NCD980602163_20000627_Warren County PCB Landfill_SERB C_USEPA - Warren County PCB Landfill_SERB C_Federal Register - Part II, EPA - Draft Title VI Guidance-OCR

Tuesday,
June 27, 2000
Part II
Environmental
Protection Agency
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
39650 Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices
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.
SUMMARY: EPA today released two draft
guidance documents to clarify for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DATES: Comments on the two draft
guidance documents must be received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: [e-mail]. 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
[phone].
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 EP A'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
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 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
39652 Federal Register/ Vol. 65 , No . 124 /Tuesday, June 2 7, 2000 IN otices
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 ofEPA'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
Federal Register/Vol. 65 , No. 124/Tuesday, June 27 , 2000/Notices 39653
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
a~so 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
39654 Federal Register/Vol. 65 , No. 124/Tuesday, June 27 , 2000/Notices
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: [e-mail]. 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 [phone],
Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices 39655
or send an e-mail message to
[e-mail] 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
1 The underlined terms are defined or explained
in the attached Glossary.
amended (Title VI) and EP A'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.
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
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.
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
ofEPA's Title VI implementing
regulations with respect to your
2 Civil Rights Act of 1964, Public Law 88-352, 78
Stat. 241 (codified as amended in scattered sections
of 42 U.S.C.).
• 42 U.S.C. 2oood-1.
• Alexander v. Choate, 469 U.S. 287, 292-94
(1985).
5 38 FR 17968 (1973), as amended by 49 FR 1656
(1984) (codified at 40 CFR part 7).
• 40 CFR 7.35(b).
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.
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
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.
39656 Federal Register/Vol. 65, No. 124/Tuesday, June 27 , 2000/Notices
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/civilrightsl
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: a
• The guiding principles were adapted. in part,
fr?m the consensus principles identified by the
Title VI Implementation Advisory Committee under
• 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 ~dverse disparate impacts.
• Meanmgful 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,
EPA's National Advisory Council for Environmental
Policy and Technology.
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 H.B.
below, implement some of the more
comprehensive approaches described in
section II.A., or develop and implement
approaches or activities not listed in
Federal Register/Vol. 65 , No. 124/Tuesday, June 27 , 2000/Notices 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.
Anotlier 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).
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.
As a recipient, you determine the
proper mix and extent of appropriate
• See sections V.B.2. of the Draft Revised
Investigation Guidance (discussing duo weight and
any subsequent reliance OCR may give in the
course of its investigation to area-specific
agreements).
10 See section U.B.5. (discussing ADR).
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
39658 Federal Register/Vol. 65 , No. 124 /Tuesday, June 27 , 2000/Notices
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
• A voids 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
• Provides clear explanations and
reasons for the decisions made with
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 DO)'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.
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!sepl);
• 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/ofalejepa.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:/ I
www.epa.gov/epaoswer!hazwastel
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
Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices 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.html.
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.
Some of the information on sources
and stressors, which are available in
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.
EPA's regulatory program databases,
include the following: 14
• 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/epaoswerl
hazwaste/data/);
• RCRIS handlers (including large
and small quantity generators;
treatment, storage and disposal
facilities; and transporters) (http:/ I
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 :I /www.epa.gov I
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);
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.
• 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/
srmpdcdlowaloverview$.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!BASINSI);
• 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/safewaterlprotect/
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/
ttnuatwllurbanlnata/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
39660 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 I N otices
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/reisite 1 /fl sh card/
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
signifi cant.
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.
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
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.
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
• An introduction to risk assessment
concepts contained in the brochure, Air
Pollution and Health Risk (http://
www.epa.gov/oar/oaqpslair_risc
/3_90_022.htm[);
• 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);
16 See Draft Revised Investigation Guidance ,
section VI (regarding how EPA expects to conduct
and adverse disparate impact analysis in a
complaint investigation).
Federal Register/Vol. 65 , No. 124/Tuesday, June 27 , 2000/Notices 39661
• The SAB December 1998 report17
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/civilrightslinvestig.htm);
and
• 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
17 An SAB Report: Review of Disproportionate
Impact Methodoligies; A Review by the Integrated
Human Exposure Committee (IHEC) of the Science
Advisory Board (SAB).
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.
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
18 See Draft Revised Investigation Guidance ,
section Vl.8.5. (discussing how EPA expects to
conduct disparity analyses in Title VI
investigations).
19 In 2000, tho 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.
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.
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.
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-dol-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 Al through
87 found at http://www.epa.gov/civilrights/
shinfileapr98.htm , table-al. pdf through table-
b. 7. pdf.
22 See, e.g., Shin tech Demographic Information,
April 1998, last column in Tables Cl through C5
found at http://www.epa.gov/civilrightsl
shinfileap98.htm , table-cl.pdfthrough table-c5.pdf.
39662 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices
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
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
23 See Draft Revised Investigation Guidance .
section VI.B.6. (discussing how EPA expects to
assess the significance of disparity in Title VI
investigations).
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: [phone], 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/erladrguide/
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:
• 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
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.
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 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
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.")
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:
• Ability to supplement the
recipient's analysis or to investigate the
issues de nova;
• 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.
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
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.
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/bflhtml-doc/
apappg00.htm#guide.
EPA also intends to consider other
available information, including
information submitted by complainants
when investigating Title VI complaints.
If EP A'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,
39664 Federal Register/Vol. 65 , No. 124/Tuesday, June 27, 2000/Notices
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
SAE-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.or&lecos).
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 80Q-490-9198 and is
available at http://www.epa.gov/
swerosps/bflhtml-docl
apappg00.htm#guide).
EPA, 1998, Draft Revised Demographic
Information, Title VJ 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!ofalejepa.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 .0.
Box 42419, Cincinnati, OH 45 242-
2419 or call 80Q-490-9198) and is
also available at http://
www.epa.gov/oeca/sepl).
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/epaoswerl
hazwaste/permitlpubpart.
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/oarloaqps/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 ofEvaluation 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
lO0Q-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 .e pa .gov I oeca/main/ ej/
index.html).
OPM, 1999, Alternative Dispute
Resolution: A Resource Guide, July
1999, U.S. Office of Personnel
Management, Washington, DC
Federal Register/Vol. 65 , No . 124/Tuesday, June 27 , 2000/Notices 39665
PLAN, 1998, Writing User-Friendly
Documents, Plain Language Action
Network (available at http://
www.plainlanguage.gov).
SAB, 1999, An SAE 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
Term
Accuracy
Adverse Impact .................................................. .
Affected Population ............................................ .
Ambient Standards ........................................... ..
Ambient .............................................................. .
Attainment Area ................................................ ..
Benchmark ......................................................... .
Brownfields ........................................................ .
Carcinogen ......................................................... .
Chronic Toxicity ................................................. .
Comparison Population ..................................... .
Criteria Pollutants .............................................. .
Cumulative Exposure ........................................ ..
Cumulative Impact ............................................. .
Disparity (Disparate Impact) ............................. ..
Due Weight ....................................................... ..
Environmental Council of States (ECOS) ........ ..
Exposure ............................................................ .
Exposure Pathway ............................................. .
Exposure Route ................................................. .
Exposure Scenario ............................................ .
Financial Assistance .......................................... .
General Population ............................................ .
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/civilrightsl
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.
Definition
The measure of the correctness of data, as given by the difference between the measured
value and the true or standard value.
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.
A population that is determined to bear an adverse impact from the source(s) at issue.
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).
Any unconfined portion of a water body, land area, or the atmosphere, such as the open air or
the environment surrounding a source.
An area considered to have air quality as good as or better than the national ambient air qual-
ity 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).
A value used as a standard for comparison. Several types used in Title VI investigations in-
clude benchmarks of exposure level, risk, and significance. (See also RfC, RfD, threshold)
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.
A chemical or other stressor capable of inducing a cancer response.
The capacity of a substance to cause long-term harmful health effects.
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.
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" de-
rives from the requirement that EPA must describe the characteristics and potential health
and welfare effects of these pollutants in "criteria." See CAA section 108.
Total exposure to multiple environmental stressors (e.g., chemicals), including exposures origi-
nating from multiple sources, and traveling via multiple pathways over a period of time.
The harmful health or other effects resulting from cumulative exposure.
A measurement of a degree of difference between population groups for the purpose of mak-
ing a finding under Title VI. Disparities may be measured in terms of the respective com-
position (demographics) of the groups, and in terms of the respective potential level of expo--
sure, risk or other measure of adverse impact.
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, com-
pleteness, consistency, and uncertainties. Where evidence or agreements prove to be tech-
nically satisfactory, OCR may rely upon that information rather than attempting to duplicate
the analysis.
The Environmental Council of States (ECOS) is a national non-partisan, nonprofit association
of state and territorial environmental commissioners.
Contact with, or being subject to the action or influence of, environmental stressors, usually
through ingestion, inhalation, or dermal contact.
The physical course a chemical or other stressor takes from its source to the exposed recep-
tor (See also Exposure Route).
The avenue by which a chemical or other stressor comes into contact with an organism (e.g.,
inhalation, ingestion, dermal contact).
A set of facts, assumptions, and inferences about how exposure takes place that aids in eval-
uating, estimating, or quantifying exposures (e.g., exposure pathway, environmental condi-
tions, time period of exposure, receptor lifetime, average body weight).
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 oth-
erwise 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) Trans-
fers 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.
A comparison population that consists of the total set of persons in a jurisdiction or area of po-
tential impact, including an affected population.
39666 Federal Register/ Vol. 65 , No . 124 /Tuesday, June 2 7, 2000 IN otices
Term Definition
GIS (Geographic Information System)
Hazard ............................................................... .
Hazard Index ..................................................... .
Hazard Quotient ................................................. .
Hazardous Air Pollutant (HAP) .......................... .
Health Outcome ................................................. .
Impact ................................................................ .
Informal Resolution ............................................ .
Measure of Impact ............................................. .
Media or Medium ............................................... .
Mitigation ............................................................ .
Mobile Source .................................................... .
Model/Modeling/Modeled ................................... .
National Ambient Air Quality Standards
(NAAQS).
New Permit ........................................................ .
Non-Affected population .................................... .
Non-Attainment Area ......................................... .
Non-Point Source .............................................. .
Noncompliance .................................................. .
Offsets ................................................................ .
Pathway (exposure) ........................................... .
Pattern (of disparate impact) ............................. .
Permit ................................................................. .
Plain Language Action Network ........................ .
Point Source ...................................................... .
Pollution Prevention ........................................... .
Potency Factor ................................................... .
Receptor ............................................................ .
Recipient ............................................................ .
Reference Area .................................................. .
An organized computer system designed to efficiently capture, analyze, and display informa-
tion 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 con-
venient visual analysis.
The degree of potential for a stressor to cause illness or injury in a receptor, or the inherent
toxicity of a compound.
A summation of hazard quotients for multiple chemicals; a measure of cumulative risk for sub-
stances which exhibit a threshold for toxicity.
The ratio of a single substance exposure level to a reference dose or benchmark for that sub-
stance. An exposure at the same concentration as the reference dose would have a hazard
quotient of 1.
Air toxics which have been specifically listed for regulation under Clean Air Act section 112.
A measure of disease rate or similar impact, such as age-adjusted cancer death rate.
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 se-
verity of the impact may depend on the magnitude and frequency of exposure, and other
factors affecting toxicity and receptor sensitivity.
Any settlement of complaint allegations prior to the issuance of a formal finding of noncompli-
ance by EPA.
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).
Specific environmental compartments such as air, water, or soil, that are the subject of regu-
latory concern and activities.
Measures taken to reduce or eliminate the intensity, severity or frequency of an adverse dis-
parate impact.
Any non-stationary source of air pollution such as cars, trucks, motorcycles, buses, airplanes,
ships or locomotives.
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.
Standards established by EPA pursuant to Clean Air Act section 109 that apply for outdoor air
throughout the country. (See criteria pollutants)
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 oper-
ation 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., exist-
ing air emission permit). (See penni~.
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).
Area that does not meet one or more of the National Ambient Air Quality Standards for the cri-
teria pollutants designated in the Clean Air Act.
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).
A finding by EPA that a recipient's program or activities do not meet the requirements of
EPA's Tille VI implementing regulations.
A concept whereby emissions from proposed new or modified stationary sources are balanced
by reductions from existing sources to stabilize total emissions.
The physical course a chemical or other stressor takes from its source to the exposed recep-
tor (See also Exposure Route).
An allegation or finding that multiple sources of a certain type are consistently associated with
likely adverse impacts to a protected group.
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 (PLAN) is a government-wide group working to improve com-
munications from the federal government to the public.
A stationary location or fixed facility from which pollutants are discharged; any single identifi-
able source of a stressor (e.g., a pipe, ditch, small land area, pit, stack, vent, building).
The practice of identifying areas, processes, and activities that create excessive waste prod-
ucts or stressors, and reducing or preventing them from occurring through altering or elimi-
nating a process or activity.
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.
An individual or group that may be exposed to stressors.
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.
An area from which one or more comparison populations are drawn for conducting a disparity
analysis.
Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices 39667
Term Definition
Reference Dose . . .. . .. . .. . .. .. . .. .. .. . . .. .. . .. .... .... .... .. .. .. . See RfC and RfD.
Release ...... ..... .... .............. ............. ... ........... ....... The introduction of a stressor to the environment, where it may come in contact with recep-
tors. Includes, among other things, any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environ-
ment.
RfC (inhalation reference concentration) ............ An estimate (with uncertainty 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 environ-
ment by the actual or potential presence and/or use of specific stressors. This involves a de-
termination 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., fac-
tory, incinerator, landfill, storage tank, field, vehicle).
Statistical Significance ... ................ ........... .......... An inference that there is a low probability that the observed difference in measured or esti-
mated 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
39668 Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices
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
VIL 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 regulations28 alleging
discriminatory effects resulting from the
issuance of pollution control permits 29
by recipients of EPA financial
assistance.
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).a 1 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
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.
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
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." aa
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.
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
Federally Assisted Programs, p.12 Uune 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.
,. 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.
3s 38 FR 17968 (1973), as amended by 49 FR 1656
(1984) (codified at 40 CFR part 7).
"40 CFR 7.35(b).
•• 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, DO). which is charged
with coordinating the Federal government's Title VI
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 Act41
permits, underground injection 42
permits, and Resource Conservation and
Recovery Act43 permits for treatment,
storage, and disposal.44
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
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. •° Federal Water Pollution Control Act, 33 U.S.C.
1251 to 1387.
◄1 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.
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 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.
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
•s 40 CFR 7.130(a).
46 ld.
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:
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.
• 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
•• 42 U.S.C. zoood-4a.
39670 Federal Register/Vol. 65 , No. 124/Tuesday, June 27 , 2000/Notices
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.
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 EP A'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
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).
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 Vl.B.2. (discussing scope of
investigation).
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
A. Summa!}' 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
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
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
56 See section IV (discussing informal resolution).
57 See 28 CFR 42.101 to 42.112 (DO)'s regulations
implementing Title VI); 28 CFR 42.401 to 42.415
(DO)'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).
56 40 CFR 7.120(c).
59 40 CFR 7.120(d)(1l(iii).
60 See section Ill.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.
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.
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.
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
62 40 CFR 7.120(d)(1)(i), (ii).
63 40 CFR 7.120(d)(1).
64 40 CFR 7.125.
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).
6940 CFR 7.115(c).
Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 /Notices 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 (A ward
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
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
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.7s
70 40 CFR 7.115(c).
71 Id.
72 40 CFR 7.115(d).
"Id.
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.
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
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
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.
76 40 CFR 7.130(b).
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).
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
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 ofreceiving 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
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
78 40 CFR 7.85(b), (0.
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.
•0 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).
39672 Federal Register/Vol. 65 , No. 124 /Tuesday, June 27 , 2000/Notices
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).
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); as
(2) It identifies the entity that
allegedly performed the discriminatory
act 8 7 and describes the alleged
84 See 40 CFR 7.15.
85 See 40 CFR 7.120.
8840 CFR 7.120(b)(l).
87 Because EPA's Title VI regulations apply only
to recipients of EPA financial assistance, OCR will,
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
(3) It is filed within 180 calendar days
of the alleged discriminatory act(s); 89
and
( 4) It is filed by:
(a) A person who was allegedly
discriminated against in violation of
EPA 's Title VI regulations;
(bl A person who is a member of a
specific class of people that was
allegedly discriminated against in
violation of EP A'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
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.
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
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
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.
8840 CFR 7.120(b)(l).
"40 CFR 7.120(b)(2); see also section lll.B.
(discussing timeliness of complaints).
9040 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.
91 40 CFR 7.120(d)(l).
92 40 CFR 7.120(d)(l)(ii).
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.
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.
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
93 See Sections V.B.2. and Vl.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 lll.A.
95 40 CFR 7.120(b)(2). It should be emphasized
that "180 calendar days" is not the same as "six
months.''
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 39673
program either at that point in time or
at some future date.96
. 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.
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.
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
••see, 40 CFR 7.110, 7.115.
0140 CFR 7.120(b)(2).
98 ln other words, OCR may dismiss the
complaint, but that dismissal would not prohibit
the complainant from re-filing its complaint at a
later date.
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
99 40 CFR 7.120(d)(2).
100 40 CFR 7.115(!).
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
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.
1o1 See Draft Recipient Guidance, Section 11.B.5.
(providing additional information about alternative
dispute resolution).
39674 Federal Register/Vol. 65, No . 124/Tuesday, June 27 , 2000/Notices
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.
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.
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,
102 See Draft Recipient Guidance, section 11.B.6.
(providing additional information about remedial
measures).
103 See Draft Recipient Guidance, section 11.B.4.
(providing additional information about
intergovernmental involvement).
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.
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.
10• See sections V.B.2. and VI.B.t.b. (discussing
area-specific agreements); see also, Draft Recipient
Guidance, section 11.A.2. (describing geographic
area-specific approaches).
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
10s 42 U.S.C. 2000d-1.
10• 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 Uan. 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.").
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 39675
to the processing of Title VI complaints,
EPA is required to retain the:
• Ability to supplement the
recipient's analysis or to investigate the
issues de nova;
• Approval authority over any
proposed resolution; and
• Ability to initiate its own
enforcement actions and compliance
reviews.
1. Analyses or Studies 107
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.
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.
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.
10• 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 Il.C. contains
a discussion of the circumstances under which OCR
might accord a public participation process due
weight.
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.
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.
10• See Draft Recipient Guidance , section ll.A.2.
(discussing area-specific agreements).
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
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
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 Vl.B.2 through
4.
39676 Federal Register/Vol. 65 , No . 124/Tuesday, June 27 , 2000/Notices
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 EP A'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.
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
111 See 40 CFR 7.120.
investigation, reject, request
clarification, or refer all of the
allegations within 20 calendar days of
receipt of the most recent allegations.112
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.
112 40 CFR 7.120(d)(1).
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
• 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.
1 u See section V.B.2. (discussing criteria for area-
specific agreements that would receive due weight).
Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices 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
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
11• 40 CFR 7.120. See also section lll.A.
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
(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
(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
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
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.
116 Assessing a significant overall decrease would
entail taking into account factors such as total
quantity and relative toxicity of the emissions
reductions.
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 tho 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.
116 A recipient may use actual monitoring data,
reasonable estimates, permit limits, parametric
monitoring, or any other reliable means to
demonstrate the decrease to tho 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.
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. ·
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).
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.
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
121 See 40 CFR 7.110. 7.115.
122 See section V.B.2. (discussing criteria for area-
specific agreements that would receive due weight).
39678 Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices
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
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 stress ors from
permitted activities and sources.
b. Determine Universe of Sources: In
performing assessments of potential
123 See section VII (discussing findings of
noncompliance).
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.
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.
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).
Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices 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.
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 stern 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
1 zs 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/civilrightsl
invesUg.htm.
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
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
125 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.
39680 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 /Notices
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 ofrisk
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.
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
12• For further discussions of this issue, see the
preceding footnote.
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 Ambien t Air
Quality Standards: EPA and the states
have promulgated a wide series of
regulations to implement public health
protections. Some ofthese 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
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).
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 39681
met. In such cases, the presumption of
no adverse impacts from lead could be
overcome.130
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.
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 EP A'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.
The impacts from permitted entities
and other sources are not always
distributed in a predictable and uniform
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.
131 See section Vll.A.3. (discussion of voluntary
compliance).
1,z 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.
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
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.
issue, as well as those in other areas of
estimated cumulative adverse impacts.
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
• The demographic characteristics of
most likely affected (e.g., highest 5% of
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/shinfileopr98.htm ,
files t--<101-10.pdf, t-dtl-20.pdf, t-d21-30.pdf, t-
d31-40.pdf.
39682 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices
risk or measure of adverse impact) to
least likely affected (e.g., lowest 5%) 135
• 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
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
• 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
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.
136 See, e.g., Shin tech Demographic Information .
April 1998, the last column in Tables Al through
B7 found at http://www.epa.gov/civiirights/
· shinfileapr98.htm, table-al.pdf through table-
b.7.pdf.
137 See, e.g., Shintech Demographic Information ,
April 1998, last column in Tables Cl through C5
found at http://www.epa.gov/civilrightsl
shinfileapr98.htm, table-cl .pdfthrough table-
c5.pdf.
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.
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
136 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%.
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).
Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices 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
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
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.
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
142 See section VI. B. 2. ( discussing defining the
scope of an investigation).
143 40 CFR 7.115(c), (d).
"4 40 CFR 7.115(d).
14, 40 CFR 7.115(e), 7.130(b).
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.
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
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.
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 measures151 associated with
w 40 CFR 7.120(d)(1l(ii).
14• 40 CFR 7.115(d)(2).
149 Sec Donnelly v. Rhode Island Bd. of Governors
for Higher Educ. , 929 F. Supp. 583, 593 (D.R.!.
1996), afrd 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).
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.
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.
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.
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
152 See section VI.B.2.a. (discussing the scope of
recipient's authority).
153 40 CFR 7.115(e); 7.130(b)(1).
m 40 CFR 7.130(bl(2)(i), (ii).
39684 Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices
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
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
Accuracy
Adverse Impact ............................. ..
Affected Population ........................ .
Ambient Standards ........................ .
Ambient ......................................... ..
Attainment Area ............................. .
Benchmark ..................................... .
Brownfields .................................... ..
Carcinogen .................................... ..
Chronic Toxicity ............................. .
Comparison Population .................. .
Criteria Pollutants ........................... .
Cumulative Exposure ..................... .
Cumulative Impact ......................... .
Disparity (Disparate Impact) .......... .
Due Weight .................................... .
Environmental Council of States
(EGOS).
Exposure ........................................ .
Exposure Pathway ......................... .
Exposure Route ............................. .
Exposure Scenario ......................... .
Financial Assistance ...................... .
155 40 CFR 7.130(b)(2)(ii).
ts•40 CFR 7.130(b)(3)(i).
Definition
The measure of the correctness of data, as given by the difference between the measured value and the
true or standard value.
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.
A population that is determined to bear an adverse impact from the source(s) at issue.
A level of pollutants prescribed by regulations that are not to be exceeded during a given lime in a defined
area. (e.g., National Ambient Air Quality Standards.)
Any unconfined portion of a water body, land area, or the atmosphere, such as the open air or the environ-
ment surrounding a source.
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-attain-
ment area for others. (See also non-attainment area.)
A value used as a standard for comparison. Several types used in Title VI investigations include bench-
marks of exposure level, risk, and significance. (See also RfC, RfD, threshold.)
Abandoned, idled, or under-used industrial and commercial facilities/sites where expansion or redevelop-
ment is complicated by real or perceived environmental contamination. They can be in urban, suburban,
or rural areas.
A chemical or other stressor capable of inducing a cancer response.
The capacity of a substance to cause long-term harmful health effects.
A population selected for comparison with an affected population in determining whether the affected pop-
ulation is significantly different with respect to demographic characteristics or degree of adverse impact.
The 1970 Clean Air Act (CAA) required EPA to set National Ambient Air Quality Standards for certain pol-
lutants 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 sec-
tion 108.
Total exposure to multiple environmental siressors (e.g., chemicals), including exposures originating from
multiple sources, and traveling via multiple pathways over a period of time.
The harmful health or other effects resulting from cumulative exposure.
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.
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.
The Environmental Council of States (EGOS) is a national non-partisan, nonprofit association of state and
territorial environmental commissioners.
Contact with, or being subject to the action or influence of, environmental stressors, usually through inges-
tion, inhalation, or dermal contact.
The physical course a chemical or other stressor takes from its source to the exposed receptor (See also
Exposure Route.)
The avenue by which a chemical or other stressor comes into contact with an organism (e.g., inhalation,
ingestion, dermal contact).
A set of facts, assumptions, and inferences about how exposure takes place that aids in evaluating, esti-
mating, or quantifying exposures (e.g., exposure pathway, environmental conditions, time period of expo-
sure, receptor lifetime, average body weight).
Any grant or cooperative agreement, loan, contract (other than a procurement contract or a contract of in-
surance 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.
157 Id.
ts8 Id.
m 40 CFR 7.130(b)(3)(ii).
180 40 CFR 7.130(b)(3)(iii).
Federal Register/Vol. 65 , No . 124/Tuesday, June 27 , 2000/Notices 39685
Term
General population ......................... .
GIS (Geographic Information Sys-
tem).
Hazard ........................................... ..
Hazard Index .................................. .
Hazard Quotient ............................ ..
Hazardous Air Pollutant (HAP) ...... .
Health Outcome ............................ ..
Impact ............................................ .
Informal Resolution ........................ .
Measure of Impact ......................... .
Media or Medium ........................... .
Mitigation ........................................ .
Mobile Source ................................ .
Model/Modeling/Modeled .............. ..
National Ambient Air Quality Stand-
ards (NAAQS).
New Permit ................................... ..
Non-affected population ................ ..
Non-Attainment Area .................... ..
Non-Point Source .......................... ..
Noncompliance .............................. .
Offsets ........................................... ..
Pathway (exposure) ...................... ..
Pattern (of disparate impact) ........ ..
Permit ............................................ ..
Plain Language Action Network .... .
Point Source ................................. ..
Pollution Prevention ....................... .
Potency factor ............................... ..
Receptor ......................................... .
Recipient ....................................... ..
Reference area .............................. .
Reference dose ............................. ..
Release ......................................... ..
Definition
A comparison population that consists of the total set of persons in a jurisdiction or area of potential im-
pact, including an affected population.
An organized computer system designed to efficiently capture, analyze, and display information in a geo-
graphically 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.
The degree of potential for a stressor to cause illness or injury in a receptor, or the inherent toxicity of a
compound.
A summation of hazard quotients for multiple chemicals; a measure of cumulative risk for substances
which exhibit a threshold for toxicity.
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.
Air toxics which have been specifically listed for regulation under Clean Air Act section 112.
A measure of disease rate or similar impact, such as age-adjusted cancer death rate.
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 de-
pend on the magnitude and frequency of exposure, and other factors affecting toxicity and receptor sen-
sitivity.
Any settlement of complaint allegations prior to the issuance of a formal finding of noncompliance by EPA.
A measure used in evaluating the significance of an impact, which may involve the general likelihood, fre-
quency, rate or number of instances of the occurrence of an impact. (See risk, which is similar, but ex-
pressed as a numeric probability of occurrence.)
Specific environmental compartments such as air, water, or soil, that are the subject of regulatory concern
and activities.
Measures taken to reduce or eliminate the intensity, severity or frequency of an adverse disparate impact.
Any non-stationary source of air pollution such as cars, trucks, motorcycles, buses, airplanes, ships or lo-
comotives.
A set of procedures or equations (usually computerized) for estimating or predicting a value, e.g., the am-
bient environmental concentration of a stressor. Also, the act of using a model.
Standards established by EPA pursuant to Clean Air Act section 109 that apply for outdoor air throughout
the country. (See criteria pollutants.)
For the purposes of this guidance, the term "new permits" refers to the initial issuance of any permit, in-
cluding 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 fa-
cility's existing permits (e.g., existing air emission permit). (See permi~.
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).
Area that does not meet one or more of the National Ambient Air Quality Standards for the criteria pollut-
ants designated in the Clean Air Act.
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 dis-
posal, and areas where collective pollution due to everyday use can be washed off by precipitation, such
as city streets. (See also point source).
A finding by EPA that a recipient's program or activities do not meet the requirements of EPA's Title VI im-
plementing regulations.
A concept whereby emissions from proposed new or modified stationary sources are balanced by reduc-
tions from existing sources to stabilize total emissions.
The physical course a chemical or other stressor takes from its source to the exposed receptor (See also
Exposure Route).
An allegation or finding that multiple sources of a certain type are consistently associated with likely ad-
verse impacts to a protected group.
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 (PLAN) is a government-wide group working to improve communications
from the federal government to the public.
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).
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.
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.
An individual or group that may be exposed to stressors.
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 assist-
ance 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.
An area from which one or more comparison populations are drawn for conducting a disparity analysis.
See RfC and RfD.
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.
39686 Federal Register/Vol. 65 , No . 124/Tuesday, June 27 , 2000/Notices
Term
RfC (inhalation reference con-
centration).
RfD (oral reference dose)
Risk ................................................ .
Risk Assessment ........................... .
Science Advisory Board (SAB) ...... .
Significant ....................................... .
Source ............................................ .
Statistical significance ................... ..
Stressor .......................................... .
Threshold ...................................... ..
Toxicity ........................................... .
Unit risk factor .............................. ; ..
Universe of Sources ...................... .
Voluntary Compliance ................... ..
BILLING CODE 6560-50-P
Definition
An estimate (with uncertainty 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.
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.
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 (rep-
resenting 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.
Qualitative and quantitative evaluation of the risk posed to human health and/or the environment by the ac-
tual 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.
A group of external scientists who advise EPA on science and policy.
A determination that an observed value is sufficiently large and meaningful to warrant some action. (See
statistical significance).
The site, facility, or origin from which one or more environmental stressors originate (e.g., factory, inciner-
ator, landfill, storage tank, field, vehicle}.
An inference that there is a low probability that the observed difference in measured or estimated quan-
tities is due to variability in the measurement technique, rather than due to an actual difference in the
quantities themselves.
Any factor that may adversely affect receptors, including chemical (e.g., criteria pollutants, toxic contami-
nants), 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 di-
rectly from identifiable sources and (2) those produced in the air by interaction between chemicals (e.g.,
most ozone).
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 con-
tracting the disease.
The degree to which a substance or mixture of substances can harm humans or animals. (See chronic
toxicity).
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).
A category of relevant and/or nearby sources of similar stressors to those from the permitted activity in-
cluded in assessments of potential adverse disparate impacts.
Settlement between EPA and a recipient after a formal finding of noncompliance.
APPENDIX B:
Federal Register/Vol. 65, No. 124/Tuesday, June 27 , 2000/Notices
TITLE VI COMPLAINT PROCESS FLOW CHART
Title VI Complaint Process
40 CFR Part7
39687
• All days arc measured by
calendar days.
Complainl filed (within 180 days• of alleged discriminatory action I.
§7.l20(a) & (b)
Complain! acknowleged by Office of Civil Rights (OCR) [within S days).
§7.120 (c)
Complaint reviewed by OCR.
Compl.a.inl accepted. Complainc referred {coordinate with
other agencies or msmiss complaint in
whole or part as appropriate J.
§7.l20(d) & §7.12S
Complaint dismissed.
Notice and opportunity for recipient to respond
(within 30 days of receipt). §7.1 IS(b)
r-------,
: No I I violation ,~----<
I found. I I I l ______ ..J
OCR invcsrigales complaint and attempU to rcs.olve it informally.
f7.l20(d)(2) & 7.ll5(c)-(e)
OCR issue5 preliminary findings and any recommendations for volunl.-y
compliance (within IIO days). §7.1 IS{c)
Complaint
dismissed.
I -----------------------I
: Recipient executes voluntary compliance ,-1 ----t
Preliminary recommendation of noncompliance. [Notice to
recipient, Assistant Attorney General for Civil Jtichts
(AAGCR), and Award Official (AO).] §7.I IS(c)
Complaint
dismissed.
: agrccmmt within 50 days. (Recipient ac,ccs
1 with OCR 's recommendation o( voluntary
: compliance or sufficiently rebuts findings. or
: proposes satisfactory plan to achieve -l compliance.] §7.IJS(d) Recipient fails to respond or comply.
I I L-----------------------------~ ,----------------, I Voluntary compliance: :
OCR issues formal determination of non-
compliance to recipient. AAGCR and AO (within
: within l O days. ;-----1 14 days]. §7.1 IS(d)
Complain!
dismissed. : §7.IIS{e) 1 • ________________ j
Recipient refuses to cornply. OCR initiates
17 .130 proceedings lo tennioatc funds.
§7.IIS(e)
r---------------------1 I I
Notice to recipient to request, within 30 days, a<kninistrative hearing before 1-----1' Recipient waives right to bearing. : L-----------_________ J Adminislrative Law Judge (AU). §7.IJO(bXI)
Recipient files written answer to OCR 's formal detcnninatioo of non-
compliance and reqtae$t$ adm..irust:r:ativc hearing within 30 days. AU issues
notice of procc.,:dings. f7.130(b X2)
r I
§-I ALJ finds no I ! violation. : L---------J
Hcaain& held •d AU issues determination.
AU finds non--compli•cc. Recipient appeals lo
Admmistta1ar within 30 days. §7.130(bX3)
I -------------I I Administrator rmc1s r
Funds terminated per OCR
determination.
§7.IJO(bX2) .t. (3J
' ··-----------------------7 I AlJ finds DQlrCOIDpliance and no appeal :
: by recipient or Administrator denies :
: appeal by recipient. f
~----------__________ j
Funds 1a111ina1cd.
§7.l30(b)(3)
Complaint
dismwed.
-I DO violation. I
Administralor acrecs to consider appeal by serving notice to recipient within
•~ days. Both panics submit wrinen statements 10 Administnloc. 7.130(bX3) L---------
Adrninistt"IIOr fuids aoo-<0mpliance and Olden Nnds 1mninaled and any
appropriate enfoo:emeol. Repons 10 CongTCSS. f7 .l30(bX3)
BILLING CODE 6560-50-C
39688 Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices
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 on! y 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
circumstan tiaJ.164
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,
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).
16, Id.
16• 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.).
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." 1•7
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 Vl.1 89 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
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
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
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.
16• 42 u.s.c. 2oood-1.
16• 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).
172 40 CFR 7.35(b) (emphasis added).
173 See Memorandum from Attorney General,
supra note 7, at 1-2.
Federal Register/Vol. 65 , No . 124/Tuesday, June 27, 2000/Notices 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. 1 74 In addition,
Congress relied on its authority under
the spending clause of the
Constitution,175 rather than its authority
under the commerce clause. 1 76 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.
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
174 For a further discussion of the legislative
history of Title VJ, see U.S. commission on Civil
Rights, Federal Title VJ Enforcement to Ensure
Nondiscrimination in Federa/Jy Assisted Programs
25-30 Uune 1996).
175 U.S. Const., art. I. section 8, cl. 1.
110 U.S. Const., art. I, section 8, cl. 3.
117110 Cong. Rec. S6546 (1964) (statement of Sen.
Humphrey).
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 thorn rule making
authority).
180 Executive Order 12250, 45 FR 72995 (1980).
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.
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
1B1 28 CFR 42.404(a).
182 Executive Order 12250, sectionl-402.
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.
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.
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
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."),
184 Motor & Equip. Mfg. Ass'n v. Nichols, 142 F.3d
449 (D.C. Cir. 1998); Mid-Tex Elec. Coop., Inc. v.
FERG, 773 F.2d 327 (D.C. Cir. 1985).
39690 Federal Register/Vol. 65, No . 124/Tuesday, June 27, 2000/Notices
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.
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
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
185 See Draft Revised Investigation Guidance .
section Vl.B.1.a.
18• Id.
187 Assessing a significant overall decrease would
entail taking into account factors such as total
quantity and relative toxicity of the emissions
reductions.
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.
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
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.
discrimination.189 Moreover, section 2-
2 of Executive Order 1289819° 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
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.
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.").
Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 /Notices 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
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.
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.
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
192 Although not determinative, compliance with
certain typos of environmental standards may play
a role in a Title VI investigation. See Draft Revised
Investigation Guidance section VI.B.4.b.
193 40 CFR 7.80(al(1).
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).
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
195 See Draft Recipient Guidance, section II.
Title VI and EPA's Title VI
implementing regulations without
exhausting their administrative
remedies.196
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
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.196 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
196 See Powell v. Ridge, 189 F.3d 387, 399 (3rd
Cir.), cert. denied, 120 S. Ct. 579 (1999).
197 See Draft Revised Investigation Guidance,
section Vl.B.2.a.
198 See Draft Recipient Guidance, section II.B.2.
(discussing factors that contribute to effective and
meaningful public participation).
39692 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 /Notices
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
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 ofrace, 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.
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,
199 See Draft Revised Investigation Guidance.
Appendix A (defining "due weight").
200 See Draft Recipient Guidance, section 11.B.2.
(discussing the circumstances under which OCR
might accord a public participation process due
weight).
201 See id .. section Il.B.2.
2oz See id., section II.A.2.
20, See id., section II.A.3.
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 complaint6. Neither
document creates any new substantive
rights nor establishes any binding legal
requirements.
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.
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
2°• Public Law 104-4, 109 Stat. 48 (1995)
(codified at 2 U.S.C. 1501 et seq. (Supp. III 1998)).
205 2 u.s.c. 1503(2).
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.
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
20• Office of Solid Waste and Emergency
Response, U.S. EPA, Brownfields Title VI Case
Studies: Summa,y Report 23 (1999).
Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices 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
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.
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,
207See Draft Revised Investigation Guidance,
section 11.B.1. [discussing when recipients can
provide information to OCR).
20• See Draft Revised Investigation Guidance,
section 11.B.2. (providing additional discussion
about a complainant's role in OCR's investigation).
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.
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
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.
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,
20• See Draft Revised Investigation Guidance,
section Il.A.1. See also 40 CFR 7.12O(d)(1).
210 See Draft Revised Investigation Guidance,
section 11.A.4. See also 40 CFR 7.115(d).
211 40 CFR 7.13O(b)(2).
212 40 CFR 7.13O(b)(3).
2" See Draft Revised Investigation Guidance,
section Il.B.2.
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 EP A'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 * * *."Asa result, EPA's Title
VI regulations are very similar to the
criteria applied by other agencies for
accepting and rejecting Title VI
complaints.
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
214 28 CFR 42.401-42.415.
39694 Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices
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
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:
• 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." 211
• 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
• In all other cases, the obligation
attaches "for as long as EPA assistance
is extended." 219
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 EP A's
Title VI regulations.
Use of Permit Appeal Processes
Other comments concerned the
relationship between Title VI
215 See Draft Revised Investigation Guidance,
section III.A.
21• 40 CFR 7.25.
217 40 CFR 7.80(a)(2)(i).
218 40 CFR 7.80(a)(2)(ii).
219 40 CFR 7.80(a)(2)(iii).
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
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.
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.22a
220 See Interim Guidance, at 6--7.
221 40 CFR 7.120(b)(2); Draft Revised Investigation
Guidance, section III.B. 2.
222 See Draft Revised Investigation Guidance,
section 111.B.3.
223 See Draft Revised Investigation Guidance,
section 111.B.4.
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.
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 stroJ?,gly
encourages all parties to seek early
resolution of their Title VI concerns.
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
224 See Draft Recipient Guidance, section II.A.
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).
Federal Register/Vol. 65 , No . 124/Tuesday, June 27 , 2000/Notices 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 Ti.tie 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.
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 Vl.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
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.
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).
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.
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: EP A'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.
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
231 28 CFR 42.408 (DO) Complaint Procedures; 40
CFR 7.120 (EPA Complaint Investigation).
232 See Draft Revised Investigation Guidance,
sections II & III.
233 See id., section II.A.I; see also, 40 CFR
7.120(c).
23◄ See 40 CFR 7.115(e); Draft Revised
Investigation Guidance, section ll.A.6.
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.
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.
Issue: Some commenters indicated
that under EP A'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.
Title VI burdens of proof in litigation
inform EPA of what information is
m 40 CFR 7.115(c)(1).
238See Draft Revised Investigation Guidance,
section V.B.
m 40 CFR 7.120(d)(l)(iii).
39696 Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices
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 plaintiffs showing, then there
is a violation of Title Vl.242 OCR intends
to apply a similar approach to its
investigations.
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:
(a) A person who was allegedly
discriminated against in violation of
EPA's Title VI regulations;
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.
2,0 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).
2" See 40 CFR 7.15.
244 See 40 CFR 7.120.
(bl 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
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.
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
245 See Draft Revised Investigation Guidance ,
section III.A. (describing criteria for accepting or
rejecting complaints).
246 Id., sections J.C. and JV.B.
247 40 CFR 7.120(d)(2).
resolution may follow either of the two
approaches discussed below.248
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
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 ofrecipients 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 comm enters 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
248 See Draft Revised Investigation Guidance ,
section IV.A.
249 See id., section JV.B.
250 40 CFR 7.120(d)(2). See Draft Revised
Investigation Guidance, section JV.
251 40 CFR 7.115(0), 7.130(b).
Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices 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.
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
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
252 40 CFR 7.130(a).
25, 40 CFR 7.130(b](2).
254 40 CFR 7.130(b](3](i).
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.
2s, 42 U.S.C. 2000d.
258 Public Law 100-259, 102 Stat. 28 (1988).
250 42 U.S.C. 2oood-4a.
assessment requirements), are part of a
program or activity covered by EPA's
regulations if the recipient receives any
funding from EPA.
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
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
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
2ao40 CFR 7.13D(b)(4).
261 See Memorandum from Attorney General
supra note 7, at 1.
262 Id.
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.
· 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
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.
263 Assessing a significant overall decrease would
entail taking into account factors such as total
quantity and relative toxicity of the emissions
reductions.
26< 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.
39698 Federal Register/Vol. 65, No. 124/Tuesday, June 27, 2000/Notices
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.
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.
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
267 See id., section Vl.B.1.a.
268 Id., section V.B.2.; Draft Recipient Guidance
sections 11.A.2. and 3.
269 See Draft Revised Investigation Guidance,
section V.B.2.
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.
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.
Other Issues
Issue: One commenter requei;ted that
EPA develop a Title VI complaint
process flowchart. Another commenter
requested clarification as to who would
be responsible for implementing the
Inferim Guidance.
270 40 CFR 7.130(b); Draft Revised Investigation
Guidance, section 11.A.6.
27140 CFR 7.130(a); Draft Revised Investigation
Guidance. section 11.A.6.
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
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
272 See Draft Revised Investigation Guidance .
section VI.
273 Id., section V!.B.4.
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.
Federal Register/ Vol. 65 , No. 124 /Tuesday, June 2 7, 2000 IN otices 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
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. 2 76 In fact, the Draft
Revised Investigation Guidance
specifically includes consideration of
health impacts in terms ofrisk.277
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.
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
276 Draft Revised Investigation Guidance , section
VI.B.4.
277 See Draft Revised Investigation Guidance ,
section VI.B.3.
278 Tho 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.
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.
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
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
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
210 See Draft Revised Investigation Guidance ,
section VI.B.5.
280 40 CFR 7.25.
2" Id. at n.1.
282 See Draft Revised Investigation Guidance ,
section VI.B.5.
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.zsa
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 ofrace,
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.
283 See Draft Revised Investigation Guidance,
sections VI.B.2. and 3.
39700 Federal Register/ Vol. 65, No. 124 /Tuesday, June 2 7, 2000 IN otices
Clarifications Regarding Disparity of
Impact
A number of commenters requested
additional details regarding the
disparate impact analysis. For instance,
comm enters 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.
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
284 Draft Revised Investigation Guidance sections
VI.B.5. and 6.
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. 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
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.2aa
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
28s 40 CFR 7.120(d)(2).
280 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).
257 See Draft Revised Investigation Guidance,
sections J.C. and IV.B.
288 Draft Revised Investigation Guidance, section
V.B.2.; Draft Recipient Guidance, section 11.A.2.
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
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
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.
Justification Issues
Issue: Some commenters requested
that EPA provide more detail as to what
would constitute an adequate
289 Draft Revised Investigation Guidance, section
IV.
290 See 40 CFR 7.120[d)(2).
291 See Draft Revised Investigation Guidance,
section IV; Draft Recipient Guidance, section 11.B.6.
292 Id.
293 40 CFR 7.130(a).
294 40 CFR 7.115(e) [indicating that recipient may
voluntarily comply after formal determination of
noncompliance).
Federal Register/ Vol. 65 , No . 124 /Tuesday, June 2 7, 2000 IN otices 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.
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
29s See Draft Revised Investigation Guidance,
section VII.A.
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.
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
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).
297 See Draft Revised Investigation Guidance,
section IV.
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.
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.
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
290 See Draft Revised Investigation Guidance,
sections II.B. and V.A.