[Federal Register Volume 78, Number 81 (Friday, April 26, 2013)]
[Notices]
[Pages 24739-24743]
[FR Doc No: 2013-09922]

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ENVIRONMENTAL PROTECTION AGENCY

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

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

AGENCY: Environmental Protection Agency (EPA).

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT: For information on the docket,
www.regulations.gov, or the public comment period, please contact the
Office of Environmental Information (OEI) Docket (Mail Code: 2822T),
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>;
or email<EMAIL_ADDRESS>    For information on the draft policy papers, please contact Helena
Wooden-Aguilar, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW., Washington, DC 20460; telephone:<PHONE_NUMBER>; facsimile:
202-565-0196; or email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

1. General Information

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

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

I. Introduction

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

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

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

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

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

I. Introduction

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

II. Current Position

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

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

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

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