The NRC staff recently released its long-awaited policy paper on Environmental Justice (EJ) reform at the agency (SECY-22-0025, “Systematic Review of How Agency Programs, Policies, and Activities Address Environmental Justice”). The staff’s retrospective review found that current NRC EJ efforts are fully consistent with applicable law. Nevertheless, they provided a series of recommendations and commitments for Commission consideration.
Looking Back
As noted in our post from October 2021, the Commission directed the NRC staff to evaluate EJ within NRC programs, policies, and activities such as adjudicatory procedures and environmental reviews, given the NRC’s mission. As part of its systematic review, the staff conducted benchmarking at other agencies and extensive public outreach, including comment gathering, public meetings, virtual discussions with stakeholders and representatives of tribal governments and other tribal groups across the country.
Current Lay of the Land
EJ considerations at the NRC are currently limited to NEPA-related activities for regulatory and licensing actions. However, the NRC staff’s EJ report has identified areas where consideration of EJ could be updated, enhanced, or modernized both within and outside the NEPA context, including enhancements to the agency’s 2004 EJ Policy Statement and implementation of formal mechanisms to benefit future EJ efforts.
The EJ report makes six high-level recommendations. The last three are most noteworthy, potentially creating additional regulatory burdens and adding further delay and complexity to an already-burdensome agency review process.
The NRC Staff’s Recommendations and Commitments
- Revise the EJ Policy Statement for additional clarity, consistency, and transparency;
- Revise the NRC’s (non-public) 1995 EJ Strategy to account for all the changes made in NRC programs, policies, and activities since 1995;
- Enhance EJ-related outreach activities to take a comprehensive approach to outreach that enhances communication and engagement with EJ communities and tribal nations;
- Implement two formal mechanisms to improve how EJ is addressed at the NRC by (1) creating a federal advisory committee for EJ matters and (2) holding periodic Commission meetings with EJ communities and tribal nations on cross-cutting EJ issues;
- Assess potential changes to the current prohibition on intervenor funding by directing the NRC staff to undertake a separate assessment and assemble a report on whether the Commission should request legislative changes to the current prohibition on intervenor funding;
- Evaluate whether the NRC can make enhancements to how EJ is addressed in the agreement state application process and related activities by (1) recommending the Commission consider revisions to the EJ Policy Statement to encourage states to implement EJ in their regulatory activities and (2) recommending the NRC undertake a separate assessment of the agreement state application process and other related NRC activities to identify potential improvements or changes that could benefit EJ communities and tribal nations and report back to the Commission with recommendations.
Additionally, the NRC staff makes several commitments, reflecting the staff’s pledge to enhance communication with EJ communities and tribal nations on specific topics, such as radiation protection and emergency preparedness, decommissioning, and the hearing process.
Looking Ahead
The recommendations remain pending before the Commission and there is no specified deadline for Commission action. However, if the Commission approves some or all of the staff’s proposals, the staff anticipates phasing execution of these recommendations and commitments across future years.
As Morgan Lewis advises NRC-regulated entities on EJ in licensing matters and other potentially affected activities, Morgan Lewis will continue to track related developments.