Air Pollution

GAO reviewed two of about 55 clean air rules issued by the Environmental Protection Agency (EPA), particularly focusing on White House involvement in the rule-making process. The two rules are the Municipal Waste Combustor (MWC) rule issued in February 1991, which established emission standards for new and guidelines for existing incinerators, and the Operating Permit Program (OPP) rule issued in July 1992, which requires about 35,000 major sources of air pollution to apply for operating permits by November 15, 1996. Although the EPA Administrator said that he made the final decisions on both rules, the content of the rules was changed after review and comment by White House entities, specifically the Office of Management and Budget, the Council on Competitiveness, and the Council of Economic Advisors. For example, the Council on Competitiveness recommended the removal of the MWC rule's waste separation provisions, which EPA did. On the OPP rule, EPA adopted the White House recommendation to allow sources to increase their emissions above permit levels without public notice and comment or prior approval by regulatory agencies. The courts have questioned, in the case of both rules, whether the EPA Administrator adequately supported his decisions in the final rule making. GAO believes that, regardless of the White House's effect on EPA's final rules, full disclosure of discussions with outside parties would contribute to a more complete record, a better explanation of EPA's decisions, and increased public confidence in the integrity of the rule-making process.

GAO found that: (1) two EPA Clean Air Act rules significantly changed after White House participation; (2) there is no evidence that EPA violated Clean Air Act public docket requirements, since it was not required to docket communications between White House entities and nongovernment persons; (3) docket requirements facilitate effective public participation in the rulemaking process and provide the basis for a reviewing court to determine that an EPA rulemaking is not arbitrary and capricious; (4) although EPA and the Office of Management and Budget (OMB) have established procedures for OMB to disclose communications with outside parties, OMB has not always done so; (5) White House failure to disclose all communications on proposed rulemaking could decrease public confidence in the integrity of the rulemaking process; and (6) Congress has considered legislation that would require the disclosure of all oral and written communications between nongovernment persons and White House entities on federal rulemakings.

Recommendations

Our 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.

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