The EPA is inviting public comment on two draft policies intended to improve the Agency’s enforcement of Title VI of the Civil Rights Act of 1964.  The Agency views Title VI as an important tool to use to ensure that recipients of EPA financial assistance do not discriminate in implementing programs and activities. 

The draft policies are part of a process the Agency began in 2009 to strengthen and revitalize its Civil Rights and Diversity Programs.  That process included increasing staff, securing additional training, and forming a Civil Rights Executive Committee.  One recommendation made by the committee is that the Agency should develop environmental justice (EJ) policy statements that elucidate the analytical framework for reviewing Title VI complaints.  The two draft policies build on this recommendation.

Adversity and Compliance with Environmental Health-based Thresholds.

This draft would change the way the EPA assesses “adversity” in the context of disparate impact claims resulting from environmental permitting. 

Currently, when reviewing complaints that a facility air permit results in disparate impacts on low-income or minority groups, the Agency determines first if the area in which the facility is located is in compliance with National Ambient Air Quality Standards (NAAQS).  If the area is in attainment, the EPA presumes that the adversity component of the prima facie case was not satisfied (i.e.,there is no adversity) and then dismisses the complaint.  However, if the investigation produces 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 the EPA would continue to investigate the remaining prongs of the prima facie case. 

The intent of the draft document is to eliminate the rebuttable presumption.  In other words, the EPA would not presume that no adverse impact is occurring simply because a geographical area is attaining the NAAQS.  Rather, attainment with the NAAQS will be considered on equal footing with other appropriate factors, including the existence of hot spots, cumulative impacts, 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,” states the Agency.

Role of Complainants and Recipients in the Title VI Complaints and Resolution Process

This draft policy would enhance the role of Title VI complainants in the resolution process.  The EPA notes that a complainant is currently viewed as a “tipster” who reports what he or she believes is an act by a recipient of a federal financial assistance that violates Title VI.  EPA’s regulations do not prescribe a role for the complainant after the complaint is filed.  Under its current policy, the EPA may seek clarification or request additional information from the complainant about the issues of concern.  In “appropriate cases,” the Agency may offer complainants and recipients an opportunity to participate in alternative dispute resolution (ADR). 

The draft clarifies and expands the role and opportunities of complainants and recipients in four ways:

1. The 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 the EPA with any relevant information available to them to support their claim(s).
2. Upon acceptance of a complaint, but before the initiation of an investigation, the EPA will offer, in appropriate cases, at EPA’s expense, complainants and recipients the opportunity to engage in ADR. The 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. The 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. The EPA will make information in its case tracking system available.

Also under the draft, if resolution discussions are occurring between the EPA and the recipient, the Agency will use its discretion, when appropriate, to engage complainants who want to provide input on potential remedies, and the EPA will determine, based on its discretion, when such engagement may occur during the process.

Publication of the draft policies was announced in the April 26, 2013, FR.