Federal Register / Vol. 78, No. 81 / Friday, April 26, 2013 / Notices 24739 

surfaces of enclosed animal isolator 

units used at USDA National Veterinary 

Services Laboratories (NVSL) and the 

National Animal Disease Center (NADC) 

in Ames, IA. Information in accordance 

with 40 CFR part 166 was submitted as 

part of this request. 

As part of this request, the applicant 

asserts that without the ability to 

sterilize animal isolators, NVSL and 

NADC would not be able to conduct 

studies of national importance. NVSL 

and NADC provide diagnosis for animal 

diseases and diagnostic support for 

disease control and eradication. 

Ethylene oxide is an effective sterilizer, 

yet is non-corrosive on delicate 

instruments and electrical equipment. 

The applicant proposes that enclosed 

animal isolator units used at USDA 

NVSL and NADC in Ames, IA will be 

sterilized 5 to 7 times over the 3-year 

term of the exemption. Six pounds of 

product (8.6% ethylene oxide) will be 

applied to each unit for each 

sterilization. 

This notice does not constitute a 

decision by EPA on the application 

itself. The regulations governing FIFRA 

section 18 require publication of a 

notice of receipt of an application for a 

quarantine exemption proposing use of 

a pesticide which contains an active 

ingredient which is or has been the 

subject of a Special Review, and which 

could pose a risk similar to the risk 

which is or has been the subject of the 

Special Review. The notice provides an 

opportunity for public comment on the 

application. The Agency will review 

and consider all comments received 

during the comment period in 

determining whether to issue the 

quarantine exemption requested by the 

USDA APHIS. 

List of Subjects 

Environmental protection, Pesticides 

and pests. 

Dated: April 19, 2013. 

Daniel J. Rosenblatt, 

Acting Director, Registration Division, Office 

of Pesticide Programs. 

[FR Doc. 2013–09954 Filed 4–25–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OA–2013–0133; FRL–9805–9] 

Draft Policy Papers Released for 

Public Comment: Title VI of the Civil 

Rights Act of 1964: Adversity and 

Compliance With Environmental 

Health-Based Thresholds, and Role of 

Complainants and Recipients in the 

Title VI Complaints and Resolution 

Process 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Request for comments on EPA’s 

Draft Policies. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) has made 

improving its civil rights program a 

priority and recognizes that its 

enforcement of Title VI of the Civil 

Rights Act of 1964 (Title VI) is an 

important tool to use to protect against 

discrimination and ensure that 

recipients of EPA financial assistance do 

not discriminate in implementing 

programs and activities. Today, EPA has 

released two draft policy papers for 

public comment. The first draft policy 

paper, Title VI of the Civil Rights Act of 

1964: Adversity and Compliance with 

Environmental Health-Based 

Thresholds, proposes to change the way 

EPA assesses ‘‘adversity’’ by having the 

Agency refrain from applying a 

‘‘rebuttable presumption’’ in certain 

Title VI investigations. The second draft 

policy paper, Role of Complainants and 

Recipients in the Title VI Complaints 

and Resolution Process, discusses EPA’s 

proposed position on clarifying the roles 

of complainants and recipients in the 

Title VI complaints process. 

DATES: Written comments on this draft 

must be received on or before May 28, 

2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OA–2013–0133, by one of the following 

methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: ORD.Docket@epa.gov. 

• Fax: 202–566–1753. 

• Mail: Environmental Protection 

Agency, Mailcode: 2822T, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. 

• Hand Delivery: ‘‘EPA’s Draft 

Policies entitled Title VI of the Civil 

Rights Act of 1964: Adversity and 

Compliance with Environmental HealthBased Thresholds, and Role of 

Complainants and Recipients in the 

Title VI Complaints and Resolution 

Process’’ Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC 20460. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OA–2013– 

0133. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov. 

The www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov your email address 

will be automatically captured and 

included as part of the comment that is 

placed in the public docket and made 

available on the Internet. If you submit 

an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. If you previously submitted 

comments to OCR via EPA’s Web site, 

those comments will automatically be 

placed in the Docket and do not need to 

be resubmitted. For additional 

information about EPA’s public docket 

visit the EPA Docket Center homepage 

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

dockets.htm. Docket: All documents in 

the docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials regarding this notice are 

available either electronically in 

www.regulations.gov or in hard copy at 

the ‘‘EPA’s Draft Policies entitled Title 


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1Upon finalization of this paper, the policy 

described herein will supersede the corresponding 

discussions in the Draft Revised Guidance for 

Investigating Title VI Administrative Complaints 

Challenging Permits, 65 FR 39,667, 39,678, 39,680– 

81 (2000) (discussing relevance of recipients’ 

authority and compliance with National Ambient 

Air Quality Standards) [hereinafter 2000 Draft 

Guidance]. 

2See United States Dep’t of Transp. v. Paralyzed 

Veterans, 477 U.S. 597, 600 n.4 (1986) (stating that 

courts have ‘‘relied on case law interpreting Title 

VI as generally applicable to later statutes’’). Other 

relevant recipient nondiscrimination statutes 

include section 504 of the Rehabilitation Act of 

1973, 29 U.S.C. 794, the Age Discrimination Act of 

1975, 42 U.S.C. 6101–6107, and section 13 of the 

Federal Water Pollution Control Act Amendments 

of 1972, 33 U.S.C. 1251. 

3Nonetheless, EPA continues to review programs 

and best practices in place in other federal agencies 

to ensure consistency to the extent applicable and 

identify approaches that may be transferable to 

EPA’s Title VI program. 

VI of the Civil Rights Act of 1964: 

Adversity and Compliance with 

Environmental Health-Based 

Thresholds, and Role of Complainants 

and Recipients in the Title VI 

Complaints and Resolution Process’’ 

Docket, EPA/DC, EPA West, Room 3334, 

1301 Constitution Ave. NW., 

Washington, DC 20460. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 202–566–1752. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

information on the docket, 

www.regulations.gov, or the public 

comment period, please contact the 

Office of Environmental Information 

(OEI) Docket (Mail Code: 2822T), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460; telephone: 202–566–1752; 

facsimile: 202–566–1753; or email: 

ORD.Docket@epa.gov. 

For information on the draft policy 

papers, please contact Helena WoodenAguilar, U.S. Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460; telephone: 

202–564–7272; facsimile: 202–565– 

0196; or email: woodenaguilar.helena@epa.gov. 

SUPPLEMENTARY INFORMATION: 

1. General Information 

The U.S. Environmental Protection 

Agency (EPA) has made improving its 

civil rights program a priority and 

recognizes that its enforcement of Title 

VI of the Civil Rights Act of 1964 (Title 

VI) is an important tool in its efforts to 

protect against discrimination and 

ensure that recipients of EPA financial 

assistance do not discriminate in 

implementing programs and activities. 

To that end, in 2009, EPA made a 

commitment to strengthen and revitalize 

EPA’s Civil Rights and Diversity 

Programs. In addition to increasing staff, 

securing additional training and 

improving processes, as part of that 

effort, in 2010, EPA funded an 

independent in-depth evaluation of its 

civil rights program by the firm Deloitte 

Consulting LLP. Following receipt of the 

evaluation, the Administrator 

established a Civil Rights Executive 

Committee to review Deloitte’s 

evaluation, and other sources of 

information, and make 

recommendations for building a model 

civil rights program for EPA. The 

Executive Committee posted its draft 

report for public review in February 

2012, and the Administrator approved 

the final report and recommendations 

on April 13, 2012. Implementation of 

those recommendations is ongoing. 

One of the recommendations was for 

EPA to develop policy statements and 

guidance that elucidates the analytical 

framework for reviewing Title VI 

complaints and for the use of ADR in 

resolving such complaints. To advance 

the dialogue on these issues, and 

consistent with its goal to promote 

transparency, EPA is seeking input and/ 

or comment, on two policy issues that 

can improve the Title VI complaint 

process for all involved stakeholders. 

EPA initially posted these documents 

on its Web site and sent notification of 

the posting to stakeholders who 

previously had expressed an interest in 

agency activities. EPA is now 

publishing in the Federal Register in an 

effort to further expand the potential 

audience who may see these documents. 

Also, EPA will host two outreach 

sessions via teleconference with 

interested stakeholders concerning these 

two draft policies. For more information 

about the scheduled teleconferences, 

please go to http://www.epa.gov/ocr/

title6policy. 

At the same time, EPA is interested in 

building an email distribution list of 

individuals, organizations, and entities 

that have an interest in EPA’s External 

Civil Rights Program, including Title VI. 

To this end, if you are interested, please 

go to www.epa.gov/ocr to add your 

name to the list. 

2. Draft Proposed Policy Entitled Title 

VI of the Civil Rights Act of 1964: 

Adversity and Compliance With 

Environmental Health-Based 

Thresholds 

I. Introduction 

A. Purpose: This paper outlines the 

U.S. Environmental Protection Agency’s 

(EPA’s or Agency’s) current thinking 

about enforcement of Title VI of the 

Civil Rights Act of 1964 concerning how 

compliance with environmental healthbased thresholds relates to ‘‘adversity’’ 

in the context of disparate impact 

claims about environmental permitting.1

This paper does not address 

allegations about intentional 

discrimination, most non- permitting 

fact patterns, or technology- and costbased standards; it is focused on 

discriminatory effects allegations that 

relate to the health protectiveness of 

pollution control permits issued by 

recipient agencies. In particular, this 

paper concerns the adversity prong of 

the prima facie case and does not 

address the other analytical steps 

necessary to determine whether a 

violation has occurred. While this paper 

discusses Title VI, the principles 

discussed here also apply to the other 

recipient nondiscrimination statutes,2 as 

well as compliance with health 

thresholds in some non-permitting 

settings, such as brownfields cleanups. 

B. Background: The Agency has 

encountered a number of complex and 

unique issues of law and policy in the 

course of Title VI complaint 

investigations, especially allegations 

concerning the protectiveness of 

environmental permits issued by state 

and local agencies that receive EPA 

financial assistance. These challenges 

have been the consequence of the need 

to merge the objectives and 

requirements of Title VI with the 

objectives and requirements of the 

environmental laws that the Agency 

implements. The Agency’s 

environmental regulatory mandates 

require complex technical assessments 

regarding pollution emissions, 

exposures, and cause-effect 

relationships. In addition, the 

cooperative federalism approach 

embodied in the federal environmental 

statutes requires that EPA accomplish 

its environmental protection objectives 

in close coordination with state and 

local environmental regulators. Such 

issues do not have ready analogues in 

the context of other federal agencies’ 

Title VI programs.3

The Agency’s historical efforts in its 

Title VI program have been the subject 

of some criticism over the years. One 

particular criticism arose in response to 

the Agency’s 1998 Select Steel 

decision—the origin of the rebuttable 

presumption addressed below. In Select 

Steel, EPA’s Office of Civil Rights (OCR) 

dismissed an administrative complaint 

concerning a permit issued by the 


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4 In its evaluation of the NAAQS, OCR noted that 

‘‘[t]he NAAQS for ozone [and lead] is a healthbased standard which has been set at a level that 

is presumptively sufficient to protect public health 

and allows for an adequate margin of safety for the 

population within the area.’’ Letter from Ann E. 

Goode, Director, EPA/OCR, to Father Phil Schmitter 

and Sister Joanne Chiaverini, Co-Directors, St. 

Francis Prayer Center 3 (Oct. 30, 1998) [hereinafter 

Goode Letter]. OCR further noted that the NAAQS 

provides ‘‘protection for group(s) identified as being 

sensitive to the adverse effects of the NAAQS 

pollutants.’’ Office of Civil Rights, U.S. 

Environmental Protection Agency, Investigative 

Report for Title VI Administrative Complaint File 

No. 5R–98–R5 (Select Steel Complaint) 14 (1998) 

[hereinafter Select Steel Report]. As applied to the 

complaint, OCR found that the area around the 

proposed Select Steel facility would attain the 

NAAQS for ozone and lead, and that there was no 

evidence suggesting other concerns. As a result, 

OCR concluded that no adverse impacts occurred 

with respect to the state’s permitting emissions of 

those pollutants. See Goode Letter at 3–4; Select 

Steel Report at 27–33. 

5See 2000 Draft Guidance at 39,680–81. 

6See Lincoln v. Vigil, 508 U.S. 182, 191 (1993); 

Webster v. Doe, 486 U.S. 592, 599 (1988); Heckler 

v. Chaney, 470 U.S. 821, 831 (1985). 

7The information in this subsection is intended 

as background. It does not change any of EPA’s 

policies or practices. 

8The complaint must be in writing, state a claim, 

be timely, and concern a recipient. See 40 CFR 

7.120(b). In addition, EPA evaluates whether the 

complaint is ripe or moot, whether the complainant 

has standing, whether the complaint should be 

referred to another federal agency, and whether 

clarification is required, among other things. See 40 

CFR 7.120(a), (d)(1)(i); Federal Coordination and 

Compliance Section, U.S. Dep’t of Justice, 

Investigation Procedures Manual for the 

Investigation and Resolution of Complaints Alleging 

Violations of Title VI and Other Nondiscrimination 

Statutes 12, 16–21, 37–41 (1998). 

9See Elston v. Talladega County Bd. of Educ., 997 

F.2d 1394, 1407, 1413 (11th Cir. 1993); Larry P. v. 

Riles, 793 F.2d 969, 982 (9th Cir. 1984). 

10See New York City Envtl. Justice Alliance v. 

Giuliani, 214 F.3d 65, 69 (2d Cir. 2000) (noting that 

a prima facie case requires ‘‘a causal connection 

between a facially neutral policy and a 

disproportionate and adverse impact,’’ and 

dismissing the case because plaintiffs failed to 

establish causation). 

11The term ‘‘environmental health-based 

thresholds’’ is intended to encompass both 

enforceable regulatory standards (e.g., NAAQS) and, 

in cases where such standards are not relevant, nonenforceable health-based target levels (e.g., 

reference doses for noncarcinogenic effects in the 

Integrated Risk Information System). 

Michigan Department of Environmental 

Quality for the Select Steel facility 

based, in part, on the fact that the 

applicable National Ambient Air 

Quality Standards (NAAQS) were 

already being met, and that the facility’s 

permitted emissions, in combination 

with other stressors, were not causing 

an adverse effect.4 The rebuttable 

presumption approach was incorporated 

into the Draft Revised Guidance for 

Investigating Title VI Administrative 

Complaints Challenging Permits.5

The Agency has elected to reexamine 

the weight it accords compliance with 

environmental health-based thresholds 

because this issue, in particular, sits 

directly at the crossroads of 

environmental and civil rights law, and 

to respond to concerns raised by 

external Title VI stakeholders. 

In examining this issue, EPA is 

mindful of the broad discretion afforded 

to federal agencies in the enforcement of 

federal statutes, including enforcement 

of federal financial assistance recipients’ 

obligations under Title VI. This 

discretion applies to how agencies elect 

to enforce Title VI, including 

determining which Title VI issues to 

investigate.6

C. Title VI Legal Framework: 7 Many 

Title VI investigations concern 

administrative complaints alleging 

adverse disparate impacts from the 

issuance of an environmental permit. 

Such complaints are filed pursuant to 

EPA’s Title VI regulations. When 

assessing such complaints, EPA first 

determines whether it has jurisdiction 

over the complaint.8 If so, the Agency 

then applies the analytical framework 

for assessing significant adverse 

disparate impact claims established by 

the courts: 9

1. Is there a prima facie case? (The 

following three elements need not be 

established in order). 

a. Does the alleged discriminatory act 

have an adverse impact? 

b. Is that adverse impact suffered 

disparately? 

c. Is the adverse disparate impact 

caused by the recipient? 

2. Can the recipient offer a substantial 

legitimate justification for its action? 

3. Is there a less discriminatory 

alternative? 

This paper focuses only on a 

particular issue that may arise in the 

course of conducting the inquiry 

described in step 1.a., above. A finding 

of adversity, by itself, does not amount 

to a finding of a Title VI violation, 

which requires inquiry into all three of 

the steps outlined above, as well as the 

sub-elements of step 1 (i.e., step 1.b. and 

1.c.).10

II. Consideration of Environmental 

Health-Based Thresholds 

In the course of investigating 

complaints of discrimination arising 

from the issuance of environmental 

permits, EPA may need to consider 

whether a permit that complies with a 

health- based threshold can nevertheless 

cause an adverse impact. Such 

assessments may involve analyses that 

are complex or, in some cases, simply 

infeasible with existing technical 

capabilities. Consequently, the Agency 

believes that the issue of establishing 

adversity warrants further consideration 

as described below. 

A. Issue: How does compliance with 

environmental health-based 

thresholds 11 relate to whether adversity 

exists in Title VI investigations? 

B. Current Position: The 2000 Draft 

Guidance addresses the question of how 

to analyze adversity in a case where the 

NAAQS—which is a health-based 

standard—is being met. It states that 

attainment of health-based NAAQS 

creates a rebuttable presumption that no 

adverse impacts are caused by the 

permit at issue with respect to the 

relevant NAAQS pollutant(s) for 

purposes of Title VI. As applied in an 

investigation involving the NAAQS, 

EPA would first establish whether the 

area in question was attaining the 

NAAQS for the relevant pollutant. If so, 

EPA would presume that the adversity 

component of the prima facie case was 

not satisfied (i.e., there is no adversity) 

and then dismiss the complaint. 

However, if the investigation produced 

evidence that significant adverse 

impacts may be occurring with respect 

to the NAAQS pollutant despite 

attainment of the NAAQS, the 

presumption would be rebutted and 

EPA would continue to investigate the 

remaining prongs of the prima facie 

case. While the 2000 Draft Guidance 

spoke specifically to NAAQS, EPA has 

considered the issue of the rebuttable 

presumption as it might apply to any 

health-based threshold and the position 

set forth in this paper is applicable to 

any complaint in which a health-based 

threshold is present, not just NAAQS. 

C. Proposed Position: While EPA has 

had little or no opportunity to apply the 

rebuttable presumption (that is, this 

issue has been discussed in the abstract, 

and has not been applied to any 

particular case following issuance of the 

2000 Draft Guidance), EPA now intends 

to eliminate application of the 

rebuttable presumption when 

investigating allegations about 

environmental health-based thresholds. 

Compliance with a health-based 

threshold such as a NAAQS is a serious 

consideration in an evaluation of 

whether adverse disparate impact exists. 

As described below, the Agency will 

also assess other information that may 

be available and appropriate when 

investigating whether adverse health 

impacts exist. While no presumption is 

established, compliance with a healthbased threshold would be considered, 

along with other information, to enable 

the Agency to focus on the most 

significant cases (i.e., those representing 


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12The 2000 Draft Guidance Defined ‘‘cumulative 

impacts,’’ see 65 FR 39,684, and discussed it further 

at 65 FR 39,678–81. 

13The Agency expects to evaluate relevant data 

from a wide variety of sources, such as Toxics 

Release Inventory; National Air Toxics Assessment; 

Comprehensive Environmental Response, 

Compensation, and Liability Information System; 

state and local databases; and monitor-specific data. 

14EPA implements Title VI, section 504 of the 

Rehabilitation Act of 1973 (EPA regulations at 40 

CFR part 12), section 13 of the Federal Water 

Pollution Control Act Amendments of 1972, Title 

IX of the Education Amendments of 1972 (EPA 

regulations at 40 CFR part 5), and the Age 

Discrimination Act of 1975, which prohibit 

discrimination based on race, color, national origin, 

disability, sex (in limited circumstances), and age. 

EPA’s regulation at 40 CFR part 7, entitled 

‘‘Nondiscrimination in Programs or Activities 

Receiving Federal Assistance from EPA,’’ includes 

general and specific prohibitions against intentional 

and disparate effects or disparate impact 

discrimination by EPA’s assistance recipients on 

the basis of race, color, national origin, sex(in 

limited circumstances), or disability, and age. Every 

EPA grant recipient, including each state 

environmental agency receiving financial assistance 

from EPA, is subject to the terms of 40 CFR part 

7. 

15All determinations about if any action 

described in this document is ‘‘appropriate’’ will be 

made by the EPA as part exercise of enforcement 

discretion, which was recognized by the Supreme 

Court in Alexander v. Choate, 469 U.S. 287, 293– 

294 (1985). 

the highest environmental and public 

health risk) and to determine whether 

adversity exists. 

Environmental health-based 

thresholds are set at levels intended to 

be protective of public health. While 

compliance with such thresholds does 

not guarantee no risk, such compliance 

strongly suggests that the remaining 

risks are low and at an acceptable level 

for the specific pollutant(s) addressed 

by the health-based threshold. At the 

same time, EPA believes that presuming 

compliance with civil rights laws 

wherever there is compliance with 

environmental health-based thresholds 

may not give sufficient consideration to 

other factors that could also adversely 

impact human health. 

The approach proposed here differs 

from the 2000 Draft Guidance’s 

rebuttable presumption. Under the 

latter, complying with the NAAQS 

created a presumption of no adversity 

that would stand unless affirmatively 

overcome. By contrast, this proposal 

acknowledges the relative significance 

of compliance with an environmental 

health-based threshold, while also 

evaluating a number of other factors, as 

appropriate, including the existence of 

hot spots, cumulative impacts,12 the 

presence of particularly sensitive 

populations that were not considered in 

the establishment of the health-based 

standard, misapplication of 

environmental standards, or the 

existence of site-specific data 

demonstrating an adverse impact 

despite compliance with the healthbased threshold. Because EPA believes 

that the NAAQS (and other health-based 

thresholds) can be valid and 

appropriate, and yet not assure in all 

cases that no adverse impact is created, 

EPA will no longer presume an absence 

of adversity if a NAAQS (or another 

health-based threshold) is satisfied. 

Instead, EPA would consider such 

compliance concurrently with the type 

of information described above. 

While EPA is eliminating the 

applicability of the rebuttable 

presumption from its analyses, 

nevertheless, there may be other 

features present that may impact EPA’s 

ability to consider other information 

concurrently with compliance with 

health-based thresholds. Examples of 

such features include, but are not 

limited to, the Agency’s existing 

technical capabilities and the 

availability of credible, reliable data 

(given the practical constraints of 

complaint investigations, EPA expects 

to gather pre-existing technical data 

rather than generating new data).13

If the assessment of relevant factors 

fails to establish the adversity element 

of the prima facie case, EPA would 

ordinarily dismiss the allegation. 

Alternatively, if the assessment 

establishes adversity, EPA would then 

evaluate disparity and complete the 

other steps in the analysis set forth in 

Section I.C. To assist in its data 

collection, the Agency expects to solicit 

input from both complainants and 

recipients about these factors during the 

course of its investigations. 

As the Title VI analytical framework 

described in Section I.C. illustrates, the 

issue addressed in this paper is not the 

only question that must be addressed in 

the investigation process. Others may 

require elaboration in the future as well. 

Moreover, there will be further work 

necessary to develop and implement the 

policy issue addressed here. Thus, the 

analysis here does not represent the end 

point, but rather an important step 

forward in considering and evaluating 

these and other policy issues raised in 

EPA’s Title VI work. 

3. Draft Proposed Policy Entitled Role 

of Complainants and Recipients In 

the Title VI Complaints and 

Resolution Process 

I. Introduction 

EPA has made improving its civil 

rights program a priority and recognizes 

that its enforcement of Title VI of the 

Civil Rights Act of 1964 (Title VI), as 

amended, and other nondiscrimination 

statutes is an important tool in the 

Agency’s efforts to address 

discrimination.14

The purpose of this paper is to set 

forth the U.S. Environmental Protection 

Agency’s current thinking on the roles 

of complainants and recipients in EPA’s 

Title VI administrative complaint 

processing and resolution efforts. The 

proposed approaches discussed below 

clarify and expand upon how EPA will 

implement its current regulations. In 

discussing these proposed approaches, 

EPA seeks to strike a balance between 

providing greater involvement for 

complainants in the complaint process 

while continuing to work closely with 

recipients, as detailed in the regulations, 

to address complaints filed against them 

and, as appropriate, in EPA’s discretion, 

resolve complaints where possible. 

A Title VI complainant is not like a 

plaintiff in court. Rather, a 

complainant’s role is more like that of 

a tipster, who reports what he or she 

believes is an act violating Title VI by 

an entity receiving federal financial 

assistance (the recipient) to the 

associated agency providing such 

assistance, in this case EPA. EPA is not 

in an adjudicatory role, evaluating 

evidence produced by opposing sides, 

but instead investigates allegations 

about its recipient, and reaches a 

conclusion regarding whether a 

violation of Title VI has occurred. 

EPA’s regulations do not prescribe a 

role for the complainant once he or she 

has filed a complaint. Nevertheless, one 

of EPA’s goals is to promote 

appropriate 15 involvement by 

complainants and recipients in the Title 

VI complaint process. This paper 

addresses how EPA will enhance the 

roles and opportunities for 

complainants and recipients to 

participate in the complaint and 

resolution process including efforts 

related to informal resolution and 

voluntary compliance. 

This document does not change or 

substitute for any law, regulation, or any 

other legally binding requirement; is not 

legally enforceable; and does not impose 

any legally binding requirements. 

II. Current Position 

A. Complainants: EPA’s Draft Revised 

Guidance for Investigating Title VI 

Administrative Complaints Challenging 

Permits (issued in June 2000) (Draft 

Investigation Guidance), states that 

complainants may play an important 

role in the administrative process; 

however, that role is determined by the 

nature and circumstances of the 


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16See Draft Revised Investigation Guidance, 65 

FR 39,650, 39,671 (proposed June 27, 2000). 

17 40 CFR 7.120(d)(1). 

18See Draft Revised Investigation Guidance, 65 

FR at 39,671. 

19 40 CFR 7.85(b), (f). 

20 In addition to considering information supplied 

by recipients, OCR will also evaluate information 

provided by complainants. 

21 40 CFR 7.120(d)(1)(iii). 

22 40 CFR 7.115(d)(2). 

23 40 CFR 7.130(b)(2). 

24 40 CFR 7.130(b)(3). 

25When preliminary finding has been made and 

the EPA is engaging in voluntary compliance in 

accordance with 40 CFR 7.115(d), EPA retains the 

discretion to contact the Recipient first. 

claims.16 Specifically, during the 

jurisdictional review of Title VI 

complaints, OCR may seek clarification 

regarding the issues articulated by the 

complainants.17 OCR may also request 

interviews of complainants or request 

additional information from the 

complainants during the course of an 

investigation. Finally, in appropriate 

cases, OCR may offer complainants and 

recipients an opportunity to participate 

in Alternative Dispute Resolution 

concerning the matters raised in the 

complaint. 

B. Recipients: EPA’s Draft 

Investigation Guidance states that 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.18 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. Moreover, under EPA’s 

Title VI regulations, OCR has the 

authority to obtain information from 

recipients and interview recipient 

staff.19 Full and expeditious disclosure 

of such information helps to facilitate 

resolution of Title VI complaints.20

EPA’s Title VI regulations provide the 

recipient with several opportunities to 

respond to the complaint and to any 

OCR finding. First, the recipient may 

make a written submission responding 

to, rebutting, or denying the allegations 

raised in a complaint.21 Second, OCR 

may 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 finding is incorrect or 

that compliance may be achieved 

through steps other than those 

recommended by OCR.22

Finally, if OCR begins the procedure 

to deny, annul, suspend, or terminate 

EPA assistance, recipients may request 

a hearing before an Administrative Law 

Judge (ALJ)23 and, if the ALJ’s decision 

upholds a finding of noncompliance, 

the recipient may then file exceptions 

with the Administrator.24

III. Proposed Position 

EPA has evaluated its current policy 

and practices on the role and 

opportunities of complainants and 

recipients in complaint processing and 

resolution efforts. The following is 

intended to clarify and expand on EPA’s 

existing policy and practices in this 

regard. 

EPA intends to follow these 

principles in the processing and 

resolution of Title VI complaints, as 

applicable and appropriate: 

A. Complaint Process 

1. EPA may seek clarification from the 

complainants during its initial review of 

the administrative complaint. At the 

time they file a complaint, complainants 

should provide EPA any relevant 

information available to them which 

supports their claim(s). 

2. Upon acceptance of a complaint, 

but prior to the initiation of an 

investigation, EPA will offer in 

appropriate cases, at EPA’s expense, 

complainants and recipients the 

opportunity to engage in Alternative 

Dispute Resolution efforts. EPA 

considers the ADR process to be a viable 

option for complainants and recipients 

to address some, if not all, of the issues 

raised in a complaint. 

3. EPA will continue its present 

practice of requesting additional 

information (e.g. interviews) from the 

complainants and recipients during the 

course of an investigation. 

4. EPA will make information in its 

case tracking system available. 

B. Informal Resolution And/Or 

Voluntary Compliance 

EPA may, at any point prior to a 

preliminary finding of compliance, seek 

to informally resolve complaints of 

discrimination. 

Following issuance of a preliminary 

determination of noncompliance, EPA 

may enter into a voluntary compliance 

agreement with a recipient to resolve a 

complaint. Where EPA issues a 

preliminary finding of noncompliance, 

in addition to notifying the recipient, 

per the regulations, EPA intends to 

notify complainant of said finding.25

EPA will also, at the appropriate time, 

notify the public of a preliminary 

finding of noncompliance by posting its 

decision on its public access Web sites. 

If resolution discussions are occurring 

between EPA and the recipient, EPA 

will use its discretion, when 

appropriate, to engage complainants 

who want to provide input on potential 

remedies, and EPA will determine based 

on its discretion when such engagement 

may occur during the process. For 

instance, EPA, in appropriate cases, may 

request and consider complainant’s 

input on potential remedies for the 

complaint and may forward the 

suggested remedies to the recipient for 

further discussion with EPA. 

Alternatively, depending on the 

complaint, EPA may seek and consider 

complainant’s input on potential terms 

of a settlement agreement. 

C. Alternative Dispute Resolution 

As stated above, EPA considers the 

ADR process to be a viable option for 

complainants and recipients to address 

some, if not all, of the issues raised in 

Title VI complaints. As appropriate, 

EPA may offer the complainant and the 

recipient an opportunity to engage in 

the ADR process at any stage in the 

complaint process, even if an 

investigation has started. 

Dated: April 16, 2013. 

Diane E. Thompson, 

Chief of Staff, Office of the Administrator. 

[FR Doc. 2013–09922 Filed 4–25–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[ER–FRL–9008–8] 

Environmental Impacts Statements; 

Notice of Availability 

Responsible Agency: Office of Federal 

Activities, General Information (202) 

564–7146 or http://www.epa.gov/ 

compliance/nepa/. 

Weekly receipt of Environmental Impact 

Statements Filed 04/15/2013 Through 

04/19/2013 Pursuant to 40 CFR 

1506.9. 

Notice 

Section 309(a) of the Clean Air Act 

requires that EPA make public its 

comments on EISs issued by other 

Federal agencies. EPA’s comment letters 


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