directed at addressing potential racial bias. Sec 42 U.S.C. $ 4332(2)(C). As stated by the Supreme Court in Metropolitan Edison Co. v. Peo-pie Against Nuctcar FnergyJ 460 U.S. 766 (1983)
Ihc theme of rNEPA]is sonsid hx the adiective " environ-mental":.... M g A iaed tg promotg human welfare
?
. hy alerting governmental actors (Q thg d[Lgg Q[thgir propowd ag:.
Lions on the phvsic21 environment.
460 U.S. at 772 (emphasis added). Accord, Glau Packaging inst. v. Regan. 737 F.2d 1083,1091 (D.C. Cir.), cert.- denied,469 U.S.1035 (1984) (the policies of NEPA "are too important to be diluted" by consideration of asserted environmental impacts "well beyond any reasonable in-i terpretation of the ' natural and physical environment' encompassed under NEPA");
Thus, NEPA is concerned with impacts on the physical environment and related sec-ondary socio-economic effects, and not the motivations of any of the individuals involved.*
There is no requirement in the NRC's regulations implementing NEPA (10 C.F.R. Part 51),
or the CEQ Guidelines on which they are based (40 C.F.R. Part 1500), for any sort of dis -
- criminnory motivation review. The NRC has never undertaken, as part ofits NEPA review process for license applications, any review of siting criteria for racial motivation. Nor for that matter has any other Federal agency insofar as NEI is aware.
- No federal agency implementing Executive Order 12898 has suggested that it requires any review under NEPA of discriminatory motivation. The environmental justice guidelines for NEPA evaluations prepared by the Offices of Nuclear Material Safety and Safeguards
(("NMSS") and Nuclear Reactor Regulation ("NRR") do not address the topic of racial
- - __...= -.
.--.a
- As discussed in Part II above, because NEPA does not address racial bias, the Executive Order -
would lack the necessary statutory basis to direct an investigation of racial motivation as part of the
. NEPA process even assuming that were the Order's intent.
14
.. _.. _...i
discrimination or section 2 2 of the Executive Order.* Additionally, then NRC Chairman Selin in his March 31,1994 letter to President Clinton, stating that the NRC would endeavor to implement the Executive Order, made reference to the NRC's intent to address the Execu-tive Order principles in its traditional evaluation of "the social, economic, and health effects of
[its] actions." There is no mention of racial discrimination.* The same is true for guidance being developed by CEQ and EPA, even though such guidance would not be binding on inde-pendent agencies such as NRC CEQ's " Draft Guidance for Considering EnvironmentalJus-l tice Under the National Environmental Policy Act" (March 26,1997) discusses identifying and addressing disproportionately high and adverse effects, and ensuring effective public par-ticipation in the NEPA process Neither racial discrimination nor the substance of section 2 2 is discussed in the CEQ draft guidance. Nor is there any such discussion in the draft guidance
(
being developed by the EPA Office of Federal Activities, " Guidance for Incorporating Envi-ronmentalJustice Concerns in EPA's NEPA Compliance Analyses" (Review Draft, July 12, 1996).
For all these reasons, at the very most the Executive Order only calls for compliance with NEPA and proper consideration of the effects of a proposed action. No statutory authority exists under NEPA for the investigation of racial motivation as called for by the Board's decision.
- S.ee NMSS Policy and Procedures Letter 1-50, Rev.1, " Environmental Justice in NEPA Docu-ments" (April 21,1995); Interim NRR Procedure for Environmental Justice Reviews (March 16, 1995).
- The former Chairman's March 31,1994 letter does not reflect formal Commission concurrence nor does any SECY or Staff Requirements Memorandum exist reflecting such concurrence. If the for-mer Chairman had believed that the NRC was taking on major "new" obligations "far afield" from its traditional activities, (scr. LBP-97-8 at 45), one would certainly believe that the Commission would have discussed this mr.,er and formal Commission approval would have been obtained. S.ee 10 C.F.R. $ 1.11(a) ("The Chairman's actions are governed by the policies of the Commission.")
15
IV.
NEPA Does Not Require Or Authorize Review Of Disproportionate -
Impacts Separate from its review of racial motivation, the Board also reviewed whether the ER and FEIS adequately identified and addressed " disproportionately high and adverse human i
health or environmental effects on minority and low income populations" in compliance with section 1101 of the Executive Order. LBP 97 8 at 1214,60 88. The Board erred in judging the adequacy of the ER and FEIS against the Executive Order because, for the reasons stated o
(
above, the Executive Order is not applicable to licensing proceedings and cannot create new l
licensing requirements. Rather, the adequacy of the FEIS and the ER must be judged against l
the legal standards applicable under NEPA and not what the Board perceived to be the appro-nriate inquiry under the Executive Order. As a result of this error, the Board erroneously concluded that the FEIS and ER were legally deficient.
Under section 102(2)(C) of NEPA, agencies are required to analyze significant, adverse impacts on the physical environment resulting from major federal actions as well as proxi-mately related secondary, socio-economic impacts. Nothing in NEPA suggests that either the significance of such impacts or the level of their mitigation are to be judged based on the race or economic status of those affected. NEPA has been in existence for more than 25 years and it has never been interpreted to require analysis of whether a particular major federal action will have a disproportionate impa:t on selected populations of differing race or economic class. As observed by the U.S. District Court in New River Wilev Greens v. DOT. supra, LEXIS 16547,
- 18 an agency "could not be held to have violated NEPA for failing to consider disproportionate impacts on minorities and low income populations" prior to the Executive Order because no such mandate exists under NEPA.*
- It is a well established rule of statutory interpretation that the contemporaneous interpretation of a Footnote continued on next page 16 l
_U
Therefore, the issue under NEPA is not whether a particular major federal action, such as licensing the CEC, has a disproportionate impact on minority or low income populations, but whether there are significant, adverse impacts regardless of the population affected. Ex-ecutive Order 12898 does not impose any different approach for NEPA evaluations. The pro-visions of section 1 101 are expressly limited "[t]o the greatest extent practicable and permitted h lar" (Emphasis added.) As found by the court in New. River Vallev Greens, dispropor-tionate impacts play no role in NEPA evaluations as a matter oflaw (albeit analysis of such impacts may be proper in other contexts where a agency has discretion, such as the taking of j
enforcement actions). Indeed, the President's Memorandum supports this interpretation. In discussing the application of NEPA it does not use the term " disproportionate." Rather, the President's Memorandum directs each Federal agency to " analyze the environmental effects, including human health, economic and social affects, of Federal actions, including effects on minority communities and low income communities, zhen such analvsis is reouired b
[NEPA)." (emphasis added). The President can certainly call for federal agencies to analyze impacts to the extent required by NEPA, but such a directive does not and cannot change the legal standard against which those impacts are judged under NEPA.
Thus, the Board erred in judging the adequacy of the ER and the FEIS against the Ex-ecutive Order's call for the evaluation of disproportionate impacts. The Executive Order does not create new law and disproportionate impacts do not play any role in NEPA evaluations.
Footnote continued from previous page statute or regulation by those charged with its implementation is entitled to great weight. SrA n, Watt v. Alaska,451 U.S. 259,272 73 (1981) ("[t]he Department's contemporaneous construction car-ries persuasive weight"); INS v. Cardoza-Fonseca,480 U.S. 421,448 n. 30 ( 1987) ("(a]n agency inter-pretation... that conflicts with the agency's earlier interpretation is ' entitled to considerably less deference' than a consistently held agency view").
17
4 V.
The Board's Imposition Of Additional Licensing Standards Violates The Administrative Procedure Act And Due Process i
The Board's decision also violates the Administrative Procedure Act ("APA") by im.
posing new licensing standards for the CEC facility. The May 1991 notice of hearing and or-der identified the regulatory standards by which LES's application is to be judged. 56 Fed.
Reg. 23,310 (May 21,1991).Section III of this notice and order stated that the NRC would is-sue a license for the CEC facility if the applicant complies with " applicable codified regula-tions identified in Part IV of this Notice and Commission Order," as well as certain other i
l special conditions and instructions in the notice and order. 56 Fed. Reg. at 23,31112.Section IV identified the specific NRC regulations that would apply, including "10 CFR part 51, for the preparation of an environmental report and an environmental impact statement for a ma-terials license." Id. at 23,313.E The Board's decision imposes additional standards for the licensing of the CEC beyond those specified in May 1991 notice and order, namely establishing compliance with the provi-r sions of Executive Order 12898. Nowhere does the May 1991 notice or order or the NRC
- regulations require compliance with this or any other Executive Order as a condition for re-ceiving a license. Nor do they address in the context of licensing a nuclear facility the issues of racial bias or disproportionate impact or require the ER or the FEIS to address such issues.
The Board therefore exceeded its authority under the May 1991 notice and order and its deci-sion is arbitrary and capricious. Moreover, the Board's decision, if left standing, would effec-tively amend the NRC's regulatory standards for the issuance of a license in violation of the APA.- Sem c.g.. National Family Planning & Reoroductive Health Ass'n v. Sullivan. 979 F.2d C
Section IV also included the regulatory requirements for byproduct, source and special nuclear ma.
terial. The regulations covering each category of nuclear material provide licensing standards for the issuance of a license for the possession of that material. Sre. c.g.,70.23 for special nuclear material; les
. ahn 10 C.F.R. $ 50.57 setting forth the licensing standards for power reactors.
18
4-227 (D C. Cir.1992) (where an agency reinterprets a regulation "to significantly alters its meaning, as previously interpreted and enforced," the agency must provide notice and com-
- nent in accordance with the "rcquirements of 5 553 of the APA"). Here, the Board has sig.
nificantly reinterpreted the NRC's regulations by imposing what the Board itself haracterized as "new" obligations. LBP 97 8 at 45.
c CONCLUSION For the foregoing reasons, the Commission should reverse the Board's decision. The decision is erroneous and, if left to stand, could adversely effect the course of many future NRC licensing proceedings and add uncertainty and unnecessary risk to any activ! ties subject to NRC licensing, Respectfully submitted, Nuclear Energy Institute Shaw, Pittman, Potts & Trowbridge ~
1776 I Street, N.W.
2300 N Street, N.W.--
u Washington, D.C. 20006 -
Washington, D.C 20037 hsr)
A-
~
L Robert W. Bishop: I' f Jayf. Shberg j
f Vice President sud General Counsel Dasid ik. Lewis Paul A. Gaukler Counsel for Nuclear Energy Institute Datedi August 8,1997 -
47345148 / DOC 5DCt -
19
~
DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 97 AUG 11 A9:12 i
0FFICE OF SECRETARY Before the Commissiom 00CMETlHG & SERVICE BRANCH
)
In the Matter of
)
)
Docket No. 70 30 ML L
LOUISIANA ENERGY SERVICES, L.P. )
)
(Special Nuclear Material (Claiborne Enrichment Center)
)
License)
)
CERTIFICATE OF SERVICE 1 hereby certify that copies of"NEl Amicus Brief On Review Of Licensing Board Decision LBP-97-8 Concerning Environmental Justice" have been served on the persons listed below by deposit in the United States mail, first class, postage prepaid, or where in-dicated by an asterisk by hand delivery, or where indicatd by a double asterisk by both facsimile and first class mail, this 8th day of August,1997.
' Shirley A. Jackson, Chairman ~
- Greta J. Dieus,' Commissioner U.S. Nuclear Regulatory Commission -
U.S. Nuclear Regulatory Commission -
Mail Stop O-16 GIS -
Mail Stop O-16 GIS One White Flint North One White Flint North
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e
- Edward McGaffigan, Jr., Commissioner
- Nils J. Diaz, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O 16 015 Mail Stop O 16 015 One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Thomas S. Moore, Administrative Judge
- Frederick J. Shon, Administrative Judg Chairman, Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Richard F. Cole, Administrative Judge
- Office of Commission Appellate Atomic Safety and Licensing Board Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Two White Flint North One White Flint North 11545 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- 0mce of the Secretary Atomic Safety and Licensing Board Pan Attn: Docketing and Service Branch U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 One White Flint North 11555 Rockville Pike Rockville, MD 20852 2738
- Eugene Holler, Esq.
J. Michael McGarry, III, Esq.
Omce of the General Counsel Winston & Strawn U.S. Nuclear Regulatory Commission 1400 L Street, N.W.
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a;
_g Robert _G. Morgan WC26B Marcus A. Rowden Esq.
Licensing Manager Fried, Frank, Harris, Shriver & Jacobsen Duke Engineering & Services,Inc.
I101 Pennsylvania Avenue,N.W.
400 South Tryon Street - _
Suite 900 South Charlotte, NC 28201-1004 Washington, DC 20004 Diane Curran, Esq.
Roland J. Jensen Harmon Curron, Gallagher & Spielberg Louisiana Energy Services, L.P.
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l
_ Washington, DC 20009 Suite 608 Washington, DC 20037 Joseph DiStefano, Esq.
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P.O. Box 82135 Rights Under Law Baton Rouge, LA-70884-2135 1450 G Street, N.W., Suite 400 Washington, DC 20005 N
David R. Lewis Counsel for Nuclear Energy Institute a
3