The West Virginia Department of Environmental Protection (“WVDEP”) promotes the full and fair participation of individuals with disabilities in all of its programs, services, and activities. The WVDEP is committed to providing individuals with disabilities equal opportunity to participate in or benefit from its programs, services, and activities, in accordance with Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) of 1990, the ADA Amendments Act of 2008 as amended, and all other pertinent nondiscrimination laws and regulations. The WVDEP recognizes that individuals with disabilities may need reasonable modifications to have equal opportunities to participate in or benefit from WVDEP's programs, services, and activities.  

As such, the WVDEP shall:  

1. Not deny any individual, on the basis of disability, the opportunity to participate in and benefit from WVDEP's programs, services, and activities.
2. Administer WVDEP's programs, services, and activities in the most integrated setting appropriate to the needs of individuals with disabilities.
3. Not impose eligibility criteria that screen out or tend to screen out individuals with disabilities from participating in any WVDEP program, service, or activity, unless the criteria are necessary for the provision of the program, service, or activity.
4. Not coerce, intimidate, retaliate against, or discriminate against any individual with a disability for exercising a right under Section 504 or other pertinent nondiscrimination laws, or for assisting or supporting another individual in exercising their right under Section 504 or other pertinent nondiscrimination laws.
5. Not impose a surcharge on individuals with disabilities for any costs incurred to comply with Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) of 1990, the ADA Amendments Act of 2008 as amended, and all other pertinent nondiscrimination laws and regulations; or
6. Not limit or separate individuals with disabilities, on the basis of disability, in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by other individuals.

This policy does not require the WVDEP to undertake any action that would fundamentally alter the nature of its programs, services, or activities, or that would pose a direct threat to the health or safety of participants in those programs, services, or activities. The WVDEP may impose safety requirements necessary for the safe operation of its services, programs, or activities.  

The WVDEP is committed to ensuring individuals with disabilities, including those with speech, hearing, or vision disabilities, receive “effective communication” ¹ so they can participate equally in WVDEP's programs, services, and activities.  

Upon request, or when necessary, the WVDEP will take appropriate steps to provide auxiliary aids and services to ensure effective communication for individuals with disabilities, including applicants and participants, unless doing so would cause an undue burden or fundamental alteration for the WVDEP.  

Auxiliary aids and services shall be provided at no cost to individuals with disabilities. The type of auxiliary aid or service necessary to ensure effective communication will vary depending on the length and complexity of the communication involved. In choosing possible auxiliary aids or services, the WVDEP shall give primary consideration to the preference of the individual with the disability, unless the WVDEP can show that another equally effective means of communication is available.  

Examples of auxiliary aids and services for people who are deaf or hard of hearing include qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videotext displays, and exchange of written notes.  

Examples of auxiliary aids and services for individuals with vision impairments include qualified readers, taped texts, audio recordings, Braille materials, large print materials, and assistance from WVDEP in locating items.  

Examples of auxiliary aids and services for individuals with speech impairments include TDDs, computer terminals, speech synthesizers, and communication boards. The WVDEP shall provide effective communication in a timely way that protects the privacy and independence of the individual with a disability. WVDEP shall not require an individual accompanying an individual with a disability to interpret or facilitate communication with the individual with a disability.  

To request auxiliary aids or services, please contact the WVDEP's Nondiscrimination Coordinator at least three days in advance at:  

Charlie Carl
Acting Non-Discrimination Coordinator
West Virginia Department of Environmental Protection
601 57th Street SE
Charleston, WV 25304
Phone: (304) 926-0440
Email: Charles.W.Carl@wv.gov  

For requests that are not received within three days in advance of the scheduled activity , the WVDEP shall attempt to provide reasonable modifications and/or auxiliary aids or services, if possible, to ensure meaningful participation by individuals of disabilities. Denials of requests for auxiliary aids or services shall be in writing to include an explanation of an individual's right to pursue WVDEP's Discrimination Complaint and Compliance Review/Grievance Procedure.  

The WVDEP may reasonably modify its policies, practices, or procedures, upon request, for an individual with a disability, when the modification is necessary to participate in a WVDEP program, service, or activity. A reasonable modification is a change or an exception to a policy, practice, or procedure that allows an individual with a disability to have equal access to WVDEP's programs, services, or activities. A request for a reasonable modification may not always use the terms “reasonable modification,” “Section 504,” or “ADA.”  

When possible, reasonable modifications should be requested in advance. When requesting a reasonable modification to WVDEP, an individual with a disability is not required to provide medical documentation but should describe what auxiliary aids or services are needed to help them effectively and meaningfully communicate.  

Individuals with a disability who need a reasonable modification should submit a request as early as possible, at least 24 hours before the modification is needed. For requests that are not received 24 hours in advance, WVDEP shall attempt to provide the reasonable modification, if possible.  

Requests for reasonable modifications that have little or no cost and pose little or no administrative burden, such as assistance filling out a form, providing a chair, or reading printed materials aloud, can be granted without advanced notice by WVDEP. Requests for modifications shall be submitted to the WVDEP's Nondiscrimination Coordinator at:  

Charlie Carl
Acting Non-Discrimination Coordinator
West Virginia Department of Environmental Protection
601 57th Street SE
Charleston, WV 25304
Phone: (304) 926-0440
Email: Charles.W.Carl@wv.gov  

The WVDEP may not decline a requested modification without consulting with the WVDEP Nondiscrimination Coordinator .  

Any denial by WVDEP of a request for auxiliary aids or services shall be provided in writing and includes an explanation of the requester's the right to pursue the WVDEP's Discrimination Complaint and Grievance Procedure. Please CLICK HERE to be directed to the Procedure.  

The WVDEP Nondiscrimination Coordinator shall make continuous efforts to notify the public that WVDEP's provision of services (including through online, print, and other appropriate methods of publication) to support effective communication and other reasonable modifications for individuals with disabilities are available.  

 

Language Access for Individuals with Limited English Proficiency (LEP)

Individuals who have a limited ability to read, write, speak, or understand English are considered limited English proficient (LEP). This document seeks to provide staff at the West Virginia Department of Environmental Protection (WVDEP or the Agency) with resources and a protocol for interacting with identified LEP individuals or communities. Additionally, this document provides members of the public insight into what the WVDEP's obligations are to providing services to LEP individuals. It is the WVDEP's policy that when LEP individuals and/or communities need language assistance in order to meaningfully participate in the WVDEP's programs, activities, or services, the WVDEP shall identify opportunities for such assistance through the guidelines of this Language Access Plan (LAP or LEP Plan).

Legal Authority

The WVDEP is a recipient of financial assistance from multiple federal agencies, including U.S. EPA. As such, the WVDEP must comply with applicable federal civil rights laws and policies prohibiting discrimination, including Title VI of the Civil Rights Act of 1964 (“Title VI”) and other nondiscrimination laws. Title VI prohibits recipients from discriminating on the basis of race, color, or national origin (including limited English proficiency). The U.S. Supreme Court held in Lau v. Nichols, 414 U.S. 563 (1974), that actions taken by a federally funded program that have a disproportionate effect on LEP persons can be regarded as national origin discrimination. Thus, recipients of federal financial assistance have an obligation to reduce language barriers by ensuring that meaningful access to language services is provided to LEP persons.

Additionally, Executive Order 13166 (August 11, 2000), Improving Access to Services for Persons with Limited English Proficiency, requires federal agencies that provide federal financial assistance to develop guidance implementing their language access obligations to ensure that meaningful access is provided to LEP persons. In response, the U.S. Department of Justice (DOJ) issued guidance (DOJ Guidance) for federal agencies to carry out Executive Order 13166. 65 FR 50123 (August 16, 2000). Subsequently, the U.S. EPA issued guidance (EPA Guidance) ¹ to its funding recipients implementing Executive Order 13166.

The WVDEP Approach

In developing this LEP Plan, the WVDEP followed the recommendations provided in the EPA Guidance. The EPA Guidance addresses and incorporates the principal elements in the DOJ Guidance and focuses on activities that are common to the WVDEP, including developing rules and policies, reviewing and issuing permits, enforcing civil rights and environmental laws, and responding to inquiries from private citizens and members of the community. The EPA Guidance makes clear that recipients like the WVDEP “have considerable flexibility in determining how to comply with their Title VI legal obligations in the LEP setting.” (69 FR 35613). As such, the WVDEP has adopted the following two-step framework from the EPA Guidance:

1. Step One: Program Assessment
2. Step Two: Developing an Effective LEP Plan
   1. Identifying LEP Individuals Who Need Language Assistance
   2. Language Assistance Measures
   3. Training Staff
   4. Providing Notice to LEP Persons
   5. Monitoring and Updating the LEP Plan

The WVDEP Program Assessment

Title VI and its implementing regulations require recipients of federal financial assistance, like the WVDEP, to take reasonable steps to ensure meaningful access to WVDEP's programs, services, and activities for LEP persons. There is no prescriptive method for accomplishing this goal. Instead, Recipient agencies are encouraged to determine the extent of their Title VI LEP obligations by performing individualized assessments in accordance with the four-factor analysis described in the EPA Guidance. Subsequently, the WVDEP has performed a preliminary four factors' analysis on its programs, services, and activities to comport with the EPA Guidance.

Factor 1: The number or proportion of LEP persons eligible to be served or likely to be encountered.

The EPA Guidance indicates that determining reasonable steps for providing meaningful access depends on the number or proportion of LEP persons who would be encountered by the program, service, or activity. The greater the number or proportion of LEP persons in an area, the more likely language services are needed. The WVDEP's service area extends across the state of West Virginia. Thus, there is reason to expect that LEP persons may be encountered by the WVDEP staff when carrying out the WVDEP's programs, services, and activities. Information related to site-specific LEP needs may be assessed using information from the following sources: the WVDEP staff with experience in the community, local government, community organizations, U.S. Department of Education school-based data, Census data, EPA EJ Screen, among others. These sources may assist the WVDEP staff in identifying populations where additional language services may be needed and for which language services may be beneficial.

Factor 2: The frequency of contact with LEP individuals

The WVDEP enforces federal and state environmental laws in West Virginia to help protect air, water, and land. Accordingly, the WVDEP staff come into contact with West Virginians on a daily basis, many of whom are LEP.

The LEP obligations of a recipient, like the WVDEP, are greater when there is more frequent contact with LEP individuals as compared to less predictable or infrequent contact. The greater the frequency of LEP contact, the greater the need for the WVDEP to ensure meaningful language access to LEP individuals. In other words, the more frequent contact that the WVDEP has with a particular LEP group, the more likely that enhanced language services are needed.

The frequency of contact with LEP individuals may vary significantly across the WVDEP's programs, services, or activities and in the locations where these programs are conducted.

Factor 3: The nature and importance of the program

The EPA Guidance indicates that the need for language services is related to the importance of the nature of the WVDEP program, service, or activity in question. For example, the obligation for the WVDEP to communicate information to persons who may be adversely impacted by an immediate water source contamination or to a sudden release of airborne toxic chemicals is different from the WVDEP's obligation to provide information for a community to increase recycling efforts. With this distinction in mind, the need for LEP services across the WVDEP's programs, services, and activities could vary significantly, as actions taken by the WVDEP cover a broad spectrum of urgency and potential consequences. As this LEP Plan is implemented, the WVDEP Nondiscrimination Coordinator will obtain more relevant data to better assist staff in identifying and carrying out the WVDEP's LEP obligations.

Factor 4: The resources available

The EPA Guidance discusses the potential impact of available Agency resources in determining reasonable steps to address the Agency's LEP needs. In summary, the EPA Guidance states that agencies with larger budgets would be able to provide more language services than those with smaller budgets and that "reasonable steps" may cease to be reasonable when the costs substantially exceed the benefits. Therefore, the WVDEP shall seek out cost-effective options, such as technology-based solutions, to ensure that its LEP obligations are carried out effectively and efficiently.

Furthermore, the WVDEP shall explore language service options that are appropriate with the WVDEP's available resources, and shall work to improve collaboration with sister state agencies and programs to ensure public resources are accessible to the people of West Virginia.

Developing an Effective LEP Plan

The WVDEP anticipates that this LEP Plan will be subject to further evaluation and revision based on lessons learned from the WVDEP's implementation, as well as feedback from the public. The WVDEP's goal for this LEP Plan is to carry out its provisions, and then refine the provisions accordingly to advance its language access program. This approach is consistent with the requirements set forth in Section VIII of the EPA Guidance, where it states: “While all recipients should work toward building systems that will ensure access for LEP individuals, EPA acknowledges that the implementation of a comprehensive system to serve LEP individuals is a process and that a system will evolve over time as it is implemented and periodically reevaluated.” See 69 FR 35612.

Identifying LEP Individuals Who Need Language Assistance

The assessment under the first and second factors of the four-factor analysis provides a preliminary view of individuals who may be eligible for language assistance in West Virginia. Because the WVDEP's actions and public outreach are often community-based, the identification of LEP individuals will be dependent on the population in the specific community at issue. Building on its past experience with numerous communities across the state, the WVDEP shall take reasonable steps to enhance its awareness of LEP individuals within the potentially impacted communities and their language access needs. Achieving this may involve coordination between the WVDEP staff, the WVDEP Office of Environmental Advocate, and the WVDEP Non-Discrimination Coordinator. Some of the resources utilized by the WVDEP staff to identify LEP populations or individuals who may need language assistance include: School data (discussed in Factors 1 and 2 of the four-factor analysis above), Census and American Community Survey data, interactions with community members and community organizations, and EJ Screen Snapshots or Reports.

Language Assistance Measures

According to the EPA Guidance, the two principal methods to serving LEP individuals are oral and written language services. The first method is oral language services, which consists of interpretation by listening to something in one language and orally translating it into another language. This may include providing on-site interpreters when LEP individuals are in or expected to be in attendance at a the WVDEP-conducted or sponsored event. The second method is written language services. which consists of translation by replacing written text from one language into equivalent written text in another language. It may range from translation of an entire document to translation of a document summary.

The WVDEP offers language assistance in various ways. Written foreign language translation or oral interpretation services from appropriate WVDEP staff or certified translation/interpretation services are available to LEP individuals participating in the WVDEP's programs, services, or activities. The WVDEP also uses third-party translation and interpretation services, when appropriate. These services can be tailored to meet the LEP individual's or community's specific needs as identified above.

The WVDEP staff may be contacted directly by LEP individuals seeking assistance or by the Non-Discrimination Coordinator. This may occur through in-person contact, by phone, or by written communication. For the purpose of responding to an in-person contact, the WVDEP provides its offices and staff in the field vehicles with a supply of language assistance flashcards and materials translated into the languages of the five most commonly needed languages. This way, when WVDEP is approached by an LEP individual, the WVDEP staff has the ability to present the individual with the flashcard to identify and facilitate the LEP individual's preferred language. Once the language has been identified, the WVDEP shall attempt to provide language assistance using appropriate bilingual staff, third-party language contractor service, , and/or materials already translated by the WVDEP. If onsite language assistance does not adequately address the LEP individual's or community's needs, the WVDEP staff shall connect with the appropriate and effective third-party language assistance service provider.

Training of DEP Staff

Training will be offered to the WVDEP staff, with particular focus on staff who are likely to encounter LEP individuals. The training will include information about this LEP Plan and the related resources, policies and procedures. The WVDEP staff who routinely encounter LEP persons shall be offered refresher training and the opportunity to provide feedback on the WVDEP's LEP Plan.

Providing Notice to LEP Persons

The WVDEP seeks to be proactive and inform LEP individuals that language services are available upon request. The WVDEP shall ensure that its website contains information to the public on how to seek and access language assistance to ensure meaningful participation in the WVDEP's programs, services, or activities.

The WVDEP is also exploring options for communicating with LEP persons. These options include providing notice of available language assistance services in public announcements, media releases, and communications with community groups. The WVDEP shall also seek out the support of bilingual WVDEP staff, as well as online and third-party translation services, when appropriate. The WVDEP shall also work to ensure that online translation and transcription services are accurate by having the written translations routinely checked by a competent or certified language service provider.

Monitoring and Updating the LEP Plan

The WVDEP shall periodically review this LEP Plan to determine if its language assistance measures and staff training are still effective and relevant. The Nondiscrimination Coordinator will annually compile and review any language access-related comments/concerns raised by the public and evaluate modifications that may be needed to ensure that the language assistance measures continue to provide meaningful access to the state's residents. In accordance with the EPA guidance that acknowledges that creating systems to serve LEP individuals is an evolving process, the WVDEP commits to reviewing and updating this LEP Plan every 2 years. To evaluate the effectiveness of this LEP Plan and the need for additional measures, the WVDEP shall assess feedback from the WVDEP staff and the public, including LEP individuals. The WVDEP may also consider the availability of its own resources, and strategies to deliver language services to LEP populations in more cost effective or impactful ways.

Footnotes

1. 69 FR 35602 (June 25, 2004)

References and Federal LEP Guidance Documents