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

53 Pages·2000·0.66 MB·English

Tuesday,
June 27, 2000
Part II
Environmental
Protection Agency
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
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39650 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices
ENVIRONMENTAL PROTECTION submitted to the following e-mail of both the Draft Recipient Guidance
AGENCY address: [email protected]. Please and the Draft Revised Investigation
include your name and address, and, Guidance documents. EPA will also
[FRL–6720–7]
optionally, your affiliation. continue its interagency coordination
Draft Title VI Guidance for EPA FOR FURTHER INFORMATION CONTACT: through its work with the U.S.
Assistance Recipients Administering Yasmin Yorker, US Environmental Department of Justice and the Council
Environmental Permitting Programs Protection Agency, Office of Civil Rights on Environmental Quality.
Today’s document also contains a
(Draft Recipient Guidance) and Draft (1201A), 1200 Pennsylvania Avenue
Summary of Key Stakeholder Issues
Revised Guidance for Investigating NW., Washington, DC, 20460, telephone
Concerning EPA Title VI Guidance. EPA
Title VI Administrative Complaints (202) 564–7272.
is not soliciting comments on the
Challenging Permits (Draft Revised SUPPLEMENTARY INFORMATION:
Summary of Key Stakeholder Issues
Investigation Guidance)
Concerning EPA Title VI Guidance. It is
Table of Contents
AGENCY: Environmental Protection
provided for informational purposes
A. Preamble
Agency (EPA).
only.
B. Draft Title VI Guidance for EPA
ACTION: Draft Agency Guidance.
Assistance Recipients Administering Background
SUMMARY: EPA today released two draft Environmental Permitting Programs Entities applying for EPA financial
guidance documents to clarify for (Draft Recipient Guidance) assistance submit an assurance with
agencies and citizens the compliance C. Draft Revised Guidance for their application stating that they will
requirements of Title VI of the Civil Investigating Title VI Administrative comply with the requirements of EPA’s
Rights Act. The guidance strikes a fair Complaints Challenging Permits regulations implementing Title VI of the
and reasonable balance between EPA’s (Draft Revised Investigation Civil Rights Act of 1964 (Title VI) with
strong commitment to civil rights Guidance) respect to their programs or activities.
enforcement and the practical aspects of D. Summary of Key Stakeholder Issues When the recipient receives the EPA
operating permitting programs. Title VI Concerning EPA Title VI Guidance assistance, they accept the obligation to
prohibits discrimination based on race, A. Preamble comply with EPA’s Title VI
color, or national origin, and applies to implementing regulations. Persons who
entities that receive federal funding Today’s Federal Register document believe Federal financial assistance
from EPA. When state and local contains two draft guidance documents recipients are not administering their
agencies that receive federal funding on which the U.S. Environmental programs in a nondiscriminatory
have questions about avoiding Protection Agency (EPA) is seeking manner may file administrative
discrimination in their permitting public comment. The first is the Draft complaints with the EPA or other
programs, the first guidance, Draft Title Title VI Guidance for EPA Assistance relevant Federal agencies. These
Recipients Administering complaints must be filed subsequent to
VI Guidance for EPA Assistance
Environmental Permitting Programs a particular action taken by a recipient
Recipients Administering
(Draft Recipient Guidance). The second (such as the issuance of an
Environmental Permitting Programs,
is the Draft Revised Guidance for environmental permit) that the
explains how to effectively deal with
Investigating Title VI Administrative complainants allege has a
the types of concerns that often lead to
Complaints Challenging Permits (Draft discriminatory purpose or effect.
complaints of discrimination.
Revised Investigation Guidance). After In February 1998, EPA issued its
If formal complaints are filed, the
the Draft Revised Investigation Interim Guidance, which is internal
second guidance, Draft Revised
Guidance is finalized, it will replace the guidance that provides a framework for
Guidance for Investigating Title VI
Interim Guidance for Investigating Title OCR’s processing of complaints filed
Administrative Complaints, explains
VI Administrative Complaints under Title VI that allege discrimination
how EPA will investigate and resolve
Challenging Permits (Interim Guidance) in the environmental permitting context
them. It also explains to communities
issued in February 1998. EPA is on the basis of race, color, or national
and recipients the types of concerns that
soliciting public comment on both of origin.
Title VI addresses and their roles in the
these documents for 60 days. The Draft Revised Investigation
investigation process. Once the Draft
During the public comment period, Guidance was developed to address the
Revised Guidance for Investigating Title
EPA will hold six public listening application of Title VI to alleged adverse
VI Administrative Complaints is final, it
sessions around the country to receive disparate impacts caused by
will replace the Interim Guidance for
additional input. EPA also expects to environmental permitting. It does not
Investigating Title VI Administrative
meet with various stakeholder address other applications of Title VI in
Complaints Challenging Permits
organizations during the comment the environmental context, such as
(Interim Guidance) issued in February
period to listen to their comments. (A allegations concerning the unequal
1998.
current list of scheduled outreach enforcement of environmental permit
DATES: Comments on the two draft meetings is posted on EPA’s Office of conditions, regulations, or statutes, or
guidance documents must be received Civil Rights’ (OCR) Web site at http:// allegations relating to discrimination in
in writing by August 28, 2000. www.epa.gov/civilrights). See the Public public participation processes
Comments should be mailed to the Comment Period section of this associated with permitting decisions.
address listed below. document for details about the public This guidance is directed at the
ADDRESSES: Written comments on the comment period and the listening processing of discriminatory effects
two draft guidance documents should sessions. allegations, Title VI complaints may
be mailed to: Title VI Guidance EPA will consider both the written also allege discriminatory intent in the
Comments, US Environmental public comments submitted and the context of environmental permitting.
Protection Agency, Office of Civil Rights information collected during the Such complaints generally will be
(1201A), 1200 Pennsylvania Avenue listening sessions and stakeholder investigated by OCR under Title VI,
NW., Washington, DC, 20460, or meetings as it drafts the final versions EPA’s Title VI regulations, and
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Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39651
applicable intentional discrimination In addition, OCR developed the Draft Government Advisory Committee and
case law. Such topics will be addressed Recipient Guidance, which is voluntary Small Communities Advisory
in future guidance documents as in nature, to offer suggestions to Subcommittee in September 1999.
appropriate. recipients about approaches they could The Draft Revised Investigation
The filing or acceptance for use to address potential Title VI issues Guidance and the Draft Recipient
investigation of a Title VI complaint before complaints arise. The Draft Guidance are non-binding policy
does not suspend an issued permit. Title Recipient Guidance complements the statements that do not directly affect the
VI complaints concern the programs Draft Revised Investigation Guidance by rights and responsibilities of state and
being implemented by Federal financial providing information and flexible tools local recipients. Instead, they merely
assistance recipients and any EPA that may help recipients achieve explain EPA’s policy regarding existing
investigation of such a complaint compliance with Title VI. For example, obligations that recipients accept when
primarily concerns the actions of the document describes geographic area- they receive EPA assistance. Those
recipients rather than permittees. While wide approaches which use active obligations were established by Title VI,
a particular permitting decision may act public participation processes to which as been in place since 1964, and
as a trigger for a complaint, allegations identify and prevent pollution. The by EPA’s implementing regulations,
may involve a wider range of issues or Draft Recipient Guidance also notes that which were first promulgated in 1973
alleged adverse disparate impacts the process used by recipients to assess and require recipients to submit
within the legal authority of recipients. conditions, set goals, and track assurances of compliance with EPA’s
At the time EPA issued the Interim reductions can provide important regulations.
Guidance, EPA also solicited public information for EPA to consider when The Draft Revised Investigation
comment for a 90-day period. EPA conducting a Title VI investigation. This Guidance is an internal EPA document
received over 120 written comments. In type of data may be examined by EPA that concerns the manner in which OCR
addition, EPA received stakeholder and accorded due weight. In addition, will conduct its Title VI investigations.
input through: EPA’s intended approach regarding It is not a guidance that directs states to
• Meetings with a number of permits that decrease pollution, which take any action. The Draft Recipient
is described in the Draft Revised Guidance does not require recipients to
stakeholder representatives including
Investigation Guidance, reduces the develop Title VI-related approaches and
those from environmental justice
uncertainty concerning permitting activities. Moreover, recipients that
groups, communities, industry, state
actions taken pursuant to such choose to develop Title VI-related
and local governments, and the civil
community-based reduction efforts. approaches and activities are in no way
rights community to discuss their
The Draft Recipient Guidance relies bound by the suggestions made in the
concerns and views on issues associated
heavily on the work of the Title VI Draft Recipient Guidance. If a recipient
with the Interim Guidance;
• An advisory committee that Implementation Advisory Committee of develops Title VI-related approaches or
EPA’s National Advisory Council for activities, then EPA intends to carefully
provided a broad range of views on a
Environmental Policy and Technology consider the results of that work and
number of issues under consideration in
(Title VI Advisory Committee); the give it any appropriate weight it is due.
the Interim Guidance revision process;
October 9, 1998, draft Proposed
• A facilitated meeting with Responding to Concerns Raised About
Elements of State Environmental Justice
stakeholder group representatives to the Interim Guidance
Programs developed by the
receive more feedback on draft options Environmental Council of States; and A number of issues were raised
under consideration for inclusion in the available descriptions of state during our outreach and comment
Draft Revised Investigation Guidance; environmental justice programs. The process. Stakeholders raised concerns
and discussions of mitigation draw heavily that the Interim Guidance was vague,
• Internal EPA and U.S. Department from the Title VI Implementation lacked clarity and definitions, and failed
of Justice review processes. Advisory Committee report. Further, to provide direction on critical issues.
Based upon that input and the both the Draft Revised Investigation The draft guidance documents respond
experience gained from processing and Guidance and the Draft Recipient to these concerns.
investigating complaints during the Guidance adopt many of the principles First, the draft documents provide
intervening months, EPA is now issuing agreed to by the Title VI Advisory more detail and clarity than was
the Draft Revised Investigation Committee. provided in the Interim Guidance. Plain
Guidance. The Draft Revised In fact, the Draft Recipient Guidance language is used and more detail
Investigation Guidance, when final, will was written at the request of the states provided in areas where comments
replace the Interim Guidance. OCR has and is intended to offer suggestions to suggested it was needed, such as
included substantially more detail assist state and local recipients in informal resolution and the disparity
throughout the Draft Revised developing approaches and activities analysis. In addition, the Draft Revised
Investigation Guidance than was that address Title VI concerns. In Investigation Guidance provides a
provided in the Interim Guidance to addition to the steps described above, clearer structure and additional
better enable the reader to understand EPA engaged in an extensive information about the basis for OCR’s
the approach that OCR expects to take consultation process with elected state positions. Also, the Draft Revised
with Title VI administrative complaints and local officials, and other Investigation Guidance includes cross
challenging permits. The Draft Revised representatives of state and local references to the Draft Recipient
Investigation Guidance is not intended governments in the process of Guidance and vice versa.
to address every situation that may arise developing both the Draft Revised Second, the Draft Revised
in the interaction between Title VI and Investigation Guidance and the Draft Investigation Guidance more clearly
environmental permitting. Instead, it Recipient Guidance. Specifically, EPA explains the various steps of the adverse
explains how OCR generally intends to met with the National League of Cities disparate impact analysis and the
process and investigate allegations of in September 1998, the National actions that can be taken at each stage
discriminatory effects from Association of Attorneys General in (e.g., how a finding of adverse impact is
environmental permitting. June 1999, and members of the Local expected to be reached, or when an
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39652 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices
allegation will likely be dismissed). implementing regulations. In particular, Title VI concerns. The individual Title
Also, EPA has attached a flowchart as it provides a framework designed to VI activities described in the Draft
an appendix to more fully explain the improve a recipients’ existing programs Recipient Guidance include effective
Title VI complaint processing or activities and reduce the likelihood public participation, intergovernmental
regulations at 40 CFR part 7, subpart E or necessity for persons to file Title VI involvement, and alternative dispute
and how those govern OCR’s receipt and administrative complaints with EPA resolution.
handling of complaints filed with EPA. alleging either: (1) Discriminatory The approaches described are not
Third, more terms are defined by human health or environmental effects intended to represent all those
providing examples within the text and resulting from the issuance of permits; recipients may adopt, nor are they
including a glossary of terms as an or (2) discrimination during the intended to be mutually exclusive.
attachment to each draft guidance permitting public participation process. Recipients should determine the proper
document. To ensure stakeholder involvement in mix and extent of appropriate Title VI
Fourth, the draft documents contain the development of the Draft Recipient activities and approaches. Recipients
guidance on issues that were not Guidance, EPA Administrator Carol M. are not required to implement any of the
included in the Interim Guidance or Browner established a Title VI Title VI activities or approaches
required further clarification. They Implementation Advisory Committee in described in the Draft Recipient
discuss tools to conduct an adverse March 1998. The Title VI Advisory Guidance; they should develop and
impact analysis, and describe EPA’s Committee was comprised of implement any approaches for
intent to accord due weight to representatives of communities, addressing Title VI issues that they
approaches by recipients that reduce or environmental justice groups, state and believe are appropriate. In any case,
eliminate adverse disparate impacts. local governments, industry, and other recipients will be held accountable for
The Draft Revised Investigation interested stakeholders. The committee operating their programs in compliance
Guidance also outlines EPA’s intended reviewed and evaluated existing with the non-discrimination
approach regarding permit actions that techniques that EPA funding recipients, requirements of Title VI and EPA’s
result in an actual and significant such as state and local environmental implementing regulations as determined
decrease in emissions, and provides that permitting agencies, may use to by OCR.
such permit actions will likely not serve administer environmental permitting
as bases for findings of violation of Title programs in compliance with Title VI. It Draft Revised Investigation Guidance
VI. was also asked to make Acceptance/Rejection
Flexibility is also a key concept recommendations to help EPA financial
embodied in the draft documents. For assistance recipients design programs or EPA determines whether to accept a
example, EPA recognizes that recipients approaches that will address Title VI complaint for investigation or to reject
have different Title VI concerns, concerns early in the permit process. it based on a set of jurisdictional criteria
different amounts of resources, and The core components of the Draft listed in its Title VI implementing
different organizational structures, so a Recipient Guidance are based, in part, regulations. The acceptance of a
‘‘one-size-fits-all’’ Title VI program will on the March 1, 1999, Report of the Title complaint for investigation does not
not adequately address all recipients VI Implementation Advisory Committee: mean that there has been a finding of
needs. As a result, the Draft Recipient Next Steps for EPA, State, and Local violation of Title VI. Because the Interim
Guidance offers a range of possible Environmental Justice Programs. Guidance did not list all of the steps of
approaches to Title VI issues and The Draft Recipient Guidance is complaint processing or all of the time
encourages recipients to develop other divided into two main sections. The frames outlined in EPA’s Title VI
techniques. first section describes several general implementing regulations, some
In addition to the general matters approaches recipients may want to commenters thought that EPA was
described above, the key elements of the adopt to help identify and resolve issues deviating from the administrative
Draft Recipient Guidance and some of that could lead to the filing of Title VI structure the regulations created or had
the other specific additions or changes complaints. The second section eliminated some of the time frames. To
to the Interim Guidance contained in provides guidance on individual address that misunderstanding, the
the Draft Revised Investigation activities that EPA encourages Draft Revised Investigation Guidance
Guidance are described below. recipients to consider integrating into incorporates all of the major steps and
their permitting programs. time frames mentioned in the Title VI
Draft Recipient Guidance
regulations.
Title VI Approaches and Activities
Entities applying for EPA financial The Draft Revised Investigation
assistance submit an assurance with The Draft Recipient Guidance Guidance eliminates the term ‘‘complete
their application stating that they will suggests a number of approaches and or properly pleaded complaint’’ as a
comply with the requirements of EPA’s individual activities recipients can criterion for acceptance because it led to
Title VI implementing regulations with consider adopting and implementing to unnecessary confusion. In addition, the
respect to their programs or activities. address Title VI-related concerns. The discussion of ‘‘timeliness’’ includes
When the recipients receive the EPA suggested Title VI approaches include: substantially more detail to assist
assistance, they accept the obligation to (1) A Comprehensive Approach that complainants in filing within the time
comply with EPA’s Title VI integrates all or most of the Title VI allowed. This section also explains that
implementing regulations. The Draft activities described in the Draft premature complaints and complaints
Recipient Guidance is written for the Recipient Guidance; (2) an Area- involving certain concurrent litigation
recipients of EPA financial assistance Specific Approach to identify will likely be rejected. Furthermore, the
that implement environmental geographic areas where adverse Draft Revised Investigation Guidance
permitting programs. It provides a disparate impacts may exist; and (3) a explains that OCR expects to dismiss a
framework to help recipients address Case-by-Case Approach or permit- complaint if the permit that triggered
situations that might otherwise result in specific approach through which a the complaint is withdrawn or revoked,
the filing of complaints alleging recipient develops criteria to evaluate or if a final decision is made by the
violations of Title VI and EPA’s Title VI permit actions that are likely to raise permittee not to operate under that
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Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39653
permit before OCR completes its discriminatory effect exists; therefore, Under the Civil Rights Act of 1964,
investigation or before any activities denial of the permit at issue will not EPA is charged with assuring
allowed by the permit have begun. necessarily be an appropriate solution. compliance with Title VI and cannot
Efforts that focus on all contributions to delegate its responsibility to enforce
Investigative Procedures
the disparate impact, not just the permit Title VI to its recipients. Therefore, OCR
The Draft Revised Investigation at issue, will likely yield the most cannot defer in the entirety to a
Guidance adds a brief section on effective long-term solutions. recipient’s own assessment that it has
investigative procedures. This section The Draft Revised Investigation not violated Title VI or EPA’s
covers a number of important topics Guidance contains a more detailed regulations, or to a recipient’s assertion
such as the submission of additional discussion on resolving complaints than that a Title VI program has been
information relevant to the investigation the Interim Guidance. In particular, it followed. Nevertheless, under certain
by recipients and complainants. This focuses primarily on measures that circumstances, EPA can consider the
information will be reviewed by EPA recipients could offer to perform during results of recipients’ analyses and give
and may be accorded due weight in its the course of informal resolution them appropriate due weight.
investigation, based on a series of listed attempts with complainants or OCR. It For example, during the course of an
factors. It also describes when also eliminates the reference to investigation, recipients may submit
allegations submitted by the ‘‘supplemental mitigation projects’’ to analyses to support their position that
complainant after the initial complaint avoid confusion with EPA’s an adverse disparate impact does not
will be treated as amendments to the environmental programs. The Draft exist and, under certain circumstances,
existing complaint or will be considered Revised Investigation Guidance suggests OCR may give due weight to those
a new and separate complaint. a variety of possible measures to analyses. OCR would expect that a
Furthermore, it explains that neither the eliminate or reduce to the extent relevant adverse impact analysis or a
filing of a Title VI complaint nor the required by Title VI any adverse disparity analysis would, at a minimum,
acceptance of one for investigation by disparate impacts, including additional generally conform to accepted scientific
OCR stays the permit at issue. pollution control on the source, use of approaches. It may focus on a spectrum
pollution prevention techniques, or of potential adverse impacts, such as
Informal Resolution
emission offsets from other pollution that described in the analytical
EPA’s Title VI regulations call for sources. framework set forth in the Draft Revised
OCR to pursue informal resolution of The Draft Revised Investigation Investigation Guidance, or may be more
administrative complaints wherever Guidance and the Draft Recipient focused, such as the impact of a specific
practicable. EPA believes cooperative Guidance also encourage recipients to pollutant on nearby populations (e.g., a
efforts between permitting agencies and identify geographic areas where adverse study regarding the impact of lead
communities frequently offer the best disparate impacts may exist and to enter emissions on blood lead levels in the
means of addressing potential problems. into agreements (area-specific surrounding area).
However, as several commenters agreements) with the affected In the Draft Recipient Guidance, EPA
pointed out, the Interim Guidance communities and stakeholders to reduce encourages recipients to identify
contained little explanation of how OCR pollution impacts in those geographic geographic areas where adverse
intended to approach informal areas over time. The Draft Revised disparate impacts may exist and to enter
resolution. Therefore, the Draft Revised Investigation Guidance also describes into agreements with affected residents
Investigation Guidance describes the several elements that would be and stakeholders to eliminate or reduce,
various types of informal resolution that considered in decisions regarding to the extent required by Title VI,
are possible. The Draft Recipient voluntary compliance efforts sought by adverse disparate impacts in those
Guidance includes a description of EPA after a formal finding of specific areas. Collaboration with
alternative dispute resolution (ADR) noncompliance, including the cost and communities and other appropriate
techniques that EPA will use, as technical feasibility of such efforts. stakeholders to develop the criteria used
appropriate, and encourages recipients to identify the geographic areas and in
Due Weight
to explore these techniques to assist in designing potential solutions to address
resolving concerns that might otherwise Many commenters, particularly those any adverse disparate impacts will be an
result in Title VI complaints. representing state agencies and important element of the approach.
industry, asked EPA to provide The Draft Revised Investigation
Resolving Complaints
incentives for recipients to develop pro­ Guidance describes the factors OCR will
EPA believes flexibility is critical active Title VI-related programs. In use to evaluate the appropriateness and
when considering measures that particular, some asked EPA to validity of the analysis or the area-
eliminate or reduce adverse disparate recognize, and to the maximum extent specific agreements and to assess the
impacts to the extent required by Title possible rely on, the results of the overall reasonableness of their
VI. Often, Title VI concerns are raised recipient’s Title VI approaches or conclusions or projected results. The
communities believe they are suffering activities in assessing complaints filed Draft Revised Investigation Guidance
from adverse effects caused by multiple with EPA. The Investigative Procedures also explains that more weight will be
sources. For those communities, filing a section of the Draft Revised given to analyses and area-specific
Title VI complaint about a permit for a Investigation Guidance and the Draft agreements that are relevant to the Title
new facility or the most recent Recipient Guidance discuss the issues of VI concerns in the complaint and have
modification to an existing one, is a way deference to recipients’ activities and sufficient depth, breadth, completeness,
to focus attention on the cumulative ‘‘due weight’’ that EPA may provide in and accuracy. Where a recipient or
impacts of a number of the recipient’s the context of adverse disparate impact complainant submits a relevant analysis
permitting decisions. As the Draft investigations. Moreover, the Draft or area-specific agreement that meets
Revised Investigation Guidance states, Recipient Guidance contains a the factors described in the Draft
EPA believes it will be a rare situation discussion of the circumstances under Revised Investigation Guidance, OCR
where the permit that triggered the which OCR might accord a public expects to give the results due weight
complaint is the sole reason a participation process due weight. and rely on it in finding the recipient in
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39654 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices
compliance or not in compliance with affected population and an appropriate the community. However, a justification
EPA’s Title VI regulations. comparison population, and discusses may be rebutted if EPA determines that
comparison methods and criteria to be a less discriminatory alternative exists.
Disparate Impact Analysis
used in assessing the significance of any
Public Comment Period
In order to find a recipient in disparities identified.
violation of EPA’s Title VI The ‘‘initial finding of disparate EPA will accept written comments on
implementing regulations, OCR would impact’’ suggested by the Interim the Draft Revised Investigation
assess whether the impact is both Guidance has been deleted. It was Guidance and the Draft Recipient
adverse and borne disproportionately by intended to provide an opportunity for Guidance for a 60-day period. All
a group of persons based on race, color, recipients to submit input during OCR’s comments must be received in writing
or national origin, and, if so, whether assessment of the alleged disparate by OCR before August 28, 2000.
that impact is justified. The adverse impacts. The Draft Revised Investigation Comments received by the Agency will
disparate impact analytical framework Guidance omits the initial finding of be carefully considered in the revision
in the Interim Guidance did not disparate impact and, instead, focuses of the draft guidance documents. Public
describe how EPA would determine more upon the recipient’s opportunity comments should be mailed to Title VI
what constituted an adverse impact for to provide comments following Guidance Comments, Office of Civil
Title VI purposes. Rather, the Interim acceptance of a complaint. Rights (1201A), 1200 Pennsylvania Ave
Guidance focused attention on the NW., Washington DC, 20460, or
Justification
disparity analysis. The Draft Revised submitted to the following e-mail
Investigation Guidance not only EPA has also elaborated on the address: [email protected]. Please
addresses this gap, but also expands the Interim Guidance’s explanation of what include your name and address, and,
description of the disparity analysis. may constitute a substantial legitimate optionally, your affiliation.
EPA has remained mindful that no justification. While the Interim Additionally, EPA’s Office of Civil
single analysis or definition of adverse Guidance, uses the term ‘‘articulable Rights will coordinate six national
disparate impact is possible due to the value,’’ EPA has eliminated this term public listening sessions to receive
differing nature of impacts (e.g., cancer from the Draft Revised Investigation additional feedback on the Draft
risk, acute health effects, odors) and the Guidance’s Justification section. Recipient Guidance and the Draft
various environmental media (e.g., air, Instead, the Draft Revised Investigation Revised Investigation Guidance. Each of
water) that may be involved. EPA did Guidance focuses on determining these listening sessions will be attended
not set an across-the-board definition of whether specific factors, such as public by the Director of the Office of Civil
what is an adverse impact, but instead health or environmental benefits, and Rights and key regional personnel.
the Draft Revised Investigation when economic benefits might Members of the public wishing to make
Guidance provides more clarity about constitute a substantial legitimate oral comments during the public
how OCR will determine whether it justification. listening session will be limited to no
exists. The Draft Revised Investigation A recipient will have the opportunity more than five (5) minutes, and must
Guidance describes how EPA will use to ‘‘justify’’ the decision to issue the register at the meeting site the day of the
environmental laws, regulations, policy, permit notwithstanding the adverse conference. Seating will be limited and
and science as touchstones for disparate impact. To justify the action, available on a first-come, first-served
determining thresholds for what is the recipient would show that it is basis. The dates, times, and locations of
adverse. reasonably necessary to meet a goal that the public listening sessions are as
The Draft Revised Investigation is legitimate, important, and integral to follows: June 26 in Washington, DC
Guidance indicates that in considering the recipient’s institutional mission. from 9:00 a.m. until 12:00 p.m. and from
adverse disparate impact claims, OCR Because investigations conducted under 6:00 p.m. until 9:00 p.m. at the Ronald
generally expects to consider only those the Draft Revised Investigation Reagan Building/International Trade
types of impacts affected by factors Guidance are about permitting decisions Center, 1300 Pennsylvania Avenue NW.,
within the recipient’s authority under by environmental agencies, OCR expects Polaris Suite (Concourse Level); July 17
applicable law. The Draft Revised to consider the provision of public in Dallas, Texas from 4:00 p.m. until
Investigation Guidance also indicates health or environmental benefits (e.g., 7:00 p.m. at U.S. EPA—Region 6, 1445
that EPA would generally not initiate an waste water treatment plant) to the Ross Avenue, 12th Floor; July 18 in
investigation of allegations of affected population to be an acceptable Chicago, Illinois from 5:00 p.m. until
discriminatory effects from emissions, justification because such benefits are 8:00 p.m. at U.S. EPA—Region 5, 77
including cumulative emissions, where generally legitimate, important, and West Jackson Boulevard, Room 331;
the permit action that triggered the integral to the recipient’s mission. August 1 in New York, New York from
complaint significantly decreases The Draft Revised Investigation 4:00 p.m. until 7:00 p.m. at U.S. EPA—
overall emissions at the facility or where Guidance indicates that OCR will likely Region 2, 290 Broadway, Room 27A;
the permit action that triggered the consider broader interests, such as August 2 in Los Angeles, California
complaint significantly decreases economic development, from the from 6:00 p.m. until 9:00 p.m. at the
pollutants of concern named in the permitting action to be an acceptable Carson Community Center, 801 East
complaint or all the pollutants EPA justification, if the benefits are delivered Carson Street; and August 3 in Oakland,
reasonably infers are the potential directly to the affected population and California from 6:00 p.m. until 9:00 p.m.
source of the alleged impact. if the broader interest is legitimate, at the Henry J. Kaiser Convention
The Draft Revised Investigation important, and integral to the recipient’s Center, 10th Street (near the Lake
Guidance provides significantly more mission. Also, in its evaluation of the Merritt BART station).
information about the process proposed offered justification, OCR will generally If anyone attending the listening
to identify and determine the consider not only the recipient’s sessions needs special accommodations
characteristics of the affected perspective, but the views of the (i.e., sign language interpreter,
population. It also describes the process affected community in its assessment of alternative text format for materials),
of conducting an analysis to determine whether the permitted facility, in fact, please contact Mavis Sanders of the
whether a disparity exists between the will provide direct, economic benefits to Office of Civil Rights at (202) 564–7272,
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Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39655
or send an e-mail message to amended (Title VI) and EPA’s Title VI programs or activities. When EPA
[email protected] at least three implementing regulations.2 In approves an application for EPA
business days before the scheduled particular, it provides a framework assistance and you receive the EPA
listening session. Information regarding designed to improve your existing funds, you accept the obligation of your
these listening sessions can also be programs or activities and reduce the assurance to comply with EPA’s Title VI
found on the OCR Web site at http:// likelihood or necessity for persons to implementing regulations. The primary
www.epa.gov/civilrights/reviguid2.htm. file Title VI administrative complaints means of enforcing compliance with
with EPA alleging either: (1) Title VI is through voluntary
B. Draft Title VI Guidance for EPA
discriminatory human health or compliance agreements. Fund
Assistance Recipients Administering
environmental effects resulting from the suspension or termination is a means of
Environmental Permitting Programs
issuance of permits; or (2) last resort.
(Draft Recipient Guidance)
discrimination during the permitting Executive Order 12250 requires
I. Introduction public participation process. agencies to issue appropriate
A. Purpose of the Recipient Guidance Cooperative efforts between permitting implementing directives, either in the
B. Title VI of the Civil Rights Act of 1964, agencies and communities, whether or form of policy guidance or regulations
as Amended not in the context of Title VI-related that are consistent with requirements
C. Coordination with Draft Revised approaches, frequently offer the best proscribed by the Attorney General.7
Investigation Guidance

means of addressing potential problems. Also, the number of administrative
D. Stakeholder Involvement
complaints filed with EPA alleging
E. EPA’s Guiding Principles for Title VI B. Title VI of the Civil Rights Act of
discrimination prohibited under Title VI
Recipient Guidance 1964, as Amended
F. Scope and Flexibility and EPA’s Title VI implementing
G. Title VI and Tribes Title VI prohibits discrimination regulations has increased over the past
II. Title VI Approaches and Activities based on race, color, or national origin several years. The growing number of
A. Title VI Approaches under any program or activity of a complaints and the requests of state and
1. Comprehensive Approach Federal financial assistance recipient. local agencies for guidance, provided
2. Area-Specific Approaches Title VI itself prohibits intentional the impetus to develop this draft
3. Case-by-Case Approach
discrimination. In addition, Congress guidance. The guidance provides you
B. Title VI Activities
intended that its policy against with recommendations on individual
1. Train Staff
discrimination by recipients of Federal activities and more comprehensive
2. Encourage Meaningful Public
Participation and Outreach
assistance be implemented, in part, approaches designed to identify and
3. Conduct Impact and Demographic through administrative rulemaking.3 resolve circumstances that may lead to
Analyses
Title VI ‘‘delegated to the agencies in complaints being filed with EPA under
a. Availability of Demographic Data and the first instance the complex Title VI.
Exposure Data determination of what sorts of disparate
b. Potential Steps for Conducting Adverse impacts upon minorities constituted C. Coordination With Draft Revised
Disparate Impact Analyses Investigation Guidance
significant social problems, and were
c. Availability of Tools and Methodologies
readily enough remediable, to warrant Along with the Draft Recipient
for Conducting Adverse Impact Analyses
d. Relevant Data altering the practices of the Federal Guidance, EPA is concurrently issuing
e. Resources for Assessing Significance of grantees that had produced those the Draft Revised Guidance for
Impact impacts.’’ 4 Investigating Title VI Administrative
f. Conducting Disparity Analyses and EPA issued Title VI implementing Complaints Challenging Permits (Draft
Assessing Significance
regulations (see 40 CFR part 7) in 1973 Revised Investigation Guidance). The
4. Encourage Intergovernmental and revised them in 1984.5 Under EPA’s Draft Revised Investigation Guidance
Involvement
Title VI implementing regulations, you describes the framework for how EPA’s
5. Participate in Alternative Dispute are prohibited from using ‘‘criteria or Office of Civil Rights (OCR) plans to
Resolution

methods of administering its program process Title VI administrative
6. Reduce or Eliminate Alleged Adverse
Disparate Impact which have the effect of subjecting complaints filed with EPA. Once
7. Evaluate Title VI Activities individuals to discrimination because of finalized, the Draft Revised
C. Due Weight their race, color, [or] national origin.’’ 6 Investigation Guidance will replace the
III. Conclusion As a result, you may not issue permits Interim Guidance for Investigating Title
IV. Acronyms and Abbreviations that are intentionally discriminatory or VI Administrative Complaints
V. References have a discriminatory effect based on Challenging Permits (Interim Guidance)
Glossary of Terms race, color, or national origin. issued in February 1998. The Draft
I. Introduction When you applied for EPA financial Revised Investigation Guidance and the
assistance, EPA’s Title VI implementing Draft Recipient Guidance were
A. Purpose of the Recipient Guidance regulations required that you submit an developed concurrently to ensure
This draft guidance is written for the assurance with your application that consistency. Furthermore, each draft
recipients 1 of U.S. Environmental you will comply with the requirements Title VI guidance document references
Protection Agency (EPA) financial of EPA’s Title VI implementing appropriate sections of the other.
assistance that implement regulations with respect to your The attached Summary of Key
environmental permitting programs Stakeholder Issues Concerning EPA
(‘‘you’’). It provides a framework to help 2 Civil Rights Act of 1964, Public Law 88–352, 78 Title VI Guidance document provides
you address situations that might Stat. 241 (codified as amended in scattered sections an additional discussion that addresses
of 42 U.S.C.).
otherwise result in the filing of
complaints alleging violations of Title 3 42 U.S.C. 2000d–1. 7 Exec. Order No. 12250, 45 FR 72995 (1980)
4 Alexander v. Choate, 469 U.S. 287, 292–94 (Section 1–402). The head of each Federal agency
VI of the Civil Rights Act of 1964, as (1985). is required to ensure compliance with Executive
5 38 FR 17968 (1973), as amended by 49 FR 1656 Orders, to the extent permitted by existing law.
1 The underlined terms are defined or explained (1984) (codified at 40 CFR part 7). Executive Orders are signed by the President of the
in the attached Glossary. 6 40 CFR 7.35(b). United States.
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39656 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices
questions and concerns expressed in • All persons regardless of race, color, different amounts of resources, and
comments the Agency has received on or national origin are entitled to a safe different organizational structures. You
the issue of Title VI guidance. and healthful environment. may choose the activities or approaches
• Strong civil rights enforcement is that are most relevant to address your
D. Stakeholder Involvement
essential. needs. EPA also recognizes that some of
To ensure stakeholder involvement in • Enforcement of civil rights laws and you have already begun to address Title
the development of the Draft Recipient environmental laws are complementary, VI concerns through your existing
Guidance, EPA Administrator Carol M. and can be achieved in a manner programs. Therefore, this guidance:
Browner established a Title VI consistent with sustainable economic • Presents you with a menu of
Implementation Advisory Committee development. possible options from which you may
(Title VI Advisory Committee) under the • Potential adverse cumulative choose to address Title VI concerns;
National Advisory Council for impacts from stressors should be • Provides suggestions to those of you
Environmental Policy and Technology assessed, and reduced or eliminated who choose to develop formal Title VI
(NACEPT) in March 1998. The Title VI wherever possible. approaches or to amend your permit
Advisory Committee was comprised of • Research efforts by EPA and state process to include or revise Title VI
representatives of communities, and local environmental agencies into considerations without developing
environmental justice groups, state and the nature and magnitude of exposures, formal Title VI approaches; and
local governments, industry, and other stressor hazards, and risks are important • Provides flexibility for you, if you
interested stakeholders. The EPA asked and should be continued.
choose to broaden the scope of your
the committee to review and evaluate • Decreases in environmental impacts
Title VI approaches or activities to
existing techniques that EPA funding through applied pollution prevention
improve other areas, such as
recipients, such as state and local and technological innovation should be
enforcement or hazardous waste clean­
environmental permitting agencies, may encouraged to prevent, reduce, or
up.
use to administer environmental eliminate adverse disparate impacts.
permitting programs in compliance with • Meaningful public participation While this draft guidance is intended
to focus on issues related to permitting,
Title VI. The EPA also asked the early and throughout the decision-
you may also consider developing
committee to make recommendations to making process is critical to identify
proactive approaches to promote
help recipients of EPA financial and resolve issues, and to assure proper
equality in monitoring and enforcement
assistance design activities or consideration of public concerns.
approaches that will address Title VI • Early, preventive steps, whether of environmental laws within your
jurisdiction.
concerns early in the permit process. under the auspices of state and local
The core components of the Draft governments, in the context of voluntary G. Title VI and Tribes
Recipient Guidance are based, in part, initiatives by industry, or at the
The applicability of Title VI and
on the April 1999, Report of the Title VI initiative of community advocates, are
EPA’s implementing regulations to
Implementation Advisory Committee: strongly encouraged to prevent potential
Federally-recognized tribes will be
Next Steps for EPA, State, and Local Title VI violations and complaints.
Environmental Justice Programs. The • Use of informal resolution addressed in a separate document
because the subject involves unique
report is available via the OCR Web site techniques in disputes involving civil
issues of Federal Indian law.
at http://www.epa.gov/civilrights/ rights or environmental issues yield the
t6faca.htm. EPA also considered most desirable results for all involved. II. Title VI Approaches and Activities
information from several other sources • Intergovernmental and innovative
The following discussion provides
including: problem-solving provide the most
guidance to you on the types of
• Public comments on the Interim comprehensive response to many
activities and approaches that EPA
Guidance received by OCR; concerns raised in Title VI complaints.
believes you may wish to consider
• Recommendations and feedback
F. Scope and Flexibility adopting and implementing as part of a
provided to EPA staff during meetings,
The statements in this document are strategy to address Title VI-related
over the past 18 months, with
intended solely as guidance. This claims and issues that arise in the
representatives of communities
document is not intended, nor can it be environmental permitting context.
(including environmental justice
relied upon, to create any rights or Identifying and resolving these concerns
organizations), representatives of state
obligations enforceable by any party in early in the permitting process will
and local governments, representatives
litigation with the United States. This likely reduce the number of Title VI
of industry, and other interested
guidance may be revised to reflect complaints filed with EPA and may also
stakeholders;
• Available descriptions of state changes in EPA’s approach to lead to improvements in public
implementing Title VI. In addition, this participation processes, as well as
environmental justice programs; and
• The Environmental Council of guidance does not alter in any way, a public health and environmental
regulated entity’s obligation to comply benefits. You are not required to adopt
States (ECOS) October 9, 1998, draft
with applicable environmental laws. such activities or approaches, but
document entitled Proposed Elements of
This guidance suggests a flexible outcomes that result from the activities
State Environmental Justice Programs.
framework for a Title VI approach and or approaches may be considered in the
E. EPA’s Guiding Principles for Title VI individual Title VI activities. EPA analysis of Title VI complaints that
Recipient Guidance recognizes that a ‘‘one-size-fits-all’’ Title relate to your programs, activities, or
In implementing Title VI and VI approach will not adequately address methods of administration. You may
developing this draft guidance, EPA all your needs. Recipients may have choose to select one or more of the
adheres to the following principles: 8 different Title VI concerns in activities described in section II.B.
communities within their jurisdiction, below, implement some of the more
comprehensive approaches described in
8 The guiding principles were adapted, in part,
section II.A., or develop and implement
from the consensus principles identified by the EPA’s National Advisory Council for Environmental
Title VI Implementation Advisory Committee under Policy and Technology. approaches or activities not listed in
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Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices 39657
this guidance that would likely address contributing to discriminatory health Title VI activities and approaches.
potential Title VI issues. effects on African Americans. The While you are not required to
recipient then might convene a group of implement the Title VI activities or
A. Title VI Approaches
stakeholders with the ability to help approaches described in this guidance,
As a recipient, you must decide solve the identified lead problem, you are required to operate your
which activities or techniques are most including owners of facilities with lead programs in compliance with the non­
relevant to address your needs. You may emissions, other state and local discrimination requirements of Title VI
already have begun to address Title VI government agencies, affected and EPA’s implementing regulations.
concerns through your existing community members, and non­ For claims and analyses related to
programs and may have different governmental organizations. The group disparate impacts, EPA expects that the
amounts of resources or different types may develop an agreement where each analysis would generally conform to the
of organizational structures from other party agrees to particular actions that analytical framework set forth in the
recipients. There are several possible will eliminate or reduce the adverse Draft Revised Investigation Guidance in
approaches described below; however, lead impacts in that specific area. order for EPA to accord it due weight.
they are not intended to represent all Another example might be an area-
possible approaches you may want to specific agreement that establishes a B. Title VI Activities
adopt. It is also important to note that ceiling on pollutant releases with a As a recipient, you may should
the approaches described below are not steady reduction in those pollutants consider integrating the following
mutually exclusive. You can combine over time. The period of time over activities into permitting programs to
activities and approaches described which those reductions should occur help identify and resolve issues that
below to address a range of potential will likely vary with a number of could lead to the filing of Title VI
issues that might result in Title VI factors, including the magnitude of the complaints:
complaints. In other words, if you adverse disparate impact, the number 1. Staff training—to help you meet
implement an area-specific approach, and types of sources involved, the scale your Title VI responsibilities;
you may also want to develop a method of the geographic area, the pathways of 2. Encourage effective public
to identify and address Title VI exposure, and the number of people in participation and outreach—to provide
concerns related to a specific permit the affected population. It is worth permitting and public participation
that is not covered by an area-specific noting, however, that pre-existing processes that occur early, and are
agreement. obligations to reduce impacts imposed inclusive and meaningful;
by environmental laws (e.g., ‘‘reasonable 3. Conduct adverse impact and
1. Comprehensive Approach
further progress’’ as defined in Clean demographic analyses—to analyze new
You may want to adopt a broad Air Act section 171(1)) might not be and existing sources, stressors, and
approach that will improve your sufficient to constitute an agreement adverse impacts with relevant
existing permitting process, rather than meriting due weight.9 Also, area-specific demographic information, especially
addressing Title VI concerns on a case- agreements need not be limited to one potential cumulative adverse impacts, to
specific or area-specific basis, through environmental media (e.g., air provide confidence that Title VI
an alternative process. You may elect to emissions), they may also cover adverse concerns are identified and
adopt a comprehensive approach that disparate impacts in several appropriately addressed;
integrates all of the Title VI activities environmental media (e.g., air and 4. Encourage intergovernmental
described below into your existing water). involvement—to bring together all
permitting process. EPA expects that agencies and parties that may contribute
3. Case-by-Case Approach
such comprehensive approaches will to identifying and addressing
offer recipients the greatest likelihood of For some recipients, permit-specific stakeholder concerns to reach
adequately addressing Title VI concerns, approaches may also be advisable. You innovative and comprehensive
thereby minimizing the likelihood of could develop general criteria to resolutions;
complaints. evaluate permits that could highlight 5. Participate in alternative dispute
those permit actions that are likely to resolution—to involve both the
2. Area-Specific Approaches
raise Title VI concerns. Or, you may community and recipient in an informal
You may choose to develop an focus your efforts on specific permitting process to resolve Title VI concerns;
approach to identify geographic areas actions where Title VI concerns are 6. Reduce or eliminate the alleged
where adverse disparate health impacts actually raised and then employ adverse disparate impact(s)—to reduce
or other potential Title VI concerns (e.g., alternative dispute resolution (ADR) or eliminate identified or potential
where translation of documents may be techniques for those situations to reduce adverse human health or environmental
necessary) may exist. Collaboration with or eliminate them.10 You might also be impacts; and
communities and other appropriate made aware of Title VI concerns in 7. Evaluate Title VI activities—to
stakeholders to develop the criteria used particular permitting actions through identify progress and areas in need of
to identify the geographic areas will be any number of means, including, but improvement.
an important element of the approach. not limited to, comments received on
1. Train Staff
Once the areas are identified, you would the permit application, prior work with
work with the affected communities and residents of the area, and other outreach The success of Title VI activities will
stakeholders to develop an agreement to efforts performed by the recipient. depend on your agency staff’s
reduce and eliminate adverse disparate As a recipient, you determine the knowledge, credibility, and actions.
impacts or other Title VI concerns in proper mix and extent of appropriate Given the nature of Title VI concerns, a
those specific areas. team approach that includes, at a
For example, if a recipient, in 9 See sections V.B.2. of the Draft Revised minimum, permitting and community
collaboration with communities and Investigation Guidance (discussing due weight and liaison functions may likely be the most
any subsequent reliance OCR may give in the
other appropriate stakeholders, effective. Other team members may
course of its investigation to area-specific
identifies a section of a city as an area agreements). include staff with specialized
where permitted emissions are 10 See section II.B.5. (discussing ADR). knowledge or experience such as risk
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39658 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Notices
assessors. You may not necessarily have More specifically, an effective public respect to the issues raised by the
to hire new staff in order to address participation process is one that: community.
Title VI concerns. You may consider • Is early and inclusive: There are a number of publications
using existing staff and training them • Engages the public during the pre- describing effective public participation
about Title VI. OCR believes that an permitting process, as well as during the techniques. The publications listed
effective staff training program may permitting process, whenever possible; below may provide useful information
address the following issues: • Includes community participants as you assess your Title VI activities:
1. Your Title VI responsibilities, Title that represent the spectrum of views; • The Model Plan for Public
VI approaches or activities you have • Uses communication methods Participation developed by the EPA
adopted to assist in meeting those likely to reach the affected community National Environmental Justice
responsibilities, and environmental (e.g., insert information with utility Advisory Council, a Federal Advisory
permitting programs; bills; place public service Committee to the U.S. EPA. (For more
2. Cultural and community relations announcements on local radio shows; information on the EPA National
sensitization to establish and maintain and place notices on bulletin boards in Environmental Justice Advisory
the trust and mutual respect between grocery stores, houses of worship, Council, contact the EPA Office of
you and communities; community newspapers, and Environmental Justice (OEJ) at 202–564–
3. Skills and techniques to enable community centers); 2515, or visit the OEJ Web site at
your staff to communicate effectively • Schedules meeting times and places http://es.epa.gov/oeca/main/ej/
with communities and then relay that are convenient for residents who index.html);
community concerns to your agency; work and those who use public • American Society for Testing and
4. Exposure, risk, and demographic transportation; Materials (ASTM) Standard Guide to the
analysis techniques, cumulative impact • Schedules meeting places that are Process of Sustainable Brownfields
assessments, and ongoing technical accessible to persons with disabilities; Redevelopment (ASTM Standard E–
advances relevant to conducting and 1984–98). (For more information on this
disparate impact analyses; and • Avoids creating schedule conflicts standard, contact ASTM at 610–832–
5. Alternative dispute resolution with other community or cultural 9585. The ASTM Web site location is
techniques to enable your staff to design events, whenever possible. http://www.astm.org);
and carry out a collaborative and • Is meaningful: • Report of the Title VI
informal process that can help resolve • Uses an open and transparent Implementation Advisory Committee:
Title VI concerns. process; Next Steps for EPA, State, and Local
2. Encourage Meaningful Public • Provides understandable Environmental Justice Programs
(Available on line as an Acrobat format
Participation and Outreach information necessary for effective
pdf file at (http://es.epa.gov/oeca/oej/
community participation (Writing User-
Early, inclusive, and meaningful t6report.pdf);
Friendly Documents and other guidance
public involvement in the permitting • EPA’s 1998 Final Supplemental
on how to write in plain language are
process will likely help to reduce the Environmental Projects Policy contains
available from the Plain Language
filing of Title VI complaints alleging information on the public’s opportunity
Action Network (PLAN) on the Internet
that the public participation process for to participate in the consideration of
at http://www.plainlanguage.govE);
a permit was discriminatory. It is • Provides supplemental technical Supplemental Environmental Projects
possible to have a violation of Title VI (http://www.epa.gov/oeca/sep/);
or EPA’s Title VI regulations based information (e.g., trend and comparison • EPA’s 1998 Guidance for
data, background on types of health
solely on discrimination in the Incorporating Environmental Justice
effects, concepts of exposure
procedural aspects of the permitting Concerns in EPA’s NEPA Compliance
assessment) and technical assistance to
process without a finding of Analyses contains a discussion
make data more meaningful;
discrimination in the substantive • Takes reasonable steps to regarding public participation in
outcome of that process, such as Section 4 (pages 39–43) (http://
communicate,11 in written documents
discriminatory human health or es.epa.gov/oeca/ofa/ejepa.html); and
environmental effects. Likewise, it is as well as orally, in languages other than • EPA’s 1996 Resource Conservation
English, when appropriate for the
possible to have a violation due to and Recovery Act (RCRA) Public
community; 12 and
discriminatory human health or • Provides clear explanations and Participation Manual explains how
environmental effects without the public participation works in the
reasons for the decisions made with
presence of discrimination in the public permitting process and also contains
participation process. useful information for public
11 A recipient’s failure to take reasonable steps to
An effective public participation participation in non-RCRA
provide a ‘‘meaningful opportunity’’ for limited
process: English speaking individuals to effectively environmental activities (http://
• Seeks out and facilitates the participate in its programs and activities can www.epa.gov/epaoswer/hazwaste/
involvement of individuals who will be constitute discrimination prohibited by Title VI. permit/pubpart).
See Lau v, Nichols, 414 U.S. 563 (1974). Further,
potentially affected by permitting
EPA’s Title VI regulations state that ‘‘[a] recipient 3. Conduct Impact and Demographic
de•c isEinosnusr; es that the public is involved sithsa pllr ongorta ums ew chriictehr i*a o*r m* hetahvoed tsh oe fe affdemcti nofi stering Analyses
early in the process; defeating or substantially impairing The ability to analyze new and
• Provides participants in the process accomplishment of the objective of the program existing potentially adverse impacts,
with respect to individuals of a particular race,
with the information they need to together with relevant demographic
color, [or] national origin.’’ 40 CFR 7.35(b).
participate in a meaningful way; 12 See DOJ’s regulation entitled ‘‘Coordination of information concerning receptor
• Ensures that public concerns are Enforcement of Non-discrimination in Federally- populations (i.e., populations that may
appropriately considered; and Assisted Programs,’’ 28 CFR subpart F, specifically be exposed to stressors), will often help
• Communicates to participants in section 42.405(d)(1) for a discussion of factors identify potential Title VI concerns and
recipients should consider when determining
the process how their input was, or was assist in appropriately addressing them.
whether translation for limited English speaking
not, used. populations is necessary. Potential and existing impacts may
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