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PROPOSAL:

AQMD’s Comments on EPA’s Interim Guidance for Investigating Title VI Complaints Regarding Permits

SYNOPSIS:

EPA has released for public comment its interim guidance on investigating complaints challenging permit decisions under Title VI of the Civil Rights Act of 1964, prohibiting discrimination by federally funded agencies on the basis of race or national origin. Comments are due May 6, 1998. This action is to approve AQMD comments and the transmittal of the comments to EPA.

COMMITTEE:

Stationary Source, March 20, 1998; fewer than three members were present and therefore, pursuant to the Procedures for Standing Committees of the Governing Board, the Committee forwards this letter without recommendation.

RECOMMENDED ACTION:

Approve the AQMD's comments regarding EPA's Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits and direct the Acting Executive Officer to submit AQMD's comments to the U.S. EPA prior to the May 6, 1998, deadline for public comments.

Barry R. Wallerstein, D.Env.
Acting Executive Officer

Background

The AQMD Board has taken a leadership role in adopting a series of 10 Environmental Justice Initiatives designed to help ensure equitable environmental policymaking and enforcement to protect all AQMD residents from the health effects of air pollution. An important federal environmental justice statute is Title VI of the Civil Rights Act of 1964, which prohibits any agency receiving federal funding from discriminating in the administration of its programs.

Title VI of the Civil Rights Act of 1964 provides in pertinent part:

"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." (42 U.S.C. §2000d)

AQMD receives an annual grant from EPA under §105 of the Clean Air Act, 42 U.S.C. §7405, and is therefore obligated by Title VI to administer its programs in a nondiscriminatory manner. The issuance of permits is one of the activities governed by Title VI. EPA has issued regulations under Title VI governing the processing of complaints that an agency is violating Title VI (40 C.F.R. §§ 7.10 et seq.). The proposed Interim Guidance implements these regulations. On February 5, 1998, EPA proposed for public comment its "Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits." The public comment period closes May 6, 1998. This action is to approve AQMD's proposed comments on the Interim Guidance.

Summary of EPA's Proposed Interim Guidance

Title VI complaints are handled by EPA's Office of Civil Rights (OCR). Complaints are to be received within 180 days of the alleged discriminatory act, but EPA can waive this deadline. Once a complaint is received, OCR will determine whether it states a valid claim. If so, OCR will accept the complaint within 20 days and will begin investigation. The issue in the investigation is whether the permit will create a disparate impact, or add to an existing disparate impact, on a racial or ethnic population. Under the proposed Interim Guidance, ordinarily, OCR will only find a disparate impact in cases where an individual permit contributes to a preexisting burden of pollution such that a community's cumulative burden is disproportionate, or where a permit is part of a pattern of disparate impacts.

If OCR makes an initial finding of disparate impact, it will allow the agency to attempt to rebut that finding, propose a plan for mitigating the disparate impact, or to "justify" the permit by showing an overriding substantial, legitimate governmental interest supporting the permit issuance. Even if there exists sufficient justification, the agency must adopt any available less-discriminatory alternative which reduces the disparate impact.

If the agency fails to rebut OCR's initial finding and cannot mitigate or justify the disparate impact, OCR will make a written preliminary finding of noncompliance, giving the agency 50 days to file a formal response. Thereafter, OCR will issue a final decision. If the final decision is noncompliance, the agency will have 10 days to come into voluntary compliance. EPA's guidance does not say whether voluntary compliance would include denying or revoking the permit at issue. If the agency does not comply, OCR will initiate procedures to suspend or terminate EPA funding, and will consider referring the matter to the Department of Justice for litigation.

Summary of AQMD Comments

AQMD staff supports EPA's efforts to provide guidance under Title VI and believes further guidance is needed. Staff has identified a number of issues relating to the guidance which require clarification. The attached draft comments on EPA's guidance lists the issues identified, and explains how each issue relates to the guidance and to AQMD's permitting program. The issues identified are as follows:

• How can a permitting authority evaluate and remedy cumulative adverse impact?

• How will a comparison community be selected?

• Is there some level of impact which will be considered "de minimis" and not constitute a violation? What scientific evidence will support a finding of disparate impact?

• Must permitting authorities amend their rules to deny permits, based on disparate impact, even though the facility complies with all applicable environmental rules?

• Is an existing facility provided any protections in a Title VI challenge? What types of less discriminatory alternatives must be considered for existing sources?

• May justification be based on economic benefit and the provision of jobs?

• How does Title VI affect existing city and county authority over land use?

• How can a permitting authority design its program to avoid disparate impacts? May EPA delegate authority to local agencies to administer the Title VI program and if so, what would be the criteria for delegation?

• What are the timelines for EPA action on various aspects of the investigation?

Board approval is sought for the attached proposed AQMD comments to be submitted by the deadline for public comment of May 6, 1998.

Attachments

A. (Proposed) AQMD comments on EPA's Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits

B. EPA's Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits

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