RE: Action Alert, U.S. EPA Guidance, Challenges to Permits

U.S. EPA recently took an action which could significantly impact environmental permits under federal laws even though the permits fully comply with all substantive environmental regulations and standards. After more than 16 months of closed-door investigation, a task force ("Task Force") formed by the U.S. EPA Office of Civil Rights ("OCR") recently issued its INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS ("Guidance"). That Guidance provides the basis for OCR's review of complaints against environmental permits based upon Title VI of the Federal Civil Rights Act ("Title VI") which prohibits discrimination under any program which receives federal financial assistance. The Guidance will change the framework for review and approval of environmental permits, and may even subject existing permits to attack. Submission of comments to the Guidance during the public comment period may be the only opportunity to make your views on this significant change to environmental permit review procedures known.

In 1996, OCR quietly established the Task Force to review Title VI complaints related to environmental permits and to draft the Guidance in response to a number of complaints filed with the OCR alleging that the permits would result in a disparate impact on populations afforded Title VI protection. The Task Force undertook to review five such complaints, including one in which we assisted one of our clients in successfully responding to numerous Title VI challenges to the permit. The Task Force gave no notice to the public of its work or to the potentially affected facilities of the complaints, its actions, or the issues under investigation. Nor did the Task Force afford the affected facilities an opportunity to effectively participate in the OCR's permit review process. The Guidance is the result of the Task Force's work. Its report on the individual permits under review is still pending.

The Guidance provides a framework for addressing Title VI complaints against permits. Its procedures virtually guarantee significant delays in approval of new permit applications if a Title VI complaint is filed. It also provides a basis for OCR to demand substantive changes to a permit application, even if the proposed permit meets all environmental standards. Finally, the Guidance provides a basis to challenge validly issued permits even though no violations of the permits are alleged. The standards for OCR's review are ill-defined and vague, potentially leading to inconsistent and subjective applications. The Guidance allows U.S. EPA to seek injunctive relief and encourages individuals to bring a private court action against permits without exhausting administrative remedies. The Guidance authorizes OCR to undertake a de novo review of a permit after a final, determination that it meets all substantive environmental regulations. In effect, the Guidance reopens environmental permit review procedures and standards, with no safeguards for the legal rights of the applicant.

The Guidance places the burden on the permit-issuing authority, typically the state, to respond to the complaint and the OCR review. However, the state's response will only be as good as the information provided by the permit applicant. Thus, the ultimate burden will be on the permit applicant to undertake the review required by the Guidance. In addition, implementation of the Guidance will require significant effort by both the OCR and the state-permitting agencies, demanding resources which may not be available. Several state agencies have already criticized the Guidance as having the potential to delay permit approvals, require additional resources in permit review and cause disputes between the states and OCR. The Comment Period on the Guidance is open until May 6, 1998. No public hearings on the Guidance are scheduled and the submission of written comments is critical to protect the interests of permit holders.