[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Notices]
[Pages 39650-39701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15673]



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Part II





Environmental Protection Agency





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Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Draft Recipient Guidance) and Draft 
Revised Guidance for Investigating Title VI Administrative Complaints 
Challenging Permits (Draft Revised Investigation Guidance); Notice

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

[[Page 39650]]


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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.

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SUMMARY: EPA today released two draft guidance documents to clarify for 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: 
[email protected]. 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

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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

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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

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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

[[Page 39654]]

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: [email protected]. 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,

[[Page 39655]]

or send an e-mail message to [email protected] 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

[[Page 39656]]

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

[[Page 39657]]

this guidance that would likely address potential Title VI issues.

A. Title VI  Approaches

    As a recipient, you must decide which activities or techniques are 
most relevant to address your needs. You may already have begun to 
address Title VI concerns through your existing programs and may have 
different amounts of resources or different types of organizational 
structures from other recipients. There are several possible approaches 
described below; however, they are not intended to represent all 
possible approaches you may want to adopt. It is also important to note 
that the approaches described below are not mutually exclusive. You can 
combine activities and approaches described below to address a range of 
potential issues that might result in Title VI complaints. In other 
words, if you implement an area-specific approach, you may also want to 
develop a method to identify and address Title VI concerns related to a 
specific permit that is not covered by an area-specific agreement.
1. Comprehensive Approach
    You may want to adopt a broad approach that will improve your 
existing permitting process, rather than addressing Title VI concerns 
on a case-specific or area-specific basis, through an alternative 
process. You may elect to adopt a comprehensive approach that 
integrates all of the Title VI activities described below into your 
existing permitting process. EPA expects that such comprehensive 
approaches will offer recipients the greatest likelihood of adequately 
addressing Title VI concerns, thereby minimizing the likelihood of 
complaints.
2. Area-Specific Approaches
    You may choose to develop an approach to identify geographic areas 
where adverse disparate health impacts or other potential Title VI 
concerns (e.g., where translation of documents may be necessary) may 
exist. Collaboration with communities and other appropriate 
stakeholders to develop the criteria used to identify the geographic 
areas will be an important element of the approach. Once the areas are 
identified, you would work with the affected communities and 
stakeholders to develop an agreement to reduce and eliminate adverse 
disparate impacts or other Title VI concerns in those specific areas.
    For example, if a recipient, in collaboration with communities and 
other appropriate stakeholders, identifies a section of a city as an 
area where permitted emissions are contributing to discriminatory 
health effects on African Americans. The recipient then might convene a 
group of stakeholders with the ability to help solve the identified 
lead problem, including owners of facilities with lead emissions, other 
state and local government agencies, affected community members, and 
non-governmental organizations. The group may develop an agreement 
where each party agrees to particular actions that will eliminate or 
reduce the adverse lead impacts in that specific area.
    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

[[Page 39658]]

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

[[Page 39659]]

involve a broad spectrum of concerns. Although there is no single place 
to obtain access to data sources and tools needed to address these 
concerns, and some are incomplete or still being developed, major 
assessment tools and data are available. EPA has developed several Web 
sites that may help identify existing and emerging resources, including 
the:
     EnviroFacts data warehouse (http://www.epa.gov/enviro/);
     Environmental Quality (http://www.epa.gov/ceis/);
     Community-Based Environmental Protection (http://www.epa.gov/ecocommunity/);
     National Center for Environmental Assessment (http://www.epa.gov/ncea/); and
     Superfund risk assessment home page (http://www.epa.gov/superfund/programs/risk/index.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

[[Page 39660]]

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);

[[Page 39661]]

     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.

[[Page 39662]]

    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

[[Page 39663]]

especially useful guidance for involving the public in the development 
of remedial measures to address potentially disparate impacts. A copy 
of EPA's SEPs policy is available through the National Service Center 
for Environmental Publications (see reference section for address) and 
is also available at http://www.epa.gov/oeca/sep/.
7. Evaluate Title VI Activities
    You may decide to evaluate your Title VI approach or Title VI 
activities to identify areas in need of improvement. For example, if 
you choose to develop a public participation program, you may wish to 
collect and analyze feedback from communities and businesses. In which 
case, it would be important to give communities and businesses the 
necessary information to provide appropriate feedback. The ability to 
effectively evaluate any approach or activity is based primarily on 
information and resource availability. If you choose to evaluate your 
Title VI approach or activities, you should also consider data quality 
when choosing an evaluation method. One resource on program evaluation 
is Practical Evaluation for Public Managers, Getting The Information 
You Need by the Department of Health and Human Services, Office of the 
Inspector General (see reference section for address).

C. Due Weight

    As recipients, many of you have asked EPA to provide ``incentives'' 
for you to develop proactive Title VI-related approaches. In 
particular, some of you have asked EPA to recognize, and to the maximum 
extent possible, rely on the results of any such approaches in 
assessing complaints filed with EPA. While EPA encourages efforts to 
develop proactive Title VI approaches, under the Civil Rights Act of 
1964, EPA is charged with assuring compliance with Title VI. Thus, EPA 
cannot completely defer to a recipient's own assessment that it has not 
violated Title VI or EPA's regulations and cannot rely entirely on an 
assertion that a Title VI approaches has been followed.\25\ In 
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,

[[Page 39664]]

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

[[Page 39665]]

PLAN, 1998, Writing User-Friendly Documents, Plain Language Action 
Network (available at http://www.plainlanguage.gov).
SAB, 1999, An SAB Report: Review of Disproportionate Impact 
Methodologies, A Review by the Integrated Human Exposure Committee 
(IHEC) of the Science Advisory Board (SAB)'', EPA-SAB-99-007, December 
1998, United States Environmental Protection Agency, Science Advisory 
Board, Washington, DC (This SAB report is available in Acrobat pdf 
format via the OCR Web site at http://www.epa.gov/civilrights/investig.htm).

Glossary of Terms

    The definitions provided in this glossary only apply to the Draft 
Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs and the Draft Revised Guidance for 
Investigating Title VI Administrative Complaints Challenging Permits, 
unless a direct citation to the Code of Federal Regulations (CFR) is 
provided. Please note that italicized words are ones for which 
definitions are available in this glossary.

------------------------------------------------------------------------
             Term                              Definition
------------------------------------------------------------------------
Accuracy.....................  The measure of the correctness of data,
                                as given by the difference between the
                                measured value and the true or standard
                                value.
Adverse Impact...............  A negative impact that is determined by
                                EPA to be significant, based on
                                comparisons with benchmarks of
                                significance. These benchmarks may be
                                based on law, policy, or science.
Affected Population..........  A population that is determined to bear
                                an adverse impact from the source(s) at
                                issue.
Ambient Standards............  A level of pollutants prescribed by
                                regulations that are not to be exceeded
                                during a given time in a defined area.
                                (e.g., National Ambient Air Quality
                                Standards).
Ambient......................  Any unconfined portion of a water body,
                                land area, or the atmosphere, such as
                                the open air or the environment
                                surrounding a source.
Attainment Area..............  An area considered to have air quality as
                                good as or better than the national
                                ambient air quality standards as defined
                                in the Clean Air Act. An area may be an
                                attainment area for one pollutant and a
                                non-attainment area for others. (See
                                also non-attainment area).
Benchmark....................  A value used as a standard for
                                comparison. Several types used in Title
                                VI investigations include benchmarks of
                                exposure level, risk, and significance.
                                (See also RfC, RfD, threshold)
Brownfields..................  Abandoned, idled, or under-used
                                industrial and commercial facilities/
                                sites where expansion or redevelopment
                                is complicated by real or perceived
                                environmental contamination. They can be
                                in urban, suburban, or rural areas.
Carcinogen...................  A chemical or other stressor capable of
                                inducing a cancer response.
Chronic Toxicity.............  The capacity of a substance to cause long-
                                term harmful health effects.
Comparison Population........  A population selected for comparison with
                                an affected population in determining
                                whether the affected population is
                                significantly different with respect to
                                demographic characteristics or degree of
                                adverse impact.
Criteria Pollutants..........  The 1970 Clean Air Act (CAA) required EPA
                                to set National Ambient Air Quality
                                Standards for certain pollutants known
                                to be hazardous to human health. EPA has
                                identified and set standards to protect
                                human health and welfare for six
                                pollutants: Ozone, carbon monoxide,
                                particulate matter, sulfur dioxide,
                                lead, and nitrogen oxide. The term,
                                ``criteria pollutants'' derives from the
                                requirement that EPA must describe the
                                characteristics and potential health and
                                welfare effects of these pollutants in
                                ``criteria.'' See CAA section 108.
Cumulative Exposure..........  Total exposure to multiple environmental
                                stressors (e.g., chemicals), including
                                exposures originating from multiple
                                sources, and traveling via multiple
                                pathways over a period of time.
Cumulative Impact............  The harmful health or other effects
                                resulting from cumulative exposure.
Disparity (Disparate Impact).  A measurement of a degree of difference
                                between population groups for the
                                purpose of making a finding under Title
                                VI. Disparities may be measured in terms
                                of the respective composition
                                (demographics) of the groups, and in
                                terms of the respective potential level
                                of exposure, risk or other measure of
                                adverse impact.
Due Weight...................  The importance or reliance EPA gives to
                                evidence or agreements to reduce impacts
                                provided by recipients or complainants,
                                depending on a review of relevance,
                                scientific validity, completeness,
                                consistency, and uncertainties. Where
                                evidence or agreements prove to be
                                technically satisfactory, OCR may rely
                                upon that information rather than
                                attempting to duplicate the analysis.
Environmental Council of       The Environmental Council of States
 States (ECOS).                 (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.

[[Page 39666]]

 
GIS (Geographic Information    An organized computer system designed to
 System).                       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 established by EPA pursuant to
 Standards (NAAQS).             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.

[[Page 39667]]

 
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      An estimate (with uncertainty spanning
 concentration).                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

[[Page 39668]]

    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

[[Page 39669]]

will generally form the basis for the scope of the investigation, which 
is further described in Section VI of this document.
    Application of Title VI to issues other than environmental 
permitting, such as allegations concerning enforcement-related matters 
and public participation, will be addressed in future internal EPA 
guidance documents, as appropriate. Once that further guidance is 
available, complaints involving such allegations will be addressed 
under both EPA's Title VI regulations, which provide a general process 
for investigation of complaints, and that guidance. Until that time, 
such allegations will be addressed under the regulations.
    This guidance does not discuss in detail specific remedies for 
violations of Title VI or EPA's implementing regulations because 
remedies tend to be case-specific. Nonetheless, it should be noted at 
the outset that Title VI provides a variety of options in the event 
that EPA finds a recipient in violation of the statute or regulations. 
The primary administrative remedy described in the regulations involves 
the termination of EPA assistance to the recipient.\45\ Alternatively, 
EPA may use other means authorized by law to obtain compliance (e.g., 
referral to the Department of Justice (DOJ) for judicial 
enforcement).\46\ However, as noted elsewhere in this document, EPA 
encourages the use of informal resolution to address Title VI 
complaints whenever possible.
---------------------------------------------------------------------------

    \45\ 40 CFR 7.130(a).
    \46\ Id.
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    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

[[Page 39670]]

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).
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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\
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    \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).
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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.
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    \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).

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[[Page 39671]]

4. Preliminary Finding of Noncompliance
    If OCR makes a preliminary finding of noncompliance with the 
regulations, it will notify both the recipient and the complainant, and 
send a copy to the EPA grant award official (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.\76\
---------------------------------------------------------------------------

    \76\ 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.\77\
---------------------------------------------------------------------------

    \77\ See Powell v. Ridge, 189 F.3d 387, 397-400 (3d Cir.), cert. 
denied, 120 S. Ct. 579 (1999) (finding that citizens have a private 
right of action under agency's regulations promulgated under section 
602 of Civil Rights Act of 1964).
---------------------------------------------------------------------------

B. Roles and Opportunities To Participate

1. Recipients
    OCR may work closely with recipients to ensure that the Agency has 
a complete and accurate record of all relevant information pertaining 
to the complaint, and a full understanding of the recipient's position 
relating to the allegations. In order for OCR to perform the 
appropriate analyses, one of the most important things recipients may 
do as early as possible is to provide OCR with all of the information 
relevant to the complaint, including, but not limited to, background 
information, the permit application(s), monitoring data, computer 
modeling, other aspects of the recipient's analysis of the 
application(s), and any information relating to steps the recipient 
took to address potential Title VI concerns, as described in Section V. 
B. of this document. OCR may request interviews of a recipient's staff, 
and copies of or access to relevant documents in the recipient's 
possession. Moreover, under EPA's Title VI regulations, OCR has the 
authority to obtain information from recipients and interview recipient 
staff.\78\ Full and expeditious disclosure of such information would 
facilitate resolution of Title VI complaints.\79\
---------------------------------------------------------------------------

    \78\ 40 CFR 7.85(b), (f).
    \79\ In addition to considering information supplied by 
recipients, OCR will also evaluate information provided by 
complainants and may develop its own information and analyses.
---------------------------------------------------------------------------

    EPA's Title VI implementing regulations provide the recipient with 
several opportunities to respond to the complaint and to OCR's finding. 
First, the recipient may make a written submission responding to, 
rebutting, or denying the allegations raised in a complaint within 30 
calendar days of receiving notification that OCR has received the 
complaint for investigation.\80\ Second, OCR will attempt to resolve 
the complaint informally, during which time the recipient will be able 
to state its position. Third, if OCR makes a preliminary finding of 
noncompliance with the regulations, the recipient may submit a written 
response within 50 calendar days of receiving the preliminary finding, 
demonstrating that the preliminary findings are incorrect or that 
compliance may be achieved through steps other than those recommended 
by OCR.\81\ Finally, if OCR begins the procedure to deny, annul, 
suspend, or terminate EPA assistance, recipients may request a hearing 
before an ALJ \82\ and, if the ALJ's decision upholds a finding of 
noncompliance, the recipient may then file exceptions with the 
Administrator.\83\
---------------------------------------------------------------------------

    \80\ 40 CFR 7.120(d)(1).
    \81\ 40 CFR 7.115(d).
    \82\ 40 CFR 7.130(b)(2).
    \83\ 40 CFR 7.130(b)(3).
---------------------------------------------------------------------------

2. Complainants
    Once OCR accepts a complaint for investigation, complainants may 
play an important role in the administrative process; however, that 
role is determined by the nature and circumstances of the claims. As 
with the recipient, one of the most important things that complainants 
may do is to provide OCR with all of the information in their 
possession relevant to their complaint. OCR may request interviews of 
complainants, and copies of or access to relevant documents in the 
complainant's possession.
    Also, complainants may play an important role in the informal 
resolution process. Upon accepting a complaint for investigation, OCR 
may suggest that the complainant and the recipient attempt to 
informally resolve

[[Page 39672]]

their issues with minimal direct involvement by OCR. In such cases, 
complainants would clearly have a significant role in the process. 
Alternatively or in addition to that process, OCR may seek to 
informally resolve the complaint directly with the recipient. In those 
situations, the complainant's role is determined by the nature and 
circumstances of the claims.
    It is important to note that EPA does not represent the 
complainants, but rather the interests of the Federal government, in 
ensuring nondiscrimination by its recipients. The investigation of 
Title VI complaints does not involve an adversarial process between the 
complainant and the recipient. Instead, it should be viewed as OCR 
following up on information that alleges EPA funds are being used 
inappropriately. Consequently, the complainants do not have the burden 
of proving that their allegations are true, although their complaint 
should present a clearly articulated statement of the alleged 
violation. It is OCR's job to investigate allegations and determine 
compliance, although OCR may have difficulty conducting its 
investigation if complainants are unable or unwilling to provide 
relevant information. In addition, because the Title VI administrative 
process is not an adversarial one between the complainant and 
recipient, there are no appeal rights for the complainant built into 
EPA's Title VI regulatory process.

III. Accepting or Rejecting Complaints

A. Criteria

    It is the general policy of OCR to investigate all administrative 
complaints concerning the conduct of a recipient of EPA financial 
assistance \84\ that satisfy the jurisdictional criteria in EPA's 
implementing regulations.\85\ OCR does not expect to investigate 
complaints that are so incoherent that they cannot be considered to be 
grounded in fact and those that fail to provide an avenue for 
contacting the complainant (e.g., no phone number, no address).
---------------------------------------------------------------------------

    \84\ See 40 CFR 7.15.
    \85\ See 40 CFR 7.120.
---------------------------------------------------------------------------

    OCR intends to accept and investigate a complaint if it meets the 
following jurisdictional criteria:
    (1) It is written (i.e., oral complaints will not be accepted for 
investigation); \86\
---------------------------------------------------------------------------

    \86\ 40 CFR 7.120(b)(1).
---------------------------------------------------------------------------

    (2) It identifies the entity that allegedly performed the 
discriminatory act \87\ and describes the alleged discriminatory act(s) 
that violates EPA's Title VI regulations (i.e., an act of intentional 
discrimination or one that has the effect of discriminating on the 
basis of race, color, or national origin); \88\
---------------------------------------------------------------------------

    \87\ Because EPA's Title VI regulations apply only to recipients 
of EPA financial assistance, OCR will, within the 20-day period, 
establish whether the person or entity that took the alleged 
discriminatory act is in fact an EPA recipient as defined by 40 CFR 
7.25.
    \88\ 40 CFR 7.120(b)(1).
---------------------------------------------------------------------------

    (3) It is filed within 180 calendar days of the alleged 
discriminatory act(s); \89\ and
---------------------------------------------------------------------------

    \89\ 40 CFR 7.120(b)(2); see also section III.B. (discussing 
timeliness of complaints).
---------------------------------------------------------------------------

    (4) It is filed by:
    (a) A person who was allegedly discriminated against in violation 
of EPA's Title VI regulations;
    (b) A person who is a member of a specific class of people that was 
allegedly discriminated against in violation of EPA's Title VI 
regulations; or
    (c) A party that is authorized to represent a person or specific 
class of people who were allegedly discriminated against in violation 
of EPA's Title VI regulations.\90\
---------------------------------------------------------------------------

    \90\ 40 CFR 7.120(a). Information submitted by parties that does 
not satisfy these criteria may be used by OCR to determine whether 
to perform a compliance review under 40 CFR 7.110, 7.115.
---------------------------------------------------------------------------

    EPA's Title VI regulations state that OCR will make a determination 
to accept for investigation, reject, or refer to the appropriate 
Federal agency, a complaint within 20 calendar days of acknowledgment 
of its receipt.\91\ Also, if OCR needs clarification before any of the 
above listed determinations can be made on particular allegations, it 
will request further clarification.
---------------------------------------------------------------------------

    \91\ 40 CFR 7.120(d)(1).
---------------------------------------------------------------------------

    If a complaint contains multiple allegations, it is possible that 
OCR may reject some allegations, refer some allegations to other 
appropriate Federal agencies, and/or request clarification on some 
allegations. OCR will notify the complainant and the recipient of such 
actions.\92\
---------------------------------------------------------------------------

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

    It is expected that some recipients may voluntarily adopt 
individual activities or more comprehensive approaches designed to 
identify and address potential Title VI concerns. Section II of the 
Draft Recipient Guidance discusses steps that recipients can take to 
reduce the likelihood of Title VI complaints, including emphasizing 
effective public participation and identifying areas for development of 
agreements to reduce impacts. The identification and remedy of such 
concerns, independent of a particular permitting decision or early in a 
permitting process, may lead to generalized improvements in public 
health and the environment and may reduce the number of Title VI 
complaints filed with EPA. Recipients can combine individual activities 
and approaches encouraged in the Draft Recipient Guidance to address a 
range of potential issues that might result in Title VI complaints.\93\ 
However, OCR's threshold decision to accept a complaint for 
investigation or to reject it is based on the jurisdictional criteria 
provided in EPA's Title VI regulations,\94\ regardless of whether the 
recipient adopted any individual activities or a more comprehensive 
approach to address Title VI concerns.
---------------------------------------------------------------------------

    \93\ See Sections V.B.2. and VI.B.1.b. (discussing ``due 
weight'' for recipient's complaint-specific analyses and other Title 
VI efforts).
    \94\ See 40 CFR 7.120; see also Section III.A.
---------------------------------------------------------------------------

B. Timeliness of Complaints

1. Start of 180-day ``Clock''
    Under EPA's regulations, a complaint must be filed within 180 
calendar days of the alleged discriminatory act.\95\ Complaints 
alleging discriminatory effects resulting from a permit should be filed 
with EPA within 180 calendar days of issuance of that permit. If the 
180th day falls on a weekend or holiday, that day will not be counted 
and the deadline for filing will be extended to the next business day. 
However, weekends and holidays that occur before the 180th day should 
be counted toward the 180 days. OCR generally considers a complaint to 
be ``filed'' on the date that it arrives at EPA, not on the date that 
the complaint is mailed or otherwise transmitted to EPA by the 
complainant. EPA will likely accept a complaint alleging a continuing 
violation as long as action subject to Title VI has occurred within the 
180-day period.
---------------------------------------------------------------------------

    \95\ 40 CFR 7.120(b)(2). It should be emphasized that ``180 
calendar days'' is not the same as ``six months.''
---------------------------------------------------------------------------

    Allegations concerning a discriminatory public participation 
process should be filed within 180 calendar days of the alleged 
discriminatory act in that process. For example, if complainants allege 
that the recipient improperly excluded them from participating in a 
hearing, then the complaint should be filed within 180 calendar days of 
that hearing.
    Complaints not filed within the 180 calendar day time period will 
generally be considered untimely and will not be accepted for 
investigation. While a specific complaint may be rejected on the basis 
of untimeliness, OCR may choose to conduct a compliance review of the 
recipient's relevant permit

[[Page 39673]]

program either at that point in time or at some future date.\96\
---------------------------------------------------------------------------

    \96\ See, 40 CFR 7.110, 7.115.2. Good Cause Waiver
---------------------------------------------------------------------------

    OCR may waive the 180-day time limit for good cause.\97\ OCR will 
determine on a case-by-case basis whether to waive the time limit for 
good cause.
---------------------------------------------------------------------------

    \97\ 40 CFR 7.120(b)(2).
---------------------------------------------------------------------------

3. Ongoing Permit Appeals or Litigation
    OCR will generally dismiss complaints without prejudice \98\ if the 
issues raised in the complaint are the subject of either ongoing 
administrative permit appeals or litigation in Federal or state court. 
The outcome of such permit appeals or litigation could affect the 
circumstances surrounding the complaint and any investigation that OCR 
may conduct. In such cases, OCR believes that it should await the 
results of the permit appeal or litigation. As a result, such 
complaints will generally be closed, but OCR expects to waive the time 
limit to allow complainants to re-file their complaints after the 
appeal or litigation, rather than conduct a simultaneous investigation 
on the basis of facts that may change due to the outcome of the 
administrative appeal or litigation.
---------------------------------------------------------------------------

    \98\ In other words, OCR may dismiss the complaint, but that 
dismissal would not prohibit the complainant from re-filing its 
complaint at a later date.
---------------------------------------------------------------------------

    a. Permit Appeal Processes: OCR believes, in making a good cause 
determination, that it is appropriate to consider a complainant's 
pursuit of its Title VI concerns through the recipient's administrative 
appeal process. This will encourage complainants to exhaust 
administrative remedies available under the recipient's permit appeal 
process and foster early resolution of Title VI issues. Under such 
circumstances and after evaluating other considerations relevant to the 
particular case, OCR may waive the 180 day filing time limit if the 
complaint is filed within a reasonable time period after the conclusion 
of the administrative appeal process. Generally, that reasonable time 
period will be no more than 60 calendar days.
    b. Litigation: If the complainant seeks to pursue a Title VI 
complaint with OCR on issues that are the subject of ongoing Federal or 
state court litigation, the complaint should be re-filed within a 
reasonable time period, generally no more than 60 calendar days after 
the conclusion of the litigation. However, OCR may choose not to 
proceed with a complaint investigation if the allegations in the 
complaint were actually litigated and substantively decided by a 
Federal court. For example, if a Federal court reviewed evidence 
presented by both parties and issued a decision that stated the 
allegations of discrimination were not true, OCR may choose not to 
investigate allegations in the complaint that deal with those same 
issues. In addition, if a state court reviewed evidence presented by 
both parties and issued a decision, then OCR may consider the outcome 
of the court's proceedings to determine if they inform OCR's decision 
making process.
    Generally, OCR may choose to investigate if the complaint raises 
issues that were not actually litigated or substantively decided by a 
Federal court, or if it raises unique and important legal or policy 
issues. OCR may look for guidance to judicial principles and other 
provisions of law on how prior court decisions may affect OCR's 
determination of whether to investigate a complaint.
4. Premature Complaints
    When complaints alleging discriminatory effects from a permit are 
filed prior to the issuance of the permit by the recipient, OCR expects 
to notify the complainant that the complaint is premature and dismiss 
the complaint without prejudice. If the complainant is not satisfied 
Title VI nondiscrimination requirements have been met when the permit 
is issued, the complainant can re-file its compliant if and when the 
permit is issued. In any case, OCR intends to provide the recipient 
with a copy of the complaint to facilitate the recipient's ability to 
appropriately address the concerns raised in the complaint during the 
permitting process.

IV. Resolving Complaints

    EPA's Title VI regulations call for OCR to pursue informal 
resolution of administrative complaints wherever practicable.\99\ To 
conserve EPA investigative resources and to obtain beneficial results 
for the parties, EPA encourages pursuit of informal resolution from the 
beginning of the administrative process. The term ``informal 
resolution'' refers to any settlement of complaint allegations prior to 
the issuance of a formal finding of noncompliance. Settlement after a 
formal finding is referred to as reaching ``voluntary compliance.'' 
Voluntary compliance agreements must be in writing, set forth the 
specific steps the recipient has agreed to take, and be signed by the 
Director of OCR or her designee and an official with legal authority to 
bind the recipient.\100\
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    \99\ 40 CFR 7.120(d)(2).
    \100\ 40 CFR 7.115(f).
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A. Reaching Informal Resolution

    OCR will encourage informal resolution in both the notification of 
receipt of a complaint and again with acceptance of a complaint for 
investigation. Informal resolution may follow either of the two 
approaches below.
1. Informal Resolution Between Recipient and Complainant
    The first approach is for the recipients and complainants to try to 
resolve the issues between themselves. To the extent resources are 
available, EPA expects to provide support for efforts at informal 
resolution. If the resolution results in withdrawal of the Title VI 
administrative complaint, OCR would expect to dismiss the complaint, 
notify the recipients and complainants, and close the complaint file. 
OCR encourages recipients to consider the use of alternative dispute 
resolution (ADR) techniques when appropriate to informally resolve the 
complaint. ADR includes a variety of approaches including the use of a 
third party neutral acting as a mediator or the use of a structured 
process through which the parties can participate in shared learning 
and creative problem solving to reach a consensus.\101\
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    \101\ See Draft Recipient Guidance, Section II.B.5. (providing 
additional information about alternative dispute resolution).
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2. Informal Resolution Between EPA and Recipient
    A second approach is for OCR and the recipient to reach agreement 
on relief. Depending upon the facts and circumstances of the complaint, 
OCR may seek participation from the complainant, the permittee, or 
others. In appropriate situations, OCR expects to use ADR techniques to 
informally resolve the complaint.
    OCR will discuss offers by recipients to reach informal resolution 
at any point during the administrative process before the formal 
finding. However, it is OCR's responsibility to ensure that the 
interests of the Federal government are served and no violations of 
Title VI or EPA's implementing regulations exist in a recipient's 
programs or activities. Therefore, before any agreement between the 
recipient and OCR can be reached, an investigation may be needed to 
determine the appropriate relief and/or corrective action necessary to 
eliminate or reduce to the extent required by Title VI the adverse 
disparate impacts.

[[Page 39674]]

B. Implementing Informal Resolutions 102

    As described above, EPA encourages recipients to informally resolve 
Title VI complaints with complainants and/or OCR. In appropriate 
circumstances, the Agency expects that measures that eliminate or 
reduce to the extent required by Title VI the alleged adverse disparate 
impacts will be an important focus of the informal resolution process. 
Denial of the permit at issue will not necessarily be an appropriate 
solution. It will likely be a rare situation where the permit that 
triggered the complaint is the sole reason a discriminatory effect 
exists. During the informal resolution process, whether with EPA or 
with complainants, recipients can offer to provide various measures to 
reduce or eliminate impacts that are narrowly tailored toward 
contributing sources, including the permit at issue, using the 
recipient's existing permitting authorities. Such measures include 
changes in policies or procedures, additional pollution control, 
pollution prevention, offsets, and emergency planning and response.
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    \102\ See Draft Recipient Guidance, section II.B.6. (providing 
additional information about remedial measures).
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    Alternatively or in addition, during the informal resolution 
process, recipients can propose broader measures that are outside those 
matters ordinarily considered in the permitting process. For example, 
in response to a complaint alleging that airborne lead emissions from a 
permitted facility will have an adverse disparate impact on nearby 
residents, the recipient and complainant could agree to an informal 
resolution under which the recipient would obtain lead emissions 
reductions from that facility, as well as from other facilities 
contributing lead emission in the area. The recipient could also offer 
to work with other agencies to establish a household lead abatement 
program to further reduce the facility's impact.\103\ If the issues are 
informally resolved and the complainant withdraws the complaint, OCR 
expects to close its investigation.
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    \103\ See Draft Recipient Guidance, section II.B.4. (providing 
additional information about intergovernmental involvement).
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    During the informal resolution process, the recipient may 
independently submit a plan to OCR to eliminate or reduce, to the 
extent required by Title VI, adverse disparate impacts. While the plan 
may be developed without consulting with complainants or others, EPA 
expects that informal resolution will be more successful if recipients 
work with OCR, complainants, and other appropriate parties to develop a 
plan for eliminating or reducing the alleged adverse disparate impact. 
Cooperative approaches, such as area-specific agreements \104\ to 
eliminate or reduce, to the extent required by Title VI, adverse 
disparate impacts, will more likely adequately address the Title VI 
concerns.
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    \104\ See sections V.B.2. and VI.B.1.b. (discussing area-
specific agreements); see also, Draft Recipient Guidance, section 
II.A.2. (describing geographic area-specific approaches).
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    If the recipient is pursuing a resolution with OCR, the sufficiency 
of such an approach would likely be evaluated in consultation with 
experts in the EPA program at issue. OCR may also consult with 
complainants, although their consent is not necessary. If, based on its 
review, OCR agrees that the adverse disparate impact will be eliminated 
or reduced, to the extent required by Title VI, pursuant to the plan, 
the parties will be so notified. Assuming that sufficient assurances 
are provided regarding implementation of such a plan, the complaint 
would be resolved and closed. The measures should be established in a 
settlement agreement to be monitored by OCR. Any settlement agreement 
should provide for enforcement by EPA, which may include special 
conditions on future assistance grants for failure to comply with the 
agreement.
    It may be possible to reach informal resolution regarding some, but 
not all, of the allegations OCR accepts for investigation. Those not 
informally resolved will be investigated and resolved through the 
process outlined in EPA's Title VI regulations and in accordance with 
this guidance. OCR may also reopen a complaint if the recipient does 
not comply with its commitments in the settlement agreement.

V. Investigative Procedures

    The process of investigating a Title VI complaint is not analogous 
to a judicial process in which plaintiffs and defendants must each 
present information and arguments supporting a particular finding. EPA, 
like other Federal agencies, is responsible for investigating formal 
complaints concerning the administration of programs by recipients of 
financial assistance. However, EPA expects that this process will often 
be substantially improved and expedited by information submitted by 
complainants and recipients.

A. Submission of Additional Information

    During the course of the investigation, complainants and recipients 
may submit additional relevant information to supplement EPA's 
analyses. OCR intends to balance the need for a thorough investigation 
with the need to complete the investigation in a timely manner. 
Therefore, at the conclusion of interviews of the complainants, 
recipients, or other witnesses, OCR expects to ask each to submit, 
within a reasonable time of the interview (e.g., 14 calendar days), any 
additional information that they would like considered as OCR drafts 
its investigative report.
    EPA encourages recipients to adopt individual activities or more 
comprehensive approaches designed to identify and address potential 
Title VI concerns. Section II of the Draft Recipient Guidance offers 
suggestions that recipients can take to reduce the likelihood of Title 
VI complaints, including emphasizing effective public participation, 
and identifying areas for development of agreements to reduce impacts. 
The identification and remedy of such concerns, independent of a 
particular permitting decision or early in a permitting process, may 
lead to generalized improvements in public health and the environment, 
and may reduce the number of Title VI complaints filed with EPA. OCR 
will carefully review any information provided by a recipient 
concerning the procedures and outcomes of programs adopted to address 
Title VI concerns.

B. Granting Due Weight to Submitted Information

    Under the Civil Rights Act of 1964, EPA is charged with assuring 
compliance with Title VI and cannot delegate its responsibility to 
enforce Title VI to its recipients.\105\ Therefore, OCR cannot grant a 
recipient's request that EPA defer to a recipient's own assessment that 
it has not violated Title VI or EPA's regulations or that EPA rely on 
an assertion that a Title VI program has been followed.\106\ Thus, with 
regard

[[Page 39675]]

to the processing of Title VI complaints, EPA is required to retain 
the:
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    \105\ 42 U.S.C. 2000d-1.
    \106\ See 28 CFR 50.3(b) (``Primary responsibility for prompt 
and vigorous enforcement of Title VI rests with the head of each 
department and agency administering programs of Federal financial 
assistance.''); Memorandum from Bill Lann Lee, Acting Assistant 
Attorney General, U.S. Department of Justice, to Executive Agency 
Civil Rights Directors, p. 3 (Jan. 28, 1999) (titled Policy Guidance 
Document: Enforcement of Title VI of the Civil Rights Act of 1964 
and Related Statutes in Block Grant-Type Programs) (``It is 
important to remember that Federal agencies are responsible for 
enforcing the nondiscrimination requirements that apply to 
recipients of assistance under their programs.'').
---------------------------------------------------------------------------

     Ability to supplement the recipient's analysis or to 
investigate the issues de novo;
     Approval authority over any proposed resolution; and
     Ability to initiate its own enforcement actions and 
compliance reviews.
1. Analyses or Studies \107\
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    \107\ While recipients are not required to submit complaint-
specific analyses or to develop more comprehensive Title VI 
approaches, such as the area-specific agreements described below, 
such efforts could help avoid Title VI problems by identifying and 
addressing potential adverse disparate impacts.
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    In response to allegations, or during the course of an 
investigation, recipients as well as complainants may submit evidence 
such as data and analyses to support their position that an adverse 
disparate impact does or does not exist.\108\ EPA believes that it can, 
under certain circumstances, recognize the results of such analyses and 
give them appropriate due weight.
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    \108\ This Draft Revised Investigation Guidance is limited to 
investigating allegations of discriminatory effects resulting from 
the issuance of permits; therefore, investigatory techniques and the 
concept of due weight applied in the context of allegations 
regarding discrimination in public participation processes are not 
addressed. However, the Draft Recipient Guidance, section II.C. 
contains a discussion of the circumstances under which OCR might 
accord a public participation process due weight.
---------------------------------------------------------------------------

    OCR would expect that a relevant adverse impact analysis or a 
disparity analysis would, at a minimum, generally conform to accepted 
scientific approaches. It may focus on a spectrum of potential adverse 
impacts, such as described in the analytical framework set forth in 
section VI below, or may be more focused, such as upon the impact of a 
specific pollutant on nearby populations (e.g., a study regarding the 
impact of lead emissions on blood lead levels in the surrounding area). 
The weight given any information related to the level or existence of 
adverse impacts and the extent to which OCR may rely on it in its 
decision will likely vary depending upon the following elements:
     Relevance of the evidence to the alleged impacts;
     Validity of the methodologies;
     Completeness of the documentation submitted;
     Degree of consistency between the methodology used, and 
the findings and conclusions; and
     Uncertainties of the input data and results.
    Consequently, submitted materials would be subject to scientific 
review by EPA experts.
    OCR expects to give more weight to submitted analyses that are 
relevant to the Title VI concerns in the complaint and have sufficient 
scope, completeness, and accuracy. If the analyses submitted meet the 
elements above, OCR will not seek to duplicate or conduct such 
analyses, but instead will evaluate the appropriateness and validity of 
the relevant methodology and assess the overall reasonableness of the 
outcome or conclusions at issue.
    If the elements above are met, then OCR will likely rely on the 
evidence in its decision. In the instance where a submitted analysis 
shows no adverse disparate impact exists, and the analysis generally 
follows the procedures in section VI below and meets the elements 
described above, then OCR may rely on it in a finding that the 
recipient is in compliance with EPA's Title VI regulations. If OCR's 
review reveals that the evidence contains significant deficiencies with 
respect to the elements above, then the analysis will likely not be 
relied upon in OCR's decision.
2. Area-specific Agreements
    In the Draft Recipient Guidance, EPA encourages recipients to 
identify geographic areas where adverse disparate impacts may exist and 
to enter into agreements with affected residents and stakeholders to 
eliminate or reduce, to the extent required by Title VI, adverse 
disparate impacts in those specific areas.\109\ Collaboration with 
communities and other appropriate stakeholders to develop the criteria 
used to identify the geographic areas and in designing potential 
solutions to address any adverse disparate impacts will be an important 
element of the approach.
---------------------------------------------------------------------------

    \109\ See Draft Recipient Guidance, section II.A.2. (discussing 
area-specific agreements).
---------------------------------------------------------------------------

    An example of an approach to develop an area-specific agreement 
might be where a recipient, in collaboration with communities and other 
appropriate stakeholders, identifies a section of a city as an area 
where permitted lead emissions are contributing to discriminatory 
health effects on African Americans. The recipient then might convene a 
group of stakeholders with the ability to help solve the identified 
lead problem, including owners of facilities with lead emissions, other 
state and local government agencies, affected community members, and 
non-governmental organizations. The group may develop an agreement 
where each party agrees to particular actions that will eliminate or 
reduce the adverse lead impacts in that specific area.
    Another example might be an area-specific agreement that 
establishes a ceiling on pollutant releases with a steady reduction in 
those pollutants over time. The period of time over which those 
reductions should occur will likely vary with a number of factors, 
including the magnitude of the adverse disparate impact, the number and 
types of sources involved, the scale of the geographic area, the 
pathways of exposure, and the number of people in the affected 
population. It is worth noting, however, that pre-existing obligations 
to reduce impacts imposed by environmental laws (e.g., ``reasonable 
further progress'' as defined in Clean Air Act section 171(1)) might 
not be sufficient to constitute an agreement meriting due weight. Also, 
area-specific agreements need not be limited to one environmental media 
(e.g., air emissions), they may also cover adverse disparate impacts in 
several environmental media (e.g., air and water).
    If OCR accepts a complaint for investigation involving allegations 
of adverse disparate impacts related to any of the permitting actions 
covered by an area-specific agreement, OCR expects, under certain 
circumstances, to review and give due weight to the agreement if it:
     Is supported by underlying analyses that have sufficient 
depth, breadth, completeness, and accuracy, and are relevant to the 
Title VI concerns; and
     Will result in actual reductions over a reasonable time to 
the point of eliminating or reducing, to the extent required by Title 
VI, conditions that might result in a finding of non-compliance with 
EPA's Title VI regulations.\110\
---------------------------------------------------------------------------

    \110\ The determination that an area-specific agreement will 
result in actual reductions of adverse disparate impacts will likely 
entail many of the same steps described in sections VI.B.2 through 
4.
---------------------------------------------------------------------------

    The greatest weight OCR could accord such an agreement is to find 
that the actions taken under it will eliminate or reduce, to the extent 
required by Title VI, existing adverse disparate impacts. If OCR makes 
such a finding, it would then close its investigation into the 
allegation.
    If a later-filed complaint raises allegations regarding other 
permitting actions by the recipient that are covered by the same area-
specific agreement, OCR would generally rely upon its earlier finding 
and dismiss the allegations. An exception to this general guideline 
would occur where there is an allegation or information revealing that 
circumstances had changed substantially such that the area-specific

[[Page 39676]]

agreement is no longer adequate or that it is not being properly 
implemented.
    If OCR's review reveals that the area-specific approach, the 
specific agreement, or its underlying analyses do not result in actual 
reductions to the point of significantly reducing or eliminating 
impacts that would result in a finding of non-compliance with EPA's 
Title VI regulations, then it will likely not be relied upon in OCR's 
decision. In that instance, OCR would be more likely to conduct a 
first-hand investigation of the allegations. Throughout the 
investigation, EPA also intends to consider other available 
information, including information submitted by complainants.

C. Submission of Additional or Amended Complaints

    During the course of OCR's investigations, complainants can also 
submit additional allegations of violations of EPA's Title VI 
regulations. Each additional allegation would have to satisfy the 
jurisdictional criteria described in section III.A. above in order to 
be accepted for investigation.\111\ Generally, the additional 
allegations will be considered a new and separate complaint. In some 
cases, for reasons of efficiency, OCR may treat the new allegations as 
amendments to the existing complaint and incorporate them into the 
existing investigation.
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    \111\ See 40 CFR 7.120.
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    For example, assume OCR accepts a complaint for investigation that 
only alleges that a recently issued water discharge permit has a 
discriminatory human health impact on African Americans. Two months 
after OCR conducts interviews, complainants attempt to amend their 
complaint by alleging that two air emissions permits issued for a 
different part of the source have a discriminatory effect on African 
Americans. In this instance, OCR will generally consider the 
allegations regarding the air permits as a new complaint, not an 
amendment to the existing complaint, because incorporating the new 
allegations would substantially change the scope of the existing 
investigation. Complainants and recipients will be appropriately 
notified.
    If a complainant amends its complaint with additional allegations 
before OCR decides to accept for investigation, reject, or refer the 
allegations to another Federal agency, OCR intends to acknowledge 
receipt of the new allegations and notify the recipient. Both the 
complainant and the recipient should also be notified that OCR expects 
to make a determination to accept for investigation, reject, request 
clarification, or refer all of the allegations within 20 calendar days 
of receipt of the most recent allegations.\112\
---------------------------------------------------------------------------

    \112\ 40 CFR 7.120(d)(1).
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D. Discontinued Operations/Mootness

    OCR expects to dismiss allegations about discriminatory effects of 
a permit if, prior to commencement of any activities allowed by the 
permit and before OCR completes its investigation, that permit is 
withdrawn or revoked, or if a final decision is made by the permittee 
not to operate under that permit. If the activities commence under the 
permit at issue, but are permanently halted for any reason prior to the 
conclusion of OCR's investigation, OCR may continue its investigation 
because some discriminatory effects may have occurred as a result of 
operations. However, the current status of the source should be taken 
into account in the analysis. OCR expects that other allegations that 
are not specific to the permit (e.g., allegations concerning state-wide 
issues) would not be closed because those issues may continue to exist 
notwithstanding the status of the permit.

E. Filing/Acceptance of Title VI Complaint Does Not Invalidate Permit

    Neither the filing of a Title VI complaint nor the acceptance of 
one for investigation by OCR stays the permit at issue.

VI. Adverse Disparate Impact Analysis

    Evaluations of alleged violations of EPA's Title VI regulations 
should be based upon the facts and totality of the circumstances that 
each case presents, and show both an adverse and disparate effect. 
Rather than using a single technique for analyzing and evaluating 
adverse disparate impact allegations in all situations, OCR expects to 
use several techniques within the broad framework discussed here. 
Moreover, OCR expects that parts of the analytical framework described 
in this section will be omitted, altered, or supplemented to address 
the particular characteristics of each complaint. Any method of 
evaluation chosen within that framework will be a reasonably reliable 
indicator of the level of potential adverse impacts and disparity.

A. Framework for Adverse Disparate Impact Analysis

    The framework that OCR expects to use for determining whether an 
adverse disparate impact exists should generally be performed in a 
step-wise fashion in the order set forth below.
    Step 1: Assess Applicability
     Determine the type of permit action at issue (i.e., new 
permit, renewal, modification). Generally, OCR will not initiate an 
investigation where the permit that triggered the complaint is a 
modification, such as a facility name change or a change in a mailing 
address, that does not involve actions related to the stressors 
identified in the complaint.
     Determine whether the relevant permit is covered by an 
area-specific agreement that OCR has already determined will eliminate 
or reduce, to the extent required by Title VI, the adverse disparate 
impacts. If so, then the investigation of the allegation will likely be 
closed.\113\
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    \113\ See section V.B.2. (discussing criteria for area-specific 
agreements that would receive due weight).
---------------------------------------------------------------------------

     If the complaint alleges discriminatory effects from 
emissions, including cumulative emissions, determine whether the permit 
action that triggered the complaint significantly decreases overall 
emissions at the facility. If so, then OCR will likely close the 
investigation of allegations regarding cumulative impacts.
     If the complaint alleges discriminatory effects from 
emissions, including cumulative emissions, and it specifies certain 
pollutants of concern, determine whether the permit action that 
triggered the complaint significantly decreases those pollutants of 
concern named in the complaint or those pollutants EPA reasonably 
infers are the potential source of the alleged impact. If so, then OCR 
will likely close the investigation of allegations regarding cumulative 
impacts.
    Step 2: Define Scope of Investigation: Determine the nature of 
stressors, sources of stressors, and/or impacts cognizable under the 
recipient's authority; review available data; determine which sources 
of stressors should be included in the analysis; and develop a project 
plan.
    Step 3: Conduct Impact Assessment: Determine whether the activities 
of the permitted entity at issue, either alone or in combination with 
other relevant sources, are likely to result in an impact.
    Step 4: Make Adverse Impact Decision: Determine whether the 
estimated risk or measure of impact is adverse. If the impact is not 
adverse, the allegation will not form the basis of a finding of non-
compliance with EPA's Title VI regulations and will be closed. If the 
permit action clearly leads to a decrease in adverse disparate impacts, 
it is not expected to form the basis of a finding of a recipient's non-
compliance with EPA's Title VI regulations and will be closed.

[[Page 39677]]

    Step 5: Characterize Populations and Conduct Comparisons: Determine 
the characteristics of the affected population. Conduct an analysis to 
determine whether a disparity exists between the affected population 
and an appropriate comparison population in terms of race, color, or 
national origin, and adverse impact.
    Step 6: Make Adverse Disparate Impact Decision: Determine whether 
the disparity is significant. If it is not significant, the allegation 
will not likely form the basis of a finding of non-compliance with 
EPA's Title VI regulations and will likely be closed.
    Each of these steps is described more fully below.

B. Description of Adverse Disparate Impact Analysis

1. Assess Applicability
    Assessing the applicability involves three initial considerations 
as outlined below.
    a. Determine Type of Permit: Allegations that concern impacts 
resulting from a recipient's permitting actions can arise in several 
different contexts: (1) The issuance of new permits; (2) the renewal of 
existing permits; and (3) the modification of existing permits. 
Regardless of the type of permit involved, if a complaint is filed with 
OCR alleging that the recipient violated Title VI or EPA's regulations, 
OCR's decision to accept the complaint for investigation or to reject 
it must be based on the jurisdictional criteria provided in EPA's Title 
VI regulations.\114\
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    \114\ 40 CFR 7.120. See also section III.A.
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    Modifications, such as a facility name change or a change in a 
mailing address, that do not involve actions related to the stressors 
identified in the complaint, generally will not form the basis for a 
finding of noncompliance and will likely be closed.
    The following type of permit actions could form the basis for 
initiating a Title VI investigation of the recipient's permitting 
program:
     Permit actions, including new permits, renewals, and 
modifications, if the permit causes a net increase in the level of 
stressors or predicted risks or measures of impact (e.g., an increase 
in pollutants with no offsetting reductions).
     Permit actions, including new permits, renewals, and 
modifications, that allow existing levels of stressors, predicted 
risks, or measures of impact to continue unchanged.
    If an allegation regarding a permit modification is accepted for 
investigation, EPA expects the analysis would only evaluate the 
modification and its effects.
    There are two situations where OCR will likely close its 
investigation into allegations of discriminatory effects:\115\
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    \115\ This guidance does not alter in any way, a regulated 
entity's obligation to comply with applicable environmental laws. 
Merely proposing a decrease in emissions does not entitle the permit 
applicant to a permit.
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    (1) If the complaint alleges discriminatory effects from emissions, 
including cumulative emissions, and the permit action that triggered 
the complaint significantly decreases overall emissions \116\ at the 
facility; and
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    \116\ Assessing a significant overall decrease would entail 
taking into account factors such as total quantity and relative 
toxicity of the emissions reductions.
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    (2) If the complaint alleges discriminatory effects from emissions, 
including cumulative emissions, and the permit action that triggered 
the complaint significantly decreases all pollutants of concern named 
in the complaint or all the pollutants EPA reasonably infers are the 
potential source of the alleged impact.\117\
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    \117\ It is important to remember that OCR will treat a decrease 
in emissions at a particular facility differently from an area-
specific agreement that eliminates adverse disparate impacts as 
discussed in section V.B.2. While the decrease in emissions from a 
single permit may result in dismissal of the instant complaint, 
other complaints regarding permit renewals and increases in 
emissions for other sources in the area may be investigated. 
However, if OCR determines that an area-specific agreement meets the 
criteria described in section V.B.2, then investigations into future 
complaints regarding permit actions covered by the area-specific 
agreement generally will be closed.
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    In both situations, the recipients should demonstrate \118\ (not 
merely assert) that the decrease is actual and is significant.\119\ The 
decreases should be in the same media, as well as from the same 
facility, as alleged in the complaint (i.e., a decrease in discharges 
to water may not form the basis for closing investigations into 
allegations of cumulative air impacts). The decreases are measured 
based on actual, contemporaneous \120\ emissions from the facility 
being permitted. In situations where OCR determines that significant 
uncertainty exists regarding the significance of the overall decrease 
or whether the decrease will actually occur, OCR will normally resolve 
such uncertainty in favor of proceeding to investigate for potential 
discriminatory effects. If the permit action includes an increase in 
any emissions, then it would generally result in a decision to 
investigate the cumulative impact allegation.
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    \118\ A recipient may use actual monitoring data, reasonable 
estimates, permit limits, parametric monitoring, or any other 
reliable means to demonstrate the decrease to the satisfaction of 
EPA.
    \119\ EPA will determine significance of a decrease in the 
context of a specific case.
    \120\ Contemporaneous emissions decreases are required. Banking 
over time is not a basis for a decrease dismissal.
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    OCR will determine the relevant pollutant(s) or stressors of 
concern based on the allegations in the complaint. However, if a 
complaint does not explicitly name or refer to particular pollutants or 
stressors of concern and refers generally to ``cumulative impacts'' or 
``overburdened'' communities, EPA will use its expertise to determine 
which pollutants or stressors are of concern based on the complaint and 
the permitting action at issue.
    While a specific complaint may be dismissed on the basis of a 
decrease, OCR may choose to conduct a compliance review of the 
recipient's relevant permit program either at that point in time or at 
some future date.\121\ The analysis of whether discriminatory effects 
result from cumulative emissions, and any resulting remedy, would 
include consideration of the emissions from the permit actions that 
triggered the original complaint (i.e., the one that had the decrease).
---------------------------------------------------------------------------

    \121\ See 40 CFR 7.110, 7.115.
---------------------------------------------------------------------------

    The above discussion regarding decreases does not affect 
allegations relating to public participation.
    b. Determine if Permit is Part of an Agreement to Reduce Adverse 
Disparate Impacts: Recipients may have identified geographic areas 
where adverse disparate impacts may exist, and may have entered into 
agreements with the affected communities and stakeholders to reduce 
impacts in those specific areas.\122\ If the relevant permit is covered 
by an area-specific agreement that OCR has already determined will 
eliminate adverse disparate impacts, then the allegation will likely be 
closed.
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    \122\ See section V.B.2. (discussing criteria for area-specific 
agreements that would receive due weight).
---------------------------------------------------------------------------

2. Define Scope of Investigation
    Determine the nature of stressors, sources of stressors, and/or 
impacts cognizable under the recipient's authority; review available 
data; determine which sources of stressors should be included in the 
analysis; and develop a project plan.
    In defining the scope of an investigation, OCR expects to rely on 
four sets of information: The complaint's allegations, an understanding 
of the recipient's authorities, the results of an evaluation of 
relevant scientific information, and relevant available data. In 
particular, assessing background sources of stressors (e.g., mobile 
source air

[[Page 39678]]

emissions, non-point source runoff) allegedly contributing to 
discriminatory effects, as discussed below, may be required to 
understand whether an adverse impact is created or exacerbated. 
However, in determining whether a recipient is in violation of Title VI 
or EPA's implementing regulations, the Agency expects to account for 
the adverse disparate impacts resulting from sources of stressors, 
stressors, and/or impacts cognizable under the recipient's 
authority.\123\
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    \123\ See section VII (discussing findings of noncompliance).
---------------------------------------------------------------------------

    a. Determine the Nature of Stressors and Impacts Considered: In 
determining the nature of stressors (e.g., chemicals, noise, odor) and 
impacts to be considered, OCR would expect to determine which stressors 
and impacts are within the recipient's authority to consider, as 
defined by applicable laws and regulations. These could include laws 
and regulations that concern permitting programs and laws and 
regulations that involve broader, cross-cutting matters, such as state 
environmental policy acts. For example, a state statute might require 
all major state actions (including the issuance of certain air 
pollution control permits) to take into consideration impacts resulting 
from noise and odors associated with the action. Even if these were not 
explicitly covered by the permitting program, they would appropriately 
be considered as part of the adverse disparate impact analysis, since 
the recipient has some obligation or authority regarding them. A 
recipient need not have exercised this authority for the stressor or 
impact to be deemed within the recipient's authority to consider.
    OCR will also review the allegations presented in the complaint 
concerning geographic scope, sources of concern, pollutants or other 
stressors, and potentially affected populations. OCR expects to 
supplement this review using available data on identified stressors, as 
well as others that may be associated with the identified permitted 
activities, (e.g., TRI and other pollutant inventories that include 
chemicals not listed in most permits) and other sources of stressors. 
This review will include information about the characteristics of the 
sources and stressors (e.g., toxicity, physical-chemical properties) as 
well as available reports describing possible exposures or risks of 
release of stressors from permitted activities and sources.
    b. Determine Universe of Sources: In performing assessments of 
potential adverse disparate impacts, OCR may consider other relevant 
and/or nearby sources of similar stressors for inclusion in the 
analysis. Those included in the analysis are referred to as the 
universe of sources. When a complaint contains more than one 
allegation, there may be more than one appropriate universe of sources 
for an investigation. OCR intends to determine the appropriate 
universe(s) of sources based upon the allegations and facts of a 
particular case.
    As noted above, the relevant universe of sources contributing to 
the potential adverse impacts could include, if appropriate, background 
sources (e.g., mobile source air emissions, non-point source runoff). 
For example, in the case of lead, preexisting or estimated children's 
blood lead levels that may result from both a permitted source and 
household lead paint exposures would be used to help decide whether 
additional emissions of lead are adverse. Thus, cumulative impacts of 
regulated and unregulated sources can be considered to determine the 
cumulative level of potential adverse impacts. OCR would generally 
expect to assess potential adverse cumulative impacts to the extent 
appropriate data are available, taking into account the uncertainties 
associated with the data.
    In many cases, the nature of the sources of stressors, the 
stressors, or the impact being alleged is clear from the complaint. For 
example, complainants may allege that air emissions from specific 
chemical plants have resulted in higher cancer rates for Hispanics 
living near those facilities. In some cases, the nature of the sources 
of stressors or other important information, is not clear. For example, 
complainants may allege that Asian Americans are ``overburdened by 
pollution'' or suffer a variety of impacts from multiple, unidentified 
types of sources.
    In cases where it is unclear, OCR will attempt to determine the 
source of the stressors and/or the nature of the impact(s) being 
alleged, based on the type of permitted entity at issue and the kinds 
of impacts EPA expects could result from the situation described in the 
complaint. This determination would be made after consulting such 
resources as scientific literature reviews, engineering studies, and 
technical experts.
    In addition to considering the scope of the allegations and the 
circumstances of each complaint, OCR expects that the universe of 
sources will fall into three main categories. One category includes 
allegations that involve a permitted facility that is one of a number 
of similar sources in a geographic area. These facilities, together or 
in conjunction with background sources, may present a cumulative 
adverse disparate impact or may reflect a pattern of adverse disparate 
impact. In these cases, OCR expects an assessment will need to evaluate 
the cumulative impacts of pollution from a broad universe of regulated 
and permitted sources \124\ (e.g., large manufacturing facilities), as 
well as regulated but usually unpermitted sources (e.g., some paint 
stripping or metal finishing operations, mobile sources, sources of 
surface water runoff), and unregulated sources.
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    \124\ In this context, ``regulated or permitted'' sources 
include those with permits, as well as those subject to Federal or 
state requirements for reporting of waste generation or emissions 
(e.g., Toxics Release Inventory reporters, Resource Conservation and 
Recovery Act hazardous waste generator sites).
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    Another universe of sources may include only those that are 
regulated or permitted. For example, a complaint may allege that the 
permitting of sanitary landfills throughout the state resulted in 
discriminatory human health effects for African Americans. If the 
complaint does not contain an allegation of cumulative impacts from 
multiple sources, then without any evidence to suggest that permitted 
sanitary landfills is an inappropriate universe of sources, OCR would 
investigate the impacts from those regulated sources (e.g., sanitary 
landfills) described in the complaint.
    In some instances, a third universe of sources category, a single 
permitted entity alone, may support an adverse disparate impact claim. 
While such a case has not yet been presented to EPA, it might, for 
example, involve a permitted activity that is unique (i.e., ``one of a 
kind'') under a recipient's program, such as a permit to store or 
dispose of a unique type of stressor (e.g., radioactive materials, 
pathogens). In these cases, only pollutants or other stressors from the 
specific individual entity that was the focus of the complaint would be 
considered in the adverse disparate impact analysis. Background sources 
would generally not be considered in the analysis.
    Where the activities covered by a recipient's authority constitute 
a portion of the impact, OCR would expect to attempt to conduct an 
assessment to identify the relative contribution of various source 
categories. Some cases may require updating the scope of the assessment 
as a result of an initial review of available materials or 
investigation. For example, available data estimates or initial 
assessments of the status of environmental conditions in a study area 
may change.

[[Page 39679]]

    Having identified the relevant sources and stressors, OCR would 
then expect to define the overall scope of the adverse disparate impact 
investigation, and develop time and resource estimates. The 
investigation may focus on one or more exposure pathways that stressors 
could travel from the permitted entity and other sources to potential 
receptors. This process will also involve forming a project team; 
assessing data availability, relevance, and reliability; and reviewing 
the availability of assessment tools, such as appropriate mathematical 
models and exposure scenarios. The team would develop an initial 
project scope plan, identify information products, and create a 
schedule with milestones for the analysis.
3. Impact Assessment
    Determine whether the activities of the permitted entity at issue, 
either alone or in combination with other relevant sources, may result 
in an adverse impact.
    In this step, the investigatory team develops an assessment to 
determine whether the alleged discriminatory act may cause or is 
associated with one or more impacts. This involves confirming that an 
entity is a source of stressor(s) that could cause or be associated 
with an exacerbation of the alleged impacts, and that there is a 
plausible mechanism and exposure route (e.g., release of a stressor 
with known chronic toxicity effects that may be transported via air to 
receptors for inhalation). EPA expects to attempt to quantify potential 
impacts, using data on sources, stressors, and associated potential 
impacts. While EPA will rely on the best available relevant data in its 
investigations, the utility of available data to make a finding will 
likely vary with the environmental medium, geographic area, and the 
recipient's program, among other things. OCR expects to use all readily 
available relevant data in conducting its assessments.
    However, data may not be readily available for many types of 
impacts, or where available, may not be relevant to the appropriate 
geographic area. In some situations, the data may be insufficient to 
perform an analysis. OCR expects to use available data in a 
hierarchical fashion, depending on their completeness and reliability, 
placing greatest weight on the most reliable. The following is an 
example of this hierarchy of data types, in approximate descending 
order of preference, that OCR expects to use for assessments:
     Ambient monitoring data;
     Modeled exposure concentrations or surrogates in various 
environmental media;
     Known releases of pollutants or stressors into the 
environment;
     The manufacture, use, or storage of quantities of 
pollutants, and their potential for release; and
     The existence of sources or activities associated with 
potential exposures to stressors (e.g., facilities that are generally 
likely to use significant quantities of toxic chemicals which could be 
routinely or catastrophically released; types of agricultural 
production usually associated with chemical application).
    Depending on the allegations in a particular case, and the 
availability of data, any of these above sources of information may be 
considered relevant.
    The reliability, degree of scientific acceptance, and uncertainties 
of impact assessment methods varies greatly. In each case, the 
investigation report is expected to include a discussion of 
uncertainties in the impact assessment. OCR expects to weigh these 
uncertainties in the data and methods as part of its decision process 
(in Step 5). As part of its identification and development of methods 
for conducting impact assessments, OCR submitted several example 
assessment tools for review by the EPA Science Advisory Board.\125\ OCR 
expects to select from the following set of approaches. The facts and 
circumstances of each complaint will determine whether a likely causal 
link exists.
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    \125\ The findings were presented in the December 1998 report, 
An SAB Report: Review of Disproportionate Impact Methodologies; A 
Review by the Integrated Human Exposure Committee (IHEC) of the 
Science Advisory Board (SAB). The report and related materials are 
available on the OCR Web site at http://www.epa.gov/civilrights/investig.htm.
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    Direct link to impacts. The strongest evidence demonstrating a 
causal link between the alleged discriminatory act and the alleged 
adverse impact would directly link an adverse health or environmental 
outcome with the source of a stressor. Although such evidence is 
preferred in reaching a decision, it is rarely available. Not only must 
one have a set of geographically-specific health or environmental 
outcome data (e.g., age-adjusted cancer rates), but also evidence that 
the health or environmental outcomes stem from environmental stressors 
from the permitted entity. Many types of adverse health impacts may 
require years of exposure to a large number of people in order to be 
observed in health outcome data.
    Risk. Another approach involves prediction of potentially 
significant exposures and risks resulting from stressors created by the 
permitted activities or other sources. These predictions may be based 
on ambient levels of stressors derived from monitoring or modeling, 
with information about the likelihood of toxic effects occurring. In 
estimating cancer risks, such unit risk factors estimate the 
probability of contracting a cancer case for a unit of exposure.\126\ 
For example, an area's predicted cancer risk could be based on the 
estimated ambient concentration times the unit risk factor. These could 
be assessed for single chemicals, or be summed for multiple chemicals, 
based on releases from a single source or a combination of sources and 
background levels.\127\
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    \126\ A unit of exposure could include an exposure scenario of a 
person breathing, on average over a lifetime, a concentration of 1 
microgram of pollutant per cubic meter of air.
    \127\ For non-carcinogens, it is not possible to estimate a 
probability of occurrence (i.e., risk); however; a ratio of the 
estimated exposures to benchmark levels can be calculated (i.e., a 
hazard quotient). Hazard quotients for individual chemicals may be 
combined to create a cumulative hazard index, which may be used to 
evaluate the cumulative impact potential. If an exposure occurs at a 
level below the benchmark level (which would result in a hazard 
index value less than 1), this usually indicates that no adverse 
effects would occur. A reference dose is a frequently used example 
of such a benchmark. However, if an exposure occurs above a 
benchmark level, it may not be possible to conclude from those data 
alone that an effect would necessarily occur.
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    Toxicity-weighted emissions. This approach sums the releases of 
multiple stressors (usually chemicals) that may be associated with 
significant risks, weighted by a relative measure of each's toxicity or 
potential to cause impacts. This approach does not present an explicit 
prediction of ambient concentrations or levels of the stressors. For 
example, OCR could obtain or estimate the release quantity of each 
chemical stressor from a source, multiply it by a chronic toxicity 
potency factor score, then sum the products across chemicals to yield a 
total toxicity-weighted stressor score per source. Sources with higher 
levels of toxicity-weighted stressors would be expected to be 
associated with a higher likelihood of causing potential adverse 
impacts.
    Concentration levels. This approach would include modeled or 
monitored ambient concentrations of stressors that may indicate 
potential levels of concern. For example, if the result of an analysis 
is a series of chemical concentration estimates, these would be 
compared to benchmarks of concern for each chemical separately. These 
benchmarks may be based on several things, including toxicity potency 
factors

[[Page 39680]]

similar to those outlined in the Risk discussion above, or rely on less 
quantitative data.
4. Adverse Impact Decision
    Determine whether an estimated risk or measure of impact is 
significantly adverse. If the impact is not significantly adverse, the 
allegation is not expected to form the basis of a finding of non-
compliance with EPA's Title VI regulations and will likely be closed.
    OCR intends to use all relevant information to determine whether 
the predicted impact is significantly adverse under Title VI. 
Generally, OCR would first evaluate the risk or measure of impact 
compared to benchmarks for significance provided under any relevant 
environmental statute, EPA regulation, or EPA policy. Where the risks 
or other measure of potential impact meet or exceed a significance 
level, they generally would be recognized as adverse under Title VI.
    OCR will work with other appropriate EPA offices to evaluate the 
results. If exposures exceed established environmental or human health 
benchmarks, the appropriate EPA program office or the Office of 
Enforcement and Compliance Assurance will be notified so they may take 
appropriate action under environmental laws and regulations. OCR will 
coordinate its investigation into potential Title VI violations with 
any actions taken by other EPA offices. Where no adverse impacts are 
present for any of the sources or combination of sources described 
above, the allegation will not form the basis of a finding of non-
compliance with EPA's Title VI regulations and will be closed.
    This evaluation would need to take into account considerations such 
as policies developed for single stressors or sources without explicit 
consideration of cumulative contributions and uncertainties in 
estimates. In some cases, the relevant environmental laws may not 
identify regulatory levels for the risks of the alleged human health 
impact or may not address them for Title VI purposes. For example, the 
alleged impact may result from cumulative or other risk of effects from 
multiple environmental exposure media. In such cases, OCR could 
consider whether any scientific or technical information indicates that 
those impacts should be recognized as adverse under Title VI. In making 
that determination, OCR would work closely with other EPA offices with 
relevant regulatory programs. Again, where no such risks or impacts are 
present for any of the sources or combination of sources described 
above, the allegation will not form the basis for a finding of non-
compliance with EPA's Title VI regulations and will be closed.
    a. Example of Adverse Impact Benchmarks: EPA uses a range of risk 
values for implementing various environmental programs, depending upon 
the legal, technical, and policy context of the decision at issue. 
Based on these values, OCR would expect that cumulative risks of less 
than 1 in 1 million (10-6) of developing cancer would be 
very unlikely to support a finding of adverse impact under Title VI. 
OCR may make a finding in instances where cumulative risk levels fall 
in the range of 1 in 1 million (10-6) to 1 in 10,000 
(10-4). OCR would be more likely to issue an adversity 
finding for Title VI purposes where the cumulative cancer risk in the 
affected area was above 1 in 10,000 (10-4). A finding of 
adverse impact at this stage of the investigation does not represent a 
finding of noncompliance under Title VI, but rather represents a 
criterion for proceeding further in the analysis.
    For cumulative non-cancer health effects, which are often measured 
as a hazard index, the range of values previously used is less well 
documented, and has been less often applied in a cumulative exposure 
context. Based on the available precedents, OCR generally would be very 
unlikely to use values of less than 1 to support a finding of adverse 
impact under Title VI. Values above 1 cannot be represented as a 
probability of developing disease or other effect.\128\ Generally, the 
farther the hazard index is above 1, the more likely OCR will be to 
issue an adversity finding under Title VI.
---------------------------------------------------------------------------

    \128\ For further discussions of this issue, see the preceding 
footnote.
---------------------------------------------------------------------------

    Compliance with environmental laws does not constitute per se 
compliance with Title VI. Frequently, discrimination results from 
policies and practices that are neutral on their face, but have the 
effect of discriminating. EPA recognizes that most permits control 
pollution rather than prevent it altogether. Also, there may be 
instances in which environmental laws do not regulate certain 
concentrations of sources, or take into account impacts on some 
subpopulations which may be disproportionately present in an affected 
population. For example, there may be evidence of adverse impacts on 
some subpopulations (e.g., asthmatics) and that subpopulation may be 
disproportionately composed of persons of a particular of a race, 
color, or national origin. Title VI is concerned with how the effects 
of the programs and activities of a recipient are distributed based on 
race, color, or national origin. A recipient's Title VI obligation 
exists in addition to the Federal or state environmental laws governing 
its environmental permitting program.
    b. Use of National Ambient Air Quality Standards: EPA and the 
states have promulgated a wide series of regulations to implement 
public health protections. Some of these regulations are based on 
assessment of public health risks associated with certain levels of 
pollution in the ambient environment. The National Ambient Air Quality 
Standards (NAAQS) established under the Clean Air Act are an example of 
this kind of health-based ambient standard setting. By establishing an 
ambient, public health threshold, the primary NAAQS contemplate 
multiple source contributions and establish a protective limit on 
cumulative pollution levels that should ordinarily prevent an adverse 
air quality impact on public health. Air quality that adheres to such 
standards (e.g., air quality in an attainment area) is presumptively 
protective of public health in the general population.
    If an investigation includes an allegation raising air quality 
concerns regarding a pollutant regulated pursuant to a primary NAAQS, 
and where the area in question is attaining that standard, the air 
quality in the surrounding community will generally be considered 
presumptively protective and emissions of that pollutant should not be 
viewed as ``adverse'' within the meaning of Title VI. However, if the 
investigation produces evidence that significant adverse impacts may 
occur, this presumption of no adverse impact may be overcome.
    For example, one situation where the presumption could be overcome 
is the following: An area may be in attainment with the lead NAAQS, but 
in some cases residents could still suffer adverse effects from lead. 
The lead standard was designed to take into account both exposures from 
inhalation of airborne lead (subject to the standard) and exposures 
resulting from non-air pathways such as ingestion of lead contained in 
paint, soil, or water (not subject to the standard).\129\ Contributions 
to total exposure from non-air sources, however, can vary widely, and 
unusually high levels of lead in paint, soil, or water might cause 
residents of some areas to experience adverse effects even if the 
standard is

[[Page 39681]]

met. In such cases, the presumption of no adverse impacts from lead 
could be overcome.\130\
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    \129\ See 43 FR 46248, 46252-54 (Oct. 5, 1978); Lead Industr. 
Ass'n v. EPA, 647 F.2d 1130, 1141-45 (D.C. Cir. 1980).
    \130\ Note also that even if an area is in compliance with the 
NAAQS for a criteria pollutant, there still may be Title VI concerns 
related to other criteria pollutants, to toxic hot spots associated 
with hazardous air pollutants under section 112 of the Clean Air 
Act, or to pollutants from other media.
---------------------------------------------------------------------------

    c. Assessing Decreases in Adverse Impacts in a Permit Action: In 
some circumstances, such as where a decrease in certain emissions is 
accompanied by an increase in other emissions and OCR determines that 
the permit action identified in the complaint clearly leads to a 
significant decrease in adverse disparate impacts, OCR's voluntary 
compliance measures will take that decrease into account, because it is 
unlikely the permit is solely responsible for the adverse disparate 
impacts.\131\ In general, OCR expects any alleged decrease in impact to 
be clearly evident and will likely involve the same types of pollutants 
and pathways that are alleged in the complaint. Generally, when 
determining whether the alleged discriminatory act increases, 
decreases, or does not affect the level of adverse impacts, OCR expects 
to evaluate the allowable release levels in the permit.
---------------------------------------------------------------------------

    \131\ See section VII.A.3. (discussion of voluntary compliance).
---------------------------------------------------------------------------

5. Characterize Populations and Conduct Comparisons
    Identify and determine the characteristics of the affected 
population, and conduct an analysis to determine whether a disparity 
exists between the affected population and an appropriate comparison 
population in terms of race, color, or national origin, and adverse 
impact. If there is no disparity, the allegation will not form the 
basis of a finding of non-compliance with EPA's Title VI regulations 
and will be closed.
    a. Identify and Characterize Affected Population: The first element 
of this step is to identify the affected population. The affected 
population is that which suffers the adverse impacts of the stressors 
from assessed sources. Depending on the allegations and facts in the 
case, various affected populations may be identified.\132\ The affected 
population may be categorized, for example, by likely risk or measure 
of impact above a threshold of adversity, or by the sources or pathways 
of the adverse impacts.
---------------------------------------------------------------------------

    \132\ This could occur when a complaint contains more than one 
allegation, and/or different populations may be disproportionately 
affected by different pollutants or exposure pathways.
---------------------------------------------------------------------------

    The impacts from permitted entities and other sources are not 
always distributed in a predictable and uniform manner. Therefore, the 
predicted degree of potential impacts could be associated with a 
possible receptor population in several ways. Based on Step 3's 
assessment, which predicted the magnitude (and in some cases, the 
geographic distribution) of stressor levels associated with adverse 
impacts, OCR expects to use mathematical models, when possible, to 
estimate the location and size of the affected populations. An area of 
adverse impacts may be irregularly shaped due to environmental factors 
or other conditions such as wind direction, stream direction, or 
topography. Likewise, depending upon the location of a plume or pathway 
of impact, the affected population may or may not include those people 
with residences in closest proximity to a source.
    However, simpler approaches based primarily on proximity may also 
be used where more detailed (e.g., modeled) estimates cannot be 
developed. The proximity analysis would reflect the environmental 
medium and impact of concern in the case. For example, for air 
releases, an inverse relationship with distance from a source could be 
used within a circle (i.e., the further away from a source, the less 
the potential degree of impact to a population). For surface water 
releases, the impact allocation might involve identifying downstream 
receptor populations. All of these approaches may incorporate the 
contribution of other sources of chemical stressors to assess potential 
cumulative impacts.
    The analysis would also attempt to determine the race, color, or 
national origin of the affected population(s). OCR intends to use 
available data and demographic analysis methods, such as the currently 
available U.S. Census information \133\ in geographic information 
systems (GIS) to describe the affected population. In conducting a 
typical analysis to determine an affected population, OCR would likely 
generate data estimating the race, color or national origin and density 
of populations within a certain proximity from a facility or within the 
geographic distribution pattern predicted by scientific models. OCR 
would expect to use the smallest geographic resolution feasible for the 
demographic data, such as census blocks, when conducting disparity 
assessments. OCR would expect to characterize the affected population 
for the permitted entity at issue, as well as those in other areas of 
estimated cumulative adverse impacts.
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    \133\ The most current geographically detailed Census 
information is from the 1990 U.S. Census. Information from the 2000 
U.S. Census will not be available until 2001.
---------------------------------------------------------------------------

    b. Comparison to Assess Disparity: The second element of this step 
involves a disparity analysis that compares the affected population to 
an appropriate comparison population to determine whether disparity 
exists that may violate EPA's Title VI regulations. OCR would consider 
the allegations and factors of each case, and would generally expect to 
draw relevant comparison populations from those who live within a 
reference area such as the recipient's jurisdiction (e.g., an air 
district, a state, an area of responsibility for a branch office), 
within a political jurisdiction (e.g., town, county, state), or an area 
defined by environmental criteria, such as an airshed or watershed. For 
example, where a complaint alleges that Asian Americans throughout a 
state bear adverse disparate impacts from permitted sources of water 
pollution, an appropriate reference area would likely be the state. 
Comparison populations would usually be larger than the affected 
population, and may include the general population for the reference 
area (e.g., a county or state population which includes the affected 
population) or the non-affected population for the reference area 
(e.g., those in the reference area who are not part of the affected 
population).
    A disparity may be assessed using comparisons both of the different 
prevalence of race, color, or national origin of the two populations, 
and of the level of risk of adverse impacts experienced by each 
population. Since there is no one formula or analysis to be applied, 
OCR intends to use appropriate comparisons to assess disparate impact 
depending on the facts and circumstances of the complaint.
    As part of OCR's assessment, it is expected that at least one and 
usually more of the following comparisons of demographic 
characteristics will be conducted:
     The demographic characteristics of an affected population 
to demographic characteristics of a non-affected population or general 
population; \134\
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    \134\ See, e.g., Draft Revised Demographic Information, Title VI 
Administrative Complaint re: Louisiana Department of Environmental 
Quality/Permit for Proposed Shintech Facility, April, 1998 (Shintech 
Demographic Information, April 1998), Facility Distribution Charts 
D1 through D40 found at http://www.epa.gov/civilrights/shinfileapr98.htm, files t-d01-10.pdf, t-d11-20.pdf, t-d21-30.pdf, 
t-d31-40.pdf.
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     The demographic characteristics of most likely affected 
(e.g., highest 5% of

[[Page 39682]]

risk or measure of adverse impact) to least likely affected (e.g., 
lowest 5%) \135\
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    \135\ These values approximate the outlying portions (sometimes 
called the ``tails'') of a distribution of risk that are beyond two 
standard deviations of the mean value.
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     The probability of different demographic groups (e.g., 
African Americans, Hispanics, Whites) in a surrounding jurisdiction 
being in an affected population or a highly affected portion of it; 
\136\
---------------------------------------------------------------------------

    \136\ 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-a1.pdf through table-b.7.pdf.
---------------------------------------------------------------------------

OCR also expects to compare the level of risk or measure of potential 
adverse impacts:
     The average risk or measure of adverse impact by 
demographic group within the general population or within an affected 
population; \137\ or
---------------------------------------------------------------------------

    \137\ See, e.g., Shintech Demographic Information, April 1998, 
last column in Tables C1 through C5 found at http://www.epa.gov/civilrights/shinfileapr98.htm, table-c1.pdf through table-c5.pdf.
---------------------------------------------------------------------------

     The range of risk or measure of adverse impact by 
demographic group within the general population or within an affected 
population.
6. Adverse Disparate Impact Decision
    Determine whether the disparity is significant. If it is not, the 
complaint will likely be closed.
    The final step of the analysis is to determine whether the 
disparities demonstrated by comparisons in Step 5 are significant under 
Title VI. OCR generally expects to review both the disparity in 
demographic characteristics and in levels of risk or other measure of 
potential impacts, in the context of the allegations identified in the 
complaint and investigation scope.
    In determining whether a disparity is significant, OCR generally 
expects to review several possible measures (described in the previous 
step), and take into account to what degree they are consistent. 
Moreover, the significance of a given level of disparity may vary 
depending upon the facts and circumstances of the complaint and 
comparison population at issue. Nevertheless, OCR intends to apply a 
few basic rules in assessing the significance of disparity.
    For instance, measures of the demographic disparity between an 
affected population and a comparison population would normally be 
statistically evaluated to determine whether the differences achieved 
statistical significance to at least 2 to 3 standard deviations. The 
purpose of this initial review is to minimize the chance of a false 
measurement of difference where none actually exists (e.g., because of 
an inherent variability of the data). OCR expects to work with 
statisticians to evaluate initial disparity calculations done by 
investigators.
    Initial assessments of disparity would thus be informed by expert 
opinion, and take into account other considerations such as 
uncertainties. For example, some time may have passed since the most 
recent Census, and residential population shifts may have occurred, 
resulting in uncertainties in demographic characterization. 
Uncertainties in adverse impact assessments might include the accuracy 
of predicted risk levels, and the applicability of these levels to 
potentially exposed populations (e.g., subsistence fish consumption 
patterns).
    OCR would also expect to evaluate the demographic disparity 
measures and their results in the context of several related factors 
such as:
     Affected population size;
     Overall demographic composition of the general comparison 
population (especially those with very low or very high proportions of 
particular subgroups); and
     The overall proportion of a jurisdiction's total 
population within an affected population.
    In evaluating disparity in adverse impacts, OCR would expect to 
also consider such factors as:
     The level of adverse impact (e.g., a little or a lot above 
a threshold of significance);
     The severity of the impact; and
     Its frequency of occurrence.
OCR expects to weigh carefully the potential uncertainties along with 
these factors in making the determination of whether an adverse 
disparate impact exists, and whether a finding of noncompliance with 
EPA's regulations is warranted. EPA generally would expect the risk or 
measure of potential adverse impact for affected and comparison 
populations to be similar under properly implemented programs, unless 
justification can be provided.
    A finding of an adverse disparate impact is most likely to occur 
where significant disparity is clearly evident in multiple measures of 
both risk or measure of adverse impact, and demographic 
characteristics, although in some instances results may not be clear. 
For example, where credible measures of both the demographic disparity 
and the disparity in rates of impact are at least a factor of 2 times 
higher in the affected population, OCR would generally expect to find 
disparate impact under Title VI. Similarly, in instances where the 
disparity of both demographic characteristics and impacts are 
relatively slight, a finding of disparate impact is somewhat less 
likely (e.g., in cases where both the disparity of impact and 
demographics are not statistically significant). Finally, where a large 
disparity exists in terms of impact and a relatively slight disparity 
exists with regard to demographics (or vice versa), EPA will ordinarily 
attempt to balance these factors, taking into account the particular 
circumstances of the case. For instance where a large disparity (e.g., 
a factor of 10 times higher) exists with regard to a significant 
adverse impact, OCR might find disparate impact even though the 
demographic disparity is relatively slight (e.g., under 20%).
    However, for both demographic disparity and disparity of impact, 
there is no fixed formula or analysis to be applied. The significance 
of a level of disparity may vary depending upon the facts and 
circumstances of the complaint, the analysis, and the comparison 
population. Given the wide variability in many of the underlying 
factors such as the proportion of racial subgroups in the general 
population,\138\ it is impossible to determine a single factor that 
could be applicable in all cases.
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    \138\ For example, state populations may be used as a basis for 
comparison with the affected population. Recent data show that the 
proportion of total ``minority'' populations (defined as other than 
white races together with white Hispanics) range from about 4% to 
50% of various state populations. In light of that variance, the 
adoption of a single level of disparity, such as a factor of 2, as 
the only indicator of significance, would lead to highly 
inconsistent results. If a complaint alleged discrimination against 
minorities, as defined above, in some states, a significant 
disparity would be presumed to exist if less than 10% of an affected 
population were minority, whereas in other states, the percentage 
would have to reach 100%.
---------------------------------------------------------------------------

VII. Determining Whether a Finding of Noncompliance is Warranted

    In order to find a recipient in violation of the discriminatory 
effects standard in EPA's Title VI implementing regulations, OCR would 
determine whether the recipient's programs or activities have resulted 
in an unjustified adverse disparate impact.\139\ In other words, OCR 
would assess whether the impact is both adverse and borne 
disproportionately by a group of persons based on race, color, or 
national origin,\140\ and, if so, whether that impact is 
justified.\141\ While assessing background sources of stressors 
contributing to alleged

[[Page 39683]]

discriminatory effects may be required to understand whether an adverse 
impact is created or exacerbated, in determining whether a recipient is 
in violation of Title VI or EPA's implementing regulations and the 
extent of any voluntary compliance measures, the Agency expects to 
account for the adverse disparate impacts resulting from sources of 
stressors, the stressors themselves, and/or impacts cognizable under 
the recipient's authority.\142\
---------------------------------------------------------------------------

    \139\ See 40 CFR 7.30, 7.35 (stating prohibitions against 
discrimination).
    \140\ See section VI (describing analysis for determining 
whether adverse disparate impact exists).
    \141\ See section VII.A. (discussing justification).
    \142\ See section VI.B.2. (discussing defining the scope of an 
investigation).
---------------------------------------------------------------------------

    OCR also expects to base a preliminary finding of noncompliance on 
the results of the adverse disparate impact analysis, and any 
information submitted by the complainant or recipient, and any defenses 
presented by the recipient during the investigation. Within 50 calendar 
days of OCR's preliminary findings, the recipient may:
    (1) Submit a written response demonstrating that the preliminary 
findings are incorrect;
    (2) Agree to OCR's recommendations for voluntary compliance; or
    (3) Argue that compliance may be achieved through steps other than 
those recommended by OCR.\143\
---------------------------------------------------------------------------

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

    If the recipient does not take one of these actions, EPA's Title VI 
regulations require OCR to send a formal written determination of 
noncompliance to the recipient, the Award Official, and the Assistant 
Attorney General.\144\ If the recipient does not voluntarily comply 
within 10 calendar days of receipt of the formal determination of 
noncompliance, OCR must start proceedings to deny, annul, suspend, or 
terminate EPA assistance.\145\ Recognizing that elimination of adverse 
disparate impacts within 10 days may not be achievable; therefore, OCR 
may postpone proceedings to deny, annul, suspend, or terminate EPA 
assistance, if the recipient has demonstrated a good faith effort 
(e.g., signed a voluntary compliance agreement) to come into 
compliance.
---------------------------------------------------------------------------

    \144\ 40 CFR 7.115(d).
    \145\ 40 CFR 7.115(e), 7.130(b).
---------------------------------------------------------------------------

A. Justification

    The recipient will have the opportunity to ``justify'' the decision 
to issue the permit notwithstanding the adverse disparate impact, based 
on a substantial, legitimate justification.\146\ The recipient may 
offer its justification following its receipt of the notice of 
complaint,\147\ or after a preliminary finding of non-compliance with 
Title VI or EPA's implementing regulations.\148\
---------------------------------------------------------------------------

    \146\ In some circumstances, recipients may justify adverse 
disparate impacts under Title VI as described in the text. This 
guidance, however, does not concern justifications for any 
violations of environmental law.
    \147\ 40 CFR 7.120(d)(1)(ii).
    \148\ 40 CFR 7.115(d)(2).
---------------------------------------------------------------------------

1. Types of Justification
    Determining what constitutes an acceptable justification will 
necessarily be based on the facts of the case. Generally, the recipient 
would attempt to show that the challenged activity is reasonably 
necessary to meet a goal that is legitimate, important, and integral to 
the recipient's institutional mission.\149\ For example, because 
recipients are environmental permitting agencies, OCR expects to 
consider provision of public health or environmental benefits (e.g., 
waste water treatment plant) to the affected population from the 
permitting action to be an acceptable justification because such 
benefits are generally legitimate, important, and integral to the 
recipient's mission.
---------------------------------------------------------------------------

    \149\ See Donnelly v. Rhode Island Bd. of Governors for Higher 
Educ., 929 F. Supp. 583, 593 (D.R.I. 1996), aff'd on other grounds, 
110 F.3d 2 (1st Cir. 1997); Elston v. Talladega County Bd. of Educ., 
997 F.2d 1394, 1412-13 (11th Cir. 1993); see also NAACP v. Medical 
Center, Inc., 657 F.2d 1322, 1328 (3d Cir. 1981).
---------------------------------------------------------------------------

    In addition, OCR would also likely consider broader interests, such 
as economic development, from the permitting action to be an acceptable 
justification, if the benefits are delivered directly to the affected 
population and if the broader interest is legitimate, important, and 
integral to the recipient's mission. OCR will generally consider not 
only the recipient's perspective, but the views of the affected 
community in its assessment of whether the permitted facility, in fact, 
will provide direct, economic benefits to the community. However, a 
justification may be rebutted if EPA determines that a less 
discriminatory alternative exists, as discussed below.
2. Less Discriminatory Alternatives
    Courts have defined the term ``less discriminatory alternative'' to 
be an approach that causes less disparate impact than the challenged 
practice, but is practicable and comparably effective in meeting the 
needs addressed by the challenged practice.\150\ OCR will likely 
consider cost and technical feasibility in its assessment of the 
practicability of potential alternatives. Practicable mitigation 
measures \151\ associated with the permitting action could be 
considered as less discriminatory alternatives, including, in some 
cases, modifying permit conditions to lessen or eliminate the 
demonstrated adverse disparate impacts.
---------------------------------------------------------------------------

    \150\ See Georgia State Conference of Branches of NAACP v. 
Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Elston, 997 F.2d at 
1413.
    \151\ For further discussion of potential measures that may 
reduce or eliminate adverse disparate impacts, see section IV.B.
---------------------------------------------------------------------------

3. Voluntary Compliance
    OCR expects to explore a range of possible options to achieve 
voluntary compliance. Narrowly focused approaches to eliminate or 
reduce unjustified adverse disparate impacts might deal solely with the 
permitted activities that triggered a complaint. More broadly focused 
remedial efforts might deal with the combined impacts of several 
contributing sources, taking into account their approximate relative 
contributions. The Agency expects to account for the adverse disparate 
impacts resulting from factors within the recipient's authority.\152\ 
In addition, the approaches explored may be assessed with respect to 
implementation considerations such as cost and technical feasibility.
---------------------------------------------------------------------------

    \152\ See section VI.B.2.a. (discussing the scope of recipient's 
authority).
---------------------------------------------------------------------------

    As previously mentioned, it is expected that denial or revocation 
of a permit is not necessarily an appropriate solution, because it is 
unlikely that a particular permit is solely responsible for the adverse 
disparate impacts. Also in some circumstances, such as where OCR's 
investigation shows that the permit action identified in the complaint 
clearly leads to a significant decrease in adverse disparate impacts, 
OCR will likely recommended voluntary compliance measures that take 
this decrease into account. OCR will likely recommend that the 
recipient focus on other permitted entities and other sources within 
their authority to eliminate or reduce, to the extent required by Title 
VI, the adverse disparate impacts of their programs or activities.

B. Hearing/Appeal Process

    If compliance with EPA's Title VI regulations cannot be achieved by 
informal resolution or voluntary compliance, OCR must make a finding of 
noncompliance.\153\ Within 30 days of receipt of the formal finding of 
noncompliance, the recipient must file a written answer and may request 
a hearing before an EPA ALJ.\154\ If the recipient does not request a 
hearing, it shall be deemed to have waived its right to a hearing, and 
OCR's finding will be deemed to be the ALJ's

[[Page 39684]]

determination.\155\ Following receipt of the ALJ's determination, the 
recipient may, within 30 days, file its exceptions to that 
determination with the Administrator.\156\ The Administrator may, 
within 45 days after the ALJ's determination, serve notice that she 
will review the determination.\157\ If the recipient does not file 
exceptions or if the Administrator does not provide notice of review, 
the ALJ's determination constitutes the Administrator's final 
decision.\158\ If the Administrator reviews the determination, all 
parties will be given reasonable opportunity to file written 
statements.\159\ Subsequently, if the Administrator's decides to deny 
an application, or annul, suspend, or terminate EPA assistance, that 
decision becomes effective 30 days after the Administrator submits a 
written report to Congress.\160\
---------------------------------------------------------------------------

    \153\ 40 CFR 7.115(e); 7.130(b)(1).
    \154\ 40 CFR 7.130(b)(2)(i), (ii).
    \155\ 40 CFR 7.130(b)(2)(ii).
    \156\ 40 CFR 7.130(b)(3)(i).
    \157\ Id.
    \158\ Id.
    \159\ 40 CFR 7.130(b)(3)(ii).
    \160\ 40 CFR 7.130(b)(3)(iii).
---------------------------------------------------------------------------

Appendix A: Glossary of Terms

    The definitions provided in this glossary only apply to the 
Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs and the Draft Revised Guidance for 
Investigating Title VI Administrative Complaints Challenging 
Permits, unless a direct citation to the Code of Federal Regulations 
(CFR) is provided. Please note that italicized words are ones for 
which definitions are available in this glossary.

------------------------------------------------------------------------
               Term                              Definition
------------------------------------------------------------------------
Accuracy..........................  The measure of the correctness of
                                     data, as given by the difference
                                     between the measured value and the
                                     true or standard value.
Adverse Impact....................  A negative impact that is determined
                                     by EPA to be significant, based on
                                     comparisons with benchmarks of
                                     significance. These benchmarks may
                                     be based on law, policy, or
                                     science.
Affected Population...............  A population that is determined to
                                     bear an adverse impact from the
                                     source(s) at issue.
Ambient Standards.................  A level of pollutants prescribed by
                                     regulations that are not to be
                                     exceeded during a given time in a
                                     defined area. (e.g., National
                                     Ambient Air Quality Standards.)
Ambient...........................  Any unconfined portion of a water
                                     body, land area, or the atmosphere,
                                     such as the open air or the
                                     environment surrounding a source.
Attainment Area...................  An area considered to have air
                                     quality as good as or better than
                                     the national ambient air quality
                                     standards as defined in the Clean
                                     Air Act. An area may be an
                                     attainment area for one pollutant
                                     and a non-attainment area for
                                     others. (See also non-attainment
                                     area.)
Benchmark.........................  A value used as a standard for
                                     comparison. Several types used in
                                     Title VI investigations include
                                     benchmarks of exposure level, risk,
                                     and significance. (See also RfC,
                                     RfD, threshold.)
Brownfields.......................  Abandoned, idled, or under-used
                                     industrial and commercial
                                     facilities/sites where expansion or
                                     redevelopment is complicated by
                                     real or perceived environmental
                                     contamination. They can be in
                                     urban, suburban, or rural areas.
Carcinogen........................  A chemical or other stressor capable
                                     of inducing a cancer response.
Chronic Toxicity..................  The capacity of a substance to cause
                                     long-term harmful health effects.
Comparison Population.............  A population selected for comparison
                                     with an affected population in
                                     determining whether the affected
                                     population is significantly
                                     different with respect to
                                     demographic characteristics or
                                     degree of adverse impact.
Criteria Pollutants...............  The 1970 Clean Air Act (CAA)
                                     required EPA to set National
                                     Ambient Air Quality Standards for
                                     certain pollutants known to be
                                     hazardous to human health. EPA has
                                     identified and set standards to
                                     protect human health and welfare
                                     for six pollutants: ozone, carbon
                                     monoxide, particulate matter,
                                     sulfur dioxide, lead, and nitrogen
                                     oxide. The term, ``criteria
                                     pollutants'' derives from the
                                     requirement that EPA must describe
                                     the characteristics and potential
                                     health and welfare effects of these
                                     pollutants in ``criteria.'' See CAA
                                     section 108.
Cumulative Exposure...............  Total exposure to multiple
                                     environmental stressors (e.g.,
                                     chemicals), including exposures
                                     originating from multiple sources,
                                     and traveling via multiple pathways
                                     over a period of time.
Cumulative Impact.................  The harmful health or other effects
                                     resulting from cumulative exposure.
Disparity (Disparate Impact)......  A measurement of a degree of
                                     difference between population
                                     groups for the purpose of making a
                                     finding under Title VI. Disparities
                                     may be measured in terms of the
                                     respective composition
                                     (demographics) of the groups, and
                                     in terms of the respective
                                     potential level of exposure, risk
                                     or other measure of adverse impact.
Due Weight........................  The importance or reliance EPA gives
                                     to evidence or agreements to reduce
                                     impacts provided by recipients or
                                     complainants, depending on a review
                                     of relevance, scientific validity,
                                     completeness, consistency, and
                                     uncertainties. Where evidence or
                                     agreements prove to be technically
                                     satisfactory, OCR may rely upon
                                     that information rather than
                                     attempting to duplicate the
                                     analysis.
Environmental Council of States     The Environmental Council of States
 (ECOS).                             (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.

[[Page 39685]]

 
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         An organized computer system
 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 established by EPA
 Standards (NAAQS).                  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.

[[Page 39686]]

 
RfC (inhalation reference           An estimate (with uncertainty
 concentration).                     spanning perhaps an order of
                                     magnitude) of the daily exposure of
                                     the human population to a chemical,
                                     through inhalation, that is likely
                                     to be without risk of harmful
                                     effects during a lifetime.
RfD (oral reference dose).........  An estimate (with uncertainty
                                     spanning perhaps an order of
                                     magnitude) of the daily exposure of
                                     the human population to a chemical,
                                     through ingestion, that is likely
                                     to be without risk of harmful
                                     effects during a lifetime.
Risk..............................  A measure of the probability that
                                     damage to life, health, property,
                                     and/or the environment will occur
                                     as a result of a given hazard. In
                                     quantitative terms, risk is often
                                     expressed in values ranging from
                                     zero (representing the certainty
                                     that harm will not occur) to one
                                     (representing the certainty that
                                     harm will occur). The following are
                                     examples showing the manner in
                                     which cancer risk is expressed: E-
                                     4=1 in 10-4, or a risk of 1 in
                                     10,000; E-5=a risk of 1/100,000; E-
                                     6=a risk of 1/1,000,000. Similarly,
                                     1.3E-3=a risk of 1.3/1000=1 chance
                                     in 770.
Risk Assessment...................  Qualitative and quantitative
                                     evaluation of the risk posed to
                                     human health and/or the environment
                                     by the actual or potential presence
                                     and/or use of specific stressors.
                                     This involves a determination of
                                     the kind and degree of hazard posed
                                     by a stressor (e.g., toxicity), the
                                     extent to which a particular group
                                     of people has been or may be
                                     exposed to the agent, and the
                                     present or potential health risk
                                     that exists due to the agent.
Science Advisory Board (SAB)......  A group of external scientists who
                                     advise EPA on science and policy.
Significant.......................  A determination that an observed
                                     value is sufficiently large and
                                     meaningful to warrant some action.
                                     (See statistical significance).
Source............................  The site, facility, or origin from
                                     which one or more environmental
                                     stressors originate (e.g., factory,
                                     incinerator, landfill, storage
                                     tank, field, vehicle).
Statistical significance..........  An inference that there is a low
                                     probability that the observed
                                     difference in measured or estimated
                                     quantities is due to variability in
                                     the measurement technique, rather
                                     than due to an actual difference in
                                     the quantities themselves.
Stressor..........................  Any factor that may adversely affect
                                     receptors, including chemical
                                     (e.g., criteria pollutants, toxic
                                     contaminants), physical (e.g.,
                                     noise, extreme temperatures, fire)
                                     and biological (e.g., disease
                                     pathogens or parasites). Generally,
                                     any substance introduced into the
                                     environment that adversely affects
                                     the health of humans, animals, or
                                     ecosystems. Airborne stressors may
                                     fall into two main groups: (1)
                                     Those emitted directly from
                                     identifiable sources and (2) those
                                     produced in the air by interaction
                                     between chemicals (e.g., most
                                     ozone).
Threshold.........................  The dose or exposure level below
                                     which an adverse impact is not
                                     expected. Most carcinogens are
                                     thought to be non-threshold
                                     chemicals, to which no exposure can
                                     be presumed to be without some risk
                                     of contracting the disease.
Toxicity..........................  The degree to which a substance or
                                     mixture of substances can harm
                                     humans or animals. (See chronic
                                     toxicity).
Unit risk factor..................  A measure of the power of a toxic
                                     stressor to cause cancer at various
                                     levels of exposure (based on the
                                     slope of a dose-response curve,
                                     combined with an exposure
                                     scenario).
Universe of Sources...............  A category of relevant and/or nearby
                                     sources of similar stressors to
                                     those from the permitted activity
                                     included in assessments of
                                     potential adverse disparate
                                     impacts.
Voluntary Compliance..............  Settlement between EPA and a
                                     recipient after a formal finding of
                                     noncompliance.
------------------------------------------------------------------------

BILLING CODE 6560-50-P

[[Page 39687]]

[GRAPHIC] [TIFF OMITTED] TN27JN00.000

BILLING CODE 6560-50-C

[[Page 39688]]

D. Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance

    This document summarizes and addresses the key issues raised in 
comments received by the U.S. Environmental Protection Agency (EPA) 
concerning the February 4, 1998, Interim Guidance for Investigating 
Title VI Administrative Complaints Challenging Permits (Interim 
Guidance). These key issues were raised in a number of forums, 
including the over 120 written comments received on the Interim 
Guidance, meetings with a number of stakeholder representatives over 
the past two years, the meetings of the Title VI Implementation 
Advisory Committee of the National Advisory Council for 
Environmental Policy and Technology (Title VI Implementation 
Advisory Committee), a facilitated meeting with a variety of 
stakeholders on draft options under consideration for inclusion in 
the revised investigation guidance, and the internal EPA and 
Department of Justice review processes.
    This summary explains how the Draft Revised Guidance for 
Investigating Title VI Administrative Complaints Challenging Permits 
(Draft Revised Investigation Guidance) and the Draft Title VI 
Guidance for EPA Assistance Recipients Administering Environmental 
Permitting Programs (Draft Recipient Guidance), which are being 
published in the Federal Register concurrently with this document, 
deal with the key issues raised. This summary should not be read 
without also considering the two draft guidance documents.
    The statements in this document are intended solely as guidance. 
This document is not intended, nor can it be relied upon, to create 
any rights or obligations enforceable by any party in litigation. 
EPA may decide to follow the guidance provided in this document, or 
to act at variance with the guidance, based on its analysis of the 
specific facts presented. This guidance may be revised to reflect 
changes in EPA's approach to implementing Title VI. In addition, 
this guidance does not alter in any way, a regulated entity's 
obligation to comply with applicable environmental laws.

General Issues

Stakeholder Input

    A number of commenters raised questions about the stakeholder 
input process for the Interim Guidance and the Draft Revised 
Investigation Guidance.
    Response: Issuance of the Interim Guidance opened a continuing 
dialogue with stakeholders that helped to shape the Agency's Draft 
Revised Investigation Guidance. EPA provided a 90-day comment period 
on the Interim Guidance during which time more than 120 commenters 
representing a broad range of interested parties provided written 
comments. The Title VI Implementation Advisory Committee, with 
representatives from environmental justice organizations, community 
groups, state and local governments, businesses, and academia, also 
provided input about the Interim Guidance. In addition, over the 
past two years, EPA staff have met with other representatives from 
those groups to discuss their concerns about environmental justice 
and Title VI issues. Furthermore, in September 1999, EPA held three 
sessions with representatives of various stakeholder groups to 
discuss policy options the Agency was considering as it revised the 
Interim Guidance. (A current list of scheduled outreach meetings is 
posted on EPA's Office of Civil Rights' (OCR) Web site at 
www.epa.gov/civilrights).
    Based upon that input and on experience gained from processing 
and investigating complaints during the intervening months, EPA 
developed the Draft Revised Investigation Guidance. In today's 
Federal Register document, EPA has established a 60-day public 
comment period on both the Draft Revised Investigation Guidance and 
the Draft Recipient Guidance. During the public comment period, EPA 
will host five public listening sessions at EPA headquarters and 
regional offices. Details regarding the listening sessions are 
provided in the Public Comment Period section of this notice. 
Additionally, EPA staff will meet with various stakeholder groups 
during the public comment period to listen to their comments.

EPA's Authority To Issue Guidance

    A number of commenters raised concerns about EPA's authority to 
issue the Interim Guidance, including one who stated that EPA's 
regulatory authorities under Title VI extend only to prohibiting 
cases of intentional discrimination and not to prohibiting instances 
of discriminatory effects. The commenter asserted that the Supreme 
Court has held that the Fourteenth Amendment to the U.S. 
Constitution prohibits only intentional discrimination, and not 
instances of discriminatory effects. Likewise, the commenter 
claimed, the Supreme Court held that the authority granted under 
Title VI extends no further than the Fourteenth Amendment, and 
therefore does not prohibit discriminatory effects. A further 
commenter stated that a Supreme Court decision invalidated EPA's 
Title VI regulations.
    Response: Title VI itself prohibits intentional 
discrimination.\161\ To find intentional discrimination, it must be 
proven that ``a challenged action was motivated by an intent to 
discriminate.'' \162\ This standard requires a showing that the 
recipient was aware of the complainant's race, color, or national 
origin, and that the recipient acted, at least in part, because of 
the complainant's race, color, or national origin.\163\ Evidence of 
discriminatory intent may be direct or circumstantial.\164\
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    \161\ Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 589 
(1983).
    \162\ Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 
1406 (11th Cir. 1993).
    \163\ See Civil Rights Division, U.S. Department of Justice, 
Title VI Legal Manual 48-53 (Sept. 1998).
    \164\ Id.
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    In addition, the Supreme Court has stated that Title VI 
authorizes agencies to adopt implementing regulations that also 
prohibit discriminatory effects.\165\ This is often referred to as 
reaching actions that have an unjustified disparate impact. In July 
1994, the Attorney General issued a memorandum to the heads of all 
Federal agencies with Title VI responsibilities stating that 
``[e]nforcement of the disparate impact provisions is an essential 
component of an effective civil rights compliance program.'' \166\ 
The Attorney General directed the head of each Federal agency ``to 
make certain that Title VI is not violated, [and] ensure that the 
disparate impact provisions in [the Title VI] regulations are fully 
utilized.'' \167\
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    \165\ See Alexander v. Choate, 469 U.S. 287, 292-94 (1985); 
Guardians Ass'n, 463 U.S. at, 584 n.2 (White, J.); id. at 623 n.15 
(Marshall, J.); id. at 642-45 (Stevens, Brennan, Blackmun, JJ.).
    \166\ See Memorandum from Janet Reno, Attorney General, to Heads 
of Departments and Agencies that Provide Federal Financial 
Assistance 1 (July 14, 1994) (titled The Use of the Disparate Impact 
Standard in Administrative Regulations Under Title VI of the Civil 
Rights Act of 1964).
    \167\ Id.
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    Congress intended that its policy against discrimination by 
recipients of Federal assistance be implemented, in part, through 
administrative rulemaking.\168\ Federal agencies were directed to 
promulgate standards in the form of rules, regulations, and orders, 
governing the administration of Title VI.\169\ Title VI ``delegated 
to the agencies in the first instance the complex determination of 
what sorts of disparate impacts upon minorities constituted 
sufficiently significant social problems, and were readily enough 
remediable, to warrant altering the practices of the federal 
grantees that had produced those impacts.'' \170\ EPA promulgated 
regulations that implement Title VI in 1973 and revised those 
regulations in 1984.\171\
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    \168\ 42 U.S.C. 2000d-1.
    \169\ Id.
    \170\ Alexander, 469 U.S. at 293-94; see also Charles F. 
Abernathy, Title VI and the Constitution: A Regulatory Model for 
Defining Discrimination, 70 Geo. L.J. 1, 32 (1981) (concluding that 
Congress intended ot confer wide discretion on agencies by giving 
them rule making authority).
    \171\ 38 FR 17968 (1973), as amended by 49 FR 1656 (1984) 
(codified at 40 CFR part 7).
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    EPA's regulations implementing Title VI adopt a discriminatory 
effects standard and expressly provide that:

    A recipient shall not use criteria or methods of administering 
its programs which have the effect of subjecting individuals to 
discrimination because of their race, color, [or] national origin * 
* * or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program with respect to 
individuals of a particular race, color, [or] national origin * * 
*.\172\

    \172\ 40 CFR 7.35(b) (emphasis added).
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    Frequently, discrimination results from policies and practices that 
are neutral on their face, but have the effect of discriminating. 
Facially neutral policies and practices that result in discriminatory 
effects violate EPA's Title VI regulations, unless it is shown that 
they are legitimately justified and there is no less discriminatory 
alternative.\173\
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    \173\ See Memorandum from Attorney General, supra note 7, at 1-
2.

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[[Page 39689]]

    In enacting Title VI, Congress relied on the Fifth and Fourteenth 
Amendments to the Constitution, which guarantee due process and equal 
protection under laws.\174\ In addition, Congress relied on its 
authority under the spending clause of the Constitution,\175\ rather 
than its authority under the commerce clause.\176\ Title VI was not 
intended to serve as a regulatory measure over state and local 
activities, rather, it allows the Federal government to require 
compliance with Title VI as a condition of receiving assistance. ``No 
recipient [was] required to accept Federal aid. If he [did] so 
voluntarily, he must take it on the conditions on which it [was] 
offered. \177\ EPA is unaware of any case law that overturned the 
Supreme Court's decision and invalidated Federal agencies' Title VI 
implementing regulations.
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    \174\ For a further discussion of the legislative history of 
Title VI, see U.S. commission on Civil Rights, Federal Title VI 
Enforcement to Ensure Nondiscrimination in Federally Assisted 
Programs 25-30 (June 1996).
    \175\ U.S. Const., art. I, section 8, cl. 1.
    \176\ U.S. Const., art. I, section 8, cl. 3.
    \177\ 110 Cong. Rec. S6546 (1964) (statement of Sen. Humphrey).
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Interplay Between Guidance and Executive Order 12898
    A number of commenters argued that EPA incorrectly relied on 
Executive Order 12898, ``Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' as 
authority to issue the Interim Guidance.
    Response: EPA did not rely on Executive Order 12898 \178\ to 
provide authority for issuing the Interim Guidance. EPA relied on Title 
VI itself. Title VI ``delegated to the agencies in the first instance 
the complex determination of what sorts of disparate impacts upon 
minorities constituted significant social problems, and were readily 
enough remediable, to warrant altering the practices of the Federal 
grantees that had produced those impacts.'' \179\ In addition, the 
Department of Justice (DOJ), which is charged with coordinating the 
Federal government's Title VI work,\180\ issued regulations that 
provide, in part, that ``Federal agencies shall publish Title VI 
guidelines for each type of program to which they extend financial 
assistance.'' \181\ Further, Executive Order 12250, which directed the 
Attorney General to coordinate the implementation and enforcement of 
Title VI by Federal agencies, also requires agencies to issue 
appropriate implementing directives either in the form of policy 
guidance or regulations that are consistent with requirements 
proscribed by the Attorney General.\182\ Pursuant to that authority, 
EPA issued the Interim Guidance, and is now issuing the Draft Revised 
Investigation Guidance and the Draft Recipient Guidance.
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    \178\ Executive Order 12898, 59 FR 7629 (1994). Executive Order 
12898, in part, directs Federal agencies to ensure that Federal 
actions substantially affecting human health or the environment do 
not have discriminatory effects based on race, color, or national 
origin.
    \179\ Alexander v. Choate, 469 U.S. 287, 292-94 (1985); see also 
Charles F. Abernathy, Title VI and the Constitution: A Regulatory 
Model for Defining Discrimination, 70 Geo. L.J. 1, 32 (1981) 
(concluding that Congress intended to confer wide discretion on 
agencies by giving them rule making authority).
    \180\ Executive Order 12250, 45 FR 72995 (1980).
    \181\ 28 CFR 42.404(a).
    \182\ Executive Order 12250, section1-402.
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Consistency With EPA's Title VI Regulations
    Some commenters thought that the Interim Guidance was inconsistent 
with EPA's existing Title VI regulations at 40 CFR part 7.
    Response: The Interim Guidance and the Draft Revised Investigation 
Guidance are both consistent with EPA's Title VI implementing 
regulations. The Interim Guidance, however, did not mention all of the 
elements of the investigative process described in the regulations 
because it only focused on certain elements of that process. As a 
result, some commenters may have had the mistaken impression that OCR 
did not intend to conform its investigations to the regulations. In 
order to remedy that problem, the Draft Revised Investigation Guidance 
makes clear that OCR will conform its investigations to EPA Title VI 
regulations and it includes a complete discussion of the regulations' 
complaint handling procedures, including the 30-day opportunity for 
recipients to respond to the allegations, as specified in 40 CFR 
7.120(d)(iii). In addition, the Draft Revised Investigation Guidance 
eliminates the initial finding of disparate impact, which was included 
in the Interim Guidance primarily to promote informal resolution before 
a preliminary finding of noncompliance.
Interim Guidance and Notice-and-Comment Rulemaking
    Some commenters argued that the Interim Guidance constitutes a rule 
and should have been issued pursuant to the Administrative Procedure 
Act and the requirements of the Small Business Regulatory Enforcement 
Fairness Act.
    Response: OCR only intends the Interim Guidance and the Draft 
Revised Investigation Guidance to provide a framework for the 
processing of complaints filed under Title VI. The draft guidance 
documents update the Agency's procedural and policy framework to 
accommodate the increasing number of Title VI complaints that allege 
discrimination in the environmental permitting context. Neither creates 
any new substantive rights nor establishes any binding legal 
requirements. Accordingly, both the Interim Guidance and the Draft 
Revised Investigation Guidance are expressly exempted from the notice-
and-comment rulemaking requirements of the Administrative Procedure Act 
by section 553(b)(A).\183\ Nonetheless, EPA is publishing the Draft 
Revised Investigation Guidance in the Federal Register and on EPA's Web 
site to solicit written public comment, and EPA will also hold a series 
of public listening sessions to obtain additional feedback.
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    \183\ 5 U.S.C. 553(b)(A) (``Except when notice or hearing is 
required by statute, this subsection does not apply * * * to 
interpretive rules, general statements of policy, or rules of agency 
organization, procedure, or practice.'').
---------------------------------------------------------------------------

    With respect to impacts on small entities, including small 
businesses, because the Interim Guidance did not, and the Draft Revised 
Investigation Guidance will not, establish any binding legal 
requirements, there is no regulatory impact to any entity of any size. 
The analytical requirements of the Regulatory Flexibility Act, as 
amended by the Small Business Regulatory Enforcement Fairness Act, only 
apply to certain regulations that impose an impact on those small 
entities directly regulated by a proposed or final regulation.\184\ 
That is not the case here.
---------------------------------------------------------------------------

    \184\ Motor & Equip. Mfg. Ass'n v. Nichols, 142 F.3d 449 (D.C. 
Cir. 1998); Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327 (D.C. 
Cir. 1985).
---------------------------------------------------------------------------

Scope and Applicability of the Guidance and Permit Modifications
    EPA received comments regarding the scope of activities that the 
Interim Guidance is intended to address. Some felt that it should 
address a broader range of activities, such as allegations regarding 
discriminatory enforcement or discrimination in public participation 
processes. Other commenters felt that it should be narrowed by limiting 
its applicability to only new permits. EPA received numerous comments 
about permit modifications, some of which suggested that modifications 
should be covered by the guidance, and others of which suggested that 
all or some modifications should be excluded.
    Response: In order to maximize the use of its limited resources, 
OCR felt

[[Page 39690]]

that it should focus the Interim Guidance and the Draft Revised 
Investigation Guidance on environmental permitting because the majority 
of Title VI complaints filed with EPA allege discrimination associated 
with the issuance of environmental permits. Also, most of the 
complaints to date have made allegations of discriminatory effects; 
however, Title VI complaints may also allege discriminatory intent. The 
focus of the Draft Revised Investigation Guidance is on the more common 
effects allegations, rather than investigating allegations of 
discriminatory intent. Discriminatory intent complaints generally will 
be investigated by OCR under Title VI, EPA's Title VI regulations, and 
applicable intentional discrimination case law. EPA intends to issue 
guidance on other applications of Title VI, as appropriate, in the 
future.
    Under the Draft Revised Investigation Guidance, OCR expects that 
any type of permit actions, including new permits, renewals, and 
modifications, could form the basis for an investigation if the permit 
allows existing levels of alleged adverse disparate impacts to continue 
unchanged or causes an increase (e.g., landfill capacity doubled).\185\ 
For all types of permits, the mere filing of a Title VI complaint, 
whether or not accepted by OCR for investigation, will not stay or 
reverse the permitting action.
---------------------------------------------------------------------------

    \185\ See Draft Revised Investigation Guidance, section 
VI.B.1.a.
---------------------------------------------------------------------------

    The Draft Revised Investigation Guidance states that permit 
modifications that are merely administrative, such as a facility name 
change, and that do not involve actions related to the impacts 
identified in the complaint, are not likely to form the basis for an 
investigation. If this were the case, OCR would likely close the 
complaint investigation.\186\
---------------------------------------------------------------------------

    \186\ Id.
---------------------------------------------------------------------------

    The Draft Revised Investigation Guidance addresses permits that 
either result in decreases in emissions or decreases in adverse 
disparate impacts. OCR will likely not initiate an investigation of 
complaints alleging discriminatory effects from emissions, including 
cumulative emissions, where the permit action that triggered the 
complaint significantly decreases overall emissions \187\ at the 
facility. In addition, OCR would not initiate an investigation of 
allegations alleging discriminatory effects from emissions, including 
cumulative emissions of pollutants or stressors of concern named in the 
complaint where the permit action that triggered the complaint 
significantly decreases all named pollutants of concern or all the 
pollutants OCR reasonably infers are the potential source of the 
alleged impact. Recipients should demonstrate \188\ (not merely assert) 
that the decrease is actual and is significant.
---------------------------------------------------------------------------

    \187\ Assessing a significant overall decrease would entail 
taking into account factors such as total quantity and relative 
toxicity of the emissions reductions.
    \188\ A recipient may use actual monitoring data, reasonable 
estimates, permit limits, parametric monitoring, or any other 
reliabale means to demonstrate the decrease to the satisfaction of 
EPA.
---------------------------------------------------------------------------

    If an investigation is conducted and OCR determines that the permit 
that triggered the complaint clearly leads to a significant decrease in 
adverse disparate impacts, then any voluntary compliance measures 
required by OCR take that decrease into account, because it is unlikely 
that particular permit is solely responsible for the adverse disparate 
impacts. While a specific complaint may be dismissed on the basis of a 
decrease, OCR may choose to conduct a compliance review of the 
recipient's relevant permit program either at that point in time or at 
some future date. (40 CFR 7.110 and 7.115). The analysis of whether 
discriminatory effects result from cumulative emissions, and any 
resulting remedy, would include consideration of the emissions from the 
permit actions that triggered the original complaint (i.e., the one 
that resulted in the decrease).
Federally Recognized Indian Tribes
    One commenter asserted that Tribes should not be excluded from the 
Interim Guidance because they too receive Federal funds.
    Response: The Draft Revised Investigation Guidance does not address 
complaints against EPA recipients that are Federally-recognized Indian 
tribes. That subject will be addresses by EPA in separate guidance 
because the applicability of Title VI to Federally-recognized tribes 
involves unique issues of Federal Indian law. EPA recently concluded a 
consultation with Federally-recognized tribes and now plans to address 
the issue in collaboration with DOJ.
Application of Title VI and the Interim Guidance to EPA Permitting 
Actions
    Several comments concerned whether Title VI and the Interim 
Guidance applied to EPA.
    Response: EPA is committed to a policy of nondiscrimination in its 
own permitting programs. The equal protection guarantee in the Due 
Process Clause of the U. S. Constitution prohibits the Federal 
government from engaging in intentional discrimination.\189\ Moreover, 
section 2-2 of Executive Order 12898 \190\ is designed to ensure that 
Federal actions substantially affecting human health or the environment 
do not have discriminatory effects based on race, color, or national 
origin. However, Title VI is inapplicable to EPA actions, including 
EPA's issuance of permits, because it only applies to recipients of 
Federal financial assistance, not to Federal agencies. The statute 
clearly defines ``program or activity'' to exclude Federal 
agencies.\191\
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    \189\ U.S. Const. amend. V; see also Washington v. Davis, 426 
U.S. 229, 239 (1976).
    \190\ Section 2-2 provides: Each Federal agency shall conduct 
its programs, policies, and activities that substantially affect 
human health or the environment, in a manner that ensures that such 
programs, policies, and activities do not have the effect of 
excluding persons (including populations) from participation in, 
denying persons (including populations) the benefits of, or 
subjecting persons (including populations) to discrimination under, 
such programs, policies, and activities, because of their race, 
color, or national origin.
    Executive Order 12898, 59 FR 7629 (1994).
    \191\ 42 U.S.C. 2000d-4a. See also Soberal-Perez v. Heckler, 717 
F.2d 36, 38 (2d Cir. 1983) (``[Title VI] was meant to cover only 
those situations where federal funding is given to a non-federal 
entity which, in turn, provides financial assistance to the ultimate 
beneficiary.''); Williams v. Glickman, 936 F. Supp. 1, 5 (D.D.C 
1996) (``Title VI does not apply to the programs conducted directly 
by federal agencies.'').
---------------------------------------------------------------------------

Consistency With State Permitting Procedures
    A number of commenters suggested that the Interim Guidance was not 
fully consistent with state permitting procedures, and therefore 
inappropriate because it requires actions that may go beyond the 
authority provided in existing statutes and regulations.
    Response: The Interim Guidance was issued to implement Title VI of 
the Civil Rights Act of 1964. It was not intended to implement 
environmental law. EPA believes that compliance with environmental laws 
does not constitute per se compliance with Title VI. Frequently, 
discrimination results from policies and practices that are neutral on 
their face, but have the effect of discriminating. EPA recognizes that 
most permits control pollution, which is beneficial, but could, in some 
cases, still raise Title VI concerns because environmental laws do not 
account for disparity on the basis of race, color, or national origin. 
Title VI is concerned with how the effects of the programs and 
activities of a recipient are distributed based on race, color, or 
national origin. No Federal environmental laws address the issue of a 
disparity of impacts based on race, color, or national origin that may 
result from environmental permits.

[[Page 39691]]

Consequently, the scope of a recipient's Title VI obligation is not 
circumscribed by the framework established to carry out their 
environmental regulatory program.\192\
---------------------------------------------------------------------------

    \192\ Although not determinative, compliance with certain types 
of environmental standards may play a role in a Title VI 
investigation. See Draft Revised Investigation Guidance section 
VI.B.4.b.
---------------------------------------------------------------------------

    A recipient's Title VI obligation is layered upon its separate, but 
related obligations under the Federal or state environmental laws 
governing its environmental permitting program. Applicants for EPA 
financial assistance are required to submit an assurance with their 
applications stating that they will comply with the requirements of 
EPA's Title VI regulations.\193\ Recipient agencies must comply with 
EPA's Title VI regulations, which are incorporated by reference into 
the grants, as a condition of receiving funding under EPA's continuing 
environmental programs. It is EPA's position that Title VI and EPA's 
implementing regulations act as a substantive bar to discrimination 
under programs operated by EPA assistance recipients.
---------------------------------------------------------------------------

    \193\ 40 CFR 7.80(a)(1).
---------------------------------------------------------------------------

    A number of commenters argued that the key reasons why adverse 
disparate impacts might exist are controlled by factors outside the 
powers of state permitting agencies. One commenter cited factors such 
as market forces, stringency of environmental regulation and zoning, 
and land use laws. One commenter suggested that if disparate impact 
were found, EPA should curtail funding for agencies with authority over 
local land use planning, and not agencies with no control over siting 
or zoning.
    Response: Some have argued that the issuance of environmental 
permits does not ``cause'' discriminatory effects.\194\ Instead, they 
claim that local zoning decisions or siting decisions determine the 
location of the sources and the distribution of any impacts resulting 
from the permitted activities. However, in order to operate, the 
source's owners must both comply with local zoning requirements and 
obtain the appropriate environmental permit.
---------------------------------------------------------------------------

    \194\ If an EPA recipient is involved in the siting of a 
facility, EPA's Title VI regulations also prohibit recipients from 
choosing a site that has discriminatory effects. 40 CFR 7.35(c).
---------------------------------------------------------------------------

    In the Title VI context, the issuance of a permit is the necessary 
act that allows the operation of a source in a given location that 
could give rise to the adverse disparate effects on individuals. 
Therefore, a state permitting authority has an independent obligation 
to comply with Title VI, which is a direct result of its accepting 
Federal assistance and giving its assurance to comply with Title VI. In 
accordance with 40 CFR 7.35(b), recipients are responsible for ensuring 
that the activities authorized by their environmental permits do not 
have discriminatory effects, regardless of whether the recipient 
selects the site or location of permitted sources. Accordingly, if the 
recipient did not issue the permit, altered the permit, or required 
mitigation measures, certain impacts that are the result of the 
operation of the source could be avoided. The recipient's operation of 
its permitting program is independent of the local government zoning 
activities.
Impact on States and Other Recipient's Environmental Programs
    Some comments expressed concern about whether the Interim Guidance 
can be implemented consistently with environmental laws. In particular, 
some believed that the Interim Guidance may open recipients' permitting 
decisions to legal challenge. Others felt that the Interim Guidance 
requires recipients to address social and economic issues that they are 
not prepared to address.
    Response: EPA prohibits discriminatory effects in programs and 
activities administered by its recipients. With regard to environmental 
permitting programs, the scope of coverage includes, but is not limited 
to, the screening of permit applications, the public participation 
process for permit issuance, and the adverse disparate impacts that may 
result from the permits that the recipient issues. Recipients use a 
variety of criteria or methods of administration to implement their 
permitting programs, and they have a duty to comply with their Title VI 
obligation in exercising their permitting authority. This means that 
recipients have an obligation under Title VI and EPA's regulations to 
ensure that their approval of a permit does not subject those protected 
under Title VI to unjustified discriminatory effects, including human 
health and environmental effects.
    The Interim Guidance should not interfere with permitting programs 
that have properly been designed to meet Title VI obligations. The 
Draft Recipient Guidance suggests approaches and individual activities 
that recipients can develop to proactively address Title VI concerns in 
the permitting process.\195\ In terms of states' susceptibility to 
legal challenges to permitting decisions, recipients are already 
subject to legal challenges by individuals who have a private right of 
action in court to enforce the nondiscrimination requirements in Title 
VI and EPA's Title VI implementing regulations without exhausting their 
administrative remedies.\196\
---------------------------------------------------------------------------

    \195\ See Draft Recipient Guidance, section II.
    \196\ See Powell v. Ridge, 189 F.3d 387, 399 (3rd Cir.), cert. 
denied, 120 S. Ct. 579 (1999).
---------------------------------------------------------------------------

    EPA has issued the Draft Revised Investigation Guidance to clarify 
how EPA will handle complaint investigations and thereby reduce 
confusion. Neither the Interim Guidance nor the Draft Revised 
Investigation Guidance requires EPA recipients to take any action. The 
documents merely provide a framework for OCR to address certain 
complaints. Similarly, the Draft Recipient Guidance only offers 
suggestions for recipients to address Title VI concerns, but it does 
not require that recipients take any action. On the other hand, Title 
VI and EPA's Title VI implementing regulations prohibit entities from 
discriminating when they accept EPA's financial assistance. Rather than 
impeding a recipient's efforts to balance environmental protection with 
other considerations and to operate its permitting program, Title VI 
and EPA's regulations should help guide recipients in those efforts.
    Neither the Interim Guidance nor the Draft Revised Investigation 
Guidance requires recipients to address social and economic issues that 
they are not authorized to address. EPA expects to only assess the 
adverse disparate impact that result from factors within the 
recipient's authority to consider as defined by applicable laws, 
including those that involve broader cross-cutting matters.\197\
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    \197\ See Draft Revised Investigation Guidance, section 
VI.B.2.a.
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Public Participation and Stakeholder Input in the Permitting Process
    Several comments concerned the relationship between the public 
participation processes required by environmental law and the process 
discussed in the Interim Guidance.
    Response: Although the Interim Guidance does not specify how to 
approach Title VI concerns in the public participation process, the 
Draft Recipient Guidance provides suggestions and techniques that a 
recipient can use to develop procedures for its permitting process to 
ensure a non-discriminatory public participation process.\198\ EPA 
recognizes that recipients have different resources, organizational 
structures, and issues. Therefore, if a recipient elects to develop or 
modify its public participation process, it is up to the

[[Page 39692]]

recipient to choose which suggestions or techniques are most suitable 
to address its needs. It is not limited to adopting the suggestion or 
technique mentioned in the Draft Recipient Guidance. If OCR accepts a 
complaint regarding a recipient's public participation process, OCR 
expects to give due weight \199\ to a permitting program if it ensures 
a non-discriminatory public participation process.\200\
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    \198\ See Draft Recipient Guidance, section II.B.2. (discussing 
factors that contribute to effective and meaningful public 
participation).
    \199\ See Draft Revised Investigation Guidance, Appendix A 
(defining ``due weight'').
    \200\ See Draft Recipient Guidance, section II.B.2. (discussing 
the circumstances under which OCR might accord a public 
participation process due weight).
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Need for External Guidance
    Some commenters requested that EPA develop guidance for recipients 
to assist them in their efforts to comply with Title VI and EPA's Title 
VI regulations.
    Response: EPA encourages recipients to address Title VI issues 
early in the permitting process to reduce the likelihood that Title VI 
complaints will be filed after a permit has been issued. Although the 
Interim Guidance does not provide a framework for addressing Title VI 
concerns before the permit has been issued, the Draft Recipient 
Guidance provides recipients with suggestions that they can voluntarily 
use to address potential Title VI problems and reduce the likelihood of 
Title VI complaints.
    The Draft Recipient Guidance offers several suggestions to assist 
recipients in addressing those issues, including: (1) Development of 
new public participation procedures, or modification of existing 
procedures, to better incorporate and address the public's concerns; 
\201\ (2) creation of an approach to identify areas where adverse 
impacts disparately affect people on the basis of race, color, or 
national origin, and to reduce those impacts over time; \202\ and (3) 
performance of additional Title VI-related analyses and actions in some 
permitting decisions to address Title VI concerns.\203\ If recipients 
decide to develop Title VI programs, they may take the steps they deem 
appropriate to address their particular Title VI concerns and they are 
not limited to the suggestions offered by the Draft Recipient Guidance.
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    \201\ See id., section II.B.2.
    \202\ See id., section II.A.2.
    \203\ See id., section II.A.3.
---------------------------------------------------------------------------

Definition of Terms
    A variety of commenters requested that EPA provide more precise 
definitions of terms used in the Interim Guidance (e.g., disparate 
impact, affected population, mitigation). These commenters argued that 
because the Interim Guidance lacked precise definitions, they could not 
provide a reasonable critique. Commenters identified a number of terms 
that they believed would benefit from further definition and still 
other terms and phrases for which clarification was sought.
    Response: In the Draft Revised Investigation Guidance, EPA provides 
more clarity and gives definition to many terms presented in the 
Interim Guidance by including examples within the text, as well as a 
glossary of terms as an attachment. However, the exact parameters of 
some terms, such as what constitutes a adverse impact, appropriate 
mitigation, and acceptable justification, will depend upon case-
specific circumstances. EPA has also eliminated other terms that may 
have been confusing, ambiguous, or unnecessary.
Unfunded Mandates Reform Act
    Some commenters felt that the Interim Guidance will impose an 
unfunded mandate on states if they must revise existing permitting 
processes to conform to the guidance.
    Response: The Unfunded Mandates Reform Act of 1995 (UMRA) applies 
when an agency decides to take regulatory action through 
rulemaking.\204\ OCR issued the Interim Guidance as a non-binding 
policy statement because the Interim Guidance (and the Draft Revised 
Investigation Guidance) merely provide a framework for the processing 
of Title VI administrative complaints. Neither document creates any new 
substantive rights nor establishes any binding legal requirements.
---------------------------------------------------------------------------

    \204\ Public Law 104-4, 109 Stat. 48 (1995) (codified at 2 
U.S.C. 1501 et seq. (Supp. III 1998)).
---------------------------------------------------------------------------

    Moreover, even if OCR has issued the Interim Guidance as a rule, 
the scope of UMRA's coverage does not include the provisions of a 
proposed or final Federal regulation that establish or enforce 
nondiscrimination requirements, such as those in Title VI.\205\ If one 
or more provisions of a Title VI-related rule fell outside this 
exception, the Agency would be required to assess the effects of these 
regulatory provisions on state, local, and tribal governments and the 
private sector, pursuant to Title II of UMRA.
---------------------------------------------------------------------------

    \205\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

    The Draft Recipient Guidance was created to assist state and local 
governments in their efforts to address Title VI concerns. Both draft 
guidance documents were developed with significant input from state and 
local governments. EPA plans to assist state efforts by sharing 
methodologies and information pertaining to the adverse disparate 
impact assessment whenever practicable.
Brownfields and Clean-Ups
    Several comments concerned the effect of the Interim Guidance on 
brownfields redevelopment, economic development, and clean-up 
activities.
    Response: EPA does not believe that the Interim Guidance or the 
Draft Revised Investigation Guidance discourage brownfield 
redevelopment or encourage greenfield development. In fact, in a recent 
report analyzing the interaction between Title VI and brownfields, EPA 
found that ``claims that EPA's Interim Title VI Guidance would hinder 
brownfields redevelopment are largely unfounded. * * * It is apparent 
from the interviews conducted for these case studies that while there 
are many potential issues that can forestall redevelopment at 
brownfields sites, Title VI is not high on the list of concerns.'' 
\206\ Also, no Title VI complaints have been filed regarding EPA 
brownfields projects.
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    \206\ Office of Solid Waste and Emergency Response, U.S. EPA, 
Brownfields Title VI Case Studies: Summary Report 23 (1999).
---------------------------------------------------------------------------

    EPA believes that the implementation of civil rights and 
environmental laws is compatible and consistent with state and local 
recipients' efforts to achieve sustainable economic development. 
Addressing Title VI concerns in the permitting process does not prevent 
sustainable development, but rather ensures responsible development 
that protects the basic right of every citizen not to be discriminated 
against. EPA is firmly committed to continuing its work with community 
leaders, state and local governments, and businesses to facilitate 
economic development while ensuring strong protections of public 
health, the environment, and basic civil rights.
    Both the Interim Guidance and the Draft Revised Investigation 
Guidance address Title VI issues related to environmental permitting 
decisions. EPA may, if appropriate, develop future guidance relating to 
Title VI and clean-up activities.

Issues Regarding the Overall Framework for Processing Complaints

Involvement of Additional Parties
    Several commenters urged that additional parties be involved in the 
evaluation of complaints including the permit applicant, the affected

[[Page 39693]]

community, the complainant, and the recipient of Federal assistance.
    Response: Depending upon the specifics of each complaint, OCR 
expects to involve a variety of parties in its investigations of Title 
VI complaints. OCR plans to work closely with recipients to ensure that 
the Agency has a complete and accurate record, and a full understanding 
of the recipient's position.\207\
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    \207\See Draft Revised Investigation Guidance, section II.B.1. 
(discussing when recipients can provide information to OCR).
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    Once a complaint is accepted for investigation by OCR, complainants 
may play an important role in the administrative process; however, that 
role is determined by the nature and circumstances of the claims.\208\ 
Complainants will likely be asked to allow OCR to conduct interviews 
and to collect a variety of documents during the course of the 
investigation. Also, complainants may play an important role in the 
informal resolution process. However, it is important to note that EPA 
does not represent the complainants, but rather the interests of the 
Federal government, in ensuring nondiscrimination by its recipients. 
Other members of the community could be involved in a similar manner.
---------------------------------------------------------------------------

    \208\ See Draft Revised Investigation Guidance, section II.B.2. 
(providing additional discussion about a complainant's role in OCR's 
investigation).
---------------------------------------------------------------------------

    The permittee may also be asked to provide information to assist in 
the investigation of the complaint. The recipient may wish to notify 
the permittee about the investigation, particularly if potential 
mitigation measures may involve the permittee. During several 
investigations, permit applicants have sent information to OCR that 
they believe is relevant. In those instances, OCR has reviewed the 
information and placed it in the investigatory file.
Submission of Information by Recipients and Complainants
    Some comments raised questions about the points in the 
investigation process when recipients and complainants should provide 
or receive information.
    Response: EPA's Title VI implementing regulations provide the 
recipient with several opportunities to respond to and/or to rebut both 
a complaint and OCR's findings. It is both up to the recipient and in 
the recipient's interest to provide a rebuttal as early as possible 
because it might help to quickly resolve the complaint. As the Draft 
Revised Investigation Guidance explains, the recipient may make a 
written submission responding to, rebutting, or denying the allegations 
raised in a complaint within 30 calendar days of receiving notification 
that a complaint has been accepted.\209\ OCR will then attempt to 
resolve the complaint informally, during which time the recipient will 
have a second opportunity to state its position.
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    \209\ See Draft Revised Investigation Guidance, section II.A.1. 
See also 40 CFR 7.120(d)(1).
---------------------------------------------------------------------------

    If OCR later makes a preliminary finding of noncompliance, the 
recipient may then submit a written response, within 50 calendar days 
of receiving the preliminary finding, demonstrating that the 
preliminary findings are incorrect or that compliance may be achieved 
through steps other than those recommended by OCR.\210\ Finally, if OCR 
initiates procedures to deny, annul, suspend, or terminate EPA 
assistance, a recipient may request a hearing before an administrative 
law judge (ALJ).\211\ If the ALJ's decision upholds OCR's finding of 
noncompliance, the recipient may then file exceptions with the 
Administrator.\212\
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    \210\ See Draft Revised Investigation Guidance, section II.A.4. 
See also 40 CFR 7.115(d).
    \211\ 40 CFR 7.130(b)(2).
    \212\ 40 CFR 7.130(b)(3).
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    Once a complaint has been accepted for investigation by OCR, the 
complainants may play an important role in the investigative process, 
as well as in the informal resolution process; however, that role is 
determined by the nature and circumstances of the claims.\213\ EPA's 
Title VI regulations and administrative investigations are not designed 
to create an adversarial relationship between the complainant and the 
recipient. Rather, the process should be viewed as EPA investigating 
allegations of improper use of EPA financial assistance.
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    \213\ See Draft Revised Investigation Guidance, section II.B.2.
---------------------------------------------------------------------------

    Because the process is not adversarial, the complainants do not 
have the burden of proving that their allegations are true. 
Investigating allegations and determining compliance is EPA's job. 
However, complainants are encouraged to provide information that is 
helpful to the investigation and resolution of the complaint. It is 
important to note that EPA does not represent the complainants, but 
rather the interests of the Federal government in ensuring 
nondiscrimination by its recipients.
    The complainants may provide documentary evidence in support of 
their allegations as attachments to the complaint. Recipients may 
include evidence to support their claims in their response to the 
allegations. In addition, during the course of the investigation, 
complainants and recipients may seek to submit additional relevant 
information that comes to their attention. OCR must balance the need 
for a thorough investigation with the need to complete the 
investigation in a timely manner. Therefore, at the conclusion of 
interviews with the complainants, recipients, or other witnesses, OCR 
expects to ask each to submit, within 14 calendar days of the 
interview, any additional information that they would like considered 
as OCR drafts its investigative report.
Ability for Complainants to Appeal
    One commenter requested that EPA provide an administrative appeal 
process for complainants who believe their complaints have been 
inappropriately dismissed.
    Response: The Title VI administrative process is not an adversarial 
one between the complainant and recipient. As a result, the 
complainants do not have the burden of presenting evidence to support 
their allegations or proving that their allegations are true. EPA, 
however, encourages complainants to provide as much information as 
possible to assist in the investigation. Investigating allegations and 
determining compliance is EPA's responsibility. EPA does not represent 
the complainants, but rather the interests of the Federal government in 
ensuring nondiscrimination by its recipient. As a result, there are no 
appeal rights for the complainant built into EPA's Title VI regulatory 
process. Complainants, however, may be able to challenge the 
recipient's action or EPA's ultimate finding in court.
Accepting and Rejecting Complaints
    Several commenters suggested that EPA raise the threshold for 
accepting complaints.
    Response: The criteria for accepting and rejecting complaints are 
described in EPA's Title VI regulations, which are based on DOJ's model 
regulations.\214\ In addition, Executive Order 12250 requires that 
agencies' Title VI implementing directive ``be consistent with the 
requirements prescribed by the Attorney General * * * and shall be 
subject to the approval of the Attorney General * * *.'' As a result, 
EPA's Title VI regulations are very similar to the criteria applied by 
other agencies for accepting and rejecting Title VI complaints.
---------------------------------------------------------------------------

    \214\ 28 CFR 42.401-42.415.
---------------------------------------------------------------------------

    OCR intends to accept and investigate a complaint if it: (1) Is 
written; (2) describes the alleged discriminatory act(s) of an EPA 
recipient that violates

[[Page 39694]]

EPA's Title VI regulations; (3) is filed within 180 calendar days of 
the alleged discriminatory act(s); and (4) is filed by a person or 
member of a specific class of people that was allegedly discriminated 
against in violation of EPA's Title VI regulations; or their authorized 
representative.\215\
---------------------------------------------------------------------------

    \215\ See Draft Revised Investigation Guidance, section III.A.
---------------------------------------------------------------------------

    EPA regulations define a recipient as ``any State or its political 
subdivision, any instrumentality of a State or its political 
subdivision, any public or private agency, institution, organization, 
or other entity, or any person to which Federal financial assistance is 
extended directly or through another recipient.'' \216\ As mentioned 
above, Title VI allows the Federal government to require compliance 
with Title VI as a condition of receiving financial assistance. 
Acceptance of EPA financial assistance creates an obligation on the 
recipient to comply with the regulations for the duration listed below:
---------------------------------------------------------------------------

    \216\ 40 CFR 7.25.
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     For assistance involving real property or structures on 
the property, the obligation attaches ``during the period the real 
property or structures are used for the purpose for which EPA 
assistance is extended, or for another purpose in which similar 
services or benefits are provided.'' \217\
---------------------------------------------------------------------------

    \217\ 40 CFR 7.80(a)(2)(i).
---------------------------------------------------------------------------

     For assistance in the form of personal property, the 
obligation attaches ``for so long as [the recipient] continues to own 
or possess the property.'' \218\
---------------------------------------------------------------------------

    \218\ 40 CFR 7.80(a)(2)(ii).
---------------------------------------------------------------------------

     In all other cases, the obligation attaches ``for as long 
as EPA assistance is extended.'' \219\
---------------------------------------------------------------------------

    \219\ 40 CFR 7.80(a)(2)(iii).
---------------------------------------------------------------------------

    EPA's Title VI administrative complaint process is not designed to 
be an adversarial one between the complainant and the recipient. 
Rather, the complainant is providing EPA with information about 
potential violations of Title VI and EPA's implementing regulations, so 
that the Agency can investigate whether its funds are being spent in a 
discriminatory manner. Raising the threshold for accepting complaints 
for investigation would likely impose a burden of proof on Title VI 
complainants at EPA that is not imposed by other Federal agencies and 
would be inappropriate for the non-adversarial scheme established by 
EPA's Title VI regulations.
Use of Permit Appeal Processes
    Other comments concerned the relationship between Title VI 
complaints filed with EPA and permit appeals filed with the permitting 
authority. Several commenters suggested Title VI complaints be handled 
through permitting processes.
    Response: The Interim Guidance indicated EPA's support for 
complainants use of recipients' permit appeal process.\220\ To 
encourage early resolution of Title VI issues, OCR expects to consider 
a complainant's pursuit of its Title VI concerns through the 
recipient's administrative appeals process when evaluating a request to 
waive the 180-day timeliness requirement for good cause.\221\
---------------------------------------------------------------------------

    \220\ See Interim Guidance, at 6-7.
    \221\ 40 CFR 7.120(b)(2); Draft Revised Investigation Guidance, 
section III.B.2.
---------------------------------------------------------------------------

    Similarly, the Draft Revised Investigation Guidance states that OCR 
will generally dismiss complaints without prejudice (i.e., OCR may 
dismiss the complaint, but that dismissal would not prohibit the 
complainant from re-filing its complaint at a later date) if the issues 
raised in the complaint are the subject of either ongoing 
administrative permit appeals, or litigation in Federal or state 
court.\222\ In such cases, OCR believes that it should await the 
results of the permit appeal or litigation by waiving the time limit, 
rather than conducting a simultaneous investigation on the basis of 
facts that may change due to the outcome of the administrative appeal 
or litigation. OCR expects to notify the complainant that it may re-
file the complaint within a reasonable time, generally not more than 60 
calendar days after the conclusion of the administrative appeal 
process. OCR would then likely make a determination, after considering 
factors relevant to the particular case, whether to waive the 180-day 
regulatory time frame.
---------------------------------------------------------------------------

    \222\ See Draft Revised Investigation Guidance, section III.B.3.
---------------------------------------------------------------------------

    If a complaint is premature, the Draft Revised Investigation 
Guidance states that OCR expects to notify the complainant that the 
complaint is premature and dismiss the complaint without prejudice. If 
the complainant is not satisfied that the Title VI nondiscrimination 
requirements have been met when the permit is issued, the complainant 
can re-file its complaint if and when the permit is issued. In 
addition, OCR will provide the recipient with the information contained 
in the complaint to facilitate the recipient's ability to appropriately 
address the concerns raised in the complaint during the permitting 
process.\223\
---------------------------------------------------------------------------

    \223\ See Draft Revised Investigation Guidance, section III.B.4.
---------------------------------------------------------------------------

    OCR encourages communities, recipients, and permittees to identify 
and address potential Title VI problems as early as possible. In most 
cases, that should occur before the permitting process begins. In other 
cases, it may occur during the permitting process. The Draft Recipient 
Guidance suggests that recipients develop approaches to deal with Title 
VI issues prior to or during implementation of their existing 
permitting procedures.\224\ Such approaches could involve the 
modification of existing public participation processes in the 
recipient's permitting program, or the establishment of a plan to find 
and remedy potential disparate impacts. In some cases, however, even 
where such a plan is in place, if a complainant feels that a recipient 
has violated Title VI or EPA's implementing regulations, OCR may have 
to conduct an investigation independent of the current permitting 
process.
---------------------------------------------------------------------------

    \224\ See Draft Recipient Guidance, section II.A.
---------------------------------------------------------------------------

    Imposing a requirement that complainants use all of the recipient's 
available permit appeal processes prior to filing a Title VI complaint 
would be inconsistent with the structure of Title VI. Courts have held 
that those who believe they have been discriminated against in 
violation of Title VI or EPA's implementing regulations may challenge a 
recipient's alleged discriminatory act in court without exhausting 
their Title VI administrative remedies with EPA.\225\ In other words, 
Title VI does not require complainants to utilize the Federal 
administrative process, so it would seem inconsistent to require 
complainants to utilize state administrative processes. Nonetheless, as 
discussed above, OCR strongly encourages all parties to seek early 
resolution of their Title VI concerns.
---------------------------------------------------------------------------

    \225\ See Powell v. Ridge, 189 F.3d 387, 397-400 (3d Cir.), 
cert. denied, 120 S. Ct. 579 (1999) (finding that citizens have a 
private right of action under agency's regulations promulgated under 
section 602 of Civil Rights Act of 1964).
---------------------------------------------------------------------------

180-Day Time Period for Filing Complaints: Start of Clock
    Commenters also voiced opinions on when the 180-day period should 
begin to run and whether the Interim Guidance's position on that issue 
was consistent with certain environmental permitting requirements.
    Response: Title VI imposes obligations that are related to, but 
separate from, those imposed by environmental law. As a result, the 
180-day period for filing complaints under EPA's Title VI regulations 
may be triggered by certain actions that do not necessarily match 
similar aspects of

[[Page 39695]]

environmental laws (i.e., as explained below, Title VI's 180-day period 
for filing a complaint begins when the permit is issued, but, for the 
purposes of the environmental law, the issuance of the permit might not 
have the same significance). Nonetheless, EPA expects that the two 
approaches will be compatible because neither the filing of nor the 
investigation of a complaint alleging a Title VI violation impacts the 
effectiveness of a permit. A permit is not automatically stayed as a 
result of the filing or acceptance for investigation of a Title VI 
complaint.
    Complaints alleging discriminatory effects arising out of a permit 
should be filed within 180 calendar days of the issuance of the permit, 
while complaints alleging public participation issues should be filed 
within 180 calendar days of the alleged discriminatory act in the 
public participation process.\226\ If a complaint is filed more than 
180 calendar days after the alleged discriminatory act occurred, OCR 
will generally reject it as untimely. In general, as discussed above, 
OCR will dismiss complaints without prejudice \227\ where there are 
ongoing administrative appeals or litigated issues in Federal or state 
courts regarding the same permit.
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    \226\ See Draft Revised Investigation Guidance, section III.B.1.
    \227\ In other words, OCR may dismiss the complaint, but that 
dismissal would not prohibit the complaint from re-filing its 
complaint at a later date.
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180-Day Time Period for Filing Complaints: Duration, Waivers and Effect 
on Permittees
    A number of comments related to the length of the 180-day time 
period for filing. Some felt that it is too long, while others thought 
it is too short.
    Response: DOJ is responsible for coordinating the implementation 
and enforcement by Executive agencies of Title VI.\228\ In fulfilling 
its responsibilities, DOJ published regulations entitled, 
``Nondiscrimination in Federally Assisted Programs-Implementation of 
Title VI of the Civil Rights Act of 1964.'' \229\ Among other things, 
these regulations discuss the way in which investigations should be 
conducted, and explain, regarding complaints, that: ``A complaint must 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Department official or his designee.'' \230\ This 
regulation forms, in part, the basis for EPA's own regulations, which 
require a complaint to be filed within 180 days. As mentioned above, 
neither the filing nor the investigation of a complaint alleging a 
Title VI violation impacts the effectiveness of a permit.
---------------------------------------------------------------------------

    \228\ See Executive Order 12250, 45 FR 72995 (1980) (section 1-
2).
    \229\ See 28 CFR 42.101 et seq.
    \230\ 28 CFR 42.107(b).
---------------------------------------------------------------------------

Timing and Sequencing Issues
    Issue: One commenter suggested that Title VI complaints should be 
filed as outlined in 40 CFR part 122, which concerns the issuance of 
permits under the National Pollutant Discharge Elimination System. 
Several commenters expressed concern about when recipients would be 
notified by EPA about complaints and how the time frame for voluntary 
compliance works. Some commenters were particularly concerned about the 
``initial finding of a disparate impact'' described in the Interim 
Guidance.
    Response: EPA's regulations, which are based on DOJ's model 
regulations,\231\ are specifically intended to address the processing 
of Title VI complaints. Therefore, OCR cannot adopt the procedures 
described in other EPA regulations. The Interim Guidance did not 
mention all of the time frames for conducting complaint investigations 
and for attaining compliance set forth in EPA's Title VI regulations. 
To avoid confusion, the Draft Revised Investigation Guidance addresses 
all of the time frames specified in EPA's Title VI implementing 
regulations.\232\ Accordingly, the Draft Revised Investigation Guidance 
states that OCR will notify the recipient of a complaint filed against 
it within five calendar days of OCR's receipt of the complaint.\233\ 
The 10-day time frame for a recipient to come into voluntary compliance 
is also a requirement under EPA's Title VI regulations.\234\ 
Recognizing that elimination of adverse disparate impacts within 10 
days may not be achievable, OCR may postpone proceedings to deny, 
annul, suspend, or terminate EPA assistance, if the recipient has 
demonstrated a good faith effort (e.g., signed a voluntary compliance 
agreement) to come into compliance.
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    \231\ 28 CFR 42.408 (DOJ Complaint Procedures; 40 CFR 7.120 (EPA 
Complaint Investigation).
    \232\ See Draft Revised Investigation Guidance, sections II & 
III.
    \233\ See id., section II.A.1; see also, 40 CFR 7.120(c).
    \234\ See 40 CFR 7.115(e); Draft Revised Investigation Guidance, 
section II.A.6.
---------------------------------------------------------------------------

    Concerning the comment about the initial finding of disparate 
impact, the Draft Revised Investigation Guidance eliminates that part 
of the investigation process. OCR suggested the initial finding 
provision primarily to promote informal resolution before a preliminary 
finding of noncompliance, but found that the provision created 
confusion. Instead, EPA now encourages informal resolution throughout 
the process, but particularly early in the process.
    Issue: One commenter suggested that EPA impose a time limit for 
conducting a disparate impact analysis.
    Response: EPA's Title VI implementing regulations state that OCR 
will provide its preliminary findings on a complaint within 180 days 
from the start of the complaint investigation.\235\ As OCR gains more 
experience with conducting the necessary analyses, we expect to reduce 
the time that it takes.
---------------------------------------------------------------------------

    \235\ 40 CFR 7.115(c)(1).
---------------------------------------------------------------------------

    In addition, if the recipient takes steps to proactively address 
the Title VI concerns raised in a complaint, such as performing an 
analysis of the potential impacts, OCR may grant due weight to those 
analyses and the investigative process could be completed more quickly. 
The Draft Revised Investigation Guidance describes the factors OCR will 
use to evaluate the appropriateness and validity of a recipient's 
analysis and to assess the overall reasonableness of its conclusions. 
\236\ The Draft Revised Investigation Guidance also explains that more 
weight will be given to analyses that are relevant to the Title VI 
concerns in the complaint under investigation and have sufficient 
depth, breadth, completeness, and accuracy. Where a recipient or 
complainant submits a relevant analysis, OCR may give the results of 
that study due weight and rely on it in determining whether the 
recipient is in compliance with EPA's Title VI regulations.
---------------------------------------------------------------------------

    \236\See Draft Revised Investigation Guidance, section V.B.
---------------------------------------------------------------------------

    Issue: Some commenters indicated that under EPA's Title VI 
regulations, after the complainant files a valid Title VI claim, the 
recipient should be given an opportunity to justify its decision and 
thereafter the complainant may identify a less discriminatory 
alternative.
    Response: Recipients are afforded several specific opportunities to 
provide information to OCR before and during an investigation. For 
example, upon receiving notification of OCR's receipt of the complaint, 
the recipient may make a written submission responding to, rebutting, 
or denying the allegations in the complaint within 30 calendar 
days.\237\ In any of the recipient's submissions, it may provide a 
justification for its decision.
---------------------------------------------------------------------------

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

    Title VI burdens of proof in litigation inform EPA of what 
information is

[[Page 39696]]

necessary to decide whether Title VI has been violated. In litigation, 
a plaintiff (i.e., a person or persons who believe they have been 
discriminated against) must show that an alleged act has a disparate 
impact on an identifiable population defined by race, color, or 
national origin.\238\ If the disparate impact is shown, the defendants 
(i.e., recipients) must prove that the activity is justified by a 
substantial legitimate justification.\239\ If the recipient's 
justification meets the test, the plaintiff may show that there is a 
less discriminatory alternative that meets the same objective.\240\ The 
recipient may rebut this by showing that the alternatives do not meet 
its legitimate objectives.\241\ If the recipient cannot rebut the 
plaintiff's showing, then there is a violation of Title VI.\242\ OCR 
intends to apply a similar approach to its investigations.
---------------------------------------------------------------------------

    \238\ See Coalition of Concerned Citizens Against I-670 v. 
Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984).
    \239\ Damian, 608 F. Supp. at 127.
    \240\ Id.
    \241\ Id.
    \242\ Id.; see also Sandoval v. L.N. Hagan, 7 F. Supp. 2d 1234, 
1298 (M.D. Ala. 1998) (plaintiffs prevailed in proving a Title VI 
violation by offering an effective less discriminatory alternative).
---------------------------------------------------------------------------

    The investigation of Title VI administrative complaints by OCR does 
not involve an adversarial process, as in litigation, between the 
complainant and the recipient. Rather, it should be viewed as EPA 
investigating allegations that EPA financial assistance is being used 
improperly. Consequently, the complainants do not have the burden of 
proving that their allegations are true and are not obligated to offer 
less discriminatory alternatives. Instead, EPA has the responsibility 
to determine whether a violation exists and, where appropriate, to 
uncover less discriminatory alternatives. Nonetheless, EPA encourages 
complainants to provide whatever relevant information they may have.
Filing of Complaints Issues
    Issue: Some comments involved the question of who may file a Title 
VI administrative complaint.
    Response: It is the general policy of OCR to investigate all 
administrative complaints concerning the conduct of a recipient of EPA 
financial assistance \243\ that satisfy the jurisdictional criteria in 
EPA's implementing regulations.\244\ EPA's regulations provide that 
complaints may only be filed by:
---------------------------------------------------------------------------

    \243\ See 40 CFR 7.15.
    \244\ See 40 CFR 7.120.
---------------------------------------------------------------------------

    (a) A person who was allegedly discriminated against in violation 
of EPA's Title VI regulations;
    (b) A person who is a member of a specific class of people 
allegedly discriminated against in violation of EPA's Title VI 
regulations; or
    (c) A party that is authorized to represent a person or specific 
class of people allegedly discriminated against in violation of EPA's 
Title VI.
    In some cases, a person or a class of people allegedly 
discriminated against may select a representative from another 
geographic area. The regulations allow complainants to take such 
action.\245\
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    \245\ See Draft Revised Investigation Guidance, section III.A. 
(describing criteria for accepting or rejecting complaints).
---------------------------------------------------------------------------

    Issue: One commenter stated that permitees should not be allowed to 
continue construction of a new facility while a complaint is being 
investigated.
    Response: EPA's Title VI regulations do not provide for staying a 
permit during the pendency of an investigation. If the permit has been 
validly issued under the recipient's environmental program, then the 
facility may begin permitted activities. However, should discriminatory 
effects be found as a result of a Title VI investigation, mitigation 
measures by the recipient may be necessary. Because, as the Draft 
Revised Investigation Guidance states, EPA believes it will be a rare 
situation where the permit that triggered the complaint is the sole 
reason a discriminatory effect exists, denial of the permit at issue 
will not necessarily be an appropriate solution.\246\ Often, Title VI 
concerns are raised where a number of sources are contributing to the 
adverse effects that communities believe they are suffering. Efforts 
that focus on all contributions to the disparate impact, not just the 
permit at issue, will likely yield the most effective long-term 
solutions.
---------------------------------------------------------------------------

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

Informal Resolution
    One commenter argued that the Interim Guidance gave EPA too much 
flexibility with regard to the use of informal resolution.
    Response: EPA's Title VI regulations call for OCR to pursue 
informal resolution of administrative complaints wherever 
practicable.\247\ Therefore, OCR will endeavor to facilitate the use of 
informal resolution to resolve pending Title VI complaints and to 
reduce the likelihood of future Title VI complaints. OCR intends to 
encourage informal resolution particularly in the notification of 
receipt of a complaint and again with acceptance of a complaint for 
investigation. Informal resolution may follow either of the two 
approaches discussed below.\248\
---------------------------------------------------------------------------

    \247\ 40 CFR 7.120(d)(2).
    \248\ See Draft Revised Investigation Guidance, section IV.A.
---------------------------------------------------------------------------

    The first approach would be to encourage recipients and 
complainants to try to resolve the issues between them. If the informal 
resolution results in withdrawal of the Title VI administrative 
complaint, EPA will dismiss the complaint, notify the recipients and 
complainants, and close the file. To the extent resources are 
available, EPA expects to provide support for such informal resolution 
efforts. The second approach would be for OCR and the recipient to 
reach an agreement on relief. In either case, other parties may be 
involved depending upon the facts and circumstances of the complaint.
    In appropriate situations, EPA expects the use of alternative 
dispute resolution (ADR) techniques to informally resolve the 
complaint. ADR includes a variety of approaches including the use of a 
third party neutral acting as a mediator or the use of a structured 
process through which the parties can participate in shared learning 
and creative problem solving to reach a consensus. The recipient, as a 
result of its efforts to informally resolve a Title VI complaint with 
complainants or with OCR, may elect to submit a plan for mitigating a 
disparate impact.\249\
---------------------------------------------------------------------------

    \249\ See id., section IV.B.
---------------------------------------------------------------------------

    OCR will discuss offers by recipients to reach informal resolution 
at any point during the administrative process before filing a formal 
finding of noncompliance. However, it is OCR's responsibility to ensure 
nondiscrimination in the programs or activities of recipients to whom 
EPA provides financial assistance. Therefore, an investigation may be 
needed to determine the appropriate relief and/or corrective action.
Suspension of Federal Assistance
    Some commenters asked EPA to explain EPA's authority to terminate 
funding and to specify which Federal funds could be affected by a 
finding of noncompliance with Title VI and how that process would 
proceed.
    Response: Whenever possible, OCR will attempt to resolve complaints 
informally, as described above.\250\ If this fails and OCR makes a 
formal determination of noncompliance and the recipient does not 
voluntarily comply, OCR must start proceedings to deny, annul, suspend, 
or terminate EPA assistance,\251\ or ``use any other means

[[Page 39697]]

authorized by law to get compliance, including a referral of the matter 
to the Department of Justice.'' \252\
    Even if OCR decides to deny, annul, suspend, or terminate 
assistance, the recipient is entitled to a hearing on this decision 
before an EPA ALJ.\253\ If the ALJ's determination is not favorable to 
the recipient, the recipient may appeal the ALJ's determination to the 
Administrator.\254\ Thus, OCR's complaint resolution process is not one 
that immediately contemplates suspending EPA assistance, but one that 
resorts to suspending assistance when informal resolution and voluntary 
compliance efforts are not possible or have failed.
---------------------------------------------------------------------------

    \250\ 40 CFR 7.120(d)(2). See Draft Revised Investigation 
Guidance, section IV.
    \251\ 40 CFR 7.115(e), 7.130(b).
    \252\ 40 CFR 7.130(a).
    \253\ 40 CFR 7.130(b)(2).
    \254\ 40 CFR 7.130(b)(3)(i).
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    In the event OCR attempts to deny, annul, suspend, or terminate 
assistance, EPA's Title VI implementing regulations only concern EPA 
assistance.\255\ The regulations do not give EPA authority to pursue 
denying, annulling, suspending, or terminating Federal financial 
assistance from sources outside EPA. Accordingly, both the Interim 
Guidance and the Draft Revised Investigation Guidance refer only to 
initiating procedures to deny, annul, suspend, or terminate EPA 
assistance.\256\
---------------------------------------------------------------------------

    \255\ 40 CFR 7.130(b) (``Procedure to deny, annual, suspend or 
terminate EPA assistance.'').
    \256\ See Interim Guidance at 3; Draft Revised Investigation 
Guidance, section II.A.7.
---------------------------------------------------------------------------

    Title VI prohibits discrimination in ``any program or activity 
receiving Federal financial assistance.'' \257\ The Civil Rights 
Restoration Act of 1987 \258\ amended Title VI and defined a 
``program'' or ``activity'' to include, among other things, ``all of 
the operations of * * * a department, agency, special purpose district, 
or other instrumentality of a State or of a local government * * * any 
part of which is extended Federal financial assistance.'' \259\ 
Therefore, unless expressly exempted from Title VI by Federal statute, 
all programs and activities of a department or agency that receives EPA 
funds are subject to Title VI, including those programs and activities 
that are not EPA-funded. For example, the issuance of permits by EPA 
recipients under solid waste programs administered pursuant to Subtitle 
D of the Resource Conservation and Recovery Act, which historically 
have not been grant-funded by EPA, or the actions they take under 
programs that do not derive their authority from EPA statutes (e.g., 
state environmental assessment requirements), are part of a program or 
activity covered by EPA's regulations if the recipient receives any 
funding from EPA.
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    \257\ 42 U.S.C. 2000d.
    \258\ Public Law 100-259, 102 Stat. 28 (1988).
    \259\ 42 U.S.C. 2000d-4a.
---------------------------------------------------------------------------

    EPA's regulations also limit the scope of the decision to deny, 
annul, suspend, or terminate assistance to ``the particular applicant 
or recipient who was found to have discriminated, and shall be limited 
in its effect to the particular program or the part of it in which the 
discrimination was found.'' \260\
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    \260\ 40 CFR 7.130(b)(4).
---------------------------------------------------------------------------

    EPA has some discretion about how to enforce Title VI and EPA's 
implementing regulations, but not about whether to enforce. In July 
1994, the Attorney General issued a memorandum to the heads of all 
Federal agencies with Title VI responsibilities stating that 
``[e]nforcement of the disparate impact provisions is an essential 
component of an effective civil rights compliance program.'' \261\ The 
Attorney General directed the head of each Federal agency ``to make 
certain that Title VI is not violated, [and] ensure that the disparate 
impact provisions in [the Title VI] regulations are fully utilized.'' 
\262\
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    \261\ See Memorandum from Attorney General supra note 7, at 1.
    \262\ Id.
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Permit Renewals Issues
    Issue: Some commenters asked whether EPA's approach to renewals is 
consistent with environmental permitting requirements.
    Response: Although there may be some overlapping of legal 
principles and requirements, Title VI and EPA's Title VI regulations 
impose separate requirements on recipients from those of environmental 
statutes and their implementing regulations. Even if environmental laws 
mandate different treatment for new permits, permit renewals, and 
permit modifications, EPA's Title VI regulations do not require 
different review of these actions.
    Under the Draft Revised Investigation Guidance, renewals and 
modifications, like new permits, would be available to form the basis 
for an initial investigation. Such an approach will assist recipients 
in achieving an equitable distribution of their efforts to meet Title 
VI's requirements. In addition, the inclusion of renewals and 
modifications improves the ability to consider existing adverse 
disparate impacts. However, where OCR is not likely to initiate an 
investigation where: (1) A complaint alleges discriminatory effects 
from emissions, including cumulative emissions, and the permit action 
that triggered the complaint significantly decreases overall emissions 
\263\ at the facility or (2) where a complaint alleges discriminatory 
effects from emissions, including cumulative emissions, of pollutants 
or stressors of concern (pollutants of concern) named in the complaint, 
and the permit action that triggered the complaint significantly 
decreases all named pollutants of concern or all the pollutants OCR 
reasonably infers are the potential source of the alleged impact.
---------------------------------------------------------------------------

    \263\ Assessing a significant overall decrease would entail 
taking into account factors such as total quantity and relative 
toxicity of the emissions reductions.
---------------------------------------------------------------------------

    Regardless of the type of permit involved, if a complaint is filed 
with OCR alleging that a recipient violated Title VI or EPA's 
regulations, OCR's decision to accept or reject the complaint would be 
based on the standard jurisdictional criteria provided in EPA's Title 
VI regulations.\264\ If a complaint is accepted, OCR expects to 
evaluate the impact of the permitting action. Permitting actions that 
reduce adverse impacts from the source are not likely to form the basis 
for a finding of noncompliance with Title VI. In addition, 
modifications, such as a facility name change or a change in a mailing 
address, that do not involve actions related to the stressors \265\ 
identified in the complaint generally will not form the basis for a 
finding of noncompliance and will likely be dismissed.\266\
---------------------------------------------------------------------------

    \264\ See 40 CFR 7.120 (stating the criteria for accepting a 
complaint); Draft Revised Investigation Guidance, sections III.A. 
and VI.B.1.a.
    \265\ See Draft Revised Investigation Guidance, Glossary.
    \266\ See id., section VI.B.1.a.
---------------------------------------------------------------------------

    Issue: Other commenters argued that the application of Title VI to 
renewals should consider whether the demographics of the area in 
question have changed.
    Response: EPA's Title VI regulations direct OCR to investigate 
actions by recipients allegedly involving intentional discrimination or 
resulting in discriminatory impacts, and to determine whether the 
actions violate the regulations. In the permitting context, OCR must 
analyze a Title VI complaint based on the facts and circumstances 
existing at the time the permitting decision at issue was made because 
those are the conditions that the complaint concerns. Therefore, the 
demographic composition of the area at the time that the permit was 
initially issued, perhaps a decade or more ago, may or may not be 
relevant for OCR's review of an allegation that discriminatory effects 
currently exist.

[[Page 39698]]

    Issue: A commenter suggested that in order to avoid conducting a 
disparate impact analysis for each permit renewal for facilities with 
multiple permits, an initial disparate impact analysis covering all 
permits for the facility, not merely the permit up for renewal, should 
be conducted. Assuming any Title VI concerns were resolved, further 
claims regarding renewals related to permits at the facility would be 
dismissed.
    Response: The Draft Revised Investigation Guidance indicates that 
EPA intends, in some cases, to consider the cumulative impacts of 
pollution from a wide range of sources. OCR may investigate cases in 
which the permitted activity is one of several activities, which 
together present a cumulative impact.\267\ This may include evaluating 
multiple activities at a single facility. In some rare instances, EPA 
may need to determine whether the impacts of a single permit, standing 
alone, may be considered to support a disparate impact claim. EPA 
intends to let the circumstances of each complaint dictate which 
approach is appropriate.
---------------------------------------------------------------------------

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

    Furthermore, the Draft Revised Investigation Guidance and the Draft 
Recipient Guidance also encourage recipients to identify geographic 
areas where adverse disparate impacts may exist and to enter into 
agreements (area-specific agreements) with the affected communities and 
stakeholders to reduce pollution impacts in those geographic areas over 
time.\268\ The results of such efforts may be granted due weight in 
appropriate circumstances \269\ and reduce the likelihood that 
additional complaints would be filed in those areas. Moreover, if OCR 
had previously determined that actions taken pursuant to an area-wide 
agreement would eliminate discriminatory effects, OCR would generally 
rely upon that earlier finding and dismiss later-filed allegations 
relating to permit actions covered by the agreement.
---------------------------------------------------------------------------

    \268\ Id., section V.B.2.; Draft Recipient Guidance sections 
II.A.2. and 3.
    \269\ See Draft Revised Investigation Guidance, section V.B.2.
---------------------------------------------------------------------------

Takings
    Some commenters raised questions about ``takings'' of property 
without compensation and opportunities for permittees to achieve 
compliance.
    Response: As a general rule, permits are not compensable property 
rights. They are treated as conferring privileges rather than rights, 
because they may be revocable at the will of the government, they are 
generally nontransferable, and they are often issued for a limited 
term. On the other hand, permits sometimes are treated as property for 
due process purposes, requiring notice and hearing before they can be 
revoked.
    As the Draft Revised Investigation Guidance states when discussing 
measures that might be required as a result of a finding of 
noncompliance with Title VI, EPA believes it will be a rare situation 
where the permit that triggered the complaint is the sole reason a 
discriminatory effect exists. Therefore, denial of the permit at issue 
will not necessarily be an appropriate solution. Also, in order to 
establish a compensable taking, the governmental action generally must 
deny all economically viable use of the property in question. It is 
highly unlikely that a permit modification would deny all economically 
viable use of the property.
    As part of a voluntary compliance agreement, recipients may agree 
to mitigate the adverse impacts through permit modifications. If 
informal resolution and attempts at reaching voluntary compliance fail, 
the primary authority for an administrative remedy in EPA's Title VI 
implementing regulations and corresponding provisions in the Draft 
Revised Investigation Guidance concerns the denial, annulment, 
suspension, or termination of EPA assistance.\270\ Because this remedy 
would be imposed on a recipient of EPA assistance, the permittee would 
not be directly affected. Clearly, the recipient's programs and 
activities may relate to the permittee, but even if a recipient is 
found to be in violation of EPA's Title VI regulations, EPA's primary 
authority for an administrative remedy is directed toward the 
recipient. The regulations do not require EPA to seek a denial or 
revocation of the permittee's permit.
---------------------------------------------------------------------------

    \270\ 40 CFR 7.130(b); Draft Revised Investigation Guidance, 
section II.A.6.
---------------------------------------------------------------------------

    OCR may also explore other solutions authorized by law, such as 
referring a matter to DOJ for enforcement in court.\271\ If a court 
ordered remedy involved the initiation of a permitting action, EPA 
expects that the recipient would follow the procedures outlined in the 
relevant environmental law, thereby providing sufficient due process.
---------------------------------------------------------------------------

    \271\ 40 CFR 7.130(a); Draft Revised Investigation Guidance, 
section II.A.6.
---------------------------------------------------------------------------

Other Issues
    Issue: One commenter requested that EPA develop a Title VI 
complaint process flowchart. Another commenter requested clarification 
as to who would be responsible for implementing the Interim Guidance.
    Response: A flowchart that outlines the steps in the process 
described by EPA's Title VI regulations has been included as an 
appendix to the Draft Revised Investigation Guidance.
    OCR has the responsibility within EPA to process and review Title 
VI administrative complaints, and both the Interim Guidance and the 
Draft Revised Investigation Guidance are mainly directed at EPA staff 
in that office. However, OCR typically involves staff with appropriate 
expertise from other EPA offices and regions to assist in its 
investigations. The guidance also provides direction to these staff 
persons as they assist OCR in the investigation.

Impacts and the Disparate Impact Analysis

Substantial Impairment
    One commenter requested clarification as to what constitutes a 
``significant'' disparate impact, citing EPA's regulations that require 
a ``substantial impairment'' of program objectives to establish a 
disparate impact.
    Response: OCR has provided more detail and clarity in the Draft 
Revised Investigation Guidance about the process for determining 
whether an adverse disparate impact exists.\272\ However, given the 
infinite number of possible permutations of facts, allegations, and 
circumstances, defining an across-the-board standard of what level of 
harm or disparity constitutes ``significant'' is infeasible. Instead, 
the Draft Revised Investigation Guidance explains more clearly how OCR 
will determine whether it exists. The Draft Revised Investigation 
Guidance describes how EPA will use environmental statutes, 
regulations, policy, and science as measures for determining thresholds 
for what is adverse.\273\
---------------------------------------------------------------------------

    \272\ See Draft Revised Investigation Guidance, section VI.
    \273\ Id., section VI.B.4.
---------------------------------------------------------------------------

    EPA's Title VI regulations include a variety of prohibitions, only 
one of which uses the term ``substantial impairment.'' \274\ For 
example, the regulations prohibit recipients from using ``criteria or 
methods of administering its programs which have the effect of 
subjecting individuals to discrimination because of their race, color, 
[or] national origin.'' \275\ It is this

[[Page 39699]]

discriminatory effects regulation that is the focus of the Interim 
Guidance and the Draft Revised Investigation Guidance.
Scope and Extent of Adverse Impact Analysis Issues
---------------------------------------------------------------------------

    \274\ 40 CFR 7.35(b) (``A recipient shall not use criteria or 
methods of administering its programs which * * * have the effect of 
defeating or substantially impairing accomplishment of the 
objectives of the program with respect to individuals of a 
particular race, color, [or] national origin.'' (emphasis added).
    \275\ Id.
---------------------------------------------------------------------------

    Issue: Commenters were divided regarding both the degree to which 
adverse impacts must be ``significant'' before they can be considered 
under the Interim Guidance and whether the risk of adverse health 
impacts should be considered actionable.
    Response: To determine whether the impacts alleged in the complaint 
are sufficiently ``adverse'' to be cognizable under Title VI, OCR 
expects to focus its efforts on addressing adverse impacts that are 
``significant'' rather than on those that may be considered 
inconsequential. The Draft Revised Investigation Guidance provides more 
specificity about what constitutes a ``significant'' impact. Depending 
upon the facts and circumstances of the complaint, OCR will apply 
relevant tests to determine whether the alleged impact is 
significant.\276\ In fact, the Draft Revised Investigation Guidance 
specifically includes consideration of health impacts in terms of 
risk.\277\
---------------------------------------------------------------------------

    \276\ Draft Revised Investigation Guidance, section VI.B.4.
    \277\ See Draft Revised Investigation Guidance, section VI.B.3.
---------------------------------------------------------------------------

    Issue: One commenter said that any guidance that is developed 
regarding disparate impact should be subjected to a peer reviewed 
process.
    Response: As part of its identification and development of methods 
for conducting impact assessments, OCR submitted several example 
assessment tools for review by the EPA Science Advisory Board.\278\ 
These included approaches concerning the estimation of the magnitude 
and distribution of impacts and the identification of affected 
populations.
---------------------------------------------------------------------------

    \278\ The findings were presented in the December 1998 report, 
An SAB Report: Review of Disproportionate Impact Methodologies; A 
Review by the Integrated Human Exposure Committee (IHEC) of the 
Science Advisory Board (SAB). The report is avaialble at the Office 
of Civil Rights Web site at: http://www.epa.gov/civilrights/investig.htm.
---------------------------------------------------------------------------

Identifying the Affected Population
    Many commenters asked EPA to provide more guidance related to 
identifying the affected population.
    Response: The Draft Revised Investigation Guidance provides 
significantly more information about the process proposed to identify 
and determine the characteristics of the affected population than the 
Interim Guidance provided.\279\ The affected population, as defined in 
the Glossary, is the population that is determined to bear an adverse 
impact from the source(s) at issue. In section VI.B., and especially in 
subsection 5, of the Draft Revised Investigation Guidance, OCR 
describes the analysis it expects to use to define the affected 
population in investigations. Section VI also describes the process of 
conducting an analysis to determine whether a disparity exists between 
the affected population and an appropriate comparison population, and 
discusses comparison methods and criteria used in assessing the 
significance of any disparities identified.
---------------------------------------------------------------------------

    \279\ See Draft Revised Investigation Guidance, section VI.B.5.
---------------------------------------------------------------------------

Determining the Demographics of Populations
    Some comments concerned the manner in which EPA would determine the 
demographics of certain populations.
    Response: Title VI and EPA's implementing regulations prohibit 
discrimination on the basis of race, color, or national origin. Racial 
classifications described in the regulations include: (1) American 
Indian or Alaskan native; (2) Asian or Pacific Islander; (3) Black and 
not of Hispanic origin; (4) Hispanic; and (5) White, not of Hispanic 
origin.\280\ Additional subcategories based on national origin or 
primary language spoken may be used when appropriate.\281\
---------------------------------------------------------------------------

    \280\ 40 CFR 7.25.
    \281\ Id. at n.1.
---------------------------------------------------------------------------

    OCR intends to use the most accurate data readily available when 
determining the characteristics of the affected and comparison 
populations. In most cases, residential census data are expected to be 
the most accurate and relevant available demographic data, but other 
data sources will be used as needed. Generally, OCR expects to use 
residential census data in combination with geographic information 
systems and mathematical models to identify and characterize affected 
populations.\282\
---------------------------------------------------------------------------

    \282\ See Draft Revised Investigation Guidance, section VI.B.5.
---------------------------------------------------------------------------

Cumulative Impacts
    EPA received a number of comments concerning the role of cumulative 
impacts in the Interim Guidance. Some expressed support for considering 
cumulative impacts in determining whether an adverse disparate impact 
exists and others requested additional information. Some opposed 
considering cumulative impacts because they were concerned about how 
cumulative impacts could be quantified.
    Response: The Draft Revised Investigation Guidance provides more 
clarity about the process of identifying the scope of an adverse 
disparate impact analysis that OCR may conduct as part of an 
investigation. Rather than attempting to summarize that lengthy process 
here, readers should refer to the Draft Revised Investigation Guidance 
for an explanation of how OCR expects to evaluate allegations 
concerning cumulative impacts.\283\
---------------------------------------------------------------------------

    \283\ See Draft Revised Investigation Guidance, sections VI.B.2. 
and 3.
---------------------------------------------------------------------------

Commenter's Suggested Alternative Approach to Adverse Disparate Impact 
Analysis
    One commenter provided EPA with an alternative approach to simplify 
OCR's analysis of Title VI complaints. The primary elements of the 
proposal include: (1) Defining the affected area as a circle of radius 
one-half to one mile from the facility; (2) assessing the public health 
status of the affected population based on mortality, cancer, infant 
mortality and low birth weight rates; and (3) determining the health 
rate to be substandard when it deviates by 10 to 20 percent from the 
``standard'' (comparison population) rate. Permits to build or operate 
a new facility in any area with substandard health rates would be 
prohibited. The commenter asks whether this proposal could be adopted 
by OCR.
    Response: Both Title VI and EPA's implementing regulations prohibit 
discrimination on the basis of race, color, or national origin in the 
programs and activities of EPA financial assistance recipients. As a 
result, a finding of non-compliance with the statute or regulations 
requires a finding that the programs or activities of a recipient 
involved intentional discrimination or caused a discriminatory effect.
    The proposal does not appear to require any link between the 
adverse health effects and the programs or activities of a recipient. 
In addition, it does not consider any disparity on the basis of race, 
color, or national origin. While the proposal may warrant consideration 
as a way of identifying public health ``hot spots,'' it would not be an 
appropriate basis for OCR to make a finding of non-compliance with 
Title VI or EPA's implementing regulations.

[[Page 39700]]

Clarifications Regarding Disparity of Impact
    A number of commenters requested additional details regarding the 
disparate impact analysis. For instance, commenters requested that EPA 
provide additional details regarding the statistical analysis that will 
be conducted, the backgrounds of the experts that will be conducting 
the analysis, and what comparisons would be appropriate within the 
affected population.
    Response: OCR provided more specificity about the disparate impact 
analysis in the Draft Revised Investigation Guidance, including 
additional details about what constitutes disparity and options for 
selecting comparison populations.\284\ OCR intends to select an 
appropriate statistical or mathematical analysis based upon various 
factors, including the allegations and available data. That analysis 
will be performed or reviewed by those with the relevant professional 
training and expertise. The Draft Revised Investigation Guidance is not 
intended to comprehensively address every scenario that may arise in 
the interaction between Title VI, EPA's Title VI regulations, and 
environmental permitting. Given the infinite number of possible 
permutations of facts, allegations, and circumstances, such an approach 
is infeasible. Instead, the Draft Revised Investigation Guidance 
provides a framework explaining how EPA intends to implement its 
responsibilities under Title VI as a general matter. OCR then expects 
to apply the guidance's framework according to the specific facts and 
circumstances of each complaint.
---------------------------------------------------------------------------

    \284\ Draft Revised Investigation Guidance sections VI.B.5. and 
6.
---------------------------------------------------------------------------

    In terms of the appropriate comparison populations, the zoning or 
land use designation of an area has been offered as a possible basis on 
which to compare impacts and demographics. OCR does not expect to use 
those factors when evaluating an affected population against a 
comparison population. Consideration of zoning would place an 
inappropriate focus on the siting of facilities. The Interim Guidance 
and the Draft Revised Investigation Guidance focus on permitting. The 
impacts addressed by the guidance documents do not necessarily stay 
within areas that are zoned ``industrial''; they may affect 
``residential'' areas, ``commercial'' areas, and areas with other 
designations. In addition, many impacts are felt in areas designated 
for ``mixed-use,'' but that fact alone should not lead to reduced 
protections for the local residents. Therefore, an arbitrary comparison 
of populations with similar zoning would be inappropriate, as well as 
impractical.

Resolving Complaints and Justification

Remedial Measures/Mitigation
    Issue: Several commenters requested clarification on the process of 
mitigation as described in the Interim Guidance.
    Response: EPA's Title VI regulations call for OCR to pursue 
informal resolution of administrative complaints wherever 
practicable.\285\ The Agency expects that measures that reduce or 
eliminate alleged disparate impacts will be an important focus of the 
informal resolution process. Section IV of the Draft Revised 
Investigation Guidance contains a more detailed discussion of such 
measures, drawn heavily from the Title VI Implementation Advisory 
Committee report,\286\ than the Interim Guidance. Moreover, the Draft 
Recipient Guidance also discusses measures to reduce adverse disparate 
impacts in section II.B.6.
---------------------------------------------------------------------------

    \285\ 40 CFR 7.120(d)(2).
    \286\ See Report of the Title VI Implementation Advisory 
Committee: Next Steps for EPA, State, and Local Environmental 
Justice Programs, at 82-90 and appendix D (April 1999).
---------------------------------------------------------------------------

    Often, Title VI concerns are raised where a number of sources are 
contributing to the adverse effects communities believe they are 
suffering. For those communities, filing a Title VI complaint about a 
permit for a new facility or about the most recent modification to an 
existing one, is a way to focus attention on the cumulative impacts of 
a number of the recipient's permitting decisions. As the Draft Revised 
Investigation Guidance states, EPA believes it will be a rare situation 
where the permit that triggered the complaint is the sole reason a 
discriminatory effect exists; therefore, denial of the permit at issue 
will not necessarily be an appropriate solution. Efforts that focus on 
all contributions to the adverse disparate impact, not just the permit 
at issue, will likely yield the most effective long-term 
solutions.\287\
---------------------------------------------------------------------------

    \287\ See Draft Revised Investigation Guidance, sections I.C. 
and IV.B.
---------------------------------------------------------------------------

    For example, the Draft Revised Investigation Guidance and the Draft 
Recipient Guidance encourage recipients to identify geographic areas 
where adverse disparate impacts may exist and to enter into enforceable 
agreements (area-specific agreements) with the affected communities and 
stakeholders to reduce pollution impacts in those geographic areas over 
time.\288\
---------------------------------------------------------------------------

    \288\ Draft Revised Investigation Guidance, section V.B.2.; 
Draft Recipient Guidance, section II.A.2.
---------------------------------------------------------------------------

    Efforts to reduce impacts could include measures that are narrowly 
tailored toward contributing sources, including the permit at issue, 
using the recipient's existing permitting authorities. Such measures 
include changes in policies or procedures, additional pollution 
control, pollution prevention, offsets; and emergency planning and 
response. More broadly focused efforts might deal with the combined 
impacts of several contributing sources, taking into account both the 
approximate contributions and the degree to which the sources may be 
covered by various authorities available to the recipient.\289\
---------------------------------------------------------------------------

    \289\ Draft Revised Investigation Guidance, section IV.
---------------------------------------------------------------------------

    Issue: Several commenters questioned the legal basis for requiring 
mitigation.
    Response: As mentioned above, EPA's Title VI regulations call for 
OCR to pursue the informal resolution of administrative complaints 
wherever practicable.\290\ The term ``informal resolution'' refers to 
any settlement reached by the parties before a finding of noncompliance 
is issued. OCR expects to encourage measures to reduce and eliminate 
impacts in the course of achieving informal resolution.\291\ EPA hopes 
that the parties will be able to work together at an early stage 
because they will have more flexibility in this informal context to 
develop innovative solutions than later when remedial measures are 
required after a finding of noncompliance has been made. Measures 
developed by the recipient, local community, and other interested 
parties are likely to be the most direct way to resolve potential Title 
VI concerns. Both the Draft Revised Investigation Guidance and the 
Draft Recipient Guidance discuss measures to reduce or eliminate 
impacts.\292\
---------------------------------------------------------------------------

    \290\ See 40 CFR 7.120(d)(2).
    \291\ See Draft Revised Investigation Guidance, section IV; 
Draft Recipient Guidance, section II.B.6.
    \292\ Id.
---------------------------------------------------------------------------

    If OCR makes a finding of noncompliance with EPA's Title VI 
regulations, two potential remedies exist in EPA's administrative 
process--voluntary compliance or fund termination. Another option for 
EPA to ensure compliance is referring the matter to DOJ for 
litigation.\293\ Settlement after a formal determination of 
noncompliance is called ``voluntary compliance.'' \294\ Measures to 
reduce or eliminate impacts will be included as conditions in a 
voluntary compliance agreement. Recipients can either agree to the 
voluntary compliance conditions or risk losing EPA financial 
assistance.
---------------------------------------------------------------------------

    \293\ 40 CFR 7.130(a).
    \294\ 40 CFR 7.115(e) (indicating that recipient may voluntarily 
comply after formal determination of noncompliance).
---------------------------------------------------------------------------

Justification Issues
    Issue: Some commenters requested that EPA provide more detail as to 
what would constitute an adequate

[[Page 39701]]

justification and a less discriminatory alternative.
    Response: The Draft Revised Investigation Guidance clarifies and 
provides more detail about justification and less discriminatory 
alternatives.\295\ Determining what constitutes a legitimate 
justification will necessarily turn on the facts in the case at hand. 
Generally, the recipient would attempt to show that the challenged 
activity is reasonably necessary to meet a goal that is legitimate, 
important, and integral to the recipient's institutional mission.
---------------------------------------------------------------------------

    \295\ See Draft Revised Investigation Guidance, section VII.A.
---------------------------------------------------------------------------

    Because investigations conducted under the Draft Revised 
Investigation Guidance are about permitting decisions by environmental 
agencies, OCR expects to consider provision of public health or 
environmental benefits (e.g., waste water treatment plant) to the 
affected population to be an acceptable justification because such 
benefits are generally legitimate, important, and integral to the 
recipient's mission. The Draft Revised Investigation Guidance indicates 
that OCR will likely consider broader interests, such as economic 
development, from the permitting action to be an acceptable 
justification, if the benefits are delivered directly to the affected 
population and if the broader interest is legitimate, important, and 
integral to the recipient's mission. Also, in its evaluation of the 
offered justification, OCR will generally consider not only the 
recipient's perspective, but the views of the affected community in its 
assessment of whether the permitted facility, in fact, will provide 
direct, economic benefits to the community.
    A justification generally will not be accepted if it is shown that 
a less discriminatory alternative exists. A less discriminatory 
alternative is a comparably effective practice that causes less of a 
disparate impact than the challenged practice.\296\ Mitigation measures 
including, in some cases, additional permit conditions that would 
lessen or eliminate the demonstrated adverse disparate impacts, could 
be part of a less discriminatory alternative. Pollution prevention may 
be either used by the recipient as a mitigation measure, or raised by 
EPA or complainants as a less discriminatory alternative. OCR will 
likely consider cost and technical feasibility in its assessment of the 
practicability potential alternatives.
---------------------------------------------------------------------------

    \296\ See Elston v. Talladega County Bd. of Educ., 997 F.2d 
1394, 1407 (11th Cir. 1993), citing Georgia State Conference of 
Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).
---------------------------------------------------------------------------

    Issue: Other commenters asserted that a recipient should be allowed 
to justify an action before undergoing a mitigation analysis.
    Response: The Interim Guidance did not require the creation of 
mitigation plans before a finding. It merely suggested that recipients 
could consider establishing a plan to reduce the likelihood of a 
finding of a Title VI violation. The Draft Revised Investigation 
Guidance clarifies the process.\297\ Recipients are expected to have an 
opportunity to propose mitigation measures to address the problem, but 
those measures would not be required unless a finding of violation 
occurs. In that case, OCR would describe the measures that the 
recipient should take to come into voluntary compliance.
---------------------------------------------------------------------------

    \297\ See Draft Revised Investigation Guidance, section IV.
---------------------------------------------------------------------------

    EPA's Title VI regulations provide recipients with several 
opportunities to submit information.\298\ Nothing precludes recipients 
from including information about justification or mitigation measures 
in their written submissions. The recipient may offer a justification 
before mitigation measures are considered. However, the justification 
would not be considered acceptable if a less discriminatory alternative 
exists.
---------------------------------------------------------------------------

    \298\ See Draft Revised Investigation Guidance, sections II.B. 
and V.A.
---------------------------------------------------------------------------

    Issue: Other comments concerned EPA's role in identifying less 
discriminatory alternatives and approving justifications.
    Response: EPA must evaluate the sufficiency of proffered 
justifications, and the existence and validity of less discriminatory 
alternatives, because EPA determines whether a violation of EPA's Title 
VI regulations has occurred.
    Nonetheless, EPA may consult with complainants and other parties, 
as appropriate.

    Dated: June 15, 2000.
Ann E. Goode,
Director, Office of Civil Rights.
[FR Doc. 00-15673 Filed 6-26-00; 8:45 am]
BILLING CODE 6560-50-P