PART 7—NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY Authority: 42 U.S.C. 2000d to 2000d-7 and 6101 et seq.; Source: 49 FR 1659, Jan. 12, 1984, unless otherwise noted. Subpart A—General § 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; the Age Discrimination Act of 1975, as amended; and section 13 of the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, (collectively, the Acts). [75 FR 31707, June 4, 2010] § 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 (§ 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 Federal Domestic Assistance § 7.20 Responsible agency officers. (a) The EPA Office of Civil Rights (OCR) is responsible for developing and administering EPA's means of ensuring compliance 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. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 7.25 Definitions. As used in this part: Action, Administrator Age, Age distinction, Age-related term, Alcohol abuse Applicant EPA assistance Assistant Attorney General Award Official Drug abuse (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 EPA assistance (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 Handicapped person: (a) Handicapped person handicapped person (b) As used in this paragraph, the phrase: (1) Physical or mental impairment (2) Major life activities (3) Has a record of such an impairment (4) Is regarded as having an impairment (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. Normal operation, Office of Civil Rights Program or activity program (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system; (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3) of this definition. Project Officer EPA assistance Qualified handicapped person (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 1 (a) American Indian or Alaskan native. (b) Asian or Pacific Islander. (c) Black and not of Hispanic origin. (d) Hispanic. (e) White, not of Hispanic origin. Recipient Section 13 Statutory objective, United States State [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003; 75 FR 31707, June 4, 2010] Subpart B—Discrimination Prohibited on the Basis of Race, Color, National Origin or Sex § 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. § 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 or activity; (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 or activity; (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 or activity; (4) Subject a person to segregation in any manner or separate treatment in any way related to receiving services or benefits under the program or activity; (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 or activity, such as a local sanitation board or sewer authority; (6) Discriminate in employment on the basis of sex in any program or activity subject to section 13, or on the basis of race, color, or national origin in any program or activity whose purpose is to create employment; or, by means of employment discrimination, deny intended beneficiaries the benefits of EPA assistance, 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 or activity 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 or activity 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 or activity 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 § 7.30. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] Subpart C—Discrimination Prohibited on the Basis of Handicap § 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. § 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 or activity; (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 or activity; (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 or activity. (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 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 aid, benefits, or services limited by Federal statute or Executive Order to handicapped persons or a different class of handicapped persons is not prohibited by this subpart. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 7.55 Separate or different aid, benefits, or services. 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 or activity receiving EPA assistance. Recipients shall administer programs or activities in the most integrated setting appropriate to the needs of qualified handicapped persons. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 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 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 for leaves of absence to pursue training; (8) Employer sponsored activities, including those that are social or recreational; 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 apprenticeships. (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 or activity. (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. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 7.65 Accessibility. (a) General. (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 ensuring compliance in existing facilities. (c) Deadlines. (2) Recipients having an existing facility which does require alterations in order to comply with paragraph (a) of this section must prepare a transition plan in accordance with § 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. (e) Structural and financial feasibility. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 7.70 New construction. (a) General. (b) Conformance with Uniform Federal Accessibility Standards. (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] § 7.75 Transition plan. If structural changes to facilities are necessary to make the program or activity accessible to handicapped persons, a recipient must prepare a transition plan. (a) Requirements. (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 accessibility under § 7.65(a), 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. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] Subpart D—Requirements for Applicants and Recipients § 7.80 Applicants. (a) Assurances General. (2) Duration of assurance Real property. (ii) Personal property. (iii) Other forms of assistance. (b) Wastewater treatment project. (c) Compliance information. (1) Notice of any lawsuit pending against the applicant alleging discrimination on the basis of race, color, sex, age, 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) [49 FR 1659, Jan. 12, 1984, as amended at 75 FR 31707, June 4, 2010] § 7.85 Recipients. (a) Compliance information. (1) A brief description of any lawsuits pending against the recipient that allege discrimination which this part prohibits; (2) Racial/ethnic, national origin, age, 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. (c) Self-evaluation. (2) Each recipient employing the equivalent of 15 or more full time employees may be required to complete a written self-evaluation of its compliance under the Age Discrimination Act as part of a compliance review or complaint investigation. This self-evaluation will pertain to any age distinction imposed in its program or activity receiving Federal assistance from EPA. If required, each recipient's self-evaluation shall identify and justify each age distinction imposed by the recipient and each recipient shall take corrective and remedial action whenever a self-evaluation indicates a violation of the Age Discrimination Act. (d) Preparing compliance information. In preparing compliance information, a recipient must: (1) [Reserved] (2) Use the racial classifications set forth in § 7.25 in determining categories of race, color or national origin. (e) Maintaining compliance information. (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. (Approved by the Office of Management and Budget under control number 2000-0006) [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003; 75 FR 31707, June 4, 2010] § 7.90 Grievance procedures. (a) Requirements. (b) Exception. § 7.95 Notice of nondiscrimination. (a) Requirements. (b) Deadline. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003; 75 FR 31707, June 4, 2010] § 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 § 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. § 7.110 Preaward compliance. (a) Review of compliance information. (b) Voluntary compliance. (c) Refusal to comply. [49 FR 1659, Jan. 12, 1984, as amended at 75 FR 31707, June 4, 2010] § 7.115 Postaward compliance. (a) Periodic review. (b) Notice of review. (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. (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. (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. (f) Form of voluntary compliance agreements. (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. § 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. see (b) Where, when and how to file complaint. (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. (d) Complaint processing procedures. (1) Preliminary investigation. (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. (iv) Complaints alleging age discrimination under the Age Discrimination Act of 1975 will be referred to a mediation agency in accordance with § 7.180. (2) Informal resolution. (ii) [Reserved] (e) Confidentiality. (f) [Reserved] (g) Dismissal of complaint. [49 FR 1659, Jan. 12, 1984, as amended at 75 FR 31707, June 4, 2010] § 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. § 7.130 Actions available to EPA to obtain compliance. (a) General. (b) Procedure to deny, annul, suspend or terminate EPA assistance OCR finding. (2) 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, 1200 Pennsylvania Ave., NW., 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. (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. [49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003] § 7.135 Procedure for regaining eligibility. (a) Requirements. (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. (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) § 7.130, listing the reasons it believes the OCR was in error. Subpart F—Discrimination Prohibited on the Basis of Age Source: 75 FR 31707, June 4, 2010, unless otherwise noted. § 7.140 General prohibition. No person in the United States may, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving EPA assistance. § 7.145 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 age: (1) Exclude any individuals from, deny them the service, aid or benefits of, or subject them to discrimination under, a program or activity; (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 or activity; (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 or activity; (4) Subject a person to segregation in any manner or separate treatment in any way related to receiving services or benefits under the program or activity; (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 or activity, such as a local sanitation board or sewer authority; (6) In administering a program or activity receiving Federal financial assistance in which the recipient has previously discriminated on the basis of age, 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 or activity which have the effect of subjecting individuals to discrimination because of their age, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular age. (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 or activity to which this part applies on the ground of age; 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 § 7.140. § 7.150 Exceptions to the rules against age discrimination—normal operation or statutory objective of any program or activity. A recipient is permitted to take an action, otherwise prohibited by §§ 7.140 and 7.145, if the action reasonably takes into account age as a factor necessary to the normal operation or achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity if: (a) Age is used as a measure or approximation of one or more other characteristics; (b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; (c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and (d) The other characteristic(s) are impractical to measure directly on an individual basis. § 7.155 Exceptions to the rules against age discrimination—reasonable factors other than age. A recipient is permitted to take an action otherwise prohibited by §§ 7.140 and 7.145 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective. § 7.160 Burden of proof. The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 7.150 and 7.155 is on the recipient of EPA financial assistance. § 7.165 Special benefits for children and the elderly. If a recipient operating a program which serves the elderly or children in addition to persons of other ages, provides special benefits to the elderly or to children the provision of those benefits shall be presumed to be voluntary affirmative action provided that it does not have the effect of excluding otherwise eligible persons from participation in the program. § 7.170 Alternative funds disbursal procedures. (a) When EPA withholds funds from a recipient under Subpart F of these regulations, the Administrator may disburse the withheld funds directly to an alternate recipient: Any public or non-profit private organization or agency, or State or political subdivision of the State. (b) The Administrator will require any alternate recipient to demonstrate the ability to achieve the goals of the Federal statute authorizing the funds and these regulations (40 CFR Part 7). § 7.175 Exhaustion of administrative remedy. (a) A complainant may file a civil action following the exhaustion of administrative remedies under the Age Discrimination Act. Administrative remedies are exhausted if: (1) 180 days have elapsed since the complainant filed the complaint and EPA has made no finding with regard to the complaint; or (2) EPA issues any finding in favor of the recipient. (b) If EPA fails to make a finding within 180 days or issues a finding in favor of the recipient, EPA shall: (1) Promptly advise the complainant of this fact; and (2) Advise the complainant of his or her right to bring a civil action for injunctive relief; and (3) Inform the complainant that: (i) The complainant may bring a civil action only in a United States district court for the district in which the recipient is found or transacts business; (ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint; (iii) Before commencing the action, the complainant shall give 30 days notice by registered mail to the Secretary of the Department of Health and Human Services, the Administrator, the Attorney General of the United States, and the recipient; (iv) The notice must state: The alleged violation of the Age Discrimination Act; the relief requested; the court in which the complainant is bringing the action; and, whether or not attorney's fees are demanded in the event the complainant prevails; and (v) The complainant may not bring an action if the same alleged violation of the Age Discrimination Act by the same recipient is the subject of a pending action in any court of the United States. § 7.180 Mediation of age discrimination complaints. (a) The OCR will refer all accepted complaints alleging age discrimination to the Mediation Agency designated by the Secretary of the Department of Health and Human Services. (b) Both the complainant and the recipient must participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. The recipient and the complainant must meet with the mediator at least once before the OCR will accept a judgment that an agreement is not possible. The recipient and the complainant, however, need not meet with the mediator at the same time. (c) If the complainant and the recipient reach an agreement, the mediator must prepare a written statement of the agreement and have the complainant and recipient sign it. The mediator will send a copy of the agreement to the OCR, which will take no further action on the complaint unless the complainant or the recipient fails to comply with the agreement. (d) The mediator must protect the confidentiality of all information obtained in the course of the mediation process. No mediator may testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the agency appointing the mediator. (e) Mediation ends after sixty (60) days from the time EPA received the complaint or if: (1) An agreement is reached; or (2) The Mediator determines that an agreement cannot be reached. (f) The mediator must return unresolved complaints to OCR to be processed in accordance with the procedure in § 7.120. Appendix A to Part 7—Types of EPA Assistance 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. 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. 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. 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. 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. 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. 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. et seq., et seq., 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. 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., 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. 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., et seq.; et seq. 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. 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., 20. Assistance provided by the Office of Land and Emergency Management under the Comprehensive Environmental Responses, Compensation and Liability Act of 1980; Pub. L. 96-510, section 3012, 42 U.S.C. 9601, et seq. 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) [49 FR 1659, Jan. 12, 1984, as amended at 80 FR 77577, Dec. 15, 2015]