Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules
Published: 2005-07-25T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: Low-income and minority populations are disproportionately exposed to  air pollution and other environmental risks, according to Environmental  Protection Agency (EPA) studies. For example, a 1991 study cited by EPA  found that African Americans and Hispanics were more likely to be  exposed to ground-level ozone and several other air pollutants known to  cause health problems. In 1992, EPA established an office to address  environmental pollution affecting racial minorities and low-income  communities. Efforts to identify and address disproportionately high and  adverse impacts on specific populations and communities are commonly  referred to under the term “environmental justice.”
In 1994, President Clinton issued Executive Order 12898, which stated that  EPA and other federal agencies, to the greatest extent practicable and  permitted by law, shall make achieving environmental justice part of their  missions by identifying and addressing, as appropriate, the  disproportionately high and adverse human health or environmental effects  of their programs, policies, and activities on minority populations and low- income populations in the United States. To implement the executive order,  EPA developed guidance for incorporating environmental justice into  specific program areas. One such program area is EPA’s implementation  and enforcement of the Clean Air Act, a comprehensive law intended, in  part, to control emissions that have been found to harm human health. To  implement the act, EPA—among other things—develops, implements, and  enforces rules on the amount of various pollutants that may be emitted by  mobile sources (such as cars, trucks, and other vehicles) and stationary  sources (such as power plants and refineries).
According to EPA guidance, environmental justice and other specific  factors are to be considered at various points during the development of a  rule. For example, to draft a proposed rule, EPA establishes a workgroup,  comprised of officials from relevant offices within the agency, to consider  various options and typically recommend one option to managers. EPA  guidance, issued in 1994 and 2004, reinforced Executive Order 12898 by  suggesting that environmental justice be considered early in the  rulemaking process. Also, the Clean Air Act, other statutes, and executive  orders require EPA to prepare an economic review of the proposed rule’s  costs and other impacts. EPA guidance specifies that this review will  consider the rule’s potential total costs to society (which could include  adverse health effects due to exposure to pollutants), including the  distribution of those costs among various social and economic groups.  Finally, after the approval of all relevant offices within EPA, the proposed  rule is published in the Federal Register, and a public comment period is  opened to solicit formal public comment on the proposed rule. Further, the  Clean Air Act requires EPA to allow the submission of public comments,  and the final rule must be accompanied by a response to each of the  significant comments. Significant public comments that raise  environmental justice issues would be addressed along with any other  significant public comments on the proposed rule. After considering formal  public comments and sometimes changing the economic review and the  rule as a result, EPA publishes the final rule in the Federal Register and on  the Internet. After a specified time period, the rule goes into effect.
In this context, you asked us to determine how EPA considered  environmental justice in both drafting and finalizing significant clean air  rules between fiscal years 2000 and 2004. Drafting the rule included initial  reports flagging potential issues for senior management, activities of the  workgroups that considered regulatory options, the economic review of  the proposed rule’s costs, and making the proposed rule available for  public comment. Finalizing the rule included addressing public comments,  revising the economic review, and publication of the final review in the  Federal Register.
To address these objectives, we analyzed EPA documents and held  discussions with EPA officials in Washington, D.C.; Anne Arbor, Michigan;  and Research Triangle Park, North Carolina, relating to three final clean air  rules that were considered significant by EPA and the Office of  Management and Budget (OMB) and were finalized between October 1,  1999, and September 30, 2004. In order to identify the rules we would  review in detail, we initially analyzed a database of clean air rules finalized  between fiscal years 2000 and 2004. We then selected rules for review (1)  that involved the EPA Administrator’s office or extensive cross-agency  involvement and (2) that were sent to OMB for review. Rules are sent to  OMB for review if their expected annual costs or benefits exceed $100  million, if they raise novel legal or policy issues, or if they may interfere  with actions undertaken by another federal agency or a state, local, or  tribal government. We examined two mobile source rules: one rule  addressed, among other things, the sulfur content of gasoline used in cars  and similar vehicles (the gasoline rule, promulgated in 2000), and a second  rule addressed, among other things, the sulfur content of diesel fuel used in  trucks and similar vehicles (the diesel rule, promulgated in 2001). We also  examined the rule for implementing the 8-hour ozone national ambient air  quality standard (the ozone implementation rule, promulgated in 2004). A  more detailed description of these rules can be found in appendix I. We  also selected these rules because, of the 19 clean air rules finalized during  this period that met our criteria, they are the only 3 that included the terms  “environmental justice” or “Executive Order 12898” in the final rule. We  believed that compared with the other 16 rules, these 3 were more likely to  include an in-depth consideration of environmental justice by EPA.  Therefore, these 3 rules are not likely to be representative of all 19 rules.
In addition, we are including information in this report on how EPA  considered environmental justice in drafting three proposed rules of  substantial congressional interest, detailed in appendix II. We did not  review how EPA considered environmental justice when finalizing these  rules because they had not been finalized when we completed our initial  fieldwork. Additional details about our scope and methodology are  provided in appendix III. We conducted our work between July 2004 and  May 2005 in accordance with generally accepted government auditing  standards.
subsections: section_title: Background
paragraphs: 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.
In addition, EPA sets primary national ambient air quality standards for six  principal pollutants that harm human health and the environment. These  standards are to be set at a level that protects human health with an  adequate margin of safety, which, according to EPA, includes protecting  sensitive populations, such as the elderly and people with respiratory or  circulatory problems. These six pollutants include the five types of  emissions listed in table 1, along with ozone, which is not emitted directly  but is formed when nitrogen oxides and volatile organic compounds react  in the presence of sunlight. According to EPA, in 2003, about 161 million  people (about 56 percent of the population) lived in areas where the  concentration of ozone met the standard; about 120 million people (41  percent) lived in areas where the concentration of particulate matter met  EPA’s standard; and about 168 million people (58 percent) lived in areas  where the concentrations of the other four pollutants met the standards.
EPA has a multistage process for developing clean air and other rules that it  considers high priority (the top two of three priority levels) because of the  expected involvement of the Administrator, among other factors. Initially, a  workgroup chair is chosen from the lead program office, such as the Office  of Air and Radiation (Air Office) in the case of clean air rulemaking. The  workgroup chair assigns the rule one of the three priority levels, and EPA’s  top management makes a final determination of the rule’s priority. The  priority level assigned depends on such factors as the level of the  Administrator’s involvement and whether more than one office in the  agency is involved. The gasoline, diesel, and ozone implementation rules  were classified as high-priority rules on the basis of these factors. In  addition, these rules were considered significant because they had an  effect of $100 million or more a year on the economy, or they raised novel  legal or policy issues and, therefore, were required under Executive Order  12866 to be sent to OMB. Among other things, an OMB review is  conducted to ensure that the rule is consistent with federal laws and the  President’s priorities, including executive orders.
EPA guidance identifies environmental justice as one of many factors to be  considered early in the rulemaking process. In 1994, the EPA Administrator  established guidance for rulemaking and identified 11 characteristics for  “quality actions” in rulemaking. Among these characteristics were (1)  consistency with legal requirements and national policies, which would  include Executive Order 12898, and (2) adherence to the Administrator’s  seven priorities, which included environmental justice. According to the  guidance, managers must consider all 11 areas early on and be explicit  about any trade-offs made among them.
For high-priority rules, the workgroup chair is responsible for, among other  things, ensuring that work gets done and the process is documented. Other  workgroup members are assigned from the lead program office and, in the  case of the two highest priority rules, from other offices. The workgroup  may conduct such activities as (1) collaborating to prepare a plan for  developing the rule, (2) seeking early input from senior management, (3)  consulting with stakeholders, (4) collecting data and analyzing issues, (5)  considering various options, and (6) recommending usually one option to  managers. In addition, an economist (who typically participates in the  workgroup) prepares an economic review of the proposed rule’s costs to  society. According to EPA, the “ultimate purpose” of an economic review is  to inform decision makers of the social welfare consequences of the rule.  Finally, after the approval of all relevant offices within EPA, the proposed  rule is published in the Federal Register, the public is invited to comment  on it, and EPA considers the comments. Comments may address any aspect  of the proposed rule, including whether environmental justice issues are  raised and appropriately addressed in the proposed rule. Sometimes, prior  to the publication of the proposed rule, EPA publishes an Advanced Notice  of Proposed Rulemaking in the Federal Register. The notice provides an  opportunity for interested stakeholders to provide input to EPA early in the  process, and the agency takes such comments into account to an  appropriate extent, according to EPA.
In finalizing a rule, EPA is required to provide a response to all significant  public comments, including those on environmental justice, and to prepare  a final economic review. After these tasks are completed, the rule, if it is  significant, is sent to OMB for approval. Once OMB approves the final rule  and the Administrator signs it, it is published in the Federal Register. After  a specified time period, the rule goes into effect.
Within EPA, the Air Office is primarily responsible for implementing the  Clean Air Act, as amended. Within that office, the Office of Air Quality  Planning and Standards is primarily responsible for developing the majority  of new rules for stationary sources resulting from the act. Also within the  Air Office, the Office of Transportation and Air Quality has primary  responsibility for developing rules and other programs to control mobile  source emissions. The Office of Environmental Justice, located within  EPA’s Office of Enforcement and Compliance Assurance, provides a central  point for the agency to address environmental and human health concerns  in minority communities and/or low-income communities—a segment of  the population that has been disproportionately exposed to environmental  harms and risks, according to the office’s Web site. The office works with  EPA’s program and regional offices to ensure that the agency considers  environmental justice.
section_title: EPA Generally Devoted Little Attention to Environmental Justice in Drafting Three Rules
paragraphs: 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.
subsections: section_title: Initial Form Prepared for Senior Management Did Not Address Environmental Justice
paragraphs: 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.
section_title: Lack of Guidance and Training May Have Limited Workgroups’ Ability to Identify Potential Environmental Justice Concerns
paragraphs: EPA officials had differing recollections about the extent to which the three  workgroups considered environmental justice. The chairs of the  workgroups for the two mobile source rules told us that they did not recall  any specific time when they considered environmental justice during the  rules’ drafting, but other EPA officials said environmental justice was  considered. The chair of the ozone workgroup told us that his group did  consider environmental justice, but that he could not provide any specifics  about this.
Because 3 to 7 years have passed since these workgroups were formed and  the workgroup members may not have remembered discussions of  environmental justice during the rules’ drafting, we asked them to provide  us with any documentation that may have indicated that environmental  justice was considered. Members of the two mobile source workgroups  told us that they did not have any such documents. The chair of the ozone  workgroup provided us with a copy of a document, prepared by the  workgroup, which identified issues needing analysis. 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.
section_title: Economic Reviews Did Not Always Provide Decision Makers with an Environmental Justice Analysis
paragraphs: EPA is required under the Clean Air Act, other statutes, and executive  orders to prepare an economic review for proposed rules, and the type of  economic review to be prepared depends on the rule’s impact on the  economy. Specifically, rules that are expected to have an effect of $100  million or more a year—like the two mobile source rules—require a more  detailed “economic analysis.” Other rules—like the ozone implementation  rule—still must conduct a less detailed “economic impact assessment.”  According to EPA, the “ultimate purpose” of these reviews is to inform  decision makers of the social consequences of the rules. According to EPA  guidance, both types of review are to discuss the rule’s cost and the  distribution of those costs across society. According to EPA officials, both  types of review consider environmental justice. The more detailed reviews,  or economic analyses, also are to discuss the rule’s benefits and equity  effects, which include environmental justice.
For all three rules, an economic review of their economic costs and certain  other features was prepared for decision makers before the proposed rules  were published. However, the economic analyses of the two mobile source  rules did not include an analysis of environmental justice. The supervisor  of the economists who prepared the analyses said that environmental  justice was not discussed in the analyses due to an oversight. However, he  also said (and a senior policy advisor in the Air Office concurred) that EPA  has not agreed upon the complete list of data that would be needed to  perform an environmental justice analysis. Further, he said that EPA does  not have a model with the ability to distinguish localized adverse impacts  for a specific community or population.
Although the economic impact assessment of the ozone implementation  rule did discuss environmental justice, it inconsistently portrayed some  information relevant to the rule’s potential environmental justice impacts.  Specifically, the assessment stated that EPA determined the rule would not  create environmental justice issues, based on its analysis of the 1997 rule  that established the 8-hour ozone national ambient air quality standard.  However, the earlier rule referred to its economic review, which stated it  was not possible to rigorously consider the potential environmental justice  effects of the rule because the states were responsible for its  implementation. The inability of EPA to rigorously consider environmental  justice in the 1997 rule does not seem to support EPA’s statement that there  were no environmental justice issues raised by the ozone implementation  rule. Also, the economic impact assessment did not address the potential  environmental justice effects of a certain provision, which EPA stated 2  months later, in the proposed rule, might raise environmental justice  issues. The provision would attempt to reduce vehicle use generally  throughout a large metropolitan area by encouraging mixed-use growth—a  combination of industrial, retail, and residential development—in portions  of that metropolitan area, so transportation would be concentrated there.  According to EPA, concentrating vehicle emissions and stationary  emissions might create environmental justice concerns for low-income  residents.
section_title: All Three Proposed Rules Mentioned Environmental Justice, but the Discussion Appeared Contradictory in One Case
paragraphs: 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.
The publication of a proposed rule gives EPA an opportunity to explain  how it considered environmental justice in the rule’s development.  Although all three rules mentioned environmental justice when they were  published in the Federal Register, they differed in the extent to which they  discussed this issue and, in one case, the discussion appeared  contradictory. In the proposed gasoline rule, EPA stated that environmental  justice is an important economic dimension to consider, but it did not  describe whether it was considered or whether the proposed rule raised  any environmental justice issues. In the proposed diesel rule, in a section  on environmental justice, EPA stated that the rule would improve air  quality across the country and could be expected to mitigate environmental  justice concerns about concentrations of diesel emissions. More  particularly, EPA stated that health benefits could be expected for  populations near bus terminals and commercial distribution centers, where  diesel truck traffic would be concentrated, because pollutants in diesel  emissions would be reduced. The treatment of environmental justice in the  proposed ozone implementation rule was unclear because two sections of  the rule appeared to contradict each other. In one section, EPA stated that  it did not believe the rule would raise any environmental justice issues, but  in another section, it specifically invited comments on an option to  concentrate commercial, industrial, and residential growth, which it said  “may raise environmental justice concerns.”
section_title: EPA Considered Environmental Justice to Varying Degrees in Finalizing Three Rules
paragraphs: 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.
subsections: section_title: EPA Generally Responded to Public Comments Pertaining to Environmental Justice
paragraphs: 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. 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.
subsections: section_title: The Gasoline Rule
paragraphs: Commenters from the petroleum industry, environmental groups, and  elsewhere stated that the proposed gasoline rule raised environmental  justice concerns. For example, one commenter representing environmental  justice groups stated that the proposed rule was “completely devoid of  environmental justice analysis,” and that the national benefits of the rule  were derived from transferring broadly distributed emissions into areas  around refineries. Also, a representative of a petroleum company stated  that EPA needed to address environmental justice issues. EPA responded  by taking two actions. It (1) analyzed the rule’s potential impact on  communities around refineries and (2) sought stakeholders’ views on  environmental justice and other issues relating to refinery emissions.
First, EPA estimated how two types of refinery and vehicle emissions  would change, as a result of the rule, in 86 U.S. counties 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.
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.
When asked whether this analysis appeared to confirm concerns about the  rule’s potential environmental justice impacts, EPA officials told us that the  analysis was limited and overstated the net increase in refinery emissions  in two ways. First, according to EPA officials, the analysis did not consider  the actions that refiners would likely take to offset increases in emissions  because of the new rule; EPA assumed that they would seek to reduce  emissions in other ways to avoid additional regulation at the state level.  EPA said it believed these actions would limit the expected increases in  refining emissions. Second, EPA analyzed the effect of the rule only for  2007. EPA officials said they believed that the benefits of the rule would  increase after that year, as new (and cleaner) vehicles increasingly  replaced older (and less clean) vehicles.
We note two other ways in which the analysis was limited in estimating the  potential effects on communities near refineries. First, EPA did not ask  refiners about the rule’s impact on their output of these two emissions, nor  did EPA perform an analysis to determine how the rule would impact  individual refiners’ emissions of these two substances. Instead, EPA  assumed that emissions would increase by the same proportion at each  refinery—nitrogen oxides, by 4.5 percent, and volatile organic compounds,  by 3.32 percent—although individual refineries increases could be lesser or  greater than these percentages. Secondly, EPA did not estimate the rules’  impact on other pollutants, such as particulate matter and sulfur dioxide,  which might also increase as a result of the increase in refining activity  needed to comply with the rule.
EPA did not make the results of its analysis available to the public, either in  the economic review of the final rule or elsewhere in the docket, because  EPA officials told us they considered the results of the analysis too  uncertain to release to the public. However, EPA officials told us that the  analysis—along with their assumption that refineries were likely to emit  less emissions than the analysis indicated—supported their belief that the  rule would be unlikely to cause environmental justice impacts. In addition,  these officials said they believed that, if the rule did create environmental  justice issues, they could be best addressed by the state or local  governments. This is because any refiners needing to increase their  emissions to comply with the gasoline rule would have to submit specific  plans to such governments during the permitting process.
Second, EPA believed that environmental justice issues would be best  addressed during the permitting process, and EPA hired a contractor to  solicit stakeholders’ potential concerns about this issue. In September  1999, the contractor interviewed individuals from EPA, environmental  organizations, the oil refining industry, and state agencies responsible for  regulating refinery emissions to ascertain their views. In December 1999,  the contractor again sought stakeholders’ views, focusing largely on local  environmental groups, because few of them were interviewed in  September. In December, local environmental groups stated that they did  not trust the state environmental agencies, and that they perceived that  EPA had “talked exclusively with industry representatives prior to  developing the proposed rule, but not to the local environmental  organizations.” In addition, these groups said that they did not want “any  added emissions to their air, even if there will be a net benefit to the  nation’s environment.”
In response to the stakeholders’ concerns, the contractor recommended  that EPA develop permitting teams, provide information about the rule, and  enhance community involvement. The contractor said that these  recommendations would improve the permitting process for all  stakeholders by addressing issues specific to each permit, potentially  including environmental justice. EPA said that it would implement the  contractor’s recommendations for improving the permitting process to deal  with environmental justice issues.
EPA stated that it believed that environmental justice issues could be dealt  with during the permitting process at the state or local level, and officials  told us that EPA has limited direct authority over permitting because most  permitting occurs at the state level. Several groups commented that the  states, not EPA, “act as the permitting authorities” over refineries. EPA said  it agreed that states generally have primary authority over permitting.  Further, Executive Order 12898 does not apply to state or local permitting  authorities, and absent specific state or local law, state and local  governments have no obligation to consider environmental justice when  issuing permits.
section_title: The Diesel Rule
paragraphs: In response to an Advanced Notice of Proposed Rulemaking, several  commenters expressed concern that the diesel rule would lead to increased  refinery emissions of regulated pollutants. They specifically stated that  EPA should address the potential for increased emissions in its economic  analysis of the rule. EPA did not respond to these comments and did not  factor the potential increase in regulated pollutants into its final economic  analysis. In commenting on the proposed rule, several petroleum  companies stated that changes they would need to make to comply with  the rule might increase emissions and, therefore, lead citizens to raise  environmental justice issues. EPA responded that it did not believe that  complaints would delay the refineries’ permitting applications. However,  EPA did not analyze the rule for environmental justice impacts, such as  increases in air emissions in communities surrounding refineries. EPA  officials told us that they did not perform such an analysis because they  believed that they had sufficiently analyzed these issues in the context of  the gasoline rule.
section_title: The Ozone Implementation Rule
paragraphs: 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.
section_title: Final Economic Reviews Generally Did Not Provide Decision Makers with an Environmental Justice Analysis
paragraphs: After taking into consideration public comments, the agency prepares a  final economic review. EPA guidance indicates that this final economic  review, like the proposed economic review, should identify the distribution  of the rule’s social costs across society. After considering public comments,  EPA did prepare a final economic review for all three rules, but, for two of  the three rules, environmental justice was not discussed.
Even after the public expressed concerns about environmental justice, the  final economic analysis of the gasoline rule, like the analysis of the  proposed rule, did not discuss environmental justice. According to the  supervisory economist, not discussing environmental justice in the final  analysis was an oversight.
Similarly, the final economic analysis of the diesel rule, like the analysis of  the proposed rule, did not discuss environmental justice. Again, according  to the supervisory economist, not discussing environmental justice in the  final analysis was an oversight. As a result, EPA did not incorporate the  public’s suggestions that EPA include the cost of increased refinery  emissions in its economic analysis.
For the ozone implementation rule, EPA did not prepare a new economic  impact assessment for its final version. Instead, it issued an addendum to  the proposed assessment and stated that it considered the addendum and  the proposed assessment to constitute a final economic impact  assessment. In addition, because EPA decided to finalize the ozone  implementation rule in two phases, the addendum addressed only the part  of the rule that was finalized, not the entire proposed rule. Thus, the  assessment of the final rule did not change the conclusion of the  assessment of the proposed rule, namely that the ozone implementation  rule did not create any environmental justice issues.
section_title: EPA Officials Believed That the Three Final Rules Did Not Create Environmental Justice Issues
paragraphs: 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. The preamble to one  rule stated explicitly that it would not create an environmental justice  issue. The other two rules did not explicitly state whether they would  create an environmental justice issue, although the preambles to both rules  discussed the mitigation of potential environmental justice effects. EPA  officials told us that they believed that these rules did not create an  environmental justice issue.
In the preamble to the final ozone implementation rule, as in the proposed  rule, EPA stated that the rule did not raise any environmental justice issues.  The agency supported its statement by explaining that the rule was  implementing a standard, developed in 1997, that had already taken  environmental justice into account.
In the preamble to the final gasoline rule in 2000, EPA stated that areas  around the refineries would receive an environmental benefit from the rule,  and that emissions at some refineries might increase even after installing  equipment to comply with emissions controls in the Clean Air Act. It  concluded that the increases in refinery emissions would be very small in  proportion to the decreases in vehicle emissions in the areas around  refineries. Moreover, EPA discussed its previous actions to consider  environmental justice concerns, as previously discussed, and stated that it  was committed to resolve environmental justice issues if they arose,  through additional outreach efforts to local communities and similar  means. Although the final rule did not state explicitly whether it would or  would not ultimately create an environmental justice issue, EPA officials  told us in late 2004 that, in their opinion, the rule did not create such an  issue.
Lastly, in the preamble to the final diesel rule in 2001, EPA stated that the  rule could mitigate some of the environmental justice concerns pertaining  to the heavy-duty diesel engines that often power city buses. The final rule  does not discuss any potential environmental justice issues pertaining to  impacts from increased refinery emissions on nearby communities, even  though EPA officials told us that they recognized increased refinery  emissions could have such impacts. Nevertheless, EPA officials told us in  late 2004 that they believed the rule did not create environmental justice  issues.
section_title: Conclusions
paragraphs: We found some evidence that EPA officials considered environmental  justice when drafting or finalizing the three clean air rules we examined.  During the drafting of the three rules, even when the workgroups discussed  environmental justice, their capability to identify potential concerns may  have been limited by a lack of guidance, training, and involvement of EPA’s  environmental justice coordinators. It is important that EPA thoroughly  consider environmental justice because the states and other entities, which  generally have the primary permitting authority, are not subject to  Executive Order 12898.
EPA’s capability to identify environmental justice concerns through  economic reviews also appears to be limited. More than 10 years have  elapsed since the executive order directed federal agencies, to the extent  practicable and permitted by law, to identify and address the  disproportionately high and adverse human health or environmental effects  of their programs, policies, and activities. However, EPA apparently does  not have sufficient data and modeling techniques to be able to distinguish  localized adverse impacts for a specific community. For example, EPA has  not agreed upon the complete list of data that would be needed to perform  an environmental justice analysis. This suggests that, although EPA has  developed general guidance for considering environmental justice, it has  not established specific modeling techniques for assessing the potential  environmental justice implications of any clean air rules. In addition, by not  including a discussion of environmental justice in all of the economic  reviews, EPA decision makers may not have been fully informed about the  environmental justice impacts of all the rules.
Finally, even though members of the public commented about two rules’  potential to increase refinery emissions—potential environmental justice  issues, (1) in one case, EPA did not provide a response and (2) in the other  case, it did not explain the basis for its response, such as the rationale for  its beliefs and the data on which it based its beliefs. While these may not  have been significant comments requiring a response, EPA’s public  involvement policy calls for EPA to provide responses when feasible, and  this policy does not appear to distinguish comments on Advanced Notices  of Proposed Rulemaking from comments on proposed rules.
section_title: Recommendations for Executive Action
paragraphs: 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.
section_title: Agency Comments and Our Evaluation
paragraphs: EPA’s Assistant Administrator for Air and Radiation provided comments on  a draft of this report in a letter dated June 10, 2005 (see app. IV). In  addition, he provided technical comments that we incorporated where  appropriate.
First, EPA expressed the view that its rules have resulted in better air  quality nationally. EPA said it was “disappointed” that we did not  accurately reflect its progress in achieving environmental justice with  respect to air pollution. It noted that the three rules are part of a larger  program that is making significant progress in providing cleaner air  nationwide. Second, EPA stated that in examining the agency’s process for  considering environmental justice, we asked the wrong question, and that  we should have focused on the outcome of the rulemaking process—the  rules themselves. Finally, it stated that our evidence of how it considered  environmental justice during the development of the three final rules did  not support our conclusions and recommendations, and it provided  detailed information about the efforts it took relating to environmental  justice for the three final rules.
We question the relevance of the information provided on air quality  nationally and disagree with EPA’s other two points. First, in addition to the  data we had already presented on the decrease in emissions of certain air  pollutants, EPA provided data on overall improvements in air quality,  specifically the decrease in the number of areas throughout the nation that  did not meet certain ambient air quality standards. However, because these  data provide no detail on the conditions facing specific groups—for  example, residents of areas near refineries, who might be negatively  affected by the two mobile source rules—these data are not necessarily  germane to environmental justice. Although Executive Order 12898 calls on  agencies to identify and address the disproportionately high and adverse  effects of its programs, policies, and activities on specific groups, EPA  provided no information about such groups. Also, we believe that EPA’s  statement about the effect of clean air rules on national air quality at some  level misses the point. Second, EPA suggested that it would have been  more appropriate for us to look at the outcomes of its efforts than at the  process that produced the outcomes. We agree with EPA that outcomes are  important, but it is not yet clear whether the rules we examined will  address environmental justice issues effectively because the rules are being  implemented over the next several years. It is also important to examine  the process that led to the rules—as we did. The various process steps are  intended to help ensure that EPA’s activities during the many phases of  drafting and finalizing all rules are efficiently and effectively focused on  achieving the desired outcomes.
Third, although EPA stated that our evidence did not support our  conclusions and recommendations, it did not challenge the accuracy of the  information we provided on how it considered environmental justice  during the many phases of developing the three final rules discussed in the  body of our report and the three proposed rules discussed in appendix II.
While it provided detailed information on certain activities and the  rationale for undertaking them, our report already discussed nearly all of  these activities. For example, EPA noted at length its efforts, after drafting  the gasoline rule, to hold discussions with environmental justice and other  groups on issues relating to permits that refiners would need if they  increased their emissions to comply with the rule. We already  acknowledged these efforts in our report. However, EPA’s efforts at this  stage do not mitigate the fact that it devoted little attention to  environmental justice up to that point, nor the fact that discussions with  affected groups, while beneficial, do not offset the effects of possible  increases in refinery emissions on these groups. EPA is essentially relying  on state and local governments to deal with environmental justice concerns  as they implement the gasoline and diesel rules at the refinery level, even  though the executive order does not apply to state or local governments,  and, absent specific state or local law, they have no obligation to consider  environmental justice when issuing permits. In addition, the three final  rules were selected in part because they mentioned environmental justice  and should have showcased EPA’s efforts to consider environmental  justice. Thus, we continue to believe that the evidence we provided  supports our conclusions and recommendations.
Finally, aside from its general statement that the evidence we presented  does not support our conclusions and recommendations, EPA generally did  not respond to our four recommendations. We continue to believe that all  of them are still warranted. With respect to our recommendation that  workgroups devote attention to environmental justice while developing  clean air rules, EPA stated that it “devoted appropriate attention to  environmental justice issues” in the three final rules. EPA’s guidance  suggests that environmental justice be considered both at the beginning of  process (when the rules are drafted) and at the end of the process (when  they are finalized). However, nearly all of the attention EPA described came  at the end of the process—after receiving public comments.
EPA responded in part to our recommendation on the need to provide  guidance and training to workgroup members and the need to involve  environmental justice coordinators. EPA did not provide any information  that would refute the finding on the lack of guidance and training, for  example, by bringing to our attention any guidance or training that it  provides to workgroup members. However, EPA noted that an  environmental justice coordinator “was heavily involved” in one of the  three final rules and became an “ad hoc member” of the workgroup for the  gasoline rule “around the time the rule was proposed.” From EPA’s  comment, it is clear that the coordinator became involved only at the end  of the process of drafting this rule (i.e., “around the time the rule was  proposed”). Further, EPA did not mention whether a coordinator was  involved at all in the other two final rules, nor in the three proposed rules.
EPA did not comment specifically on our recommendation on the need to  improve assessments of potential environmental justice impacts in  economic reviews or provide any information that would refute the finding  that led to it. EPA responded in part to our recommendation on the need to  respond fully, when feasible, to public comments on environmental justice.  Specifically, it noted that it did not respond to comments on the Advanced  Notice of Proposed Rulemaking on the diesel rule, and that it is has no legal  or policy obligation to respond to comments on an Advanced Notice of  Proposed Rulemaking. Although we understood that EPA’s public  involvement policy calls for the agency to include a response to all  comments when feasible, we revised our report to reflect EPA’s comment  that it had no obligation in such instances.
As arranged with your office, we plan no further distribution of this report  until 15 days after the date of this letter, unless you publicly announce its  contents earlier. At that time, we will send copies of this report to  interested congressional committees and the EPA Administrator. We will  make copies available to others upon request. This report will also be  available at no cost on GAO’s Web site at http://www.gao.gov.
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.
section_title: Information about the Three Final Clean Air Rules That We Examined
paragraphs: 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 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.
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 treats vehicles and  fuels as a system, combining  requirements for cleaner  vehicles with requirements for  lower levels of sulfur in  gasoline.
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.
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.
section_title: EPA’s Consideration of Environmental Justice in the Drafting of Three Proposed Clean Air Rules
paragraphs: 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.
The January 2004 mercury proposed rule, which proposed two methods  for regulating mercury emissions from certain power plants.
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.
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.
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.
subsections: section_title: Workgroups Devoted Little Attention to Environmental Justice
paragraphs: 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.
section_title: Little Attention Was Devoted to Environmental Justice in the Economic Reviews
paragraphs: 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. 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.
section_title: Proposed Rules Did Not Discuss Environmental Justice
paragraphs: 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.
section_title: Scope and Methodology
paragraphs: 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.
section_title: Comments from the Environmental Protection Agency
paragraphs: The following are our comments on the Environmental Protection Agency’s  letter dated June 10, 2005.
subsections: section_title: GAO Comments
paragraphs: 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  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  rule was  published.” Thus, it appears that in neither case were they substantively  involved in drafting this rule. We added language in the report clarifying  the discussion of the process. 10. As EPA noted, it devoted resources to seeking public involvement while  finalizing the gasoline rule. Accordingly, we changed our  characterization of EPA’s efforts in finalizing the three rules.  11. EPA’s public involvement policy provides that it will, to the fullest  extent possible, respond to public comments. We did not see a  distinction in the policy between comments on Advanced Notices of  Proposed Rulemaking and comments on proposed rulemakings.  However, EPA interprets its policy as requiring a response to comments  on the latter but not the former, and we have revised our report  accordingly.
section_title: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: 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.