Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Final Recipient Guidance), 10625-10635 [05-3448]

Download as PDF Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices C. Aggregate Exposure 1. Dietary exposure. The Dietary Exposure Evaluation Model (DEEM), version 7.76, of Novigen Sciences, Inc. was used to estimate the dietary exposure to the U.S. population and critical sub-populations resulting from the use of sulfuryl fluoride under the conditions proposed. The highest potential chronic exposures to sulfuryl fluoride was to children ages 1 to 6 years resulting from the consumption of treated commodities totaling 0.00009 mg/kg/bwt/day. Likewise, the highest potential chronic exposure to fluoride was to children ages 1 to 6 years with a highest estimated exposure of 0.005 mg/kg/bwt/day. i. Food. Food tolerances as inorganic fluorine compounds exist to support the uses of Cryolite (insecticide) and ProFume on various food and feed commodities in the United States. The U.S. EPA, in the 2004 ProFume registration decision, conservatively estimates that the dietary exposures to fluoride due to all sources and routes (including the fluorination of water and the potential for fluoride residues resulting from the uses of Cryolite) could be as high as 0.0397 mg/kg/bwt/ day. No toxicological endpoint attributable to a single exposure was identified in the available toxicology studies on sulfuryl fluoride or inorganic fluoride that would be applicable for an acute dietary exposure. ii. Drinking water. There is no anticipated exposure of sulfuryl fluoride to drinking water. As a public health tool to aid in the prevention of dental caries, fluoride is added to some domestic water supplies at generally 0.8 to 1.0 ppm. 2. Non-dietary exposure. Sulfuryl fluoride (as Vikane specialty gas fumigant) is presently used to fumigate homes and other structures to control wood infesting insects. The existing Vikane use patterns and exposed populations are not expected to overlap with the intended post-harvest uses of ProFume. D. Cumulative Effects The primary degradation product of sulfuryl fluoride is fluoride. The toxicity of fluoride in various forms has been extensively reviewed and is used as an additive in treated water supplies, toothpastes, mouth rinses, and other treatments for the prevention of dental caries. It is also prescribed in therapeutic amounts for the treatment of osteoporosis. Fluoride is naturally present in both food and water in varying amounts, and has been added to public water supplies to fight dental VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 caries. The recommended concentration of fluoride (usually as fluorosilicic acid) in treated water supplies is 0.8 to 1.0 ppm. The Third Report on Nutrition Monitoring in the United States says that ‘‘Food contributes only small amounts of fluoride and monitoring the diet for fluoride intake is not very useful for current public health concerns. The sub-population most susceptible to fluoride is children. For this reason a number of studies have attempted to quantify the fluoride intake from a variety of sources. The total daily intake of fluoride from water (used to prepare formula, juices, and other foods) for infants ages birth to 9 months ranged to 1.73 mg with means from 0.29 to 0.38 mg. Assuming a body weight of 10 kg, these amounts are equivalent to 0.03 to 0.04 mg/kg/day. These levels of dietary exposure in combination with the potential dietary exposures that the proposed uses of ProFume would represent (chronic dietary exposures of 0.005 mg/kg/bwt/day) are considerably lower than the U.S. EPA MCLG for fluoride of 0.114 mg/kg/bwt/day. E. Safety Determination 1. U.S. population. Aggregate risk from exposure to sulfuryl fluoride would be minimal because of its rapid dissipation from any fumigated commodity and because it is not expected to be present at the time of food consumption. The sulfuryl fluoride residues in fumigated foods are expected to be non-detectable at the point of food consumption. Furthermore, if residues were considered as high as what is found immediately following the 24 hour aeration period, the Margin of Exposure to the most sensitive population (children) is estimated to be greater than 150,000-fold for chronic exposures. Exposure to fluoride, the residue of interest for sulfuryl fluoride, can occur from foods, water, and dental treatments. The additional fluoride residues in some commodities fumigated with sulfuryl fluoride are indistinguishable from the natural levels of fluoride already present and would therefore also fall within the U.S. EPA Threshold of Regulation Policy. Alternatively, fluoride in other commodities are expected to contribute to the fluoride that is ingested, but at levels far below other sources, especially treated water and dentrifices. Chronic exposure to fluoride resulting from the proposed uses of ProFume (0.005 mg/kg/day) is much lower than the U.S. EPA’s MCLG of 0.114 mg/kg/ bwt/day calculated for exposure to fluorinated water. In addition, there is no directly applicable scientific PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 10625 documentation of adverse medical effects at levels of fluorine below 0.23 mg/kg/day. 2. Infants and children. Chronic exposure to fluoride from the consumption of ProFume treated commodities would be approximately 0.005 mg/kg/day for a child age 1 to 6 years. This value is much lower than the U.S. EPA MCLG of 0.114 mg/kg/bwt/day calculated for exposure to fluorinated water. F. International Tolerances There is no Codex maximum residue level established for residues of fluoride on any food or feed crop. [FR Doc. 05–4281 Filed 3–3–05; 8:45 am BILLING CODE 6560–50–S ENVIRONMENTAL PROTECTION AGENCY [FRL–7875–9] Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Final Recipient Guidance) Environmental Protection Agency (EPA). ACTION: Agency guidance. AGENCY: SUMMARY: EPA’s Office of Civil Rights is soliciting comments on the Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Final Recipient Guidance). This guidance significantly revises the previous Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) issued for public comment in June 2000. The revisions made in this document reflect and include public involvement considerations suggested in comments the Office of Civil Rights (OCR) received on the Draft Recipient Guidance, at public participation sessions OCR held in various states over the last two years, and from other public involvementrelated discussions and information. This guidance has been developed for recipients of EPA assistance that implement environmental permitting programs. It discusses various approaches and suggests tools recipients may wish to use to help enhance the public involvement aspects of their current permitting programs and reduce potential issues related to Title VI of the Civil Rights Act of 1964 (Title VI) and EPA’s regulations implementing Title VI. E:\FR\FM\04MRN1.SGM 04MRN1 10626 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices Comments on this draft final guidance must be submitted on or before 30 days from the date of this publication in the Federal Register. EPA will review all timely comments and determine if revisions to the guidance are necessary. ADDRESSES: Written comments on the guidance document should be mailed to: Title VI Recipient Guidance, U.S. Environmental Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania Avenue NW., Washington, DC 20460, or submitted to the following e-mail address: civilrights@epa.gov. Please include your name, address and optionally, your affiliation. FOR FURTHER INFORMATION CONTACT: Karen Randolph, U.S. Environmental Protection Agency, Office of Civil Rights (1201A), 1200 Pennsylvania Avenue NW., Washington, DC 20460–1000, telephone (202) 343–9679. SUPPLEMENTARY INFORMATION: DATES: Table of Contents A. Preamble B. Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs A. Preamble Today’s Federal Register document contains the guidance document entitled, the Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Final Recipient Guidance). It offers recipients 1 of U.S. Environmental Protection Agency (EPA) assistance2 that implement environmental permitting programs suggestions on public involvement approaches they may use to help enhance their current permitting programs to better address potential issues related to Title VI of the Civil Rights Act of 1964, as amended, (Title VI) and EPA’s Title VI 1 ‘Recipient’ is defined as ‘‘any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.’’ 40 CFR 7.25. 2 EPA assistance is defined as ‘‘any grant or cooperative agreement, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which EPA provides or otherwise makes available assistance in the form of: Funds; Services of personnel; or Real or personal property or any interest in or use of such property, including Transfers or leases of such property for less than fair market value or for reduced consideration; and Proceeds for a subsequent transfer or lease of such property if EPA’s share of its fair market value is not returned to EPA.’’ VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 implementing regulations.3 The Draft Final Recipient Guidance addresses and summarizes major public involvement considerations suggested in comments EPA’s Office of Civil Rights (OCR) received on the Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance), comments and suggestions stakeholders made at public participation sessions OCR held in various states in 2003–2004, and other public involvement-related resources. This Draft Final Recipient Guidance will replace the Draft Recipient Guidance which was issued in June 2000.4 Much of the information in the Draft Final Recipient Guidance is also based on EPA’s commitment to early and meaningful public involvement throughout the entire permitting process. Entities applying for EPA financial assistance submit assurances with their applications stating that they will comply with the requirements of EPA’s regulations implementing Title VI with respect to their programs or activities.5 When the recipient receives EPA assistance, they accept the obligation to comply with EPA’s Title VI implementing regulations. Persons, or their authorized representatives, who believe Federal financial assistance recipients are not administering their programs in a nondiscriminatory manner may file administrative complaints with EPA or other relevant Federal agencies. The complaint must be filed within 180 calendar days of a particular action taken by the recipient (such as the issuance of an environmental permit) that allegedly has a discriminatory purpose or effect.6 The Draft Recipient Guidance was published concurrently with the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance) 7 in June 2000. Prior to issuing the Draft Recipient 3 Title VI of the Civil rights Act of 1964, Pub. L. 88–352, 78 Stat. 241 (codified as amended at 42 U.S.C. 2000d to 2000–7); 49 CFR Part 7. 4 65 Fed. Reg. 39655 (2000). 5 40 CFR 7.80, EPA Form 4700–4 and Standard Form 424. 6 The filing or acceptance for investigation of a Title VI complaint does not suspend an issued permit. Title VI complaints concern the programs and activities being implemented by Federal financial assistance recipients, and any EPA investigation of such a complaint primarily concerns the actions of recipients rather than permittees. While a particular permitting decision may act as a trigger for a complaint, allegations may involve a wider range of issues or alleged adverse disparate impacts within the legal authority of recipients. 7 65 FR 39650 (2000). PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 Guidance, EPA considered public input, the work of the Title VI Implementation Advisory Committee of EPA’s National Advisory Council for Environmental Policy and Technology (NACEPT),8 the work of the Environmental Council of States (ECOS),9 particularly its October 9, 1998 draft Proposed Elements of State Environmental Justice Programs, and input from available state environmental justice programs. The Draft Recipient Guidance discussed approaches to complaints alleging discrimination during the public participation portion of the permitting process, as well as complaints alleging discriminatory human health effects, environmental effects and adverse disparate impacts resulting from the issuance of permits. The Draft Recipient Guidance also discussed how these approaches could be used to address concerns before the filing of complaints. The Draft Revised Investigation Guidance discussed how OCR would process complaints alleging adverse disparate health impacts from the issuance of environmental permits. Both documents discussed issues regarding disparate and adverse impacts. To avoid redundancy, OCR decided that the Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Final Recipient Guidance) would only focus on approaches recipients can use to enhance the public involvement portion of their permitting programs. Discussions on disparate and other adverse impacts will be included in the Revised Investigative Guidance which may be finalized at a later date. Today, EPA is issuing the Draft Final Recipient Guidance. B. Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs I. Introduction A. Purpose of this Guidance 8 NACEPT consists of a representative crosssection of EPA’s partners and principle constituents who provide advice and recommendations to the Administrator of EPA on a broad range of environmental policy, technology, and management issues regarding new strategies that the Agency is developing. The Council is a proactive, strategic panel of experts that identifies emerging challenges facing EPA and responds to specific charges requested by the Administrator and the program office managers. 9 The mission of ECOS involves championing the role of the States in environmental protection and articulating state positions to Congress, federal agencies and the public on environmental issues. This mission is often advanced by writing letters, making presentations, and working in coalition with other groups to advocate on behalf of the states on environmental matters. E:\FR\FM\04MRN1.SGM 04MRN1 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices B. Title VI of the Civil Rights Act of 1964 C. EPA’s Guiding Principles for Title VI for the Recipient Guidance D. The Interface between Public Involvement and Title VI E. Scope and Flexibility II. Approaches to Meaningful Public Involvement A. Developing and Implementing an Effective Public Involvement Plan B. Training Staff C. Involving the Public Early and Often Throughout the Permitting Process D. Encouraging Stakeholder and Intergovernmental Involvement E. Equipping Communities with Tools to Help Ensure Effective Public Involvement F. Making Assistance/Grants Available to the Public G. Using Alternative Dispute Resolution Techniques III. Suggested Approaches for Reducing Some Common Title VI Complaints A. Language Issues B. Siting Issues C. Insufficient Public Notices D. Information Repository IV. Evaluating Approaches for Meaningful Public Involvement V. Due Weight VI. Conclusion VII. Additional Resources I. Introduction A. Purpose of this Guidance This guidance is written for recipients 10 of U.S. Environmental Protection Agency (EPA) assistance 11 that administer environmental permitting programs. It offers suggestions on approaches and ways to address situations that might reduce the likelihood of the filing of complaints alleging public involvement violations of Title VI of the Civil Rights Act of 1964, as amended (Title VI) 12 and EPA’s Title VI implementing regulations.13 The approaches discussed in this 10 Any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, entity, or person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance. 40 CFR 7.25. 11 EPA assistance is defined as ‘‘any grant or cooperative agreement, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which EPA provides or otherwise makes available assistance in the form of: Funds; Services of personnel; or Real or personal property or any interest in or use of such property, including Transfers or leases of such property for less than fair market value or for reduced consideration; and Proceeds for a subsequent transfer or lease of such property if EPA’s share of its fair market value is not returned to EPA.’’ 12 Pub. L. 88–352, 78 Stat. 241 (codified as amended at 42 U.S.C. 2000d to 2000d–7). 13 40 CFR part 7, Nondiscrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency. VerDate jul<14>2003 20:07 Mar 03, 2005 Jkt 205001 guidance may be used to create new public involvement activities or to enhance existing public involvement activities that address allegations of discriminatory public participation practices during the permitting process. This is a guidance document, not a regulation. This document offers suggestions to recipients about enhancing public involvement processes in environmental permitting, and addressing potential Title VI issues before complaints arise. Recipients remain free to use approaches other than the ones suggested here. In addition, EPA recipients may consider other approaches and ideas, either on their own or at the suggestion of interested parties. Interested parties are free to raise questions and objections regarding this guidance and the appropriateness of using these recommendations in a particular situation, and EPA will consider whether the recommendations are appropriate in that situation. This document does not change or act as a substitute for any legal requirements. Rather, the sources of authority and requirements for Title VI programs are the relevant statutory and regulatory provisions. B. Title VI of the Civil Rights Act of 1964 Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin under any program or activity of a Federal financial assistance recipient. Title VI itself prohibits intentional discrimination. However Congress directed that its policy against discrimination by recipients of Federal assistance be implemented, in part, through administrative rulemaking. Since 1964, regulations promulgated by Federal agencies implementing Title VI have uniformly prohibited conduct or actions by a recipient which have the effect of discriminating on the basis of race, color or national origin. Title VI ‘‘delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough remediable, to warrant altering the practices of the Federal grantees that had produced those impacts.’’ 14 EPA initially issued Title VI regulations in 1973 and revised them in 1984. Applicants for EPA financial assistance must submit an assurance with their application stating they will comply with the requirements of EPA’s 14 Alexander v. Choate, 469 U.S. 287, 293–94 (1985). PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 10627 regulations implementing Title VI with respect to their programs or activities.15 Applicants must also adopt grievance procedures that assure the prompt and fair resolution of complaints which allege violations of EPA’s Title VI regulations.16 When an applicant receives EPA assistance, they may not issue permits that are intentionally discriminatory, or use ‘‘criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.’’ 17 Persons, or their authorized representatives, who believe Federal financial assistance recipients are not administering their programs in a nondiscriminatory manner may file administrative complaints with EPA or other relevant Federal agencies. The complaint must be filed within 180 calendar days of a particular action taken by the recipient (such as the issuance of an environmental permit) that allegedly has a discriminatory purpose or effect.18 The primary means of enforcing compliance with Title VI is through voluntary compliance agreements. Suspension or termination of funding is a means of last resort. Executive Order 12250 directs Federal agencies to issue appropriate Title VI implementing directives, either in the form of policy guidance or regulations consistent with requirements prescribed by the Attorney General.19 This guidance was developed as a result of the nature of Title VI complaints received in EPA’s Office of Civil Rights coupled with requests for guidance from state and local agencies. This guidance focuses on public involvement approaches recipients may use to help reduce the likelihood of the public filing Title VI complaints. C. EPA’s Guiding Principles for Title VI for the Recipient Guidance To ensure stakeholder involvement in the development of the Draft Recipient Guidance, EPA established a Title VI Implementation Advisory Committee 15 40 CFR 7.80, EPA Form 4700–4 and Standard Form 424. 16 40 CFR 7.90 17 40 CFR 7.35(b). 18 The filing or acceptance for investigation of a Title VI complaint does not suspend an issued permit. Title VI complaints concern the programs and activities being implemented by Federal financial assistance recipient, and any EPA investigation of such a complaint primarily concerns the actions of recipients rather than permittees. While particular permitting decisions may act as a trigger for a complaint, allegations may involved wider range of issues or alleged adverse disparate impacts within the legal authority of recipients. 19 Executive Order No. 12250, 45 FR 72995 (1980) (section 1–402). E:\FR\FM\04MRN1.SGM 04MRN1 10628 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices (Title VI Advisory Committee) under the National Advisory Council for Environmental Policy and Technology in March 1998. The Title VI Advisory Committee was comprised of representatives from communities, environmental justice groups, state and local governments, industry, and other interested stakeholders. EPA asked the committee to review and evaluate existing techniques that EPA funding recipients could use to administer environmental permitting programs in compliance with Title VI. Techniques evaluated could include tools for assessing potential Title VI concerns and mitigating impacts where they occur. Core components of the Recipient Guidance are based on several threshold principles which members of the Title VI Advisory Committee included in their April 1999, Report of the Title VI Implementation Advisory Committee: Next Steps for EPA, State, and Local Environmental Justice Programs.20 As a result, EPA established guiding principles for implementing Title VI and developing the draft guide. In implementing Title VI and developing this final guidance, EPA is reaffirming its commitment to the following principles: ∑ All persons regardless of race, color or national origin are entitled to a safe and healthful environment. ∑ Strong civil rights enforcement is essential in preventing Title VI violations and complaints. • Enforcement of civil rights laws and environmental laws are complementary, and can be achieved in a manner consistent with sustainable economic development. • Early, preventive steps, whether under the auspices of state and local governments, in the context of voluntary initiatives by industry, or at the initiative of community advocates, are strongly encouraged to prevent potential Title VI violations and complaints. • Meaningful outreach and public participation early and throughout the decision-making process is critical to identify and resolve issues, and to also assure proper consideration of public concerns. • Intergovernmental and innovative problem-solving provide the most comprehensive response to many concerns raised in Title VI complaints. D. The Interface Between Public Involvement and Title VI Because public involvement plays a critical role in understanding and 20 For a copy of this report, see: http: www.epa.gov/civilrights/t6faca.htm. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 assessing how issues affect a community, meaningful public involvement should be an integral part of the permit decision-making process. Meaningful public involvement consists of informing, consulting, and working with communities at various stages of the permitting process to address their concerns. Appropriate collaboration during the permitting process can foster trust, and help establish credible, solid relationships between permitting agencies and communities. Such collaboration may serve to ensure that concerns are identified and addressed in a timely manner to possibly reduce the filing of some Title VI complaints. The fundamental premise of EPA’s 2003 Public Involvement Policy is that ‘‘EPA should continue to provide for meaningful public involvement in all its programs, and consistently look for new ways to enhance public input. EPA staff and managers should seek input reflecting all points of view and should carefully consider this input when making decisions. EPA also should work to ensure that decision-making processes are open and accessible to all interested groups, including those with limited financial and technical resources, English proficiency, and/or past experience participating in environmental decision-making. Such openness to the public increases EPA’s credibility, improves the Agency’s decision-making processes, and can impact final decision outcomes. At the same time, EPA should not accept any recommendation or proposal without careful, critical examination.’’ 21 In 1999 the Office of Solid Waste conducted a series of seven case studies to determine if the redevelopment of EPA Brownfields 22 Pilots had been impeded by Title VI complaints, and to address concerns of whether these complaints may deter businesses from redeveloping Brownfields sites. The study, ‘‘Brownfields Title VI Case Studies,’’ 23 indicated that community residents are not likely to file Title VI complaints when the redevelopment process provides for early and meaningful community involvement, 21 For a copy of this report, see: https:// www.epa,gov/publicinvolvement/policy2003/final policy, pdf. 22 EPA defines Brownfields as real property that is expanded, redeveloped, or reused which may contain or potentially contain a hazardous substance, pollutant or contaminant. Cleaning and reinvesting these properties take development pressures off of undeveloped, openland which help to improve and protect the environment. For more information on Brownfields Cleanup and Redevelopment, see: https://www.epa.govswerosps/ bf/ 23 For a copy of this report, see: https:// www.epa.gov/oswer/ej/ejndx.htm#titlevi or call the hotline at 1–800–424–9346. PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 and creates a benefit for the local community. In several of the case study Pilots, communities were involved in identifying and helping to resolve issues during the early stages of the process which helped build trust between stakeholders and a sense of ownership for community members. According to those interviewed, community outreach and involvement served to prevent the filing of Title VI complaints and other opposition to development projects. The interface between public involvement and Title VI often arises when racial or ethnic communities believe that they’ve been discriminated against as a result of a decision made in the permitting process. OCR believes that many of these assertions of discrimination arise from a failure to adequately involve the public in the pre-decisional process prior to permit issuance. In situations such as this, a finding of discrimination in the substantive outcome of a process, such as discriminatory human health or environmental effects is not necessary. Violations of Title VI or EPA’s Title VI regulations can be based solely on discriminatory actions in the procedural aspects of the permitting process. Many Title VI complaints center around allegations of discrimination that may have been prevented, mitigated, or resolved if certain public involvement practices had been implemented by recipient agencies. OCR believes that if recipients focus on early, inclusive and meaningful public involvement throughout the entire permitting process, the likelihood of complaints alleging discrimination in the public involvement process, will be reduced. E. Scope and Flexibility This guidance was written at the request of the states and is intended to offer suggestions to help state and local recipients of EPA financial assistance develop and enhance the public involvement portion of their existing permitting programs. This guidance offers a flexible framework of public involvement approaches. The information and tools discussed in this guidance include proactive public involvement activities which EPA recipients may use to help better address situations that might otherwise result in complaints filed alleging violations of Title VI and EPA’s Title VI implementing regulations. EPA knows that because recipients may have different Title VI concerns in communities within their jurisdiction, different levels of resources, and different organizational structures, a ‘‘one-size-fits-all’’ Title VI public involvement approach will not E:\FR\FM\04MRN1.SGM 04MRN1 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices adequately address every program’s needs. Recipients are therefore encouraged to use the activities or approaches in this guidance that will be most beneficial in addressing each situation accordingly. While this guidance is intended to focus on issues related to public involvement in environmental permitting, recipients may also consider developing proactive approaches to promote equitable compliance assurance and enforcement of environmental laws within individual jurisdictions. Even though recipients are not required to implement the Title VI public involvement approaches described in this guidance, they are required to operate their programs in compliance with the nondiscrimination requirements of Title VI and EPA’s implementing regulations. II. Approaches to Meaningful Public Involvement This guidance suggests a number of public involvement approaches or elements recipients may want to consider adopting and implementing to help address Title VI related concerns in their permitting programs. The approaches described here are not intended to be mutually exclusive. The objective of these approaches is to have recipients fully engage as many members of the affected community as possible in the discussions and decisions made regarding issues in their community. Because of differences in culture, levels of experience, knowledge, and financial resources, recipients are encouraged to combine portions of several, or use as many approaches to the extent appropriate to satisfy their program needs. Recipients may couple these approaches with existing approaches already in use to better implement their Title VI programs. Recipients are also encouraged to develop and implement additional approaches not mentioned in this guidance. OCR may consider the outcomes of any approaches in the analysis of a Title VI complaint that relates to programs, activities or methods of administration.24 Suggested approaches are listed below. A. Developing and Implementing an Effective Public Involvement Plan A Public Involvement Plan (PIP) is a document that serves as the basic foundation of any good public involvement program. PIPs identify community concerns and discuss the approaches recipients plan to take to 24 For further discussion of the concept of giving ‘‘due weight’’ to a recipient’s compliance efforts in the context of a Title VI complaint, see Section V. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 address those concerns through various outreach activities. An effective PIP includes discussions of what recipients will do to ensure that the needs and concerns of the affected community are addressed. In addition, an effective PIP strives to keep the community informed of the public involvement opportunities available to them during the decisionmaking process. If implemented properly, an effective PIP will expedite the flow of information for unexpected events, answer basic questions on issues related to the community’s concerns, and help ensure better decision outcomes to benefit the affected community. Equally important, an effective PIP will provide members of the affected communities with a sense of partnership in the decision-making process underlying the permitting process. For these reasons, communities and other affected groups should be included in the development of the PIP. Recipients may decide to take the lead in contacting the necessary groups and developing their PIP as an agency, or may use a neutral third party to convene the relevant groups and facilitate the process. Either way, communities and all those affected by the decision outcome should be involved in developing the PIP, as well as ensuring that the planning efforts of the recipient agency address those issues that are important to them.25 An effective PIP will include the following information: (1) An overview of the recipient’s plan of action for addressing the community’s needs and concerns, (2) A description of the community (including demographics, history, and background), (3) A contact list of agency officials with phone numbers and email addresses to allow the public to communicate via phone or internet, (4) A list of community’s concerns (past and present), (5) A detailed plan of action (outreach activities) recipient will take to address concerns, (6) A contingency plans for unexpected events, (7) Location(s) where public meetings will be held, (8) Contact names for obtaining translation of documents and/or interpreters for meetings, (9) Local media contacts; and (10) Location of the information repository. 25 For suggestions on how to develop a Public Involvement Plan, see: https://www.epa.gov/ epaoswer/hazwaste/permit/pubpart/manual.htm, https://www.epa.gov/superfund/tools/cag/ cilhandbook.pdf, and https://web.em.doe.gov/ ftplink/public/doeguide.pdf. PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 10629 A PIP may change from one affected community group to another or for the same community group over time depending on the types of facilities in the community and the environmental issues faced by the community. PIPs are public documents that should always be available for public viewing. PIPs should be living documents that can easily be revised at any time to effectively address the needs and concerns of the affected community. Because of the informative/exchange age in which we live, PIPs should be made available for the public in hard copy as well as electronically by way of the Internet. PIPs should contain web addresses of agency officials to allow the public the ability to communicate via the internet. B. Training Staff To understand the importance of building relationships with communities, recipients may need to make internal commitments to tailor their programs so that public involvement becomes a part of the culture of how staff are trained and programs operate. A successful public involvement program should consist of a team of knowledgeable agency staff (possibly from different program offices within the recipient agency) who are committed to, and have the ability to reach out and engage the community early in the permitting process. Because the public may sometimes harbor frustration towards public agency officials who may not be certain about how to properly address an issue within the scope of a public meeting, it is critical for those on the public involvement team to have broad-based skills. Such skills include knowing how to communicate, understand, and address concerns of the general public. In addition, the team should be able to work well together and make sure that everyone thoroughly understands and is able to articulate agency policy, perspectives, and operating procedures of their program in a manner which the public can understand. To be most effective, the public involvement team should include at a minimum, staff capable of serving in permitting and community liaison roles. Although most staff may not have readily acquired public involvement understanding or outreach skills to communicate and work out disputes between their agency and the public in a polished manner, through training, many can acquire them. Training should include ensuring that there is a thorough knowledge of all of the applicable requirements as well as how to engage the public throughout the E:\FR\FM\04MRN1.SGM 04MRN1 10630 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices entire permitting process. Team members or program staff should know and be able to explain ‘‘what to do, how to do it, and when to do it’’ for the programs they work in. In addition, training should include sessions on how to actively listen to the public’s concerns, the importance of seriously considering the public’s opinions, and addressing the public’s questions in an understandable, prompt and respectful manner. Training that emphasizes these points among others may reduce the likelihood of controversy, permitting delays and the filing of Title VI complaints. While training alone does not guarantee that delays in the permitting process or the filing of Title VI complaints will no longer occur, it is a helpful adjunct to any dispute avoidance and resolution process. Basic elements for an effective public involvement training program include: • A review of EPA’s Title VI regulations and how those regulations apply and are addressed in the context of environmental permitting programs; • Step by step training on how to explain the applicable environmental program regulations to the public in a clear and concise manner; • Cultural and community relations sensitization; • How to engage in a dialogue and collaboration, as well as how to build and maintain trust and mutual respect with communities; • Skills and techniques to enable staff to effectively address community concerns in a clear and concise manner; • A basic use of available technological communication tools such as the internet, databases, GIS tools and site maps, etc. to help identify and address potential issues in affected communities that may give rise to Title VI concerns; and • Alternative dispute resolution techniques to enable staff to design and carry out a collaborative and informal process that can help resolve Title VI concerns.26 C. Involving the Public Early and Often Throughout the Permitting Process Public involvement done early and often, is essential for the success of any permitting program. Public input is a valuable element which can influence decisions made in communities hosting proposed and permitted facilities. Early involvement is not only helpful to communities, but to recipients as well, because it encourages information exchange and gives time for both parties to consider and better understand the 26 See section II. G, ‘Using Alternative Dispute Resolution Techniques’. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 others viewpoints before actual decisions are made. Some regulations require permitting programs to include public involvement opportunities during certain stages of the permitting process. While such requirements are designed to ensure that community input is obtained at critical stages of the process, the public may sometimes feel as though these opportunities do not include them as active, ongoing partners. Recipients should tailor and integrate public involvement practices that engage communities into as many stages of the process as appropriate, so that public involvement becomes more of a ‘‘culture’’ of how agencies think and operate, as opposed to a list of measures to check off as they are completed. Examples of ways to encourage early public involvement include: • When soliciting community input regarding upcoming decisions, take steps to get feedback from as many members of the affected community as possible, prior to the meeting. This may mean finding out from community members, who will and will not attend the meeting. Based on that information, provide alternative means of participating for those community members who would not be able to attend the meeting. For example, some members may want to, and have the time to attend every meeting to hear discussions of the issues every step of the way; while others, due to time constraints, would be satisfied submitting written comments or completing agency questionnaires regarding the issues, while trusting that their opinions and concerns will be considered during discussions and when decisions are made. • Requiring facilities to hold preapplication meetings with the public prior to submitting their application to the permitting agency. Such an activity, which is required in some programs, can open the dialogue between the permit applicant and the community in the very early stages of the process. This gives the facility an opportunity to share information with the community and hear and respond to their concerns with greater sensitivity prior to submitting the permit application. Involving the public in identifying potential issues upfront and in discussions regarding possible solutions may help promote ‘‘ownership’’ of decisions and policies made affecting their community. This practice can help maintain community support over the life of the permit. Even though some decisions may not always fully reflect the community’s views, if communities are involved early and throughout the PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 process, they may be more willing to accept the decisions made and continue to participate in discussions to help prevent future issues. Such community involvement may help reduce the likelihood of communities challenging permit decisions toward the end of the permitting process, or filing Title VI complaints alleging discrimination. D. Encouraging Stakeholder and Intergovernmental Involvement Stakeholder involvement is the process of bringing together those people or groups who may be affected by decisions made regarding issues in a community. Stakeholder groups identify, discuss and work toward resolving issues in a collaborative manner. Groups may include but are not limited to communities, businesses, environmental justice groups, Federal, state and local governments, tribes, academia, and environmental and trade organizations. Stakeholder involvement is vital in establishing and maintaining a successful public involvement program. Effective stakeholder involvement ensures that diverse interests are considered and gives community members opportunities to take active roles to effectively contribute and influence decisions affecting them and their community. As stakeholders continue to work together, they become more familiar with the character of the community and are better able to collaboratively mitigate or resolve issues as they arise. Depending on the scope of authority, resources and expertise, the representatives in stakeholder groups can be very broad. It is important to plan and carefully consider beforehand, which stakeholders to include in the meetings, and to seek out the groups and individuals who will be most affected by the proposed action. Contacting some groups and individuals may be difficult because of their cultural or economic lifestyles, while locating and including other groups will be easier due to their known interest in the decision outcome. For instance, some Title VI concerns may involve zoning or traffic patterns. Collaborating with the governmental units responsible for regulating zoning and traffic patterns, along with the communities that will be affected by any new potential driving routes, may increase the likelihood of achieving more effective solutions to concerns raised in the Title VI context. The earlier all appropriate parties are identified, and brought into the process, including other governmental agencies, the greater the likelihood of reaching effective solutions. E:\FR\FM\04MRN1.SGM 04MRN1 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices E. Equipping Communities With Tools To Help Ensure Effective Public Involvement Often the public does not get involved in decision-making because of their lack of understanding or knowledge of issues affecting their community. Alternatively, the public may not articulate or formulate their concerns in a manner that clearly fits into the decision-making process underlying the issuance of a permit. As a result, the public feels as if their views were not valued or seriously considered when final permit decisions were made. It is important that the public be equipped with necessary tools to allow them to effectively participate in the permit decision-making process. Training should be offered to educate the public on process and basic technical issues that are relevant in making permitting decisions. Training that emphasizes the procedures, options and available information, may encourage community members to assume a more active role when participating in permitting discussions affecting them and their community. Doing so can affect how issues are resolved at the local and state levels. For instance, the benefits of holding educational workshops that clarify public involvement opportunities in the permitting process would create a greater understanding of the permitting process by the public and may increase the level of public involvement; which could lead to a reduction in the number of Title VI complaints filed. An effective training/ information program for communities may include the following: • An information packet with useful information or facts sheets regarding applicable environmental regulations, the public involvement opportunities in the different environmental permitting programs, and the important role community involvement plays in helping to address community concerns early in the permit decision-making process, as opposed to later in a Title VI complaint. • Targeted or one-day training sessions on different subject matters relating to public involvement and permitting. These sessions could include presentations/discussions on the importance of public involvement or a walk through of steps included in the permit review stage, while focusing on public involvement options and opportunities in the permitting process. For example, such a session could consist of discussions on the types of information needed to review a pending permit and points on how to prepare effective technical and legal comments. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 • Specific ‘‘how to’’ sessions for the public that illustrate through role playing how they can effectively participate and influence decisions during the public involvement process. F. Making Assistance/Grants Available to the Public The complex and technical nature of many permitting programs may sometimes impede effective public involvement during the permitting process. To help bridge the gap in capacity between community groups and other stakeholders, several agencies have begun to provide resources in the form of grants and free technical assistance. These types of educational resources serve to help empower communities to better equip them to actively participate in discussions and offer solutions to help address potential Title VI issues in their community. Grants such as Technical Assistance Grants (TAGs) 27 and assistance through programs such as Technical Outreach Services for Communities (TOSC) 28 have been very successful in educating communities on technical and process issues. In addition to grants, local colleges and universities within the communities can also serve as a major resource because of their technical expertise, research capabilities and historical knowledge of issues faced by the affected communities in the past. G. Using Alternative Dispute Resolution Techniques The ability to address potential impacts in a timely and collaborative fashion is critical to resolving problems that may form the basis for a Title VI complaint. The handling of Title VI concerns through the formal administrative process can consume a substantial amount of time and resources for all parties involved. Therefore, EPA strongly encourages 27 A Technical Assistance Grant (TAG) provides money for activities that help communities participate in decision making at eligible Superfund sites. An initial grant up to $50,000 is available to qualified community groups so they can hire independent technical advisors to interpret and help them understand technical information about their site. TAGs may also be used to attend approved training and obtain relevant supplies and equipment. For more information, see https:// www.epa.gov/superfund/tools/tag/index.htm. 28 The Technical Outreach Services for Communities (TOSC) program provides free, independent, non-advocate, technical assistance to communities living near hazardous waste contaminated sites. The goal of the TOSC program is to help communities understand the underlying technical issues associated with contaminated sites in their neighborhoods so that they may be able to substantively participate in the decision-making process regarding issues in their community. For more information on TOSC, see: https:// www.epa.gov/superfund/tools/tosc/index.htm. PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 10631 recipients to consider and use Alternative Dispute Resolution (ADR) 29 techniques where appropriate to prevent and address concerns regarding public involvement in the permitting process. ADR refers to voluntary procedures used to prevent and settle controversial issues by developing and implementing an outcome agreeable to all parties. The goal of ADR is for stakeholders to collaborate and resolve issues acceptable to everyone involved. ADR includes using a wide range of processes to resolve controversial issues. All ADR techniques involve a neutral third party who assists others in designing and conducting a process for reaching possible agreement. The neutral third party should not have a stake in the substantive outcome of the process. Often the use of ADR includes negotiation of issues between parties to reach an acceptable solution. Effective ADR can result in new understandings of and innovative ideas to address issues of concern. It is also particularly helpful in building better relationships that may be important for future interactions between the parties. Typically, all aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement. Examples of ADR approaches that may be particularly relevant for Title VI concerns include: • Facilitation—Facilitation is a process used to help parties constructively discuss complex or potentially controversial issues. Facilitators are often used to guide meetings, design approaches for discussing issues, improve communication between parties, create options, keep the parties focused on the issues at hand, and help avoid and overcome contentious situations. • Mediation—Mediation is a process in which a neutral third party (the mediator) assists the parties in conflict in reaching a mutually satisfying settlement of their differences. Mediators are very useful in guiding the dynamics of a negotiation especially when unassisted discussions are not productive enough to reach a mutual agreement. Good mediators are skillful at assisting parties in constructively expressing emotions, encouraging information exchange, providing new perspectives on the issues at hand, and helping to redefine issues in ways that may lead to mutual gains. Mediators often provide facilitation as well as mediation services. 29 For more information on ADR techniques, contact EPA’s Conflict Prevention and Resolution Center at https://www.epa.gov/adr. E:\FR\FM\04MRN1.SGM 04MRN1 10632 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices • Joint Fact-Finding—Joint factfinding is a process in which parties commit to building a mutual understanding of disputed scientific, technical, legal or other information. A neutral third party assists the group in identifying a mutually agreeable set of questions and selecting one or more substantive experts to provide information concerning the questions. Incorporating ADR early in the process when developing a Public Involvement Plan, may prevent the need to use ADR at a later stage of the process when conflicts may have escalated or the range of available options to address concerns have been reduced. Involving all affected parties in the ADR process can help ensure that the agreements reached provide solutions to reduce or eliminate: (1) discriminatory effects resulting from the issuance of permits; and/or (2) discrimination during the public involvement process associated with the permitting process. III. Suggested Approaches for Reducing Some Common Title VI Complaints Listed below are four common issues often seen as part of Title VI complaints received in the EPA’s Office of Civil Rights. A brief statement is included explaining each allegation, along with suggestions for approaches recipients may take to reduce future complaints of similar nature. A. Language Issues—Recipients have not provided printed information in other languages or sufficient interpreters at meetings for the non-English speaking community members to ensure their full participation in the public involvement process. Using written translation and oral interpreters in communities with nonEnglish speaking members help ensure broader participation from the affected community. In June 2004, EPA published the ‘‘Guidance to Environmental Protection Agency’s Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (LEP)’’.30 According to this guidance, individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be Limited English Proficient, or ‘‘LEP’’ 30 For more information regarding Improving Access to services for Persons with limited English proficiency, see Executive Order No. 13166, 65 FR 50121 (2000), and Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 69 FR 35602 (2004). Recipients, federal agencies and community organizations may also find information at: http.//www.LEP.gov. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 and may be entitled to language assistance with respect to a particular type of service, benefit or encounter. The intent of this guidance is to suggest a balance that ensures meaningful linguistic access to LEP persons to critical services while not imposing undue burden on small businesses, small local governments, or small nonprofit organizations. The guidance suggests four factors recipients may consider to determine if different language assistance measures are sufficient for the different types of programs and activities administered by the recipient. The use of this guidance would be helpful to recipients when determining what level of measures are needed to accommodate the LEP persons in affected communities to ensure maximum participation in the permitting process. The Guidance encourages recipients to develop an implementation plan to address the identified needs of the LEP populations they serve. Additional suggestions on approaches recipients may use to reduce complaints regarding language issues include: • While preparing your Public Involvement Plan, work with the community and consult EPA’s LEP guidance to determine if translation and/or interpretation services will be needed to ensure meaningful participation. Examples of populations who should be considered when planning language services include, but do not limit persons near a plant or facility that is permitted or regulated by an EPA recipient, persons subject to or affected by environmental protection, clean-up, and enforcement actions of an EPA recipient, or persons who seek to enforce or exercise rights under Title VI or environmental statues and regulations. Consider whether the affected community’s ability to participate in the process will be limited by the ability of their community members to speak or understand English. • Plan and budget in advance for translation and interpreter services. If resources are limited, consider the sharing of language assistance materials and services among and between recipients, advocacy groups, Federal grant agencies, and reasonable business organizations. Where appropriate, train and/or test the competency of bilingual staff to act as limited or ad hoc interpreters and translators. • If in-house or local resources are not available, contact nearby colleges or universities for possible assistance for translation of interpreter services and identifying other competent but cost effective resources. PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 • Use multilingual fact sheets, notices, signs, maps, etc. regularly to provide meaningful access by LEP persons to information in as many aspects of the permitting process as appropriate. B. Siting Issues—Siting of facilities in neighborhoods that are hosting similar and often more facilities than nearby communities. Local zoning boards often make landuse decisions based on zoning regulations that were enacted several decades ago. These decisions affect the location of many facilities. Such decisions can affect community members in many ways and result in very contentious and difficult situations for state agencies charged with permitting facilities. While state/local environmental permitting agencies are responsible for minimizing environmental impacts to local communities and liable for ensuring that its practices and policies are implemented in a nondiscriminatory manner, some of those same agencies may not be involved in local zoning decisions. To improve the relationship between communities, and state/local governments, some permitting agencies have begun working with their local land use and planning boards to try to integrate the environmental, social and economic needs of communities early in the process, beginning in the site planning stage.31 Some approaches that may be considered to help address potential siting issues include: • Acknowledging concerns communities have with facilities placed near residential areas and working with those communities to develop outreach strategies to address their concerns; • Working with the appropriate authorities to ensure that data regarding the demographics and location of existing facilities in communities are considered before making local land-use and planning decisions; • Revising or developing state level regulations or policies that list reasonable land-use objectives and practices to guide agencies when making siting decisions; • Revising or adopting ordinances that prohibit new facilities from producing net increases of environmental pollution in areas already hosting a number of facilities; 31 For examples on how some state and local agencies are working together to address community concerns regarding siting, see the National Academy of Public Administration’s July 2003 report entitled ‘‘Addressing Community Concerns: How Environmental Justice Relates to Land Use Planning and Zoning’’ at http.// www.napawash.org. E:\FR\FM\04MRN1.SGM 04MRN1 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices • Evaluating zoning in heavily populated areas to determine whether current land use practices differ from those employed when area was previously zoned; • Having state environmental agencies work with local land-use and planning boards to help them understand the effects of human health and the environment on communities from previous siting decisions made, and begin developing strategies to reduce future impacts on those affected communities; • Having state environmental agencies provide outreach and technical assistance (through training workshops) to local governments on how to engage communities in siting decisions made; and • Sharing environmental data with local governments to help them project and evaluate future impacts of proposed land use plans on existing communities before decisions are finalized. C. Insufficient Public Notices—Lack of meaningful opportunities for communities to participate in the public involvement process because notices are not publicized broadly enough to reach all communities. Community input plays an integral role in any successful permitting program. Public notices serve as a means to inform the public and ensure community input. Inadequate public notice programs can result in a lack of trust between communities and state/ local agencies, permitting delays, and the filing of Title VI complaints. Suggested approaches for reducing future complaints regarding insufficient public notices include: • Seeking community input to find out what pathways would be most effective in getting information out to particular communities; • Choosing outlets that are most widely used by members of the affected community (e.g., community-based church bulletins, culturally-based community newspapers, grocery stores, libraries, foreign-language radio for reaching non-English-speaking communities, the internet and other places frequently visited by members of the affected community); • Notifying communities at least once a week (e.g., 10 to 14 days before, one week before and one day before the event is held via radio, phone, e-mail, newspaper, etc.) to ensure the greatest level of participation; • Announcing times, dates and locations of events clearly; • Providing sufficient information on the purpose and scope of the meeting by listing the types of information to be discussed, along with the type of VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 feedback/input the agency is seeking from the public; and • Providing names, addresses (including e-mail addresses), and telephone numbers of agency contact persons. D. Information Repository—Lack of an information repository or insufficient notice regarding the location and/or hours for reviewing permit information in the repository, or selection of an inconvenient location for the affected community. Information repositories provide public access to accurate, detailed, and current data about facilities in their community.32 Although states have the authority to require that facilities establish information repositories, many states have not included it as a mandatory activity in their regulations. However, the existence of an information repository in a community shows a responsiveness and commitment to the community’s needs for comprehensive information regarding a facility. Information repositories greatly improve public participation by making important information readily accessible to communities interested in participating in the permitting process or merely wanting to keep abreast of activities at facilities in their neighborhoods. Suggestions on approaches recipients may use to reduce complaints regarding information repositories include: • Establishing, or requiring that facilities establish information repositories especially in cases where a significant amount of public concern is expected or has surfaced, or when the community has unique information needs; • Choosing locations for information repositories in places most convenient and accessible to the public (e.g. local public libraries, community centers, churches, etc.); 32Federal, state and local government officials may access risk management plans (RMP) (describing potential accidental releases) and Offsite Consequence Analysis (OCA) information for official use by contacting their Implementing Agency or EPA’s contractor-operated RMP Reporting Center at 301–429–5018 (e-mail: userrmp.usersupport@csc.com). OCA information is available to the public at Federal reading rooms located throughout the United States and its territories. EPA also makes available RMPs without the OCA data elements that might significantly assist someone in targeting a chemical facility. State Emergency Response Commissions and Local Emergency Planning Committees may also provide the public with read-only access to OCA information for local facilities. Private individuals can find contact information for a local committee or get a list of facilities that have opted to make their OCA information available to the public without restriction at https://www.epa.gov/ceppo/ lepclist.htm or by calling the EPA hotline at (800) 424–9346. PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 10633 • Establishing an online information repository for public access; • Ensuring that the existence of the information repository is well publicized; • Ensuring that repositories are placed in well lit and secure locations; • Ensuring that the hours for reviewing information in the repository are convenient to the public; • If a permitting activity is controversial or is expected to raise a lot of community interest, suggesting that the facility consider providing several copies of key documents in the repository so many people can review the information at the same time; and • Ensuring that the repository is updated as new information is generated regarding the facility. IV. Evaluating Approaches for Meaningful Public Involvement After implementing any of the above public involvement approaches, it is important to periodically evaluate the approaches from the beginning stages of the process to identify and address areas in need of improvement. The evaluation process should be a fundamental part of any public involvement process. Evaluating the public involvement program on an ongoing basis gives the recipient a sense of where things are and an indication of how and where things are going. Evaluating the program can also help the recipient determine whether set goals were met, make sure that the process stays on track and allow for changes as the process moves forward. Tools used for evaluating public involvement programs may include: • Informal Feedback—Informal feedback is unstructured communication on a routine basis between the recipient agency, the community, and facilities to give everyone a chance to express their feelings on how the process went, is going, and how it can be improved. • Questionnaires—Questionnaires are very useful and usually consist of short to-the-point questions to determine whether the participants felt the activity was useful. Questionnaires are often used at the end of an event such as a public meeting. • Interviews—Interviews are usually done under a more formal setting when feedback is needed from a larger group. Feedback obtained from interviews may be used to help construct additional and more defined tools (e.g., community action plans). • Debriefs—Debriefs are very useful methods for receiving internal feedback from staff members on a process. Debriefs are most successful when done E:\FR\FM\04MRN1.SGM 04MRN1 10634 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices shortly after the process concludes to ensure that all major issues are addressed, and suggestions for improvements can be implemented into future activities. • Surveys—Surveys are very useful to obtain data or statistical information. V. Due Weight Many recipients, have asked OCR to provide ‘‘incentives’’ to help them develop proactive Title VI related approaches. Some recipients have asked OCR to recognize, and to the maximum extent possible, rely on the results of any such approaches in assessing complaints filed with EPA. While EPA encourages efforts to develop proactive Title VI related approaches, under the Civil Rights Act of 1964, the Federal government is charged with assuring compliance with Title VI. Consequently, OCR cannot completely defer to a recipient’s own assessment of whether Title VI or EPA’s Title VI implementing regulations have been violated. In addition, OCR cannot rely entirely on an assertion that a Title VI approach has been followed or delegate its responsibility to enforce Title VI to its recipients.33 Thus, with regard to the processing of Title VI complaints, EPA retains the ability to: • Decide whether to investigate the complaint using the recipient’s analysis as supplemental information; • Investigate a complaint or initiate a compliance review notwithstanding any informal resolution reached by the recipient and complainant; and • Initiate its own enforcement actions and compliance reviews as a general matter. Nevertheless, EPA believes that it can, under certain circumstances, recognize the results of information submitted and give it appropriate due weight. For example, if during the course of an investigation, results of adopted approaches are submitted as evidence that EPA’s Title VI regulations have not been violated, EPA will review the approach and results to determine how much weight to give the submission in its investigation.34 33 See 28 CFR 50.3(b) (‘‘Primary responsibility for prompt and vigorous enforcement of Title VI rests with the head of each department and agency administering programs of Federal financial assistance.’’); Memorandum from Bill Lann Lee, Acting Assistant Attorney General, U.S. Department of Justice, to Executive Agency Civil Rights Directors (Jan. 28, 1999) (titled Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs) (‘‘It is important to remember that Federal agencies are responsible for enforcing the nondiscrimination requirements that apply to recipients of assistance under their program.’’). 34 In addition to the analyses and procedures described in this section, OCR also intends to VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 Some recipients may develop procedures for their permitting programs that meet certain criteria designed to ensure a nondiscriminatory public involvement process. The weight given any evidence related to the public involvement process and the extent to which OCR may rely on it in its decision will likely vary depending upon: • Whether the criteria that formed the basis for the program were sufficient to ensure a nondiscriminatory process; • If the overall permitting process met those criteria; and • The relevance of the recipients’ public involvement programs to the allegation(s) and the thoroughness of documentation of how the recipient addresses the allegations. The value that OCR expects to give public involvement approaches will likely range from no weight for procedures that have significant deficiencies with respect to the considerations listed above, to significant weight for procedures depending on the outcome of OCR’s review in light of the considerations listed above. Some weight would likely be given to procedures that fall between these two extremes, such as efforts which show that the recipient attempted to resolve specific allegations before the complaint was filed with EPA. However, if OCR finds that a recipient’s public involvement process warrants the greatest weight, then OCR would generally rely upon the recipient’s input in subsequent decisions. Consequently, OCR may dismiss future allegations related to issues covered by that process. However, OCR may conduct an investigation in cases where there is an allegation or information revealing that circumstances were substantially different and showed that the public involvement process used was inadequate or improperly implemented. VI. Conclusion This guidance suggests approaches that recipients of EPA financial assistance may want to use to ensure nondiscrimination and to help reduce the filing of complaints alleging public involvement violations of Title VI of the Civil Rights Act of 1964 and EPA’s Title VI implementing regulations. This guidance emphasizes community involvement early and often in the permitting process. This guidance also focuses on four common allegations in Title VI complaints and offers consider other available and relevant evidence from both the recipient and complainant, such as meeting minutes, correspondence, empirical data, interviews, etc., as appropriate. PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 suggestions on how to reduce the likelihood of future complaints of similar nature. EPA believes that the approaches suggested in this guidance will help improve relations between EPA recipients and communities, enable communities to better participate in the public involvement portion of the permitting process, and give direction to EPA recipients and local decisionmakers on possible ways to reduce the filing of future complaints related to public involvement practices alleging violations of Title VI and EPA’s Title VI implementing regulations. Dated: February 10, 2005. Karen D. Higginbotham, Director, Office of Civil Rights. VII. Additional Resources EPA, 2004, Guidance to Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficiency Persons, (available at: https://www.epa.gov/ civilrights/lepaccess.htm). EPA, 2003, Public Involvement Policy of the U.S. Environmental Protection Agency, Office of Policy, Economics and Innovation, Washington, DC, EPA 223-B– 03–002 (available at: https://www.epa.gov/ publicinvolvement/policy2003/ finalpolicy.pdf). EPA, 2003, Moving Towards Collaborative Problem-Solving: Business and Industry Perspectives and Practices on Environmental Justice, Office of Environmental Justice, Washington, DC, EPA/300–R–03–003 (available at: https:// www.epa.gov/compliance/resources/ publications/ej/ ej_annual_project_reports.html). EPA, 2003, 2001–2002 Biennial Report: Constructive Engagement and Collaborative Problem-Solving, Office of Environmental Justice, Washington, DC, EPA 300–R–03–001 (available at: https:// www.epa.gov/compliance/resources/ publications/ej/ ej_annual_project_reports.html). EPA, 2002, Superfund Community Involvement Toolkit, Office of Solid Waste and Emergency Response, Washington, DC, EPA 540–K–01–004 (available at: https:// www.epa.gov/superfund/tools/index.htm). EPA, 2002, Enhancing Facility-Community Relations, Office of Solid Waste, Washington, DC, EPA/530/F–02–037 (available at: https://www.epa.gov/ epaoswer/hazwaste/tsds/site/f02037.pdf). EPA, 2001, Community Involvement Policy Directive 9230.0–99: Early and Meaningful Community Involvement, Office of Solid Waste and Community Response, Washington, DC, (available at: https:// www.epa.gov/superfund/resources/ early.pdf). EPA, 2000, Social Aspects of Siting RCRA Hazardous Waste Facilities, Office of Solid Waste and Emergency Response, Washington, DC, EPA530–K–00–005 (available at: https://www.epa.gov/ epaoswer/hazwaste/tsds/site/k00005.pdf). E:\FR\FM\04MRN1.SGM 04MRN1 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices EPA, 2000, Engaging the American People: A Review of EPA’s Public Participation Policy and Regulations with Recommendations for Action, Office of Policy, Economics, and Innovation, Washington, DC, EPA 240–R–00–005 (available at: https://www.epa.gov/ stakeholders/pdf/eap_report.pdf). EPA, 2000, Public Involvement in Environmental Permits: A Reference Guide, Office of Solid Waste and Emergency Response, Washington, DC, EPA–500–R–00–007 (available at: https:// www.epa.gov/permits/publicguide.htm). EPA, 1999, Report of the Title VI Implementation Advisory Committee: Next Steps for EPA, State and Local Environmental Justice Programs, Office of Environmental Cooperative Management, Washington, DC 20460 (available at: http:/ /www.epa.gov/ocem/nacept/titleVI/ titlerpt.html). EPA, 1999, Brownfields Title VI Case Studies: Summary Report, Office of Solid Waste and Emergency Response, Washington, DC, EPA 500–R–99–003 (available at: https://www.epa.gov/oswer/ej/ ejndx.htm#titlevi). EPA, 1996, RCRA Expanded Public Participation Rule, Office of Solid Waste, Washington, DC, 40 CFR Parts 9,124 & 270 (available at: https://www.epa.gov/ epaoswer/hazwaste/permit/pubpart.htm). EPA, 1996, RCRA Public Participation Manual, Office of Solid Waste, Washington, DC (available at: https:// www.epa.gov/epaoswer/hazwaste/permit/ pubpart/manual.htm). EPA, 1995, The Decision Maker’s Guide to Solid Waste Management, Volume II, Office of Solid Waste and Emergency Response, Washington, DC, EPA530–R–95– 023 (available at: https://www.epa.gov/ epaoswer/non-hw/muncpl/dmg2.htm). EPA, 1990, Community Involvement Policy Directive 9230.0–08: Planning for Sufficient Community Relations, Office of Solid Waste and Community Response, Washington, DC (available at: https:// www.epa.gov/superfund/tools/cag/ directives/planning.pdf). EPA, 1990, Sites for Our Solid Waste: A Guidebook for Effective Public Involvement, Office of Solid Waste, Washington, DC, available at: https:// www.epa.gov/epaoswer/non-hw/muncpl/ sites/toc.pdf). DOE, 1999, How to Design a Public Participation Program, Office of Intergovernmental and Public Accountability (EM–22) Washington DC, (available at: https://web.em.doe.gov/ ftplink/public/doeguide.pdf). IAP2, 2003, Planning for Effective Public Participation, International Association for Public Participation, The Perspectives Group, Alexandria, Va., (Web site: https:// www.theperspectivesgroup.com). NAPA, 2002, Models for Change: Efforts by Four States to Address Environmental Justice, National Academy of Public Administration, Washington, DC (available at: http:/www.napawash.org/ publications.html). ELI, 2001, Opportunities for Advancing Environmental Justice: An Analysis of U.S. VerDate jul<14>2003 19:07 Mar 03, 2005 Jkt 205001 EPA Statutory Authorities, Environmental Law Institute, Washington, DC, ISBN No. 1–58576–031–5. ELI Project No. 981623 (available at: https://www.eli.org). State and Environmental Dispute Resolution Programs (available at: https:// www.policyconsensus.org). [FR Doc. 05–3448 Filed 3–3–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [FRL–7880–3] Proposed Administrative Settlement Under the Comprehensive Environmental Response, Compensation, and Liability Act Environmental Protection Agency. ACTION: Request for public comment. AGENCY: SUMMARY: The Environmental Protection Agency is proposing to enter into an ‘‘Administrative Order On Consent For Past Cost Reimbursement/Covenant Not to Sue and Removal’’ pursuant to Sections 106(a), 107 and 122 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (‘‘CERCLA’’), 42 U.S.C. 9606(a), 9607 and 9622. This proposed administrative settlement is intended to: (1) Resolve the liability of LC Associates, LP. (‘‘Settling Party’’) under CERCLA for EPA’s past response costs incurred at the Andela and River Bend Superfund Sites, Warwick Township, Bucks County, Pennsylvania (‘‘the Sites’’); and (2) further directs Settling Party to cleanup any future discovered PCB contamination on the Sites, if necessary, pursuant to the selfeffectuating ‘‘Removal Order’’ component of this proposed settlement. DATES: Comments must be provided within thirty (30) days from publication. ADDRESSES: Comments should be addressed to Lydia Guy, Regional Hearing Clerk, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103– 2029, and should refer to the Andela and River Bend Superfund Sites, Warwick Township, Bucks County, Pennsylvania. FOR FURTHER INFORMATION CONTACT: Benjamin M. Cohan (3RC41), 215/814– 2618, U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, Pennsylvania 19103–2029. SUPPLEMENTARY INFORMATION: Notice of administrative settlement: In accordance with Section 122(i)(1) of CERCLA, 42 U.S.C. 9622(i)(1), notice is hereby given of a proposed administrative settlement PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 10635 concerning the Andela and River Bend Superfund Sites, Warwick Township, Bucks County, Pennsylvania. The administrative settlement is subject to review by the public pursuant to this Notice. The proposed settlement has been reviewed and approved by the United States Department of Justice in accordance with Section 122(h) of CERCLA, 42 U.S.C. 9622(h). The Settling Party has agreed to pay $135,000.00 to the Hazardous Substances Superfund Fund subject to the contingency that EPA may elect not to complete the settlement if comments received from the public during this comment period disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate. This amount to be paid by the Settling Party was based upon EPA’s determination of the fair share of liability of the Settling Party relating to the Sites. Monies collected from the Settling Party will be remitted to EPA’s Hazardous Substances Superfund Fund for use in future cleanups which may be undertaken under CERCLA. EPA is entering into this agreement under the authority of Sections 106(a), 107 and 122 of CERCLA, 42 U.S.C. 9606(a), 9607 and 9622. Specifically, Section 122(h) of CERCLA authorizes cost recovery settlements with potentially responsible parties to allow them to resolve their liabilities at Superfund Sites without incurring substantial transaction costs. Under this authority, EPA proposes to settle with Settling Party in connection with the Sites, based upon a determination that Settling Party is responsible as an ‘‘owner or operator of a vessel or a facility’’ (the Andela and River Bend Sites) within the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C. 9607(a)(1) . As part of this administrative settlement, and for so long as Settling Party is in compliance with the terms of the agreement, including but not limited to cleanup of future discovered PCB contamination as specified in Section 7 of the settlement agreement, EPA will provide to the Settling Party a covenant not to sue or take administrative action against the Settling Party for reimbursement of past response costs pursuant to Section 107 of CERCLA, 42 U.S.C. 9607, with regard to the Sites. The Environmental Protection Agency will receive written comments relating to this settlement for thirty (30) days from the date of publication of this Notice. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or E:\FR\FM\04MRN1.SGM 04MRN1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

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


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7875-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Agency guidance.

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

[[Page 10626]]


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

ADDRESSES: Written comments on the guidance document should be mailed 
to: Title VI Recipient Guidance, U.S. Environmental Protection Agency, 
Office of Civil Rights (1201A), 1200 Pennsylvania Avenue NW., 
Washington, DC 20460, or submitted to the following e-mail address: 
civilrights@epa.gov. Please include your name, address and optionally, 
your affiliation.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

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

A. Preamble

    Today's Federal Register document contains the guidance document 
entitled, the Draft Final Title VI Public Involvement Guidance for EPA 
Assistance Recipients Administering Environmental Permitting Programs 
(Draft Final Recipient Guidance). It offers recipients \1\ of U.S. 
Environmental Protection Agency (EPA) assistance\2\ that implement 
environmental permitting programs suggestions on public involvement 
approaches they may use to help enhance their current permitting 
programs to better address potential issues related to Title VI of the 
Civil Rights Act of 1964, as amended, (Title VI) and EPA's Title VI 
implementing regulations.\3\ The Draft Final Recipient Guidance 
addresses and summarizes major public involvement considerations 
suggested in comments EPA's Office of Civil Rights (OCR) received on 
the Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Draft Recipient Guidance), comments 
and suggestions stakeholders made at public participation sessions OCR 
held in various states in 2003-2004, and other public involvement-
related resources. This Draft Final Recipient Guidance will replace the 
Draft Recipient Guidance which was issued in June 2000.\4\ Much of the 
information in the Draft Final Recipient Guidance is also based on 
EPA's commitment to early and meaningful public involvement throughout 
the entire permitting process.
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    \1\ `Recipient' is defined as ``any state or its political 
subdivision, any instrumentality of a state or its political 
subdivision, any public or private agency, institution, 
organization, other entity, or any person to which Federal financial 
assistance is extended directly or through another recipient, 
including any successor, assignee, or transferee of a recipient, but 
excluding the ultimate beneficiary of the assistance.'' 40 CFR 7.25.
    \2\ EPA assistance is defined as ``any grant or cooperative 
agreement, loan, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by 
which EPA provides or otherwise makes available assistance in the 
form of: Funds; Services of personnel; or Real or personal property 
or any interest in or use of such property, including Transfers or 
leases of such property for less than fair market value or for 
reduced consideration; and Proceeds for a subsequent transfer or 
lease of such property if EPA's share of its fair market value is 
not returned to EPA.''
    \3\ Title VI of the Civil rights Act of 1964, Pub. L. 88-352, 78 
Stat. 241 (codified as amended at 42 U.S.C. 2000d to 2000-7); 49 CFR 
Part 7.
    \4\ 65 Fed. Reg. 39655 (2000).
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    Entities applying for EPA financial assistance submit assurances 
with their applications stating that they will comply with the 
requirements of EPA's regulations implementing Title VI with respect to 
their programs or activities.\5\ When the recipient receives EPA 
assistance, they accept the obligation to comply with EPA's Title VI 
implementing regulations. Persons, or their authorized representatives, 
who believe Federal financial assistance recipients are not 
administering their programs in a nondiscriminatory manner may file 
administrative complaints with EPA or other relevant Federal agencies. 
The complaint must be filed within 180 calendar days of a particular 
action taken by the recipient (such as the issuance of an environmental 
permit) that allegedly has a discriminatory purpose or effect.\6\
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    \5\ 40 CFR 7.80, EPA Form 4700-4 and Standard Form 424.
    \6\ The filing or acceptance for investigation of a Title VI 
complaint does not suspend an issued permit. Title VI complaints 
concern the programs and activities being implemented by Federal 
financial assistance recipients, and any EPA investigation of such a 
complaint primarily concerns the actions of recipients rather than 
permittees. While a particular permitting decision may act as a 
trigger for a complaint, allegations may involve a wider range of 
issues or alleged adverse disparate impacts within the legal 
authority of recipients.
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    The Draft Recipient Guidance was published concurrently with the 
Draft Revised Guidance for Investigating Title VI Administrative 
Complaints Challenging Permits (Draft Revised Investigation Guidance) 
\7\ in June 2000. Prior to issuing the Draft Recipient Guidance, EPA 
considered public input, the work of the Title VI Implementation 
Advisory Committee of EPA's National Advisory Council for Environmental 
Policy and Technology (NACEPT),\8\ the work of the Environmental 
Council of States (ECOS),\9\ particularly its October 9, 1998 draft 
Proposed Elements of State Environmental Justice Programs, and input 
from available state environmental justice programs. The Draft 
Recipient Guidance discussed approaches to complaints alleging 
discrimination during the public participation portion of the 
permitting process, as well as complaints alleging discriminatory human 
health effects, environmental effects and adverse disparate impacts 
resulting from the issuance of permits. The Draft Recipient Guidance 
also discussed how these approaches could be used to address concerns 
before the filing of complaints. The Draft Revised Investigation 
Guidance discussed how OCR would process complaints alleging adverse 
disparate health impacts from the issuance of environmental permits. 
Both documents discussed issues regarding disparate and adverse 
impacts. To avoid redundancy, OCR decided that the Final Title VI 
Public Involvement Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Final Recipient Guidance) would only 
focus on approaches recipients can use to enhance the public 
involvement portion of their permitting programs. Discussions on 
disparate and other adverse impacts will be included in the Revised 
Investigative Guidance which may be finalized at a later date. Today, 
EPA is issuing the Draft Final Recipient Guidance.
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    \7\ 65 FR 39650 (2000).
    \8\ NACEPT consists of a representative cross-section of EPA's 
partners and principle constituents who provide advice and 
recommendations to the Administrator of EPA on a broad range of 
environmental policy, technology, and management issues regarding 
new strategies that the Agency is developing. The Council is a 
proactive, strategic panel of experts that identifies emerging 
challenges facing EPA and responds to specific charges requested by 
the Administrator and the program office managers.
    \9\ The mission of ECOS involves championing the role of the 
States in environmental protection and articulating state positions 
to Congress, federal agencies and the public on environmental 
issues. This mission is often advanced by writing letters, making 
presentations, and working in coalition with other groups to 
advocate on behalf of the states on environmental matters.
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B. Draft Final Title VI Public Involvement Guidance for EPA Assistance 
Recipients Administering Environmental Permitting Programs

I. Introduction
    A. Purpose of this Guidance

[[Page 10627]]

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

I. Introduction

A. Purpose of this Guidance

    This guidance is written for recipients \10\ of U.S. Environmental 
Protection Agency (EPA) assistance \11\ that administer environmental 
permitting programs. It offers suggestions on approaches and ways to 
address situations that might reduce the likelihood of the filing of 
complaints alleging public involvement violations of Title VI of the 
Civil Rights Act of 1964, as amended (Title VI) \12\ and EPA's Title VI 
implementing regulations.\13\ The approaches discussed in this guidance 
may be used to create new public involvement activities or to enhance 
existing public involvement activities that address allegations of 
discriminatory public participation practices during the permitting 
process.
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    \10\ Any state or its political subdivision, any instrumentality 
of a state or its political subdivision, any public or private 
agency, institution, organization, entity, or person to which 
Federal financial assistance is extended directly or through another 
recipient, including any successor, assignee, or transferee of a 
recipient, but excluding the ultimate beneficiary of the assistance. 
40 CFR 7.25.
    \11\ EPA assistance is defined as ``any grant or cooperative 
agreement, loan, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by 
which EPA provides or otherwise makes available assistance in the 
form of: Funds; Services of personnel; or Real or personal property 
or any interest in or use of such property, including Transfers or 
leases of such property for less than fair market value or for 
reduced consideration; and Proceeds for a subsequent transfer or 
lease of such property if EPA's share of its fair market value is 
not returned to EPA.''
    \12\ Pub. L. 88-352, 78 Stat. 241 (codified as amended at 42 
U.S.C. 2000d to 2000d-7).
    \13\ 40 CFR part 7, Nondiscrimination in Programs Receiving 
Federal Assistance from the Environmental Protection Agency.
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    This is a guidance document, not a regulation. This document offers 
suggestions to recipients about enhancing public involvement processes 
in environmental permitting, and addressing potential Title VI issues 
before complaints arise. Recipients remain free to use approaches other 
than the ones suggested here. In addition, EPA recipients may consider 
other approaches and ideas, either on their own or at the suggestion of 
interested parties. Interested parties are free to raise questions and 
objections regarding this guidance and the appropriateness of using 
these recommendations in a particular situation, and EPA will consider 
whether the recommendations are appropriate in that situation. This 
document does not change or act as a substitute for any legal 
requirements. Rather, the sources of authority and requirements for 
Title VI programs are the relevant statutory and regulatory provisions.

B. Title VI of the Civil Rights Act of 1964

    Title VI of the Civil Rights Act of 1964 prohibits discrimination 
based on race, color, or national origin under any program or activity 
of a Federal financial assistance recipient. Title VI itself prohibits 
intentional discrimination. However Congress directed that its policy 
against discrimination by recipients of Federal assistance be 
implemented, in part, through administrative rulemaking. Since 1964, 
regulations promulgated by Federal agencies implementing Title VI have 
uniformly prohibited conduct or actions by a recipient which have the 
effect of discriminating on the basis of race, color or national 
origin. Title VI ``delegated to the agencies in the first instance the 
complex determination of what sorts of disparate impacts upon 
minorities constituted sufficiently significant social problems, and 
were readily enough remediable, to warrant altering the practices of 
the Federal grantees that had produced those impacts.'' \14\
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    \14\ Alexander v. Choate, 469 U.S. 287, 293-94 (1985).
---------------------------------------------------------------------------

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

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

[[Page 10628]]

(Title VI Advisory Committee) under the National Advisory Council for 
Environmental Policy and Technology in March 1998. The Title VI 
Advisory Committee was comprised of representatives from communities, 
environmental justice groups, state and local governments, industry, 
and other interested stakeholders. EPA asked the committee to review 
and evaluate existing techniques that EPA funding recipients could use 
to administer environmental permitting programs in compliance with 
Title VI. Techniques evaluated could include tools for assessing 
potential Title VI concerns and mitigating impacts where they occur.
    Core components of the Recipient Guidance are based on several 
threshold principles which members of the Title VI Advisory Committee 
included in their April 1999, Report of the Title VI Implementation 
Advisory Committee: Next Steps for EPA, State, and Local Environmental 
Justice Programs.\20\ As a result, EPA established guiding principles 
for implementing Title VI and developing the draft guide. In 
implementing Title VI and developing this final guidance, EPA is 
reaffirming its commitment to the following principles:
---------------------------------------------------------------------------

    \20\ For a copy of this report, see: http: www.epa.gov/
civilrights/t6faca.htm.
---------------------------------------------------------------------------

     All persons regardless of race, color or national origin 
are entitled to a safe and healthful environment.
     Strong civil rights enforcement is essential in preventing 
Title VI violations and complaints.
     Enforcement of civil rights laws and environmental laws 
are complementary, and can be achieved in a manner consistent with 
sustainable economic development.
     Early, preventive steps, whether under the auspices of 
state and local governments, in the context of voluntary initiatives by 
industry, or at the initiative of community advocates, are strongly 
encouraged to prevent potential Title VI violations and complaints.
     Meaningful outreach and public participation early and 
throughout the decision-making process is critical to identify and 
resolve issues, and to also assure proper consideration of public 
concerns.
     Intergovernmental and innovative problem-solving provide 
the most comprehensive response to many concerns raised in Title VI 
complaints.

D. The Interface Between Public Involvement and Title VI

    Because public involvement plays a critical role in understanding 
and assessing how issues affect a community, meaningful public 
involvement should be an integral part of the permit decision-making 
process. Meaningful public involvement consists of informing, 
consulting, and working with communities at various stages of the 
permitting process to address their concerns. Appropriate collaboration 
during the permitting process can foster trust, and help establish 
credible, solid relationships between permitting agencies and 
communities. Such collaboration may serve to ensure that concerns are 
identified and addressed in a timely manner to possibly reduce the 
filing of some Title VI complaints.
    The fundamental premise of EPA's 2003 Public Involvement Policy is 
that ``EPA should continue to provide for meaningful public involvement 
in all its programs, and consistently look for new ways to enhance 
public input. EPA staff and managers should seek input reflecting all 
points of view and should carefully consider this input when making 
decisions. EPA also should work to ensure that decision-making 
processes are open and accessible to all interested groups, including 
those with limited financial and technical resources, English 
proficiency, and/or past experience participating in environmental 
decision-making. Such openness to the public increases EPA's 
credibility, improves the Agency's decision-making processes, and can 
impact final decision outcomes. At the same time, EPA should not accept 
any recommendation or proposal without careful, critical examination.'' 
\21\
---------------------------------------------------------------------------

    \21\ For a copy of this report, see: https://www.epa,gov/
publicinvolvement/ policy2003/final policy, pdf.
---------------------------------------------------------------------------

    In 1999 the Office of Solid Waste conducted a series of seven case 
studies to determine if the redevelopment of EPA Brownfields \22\ 
Pilots had been impeded by Title VI complaints, and to address concerns 
of whether these complaints may deter businesses from redeveloping 
Brownfields sites. The study, ``Brownfields Title VI Case Studies,'' 
\23\ indicated that community residents are not likely to file Title VI 
complaints when the redevelopment process provides for early and 
meaningful community involvement, and creates a benefit for the local 
community. In several of the case study Pilots, communities were 
involved in identifying and helping to resolve issues during the early 
stages of the process which helped build trust between stakeholders and 
a sense of ownership for community members. According to those 
interviewed, community outreach and involvement served to prevent the 
filing of Title VI complaints and other opposition to development 
projects.
---------------------------------------------------------------------------

    \22\ EPA defines Brownfields as real property that is expanded, 
redeveloped, or reused which may contain or potentially contain a 
hazardous substance, pollutant or contaminant. Cleaning and 
reinvesting these properties take development pressures off of 
undeveloped, openland which help to improve and protect the 
environment. For more information on Brownfields Cleanup and 
Redevelopment, see: https://www.epa.govswerosps/bf/
    \23\ For a copy of this report, see: https://www.epa.gov/oswer/
ej/ejndx.htm#titlevi or call the hotline at 1-800-424-9346.
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    The interface between public involvement and Title VI often arises 
when racial or ethnic communities believe that they've been 
discriminated against as a result of a decision made in the permitting 
process. OCR believes that many of these assertions of discrimination 
arise from a failure to adequately involve the public in the pre-
decisional process prior to permit issuance. In situations such as 
this, a finding of discrimination in the substantive outcome of a 
process, such as discriminatory human health or environmental effects 
is not necessary. Violations of Title VI or EPA's Title VI regulations 
can be based solely on discriminatory actions in the procedural aspects 
of the permitting process. Many Title VI complaints center around 
allegations of discrimination that may have been prevented, mitigated, 
or resolved if certain public involvement practices had been 
implemented by recipient agencies. OCR believes that if recipients 
focus on early, inclusive and meaningful public involvement throughout 
the entire permitting process, the likelihood of complaints alleging 
discrimination in the public involvement process, will be reduced.

E. Scope and Flexibility

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

[[Page 10629]]

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

II. Approaches to Meaningful Public Involvement

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

A. Developing and Implementing an Effective Public Involvement Plan

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

B. Training Staff

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

[[Page 10630]]

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

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

D. Encouraging Stakeholder and Intergovernmental Involvement

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

[[Page 10631]]

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

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

F. Making Assistance/Grants Available to the Public

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

    The ability to address potential impacts in a timely and 
collaborative fashion is critical to resolving problems that may form 
the basis for a Title VI complaint. The handling of Title VI concerns 
through the formal administrative process can consume a substantial 
amount of time and resources for all parties involved. Therefore, EPA 
strongly encourages recipients to consider and use Alternative Dispute 
Resolution (ADR) \29\ techniques where appropriate to prevent and 
address concerns regarding public involvement in the permitting 
process. ADR refers to voluntary procedures used to prevent and settle 
controversial issues by developing and implementing an outcome 
agreeable to all parties. The goal of ADR is for stakeholders to 
collaborate and resolve issues acceptable to everyone involved.
---------------------------------------------------------------------------

    \29\ For more information on ADR techniques, contact EPA's 
Conflict Prevention and Resolution Center at https://www.epa.gov/adr.
---------------------------------------------------------------------------

    ADR includes using a wide range of processes to resolve 
controversial issues. All ADR techniques involve a neutral third party 
who assists others in designing and conducting a process for reaching 
possible agreement. The neutral third party should not have a stake in 
the substantive outcome of the process. Often the use of ADR includes 
negotiation of issues between parties to reach an acceptable solution. 
Effective ADR can result in new understandings of and innovative ideas 
to address issues of concern. It is also particularly helpful in 
building better relationships that may be important for future 
interactions between the parties. Typically, all aspects of ADR are 
voluntary, including the decision to participate, the type of process 
used, and the content of any final agreement. Examples of ADR 
approaches that may be particularly relevant for Title VI concerns 
include:
     Facilitation--Facilitation is a process used to help 
parties constructively discuss complex or potentially controversial 
issues. Facilitators are often used to guide meetings, design 
approaches for discussing issues, improve communication between 
parties, create options, keep the parties focused on the issues at 
hand, and help avoid and overcome contentious situations.
     Mediation--Mediation is a process in which a neutral third 
party (the mediator) assists the parties in conflict in reaching a 
mutually satisfying settlement of their differences. Mediators are very 
useful in guiding the dynamics of a negotiation especially when 
unassisted discussions are not productive enough to reach a mutual 
agreement. Good mediators are skillful at assisting parties in 
constructively expressing emotions, encouraging information exchange, 
providing new perspectives on the issues at hand, and helping to 
redefine issues in ways that may lead to mutual gains. Mediators often 
provide facilitation as well as mediation services.

[[Page 10632]]

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

III. Suggested Approaches for Reducing Some Common Title VI Complaints

    Listed below are four common issues often seen as part of Title VI 
complaints received in the EPA's Office of Civil Rights. A brief 
statement is included explaining each allegation, along with 
suggestions for approaches recipients may take to reduce future 
complaints of similar nature.
    A. Language Issues--Recipients have not provided printed 
information in other languages or sufficient interpreters at meetings 
for the non-English speaking community members to ensure their full 
participation in the public involvement process.
    Using written translation and oral interpreters in communities with 
non-English speaking members help ensure broader participation from the 
affected community. In June 2004, EPA published the ``Guidance to 
Environmental Protection Agency's Financial Assistance Recipients 
Regarding Title VI Prohibition Against National Origin Discrimination 
Affecting Limited English Proficient Persons (LEP)''.\30\ According to 
this guidance, individuals who do not speak English as their primary 
language and who have a limited ability to read, write, speak, or 
understand English can be Limited English Proficient, or ``LEP'' and 
may be entitled to language assistance with respect to a particular 
type of service, benefit or encounter. The intent of this guidance is 
to suggest a balance that ensures meaningful linguistic access to LEP 
persons to critical services while not imposing undue burden on small 
businesses, small local governments, or small nonprofit organizations. 
The guidance suggests four factors recipients may consider to determine 
if different language assistance measures are sufficient for the 
different types of programs and activities administered by the 
recipient. The use of this guidance would be helpful to recipients when 
determining what level of measures are needed to accommodate the LEP 
persons in affected communities to ensure maximum participation in the 
permitting process. The Guidance encourages recipients to develop an 
implementation plan to address the identified needs of the LEP 
populations they serve.
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    \30\ For more information regarding Improving Access to services 
for Persons with limited English proficiency, see Executive Order 
No. 13166, 65 FR 50121 (2000), and Guidance to Environmental 
Protection Agency Financial Assistance Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons, 69 FR 35602 (2004). Recipients, federal 
agencies and community organizations may also find information at: 
http.//www.LEP.gov.
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    Additional suggestions on approaches recipients may use to reduce 
complaints regarding language issues include:
     While preparing your Public Involvement Plan, work with 
the community and consult EPA's LEP guidance to determine if 
translation and/or interpretation services will be needed to ensure 
meaningful participation. Examples of populations who should be 
considered when planning language services include, but do not limit 
persons near a plant or facility that is permitted or regulated by an 
EPA recipient, persons subject to or affected by environmental 
protection, clean-up, and enforcement actions of an EPA recipient, or 
persons who seek to enforce or exercise rights under Title VI or 
environmental statues and regulations. Consider whether the affected 
community's ability to participate in the process will be limited by 
the ability of their community members to speak or understand English.
     Plan and budget in advance for translation and interpreter 
services. If resources are limited, consider the sharing of language 
assistance materials and services among and between recipients, 
advocacy groups, Federal grant agencies, and reasonable business 
organizations. Where appropriate, train and/or test the competency of 
bilingual staff to act as limited or ad hoc interpreters and 
translators.
     If in-house or local resources are not available, contact 
nearby colleges or universities for possible assistance for translation 
of interpreter services and identifying other competent but cost 
effective resources.
     Use multilingual fact sheets, notices, signs, maps, etc. 
regularly to provide meaningful access by LEP persons to information in 
as many aspects of the permitting process as appropriate.
    B. Siting Issues--Siting of facilities in neighborhoods that are 
hosting similar and often more facilities than nearby communities.
    Local zoning boards often make land-use decisions based on zoning 
regulations that were enacted several decades ago. These decisions 
affect the location of many facilities. Such decisions can affect 
community members in many ways and result in very contentious and 
difficult situations for state agencies charged with permitting 
facilities. While state/local environmental permitting agencies are 
responsible for minimizing environmental impacts to local communities 
and liable for ensuring that its practices and policies are implemented 
in a nondiscriminatory manner, some of those same agencies may not be 
involved in local zoning decisions. To improve the relationship between 
communities, and state/local governments, some permitting agencies have 
begun working with their local land use and planning boards to try to 
integrate the environmental, social and economic needs of communities 
early in the process, beginning in the site planning stage.\31\
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    \31\ For examples on how some state and local agencies are 
working together to address community concerns regarding siting, see 
the National Academy of Public Administration's July 2003 report 
entitled ``Addressing Community Concerns: How Environmental Justice 
Relates to Land Use Planning and Zoning'' at http.//
www.napawash.org.
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    Some approaches that may be considered to help address potential 
siting issues include:
     Acknowledging concerns communities have with facilities 
placed near residential areas and working with those communities to 
develop outreach strategies to address their concerns;
     Working with the appropriate authorities to ensure that 
data regarding the demographics and location of existing facilities in 
communities are considered before making local land-use and planning 
decisions;
     Revising or developing state level regulations or policies 
that list reasonable land-use objectives and practices to guide 
agencies when making siting decisions;
     Revising or adopting ordinances that prohibit new 
facilities from producing net increases of environmental pollution in 
areas already hosting a number of facilities;

[[Page 10633]]

     Evaluating zoning in heavily populated areas to determine 
whether current land use practices differ from those employed when area 
was previously zoned;
     Having state environmental agencies work with local land-
use and planning boards to help them understand the effects of human 
health and the environment on communities from previous siting 
decisions made, and begin developing strategies to reduce future 
impacts on those affected communities;
     Having state environmental agencies provide outreach and 
technical assistance (through training workshops) to local governments 
on how to engage communities in siting decisions made; and
     Sharing environmental data with local governments to help 
them project and evaluate future impacts of proposed land use plans on 
existing communities before decisions are finalized.
    C. Insufficient Public Notices--Lack of meaningful opportunities 
for communities to participate in the public involvement process 
because notices are not publicized broadly enough to reach all 
communities.
    Community input plays an integral role in any successful permitting 
program. Public notices serve as a means to inform the public and 
ensure community input. Inadequate public notice programs can result in 
a lack of trust between communities and state/local agencies, 
permitting delays, and the filing of Title VI complaints.
    Suggested approaches for reducing future complaints regarding 
insufficient public notices include:
     Seeking community input to find out what pathways would be 
most effective in getting information out to particular communities;
     Choosing outlets that are most widely used by members of 
the affected community (e.g., community-based church bulletins, 
culturally-based community newspapers, grocery stores, libraries, 
foreign-language radio for reaching non-English-speaking communities, 
the internet and other places frequently visited by members of the 
affected community);
     Notifying communities at least once a week (e.g., 10 to 14 
days before, one week before and one day before the event is held via 
radio, phone, e-mail, newspaper, etc.) to ensure the greatest level of 
participation;
     Announcing times, dates and locations of events clearly;
     Providing sufficient information on the purpose and scope 
of the meeting by listing the types of information to be discussed, 
along with the type of feedback/input the agency is seeking from the 
public; and
     Providing names, addresses (including e-mail addresses), 
and telephone numbers of agency contact persons.
    D. Information Repository--Lack of an information repository or 
insufficient notice regarding the location and/or hours for reviewing 
permit information in the repository, or selection of an inconvenient 
location for the affected community.
    Information repositories provide public access to accurate, 
detailed, and current data about facilities in their community.\32\ 
Although states have the authority to require that facilities establish 
information repositories, many states have not included it as a 
mandatory activity in their regulations. However, the existence of an 
information repository in a community shows a responsiveness and 
commitment to the community's needs for comprehensive information 
regarding a facility. Information repositories greatly improve public 
participation by making important information readily accessible to 
communities interested in participating in the permitting process or 
merely wanting to keep abreast of activities at facilities in their 
neighborhoods. Suggestions on approaches recipients may use to reduce 
complaints regarding information repositories include:
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    \32\Federal, state and local government officials may access 
risk management plans (RMP) (describing potential accidental 
releases) and Off-site Consequence Analysis (OCA) information for 
official use by contacting their Implementing Agency or EPA's 
contractor-operated RMP Reporting Center at 301-429-5018 (e-mail: 
userrmp.usersupport@csc.com). OCA information is available to the 
public at Federal reading rooms located throughout the United States 
and its territories. EPA also makes available RMPs without the OCA 
data elements that might significantly assist someone in targeting a 
chemical facility. State Emergency Response Commissions and Local 
Emergency Planning Committees may also provide the public with read-
only access to OCA information for local facilities. Private 
individuals can find contact information for a local committee or 
get a list of facilities that have opted to make their OCA 
information available to the public without restriction at https://
www.epa.gov/ceppo/lepclist.htm or by calling the EPA hotline at 
(800) 424-9346.
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     Establishing, or requiring that facilities establish 
information repositories especially in cases where a significant amount 
of public concern is expected or has surfaced, or when the community 
has unique information needs;
     Choosing locations for information repositories in places 
most convenient and accessible to the public (e.g. local public 
libraries, community centers, churches, etc.);
     Establishing an online information repository for public 
access;
     Ensuring that the existence of the information repository 
is well publicized;
     Ensuring that repositories are placed in we

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