Regulation

Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses

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What GAO Found

The Environmental Protection Agency (EPA) used the seven Regulatory Impact Analyses (RIA) GAO reviewed to inform decision making, and its adherence to relevant Office of Management and Budget (OMB) guidance varied. According to senior EPA officials, the agency used these RIAs to facilitate communication with management throughout the rulemaking process and communicate information that supported its regulatory decisions to Congress and the public. However, it generally did not use them as the primary basis for final regulatory decisions.

EPA generally adhered to many aspects of OMB’s Circular A-4 guidance for analyzing the economic effects of regulations including, for example, considering regulatory alternatives and analyzing uncertainties underlying its RIAs. However, EPA did not always adhere to other aspects. Specifically, the information EPA included and presented in the RIAs was not always clear. According to OMB guidance, RIAs should communicate information supporting regulatory decisions and enable a third party to understand how the agency arrives at its conclusions. In addition, EPA’s review process does not ensure that the information about selected elements that should appear in the analyses—such as descriptions of baselines and alternatives considered—is transparent or clear, within and across its RIAs. As a result, EPA cannot ensure that its RIAs adhere to OMB’s guidance to provide the public with a clear understanding of its decision making.

In addition to using Circular A-4 (issued in 2003) to analyze the effects of regulations, EPA used more recent guidance developed by an interagency working group co-led by OMB and another White House office in 2010 for valuing carbon dioxide emissions. Applying this guidance while using Circular A-4 to estimate other benefits and costs yielded inconsistencies in some of EPA’s estimates and has raised questions about whether its approach was consistent with Circular A-4. Circular A-4 does not reference the new guidance and the new guidance does not include an overall statement explaining its relationship to Circular A-4. Without increased clarity about the relationship, questions about the agencies’ adherence to OMB guidance will likely persist.

In assessing EPA’s adherence to OMB guidance, GAO identified two other areas in which EPA faced challenges that limited the usefulness of some of its estimates. First, EPA did not monetize certain benefits and costs related to the primary purposes or key impacts of the rules GAO reviewed, such as reducing hazardous air pollutants and water quality effects. EPA officials said resource and data limitations constrained the agency’s ability to monetize these effects. OMB guidance acknowledges that monetizing effects is not always possible. However, without doing so, the public may face challenges understanding the trade-offs associated with regulatory alternatives. Second, EPA estimated effects of its regulations on employment, in part, using a study that, according to EPA officials, represented the best reasonably obtainable data when they conducted their analyses. However, the study was based on data that were more than 20 years old and may not have represented the regulated entities addressed in the RIAs. EPA officials said they are exploring new approaches for analyzing these effects but were uncertain about when such results would be available. Without improvements in its estimates, EPA’s RIAs may be limited in their usefulness for helping decision makers and the public understand these important effects.

Why GAO Did This Study

Federal regulations, especially those addressing health, safety, and the environment, can generate hundreds of billions of dollars in benefits and costs to society annually. Various statutes, executive orders, and OMB guidance direct federal agencies to analyze the benefits and costs of proposed regulations. These analyses—known as RIAs—can also provide affected entities, agencies, Congress, and the public with important information about the potential effects of new regulations.

According to OMB, EPA regulations account for the majority of the estimated benefits and costs of major federal regulations. GAO was asked to review EPA’s RIAs for recent regulations. This report examines how EPA has used RIAs during the rulemaking process and the extent to which EPA adhered to OMB guidance on selected elements of RIAs for recent rules. GAO reviewed RIAs from a nonprobability sample of seven recent air, water, and other environmental regulations, assessed them against relevant OMB guidance, and interviewed agency officials.

What GAO Recommends

GAO recommends that EPA improve adherence to OMB guidance and enhance the usefulness of its RIAs, and that OMB clarify the application of guidance for estimating the benefits of reducing greenhouse gas emissions. In commenting on a draft of this report, EPA stated that it generally agreed with GAO’s recommendations. On behalf of OMB, in oral comments OMB staff said that they neither agreed nor disagreed with the recommendations but saw some merit in them.

For more information, contact J. Alfredo Gomez at (202) 512-3841 or gomezj@gao.gov.

Illinois coal plant owners say they’ve done their part

Read the full story in the Chicago Tribune.

Owners of coal- and natural gas-fired power plants in Illinois told regulators Monday that they should look to other generators to reduce the state’s carbon footprint.

California lawmakers considering historic shift in groundwater policy

Read the full story from the Los Angeles Times.

As California continues to endure a calamitous lack of water from the sky, the state could, for the first time, start to regulate water drawn from the ground.

Groundwater regulation has been politically poisonous since the state’s founding. But lawmakers and Gov. Jerry Brown’s administration are hoping to capitalize on the current parched conditions, and cautious cooperation from once-resistant interest groups, to pass a plan for a groundwater management system by the end of the month.

U.S. EPA won’t grant Clinton landfill PCB permit

Read the full story in the News-Gazette.

The federal chemical waste permit that a DeWitt County landfill had been waiting on for years will not move forward, the U.S. EPA said on Wednesday.

The decision is based on the state EPA’s action at the end of July to ban certain chemicals at Clinton Landfill, which sits above the underground source of drinking water for 750,000 central Illinoisans. Before that, the landfill had been waiting for seven years for the federal EPA to approve a request to start accepting polychlorinated biphenyl-contaminated waste.

Why Texas Is Fighting the Federal Government over Water

Read the full story in Governing.

Foretelling a new environmental battle between state and federal regulators, Attorney General Greg Abbott this week demanded the U.S. Environmental Protection Agency back down from a proposal to expand the definition of federal waters to include seasonal and rain-dependent waterways.

Quinn signs water-safety legislation into law

Read the full story in the Chicago Tribune.

Gov. Pat Quinn on Sunday signed into law three pieces of legislation aimed at improving safety of the state’s water supply.

The Urban Flooding Awareness Act creates a working group of representatives from local, state and federal agencies to recommend ways to control urban flooding. Another bill requires community water supply systems to designate an operator who will be directly responsible for each system’s supply and distribution.

And the third bill allows law enforcement agencies to collect pharmaceuticals and other controlled substances from residents for safe disposal.

New GAO report on drinking water

Drinking Water: EPA Program to Protect Underground Sources from Injection of Fluids Associated with Oil and Gas Production Needs Improvement, GAO-14-555: Published: Jun 27, 2014. Publicly Released: Jul 28, 2014.

What GAO Found

The Environmental Protection Agency’s (EPA) role in the Underground Injection Control (UIC) class II program is to oversee and enforce fluid injection into wells associated with oil and gas production, known as class II wells. EPA has approved 39 states to manage their own class II programs, and EPA regions are responsible for managing the programs in remaining states. EPA regions and states use a mix of resources to manage class II programs, including EPA grant funding, state funding, and federal and state personnel. EPA’s UIC grant funding has remained at about $11 million for at least the past 10 years.

Class II programs from the eight selected states that GAO reviewed have safeguards, such as construction requirements for injection wells, to protect against contamination of underground sources of drinking water. Programs in two states are managed by EPA and rely on EPA safeguards, while the remaining six programs are state managed and have their own safeguards that EPA deemed effective at preventing such contamination. Overall, EPA and state program officials reported that these safeguards are protective, resulting in few known incidents of contamination. However, the safeguards do not address emerging underground injection risks, such as seismic activity and overly high pressure in geologic formations leading to surface outbreaks of fluids. EPA officials said they manage these risks on a state-by-state basis, and some states have additional safeguards to address them. EPA has tasked its UIC Technical Workgroup with reviewing induced seismicity associated with injection wells and possible safeguards, but it does not plan reviews of other emerging risks, such as high pressure in formations. Without reviews of these risks, class II programs may not have the information necessary to fully protect underground drinking water.

EPA is not consistently conducting two key oversight and enforcement activities for class II programs. First, EPA does not consistently conduct annual on-site state program evaluations as directed in guidance because, according to some EPA officials, the agency does not have the resources to do so. The agency has not, however, evaluated its guidance, which dates from the 1980s, to determine which activities are essential for effective oversight. Without such an evaluation, EPA does not know what oversight activities are most effective or necessary. Second, to enforce state class II requirements, under current agency regulations, EPA must approve and incorporate state program requirements and any changes to them into federal regulations through a rulemaking. EPA has not incorporated all such requirements and changes into federal regulations and, as a result, may not be able to enforce all state program requirements. Some EPA officials said that incorporating changes into federal regulations through the rulemaking process is burdensome and time-consuming. EPA has not, however, evaluated alternatives for a more efficient process to approve and incorporate state program requirements and changes into regulations. Without incorporating these requirements and changes into federal regulations, EPA cannot enforce them if a state does not take action or requests EPA’s assistance to take action.

EPA collects a large amount of data on each class II program, but the data are not reliable (i.e., complete or comparable) to report at a national level. EPA is working on a national database that will allow it to report UIC results at a national level, but the database will not be fully implemented for at least 2 to 3 years.

Why GAO Did This Study

Every day in the United States, at least 2 billion gallons of fluids are injected into over 172,000 wells to enhance oil and gas production, or to dispose of fluids brought to the surface during the extraction of oil and gas resources. These wells are subject to regulation to protect drinking water sources under EPA’s UIC class II program and approved state class II programs. Because much of the population relies on underground sources for drinking water, these wells have raised concerns about the safety of the nation’s drinking water.

GAO was asked to review EPA’s oversight of the class II program. This report examines (1) EPA and state roles, responsibilities, and resources for the program, (2) safeguards to protect drinking water, (3) EPA oversight and enforcement of class II programs, and (4) the reliability of program data for reporting. GAO reviewed federal and state laws and regulations. GAO interviewed EPA and state officials and reviewed class II programs from a nongeneralizable sample of eight states selected on the basis of shale oil and gas regions and the highest number of class II wells.

What GAO Recommends

GAO recommends that, among other things, EPA review emerging risks related to class II program safeguards and ensure that it can effectively oversee and efficiently enforce class II programs. EPA agreed with all but the enforcement recommendation. GAO continues to believe that EPA should take actions to ensure it can enforce state class II regulations, as discussed in the report.

For more information, contact Jose A. Gómez at (202) 512-3841 or gomezj@gao.gov.

States Against E.P.A. Rule on Carbon Pollution Would Gain, Study Finds

Read the full story in the New York Times.

Gov. Rick Perry of Texas and Senator James M. Inhofe of Oklahoma are among the most vocal Republican skeptics of the science that burning fossil fuels contributes to global warming, but a new study to be released Thursday found that their states would be among the biggest economic winners under a regulation proposed by President Obama to fight climate change.

The study, conducted by the Center for Strategic and International Studies and the Rhodium Group, both research organizations, concluded that the regulation would cut demand for electricity from coal — the nation’s largest source of carbon pollution — but create robust new demand for natural gas, which has just half the carbon footprint of coal. It found that the demand for natural gas would, in turn, drive job creation, corporate revenue and government royalties in states that produce it, which, in addition to Oklahoma and Texas, include Arkansas and Louisiana.

Under Water: The EPA’s Struggle to Combat Pollution

Read the full story at ProPublica.

For years, the U.S. Environmental Protection Agency has been frustrated in its efforts to pursue hundreds of cases of water pollution — repeatedly tied up in legal fights about exactly what bodies of water it has the authority to monitor and protect. Efforts in Congress to clarify the EPA’s powers have been defeated. And two Supreme Court decisions have done little to decide the question.

Most recently, in April, the EPA itself declared what waters were subject to its oversight — developing a joint rule with the U.S. Army Corps of Engineers that sought to end the debate and empower the EPA to press hundreds of enforcements actions against alleged polluters across the country.

The new rule, for instance, explicitly defines several terms — tributary, floodplain and wetland — and makes clear that those waters are subject to its authority.

But the EPA’s effort has been met with immense opposition from farmers who say the agency is overreaching. An expansive online campaign organized and financed by the American Farm Bureau Federation has asserted that the new rule will give the EPA jurisdiction over farmers’ irrigation ditches, watering ponds and even puddles of rain.