NRC staff concludes review of Environmental Justice policy, makes recommendations to the Commission

The SECY package contains the staff paper, which includes six high-level recommendations to the Commission and six commitments that the staff will undertake, and 13 enclosures explaining the review findings in detail.  The documents contained in the SECY's package sent to the Commission can be found here.

The SECY paper is a result of the Commission directing the staff in April 2021 to “systematically review how the agency's programs, policies, and activities address environmental justice,” which involved a public comment period.  As part of the review, the Commission directed the NRC staff to evaluate relevant Executive Orders and assess whether environmental justice is appropriately considered and addressed in the agency's programs, policies, and activities, given the agency's mission.  In its review, the staff also assessed the adequacy of the 2004 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions (“2004 Policy Statement”), and considered whether establishing formal mechanisms to gather external stakeholder input would benefit future environmental justice efforts.  We discussed the NRC directive to assess environmental justice, the 2004 Policy Statement, and White House impact on this particular review in a previous blog available here. 

Since April 2021, the NRC staff conducted outreach to a diverse group of stakeholders and interested persons, including environmental justice communities and Tribal nations, other federal agencies, industry groups, nuclear safety organizations and the public at large. Over the course of the assessment, the NRC held a series of public meetings and received approximately 2,500 written comments.

The general takeaway from the NRC staff, as set forth in the SECY paper, is that the NRC's approach to environmental justice in its programs, policies and activities has mostly served the agency well, yet there are opportunities for programmatic and policy enhancements moving forward.  Specifically, the SECY paper recommends that the Commission approve the following high-level actions:

• Revise the NRC's 2004 Policy Statement on Environmental Justice. The SECY paper  suggests the existing NRC policy statement could benefit from additional clarity, consistency and transparency.  Stakeholders should be engaged in the revision process.
• Revise the NRC's 1995 Environmental Justice Strategy. According to the SECY paper, this environmental justice strategy is comprehensive, but it does not account for all the changes in NRC programs, policies, and activities since it was published in 1995. This effort should also include stakeholder engagement and could be done simultaneously with the 2004 Policy Statement revision noted above.
• Enhance environmental justice-related outreach activities. The NRC should take a more comprehensive approach to public outreach, especially to environmental justice communities and Tribal nations. The SECY paper recommends establishing permanent staff positions dedicated to EJ-related outreach, enhancing guidance for NRC staff on environmental justice engagement, and improving accessibility to environmental justice guidance and procedures.
• Implement formal mechanisms to enhance how environmental justice is addressed at the NRC. The SECY paper proposes two separate, dedicated mechanisms aimed at benefiting future environmental justice efforts:

1. • Creation of an outside Federal Advisory Committee for Environmental Justice; and
   • Holding periodic Commission meetings with environmental justice communities and Tribal nations on cross-cutting environmental justice issues.

The NRC staff’s recommendation to establish a Federal Advisory Committee generated an internal NRC staff differing view, as explained in the SECY paper, that hiring one or more outside environmental justice experts to be on the NRC staff might be a more timely and efficient way to benefit from external views on environmental justice matters than setting up an outside federal committee.  However, the NRC staff overall decided this approach would not guarantee the requisite independence and external views critical to environmental justice activities.

• Assess potential changes to current prohibition on NRC funding intervenors. Congress has barred the use of appropriated funds to pay the expenses of, or otherwise compensate, parties seeking to intervene in NRC regulatory or adjudicatory processes. Many commenters said lack of funding is a barrier to public participation, especially for environmental justice communities. The SECY paper recommends that the Commission direct the staff to conduct a separate assessment of whether the agency should seek legislative changes to the current prohibition on intervenor funding.
• Assess whether enhancements can be made to how environmental justice is addressed in the Agreement State application process and related activities. The process by which the NRC enters into a cooperative agreement with a State under Section 274 of the Atomic Energy Act is categorically excluded from the NRC's environmental review provisions under the National Environmental Policy Act (“NEPA”). As a result, there is no environmental justice review when the NRC agrees to delegate to an Agreement State the Commission’s regulatory authority over radioactive materials. The SECY paper recommends the Commission direct a separate assessment of the Agreement State application process and related activities to identify any potential improvements or modifications that could benefit environmental justice communities and Tribal nations.

​​​​The SECY paper also identified commitments that the NRC staff will undertake without Commission approval to streamline the agency's consideration of environmental justice.  Summary of these commitments are listed below.

• Enhance communication. The NRC staff will boost engagement with environmental justice communities and Tribal nations on issues associated with dose and radiation protection and related interagency research.  The NRC staff will increase communication related to emergency preparedness, response and recovery activities, and use existing processes to enhance communication and information related to impacts on environmental justice communities from shutting down nuclear facilities.  The NRC staff will also improve communications with environmental justice communities and Tribal nations about the NRC's hearing process.
• Implement lessons learned. The NRC staff will assess enhancing the consideration of environmental justice in regulatory cost-benefit analysis guidance and consider best practices and knowledge gained through this review in future updates to environmental review guidance.

As a next step, the Commissioners will consider the staff's recommendations. The NRC staff noted in the SECY paper that within 120 days of receiving the Commission's decision on the SECY paper’s recommendations, the staff is prepared to develop an implementation plan with scheduling commitments and resource estimates.

For more information on the NRC’s environmental justice review, please contact blog authors Amy Roma, Partner, Stephanie Fishman, Associate or Rob Matsick, Associate.

Authored by Amy Roma, Stephanie Fishman, and Rob Matsick.