Environmental Justice: Measurable Benchmarks Needed to Gauge EPA 
Progress in Correcting Past Problems (25-JUL-07, GAO-07-1140T).  
                                                                 
A 1994 Executive Order sought to ensure that minority and	 
low-income populations are not subjected to disproportionately	 
high levels of environmental risk. Studies have shown that these 
groups are indeed disproportionately exposed to air pollution and
other environmental and health problems. The Order sought to	 
address the problem by requiring EPA and other federal agencies  
to make achieving environmental justice part of their missions.  
In July 2005, GAO issued a report entitled, Environmental	 
Justice: EPA Should Devote More Attention to Environmental	 
Justice When Developing Clean Air Rules (GAO-05-289). Focusing on
three specific rules for detailed study, the report identified a 
number of weaknesses in EPA's approach to ensuring that 	 
environmental justice is considered from the early stages of rule
development through their issuance. The report made several	 
recommendations, to which EPA replied in an August 24, 2006	 
letter. GAO also met recently with cognizant EPA staff to obtain 
updated information on the agency's responses to these		 
recommendations. In this testimony, GAO (1) summarizes the key	 
findings of its 2005 report, (2) outlines its recommendations to 
EPA and EPA's August 2006 responses, and (3) provides updated	 
information on subsequent EPA actions.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-07-1140T					        
    ACCNO:   A73286						        
  TITLE:     Environmental Justice: Measurable Benchmarks Needed to   
Gauge EPA Progress in Correcting Past Problems			 
     DATE:   07/25/2007 
  SUBJECT:   Air pollution					 
	     Air pollution control				 
	     Disadvantaged persons				 
	     Environmental law					 
	     Environmental monitoring				 
	     Environmental policies				 
	     Environmental protection				 
	     Executive orders					 
	     Federal regulations				 
	     Health hazards					 
	     Minorities 					 
	     Ozone						 
	     Policy evaluation					 
	     Pollution monitoring				 
	     Regulatory agencies				 

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GAO-07-1140T

   

     * [1]Background
     * [2]EPA Generally Devoted Little Attention To Environmental Just
     * [3]GAO's Recommendations and EPA's Response
     * [4]EPA's Progress in Responding to Our Recommendations
     * [5]Concluding Observation
     * [6]Contacts and Acknowledgements

          * [7]Order by Mail or Phone

Testimony

Before the Subcommittee on Superfund and Environmental Health, Committee
on Environment and Public Works, U.S. Senate

United States Government Accountability Office

GAO

For Release on Delivery
Expected at 2:00 p.m. EDT
July 25, 2007

ENVIRONMENTAL JUSTICE

Measurable Benchmarks Needed to Gauge EPA Progress in Correcting Past
Problems

Statement of John B. Stephenson, Director
Natural Resources and Environment

GAO-07-1140T

Madam Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss the Environmental Protection
Agency's (EPA) consideration of environmental justice, particularly as it
has been used to develop clean air rules. According to EPA studies,
low-income and minority populations are disproportionately exposed to air
pollution and other environmental risks. 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 of environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.^1

To implement the order, EPA developed guidance for incorporating
environmental justice into its programs, such as the enforcement of the
Clean Air Act, which is intended in part, to control emissions that harm
human health. A key to ensuring that environmental justice is sufficiently
accounted for in agency decisions and operations is that it be considered
at each point in the rulemaking process--including the point when agency
workgroups typically consider regulatory options; perform economic
analyses of proposed rules' costs; make proposed rules available for
public comment; and finalize them in advance of their implementation.

My testimony today is based largely on our 2005 report,^2 which
recommended that EPA devote more attention to environmental justice when
developing clean air rules. In addition, we met with cognizant EPA staff
to understand what actions the agency has taken since the report's
issuance to improve its treatment of environmental justice issues during
its air rulemaking process.

Our report examined how EPA considered environmental justice during the
drafting of these air rules (including activities of the workgroups that
typically consider regulatory options, the economic review of the rules'
costs, and the manner in which proposed rules are made available for
public comment) and their finalization (including how public comments are
addressed and how the economic review is revised). The three rules we
examined included a 2000 gasoline rule to reduce sulfur in gasoline and to
reduce emissions from new vehicles; a 2001 diesel rule to reduce sulfur in
diesel fuel and to reduce emissions from new heavy-duty engines; and a
2004 ozone implementation rule to implement a new ozone standard. My
testimony today (1) summarizes the key findings of our 2005 report, (2)
provides both the recommendations we made to EPA to address the problems
identified and EPA's written response to these recommendations in August
2006, and (3) provides updated information on pertinent EPA actions.

^1Efforts to identify and address disproportionately high and adverse
impacts on specific populations and communities are commonly referred to
under the term "environmental justice."

^2GAO, Environmental Justice: EPA Should Devote More Attention to
Environmental Justice When Developing Clean Air Rules, [8]GAO-05-289
(Washington, D.C.: July 22, 2005).

In summary:

When drafting the three clean air rules, EPA generally devoted little
attention to environmental justice. Our 2005 report concluded, for
example, that while EPA guidance on rulemaking states that workgroups
should consider environmental justice in the rule-making process, a lack
of guidance and training for workgroup members on identifying
environmental justice issues limited their ability to identify such
issues. In addition, while EPA officials stated that economic reviews of
proposed rules considered potential environmental justice impacts, the
gasoline and diesel rules did not provide decision makers with
environmental justice analyses, and EPA did not identify all the types of
data necessary to analyze such impacts. In finalizing the three rules, EPA
considered environmental justice to varying degrees although, in general,
the agency rarely provided a clear rationale for its decisions on
environmental justice-related matters. In responding to comments during
the final phase of the gasoline rule, for example, EPA asserted that the
rule would not raise environmental justice concerns, but did not publish
data and assumptions to support that conclusion.

Our report made four recommendations to help EPA ensure that environmental
justice issues are adequately identified and considered when clean air
rules are being drafted and finalized. The following includes each
recommendation and summarizes the response provided in EPA's August 24,
2006, letter to the Comptroller General and cognizant committees of the
Congress:

           o Ensure that the agency's rulemaking workgroups devote attention
           to environmental justice while drafting and finalizing clean air
           rules. Among the actions highlighted by EPA were that the Office
           of Environmental Justice was made an ex officio member of the
           Regulatory Steering Committee so that it would be aware of
           important regulations under development and participate in
           workgroups.
           o Enhance the workgroups' ability to identify potential
           environmental justice issues through such steps as (a) providing
           workgroup members with guidance and training to help them identify
           potential environmental justice problems and (b) involving
           environmental justice coordinators in the workgroups when
           appropriate. EPA responded that it would supplement its existing
           environmental justice training with additional courses to create a
           comprehensive curriculum to assist agency rule writers. In
           response to our call for greater involvement of Environmental
           Justice coordinators in workgroup activities, EPA said that as an
           ex officio member of the Regulatory Steering Committee, the Office
           of Environmental Justice would be able to keep the program
           offices' environmental justice coordinators informed about new and
           ongoing rulemakings with potential environmental justice
           implications. It said that the mechanism for this communication
           would be monthly conference calls between the Office of
           Environmental Justice and the environmental justice coordinators.
           o 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. EPA
           responded that the Office of Air and Radiation was examining ways
           to improve its air models so they could better account for the
           socioeconomic variables identified in Executive Order 12898.
           o Direct cognizant officials to respond fully, when feasible, to
           public comments on environmental justice by, for example, better
           explaining the rationale for EPA's beliefs and by providing its
           supporting data. EPA responded that it would re-emphasize the need
           to respond fully to public comments and to include in those
           responses the rationale for its regulatory approach and a
           description of its supporting data.

           Upon meeting with cognizant EPA officials on July 18, 2007, we
           learned that in the two years since our July 2005 report was
           issued, some progress has been made to incorporate environmental
           justice concerns into EPA's air rulemaking process but that
           considerably more remains to be done. For example, while the
           Office of Environmental Justice may be an ex officio member of the
           Regulatory Steering Committee, it has not participated directly in
           any air rules that have been proposed or finalized since EPA's
           August 2006 letter to us. In addition, according to EPA staff,
           some of the training courses that were planned have not yet been
           developed due to staff turnover, among other reasons. Regarding
           EPA's efforts to improve assessments of potential environmental
           justice impacts in economic reviews, agency officials said that
           their data and models have improved since our 2005 report, but
           that their level of sophistication has not reached their goal for
           purposes of environmental justice considerations. They said that
           economists within the Office of Air and Radiation are, among other
           things, continuing to evaluate and enhance their models in a way
           that will further improve consideration of environmental justice
           during rulemaking. When asked about GAO's recommendation that
           cognizant officials respond more fully to public comments on
           environmental justice, the EPA officials cited a recent rulemaking
           in which this was done; but added that they were unaware of any
           memoranda or revised guidance that would encourage more global,
           EPA-wide progress on this important issue.
			  
			  Background

           Executive Order 12898 stated that to the extent practicable and
           permitted by law, each federal agency, including the EPA,
           "...shall make achieving environmental justice part of its mission
           by identifying and addressing, as appropriate, the
           disproportionately high and adverse human health or environmental
           effects of its programs, policies, and activities on minority
           populations and low-income populations in the United States..." In
           response to the 1994 order, among other things, the EPA
           Administrator issued guidance the same year providing that
           environmental justice should be considered early in the
           rule-making process. EPA continued to provide guidance regarding
           environmental justice in the following years. For example, in
           1995, EPA issued an Environmental Justice Strategy that included,
           among other provisions, (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.

           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. However,
           the agency's program offices also play essential roles. As such,
           the key program office dealing with air quality issues is the
           agency's Office of Air and Radiation. In fulfilling its Clean Air
           Act responsibilities, the Office works with state and local
           governments and other entities to regulate air emissions of
           various substances that harm human health. It also sets primary
           national ambient air quality standards for six principal
           pollutants (carbon monoxide, nitrogen oxides, sulfur dioxide,
           particulate matter, ground level ozone, and lead) 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.

           The Office of Air and Radiation has a multistage process for
           developing clean air and other rules that it considers a high
           priority. Initially, a workgroup chair is chosen from the lead
           program office--normally the Office of Air and Radiation in the
           case of clean air rulemakings. 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. They were also deemed high priority
           because they were estimated to have an effect on the economy of at
           least $100 million per year or were viewed as raising novel legal
           and/or policy issues.^3

           For high-priority rules, the workgroup chair is primarily
           responsible for ensuring that the necessary 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. Among its key functions, the
           workgroup (1) prepares a plan for developing the rule, (2) seeks
           early input from senior management, (3) consults with
           stakeholders, (4) collects data and analyze issues, (5) analyzes
           alternative options, and (6) recommends one or more options to
           agency management. In addition, a workgroup economist typically
           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.

           After approval by 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 concerns 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 the extent it believes is appropriate.
			  
^3 President Clinton issued Executive Order 12866 on September 30, 1993,
to begin a program to reform the regulatory process and make it more
efficient. 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.

           As required by the Clean Air Act, when finalizing a rule, EPA must
           respond to each significant comment raised during the comment
           period. In addition, EPA's public involvement policy states that
           agency officials should explain how they considered the comments,
           including any change in the rule or the reason the agency did not
           make any changes. 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 takes
           effect.
			  
			  EPA Generally Devoted Little Attention To Environmental Justice
			  in Drafting Three Rules and Considered it to Varying Degrees in
			  Finalizing Them

           When drafting the three clean air rules, EPA generally devoted
           little attention to environmental justice. We found, for example,
           that while EPA guidance states that workgroups should consider
           environmental justice early in the rulemaking process, this was
           accomplished only to a limited extent. Key contributing factors
           included a lack of guidance and training for workgroup members on
           identifying environmental justice issues. In addition, while EPA
           officials stated that economic reviews of proposed rules
           considered potential environmental justice impacts, the gasoline
           and diesel rules did not provide analyses of such impacts, nor did
           EPA identify all the types of data that would have been needed to
           perform such analyses. In finalizing the three rules, EPA
           considered environmental justice to varying degrees although, in
           general, the agency rarely provided a clear rationale for its
           decisions on environmental justice-related matters.

           For the three rules we examined, concerns about whether
           environmental justice was being considered sufficiently early in
           the rulemaking process first became evident by its omission on the
           agency's "Tiering Form." Once a workgroup chair is designated to
           lead a rulemaking effort, the chair completes this key form to
           alert senior managers to potential issues related to compliance
           with statutes, executive orders and other matters. In each case,
           however, the form did not include a question regarding the rule's
           potential to raise environmental justice concerns, nor did we find
           any mention of environmental justice on the completed form.

           Beyond this omission, EPA officials had differing recollections
           about the extent to which the three workgroups considered
           environmental justice at this early stage of the rulemaking
           process. 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 while drafting the rules. Other
           EPA officials associated with these rules said environmental
           justice was considered, but provided no documentation to this
           effect. Similarly, the chair of the ozone workgroup told us that
           his group considered environmental justice, but could not provide
           any specific information. He did, however, provide a document
           stating that compliance with executive orders, including one
           related to low-income and minority populations, would be a part of
           the economic review that would take place later in the process.

           Overall, we identified three factors that may have limited the
           ability of workgroups to identify potential environmental justice
           concerns early in the rulemaking process. First, each of the three
           workgroup chairs told us that they received no guidance in how to
           analyze environmental justice concerns in rulemaking. Second, as a
           related matter, each said they received little, if any,
           environmental justice training. Two chairs did not know whether
           other members of the workgroups had received any training, and a
           third chair said at least one member did receive some training.
           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 Office of
           Air and Radiation's environmental justice coordinators--whose
           full-time responsibility is to promote environmental justice--were
           not involved in drafting any of the three rules.

           As required, an economic review of the costs, and certain other
           features, was prepared for all three rules. According to EPA
           officials, however, the economic review of the two mobile source
           rules did not include an analysis of environmental justice for
           various reasons, including the fact that EPA did not have a model
           with the ability to distinguish localized adverse impacts on a
           specific community or population. EPA's economic review of the
           2004 ozone rule did discuss environmental justice, claiming that
           the rule would not raise environmental justice concerns. However,
           it based this claim on an earlier analysis of a 1997 rule that
           established the 8-hour ozone national ambient air quality
           standard. Yet rather than indicating that the 1997 ozone rule did
           not raise environmental justice concerns, this earlier economic
           review said it was not possible to rigorously consider the
           potential environmental justice effects because the states were
           responsible for its implementation. Hence, the inability of EPA to
           rigorously consider environmental justice in the economic review
           of the 1997 rule appears to contradict EPA's subsequent statement
           that there were no environmental justice concerns raised by the
           2004 ozone implementation rule.

           In finalizing each of the three rules, EPA considered
           environmental justice to varying degrees, but the gasoline rule in
           particular provided a questionable example of how comments and
           information related to environmental justice were received and
           handled. As noted earlier in this testimony, the Clean Air Act
           requires that a final rule must be accompanied by a response to
           each significant comment raised during the comment period. In
           addition, according to EPA's public involvement policy, agency
           officials should explain how they considered the comments,
           including any change in the rule or the reason the agency did not
           make any changes. In the case of the gasoline rule,
           representatives of the petroleum industry, environmental groups,
           and others had asserted during the comment period that the
           proposed rule did in fact raise significant environmental justice
           concerns. One commenter claimed that inequities arose from the
           fact that while the national air quality benefits were broadly
           distributed across the country, higher per capita air quality
           costs were disproportionately confined to areas around refineries.

           Despite comments such as these, EPA's final rule did not state
           explicitly whether it would ultimately raise an environmental
           justice concern, although EPA officials told us in late 2004 that
           it would not. Furthermore, EPA did not publish the data and
           assumptions supporting its position. In fact, an unpublished
           analysis EPA developed before finalizing the rule appeared to
           suggest that environmental justice may indeed have been an issue.
           Specifically, EPA's analysis showed that harmful air emissions
           would increase in 26 of the 86 counties with refineries affected
           by the rule. According to EPA's analysis, one or both types of
           emissions--nitrogen oxides and volatile organic compounds--could
           be greater in the 26 counties than the rule's benefit of decreased
           vehicle emissions. In one case involving a Louisiana parish, EPA
           estimated that net emissions of nitrogen oxides could increase 298
           tons in 1 year as a result of the rule to refine cleaner gasoline.

           Under EPA's rulemaking process, the agency prepares a final
           economic review after considering public comments. EPA guidance
           indicates that this final economic review, like the economic
           review during the proposal stage, should identify the distribution
           of the rule's social costs across society. In the case of the
           three air rules, however, EPA completed a final economic review
           after receiving public comments but performed no environmental
           justice analyses. The publication of the final rules gave EPA
           another opportunity to explain how it considered environmental
           justice in the rule's development. When EPA published the final
           rules, however, two of the three rules did not explicitly state
           whether they would raise an environmental justice concern. Only
           the ozone rule stated explicitly that it would not raise an
           environmental justice concern.
			  
			  GAO's Recommendations and EPA's Response

           We made four recommendations to help EPA resolve the problems
           identified by our study. In its June 10, 2005 letter on a draft of
           our report, EPA initially said it disagreed with the
           recommendations, saying it was already paying appropriate
           attention to environmental justice. However, EPA responded more
           positively to each of these recommendations in an August 24, 2006
           letter.^4 The first recommendation called upon EPA rulemaking
           workgroups to devote attention to environmental justice while
           drafting and finalizing clean air rules. EPA responded that to
           ensure consideration of environmental justice in the development
           of regulations, the Office of Environmental Justice was made an ex
           officio member of the agency's Regulatory Steering Committee, the
           body that oversees regulatory policy for EPA and the development
           of its rules. The letter also said that (1) the agency's Office of
           Policy, Economics and Innovation (responsible in part for
           providing support and guidance to EPA's program offices and
           regions as they develop their regulations) convened an agency-wide
           workgroup to consider where environmental justice might be
           considered in rulemakings and (2) it was developing "template
           language" to help rule writers communicate findings regarding
           environmental justice in the preamble of rules.

           Second, to enhance workgroups' ability to identify potential
           environmental justice issues, we called on EPA to (a) provide
           workgroup members with guidance and training to help them identify
           potential environmental justice problems and (b) involve
           environmental justice coordinators in the workgroups when
           appropriate. In response to the call for better training and
           guidance, EPA said it was supplementing existing training with
           additional courses to create a comprehensive curriculum that will
           meet the needs of agency rule writers. Specifically, it explained
           that its Office of Policy, Economics, and Innovation was focusing
           on how agency staff can best be trained to consider environmental
           justice during the regulation development process; while the
           Office of Air and Radiation had already developed environmental
           justice training tailored to the specific needs of that office.
           Among other training opportunities highlighted in the letter was a
           new on-line course offered by the Office of Environmental Justice
           that addresses a broad range of environmental justice issues. EPA
           also cited an initiative by the Office of Air and Radiation's
           Office of Air Quality Planning and Standards to use a regulatory
           development checklist to ensure that potential environmental
           justice issues and concerns are considered and addressed at each
           stage of the rulemaking process. In response to our call for
           greater involvement of Environmental Justice coordinators in
           workgroup activities, EPA said that as an ex officio member of the
           Regulatory Steering Committee, the Office of Environmental Justice
           will be able to keep the program office environmental justice
           coordinators informed about new and ongoing rulemakings with
           potential environmental justice implications. It said that the
           mechanism for this communication would be monthly conference calls
           between the Office of Environmental Justice and the environmental
           justice coordinators.
			  
^431 U.S.C. 720 requires the head of a federal agency to submit a written
statement of the actions taken on our recommendations to the Senate
Committee on Homeland Security and Governmental Affairs, the House
Committee on Oversight and Government Reform, and the House and Senate
Committees on Appropriations within 60 days of issuance of our
recommendations.

           Third, we recommended that the Administrator improve assessments
           of potential environmental justice impacts in economic reviews by
           identifying the data and developing the modeling techniques needed
           to assess such impacts. EPA responded that its Office of Air and
           Radiation was reviewing information in its air models to assess
           which demographic data could be introduced and analyzed to predict
           possible environmental justice effects. It also said it was
           considering additional economic guidance on methodological issues
           typically encountered when examining a proposed rule's impacts on
           subpopulations highlighted in the executive order. Finally, it
           noted that the Office of Air and Radiation was assessing models
           and tools to (1) determine the data required to identify
           communities of concern, (2) quantify environmental health, social
           and economic impacts on these communities, and (3) determine
           whether these impacts are disproportionately high and adverse.

           Fourth, we recommended that the EPA Administrator direct cognizant
           officials to respond more fully to public comments on
           environmental justice by, for example, better explaining the
           rationale for EPA's beliefs and by providing supporting data. EPA
           said that as a matter of policy, the agency includes a response to
           comments in the preamble of a final rule or in a separate
           "Response to Comments" document in the public docket. The agency
           noted, however, that it will re-emphasize the need to respond to
           comments fully, to include the rationale for its regulatory
           approach, and to better describe its supporting data.
			  
			  EPA's Progress in Responding to Our Recommendations

           On July 18, 2007, we met with EPA officials to obtain more
           up-to-date information on EPA's environmental justice activities,
           focusing in particular on those most relevant to our report's
           recommendations. While we have not had the opportunity to
           independently verify the information provided in the few days
           since that meeting, our discussions did provide insights into
           EPA's progress in improving its environmental justice process in
           the two years since our report was issued. The following discusses
           EPA activities as they relate to each of our four recommendations.

           First, regarding our recommendation that workgroups consider
           environmental justice while drafting and finalizing regulations,
           EPA had emphasized in its August 2006 letter that making the
           Office of Environmental Justice an ex officio member of the
           Agency's Regulatory Steering Committee would not only allow it to
           be aware of all important EPA regulatory actions from their
           inception through rule development and final agency review, but
           more importantly, would allow it to participate on workgroups that
           are developing actions with potential environmental justice
           implications and/or recommend that workgroups consider
           environmental justice issues. To date, however, the Office of
           Environmental Justice has not participated directly in any of the
           103 air rules that have been proposed or finalized since EPA's
           August 2006 letter. According to EPA officials, the Office of
           Environmental Justice did participate in one workgroup of the
           Office of Solid Waste and Emergency Response, and provided
           comments on the final agency review for the Toxic Release
           Inventory Reporting Burden Reduction Rule. EPA officials also
           emphasized that its Tiering Form would be revised to include a
           question on environmental justice. As noted earlier, this key form
           is completed by workgroup chairs to alert senior managers to the
           potential issues related to compliance with statutes, executive
           orders, and other matters. However, two years after we cited the
           omission of environmental justice from the Tiering Form, EPA
           explained that its inclusion has been delayed because it is only
           one of several issues being considered for inclusion in the
           Tiering process.

           Second, regarding our recommendation to (1) improve training and
           (2) include Environmental Justice coordinators from EPA's program
           offices in workgroups when appropriate, our latest information on
           EPA's progress shows mixed results. On the one hand, EPA continues
           to provide an environmental justice training course that began in
           2002, and has included environmental justice in recent courses to
           help rule writers understand how environmental justice ties into
           the rulemaking process. On the other hand, some training courses
           that were planned have not yet been developed. Specifically, the
           Office of Policy, Economics, and Innovation has not completed the
           planned development of training on ways to consider environmental
           justice during the regulation development process. In addition,
           while the EPA said in its August 2006 letter that Office of Air
           and Radiation had developed environmental justice training
           tailored to that office, air officials told us last week that in
           fact they were unable to develop the training due to staff
           turnover and other reasons. Regarding our recommendation to
           involve the Program Offices' Environmental Justice coordinators in
           rulemaking workgroups when appropriate, EPA's August 2006 letter
           had said that the Coordinators' involvement would be facilitated
           through the Office of Environmental Justice's participation on the
           Regulatory Steering Committee. Specifically, it said that the
           Office of Environmental Justice would be "able to keep the
           agency's [Environmental Justice] Coordinators fully informed about
           new and ongoing rulemakings with potential Environmental Justice
           implications about which the coordinators may want to
           participate." According to EPA officials, however, this active,
           hands-on participation by Environmental Justice coordinators in
           rulemakings has yet to occur.

           Third, regarding our recommendation that EPA 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, EPA officials said that their
           data and models have improved since our 2005 report, but that
           their level of sophistication has not reached their goal for
           purposes of environmental justice considerations. EPA officials
           said that to understand how development of a rule might affect
           environmental justice for specific communities, further
           improvements are needed in modeling, and more specific data are
           needed about the socio-economic, health, and environmental
           composition of communities. Only when they have achieved such
           modeling and data improvements can they develop guidance on
           conducting an economic analysis of environmental justice issues.
           According to EPA, among other things, economists within the Office
           of Air and Radiation are continuing to evaluate and enhance their
           models in a way that will further improve consideration of
           environmental justice during rulemaking. For example, EPA
           officials told us that at the end of July, a contractor will begin
           to analyze the environmental justice implications of a
           yet-to-be-determined regulation to control a specific air
           pollutant. EPA expects that the study, due in June 2008, will give
           the agency information about what socio-economic groups experience
           the benefits of a particular air regulation, and which ones bear
           the costs. EPA expects that the analysis will serve as a prototype
           for analyses of other pollutants.

           Fourth, regarding our recommendation that the Administrator direct
           cognizant officials to respond more fully to public comments on
           environmental justice, EPA officials cited one example of an air
           rule in which the Office of Air and Radiation received comments
           from tribes and other commenters who believed that the proposed
           National Ambient Air Quality Standard for PM 10-2.5 raised
           environmental justice concerns. According to the officials, the
           agency discussed the comments in the preamble to the final rule
           and in the associated response-to-comments document. Nonetheless,
           the officials with whom we met said they were unaware of any
           memoranda or revised guidance that would encourage more global,
           EPA-wide progress on this important issue.
			  
			  Concluding Observation

           Our 2005 report concluded that the manner in which EPA has
           incorporated environmental justice concerns into its air
           rulemaking process fell short of the goals set forth in Executive
           Order 12898. One year after that report, EPA committed to a number
           of actions to be taken to address these issues. Yet an additional
           year later, most of these commitments remain largely unfulfilled.
           While we acknowledge the technical and financial challenges
           involved in moving forward on many of these issues, EPA's
           experience to date suggests the need for measurable
           benchmarks--both to serve as goals to strive for in achieving
           environmental justice in its rulemaking process, and to hold
           cognizant officials accountable for making meaningful progress.

           Madam Chairman, this concludes my prepared statement. I would be
           happy to respond to any questions that you or Members of the
           Subcommittee may have.
			  
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           Delicath, Brenna Guarneros, Terry Horner, Richard Johnson, Carol
           Kolarik, Alison O'Neil, and Cynthia Taylor.
			  
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Highlights of [16]GAO-07-1140T , a testimony before the Subommittee on
Superfund and Environmental Health, Committee on Environment and Public
Works, United States Senate

July 25, 2007

ENVIRONMENTAL JUSTICE

Measurable Benchmarks Needed to Gauge EPA Progress in Correcting Past
Problems

A 1994 Executive Order sought to ensure that minority and low-income
populations are not subjected to disproportionately high levels of
environmental risk. Studies have shown that these groups are indeed
disproportionately exposed to air pollution and other environmental and
health problems. The Order sought to address the problem by requiring EPA
and other federal agencies to make achieving environmental justice part of
their missions.

In July 2005, GAO issued a report entitled, Environmental Justice: EPA
Should Devote More Attention to Environmental Justice When Developing
Clean Air Rules (GAO-05-289). Focusing on three specific rules for
detailed study, the report identified a number of weaknesses in EPA's
approach to ensuring that environmental justice is considered from the
early stages of rule development through their issuance. The report made
several recommendations, to which EPA replied in an August 24, 2006
letter. GAO also met recently with cognizant EPA staff to obtain updated
information on the agency's responses to these recommendations.

In this testimony, GAO (1) summarizes the key findings of its 2005 report,
(2) outlines its recommendations to EPA and EPA's August 2006 responses,
and (3) provides updated information on subsequent EPA actions.

EPA generally devoted little attention to environmental justice when
drafting three significant clean air rules between fiscal years 2000 and
2004. GAO's 2005 report concluded, for example, that while EPA guidance on
rulemaking states that workgroups should consider environmental justice
early in the process, a lack of guidance and training for workgroup
members on how to identify potential environmental justice impacts limited
their ability to analyze such issues. Similarly, while EPA considered
environmental justice to varying degrees in the final stages of the
rulemaking process, in general the agency rarely provided a clear
rationale for its decisions on environmental justice-related matters. For
example, in responding to comments during the final phase of one of the
rules, EPA asserted that the rule would not have any disproportionate
impacts on low-income or minority communities, but did not publish any
data or the agency's assumptions in support of that conclusion.

Among its recommendations, GAO called on EPA to ensure that its rulemaking
workgroups devote attention to environmental justice while drafting and
finalizing clean air rules. EPA's August 2006 letter responded that it had
made its Office of Environmental Justice an ex officio member of the
Regulatory Steering Committee so that it would be aware of important
regulations under development and participate in workgroups as necessary.
GAO also recommended that EPA improve the way environmental justice
impacts are addressed in its economic reviews by identifying the data and
developing the modeling techniques needed to assess such impacts. EPA
responded that its Office of Air and Radiation was examining ways to
improve its air models so it could better account for the socioeconomic
variables identified in the Executive Order. GAO also recommended that
cognizant EPA officials respond more fully to public comments on
environmental justice by better explaining their rationale and by
providing the supporting data for the agency's decisions. EPA responded
that it would re-emphasize the need to respond fully to public comments,
include the rationale for its regulatory approach, and describe its
supporting data

Recent discussions between GAO and EPA officials suggest that some
progress has been made to incorporate environmental justice concerns in
the agency's air rulemaking, but that significant challenges remain. For
example, while the Office of Environmental Justice may be an ex officio
member of the Regulatory Steering Committee, it has not participated
directly in any air rules that have been proposed or finalized since EPA's
August 2006 letter to GAO. Also, according to EPA staff, some of the
training courses that were planned have not yet been developed due to
staff turnover among other reasons. When asked about GAO's recommendation
that cognizant officials respond more fully to public comments on
environmental justice, the EPA officials cited a recent rulemaking in
which this was done. But the officials said they were unaware of any
memoranda or revised guidance that would encourage more global progress on
this key issue.

References

Visible links
8. http://www.gao.gov/cgi-bin/getrpt?GAO-05-289
9. http://www.gao.gov/
  10. http://www.gao.gov/
  11. http://www.gao.gov/fraudnet/fraudnet.htm
  12. mailto:[email protected]
  13. mailto:[email protected]
  14. mailto:[email protected]
  15. http://www.gao.gov/cgi-bin/getrpt?GAO-07-1140T
  16. http://www.gao.gov/cgi-bin/getrpt?GAO-07-1140T
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