a

GAO

United States Government Accountability Office

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

GAO-05-289
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

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. 

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 

July 2005

ENVIRONMENTAL JUSTICE 

EPA Should Devote More Attention to 

Environmental Justice When Developing 

Clean Air Rules 

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. 

Three Clean Air Rules 

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 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. 
Page i GAO-05-289 Environmental Justice and Clean Air Rules

Contents

Letter 1

Results in Brief 3

Background 7

EPA Generally Devoted Little Attention to Environmental Justice in 

Drafting Three Rules 10

EPA Considered Environmental Justice to Varying Degrees in 

Finalizing Three Rules 16

Conclusions 23

Recommendations for Executive Action 24

Agency Comments and Our Evaluation 24

Appendixes

Appendix I: Information about the Three Final Clean Air Rules That We 

Examined 29

Appendix II: EPA’s Consideration of Environmental Justice in the 

Drafting of Three Proposed Clean Air Rules 30

Workgroups Devoted Little Attention to Environmental Justice 32

Little Attention Was Devoted to Environmental Justice in the 

Economic Reviews 33

Proposed Rules Did Not Discuss Environmental Justice 33

Appendix III: Scope and Methodology 34

Appendix IV: Comments from the Environmental Protection Agency 35

GAO Comments 49

Appendix V: GAO Contact and Staff Acknowledgments 52

Tables Table 1: Changes in Estimated Emissions of National Air 

Pollutants, 1995-2004 8

Table 2: EPA Guidance for Discussion of Executive Orders in 

Proposed Rules 15

Table 3: Estimated Potential Changes in Selected Emissions in 2007 

Resulting from the Gasoline Rule in Counties with 

Refineries 18

Table 4: Information about Three Proposed Clean Air Rules 31
Contents

Page ii GAO-05-289 Environmental Justice and Clean Air Rules

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Page 1 GAO-05-289 Environmental Justice and Clean Air Rules

United States Government Accountability Office

Washington, D.C. 20548

A

July 22, 2005 Letr

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 lowincome 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 
Page 2 GAO-05-289 Environmental Justice and Clean Air Rules

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.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 

1

EPA, Action Development Process (June 30, 2004); Memorandum, Initiation of EPA’s New 

Regulatory and Policy Development Process (July 1994).
Page 3 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 4 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 5 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 6 GAO-05-289 Environmental Justice and Clean Air Rules

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. 
Page 7 GAO-05-289 Environmental Justice and Clean Air Rules

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.
Page 8 GAO-05-289 Environmental Justice and Clean Air Rules

Table 1: Changes in Estimated Emissions of National Air Pollutants, 1995-2004

Source: GAO analysis of EPA data.

a

Data for 2004 are preliminary.

b

Paticulate matter measuring 10 microns or less.

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 

Air emission amount (millions 

of tons per year)

Type of air pollutant emission 1995 2004a

Percentage

change

Carbon monoxide 120.0 87.2 (27)

Nitrogen oxides 24.7 18.8 (24)

Sulfur dioxide 18.6 15.2 (18)

Particulate matterb 3.1 2.5 (19)

Volatile organic compounds 21.6 15.0 (31)

Lead 0.0039 0.0033 (15)
Page 9 GAO-05-289 Environmental Justice and Clean Air 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.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 

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.
Page 10 GAO-05-289 Environmental Justice and Clean Air Rules

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.
Page 11 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 12 GAO-05-289 Environmental Justice and Clean Air Rules

workgroup, which identified issues needing analysis.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. 

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.
Page 13 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 14 GAO-05-289 Environmental Justice and Clean Air Rules

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.
Page 15 GAO-05-289 Environmental Justice and Clean Air Rules

Table 2: EPA Guidance for Discussion of Executive Orders in Proposed Rules

Source: EPA.

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 

Executive order

Guidance Number Title

Executive orders that 

should be discussed

E.O. 12866 Regulatory Planning and Review

E.O. 13045 Protection of Children from Environmental 

Health and Safety Risks

E.O. 13175 Consultation and Coordination with Indian 

Tribal Governments

E.O. 13211 Actions That Affect Energy Supply, 

Distribution, or Use

E.O. 13132 Federalism

Executive orders that may 

be discussed

E.O. 12630 Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights (Takings)

E.O. 12898 Environmental Justice

E.O. 12988 Civil Justice Reform
Page 16 GAO-05-289 Environmental Justice and Clean Air Rules

concentrate commercial, industrial, and residential growth, which it said 

“may raise environmental justice concerns.”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.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.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 

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.
Page 17 GAO-05-289 Environmental Justice and Clean Air Rules

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. counties7

 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.

7

EPA’s analysis covered counties and parishes.
Page 18 GAO-05-289 Environmental Justice and Clean Air Rules

Table 3: Estimated Potential Changes in Selected Emissions in 2007 Resulting from 

the Gasoline Rule in Counties with Refineries

Source: GAO analysis of EPA data.

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.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.

Estimated potential changes Number of counties

Increased emissions of one or both emissions

 Increased emissions of both emissions 10

 Increased emissions of only one emission 16

Subtotal 26

Decreased emissions of both emissions 60

Total 86

8

EPA, Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control 

Requirements: Response to Comments, EPA 420-R-99-024, December 1999.
Page 19 GAO-05-289 Environmental Justice and Clean Air Rules

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.”
Page 20 GAO-05-289 Environmental Justice and Clean Air Rules

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 comments9

 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 

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.
Page 21 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 22 GAO-05-289 Environmental Justice and Clean Air Rules

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.10 The preamble to one 

rule stated explicitly that it would not create an environmental justice 

issue.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 

10Of 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.

11The preamble to a rule contains additional text that explains the rationale behind a 

proposed or final rule.
Page 23 GAO-05-289 Environmental Justice and Clean Air Rules

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.
Page 24 GAO-05-289 Environmental Justice and Clean Air 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 
Page 25 GAO-05-289 Environmental Justice and Clean Air Rules

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. 
Page 26 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Page 27 GAO-05-289 Environmental Justice and Clean Air Rules

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 http://www.gao.gov.
Page 28 GAO-05-289 Environmental Justice and Clean Air Rules

If you or your staff have any questions about this report, please contact me 

at (202) 512-3841 or 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,

John B. Stephenson

Director, Natural Resources

and Environment
Page 29 GAO-05-289 Environmental Justice and Clean Air Rules

Appendix I

Information about the Three Final Clean Air Apendxies

Rules That We Examined ApendxiI

Source: The Federal Register and EPA.

Short title used in 

this report Gasoline rule Diesel rule Ozone implementation rule

Full title Control of Air Pollution from 

New Motor Vehicles: Tier 2 

Motor Vehicle Emissions 

Standards and Gasoline Sulfur 

Control Requirements

Control of Air Pollution from New 

Motor Vehicles: Heavy-Duty Engine 

and Vehicle Standards and Highway 

Diesel Fuel Sulfur Control 

Requirements

Final Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality 

Standard—Phase 1

EPA summary of the 

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.

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.

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. 

Final rule in the 

Federal Register

65 Fed. Reg. 6698

02/10/2000

66 Fed. Reg. 5002

01/18/2001

69 Fed. Reg. 23951

04/30/2004

Response to 

comment date

12/20/1999 12/21/2000 04/15/2004

Final economic 

review date

12/1999 12/2000 04/2004

Proposed rule in the 

Federal Register

64 Fed. Reg. 26004

05/13/1999

65 Fed. Reg. 35430

06/02/2000

68 Fed. Reg. 32802

06/02/2003

Date of economic 

review for proposed 

rule

04/1999 05/2000 04/2003

Workgroup initiated 

date

08/19/1998 09/01/1999 08/21/2001
Page 30 GAO-05-289 Environmental Justice and Clean Air Rules

Appendix II

EPA’s Consideration of Environmental Justice 

in the Drafting of Three Proposed Clean Air 

Rules ApendxiI

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.1

• The January 2004 mercury proposed rule, which proposed two methods 

for regulating mercury emissions from certain power plants.2

• 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.3

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.

1

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.

2

69 Fed. Reg. 4652 (2004). EPA issued a final mercury rule in March 2005. 70 Fed. Reg. 28606.

3

69 Fed. Reg. 4566 (2004). EPA issued a final rule on the interstate rule in March 2005. 70 

Fed. Reg. 25162.
Appendix II

EPA’s Consideration of Environmental 

Justice in the Drafting of Three Proposed 

Clean Air Rules

Page 31 GAO-05-289 Environmental Justice and Clean Air Rules

Table 4: Information about Three Proposed Clean Air Rules

Source: The Federal Register.

Short title Mercury rulea

New Source Review routine 

maintenance

Clean Air Interstate Rule

(interstate rule)

Full title 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

Prevention of Significant 

Deterioration (PSD) and Nonattainment New Source Review 

(NSR): Routine Maintenance, Repair 

and Replacement

Rule to Reduce Interstate Transport 

of Fine Particulate Matter and Ozone 

(Interstate Air Quality Rule) 

EPA summary of 

the rule

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 coalfired 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.

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.

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.

Proposed rule in 

the Federal 

Register

69 Fed. Reg. 4652

01/30/2004

67 Fed. Reg. 80290

12/31/2002

69 Fed. Reg. 4566

01/30/04

Date of economic 

review for 

proposed rule

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. 

 11/2002 01/2004

Workgroup 

initiated date 

04/06/2001 02/11/2002 Prior to 08/30/2003
Appendix II

EPA’s Consideration of Environmental 

Justice in the Drafting of Three Proposed 

Clean Air Rules

Page 32 GAO-05-289 Environmental Justice and Clean Air Rules

a

The proposed rule also addressed nickel emissions. A supplemental notice of proposed rulemaking 

was published in March 2004.

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.
Appendix II

EPA’s Consideration of Environmental 

Justice in the Drafting of Three Proposed 

Clean Air Rules

Page 33 GAO-05-289 Environmental Justice and Clean Air Rules

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.4

 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.

4

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.
Page 34 GAO-05-289 Environmental Justice and Clean Air Rules

Appendix III

Scope and Methodology ApendxiI

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.
Page 35 GAO-05-289 Environmental Justice and Clean Air Rules

Appendix IV

Comments from the Environmental 

Protection Agency ApendxiIV

Note: GAO comments 

supplementing those in 

the report text appear 

at the end of this 

appendix.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 36 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 1.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 37 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 2.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 38 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 3.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 39 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 4.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 40 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 5.

See comment 6.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 41 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 7.

See comment 8.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 42 GAO-05-289 Environmental Justice and Clean Air Rules
Appendix IV

Comments from the Environmental 

Protection Agency

Page 43 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 9.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 44 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 10.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 45 GAO-05-289 Environmental Justice and Clean Air Rules

See comment 11.
Appendix IV

Comments from the Environmental 

Protection Agency

Page 46 GAO-05-289 Environmental Justice and Clean Air Rules
Appendix IV

Comments from the Environmental 

Protection Agency

Page 47 GAO-05-289 Environmental Justice and Clean Air Rules
Appendix IV

Comments from the Environmental 

Protection Agency

Page 48 GAO-05-289 Environmental Justice and Clean Air Rules
Appendix IV

Comments from the Environmental 

Protection Agency

Page 49 GAO-05-289 Environmental Justice and Clean Air Rules

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, 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 
Appendix IV

Comments from the Environmental 

Protection Agency

Page 50 GAO-05-289 Environmental Justice and Clean Air Rules

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 
Appendix IV

Comments from the Environmental 

Protection Agency

Page 51 GAO-05-289 Environmental Justice and Clean Air Rules

on the latter but not the former, and we have revised our report 

accordingly. 
Page 52 GAO-05-289 Environmental Justice and Clean Air Rules

Appendix V

GAO Contact and Staff Acknowledgments ApendxiV

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)
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