Interim Guidance For Investigating Title VI
Administrative Complaints Challenging Permits
ATTENTION COMMENTERS:
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* Comment period is 90 days: February 5 - May 6,
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US EPA - Attention: Title VI Guidance
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Interim Guidance For Investigating Title VI
Administrative Complaints Challenging Permits
Introduction
This interim guidance is intended to provide a
framework for the processing by EPA's Office of Civil
Rights (OCR) of complaints filed under Title VI of the
Civil Rights Act of 1964, as amended (Title VI)1,
alleging discriminatory effects resulting from the
issuance of pollution control permits by state and
local governmental agencies that receive EPA funding.
In the past, the Title VI complaints filed with EPA
typically alleged discrimination in access to public
water and sewerage systems or in employment practices.
This interim guidance is intended to update the
Agency's procedural and policy framework to accommodate
the increasing number of Title VI complaints that
allege discrimination in the environmental permitting
context.
As reflected in this guidance, Title VI environmental
permitting cases may have implications for a diversity
of interests, including those of the recipient, the
affected community, and the permit applicant or
permittee. EPA believes that robust stakeholder input
is an invaluable tool for fully addressing Title VI
issues during the permitting process and informally
resolving Title VI complaints when they arise.
Background
No person in the United States shall, on the
ground of race, color, or national origin, be
excluded from participation in, be denied the
benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance.
- Title VI
On February 11, 1994, President Clinton issued
Executive Order 12,898, "Federal Actions To Address
Environmental Justice in Minority Populations and
Low-Income Populations." The Presidential memorandum
accompanying that Order directs Federal agencies to
ensure compliance with the nondiscrimination
requirements of Title VI for all Federally-funded
programs and activities that affect human health or the
environment. While Title VI is inapplicable to EPA
actions, including EPA's issuance of permits, Section
2-2 of Executive Order 12,898 is designed to ensure
that Federal actions substantially affecting human
health or the environment do not have discriminatory
effects based on race, color, or national origin.
Accordingly, EPA is committed to a policy of
nondiscrimination in its own permitting programs.
Title VI itself prohibits intentional discrimination.
The Supreme Court has ruled, however, that Title VI
authorizes Federal agencies, including EPA, to adopt
implementing regulations that prohibit discriminatory
effects. Frequently, discrimination results from
policies and practices that are neutral on their face,
but have the effect of discriminating.2
Facially-neutral policies or practices that result in
discriminatory effects violate EPA's Title VI
regulations unless it is shown that they are justified
and that there is no less discriminatory alternative.
EPA awards grants on an annual basis to many state and
local agencies that administer continuing environmental
programs under EPA's statutes. As a condition of
receiving funding under EPA's continuing environmental
program grants, recipient agencies must comply with
EPA's Title VI regulations, which are incorporated by
reference into the grants. EPA's Title VI regulations
define a "[r]ecipient" as "any state or its political
subdivision, any instrumentality of a state or its
political subdivision, any public or private agency,
institution, organization, or other entity, or any
person to which Federal financial assistance is
extended directly or through another recipient ...."3
Title VI creates for recipients a nondiscrimination
obligation that is contractual in nature in exchange
for accepting Federal funding. Acceptance of EPA
funding creates an obligation on the recipient to
comply with the regulations for as long as any EPA
funding is extended.4
Under amendments made to Title VI by the Civil Rights
Restoration Act of 1987,5 a "program" or "activity"
means all of the operations of a department, agency,
special purpose district, or other instrumentality of a
state or of a local government, any part of which is
extended Federal financial assistance.6 Therefore,
unless expressly exempted from Title VI by Federal
statute, all programs and activities of a department or
agency that receives EPA funds are subject to Title VI,
including those programs and activities that are not
EPA-funded. For example, the issuance of permits by EPA
recipients under solid waste programs administered
pursuant to Subtitle D of the Resource Conservation and
Recovery Act (which historically have not been
grant-funded by EPA), or the actions they take under
programs that do not derive their authority from EPA
statutes (e.g., state environmental assessment
requirements), are part of a program or activity
covered by EPA's Title VI regulations if the recipient
receives any funding from EPA.
In the event that EPA finds discrimination in a
recipient's permitting program, and the recipient is
not able to come into compliance voluntarily, EPA is
required by its Title VI regulations to initiate
procedures to deny, annul, suspend, or terminate EPA
funding.7 EPA also may use any other means authorized
by law to obtain compliance, including referring the
matter to the Department of Justice (DOJ) for
litigation.8 In appropriate cases, DOJ may file suit
seeking injunctive relief. Moreover, individuals may
file a private right of action in court to enforce the
nondiscrimination requirements in Title VI or EPA's
implementing regulations without exhausting
administrative remedies.9
Overview of Framework for Processing Complaints
While this guidance is directed at the processing of
discriminatory effects allegations, as a general
proposition, Title VI complaints alleging either
discriminatory intent and/or discriminatory effect in
the context of environmental permitting will be
processed by OCR under EPA's Title VI regulations at 40
C.F.R. Part 7. The steps that the Agency will follow in
complaint processing are described below. EPA's Title
VI regulations encourage the informal resolution of all
complaints with the participation of all affected
stakeholders (see step 8 below).
1. Acceptance of the Complaint
Upon receiving a Title VI complaint, OCR will determine
whether the complaint states a valid claim. If it does,
the complaint will be accepted for processing within
twenty (20) calendar days of acknowledgment of its
receipt, and the complainant and the EPA recipient will
be so notified. If OCR does not accept the complaint,
it will be rejected or, if appropriate, referred to
another Federal agency. 40 C.F.R. § 7.120(d)(1).
2. Investigation/Disparate Impact Assessment
Once a complaint is accepted for processing, OCR will
conduct a factual investigation to determine whether
the permit(s) at issue will create a disparate impact,
or add to an existing disparate impact, on a racial or
ethnic population. If, based on its investigation, OCR
concludes that there is no disparate impact, the
complaint will be dismissed. If OCR makes an initial
finding of a disparate impact, it will notify the
recipient and the complainant and seek a response from
the recipient within a specified time period. Under
appropriate circumstances, OCR may seek comment from
the recipient, permittee, and/or complainant(s) on
preliminary data analyses before making an initial
finding concerning disparate impacts.
3. Rebuttal/Mitigation
The notice of initial finding of a disparate impact
will provide the recipient the opportunity to rebut
OCR's finding, propose a plan for mitigating the
disparate impact, or to "justify" the disparate impact
(see step 4 below regarding justification). If the
recipient successfully rebuts OCR's finding, or, if the
recipient elects to submit a plan for mitigating the
disparate impact, and, based on its review, EPA agrees
that the disparate impact will be mitigated
sufficiently pursuant to the plan, the parties will be
so notified. Assuming that assurances are provided
regarding implementation of such a mitigation plan, no
further action on the complaint will be required.
4. Justification
If the recipient can neither rebut the initial finding
of disparate impact nor develop an acceptable
mitigation plan, then the recipient may seek to
demonstrate that it has a substantial, legitimate
interest that justifies the decision to proceed with
the permit notwithstanding the disparate impact. Even
where a substantial, legitimate justification is
proffered, OCR will need to consider whether it can be
shown that there is an alternative that would satisfy
the stated interest while eliminating or mitigating the
disparate impact.
5. Preliminary Finding of Noncompliance
If the recipient fails to rebut OCR's initial finding
of a disparate impact and can neither mitigate nor
justify the disparate impact at issue, OCR will, within
180 calendar days from the start of the complaint
investigation, send the recipient a written notice of
preliminary finding of noncompliance, with a copy to
the grant award official (Award Official) and the
Assistant Attorney General for Civil Rights. OCR's
notice may include recommendations for the recipient to
achieve voluntary compliance and, where appropriate,
the recipient's right to engage in voluntary compliance
negotiations. 40 C.F.R. § 7.115(c).
6. Formal Determination of Noncompliance
If, within fifty (50) calendar days of receipt of the
notice of preliminary finding, the recipient does not
agree to OCR's recommendations or fails to submit a
written response demonstrating that OCR's preliminary
finding is incorrect or that voluntary compliance can
be achieved through other steps, OCR will issue a
formal written determination of noncompliance, with a
copy to the Award Official and the Assistant Attorney
General for Civil Rights. 40 C.F.R. § 7.115(d).
7. Voluntary Compliance
The recipient will have ten (10) calendar days from
receipt of the formal determination of noncompliance
within which to come into voluntary compliance. 40
C.F.R. § 7.115(e). If the recipient fails to meet this
deadline, OCR will start procedures to deny, annul,
suspend, or terminate EPA assistance in accordance with
40 C.F.R. § 7.130(b) and consider other appropriate
action, including referring the matter to DOJ for
litigation.
8. Informal Resolution
EPA's Title VI regulations call for OCR to pursue
informal resolution of administrative complaints
wherever practicable. 40 C.F.R. § 7.120(d)(2).
Therefore, OCR will discuss, at any point during the
process outlined above, offers by recipients to reach
informal resolution, and will, to the extent
appropriate, endeavor to facilitate the informal
resolution process and involvement of affected
stakeholders. Ordinarily, in the interest of conserving
EPA investigative resources for truly intractable
matters, it will make sense to encourage dialogue at
the beginning of the investigation of complaints
accepted for processing. Accordingly, in notifying a
recipient of acceptance of a complaint for
investigation, OCR will encourage the recipient to
engage the complainant(s) in informal resolution in an
effort to negotiate a settlement.
Rejecting or Accepting Complaints for Investigation
It is the general policy of OCR to investigate all
administrative complaints that have apparent merit and
are complete or properly pleaded. Examples of
complaints with no apparent merit might include those
which are so insubstantial or incoherent that they
cannot be considered to be grounded in fact.
A complete or properly pleaded complaint is:10
1. in writing, signed, and provides an avenue for
contacting the signatory (e.g., phone number,
address);
2. describes the alleged discriminatory act(s) that
violates EPA's Title VI regulations (i.e., an act
of intentional discrimination or one that has the
effect of discriminating on the basis of race,
color, or national origin);
3. filed within 180 calendar days of the alleged
discriminatory act(s)11; and
4. identifies the EPA recipient that took the alleged
discriminatory act(s).
EPA's Title VI regulations contemplate that OCR will
make a determination to accept, reject, or refer (to
the appropriate Federal agency) a complaint within
twenty (20) calendar days of acknowledgment of its
receipt. 40 C.F.R. § 7.120(d)(1). Whenever possible,
within the twenty-day period, OCR will establish
whether the person or entity that took the alleged
discriminatory act is in fact an EPA recipient as
defined by 40 C.F.R. § 7.25. If the complaint does not
specifically mention that the alleged discriminatory
actor is an EPA financial assistance recipient, OCR may
presume so for the purpose of deciding whether or not
to accept the complaint for further processing.
Timeliness of Complaints
Under EPA's Title VI regulations a complaint must be
filed within 180 calendar days of the alleged
discriminatory act. 40 C.F.R. § 7.120(b)(2). EPA
interprets this regulation to mean that complaints
alleging discriminatory effects resulting from issuance
of a permit must be filed with EPA within 180 calendar
days of issuance of the final permit. However, OCR may
waive the 180-day time limit for good cause. 40 C.F.R.
§ 7.120(b)(2).
OCR will determine on a case-by-case basis whether to
waive the time limit for good cause. EPA believes that,
in order to encourage complainants to exhaust
administrative remedies available under the recipient's
permit appeal process, thereby fostering early
resolution of Title VI issues, it is appropriate to
consider in making a good cause determination a
complainant's pursuit of its Title VI concerns through
the recipient's administrative appeal process. Under
such circumstances and after considering other factors
relevant to the particular case, OCR may waive the time
limit if the complaint is filed within a reasonable
time period (e.g., 60 calendar days) after the
conclusion of the administrative appeal process.
In addition, it is OCR's policy not to reject
automatically complaints challenging permits where such
complaints are filed prior to final permit issuance by
the recipient. Rather, OCR should provide the recipient
with the information contained in the complaint for
consideration in the permit issuance process. OCR also
may notify the complainant that the complaint is
premature, but that OCR is keeping the complaint on
file in an inactive status pending issuance of a final
permit by the recipient. Should the recipient issue a
final permit, OCR could initiate an investigation if
OCR or the complainant believe that issuance of the
final permit may be discriminatory.
Permit Modifications
EPA believes that permit modifications that reduce
adverse impacts and improve the environmental operation
of the facility should be encouraged. Similarly, the
Agency does not want to discourage merely
administrative modifications, such as a facility name
change, or otherwise beneficial modifications that are
neutral in terms of their impact on human health or the
environment. Because such modifications do not cause or
add to adverse impacts, Title VI discriminatory effects
claims based on them are likely to be dismissed.
Permit modifications that result in a net increase of
pollution impacts, however, may provide a basis for an
adverse disparate impact finding, and, accordingly, OCR
will not reject or dismiss complaints associated with
permit modifications without an examination of the
circumstances to determine the nature of the
modification.
In the permit modification context (as opposed to
permit renewals), the matter under consideration by the
recipient is the modified operation. Accordingly, the
complaint must allege, and, to establish a disparate
impact OCR must find, adverse impacts specifically
associated with the modification.
Investigations of Allegedly Discriminatory Permit
Renewals
Generally, permit renewals should be treated and
analyzed as if they were new facility permits, since
permit renewal is, by definition, an occasion to review
the overall operations of a permitted facility and make
any necessary changes. Generally, permit renewals are
not issued without public notice and an opportunity for
the public to challenge the propriety of granting a
renewal under the relevant environmental laws and
regulations.
Impacts and the Disparate Impact Analysis
Evaluations of disparate impact allegations should be
based upon the facts and totality of the circumstances
that each case presents. Rather than use a single
technique for analyzing and evaluating disparate impact
allegations, OCR will use several techniques within a
broad framework. Any method of evaluation chosen within
that framework must be a reasonably reliable indicator
of disparity.
In terms of the types of impacts that are actionable
under Title VI in the permitting context, OCR will,
until further notice, consider impacts cognizable under
the recipient's permitting program in determining
whether a disparate impact within the meaning of Title
VI has occurred. Thus, OCR will accept for processing
only those Title VI complaints that include at least an
allegation of a disparate impact concerning the types
of impacts that are relevant under the recipient's
permitting program.12
The general framework for determining whether a
disparate impact exists has five basic steps.
Step 1: Identifying the Affected Population
The first step is to identify the population affected
by the permit that triggered the complaint. The
affected population is that which suffers the adverse
impacts of the permitted activity. The impacts
investigated must result from the permit(s) at issue.
The adverse impacts from permitted facilities are
rarely distributed in a predictable and uniform manner.
However, proximity to a facility will often be a
reasonable indicator of where impacts are concentrated.
Accordingly, where more precise information is not
available, OCR will generally use proximity to a
facility to identify adversely affected populations.
The proximity analysis should reflect the environmental
medium and impact of concern in the case.
Step 2: Determining the Demographics of the
Affected Population
The second step is to determine the racial and/or
ethnic composition of the affected population for the
permitted facility at issue in the complaint. To do so,
OCR uses demographic mapping technology, such as
Geographic Information Systems (GIS). In conducting a
typical analysis to determine the affected population,
OCR generates data estimating the race and/or ethnicity
and density of populations within a certain proximity
from a facility or within the distribution pattern for
a release/impact based on scientific models. OCR then
identifies and characterizes the affected population
for the facility at issue. If the affected population
for the permit at issue is of the alleged racial or
ethnic group(s) named in the complaint, then the
demographic analysis is repeated for each facility in
the chosen universe(s) of facilities discussed below.
Step 3: Determining the Universe(s) of
Facilities and Total Affected Population(s)
The third step is to identify which other permitted
facilities, if any, are to be included in the analysis
and to determine the racial or ethnic composition of
the populations affected by those permits. There may be
more than one appropriate universe of facilities. OCR
will determine the appropriate universe of facilities
based upon the allegations and facts of a particular
case. However, facilities not under the recipient's
jurisdiction should not be included in the universe of
facilities examined.
If in its investigation OCR finds that the universe of
facilities selected by the complainant is not supported
by the facts, OCR will explain what it has found and
provide the complainant the opportunity to support the
use of its proposed universe. If the complainant cannot
adequately support the proposed universe, then OCR
should investigate a universe of facilities based upon
the facts available and OCR's reasonable interpretation
of the theory of the case presented. Once the
appropriate universe(s) of facilities is determined,
the affected population for each facility in the
universe should be added together to form the Total
Affected Population.
Ordinarily, OCR will entertain cases only in which the
permitted facility at issue is one of several
facilities, which together present a cumulative burden
or which reflect a pattern of disparate impact.13 EPA
recognizes the potential for disparate outcomes in this
area because most permits control pollution rather than
prevent it altogether. Consequently, permits that
satisfy the base public health and environmental
protections contemplated under EPA's programs
nonetheless bear the potential for discriminatory
effects where residual pollution and other cognizable
impacts are distributed disproportionately to
communities with particular racial or ethnic
characteristics. Based on its experience to date, the
Agency believes that this is most likely to be true
either where an individual permit contributes to or
compounds a preexisting burden being shouldered by a
neighboring community, such that the community's
cumulative burden is disproportionate when compared
with other communities; or where an individual permit
is part of a broader pattern pursuant to which it has
become more likely that certain types of operations,
with their accompanying burdens, will be permitted in a
community with particular racial or ethnic
characteristics.
Step 4: Conducting a Disparate Impact
Analysis
The fourth step is to conduct a disparate impact
analysis that, at a minimum, includes comparing the
racial or ethnic characteristics within the affected
population. It will also likely include comparing the
racial characteristics of the affected population to
the non-affected population. This approach can show
whether persons protected under Title VI are being
impacted at a disparate rate. EPA generally would
expect the rates of impact for the affected population
and comparison populations to be relatively comparable
under properly implemented programs. Since there is no
one formula or analysis to be applied, OCR may identify
on a case-by-case basis other comparisons to determine
disparate impact.
Step 5: Determining the Significance of the
Disparity
The final phase of the analysis is to use arithmetic or
statistical analyses to determine whether the disparity
is significant under Title VI. OCR will use trained
statisticians to evaluate disparity calculations done
by investigators. After calculations are informed by
expert opinion, OCR may make a prima facie disparate
impact finding, subject to the recipient's opportunity
to rebut.
Mitigation
EPA expects mitigation to be an important focus in the
Title VI process, given the typical interest of
recipients in avoiding more draconian outcomes and the
difficulty that many recipients will encounter in
justifying an "unmitigated," but nonetheless disparate,
impact. In some circumstances, it may be possible for
the recipient to mitigate public health and
environmental considerations sufficiently to address
the disparate impact. The sufficiency of such
mitigation should be evaluated in consultation with
experts in the EPA program at issue. OCR may also
consult with complainants. Where it is not possible or
practicable to mitigate sufficiently the public health
or environmental impacts of a challenged permit, EPA
will consider "supplemental mitigation projects"
(SMPs), which, when taken together with other
mitigation efforts, may be viewed by EPA as sufficient
to address the disparate impact. An SMP can, for
example, respond to concerns associated with the
permitting of the facility raised by the complainant
that cannot otherwise be redressed under Title VI
(i.e., because they are outside those considerations
ordinarily entertained by the permitting authority).
Justification
If a preliminary finding of noncompliance has not been
successfully rebutted and the disparate impact cannot
successfully be mitigated, the recipient will have the
opportunity to "justify" the decision to issue the
permit notwithstanding the disparate impact, based on
the substantial, legitimate interests of the recipient.
While determining what constitutes a sufficient
justification will necessarily turn on the facts of the
case at hand, OCR would expect that, given the
considerations described above, merely demonstrating
that the permit complies with applicable environmental
regulations will not ordinarily be considered a
substantial, legitimate justification. Rather, there
must be some articulable value to the recipient in the
permitted activity. Because the interests of a state or
local environmental agency are necessarily influenced
and informed by the broader interest of the government
of which it is a part, OCR will entertain
justifications based on broader governmental interests
(i.e., interests not limited by the jurisdiction of the
recipient agency). While the sufficiency of the
justification will necessarily depend on the facts of
the case at hand, the types of factors that may bear
consideration in assessing sufficiency can include, but
are not limited to, the seriousness of the disparate
impact, whether the permit at issue is a renewal (with
demonstrated benefits) or for a new facility (with more
speculative benefits), and whether any of the
articulated benefits associated with a permit can be
expected to benefit the particular community that is
the subject of the Title VI complaint.
Importantly, a justification offered will not be
considered acceptable if it is shown that a less
discriminatory alternative exists. If a less
discriminatory alternative is practicable, then the
recipient must implement it to avoid a finding of
noncompliance with the regulations. Less discriminatory
alternatives should be equally effective in meeting the
needs addressed by the challenged practice. Here,
again, mitigation measures should be considered as less
discriminatory alternatives, including additional
permit conditions that would lessen or eliminate the
demonstrated adverse disparate impacts.
* * * * *
The statements in this document are intended solely as
guidance. This document is not intended, nor can it be
relied upon, to create any rights enforceable by any
party in litigation with the United States. EPA may
decide to follow the guidance provided in this
document, or to act at variance with the guidance,
based on its analysis of the specific facts presented.
This guidance may be revised without public notice to
reflect changes in EPA's approach to implementing the
Small Business Regulatory Enforcement Fairness Act or
the Regulatory Flexibility Act, or to clarify and
update text.
Footnotes
1. 42 U.S.C. §§ 2000d to 2000d-7
2. Department of Justice, Attorney General's Memorandum
for Heads of Departments and Agencies that Provide
Federal Financial Assistance, The Use of the Disparate
Impact Standard in Administrative Regulations Under
Title VI of the Civil Rights Act of 1964, (July 14,
1994).
3. 40 C.F.R. § 7.25 (1996). Title VI applies to Indian
Tribes as EPA recipients only when the statutory
provision authorizing the Federal financial assistance
is not exclusively for the benefit of Tribes.
Otherwise, Tribes are exempt from Title VI.
4. 40 C.F.R. § 7.80(a)(2)(iii)(1996).
5. Pub. L. No. 100-259, 102 Stat. 28 (1988); S. Rep.
No. 64 at 2, 11-16, 100th Cong., reprinted in 1988 U.S.
Code Cong. & Admin. News at 3-4, 13-18.
6. 42 U.S.C. § 2000d-4a.
7. 40 C.F.R. §§ 7.115(e), 7.130(b)(1996); Id. at
7.110(c).
8. 42 U.S.C. § 2000d-1; 40 C.F.R. § 7.130(a).
9. Chester Residents Concerned for Quality Living v.
Seif, No. 97-1125, U.S. App. LEXIS 36797 (3d Cir. Dec.
30, 1997).
10. EPA's Title VI regulations require that the
complaint be in writing, describe the alleged
discriminatory acts that violate the regulations, and
be filed within 180 calendar days of the alleged
discriminatory act(s). 40 C.F.R. § 7.120(b)(1),(2). The
criteria listed above satisfy these regulatory
requirements.
11. Also, see discussion below on Timeliness of
Complaints.
12. Even where a recipient's authority to regulate is
unclear concerning cumulative burden or discriminatory
permitting pattern scenarios (see step 3 below), OCR
will nonetheless consider impacts measured in these
terms because Title VI is a Federal cross-cutting
statute that imposes independent, nondiscrimination
requirements on recipients of Federal funds. As such,
Title VI, separate from and in addition to the
strictures of state and local law, both authorizes and
requires recipients to manage their programs in a way
that avoids discriminatory cumulative burdens and
distributional patterns. Thus, while Title VI does not
alter the substantive requirements of a recipient's
permitting program, it obligates recipients to
implement those requirements in a nondiscriminatory
manner as a condition of receiving Federal funds.
13. In some rare instances, EPA may need to determine
whether the impacts of a single permit, standing alone,
may be considered adequate to support a disparate
impact claim. While such a case has not yet been
presented to EPA, it might, for example, involve a
permitted activity that is unique (i.e., "one of a
kind") under a recipient's program
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