[Federal Register Volume 71, Number 54 (Tuesday, March 21, 2006)]
[Notices]
[Pages 14207-14217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2691]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8007-3]
Title VI Public Involvement Guidance for EPA Assistance
Recipients Administering Environmental Permitting Programs (Recipient
Guidance)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Guidance.
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SUMMARY: EPA's Office of Civil Rights is publishing the Title VI Public
Involvement Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Recipient Guidance) as final. This
guidance revises the previous Draft Final Title VI Public Involvement
Guidance for EPA Assistance Recipients Administering Environmental
Permitting Programs (Draft Final Recipient Guidance) issued for public
comment in March 2005. The revisions made in this document reflect and
include public involvement considerations suggested in written comments
the Office of Civil Rights (OCR) received on the Draft Final Recipient
Guidance. This guidance has been developed for recipients of EPA
assistance that implement environmental permitting programs. It
discusses various approaches and suggests tools recipients may use to
help enhance the public involvement aspects of their current permitting
programs and address potential issues related to Title VI of the Civil
Rights Act of 1964 (Title VI) and EPA's regulations implementing Title
VI.
DATES: Effective Date: March 21, 2006.
ADDRESSES: Copies of the written comments received on the Draft Final
Recipient Guidance as well as EPA's responses to the written comments
may be obtained by contacting the Office of Civil Rights at: U.S.
Environmental Protection Agency, Office of Civil Rights (1201A), 1200
Pennsylvania Avenue, NW., Washington, DC 20460-1000.
FOR FURTHER INFORMATION CONTACT: Karen Randolph, U.S. Environmental
Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania
Avenue, NW., Washington, DC 20460-1000, telephone (202) 343-9679.
SUPPLEMENTARY INFORMATION:
Table of Contents
A. Preamble
B. Review of Public Comments and Revisions to the Draft Guidance
C. Title VI Public Involvement Guidance for EPA Assistance
Recipients Administering Environmental Permitting Programs
(Recipient Guidance)
A. Preamble
Today's Federal Register document contains the guidance document
entitled, the Title VI Public Involvement Guidance for EPA Assistance
Recipients Administering Environmental Permitting Programs (Recipient
Guidance). It offers recipients of U.S. Environmental Protection Agency
assistance, suggestions on public involvement approaches they may use
to help enhance their current environmental permitting programs to
better address potential issues related to Title VI of the Civil Rights
Act of 1964, as amended, (Title VI) and EPA's Title VI implementing
regulations.\1\ The Recipient Guidance addresses and incorporates
public involvement suggestions EPA's Office of Civil Rights (OCR)
received on the Draft Final Title VI Public Involvement Guidance for
EPA Assistance Recipients Administering Environmental Permitting
Programs (Draft Final Recipient Guidance). This Recipient Guidance will
replace the Draft Final Recipient Guidance which was issued in March
2005.\2\ Much of the
[[Page 14208]]
information in this Recipient Guidance is based on EPA's commitment to
early and meaningful public involvement throughout the entire
permitting process.
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\1\ Title VI of the Civil Rights Act of 1964, Public Law 88-352,
78 Stat. 252 (codified as amended at 42 U.S.C. 2000d to 2000-7); 40
CFR part 7.
\2\ 70 FR 10625 (2005).
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The Draft Final Recipient Guidance was developed to revise the
Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Draft Recipient Guidance) published
in June 2000. Prior to issuing the Draft Recipient Guidance, EPA
considered public input, the work of the Title VI Implementation
Advisory Committee of EPA's National Advisory Council for Environmental
Policy and Technology (NACEPT) \3\, the work of the Environmental
Council of States (ECOS) \4\, particularly its October 9, 1998 draft
Proposed Elements of State Environmental Justice Programs, and input
from available state environmental justice programs. The Draft
Recipient Guidance discussed approaches to complaints alleging
discrimination during the public participation portion of the
permitting process, as well as complaints alleging discriminatory human
health effects, environmental effects and adverse disparate impacts
resulting from the issuance of permits. The Draft Recipient Guidance
also discussed how these approaches could be used to address concerns
before the filing of complaints.
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\3\ NACEPT consists of a representative cross-section of EPA's
partners and principle constituents who provide advice and
recommendations to the Administrator of EPA on a broad range of
environmental policy, technology, and management issues regarding
new strategies that the Agency is developing. The Council is a
proactive, strategic panel of experts that identifies emerging
challenges facing EPA and responds to specific charges requested by
the Administrator and the program office managers.
\4\ The mission of ECOS involves championing the role of the
States in environmental protection and articulating state positions
to Congress, Federal agencies and the public on environmental
issues. This mission is often advanced by writing letters, making
presentations, and working in coalition with other groups to
advocate on behalf of the states on environmental matters.
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EPA also published the Draft Revised Guidance for Investigating
Title VI Administrative Complaints Challenging Permits (Draft Revised
Investigative Guidance) in June 2000. The Draft Revised Investigation
Guidance discussed how OCR would process complaints alleging adverse
disparate health impacts from the issuance of environmental permits. To
avoid redundancy, OCR decided that the Recipient Guidance would only
focus on approaches recipients can use to enhance the public
involvement portion of their permitting programs. Discussions on
disparate and other adverse impacts may be included in guidance to be
published at a later date. Today, EPA is issuing the Recipient Guidance
as final.
B. Review of Public Comments and Revisions to the Draft Guidance
EPA received few comments regarding the Draft Final Recipient
Guidance. Some of the comments received pertained to the public
involvement practices suggested in the Draft Final Recipient Guidance.
Other comments focused on how OCR should interpret and implement EPA's
Title VI regulations. OCR only addressed comments that pertained to the
focus of this guidance, which is suggested public involvement practices
recipients can use to help ensure that federal funding is used in
compliance with the provisions of Title VI and EPA's Title VI
implementing regulations. As a result of some of the comments received,
OCR revised the document to include a discussion on the need and
importance of ensuring a level playing field for all stakeholders
before coming to the table to negotiate issues in the Alternative
Dispute Resolution (ADR) process, further explanations regarding some
of the suggested approaches to help address potential siting issues,
revisions on how OCR intends to conduct their ``due weight'' analysis,
and an additional section on The Interface Between Public Involvement
and The Rehabilitation Act. OCR has decided to address the comments by
revising and incorporating new language into the final version of this
guidance.
C. Title VI Public Involvement Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs (Recipient Guidance)
I. Introduction
A. Purpose of This Guidance
B. Title VI of the Civil Rights Act of 1964
C. EPA's Guiding Principles for Title VI and the Recipient
Guidance
D. The Interface Between Public Involvement and Title VI
E. The Interface Between Public Involvement and the
Rehabilitation Act
F. Scope and Flexibility
II. Approaches to Meaningful Public Involvement
A. Developing and Implementing an Effective Public Involvement
Plan
B. Training Staff
C. Involving the Public Early and Often Throughout the
Permitting Process
D. Encouraging Stakeholder and Intergovernmental Involvement
E. Equipping Communities With Tools to Help Ensure Effective
Public Involvement
F. Making Assistance/Grants Available to the Public
G. Using Alternative Dispute Resolution Techniques
III. Suggested Approaches for Reducing Some Common Title VI
Complaints
A. Language
B. Siting
C. Insufficient Public Notices
D. Information Repository
IV. Evaluating Approaches for Meaningful Public Involvement
V. Due Weight
VI. Conclusion
VII. Bibliography
I. Introduction
A. Purpose of This Guidance
This guidance is written for recipients \5\ of U.S. Environmental
Protection Agency assistance \6\ that administer environmental
permitting programs. It offers suggestions on approaches and ways to
address public involvement situations to ensure that federal funding is
used in compliance with the provisions of Title VI of the Civil Rights
Act of 1964, as amended (Title VI) \7\ and EPA's Title VI implementing
regulations.\8\ The approaches discussed in this guidance may be used
to create new public involvement activities or to enhance existing
public involvement activities to address allegations of discriminatory
public participation practices during the permitting process.
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\5\ ``Recipient'' is defined as ``any State or its political
subdivision, any instrumentality of a State or its political
subdivision, any public or private agency, institution,
organization, other entity, 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.
\6\ EPA assistance is defined as ``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
for a subsequent transfer or lease of such property if EPA's share
of its fair market value is not returned to EPA.''
\7\ Public Law 88-352, 78 Stat. 252 (codified as amended at 42
U.S.C. 2000d to 2000d-7).
\8\ 40 CFR part 7, Nondiscrimination in Programs or Activities
Receiving Federal Assistance from the Environmental Protection
Agency.
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This is a guidance document, not a regulation. This document offers
suggestions to recipients about enhancing public involvement processes
in environmental permitting, and addressing potential Title VI issues
before complaints arise. Recipients remain free to use approaches other
than the ones suggested here. In addition, EPA recipients may consider
other approaches and ideas, either on their own or at the suggestion of
[[Page 14209]]
interested parties. Interested parties are free to raise questions and
objections regarding this guidance and the appropriateness of using
these recommendations in a particular situation. EPA will take into
consideration whether the recommendations are appropriate in that
situation. This document does not change or act as a substitute for any
legal requirements. Rather, the sources of authority and requirements
for Title VI programs are the relevant statutory and regulatory
provisions.
B. Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964 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. However Congress directed that its policy
against discrimination by recipients of Federal assistance be
implemented, in part, through administrative rulemaking. Since 1964,
regulations promulgated by Federal agencies implementing Title VI have
uniformly prohibited conduct or actions by a recipient which have the
effect of discriminating on the basis of race, color or national
origin. 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.'' \9\
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\9\ Alexander v. Choate, 469 U.S. 287, 293-294 (1985).
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EPA initially issued Title VI regulations in 1973 and revised them
in 1984.\10\ Entities applying for EPA financial assistance submit
assurances with their applications stating that they will comply with
the requirements of EPA's regulations implementing Title VI with
respect to their programs or activities.\11\ When the recipient
receives EPA assistance, they accept the obligation to comply with
EPA's Title VI implementing regulations. Recipients must also adopt
grievance procedures that assure the prompt and fair resolution of
complaints which allege violations of EPA's Title VI regulations.\12\
When an applicant receives EPA assistance, they may not issue permits
that are intentionally discriminatory, or use ``criteria or methods of
administering its program or activity which have the effect of
subjecting individuals to discrimination because of their race, color,
or national origin.'' \13\ Persons, or their authorized
representatives, who believe Federal financial assistance recipients
are not administering their programs in a nondiscriminatory manner may
file administrative complaints with EPA or other relevant Federal
agencies. The complaint must be filed within 180 calendar days of a
particular action taken by the recipient (for example, the issuance of
an environmental permit) that allegedly has a discriminatory purpose or
effect.\14\
The filing or acceptance for investigation of a Title VI complaint
does not suspend an issued permit. Title VI complaints concern the
programs and activities being implemented by Federal financial
assistance recipients, and any EPA investigations 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. The
primary means of enforcing compliance with Title VI is through
voluntary compliance agreements. Suspension or termination of funding
is a means of last resort.
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\10\ See memo dated October 26, 2001 from Ralph F. Boyd Jr.,
Assistant Attorney General for the Civil Rights Division, to the
``Heads of Departments and Agencies General Counsels and Civil
Rights Directors'' which states the Department of Justice's position
that the Sandoval decision at 532 U.S. 286 does not alter the
validity of enforcing Title VI regulations or limit the authority
and responsibility of Federal grant agencies to enforce their own
implementing regulations.
\11\ 40 CFR 7.80, EPA Form 4700-4 and Standard Form 424.
\12\ 40 CFR 7.90.
\13\ 40 CFR 7.35(b).
\14\ 40 CFR 7.120(b)(2).
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Executive Order 12250 directs Federal agencies to issue appropriate
Title VI implementing directives, either in the form of policy guidance
or regulations consistent with requirements prescribed by the
Department of Justice's Assistant Attorney General for Civil
Rights.\15\ This guidance was developed as a result of the nature of
Title VI complaints received in EPA's Office of Civil Rights coupled
with requests for guidance from state and local agencies. This guidance
focuses on public involvement approaches recipients may use to ensure
that federal funding is used in compliance with the provisions of Title
VI and EPA's Title VI implementing regulations.
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\15\ Executive Order 12250, 45 FR 72995 (1980) (section 1-402).
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C. EPA's Guiding Principles for Title VI and the Recipient Guidance
To ensure stakeholder involvement in the development of the Draft
Recipient Guidance, EPA 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 from
communities, environmental justice groups, state and local governments,
industry, and other interested stakeholders. EPA asked the committee to
review and evaluate existing techniques that EPA funding recipients
could use to administer environmental permitting programs in compliance
with Title VI. Techniques evaluated could include tools for assessing
potential Title VI concerns and mitigating impacts where they occur.
Core components of the Recipient Guidance are based on several
threshold principles NACEPT included in their April 1999, Report of the
Title VI Implementation Advisory Committee: Next Steps for EPA, State,
and Local Environmental Justice Programs.\16\ EPA established guiding
principles for implementing Title VI and developing the Draft Recipient
Guidance. In implementing Title VI and developing this final guidance,
EPA is reaffirming its commitment to the following principles:
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\16\ For a copy of this report, see: http://www.epa.gov/civilrights/t6faca.htm.
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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 in preventing
Title VI violations and complaints.
Enforcement of civil rights laws and environmental laws
are complementary, and can be achieved in a manner consistent with
sustainable economic development.
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.
Meaningful outreach and public participation early and
throughout the decision-making process is critical to identify and
resolve issues, and to also assure proper consideration of public
concerns.
Intergovernmental and innovative problem-solving provide
the most comprehensive response to many concerns raised in Title VI
complaints.
[[Page 14210]]
D. The Interface Between Public Involvement and Title VI
Public involvement should be an integral part of the permit
decision-making process to help the public understand and assess how
issues affect their communities. The degree of public involvement in
the permitting process can directly affect the likelihood of the filing
of complaints alleging discrimination. Meaningful public involvement
consists of informing, consulting, and working with potentially
affected and affected communities at various stages of the permitting
process to address their concerns. Appropriate collaboration during the
permitting process can foster trust, and help establish credible, solid
relationships between permitting agencies and communities. Such
collaboration may serve to ensure that concerns are identified and
addressed in a timely manner to possibly reduce the filing of some
Title VI complaints.
The fundamental premise of EPA's 2003 Public Involvement Policy is
that ``EPA should continue to provide for meaningful public involvement
in all its programs, and consistently look for new ways to enhance
public input. EPA staff and managers should seek input reflecting all
points of view and should carefully consider this input when making
decisions. EPA also should work to ensure that decision-making
processes are open and accessible to all interested groups, including
those with limited financial and technical resources, English
proficiency, and/or past experience participating in environmental
decision-making. Such openness to the public increases EPA's
credibility, improves the Agency's decision-making processes, and can
impact final decision outcomes. At the same time, EPA should not accept
any recommendation or proposal without careful, critical
examination.''\17\ OCR suggests that EPA recipients consider using a
similar approach when implementing their environmental permit programs.
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\17\ For a copy of this report, see: http://www.epa.gov/publicinvolvement/policy2003/finalpolicy.pdf
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The interface between public involvement and Title VI often arises
when racial or ethnic communities believe that they've been
discriminated against as a result of a decision made in the permitting
process. OCR believes that many of these assertions of discrimination
arise from a failure to adequately involve the public in the pre-
decisional process prior to permit issuance. Violations of Title VI or
EPA's Title VI regulations can be based solely on discriminatory
actions in the procedural aspects of the permitting process. Many Title
VI complaints center around allegations of discrimination that may have
been prevented, mitigated, or resolved if certain public involvement
practices had been implemented by recipient agencies. OCR believes that
having recipients focus on early, inclusive and meaningful public
involvement throughout the entire permitting process will help ensure
that Federal funding is used in compliance with the provisions of Title
VI and EPA's Title VI implementing regulations.
In 1999 the Office of Solid Waste conducted a series of seven case
studies to determine if the redevelopment of EPA Brownfields \18\
Pilots had been impeded by Title VI complaints, and to address concerns
of whether these complaints may deter businesses from redeveloping
Brownfields sites. The study, ``Brownfields Title VI Case Studies,''
\19\ indicated that community residents are not likely to file Title VI
complaints when the redevelopment process provides for early and
meaningful community involvement, and creates a benefit for the local
community. In several of the case study Pilots, communities were
involved in identifying and helping to resolve issues during the early
stages of the process which helped build trust between stakeholders and
a sense of ownership for community members. According to those
interviewed, community outreach and involvement served to prevent the
filing of Title VI complaints and other opposition to development
projects.
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\18\ EPA defines Brownfields as real property that is expanded,
redeveloped, or reused which may contain or potentially contain a
hazardous substance, pollutant or contaminant. Cleaning and
reinvesting these properties takes development pressures off of
undeveloped, open land which help to improve and protect the
environment. For more information on Brownfields Cleanup and
Redevelopment, see: http://www.epa.gov/swerosps/bf/index.html
\19\ For a copy of this report, see: http://www.epa.gov/oswer/ej/ejndx.htm#titlevi or call the hotline at 1-800-424-9346.
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E. The Interface Between Public Involvement and the Rehabilitation Act
It is important that recipients provide access and accommodation to
individuals with disabilities who wish to take part in public
involvement activities. Recipients may consult Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794, and EPA's implementing
regulations, 40 CFR Part 7. Additional documents which list information
to assist recipients in providing access and accommodation are included
in Section VII of this guidance, ``Bibliography.'' Many of the
documents listed in the bibliography refer to Title II of the Americans
with Disabilities Act, 42 U.S.C. 12131 et seq., but also have
applicability to Section 504.
F. Scope and Flexibility
This guidance was written at the request of the states and is
intended to offer suggestions to help EPA state and local recipients
develop and enhance the public involvement portion of their existing
permitting programs. This guidance offers a flexible framework of
public involvement approaches. The information and tools discussed in
this guidance include proactive approaches to enhance the public
involvement aspects of their current permitting program and to help
ensure that federal funding is used in compliance with the provisions
of Title VI and EPA's Title VI implementing regulations.
EPA knows that because recipients may have different Title VI
concerns in communities within their jurisdiction, different levels of
resources, and different organizational structures, a ``one-size-fits-
all'' Title VI public involvement approach will not adequately address
every program's needs. Recipients are therefore encouraged to use the
activities or approaches in this guidance that will be most beneficial
in addressing each situation accordingly. While this guidance is
intended to focus on issues related to public involvement in
environmental permitting, recipients may also consider developing
proactive approaches to promote equitable compliance assurance and
enforcement of environmental laws within individual jurisdictions.
However, compliance with environmental laws does not ensure compliance
with Title VI. Even though recipients are not required to implement the
Title VI public involvement approaches described in this guidance, they
are required to operate their programs in compliance with the non-
discrimination requirements of Title VI and EPA's implementing
regulations.\20\
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\20\ 42 U.S.C. 2000d to 2000d-7, 40 CFR 7.30 and 7.35.
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II. Approaches to Meaningful Public Involvement
This guidance suggests a number of public involvement approaches
recipients may want to adopt and implement to help address Title VI
related concerns in their permitting programs. The approaches described
here are not intended to be mutually exclusive. The objective of these
[[Page 14211]]
approaches is to have recipients fully engage as many members of the
affected community as possible in the discussions and decisions made
regarding issues in their community. Because of differences in culture,
levels of experience, knowledge, and financial resources, recipients
are encouraged to combine portions of several, or use as many
approaches to the extent appropriate to satisfy their program needs.
Recipients may couple these approaches with practices already in use to
better implement their Title VI programs. Recipients are also
encouraged to develop and implement additional approaches not mentioned
in this guidance. OCR may consider the outcomes of any approaches in
the analysis of a Title VI complaint that relate to programs,
activities or methods of administration.\21\Suggested approaches are
listed below.
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\21\ For further discussion of the concept of giving ``due
weight'' to a recipient's compliance efforts in the context of a
Title VI complaint, see Section V.
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A. Developing and Implementing an Effective Public Involvement Plan
A Public Involvement Plan (PIP) is a document that serves as the
basic foundation of any good public involvement program. PIPs serve as
early involvement tools to identify community concerns and lay out
approaches recipients plan to take to address those concerns through
various outreach activities. An effective PIP includes discussions of
what recipients plan to do to ensure that the needs and concerns of the
affected community are addressed. In addition, an effective PIP strives
to keep the community informed of the public involvement opportunities
available to them during the decision-making process. An effective PIP
expedites the flow of information for unexpected events, answers basic
questions on issues related to the community's concerns, and helps
ensure better decision outcomes to benefit the affected community.
Equally important, an effective PIP provides members of the affected
communities with a sense of partnership in the decision-making process
underlying the permitting process. For these reasons, communities and
other affected groups should be included in the development of the PIP.
Recipients may decide to take the lead in contacting the necessary
groups and developing their PIP as an agency, or may use a neutral
third party to convene the relevant groups and facilitate the process.
Either way, communities and all those affected by the decision outcome
should be involved in developing the PIP, as well as ensuring that the
planning efforts of the recipient agency address those issues that are
important to them.\22\An effective PIP includes the following
information:
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\22\ For suggestions on how to develop a Public Involvement
Plan, see: http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manual.htm, http://www.epa.gov/superfund/tools/cag/ci_handbook.pdf,
and http://web.em.doe.gov/ftplink/public/doeguide.pdf.
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(1) An overview of the recipient's plan of action for addressing
the community's needs and concerns,
(2) A description of the community (including demographics,
history, and background),
(3) A contact list of agency officials with phone numbers and email
addresses to allow the public to communicate via phone or internet,
(4) A list of past and present community concerns (including any
Title VI complaints),
(5) A detailed plan of action (outreach activities) recipient will
take to address concerns,
(6) A contingency plan for unexpected events,
(7) Location(s) where public meetings will be held (consider the
availability and schedules of public transportation),
(8) Contact names for obtaining translation of documents and/or
interpreters for meetings,
(9) Appropriate local media contacts (based on the culture of the
community), and
(10) Location of the information repository.
A PIP may change from one affected community group to another or
for the same community group over time depending on the types of
facilities in the community and the environmental issues faced by the
community. PIPs are public documents that should always be available
for public viewing. PIPs should be living documents that can easily be
revised at any time to effectively address the needs and concerns of
the affected community. Hard copies of PIPs should be made available
for the public in areas that would be easily accessible to the
community (e.g., libraries, community centers, etc.). Because of the
informative/exchange age in which we live, PIPs should also be made
available for the public electronically by way of the internet.
B. Training Staff
To understand the importance of building relationships with
communities, recipients may need to make internal commitments to tailor
their programs so that public involvement becomes a part of the culture
of how staff are trained and programs operate. A successful public
involvement program should consist of a team of knowledgeable agency
staff (possibly from different program offices within the recipient
agency e.g., Permitting, Environmental Justice, etc.) who are committed
to, and have the ability to reach out and engage the community early in
the permitting process. Because the public may sometimes harbor
frustration towards public agency officials who may not be certain
about how to properly address an issue within the scope of a public
meeting, it is critical for those on the public involvement team to
have broad-based skills. Such skills include knowing how to
communicate, understand, and address concerns of the general public. In
addition, the team should be able to work well together and make sure
that everyone thoroughly understands and is able to articulate agency
policy, perspectives, and operating procedures of their program in a
manner which the public can understand. To be most effective, the
public involvement team should include at a minimum, staff capable of
serving in permitting and community liaison roles. Although some staff
may not have readily acquired public involvement understanding or
outreach skills to communicate and work out disputes between their
agency and the public in a polished manner, through training, many can
acquire them.
Training should include ensuring that there is a thorough knowledge
of all of the applicable requirements as well as how to engage the
public throughout the entire permitting process. Team members or
program staff should know and be able to explain `what to do, how to do
it, and when to do it' for the programs they work in. In addition,
training should include sessions on how to actively listen to the
public's concerns, the importance of seriously considering the public's
opinions, and addressing the public's questions in an understandable,
prompt and respectful manner. Training that emphasizes these points
among others may reduce the likelihood of controversy, permitting
delays and the filing of Title VI complaints. While training alone does
not guarantee that delays in the permitting process or the filing of
Title VI complaints will no longer occur, it is a helpful adjunct to
any dispute avoidance and resolution process.
Basic elements for an effective public involvement training program
that will help ensure that federal funding is used in compliance with
the provisions of Title VI and EPA's Title VI implementing regulations
include:
[[Page 14212]]
Step by step training on how to explain the applicable
environmental program regulations to the public in a clear and concise
manner;
Cultural and community relations sensitization;
How to engage in a dialogue and collaboration, as well as
how to build and maintain trust and mutual respect with communities;
Skills and techniques to enable staff to effectively
address community concerns in a clear and concise manner;
A basic use of available technological communication tools
such as the internet, databases, GIS tools and site maps, etc. to help
identify and address potential issues in affected communities that may
give rise to Title VI concerns; and
Alternative dispute resolution techniques to enable staff
to design and carry out a collaborative and informal process that can
help resolve Title VI concerns.\23\
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\23\ See section II. G, ``Using Alternative Dispute Resolution
Techniques''.
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C. Involving the Public Early and Often Throughout the Permitting
Process
Public involvement done early and often, is essential for the
success of any permitting program. Public input is a valuable element
which can influence decisions made in communities hosting proposed and
permitted facilities. Early involvement is not only helpful to
communities, but to recipients as well, because it encourages
information exchange and gives time for both parties to consider and
better understand the others viewpoints before actual decisions are
made.
Some regulations require permitting programs to include public
involvement opportunities during certain stages of the permitting
process.\24\ While such requirements are designed to ensure that
community input is obtained at critical stages of the process, the
public may sometimes feel as though these opportunities do not include
them as active, ongoing partners. Consider tailoring and integrating
public involvement practices that engage communities into as many
stages of the process as appropriate, so that public involvement
becomes more of a ``culture'' of how agencies think and operate, as
opposed to a list of measures to check off as they are completed.
Examples of ways to encourage early public involvement include:
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\24\ See 40 CFR part 25 and part 124, Subpart A.
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When soliciting community input regarding upcoming
decisions, take steps to get feedback from as many members of the
affected community as possible, prior to the meeting. This may mean
finding out from community members, who will and will not attend the
meeting. Based on that information, provide communities with alternate
means of participating for those who would not be able to attend the
meeting. For example, some members may want to, and have the time to
attend every meeting to hear discussions of the issues every step of
the way; while others, due to time constraints, would be satisfied
submitting written comments or completing agency questionnaires
regarding the issues, while trusting that their opinions and concerns
will be considered during discussions and when decisions are made.
Requiring facilities to hold pre-application meetings with
the public prior to submitting their application to the permitting
agency. Such an activity, which is required in the RCRA program,\25\
can open the dialogue between the permit applicant and the community in
the very early stages of the process. This gives the facility an
opportunity to share information with the community and hear and
respond to their concerns with greater sensitivity prior to submitting
the permit application. Involving the public in identifying potential
issues upfront and in discussions regarding possible solutions may help
promote ``ownership'' of decisions and policies made affecting their
community. This practice can help maintain community support over the
life of the permit. Even though some decisions may not always fully
reflect the community's views, if communities are involved early and
throughout the process, they may be more willing to accept the
decisions made and continue to participate in discussions to help
prevent future issues. Such community involvement may help reduce the
likelihood of communities challenging permit decisions toward the end
of the permitting process, or filing Title VI complaints alleging
discrimination.
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\25\ See 40 CFR 124.31(b).
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D. Encouraging Stakeholder and Intergovernmental Involvement
Stakeholder involvement is the process of bringing together those
people or groups who may be affected by decisions made regarding
concerns in a community. Stakeholder groups identify, discuss and work
toward resolving concerns in a collaborative manner. Groups may include
but are not limited to communities, businesses, environmental justice
groups, Federal, state and local governments, tribes, academia, and
environmental and trade organizations. Stakeholder involvement is vital
in establishing and maintaining a successful public involvement
program. Effective stakeholder involvement ensures that diverse
interests are considered and gives community members from various
backgrounds and cultures opportunities to take active roles to
effectively contribute and possibly influence decisions affecting them
and their community. As stakeholders continue to work together, they
become more familiar with the character of the community and are better
able to collaboratively mitigate or resolve issues as they arise.
Depending on the scope of authority, resources and expertise, the
representatives in stakeholder groups can be very broad. It is
important to plan and carefully consider beforehand, which stakeholders
to include in the meetings, and to seek out the groups and individuals
who will be most affected by the proposed action. Contacting some
groups and individuals may be difficult because of their cultural or
economic lifestyles, while locating and including other groups will be
easier due to their known interest in the decision outcome. For
instance, some Title VI concerns may involve zoning or traffic
patterns. Collaborating with the governmental units responsible for
regulating zoning and traffic patterns, along with the communities that
will be affected by any new potential driving routes, may increase the
likelihood of achieving more effective solutions to concerns raised in
the Title VI context. The earlier all appropriate parties are
identified, and brought into the process, including other governmental
agencies, the greater the likelihood of reaching effective solutions
E. Equipping Communities With Tools To Help Ensure Effective Public
Involvement
Often the public does not get involved in decision-making because
of their lack of understanding or knowledge of issues affecting their
community. Alternatively, the public may not articulate or formulate
their concerns in a manner that clearly fits into the decision-making
process underlying the issuance of a permit. As a result, the public
may feel as if their views were not valued or seriously considered when
final permit decisions were made. It is important that the public be
equipped with necessary tools to allow them to effectively participate
in the permit decision-making process. Consider offering training to
educate the public on process and basic technical issues that are
relevant in making
[[Page 14213]]
permitting decisions. Training that emphasizes the procedures, options
and available information, may encourage community members to assume a
more active role when participating in permitting discussions affecting
them and their community. Doing so can affect how issues are resolved
at the local and state levels. For instance, the benefits of holding
educational workshops that clarify public involvement opportunities in
the permitting process would create a greater understanding of the
permitting process by the public and may increase the level of public
involvement; which could lead to a reduction in the number of Title VI
complaints filed. An effective training/information program for
communities may include the following:
An information packet with useful information or fact
sheets regarding applicable environmental regulations, the public
involvement opportunities in the different environmental permitting
programs, and the important role community involvement plays in helping
to address community concerns early in the permit decision-making
process, as opposed to later in a Title VI complaint.
Targeted or one-day training sessions on different subject
matters relating to public involvement and permitting. These sessions
could include presentations/discussions on the importance of public
involvement or a walk through of steps included in the permit review
stage, while focusing on public involvement options and opportunities
in the permitting process. For example, such a session could consist of
discussions on the types of information needed to review a pending
permit and points on how to prepare effective technical and legal
comments.
Specific ``how to'' sessions for the public that
illustrate through role playing how they can effectively participate
and influence decisions during the public involvement process.
F. Making Assistance/Grants Available to the Public
The complex and technical nature of many permitting programs may
sometimes impede effective public involvement during the permitting
process. To help bridge the gap in capacity between community groups
and other stakeholders, several agencies have begun to provide
resources in the form of grants and free technical assistance. These
types of educational resources serve to help empower communities to
better equip them to actively participate in discussions and offer
solutions to help address potential Title VI issues in their community.
Grants such as Technical Assistance Grants (TAGs) \26\ and
assistance through programs such as Technical Outreach Services for
Communities (TOSC) \27\ have been very successful in educating
communities on technical and process issues. In addition to grants,
local colleges and universities within the communities can also serve
as a major resource because of their technical expertise, research
capabilities and historical knowledge of issues faced by the affected
communities in the past.
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\26\ A TAG provides money for activities that help communities
participate in decision making at eligible Superfund sites. An
initial grant up to $50,000 is available to qualified community
groups so they can hire independent technical advisors to interpret
and help them understand technical information about their site.
TAGs may also be used to attend approved training and obtain
relevant supplies and equipment. For more information, see: http://www.epa.gov/superfund/tools/tag/index.htm.
\27\ The TOSC program provides free, independent, non-advocate,
technical assistance to communities living near hazardous waste
contaminated sites. The goal of the TOSC program is to help
communities understand the underlying technical issues associated
with contaminated sites in their neighborhoods so that they may be
able to substantively participate in the decision-making process
regarding issues in their community. For more information on TOSC,
see: http://www.epa.gov/superfund/tools/tosc/index.htm.
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G. Using Alternative Dispute Resolution Techniques
The ability to address potential impacts in a timely and
collaborative fashion 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 recipients to consider and use Alternative Dispute
Resolution (ADR) \28\ techniques where appropriate to prevent and
address concerns regarding public involvement in the permitting
process. ADR refers to voluntary procedures used to prevent and settle
controversial issues by developing and implementing an outcome
agreeable to all parties. The goal of ADR is for stakeholders to
collaborate and resolve issues acceptable to everyone involved.
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\28\ For more information on ADR techniques, contact EPA's
Conflict Prevention and Resolution Center at http://www.epa.gov/adr.
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ADR includes using a wide range of processes to resolve
controversial issues. All ADR techniques involve a neutral third party
who assists others in designing and conducting a process for reaching
possible agreement. The neutral third party should not have a stake in
the substantive outcome of the process and is equally accountable to
all participants in the ADR process. Often the use of ADR includes
dialogue between parties to reach acceptable solutions. Effective ADR
can result 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. Typically, all aspects of ADR are voluntary, including the
decision to participate, the type of process used, and the content of
any final agreement. For actual or potential Title VI matters, ADR can
provide parties with a forum to discuss a full range of issues that may
not be possible to address through formal administrative processes.
Examples of ADR approaches that may be particularly relevant for Title
VI concerns include:
Facilitation--Facilitation is a process used to help
parties constructively discuss complex or potentially controversial
issues. Facilitators are often used to guide meetings, design
approaches for discussing issues, improve communication between
parties, create options, keep the parties focused on the issues at
hand, and help avoid and overcome contentious situations.
Mediation--Mediation is a process in which a neutral third
party (the mediator) assists the parties in conflict, in reaching a
mutually satisfying settlement of their differences. Mediators are very
useful in guiding the dynamics of a negotiation especially when
discussions are not productive enough to reach a mutual agreement. Good
mediators are skillful at assisting parties in constructively
expressing emotions, encouraging information exchange, providing new
perspectives on the issues at hand, and helping to redefine issues in
ways that may lead to mutual gains. Mediators often provide
facilitation as well as mediation services.
Joint Fact-Finding--Joint fact-finding is a process in
which parties commit to building a mutual understanding of disputed
scientific, technical, legal or other information. A neutral third
party assists the group in identifying a mutually agreeable set of
questions and selecting one or more substantive experts to provide
information concerning the questions.
A number of factors can contribute to a successful ADR process in
the Title VI context and help provide all parties with confidence to
maximize their opportunity to reach resolution. These factors include:
Designing a process for selecting a neutral third party
who will be able to meet the needs of all parties. For
[[Page 14214]]
example, parties may need to engage a neutral third party who is
bilingual or who has past experience successfully assisting in the
resolution of Title VI complaints.
Using a neutral third party to conduct a confidential
situation assessment; including interviewing all parties to identify
the issues and making recommendations for the ADR process prior to
beginning any dialogue.
Using a neutral third party's assistance to develop and
agree on a set of guidelines or ground rules for the process to ensure
that expectations of all the participants are clear from the beginning.
Considering participants' needs for information and
expertise, before coming to the table and during the process, to
enhance their dialogue. For example, design a process that will allow
all parties to provide necessary information in good faith and in some
cases secure independent technical expertise to assist some of the
parties prior to any negotiations.
Incorporating ADR early in the process when developing a Public
Involvement Plan, may prevent the need to use ADR at a later stage of
the process when conflicts may have escalated. Involving all affected
parties in the ADR process can help ensure that the agreements reached
provide solutions to reduce or eliminate: (1) Discriminatory effects
resulting from the issuance of permits; and/or (2) discrimination
during the public involvement process associated with the permitting
process.
III. Suggested Approaches for Reducing Some Common Title VI Complaints
Listed below are four common issues often seen as part of Title VI
complaints received in EPA's Office of Civil Rights. A brief statement
is included explaining each allegation, along with suggestions for
approaches recipients may take to reduce future complaints of a similar
nature. In offering these suggestions, EPA is not addressing the merits
of any specific complaint or any overarching issue. Rather, EPA is
suggesting ways to improve public involvement.
A. Language
Issue: Complaints frequently note a failure to provide printed
information in other languages or appropriate interpreters at meetings
for non-English speaking community members to ensure their full
participation in the public involvement process.
Using written translation and oral interpreters in communities with
non-English speaking members help ensure broader participation from the
affected community. In June 2004, EPA published the Guidance to
Environmental Protection Agency's Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons (LEP Guidance).\29\
According to the LEP Guidance, individuals who do not speak English as
their primary language and who have a limited ability to read, write,
speak, or understand English can be Limited English Proficient, or
``LEP'' and may be entitled to language assistance with respect to a
particular type of service, benefit or encounter. The intent of this
guidance is to suggest a balance that ensures meaningful linguistic
access to LEP persons to critical services while not imposing an undue
burden on small businesses, small local governments, or small nonprofit
organizations. The guidance suggests four factors recipients may
consider to determine if different language assistance measures are
sufficient for the different types of programs and activities
administered by the recipient. The use of this guidance would be
helpful to recipients when determining what level of measures are
needed to accommodate the LEP persons in affected communities to ensure
maximum participation in the permitting process. The guidance
encourages recipients to develop an implementation plan to address the
identified needs of the LEP populations they serve.
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\29\ For more information regarding improving access to services
for persons with limited English proficiency, see Executive Order
13166, 65 FR 50121 (2000), and Guidance to Environmental Protection
Agency Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons, 69 FR 35602 (2004). Recipients, Federal
agencies and community organizations may also find information at:
http://www.LEP.gov.
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Additional suggestions on approaches recipients may use to reduce
and possibly avoid complaints regarding language issues include:
While preparing your Public Involvement Plan, work with
the community and consult EPA's LEP guidance to determine if
translation and/or interpretation services may be needed to ensure
meaningful participation. Examples of populations to consider when
planning language services include, but are not limited to, persons
near a plant or facility that is permitted or regulated by an EPA
recipient, persons subject to or affected by environmental protection,
clean-up, and enforcement actions of an EPA recipient, or persons who
seek to enforce or exercise their rights under Title VI or
environmental statues and regulations. Consider whether the affected
community's ability to participate in the process may be limited by the
ability of their community members to speak or understand English.
Plan and budget in advance for translation and interpreter
services. If resources are limited, consider the sharing of language
assistance materials and services among and between recipients,
advocacy groups, Federal grant agencies, and business organizations.
Where appropriate, train and/or test the competency of bilingual staff
to act as limited or ad hoc interpreters and translators.
If in-house or local resources are not available, contact
nearby colleges or universities for possible assistance for translation
of interpreter services and identifying other competent but cost
effective resources.
Use multilingual fact sheets, notices, signs, maps, etc.
regularly to provide meaningful access by LEP persons to information in
as many aspects of the permitting process as appropriate.
B. Siting
Issue: Complaints frequently refer to the siting of facilities in
neighborhoods that already host similar and often more facilities than
neighborhoods in nearby communities. Complainants believe that many of
these siting decisions are based on zoning regulations that are in need
of revision.
Local zoning and planning authorities typically make land use
zoning decisions and approve development plans to ensure they conform
with existing zoning regulations. Some of the zoning regulations were
enacted several decades ago. State and local environmental permitting
agencies are responsible for minimizing the environmental impacts to
local communities and ensuring that their practices and policies are
implemented in a nondiscriminatory manner. However, some of the
environmental permitting agencies may not be involved in local zoning
decisions. To improve the relationship between communities and state/
local governments, some permitting agencies have begun working with
their local land use and planning boards to try to integrate the
environmental, social and economic needs of communities early in the
process, beginning in the site planning stage.\30\
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\30\ For examples on how some state and local agencies are
working together to address community concerns regarding siting, see
the National Academy of Public Administration's July 2003 report
entitled ``Addressing Community Concerns: How Environmental Justice
Relates to Land Use Planning and Zoning'' at http://www.napawash.org.
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[[Page 14215]]
Some approaches that may be considered to help address potential
siting issues include:
Acknowledging concerns communities have with existing
facilities near residential areas and working with those communities to
develop outreach strategies to address their concerns.
Working with the appropriate authorities to ensure that
data regarding the demographics and location of existing facilities in
communities are considered before making local land-use and planning
decisions. Understanding the existing environmental and health impacts
as well as the demographics, in the areas under consideration for the
siting of new facilities, may help recipients ensure they do not issue
permits in a discriminatory manner.
Revising or developing state level regulations or policies
that list land-use objectives and practices to guide local zoning
agencies when making siting decisions.
Working with appropriate authorities to identify locations
for new facilities that avoid net increases of pollution in communities
with disproportionately high exposures or that already host a number of
facilities. Title VI and EPA's implementing regulations do not
expressly prohibit the siting of facilities in facility-dense areas.
Recipients may choose to consider making facility density one criterion
in their siting and permitting analysis to help identify communities
where the potential environmental and health impacts could be
significant.
Working with local land-use and planning boards to review
current land use practices in heavily populated areas, and begin
developing strategies to reduce future impacts on those affected
communities.
Having state environmental agencies provide outreach and
technical assistance (through training workshops) to local governments
on how to engage communities in siting decisions made.
Sharing environmental data with local governments to help
them project and evaluate future impacts of proposed land use plans on
existing communities before decisions are finalized.
C. Insufficient Public Notices
Issue: Complaints frequently allege the lack of meaningful
opportunities for communities to participate in the public involvement
process because notices are not publicized broadly enough to reach all
communities.
Community input plays an integral role in any successful permitting
program. Public notices serve as a means to inform the public and
ensure community input. Inadequate public notices can result in a lack
of trust between communities and state/local agencies, permitting
delays, and the filing of Title VI complaints.
Suggested approaches for reducing future complaints regarding
insufficient public notices include:
Seeking community input to find the most effective ways of
getting information out to particular communities.
Choosing outlets that are most widely used by members of
the affected community (e.g., community-based church bulletins,
culturally-based community newspapers, grocery stores, libraries,
foreign-language radio for reaching non-English-speaking communities,
the internet and other places frequently visited by members of the
affected community).
Notifying communities multiple times prior to the event
(e.g., 10 to 14 days before, one week before and one day before the
event is held via radio, phone, email, newspaper, etc.) to ensure the
greatest level of participation.
Announcing times, dates and locations of events clearly in
the appropriate languages.
Providing sufficient information on the purpose and scope
of the meeting by listing the types of information to be discussed,
along with the type of feedback/input the agency is seeking from the
public.
Providing names, addresses (including email addresses),
and telephone numbers of agency contact persons.
D. Information Repository
Issue: Complaints frequently discuss the lack of an information
repository or insufficient notice regarding the location and/or hours
for reviewing permit information in the repository, or selection of an
inconvenient location for the repository.
Information repositories should provide the public with access to
accurate, detailed, and current data about facilities in their
community.\31\ Although states have the authority to require that
facilities establish information repositories, many states do not
include it as a mandatory activity in their regulations. The existence
of an information repository in a community shows a responsiveness and
commitment to the community's needs for comprehensive information
regarding a facility. Information repositories greatly improve public
participation by making important information readily accessible to
communities interested in participating in the permitting process or
merely wanting to keep abreast of activities at facilities in their
neighborhoods. Suggestions on approaches recipients may use to reduce
complaints regarding information repositories include:
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\31\ Federal, state and local government officials may access
risk management plans (RMP) (describing potential accidental
releases) and Off-site Consequence Analysis (OCA) information for
official use by contacting their Implementing Agency or EPA's
contractor-operated RMP Reporting Center at 301-429-5018 (e-mail:
[email protected]). OCA information is available to the
public at Federal reading rooms located throughout the United States
and its territories. EPA also makes available RMPs without the OCA
data elements that might significantly assist someone in targeting a
chemical facility. State Emergency Response Commissions and Local
Emergency Planning Committees may also provide the public with read-
only access to OCA information for local facilities. Private
individuals can find contact information for a local committee or
get a list of facilities that have opted to make their OCA
information available to the public without restriction at http://www.epa.gov/ceppo/lepclist.htm or by calling the EPA hotline at
(800) 424-9346.
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Establishing, or requiring that facilities establish
information repositories, especially in cases where a significant
amount of public concern is expected or has surfaced, or when the
community has unique information needs;
Choosing locations for information repositories in places
most convenient and accessible to the public (e.g. local public
libraries, community centers, churches, etc.);
Establishing an online information repository for public
access;
Ensuring that the existence of the information repository
is well publicized;
Ensuring that repositories are placed in well lit and
secure locations;
Ensuring that the hours for reviewing information in the
repository are convenient to the public;
If a permitting activity is controversial or is expected
to raise a lot of community interest, suggesting that the facility
consider providing several copies of key documents in the repository so
many people can review the information at the same time; and
Ensuring that the repository is updated as new information
is generated regarding the facility.
IV. Evaluating Approaches for Meaningful Public Involvement
It is important to periodically evaluate any implemented public
involvement approach from the beginning stages of the process to
identify and address areas
[[Page 14216]]
in need of improvement. The evaluation process is a fundamental part of
any public involvement process. Evaluating the public involvement
program on an ongoing basis gives the recipient a sense of where things
are, and an indication of where things are going. Evaluating the
program can also help the recipient determine whether set goals were
met, make sure that the process stays on track, and allow for changes
as the process moves forward.
Tools used for evaluating public involvement programs may include:
Informal Feedback--Informal feedback is unstructured
communication on a routine basis between the recipient agency, the
community, and facilities to give everyone a chance to express how the
process went, is going, and how it can be improved.
Questionnaires--Questionnaires are very useful and usually
consist of short to-the-point questions to determine whether the
participants felt the activity was useful. Questionnaires are often
used at the end of an event such as a public meeting.
Interviews--Interviews are usually done under a more
formal setting when feedback is needed from a larger group. Feedback
obtained from interviews may be used to help construct additional and
more defined tools (e.g., PIPs).
Debriefs--Debriefs are very useful methods for receiving
internal feedback from staff members on a process. Debriefs are most
successful when done shortly after the process concludes to ensure that
all major issues are addressed, and suggestions for improvements can be
implemented into future activities.
Surveys--Surveys are very useful to obtain data or
statistical information.
V. Due Weight
Many recipients, have asked OCR to provide ``incentives'' to help
them develop proactive Title VI related approaches. Some recipients
have asked OCR to recognize, and to the maximum extent possible, rely
on the results of any such approaches in assessing Title VI complaints
filed with EPA. While EPA encourages efforts to develop proactive Title
VI-related approaches, under the Civil Rights Act of 1964, the Federal
government is charged with assuring compliance with Title VI.
Consequently, OCR cannot completely defer to a recipient's own
assessment of whether Title VI or EPA's Title VI implementing
regulations have been violated. In addition, OCR cannot rely entirely
on an assertion that a Title VI approach has been followed or delegate
its responsibility to enforce Title VI to its recipients.\32\ Thus,
regarding the processing of Title VI complaints, EPA retains the
ability to:
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\32\ 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 Federal agencies are responsible for
enforcing the nondiscrimination requirements that apply to
recipients of assistance under their programs.'').
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Decide whether to investigate the complaint using the
recipient's analysis as supplemental information;
Investigate a complaint or initiate a compliance review
notwithstanding any informal resolution reached by the recipient and
complainant; and
Initiate its own enforcement actions as a general matter.
Nevertheless, EPA believes that it can, under certain
circumstances, recognize the results of information submitted by
recipients and give it appropriate due weight. For example, if during
the course of an investigation, results of adopted approaches are
submitted as evidence that EPA's Title VI regulations have not been
violated, EPA will review the approach and results to determine how
much weight to give the submission in its investigation.\33\
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\33\ In addition to the analyses and procedures described in
this section, OCR also intends to consider other available and
relevant evidence from both the recipient and complainant, such as
meeting minutes, correspondence, empirical data, interviews, etc.,
as appropriate.
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Some recipients may develop procedures for their permitting
programs that meet certain criteria designed to ensure a
nondiscriminatory public involvement process. The weight given any
evidence related to the public involvement process and the extent to
which OCR may rely on it in its decision will likely vary depending
upon:
Whether the criteria that formed the basis for the program
were sufficient to ensure a nondiscriminatory process;
If the overall permitting process met those criteria; and
The relevance of the recipients' public involvement
programs to the allegation(s) and the thoroughness of documentation of
how the recipient's process addresses the allegations.
The value that OCR expects to give public involvement approaches
will likely range from no weight for procedures that have significant
deficiencies, to significant weight for procedures depending on the
outcome of OCR's review. Some weight would likely be given to
procedures that fall between these two extremes, such as recipient
efforts to resolve specific allegations before the complaint was filed
with EPA. If OCR finds that a recipient's public involvement process
warrants the greatest weight, then OCR would consider the recipient's
input in subsequent decisions. However, OCR reserves the right to
investigate future allegations regarding complaints against recipients
with comprehensive public involvement programs, without relying
exclusively on input from those recipients when making subsequent
decisions. In addition, OCR may conduct an investigation in cases where
there is an allegation or information reveals that the public
involvement process used was inadequate or improperly implemented.
VI. Conclusion
This guidance suggests approaches that recipients of EPA financial
assistance may use to help enhance the public involvement aspects of
their current permitting program and ensure that federal funding is
used in compliance with the provisions of Title VI of the Civil Rights
Act of 1964 and EPA's Title VI regulations. It emphasizes community
involvement early and often in the permitting process. It examines four
common allegations in Title VI complaints and offers suggestions on how
to reduce the likelihood of future complaints of a similar nature. EPA
believes that the approaches suggested in this guidance will help
improve relations between EPA recipients and communities, enable
communities to better participate in the public involvement portion of
the permitting process, and give direction to EPA recipients and local
decision-makers on possible ways to ensure that EPA funding is used in
compliance with the provisions of Title VI and EPA's Title VI
implementing regulations.
Dated: March 13, 2006.
Karen D. Higginbotham,
Director, Office of Civil Rights.
VII. Bibliography
EPA, 2003, Public Involvement Policy of the U.S. Environmental
Protection Agency, Office of Policy, Economics and Innovation,
Washington, DC, EPA 223-B-03-002, http://www.epa.gov/publicinvolvement/policy2003/finalpolicy.pdf.
EPA, 1999, Report of the Title VI Implementation Advisory Committee:
Next Steps for EPA, State and Local Environmental Justice Programs,
Office of Environmental Cooperative Management, Washington, DC
20460, http://www.epa.gov/ocem/nacept/titleVI/titlerpt.html.
[[Page 14217]]
EPA, 1999, Brownfields Title VI Case Studies: Summary Report, Office
of Solid Waste and Emergency Response, Washington, DC, EPA 500-R-99-
003, http://www.epa.gov/oswer/ej/ejndx.htm#titlevi.
EPA, 2002, Superfund Community Involvement Toolkit, Office of Solid
Waste and Emergency Response, Washington, DC, EPA 540-K-01-004,
http://www.epa.gov/superfund/tools/index.htm.
EPA, 2004, Guidance to Environmental Protection Agency Financial
Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficiency
Persons, http://www.epa.gov/civilrights/lepaccess.htm.
EPA, 1996, RCRA Expanded Public Participation Rule, Office of Solid
Waste, Washington, DC, 40 CFR parts 9, 124 & 270, http://www.epa.gov/epaoswer/hazwaste/permit/pubpart.htm.
EPA, 1996, RCRA Public Participation Manual, Office of Solid Waste,
Washington, DC http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manual.htm.
EPA, 2002, Enhancing Facility-Community Relations, Office of Solid
Waste, Washington, DC, EPA/530/F-02-037, http://www.epa.gov/epaoswer/hazwaste/tsds/site/f02037.pdf).
EPA, 2000, Social Aspects of Siting RCRA Hazardous Waste Facilities,
Office of Solid Waste and Emergency Response, Washington, DC,
EPA530-K-00-005, http://www.epa.gov/epaoswer/hazwaste/tsds/site/k00005.pdf.
DOE, 1999, How to Design a Public Participation Program, Office of
Intergovernmental and Public Accountability (EM-22) Washington DC,
http://web.em.doe.gov/ftplink/public/doeguide.pdf.
EPA, 2000, Engaging the American People: A Review of EPA's Public
Participation Policy and Regulations with Recommendations for
Action, Office of Policy, Economics, and Innovation, Washington, DC,
EPA 240-R-00-005, http://www.epa.gov/stakeholders/pdf/eap_report.pdf.
EPA, 2001, Community Involvement Policy Directive 9230.0-99: Early
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Community Response, Washington, DC, http://www.epa.gov/superfund/resources/early.pdf.
EPA, 1990, Community Involvement Policy Directive 9230.0-08:
Planning for Sufficient Community Relations, Office of Solid Waste
and Community Response, Washington, DC, http://www.epa.gov/superfund/tools/cag/directives/planning.pdf.
EPA, 2003, Moving Towards Collaborative Problem-Solving: Business
and Industry Perspectives and Practices on Environmental Justice,
Office of Environmental Justice, Washington, DC, EPA/300-R-03-003,
http://www.epa.gov/compliance/resources/publications/ej/ej_annual_project_reports.html.
NAPA, 2002, Models for Change: Efforts by Four States to Address
Environmental Justice, National Academy of Public Administration,
Washington, DC.
EPA, 1990, Sites for Our Solid Waste: A Guidebook for Effective
Public Involvement, Office of Solid Waste, Washington, DC, http://www.epa.gov/epaoswer/non-hw/muncpl/sites/toc.pdf.
IAP2, 2003, Planning for Effective Public Participation,
International Association for Public Participation, The Perspectives
Group, Alexandria, VA., http://www.theperspectivesgroup.com.
EPA, 1995, The Decision Maker's Guide to Solid Waste Management,
Volume II, Office of Solid Waste and Emergency Response, Washington,
DC, EPA530-R-95-023, http://www.epa.gov/epaoswer/non-hw/muncpl/dmg2.htm.
EPA, 2000, Public Involvement in Environmental Permits: A Reference
Guide, Office of Solid Waste and Emergency Response, Washington, DC,
EPA-500-R-00-007, http://www.epa.gov/epaoswer/hazwaste/permit/epmt/publicguide.pdf.
EPA, 2003, 2001-2002 Biennial Report: Constructive Engagement and
Collaborative Problem-Solving, Office of Environmental Justice,
Washington, DC, EPA 300-R-03-001, http://www.epa.gov/compliance/resources/publications/ej/ej_annual_project_reports.html.
ELI, 2001, Opportunities for Advancing Environmental Justice: An
Analysis of U.S. EPA Statutory Authorities, Environmental Law
Institute, Washington, DC, ISBN No. 1-58576-031-5. ELI Project No.
981623, http://www.eli.org.
State and Environmental Dispute Resolution Programs, http://www.policyconsensus.org.
U.S. Department of Justice ADA Home Page, http://www.usdoj.gov/crt/ada/adahome1.htm.
U.S. Department of Justice ADA Title II Technical Assistance Manual
Covering State and Local Government Programs and Services, http://www.usdoj.gov/crt/ada/taman2.htm.
U.S. Department of Education Disability and Business Technical
Assistance Centers, http://www.adata.org.
U.S. Department of Labor Job Accommodation Network, http://www.jan.wvu.edu (``State and Local Government Employers'').
U.S. Access Board, http://www.access-board.gov.
The New Freedom Initiative's Online Resource for Americans with
Disabilities, http://www.DisabilityInfo.gov, (``Community Life-
Accessibility and State and Local Governments'').
[FR Doc. 06-2691 Filed 3-20-06; 8:45 am]
BILLING CODE 6560-50-P