UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

MAR 1 8 L005
OFFICE OF
CIVIL RIGHTS •

·RETURN RECEIPT REQUESTED
Certified Mail No. 70031680000499230059

In Reply Refer to:
EPA File No. 03R-04-R2

Partnership for Onondaga Creek
c/o Alma L. Lowry
Visiting Professor of Law/Director
Public Interest Law Firm
Office of Clinical Legal Education
Syracuse University College of Law
P.O. Box 6543
Syracuse, New York 13217-6543

Re: Dismissal of Administrative Complaint 3R-04-R2 (Midland Avenue Regional
Treatment Facility. Syracuse, New York)
Dear Professor Lowry:
This letter concerns the April 9, 2004, administrative complaint that the Public Interest
Law Firm (PILF) filed with the U.S. Environmental Protection Agency (EPA) Office of Civil
Rights (OCR) on behalf of the Partnership for Onondaga Creek (POC) about the Midland Avenue
Regional Treatment Facility (RTF) in Syracuse, New York. The complaint alleged that Onondaga
County (County) and the New York State Department ofEnvironmental Conservation
(NYSDEC) had violated Title VI of the Civil Rights Act of 1964 (42 U.S. C. A § 2000d et seq.)
(Title VI) and EPA's regulations implementing Title VI (40 C.F.R. Part 7) by adopting and
approving the Midland Avenue RTF in December 2003. According to the complaint, the Midland
Avenue RTF would be located in, and have an adverse impact on, a predominantly AfricanAmerican neighborhood. As explained below, OCR is dismissing the complaint because EPA has
concluded that the Midland Avenue RTF will not have a significant adverse impact.
Complaint Sunuitary
On April 9, 2004, POC filed an administrative complaint under Title VI and 40 C.P.R.
Part 7 asserting two allegations. First, the complaint alleged that Onondaga County and
NYSDEC had "engaged in a continuing pattern of discriminatory conduct related to the failure to
provide adequate and meaningful public participation opportunities to the predominately AfricanAmerican residents of the Midland Avenue community regarding the Midland Avenue RTF."

I
Internet Address {URL) " http:/Jwww.epa.gov
Rocyclod/Reeycl~b[e •Prinled wHh Vegelable Oil Based Inks on Recycled Paper (M!nlmum 20% Pos1consumer)

 Partnership for Onondaga Creek Title VI Complaint, OCR Case Number 03R-04-R2, received
April9, 2004. Additionally, the complaint alleged that "the County's proposal, and the NYSDEC
approval, of the construction and operation of the Midland Avenue RTF will have adverse

disparate impacts upon the predominately African-American residents of the Midland Avenue
community." Id.

The first allegation was rejected as untimely. Letter from Karen Higginbotham, Director,
Office of Civil Rights, U.S. EPA, to Partnership for Onondaga Creek, re: Partial
Acceptance/Partial Rejection at 2 (Sept. 20, 2004). Pursuant to EPA's Title VI regulations,
complaints must be filed within 180 days of the alleged discriminatory act. 40 C.F.R. § 7.120
(b)(2). Although POC's April 9, 2004, complaint described a series of eventsrelated to the

alleged failure to provide adequate and meaningful public participation, it did not describe an
alleged discriminatory act by either the County or NYSDEC that occurred within 180 days of the
date that the complaint was filed with EPA. See generally, Letter from Karen Higginbotham,
Director, OCR (Sept. 20, 2004). Accordingly, by letter dated July 14, 2004, OCR asked POC to
identify an alleged discriminatory act taken by the County within 180 days of the filing of the
complaint. 40 C.F.R. § 7.120 (b)(2).
By letter dated July 30, 2004, POC alleged that the County refused, in a March 15, 2004,
letter,_ to provide a member of the public with information about the proposed or planned
alignment for certain sewer pipes. Letter from Alma Lowry, Visiting Assistant Professor of Law,
Director/Public Interest Law Firm (July 30, 2004). In its March letter, however, the County did
not refuse to provide information; rather, it explained that it did not have the information that was
requested. ld OCR therefore concluded that the County's March 15, 2004, letter did not
constitute an "alleged incident of failure to provide adequate and meaningful public participation,"
and rejected the public participation allegation because POC had not identified an alleged
discriminatory act related to public participation that occurred within 180 days of the filing of the
complaint to support its allegation of a continuing pattern of discrimination in public participation.

ld
The second allegation was accepted for investigation on September 20, 2004. Letter from
Karen Higginbotham, Director, OCR, at 2 (Sept. 20, 2004). Specifically, the allegation states that
the County and NYSDEC violated EPA's regulations at 40 C.F.R. Part 7 by approving an
Engineering Design Report and Midland Avenue RTF and Conveyances Facility Plan. Id
Additionally, POC alleges that the County's proposal and NYSDEC's approval will allow

construction and operation of the Midland Avenue RTF and, therefore, result in a variety of
adverse disparate impacts on the African-American residents of the Midland Avenue community.

ld
Statement of OCR's Authority to Investigate
Section 601 of Title VI prohibits discrimination based on race, color, or national origin
under any program or activity receiving federal financial assistance. 42 U.S. C. § 2000d. This

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 section prohibits intentional discrimination. See Alexander v. Chaate, 469 U.S. 287, 293 (1985);
Guardians Ass 'n v. Civil Serv. Comm 'n, 463 U.S. 582, 607-08 (1983). In addition, Title VI
"authorize[s] and direct[s federal departments and agencies that extend federal financial

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assistance "to effectuate-the provisions of [Title VI] ... by issuing rules, regulations, or orders of
general applicability." 42 U.S. C. § 2000d-l.
EPA's Title VI implementing regulations are codified at 40 C.F.R. Part 7. Under these
regulations, a recipient of EPA financial assistance may not intentionally discriminate or use
policies or practices that have a discriminatory effect based on race, color, or national origin. As
provided at 40 C.F.R § 7.120, administrative complaints alleging discriminatory acts in violation
of 40 C.F.R. Part 7 may be filed with the Agency.

In detennining whether a recipient's procedures or practices have had a disparate impact
on a protected group, OCR will begin its analysis by determining whether the recipient utilized a
facially neutral procedure or practice that may have a disproportionate impact on a protected
group. Lany P. v. Riles, 793 F.2d 969, 982 (9th Cir. 1984); Elston, 997 F.2d at 1407 (citing
Georgia State Conf, 775 F.2d at 1417). In addition, OCR will determine whether the alleged
impact on that group is significantly adverse. NAACP v. Medical Center, Inc., 657 F.2d 1332 (3d
Cir. 1981); cf Wards Cove Packing Co., Inc. v. Atonia, 490 U.S. 642, 656-57 (1989) (Title VII
case); see Bryan v. Koch, 627 F.2d 612, 617 (2d Cir. 1980). If OCR cannot establish the prima
facie elements of a disparate-impact claim, then the Agency must make a finding of no violation,
and dismiss the complaint. 40 C.F.R. § 7.120(g).
Description of OCR's Investigation
The U.S. Department of Justice (DOJ) has published guidance on procedures for
investigating complaints alleging violations of Title VI and Title VI implementing regulations.

See, INvESTIGATION PROCEDURES MANUAL FOR 1HE INVESTIGATION AND RESOLUTION OF
COivlPLAmTS ALLEGING VIOLATIONS OF TITLE VI AND OTHER NONDISCRIMJNATION STATUTES

(Sept. 1998). The information and data collected, and the approach developed, depends on the
nature and complexity of the issues involved in the case. DOJ Manual at 8-9, 61, 142. Evidence
gathered must be relevant, material, and reliable, and may be documentary or testimonial, or
direct, circumstantial, comparative, or statistical. Id at 79-87, 97-98. Investigations do not
necessarily involve on-site visits. Id at 1 I 3. On-site investigations are generally conducted only
when necessary to gather relevant and material information that cannot be obtained by other
means. Id at 113-114. Interviews are conducted when necessary to obtain specific information
that will refute or support the allegations in the complaint. Jd at 102, 117-119.
When developing the investigation plan, OCR determined that an on-site investigation and
interviews were not necessary because the available documentation satisfactorily addressed the
issues raised in the complaint. Accordingly, this investigation was conducted by reviewing
documents provided by the complainants, recipients, and EPA Region 2. During the course of the
investigation, OCR visited the EPA Region 2 office to review all primary and supporting

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 ·documentation in the administrative record regarding the Midland Avenue RTF. While at the
regional office, OCR reviewed staff files for information pertaining to the analysis and final
drafting of the Environmental Assessment. OCR has principally relied on a rev.iew of the
unusually extensive and -complete record of the development and approval of the Syracuse
combined sewer overflow (CSO) abatement program, which includes the Midland Avenue RTF.

Factual Background
Initial siting studies for the Midland Avenue RTF were conducted by Onondaga County as
part of a state- and federally-sponsored facilities planning study for the control and abatement of

CSOs in the late 1970s. ALTERNATIVE SITEEVALUATION0VERVIEWDOCUMENT (Nov. 1999)
(ASE) at 2-1. A recommended CSO abatement master plan for the City of Syracuse metropolitan
service area was presented in a report entitled Combined Sewer Overflow Abatement Program in
June 1979. Id The current site for the Midland Avenue RTF was one of six sites selected for
regional treatment facilities. Id The site was selected "due to restrictions in the County's
existing Main Interceptor Sewer (MIS) upstream of the Midland site which did not allow large
quantities of upstream flows to enter the l\.1IS," and because it was "at the general confluence of
three major interceptor sewers in the County's combined sewer system." Id at 2-1 - 2-2. Three
public meetings were held in June and August 1979 on the CSO master plan, and two public
hearings, one in August 1979 (which included a preliminary architectural elevation for the
Midland Avenue RTF) and one in January 1983. /d. at 2-3.

In 1988, the Atlantic States Legal Foundation (ASLF) filed a lawsuit against Onondaga
County alleging that the City of Syracuse's sewer system (which was under the control of the
County) did not comply with the Federal Clean Water Act because the sewer system discharged
mixed storm water and untreated sewage during major storms (CSOs). 2000 U.S. Dist. LEXIS
12511 at *2; AMENDED CONSENT JUDGBviENT, Atlantic States Legal Foundation v. Onondaga
County Dept. of Drainage and Sanitation, Docket No. 88-CV-0066 (N.D. N.Y. Jan. 20, 1998) at
1-2.

In February 1989, ASLF, NYSDEC, and Onondaga County reached a settlement and
entered into a consent judgment "obligating the County to, inter alia, develop a plan ('Municipal
Compliance Plan' or 'MCP') that would bring the County's eftluent discharges from Metro [the
County's Metropolitan Sewage Treatment Plant] and the CSOs into compliance with the States'
eftluent limitations and water quality standards, and implement such plan." ACJ at 2; 2000 U.S.

Dist. LEXIS 12511 at *2-*3.
In January 1996, the County issued a Municipal Compliance Plan, developed in
consultation with NYSDEC and EPA, that included the original Midland Avenue RTF site. ASE,
at 2-3; ACJ, at 3; MIDLAND AVENUE REGIONAL TREATMENT FACILITY AND CoNVEYANCES
FACILITJESPLAN (Feb. 1999), at 1-1. ASLF and NYSDEC concluded, however, that the
County's Municipal Compliance Plan did not satisfY the requirements of the 1989 consent
judgment and, in September 1997, entered into a settlement agreement with the County "that

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 would establish a framework for the approval and timely implementation of the various upgrades
and other measures that are needed to bring the County's effluent discharges from Metro and the
CSOs into compliance with the State's effluent limitations and water quality standards." ACJ, at
4.
The Midland Avenue RTF is one of a number of improvements to the storm and sanitary
sewer system in the City of Syracuse that are being constructed pursuant to the ACJ issued by the
· Federal District Court for the Northern District ofNew York in January 1998. AMENDED
CONSENT JUDGEMENT, Atlantic States Legal Foundation v. Onondaga County Dep 't of Drainage
and Sanitation, Docket No. 88-CV-0066 (N.D.N.Y. Jan. 20, 1998). The ACJ replaced the
consent judgment issued by the court in February 1989. I d., at 2, 6; ASLFv. EPA, 2000 U.S.

Dist. LEXIS 12511, at *2-*3. The ACJ described a number of specific projects that Onondaga
County was required to construct and established a construction schedule. Among the "Major
CSO Projects" in the ACJ were the "Midland Avenue Conveyances Project" and the "Midland
Avenue Regional Treatment Facility ('RTF')." ACJ, APPENDIXB: CSO CONSTRUCTION
MILESTONE COMPLIANCE SCHEDULE.

The ACJ described the Midland Avenue RTF in detail and

specified the location and type offacility. Ibid. All of the work that the ACJ required the County

to do was subject to review and approval by NYSDEC "prior to the initiation of such work." Jd,
at 15.

In February 1999, the County submitted a facilities plan for the Ivlidland Avenue RTF to
NYSDEC. FEB. 1999FACILITIESPLAN.
In March 1999, the County held a public hearing on the Midland Avenue RTF based on an

Environmental Information Document (EID) that the County had submitted to EPA in November
1998 to use in preparing an environmental assessment (EA) required by the National
Enviromnental Policy Act (NEPA) (42 U.S.C.A. § 4321 et seq.). NOTICEOFPUBLICHEARING,
Proposed Midland Avenue Regional Treatment Facility and Conveyances Project (part of the
Amended Consent Judgment concerning Onondaga Lake) (undated); TRANsCRIPT, In the Matter

ofMidland Avenue Sew.'er Project (March 23, 1999); Environmental Infonnation Document:
Midland CSO Project (Nov. 1998). Based on the EID and other documents, EPA issued a
preliminary EA of, and Finding of No Significant Impact (FNSI) for, the Midland Avenue RTF in
July 1999. ENviRONMENTAL ASSESSMENT: MIDLAND AVENUE [CSO] ABATEMENT PROJECT,
Project# XP992581-01-I (July 16, 1999); PUBLIC NOTICE (July 16, 1999). After taking public
comment, EPA issued a final EAIFNSI and a Response-to-Comments (RtC) in December 1999.
RESPONSE TO COMMENTS ON THE MIDLAND A VENUE COMBINED SEWER OVERFLOW ABATEMENT
PROJECTFNSIIEA (Dec. 23, 1999).
Legal challenges to EPA's FNSI and EA by the ASLF, Syracuse United Neighbors
(SUN), and others (including individuals associated with POC) were rejected by the Federal
district court in August 2000 and by the Federal Second Circuit Court of Appeals in July 2001.
Atlantic States Legal Foundation, Inc., v. Browner, 2000 WL 1234659 (S.D. N.Y. Aug. 31,
2000); aff'd, Atlantic States Legal Foundation, Inc., v. Whitman, 14 Fed.Appx. 76, 2001 WL

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 792525 (2d Cir. July 10, 2001). In November 2002, the Federal district court issued an order
enforcing County condemnatiort of City property for construction of the RTF. Atlantic States
legal Foundation, Inc., v. The Onondaga Cow1ty Department ofDrainage and Scmitation, 233 F.
Supp. 2d 335 (N.D.NY Nov. 26, 2002).
In September 2001, the County submitted an updated facilities plan to NYSDEC. 2003
FACILITIES PLAN at 1-1; MIDLAND AVENUE [RTF] AND CONVEYANCES FACILITIES PLAN UPDATE
WTI11 FEBRUARY 1999 FACILITIES PLAN (Sept. 200 I). The updated 200 I facilities plan

"principally included updated service area overflow information and an updated project
phasing/implementation schedule, without any major changes to the location or design of the
Midland Avenue RTF. 2003 FACILITIES PLAN at 1-1.

The County submitted an amended facilities plan and a revised engineering design report
to NYSDEC in June 2003. MIDLAND AVENUE [RTF] AND CONVEYANCES FACILITIES PLAN
AMENDMENT (June 2003); MIDLAND AVENUE [RTF] AND CONVEYANCES PHASE TWO PROJECT
ENGINEERThl"G REPORT AMENDMENT (June 2003). The revised engineering design report
incorporat[ed] changes to the Phase II plan reflecting location of the RTF and underground
disinfection tank principally on Cental New York Regional Transportation Authority property
[newly acquired by Onondaga County through eminent domain] ... and location of a 2.5 mg
underground storage tank on fanner Syracuse urban Renewal Agency and City of Syracuse
property now owned by Onondaga County. LETIER from Michael Cunningham, Director,
Onondaga Lake Improvement Project, to Steven Eidt, Regional Water Engineer, NYS Dept. of
Envtl. Conservation Re: Revised Midland Engineering Design Report Resubmittal (June 15,
2003). The amendment reduced the size ofthe Midland Avenue RTF and moved it farther into an
industrial area and away from a residential area. ld The revised engineering report was approved
by NYSDEC in December 2003. LETTER from Mark Sanza, Associate Counsel, to Michael
Mattheisen, U.S. EPA, Re: Matter ofMidland Avenue RlF (Sept. 20, 2004).
Finding ofNo Significant Adverse Impact
In its JUly 1999 preliminary EA, EPA's Region 2 Office stated that its "decision is based
on a careful review of the environmental infonnation document, facility plan, and other
infonnation." The Region went on to state that their "environmental review of this project
indicates that no significant adverse environmental impacts will result from the proposed action."
The EAIFNSI approved the location of the RTF and concluded that any potential adverse effects
on the community surrounding the RTF were temporary and/or would be offset by the County's
measures to mitigate the environmental impacts and by the overall environmental benefits that the
RTF would provide. EAat 10-11.
EPA took public comment on the EAJFNSI and issued a final EAIFNSI and a Responseto-Comments (RIC) in December 1999. RESPONSE TO COMMENTS ON TilE MIDLAND AVENUE
COMBINED SEWER OVERFLOW ABATEMENTPROJECTFNSI/EA (Dec. 23, 1999). The only
comments received from private parties were from ASLF and SUN. Id. at 11.

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 In January 2004, EPA re-evaluated the Midland Avenue RTF based on changes to the

project as described in the amended facilities plan issued by Onondaga County in June 2003. Reevaluation ofMidland Avenue RTF FNSIIEA (Jan. !5, 2004). The changes, which were
"intended to further minimize the project's impact," added CSO storage capacity by means of a
2.5 million gallon underground storage tank, reduced the building size from 30,000 to 24,000
square feet, increased the distance from the nearest residence to the building and the underground
disinfection tank from 90 to 250 feet, reduced _the number of vortex units from 3 to 2, reduced the
number of pumps from 5 to 3, and reduced the frequency of operation from 50 times per year to 9
times per year. Id (The project now consists of a 2.5 million gallon underground storage tank,
an above-ground building housing two vortex liquid/solids separator units and associated
pumping, odor control, ventilation and control equipment, an underground disinfection tank, and
about 1,380 linear feet of sewer pipeline. Id) EPA Region 2, accordingly, re-affirmed its finding
of no significant environmental impact under NEP A
Pursuant to EPA's regulations for hnplementing NEPA ( 40 CFR Part 6), the project has
been re-evaluated to determine whether it or its associated environmental conditions have
changed significantly since issuance of the FNSIIEA Based on our re-evaluation, we have
determine that neither the project nor its associated environmental conditions have
changed significantly since issuance of the aforementioned FNSIIEA and its associated
Response to Comments. Accordingly, we believe that no significant adverse
environmental impact will result from the construction and operation of this project. This
project complies with the EPA's regulation for implementing NEP A ld
Conclusion
Based on the foregoing, OCR concludes that the location and design of the Midland
Avenue RTF will not have a significant adverse impact and, therefore, OCR does not find a prima
facie case of discriminatory effect on the surrounding neighborhood. The County and NYSDEC
utilized a facially neutral process in planning and approving the RTF. In addition, any potential
impacts on the Afiican-American community surrounding the RTF are not significant, are
mitigated by the County's efforts to minimize environmental impacts., or are offset by the benefits
that the RTF will provide to the community. Accordingly, neither NYSDEC nor Onondaga
County have violated Title VI or EPA's Title VI regulations with respect to the adopting and
approving of the Midland Avenue RTF. The administrative complaint that PILF filed on POC's
behalf is, therefore, dismissed.
If you have any questions, please contact Yasmin Yorker, Assistant Director of the OCR
External Compliance Program, at (202) 343-9682.
Sincerely,

v~oJcJ~:oct.,___
Karen D. Higginq§\!Jlrm
Director

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 cc:

Erin M. Crotty, Commissioner
New York State Department of
Environmental Conservation
625 Broadway
Albany, New Yo!k 12233-1011

Nicholas J. Pirro, County Executive
Onondaga County
Office of the County Executive
John H. Mulroy Civil Center, 14'' Floor
421 Montgomery Street

Syracuse, New York 13202
Stephen G. Pressman, Associate General Counsel
Civil Rights Law Office (MC 2399A)

Bany Hill, Director
Office ofEnviromnental Justice (MC 2201A)

Melva Hayden, Title VI Coordinator
EPARegion2

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