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13 vant documents should be translated and made avail- BART failed to comply with Title VI in connection with able to LEP persons before and/or at a hearing.136 the OAC Project. For example, the complaint alleged that BART failed to prepare a required service and fare I. Applicability of Title VI and the ADA to the equity analysis144 and failed to evaluate whether the American Recovery and Reinvestment Act of 2009 project would have a disproportionate impact on minor- 145 The American Recovery and Reinvestment Act of ity and low-income populations. The complaint argued 2009 (ARRA), signed into law by President Barack that BART's 2002 Final Environmental Impact Re- Obama on February 17, 2009, includes $8.4 billion for view/Environmental Impact Statement and its 2007 137 transit capital improvements. On March 5, 2009, FTA Title VI Triennial Report did not include the required published a Notice in the Federal Register to implement evaluations. It was further alleged that BART's failure the ARRA.138 The FTA's Policy Guidance and Proce- to conduct the required analyses of disproportionate ad- dures for ARRA Grants states that existing regulations verse impacts on minority and low-income populations and guidance pertaining to Title VI and the ADA, as has resulted in an even more significant failure, as it has well as the requirements of the Equal Employment Op- not taken the necessary action to "minimize, mitigate, or offset any adverse effects of proposed fare and service portunity and Disadvantaged Business Enterprise laws, changes on minority and low-income populations." Nor apply to ARRA funds.139 has BART weighed the costs and benefits of the alterna- In September 2009, three parties filed a complaint tives, and determined whether a less-discriminatory al- alleging noncompliance with Title VI when funding was ternative can provide the needed benefits at the same or being sought under the ARRA by the San Francisco Bay lesser cost. 146 Area Rapid Transit (BART) in connection with the pro- In the FTA's letter of January 15, 2010, addressing posed Oakland Airport Connector Project (OAC Pro- Title VI issues and the OAC Project, the FTA noted that 140 ject). The complainants were the Urban Habitat Pro- during a compliance review conducted after the above gram, a nonprofit, environmental justice organization complaint, "BART's staff acknowledged it failed to inte- based in Oakland, California;141 Transform, a public grate Title VI into BART's service planning and moni- 142 transit advocacy and policy organization; and Genesis, toring activities for the Project. BART also admitted a regional faith- and values-based organization in the that it did not conduct an equity evaluation of its ser- San Francisco Bay Area.143 The complaint alleged that vice changes other than the one conducted on the 2009 reduction in service headways."147 The FTA observed newspapers other than in English." Id. at 7409674097 (pt. also that "BART's non-compliance with Title VI will be VII(4)). 136 addressed through the Office of Civil Rights' compliance The DOT LEP Policy Guidance addresses the translation review process...."148 of documents: After applying the four-factor analysis, a recipi- ent may determine that an effective LEP plan for its particular Meanwhile, however, the FTA advised that BART's program or activity includes the translation of vital written "Title VI, Environmental Justice, and Limited English materials into the language of each frequently encountered Proficiency Analysis of Proposed Service and Fare LEP group eligible to be served and/or likely to be affected by Changes," dated January 14, 2010, was "insufficient to the recipient's program. DOT LEP Policy Guidance, 70 Fed. meet the [FTA] Circular's requirements on many Reg. at 74094 (Part VI(B)). fronts."149 That is, 137 111 Pub. L. No. 5, 123 Stat. 115. [T]he equity analysis fails to analyze whether the Pro- 138 "American Recovery and Reinvestment Act of 2009 Public ject's improvement and the service reductions would have Transportation Apportionments, Allocations and Grant Pro- a discriminatory impact. In addition, your analysis still gram Information," United States Department of Transporta- does not address: (1) a policy for what constitutes a "ma- tion, Federal Transit Administration, 74 Fed. Reg. 9656 (Mar. jor service change;" (2) the impacts of the major service 5, 2009). changes according to a specified procedure, including 139 FTA Policy Guidance and Procedures for ARRA Grants, route changes and span of service; (3) an analysis of what available at http://www.fta.dot.gov/civilrights/civil_rights_ alternative modes of transit are available for people af- 9903.html (Last visited on Sept. 9, 2010). 140 Urban Habitat Program v. Bay Area Rapid Transit Dist., 144 Complaint before the United States Department of Transporta- Id. at 20. 145 tion and Federal Transit Administration under Title VI of the Id. 146 Civil Rights Act of 1964 and Executive Order 12898, dated Id. at 21. Sept. 1, 2009, hereinafter cited as "OAC Title VI Complaint," 147 Letter from the FTA to the Metropolitan Transportation available at Commission and San Francisco Bay Area Rapid Transit Dis- http://issuu.com/transform/docs/fta_title_vi_complaint_09-1- trict 1 (Jan. 15, 2010), available at http://www.scribd.com/ 09_final (Last visited on Sept. 9, 2010). doc/26217928/FTA-Letter-to-MTC-and-BART-on-Oakland- 141 OAC Title VI Complaint, at 14. Airport-Connector. 142 148 Id. at 15. Id. 143 149 Id. Id. at 2.