Environmental Justice
EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules Gao ID: GAO-05-289 July 25, 2005Executive Order 12898 made achieving "environmental justice" part of the mission of the Environmental Protection Agency (EPA) and other federal agencies. According to EPA, environmental justice involves fair treatment of people of all races, cultures, and incomes. EPA developed guidance for considering environmental justice during the development of rules under the Clean Air Act and other activities. GAO was asked to examine how EPA considered environmental justice during two phases of developing clean air rules: (1) drafting the rule, including activities of the workgroup that considered regulatory options, the economic review of the rule's costs, and making the proposed rule available for public comment, and (2) finalizing the rule, including addressing public comments and revising the economic review. GAO reviewed the three clean air rules described in the next column.
When drafting the three clean air rules, EPA generally devoted little attention to environmental justice. While EPA guidance on rulemaking states that workgroups should consider environmental justice early in this process, GAO found that a lack of guidance and training for workgroup members on identifying environmental justice issues may have limited their ability to identify such issues. In addition, while EPA officials stated that economic reviews of proposed rules consider potential environmental justice impacts, the gasoline and diesel rules did not provide decision makers with environmental justice analyses, and EPA has not identified all the types of data necessary to analyze such impacts. Finally, in all three rules, EPA mentioned environmental justice when they were published in proposed form, but the discussion in the ozone implementation rule was contradictory. In finalizing the three clean air rules, EPA considered environmental justice to varying degrees. Public commenters stated that all three rules, as proposed, raised environmental justice issues. In responding to such comments on the gasoline rule, EPA published its belief that the rule would not create such issues, but did not publish the data and assumptions supporting its belief. Specifically, EPA did not publish (1) its estimate that potentially harmful air emissions would increase in 26 of the 86 counties with refineries affected by the rule or (2) its assumption that this estimate overstated the eventual increases in refinery emissions. For the diesel rule, in response to refiners' concerns that their permits could be delayed if environmental justice issues were raised by citizens, EPA stated that the permits would not be delayed by such issues. Moreover, after reviewing the comments, EPA did not change its final economic reviews to discuss the gasoline and diesel rules' potential environmental justice impacts. Finally, the portions of the ozone implementation rule that prompted the comments about environmental justice were not included in the final rule. Overall, EPA officials said that these rules, as published in final form, did not create an environmental justice issue.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-289, Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules
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Report to the Ranking Member, Subcommittee on Environment and Hazardous
Materials, Committee on Energy and Commerce, House of Representatives:
July 2005:
Environmental Justice:
EPA Should Devote More Attention to Environmental Justice When
Developing Clean Air Rules:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-289]:
GAO Highlights:
Highlights of GAO-05-289, a report to the Ranking Member, Subcommittee
on Environment and Hazardous Materials, Committee on Energy and
Commerce, House of Representatives.
Why GAO Did This Study:
Executive Order 12898 made achieving ’environmental justice“ part of
the mission of the Environmental Protection Agency (EPA) and other
federal agencies. According to EPA, environmental justice involves fair
treatment of people of all races, cultures, and incomes. EPA developed
guidance for considering environmental justice during the development
of rules under the Clean Air Act and other activities.
GAO was asked to examine how EPA considered environmental justice
during two phases of developing clean air rules: (1) drafting the rule,
including activities of the workgroup that considered regulatory
options, the economic review of the rule‘s costs, and making the
proposed rule available for public comment, and (2) finalizing the
rule, including addressing public comments and revising the economic
review. GAO reviewed the three clean air rules described in the next
column.
What GAO Found:
When drafting the three clean air rules, EPA generally devoted little
attention to environmental justice. While EPA guidance on rulemaking
states that workgroups should consider environmental justice early in
this process, GAO found that a lack of guidance and training for
workgroup members on identifying environmental justice issues may have
limited their ability to identify such issues. In addition, while EPA
officials stated that economic reviews of proposed rules consider
potential environmental justice impacts, the gasoline and diesel rules
did not provide decision makers with environmental justice analyses,
and EPA has not identified all the types of data necessary to analyze
such impacts. Finally, in all three rules, EPA mentioned environmental
justice when they were published in proposed form, but the discussion
in the ozone implementation rule was contradictory.
In finalizing the three clean air rules, EPA considered environmental
justice to varying degrees. Public commenters stated that all three
rules, as proposed, raised environmental justice issues. In responding
to such comments on the gasoline rule, EPA published its belief that
the rule would not create such issues, but did not publish the data and
assumptions supporting its belief. Specifically, EPA did not publish
(1) its estimate that potentially harmful air emissions would increase
in 26 of the 86 counties with refineries affected by the rule or (2)
its assumption that this estimate overstated the eventual increases in
refinery emissions. For the diesel rule, in response to refiners‘
concerns that their permits could be delayed if environmental justice
issues were raised by citizens, EPA stated that the permits would not
be delayed by such issues. Moreover, after reviewing the comments, EPA
did not change its final economic reviews to discuss the gasoline and
diesel rules‘ potential environmental justice impacts. Finally, the
portions of the ozone implementation rule that prompted the comments
about environmental justice were not included in the final rule.
Overall, EPA officials said that these rules, as published in final
form, did not create an environmental justice issue.
What GAO Recommends:
GAO recommends, among other things, that EPA improve workgroups‘
ability to identify environmental justice issues and enhance the
ability of its economic reviews to analyze potential environmental
justice impacts. EPA disagreed with the recommendations because it
believes it pays appropriate attention to environmental justice. GAO
believes the recommendations are still valid.
[Hypertext, http://www.gao.gov/cgi-bin/getrpt?GAO-05-289].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact John B. Stephenson at
(202) 512-3841.
Contents:
Letter:
Results in Brief:
Background:
EPA Generally Devoted Little Attention to Environmental Justice in
Drafting Three Rules:
EPA Considered Environmental Justice to Varying Degrees in Finalizing
Three Rules:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Information about the Three Final Clean Air Rules That We
Examined:
Appendix II: EPA's Consideration of Environmental Justice in the
Drafting of Three Proposed Clean Air Rules:
Workgroups Devoted Little Attention to Environmental Justice:
Little Attention Was Devoted to Environmental Justice in the Economic
Reviews:
Proposed Rules Did Not Discuss Environmental Justice:
Appendix III: Scope and Methodology:
Appendix IV: Comments from the Environmental Protection Agency:
GAO Comments:
Appendix V: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Changes in Estimated Emissions of National Air Pollutants,
1995-2004:
Table 2: EPA Guidance for Discussion of Executive Orders in Proposed
Rules:
Table 3: Estimated Potential Changes in Selected Emissions in 2007
Resulting from the Gasoline Rule in Counties with Refineries:
Table 4: Information about Three Proposed Clean Air Rules:
[End of Section]
Letter:
July 22, 2005:
The Honorable Hilda L. Solis:
Ranking Member:
Subcommittee on Environment and Hazardous Materials:
Committee on Energy and Commerce:
House of Representatives:
Dear Ms. Solis:
Low-income and minority populations are disproportionately exposed to
air pollution and other environmental risks, according to Environmental
Protection Agency (EPA) studies. For example, a 1991 study cited by EPA
found that African Americans and Hispanics were more likely to be
exposed to ground-level ozone and several other air pollutants known to
cause health problems. In 1992, EPA established an office to address
environmental pollution affecting racial minorities and low-income
communities. Efforts to identify and address disproportionately high
and adverse impacts on specific populations and communities are
commonly referred to under the term "environmental justice."
In 1994, President Clinton issued Executive Order 12898, which stated
that EPA and other federal agencies, to the greatest extent practicable
and permitted by law, shall make achieving environmental justice part
of their missions by identifying and addressing, as appropriate, the
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States. To
implement the executive order, EPA developed guidance for incorporating
environmental justice into specific program areas. One such program
area is EPA's implementation and enforcement of the Clean Air Act, a
comprehensive law intended, in part, to control emissions that have
been found to harm human health. To implement the act, EPA--among other
things--develops, implements, and enforces rules on the amount of
various pollutants that may be emitted by mobile sources (such as cars,
trucks, and other vehicles) and stationary sources (such as power
plants and refineries).
According to EPA guidance, environmental justice and other specific
factors are to be considered at various points during the development
of a rule. For example, to draft a proposed rule, EPA establishes a
workgroup, comprised of officials from relevant offices within the
agency, to consider various options and typically recommend one option
to managers. EPA guidance, issued in 1994 and 2004, reinforced
Executive Order 12898 by suggesting that environmental justice be
considered early in the rulemaking process.[Footnote 1] Also, the Clean
Air Act, other statutes, and executive orders require EPA to prepare an
economic review of the proposed rule's costs and other impacts. EPA
guidance specifies that this review will consider the rule's potential
total costs to society (which could include adverse health effects due
to exposure to pollutants), including the distribution of those costs
among various social and economic groups. Finally, after the approval
of all relevant offices within EPA, the proposed rule is published in
the Federal Register, and a public comment period is opened to solicit
formal public comment on the proposed rule. Further, the Clean Air Act
requires EPA to allow the submission of public comments, and the final
rule must be accompanied by a response to each of the significant
comments. Significant public comments that raise environmental justice
issues would be addressed along with any other significant public
comments on the proposed rule. After considering formal public comments
and sometimes changing the economic review and the rule as a result,
EPA publishes the final rule in the Federal Register and on the
Internet. After a specified time period, the rule goes into effect.
In this context, you asked us to determine how EPA considered
environmental justice in both drafting and finalizing significant clean
air rules between fiscal years 2000 and 2004. Drafting the rule
included initial reports flagging potential issues for senior
management, activities of the workgroups that considered regulatory
options, the economic review of the proposed rule's costs, and making
the proposed rule available for public comment. Finalizing the rule
included addressing public comments, revising the economic review, and
publication of the final review in the Federal Register.
To address these objectives, we analyzed EPA documents and held
discussions with EPA officials in Washington, D.C; Anne Arbor,
Michigan; and Research Triangle Park, North Carolina, relating to three
final clean air rules that were considered significant by EPA and the
Office of Management and Budget (OMB) and were finalized between
October 1, 1999, and September 30, 2004. In order to identify the rules
we would review in detail, we initially analyzed a database of clean
air rules finalized between fiscal years 2000 and 2004. We then
selected rules for review (1) that involved the EPA Administrator's
office or extensive cross-agency involvement and (2) that were sent to
OMB for review. Rules are sent to OMB for review if their expected
annual costs or benefits exceed $100 million, if they raise novel legal
or policy issues, or if they may interfere with actions undertaken by
another federal agency or a state, local, or tribal government. We
examined two mobile source rules: one rule addressed, among other
things, the sulfur content of gasoline used in cars and similar
vehicles (the gasoline rule, promulgated in 2000), and a second rule
addressed, among other things, the sulfur content of diesel fuel used
in trucks and similar vehicles (the diesel rule, promulgated in 2001).
We also examined the rule for implementing the 8-hour ozone national
ambient air quality standard (the ozone implementation rule,
promulgated in 2004). A more detailed description of these rules can be
found in appendix I. We also selected these rules because, of the 19
clean air rules finalized during this period that met our criteria,
they are the only 3 that included the terms "environmental justice" or
"Executive Order 12898" in the final rule. We believed that compared
with the other 16 rules, these 3 were more likely to include an in-
depth consideration of environmental justice by EPA. Therefore, these 3
rules are not likely to be representative of all 19 rules.
In addition, we are including information in this report on how EPA
considered environmental justice in drafting three proposed rules of
substantial congressional interest, detailed in appendix II. We did not
review how EPA considered environmental justice when finalizing these
rules because they had not been finalized when we completed our initial
fieldwork. Additional details about our scope and methodology are
provided in appendix III. We conducted our work between July 2004 and
May 2005 in accordance with generally accepted government auditing
standards.
Results in Brief:
We found that in four phases of drafting three significant clean air
rules between fiscal years 2000 and 2004, EPA generally devoted little
attention to environmental justice. First, initial reports used to flag
potential issues for senior management did not address environmental
justice. Second, although EPA guidance suggests that workgroups should
consider ways to build in environmental justice provisions early in the
rulemaking process, there is reason to question whether this occurred
for the three rules we examined. Specifically, the chairs of two
workgroups said they did not consider environmental justice, although
other workgroup members said that it was considered. Members of the
third workgroup said they did consider environmental justice, but they
could not provide us with details on how they did so. Regardless of the
extent of discussions, we identified several factors that could have
limited the workgroups' ability to identify potential environmental
justice issues. For example, workgroup members received no guidance on
how to identify potential environmental justice problems in the
drafting of a rule and received little, if any, training about
environmental justice.
Third, although EPA officials told us that for the proposed rules,
their economic reviews--which are intended to inform decision makers of
the social consequences of the rules--considered environmental justice,
we found that the reviews for the proposed gasoline and diesel rules
did not include environmental justice analyses. Moreover, EPA has not
identified all of the types of data necessary to perform such an
analysis. Finally, in publishing the proposed rules (an opportunity for
EPA to explain how it considered environmental justice), EPA mentioned
environmental justice in all three cases, but the discussion was
contradictory in one case. Specifically, the proposed ozone
implementation rule stated in one section that it would not raise any
environmental justice issues. However, in another section, the rule
specifically invited comments on an option to concentrate commercial
and residential growth, which it recognized might raise environmental
justice concerns. The proposed gasoline rule stated that environmental
justice is an important economic dimension to consider, but it did not
describe whether or how it was considered. In a section on
environmental justice, the proposed diesel rule noted that it would
improve air quality across the country and could be expected to
mitigate environmental justice concerns about diesel emissions in urban
areas.
We found that, in three phases of finalizing the three clean air rules
between fiscal years 2000 and 2004, EPA considered environmental
justice to varying degrees. First, public commenters raised concerns
about environmental justice in connection with all three rules as
proposed, and EPA generally responded to these comments, although not
always thoroughly. For example, EPA received comments that refinery
emissions would increase under the gasoline rule, and that such an
increase would create environmental justice issues. EPA responded that
an increase in refinery emissions was possible but--because of
projected reductions in vehicle emissions--overall emissions near
refineries were unlikely to increase. However, EPA did not explain the
basis for this response. Specifically, EPA did not publish its estimate
that potentially harmful emissions would increase in 26 of the 86
counties with refineries affected by the rule, nor did it publish its
assumption that this estimate overstated the eventual increases in
refinery emissions. For the diesel rule, where similar concerns were
raised that refinery emissions would increase, EPA conducted no
additional analyses. In response to refiners' concerns that their
permits could be delayed if environmental justice issues were raised by
citizens, EPA stated that it did not believe the permits would be
delayed by such issues. For the ozone implementation rule, EPA received
comments on environmental justice, but these comments did not relate to
the provisions included in the final rule. Second, after reviewing
public comments, EPA made no changes to how potential environmental
justice impacts were addressed in the final economic reviews, and thus
the final economic reviews generally did not provide decision makers
with an environmental justice analysis. Finally, in publishing the
three rules in final form, which was another opportunity for EPA to
explain how it considered environmental justice, EPA stated explicitly
that one rule would not create an environmental justice issue. However,
EPA did not explicitly state whether the other two rules would create
an environmental justice issue, although the preambles to both rules
discussed the mitigation of potential environmental justice effects.
EPA officials told us that they believed that none of the rules did
create environmental justice issues.
We recommend in this report that the EPA Administrator, among other
things, improve the workgroups' ability to identify environmental
justice concerns--for example, by providing better guidance and
training--and enhance the ability of its economic reviews to analyze
potential environmental justice impacts.
We received comments from EPA in a letter dated June 10, 2005 (see app.
IV). First, EPA expressed the view that its rules have resulted in
better air quality nationally. Second, EPA stated that in examining the
agency's process for considering environmental justice, we asked the
wrong question and that we should have focused on the outcome of the
rulemaking process--the rules themselves. Finally, EPA stated that our
evidence of how it considered environmental justice during the
development of the three final rules did not support our conclusions
and recommendations, and it provided detailed information about the
efforts it took relating to environmental justice for the three final
rules.
We question the relevance of the information provided on air quality
nationally and disagree with EPA's other two points. First, EPA's
statements that clean air rules have resulted in better air quality
nationally at some level misses the point. Executive Order 12898 calls
on agencies to identify and address the disproportionately high and
adverse effects of its programs, policies, and activities on specific
groups. For example, such groups could include those who live near
refineries and may be exposed to increased emissions as a result of the
two mobile source rules, but EPA provided no information on such
groups. Second, EPA suggested that it would have been more appropriate
for us to look at the outcomes of its efforts than at the process that
produced the outcomes. We agree with EPA that outcomes are important,
but it is not yet clear whether the rules we examined will address
environmental justice issues effectively because the rules are being
implemented over the next several years. It is also important to
examine the process that led to the rules--as we did. The various
process steps are intended to help ensure that EPA's activities during
the many phases of drafting and finalizing all rules are efficiently
and effectively focused on achieving the desired outcomes.
Third, although EPA stated that our evidence did not support our
conclusions and recommendations, it did not challenge the accuracy of
the information we provided on how it considered environmental justice
during the many phases of developing the three final rules discussed in
the body of our report and the three proposed rules discussed in
appendix II. While EPA provided detailed information on certain
activities and the rationale for undertaking them, our report already
discussed nearly all of these activities. For example, EPA noted at
length its efforts, after drafting the gasoline rule, to hold
discussions with environmental justice and other groups on issues
relating to permits that refiners would need if they increased their
emissions to comply with the rule. We already acknowledged these
efforts in our report. However, EPA's efforts at this stage do not
mitigate the fact that it devoted little attention to environmental
justice up to that point, or the fact that discussions with affected
groups while beneficial, do not offset the effects of possible
increases in refinery emissions on these groups. EPA is essentially
relying on state and local governments to deal with environmental
justice concerns as they implement the gasoline and diesel rules at the
refinery level, even though the executive order does not apply to state
or local governments, and absent specific state or local law, they have
no obligation to consider environmental justice when issuing permits.
In addition, the three final rules were selected in part because they
mentioned environmental justice and therefore should have showcased
EPA's efforts to consider environmental justice. Thus, we continue to
believe that the evidence we provided supports our conclusions and
recommendations.
Background:
Even before Executive Order 12898 was issued in 1994, EPA took steps to
address environmental justice. For example, in 1992, it established the
Office of Environmental Equity, which is now known as the Office of
Environmental Justice, to focus on environmental pollution affecting
racial minorities and low-income communities, but this office has no
specific role in rulemaking. In 1993, EPA created the National
Environmental Justice Advisory Committee to provide independent advice
and recommendations to the Administrator on environmental justice
matters.
The 1994 executive order stated that EPA and other federal agencies, to
the extent practicable and permitted by law, shall make achieving
environmental justice part of their missions by identifying and
addressing, as appropriate, the disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The executive order does not create a right to sue the
government or seek any judicial remedy for an agency's failure to
comply with the order.
After the issuance of the executive order, EPA took additional steps to
identify and address environmental justice. Among other things, in
1994, the Administrator issued guidance for the rulemaking process
suggesting that environmental justice be considered early in the
rulemaking process. In 1995, EPA issued an Environmental Justice
Strategy that included, among other things, (1) ensuring that
environmental justice is incorporated into the agency's regulatory
process, (2) continuing to develop human exposure data through model
development, and (3) enhancing public participation in agency decision
making. In 2001, the Administrator issued a memorandum defining
environmental justice more broadly to mean "the fair treatment of
people of all races, cultures, and incomes, with respect to the
development, implementation, and enforcement of environmental laws and
policies, and their meaningful involvement in the decision making
processes of the government." In 2004, EPA developed new guidance for
rulemaking that, like its earlier 1994 guidance, suggested that
environmental justice be considered early in the rulemaking process.
Under the Clean Air Act, EPA, along with state and local government
units and other entities, regulates air emissions of various substances
that harm human health. According to EPA data, from 1995 though 2004,
emissions of certain air pollutants have declined from 15 percent to as
much 31 percent, as shown in table 1.
Table 1: Changes in Estimated Emissions of National Air Pollutants,
1995-2004:
Type of air pollutant emission: Carbon monoxide;
Air emission amount (millions of tons per year): 1995: 120.0;
Air emission amount (millions of tons per year): 2004[A]: 87.2;
Percentage change: (27%).
Type of air pollutant emission: Nitrogen oxides;
Air emission amount (millions of tons per year): 1995: 24.7;
Air emission amount (millions of tons per year): 2004[A]: 18.8;
Percentage change: (24%).
Type of air pollutant emission: Sulfur dioxide;
Air emission amount (millions of tons per year): 1995: 18.6;
Air emission amount (millions of tons per year): 2004[A]: 15.2;
Percentage change: (18%).
Type of air pollutant emission: Particulate matter[B];
Air emission amount (millions of tons per year): 1995: 3.1;
Air emission amount (millions of tons per year): 2004[A]: 2.5;
Percentage change: (19%).
Type of air pollutant emission: Volatile organic compounds;
Air emission amount (millions of tons per year): 1995: 21.6;
Air emission amount (millions of tons per year): 2004[A]: 15.0;
Percentage change: (31%).
Type of air pollutant emission: Lead;
Air emission amount (millions of tons per year): 1995: 0.0039;
Air emission amount (millions of tons per year): 2004[A]: 0.0033;
Percentage change: (15%).
Source: GAO analysis of EPA data.
[A] Data for 2004 are preliminary.
[B] Particulate matter measuring 10 microns or less.
[End of table]
In addition, EPA sets primary national ambient air quality standards
for six principal pollutants that harm human health and the
environment. These standards are to be set at a level that protects
human health with an adequate margin of safety, which, according to
EPA, includes protecting sensitive populations, such as the elderly and
people with respiratory or circulatory problems. These six pollutants
include the five types of emissions listed in table 1, along with
ozone, which is not emitted directly but is formed when nitrogen oxides
and volatile organic compounds react in the presence of sunlight.
According to EPA, in 2003, about 161 million people (about 56 percent
of the population) lived in areas where the concentration of ozone met
the standard; about 120 million people (41 percent) lived in areas
where the concentration of particulate matter met EPA's standard; and
about 168 million people (58 percent) lived in areas where the
concentrations of the other four pollutants met the standards.
EPA has a multistage process for developing clean air and other rules
that it considers high priority (the top two of three priority levels)
because of the expected involvement of the Administrator, among other
factors. Initially, a workgroup chair is chosen from the lead program
office, such as the Office of Air and Radiation (Air Office) in the
case of clean air rulemaking. The workgroup chair assigns the rule one
of the three priority levels, and EPA's top management makes a final
determination of the rule's priority. The priority level assigned
depends on such factors as the level of the Administrator's involvement
and whether more than one office in the agency is involved. The
gasoline, diesel, and ozone implementation rules were classified as
high-priority rules on the basis of these factors. In addition, these
rules were considered significant because they had an effect of $100
million or more a year on the economy, or they raised novel legal or
policy issues and, therefore, were required under Executive Order 12866
to be sent to OMB.[Footnote 2] Among other things, an OMB review is
conducted to ensure that the rule is consistent with federal laws and
the President's priorities, including executive orders.
EPA guidance identifies environmental justice as one of many factors to
be considered early in the rulemaking process. In 1994, the EPA
Administrator established guidance for rulemaking and identified 11
characteristics for "quality actions" in rulemaking. Among these
characteristics were (1) consistency with legal requirements and
national policies, which would include Executive Order 12898, and (2)
adherence to the Administrator's seven priorities, which included
environmental justice. According to the guidance, managers must
consider all 11 areas early on and be explicit about any trade-offs
made among them.
For high-priority rules, the workgroup chair is responsible for, among
other things, ensuring that work gets done and the process is
documented. Other workgroup members are assigned from the lead program
office and, in the case of the two highest priority rules, from other
offices. The workgroup may conduct such activities as (1) collaborating
to prepare a plan for developing the rule, (2) seeking early input from
senior management, (3) consulting with stakeholders, (4) collecting
data and analyzing issues, (5) considering various options, and (6)
recommending usually one option to managers. In addition, an economist
(who typically participates in the workgroup) prepares an economic
review of the proposed rule's costs to society. According to EPA, the
"ultimate purpose" of an economic review is to inform decision makers
of the social welfare consequences of the rule. Finally, after the
approval of all relevant offices within EPA, the proposed rule is
published in the Federal Register, the public is invited to comment on
it, and EPA considers the comments. Comments may address any aspect of
the proposed rule, including whether environmental justice issues are
raised and appropriately addressed in the proposed rule. Sometimes,
prior to the publication of the proposed rule, EPA publishes an
Advanced Notice of Proposed Rulemaking in the Federal Register. The
notice provides an opportunity for interested stakeholders to provide
input to EPA early in the process, and the agency takes such comments
into account to an appropriate extent, according to EPA.
In finalizing a rule, EPA is required to provide a response to all
significant public comments, including those on environmental justice,
and to prepare a final economic review. After these tasks are
completed, the rule, if it is significant, is sent to OMB for approval.
Once OMB approves the final rule and the Administrator signs it, it is
published in the Federal Register. After a specified time period, the
rule goes into effect.
Within EPA, the Air Office is primarily responsible for implementing
the Clean Air Act, as amended. Within that office, the Office of Air
Quality Planning and Standards is primarily responsible for developing
the majority of new rules for stationary sources resulting from the
act. Also within the Air Office, the Office of Transportation and Air
Quality has primary responsibility for developing rules and other
programs to control mobile source emissions. The Office of
Environmental Justice, located within EPA's Office of Enforcement and
Compliance Assurance, provides a central point for the agency to
address environmental and human health concerns in minority communities
and/or low-income communities--a segment of the population that has
been disproportionately exposed to environmental harms and risks,
according to the office's Web site. The office works with EPA's program
and regional offices to ensure that the agency considers environmental
justice.
EPA Generally Devoted Little Attention to Environmental Justice in
Drafting Three Rules:
Although EPA guidance calls for environmental justice to be considered
early in the rulemaking process, we found that EPA generally devoted
little attention to environmental justice during the drafting of the
three rules as proposed. First, environmental justice was not mentioned
in an initial form used to flag potential issues for senior management.
Second, it is unclear how much the workgroups discussed environmental
justice because EPA officials had differing recollections on the
matter. Even when the workgroups did discuss environmental justice,
their ability to identify potential problems may have been limited by a
lack of training and guidance, among other factors. Third, the economic
reviews of two of the three proposed rules did not discuss
environmental justice. Finally, when the proposed rules were published
in the Federal Register and made available for public comment, all
three mentioned environmental justice, but the discussion was
contradictory in one case.
Initial Form Prepared for Senior Management Did Not Address
Environmental Justice:
Although EPA guidance suggested that environmental justice was one of
the factors that should be considered early in rulemaking, it did not
include information on environmental justice in a key form prepared for
management at the beginning of the process. After being designated, the
workgroup chair is to complete a "tiering form" to help establish the
level of senior management involvement needed in drafting the rule. For
example, the highest priority rules would involve the Administrator and
more than one office in the agency. The forms for the gasoline, diesel,
and ozone implementation rules stated that these rules were of the
highest priority. In addition, the form asks a series of questions, the
answers to which are to be used to alert senior managers to potential
issues related to compliance with statutes, executive orders, and other
matters. This form specifically asks about, among other things, the
rules' potential to pose disproportionate environmental health risks to
children and to have potential Endangered Species Act implications.
However, the form does not include a question regarding the rules'
potential to create environmental justice concerns. Moreover, on the
forms that were completed for the three rules we reviewed, we found no
mention of environmental justice.
Lack of Guidance and Training May Have Limited Workgroups' Ability to
Identify Potential Environmental Justice Concerns:
EPA officials had differing recollections about the extent to which the
three workgroups considered environmental justice. The chairs of the
workgroups for the two mobile source rules told us that they did not
recall any specific time when they considered environmental justice
during the rules' drafting, but other EPA officials said environmental
justice was considered. The chair of the ozone workgroup told us that
his group did consider environmental justice, but that he could not
provide any specifics about this.
Because 3 to 7 years have passed since these workgroups were formed and
the workgroup members may not have remembered discussions of
environmental justice during the rules' drafting, we asked them to
provide us with any documentation that may have indicated that
environmental justice was considered. Members of the two mobile source
workgroups told us that they did not have any such documents. The chair
of the ozone workgroup provided us with a copy of a document, prepared
by the workgroup, which identified issues needing analysis.[Footnote 3]
The document stated that information would be developed for an economic
review related to the proposed rule, and that such information would be
used in part to support compliance with executive orders, including one
related to low-income and minority populations.
Even when the workgroups stated that they had considered environmental
justice, we identified three factors that may have limited their
ability to identify potential environmental justice concerns. First,
all three workgroup chairs told us that they received no guidance in
how to analyze environmental justice concerns in rulemaking. Second,
workgroup members had received little, if any, training on
environmental justice. Specifically, all three workgroup chairs told us
they received no training in environmental justice. Two chairs did not
know whether other members of the workgroups had received any training,
and a third chair said at least one member had. Some EPA officials
involved in developing these three rules told us that it would have
been useful to have a better understanding of the definition of
environmental justice and how to consider environmental justice issues
in rulemaking. Finally, the Air Office's environmental justice
coordinators, whose full-time responsibility is promoting environmental
justice, were not involved in drafting any of the three rules. Neither
of the two coordinators we spoke with (the overall coordinator for the
Air Office and the coordinator for the unit within the Air Office that
prepared the rules) could recall being involved in drafting any of the
three rules. Further, the Air Office's environmental justice
coordinators said they rarely served as part of a workgroup for air
rulemaking or received questions from a workgroup during the
development of any rule under the Clean Air Act.
Economic Reviews Did Not Always Provide Decision Makers with an
Environmental Justice Analysis:
EPA is required under the Clean Air Act, other statutes, and executive
orders to prepare an economic review for proposed rules, and the type
of economic review to be prepared depends on the rule's impact on the
economy. Specifically, rules that are expected to have an effect of
$100 million or more a year--like the two mobile source rules--require
a more detailed "economic analysis." Other rules--like the ozone
implementation rule--still must conduct a less detailed "economic
impact assessment." According to EPA, the "ultimate purpose" of these
reviews is to inform decision makers of the social consequences of the
rules. According to EPA guidance, both types of review are to discuss
the rule's cost and the distribution of those costs across society.
According to EPA officials, both types of review consider environmental
justice. The more detailed reviews, or economic analyses, also are to
discuss the rule's benefits and equity effects, which include
environmental justice.
For all three rules, an economic review of their economic costs and
certain other features was prepared for decision makers before the
proposed rules were published. However, the economic analyses of the
two mobile source rules did not include an analysis of environmental
justice. The supervisor of the economists who prepared the analyses
said that environmental justice was not discussed in the analyses due
to an oversight. However, he also said (and a senior policy advisor in
the Air Office concurred) that EPA has not agreed upon the complete
list of data that would be needed to perform an environmental justice
analysis. Further, he said that EPA does not have a model with the
ability to distinguish localized adverse impacts for a specific
community or population.
Although the economic impact assessment of the ozone implementation
rule did discuss environmental justice, it inconsistently portrayed
some information relevant to the rule's potential environmental justice
impacts. Specifically, the assessment stated that EPA determined the
rule would not create environmental justice issues, based on its
analysis of the 1997 rule that established the 8-hour ozone national
ambient air quality standard. However, the earlier rule referred to its
economic review, which stated it was not possible to rigorously
consider the potential environmental justice effects of the rule
because the states were responsible for its implementation. The
inability of EPA to rigorously consider environmental justice in the
1997 rule does not seem to support EPA's statement that there were no
environmental justice issues raised by the ozone implementation rule.
Also, the economic impact assessment did not address the potential
environmental justice effects of a certain provision, which EPA stated
2 months later, in the proposed rule, might raise environmental justice
issues. The provision would attempt to reduce vehicle use generally
throughout a large metropolitan area by encouraging mixed-use growth--
a combination of industrial, retail, and residential development--in
portions of that metropolitan area, so transportation would be
concentrated there. According to EPA, concentrating vehicle emissions
and stationary emissions might create environmental justice concerns
for low-income residents.
All Three Proposed Rules Mentioned Environmental Justice, but the
Discussion Appeared Contradictory in One Case:
According to EPA's director of regulatory management, the agency did
not have any guidance on whether environmental justice should be
included in the preamble of a rule at the time the gasoline and diesel
rules were developed. By the time the ozone implementation rule was
proposed, EPA had developed guidance, which is still in place today.
While this guidance indicates that environmental justice and seven
other executive orders should be considered when a new rule is
developed, it does not state that officials must include a discussion
of environmental justice in the proposed rule. Specifically, the
guidance provides that five orders should be discussed in all rules,
and that three other orders--including the order relating to
environmental justice--may be discussed if necessary and appropriate.
(Table 2 contains a list of these executive orders.) EPA officials told
us that a discussion of environmental justice was made optional under
the guidance because it is infrequently identified by EPA as an issue.
Table 2: EPA Guidance for Discussion of Executive Orders in Proposed
Rules:
Guidance: Executive orders that should be discussed;
Executive order: Number: E.O. 12866;
Executive order: Title: Regulatory Planning and Review.
Guidance: Executive orders that should be discussed;
Executive order: Number: E.O. 13045;
Executive order: Title: Protection of Children from Environmental
Health and Safety Risks.
Guidance: Executive orders that should be discussed;
Executive order: Number: E.O. 13175;
Executive order: Title: Consultation and Coordination with Indian
Tribal Governments.
Guidance: Executive orders that should be discussed;
Executive order: Number: E.O. 13211;
Executive order: Title: Actions That Affect Energy Supply,
Distribution, or Use.
Guidance: Executive orders that should be discussed;
Executive order: Number: E.O. 13132;
Executive order: Title: Federalism.
Guidance: Executive orders that may be discussed;
Executive order: Number: E.O. 12630;
Executive order: Title: Governmental Actions and Interference with
Constitutionally Protected Property Rights (Takings).
Guidance: Executive orders that may be discussed;
Executive order: Number: E.O. 12898;
Executive order: Title: Environmental Justice.
Guidance: Executive orders that may be discussed;
Executive order: Number: E.O. 12988;
Executive order: Title: Civil Justice Reform.
Source: EPA.
[End of table]
The publication of a proposed rule gives EPA an opportunity to explain
how it considered environmental justice in the rule's development.
Although all three rules mentioned environmental justice when they were
published in the Federal Register, they differed in the extent to which
they discussed this issue and, in one case, the discussion appeared
contradictory. In the proposed gasoline rule, EPA stated that
environmental justice is an important economic dimension to consider,
but it did not describe whether it was considered or whether the
proposed rule raised any environmental justice issues. In the proposed
diesel rule, in a section on environmental justice, EPA stated that the
rule would improve air quality across the country and could be expected
to mitigate environmental justice concerns about concentrations of
diesel emissions. More particularly, EPA stated that health benefits
could be expected for populations near bus terminals and commercial
distribution centers, where diesel truck traffic would be concentrated,
because pollutants in diesel emissions would be reduced. The treatment
of environmental justice in the proposed ozone implementation rule was
unclear because two sections of the rule appeared to contradict each
other. In one section, EPA stated that it did not believe the rule
would raise any environmental justice issues, but in another section,
it specifically invited comments on an option to concentrate
commercial, industrial, and residential growth, which it said "may
raise environmental justice concerns."[Footnote 4]
EPA Considered Environmental Justice to Varying Degrees in Finalizing
Three Rules:
In all three cases, EPA received and generally responded to public
comments on environmental justice, although in one case it did not
explain the basis for its response. In addition, in all three cases, it
completed a final economic review, but these reviews generally did not
provide decision makers with an environmental justice analysis. EPA
published all three final rules, and EPA officials told us that they
believed that these rules did not create an environmental justice issue.
EPA Generally Responded to Public Comments Pertaining to Environmental
Justice:
In Clean Air Act rulemaking, EPA is required to allow the submission of
public comments, and the final rule must be accompanied by a response
to each significant comment. These comments are generally submitted
during the official public comment period after a rule is proposed, but
they may be submitted while EPA is drafting a proposed rule. The act
also requires EPA to place written comments in a public
docket.[Footnote 5] In addition, according to EPA's public involvement
policy, agency officials should explain, in their response to comments,
how they considered the comments, including any change in the rule or
the reason the agency did not make any changes.[Footnote 6]
The Gasoline Rule:
Commenters from the petroleum industry, environmental groups, and
elsewhere stated that the proposed gasoline rule raised environmental
justice concerns. For example, one commenter representing environmental
justice groups stated that the proposed rule was "completely devoid of
environmental justice analysis," and that the national benefits of the
rule were derived from transferring broadly distributed emissions into
areas around refineries. Also, a representative of a petroleum company
stated that EPA needed to address environmental justice issues. EPA
responded by taking two actions. It (1) analyzed the rule's potential
impact on communities around refineries and (2) sought stakeholders'
views on environmental justice and other issues relating to refinery
emissions.
First, EPA estimated how two types of refinery and vehicle emissions
would change, as a result of the rule, in 86 U.S. counties[Footnote 7]
that contained a refinery. The two types of emissions--nitrogen oxides
and volatile organic compounds--contribute to the formation of ground-
level ozone, which is regulated under the Clean Air Act because it is
harmful to human health. EPA estimated that the increase in refinery
emissions could be greater than the decrease in vehicle emissions,
resulting in a net increase in emissions of one or both substances, in
26 counties (about 30 percent of the total), as shown in table 3.
Specifically, it estimated that emissions of both substances could
increase in 10 counties, with a population of about 13 million people,
and that emissions of only one substance would increase in another 16
counties. On the other hand, EPA estimated that emissions of both
substances could decrease in 60 counties. For example, EPA estimated
that in Plaquemines Parish, Louisiana, net emissions of nitrogen oxides
could increase 298 tons as a result of the rule, reflecting an increase
in refinery emissions of 356 tons and a decrease in vehicle emissions
of 58 tons. Conversely, it estimated that in Calcasieu Parish,
emissions of volatile organic compounds could decrease by 61 tons,
reflecting an increase in refinery emissions of 84 tons and a decrease
in vehicle emissions of 145 tons.
Table 3: Estimated Potential Changes in Selected Emissions in 2007
Resulting from the Gasoline Rule in Counties with Refineries:
Estimated potential changes: Increased emissions of one or both
emissions: Estimated potential changes: Increased emissions of both
emissions;
Number of counties: 10.
Estimated potential changes: Increased emissions of one or both
emissions: Estimated potential changes: Increased emissions of only one
emission;
Number of counties: 16.
Estimated potential changes: Subtotal;
Number of counties: 26.
Estimated potential changes: Decreased emissions of both emissions;
Number of counties: 60.
Estimated potential changes: Total;
Number of counties: 86.
Source: GAO analysis of EPA data.
[End of table]
The results of EPA's analysis appear to support those commenters who
asserted that the rule might create environmental justice issues in
some localities. They also appear to conflict with EPA's statements, in
its summary of and response to comments document, that "it would be
unacceptable to trade the health of refining communities in exchange
for generalized air pollution benefits. However we do not believe the
Tier 2/gasoline sulfur control rule will cause such an exchange." EPA
also stated that, for the "vast majority" of areas near refineries, the
benefits of reduced emissions from vehicles would "far outweigh" any
increase in refinery emissions.[Footnote 8]
When asked whether this analysis appeared to confirm concerns about the
rule's potential environmental justice impacts, EPA officials told us
that the analysis was limited and overstated the net increase in
refinery emissions in two ways. First, according to EPA officials, the
analysis did not consider the actions that refiners would likely take
to offset increases in emissions because of the new rule; EPA assumed
that they would seek to reduce emissions in other ways to avoid
additional regulation at the state level. EPA said it believed these
actions would limit the expected increases in refining emissions.
Second, EPA analyzed the effect of the rule only for 2007. EPA
officials said they believed that the benefits of the rule would
increase after that year, as new (and cleaner) vehicles increasingly
replaced older (and less clean) vehicles.
We note two other ways in which the analysis was limited in estimating
the potential effects on communities near refineries. First, EPA did
not ask refiners about the rule's impact on their output of these two
emissions, nor did EPA perform an analysis to determine how the rule
would impact individual refiners' emissions of these two substances.
Instead, EPA assumed that emissions would increase by the same
proportion at each refinery--nitrogen oxides, by 4.5 percent, and
volatile organic compounds, by 3.32 percent--although individual
refineries increases could be lesser or greater than these percentages.
Secondly, EPA did not estimate the rules' impact on other pollutants,
such as particulate matter and sulfur dioxide, which might also
increase as a result of the increase in refining activity needed to
comply with the rule.
EPA did not make the results of its analysis available to the public,
either in the economic review of the final rule or elsewhere in the
docket, because EPA officials told us they considered the results of
the analysis too uncertain to release to the public. However, EPA
officials told us that the analysis--along with their assumption that
refineries were likely to emit less emissions than the analysis
indicated--supported their belief that the rule would be unlikely to
cause environmental justice impacts. In addition, these officials said
they believed that, if the rule did create environmental justice
issues, they could be best addressed by the state or local governments.
This is because any refiners needing to increase their emissions to
comply with the gasoline rule would have to submit specific plans to
such governments during the permitting process.
Second, EPA believed that environmental justice issues would be best
addressed during the permitting process, and EPA hired a contractor to
solicit stakeholders' potential concerns about this issue. In September
1999, the contractor interviewed individuals from EPA, environmental
organizations, the oil refining industry, and state agencies
responsible for regulating refinery emissions to ascertain their views.
In December 1999, the contractor again sought stakeholders' views,
focusing largely on local environmental groups, because few of them
were interviewed in September. In December, local environmental groups
stated that they did not trust the state environmental agencies, and
that they perceived that EPA had "talked exclusively with industry
representatives prior to developing the proposed rule, but not to the
local environmental organizations." In addition, these groups said that
they did not want "any added emissions to their air, even if there will
be a net benefit to the nation's environment."
In response to the stakeholders' concerns, the contractor recommended
that EPA develop permitting teams, provide information about the rule,
and enhance community involvement. The contractor said that these
recommendations would improve the permitting process for all
stakeholders by addressing issues specific to each permit, potentially
including environmental justice. EPA said that it would implement the
contractor's recommendations for improving the permitting process to
deal with environmental justice issues.
EPA stated that it believed that environmental justice issues could be
dealt with during the permitting process at the state or local level,
and officials told us that EPA has limited direct authority over
permitting because most permitting occurs at the state level. Several
groups commented that the states, not EPA, "act as the permitting
authorities" over refineries. EPA said it agreed that states generally
have primary authority over permitting. Further, Executive Order 12898
does not apply to state or local permitting authorities, and absent
specific state or local law, state and local governments have no
obligation to consider environmental justice when issuing permits.
The Diesel Rule:
In response to an Advanced Notice of Proposed Rulemaking, several
commenters expressed concern that the diesel rule would lead to
increased refinery emissions of regulated pollutants. They specifically
stated that EPA should address the potential for increased emissions in
its economic analysis of the rule. EPA did not respond to these
comments[Footnote 9] and did not factor the potential increase in
regulated pollutants into its final economic analysis. In commenting on
the proposed rule, several petroleum companies stated that changes they
would need to make to comply with the rule might increase emissions
and, therefore, lead citizens to raise environmental justice issues.
EPA responded that it did not believe that complaints would delay the
refineries' permitting applications. However, EPA did not analyze the
rule for environmental justice impacts, such as increases in air
emissions in communities surrounding refineries. EPA officials told us
that they did not perform such an analysis because they believed that
they had sufficiently analyzed these issues in the context of the
gasoline rule.
The Ozone Implementation Rule:
In the proposed rule on implementing the ozone standard, EPA asked for
public comments on potential environmental justice issues stemming from
a specific provision that would have encouraged concentrated growth in
urban areas to reduce the number of commuter vehicles contributing to
ozone emissions. Seven public commenters stated that the provision
could have potential environmental justice impacts. However, these
comments on environmental justice did not relate to the provisions of
the ozone implementation rule that have, thus far, been finalized, and
therefore it was not necessary for EPA to respond to these comments.
According to an EPA official, EPA is still considering the provision,
and the public comments on it, for a second phase of the rule
implementing a new ground-level ozone standard that EPA intends to
finalize this year.
Final Economic Reviews Generally Did Not Provide Decision Makers with
an Environmental Justice Analysis:
After taking into consideration public comments, the agency prepares a
final economic review. EPA guidance indicates that this final economic
review, like the proposed economic review, should identify the
distribution of the rule's social costs across society. After
considering public comments, EPA did prepare a final economic review
for all three rules, but, for two of the three rules, environmental
justice was not discussed.
Even after the public expressed concerns about environmental justice,
the final economic analysis of the gasoline rule, like the analysis of
the proposed rule, did not discuss environmental justice. According to
the supervisory economist, not discussing environmental justice in the
final analysis was an oversight.
Similarly, the final economic analysis of the diesel rule, like the
analysis of the proposed rule, did not discuss environmental justice.
Again, according to the supervisory economist, not discussing
environmental justice in the final analysis was an oversight. As a
result, EPA did not incorporate the public's suggestions that EPA
include the cost of increased refinery emissions in its economic
analysis.
For the ozone implementation rule, EPA did not prepare a new economic
impact assessment for its final version. Instead, it issued an addendum
to the proposed assessment and stated that it considered the addendum
and the proposed assessment to constitute a final economic impact
assessment. In addition, because EPA decided to finalize the ozone
implementation rule in two phases, the addendum addressed only the part
of the rule that was finalized, not the entire proposed rule. Thus, the
assessment of the final rule did not change the conclusion of the
assessment of the proposed rule, namely that the ozone implementation
rule did not create any environmental justice issues.
EPA Officials Believed That the Three Final Rules Did Not Create
Environmental Justice Issues:
The publication of a final rule gives EPA another opportunity to
explain how it considered environmental justice in the rule's
development. For all three rules, EPA discussed environmental
justice.[Footnote 10] The preamble to one rule stated explicitly that
it would not create an environmental justice issue.[Footnote 11] The
other two rules did not explicitly state whether they would create an
environmental justice issue, although the preambles to both rules
discussed the mitigation of potential environmental justice effects.
EPA officials told us that they believed that these rules did not
create an environmental justice issue.
In the preamble to the final ozone implementation rule, as in the
proposed rule, EPA stated that the rule did not raise any environmental
justice issues. The agency supported its statement by explaining that
the rule was implementing a standard, developed in 1997, that had
already taken environmental justice into account.
In the preamble to the final gasoline rule in 2000, EPA stated that
areas around the refineries would receive an environmental benefit from
the rule, and that emissions at some refineries might increase even
after installing equipment to comply with emissions controls in the
Clean Air Act. It concluded that the increases in refinery emissions
would be very small in proportion to the decreases in vehicle emissions
in the areas around refineries. Moreover, EPA discussed its previous
actions to consider environmental justice concerns, as previously
discussed, and stated that it was committed to resolve environmental
justice issues if they arose, through additional outreach efforts to
local communities and similar means. Although the final rule did not
state explicitly whether it would or would not ultimately create an
environmental justice issue, EPA officials told us in late 2004 that,
in their opinion, the rule did not create such an issue.
Lastly, in the preamble to the final diesel rule in 2001, EPA stated
that the rule could mitigate some of the environmental justice concerns
pertaining to the heavy-duty diesel engines that often power city
buses. The final rule does not discuss any potential environmental
justice issues pertaining to impacts from increased refinery emissions
on nearby communities, even though EPA officials told us that they
recognized increased refinery emissions could have such impacts.
Nevertheless, EPA officials told us in late 2004 that they believed the
rule did not create environmental justice issues.
Conclusions:
We found some evidence that EPA officials considered environmental
justice when drafting or finalizing the three clean air rules we
examined. During the drafting of the three rules, even when the
workgroups discussed environmental justice, their capability to
identify potential concerns may have been limited by a lack of
guidance, training, and involvement of EPA's environmental justice
coordinators. It is important that EPA thoroughly consider
environmental justice because the states and other entities, which
generally have the primary permitting authority, are not subject to
Executive Order 12898.
EPA's capability to identify environmental justice concerns through
economic reviews also appears to be limited. More than 10 years have
elapsed since the executive order directed federal agencies, to the
extent practicable and permitted by law, to identify and address the
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities. However, EPA
apparently does not have sufficient data and modeling techniques to be
able to distinguish localized adverse impacts for a specific community.
For example, EPA has not agreed upon the complete list of data that
would be needed to perform an environmental justice analysis. This
suggests that, although EPA has developed general guidance for
considering environmental justice, it has not established specific
modeling techniques for assessing the potential environmental justice
implications of any clean air rules. In addition, by not including a
discussion of environmental justice in all of the economic reviews, EPA
decision makers may not have been fully informed about the
environmental justice impacts of all the rules.
Finally, even though members of the public commented about two rules'
potential to increase refinery emissions--potential environmental
justice issues, (1) in one case, EPA did not provide a response and (2)
in the other case, it did not explain the basis for its response, such
as the rationale for its beliefs and the data on which it based its
beliefs. While these may not have been significant comments requiring a
response, EPA's public involvement policy calls for EPA to provide
responses when feasible, and this policy does not appear to distinguish
comments on Advanced Notices of Proposed Rulemaking from comments on
proposed rules.
Recommendations for Executive Action:
In order to ensure that environmental justice issues are adequately
identified and considered when clean air rules are being drafted and
finalized, we recommend that the EPA Administrator take the following
four actions:
* ensure that the workgroups devote attention to environmental justice
while drafting and finalizing clean air rules;
* enhance the workgroups' ability to identify potential environmental
justice issues through such steps as (1) providing workgroup members
with guidance and training to help them identify potential
environmental justice problems and (2) involving environmental justice
coordinators in the workgroups when appropriate;
* improve assessments of potential environmental justice impacts in
economic reviews by identifying the data and developing the modeling
techniques that are needed to assess such impacts; and:
* direct cognizant officials to respond fully, when feasible, to public
comments on environmental justice, for example, by better explaining
the rationale for EPA's beliefs and by providing its supporting data.
Agency Comments and Our Evaluation:
EPA's Assistant Administrator for Air and Radiation provided comments
on a draft of this report in a letter dated June 10, 2005 (see app.
IV). In addition, he provided technical comments that we incorporated
where appropriate.
First, EPA expressed the view that its rules have resulted in better
air quality nationally. EPA said it was "disappointed" that we did not
accurately reflect its progress in achieving environmental justice with
respect to air pollution. It noted that the three rules are part of a
larger program that is making significant progress in providing cleaner
air nationwide. Second, EPA stated that in examining the agency's
process for considering environmental justice, we asked the wrong
question, and that we should have focused on the outcome of the
rulemaking process--the rules themselves. Finally, it stated that our
evidence of how it considered environmental justice during the
development of the three final rules did not support our conclusions
and recommendations, and it provided detailed information about the
efforts it took relating to environmental justice for the three final
rules.
We question the relevance of the information provided on air quality
nationally and disagree with EPA's other two points. First, in addition
to the data we had already presented on the decrease in emissions of
certain air pollutants, EPA provided data on overall improvements in
air quality, specifically the decrease in the number of areas
throughout the nation that did not meet certain ambient air quality
standards. However, because these data provide no detail on the
conditions facing specific groups--for example, residents of areas near
refineries, who might be negatively affected by the two mobile source
rules--these data are not necessarily germane to environmental justice.
Although Executive Order 12898 calls on agencies to identify and
address the disproportionately high and adverse effects of its
programs, policies, and activities on specific groups, EPA provided no
information about such groups. Also, we believe that EPA's statement
about the effect of clean air rules on national air quality at some
level misses the point. Second, EPA suggested that it would have been
more appropriate for us to look at the outcomes of its efforts than at
the process that produced the outcomes. We agree with EPA that outcomes
are important, but it is not yet clear whether the rules we examined
will address environmental justice issues effectively because the rules
are being implemented over the next several years. It is also important
to examine the process that led to the rules--as we did. The various
process steps are intended to help ensure that EPA's activities during
the many phases of drafting and finalizing all rules are efficiently
and effectively focused on achieving the desired outcomes.
Third, although EPA stated that our evidence did not support our
conclusions and recommendations, it did not challenge the accuracy of
the information we provided on how it considered environmental justice
during the many phases of developing the three final rules discussed in
the body of our report and the three proposed rules discussed in
appendix II. While it provided detailed information on certain
activities and the rationale for undertaking them, our report already
discussed nearly all of these activities. For example, EPA noted at
length its efforts, after drafting the gasoline rule, to hold
discussions with environmental justice and other groups on issues
relating to permits that refiners would need if they increased their
emissions to comply with the rule. We already acknowledged these
efforts in our report. However, EPA's efforts at this stage do not
mitigate the fact that it devoted little attention to environmental
justice up to that point, nor the fact that discussions with affected
groups, while beneficial, do not offset the effects of possible
increases in refinery emissions on these groups. EPA is essentially
relying on state and local governments to deal with environmental
justice concerns as they implement the gasoline and diesel rules at the
refinery level, even though the executive order does not apply to state
or local governments, and, absent specific state or local law, they
have no obligation to consider environmental justice when issuing
permits. In addition, the three final rules were selected in part
because they mentioned environmental justice and should have showcased
EPA's efforts to consider environmental justice. Thus, we continue to
believe that the evidence we provided supports our conclusions and
recommendations.
Finally, aside from its general statement that the evidence we
presented does not support our conclusions and recommendations, EPA
generally did not respond to our four recommendations. We continue to
believe that all of them are still warranted. With respect to our
recommendation that workgroups devote attention to environmental
justice while developing clean air rules, EPA stated that it "devoted
appropriate attention to environmental justice issues" in the three
final rules. EPA's guidance suggests that environmental justice be
considered both at the beginning of process (when the rules are
drafted) and at the end of the process (when they are finalized).
However, nearly all of the attention EPA described came at the end of
the process--after receiving public comments.
EPA responded in part to our recommendation on the need to provide
guidance and training to workgroup members and the need to involve
environmental justice coordinators. EPA did not provide any information
that would refute the finding on the lack of guidance and training, for
example, by bringing to our attention any guidance or training that it
provides to workgroup members. However, EPA noted that an environmental
justice coordinator "was heavily involved" in one of the three final
rules and became an "ad hoc member" of the workgroup for the gasoline
rule "around the time the rule was proposed." From EPA's comment, it is
clear that the coordinator became involved only at the end of the
process of drafting this rule (i.e., "around the time the rule was
proposed"). Further, EPA did not mention whether a coordinator was
involved at all in the other two final rules, nor in the three proposed
rules.
EPA did not comment specifically on our recommendation on the need to
improve assessments of potential environmental justice impacts in
economic reviews or provide any information that would refute the
finding that led to it. EPA responded in part to our recommendation on
the need to respond fully, when feasible, to public comments on
environmental justice. Specifically, it noted that it did not respond
to comments on the Advanced Notice of Proposed Rulemaking on the diesel
rule, and that it is has no legal or policy obligation to respond to
comments on an Advanced Notice of Proposed Rulemaking. Although we
understood that EPA's public involvement policy calls for the agency to
include a response to all comments when feasible, we revised our report
to reflect EPA's comment that it had no obligation in such instances.
As arranged with your office, we plan no further distribution of this
report until 15 days after the date of this letter, unless you publicly
announce its contents earlier. At that time, we will send copies of
this report to interested congressional committees and the EPA
Administrator. We will make copies available to others upon request.
This report will also be available at no cost on GAO's Web site at
[Hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or [Hyperlink, stephensonj@gao.gov].
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this report. GAO staff that
made major contributions to this report are listed in appendix V.
Sincerely yours,
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I:
Information about the Three Final Clean Air Rules That We Examined:
Short title used in this report: Full title;
Gasoline rule: Control of Air Pollution from New Motor Vehicles: Tier 2
Motor Vehicle Emissions Standards and Gasoline Sulfur Control
Requirements;
Diesel rule: Control of Air Pollution from New Motor Vehicles: Heavy-
Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur
Control Requirements;
Ozone implementation rule: Final Rule to Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Phase 1.
Short title used in this report: EPA summary of the rule;
Gasoline rule: This rule is designed to significantly reduce the
emissions from new passenger cars and light trucks, including pickup
trucks, vans, minivans, and sport-utility vehicles, to provide for
cleaner air and greater public health protection.
This rule treats vehicles and fuels as a system, combining requirements
for cleaner vehicles with requirements for lower levels of sulfur in
gasoline;
Diesel rule: This rule reduces particulate matter and nitrogen oxides
emissions from heavy-duty engines by 90 percent and 95 percent below
current standard levels, respectively, to decrease health impacts
caused by diesel emissions.
Under this rule, a heavy-duty vehicle and its fuel are regulated as a
single system, combining requirements for new heavy-duty engines to
meet more stringent emission standards and reductions in the level of
sulfur allowable in highway diesel fuel;
Ozone implementation rule: To provide certainty to states and tribes
regarding classifications for the 8-hour national ambient air quality
standards (NAAQS) and their continued obligations with respect to
existing requirements.
This rule addresses the following topics: classifications for the 8-
hour NAAQS; revocation of the 1-hour NAAQS; how antibacksliding
principles will ensure continued progress toward attainment of the 8
hour ozone NAAQS; attainment dates; and the timing of emissions
reductions needed for attainment.
Short title used in this report: Final rule in the Federal Register;
Gasoline rule: 65 Fed. Reg. 6698, 02/10/2000;
Diesel rule: 66 Fed. Reg. 5002, 01/18/2001;
Ozone implementation rule: 69 Fed. Reg. 23951, 04/30/2004.
Short title used in this report: Response to comment date;
Gasoline rule: 12/20/1999;
Diesel rule: 12/21/2000;
Ozone implementation rule: 04/15/2004.
Short title used in this report: Final economic review date;
Gasoline rule: 12/1999;
Diesel rule: 12/2000;
Ozone implementation rule: 04/ 2004.
Short title used in this report: Proposed rule in the Federal Register;
Gasoline rule: 64 Fed. Reg. 26004, 05/13/1999;
Diesel rule: 65 Fed. Reg. 35430, 06/02/2000;
Ozone implementation rule: 68 Fed. Reg. 32802, 06/02/2003.
Short title used in this report: Date of economic review for proposed
rule;
Gasoline rule: 04/1999;
Diesel rule: 05/2000;
Ozone implementation rule: 04/2003.
Short title used in this report: Workgroup initiated date;
Gasoline rule: 08/19/1998;
Diesel rule: 09/01/1999;
Ozone implementation rule: 08/21/2001.
Source: The Federal Register and EPA.
[End of table]
[End of section]
Appendix II: EPA's Consideration of Environmental Justice in the
Drafting of Three Proposed Clean Air Rules:
Because of substantial congressional interest, we are including
information about how the Environmental Protection Agency (EPA)
considered environmental justice during the drafting of three
additional proposed clean air rules, up through their publication in
the Federal Register. The three proposed rules we reviewed were as
follows:
* The December 2002 New Source Review proposed rule, which proposed a
change in the category of activities that would be considered routine
maintenance, repair, and replacement under the New Source Review
Program.[Footnote 12]
* The January 2004 mercury proposed rule, which proposed two methods
for regulating mercury emissions from certain power plants.[Footnote 13]
* The January 2004 proposed Clean Air Interstate Rule (interstate
rule), which, among other things, proposed a requirement that 29 states
and the District of Columbia revise their state plans to include
control measures limiting emissions of sulfur dioxide and nitrogen
oxides.[Footnote 14]
When we completed our initial fieldwork, these rules had not been
finalized. Since then, the mercury and interstate rules have been
finalized and a portion of the New Source Review rule has been
finalized. Additional detail on these rules is provided in table 4.
Table 4: Information about Three Proposed Clean Air Rules:
Short title: Full title;
Mercury rule[A]: Proposed National Emission Standards for Hazardous Air
Pollutants; and, in the Alternative, Proposed Standards of Performance
for New and Existing Stationary Sources: Electric Utility Steam
Generating Units;
New Source Review routine maintenance: Prevention of Significant
Deterioration (PSD) and Non-attainment New Source Review (NSR): Routine
Maintenance, Repair and Replacement;
Clean Air Interstate Rule: (interstate rule): Rule to Reduce Interstate
Transport of Fine Particulate Matter and Ozone (Interstate Air Quality
Rule).
Short title: EPA summary of the rule;
Mercury rule[A]: This rule would set national emission standards or
standards of performance for mercury emissions from new and existing
coal-fired power plants.
One approach would require coal-fired power plants to meet emission
standards reflecting the application of currently available pollution
controls known as "maximum achievable control technologies" (MACT). The
second approach would set a cap on the total mercury emissions allowed
from coal-burning power plants nationwide and would allow emissions
trading; New Source Review routine maintenance: The rule would provide
a future category of activities that would be considered "routine
maintenance, repair and replacement" for the New Source Review Program,
as well as an annual allowance for such activities.
Two categories would be considered routine maintenance, repair, and
replacement: (1) certain activities as long as the facility's annual
maintenance, repair, and replacement allowance is not exceeded and (2)
replacement of certain components that meet EPA's equipment replacement
provision criteria;
Clean Air Interstate Rule: (interstate rule): The rule would require 29
states and the District of Columbia to revise their state
implementation plans to include control measures to reduce emissions of
sulfur dioxide and/or nitrogen oxides.
Based on EPA's finding that the 29 states and the District of Columbia
contribute significantly to nonattainment of the national ambient air
quality standards for fine particles and/or 8-hour ozone in downwind
states, EPA would require statewide sulfur dioxide and nitrogen oxide
reductions. Besides requiring reductions on controls for power plants,
the proposed rule discusses a model multistate cap and trade program
that states could choose to adopt. The model trading program would be
proposed in a supplemental action.
Short title: Proposed rule in the Federal Register;
Mercury rule[A]: 69 Fed. Reg. 4652, 01/30/2004;
New Source Review routine maintenance: 67 Fed. Reg. 80290, 12/31/2002;
Clean Air Interstate Rule: (interstate rule): 69 Fed. Reg. 4566,
01/30/04.
Short title: Date of economic review for proposed rule;
Mercury rule[A]: The assessment consisted of (1) an EPA memorandum to
the docket on Economic and Energy Impact Analysis for the MACT
rulemaking on 01/28/2004; (2) a memorandum to the docket called the
regulatory flexibility analysis on 12/15/2003; and (3) a MACT benefit
analysis of 01/2004;
New Source Review routine maintenance: 11/2002;
Clean Air Interstate Rule: (interstate rule): 01/2004.
Short title: Workgroup initiated date;
Mercury rule[A]: 04/06/2001;
New Source Review routine maintenance: 02/11/2002;
Clean Air Interstate Rule: (interstate rule): Prior to 08/30/2003.
Source: The Federal Register.
[A] The proposed rule also addressed nickel emissions. A supplemental
notice of proposed rulemaking was published in March 2004.
[End of table]
EPA officials told us that they did not consider environmental justice
while drafting two of these three proposed rules. Moreover, in our
analysis of these rules' economic reviews, we found no discussion of
environmental justice for two of the three rules. Finally, when
published in the Federal Register, none of the proposed rules discussed
environmental justice.
Workgroups Devoted Little Attention to Environmental Justice:
The three workgroup chairs provided initial reports to senior
management in tiering forms to help establish the level of senior
management involvement needed in developing the rule. In these initial
reports, all three proposed rules were classified as top priority. The
forms were to be used to alert senior managers to potential issues
related to compliance with statutes, executive orders, and other
matters. Environmental justice was not a specific element on the form
at the time, and the reports for the three rules did not discuss
environmental justice.
The chair of the New Source Review workgroup said his group did not
consider and address environmental justice early in the development
process because the rule was to be applied nationally and was
prospective in nature. The chair of the interstate rule workgroup said
his group conducted no environmental justice analysis. Finally, the
chair for the mercury workgroup said his group considered environmental
justice in drafting the proposed rule, but he provided no details about
how it was considered.
Workgroup members' ability to identify potential environmental justice
concerns may have been limited by a lack of guidance, training, and
involvement by environmental justice coordinators. Specifically, all
three chairs said that their workgroups did not receive guidance for
how to consider environmental justice when analyzing the rules.
Furthermore, while the mercury workgroup chair said that he had
received training on environmental justice, the other two chairs said
they had received no such training. All three chairs said they did not
know whether other members in their workgroups had received
environmental justice training. Also, all three chairs said that
environmental justice coordinators did not assist their workgroup.
Little Attention Was Devoted to Environmental Justice in the Economic
Reviews:
EPA prepared an economic analysis for all three rules. Among these
economic analyses, only the review for the New Source Review rule
stated that environmental justice was unlikely to be a problem because
the potential for disproportionate effects generally occurs as a result
of decisions on siting new facilities, and EPA noted that this rule
dealt exclusively with existing facilities. The analysis for the
mercury rule did not discuss environmental justice. The analysis stated
that--due to technical, time, and other resource limitations--EPA was
unable to model the changes in mercury emissions that might result from
the rule. However, EPA stated that to the extent mercury emissions do
have adverse health effects, the proposed rule would reduce emissions
and subsequent exposures of people living near power plants.[Footnote
15] The analysis for the interstate rule did not discuss environmental
justice. It was not discussed, according to the supervisor for
economists in the Office of Air and Radiation, because the rule was
expected to provide nationwide benefits and because EPA lacked the data
and modeling capability to predict how regulated entities will react to
the requirements of the rule.
Proposed Rules Did Not Discuss Environmental Justice:
We found no discussion of environmental justice in any of the three
rules, as they were published in the Federal Register. Neither
Executive Order 12898 nor EPA guidance requires a discussion of
environmental justice in proposed rules. According to EPA officials,
such a discussion was not necessary for these three rules because they
did not believe the rules would have any environmental justice impacts.
[End of section]
Appendix III:
Scope and Methodology:
To determine how EPA considered environmental justice when developing
significant rules under the Clean Air Act, as amended, we reviewed an
EPA database of clean air rules finalized during fiscal years 2000
through 2004. We assured ourselves that the database was reliable for
our purposes. Rules are considered significant and sent to the Office
of Management and Budget for review if their expected annual costs or
benefits exceed $100 million; they raise novel legal or policy issues;
or they may interfere with actions undertaken by another federal agency
or state, local, or tribal governments. In addition, rules that involve
the Administrator or an interoffice review are considered high priority
within EPA. We identified 19 clean air rules EPA finalized in our time
period that were considered significant and a high priority. We then
reviewed the 19 rules in the Federal Register to identify those rules
that mentioned the terms "environmental justice" or "Executive Order
12898" and found 3 rules that mentioned one or both terms. The 16 rules
that did not mention environmental justice included rules relating both
to mobile sources, such as a rule to control the emissions of air
pollution from nonroad diesel engines and fuels, and rules relating to
stationary sources, such as a final rule to establish a national
emission standard for hazardous air pollutants at iron and steel
foundries. We focused on the three rules that mentioned environmental
justice because we believed they were more likely to demonstrate how
EPA considered this issue in clean air rulemaking.
To determine how EPA considered environmental justice as it drafted and
finalized clean air rules, we reviewed EPA documents and interviewed
EPA officials, including workgroup leaders. To characterize how or
whether EPA's economic reviews for the rules considered environmental
justice, we analyzed both the preliminary and final economic reviews
for each rule and interviewed the supervisor of the economists who
developed the reviews. To determine whether the public raised
environmental justice concerns in commenting on proposed rules and how
EPA addressed those comments, we reviewed EPA documents, such as the
agency's summaries of comments and responses, and the final rules as
published in the Federal Register.
We conducted our work between July 2004 and May 2005 in accordance with
generally accepted government auditing standards.
[End of section]
Appendix IV: Comments from the Environmental Protection Agency:
United States Environmental Protection Agency:
Washington, D.C. 20460:
June 10, 2005:
Office Of Air And Radiation:
Mr. John B. Stephenson:
Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Stephenson:
The Environmental Protection Agency's Office of Air and Radiation (OAR)
takes environmental justice seriously. OAR has taken a comprehensive
look at its programs to determine how, with respect to air quality, to
achieve "the fair treatment of people of all races, cultures, and
incomes with respect to the development, implementation, and
enforcement of environmental laws, and policies, and their meaningful
involvement in the decisionmaking processes of the government."[1]
OAR's goal is to achieve environmental justice by decreasing the burden
of environmental risks on all communities by improving air quality[2]
Indeed, as stated by then Administrator Whitman, "Environmental justice
is achieved when everyone, regardless of race, culture, or income,
enjoys the same degree of protection from environmental and health
hazards."[3]
EPA is disappointed that the Draft Report does not accurately reflect
the progress we are making in achieving environmental justice with
respect to air pollution; nor does it accurately reflect the way in
which the three final rules GAO reviewed, and EPA's development of
them, address environmental justice issues. The Draft Report focuses on
three final rules: two mobile source rules issued in the Clinton
Administration and a rule issued last year establishing a framework for
bringing all areas in the country into attainment with the national
health-based ozone standard. When objectively examined on the record,
the three final rules reviewed by GAO demonstrate that OAR paid
appropriate attention to environmental justice during the rulemakings.
The Draft Report's description of how EPA considered environmental
justice in these rules contains a number of factual inaccuracies and
misleading statements, and omits important information. These three
final rules do not provide support for GAO's conclusions and
recommendations.
More importantly, we believe GAO's approach is too narrow and does not
ask the right questions. The Draft Report focuses on process issues--
like whether environmental justice was listed on an intra-agency form
used to track a rule. It completely neglects the most important issues--
do the rules advance or hinder environmental justice? Do they help
provide cleaner air to the people who need it? Judged against these
standards, these three rules, and OAR's program in general, show that
OAR is making important progress in addressing environmental justice
issues.
Summary:
Contrary to the Draft Report's conclusion, the three final rules GAO
reviewed demonstrate that OAR paid appropriate attention to
environmental justice issues. EPA concluded that one of the three final
rules, the Phase I Ozone Implementation Rule (Phase I Rule), did not
raise environmental justice concerns. No one submitted comments
disagreeing with EPA's conclusion. In fact, the Phase I Rule
establishes key elements of the framework to bring all areas of the
country into attainment with the national health-based 8-hour ozone
standard--an important environmental justice goal.
It is hard for us to see the Tier 2/Low Sulfur Gasoline Rule (Tier 2
Rule) as anything but an environmental justice success story. This rule
will improve air quality for millions of Americans, especially those
living in urban areas or that otherwise have high exposure to car and
light-duty truck emissions. The Agency did sufficient analysis to
identify the potential environmental justice issues and to identify the
permitting process as the way to address them under the Clean Air Act.
We then conducted extraordinary outreach efforts with various
stakeholders, including representatives of the environmental justice
community and communities near refineries, to determine how to resolve
conflicting objectives of the refiners and the local communities with
regard to the permitting process. Due in large part to comments from
the environmental justice community, EPA declined to adopt some changes
to the permitting process that were suggested by the refinery industry
and opposed by the environmental justice community.
The Heavy Duty Diesel Engine/Low Sulfur Diesel Rule (Heavy Duty Diesel
Rule), which was finalized one year after the Tier 2 rule, helped
address a specific environmental justice concern - certain communities'
disproportionate health risks from diesel exhaust. EPA believed that
the Heavy Duty Diesel Rule raised essentially the same permitting and
refinery-related environmental justice issues that EPA had just
successfully worked with stakeholders to address. Thus, EPA proposed to
resolve those issues the same way for the Heavy Duty Diesel Rule. EPA
did not receive any public comments from environmental justice or local
community groups objecting to EPA's proposal to use this approach.
These three rules are part of a larger program that is making
significant progress in providing cleaner air to communities with high
pollution levels. One measure of this progress is that almost 85% of
the areas that were designated nonattainment (i.e., areas that did not
meet a national, health-based air quality standard) in the early 1990'
for a particular pollutant now have monitored air quality that meets
the standard they were violating, as shown in Table 1.[4] EPA devotes a
significant amount of its air rulemaking resources to bringing cleaner
air to the cities and other areas that do not meet the health-based
standards.
Table 1: Progress in Meeting National Health-Based Attainment
Standards[5]:
Criteria Pollutant: Nitrogen Oxide;
Nonattainment Areas as of 1992: 1;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 0.
Criteria Pollutant: Sulfur Dioxide;
Nonattainment Areas as of 1992: 54;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 0.
Criteria Pollutant: Carbon Monoxide;
Nonattainment Areas as of 1992: 43;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 0.
Criteria Pollutant: Lead;
Nonattainment Areas as of 1992: 13;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 0.
Criteria Pollutant: Coarse Particles (PM 10);
Nonattainment Areas as of 1992: 87;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 21.
Criteria Pollutant: Ozone (1-Hour Standard);
Nonattainment Areas as of 1992: 101;
1992 Nonattainment Areas Currently Monitoring Violations(based on 2003
data): 26.
[End of table]
Phase I Ozone Implementation Rule:
EPA appropriately considered environmental justice during the Phase I
Ozone Implementation Rule (Phase I Rule) and concluded that, based on
what the Rule requires and on the ambient air quality standard-setting
and implementation process, the Phase I Rule does not raise
environmental justice concerns. The work group spent a sufficient
amount of time considering and analyzing environmental justice issues
in the context of this rule.
The Phase I Rule helped establish the framework for states to follow so
that areas that do not meet the health-based 8-hour ozone standard now
will meet that standard in the future.[6] Under the Clean Air Act, once
EPA sets or revises an ambient air quality standard at a level
requisite to protect public health, states and EPA are then required to
adopt appropriate pollution reduction plans to bring all areas in the
country into attainment with the standard. Although EPA had regulated
ozone for decades, in 1997 EPA determined that new scientific evidence
warranted setting a new, more stringent standard to protect people from
ground-level ozone pollution. In setting this standard, EPA considered
the risk to sensitive populations, such as children and people with
respiratory problems. Exposure to ozone has been linked to a number of
health effects, including significant decreases in lung function,
inflammation of the airways, and increased respiratory symptoms, such
as cough and pain when taking a deep breath. Respiratory systems of
children are still developing, and thus are at greater risk from
repeated exposure to ozone.
EPA and the states have identified which areas of the country are not
meeting the 8-hour ozone standard and are in the process of setting up
plans to bring these nonattainment areas into attainment in accordance
with the Clean Air Act schedule. Bringing these areas into attainment
with the 8-hour ozone standard is an important environmental justice
goal; it would make significant progress in providing for the fair
treatment of all people with respect to air pollution. Implementing the
8-hour ozone standard will help continue the trend of improving air
quality. For the 8-hour ozone standard, 2003 ozone levels were 9% lower
than 1990 levels and 21 lower than 1980 levels.
We continue to believe that the Phase I Ozone Implementation Rule does
not present environmental justice concerns. Contrary to the
misimpression conveyed by the Draft Report, public commenters did not
state that the Phase I Rule raised any environmental justice concerns.
Nor has GAO identified any environmental justice concerns in the Phase
I Rule. This is not surprising given that EPA, taking sensitive
populations into account, set the 8-hour standard at a level requisite
to protect public health with an adequate margin of safety. The
implementation process generally, and the Phase I Rule in particular,
are designed to ensure that all communities attain and maintain the
national, health-based 8-hour ozone standard.
The Draft Report is confusing and misleading because it does not
adequately explain when it is referring to the Phase I Rule (which has
been finalized) and when it is referring to the proposed Ozone
Implementation Rule (many elements of which have not been finalized).
EPA initially included all elements of the Ozone Implementation Rule in
one proposal (June 2, 2003), but later decided to divide the numerous
elements of the proposal into two groups and promulgate the final Ozone
Implementation Rule as two separate rules. The first phase was
published April 30, 2004, but the second phase has not been finalized.
EPA responded to the public comments on the elements in the Phase I
Rule, but has not yet responded to comments on portions of the proposal
that it has not yet finalized.
In the preamble to the proposed rule, EPA took comment on the Clean Air
Development Communities (CADC) concept (regarding possible state
adoption of land use planning as a pollution reduction strategy) and
noted that it might raise environmental justice concerns. As the Draft
Report notes, public comments were submitted that raised environmental
justice concerns with this concept. EPA has not responded to these (or
any other) comments on the CADC concept because, as GAO notes, this
element has not yet been finalized.[7] Since the Phase I Rule did not
include a final decision on the CADC concept, EPA had no obligation to
respond to these comments in the Phase I rulemaking. In fact, it is
difficult to see how EPA could prepare a response given that we have
not yet made any final decision on this element of the proposal.
GAO should state explicitly that the public comments did not raise
environmental justice issues on the Phase I Rule and that EPA was not
required in that final rule to respond to environmental justice issues
on an element of the proposed Ozone Implementation Rule that we have
not finalized. The Draft Report is inconsistent (or at least
confusing), claiming that public commenters stated that all three rules
(which could be read to include the Phase I Rule) raised environmental
justice issues, but later noting that EPA has not finalized the element
of the proposed Ozone Implementation Rule that prompted the comments
about environmental justice. The Draft Report could also be read as
criticizing the Agency for failing to respond to environmental justice
comments on one element of the proposed Ozone Implementation Rule. Such
criticism would be unfair because EPA responded to comments on the
issues raised by the elements in the final Phase I Rule, commenters did
not raise environmental justice issues on the Phase I Rule elements,
and EPA is simply not in a position to respond to comments on a concept
on which it has not yet taken final action.
The Tier 2/Low Sulfur Gasoline Rule:
The Tier 2/Low Sulfur Gasoline Rule (Tier 2 Rule), which was issued in
December 1999, tightened emission standards for cars and light-duty
trucks (including sport utility vehicles) and established a low sulfur
requirement for gasoline. The low sulfur gasoline requirement was
necessary to enable the vehicles' pollution control equipment to
operate properly. As a result, we have passenger vehicles that are 77%
to 95% cleaner than 2003 vehicles. The rule was designed in large part
to help reduce ozone pollution, especially in large, urban areas where
emissions from passenger vehicles represent a relatively large
contribution to the problem. Limiting passenger vehicle emissions of
ozone precursors is one of the keys to ensuring that areas come into
(and stay in) attainment with the health-based ozone standards. For
example, in the Tier 2 Rule, we estimated that before large numbers of
Tier 2 vehicles are on the road, passenger vehicles would represent
about 16% of nitrogen oxides (NOx) emissions and 13% of Volatile
Organic Compounds (VOC) emissions nationally. These numbers are higher
in some urban areas: 34% of NOx and 17 % of VOC in Atlanta, 24% of NOx
and 15% of VOC in Charlotte. EPA's Tier 2 analysis estimated that, by
the time Tier 2 vehicles are fully phased in, the contribution of
passenger vehicles would drop dramatically, to about 5% of NOx and 9%
of VOC emissions nationwide.
We agree with GAO that this rule raises potential environmental justice
issues. The Draft Report is incorrect in stating or implying that the
Agency believes otherwise. In the preamble to the final Tier 2 rule, in
a section labeled "Environmental Justice," we stated,
We believe it is important to understand and address concerns relating
to potential localized emissions increases from refineries that make
significant process changes to meet the requirements of the Tier 2
rule. To this end, the Agency has already taken some actions to
mitigate potential environmental justice concerns.
65 FR at 6774. It is clear that the Agency's official position was that
Tier 2 raised potential environmental justice issues. Otherwise there
would have been nothing to mitigate. Furthermore, EPA officials told
GAO that the Tier 2 Rule raised potential environmental justice issues
due to the potential for emission increases at some refineries. In the
Preamble to the Final Tier 2 Rule, EPA published its belief that,
"Although we expect residual emissions increases at some refineries
even after installing the stringent level of emissions controls
required under the Act, for the vast majority of areas, we believe that
these potential refinery emissions increases will be very small
compared to the Tier 2 benefits in those same local areas." That
statement indicates EPA's belief that Tier 2 would not cause
environmental justice issues in the vast majority of areas, but it also
demonstrates that EPA understood that some areas (albeit not the vast
majority) were facing a potential net increase in emissions and, thus,
potential environmental justice issues.
The Draft Report (particularly the Highlights page) misleadingly
creates the impression that EPA did not recognize or address
environmental justice concerns, when actually EPA was quite sensitive
to them. In fact, EPA took action to address environmental justice
concerns based on the potential for such concerns to arise rather than
requiring proof that such concerns would arise. Given what EPA knew
about the NSR permitting process and the great incentive it gave
refineries to make changes without increasing emissions, and given the
commitments EPA made regarding the permitting process, EPA staff
believed that, as a factual matter, as the rule was implemented, it was
unlikely to pose environmental justice concerns. However, EPA
recognized that there was the potential for local emissions increases,
and thus the potential for environmental justice concerns, and took
steps to address that potential.
The Draft Report should not state that EPA officials told GAO that the
Tier 2 rule, as published in final form, did not create environmental
justice issues without explaining the context given above and noting
that the Agency took steps to address potential environmental justice
concerns. The Draft Report also should not state that EPA "published
its belief that the rule would not create such [environmental justice]
issues" without noting that this statement appeared in the Response to
Comments technical support document in a paragraph that acknowledged
the potential for environmental justice concerns, that it did not
appear in the preamble that was published in the Federal Register, and
that the published preamble acknowledged potential environmental
justice concerns and set forth steps EPA took to mitigate those
concerns.
Having identified potential environmental justice issues (i.e.,
potential refinery emissions increases), EPA identified the new source
review (NSR) permitting process, a largely state-run program required
by the Clean Air Act, as the way to address potential increased
refinery emissions. Under the NSR permitting program, a refinery that
wanted to increase its emissions significantly would have to obtain a
permit, which would require local air quality modeling and could
require the installation of pollution control equipment. By operating
the NSR permitting program (which is designed to provide environmental
protection for all citizens) the states are working to achieve the goal
of environmental justice, although, as the Draft Report notes, the
states are not subject to the environmental justice Executive Order
(EO). Some local community representatives noted some concerns with
relying on state agencies, but Congress made the decision in the Clean
Air Act that local authorities are in a better position than EPA to
assess and protect local interests related to emissions increases at
existing refineries. EPA did not receive any public comments suggesting
that EPA should issue a national rule limiting potential refinery
emissions increases resulting from meeting Tier 2 requirements.
Theoretically, EPA could have decided not to issue the low sulfur fuel
requirements and the tighter emissions standards for cars and trucks.
Even if that option was legally permissible, it was unacceptable. It
would have meant foregoing important air quality improvements for the
millions of people that are exposed to motor vehicle emissions and
resulting air pollution, including people in urban areas and other
communities suffering from heavy air pollution burdens. EPA is not
aware of any public comment filed by representatives of the
environmental justice community, national or local environmental
groups, or communities near refineries recommending that EPA not issue
the Tier 2 Rule.[8]:
GAO does not conclude or suggest that we had a different option for
addressing these potential environmental justice issues. Rather, the
main conclusion of the Draft Report on this front is that we should
have done more analysis so we could better quantify the environmental
justice issues. Even if additional analysis could have been done in a
meaningful time period, it could not have changed EPA's decision that
NSR permitting was the way to address these potential increased
refinery emissions.
EPA and various stakeholders focused a significant amount of attention
on the permitting process because of conflicting objectives related to
the process. Environmentalists and environmental justice
representatives desired a robust permitting process to protect air
quality in communities near refineries, while refiners saw the permit
process as a potential obstacle to timely compliance with the proposed
low sulfur rule. Refiners suggested several ways of limiting or
removing this "obstacle," including options that would have allowed
refiners to make significant emissions increases at the facility while
avoiding the permitting process altogether. Representatives of the
environmental justice community were particularly troubled by the
suggestion that, because of national environmental benefits, refiners
would be allowed to increase emissions without going through the local
permitting process. Some of the refiners' suggested approaches (which
the proposal preamble discussed and on which it took comment) would
have limited or eliminated local communities' ability to participate in
the permit process.
Because local communities' opportunity for meaningful participation in
the permitting process for refineries is itself an important
environmental justice value, suggested changes to the permitting
process raised environmental justice issues independent of the
potential for increased local emissions. The Draft Report seems to miss
completely the environmental justice ramifications of the permitting
process with respect to local communities' opportunity for meaningful
participation - even though the environmental justice EO recognizes the
opportunity for public participation as an important component of
environmental justice. EPA staff who worked on the Tier 2 rulemaking
recall the permitting issue as the one about which environmental
justice representatives were most concerned.
Having identified the way to address the potential emissions increases
that raised environmental justice concerns and being aware of the
environmental justice issues raised by options that would limit public
participation in permitting refinery changes, EPA spent a considerable
amount of time trying to understand and reconcile the conflicting
objectives related to refinery permitting for Tier 2 changes. An OAR
environmental justice coordinator was heavily involved in development
of EPA's resolution of the permitting process issues and became an ad
hoc member of the Tier 2/low sulfur work group around the time the rule
was proposed. In addition, a representative from EPA's Office of
Environmental Justice (OEJ) was involved in a number of conference
calls regarding the permitting issues after the proposed rule was
published. GAO's statement that OAR environmental justice coordinators
were not involved in the Tier 2 rulemaking is either incorrect or
misleading given the coordinator's involvement in the Tier 2-related
permitting issues.
The Agency took extraordinary measures to facilitate participation by
environmental justice representatives and others in the rulemaking
process on these issues. As described in the final rule preamble (65 FR
at 6774):
[OAR] and the Alternative Dispute Resolution Team in the Office of the
Administrator implemented a national convening process which was
designed to bring together a broad spectrum of stakeholders to explore
with them their perceptions and views of issues associated with Tier 2
permitting and to assess the potential for a collaborative process to
address specific implementation issues at some time in the future. The
convening was carried out by an outside neutral who conducted
interviews with representatives from selected EPA offices, States,
industry, environmental groups, and environmental justice
organizations. Second, EPA held informational briefings and provided
background materials to the National Environmental Justice Advisory
Council's (NEJAC) Air and Water Subcommittee and Enforcement
Subcommittee to provide an opportunity for them to provide feedback and
recommendations to the Agency. Finally, in October 1999, we met with
both national environmental groups and environmental justice advocacy
representatives, to discuss their views on the permitting aspects of
the proposed rule.
The environmental justice organizations' comments and concerns affected
EPA's final action. EPA affirmed the importance of public participation
in local permitting decisions and made it clear that none of the
measures we adopted would limit public participation in the permitting
process, thereby protecting an important environmental justice value.
EPA rejected many of the methods the industry had suggested for
expediting permit decisions or allowing refineries new methods to avoid
triggering the permit process. EPA committed to facilitate
communication among permit applicants, permitting authorities and
community members in the hope that the community concerns could be
expressed and resolved as early as possible in the permitting process.
EPA also committed to provide broad guidance on Best Available Control
Technologies, to issue guidance on potential use of mobile source
reductions as offsets, and to form permit teams which would be able to
assist, when requested, communities, states and refiners who might have
special concerns.
The Draft Report's conclusion that EPA paid "limited" attention to
environmental justice issues related to the final Tier 2 rulemaking is
contradicted by the amount of time and effort EPA spent resolving
issues related to the refinery permitting process, and the fact that
EPA ultimately agreed with the position of environmental justice
community representatives and rejected many of the industry-supported
suggestions for modifying the permitting process for Tier 2-related
refinery changes. Further analysis was not required by the
environmental justice EO and could not have changed the result.
Heavy Duty Diesel Engines/Low Sulfur Diesel Rule:
The Heavy Duty Diesel Engine/Low Sulfur Diesel Rule (Heavy Duty Diesel
Rule), which was issued in December 2000, will provide the cleanest
running heavy-duty trucks and buses in history. These vehicles will be
95 percent cleaner than today's trucks and buses. As with Tier 2, low
sulfur fuel requirements were necessary to enable the engines'
pollution control equipment to operate properly. By addressing diesel
fuel and engines together as a single system, the rule will reduce 2.6
million tons of smog-causing nitrogen oxide emissions each year once
the program is fully implemented. Emissions of soot, or particulate
matter, will be reduced by nearly 110,000 tons each year. As a result,
the emission reductions will prevent 8,300 premature deaths, 5,500
cases of chronic bronchitis, and 17,600 cases of acute bronchitis in
children. It will also avoid over 360,000 asthma attacks and more than
386,000 cases of respiratory symptoms in asthmatic children annually.
The rule will prevent 1.5 million lost work days, 7,100 hospital
admissions and 2,400 emergency room visits for asthma every year. By
any measure, this rulemaking provides significant and meaningful public
health protection.
EPA paid an appropriate amount of attention to environmental justice
issues during the development of the Heavy Duty Diesel rule, which was
proposed just months after the Tier 2 rule was finalized. The
environmental justice issues were virtually identical to those that EPA
had just resolved as part of the Tier 2 rulemaking process, so EPA
relied on the work that had been done during the Tier 2 rulemaking and
proposed to resolve the issues the same way.
The heavy duty diesel rule presented essentially the same environmental
justice issues as did the Tier 2 rule, with one exception. The rule
itself was responsive to specific environmental justice concerns that
had been raised by local community groups and environmental groups
regarding exposure to diesel exhaust in communities near heavy truck
traffic. One report found that "These affected communities, and the
workers at these distribution facilities with heavy diesel truck
traffic, are bearing a disproportionate burden of the health risks."[9]
Numerous environmental justice and local environmental representatives
supported the heavy duty diesel rule, and the main environmental
justice concern expressed was the need to reduce diesel emissions as
soon as possible.
EPA clearly stated early in the development of the diesel rule that it
would follow the same approach to permitting (and therefore, the same
approach to environmental justice issues related to potential refinery
emissions increases) that had been set up for Tier 2-related permits.
We did not receive negative comments on this proposed approach by
members of the environmental justice community or other public health
groups.
The Draft Report's criticism of EPA for failing to respond to
environmental justice comments on the diesel rule appears to be based
on a misunderstanding of the rulemaking process. EPA was not obligated
to respond to these comments because they were filed on the Advanced
Notice of Proposed Rulemaking (ANPRM).[10] The ANPRM was published in
May of 1999, while EPA was still involved in the Tier 2 rulemaking and
before EPA had finished its outreach efforts with stakeholders and
resolved the Tier 2 refinery permitting issues. An ANPRM provides an
opportunity for interested stakeholders to provide input to EPA early
in the process as the Agency is developing a proposed rule. To the
extent appropriate, EPA takes comments on the ANPRM into account in
developing the proposal. Although commenters apparently conveyed
concerns about localized emissions increases based on the specific
request for comments in the ANPRM, they did not repeat these comments
once they had the opportunity to review the specific proposal we issued
in June, 2000. EPA assumes this is because the commenters were
satisfied with the way the proposal addressed the issues. EPA does not
have a legal or policy obligation to respond to comments filed on an
ANPRM, and it is not OAR's practice to develop a Response to Comments
document for comments on an ANPRM.
OAR'S Environmental Justice Plan:
Understanding OAR'S approach to environmental justice requires more
than a review of a few isolated rules. To improve air quality in all
communities, we start with the base of air quality improvements we can
achieve by issuing strong, national rules under the Clean Air Act.
Although these national programs are an important component of
decreasing environmental risks to all communities, OAR recognizes that
they are not wholly sufficient. In some instances, some communities,
including minority and low-income communities, will face a higher level
of environmental risk than the general population and will need
reductions beyond what we can provide through national rules. OAR staff
attempt to identify specific areas where minority and low-income
populations are being disproportionately exposed to environmental
hazards or where there are potential benefits to minority and low-
income communities (i.e., through transportation and air quality
improvements, mass transit policies, and voluntary programs). Since
1998, OAR staff have worked closely with the National Environmental
Justice Advisory Council's (NEJAC's) Air and Water Subcommittee and
other grassroots organizations to ensure the integration of
environmental justice in our programs, policies, and activities in a
manner which is consistent with existing environmental laws and
implementing regulations. As a result of these discussions, we are
involved in a number of activities that, in collaboration with local
communities, focus on getting emission reductions that are of
particular concern to those communities.
Since 1970, steps taken under the Clean Air Act have dramatically
reduced air pollution in the United States, producing significant
health benefits. Many of these emission reductions and health benefits
have occurred in both urban and rural areas with environmental justice
concerns. Everyday, clean air programs across the nation prevent
roughly:
* 600 premature deaths;
* 2,000 cases of chronic illness, such as asthma and bronchitis;
* 300,000 cases of minor respiratory illness, such as aggravated
asthma; and:
* 75,000 people from missing work.
The cornerstone of the Clean Air Act is the program to set and attain
the health-based national ambient air quality standards (NAAQS), which
is done for six pollutants. EPA sets these at a level requisite to
protect public health with an adequate margin of safety. In doing so,
the standards are to protect sensitive populations, such as the
elderly, children or people with respiratory or circulatory problems.
EPA then works with states and tribes to set up monitoring networks to
determine which areas do not meet the standards. Often these areas are
urban areas. Each state is then responsible for ensuring that all areas
within its authority meet the standards on a schedule set out in the
Clean Air Act. EPA has oversight authority over the state plans and has
authority to issue some national rules that will help areas meet the
standards. The goal of the NAAQS program is clean air (as defined by
the standard) everywhere. Achieving this goal should address
environmental justice issues with respect to these regulated pollutants
in most, if not all, communities. OAR has identified continued review
and implementation of the NAAQS as one of its key environmental justice
initiatives.[11]
We are making great progress in meeting these standards, as shown in
Table 1 above. Nationally, since 1970, the country has reduced its
emissions of these key pollutants by 50%.
In 1997, EPA tightened the ozone standard, setting a new 8-hour ozone
standard, and, for the first time, set a standard for fine particles
(PM2.5). EPA recently designated 112 areas nonattainment for the 8-hour
ozone standard (effective 2004) and 47 areas nonattainment for the
PM2.5 standard (effective in 2005). Although we are at the beginning of
the Clean Air Act process for bringing these areas into attainment, we
have already taken significant steps to provide them with cleaner air.
For nonattainment areas in the eastern half of the country, which are
significantly affected by transported pollution from other states, all
but five ozone areas and 14 PM2.5 areas are projected to come into
attainment by 2015 as a result of the Clean Air Interstate Rule (CAIR,
issued March 9, 2005) combined with the Tier 2 and Heavy Duty Diesel
Rules and other existing state and federal programs. Additional state
or local controls will be needed to bring the remaining areas into
attainment.
Emissions of air toxics, which are covered by a different Clean Air Act
regulatory regime, are of particular interest to the environmental
justice community because of the proximity of many minority and low-
income communities to the generators of toxic emissions (e.g.,
industrial facilities, waste transfer stations, roadways, bus
terminals). EPA rules issued since 1990 are expected to reduce
emissions of 188 air toxics by 2.5 million tons a year from chemical
plants, oil refineries, aerospace manufacturing and other industries.
Motor vehicle and fuel programs put in place since 1990 will reduce
total vehicular air toxics by approximately 40 percent.
In addition to national rulemakings, OAR is focusing additional
resources on nonregulatory programs, in part due to environmental
justice concerns. OAR is leading an agency-wide effort to develop and
implement a new community-based, multi-media toxics program, the
Community Action for a Renewed Environment (CARE) program. CARE is
designed to help communities develop collaborative partnerships to
examine and reduce the cumulative risk from toxics, including air
toxics, in their communities. While CARE is not limited to
environmental justice communities, it is designed to address the needs
of those communities. EPA also has an idle reduction program to reduce
air pollution and conserve fuel from idling trucks and locomotives. EPA
has set up non-regulatory, incentive-based, voluntary programs designed
to reduce air pollution from existing school buses and other diesel
engines by replacing old buses and by installing pollution-reducing
technology.
Factual Inaccuracies and Omissions:
We have attached a list containing some of the additional, specific
problems with the Draft Report.
Conclusion:
EPA agrees with GAO that EPA should ensure that it devotes attention to
environmental justice when developing Clean Air Act rules. We believe
the three final rules reviewed in the Draft Report demonstrate that EPA
devoted appropriate attention to environmental justice issues.
The evidence regarding EPA's consideration of environmental justice
during development of three final rules does not support the
conclusions and recommendations in the Draft Report.
Sincerely,
Signed by:
Jeffrey R. Holmstead:
Assistant Administrator:
Attachment:
Notes:
[1] See Administrator Whitman's Memorandum of August 9, 2001.
[2] OAR's 2004-2005 Action Plan to Integrate Environmental Justice at
Page 8.
[3] See n. 1.
[4] As discussed later in this letter, in 1997 EPA determined that new
scientific evidence warranted a health-based standard for fine
particles and a new, more stringent standard (the 8-hour standard) for
ozone. EPA is working with states to meet the Clean Air Act timetable
for bringing into attainment those areas that do not currently meet the
1997 standards.
[5] There are often slight year-to-year variations in the number of
1992 Nonattainment Areas monitoring violations. Please note that EPA
included essentially the same table in a May 18, 2005, Letter from Mr.
Holmstead to Mr. Stephenson regarding GAO's draft report entitled "EPA
Has Completed Most of the Actions Required by the 1990 Amendments, but
Many Were Completed Late." The table in the previous letter, which
showed a higher number of areas monitoring violations than does the
table in this letter, contained some incorrect information.
[6] In particular, it set forth the classification scheme for
nonattainment areas and the requirements for states' continued
obligation with respect to the old, 1-hour ozone standard. The Phase I
Rule revoked the old, generally less stringent 1-hour standard and
adopted measures to avoid backsliding between the time the 1-hour
standard was revoked and the time an area meets the 8-hour standard.
[7] In fact, EPA believes the CADC concept was never a definitive
enough proposal to proceed directly to final rulemaking without a
subsequent, more substantive proposal. As part of a larger rulemaking
package, it is not uncommon for EPA to take comment on concepts that
the Agency is considering but that are not yet developed enough for a
full proposal, as it did here. This alerts stakeholders to and
facilitates discussion on emerging concepts at an early stage of their
development. EPA's use of this approach on the CADC strategy explains
the seemingly contradictory statements GAO noted in the preamble to the
proposed rule. Although the section on the CADC concept suggested that
it might raise environmental justice issues, EPA stated in the
"Environmental Justice" discussion that the proposed Ozone
Implementation Rule did not raise environmental justice concerns. CADC
was an emerging concept on which EPA was attempting to facilitate
discussion. Although EPA proposed draft regulatory text for the
remainder of the proposal (68 FR 46536 (Aug. 6, 2003)), we did not
propose regulatory text for the CADC concept and did not believe it was
definitive enough to be considered part of the proposed rule for
analytical purposes.
[8] Although, in special outreach sessions convened by EPA related to
the Tier 2 permitting issues, individual representatives of some local
groups said they did not want their air quality to get worse even if
there was a net environmental benefit nationally, it is not clear
whether they specifically wanted EPA to stop the Tier 2 Rule.
[9] Exhausted by Diesel: How America's Dependence on Diesel Engines
Threatens Our Health, Natural Resources Defense Council, Coalition for
Clean Air, May 1998.
[10] According to GAO staff, the comments to which we did not respond
were on the ANPRM. The environmental justice related comments on the
proposal were submitted by refiners and expressed a concern that
environmental justice issues would delay permit issuance; EPA responded
to these comments.
[11] OAR 2004-05 EJ Action Plan at Page A-2.
The following are our comments on the Environmental Protection Agency's
letter dated June 10, 2005.
GAO Comments:
1. We disagree with EPA's assertion that the Air Office paid
appropriate attention to environmental justice issues. We found that
EPA devoted little attention to environmental justice in four phases of
drafting the rules and considered environmental justice to varying
degrees in the three phases of finalizing them. EPA provided virtually
no new information on its activities during these phases.
2. EPA was referring to our report entitled Clean Air Act: EPA Has
Completed Most of the Actions Required by the 1990 Amendments, but Many
Were Completed Late, [Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-
05-613] (Washington, D.C.: May 27, 2005).
3. As we stated, several public commenters said that the ozone
implementation rule, as proposed in June 2003, could have potential
environmental justice impacts. As we also stated, in April 2004, EPA
finalized a portion of the ozone implementation rule, which it then
called Phase I; but it did not include the provision that drew the
public comments on environmental justice. EPA officials are still
considering this provision for a second phase of the rule implementing
a new ground-level ozone standard, called Phase II. It is true, as EPA
stated, that we did not identify any environmental justice issues in
the Phase I rule. However, our objective was not to identify such
issues with the rules, but to review how EPA considered environmental
justice in developing the rules.
4. On the basis of EPA's letter, we added clarification about the
"seemingly contradictory statements" in our discussion of the ozone
implementation rule.
5. As we stated, public commenters did raise such issues about all
three rules as they were proposed. As we also stated, EPA did not
finalize the portion of the ozone implementation rule that it, and
others, said could raise environmental justice issues.
6. While EPA stated that our report is misleading and needs further
explanation of context, it is not clear from EPA's comments how the
agency would want us to frame this issue differently. First, EPA
comments that EPA staff believed that, as a factual matter, as the rule
was implemented, it was unlikely to pose environmental justice issues.
Similarly, we state in the report that EPA officials believed that the
final rules did not create environmental justice issues. Second, EPA
stated that we should note the steps that the agency took to address
potential environmental justice concerns. We did so, noting EPA's
discussion of these steps in the final rule. Moreover, in its letter,
EPA stated that it agreed with us that the gasoline rule (finalized in
February 2000) would create "potential environmental justice issues."
It was public commenters, not we, who raised concerns about potential
environmental justice issues.
7. We clarified in the Highlights page and other portions of the report
to note that EPA officials told us, after the rules were finalized,
that none of the rules created an environmental justice issue.
8. We clarified the source of EPA's statements. The preamble of the
final rule is discussed in our report.
9. According to EPA, we stated that the Air Office's environmental
justice coordinators were not involved in the gasoline rulemaking. In
fact, we stated only that the coordinators were not involved in
developing the rule, as opposed to public outreach efforts, where they
were involved. EPA's description of how and when a coordinator was
involved buttressed our point. According to EPA's letter, the
environmental justice coordinator was involved only in resolving
"permitting process issues" and became involved only "around the time
the rule was proposed." Similarly, according to EPA's letter, the
Office of Environmental Justice representative was involved only in
discussions of "permitting issues" and only "after the proposed
[gasoline] rule was published." Thus, it appears that in neither case
were they substantively involved in drafting this rule. We added
language in the report clarifying the discussion of the process.
10. As EPA noted, it devoted resources to seeking public involvement
while finalizing the gasoline rule. Accordingly, we changed our
characterization of EPA's efforts in finalizing the three rules.
11. EPA's public involvement policy provides that it will, to the
fullest extent possible, respond to public comments. We did not see a
distinction in the policy between comments on Advanced Notices of
Proposed Rulemaking and comments on proposed rulemakings. However, EPA
interprets its policy as requiring a response to comments on the latter
but not the former, and we have revised our report accordingly.
[End of section]
Appendix V:
GAO Contact and Staff Acknowledgments:
GAO Contact:
John B. Stephenson (202) 512-3841:
Staff Acknowledgments:
In addition to the individual named above, the key contributors to this
report were John Delicath, Michael A. Kaufman, David Marwick, Thomas
Melito, and Daniel J. Semick. Tim Guinane, Anne Rhodes-Kline, and Amy
Webbink also made important contributions.
(360479):
FOOTNOTES
[1] EPA, Action Development Process (June 30, 2004); Memorandum,
Initiation of EPA's New Regulatory and Policy Development Process (July
1994).
[2] President Clinton issued Executive Order 12866 on September 30,
1993, to begin a program to reform the regulatory process and make it
more efficient.
[3] The document, called an "analytic blueprint," is to be developed
for high-priority rules, according to the 1994 EPA guidance on
rulemaking, to provide an opportunity for early identification of
issues and for the workgroup to reach agreement on how issues will be
resolved. According to the guidance, senior management approval
provides managers with the opportunity to engage in a dialogue with the
workgroup on the analyses that will support the rule.
[4] In commenting on our report, EPA explained its "seemingly
contradictory statements" about the proposed ozone implementation rule.
It said that it sought comments on the proposal, which it said "might
raise environmental justice concerns," to alert stakeholders and
facilitate discussions, and that the proposal was not definitive enough
to proceed to final rulemaking.
[5] A public docket serves as the repository for the collection of
documents or information related to a particular agency action or
activity. It generally consists of documents specifically referenced in
the Federal Register, any public comments received, and other
information used by decision makers or otherwise related to the agency
action or activity.
[6] EPA, Public Involvement Policy of the U.S. Environmental Protection
Agency, EPA 233-B-03-2002, May 2003, which updated a 1981 policy.
[7] EPA's analysis covered counties and parishes.
[8] EPA, Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur
Control Requirements: Response to Comments, EPA 420-R-99-024, December
1999.
[9] In commenting on our draft report, EPA noted that the agency was
not obligated to respond to these comments because they were filed on
an Advanced Notice of Proposed Rulemaking, which provides an
opportunity for interested stakeholders to provide input to EPA early
in the process, and the agency takes such comments into account to an
appropriate extent. Furthermore, EPA said commenters did not repeat
these concerns when the proposal was issued about a year later, and EPA
assumed this was because they were satisfied.
[10] Of the 19 clean air rules that EPA finalized during the time
period we reviewed and that met our criteria, the 3 rules we reviewed
were the only ones that mentioned environmental justice in the final
rule.
[11] The preamble to a rule contains additional text that explains the
rationale behind a proposed or final rule.
[12] 67 Fed. Reg. 80290 (2002). EPA issued a final rule on the
equipment replacement portion of the New Source Review rule in October
2003. 68 Fed. Reg. 61248. EPA has not finalized the remainder of the
rule.
[13] 69 Fed. Reg. 4652 (2004). EPA issued a final mercury rule in March
2005. 70 Fed. Reg. 28606.
[14] 69 Fed. Reg. 4566 (2004). EPA issued a final rule on the
interstate rule in March 2005. 70 Fed. Reg. 25162.
[15] See EPA, Benefit Analysis for the Section 112 Utility Rule, which
is EPA's analysis of a technology-based approach to reducing mercury
emissions from a current level of 48 tons per year to a projected 34
tons per year by 2008. EPA did not finalize this approach; instead, it
finalized an alternative approach to reducing mercury emissions to 38
tons per year in 2010 and 15 tons annually by 2018.
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