LES tried again in Tennessee and was kicked out of one community, then another. They ultimately got licensed and started construction in New Mexico, over the legal protests and interventions by the Nuclear Information and Resource Service (NIRS). The facility was built and started up in 2009, 5 miles from the city of Eunice in Lea County, New Mexico. Following the nuclear industry's awful trend of disproportionately harming communities of color, 39.6% of Eunice and 45.6% of Lea County is Hispanic/Latino (the national average is 14.7%). 14.2% of Eunice families and 13.9% of Lea County families live below the poverty level (national average is 9.8%).
p391: [CEC = Claiborne Enrichment Center, the name of the proposed LES facility.]
Racial discrimination in the facility site selection process cannot be uncovered with only a cursory review of the description of that process appearing in an applicant's environmental report. If it were so easily detected, racial discrimination would not be such a persistent and enduring problem in American society. Racial discrimination is rarely, if ever, admitted. Instead, it is often rationalized under some other seemingly racially neutral guise, making it difficult to ferret out. Moreover, direct evidence of racial discrimination is seldom found. Therefore, under the circumstances presented by this licensing action, if the President's nondiscrimination directive is to have any meaning a much more thorough investigation must be conducted by the Staff to determine whether racial discrimination played a role in the CEC site selection process.
Before turning to a discussion of the evidence in this proceeding, we wish to emphasize that our determination that the Staff's limited review of the description of the siting process set out in the Environmental Report was inadequate and that the Staff now must undertake a thorough investigation, is not intended as a criticism of the Staff. The obligations imposed upon the Staff by the Commission's commitment to the President to implement the provisions of the Executive Order are new to the agency. Because this agency's primary responsibilities historically have dealt with technical concerns, investigating whether racial discrimination played a part in a facility siting decision is far afield from the Staff's past activities. Indeed, because racial discrimination questions have not previously been involved in agency licensing activities, this is an area in which the Staff has little experience or expertise. Nevertheless, if the President's directive is to have any meaning in this particular licensing action, the Staff must conduct an objective, thorough, and professional investigation that looks beneath the surface of the description of the site selection process in the Environmental Report. In other words, the Staff must lift some rocks and look under them.
p392: [As the company narrowed down the sites it considered, the target communities became more and more black.]
Of the remaining seventy-eight proposed sites, however, the Intervenor's analysis reveals that the aggregate average percentage of black population within a 1–mile radius of each of the sites across sixteen parishes is 28.35%. After the initial site cuts reduced the list to thirty-seven sites in nine parishes, including the sites in Claiborne Parish, the aggregate percentage of black population rose to 36.78%. Then, when the search narrowed to the six sites in Claiborne Parish, the aggregate average percent of black population increased to 64.74%. Ultimately, the process culminated in a chosen site with a black population of 97.1% within a 1–mile radius of the LeSage site, which is the site with the highest percent black population of all seventy-eight examined sites.
As we have already observed, we would not expect instances of racial discrimination to be admitted. Instances of racial bias are often rationalized in ways that avoid the question, so that a person can state, with conviction, that he or she did not discriminate even when objective evidence suggests otherwise. In so stating, it is not our intent to impugn the integrity of the Applicant's witnesses. Rather, our point is simply that this and similar testimony of the Applicant's witnesses does not adequately rebut the Intervenor's statistical evidence.
p395: [Mr. Engwall worked on facility siting for LES.]
At his deposition, Mr. Engwall no less than seven times testified under oath that he performed his evaluation of the population of the LeSage and Emerson sites by driving through the area and performing a visual or "eyeball" assessment. Indeed, he even asked his questioner, Intervenor's counsel, "How else are you going to do it?" and indicated that, in his site selection training prior to his work on the CEC project, he learned to evaluate population by driving around and looking.