30 ELR 11144 | Environmental Law Reporter | copyright © 2000 | All rights reserved

The Draft Title VI Recipient and Revised Investigation Guidances: Too Much Discretion for EPA and a More Difficult Standard for Complainants?

Professor of Law, University of Cincinnati College of Law. I wish to thank Eileen Gauna and Josh Sarnoff for their perceptive comments. Any errors or omissions are my responsibility.

[30 ELR 11144]

Title VI of the 1964 Civil Rights Act prohibits federal agencies from providing financial assistance to recipients that commit discrimination. The U.S. Environmental Protection Agency's (EPA's) Title VI regulations prohibit both intentional and unintentional discrimination by state and local agencies receiving Agency funds. However, these regulations were written before the question of environmental inequities became a serious public concern and do not explain how the Agency will define or measure adverse disparate impacts that result from a recipient's permitting decisions. In 1998, EPA released its Interim Guidance on Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance) to address these issues.¹ A wide range of groups criticized the Interim Guidance for using vague definitions, failing to elucidate the crucial term "adverse disparate impact," and not suggesting how recipients might avoid Title VI complaints.

After promising for over two years to revise its policies, finally, on June 27, 2000, EPA published two draft guidances on Title VI in the Federal Register.² First, prepared at the request of state and local officials seeking to [30 ELR 11145] avoid complaints and violations, the Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance) discusses a range of possible approaches to minimize the likelihood that a complaint will be filed against a recipient.³ Second, the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Revised Investigation Guidance) clarifies how the Agency's Office of Civil Rights (OCR) will process complaints, conduct its investigations, determine whether a permit decision creates unacceptable adverse impacts, and weigh efforts by the recipient to reduce or eliminate adverse disparate impacts.⁴ These guidances deal only with permitting decisions. Later guidances will address other issues, including allegedly disproportionate enforcement.⁵

EPA argues that the new guidances provide more detailed explanations of key terms and of the steps in the Title VI process than the Interim Guidance.⁶ In particular, the Agency contends that the guidances provide more clarity about how the Agency will conduct an adverse disparate impact analysis and how the OCR will weigh efforts by a recipient to reduce such impacts. Anne Goode, director of the OCR, has tried to reassure state officials that EPA will give "due weight" to a state's good-faith efforts to reduce disparate impacts and to incorporate public participation in its permit decisions.

However, a wide range of industry, state officials, and environmental justice advocates argue that the guidances are still too vague, lack important definitions, are nonbinding, and leave too much discretion to EPA in deciding what is an adverse disparate impact and when a state program is in compliance with Title VI.⁷ The guidances do provide more definite answers for some questions than the Interim Guidance, but many criticize the Agency for retaining too much discretion over key procedural and substantive issues. EPA's insistence on retaining discretion over so many important issues undermines the Agency's stated goal of minimizing uncertainties about the Title VI process. States and business interests seeking permits want EPA to establish definite "safe harbors" that provide guarantees that they can avoid Title VI liability if they follow specific guidelines.⁸ They argue that establishing "safe harbor" standards for states would make it easier for recipients to comply with the statute and, accordingly, would help eliminate problems that would otherwise result in complaints. On the other hand, civil rights advocates are generally even morecritical of the guidances because EPA's emphasis on whether the recipient has made "good-faith" efforts suggests the Agency will rarely revoke a challenged permit or impose sanctions against a recipient even if the Agency finds evidence that a permit causes adverse disparate impacts.⁹

There has been somewhat more positive reaction to the Recipient Guidance than to the Revised Investigation Guidance. According to Anne Goode, a wide range of interested parties, including state and local environmental agencies, are pleased with the Recipient Guidance because it offers a number of practical steps that recipients can take to meet their Title VI responsibilities.¹⁰ However, while praising EPA for providing flexibility for states, the Environmental Council of States (ECOS), an organization of state environmental officials, is concerned that the Recipient Guidance does not provide guarantees that the Agency's suggested options for improving Title VI programs will safeguard recipients from Title VI liability, that the Agency's suggested guidelines will pressure states to adopt expensive unfunded mandates, and that the Recipient Guidance does not allow states to assume authority to enforce Title VI programs.¹¹ Furthermore, by failing to establish a clear standard for when a recipient's programs are in compliance with Title VI, the Agency undermines its goals of providing guidance to recipients about how they should improve their permit programs, encouraging recipients to adopt voluntary agreements to reduce or eliminate adverse disparate impacts, and achieving progress that eliminates the need for Title VI complaints. Conversely, environmental justice groups argue that EPA's encouragement of voluntary recipient efforts implies that the Agency is unwilling to impose real sanctions if a recipient makes any effort to reduce adverse disparate impacts.¹² A wide range of groups agree that the Agency should provide a clearer definition of what constitutes "good-faith" efforts by a recipient.

There has been more criticism of the Revised Investigation Guidance because it addresses a number of difficult procedural and substantive issues. To conclude that a permit decision caused adverse disparate impacts, the Agency [30 ELR 11146] must generally find scientifically valid and statistically significant evidence that a minority group suffers disproportionate adverse effects that are at least twice as large as a relevant comparison group.¹³ State officials would prefer an even more rigorous standard of peer-reviewed scientific proof to establish a Title VI violation and complaint that the Agency retains too much discretion in deciding what is an adverse disparate impact.¹⁴ A more stringent standard of proof would likely reduce the number of Title VI complaints. Conversely, environmental justice advocates argue that requiring clear scientific proof of harm is inappropriate in light of the great uncertainties about the risks of many chemicals. Instead, they argue that the Agency should consider any plausible evidence of harm to minority groups.

State and industry representatives are cautiously pleased that the Revised Investigation Guidance limits the scope of investigations to areas where the recipient has legal authority.¹⁵ Furthermore, even if EPA finds that a recipient has caused adverse disparate impacts and is not in compliance with Title VI, the Agency will probably not require the revocation of the disputed permit.¹⁶ Instead, the guidance emphasize voluntary compliance efforts by recipients to reduce pollution and disparate impacts. However, state officials are concerned that EPA has too much discretion in defining key terms such as "affected population" and "comparison population."¹⁷

Environmental and civil rights groups are generally disappointed with both draft guidances and especially with the Revised Investigation Guidance. First, even if EPA accepts a complaint for investigation, the Agency normally will not seek to stay the challenged permit.¹⁸ Accordingly, a permittee may be able to build and even operate a challenged facility while an investigation takes place. Second, the Revised Investigation Guidance limits a recipient's Title VI responsibilities to issues within its legal authority, and thus avoids cultural, social, or even economic impacts that transcend that authority.¹⁹ Finally, even if the OCR finds a Title VI violation, EPA generally will not suspend the permit or impose sanctions on the recipient, but instead will collaborate with the recipient to reduce adverse disparate impacts in the future.²⁰ Civil rights advocates are especially concerned that the guidances suggest that recipient efforts to reduce adverse disparate impacts may be enough to satisfy Title VI and that the Agency will not necessarily require the elimination of all such impacts. Nevertheless, the guidances do show some commitment to promoting environmental equity by emphasizing that the Agency will evaluate and seek to reduce the cumulative impacts from a number of sources in an area rather than just the impact of the challenged permit.²¹

The Agency collected public comments on the draft guidances for 60 days until August 28, 2000. EPA also conducted seven national public listening sessions in major cities to receive additional feedback on the draft guidances.²² After reviewing the public comments, EPA plans to revise the draft guidances and publish them in "final" form.²³ However, the Agency has resisted arguments that it should issue the guidances as binding "rules."

This Article critiques the two guidances. After discussing EPA's Title VI regulations, the Article examines the Interim Guidance and the Agency's next steps to address various concerns about its Title VI policies. The heart of the Article analyzes the Recipient Guidance and the Revised Investigation Guidance. Because EPA wanted to retain discretion about most important procedural and substantive issues, both guidances fail to provide the level of certainty that most stakeholders would desire. These uncertainties undermine the Agency's goals of providing guidance to recipients about how to improve their permit programs, expediting the investigation of complaints, and achieving solutions that make complaints unnecessary. While they are disappointed that both guidances fail to provide clear "safe harbor" standards that would guarantee that recipients are in compliance with the statute, states and industry are generally pleased that the Revised Investigation Guidance clarifies that a permit is not suspended during an investigation, that a recipient is only responsible for actions within its legal authority, and that the Agency prefersthat any finding of adverse disparate impacts be based on credible and statistically significant scientific evidence. Furthermore, both guidances suggest that the Agency is unlikely to find a recipient in noncompliance as long as a state or local government has made "good-faith" efforts to reduce adverse disparate impacts. On the other hand, environmental justice advocates are disappointed that the guidances do not stay a permit during its investigation, [30 ELR 11147] consider broad social impacts outside the recipient's legal authority, or fully address the limitations of scientific knowledge about the effect of cumulative pollution impacts on minority communities. Most importantly, advocates are unhappy that even if EPA makes a finding that a recipient's permit decision has caused adverse disparate impacts, the Agency will usually avoid imposing sanctions or revoking a permit if the recipient adopts an agreement to reduce those impacts. If voluntary area-specific agreements to reduce or eliminate adverse disparate impacts are the Agency's primary strategy for resolving Title VI complaints, EPA needs to establish transparent criteria for what level of reductions are sufficient to comply with the statute.

I. Background to EPA's Title VI Policy

On February 11, 1994, President Clinton issued Executive Order No. 12898, which directs all federal agencies to promote environmental justice "to the greatest extent practicable and permitted by law."²⁴ Additionally, President Clinton simultaneously published a Presidential Memorandum to accompany Executive Order No. 12898 that requires federal agencies "providing funding to programs affecting human health or the environment to ensure that their grant recipients comply with Title VI of the Civil Rights Act of 1964."²⁵ The Presidential Memorandum was significant because it alerted federal agencies that they needed to review their Title VI programs to make sure that recipients' programs or activities affecting the environment or public health were not causing intentional or disparate impacts against minority groups.

Title VI of the Civil Rights Act of 1964 forbids intentional discrimination by programs or activities receiving federal financial assistance.²⁶ Section 602 of Title VI requires federal funding agencies to adopt and enforce regulations that prohibit recipients from engaging in discrimination and that establish a process for investigating possible violations by recipients.²⁷ Since 1964, all federal agencies have consistently interpreted § 602 to prohibit recipients from engaging not only in intentional discrimination, but also in practices having discriminatory effects.²⁸ After the Civil Rights Restoration Act of 1987, Title VI and its regulations apply to "all of the operations" of a state or local government agency that receives any federal assistance.²⁹

First promulgated in 1973 and then revised in 1984, the EPA's Title VI regulations prohibit recipients of Agency funding, which include almost all state environmental agencies, from engaging in actions that either intentionally discriminate or cause disparate impacts.³⁰ Additionally, EPA's Title VI regulations require state recipients to create a compliance scheme to prevent discrimination by both the state and any beneficiaries of state-administered funds.³¹ Furthermore, the Agency's Title VI regulations define procedures for investigating possible violations by recipients.³²

Before 1993, EPA was reluctant to enforce its Title VI regulations against state or local recipients because Agency officials believed that reducing or terminating federal aid to a discriminating recipient was contrary to the Agency's main focus of providing assistance to reduce pollution or enhance the environment.³³ However, in 1993, EPA shifted its policy to more vigorous enforcement of Title VI because such an approach could further its new emphasis on promoting environmental equity.³⁴ In 1994, EPA established the OCR to address Title VI and other discrimination issues, including internal employment discrimination cases.³⁵

As of June 29, 2000, EPA had received 97 Title VI complaints.³⁶ The Agency has rejected 47 complaints. Most, 43, were rejected because the Agency lacked jurisdiction for various reasons, and 4 were dismissed after an Agency investigation had begun. Only one case—the Select Steel case, discussed below—was dismissed on the merits after an Agency investigation found no evidence of adverse disparate impacts.

[30 ELR 11148]

By June 29, 2000, EPA had a backlog of 50 pending complaints.³⁷ Of these, 29 were under review for possible investigation and 21 were accepted for investigation. Although the Agency's regulations normally require it to issue preliminary findings within 180 days from the start of an investigation, several pending accepted cases were filed in 1993 or 1994.³⁸ Since 1998, the Agency has doubled its staff resources and contract dollars to try to reduce this backlog.³⁹ ECOS has passed a resolution calling on the Agency to resolve this backlog even before the draft guidance documents are finalized.⁴⁰

II. A Brief Description of EPA's Title VI Regulations

The Agency's Title VI regulations provide a basic framework for processing Title VI complaints but do not address the difficult substantive questions relating to what is a disparate impact and do not completely answer some procedural issues. To initiate a Title VI investigation, a complainant must file a short written statement alleging that a recipient has engaged in discriminatory actions within the last 180 days.⁴¹ Within 21 days of receiving a complaint, EPA must conduct a preliminary investigation to determine such questions as whether the complaint's allegations, if true, would state an appropriate claim of discrimination, whether the Agency has jurisdiction, whether another agency might have jurisdiction, or whether the complaint is premature because the recipient is still considering whether to grant or deny a pending permit.⁴² If EPA accepts a complaint for investigation, the Agency normally seeks to resolve it through an informal settlement before conducting a formal investigation of the alleged conduct.⁴³

During an EPA investigation of a recipient, the complainant has no formal right to intervene, testify, or present evidence.⁴⁴ Informally, the Agency seeks comments from the complainant, permit applicant, and recipient about various factual issues before making a preliminary finding about the presence of disparate impacts or discrimination.⁴⁵ As discussed below, the Revised Investigation Guidance clarifies the roles of the parties in providing information during the Agency's investigation.⁴⁶

Under its Title VI regulations, EPA may terminate or reduce funding to a recipient found in violation of the statute.⁴⁷ If the Agency seeks to terminate funding, the recipient has elaborate rights to both internal Agency review and judicial review.⁴⁸ Furthermore, the Administrator of EPA must make a full report to the appropriate congressional committees and give Congress 30 days to raise objections.⁴⁹ As a result of these extensive procedural protections for recipients, EPA almost always tries to reach a settlement in which the recipient agrees to eliminate any allegedly discriminatory practices rather than terminate a recipient's funding.⁵⁰ As discussed below, the draft guidances continue EPA's practice of encouraging voluntary compliance from its recipients rather than imposing the draconian penalty of funding termination.⁵¹

By contrast, complainants have very limited rights to internal agency or judicial review under either Title VI or the Administrative Procedure Act if EPA decides to dismiss an administrative complaint for lack of evidence.⁵² However, some courts have recognized that citizens have a private right of action under § 602 of Title VI to enforce EPA's regulations even if they do not exhaust their administrative remedies with the Agency.⁵³ If they do recognize a private right of action to enforce the Agency's regulations, courts would not be bound by the Agency's Title VI guidances, which lack the generally binding effect of a properly promulgated agency rule, but the guidances might influence judicial reasoning.⁵⁴

III. Interim Guidance

In February 1998, EPA issued its Interim Guidance to help the Agency's OCR evaluate Title VI complaints. The Interim Guidance addressed the procedural process for filing [30 ELR 11149] complaints, and set forth a five-step process for assessing whether a decision causes disparate impacts.⁵⁵ If the Agency found adverse disparate impacts, the Interim Guidance provided recipients with the opportunity to justify its action by either: (1) rebutting EPA's findings; (2) mitigating any disparate impacts; or (3) showing that the benefits of the project outweigh its adverse impacts.⁵⁶

Although EPA solicited public comment for 90 days after releasing the Interim Guidance, it did not publish the guidance in the Federal Register. Many critics argued that EPA should have published the Interim Guidance in the Federal Register and some contended that it should have been issued pursuant to notice-and-comment rulemaking.⁵⁷ Despite these procedural limitations, EPA received over 120 written comments. On June 27, 2000, the Agency published in the Federal Register, along with the draft guidance, a Summary of Key Stakeholder Issues Concerning EPA Title VI Guidance that summarizes and responds to these comments.⁵⁸

A wide range of individuals and organizations agreed that the Interim Guidance was too vague in defining essential terms such as "disparate impact."⁵⁹ State officials and industry representatives were concerned that uncertainties about how EPA would implement the Interim Guidance would delay state permit decisions and discourage economic development.⁶⁰ In particular, industry representatives, state officials, and mayors worried that the Agency's uncertain standards would discourage development in minority areas because of the risk that state-issued permits could be challenged and delayed as a result.⁶¹ Additionally, states complained that the Interim Guidance did not address or suggest how recipients might avoid Title VI complaints.⁶² By contrast, most environmentalists, civil rights groups, and members of the Congressional Black Caucus maintained that EPA could adopt an expansive Title VI policy that protected the health of minority groups without sacrificing development in minority neighborhoods.⁶³

Because of the hostile reaction of industry representatives, state officials, and mayors, republicans in Congress have attached riders to the last three EPA appropriation bills that prohibit the Agency from conducting investigations using the Interim Guidance for complaints received since the date of the initial bill, October 21, 1998, until the Agency issues a final Title VI policy.⁶⁴ The legislation does not affect complaints that had already been accepted for investigation prior to that date.⁶⁵

IV. Steps After the Interim Guidance

In light of substantial public criticism of the Interim Guidance, EPA took several steps to improve and revise its methodology for assessing disparate impacts and processing Title VI complaints. For example, in 1998, EPA's Science Advisory Board (SAB) made several recommendations about improving the Agency's methodology for determining whether the issuance of a permit causes a disproportionate impact on minorities.⁶⁶

Additionally, the Agency engaged in an extensive consultation process with a wide range of state, industry, and civil rights representatives.⁶⁷ For instance, EPA met with the National League of Cities in September 1998, the National Association of Attorneys General in June 1999, and members of the Local Government Advisory Committee and Small Communities Advisory Subcommittee in September 1999.⁶⁸

In March 1998, EPA Administrator Carol Browner established a Title VI Implementation Advisory Committee in conjunction with the Agency's National Advisory Council on Policy and Technology that included Elliott Laws as [30 ELR 11150] chair and 25 representatives from a wide range of groups.⁶⁹ On March 1, 1999, the Title VI Advisory Committee issued an extensive report that identified a number of consensus principles such as encouraging early and meaningful public participation throughout state decisionmaking processes,⁷⁰ using informal resolution techniques to avoid disputes, and promoting research concerning the cumulative harm of multiple chemicals.⁷¹ However, the Title VI Advisory Committee could not reach agreement on the central issue of what constitutes unacceptable disparate impacts.⁷² Nevertheless, both guidances, especially the Recipient Guidance, rely heavily on the work of the Title VI Advisory Committee.⁷³ In particular, the report of the Title VI Advisory Committee strongly influenced the discussion of mitigation issues.⁷⁴ However, environmental justice advocates complain that EPA failed to address the substantive questions posed by the workgroup and declined to adopt their recommendation that mitigation be closely tailored to any impacts.

V. The Shintech and Select Steel Cases

Initially, the intense controversy generated by the Interim Guidance seemed to make EPA very reluctant to decide its pending Title VI complaints. During the spring and summer of 1998, EPA repeatedly delayed deciding a Title VI complaint involving Shintech's proposed $ 700 million plastics facility in a predominantly African American area of St. James Parish, Louisiana, because there was strong disagreement about how to measure the total cumulative amount of pollution and the relevant demographic comparison groups.⁷⁵ The Agency never decided the Title VI complaint, but it did find a flaw in the state air permit for the proposed facility.⁷⁶ To avoid further delays, Shintech canceled the project and decided to build a smaller facility in a more integrated community.⁷⁷ Ironically, EPA in its draft guidance refers to the statistical analyses it performed in the Shintech case as a model for the future.⁷⁸

In November 1998, EPA for the first and so far only time decided a Title VI complaint on the merits. It rejected a complaint challenging Select Steel's proposed construction of a steel plant in Flint, Michigan, because the facility was in compliance with the Clean Air Act's (CAA's) health-based national ambient airquality standards (NAAQS) for ozone and lead.⁷⁹ In its Select Steel decision, EPA stated that unless the complainant could present evidence that the standards were insufficient to protect a particular minority in a specific area, a recipient's compliance with the Agency's health-based NAAQS created a presumption that there were no significant adverse effects to minority groups.⁸⁰ As discussed below, the Revised Investigation Guidance implicitly adopts Select Steel's approach that NAAQS are generally protective of human health and that a recipient is presumptively in compliance with Title VI if it meets them unless a minority group can show that the national standards fail to protect them in a particular case. State officials argue that the Agency should explicitly adopt Select Steel's approach as precedent for future cases.⁸¹

VI. The Two Draft Guidances

The two draft guidances, the Revised Investigation Guidance and the Recipient Guidance, were written in conjunction with each other, use a common glossary of terms, and share common goals that the Agency derived, in part, from the consensus principles identified by the Title VI Advisory Committee.⁸² The Recipient Guidance provides a series of [30 ELR 11151] alternative strategies for achieving compliance and minimizing complaints under the Revised Investigation Guidance. By providing more detailed standards and procedures than the Interim Guidance, the Revised Investigation Guidance attempts to give recipients a better idea of both what they should and should not do.⁸³ However, while the draft guidances provide more clarity than the Interim Guidance, a wide range of critics argue that EPA must provide more precise definitions and firm standards applicable in every case.

VII. The Recipient Guidance

The Recipient Guidance complements the Revised Investigation Guidance by suggesting voluntary approaches that recipients may adopt to avoid Title VI complaints altogether or to reduce the likelihood that the Agency will find a violation.⁸⁴ The Recipient Guidance is somewhat broader and more flexible than the Revised Investigation Guidance because it provides a framework to improve recipients' existing programs or activities. The Recipient Guidance seeks to reduce the number of Title VI complaints alleging either discriminatory impacts from permit decisions or discrimination in public participation processes associated with permitting.⁸⁵ The Recipient Guidance was written by EPA at the request of state and local recipients seeking to develop programs that would assure their compliance with Title VI.⁸⁶ However, the Recipient Guidance does not provide a guaranteed answer for avoiding Title VI complaints, but rather suggests a number of possible strategies for minimizing the chances of a complaint and reducing any possible sanctions for unintentional noncompliance. Many state officials are unhappy that the Recipient Guidance fails to offer clear rules that will automatically bring recipients into compliance with the statute and leaves considerable discretion in the hands of the OCR. Because of these uncertainties, the Recipient Guidance may fail to achieve its stated goals of helping recipients to improve their programs, facilitating the investigation of existing complaints, and eliminating any adverse disparate impacts that would otherwise lead to future Title VI complaints.

A. Title VI Approaches

After extensive consultation with a wide range of state and local officials, EPA contends that there is not a single "one-size-fits-all" way to address Title VI issues because recipients vary widely in their organizational structures, resources, and types of permits that they issue.⁸⁷ The Recipient Guidance offers a range of possible approaches and techniques to avoid potential Title VI problems, but also encourages recipients to develop other appropriate methods.⁸⁸ In section II.A, the Recipient Guidance describes three general approaches recipients could adopt to identify and resolve the type of issues that are most likely to lead to Title VI complaints: (1) a Comprehensive Approach; (2) an Area-Specific Approach; and (3) a Case-by-Case Approach.⁸⁹

1. A Comprehensive Approach

EPA suggested that recipients consider adopting a comprehensive approach that includes all or most of the ways of enhancing Title VI actions described in the Recipient Guidance.⁹⁰ For example, section II.B describes seven steps a recipient may take to improve its Title VI programs. EPA stated that it expected that "such comprehensive approaches will offer recipients the greatest likelihood of adequately addressing Title VI concerns, thereby minimizing the likelihood of complaints."⁹¹

State officials are unhappy that a recipient's compliance with most or all of these steps does not guarantee conformity with Title VI.⁹² They would prefer a "safe harbor" system in which EPA would automatically reject a complaint if a state or local recipient's Title VI program achieves explicit substantive and procedural criteria. They are also concerned with the cost of complying with these steps. While technically "voluntary," many state officials believe that the Agency will pressure them to follow the recommended steps and, hence, that the steps constitute an "unfunded" mandate that will impose heavy financial burdens on states unless the federal government provides funding.

2. An Area-Specific Approach

Another possible way to reduce Title VI complaints is for recipients to adopt an area-specific approach in which they identify geographic areas where adverse disparate impacts may exist and then create an "area-specific" plan to reduce or eliminate pollutantsthat are causing those harms.⁹³ First, the Recipient Guidance emphasizes the need to collaborate with communities and other appropriate stakeholders to develop the relevant criteria to identify geographic areas where adverse disparate impacts may exist.⁹⁴ Furthermore, after identifying high-risk geographic areas, recipients are encouraged to work with these affected communities and other appropriate stakeholders to reduce and eliminate adverse disparate impacts or other issues that raise Title VI concerns.⁹⁵ For example, a recipient could create a comprehensive and multifaceted plan to reduce a wide range of lead sources that affect a particular minority community, which is discussed in more detail below.⁹⁶ EPA encouraged recipients to consider plans that address adverse disparate impacts in several media: air, water, and land.⁹⁷ However, EPA is likely to give less weight to a plan if it simply fulfills preexisting obligations under a statute, such as "reasonable further progress" under CAA § 171(1), and more weight to voluntary plans that go beyond minimum requirements to reduce or avoid adverse disparate impacts.⁹⁸

[30 ELR 11152]

State and industry officials are concerned that the Agency's promise to give "due weight" to area-specific plans does not guarantee that they will be in compliance with Title VI. On the other hand, environmental justice advocates are disturbed that these plans may not fully rectify all adverse disparate impacts. As discussed below, the Agency needs to clarify how area-specific plans work.

3. A Case-by-Case Approach

Another possible strategy is for recipients to adopt a case-by-case methodology or permit-specific approach in which a recipient develops criteria to assess which types of permit actions have the greatest potential to raise Title VI problems.⁹⁹ Additionally, a recipient might focus on cases where initial public comment suggests that adverse disparate impacts are likely.¹⁰⁰ Alternatively, a recipient could use alternative dispute resolution (ADR) techniques to resolve actual conflicts.¹⁰¹

B. Title VI Activities

Section II.B of the Recipient Guidance suggests that recipients consider adopting seven specific activities to avoid Title VI problems in their permitting programs: (1) improving staff training; (2) encouraging effective and early public participation and outreach; (3) conducting adverse impact and demographic analyses; (4) encouraging intergovernmental involvement; (5) participating in ADR; (6) reducing or eliminating alleged disparate impacts; and (7) evaluating the progress of Title VI activities and identifying areas in need of improvement.¹⁰² The Recipient Guidance implies that the Agency will consider these seven activities in determining whether a recipient is in compliance with Title VI or in assessing sanctions if a violation does occur, but it does not specify how much weight each step will count toward compliance with Title VI.

1. Staff Training

The Recipient Guidance suggests several ways recipients can improve their staff training in Title VI responsibilities to reduce the likelihood of complaints. An effective staff training program could include instruction in the following areas: (1) a review of the recipient's Title VI responsibilities, its Title VI programs, and its environmental permitting programs; (2) a program of cultural and community relations sensitization designed to create greater trust between the recipient's staff and the diverse communities it serves; (3) training in skills that enhance the recipient's staff ability to communicate effectively with these diverse communities; (4) training in risk assessment, exposure measurement, cumulative impact assessment, and demographic analysis techniques that will enable the staff to conduct disparate impact analyses; and (5) training in ADR techniques that will help staff to resolve Title VI concerns.¹⁰³

2. Effective Public Participation and Outreach

The Title VI Advisory Committee reached a consensus that states should encourage early, inclusive, and meaningful public participation throughout their decisionmaking processes to avoid Title VI complaints.¹⁰⁴ Early involvement by a diverse range of stakeholders can often avert problems because participants can suggest modifications during the planning of proposed projects that prevent adverse disparate impacts and increase their benefits to affected communities. Accordingly, the Recipient Guidance strongly endorses the goals of early, inclusive, and meaningful participation as a way to reduce the number of Title VI complaints.¹⁰⁵

Furthermore, despite the fact that the Recipient Guidance is supposed to be voluntary and does not bind recipients, EPA added a "stick" to the issue of whether a recipient has an effective public participation process by stating that discrimination in procedural processes alone, including public participation practices, may be enough to establish a Title VI violation.¹⁰⁶ Thus, recipients have an incentive to develop effective public participation processes both because of its potential benefits in developing public support for projects and to avoid committing discrimination in violation of Title VI.

In particular, the Recipient Guidance provides a number of criteria for evaluating whether a recipient has an effective public participation process. It encourages recipients to reach as broad a spectrum of the population as possible and to involve them meaningfully early in the public participation process. Recipients can improve their process by: including the public during the pre-permitting process, as well as during the permitting process, if possible, so that a community can have more effective influence on the scope and design of a proposal; including community participants that represent a wide range of views; using nontraditional ways of outreach such as inserting information with utility bills, placing public service announcements in local media, or posting notices on bulletin boards in public and private buildings; and scheduling meetings at times and places that are convenient for residents who work, those who use public transportation, and the disabled.¹⁰⁷ Additionally, the Recipient Guidance recommends that recipients foster a "meaningful" public participation process by using open and transparent procedures, providing understandable information necessary for effective community participation, including disseminating documents in languages other than English where there are significant populations whose primary language is not English, and offering clear explanations for their permit decisions.¹⁰⁸ The Recipient Guidance warns [30 ELR 11153] that a recipient's failure to take reasonable steps to reach limited English speaking individuals may constitute discrimination under Title VI.¹⁰⁹ In addition, after the draft guidances were published, EPA's Office of Solid Waste and Emergency Response published Public Involvement in Environmental Permits: A Reference Guide, which may provide further assistance to recipients.¹¹⁰

Despite the Agency's best efforts, a wide range of commenters are concerned by the Recipient Guidance's vague definition of "meaningful" participation. States would prefer automatic deference from the Agency as long as a recipient follows certain guidelines for including public participation. On the other hand, environmental justice advocates would like to see a more rigorous review of whether members of the poor and minority groups have an effective opportunity to participate in the early and more meaningful stages of the decisionmaking process.¹¹¹ It is not easy to provide guidelines for public participation that guarantee meaningful participation because different substantive issues raise different types of public participation questions, and what works in one community may not work in another.

3. Conducting Adverse Impact and Demographic Analyses

The Recipient Guidance discusses how recipients can conduct adverse impact and demographic analyses and then use them as a tool to identify and address potential problem areas where there may be disparities on the basis of race, color, or national origin.¹¹² The first step is to collect demographic and pollution data. The Recipient Guidance lists a wide range of websites that contain data sources and tools for such analyses.¹¹³ However, these sources may be incomplete and address only certain categories of demographic or pollution data.¹¹⁴ Accordingly, the Recipient Guidance emphasizes that recipients should examine data from a wide range of sources and carefully assess its accuracy and relevance.¹¹⁵ Furthermore, the recipient should consider the need to collect additional local data if existing sources are inadequate.¹¹⁶

The Recipient Guidance provides a short but important discussion of how recipients might conduct an adverse disparate impact analysis to identify areas of concern where there may be disparities on the basis of race, color, or national origin.¹¹⁷ It refers recipients to section VI of the Revised Investigation Guidance for a detailed discussion of several steps for conducting a thorough adverse disparate impact analysis.¹¹⁸ In some cases, a recipient may be able to use a less sophisticated and cheaper approach to identify potential high-risk areas than would be otherwise required to make an actual determination of whether disparate impacts exist.¹¹⁹ For example, because ambient risks are often directly proportional to the amount and toxicity of pollutants released, a recipient may identify potential high-risk areas based solely on releases without conducting a more detailed risk assessment.¹²⁰

While compliance with existing environmental standards does not guarantee that a recipient is in compliance with Title VI, the Recipient Guidance suggests that recipients begin their assessment of the significance of impacts in light of health and risk standards used in existing environmental statutes and regulations.¹²¹ If these impacts exceed current legal standards, then the OCR would likely treat them as adverse under Title VI.¹²² However, in considering cumulative risks from multiple sources of pollution, the Recipient Guidance recognizes that existing laws may not adequately address such risks and, therefore, recipients may need to evaluate whether any scientific or technical information suggests that these impacts may be significantly adverse.¹²³

Finally, a recipient should consider conducting a disparity analysis that compares the affected population to an appropriate comparison population.¹²⁴ Section VI of the Revised Investigation Guidance contains a full discussion of different approaches for conducting disparity analyses.¹²⁵

While the Recipient Guidance seeks to minimize the complexity of conducting an adverse disparate impact analysis, EPA's approach to such analyses remains complex and potentially costly for states.¹²⁶ There is some disagreement about whether less sophisticated methods such as using public health statistics alone are sufficient to identify high-risk populations.¹²⁷ For example, the Public Interest Law Center of Philadelphia has proposed the use of public health data to identify the worst census tracts.¹²⁸ However, in its Summary of Key Stakeholder Issues Concerning EPA [30 ELR 11154] Title VI Guidance, EPA responded that while this approach might identify public health "hot spots," it fails to address whether there was a link between the recipient's actions and the adverse health effects or whether there was any disparity on the basis of race, color, or national origin.¹²⁹ Thus, the Agency implied that a recipient needs to at least consider the more complex disparity analyses discussed in the Revised Investigation Guidance.

4. Encouraging Intergovernmental Involvement

The Recipient Guidance suggests that recipients consider collaborating with other government agencies in developing strategies to reduce adverse disparate impacts.¹³⁰ This is especially true if the recipient does not have jurisdiction over some crucial issues. For example, a state environmental agency may not have authority over zoning or traffic issues. The Recipient Guidance encourages early efforts to consult with other agencies because there is a greater chance to achieve consensus while more options are still open at the beginning of a decisionmaking process.¹³¹ While collaboration is a good idea, state officials point out that the draft guidances fail to address the problem of whether other laws, programs, or policies, especially local land use regulations or ordinances, may conflict with or limit the legal authority of recipients to take actions that promote environmental equity.¹³²

5. Promoting ADR Techniques

Because the resolution of Title VI claims is often lengthy and expensive, the Recipient Guidance encourages recipients to use ADR techniques to avoid potential conflicts.¹³³ According to EPA, recipients are most likely to be successful with ADR if they develop a process that is acceptable to both affected communities and permit applicants. An experienced third party (a "neutral") can assist recipients in developing acceptable procedures. Additionally, the Recipient Guidance suggests that recipients combine the ADR process with early, inclusive, and meaningful public participation. There are several possible approaches including: (1) facilitated dialogue between relevant parties that is assisted by a third-party neutral; (2) consensus-building through structured processes designed to bring parties together; or (3) mediation with a third-party neutral.¹³⁴

Some civil rights advocates have questioned whether ADR procedures adequately protect poor minorities who may lack the expertise and resources to bargain effectively with recipients and, indirectly, with permit applicants that have far greater resources.¹³⁵ For example, a mediator may not be able to address the differences in resources between parties and create a level playing field.¹³⁶ These inequalities are especially likely to result in unfair agreements because the confidential nature of most ADR negotiations usually prevents public comment until after a deal is reached.¹³⁷ Accordingly, these critics are concerned that EPA's push to resolve as many complaints as possible by using ADR techniques may harm minority interests. On the other hand, state officials are concerned that informal resolution techniques will not only be expensive and time consuming, but may not achieve success.¹³⁸

6. Reduce or Eliminate Alleged Adverse Disparate Impact

The Recipient Guidance strongly encourages recipients to reduce or eliminate alleged adverse disparate impacts, especially those that cause disparities on the basis of race, color, or national origin.¹³⁹ Because Title VI complaints often reflect broad dissatisfaction with a series of permit decisions rather than just the one at issue, the Agency argued that recipients should look beyond individual permits and instead develop cooperative efforts with affected communities to reduce disparities wherever possible. The Recipient Guidance suggests a series of remedial measures that may reduce or eliminate alleged disparate impacts including: pollution prevention; environmental remediation of existing contaminants; emission offsets or caps in geographic areas of concern; developing better emergency planning and response measures; and measures to achieve and promote more equitable monitoring and enforcement by the recipient.¹⁴⁰ Section IV.B of the Revised Investigation Guidance discusses these measures in more detail.

A wide range of commenters are concerned about the lack of clarity with respect to how much of a reduction is required. Many environmental justice advocates believe that Title VI requires recipients to eliminate all significant adverse disparate impacts.

Additionally, environmentalists are concerned that the guidances' vague language about remedial efforts or mitigation will allow recipients to adopt off-site mitigation measures that do not reduce impacts at the specific site where adverse impacts are affecting a community.¹⁴¹ Instead, EPA should require that remedial or mitigative measures directly address the same type of adverse impacts in the same geographical area.

7. Evaluating Title VI Activities

Finally, the Recipient Guidanceencourages recipients to evaluate their current Title VI policies and activities to identify [30 ELR 11155] areas in need of improvement.¹⁴² For instance, a recipient could collect and analyze feedback from communities and businesses about its public participation program. The Agency suggested that recipients carefully consider the quality of the information when they evaluate feedback about their programs.

C. Due Weight: EPA Will Not Give Complete Deference to State Environmental Justice Programs

In section II.C of the Recipient Guidance, EPA provides an initial discussion of how much "due weight" the Agency will give to proactive efforts by recipients to reduce or eliminate pollution or to assure effective public participation. Section V.B of the Revised Investigation Guidance provides further explanation of under what circumstances EPA will give "due weight" to either information submitted by the recipient and to area-specific agreements.¹⁴³ However, if a recipient implements proactive public participation or pollution reduction measures, a difficult question arises: how much credit or deference should EPA give to the recipient? This was a contentious issue for EPA's Title VI Advisory Committee. State and industry members of the Title VI Advisory Committee argued that EPA should defer to state decisions that include proactive public participation efforts or efforts to reduce pollution in minority areas, but civil rights advocates contended that the Agency may not abdicate its responsibility for ensuring that recipients protect minority groups from discrimination.¹⁴⁴ In 1999, EPA initially suggested that it favored giving greater deference to states with programs designed to enhance public participation or reduce disparate impacts, but that suggestion was strongly criticized by civil rights groups.¹⁴⁵

In the draft guidances, the Agency concluded that Title VI requires the Agency to assure compliance with the statute and, therefore, the Agency may not completely defer to a recipient's own assessment of whether it has violated the civil rights of minority groups protected by the statute.¹⁴⁶ However, in evaluating Title VI complaints, the Agency stated that it would give "due weight" to a recipient's efforts to reduce discrimination and would carefully consider evidence or information submitted by a recipient in deciding whether a permit decision causes disparate impacts.¹⁴⁷ While recipients might submit a wide range of relevant information, the Agency expects that such evidence "should at a minimum generally conform to accepted scientific approaches."¹⁴⁸ In determining whether a recipient's efforts bring it into compliance with Title VI, the Agency will evaluate the appropriateness of the recipient's proposed or implemented solutions.¹⁴⁹

In particular, the Recipient Guidance encourages recipients to identify geographic areas where adverse disparate impacts may exist and to enter into agreements with residents and polluters to reduce pollution and disparities.¹⁵⁰ To create a successful areawide agreement that is likely to receive deference from EPA, the recipient should encourage collaboration with communities and other appropriate stakeholders, including permittees.¹⁵¹ If a recipient meets the criteria for area-specific agreements set forth in the Revised Investigation Guidance, then EPA will likely give the results of that agreement "due weight" and rely on it to the extent warranted in determining whether or not the recipient is in compliance with the Agency's Title VI regulations.¹⁵² The amount of deference that EPA will give to an area-specific plan depends on the persuasiveness of the recipient's evidence that the plan will in fact eliminate or reduce adverse disparate impacts.¹⁵³

A wide range of commenters are critical of the Agency's failure to define the term "due weight" and its decision to retain ultimate discretion over what type of recipient efforts are acceptable. First, it is not clear how much a recipient must do to receive "due weight" from EPA. Second, it is unclear what effect a finding of "due weight" by the Agency will have on the ultimate decision of whether the recipient is in compliance with Title VI. Does a finding of "due weight" simply constitute favorable evidence for a recipient, a rebuttable presumption of innocence, or an absolute finding of compliance?¹⁵⁴

Environmental justice advocates are concerned that area-specific plans will not fully address all disparate impacts in an area because the guidance appear to allow plans that merely "reduce" rather than eliminate all significant disparate impacts.¹⁵⁵ Some civil rights proponents argue that any area-specific plan should be adopted only after public notice and an opportunity for comment.¹⁵⁶ [30 ELR 11156] Furthermore, they are concerned that the guidances do not clearly address how EPA will ensure that recipients comply with such agreements or modify them to address changing conditions.¹⁵⁷

On the other hand, state officials are concerned that EPA does not provide a "safe harbor" guarantee that an area-specific plan will protect a recipient from Title VI liability, and instead only offers vague assurance that such plans will receive "due weight" from the Agency.¹⁵⁸ Additionally, the Agency's discussion of area-specific agreements implies that local governments will participate in these plans, but the guidances fail to explain the role of local governments or whether local governments have the legal authority to enforce these plans.¹⁵⁹

The Recipient Guidance also states that the Agency is likely to give "due weight" to recipients that develop a "non-discriminatory public participation process" and dismiss allegations of discriminatory public participation if a recipient meets certain criteria for a nondiscriminatory public participation process.¹⁶⁰ Step Two of the Recipient Guidance includes a number of specific suggestions for developing effective public participation programs.¹⁶¹ If a recipient follows most of the suggestions in Step Two, it is likely that the OCR will find that the recipient has a nondiscriminatory public participation process. Additionally, EPA has developed public participation guidelines for its Brownfields Assessment Demonstration Projects that emphasize community-based planning and involvement that could serve as a model for recipients in developing an effective public participation process.¹⁶² Nevertheless, while a recipient that follows these steps is presumed to be in compliance with Title VI, a complainant could still present allegations that a recipient's public participation program in fact failed to provide reasonable opportunities for minority participation or is improperly implemented.¹⁶³

While the Agency clearly encourages recipients to develop effective public participation programs, the Agency's criteria on whether to give due weight to a recipient's public participation efforts are vague.¹⁶⁴ For example, while EPA encourages recipients to collaborate with residents in developing area-specific plans, it is not clear how the extent of public participation will affect the due weight determination. Furthermore, it is not clear how the OCR's finding that a recipient's public participation process deserves "due weight" will affect EPA's ultimate decision about whether the recipient is in compliance with Title VI. It is possible to imagine that a recipient could have a good public participation program and still make permit decisions that create unacceptable adverse disparate impacts.¹⁶⁵

VIII. The Revised Investigation Guidance

In the light of numerous public comments criticizing the Interim Guidance, the Revised Investigation Guidance seeks to clarify how the Agency will process and investigate complaints alleging discriminatory effects from environmental permitting.¹⁶⁶ Additionally, the Revised Investigation Guidance discusses tools that the Agency will use in determining whether a permit decision creates unacceptable adverse impacts, and how the Agency will weigh efforts by the recipient to reduce or eliminate adverse disparate impacts.¹⁶⁷ However, a wide range of critics argue that the new guidelines are still too vague and leave far too many decisions to the Agency's discretion.

The Revised Investigation Guidanceaddresses only how the Agency will evaluate Title VI complaints alleging adverse disparate impacts from permitting decisions. It does not deal with complaints alleging unequal enforcement of environmental laws or other types of discrimination by a recipient. Nor does it discuss complaints that allege intentional discrimination. In addition, the Agency will issue separate guidance on the unique problems associated with federally recognized Indian tribes.¹⁶⁸ Some environmental justice advocates are disappointed that the Revised Investigation Guidance is limited to permitting issues, and argue that the Revised Investigation Guidance should be applied to other areas, such as allegations of discriminatory enforcement.¹⁶⁹

When its 60-day comment period expires and EPA issues a final version, the Revised Investigation Guidance will replace the Interim Guidance. EPA emphasized that the Revised Investigation Guidance is intended solely as guidance for the OCR and does not create any binding rights, but clearly recipients would be ill-advised to ignore its definitions or process for evaluating complaints.¹⁷⁰

Additionally, while Title VI does not apply to EPA because it is a federal agency and not a recipient of federal financial assistance, the Agency pledged to comply with the statute and the Agency's regulations.¹⁷¹ However, any suit against EPA alleging discriminatory practices would likely have to be brought under the Equal Protection Clause, [30 ELR 11157] which requires proof of intentional discrimination—a very difficult standard for plaintiffs to meet.¹⁷²

A. Framework for Processing Complaints

1. Summary of Steps

The Revised Investigation Guidance summarizes the steps that the OCR will take in processing a Title VI complaint.¹⁷³ These steps follow the Agency's Title VI implementing regulations, but often provide more details. Based on its past history of consistently failing to investigate Title VI cases in a timely fashion, a major potential problem is that EPA will not in fact meet its own deadlines.¹⁷⁴ EPA claims to be working to reduce these delays and eliminate its backlog, but only time will tell if it will be successful.

[] § 1-2. Acknowledgment of Complaint; Acceptance for Investigation, Rejection, or Referral. The OCR will acknowledge receipt of the complaint by notifying the complainant and the recipient in writing within five calendar days.¹⁷⁵ Business interests argue that the permittee should be notified as well.¹⁷⁶ Within 30 days of receiving notice, the recipient may respond in writing to the allegations in the complaint. Environmental justice advocates complain that the Agency frequently extends this deadline and accepts responses from recipients months later but often rigidly applies deadlines to complainants.¹⁷⁷

EPA will determine whether to accept each allegation in a complaint for investigation within 20 days of acknowledgment of its receipt. In determining whether to accept or reject a complaint for investigation, EPA relies on the jurisdictional criteria in its Title VI implementing regulations, which are discussed in section III.A of the guidance.¹⁷⁸ The OCR will refer a complaint to another agency if it has a better claim to jurisdiction.¹⁷⁹

The OCR may ask a complainant to clarify an allegation if it is unclear or the Agency lacks sufficient information to determine if jurisdiction exists. In the past, according to civil rights advocates, the Agency did not always ask for such clarification and sometimes simply dismissed complaints without giving the complainant a chance to clarify or amend a complaint.¹⁸⁰ By asking for clarification, the Agency will likely increase the odds that a complainant who lacks legal or technical expertise will have a reasonable opportunity to present its allegations.

The acceptance of a complaint does not mean that the Agency believes that the recipient has committed a violation, but merely indicates that the Agency has jurisdiction.¹⁸¹ Both state and industry representatives have argued that EPA should set a threshold based on whether a complaint has some substantive merit before initiating an investigation to avoid wasting the resources of recipients by investigating complaints with little merit.¹⁸² However, the Agency implies that it has a duty under Title VI to investigate any coherent complaint where there is jurisdiction, and that it is only after an investigation that the Agency should decide whether the complaint is meritorious.

During an investigation, any permits issued by the recipient remain in effect. The Revised Investigation Guidance clarifies that neither the filing of a complaint nor the acceptance of one for investigation by the OCR stays the permit challenged in the complaint.¹⁸³ EPA indicates that it is inappropriate to automatically suspend a challenged permit because individual permits are rarely the sole cause of adverse disparate impacts and the optimal solution to reduce such impacts is often a broader reform of the recipient's practices rather than termination of the permit.¹⁸⁴ State and industry representatives have praised EPA for making it clear that a Title VI complaint does not stay a permit application because they were concerned that a stay policy could delay projects for an extended period, especially if the Agency failed to complete its investigation within 180 days.¹⁸⁵ On the other hand, civil rights proponents generally believe that permits should be suspended pending the outcome of a Title VI investigation.¹⁸⁶ If a project is substantially completed during the course of an investigation, EPA is unlikely to prohibit its operation.

The Revised Investigation Guidance also fixes some technical problems in the Interim Guidance's discussion of the acceptance of complaints. The Interim Guidance's discussion of the acceptance of complaints was confusing because it skipped some of the steps in the Agency's Title VI regulations and lead some commenters to believe that EPA had dropped those steps and time frames.¹⁸⁷ The Revised Investigation Guidance clarifies that all of the steps and time lines in the Agency's Title VI regulations are still valid.¹⁸⁸ [30 ELR 11158] The Revised Investigation Guidance eliminates the Interim Guidance's reference to a "complete or properly pleaded complaint" because the definition of those terms was unnecessarily confusing.¹⁸⁹

[] § 3.-7. Preliminary Finding of Noncompliance; Formal Finding of Noncompliance; Voluntary Compliance; Hearing/Appeal Process. If there is jurisdiction, the OCR will first seek to informally resolve the complaint before beginning an investigation.¹⁹⁰ The OCR encourages informal resolution of Title VI complaints because "informal resolution will often lead to the most expeditious and effective outcome for all parties."¹⁹¹ One unanswered question, however, is how long the Agency may take in pursuing informal resolution before initiating an investigation? The 180-day clock for completing an investigation apparently does not start until after efforts for informal resolution fail, and, therefore, these efforts could extend the time for completing an investigation.¹⁹²

If informal resolution fails, the OCR will promptly investigate the complaint to determine if there are adverse disparate impacts to persons based on race, color, or national origin. Within 180 calendar days, the OCR will notify the recipient of its preliminary findings. In the past, EPA has often failed to meet the 180-day deadline for investigations, except in the Select Steel case where civil rights advocates accused the Agency of a rush to judgment.¹⁹³ In light of the OCR's past record of delays, one must remain skeptical of any claim that the Agency will meet its deadlines for completing investigations.

If the OCR finds no discriminatory effects, i.e., "no unjustified adverse disparate impact," the Agency will dismiss the complaint. Some environmental justice advocates have questioned the Agency's reference to justification at this stage.¹⁹⁴ As discussed below, Title VI cases generally allow defendants to present a legitimate justification for any disparate impacts.

In determining whether there is a violation of Title VI or the Agency's regulations, the OCR will consider whether the adverse disparate impacts result from factors within the recipient's legal authority to control. As discussed below, state officials are generally pleased that violations may not be based on factors beyond their legal control, but environmental justice advocates want a broader definition that includes socioeconomic or cultural impacts even if these issues are not technically within the recipient's legal authority.¹⁹⁵

If it concludesthat unjustified adverse disparate impacts on the basis of race, color, or national origin are present, the OCR will make a preliminary finding of noncompliance. EPA will then notify the recipient and complainants as well as Agency grant officials and the U.S. Department of Justice. The OCR will normally offer recommendations on how the recipient can achieve voluntary compliance and suggest that the recipient enter into voluntary compliance negotiations.¹⁹⁶

The recipient then has 50 days to respond to these preliminary findings. After this 50-day response period, the OCR may issue a formal written finding of noncompliance within 14 calendar days.¹⁹⁷ As discussed below, the Agency will normally seek to reach a voluntary compliance agreement with the recipient rather than imposing sanctions such as terminating funding.¹⁹⁸ And as discussed above, if the Agency seeks to terminate funding, a recipient has elaborate procedural rights to challenge a funding termination decision, and EPA must give 30 calendar days of notice to Congress before taking that action.¹⁹⁹

2. Roles of Parties and Opportunities to Participate

The Revised Investigation Guidance clarifies the Agency's Title VI regulations by explaining how the OCR will treat complainants and recipients during the investigation process. The Revised Investigation Guidance states that the OCR will work closely with recipients to ensure that the Agency has a complete record and will give the recipient "ample opportunity" to provide information that addresses the allegations in the complaint.²⁰⁰ Similarly, the Revised Investigation Guidance maintains that the OCR will offer complainants the opportunity to provide information relevant to the complaint. Furthermore, the Agency will encourage the recipient and complainants to reach an informal resolution of the issues.²⁰¹

Some environmental justice advocates have suggested that the Agency is more lenient about giving extra time to recipients.²⁰² Yet the ECOS has argued that the guidance often do not give enough time to states and that there is too much uncertainty about when the OCR will grant an extension of its time frames.²⁰³

The Revised Investigation Guidance states that EPA does not represent the complainants, but instead the interests of the federal government.²⁰⁴ The investigation of a Title VI complaint is not an adversarial process, and, thus, complainants do not have the burden of proof. The Agency will use its resources to investigate allegations of discrimination in a complaint and will determine whether a recipient is in compliance with Title VI. However, the Revised Investigation Guidance acknowledges that the Agency is more likely to conduct a thorough investigation if the complainants clearly articulate their allegations in the complaint and provide relevant information concerning alleged adverse impacts.²⁰⁵ Furthermore, because the guidance indicate that the Agency may give "due weight" to appropriate recipient analyses,²⁰⁶ [30 ELR 11159] in many cases the OCR may place an implicit burden of proof on complianants to disprove recipient evidence that suggests no disparate effects.

While the Revised Investigation Guidance does not address this issue, complainants are more likely to ensure that EPA conducts a satisfactory investigation if they have access to legal and technical resources.²⁰⁷ For example, the Tulane environmental law clinic played a major role in presenting evidence for the complainants in the Shintech case.²⁰⁸

Finally, because the investigation of a Title VI complaint is not an adversarial process between the recipient and complainants, there are no appeals rights for the complainants in the Agency's regulatory process.²⁰⁹ As discussed above, recipients have far greater appeals rights than complainants.²¹⁰ However, some courts have recognized a private right of action under Title VI's disparate impact regulations, which may offer complainants another avenue of redress if EPA dismisses a complaint.²¹¹

B. Accepting or Rejecting Complaints

1. Criteria

The OCR will investigate all administrative complaints that make clear and coherent allegations of discrimination against a recipient of EPA financial assistance and satisfy the jurisdictional criteria in EPA's implementing regulations.²¹² States are disappointed that there is not a higher standard for accepting complaints for investigation and argue that EPA should summarily dismiss complaints with a weak factual basis, but EPA is not willing to make such distinctions before completing an investigation. There are four basic jurisdictional criteria in the Agency's regulations for the OCR to accept a complaint for investigation:

(1) a complaint must be in writing²¹³

(2) it must identify a recipient of EPA funding as the entity that allegedly performed the discriminatory act²¹⁴ and must allege either an act of intentional discrimination or one that has disparate effects on the basis of race, color, or national origin in violation of the agency's Title VI regulations²¹⁵

(3) it must be filed within 180 calendar days of the alleged discriminatory act(s)²¹⁶; and

(4) it must be filed by an individual or by a member or authorized representative of a specific class of people that was allegedly discriminated against in violation of EPA's Title VI regulations.²¹⁷

If a complaint does not meet these criteria, the OCR will not initiate an investigation. If another federal agency provides such funding or is more appropriately responsible for certain issues, the OCR may refer the entire complaint or a particular allegation to that agency.²¹⁸ Additionally, the OCR might use any information submitted in a complaint that does not satisfy these criteria to determine whether to perform a compliance review of the recipient.²¹⁹ While state officials are concerned that EPA may use compliance reviews to conduct a quasi-investigation even where a complaint does not meet the Agency's jurisdictional criteria, one must be skeptical that the Agency will have time to conduct such reviews when it has a such huge backlog of pending complaints.²²⁰

State and business representatives have criticized the Revised Investigation Guidance for setting too low a threshold regarding who can file a complaint and for the acceptance of a complaint. For example, the person filing a complaint does not have to be directly impacted by the permit, but merely a member of the class of people or their representative.²²¹ Instead, state and business representatives want the Agency to limit complainants to those who are directly affected by a significant level of adverse disparate impacts. By contrast, environmental justice advocates argue that the Revised Investigation Guidance improperly limits complainants to those who are members of a specific class that was allegedly discriminated against instead of adhering to EPA's Title VI implementing regulations, which apply a broader standard that allows "[a] person who believes that he or she or a specific class of persons has been discriminated against" to file a complaint.²²²

Additionally, some critics argue that the Revised Investigation Guidance does not clearly explain when jurisdictional issues may preclude a complaint. For example, a common reason for rejecting a complaint is that EPA does not provide funding to the state or local agency, but the Revised Investigation Guidance does not clearly explain that problem.²²³

If there is jurisdiction, the OCR will seek to investigate all complaints that make coherent and plausible allegations of fact against a recipient of EPA funding.²²⁴ While recipients would like to avoid having the OCR conduct an investigation if the recipient is making good-faith efforts to reduce pollution or disparities, the OCR's threshold decision about whether to accept a complaint for investigation is based solely on the Agency's jurisdictional criteria. It is only later in the process that the Agency will decide how much weight [30 ELR 11160] to give recipient efforts and whether they are enough to outweigh otherwise unacceptable disparate impacts.²²⁵

2. Timeliness of Complaints

[] Start of the 180-Day "Clock." The Revised Investigation Guidance provides a better explanation than the Interim Guidance of how the Agency defines the 180 calendar day time limit for filing a complaint, but there are still complaints that the Agency retains too much discretion in deciding when to grant a "good cause" waiver of the time limit.²²⁶ An appropriate complainant who is a member or authorized representative of a qualified minority group must file the complaint within 180 days of the alleged acts by the recipient. For complaints challenging a permit, the complaint must be filed within 180 days of the issuance of that permit. For complaints alleging continuing violations, there must have been at least one discriminatory act within the last 180 days. For alleged procedural violations, the complaint must normally be filed within 180 days of the alleged procedural violation. The OCR considers a complaint "filed" on the date it arrives at the Agency and not when it was mailed.

Because the Revised Investigation Guidance deletes the term "final" permit as used in the Interim Guidance, some environmental justice advocates read the Revised Investigation Guidance to require a complaint to be filed within 180 days of the initial as opposed to final permit.²²⁷ They argue that the deadline should be 180 days after the issuance of a final permit as opposed to an initial permit to allow issues to be resolved within the permitting process and because the Agency in other areas generally starts the statute of limitations to run only after a final permit is issued.²²⁸

For "good cause," the OCR may waive the 180-day time limit on a case-by-case basis, especially if the delay results from the complainants exhausting their administrative remedies with the recipient.²²⁹ A wide range of commenters have criticized the Revised Investigation Guidance for failing to provide a clear explanation of when the Agency will grant a "good cause" waiver of the 180-day requirement.²³⁰

[] Ongoing Permit Appeals. The Revised Investigation Guidance encourages potential complainants to first pursue their concerns through the recipient's permit appeals process.²³¹ After a complainant exhausts its administrative remedies with the recipient, the OCR may waive the 180-day filing limit if the complaint is filed within a reasonable time, generally within 60 calendar days after the conclusion of the administrative appeal process.

Some civil rights advocates have criticized this provision because it does not guarantee that complainants will receive a waiver if they pursue a recipient's administrative appeals process. Instead, some suggest that a complainant should be entitled to file a complaint during the recipient's internal appeals process and that EPA should stay the complaint until that appeals process is resolved to ensure that a complainant's pursuit of that process does not result in its failure to meet the 180-day deadline.²³² On the other hand, business interests would prefer that EPA require complainants to first exhaust their administrative remedies with recipients, which are usually state agencies, as a way to reduce the number of Title VI complaints even though most courts have not required exhaustion of federal administrative remedies before allowing a Title VI suit.²³³

[] Litigation. If a complainant is simultaneously pursuing similar allegations of discrimination in state or federal court, the OCR will normally notify the complainant to re-file its complaint within 60 days of the conclusion of the litigation.²³⁴ If an issue raised in a Title VI complaint has already been litigated and substantively decided in either state or federal court, the Revised Investigation Guidance states that the OCR may choose not to proceed with an investigation.²³⁵ The Revised Investigation Guidance treats decisions by federal courts differently from those of state courts. The Revised Investigation Guidance implies that the OCR will probably not even investigate issues already decided by a federal court but would independently investigate questions decided by a state court to see if the court decided them correctly. If a federal court reviews the evidence presented by both parties and issues a decision finding the allegations were not true, "OCR may choose not to investigate allegations in the complaint that deal with those same issues."²³⁶ On the other hand, if a state court resolves factual issues, then OCR may consider the outcome of the court's proceedings to determine if they inform OCR's decision making process. The Revised Investigation Guidance also appears to treat federal and state courts differently in discussing what happens if a complainant brings litigation related to a complaint, but some issues are not decided by the courts. If some issues were not actually litigated or substantively decided by a federal court, or if a complaint raises unique and important legal or policy issues, the OCR may choose to investigate it.²³⁷ The Revised Investigation Guidance suggests that the Agency will not even investigate issues either actually litigated or substantially decided by a federal court unless they raise unique and important legal or policy issues, but may well investigate issues either actually litigated or substantially decided by a state court and then consider the state court's decision in reaching the Agency's final conclusion.

[30 ELR 11161]

EPA's policy of treating federal court decisions with more deference makes sense because federal courts generally have far more experience with addressing Title VI and related civil rights issues than most state courts.²³⁸ However, some environmental justice proponents believe that EPA ought to make an independent examination of a complaint even if a federal court has rejected a suit based on related facts and issues because the Agency has a duty under Title VI to make its own evaluation of its recipients under Title VI.²³⁹

[] Premature Complaints. EPA will not accept a Title VI complaint before a state issues a permit.²⁴⁰ The Agency will normally dismiss a complaint without prejudice if it is premature because the permit at issue has not yet been issued by the recipient.²⁴¹ The complainant may then re-file its complaint if the permit is actually issued. EPA will notify the recipient that a premature complaint was filed so it may address any concerns during its permitting process. This is consistent with the Recipient Guidance's central philosophy of encouraging recipients to solve or avoid problems before they become the subject of a Title VI complaint. However, some environmental justice advocates would prefer that the Agency accept a complaint even before a pending permit is granted and begin its investigation as soon as possible if it is likely that the recipient will issue a permit.²⁴² If EPA dismisses a premature complaint, the complainant must be careful to re-file the complaint within the 180-day time limit.

C. Resolving Complaints

1. Reaching Informal Resolution

EPA's Title VI regulations encourage the Agency to seek informal resolution of administrative complaints whenever practicable.²⁴³ The Revised Investigation Guidance provides a more detailed discussion of how recipients might attempt to resolve a complaint than the Interim Guidance. Section IV.A encourages recipients to informally resolve Title VI complaints with either the complainants or the OCR.

First, the Agency encourages the recipients and complainants to resolve the issues themselves. If they reach an agreement, the OCR will normally dismiss the complaint. They may wish to consider using ADR techniques, including mediation by a third-party neutral or a structured shared learning and problem-solving process.

However, civil rights advocates have raised concerns that informal resolution techniques may fail to protect poor minorities that lack the resources and expertise to bargain effectively.²⁴⁴ These inequities are exacerbated because mediation is typically conducted through confidential negotiations that exclude the opportunity for public scrutiny or comment that couldcounterbalance the greater resources and expertise of recipients and permit applicants.²⁴⁵

Conversely, state officials worry that the use of informal resolution techniques will require significant resources without necessarily achieving better results.²⁴⁶ Furthermore, business interests are concerned that EPA will pressure states to reach informal settlements to dispose of complaints, but that permittees will often bear the cost of those settlements.²⁴⁷ Instead, states and business interests want EPA to screen out meritless claims so that there is no pressure to settle them, but the Agency is unwilling to screen out cases before conducting a full investigation.²⁴⁸

A second approach is for the OCR to reach an agreement with the recipient.²⁴⁹ In appropriate cases, the OCR may use ADR techniques. There is a difference between an informal resolution reached by the parties alone and the second approach, where the OCR is involved in the informal resolution of a complaint. Because of the Agency's responsibilities under Title VI, the Agency may need to conduct an investigation to make sure that any informal resolution between it and the recipient includes appropriate relief or corrective action needed to reduce or eliminate adverse disparate impacts. Accordingly, if it wishes to avoid the possibility of an investigation, a recipient should try to reach an informal resolution with the complainant first before negotiating with the OCR.

2. Implementing Informal Resolutions

To reach an informal resolution agreement, section IV.B recommends that recipients consider taking measures to reduce or eliminate adverse disparate impacts that harm minority communities.²⁵⁰ In many cases, the Agency argues that it will not be necessary for a recipient to deny the permit at issue to solve the discrimination problem because the Agency believes that Title VI complaints often reflect broader concerns about pollution than just the permit named in the complaint. Accordingly, a recipient should consider ways to reduce the cumulative pollution impact of its permitting decisions as the most likely way to resolve the actual complaint.²⁵¹ Additionally, the Recipient Guidance recognizes that such measures may often resolve concerns in minority communities before a complaint is filed.²⁵²

The Revised Investigation Guidance suggests that recipients consider the use of broader pollution reduction measures that are outside the normal permitting process to reduce or eliminate adverse disparate impacts and thereby achieve compliance with Title VI.²⁵³ For example, the recipient could impose additional pollution controls on the source at issue, encourage the permittee or other permittees to use pollution prevention techniques, or use emissions off-sets from other sources to avoid objectionable levels of pollution.²⁵⁴ [30 ELR 11162] Both draft guidances offer the example of a hypothetical recipient that creates a plan to reduce airborne lead emissions from the facility at issue as well as other facilities and also works with other agencies to establish a household lead abatement program that further reduces the facility's impact.²⁵⁵

Both draft guidances encourage recipients to identify geographic areas where disparate impacts may exist and to enter into area-specific agreements with the affected communities and polluters to reduce pollution impacts over a period of time.²⁵⁶ Similarly, EPA's Title VI Advisory Committee had encouraged states to adopt preventative "Track 1" mapping programs to identify areas at high risk.²⁵⁷ The Revised Investigation Guidance observes that, while a recipient may develop such a plan on its own, the Agency believes that informal resolution will be more successful if recipients collaborate with the OCR, complainants, and other appropriate stakeholders in developing a plan to eliminate or reduce adverse disparate impacts.²⁵⁸ As discussed above, in section II.C of the Recipient Guidance and again in section V.B of the Revised Investigation Guidance, EPA will decide how much "due weight" an area-specific plan is entitled to depending on the persuasiveness of the recipient's evidence that it will in fact eliminate or reduce adverse disparate impacts.²⁵⁹ If the OCR believes that a proposed plan will eliminate or reduce adverse disparate impacts to the extent required by Title VI, the Agency will notify the parties.²⁶⁰ Even after the Agency makes a formal finding of noncompliance against the recipient, it may consider a proposal by a recipient to adopt pollution reduction efforts.²⁶¹

In some cases, a recipient's plan might resolve some, but not all of the allegations that the OCR has accepted for investigation. In those cases, the Agency may settle these issues and continue its investigation of the remaining problems.²⁶²

If a recipient can provide sufficient assurance that a plan to eliminate or reduce adverse disparate impacts will be effectively implemented, the Agency would likely sign a settlement agreement to resolve and close the complaint. The Agency would monitor compliance with the agreement, and the settlement would likely contain special conditions regarding what would happen to future grants if the recipient fails to comply.²⁶³ The OCR might also reopen a complaint if the recipient fails to meet its commitments.²⁶⁴

Environmental justice advocates are concerned that informal resolution agreements may only reduce but not totally eliminate significant adverse disparate impacts and that such agreements may include off-site mitigation measures that do not address all of the harms in the affected community.²⁶⁵ Furthermore, they are concerned about how closely the Agency will monitor a recipient's compliance with the agreement and argue that the Agency should establish specific administrative procedures to allow a community to comment on whether mitigation measures are in fact working.²⁶⁶ On the other hand, state officials worry that EPA has too much discretion to decide when a recipient's efforts to reduce pollution are enough.

D. Investigative Procedures

The Agency observed that the process for investigating Title VI complaints is different from a judicial proceeding in which the plaintiffs and defendants each present evidence and argue for a particular verdict. In investigating a formal Title VI complaint, EPA has the sole legal responsibility for investigating all factual issues and reaching a conclusion. However, the Agency acknowledged that its investigation would often benefit from and proceed more quickly if the complainants and recipients submitted information.²⁶⁷ In section V.E, the OCR clarifies that neither the filing of a Title VI complaint nor its acceptance for investigation stays the permit at issue.²⁶⁸

1. Submission of Additional Information

Section II.B.1 gives recipients 30 days to respond in writing after receiving notification of a complaint. Section V.A states that either the recipients or complainants may submit additional relevant information during the investigation, but that the Agency will likely set time limits so it may complete the investigation within a reasonable time.²⁶⁹ After finishing its interviews with the recipients, complainants, and other witnesses, the OCR will likely ask each to submit any additional information within 14 days.²⁷⁰

Some environmental justice groups argue that recipients should be limited to the 30-day deadline in section II.B.1.²⁷¹ On the other hand, the ECOS has complained that 14 days is not enough time for states to provide additional information in many cases.²⁷² Likewise, many complainants may need more time to submit additional comments. It is unclear how strictly the Agency will enforce the 14-day time limit. If, as in the past, EPA is not going to meet its own deadlines for completing an investigation, perhaps the best approach is to give both recipients or complainants additional time to submit information as long as such submissions do not unnecessarily delay the Agency's actual ability to complete the investigation. EPA should not impose artificial deadlines that the Agency knows are unrealistic.

[30 ELR 11163]

2. Due Weight

Section V.B addresses under what circumstances EPA will give "due weight" to information submitted by the recipient and to area-specific agreements.²⁷³ It provides further explanation of the material on "due weight" in section II.C of the Recipient Guidance, which is discussed above.²⁷⁴ How much "due weight" the Agency will give to analyses or studies submitted by a recipient depends on the quality, relevance, and certainty of the data provided.

Section V.B.2 addresses how much "due weight" the Agency will give to recipients if they develop an "area-specific agreement" to reduce or eliminate adverse disparate impacts.²⁷⁵ If the OCR finds that reliable information shows that a recipient's proposed "area-specific agreement" would reduce adverse disparate impacts "to the extent required by Title VI," then the Agency would likely close the complaint.²⁷⁶ Furthermore, "if a later-filed complaint raises allegations regarding other permitting actions by the recipient that are covered by the same area-specific agreement, OCR would generally rely upon its earlier finding and dismiss the allegations."²⁷⁷ However, "an exception to this general guideline would occur where there is an allegation or information revealing that circumstances had changed substantially such that the area-specific agreement is no longer adequate or that it is not being properly implemented."²⁷⁸

A wide range of commenters have complained that the Agency retains too much discretion to decide when an "area-specific agreement" would reduce adverse disparate impacts "to the extent required by Title VI."²⁷⁹ Additionally, it is unclear to what extent an "area-specific agreement" precludes future complaints. For example, how will the Agency evaluate whether a new permit is covered by an agreement or constitutes changed circumstances? Some environmental justice advocates would require any new emissions to be offset or mitigated by a reduction within the same impacted area of a greater amount of existing pollutants.²⁸⁰

3. Submission of Additional or Amended Complaints

If a complainant submits additional allegations after the initial complaint, the Agency will consider whether to treat them as amendments to the existing complaint or as a new and separate complaint.²⁸¹ The OCR would evaluate how long it would likely take to consider these new allegations, the progress of its existing investigation, and how closely related they are to the existing allegations. Generally, the OCR will treat the additional allegations as a new and separate complaint unless it can more easily incorporate them into the existing investigation.

On its face, EPA's policy of evaluating whether it is convenient to add additional allegations to an existing complaint is reasonable. In making its evaluation, the Agency needs to apply realistic standards about how quickly it is likely to complete an investigation rather than rely on paper standards that it cannot meet.

4. Discontinued Operations/Mootness

The OCR will likely dismiss a complaint if the underlying permit at issue is withdrawn or revoked before any activities have commenced and the OCR has not completed its investigation.²⁸² If the permittee decides not to operate under the permit, the OCR has not completed its investigation, and the permittee has not begun operations, then the Agency will likely dismiss the complaint.²⁸³ If the permittee began operations before permanently halting them for any reason and the OCR has not finished its investigation, then the Agency may continue its investigation to determine whether any disparate impacts resulted before the shutdown. The Agency would consider the current closed status of the source in its decision, but a remedy might be appropriate, for example, if the discontinued permit is part of a broader pattern of discrimination.²⁸⁴

E. Disparate Impact Analysis

The Revised Investigation Guidance provides a more detailed explanation than the Interim Guidance of how the Agency will assess whether an impact is both adverse and borne disproportionately by a protected minority community.²⁸⁵ However, a wide variety of critics are unhappy that the Revised Investigation Guidance retains some of the broad discretionary language in the Interim Guidance. For example, in addressing the crucial issue of what constitutes an adverse disparate impact under Title VI, the Revised Investigation Guidance repeats the Interim Guidance's approach that the Agency will look at the totality of circumstances in each case and will use several different evaluative techniques.²⁸⁶ As a result, EPA can arguably reach whatever result it wants in any given case.

While giving the OCR broad discretion, the Revised Investigation Guidance provides a more detailed discussion regarding what types of impacts may constitute adverse disparate impacts on the basis of race, color, or national origin under Title VI. The Interim Guidance merely addressed the question of how the Agency might conduct a disparity analysis without reaching the final issue of when a disparity would likely violate Title VI.²⁸⁷ By contrast, the Revised Investigation Guidance reaches the crucial ultimate issue of what is an adverse disparate impact on the basis of race, color, or national origin by stating that the OCR would usually find adverse disparate impact under Title VI if reliable tests of both demographic disparity and disparities in the amount of impact are at least a factor of two times higher in the affected population than in an appropriate comparison [30 ELR 11164] population.²⁸⁸ Nevertheless, there are many remaining questions about how EPA will define crucial terms such as "affected population" or "an appropriate comparison population." In section VI.A, the Revised Investigation Guidance summarizes a six-step framework for adverse disparate impact analysis, described below.²⁸⁹ Section VI.B then provides a detailed description of each step.

1. Step 1: Assess Applicability

First, the OCR will examine what type of permit action is at issue: a new permit, the renewal of existing permits, or the modification of existing permits.²⁹⁰ For any type of permit, the Revised Investigation Guidance states that the OCR must normally investigate every Title VI complaint where the Agency has jurisdiction.²⁹¹ However, a modification such as a change in name or change in mailing address that does not involve pollutants named in the complaint will "generally" not trigger an investigation. Nevertheless, the Revised Investigation Guidance's vague discretionary language leaves open the absurd possibility that a change in name or mailing address could serve as the basis for initiating an investigation.²⁹² This is another instance where EPA's concern about allowing itself some discretion to address an unusual case leaves the impression that the guidances do not provide any clear rules.

EPA will usually investigate a complaint involving new permits, renewals, and modifications if the permit causes a net increase or the same level of pollutants, predicted risks, or measures of impact.²⁹³ If a complaint involving a permit modification is accepted for investigation, the Agency will likely assess only the modification and its effects rather than any preexisting impacts that are not affected by the requested modification.²⁹⁴

The Revised Investigation Guidance distinguishes between a decrease in emissions at a particular facility and an area-specific agreement that eliminates adverse disparate impacts as discussed in section V.B.2. First, if a permit action that is the subject of the complaint will significantly decrease either overall emissions or pollutants of concern at the facility named in the complaint, the Agency usually would not initiate an investigation of allegations regarding cumulative impacts.²⁹⁵ A recipient has the burden of demonstrating that the decrease at a particular facility is actual and significant.²⁹⁶ The decreases should be in the same media and from the same facility that is alleged in the complaint.²⁹⁷ Thus, a decrease in discharges to water may not form the basis for closing an investigation into allegations of cumulative air impacts.²⁹⁸ The recipient must present evidence of the decreases at the facility named in the complaint based on measurements of actual, contemporaneous emissions from the facility being permitted.²⁹⁹ If there is substantial uncertainty about whether there will be a decrease in fact, the OCR will err on the side of conducting an investigation.³⁰⁰ If there will be an increase in any type of emission at the facility named in the complaint, the Agency will usually investigate.³⁰¹ Even if it dismisses a particular complaint on the basis of a decrease at the facility named in the complaint, the OCR may still choose to conduct a compliance review of the recipient's relevant permit program.³⁰² Furthermore, the dismissal of a complaint involving a single facility would not affect the Agency's investigation of other facilities in the same geographic area.

ECOS has complained that the possibility of a compliance review even if a recipient decreases emissions undermines any incentive a recipient would have to achieve such decreases.³⁰³ However, it is questionable whether EPA is likely to conduct such reviews in light of existing backlog of actual complaints. Furthermore, some industry commenters would go beyond EPA's approach to exempt all permits from investigation unless they produce significant net increases.³⁰⁴ On the other hand, civil rights advocates argue that the Agency should tighten the circumstances in which a decrease precludes an investigation by requiring that the decreases occur not only in the same media and facility, but involve a diminution in the same pollutant because not all air pollutants, for example, cause the same harms.³⁰⁵

A dismissal involving decreases at a single facility should be distinguished from a complaint challenging permits in a geographic area with an approved areawide plan.³⁰⁶ If the permit is part of an areawide plan that the OCR has concluded will likely reduce or eliminate adverse disparate impacts to the extent required by Title VI, EPA will likely reject any complaint challenging a permit in that area as long as the plan is in compliance.³⁰⁷ Thus, an approved areawide plan carries broader protection for the recipient than evidence that there are decreases in pollution at a single facility.³⁰⁸ While areawide plans and decreases at a single permit are analytically distinct, both reflect the principle that the Agency does not want to waste its Title VI enforcement efforts on recipients that are in the process of substantially reducing or eliminating adverse disparities.

Environmental justice proponents are strongly critical of the Revised Investigation Guidance's encouragement of area-specific agreements as a way to preclude Title VI complaints. They argue that the use of such agreements to preclude Title VI complaints is contrary to the Agency's regulations because recipients have a duty to eliminate all significant adverse disparate impacts.³⁰⁹ Additionally, the Agency [30 ELR 11165] should require public participation when these agreements are adopted and monitor their implementation.³¹⁰

Furthermore, a wide range of commenters are concerned that EPA has too much discretion to decide when decreases or area-specific agreements are enough to close an investigation. Both state officials and civil rights advocates want EPA to provide a better explanation of when "area-specific agreements" are entitled to "due weight."

2. Step 2: Define Scope of Investigation

The Agency will carefully review which pollutants and impacts are appropriately within the scope of the investigation and develop a plan for analyzing them.³¹¹ In defining the scope of an investigation, the OCR will examine four types of information: (1) the complaint's allegations; (2) the recipient's data; (3) the Agency's evaluation of relevant scientific information; (4) and the Agency's assessment of all other pertinent data.³¹²

EPA may evaluate background sources of pollution that are not within the recipient's jurisdiction such as mobile source air emissions or nonpoint source runoff to assist the Agency in determining whether an adverse disparate impact exists. However, in determining whether a recipient has violated Title VI, the Agency will consider only impacts that are within the recipient's legal authority to regulate.³¹³ In defining the recipient's legal authority to regulate, the OCR will consider not just the laws and regulations that directly control the permit decision, but also all state and federal laws that could affect the facility.³¹⁴ EPA will consider any legal authority that the recipient could use even if it has not actually exercised such authority.³¹⁵

By generally limiting its Title VI investigations to any health and environmental impacts within a recipient's legal authority to regulate, EPA is trying to avoid controversial issues involving the possible social impacts of facilities on minority areas, including potential decreases in property values or harm to cultural resources.³¹⁶ Environmental justice groups are generally unhappy with the Revised Investigation Guidance's narrow legalistic interpretation of Title VI issues because it ignores impacts or effects that result from a recipient's actions even if they are not technically within its legal authority and, accordingly, generally exclude important cultural, social, and even economic impacts, such as declining property values.³¹⁷ Civil rights proponents argue that Title VI forbids recipients from engaging in actions that cause adverse disparate impacts even if the discrimination results from a factor beyond its legal authority, such as local zoning laws.³¹⁸ If a recipient's liability under Title VI is limited to its legal authority, they would prefer a broad interpretation of which issues are within a recipient's statutory or regulatory power.

Conversely, state officials are mostly pleased that the guidances will usually exclude broad social, cultural, or economic issues, in part because there are no clear standards for what would constitute a violation. However, state and industry representatives are concerned about the Revised Investigation Guidance's references to state constitutional authority and other general laws that have not usually been applied to state environmental programs because the Agency could use them to "broadly define" the authority of recipients to include broader cultural, social, or economic issues.³¹⁹ Furthermore, state officials point out that the guidances fail to address the problem of whether other laws, programs, or policies, especially local land use regulations or ordinances, may conflict with or limit the legal authority of recipients to take actions that promote environmental equity.³²⁰

In assessing possible adverse disparate impacts on the basis of race, color, or national origin, the OCR may consider other relevant or nearby sources of similar pollutants for its investigation.³²¹ The Agency has considerable discretion in defining what is the appropriate universe(s) of additional sources. The Agency may include in the universe(s), if appropriate, background sources such as mobile source air emissions or nonpoint source runoff that are not within the recipient's legal authority. For instance, in the case of lead, EPA may consider impacts from both a permitted source and household lead paint exposures in determining whether additional emissions of lead are adverse. Accordingly, cumulative impacts of both regulated and unregulated sources can be considered to determine the cumulative level of potential adverse impacts.³²² However, as discussed above, EPA will consider only impacts that are within the recipient's legal authority to regulate in determining whether a recipient has violated Title VI.³²³

If the nature of the sources of pollutants or their impact is not clear from the complaint, such as allegations of multiple, unidentified types of pollutants, the OCR will exercise its best professional judgment in defining what are the most likely sources of harm.³²⁴ While the Agency has a good argument that it needs some discretion in evaluating complex pollution issues on the frontiers of science, it is not surprising that a wide range of commenters are concerned by the lack of definite standards.

The Revised Investigation Guidance presumes that the universe of sources will fall into three main categories. First, a complaint may allege that a facility seeking a permit is part of a larger number of similar sources in a geographic area [30 ELR 11166] that create cumulative adverse disparate impacts, perhaps in conjunction with unregulated background sources.³²⁵ In the first category, the OCR will probably evaluate the cumulative impacts of pollution from a broad universe of regulated and permitted sources; regulated but usually unpermitted sources such as some paint stripping or metal finishing operations, mobile sources, or sources of surface water runoff; and unregulated sources.³²⁶ The OCR would attempt to evaluate the relative contribution of various source categories.³²⁷

A second category or universe of sources includes only those that are regulated or permitted. For example, a complaint may allege that the permitting of sanitary landfills throughout the state results in discriminatory human health effects for African Americans. If the complaint does not contain an allegation of cumulative impacts from multiple sources, then the OCR would just investigate the impacts from the regulated sources, for example, the sanitary landfills, presented in the complaint.³²⁸

Third, a single permitted facility alone may support an adverse disparate impact claim, but probably only if it handles unique or extremely toxic materials.³²⁹ For example, a permit to store or dispose of radioactive materials or pathogens could pose sufficient adverse disparate impacts to establish a Title VI violation. In category three, EPA would consider in its adverse disparate impact analysis only pollutants or risks from the specific individual entity that was the focus of the complaint and probably would not include information from background sources in the analysis.³³⁰

After identifying the relevant universe(s) of sources and pollutants, the OCR would then initiate an adverse disparate impact investigation that examines the exposure pathways by which pollutants of concern could potentially carry from the permitted facility and other sources to human receptors. EPA would likely evaluate the quality of the data and use assessment tools, such as appropriate mathematical models and exposure scenarios.³³¹ The Agency would inevitably exercise considerable discretion in evaluating such evidence.

3. Step 3: Conduct Impact Assessment

The OCR will then determine whether the activities of the facility, by itself or in combination with other relevant sources, are likely to result in an impact. The OCR has developed a hierarchy of data types to use in weighing the quality and reliability of the available information.³³²

In its December 1998 report, EPA's SAB identified several approaches for conducting impact assessments.³³³ The OCR will use its professional judgment to select one or more of these approaches, as appropriate, for each investigation. In most cases, the OCR will have to use risk estimates about the potential harmful effects of a pollutant or combination of pollutants because direct causal evidence is usually unavailable. For each complaint, the report will likely include a discussion of various uncertainties in the scientific methodologies used in the Agency's impact assessment. In Step Five, the OCR will weigh the uncertainties about the data and its assessment methods in reaching a decision.³³⁴

Because the quality and reliability of scientific evidence varies significantly, the Agency inevitably has to use its professional judgment in evaluating such evidence and reaching a final conclusion about whether adverse disparate impacts harm a minority community. Many commentators are concerned that the guidances fail to set forth any clear standards for how the Agency will make such evaluations.³³⁵ Business interests and some state officials would prefer a requirement that only scientifically reliable evidence should be used by the Agency.³³⁶ They are concerned that EPA will try to reach a decision or settle a complaint even if the available data is inadequate to determine whether there are adverse disparate impacts. They fear the Agency will pressure recipients or permittees to adopt costly changes even if there is no clear evidence of harm. If the Agency makes a discrimination finding based on arguably inadequate information, a recipient or possibly a disappointed permit applicant might seek judicial review to challenge the Agency's conclusions.

However, there are often no clear scientific standards for evaluating many chemicals, especially the cumulative impact of different pollutants on minority communities. Accordingly, environmental justice proponents have argued that EPA should consider evidence suggesting serious risks even if there is not yet a scientific consensus.³³⁷ Because there is often scientific uncertainty about the risks of many chemicals, EPA's policy of considering "all readily available relevant data in conducting its assessments" is reasonable. Nevertheless, in reaching the ultimate adverse disparate impact decision or encouraging a settlement, the Agency must consider whether the information and conclusion in its impact assessment could withstand judicial scrutiny.

[30 ELR 11167]

4. Step 4: Make Adverse Impact Decision

The OCR will evaluate whether the proposed permit is likely to create significant adverse disparate impacts.³³⁸ If the impact is not significantly adverse, the Agency will likely reject the complaint. To evaluate the risk or measure of impact; the OCR would initially compare data regarding the proposal to benchmarks for significance established under any relevant environmental statute, Agency regulation, or policy.³³⁹ If the potential impacts meet or exceed a significance level, the OCR would usually find an adverse impact under Title VI.

However, environmental justice advocates argue that adverse impacts can still occur even where a significance level is not exceeded, especially because of the potentially synergistic impact of multiple cumulative chemicals or the unusual sensitivity of some minority subpopulations.³⁴⁰ To address these concerns, the Revised Investigation Guidance recognizes that in evaluating cumulative risks from multiple sources of pollution there are in some cases no established benchmarks and that the Agency would have to make a judgment based on the best available scientific evidence.³⁴¹ Nevertheless, some civil rights proponents remain concerned that the Revised Investigation Guidance does not clearly address the problem that certain subpopulations, such as children, the elderly, asthmatics, and many others may be more sensitive to particular pollutants than the general population.³⁴²

The Revised Investigation Guidance provides several examples of how the OCR will probably use adverse impact benchmarks. For instance, a cumulative lifetime risk of developing cancer that is less than one in one million is "very unlikely" to support a finding of adverse impact, but a risk greater than one in ten thousand is "more likely" to lead to a finding of adverse impact.³⁴³ EPA will use its judgment based on all the evidence if the risk is between one in one million and one in ten thousand. While benchmarks for noncancer health effects are less established, the Agency would try to use a hazard index to measure such risks where a value of less than "one" would be "very unlikely" to result in a finding of adverse impact.³⁴⁴ Although there is no established value for when noncancer effects are likely to be adverse, the higher the hazard index is above "one," the more likely the Agency will be to find an adverse impact.

Despite its adverse impact benchmark examples, the Revised Investigation Guidance's use of terms such as "very unlikely" or "more likely" still gives the Agency far more discretion than many would prefer. Environmentalists would prefer a more definite standard that any cancer risk greater than one in one million is unacceptable.³⁴⁵ Many state and industry representatives would prefer using a firm one-in-ten-thousand risk test. The Agency's in-between, discretionary approach inevitably displeases both sides to some extent.

The Revised Investigation Guidance warns recipients that complying with existing environmental laws does not guarantee that they are in compliance with Title VI.³⁴⁶ In many cases, a policy or practice that is neutral on its face may have disproportionate discriminatory effects on a minority group. An environmental law may fail to prevent the excessive concentration of certain sources or address disproportionate impacts on particular subpopulations. For instance, an air pollution regulation may fail to control adverse impacts on asthmatics, and that subpopulation may be disproportionately composed of minorities.³⁴⁷ Thus, in some instances, a recipient may have to exceed existing environmental standards to protect a minority subpopulation and thereby comply with Title VI. State officials are unhappy with EPA's uncertain standards and the possibility that they may have to exceed existing standards on a case-by-case basis.

Nevertheless, the Revised Investigation Guidance suggests that a recipient is less likely to be found in violation of Title VI if it complies with the Agency's health standards for a particular pollutant. While not directly mentioning the Select Steel case, the Revised Investigation Guidance specifically addressed whether compliance with NAAQS established under the CAA would protect a recipient against a Title VI complaint. The Agency observed that:

by establishing an ambient, public health threshold, the primary NAAQS contemplate multiple source contributions and establish a protective limit on cumulative pollution levels that should ordinarily prevent an adverse air quality impact on public health. Air quality that adheres to such standards (e.g., air quality in an attainment area) is presumptively protective of public health in the general population.³⁴⁸

ECOS has called on EPA to explicitly adopt Select Steel as a precedential standard.³⁴⁹ By contrast, many environmental justice advocates believe that Select Steel was wrongly decided because minority areas may be adversely affected even if an air region is in compliance with NAAQS.³⁵⁰ Furthermore, they argue that a recipient's compliance with technology-based standards should not carry the same presumption as compliance with health-based standards such as NAAQS.³⁵¹

However, EPA stated that there could be exceptions to the general rule that compliance with the health-based ambient standards is presumptively protective of the public health. If the Agency's investigation produces evidence that significant adverse impacts are in fact taking place, then "this presumption of no adverse impact may be overcome."³⁵² For example, the lead NAAQS would normally be protective of a wide range of lead exposure because the standard takes [30 ELR 11168] into account harms resulting from both inhalation of airborne lead and exposures to non-air sources such as the ingestion of lead contained in paint, soil, or water.³⁵³ However, an area may be in attainment with the lead NAAQS, but in some cases residents could still suffer adverse effects from lead if there are unusually high levels of lead in paint, soil, or water in that particular area. In that example, the Agency might find adverse impacts despite the presumption of no adverse impacts when an area is in compliance with NAAQS for lead.³⁵⁴ Furthermore, "even if an area is in compliance with the NAAQS for a criteria pollutant, there still may be Title VI concerns related to other criteria pollutants, to toxic hot-spots associated with hazardous air pollutants under 112 of the [CAA], or to pollutants from other media."³⁵⁵ States would prefer that EPA treat Select Steel as a firm rule that compliance with NAAQS and other environmental standards is enough to protect a recipient from Title VI liability.³⁵⁶

If the permit action clearly leads to a decrease in adverse disparate impacts, the OCR is likely to find no violation of the Agency's Title VI regulations and will close the case.³⁵⁷ As discussed above, state officials are disappointed that the guidances do not guarantee that a substantial reduction is enough to achieve compliance with the statute. Conversely, environmental justice advocates contend that the Agency must ensure that recipients eliminate all significant adverse disparate impacts.

5. Step 5: Characterize Populations and Conduct Comparisons

While a complaint may roughly identify the population group that is allegedly adversely harmed by the recipient's actions, the Revised Investigation Guidance addresses how the Agency will precisely identify and determine the characteristics of the "affected population."³⁵⁸ After identifying the affected population, the OCR will analyze whether a disparity exists between the affected population and an appropriate comparison population in terms of adverse impact and race, color, or national origin.³⁵⁹ A wide range of critics have argued the Revised Investigation Guidance does not adequately define such terms as "affected population" and "an appropriate comparison population."³⁶⁰

[] Identifying and Characterizing Affected Populations. First, EPA will identify the affected population. The affected population might be defined as those likely to suffer adverse impacts above a certain threshold or those who live near particular sources or pathways generating adverse impacts.³⁶¹ If different populations may be disproportionately affected by different pollutants or exposure pathways, the Agency may identify separate affected populations.³⁶² The OCR will likely use mathematical models, when possible, to estimate the location and size of the affected populations because an area of adverse impacts may be irregularly shaped as a result of environmental factors or other conditions such as wind direction, stream direction, or topography.³⁶³ Accordingly, depending on the location of a plume or pathway of impact, the affected population may or may not include those people with residences in closest proximity to a source.³⁶⁴

However, if mathematical models are impractical, the Agency may use simpler approaches based primarily on proximity to the environmental medium and impacts of concern in that case.³⁶⁵ For example, because air releases generally decrease based on an inverse relationship with distance, the Agency might simply place an imaginary circle around the source to determine the potential degree of impact to a population. For surface water releases, the OCR might identify the most likely downstream receptor populations.

A wide range of commenters have raised concerns about EPA's discretion in defining affected populations. Additionally, some have criticized the use of simple proximity models that may not capture the full impact of pollutants on minority communities, although others have supported their use.³⁶⁶

Furthermore, the OCR's analysis would also seek to measure the race, color, or national origin of the affected population(s) using available demographic data, including the currently available U.S. Census Bureau information.³⁶⁷ The OCR would use standard demographic analysis methods, such as geographic information systems, to produce data estimating the race, color, or national origin and density of populations within a certain proximity from a facility, and would try to estimate the affected population based on scientific models.³⁶⁸ The OCR would attempt to use the smallest geographic area possible for the demographic data, such as census blocks, when conducting disparity assessments.³⁶⁹

[] Comparing Affected Populations to Comparison Populations and Assessing Disparity. After identifying the affected population, EPA will undertake a disparity analysis that compares the affected population to an appropriate comparison population to determine whether disparity exists that may violate EPA's Title VI regulations.³⁷⁰ Following its evaluation of the allegations and facts in each case, the OCR will usually define a relevant comparison population from those who live within one of the three following [30 ELR 11169] categories: (1) a "reference area" such as the recipient's jurisdiction, which may range from an air district to an entire state; (2) a political jurisdiction such as a town, county, or state; or (3) an area defined by environmental criteria, such as an airshed or watershed.³⁷¹ The OCR will usually select comparison populations that are larger than the affected population. For example, if a complaint alleges that Asian Americans throughout a state bear adverse disparate impacts from permitted sources of water pollution, the OCR would likely choose the entire state as the appropriate reference area.³⁷² The OCR may either include or exclude the affected population from the comparison population, including the general population of a state.³⁷³

Because there is no one formula or analysis to be applied in every single case, the OCR will use its professional judgment in deciding which comparison tests are most appropriate for each complaint. The Agency may evaluate whether there is a disparity by using comparisons both of the different prevalence of race, color, or national origin in the two populations, and of the level of risk of adverse impacts experienced by each population.³⁷⁴ As part of the OCR's assessment, the Agency will generally apply at least one and usually more of the following comparisons of demographic characteristics: (1) the demographic characteristics of an affected population in relationship to the demographic characteristics of a nonaffected population or the general population³⁷⁵; (2) the demographic characteristics of those most likely affected, for example, the highest 5% of risk, to those least likely affected, such as the lowest 5%³⁷⁶; or (3) the probability of different demographic groups such as African Americans, Hispanics, and Caucasians in a surrounding jurisdiction being in an affected population or a highly affected subpopulation.³⁷⁷

The OCR also expects to compare the level of risk of potential adverse impacts between the affected population and comparison population by evaluating either: (1) the average risk of adverse impacts by demographic groups within the general population or within an affected population³⁷⁸; or (2) the range of risk of adverse impacts by demographic groups within the general population or within an affected population.³⁷⁹

A wide range of commenters have raised concerns about EPA's broad discretion in defining comparison populations, including its apparently total discretion to include or exclude the affected population from the comparison population.³⁸⁰ Business representatives argue that it is often inappropriate to compare an affected population living in a highly urban or industrial area with a statewide population that is largely suburban or rural. According to the Business Network for Environmental Justice, the Revised Investigation Guidance falsely assumes that the affected population should not never be significantly different from the statewide population, but Title VI requires only that there not be discrimination between similar populations. Instead, they argue that EPA should compare the affected population to a comparison population that lives in an area with a similar range of residential, industrial and commercial uses.³⁸¹ By contrast, environmental justice advocates often believe that EPA should find a prima facie case of adverse disparate impacts if, for example, an urban area with a high minority population has a significantly greater level of pollution than surrounding suburban or rural areas that are predominantly white in racial composition.

6. Step 6: The Adverse Impact Decision

In making an adverse disparate impact decision, the OCR will usually evaluate the issue of disparity both in terms of the demographic characteristics of the affected community and by the level of risk presented by potential or actual impacts. The Agency is most likely to find adverse disparate impact if there is a significant disparity in both risk and demographic characteristics. If the disparity is not significant, the Agency will likely find no violation of its Title VI regulations and close its investigation.³⁸²

First, EPA will examine whether the measure of the demographic disparity between an affected population and a comparison population is statistically significant to at least two to three standard deviations.³⁸³ By applying a test of statistical significance, the Agency seeks to reduce the possibility of a false measurement of difference because of random chance. However, some environmental justice advocates claim that the choice of two or three standard deviations is arbitrary and that the Agency instead should apply a more flexible standard depending on how much data is available.³⁸⁴

The Agency is most likely to find an adverse disparate impact if significant disparities are found in multiple measurements of risk, including both adverse impacts and demographic comparisons. For example, if reliable tests of both demographic disparity and disparities in the amount of impact are at least a factor of two times higher in the affected population than in an appropriate comparison population, the OCR would usually find adverse disparate impact under Title VI.³⁸⁵ On the other hand, in cases where both the disparity of impact and demographics are not statistically significant, the Agency "is somewhat less likely" to find adverse disparate impact.

The more difficult cases are where there is a significant disparity in one measure and not in the other. In those cases, [30 ELR 11170] EPA will ordinarily attempt to balance the two factors in light of all circumstances. "For instance, where a large disparity (e.g., a factor of 10 times higher) exists with regard to a significant adverse impact, the OCR might find disparate impact even though the demographic disparity is relatively slight (e.g., under 20%)."³⁸⁶ The Revised Investigation Guidance emphasizes that for both demographic disparity and disparity of impact, there is no fixed formula or analysis that may be applied in every case.³⁸⁷ For example, because there is great variability in the proportion of racial subgroups in each state, from 4% to 50% of different states' populations, the factor of two disparity tests may work better in some states than others.³⁸⁸

Some environmental justice advocates suggest that the Agency apply a less rigorous statistical analysis of disparity if either the pollutants are unusually dangerous or there is a very high incidence of a disease in a community such as asthma.³⁸⁹ By contrast, state officials want more definite standards for defining adverse disparate impacts.³⁹⁰

F. Determining Whether a Finding of Noncompliance Is Warranted

To find a recipient in violation of the Agency's Title VI implementing regulations, the OCR must determine whether the recipient's programs or activities have resulted in an adverse disparate impact that is unjustified.³⁹¹ Accordingly, if it determines that an impact is both adverse and borne disproportionately by a minority group protected by Title VI, the OCR will next determine whether that impact is justified.

If the OCR concludes that unjustified adverse disparate impacts are present, it will make a preliminary finding of noncompliance.³⁹² Within 50 days, the recipient may challenge the preliminary finding, agree to the OCR's recommendations for voluntary compliance, or propose its own methods of compliance.³⁹³

1. Justification

Under Title VI, a recipient may "justify" a decision that creates adverse disparate impacts if it can demonstrate a substantial, legitimate justification.³⁹⁴ A recipient may offer its justification following the Agency's notification of the complaint³⁹⁵ or after EPA makes a preliminary finding of noncompliance with Title VI.³⁹⁶

[] Types of Justification. The Revised Investigation Guidance provides a more thorough explanation of when a recipient may provide a substantial legitimate justification for a permit that results in adverse disparate impacts than the Interim Guidance. The Interim Guidance had stated that a recipient could justify a project notwithstanding its adverse disparate impacts if the recipient could proffer an "articulable value" for granting the permit, such as a substantial benefit to the community.³⁹⁷ The Revised Investigation Guidance eliminates the confusing term "articulable value" and instead offers a list of specific factors, including public health, environmental, or economic benefits that may provide a sufficiently strong legitimate justification.³⁹⁸ Citing Title VI cases, the Revised Investigation Guidance states that to demonstrate an acceptable justification despite adverse disparate impacts, a recipient should generally "show that the challenged activity is reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient's institutional mission."³⁹⁹

For example, if a permit for a wastewater plant provided important health or environmental benefits to the affected population, granting such a permit might well be justified because the benefits are central to the recipient's statutory goals.⁴⁰⁰ Additionally, the OCR will consider whether the economic benefits of a challenged activity are an acceptable justification, but only if those economic benefits "are delivered directly to the affected population and if the broader interest is legitimate, important, and integral to the recipient's mission."⁴⁰¹ In determining to what extent direct economic benefits will be realized by the affected community, the Agency will consider not just the recipient's views, but also the views of the affected community.⁴⁰² Even if a recipient provides an apparently legitimate justification, that justification may be rebutted if EPA determines that a less discriminatory alternative exists, as discussed below.

A variety of commentators have criticized the justification standard, especially the "integral" requirement, as being unclear. Business commenters have complained that this standard, especially the requirement that the justification be integral to the recipient's mission, is more stringent than most Title VII decisions.⁴⁰³ Environmental justice advocates are particularly concerned about how the Agency will apply the standard in addressing a project's economic benefits. For example, are a private project's economic benefits ever integral to a state environmental agency's mission?⁴⁰⁴

Many environmental justice advocates are uncomfortable with the use of any justification for outweighing significant [30 ELR 11171] adverse health or environmental impacts,⁴⁰⁵ but Title VI cases have generally followed Title VII decisions in allowing a defendant to use a legitimate economic or social benefit to overcome a prima facie case of disparate impact discrimination.⁴⁰⁶ If justification is used at all, environmental justice proponents want a stronger burden of proof requiring that a substantial proportion of the benefits go to the affected communities rather than to other communities that do not bear most of the burdens and risks. Conversely, business commenters have complained that the requirement that the benefits must go directly to the affected community is more stringent than Title VI or VII case law and that EPA should consider economic benefits to a broader range of interests.⁴⁰⁷

[] Less Discriminatory Alternatives. The Revised Investigation Guidance cites Title VI case law for the principle that a recipient's otherwise legitimate justification is not valid if a less discriminatory alternative exists that could achieve the benefits sought by the recipient.⁴⁰⁸ The Revised Investigation Guidance states that "courts have defined the term 'less discriminatory alternative' to be an approach that causes less disparate impact than the challenged practice, but is practicable and comparably effective in meeting the needs addressed by the challenged practice."⁴⁰⁹ The Interim Guidance had required a less discriminatory alternative to be "practicable" and "equally effective in meeting the needs addressed by the challenged practice."⁴¹⁰ The "comparably effective" standard is potentially better because that test is more likely to focus on whether an alternative achieves essential business objectives. By contrast, the "equally effective" standard could be misused to focus on minor differences between the facility at issue and a less discriminatory alternative that do not matter.⁴¹¹ This is one example where the Revised Investigation Guidance is possibly more favorable to complainants than the Interim Guidance.

Business commenters have complained that the Revised Investigation Guidance inappropriately places the burden of proof about whether a less discriminatory alternative exists on the recipient.⁴¹² In Title VI and VII cases, the ultimate burden of showing that a less discriminatory alternative exists remains with the plaintiff.⁴¹³ However, because Title VI administrative complaints are not an adversarial process and recipients typically possess more information about the possibility of alternatives than either EPA or the complainants, there is a good argument for placing an effective burden of at least production on the recipient.⁴¹⁴

Courts have usually allowed defendants in Title VI or VII cases to introduce evidence that a less discriminatory alternative is impracticable because of cost, safety, or other legitimate business reasons.⁴¹⁵ The Revised Investigation Guidance states that the "OCR will likely consider cost and technical feasibility in its assessment of the practicability of potential alternatives."⁴¹⁶ Many environmental justice advocates are opposed in principle to using cost as a justification to exclude a less discriminatory alternative because many minority groups are poorer on average than the general population and are more likely to live where land is cheap, but courts have allowed consideration of cost both because economic discrimination is acceptable in American society and the exclusion of cost as a factor might discourage economic development.⁴¹⁷ Additionally, civil rights proponents are concerned that the Revised Investigation Guidance does not adequately explain how the Agency will weigh "cost and technical feasibility."⁴¹⁸ Is a small increase in cost enough to reject an alternative that will significantly reduce disparate impacts? EPA could interpret the terms "practicable" and "comparably effective" to require recipients to consider any less discriminatory alternative that is roughly comparable in price and to exclude alternatives only if they are significantly more expensive.⁴¹⁹

Furthermore, the Revised Investigation Guidance states that "practicable mitigation measures associated with the permitting action could be considered as less discriminatory alternatives, including, in some cases, modifying permit conditions to lessen or eliminate the demonstrated adverse disparate impacts." Environmental justice advocates are concerned that the Revised Investigation Guidance does not require on-site mitigation measures and that recipients may propose off-site mitigation measures that do not address all of the harms in the affected community.⁴²⁰ Also, while the Revised Investigation Guidance's use of the term "practicable" suggests that the Agency will approve only measures that should work in theory, a potential problem with EPA's approach is that there is no discussion of how the Agency will monitor whether mitigation measures are actually [30 ELR 11172] working.⁴²¹ Accordingly, they argue that the Agency should establish specific administrative procedures to allow a community to comment on whether mitigation measures are in fact working.⁴²²

Elsewhere, the Revised Investigation Guidance does discuss the possibility of imposing sanctions or reopening a complaint if the recipient fails to meet its proposed compliance plans or settlement agreement with the Agency.⁴²³ Nevertheless, the Agency should spell out more clearly that it will make sure that any mitigation measures used to justify a project actually work reasonably well in practice. The Title VI Advisory Committee's report discussed the possibilities of incorporating mitigation measures into the permit itself, or, if that is not feasible, of creating a contract between the community and the permittee to allow the community to monitor compliance.⁴²⁴

[] Voluntary Compliance. The Revised Investigation Guidance states that the OCR will consider a range of possible actions by the recipient to achieve voluntary compliance.⁴²⁵ In some cases, the OCR may be satisfied with a narrow solution that eliminates or reduces unjustified adverse disparate impacts only from the permitted activities that triggered a complaint. In other cases, a recipient might propose broader remedial efforts that address the combined impacts of several contributing sources. In determining what types of voluntary compliance measures are necessary, the Agency will normally examine only adverse disparate impacts resulting from actions within the recipient's authority. Additionally, the Agency will consider implementation issues such as cost and technical feasibility in determining what actions the recipient must take to achieve compliance with Title VI.⁴²⁶

Significantly, the Revised Investigation Guidance indicates that EPA will not necessarily demand that the recipient revoke or deny the permit that is the focus of the complaint "because it is unlikely that a particular permit is solely responsible for the adverse disparate impacts."⁴²⁷ The Agency's focus is on the recipient's overall record rather than the permit that may have triggered the complaint and investigation.⁴²⁸ Additionally, Anne Goode has suggested that EPA may not have the legal authority under Title VI to force permit revocations by a recipient, presumably because the Agency's regulations refer only to the termination of funding as a sanction.⁴²⁹ However, as in the Shintech case, EPA might veto or remand a permit that violates another statutory or regulatory requirement.

While the authority to terminate funding is the main explicit sanction available under Title VI,⁴³⁰ EPA normally will impose that draconian sanction only if the recipient refuses to make changes to reduce adverse disparate impacts. Instead, the Agency will likely encourage the recipient to consider how possible changes in its permitting policies with regard to a wider range of permitted sources than the challenged permit could lead to sufficient reductions in adverse disparate impacts sufficient to comply with Title VI.⁴³¹

Environmental justice advocates generally support EPA's policy of encouraging recipients to examine ways to reduce adverse disparate impacts from a wide range of sources rather than just the challenged permit.⁴³² However, they are angry about the reluctance of EPA to require revocation of an offending permit or to impose sanctions against recipients found to have caused adverse disparate impacts.⁴³³ While the Agency is correct that a challenged permit is rarely the "sole" cause of adverse disparate impacts within a minority community, they argue it is appropriate to deny or revoke a permit if it increases those impacts because denying a permit is the most powerful sanction to prevent adverse impacts.⁴³⁴

On the other hand, state officials are generally pleased that the Agency prefers reaching a voluntary compliance agreement with a recipient rather than imposing sanotions.⁴³⁵ However, ECOS has complained that recipients have only 10 days to voluntarily comply after a formal finding of noncompliance.⁴³⁶ This 10-calendar-day time period is established in the Agency's Title VI regulations and is not changed by the Revised Investigation Guidance.⁴³⁷ While 10 days may seem like a short time, in most cases, EPA will give recipients advance warning that there may be a finding of noncompliance, and the Agency normally will allow states a reasonable amount of time to actually implement a plan. So the 10-day time frame is not as short as it may appear at first.

2. Hearing/Appeal Process

If the recipient and Agency cannot reach a voluntary compliance agreement, then EPA will make a formal finding of noncompliance.⁴³⁸ The Revised Investigation Guidance concludes by reviewing the Agency's procedures for a recipient to challenge a finding of noncompliance. A recipient has a right to a hearing before an EPA administrative law judge (ALJ) to challenge a finding of noncompliance and to appeal an adverse decision by the ALJ to the Administrator [30 ELR 11173] of EPA.⁴³⁹ If the EPA Administrator decides to terminate financial assistance to the recipient, the Agency must submit a written report to the appropriate congressional committees 30 days before the decision becomes effective.⁴⁴⁰ The Revised Investigation Guidance does not change any of these appeals procedures.

IX. Conclusion

While the draft guidances are an improvement compared to the Interim Guidance, a wide range of groups are disappointed that each fails to provide clear standards in many important areas. Most criticism of the draft guidances stems from the Agency's insistence on retaining discretion over a wide range of crucial issues. Despite the difficult scientific and legal issues involved, EPA must develop more certain procedural rules and substantive standards for its Title VI program. If the Agency establishes clear rules specifying what states or local agencies should do to comply with Title VI, recipients are more likely to adopt changes that reduce or eliminate adverse disparate impacts that lead to complaints. Furthermore, by reducing uncertainties about what constitutes a violation, the Agency will have a better chance of reducing both the number of complaints and the time it takes to process any remaining complaints.

State officials and industry representatives have criticized the guidance for not establishing clear standards for when a recipient is in compliance with Title VI, but they are likely to win most cases in the end. They are disappointed that the Agency will not automatically defer to recipients that have strong Title VI programs. Additionally, they are unhappy that the Agency is unwilling to dismiss weak complaints without first conducting an investigation. They are concerned that EPA may pressure recipients to make concessions to complainants as a way to informally settle cases and avoid an Agency investigation.

Nevertheless, even though the guidances do not provide the absolute certainty they would prefer, state and industry officials should be satisfied that the Agency will not suspend a permit during the course of its investigation. Moreover, EPA will generally not conduct an investigation if a challenged permit will decrease the overall amount of pollutants of concern. Furthermore, an area-specific agreement generally precludes investigations into any permits covered by its terms. Additionally, EPA reduces potential uncertainties for state officials and industry by not holding a recipient accountable if an issue is beyond its legal authority.⁴⁴¹ While there is some uncertainty about how the Agency will evaluate evidence of adverse impacts, the guidances' emphasis on scientifically reliable evidence should usually favor state and industry interests.⁴⁴²

Moreover, state and industry representatives should be assuaged that the Agency is unlikely to revoke or veto a permit even if the OCR finds discrimination. Instead the guidances emphasize that discrimination usually results from a broader source of problems than the challenged permit. The Agency encourages recipients to make voluntary improvements in their overall programs rather than singling out the challenged permit for revocation.⁴⁴³ As a result, industry has little reason to fear that a challenged permit could be later revoked for Title VI reasons.⁴⁴⁴

Environmental justice and civil rights advocates have the most reason to be disappointed with the two draft guidances. They are upset that the Agency is unlikely to suspend permits during the investigation process.⁴⁴⁵ Additionally, advocates are concerned that the narrow focus on issues within the recipient's legal authority generally leaves out broader quality-of-life issues or falling property values.⁴⁴⁶ Furthermore, the Revised Investigation Guidance establishes a high standard of proof by generally requiring scientifically reliable and statistically significant evidence that a minority group experiences adverse disparate impacts at a rate at least two times as high as a relevant comparison group.⁴⁴⁷ Moreover, they are disappointed that the Agency is unlikely to force recipients to revoke a permit even if EPA finds the recipient in noncompliance.

Nevertheless, the guidances give complainants a reasonable opportunity to present allegations of discrimination and assure that EPA will conduct an investigation of those allegations. If a permit causes significant adverse disparate impacts, the Agency will probably pressure the recipient to make changes to reduce such impacts. While the facts were disputed, the proposed Shintech facility arguably would have met the standard of proof set forth in the Revised Investigation Guidance.⁴⁴⁸ Accordingly, while environmental justice advocates might prefer a broader and less difficult standard, the Revised Investigation Guidance's proposed standard of proof provides them with a reasonable opportunity to prove a violation.

In light of EPA's reluctance to suspend a challenged permit or to terminate funding to a recipient, the primary impact of the guidances will likely be to encourage voluntary efforts by recipients to reduce adverse disparate impacts.⁴⁴⁹ In particular, areawide agreements to reduce or eliminate adverse disparate impacts could bring substantial reductions in adverse disparate impacts. Unfortunately, the guidances do not provide clear answers about to what extent recipients need to make reductions.⁴⁵⁰ [30 ELR 11174] While EPA should give states considerable discretion in how they achieve reductions, the Agency should ensure that recipients aggressively eliminate any significant adverse disparate impacts. If area-specific agreements are the Agency's primary vehicle for reducing or eliminating discrimination, EPA needs to develop better criteria for what these plans require, when a recipient needs to modify a plan, and how an agreement affects the filing of new Title VI complaints. EPA should answer these questions when it promulgates its "final" Title VI guidance. By providing clear standards, EPA can reduce uncertainties for both complainants and recipients, improve its investigative processes, and achieve significant reductions in adverse disparate impacts.

1. U.S. EPA, INTERIM GUIDANCE ON INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS (Feb. 1998) (available from the ELR Document Service, ELR Order No. AD-3660) [hereinafter INTERIM GUIDANCE].

2. U.S. EPA, Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), 65 Fed. Reg. 39650 (June 27, 2000) (available from the ELR Document Service, ELR Order Nos. AD-4517 (Draft Recipient Guidance) and AD-4516 (Draft Revised Investigation Guidance)) [hereinafter Guidances].

3. Id. at 39651-52, 39655.

4. Id. at 39651-54.

5. Id. at 39650-51.

6. Id. at 39651-52; Michael Bologna, Environmental Justice: Expanded Version of Civil Rights Guidance Enjoys Broad Support, EPA Official Reports, 31 Env't Rep. (BNA) 1581, 1581-82 (July 28, 2000).

7. See the Business Network for Environmental Justice (BNEJ), Comments on "Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits" (Aug. 28, 2000) [hereinafter BNEJ]; ECOS, Comments on Environmental Justice Guidance (as approved by the Cross Media Committee on Aug. 14, 2000); Sheila R. Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking, 30 ELR 10992 (Nov. 2000); Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ELR 10681 (Sept. 2000); Bologna, supra note 6, at 1581-82; Steve Cook, States Fault EPA Civil Rights Guidance as Vague, Lacking Definitions, Nonbinding, 31 Env't Rep. (BNA) 1778 (Aug. 25, 2000); States Agree to Condemn EPA's Draft Civil Rights Guidances, ENVTL. POL'Y ALERT 36, 36-37 (Aug. 23, 2000); accord JEROME BALTER, PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, THE U.S. ENVIRONMENTAL PROTECTION AGENCY DRAFT REVISED (EPA) GUIDANCE AND DRAFT RECIPIENT GUIDANCE 4 (July 21, 2000) (arguing that the Draft Revised Guidance "is essentially the same as the Interim Guidance") [hereinafter BALTER]; Our View, Two Years After Promising Fixes, EPA Continues to Stumble, USA TODAY, Aug. 29, 2000, at A14 (editorial criticizing EPA's draft guidance on Title VI).

8. See ECOS, supra note 7, at 1-3; States Agree to Condemn EPA's Draft Civil Rights Guidances, supra note 7, at 36-37.

9. See National Environmental Justice Advisory Council, Title VI Task Force, Comments on Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits and Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Aug. 26, 2000), at 3 & passim [hereinafter NEJAC]. The Center on Race, Poverty, & the Environment (CRPE) of the California Rural Legal Assistance Foundation filed a brief similar to NEJAC's that was signed by 63 current or past Title VI complainants and on behalf of more 125 groups. Luke Cole, chair of NEJAC's Title VI Task Force, is also director of CPRE. This Article will only cite to the NEJAC brief.

10. See Bologna, supra note 6, at 1581-82 (reporting comments of Anne Goode, director of OCR); accord BALTER, supra note 7, at 4 (arguing that the Draft Recipient Guidance is more helpful to environmental civil rights than the Revised Investigation Guidance).

11. See ECOS, supra note 7, at 3; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of the Draft Recipient Guidance); States Agree to Condemn EPA's Draft Civil Rights Guidances, supra note 7, at 37.

12. See NEJAC, supra note 9, at 4.

13. See John McQuaid, Environmental Justice Revisited in EPA Plan, NEW ORLEANS TIMES-PICAYUNE, June 20, 2000, at A1; Environmental Justice: Hostility, Skepticism Meet EPA Interim Title VI Guidance at Initial Comment Session, Daily Env't Rep. (BNA) June 27, 2000, at A-9 (reporting that Anne Goode stated at a public comment session in Washington, D.C., that a causal link must be established scientifically between permit action challenged in Title VI complaint and a harmful effect using best available data).

14. See ECOS, supra note 7, at 2.

15. See McQuaid, supra note 13, at A1; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, ENVTL. POL'Y ALERT, June 28, 2000, at 30-31; infra notes 314-16 and accompanying text.

16. See McQuaid, supra note 13, at A1; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31; infra notes 426-32 and accompanying text.

17. See ECOS, supra note 7, at 1-6.

18. See Guidances, supra note 2, at 39651; BALTER, supra note 7, at 3-4; infra notes 184-86 and accompanying text.

19. See McQuaid, supra note 13, at A1; Hostility, Skepticism Meet EPA Interim Title VI Guidance at Initial Comment Session, supra note 13, at A-9 (reporting negative comments of Jerome Balter, an attorney with the Public Interest Law Center of Philadelphia, at a public comment session in Washington, D.C.); New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31; infra notes 317-19 and accompanying text.

20. See BALTER, supra note 7, at 4; McQuaid, supra note 13, at A1; Hostility, Skepticism Meet EPA Interim Title VI Guidance at Initial Comment Session, supra note 13, at A-9 (reporting negative comments of Jerome Balter, an attorney with the Public Interest Law Center of Philadelphia, at a public comment session in Washington, D.C.); New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31; infra notes 426-32 and accompanying text.

21. See Kenneth J. Warren, EPA Addresses Environmental Justice, LEGAL INTELLIGENCER, Aug. 17, 2000, at 5.

22. See Guidances, supra note 2, at 39650, 39654 (listing six locations for public listening sessions: Washington, D.C.; Dallas; Chicago; New York City; Los Angeles; and Oakland); see also Office of Civil Rights, U.S. EPA, What's New? (last modified July 27, 2000) http://www.epa.gov/civilrights/new.htm (observing that EPA added Philadelphia as seventh public listening location).

23. See Guidances, supra note 2, at 39650; Bologna, supra note 6, at 1581-82 (reporting comments of Anne Goode, director of OCR); OFFICE OF CIVIL RIGHTS, U.S. EPA, DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS 3 (June 2000) (available at http://www.epa.gov/civilrights under the "what's new" icon).

24. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, § 1-101, 3 C.F.R. § 859 (1995), reprinted in 42 U.S.C. § 4321, ADMIN. MAT. 45075; see generally Bradford C. Mank, Executive Order 12898, in THE LAW OF ENVIRONMENTAL JUSTICE 103 (Michael Gerrard ed. 1999).

25. See Presidential Memorandum Accompanying Executive Order 12898, 30 WEEKLY COMP. PRES. DOC. 279, 280 (Feb. 11, 1994); Mank, Executive Order 12898, supra note 24, at 107.

26. Section 601 of the statute provides that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 601-605, 78 Stat. 241, 252-53, 42 U.S.C. § 2000d; Bradford C. Mank, Title VI, in THE LAW OF ENVIRONMENTAL JUSTICE 23-25 (Michael Gerrard ed. 1999) [hereinafter Mank, Title VI].

27. 42 U.S.C. § 2000d-1; Mank, Title VI, supra note 26, at 25; Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations?, 24 COLUM. J. ENVTL. L. 1, 12 (1999) [hereinafter Mank, Private Cause of Action].

28. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 618 (1983) (Marshall, J.) (recipients may not use "'criteria or methods of administration which have the effect of subjecting individuals to discrimination'" (quoting 45 C.F.R. § 80.3(b)(2) (1964)); Guardians, 463 U.S. at 592 n.13 (White, J.) (observing "every Cabinet department and about forty agencies adopted Title VI regulations prohibiting disparate-impact discrimination."); see Mank, Private Cause of Action, supra note 27, at 13; Mank, Title VI, supra note 26, at 25; Paul K. Sonn, Fighting Minority Underrepresentation in Publicly Funded Construction Projects After Croson: A Title VI Litigation Strategy, 101 YALE L.J. 1577, 1581 n.25 (1992) (listing Title VI regulations for several federal agencies).

29. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), §§ 2(2), 6 (codified at 20 U.S.C. § 1687(2)(A), 42 U.S.C. § 2000d-4a) (overruling Grove City College v. Bell, 465 U.S. 555 (1984)).

30. "A recipient [of federal funds] shall not use criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin." 40 C.F.R. § 7.35(b); see generally 38 Fed. Reg. 17968 (July 5, 1973), as amended 49 Fed. Reg. 1656 (Jan. 12, 1984) (codified at 40 C.F.R. pt. 7)); Mank, Private Cause of Action, supra note 27, at 17; Mank, Title VI, supra note 26, at 25-26.

31. See 28 C.F.R. § 42.410; Mank, Private Cause of Action, supra note 27, at 17; Mank, Title VI, supra note 26, at 26.

32. See 40 C.F.R. § 7; James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 STAN. ENVTL. L.J. 125, 128 (1994); Mank, Title VI, supra note 26, at 27-29.

33. See Mank, Private Cause of Action, supra note 27, at 17; Mank, Title VI, supra note 26, at 26.

34. See Mank, Private Cause of Action, supra note 27, at 18; Mank, Title VI, supra note 26, at 26.

35. See Mank, Private Cause of Action, supra note 27, at 18; Mank, Title VI, supra note 26, at 26.

36. See U.S. EPA, STATUS SUMMARY TABLE OF EPA ADMINISTRATIVE COMPLAINTS (06/29/00) (available at http://www.epa.gov/civilrights/t6complnt.htm under "Summary Information on Title VI Complaints Filed With EPA").

37. See id.; see generally 40 CFR § 7.115(c)(1) (stating that EPA will issue preliminary findings within 180 days from start of complaint).

38. See U.S. EPA, TITLE VI COMPLAINTS FILED WITH EPA (available at http://www.epa.gov/civilrights/t6complnt.htm under "List of Title VI Complaints Filed With EPA").

39. DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS, supra note 23, at 6 (Question 20).

40. ECOS, supra note 7, Environmental Justice Resolution (as approved by the Cross Media Committee on Aug. 14, 2000).

41. See 40 C.F.R. § 7.120; Luke W. Cole, Civil Rights, Environmental Justice and the EPA: A Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. ENVTL. L. & LITIG. 309, 314-15, 319 (1994); Mank, Private Cause of Action, supra note 27, at 20; Mank, Title VI, supra note 26, at 27.

42. See 40 C.F.R. § 7.120(d)(1); Cole, supra note 41, at 316-17; Mank, Private Cause of Action, supra note 27, at 20-21; Mank, Title VI, supra note 26, at 27.

43. See 40 C.F.R. § 7.120(d)(2); Cole, supra note 41, at 316-17; Mank, Private Cause of Action, supra note 27, at 21; Mank, Title VI, supra note 26, at 27.

44. See 40 C.F.R. § 7.115(a) (authorizing EPA's OCR to conduct compliance reviews, including the request of information and on-site reviews); Cole, supra note 41, at 321; Julie Domike & Arthur W. Ray, EPA, Courts Focus on Title VI Issues in Locating Industrial Plants in Low-Income Areas, NAT'L L.J., Dec. 1, 1997, at C1; Mank, Private Cause of Action, supra note 27, at 22; Mank, Title VI, supra note 26, at 28.

45. Mank, Title VI, supra note 26, at 27-28.

46. See infra notes 270-71 and accompanying text.

47. See 40 C.F.R. § 7.130(a); Guidances, supra note 2, at 39669.

48. See 40 C.F.R. § 7.130(b)(1)-(3); Cole, supra note 41, at 317-18; Mank, Private Cause of Action, supra note 27, at 21; Mank, Title VI, supra note 26, at 28; Colopy, supra note 32, at 129, 155.

49. See 40 C.F.R. § 7.130(b)(3)(iii); 42 U.S.C. § 2000d-1; Cole, supra note 41, at 317-18; Mank, Private Cause of Action, supra note 27, at 21; Mank, Title VI, supra note 26, at 28; Colopy, supra note 32, at 129, 155.

50. See Guidances, supra note 2, at 39668; Mank, Private Cause of Action, supra note 27, at 21-22; Mank, Title VI, supra note 26, at 28; Colopy, supra note 32, at 155.

51. See Guidances, supra note 2, at 39669; infra notes 426-32 and accompanying text.

52. See Cannon v. University of Chicago, 441 U.S. 677, 715 (1979) (suggesting that Title VI generally does not allow private suits against the federal government); Mank, Private Cause of Action, supra note 27, at 22; Mank, Title VI, supra note 26, at 29; Colopy, supra note 32, at 168-71.

53. See generally Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) (holding private right-of-action under disparate impact regulations issued pursuant to § 602 of Title VI), cert. granted, Alexander v. Sandoval, 2000 WL 718812, 2000 LEXIS 4860 (U.S. Sept. 26, 2000); Poweil v. Ridge, 189 F.3d 387 (3d Cir. 1999) (same), cert. denied, No. 99-574, 1999 WL 812341 (U.S. Dec. 6, 1999); Mank, Private Cause of Action, supra note 27, at passim; Guidances, supra note 2, at 39671 n.77 (raising issue of private right-of-action).

54. See generally BALTER, supra note 7, at 7 (arguing EPA guidance will make it more difficult for plaintiffs to bring private enforcement actions because of complexity of proof).

55. The Agency set forth a five-step process for evaluating whether a recipient's approval or renewal of a permit will create disparate impacts: (1) identifying the affected population, especially those in close proximity to the facility; (2) determining the demographics of the affected population through mapping technology such as geographic information systems (GIS); (3) determining the universe(s) of facilities and total affected population(s), especially the cumulative pollution burden of neighboring facilities; (4) conducting a disparate impact analysis by both examining the racial or ethnic composition within the affected population and by comparing that composition to non-affected populations in other relevant areas; and (5) determining the significance of the disparity through the use of standard statistical methods. See INTERIM GUIDANCE, supra note 1, at 9-12; Mank, Title VI, supra note 26, at 40-45; Bradford C. Mank, Environmental Justice and Title VI: Making Recipient Agencies Justify Their Siting Decisions, 73 TUL. L. REV. 787, 795-98 (1999) [hereinafter Mank, Recipient Agencies].

56. See INTERIM GUIDANCE, supra note 2, at 11-12; Mank, Title VI, supra note 26, at 43-44.

57. See, e.g., Gerald H. Yamada, Environmental Justice "Guidelines" Avoid Due Process Safeguards, 9 WASH. LEGAL FOUND. LEGAL OPINION LETTER No. 17, (May 28, 1999) (available in LEXIS News Group File, n.p.).

58. See generally Guidances, supra note 2, at 39688-758.

59. See Guidances, supra note 2, at 39651, 39692; Cheryl Hogue, Comments on Title VI Guidance Seek Clearer Definitions, Input From More Parties, 29 Env't Rep. (BNA) 234, 234 (May 22, 1998) [hereinafter Hogue, Comments on Title VI Guidance]; Mank, Title VI, supra note 26, at 44; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30.

60. See Environmental Justice: Draft Revised Civil Rights Guidance Clarifies Definitions, Addresses State Issues, 31 Env't Rep. (BNA) 1331 (June 23, 2000).

61. Paul Connolly, Environmental Justice: Mayors RAP EPA at Meeting With Browner for Failure to Consult on Interim Guidance, 29 Env't Rep. (BNA) 658 (July 24, 1998); Jeffrey B. Gracer, Taking Environmental Justice Claims Seriously, 28 ELR 10373, 10375 (July 1998); Mank, Title VI, supra note 26, at 44.

62. See New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30.

63. See Angela M. Baggetta, Environmental Justice: Black Caucus, EPA to Meet on Shintech; Dispute May Be Test Case on Title VI Suits, Daily Env't Rep. (BNA), July 21, 1998, at A-1; Luke W. Cole & Richard Moore, Attacks on EPA Unfair, USA TODAY, July 20, 1998, at 14A; Bradford C. Mank, Reforming State Brownfield Programs to Comply With Title VI, 24 HARV. ENVTL. L. REV. 115, 143-45, 153 (2000) [hereinafter Mank, Reforming State Brownfield Programs]; Mank, Title VI, supra note 26, at 38, 40, 44.

64. See DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS, supra note 23, at 6 (Question 19); Appropriations Act for Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies for Fiscal Year Ending September 30, 1999, Pub. L. No. 105-276, 112 Stat. 2461, tit. III (1998).

65. See Mank, Recipient Agencies, supra note 55, at 810.

66. See SCIENCE ADVISORY BOARD, No. EPA-SAB-IHEC-99-007, AN SAB REPORT: REVIEW OF DISPROPORTIONATE IMPACT METHODOLOGIES; A REVIEW BY THE INTEGRATED HUMAN EXPOSURE COMMITTEE (IHEC) OF THE SCIENCE ADVISORY BOARD (SAB) 3 (Dec. 1998) (available at http://www.epa.gov/civilrights/investig.htm) [hereinafter SAB REPORT]; see also Cheryl Hogue, SAB Recommends Steps for EPA in Analyses of Disproportionate Impacts, 29 Env't Rep. (BNA) 1310, 1310-11 (Oct. 30, 1998).

67. See Guidances, supra note 2, at 39651.

68. Id.

69. See TITLE VI IMPLEMENTATION ADVISORY COMMITTEE REPORT OF THE TITLE VI IMPLEMENTATION ADVISORY COMMITTEE, NEXT STEPS FOR EPA, STATE, AND LOCAL ENVIRONMENTAL JUSTICE PROGRAMS (1999) [hereinafter REPORT OF THE TITLE VI ADVISORY COMMITTEE]; Guidances, supra note 2, at 39652.

70. REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 11-13, 33 ("early intervention reduces the possibility that delays will cost industry time, money, and even a competitive advantage in the siting of new and existing facilities."); Mank, Reforming State Brownfield Programs, supra note 63, at 172, 176-78.

71. See REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 21, 43-44; Mank, Reforming State Brownfield Programs, supra note 63, at 141-42 (discussing EPA's growing efforts to address risk of cumulative and multiple sources of pollution).

72. REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 5-10; Cheryl Hogue, Environmental Justice: Title VI Advisory Panel Sets Out Issues, Gives No Recommendations, 29 Env't Rep. (BNA) 2188 (Mar. 5, 1999).

73. Guidances, supra note 2, at 39651.

74. Id.

75. See Mank, Title VI, supra note 26, at 45-48.

76. See id. at 47.

77. See id. at 48.

78. See infra notes 376, 378 and accompanying text.

79. See Letter from Ann E. Goode, Director, EPA's Office of Civil Rights, RE: EPA File No. 5R-98-R5 (Select Steel Complaint) to St. Francis Prayer Center [Complainant] and Michigan Department of Environmental Quality [Recipient] (Oct. 30, 1998) (dismissing Title VI complaint against Michigan Department of Environmental Quality); Luke W. Cole, Wrong on the Facts, Wrong on the Law, 29 ELR 10775 (Dec. 1999) (criticizing EPA's dismissal of Select Steel complaint); Mank, Title VI, supra note 26, at 48-50.

80. See Cheryl Hogue, Draft Revision of Guidance for Processing Civil Rights Complaints Expected Mid-1999, 29 Env't Rep. (BNA) 1807 (Jan. 15, 1999) (reporting opinion of Prof. Richard Lazarus, a member of EPA's Title VI Implementation Advisory Committee, that Select Steel suggests that compliance with appropriate health-based standards will usually defeat a Title VI claim); Mank, Title VI, supra note 26, at 47-48; but see Cole, Wrong on the Facts, Wrong on the Law, supra note 79 (arguing Michigan was not actually in compliance with NAAQS and that even if it were in compliance then it was inappropriate to assume such compliance necessarily precluded Title VI claim).

81. See ECOS, supra note 7, at 4; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of the draft guidance).

$=S

82. All persons regardless of race, color, or national origin are entitled to a safe and bealthful environment; Strong civil rights enforcement is essential; Enforcement of civil rights laws and environmental laws are complementary, and can be achieved in a manner consistent with sustainable economic development; Potential adverse cumulative impacts from stressors should be assessed, and reduced or eliminated wherever possible; Research efforts by EPA and state and local environmental agencies into the nature and magnitude of exposures, stressor hazards, and risks are important and should be continued; Decreases in environmental impacts through applied pollution prevention and technological innovation should be encouraged to prevent, reduce, or eliminate adverse disparate impacts; Meaningful public participation early and throughout the decision-making process is critical to identify and resolve issues, and to assure proper consideration of public concerns; 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; Use of informal resolution techniques in disputes involving civil rights or environmental issues yield the most desirable results for all involved. Intergovernmental and innovative problem-solving provide the most comprehensive response to many concerns raised in Title VI complaints.

See Guidances, supra note 2, at 39656, 39669.

83. See id. at 39669.

84. See id. at 39655-56.

85. See id. at 39656.

86. See id. at 39651.

87. See id. at 39652, 39656.

88. Id. at 39656.

89. See id. at 39656-57.

90. Id. at 39657.

91. Id.

92. See ECOS, supra note 7, at 3; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of Draft Recipient Guidance); States Agree to Condemn EPA's Draft Civil Rights Guidances, supra note 7, at 37.

93. Guidances, supra note 2, at 39657.

94. Id.

95. Id.

96. Id.

97. Id.; see generally Bradford C. Mank, The EPA's Project XL and Other Regulatory Reform Initiatives: The Need for Legislative Authorization, 25 ECOLOGY L.Q. 1, 7-9 (1998) (discussing advantages of multimedia pollution control).

98. Guidances, supra note 2, at 39657.

99. Id.

100. Id.

101. Id.

102. Id.

103. Id. at 39657-58.

104. REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 11-13, 33 ("early intervention reduces the possibility that delays will cost industry time, money, and even a competitive advantage in the siting of new and existing facilities."); Mank, Reforming State Brownfield Programs, supra note 63, at 172, 176-78.

105. Guidances, supra note 2, at 39658.

106. Id.

107. Id.

108. EPA noted that the U.S. Department of Justice (DOJ) has published a regulation discussing the factors recipients should consider when determining whether translation for limited English speaking populations is necessary. See Guidances, supra note 2, at 39658 n.12 (citing "Coordination of Enforcement of Non-Discrimination in Federally Assisted Programs," 28 C.F.R. subpt. F. specifically, § 42.405(d)(1)).

109. Guidances, supra note 2, at 39658 (citing Lau v. Nichols, 414 U.S. 563 (1974); 40 C.F.R. § 7.35(b) ("[a] recipient shall not use criteria or methods of administering its program which . . . have the effect of defeating or substantially impairing accomplishment of the objective of the program with respect to individuals of a particular race, color, [or] national origin."). After the guidances were published, President Clinton issued Executive Order No. 13166, which requires federal agencies to ensure that recipients of federal assistance provide "meaningful access" to persons with limited English proficiency, and the DOJ issued a policy guidance document clarifying the duty of recipients to provide such access under Title VI. See generally, Improving Access to Services for Persons With Limited English Proficiency, Exec. Order No. 13166, 65 Fed. Reg. 50121 (Aug. 16, 2000); U.S. DOJ, Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons With Limited English Proficiency; Policy Guidance, 65 Fed. Reg. 50123 (Aug. 16, 2000).

110. See OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, No. EPA-500-R-00-007, PUBLIC INVOLVEMENT IN ENVIRONMENTAL PERMITS: A REFERENCE GUIDE (Aug. 2000) (available at http://www.epa.gov/permits).

111. See NEJAC, supra note 9, at 60-66.

112. Guidances, supra note 2, at 39659.

113. Id. at 39659-60.

114. Id. at 39659.

115. Id.

116. Id.

117. Id. at 39660-61.

118. See infra notes 290-394 and accompanying text.

119. Guidances, supra note 2, at 39660; see generally Mank, Reforming State Brownfield Programs, supra note 63, at 159-71 (discussing a range of less expensive approaches to identify potential high risk areas).

120. Guidances, supra note 2, at 39660.

121. Id. at 39661.

122. Id.

123. Id.; see generally Mank, Project XL, supra note 97, at 7-9 (discussing limitations of current single-medium statutes and arguing advantages of multimedia pollution control).

124. Guidances, supra note 2, at 39661.

125. See infra notes 339-91 and accompanying text.

126. See BALTER, supra note 7, at 7.

127. See generally Mank, Reforming State Brownfield Programs, supra note 63, at 159-71 (discussing a range of less expensive approaches to identify potential high risk areas).

128. See BALTER, supra note 7, at 8-10.

129. Guidances, supra note 2, at 39699.

130. Id. at 39662.

131. Id.

132. See ECOS, supra note 7, at 5.

133. Guidances, supra note 2, at 39662.

134. Id.

135. See NEJAC, supra note 9, at 20-27; Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1549-1550 (1991) (informal methods of dispute resolution often harm women because it disfavors those who are more willing to consider interests of the other party); Bradford C. Mank, The Two-Headed Dragon of Siting and Cleaning Up Hazardous Waste Sites: Can Economic Incentives or Mediation Slay the Monster, 19 B.C. ENVTL. AFF. L. REV. 239, 280-81 (1991) (arguing that those with greater resources and expertise have an advantage in the mediation process) [hereinafter Mank, Two-Headed Dragon].

136. See NEJAC, supra note 9, at 25; Mank, Two-Headed Dragon, supra note 135, at 280-81.

137. See NEJAC, supra note 9, at 24-25; Mank, Two-Headed Dragon, supra note 135, at 280-81.

138. See ECOS, supra note 7, at 5.

139. Guidances, supra note 2, at 39662-63.

140. Id. at 39662.

141. See NEJAC, supra note 9, at 29-30; infra notes 421-23 and accompanying text.

142. Guidances, supra note 2, at 39663.

143. See id. at 39674-75.

144. See Guidances, supra note 2, at 39663; REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 26-29; Mank, Reforming State Brownfield Programs, supra note 63, at 181-84 (discussing proposals by state government officials for EPA to give greater deference in Title VI disputes to state agencies with programs that encourage public involvement in permitting process and arguing that only limited deference is appropriate).

145. See EPA Plans Strong Deference to State Environmental Justice Programs, ENVTL. POL'Y ALERT, Oct. 20, 1999, at 31-32; Mank, Reforming State Brownfield Programs, supra note 63, at 180.

146. See Guidances, supra note 2, at 39653, 39663 (citing 28 C.F.R. § 50.3(b) ("Primary responsibility for prompt and vigorous enforcement of Title VI rests with the head of each department and agency administering programs of Federal financial assistance."); Memorandum from Bill Lann Lee, Acting Assistant Attorney General, U.S. Department of Justice, to Executive Agency Civil Rights Directors (Jan. 28, 1999) (title Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs) ("It is important to remember that Federal agencies are responsible for enforcing the nondiscrimination requirements that apply to recipients of assistance under their programs.").

147. See Guidances, supra note 2, at 39653, 39663.

148. See id. at 39663.

149. See id. at 39653, 39663-64, 39675-76.

150. See id. at 39653.

151. See id.

152. See id. at 39653, 39663-64.

153. See id. at 39663-64, 39675-76.

154. See Eileen Gauna, Comments on Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, July 27, 2000, at 3-4: NEJAC, supra note 9, at 36.

155. Institute for Public Representation, Georgetown University Law Center, Widener University Environmental and Natural Resources Law Clinic & Mid-Atlantic Environmental Law Center, Comments on Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, Aug. 28, 2000, at 7-9 [hereinafter Institute for Public Representation].

156. See Golden Gate University School of Law, Environmental Law & Justice Clinic, Comments on Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, Aug. 28, 2000, at 7 [hereinafter Golden Gate]; Institute for Public Representation, supra note 155, at 8-9; NEJAC, supra note 9, at 37.

157. See Golden Gate, supra note 156, at 6-7; NEJAC, supra note 9, at 37.

158. See ECOS, supra note 7, at 2-3.

159. See id. at 5.

160. See Guidances, supra note 2, at 39663-64.

161. See supra notes 108-09 and accompanying text.

162. See Guidances, supra note 2, at 39663-64 (citing U.S. EPA, Proposal Guidelines for Brownfields Assessment Demonstration Projects (Oct. 1999).

163. See Guidances, supra note 2, at 39664; see generally Mank, Reforming State Brownfield Programs, supra note 63, at 183-84 (arguing EPA should give limited deference to states with good public participation programs).

164. See generally ECOS, supra note 7, at 2-3.

165. See NEJAC, supra note 9, at 60-61; Mank, Reforming State Brownfield Programs, supra note 63, at 181-83 (arguing public participation does not guarantee fairness).

166. See Guidances, supra note 2, at 39650-51, 39668-69. The Revised Investigation Guidance contains the same Glossary of Terms found in the Recipient Guidance. See Guidances, supra note 2, at 39684-86 (Appendix A). In addition, the Revised Investigation Guidance includes a flowchart that delineates the steps of the Title VI process in 40 C.F.R. part 7. See id. at 39686-88 (Appendix B).

167. See id.

168. See id. at 39669; Anne E. Goode, director of OCR, & Kathy Gorospe, director of American Indian Environmental Office, Letter to Tribal Leaders Consulting With Tribes About Title VI (Mar. 11, 1999).

169. See NEJAC, supra note 9, at 6.

170. See Guidances, supra note 2, at 39650-51, 39668-69.

171. See id. at 39669.

172. See Philip Weinberg, Equal Protection, in THE LAW OF ENVIRONMENTAL JUSTICE 3-22 (Michael Gerrard ed. 1999). However, EPA's administrative appellate court has required the Agency as a matter of policy under Executive Order No. 12898 to use its discretionary statutory authority to consider environmental justice arguments, and, thus, the Agency's internal review processes may in some cases address whether EPA itself is in compliance with Title VI. See generally In re Chemical Waste Management, Inc., 6 E.A.D. 66, ELR ADMIN. MAT. 40392 (EPA EAB June 29, 1995) (holding that EPA as a matter of policy should exercise its discretion under the Resource Conservation and Recovery Act's omnibus clause to address environmental justice issues); Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice in EPA Permitting Authority, 26 ECOLOGY L.Q. 617 (1999) (discussing Executive Order No. 12898 and several federal environmental statutes containing broad discretionary terms that EPA could use to address environmental justice issues).

173. See Guidances, supra note 2, at 39670-71.

174. See NEJAC, supra note 9, at 7-8.

175. See Guidances, supra note 2, at 39670.

176. See BNEJ, supra note 7, at 2, 22-24.

177. NEJAC, supra note 9, at 9.

178. See Guidances, supra note 2, at 39652, 39670; see generally 40 C.F.R. §§ 7.120(a)-(b) (discussing basic requirements for acceptable complaint) and 7.125 (defining term "recipient").

179. See Guidances, supra note 2, at 39670; see generally 40 C.F.R. § 7.125 (defining term "recipient")

180. See NEJAC, supra note 9, at 9.

181. See Guidances, supra note 2, at 39652, 39670.

182. See ECOS, supra note 7, at 4-5; see generally BNEJ, supra note 7, at 11-14 (arguing that EPA should not examine individual permits at all, or, alternatively, should only examine permits that cause significant net increases).

183. See Guidances, supra note 2, at 39653, 39676; DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS, supra note 23, at 6 (Question 18).

184. See Guidances, supra note 2, at 39669, 39683.

185. See ECOS, supra note 7, at 3-4; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of the draft guidance).

186. See NEJAC, supra note 9, at 27-29.

187. See Guidances, supra note 2, at 39652.

188. See id.

189. See id.

190. See id. at 39670.

191. See id.

192. See NEJAC, supra note 9, at 9.

193. See Cole, Wrong on the Facts, Wrong on the Law, supra note 79; supra notes 38-41 and accompanying text (discussing Agency's backlog of cases dating to 1993 and 1994).

194. See NEJAC, supra note 9, at 9.

195. See infra notes 317-19 and accompanying text.

196. See Guidances, supra note 2, at 39671.

197. See id.; 40 C.F.R. § 7.115(c).

198. See Guidances, supra note 2, at 39671; 40 C.F.R. §§ 7.115(c)-(e), 7.130(b).

199. See Guidances, supra note 2, at 39671; 40 C.F.R. §§ 7.115(d), 7.130(b).

200. See Guidances, supra note 2, at 39671; 40 C.F.R. §§ 7.85(b), (f).

201. See Guidances, supra note 2, at 39671-74.

202. See NEJAC, supra note 9, at 9.

203. See ECOS, supra note 7, at 4.

204. See Guidances, supra note 2, at 39672.

205. See id.

206. See id. at 39663.

207. See BALTER, supra note 7, at 5-6 (arguing complexity of proving adverse disparate impact Title VI complaint would require expert and legal assistance rarely available to minority communities); Mank, Recipient Agencies, supra note 55, at 834-39 (arguing EPA or states should provide Title VI complainants with technical assistance grants); NEJAC, supra note 9, at 61-62 (same).

208. See Mank, Title VI, supra note 26, at 47.

209. See Guidances, supra note 2, at 39672.

210. See supra notes 49-51 and accompanying text.

211. See supra note 54 and accompanying text.

212. See Guidances, supra note 2, at 39672; 40 C.F.R. §§ 7.15, 7.120, 7.125.

213. 40 C.F.R. § 7.120(b)(1).

214. Within 20 days, the OCR will determine whether the entity that made the alleged discriminatory act is in fact an EPA recipient. See Guidances, supra note 2, at 39672 n.87; 40 C.F.R. § 7.25.

215. See Guidances, supra note 2, at 39672; 40 C.F.R. § 7.120(b)(1).

216. See Guidances, supra note 2, at 39672; 40 C.F.R. § 7.120(b)(2); see also section III.B. (discussing timeliness of complaints).

217. See Guidances, supra note 2, at 39672 n.90; 40 C.F.R. § 7.120(a).

218. See Guidances, supra note 2, at 39670, 39672; see generally 40 C.F.R. § 7.125 (defining term "recipient").

219. See Guidances, supra note 2, at 39672; 40 C.F.R. §§ 7.110, 7.115.

220. See NEJAC, supra note 9, at 34.

221. See BNEJ, supra note 7, at 22; ECOS, supra note 7, at 4.

222. See 40 C.F.R. § 7.120(a) (emphasis added); NEJAC, supra note 9, at 12.

223. NEJAC, supra note 9, at 11 (18 of 43 complaints were rejected because EPA did not provide financial assistance).

224. See Guidances, supra note 2, at 39671.

225. See id.

226. See id. at 39672.

227. See NEJAC, supra note 9, at 13-14.

228. See id. at 13-16.

229. See Guidances, supra note 2, at 39673.

230. See, e.g., ECOS, supra note 7, at 4; NEJAC, supra note 9, at 16-17.

231. See Guidances, supra note 2, at 39673.

232. See Institute for Public Representation, supra note 155, at 6-7; NEJAC, supra note 9, at 17-18.

233. See BNEJ, supra note 7, at 24-26. Several decisions have held that a Title VI plaintiff need not first exhaust its administrative remedies. See Cannon v. University of Chicago, 441 U.S. 677, 707 n.41 (1979) ("We are not persuaded that individual suits are inappropriate in advance of exhaustion of administrative remedies."); Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012, 1015 (6th Cir. 1989) ("[Courts] squarely hold that litigants need not exhaust their administrative remedies prior to bringing a Title VI claim in federal court."); Chowdbury v. Reading Hosp. & Medical Ctr., 677 F.2d 317, 322-23 (3d Cir. 1982) (exhaustion of agency funding termination procedures not a necessary prerequisite to private action for injunctive relief); Mank, Private Cause of Action, supra note 26, at 56-57 & nn. 330-331 (1999); but see Wrenn v. Kansas, 561 F. Supp. 1216, 1222 (D. Kan. 1983) (requiring Title VI plaintiffs to exhaust administrative remedies before seeking redress in federal court).

234. See Guidances, supra note 2, at 39673.

235. See id.

236. See id.

237. See id. at 39652, 39673 (emphasis added).

238. See generally Mank, Recipient Agencies, supra note 55, at 798-809 (discussing federal court case law on Title VI and VII).

239. See NEJAC, supra note 9, at 18-19.

240. See Guidances, supra note 2, at 39652, 39673.

241. See id.

242. See Institute for Public Representation, supra note 155, at 5; NEJAC, supra note 9, at 19-20.

243. See Guidances, supra note 2, at 39673.

244. See Golden Gate, supra note 156, at 5-6; NEJAC, supra note 9, at 20-23; Mank, Two-Head Dragon, supra note 135, at 280-81.

245. See NEJAC, supra note 9, at 24-25; Mank, Two-Head Dragon, supra note 135, at 280-81.

246. See ECOS, supra note 7, at 5.

247. See BNEJ, supra note 7, at 34-35.

248. See supra note 183 and accompanying text.

249. See Guidances, supra note 2, at 39673.

250. See id. at 39653, 39674.

251. See id.

252. See id. at 39653; supra notes 140-41 and accompanying text.

253. See Guidances, supra note 2, at 39653, 39674.

254. See id. at 39653.

255. Id. at 39657, 39674-75.

256. See id. at 39651, 39653, 39657, 39662, 39674; supra notes 94-99, 151-54, and accompanying text.

257. See REPORT OF THE TITLE VI ADVISORY COMMITTEE, supra note 69, at 30-31, 43-44; Mank, Reforming State Brownfield Programs, supra note 63, at 159-61.

258. See Guidances, supra note 2, at 39674.

259. See id. at 39663-64, 39675-76; supra note 154 and accompanying text.

260. See Guidances, supra note 2, at 39674.

261. See id. at 39653.

262. See id. at 39674.

263. See id.

264. See id.

265. See NEJAC, supra note 9, at 29-30; supra notes 142, 156, and infra notes 421-23 and accompanying text.

266. See NEJAC, supra note 9, at 32-34; supra notes 157-58, and infra notes 422-23 and accompanying text.

267. See Guidances, supra note 2, at 39674.

268. See id. at 39676.

269. See id. at 39653, 39674.

270. See id. at 39674.

271. See NEJAC, supra note 9, at 34.

272. See ECOS, supra note 7, at 4.

273. See Guidances, supra note 2, at 39674-75.

274. See supra notes 144-66 and accompanying text.

275. See Guidances, supra note 2, at 39675-76.

276. See id.

277. See id. at 39675.

278. See id. at 39675-76.

279. See supra notes 155-60, 165-66, and accompanying text.

280. See Gauna, supra note 154, at 4-5.

281. See Guidances, supra note 2, at 39653, 39676.

282. See id. at 39652-53, 39676.

283. See id.

284. See id.

285. See id. at 39654.

286. Compare id. at 39676 (using "totality of circumstances" test) with INTERIM GUIDANCE, supra note 1, at 9 (using "totality of circumstances" test); Mank, Title VI, supra note 26, at 42 (discussing Interim Guidance's "totality of circumstances" test).

287. See Guidances, supra note 2, at 39654.

288. See id. at 39682.

289. See id. at 39654, 39676-77.

290. See id. at 39676-77.

291. See id. at 39677 & n.114 (citing 40 C.F.R. § 7.120).

292. Our View, Two Years After Promising Fixes, EPA Continues to Stumble, USA TODAY, Aug. 29, 2000, at A14 (editorial criticizing EPA's draft guidance on Title VI) [hereinafter Two Years After Promising Fixes].

293. See Guidances, supra note 2, at 39677.

294. See id.

295. See id. at 39654, 39676-77.

296. See id. at 39677.

297. See id.

298. See id.

299. See id.

300. See id.

301. See id.

302. See id. (citing 40 C.F.R. §§ 7.110, 7.115).

303. See ECOS, supra note 7, at 5.

304. See BNEJ, supra note 7, at 11-14.

305. See Institute for Public Representation, supra note 155, at 9; NEJAC, supra note 9, at 42.

306. See Guidances, supra note 2, at 39677 (discussing criteria for area-specific agreements that would receive due weight).

307. See id. at 39654, 39676-77.

308. See id. at 39677 n.117.

309. See NEJAC, supra note 9, at 36-38.

310. See id. at 37.

311. See Guidances, supra note 2, at 39676-78.

312. See id. at 39678.

313. See id. at 39654, 39678.

314. See id. at 39678.

315. These could include laws and regulations that concern permitting programs and laws and regulations that involve broader, cross-cutting matters, such as state environmental policy acts. For example, a state statute might require all major state actions (including the issuance of certain air pollution control permits) to take into consideration impacts resulting from noise and odors associated with the action. Even if these were not explicitly covered by the permitting program, they would appropriately be considered as part of the adverse disparate impact analysis, since the recipient has some obligation or authority regarding them. A recipient need not have exercised this authority for the stressor or impact to be deemed within the recipient's authority to consider. See id.

316. See Golden Gate, supra note 156, at 9; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 31.

317. See NEJAC, supra note 9, at 44-47.

318. See, e.g., Institute for Public Representation, supra note 155, at 5-6; NEJAC, supra note 9, at 43-44.

319. See BNEJ, supra note 7, at 15-16; ECOS, supra note 7, at 4; Two Years After Promising Fixes, supra note 292.

320. See ECOS, supra note 7, at 5.

321. See Guidances, supra note 2, at 39678.

322. See id.

323. See id. at 39654, 39678.

324. See id. at 39678.

325. See id.

326. EPA defines "'regulated or permitted' sources [to] include those with permits, as well as those subject to Federal or state requirements for reporting of waste generation or emissions (e.g., Toxics Release Inventory reporters, Resource Conservation and Recovery Act hazardous waste generator sites)." See id. at 39678.

327. See id.

328. See id.

329. See id.

330. See id.

331. See id. at 39679.

332. The OCR is likely to give preference to data categories in the following approximate descending order: (1) ambient monitoring data; (2) modeled exposure concentrations or surrogates in various environmental media; (3) known releases of pollutants or stressors into the environment; (4) the manufacture, use, or storage of quantities of pollutants, and their potential for release; and (5) the existence of sources or activities associated with potential exposures to stressors (e.g., facilities that are generally likely to use significant quantities of toxic chemicals that could be routinely or catastrophically released; types of agricultural production usually associated with chemical application). See Guidances, supra note 2, at 39679. NEJAC's Title VI Task Force argues that the Agency "should move 'known releases of pollutants or stressors into the environment' into the top position on the hierarchy, certainly above modeled exposure concentrations." NEJAC, supra note 9, at 47.

333. See Guidances, supra note 2, at 39679; SAB REPORT, supra note 66.

334. See Guidances, supra note 2, at 39679.

335. See BALTER, supra note 7, at 5-6.

336. See BNEJ, supra note 7, at 27; ECOS, supra note 7, at 2.

337. See Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103, 117-23, 151-53; Mank, Reforming State Brownfield Programs, supra note 63, at 139-43.

338. See Guidances, supra note 2, at 39680.

339. See id.

340. See Institute for Public Representation, supra note 155, at 10; Kuehn, supra note 337, at 117-23, 151-53; Mank, Reforming State Brownfield Programs, supra note 63, at 139-43.

341. See Guidances, supra note 2, at 39680.

342. See Golden Gate, supra note 156, at 9-10.

343. See Guidances, supra note 2, at 39680.

344. See id.

345. See NEJAC, supra note 9, at 48.

346. See Guidances, supra note 2, at 39680.

347. See id.

348. See id.

349. See ECOS, supra note 7, at 4; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of the draft guidance).

350. See Cole, Wrong on the Facts, Wrong on the Law, supra note 79; Golden Gate, supra note 156, at 10-11; Institute for Public Representation, supra note 155, at 11; NEJAC, supra note 9, at 48-53.

351. See Institute for Public Representation, supra note 155, at 11.

352. See Guidances, supra note 2, at 39681.

353. See id.

354. See id.

355. See id. at 39681 n.130.

356. See ECOS, supra note 7, at 4; Cook, supra note 7, at 1778 (reporting ECOS' criticisms of the draft guidance).

357. See Guidances, supra note 2, at 39654, 39681.

358. See id. at 39681-82.

359. See id. at 39654, 39681-82.

360. See ECOS, supra note 7, at 4.

361. See Guidances, supra note 2, at 39681.

362. See id. at 39681 n.132.

363. See id. at 39681.

364. See id.

365. See id.

366. See BNEJ, supra note 7, at 17 (criticizingthe Revised Investigation Guidance's use of a proximity model for defining "affected population"); see generally Mank, Reforming State Brownfield Programs, supra note 63, at 159-60 (discussing strength and weaknesses of different approaches to measuring disparate impacts, including proximity or radius approaches); but see Public Interest Law Center of Philadelphia, Environmental Justice Protocol, (proposed Oct. 1, 1998) (proposing radius approach for measuring affected population).

367. See Guidances, supra note 2, at 39681.

368. See id.

369. See id.

370. See id.

371. See id.

372. See id.

373. See id.

374. See id.

375. See id. at 39681 n.134 (citing Draft Revised Demographic Information, Title VI Administrative Complaint re: Louisiana Department of Environmental Quality/Permit for Proposed Shintech Facility, April 1998 (Shintech Demographic Information, April 1998) (Facility Distribution Charts D1 through D40 found at http://www.epa.gov/civilrights/shinfileapr98.htm)).

376. These values approximate the outlying portions (sometimes called the "tails") of a distribution of risk that are beyond two standard deviations of the mean value. See Guidances, supra note 2, at 39681-82 n. 135.

377. See id. at 39682 n.136 (citing Shintech Demographic Information, April 1998, the last column in Tables A1 through B7, found at http://www.epa.gov/civilrights/shinfileapr98.htm).

378. See Guidances, supra note 2, at 39682 n.137 (citing Shintech Demographic Information, April 1998, last column in Tables C I through C5 found at http://www.epa.gov/civilrights/shinfileapr98.htm).

379. See Guidances, supra note 2, at 39682.

380. See ECOS, supra note 7, at 2; Institute for Public Representation, supra note 155, at 12.

381. See BNEJ, supra note 7 at 19-20.

382. See Guidances, supra note 2, at 39682-83.

383. See id. at 39682.

384. See Golden Gate, supra note 156, at 13.

385. See Guidances, supra note 2, at 39682.

386. See id.

387. See id.

388. For example, using a factor of two tests in two different states with a minority population of 4% and 50%, respectively, would mean that a presumption of disparity would exist in the first state if less than 10% of an affected population were minority, but in the latter state, the percentage would have to reach 100%. See Guidances, supra note 2, at 39682 n.138.

389. See Gauna, supra note 154, at 6.

390. See ECOS, supra note 7, at 1-2.

391. See Guidances, supra note 2, at 39682-83.

392. Id.

393. See id.

394. See Mank, Recipient Agencies, supra note 55, at 801-07.

395. See Guidances, supra note 2, at 39683 n.147 (citing 40 C.F.R. § 7.120(d)(1)(ii)).

396. See Guidances, supra note 2, at 39683 n.148 (citing 40 C.F.R. § 7.115(d)(2)).

397. See INTERIM GUIDANCE, supra note 1, at 12.

398. See Guidances, supra note 2, at 39654, 39683.

399. See id. at 39683 (emphasis added) & n.149 (citing Donnelly v. Rhode Island Bd. of Governor for Higher Educ., 929 F. Supp. 583, 593 (D.R.I. 1996), aff'd on other grounds, 110 F.3d 2 (1st Cir. 1997); Elston v. Talladega County Bd. of Educ., 997 F.2d 13 94, 1412-13 (11th Cir. 1993); see also NAACP v. Medical Center, Inc., 657 F.2d 1322, 1328 (3d Cir. 1981); Mank, Recipient Agencies, supra note 55, at 803-07.

400. See Guidances, supra note 2, at 39654, 39683.

401. See id.

402. See id.

403. See BNEJ, supra note 7, at 30-33. Title VII of the Civil Rights Act generally prohibits discrimination in employment on the basis of gender.

404. See Institute for Public Representation, supra note 155, at 13-14; NEJAC, supra note 9, at 54-55.

405. See NEJAC, supra note 9, at 54 (criticizing justification as contrary to goal of eliminating adverse disparate impacts).

406. See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 n. 14, 1412-13 (11th Cir. 1993); NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1334 (3d Cir. 1981) (en banc) (stating "challenged practice must not only affect disproportionately, it must do so unnecessarily."); Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984) ("defendants are not per se prohibited from locating a highway where it will have differential impacts upon minorities. Rather, Title VI prohibits taking actions with differential impacts without adequate justification."); Mank, Recipient Agencies, supra note 55, at 801-07.

407. See BNEJ, supra note 7, at 30-33.

408. See Guidances, supra note 2, at 39654, 39683; see generally Mank, Recipient Agencies, supra note 55, at 808-09; infra note 410 and accompanying text.

409. See Guidances, supra note 2, at 39683 n.150 (emphasis added) (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Elston, 997 F.2d at 1413).

410. INTERIM GUIDANCE, supra note 1, at 12 (emphasis added); See Mank, Recipient Agencies, supra note 55, at 814-23.

411. See Mank, Recipient Agencies, supra note 55, at 814-23; Institute for Public Representation, supra note 155, at 15.

412. See BNEJ, supra note 7, at 33-34.

413. Mank, Recipient Agencies, supra note 55, at 808-09

414. See id., supra note 55, at 814-23; Institute for Public Representation, supra note 155, at 14.

415. See Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 661 (1989); Mank, Recipient Agencies, supra note 55, at 804-09, 822-29. An exception is that increased cost or reproductive safety do not justify sex discrimination. See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 197-211 (1991).

416. See Guidances, supra note 2, at 39683.

417. See Mank, Recipient Agencies, supra note 55, at 823-26.

418. See NEJAC, supra note 9, at 57.

419. See Mank, Recipient Agencies, supra note 55, at 823-26.

420. See Guidances, supra note 2, at 39683; Mank, Recipient Agencies, supra note 55, at 831 (arguing that EPA should require site-specific mitigation measures because off-site mitigation may fail to address adverse impacts); NEJAC, supra note 9, at 29-30; supra note 142 and accompanying text.

421. See Mank, Recipient Agencies, supra note 55, at 830-34 (arguing that the Interim Guidance fails to require effective mitigation measures and monitoring of success); Golden Gate, supra note 156, at 14-15; see generally Michael G. LeDesma, A Sound of Thunder: Problems and Prospects in Wetland Mitigation Banking, 19 COLUM. J. ENVTL. L. 497, 500-01 (1994) (discussing problem of ineffective monitoring of wetland banking mitigation programs).

422. See NEJAC, supra note 9, at 32-34; supra note 158 and accompanying text.

423. See Guidances, supra note 2, at 39674; supra notes 264-65 and accompanying text.

424. See TITLE VI ADVISORY COMMITTEE REPORT, supra note 69, at 90.

425. See Guidances, supra note 2, at 39683.

426. See id.

427. See id.

428. See id. at 39651.

429. See 40 C.F.R. § 7.130(a)-(b) (discussing EPA's authority to terminate funding to a recipient); New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30.

430. See 40 C.F.R. § 7.130(a)-(b) (discussing EPA's authority to terminate funding to a recipient).

431. See Guidances, supra note 2, at 39683.

432. See NEJAC, supra note 9, at 57.

433. See id. at 27-29; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30.

434. See NEJAC, supra note 9, at 27-29.

435. See New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30.

436. See ECOS, supra note 7, at 4.

437. See 40 C.F.R. § 7.115(e).

438. See Guidances, supra note 2, at 39683 n.153 (citing 40 C.F.R. §§ 7.115(e), 7.130(b)(1)).

439. See id. at 39683-84 nn. 154-58 (citing 40 C.F.R. §§ 7.130(b)(2)(I), (ii), 7.130(b)(3)); Mank, Title VI, supra note 26, at 28; see supra note 49 and accompanying text.

440. See Guidances, supra note 2, at 39683-84 n. 159 (citing 40 C.F.R. § 7.130(b)(3)(iii)); Mank, Title VI, supra note 26, at 28; see supra note 50 and accompanying text.

441. See New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31.

442. Environmental Justice: Draft Revised Civil Rights Guidance Clarifies Definitions, Addresses State Issues, supra note 60, at 1331.

443. See McQuaid, supra note 13, at A1; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31.

444. See New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31.

445. See McQuaid, supra note 13, at A1; see also DRAFT TITLE VI GUIDANCE DOCUMENTS: QUESTIONS AND ANSWERS, supra note 23, at 6 (Question 18) (indicating that a Title VI complaint does not suspend or reverse an issued permit because the Agency's "Title VI process is focused on the actions of recipients, not of permit applicants.").

446. See McQuaid, supra note 13, at A1.

447. See id.; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31.

448. See McQuaid, supra note 13, at A1.

449. See Joan McKinney, "Justice" EPA Rules Released—Changes Could Help Minority Communities, BATON ROUGE STATE TIMES/MORNING ADVOC., June 17, 2000, at 1A; New EPA Draft Civil Rights Policy Pleases States, Angers Activists, supra note 15, at 30-31.

450. See McKinney, supra note 449, at 1A; supra notes 155-59, 266-67, 280-81, and accompanying text.

30 ELR 11144 | Environmental Law Reporter | copyright © 2000 | All rights reserved