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AQMD’s Comments on EPA’s Draft Revised Guidance for Investigating Title VI Complaints Regarding Permits and Draft Guidance for Agencies Receiving EPA Funds

SYNOPSIS: 

EPA has released for public comment its draft revised guidance for investigating complaints challenging permit decisions under Title VI of the Civil Rights Act of 1964, which prohibits discrimination by federally funded agencies on the basis of race or national origin. Draft guidance for agencies receiving EPA funding was also released. Comments are due August 28, 2000. This action is to approve AQMD comments and the transmittal of the comments to EPA.

COMMITTEE: 

Administrative, August 11, 2000, recommended for approval.

RECOMMENDED ACTION: 

Approve the AQMD’s comments regarding EPA’s Draft Recipient Guidance and Draft Revised Investigations Guidance for Title VI Complaint Challenging Permits and direct the Executive Officer to submit AQMD’s comments to the U.S. EPA prior to the August 28, 2000, deadline for public comments.

Barry R. Wallerstein, D.Env.
Executive Officer

Background

AQMD filed Board-approved comments in May 1998 on EPA’s Interim Guidance¹ for Investigating Title VI Complaints Regarding Permits. EPA has now issued Draft Revised Investigation Guidance as well as Draft Recipient Guidance (i.e., guidance for agencies receiving EPA funding to help design their programs to avoid Title VI complaints). Comments are due August 28, 2000. 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.

¹ Once finalized, this will replace the 1998 Interim Guidance.

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 USC §2000d)

AQMD receives an annual grant from EPA under section 105 of the Clean Air Act, 42 USC section 7405, and is therefore subject to Title VI. 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 CFR §§7.10 et seq.). EPA’s implementing regulations prohibit programs having a discriminatory effect ("disparate impact") as well as those that are intentionally discriminatory. If EPA finds an agency in violation, EPA will initiate procedures to suspend or terminate EPA funding. Also, some courts have held that affected residents can sue the agency receiving funding without following the EPA complaint process.

Summary of AQMD Comments

AQMD staff supports EPA’s efforts to provide guidance under Title VI and especially the Draft Recipient Guidance, which seeks to help permitting agencies design their programs to avoid the likelihood of Title VI challenges.

A key aspect of EPA’s revised guidance is the concept of "due weight," whereby EPA will evaluate Title VI complaints in light of the information provided by the permitting authority and the nature of the programs the permitting authority has in place to reduce or eliminate any disparate impact. If the permitting agency has entered into an "area-specific agreement" with community representatives and stakeholders, and EPA find that agreement will adequately reduce adverse impacts over a reasonable period of time, EPA will likely dismiss complaints regarding permits that are covered by such an agreement.

Staff believes this concept should be extended to agency programs that EPA finds adequately reduce adverse impacts, even if there is not an area-specific agreement in place. It is difficult to determine who has the right to agree on behalf of community residents.²  Instead of relying on agreements, EPA should issue practical, objective criteria for approving programs which are designed to reduce impact. By granting preference to such programs, EPA can focus its investigative efforts on areas which are not addressing adverse impacts. The Environmental Justice Initiatives adopted and implemented by the AQMD Board provide a solid foundation for an approvable program. In the attached comments, AQMD volunteers to work with EPA to develop a model program based on the existing Environmental Justice Initiatives and other Board actions to reduce adverse impact.

² At an EPA public listening session on August 2, 2000, one commenter questioned the concept of area-specific agreements, since the community group agreeing might be funded by polluting sources.

Comments on EPA’s Responses to Issues Raised Regarding 1998 Interim Guidance

In its comments on EPA’s Interim Guidance, AQMD raised a number of issues. Many of these issues are addressed in the Revised Draft Guidance. The following discussion explains how EPA addressed the issues previously raised in AQMD comments, and summarizes staffs’ proposed comments in these issues.

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

EPA takes the position that normally the most appropriate remedy will be a program seeking to reduce impacts from all contributing sources, rather than to deny a particular permit. Staff supports this concept and believes existing AQMD programs are consistent with this goal. However, EPA’s discussion of cumulatively significant risk levels needs clarification. EPA proposes that cumulative risk levels of 1 in a million are not significant, but that levels of 100 in a million are more likely to be significant. However, based on AQMD data, all urban areas are likely to have current ambient levels that exceed this threshold. Therefore, all permit actions could be considered significant, which would defeat the purpose of a significance threshold.

• How will a comparison community be selected?

EPA suggests that a political jurisdiction, or the permitting agency’s area of jurisdiction, or the permitting agency’s area of jurisdiction, may be an appropriate comparison area. The attached comments seek further clarification on this issue and suggest that comparison areas should be similarly zoned to the affected area, since environmental agencies cannot require a facility to locate in an area not properly zoned.

• 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?

EPA states that an impact must be significant in order to be considered adverse, and that it will look to existing regulatory and scientific concepts of significance in making this determination. Also, both impact disparity and demographic disparity must normally be statistically significant to find a violation. Staff supports these concepts.

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

EPA expresses a preference for remedies which focus on all contributors to impact, rather than on denying an individual permit but does not rule out denying an individual permit in an appropriate case. AQMD staff supports EPA’s preference for a comprehensive approach to the problem and believes AQMD’s Environmental Justice Initiatives, existing toxic rules, and Air Toxics Control Plan provide such an approach, when coupled with Regulation XIII (New Source Review) and Rule 1401 (Toxic New Source Review) will prevent individual permits from being significant impacts.

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

EPA states that permit renewals should be treated the same as new permits. Staff believes that permit renewals are very different from new permits, and the attached proposed comments state that renewals should not normally be the basis of complaints.

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

EPA’s position is confusing, since it states these factors may constitute sufficient justification, but then states that justification must be based on a reason "integral to the recipient’s mission." Since AQMD’s mission is improving air quality, yet virtually all permits allow some pollution, the attached comments urge a broader definition of justification.

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

EPA states that a permitting agency program operates "independent" of local land use authority. Staff believes this is an oversimplification, since permitting agencies cannot overrule local zoning. The attached comments urge EPA to grant the affected local government, as well as the permittee, a right to participate in Title VI investigations, and also urges EPA to provide outreach and training to inform local government officials of the possible environmental justice implications of their land use decisions.

• 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?

EPA states that it is legally responsible to enforce Title VI and its implementing regulations and so cannot delegate authority to local agencies. However, EPA urges local agencies to develop comprehensive programs to reduce or eliminate adverse disparate impacts and minimize Title VI complaints. The Draft Recipient Guidance provides helpful suggestions. The attached comments urge EPA to issue practical, objective criteria for permitting agency programs that would be entitled to "due weight" in terms of prompt action and likely dismissal of complaints.

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

While the Draft Revised Guidance provides further clarification on timelines, there is still no overall time limit for complaint processing. The proposed comments urge EPA to establish an overall time limit and to adopt procedures for dismissal of nonmeritorious complaints. Timely processing of complaints will benefit everyone concerned: complainants, recipients, and permit applicants.

Additional comments proposed by staff in the attached letter include:

• Support EPA’s decision that filing a complaint does not stay the effectiveness of the permit, but urge EPA to develop a means to expedite investigations of complaints;
• EPA should not defer investigation of pre-permit complaints, so the permitting agency has benefit of EPA input prior to its permit decision;
• Justification should not be limited to air quality goals but should include actions significantly furthering other important social goals, e.g., water treatment plant;
• EPA should encourage programs to reduce toxic mobile source emissions; and
• EPA should minimize duplicative court and administrative proceedings.

Public Input on AQMD Draft Comments

Staff worked with the Home Rule Advisory Group Subcommittee on Environmental Justice in developing the attached draft comments. Presentations were made to the Local Government and Small Business Assistance Advisory Group, the Ethnic Community Advisory Group, the Home Rule Advisory Group, and discussions were held with various environmental group representatives. In addition, staff attended EPA’s Public Listening Session in Carson on August 2, 2000. Public comments which are at variance with staff’s proposed comments, and staff’s response, are summarized below.

• Staff’s proposed comments urge EPA to take the position that permit renewals should not be the basis for complaint in the normal case. Several environmental groups commented that renewals should be a potential basis for complaint if either the operating conditions have changed or the demographics have changed since the permit was originally issued. Staff concurs in the case where operating conditions have changed. However, staff believes that where there is no change in operation, a renewal should not normally be the basis of complaint because of changed demographics which neither the permitting agency nor the facility could foresee. However, staff will impose conditions necessary to prevent a public nuisance at the time of permit renewal if there is a change in population, such as closer residences, which warrants such conditions.
  
  
• Some environmental groups believe that EPA has misperceived its role and drafted the guidance as though EPA were a permit reviewing agency instead of a civil rights enforcement agency, which is EPA’s mission under Title VI. Therefore, these groups believe EPA should scrap the draft guidance and start over again. Staff, however, supports EPA’s efforts to provide guidance to recipients which will help recipients avoid Title VI issues, and appreciates EPA’s providing more specificity in the draft investigations guidance.
  
  
• Some environmental groups object to EPA’s investigations process, which provides for the fund recipient to appeal EPA’s initial decision, but does not provide an appeal for the complaining party. Staff’s proposed comments do not address this issue, but staff concurs with EPA’s assessment that an appeal for recipient is appropriate because the remedy being sought is a cutoff of federal funds to recipient agencies. Complaining parties who disagree with EPA’s decision can still sue recipients in court.
  
  
• Some environmental groups believe EPA’s guidance relies too much on the possibility of informal dispute resolution between complainants and recipients. Staff believes this concern would be addressed by EPA establishing a firm deadline for resolving complaints.
  
  
• Some environmental groups would prefer EPA to require permitting agencies to deny individual proposed permits as a remedy for violations, rather than seeking remedies which address all the sources of adverse impacts. Staff believes that in this district, stringent rules such as Rule 1401 and New Source Review prevent individual permits from creating a significant adverse impact, so a comprehensive approach addressing all sources of impact is preferable.

Proposal

Board approval is sought for the attached proposed AQMD comments to be submitted by the deadline for public comment of August 28, 2000.

Attachment

South Coast Air Quality Management District’s Technical Comments on Draft Title VI Guidance for EPA Recipients Administering Environmental Permit Programs and Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (65 Fed.Reg. 39650 et seq. [June 27, 2000])

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