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)

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EPA today released two draft guidance documents to clarify for agencies and citizens the compliance requirements of Title VI of the Civil Rights Act.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Comments on the two draft guidance documents must be received in writing by August 28, 2000.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Written comments on the two draft guidance documents should be mailed to: Title VI Guidance Comments, US Environmental Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania Avenue NW.,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

applicable intentional discrimination case law. Such topics will be addressed in future guidance documents as appropriate.

The filing or acceptance for investigation of a Title VI complaint does not suspend an issued permit. Title VI complaints concern the programs being implemented by Federal financial assistance recipients and any EPA investigation of such a complaint primarily concerns the actions of recipients rather than permittees. While a particular permitting decision may act as a trigger for a complaint, allegations may involve a wider range of issues or alleged adverse disparate impacts within the legal authority of recipients.

At the time EPA issued the

Interim Guidance

, EPA also solicited public comment for a 90-day period. EPA received over 120 written comments. In addition, EPA received stakeholder input through:

• Meetings with a number of stakeholder representatives including those from environmental justice groups, communities, industry, state and local governments, and the civil rights community to discuss their concerns and views on issues associated with the

Interim Guidance

;

• An advisory committee that provided a broad range of views on a number of issues under consideration in the

Interim Guidance

revision process;

• A facilitated meeting with stakeholder group representatives to receive more feedback on draft options under consideration for inclusion in the

Draft Revised Investigation Guidance

; and

• Internal EPA and U.S. Department of Justice review processes.

Based upon that input and the experience gained from processing and investigating complaints during the intervening months, EPA is now issuing the

Draft Revised Investigation Guidance

. The

Draft Revised Investigation Guidance

, when final, will replace the

Interim Guidance

. OCR has included substantially more detail throughout the

Draft Revised Investigation Guidance

than was provided in the

Interim Guidance

to better enable the reader to understand the approach that OCR expects to take with Title VI administrative complaints challenging permits. The

Draft Revised Investigation Guidance

is not intended to address every situation that may arise in the interaction between Title VI and environmental permitting. Instead, it explains how OCR generally intends to process and investigate allegations of discriminatory effects from environmental permitting.

In addition, OCR developed the

Draft Recipient Guidance

, which is voluntary in nature, to offer suggestions to recipients about approaches they could use to address potential Title VI issues before complaints arise. The

Draft Recipient Guidance

complements the

Draft Revised Investigation Guidance

by providing information and flexible tools that may help recipients achieve compliance with Title VI. For example, the document describes geographic area-wide approaches which use active public participation processes to identify and prevent pollution. The

Draft Recipient Guidance

also notes that the process used by recipients to assess conditions, set goals, and track reductions can provide important information for EPA to consider when conducting a Title VI investigation. This type of data may be examined by EPA and accorded due weight. In addition, EPA's intended approach regarding permits that decrease pollution, which is described in the

Draft Revised Investigation Guidance

, reduces the uncertainty concerning permitting actions taken pursuant to such community-based reduction efforts.

The

Draft Recipient Guidance

relies heavily on the work of the Title VI Implementation Advisory Committee of EPA's National Advisory Council for Environmental Policy and Technology (Title VI Advisory Committee); the October 9, 1998, draft

Proposed Elements of State Environmental Justice Programs

developed by the Environmental Council of States; and available descriptions of state environmental justice programs. The discussions of mitigation draw heavily from the Title VI Implementation Advisory Committee report. Further, both the

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

adopt many of the principles agreed to by the Title VI Advisory Committee.

In fact, the

Draft Recipient Guidance

was written at the request of the states and is intended to offer suggestions to assist state and local recipients in developing approaches and activities that address Title VI concerns. In addition to the steps described above, EPA engaged in an extensive consultation process with elected state and local officials, and other representatives of state and local governments in the process of developing both the

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

. Specifically, EPA met with the National League of Cities in September 1998, the National Association of Attorneys General in June 1999, and members of the Local Government Advisory Committee and Small Communities Advisory Subcommittee in September 1999.

The

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

are non-binding policy statements that do not directly affect the rights and responsibilities of state and local recipients. Instead, they merely explain EPA's policy regarding existing obligations that recipients accept when they receive EPA assistance. Those obligations were established by Title VI, which as been in place since 1964, and by EPA's implementing regulations, which were first promulgated in 1973 and require recipients to submit assurances of compliance with EPA's regulations.

The

Draft Revised Investigation Guidance

is an internal EPA document that concerns the manner in which OCR will conduct its Title VI investigations. It is not a guidance that directs states to take any action. The

Draft Recipient Guidance

does not require recipients to develop Title VI-related approaches and activities. Moreover, recipients that choose to develop Title VI-related approaches and activities are in no way bound by the suggestions made in the

Draft Recipient Guidance

. If a recipient develops Title VI-related approaches or activities, then EPA intends to carefully consider the results of that work and give it any appropriate weight it is due.

Responding to Concerns Raised About the Interim Guidance

A number of issues were raised during our outreach and comment process. Stakeholders raised concerns that the

Interim Guidance

was vague, lacked clarity and definitions, and failed to provide direction on critical issues. The draft guidance documents respond to these concerns.

First, the draft documents provide more detail and clarity than was provided in the

Interim Guidance

. Plain language is used and more detail provided in areas where comments suggested it was needed, such as informal resolution and the disparity analysis. In addition, the

Draft Revised Investigation Guidance

provides a clearer structure and additional information about the basis for OCR's positions. Also, the

Draft Revised Investigation Guidance

includes cross references to the

Draft Recipient Guidance

and vice versa.

Second, the

Draft Revised Investigation Guidance

more clearly explains the various steps of the adverse disparate impact analysis and the actions that can be taken at each stage (

e.g.,

how a finding of adverse impact is expected to be reached, or when an

allegation will likely be dismissed). Also, EPA has attached a flowchart as an appendix to more fully explain the Title VI complaint processing regulations at 40 CFR part 7, subpart E and how those govern OCR's receipt and handling of complaints filed with EPA.

Third, more terms are defined by providing examples within the text and including a glossary of terms as an attachment to each draft guidance document.

Fourth, the draft documents contain guidance on issues that were not included in the

Interim Guidance

or required further clarification. They discuss tools to conduct an adverse impact analysis, and describe EPA's intent to accord due weight to approaches by recipients that reduce or eliminate adverse disparate impacts. The

Draft Revised Investigation Guidance

also outlines EPA's intended approach regarding permit actions that result in an actual and significant decrease in emissions, and provides that such permit actions will likely not serve as bases for findings of violation of Title VI.

Flexibility is also a key concept embodied in the draft documents. For example, EPA recognizes that recipients have different Title VI concerns, different amounts of resources, and different organizational structures, so a “one-size-fits-all” Title VI program will not adequately address all recipients needs. As a result, the

Draft Recipient Guidance

offers a range of possible approaches to Title VI issues and encourages recipients to develop other techniques.

In addition to the general matters described above, the key elements of the

Draft Recipient Guidance

and some of the other specific additions or changes to the

Interim Guidance

contained in the

Draft Revised Investigation Guidance

are described below.

Draft Recipient Guidance

Entities applying for EPA financial assistance submit an assurance with their application stating that they will comply with the requirements of EPA's Title VI implementing regulations with respect to their programs or activities. When the recipients receive the EPA assistance, they accept the obligation to comply with EPA's Title VI implementing regulations. The

Draft Recipient Guidance

is written for the recipients of EPA financial assistance that implement environmental permitting programs. It provides a framework to help recipients address situations that might otherwise result in the filing of complaints alleging violations of Title VI and EPA's Title VI implementing regulations. In particular, it provides a framework designed to improve a recipients' existing programs or activities and reduce the likelihood or necessity for persons to file Title VI administrative complaints with EPA alleging either: (1) Discriminatory human health or environmental effects resulting from the issuance of permits; or (2) discrimination during the permitting public participation process.

To ensure stakeholder involvement in the development of the

Draft Recipient Guidance

, EPA Administrator Carol M. Browner established a Title VI Implementation Advisory Committee in March 1998. The Title VI Advisory Committee was comprised of representatives of communities, environmental justice groups, state and local governments, industry, and other interested stakeholders. The committee reviewed and evaluated existing techniques that EPA funding recipients, such as state and local environmental permitting agencies, may use to administer environmental permitting programs in compliance with Title VI. It was also asked to make recommendations to help EPA financial assistance recipients design programs or approaches that will address Title VI concerns early in the permit process. The core components of the

Draft Recipient Guidance

are based, in part, on the March 1, 1999,

Report of the Title VI Implementation Advisory Committee: Next Steps for EPA, State, and Local Environmental Justice Programs.

The

Draft Recipient Guidance

is divided into two main sections. The first section describes several general approaches recipients may want to adopt to help identify and resolve issues that could lead to the filing of Title VI complaints. The second section provides guidance on individual activities that EPA encourages recipients to consider integrating into their permitting programs.

Title VI Approaches and Activities

The

Draft Recipient Guidance

suggests a number of approaches and individual activities recipients can consider adopting and implementing to address Title VI-related concerns. The suggested Title VI approaches include: (1) A

Comprehensive Approach

that integrates all or most of the Title VI activities described in the

Draft Recipient Guidance

; (2) an

Area-Specific Approach

to identify geographic areas where adverse disparate impacts may exist; and (3) a

Case-by-Case Approach

or permit-specific approach through which a recipient develops criteria to evaluate permit actions that are likely to raise Title VI concerns. The individual Title VI activities described in the

Draft Recipient Guidance

include effective public participation, intergovernmental involvement, and alternative dispute resolution.

The approaches described are not intended to represent all those recipients may adopt, nor are they intended to be mutually exclusive. Recipients should determine the proper mix and extent of appropriate Title VI activities and approaches. Recipients are not required to implement any of the Title VI activities or approaches described in the

Draft Recipient Guidance

; they should develop and implement any approaches for addressing Title VI issues that they believe are appropriate. In any case, recipients will be held accountable for operating their programs in compliance with the non-discrimination requirements of Title VI and EPA's implementing regulations as determined by OCR.

Draft Revised Investigation Guidance

Acceptance/Rejection

EPA determines whether to accept a complaint for investigation or to reject it based on a set of jurisdictional criteria listed in its Title VI implementing regulations. The acceptance of a complaint for investigation does not mean that there has been a finding of violation of Title VI. Because the

Interim Guidance

did not list all of the steps of complaint processing or all of the time frames outlined in EPA's Title VI implementing regulations, some commenters thought that EPA was deviating from the administrative structure the regulations created or had eliminated some of the time frames. To address that misunderstanding, the

Draft Revised Investigation Guidance

incorporates all of the major steps and time frames mentioned in the Title VI regulations.

The

Draft Revised Investigation Guidance

eliminates the term “complete or properly pleaded complaint” as a criterion for acceptance because it led to unnecessary confusion. In addition, the discussion of “timeliness” includes substantially more detail to assist complainants in filing within the time allowed. This section also explains that premature complaints and complaints involving certain concurrent litigation will likely be rejected. Furthermore, the

Draft Revised Investigation Guidance

explains that OCR expects to dismiss a complaint if the permit that triggered the complaint is withdrawn or revoked, or if a final decision is made by the permittee not to operate under that

permit before OCR completes its investigation or before any activities allowed by the permit have begun.

Investigative Procedures

The

Draft Revised Investigation Guidance

adds a brief section on investigative procedures. This section covers a number of important topics such as the submission of additional information relevant to the investigation by recipients and complainants. This information will be reviewed by EPA and may be accorded due weight in its investigation, based on a series of listed factors. It also describes when allegations submitted by the complainant after the initial complaint will be treated as amendments to the existing complaint or will be considered a new and separate complaint. Furthermore, it explains that neither the filing of a Title VI complaint nor the acceptance of one for investigation by OCR stays the permit at issue.

Informal Resolution

EPA's Title VI regulations call for OCR to pursue informal resolution of administrative complaints wherever practicable. EPA believes cooperative efforts between permitting agencies and communities frequently offer the best means of addressing potential problems. However, as several commenters pointed out, the

Interim Guidance

contained little explanation of how OCR intended to approach informal resolution. Therefore, the

Draft Revised Investigation Guidance

describes the various types of informal resolution that are possible. The

Draft Recipient Guidance

includes a description of alternative dispute resolution (ADR) techniques that EPA will use, as appropriate, and encourages recipients to explore these techniques to assist in resolving concerns that might otherwise result in Title VI complaints.

Resolving Complaints

EPA believes flexibility is critical when considering measures that eliminate or reduce adverse disparate impacts to the extent required by Title VI. Often, Title VI concerns are raised communities believe they are suffering from adverse effects caused by multiple sources. For those communities, filing a Title VI complaint about a permit for a new facility or the most recent modification to an existing one, is a way to focus attention on the cumulative impacts of a number of the recipient's permitting decisions. As the

Draft Revised Investigation Guidance

states, EPA believes it will be a rare situation where the permit that triggered the complaint is the sole reason a discriminatory effect exists; therefore, denial of the permit at issue will not necessarily be an appropriate solution. Efforts that focus on all contributions to the disparate impact, not just the permit at issue, will likely yield the most effective long-term solutions.

The

Draft Revised Investigation Guidance

contains a more detailed discussion on resolving complaints than the

Interim Guidance

. In particular, it focuses primarily on measures that recipients could offer to perform during the course of informal resolution attempts with complainants or OCR. It also eliminates the reference to “supplemental mitigation projects” to avoid confusion with EPA's environmental programs. The

Draft Revised Investigation Guidance

suggests a variety of possible measures to eliminate or reduce to the extent required by Title VI any adverse disparate impacts, including additional pollution control on the source, use of pollution prevention techniques, or emission offsets from other pollution sources.

The

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

also encourage recipients to identify geographic areas where adverse disparate impacts may exist and to enter into agreements (area-specific agreements) with the affected communities and stakeholders to reduce pollution impacts in those geographic areas over time. The

Draft Revised Investigation Guidance

also describes several elements that would be considered in decisions regarding voluntary compliance efforts sought by EPA after a formal finding of noncompliance, including the cost and technical feasibility of such efforts.

Due Weight

Many commenters, particularly those representing state agencies and industry, asked EPA to provide incentives for recipients to develop pro-active Title VI-related programs. In particular, some asked EPA to recognize, and to the maximum extent possible rely on, the results of the recipient's Title VI approaches or activities in assessing complaints filed with EPA. The Investigative Procedures section of the

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

discuss the issues of deference to recipients' activities and “due weight” that EPA may provide in the context of adverse disparate impact investigations. Moreover, the

Draft Recipient Guidance

contains a discussion of the circumstances under which OCR might accord a public participation process due weight.

Under the Civil Rights Act of 1964, EPA is charged with assuring compliance with Title VI and cannot delegate its responsibility to enforce Title VI to its recipients. Therefore, OCR cannot defer in the entirety to a recipient's own assessment that it has not violated Title VI or EPA's regulations, or to a recipient's assertion that a Title VI program has been followed. Nevertheless, under certain circumstances, EPA can consider the results of recipients' analyses and give them appropriate due weight.

For example, during the course of an investigation, recipients may submit analyses to support their position that an adverse disparate impact does not exist and, under certain circumstances, OCR may give due weight to those analyses. OCR would expect that a relevant adverse impact analysis or a disparity analysis would, at a minimum, generally conform to accepted scientific approaches. It may focus on a spectrum of potential adverse impacts, such as that described in the analytical framework set forth in the

Draft Revised Investigation Guidance,

or may be more focused, such as the impact of a specific pollutant on nearby populations (

e.g.,

a study regarding the impact of lead emissions on blood lead levels in the surrounding area).

In the

Draft Recipient Guidance,

EPA encourages recipients to identify geographic areas where adverse disparate impacts may exist and to enter into agreements with affected residents and stakeholders to eliminate or reduce, to the extent required by Title VI, adverse disparate impacts in those specific areas. Collaboration with communities and other appropriate stakeholders to develop the criteria used to identify the geographic areas and in designing potential solutions to address any adverse disparate impacts will be an important element of the approach.

The

Draft Revised Investigation Guidance

describes the factors OCR will use to evaluate the appropriateness and validity of the analysis or the area-specific agreements and to assess the overall reasonableness of their conclusions or projected results. The

Draft Revised Investigation Guidance

also explains that more weight will be given to analyses and area-specific agreements that are relevant to the Title VI concerns in the complaint and have sufficient depth, breadth, completeness, and accuracy. Where a recipient or complainant submits a relevant analysis or area-specific agreement that meets the factors described in the

Draft Revised Investigation Guidance,

OCR expects to give the results due weight and rely on it in finding the recipient in

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,

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.

1

The underlined terms are defined or explained in the attached Glossary.

2

Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.).

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

3

42 U.S.C. 2000d-1.

4

Alexander

v.

Choate,

469 U.S. 287, 292-94 (1985).

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.

5

38 FR 17968 (1973), as amended by 49 FR 1656 (1984) (codified at 40 CFR part 7).

6

40 CFR 7.35(b).

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.

7

Exec. Order No. 12250, 45 FR 72995 (1980) (Section 1-402). The head of each Federal agency is required to ensure compliance with Executive Orders, to the extent permitted by existing law. Executive Orders are signed by the President of the United States.

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

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

8

The guiding principles were adapted, in part, from the consensus principles identified by the Title VI Implementation Advisory Committee under EPA's National Advisory Council for Environmental Policy and Technology.

• All persons regardless of race, color, or national origin are entitled to a safe and healthful environment.

• Strong civil rights enforcement is essential.

• Enforcement of civil rights laws and environmental laws are complementary, and can be achieved in a manner consistent with sustainable economic development.

• Potential adverse

cumulative impacts

from

stressors

should be assessed, and reduced or eliminated wherever possible.

• Research efforts by EPA and state and local environmental agencies into the nature and magnitude of

exposures,

stressor

hazards,

and

risks

are important and should be continued.

• Decreases in environmental

impacts

through applied

pollution prevention

and technological innovation should be encouraged to prevent, reduce, or eliminate adverse disparate impacts.

• Meaningful public participation early and throughout the decision-making process is critical to identify and resolve issues, and to assure proper consideration of public concerns.

• Early, preventive steps, whether under the auspices of state and local governments, in the context of voluntary initiatives by industry, or at the initiative of community advocates, are strongly encouraged to prevent potential Title VI violations and complaints.

• Use of

informal resolution

techniques in disputes involving civil rights or environmental issues yield the most desirable results for all involved.

• Intergovernmental and innovative problem-solving provide the most comprehensive response to many concerns raised in Title VI complaints.

F. Scope and Flexibility

The statements in this document are intended solely as guidance. This document is not intended, nor can it be relied upon, to create any rights or obligations enforceable by any party in litigation with the United States. This guidance may be revised to reflect changes in EPA's approach to implementing Title VI. In addition, this guidance does not alter in any way, a regulated entity's obligation to comply with applicable environmental laws.

This guidance suggests a flexible framework for a Title VI approach and individual Title VI activities. EPA recognizes that a “one-size-fits-all” Title VI approach will not adequately address all your needs. Recipients may have different Title VI concerns in communities within their jurisdiction, different amounts of resources, and different organizational structures. You may choose the activities or approaches that are most relevant to address your needs. EPA also recognizes that some of you have already begun to address Title VI concerns through your existing programs. Therefore, this guidance:

• Presents you with a menu of possible options from which you may choose to address Title VI concerns;

• Provides suggestions to those of you who choose to develop formal Title VI approaches or to amend your permit process to include or revise Title VI considerations without developing formal Title VI approaches; and

• Provides flexibility for you, if you choose to broaden the scope of your Title VI approaches or activities to improve other areas, such as enforcement or hazardous waste clean-up.

While this draft guidance is intended to focus on issues related to permitting, you may also consider developing proactive approaches to promote equality in monitoring and enforcement of environmental laws within your jurisdiction.

G. Title VI and Tribes

The applicability of Title VI and EPA's implementing regulations to Federally-recognized tribes will be addressed in a separate document because the subject involves unique issues of Federal Indian law.

II. Title VI Approaches and Activities

The following discussion provides guidance to you on the types of activities and approaches that EPA believes you may wish to consider adopting and implementing as part of a strategy to address Title VI-related claims and issues that arise in the environmental permitting context. Identifying and resolving these concerns early in the permitting process will likely reduce the number of Title VI complaints filed with EPA and may also lead to improvements in public participation processes, as well as public health and environmental benefits. You are not required to adopt such activities or approaches, but outcomes that result from the activities or approaches may be considered in the analysis of Title VI complaints that relate to your programs, activities, or methods of administration. You may choose to select one or more of the activities described in section II.B. below, implement some of the more comprehensive approaches described in section II.A., or develop and implement approaches or activities not listed in

this guidance that would likely address potential Title VI issues.

A. Title VI Approaches

As a recipient, you must decide which activities or techniques are most relevant to address your needs. You may already have begun to address Title VI concerns through your existing programs and may have different amounts of resources or different types of organizational structures from other recipients. There are several possible approaches described below; however, they are not intended to represent all possible approaches you may want to adopt. It is also important to note that the approaches described below are not mutually exclusive. You can combine activities and approaches described below to address a range of potential issues that might result in Title VI complaints. In other words, if you implement an area-specific approach, you may also want to develop a method to identify and address Title VI concerns related to a specific permit that is not covered by an area-specific agreement.

1. Comprehensive Approach

You may want to adopt a broad approach that will improve your existing permitting process, rather than addressing Title VI concerns on a case-specific or area-specific basis, through an alternative process. You may elect to adopt a comprehensive approach that integrates all of the Title VI activities described below into your existing permitting process. EPA expects that such comprehensive approaches will offer recipients the greatest likelihood of adequately addressing Title VI concerns, thereby minimizing the likelihood of complaints.

2. Area-Specific Approaches

You may choose to develop an approach to identify geographic areas where adverse disparate health impacts or other potential Title VI concerns (

e.g.,

where translation of documents may be necessary) may exist. Collaboration with communities and other appropriate stakeholders to develop the criteria used to identify the geographic areas will be an important element of the approach. Once the areas are identified, you would work with the affected communities and stakeholders to develop an agreement to reduce and eliminate adverse disparate impacts or other Title VI concerns in those specific areas.

For example, if a recipient, in collaboration with communities and other appropriate stakeholders, identifies a section of a city as an area where permitted emissions are contributing to discriminatory health effects on African Americans. The recipient then might convene a group of stakeholders with the ability to help solve the identified lead problem, including owners of facilities with lead emissions, other state and local government agencies, affected community members, and non-governmental organizations. The group may develop an agreement where each party agrees to particular actions that will eliminate or reduce the adverse lead impacts in that specific area.

Another example might be an area-specific agreement that establishes a ceiling on pollutant

releases

with a steady reduction in those pollutants over time. The period of time over which those reductions should occur will likely vary with a number of factors, including the magnitude of the adverse disparate impact, the number and types of

sources

involved, the scale of the geographic area, the

pathways

of exposure, and the number of people in the

affected population.

It is worth noting, however, that pre-existing obligations to reduce impacts imposed by environmental laws (

e.g.,

“reasonable further progress” as defined in Clean Air Act section 171(1)) might not be sufficient to constitute an agreement meriting

due weight.

9

Also, area-specific agreements need not be limited to one environmental

media

(

e.g.,

air emissions), they may also cover adverse disparate impacts in several environmental media (

e.g.,

air and water).

9

See sections V.B.2. of the

Draft Revised Investigation Guidance

(discussing due weight and any subsequent reliance OCR may give in the course of its investigation to area-specific agreements).

3. Case-by-Case Approach

For some recipients, permit-specific approaches may also be advisable. You could develop general criteria to evaluate permits that could highlight those permit actions that are likely to raise Title VI concerns. Or, you may focus your efforts on specific permitting actions where Title VI concerns are actually raised and then employ alternative dispute resolution (ADR) techniques for those situations to reduce or eliminate them.

10

You might also be made aware of Title VI concerns in particular permitting actions through any number of means, including, but not limited to, comments received on the permit application, prior work with residents of the area, and other outreach efforts performed by the recipient.

10

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

As a recipient, you determine the proper mix and extent of appropriate Title VI activities and approaches. While you are not required to implement the Title VI activities or approaches described in this guidance, you are required to operate your programs in compliance with the non-discrimination requirements of Title VI and EPA's implementing regulations.

For claims and analyses related to disparate impacts, EPA expects that the analysis would generally conform to the analytical framework set forth in the Draft Revised Investigation Guidance in order for EPA to accord it due weight.

B. Title VI Activities

As a recipient, you may should consider integrating the following activities into permitting programs to help identify and resolve issues that could lead to the filing of Title VI complaints:

1.

Staff training

—to help you meet your Title VI responsibilities;

2.

Encourage effective public participation and outreach

—to provide permitting and public participation processes that occur early, and are inclusive and meaningful;

3.

Conduct adverse impact and demographic analyses

—to analyze new and existing sources, stressors, and adverse impacts with relevant demographic information, especially potential cumulative adverse impacts, to provide confidence that Title VI concerns are identified and appropriately addressed;

4.

Encourage intergovernmental involvement

—to bring together all agencies and parties that may contribute to identifying and addressing stakeholder concerns to reach innovative and comprehensive resolutions;

5.

Participate in alternative dispute resolution

—to involve both the community and recipient in an informal process to resolve Title VI concerns;

6.

Reduce or eliminate the alleged adverse disparate impact(s)

—to reduce or eliminate identified or potential adverse human health or environmental impacts; and

7.

Evaluate Title VI activities

—to identify progress and areas in need of improvement.

1. Train Staff

The success of Title VI activities will depend on your agency staff's knowledge, credibility, and actions. Given the nature of Title VI concerns, a team approach that includes, at a minimum, permitting and community liaison functions may likely be the most effective. Other team members may include staff with specialized knowledge or experience such as risk

assessors. You may not necessarily have to hire new staff in order to address Title VI concerns. You may consider using existing staff and training them about Title VI. OCR believes that an effective staff training program may address the following issues:

1. Your Title VI responsibilities, Title VI approaches or activities you have adopted to assist in meeting those responsibilities, and environmental permitting programs;

2. Cultural and community relations sensitization to establish and maintain the trust and mutual respect between you and communities;

3. Skills and techniques to enable your staff to communicate effectively with communities and then relay community concerns to your agency;

4. Exposure, risk, and demographic analysis techniques, cumulative impact assessments, and ongoing technical advances relevant to conducting disparate impact analyses; and

5. Alternative dispute resolution techniques to enable your staff to design and carry out a collaborative and informal process that can help resolve Title VI concerns.

2. Encourage Meaningful Public Participation and Outreach

Early, inclusive, and meaningful public involvement in the permitting process will likely help to reduce the filing of Title VI complaints alleging that the public participation process for a permit was discriminatory. It is possible to have a violation of Title VI or EPA's Title VI regulations based solely on discrimination in the procedural aspects of the permitting process without a finding of discrimination in the substantive outcome of that process, such as discriminatory human health or environmental effects. Likewise, it is possible to have a violation due to discriminatory human health or environmental effects without the presence of discrimination in the public participation process.

An effective public participation process:

• Seeks out and facilitates the involvement of individuals who will be potentially affected by permitting decisions;

• Ensures that the public is involved early in the process;

• Provides participants in the process with the information they need to participate in a meaningful way;

• Ensures that public concerns are appropriately considered; and

• Communicates to participants in the process how their input was, or was not, used.

More specifically, an effective public participation process is one that:

•

Is early and inclusive:

• Engages the public during the pre-permitting process, as well as during the permitting process, whenever possible;

• Includes community participants that represent the spectrum of views;

• Uses communication methods likely to reach the affected community (

e.g.,

insert information with utility bills; place public service announcements on local radio shows; and place notices on bulletin boards in grocery stores, houses of worship, community newspapers, and community centers);

• Schedules meeting times and places that are convenient for residents who work and those who use public transportation;

• Schedules meeting places that are accessible to persons with disabilities; and

• Avoids creating schedule conflicts with other community or cultural events, whenever possible.

•

Is meaningful:

• Uses an open and transparent process;

• Provides understandable information necessary for effective community participation (Writing User-Friendly Documents and other guidance on how to write in plain language are available from the

Plain Language Action Network (PLAN)

on the Internet at

http://www.plainlanguage.govE)

;

• Provides supplemental technical information (

e.g.,

trend and comparison data, background on types of health effects, concepts of exposure assessment) and technical assistance to make data more meaningful;

• Takes reasonable steps to communicate,

11

in written documents as well as orally, in languages other than English, when appropriate for the community;

12

and

11

A recipient's failure to take reasonable steps to provide a “meaningful opportunity” for limited English speaking individuals to effectively participate in its programs and activities can constitute discrimination prohibited by Title VI. See

Lau

v,

Nichols

, 414 U.S. 563 (1974). Further, EPA's Title VI regulations state that “[a] recipient shall not use criteria or methods of administering its program which * * * have the effect of defeating or substantially impairing accomplishment of the objective of the program with respect to individuals of a particular race, color, [or] national origin.” 40 CFR 7.35(b).

12

See DOJ's regulation entitled “Coordination of Enforcement of Non-discrimination in Federally-Assisted Programs,” 28 CFR subpart F, specifically section 42.405(d)(1) for a discussion of factors recipients should consider when determining whether translation for limited English speaking populations is necessary.

• Provides clear explanations and reasons for the decisions made with respect to the issues raised by the community.

There are a number of publications describing effective public participation techniques. The publications listed below may provide useful information as you assess your Title VI activities:

•

The Model Plan for Public Participation

developed by the EPA National Environmental Justice Advisory Council, a Federal Advisory Committee to the U.S. EPA. (For more information on the EPA National Environmental Justice Advisory Council, contact the EPA Office of Environmental Justice (OEJ) at 202-564-2515, or visit the OEJ Web site at

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

);

• American Society for Testing and Materials (ASTM) Standard Guide to the Process of Sustainable

Brownfields

Redevelopment (ASTM Standard E-1984-98). (For more information on this standard, contact ASTM at 610-832-9585. The ASTM Web site location is

http://www.astm.org

);

•

Report of the Title VI Implementation Advisory Committee: Next Steps for EPA, State, and Local Environmental Justice Programs

(Available on line as an Acrobat format pdf file at (

http://es.epa.gov/oeca/oej/t6report.pdf

);

• EPA's 1998

Final Supplemental Environmental Projects Policy

contains information on the public's opportunity to participate in the consideration of Supplemental Environmental Projects (

http://www.epa.gov/oeca/sep/

);

• EPA's 1998

Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses

contains a discussion regarding public participation in Section 4 (pages 39-43) (

http://es.epa.gov/oeca/ofa/ejepa.html

); and

• EPA's 1996

Resource Conservation and Recovery Act (RCRA) Public Participation Manual

explains how public participation works in the permitting process and also contains useful information for public participation in non-RCRA environmental activities (

http://www.epa.gov/epaoswer/hazwaste/permit/pubpart

).

3. Conduct Impact and Demographic Analyses

The ability to analyze new and existing potentially adverse impacts, together with relevant demographic information concerning

receptor

populations (

i.e.,

populations that may be exposed to stressors), will often help identify potential Title VI concerns and assist in appropriately addressing them. Potential and existing impacts may

involve a broad spectrum of concerns. Although there is no single place to obtain access to data sources and tools needed to address these concerns, and some are incomplete or still being developed, major assessment tools and data are available. EPA has developed several Web sites that may help identify existing and emerging resources, including the:

• EnviroFacts data warehouse (

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

);

• Environmental Quality (

http://www.epa.gov/ceis/

);

• Community-Based Environmental Protection (

http://www.epa.gov/ecocommunity/

);

• National Center for Environmental Assessment (

http://www.epa.gov/ncea/

); and

• Superfund

risk assessment

home page (http://www.epa.gov/superfund/programs/risk/index.htm).

a. Availability of Demographic Data and Exposure Data:

The availability of information needed to assess the presence or likelihood of adverse impact(s) may vary widely from one geographic location to another. In addition to nationally available data, many states and localities collect and maintain important information concerning sources, stressors and

ambient

levels. Geographically detailed demographic information (

e.g.,

sub-county level data) is available through the United States Bureau of the Census and commercial sources, but is often limited to decennial census (

e.g.,

1990) data at the appropriate levels of geographic resolution. Information on sources and stressors is also available for some industries' releases of chemicals in air, land, and soil. However, the databases may only address certain categories of facilities and pollutants, are not of consistent completeness or quality, and may change significantly over time.

13

To assess

accuracy,

completeness, and relevance, you may choose to review and evaluate key data. You may also examine other available sources (

e.g.,

those developed by states and localities) for additional important data, and consider collecting additional locally-relevant data.

13

For example, the Toxics Release Inventory (TRI) data base has had a number of chemicals added for reporting (and a few deleted) since its inception. Recently, a number of additional facility types have begun reporting, with the first year's data for 1998 expected to be released in Spring 2000. Significantly expanded reporting for small releases of highly toxic and/or persistent chemcials has also recently become effective for reporting year 2000, with the first data release expected in Spring 2002.

Some of the information on sources and stressors, which are available in EPA's regulatory program databases, include the following:

14

14

Note that OCR does not expect to limit its disparate adverse impact analyses to information in these databases. Data availability will be taken into consideration as OCR decides, on a case-by-case basis, which databases to include in an assessment.

• The Toxic Release Inventory System (TRIS) contains information about more than 650 toxic chemicals that are being used, manufactured, treated, or released into the environment. Manufacturing and other selected facilities (which meet reporting criteria for size and quantities of chemicals) are required to report annually on waste generation, releases and transfers of chemicals to EPA and states (

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

);

• The Resource Conservation and Recovery Information System (RCRIS) and Biennial Reporting System (BRS) are national program management and inventory systems of Resource Conservation and Recovery Act (RCRA) hazardous waste handlers

(

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

);

• RCRIS handlers (including large and small quantity generators; treatment, storage and disposal facilities; and transporters) (

http://www.epa.gov/enviro/html/rcris/rcris—overview.html

); and

• BRS (data on waste streams from large quantity generators of hazardous waste) (

http://www.epa.gov/enviro/html/brs/index.html

);

• The Comprehensive Environmental Response Compensation and Liability Information System (CERCLIS) is a database that contains information on the location of over 30,000 Superfund hazardous waste sites. In addition, for sites included in the National Priority List (NPL), the database contains information on pre-remedial actions such as the discovery data and preliminary assessment, site inspection and the date of final hazardous ranking determinations (

http://www.epa.gov/enviro/html/hazard.html#Superfund

);

• The Aerometric Information Retrieval System (AIRS) is a computer-based repository for information about air pollution in the United States. AIRS contains information on air releases by various stationary sources of air pollution, such as power plants and factories, and provides information about the criteria air pollutants that they produce. In AIRS, these sources are known as facilities, and the part of AIRS containing data about sources is called the AIRS Facility Subsystem, or AFS (

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

);

• The Permit Compliance System (PCS) provides information on companies which have been issued permits to discharge waste water into water bodies (

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

);

• Risk management plans (describing potential accidental releases) are available for approximately 1500 facilities (

http://www.epa.gov:9966/srmpdcd/owa/overview$.startup

).

Efforts to collect comprehensive information about sources of contaminants in particular geographic areas include:

• The total maximum daily load (TMDL) program develops inventories of water emissions of contaminants from a variety of sources, both

point

and

non-point,

to develop and allocate watershed-based emission limits (

http://www.epa.gov/OWOW/tmdl/index.html

), and has developed software for building, maintaining and displaying source inventories called BASINS (

http://www.epa.gov/ost/BASINS/

);

• The EPA Office of Groundwater and Drinking Water source water protection program (

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

) provides a drinking water contaminant source index (

http://www.epa.gov/OGWDW/swp/intro4.html

), including a list of potential contaminant source inventory tools (

http://www.epa.gov/safewater/protect/ feddata/inventory.html

); and

• The National Air Toxics Assessment program of EPA's Office of Air Quality Planning and Standards is developing updated 1996 comprehensive air toxics emissions information from a variety of sources for release in 2000 (

http://www.epa.gov/ttnuatw1/urban/nata/natapg.html

).

The following information may be helpful to locate additional data about ambient environmental monitoring levels, and facilities which provide drinking water:

• The Safe Drinking Water Information System/Federal version (SDWIS/FED) is a database storing information about the nation's drinking water. SDWIS/FED stores identification, violation and follow up actions for approximately 175,000 public water systems (

http://www.epa.gov/enviro/html/sdwis/sdwis—ov.html

);

• The National Contaminant Occurrence Database (NCOD) provides raw data on occurrences of physical, chemical, microbial and radiological contaminants from both Public Water Systems and other sources (

http://www.epa.gov/ncod/

);

• The Storage and Retrieval of Water-Related Data System (STORET), which contains information about the chemical, physical, and biological

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.

15

Estimations of risk or other measures of impact are also likely to be dependent on many other factors such as environmental conditions, stressor characteristics and interactions, exposure pathways, and receptor population characteristics.

When designing, selecting, and using adverse impact methodologies, you should consider the following:

• Availability of tools, resources, and training to evaluate risks (both from single and multiple stressors);

• Best available data concerning sources, stressors, and ambient conditions;

• Availability of a

threshold

of potential concern for assessing the adversity of the impacts; and

• The capacity of the assessment method to identify who may be adversely impacted.

One tool which is likely to be useful is a

geographic information system

(GIS), which allows users to manage, analyze, and display integrated data, such as source locations, ambient conditions derived from monitoring or modeling, and potentially impacted populations. Many organizations have found GIS useful in environmental impact analyses. GIS is not, however, a specific demographic or impact analysis method. Instead, GIS software can be used to perform a range of analyses and produce maps and other display products that are effective means of communicating the findings and facilitating public participation. For example, GIS is useful in overlaying data regarding adverse impacts on maps that display population data.

Many organizations are using GIS to produce integrated geographically-focused inventories of sources, which can be analyzed and displayed in conjunction with population

receptor

information as one type of initial focusing tool. Although such efforts do not necessarily agree completely with the results of more sophisticated analyses, many users are exploring how they can be used to help set priorities and identify areas of possible concern, which can help target outreach and further studies, such as the creation of more comprehensive data on sources and stressors. Also, while such approaches would rarely be used to indicate areas with adverse impacts, they may be useful in identifying communities in which to conduct area-specific Title VI approaches, or selecting permit decisions for further investigation in a case-by-case approach.

d. Relevant Data:

Generally, all readily available and relevant data should be used to conduct adverse impact assessments. Data may vary in completeness, reliability, and geographic relevance to the assessment area. You should evaluate available data and place the greatest weight on the most reliable data. The following data, in approximate order of preference, could be used for assessments:

• Ambient monitoring data;

•

Modeled

ambient concentrations;

• Known emissions or other release of a pollutant or stressor;

• Production, use or storage of quantities of pollutants; and

• Presence of sources or activities associated with potential exposures.

Additional sources of information on tools and databases for conducting an adverse disparate impact analysis include:

16

16

See

Draft Revised Investigation Guidance

, section VI (regarding how EPA expects to conduct and adverse disparate impact analysis in a complaint investigation).

• 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

);

• 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

17

An SAB Report: Review of Disproportionate Impact Methodoligies; A Review by the Integrated Human Exposure Committee (IHEC) of the Science Advisory Board (SAB).

• 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.

18

See

Draft Revised Investigation Guidance

, section VI.B.5. (discussing how EPA expects to conduct disparity analyses in Title VI investigations).

19

In 2000, the most current geographically detailed U.S. Census information is from the 1990 U.S. Census. Information from the 2000 U.S. Census will not be available until 2001.

Another element of this step involves a disparity analysis that compares the affected population to a comparison population to determine to what degree a disparity exists. EPA expects that appropriate comparison populations will be decided on a case-by-case basis. You could consider the situation in communities and/or permitting decisions together with the types of impacts. Generally, relevant comparison populations would be drawn from those who live within a

reference area

such as your jurisdiction (

e.g.,

an air district, a state), a political jurisdiction (

e.g.

, city, county). For example, where a complaint alleges that Asian Americans throughout a state bear adverse disparate impacts from permitted sources of water pollution, an appropriate reference area would likely be the state. Another potentially appropriate area might be one defined by environmental criteria, such as an airshed or watershed. Comparison populations should usually be larger than the affected population, and may include the

general population

for the reference area (

e.g.

, a county or state population which includes the affected population) or the

non-affected population

for the reference area (

e.g.

, those in the reference area which are not part of the affected population).

A disparity may be assessed using comparisons both of the different prevalence of race, color, or national origin of the two populations, and of the level of risk of adverse impacts experienced by each population. You may wish to conduct comparisons of demographic characteristics, such as the composition of an affected population to that of a non-affected population or general population;

20

and/or the probability of different demographic groups (

e.g.

, African Americans, Hispanics, Whites) in a surrounding jurisdiction being in an affected population or a highly affected portion of it.

21

In conjunction with comparisons of demographic characteristics between populations, you may also wish to compare the level of risk or other measure of potential adverse impacts between populations. These comparisons might include the average

22

or range of risks for demographic subgroups of the general population or between an affected population and the general population.

20

See,

e.g., Draft Revised Demographic Information, Title VI Administrative Complaint, re: Louisiana Department of Environmental Quality/Permit for Proposed Shintech Facility,

April 1998 (

Shintech Demographic Information, April 1998

), Facility Distribution Charts D1 through D40 found at

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

, files t-d0l-10.pdf, t-d11-20.pdf, t-d21-30.pfd, t-d31-40.pdf.

21

See,

e.g., Shintech Demographic Information, April 1998

, the last column in Tables A1 through B7 found at

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

, table-al.pdf through table-b.7.pdf.

22

See,

e.g.,

Shintech Demographic Information, April 1998

, last column in Tables C1 through C5 found at

http://www.epa.gov/civilrights/shinfileap98.htm

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

Measures of the demographic disparity between an affected population and a comparison population would normally be statistically evaluated to determine whether the differences achieved

statistical significance

to at least 2 to 3 standard deviations. The purpose of this review is to minimize the chance of a false measurement of difference where none actually exists (because of an inherent variability of the data). In your analysis, you may also wish to consider the demographic disparity measures and their results in the context of several related factors, such as the size of the affected population, the proportion of a jurisdiction's total population within an affected population, and the demographic composition of the general comparison population.

The determination of what level(s) of disparity that can be considered significant should take into account the nature of the decision being made (

e.g.,

allocation of resources, triggering further action); the type of disparity comparison; the consistency of results between multiple comparisons; and underlying data quality. In many instances, you should consider both the degree of disparity of population composition with the degree of disparity of estimated level of adverse impact.

23

23

See

Draft Revised Investigation Guidance

, section VI.B.6. (discussing how EPA expects to assess the significance of disparity in Title VI investigations).

4. Encourage Intergovernmental Involvement

Bringing all agencies and parties together that may contribute to both the problems and the solutions is one effective way to reach innovative and comprehensive resolutions. You may not have the authority, resources, or expertise to address all of the elements that may contribute to the issues of concern to the community. For example, you may not have authority over zoning or traffic patterns. Including community representatives and the permit applicant in discussions regarding Title VI concerns and resolutions can be an important part of this process. The earlier you identify all appropriate parties, including other governmental agencies, and bring them into the process, the greater the likelihood that you will reach effective solutions.

5. Participate in Alternative Dispute Resolution

The ability to address identified or potential adverse impacts is critical to resolving problems that may form the basis for a Title VI complaint. The handling of Title VI concerns through the formal administrative process can consume a substantial amount of time and resources for all parties involved. Therefore, EPA strongly encourages you to use alternative dispute resolution (ADR) techniques to address concerns regarding adverse and disparate impacts from the issuance of permits. EPA expects that recipients with the ability to engage in ADR with affected communities and permit applicants are the most likely to have success in informally resolving these types of issues.

ADR is a collaborative effort to design and implement a process leading to an outcome acceptable to all parties. If you use ADR to address some Title VI concerns you may choose to review the recommendations in section II.B.2. of this guidance about effective public participation. Providing early, inclusive and meaningful public participation during the ADR process will help to ensure that the agreement reached through ADR provides solutions to reduce or eliminate: (1) Discriminatory human health, environmental, or other effects resulting from the issuance of permits; and/or (2) discrimination during the public participation process associated with the permitting process. Usually, an experienced third party (a “neutral”) facilitates the process. The neutral would work with each of the parties to develop a mutually agreeable process.

There are several possible approaches to consider when developing an ADR process:

•

Dialogue

—Facilitated conversations for improving understanding and relationships;

•

Consensus-Building

—An informal, but structured process through which parties can participate in shared learning and creative problem-solving; and

•

Mediation

—A third party neutral, with no decision-making authority, helps all parties reach a voluntary negotiated settlement of their issues.

Three common elements of all these approaches include:

• Shared responsibility for the parties to find a resolution that can satisfy their important concerns;

• Voluntary resolutions that are not developed and imposed by an external authority; and

• A neutral environment where parties express their concerns and views in a neutral environment.

Often resolution through ADR results in new understandings of and innovative ideas to address issues of concern. It is also particularly helpful in building better relationships that may be important for future interactions between the parties.

Resources available to help you with informal dispute resolution include:

• The U.S. Institute for Environmental Conflict Resolution, located at Suite 3350, 110 S. Church Avenue, Tucson, Arizona 85701 (telephone: 520-670-5529, Web site:

http://www.ecr.gov

).

•

Alternative Dispute Resolution: A Resource Guide.

This guide, written by the U.S. Office of Personnel Management (OPM), provides an overall picture of how the most common forms of ADR are being implemented in Federal agencies. It summarizes a number of current ADR programs, and it includes descriptions of shared neutrals programs where agencies have collaborated to reduce the costs of ADR. It also provides a listing of training and resources available from Federal and non-Federal sources along with selected ADR-related Web sites. The document may be downloaded from the OPM Web site.

http://www.opm.gov/er/adrguide/adrhome.html.ssi

); and

• Various States have offices of dispute resolution that can provide information and resources.

6. Reduce or Eliminate Alleged Adverse Disparate Impact

EPA believes that cooperative efforts between permitting agencies and communities, whether or not in the context of Title VI-related approaches, frequently offer the best means of addressing potential problems. Efforts that focus on all contributions to the disparate impact, not just the permit at issue, will likely yield the most effective long-term solutions. It will be a rare situation where the permit which triggered the complaint is the sole reason a discriminatory effect exists.

The Agency expects that remedial measures that reduce or eliminate alleged disparate impacts will be an important focus of the informal resolution process.

24

You can offer to provide various forms of remediation, including remedial measures that are narrowly tailored toward sources using your existing permitting authorities. Alternatively or in addition, you can propose broader remedial measures that are outside those considerations ordinarily considered in the permitting process. Before selecting a remedial measure, analyze and compare all potential remedial measures. Remediation may take many forms, including:

24

For a more detailed discussion of measures to reduce or eliminate adverse disparate impact, see section IV.B. of the

Draft Revised Investigation Guidance.

• Changes in policies or procedures;

• Pollution reduction;

•

Pollution prevention

;

• Environmental remediation (

e.g.

, lead abatement);

• Emission

offsets

;

• Emissions caps for geographic areas of concern;

• Emergency planning and response measures; and

• Measures to promote equality in monitoring and enforcement.

The EPA

Supplemental Environmental Projects (SEPs) Policy

is a source of information for recipients on remedial options and procedures. SEPs are environmentally beneficial projects that may be part of a settlement of environmental enforcement cases. The EPA SEP Policy also contains a section on community input which may be

especially useful guidance for involving the public in the development of remedial measures to address potentially disparate impacts. A copy of EPA's SEPs policy is available through the National Service Center for Environmental Publications (see reference section for address) and is also available at

http://www.epa.gov/oeca/sep/.

7. Evaluate Title VI Activities

You may decide to evaluate your Title VI approach or Title VI activities to identify areas in need of improvement. For example, if you choose to develop a public participation program, you may wish to collect and analyze feedback from communities and businesses. In which case, it would be important to give communities and businesses the necessary information to provide appropriate feedback. The ability to effectively evaluate any approach or activity is based primarily on information and resource availability. If you choose to evaluate your Title VI approach or activities, you should also consider data quality when choosing an evaluation method. One resource on program evaluation is

Practical Evaluation for Public Managers, Getting The Information You Need

by the Department of Health and Human Services, Office of the Inspector General (see reference section for address).

C. Due Weight

As recipients, many of you have asked EPA to provide “incentives” for you to develop proactive Title VI-related approaches. In particular, some of you have asked EPA to recognize, and to the maximum extent possible, rely on the results of any such approaches in assessing complaints filed with EPA. While EPA encourages efforts to develop proactive Title VI approaches, under the Civil Rights Act of 1964, EPA is charged with assuring compliance with Title VI. Thus, EPA cannot completely defer to a recipient's own assessment that it has not violated Title VI or EPA's regulations and cannot rely entirely on an assertion that a Title VI approaches has been followed.

25

In addition, EPA cannot delegate its responsibility to enforce Title VI to its recipients. Thus, with regard to the processing of Title VI complaints, EPA retains the:

25

See

28 CFR 50.3(b) (“Primary responsibility for prompt and vigorous enforcement of Title VI rests with the head of each department and agency administering programs of Federal financial assistance.”); Memorandum from Bill Lann Lee, Acting Assistant Attorney General, U.S. Department of Justice, to Executive Agency Civil Rights Directors (Jan. 28, 1999) (titled

Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs

) (“It is important to remember that that Federal agencies are responsible for enforcing the nondiscrimination requirements that apply to recipients of assistance under their programs.”)

• Ability to supplement the recipient's analysis or to investigate the issues

de novo;

• Approval authority over any proposed resolution; and

• Ability to initiate its own enforcement actions and compliance reviews.

Nevertheless, EPA believes that it can, under certain circumstances, recognize the results of analyses you submit and give them appropriate due weight.

26

For example, if you adopt any of the individual Title VI activities discussed above, and during the course of an investigation you seek to submit the results of those activities as evidence that you have not violated EPA's Title VI regulations, EPA will review the activity and the results to determine how much weight to give the submission in its investigation.

26

For more information on how OCR plans to determine the appropriate amount of due weight to give to evidence or information submitted by recipients, see section V.B. of the

Draft Revised Investigation Guidance.

You may seek to conduct your own evaluation of whether a disparate impact exists and submit it to EPA. These evaluations should at a minimum generally conform to accepted scientific approaches. They may focus on a spectrum of potential adverse impacts, such as described in the analytical framework set forth in section II.B.3. above, or may be more focused, such as the impact of a specific pollutant on nearby populations (

e.g.,

a study regarding the impact of lead emissions on blood lead levels in the surrounding area). The weight given any evidence related to the level or existence of adverse impacts and the extent to which OCR may rely on it in its decision will likely vary depending upon:

• Relevance of the evidence to the alleged impacts;

• The validity of the recipient's methodologies;

• The completeness of the documentation that is submitted by the recipient;

• The degree of consistency between the methodology used and the findings and conclusions; and

• The uncertainties of the input data and results.

Consequently, submitted materials would be subject to scientific review by EPA experts.

OCR expects to give more weight to submitted analyses that are relevant to the Title VI concerns in the complaint and have sufficient scope, completeness, and accuracy. If the analyses submitted meet the factors above, OCR will not seek to duplicate or conduct such analyses, but instead will evaluate the appropriateness and validity of the relevant methodology and assess the overall reasonableness of the outcome or conclusions at issue.

If OCR's review reveals that the evidence contains significant deficiencies with respect to the factors above, then the analysis will likely not be relied upon in OCR's decision. If these factors are met, then OCR will likely rely on the evidence in its investigation. In the instance where a submitted analysis that shows no adverse disparate impact exists, and the analysis generally follows the steps in section II.B.3.b. of this document and meets the factors described above, then OCR may rely on it in a finding that the recipient is in compliance with EPA's Title VI regulation.

Some recipients may develop procedures for their permitting program that meet certain criteria designed to ensure a nondiscriminatory public participation process. OCR expects to give due weight to the public participation program if:

• The criteria that formed the basis for the program were sufficient to ensure a nondiscriminatory process;

• Your overall permitting process met those criteria; and you followed your program for the relevant case.

An example of a public participation process that meets these steps would be one that followed the guidelines for the EPA Brownfields Assessment Demonstration Pilot projects. A copy of

The Brownfields Economic Redevelopment Initiative Proposal Guidelines for Brownfields Assessment Demonstration Pilots

is available through the National Service Center for Environmental Publications (see reference section for address) and is also available at

http://www.epa.gov/swerosps/bf/html-doc/apappg00.htm#guide.

EPA also intends to consider other available information, including information submitted by complainants when investigating Title VI complaints. If EPA's review reveals that the activity or analyses does not meet the criteria above, then EPA will likely not rely on the evidence in its decision. If EPA finds that the activity, whether it is a public participation process, disparate impact analysis, the results of an area-specific agreement, or other activity, is an acceptable approach to ensure nondiscrimination, EPA would generally rely upon this finding in subsequent decisions. Consequently,

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

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.

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.

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

b. Use of National Ambient Air Quality Standards

c. Assessing Decreases in Adverse Impacts in a Permit Action

5. Characterize Populations and Conduct Comparisons

a. Identify and Characterize Affected Population

b. Comparison to Assess Disparity

6. Adverse Disparate Impact Decision

VII. Determining Whether a Finding of Noncompliance is Warranted

A. Justification

1. Types of Justification

2. Less Discriminatory Alternatives

3. Voluntary Compliance

B. Hearing/Appeal Process

Appendix A: Glossary of Terms

Appendix B: Title VI Complaint Process Flow Chart

I. Introduction

A. Purpose of the Revised Investigation Guidance

The

Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance)

is intended to provide a framework for the United States Environmental Protection Agency's (EPA or Agency) Office of Civil Rights (OCR) to process complaints filed under Title VI of the Civil Rights Act of 1964, as amended (Title VI),

27

and EPA's Title VI implementing regulations

28

alleging discriminatory effects resulting from the issuance of pollution control

permits

29

by

recipients

of EPA

financial assistance.

27

42 U.S.C. 2000d to 2000d-7.

28

40 CFR part 7.

29

The underlined terms are defined or explained in the attached Glossary.

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

The goal of the Civil Rights Act of 1964 is to eliminate discrimination in several areas of American society.

30

The Act prohibits discrimination in public accommodations (Title II); segregation in public facilities (Title III); segregation in public schools (Title IV); and discrimination in employment (Title VII).

31

Title VI of the Act, which prohibits discrimination on the basis of race, color, and national origin in all Federally-assisted programs and activities, applies to the recipients of an estimated $900 billion in Federal assistance distributed annually by approximately 27 Federal agencies.

32

When submitting the Civil Rights Act to Congress, President Kennedy stated that “[s]imple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion, which encourages, entrenches, subsidizes, or results in racial discrimination.”

33

30

See,

e.g.,

110 Cong. Rec. 7062 (1964) (“[T]he purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination.”) (statement of Sen. Pastore).

31

Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.).

32

U.S. Commission on Civil Rights,

Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs,

p.12 (June 1996) [hereinafter

Federal Title VI Enforcement

].

33

H.R. Doc. No. 124, 88th Cong., 1st Sess. (1963), reprinted in 1963 U.S.C.C.A.N. 1534.

Title VI itself prohibits intentional discrimination.

34

In addition, the Supreme Court has stated that Title VI authorizes agencies to adopt implementing regulations that also prohibit discriminatory effects.

35

This is often referred to as reaching actions that have an unjustified adverse disparate impact. EPA in 1973 promulgated regulations that implement Title VI and revised them in 1984.

36

Under EPA's Title VI implementing regulations, agencies receiving EPA financial assistance are prohibited, among other things, from using “criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin.”

37

As applied to the permitting process, recipients of EPA financial assistance may not issue permits that are intentionally discriminatory or have a discriminatory effect based on race, color, or national origin.

34

Guardians Ass'n

v.

Civil Serv. Comm'n,

463 U.S. 582, 589 (1983).

35

See

Alexander

v.

Choate,

469 U.S. 287, 292-94 (1985); Guardians Ass'n, 463 U.S. at 589-93.

36

38 FR 17968 (1973), as amended by 49 FR 1656 (1984) (codified at 40 CFR part 7).

37

40 CFR 7.35(b).

C. Scope of Guidance

While this guidance is directed at the processing of discriminatory effects allegations, Title VI complaints may also allege discriminatory intent in the context of environmental permitting. Such complaints generally will be investigated by OCR under Title VI, EPA's Title VI regulations, and applicable intentional discrimination case law. Moreover, even for allegations of discriminatory effects, this document is not intended to comprehensively address every scenario that may arise in the interaction between Title VI, EPA's Title VI regulations, and environmental permitting.

38

Given the infinite number of possible permutations of facts, allegations, and circumstances, such an approach is infeasible. Instead, this guidance provides a detailed framework explaining how OCR intends to process and investigate allegations about discriminatory effects resulting from environmental permitting decisions. In particular, OCR generally expects to use this guidance for complaints involving allegations related to environmental permits, such as Clean Air Act

39

permits, Clean Water Act

40

discharge permits, Safe Drinking Water Act

41

permits, underground injection

42

permits, and Resource Conservation and Recovery Act

43

permits for treatment, storage, and disposal.

44

38

Title VI “delegated to the agencies in the first instance the complex determination of what sorts of

disparate impacts

upon minorities constituted sufficiently significant social problems, and were readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.”

Alexander

v.

Choate

, 469 U.S. 287, 292-94 (1985). In addition, DOJ, which is charged with coordinating the Federal government's Title VI work, Executive Order 12250, 45 FR 72995 (1980), issued regulations that provide, in part, that “Federal agencies shall publish Title VI guidelines for each type of program to which they extend financial assistance.” 28 CFR 42.404(a). Furthermore, Executive Order 12250 requires agencies to issue appropriate implementing directives in the form of policy guidance or regulations that are consistent with requirements prescribed by the Attorney General. Pursuant to that authority, EPA is issuing the

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance.

39

Clean Air Act, 42 U.S.C. 7401 to 7671q.

40

Federal Water Pollution Control Act, 33 U.S.C. 1251 to 1387.

41

Safe Drinking Water Act, 42 U.S.C. 300f to 300j-26.

42

Underground injections are regulated pursuant to the Safe Drinking Water Act.

43

Resource Conservation and Recovery Act, 42 U.S.C. 6901 to 6992k.

44

Use permits, such as those issued for pesticides, have some similarities to the permits listed above. OCR may use this guidance for complaints involving use permits if appropriate for the allegations and facts. For example, if a complaint alleged discriminatory effects from the application of a state-registered pesticide in a particular location, this guidance could be relevant. For investigations about such allegations, the term “permitted activity” would substitute for “source” in this guidance.

The types of allegations that complainants have identified in previous complaints span a wide range, and may involve public participation, as well as adverse disparate impacts from the issuance of permits. Some are focused narrowly on the impacts from a single permitted activity or facility, while others have identified concerns with groups of similar facilities (

e.g.

, all waste disposal sites in an area), or the combined

impacts

of facilities and other sources in a particular area (

e.g.

, major permitted sources together with other stationary,

mobile

, or

non-point sources

). In some cases, allegations suggest that the recipient's permitting action may be part of a discriminatory

pattern

of decision-making for certain types of facilities (

e.g.

, hazardous waste landfills throughout a state). The nature of each of the allegations accepted for investigation in a particular complaint

will generally form the basis for the scope of the investigation, which is further described in Section VI of this document.

Application of Title VI to issues other than environmental permitting, such as allegations concerning enforcement-related matters and public participation, will be addressed in future internal EPA guidance documents, as appropriate. Once that further guidance is available, complaints involving such allegations will be addressed under both EPA's Title VI regulations, which provide a general process for investigation of complaints, and that guidance. Until that time, such allegations will be addressed under the regulations.

This guidance does not discuss in detail specific remedies for violations of Title VI or EPA's implementing regulations because remedies tend to be case-specific. Nonetheless, it should be noted at the outset that Title VI provides a variety of options in the event that EPA finds a recipient in violation of the statute or regulations. The primary administrative remedy described in the regulations involves the termination of EPA assistance to the recipient.

45

Alternatively, EPA may use other means authorized by law to obtain compliance (

e.g.

, referral to the Department of Justice (DOJ) for judicial enforcement).

46

However, as noted elsewhere in this document, EPA encourages the use of

informal resolution

to address Title VI complaints whenever possible.

45

40 CFR 7.130(a).

46

Id.

It will likely be a rare situation where the permit that triggered the complaint is the sole reason discriminatory effects exist. EPA believes that cooperative efforts between permitting agencies and communities, whether or not in the context of Title VI-related programs, frequently offer the best means of dealing with such impacts, either before or after an investigation and finding. Efforts that focus on all contributions to the adverse disparate impact, not just from the permit at issue, will likely yield the most effective long-term solutions.

The statements in this document are intended solely as guidance. This document is not intended, nor can it be relied upon, to create any rights or obligations enforceable by any party in litigation. EPA may decide to follow the guidance provided in this document, or to act at variance with the guidance, based on its analysis of the specific facts presented. This guidance may be revised to reflect changes in EPA's approach to implementing Title VI. In addition, this guidance does not alter in any way, a regulated entity's obligation to comply with applicable environmental laws. This guidance uses mandatory language when repeating explicit requirements found in EPA's Title VI regulations. The remainder of the guidance is discretionary and gives EPA flexibility to address the particularities of each complaint.

This guidance does not address complaints against EPA recipients that are Federally-recognized Indian tribes. That subject will be addressed by EPA in separate guidance because the applicability of Title VI to Federally-recognized Indian tribes involves unique issues of Federal Indian law.

D. Coordination With Recipient Guidance

Concurrently with this Draft Revised Investigation Guidance, EPA has issued

Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs

(

Draft Recipient Guidance

), which provides a series of recommendations designed to improve existing programs of EPA recipients and reduce the likelihood or necessity for persons to file Title VI complaints. Implementation of the approaches suggested by the

Draft Recipient Guidance

should reduce the likelihood or necessity for communities to file Title VI administrative complaints with EPA alleging either: (1) Discriminatory human health or environmental effects resulting from the issuance of permits; or (2) discrimination during the public participation process associated with the permit. The

Draft Revised Investigation Guidance

and the

Draft Recipient Guidance

documents were developed concurrently to ensure consistency. Furthermore, both Title VI guidance documents reference appropriate sections of the other and share an attached glossary.

The attached

Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance

document provides an additional discussion that addresses questions and concerns expressed in comments the Agency has received on the issue of Title VI guidance.

E. Principles for Implementing Title VI at EPA

In implementing Title VI and developing this draft guidance, EPA adheres to the following principles

47

:

47

The guiding principles were adapted, in part, from the consensus principles identified by the Title VI Implementation Advisory Committee under EPA's National Advisory Council for Environmental Policy and Technology.

• All persons regardless of race, color, or national origin are entitled to a safe and healthful environment.

• Strong civil rights enforcement is essential.

• Enforcement of civil rights laws and environmental laws are complementary, and can be achieved in a manner consistent with sustainable economic development.

• Potential adverse disparate

cumulative impacts

from

stressors

should be assessed, and reduced or eliminated wherever possible.

• Research efforts by EPA and state and local environmental agencies into the nature and magnitude of

exposures

, stressor

hazards

, and

risks

are important and should be continued.

• Decreases in environmental impacts through applied

pollution prevention

and technological innovation should be encouraged to prevent, reduce, or eliminate adverse disparate impacts.

• Meaningful public participation early and throughout the decision-making process is critical to identify and resolve issues, and to assure proper consideration of public concerns.

• Early, preventive steps, whether under the auspices of state and local governments, in the context of voluntary initiatives by industry, or at the initiative of community advocates, are strongly encouraged to prevent potential Title VI violations and complaints.

• Use of informal resolution techniques in disputes involving civil rights or environmental issues yield the most desirable results for all involved.

• Intergovernmental and innovative problem-solving provide the most comprehensive response to many concerns raised in Title VI complaints.

F. EPA's Nondiscrimination Responsibilities and Commitment

Title VI is inapplicable to EPA actions, including EPA's issuance of permits, because it only applies to the programs and activities of recipients of Federal financial assistance, not to Federal agencies. The statute clearly excludes Federal agencies from its definition of “program or activity.”

48

Nonetheless, EPA is committed to a policy of nondiscrimination in its own permitting programs. The equal protection guarantee in the Due Process Clause of the U. S. Constitution prohibits the Federal government from engaging in intentional

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.

48

42 U.S.C. 2000d-4a.

49

See U.S. Const. amend. V; see also

Washington

v.

Davis,

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

Bolling

v.

Sharpe,

347 U.S. 497, 499-500 (1954).

50

Section 2-2 provides: Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin. Executive Order 12898, 59 FR 7629 (1994).

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

51

40 CFR part 7.

52

See 40 CFR 7.30, 7.35 (stating prohibitions against discrimination).

53

See section VI (describing analysis for determining whether adverse disparate impact exists).

54

See section VII (discussing justification).

55

See section VI.B.2. (discussing scope of investigation).

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

56

See section IV (discussing informal resolution).

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

57

See 28 CFR 42.101 to 42.112 (DOJ's regulations implementing Title VI); 28 CFR 42.401 to 42.415 (DOJ's regulations for coordinating enforcement of Title VI); Executive Order 12250, 45 FR 72995 (1980) (Executive Order giving authority for coordinating Federal government's implementation of Title VI to DOJ).

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

58

40 CFR 7.120(c).

59

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

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.

60

See section III.A. (describing jurisdictional criteria).

61

“Acceptance” of a complaint merely indicates that the complainant has satisfied the basic jurisdictional criteria described in this section. The fact that OCR accepts a complaint for investigation does not in any way mean that a finding of

noncompliance

with Title VI will result. OCR must conduct an investigation to determine whether the recipient has complied with its Title VI responsibilities.

62

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

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.

63

40 CFR 7.120(d)(1).

64

40 CFR 7.125.

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

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).

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

70

40 CFR 7.115(c).

71

Id.

72

40 CFR 7.115(d).

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

73

Id.

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

74

See section VII.A.3. (discussing voluntary compliance), 40 CFR 7.115(e).

75

40 CFR 7.115(e), 7.130(b). OCR may postpone or pause proceedings to deny, annul, suspend, or terminate EPA assistance, if the recipient has demonstrated a good faith effort (

e.g.,

signed a voluntary compliance agreement) to come into compliance.

7. Hearing/Appeal Process

Within 30 calendar days of receipt of the formal finding of noncompliance, the recipient must file a written answer and may request a hearing before an EPA administrative law judge (ALJ). Following the hearing and receipt of the ALJ's determination, the recipient may, within 30 calendar days, file its exceptions to that determination with the Administrator. The Administrator may elect to review the ALJ's determination. If the Administrator decides not to review the determination, then the ALJ's determination is final. If the Administrator reviews the determination, all parties will be given reasonable opportunity to file written statements. Subsequently, if the Administrator decides to deny an application for financial assistance, or annul, suspend, or terminate EPA assistance, that decision becomes effective 30 calendar days after the Administrator submits a written report to Congress.

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40 CFR 7.130(b).

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.

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See

Powell

v.

Ridge,

189 F.3d 387, 397-400 (3d Cir.), cert. denied, 120 S. Ct. 579 (1999) (finding that citizens have a private right of action under agency's regulations promulgated under section 602 of Civil Rights Act of 1964).

B. Roles and Opportunities To Participate

1. Recipients

OCR may work closely with recipients to ensure that the Agency has a complete and accurate record of all relevant information pertaining to the complaint, and a full understanding of the recipient's position relating to the allegations. In order for OCR to perform the appropriate analyses, one of the most important things recipients may do as early as possible is to provide OCR with all of the information relevant to the complaint, including, but not limited to, background information, the permit application(s), monitoring data, computer

modeling,

other aspects of the recipient's analysis of the application(s), and any information relating to steps the recipient took to address potential Title VI concerns, as described in Section V. B. of this document. OCR may request interviews of a recipient's staff, and copies of or access to relevant documents in the recipient's possession. Moreover, under EPA's Title VI regulations, OCR has the authority to obtain information from recipients and interview recipient staff.

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Full and expeditious disclosure of such information would facilitate resolution of Title VI complaints.

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78

40 CFR 7.85(b), (f).

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In addition to considering information supplied by recipients, OCR will also evaluate information provided by complainants and may develop its own information and analyses.

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.

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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.

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Finally, if OCR begins the procedure to deny, annul, suspend, or terminate EPA assistance, recipients may request a hearing before an ALJ

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and, if the ALJ's decision upholds a finding of noncompliance, the recipient may then file exceptions with the Administrator.

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40 CFR 7.120(d)(1).

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40 CFR 7.115(d).

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40 CFR 7.130(b)(2).

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40 CFR 7.130(b)(3).

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

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