[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Notices]
[Pages 10625-10635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3448]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7875-9]


Draft Final Title VI Public Involvement Guidance for EPA 
Assistance Recipients Administering Environmental Permitting Programs 
(Draft Final Recipient Guidance)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Agency guidance.

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SUMMARY: EPA's Office of Civil Rights is soliciting comments on the 
Draft Final Title VI Public Involvement Guidance for EPA Assistance 
Recipients Administering Environmental Permitting Programs (Draft Final 
Recipient Guidance). This guidance significantly revises the previous 
Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Draft Recipient Guidance) issued for 
public comment in June 2000. The revisions made in this document 
reflect and include public involvement considerations suggested in 
comments the Office of Civil Rights (OCR) received on the Draft 
Recipient Guidance, at public participation sessions OCR held in 
various states over the last two years, and from other public 
involvement-related discussions and information. This guidance has been 
developed for recipients of EPA assistance that implement environmental 
permitting programs. It discusses various approaches and suggests tools 
recipients may wish to use to help enhance the public involvement 
aspects of their current permitting programs and reduce potential 
issues related to Title VI of the Civil Rights Act of 1964 (Title VI) 
and EPA's regulations implementing Title VI.

[[Page 10626]]


DATES: Comments on this draft final guidance must be submitted on or 
before 30 days from the date of this publication in the Federal 
Register. EPA will review all timely comments and determine if 
revisions to the guidance are necessary.

ADDRESSES: Written comments on the guidance document should be mailed 
to: Title VI Recipient Guidance, U.S. 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, address and optionally, 
your affiliation.

FOR FURTHER INFORMATION CONTACT: Karen Randolph, U.S. Environmental 
Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania 
Avenue NW., Washington, DC 20460-1000, telephone (202) 343-9679.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Preamble
B. Draft Final Title VI Public Involvement Guidance for EPA 
Assistance Recipients Administering Environmental Permitting 
Programs

A. Preamble

    Today's Federal Register document contains the guidance document 
entitled, the Draft Final Title VI Public Involvement Guidance for EPA 
Assistance Recipients Administering Environmental Permitting Programs 
(Draft Final Recipient Guidance). It offers recipients \1\ of U.S. 
Environmental Protection Agency (EPA) assistance\2\ that implement 
environmental permitting programs suggestions on public involvement 
approaches they may use to help enhance their current permitting 
programs to better address potential issues related to Title VI of the 
Civil Rights Act of 1964, as amended, (Title VI) and EPA's Title VI 
implementing regulations.\3\ The Draft Final Recipient Guidance 
addresses and summarizes major public involvement considerations 
suggested in comments EPA's Office of Civil Rights (OCR) received on 
the Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Draft Recipient Guidance), comments 
and suggestions stakeholders made at public participation sessions OCR 
held in various states in 2003-2004, and other public involvement-
related resources. This Draft Final Recipient Guidance will replace the 
Draft Recipient Guidance which was issued in June 2000.\4\ Much of the 
information in the Draft Final Recipient Guidance is also based on 
EPA's commitment to early and meaningful public involvement throughout 
the entire permitting process.
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    \1\ `Recipient' is defined as ``any state or its political 
subdivision, any instrumentality of a state or its political 
subdivision, any public or private agency, institution, 
organization, 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.
    \2\ EPA assistance is defined as ``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: Funds; Services of personnel; or Real or personal property 
or any interest in or use of such property, including Transfers or 
leases of such property for less than fair market value or for 
reduced consideration; and Proceeds for a subsequent transfer or 
lease of such property if EPA's share of its fair market value is 
not returned to EPA.''
    \3\ Title VI of the Civil rights Act of 1964, Pub. L. 88-352, 78 
Stat. 241 (codified as amended at 42 U.S.C. 2000d to 2000-7); 49 CFR 
Part 7.
    \4\ 65 Fed. Reg. 39655 (2000).
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    Entities applying for EPA financial assistance submit assurances 
with their applications stating that they will comply with the 
requirements of EPA's regulations implementing Title VI with respect to 
their programs or activities.\5\ When the recipient receives EPA 
assistance, they accept the obligation to comply with EPA's Title VI 
implementing regulations. Persons, or their authorized representatives, 
who believe Federal financial assistance recipients are not 
administering their programs in a nondiscriminatory manner may file 
administrative complaints with EPA or other relevant Federal agencies. 
The complaint must be filed within 180 calendar days of a particular 
action taken by the recipient (such as the issuance of an environmental 
permit) that allegedly has a discriminatory purpose or effect.\6\
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    \5\ 40 CFR 7.80, EPA Form 4700-4 and Standard Form 424.
    \6\ The filing or acceptance for investigation of a Title VI 
complaint does not suspend an issued permit. Title VI complaints 
concern the programs and activities 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.
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    The Draft Recipient Guidance was published concurrently with the 
Draft Revised Guidance for Investigating Title VI Administrative 
Complaints Challenging Permits (Draft Revised Investigation Guidance) 
\7\ in June 2000. Prior to issuing the Draft Recipient Guidance, EPA 
considered public input, the work of the Title VI Implementation 
Advisory Committee of EPA's National Advisory Council for Environmental 
Policy and Technology (NACEPT),\8\ the work of the Environmental 
Council of States (ECOS),\9\ particularly its October 9, 1998 draft 
Proposed Elements of State Environmental Justice Programs, and input 
from available state environmental justice programs. The Draft 
Recipient Guidance discussed approaches to complaints alleging 
discrimination during the public participation portion of the 
permitting process, as well as complaints alleging discriminatory human 
health effects, environmental effects and adverse disparate impacts 
resulting from the issuance of permits. The Draft Recipient Guidance 
also discussed how these approaches could be used to address concerns 
before the filing of complaints. The Draft Revised Investigation 
Guidance discussed how OCR would process complaints alleging adverse 
disparate health impacts from the issuance of environmental permits. 
Both documents discussed issues regarding disparate and adverse 
impacts. To avoid redundancy, OCR decided that the Final Title VI 
Public Involvement Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Final Recipient Guidance) would only 
focus on approaches recipients can use to enhance the public 
involvement portion of their permitting programs. Discussions on 
disparate and other adverse impacts will be included in the Revised 
Investigative Guidance which may be finalized at a later date. Today, 
EPA is issuing the Draft Final Recipient Guidance.
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    \7\ 65 FR 39650 (2000).
    \8\ NACEPT consists of a representative cross-section of EPA's 
partners and principle constituents who provide advice and 
recommendations to the Administrator of EPA on a broad range of 
environmental policy, technology, and management issues regarding 
new strategies that the Agency is developing. The Council is a 
proactive, strategic panel of experts that identifies emerging 
challenges facing EPA and responds to specific charges requested by 
the Administrator and the program office managers.
    \9\ The mission of ECOS involves championing the role of the 
States in environmental protection and articulating state positions 
to Congress, federal agencies and the public on environmental 
issues. This mission is often advanced by writing letters, making 
presentations, and working in coalition with other groups to 
advocate on behalf of the states on environmental matters.
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B. Draft Final Title VI Public Involvement Guidance for EPA Assistance 
Recipients Administering Environmental Permitting Programs

I. Introduction
    A. Purpose of this Guidance

[[Page 10627]]

    B. Title VI of the Civil Rights Act of 1964
    C. EPA's Guiding Principles for Title VI for the Recipient 
Guidance
    D. The Interface between Public Involvement and Title VI
    E. Scope and Flexibility
II. Approaches to Meaningful Public Involvement
    A. Developing and Implementing an Effective Public Involvement 
Plan
    B. Training Staff
    C. Involving the Public Early and Often Throughout the 
Permitting Process
    D. Encouraging Stakeholder and Intergovernmental Involvement
    E. Equipping Communities with Tools to Help Ensure Effective 
Public Involvement
    F. Making Assistance/Grants Available to the Public
    G. Using Alternative Dispute Resolution Techniques
III. Suggested Approaches for Reducing Some Common Title VI 
Complaints
    A. Language Issues
    B. Siting Issues
    C. Insufficient Public Notices
    D. Information Repository
IV. Evaluating Approaches for Meaningful Public Involvement
V. Due Weight
VI. Conclusion
VII. Additional Resources

I. Introduction

A. Purpose of this Guidance

    This guidance is written for recipients \10\ of U.S. Environmental 
Protection Agency (EPA) assistance \11\ that administer environmental 
permitting programs. It offers suggestions on approaches and ways to 
address situations that might reduce the likelihood of the filing of 
complaints alleging public involvement violations of Title VI of the 
Civil Rights Act of 1964, as amended (Title VI) \12\ and EPA's Title VI 
implementing regulations.\13\ The approaches discussed in this guidance 
may be used to create new public involvement activities or to enhance 
existing public involvement activities that address allegations of 
discriminatory public participation practices during the permitting 
process.
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    \10\ Any state or its political subdivision, any instrumentality 
of a state or its political subdivision, any public or private 
agency, institution, organization, entity, or 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.
    \11\ EPA assistance is defined as ``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: Funds; Services of personnel; or Real or personal property 
or any interest in or use of such property, including Transfers or 
leases of such property for less than fair market value or for 
reduced consideration; and Proceeds for a subsequent transfer or 
lease of such property if EPA's share of its fair market value is 
not returned to EPA.''
    \12\ Pub. L. 88-352, 78 Stat. 241 (codified as amended at 42 
U.S.C. 2000d to 2000d-7).
    \13\ 40 CFR part 7, Nondiscrimination in Programs Receiving 
Federal Assistance from the Environmental Protection Agency.
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    This is a guidance document, not a regulation. This document offers 
suggestions to recipients about enhancing public involvement processes 
in environmental permitting, and addressing potential Title VI issues 
before complaints arise. Recipients remain free to use approaches other 
than the ones suggested here. In addition, EPA recipients may consider 
other approaches and ideas, either on their own or at the suggestion of 
interested parties. Interested parties are free to raise questions and 
objections regarding this guidance and the appropriateness of using 
these recommendations in a particular situation, and EPA will consider 
whether the recommendations are appropriate in that situation. This 
document does not change or act as a substitute for any legal 
requirements. Rather, the sources of authority and requirements for 
Title VI programs are the relevant statutory and regulatory provisions.

B. Title VI of the Civil Rights Act of 1964

    Title VI of the Civil Rights Act of 1964 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. However Congress directed that its policy 
against discrimination by recipients of Federal assistance be 
implemented, in part, through administrative rulemaking. Since 1964, 
regulations promulgated by Federal agencies implementing Title VI have 
uniformly prohibited conduct or actions by a recipient which have the 
effect of discriminating on the basis of race, color or national 
origin. 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.'' \14\
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    \14\ Alexander v. Choate, 469 U.S. 287, 293-94 (1985).
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    EPA initially issued Title VI regulations in 1973 and revised them 
in 1984. Applicants for EPA financial assistance must submit an 
assurance with their application stating they will comply with the 
requirements of EPA's regulations implementing Title VI with respect to 
their programs or activities.\15\ Applicants must also adopt grievance 
procedures that assure the prompt and fair resolution of complaints 
which allege violations of EPA's Title VI regulations.\16\ When an 
applicant receives EPA assistance, they may not issue permits that are 
intentionally discriminatory, or use ``criteria or methods of 
administering its program or activity which have the effect of 
subjecting individuals to discrimination because of their race, color, 
or national origin.'' \17\ Persons, or their authorized 
representatives, who believe Federal financial assistance recipients 
are not administering their programs in a nondiscriminatory manner may 
file administrative complaints with EPA or other relevant Federal 
agencies. The complaint must be filed within 180 calendar days of a 
particular action taken by the recipient (such as the issuance of an 
environmental permit) that allegedly has a discriminatory purpose or 
effect.\18\ The primary means of enforcing compliance with Title VI is 
through voluntary compliance agreements. Suspension or termination of 
funding is a means of last resort.
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    \15\ 40 CFR 7.80, EPA Form 4700-4 and Standard Form 424.
    \16\ 40 CFR 7.90
    \17\ 40 CFR 7.35(b).
    \18\ The filing or acceptance for investigation of a Title VI 
complaint does not suspend an issued permit. Title VI complaints 
concern the programs and activities being implemented by Federal 
financial assistance recipient, and any EPA investigation of such a 
complaint primarily concerns the actions of recipients rather than 
permittees. While particular permitting decisions may act as a 
trigger for a complaint, allegations may involved wider range of 
issues or alleged adverse disparate impacts within the legal 
authority of recipients.
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    Executive Order 12250 directs Federal agencies to issue appropriate 
Title VI implementing directives, either in the form of policy guidance 
or regulations consistent with requirements prescribed by the Attorney 
General.\19\ This guidance was developed as a result of the nature of 
Title VI complaints received in EPA's Office of Civil Rights coupled 
with requests for guidance from state and local agencies. This guidance 
focuses on public involvement approaches recipients may use to help 
reduce the likelihood of the public filing Title VI complaints.
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    \19\ Executive Order No. 12250, 45 FR 72995 (1980) (section 1-
402).
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C. EPA's Guiding Principles for Title VI for the Recipient Guidance

    To ensure stakeholder involvement in the development of the Draft 
Recipient Guidance, EPA established a Title VI Implementation Advisory 
Committee

[[Page 10628]]

(Title VI Advisory Committee) under the National Advisory Council for 
Environmental Policy and Technology in March 1998. The Title VI 
Advisory Committee was comprised of representatives from communities, 
environmental justice groups, state and local governments, industry, 
and other interested stakeholders. EPA asked the committee to review 
and evaluate existing techniques that EPA funding recipients could use 
to administer environmental permitting programs in compliance with 
Title VI. Techniques evaluated could include tools for assessing 
potential Title VI concerns and mitigating impacts where they occur.
    Core components of the Recipient Guidance are based on several 
threshold principles which members of the Title VI Advisory Committee 
included in their April 1999, Report of the Title VI Implementation 
Advisory Committee: Next Steps for EPA, State, and Local Environmental 
Justice Programs.\20\ As a result, EPA established guiding principles 
for implementing Title VI and developing the draft guide. In 
implementing Title VI and developing this final guidance, EPA is 
reaffirming its commitment to the following principles:
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    \20\ For a copy of this report, see: http: www.epa.gov/civilrights/t6faca.htm.
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     All persons regardless of race, color or national origin 
are entitled to a safe and healthful environment.
     Strong civil rights enforcement is essential in preventing 
Title VI violations and complaints.
     Enforcement of civil rights laws and environmental laws 
are complementary, and can be achieved in a manner consistent with 
sustainable economic development.
     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.
     Meaningful outreach and public participation early and 
throughout the decision-making process is critical to identify and 
resolve issues, and to also assure proper consideration of public 
concerns.
     Intergovernmental and innovative problem-solving provide 
the most comprehensive response to many concerns raised in Title VI 
complaints.

D. The Interface Between Public Involvement and Title VI

    Because public involvement plays a critical role in understanding 
and assessing how issues affect a community, meaningful public 
involvement should be an integral part of the permit decision-making 
process. Meaningful public involvement consists of informing, 
consulting, and working with communities at various stages of the 
permitting process to address their concerns. Appropriate collaboration 
during the permitting process can foster trust, and help establish 
credible, solid relationships between permitting agencies and 
communities. Such collaboration may serve to ensure that concerns are 
identified and addressed in a timely manner to possibly reduce the 
filing of some Title VI complaints.
    The fundamental premise of EPA's 2003 Public Involvement Policy is 
that ``EPA should continue to provide for meaningful public involvement 
in all its programs, and consistently look for new ways to enhance 
public input. EPA staff and managers should seek input reflecting all 
points of view and should carefully consider this input when making 
decisions. EPA also should work to ensure that decision-making 
processes are open and accessible to all interested groups, including 
those with limited financial and technical resources, English 
proficiency, and/or past experience participating in environmental 
decision-making. Such openness to the public increases EPA's 
credibility, improves the Agency's decision-making processes, and can 
impact final decision outcomes. At the same time, EPA should not accept 
any recommendation or proposal without careful, critical examination.'' 
\21\
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    \21\ For a copy of this report, see: http://www.epa,gov/
publicinvolvement/ policy2003/final policy, pdf.
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    In 1999 the Office of Solid Waste conducted a series of seven case 
studies to determine if the redevelopment of EPA Brownfields \22\ 
Pilots had been impeded by Title VI complaints, and to address concerns 
of whether these complaints may deter businesses from redeveloping 
Brownfields sites. The study, ``Brownfields Title VI Case Studies,'' 
\23\ indicated that community residents are not likely to file Title VI 
complaints when the redevelopment process provides for early and 
meaningful community involvement, and creates a benefit for the local 
community. In several of the case study Pilots, communities were 
involved in identifying and helping to resolve issues during the early 
stages of the process which helped build trust between stakeholders and 
a sense of ownership for community members. According to those 
interviewed, community outreach and involvement served to prevent the 
filing of Title VI complaints and other opposition to development 
projects.
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    \22\ EPA defines Brownfields as real property that is expanded, 
redeveloped, or reused which may contain or potentially contain a 
hazardous substance, pollutant or contaminant. Cleaning and 
reinvesting these properties take development pressures off of 
undeveloped, openland which help to improve and protect the 
environment. For more information on Brownfields Cleanup and 
Redevelopment, see: http://www.epa.govswerosps/bf/index.html
    \23\ For a copy of this report, see: http://www.epa.gov/oswer/
ej/ejndx.htm#titlevi or call the hotline at 1-800-424-9346.
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    The interface between public involvement and Title VI often arises 
when racial or ethnic communities believe that they've been 
discriminated against as a result of a decision made in the permitting 
process. OCR believes that many of these assertions of discrimination 
arise from a failure to adequately involve the public in the pre-
decisional process prior to permit issuance. In situations such as 
this, a finding of discrimination in the substantive outcome of a 
process, such as discriminatory human health or environmental effects 
is not necessary. Violations of Title VI or EPA's Title VI regulations 
can be based solely on discriminatory actions in the procedural aspects 
of the permitting process. Many Title VI complaints center around 
allegations of discrimination that may have been prevented, mitigated, 
or resolved if certain public involvement practices had been 
implemented by recipient agencies. OCR believes that if recipients 
focus on early, inclusive and meaningful public involvement throughout 
the entire permitting process, the likelihood of complaints alleging 
discrimination in the public involvement process, will be reduced.

E. Scope and Flexibility

    This guidance was written at the request of the states and is 
intended to offer suggestions to help state and local recipients of EPA 
financial assistance develop and enhance the public involvement portion 
of their existing permitting programs. This guidance offers a flexible 
framework of public involvement approaches. The information and tools 
discussed in this guidance include proactive public involvement 
activities which EPA recipients may use to help better address 
situations that might otherwise result in complaints filed alleging 
violations of Title VI and EPA's Title VI implementing regulations.
    EPA knows that because recipients may have different Title VI 
concerns in communities within their jurisdiction, different levels of 
resources, and different organizational structures, a ``one-size-fits-
all'' Title VI public involvement approach will not

[[Page 10629]]

adequately address every program's needs. Recipients are therefore 
encouraged to use the activities or approaches in this guidance that 
will be most beneficial in addressing each situation accordingly. While 
this guidance is intended to focus on issues related to public 
involvement in environmental permitting, recipients may also consider 
developing proactive approaches to promote equitable compliance 
assurance and enforcement of environmental laws within individual 
jurisdictions. Even though recipients are not required to implement the 
Title VI public involvement approaches described in this guidance, they 
are required to operate their programs in compliance with the non-
discrimination requirements of Title VI and EPA's implementing 
regulations.

II. Approaches to Meaningful Public Involvement

    This guidance suggests a number of public involvement approaches or 
elements recipients may want to consider adopting and implementing to 
help address Title VI related concerns in their permitting programs. 
The approaches described here are not intended to be mutually 
exclusive. The objective of these approaches is to have recipients 
fully engage as many members of the affected community as possible in 
the discussions and decisions made regarding issues in their community. 
Because of differences in culture, levels of experience, knowledge, and 
financial resources, recipients are encouraged to combine portions of 
several, or use as many approaches to the extent appropriate to satisfy 
their program needs. Recipients may couple these approaches with 
existing approaches already in use to better implement their Title VI 
programs. Recipients are also encouraged to develop and implement 
additional approaches not mentioned in this guidance. OCR may consider 
the outcomes of any approaches in the analysis of a Title VI complaint 
that relates to programs, activities or methods of administration.\24\ 
Suggested approaches are listed below.
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    \24\ For further discussion of the concept of giving ``due 
weight'' to a recipient's compliance efforts in the context of a 
Title VI complaint, see Section V.
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A. Developing and Implementing an Effective Public Involvement Plan

    A Public Involvement Plan (PIP) is a document that serves as the 
basic foundation of any good public involvement program. PIPs identify 
community concerns and discuss the approaches recipients plan to take 
to address those concerns through various outreach activities. An 
effective PIP includes discussions of what recipients will do to ensure 
that the needs and concerns of the affected community are addressed. In 
addition, an effective PIP strives to keep the community informed of 
the public involvement opportunities available to them during the 
decision-making process. If implemented properly, an effective PIP will 
expedite the flow of information for unexpected events, answer basic 
questions on issues related to the community's concerns, and help 
ensure better decision outcomes to benefit the affected community. 
Equally important, an effective PIP will provide members of the 
affected communities with a sense of partnership in the decision-making 
process underlying the permitting process. For these reasons, 
communities and other affected groups should be included in the 
development of the PIP. Recipients may decide to take the lead in 
contacting the necessary groups and developing their PIP as an agency, 
or may use a neutral third party to convene the relevant groups and 
facilitate the process. Either way, communities and all those affected 
by the decision outcome should be involved in developing the PIP, as 
well as ensuring that the planning efforts of the recipient agency 
address those issues that are important to them.\25\ An effective PIP 
will include the following information:
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    \25\ For suggestions on how to develop a Public Involvement 
Plan, see: http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/
manual.htm, http://www.epa.gov/superfund/tools/cag/ci--handbook.pdf, 
and http://web.em.doe.gov/ftplink/public/doeguide.pdf.
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    (1) An overview of the recipient's plan of action for addressing 
the community's needs and concerns,
    (2) A description of the community (including demographics, 
history, and background),
    (3) A contact list of agency officials with phone numbers and email 
addresses to allow the public to communicate via phone or internet,
    (4) A list of community's concerns (past and present),
    (5) A detailed plan of action (outreach activities) recipient will 
take to address concerns,
    (6) A contingency plans for unexpected events,
    (7) Location(s) where public meetings will be held,
    (8) Contact names for obtaining translation of documents and/or 
interpreters for meetings,
    (9) Local media contacts; and
    (10) Location of the information repository.
    A PIP may change from one affected community group to another or 
for the same community group over time depending on the types of 
facilities in the community and the environmental issues faced by the 
community. PIPs are public documents that should always be available 
for public viewing. PIPs should be living documents that can easily be 
revised at any time to effectively address the needs and concerns of 
the affected community. Because of the informative/exchange age in 
which we live, PIPs should be made available for the public in hard 
copy as well as electronically by way of the Internet. PIPs should 
contain web addresses of agency officials to allow the public the 
ability to communicate via the internet.

B. Training Staff

    To understand the importance of building relationships with 
communities, recipients may need to make internal commitments to tailor 
their programs so that public involvement becomes a part of the culture 
of how staff are trained and programs operate. A successful public 
involvement program should consist of a team of knowledgeable agency 
staff (possibly from different program offices within the recipient 
agency) who are committed to, and have the ability to reach out and 
engage the community early in the permitting process. Because the 
public may sometimes harbor frustration towards public agency officials 
who may not be certain about how to properly address an issue within 
the scope of a public meeting, it is critical for those on the public 
involvement team to have broad-based skills. Such skills include 
knowing how to communicate, understand, and address concerns of the 
general public. In addition, the team should be able to work well 
together and make sure that everyone thoroughly understands and is able 
to articulate agency policy, perspectives, and operating procedures of 
their program in a manner which the public can understand. To be most 
effective, the public involvement team should include at a minimum, 
staff capable of serving in permitting and community liaison roles. 
Although most staff may not have readily acquired public involvement 
understanding or outreach skills to communicate and work out disputes 
between their agency and the public in a polished manner, through 
training, many can acquire them.
    Training should include ensuring that there is a thorough knowledge 
of all of the applicable requirements as well as how to engage the 
public throughout the

[[Page 10630]]

entire permitting process. Team members or program staff should know 
and be able to explain ``what to do, how to do it, and when to do it'' 
for the programs they work in. In addition, training should include 
sessions on how to actively listen to the public's concerns, the 
importance of seriously considering the public's opinions, and 
addressing the public's questions in an understandable, prompt and 
respectful manner. Training that emphasizes these points among others 
may reduce the likelihood of controversy, permitting delays and the 
filing of Title VI complaints. While training alone does not guarantee 
that delays in the permitting process or the filing of Title VI 
complaints will no longer occur, it is a helpful adjunct to any dispute 
avoidance and resolution process.
    Basic elements for an effective public involvement training program 
include:
     A review of EPA's Title VI regulations and how those 
regulations apply and are addressed in the context of environmental 
permitting programs;
     Step by step training on how to explain the applicable 
environmental program regulations to the public in a clear and concise 
manner;
     Cultural and community relations sensitization;
     How to engage in a dialogue and collaboration, as well as 
how to build and maintain trust and mutual respect with communities;
     Skills and techniques to enable staff to effectively 
address community concerns in a clear and concise manner;
     A basic use of available technological communication tools 
such as the internet, databases, GIS tools and site maps, etc. to help 
identify and address potential issues in affected communities that may 
give rise to Title VI concerns; and
     Alternative dispute resolution techniques to enable staff 
to design and carry out a collaborative and informal process that can 
help resolve Title VI concerns.\26\
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    \26\ See section II. G, `Using Alternative Dispute Resolution 
Techniques'.
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C. Involving the Public Early and Often Throughout the Permitting 
Process

    Public involvement done early and often, is essential for the 
success of any permitting program. Public input is a valuable element 
which can influence decisions made in communities hosting proposed and 
permitted facilities. Early involvement is not only helpful to 
communities, but to recipients as well, because it encourages 
information exchange and gives time for both parties to consider and 
better understand the others viewpoints before actual decisions are 
made.
    Some regulations require permitting programs to include public 
involvement opportunities during certain stages of the permitting 
process. While such requirements are designed to ensure that community 
input is obtained at critical stages of the process, the public may 
sometimes feel as though these opportunities do not include them as 
active, ongoing partners. Recipients should tailor and integrate public 
involvement practices that engage communities into as many stages of 
the process as appropriate, so that public involvement becomes more of 
a ``culture'' of how agencies think and operate, as opposed to a list 
of measures to check off as they are completed. Examples of ways to 
encourage early public involvement include:
     When soliciting community input regarding upcoming 
decisions, take steps to get feedback from as many members of the 
affected community as possible, prior to the meeting. This may mean 
finding out from community members, who will and will not attend the 
meeting. Based on that information, provide alternative means of 
participating for those community members who would not be able to 
attend the meeting. For example, some members may want to, and have the 
time to attend every meeting to hear discussions of the issues every 
step of the way; while others, due to time constraints, would be 
satisfied submitting written comments or completing agency 
questionnaires regarding the issues, while trusting that their opinions 
and concerns will be considered during discussions and when decisions 
are made.
     Requiring facilities to hold pre-application meetings with 
the public prior to submitting their application to the permitting 
agency. Such an activity, which is required in some programs, can open 
the dialogue between the permit applicant and the community in the very 
early stages of the process. This gives the facility an opportunity to 
share information with the community and hear and respond to their 
concerns with greater sensitivity prior to submitting the permit 
application.
    Involving the public in identifying potential issues upfront and in 
discussions regarding possible solutions may help promote ``ownership'' 
of decisions and policies made affecting their community. This practice 
can help maintain community support over the life of the permit. Even 
though some decisions may not always fully reflect the community's 
views, if communities are involved early and throughout the process, 
they may be more willing to accept the decisions made and continue to 
participate in discussions to help prevent future issues. Such 
community involvement may help reduce the likelihood of communities 
challenging permit decisions toward the end of the permitting process, 
or filing Title VI complaints alleging discrimination.

D. Encouraging Stakeholder and Intergovernmental Involvement

    Stakeholder involvement is the process of bringing together those 
people or groups who may be affected by decisions made regarding issues 
in a community. Stakeholder groups identify, discuss and work toward 
resolving issues in a collaborative manner. Groups may include but are 
not limited to communities, businesses, environmental justice groups, 
Federal, state and local governments, tribes, academia, and 
environmental and trade organizations. Stakeholder involvement is vital 
in establishing and maintaining a successful public involvement 
program. Effective stakeholder involvement ensures that diverse 
interests are considered and gives community members opportunities to 
take active roles to effectively contribute and influence decisions 
affecting them and their community. As stakeholders continue to work 
together, they become more familiar with the character of the community 
and are better able to collaboratively mitigate or resolve issues as 
they arise.
    Depending on the scope of authority, resources and expertise, the 
representatives in stakeholder groups can be very broad. It is 
important to plan and carefully consider beforehand, which stakeholders 
to include in the meetings, and to seek out the groups and individuals 
who will be most affected by the proposed action. Contacting some 
groups and individuals may be difficult because of their cultural or 
economic lifestyles, while locating and including other groups will be 
easier due to their known interest in the decision outcome. For 
instance, some Title VI concerns may involve zoning or traffic 
patterns. Collaborating with the governmental units responsible for 
regulating zoning and traffic patterns, along with the communities that 
will be affected by any new potential driving routes, may increase the 
likelihood of achieving more effective solutions to concerns raised in 
the Title VI context. The earlier all appropriate parties are 
identified, and brought into the process, including other governmental 
agencies, the greater the likelihood of reaching effective solutions.

[[Page 10631]]

E. Equipping Communities With Tools To Help Ensure Effective Public 
Involvement

    Often the public does not get involved in decision-making because 
of their lack of understanding or knowledge of issues affecting their 
community. Alternatively, the public may not articulate or formulate 
their concerns in a manner that clearly fits into the decision-making 
process underlying the issuance of a permit. As a result, the public 
feels as if their views were not valued or seriously considered when 
final permit decisions were made. It is important that the public be 
equipped with necessary tools to allow them to effectively participate 
in the permit decision-making process. Training should be offered to 
educate the public on process and basic technical issues that are 
relevant in making permitting decisions. Training that emphasizes the 
procedures, options and available information, may encourage community 
members to assume a more active role when participating in permitting 
discussions affecting them and their community. Doing so can affect how 
issues are resolved at the local and state levels. For instance, the 
benefits of holding educational workshops that clarify public 
involvement opportunities in the permitting process would create a 
greater understanding of the permitting process by the public and may 
increase the level of public involvement; which could lead to a 
reduction in the number of Title VI complaints filed. An effective 
training/information program for communities may include the following:
     An information packet with useful information or facts 
sheets regarding applicable environmental regulations, the public 
involvement opportunities in the different environmental permitting 
programs, and the important role community involvement plays in helping 
to address community concerns early in the permit decision-making 
process, as opposed to later in a Title VI complaint.
     Targeted or one-day training sessions on different subject 
matters relating to public involvement and permitting. These sessions 
could include presentations/discussions on the importance of public 
involvement or a walk through of steps included in the permit review 
stage, while focusing on public involvement options and opportunities 
in the permitting process. For example, such a session could consist of 
discussions on the types of information needed to review a pending 
permit and points on how to prepare effective technical and legal 
comments.
     Specific ``how to'' sessions for the public that 
illustrate through role playing how they can effectively participate 
and influence decisions during the public involvement process.

F. Making Assistance/Grants Available to the Public

    The complex and technical nature of many permitting programs may 
sometimes impede effective public involvement during the permitting 
process. To help bridge the gap in capacity between community groups 
and other stakeholders, several agencies have begun to provide 
resources in the form of grants and free technical assistance. These 
types of educational resources serve to help empower communities to 
better equip them to actively participate in discussions and offer 
solutions to help address potential Title VI issues in their community.
    Grants such as Technical Assistance Grants (TAGs) \27\ and 
assistance through programs such as Technical Outreach Services for 
Communities (TOSC) \28\ have been very successful in educating 
communities on technical and process issues. In addition to grants, 
local colleges and universities within the communities can also serve 
as a major resource because of their technical expertise, research 
capabilities and historical knowledge of issues faced by the affected 
communities in the past.
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    \27\ A Technical Assistance Grant (TAG) provides money for 
activities that help communities participate in decision making at 
eligible Superfund sites. An initial grant up to $50,000 is 
available to qualified community groups so they can hire independent 
technical advisors to interpret and help them understand technical 
information about their site. TAGs may also be used to attend 
approved training and obtain relevant supplies and equipment. For 
more information, see http://www.epa.gov/superfund/tools/tag/
index.htm.
    \28\ The Technical Outreach Services for Communities (TOSC) 
program provides free, independent, non-advocate, technical 
assistance to communities living near hazardous waste contaminated 
sites. The goal of the TOSC program is to help communities 
understand the underlying technical issues associated with 
contaminated sites in their neighborhoods so that they may be able 
to substantively participate in the decision-making process 
regarding issues in their community. For more information on TOSC, 
see: http://www.epa.gov/superfund/tools/tosc/index.htm.
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G. Using Alternative Dispute Resolution Techniques

    The ability to address potential impacts in a timely and 
collaborative fashion 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 recipients to consider and use Alternative Dispute 
Resolution (ADR) \29\ techniques where appropriate to prevent and 
address concerns regarding public involvement in the permitting 
process. ADR refers to voluntary procedures used to prevent and settle 
controversial issues by developing and implementing an outcome 
agreeable to all parties. The goal of ADR is for stakeholders to 
collaborate and resolve issues acceptable to everyone involved.
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    \29\ For more information on ADR techniques, contact EPA's 
Conflict Prevention and Resolution Center at http://www.epa.gov/adr.
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    ADR includes using a wide range of processes to resolve 
controversial issues. All ADR techniques involve a neutral third party 
who assists others in designing and conducting a process for reaching 
possible agreement. The neutral third party should not have a stake in 
the substantive outcome of the process. Often the use of ADR includes 
negotiation of issues between parties to reach an acceptable solution. 
Effective ADR can result 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. Typically, all aspects of ADR are 
voluntary, including the decision to participate, the type of process 
used, and the content of any final agreement. Examples of ADR 
approaches that may be particularly relevant for Title VI concerns 
include:
     Facilitation--Facilitation is a process used to help 
parties constructively discuss complex or potentially controversial 
issues. Facilitators are often used to guide meetings, design 
approaches for discussing issues, improve communication between 
parties, create options, keep the parties focused on the issues at 
hand, and help avoid and overcome contentious situations.
     Mediation--Mediation is a process in which a neutral third 
party (the mediator) assists the parties in conflict in reaching a 
mutually satisfying settlement of their differences. Mediators are very 
useful in guiding the dynamics of a negotiation especially when 
unassisted discussions are not productive enough to reach a mutual 
agreement. Good mediators are skillful at assisting parties in 
constructively expressing emotions, encouraging information exchange, 
providing new perspectives on the issues at hand, and helping to 
redefine issues in ways that may lead to mutual gains. Mediators often 
provide facilitation as well as mediation services.

[[Page 10632]]

     Joint Fact-Finding--Joint fact-finding is a process in 
which parties commit to building a mutual understanding of disputed 
scientific, technical, legal or other information. A neutral third 
party assists the group in identifying a mutually agreeable set of 
questions and selecting one or more substantive experts to provide 
information concerning the questions.
    Incorporating ADR early in the process when developing a Public 
Involvement Plan, may prevent the need to use ADR at a later stage of 
the process when conflicts may have escalated or the range of available 
options to address concerns have been reduced. Involving all affected 
parties in the ADR process can help ensure that the agreements reached 
provide solutions to reduce or eliminate: (1) discriminatory effects 
resulting from the issuance of permits; and/or (2) discrimination 
during the public involvement process associated with the permitting 
process.

III. Suggested Approaches for Reducing Some Common Title VI Complaints

    Listed below are four common issues often seen as part of Title VI 
complaints received in the EPA's Office of Civil Rights. A brief 
statement is included explaining each allegation, along with 
suggestions for approaches recipients may take to reduce future 
complaints of similar nature.
    A. Language Issues--Recipients have not provided printed 
information in other languages or sufficient interpreters at meetings 
for the non-English speaking community members to ensure their full 
participation in the public involvement process.
    Using written translation and oral interpreters in communities with 
non-English speaking members help ensure broader participation from the 
affected community. In June 2004, EPA published the ``Guidance to 
Environmental Protection Agency's Financial Assistance Recipients 
Regarding Title VI Prohibition Against National Origin Discrimination 
Affecting Limited English Proficient Persons (LEP)''.\30\ According to 
this guidance, individuals who do not speak English as their primary 
language and who have a limited ability to read, write, speak, or 
understand English can be Limited English Proficient, or ``LEP'' and 
may be entitled to language assistance with respect to a particular 
type of service, benefit or encounter. The intent of this guidance is 
to suggest a balance that ensures meaningful linguistic access to LEP 
persons to critical services while not imposing undue burden on small 
businesses, small local governments, or small nonprofit organizations. 
The guidance suggests four factors recipients may consider to determine 
if different language assistance measures are sufficient for the 
different types of programs and activities administered by the 
recipient. The use of this guidance would be helpful to recipients when 
determining what level of measures are needed to accommodate the LEP 
persons in affected communities to ensure maximum participation in the 
permitting process. The Guidance encourages recipients to develop an 
implementation plan to address the identified needs of the LEP 
populations they serve.
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    \30\ For more information regarding Improving Access to services 
for Persons with limited English proficiency, see Executive Order 
No. 13166, 65 FR 50121 (2000), and Guidance to Environmental 
Protection Agency Financial Assistance Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons, 69 FR 35602 (2004). Recipients, federal 
agencies and community organizations may also find information at: 
http.//www.LEP.gov.
---------------------------------------------------------------------------

    Additional suggestions on approaches recipients may use to reduce 
complaints regarding language issues include:
     While preparing your Public Involvement Plan, work with 
the community and consult EPA's LEP guidance to determine if 
translation and/or interpretation services will be needed to ensure 
meaningful participation. Examples of populations who should be 
considered when planning language services include, but do not limit 
persons near a plant or facility that is permitted or regulated by an 
EPA recipient, persons subject to or affected by environmental 
protection, clean-up, and enforcement actions of an EPA recipient, or 
persons who seek to enforce or exercise rights under Title VI or 
environmental statues and regulations. Consider whether the affected 
community's ability to participate in the process will be limited by 
the ability of their community members to speak or understand English.
     Plan and budget in advance for translation and interpreter 
services. If resources are limited, consider the sharing of language 
assistance materials and services among and between recipients, 
advocacy groups, Federal grant agencies, and reasonable business 
organizations. Where appropriate, train and/or test the competency of 
bilingual staff to act as limited or ad hoc interpreters and 
translators.
     If in-house or local resources are not available, contact 
nearby colleges or universities for possible assistance for translation 
of interpreter services and identifying other competent but cost 
effective resources.
     Use multilingual fact sheets, notices, signs, maps, etc. 
regularly to provide meaningful access by LEP persons to information in 
as many aspects of the permitting process as appropriate.
    B. Siting Issues--Siting of facilities in neighborhoods that are 
hosting similar and often more facilities than nearby communities.
    Local zoning boards often make land-use decisions based on zoning 
regulations that were enacted several decades ago. These decisions 
affect the location of many facilities. Such decisions can affect 
community members in many ways and result in very contentious and 
difficult situations for state agencies charged with permitting 
facilities. While state/local environmental permitting agencies are 
responsible for minimizing environmental impacts to local communities 
and liable for ensuring that its practices and policies are implemented 
in a nondiscriminatory manner, some of those same agencies may not be 
involved in local zoning decisions. To improve the relationship between 
communities, and state/local governments, some permitting agencies have 
begun working with their local land use and planning boards to try to 
integrate the environmental, social and economic needs of communities 
early in the process, beginning in the site planning stage.\31\
---------------------------------------------------------------------------

    \31\ For examples on how some state and local agencies are 
working together to address community concerns regarding siting, see 
the National Academy of Public Administration's July 2003 report 
entitled ``Addressing Community Concerns: How Environmental Justice 
Relates to Land Use Planning and Zoning'' at http.//
www.napawash.org.
---------------------------------------------------------------------------

    Some approaches that may be considered to help address potential 
siting issues include:
     Acknowledging concerns communities have with facilities 
placed near residential areas and working with those communities to 
develop outreach strategies to address their concerns;
     Working with the appropriate authorities to ensure that 
data regarding the demographics and location of existing facilities in 
communities are considered before making local land-use and planning 
decisions;
     Revising or developing state level regulations or policies 
that list reasonable land-use objectives and practices to guide 
agencies when making siting decisions;
     Revising or adopting ordinances that prohibit new 
facilities from producing net increases of environmental pollution in 
areas already hosting a number of facilities;

[[Page 10633]]

     Evaluating zoning in heavily populated areas to determine 
whether current land use practices differ from those employed when area 
was previously zoned;
     Having state environmental agencies work with local land-
use and planning boards to help them understand the effects of human 
health and the environment on communities from previous siting 
decisions made, and begin developing strategies to reduce future 
impacts on those affected communities;
     Having state environmental agencies provide outreach and 
technical assistance (through training workshops) to local governments 
on how to engage communities in siting decisions made; and
     Sharing environmental data with local governments to help 
them project and evaluate future impacts of proposed land use plans on 
existing communities before decisions are finalized.
    C. Insufficient Public Notices--Lack of meaningful opportunities 
for communities to participate in the public involvement process 
because notices are not publicized broadly enough to reach all 
communities.
    Community input plays an integral role in any successful permitting 
program. Public notices serve as a means to inform the public and 
ensure community input. Inadequate public notice programs can result in 
a lack of trust between communities and state/local agencies, 
permitting delays, and the filing of Title VI complaints.
    Suggested approaches for reducing future complaints regarding 
insufficient public notices include:
     Seeking community input to find out what pathways would be 
most effective in getting information out to particular communities;
     Choosing outlets that are most widely used by members of 
the affected community (e.g., community-based church bulletins, 
culturally-based community newspapers, grocery stores, libraries, 
foreign-language radio for reaching non-English-speaking communities, 
the internet and other places frequently visited by members of the 
affected community);
     Notifying communities at least once a week (e.g., 10 to 14 
days before, one week before and one day before the event is held via 
radio, phone, e-mail, newspaper, etc.) to ensure the greatest level of 
participation;
     Announcing times, dates and locations of events clearly;
     Providing sufficient information on the purpose and scope 
of the meeting by listing the types of information to be discussed, 
along with the type of feedback/input the agency is seeking from the 
public; and
     Providing names, addresses (including e-mail addresses), 
and telephone numbers of agency contact persons.
    D. Information Repository--Lack of an information repository or 
insufficient notice regarding the location and/or hours for reviewing 
permit information in the repository, or selection of an inconvenient 
location for the affected community.
    Information repositories provide public access to accurate, 
detailed, and current data about facilities in their community.\32\ 
Although states have the authority to require that facilities establish 
information repositories, many states have not included it as a 
mandatory activity in their regulations. However, the existence of an 
information repository in a community shows a responsiveness and 
commitment to the community's needs for comprehensive information 
regarding a facility. Information repositories greatly improve public 
participation by making important information readily accessible to 
communities interested in participating in the permitting process or 
merely wanting to keep abreast of activities at facilities in their 
neighborhoods. Suggestions on approaches recipients may use to reduce 
complaints regarding information repositories include:
---------------------------------------------------------------------------

    \32\Federal, state and local government officials may access 
risk management plans (RMP) (describing potential accidental 
releases) and Off-site Consequence Analysis (OCA) information for 
official use by contacting their Implementing Agency or EPA's 
contractor-operated RMP Reporting Center at 301-429-5018 (e-mail: 
[email protected]). OCA information is available to the 
public at Federal reading rooms located throughout the United States 
and its territories. EPA also makes available RMPs without the OCA 
data elements that might significantly assist someone in targeting a 
chemical facility. State Emergency Response Commissions and Local 
Emergency Planning Committees may also provide the public with read-
only access to OCA information for local facilities. Private 
individuals can find contact information for a local committee or 
get a list of facilities that have opted to make their OCA 
information available to the public without restriction at http://www.epa.gov/ceppo/lepclist.htm or by calling the EPA hotline at 
(800) 424-9346.
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     Establishing, or requiring that facilities establish 
information repositories especially in cases where a significant amount 
of public concern is expected or has surfaced, or when the community 
has unique information needs;
     Choosing locations for information repositories in places 
most convenient and accessible to the public (e.g. local public 
libraries, community centers, churches, etc.);
     Establishing an online information repository for public 
access;
     Ensuring that the existence of the information repository 
is well publicized;
     Ensuring that repositories are placed in well lit and 
secure locations;
     Ensuring that the hours for reviewing information in the 
repository are convenient to the public;
     If a permitting activity is controversial or is expected 
to raise a lot of community interest, suggesting that the facility 
consider providing several copies of key documents in the repository so 
many people can review the information at the same time; and
     Ensuring that the repository is updated as new information 
is generated regarding the facility.

IV. Evaluating Approaches for Meaningful Public Involvement

    After implementing any of the above public involvement approaches, 
it is important to periodically evaluate the approaches from the 
beginning stages of the process to identify and address areas in need 
of improvement. The evaluation process should be a fundamental part of 
any public involvement process. Evaluating the public involvement 
program on an ongoing basis gives the recipient a sense of where things 
are and an indication of how and where things are going. Evaluating the 
program can also help the recipient determine whether set goals were 
met, make sure that the process stays on track and allow for changes as 
the process moves forward.
    Tools used for evaluating public involvement programs may include:
     Informal Feedback--Informal feedback is unstructured 
communication on a routine basis between the recipient agency, the 
community, and facilities to give everyone a chance to express their 
feelings on how the process went, is going, and how it can be improved.
     Questionnaires--Questionnaires are very useful and usually 
consist of short to-the-point questions to determine whether the 
participants felt the activity was useful. Questionnaires are often 
used at the end of an event such as a public meeting.
     Interviews--Interviews are usually done under a more 
formal setting when feedback is needed from a larger group. Feedback 
obtained from interviews may be used to help construct additional and 
more defined tools (e.g., community action plans).
     Debriefs--Debriefs are very useful methods for receiving 
internal feedback from staff members on a process. Debriefs are most 
successful when done

[[Page 10634]]

shortly after the process concludes to ensure that all major issues are 
addressed, and suggestions for improvements can be implemented into 
future activities.
     Surveys--Surveys are very useful to obtain data or 
statistical information.

V. Due Weight

    Many recipients, have asked OCR to provide ``incentives'' to help 
them develop proactive Title VI related approaches. Some recipients 
have asked OCR 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 
related approaches, under the Civil Rights Act of 1964, the Federal 
government is charged with assuring compliance with Title VI. 
Consequently, OCR cannot completely defer to a recipient's own 
assessment of whether Title VI or EPA's Title VI implementing 
regulations have been violated. In addition, OCR cannot rely entirely 
on an assertion that a Title VI approach has been followed or delegate 
its responsibility to enforce Title VI to its recipients.\33\ Thus, 
with regard to the processing of Title VI complaints, EPA retains the 
ability to:
---------------------------------------------------------------------------

    \33\ 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 Federal agencies are responsible for 
enforcing the nondiscrimination requirements that apply to 
recipients of assistance under their program.'').
---------------------------------------------------------------------------

     Decide whether to investigate the complaint using the 
recipient's analysis as supplemental information;
     Investigate a complaint or initiate a compliance review 
notwithstanding any informal resolution reached by the recipient and 
complainant; and
     Initiate its own enforcement actions and compliance 
reviews as a general matter.
    Nevertheless, EPA believes that it can, under certain 
circumstances, recognize the results of information submitted and give 
it appropriate due weight. For example, if during the course of an 
investigation, results of adopted approaches are submitted as evidence 
that EPA's Title VI regulations have not been violated, EPA will review 
the approach and results to determine how much weight to give the 
submission in its investigation.\34\
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    \34\ In addition to the analyses and procedures described in 
this section, OCR also intends to consider other available and 
relevant evidence from both the recipient and complainant, such as 
meeting minutes, correspondence, empirical data, interviews, etc., 
as appropriate.
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    Some recipients may develop procedures for their permitting 
programs that meet certain criteria designed to ensure a 
nondiscriminatory public involvement process. The weight given any 
evidence related to the public involvement process and the extent to 
which OCR may rely on it in its decision will likely vary depending 
upon:
     Whether the criteria that formed the basis for the program 
were sufficient to ensure a nondiscriminatory process;
     If the overall permitting process met those criteria; and
     The relevance of the recipients' public involvement 
programs to the allegation(s) and the thoroughness of documentation of 
how the recipient addresses the allegations.
    The value that OCR expects to give public involvement approaches 
will likely range from no weight for procedures that have significant 
deficiencies with respect to the considerations listed above, to 
significant weight for procedures depending on the outcome of OCR's 
review in light of the considerations listed above. Some weight would 
likely be given to procedures that fall between these two extremes, 
such as efforts which show that the recipient attempted to resolve 
specific allegations before the complaint was filed with EPA. However, 
if OCR finds that a recipient's public involvement process warrants the 
greatest weight, then OCR would generally rely upon the recipient's 
input in subsequent decisions. Consequently, OCR may dismiss future 
allegations related to issues covered by that process. However, OCR may 
conduct an investigation in cases where there is an allegation or 
information revealing that circumstances were substantially different 
and showed that the public involvement process used was inadequate or 
improperly implemented.

VI. Conclusion

    This guidance suggests approaches that recipients of EPA financial 
assistance may want to use to ensure nondiscrimination and to help 
reduce the filing of complaints alleging public involvement violations 
of Title VI of the Civil Rights Act of 1964 and EPA's Title VI 
implementing regulations. This guidance emphasizes community 
involvement early and often in the permitting process. This guidance 
also focuses on four common allegations in Title VI complaints and 
offers suggestions on how to reduce the likelihood of future complaints 
of similar nature. EPA believes that the approaches suggested in this 
guidance will help improve relations between EPA recipients and 
communities, enable communities to better participate in the public 
involvement portion of the permitting process, and give direction to 
EPA recipients and local decision-makers on possible ways to reduce the 
filing of future complaints related to public involvement practices 
alleging violations of Title VI and EPA's Title VI implementing 
regulations.

    Dated: February 10, 2005.
Karen D. Higginbotham,
Director, Office of Civil Rights.

VII. Additional Resources

EPA, 2004, Guidance to Environmental Protection Agency Financial 
Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficiency 
Persons, (available at: http://www.epa.gov/civilrights/
lepaccess.htm).
EPA, 2003, Public Involvement Policy of the U.S. Environmental 
Protection Agency, Office of Policy, Economics and Innovation, 
Washington, DC, EPA 223-B-03-002 (available at: http://www.epa.gov/
publicinvolvement/policy2003/finalpolicy.pdf).
EPA, 2003, Moving Towards Collaborative Problem-Solving: Business 
and Industry Perspectives and Practices on Environmental Justice, 
Office of Environmental Justice, Washington, DC, EPA/300-R-03-003 
(available at: http://www.epa.gov/compliance/resources/publications/
ej/ej--annual--project--reports.html).
EPA, 2003, 2001-2002 Biennial Report: Constructive Engagement and 
Collaborative Problem-Solving, Office of Environmental Justice, 
Washington, DC, EPA 300-R-03-001 (available at: http://www.epa.gov/
compliance/resources/publications/ej/ej--annual--project--
reports.html).
EPA, 2002, Superfund Community Involvement Toolkit, Office of Solid 
Waste and Emergency Response, Washington, DC, EPA 540-K-01-004 
(available at: http://www.epa.gov/superfund/tools/index.htm).
EPA, 2002, Enhancing Facility-Community Relations, Office of Solid 
Waste, Washington, DC, EPA/530/F-02-037 (available at: http://www.epa.gov/epaoswer/hazwaste/tsds/site/f02037.pdf).
EPA, 2001, Community Involvement Policy Directive 9230.0-99: Early 
and Meaningful Community Involvement, Office of Solid Waste and 
Community Response, Washington, DC, (available at: http://www.epa.gov/superfund/resources/early.pdf).
EPA, 2000, Social Aspects of Siting RCRA Hazardous Waste Facilities, 
Office of Solid Waste and Emergency Response, Washington, DC, 
EPA530-K-00-005 (available at: http://www.epa.gov/epaoswer/hazwaste/
tsds/site/k00005.pdf).

[[Page 10635]]

EPA, 2000, Engaging the American People: A Review of EPA's Public 
Participation Policy and Regulations with Recommendations for 
Action, Office of Policy, Economics, and Innovation, Washington, DC, 
EPA 240-R-00-005 (available at: http://www.epa.gov/stakeholders/pdf/
eap--report.pdf).
EPA, 2000, Public Involvement in Environmental Permits: A Reference 
Guide, Office of Solid Waste and Emergency Response, Washington, DC, 
EPA-500-R-00-007 (available at: http://www.epa.gov/permits/
publicguide.htm).
EPA, 1999, Report of the Title VI Implementation Advisory Committee: 
Next Steps for EPA, State and Local Environmental Justice Programs, 
Office of Environmental Cooperative Management, Washington, DC 20460 
(available at: http://www.epa.gov/ocem/nacept/titleVI/
titlerpt.html).
EPA, 1999, Brownfields Title VI Case Studies: Summary Report, Office 
of Solid Waste and Emergency Response, Washington, DC, EPA 500-R-99-
003 (available at: http://www.epa.gov/oswer/ej/ejndx.htm#titlevi).
EPA, 1996, RCRA Expanded Public Participation Rule, Office of Solid 
Waste, Washington, DC, 40 CFR Parts 9,124 & 270 (available at: 
http://www.epa.gov/epaoswer/hazwaste/permit/pubpart.htm).
EPA, 1996, RCRA Public Participation Manual, Office of Solid Waste, 
Washington, DC (available at: http://www.epa.gov/epaoswer/hazwaste/
permit/pubpart/manual.htm).
EPA, 1995, The Decision Maker's Guide to Solid Waste Management, 
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[FR Doc. 05-3448 Filed 3-3-05; 8:45 am]
BILLING CODE 6560-50-P