| 40 CFR 7.10
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 7--NONDISCRIMINATION IN PROGRAMS RECEIVING
FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY
Subpart A--General
Sec.
7.10 Purpose of this part.
7.15 Applicability.
7.20 Responsible agency officers.
7.25 Definitions.
Subpart B--Discrimination Prohibited on the Basis of Race, Color,
National Origin or Sex
7.30 General prohibition.
7.35 Specific prohibitions.
Subpart C--Discrimination Prohibited on the Basis of Handicap
7.45 General prohibition.
7.50 Specific prohibitions against discrimination.
7.55 Separate or different programs.
7.60 Prohibitions and requirements relating to employment.
7.65 Accessibility.
7.70 New construction.
7.75 Transition plan.
Subpart D--Requirements for Applicants and Recipients
7.80 Applicants.
7.85 Recipients.
7.90 Grievance procedures.
7.95 Notice of nondiscrimination.
7.100 Intimidation and retaliation prohibited.
Subpart E--Agency Compliance Procedures
7.105 General policy.
7.110 Preaward compliance.
7.115 Postaward compliance.
7.120 Complaint investigations.
7.125 Coordination with other agencies.
7.130 Actions available to EPA to obtain compliance.
7.135 Procedure for regaining eligibility.
Appendix A to Part 7--EPA Assistance Programs as Listed in the ``Catalog
of Federal Domestic Assistance''
Authority: 42 U.S.C. 2000d to 2000d-4; 29 U.S.C. 794; 33 U.S.C. 1251
nt.
Source: 49 FR 1659, Jan. 12, 1984, unless otherwise noted.
Subpart A--General
Sec. 7.10 Purpose of this part.
This part implements: Title VI of the Civil Rights Act of 1964, as
amended; section 504 of the Rehabilitation Act of 1973, as amended; and
section 13 of the Federal Water Pollution Control Act Amendments of
1972, Public Law 92-500, (collectively, the Acts).
Sec. 7.15 Applicability.
This part applies to all applicants for, and recipients of, EPA
assistance in the operation of programs or activities receiving such
assistance beginning February 13, 1984. New construction (Sec. 7.70) for
which design was initiated prior to February 13, 1984, shall comply with
the accessibility requirements in the Department of Health, Education
and Welfare (now the Department of Health and Human Services)
nondiscrimination regulation, 45 CFR 84.23, issued June 3, 1977, or with
equivalent standards that ensure the facility is readily accessible to
and usable by handicapped persons. Such assistance includes but is not
limited to that which is listed in the Catalogue of
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Federal Domestic Assistance under the 66.000 series. It supersedes the
provisions of former 40 CFR parts 7 and 12.
Sec. 7.20 Responsible agency officers.
(a) The EPA Office of Civil Rights (OCR) is responsible for
developing and administering EPA's compliance programs under the Acts.
(b) EPA's Project Officers will, to the extent possible, be
available to explain to each recipient its obligations under this part
and to provide recipients with technical assistance or guidance upon
request.
Sec. 7.25 Definitions.
As used in this part:
Administrator means the Administrator of EPA. It includes any other
agency official authorized to act on his or her behalf, unless explicity
stated otherwise.
Alcohol abuse means any misuse of alcohol which demonstrably
interferes with a person's health, interpersonal relations or working
ability.
Applicant means any entity that files an application or unsolicited
proposal or otherwise requests EPA assistance (see definition for EPA
assistance).
Assistant Attorney General is the head of the Civil Rights Division,
U.S. Department of Justice.
Award Official means the EPA official with the authority to approve
and execute assistance agreements and to take other assistance related
actions authorized by this part and by other EPA regulations or
delegation of authority.
Drug abuse means:
(a) The use of any drug or substance listed by the Department of
Justice in 21 CFR 1308.11, under authority of the Controlled Substances
Act, 21 U.S.C. 801, as a controlled substance unavailable for
prescription because:
(1) The drug or substance has a high potential for abuse,
(2) The drug or other substance has no currently accepted medical
use in treatment in the United States, or
(3) There is a lack of accepted safety for use of the drug or other
substance under medical supervision.
Note: Examples of drugs under paragraph (a)(1) of this section
include certain opiates and opiate derivatives (e.g., heroin) and
hallucinogenic substances (e.g., marijuana, mescaline, peyote) and
depressants (e.g., methaqualone). Examples of (a)(2) include opium, coca
leaves, methadone, amphetamines and barbiturates.
(b) The misuse of any drug or substance listed by the Department of
Justice in 21 CFR 1308.12-1308.15 under authority of the Controlled
Substances Act as a controlled substance available for prescription.
EPA means the United States Environmental Protection Agency.
EPA assistance means any grant or cooperative agreement, loan,
contract (other than a procurement contract or a contract of insurance
or guaranty), or any other arrangement by which EPA provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of personnel; or
(3) Real or personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if EPA's share of its fair market value is not returned to EPA.
Facility means all, or any part of, or any interests in structures,
equipment, roads, walks, parking lots, or other real or personal
property.
Handicapped person:
(a) Handicapped person means any person who (1) has a physical or
mental impairment which substantially limits one or more major life
activities, (2) has a record of such an impairment, or (3) is regarded
as having such an impairment. For purposes of employment, the term
handicapped person does not include any person who is an alcoholic or
drug abuser whose current use of alcohol or drugs prevents such
individual from performing the duties of the job in question or whose
employment, by reason of such current drug or alcohol abuse, would
constitute a direct threat to property or the safety of others.
(b) As used in this paragraph, the phrase:
(1) Physical or mental impairment means (i) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more
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of the following body systems: Neurological; musculoskeletal; special
sense organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and
endocrine; and (ii) any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined above but is treated by a
recipient as having such an impairment.
Office of Civil Rights or OCR means the Director of the Office of
Civil Rights, EPA Headquarters or his/her designated representative.
Project Officer means the EPA official designated in the assistance
agreement (as defined in EPA assistance) as EPA's program contact with
the recipient; Project Officers are responsible for monitoring the
project.
Qualified handicapped person means:
(a) With respect to employment: A handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question.
(b) With respect to services: A handicapped person who meets the
essential eligibility requirements for the receipt of such services.
Racial classifications: 1
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\1\ Additional subcategories based on national origin or primary
language spoken may be used where appropriate on either a national or a
regional basis. Subparagraphs (a) through (e) are in conformity with
Directive 15 of the Office of Federal Statistical Policy and Standards,
whose function is now in the Office of Information and Regulatory
Affairs, Office of Management and Budget. Should that office, or any
successor office, change or otherwise amend the categories listed in
Directive 15, the categories in this paragraph shall be interpreted to
conform with any such changes or amendments.
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(a) American Indian or Alaskan native. A person having origins in
any of the original peoples of North America, and who maintains cultural
identification through tribal affiliation or community recognition.
(b) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa.
(c) Black and not of Hispanic origin. A person having origins in any
of the black racial groups of Africa.
(d) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish culture or origin, regardless or race.
(e) White, not of Hispanic origin. A person having origins in any of
the original peoples of Europe, North Africa, or the Middle East.
Recipient means, for the purposes of this regulation, any State or
its political subdivision, any instrumentality of a State or its
political subdivision, any public or private agency, institution,
organization, or other entity, or any person to which Federal financial
assistance is extended directly or through another recipient, including
any successor, assignee, or transferee of a recipient, but excluding the
ultimate beneficiary of the assistance.
Section 13 refers to section 13 of the Federal Water Pollution
Control Act Amendments of 1972.
United States includes the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, the Canal
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Zone, and all other territories and possessions of the United States;
the term State includes any one of the foregoing.
Subpart B--Discrimination Prohibited on the Basis of Race, Color,
National Origin or Sex
Sec. 7.30 General prohibition.
No person shall be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving EPA assistance on the basis of race, color, national
origin, or on the basis of sex in any program or activity receiving EPA
assistance under the Federal Water Pollution Control Act, as amended,
including the Environmental Financing Act of 1972.
Sec. 7.35 Specific prohibitions.
(a) As to any program or activity receiving EPA assistance, a
recipient shall not directly or through contractual, licensing, or other
arrangements on the basis of race, color, national origin or, if
applicable, sex:
(1) Deny a person any service, aid or other benefit of the program;
(2) Provide a person any service, aid or other benefit that is
different, or is provided differently from that provided to others under
the program;
(3) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, aid, or benefit
provided by the program;
(4) Subject a person to segregation in any manner or separate
treatment in any way related to receiving services or benefits under the
program;
(5) Deny a person or any group of persons the opportunity to
participate as members of any planning or advisory body which is an
integral part of the program, such as a local sanitation board or sewer
authority;
(6) Discriminate in employment on the basis of sex in any program
subject to section 13, or on the basis of race, color, or national
origin in any program whose purpose is to create employment; or, by
means of employment discrimination, deny intended beneficiaries the
benefits of the EPA assistance program, or subject the beneficiaries to
prohibited discrimination.
(7) In administering a program or activity receiving Federal
financial assistance in which the recipient has previously discriminated
on the basis of race, color, sex, or national origin, the recipient
shall take affirmative action to provide remedies to those who have been
injured by the discrimination.
(b) A recipient shall not use criteria or methods of administering
its program which have the effect of subjecting individuals to
discrimination because of their race, color, national origin, or sex, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program with respect to individuals of a
particular race, color, national origin, or sex.
(c) A recipient shall not choose a site or location of a facility
that has the purpose or effect of excluding individuals from, denying
them the benefits of, or subjecting them to discrimination under any
program to which this part applies on the grounds of race, color, or
national origin or sex; or with the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of this
subpart.
(d) The specific prohibitions of discrimination enumerated above do
not limit the general prohibition of Sec. 7.30.
Subpart C--Discrimination Prohibited on the Basis of Handicap
Sec. 7.45 General prohibition.
No qualified handicapped person shall solely on the basis of
handicap be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity receiving EPA assistance.
Sec. 7.50 Specific prohibitions against discrimination.
(a) A recipient, in providing any aid, benefit or service under any
program or activity receiving EPA assistance shall not, on the basis of
handicap, directly or through contractual, licensing, or other
arrangement:
(1) Deny a qualified handicapped person any service, aid or other
benefit of a federally assisted program;
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(2) Provide different or separate aids, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless the action is necessary to provide qualified
handicapped persons with aids, benefits, or services that are as
effective as those provided to others;
(3) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an entity that
discriminates on the basis of handicap in providing aids, benefits, or
services to beneficiaries of the recipient's program;
(4) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(5) Limit a qualified handicapped person in any other way in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit or service from the program.
(b) A recipient may not, in determining the site or location of a
facility, make selections: (1) That have the effect of excluding
handicapped persons from, denying them the benefits of, or otherwise
subjecting them to discrimination under any program or activity that
receives or benefits from EPA assistance or (2) that have the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the program or activity receiving EPA assistance with
respect to handicapped persons.
(c) A recipient shall not use criteria or methods of administering
any program or activity receiving EPA assistance which have the effect
of subjecting individuals to discrimination because of their handicap,
or have the effect of defeating or substantially impairing
accomplishment of the objectives of such program or activity with
respect to handicapped persons.
(d) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees, and beneficiaries are
available to persons with impaired vision and hearing.
(e) The exclusion of non-handicapped persons or specified classes of
handicapped persons from programs limited by Federal statute or
Executive Order to handicapped persons or a different class of
handicapped persons is not prohibited by this subpart.
Sec. 7.55 Separate or different programs.
Recipients shall not deny a qualified handicapped person an
opportunity equal to that afforded others to participate in or benefit
from the aid, benefit, or service in the program receiving EPA
assistance. Recipients shall administer programs in the most integrated
setting appropriate to the needs of qualified handicapped persons.
Sec. 7.60 Prohibitions and requirements relating to employment.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to discrimination in employment under any program or
activity that receives or benefits from Federal assistance.
(b) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur, and
shall not limit, segregate, or classify applicants or employees in any
way that adversely affects their opportunities or status because of
handicap.
(c) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection
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for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; or
(9) Any other term, condition, or privilege of employment.
(d) A recipient shall not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this paragraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeship programs.
(e) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(f) A recipient shall not use employment tests or criteria that
discriminate against handicapped persons and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
(g) A recipient shall not conduct a preemployment medical
examination or make a preemployment inquiry as to whether an applicant
is a handicapped person or as to the nature or severity of a handicap
except as permitted by the Department of Justice in 28 CFR 42.513.
Sec. 7.65 Accessibility.
(a) General. A recipient shall operate each program or activity
receiving EPA assistance so that such program or activity, when viewed
in its entirety, is readily accessible to and usable by handicapped
persons. This paragraph does not:
(1) Necessarily require a recipient to make each of its existing
facilities or every part of an existing facility accessible to and
usable by handicapped persons.
(2) Require a recipient to take any action that the recipient can
demonstrate would result in a fundamental alteration in the nature of
its program or activity or in undue financial and administrative
burdens. If an action would result in such an alternation or such
financial and administrative burdens, the recipient shall be required to
take any other action that would not result in such an alteration or
financial and administrative burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity receiving EPA assistance.
(b) Methods of making existing programs accessible. A recipient may
comply with the accessibility requirements of this section by making
structural changes, redesigning equipment, reassigning services to
accessible buildings, assigning aides to beneficiaries, or any other
means that make its program or activity accessible to handicapped
persons. In choosing among alternatives, a recipient must give priority
to methods that offer program benefits to handicapped persons in the
most integrated setting appropriate.
(c) Deadlines. (1) Except where structural changes in facilities are
necessary, recipients must adhere to the provisions of this section
within 60 days after the effective date of this part.
(2) Recipients having an existing facility which does require
alterations in order to make a program or activity accessible must
prepare a transition plan in accordance with Sec. 7.75 within six months
from the effective date of this part. The recipient must complete the
changes as soon as possible, but not later than three years from date of
award.
(d) Notice of accessibility. The recipient must make sure that
interested persons, including those with impaired vision or hearing, can
find out about the existence and location of the assisted program
services, activities, and facilities that are accessible to and usable
by handicapped persons.
(e) Structural and financial feasibility. This section does not
require structural alterations to existing facilities if making such
alterations would not be structurally or financially feasible.
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An alteration is not structurally feasible when it has little likelihood
of being accomplished without removing or altering a load-bearing
structural member. Financial feasibility shall take into account the
degree to which the alteration work is to be assisted by EPA assistance,
the cost limitations of the program under which such assistance is
provided, and the relative cost of accomplishing such alterations in
manners consistent and inconsistent with accessibility.
Sec. 7.70 New construction.
(a) General. New facilities shall be designed and constructed to be
readily accessible to and usable by handicapped persons. Alterations to
existing facilities shall, to the maximum extent feasible, be designed
and constructed to be readily accessible to and usable by handicapped
persons.
(b) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[49 FR 1659, Jan. 12, 1984, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Sec. 7.75 Transition plan.
If structural changes to facilities are necessary to make the
program accessible to handicapped persons, a recipient must prepare a
transition plan.
(a) Requirements. The transition plan must set forth the steps
needed to complete the structural changes required and must be developed
with the assistance of interested persons, including handicapped persons
or organizations representing handicapped persons. At a minimum, the
transition plan must:
(1) Identify the physical obstacles in the recipient's facilities
that limit handicapped persons' access to its program or activity,
(2) Describe in detail what the recipient will do to make the
facilities accessible,
(3) Specify the schedule for the steps needed to achieve full
program accessibility, and include a year-by-year timetable if the
process will take more than one year,
(4) Indicate the person responsible for carrying out the plan.
(b) Availability. Recipients shall make available a copy of the
transition plan to the OCR upon request and to the public for inspection
at either the site of the project or at the recipient's main office.
Subpart D--Requirements for Applicants and Recipients
Sec. 7.80 Applicants.
(a) Assurances--(1) General. Applicants for EPA assistance shall
submit an assurance with their applications stating that, with respect
to their programs or activities that receive EPA assistance, they will
comply with the requirements of this part. Applicants must also submit
any other information that the OCR determines is necessary for preaward
review. The applicant's acceptance of EPA assistance is an acceptance of
the obligation of this assurance and this part.
(2) Duration of assurance--(i) Real property. When EPA awards
assistance in the form of real property, or assistance to acquire real
property, or structures on the property, the assurance
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will obligate the recipient, or transferee, during the period the real
property or structures are used for the purpose for which EPA assistance
is extended, or for another purpose in which similar services or
benefits are provided. The transfer instrument shall contain a covenant
running with the land which assures nondiscrimination. Where applicable,
the covenant shall also retain a right of reverter which will permit EPA
to recover the property if the covenant is ever broken.
(ii) Personal property. When EPA provides assistance in the form of
personal property, the assurance will obligate the recipient for so long
as it continues to own or possess the property.
(iii) Other forms of assistance. In all other cases, the assurance
will obligate the recipient for as long as EPA assistance is extended.
(b) Wastewater treatment project. EPA Form 4700-4 shall also be
submitted with applications for assistance under Title II of the Federal
Water Pollution Control Act.
(c) Compliance information. Each applicant for EPA assistance shall
submit regarding the program or activity that would receive EPA
assistance:
(1) Notice of any lawsuit pending against the applicant alleging
discrimination on the basis of race, color, sex, handicap, or national
origin;
(2) A brief description of any applications pending to other Federal
agencies for assistance, and of Federal assistance being provided at the
time of the application; and
(3) A statement describing any civil rights compliance reviews
regarding the applicant conducted during the two-year period before the
application, and information concerning the agency or organization
performing the reviews.
(Approved by the Office of Management and Budget under control number
2000-0006)
Sec. 7.85 Recipients.
(a) Compliance information. Each recipient shall collect, maintain,
and on request of the OCR, provide the following information to show
compliance with this part:
(1) A brief description of any lawsuits pending against the
recipient that allege discrimination which this part prohibits;
(2) Racial/ethnic, national origin, sex and handicap data, or EPA
Form 4700-4 information submitted with its application;
(3) A log of discrimination complaints which identifies the
complaint, the date it was filed, the date the recipient's investigation
was completed, the disposition, and the date of disposition; and
(4) Reports of any compliance reviews conducted by any other
agencies.
(b) Additional compliance information. If necessary, the OCR may
require recipients to submit data and information specific to certain
programs to determine compliance where there is reason to believe that
discrimination may exist in a program or activity receiving EPA
assistance or to investigate a complaint alleging discrimination in a
program or activity receiving EPA assistance. Requests shall be limited
to data and information which is relevant to determining compliance and
shall be accompanied by a written statement summarizing the complaint or
setting forth the basis for the belief that discrimination may exist.
(c) Self-evaluation. Each recipient must conduct a self-evaluation
of its administrative policies and practices, to consider whether such
policies and practices may involve handicap discrimination prohibited by
this part. When conducting the self-evaluation, the recipient shall
consult with interested and involved persons including handicapped
persons or organizations representing handicapped persons. The
evaluation shall be completed within 18 months after the effective date
of this part.
(d) Preparing compliance information. In preparing compliance
information, a recipient must:
(1) [Reserved]
(2) Use the racial classifications set forth in Sec. 7.25 in
determining categories of race, color or national origin.
(e) Maintaining compliance information. Recipients must keep records
for paragraphs (a) and (b) of this section for three (3) years after
completing the project. When any complaint or other action for alleged
failure to comply with this part is brought before the
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three-year period ends, the recipient shall keep records until the
complaint is resolved.
(f) Accessibility to compliance information. A recipient shall:
(1) Give the OCR access during normal business hours to its books,
records, accounts and other sources of information, including its
facilities, as may be pertinent to ascertain compliance with this part;
(2) Make compliance information available to the public upon
request; and
(3) Assist in obtaining other required information that is in the
possession of other agencies, institutions, or persons not under the
recipient's control. If such party refuses to release that information,
the recipient shall inform the OCR and explain its efforts to obtain the
information.
(g) Coordination of compliance effort. If the recipient employs
fifteen (15) or more employees, it shall designate at least one person
to coordinate its efforts to comply with its obligations under this
part.
(Approved by the Office of Management and Budget under control number
2000-0006)
Sec. 7.90 Grievance procedures.
(a) Requirements. Each recipient shall adopt grievance procedures
that assure the prompt and fair resolution of complaints which allege
violation of this part.
(b) Exception. Recipients with fewer than fifteen (15) full-time
employees need not comply with this section unless the OCR finds a
violation of this part or determines that creating a grievance procedure
will not significantly impair the recipient's ability to provide
benefits or services.
Sec. 7.95 Notice of nondiscrimination.
(a) Requirements. A recipient shall provide initial and continuing
notice that it does not discriminate on the basis of race, color,
national origin, or handicap in a program or activity receiving EPA
assistance or, in programs covered by section 13, on the basis of sex.
Methods of notice must accommodate those with impaired vision or
hearing. At a minimum, this notice must be posted in a prominent place
in the recipient's offices or facilities. Methods of notice may also
include publishing in newspapers and magazines, and placing notices in
recipient's internal publications or on recipient's printed letterhead.
Where appropriate, such notice must be in a language or languages other
than English. The notice must identify the responsible employee
designated in accordance with Sec. 7.85.
(b) Deadline. Recipients of assistance must provide initial notice
by thirty (30) calendar days after award and continuing notice for the
duration of EPA assistance.
Sec. 7.100 Intimidation and retaliation prohibited.
No applicant, recipient, nor other person shall intimidate,
threaten, coerce, or discriminate against any individual or group,
either:
(a) For the purpose of interfering with any right or privilege
guaranteed by the Acts or this part, or
(b) Because the individual has filed a complaint or has testified,
assisted or participated in any way in an investigation, proceeding or
hearing under this part, or has opposed any practice made unlawful by
this regulation.
Subpart E--Agency Compliance Procedures
Sec. 7.105 General policy.
EPA's Administrator, Director of the Office of Civil Rights, Project
Officers and other responsible officials shall seek the cooperation of
applicants and recipients in securing compliance with this part, and are
available to provide help.
Sec. 7.110 Preaward compliance.
(a) Review of compliance information. Within EPA's application
processing period, the OCR will determine whether the applicant is in
compliance with this part and inform the Award Official. This
determination will be based on the submissions required by Sec. 7.80 and
any other information EPA receives during this time (including
complaints) or has on file about the applicant. When the OCR cannot make
a determination on the basis of this information, additional information
will be
[[Page 121]]
requested from the applicant, local government officials, or interested
persons or organizations, including handicapped persons or organizations
representing such persons. The OCR may also conduct an on-site review
only when it has reason to believe discrimination may be occurring in a
program or activity which is the subject of the application.
(b) Voluntary compliance. If the review indicates noncompliance, an
applicant may agree in writing to take the steps the OCR recommends to
come into compliance with this part. The OCR must approve the written
agreement before any award is made.
(c) Refusal to comply. If the applicant refuses to enter into such
an agreement, the OCR shall follow the procedure established by
paragraph (b) of Sec. 7.130.
Sec. 7.115 Postaward compliance.
(a) Periodic review. The OCR may periodically conduct compliance
reviews of any recipient's programs or activities receiving EPA
assistance, including the request of data and information, and may
conduct on-site reviews when it has reason to believe that
discrimination may be occurring in such programs or activities.
(b) Notice of review. After selecting a recipient for review or
initiating a complaint investigation in accordance with Sec. 7.120, the
OCR will inform the recipient of:
(1) The nature of and schedule for review, or investigation; and
(2) Its opportunity, before the determination in paragraph (d) of
this section is made, to make a written submission responding to,
rebutting, or denying the allegations raised in the review or complaint.
(c) Postreview notice. (1) Within 180 calendar days from the start
of the compliance review or complaint investigation, the OCR will notify
the recipient in writing by certified mail, return receipt requested,
of:
(i) Preliminary findings;
(ii) Recommendations, if any, for achieving voluntary compliance;
and
(iii) Recipient's right to engage in voluntary compliance
negotiations where appropriate.
(2) The OCR will notify the Award Official and the Assistant
Attorney General for Civil Rights of the preliminary findings of
noncompliance.
(d) Formal determination of noncompliance. After receiving the
notice of the preliminary finding of noncompliance in paragraph (c) of
this section, the recipient may:
(1) Agree to the OCR's recommendations, or
(2) Submit a written response sufficient to demonstrate that the
preliminary findings are incorrect, or that compliance may be achieved
through steps other than those recommended by OCR.
If the recipient does not take one of these actions within fifty (50)
calendar days after receiving this preliminary notice, the OCR shall,
within fourteen (14) calendar days, send a formal written determination
of noncompliance to the recipient and copies to the Award Official and
Assistant Attorney General.
(e) Voluntary compliance time limits. The recipient will have ten
(10) calendar days from receipt of the formal determination of
noncompliance in which to come into voluntary compliance. If the
recipient fails to meet this deadline, the OCR must start proceedings
under paragraph (b) of Sec. 7.130.
(f) Form of voluntary compliance agreements. All agreements to come
into voluntary compliance must:
(1) Be in writing;
(2) Set forth the specific steps the recipient has agreed to take,
and
(3) Be signed by the Director, OCR or his/her designee and an
official with authority to legally bind the recipient.
Sec. 7.120 Complaint investigations.
The OCR shall promptly investigate all complaints filed under this
section unless the complainant and the party complained against agree to
a delay pending settlement negotiations.
(a) Who may file a complaint. A person who believes that he or she
or a specific class of persons has been discriminated against in
violation of this part may file a complaint. The complaint may be filed
by an authorized representative. A complaint alleging employment
discrimination must identify at least one individual aggrieved by
[[Page 122]]
such discrimination. Complaints solely alleging employment
discrimination against an individual on the basis of race, color,
national origin, sex or religion shall be processed under the procedures
for complaints of employment discrimination filed against recipients of
Federal assistance (see 28 CFR part 42, subpart H and 29 CFR part 1691).
Complainants are encouraged but not required to make use of any
grievance procedure established under Sec. 7.90 before filing a
complaint. Filing a complaint through a grievance procedure does not
extend the 180 day calendar requirement of paragraph (b)(2 of this
section.
(b) Where, when and how to file complaint. The complainant may file
a complaint at any EPA office. The complaint may be referred to the
region in which the alleged discriminatory acts occurred.
(1) The complaint must be in writing and it must describe the
alleged discriminatory acts which violate this part.
(2) The complaint must be filed within 180 calendar days of the
alleged discriminatory acts, unless the OCR waives the time limit for
good cause. The filing of a grievance with the recipient does not
satisfy the requirement that complaints must be filed within 180 days of
the alleged discriminatory acts.
(c) Notification. The OCR will notify the complainant and the
recipient of the agency's receipt of the complaint within five (5)
calendar days.
(d) Complaint processing procedures. After acknowledging receipt of
a complaint, the OCR will immediately initiate complaint processing
procedures.
(1) Preliminary investigation. (i) Within twenty (20) calendar days
of acknowledgment of the complaint, the OCR will review the complaint
for acceptance, rejection, or referral to the appropriate Federal
agency.
(ii) If the complaint is accepted, the OCR will notify the
complainant and the Award Official. The OCR will also notify the
applicant or recipient complained against of the allegations and give
the applicant or recipient opportunity to make a written submission
responding to, rebutting, or denying the allegations raised in the
complaint.
(iii) The party complained against may send the OCR a response to
the notice of complaint within thirty (30) calendar days of receiving
it.
(2) Informal resolution. (i) OCR shall attempt to resolve complaints
informally whenever possible. When a complaint cannot be resolved
informally, OCR shall follow the procedures established by paragraphs
(c) through (e) of Sec. 7.115.
(ii) [Reserved]
(e) Confidentiality. EPA agrees to keep the complainant's identity
confidential except to the extent necessary to carry out the purposes of
this part, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder. Ordinarily in complaints of
employment discrimination, the name of the complainant will be given to
the recipient with the notice of complaint.
(f) [Reserved]
(g) Dismissal of complaint. If OCR's investigation reveals no
violation of this part, the Director, OCR, will dismiss the complaint
and notify the complainant and recipient.
Sec. 7.125 Coordination with other agencies.
If, in the conduct of a compliance review or an investigation, it
becomes evident that another agency has jurisdiction over the subject
matter, OCR will cooperate with that agency during the continuation of
the review of investigation. EPA will:
(a) Coordinate its efforts with the other agency, and
(b) Ensure that one of the agencies is designated the lead agency
for this purpose. When an agency other than EPA serves as the lead
agency, any action taken, requirement imposed, or determination made by
the lead agency, other than a final determination to terminate funds,
shall have the same effect as though such action had been taken by EPA.
Sec. 7.130 Actions available to EPA to obtain compliance.
(a) General. If compliance with this part cannot be assured by
informal means, EPA may terminate or refuse to award or to continue
assistance.
[[Page 123]]
EPA may also use any other means authorized by law to get compliance,
including a referral of the matter to the Department of Justice.
(b) Procedure to deny, annul, suspend or terminate EPA assistance.
(1) OCR finding. If OCR determines that an applicant or recipient is
not in compliance with this part, and if compliance cannot be achieved
voluntarily, OCR shall make a finding of noncompliance. The OCR will
notify the applicant or recipient (by registered mail, return receipt
requested) of the finding, the action proposed to be taken, and the
opportunity for an evidentiary hearing.
(2) Hearing. (i) Within 30 days of receipt of the above notice, the
applicant or recipient shall file a written answer, under oath or
affirmation, and may request a hearing.
(ii) The answer and request for a hearing shall be sent by
registered mail, return receipt requested, to the Chief Administrative
Law Judge (ALJ) (A-110), United States Environmental Protection Agency,
401 M Street, SW., Washington, DC 20460. Upon receipt of a request for a
hearing, the ALJ will send the applicant or recipient a copy of the
ALJ's procedures. If the recipient does not request a hearing, it shall
be deemed to have waived its right to a hearing, and the OCR finding
shall be deemed to be the ALJ's determination.
(3) Final decision and disposition. (i) The applicant or recipient
may, within 30 days of receipt of the ALJ's determination, file with the
Administrator its exceptions to that determination. When such exceptions
are filed, the Administrator may, within 45 days after the ALJ's
determination, serve to the applicant or recipient, a notice that he/she
will review the determination. In the absence of either exceptions or
notice of review, the ALJ's determination shall constitute the
Administrator's final decision.
(ii) If the Administrator reviews the ALJ's determination, all
parties shall be given reasonable opportunity to file written
statements. A copy of the Administrator's decision will be sent to the
applicant or recipient.
(iii) If the Administrator's decision is to deny an application, or
annul, suspend or terminate EPA assistance, that decision becomes
effective thirty (30) days from the date on which the Administrator
submits a full written report of the circumstances and grounds for such
action to the Committees of the House and Senate having legislative
jurisdiction over the program or activity involved. The decision of the
Administrator shall not be subject to further administrative appeal
under EPA's General Regulation for Assistance Programs (40 CFR part 30,
subpart L).
(4) Scope of decision. The denial, annulment, termination or
suspension shall be limited to the particular applicant or recipient who
was found to have discriminated, and shall be limited in its effect to
the particular program or the part of it in which the discrimination was
found.
Sec. 7.135 Procedure for regaining eligibility.
(a) Requirements. An applicant or recipient whose assistance has
been denied, annulled, terminated, or suspended under this part regains
eligibility as soon as it:
(1) Provides reasonable assurance that it is complying and will
comply with this part in the future, and
(2) Satisfies the terms and conditions for regaining eligibility
that are specified in the denial, annulment, termination or suspension
order.
(b) Procedure. The applicant or recipient must submit a written
request to restore eligibility to the OCR declaring that it has met the
requirements set forth in paragraph (a) of this section. Upon
determining that these requirements have been met, the OCR must notify
the Award Official, and the applicant or recipient that eligibility has
been restored.
(c) Rights on denial of restoration of eligibility. If the OCR
denies a request to restore eligibility, the applicant or recipient may
file a written request for a hearing before the EPA Chief Administrative
Law Judge in accordance with paragraph (c) Sec. 7.130, listing the
reasons it believes the OCR was in error.
[[Page 124]]
Appendix A to Part 7--EPA Assistance Programs as Listed in the ``Catalog
of Federal Domestic Assistance''
1. Assistance provided by the Office of Air, Noise and Radiation
under the Clean Air Act of 1977, as amended; Pub. L. 95-95, 42 U.S.C.
7401 et seq. (ANR 66.001)
2. Assistance provided by the Office of Air, Noise and Radiation
under the Clean Air Act of 1977, as amended; Pub. L. 95-95, 42 U.S.C.
7401 et seq. (ANR 66.003)
3. Assistance provided by the Office of Water under the Clean Water
Act of 1977, as amended; sections 101(e), 109(b), 201-05, 207, 208(d),
210-12, 215-19, 304(d)(3), 313, 501, 502, 511 and 516(b); Pub. L. 97-
117; Pub. L. 95-217; Pub. L. 96-483; 33 U.S.C. 1251 et seq. (OW 66.418)
4. Assistance provided by the Office of Water under the Clean Water
Act of 1977, as amended; section 106; Pub. L. 95-217; 33 U.S.C. 1251 et
seq. (OW 66.419)
5. Assistance provided by the Office of Water under the Clean Water
Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C. 1251 et seq. (OW
66.426)
6. Assistance provided by the Office of Water under the Public
Health Service Act, as amended by the Safe Drinking Water Act, Pub. L.
93-523; as amended by Pub. L. 93-190; Pub. L. 96-63; and Pub. L. 93-502.
(OW 66.432)
7. Assistance provided by the Office of Water under the Safe
Drinking Water Act, Pub. L. 93-523, as amended by Pub. L. 96-63, Pub. L.
95-190, and Pub. L. 96-502. (OW 66.433)
8. Assistance provided by the Office of Water under the Clean Water
Act of 1977, section 205(g), as amended by Pub. L. 95-217 and the
Federal Water Pollution Control Act, as amended; Pub. L. 97-117; 33
U.S.C. 1251 et seq. (OW 66.438)
9. Assistance provided by the Office of Water under the Resource
Conservation and Recovery Act of 1976; as amended by the Solid Waste
Disposal Act; Pub. L. 94-580; section 3011, 42 U.S.C. 6931, 6947, 6948-
49. (OW 66.802).
10. Assistance provided by the Office of Research and Development
under the Clean Air Act of 1977, as amended; Pub. L. 95-95; 42 U.S.C. et
seq.; Clean Water Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C.
1251 et seq., section 8001 of the Solid Water Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976; Pub. L. 94-580;
42 U.S.C. 6901, Public Health Service Act as amended by the Safe
Drinking Water Act as amended by Pub. L. 95-190; Federal Insecticide,
Fungicide and Rodenticide Act; Pub. L. 95-516; 7 U.S.C. 136 et seq., as
amended by Pub. L.'s 94-140 and 95-396; Toxic Substances Control Act; 15
U.S.C. 2609; Pub. L. 94-469. (ORD 66.500)
11. Assistance provided by the Office of Research and Development
under the Clean Air Act of 1977, as amended; Pub. L. 95-95; 42 U.S.C.
7401 et seq. (ORD 66.501)
12. Assistance provided by the Office of Research and Development
under the Federal Insecticide, Fungicide and Rodenticide Act, Pub. L.
95-516, 7 U.S.C. 136 et seq., as amended by Pub. L.'s 94-140 and 95-396.
(ORD 66.502)
13. Assistance provided by the Office of Research and Development
under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976; 42 U.S.C. 6901, Pub. L. 94-580,
section 8001. (ORD 66.504)
14. Assistance provided by the Office of Research and Development
under the Clean Water Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C.
1251 et seq. (ORD 66.505)
15. Assistance provided by the Office of Research and Development
under the Public Health Service Act as amended by the Safe Drinking
Water Act, as amended by Pub. L. 95-190 (ORD 66.506)
16. Assistance provided by the Office of Research and Development
under the Toxic Substances Control Act; Pub. L. 94-469; 15 U.S.C. 2609;
section 10. (ORD 66.507)
17. Assistance provided by the Office of Administration, including
but not limited to: Clean Air Act of 1977, as amended, Pub. L. 95-95; 42
U.S.C. 7401 et seq., Clean Water Act of 1977, as amended; Pub. L. 95-
217; 33 U.S.C. 1251 et seq.; Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976; 42 U.S.C. 6901; Pub. L.
94-580; Federal Insecticide, Fungicide and Rodenticide Act; Pub. L. 92-
516; 7 U.S.C. 136 et seq. as amended by Pub. L.'s 94-140 and 95-396;
Public Health Service Act, as amended by the Safe Drinking Water Act, as
amended by Pub. L. 95-190. (OA 66.600)
18. Assistance provided by the Office of Administration under the
Clean Water Act of 1977, as amended; Pub. L. 95-217; section 213; 33
U.S.C. 1251 et seq. (OA 66.603)
19. Assistance provided by the Office of Enforcement Counsel under
the Federal Insecticide and Rodenticide Act, as amended; Pub. L. 92-516;
7 U.S.C. 136 et seq., as amended by Pub. L. 94-140, section 23(a) and
Pub. L. 95-396. (OA 66.700)
20. Assistance provided by the Office of Solid Waste and Emergency
Response under the Comprehensive Environmental Responses, Compensation
and Liability Act of 1980; Pub. L. 96-510, section 3012, 42 U.S.C. 9601,
et seq. (OSW--number not to be assigned since Office of Management and
Budget does not catalog one-year programs.)
21. Assistance provided by the Office of Water under the Clean Water
Act as amended; Pub. L. 97-117, 33 U.S.C. 1313. (OW--66.454)
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