39650 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

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two draft guidance documents should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: civilrights@epa.gov. Please

include your name and address, and,

optionally, your affiliation.

FOR FURTHER INFORMATION CONTACT:

Yasmin Yorker, US Environmental

Protection Agency, Office of Civil Rights

(1201A), 1200 Pennsylvania Avenue

NW., Washington, DC, 20460, telephone

(202) 564–7272.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Preamble

B. Draft Title VI Guidance for EPA

Assistance Recipients Administering

Environmental Permitting Programs

(Draft Recipient Guidance)

C. Draft Revised Guidance for

Investigating Title VI Administrative

Complaints Challenging Permits

(Draft Revised Investigation

Guidance)

D. Summary of Key Stakeholder Issues

Concerning EPA Title VI Guidance

A. Preamble

Today’s Federal Register document

contains two draft guidance documents

on which the U.S. Environmental

Protection Agency (EPA) is seeking

public comment. The first is the Draft

Title VI Guidance for EPA Assistance

Recipients Administering

Environmental Permitting Programs

(Draft Recipient Guidance). The second

is the Draft Revised Guidance for

Investigating Title VI Administrative

Complaints Challenging Permits (Draft

Revised Investigation Guidance). After

the Draft Revised Investigation

Guidance is finalized, it will replace the

Interim Guidance for Investigating Title

VI Administrative Complaints

Challenging Permits (Interim Guidance)

issued in February 1998. EPA is

soliciting public comment on both of

these documents for 60 days.

During the public comment period,

EPA will hold six public listening

sessions around the country to receive

additional input. EPA also expects to

meet with various stakeholder

organizations during the comment

period to listen to their comments. (A

current list of scheduled outreach

meetings is posted on EPA’s Office of

Civil Rights’ (OCR) Web site at http://

www.epa.gov/civilrights). See the Public

Comment Period section of this

document for details about the public

comment period and the listening

sessions.

EPA will consider both the written

public comments submitted and the

information collected during the

listening sessions and stakeholder

meetings as it drafts the final versions

of both the Draft Recipient Guidance

and the Draft Revised Investigation

Guidance documents. EPA will also

continue its interagency coordination

through its work with the U.S.

Department of Justice and the Council

on Environmental Quality.

Today’s document also contains a

Summary of Key Stakeholder Issues

Concerning EPA Title VI Guidance. EPA

is not soliciting comments on the

Summary of Key Stakeholder Issues

Concerning EPA Title VI Guidance. It is

provided for informational purposes

only.

Background

Entities applying for EPA financial

assistance submit an assurance with

their application stating that they will

comply with the requirements of EPA’s

regulations implementing Title VI of the

Civil Rights Act of 1964 (Title VI) with

respect to their programs or activities.

When the recipient receives the EPA

assistance, they accept the obligation to

comply with EPA’s Title VI

implementing regulations. Persons who

believe Federal financial assistance

recipients are not administering their

programs in a nondiscriminatory

manner may file administrative

complaints with the EPA or other

relevant Federal agencies. These

complaints must be filed subsequent to

a particular action taken by a recipient

(such as the issuance of an

environmental permit) that the

complainants allege has a

discriminatory purpose or effect.

In February 1998, EPA issued its

Interim Guidance, which is internal

guidance that provides a framework for

OCR’s processing of complaints filed

under Title VI that allege discrimination

in the environmental permitting context

on the basis of race, color, or national

origin.

The Draft Revised Investigation

Guidance was developed to address the

application of Title VI to alleged adverse

disparate impacts caused by

environmental permitting. It does not

address other applications of Title VI in

the environmental context, such as

allegations concerning the unequal

enforcement of environmental permit

conditions, regulations, or statutes, or

allegations relating to discrimination in

public participation processes

associated with permitting decisions.

This guidance is directed at the

processing of discriminatory effects

allegations, Title VI complaints may

also allege discriminatory intent in the

context of environmental permitting.

Such complaints generally will be

investigated by OCR under Title VI,

EPA’s Title VI regulations, and

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 areawide 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 27, 2000 / Notices

allegation will likely be dismissed).

Also, EPA has attached a flowchart as

an appendix to more fully explain the

Title VI complaint processing

regulations at 40 CFR part 7, subpart E

and how those govern OCR’s receipt and

handling of complaints filed with EPA.

Third, more terms are defined by

providing examples within the text and

including a glossary of terms as an

attachment to each draft guidance

document.

Fourth, the draft documents contain

guidance on issues that were not

included in the Interim Guidance or

required further clarification. They

discuss tools to conduct an adverse

impact analysis, and describe EPA’s

intent to accord due weight to

approaches by recipients that reduce or

eliminate adverse disparate impacts.

The Draft Revised Investigation

Guidance also outlines EPA’s intended

approach regarding permit actions that

result in an actual and significant

decrease in emissions, and provides that

such permit actions will likely not serve

as bases for findings of violation of Title

VI.

Flexibility is also a key concept

embodied in the draft documents. For

example, EPA recognizes that recipients

have different Title VI concerns,

different amounts of resources, and

different organizational structures, so a

‘‘one-size-fits-all’’ Title VI program will

not adequately address all recipients

needs. As a result, the Draft Recipient

Guidance offers a range of possible

approaches to Title VI issues and

encourages recipients to develop other

techniques.

In addition to the general matters

described above, the key elements of the

Draft Recipient Guidance and some of

the other specific additions or changes

to the Interim Guidance contained in

the Draft Revised Investigation

Guidance are described below.

Draft Recipient Guidance

Entities applying for EPA financial

assistance submit an assurance with

their application stating that they will

comply with the requirements of EPA’s

Title VI implementing regulations with

respect to their programs or activities.

When the recipients receive the EPA

assistance, they accept the obligation to

comply with EPA’s Title VI

implementing regulations. The Draft

Recipient Guidance is written for the

recipients of EPA financial assistance

that implement environmental

permitting programs. It provides a

framework to help recipients address

situations that might otherwise result in

the filing of complaints alleging

violations of Title VI and EPA’s Title VI

implementing regulations. In particular,

it provides a framework designed to

improve a recipients’ existing programs

or activities and reduce the likelihood

or necessity for persons to file Title VI

administrative complaints with EPA

alleging either: (1) Discriminatory

human health or environmental effects

resulting from the issuance of permits;

or (2) discrimination during the

permitting public participation process.

To ensure stakeholder involvement in

the development of the Draft Recipient

Guidance, EPA Administrator Carol M.

Browner established a Title VI

Implementation Advisory Committee in

March 1998. The Title VI Advisory

Committee was comprised of

representatives of communities,

environmental justice groups, state and

local governments, industry, and other

interested stakeholders. The committee

reviewed and evaluated existing

techniques that EPA funding recipients,

such as state and local environmental

permitting agencies, may use to

administer environmental permitting

programs in compliance with Title VI. It

was also asked to make

recommendations to help EPA financial

assistance recipients design programs or

approaches that will address Title VI

concerns early in the permit process.

The core components of the Draft

Recipient Guidance are based, in part,

on the March 1, 1999, Report of the Title

VI Implementation Advisory Committee:

Next Steps for EPA, State, and Local

Environmental Justice Programs.

The Draft Recipient Guidance is

divided into two main sections. The

first section describes several general

approaches recipients may want to

adopt to help identify and resolve issues

that could lead to the filing of Title VI

complaints. The second section

provides guidance on individual

activities that EPA encourages

recipients to consider integrating into

their permitting programs.

Title VI Approaches and Activities

The Draft Recipient Guidance

suggests a number of approaches and

individual activities recipients can

consider adopting and implementing to

address Title VI-related concerns. The

suggested Title VI approaches include:

(1) A Comprehensive Approach that

integrates all or most of the Title VI

activities described in the Draft

Recipient Guidance; (2) an AreaSpecific Approach to identify

geographic areas where adverse

disparate impacts may exist; and (3) a

Case-by-Case Approach or permitspecific 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 proactive 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 areaspecific agreements and to assess the

overall reasonableness of their

conclusions or projected results. The

Draft Revised Investigation Guidance

also explains that more weight will be

given to analyses and area-specific

agreements that are relevant to the Title

VI concerns in the complaint and have

sufficient depth, breadth, completeness,

and accuracy. Where a recipient or

complainant submits a relevant analysis

or area-specific agreement that meets

the factors described in the Draft

Revised Investigation Guidance, OCR

expects to give the results due weight

and rely on it in finding the recipient in

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: civilrights@epa.gov. Please

include your name and address, and,

optionally, your affiliation.

Additionally, EPA’s Office of Civil

Rights will coordinate six national

public listening sessions to receive

additional feedback on the Draft

Recipient Guidance and the Draft

Revised Investigation Guidance. Each of

these listening sessions will be attended

by the Director of the Office of Civil

Rights and key regional personnel.

Members of the public wishing to make

oral comments during the public

listening session will be limited to no

more than five (5) minutes, and must

register at the meeting site the day of the

conference. Seating will be limited and

available on a first-come, first-served

basis. The dates, times, and locations of

the public listening sessions are as

follows: June 26 in Washington, DC

from 9:00 a.m. until 12:00 p.m. and from

6:00 p.m. until 9:00 p.m. at the Ronald

Reagan Building/International Trade

Center, 1300 Pennsylvania Avenue NW.,

Polaris Suite (Concourse Level); July 17

in Dallas, Texas from 4:00 p.m. until

7:00 p.m. at U.S. EPA—Region 6, 1445

Ross Avenue, 12th Floor; July 18 in

Chicago, Illinois from 5:00 p.m. until

8:00 p.m. at U.S. EPA—Region 5, 77

West Jackson Boulevard, Room 331;

August 1 in New York, New York from

4:00 p.m. until 7:00 p.m. at U.S. EPA—

Region 2, 290 Broadway, Room 27A;

August 2 in Los Angeles, California

from 6:00 p.m. until 9:00 p.m. at the

Carson Community Center, 801 East

Carson Street; and August 3 in Oakland,

California from 6:00 p.m. until 9:00 p.m.

at the Henry J. Kaiser Convention

Center, 10th Street (near the Lake

Merritt BART station).

If anyone attending the listening

sessions needs special accommodations

(i.e., sign language interpreter,

alternative text format for materials),

please contact Mavis Sanders of the

Office of Civil Rights at (202) 564–7272,

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39655

1The underlined terms are defined or explained

in the attached Glossary.

2Civil Rights Act of 1964, Public Law 88–352, 78

Stat. 241 (codified as amended in scattered sections

of 42 U.S.C.).

3 42 U.S.C. 2000d–1.

4Alexander 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).

6 40 CFR 7.35(b).

7Exec. 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.

or send an e-mail message to

civilrights@epa.gov at least three

business days before the scheduled

listening session. Information regarding

these listening sessions can also be

found on the OCR Web site at http://

www.epa.gov/civilrights/reviguid2.htm.

B. Draft Title VI Guidance for EPA

Assistance Recipients Administering

Environmental Permitting Programs

(Draft Recipient Guidance)

I. Introduction

A. Purpose of the Recipient Guidance

B. Title VI of the Civil Rights Act of 1964,

as Amended

C. Coordination with Draft Revised

Investigation Guidance

D. Stakeholder Involvement

E. EPA’s Guiding Principles for Title VI

Recipient Guidance

F. Scope and Flexibility

G. Title VI and Tribes

II. Title VI Approaches and Activities

A. Title VI Approaches

1. Comprehensive Approach

2. Area-Specific Approaches

3. Case-by-Case Approach

B. Title VI Activities

1. Train Staff

2. Encourage Meaningful Public

Participation and Outreach

3. Conduct Impact and Demographic

Analyses

a. Availability of Demographic Data and

Exposure Data

b. Potential Steps for Conducting Adverse

Disparate Impact Analyses

c. Availability of Tools and Methodologies

for Conducting Adverse Impact Analyses

d. Relevant Data

e. Resources for Assessing Significance of

Impact

f. Conducting Disparity Analyses and

Assessing Significance

4. Encourage Intergovernmental

Involvement

5. Participate in Alternative Dispute

Resolution

6. Reduce or Eliminate Alleged Adverse

Disparate Impact

7. Evaluate Title VI Activities

C. Due Weight

III. Conclusion

IV. Acronyms and Abbreviations

V. References

Glossary of Terms

I. Introduction

A. Purpose of the Recipient Guidance

This draft guidance is written for the

recipients 1 of U.S. Environmental

Protection Agency (EPA) financial

assistance that implement

environmental permitting programs

(‘‘you’’). It provides a framework to help

you address situations that might

otherwise result in the filing of

complaints alleging violations of Title

VI of the Civil Rights Act of 1964, as

amended (Title VI) and EPA’s Title VI

implementing regulations.2 In

particular, it provides a framework

designed to improve your existing

programs or activities and reduce the

likelihood or necessity for persons to

file Title VI administrative complaints

with EPA alleging either: (1)

discriminatory human health or

environmental effects resulting from the

issuance of permits; or (2)

discrimination during the permitting

public participation process.

Cooperative efforts between permitting

agencies and communities, whether or

not in the context of Title VI-related

approaches, frequently offer the best

means of addressing potential problems.

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

of EPA’s Title VI implementing

regulations with respect to your

programs or activities. When EPA

approves an application for EPA

assistance and you receive the EPA

funds, you accept the obligation of your

assurance to comply with EPA’s Title VI

implementing regulations. The primary

means of enforcing compliance with

Title VI is through voluntary

compliance agreements. Fund

suspension or termination is a means of

last resort.

Executive Order 12250 requires

agencies to issue appropriate

implementing directives, either in the

form of policy guidance or regulations

that are consistent with requirements

proscribed by the Attorney General.7

Also, the number of administrative

complaints filed with EPA alleging

discrimination prohibited under Title VI

and EPA’s Title VI implementing

regulations has increased over the past

several years. The growing number of

complaints and the requests of state and

local agencies for guidance, provided

the impetus to develop this draft

guidance. The guidance provides you

with recommendations on individual

activities and more comprehensive

approaches designed to identify and

resolve circumstances that may lead to

complaints being filed with EPA under

Title VI.

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

39656 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

8The 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.

questions and concerns expressed in

comments the Agency has received on

the issue of Title VI guidance.

D. Stakeholder Involvement

To ensure stakeholder involvement in

the development of the Draft Recipient

Guidance, EPA Administrator Carol M.

Browner established a Title VI

Implementation Advisory Committee

(Title VI Advisory Committee) under the

National Advisory Council for

Environmental Policy and Technology

(NACEPT) in March 1998. The Title VI

Advisory Committee was comprised of

representatives of communities,

environmental justice groups, state and

local governments, industry, and other

interested stakeholders. The EPA asked

the committee to review and evaluate

existing techniques that EPA funding

recipients, such as state and local

environmental permitting agencies, may

use to administer environmental

permitting programs in compliance with

Title VI. The EPA also asked the

committee to make recommendations to

help recipients of EPA financial

assistance design activities or

approaches that will address Title VI

concerns early in the permit process.

The core components of the Draft

Recipient Guidance are based, in part,

on the April 1999, Report of the Title VI

Implementation Advisory Committee:

Next Steps for EPA, State, and Local

Environmental Justice Programs. The

report is available via the OCR Web site

at http://www.epa.gov/civilrights/

t6faca.htm. EPA also considered

information from several other sources

including:

• Public comments on the Interim

Guidance received by OCR;

• Recommendations and feedback

provided to EPA staff during meetings,

over the past 18 months, with

representatives of communities

(including environmental justice

organizations), representatives of state

and local governments, representatives

of industry, and other interested

stakeholders;

• Available descriptions of state

environmental justice programs; and

• The Environmental Council of

States (ECOS) October 9, 1998, draft

document entitled Proposed Elements of

State Environmental Justice Programs.

E. EPA’s Guiding Principles for Title VI

Recipient Guidance

In implementing Title VI and

developing this draft guidance, EPA

adheres to the following principles: 8

• All persons regardless of race, color,

or national origin are entitled to a safe

and healthful environment.

• Strong civil rights enforcement is

essential.

• Enforcement of civil rights laws and

environmental laws are complementary,

and can be achieved in a manner

consistent with sustainable economic

development.

• Potential adverse cumulative

impacts from stressors should be

assessed, and reduced or eliminated

wherever possible.

• Research efforts by EPA and state

and local environmental agencies into

the nature and magnitude of exposures,

stressor hazards, and risks are important

and should be continued.

• Decreases in environmental impacts

through applied pollution prevention

and technological innovation should be

encouraged to prevent, reduce, or

eliminate adverse disparate impacts.

• Meaningful public participation

early and throughout the decisionmaking process is critical to identify

and resolve issues, and to assure proper

consideration of public concerns.

• Early, preventive steps, whether

under the auspices of state and local

governments, in the context of voluntary

initiatives by industry, or at the

initiative of community advocates, are

strongly encouraged to prevent potential

Title VI violations and complaints.

• Use of informal resolution

techniques in disputes involving civil

rights or environmental issues yield the

most desirable results for all involved.

• Intergovernmental and innovative

problem-solving provide the most

comprehensive response to many

concerns raised in Title VI complaints.

F. Scope and Flexibility

The statements in this document are

intended solely as guidance. This

document is not intended, nor can it be

relied upon, to create any rights or

obligations enforceable by any party in

litigation with the United States. This

guidance may be revised to reflect

changes in EPA’s approach to

implementing Title VI. In addition, this

guidance does not alter in any way, a

regulated entity’s obligation to comply

with applicable environmental laws.

This guidance suggests a flexible

framework for a Title VI approach and

individual Title VI activities. EPA

recognizes that a ‘‘one-size-fits-all’’ Title

VI approach will not adequately address

all your needs. Recipients may have

different Title VI concerns in

communities within their jurisdiction,

different amounts of resources, and

different organizational structures. You

may choose the activities or approaches

that are most relevant to address your

needs. EPA also recognizes that some of

you have already begun to address Title

VI concerns through your existing

programs. Therefore, this guidance:

• Presents you with a menu of

possible options from which you may

choose to address Title VI concerns;

• Provides suggestions to those of you

who choose to develop formal Title VI

approaches or to amend your permit

process to include or revise Title VI

considerations without developing

formal Title VI approaches; and

• Provides flexibility for you, if you

choose to broaden the scope of your

Title VI approaches or activities to

improve other areas, such as

enforcement or hazardous waste cleanup.

While this draft guidance is intended

to focus on issues related to permitting,

you may also consider developing

proactive approaches to promote

equality in monitoring and enforcement

of environmental laws within your

jurisdiction.

G. Title VI and Tribes

The applicability of Title VI and

EPA’s implementing regulations to

Federally-recognized tribes will be

addressed in a separate document

because the subject involves unique

issues of Federal Indian law.

II. Title VI Approaches and Activities

The following discussion provides

guidance to you on the types of

activities and approaches that EPA

believes you may wish to consider

adopting and implementing as part of a

strategy to address Title VI-related

claims and issues that arise in the

environmental permitting context.

Identifying and resolving these concerns

early in the permitting process will

likely reduce the number of Title VI

complaints filed with EPA and may also

lead to improvements in public

participation processes, as well as

public health and environmental

benefits. You are not required to adopt

such activities or approaches, but

outcomes that result from the activities

or approaches may be considered in the

analysis of Title VI complaints that

relate to your programs, activities, or

methods of administration. You may

choose to select one or more of the

activities described in section II.B.

below, implement some of the more

comprehensive approaches described in

section II.A., or develop and implement

approaches or activities not listed in

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39657

9See sections V.B.2. of the Draft Revised

Investigation Guidance (discussing due weight and

any subsequent reliance OCR may give in the

course of its investigation to area-specific

agreements).

10See section II.B.5. (discussing ADR).

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 casespecific 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 nongovernmental organizations. The group

may develop an agreement where each

party agrees to particular actions that

will eliminate or reduce the adverse

lead impacts in that specific area.

Another example might be an areaspecific 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

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 nondiscrimination 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

11A 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).

12See DOJ’s regulation entitled ‘‘Coordination of

Enforcement of Non-discrimination in FederallyAssisted 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.

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 prepermitting process, as well as during the

permitting process, whenever possible;

• Includes community participants

that represent the spectrum of views;

• Uses communication methods

likely to reach the affected community

(e.g., insert information with utility

bills; place public service

announcements on local radio shows;

and place notices on bulletin boards in

grocery stores, houses of worship,

community newspapers, and

community centers);

• Schedules meeting times and places

that are convenient for residents who

work and those who use public

transportation;

• Schedules meeting places that are

accessible to persons with disabilities;

and

• Avoids creating schedule conflicts

with other community or cultural

events, whenever possible.

• Is meaningful:

• Uses an open and transparent

process;

• Provides understandable

information necessary for effective

community participation (Writing UserFriendly 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

respect to the issues raised by the

community.

There are a number of publications

describing effective public participation

techniques. The publications listed

below may provide useful information

as you assess your Title VI activities:

• The Model Plan for Public

Participation developed by the EPA

National Environmental Justice

Advisory Council, a Federal Advisory

Committee to the U.S. EPA. (For more

information on the EPA National

Environmental Justice Advisory

Council, contact the EPA Office of

Environmental Justice (OEJ) at 202–564–

2515, or visit the OEJ Web site at

http://es.epa.gov/oeca/main/ej/

index.html);

• American Society for Testing and

Materials (ASTM) Standard Guide to the

Process of Sustainable Brownfields

Redevelopment (ASTM Standard E–

1984–98). (For more information on this

standard, contact ASTM at 610–832–

9585. The ASTM Web site location is

http://www.astm.org);

• Report of the Title VI

Implementation Advisory Committee:

Next Steps for EPA, State, and Local

Environmental Justice Programs

(Available on line as an Acrobat format

pdf file at (http://es.epa.gov/oeca/oej/

t6report.pdf);

• EPA’s 1998 Final Supplemental

Environmental Projects Policy contains

information on the public’s opportunity

to participate in the consideration of

Supplemental Environmental Projects

(http://www.epa.gov/oeca/sep/);

• EPA’s 1998 Guidance for

Incorporating Environmental Justice

Concerns in EPA’s NEPA Compliance

Analyses contains a discussion

regarding public participation in

Section 4 (pages 39–43) (http://

es.epa.gov/oeca/ofa/ejepa.html); and

• EPA’s 1996 Resource Conservation

and Recovery Act (RCRA) Public

Participation Manual explains how

public participation works in the

permitting process and also contains

useful information for public

participation in non-RCRA

environmental activities (http://

www.epa.gov/epaoswer/hazwaste/

permit/pubpart).

3. Conduct Impact and Demographic

Analyses

The ability to analyze new and

existing potentially adverse impacts,

together with relevant demographic

information concerning receptor

populations (i.e., populations that may

be exposed to stressors), will often help

identify potential Title VI concerns and

assist in appropriately addressing them.

Potential and existing impacts may

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39659

13For 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.

14Note 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.

involve a broad spectrum of concerns.

Although there is no single place to

obtain access to data sources and tools

needed to address these concerns, and

some are incomplete or still being

developed, major assessment tools and

data are available. EPA has developed

several Web sites that may help identify

existing and emerging resources,

including the:

• EnviroFacts data warehouse (http:/

/www.epa.gov/enviro/);

• Environmental Quality (http://

www.epa.gov/ceis/);

• Community-Based Environmental

Protection (http://www.epa.gov/

ecocommunity/);

• National Center for Environmental

Assessment (http://www.epa.gov/ncea/);

and

• Superfund risk assessment home

page (http://www.epa.gov/superfund/

programs/risk/index.htm).

a. Availability of Demographic Data

and Exposure Data: The availability of

information needed to assess the

presence or likelihood of adverse

impact(s) may vary widely from one

geographic location to another. In

addition to nationally available data,

many states and localities collect and

maintain important information

concerning sources, stressors and

ambient levels. Geographically detailed

demographic information (e.g., subcounty 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 locallyrelevant data.

Some of the information on sources

and stressors, which are available in

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/epaoswer/

hazwaste/data/);

• RCRIS handlers (including large

and small quantity generators;

treatment, storage and disposal

facilities; and transporters) (http://

www.epa.gov/enviro/html/rcris/rcris—

overview.html); and

• BRS (data on waste streams from

large quantity generators of hazardous

waste) (http://www.epa.gov/enviro/

html/brs/index.html);

• The Comprehensive Environmental

Response Compensation and Liability

Information System (CERCLIS) is a

database that contains information on

the location of over 30,000 Superfund

hazardous waste sites. In addition, for

sites included in the National Priority

List (NPL), the database contains

information on pre-remedial actions

such as the discovery data and

preliminary assessment, site inspection

and the date of final hazardous ranking

determinations (http://www.epa.gov/

enviro/html/hazard.html#Superfund);

• The Aerometric Information

Retrieval System (AIRS) is a computerbased repository for information about

air pollution in the United States. AIRS

contains information on air releases by

various stationary sources of air

pollution, such as power plants and

factories, and provides information

about the criteria air pollutants that they

produce. In AIRS, these sources are

known as facilities, and the part of AIRS

containing data about sources is called

the AIRS Facility Subsystem, or AFS

(http://www.epa.gov/enviro/html/

air.html);

• The Permit Compliance System

(PCS) provides information on

companies which have been issued

permits to discharge waste water into

water bodies (http://www.epa.gov/

enviro/html/water.html);

• Risk management plans (describing

potential accidental releases) are

available for approximately 1500

facilities (http://www.epa.gov:9966/

srmpdcd/owa/overview$.startup).

Efforts to collect comprehensive

information about sources of

contaminants in particular geographic

areas include:

• The total maximum daily load

(TMDL) program develops inventories

of water emissions of contaminants from

a variety of sources, both point and nonpoint, to develop and allocate

watershed-based emission limits

(http://www.epa.gov/OWOW/tmdl/

index.html), and has developed software

for building, maintaining and displaying

source inventories called BASINS

(http://www.epa.gov/ost/BASINS/);

• The EPA Office of Groundwater and

Drinking Water source water protection

program (http://www.epa.gov/safewater/

protect.html) provides a drinking water

contaminant source index (http://

www.epa.gov/OGWDW/swp/

intro4.html), including a list of potential

contaminant source inventory tools

(http://www.epa.gov/safewater/protect/

feddata/inventory.html); and

• The National Air Toxics

Assessment program of EPA’s Office of

Air Quality Planning and Standards is

developing updated 1996

comprehensive air toxics emissions

information from a variety of sources for

release in 2000 (http://www.epa.gov/

ttnuatw1/urban/nata/natapg.html).

The following information may be

helpful to locate additional data about

ambient environmental monitoring

levels, and facilities which provide

drinking water:

• The Safe Drinking Water

Information System/Federal version

(SDWIS/FED) is a database storing

information about the nation’s drinking

water. SDWIS/FED stores identification,

violation and follow up actions for

approximately 175,000 public water

systems (http://www.epa.gov/enviro/

html/sdwis/sdwis—ov.html);

• The National Contaminant

Occurrence Database (NCOD) provides

raw data on occurrences of physical,

chemical, microbial and radiological

contaminants from both Public Water

Systems and other sources (http://

www.epa.gov/ncod/);

• The Storage and Retrieval of WaterRelated Data System (STORET), which

contains information about the

chemical, physical, and biological

39660 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

15Estimations 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.

16See Draft Revised Investigation Guidance,

section VI (regarding how EPA expects to conduct

and adverse disparate impact analysis in a

complaint investigation).

characteristics of ambient water

monitoring data as well as select ground

water and surface water data. States,

Regions, local governments, Tribal

groups, commissions, other Federal

Agencies, and volunteer groups provide

the information to EPA, which can be

retrieved by written request.

(www.epa.gov/reisite1/flshcard/

storet.htm#); and

• The AIRS Air Quality Subsystem

(AQS), which contains data on levels of

criteria pollutants from air quality

monitoring stations throughout the U.S.

AQS reports show summaries of the

prevailing levels of air pollution from

specific monitoring sites, and maps can

display the locations of monitoring

stations and non-attainment areas

(http://www.epa.gov/airsdata/

monitors.htm).

Many other sets of data, guidelines,

and assessment tools exist both within

and outside EPA. Therefore, the list

above is in no way intended to be

comprehensive. Instead it provides

some introductory information as an

initial starting point in developing

information about these resources.

b. Potential Steps for Conducting

Adverse Disparate Impact Analyses:

You may consider including the

following steps when conducting an

adverse disparate impact analysis and

refer to section VI of the Draft Revised

Investigation Guidance for more

detailed guidance on how to conduct

the steps below:

1. Define Scope: Review community

concerns and available data, determine

which other relevant sources of

stressors, if any, should be included in

the analysis, and develop a project plan.

2. Impact assessment: Determine

whether the activities of the permitted

entity at issue, either alone or in

combination with other relevant

sources, cause one or more impacts and

develop measure(s) of the magnitude

and likelihood of occurrence.

3. Adverse impact decision:

Determine whether the impact(s) are

sufficiently adverse to be considered

significant.

4. Characterize populations and

conduct comparisons: Determine the

characteristics of the affected

population, and conduct an analysis to

determine whether a disparity exists

between the affected population and an

appropriate comparison population in

terms of race, color, or national origin,

and adverse impact.

5. Adverse disparate impact decision:

Determine whether the disparity is

significant.

c. Availability of Tools and

Methodologies for Conducting Adverse

Impact Analyses: Analytical tools are

available for conducting impact

analyses for a particular permit

application or for a particular area of

concern. These analytical tools have

limitations given the state of the science

in assessing risks from multiple

stressors and exposure pathways. You

should use the best available tools for

conducting analyses to identify

potential adverse impacts. Peer

reviewed tools and methodologies are

the most credible.

Geographically detailed estimates of

risks or other measures of impact are the

most useful in assessing adverse

disparate impacts because they often

provide a clearer connection between

sources, stressor, and impacts. However,

producing these estimates or measures

can require significant resources.

Moreover, in some contexts, less

detailed methods or measures can be as

useful. For example, ambient risks may

often be directly proportional to release

amounts and toxicity of the stressors.15

As a result, by examining the amount

and toxicity of stressors coming from

the relevant source(s), it is often

possible to identify sources or

combinations of sources that have a

higher likelihood of being associated

with adverse disparate impacts.

When designing, selecting, and using

adverse impact methodologies, you

should consider the following:

• Availability of tools, resources, and

training to evaluate risks (both from

single and multiple stressors);

• Best available data concerning

sources, stressors, and ambient

conditions;

• Availability of a threshold of

potential concern for assessing the

adversity of the impacts; and

• The capacity of the assessment

method to identify who may be

adversely impacted.

One tool which is likely to be useful

is a geographic information system

(GIS), which allows users to manage,

analyze, and display integrated data,

such as source locations, ambient

conditions derived from monitoring or

modeling, and potentially impacted

populations. Many organizations have

found GIS useful in environmental

impact analyses. GIS is not, however, a

specific demographic or impact analysis

method. Instead, GIS software can be

used to perform a range of analyses and

produce maps and other display

products that are effective means of

communicating the findings and

facilitating public participation. For

example, GIS is useful in overlaying

data regarding adverse impacts on maps

that display population data.

Many organizations are using GIS to

produce integrated geographicallyfocused 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 areaspecific 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/oaqps/air_risc

/3_90_022.html);

• The Office of Civil Rights Web page

on investigative methods contains

background information provided to the

Science Advisory Board (SAB) regarding

possible disproportionate impact

methodologies (http://www.epa.gov/

civilrights/investig.htm);

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39661

17An SAB Report: Review of Disproportionate

Impact Methodoligies; A Review by the Integrated

Human Exposure Committee (IHEC) of the Science

Advisory Board (SAB).

18See Draft Revised Investigation Guidance,

section VI.B.5. (discussing how EPA expects to

conduct disparity analyses in Title VI

investigations).

19 In 2000, the most current geographically

detailed U.S. Census information is from the 1990

U.S. Census. Information from the 2000 U.S. Census

will not be available until 2001.

20See, e.g., Draft Revised Demographic

Information, Title VI Administrative Complaint, re:

Louisiana Department of Environmental Quality/

Permit for Proposed Shintech Facility, April 1998

(Shintech Demographic Information, April 1998),

Facility Distribution Charts D1 through D40 found

at http://www.epa.gov/civilrights/shinfileapr98.htm,

files t-d0l-10.pdf, t-d11-20.pdf, t-d21-30.pfd, t-d31-

40.pdf.

21See, e.g., Shintech Demographic Information,

April 1998, the last column in Tables A1 through

B7 found at http://www.epa.gov/civilrights/

shinfileapr98.htm, table-al.pdf through tableb.7.pdf.

22See, e.g., Shintech Demographic Information,

April 1998, last column in Tables C1 through C5

found at http://www.epa.gov/civilrights/

shinfileap98.htm, table-cl.pdf through table-c5.pdf.

• The SAB December 1998 report 17

on its review of EPA’s adverse disparate

impact methodologies is available at the

Office of Civil Rights Web site (in

Acrobat pdf format) at (http://

www.epa.gov/civilrights/investig.htm);

and

• The Cumulative Exposure Project is

developing methods for evaluating the

combined exposures to multiple

pollutants through three different

pathways—air, food, and drinking

water. The goal is to examine the

cumulative impacts of multiple

pollutants and to determine the

important contributors to cumulative

exposures. Initial results for 1990

modeled ambient air concentrations are

available from the EPA Web site at:

http://www.epa.gov/

cumulativeexposure/, with a cautionary

note on the applicability of the results

to current local conditions at http://

www.epa.gov/cumulativeexposure/air/

intrair.htm. As part of its National Air

Toxics Assessments, EPA is using this

same model, updated with 1996 data for

33 priority air toxics, and plans to

release the modeled ambient air

concentrations in Spring 2000. These

data will also be used to model

exposure estimates, which will be

available later in 2000.

e. Resources for Assessing

Significance of Impact: Assessing the

significance of a risk or measure of

impact involves legal, policy, and

scientific considerations. Various

environmental and health programs

have used a range of values for

determining regulatory or public health

protection levels over time. Generally,

the risk or measure of impact should

first be evaluated and compared to

benchmarks provided under relevant

environmental statutes, regulations or

policies. Where those risks meet or

exceed a significance level as defined by

law, policy or science, the measure of

impact would likely be recognized as

adverse in a Title VI approach.

In some cases, the relevant

environmental laws may not identify

regulatory levels for the risks of the

health impact of concern. For example,

an impact may result from cumulative

or other risk of effects from multiple

environmental exposure media. In such

cases, you may consider whether any

scientific or technical information

indicates that those impacts should be

recognized as significantly adverse

under Title VI. This evaluation would

need to take into account considerations

such as policies developed for single

stressors or sources without explicit

consideration of cumulative

contributions and uncertainties in

estimates.

f. Conducting Disparity Analyses and

Assessing Significance: As part of the

adverse impact, one method of

identifying an affected population

would involve assessing the distribution

of adverse impacts in the environment,

and associating populations with

them.18 Where this method is infeasible,

estimating affected populations based

on proximity to sources may provide

initial estimates for assessment. You

may wish to also attempt to assess the

demographic characteristics of the

potentially affected population. In many

cases, this will involve associating the

impact assessment results with data

from the 1990 (or later) 19 U.S. Census,

which is readily available at a detailed

level of geography. The residential

census data includes population

characteristics such as language spoken

at home and degree of English fluency.

This information will likely be helpful

to you in determining when limited

English proficiency might be an issue

for outreach and public participation

efforts.

Another element of this step involves

a disparity analysis that compares the

affected population to a comparison

population to determine to what degree

a disparity exists. EPA expects that

appropriate comparison populations

will be decided on a case-by-case basis.

You could consider the situation in

communities and/or permitting

decisions together with the types of

impacts. Generally, relevant comparison

populations would be drawn from those

who live within a reference area such as

your jurisdiction (e.g., an air district, a

state), a political jurisdiction (e.g., city,

county). For example, where a

complaint alleges that Asian Americans

throughout a state bear adverse

disparate impacts from permitted

sources of water pollution, an

appropriate reference area would likely

be the state. Another potentially

appropriate area might be one defined

by environmental criteria, such as an

airshed or watershed. Comparison

populations should usually be larger

than the affected population, and may

include the general population for the

reference area (e.g., a county or state

population which includes the affected

population) or the non-affected

population for the reference area (e.g.,

those in the reference area which are not

part of the affected population).

A disparity may be assessed using

comparisons both of the different

prevalence of race, color, or national

origin of the two populations, and of the

level of risk of adverse impacts

experienced by each population. You

may wish to conduct comparisons of

demographic characteristics, such as the

composition of an affected population to

that of a non-affected population or

general population; 20 and/or the

probability of different demographic

groups (e.g., African Americans,

Hispanics, Whites) in a surrounding

jurisdiction being in an affected

population or a highly affected portion

of it. 21 In conjunction with comparisons

of demographic characteristics between

populations, you may also wish to

compare the level of risk or other

measure of potential adverse impacts

between populations. These

comparisons might include the

average 22 or range of risks for

demographic subgroups of the general

population or between an affected

population and the general population.

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.

39662 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

23See Draft Revised Investigation Guidance,

section VI.B.6. (discussing how EPA expects to

assess the significance of disparity in Title VI

investigations).

24For a more detailed discussion of measures to

reduce or eliminate adverse disparate impact, see

section IV.B. of the Draft Revised Investigation

Guidance.

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

participation. Providing early, inclusive

and meaningful public participation

during the ADR process will help to

ensure that the agreement reached

through ADR provides solutions to

reduce or eliminate: (1) Discriminatory

human health, environmental, or other

effects resulting from the issuance of

permits; and/or (2) discrimination

during the public participation process

associated with the permitting process.

Usually, an experienced third party (a

‘‘neutral’’) facilitates the process. The

neutral would work with each of the

parties to develop a mutually agreeable

process.

There are several possible approaches

to consider when developing an ADR

process:

• Dialogue—Facilitated conversations

for improving understanding and

relationships;

• Consensus-Building—An informal,

but structured process through which

parties can participate in shared

learning and creative problem-solving;

and

• Mediation—A third party neutral,

with no decision-making authority,

helps all parties reach a voluntary

negotiated settlement of their issues.

Three common elements of all these

approaches include:

• Shared responsibility for the parties

to find a resolution that can satisfy their

important concerns;

• Voluntary resolutions that are not

developed and imposed by an external

authority; and

• A neutral environment where

parties express their concerns and views

in a neutral environment.

Often resolution through ADR results

in new understandings of and

innovative ideas to address issues of

concern. It is also particularly helpful in

building better relationships that may be

important for future interactions

between the parties.

Resources available to help you with

informal dispute resolution include:

• The U.S. Institute for

Environmental Conflict Resolution,

located at Suite 3350, 110 S. Church

Avenue, Tucson, Arizona 85701

(telephone: 520–670–5529, Web site:

http://www.ecr.gov).

• Alternative Dispute Resolution: A

Resource Guide. This guide, written by

the U.S. Office of Personnel

Management (OPM), provides an overall

picture of how the most common forms

of ADR are being implemented in

Federal agencies. It summarizes a

number of current ADR programs, and

it includes descriptions of shared

neutrals programs where agencies have

collaborated to reduce the costs of ADR.

It also provides a listing of training and

resources available from Federal and

non-Federal sources along with selected

ADR-related Web sites. The document

may be downloaded from the OPM Web

site. http://www.opm.gov/er/adrguide/

adrhome.html.ssi); and

• Various States have offices of

dispute resolution that can provide

information and resources.

6. Reduce or Eliminate Alleged Adverse

Disparate Impact

EPA believes that cooperative efforts

between permitting agencies and

communities, whether or not in the

context of Title VI-related approaches,

frequently offer the best means of

addressing potential problems. Efforts

that focus on all contributions to the

disparate impact, not just the permit at

issue, will likely yield the most effective

long-term solutions. It will be a rare

situation where the permit which

triggered the complaint is the sole

reason a discriminatory effect exists.

The Agency expects that remedial

measures that reduce or eliminate

alleged disparate impacts will be an

important focus of the informal

resolution process.24 You can offer to

provide various forms of remediation,

including remedial measures that are

narrowly tailored toward sources using

your existing permitting authorities.

Alternatively or in addition, you can

propose broader remedial measures that

are outside those considerations

ordinarily considered in the permitting

process. Before selecting a remedial

measure, analyze and compare all

potential remedial measures.

Remediation may take many forms,

including:

• 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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39663

25See 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.’’)

26For 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.

especially useful guidance for involving

the public in the development of

remedial measures to address

potentially disparate impacts. A copy of

EPA’s SEPs policy is available through

the National Service Center for

Environmental Publications (see

reference section for address) and is also

available at http://www.epa.gov/oeca/

sep/.

7. Evaluate Title VI Activities

You may decide to evaluate your Title

VI approach or Title VI activities to

identify areas in need of improvement.

For example, if you choose to develop

a public participation program, you may

wish to collect and analyze feedback

from communities and businesses. In

which case, it would be important to

give communities and businesses the

necessary information to provide

appropriate feedback. The ability to

effectively evaluate any approach or

activity is based primarily on

information and resource availability. If

you choose to evaluate your Title VI

approach or activities, you should also

consider data quality when choosing an

evaluation method. One resource on

program evaluation is Practical

Evaluation for Public Managers, Getting

The Information You Need by the

Department of Health and Human

Services, Office of the Inspector General

(see reference section for address).

C. Due Weight

As recipients, many of you have asked

EPA to provide ‘‘incentives’’ for you to

develop proactive Title VI-related

approaches. In particular, some of you

have asked EPA to recognize, and to the

maximum extent possible, rely on the

results of any such approaches in

assessing complaints filed with EPA.

While EPA encourages efforts to

develop proactive Title VI approaches,

under the Civil Rights Act of 1964, EPA

is charged with assuring compliance

with Title VI. Thus, EPA cannot

completely defer to a recipient’s own

assessment that it has not violated Title

VI or EPA’s regulations and cannot rely

entirely on an assertion that a Title VI

approaches has been followed.25 In

addition, EPA cannot delegate its

responsibility to enforce Title VI to its

recipients. Thus, with regard to the

processing of Title VI complaints, EPA

retains the:

• Ability to supplement the

recipient’s analysis or to investigate the

issues de novo;

• Approval authority over any

proposed resolution; and

• Ability to initiate its own

enforcement actions and compliance

reviews.

Nevertheless, EPA believes that it can,

under certain circumstances, recognize

the results of analyses you submit and

give them appropriate due weight.26 For

example, if you adopt any of the

individual Title VI activities discussed

above, and during the course of an

investigation you seek to submit the

results of those activities as evidence

that you have not violated EPA’s Title

VI regulations, EPA will review the

activity and the results to determine

how much weight to give the

submission in its investigation.

You may seek to conduct your own

evaluation of whether a disparate

impact exists and submit it to EPA.

These evaluations should at a minimum

generally conform to accepted scientific

approaches. They may focus on a

spectrum of potential adverse impacts,

such as described in the analytical

framework set forth in section II.B.3.

above, or may be more focused, such as

the impact of a specific pollutant on

nearby populations (e.g., a study

regarding the impact of lead emissions

on blood lead levels in the surrounding

area). The weight given any evidence

related to the level or existence of

adverse impacts and the extent to which

OCR may rely on it in its decision will

likely vary depending upon:

• Relevance of the evidence to the

alleged impacts;

• The validity of the recipient’s

methodologies;

• The completeness of the

documentation that is submitted by the

recipient;

• The degree of consistency between

the methodology used and the findings

and conclusions; and

• The uncertainties of the input data

and results.

Consequently, submitted materials

would be subject to scientific review by

EPA experts.

OCR expects to give more weight to

submitted analyses that are relevant to

the Title VI concerns in the complaint

and have sufficient scope,

completeness, and accuracy. If the

analyses submitted meet the factors

above, OCR will not seek to duplicate or

conduct such analyses, but instead will

evaluate the appropriateness and

validity of the relevant methodology

and assess the overall reasonableness of

the outcome or conclusions at issue.

If OCR’s review reveals that the

evidence contains significant

deficiencies with respect to the factors

above, then the analysis will likely not

be relied upon in OCR’s decision. If

these factors are met, then OCR will

likely rely on the evidence in its

investigation. In the instance where a

submitted analysis that shows no

adverse disparate impact exists, and the

analysis generally follows the steps in

section II.B.3.b. of this document and

meets the factors described above, then

OCR may rely on it in a finding that the

recipient is in compliance with EPA’s

Title VI regulation.

Some recipients may develop

procedures for their permitting program

that meet certain criteria designed to

ensure a nondiscriminatory public

participation process. OCR expects to

give due weight to the public

participation program if:

• The criteria that formed the basis

for the program were sufficient to

ensure a nondiscriminatory process;

• Your overall permitting process met

those criteria; and you followed your

program for the relevant case.

An example of a public participation

process that meets these steps would be

one that followed the guidelines for the

EPA Brownfields Assessment

Demonstration Pilot projects. A copy of

The Brownfields Economic

Redevelopment Initiative Proposal

Guidelines for Brownfields Assessment

Demonstration Pilots is available

through the National Service Center for

Environmental Publications (see

reference section for address) and is also

available at http://www.epa.gov/

swerosps/bf/html-doc/

apappg00.htm#guide.

EPA also intends to consider other

available information, including

information submitted by complainants

when investigating Title VI complaints.

If EPA’s review reveals that the activity

or analyses does not meet the criteria

above, then EPA will likely not rely on

the evidence in its decision. If EPA

finds that the activity, whether it is a

public participation process, disparate

impact analysis, the results of an areaspecific 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

SAB—Science Advisory Board

SDWIS/FED—Safe Drinking Water

Information System/Federal version

SEP—Supplemental Environmental

Projects

STORET—Storage and Retrieval of

Water-Related Data System

TRI—Toxics Release Inventory

TRIS—Toxics Release Inventory System

V. References

ASTM, 1998, ASTM E 1984—98,

Standard Guide to the Process of

Sustainable Brownfields

Redevelopment, American Society

for Testing and Materials,

Environmental Risk Management/

Sustainable Development/Pollution

Prevention Subcommittee (For more

information on this standard,

contact ASTM at 610–832–9585.

(The ASTM Web site location is

http://www.astm.org).

ECOS, 1998, Proposed Elements of

Environmental Justice Programs,

Draft, October 9, 1998,

Environmental Council of States,

Washington, DC (For more

information on this draft document,

contact ECOS at 444 North Capitol

Street, N.W., Suite 305,

Washington, DC 20001 or call 202–

624–3660 (The ECOS Web site is

http://www.sso.org/ecos).

EPA, 1999, The Brownfields Economic

Redevelopment Initiative Proposal

Guidelines for Brownfields

Assessment Demonstration Pilots,

October 1999. (A copy of the

guidelines is available through the

National Service Center for

Environmental Publications, P.O.

Box 42419, Cincinnati, OH 45242–

2419 or call 800–490–9198 and is

available at http://www.epa.gov/

swerosps/bf/html-doc/

apappg00.htm#guide).

EPA, 1998, Draft Revised Demographic

Information, Title VI Administrative

Complaint re: Louisiana

Department of Environmental

Quality/Permit for Proposed

Shintech Facility, April, 1998.

(Available through the Office of

Civil Rights Web page on

investigative approaches at http://

www.epa.gov/civilrights/

investig.htm).

EPA, 1998, Guidance for Incorporating

Environmental Justice Concerns in

EPA’s NEPA Compliance Analyses,

April, 1998. (Available at http://

es.epa.gov/oeca/ofa/ejepa.html).

EPA, 1998, EPA Supplemental

Environmental Projects Policy, May

1, 1998, United States

Environmental Protection Agency,

Office of Enforcement and

Compliance Assurance,

Washington, DC (A copy of the

policy is available through the

National Service Center for

Environmental Publications, P.O.

Box 42419, Cincinnati, OH 45242–

2419 or call 800–490–9198) and is

also available at http://

www.epa.gov/oeca/sep/).

EPA, 1996, RCRA Public Participation

Manual, United States

Environmental Protection Agency,

Solid Waste and Emergency

Response, Washington, DC,

September 1996, EPA530-R–96–007

(This manual is available in English

and Spanish through the National

Service Center for Environmental

Publications. Contact information is

provided in the previous reference.

This manual is also available at

http://www.epa.gov/epaoswer/

hazwaste/permit/pubpart.

EPA, 1991, Air Pollution and Health

Risk, United States Environmental

Protection Agency, Office of Air

Quality Planning and Standards,

Washington, DC, March 1991, EPA

450/3–90–022. Available at http://

www.epa.gov/oar/oaqps/air_risc/

3_90_022.html.

HHS, 1994, Practical Evaluation for

Public Managers, Getting The

Information You Need, Department

of Health & Human Services, Office

of Inspector General, Washington,

DC (For a copy of this book contact

the HHS Office of the Inspector

General, Office of Evaluation and

Inspections at 330 Independence

Avenue, S.W., Room 5660,

Washington, DC 20201 or call 202-

691–0480).

NACEPT, 1999, Report of the Title VI

Implementation Advisory

Committee, Next Steps for EPA,

State, and Local Environmental

Justice Programs, April 1999, EPA

1000–4–99–004. (The report is

available on the OCR Web site at

http://www.epa.gov/civilrights/

t6faca.htm. However, Appendices

1–3 and A–N are not posted on the

OCR Web site, but are available by

ordering a paper copy, using a form

on the OCR Web site).

NEJAC, 1996, The Model Plan for Public

Participation, the Public

Participation and Accountability

Subcommittee of the National

Environmental Justice Advisory

Council, A Federal Advisory

Committee to the EPA (The OEJ

Web site location is http://

es.epa.gov/oeca/main/ej/

index.html).

OPM, 1999, Alternative Dispute

Resolution: A Resource Guide, July

1999, U.S. Office of Personnel

Management, Washington, DC

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 SAB Report: Review of

Disproportionate Impact

Methodologies, A Review by the

Integrated Human Exposure

Committee (IHEC) of the Science

Advisory Board (SAB)’’, EPA-SAB–

99–007, December 1998, United

States Environmental Protection

Agency, Science Advisory Board,

Washington, DC (This SAB report is

available in Acrobat pdf format via

the OCR Web site at http://

www.epa.gov/civilrights/

investig.htm).

Glossary of Terms

The definitions provided in this

glossary only apply to the Draft Title VI

Guidance for EPA Assistance Recipients

Administering Environmental

Permitting Programs and the Draft

Revised Guidance for Investigating Title

VI Administrative Complaints

Challenging Permits, unless a direct

citation to the Code of Federal

Regulations (CFR) is provided. Please

note that italicized words are ones for

which definitions are available in this

glossary.

Term Definition

Accuracy ............................................................. The measure of the correctness of data, as given by the difference between the measured

value and the true or standard value.

Adverse Impact ................................................... A negative impact that is determined by EPA to be significant, based on comparisons with

benchmarks of significance. These benchmarks may be based on law, policy, or science.

Affected Population ............................................. A population that is determined to bear an adverse impact from the source(s) at issue.

Ambient Standards ............................................. A level of pollutants prescribed by regulations that are not to be exceeded during a given time

in a defined area. (e.g., National Ambient Air Quality Standards).

Ambient ............................................................... Any unconfined portion of a water body, land area, or the atmosphere, such as the open air or

the environment surrounding a source.

Attainment Area .................................................. An area considered to have air quality as good as or better than the national ambient air quality standards as defined in the Clean Air Act. An area may be an attainment area for one

pollutant and a non-attainment area for others. (See also non-attainment area).

Benchmark .......................................................... A value used as a standard for comparison. Several types used in Title VI investigations include benchmarks of exposure level, risk, and significance. (See also RfC, RfD, threshold)

Brownfields ......................................................... Abandoned, idled, or under-used industrial and commercial facilities/sites where expansion or

redevelopment is complicated by real or perceived environmental contamination. They can

be in urban, suburban, or rural areas.

Carcinogen .......................................................... A chemical or other stressor capable of inducing a cancer response.

Chronic Toxicity .................................................. The capacity of a substance to cause long-term harmful health effects.

Comparison Population ...................................... A population selected for comparison with an affected population in determining whether the

affected population is significantly different with respect to demographic characteristics or

degree of adverse impact.

Criteria Pollutants ............................................... The 1970 Clean Air Act (CAA) required EPA to set National Ambient Air Quality Standards for

certain pollutants known to be hazardous to human health. EPA has identified and set

standards to protect human health and welfare for six pollutants: Ozone, carbon monoxide,

particulate matter, sulfur dioxide, lead, and nitrogen oxide. The term, ‘‘criteria pollutants’’ derives from the requirement that EPA must describe the characteristics and potential health

and welfare effects of these pollutants in ‘‘criteria.’’ See CAA section 108.

Cumulative Exposure .......................................... Total exposure to multiple environmental stressors (e.g., chemicals), including exposures originating from multiple sources, and traveling via multiple pathways over a period of time.

Cumulative Impact .............................................. The harmful health or other effects resulting from cumulative exposure.

Disparity (Disparate Impact) ............................... A measurement of a degree of difference between population groups for the purpose of making a finding under Title VI. Disparities may be measured in terms of the respective composition (demographics) of the groups, and in terms of the respective potential level of exposure, risk or other measure of adverse impact.

Due Weight ......................................................... The importance or reliance EPA gives to evidence or agreements to reduce impacts provided

by recipients or complainants, depending on a review of relevance, scientific validity, completeness, consistency, and uncertainties. Where evidence or agreements prove to be technically satisfactory, OCR may rely upon that information rather than attempting to duplicate

the analysis.

Environmental Council of States (ECOS) .......... The Environmental Council of States (ECOS) is a national non-partisan, nonprofit association

of state and territorial environmental commissioners.

Exposure ............................................................. Contact with, or being subject to the action or influence of, environmental stressors, usually

through ingestion, inhalation, or dermal contact.

Exposure Pathway .............................................. The physical course a chemical or other stressor takes from its source to the exposed receptor (See also Exposure Route).

Exposure Route .................................................. The avenue by which a chemical or other stressor comes into contact with an organism (e.g.,

inhalation, ingestion, dermal contact).

Exposure Scenario ............................................. A set of facts, assumptions, and inferences about how exposure takes place that aids in evaluating, estimating, or quantifying exposures (e.g., exposure pathway, environmental conditions, time period of exposure, receptor lifetime, average body weight).

Financial Assistance ........................................... Any grant or cooperative agreement, loan, contract (other than a procurement contract or a

contract of insurance or guaranty), or any other arrangement by which EPA provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of personnel; or

(3) Real or personal property or any interest in or use of such property, including: (i) Transfers or leases of such property for less than fair market value or for reduced consideration;

and (ii) Proceeds from a subsequent transfer or lease of such property if EPA’s share of its

fair market value is not returned to EPA. 40 CFR 7.25.

General Population ............................................. A comparison population that consists of the total set of persons in a jurisdiction or area of potential impact, including an affected population.

39666 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

Term Definition

GIS (Geographic Information System) ............... An organized computer system designed to efficiently capture, analyze, and display information in a geographically referenced manner, such as a map. Commonly, GIS is used to

produce maps which combine various data and analysis results together, allowing for convenient visual analysis.

Hazard ................................................................ The degree of potential for a stressor to cause illness or injury in a receptor, or the inherent

toxicity of a compound.

Hazard Index ...................................................... A summation of hazard quotients for multiple chemicals; a measure of cumulative risk for substances which exhibit a threshold for toxicity.

Hazard Quotient .................................................. The ratio of a single substance exposure level to a reference dose or benchmark for that substance. An exposure at the same concentration as the reference dose would have a hazard

quotient of 1.

Hazardous Air Pollutant (HAP) ........................... Air toxics which have been specifically listed for regulation under Clean Air Act section 112.

Health Outcome .................................................. A measure of disease rate or similar impact, such as age-adjusted cancer death rate.

Impact ................................................................. In the health and environmental context, a negative or harmful effect on a receptor resulting

from exposure to a stressor (e.g., a case of disease). The likelihood of occurrence and severity of the impact may depend on the magnitude and frequency of exposure, and other

factors affecting toxicity and receptor sensitivity.

Informal Resolution ............................................. Any settlement of complaint allegations prior to the issuance of a formal finding of noncompliance by EPA.

Measure of Impact .............................................. A measure used in evaluating the significance of an impact, which may involve the general

likelihood, frequency, rate or number of instances of the occurrence of an impact. (See risk,

which is similar, but expressed as a numeric probability of occurrence).

Media or Medium ................................................ Specific environmental compartments such as air, water, or soil, that are the subject of regulatory concern and activities.

Mitigation ............................................................. Measures taken to reduce or eliminate the intensity, severity or frequency of an adverse disparate impact.

Mobile Source ..................................................... Any non-stationary source of air pollution such as cars, trucks, motorcycles, buses, airplanes,

ships or locomotives.

Model/Modeling/Modeled .................................... A set of procedures or equations (usually computerized) for estimating or predicting a value,

e.g., the ambient environmental concentration of a stressor. Also, the act of using a model.

National Ambient Air Quality Standards

(NAAQS).

Standards established by EPA pursuant to Clean Air Act section 109 that apply for outdoor air

throughout the country. (See criteria pollutants)

New Permit ......................................................... For the purposes of this guidance, the term ‘‘new permits’’ refers to the initial issuance of any

permit, including permits for (1) The construction of a new facility, (2) the continued operation of an existing facility that previously operated without that type of permit, and (3) an

existing facility that adds a new operation that would require a new type of permit (e.g.,

newly issued water discharge permit), in addition to the facility’s existing permits (e.g., existing air emission permit). (See permit).

Non-Affected population ..................................... The remainder of a general population which is not found to be part of an affected population

(e.g., a county population minus those in an affected population).

Non-Attainment Area .......................................... Area that does not meet one or more of the National Ambient Air Quality Standards for the criteria pollutants designated in the Clean Air Act.

Non-Point Source ............................................... A diffuse water pollution source (i.e., without a single point of discharge to the environment).

Common non-point sources include agricultural, forestry, mining, or construction areas,

areas used for land disposal, and areas where collective pollution due to everyday use can

be washed off by precipitation, such as city streets. (See also point source).

Noncompliance ................................................... A finding by EPA that a recipient’s program or activities do not meet the requirements of

EPA’s Title VI implementing regulations.

Offsets ................................................................. A concept whereby emissions from proposed new or modified stationary sources are balanced

by reductions from existing sources to stabilize total emissions.

Pathway (exposure) ............................................ The physical course a chemical or other stressor takes from its source to the exposed receptor (See also Exposure Route).

Pattern (of disparate impact) .............................. An allegation or finding that multiple sources of a certain type are consistently associated with

likely adverse impacts to a protected group.

Permit .................................................................. An authorization, license, or equivalent control document issued by EPA or other agency to

implement the requirements of an environmental regulation (e.g., a permit to operate a

wastewater treatment plant or to operate a facility that may generate harmful emissions).

Plain Language Action Network ......................... Plain Language Action Network (PLAN) is a government-wide group working to improve communications from the federal government to the public.

Point Source ....................................................... A stationary location or fixed facility from which pollutants are discharged; any single identifiable source of a stressor (e.g., a pipe, ditch, small land area, pit, stack, vent, building).

Pollution Prevention ............................................ The practice of identifying areas, processes, and activities that create excessive waste products or stressors, and reducing or preventing them from occurring through altering or eliminating a process or activity.

Potency Factor .................................................... A measure of the power of a toxic stressor to cause harm at various levels of exposure

(sometimes based on the slope of a dose-response curve), or above a single specific value.

Receptor ............................................................. An individual or group that may be exposed to stressors.

Recipient ............................................................. Any state or its political subdivision, any instrumentality of a state or its political subdivision,

any public or private agency, institution, organization, or other entity, or any person to which

Federal financial assistance is extended directly or through another recipient, including any

successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of

the assistance. 40 CFR 7.25.

Reference Area ................................................... An area from which one or more comparison populations are drawn for conducting a disparity

analysis.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 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 receptors. Includes, among other things, any spilling, leaking, pumping, pouring, emitting,

emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

RfC (inhalation reference 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 environment by the actual or potential presence and/or use of specific stressors. This involves a determination of the kind and degree of hazard posed by a stressor (e.g., toxicity), the extent

to which a particular group of people has been or may be exposed to the agent, and the

present or potential health risk that exists due to the agent.

Science Advisory Board (SAB) ........................... A group of external scientists who advise EPA on science and policy.

Significant ........................................................... A determination that an observed value is sufficiently large and meaningful to warrant some

action. (See statistical significance).

Source ................................................................. The site, facility, or origin from which one or more environmental stressors originate (e.g., factory, incinerator, landfill, storage tank, field, vehicle).

Statistical Significance ........................................ An inference that there is a low probability that the observed difference in measured or estimated quantities is due to variability in the measurement technique, rather than due to an

actual difference in the quantities themselves.

Stressor ............................................................... Any factor that may adversely affect receptors, including chemical (e.g., criteria pollutants,

toxic contaminants), physical (e.g., noise, extreme temperatures, fire) and biological (e.g.,

disease pathogens or parasites). Generally, any substance introduced into the environment

that adversely affects the health of humans, animals, or ecosystems. Airborne stressors may

fall into two main groups: (1) Those emitted directly from identifiable sources and (2) those

produced in the air by interaction between chemicals (e.g., most ozone).

Threshold ............................................................ The dose or exposure level below which an adverse impact is not expected. Most carcinogens

are thought to be non-threshold chemicals, to which no exposure can be presumed to be

without some risk of contracting the disease.

Toxicity ................................................................ The degree to which a substance or mixture of substances can harm humans or animals. (See

chronic toxicity).

Unit Risk Factor .................................................. A measure of the power of a toxic stressor to cause cancer at various levels of exposure

(based on the slope of a dose-response curve, combined with an exposure scenario).

Universe of Sources ........................................... A category of relevant and/or nearby sources of similar stressors to those from the permitted

activity included in assessments of potential adverse disparate impacts.

Voluntary Compliance ......................................... Settlement between EPA and a recipient after a formal finding of noncompliance.

C. Draft Revised Guidance for

Investigating Title VI Administrative

Complaints Challenging Permits (Draft

Revised Investigations Guidance)

I. Introduction

A. Purpose of the Revised Investigation

Guidance

B. Title VI of the Civil Rights Act of 1964

C. Scope of Guidance

D. Coordination with Recipient Guidance

E. Principles for Implementing Title VI at

EPA

F. EPA’s Nondiscrimination

Responsibilities and Commitment

II. Framework for Processing Complaints

A. Summary of Steps

1. Acknowledgment of Complaint

2. Acceptance for Investigation, Rejection,

or Referral

3. Investigation

4. Preliminary Finding of Noncompliance

5. Formal Finding of Noncompliance

6. Voluntary Compliance

7. Hearing/Appeal Process

B. Roles and Opportunities to Participate

1. Recipients

2. Complainants

III. Accepting or Rejecting Complaints

A. Criteria

B. Timeliness of Complaints

1. Start of 180-day ‘‘Clock’’

2. Good Cause Waiver

3. Ongoing Permit Appeals or Litigation

a. Permit Appeal Processes

b. Litigation

4. Premature Complaints

IV. Resolving Complaints

A. Reaching Informal Resolution

1. Informal Resolution Between Recipient

and Complainant

2. Informal Resolution Between EPA and

Recipient

B. Implementing Informal Resolutions

V. Investigative Procedures

A. Submission of Additional Information

B. Granting Due Weight to Submitted

Information

1. Analyses or Studies

2. Area-specific Agreements

C. Submission of Additional or Amended

Complaints

D. Discontinued Operations/Mootness

E. Filing/Acceptance of Title VI Complaint

Does Not Invalidate Permit

VI. Adverse Disparate Impact Analysis

A. Framework for Adverse Disparate

Impact Analysis

B. Description of Adverse Disparate Impact

Analysis

1. Assess Applicability

a. Determine Type of Permit

b. Determine if Permit is Part of an

Agreement to Reduce Adverse Disparate

Impacts

2. Define Scope of Investigation

a. Determine the Nature of Stressors and

Impacts Considered

b. Determine Universe of Sources

3. Impact Assessment

4. Adverse Impact Decision

a. Example of Adverse Impact Benchmarks

39668 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

27 42 U.S.C. 2000d to 2000d–7.

28 40 CFR part 7.

29The underlined terms are defined or explained

in the attached Glossary.

30See, 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).

31Civil Rights Act of 1964, Public Law 88–352,

78 Stat. 241 (codified as amended in scattered

sections of 42 U.S.C.).

32U.S. Commission on Civil Rights, Federal Title

VI Enforcement to Ensure Nondiscrimination in

Federally Assisted Programs, p.12 (June 1996)

[hereinafter Federal Title VI Enforcement].

33H.R. Doc. No. 124, 88th Cong., 1st Sess. (1963),

reprinted in 1963 U.S.C.C.A.N. 1534.

34 Guardians Ass’n v. Civil Serv. Comm’n, 463

U.S. 582, 589 (1983).

35See Alexander v. Choate, 469 U.S. 287, 292–

94 (1985); Guardians Ass’n, 463 U.S. at 589–93.

36 38 FR 17968 (1973), as amended by 49 FR 1656

(1984) (codified at 40 CFR part 7).

37 40 CFR 7.35(b).

38Title VI ‘‘delegated to the agencies in the first

instance the complex determination of what sorts

of disparate impacts upon minorities constituted

sufficiently significant social problems, and were

readily enough remediable, to warrant altering the

practices of the federal grantees that had produced

those impacts.’’ Alexander v. Choate, 469 U.S. 287,

292–94 (1985). In addition, DOJ, which is charged

with coordinating the Federal government’s Title VI

work, Executive Order 12250, 45 FR 72995 (1980),

issued regulations that provide, in part, that

‘‘Federal agencies shall publish Title VI guidelines

for each type of program to which they extend

financial assistance.’’ 28 CFR 42.404(a).

Furthermore, Executive Order 12250 requires

agencies to issue appropriate implementing

directives in the form of policy guidance or

regulations that are consistent with requirements

prescribed by the Attorney General. Pursuant to that

authority, EPA is issuing the Draft Revised

Investigation Guidance and the Draft Recipient

Guidance. 39Clean Air Act, 42 U.S.C. 7401 to 7671q. 40Federal Water Pollution Control Act, 33 U.S.C.

1251 to 1387. 41Safe Drinking Water Act, 42 U.S.C. 300f to

300j–26.

42Underground injections are regulated pursuant

to the Safe Drinking Water Act.

43Resource Conservation and Recovery Act, 42

U.S.C. 6901 to 6992k.

44Use 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.

b. Use of National Ambient Air Quality

Standards

c. Assessing Decreases in Adverse Impacts

in a Permit Action

5. Characterize Populations and Conduct

Comparisons

a. Identify and Characterize Affected

Population

b. Comparison to Assess Disparity

6. Adverse Disparate Impact Decision

VII. Determining Whether a Finding of

Noncompliance is Warranted

A. Justification

1. Types of Justification

2. Less Discriminatory Alternatives

3. Voluntary Compliance

B. Hearing/Appeal Process

Appendix A: Glossary of Terms

Appendix B: Title VI Complaint Process

Flow Chart

I. Introduction

A. Purpose of the Revised

Investigation Guidance

The Draft Revised Guidance for

Investigating Title VI Administrative

Complaints Challenging Permits (Draft

Revised Investigation Guidance) is

intended to provide a framework for the

United States Environmental Protection

Agency’s (EPA or Agency) Office of

Civil Rights (OCR) to process

complaints filed under Title VI of the

Civil Rights Act of 1964, as amended

(Title VI),27 and EPA’s Title VI

implementing 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).31 Title VI of the Act, which

prohibits discrimination on the basis of

race, color, and national origin in all

Federally-assisted programs and

activities, applies to the recipients of an

estimated $900 billion in Federal

assistance distributed annually by

approximately 27 Federal agencies.32

When submitting the Civil Rights Act to

Congress, President Kennedy stated that

‘‘[s]imple justice requires that public

funds, to which all taxpayers of all races

contribute, not be spent in any fashion,

which encourages, entrenches,

subsidizes, or results in racial

discrimination.’’ 33

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

of possible permutations of facts,

allegations, and circumstances, such an

approach is infeasible. Instead, this

guidance provides a detailed framework

explaining how OCR intends to process

and investigate allegations about

discriminatory effects resulting from

environmental permitting decisions. In

particular, OCR generally expects to use

this guidance for complaints involving

allegations related to environmental

permits, such as Clean Air Act 39

permits, Clean Water Act 40 discharge

permits, Safe Drinking Water Act 41

permits, underground injection 42

permits, and Resource Conservation and

Recovery Act 43 permits for treatment,

storage, and disposal.44

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39669

45 40 CFR 7.130(a).

46 Id.

47The 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. 48 42 U.S.C. 2000d–4a.

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 enforcementrelated 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

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 Federallyrecognized 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:

• 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 decisionmaking 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

39670 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

49See 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).

50Section 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.

52See 40 CFR 7.30, 7.35 (stating prohibitions

against discrimination).

53See section VI (describing analysis for

determining whether adverse disparate impact

exists).

54See section VII (discussing justification).

55See section VI.B.2. (discussing scope of

investigation).

56See section IV (discussing informal resolution).

57See 28 CFR 42.101 to 42.112 (DOJ’s regulations

implementing Title VI); 28 CFR 42.401 to 42.415

(DOJ’s regulations for coordinating enforcement of

Title VI); Executive Order 12250, 45 FR 72995

(1980) (Executive Order giving authority for

coordinating Federal government’s implementation

of Title VI to DOJ).

58 40 CFR 7.120(c).

59 40 CFR 7.120(d)(1)(iii).

60See section III.A. (describing jurisdictional

criteria).

61 ‘‘Acceptance’’ of a complaint merely indicates

that the complainant has satisfied the basic

jurisdictional criteria described in this section. The

fact that OCR accepts a complaint for investigation

does not in any way mean that a finding of

noncompliance with Title VI will result. OCR must

conduct an investigation to determine whether the

recipient has complied with its Title VI

responsibilities.

62 40 CFR 7.120(d)(1)(i), (ii).

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).

69 40 CFR 7.115(c).

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 EPA’s

Title VI implementing regulations, OCR

would determine whether the

recipient’s programs or activities have

resulted in an unjustified adverse

disparate impact.52 In other words, OCR

would assess whether the impact is both

adverse and borne disproportionately by

a group of persons based on race, color,

or national origin,53 and, if so, whether

that impact is justified.54 Assessing

background sources of stressors

allegedly contributing to discriminatory

effects may be required to understand

whether an adverse impact exists.

However, in determining whether a

recipient is in violation of Title VI or

EPA’s implementing regulations, the

Agency expects to account for the

adverse disparate impacts resulting from

sources of stressors (e.g., facilities),

stressors (e.g., chemicals or pathogens),

and/or impacts (e.g., risk of disease)

within the recipient’s authority.55

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. Summary of Steps

The steps that OCR will follow in

complaint processing, as required by

EPA’s Title VI implementing

regulations, are summarized below.

These steps comport with the Federal

government-wide standard for

processing Title VI complaints.57

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

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39671

70 40 CFR 7.115(c).

71 Id.

72 40 CFR 7.115(d).

73 Id.

74See 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.

76 40 CFR 7.130(b).

77See 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).

78 40 CFR 7.85(b), (f).

79 In addition to considering information supplied

by recipients, OCR will also evaluate information

provided by complainants and may develop its own

information and analyses.

80 40 CFR 7.120(d)(1).

81 40 CFR 7.115(d).

82 40 CFR 7.130(b)(2).

83 40 CFR 7.130(b)(3).

4. Preliminary Finding of

Noncompliance

If OCR makes a preliminary finding of

noncompliance with the regulations, it

will notify both the recipient and the

complainant, and send a copy to the

EPA grant award official (Award

Official) and the Assistant Attorney

General for Civil Rights.70 OCR’s notice

generally will include recommendations

for the recipient to achieve voluntary

compliance and notification of the

recipient’s right to engage in voluntary

compliance negotiations.71 In

determining whether a recipient is in

violation of Title VI or EPA’s

implementing regulations, the Agency

expects to assess whether the adverse

disparate impact results from factors

within the recipient’s authority to

consider as defined by applicable laws

and regulations. The recipient may

submit a written response, within 50

calendar days of receiving the

preliminary finding, demonstrating that

the preliminary findings are incorrect or

that compliance may be achieved

through steps other than those

recommended by OCR.72

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.75

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.

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 of receiving the

preliminary finding, demonstrating that

the preliminary findings are incorrect or

that compliance may be achieved

through steps other than those

recommended by OCR.81 Finally, if OCR

begins the procedure to deny, annul,

suspend, or terminate EPA assistance,

recipients may request a hearing before

an ALJ 82 and, if the ALJ’s decision

upholds a finding of noncompliance,

the recipient may then file exceptions

with the Administrator.83

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

39672 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

84See 40 CFR 7.15.

85See 40 CFR 7.120.

86 40 CFR 7.120(b)(1).

87Because EPA’s Title VI regulations apply only

to recipients of EPA financial assistance, OCR will,

within the 20-day period, establish whether the

person or entity that took the alleged discriminatory

act is in fact an EPA recipient as defined by 40 CFR

7.25.

88 40 CFR 7.120(b)(1).

89 40 CFR 7.120(b)(2); see also section III.B.

(discussing timeliness of complaints).

90 40 CFR 7.120(a). Information submitted by

parties that does not satisfy these criteria may be

used by OCR to determine whether to perform a

compliance review under 40 CFR 7.110, 7.115.

91 40 CFR 7.120(d)(1).

92 40 CFR 7.120(d)(1)(ii).

93See Sections V.B.2. and VI.B.1.b. (discussing

‘‘due weight’’ for recipient’s complaint-specific

analyses and other Title VI efforts).

94See 40 CFR 7.120; see also Section III.A.

95 40 CFR 7.120(b)(2). It should be emphasized

that ‘‘180 calendar days’’ is not the same as ‘‘six

months.’’

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); 86

(2) It identifies the entity that

allegedly performed the discriminatory

act 87 and describes the alleged

discriminatory act(s) that violates EPA’s

Title VI regulations (i.e., an act of

intentional discrimination or one that

has the effect of discriminating on the

basis of race, color, or national origin); 88

(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;

(b) A person who is a member of a

specific class of people that was

allegedly discriminated against in

violation of EPA’s Title VI regulations;

or

(c) A party that is authorized to

represent a person or specific class of

people who were allegedly

discriminated against in violation of

EPA’s Title VI regulations.90

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

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39673

96See, 40 CFR 7.110, 7.115.

97 40 CFR 7.120(b)(2).

98 In other words, OCR may dismiss the

complaint, but that dismissal would not prohibit

the complainant from re-filing its complaint at a

later date.

99 40 CFR 7.120(d)(2).

100 40 CFR 7.115(f).

101See Draft Recipient Guidance, Section II.B.5.

(providing additional information about alternative

dispute resolution).

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 refile 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

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

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.

39674 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

102See Draft Recipient Guidance, section II.B.6.

(providing additional information about remedial

measures).

103See Draft Recipient Guidance, section II.B.4.

(providing additional information about

intergovernmental involvement).

104See sections V.B.2. and VI.B.1.b. (discussing

area-specific agreements); see also, Draft Recipient

Guidance, section II.A.2. (describing geographic

area-specific approaches).

105 42 U.S.C. 2000d–1. 106See 28 CFR 50.3(b) (‘‘Primary responsibility

for prompt and vigorous enforcement of Title VI

rests with the head of each department and agency

administering programs of Federal financial

assistance.’’); Memorandum from Bill Lann Lee,

Acting Assistant Attorney General, U.S. Department

of Justice, to Executive Agency Civil Rights

Directors, p. 3 (Jan. 28, 1999) (titled Policy

Guidance Document: Enforcement of Title VI of the

Civil Rights Act of 1964 and Related Statutes in

Block Grant-Type Programs) (‘‘It is important to

remember that Federal agencies are responsible for

enforcing the nondiscrimination requirements that

apply to recipients of assistance under their

programs.’’).

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,

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.

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39675

107While 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.

108This Draft Revised Investigation Guidance is

limited to investigating allegations of

discriminatory effects resulting from the issuance of

permits; therefore, investigatory techniques and the

concept of due weight applied in the context of

allegations regarding discrimination in public

participation processes are not addressed. However,

the Draft Recipient Guidance, section II.C. contains

a discussion of the circumstances under which OCR

might accord a public participation process due

weight.

109See Draft Recipient Guidance, section II.A.2.

(discussing area-specific agreements).

110The determination that an area-specific

agreement will result in actual reductions of

adverse disparate impacts will likely entail many of

the same steps described in sections VI.B.2 through

4.

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 novo;

• 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.

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 nongovernmental organizations. The group

may develop an agreement where each

party agrees to particular actions that

will eliminate or reduce the adverse

lead impacts in that specific area.

Another example might be an areaspecific 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 noncompliance 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

39676 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

111See 40 CFR 7.120. 112 40 CFR 7.120(d)(1).

113See section V.B.2. (discussing criteria for areaspecific agreements that would receive due weight).

agreement is no longer adequate or that

it is not being properly implemented.

If OCR’s review reveals that the areaspecific approach, the specific

agreement, or its underlying analyses do

not result in actual reductions to the

point of significantly reducing or

eliminating impacts that would result in

a finding of non-compliance with EPA’s

Title VI regulations, then it will likely

not be relied upon in OCR’s decision. In

that instance, OCR would be more likely

to conduct a first-hand investigation of

the allegations. Throughout the

investigation, EPA also intends to

consider other available information,

including information submitted by

complainants.

C. Submission of Additional or

Amended Complaints

During the course of OCR’s

investigations, complainants can also

submit additional allegations of

violations of EPA’s Title VI regulations.

Each additional allegation would have

to satisfy the jurisdictional criteria

described in section III.A. above in

order to be accepted for investigation.111

Generally, the additional allegations

will be considered a new and separate

complaint. In some cases, for reasons of

efficiency, OCR may treat the new

allegations as amendments to the

existing complaint and incorporate

them into the existing investigation.

For example, assume OCR accepts a

complaint for investigation that only

alleges that a recently issued water

discharge permit has a discriminatory

human health impact on African

Americans. Two months after OCR

conducts interviews, complainants

attempt to amend their complaint by

alleging that two air emissions permits

issued for a different part of the source

have a discriminatory effect on African

Americans. In this instance, OCR will

generally consider the allegations

regarding the air permits as a new

complaint, not an amendment to the

existing complaint, because

incorporating the new allegations would

substantially change the scope of the

existing investigation. Complainants

and recipients will be appropriately

notified.

If a complainant amends its complaint

with additional allegations before OCR

decides to accept for investigation,

reject, or refer the allegations to another

Federal agency, OCR intends to

acknowledge receipt of the new

allegations and notify the recipient.

Both the complainant and the recipient

should also be notified that OCR expects

to make a determination to accept for

investigation, reject, request

clarification, or refer all of the

allegations within 20 calendar days of

receipt of the most recent allegations.112

D. Discontinued Operations/Mootness

OCR expects to dismiss allegations

about discriminatory effects of a permit

if, prior to commencement of any

activities allowed by the permit and

before OCR completes its investigation,

that permit is withdrawn or revoked, or

if a final decision is made by the

permittee not to operate under that

permit. If the activities commence under

the permit at issue, but are permanently

halted for any reason prior to the

conclusion of OCR’s investigation, OCR

may continue its investigation because

some discriminatory effects may have

occurred as a result of operations.

However, the current status of the

source should be taken into account in

the analysis. OCR expects that other

allegations that are not specific to the

permit (e.g., allegations concerning

state-wide issues) would not be closed

because those issues may continue to

exist notwithstanding the status of the

permit.

E. Filing/Acceptance of Title VI

Complaint Does Not Invalidate Permit

Neither the filing of a Title VI

complaint nor the acceptance of one for

investigation by OCR stays the permit at

issue.

VI. Adverse Disparate Impact Analysis

Evaluations of alleged violations of

EPA’s Title VI regulations should be

based upon the facts and totality of the

circumstances that each case presents,

and show both an adverse and disparate

effect. Rather than using a single

technique for analyzing and evaluating

adverse disparate impact allegations in

all situations, OCR expects to use

several techniques within the broad

framework discussed here. Moreover,

OCR expects that parts of the analytical

framework described in this section will

be omitted, altered, or supplemented to

address the particular characteristics of

each complaint. Any method of

evaluation chosen within that

framework will be a reasonably reliable

indicator of the level of potential

adverse impacts and disparity.

A. Framework for Adverse Disparate

Impact Analysis

The framework that OCR expects to

use for determining whether an adverse

disparate impact exists should generally

be performed in a step-wise fashion in

the order set forth below.

Step 1: Assess Applicability

• Determine the type of permit action

at issue (i.e., new permit, renewal,

modification). Generally, OCR will not

initiate an investigation where the

permit that triggered the complaint is a

modification, such as a facility name

change or a change in a mailing address,

that does not involve actions related to

the stressors identified in the complaint.

• Determine whether the relevant

permit is covered by an area-specific

agreement that OCR has already

determined will eliminate or reduce, to

the extent required by Title VI, the

adverse disparate impacts. If so, then

the investigation of the allegation will

likely be closed.113

• 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.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39677

114 40 CFR 7.120. See also section III.A.

115This 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.

116Assessing 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 the criteria described in section

V.B.2, then investigations into future complaints

regarding permit actions covered by the areaspecific agreement generally will be closed.

118A recipient may use actual monitoring data,

reasonable estimates, permit limits, parametric

monitoring, or any other reliable means to

demonstrate the decrease to the satisfaction of EPA.

119EPA will determine significance of a decrease

in the context of a specific case.

120Contemporaneous emissions decreases are

required. Banking over time is not a basis for a

decrease dismissal.

121See 40 CFR 7.110, 7.115.

122See section V.B.2. (discussing criteria for areaspecific agreements that would receive due weight).

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 noncompliance 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

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

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

39678 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

123See section VII (discussing findings of

noncompliance).

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).

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, crosscutting 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, physicalchemical properties) as well as available

reports describing possible exposures or

risks of release of stressors from

permitted activities and sources.

b. Determine Universe of Sources: In

performing assessments of potential

adverse disparate impacts, OCR may

consider other relevant and/or nearby

sources of similar stressors for inclusion

in the analysis. Those included in the

analysis are referred to as the universe

of sources. When a complaint contains

more than one allegation, there may be

more than one appropriate universe of

sources for an investigation. OCR

intends to determine the appropriate

universe(s) of sources based upon the

allegations and facts of a particular case.

As noted above, the relevant universe

of sources contributing to the potential

adverse impacts could include, if

appropriate, background sources (e.g.,

mobile source air emissions, non-point

source runoff). For example, in the case

of lead, preexisting or estimated

children’s blood lead levels that may

result from both a permitted source and

household lead paint exposures would

be used to help decide whether

additional emissions of lead are adverse.

Thus, cumulative impacts of regulated

and unregulated sources can be

considered to determine the cumulative

level of potential adverse impacts. OCR

would generally expect to assess

potential adverse cumulative impacts to

the extent appropriate data are

available, taking into account the

uncertainties associated with the data.

In many cases, the nature of the

sources of stressors, the stressors, or the

impact being alleged is clear from the

complaint. For example, complainants

may allege that air emissions from

specific chemical plants have resulted

in higher cancer rates for Hispanics

living near those facilities. In some

cases, the nature of the sources of

stressors or other important information,

is not clear. For example, complainants

may allege that Asian Americans are

‘‘overburdened by pollution’’ or suffer a

variety of impacts from multiple,

unidentified types of sources.

In cases where it is unclear, OCR will

attempt to determine the source of the

stressors and/or the nature of the

impact(s) being alleged, based on the

type of permitted entity at issue and the

kinds of impacts EPA expects could

result from the situation described in

the complaint. This determination

would be made after consulting such

resources as scientific literature reviews,

engineering studies, and technical

experts.

In addition to considering the scope

of the allegations and the circumstances

of each complaint, OCR expects that the

universe of sources will fall into three

main categories. One category includes

allegations that involve a permitted

facility that is one of a number of

similar sources in a geographic area.

These facilities, together or in

conjunction with background sources,

may present a cumulative adverse

disparate impact or may reflect a pattern

of adverse disparate impact. In these

cases, OCR expects an assessment will

need to evaluate the cumulative impacts

of pollution from a broad universe of

regulated and permitted sources 124 (e.g.,

large manufacturing facilities), as well

as regulated but usually unpermitted

sources (e.g., some paint stripping or

metal finishing operations, mobile

sources, sources of surface water

runoff), and unregulated sources.

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.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39679

125The findings were presented in the December

1998 report, An SAB Report: Review of

Disproportionate Impact Methodologies; A Review

by the Integrated Human Exposure Committee

(IHEC) of the Science Advisory Board (SAB). The

report and related materials are available on the

OCR Web site at http://www.epa.gov/civilrights/

investig.htm.

126A 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.

127For 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.

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., ageadjusted cancer rates), but also evidence

that the health or environmental

outcomes stem from environmental

stressors from the permitted entity.

Many types of adverse health impacts

may require years of exposure to a large

number of people in order to be

observed in health outcome data.

Risk. Another approach involves

prediction of potentially significant

exposures and risks resulting from

stressors created by the permitted

activities or other sources. These

predictions may be based on ambient

levels of stressors derived from

monitoring or modeling, with

information about the likelihood of

toxic effects occurring. In estimating

cancer risks, such unit risk factors

estimate the probability of contracting a

cancer case for a unit of exposure.126

For example, an area’s predicted cancer

risk could be based on the estimated

ambient concentration times the unit

risk factor. These could be assessed for

single chemicals, or be summed for

multiple chemicals, based on releases

from a single source or a combination of

sources and background levels.127

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

39680 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

128For further discussions of this issue, see the

preceding footnote.

129See 43 FR 46248, 46252–54 (Oct. 5, 1978);

Lead Industr. Ass’n v. EPA, 647 F.2d 1130, 1141–

45 (D.C. Cir. 1980).

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 noncompliance with EPA’s Title VI

regulations and will be closed.

a. Example of Adverse Impact

Benchmarks: EPA uses a range of risk

values for implementing various

environmental programs, depending

upon the legal, technical, and policy

context of the decision at issue. Based

on these values, OCR would expect that

cumulative risks of less than 1 in 1

million (10¥6) of developing cancer

would be very unlikely to support a

finding of adverse impact under Title

VI. OCR may make a finding in

instances where cumulative risk levels

fall in the range of 1 in 1 million (10¥6)

to 1 in 10,000 (10¥4). OCR would be

more likely to issue an adversity finding

for Title VI purposes where the

cumulative cancer risk in the affected

area was above 1 in 10,000 (10¥4). A

finding of adverse impact at this stage

of the investigation does not represent a

finding of noncompliance under Title

VI, but rather represents a criterion for

proceeding further in the analysis.

For cumulative non-cancer health

effects, which are often measured as a

hazard index, the range of values

previously used is less well

documented, and has been less often

applied in a cumulative exposure

context. Based on the available

precedents, OCR generally would be

very unlikely to use values of less than

1 to support a finding of adverse impact

under Title VI. Values above 1 cannot be

represented as a probability of

developing disease or other effect.128

Generally, the farther the hazard index

is above 1, the more likely OCR will be

to issue an adversity finding under Title

VI.

Compliance with environmental laws

does not constitute per se compliance

with Title VI. Frequently,

discrimination results from policies and

practices that are neutral on their face,

but have the effect of discriminating.

EPA recognizes that most permits

control pollution rather than prevent it

altogether. Also, there may be instances

in which environmental laws do not

regulate certain concentrations of

sources, or take into account impacts on

some subpopulations which may be

disproportionately present in an

affected population. For example, there

may be evidence of adverse impacts on

some subpopulations (e.g., asthmatics)

and that subpopulation may be

disproportionately composed of persons

of a particular of a race, color, or

national origin. Title VI is concerned

with how the effects of the programs

and activities of a recipient are

distributed based on race, color, or

national origin. A recipient’s Title VI

obligation exists in addition to the

Federal or state environmental laws

governing its environmental permitting

program.

b. Use of National Ambient Air

Quality Standards: EPA and the states

have promulgated a wide series of

regulations to implement public health

protections. Some of these regulations

are based on assessment of public health

risks associated with certain levels of

pollution in the ambient environment.

The National Ambient Air Quality

Standards (NAAQS) established under

the Clean Air Act are an example of this

kind of health-based ambient standard

setting. By establishing an ambient,

public health threshold, the primary

NAAQS contemplate multiple source

contributions and establish a protective

limit on cumulative pollution levels that

should ordinarily prevent an adverse air

quality impact on public health. Air

quality that adheres to such standards

(e.g., air quality in an attainment area)

is presumptively protective of public

health in the general population.

If an investigation includes an

allegation raising air quality concerns

regarding a pollutant regulated pursuant

to a primary NAAQS, and where the

area in question is attaining that

standard, the air quality in the

surrounding community will generally

be considered presumptively protective

and emissions of that pollutant should

not be viewed as ‘‘adverse’’ within the

meaning of Title VI. However, if the

investigation produces evidence that

significant adverse impacts may occur,

this presumption of no adverse impact

may be overcome.

For example, one situation where the

presumption could be overcome is the

following: An area may be in attainment

with the lead NAAQS, but in some cases

residents could still suffer adverse

effects from lead. The lead standard was

designed to take into account both

exposures from inhalation of airborne

lead (subject to the standard) and

exposures resulting from non-air

pathways such as ingestion of lead

contained in paint, soil, or water (not

subject to the standard).129

Contributions to total exposure from

non-air sources, however, can vary

widely, and unusually high levels of

lead in paint, soil, or water might cause

residents of some areas to experience

adverse effects even if the standard is

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39681

130Note 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.

131See section VII.A.3. (discussion of voluntary

compliance).

132This could occur when a complaint contains

more than one allegation, and/or different

populations may be disproportionately affected by

different pollutants or exposure pathways.

133The 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.

134See, e.g., Draft Revised Demographic

Information, Title VI Administrative Complaint re:

Louisiana Department of Environmental Quality/

Permit for Proposed Shintech Facility, April, 1998

(Shintech Demographic Information, April 1998),

Facility Distribution Charts D1 through D40 found

at http://www.epa.gov/civilrights/shinfileapr98.htm,

files t–d01–10.pdf, t–d11–20.pdf, t–d21–30.pdf, t–

d31–40.pdf.

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 EPA’s Title VI regulations and will

be closed.

a. Identify and Characterize Affected

Population: The first element of this

step is to identify the affected

population. The affected population is

that which suffers the adverse impacts

of the stressors from assessed sources.

Depending on the allegations and facts

in the case, various affected populations

may be identified.132 The affected

population may be categorized, for

example, by likely risk or measure of

impact above a threshold of adversity,

or by the sources or pathways of the

adverse impacts.

The impacts from permitted entities

and other sources are not always

distributed in a predictable and uniform

manner. Therefore, the predicted degree

of potential impacts could be associated

with a possible receptor population in

several ways. Based on Step 3’s

assessment, which predicted the

magnitude (and in some cases, the

geographic distribution) of stressor

levels associated with adverse impacts,

OCR expects to use mathematical

models, when possible, to estimate the

location and size of the affected

populations. An area of adverse impacts

may be irregularly shaped due to

environmental factors or other

conditions such as wind direction,

stream direction, or topography.

Likewise, depending upon the location

of a plume or pathway of impact, the

affected population may or may not

include those people with residences in

closest proximity to a source.

However, simpler approaches based

primarily on proximity may also be

used where more detailed (e.g.,

modeled) estimates cannot be

developed. The proximity analysis

would reflect the environmental

medium and impact of concern in the

case. For example, for air releases, an

inverse relationship with distance from

a source could be used within a circle

(i.e., the further away from a source, the

less the potential degree of impact to a

population). For surface water releases,

the impact allocation might involve

identifying downstream receptor

populations. All of these approaches

may incorporate the contribution of

other sources of chemical stressors to

assess potential cumulative impacts.

The analysis would also attempt to

determine the race, color, or national

origin of the affected population(s). OCR

intends to use available data and

demographic analysis methods, such as

the currently available U.S. Census

information 133 in geographic

information systems (GIS) to describe

the affected population. In conducting a

typical analysis to determine an affected

population, OCR would likely generate

data estimating the race, color or

national origin and density of

populations within a certain proximity

from a facility or within the geographic

distribution pattern predicted by

scientific models. OCR would expect to

use the smallest geographic resolution

feasible for the demographic data, such

as census blocks, when conducting

disparity assessments. OCR would

expect to characterize the affected

population for the permitted entity at

issue, as well as those in other areas of

estimated cumulative adverse impacts.

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

39682 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

135These values approximate the outlying

portions (sometimes called the ‘‘tails’’) of a

distribution of risk that are beyond two standard

deviations of the mean value.

136See, e.g., Shintech Demographic Information,

April 1998, the last column in Tables A1 through

B7 found at http://www.epa.gov/civilrights/

shinfileapr98.htm, table-a1.pdf through tableb.7.pdf.

137See, e.g., Shintech Demographic Information,

April 1998, last column in Tables C1 through C5

found at http://www.epa.gov/civilrights/

shinfileapr98.htm, table-c1.pdf through tablec5.pdf.

138For 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%.

139See 40 CFR 7.30, 7.35 (stating prohibitions

against discrimination).

140See section VI (describing analysis for

determining whether adverse disparate impact

exists).

141See section VII.A. (discussing justification).

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

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39683

142See section VI.B.2. (discussing defining the

scope of an investigation).

143 40 CFR 7.115(c), (d).

144 40 CFR 7.115(d).

145 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.

147 40 CFR 7.120(d)(1)(ii).

148 40 CFR 7.115(d)(2).

149See Donnelly v. Rhode Island Bd. of Governors

for Higher Educ., 929 F. Supp. 583, 593 (D.R.I.

1996), aff’d on other grounds, 110 F.3d 2 (1st Cir.

1997); Elston v. Talladega County Bd. of Educ., 997

F.2d 1394, 1412–13 (11th Cir. 1993); see also

NAACP v. Medical Center, Inc., 657 F.2d 1322,

1328 (3d Cir. 1981).

150See Georgia State Conference of Branches of

NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir.

1985); Elston, 997 F.2d at 1413.

151For further discussion of potential measures

that may reduce or eliminate adverse disparate

impacts, see section IV.B.

152See section VI.B.2.a. (discussing the scope of

recipient’s authority).

153 40 CFR 7.115(e); 7.130(b)(1).

154 40 CFR 7.130(b)(2)(i), (ii).

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

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 measures 151 associated with

the permitting action could be

considered as less discriminatory

alternatives, including, in some cases,

modifying permit conditions to lessen

or eliminate the demonstrated adverse

disparate impacts.

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

39684 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

155 40 CFR 7.130(b)(2)(ii).

156 40 CFR 7.130(b)(3)(i).

157 Id.

158 Id.

159 40 CFR 7.130(b)(3)(ii).

160 40 CFR 7.130(b)(3)(iii).

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 Definition

Accuracy ......................................... The measure of the correctness of data, as given by the difference between the measured value and the

true or standard value.

Adverse Impact ............................... A negative impact that is determined by EPA to be significant, based on comparisons with benchmarks of

significance. These benchmarks may be based on law, policy, or science.

Affected Population ......................... A population that is determined to bear an adverse impact from the source(s) at issue.

Ambient Standards ......................... A level of pollutants prescribed by regulations that are not to be exceeded during a given time in a defined

area. (e.g., National Ambient Air Quality Standards.)

Ambient ........................................... Any unconfined portion of a water body, land area, or the atmosphere, such as the open air or the environment surrounding a source.

Attainment Area .............................. An area considered to have air quality as good as or better than the national ambient air quality standards

as defined in the Clean Air Act. An area may be an attainment area for one pollutant and a non-attainment area for others. (See also non-attainment area.)

Benchmark ...................................... A value used as a standard for comparison. Several types used in Title VI investigations include benchmarks of exposure level, risk, and significance. (See also RfC, RfD, threshold.)

Brownfields ...................................... Abandoned, idled, or under-used industrial and commercial facilities/sites where expansion or redevelopment is complicated by real or perceived environmental contamination. They can be in urban, suburban,

or rural areas.

Carcinogen ...................................... A chemical or other stressor capable of inducing a cancer response.

Chronic Toxicity .............................. The capacity of a substance to cause long-term harmful health effects.

Comparison Population ................... A population selected for comparison with an affected population in determining whether the affected population is significantly different with respect to demographic characteristics or degree of adverse impact.

Criteria Pollutants ............................ The 1970 Clean Air Act (CAA) required EPA to set National Ambient Air Quality Standards for certain pollutants known to be hazardous to human health. EPA has identified and set standards to protect human

health and welfare for six pollutants: ozone, carbon monoxide, particulate matter, sulfur dioxide, lead,

and nitrogen oxide. The term, ‘‘criteria pollutants’’ derives from the requirement that EPA must describe

the characteristics and potential health and welfare effects of these pollutants in ‘‘criteria.’’ See CAA section 108.

Cumulative Exposure ...................... Total exposure to multiple environmental stressors (e.g., chemicals), including exposures originating from

multiple sources, and traveling via multiple pathways over a period of time.

Cumulative Impact .......................... The harmful health or other effects resulting from cumulative exposure.

Disparity (Disparate Impact) ........... A measurement of a degree of difference between population groups for the purpose of making a finding

under Title VI. Disparities may be measured in terms of the respective composition (demographics) of

the groups, and in terms of the respective potential level of exposure, risk or other measure of adverse

impact.

Due Weight ..................................... The importance or reliance EPA gives to evidence or agreements to reduce impacts provided by recipients

or complainants, depending on a review of relevance, scientific validity, completeness, consistency, and

uncertainties. Where evidence or agreements prove to be technically satisfactory, OCR may rely upon

that information rather than attempting to duplicate the analysis.

Environmental Council of States

(ECOS).

The Environmental Council of States (ECOS) is a national non-partisan, nonprofit association of state and

territorial environmental commissioners.

Exposure ......................................... Contact with, or being subject to the action or influence of, environmental stressors, usually through ingestion, inhalation, or dermal contact.

Exposure Pathway .......................... The physical course a chemical or other stressor takes from its source to the exposed receptor (See also

Exposure Route.)

Exposure Route .............................. The avenue by which a chemical or other stressor comes into contact with an organism (e.g., inhalation,

ingestion, dermal contact).

Exposure Scenario .......................... A set of facts, assumptions, and inferences about how exposure takes place that aids in evaluating, estimating, or quantifying exposures (e.g., exposure pathway, environmental conditions, time period of exposure, receptor lifetime, average body weight).

Financial Assistance ....................... Any grant or cooperative agreement, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which EPA provides or otherwise makes available

assistance in the form of: (1) Funds; (2) Services of personnel; or (3) Real or personal property or any

interest in or use of such property, including: (i) Transfers or leases of such property for less than fair

market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such

property if EPA’s share of its fair market value is not returned to EPA. 40 CFR 7.25.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39685

Term Definition

General population .......................... A comparison population that consists of the total set of persons in a jurisdiction or area of potential impact, including an affected population.

GIS (Geographic Information System).An organized computer system designed to efficiently capture, analyze, and display information in a geographically referenced manner, such as a map. Commonly, GIS is used to produce maps which combine

various data and analysis results together, allowing for convenient visual analysis.

Hazard ............................................. The degree of potential for a stressor to cause illness or injury in a receptor, or the inherent toxicity of a

compound.

Hazard Index ................................... A summation of hazard quotients for multiple chemicals; a measure of cumulative risk for substances

which exhibit a threshold for toxicity.

Hazard Quotient .............................. The ratio of a single substance exposure level to a reference dose or benchmark for that substance. An

exposure at the same concentration as the reference dose would have a hazard quotient of 1.

Hazardous Air Pollutant (HAP) ....... Air toxics which have been specifically listed for regulation under Clean Air Act section 112.

Health Outcome .............................. A measure of disease rate or similar impact, such as age-adjusted cancer death rate.

Impact ............................................. In the health and environmental context, a negative or harmful effect on a receptor resulting from exposure

to a stressor (e.g., a case of disease). The likelihood of occurrence and severity of the impact may depend on the magnitude and frequency of exposure, and other factors affecting toxicity and receptor sensitivity.

Informal Resolution ......................... Any settlement of complaint allegations prior to the issuance of a formal finding of noncompliance by EPA.

Measure of Impact .......................... A measure used in evaluating the significance of an impact, which may involve the general likelihood, frequency, rate or number of instances of the occurrence of an impact. (See risk, which is similar, but expressed as a numeric probability of occurrence.)

Media or Medium ............................ Specific environmental compartments such as air, water, or soil, that are the subject of regulatory concern

and activities.

Mitigation ......................................... Measures taken to reduce or eliminate the intensity, severity or frequency of an adverse disparate impact.

Mobile Source ................................. Any non-stationary source of air pollution such as cars, trucks, motorcycles, buses, airplanes, ships or locomotives.

Model/Modeling/Modeled ................ A set of procedures or equations (usually computerized) for estimating or predicting a value, e.g., the ambient environmental concentration of a stressor. Also, the act of using a model.

National Ambient Air Quality Standards (NAAQS).Standards established by EPA pursuant to Clean Air Act section 109 that apply for outdoor air throughout

the country. (See criteria pollutants.)

New Permit ..................................... For the purposes of this guidance, the term ‘‘new permits’’ refers to the initial issuance of any permit, including permits for (1) the construction of a new facility, (2) the continued operation of an existing facility

that previously operated without that type of permit, and (3) an existing facility that adds a new operation

that would require a new type of permit (e.g., newly issued water discharge permit), in addition to the facility’s existing permits (e.g., existing air emission permit). (See permit).

Non-affected population .................. The remainder of a general population which is not found to be part of an affected population (e.g., a

county population minus those in an affected population).

Non-Attainment Area ...................... Area that does not meet one or more of the National Ambient Air Quality Standards for the criteria pollutants designated in the Clean Air Act.

Non-Point Source ............................ A diffuse water pollution source (i.e., without a single point of discharge to the environment). Common

non-point sources include agricultural, forestry, mining, or construction areas, areas used for land disposal, and areas where collective pollution due to everyday use can be washed off by precipitation, such

as city streets. (See also point source).

Noncompliance ............................... A finding by EPA that a recipient’s program or activities do not meet the requirements of EPA’s Title VI implementing regulations.

Offsets ............................................. A concept whereby emissions from proposed new or modified stationary sources are balanced by reductions from existing sources to stabilize total emissions.

Pathway (exposure) ........................ The physical course a chemical or other stressor takes from its source to the exposed receptor (See also

Exposure Route).

Pattern (of disparate impact) .......... An allegation or finding that multiple sources of a certain type are consistently associated with likely adverse impacts to a protected group.

Permit .............................................. An authorization, license, or equivalent control document issued by EPA or other agency to implement the

requirements of an environmental regulation (e.g., a permit to operate a wastewater treatment plant or to

operate a facility that may generate harmful emissions).

Plain Language Action Network ..... Plain Language Action Network (PLAN) is a government-wide group working to improve communications

from the federal government to the public.

Point Source ................................... A stationary location or fixed facility from which pollutants are discharged; any single identifiable source of

a stressor (e.g., a pipe, ditch, small land area, pit, stack, vent, building).

Pollution Prevention ........................ The practice of identifying areas, processes, and activities that create excessive waste products or

stressors, and reducing or preventing them from occurring through altering or eliminating a process or

activity.

Potency factor ................................. A measure of the power of a toxic stressor to cause harm at various levels of exposure (sometimes based

on the slope of a dose-response curve), or above a single specific value.

Receptor .......................................... An individual or group that may be exposed to stressors.

Recipient ......................................... Any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or

private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee

of a recipient, but excluding the ultimate beneficiary of the assistance. 40 CFR 7.25.

Reference area ............................... An area from which one or more comparison populations are drawn for conducting a disparity analysis.

Reference dose ............................... See RfC and RfD.

Release ........................................... The introduction of a stressor to the environment, where it may come in contact with receptors. Includes,

among other things, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,

escaping, leaching, dumping, or disposing into the environment.

39686 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

Term Definition

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 environment by the actual or potential presence and/or use of specific stressors. This involves a determination of the kind and

degree of hazard posed by a stressor (e.g., toxicity), the extent to which a particular group of people has

been or may be exposed to the agent, and the present or potential health risk that exists due to the

agent.

Science Advisory Board (SAB) ....... A group of external scientists who advise EPA on science and policy.

Significant ........................................ A determination that an observed value is sufficiently large and meaningful to warrant some action. (See

statistical significance).

Source ............................................. The site, facility, or origin from which one or more environmental stressors originate (e.g., factory, incinerator, landfill, storage tank, field, vehicle).

Statistical significance ..................... An inference that there is a low probability that the observed difference in measured or estimated quantities is due to variability in the measurement technique, rather than due to an actual difference in the

quantities themselves.

Stressor ........................................... Any factor that may adversely affect receptors, including chemical (e.g., criteria pollutants, toxic contaminants), physical (e.g., noise, extreme temperatures, fire) and biological (e.g., disease pathogens or

parasites). Generally, any substance introduced into the environment that adversely affects the health of

humans, animals, or ecosystems. Airborne stressors may fall into two main groups: (1) Those emitted directly from identifiable sources and (2) those produced in the air by interaction between chemicals (e.g.,

most ozone).

Threshold ........................................ The dose or exposure level below which an adverse impact is not expected. Most carcinogens are thought

to be non-threshold chemicals, to which no exposure can be presumed to be without some risk of contracting the disease.

Toxicity ............................................ The degree to which a substance or mixture of substances can harm humans or animals. (See chronic

toxicity).

Unit risk factor ................................. A measure of the power of a toxic stressor to cause cancer at various levels of exposure (based on the

slope of a dose-response curve, combined with an exposure scenario).

Universe of Sources ....................... A category of relevant and/or nearby sources of similar stressors to those from the permitted activity included in assessments of potential adverse disparate impacts.

Voluntary Compliance ..................... Settlement between EPA and a recipient after a formal finding of noncompliance.

BILLING CODE 6560–50–P

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39687

BILLING CODE 6560–50–C

39688 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

161 Guardians Ass’n v. Civil Serv. Comm’n, 463

U.S. 582, 589 (1983).

162Elston v. Talladega County Bd. of Educ., 997

F.2d 1394, 1406 (11th Cir. 1993).

163See Civil Rights Division, U.S. Department of

Justice, Title VI Legal Manual 48–53 (Sept. 1998).

164 Id.

165See 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.).

166See 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.

168 42 U.S.C. 2000d–1.

169 Id.

170Alexander, 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).

173See Memorandum from Attorney General,

supra note 7, at 1–2.

D. Summary of Key Stakeholder Issues

Concerning EPA Title VI Guidance

This document summarizes and addresses

the key issues raised in comments received

by the U.S. Environmental Protection Agency

(EPA) concerning the February 4, 1998,

Interim Guidance for Investigating Title VI

Administrative Complaints Challenging

Permits (Interim Guidance). These key issues

were raised in a number of forums, including

the over 120 written comments received on

the Interim Guidance, meetings with a

number of stakeholder representatives over

the past two years, the meetings of the Title

VI Implementation Advisory Committee of

the National Advisory Council for

Environmental Policy and Technology (Title

VI Implementation Advisory Committee), a

facilitated meeting with a variety of

stakeholders on draft options under

consideration for inclusion in the revised

investigation guidance, and the internal EPA

and Department of Justice review processes.

This summary explains how the Draft

Revised Guidance for Investigating Title VI

Administrative Complaints Challenging

Permits (Draft Revised Investigation

Guidance) and the Draft Title VI Guidance

for EPA Assistance Recipients Administering

Environmental Permitting Programs (Draft

Recipient Guidance), which are being

published in the Federal Register

concurrently with this document, deal with

the key issues raised. This summary should

not be read without also considering the two

draft guidance documents.

The statements in this document are

intended solely as guidance. This document

is not intended, nor can it be relied upon, to

create any rights or obligations enforceable

by any party in litigation. EPA may decide

to follow the guidance provided in this

document, or to act at variance with the

guidance, based on its analysis of the specific

facts presented. This guidance may be

revised to reflect changes in EPA’s approach

to implementing Title VI. In addition, this

guidance does not alter in any way, a

regulated entity’s obligation to comply with

applicable environmental laws.

General Issues

Stakeholder Input

A number of commenters raised questions

about the stakeholder input process for the

Interim Guidance and the Draft Revised

Investigation Guidance.

Response: Issuance of the Interim

Guidance opened a continuing dialogue with

stakeholders that helped to shape the

Agency’s Draft Revised Investigation

Guidance. EPA provided a 90-day comment

period on the Interim Guidance during which

time more than 120 commenters representing

a broad range of interested parties provided

written comments. The Title VI

Implementation Advisory Committee, with

representatives from environmental justice

organizations, community groups, state and

local governments, businesses, and academia,

also provided input about the Interim

Guidance. In addition, over the past two

years, EPA staff have met with other

representatives from those groups to discuss

their concerns about environmental justice

and Title VI issues. Furthermore, in

September 1999, EPA held three sessions

with representatives of various stakeholder

groups to discuss policy options the Agency

was considering as it revised the Interim

Guidance. (A current list of scheduled

outreach meetings is posted on EPA’s Office

of Civil Rights’ (OCR) Web site at

www.epa.gov/civilrights).

Based upon that input and on experience

gained from processing and investigating

complaints during the intervening months,

EPA developed the Draft Revised

Investigation Guidance. In today’s Federal

Register document, EPA has established a 60-

day public comment period on both the Draft

Revised Investigation Guidance and the Draft

Recipient Guidance. During the public

comment period, EPA will host five public

listening sessions at EPA headquarters and

regional offices. Details regarding the

listening sessions are provided in the Public

Comment Period section of this notice.

Additionally, EPA staff will meet with

various stakeholder groups during the public

comment period to listen to their comments.

EPA’s Authority To Issue Guidance

A number of commenters raised concerns

about EPA’s authority to issue the Interim

Guidance, including one who stated that

EPA’s regulatory authorities under Title VI

extend only to prohibiting cases of

intentional discrimination and not to

prohibiting instances of discriminatory

effects. The commenter asserted that the

Supreme Court has held that the Fourteenth

Amendment to the U.S. Constitution

prohibits only intentional discrimination,

and not instances of discriminatory effects.

Likewise, the commenter claimed, the

Supreme Court held that the authority

granted under Title VI extends no further

than the Fourteenth Amendment, and

therefore does not prohibit discriminatory

effects. A further commenter stated that a

Supreme Court decision invalidated EPA’s

Title VI regulations.

Response: Title VI itself prohibits

intentional discrimination.161 To find

intentional discrimination, it must be proven

that ‘‘a challenged action was motivated by

an intent to discriminate.’’ 162 This standard

requires a showing that the recipient was

aware of the complainant’s race, color, or

national origin, and that the recipient acted,

at least in part, because of the complainant’s

race, color, or national origin.163 Evidence of

discriminatory intent may be direct or

circumstantial.164

In addition, the Supreme Court has stated

that Title VI authorizes agencies to adopt

implementing regulations that also prohibit

discriminatory effects.165 This is often

referred to as reaching actions that have an

unjustified disparate impact. In July 1994,

the Attorney General issued a memorandum

to the heads of all Federal agencies with Title

VI responsibilities stating that ‘‘[e]nforcement

of the disparate impact provisions is an

essential component of an effective civil

rights compliance program.’’ 166 The

Attorney General directed the head of each

Federal agency ‘‘to make certain that Title VI

is not violated, [and] ensure that the

disparate impact provisions in [the Title VI]

regulations are fully utilized.’’ 167

Congress intended that its policy against

discrimination by recipients of Federal

assistance be implemented, in part, through

administrative rulemaking.168 Federal

agencies were directed to promulgate

standards in the form of rules, regulations,

and orders, governing the administration of

Title VI.169 Title VI ‘‘delegated to the

agencies in the first instance the complex

determination of what sorts of disparate

impacts upon minorities constituted

sufficiently significant social problems, and

were readily enough remediable, to warrant

altering the practices of the federal grantees

that had produced those impacts.’’ 170 EPA

promulgated regulations that implement Title

VI in 1973 and revised those regulations in

1984.171

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39689

174For a further discussion of the legislative

history of Title VI, see U.S. commission on Civil

Rights, Federal Title VI Enforcement to Ensure

Nondiscrimination in Federally Assisted Programs

25–30 (June 1996).

175U.S. Const., art. I, section 8, cl. 1.

176U.S. Const., art. I, section 8, cl. 3.

177 110 Cong. Rec. S6546 (1964) (statement of Sen.

Humphrey).

178Executive 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.

179Alexander v. Choate, 469 U.S. 287, 292–94

(1985); see also Charles F. Abernathy, Title VI and

the Constitution: A Regulatory Model for Defining

Discrimination, 70 Geo. L.J. 1, 32 (1981)

(concluding that Congress intended to confer wide

discretion on agencies by giving them rule making

authority).

180Executive Order 12250, 45 FR 72995 (1980).

181 28 CFR 42.404(a).

182Executive Order 12250, section1–402.

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.’’).

184Motor & Equip. Mfg. Ass’n v. Nichols, 142 F.3d

449 (D.C. Cir. 1998); Mid-Tex Elec. Coop., Inc. v.

FERC, 773 F.2d 327 (D.C. Cir. 1985).

In enacting Title VI, Congress relied

on the Fifth and Fourteenth

Amendments to the Constitution, which

guarantee due process and equal

protection under laws.174 In addition,

Congress relied on its authority under

the spending clause of the

Constitution,175 rather than its authority

under the commerce clause.176 Title VI

was not intended to serve as a

regulatory measure over state and local

activities, rather, it allows the Federal

government to require compliance with

Title VI as a condition of receiving

assistance. ‘‘No recipient [was] required

to accept Federal aid. If he [did] so

voluntarily, he must take it on the

conditions on which it [was] offered. 177

EPA is unaware of any case law that

overturned the Supreme Court’s

decision and invalidated Federal

agencies’ Title VI implementing

regulations.

Interplay Between Guidance and

Executive Order 12898

A number of commenters argued that

EPA incorrectly relied on Executive

Order 12898, ‘‘Federal Actions To

Address Environmental Justice in

Minority Populations and Low-Income

Populations,’’ as authority to issue the

Interim Guidance.

Response: EPA did not rely on

Executive Order 12898 178 to provide

authority for issuing the Interim

Guidance. EPA relied on Title VI itself.

Title VI ‘‘delegated to the agencies in

the first instance the complex

determination of what sorts of disparate

impacts upon minorities constituted

significant social problems, and were

readily enough remediable, to warrant

altering the practices of the Federal

grantees that had produced those

impacts.’’ 179 In addition, the

Department of Justice (DOJ), which is

charged with coordinating the Federal

government’s Title VI work,180 issued

regulations that provide, in part, that

‘‘Federal agencies shall publish Title VI

guidelines for each type of program to

which they extend financial

assistance.’’ 181 Further, Executive Order

12250, which directed the Attorney

General to coordinate the

implementation and enforcement of

Title VI by Federal agencies, also

requires agencies to issue appropriate

implementing directives either in the

form of policy guidance or regulations

that are consistent with requirements

proscribed by the Attorney General.182

Pursuant to that authority, EPA issued

the Interim Guidance, and is now

issuing the Draft Revised Investigation

Guidance and the Draft Recipient

Guidance.

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-andComment Rulemaking

Some commenters argued that the

Interim Guidance constitutes a rule and

should have been issued pursuant to the

Administrative Procedure Act and the

requirements of the Small Business

Regulatory Enforcement Fairness Act.

Response: OCR only intends the

Interim Guidance and the Draft Revised

Investigation Guidance to provide a

framework for the processing of

complaints filed under Title VI. The

draft guidance documents update the

Agency’s procedural and policy

framework to accommodate the

increasing number of Title VI

complaints that allege discrimination in

the environmental permitting context.

Neither creates any new substantive

rights nor establishes any binding legal

requirements. Accordingly, both the

Interim Guidance and the Draft Revised

Investigation Guidance are expressly

exempted from the notice-and-comment

rulemaking requirements of the

Administrative Procedure Act by

section 553(b)(A).183 Nonetheless, EPA

is publishing the Draft Revised

Investigation Guidance in the Federal

Register and on EPA’s Web site to

solicit written public comment, and

EPA will also hold a series of public

listening sessions to obtain additional

feedback.

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

39690 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

185See Draft Revised Investigation Guidance,

section VI.B.1.a.

186 Id.

187Assessing a significant overall decrease would

entail taking into account factors such as total

quantity and relative toxicity of the emissions

reductions.

188A 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.

189U.S. Const. amend. V; see also Washington v.

Davis, 426 U.S. 229, 239 (1976).

190Section 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.’’).

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

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 Federallyrecognized tribes involves unique issues

of Federal Indian law. EPA recently

concluded a consultation with

Federally-recognized tribes and now

plans to address the issue in

collaboration with DOJ.

Application of Title VI and the Interim

Guidance to EPA Permitting Actions

Several comments concerned whether

Title VI and the Interim Guidance

applied to EPA.

Response: EPA is committed to a

policy of nondiscrimination in its own

permitting programs. The equal

protection guarantee in the Due Process

Clause of the U. S. Constitution

prohibits the Federal government from

engaging in intentional

discrimination.189 Moreover, section 2–

2 of Executive Order 12898 190 is

designed to ensure that Federal actions

substantially affecting human health or

the environment do not have

discriminatory effects based on race,

color, or national origin. However, Title

VI is inapplicable to EPA actions,

including EPA’s issuance of permits,

because it only applies to recipients of

Federal financial assistance, not to

Federal agencies. The statute clearly

defines ‘‘program or activity’’ to exclude

Federal agencies.191

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.

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39691

192Although not determinative, compliance with

certain types of environmental standards may play

a role in a Title VI investigation. See Draft Revised

Investigation Guidance section VI.B.4.b.

193 40 CFR 7.80(a)(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). 195See Draft Recipient Guidance, section II.

196See Powell v. Ridge, 189 F.3d 387, 399 (3rd

Cir.), cert. denied, 120 S. Ct. 579 (1999).

197See Draft Revised Investigation Guidance,

section VI.B.2.a.

198See Draft Recipient Guidance, section II.B.2.

(discussing factors that contribute to effective and

meaningful public participation).

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

and giving its assurance to comply with

Title VI. In accordance with 40 CFR

7.35(b), recipients are responsible for

ensuring that the activities authorized

by their environmental permits do not

have discriminatory effects, regardless

of whether the recipient selects the site

or location of permitted sources.

Accordingly, if the recipient did not

issue the permit, altered the permit, or

required mitigation measures, certain

impacts that are the result of the

operation of the source could be

avoided. The recipient’s operation of its

permitting program is independent of

the local government zoning activities.

Impact on States and Other Recipient’s

Environmental Programs

Some comments expressed concern

about whether the Interim Guidance can

be implemented consistently with

environmental laws. In particular, some

believed that the Interim Guidance may

open recipients’ permitting decisions to

legal challenge. Others felt that the

Interim Guidance requires recipients to

address social and economic issues that

they are not prepared to address.

Response: EPA prohibits

discriminatory effects in programs and

activities administered by its recipients.

With regard to environmental

permitting programs, the scope of

coverage includes, but is not limited to,

the screening of permit applications, the

public participation process for permit

issuance, and the adverse disparate

impacts that may result from the

permits that the recipient issues.

Recipients use a variety of criteria or

methods of administration to implement

their permitting programs, and they

have a duty to comply with their Title

VI obligation in exercising their

permitting authority. This means that

recipients have an obligation under

Title VI and EPA’s regulations to ensure

that their approval of a permit does not

subject those protected under Title VI to

unjustified discriminatory effects,

including human health and

environmental effects.

The Interim Guidance should not

interfere with permitting programs that

have properly been designed to meet

Title VI obligations. The Draft Recipient

Guidance suggests approaches and

individual activities that recipients can

develop to proactively address Title VI

concerns in the permitting process.195 In

terms of states’ susceptibility to legal

challenges to permitting decisions,

recipients are already subject to legal

challenges by individuals who have a

private right of action in court to enforce

the nondiscrimination requirements in

Title VI and EPA’s Title VI

implementing regulations without

exhausting their administrative

remedies.196

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.198 EPA recognizes that

recipients have different resources,

organizational structures, and issues.

Therefore, if a recipient elects to

develop or modify its public

participation process, it is up to the

39692 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

199See Draft Revised Investigation Guidance,

Appendix A (defining ‘‘due weight’’).

200See Draft Recipient Guidance, section II.B.2.

(discussing the circumstances under which OCR

might accord a public participation process due

weight).

201See id., section II.B.2.

202See id., section II.A.2.

203See id., section II.A.3.

204Public 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).

206Office of Solid Waste and Emergency

Response, U.S. EPA, Brownfields Title VI Case

Studies: Summary Report 23 (1999).

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 nondiscriminatory 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 of race, color, or

national origin, and to reduce those

impacts over time; 202 and (3)

performance of additional Title VIrelated 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,

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 casespecific circumstances. EPA has also

eliminated other terms that may have

been confusing, ambiguous, or

unnecessary.

Unfunded Mandates Reform Act

Some commenters felt that the Interim

Guidance will impose an unfunded

mandate on states if they must revise

existing permitting processes to conform

to the guidance.

Response: The Unfunded Mandates

Reform Act of 1995 (UMRA) applies

when an agency decides to take

regulatory action through

rulemaking.204 OCR issued the Interim

Guidance as a non-binding policy

statement because the Interim Guidance

(and the Draft Revised Investigation

Guidance) merely provide a framework

for the processing of Title VI

administrative complaints. Neither

document creates any new substantive

rights nor establishes any binding legal

requirements.

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

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 cleanup 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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39693

207See Draft Revised Investigation Guidance,

section II.B.1. (discussing when recipients can

provide information to OCR).

208See Draft Revised Investigation Guidance,

section II.B.2. (providing additional discussion

about a complainant’s role in OCR’s investigation).

209See Draft Revised Investigation Guidance,

section II.A.1. See also 40 CFR 7.120(d)(1).

210See Draft Revised Investigation Guidance,

section II.A.4. See also 40 CFR 7.115(d).

211 40 CFR 7.130(b)(2).

212 40 CFR 7.130(b)(3).

213See Draft Revised Investigation Guidance,

section II.B.2. 214 28 CFR 42.401–42.415.

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,

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,

complainants and recipients may seek

to submit additional relevant

information that comes to their

attention. OCR must balance the need

for a thorough investigation with the

need to complete the investigation in a

timely manner. Therefore, at the

conclusion of interviews with the

complainants, recipients, or other

witnesses, OCR expects to ask each to

submit, within 14 calendar days of the

interview, any additional information

that they would like considered as OCR

drafts its investigative report.

Ability for Complainants to Appeal

One commenter requested that EPA

provide an administrative appeal

process for complainants who believe

their complaints have been

inappropriately dismissed.

Response: The Title VI administrative

process is not an adversarial one

between the complainant and recipient.

As a result, the complainants do not

have the burden of presenting evidence

to support their allegations or proving

that their allegations are true. EPA,

however, encourages complainants to

provide as much information as possible

to assist in the investigation.

Investigating allegations and

determining compliance is EPA’s

responsibility. EPA does not represent

the complainants, but rather the

interests of the Federal government in

ensuring nondiscrimination by its

recipient. As a result, there are no

appeal rights for the complainant built

into EPA’s Title VI regulatory process.

Complainants, however, may be able to

challenge the recipient’s action or EPA’s

ultimate finding in court.

Accepting and Rejecting Complaints

Several commenters suggested that

EPA raise the threshold for accepting

complaints.

Response: The criteria for accepting

and rejecting complaints are described

in EPA’s Title VI regulations, which are

based on DOJ’s model regulations.214 In

addition, Executive Order 12250

requires that agencies’ Title VI

implementing directive ‘‘be consistent

with the requirements prescribed by the

Attorney General * * * and shall be

subject to the approval of the Attorney

General * * *.’’ As a result, EPA’s Title

VI regulations are very similar to the

criteria applied by other agencies for

accepting and rejecting Title VI

complaints.

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

39694 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

215See Draft Revised Investigation Guidance,

section III.A.

216 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).

220See Interim Guidance, at 6–7.

221 40 CFR 7.120(b)(2); Draft Revised Investigation

Guidance, section III.B.2.

222See Draft Revised Investigation Guidance,

section III.B.3.

223See Draft Revised Investigation Guidance,

section III.B.4.

224See Draft Recipient Guidance, section II.A.

225See 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).

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.’’ 217

• 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 nonadversarial scheme established by EPA’s

Title VI regulations.

Use of Permit Appeal Processes

Other comments concerned the

relationship between Title VI

complaints filed with EPA and permit

appeals filed with the permitting

authority. Several commenters

suggested Title VI complaints be

handled through permitting processes.

Response: The Interim Guidance

indicated EPA’s support for

complainants use of recipients’ permit

appeal process.220 To encourage early

resolution of Title VI issues, OCR

expects to consider a complainant’s

pursuit of its Title VI concerns through

the recipient’s administrative appeals

process when evaluating a request to

waive the 180-day timeliness

requirement for good cause.221

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.223

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 strongly

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39695

226See 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.

228See Executive Order 12250, 45 FR 72995

(1980) (section 1–2).

229See 28 CFR 42.101 et seq.

230 28 CFR 42.107(b).

231 28 CFR 42.408 (DOJ Complaint Procedures; 40

CFR 7.120 (EPA Complaint Investigation).

232See Draft Revised Investigation Guidance,

sections II & III.

233See id., section II.A.1; see also, 40 CFR

7.120(c).

234See 40 CFR 7.115(e); Draft Revised

Investigation Guidance, section II.A.6.

235 40 CFR 7.115(c)(1).

236See Draft Revised Investigation Guidance,

section V.B.

237 40 CFR 7.120(d)(1)(iii).

environmental laws (i.e., as explained

below, Title VI’s 180-day period for

filing a complaint begins when the

permit is issued, but, for the purposes

of the environmental law, the issuance

of the permit might not have the same

significance). Nonetheless, EPA expects

that the two approaches will be

compatible because neither the filing of

nor the investigation of a complaint

alleging a Title VI violation impacts the

effectiveness of a permit. A permit is not

automatically stayed as a result of the

filing or acceptance for investigation of

a Title VI complaint.

Complaints alleging discriminatory

effects arising out of a permit should be

filed within 180 calendar days of the

issuance of the permit, while

complaints alleging public participation

issues should be filed within 180

calendar days of the alleged

discriminatory act in the public

participation process.226 If a complaint

is filed more than 180 calendar days

after the alleged discriminatory act

occurred, OCR will generally reject it as

untimely. In general, as discussed

above, OCR will dismiss complaints

without prejudice 227 where there are

ongoing administrative appeals or

litigated issues in Federal or state courts

regarding the same permit.

180-Day Time Period for Filing

Complaints: Duration, Waivers and

Effect on Permittees

A number of comments related to the

length of the 180-day time period for

filing. Some felt that it is too long, while

others thought it is too short.

Response: DOJ is responsible for

coordinating the implementation and

enforcement by Executive agencies of

Title VI.228 In fulfilling its

responsibilities, DOJ published

regulations entitled,

‘‘Nondiscrimination in Federally

Assisted Programs-Implementation of

Title VI of the Civil Rights Act of

1964.’’ 229 Among other things, these

regulations discuss the way in which

investigations should be conducted, and

explain, regarding complaints, that: ‘‘A

complaint must be filed not later than

180 days from the date of the alleged

discrimination, unless the time for filing

is extended by the responsible

Department official or his designee.’’ 230

This regulation forms, in part, the basis

for EPA’s own regulations, which

require a complaint to be filed within

180 days. As mentioned above, neither

the filing nor the investigation of a

complaint alleging a Title VI violation

impacts the effectiveness of a permit.

Timing and Sequencing Issues

Issue: One commenter suggested that

Title VI complaints should be filed as

outlined in 40 CFR part 122, which

concerns the issuance of permits under

the National Pollutant Discharge

Elimination System. Several

commenters expressed concern about

when recipients would be notified by

EPA about complaints and how the time

frame for voluntary compliance works.

Some commenters were particularly

concerned about the ‘‘initial finding of

a disparate impact’’ described in the

Interim Guidance.

Response: EPA’s regulations, which

are based on DOJ’s model regulations,231

are specifically intended to address the

processing of Title VI complaints.

Therefore, OCR cannot adopt the

procedures described in other EPA

regulations. The Interim Guidance did

not mention all of the time frames for

conducting complaint investigations

and for attaining compliance set forth in

EPA’s Title VI regulations. To avoid

confusion, the Draft Revised

Investigation Guidance addresses all of

the time frames specified in EPA’s Title

VI implementing regulations.232

Accordingly, the Draft Revised

Investigation Guidance states that OCR

will notify the recipient of a complaint

filed against it within five calendar days

of OCR’s receipt of the complaint.233

The 10-day time frame for a recipient to

come into voluntary compliance is also

a requirement under EPA’s Title VI

regulations.234 Recognizing that

elimination of adverse disparate impacts

within 10 days may not be achievable,

OCR may postpone proceedings to deny,

annul, suspend, or terminate EPA

assistance, if the recipient has

demonstrated a good faith effort (e.g.,

signed a voluntary compliance

agreement) to come into compliance.

Concerning the comment about the

initial finding of disparate impact, the

Draft Revised Investigation Guidance

eliminates that part of the investigation

process. OCR suggested the initial

finding provision primarily to promote

informal resolution before a preliminary

finding of noncompliance, but found

that the provision created confusion.

Instead, EPA now encourages informal

resolution throughout the process, but

particularly early in the process.

Issue: One commenter suggested that

EPA impose a time limit for conducting

a disparate impact analysis.

Response: EPA’s Title VI

implementing regulations state that OCR

will provide its preliminary findings on

a complaint within 180 days from the

start of the complaint investigation.235

As OCR gains more experience with

conducting the necessary analyses, we

expect to reduce the time that it takes.

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 EPA’s Title VI regulations,

after the complainant files a valid Title

VI claim, the recipient should be given

an opportunity to justify its decision

and thereafter the complainant may

identify a less discriminatory

alternative.

Response: Recipients are afforded

several specific opportunities to provide

information to OCR before and during

an investigation. For example, upon

receiving notification of OCR’s receipt

of the complaint, the recipient may

make a written submission responding

to, rebutting, or denying the allegations

in the complaint within 30 calendar

days.237 In any of the recipient’s

submissions, it may provide a

justification for its decision.

Title VI burdens of proof in litigation

inform EPA of what information is

39696 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

238See Coalition of Concerned Citizens Against I–

670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio

1984). 239 Damian, 608 F. Supp. at 127. 240 Id. 241 Id. 242 Id.; see also Sandoval v. L.N. Hagan, 7 F.

Supp. 2d 1234, 1298 (M.D. Ala. 1998) (plaintiffs

prevailed in proving a Title VI violation by offering

an effective less discriminatory alternative).

243See 40 CFR 7.15.

244See 40 CFR 7.120.

245See Draft Revised Investigation Guidance,

section III.A. (describing criteria for accepting or

rejecting complaints).

246 Id., sections I.C. and IV.B.

247 40 CFR 7.120(d)(2).

248See Draft Revised Investigation Guidance,

section IV.A.

249See id., section IV.B.

250 40 CFR 7.120(d)(2). See Draft Revised

Investigation Guidance, section IV.

251 40 CFR 7.115(e), 7.130(b).

necessary to decide whether Title VI has

been violated. In litigation, a plaintiff

(i.e., a person or persons who believe

they have been discriminated against)

must show that an alleged act has a

disparate impact on an identifiable

population defined by race, color, or

national origin.238 If the disparate

impact is shown, the defendants (i.e.,

recipients) must prove that the activity

is justified by a substantial legitimate

justification.239 If the recipient’s

justification meets the test, the plaintiff

may show that there is a less

discriminatory alternative that meets the

same objective.240 The recipient may

rebut this by showing that the

alternatives do not meet its legitimate

objectives.241 If the recipient cannot

rebut the plaintiff’s showing, then there

is a violation of Title VI.242 OCR intends

to apply a similar approach to its

investigations.

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;

(b) A person who is a member of a

specific class of people allegedly

discriminated against in violation of

EPA’s Title VI regulations; or

(c) A party that is authorized to

represent a person or specific class of

people allegedly discriminated against

in violation of EPA’s Title VI.

In some cases, a person or a class of

people allegedly discriminated against

may select a representative from another

geographic area. The regulations allow

complainants to take such action.245

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

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 of recipients to whom EPA

provides financial assistance. Therefore,

an investigation may be needed to

determine the appropriate relief and/or

corrective action.

Suspension of Federal Assistance

Some commenters asked EPA to

explain EPA’s authority to terminate

funding and to specify which Federal

funds could be affected by a finding of

noncompliance with Title VI and how

that process would proceed.

Response: Whenever possible, OCR

will attempt to resolve complaints

informally, as described above.250 If this

fails and OCR makes a formal

determination of noncompliance and

the recipient does not voluntarily

comply, OCR must start proceedings to

deny, annul, suspend, or terminate EPA

assistance,251 or ‘‘use any other means

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39697

252 40 CFR 7.130(a).

253 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.’’).

256See Interim Guidance at 3; Draft Revised

Investigation Guidance, section II.A.7.

257 42 U.S.C. 2000d.

258Public Law 100–259, 102 Stat. 28 (1988).

259 42 U.S.C. 2000d–4a.

260 40 CFR 7.130(b)(4).

261See Memorandum from Attorney General

supra note 7, at 1.

262 Id.

263Assessing a significant overall decrease would

entail taking into account factors such as total

quantity and relative toxicity of the emissions

reductions.

264See 40 CFR 7.120 (stating the criteria for

accepting a complaint); Draft Revised Investigation

Guidance, sections III.A. and VI.B.1.a.

265See Draft Revised Investigation Guidance,

Glossary.

266See id., section VI.B.1.a.

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

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

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.

39698 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

267See id., section VI.B.1.a.

268 Id., section V.B.2.; Draft Recipient Guidance

sections II.A.2. and 3.

269See Draft Revised Investigation Guidance,

section V.B.2.

270 40 CFR 7.130(b); Draft Revised Investigation

Guidance, section II.A.6.

271 40 CFR 7.130(a); Draft Revised Investigation

Guidance, section II.A.6.

272See Draft Revised Investigation Guidance,

section VI.

273 Id., section VI.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.

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 (areaspecific 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

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 requested that

EPA develop a Title VI complaint

process flowchart. Another commenter

requested clarification as to who would

be responsible for implementing the

Interim Guidance.

Response: A flowchart that outlines

the steps in the process described by

EPA’s Title VI regulations has been

included as an appendix to the Draft

Revised Investigation Guidance.

OCR has the responsibility within

EPA to process and review Title VI

administrative complaints, and both the

Interim Guidance and the Draft Revised

Investigation Guidance are mainly

directed at EPA staff in that office.

However, OCR typically involves staff

with appropriate expertise from other

EPA offices and regions to assist in its

investigations. The guidance also

provides direction to these staff persons

as they assist OCR in the investigation.

Impacts and the Disparate Impact

Analysis

Substantial Impairment

One commenter requested

clarification as to what constitutes a

‘‘significant’’ disparate impact, citing

EPA’s regulations that require a

‘‘substantial impairment’’ of program

objectives to establish a disparate

impact.

Response: OCR has provided more

detail and clarity in the Draft Revised

Investigation Guidance about the

process for determining whether an

adverse disparate impact exists.272

However, given the infinite number of

possible permutations of facts,

allegations, and circumstances, defining

an across-the-board standard of what

level of harm or disparity constitutes

‘‘significant’’ is infeasible. Instead, the

Draft Revised Investigation Guidance

explains more clearly how OCR will

determine whether it exists. The Draft

Revised Investigation Guidance

describes how EPA will use

environmental statutes, regulations,

policy, and science as measures for

determining thresholds for what is

adverse.273

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39699

276 Draft Revised Investigation Guidance, section

VI.B.4.

277See Draft Revised Investigation Guidance,

section VI.B.3.

278The 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.

279See Draft Revised Investigation Guidance,

section VI.B.5.

280 40 CFR 7.25.

281 Id. at n.1.

282See Draft Revised Investigation Guidance,

section VI.B.5.

283See Draft Revised Investigation Guidance,

sections VI.B.2. and 3.

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.276 In fact, the Draft

Revised Investigation Guidance

specifically includes consideration of

health impacts in terms of risk.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

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

cumulative impacts because they were

concerned about how cumulative

impacts could be quantified.

Response: The Draft Revised

Investigation Guidance provides more

clarity about the process of identifying

the scope of an adverse disparate impact

analysis that OCR may conduct as part

of an investigation. Rather than

attempting to summarize that lengthy

process here, readers should refer to the

Draft Revised Investigation Guidance for

an explanation of how OCR expects to

evaluate allegations concerning

cumulative impacts.283

Commenter’s Suggested Alternative

Approach to Adverse Disparate Impact

Analysis

One commenter provided EPA with

an alternative approach to simplify

OCR’s analysis of Title VI complaints.

The primary elements of the proposal

include: (1) Defining the affected area as

a circle of radius one-half to one mile

from the facility; (2) assessing the public

health status of the affected population

based on mortality, cancer, infant

mortality and low birth weight rates;

and (3) determining the health rate to be

substandard when it deviates by 10 to

20 percent from the ‘‘standard’’

(comparison population) rate. Permits to

build or operate a new facility in any

area with substandard health rates

would be prohibited. The commenter

asks whether this proposal could be

adopted by OCR.

Response: Both Title VI and EPA’s

implementing regulations prohibit

discrimination on the basis of race,

color, or national origin in the programs

and activities of EPA financial

assistance recipients. As a result, a

finding of non-compliance with the

statute or regulations requires a finding

that the programs or activities of a

recipient involved intentional

discrimination or caused a

discriminatory effect.

The proposal does not appear to

require any link between the adverse

health effects and the programs or

activities of a recipient. In addition, it

does not consider any disparity on the

basis of race, color, or national origin.

While the proposal may warrant

consideration as a way of identifying

public health ‘‘hot spots,’’ it would not

be an appropriate basis for OCR to make

a finding of non-compliance with Title

VI or EPA’s implementing regulations.

39700 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices

284 Draft Revised Investigation Guidance sections

VI.B.5. and 6.

285 40 CFR 7.120(d)(2). 286See 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). 287See Draft Revised Investigation Guidance,

sections I.C. and IV.B. 288 Draft Revised Investigation Guidance, section

V.B.2.; Draft Recipient Guidance, section II.A.2.

289 Draft Revised Investigation Guidance, section

IV.290See 40 CFR 7.120(d)(2). 291See Draft Revised Investigation Guidance,

section IV; Draft Recipient Guidance, section II.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).

Clarifications Regarding Disparity of

Impact

A number of commenters requested

additional details regarding the

disparate impact analysis. For instance,

commenters requested that EPA provide

additional details regarding the

statistical analysis that will be

conducted, the backgrounds of the

experts that will be conducting the

analysis, and what comparisons would

be appropriate within the affected

population.

Response: OCR provided more

specificity about the disparate impact

analysis in the Draft Revised

Investigation Guidance, including

additional details about what

constitutes disparity and options for

selecting comparison populations.284

OCR intends to select an appropriate

statistical or mathematical analysis

based upon various factors, including

the allegations and available data. That

analysis will be performed or reviewed

by those with the relevant professional

training and expertise. The Draft

Revised Investigation Guidance is not

intended to comprehensively address

every scenario that may arise in the

interaction between Title VI, EPA’s Title

VI regulations, and environmental

permitting. Given the infinite number of

possible permutations of facts,

allegations, and circumstances, such an

approach is infeasible. Instead, the Draft

Revised Investigation Guidance

provides a framework explaining how

EPA intends to implement its

responsibilities under Title VI as a

general matter. OCR then expects to

apply the guidance’s framework

according to the specific facts and

circumstances of each complaint.

In terms of the appropriate

comparison populations, the zoning or

land use designation of an area has been

offered as a possible basis on which to

compare impacts and demographics.

OCR does not expect to use those factors

when evaluating an affected population

against a comparison population.

Consideration of zoning would place an

inappropriate focus on the siting of

facilities. The Interim Guidance and the

Draft Revised Investigation Guidance

focus on permitting. The impacts

addressed by the guidance documents

do not necessarily stay within areas that

are zoned ‘‘industrial’’; they may affect

‘‘residential’’ areas, ‘‘commercial’’ areas,

and areas with other designations. In

addition, many impacts are felt in areas

designated for ‘‘mixed-use,’’ but that

fact alone should not lead to reduced

protections for the local residents.

Therefore, an arbitrary comparison of

populations with similar zoning would

be inappropriate, as well as impractical.

Resolving Complaints and Justification

Remedial Measures/Mitigation

Issue: Several commenters requested

clarification on the process of mitigation

as described in the Interim Guidance.

Response: EPA’s Title VI regulations

call for OCR to pursue informal

resolution of administrative complaints

wherever practicable.285 The Agency

expects that measures that reduce or

eliminate alleged disparate impacts will

be an important focus of the informal

resolution process. Section IV of the

Draft Revised Investigation Guidance

contains a more detailed discussion of

such measures, drawn heavily from the

Title VI Implementation Advisory

Committee report,286 than the Interim

Guidance. Moreover, the Draft Recipient

Guidance also discusses measures to

reduce adverse disparate impacts in

section II.B.6.

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.288

Efforts to reduce impacts could

include measures that are narrowly

tailored toward contributing sources,

including the permit at issue, using the

recipient’s existing permitting

authorities. Such measures include

changes in policies or procedures,

additional pollution control, pollution

prevention, offsets; and emergency

planning and response. More broadly

focused efforts might deal with the

combined impacts of several

contributing sources, taking into

account both the approximate

contributions and the degree to which

the sources may be covered by various

authorities available to the recipient.289

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

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39701

295See Draft Revised Investigation Guidance,

section VII.A.

296See 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). 297See Draft Revised Investigation Guidance,

section IV.

298See Draft Revised Investigation Guidance,

sections II.B. and V.A.

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

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

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]

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