Draft Policy Papers Released for Public Comment: Title VI of the Civil Rights Act of 1964: Adversity and Compliance With Environmental Health-Based Thresholds, and Role of Complainants and Recipients in the Title VI Complaints and Resolution Process, 24739-24743 [2013-09922]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 81 (Friday, April 26, 2013)]
[Notices]
[Pages 24739-24743]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09922]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OA-2013-0133; FRL-9805-9]


Draft Policy Papers Released for Public Comment: Title VI of the 
Civil Rights Act of 1964: Adversity and Compliance With Environmental 
Health-Based Thresholds, and Role of Complainants and Recipients in the 
Title VI Complaints and Resolution Process

AGENCY: Environmental Protection Agency (EPA).

ACTION: Request for comments on EPA's Draft Policies.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) has made 
improving its civil rights program a priority and recognizes that its 
enforcement of Title VI of the Civil Rights Act of 1964 (Title VI) is 
an important tool to use to protect against discrimination and ensure 
that recipients of EPA financial assistance do not discriminate in 
implementing programs and activities. Today, EPA has released two draft 
policy papers for public comment. The first draft policy paper, Title 
VI of the Civil Rights Act of 1964: Adversity and Compliance with 
Environmental Health-Based Thresholds, proposes to change the way EPA 
assesses ``adversity'' by having the Agency refrain from applying a 
``rebuttable presumption'' in certain Title VI investigations. The 
second draft policy paper, Role of Complainants and Recipients in the 
Title VI Complaints and Resolution Process, discusses EPA's proposed 
position on clarifying the roles of complainants and recipients in the 
Title VI complaints process.

DATES: Written comments on this draft must be received on or before May 
28, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2013-0133, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: ORD.Docket@epa.gov.
     Fax: 202-566-1753.
     Mail: Environmental Protection Agency, Mailcode: 2822T, 
1200 Pennsylvania Ave. NW., Washington, DC 20460.
     Hand Delivery: ``EPA's Draft Policies entitled Title VI of 
the Civil Rights Act of 1964: Adversity and Compliance with 
Environmental Health-Based Thresholds, and Role of Complainants and 
Recipients in the Title VI Complaints and Resolution Process'' Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2013-
0133. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. If you previously 
submitted comments to OCR via EPA's Web site, those comments will 
automatically be placed in the Docket and do not need to be 
resubmitted. For additional information about EPA's public docket visit 
the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials regarding this notice are available 
either electronically in www.regulations.gov or in hard copy at the 
``EPA's Draft Policies entitled Title

[[Page 24740]]

VI of the Civil Rights Act of 1964: Adversity and Compliance with 
Environmental Health-Based Thresholds, and Role of Complainants and 
Recipients in the Title VI Complaints and Resolution Process'' Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 
20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The Docket telephone number 
is 202-566-1752. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For information on the docket, 
www.regulations.gov, or the public comment period, please contact the 
Office of Environmental Information (OEI) Docket (Mail Code: 2822T), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone: 202-566-1752; facsimile: 202-566-1753; 
or email: ORD.Docket@epa.gov.
    For information on the draft policy papers, please contact Helena 
Wooden-Aguilar, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW., Washington, DC 20460; telephone: 202-564-7272; facsimile: 
202-565-0196; or email: wooden-aguilar.helena@epa.gov.

SUPPLEMENTARY INFORMATION: 

1. General Information

    The U.S. Environmental Protection Agency (EPA) has made improving 
its civil rights program a priority and recognizes that its enforcement 
of Title VI of the Civil Rights Act of 1964 (Title VI) is an important 
tool in its efforts to protect against discrimination and ensure that 
recipients of EPA financial assistance do not discriminate in 
implementing programs and activities. To that end, in 2009, EPA made a 
commitment to strengthen and revitalize EPA's Civil Rights and 
Diversity Programs. In addition to increasing staff, securing 
additional training and improving processes, as part of that effort, in 
2010, EPA funded an independent in-depth evaluation of its civil rights 
program by the firm Deloitte Consulting LLP. Following receipt of the 
evaluation, the Administrator established a Civil Rights Executive 
Committee to review Deloitte's evaluation, and other sources of 
information, and make recommendations for building a model civil rights 
program for EPA. The Executive Committee posted its draft report for 
public review in February 2012, and the Administrator approved the 
final report and recommendations on April 13, 2012. Implementation of 
those recommendations is ongoing.
    One of the recommendations was for EPA to develop policy statements 
and guidance that elucidates the analytical framework for reviewing 
Title VI complaints and for the use of ADR in resolving such 
complaints. To advance the dialogue on these issues, and consistent 
with its goal to promote transparency, EPA is seeking input and/or 
comment, on two policy issues that can improve the Title VI complaint 
process for all involved stakeholders. EPA initially posted these 
documents on its Web site and sent notification of the posting to 
stakeholders who previously had expressed an interest in agency 
activities. EPA is now publishing in the Federal Register in an effort 
to further expand the potential audience who may see these documents. 
Also, EPA will host two outreach sessions via teleconference with 
interested stakeholders concerning these two draft policies. For more 
information about the scheduled teleconferences, please go to https://www.epa.gov/ocr/title6policy.
    At the same time, EPA is interested in building an email 
distribution list of individuals, organizations, and entities that have 
an interest in EPA's External Civil Rights Program, including Title VI. 
To this end, if you are interested, please go to www.epa.gov/ocr to add 
your name to the list.

2. Draft Proposed Policy Entitled Title VI of the Civil Rights Act of 
1964: Adversity and Compliance With Environmental Health-Based 
Thresholds

I. Introduction

    A. Purpose: This paper outlines the U.S. Environmental Protection 
Agency's (EPA's or Agency's) current thinking about enforcement of 
Title VI of the Civil Rights Act of 1964 concerning how compliance with 
environmental health-based thresholds relates to ``adversity'' in the 
context of disparate impact claims about environmental permitting.\1\
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    \1\ Upon finalization of this paper, the policy described herein 
will supersede the corresponding discussions in the Draft Revised 
Guidance for Investigating Title VI Administrative Complaints 
Challenging Permits, 65 FR 39,667, 39,678, 39,680-81 (2000) 
(discussing relevance of recipients' authority and compliance with 
National Ambient Air Quality Standards) [hereinafter 2000 Draft 
Guidance].
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    This paper does not address allegations about intentional 
discrimination, most non- permitting fact patterns, or technology- and 
cost-based standards; it is focused on discriminatory effects 
allegations that relate to the health protectiveness of pollution 
control permits issued by recipient agencies. In particular, this paper 
concerns the adversity prong of the prima facie case and does not 
address the other analytical steps necessary to determine whether a 
violation has occurred. While this paper discusses Title VI, the 
principles discussed here also apply to the other recipient 
nondiscrimination statutes,\2\ as well as compliance with health 
thresholds in some non-permitting settings, such as brownfields 
cleanups.
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    \2\ See United States Dep't of Transp. v. Paralyzed Veterans, 
477 U.S. 597, 600 n.4 (1986) (stating that courts have ``relied on 
case law interpreting Title VI as generally applicable to later 
statutes''). Other relevant recipient nondiscrimination statutes 
include section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 
794, the Age Discrimination Act of 1975, 42 U.S.C. 6101-6107, and 
section 13 of the Federal Water Pollution Control Act Amendments of 
1972, 33 U.S.C. 1251.
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    B. Background: The Agency has encountered a number of complex and 
unique issues of law and policy in the course of Title VI complaint 
investigations, especially allegations concerning the protectiveness of 
environmental permits issued by state and local agencies that receive 
EPA financial assistance. These challenges have been the consequence of 
the need to merge the objectives and requirements of Title VI with the 
objectives and requirements of the environmental laws that the Agency 
implements. The Agency's environmental regulatory mandates require 
complex technical assessments regarding pollution emissions, exposures, 
and cause-effect relationships. In addition, the cooperative federalism 
approach embodied in the federal environmental statutes requires that 
EPA accomplish its environmental protection objectives in close 
coordination with state and local environmental regulators. Such issues 
do not have ready analogues in the context of other federal agencies' 
Title VI programs.\3\
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    \3\ Nonetheless, EPA continues to review programs and best 
practices in place in other federal agencies to ensure consistency 
to the extent applicable and identify approaches that may be 
transferable to EPA's Title VI program.
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    The Agency's historical efforts in its Title VI program have been 
the subject of some criticism over the years. One particular criticism 
arose in response to the Agency's 1998 Select Steel decision--the 
origin of the rebuttable presumption addressed below. In Select Steel, 
EPA's Office of Civil Rights (OCR) dismissed an administrative 
complaint concerning a permit issued by the

[[Page 24741]]

Michigan Department of Environmental Quality for the Select Steel 
facility based, in part, on the fact that the applicable National 
Ambient Air Quality Standards (NAAQS) were already being met, and that 
the facility's permitted emissions, in combination with other 
stressors, were not causing an adverse effect.\4\ The rebuttable 
presumption approach was incorporated into the Draft Revised Guidance 
for Investigating Title VI Administrative Complaints Challenging 
Permits.\5\
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    \4\ In its evaluation of the NAAQS, OCR noted that ``[t]he NAAQS 
for ozone [and lead] is a health-based standard which has been set 
at a level that is presumptively sufficient to protect public health 
and allows for an adequate margin of safety for the population 
within the area.'' Letter from Ann E. Goode, Director, EPA/OCR, to 
Father Phil Schmitter and Sister Joanne Chiaverini, Co-Directors, 
St. Francis Prayer Center 3 (Oct. 30, 1998) [hereinafter Goode 
Letter]. OCR further noted that the NAAQS provides ``protection for 
group(s) identified as being sensitive to the adverse effects of the 
NAAQS pollutants.'' Office of Civil Rights, U.S. Environmental 
Protection Agency, Investigative Report for Title VI Administrative 
Complaint File No. 5R-98-R5 (Select Steel Complaint) 14 (1998) 
[hereinafter Select Steel Report]. As applied to the complaint, OCR 
found that the area around the proposed Select Steel facility would 
attain the NAAQS for ozone and lead, and that there was no evidence 
suggesting other concerns. As a result, OCR concluded that no 
adverse impacts occurred with respect to the state's permitting 
emissions of those pollutants. See Goode Letter at 3-4; Select Steel 
Report at 27-33.
    \5\ See 2000 Draft Guidance at 39,680-81.
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    The Agency has elected to reexamine the weight it accords 
compliance with environmental health-based thresholds because this 
issue, in particular, sits directly at the crossroads of environmental 
and civil rights law, and to respond to concerns raised by external 
Title VI stakeholders.
    In examining this issue, EPA is mindful of the broad discretion 
afforded to federal agencies in the enforcement of federal statutes, 
including enforcement of federal financial assistance recipients' 
obligations under Title VI. This discretion applies to how agencies 
elect to enforce Title VI, including determining which Title VI issues 
to investigate.\6\
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    \6\ See Lincoln v. Vigil, 508 U.S. 182, 191 (1993); Webster v. 
Doe, 486 U.S. 592, 599 (1988); Heckler v. Chaney, 470 U.S. 821, 831 
(1985).
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    C. Title VI Legal Framework:  \7\ Many Title VI investigations 
concern administrative complaints alleging adverse disparate impacts 
from the issuance of an environmental permit. Such complaints are filed 
pursuant to EPA's Title VI regulations. When assessing such complaints, 
EPA first determines whether it has jurisdiction over the complaint.\8\ 
If so, the Agency then applies the analytical framework for assessing 
significant adverse disparate impact claims established by the courts: 
\9\
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    \7\ The information in this subsection is intended as 
background. It does not change any of EPA's policies or practices.
    \8\ The complaint must be in writing, state a claim, be timely, 
and concern a recipient. See 40 CFR 7.120(b). In addition, EPA 
evaluates whether the complaint is ripe or moot, whether the 
complainant has standing, whether the complaint should be referred 
to another federal agency, and whether clarification is required, 
among other things. See 40 CFR 7.120(a), (d)(1)(i); Federal 
Coordination and Compliance Section, U.S. Dep't of Justice, 
Investigation Procedures Manual for the Investigation and Resolution 
of Complaints Alleging Violations of Title VI and Other 
Nondiscrimination Statutes 12, 16-21, 37-41 (1998).
    \9\ See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 
1407, 1413 (11th Cir. 1993); Larry P. v. Riles, 793 F.2d 969, 982 
(9th Cir. 1984).
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    1. Is there a prima facie case? (The following three elements need 
not be established in order).
    a. Does the alleged discriminatory act have an adverse impact?
    b. Is that adverse impact suffered disparately?
    c. Is the adverse disparate impact caused by the recipient?
    2. Can the recipient offer a substantial legitimate justification 
for its action?
    3. Is there a less discriminatory alternative?
    This paper focuses only on a particular issue that may arise in the 
course of conducting the inquiry described in step 1.a., above. A 
finding of adversity, by itself, does not amount to a finding of a 
Title VI violation, which requires inquiry into all three of the steps 
outlined above, as well as the sub-elements of step 1 (i.e., step 1.b. 
and 1.c.).\10\
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    \10\ See New York City Envtl. Justice Alliance v. Giuliani, 214 
F.3d 65, 69 (2d Cir. 2000) (noting that a prima facie case requires 
``a causal connection between a facially neutral policy and a 
disproportionate and adverse impact,'' and dismissing the case 
because plaintiffs failed to establish causation).
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II. Consideration of Environmental Health-Based Thresholds

    In the course of investigating complaints of discrimination arising 
from the issuance of environmental permits, EPA may need to consider 
whether a permit that complies with a health- based threshold can 
nevertheless cause an adverse impact. Such assessments may involve 
analyses that are complex or, in some cases, simply infeasible with 
existing technical capabilities. Consequently, the Agency believes that 
the issue of establishing adversity warrants further consideration as 
described below.
    A. Issue: How does compliance with environmental health-based 
thresholds \11\ relate to whether adversity exists in Title VI 
investigations?
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    \11\ The term ``environmental health-based thresholds'' is 
intended to encompass both enforceable regulatory standards (e.g., 
NAAQS) and, in cases where such standards are not relevant, non-
enforceable health-based target levels (e.g., reference doses for 
noncarcinogenic effects in the Integrated Risk Information System).
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    B. Current Position: The 2000 Draft Guidance addresses the question 
of how to analyze adversity in a case where the NAAQS--which is a 
health-based standard--is being met. It states that attainment of 
health-based NAAQS creates a rebuttable presumption that no adverse 
impacts are caused by the permit at issue with respect to the relevant 
NAAQS pollutant(s) for purposes of Title VI. As applied in an 
investigation involving the NAAQS, EPA would first establish whether 
the area in question was attaining the NAAQS for the relevant 
pollutant. If so, EPA would presume that the adversity component of the 
prima facie case was not satisfied (i.e., there is no adversity) and 
then dismiss the complaint. However, if the investigation produced 
evidence that significant adverse impacts may be occurring with respect 
to the NAAQS pollutant despite attainment of the NAAQS, the presumption 
would be rebutted and EPA would continue to investigate the remaining 
prongs of the prima facie case. While the 2000 Draft Guidance spoke 
specifically to NAAQS, EPA has considered the issue of the rebuttable 
presumption as it might apply to any health-based threshold and the 
position set forth in this paper is applicable to any complaint in 
which a health-based threshold is present, not just NAAQS.
    C. Proposed Position: While EPA has had little or no opportunity to 
apply the rebuttable presumption (that is, this issue has been 
discussed in the abstract, and has not been applied to any particular 
case following issuance of the 2000 Draft Guidance), EPA now intends to 
eliminate application of the rebuttable presumption when investigating 
allegations about environmental health-based thresholds. Compliance 
with a health-based threshold such as a NAAQS is a serious 
consideration in an evaluation of whether adverse disparate impact 
exists. As described below, the Agency will also assess other 
information that may be available and appropriate when investigating 
whether adverse health impacts exist. While no presumption is 
established, compliance with a health-based threshold would be 
considered, along with other information, to enable the Agency to focus 
on the most significant cases (i.e., those representing

[[Page 24742]]

the highest environmental and public health risk) and to determine 
whether adversity exists.
    Environmental health-based thresholds are set at levels intended to 
be protective of public health. While compliance with such thresholds 
does not guarantee no risk, such compliance strongly suggests that the 
remaining risks are low and at an acceptable level for the specific 
pollutant(s) addressed by the health-based threshold. At the same time, 
EPA believes that presuming compliance with civil rights laws wherever 
there is compliance with environmental health-based thresholds may not 
give sufficient consideration to other factors that could also 
adversely impact human health.
    The approach proposed here differs from the 2000 Draft Guidance's 
rebuttable presumption. Under the latter, complying with the NAAQS 
created a presumption of no adversity that would stand unless 
affirmatively overcome. By contrast, this proposal acknowledges the 
relative significance of compliance with an environmental health-based 
threshold, while also evaluating a number of other factors, as 
appropriate, including the existence of hot spots, cumulative 
impacts,\12\ the presence of particularly sensitive populations that 
were not considered in the establishment of the health-based standard, 
misapplication of environmental standards, or the existence of site-
specific data demonstrating an adverse impact despite compliance with 
the health-based threshold. Because EPA believes that the NAAQS (and 
other health-based thresholds) can be valid and appropriate, and yet 
not assure in all cases that no adverse impact is created, EPA will no 
longer presume an absence of adversity if a NAAQS (or another health-
based threshold) is satisfied. Instead, EPA would consider such 
compliance concurrently with the type of information described above.
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    \12\ The 2000 Draft Guidance Defined ``cumulative impacts,'' see 
65 FR 39,684, and discussed it further at 65 FR 39,678-81.
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    While EPA is eliminating the applicability of the rebuttable 
presumption from its analyses, nevertheless, there may be other 
features present that may impact EPA's ability to consider other 
information concurrently with compliance with health-based thresholds. 
Examples of such features include, but are not limited to, the Agency's 
existing technical capabilities and the availability of credible, 
reliable data (given the practical constraints of complaint 
investigations, EPA expects to gather pre-existing technical data 
rather than generating new data).\13\
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    \13\ The Agency expects to evaluate relevant data from a wide 
variety of sources, such as Toxics Release Inventory; National Air 
Toxics Assessment; Comprehensive Environmental Response, 
Compensation, and Liability Information System; state and local 
databases; and monitor-specific data.
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    If the assessment of relevant factors fails to establish the 
adversity element of the prima facie case, EPA would ordinarily dismiss 
the allegation. Alternatively, if the assessment establishes adversity, 
EPA would then evaluate disparity and complete the other steps in the 
analysis set forth in Section I.C. To assist in its data collection, 
the Agency expects to solicit input from both complainants and 
recipients about these factors during the course of its investigations.
    As the Title VI analytical framework described in Section I.C. 
illustrates, the issue addressed in this paper is not the only question 
that must be addressed in the investigation process. Others may require 
elaboration in the future as well. Moreover, there will be further work 
necessary to develop and implement the policy issue addressed here. 
Thus, the analysis here does not represent the end point, but rather an 
important step forward in considering and evaluating these and other 
policy issues raised in EPA's Title VI work.

3. Draft Proposed Policy Entitled Role of Complainants and Recipients 
In the Title VI Complaints and Resolution Process

I. Introduction

    EPA has made improving its civil rights program a priority and 
recognizes that its enforcement of Title VI of the Civil Rights Act of 
1964 (Title VI), as amended, and other nondiscrimination statutes is an 
important tool in the Agency's efforts to address discrimination.\14\
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    \14\ EPA implements Title VI, section 504 of the Rehabilitation 
Act of 1973 (EPA regulations at 40 CFR part 12), section 13 of the 
Federal Water Pollution Control Act Amendments of 1972, Title IX of 
the Education Amendments of 1972 (EPA regulations at 40 CFR part 5), 
and the Age Discrimination Act of 1975, which prohibit 
discrimination based on race, color, national origin, disability, 
sex (in limited circumstances), and age. EPA's regulation at 40 CFR 
part 7, entitled ``Nondiscrimination in Programs or Activities 
Receiving Federal Assistance from EPA,'' includes general and 
specific prohibitions against intentional and disparate effects or 
disparate impact discrimination by EPA's assistance recipients on 
the basis of race, color, national origin, sex(in limited 
circumstances), or disability, and age. Every EPA grant recipient, 
including each state environmental agency receiving financial 
assistance from EPA, is subject to the terms of 40 CFR part 7.
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    The purpose of this paper is to set forth the U.S. Environmental 
Protection Agency's current thinking on the roles of complainants and 
recipients in EPA's Title VI administrative complaint processing and 
resolution efforts. The proposed approaches discussed below clarify and 
expand upon how EPA will implement its current regulations. In 
discussing these proposed approaches, EPA seeks to strike a balance 
between providing greater involvement for complainants in the complaint 
process while continuing to work closely with recipients, as detailed 
in the regulations, to address complaints filed against them and, as 
appropriate, in EPA's discretion, resolve complaints where possible.
    A Title VI complainant is not like a plaintiff in court. Rather, a 
complainant's role is more like that of a tipster, who reports what he 
or she believes is an act violating Title VI by an entity receiving 
federal financial assistance (the recipient) to the associated agency 
providing such assistance, in this case EPA. EPA is not in an 
adjudicatory role, evaluating evidence produced by opposing sides, but 
instead investigates allegations about its recipient, and reaches a 
conclusion regarding whether a violation of Title VI has occurred.
    EPA's regulations do not prescribe a role for the complainant once 
he or she has filed a complaint. Nevertheless, one of EPA's goals is to 
promote appropriate \15\ involvement by complainants and recipients in 
the Title VI complaint process. This paper addresses how EPA will 
enhance the roles and opportunities for complainants and recipients to 
participate in the complaint and resolution process including efforts 
related to informal resolution and voluntary compliance.
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    \15\ All determinations about if any action described in this 
document is ``appropriate'' will be made by the EPA as part exercise 
of enforcement discretion, which was recognized by the Supreme Court 
in Alexander v. Choate, 469 U.S. 287, 293-294 (1985).
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    This document does not change or substitute for any law, 
regulation, or any other legally binding requirement; is not legally 
enforceable; and does not impose any legally binding requirements.

II. Current Position

    A. Complainants: EPA's Draft Revised Guidance for Investigating 
Title VI Administrative Complaints Challenging Permits (issued in June 
2000) (Draft Investigation Guidance), states that complainants may play 
an important role in the administrative process; however, that role is 
determined by the nature and circumstances of the

[[Page 24743]]

claims.\16\ Specifically, during the jurisdictional review of Title VI 
complaints, OCR may seek clarification regarding the issues articulated 
by the complainants.\17\ OCR may also request interviews of 
complainants or request additional information from the complainants 
during the course of an investigation. Finally, in appropriate cases, 
OCR may offer complainants and recipients an opportunity to participate 
in Alternative Dispute Resolution concerning the matters raised in the 
complaint.
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    \16\ See Draft Revised Investigation Guidance, 65 FR 39,650, 
39,671 (proposed June 27, 2000).
    \17\ 40 CFR 7.120(d)(1).
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    B. Recipients: EPA's Draft Investigation Guidance states that OCR 
may work closely with recipients to ensure that the Agency has a 
complete and accurate record of all relevant information pertaining to 
the complaint, and a full understanding of the recipient's position 
relating to the allegations.\18\ In order for OCR to perform the 
appropriate analyses, one of the most important things recipients may 
do as early as possible is to provide OCR with all of the information 
relevant to the complaint, including, but not limited to, background 
information, the permit application(s), monitoring data, computer 
modeling, other aspects of the recipient's analysis of the 
application(s), and any information relating to steps the recipient 
took to address potential Title VI concerns. Moreover, under EPA's 
Title VI regulations, OCR has the authority to obtain information from 
recipients and interview recipient staff.\19\ Full and expeditious 
disclosure of such information helps to facilitate resolution of Title 
VI complaints.\20\
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    \18\ See Draft Revised Investigation Guidance, 65 FR at 39,671.
    \19\ 40 CFR 7.85(b), (f).
    \20\ In addition to considering information supplied by 
recipients, OCR will also evaluate information provided by 
complainants.
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    EPA's Title VI regulations provide the recipient with several 
opportunities to respond to the complaint and to any OCR finding. 
First, the recipient may make a written submission responding to, 
rebutting, or denying the allegations raised in a complaint.\21\ 
Second, OCR may attempt to resolve the complaint informally, during 
which time the recipient will be able to state its position. Third, if 
OCR makes a preliminary finding of noncompliance with the regulations, 
the recipient may submit a written response within 50 calendar days of 
receiving the preliminary finding, demonstrating that the preliminary 
finding is incorrect or that compliance may be achieved through steps 
other than those recommended by OCR.\22\
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    \21\ 40 CFR 7.120(d)(1)(iii).
    \22\ 40 CFR 7.115(d)(2).
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    Finally, if OCR begins the procedure to deny, annul, suspend, or 
terminate EPA assistance, recipients may request a hearing before an 
Administrative Law Judge (ALJ)\23\ and, if the ALJ's decision upholds a 
finding of noncompliance, the recipient may then file exceptions with 
the Administrator.\24\
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    \23\ 40 CFR 7.130(b)(2).
    \24\ 40 CFR 7.130(b)(3).
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III. Proposed Position

    EPA has evaluated its current policy and practices on the role and 
opportunities of complainants and recipients in complaint processing 
and resolution efforts. The following is intended to clarify and expand 
on EPA's existing policy and practices in this regard.
    EPA intends to follow these principles in the processing and 
resolution of Title VI complaints, as applicable and appropriate:
A. Complaint Process
    1. EPA may seek clarification from the complainants during its 
initial review of the administrative complaint. At the time they file a 
complaint, complainants should provide EPA any relevant information 
available to them which supports their claim(s).
    2. Upon acceptance of a complaint, but prior to the initiation of 
an investigation, EPA will offer in appropriate cases, at EPA's 
expense, complainants and recipients the opportunity to engage in 
Alternative Dispute Resolution efforts. EPA considers the ADR process 
to be a viable option for complainants and recipients to address some, 
if not all, of the issues raised in a complaint.
    3. EPA will continue its present practice of requesting additional 
information (e.g. interviews) from the complainants and recipients 
during the course of an investigation.
    4. EPA will make information in its case tracking system available.
B. Informal Resolution And/Or Voluntary Compliance
    EPA may, at any point prior to a preliminary finding of compliance, 
seek to informally resolve complaints of discrimination.
    Following issuance of a preliminary determination of noncompliance, 
EPA may enter into a voluntary compliance agreement with a recipient to 
resolve a complaint. Where EPA issues a preliminary finding of 
noncompliance, in addition to notifying the recipient, per the 
regulations, EPA intends to notify complainant of said finding.\25\ EPA 
will also, at the appropriate time, notify the public of a preliminary 
finding of noncompliance by posting its decision on its public access 
Web sites.
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    \25\ When preliminary finding has been made and the EPA is 
engaging in voluntary compliance in accordance with 40 CFR 7.115(d), 
EPA retains the discretion to contact the Recipient first.
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    If resolution discussions are occurring between EPA and the 
recipient, EPA will use its discretion, when appropriate, to engage 
complainants who want to provide input on potential remedies, and EPA 
will determine based on its discretion when such engagement may occur 
during the process. For instance, EPA, in appropriate cases, may 
request and consider complainant's input on potential remedies for the 
complaint and may forward the suggested remedies to the recipient for 
further discussion with EPA. Alternatively, depending on the complaint, 
EPA may seek and consider complainant's input on potential terms of a 
settlement agreement.
C. Alternative Dispute Resolution
    As stated above, EPA considers the ADR process to be a viable 
option for complainants and recipients to address some, if not all, of 
the issues raised in Title VI complaints. As appropriate, EPA may offer 
the complainant and the recipient an opportunity to engage in the ADR 
process at any stage in the complaint process, even if an investigation 
has started.

    Dated: April 16, 2013.
Diane E. Thompson,
Chief of Staff, Office of the Administrator.
[FR Doc. 2013-09922 Filed 4-25-13; 8:45 am]
BILLING CODE 6560-50-P