(November 28, 2003) The U.S. Nuclear Regulatory Commission (NRC) issued on 5 November a draft policy statement that substantially weakens its position on environmental justice issues and backtracks on a commitment made by the NRC in 1994 to abide by the terms of President Clinton's executive order on environmental justice.
(599.5558) NIRS - That order required federal agencies to consider environmental justice issues as part of their general responsibilities and to take steps to ensure that federal actions do not disproportionately affect minority and low-income communities. The order was issued following years of activism and research which revealed that toxic and environmentally hazardous facilities were disproportionately sited in minority and low-income communities. Under the order, federal agencies were required to examine whether their policies-such as approving the siting of hazardous facilities-led to a disproportionate impact in such communities and if so, to take corrective actions. Although the NRC is an independent agency and not subject to Executive Orders, NRC Chairman Ivan Selin committed the NRC to complying with the Executive Order.
The current draft statement represents NRC's effort to step backwards and accommodate the nuclear power industry a position that some characterize as itself racist, but that at the least reveals the industry's inability to even understand issues of racism, much less deal with them on its own. In December 2002 the industry's Nuclear Energy Institute (NEI) had written to the commission asking that the agency implement new rules forbidding anyone from raising environmental justice issues for any reason in the licensing process for nuclear facilities. In other words, the nuclear industry sought complete immunity from any charges of racism whatsoever.
The approach the NRC came up with is not nearly so blatantly racist, but certainly should meet most of the NEI's goals. The NRC has not forbidden environmental justice issues, it's just made raising them nearly impossible. And it hasn't completely denied the president's executive order, it has just said that it will deal with environmental justice issues only during the normal range of business-relegating them to consideration of National Environmental Policy Act (NEPA) issues, which, of course, is exactly where they were before President Clinton issued the order. In other words, the NRC seems to be saying, yes, we know the executive order exists and has never been rescinded, but we're going to comply with it by doing what we were doing before it was issued…which in the NRC's case was nothing.
Typically, the NRC mishandled the issue from the beginning. A press release was published by the NRC on 31 October announcing the new draft policy, but the policy itself wasn't released until 5 November. Then the policy, as printed in the Federal Register, offered only a 60-day public comment period-over the winter holiday season. And then, as NIRS pointed out to the NRC on 14 November, none of the materials related to the policy-nor the draft policy itself-were available for public perusal on the NRC's website, making a mockery of the public comment period.
NIRS asked for a 180-day extension of the public comment period, and as other groups began supporting that request via the NRC's preferred method of public comment: e-mail, it was learned that the NRC had printed the wrong e-mail address in the Federal Register, so the agency never received many of the extension requests.
As the Nuclear Monitor goes to press, the NRC says that it has fixed the e-mail address problem, and the address that was published can be used. But the NRC has not yet said whether or how long it will extend the comment period, nor whether it will-as it should-start over again and re-publish the draft statement. NIRS and many other groups also asked for public meetings across the country so that the NRC may explain the draft policy and accept comments in person.
And explaining the policy may be very necessary-it seems to be written in deliberately obfuscatory language; lawyers obviously went over the language many times. Rather than clarify the environmental justice issue and explain why the NRC believes changes to its existing policy are necessary, the policy appears designed to confuse the issue and make it appear that virtually no changes are being made when, in fact, the changes are fundamental and a near-complete rejection of the agency's commitment to environmental justice.
The draft policy makes clear that the NRC believes environmental justice issues are not per se litigable in licensing proceedings. The policy goes on to state that environmental justices issues won't be considered in generic rulemakings or proceedings, and that, in fact, they will only be considered under limited NEPA-related actions. Instead of welcoming the Executive Order, the NRC now is parsing the Order to determine how little it can do to meet its intent rather than how much it can do to address environmental racism issues-for which the nuclear power industry has a miserable track record.
Indeed, the Nuclear Energy Institute's December 2002 letter was spawned by its recognition that environmental justice issues were getting in the way of licensing of major projects. Most famously, these included Louisiana Energy Services (LES) which was denied a license in 1997 by the Atomic Safety and Licensing Board on environmental justice grounds (see WISE News Communique 474.4694: "Environmental racism: LES license denied"). The NRC Commissioners later partially overturned that ruling, but it was too late for LES, which gave up its quest to build a uranium enrichment plant in northern Louisiana (the company is now trying to build a similar plant in eastern New Mexico, in an area with a large Hispanic population).
More recently, environmental justice issues have surfaced in the licensing case of the proposed Private Fuel Storage high-level nuclear waste dump on Native American land in Utah (see also WISE News Communique 559.5349: "Environmentally racist nuke waste dump tears Goshutes apart").
And environmental justice issues are expected to arise at early site permit hearings for a new NPP at the Grand Gulf site in Mississippi. Although an existing reactor already is there, it is unlikely that reactor could have been built in the largely poor, largely African-American community in which it is located had the NRC's existing policy been in effect. And opposition to a new reactor at that site already is building among the local population.
The NRC's draft policy statement and some related documents are now available on the NRC's website, www.nrc.gov (in the proposed rulemakings section). The statement and related documents also are available on NIRS' website, www.nirs.org. Currently, the comment period is slated to end 5 January 2004, but as noted, NIRS and many other groups are seeking a 180-day extension of the period, until 4 July 2004. Comments are being accepted at hearingsdocket@nrc.gov or by fax at 301-415-1101 (non-US residents at +1-301-415-1101). The NRC will accept, but discourages comments by regular mail because delivery of mail to government offices remains disrupted because of the anthrax alert.
Comments by international groups is encouraged by NIRS. Positions taken by the U.S. NRC often are used as justification by regulatory agencies in other countries (and vice versa), and a large international outpouring of protest over the NRC's treatment of environmental justice and fundamental human rights issues would be both appropriate and helpful.
NIRS is mounting a major campaign to protect the environmental justice concept and to maintain the rights of people to bring up the issue in hearings and other litigation. We will be posting our own comments to the NIRS website as soon as they are completed. We also will be making pre-printed comment postcards available for widespread distribution. Let us know how many such postcards your group would like so we can determine the appropriate print run by contacting us at nirsnet@nirs.org or 202-328-0002 (+1-202-328-0002 for non-US residents).
Source and contact: NIRS at nirsnet@nirs.org