[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Notices]
[Pages 39650-39701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15673]
[[Page 39649]]
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Part II
Environmental Protection Agency
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Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Draft Recipient Guidance) and Draft
Revised Guidance for Investigating Title VI Administrative Complaints
Challenging Permits (Draft Revised Investigation Guidance); Notice
Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 /
Notices
[[Page 39650]]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6720-7]
Draft Title VI Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs (Draft Recipient
Guidance) and Draft Revised Guidance for Investigating Title VI
Administrative Complaints Challenging Permits (Draft Revised
Investigation Guidance)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Draft Agency Guidance.
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SUMMARY: EPA today released two draft guidance documents to clarify for
agencies and citizens the compliance requirements of Title VI of the
Civil Rights Act. The guidance strikes a fair and reasonable balance
between EPA's strong commitment to civil rights enforcement and the
practical aspects of operating permitting programs. Title VI prohibits
discrimination based on race, color, or national origin, and applies to
entities that receive federal funding from EPA. When state and local
agencies that receive federal funding have questions about avoiding
discrimination in their permitting programs, the first guidance, Draft
Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs, explains how to effectively deal
with the types of concerns that often lead to complaints of
discrimination.
If formal complaints are filed, the second guidance, Draft Revised
Guidance for Investigating Title VI Administrative Complaints, explains
how EPA will investigate and resolve them. It also explains to
communities and recipients the types of concerns that Title VI
addresses and their roles in the investigation process. Once the Draft
Revised Guidance for Investigating Title VI Administrative Complaints
is final, it will replace the Interim Guidance for Investigating Title
VI Administrative Complaints Challenging Permits (Interim Guidance)
issued in February 1998.
DATES: Comments on the two draft guidance documents must be received in
writing by August 28, 2000. Comments should be mailed to the address
listed below.
ADDRESSES: Written comments on the two draft guidance documents should
be mailed to: Title VI Guidance Comments, US Environmental Protection
Agency, Office of Civil Rights (1201A), 1200 Pennsylvania Avenue NW.,
Washington, DC, 20460, or submitted to the following e-mail address:
[email protected]. Please include your name and address, and,
optionally, your affiliation.
FOR FURTHER INFORMATION CONTACT: Yasmin Yorker, US Environmental
Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania
Avenue NW., Washington, DC, 20460, telephone (202) 564-7272.
SUPPLEMENTARY INFORMATION:
Table of Contents
A. Preamble
B. Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Draft Recipient Guidance)
C. Draft Revised Guidance for Investigating Title VI Administrative
Complaints Challenging Permits (Draft Revised Investigation Guidance)
D. Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance
A. Preamble
Today's Federal Register document contains two draft guidance
documents on which the U.S. Environmental Protection Agency (EPA) is
seeking public comment. The first is the Draft Title VI Guidance for
EPA Assistance Recipients Administering Environmental Permitting
Programs (Draft Recipient Guidance). The second is the Draft Revised
Guidance for Investigating Title VI Administrative Complaints
Challenging Permits (Draft Revised Investigation Guidance). After the
Draft Revised Investigation Guidance is finalized, it will replace the
Interim Guidance for Investigating Title VI Administrative Complaints
Challenging Permits (Interim Guidance) issued in February 1998. EPA is
soliciting public comment on both of these documents for 60 days.
During the public comment period, EPA will hold six public
listening sessions around the country to receive additional input. EPA
also expects to meet with various stakeholder organizations during the
comment period to listen to their comments. (A current list of
scheduled outreach meetings is posted on EPA's Office of Civil Rights'
(OCR) Web site at http://www.epa.gov/civilrights). See the Public
Comment Period section of this document for details about the public
comment period and the listening sessions.
EPA will consider both the written public comments submitted and
the information collected during the listening sessions and stakeholder
meetings as it drafts the final versions of both the Draft Recipient
Guidance and the Draft Revised Investigation Guidance documents. EPA
will also continue its interagency coordination through its work with
the U.S. Department of Justice and the Council on Environmental
Quality.
Today's document also contains a Summary of Key Stakeholder Issues
Concerning EPA Title VI Guidance. EPA is not soliciting comments on the
Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance. It
is provided for informational purposes only.
Background
Entities applying for EPA financial assistance submit an assurance
with their application stating that they will comply with the
requirements of EPA's regulations implementing Title VI of the Civil
Rights Act of 1964 (Title VI) with respect to their programs or
activities. When the recipient receives the EPA assistance, they accept
the obligation to comply with EPA's Title VI implementing regulations.
Persons who believe Federal financial assistance recipients are not
administering their programs in a nondiscriminatory manner may file
administrative complaints with the EPA or other relevant Federal
agencies. These complaints must be filed subsequent to a particular
action taken by a recipient (such as the issuance of an environmental
permit) that the complainants allege has a discriminatory purpose or
effect.
In February 1998, EPA issued its Interim Guidance, which is
internal guidance that provides a framework for OCR's processing of
complaints filed under Title VI that allege discrimination in the
environmental permitting context on the basis of race, color, or
national origin.
The Draft Revised Investigation Guidance was developed to address
the application of Title VI to alleged adverse disparate impacts caused
by environmental permitting. It does not address other applications of
Title VI in the environmental context, such as allegations concerning
the unequal enforcement of environmental permit conditions,
regulations, or statutes, or allegations relating to discrimination in
public participation processes associated with permitting decisions.
This guidance is directed at the processing of discriminatory effects
allegations, Title VI complaints may also allege discriminatory intent
in the context of environmental permitting. Such complaints generally
will be investigated by OCR under Title VI, EPA's Title VI regulations,
and
[[Page 39651]]
applicable intentional discrimination case law. Such topics will be
addressed in future guidance documents as appropriate.
The filing or acceptance for investigation of a Title VI complaint
does not suspend an issued permit. Title VI complaints concern the
programs being implemented by Federal financial assistance recipients
and any EPA investigation of such a complaint primarily concerns the
actions of recipients rather than permittees. While a particular
permitting decision may act as a trigger for a complaint, allegations
may involve a wider range of issues or alleged adverse disparate
impacts within the legal authority of recipients.
At the time EPA issued the Interim Guidance, EPA also solicited
public comment for a 90-day period. EPA received over 120 written
comments. In addition, EPA received stakeholder input through:
Meetings with a number of stakeholder representatives
including those from environmental justice groups, communities,
industry, state and local governments, and the civil rights community
to discuss their concerns and views on issues associated with the
Interim Guidance;
An advisory committee that provided a broad range of views
on a number of issues under consideration in the Interim Guidance
revision process;
A facilitated meeting with stakeholder group
representatives to receive more feedback on draft options under
consideration for inclusion in the Draft Revised Investigation
Guidance; and
Internal EPA and U.S. Department of Justice review
processes.
Based upon that input and the experience gained from processing and
investigating complaints during the intervening months, EPA is now
issuing the Draft Revised Investigation Guidance. The Draft Revised
Investigation Guidance, when final, will replace the Interim Guidance.
OCR has included substantially more detail throughout the Draft Revised
Investigation Guidance than was provided in the Interim Guidance to
better enable the reader to understand the approach that OCR expects to
take with Title VI administrative complaints challenging permits. The
Draft Revised Investigation Guidance is not intended to address every
situation that may arise in the interaction between Title VI and
environmental permitting. Instead, it explains how OCR generally
intends to process and investigate allegations of discriminatory
effects from environmental permitting.
In addition, OCR developed the Draft Recipient Guidance, which is
voluntary in nature, to offer suggestions to recipients about
approaches they could use to address potential Title VI issues before
complaints arise. The Draft Recipient Guidance complements the Draft
Revised Investigation Guidance by providing information and flexible
tools that may help recipients achieve compliance with Title VI. For
example, the document describes geographic area-wide approaches which
use active public participation processes to identify and prevent
pollution. The Draft Recipient Guidance also notes that the process
used by recipients to assess conditions, set goals, and track
reductions can provide important information for EPA to consider when
conducting a Title VI investigation. This type of data may be examined
by EPA and accorded due weight. In addition, EPA's intended approach
regarding permits that decrease pollution, which is described in the
Draft Revised Investigation Guidance, reduces the uncertainty
concerning permitting actions taken pursuant to such community-based
reduction efforts.
The Draft Recipient Guidance relies heavily on the work of the
Title VI Implementation Advisory Committee of EPA's National Advisory
Council for Environmental Policy and Technology (Title VI Advisory
Committee); the October 9, 1998, draft Proposed Elements of State
Environmental Justice Programs developed by the Environmental Council
of States; and available descriptions of state environmental justice
programs. The discussions of mitigation draw heavily from the Title VI
Implementation Advisory Committee report. Further, both the Draft
Revised Investigation Guidance and the Draft Recipient Guidance adopt
many of the principles agreed to by the Title VI Advisory Committee.
In fact, the Draft Recipient Guidance was written at the request of
the states and is intended to offer suggestions to assist state and
local recipients in developing approaches and activities that address
Title VI concerns. In addition to the steps described above, EPA
engaged in an extensive consultation process with elected state and
local officials, and other representatives of state and local
governments in the process of developing both the Draft Revised
Investigation Guidance and the Draft Recipient Guidance. Specifically,
EPA met with the National League of Cities in September 1998, the
National Association of Attorneys General in June 1999, and members of
the Local Government Advisory Committee and Small Communities Advisory
Subcommittee in September 1999.
The Draft Revised Investigation Guidance and the Draft Recipient
Guidance are non-binding policy statements that do not directly affect
the rights and responsibilities of state and local recipients. Instead,
they merely explain EPA's policy regarding existing obligations that
recipients accept when they receive EPA assistance. Those obligations
were established by Title VI, which as been in place since 1964, and by
EPA's implementing regulations, which were first promulgated in 1973
and require recipients to submit assurances of compliance with EPA's
regulations.
The Draft Revised Investigation Guidance is an internal EPA
document that concerns the manner in which OCR will conduct its Title
VI investigations. It is not a guidance that directs states to take any
action. The Draft Recipient Guidance does not require recipients to
develop Title VI-related approaches and activities. Moreover,
recipients that choose to develop Title VI-related approaches and
activities are in no way bound by the suggestions made in the Draft
Recipient Guidance. If a recipient develops Title VI-related approaches
or activities, then EPA intends to carefully consider the results of
that work and give it any appropriate weight it is due.
Responding to Concerns Raised About the Interim Guidance
A number of issues were raised during our outreach and comment
process. Stakeholders raised concerns that the Interim Guidance was
vague, lacked clarity and definitions, and failed to provide direction
on critical issues. The draft guidance documents respond to these
concerns.
First, the draft documents provide more detail and clarity than was
provided in the Interim Guidance. Plain language is used and more
detail provided in areas where comments suggested it was needed, such
as informal resolution and the disparity analysis. In addition, the
Draft Revised Investigation Guidance provides a clearer structure and
additional information about the basis for OCR's positions. Also, the
Draft Revised Investigation Guidance includes cross references to the
Draft Recipient Guidance and vice versa.
Second, the Draft Revised Investigation Guidance more clearly
explains the various steps of the adverse disparate impact analysis and
the actions that can be taken at each stage (e.g., how a finding of
adverse impact is expected to be reached, or when an
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allegation will likely be dismissed). Also, EPA has attached a
flowchart as an appendix to more fully explain the Title VI complaint
processing regulations at 40 CFR part 7, subpart E and how those govern
OCR's receipt and handling of complaints filed with EPA.
Third, more terms are defined by providing examples within the text
and including a glossary of terms as an attachment to each draft
guidance document.
Fourth, the draft documents contain guidance on issues that were
not included in the Interim Guidance or required further clarification.
They discuss tools to conduct an adverse impact analysis, and describe
EPA's intent to accord due weight to approaches by recipients that
reduce or eliminate adverse disparate impacts. The Draft Revised
Investigation Guidance also outlines EPA's intended approach regarding
permit actions that result in an actual and significant decrease in
emissions, and provides that such permit actions will likely not serve
as bases for findings of violation of Title VI.
Flexibility is also a key concept embodied in the draft documents.
For example, EPA recognizes that recipients have different Title VI
concerns, different amounts of resources, and different organizational
structures, so a ``one-size-fits-all'' Title VI program will not
adequately address all recipients needs. As a result, the Draft
Recipient Guidance offers a range of possible approaches to Title VI
issues and encourages recipients to develop other techniques.
In addition to the general matters described above, the key
elements of the Draft Recipient Guidance and some of the other specific
additions or changes to the Interim Guidance contained in the Draft
Revised Investigation Guidance are described below.
Draft Recipient Guidance
Entities applying for EPA financial assistance submit an assurance
with their application stating that they will comply with the
requirements of EPA's Title VI implementing regulations with respect to
their programs or activities. When the recipients receive the EPA
assistance, they accept the obligation to comply with EPA's Title VI
implementing regulations. The Draft Recipient Guidance is written for
the recipients of EPA financial assistance that implement environmental
permitting programs. It provides a framework to help recipients address
situations that might otherwise result in the filing of complaints
alleging violations of Title VI and EPA's Title VI implementing
regulations. In particular, it provides a framework designed to improve
a recipients' existing programs or activities and reduce the likelihood
or necessity for persons to file Title VI administrative complaints
with EPA alleging either: (1) Discriminatory human health or
environmental effects resulting from the issuance of permits; or (2)
discrimination during the permitting public participation process.
To ensure stakeholder involvement in the development of the Draft
Recipient Guidance, EPA Administrator Carol M. Browner established a
Title VI Implementation Advisory Committee in March 1998. The Title VI
Advisory Committee was comprised of representatives of communities,
environmental justice groups, state and local governments, industry,
and other interested stakeholders. The committee reviewed and evaluated
existing techniques that EPA funding recipients, such as state and
local environmental permitting agencies, may use to administer
environmental permitting programs in compliance with Title VI. It was
also asked to make recommendations to help EPA financial assistance
recipients design programs or approaches that will address Title VI
concerns early in the permit process. The core components of the Draft
Recipient Guidance are based, in part, on the March 1, 1999, Report of
the Title VI Implementation Advisory Committee: Next Steps for EPA,
State, and Local Environmental Justice Programs.
The Draft Recipient Guidance is divided into two main sections. The
first section describes several general approaches recipients may want
to adopt to help identify and resolve issues that could lead to the
filing of Title VI complaints. The second section provides guidance on
individual activities that EPA encourages recipients to consider
integrating into their permitting programs.
Title VI Approaches and Activities
The Draft Recipient Guidance suggests a number of approaches and
individual activities recipients can consider adopting and implementing
to address Title VI-related concerns. The suggested Title VI approaches
include: (1) A Comprehensive Approach that integrates all or most of
the Title VI activities described in the Draft Recipient Guidance; (2)
an Area-Specific Approach to identify geographic areas where adverse
disparate impacts may exist; and (3) a Case-by-Case Approach or permit-
specific approach through which a recipient develops criteria to
evaluate permit actions that are likely to raise Title VI concerns. The
individual Title VI activities described in the Draft Recipient
Guidance include effective public participation, intergovernmental
involvement, and alternative dispute resolution.
The approaches described are not intended to represent all those
recipients may adopt, nor are they intended to be mutually exclusive.
Recipients should determine the proper mix and extent of appropriate
Title VI activities and approaches. Recipients are not required to
implement any of the Title VI activities or approaches described in the
Draft Recipient Guidance; they should develop and implement any
approaches for addressing Title VI issues that they believe are
appropriate. In any case, recipients will be held accountable for
operating their programs in compliance with the non-discrimination
requirements of Title VI and EPA's implementing regulations as
determined by OCR.
Draft Revised Investigation Guidance
Acceptance/Rejection
EPA determines whether to accept a complaint for investigation or
to reject it based on a set of jurisdictional criteria listed in its
Title VI implementing regulations. The acceptance of a complaint for
investigation does not mean that there has been a finding of violation
of Title VI. Because the Interim Guidance did not list all of the steps
of complaint processing or all of the time frames outlined in EPA's
Title VI implementing regulations, some commenters thought that EPA was
deviating from the administrative structure the regulations created or
had eliminated some of the time frames. To address that
misunderstanding, the Draft Revised Investigation Guidance incorporates
all of the major steps and time frames mentioned in the Title VI
regulations.
The Draft Revised Investigation Guidance eliminates the term
``complete or properly pleaded complaint'' as a criterion for
acceptance because it led to unnecessary confusion. In addition, the
discussion of ``timeliness'' includes substantially more detail to
assist complainants in filing within the time allowed. This section
also explains that premature complaints and complaints involving
certain concurrent litigation will likely be rejected. Furthermore, the
Draft Revised Investigation Guidance explains that OCR expects to
dismiss a complaint if the permit that triggered the complaint is
withdrawn or revoked, or if a final decision is made by the permittee
not to operate under that
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permit before OCR completes its investigation or before any activities
allowed by the permit have begun.
Investigative Procedures
The Draft Revised Investigation Guidance adds a brief section on
investigative procedures. This section covers a number of important
topics such as the submission of additional information relevant to the
investigation by recipients and complainants. This information will be
reviewed by EPA and may be accorded due weight in its investigation,
based on a series of listed factors. It also describes when allegations
submitted by the complainant after the initial complaint will be
treated as amendments to the existing complaint or will be considered a
new and separate complaint. Furthermore, it explains that neither the
filing of a Title VI complaint nor the acceptance of one for
investigation by OCR stays the permit at issue.
Informal Resolution
EPA's Title VI regulations call for OCR to pursue informal
resolution of administrative complaints wherever practicable. EPA
believes cooperative efforts between permitting agencies and
communities frequently offer the best means of addressing potential
problems. However, as several commenters pointed out, the Interim
Guidance contained little explanation of how OCR intended to approach
informal resolution. Therefore, the Draft Revised Investigation
Guidance describes the various types of informal resolution that are
possible. The Draft Recipient Guidance includes a description of
alternative dispute resolution (ADR) techniques that EPA will use, as
appropriate, and encourages recipients to explore these techniques to
assist in resolving concerns that might otherwise result in Title VI
complaints.
Resolving Complaints
EPA believes flexibility is critical when considering measures that
eliminate or reduce adverse disparate impacts to the extent required by
Title VI. Often, Title VI concerns are raised communities believe they
are suffering from adverse effects caused by multiple sources. For
those communities, filing a Title VI complaint about a permit for a new
facility or the most recent modification to an existing one, is a way
to focus attention on the cumulative impacts of a number of the
recipient's permitting decisions. As the Draft Revised Investigation
Guidance states, EPA believes it will be a rare situation where the
permit that triggered the complaint is the sole reason a discriminatory
effect exists; therefore, denial of the permit at issue will not
necessarily be an appropriate solution. Efforts that focus on all
contributions to the disparate impact, not just the permit at issue,
will likely yield the most effective long-term solutions.
The Draft Revised Investigation Guidance contains a more detailed
discussion on resolving complaints than the Interim Guidance. In
particular, it focuses primarily on measures that recipients could
offer to perform during the course of informal resolution attempts with
complainants or OCR. It also eliminates the reference to ``supplemental
mitigation projects'' to avoid confusion with EPA's environmental
programs. The Draft Revised Investigation Guidance suggests a variety
of possible measures to eliminate or reduce to the extent required by
Title VI any adverse disparate impacts, including additional pollution
control on the source, use of pollution prevention techniques, or
emission offsets from other pollution sources.
The Draft Revised Investigation Guidance and the Draft Recipient
Guidance also encourage recipients to identify geographic areas where
adverse disparate impacts may exist and to enter into agreements (area-
specific agreements) with the affected communities and stakeholders to
reduce pollution impacts in those geographic areas over time. The Draft
Revised Investigation Guidance also describes several elements that
would be considered in decisions regarding voluntary compliance efforts
sought by EPA after a formal finding of noncompliance, including the
cost and technical feasibility of such efforts.
Due Weight
Many commenters, particularly those representing state agencies and
industry, asked EPA to provide incentives for recipients to develop
pro-active Title VI-related programs. In particular, some asked EPA to
recognize, and to the maximum extent possible rely on, the results of
the recipient's Title VI approaches or activities in assessing
complaints filed with EPA. The Investigative Procedures section of the
Draft Revised Investigation Guidance and the Draft Recipient Guidance
discuss the issues of deference to recipients' activities and ``due
weight'' that EPA may provide in the context of adverse disparate
impact investigations. Moreover, the Draft Recipient Guidance contains
a discussion of the circumstances under which OCR might accord a public
participation process due weight.
Under the Civil Rights Act of 1964, EPA is charged with assuring
compliance with Title VI and cannot delegate its responsibility to
enforce Title VI to its recipients. Therefore, OCR cannot defer in the
entirety to a recipient's own assessment that it has not violated Title
VI or EPA's regulations, or to a recipient's assertion that a Title VI
program has been followed. Nevertheless, under certain circumstances,
EPA can consider the results of recipients' analyses and give them
appropriate due weight.
For example, during the course of an investigation, recipients may
submit analyses to support their position that an adverse disparate
impact does not exist and, under certain circumstances, OCR may give
due weight to those analyses. OCR would expect that a relevant adverse
impact analysis or a disparity analysis would, at a minimum, generally
conform to accepted scientific approaches. It may focus on a spectrum
of potential adverse impacts, such as that described in the analytical
framework set forth in the Draft Revised Investigation Guidance, or may
be more focused, such as the impact of a specific pollutant on nearby
populations (e.g., a study regarding the impact of lead emissions on
blood lead levels in the surrounding area).
In the Draft Recipient Guidance, EPA encourages recipients to
identify geographic areas where adverse disparate impacts may exist and
to enter into agreements with affected residents and stakeholders to
eliminate or reduce, to the extent required by Title VI, adverse
disparate impacts in those specific areas. Collaboration with
communities and other appropriate stakeholders to develop the criteria
used to identify the geographic areas and in designing potential
solutions to address any adverse disparate impacts will be an important
element of the approach.
The Draft Revised Investigation Guidance describes the factors OCR
will use to evaluate the appropriateness and validity of the analysis
or the area-specific agreements and to assess the overall
reasonableness of their conclusions or projected results. The Draft
Revised Investigation Guidance also explains that more weight will be
given to analyses and area-specific agreements that are relevant to the
Title VI concerns in the complaint and have sufficient depth, breadth,
completeness, and accuracy. Where a recipient or complainant submits a
relevant analysis or area-specific agreement that meets the factors
described in the Draft Revised Investigation Guidance, OCR expects to
give the results due weight and rely on it in finding the recipient in
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compliance or not in compliance with EPA's Title VI regulations.
Disparate Impact Analysis
In order to find a recipient in violation of EPA's Title VI
implementing regulations, OCR would assess whether the impact is both
adverse and borne disproportionately by a group of persons based on
race, color, or national origin, and, if so, whether that impact is
justified. The adverse disparate impact analytical framework in the
Interim Guidance did not describe how EPA would determine what
constituted an adverse impact for Title VI purposes. Rather, the
Interim Guidance focused attention on the disparity analysis. The Draft
Revised Investigation Guidance not only addresses this gap, but also
expands the description of the disparity analysis.
EPA has remained mindful that no single analysis or definition of
adverse disparate impact is possible due to the differing nature of
impacts (e.g., cancer risk, acute health effects, odors) and the
various environmental media (e.g., air, water) that may be involved.
EPA did not set an across-the-board definition of what is an adverse
impact, but instead the Draft Revised Investigation Guidance provides
more clarity about how OCR will determine whether it exists. The Draft
Revised Investigation Guidance describes how EPA will use environmental
laws, regulations, policy, and science as touchstones for determining
thresholds for what is adverse.
The Draft Revised Investigation Guidance indicates that in
considering adverse disparate impact claims, OCR generally expects to
consider only those types of impacts affected by factors within the
recipient's authority under applicable law. The Draft Revised
Investigation Guidance also indicates that EPA would generally not
initiate an investigation of allegations of discriminatory effects from
emissions, including cumulative emissions, where the permit action that
triggered the complaint significantly decreases overall emissions at
the facility or where the permit action that triggered the complaint
significantly decreases pollutants of concern named in the complaint or
all the pollutants EPA reasonably infers are the potential source of
the alleged impact.
The Draft Revised Investigation Guidance provides significantly
more information about the process proposed to identify and determine
the characteristics of the affected population. It also describes the
process of conducting an analysis to determine whether a disparity
exists between the affected population and an appropriate comparison
population, and discusses comparison methods and criteria to be used in
assessing the significance of any disparities identified.
The ``initial finding of disparate impact'' suggested by the
Interim Guidance has been deleted. It was intended to provide an
opportunity for recipients to submit input during OCR's assessment of
the alleged disparate impacts. The Draft Revised Investigation Guidance
omits the initial finding of disparate impact and, instead, focuses
more upon the recipient's opportunity to provide comments following
acceptance of a complaint.
Justification
EPA has also elaborated on the Interim Guidance's explanation of
what may constitute a substantial legitimate justification. While the
Interim Guidance, uses the term ``articulable value,'' EPA has
eliminated this term from the Draft Revised Investigation Guidance's
Justification section. Instead, the Draft Revised Investigation
Guidance focuses on determining whether specific factors, such as
public health or environmental benefits, and when economic benefits
might constitute a substantial legitimate justification.
A recipient will have the opportunity to ``justify'' the decision
to issue the permit notwithstanding the adverse disparate impact. To
justify the action, the recipient would show that it is reasonably
necessary to meet a goal that is legitimate, important, and integral to
the recipient's institutional mission. Because investigations conducted
under the Draft Revised Investigation Guidance are about permitting
decisions by environmental agencies, OCR expects to consider the
provision of public health or environmental benefits (e.g., waste water
treatment plant) to the affected population to be an acceptable
justification because such benefits are generally legitimate,
important, and integral to the recipient's mission.
The Draft Revised Investigation Guidance indicates that OCR will
likely consider broader interests, such as economic development, from
the permitting action to be an acceptable justification, if the
benefits are delivered directly to the affected population and if the
broader interest is legitimate, important, and integral to the
recipient's mission. Also, in its evaluation of the offered
justification, OCR will generally consider not only the recipient's
perspective, but the views of the affected community in its assessment
of whether the permitted facility, in fact, will provide direct,
economic benefits to the community. However, a justification may be
rebutted if EPA determines that a less discriminatory alternative
exists.
Public Comment Period
EPA will accept written comments on the Draft Revised Investigation
Guidance and the Draft Recipient Guidance for a 60-day period. All
comments must be received in writing by OCR before August 28, 2000.
Comments received by the Agency will be carefully considered in the
revision of the draft guidance documents. Public comments should be
mailed to Title VI Guidance Comments, Office of Civil Rights (1201A),
1200 Pennsylvania Ave NW., Washington DC, 20460, or submitted to the
following e-mail address: [email protected]. Please include your name
and address, and, optionally, your affiliation.
Additionally, EPA's Office of Civil Rights will coordinate six
national public listening sessions to receive additional feedback on
the Draft Recipient Guidance and the Draft Revised Investigation
Guidance. Each of these listening sessions will be attended by the
Director of the Office of Civil Rights and key regional personnel.
Members of the public wishing to make oral comments during the public
listening session will be limited to no more than five (5) minutes, and
must register at the meeting site the day of the conference. Seating
will be limited and available on a first-come, first-served basis. The
dates, times, and locations of the public listening sessions are as
follows: June 26 in Washington, DC from 9:00 a.m. until 12:00 p.m. and
from 6:00 p.m. until 9:00 p.m. at the Ronald Reagan Building/
International Trade Center, 1300 Pennsylvania Avenue NW., Polaris Suite
(Concourse Level); July 17 in Dallas, Texas from 4:00 p.m. until 7:00
p.m. at U.S. EPA--Region 6, 1445 Ross Avenue, 12th Floor; July 18 in
Chicago, Illinois from 5:00 p.m. until 8:00 p.m. at U.S. EPA--Region 5,
77 West Jackson Boulevard, Room 331; August 1 in New York, New York
from 4:00 p.m. until 7:00 p.m. at U.S. EPA--Region 2, 290 Broadway,
Room 27A; August 2 in Los Angeles, California from 6:00 p.m. until 9:00
p.m. at the Carson Community Center, 801 East Carson Street; and August
3 in Oakland, California from 6:00 p.m. until 9:00 p.m. at the Henry J.
Kaiser Convention Center, 10th Street (near the Lake Merritt BART
station).
If anyone attending the listening sessions needs special
accommodations (i.e., sign language interpreter, alternative text
format for materials), please contact Mavis Sanders of the Office of
Civil Rights at (202) 564-7272,
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or send an e-mail message to [email protected] at least three
business days before the scheduled listening session. Information
regarding these listening sessions can also be found on the OCR Web
site at http://www.epa.gov/civilrights/reviguid2.htm.
B. Draft Title VI Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs (Draft Recipient
Guidance)
I. Introduction
A. Purpose of the Recipient Guidance
B. Title VI of the Civil Rights Act of 1964, as Amended
C. Coordination with Draft Revised Investigation Guidance
D. Stakeholder Involvement
E. EPA's Guiding Principles for Title VI Recipient Guidance
F. Scope and Flexibility
G. Title VI and Tribes
II. Title VI Approaches and Activities
A. Title VI Approaches
1. Comprehensive Approach
2. Area-Specific Approaches
3. Case-by-Case Approach
B. Title VI Activities
1. Train Staff
2. Encourage Meaningful Public Participation and Outreach
3. Conduct Impact and Demographic Analyses
a. Availability of Demographic Data and Exposure Data
b. Potential Steps for Conducting Adverse Disparate Impact
Analyses
c. Availability of Tools and Methodologies for Conducting
Adverse Impact Analyses
d. Relevant Data
e. Resources for Assessing Significance of Impact
f. Conducting Disparity Analyses and Assessing Significance
4. Encourage Intergovernmental Involvement
5. Participate in Alternative Dispute Resolution
6. Reduce or Eliminate Alleged Adverse Disparate Impact
7. Evaluate Title VI Activities
C. Due Weight
III. Conclusion
IV. Acronyms and Abbreviations
V. References
Glossary of Terms
I. Introduction
A. Purpose of the Recipient Guidance
This draft guidance is written for the recipients \1\ of U.S.
Environmental Protection Agency (EPA) financial assistance that
implement environmental permitting programs (``you''). It provides a
framework to help you address situations that might otherwise result in
the filing of complaints alleging violations of Title VI of the Civil
Rights Act of 1964, as amended (Title VI) and EPA's Title VI
implementing regulations.\2\ In particular, it provides a framework
designed to improve your existing programs or activities and reduce the
likelihood or necessity for persons to file Title VI administrative
complaints with EPA alleging either: (1) discriminatory human health or
environmental effects resulting from the issuance of permits; or (2)
discrimination during the permitting public participation process.
Cooperative efforts between permitting agencies and communities,
whether or not in the context of Title VI-related approaches,
frequently offer the best means of addressing potential problems.
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\1\ The underlined terms are defined or explained in the
attached Glossary.
\2\ Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241
(codified as amended in scattered sections of 42 U.S.C.).
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B. Title VI of the Civil Rights Act of 1964, as Amended
Title VI prohibits discrimination based on race, color, or national
origin under any program or activity of a Federal financial assistance
recipient. Title VI itself prohibits intentional discrimination. In
addition, Congress intended that its policy against discrimination by
recipients of Federal assistance be implemented, in part, through
administrative rulemaking.\3\ Title VI ``delegated to the agencies in
the first instance the complex determination of what sorts of disparate
impacts upon minorities constituted significant social problems, and
were readily enough remediable, to warrant altering the practices of
the Federal grantees that had produced those impacts.'' \4\
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\3\ 42 U.S.C. 2000d-1.
\4\ Alexander v. Choate, 469 U.S. 287, 292-94 (1985).
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EPA issued Title VI implementing regulations (see 40 CFR part 7) in
1973 and revised them in 1984.\5\ Under EPA's Title VI implementing
regulations, you are prohibited from using ``criteria or methods of
administering its program which have the effect of subjecting
individuals to discrimination because of their race, color, [or]
national origin.'' \6\ As a result, you may not issue permits that are
intentionally discriminatory or have a discriminatory effect based on
race, color, or national origin.
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\5\ 38 FR 17968 (1973), as amended by 49 FR 1656 (1984)
(codified at 40 CFR part 7).
\6\ 40 CFR 7.35(b).
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When you applied for EPA financial assistance, EPA's Title VI
implementing regulations required that you submit an assurance with
your application that you will comply with the requirements of EPA's
Title VI implementing regulations with respect to your programs or
activities. When EPA approves an application for EPA assistance and you
receive the EPA funds, you accept the obligation of your assurance to
comply with EPA's Title VI implementing regulations. The primary means
of enforcing compliance with Title VI is through voluntary compliance
agreements. Fund suspension or termination is a means of last resort.
Executive Order 12250 requires agencies to issue appropriate
implementing directives, either in the form of policy guidance or
regulations that are consistent with requirements proscribed by the
Attorney General.\7\ Also, the number of administrative complaints
filed with EPA alleging discrimination prohibited under Title VI and
EPA's Title VI implementing regulations has increased over the past
several years. The growing number of complaints and the requests of
state and local agencies for guidance, provided the impetus to develop
this draft guidance. The guidance provides you with recommendations on
individual activities and more comprehensive approaches designed to
identify and resolve circumstances that may lead to complaints being
filed with EPA under Title VI.
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\7\ Exec. Order No. 12250, 45 FR 72995 (1980) (Section 1-402).
The head of each Federal agency is required to ensure compliance
with Executive Orders, to the extent permitted by existing law.
Executive Orders are signed by the President of the United States.
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C. Coordination With Draft Revised Investigation Guidance
Along with the Draft Recipient Guidance, EPA is concurrently
issuing the Draft Revised Guidance for Investigating Title VI
Administrative Complaints Challenging Permits (Draft Revised
Investigation Guidance). The Draft Revised Investigation Guidance
describes the framework for how EPA's Office of Civil Rights (OCR)
plans to process Title VI administrative complaints filed with EPA.
Once finalized, the Draft Revised Investigation Guidance will replace
the Interim Guidance for Investigating Title VI Administrative
Complaints Challenging Permits (Interim Guidance) issued in February
1998. The Draft Revised Investigation Guidance and the Draft Recipient
Guidance were developed concurrently to ensure consistency.
Furthermore, each draft Title VI guidance document references
appropriate sections of the other.
The attached Summary of Key Stakeholder Issues Concerning EPA Title
VI Guidance document provides an additional discussion that addresses
[[Page 39656]]
questions and concerns expressed in comments the Agency has received on
the issue of Title VI guidance.
D. Stakeholder Involvement
To ensure stakeholder involvement in the development of the Draft
Recipient Guidance, EPA Administrator Carol M. Browner established a
Title VI Implementation Advisory Committee (Title VI Advisory
Committee) under the National Advisory Council for Environmental Policy
and Technology (NACEPT) in March 1998. The Title VI Advisory Committee
was comprised of representatives of communities, environmental justice
groups, state and local governments, industry, and other interested
stakeholders. The EPA asked the committee to review and evaluate
existing techniques that EPA funding recipients, such as state and
local environmental permitting agencies, may use to administer
environmental permitting programs in compliance with Title VI. The EPA
also asked the committee to make recommendations to help recipients of
EPA financial assistance design activities or approaches that will
address Title VI concerns early in the permit process.
The core components of the Draft Recipient Guidance are based, in
part, on the April 1999, Report of the Title VI Implementation Advisory
Committee: Next Steps for EPA, State, and Local Environmental Justice
Programs. The report is available via the OCR Web site at http://www.epa.gov/civilrights/t6faca.htm. EPA also considered information
from several other sources including:
Public comments on the Interim Guidance received by OCR;
Recommendations and feedback provided to EPA staff during
meetings, over the past 18 months, with representatives of communities
(including environmental justice organizations), representatives of
state and local governments, representatives of industry, and other
interested stakeholders;
Available descriptions of state environmental justice
programs; and
The Environmental Council of States (ECOS) October 9,
1998, draft document entitled Proposed Elements of State Environmental
Justice Programs.
E. EPA's Guiding Principles for Title VI Recipient Guidance
In implementing Title VI and developing this draft guidance, EPA
adheres to the following principles: \8\
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\8\ The guiding principles were adapted, in part, from the
consensus principles identified by the Title VI Implementation
Advisory Committee under EPA's National Advisory Council for
Environmental Policy and Technology.
---------------------------------------------------------------------------
All persons regardless of race, color, or national origin
are entitled to a safe and healthful environment.
Strong civil rights enforcement is essential.
Enforcement of civil rights laws and environmental laws
are complementary, and can be achieved in a manner consistent with
sustainable economic development.
Potential adverse cumulative impacts from stressors should
be assessed, and reduced or eliminated wherever possible.
Research efforts by EPA and state and local environmental
agencies into the nature and magnitude of exposures, stressor hazards,
and risks are important and should be continued.
Decreases in environmental impacts through applied
pollution prevention and technological innovation should be encouraged
to prevent, reduce, or eliminate adverse disparate impacts.
Meaningful public participation early and throughout the
decision-making process is critical to identify and resolve issues, and
to assure proper consideration of public concerns.
Early, preventive steps, whether under the auspices of
state and local governments, in the context of voluntary initiatives by
industry, or at the initiative of community advocates, are strongly
encouraged to prevent potential Title VI violations and complaints.
Use of informal resolution techniques in disputes
involving civil rights or environmental issues yield the most desirable
results for all involved.
Intergovernmental and innovative problem-solving provide
the most comprehensive response to many concerns raised in Title VI
complaints.
F. Scope and Flexibility
The statements in this document are intended solely as guidance.
This document is not intended, nor can it be relied upon, to create any
rights or obligations enforceable by any party in litigation with the
United States. This guidance may be revised to reflect changes in EPA's
approach to implementing Title VI. In addition, this guidance does not
alter in any way, a regulated entity's obligation to comply with
applicable environmental laws.
This guidance suggests a flexible framework for a Title VI approach
and individual Title VI activities. EPA recognizes that a ``one-size-
fits-all'' Title VI approach will not adequately address all your
needs. Recipients may have different Title VI concerns in communities
within their jurisdiction, different amounts of resources, and
different organizational structures. You may choose the activities or
approaches that are most relevant to address your needs. EPA also
recognizes that some of you have already begun to address Title VI
concerns through your existing programs. Therefore, this guidance:
Presents you with a menu of possible options from which
you may choose to address Title VI concerns;
Provides suggestions to those of you who choose to develop
formal Title VI approaches or to amend your permit process to include
or revise Title VI considerations without developing formal Title VI
approaches; and
Provides flexibility for you, if you choose to broaden the
scope of your Title VI approaches or activities to improve other areas,
such as enforcement or hazardous waste clean-up.
While this draft guidance is intended to focus on issues related to
permitting, you may also consider developing proactive approaches to
promote equality in monitoring and enforcement of environmental laws
within your jurisdiction.
G. Title VI and Tribes
The applicability of Title VI and EPA's implementing regulations to
Federally-recognized tribes will be addressed in a separate document
because the subject involves unique issues of Federal Indian law.
II. Title VI Approaches and Activities
The following discussion provides guidance to you on the types of
activities and approaches that EPA believes you may wish to consider
adopting and implementing as part of a strategy to address Title VI-
related claims and issues that arise in the environmental permitting
context. Identifying and resolving these concerns early in the
permitting process will likely reduce the number of Title VI complaints
filed with EPA and may also lead to improvements in public
participation processes, as well as public health and environmental
benefits. You are not required to adopt such activities or approaches,
but outcomes that result from the activities or approaches may be
considered in the analysis of Title VI complaints that relate to your
programs, activities, or methods of administration. You may choose to
select one or more of the activities described in section II.B. below,
implement some of the more comprehensive approaches described in
section II.A., or develop and implement approaches or activities not
listed in
[[Page 39657]]
this guidance that would likely address potential Title VI issues.
A. Title VI Approaches
As a recipient, you must decide which activities or techniques are
most relevant to address your needs. You may already have begun to
address Title VI concerns through your existing programs and may have
different amounts of resources or different types of organizational
structures from other recipients. There are several possible approaches
described below; however, they are not intended to represent all
possible approaches you may want to adopt. It is also important to note
that the approaches described below are not mutually exclusive. You can
combine activities and approaches described below to address a range of
potential issues that might result in Title VI complaints. In other
words, if you implement an area-specific approach, you may also want to
develop a method to identify and address Title VI concerns related to a
specific permit that is not covered by an area-specific agreement.
1. Comprehensive Approach
You may want to adopt a broad approach that will improve your
existing permitting process, rather than addressing Title VI concerns
on a case-specific or area-specific basis, through an alternative
process. You may elect to adopt a comprehensive approach that
integrates all of the Title VI activities described below into your
existing permitting process. EPA expects that such comprehensive
approaches will offer recipients the greatest likelihood of adequately
addressing Title VI concerns, thereby minimizing the likelihood of
complaints.
2. Area-Specific Approaches
You may choose to develop an approach to identify geographic areas
where adverse disparate health impacts or other potential Title VI
concerns (e.g., where translation of documents may be necessary) may
exist. Collaboration with communities and other appropriate
stakeholders to develop the criteria used to identify the geographic
areas will be an important element of the approach. Once the areas are
identified, you would work with the affected communities and
stakeholders to develop an agreement to reduce and eliminate adverse
disparate impacts or other Title VI concerns in those specific areas.
For example, if a recipient, in collaboration with communities and
other appropriate stakeholders, identifies a section of a city as an
area where permitted emissions are contributing to discriminatory
health effects on African Americans. The recipient then might convene a
group of stakeholders with the ability to help solve the identified
lead problem, including owners of facilities with lead emissions, other
state and local government agencies, affected community members, and
non-governmental organizations. The group may develop an agreement
where each party agrees to particular actions that will eliminate or
reduce the adverse lead impacts in that specific area.
Another example might be an area-specific agreement that
establishes a ceiling on pollutant releases with a steady reduction in
those pollutants over time. The period of time over which those
reductions should occur will likely vary with a number of factors,
including the magnitude of the adverse disparate impact, the number and
types of sources involved, the scale of the geographic area, the
pathways of exposure, and the number of people in the affected
population. It is worth noting, however, that pre-existing obligations
to reduce impacts imposed by environmental laws (e.g., ``reasonable
further progress'' as defined in Clean Air Act section 171(1)) might
not be sufficient to constitute an agreement meriting due weight.\9\
Also, area-specific agreements need not be limited to one environmental
media (e.g., air emissions), they may also cover adverse disparate
impacts in several environmental media (e.g., air and water).
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\9\ See sections V.B.2. of the Draft Revised Investigation
Guidance (discussing due weight and any subsequent reliance OCR may
give in the course of its investigation to area-specific
agreements).
---------------------------------------------------------------------------
3. Case-by-Case Approach
For some recipients, permit-specific approaches may also be
advisable. You could develop general criteria to evaluate permits that
could highlight those permit actions that are likely to raise Title VI
concerns. Or, you may focus your efforts on specific permitting actions
where Title VI concerns are actually raised and then employ alternative
dispute resolution (ADR) techniques for those situations to reduce or
eliminate them.\10\ You might also be made aware of Title VI concerns
in particular permitting actions through any number of means,
including, but not limited to, comments received on the permit
application, prior work with residents of the area, and other outreach
efforts performed by the recipient.
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\10\ See section II.B.5. (discussing ADR).
---------------------------------------------------------------------------
As a recipient, you determine the proper mix and extent of
appropriate Title VI activities and approaches. While you are not
required to implement the Title VI activities or approaches described
in this guidance, you are required to operate your programs in
compliance with the non-discrimination requirements of Title VI and
EPA's implementing regulations.
For claims and analyses related to disparate impacts, EPA expects
that the analysis would generally conform to the analytical framework
set forth in the Draft Revised Investigation Guidance in order for EPA
to accord it due weight.
B. Title VI Activities
As a recipient, you may should consider integrating the following
activities into permitting programs to help identify and resolve issues
that could lead to the filing of Title VI complaints:
1. Staff training--to help you meet your Title VI responsibilities;
2. Encourage effective public participation and outreach--to
provide permitting and public participation processes that occur early,
and are inclusive and meaningful;
3. Conduct adverse impact and demographic analyses--to analyze new
and existing sources, stressors, and adverse impacts with relevant
demographic information, especially potential cumulative adverse
impacts, to provide confidence that Title VI concerns are identified
and appropriately addressed;
4. Encourage intergovernmental involvement--to bring together all
agencies and parties that may contribute to identifying and addressing
stakeholder concerns to reach innovative and comprehensive resolutions;
5. Participate in alternative dispute resolution--to involve both
the community and recipient in an informal process to resolve Title VI
concerns;
6. Reduce or eliminate the alleged adverse disparate impact(s)--to
reduce or eliminate identified or potential adverse human health or
environmental impacts; and
7. Evaluate Title VI activities--to identify progress and areas in
need of improvement.
1. Train Staff
The success of Title VI activities will depend on your agency
staff's knowledge, credibility, and actions. Given the nature of Title
VI concerns, a team approach that includes, at a minimum, permitting
and community liaison functions may likely be the most effective. Other
team members may include staff with specialized knowledge or experience
such as risk
[[Page 39658]]
assessors. You may not necessarily have to hire new staff in order to
address Title VI concerns. You may consider using existing staff and
training them about Title VI. OCR believes that an effective staff
training program may address the following issues:
1. Your Title VI responsibilities, Title VI approaches or
activities you have adopted to assist in meeting those
responsibilities, and environmental permitting programs;
2. Cultural and community relations sensitization to establish and
maintain the trust and mutual respect between you and communities;
3. Skills and techniques to enable your staff to communicate
effectively with communities and then relay community concerns to your
agency;
4. Exposure, risk, and demographic analysis techniques, cumulative
impact assessments, and ongoing technical advances relevant to
conducting disparate impact analyses; and
5. Alternative dispute resolution techniques to enable your staff
to design and carry out a collaborative and informal process that can
help resolve Title VI concerns.
2. Encourage Meaningful Public Participation and Outreach
Early, inclusive, and meaningful public involvement in the
permitting process will likely help to reduce the filing of Title VI
complaints alleging that the public participation process for a permit
was discriminatory. It is possible to have a violation of Title VI or
EPA's Title VI regulations based solely on discrimination in the
procedural aspects of the permitting process without a finding of
discrimination in the substantive outcome of that process, such as
discriminatory human health or environmental effects. Likewise, it is
possible to have a violation due to discriminatory human health or
environmental effects without the presence of discrimination in the
public participation process.
An effective public participation process:
Seeks out and facilitates the involvement of individuals
who will be potentially affected by permitting decisions;
Ensures that the public is involved early in the process;
Provides participants in the process with the information
they need to participate in a meaningful way;
Ensures that public concerns are appropriately considered;
and
Communicates to participants in the process how their
input was, or was not, used.
More specifically, an effective public participation process is one
that:
Is early and inclusive:
Engages the public during the pre-permitting process, as
well as during the permitting process, whenever possible;
Includes community participants that represent the
spectrum of views;
Uses communication methods likely to reach the affected
community (e.g., insert information with utility bills; place public
service announcements on local radio shows; and place notices on
bulletin boards in grocery stores, houses of worship, community
newspapers, and community centers);
Schedules meeting times and places that are convenient for
residents who work and those who use public transportation;
Schedules meeting places that are accessible to persons
with disabilities; and
Avoids creating schedule conflicts with other community or
cultural events, whenever possible.
Is meaningful:
Uses an open and transparent process;
Provides understandable information necessary for
effective community participation (Writing User-Friendly Documents and
other guidance on how to write in plain language are available from the
Plain Language Action Network (PLAN) on the Internet at http://www.plainlanguage.govE);
Provides supplemental technical information (e.g., trend
and comparison data, background on types of health effects, concepts of
exposure assessment) and technical assistance to make data more
meaningful;
Takes reasonable steps to communicate,\11\ in written
documents as well as orally, in languages other than English, when
appropriate for the community; \12\ and
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\11\ A recipient's failure to take reasonable steps to provide a
``meaningful opportunity'' for limited English speaking individuals
to effectively participate in its programs and activities can
constitute discrimination prohibited by Title VI. See Lau v,
Nichols, 414 U.S. 563 (1974). Further, EPA's Title VI regulations
state that ``[a] recipient shall not use criteria or methods of
administering its program which * * * have the effect of defeating
or substantially impairing accomplishment of the objective of the
program with respect to individuals of a particular race, color,
[or] national origin.'' 40 CFR 7.35(b).
\12\ See DOJ's regulation entitled ``Coordination of Enforcement
of Non-discrimination in Federally-Assisted Programs,'' 28 CFR
subpart F, specifically section 42.405(d)(1) for a discussion of
factors recipients should consider when determining whether
translation for limited English speaking populations is necessary.
---------------------------------------------------------------------------
Provides clear explanations and reasons for the decisions
made with respect to the issues raised by the community.
There are a number of publications describing effective public
participation techniques. The publications listed below may provide
useful information as you assess your Title VI activities:
The Model Plan for Public Participation developed by the
EPA National Environmental Justice Advisory Council, a Federal Advisory
Committee to the U.S. EPA. (For more information on the EPA National
Environmental Justice Advisory Council, contact the EPA Office of
Environmental Justice (OEJ) at 202-564-2515, or visit the OEJ Web site
at
http://es.epa.gov/oeca/main/ej/index.html);
American Society for Testing and Materials (ASTM) Standard
Guide to the Process of Sustainable Brownfields Redevelopment (ASTM
Standard E-1984-98). (For more information on this standard, contact
ASTM at 610-832-9585. The ASTM Web site location is http://www.astm.org);
Report of the Title VI Implementation Advisory Committee:
Next Steps for EPA, State, and Local Environmental Justice Programs
(Available on line as an Acrobat format pdf file at (http://es.epa.gov/oeca/oej/t6report.pdf);
EPA's 1998 Final Supplemental Environmental Projects
Policy contains information on the public's opportunity to participate
in the consideration of Supplemental Environmental Projects (http://www.epa.gov/oeca/sep/);
EPA's 1998 Guidance for Incorporating Environmental
Justice Concerns in EPA's NEPA Compliance Analyses contains a
discussion regarding public participation in Section 4 (pages 39-43)
(http://es.epa.gov/oeca/ofa/ejepa.html); and
EPA's 1996 Resource Conservation and Recovery Act (RCRA)
Public Participation Manual explains how public participation works in
the permitting process and also contains useful information for public
participation in non-RCRA environmental activities (http://www.epa.gov/epaoswer/hazwaste/permit/pubpart).
3. Conduct Impact and Demographic Analyses
The ability to analyze new and existing potentially adverse
impacts, together with relevant demographic information concerning
receptor populations (i.e., populations that may be exposed to
stressors), will often help identify potential Title VI concerns and
assist in appropriately addressing them. Potential and existing impacts
may
[[Page 39659]]
involve a broad spectrum of concerns. Although there is no single place
to obtain access to data sources and tools needed to address these
concerns, and some are incomplete or still being developed, major
assessment tools and data are available. EPA has developed several Web
sites that may help identify existing and emerging resources, including
the:
EnviroFacts data warehouse (http://www.epa.gov/enviro/);
Environmental Quality (http://www.epa.gov/ceis/);
Community-Based Environmental Protection (http://www.epa.gov/ecocommunity/);
National Center for Environmental Assessment (http://www.epa.gov/ncea/); and
Superfund risk assessment home page (http://www.epa.gov/superfund/programs/risk/index.htm).
a. Availability of Demographic Data and Exposure Data: The
availability of information needed to assess the presence or likelihood
of adverse impact(s) may vary widely from one geographic location to
another. In addition to nationally available data, many states and
localities collect and maintain important information concerning
sources, stressors and ambient levels. Geographically detailed
demographic information (e.g., sub-county level data) is available
through the United States Bureau of the Census and commercial sources,
but is often limited to decennial census (e.g., 1990) data at the
appropriate levels of geographic resolution. Information on sources and
stressors is also available for some industries' releases of chemicals
in air, land, and soil. However, the databases may only address certain
categories of facilities and pollutants, are not of consistent
completeness or quality, and may change significantly over time.\13\ To
assess accuracy, completeness, and relevance, you may choose to review
and evaluate key data. You may also examine other available sources
(e.g., those developed by states and localities) for additional
important data, and consider collecting additional locally-relevant
data.
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\13\ For example, the Toxics Release Inventory (TRI) data base
has had a number of chemicals added for reporting (and a few
deleted) since its inception. Recently, a number of additional
facility types have begun reporting, with the first year's data for
1998 expected to be released in Spring 2000. Significantly expanded
reporting for small releases of highly toxic and/or persistent
chemcials has also recently become effective for reporting year
2000, with the first data release expected in Spring 2002.
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Some of the information on sources and stressors, which are
available in EPA's regulatory program databases, include the following:
\14\
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\14\ Note that OCR does not expect to limit its disparate
adverse impact analyses to information in these databases. Data
availability will be taken into consideration as OCR decides, on a
case-by-case basis, which databases to include in an assessment.
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The Toxic Release Inventory System (TRIS) contains
information about more than 650 toxic chemicals that are being used,
manufactured, treated, or released into the environment. Manufacturing
and other selected facilities (which meet reporting criteria for size
and quantities of chemicals) are required to report annually on waste
generation, releases and transfers of chemicals to EPA and states
(http://www.epa.gov/enviro/html/tris);
The Resource Conservation and Recovery Information System
(RCRIS) and Biennial Reporting System (BRS) are national program
management and inventory systems of Resource Conservation and Recovery
Act (RCRA) hazardous waste handlers
(http://www.epa.gov/epaoswer/hazwaste/data/);
RCRIS handlers (including large and small quantity
generators; treatment, storage and disposal facilities; and
transporters) (http://www.epa.gov/enviro/html/rcris/rcris--
overview.html); and
BRS (data on waste streams from large quantity generators
of hazardous waste) (http://www.epa.gov/enviro/html/brs/index.html);
The Comprehensive Environmental Response Compensation and
Liability Information System (CERCLIS) is a database that contains
information on the location of over 30,000 Superfund hazardous waste
sites. In addition, for sites included in the National Priority List
(NPL), the database contains information on pre-remedial actions such
as the discovery data and preliminary assessment, site inspection and
the date of final hazardous ranking determinations (http://www.epa.gov/enviro/html/hazard.html#Superfund);
The Aerometric Information Retrieval System (AIRS) is a
computer-based repository for information about air pollution in the
United States. AIRS contains information on air releases by various
stationary sources of air pollution, such as power plants and
factories, and provides information about the criteria air pollutants
that they produce. In AIRS, these sources are known as facilities, and
the part of AIRS containing data about sources is called the AIRS
Facility Subsystem, or AFS (http://www.epa.gov/enviro/html/air.html);
The Permit Compliance System (PCS) provides information on
companies which have been issued permits to discharge waste water into
water bodies (http://www.epa.gov/enviro/html/water.html);
Risk management plans (describing potential accidental
releases) are available for approximately 1500 facilities (http://
www.epa.gov:9966/srmpdcd/owa/overview$.startup).
Efforts to collect comprehensive information about sources of
contaminants in particular geographic areas include:
The total maximum daily load (TMDL) program develops
inventories of water emissions of contaminants from a variety of
sources, both point and non-point, to develop and allocate watershed-
based emission limits
(http://www.epa.gov/OWOW/tmdl/index.html), and has developed software
for building, maintaining and displaying source inventories called
BASINS (http://www.epa.gov/ost/BASINS/);
The EPA Office of Groundwater and Drinking Water source
water protection program (http://www.epa.gov/safewater/protect.html)
provides a drinking water contaminant source index (http://www.epa.gov/OGWDW/swp/intro4.html), including a list of potential contaminant
source inventory tools (http://www.epa.gov/safewater/protect/ feddata/
inventory.html); and
The National Air Toxics Assessment program of EPA's Office
of Air Quality Planning and Standards is developing updated 1996
comprehensive air toxics emissions information from a variety of
sources for release in 2000 (http://www.epa.gov/ttnuatw1/urban/nata/natapg.html).
The following information may be helpful to locate additional data
about ambient environmental monitoring levels, and facilities which
provide drinking water:
The Safe Drinking Water Information System/Federal version
(SDWIS/FED) is a database storing information about the nation's
drinking water. SDWIS/FED stores identification, violation and follow
up actions for approximately 175,000 public water systems (http://
www.epa.gov/enviro/html/sdwis/sdwis--ov.html);
The National Contaminant Occurrence Database (NCOD)
provides raw data on occurrences of physical, chemical, microbial and
radiological contaminants from both Public Water Systems and other
sources (http://www.epa.gov/ncod/);
The Storage and Retrieval of Water-Related Data System
(STORET), which contains information about the chemical, physical, and
biological
[[Page 39660]]
characteristics of ambient water monitoring data as well as select
ground water and surface water data. States, Regions, local
governments, Tribal groups, commissions, other Federal Agencies, and
volunteer groups provide the information to EPA, which can be retrieved
by written request. (www.epa.gov/reisite1/flshcard/storet.htm#); and
The AIRS Air Quality Subsystem (AQS), which contains data
on levels of criteria pollutants from air quality monitoring stations
throughout the U.S. AQS reports show summaries of the prevailing levels
of air pollution from specific monitoring sites, and maps can display
the locations of monitoring stations and non-attainment areas (http://www.epa.gov/airsdata/monitors.htm).
Many other sets of data, guidelines, and assessment tools exist
both within and outside EPA. Therefore, the list above is in no way
intended to be comprehensive. Instead it provides some introductory
information as an initial starting point in developing information
about these resources.
b. Potential Steps for Conducting Adverse Disparate Impact
Analyses: You may consider including the following steps when
conducting an adverse disparate impact analysis and refer to section VI
of the Draft Revised Investigation Guidance for more detailed guidance
on how to conduct the steps below:
1. Define Scope: Review community concerns and available data,
determine which other relevant sources of stressors, if any, should be
included in the analysis, and develop a project plan.
2. Impact assessment: Determine whether the activities of the
permitted entity at issue, either alone or in combination with other
relevant sources, cause one or more impacts and develop measure(s) of
the magnitude and likelihood of occurrence.
3. Adverse impact decision: Determine whether the impact(s) are
sufficiently adverse to be considered significant.
4. Characterize populations and conduct comparisons: Determine the
characteristics of the affected population, and conduct an analysis to
determine whether a disparity exists between the affected population
and an appropriate comparison population in terms of race, color, or
national origin, and adverse impact.
5. Adverse disparate impact decision: Determine whether the
disparity is significant.
c. Availability of Tools and Methodologies for Conducting Adverse
Impact Analyses: Analytical tools are available for conducting impact
analyses for a particular permit application or for a particular area
of concern. These analytical tools have limitations given the state of
the science in assessing risks from multiple stressors and exposure
pathways. You should use the best available tools for conducting
analyses to identify potential adverse impacts. Peer reviewed tools and
methodologies are the most credible.
Geographically detailed estimates of risks or other measures of
impact are the most useful in assessing adverse disparate impacts
because they often provide a clearer connection between sources,
stressor, and impacts. However, producing these estimates or measures
can require significant resources. Moreover, in some contexts, less
detailed methods or measures can be as useful. For example, ambient
risks may often be directly proportional to release amounts and
toxicity of the stressors.\15\ As a result, by examining the amount and
toxicity of stressors coming from the relevant source(s), it is often
possible to identify sources or combinations of sources that have a
higher likelihood of being associated with adverse disparate impacts.
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\15\ Estimations of risk or other measures of impact are also
likely to be dependent on many other factors such as environmental
conditions, stressor characteristics and interactions, exposure
pathways, and receptor population characteristics.
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When designing, selecting, and using adverse impact methodologies,
you should consider the following:
Availability of tools, resources, and training to evaluate
risks (both from single and multiple stressors);
Best available data concerning sources, stressors, and
ambient conditions;
Availability of a threshold of potential concern for
assessing the adversity of the impacts; and
The capacity of the assessment method to identify who may
be adversely impacted.
One tool which is likely to be useful is a geographic information
system (GIS), which allows users to manage, analyze, and display
integrated data, such as source locations, ambient conditions derived
from monitoring or modeling, and potentially impacted populations. Many
organizations have found GIS useful in environmental impact analyses.
GIS is not, however, a specific demographic or impact analysis method.
Instead, GIS software can be used to perform a range of analyses and
produce maps and other display products that are effective means of
communicating the findings and facilitating public participation. For
example, GIS is useful in overlaying data regarding adverse impacts on
maps that display population data.
Many organizations are using GIS to produce integrated
geographically-focused inventories of sources, which can be analyzed
and displayed in conjunction with population receptor information as
one type of initial focusing tool. Although such efforts do not
necessarily agree completely with the results of more sophisticated
analyses, many users are exploring how they can be used to help set
priorities and identify areas of possible concern, which can help
target outreach and further studies, such as the creation of more
comprehensive data on sources and stressors. Also, while such
approaches would rarely be used to indicate areas with adverse impacts,
they may be useful in identifying communities in which to conduct area-
specific Title VI approaches, or selecting permit decisions for further
investigation in a case-by-case approach.
d. Relevant Data: Generally, all readily available and relevant
data should be used to conduct adverse impact assessments. Data may
vary in completeness, reliability, and geographic relevance to the
assessment area. You should evaluate available data and place the
greatest weight on the most reliable data. The following data, in
approximate order of preference, could be used for assessments:
Ambient monitoring data;
Modeled ambient concentrations;
Known emissions or other release of a pollutant or
stressor;
Production, use or storage of quantities of pollutants;
and
Presence of sources or activities associated with
potential exposures.
Additional sources of information on tools and databases for
conducting an adverse disparate impact analysis include: \16\
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\16\ See Draft Revised Investigation Guidance, section VI
(regarding how EPA expects to conduct and adverse disparate impact
analysis in a complaint investigation).
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An introduction to risk assessment concepts contained in
the brochure, Air Pollution and Health Risk (http://www.epa.gov/oar/oaqps/air_risc /3_90_022.html);
The Office of Civil Rights Web page on investigative
methods contains background information provided to the Science
Advisory Board (SAB) regarding possible disproportionate impact
methodologies (http://www.epa.gov/civilrights/investig.htm);
[[Page 39661]]
The SAB December 1998 report \17\ on its review of EPA's
adverse disparate impact methodologies is available at the Office of
Civil Rights Web site (in Acrobat pdf format) at (http://www.epa.gov/civilrights/investig.htm); and
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\17\ An SAB Report: Review of Disproportionate Impact
Methodoligies; A Review by the Integrated Human Exposure Committee
(IHEC) of the Science Advisory Board (SAB).
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The Cumulative Exposure Project is developing methods for
evaluating the combined exposures to multiple pollutants through three
different pathways--air, food, and drinking water. The goal is to
examine the cumulative impacts of multiple pollutants and to determine
the important contributors to cumulative exposures. Initial results for
1990 modeled ambient air concentrations are available from the EPA Web
site at: http://www.epa.gov/cumulativeexposure/, with a cautionary note
on the applicability of the results to current local conditions at
http://www.epa.gov/cumulativeexposure/air/intrair.htm. As part of its
National Air Toxics Assessments, EPA is using this same model, updated
with 1996 data for 33 priority air toxics, and plans to release the
modeled ambient air concentrations in Spring 2000. These data will also
be used to model exposure estimates, which will be available later in
2000.
e. Resources for Assessing Significance of Impact: Assessing the
significance of a risk or measure of impact involves legal, policy, and
scientific considerations. Various environmental and health programs
have used a range of values for determining regulatory or public health
protection levels over time. Generally, the risk or measure of impact
should first be evaluated and compared to benchmarks provided under
relevant environmental statutes, regulations or policies. Where those
risks meet or exceed a significance level as defined by law, policy or
science, the measure of impact would likely be recognized as adverse in
a Title VI approach.
In some cases, the relevant environmental laws may not identify
regulatory levels for the risks of the health impact of concern. For
example, an impact may result from cumulative or other risk of effects
from multiple environmental exposure media. In such cases, you may
consider whether any scientific or technical information indicates that
those impacts should be recognized as significantly adverse under Title
VI. This evaluation would need to take into account considerations such
as policies developed for single stressors or sources without explicit
consideration of cumulative contributions and uncertainties in
estimates.
f. Conducting Disparity Analyses and Assessing Significance: As
part of the adverse impact, one method of identifying an affected
population would involve assessing the distribution of adverse impacts
in the environment, and associating populations with them.\18\ Where
this method is infeasible, estimating affected populations based on
proximity to sources may provide initial estimates for assessment. You
may wish to also attempt to assess the demographic characteristics of
the potentially affected population. In many cases, this will involve
associating the impact assessment results with data from the 1990 (or
later) \19\ U.S. Census, which is readily available at a detailed level
of geography. The residential census data includes population
characteristics such as language spoken at home and degree of English
fluency. This information will likely be helpful to you in determining
when limited English proficiency might be an issue for outreach and
public participation efforts.
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\18\ See Draft Revised Investigation Guidance, section VI.B.5.
(discussing how EPA expects to conduct disparity analyses in Title
VI investigations).
\19\ In 2000, the most current geographically detailed U.S.
Census information is from the 1990 U.S. Census. Information from
the 2000 U.S. Census will not be available until 2001.
---------------------------------------------------------------------------
Another element of this step involves a disparity analysis that
compares the affected population to a comparison population to
determine to what degree a disparity exists. EPA expects that
appropriate comparison populations will be decided on a case-by-case
basis. You could consider the situation in communities and/or
permitting decisions together with the types of impacts. Generally,
relevant comparison populations would be drawn from those who live
within a reference area such as your jurisdiction (e.g., an air
district, a state), a political jurisdiction (e.g., city, county). For
example, where a complaint alleges that Asian Americans throughout a
state bear adverse disparate impacts from permitted sources of water
pollution, an appropriate reference area would likely be the state.
Another potentially appropriate area might be one defined by
environmental criteria, such as an airshed or watershed. Comparison
populations should usually be larger than the affected population, and
may include the general population for the reference area (e.g., a
county or state population which includes the affected population) or
the non-affected population for the reference area (e.g., those in the
reference area which are not part of the affected population).
A disparity may be assessed using comparisons both of the different
prevalence of race, color, or national origin of the two populations,
and of the level of risk of adverse impacts experienced by each
population. You may wish to conduct comparisons of demographic
characteristics, such as the composition of an affected population to
that of a non-affected population or general population; \20\ and/or
the probability of different demographic groups (e.g., African
Americans, Hispanics, Whites) in a surrounding jurisdiction being in an
affected population or a highly affected portion of it. \21\ In
conjunction with comparisons of demographic characteristics between
populations, you may also wish to compare the level of risk or other
measure of potential adverse impacts between populations. These
comparisons might include the average \22\ or range of risks for
demographic subgroups of the general population or between an affected
population and the general population.
---------------------------------------------------------------------------
\20\ See, e.g., Draft Revised Demographic Information, Title VI
Administrative Complaint, re: Louisiana Department of Environmental
Quality/Permit for Proposed Shintech Facility, April 1998 (Shintech
Demographic Information, April 1998), Facility Distribution Charts
D1 through D40 found at http://www.epa.gov/civilrights/shinfileapr98.htm, files t-d0l-10.pdf, t-d11-20.pdf, t-d21-30.pfd,
t-d31-40.pdf.
\21\ See, e.g., Shintech Demographic Information, April 1998,
the last column in Tables A1 through B7 found at http://www.epa.gov/civilrights/shinfileapr98.htm, table-al.pdf through table-b.7.pdf.
\22\ See, e.g., Shintech Demographic Information, April 1998,
last column in Tables C1 through C5 found at http://www.epa.gov/civilrights/shinfileap98.htm, table-cl.pdf through table-c5.pdf.
---------------------------------------------------------------------------
Measures of the demographic disparity between an affected
population and a comparison population would normally be statistically
evaluated to determine whether the differences achieved statistical
significance to at least 2 to 3 standard deviations. The purpose of
this review is to minimize the chance of a false measurement of
difference where none actually exists (because of an inherent
variability of the data). In your analysis, you may also wish to
consider the demographic disparity measures and their results in the
context of several related factors, such as the size of the affected
population, the proportion of a jurisdiction's total population within
an affected population, and the demographic composition of the general
comparison population.
[[Page 39662]]
The determination of what level(s) of disparity that can be
considered significant should take into account the nature of the
decision being made (e.g., allocation of resources, triggering further
action); the type of disparity comparison; the consistency of results
between multiple comparisons; and underlying data quality. In many
instances, you should consider both the degree of disparity of
population composition with the degree of disparity of estimated level
of adverse impact. \23\
---------------------------------------------------------------------------
\23\ See Draft Revised Investigation Guidance, section VI.B.6.
(discussing how EPA expects to assess the significance of disparity
in Title VI investigations).
---------------------------------------------------------------------------
4. Encourage Intergovernmental Involvement
Bringing all agencies and parties together that may contribute to
both the problems and the solutions is one effective way to reach
innovative and comprehensive resolutions. You may not have the
authority, resources, or expertise to address all of the elements that
may contribute to the issues of concern to the community. For example,
you may not have authority over zoning or traffic patterns. Including
community representatives and the permit applicant in discussions
regarding Title VI concerns and resolutions can be an important part of
this process. The earlier you identify all appropriate parties,
including other governmental agencies, and bring them into the process,
the greater the likelihood that you will reach effective solutions.
5. Participate in Alternative Dispute Resolution
The ability to address identified or potential adverse impacts is
critical to resolving problems that may form the basis for a Title VI
complaint. The handling of Title VI concerns through the formal
administrative process can consume a substantial amount of time and
resources for all parties involved. Therefore, EPA strongly encourages
you to use alternative dispute resolution (ADR) techniques to address
concerns regarding adverse and disparate impacts from the issuance of
permits. EPA expects that recipients with the ability to engage in ADR
with affected communities and permit applicants are the most likely to
have success in informally resolving these types of issues.
ADR is a collaborative effort to design and implement a process
leading to an outcome acceptable to all parties. If you use ADR to
address some Title VI concerns you may choose to review the
recommendations in section II.B.2. of this guidance about effective
public participation. Providing early, inclusive and meaningful public
participation during the ADR process will help to ensure that the
agreement reached through ADR provides solutions to reduce or
eliminate: (1) Discriminatory human health, environmental, or other
effects resulting from the issuance of permits; and/or (2)
discrimination during the public participation process associated with
the permitting process. Usually, an experienced third party (a
``neutral'') facilitates the process. The neutral would work with each
of the parties to develop a mutually agreeable process.
There are several possible approaches to consider when developing
an ADR process:
Dialogue--Facilitated conversations for improving
understanding and relationships;
Consensus-Building--An informal, but structured process
through which parties can participate in shared learning and creative
problem-solving; and
Mediation--A third party neutral, with no decision-making
authority, helps all parties reach a voluntary negotiated settlement of
their issues.
Three common elements of all these approaches include:
Shared responsibility for the parties to find a resolution
that can satisfy their important concerns;
Voluntary resolutions that are not developed and imposed
by an external authority; and
A neutral environment where parties express their concerns
and views in a neutral environment.
Often resolution through ADR results in new understandings of and
innovative ideas to address issues of concern. It is also particularly
helpful in building better relationships that may be important for
future interactions between the parties.
Resources available to help you with informal dispute resolution
include:
The U.S. Institute for Environmental Conflict Resolution,
located at Suite 3350, 110 S. Church Avenue, Tucson, Arizona 85701
(telephone: 520-670-5529, Web site: http://www.ecr.gov).
Alternative Dispute Resolution: A Resource Guide. This
guide, written by the U.S. Office of Personnel Management (OPM),
provides an overall picture of how the most common forms of ADR are
being implemented in Federal agencies. It summarizes a number of
current ADR programs, and it includes descriptions of shared neutrals
programs where agencies have collaborated to reduce the costs of ADR.
It also provides a listing of training and resources available from
Federal and non-Federal sources along with selected ADR-related Web
sites. The document may be downloaded from the OPM Web site. http://www.opm.gov/er/adrguide/adrhome.html.ssi); and
Various States have offices of dispute resolution that can
provide information and resources.
6. Reduce or Eliminate Alleged Adverse Disparate Impact
EPA believes that cooperative efforts between permitting agencies
and communities, whether or not in the context of Title VI-related
approaches, frequently offer the best means of addressing potential
problems. Efforts that focus on all contributions to the disparate
impact, not just the permit at issue, will likely yield the most
effective long-term solutions. It will be a rare situation where the
permit which triggered the complaint is the sole reason a
discriminatory effect exists.
The Agency expects that remedial measures that reduce or eliminate
alleged disparate impacts will be an important focus of the informal
resolution process.\24\ You can offer to provide various forms of
remediation, including remedial measures that are narrowly tailored
toward sources using your existing permitting authorities.
Alternatively or in addition, you can propose broader remedial measures
that are outside those considerations ordinarily considered in the
permitting process. Before selecting a remedial measure, analyze and
compare all potential remedial measures. Remediation may take many
forms, including:
---------------------------------------------------------------------------
\24\ For a more detailed discussion of measures to reduce or
eliminate adverse disparate impact, see section IV.B. of the Draft
Revised Investigation Guidance.
---------------------------------------------------------------------------
Changes in policies or procedures;
Pollution reduction;
Pollution prevention;
Environmental remediation (e.g., lead abatement);
Emission offsets;
Emissions caps for geographic areas of concern;
Emergency planning and response measures; and
Measures to promote equality in monitoring and
enforcement.
The EPA Supplemental Environmental Projects (SEPs) Policy is a
source of information for recipients on remedial options and
procedures. SEPs are environmentally beneficial projects that may be
part of a settlement of environmental enforcement cases. The EPA SEP
Policy also contains a section on community input which may be
[[Page 39663]]
especially useful guidance for involving the public in the development
of remedial measures to address potentially disparate impacts. A copy
of EPA's SEPs policy is available through the National Service Center
for Environmental Publications (see reference section for address) and
is also available at http://www.epa.gov/oeca/sep/.
7. Evaluate Title VI Activities
You may decide to evaluate your Title VI approach or Title VI
activities to identify areas in need of improvement. For example, if
you choose to develop a public participation program, you may wish to
collect and analyze feedback from communities and businesses. In which
case, it would be important to give communities and businesses the
necessary information to provide appropriate feedback. The ability to
effectively evaluate any approach or activity is based primarily on
information and resource availability. If you choose to evaluate your
Title VI approach or activities, you should also consider data quality
when choosing an evaluation method. One resource on program evaluation
is Practical Evaluation for Public Managers, Getting The Information
You Need by the Department of Health and Human Services, Office of the
Inspector General (see reference section for address).
C. Due Weight
As recipients, many of you have asked EPA to provide ``incentives''
for you to develop proactive Title VI-related approaches. In
particular, some of you have asked EPA to recognize, and to the maximum
extent possible, rely on the results of any such approaches in
assessing complaints filed with EPA. While EPA encourages efforts to
develop proactive Title VI approaches, under the Civil Rights Act of
1964, EPA is charged with assuring compliance with Title VI. Thus, EPA
cannot completely defer to a recipient's own assessment that it has not
violated Title VI or EPA's regulations and cannot rely entirely on an
assertion that a Title VI approaches has been followed.\25\ In
addition, EPA cannot delegate its responsibility to enforce Title VI to
its recipients. Thus, with regard to the processing of Title VI
complaints, EPA retains the:
---------------------------------------------------------------------------
\25\ See 28 CFR 50.3(b) (``Primary responsibility for prompt and
vigorous enforcement of Title VI rests with the head of each
department and agency administering programs of Federal financial
assistance.''); Memorandum from Bill Lann Lee, Acting Assistant
Attorney General, U.S. Department of Justice, to Executive Agency
Civil Rights Directors (Jan. 28, 1999) (titled Policy Guidance
Document: Enforcement of Title VI of the Civil Rights Act of 1964
and Related Statutes in Block Grant-Type Programs) (``It is
important to remember that that Federal agencies are responsible for
enforcing the nondiscrimination requirements that apply to
recipients of assistance under their programs.'')
---------------------------------------------------------------------------
Ability to supplement the recipient's analysis or to
investigate the issues de novo;
Approval authority over any proposed resolution; and
Ability to initiate its own enforcement actions and
compliance reviews.
Nevertheless, EPA believes that it can, under certain
circumstances, recognize the results of analyses you submit and give
them appropriate due weight.\26\ For example, if you adopt any of the
individual Title VI activities discussed above, and during the course
of an investigation you seek to submit the results of those activities
as evidence that you have not violated EPA's Title VI regulations, EPA
will review the activity and the results to determine how much weight
to give the submission in its investigation.
---------------------------------------------------------------------------
\26\ For more information on how OCR plans to determine the
appropriate amount of due weight to give to evidence or information
submitted by recipients, see section V.B. of the Draft Revised
Investigation Guidance.
---------------------------------------------------------------------------
You may seek to conduct your own evaluation of whether a disparate
impact exists and submit it to EPA. These evaluations should at a
minimum generally conform to accepted scientific approaches. They may
focus on a spectrum of potential adverse impacts, such as described in
the analytical framework set forth in section II.B.3. above, or may be
more focused, such as the impact of a specific pollutant on nearby
populations (e.g., a study regarding the impact of lead emissions on
blood lead levels in the surrounding area). The weight given any
evidence related to the level or existence of adverse impacts and the
extent to which OCR may rely on it in its decision will likely vary
depending upon:
Relevance of the evidence to the alleged impacts;
The validity of the recipient's methodologies;
The completeness of the documentation that is submitted by
the recipient;
The degree of consistency between the methodology used and
the findings and conclusions; and
The uncertainties of the input data and results.
Consequently, submitted materials would be subject to scientific
review by EPA experts.
OCR expects to give more weight to submitted analyses that are
relevant to the Title VI concerns in the complaint and have sufficient
scope, completeness, and accuracy. If the analyses submitted meet the
factors above, OCR will not seek to duplicate or conduct such analyses,
but instead will evaluate the appropriateness and validity of the
relevant methodology and assess the overall reasonableness of the
outcome or conclusions at issue.
If OCR's review reveals that the evidence contains significant
deficiencies with respect to the factors above, then the analysis will
likely not be relied upon in OCR's decision. If these factors are met,
then OCR will likely rely on the evidence in its investigation. In the
instance where a submitted analysis that shows no adverse disparate
impact exists, and the analysis generally follows the steps in section
II.B.3.b. of this document and meets the factors described above, then
OCR may rely on it in a finding that the recipient is in compliance
with EPA's Title VI regulation.
Some recipients may develop procedures for their permitting program
that meet certain criteria designed to ensure a nondiscriminatory
public participation process. OCR expects to give due weight to the
public participation program if:
The criteria that formed the basis for the program were
sufficient to ensure a nondiscriminatory process;
Your overall permitting process met those criteria; and
you followed your program for the relevant case.
An example of a public participation process that meets these steps
would be one that followed the guidelines for the EPA Brownfields
Assessment Demonstration Pilot projects. A copy of The Brownfields
Economic Redevelopment Initiative Proposal Guidelines for Brownfields
Assessment Demonstration Pilots is available through the National
Service Center for Environmental Publications (see reference section
for address) and is also available at http://www.epa.gov/swerosps/bf/html-doc/apappg00.htm#guide.
EPA also intends to consider other available information, including
information submitted by complainants when investigating Title VI
complaints. If EPA's review reveals that the activity or analyses does
not meet the criteria above, then EPA will likely not rely on the
evidence in its decision. If EPA finds that the activity, whether it is
a public participation process, disparate impact analysis, the results
of an area-specific agreement, or other activity, is an acceptable
approach to ensure nondiscrimination, EPA would generally rely upon
this finding in subsequent decisions. Consequently,
[[Page 39664]]
OCR would generally dismiss future allegations related to issues
covered by the activity, unless there is an allegation or information
revealing that circumstances had changed substantially such that the
activity is no longer adequate or that it is not being properly
implemented.
III. Conclusion
This guidance recommends an approach to Title VI that focuses on
recipients identifying areas of concern and addressing potential
adverse impacts by implementing preventative activities or approaches.
It also indicates EPA's objective of lending clarity to the process by
providing due weight to a recipient's appropriate analytical efforts
that assess and resolve disparate impact claims. This approach
recommends community involvement at the beginning of the permitting
process and collaboration at all levels of government to find
innovative, cost-effective ways to reduce adverse disparate impacts.
EPA believes that such an approach will enable potentially adversely
impacted communities to be involved in the permit process in a
meaningful manner, while also providing state and local decision-makers
and businesses sufficient clarity regarding the Title VI process.
IV. Acronyms and Abbreviations
ADR--Alternative Dispute Resolution
AIRS--Aerometric Information Retrieval System
ASTM--American Society for Testing and Materials
BASINS--Better Assessment Science Integrating Point and Nonpoint
Sources
CERCLIS--Comprehensive Environmental Response Compensation and
Liability Information System
CFR--Code of Federal Regulations
ECOS--Environmental Council of States
EPA--United States Environmental Protection Agency
FRDS--Federal Reporting Data System
GIS--Geographic Information Systems
HHS--Department of Health and Human Services
NACEPT--National Advisory Council for Environmental Policy and
Technology
NEJAC--National Environmental Justice Advisory Council
OCR--EPA's Office of Civil Rights
PCS--Permit Compliance System
PLAN--Plain Language Action Network
RCRA--Resource Conservation and Recovery Act
RCRIS--Resource Conservation and Recovery Information System
SAB--Science Advisory Board
SDWIS/FED--Safe Drinking Water Information System/Federal version
SEP--Supplemental Environmental Projects
STORET--Storage and Retrieval of Water-Related Data System
TRI--Toxics Release Inventory
TRIS--Toxics Release Inventory System
V. References
ASTM, 1998, ASTM E 1984--98, Standard Guide to the Process of
Sustainable Brownfields Redevelopment, American Society for Testing and
Materials, Environmental Risk Management/Sustainable Development/
Pollution Prevention Subcommittee (For more information on this
standard, contact ASTM at 610-832-9585. (The ASTM Web site location is
http://www.astm.org).
ECOS, 1998, Proposed Elements of Environmental Justice Programs, Draft,
October 9, 1998, Environmental Council of States, Washington, DC (For
more information on this draft document, contact ECOS at 444 North
Capitol Street, N.W., Suite 305, Washington, DC 20001 or call 202-624-
3660 (The ECOS Web site is http://www.sso.org/ecos).
EPA, 1999, The Brownfields Economic Redevelopment Initiative Proposal
Guidelines for Brownfields Assessment Demonstration Pilots, October
1999. (A copy of the guidelines is available through the National
Service Center for Environmental Publications, P.O. Box 42419,
Cincinnati, OH 45242-2419 or call 800-490-9198 and is available at
http://www.epa.gov/swerosps/bf/html-doc/apappg00.htm#guide).
EPA, 1998, Draft Revised Demographic Information, Title VI
Administrative Complaint re: Louisiana Department of Environmental
Quality/Permit for Proposed Shintech Facility, April, 1998. (Available
through the Office of Civil Rights Web page on investigative approaches
at http://www.epa.gov/civilrights/investig.htm).
EPA, 1998, Guidance for Incorporating Environmental Justice Concerns in
EPA's NEPA Compliance Analyses, April, 1998. (Available at http://es.epa.gov/oeca/ofa/ejepa.html).
EPA, 1998, EPA Supplemental Environmental Projects Policy, May 1, 1998,
United States Environmental Protection Agency, Office of Enforcement
and Compliance Assurance, Washington, DC (A copy of the policy is
available through the National Service Center for Environmental
Publications, P.O. Box 42419, Cincinnati, OH 45242-2419 or call 800-
490-9198) and is also available at http://www.epa.gov/oeca/sep/).
EPA, 1996, RCRA Public Participation Manual, United States
Environmental Protection Agency, Solid Waste and Emergency Response,
Washington, DC, September 1996, EPA530-R-96-007 (This manual is
available in English and Spanish through the National Service Center
for Environmental Publications. Contact information is provided in the
previous reference. This manual is also available at http://www.epa.gov/epaoswer/hazwaste/permit/pubpart.
EPA, 1991, Air Pollution and Health Risk, United States Environmental
Protection Agency, Office of Air Quality Planning and Standards,
Washington, DC, March 1991, EPA 450/3-90-022. Available at http://www.epa.gov/oar/oaqps/air_risc/3_90_022.html.
HHS, 1994, Practical Evaluation for Public Managers, Getting The
Information You Need, Department of Health & Human Services, Office of
Inspector General, Washington, DC (For a copy of this book contact the
HHS Office of the Inspector General, Office of Evaluation and
Inspections at 330 Independence Avenue, S.W., Room 5660, Washington, DC
20201 or call 202-691-0480).
NACEPT, 1999, Report of the Title VI Implementation Advisory Committee,
Next Steps for EPA, State, and Local Environmental Justice Programs,
April 1999, EPA 1000-4-99-004. (The report is available on the OCR Web
site at http://www.epa.gov/civilrights/t6faca.htm. However, Appendices
1-3 and A-N are not posted on the OCR Web site, but are available by
ordering a paper copy, using a form on the OCR Web site).
NEJAC, 1996, The Model Plan for Public Participation, the Public
Participation and Accountability Subcommittee of the National
Environmental Justice Advisory Council, A Federal Advisory Committee to
the EPA (The OEJ Web site location is http://es.epa.gov/oeca/main/ej/index.html).
OPM, 1999, Alternative Dispute Resolution: A Resource Guide, July 1999,
U.S. Office of Personnel Management, Washington, DC
[[Page 39665]]
PLAN, 1998, Writing User-Friendly Documents, Plain Language Action
Network (available at http://www.plainlanguage.gov).
SAB, 1999, An SAB Report: Review of Disproportionate Impact
Methodologies, A Review by the Integrated Human Exposure Committee
(IHEC) of the Science Advisory Board (SAB)'', EPA-SAB-99-007, December
1998, United States Environmental Protection Agency, Science Advisory
Board, Washington, DC (This SAB report is available in Acrobat pdf
format via the OCR Web site at http://www.epa.gov/civilrights/investig.htm).
Glossary of Terms
The definitions provided in this glossary only apply to the Draft
Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs and the Draft Revised Guidance for
Investigating Title VI Administrative Complaints Challenging Permits,
unless a direct citation to the Code of Federal Regulations (CFR) is
provided. Please note that italicized words are ones for which
definitions are available in this glossary.
------------------------------------------------------------------------
Term Definition
------------------------------------------------------------------------
Accuracy..................... The measure of the correctness of data,
as given by the difference between the
measured value and the true or standard
value.
Adverse Impact............... A negative impact that is determined by
EPA to be significant, based on
comparisons with benchmarks of
significance. These benchmarks may be
based on law, policy, or science.
Affected Population.......... A population that is determined to bear
an adverse impact from the source(s) at
issue.
Ambient Standards............ A level of pollutants prescribed by
regulations that are not to be exceeded
during a given time in a defined area.
(e.g., National Ambient Air Quality
Standards).
Ambient...................... Any unconfined portion of a water body,
land area, or the atmosphere, such as
the open air or the environment
surrounding a source.
Attainment Area.............. An area considered to have air quality as
good as or better than the national
ambient air quality standards as defined
in the Clean Air Act. An area may be an
attainment area for one pollutant and a
non-attainment area for others. (See
also non-attainment area).
Benchmark.................... A value used as a standard for
comparison. Several types used in Title
VI investigations include benchmarks of
exposure level, risk, and significance.
(See also RfC, RfD, threshold)
Brownfields.................. Abandoned, idled, or under-used
industrial and commercial facilities/
sites where expansion or redevelopment
is complicated by real or perceived
environmental contamination. They can be
in urban, suburban, or rural areas.
Carcinogen................... A chemical or other stressor capable of
inducing a cancer response.
Chronic Toxicity............. The capacity of a substance to cause long-
term harmful health effects.
Comparison Population........ A population selected for comparison with
an affected population in determining
whether the affected population is
significantly different with respect to
demographic characteristics or degree of
adverse impact.
Criteria Pollutants.......... The 1970 Clean Air Act (CAA) required EPA
to set National Ambient Air Quality
Standards for certain pollutants known
to be hazardous to human health. EPA has
identified and set standards to protect
human health and welfare for six
pollutants: Ozone, carbon monoxide,
particulate matter, sulfur dioxide,
lead, and nitrogen oxide. The term,
``criteria pollutants'' derives from the
requirement that EPA must describe the
characteristics and potential health and
welfare effects of these pollutants in
``criteria.'' See CAA section 108.
Cumulative Exposure.......... Total exposure to multiple environmental
stressors (e.g., chemicals), including
exposures originating from multiple
sources, and traveling via multiple
pathways over a period of time.
Cumulative Impact............ The harmful health or other effects
resulting from cumulative exposure.
Disparity (Disparate Impact). A measurement of a degree of difference
between population groups for the
purpose of making a finding under Title
VI. Disparities may be measured in terms
of the respective composition
(demographics) of the groups, and in
terms of the respective potential level
of exposure, risk or other measure of
adverse impact.
Due Weight................... The importance or reliance EPA gives to
evidence or agreements to reduce impacts
provided by recipients or complainants,
depending on a review of relevance,
scientific validity, completeness,
consistency, and uncertainties. Where
evidence or agreements prove to be
technically satisfactory, OCR may rely
upon that information rather than
attempting to duplicate the analysis.
Environmental Council of The Environmental Council of States
States (ECOS). (ECOS) is a national non-partisan,
nonprofit association of state and
territorial environmental commissioners.
Exposure..................... Contact with, or being subject to the
action or influence of, environmental
stressors, usually through ingestion,
inhalation, or dermal contact.
Exposure Pathway............. The physical course a chemical or other
stressor takes from its source to the
exposed receptor (See also Exposure
Route).
Exposure Route............... The avenue by which a chemical or other
stressor comes into contact with an
organism (e.g., inhalation, ingestion,
dermal contact).
Exposure Scenario............ A set of facts, assumptions, and
inferences about how exposure takes
place that aids in evaluating,
estimating, or quantifying exposures
(e.g., exposure pathway, environmental
conditions, time period of exposure,
receptor lifetime, average body weight).
Financial Assistance......... Any grant or cooperative agreement, loan,
contract (other than a procurement
contract or a contract of insurance or
guaranty), or any other arrangement by
which EPA provides or otherwise makes
available assistance in the form of: (1)
Funds; (2) Services of personnel; or (3)
Real or personal property or any
interest in or use of such property,
including: (i) Transfers or leases of
such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer
or lease of such property if EPA's share
of its fair market value is not returned
to EPA. 40 CFR 7.25.
General Population........... A comparison population that consists of
the total set of persons in a
jurisdiction or area of potential
impact, including an affected
population.
[[Page 39666]]
GIS (Geographic Information An organized computer system designed to
System). efficiently capture, analyze, and
display information in a geographically
referenced manner, such as a map.
Commonly, GIS is used to produce maps
which combine various data and analysis
results together, allowing for
convenient visual analysis.
Hazard....................... The degree of potential for a stressor to
cause illness or injury in a receptor,
or the inherent toxicity of a compound.
Hazard Index................. A summation of hazard quotients for
multiple chemicals; a measure of
cumulative risk for substances which
exhibit a threshold for toxicity.
Hazard Quotient.............. The ratio of a single substance exposure
level to a reference dose or benchmark
for that substance. An exposure at the
same concentration as the reference dose
would have a hazard quotient of 1.
Hazardous Air Pollutant (HAP) Air toxics which have been specifically
listed for regulation under Clean Air
Act section 112.
Health Outcome............... A measure of disease rate or similar
impact, such as age-adjusted cancer
death rate.
Impact....................... In the health and environmental context,
a negative or harmful effect on a
receptor resulting from exposure to a
stressor (e.g., a case of disease). The
likelihood of occurrence and severity of
the impact may depend on the magnitude
and frequency of exposure, and other
factors affecting toxicity and receptor
sensitivity.
Informal Resolution.......... Any settlement of complaint allegations
prior to the issuance of a formal
finding of noncompliance by EPA.
Measure of Impact............ A measure used in evaluating the
significance of an impact, which may
involve the general likelihood,
frequency, rate or number of instances
of the occurrence of an impact. (See
risk, which is similar, but expressed as
a numeric probability of occurrence).
Media or Medium.............. Specific environmental compartments such
as air, water, or soil, that are the
subject of regulatory concern and
activities.
Mitigation................... Measures taken to reduce or eliminate the
intensity, severity or frequency of an
adverse disparate impact.
Mobile Source................ Any non-stationary source of air
pollution such as cars, trucks,
motorcycles, buses, airplanes, ships or
locomotives.
Model/Modeling/Modeled....... A set of procedures or equations (usually
computerized) for estimating or
predicting a value, e.g., the ambient
environmental concentration of a
stressor. Also, the act of using a
model.
National Ambient Air Quality Standards established by EPA pursuant to
Standards (NAAQS). Clean Air Act section 109 that apply for
outdoor air throughout the country. (See
criteria pollutants)
New Permit................... For the purposes of this guidance, the
term ``new permits'' refers to the
initial issuance of any permit,
including permits for (1) The
construction of a new facility, (2) the
continued operation of an existing
facility that previously operated
without that type of permit, and (3) an
existing facility that adds a new
operation that would require a new type
of permit (e.g., newly issued water
discharge permit), in addition to the
facility's existing permits (e.g.,
existing air emission permit). (See
permit).
Non-Affected population...... The remainder of a general population
which is not found to be part of an
affected population (e.g., a county
population minus those in an affected
population).
Non-Attainment Area.......... Area that does not meet one or more of
the National Ambient Air Quality
Standards for the criteria pollutants
designated in the Clean Air Act.
Non-Point Source............. A diffuse water pollution source (i.e.,
without a single point of discharge to
the environment). Common non-point
sources include agricultural, forestry,
mining, or construction areas, areas
used for land disposal, and areas where
collective pollution due to everyday use
can be washed off by precipitation, such
as city streets. (See also point
source).
Noncompliance................ A finding by EPA that a recipient's
program or activities do not meet the
requirements of EPA's Title VI
implementing regulations.
Offsets...................... A concept whereby emissions from proposed
new or modified stationary sources are
balanced by reductions from existing
sources to stabilize total emissions.
Pathway (exposure)........... The physical course a chemical or other
stressor takes from its source to the
exposed receptor (See also Exposure
Route).
Pattern (of disparate impact) An allegation or finding that multiple
sources of a certain type are
consistently associated with likely
adverse impacts to a protected group.
Permit....................... An authorization, license, or equivalent
control document issued by EPA or other
agency to implement the requirements of
an environmental regulation (e.g., a
permit to operate a wastewater treatment
plant or to operate a facility that may
generate harmful emissions).
Plain Language Action Network Plain Language Action Network (PLAN) is a
government-wide group working to improve
communications from the federal
government to the public.
Point Source................. A stationary location or fixed facility
from which pollutants are discharged;
any single identifiable source of a
stressor (e.g., a pipe, ditch, small
land area, pit, stack, vent, building).
Pollution Prevention......... The practice of identifying areas,
processes, and activities that create
excessive waste products or stressors,
and reducing or preventing them from
occurring through altering or
eliminating a process or activity.
Potency Factor............... A measure of the power of a toxic
stressor to cause harm at various levels
of exposure (sometimes based on the
slope of a dose-response curve), or
above a single specific value.
Receptor..................... An individual or group that may be
exposed to stressors.
Recipient.................... Any state or its political subdivision,
any instrumentality of a state or its
political subdivision, any public or
private agency, institution,
organization, or other entity, or any
person to which Federal financial
assistance is extended directly or
through another recipient, including any
successor, assignee, or transferee of a
recipient, but excluding the ultimate
beneficiary of the assistance. 40 CFR
7.25.
Reference Area............... An area from which one or more comparison
populations are drawn for conducting a
disparity analysis.
[[Page 39667]]
Reference Dose............... See RfC and RfD.
Release...................... The introduction of a stressor to the
environment, where it may come in
contact with receptors. Includes, among
other things, any spilling, leaking,
pumping, pouring, emitting, emptying,
discharging, injecting, escaping,
leaching, dumping, or disposing into the
environment.
RfC (inhalation reference An estimate (with uncertainty spanning
concentration). perhaps an order of magnitude) of the
daily exposure of the human population
to a chemical, through inhalation, that
is likely to be without risk of harmful
effects during a lifetime.
RfD (oral reference dose).... An estimate (with uncertainty spanning
perhaps an order of magnitude) of the
daily exposure of the human population
to a chemical, through ingestion, that
is likely to be without risk of harmful
effects during a lifetime.
Risk......................... A measure of the probability that damage
to life, health, property, and/or the
environment will occur as a result of a
given hazard. In quantitative terms,
risk is often expressed in values
ranging from zero (representing the
certainty that harm will not occur) to
one (representing the certainty that
harm will occur). The following are
examples showing the manner in which
cancer risk is expressed: E-4 = 1 in 10-
4, or a risk of 1 in 10,000; E-5 = a
risk of 1/100,000; E-6 = a risk of 1/
1,000,000. Similarly, 1.3E-3 = a risk of
1.3/1000 = 1 chance in 770.
Risk Assessment.............. Qualitative and quantitative evaluation
of the risk posed to human health and/or
the environment by the actual or
potential presence and/or use of
specific stressors. This involves a
determination of the kind and degree of
hazard posed by a stressor (e.g.,
toxicity), the extent to which a
particular group of people has been or
may be exposed to the agent, and the
present or potential health risk that
exists due to the agent.
Science Advisory Board (SAB). A group of external scientists who advise
EPA on science and policy.
Significant.................. A determination that an observed value is
sufficiently large and meaningful to
warrant some action. (See statistical
significance).
Source....................... The site, facility, or origin from which
one or more environmental stressors
originate (e.g., factory, incinerator,
landfill, storage tank, field, vehicle).
Statistical Significance..... An inference that there is a low
probability that the observed difference
in measured or estimated quantities is
due to variability in the measurement
technique, rather than due to an actual
difference in the quantities themselves.
Stressor..................... Any factor that may adversely affect
receptors, including chemical (e.g.,
criteria pollutants, toxic
contaminants), physical (e.g., noise,
extreme temperatures, fire) and
biological (e.g., disease pathogens or
parasites). Generally, any substance
introduced into the environment that
adversely affects the health of humans,
animals, or ecosystems. Airborne
stressors may fall into two main groups:
(1) Those emitted directly from
identifiable sources and (2) those
produced in the air by interaction
between chemicals (e.g., most ozone).
Threshold.................... The dose or exposure level below which an
adverse impact is not expected. Most
carcinogens are thought to be non-
threshold chemicals, to which no
exposure can be presumed to be without
some risk of contracting the disease.
Toxicity..................... The degree to which a substance or
mixture of substances can harm humans or
animals. (See chronic toxicity).
Unit Risk Factor............. A measure of the power of a toxic
stressor to cause cancer at various
levels of exposure (based on the slope
of a dose-response curve, combined with
an exposure scenario).
Universe of Sources.......... A category of relevant and/or nearby
sources of similar stressors to those
from the permitted activity included in
assessments of potential adverse
disparate impacts.
Voluntary Compliance......... Settlement between EPA and a recipient
after a formal finding of noncompliance.
------------------------------------------------------------------------
C. Draft Revised Guidance for Investigating Title VI Administrative
Complaints Challenging Permits (Draft Revised Investigations
Guidance)
I. Introduction
A. Purpose of the Revised Investigation Guidance
B. Title VI of the Civil Rights Act of 1964
C. Scope of Guidance
D. Coordination with Recipient Guidance
E. Principles for Implementing Title VI at EPA
F. EPA's Nondiscrimination Responsibilities and Commitment
II. Framework for Processing Complaints
A. Summary of Steps
1. Acknowledgment of Complaint
2. Acceptance for Investigation, Rejection, or Referral
3. Investigation
4. Preliminary Finding of Noncompliance
5. Formal Finding of Noncompliance
6. Voluntary Compliance
7. Hearing/Appeal Process
B. Roles and Opportunities to Participate
1. Recipients
2. Complainants
III. Accepting or Rejecting Complaints
A. Criteria
B. Timeliness of Complaints
1. Start of 180-day ``Clock''
2. Good Cause Waiver
3. Ongoing Permit Appeals or Litigation
a. Permit Appeal Processes
b. Litigation
4. Premature Complaints
IV. Resolving Complaints
A. Reaching Informal Resolution
1. Informal Resolution Between Recipient and Complainant
2. Informal Resolution Between EPA and Recipient
B. Implementing Informal Resolutions
V. Investigative Procedures
A. Submission of Additional Information
B. Granting Due Weight to Submitted Information
1. Analyses or Studies
2. Area-specific Agreements
C. Submission of Additional or Amended Complaints
D. Discontinued Operations/Mootness
E. Filing/Acceptance of Title VI Complaint Does Not Invalidate
Permit
VI. Adverse Disparate Impact Analysis
A. Framework for Adverse Disparate Impact Analysis
B. Description of Adverse Disparate Impact Analysis
1. Assess Applicability
a. Determine Type of Permit
b. Determine if Permit is Part of an Agreement to Reduce Adverse
Disparate Impacts
2. Define Scope of Investigation
a. Determine the Nature of Stressors and Impacts Considered
b. Determine Universe of Sources
3. Impact Assessment
4. Adverse Impact Decision
a. Example of Adverse Impact Benchmarks
[[Page 39668]]
b. Use of National Ambient Air Quality Standards
c. Assessing Decreases in Adverse Impacts in a Permit Action
5. Characterize Populations and Conduct Comparisons
a. Identify and Characterize Affected Population
b. Comparison to Assess Disparity
6. Adverse Disparate Impact Decision
VII. Determining Whether a Finding of Noncompliance is Warranted
A. Justification
1. Types of Justification
2. Less Discriminatory Alternatives
3. Voluntary Compliance
B. Hearing/Appeal Process
Appendix A: Glossary of Terms
Appendix B: Title VI Complaint Process Flow Chart
I. Introduction
A. Purpose of the Revised Investigation Guidance
The Draft Revised Guidance for Investigating Title VI
Administrative Complaints Challenging Permits (Draft Revised
Investigation Guidance) is intended to provide a framework for the
United States Environmental Protection Agency's (EPA or Agency) Office
of Civil Rights (OCR) to process complaints filed under Title VI of the
Civil Rights Act of 1964, as amended (Title VI),\27\ and EPA's Title VI
implementing regulations\28\ alleging discriminatory effects resulting
from the issuance of pollution control permits \29\ by recipients of
EPA financial assistance.
---------------------------------------------------------------------------
\27\ 42 U.S.C. 2000d to 2000d-7.
\28\ 40 CFR part 7.
\29\ The underlined terms are defined or explained in the
attached Glossary.
---------------------------------------------------------------------------
B. Title VI of the Civil Rights Act of 1964, as Amended
The goal of the Civil Rights Act of 1964 is to eliminate
discrimination in several areas of American society.\30\ The Act
prohibits discrimination in public accommodations (Title II);
segregation in public facilities (Title III); segregation in public
schools (Title IV); and discrimination in employment (Title VII).\31\
Title VI of the Act, which prohibits discrimination on the basis of
race, color, and national origin in all Federally-assisted programs and
activities, applies to the recipients of an estimated $900 billion in
Federal assistance distributed annually by approximately 27 Federal
agencies.\32\ When submitting the Civil Rights Act to Congress,
President Kennedy stated that ``[s]imple justice requires that public
funds, to which all taxpayers of all races contribute, not be spent in
any fashion, which encourages, entrenches, subsidizes, or results in
racial discrimination.'' \33\
---------------------------------------------------------------------------
\30\ See, e.g., 110 Cong. Rec. 7062 (1964) (``[T]he purpose of
title VI is to make sure that funds of the United States are not
used to support racial discrimination.'') (statement of Sen.
Pastore).
\31\ Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241
(codified as amended in scattered sections of 42 U.S.C.).
\32\ U.S. Commission on Civil Rights, Federal Title VI
Enforcement to Ensure Nondiscrimination in Federally Assisted
Programs, p.12 (June 1996) [hereinafter Federal Title VI
Enforcement].
\33\ H.R. Doc. No. 124, 88th Cong., 1st Sess. (1963), reprinted
in 1963 U.S.C.C.A.N. 1534.
---------------------------------------------------------------------------
Title VI itself prohibits intentional discrimination.\34\ In
addition, the Supreme Court has stated that Title VI authorizes
agencies to adopt implementing regulations that also prohibit
discriminatory effects.\35\ This is often referred to as reaching
actions that have an unjustified adverse disparate impact. EPA in 1973
promulgated regulations that implement Title VI and revised them in
1984.\36\ Under EPA's Title VI implementing regulations, agencies
receiving EPA financial assistance are prohibited, among other things,
from using ``criteria or methods of administering its program which
have the effect of subjecting individuals to discrimination because of
their race, color, [or] national origin.'' \37\ As applied to the
permitting process, recipients of EPA financial assistance may not
issue permits that are intentionally discriminatory or have a
discriminatory effect based on race, color, or national origin.
---------------------------------------------------------------------------
\34\ Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 589
(1983).
\35\ See Alexander v. Choate, 469 U.S. 287, 292-94 (1985);
Guardians Ass'n, 463 U.S. at 589-93.
\36\ 38 FR 17968 (1973), as amended by 49 FR 1656 (1984)
(codified at 40 CFR part 7).
\37\ 40 CFR 7.35(b).
---------------------------------------------------------------------------
C. Scope of Guidance
While this guidance is directed at the processing of discriminatory
effects allegations, Title VI complaints may also allege discriminatory
intent in the context of environmental permitting. Such complaints
generally will be investigated by OCR under Title VI, EPA's Title VI
regulations, and applicable intentional discrimination case law.
Moreover, even for allegations of discriminatory effects, this document
is not intended to comprehensively address every scenario that may
arise in the interaction between Title VI, EPA's Title VI regulations,
and environmental permitting.\38\ Given the infinite number of possible
permutations of facts, allegations, and circumstances, such an approach
is infeasible. Instead, this guidance provides a detailed framework
explaining how OCR intends to process and investigate allegations about
discriminatory effects resulting from environmental permitting
decisions. In particular, OCR generally expects to use this guidance
for complaints involving allegations related to environmental permits,
such as Clean Air Act \39\ permits, Clean Water Act \40\ discharge
permits, Safe Drinking Water Act \41\ permits, underground injection
\42\ permits, and Resource Conservation and Recovery Act \43\ permits
for treatment, storage, and disposal.\44\
---------------------------------------------------------------------------
\38\ Title VI ``delegated to the agencies in the first instance
the complex determination of what sorts of disparate impacts upon
minorities constituted sufficiently significant social problems, and
were readily enough remediable, to warrant altering the practices of
the federal grantees that had produced those impacts.'' Alexander v.
Choate, 469 U.S. 287, 292-94 (1985). In addition, DOJ, which is
charged with coordinating the Federal government's Title VI work,
Executive Order 12250, 45 FR 72995 (1980), issued regulations that
provide, in part, that ``Federal agencies shall publish Title VI
guidelines for each type of program to which they extend financial
assistance.'' 28 CFR 42.404(a). Furthermore, Executive Order 12250
requires agencies to issue appropriate implementing directives in
the form of policy guidance or regulations that are consistent with
requirements prescribed by the Attorney General. Pursuant to that
authority, EPA is issuing the Draft Revised Investigation Guidance
and the Draft Recipient Guidance.
\39\ Clean Air Act, 42 U.S.C. 7401 to 7671q.
\40\ Federal Water Pollution Control Act, 33 U.S.C. 1251 to
1387.
\41\ Safe Drinking Water Act, 42 U.S.C. 300f to 300j-26.
\42\ Underground injections are regulated pursuant to the Safe
Drinking Water Act.
\43\ Resource Conservation and Recovery Act, 42 U.S.C. 6901 to
6992k.
\44\ Use permits, such as those issued for pesticides, have some
similarities to the permits listed above. OCR may use this guidance
for complaints involving use permits if appropriate for the
allegations and facts. For example, if a complaint alleged
discriminatory effects from the application of a state-registered
pesticide in a particular location, this guidance could be relevant.
For investigations about such allegations, the term ``permitted
activity'' would substitute for ``source'' in this guidance.
---------------------------------------------------------------------------
The types of allegations that complainants have identified in
previous complaints span a wide range, and may involve public
participation, as well as adverse disparate impacts from the issuance
of permits. Some are focused narrowly on the impacts from a single
permitted activity or facility, while others have identified concerns
with groups of similar facilities (e.g., all waste disposal sites in an
area), or the combined impacts of facilities and other sources in a
particular area (e.g., major permitted sources together with other
stationary, mobile, or non-point sources). In some cases, allegations
suggest that the recipient's permitting action may be part of a
discriminatory pattern of decision-making for certain types of
facilities (e.g., hazardous waste landfills throughout a state). The
nature of each of the allegations accepted for investigation in a
particular complaint
[[Page 39669]]
will generally form the basis for the scope of the investigation, which
is further described in Section VI of this document.
Application of Title VI to issues other than environmental
permitting, such as allegations concerning enforcement-related matters
and public participation, will be addressed in future internal EPA
guidance documents, as appropriate. Once that further guidance is
available, complaints involving such allegations will be addressed
under both EPA's Title VI regulations, which provide a general process
for investigation of complaints, and that guidance. Until that time,
such allegations will be addressed under the regulations.
This guidance does not discuss in detail specific remedies for
violations of Title VI or EPA's implementing regulations because
remedies tend to be case-specific. Nonetheless, it should be noted at
the outset that Title VI provides a variety of options in the event
that EPA finds a recipient in violation of the statute or regulations.
The primary administrative remedy described in the regulations involves
the termination of EPA assistance to the recipient.\45\ Alternatively,
EPA may use other means authorized by law to obtain compliance (e.g.,
referral to the Department of Justice (DOJ) for judicial
enforcement).\46\ However, as noted elsewhere in this document, EPA
encourages the use of informal resolution to address Title VI
complaints whenever possible.
---------------------------------------------------------------------------
\45\ 40 CFR 7.130(a).
\46\ Id.
---------------------------------------------------------------------------
It will likely be a rare situation where the permit that triggered
the complaint is the sole reason discriminatory effects exist. EPA
believes that cooperative efforts between permitting agencies and
communities, whether or not in the context of Title VI-related
programs, frequently offer the best means of dealing with such impacts,
either before or after an investigation and finding. Efforts that focus
on all contributions to the adverse disparate impact, not just from the
permit at issue, will likely yield the most effective long-term
solutions.
The statements in this document are intended solely as guidance.
This document is not intended, nor can it be relied upon, to create any
rights or obligations enforceable by any party in litigation. EPA may
decide to follow the guidance provided in this document, or to act at
variance with the guidance, based on its analysis of the specific facts
presented. This guidance may be revised to reflect changes in EPA's
approach to implementing Title VI. In addition, this guidance does not
alter in any way, a regulated entity's obligation to comply with
applicable environmental laws. This guidance uses mandatory language
when repeating explicit requirements found in EPA's Title VI
regulations. The remainder of the guidance is discretionary and gives
EPA flexibility to address the particularities of each complaint.
This guidance does not address complaints against EPA recipients
that are Federally-recognized Indian tribes. That subject will be
addressed by EPA in separate guidance because the applicability of
Title VI to Federally-recognized Indian tribes involves unique issues
of Federal Indian law.
D. Coordination With Recipient Guidance
Concurrently with this Draft Revised Investigation Guidance, EPA
has issued Draft Title VI Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs (Draft Recipient
Guidance), which provides a series of recommendations designed to
improve existing programs of EPA recipients and reduce the likelihood
or necessity for persons to file Title VI complaints. Implementation of
the approaches suggested by the Draft Recipient Guidance should reduce
the likelihood or necessity for communities to file Title VI
administrative complaints with EPA alleging either: (1) Discriminatory
human health or environmental effects resulting from the issuance of
permits; or (2) discrimination during the public participation process
associated with the permit. The Draft Revised Investigation Guidance
and the Draft Recipient Guidance documents were developed concurrently
to ensure consistency. Furthermore, both Title VI guidance documents
reference appropriate sections of the other and share an attached
glossary.
The attached Summary of Key Stakeholder Issues Concerning EPA Title
VI Guidance document provides an additional discussion that addresses
questions and concerns expressed in comments the Agency has received on
the issue of Title VI guidance.
E. Principles for Implementing Title VI at EPA
In implementing Title VI and developing this draft guidance, EPA
adheres to the following principles \47\:
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\47\ The guiding principles were adapted, in part, from the
consensus principles identified by the Title VI Implementation
Advisory Committee under EPA's National Advisory Council for
Environmental Policy and Technology.
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All persons regardless of race, color, or national origin
are entitled to a safe and healthful environment.
Strong civil rights enforcement is essential.
Enforcement of civil rights laws and environmental laws
are complementary, and can be achieved in a manner consistent with
sustainable economic development.
Potential adverse disparate cumulative impacts from
stressors should be assessed, and reduced or eliminated wherever
possible.
Research efforts by EPA and state and local environmental
agencies into the nature and magnitude of exposures, stressor hazards,
and risks are important and should be continued.
Decreases in environmental impacts through applied
pollution prevention and technological innovation should be encouraged
to prevent, reduce, or eliminate adverse disparate impacts.
Meaningful public participation early and throughout the
decision-making process is critical to identify and resolve issues, and
to assure proper consideration of public concerns.
Early, preventive steps, whether under the auspices of
state and local governments, in the context of voluntary initiatives by
industry, or at the initiative of community advocates, are strongly
encouraged to prevent potential Title VI violations and complaints.
Use of informal resolution techniques in disputes
involving civil rights or environmental issues yield the most desirable
results for all involved.
Intergovernmental and innovative problem-solving provide
the most comprehensive response to many concerns raised in Title VI
complaints.
F. EPA's Nondiscrimination Responsibilities and Commitment
Title VI is inapplicable to EPA actions, including EPA's issuance
of permits, because it only applies to the programs and activities of
recipients of Federal financial assistance, not to Federal agencies.
The statute clearly excludes Federal agencies from its definition of
``program or activity.'' \48\ Nonetheless, EPA is committed to a policy
of nondiscrimination in its own permitting programs. The equal
protection guarantee in the Due Process Clause of the U. S.
Constitution prohibits the Federal government from engaging in
intentional
[[Page 39670]]
discrimination.\49\ Moreover, section 2-2 of Executive Order 12898,
``Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations,'' \50\ directs Federal agencies
to ensure, in part, that Federal actions substantially affecting human
health or the environment do not have discriminatory effects based on
race, color, or national origin. Consequently, EPA intends to conduct
itself in a manner consistent with EPA's Title VI regulations.
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\48\ 42 U.S.C. 2000d-4a.
\49\ See U.S. Const. amend. V; see also Washington v. Davis, 426
U.S. 229, 239 (1976); Bolling v. Sharpe, 347 U.S. 497, 499-500
(1954).
\50\ Section 2-2 provides: Each Federal agency shall conduct its
programs, policies, and activities that substantially affect human
health or the environment, in a manner that ensures that such
programs, policies, and activities do not have the effect of
excluding persons (including populations) from participation in,
denying persons (including populations) the benefits of, or
subjecting persons (including populations) to discrimination under,
such programs, policies, and activities, because of their race,
color, or national origin. Executive Order 12898, 59 FR 7629 (1994).
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II. Framework for Processing Complaints
The following discussion describes how OCR intends to process Title
VI complaints alleging discriminatory effects in the context of
environmental permitting under EPA's Title VI implementing
regulations.\51\ In order to find a recipient in violation of the
discriminatory effects standard in EPA's Title VI implementing
regulations, OCR would determine whether the recipient's programs or
activities have resulted in an unjustified adverse disparate
impact.\52\ In other words, OCR would assess whether the impact is both
adverse and borne disproportionately by a group of persons based on
race, color, or national origin,\53\ and, if so, whether that impact is
justified.\54\ Assessing background sources of stressors allegedly
contributing to discriminatory effects may be required to understand
whether an adverse impact exists. However, in determining whether a
recipient is in violation of Title VI or EPA's implementing
regulations, the Agency expects to account for the adverse disparate
impacts resulting from sources of stressors (e.g., facilities),
stressors (e.g., chemicals or pathogens), and/or impacts (e.g., risk of
disease) within the recipient's authority.\55\
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\51\ 40 CFR part 7.
\52\ See 40 CFR 7.30, 7.35 (stating prohibitions against
discrimination).
\53\ See section VI (describing analysis for determining whether
adverse disparate impact exists).
\54\ See section VII (discussing justification).
\55\ See section VI.B.2. (discussing scope of investigation).
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It is worth noting that it is possible to have a violation of Title
VI or EPA's Title VI regulations based solely on discrimination in the
procedural aspects of the permitting process (e.g., public hearings,
translations of documents) without a finding of discrimination in the
substantive outcome of that process (e.g., discriminatory human health
or environmental effects). Likewise, it is possible to have a violation
due to discriminatory human health or environmental effects without the
presence of discrimination in the public participation process. It is
also important to keep in mind that OCR is committed to pursuing
informal resolution of Title VI complaints whenever possible because
informal resolution will often lead to the most expeditious and
effective outcome for all parties.\56\
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\56\ See section IV (discussing informal resolution).
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A. Summary of Steps
The steps that OCR will follow in complaint processing, as required
by EPA's Title VI implementing regulations, are summarized below. These
steps comport with the Federal government-wide standard for processing
Title VI complaints.\57\
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\57\ See 28 CFR 42.101 to 42.112 (DOJ's regulations implementing
Title VI); 28 CFR 42.401 to 42.415 (DOJ's regulations for
coordinating enforcement of Title VI); Executive Order 12250, 45 FR
72995 (1980) (Executive Order giving authority for coordinating
Federal government's implementation of Title VI to DOJ).
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1. Acknowledgment of Complaint
OCR will notify the complainant and the recipient in writing within
five calendar days of the receipt of the complaint by EPA.\58\ The
recipient may then make a written submission responding to, rebutting,
or denying the complaint within 30 calendar days of receiving the
notification.\59\
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\58\ 40 CFR 7.120(c).
\59\ 40 CFR 7.120(d)(1)(iii).
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2. Acceptance for Investigation, Rejection, or Referral
A complaint may contain more than one allegation. Each allegation
that satisfies the jurisdictional criteria \60\ will be accepted for
investigation \61\ within 20 calendar days of acknowledgment of its
receipt, and the complainant and the recipient will be so notified.\62\
In some cases, individual allegations within a single complaint may be
treated differently. Some allegations may meet the jurisdictional
criteria in EPA's implementing regulations, some may not, and still
others may need further clarification.
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\60\ See section III.A. (describing jurisdictional criteria).
\61\ ``Acceptance'' of a complaint merely indicates that the
complainant has satisfied the basic jurisdictional criteria
described in this section. The fact that OCR accepts a complaint for
investigation does not in any way mean that a finding of
noncompliance with Title VI will result. OCR must conduct an
investigation to determine whether the recipient has complied with
its Title VI responsibilities.
\62\ 40 CFR 7.120(d)(1)(i), (ii).
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If OCR does not accept an allegation for investigation, it will be
rejected or referred to the appropriate Federal agency.\63\ A referral
is appropriate when it is evident that another Federal agency has
jurisdiction over the subject matter.\64\ If a complaint lacks
sufficient information to determine whether any of the allegations
contained in it should be accepted for investigation, OCR expects to
request clarification. OCR will then decide whether to accept the
allegation for investigation or to reject it within 20 calendar days of
receiving the clarifying information. Failure of a complainant to
respond within the specified time period OCR provides in its letter
requesting clarification may result in rejection of those allegations.
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\63\ 40 CFR 7.120(d)(1).
\64\ 40 CFR 7.125.
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3. Investigation
OCR intends to promptly investigate all Title VI complaints that
satisfy the jurisdictional criteria.\65\ If a complaint is accepted for
investigation, OCR will first attempt to resolve it informally.\66\ If
informal resolution fails, OCR will conduct a factual investigation to
determine whether the permit(s) at issue will create an adverse
disparate impact or add to an existing adverse disparate impact on
persons based on race, color, or national origin. The investigation
would consider any steps taken by the recipient to address Title VI
concerns, as described in sections V and VI. Within 180 calendar days
from the start of the complaint investigation, OCR will notify the
recipient by certified mail of preliminary findings.\67\ If, based on
its investigation, OCR concludes that there is no discriminatory effect
(i.e., no unjustified adverse disparate impact), the complaint will be
dismissed.\68\ If OCR finds that there is a discriminatory effect, a
preliminary finding of noncompliance with EPA's Title VI regulations
will be made.\69\
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\65\ 40 CFR 7 120.
\66\ 40 CFR 7.120(d)(2). See also section IV. (discussing
informal resolution). Even in cases where informal resolution
occurs, OCR may investigate the allegations to some extent to get a
better understanding of the facts and circumstances.
\67\ 40 CFR 7.115(c)(1).
\68\ 40 CFR 7.120(g).
\69\ 40 CFR 7.115(c).
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[[Page 39671]]
4. Preliminary Finding of Noncompliance
If OCR makes a preliminary finding of noncompliance with the
regulations, it will notify both the recipient and the complainant, and
send a copy to the EPA grant award official (Award Official) and the
Assistant Attorney General for Civil Rights.\70\ OCR's notice generally
will include recommendations for the recipient to achieve voluntary
compliance and notification of the recipient's right to engage in
voluntary compliance negotiations.\71\ In determining whether a
recipient is in violation of Title VI or EPA's implementing
regulations, the Agency expects to assess whether the adverse disparate
impact results from factors within the recipient's authority to
consider as defined by applicable laws and regulations. The recipient
may submit a written response, within 50 calendar days of receiving the
preliminary finding, demonstrating that the preliminary findings are
incorrect or that compliance may be achieved through steps other than
those recommended by OCR.\72\
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\70\ 40 CFR 7.115(c).
\71\ Id.
\72\ 40 CFR 7.115(d).
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5. Formal Finding of Noncompliance
If, within 50 calendar days of receipt of the notice of preliminary
finding, the recipient either fails to submit a written response or
states that it does not agree to OCR's recommendations, OCR will issue
a formal written determination of noncompliance to the recipient within
14 calendar days. A copy of the formal determination of noncompliance
will also be sent to the Award Official and the Assistant Attorney
General for Civil Rights.\73\
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\73\ Id.
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6. Voluntary Compliance
EPA's Title VI regulations provide that the recipient will have 10
calendar days from receipt of the formal determination of noncompliance
within which to come into voluntary compliance.\74\ If the recipient
fails to meet this deadline, OCR must start procedures to deny, annul,
suspend, or terminate EPA assistance, or may use any other means
authorized by law to ensure compliance, including referring the matter
to DOJ for litigation.\75\
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\74\ See section VII.A.3. (discussing voluntary compliance), 40
CFR 7.115(e).
\75\ 40 CFR 7.115(e), 7.130(b). OCR may postpone or pause
proceedings to deny, annul, suspend, or terminate EPA assistance, if
the recipient has demonstrated a good faith effort (e.g., signed a
voluntary compliance agreement) to come into compliance.
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7. Hearing/Appeal Process
Within 30 calendar days of receipt of the formal finding of
noncompliance, the recipient must file a written answer and may request
a hearing before an EPA administrative law judge (ALJ). Following the
hearing and receipt of the ALJ's determination, the recipient may,
within 30 calendar days, file its exceptions to that determination with
the Administrator. The Administrator may elect to review the ALJ's
determination. If the Administrator decides not to review the
determination, then the ALJ's determination is final. If the
Administrator reviews the determination, all parties will be given
reasonable opportunity to file written statements. Subsequently, if the
Administrator decides to deny an application for financial assistance,
or annul, suspend, or terminate EPA assistance, that decision becomes
effective 30 calendar days after the Administrator submits a written
report to Congress.\76\
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\76\ 40 CFR 7.130(b).
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Recipients may be able to challenge EPA's finding in court.
Moreover, those who believe they have been discriminated against in
violation of Title VI or EPA's implementing regulations may challenge a
recipient's alleged discriminatory act in court without exhausting
their Title VI administrative remedies with EPA.\77\
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\77\ See Powell v. Ridge, 189 F.3d 387, 397-400 (3d Cir.), cert.
denied, 120 S. Ct. 579 (1999) (finding that citizens have a private
right of action under agency's regulations promulgated under section
602 of Civil Rights Act of 1964).
---------------------------------------------------------------------------
B. Roles and Opportunities To Participate
1. Recipients
OCR may work closely with recipients to ensure that the Agency has
a complete and accurate record of all relevant information pertaining
to the complaint, and a full understanding of the recipient's position
relating to the allegations. In order for OCR to perform the
appropriate analyses, one of the most important things recipients may
do as early as possible is to provide OCR with all of the information
relevant to the complaint, including, but not limited to, background
information, the permit application(s), monitoring data, computer
modeling, other aspects of the recipient's analysis of the
application(s), and any information relating to steps the recipient
took to address potential Title VI concerns, as described in Section V.
B. of this document. OCR may request interviews of a recipient's staff,
and copies of or access to relevant documents in the recipient's
possession. Moreover, under EPA's Title VI regulations, OCR has the
authority to obtain information from recipients and interview recipient
staff.\78\ Full and expeditious disclosure of such information would
facilitate resolution of Title VI complaints.\79\
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\78\ 40 CFR 7.85(b), (f).
\79\ In addition to considering information supplied by
recipients, OCR will also evaluate information provided by
complainants and may develop its own information and analyses.
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EPA's Title VI implementing regulations provide the recipient with
several opportunities to respond to the complaint and to OCR's finding.
First, the recipient may make a written submission responding to,
rebutting, or denying the allegations raised in a complaint within 30
calendar days of receiving notification that OCR has received the
complaint for investigation.\80\ Second, OCR will attempt to resolve
the complaint informally, during which time the recipient will be able
to state its position. Third, if OCR makes a preliminary finding of
noncompliance with the regulations, the recipient may submit a written
response within 50 calendar days of receiving the preliminary finding,
demonstrating that the preliminary findings are incorrect or that
compliance may be achieved through steps other than those recommended
by OCR.\81\ Finally, if OCR begins the procedure to deny, annul,
suspend, or terminate EPA assistance, recipients may request a hearing
before an ALJ \82\ and, if the ALJ's decision upholds a finding of
noncompliance, the recipient may then file exceptions with the
Administrator.\83\
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\80\ 40 CFR 7.120(d)(1).
\81\ 40 CFR 7.115(d).
\82\ 40 CFR 7.130(b)(2).
\83\ 40 CFR 7.130(b)(3).
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2. Complainants
Once OCR accepts a complaint for investigation, complainants may
play an important role in the administrative process; however, that
role is determined by the nature and circumstances of the claims. As
with the recipient, one of the most important things that complainants
may do is to provide OCR with all of the information in their
possession relevant to their complaint. OCR may request interviews of
complainants, and copies of or access to relevant documents in the
complainant's possession.
Also, complainants may play an important role in the informal
resolution process. Upon accepting a complaint for investigation, OCR
may suggest that the complainant and the recipient attempt to
informally resolve
[[Page 39672]]
their issues with minimal direct involvement by OCR. In such cases,
complainants would clearly have a significant role in the process.
Alternatively or in addition to that process, OCR may seek to
informally resolve the complaint directly with the recipient. In those
situations, the complainant's role is determined by the nature and
circumstances of the claims.
It is important to note that EPA does not represent the
complainants, but rather the interests of the Federal government, in
ensuring nondiscrimination by its recipients. The investigation of
Title VI complaints does not involve an adversarial process between the
complainant and the recipient. Instead, it should be viewed as OCR
following up on information that alleges EPA funds are being used
inappropriately. Consequently, the complainants do not have the burden
of proving that their allegations are true, although their complaint
should present a clearly articulated statement of the alleged
violation. It is OCR's job to investigate allegations and determine
compliance, although OCR may have difficulty conducting its
investigation if complainants are unable or unwilling to provide
relevant information. In addition, because the Title VI administrative
process is not an adversarial one between the complainant and
recipient, there are no appeal rights for the complainant built into
EPA's Title VI regulatory process.
III. Accepting or Rejecting Complaints
A. Criteria
It is the general policy of OCR to investigate all administrative
complaints concerning the conduct of a recipient of EPA financial
assistance \84\ that satisfy the jurisdictional criteria in EPA's
implementing regulations.\85\ OCR does not expect to investigate
complaints that are so incoherent that they cannot be considered to be
grounded in fact and those that fail to provide an avenue for
contacting the complainant (e.g., no phone number, no address).
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\84\ See 40 CFR 7.15.
\85\ See 40 CFR 7.120.
---------------------------------------------------------------------------
OCR intends to accept and investigate a complaint if it meets the
following jurisdictional criteria:
(1) It is written (i.e., oral complaints will not be accepted for
investigation); \86\
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\86\ 40 CFR 7.120(b)(1).
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(2) It identifies the entity that allegedly performed the
discriminatory act \87\ and describes the alleged discriminatory act(s)
that violates EPA's Title VI regulations (i.e., an act of intentional
discrimination or one that has the effect of discriminating on the
basis of race, color, or national origin); \88\
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\87\ Because EPA's Title VI regulations apply only to recipients
of EPA financial assistance, OCR will, within the 20-day period,
establish whether the person or entity that took the alleged
discriminatory act is in fact an EPA recipient as defined by 40 CFR
7.25.
\88\ 40 CFR 7.120(b)(1).
---------------------------------------------------------------------------
(3) It is filed within 180 calendar days of the alleged
discriminatory act(s); \89\ and
---------------------------------------------------------------------------
\89\ 40 CFR 7.120(b)(2); see also section III.B. (discussing
timeliness of complaints).
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(4) It is filed by:
(a) A person who was allegedly discriminated against in violation
of EPA's Title VI regulations;
(b) A person who is a member of a specific class of people that was
allegedly discriminated against in violation of EPA's Title VI
regulations; or
(c) A party that is authorized to represent a person or specific
class of people who were allegedly discriminated against in violation
of EPA's Title VI regulations.\90\
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\90\ 40 CFR 7.120(a). Information submitted by parties that does
not satisfy these criteria may be used by OCR to determine whether
to perform a compliance review under 40 CFR 7.110, 7.115.
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EPA's Title VI regulations state that OCR will make a determination
to accept for investigation, reject, or refer to the appropriate
Federal agency, a complaint within 20 calendar days of acknowledgment
of its receipt.\91\ Also, if OCR needs clarification before any of the
above listed determinations can be made on particular allegations, it
will request further clarification.
---------------------------------------------------------------------------
\91\ 40 CFR 7.120(d)(1).
---------------------------------------------------------------------------
If a complaint contains multiple allegations, it is possible that
OCR may reject some allegations, refer some allegations to other
appropriate Federal agencies, and/or request clarification on some
allegations. OCR will notify the complainant and the recipient of such
actions.\92\
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\92\ 40 CFR 7.120(d)(1)(ii).
---------------------------------------------------------------------------
It is expected that some recipients may voluntarily adopt
individual activities or more comprehensive approaches designed to
identify and address potential Title VI concerns. Section II of the
Draft Recipient Guidance discusses steps that recipients can take to
reduce the likelihood of Title VI complaints, including emphasizing
effective public participation and identifying areas for development of
agreements to reduce impacts. The identification and remedy of such
concerns, independent of a particular permitting decision or early in a
permitting process, may lead to generalized improvements in public
health and the environment and may reduce the number of Title VI
complaints filed with EPA. Recipients can combine individual activities
and approaches encouraged in the Draft Recipient Guidance to address a
range of potential issues that might result in Title VI complaints.\93\
However, OCR's threshold decision to accept a complaint for
investigation or to reject it is based on the jurisdictional criteria
provided in EPA's Title VI regulations,\94\ regardless of whether the
recipient adopted any individual activities or a more comprehensive
approach to address Title VI concerns.
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\93\ See Sections V.B.2. and VI.B.1.b. (discussing ``due
weight'' for recipient's complaint-specific analyses and other Title
VI efforts).
\94\ See 40 CFR 7.120; see also Section III.A.
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B. Timeliness of Complaints
1. Start of 180-day ``Clock''
Under EPA's regulations, a complaint must be filed within 180
calendar days of the alleged discriminatory act.\95\ Complaints
alleging discriminatory effects resulting from a permit should be filed
with EPA within 180 calendar days of issuance of that permit. If the
180th day falls on a weekend or holiday, that day will not be counted
and the deadline for filing will be extended to the next business day.
However, weekends and holidays that occur before the 180th day should
be counted toward the 180 days. OCR generally considers a complaint to
be ``filed'' on the date that it arrives at EPA, not on the date that
the complaint is mailed or otherwise transmitted to EPA by the
complainant. EPA will likely accept a complaint alleging a continuing
violation as long as action subject to Title VI has occurred within the
180-day period.
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\95\ 40 CFR 7.120(b)(2). It should be emphasized that ``180
calendar days'' is not the same as ``six months.''
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Allegations concerning a discriminatory public participation
process should be filed within 180 calendar days of the alleged
discriminatory act in that process. For example, if complainants allege
that the recipient improperly excluded them from participating in a
hearing, then the complaint should be filed within 180 calendar days of
that hearing.
Complaints not filed within the 180 calendar day time period will
generally be considered untimely and will not be accepted for
investigation. While a specific complaint may be rejected on the basis
of untimeliness, OCR may choose to conduct a compliance review of the
recipient's relevant permit
[[Page 39673]]
program either at that point in time or at some future date.\96\
---------------------------------------------------------------------------
\96\ See, 40 CFR 7.110, 7.115.2. Good Cause Waiver
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OCR may waive the 180-day time limit for good cause.\97\ OCR will
determine on a case-by-case basis whether to waive the time limit for
good cause.
---------------------------------------------------------------------------
\97\ 40 CFR 7.120(b)(2).
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3. Ongoing Permit Appeals or Litigation
OCR will generally dismiss complaints without prejudice \98\ if the
issues raised in the complaint are the subject of either ongoing
administrative permit appeals or litigation in Federal or state court.
The outcome of such permit appeals or litigation could affect the
circumstances surrounding the complaint and any investigation that OCR
may conduct. In such cases, OCR believes that it should await the
results of the permit appeal or litigation. As a result, such
complaints will generally be closed, but OCR expects to waive the time
limit to allow complainants to re-file their complaints after the
appeal or litigation, rather than conduct a simultaneous investigation
on the basis of facts that may change due to the outcome of the
administrative appeal or litigation.
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\98\ In other words, OCR may dismiss the complaint, but that
dismissal would not prohibit the complainant from re-filing its
complaint at a later date.
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a. Permit Appeal Processes: OCR believes, in making a good cause
determination, that it is appropriate to consider a complainant's
pursuit of its Title VI concerns through the recipient's administrative
appeal process. This will encourage complainants to exhaust
administrative remedies available under the recipient's permit appeal
process and foster early resolution of Title VI issues. Under such
circumstances and after evaluating other considerations relevant to the
particular case, OCR may waive the 180 day filing time limit if the
complaint is filed within a reasonable time period after the conclusion
of the administrative appeal process. Generally, that reasonable time
period will be no more than 60 calendar days.
b. Litigation: If the complainant seeks to pursue a Title VI
complaint with OCR on issues that are the subject of ongoing Federal or
state court litigation, the complaint should be re-filed within a
reasonable time period, generally no more than 60 calendar days after
the conclusion of the litigation. However, OCR may choose not to
proceed with a complaint investigation if the allegations in the
complaint were actually litigated and substantively decided by a
Federal court. For example, if a Federal court reviewed evidence
presented by both parties and issued a decision that stated the
allegations of discrimination were not true, OCR may choose not to
investigate allegations in the complaint that deal with those same
issues. In addition, if a state court reviewed evidence presented by
both parties and issued a decision, then OCR may consider the outcome
of the court's proceedings to determine if they inform OCR's decision
making process.
Generally, OCR may choose to investigate if the complaint raises
issues that were not actually litigated or substantively decided by a
Federal court, or if it raises unique and important legal or policy
issues. OCR may look for guidance to judicial principles and other
provisions of law on how prior court decisions may affect OCR's
determination of whether to investigate a complaint.
4. Premature Complaints
When complaints alleging discriminatory effects from a permit are
filed prior to the issuance of the permit by the recipient, OCR expects
to notify the complainant that the complaint is premature and dismiss
the complaint without prejudice. If the complainant is not satisfied
Title VI nondiscrimination requirements have been met when the permit
is issued, the complainant can re-file its compliant if and when the
permit is issued. In any case, OCR intends to provide the recipient
with a copy of the complaint to facilitate the recipient's ability to
appropriately address the concerns raised in the complaint during the
permitting process.
IV. Resolving Complaints
EPA's Title VI regulations call for OCR to pursue informal
resolution of administrative complaints wherever practicable.\99\ To
conserve EPA investigative resources and to obtain beneficial results
for the parties, EPA encourages pursuit of informal resolution from the
beginning of the administrative process. The term ``informal
resolution'' refers to any settlement of complaint allegations prior to
the issuance of a formal finding of noncompliance. Settlement after a
formal finding is referred to as reaching ``voluntary compliance.''
Voluntary compliance agreements must be in writing, set forth the
specific steps the recipient has agreed to take, and be signed by the
Director of OCR or her designee and an official with legal authority to
bind the recipient.\100\
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\99\ 40 CFR 7.120(d)(2).
\100\ 40 CFR 7.115(f).
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A. Reaching Informal Resolution
OCR will encourage informal resolution in both the notification of
receipt of a complaint and again with acceptance of a complaint for
investigation. Informal resolution may follow either of the two
approaches below.
1. Informal Resolution Between Recipient and Complainant
The first approach is for the recipients and complainants to try to
resolve the issues between themselves. To the extent resources are
available, EPA expects to provide support for efforts at informal
resolution. If the resolution results in withdrawal of the Title VI
administrative complaint, OCR would expect to dismiss the complaint,
notify the recipients and complainants, and close the complaint file.
OCR encourages recipients to consider the use of alternative dispute
resolution (ADR) techniques when appropriate to informally resolve the
complaint. ADR includes a variety of approaches including the use of a
third party neutral acting as a mediator or the use of a structured
process through which the parties can participate in shared learning
and creative problem solving to reach a consensus.\101\
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\101\ See Draft Recipient Guidance, Section II.B.5. (providing
additional information about alternative dispute resolution).
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2. Informal Resolution Between EPA and Recipient
A second approach is for OCR and the recipient to reach agreement
on relief. Depending upon the facts and circumstances of the complaint,
OCR may seek participation from the complainant, the permittee, or
others. In appropriate situations, OCR expects to use ADR techniques to
informally resolve the complaint.
OCR will discuss offers by recipients to reach informal resolution
at any point during the administrative process before the formal
finding. However, it is OCR's responsibility to ensure that the
interests of the Federal government are served and no violations of
Title VI or EPA's implementing regulations exist in a recipient's
programs or activities. Therefore, before any agreement between the
recipient and OCR can be reached, an investigation may be needed to
determine the appropriate relief and/or corrective action necessary to
eliminate or reduce to the extent required by Title VI the adverse
disparate impacts.
[[Page 39674]]
B. Implementing Informal Resolutions 102
As described above, EPA encourages recipients to informally resolve
Title VI complaints with complainants and/or OCR. In appropriate
circumstances, the Agency expects that measures that eliminate or
reduce to the extent required by Title VI the alleged adverse disparate
impacts will be an important focus of the informal resolution process.
Denial of the permit at issue will not necessarily be an appropriate
solution. It will likely be a rare situation where the permit that
triggered the complaint is the sole reason a discriminatory effect
exists. During the informal resolution process, whether with EPA or
with complainants, recipients can offer to provide various measures to
reduce or eliminate impacts that are narrowly tailored toward
contributing sources, including the permit at issue, using the
recipient's existing permitting authorities. Such measures include
changes in policies or procedures, additional pollution control,
pollution prevention, offsets, and emergency planning and response.
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\102\ See Draft Recipient Guidance, section II.B.6. (providing
additional information about remedial measures).
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Alternatively or in addition, during the informal resolution
process, recipients can propose broader measures that are outside those
matters ordinarily considered in the permitting process. For example,
in response to a complaint alleging that airborne lead emissions from a
permitted facility will have an adverse disparate impact on nearby
residents, the recipient and complainant could agree to an informal
resolution under which the recipient would obtain lead emissions
reductions from that facility, as well as from other facilities
contributing lead emission in the area. The recipient could also offer
to work with other agencies to establish a household lead abatement
program to further reduce the facility's impact.\103\ If the issues are
informally resolved and the complainant withdraws the complaint, OCR
expects to close its investigation.
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\103\ See Draft Recipient Guidance, section II.B.4. (providing
additional information about intergovernmental involvement).
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During the informal resolution process, the recipient may
independently submit a plan to OCR to eliminate or reduce, to the
extent required by Title VI, adverse disparate impacts. While the plan
may be developed without consulting with complainants or others, EPA
expects that informal resolution will be more successful if recipients
work with OCR, complainants, and other appropriate parties to develop a
plan for eliminating or reducing the alleged adverse disparate impact.
Cooperative approaches, such as area-specific agreements \104\ to
eliminate or reduce, to the extent required by Title VI, adverse
disparate impacts, will more likely adequately address the Title VI
concerns.
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\104\ See sections V.B.2. and VI.B.1.b. (discussing area-
specific agreements); see also, Draft Recipient Guidance, section
II.A.2. (describing geographic area-specific approaches).
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If the recipient is pursuing a resolution with OCR, the sufficiency
of such an approach would likely be evaluated in consultation with
experts in the EPA program at issue. OCR may also consult with
complainants, although their consent is not necessary. If, based on its
review, OCR agrees that the adverse disparate impact will be eliminated
or reduced, to the extent required by Title VI, pursuant to the plan,
the parties will be so notified. Assuming that sufficient assurances
are provided regarding implementation of such a plan, the complaint
would be resolved and closed. The measures should be established in a
settlement agreement to be monitored by OCR. Any settlement agreement
should provide for enforcement by EPA, which may include special
conditions on future assistance grants for failure to comply with the
agreement.
It may be possible to reach informal resolution regarding some, but
not all, of the allegations OCR accepts for investigation. Those not
informally resolved will be investigated and resolved through the
process outlined in EPA's Title VI regulations and in accordance with
this guidance. OCR may also reopen a complaint if the recipient does
not comply with its commitments in the settlement agreement.
V. Investigative Procedures
The process of investigating a Title VI complaint is not analogous
to a judicial process in which plaintiffs and defendants must each
present information and arguments supporting a particular finding. EPA,
like other Federal agencies, is responsible for investigating formal
complaints concerning the administration of programs by recipients of
financial assistance. However, EPA expects that this process will often
be substantially improved and expedited by information submitted by
complainants and recipients.
A. Submission of Additional Information
During the course of the investigation, complainants and recipients
may submit additional relevant information to supplement EPA's
analyses. OCR intends to balance the need for a thorough investigation
with the need to complete the investigation in a timely manner.
Therefore, at the conclusion of interviews of the complainants,
recipients, or other witnesses, OCR expects to ask each to submit,
within a reasonable time of the interview (e.g., 14 calendar days), any
additional information that they would like considered as OCR drafts
its investigative report.
EPA encourages recipients to adopt individual activities or more
comprehensive approaches designed to identify and address potential
Title VI concerns. Section II of the Draft Recipient Guidance offers
suggestions that recipients can take to reduce the likelihood of Title
VI complaints, including emphasizing effective public participation,
and identifying areas for development of agreements to reduce impacts.
The identification and remedy of such concerns, independent of a
particular permitting decision or early in a permitting process, may
lead to generalized improvements in public health and the environment,
and may reduce the number of Title VI complaints filed with EPA. OCR
will carefully review any information provided by a recipient
concerning the procedures and outcomes of programs adopted to address
Title VI concerns.
B. Granting Due Weight to Submitted Information
Under the Civil Rights Act of 1964, EPA is charged with assuring
compliance with Title VI and cannot delegate its responsibility to
enforce Title VI to its recipients.\105\ Therefore, OCR cannot grant a
recipient's request that EPA defer to a recipient's own assessment that
it has not violated Title VI or EPA's regulations or that EPA rely on
an assertion that a Title VI program has been followed.\106\ Thus, with
regard
[[Page 39675]]
to the processing of Title VI complaints, EPA is required to retain
the:
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\105\ 42 U.S.C. 2000d-1.
\106\ See 28 CFR 50.3(b) (``Primary responsibility for prompt
and vigorous enforcement of Title VI rests with the head of each
department and agency administering programs of Federal financial
assistance.''); Memorandum from Bill Lann Lee, Acting Assistant
Attorney General, U.S. Department of Justice, to Executive Agency
Civil Rights Directors, p. 3 (Jan. 28, 1999) (titled Policy Guidance
Document: Enforcement of Title VI of the Civil Rights Act of 1964
and Related Statutes in Block Grant-Type Programs) (``It is
important to remember that Federal agencies are responsible for
enforcing the nondiscrimination requirements that apply to
recipients of assistance under their programs.'').
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Ability to supplement the recipient's analysis or to
investigate the issues de novo;
Approval authority over any proposed resolution; and
Ability to initiate its own enforcement actions and
compliance reviews.
1. Analyses or Studies \107\
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\107\ While recipients are not required to submit complaint-
specific analyses or to develop more comprehensive Title VI
approaches, such as the area-specific agreements described below,
such efforts could help avoid Title VI problems by identifying and
addressing potential adverse disparate impacts.
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In response to allegations, or during the course of an
investigation, recipients as well as complainants may submit evidence
such as data and analyses to support their position that an adverse
disparate impact does or does not exist.\108\ EPA believes that it can,
under certain circumstances, recognize the results of such analyses and
give them appropriate due weight.
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\108\ This Draft Revised Investigation Guidance is limited to
investigating allegations of discriminatory effects resulting from
the issuance of permits; therefore, investigatory techniques and the
concept of due weight applied in the context of allegations
regarding discrimination in public participation processes are not
addressed. However, the Draft Recipient Guidance, section II.C.
contains a discussion of the circumstances under which OCR might
accord a public participation process due weight.
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OCR would expect that a relevant adverse impact analysis or a
disparity analysis would, at a minimum, generally conform to accepted
scientific approaches. It may focus on a spectrum of potential adverse
impacts, such as described in the analytical framework set forth in
section VI below, or may be more focused, such as upon the impact of a
specific pollutant on nearby populations (e.g., a study regarding the
impact of lead emissions on blood lead levels in the surrounding area).
The weight given any information related to the level or existence of
adverse impacts and the extent to which OCR may rely on it in its
decision will likely vary depending upon the following elements:
Relevance of the evidence to the alleged impacts;
Validity of the methodologies;
Completeness of the documentation submitted;
Degree of consistency between the methodology used, and
the findings and conclusions; and
Uncertainties of the input data and results.
Consequently, submitted materials would be subject to scientific
review by EPA experts.
OCR expects to give more weight to submitted analyses that are
relevant to the Title VI concerns in the complaint and have sufficient
scope, completeness, and accuracy. If the analyses submitted meet the
elements above, OCR will not seek to duplicate or conduct such
analyses, but instead will evaluate the appropriateness and validity of
the relevant methodology and assess the overall reasonableness of the
outcome or conclusions at issue.
If the elements above are met, then OCR will likely rely on the
evidence in its decision. In the instance where a submitted analysis
shows no adverse disparate impact exists, and the analysis generally
follows the procedures in section VI below and meets the elements
described above, then OCR may rely on it in a finding that the
recipient is in compliance with EPA's Title VI regulations. If OCR's
review reveals that the evidence contains significant deficiencies with
respect to the elements above, then the analysis will likely not be
relied upon in OCR's decision.
2. Area-specific Agreements
In the Draft Recipient Guidance, EPA encourages recipients to
identify geographic areas where adverse disparate impacts may exist and
to enter into agreements with affected residents and stakeholders to
eliminate or reduce, to the extent required by Title VI, adverse
disparate impacts in those specific areas.\109\ Collaboration with
communities and other appropriate stakeholders to develop the criteria
used to identify the geographic areas and in designing potential
solutions to address any adverse disparate impacts will be an important
element of the approach.
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\109\ See Draft Recipient Guidance, section II.A.2. (discussing
area-specific agreements).
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An example of an approach to develop an area-specific agreement
might be where a recipient, in collaboration with communities and other
appropriate stakeholders, identifies a section of a city as an area
where permitted lead emissions are contributing to discriminatory
health effects on African Americans. The recipient then might convene a
group of stakeholders with the ability to help solve the identified
lead problem, including owners of facilities with lead emissions, other
state and local government agencies, affected community members, and
non-governmental organizations. The group may develop an agreement
where each party agrees to particular actions that will eliminate or
reduce the adverse lead impacts in that specific area.
Another example might be an area-specific agreement that
establishes a ceiling on pollutant releases with a steady reduction in
those pollutants over time. The period of time over which those
reductions should occur will likely vary with a number of factors,
including the magnitude of the adverse disparate impact, the number and
types of sources involved, the scale of the geographic area, the
pathways of exposure, and the number of people in the affected
population. It is worth noting, however, that pre-existing obligations
to reduce impacts imposed by environmental laws (e.g., ``reasonable
further progress'' as defined in Clean Air Act section 171(1)) might
not be sufficient to constitute an agreement meriting due weight. Also,
area-specific agreements need not be limited to one environmental media
(e.g., air emissions), they may also cover adverse disparate impacts in
several environmental media (e.g., air and water).
If OCR accepts a complaint for investigation involving allegations
of adverse disparate impacts related to any of the permitting actions
covered by an area-specific agreement, OCR expects, under certain
circumstances, to review and give due weight to the agreement if it:
Is supported by underlying analyses that have sufficient
depth, breadth, completeness, and accuracy, and are relevant to the
Title VI concerns; and
Will result in actual reductions over a reasonable time to
the point of eliminating or reducing, to the extent required by Title
VI, conditions that might result in a finding of non-compliance with
EPA's Title VI regulations.\110\
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\110\ The determination that an area-specific agreement will
result in actual reductions of adverse disparate impacts will likely
entail many of the same steps described in sections VI.B.2 through
4.
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The greatest weight OCR could accord such an agreement is to find
that the actions taken under it will eliminate or reduce, to the extent
required by Title VI, existing adverse disparate impacts. If OCR makes
such a finding, it would then close its investigation into the
allegation.
If a later-filed complaint raises allegations regarding other
permitting actions by the recipient that are covered by the same area-
specific agreement, OCR would generally rely upon its earlier finding
and dismiss the allegations. An exception to this general guideline
would occur where there is an allegation or information revealing that
circumstances had changed substantially such that the area-specific
[[Page 39676]]
agreement is no longer adequate or that it is not being properly
implemented.
If OCR's review reveals that the area-specific approach, the
specific agreement, or its underlying analyses do not result in actual
reductions to the point of significantly reducing or eliminating
impacts that would result in a finding of non-compliance with EPA's
Title VI regulations, then it will likely not be relied upon in OCR's
decision. In that instance, OCR would be more likely to conduct a
first-hand investigation of the allegations. Throughout the
investigation, EPA also intends to consider other available
information, including information submitted by complainants.
C. Submission of Additional or Amended Complaints
During the course of OCR's investigations, complainants can also
submit additional allegations of violations of EPA's Title VI
regulations. Each additional allegation would have to satisfy the
jurisdictional criteria described in section III.A. above in order to
be accepted for investigation.\111\ Generally, the additional
allegations will be considered a new and separate complaint. In some
cases, for reasons of efficiency, OCR may treat the new allegations as
amendments to the existing complaint and incorporate them into the
existing investigation.
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\111\ See 40 CFR 7.120.
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For example, assume OCR accepts a complaint for investigation that
only alleges that a recently issued water discharge permit has a
discriminatory human health impact on African Americans. Two months
after OCR conducts interviews, complainants attempt to amend their
complaint by alleging that two air emissions permits issued for a
different part of the source have a discriminatory effect on African
Americans. In this instance, OCR will generally consider the
allegations regarding the air permits as a new complaint, not an
amendment to the existing complaint, because incorporating the new
allegations would substantially change the scope of the existing
investigation. Complainants and recipients will be appropriately
notified.
If a complainant amends its complaint with additional allegations
before OCR decides to accept for investigation, reject, or refer the
allegations to another Federal agency, OCR intends to acknowledge
receipt of the new allegations and notify the recipient. Both the
complainant and the recipient should also be notified that OCR expects
to make a determination to accept for investigation, reject, request
clarification, or refer all of the allegations within 20 calendar days
of receipt of the most recent allegations.\112\
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\112\ 40 CFR 7.120(d)(1).
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D. Discontinued Operations/Mootness
OCR expects to dismiss allegations about discriminatory effects of
a permit if, prior to commencement of any activities allowed by the
permit and before OCR completes its investigation, that permit is
withdrawn or revoked, or if a final decision is made by the permittee
not to operate under that permit. If the activities commence under the
permit at issue, but are permanently halted for any reason prior to the
conclusion of OCR's investigation, OCR may continue its investigation
because some discriminatory effects may have occurred as a result of
operations. However, the current status of the source should be taken
into account in the analysis. OCR expects that other allegations that
are not specific to the permit (e.g., allegations concerning state-wide
issues) would not be closed because those issues may continue to exist
notwithstanding the status of the permit.
E. Filing/Acceptance of Title VI Complaint Does Not Invalidate Permit
Neither the filing of a Title VI complaint nor the acceptance of
one for investigation by OCR stays the permit at issue.
VI. Adverse Disparate Impact Analysis
Evaluations of alleged violations of EPA's Title VI regulations
should be based upon the facts and totality of the circumstances that
each case presents, and show both an adverse and disparate effect.
Rather than using a single technique for analyzing and evaluating
adverse disparate impact allegations in all situations, OCR expects to
use several techniques within the broad framework discussed here.
Moreover, OCR expects that parts of the analytical framework described
in this section will be omitted, altered, or supplemented to address
the particular characteristics of each complaint. Any method of
evaluation chosen within that framework will be a reasonably reliable
indicator of the level of potential adverse impacts and disparity.
A. Framework for Adverse Disparate Impact Analysis
The framework that OCR expects to use for determining whether an
adverse disparate impact exists should generally be performed in a
step-wise fashion in the order set forth below.
Step 1: Assess Applicability
Determine the type of permit action at issue (i.e., new
permit, renewal, modification). Generally, OCR will not initiate an
investigation where the permit that triggered the complaint is a
modification, such as a facility name change or a change in a mailing
address, that does not involve actions related to the stressors
identified in the complaint.
Determine whether the relevant permit is covered by an
area-specific agreement that OCR has already determined will eliminate
or reduce, to the extent required by Title VI, the adverse disparate
impacts. If so, then the investigation of the allegation will likely be
closed.\113\
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\113\ See section V.B.2. (discussing criteria for area-specific
agreements that would receive due weight).
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If the complaint alleges discriminatory effects from
emissions, including cumulative emissions, determine whether the permit
action that triggered the complaint significantly decreases overall
emissions at the facility. If so, then OCR will likely close the
investigation of allegations regarding cumulative impacts.
If the complaint alleges discriminatory effects from
emissions, including cumulative emissions, and it specifies certain
pollutants of concern, determine whether the permit action that
triggered the complaint significantly decreases those pollutants of
concern named in the complaint or those pollutants EPA reasonably
infers are the potential source of the alleged impact. If so, then OCR
will likely close the investigation of allegations regarding cumulative
impacts.
Step 2: Define Scope of Investigation: Determine the nature of
stressors, sources of stressors, and/or impacts cognizable under the
recipient's authority; review available data; determine which sources
of stressors should be included in the analysis; and develop a project
plan.
Step 3: Conduct Impact Assessment: Determine whether the activities
of the permitted entity at issue, either alone or in combination with
other relevant sources, are likely to result in an impact.
Step 4: Make Adverse Impact Decision: Determine whether the
estimated risk or measure of impact is adverse. If the impact is not
adverse, the allegation will not form the basis of a finding of non-
compliance with EPA's Title VI regulations and will be closed. If the
permit action clearly leads to a decrease in adverse disparate impacts,
it is not expected to form the basis of a finding of a recipient's non-
compliance with EPA's Title VI regulations and will be closed.
[[Page 39677]]
Step 5: Characterize Populations and Conduct Comparisons: Determine
the characteristics of the affected population. Conduct an analysis to
determine whether a disparity exists between the affected population
and an appropriate comparison population in terms of race, color, or
national origin, and adverse impact.
Step 6: Make Adverse Disparate Impact Decision: Determine whether
the disparity is significant. If it is not significant, the allegation
will not likely form the basis of a finding of non-compliance with
EPA's Title VI regulations and will likely be closed.
Each of these steps is described more fully below.
B. Description of Adverse Disparate Impact Analysis
1. Assess Applicability
Assessing the applicability involves three initial considerations
as outlined below.
a. Determine Type of Permit: Allegations that concern impacts
resulting from a recipient's permitting actions can arise in several
different contexts: (1) The issuance of new permits; (2) the renewal of
existing permits; and (3) the modification of existing permits.
Regardless of the type of permit involved, if a complaint is filed with
OCR alleging that the recipient violated Title VI or EPA's regulations,
OCR's decision to accept the complaint for investigation or to reject
it must be based on the jurisdictional criteria provided in EPA's Title
VI regulations.\114\
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\114\ 40 CFR 7.120. See also section III.A.
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Modifications, such as a facility name change or a change in a
mailing address, that do not involve actions related to the stressors
identified in the complaint, generally will not form the basis for a
finding of noncompliance and will likely be closed.
The following type of permit actions could form the basis for
initiating a Title VI investigation of the recipient's permitting
program:
Permit actions, including new permits, renewals, and
modifications, if the permit causes a net increase in the level of
stressors or predicted risks or measures of impact (e.g., an increase
in pollutants with no offsetting reductions).
Permit actions, including new permits, renewals, and
modifications, that allow existing levels of stressors, predicted
risks, or measures of impact to continue unchanged.
If an allegation regarding a permit modification is accepted for
investigation, EPA expects the analysis would only evaluate the
modification and its effects.
There are two situations where OCR will likely close its
investigation into allegations of discriminatory effects:\115\
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\115\ This guidance does not alter in any way, a regulated
entity's obligation to comply with applicable environmental laws.
Merely proposing a decrease in emissions does not entitle the permit
applicant to a permit.
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(1) If the complaint alleges discriminatory effects from emissions,
including cumulative emissions, and the permit action that triggered
the complaint significantly decreases overall emissions \116\ at the
facility; and
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\116\ Assessing a significant overall decrease would entail
taking into account factors such as total quantity and relative
toxicity of the emissions reductions.
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(2) If the complaint alleges discriminatory effects from emissions,
including cumulative emissions, and the permit action that triggered
the complaint significantly decreases all pollutants of concern named
in the complaint or all the pollutants EPA reasonably infers are the
potential source of the alleged impact.\117\
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\117\ It is important to remember that OCR will treat a decrease
in emissions at a particular facility differently from an area-
specific agreement that eliminates adverse disparate impacts as
discussed in section V.B.2. While the decrease in emissions from a
single permit may result in dismissal of the instant complaint,
other complaints regarding permit renewals and increases in
emissions for other sources in the area may be investigated.
However, if OCR determines that an area-specific agreement meets the
criteria described in section V.B.2, then investigations into future
complaints regarding permit actions covered by the area-specific
agreement generally will be closed.
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In both situations, the recipients should demonstrate \118\ (not
merely assert) that the decrease is actual and is significant.\119\ The
decreases should be in the same media, as well as from the same
facility, as alleged in the complaint (i.e., a decrease in discharges
to water may not form the basis for closing investigations into
allegations of cumulative air impacts). The decreases are measured
based on actual, contemporaneous \120\ emissions from the facility
being permitted. In situations where OCR determines that significant
uncertainty exists regarding the significance of the overall decrease
or whether the decrease will actually occur, OCR will normally resolve
such uncertainty in favor of proceeding to investigate for potential
discriminatory effects. If the permit action includes an increase in
any emissions, then it would generally result in a decision to
investigate the cumulative impact allegation.
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\118\ A recipient may use actual monitoring data, reasonable
estimates, permit limits, parametric monitoring, or any other
reliable means to demonstrate the decrease to the satisfaction of
EPA.
\119\ EPA will determine significance of a decrease in the
context of a specific case.
\120\ Contemporaneous emissions decreases are required. Banking
over time is not a basis for a decrease dismissal.
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OCR will determine the relevant pollutant(s) or stressors of
concern based on the allegations in the complaint. However, if a
complaint does not explicitly name or refer to particular pollutants or
stressors of concern and refers generally to ``cumulative impacts'' or
``overburdened'' communities, EPA will use its expertise to determine
which pollutants or stressors are of concern based on the complaint and
the permitting action at issue.
While a specific complaint may be dismissed on the basis of a
decrease, OCR may choose to conduct a compliance review of the
recipient's relevant permit program either at that point in time or at
some future date.\121\ The analysis of whether discriminatory effects
result from cumulative emissions, and any resulting remedy, would
include consideration of the emissions from the permit actions that
triggered the original complaint (i.e., the one that had the decrease).
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\121\ See 40 CFR 7.110, 7.115.
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The above discussion regarding decreases does not affect
allegations relating to public participation.
b. Determine if Permit is Part of an Agreement to Reduce Adverse
Disparate Impacts: Recipients may have identified geographic areas
where adverse disparate impacts may exist, and may have entered into
agreements with the affected communities and stakeholders to reduce
impacts in those specific areas.\122\ If the relevant permit is covered
by an area-specific agreement that OCR has already determined will
eliminate adverse disparate impacts, then the allegation will likely be
closed.
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\122\ See section V.B.2. (discussing criteria for area-specific
agreements that would receive due weight).
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2. Define Scope of Investigation
Determine the nature of stressors, sources of stressors, and/or
impacts cognizable under the recipient's authority; review available
data; determine which sources of stressors should be included in the
analysis; and develop a project plan.
In defining the scope of an investigation, OCR expects to rely on
four sets of information: The complaint's allegations, an understanding
of the recipient's authorities, the results of an evaluation of
relevant scientific information, and relevant available data. In
particular, assessing background sources of stressors (e.g., mobile
source air
[[Page 39678]]
emissions, non-point source runoff) allegedly contributing to
discriminatory effects, as discussed below, may be required to
understand whether an adverse impact is created or exacerbated.
However, in determining whether a recipient is in violation of Title VI
or EPA's implementing regulations, the Agency expects to account for
the adverse disparate impacts resulting from sources of stressors,
stressors, and/or impacts cognizable under the recipient's
authority.\123\
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\123\ See section VII (discussing findings of noncompliance).
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a. Determine the Nature of Stressors and Impacts Considered: In
determining the nature of stressors (e.g., chemicals, noise, odor) and
impacts to be considered, OCR would expect to determine which stressors
and impacts are within the recipient's authority to consider, as
defined by applicable laws and regulations. These could include laws
and regulations that concern permitting programs and laws and
regulations that involve broader, cross-cutting matters, such as state
environmental policy acts. For example, a state statute might require
all major state actions (including the issuance of certain air
pollution control permits) to take into consideration impacts resulting
from noise and odors associated with the action. Even if these were not
explicitly covered by the permitting program, they would appropriately
be considered as part of the adverse disparate impact analysis, since
the recipient has some obligation or authority regarding them. A
recipient need not have exercised this authority for the stressor or
impact to be deemed within the recipient's authority to consider.
OCR will also review the allegations presented in the complaint
concerning geographic scope, sources of concern, pollutants or other
stressors, and potentially affected populations. OCR expects to
supplement this review using available data on identified stressors, as
well as others that may be associated with the identified permitted
activities, (e.g., TRI and other pollutant inventories that include
chemicals not listed in most permits) and other sources of stressors.
This review will include information about the characteristics of the
sources and stressors (e.g., toxicity, physical-chemical properties) as
well as available reports describing possible exposures or risks of
release of stressors from permitted activities and sources.
b. Determine Universe of Sources: In performing assessments of
potential adverse disparate impacts, OCR may consider other relevant
and/or nearby sources of similar stressors for inclusion in the
analysis. Those included in the analysis are referred to as the
universe of sources. When a complaint contains more than one
allegation, there may be more than one appropriate universe of sources
for an investigation. OCR intends to determine the appropriate
universe(s) of sources based upon the allegations and facts of a
particular case.
As noted above, the relevant universe of sources contributing to
the potential adverse impacts could include, if appropriate, background
sources (e.g., mobile source air emissions, non-point source runoff).
For example, in the case of lead, preexisting or estimated children's
blood lead levels that may result from both a permitted source and
household lead paint exposures would be used to help decide whether
additional emissions of lead are adverse. Thus, cumulative impacts of
regulated and unregulated sources can be considered to determine the
cumulative level of potential adverse impacts. OCR would generally
expect to assess potential adverse cumulative impacts to the extent
appropriate data are available, taking into account the uncertainties
associated with the data.
In many cases, the nature of the sources of stressors, the
stressors, or the impact being alleged is clear from the complaint. For
example, complainants may allege that air emissions from specific
chemical plants have resulted in higher cancer rates for Hispanics
living near those facilities. In some cases, the nature of the sources
of stressors or other important information, is not clear. For example,
complainants may allege that Asian Americans are ``overburdened by
pollution'' or suffer a variety of impacts from multiple, unidentified
types of sources.
In cases where it is unclear, OCR will attempt to determine the
source of the stressors and/or the nature of the impact(s) being
alleged, based on the type of permitted entity at issue and the kinds
of impacts EPA expects could result from the situation described in the
complaint. This determination would be made after consulting such
resources as scientific literature reviews, engineering studies, and
technical experts.
In addition to considering the scope of the allegations and the
circumstances of each complaint, OCR expects that the universe of
sources will fall into three main categories. One category includes
allegations that involve a permitted facility that is one of a number
of similar sources in a geographic area. These facilities, together or
in conjunction with background sources, may present a cumulative
adverse disparate impact or may reflect a pattern of adverse disparate
impact. In these cases, OCR expects an assessment will need to evaluate
the cumulative impacts of pollution from a broad universe of regulated
and permitted sources \124\ (e.g., large manufacturing facilities), as
well as regulated but usually unpermitted sources (e.g., some paint
stripping or metal finishing operations, mobile sources, sources of
surface water runoff), and unregulated sources.
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\124\ In this context, ``regulated or permitted'' sources
include those with permits, as well as those subject to Federal or
state requirements for reporting of waste generation or emissions
(e.g., Toxics Release Inventory reporters, Resource Conservation and
Recovery Act hazardous waste generator sites).
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Another universe of sources may include only those that are
regulated or permitted. For example, a complaint may allege that the
permitting of sanitary landfills throughout the state resulted in
discriminatory human health effects for African Americans. If the
complaint does not contain an allegation of cumulative impacts from
multiple sources, then without any evidence to suggest that permitted
sanitary landfills is an inappropriate universe of sources, OCR would
investigate the impacts from those regulated sources (e.g., sanitary
landfills) described in the complaint.
In some instances, a third universe of sources category, a single
permitted entity alone, may support an adverse disparate impact claim.
While such a case has not yet been presented to EPA, it might, for
example, involve a permitted activity that is unique (i.e., ``one of a
kind'') under a recipient's program, such as a permit to store or
dispose of a unique type of stressor (e.g., radioactive materials,
pathogens). In these cases, only pollutants or other stressors from the
specific individual entity that was the focus of the complaint would be
considered in the adverse disparate impact analysis. Background sources
would generally not be considered in the analysis.
Where the activities covered by a recipient's authority constitute
a portion of the impact, OCR would expect to attempt to conduct an
assessment to identify the relative contribution of various source
categories. Some cases may require updating the scope of the assessment
as a result of an initial review of available materials or
investigation. For example, available data estimates or initial
assessments of the status of environmental conditions in a study area
may change.
[[Page 39679]]
Having identified the relevant sources and stressors, OCR would
then expect to define the overall scope of the adverse disparate impact
investigation, and develop time and resource estimates. The
investigation may focus on one or more exposure pathways that stressors
could travel from the permitted entity and other sources to potential
receptors. This process will also involve forming a project team;
assessing data availability, relevance, and reliability; and reviewing
the availability of assessment tools, such as appropriate mathematical
models and exposure scenarios. The team would develop an initial
project scope plan, identify information products, and create a
schedule with milestones for the analysis.
3. Impact Assessment
Determine whether the activities of the permitted entity at issue,
either alone or in combination with other relevant sources, may result
in an adverse impact.
In this step, the investigatory team develops an assessment to
determine whether the alleged discriminatory act may cause or is
associated with one or more impacts. This involves confirming that an
entity is a source of stressor(s) that could cause or be associated
with an exacerbation of the alleged impacts, and that there is a
plausible mechanism and exposure route (e.g., release of a stressor
with known chronic toxicity effects that may be transported via air to
receptors for inhalation). EPA expects to attempt to quantify potential
impacts, using data on sources, stressors, and associated potential
impacts. While EPA will rely on the best available relevant data in its
investigations, the utility of available data to make a finding will
likely vary with the environmental medium, geographic area, and the
recipient's program, among other things. OCR expects to use all readily
available relevant data in conducting its assessments.
However, data may not be readily available for many types of
impacts, or where available, may not be relevant to the appropriate
geographic area. In some situations, the data may be insufficient to
perform an analysis. OCR expects to use available data in a
hierarchical fashion, depending on their completeness and reliability,
placing greatest weight on the most reliable. The following is an
example of this hierarchy of data types, in approximate descending
order of preference, that OCR expects to use for assessments:
Ambient monitoring data;
Modeled exposure concentrations or surrogates in various
environmental media;
Known releases of pollutants or stressors into the
environment;
The manufacture, use, or storage of quantities of
pollutants, and their potential for release; and
The existence of sources or activities associated with
potential exposures to stressors (e.g., facilities that are generally
likely to use significant quantities of toxic chemicals which could be
routinely or catastrophically released; types of agricultural
production usually associated with chemical application).
Depending on the allegations in a particular case, and the
availability of data, any of these above sources of information may be
considered relevant.
The reliability, degree of scientific acceptance, and uncertainties
of impact assessment methods varies greatly. In each case, the
investigation report is expected to include a discussion of
uncertainties in the impact assessment. OCR expects to weigh these
uncertainties in the data and methods as part of its decision process
(in Step 5). As part of its identification and development of methods
for conducting impact assessments, OCR submitted several example
assessment tools for review by the EPA Science Advisory Board.\125\ OCR
expects to select from the following set of approaches. The facts and
circumstances of each complaint will determine whether a likely causal
link exists.
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\125\ The findings were presented in the December 1998 report,
An SAB Report: Review of Disproportionate Impact Methodologies; A
Review by the Integrated Human Exposure Committee (IHEC) of the
Science Advisory Board (SAB). The report and related materials are
available on the OCR Web site at http://www.epa.gov/civilrights/investig.htm.
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Direct link to impacts. The strongest evidence demonstrating a
causal link between the alleged discriminatory act and the alleged
adverse impact would directly link an adverse health or environmental
outcome with the source of a stressor. Although such evidence is
preferred in reaching a decision, it is rarely available. Not only must
one have a set of geographically-specific health or environmental
outcome data (e.g., age-adjusted cancer rates), but also evidence that
the health or environmental outcomes stem from environmental stressors
from the permitted entity. Many types of adverse health impacts may
require years of exposure to a large number of people in order to be
observed in health outcome data.
Risk. Another approach involves prediction of potentially
significant exposures and risks resulting from stressors created by the
permitted activities or other sources. These predictions may be based
on ambient levels of stressors derived from monitoring or modeling,
with information about the likelihood of toxic effects occurring. In
estimating cancer risks, such unit risk factors estimate the
probability of contracting a cancer case for a unit of exposure.\126\
For example, an area's predicted cancer risk could be based on the
estimated ambient concentration times the unit risk factor. These could
be assessed for single chemicals, or be summed for multiple chemicals,
based on releases from a single source or a combination of sources and
background levels.\127\
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\126\ A unit of exposure could include an exposure scenario of a
person breathing, on average over a lifetime, a concentration of 1
microgram of pollutant per cubic meter of air.
\127\ For non-carcinogens, it is not possible to estimate a
probability of occurrence (i.e., risk); however; a ratio of the
estimated exposures to benchmark levels can be calculated (i.e., a
hazard quotient). Hazard quotients for individual chemicals may be
combined to create a cumulative hazard index, which may be used to
evaluate the cumulative impact potential. If an exposure occurs at a
level below the benchmark level (which would result in a hazard
index value less than 1), this usually indicates that no adverse
effects would occur. A reference dose is a frequently used example
of such a benchmark. However, if an exposure occurs above a
benchmark level, it may not be possible to conclude from those data
alone that an effect would necessarily occur.
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Toxicity-weighted emissions. This approach sums the releases of
multiple stressors (usually chemicals) that may be associated with
significant risks, weighted by a relative measure of each's toxicity or
potential to cause impacts. This approach does not present an explicit
prediction of ambient concentrations or levels of the stressors. For
example, OCR could obtain or estimate the release quantity of each
chemical stressor from a source, multiply it by a chronic toxicity
potency factor score, then sum the products across chemicals to yield a
total toxicity-weighted stressor score per source. Sources with higher
levels of toxicity-weighted stressors would be expected to be
associated with a higher likelihood of causing potential adverse
impacts.
Concentration levels. This approach would include modeled or
monitored ambient concentrations of stressors that may indicate
potential levels of concern. For example, if the result of an analysis
is a series of chemical concentration estimates, these would be
compared to benchmarks of concern for each chemical separately. These
benchmarks may be based on several things, including toxicity potency
factors
[[Page 39680]]
similar to those outlined in the Risk discussion above, or rely on less
quantitative data.
4. Adverse Impact Decision
Determine whether an estimated risk or measure of impact is
significantly adverse. If the impact is not significantly adverse, the
allegation is not expected to form the basis of a finding of non-
compliance with EPA's Title VI regulations and will likely be closed.
OCR intends to use all relevant information to determine whether
the predicted impact is significantly adverse under Title VI.
Generally, OCR would first evaluate the risk or measure of impact
compared to benchmarks for significance provided under any relevant
environmental statute, EPA regulation, or EPA policy. Where the risks
or other measure of potential impact meet or exceed a significance
level, they generally would be recognized as adverse under Title VI.
OCR will work with other appropriate EPA offices to evaluate the
results. If exposures exceed established environmental or human health
benchmarks, the appropriate EPA program office or the Office of
Enforcement and Compliance Assurance will be notified so they may take
appropriate action under environmental laws and regulations. OCR will
coordinate its investigation into potential Title VI violations with
any actions taken by other EPA offices. Where no adverse impacts are
present for any of the sources or combination of sources described
above, the allegation will not form the basis of a finding of non-
compliance with EPA's Title VI regulations and will be closed.
This evaluation would need to take into account considerations such
as policies developed for single stressors or sources without explicit
consideration of cumulative contributions and uncertainties in
estimates. In some cases, the relevant environmental laws may not
identify regulatory levels for the risks of the alleged human health
impact or may not address them for Title VI purposes. For example, the
alleged impact may result from cumulative or other risk of effects from
multiple environmental exposure media. In such cases, OCR could
consider whether any scientific or technical information indicates that
those impacts should be recognized as adverse under Title VI. In making
that determination, OCR would work closely with other EPA offices with
relevant regulatory programs. Again, where no such risks or impacts are
present for any of the sources or combination of sources described
above, the allegation will not form the basis for a finding of non-
compliance with EPA's Title VI regulations and will be closed.
a. Example of Adverse Impact Benchmarks: EPA uses a range of risk
values for implementing various environmental programs, depending upon
the legal, technical, and policy context of the decision at issue.
Based on these values, OCR would expect that cumulative risks of less
than 1 in 1 million (10-6) of developing cancer would be
very unlikely to support a finding of adverse impact under Title VI.
OCR may make a finding in instances where cumulative risk levels fall
in the range of 1 in 1 million (10-6) to 1 in 10,000
(10-4). OCR would be more likely to issue an adversity
finding for Title VI purposes where the cumulative cancer risk in the
affected area was above 1 in 10,000 (10-4). A finding of
adverse impact at this stage of the investigation does not represent a
finding of noncompliance under Title VI, but rather represents a
criterion for proceeding further in the analysis.
For cumulative non-cancer health effects, which are often measured
as a hazard index, the range of values previously used is less well
documented, and has been less often applied in a cumulative exposure
context. Based on the available precedents, OCR generally would be very
unlikely to use values of less than 1 to support a finding of adverse
impact under Title VI. Values above 1 cannot be represented as a
probability of developing disease or other effect.\128\ Generally, the
farther the hazard index is above 1, the more likely OCR will be to
issue an adversity finding under Title VI.
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\128\ For further discussions of this issue, see the preceding
footnote.
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Compliance with environmental laws does not constitute per se
compliance with Title VI. Frequently, discrimination results from
policies and practices that are neutral on their face, but have the
effect of discriminating. EPA recognizes that most permits control
pollution rather than prevent it altogether. Also, there may be
instances in which environmental laws do not regulate certain
concentrations of sources, or take into account impacts on some
subpopulations which may be disproportionately present in an affected
population. For example, there may be evidence of adverse impacts on
some subpopulations (e.g., asthmatics) and that subpopulation may be
disproportionately composed of persons of a particular of a race,
color, or national origin. Title VI is concerned with how the effects
of the programs and activities of a recipient are distributed based on
race, color, or national origin. A recipient's Title VI obligation
exists in addition to the Federal or state environmental laws governing
its environmental permitting program.
b. Use of National Ambient Air Quality Standards: EPA and the
states have promulgated a wide series of regulations to implement
public health protections. Some of these regulations are based on
assessment of public health risks associated with certain levels of
pollution in the ambient environment. The National Ambient Air Quality
Standards (NAAQS) established under the Clean Air Act are an example of
this kind of health-based ambient standard setting. By establishing an
ambient, public health threshold, the primary NAAQS contemplate
multiple source contributions and establish a protective limit on
cumulative pollution levels that should ordinarily prevent an adverse
air quality impact on public health. Air quality that adheres to such
standards (e.g., air quality in an attainment area) is presumptively
protective of public health in the general population.
If an investigation includes an allegation raising air quality
concerns regarding a pollutant regulated pursuant to a primary NAAQS,
and where the area in question is attaining that standard, the air
quality in the surrounding community will generally be considered
presumptively protective and emissions of that pollutant should not be
viewed as ``adverse'' within the meaning of Title VI. However, if the
investigation produces evidence that significant adverse impacts may
occur, this presumption of no adverse impact may be overcome.
For example, one situation where the presumption could be overcome
is the following: An area may be in attainment with the lead NAAQS, but
in some cases residents could still suffer adverse effects from lead.
The lead standard was designed to take into account both exposures from
inhalation of airborne lead (subject to the standard) and exposures
resulting from non-air pathways such as ingestion of lead contained in
paint, soil, or water (not subject to the standard).\129\ Contributions
to total exposure from non-air sources, however, can vary widely, and
unusually high levels of lead in paint, soil, or water might cause
residents of some areas to experience adverse effects even if the
standard is
[[Page 39681]]
met. In such cases, the presumption of no adverse impacts from lead
could be overcome.\130\
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\129\ See 43 FR 46248, 46252-54 (Oct. 5, 1978); Lead Industr.
Ass'n v. EPA, 647 F.2d 1130, 1141-45 (D.C. Cir. 1980).
\130\ Note also that even if an area is in compliance with the
NAAQS for a criteria pollutant, there still may be Title VI concerns
related to other criteria pollutants, to toxic hot spots associated
with hazardous air pollutants under section 112 of the Clean Air
Act, or to pollutants from other media.
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c. Assessing Decreases in Adverse Impacts in a Permit Action: In
some circumstances, such as where a decrease in certain emissions is
accompanied by an increase in other emissions and OCR determines that
the permit action identified in the complaint clearly leads to a
significant decrease in adverse disparate impacts, OCR's voluntary
compliance measures will take that decrease into account, because it is
unlikely the permit is solely responsible for the adverse disparate
impacts.\131\ In general, OCR expects any alleged decrease in impact to
be clearly evident and will likely involve the same types of pollutants
and pathways that are alleged in the complaint. Generally, when
determining whether the alleged discriminatory act increases,
decreases, or does not affect the level of adverse impacts, OCR expects
to evaluate the allowable release levels in the permit.
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\131\ See section VII.A.3. (discussion of voluntary compliance).
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5. Characterize Populations and Conduct Comparisons
Identify and determine the characteristics of the affected
population, and conduct an analysis to determine whether a disparity
exists between the affected population and an appropriate comparison
population in terms of race, color, or national origin, and adverse
impact. If there is no disparity, the allegation will not form the
basis of a finding of non-compliance with EPA's Title VI regulations
and will be closed.
a. Identify and Characterize Affected Population: The first element
of this step is to identify the affected population. The affected
population is that which suffers the adverse impacts of the stressors
from assessed sources. Depending on the allegations and facts in the
case, various affected populations may be identified.\132\ The affected
population may be categorized, for example, by likely risk or measure
of impact above a threshold of adversity, or by the sources or pathways
of the adverse impacts.
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\132\ This could occur when a complaint contains more than one
allegation, and/or different populations may be disproportionately
affected by different pollutants or exposure pathways.
---------------------------------------------------------------------------
The impacts from permitted entities and other sources are not
always distributed in a predictable and uniform manner. Therefore, the
predicted degree of potential impacts could be associated with a
possible receptor population in several ways. Based on Step 3's
assessment, which predicted the magnitude (and in some cases, the
geographic distribution) of stressor levels associated with adverse
impacts, OCR expects to use mathematical models, when possible, to
estimate the location and size of the affected populations. An area of
adverse impacts may be irregularly shaped due to environmental factors
or other conditions such as wind direction, stream direction, or
topography. Likewise, depending upon the location of a plume or pathway
of impact, the affected population may or may not include those people
with residences in closest proximity to a source.
However, simpler approaches based primarily on proximity may also
be used where more detailed (e.g., modeled) estimates cannot be
developed. The proximity analysis would reflect the environmental
medium and impact of concern in the case. For example, for air
releases, an inverse relationship with distance from a source could be
used within a circle (i.e., the further away from a source, the less
the potential degree of impact to a population). For surface water
releases, the impact allocation might involve identifying downstream
receptor populations. All of these approaches may incorporate the
contribution of other sources of chemical stressors to assess potential
cumulative impacts.
The analysis would also attempt to determine the race, color, or
national origin of the affected population(s). OCR intends to use
available data and demographic analysis methods, such as the currently
available U.S. Census information \133\ in geographic information
systems (GIS) to describe the affected population. In conducting a
typical analysis to determine an affected population, OCR would likely
generate data estimating the race, color or national origin and density
of populations within a certain proximity from a facility or within the
geographic distribution pattern predicted by scientific models. OCR
would expect to use the smallest geographic resolution feasible for the
demographic data, such as census blocks, when conducting disparity
assessments. OCR would expect to characterize the affected population
for the permitted entity at issue, as well as those in other areas of
estimated cumulative adverse impacts.
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\133\ The most current geographically detailed Census
information is from the 1990 U.S. Census. Information from the 2000
U.S. Census will not be available until 2001.
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b. Comparison to Assess Disparity: The second element of this step
involves a disparity analysis that compares the affected population to
an appropriate comparison population to determine whether disparity
exists that may violate EPA's Title VI regulations. OCR would consider
the allegations and factors of each case, and would generally expect to
draw relevant comparison populations from those who live within a
reference area such as the recipient's jurisdiction (e.g., an air
district, a state, an area of responsibility for a branch office),
within a political jurisdiction (e.g., town, county, state), or an area
defined by environmental criteria, such as an airshed or watershed. For
example, where a complaint alleges that Asian Americans throughout a
state bear adverse disparate impacts from permitted sources of water
pollution, an appropriate reference area would likely be the state.
Comparison populations would usually be larger than the affected
population, and may include the general population for the reference
area (e.g., a county or state population which includes the affected
population) or the non-affected population for the reference area
(e.g., those in the reference area who are not part of the affected
population).
A disparity may be assessed using comparisons both of the different
prevalence of race, color, or national origin of the two populations,
and of the level of risk of adverse impacts experienced by each
population. Since there is no one formula or analysis to be applied,
OCR intends to use appropriate comparisons to assess disparate impact
depending on the facts and circumstances of the complaint.
As part of OCR's assessment, it is expected that at least one and
usually more of the following comparisons of demographic
characteristics will be conducted:
The demographic characteristics of an affected population
to demographic characteristics of a non-affected population or general
population; \134\
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\134\ See, e.g., Draft Revised Demographic Information, Title VI
Administrative Complaint re: Louisiana Department of Environmental
Quality/Permit for Proposed Shintech Facility, April, 1998 (Shintech
Demographic Information, April 1998), Facility Distribution Charts
D1 through D40 found at http://www.epa.gov/civilrights/shinfileapr98.htm, files t-d01-10.pdf, t-d11-20.pdf, t-d21-30.pdf,
t-d31-40.pdf.
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The demographic characteristics of most likely affected
(e.g., highest 5% of
[[Page 39682]]
risk or measure of adverse impact) to least likely affected (e.g.,
lowest 5%) \135\
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\135\ These values approximate the outlying portions (sometimes
called the ``tails'') of a distribution of risk that are beyond two
standard deviations of the mean value.
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The probability of different demographic groups (e.g.,
African Americans, Hispanics, Whites) in a surrounding jurisdiction
being in an affected population or a highly affected portion of it;
\136\
---------------------------------------------------------------------------
\136\ See, e.g., Shintech Demographic Information, April 1998,
the last column in Tables A1 through B7 found at http://www.epa.gov/civilrights/shinfileapr98.htm, table-a1.pdf through table-b.7.pdf.
---------------------------------------------------------------------------
OCR also expects to compare the level of risk or measure of potential
adverse impacts:
The average risk or measure of adverse impact by
demographic group within the general population or within an affected
population; \137\ or
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\137\ See, e.g., Shintech Demographic Information, April 1998,
last column in Tables C1 through C5 found at http://www.epa.gov/civilrights/shinfileapr98.htm, table-c1.pdf through table-c5.pdf.
---------------------------------------------------------------------------
The range of risk or measure of adverse impact by
demographic group within the general population or within an affected
population.
6. Adverse Disparate Impact Decision
Determine whether the disparity is significant. If it is not, the
complaint will likely be closed.
The final step of the analysis is to determine whether the
disparities demonstrated by comparisons in Step 5 are significant under
Title VI. OCR generally expects to review both the disparity in
demographic characteristics and in levels of risk or other measure of
potential impacts, in the context of the allegations identified in the
complaint and investigation scope.
In determining whether a disparity is significant, OCR generally
expects to review several possible measures (described in the previous
step), and take into account to what degree they are consistent.
Moreover, the significance of a given level of disparity may vary
depending upon the facts and circumstances of the complaint and
comparison population at issue. Nevertheless, OCR intends to apply a
few basic rules in assessing the significance of disparity.
For instance, measures of the demographic disparity between an
affected population and a comparison population would normally be
statistically evaluated to determine whether the differences achieved
statistical significance to at least 2 to 3 standard deviations. The
purpose of this initial review is to minimize the chance of a false
measurement of difference where none actually exists (e.g., because of
an inherent variability of the data). OCR expects to work with
statisticians to evaluate initial disparity calculations done by
investigators.
Initial assessments of disparity would thus be informed by expert
opinion, and take into account other considerations such as
uncertainties. For example, some time may have passed since the most
recent Census, and residential population shifts may have occurred,
resulting in uncertainties in demographic characterization.
Uncertainties in adverse impact assessments might include the accuracy
of predicted risk levels, and the applicability of these levels to
potentially exposed populations (e.g., subsistence fish consumption
patterns).
OCR would also expect to evaluate the demographic disparity
measures and their results in the context of several related factors
such as:
Affected population size;
Overall demographic composition of the general comparison
population (especially those with very low or very high proportions of
particular subgroups); and
The overall proportion of a jurisdiction's total
population within an affected population.
In evaluating disparity in adverse impacts, OCR would expect to
also consider such factors as:
The level of adverse impact (e.g., a little or a lot above
a threshold of significance);
The severity of the impact; and
Its frequency of occurrence.
OCR expects to weigh carefully the potential uncertainties along with
these factors in making the determination of whether an adverse
disparate impact exists, and whether a finding of noncompliance with
EPA's regulations is warranted. EPA generally would expect the risk or
measure of potential adverse impact for affected and comparison
populations to be similar under properly implemented programs, unless
justification can be provided.
A finding of an adverse disparate impact is most likely to occur
where significant disparity is clearly evident in multiple measures of
both risk or measure of adverse impact, and demographic
characteristics, although in some instances results may not be clear.
For example, where credible measures of both the demographic disparity
and the disparity in rates of impact are at least a factor of 2 times
higher in the affected population, OCR would generally expect to find
disparate impact under Title VI. Similarly, in instances where the
disparity of both demographic characteristics and impacts are
relatively slight, a finding of disparate impact is somewhat less
likely (e.g., in cases where both the disparity of impact and
demographics are not statistically significant). Finally, where a large
disparity exists in terms of impact and a relatively slight disparity
exists with regard to demographics (or vice versa), EPA will ordinarily
attempt to balance these factors, taking into account the particular
circumstances of the case. For instance where a large disparity (e.g.,
a factor of 10 times higher) exists with regard to a significant
adverse impact, OCR might find disparate impact even though the
demographic disparity is relatively slight (e.g., under 20%).
However, for both demographic disparity and disparity of impact,
there is no fixed formula or analysis to be applied. The significance
of a level of disparity may vary depending upon the facts and
circumstances of the complaint, the analysis, and the comparison
population. Given the wide variability in many of the underlying
factors such as the proportion of racial subgroups in the general
population,\138\ it is impossible to determine a single factor that
could be applicable in all cases.
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\138\ For example, state populations may be used as a basis for
comparison with the affected population. Recent data show that the
proportion of total ``minority'' populations (defined as other than
white races together with white Hispanics) range from about 4% to
50% of various state populations. In light of that variance, the
adoption of a single level of disparity, such as a factor of 2, as
the only indicator of significance, would lead to highly
inconsistent results. If a complaint alleged discrimination against
minorities, as defined above, in some states, a significant
disparity would be presumed to exist if less than 10% of an affected
population were minority, whereas in other states, the percentage
would have to reach 100%.
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VII. Determining Whether a Finding of Noncompliance is Warranted
In order to find a recipient in violation of the discriminatory
effects standard in EPA's Title VI implementing regulations, OCR would
determine whether the recipient's programs or activities have resulted
in an unjustified adverse disparate impact.\139\ In other words, OCR
would assess whether the impact is both adverse and borne
disproportionately by a group of persons based on race, color, or
national origin,\140\ and, if so, whether that impact is
justified.\141\ While assessing background sources of stressors
contributing to alleged
[[Page 39683]]
discriminatory effects may be required to understand whether an adverse
impact is created or exacerbated, in determining whether a recipient is
in violation of Title VI or EPA's implementing regulations and the
extent of any voluntary compliance measures, the Agency expects to
account for the adverse disparate impacts resulting from sources of
stressors, the stressors themselves, and/or impacts cognizable under
the recipient's authority.\142\
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\139\ See 40 CFR 7.30, 7.35 (stating prohibitions against
discrimination).
\140\ See section VI (describing analysis for determining
whether adverse disparate impact exists).
\141\ See section VII.A. (discussing justification).
\142\ See section VI.B.2. (discussing defining the scope of an
investigation).
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OCR also expects to base a preliminary finding of noncompliance on
the results of the adverse disparate impact analysis, and any
information submitted by the complainant or recipient, and any defenses
presented by the recipient during the investigation. Within 50 calendar
days of OCR's preliminary findings, the recipient may:
(1) Submit a written response demonstrating that the preliminary
findings are incorrect;
(2) Agree to OCR's recommendations for voluntary compliance; or
(3) Argue that compliance may be achieved through steps other than
those recommended by OCR.\143\
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\143\ 40 CFR 7.115(c), (d).
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If the recipient does not take one of these actions, EPA's Title VI
regulations require OCR to send a formal written determination of
noncompliance to the recipient, the Award Official, and the Assistant
Attorney General.\144\ If the recipient does not voluntarily comply
within 10 calendar days of receipt of the formal determination of
noncompliance, OCR must start proceedings to deny, annul, suspend, or
terminate EPA assistance.\145\ Recognizing that elimination of adverse
disparate impacts within 10 days may not be achievable; therefore, OCR
may postpone proceedings to deny, annul, suspend, or terminate EPA
assistance, if the recipient has demonstrated a good faith effort
(e.g., signed a voluntary compliance agreement) to come into
compliance.
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\144\ 40 CFR 7.115(d).
\145\ 40 CFR 7.115(e), 7.130(b).
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A. Justification
The recipient will have the opportunity to ``justify'' the decision
to issue the permit notwithstanding the adverse disparate impact, based
on a substantial, legitimate justification.\146\ The recipient may
offer its justification following its receipt of the notice of
complaint,\147\ or after a preliminary finding of non-compliance with
Title VI or EPA's implementing regulations.\148\
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\146\ In some circumstances, recipients may justify adverse
disparate impacts under Title VI as described in the text. This
guidance, however, does not concern justifications for any
violations of environmental law.
\147\ 40 CFR 7.120(d)(1)(ii).
\148\ 40 CFR 7.115(d)(2).
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1. Types of Justification
Determining what constitutes an acceptable justification will
necessarily be based on the facts of the case. Generally, the recipient
would attempt to show that the challenged activity is reasonably
necessary to meet a goal that is legitimate, important, and integral to
the recipient's institutional mission.\149\ For example, because
recipients are environmental permitting agencies, OCR expects to
consider provision of public health or environmental benefits (e.g.,
waste water treatment plant) to the affected population from the
permitting action to be an acceptable justification because such
benefits are generally legitimate, important, and integral to the
recipient's mission.
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\149\ See Donnelly v. Rhode Island Bd. of Governors for Higher
Educ., 929 F. Supp. 583, 593 (D.R.I. 1996), aff'd on other grounds,
110 F.3d 2 (1st Cir. 1997); Elston v. Talladega County Bd. of Educ.,
997 F.2d 1394, 1412-13 (11th Cir. 1993); see also NAACP v. Medical
Center, Inc., 657 F.2d 1322, 1328 (3d Cir. 1981).
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In addition, OCR would also likely consider broader interests, such
as economic development, from the permitting action to be an acceptable
justification, if the benefits are delivered directly to the affected
population and if the broader interest is legitimate, important, and
integral to the recipient's mission. OCR will generally consider not
only the recipient's perspective, but the views of the affected
community in its assessment of whether the permitted facility, in fact,
will provide direct, economic benefits to the community. However, a
justification may be rebutted if EPA determines that a less
discriminatory alternative exists, as discussed below.
2. Less Discriminatory Alternatives
Courts have defined the term ``less discriminatory alternative'' to
be an approach that causes less disparate impact than the challenged
practice, but is practicable and comparably effective in meeting the
needs addressed by the challenged practice.\150\ OCR will likely
consider cost and technical feasibility in its assessment of the
practicability of potential alternatives. Practicable mitigation
measures \151\ associated with the permitting action could be
considered as less discriminatory alternatives, including, in some
cases, modifying permit conditions to lessen or eliminate the
demonstrated adverse disparate impacts.
---------------------------------------------------------------------------
\150\ See Georgia State Conference of Branches of NAACP v.
Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Elston, 997 F.2d at
1413.
\151\ For further discussion of potential measures that may
reduce or eliminate adverse disparate impacts, see section IV.B.
---------------------------------------------------------------------------
3. Voluntary Compliance
OCR expects to explore a range of possible options to achieve
voluntary compliance. Narrowly focused approaches to eliminate or
reduce unjustified adverse disparate impacts might deal solely with the
permitted activities that triggered a complaint. More broadly focused
remedial efforts might deal with the combined impacts of several
contributing sources, taking into account their approximate relative
contributions. The Agency expects to account for the adverse disparate
impacts resulting from factors within the recipient's authority.\152\
In addition, the approaches explored may be assessed with respect to
implementation considerations such as cost and technical feasibility.
---------------------------------------------------------------------------
\152\ See section VI.B.2.a. (discussing the scope of recipient's
authority).
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As previously mentioned, it is expected that denial or revocation
of a permit is not necessarily an appropriate solution, because it is
unlikely that a particular permit is solely responsible for the adverse
disparate impacts. Also in some circumstances, such as where OCR's
investigation shows that the permit action identified in the complaint
clearly leads to a significant decrease in adverse disparate impacts,
OCR will likely recommended voluntary compliance measures that take
this decrease into account. OCR will likely recommend that the
recipient focus on other permitted entities and other sources within
their authority to eliminate or reduce, to the extent required by Title
VI, the adverse disparate impacts of their programs or activities.
B. Hearing/Appeal Process
If compliance with EPA's Title VI regulations cannot be achieved by
informal resolution or voluntary compliance, OCR must make a finding of
noncompliance.\153\ Within 30 days of receipt of the formal finding of
noncompliance, the recipient must file a written answer and may request
a hearing before an EPA ALJ.\154\ If the recipient does not request a
hearing, it shall be deemed to have waived its right to a hearing, and
OCR's finding will be deemed to be the ALJ's
[[Page 39684]]
determination.\155\ Following receipt of the ALJ's determination, the
recipient may, within 30 days, file its exceptions to that
determination with the Administrator.\156\ The Administrator may,
within 45 days after the ALJ's determination, serve notice that she
will review the determination.\157\ If the recipient does not file
exceptions or if the Administrator does not provide notice of review,
the ALJ's determination constitutes the Administrator's final
decision.\158\ If the Administrator reviews the determination, all
parties will be given reasonable opportunity to file written
statements.\159\ Subsequently, if the Administrator's decides to deny
an application, or annul, suspend, or terminate EPA assistance, that
decision becomes effective 30 days after the Administrator submits a
written report to Congress.\160\
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\153\ 40 CFR 7.115(e); 7.130(b)(1).
\154\ 40 CFR 7.130(b)(2)(i), (ii).
\155\ 40 CFR 7.130(b)(2)(ii).
\156\ 40 CFR 7.130(b)(3)(i).
\157\ Id.
\158\ Id.
\159\ 40 CFR 7.130(b)(3)(ii).
\160\ 40 CFR 7.130(b)(3)(iii).
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Appendix A: Glossary of Terms
The definitions provided in this glossary only apply to the
Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs and the Draft Revised Guidance for
Investigating Title VI Administrative Complaints Challenging
Permits, unless a direct citation to the Code of Federal Regulations
(CFR) is provided. Please note that italicized words are ones for
which definitions are available in this glossary.
------------------------------------------------------------------------
Term Definition
------------------------------------------------------------------------
Accuracy.......................... The measure of the correctness of
data, as given by the difference
between the measured value and the
true or standard value.
Adverse Impact.................... A negative impact that is determined
by EPA to be significant, based on
comparisons with benchmarks of
significance. These benchmarks may
be based on law, policy, or
science.
Affected Population............... A population that is determined to
bear an adverse impact from the
source(s) at issue.
Ambient Standards................. A level of pollutants prescribed by
regulations that are not to be
exceeded during a given time in a
defined area. (e.g., National
Ambient Air Quality Standards.)
Ambient........................... Any unconfined portion of a water
body, land area, or the atmosphere,
such as the open air or the
environment surrounding a source.
Attainment Area................... An area considered to have air
quality as good as or better than
the national ambient air quality
standards as defined in the Clean
Air Act. An area may be an
attainment area for one pollutant
and a non-attainment area for
others. (See also non-attainment
area.)
Benchmark......................... A value used as a standard for
comparison. Several types used in
Title VI investigations include
benchmarks of exposure level, risk,
and significance. (See also RfC,
RfD, threshold.)
Brownfields....................... Abandoned, idled, or under-used
industrial and commercial
facilities/sites where expansion or
redevelopment is complicated by
real or perceived environmental
contamination. They can be in
urban, suburban, or rural areas.
Carcinogen........................ A chemical or other stressor capable
of inducing a cancer response.
Chronic Toxicity.................. The capacity of a substance to cause
long-term harmful health effects.
Comparison Population............. A population selected for comparison
with an affected population in
determining whether the affected
population is significantly
different with respect to
demographic characteristics or
degree of adverse impact.
Criteria Pollutants............... The 1970 Clean Air Act (CAA)
required EPA to set National
Ambient Air Quality Standards for
certain pollutants known to be
hazardous to human health. EPA has
identified and set standards to
protect human health and welfare
for six pollutants: ozone, carbon
monoxide, particulate matter,
sulfur dioxide, lead, and nitrogen
oxide. The term, ``criteria
pollutants'' derives from the
requirement that EPA must describe
the characteristics and potential
health and welfare effects of these
pollutants in ``criteria.'' See CAA
section 108.
Cumulative Exposure............... Total exposure to multiple
environmental stressors (e.g.,
chemicals), including exposures
originating from multiple sources,
and traveling via multiple pathways
over a period of time.
Cumulative Impact................. The harmful health or other effects
resulting from cumulative exposure.
Disparity (Disparate Impact)...... A measurement of a degree of
difference between population
groups for the purpose of making a
finding under Title VI. Disparities
may be measured in terms of the
respective composition
(demographics) of the groups, and
in terms of the respective
potential level of exposure, risk
or other measure of adverse impact.
Due Weight........................ The importance or reliance EPA gives
to evidence or agreements to reduce
impacts provided by recipients or
complainants, depending on a review
of relevance, scientific validity,
completeness, consistency, and
uncertainties. Where evidence or
agreements prove to be technically
satisfactory, OCR may rely upon
that information rather than
attempting to duplicate the
analysis.
Environmental Council of States The Environmental Council of States
(ECOS). (ECOS) is a national non-partisan,
nonprofit association of state and
territorial environmental
commissioners.
Exposure.......................... Contact with, or being subject to
the action or influence of,
environmental stressors, usually
through ingestion, inhalation, or
dermal contact.
Exposure Pathway.................. The physical course a chemical or
other stressor takes from its
source to the exposed receptor (See
also Exposure Route.)
Exposure Route.................... The avenue by which a chemical or
other stressor comes into contact
with an organism (e.g., inhalation,
ingestion, dermal contact).
Exposure Scenario................. A set of facts, assumptions, and
inferences about how exposure takes
place that aids in evaluating,
estimating, or quantifying
exposures (e.g., exposure pathway,
environmental conditions, time
period of exposure, receptor
lifetime, average body weight).
Financial Assistance.............. Any grant or cooperative agreement,
loan, contract (other than a
procurement contract or a contract
of insurance or guaranty), or any
other arrangement by which EPA
provides or otherwise makes
available assistance in the form
of: (1) Funds; (2) Services of
personnel; or (3) Real or personal
property or any interest in or use
of such property, including: (i)
Transfers or leases of such
property for less than fair market
value or for reduced consideration;
and (ii) Proceeds from a subsequent
transfer or lease of such property
if EPA's share of its fair market
value is not returned to EPA. 40
CFR 7.25.
[[Page 39685]]
General population................ A comparison population that
consists of the total set of
persons in a jurisdiction or area
of potential impact, including an
affected population.
GIS (Geographic Information An organized computer system
System). designed to efficiently capture,
analyze, and display information in
a geographically referenced manner,
such as a map. Commonly, GIS is
used to produce maps which combine
various data and analysis results
together, allowing for convenient
visual analysis.
Hazard............................ The degree of potential for a
stressor to cause illness or injury
in a receptor, or the inherent
toxicity of a compound.
Hazard Index...................... A summation of hazard quotients for
multiple chemicals; a measure of
cumulative risk for substances
which exhibit a threshold for
toxicity.
Hazard Quotient................... The ratio of a single substance
exposure level to a reference dose
or benchmark for that substance. An
exposure at the same concentration
as the reference dose would have a
hazard quotient of 1.
Hazardous Air Pollutant (HAP)..... Air toxics which have been
specifically listed for regulation
under Clean Air Act section 112.
Health Outcome.................... A measure of disease rate or similar
impact, such as age-adjusted cancer
death rate.
Impact............................ In the health and environmental
context, a negative or harmful
effect on a receptor resulting from
exposure to a stressor (e.g., a
case of disease). The likelihood of
occurrence and severity of the
impact may depend on the magnitude
and frequency of exposure, and
other factors affecting toxicity
and receptor sensitivity.
Informal Resolution............... Any settlement of complaint
allegations prior to the issuance
of a formal finding of
noncompliance by EPA.
Measure of Impact................. A measure used in evaluating the
significance of an impact, which
may involve the general likelihood,
frequency, rate or number of
instances of the occurrence of an
impact. (See risk, which is
similar, but expressed as a numeric
probability of occurrence.)
Media or Medium................... Specific environmental compartments
such as air, water, or soil, that
are the subject of regulatory
concern and activities.
Mitigation........................ Measures taken to reduce or
eliminate the intensity, severity
or frequency of an adverse
disparate impact.
Mobile Source..................... Any non-stationary source of air
pollution such as cars, trucks,
motorcycles, buses, airplanes,
ships or locomotives.
Model/Modeling/Modeled............ A set of procedures or equations
(usually computerized) for
estimating or predicting a value,
e.g., the ambient environmental
concentration of a stressor. Also,
the act of using a model.
National Ambient Air Quality Standards established by EPA
Standards (NAAQS). pursuant to Clean Air Act section
109 that apply for outdoor air
throughout the country. (See
criteria pollutants.)
New Permit........................ For the purposes of this guidance,
the term ``new permits'' refers to
the initial issuance of any permit,
including permits for (1) the
construction of a new facility, (2)
the continued operation of an
existing facility that previously
operated without that type of
permit, and (3) an existing
facility that adds a new operation
that would require a new type of
permit (e.g., newly issued water
discharge permit), in addition to
the facility's existing permits
(e.g., existing air emission
permit). (See permit).
Non-affected population........... The remainder of a general
population which is not found to be
part of an affected population
(e.g., a county population minus
those in an affected population).
Non-Attainment Area............... Area that does not meet one or more
of the National Ambient Air Quality
Standards for the criteria
pollutants designated in the Clean
Air Act.
Non-Point Source.................. A diffuse water pollution source
(i.e., without a single point of
discharge to the environment).
Common non-point sources include
agricultural, forestry, mining, or
construction areas, areas used for
land disposal, and areas where
collective pollution due to
everyday use can be washed off by
precipitation, such as city
streets. (See also point source).
Noncompliance..................... A finding by EPA that a recipient's
program or activities do not meet
the requirements of EPA's Title VI
implementing regulations.
Offsets........................... A concept whereby emissions from
proposed new or modified stationary
sources are balanced by reductions
from existing sources to stabilize
total emissions.
Pathway (exposure)................ The physical course a chemical or
other stressor takes from its
source to the exposed receptor (See
also Exposure Route).
Pattern (of disparate impact)..... An allegation or finding that
multiple sources of a certain type
are consistently associated with
likely adverse impacts to a
protected group.
Permit............................ An authorization, license, or
equivalent control document issued
by EPA or other agency to implement
the requirements of an
environmental regulation (e.g., a
permit to operate a wastewater
treatment plant or to operate a
facility that may generate harmful
emissions).
Plain Language Action Network..... Plain Language Action Network (PLAN)
is a government-wide group working
to improve communications from the
federal government to the public.
Point Source...................... A stationary location or fixed
facility from which pollutants are
discharged; any single identifiable
source of a stressor (e.g., a pipe,
ditch, small land area, pit, stack,
vent, building).
Pollution Prevention.............. The practice of identifying areas,
processes, and activities that
create excessive waste products or
stressors, and reducing or
preventing them from occurring
through altering or eliminating a
process or activity.
Potency factor.................... A measure of the power of a toxic
stressor to cause harm at various
levels of exposure (sometimes based
on the slope of a dose-response
curve), or above a single specific
value.
Receptor.......................... An individual or group that may be
exposed to stressors.
Recipient......................... Any state or its political
subdivision, any instrumentality of
a state or its political
subdivision, any public or private
agency, institution, organization,
or other entity, or any person to
which Federal financial assistance
is extended directly or through
another recipient, including any
successor, assignee, or transferee
of a recipient, but excluding the
ultimate beneficiary of the
assistance. 40 CFR 7.25.
Reference area.................... An area from which one or more
comparison populations are drawn
for conducting a disparity
analysis.
Reference dose.................... See RfC and RfD.
Release........................... The introduction of a stressor to
the environment, where it may come
in contact with receptors.
Includes, among other things, any
spilling, leaking, pumping,
pouring, emitting, emptying,
discharging, injecting, escaping,
leaching, dumping, or disposing
into the environment.
[[Page 39686]]
RfC (inhalation reference An estimate (with uncertainty
concentration). spanning perhaps an order of
magnitude) of the daily exposure of
the human population to a chemical,
through inhalation, that is likely
to be without risk of harmful
effects during a lifetime.
RfD (oral reference dose)......... An estimate (with uncertainty
spanning perhaps an order of
magnitude) of the daily exposure of
the human population to a chemical,
through ingestion, that is likely
to be without risk of harmful
effects during a lifetime.
Risk.............................. A measure of the probability that
damage to life, health, property,
and/or the environment will occur
as a result of a given hazard. In
quantitative terms, risk is often
expressed in values ranging from
zero (representing the certainty
that harm will not occur) to one
(representing the certainty that
harm will occur). The following are
examples showing the manner in
which cancer risk is expressed: E-
4=1 in 10-4, or a risk of 1 in
10,000; E-5=a risk of 1/100,000; E-
6=a risk of 1/1,000,000. Similarly,
1.3E-3=a risk of 1.3/1000=1 chance
in 770.
Risk Assessment................... Qualitative and quantitative
evaluation of the risk posed to
human health and/or the environment
by the actual or potential presence
and/or use of specific stressors.
This involves a determination of
the kind and degree of hazard posed
by a stressor (e.g., toxicity), the
extent to which a particular group
of people has been or may be
exposed to the agent, and the
present or potential health risk
that exists due to the agent.
Science Advisory Board (SAB)...... A group of external scientists who
advise EPA on science and policy.
Significant....................... A determination that an observed
value is sufficiently large and
meaningful to warrant some action.
(See statistical significance).
Source............................ The site, facility, or origin from
which one or more environmental
stressors originate (e.g., factory,
incinerator, landfill, storage
tank, field, vehicle).
Statistical significance.......... An inference that there is a low
probability that the observed
difference in measured or estimated
quantities is due to variability in
the measurement technique, rather
than due to an actual difference in
the quantities themselves.
Stressor.......................... Any factor that may adversely affect
receptors, including chemical
(e.g., criteria pollutants, toxic
contaminants), physical (e.g.,
noise, extreme temperatures, fire)
and biological (e.g., disease
pathogens or parasites). Generally,
any substance introduced into the
environment that adversely affects
the health of humans, animals, or
ecosystems. Airborne stressors may
fall into two main groups: (1)
Those emitted directly from
identifiable sources and (2) those
produced in the air by interaction
between chemicals (e.g., most
ozone).
Threshold......................... The dose or exposure level below
which an adverse impact is not
expected. Most carcinogens are
thought to be non-threshold
chemicals, to which no exposure can
be presumed to be without some risk
of contracting the disease.
Toxicity.......................... The degree to which a substance or
mixture of substances can harm
humans or animals. (See chronic
toxicity).
Unit risk factor.................. A measure of the power of a toxic
stressor to cause cancer at various
levels of exposure (based on the
slope of a dose-response curve,
combined with an exposure
scenario).
Universe of Sources............... A category of relevant and/or nearby
sources of similar stressors to
those from the permitted activity
included in assessments of
potential adverse disparate
impacts.
Voluntary Compliance.............. Settlement between EPA and a
recipient after a formal finding of
noncompliance.
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BILLING CODE 6560-50-P
[[Page 39687]]
[GRAPHIC] [TIFF OMITTED] TN27JN00.000
BILLING CODE 6560-50-C
[[Page 39688]]
D. Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance
This document summarizes and addresses the key issues raised in
comments received by the U.S. Environmental Protection Agency (EPA)
concerning the February 4, 1998, Interim Guidance for Investigating
Title VI Administrative Complaints Challenging Permits (Interim
Guidance). These key issues were raised in a number of forums,
including the over 120 written comments received on the Interim
Guidance, meetings with a number of stakeholder representatives over
the past two years, the meetings of the Title VI Implementation
Advisory Committee of the National Advisory Council for
Environmental Policy and Technology (Title VI Implementation
Advisory Committee), a facilitated meeting with a variety of
stakeholders on draft options under consideration for inclusion in
the revised investigation guidance, and the internal EPA and
Department of Justice review processes.
This summary explains how the Draft Revised Guidance for
Investigating Title VI Administrative Complaints Challenging Permits
(Draft Revised Investigation Guidance) and the Draft Title VI
Guidance for EPA Assistance Recipients Administering Environmental
Permitting Programs (Draft Recipient Guidance), which are being
published in the Federal Register concurrently with this document,
deal with the key issues raised. This summary should not be read
without also considering the two draft guidance documents.
The statements in this document are intended solely as guidance.
This document is not intended, nor can it be relied upon, to create
any rights or obligations enforceable by any party in litigation.
EPA may decide to follow the guidance provided in this document, or
to act at variance with the guidance, based on its analysis of the
specific facts presented. This guidance may be revised to reflect
changes in EPA's approach to implementing Title VI. In addition,
this guidance does not alter in any way, a regulated entity's
obligation to comply with applicable environmental laws.
General Issues
Stakeholder Input
A number of commenters raised questions about the stakeholder
input process for the Interim Guidance and the Draft Revised
Investigation Guidance.
Response: Issuance of the Interim Guidance opened a continuing
dialogue with stakeholders that helped to shape the Agency's Draft
Revised Investigation Guidance. EPA provided a 90-day comment period
on the Interim Guidance during which time more than 120 commenters
representing a broad range of interested parties provided written
comments. The Title VI Implementation Advisory Committee, with
representatives from environmental justice organizations, community
groups, state and local governments, businesses, and academia, also
provided input about the Interim Guidance. In addition, over the
past two years, EPA staff have met with other representatives from
those groups to discuss their concerns about environmental justice
and Title VI issues. Furthermore, in September 1999, EPA held three
sessions with representatives of various stakeholder groups to
discuss policy options the Agency was considering as it revised the
Interim Guidance. (A current list of scheduled outreach meetings is
posted on EPA's Office of Civil Rights' (OCR) Web site at
www.epa.gov/civilrights).
Based upon that input and on experience gained from processing
and investigating complaints during the intervening months, EPA
developed the Draft Revised Investigation Guidance. In today's
Federal Register document, EPA has established a 60-day public
comment period on both the Draft Revised Investigation Guidance and
the Draft Recipient Guidance. During the public comment period, EPA
will host five public listening sessions at EPA headquarters and
regional offices. Details regarding the listening sessions are
provided in the Public Comment Period section of this notice.
Additionally, EPA staff will meet with various stakeholder groups
during the public comment period to listen to their comments.
EPA's Authority To Issue Guidance
A number of commenters raised concerns about EPA's authority to
issue the Interim Guidance, including one who stated that EPA's
regulatory authorities under Title VI extend only to prohibiting
cases of intentional discrimination and not to prohibiting instances
of discriminatory effects. The commenter asserted that the Supreme
Court has held that the Fourteenth Amendment to the U.S.
Constitution prohibits only intentional discrimination, and not
instances of discriminatory effects. Likewise, the commenter
claimed, the Supreme Court held that the authority granted under
Title VI extends no further than the Fourteenth Amendment, and
therefore does not prohibit discriminatory effects. A further
commenter stated that a Supreme Court decision invalidated EPA's
Title VI regulations.
Response: Title VI itself prohibits intentional
discrimination.\161\ To find intentional discrimination, it must be
proven that ``a challenged action was motivated by an intent to
discriminate.'' \162\ This standard requires a showing that the
recipient was aware of the complainant's race, color, or national
origin, and that the recipient acted, at least in part, because of
the complainant's race, color, or national origin.\163\ Evidence of
discriminatory intent may be direct or circumstantial.\164\
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\161\ Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 589
(1983).
\162\ Elston v. Talladega County Bd. of Educ., 997 F.2d 1394,
1406 (11th Cir. 1993).
\163\ See Civil Rights Division, U.S. Department of Justice,
Title VI Legal Manual 48-53 (Sept. 1998).
\164\ Id.
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In addition, the Supreme Court has stated that Title VI
authorizes agencies to adopt implementing regulations that also
prohibit discriminatory effects.\165\ This is often referred to as
reaching actions that have an unjustified disparate impact. In July
1994, the Attorney General issued a memorandum to the heads of all
Federal agencies with Title VI responsibilities stating that
``[e]nforcement of the disparate impact provisions is an essential
component of an effective civil rights compliance program.'' \166\
The Attorney General directed the head of each Federal agency ``to
make certain that Title VI is not violated, [and] ensure that the
disparate impact provisions in [the Title VI] regulations are fully
utilized.'' \167\
---------------------------------------------------------------------------
\165\ See Alexander v. Choate, 469 U.S. 287, 292-94 (1985);
Guardians Ass'n, 463 U.S. at, 584 n.2 (White, J.); id. at 623 n.15
(Marshall, J.); id. at 642-45 (Stevens, Brennan, Blackmun, JJ.).
\166\ See Memorandum from Janet Reno, Attorney General, to Heads
of Departments and Agencies that Provide Federal Financial
Assistance 1 (July 14, 1994) (titled The Use of the Disparate Impact
Standard in Administrative Regulations Under Title VI of the Civil
Rights Act of 1964).
\167\ Id.
---------------------------------------------------------------------------
Congress intended that its policy against discrimination by
recipients of Federal assistance be implemented, in part, through
administrative rulemaking.\168\ Federal agencies were directed to
promulgate standards in the form of rules, regulations, and orders,
governing the administration of Title VI.\169\ Title VI ``delegated
to the agencies in the first instance the complex determination of
what sorts of disparate impacts upon minorities constituted
sufficiently significant social problems, and were readily enough
remediable, to warrant altering the practices of the federal
grantees that had produced those impacts.'' \170\ EPA promulgated
regulations that implement Title VI in 1973 and revised those
regulations in 1984.\171\
---------------------------------------------------------------------------
\168\ 42 U.S.C. 2000d-1.
\169\ Id.
\170\ Alexander, 469 U.S. at 293-94; see also Charles F.
Abernathy, Title VI and the Constitution: A Regulatory Model for
Defining Discrimination, 70 Geo. L.J. 1, 32 (1981) (concluding that
Congress intended ot confer wide discretion on agencies by giving
them rule making authority).
\171\ 38 FR 17968 (1973), as amended by 49 FR 1656 (1984)
(codified at 40 CFR part 7).
---------------------------------------------------------------------------
EPA's regulations implementing Title VI adopt a discriminatory
effects standard and expressly provide that:
A recipient shall not use criteria or methods of administering
its programs which have the effect of subjecting individuals to
discrimination because of their race, color, [or] national origin *
* * or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program with respect to
individuals of a particular race, color, [or] national origin * *
*.\172\
\172\ 40 CFR 7.35(b) (emphasis added).
---------------------------------------------------------------------------
Frequently, discrimination results from policies and practices that
are neutral on their face, but have the effect of discriminating.
Facially neutral policies and practices that result in discriminatory
effects violate EPA's Title VI regulations, unless it is shown that
they are legitimately justified and there is no less discriminatory
alternative.\173\
---------------------------------------------------------------------------
\173\ See Memorandum from Attorney General, supra note 7, at 1-
2.
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[[Page 39689]]
In enacting Title VI, Congress relied on the Fifth and Fourteenth
Amendments to the Constitution, which guarantee due process and equal
protection under laws.\174\ In addition, Congress relied on its
authority under the spending clause of the Constitution,\175\ rather
than its authority under the commerce clause.\176\ Title VI was not
intended to serve as a regulatory measure over state and local
activities, rather, it allows the Federal government to require
compliance with Title VI as a condition of receiving assistance. ``No
recipient [was] required to accept Federal aid. If he [did] so
voluntarily, he must take it on the conditions on which it [was]
offered. \177\ EPA is unaware of any case law that overturned the
Supreme Court's decision and invalidated Federal agencies' Title VI
implementing regulations.
---------------------------------------------------------------------------
\174\ For a further discussion of the legislative history of
Title VI, see U.S. commission on Civil Rights, Federal Title VI
Enforcement to Ensure Nondiscrimination in Federally Assisted
Programs 25-30 (June 1996).
\175\ U.S. Const., art. I, section 8, cl. 1.
\176\ U.S. Const., art. I, section 8, cl. 3.
\177\ 110 Cong. Rec. S6546 (1964) (statement of Sen. Humphrey).
---------------------------------------------------------------------------
Interplay Between Guidance and Executive Order 12898
A number of commenters argued that EPA incorrectly relied on
Executive Order 12898, ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations,'' as
authority to issue the Interim Guidance.
Response: EPA did not rely on Executive Order 12898 \178\ to
provide authority for issuing the Interim Guidance. EPA relied on Title
VI itself. Title VI ``delegated to the agencies in the first instance
the complex determination of what sorts of disparate impacts upon
minorities constituted significant social problems, and were readily
enough remediable, to warrant altering the practices of the Federal
grantees that had produced those impacts.'' \179\ In addition, the
Department of Justice (DOJ), which is charged with coordinating the
Federal government's Title VI work,\180\ issued regulations that
provide, in part, that ``Federal agencies shall publish Title VI
guidelines for each type of program to which they extend financial
assistance.'' \181\ Further, Executive Order 12250, which directed the
Attorney General to coordinate the implementation and enforcement of
Title VI by Federal agencies, also requires agencies to issue
appropriate implementing directives either in the form of policy
guidance or regulations that are consistent with requirements
proscribed by the Attorney General.\182\ Pursuant to that authority,
EPA issued the Interim Guidance, and is now issuing the Draft Revised
Investigation Guidance and the Draft Recipient Guidance.
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\178\ Executive Order 12898, 59 FR 7629 (1994). Executive Order
12898, in part, directs Federal agencies to ensure that Federal
actions substantially affecting human health or the environment do
not have discriminatory effects based on race, color, or national
origin.
\179\ Alexander v. Choate, 469 U.S. 287, 292-94 (1985); see also
Charles F. Abernathy, Title VI and the Constitution: A Regulatory
Model for Defining Discrimination, 70 Geo. L.J. 1, 32 (1981)
(concluding that Congress intended to confer wide discretion on
agencies by giving them rule making authority).
\180\ Executive Order 12250, 45 FR 72995 (1980).
\181\ 28 CFR 42.404(a).
\182\ Executive Order 12250, section1-402.
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Consistency With EPA's Title VI Regulations
Some commenters thought that the Interim Guidance was inconsistent
with EPA's existing Title VI regulations at 40 CFR part 7.
Response: The Interim Guidance and the Draft Revised Investigation
Guidance are both consistent with EPA's Title VI implementing
regulations. The Interim Guidance, however, did not mention all of the
elements of the investigative process described in the regulations
because it only focused on certain elements of that process. As a
result, some commenters may have had the mistaken impression that OCR
did not intend to conform its investigations to the regulations. In
order to remedy that problem, the Draft Revised Investigation Guidance
makes clear that OCR will conform its investigations to EPA Title VI
regulations and it includes a complete discussion of the regulations'
complaint handling procedures, including the 30-day opportunity for
recipients to respond to the allegations, as specified in 40 CFR
7.120(d)(iii). In addition, the Draft Revised Investigation Guidance
eliminates the initial finding of disparate impact, which was included
in the Interim Guidance primarily to promote informal resolution before
a preliminary finding of noncompliance.
Interim Guidance and Notice-and-Comment Rulemaking
Some commenters argued that the Interim Guidance constitutes a rule
and should have been issued pursuant to the Administrative Procedure
Act and the requirements of the Small Business Regulatory Enforcement
Fairness Act.
Response: OCR only intends the Interim Guidance and the Draft
Revised Investigation Guidance to provide a framework for the
processing of complaints filed under Title VI. The draft guidance
documents update the Agency's procedural and policy framework to
accommodate the increasing number of Title VI complaints that allege
discrimination in the environmental permitting context. Neither creates
any new substantive rights nor establishes any binding legal
requirements. Accordingly, both the Interim Guidance and the Draft
Revised Investigation Guidance are expressly exempted from the notice-
and-comment rulemaking requirements of the Administrative Procedure Act
by section 553(b)(A).\183\ Nonetheless, EPA is publishing the Draft
Revised Investigation Guidance in the Federal Register and on EPA's Web
site to solicit written public comment, and EPA will also hold a series
of public listening sessions to obtain additional feedback.
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\183\ 5 U.S.C. 553(b)(A) (``Except when notice or hearing is
required by statute, this subsection does not apply * * * to
interpretive rules, general statements of policy, or rules of agency
organization, procedure, or practice.'').
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With respect to impacts on small entities, including small
businesses, because the Interim Guidance did not, and the Draft Revised
Investigation Guidance will not, establish any binding legal
requirements, there is no regulatory impact to any entity of any size.
The analytical requirements of the Regulatory Flexibility Act, as
amended by the Small Business Regulatory Enforcement Fairness Act, only
apply to certain regulations that impose an impact on those small
entities directly regulated by a proposed or final regulation.\184\
That is not the case here.
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\184\ Motor & Equip. Mfg. Ass'n v. Nichols, 142 F.3d 449 (D.C.
Cir. 1998); Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327 (D.C.
Cir. 1985).
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Scope and Applicability of the Guidance and Permit Modifications
EPA received comments regarding the scope of activities that the
Interim Guidance is intended to address. Some felt that it should
address a broader range of activities, such as allegations regarding
discriminatory enforcement or discrimination in public participation
processes. Other commenters felt that it should be narrowed by limiting
its applicability to only new permits. EPA received numerous comments
about permit modifications, some of which suggested that modifications
should be covered by the guidance, and others of which suggested that
all or some modifications should be excluded.
Response: In order to maximize the use of its limited resources,
OCR felt
[[Page 39690]]
that it should focus the Interim Guidance and the Draft Revised
Investigation Guidance on environmental permitting because the majority
of Title VI complaints filed with EPA allege discrimination associated
with the issuance of environmental permits. Also, most of the
complaints to date have made allegations of discriminatory effects;
however, Title VI complaints may also allege discriminatory intent. The
focus of the Draft Revised Investigation Guidance is on the more common
effects allegations, rather than investigating allegations of
discriminatory intent. Discriminatory intent complaints generally will
be investigated by OCR under Title VI, EPA's Title VI regulations, and
applicable intentional discrimination case law. EPA intends to issue
guidance on other applications of Title VI, as appropriate, in the
future.
Under the Draft Revised Investigation Guidance, OCR expects that
any type of permit actions, including new permits, renewals, and
modifications, could form the basis for an investigation if the permit
allows existing levels of alleged adverse disparate impacts to continue
unchanged or causes an increase (e.g., landfill capacity doubled).\185\
For all types of permits, the mere filing of a Title VI complaint,
whether or not accepted by OCR for investigation, will not stay or
reverse the permitting action.
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\185\ See Draft Revised Investigation Guidance, section
VI.B.1.a.
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The Draft Revised Investigation Guidance states that permit
modifications that are merely administrative, such as a facility name
change, and that do not involve actions related to the impacts
identified in the complaint, are not likely to form the basis for an
investigation. If this were the case, OCR would likely close the
complaint investigation.\186\
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\186\ Id.
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The Draft Revised Investigation Guidance addresses permits that
either result in decreases in emissions or decreases in adverse
disparate impacts. OCR will likely not initiate an investigation of
complaints alleging discriminatory effects from emissions, including
cumulative emissions, where the permit action that triggered the
complaint significantly decreases overall emissions \187\ at the
facility. In addition, OCR would not initiate an investigation of
allegations alleging discriminatory effects from emissions, including
cumulative emissions of pollutants or stressors of concern named in the
complaint where the permit action that triggered the complaint
significantly decreases all named pollutants of concern or all the
pollutants OCR reasonably infers are the potential source of the
alleged impact. Recipients should demonstrate \188\ (not merely assert)
that the decrease is actual and is significant.
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\187\ Assessing a significant overall decrease would entail
taking into account factors such as total quantity and relative
toxicity of the emissions reductions.
\188\ A recipient may use actual monitoring data, reasonable
estimates, permit limits, parametric monitoring, or any other
reliabale means to demonstrate the decrease to the satisfaction of
EPA.
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If an investigation is conducted and OCR determines that the permit
that triggered the complaint clearly leads to a significant decrease in
adverse disparate impacts, then any voluntary compliance measures
required by OCR take that decrease into account, because it is unlikely
that particular permit is solely responsible for the adverse disparate
impacts. While a specific complaint may be dismissed on the basis of a
decrease, OCR may choose to conduct a compliance review of the
recipient's relevant permit program either at that point in time or at
some future date. (40 CFR 7.110 and 7.115). The analysis of whether
discriminatory effects result from cumulative emissions, and any
resulting remedy, would include consideration of the emissions from the
permit actions that triggered the original complaint (i.e., the one
that resulted in the decrease).
Federally Recognized Indian Tribes
One commenter asserted that Tribes should not be excluded from the
Interim Guidance because they too receive Federal funds.
Response: The Draft Revised Investigation Guidance does not address
complaints against EPA recipients that are Federally-recognized Indian
tribes. That subject will be addresses by EPA in separate guidance
because the applicability of Title VI to Federally-recognized tribes
involves unique issues of Federal Indian law. EPA recently concluded a
consultation with Federally-recognized tribes and now plans to address
the issue in collaboration with DOJ.
Application of Title VI and the Interim Guidance to EPA Permitting
Actions
Several comments concerned whether Title VI and the Interim
Guidance applied to EPA.
Response: EPA is committed to a policy of nondiscrimination in its
own permitting programs. The equal protection guarantee in the Due
Process Clause of the U. S. Constitution prohibits the Federal
government from engaging in intentional discrimination.\189\ Moreover,
section 2-2 of Executive Order 12898 \190\ is designed to ensure that
Federal actions substantially affecting human health or the environment
do not have discriminatory effects based on race, color, or national
origin. However, Title VI is inapplicable to EPA actions, including
EPA's issuance of permits, because it only applies to recipients of
Federal financial assistance, not to Federal agencies. The statute
clearly defines ``program or activity'' to exclude Federal
agencies.\191\
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\189\ U.S. Const. amend. V; see also Washington v. Davis, 426
U.S. 229, 239 (1976).
\190\ Section 2-2 provides: Each Federal agency shall conduct
its programs, policies, and activities that substantially affect
human health or the environment, in a manner that ensures that such
programs, policies, and activities do not have the effect of
excluding persons (including populations) from participation in,
denying persons (including populations) the benefits of, or
subjecting persons (including populations) to discrimination under,
such programs, policies, and activities, because of their race,
color, or national origin.
Executive Order 12898, 59 FR 7629 (1994).
\191\ 42 U.S.C. 2000d-4a. See also Soberal-Perez v. Heckler, 717
F.2d 36, 38 (2d Cir. 1983) (``[Title VI] was meant to cover only
those situations where federal funding is given to a non-federal
entity which, in turn, provides financial assistance to the ultimate
beneficiary.''); Williams v. Glickman, 936 F. Supp. 1, 5 (D.D.C
1996) (``Title VI does not apply to the programs conducted directly
by federal agencies.'').
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Consistency With State Permitting Procedures
A number of commenters suggested that the Interim Guidance was not
fully consistent with state permitting procedures, and therefore
inappropriate because it requires actions that may go beyond the
authority provided in existing statutes and regulations.
Response: The Interim Guidance was issued to implement Title VI of
the Civil Rights Act of 1964. It was not intended to implement
environmental law. EPA believes that compliance with environmental laws
does not constitute per se compliance with Title VI. Frequently,
discrimination results from policies and practices that are neutral on
their face, but have the effect of discriminating. EPA recognizes that
most permits control pollution, which is beneficial, but could, in some
cases, still raise Title VI concerns because environmental laws do not
account for disparity on the basis of race, color, or national origin.
Title VI is concerned with how the effects of the programs and
activities of a recipient are distributed based on race, color, or
national origin. No Federal environmental laws address the issue of a
disparity of impacts based on race, color, or national origin that may
result from environmental permits.
[[Page 39691]]
Consequently, the scope of a recipient's Title VI obligation is not
circumscribed by the framework established to carry out their
environmental regulatory program.\192\
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\192\ Although not determinative, compliance with certain types
of environmental standards may play a role in a Title VI
investigation. See Draft Revised Investigation Guidance section
VI.B.4.b.
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A recipient's Title VI obligation is layered upon its separate, but
related obligations under the Federal or state environmental laws
governing its environmental permitting program. Applicants for EPA
financial assistance are required to submit an assurance with their
applications stating that they will comply with the requirements of
EPA's Title VI regulations.\193\ Recipient agencies must comply with
EPA's Title VI regulations, which are incorporated by reference into
the grants, as a condition of receiving funding under EPA's continuing
environmental programs. It is EPA's position that Title VI and EPA's
implementing regulations act as a substantive bar to discrimination
under programs operated by EPA assistance recipients.
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\193\ 40 CFR 7.80(a)(1).
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A number of commenters argued that the key reasons why adverse
disparate impacts might exist are controlled by factors outside the
powers of state permitting agencies. One commenter cited factors such
as market forces, stringency of environmental regulation and zoning,
and land use laws. One commenter suggested that if disparate impact
were found, EPA should curtail funding for agencies with authority over
local land use planning, and not agencies with no control over siting
or zoning.
Response: Some have argued that the issuance of environmental
permits does not ``cause'' discriminatory effects.\194\ Instead, they
claim that local zoning decisions or siting decisions determine the
location of the sources and the distribution of any impacts resulting
from the permitted activities. However, in order to operate, the
source's owners must both comply with local zoning requirements and
obtain the appropriate environmental permit.
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\194\ If an EPA recipient is involved in the siting of a
facility, EPA's Title VI regulations also prohibit recipients from
choosing a site that has discriminatory effects. 40 CFR 7.35(c).
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In the Title VI context, the issuance of a permit is the necessary
act that allows the operation of a source in a given location that
could give rise to the adverse disparate effects on individuals.
Therefore, a state permitting authority has an independent obligation
to comply with Title VI, which is a direct result of its accepting
Federal assistance and giving its assurance to comply with Title VI. In
accordance with 40 CFR 7.35(b), recipients are responsible for ensuring
that the activities authorized by their environmental permits do not
have discriminatory effects, regardless of whether the recipient
selects the site or location of permitted sources. Accordingly, if the
recipient did not issue the permit, altered the permit, or required
mitigation measures, certain impacts that are the result of the
operation of the source could be avoided. The recipient's operation of
its permitting program is independent of the local government zoning
activities.
Impact on States and Other Recipient's Environmental Programs
Some comments expressed concern about whether the Interim Guidance
can be implemented consistently with environmental laws. In particular,
some believed that the Interim Guidance may open recipients' permitting
decisions to legal challenge. Others felt that the Interim Guidance
requires recipients to address social and economic issues that they are
not prepared to address.
Response: EPA prohibits discriminatory effects in programs and
activities administered by its recipients. With regard to environmental
permitting programs, the scope of coverage includes, but is not limited
to, the screening of permit applications, the public participation
process for permit issuance, and the adverse disparate impacts that may
result from the permits that the recipient issues. Recipients use a
variety of criteria or methods of administration to implement their
permitting programs, and they have a duty to comply with their Title VI
obligation in exercising their permitting authority. This means that
recipients have an obligation under Title VI and EPA's regulations to
ensure that their approval of a permit does not subject those protected
under Title VI to unjustified discriminatory effects, including human
health and environmental effects.
The Interim Guidance should not interfere with permitting programs
that have properly been designed to meet Title VI obligations. The
Draft Recipient Guidance suggests approaches and individual activities
that recipients can develop to proactively address Title VI concerns in
the permitting process.\195\ In terms of states' susceptibility to
legal challenges to permitting decisions, recipients are already
subject to legal challenges by individuals who have a private right of
action in court to enforce the nondiscrimination requirements in Title
VI and EPA's Title VI implementing regulations without exhausting their
administrative remedies.\196\
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\195\ See Draft Recipient Guidance, section II.
\196\ See Powell v. Ridge, 189 F.3d 387, 399 (3rd Cir.), cert.
denied, 120 S. Ct. 579 (1999).
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EPA has issued the Draft Revised Investigation Guidance to clarify
how EPA will handle complaint investigations and thereby reduce
confusion. Neither the Interim Guidance nor the Draft Revised
Investigation Guidance requires EPA recipients to take any action. The
documents merely provide a framework for OCR to address certain
complaints. Similarly, the Draft Recipient Guidance only offers
suggestions for recipients to address Title VI concerns, but it does
not require that recipients take any action. On the other hand, Title
VI and EPA's Title VI implementing regulations prohibit entities from
discriminating when they accept EPA's financial assistance. Rather than
impeding a recipient's efforts to balance environmental protection with
other considerations and to operate its permitting program, Title VI
and EPA's regulations should help guide recipients in those efforts.
Neither the Interim Guidance nor the Draft Revised Investigation
Guidance requires recipients to address social and economic issues that
they are not authorized to address. EPA expects to only assess the
adverse disparate impact that result from factors within the
recipient's authority to consider as defined by applicable laws,
including those that involve broader cross-cutting matters.\197\
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\197\ See Draft Revised Investigation Guidance, section
VI.B.2.a.
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Public Participation and Stakeholder Input in the Permitting Process
Several comments concerned the relationship between the public
participation processes required by environmental law and the process
discussed in the Interim Guidance.
Response: Although the Interim Guidance does not specify how to
approach Title VI concerns in the public participation process, the
Draft Recipient Guidance provides suggestions and techniques that a
recipient can use to develop procedures for its permitting process to
ensure a non-discriminatory public participation process.\198\ EPA
recognizes that recipients have different resources, organizational
structures, and issues. Therefore, if a recipient elects to develop or
modify its public participation process, it is up to the
[[Page 39692]]
recipient to choose which suggestions or techniques are most suitable
to address its needs. It is not limited to adopting the suggestion or
technique mentioned in the Draft Recipient Guidance. If OCR accepts a
complaint regarding a recipient's public participation process, OCR
expects to give due weight \199\ to a permitting program if it ensures
a non-discriminatory public participation process.\200\
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\198\ See Draft Recipient Guidance, section II.B.2. (discussing
factors that contribute to effective and meaningful public
participation).
\199\ See Draft Revised Investigation Guidance, Appendix A
(defining ``due weight'').
\200\ See Draft Recipient Guidance, section II.B.2. (discussing
the circumstances under which OCR might accord a public
participation process due weight).
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Need for External Guidance
Some commenters requested that EPA develop guidance for recipients
to assist them in their efforts to comply with Title VI and EPA's Title
VI regulations.
Response: EPA encourages recipients to address Title VI issues
early in the permitting process to reduce the likelihood that Title VI
complaints will be filed after a permit has been issued. Although the
Interim Guidance does not provide a framework for addressing Title VI
concerns before the permit has been issued, the Draft Recipient
Guidance provides recipients with suggestions that they can voluntarily
use to address potential Title VI problems and reduce the likelihood of
Title VI complaints.
The Draft Recipient Guidance offers several suggestions to assist
recipients in addressing those issues, including: (1) Development of
new public participation procedures, or modification of existing
procedures, to better incorporate and address the public's concerns;
\201\ (2) creation of an approach to identify areas where adverse
impacts disparately affect people on the basis of race, color, or
national origin, and to reduce those impacts over time; \202\ and (3)
performance of additional Title VI-related analyses and actions in some
permitting decisions to address Title VI concerns.\203\ If recipients
decide to develop Title VI programs, they may take the steps they deem
appropriate to address their particular Title VI concerns and they are
not limited to the suggestions offered by the Draft Recipient Guidance.
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\201\ See id., section II.B.2.
\202\ See id., section II.A.2.
\203\ See id., section II.A.3.
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Definition of Terms
A variety of commenters requested that EPA provide more precise
definitions of terms used in the Interim Guidance (e.g., disparate
impact, affected population, mitigation). These commenters argued that
because the Interim Guidance lacked precise definitions, they could not
provide a reasonable critique. Commenters identified a number of terms
that they believed would benefit from further definition and still
other terms and phrases for which clarification was sought.
Response: In the Draft Revised Investigation Guidance, EPA provides
more clarity and gives definition to many terms presented in the
Interim Guidance by including examples within the text, as well as a
glossary of terms as an attachment. However, the exact parameters of
some terms, such as what constitutes a adverse impact, appropriate
mitigation, and acceptable justification, will depend upon case-
specific circumstances. EPA has also eliminated other terms that may
have been confusing, ambiguous, or unnecessary.
Unfunded Mandates Reform Act
Some commenters felt that the Interim Guidance will impose an
unfunded mandate on states if they must revise existing permitting
processes to conform to the guidance.
Response: The Unfunded Mandates Reform Act of 1995 (UMRA) applies
when an agency decides to take regulatory action through
rulemaking.\204\ OCR issued the Interim Guidance as a non-binding
policy statement because the Interim Guidance (and the Draft Revised
Investigation Guidance) merely provide a framework for the processing
of Title VI administrative complaints. Neither document creates any new
substantive rights nor establishes any binding legal requirements.
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\204\ Public Law 104-4, 109 Stat. 48 (1995) (codified at 2
U.S.C. 1501 et seq. (Supp. III 1998)).
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Moreover, even if OCR has issued the Interim Guidance as a rule,
the scope of UMRA's coverage does not include the provisions of a
proposed or final Federal regulation that establish or enforce
nondiscrimination requirements, such as those in Title VI.\205\ If one
or more provisions of a Title VI-related rule fell outside this
exception, the Agency would be required to assess the effects of these
regulatory provisions on state, local, and tribal governments and the
private sector, pursuant to Title II of UMRA.
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\205\ 2 U.S.C. 1503(2).
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The Draft Recipient Guidance was created to assist state and local
governments in their efforts to address Title VI concerns. Both draft
guidance documents were developed with significant input from state and
local governments. EPA plans to assist state efforts by sharing
methodologies and information pertaining to the adverse disparate
impact assessment whenever practicable.
Brownfields and Clean-Ups
Several comments concerned the effect of the Interim Guidance on
brownfields redevelopment, economic development, and clean-up
activities.
Response: EPA does not believe that the Interim Guidance or the
Draft Revised Investigation Guidance discourage brownfield
redevelopment or encourage greenfield development. In fact, in a recent
report analyzing the interaction between Title VI and brownfields, EPA
found that ``claims that EPA's Interim Title VI Guidance would hinder
brownfields redevelopment are largely unfounded. * * * It is apparent
from the interviews conducted for these case studies that while there
are many potential issues that can forestall redevelopment at
brownfields sites, Title VI is not high on the list of concerns.''
\206\ Also, no Title VI complaints have been filed regarding EPA
brownfields projects.
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\206\ Office of Solid Waste and Emergency Response, U.S. EPA,
Brownfields Title VI Case Studies: Summary Report 23 (1999).
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EPA believes that the implementation of civil rights and
environmental laws is compatible and consistent with state and local
recipients' efforts to achieve sustainable economic development.
Addressing Title VI concerns in the permitting process does not prevent
sustainable development, but rather ensures responsible development
that protects the basic right of every citizen not to be discriminated
against. EPA is firmly committed to continuing its work with community
leaders, state and local governments, and businesses to facilitate
economic development while ensuring strong protections of public
health, the environment, and basic civil rights.
Both the Interim Guidance and the Draft Revised Investigation
Guidance address Title VI issues related to environmental permitting
decisions. EPA may, if appropriate, develop future guidance relating to
Title VI and clean-up activities.
Issues Regarding the Overall Framework for Processing Complaints
Involvement of Additional Parties
Several commenters urged that additional parties be involved in the
evaluation of complaints including the permit applicant, the affected
[[Page 39693]]
community, the complainant, and the recipient of Federal assistance.
Response: Depending upon the specifics of each complaint, OCR
expects to involve a variety of parties in its investigations of Title
VI complaints. OCR plans to work closely with recipients to ensure that
the Agency has a complete and accurate record, and a full understanding
of the recipient's position.\207\
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\207\See Draft Revised Investigation Guidance, section II.B.1.
(discussing when recipients can provide information to OCR).
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Once a complaint is accepted for investigation by OCR, complainants
may play an important role in the administrative process; however, that
role is determined by the nature and circumstances of the claims.\208\
Complainants will likely be asked to allow OCR to conduct interviews
and to collect a variety of documents during the course of the
investigation. Also, complainants may play an important role in the
informal resolution process. However, it is important to note that EPA
does not represent the complainants, but rather the interests of the
Federal government, in ensuring nondiscrimination by its recipients.
Other members of the community could be involved in a similar manner.
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\208\ See Draft Revised Investigation Guidance, section II.B.2.
(providing additional discussion about a complainant's role in OCR's
investigation).
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The permittee may also be asked to provide information to assist in
the investigation of the complaint. The recipient may wish to notify
the permittee about the investigation, particularly if potential
mitigation measures may involve the permittee. During several
investigations, permit applicants have sent information to OCR that
they believe is relevant. In those instances, OCR has reviewed the
information and placed it in the investigatory file.
Submission of Information by Recipients and Complainants
Some comments raised questions about the points in the
investigation process when recipients and complainants should provide
or receive information.
Response: EPA's Title VI implementing regulations provide the
recipient with several opportunities to respond to and/or to rebut both
a complaint and OCR's findings. It is both up to the recipient and in
the recipient's interest to provide a rebuttal as early as possible
because it might help to quickly resolve the complaint. As the Draft
Revised Investigation Guidance explains, the recipient may make a
written submission responding to, rebutting, or denying the allegations
raised in a complaint within 30 calendar days of receiving notification
that a complaint has been accepted.\209\ OCR will then attempt to
resolve the complaint informally, during which time the recipient will
have a second opportunity to state its position.
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\209\ See Draft Revised Investigation Guidance, section II.A.1.
See also 40 CFR 7.120(d)(1).
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If OCR later makes a preliminary finding of noncompliance, the
recipient may then submit a written response, within 50 calendar days
of receiving the preliminary finding, demonstrating that the
preliminary findings are incorrect or that compliance may be achieved
through steps other than those recommended by OCR.\210\ Finally, if OCR
initiates procedures to deny, annul, suspend, or terminate EPA
assistance, a recipient may request a hearing before an administrative
law judge (ALJ).\211\ If the ALJ's decision upholds OCR's finding of
noncompliance, the recipient may then file exceptions with the
Administrator.\212\
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\210\ See Draft Revised Investigation Guidance, section II.A.4.
See also 40 CFR 7.115(d).
\211\ 40 CFR 7.130(b)(2).
\212\ 40 CFR 7.130(b)(3).
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Once a complaint has been accepted for investigation by OCR, the
complainants may play an important role in the investigative process,
as well as in the informal resolution process; however, that role is
determined by the nature and circumstances of the claims.\213\ EPA's
Title VI regulations and administrative investigations are not designed
to create an adversarial relationship between the complainant and the
recipient. Rather, the process should be viewed as EPA investigating
allegations of improper use of EPA financial assistance.
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\213\ See Draft Revised Investigation Guidance, section II.B.2.
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Because the process is not adversarial, the complainants do not
have the burden of proving that their allegations are true.
Investigating allegations and determining compliance is EPA's job.
However, complainants are encouraged to provide information that is
helpful to the investigation and resolution of the complaint. It is
important to note that EPA does not represent the complainants, but
rather the interests of the Federal government in ensuring
nondiscrimination by its recipients.
The complainants may provide documentary evidence in support of
their allegations as attachments to the complaint. Recipients may
include evidence to support their claims in their response to the
allegations. In addition, during the course of the investigation,
complainants and recipients may seek to submit additional relevant
information that comes to their attention. OCR must balance the need
for a thorough investigation with the need to complete the
investigation in a timely manner. Therefore, at the conclusion of
interviews with the complainants, recipients, or other witnesses, OCR
expects to ask each to submit, within 14 calendar days of the
interview, any additional information that they would like considered
as OCR drafts its investigative report.
Ability for Complainants to Appeal
One commenter requested that EPA provide an administrative appeal
process for complainants who believe their complaints have been
inappropriately dismissed.
Response: The Title VI administrative process is not an adversarial
one between the complainant and recipient. As a result, the
complainants do not have the burden of presenting evidence to support
their allegations or proving that their allegations are true. EPA,
however, encourages complainants to provide as much information as
possible to assist in the investigation. Investigating allegations and
determining compliance is EPA's responsibility. EPA does not represent
the complainants, but rather the interests of the Federal government in
ensuring nondiscrimination by its recipient. As a result, there are no
appeal rights for the complainant built into EPA's Title VI regulatory
process. Complainants, however, may be able to challenge the
recipient's action or EPA's ultimate finding in court.
Accepting and Rejecting Complaints
Several commenters suggested that EPA raise the threshold for
accepting complaints.
Response: The criteria for accepting and rejecting complaints are
described in EPA's Title VI regulations, which are based on DOJ's model
regulations.\214\ In addition, Executive Order 12250 requires that
agencies' Title VI implementing directive ``be consistent with the
requirements prescribed by the Attorney General * * * and shall be
subject to the approval of the Attorney General * * *.'' As a result,
EPA's Title VI regulations are very similar to the criteria applied by
other agencies for accepting and rejecting Title VI complaints.
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\214\ 28 CFR 42.401-42.415.
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OCR intends to accept and investigate a complaint if it: (1) Is
written; (2) describes the alleged discriminatory act(s) of an EPA
recipient that violates
[[Page 39694]]
EPA's Title VI regulations; (3) is filed within 180 calendar days of
the alleged discriminatory act(s); and (4) is filed by a person or
member of a specific class of people that was allegedly discriminated
against in violation of EPA's Title VI regulations; or their authorized
representative.\215\
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\215\ See Draft Revised Investigation Guidance, section III.A.
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EPA regulations define a recipient as ``any State or its political
subdivision, any instrumentality of a State or its political
subdivision, any public or private agency, institution, organization,
or other entity, or any person to which Federal financial assistance is
extended directly or through another recipient.'' \216\ As mentioned
above, Title VI allows the Federal government to require compliance
with Title VI as a condition of receiving financial assistance.
Acceptance of EPA financial assistance creates an obligation on the
recipient to comply with the regulations for the duration listed below:
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\216\ 40 CFR 7.25.
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For assistance involving real property or structures on
the property, the obligation attaches ``during the period the real
property or structures are used for the purpose for which EPA
assistance is extended, or for another purpose in which similar
services or benefits are provided.'' \217\
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\217\ 40 CFR 7.80(a)(2)(i).
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For assistance in the form of personal property, the
obligation attaches ``for so long as [the recipient] continues to own
or possess the property.'' \218\
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\218\ 40 CFR 7.80(a)(2)(ii).
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In all other cases, the obligation attaches ``for as long
as EPA assistance is extended.'' \219\
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\219\ 40 CFR 7.80(a)(2)(iii).
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EPA's Title VI administrative complaint process is not designed to
be an adversarial one between the complainant and the recipient.
Rather, the complainant is providing EPA with information about
potential violations of Title VI and EPA's implementing regulations, so
that the Agency can investigate whether its funds are being spent in a
discriminatory manner. Raising the threshold for accepting complaints
for investigation would likely impose a burden of proof on Title VI
complainants at EPA that is not imposed by other Federal agencies and
would be inappropriate for the non-adversarial scheme established by
EPA's Title VI regulations.
Use of Permit Appeal Processes
Other comments concerned the relationship between Title VI
complaints filed with EPA and permit appeals filed with the permitting
authority. Several commenters suggested Title VI complaints be handled
through permitting processes.
Response: The Interim Guidance indicated EPA's support for
complainants use of recipients' permit appeal process.\220\ To
encourage early resolution of Title VI issues, OCR expects to consider
a complainant's pursuit of its Title VI concerns through the
recipient's administrative appeals process when evaluating a request to
waive the 180-day timeliness requirement for good cause.\221\
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\220\ See Interim Guidance, at 6-7.
\221\ 40 CFR 7.120(b)(2); Draft Revised Investigation Guidance,
section III.B.2.
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Similarly, the Draft Revised Investigation Guidance states that OCR
will generally dismiss complaints without prejudice (i.e., OCR may
dismiss the complaint, but that dismissal would not prohibit the
complainant from re-filing its complaint at a later date) if the issues
raised in the complaint are the subject of either ongoing
administrative permit appeals, or litigation in Federal or state
court.\222\ In such cases, OCR believes that it should await the
results of the permit appeal or litigation by waiving the time limit,
rather than conducting a simultaneous investigation on the basis of
facts that may change due to the outcome of the administrative appeal
or litigation. OCR expects to notify the complainant that it may re-
file the complaint within a reasonable time, generally not more than 60
calendar days after the conclusion of the administrative appeal
process. OCR would then likely make a determination, after considering
factors relevant to the particular case, whether to waive the 180-day
regulatory time frame.
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\222\ See Draft Revised Investigation Guidance, section III.B.3.
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If a complaint is premature, the Draft Revised Investigation
Guidance states that OCR expects to notify the complainant that the
complaint is premature and dismiss the complaint without prejudice. If
the complainant is not satisfied that the Title VI nondiscrimination
requirements have been met when the permit is issued, the complainant
can re-file its complaint if and when the permit is issued. In
addition, OCR will provide the recipient with the information contained
in the complaint to facilitate the recipient's ability to appropriately
address the concerns raised in the complaint during the permitting
process.\223\
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\223\ See Draft Revised Investigation Guidance, section III.B.4.
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OCR encourages communities, recipients, and permittees to identify
and address potential Title VI problems as early as possible. In most
cases, that should occur before the permitting process begins. In other
cases, it may occur during the permitting process. The Draft Recipient
Guidance suggests that recipients develop approaches to deal with Title
VI issues prior to or during implementation of their existing
permitting procedures.\224\ Such approaches could involve the
modification of existing public participation processes in the
recipient's permitting program, or the establishment of a plan to find
and remedy potential disparate impacts. In some cases, however, even
where such a plan is in place, if a complainant feels that a recipient
has violated Title VI or EPA's implementing regulations, OCR may have
to conduct an investigation independent of the current permitting
process.
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\224\ See Draft Recipient Guidance, section II.A.
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Imposing a requirement that complainants use all of the recipient's
available permit appeal processes prior to filing a Title VI complaint
would be inconsistent with the structure of Title VI. Courts have held
that those who believe they have been discriminated against in
violation of Title VI or EPA's implementing regulations may challenge a
recipient's alleged discriminatory act in court without exhausting
their Title VI administrative remedies with EPA.\225\ In other words,
Title VI does not require complainants to utilize the Federal
administrative process, so it would seem inconsistent to require
complainants to utilize state administrative processes. Nonetheless, as
discussed above, OCR strongly encourages all parties to seek early
resolution of their Title VI concerns.
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\225\ See Powell v. Ridge, 189 F.3d 387, 397-400 (3d Cir.),
cert. denied, 120 S. Ct. 579 (1999) (finding that citizens have a
private right of action under agency's regulations promulgated under
section 602 of Civil Rights Act of 1964).
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180-Day Time Period for Filing Complaints: Start of Clock
Commenters also voiced opinions on when the 180-day period should
begin to run and whether the Interim Guidance's position on that issue
was consistent with certain environmental permitting requirements.
Response: Title VI imposes obligations that are related to, but
separate from, those imposed by environmental law. As a result, the
180-day period for filing complaints under EPA's Title VI regulations
may be triggered by certain actions that do not necessarily match
similar aspects of
[[Page 39695]]
environmental laws (i.e., as explained below, Title VI's 180-day period
for filing a complaint begins when the permit is issued, but, for the
purposes of the environmental law, the issuance of the permit might not
have the same significance). Nonetheless, EPA expects that the two
approaches will be compatible because neither the filing of nor the
investigation of a complaint alleging a Title VI violation impacts the
effectiveness of a permit. A permit is not automatically stayed as a
result of the filing or acceptance for investigation of a Title VI
complaint.
Complaints alleging discriminatory effects arising out of a permit
should be filed within 180 calendar days of the issuance of the permit,
while complaints alleging public participation issues should be filed
within 180 calendar days of the alleged discriminatory act in the
public participation process.\226\ If a complaint is filed more than
180 calendar days after the alleged discriminatory act occurred, OCR
will generally reject it as untimely. In general, as discussed above,
OCR will dismiss complaints without prejudice \227\ where there are
ongoing administrative appeals or litigated issues in Federal or state
courts regarding the same permit.
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\226\ See Draft Revised Investigation Guidance, section III.B.1.
\227\ In other words, OCR may dismiss the complaint, but that
dismissal would not prohibit the complaint from re-filing its
complaint at a later date.
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180-Day Time Period for Filing Complaints: Duration, Waivers and Effect
on Permittees
A number of comments related to the length of the 180-day time
period for filing. Some felt that it is too long, while others thought
it is too short.
Response: DOJ is responsible for coordinating the implementation
and enforcement by Executive agencies of Title VI.\228\ In fulfilling
its responsibilities, DOJ published regulations entitled,
``Nondiscrimination in Federally Assisted Programs-Implementation of
Title VI of the Civil Rights Act of 1964.'' \229\ Among other things,
these regulations discuss the way in which investigations should be
conducted, and explain, regarding complaints, that: ``A complaint must
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official or his designee.'' \230\ This
regulation forms, in part, the basis for EPA's own regulations, which
require a complaint to be filed within 180 days. As mentioned above,
neither the filing nor the investigation of a complaint alleging a
Title VI violation impacts the effectiveness of a permit.
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\228\ See Executive Order 12250, 45 FR 72995 (1980) (section 1-
2).
\229\ See 28 CFR 42.101 et seq.
\230\ 28 CFR 42.107(b).
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Timing and Sequencing Issues
Issue: One commenter suggested that Title VI complaints should be
filed as outlined in 40 CFR part 122, which concerns the issuance of
permits under the National Pollutant Discharge Elimination System.
Several commenters expressed concern about when recipients would be
notified by EPA about complaints and how the time frame for voluntary
compliance works. Some commenters were particularly concerned about the
``initial finding of a disparate impact'' described in the Interim
Guidance.
Response: EPA's regulations, which are based on DOJ's model
regulations,\231\ are specifically intended to address the processing
of Title VI complaints. Therefore, OCR cannot adopt the procedures
described in other EPA regulations. The Interim Guidance did not
mention all of the time frames for conducting complaint investigations
and for attaining compliance set forth in EPA's Title VI regulations.
To avoid confusion, the Draft Revised Investigation Guidance addresses
all of the time frames specified in EPA's Title VI implementing
regulations.\232\ Accordingly, the Draft Revised Investigation Guidance
states that OCR will notify the recipient of a complaint filed against
it within five calendar days of OCR's receipt of the complaint.\233\
The 10-day time frame for a recipient to come into voluntary compliance
is also a requirement under EPA's Title VI regulations.\234\
Recognizing that elimination of adverse disparate impacts within 10
days may not be achievable, OCR may postpone proceedings to deny,
annul, suspend, or terminate EPA assistance, if the recipient has
demonstrated a good faith effort (e.g., signed a voluntary compliance
agreement) to come into compliance.
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\231\ 28 CFR 42.408 (DOJ Complaint Procedures; 40 CFR 7.120 (EPA
Complaint Investigation).
\232\ See Draft Revised Investigation Guidance, sections II &
III.
\233\ See id., section II.A.1; see also, 40 CFR 7.120(c).
\234\ See 40 CFR 7.115(e); Draft Revised Investigation Guidance,
section II.A.6.
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Concerning the comment about the initial finding of disparate
impact, the Draft Revised Investigation Guidance eliminates that part
of the investigation process. OCR suggested the initial finding
provision primarily to promote informal resolution before a preliminary
finding of noncompliance, but found that the provision created
confusion. Instead, EPA now encourages informal resolution throughout
the process, but particularly early in the process.
Issue: One commenter suggested that EPA impose a time limit for
conducting a disparate impact analysis.
Response: EPA's Title VI implementing regulations state that OCR
will provide its preliminary findings on a complaint within 180 days
from the start of the complaint investigation.\235\ As OCR gains more
experience with conducting the necessary analyses, we expect to reduce
the time that it takes.
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\235\ 40 CFR 7.115(c)(1).
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In addition, if the recipient takes steps to proactively address
the Title VI concerns raised in a complaint, such as performing an
analysis of the potential impacts, OCR may grant due weight to those
analyses and the investigative process could be completed more quickly.
The Draft Revised Investigation Guidance describes the factors OCR will
use to evaluate the appropriateness and validity of a recipient's
analysis and to assess the overall reasonableness of its conclusions.
\236\ The Draft Revised Investigation Guidance also explains that more
weight will be given to analyses that are relevant to the Title VI
concerns in the complaint under investigation and have sufficient
depth, breadth, completeness, and accuracy. Where a recipient or
complainant submits a relevant analysis, OCR may give the results of
that study due weight and rely on it in determining whether the
recipient is in compliance with EPA's Title VI regulations.
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\236\See Draft Revised Investigation Guidance, section V.B.
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Issue: Some commenters indicated that under EPA's Title VI
regulations, after the complainant files a valid Title VI claim, the
recipient should be given an opportunity to justify its decision and
thereafter the complainant may identify a less discriminatory
alternative.
Response: Recipients are afforded several specific opportunities to
provide information to OCR before and during an investigation. For
example, upon receiving notification of OCR's receipt of the complaint,
the recipient may make a written submission responding to, rebutting,
or denying the allegations in the complaint within 30 calendar
days.\237\ In any of the recipient's submissions, it may provide a
justification for its decision.
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\237\ 40 CFR 7.120(d)(1)(iii).
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Title VI burdens of proof in litigation inform EPA of what
information is
[[Page 39696]]
necessary to decide whether Title VI has been violated. In litigation,
a plaintiff (i.e., a person or persons who believe they have been
discriminated against) must show that an alleged act has a disparate
impact on an identifiable population defined by race, color, or
national origin.\238\ If the disparate impact is shown, the defendants
(i.e., recipients) must prove that the activity is justified by a
substantial legitimate justification.\239\ If the recipient's
justification meets the test, the plaintiff may show that there is a
less discriminatory alternative that meets the same objective.\240\ The
recipient may rebut this by showing that the alternatives do not meet
its legitimate objectives.\241\ If the recipient cannot rebut the
plaintiff's showing, then there is a violation of Title VI.\242\ OCR
intends to apply a similar approach to its investigations.
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\238\ See Coalition of Concerned Citizens Against I-670 v.
Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984).
\239\ Damian, 608 F. Supp. at 127.
\240\ Id.
\241\ Id.
\242\ Id.; see also Sandoval v. L.N. Hagan, 7 F. Supp. 2d 1234,
1298 (M.D. Ala. 1998) (plaintiffs prevailed in proving a Title VI
violation by offering an effective less discriminatory alternative).
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The investigation of Title VI administrative complaints by OCR does
not involve an adversarial process, as in litigation, between the
complainant and the recipient. Rather, it should be viewed as EPA
investigating allegations that EPA financial assistance is being used
improperly. Consequently, the complainants do not have the burden of
proving that their allegations are true and are not obligated to offer
less discriminatory alternatives. Instead, EPA has the responsibility
to determine whether a violation exists and, where appropriate, to
uncover less discriminatory alternatives. Nonetheless, EPA encourages
complainants to provide whatever relevant information they may have.
Filing of Complaints Issues
Issue: Some comments involved the question of who may file a Title
VI administrative complaint.
Response: It is the general policy of OCR to investigate all
administrative complaints concerning the conduct of a recipient of EPA
financial assistance \243\ that satisfy the jurisdictional criteria in
EPA's implementing regulations.\244\ EPA's regulations provide that
complaints may only be filed by:
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\243\ See 40 CFR 7.15.
\244\ See 40 CFR 7.120.
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(a) A person who was allegedly discriminated against in violation
of EPA's Title VI regulations;
(b) A person who is a member of a specific class of people
allegedly discriminated against in violation of EPA's Title VI
regulations; or
(c) A party that is authorized to represent a person or specific
class of people allegedly discriminated against in violation of EPA's
Title VI.
In some cases, a person or a class of people allegedly
discriminated against may select a representative from another
geographic area. The regulations allow complainants to take such
action.\245\
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\245\ See Draft Revised Investigation Guidance, section III.A.
(describing criteria for accepting or rejecting complaints).
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Issue: One commenter stated that permitees should not be allowed to
continue construction of a new facility while a complaint is being
investigated.
Response: EPA's Title VI regulations do not provide for staying a
permit during the pendency of an investigation. If the permit has been
validly issued under the recipient's environmental program, then the
facility may begin permitted activities. However, should discriminatory
effects be found as a result of a Title VI investigation, mitigation
measures by the recipient may be necessary. Because, as the Draft
Revised Investigation Guidance states, EPA believes it will be a rare
situation where the permit that triggered the complaint is the sole
reason a discriminatory effect exists, denial of the permit at issue
will not necessarily be an appropriate solution.\246\ Often, Title VI
concerns are raised where a number of sources are contributing to the
adverse effects that communities believe they are suffering. Efforts
that focus on all contributions to the disparate impact, not just the
permit at issue, will likely yield the most effective long-term
solutions.
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\246\ Id., sections I.C. and IV.B.
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Informal Resolution
One commenter argued that the Interim Guidance gave EPA too much
flexibility with regard to the use of informal resolution.
Response: EPA's Title VI regulations call for OCR to pursue
informal resolution of administrative complaints wherever
practicable.\247\ Therefore, OCR will endeavor to facilitate the use of
informal resolution to resolve pending Title VI complaints and to
reduce the likelihood of future Title VI complaints. OCR intends to
encourage informal resolution particularly in the notification of
receipt of a complaint and again with acceptance of a complaint for
investigation. Informal resolution may follow either of the two
approaches discussed below.\248\
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\247\ 40 CFR 7.120(d)(2).
\248\ See Draft Revised Investigation Guidance, section IV.A.
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The first approach would be to encourage recipients and
complainants to try to resolve the issues between them. If the informal
resolution results in withdrawal of the Title VI administrative
complaint, EPA will dismiss the complaint, notify the recipients and
complainants, and close the file. To the extent resources are
available, EPA expects to provide support for such informal resolution
efforts. The second approach would be for OCR and the recipient to
reach an agreement on relief. In either case, other parties may be
involved depending upon the facts and circumstances of the complaint.
In appropriate situations, EPA expects the use of alternative
dispute resolution (ADR) techniques to informally resolve the
complaint. ADR includes a variety of approaches including the use of a
third party neutral acting as a mediator or the use of a structured
process through which the parties can participate in shared learning
and creative problem solving to reach a consensus. The recipient, as a
result of its efforts to informally resolve a Title VI complaint with
complainants or with OCR, may elect to submit a plan for mitigating a
disparate impact.\249\
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\249\ See id., section IV.B.
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OCR will discuss offers by recipients to reach informal resolution
at any point during the administrative process before filing a formal
finding of noncompliance. However, it is OCR's responsibility to ensure
nondiscrimination in the programs or activities of recipients to whom
EPA provides financial assistance. Therefore, an investigation may be
needed to determine the appropriate relief and/or corrective action.
Suspension of Federal Assistance
Some commenters asked EPA to explain EPA's authority to terminate
funding and to specify which Federal funds could be affected by a
finding of noncompliance with Title VI and how that process would
proceed.
Response: Whenever possible, OCR will attempt to resolve complaints
informally, as described above.\250\ If this fails and OCR makes a
formal determination of noncompliance and the recipient does not
voluntarily comply, OCR must start proceedings to deny, annul, suspend,
or terminate EPA assistance,\251\ or ``use any other means
[[Page 39697]]
authorized by law to get compliance, including a referral of the matter
to the Department of Justice.'' \252\
Even if OCR decides to deny, annul, suspend, or terminate
assistance, the recipient is entitled to a hearing on this decision
before an EPA ALJ.\253\ If the ALJ's determination is not favorable to
the recipient, the recipient may appeal the ALJ's determination to the
Administrator.\254\ Thus, OCR's complaint resolution process is not one
that immediately contemplates suspending EPA assistance, but one that
resorts to suspending assistance when informal resolution and voluntary
compliance efforts are not possible or have failed.
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\250\ 40 CFR 7.120(d)(2). See Draft Revised Investigation
Guidance, section IV.
\251\ 40 CFR 7.115(e), 7.130(b).
\252\ 40 CFR 7.130(a).
\253\ 40 CFR 7.130(b)(2).
\254\ 40 CFR 7.130(b)(3)(i).
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In the event OCR attempts to deny, annul, suspend, or terminate
assistance, EPA's Title VI implementing regulations only concern EPA
assistance.\255\ The regulations do not give EPA authority to pursue
denying, annulling, suspending, or terminating Federal financial
assistance from sources outside EPA. Accordingly, both the Interim
Guidance and the Draft Revised Investigation Guidance refer only to
initiating procedures to deny, annul, suspend, or terminate EPA
assistance.\256\
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\255\ 40 CFR 7.130(b) (``Procedure to deny, annual, suspend or
terminate EPA assistance.'').
\256\ See Interim Guidance at 3; Draft Revised Investigation
Guidance, section II.A.7.
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Title VI prohibits discrimination in ``any program or activity
receiving Federal financial assistance.'' \257\ The Civil Rights
Restoration Act of 1987 \258\ amended Title VI and defined a
``program'' or ``activity'' to include, among other things, ``all of
the operations of * * * a department, agency, special purpose district,
or other instrumentality of a State or of a local government * * * any
part of which is extended Federal financial assistance.'' \259\
Therefore, unless expressly exempted from Title VI by Federal statute,
all programs and activities of a department or agency that receives EPA
funds are subject to Title VI, including those programs and activities
that are not EPA-funded. For example, the issuance of permits by EPA
recipients under solid waste programs administered pursuant to Subtitle
D of the Resource Conservation and Recovery Act, which historically
have not been grant-funded by EPA, or the actions they take under
programs that do not derive their authority from EPA statutes (e.g.,
state environmental assessment requirements), are part of a program or
activity covered by EPA's regulations if the recipient receives any
funding from EPA.
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\257\ 42 U.S.C. 2000d.
\258\ Public Law 100-259, 102 Stat. 28 (1988).
\259\ 42 U.S.C. 2000d-4a.
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EPA's regulations also limit the scope of the decision to deny,
annul, suspend, or terminate assistance to ``the particular applicant
or recipient who was found to have discriminated, and shall be limited
in its effect to the particular program or the part of it in which the
discrimination was found.'' \260\
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\260\ 40 CFR 7.130(b)(4).
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EPA has some discretion about how to enforce Title VI and EPA's
implementing regulations, but not about whether to enforce. In July
1994, the Attorney General issued a memorandum to the heads of all
Federal agencies with Title VI responsibilities stating that
``[e]nforcement of the disparate impact provisions is an essential
component of an effective civil rights compliance program.'' \261\ The
Attorney General directed the head of each Federal agency ``to make
certain that Title VI is not violated, [and] ensure that the disparate
impact provisions in [the Title VI] regulations are fully utilized.''
\262\
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\261\ See Memorandum from Attorney General supra note 7, at 1.
\262\ Id.
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Permit Renewals Issues
Issue: Some commenters asked whether EPA's approach to renewals is
consistent with environmental permitting requirements.
Response: Although there may be some overlapping of legal
principles and requirements, Title VI and EPA's Title VI regulations
impose separate requirements on recipients from those of environmental
statutes and their implementing regulations. Even if environmental laws
mandate different treatment for new permits, permit renewals, and
permit modifications, EPA's Title VI regulations do not require
different review of these actions.
Under the Draft Revised Investigation Guidance, renewals and
modifications, like new permits, would be available to form the basis
for an initial investigation. Such an approach will assist recipients
in achieving an equitable distribution of their efforts to meet Title
VI's requirements. In addition, the inclusion of renewals and
modifications improves the ability to consider existing adverse
disparate impacts. However, where OCR is not likely to initiate an
investigation where: (1) A complaint alleges discriminatory effects
from emissions, including cumulative emissions, and the permit action
that triggered the complaint significantly decreases overall emissions
\263\ at the facility or (2) where a complaint alleges discriminatory
effects from emissions, including cumulative emissions, of pollutants
or stressors of concern (pollutants of concern) named in the complaint,
and the permit action that triggered the complaint significantly
decreases all named pollutants of concern or all the pollutants OCR
reasonably infers are the potential source of the alleged impact.
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\263\ Assessing a significant overall decrease would entail
taking into account factors such as total quantity and relative
toxicity of the emissions reductions.
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Regardless of the type of permit involved, if a complaint is filed
with OCR alleging that a recipient violated Title VI or EPA's
regulations, OCR's decision to accept or reject the complaint would be
based on the standard jurisdictional criteria provided in EPA's Title
VI regulations.\264\ If a complaint is accepted, OCR expects to
evaluate the impact of the permitting action. Permitting actions that
reduce adverse impacts from the source are not likely to form the basis
for a finding of noncompliance with Title VI. In addition,
modifications, such as a facility name change or a change in a mailing
address, that do not involve actions related to the stressors \265\
identified in the complaint generally will not form the basis for a
finding of noncompliance and will likely be dismissed.\266\
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\264\ See 40 CFR 7.120 (stating the criteria for accepting a
complaint); Draft Revised Investigation Guidance, sections III.A.
and VI.B.1.a.
\265\ See Draft Revised Investigation Guidance, Glossary.
\266\ See id., section VI.B.1.a.
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Issue: Other commenters argued that the application of Title VI to
renewals should consider whether the demographics of the area in
question have changed.
Response: EPA's Title VI regulations direct OCR to investigate
actions by recipients allegedly involving intentional discrimination or
resulting in discriminatory impacts, and to determine whether the
actions violate the regulations. In the permitting context, OCR must
analyze a Title VI complaint based on the facts and circumstances
existing at the time the permitting decision at issue was made because
those are the conditions that the complaint concerns. Therefore, the
demographic composition of the area at the time that the permit was
initially issued, perhaps a decade or more ago, may or may not be
relevant for OCR's review of an allegation that discriminatory effects
currently exist.
[[Page 39698]]
Issue: A commenter suggested that in order to avoid conducting a
disparate impact analysis for each permit renewal for facilities with
multiple permits, an initial disparate impact analysis covering all
permits for the facility, not merely the permit up for renewal, should
be conducted. Assuming any Title VI concerns were resolved, further
claims regarding renewals related to permits at the facility would be
dismissed.
Response: The Draft Revised Investigation Guidance indicates that
EPA intends, in some cases, to consider the cumulative impacts of
pollution from a wide range of sources. OCR may investigate cases in
which the permitted activity is one of several activities, which
together present a cumulative impact.\267\ This may include evaluating
multiple activities at a single facility. In some rare instances, EPA
may need to determine whether the impacts of a single permit, standing
alone, may be considered to support a disparate impact claim. EPA
intends to let the circumstances of each complaint dictate which
approach is appropriate.
---------------------------------------------------------------------------
\267\ See id., section VI.B.1.a.
---------------------------------------------------------------------------
Furthermore, the Draft Revised Investigation Guidance and the Draft
Recipient Guidance also encourage recipients to identify geographic
areas where adverse disparate impacts may exist and to enter into
agreements (area-specific agreements) with the affected communities and
stakeholders to reduce pollution impacts in those geographic areas over
time.\268\ The results of such efforts may be granted due weight in
appropriate circumstances \269\ and reduce the likelihood that
additional complaints would be filed in those areas. Moreover, if OCR
had previously determined that actions taken pursuant to an area-wide
agreement would eliminate discriminatory effects, OCR would generally
rely upon that earlier finding and dismiss later-filed allegations
relating to permit actions covered by the agreement.
---------------------------------------------------------------------------
\268\ Id., section V.B.2.; Draft Recipient Guidance sections
II.A.2. and 3.
\269\ See Draft Revised Investigation Guidance, section V.B.2.
---------------------------------------------------------------------------
Takings
Some commenters raised questions about ``takings'' of property
without compensation and opportunities for permittees to achieve
compliance.
Response: As a general rule, permits are not compensable property
rights. They are treated as conferring privileges rather than rights,
because they may be revocable at the will of the government, they are
generally nontransferable, and they are often issued for a limited
term. On the other hand, permits sometimes are treated as property for
due process purposes, requiring notice and hearing before they can be
revoked.
As the Draft Revised Investigation Guidance states when discussing
measures that might be required as a result of a finding of
noncompliance with Title VI, EPA believes it will be a rare situation
where the permit that triggered the complaint is the sole reason a
discriminatory effect exists. Therefore, denial of the permit at issue
will not necessarily be an appropriate solution. Also, in order to
establish a compensable taking, the governmental action generally must
deny all economically viable use of the property in question. It is
highly unlikely that a permit modification would deny all economically
viable use of the property.
As part of a voluntary compliance agreement, recipients may agree
to mitigate the adverse impacts through permit modifications. If
informal resolution and attempts at reaching voluntary compliance fail,
the primary authority for an administrative remedy in EPA's Title VI
implementing regulations and corresponding provisions in the Draft
Revised Investigation Guidance concerns the denial, annulment,
suspension, or termination of EPA assistance.\270\ Because this remedy
would be imposed on a recipient of EPA assistance, the permittee would
not be directly affected. Clearly, the recipient's programs and
activities may relate to the permittee, but even if a recipient is
found to be in violation of EPA's Title VI regulations, EPA's primary
authority for an administrative remedy is directed toward the
recipient. The regulations do not require EPA to seek a denial or
revocation of the permittee's permit.
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\270\ 40 CFR 7.130(b); Draft Revised Investigation Guidance,
section II.A.6.
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OCR may also explore other solutions authorized by law, such as
referring a matter to DOJ for enforcement in court.\271\ If a court
ordered remedy involved the initiation of a permitting action, EPA
expects that the recipient would follow the procedures outlined in the
relevant environmental law, thereby providing sufficient due process.
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\271\ 40 CFR 7.130(a); Draft Revised Investigation Guidance,
section II.A.6.
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Other Issues
Issue: One commenter requested that EPA develop a Title VI
complaint process flowchart. Another commenter requested clarification
as to who would be responsible for implementing the Interim Guidance.
Response: A flowchart that outlines the steps in the process
described by EPA's Title VI regulations has been included as an
appendix to the Draft Revised Investigation Guidance.
OCR has the responsibility within EPA to process and review Title
VI administrative complaints, and both the Interim Guidance and the
Draft Revised Investigation Guidance are mainly directed at EPA staff
in that office. However, OCR typically involves staff with appropriate
expertise from other EPA offices and regions to assist in its
investigations. The guidance also provides direction to these staff
persons as they assist OCR in the investigation.
Impacts and the Disparate Impact Analysis
Substantial Impairment
One commenter requested clarification as to what constitutes a
``significant'' disparate impact, citing EPA's regulations that require
a ``substantial impairment'' of program objectives to establish a
disparate impact.
Response: OCR has provided more detail and clarity in the Draft
Revised Investigation Guidance about the process for determining
whether an adverse disparate impact exists.\272\ However, given the
infinite number of possible permutations of facts, allegations, and
circumstances, defining an across-the-board standard of what level of
harm or disparity constitutes ``significant'' is infeasible. Instead,
the Draft Revised Investigation Guidance explains more clearly how OCR
will determine whether it exists. The Draft Revised Investigation
Guidance describes how EPA will use environmental statutes,
regulations, policy, and science as measures for determining thresholds
for what is adverse.\273\
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\272\ See Draft Revised Investigation Guidance, section VI.
\273\ Id., section VI.B.4.
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EPA's Title VI regulations include a variety of prohibitions, only
one of which uses the term ``substantial impairment.'' \274\ For
example, the regulations prohibit recipients from using ``criteria or
methods of administering its programs which have the effect of
subjecting individuals to discrimination because of their race, color,
[or] national origin.'' \275\ It is this
[[Page 39699]]
discriminatory effects regulation that is the focus of the Interim
Guidance and the Draft Revised Investigation Guidance.
Scope and Extent of Adverse Impact Analysis Issues
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\274\ 40 CFR 7.35(b) (``A recipient shall not use criteria or
methods of administering its programs which * * * have the effect of
defeating or substantially impairing accomplishment of the
objectives of the program with respect to individuals of a
particular race, color, [or] national origin.'' (emphasis added).
\275\ Id.
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Issue: Commenters were divided regarding both the degree to which
adverse impacts must be ``significant'' before they can be considered
under the Interim Guidance and whether the risk of adverse health
impacts should be considered actionable.
Response: To determine whether the impacts alleged in the complaint
are sufficiently ``adverse'' to be cognizable under Title VI, OCR
expects to focus its efforts on addressing adverse impacts that are
``significant'' rather than on those that may be considered
inconsequential. The Draft Revised Investigation Guidance provides more
specificity about what constitutes a ``significant'' impact. Depending
upon the facts and circumstances of the complaint, OCR will apply
relevant tests to determine whether the alleged impact is
significant.\276\ In fact, the Draft Revised Investigation Guidance
specifically includes consideration of health impacts in terms of
risk.\277\
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\276\ Draft Revised Investigation Guidance, section VI.B.4.
\277\ See Draft Revised Investigation Guidance, section VI.B.3.
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Issue: One commenter said that any guidance that is developed
regarding disparate impact should be subjected to a peer reviewed
process.
Response: As part of its identification and development of methods
for conducting impact assessments, OCR submitted several example
assessment tools for review by the EPA Science Advisory Board.\278\
These included approaches concerning the estimation of the magnitude
and distribution of impacts and the identification of affected
populations.
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\278\ The findings were presented in the December 1998 report,
An SAB Report: Review of Disproportionate Impact Methodologies; A
Review by the Integrated Human Exposure Committee (IHEC) of the
Science Advisory Board (SAB). The report is avaialble at the Office
of Civil Rights Web site at: http://www.epa.gov/civilrights/investig.htm.
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Identifying the Affected Population
Many commenters asked EPA to provide more guidance related to
identifying the affected population.
Response: The Draft Revised Investigation Guidance provides
significantly more information about the process proposed to identify
and determine the characteristics of the affected population than the
Interim Guidance provided.\279\ The affected population, as defined in
the Glossary, is the population that is determined to bear an adverse
impact from the source(s) at issue. In section VI.B., and especially in
subsection 5, of the Draft Revised Investigation Guidance, OCR
describes the analysis it expects to use to define the affected
population in investigations. Section VI also describes the process of
conducting an analysis to determine whether a disparity exists between
the affected population and an appropriate comparison population, and
discusses comparison methods and criteria used in assessing the
significance of any disparities identified.
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\279\ See Draft Revised Investigation Guidance, section VI.B.5.
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Determining the Demographics of Populations
Some comments concerned the manner in which EPA would determine the
demographics of certain populations.
Response: Title VI and EPA's implementing regulations prohibit
discrimination on the basis of race, color, or national origin. Racial
classifications described in the regulations include: (1) American
Indian or Alaskan native; (2) Asian or Pacific Islander; (3) Black and
not of Hispanic origin; (4) Hispanic; and (5) White, not of Hispanic
origin.\280\ Additional subcategories based on national origin or
primary language spoken may be used when appropriate.\281\
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\280\ 40 CFR 7.25.
\281\ Id. at n.1.
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OCR intends to use the most accurate data readily available when
determining the characteristics of the affected and comparison
populations. In most cases, residential census data are expected to be
the most accurate and relevant available demographic data, but other
data sources will be used as needed. Generally, OCR expects to use
residential census data in combination with geographic information
systems and mathematical models to identify and characterize affected
populations.\282\
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\282\ See Draft Revised Investigation Guidance, section VI.B.5.
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Cumulative Impacts
EPA received a number of comments concerning the role of cumulative
impacts in the Interim Guidance. Some expressed support for considering
cumulative impacts in determining whether an adverse disparate impact
exists and others requested additional information. Some opposed
considering cumulative impacts because they were concerned about how
cumulative impacts could be quantified.
Response: The Draft Revised Investigation Guidance provides more
clarity about the process of identifying the scope of an adverse
disparate impact analysis that OCR may conduct as part of an
investigation. Rather than attempting to summarize that lengthy process
here, readers should refer to the Draft Revised Investigation Guidance
for an explanation of how OCR expects to evaluate allegations
concerning cumulative impacts.\283\
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\283\ See Draft Revised Investigation Guidance, sections VI.B.2.
and 3.
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Commenter's Suggested Alternative Approach to Adverse Disparate Impact
Analysis
One commenter provided EPA with an alternative approach to simplify
OCR's analysis of Title VI complaints. The primary elements of the
proposal include: (1) Defining the affected area as a circle of radius
one-half to one mile from the facility; (2) assessing the public health
status of the affected population based on mortality, cancer, infant
mortality and low birth weight rates; and (3) determining the health
rate to be substandard when it deviates by 10 to 20 percent from the
``standard'' (comparison population) rate. Permits to build or operate
a new facility in any area with substandard health rates would be
prohibited. The commenter asks whether this proposal could be adopted
by OCR.
Response: Both Title VI and EPA's implementing regulations prohibit
discrimination on the basis of race, color, or national origin in the
programs and activities of EPA financial assistance recipients. As a
result, a finding of non-compliance with the statute or regulations
requires a finding that the programs or activities of a recipient
involved intentional discrimination or caused a discriminatory effect.
The proposal does not appear to require any link between the
adverse health effects and the programs or activities of a recipient.
In addition, it does not consider any disparity on the basis of race,
color, or national origin. While the proposal may warrant consideration
as a way of identifying public health ``hot spots,'' it would not be an
appropriate basis for OCR to make a finding of non-compliance with
Title VI or EPA's implementing regulations.
[[Page 39700]]
Clarifications Regarding Disparity of Impact
A number of commenters requested additional details regarding the
disparate impact analysis. For instance, commenters requested that EPA
provide additional details regarding the statistical analysis that will
be conducted, the backgrounds of the experts that will be conducting
the analysis, and what comparisons would be appropriate within the
affected population.
Response: OCR provided more specificity about the disparate impact
analysis in the Draft Revised Investigation Guidance, including
additional details about what constitutes disparity and options for
selecting comparison populations.\284\ OCR intends to select an
appropriate statistical or mathematical analysis based upon various
factors, including the allegations and available data. That analysis
will be performed or reviewed by those with the relevant professional
training and expertise. The Draft Revised Investigation Guidance is not
intended to comprehensively address every scenario that may arise in
the interaction between Title VI, EPA's Title VI regulations, and
environmental permitting. Given the infinite number of possible
permutations of facts, allegations, and circumstances, such an approach
is infeasible. Instead, the Draft Revised Investigation Guidance
provides a framework explaining how EPA intends to implement its
responsibilities under Title VI as a general matter. OCR then expects
to apply the guidance's framework according to the specific facts and
circumstances of each complaint.
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\284\ Draft Revised Investigation Guidance sections VI.B.5. and
6.
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In terms of the appropriate comparison populations, the zoning or
land use designation of an area has been offered as a possible basis on
which to compare impacts and demographics. OCR does not expect to use
those factors when evaluating an affected population against a
comparison population. Consideration of zoning would place an
inappropriate focus on the siting of facilities. The Interim Guidance
and the Draft Revised Investigation Guidance focus on permitting. The
impacts addressed by the guidance documents do not necessarily stay
within areas that are zoned ``industrial''; they may affect
``residential'' areas, ``commercial'' areas, and areas with other
designations. In addition, many impacts are felt in areas designated
for ``mixed-use,'' but that fact alone should not lead to reduced
protections for the local residents. Therefore, an arbitrary comparison
of populations with similar zoning would be inappropriate, as well as
impractical.
Resolving Complaints and Justification
Remedial Measures/Mitigation
Issue: Several commenters requested clarification on the process of
mitigation as described in the Interim Guidance.
Response: EPA's Title VI regulations call for OCR to pursue
informal resolution of administrative complaints wherever
practicable.\285\ The Agency expects that measures that reduce or
eliminate alleged disparate impacts will be an important focus of the
informal resolution process. Section IV of the Draft Revised
Investigation Guidance contains a more detailed discussion of such
measures, drawn heavily from the Title VI Implementation Advisory
Committee report,\286\ than the Interim Guidance. Moreover, the Draft
Recipient Guidance also discusses measures to reduce adverse disparate
impacts in section II.B.6.
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\285\ 40 CFR 7.120(d)(2).
\286\ See Report of the Title VI Implementation Advisory
Committee: Next Steps for EPA, State, and Local Environmental
Justice Programs, at 82-90 and appendix D (April 1999).
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Often, Title VI concerns are raised where a number of sources are
contributing to the adverse effects communities believe they are
suffering. For those communities, filing a Title VI complaint about a
permit for a new facility or about the most recent modification to an
existing one, is a way to focus attention on the cumulative impacts of
a number of the recipient's permitting decisions. As the Draft Revised
Investigation Guidance states, EPA believes it will be a rare situation
where the permit that triggered the complaint is the sole reason a
discriminatory effect exists; therefore, denial of the permit at issue
will not necessarily be an appropriate solution. Efforts that focus on
all contributions to the adverse disparate impact, not just the permit
at issue, will likely yield the most effective long-term
solutions.\287\
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\287\ See Draft Revised Investigation Guidance, sections I.C.
and IV.B.
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For example, the Draft Revised Investigation Guidance and the Draft
Recipient Guidance encourage recipients to identify geographic areas
where adverse disparate impacts may exist and to enter into enforceable
agreements (area-specific agreements) with the affected communities and
stakeholders to reduce pollution impacts in those geographic areas over
time.\288\
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\288\ Draft Revised Investigation Guidance, section V.B.2.;
Draft Recipient Guidance, section II.A.2.
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Efforts to reduce impacts could include measures that are narrowly
tailored toward contributing sources, including the permit at issue,
using the recipient's existing permitting authorities. Such measures
include changes in policies or procedures, additional pollution
control, pollution prevention, offsets; and emergency planning and
response. More broadly focused efforts might deal with the combined
impacts of several contributing sources, taking into account both the
approximate contributions and the degree to which the sources may be
covered by various authorities available to the recipient.\289\
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\289\ Draft Revised Investigation Guidance, section IV.
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Issue: Several commenters questioned the legal basis for requiring
mitigation.
Response: As mentioned above, EPA's Title VI regulations call for
OCR to pursue the informal resolution of administrative complaints
wherever practicable.\290\ The term ``informal resolution'' refers to
any settlement reached by the parties before a finding of noncompliance
is issued. OCR expects to encourage measures to reduce and eliminate
impacts in the course of achieving informal resolution.\291\ EPA hopes
that the parties will be able to work together at an early stage
because they will have more flexibility in this informal context to
develop innovative solutions than later when remedial measures are
required after a finding of noncompliance has been made. Measures
developed by the recipient, local community, and other interested
parties are likely to be the most direct way to resolve potential Title
VI concerns. Both the Draft Revised Investigation Guidance and the
Draft Recipient Guidance discuss measures to reduce or eliminate
impacts.\292\
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\290\ See 40 CFR 7.120(d)(2).
\291\ See Draft Revised Investigation Guidance, section IV;
Draft Recipient Guidance, section II.B.6.
\292\ Id.
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If OCR makes a finding of noncompliance with EPA's Title VI
regulations, two potential remedies exist in EPA's administrative
process--voluntary compliance or fund termination. Another option for
EPA to ensure compliance is referring the matter to DOJ for
litigation.\293\ Settlement after a formal determination of
noncompliance is called ``voluntary compliance.'' \294\ Measures to
reduce or eliminate impacts will be included as conditions in a
voluntary compliance agreement. Recipients can either agree to the
voluntary compliance conditions or risk losing EPA financial
assistance.
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\293\ 40 CFR 7.130(a).
\294\ 40 CFR 7.115(e) (indicating that recipient may voluntarily
comply after formal determination of noncompliance).
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Justification Issues
Issue: Some commenters requested that EPA provide more detail as to
what would constitute an adequate
[[Page 39701]]
justification and a less discriminatory alternative.
Response: The Draft Revised Investigation Guidance clarifies and
provides more detail about justification and less discriminatory
alternatives.\295\ Determining what constitutes a legitimate
justification will necessarily turn on the facts in the case at hand.
Generally, the recipient would attempt to show that the challenged
activity is reasonably necessary to meet a goal that is legitimate,
important, and integral to the recipient's institutional mission.
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\295\ See Draft Revised Investigation Guidance, section VII.A.
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Because investigations conducted under the Draft Revised
Investigation Guidance are about permitting decisions by environmental
agencies, OCR expects to consider provision of public health or
environmental benefits (e.g., waste water treatment plant) to the
affected population to be an acceptable justification because such
benefits are generally legitimate, important, and integral to the
recipient's mission. The Draft Revised Investigation Guidance indicates
that OCR will likely consider broader interests, such as economic
development, from the permitting action to be an acceptable
justification, if the benefits are delivered directly to the affected
population and if the broader interest is legitimate, important, and
integral to the recipient's mission. Also, in its evaluation of the
offered justification, OCR will generally consider not only the
recipient's perspective, but the views of the affected community in its
assessment of whether the permitted facility, in fact, will provide
direct, economic benefits to the community.
A justification generally will not be accepted if it is shown that
a less discriminatory alternative exists. A less discriminatory
alternative is a comparably effective practice that causes less of a
disparate impact than the challenged practice.\296\ Mitigation measures
including, in some cases, additional permit conditions that would
lessen or eliminate the demonstrated adverse disparate impacts, could
be part of a less discriminatory alternative. Pollution prevention may
be either used by the recipient as a mitigation measure, or raised by
EPA or complainants as a less discriminatory alternative. OCR will
likely consider cost and technical feasibility in its assessment of the
practicability potential alternatives.
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\296\ See Elston v. Talladega County Bd. of Educ., 997 F.2d
1394, 1407 (11th Cir. 1993), citing Georgia State Conference of
Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).
---------------------------------------------------------------------------
Issue: Other commenters asserted that a recipient should be allowed
to justify an action before undergoing a mitigation analysis.
Response: The Interim Guidance did not require the creation of
mitigation plans before a finding. It merely suggested that recipients
could consider establishing a plan to reduce the likelihood of a
finding of a Title VI violation. The Draft Revised Investigation
Guidance clarifies the process.\297\ Recipients are expected to have an
opportunity to propose mitigation measures to address the problem, but
those measures would not be required unless a finding of violation
occurs. In that case, OCR would describe the measures that the
recipient should take to come into voluntary compliance.
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\297\ See Draft Revised Investigation Guidance, section IV.
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EPA's Title VI regulations provide recipients with several
opportunities to submit information.\298\ Nothing precludes recipients
from including information about justification or mitigation measures
in their written submissions. The recipient may offer a justification
before mitigation measures are considered. However, the justification
would not be considered acceptable if a less discriminatory alternative
exists.
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\298\ See Draft Revised Investigation Guidance, sections II.B.
and V.A.
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Issue: Other comments concerned EPA's role in identifying less
discriminatory alternatives and approving justifications.
Response: EPA must evaluate the sufficiency of proffered
justifications, and the existence and validity of less discriminatory
alternatives, because EPA determines whether a violation of EPA's Title
VI regulations has occurred.
Nonetheless, EPA may consult with complainants and other parties,
as appropriate.
Dated: June 15, 2000.
Ann E. Goode,
Director, Office of Civil Rights.
[FR Doc. 00-15673 Filed 6-26-00; 8:45 am]
BILLING CODE 6560-50-P