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United States Government Accountability Office: 
Washington, DC 20548: 

January 16, 2009: 

Congressional Requesters: 

Subject: Clean Air Act: Historical Information on EPA's Process for 
Reviewing California Waiver Requests and Making Waiver Determinations: 

Emissions from mobile sources, such as automobiles and trucks, 
contribute to air quality degradation and can threaten public health 
and the environment. Under the Clean Air Act, the Environmental 
Protection Agency (EPA) regulates these emissions. The act generally 
allows one set of federal standards for new motor vehicle emissions and 
pre-empts states from adopting or enforcing their own standards. 
However, it also authorizes the EPA Administrator to waive this 
provision to allow the state of California[Footnote 1] to enact and 
enforce emission standards for new motor vehicles that are as 
protective, in the aggregate, as federal government standards. Other 
states may also adopt California's standards if they choose. The waiver 
provision was added to the Federal Air Quality Act (one of the 
precursors of the current Clean Air Act) in 1967 because of 
California's severe air pollution problems and because the state had 
already established its own emission standards for mobile sources. 

California has used this waiver provision regularly to establish and 
enforce standards for vehicle emissions more stringent than those 
required by federal law. However, California must request a waiver of 
federal pre-emption and the EPA Administrator must approve it before 
California or any other state can implement such standards. Since being 
given this authority, California has requested and been granted waivers 
more than 50 times.[Footnote 2] 

The Clean Air Act specifies, under section 209(b), that the EPA 
Administrator shall grant a waiver if the state has determined that its 
standards will be, "in the aggregate, at least as protective of public 
health and welfare as applicable federal standards." However, the 
statute prohibits the EPA Administrator from granting a waiver if it is 
found that: (1) the state's protectiveness determination was arbitrary 
and capricious, (2) the state's standards are not needed to meet 
"compelling and extraordinary conditions," or (3) the state's standards 
are inconsistent with certain Clean Air Act provisions related to 
technical feasibility and lead time to manufacturers. 

In December 2005, California requested a waiver from EPA to allow it to 
regulate motor vehicle emissions of greenhouse gases, which are closely 
linked to global climate change. At the time, EPA was responding to 
litigation initiated by environmental groups and state and local 
governments regarding whether greenhouse gas emissions were air 
pollutants that the agency had authority to regulate under the Clean 
Air Act. EPA delayed action on California's waiver request pending the 
outcome of that litigation. On April 2, 2007, the U.S. Supreme Court 
decided the question in Massachusetts v. EPA by holding that EPA did 
have the authority to regulate greenhouse gas emissions. Nevertheless, 
on December 19, 2007, the EPA Administrator announced his intent to 
deny California's request. The Administrator subsequently formalized 
the denial in a decision document he signed and EPA published in the 
Federal Register on March 6, 2008. The decision has received a high 
level of attention for a number of reasons. For example, it departed in 
certain respects from EPA's previous waiver determinations--it was the 
first time that EPA denied a formal waiver request outright, and it 
also was the first time EPA used the "compelling and extraordinary 
conditions" criterion in the Clean Air Act as the basis for denying a 
waiver request.[Footnote 3] 

Due to the atypical outcome of EPA's decision regarding California's 
greenhouse gas waiver request, you asked us to review the decision to 
deny the waiver. As agreed with your offices, we focused our work on 
the process for and outcomes of past waiver requests because the 
greenhouse gas waiver decision is the subject of ongoing litigation. 
Thus, we did not seek to examine the basis for the greenhouse gas 
decision itself or the process EPA used in reviewing this waiver 
request. This report summarizes the information about prior waiver 
requests and decisions provided to your staffs during our November 21, 
2008, briefing. 

To identify EPA's typical California waiver review process and to 
analyze the outcomes of waiver requests, we reviewed key EPA documents 
that identify the steps EPA takes in reviewing waiver requests and 
making waiver decisions; we also reviewed agency decision documents. We 
interviewed officials from EPA's Office of Transportation and Air 
Quality and Office of General Counsel involved in reviewing waiver 
requests and preparing supporting documentation for EPA's decision, as 
well as California Air Resources Board officials involved in waiver 
requests. In addition, we compiled information on previous waiver 
requests based on documents provided by EPA and the California Air 
Resources Board. We supplemented this information by reviewing the 
final EPA decision documents and Federal Register announcements for 
waiver requests. Using these sources, we analyzed the universe of 
requests to identify the outcomes of waiver requests. However, our 
analyses were limited to some extent by incomplete and missing 
documentation, which precluded us from determining the exact number of 
waiver requests California has made and from developing comprehensive 
information on EPA's responses to them. Nonetheless, we believe that 
the available information supports the statements about the (1) typical 
waiver review process EPA has used in reviewing past waiver requests 
and (2) waiver decisions provided in this report; these statements have 
also been verified by cognizant EPA officials. To ensure our efforts 
were not duplicated, we coordinated our work with the EPA Office of 
Inspector General.[Footnote 4] We conducted this engagement from June 
2008 to December 2008 in accordance with all sections of GAO's Quality 
Assurance Framework that are relevant to our objectives. The framework 
requires that we plan and perform the engagement to obtain sufficient 
and appropriate evidence to meet our stated objectives and to discuss 
any limitations in our work. We believe that the information and data 
obtained, and the analysis conducted, provide a reasonable basis for 
any findings and conclusions. 

EPA's Process for Reviewing California Requests for Waivers of Federal 
Pre-emption under the Clean Air Act, and Outcomes of Past Requests: 

EPA's process for responding to waiver requests has typically consisted 
of an informal five-step process, through which staff evaluate the 
waiver request and review its adherence to criteria laid out in section 
209(b) of the Clean Air Act. According to EPA officials, the agency: 

* receives and begins review of the waiver request; 

* issues a notice in the Federal Register about the waiver request, 
including the opportunity for a hearing; 

* holds a hearing, if interest is expressed, and accepts public 
comments on the proposed waiver; 

* holds internal discussions and conducts internal analysis on the 
waiver request, including consideration of public comments; and: 

* prepares a decision document and publishes the decision in the 
Federal Register. 

EPA officials said that as the draft decision document is routed 
through the approval chain at EPA, it is typically accompanied by a 
draft Federal Register notice, which lays out the decision and the 
three statutory criteria in section 209(b) and summarizes the analysis 
behind the decision. The draft decision document is also usually 
accompanied by an "action memorandum" that identifies the issues, 
examines the three Clean Air Act section 209(b) criteria, summarizes 
public comments, discusses anticipated reaction from external parties 
and potential for litigation, and provides a recommendation for action. 
A one-page summary of the action memo is also typically provided. For 
the past 15 years, several officials in EPA's Office of Transportation 
and Air Quality have been the primary staff involved in reviewing 
waiver requests and preparing documents supporting decisions. 
Typically, EPA's Office of General Counsel then reviews these documents 
before a final decision is made by EPA's Assistant Administrator for 
Air and Radiation. According to the EPA Office of Transportation and 
Air Quality officials involved in the process over the past 15 years, 
the approving official's decisions have generally aligned with staff 
recommendations to approve waivers, whether in full or in part. 

While some of these steps are documented in the Federal Register and 
the public docket that EPA maintains for each decision, others-- 
specifically internal discussions, internal analyses, decision document 
drafts, and the documents that accompany the drafts through the 
approval chain--are generally not formally documented, retained, or 
made publicly available. In addition, the contents of the public 
dockets for waiver decisions are not standardized and vary from 
decision to decision. The majority of the dockets were prepared 10 or 
more years ago, and we could not determine the extent to which they are 
complete. Consequently, it is not feasible to identify the specific 
internal actions that EPA has taken or the discussions the agency has 
held with internal and external parties when deliberating previous 
waiver requests. 

However, available information does show that EPA's informal process 
for past waiver decisions has led to the following outcomes: 

* The majority of the waiver requests were granted in full--that is, 
approximately 42 waivers have been fully granted.[Footnote 5] 

* Waivers were granted in part when EPA found that aspects of the 
waiver request did not meet the criteria under Section 209(b). EPA has 
granted waivers in part approximately nine times since 1967.[Footnote 

* Determinations that a waiver should be granted in part were usually 
based on the Section 209(b) criterion covering technical feasibility 
and lead time issues.[Footnote 7] (See enclosure I for information on 
waiver decisions that were granted in part and EPA's rationale for 
these decisions.) 

* Decision documents were drafted prior to announcements about waiver 
decisions. As discussed earlier, these documents are typically drafted 
after the public hearing and public comment processes are complete. 

* Since the mid-1980s, Assistant Administrators generally signed the 
waiver decisions rather than Administrators. Since 1992, it has been 
the official duty of the Assistant Administrator for Air and Radiation 
to sign waiver decisions.[Footnote 8] 

Agency Comments and Our Evaluation: 

We provided a statement of facts supporting this report to EPA 
officials in the Office of Air and Radiation's Office of Transportation 
and Air Quality and the Office of General Counsel for their review and 
comment. They generally agreed with the information and provided 
technical comments, which we have incorporated where appropriate. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies to the 
Administrator, EPA; appropriate congressional committees; and other 
interested parties. The report also will be available at no charge on 
the GAO Web site at [hyperlink,]. 

If you or your staffs have any questions about this report, please 
contact me at (202) 512-3841 or Contact points for 
our Offices of Congressional Relations and Public Affairs may be found 
on the last page of this report. Key contributors to this report 
include Christine Fishkin (Assistant Director), Laura Gatz, Joanna 
Owusu, Karen Keegan, Antoinette Capaccio, and Elizabeth Beardsley. 

Signed by: 

John B. Stephenson:
Director, Natural Resources and Environment: 


List of Requesters: 

The Honorable Barbara Boxer:
Committee on Environment and Public Works:
United States Senate: 

The Honorable Dianne Feinstein:
Subcommittee on Interior, Environment, and Related Agencies:
Committee on Appropriations:
United States Senate: 

The Honorable Benjamin L. Cardin:
The Honorable Hillary Rodham Clinton:
The Honorable Amy Klobuchar:
The Honorable Frank R. Lautenberg:
The Honorable Joseph I. Lieberman:
The Honorable Bernard Sanders:
The Honorable Sheldon Whitehouse:
United States Senate: 

Enclosure I: 

EPA's Basis for California Waivers Granted in Part, 1968-2008: 

Waiver description: Amendments to California's Zero Emission Vehicle 
regulations affecting 2006 and prior year vehicles and 2007-2011 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Technological feasibility/lead 
time: EPA affirmed that certain amendments to regulations affecting 
2006 and prior-year vehicles were within the scope of previous waivers 
and thus continued to qualify for a waiver, and it granted a waiver for 
regulations affecting 2007 through 2011 vehicles but did not grant a 
waiver for a regulation affecting 2012 and later vehicles (the 
commercial phases of Zero Emission Vehicle implementation). EPA did not 
believe that the fuel-cell technology required would be available for 
commercial application by 2012. (Decision Document, p. 57); 
Waiver request date: 9/23/2004; 
Waiver announcement date (Federal Register): 12/28/2006. 

Waiver description: Onboard Refueling Vapor Recovery (ORVR) standards 
and test procedures, and amendments to evaporative emission test 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Protectiveness determination 
arbitrary and capricious: This is the only instance in which EPA denied 
a waiver in part on this basis. EPA concluded that the California Air 
Resources Board's (CARB) finding in support of its ORVR regulations was 
arbitrary and capricious to the extent the regulations applied to 
vehicles other than gaseous fueled vehicles. EPA granted the waiver for 
the ORVR standards in all other respects. A decision on a waiver for 
CARB's amendments to emission test procedures was deferred. (67 Fed. 
Reg. 54180, 54181); [Footnote 10] 
Waiver request date: 7/22/1997; 
Waiver announcement date (Federal Register): 8/21/2002. 

Waiver description: Emissions standards and certification procedures 
for 1979 and later heavy-duty motor vehicles; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Lead time: There was not time for 
manufacturers to retool facilities to produce vehicles in compliance 
with the proposed standard by 1979. Rather than deny the waiver 
outright, however, EPA granted it on the condition that manufacturers 
could instead comply with the 1978 standard for another year. (42 Fed. 
Reg. 31637, 31640-41); 
Waiver request date: 11/12/1976; 
Waiver announcement date (Federal Register): 6/22/1977. 

Waiver description: Evaporative hydrocarbon emission standards and 
Sealed Housing for Evaporative Determinations test procedures for 1977 
and later light-duty vehicles; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Lead time: Because there was not 
sufficient time to apply the new technological requirements to 1977 
vehicles but there was sufficient time to apply them to 1978 vehicles, 
the waiver was denied for 1977 and granted for 1978 and later years. 
(40 Fed. Reg. 30311, 30311); 
Waiver request date: 4/23/1975; 
Waiver announcement date (Federal Register): 7/18/1975. 

Waiver description: Stricter standards for hydrocarbon, carbon 
monoxide, and oxides of nitrogen emissions for 1975 and later light-
duty trucks; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Technological feasibility/lead 
time: While the technology existed to achieve the proposed standards 
for hydrocarbon and carbon monoxide and there was enough time to 
implement that technology, the costs associated with adopting the 
standards by 1975 were prohibitive. A waiver was thus denied as it 
applied to the 1975 model year, but EPA suggested an alternative 
acceptable standard for 1975. There was adequate lead time to achieve 
the standards without excessive cost by 1976, however; thus, a waiver 
was granted for 1976 and subsequent model years. No technology was 
available to achieve California's proposed standard for oxides of 
nitrogen by 1975, and thus a waiver was denied for that standard, but 
EPA suggested an alternative acceptable standard for 1975. (38 Fed. 
Reg. 30136, 30136); 
Waiver request date: 8/17/1973; 
Waiver announcement date (Federal Register): 11/1/1973. 

Waiver description: Standards and test procedures for 1973-1976 
gasoline light-duty vehicles; carbon monoxide standard for 1975 
passenger cars; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Technological feasibility/lead 
time: The Clean Air Act required that hydrocarbon and carbon monoxide 
levels be reduced during 1975 by 90% from their 1970 levels. EPA could 
suspend this requirement for 1 year based in part on technological 
feasibility. Industry applied for a suspension. California applied for 
a waiver to apply standards close to the federal requirement. EPA 
waived pre-emption for California's hydrocarbon and nitrogen oxide 
standards but denied a waiver for its carbon monoxide standard based on 
technological feasibility and lead-time concerns. As an alternative, 
EPA proposed an interim federal standard that required more stringent 
technological controls for cars shipped to California than to elsewhere 
in the country (38 Fed. Reg. 10317, 10319); 
Waiver request date: 9/29/1971; 
Waiver announcement date (Federal Register): 4/25/1972; 4/26/1973; 
3/15/1974[Footnote 11]. 

Waiver description: Assembly-line test procedures for 1973 and later 
motor vehicles; statutory requirement for use of 91 research octane 
gasoline in testing 1972 model year vehicles; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Lead time: EPA overturned previous 
waiver denial (11/18/1970) for assembly-line test procedures, agreeing 
that it could not deny a waiver based on overall cost as opposed to 
benefit if adequate compliance time were provided. EPA upheld its 
waiver denial regarding 91 research octane fuel, however, because there 
was inadequate time for manufacturers to apply the technology necessary 
to use the new fuel at a reasonable cost. (36 Fed. Reg. 17458, 17458-
Waiver request date: 5/25/1971; 
Waiver announcement date (Federal Register): 8/31/1971. 

Waiver description: Various exhaust standards and test procedures for 
heavy-duty diesel engines, heavy-duty gasoline engines, gasoline light-
duty vehicles; and assembly-line test procedures from 1972 through 1975 
and later vehicles; 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Lead time: Waived exhaust 
standards and test procedures for 1972 model gas-powered light-duty 
vehicles except insofar as they did not make special provision for 
calculation of hydrocarbon and carbon monoxide emissions from off-road 
utility vehicles and required use of 91 research octane fuel. Waived 
assembly-line test standards and procedures except as applied to 1973 
gas-powered light-duty vehicles. Waived certain other standards except 
insofar as 91 research octane fuel was required for testing 1972 
vehicles. EPA made these exceptions because there was not time to apply 
the required technology at a reasonable cost in any case, and with 
regard to assembly-line test procedures, there was no evidence that the 
new standard would result in reduced emissions. (36 Fed. Reg. 8172, 
Waiver request date: 11/18/1970 (CARB adoption date)[Footnote 12]; 
Waiver announcement date (Federal Register): 4/30/1971. 

Waiver description: Exhaust standards for 1970, and later light-duty 
vehicles; oxides of nitrogen standards for 1974 and later light-duty 
vehicles; gasoline exhaust standards for 1972 and later heavy-duty 
vehicles; and evaporative standards for 1970 and later light-duty 
Aspects of historical waiver requests that EPA concluded did not meet 
section 209(b) criteria[Footnote 9]: Exceptions related to 
technological feasibility/lead time: Due to technological feasibility 
and lead-time issues, exhaust emission standards and test procedures 
for 1970 gas-powered light-duty vehicles were not to be applied to off-
road utility vehicles until April 30, 1970, and not at all unless 
provision was made for calculating emissions of hydrocarbons and carbon 
monoxide. Due to technological feasibility issues, standards and 
procedures for 1971 and later gas-powered light-duty vehicles were not 
to be applied to off-road utility vehicles unless provision was made 
for calculating emissions of hydrocarbons and carbon monoxide. Due to 
technological feasibility issues, fuel evaporative emission standards 
and test procedures for 1970 and later gas-powered light-duty vehicles 
were not to be applied to off-road utility vehicles until April 30, 
1970. (34 Fed. Reg. 7348, 7348); 
Waiver request date: 7/25/1968 (CARB adoption date)[12]; 
Waiver announcement date (Federal Register): 5/6/1969. 

Source: GAO analysis of EPA and CARB data. 

[End of table] 

[End of section] 


[1] The act does not name California but waives the prohibition on the 
development of separate state standards for any state that had adopted 
certain motor vehicle emission standards prior to March 1966. 
California is the only state that had adopted such standards. 

[2] Incomplete and missing documentation precluded us from determining 
the exact number of waiver requests California has made since 1967 and 
from developing comprehensive information on EPA's responses to them. 

[3] In this case, EPA considered whether the specific standard at issue 
was needed to meet compelling and extraordinary conditions related to a 
specific pollutant (greenhouse gas emissions). Until this decision, EPA 
had looked at the whole California program in determining compliance 
with this waiver criterion, and thus the agency had not examined 
whether the specific standards at issue were needed to meet compelling 
and extraordinary conditions related to a specific pollutant. 

[4] EPA Office of Inspector General, EPA's California Waiver Decision 
on Greenhouse Gas Automobile Emissions Met Statutory Procedural 
Requirements, Report No. 09-P-0056 (Washington, D.C., Dec. 9, 2008). 

[5] Missing documents and inconsistently recorded information preclude 
us from developing exact statistics on the number of waivers granted or 
granted in part. 

[6] EPA has used a variety of terms to characterize waivers that were 
granted in part, including partially denied, granted with exceptions, 
granted with minor exceptions, granted with conditions, or no action 
taken on portions of the request. In this report, we use the term, 
"waivers granted in part." 

[7] The only instance where EPA used a different criterion in declining 
to fully grant a waiver was a waiver request that was granted with 
exceptions in 2002 because EPA found that California's protectiveness 
determination for a particular aspect of the standard was arbitrary and 

[8] The authority to approve waivers was officially delegated to the 
Assistant Administrator for Air and Radiation in 1992. 

[End of section] 

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