Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance), 14207-14217 [06-2691]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 54 (Tuesday, March 21, 2006)]
[Notices]
[Pages 14207-14217]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2691]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8007-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Guidance.

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SUMMARY: EPA's Office of Civil Rights is publishing the Title VI Public 
Involvement Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Recipient Guidance) as final. This 
guidance revises the previous Draft Final Title VI Public Involvement 
Guidance for EPA Assistance Recipients Administering Environmental 
Permitting Programs (Draft Final Recipient Guidance) issued for public 
comment in March 2005. The revisions made in this document reflect and 
include public involvement considerations suggested in written comments 
the Office of Civil Rights (OCR) received on the Draft Final Recipient 
Guidance. This guidance has been developed for recipients of EPA 
assistance that implement environmental permitting programs. It 
discusses various approaches and suggests tools recipients may use to 
help enhance the public involvement aspects of their current permitting 
programs and address potential issues related to Title VI of the Civil 
Rights Act of 1964 (Title VI) and EPA's regulations implementing Title 
VI.

DATES: Effective Date: March 21, 2006.

ADDRESSES: Copies of the written comments received on the Draft Final 
Recipient Guidance as well as EPA's responses to the written comments 
may be obtained by contacting the Office of Civil Rights at: U.S. 
Environmental Protection Agency, Office of Civil Rights (1201A), 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-1000.

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. Review of Public Comments and Revisions to the Draft Guidance
C. Title VI Public Involvement Guidance for EPA Assistance 
Recipients Administering Environmental Permitting Programs 
(Recipient Guidance)

A. Preamble

    Today's Federal Register document contains the guidance document 
entitled, the Title VI Public Involvement Guidance for EPA Assistance 
Recipients Administering Environmental Permitting Programs (Recipient 
Guidance). It offers recipients of U.S. Environmental Protection Agency 
assistance, suggestions on public involvement approaches they may use 
to help enhance their current environmental 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.\1\ The Recipient Guidance addresses and incorporates 
public involvement suggestions EPA's Office of Civil Rights (OCR) 
received on the Draft Final Title VI Public Involvement Guidance for 
EPA Assistance Recipients Administering Environmental Permitting 
Programs (Draft Final Recipient Guidance). This Recipient Guidance will 
replace the Draft Final Recipient Guidance which was issued in March 
2005.\2\ Much of the

[[Page 14208]]

information in this Recipient Guidance is based on EPA's commitment to 
early and meaningful public involvement throughout the entire 
permitting process.
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    \1\ Title VI of the Civil Rights Act of 1964, Public Law 88-352, 
78 Stat. 252 (codified as amended at 42 U.S.C. 2000d to 2000-7); 40 
CFR part 7.
    \2\ 70 FR 10625 (2005).
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    The Draft Final Recipient Guidance was developed to revise the 
Draft Title VI Guidance for EPA Assistance Recipients Administering 
Environmental Permitting Programs (Draft Recipient Guidance) published 
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) \3\, the work of the Environmental 
Council of States (ECOS) \4\, 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.
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    \3\ 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.
    \4\ 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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    EPA also published the Draft Revised Guidance for Investigating 
Title VI Administrative Complaints Challenging Permits (Draft Revised 
Investigative Guidance) in June 2000. The Draft Revised Investigation 
Guidance discussed how OCR would process complaints alleging adverse 
disparate health impacts from the issuance of environmental permits. To 
avoid redundancy, OCR decided that the 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 may be included in guidance to be 
published at a later date. Today, EPA is issuing the Recipient Guidance 
as final.

B. Review of Public Comments and Revisions to the Draft Guidance

    EPA received few comments regarding the Draft Final Recipient 
Guidance. Some of the comments received pertained to the public 
involvement practices suggested in the Draft Final Recipient Guidance. 
Other comments focused on how OCR should interpret and implement EPA's 
Title VI regulations. OCR only addressed comments that pertained to the 
focus of this guidance, which is suggested public involvement practices 
recipients can use to help ensure that federal funding is used in 
compliance with the provisions of Title VI and EPA's Title VI 
implementing regulations. As a result of some of the comments received, 
OCR revised the document to include a discussion on the need and 
importance of ensuring a level playing field for all stakeholders 
before coming to the table to negotiate issues in the Alternative 
Dispute Resolution (ADR) process, further explanations regarding some 
of the suggested approaches to help address potential siting issues, 
revisions on how OCR intends to conduct their ``due weight'' analysis, 
and an additional section on The Interface Between Public Involvement 
and The Rehabilitation Act. OCR has decided to address the comments by 
revising and incorporating new language into the final version of this 
guidance.

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

I. Introduction
    A. Purpose of This Guidance
    B. Title VI of the Civil Rights Act of 1964
    C. EPA's Guiding Principles for Title VI and the Recipient 
Guidance
    D. The Interface Between Public Involvement and Title VI
    E. The Interface Between Public Involvement and the 
Rehabilitation Act
    F. 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
    B. Siting
    C. Insufficient Public Notices
    D. Information Repository
IV. Evaluating Approaches for Meaningful Public Involvement
V. Due Weight
VI. Conclusion
VII. Bibliography

I. Introduction

A. Purpose of This Guidance

    This guidance is written for recipients \5\ of U.S. Environmental 
Protection Agency assistance \6\ that administer environmental 
permitting programs. It offers suggestions on approaches and ways to 
address public involvement situations to ensure that federal funding is 
used in compliance with the provisions of Title VI of the Civil Rights 
Act of 1964, as amended (Title VI) \7\ and EPA's Title VI implementing 
regulations.\8\ The approaches discussed in this guidance may be used 
to create new public involvement activities or to enhance existing 
public involvement activities to address allegations of discriminatory 
public participation practices during the permitting process.
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    \5\ ``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, 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.
    \6\ 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: (1) Funds; (2) Services of personnel; or (3) Real or 
personal property or any interest in or use of such property, 
including (i) Transfers or leases of such property for less than 
fair market value or for reduced consideration; and (ii) Proceeds 
for a subsequent transfer or lease of such property if EPA's share 
of its fair market value is not returned to EPA.''
    \7\ Public Law 88-352, 78 Stat. 252 (codified as amended at 42 
U.S.C. 2000d to 2000d-7).
    \8\ 40 CFR part 7, Nondiscrimination in Programs or Activities 
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

[[Page 14209]]

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. EPA will take into 
consideration 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.'' \9\
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    \9\ Alexander v. Choate, 469 U.S. 287, 293-294 (1985).
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    EPA initially issued Title VI regulations in 1973 and revised them 
in 1984.\10\ 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.\11\ When the recipient 
receives EPA assistance, they accept the obligation to comply with 
EPA's Title VI implementing regulations. Recipients must also adopt 
grievance procedures that assure the prompt and fair resolution of 
complaints which allege violations of EPA's Title VI regulations.\12\ 
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.'' \13\ 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 (for example, the issuance of 
an environmental permit) that allegedly has a discriminatory purpose or 
effect.\14\
    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 investigations 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. 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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    \10\ See memo dated October 26, 2001 from Ralph F. Boyd Jr., 
Assistant Attorney General for the Civil Rights Division, to the 
``Heads of Departments and Agencies General Counsels and Civil 
Rights Directors'' which states the Department of Justice's position 
that the Sandoval decision at 532 U.S. 286 does not alter the 
validity of enforcing Title VI regulations or limit the authority 
and responsibility of Federal grant agencies to enforce their own 
implementing regulations.
    \11\ 40 CFR 7.80, EPA Form 4700-4 and Standard Form 424.
    \12\ 40 CFR 7.90.
    \13\ 40 CFR 7.35(b).
    \14\ 40 CFR 7.120(b)(2).
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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 
Department of Justice's Assistant Attorney General for Civil 
Rights.\15\ 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 ensure 
that federal funding is used in compliance with the provisions of Title 
VI and EPA's Title VI implementing regulations.
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    \15\ Executive Order 12250, 45 FR 72995 (1980) (section 1-402).
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C. EPA's Guiding Principles for Title VI and the Recipient Guidance

    To ensure stakeholder involvement in the development of the Draft 
Recipient Guidance, EPA established a Title VI Implementation Advisory 
Committee (Title VI Advisory Committee) under the National Advisory 
Council for Environmental Policy and Technology (NACEPT) in March 1998. 
The Title VI Advisory Committee was comprised of representatives 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 NACEPT included in their April 1999, Report of the 
Title VI Implementation Advisory Committee: Next Steps for EPA, State, 
and Local Environmental Justice Programs.\16\ EPA established guiding 
principles for implementing Title VI and developing the Draft Recipient 
Guidance. In implementing Title VI and developing this final guidance, 
EPA is reaffirming its commitment to the following principles:
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    \16\ For a copy of this report, see: https://www.epa.gov/
civilrights/t6faca.htm.
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     All persons regardless of race, color or national origin 
are entitled to a safe and healthful environment.
     Strong civil rights enforcement is essential in preventing 
Title VI violations and complaints.
     Enforcement of civil rights laws and environmental laws 
are complementary, and can be achieved in a manner consistent with 
sustainable economic development.
     Early, preventive steps, whether under the auspices of 
state and local governments, in the context of voluntary initiatives by 
industry, or at the initiative of community advocates, are strongly 
encouraged to prevent potential Title VI violations and complaints.
     Meaningful outreach and public participation early and 
throughout the decision-making process is critical to identify and 
resolve issues, and to also assure proper consideration of public 
concerns.
     Intergovernmental and innovative problem-solving provide 
the most comprehensive response to many concerns raised in Title VI 
complaints.

[[Page 14210]]

D. The Interface Between Public Involvement and Title VI

    Public involvement should be an integral part of the permit 
decision-making process to help the public understand and assess how 
issues affect their communities. The degree of public involvement in 
the permitting process can directly affect the likelihood of the filing 
of complaints alleging discrimination. Meaningful public involvement 
consists of informing, consulting, and working with potentially 
affected and affected 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.''\17\ OCR suggests that EPA recipients consider using a 
similar approach when implementing their environmental permit programs.
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    \17\ For a copy of this report, see: https://www.epa.gov/
publicinvolvement/policy2003/finalpolicy.pdf
_____________________________________-

 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. 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 
having recipients focus on early, inclusive and meaningful public 
involvement throughout the entire permitting process will help ensure 
that Federal funding is used in compliance with the provisions of Title 
VI and EPA's Title VI implementing regulations.
    In 1999 the Office of Solid Waste conducted a series of seven case 
studies to determine if the redevelopment of EPA Brownfields \18\ 
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,'' 
\19\ indicated that community residents are not likely to file Title VI 
complaints when the redevelopment process provides for early and 
meaningful community involvement, and creates a benefit for the local 
community. In several of the case study Pilots, communities were 
involved in identifying and helping to resolve issues during the early 
stages of the process which helped build trust between stakeholders and 
a sense of ownership for community members. According to those 
interviewed, community outreach and involvement served to prevent the 
filing of Title VI complaints and other opposition to development 
projects.
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    \18\ 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 takes development pressures off of 
undeveloped, open land which help to improve and protect the 
environment. For more information on Brownfields Cleanup and 
Redevelopment, see: https://www.epa.gov/swerosps/bf/
    \19\ 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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E. The Interface Between Public Involvement and the Rehabilitation Act

    It is important that recipients provide access and accommodation to 
individuals with disabilities who wish to take part in public 
involvement activities. Recipients may consult Section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. 794, and EPA's implementing 
regulations, 40 CFR Part 7. Additional documents which list information 
to assist recipients in providing access and accommodation are included 
in Section VII of this guidance, ``Bibliography.'' Many of the 
documents listed in the bibliography refer to Title II of the Americans 
with Disabilities Act, 42 U.S.C. 12131 et seq., but also have 
applicability to Section 504.

F. Scope and Flexibility

    This guidance was written at the request of the states and is 
intended to offer suggestions to help EPA state and local recipients 
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 approaches to enhance the public 
involvement aspects of their current permitting program and to help 
ensure that federal funding is used in compliance with the provisions 
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 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. 
However, compliance with environmental laws does not ensure compliance 
with Title VI. 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.\20\
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    \20\ 42 U.S.C. 2000d to 2000d-7, 40 CFR 7.30 and 7.35.
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II. Approaches to Meaningful Public Involvement

    This guidance suggests a number of public involvement approaches 
recipients may want to adopt and implement 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

[[Page 14211]]

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 practices 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 relate to programs, 
activities or methods of administration.\21\Suggested approaches are 
listed below.
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    \21\ For further discussion of the concept of giving ``due 
weight'' to a recipient's compliance efforts in the context of a 
Title VI complaint, see Section V.
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A. Developing and Implementing an Effective Public Involvement Plan

    A Public Involvement Plan (PIP) is a document that serves as the 
basic foundation of any good public involvement program. PIPs serve as 
early involvement tools to identify community concerns and lay out 
approaches recipients plan to take to address those concerns through 
various outreach activities. An effective PIP includes discussions of 
what recipients plan to 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. An effective PIP 
expedites the flow of information for unexpected events, answers basic 
questions on issues related to the community's concerns, and helps 
ensure better decision outcomes to benefit the affected community. 
Equally important, an effective PIP provides 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.\22\An effective PIP includes the following 
information:
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    \22\ 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 past and present community concerns (including any 
Title VI complaints),
    (5) A detailed plan of action (outreach activities) recipient will 
take to address concerns,
    (6) A contingency plan for unexpected events,
    (7) Location(s) where public meetings will be held (consider the 
availability and schedules of public transportation),
    (8) Contact names for obtaining translation of documents and/or 
interpreters for meetings,
    (9) Appropriate local media contacts (based on the culture of the 
community), 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. Hard copies of PIPs should be made available 
for the public in areas that would be easily accessible to the 
community (e.g., libraries, community centers, etc.). Because of the 
informative/exchange age in which we live, PIPs should also be made 
available for the public electronically by way of 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 e.g., Permitting, Environmental Justice, etc.) 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 some 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 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 
that will help ensure that federal funding is used in compliance with 
the provisions of Title VI and EPA's Title VI implementing regulations 
include:

[[Page 14212]]

     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.\23\
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    \23\ 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.\24\ 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. Consider tailoring and integrating 
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:
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    \24\ See 40 CFR part 25 and part 124, Subpart A.
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     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 communities with alternate 
means of participating for those 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 the RCRA program,\25\ 
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.
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    \25\ See 40 CFR 124.31(b).
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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 
concerns in a community. Stakeholder groups identify, discuss and work 
toward resolving concerns 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 from various 
backgrounds and cultures opportunities to take active roles to 
effectively contribute and possibly 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. 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 
may feel 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. Consider offering training to 
educate the public on process and basic technical issues that are 
relevant in making

[[Page 14213]]

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 fact 
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) \26\ and 
assistance through programs such as Technical Outreach Services for 
Communities (TOSC) \27\ 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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    \26\ A 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.
    \27\ The 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) \28\ techniques where appropriate to prevent and 
address concerns regarding public involvement in the permitting 
process. ADR refers to voluntary procedures used to prevent and settle 
controversial issues by developing and implementing an outcome 
agreeable to all parties. The goal of ADR is for stakeholders to 
collaborate and resolve issues acceptable to everyone involved.
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    \28\ For more information on ADR techniques, contact EPA's 
Conflict Prevention and Resolution Center at https://www.epa.gov/adr.
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    ADR includes using a wide range of processes to resolve 
controversial issues. All ADR techniques involve a neutral third party 
who assists others in designing and conducting a process for reaching 
possible agreement. The neutral third party should not have a stake in 
the substantive outcome of the process and is equally accountable to 
all participants in the ADR process. Often the use of ADR includes 
dialogue between parties to reach acceptable solutions. 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. For actual or potential Title VI matters, ADR can 
provide parties with a forum to discuss a full range of issues that may 
not be possible to address through formal administrative processes. 
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 
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.
     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.
    A number of factors can contribute to a successful ADR process in 
the Title VI context and help provide all parties with confidence to 
maximize their opportunity to reach resolution. These factors include:
     Designing a process for selecting a neutral third party 
who will be able to meet the needs of all parties. For

[[Page 14214]]

example, parties may need to engage a neutral third party who is 
bilingual or who has past experience successfully assisting in the 
resolution of Title VI complaints.
     Using a neutral third party to conduct a confidential 
situation assessment; including interviewing all parties to identify 
the issues and making recommendations for the ADR process prior to 
beginning any dialogue.
     Using a neutral third party's assistance to develop and 
agree on a set of guidelines or ground rules for the process to ensure 
that expectations of all the participants are clear from the beginning.
     Considering participants' needs for information and 
expertise, before coming to the table and during the process, to 
enhance their dialogue. For example, design a process that will allow 
all parties to provide necessary information in good faith and in some 
cases secure independent technical expertise to assist some of the 
parties prior to any negotiations.
    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. 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 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 a similar 
nature. In offering these suggestions, EPA is not addressing the merits 
of any specific complaint or any overarching issue. Rather, EPA is 
suggesting ways to improve public involvement.

A. Language

    Issue: Complaints frequently note a failure to provide printed 
information in other languages or appropriate interpreters at meetings 
for 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 Guidance).\29\ 
According to the LEP 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 an 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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    \29\ For more information regarding improving access to services 
for persons with limited English proficiency, see Executive Order 
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: 
https://www.LEP.gov.
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    Additional suggestions on approaches recipients may use to reduce 
and possibly avoid 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 may be needed to ensure 
meaningful participation. Examples of populations to consider when 
planning language services include, but are not limited to, 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 their rights under Title VI or 
environmental statues and regulations. Consider whether the affected 
community's ability to participate in the process may 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 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

    Issue: Complaints frequently refer to the siting of facilities in 
neighborhoods that already host similar and often more facilities than 
neighborhoods in nearby communities. Complainants believe that many of 
these siting decisions are based on zoning regulations that are in need 
of revision.
    Local zoning and planning authorities typically make land use 
zoning decisions and approve development plans to ensure they conform 
with existing zoning regulations. Some of the zoning regulations were 
enacted several decades ago. State and local environmental permitting 
agencies are responsible for minimizing the environmental impacts to 
local communities and ensuring that their practices and policies are 
implemented in a nondiscriminatory manner. However, some of the 
environmental permitting 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.\30\
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    \30\ 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 https://
www.napawash.org.

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[[Page 14215]]

    Some approaches that may be considered to help address potential 
siting issues include:
     Acknowledging concerns communities have with existing 
facilities 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. Understanding the existing environmental and health impacts 
as well as the demographics, in the areas under consideration for the 
siting of new facilities, may help recipients ensure they do not issue 
permits in a discriminatory manner.
     Revising or developing state level regulations or policies 
that list land-use objectives and practices to guide local zoning 
agencies when making siting decisions.
     Working with appropriate authorities to identify locations 
for new facilities that avoid net increases of pollution in communities 
with disproportionately high exposures or that already host a number of 
facilities. Title VI and EPA's implementing regulations do not 
expressly prohibit the siting of facilities in facility-dense areas. 
Recipients may choose to consider making facility density one criterion 
in their siting and permitting analysis to help identify communities 
where the potential environmental and health impacts could be 
significant.
     Working with local land-use and planning boards to review 
current land use practices in heavily populated areas, 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.
     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

    Issue: Complaints frequently allege the 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 notices 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 the most effective ways of 
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 multiple times prior to the event 
(e.g., 10 to 14 days before, one week before and one day before the 
event is held via radio, phone, email, newspaper, etc.) to ensure the 
greatest level of participation.
     Announcing times, dates and locations of events clearly in 
the appropriate languages.
     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.
     Providing names, addresses (including email addresses), 
and telephone numbers of agency contact persons.

D. Information Repository

    Issue: Complaints frequently discuss the 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 repository.
    Information repositories should provide the public with access to 
accurate, detailed, and current data about