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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Congressionally Requested Report:
Improving air quality
EPA's 2017 Glider Vehicle
Testing Complied with
Standard Practices
July 31, 2019
Report No. 19-P-0252
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Report Contributors: Patrick Gilbride
James Kohler
Sarah Mesrobian
Todd Goldman
Abbreviations
CAA
Clean Air Act
CFR
Code of Federal Regulations
EPA
U.S. Environmental Protection Agency
FOIA
Freedom of Information Act
FY
Fiscal Year
MOVES
Motor Vehicle Emission Simulator
OEM
Original Equipment Manufacturer
OIG
Office of Inspector General
OTAQ
Office of Transportation and Air Quality
U.S.C.
United States Code
Cover Photo: The back of a heavy-duty chassis dynamometer used for testing glider vehicles.
(EPA OIG photo)
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At a Glance
Why We Did This Project
The U.S. Environmental
Protection Agency's (EPA's)
Office of Inspector General
(OIG) conducted this audit in
response to two congressional
requests that raised concerns
about glider vehicle testing
conducted by the EPA in 2017.
A glider vehicle is a truck that
uses a previously owned
powertrain (including the
engine, transmission and
usually the rear axle) but has
new body parts. In 2017, the
EPA performed emissions
testing on two glider vehicles,
which it received by donation,
at its National Vehicle and Fuel
Emissions Laboratory in Ann
Arbor, Michigan.
The OIG also has an
ongoing audit related to the
development of a
November 2017 proposed
rulemaking pertaining to glider
vehicles (see Project
Notification: Response to
Congressional Request on
Glider Repeal Actions, Project
No. OA&E-FY19-0053).
This report addresses the
following:
• Improving air quality.
• Compliance with the law.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
EPA's 2017 Glider Vehicle Testing Complied with
Standard Practices
The EPA's
2017 glider
vehicle testing
complied with
EPA standard
practices.
What We Found
We found that the EPA's selection and testing of the donated
glider vehicles in 2017 was consistent with Clean Air Act
authority, standard EPA practices, and relevant policies and
procedures. We found that the EPA did not fully adhere to its
delegation of authority related to the acceptance of donated
property under the Clean Air Act. The delegation of authority
establishes limitations that impede the EPA's ability to
practically implement its donation acceptance authority. We also found that more
direction on the solicitation and acceptance of donations would make the process
more transparent, address concerns over preferential treatment, and potentially
give the EPA more options to carry out its research objectives.
We confirmed that EPA employees obtained approval to conduct glider vehicle
testing and that EPA leadership received an August 2017 briefing on the potential
for a glider vehicle test program before EPA career staff initiated the program.
We found that EPA employees followed normal procedures in submitting the
November 2017 glider vehicle test report to a public rulemaking docket.
We found no evidence that EPA staff deleted materials potentially responsive to
Freedom of Information Act requests or records within the scope of our audit that
were related to the EPA's 2017 glider vehicle testing.
We also found no evidence that a former Office of Transportation and Air Quality
Center Director violated ethics restrictions either while serving as a federal
employee or post federal employment.
Recommendations and Planned Agency Corrective Actions
We recommend that the Assistant Administrator for Air and Radiation, in
consultation with the General Counsel, the Designated Agency Ethics Official,
and the Assistant Administrator for Research and Development, revise the
delegation of authority to enable practical implementation for the acceptance of
donated property consistent with Section 104 of the Clean Air Act, and address
pertinent ethics considerations. We also recommend that the Assistant
Administrator for Air and Radiation, in consultation with the General Counsel and
the Designated Agency Ethics Official, evaluate and document whether the Office
of Transportation and Air Quality needs to develop further guidance or policies to
implement the delegation of authority for the acceptance of donated property
under Section 104 of the Clean Air Act; and, if needed, develop the guidance or
policies. The recommendations are resolved with corrective actions pending.
List of OIG reports.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
July 31, 2019
MEMORANDUM
SUBJECT: EPA's 2017 Glider Vehicle Testing Complied with Standard Practices
Report No. 19-P-0252
FROM: Charles J. Sheehan, Deputy Inspector General
TO:
Anne Idsal, Acting Assistant Administrator
Office of Air and Radiation
This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). The project number for this audit was
OA&E-FY18-0271. This report contains findings that describe the problems the OIG has identified and
corrective actions the OIG recommends. This report represents the opinion of the OIG and does not
necessarily represent the final EPA position. Final determinations on matters in this report will be made
by EPA managers in accordance with established audit resolution procedures.
The Office of Air and Radiation's Office of Transportation and Air Quality has primary responsibility
for subjects covered in this audit.
In accordance with EPA Manual 2750, your office provided acceptable corrective actions and milestone
dates in response to OIG recommendations. All recommendations are resolved and no final response to
this report is required. However, if you submit a response, it will be posted on the OIG's website, along
with our memorandum commenting on your response. Your response should be provided as an Adobe
PDF file that complies with the accessibility requirements of Section 508 of the Rehabilitation Act of
1973, as amended. The final response should not contain data that you do not want to be released to the
public; if your response contains such data, you should identify the data for redaction or removal along
with corresponding justification.
We will post this report to our website at www.epa.gov/oig.
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EPA's 2017 Glider Vehicle Testing 19-P-0252
Complied with Standard Practices
Table of C
Purpose 1
Background 1
Responsible Offices 5
Scope and Methodology 5
Results 6
EPA Followed Standard Practices in Selecting and Testing Glider Vehicles 6
EPA's Acquisition of Glider Vehicles Was Consistent with CAA
but Inconsistent with Delegation of Authority Limitations 8
EPA Employees Obtained Approval and Followed Standard Practices
to Conduct Glider Vehicle Testing and Submit Test Report
to Rulemaking Docket 10
OIG Found No Evidence That EPA Staff Deleted Materials Potentially
Responsive to FOIA Requests Within the Scope of Our Audit That
Related to Glider Vehicle Testing 11
OIG Did Not Identify Ethics Violations by Former OTAQ Center Director 11
Conclusions 13
Recommendations 13
Agency Response and OIG Evaluation 13
Status of Recommendations and Potential Monetary Benefits 15
Appendices
A Office of Air and Radiation Response to Draft Report 16
B Distribution 19
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Purpose
The U.S. Environmental Protection Agency's (EPA's) Office of Inspector
General (OIG) received two congressional requests that raised concerns about
glider vehicle testing conducted by the EPA in 2017. In response to the
congressional requests, the OIG conducted an audit to examine the selection,
acquisition and testing of glider vehicles at the EPA's National Vehicle and Fuel
Emissions Laboratory, as well as the EPA's planning for this testing.
The OIG's audit answered the following questions that address congressional
concerns and involve the EPA's November 20, 2017, report titled Chassis
Dynamometer Testing of Two Recent Model Year Heavy-Duty On-Highway
Diesel Glider Vehicles (EPA-HQ-QAR-2014-0827-2417):
• Did the selection and testing of glider vehicles violate any policies or
procedures intended to ensure the objectivity and integrity of tests
conducted at the EPA's laboratory? Also, did the selection and testing of
glider vehicles as part of this study differ from the standard practice of
selecting and testing of vehicles on the EPA's heavy-duty chassis
dynamometer?1
• Did EPA employees follow policies and procedures in seeking and
obtaining approval from EPA leadership to conduct testing and submit the
test results to the public rulemaking docket?
• Were email communications between the EPA and Volvo2 deleted or not
fully provided to EPA Freedom of Information Act (FOIA) personnel in
response to a FOIA request(s) regarding the report? If so, was this done in
accordance with FOIA laws, regulations, policies and procedures, and did
any record management violations occur?
The OIG's audit also involved coordinating with the EPA's Ethics Office to
determine whether a former Center Director in the EPA's Office of
Transportation and Air Quality (OTAQ) violated any post-employment
restrictions on federal officials. The OIG also examined ethics restrictions that
applied to the former OTAQ Center Director while still a federal employee and
negotiating employment with a trade association.
Background
The following timeline provides key dates and background context for the audit
questions. A glider vehicle is a truck that uses a previously owned powertrain
1 A chassis dynamometer consists of rollers connected to an electric motor. The vehicle being tested drives on the
rollers, which simulate the speed and resistance of an actual road. Dynamometers simulate road surfaces and allow
testing to be reproducible in a laboratory environment.
2 Volvo is an external party identified in the congressional requests.
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(including the engine, transmission and usually the rear axle) but has new body
parts.3
October 25, 2016: The EPA finalized a rule titled Final Rule for Greenhouse Gas
Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines
and Vehicles—Phase 2 (Phase 2 Final Rule). Prior to October 2016, the EPA had
not conducted any testing of glider vehicles. Part of the rule required that engines
installed in glider vehicles meet the emission standards applicable in the year the
glider vehicle was assembled.
While some heavy-duty engine Original Equipment Manufacturers (OEMs) also
manufacture gliders, public comments from the OEMs on the rule were generally
supportive because of the high level of investment that the OEMs make to build
new engines that meet EPA emission standards. The glider industry did not have
to meet those standards prior to the October 2016 Phase 2 Final Rule. The glider
industry opposed this rule in public comments. The EPA based its estimates of
glider vehicle emissions on the year the glider engine was originally
manufactured, emission rates that the EPA developed for highway heavy-duty
diesel vehicles for the EPA's Motor Vehicle Emission Simulator (MOVES)
model, and engineering principles demonstrating that an engine without emission
controls will emit more pollution.
July 10, 2017: The glider industry petitioned the EPA and asked the agency to
reconsider applying the Phase 2 Final Rule to glider vehicles. The petitioners
argued that the Phase 2 Final Rule relied on the EPA's authority under
Section 202(a) of the Clean Air Act (CAA) to regulate emissions from "new
motor vehicles." However, because glider vehicles are not "new motor vehicles,"
in the petitioners' view, the petitioners argued that the EPA lacked the authority
under this provision to apply the Phase 2 Final Rule to gliders. In addition, the
petitioners highlighted results from a Tennessee Technological University
(Tennessee Tech) study that claimed emissions from remanufactured engines used
in glider vehicles performed roughly on par with—and, in some cases,
outperformed—OEM "certified" engines4 with regard to emissions.
August 11, 2017: OTAQ staff briefed EPA senior leadership on options for
responding to the petition to reconsider the glider portion of the Phase 2 Final
Rule. The briefing addressed both the authority question and the Tennessee Tech
study. OTAQ's briefing noted that OTAQ considered the Tennessee Tech study to
be incomplete and lacking critical details. The briefing included a potential EPA
glider vehicle emissions test program and cited a request contained in a
3 This report uses the terms "glider vehicles" and "gliders" to refer to glider engines (remanufactured or refurbished)
and glider kits (new cab and chassis), which are used to construct a glider vehicle.
4 Under the CAA, the EPA issues OEMs certificates of conformity, which are licenses to produce products for one
model year consistent with the vehicle description and any terms of the certificate. "Certificates of conformity are
generally issued to a group of vehicles or engines having similar design and emission characteristics," per the EPA's
2012-2013 Progress Report: Vehicle & Engine Compliance Activities, EPA-420-R-15-007. October 2015.
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U.S. House of Representatives Appropriations Committee Report for the fiscal
year (FY) 2018 Interior, Environment, and Related Agencies appropriations bill
The bill requested that the EPA study and compare the emissions impact of
remanufactured engines used in glider vehicles with the emissions impact of new
engines.3
August 17, 2017: The EPA Administrator responded to the petitioners by stating
that the EPA decided to revisit the provisions in the Phase 2 Final Rule that relate
to gliders and would develop and issue a notice of proposed rulemaking. Later in
August, EPA staff began planning for the work to support the rulemaking,
including a glider vehicle emissions testing program.
September 2017: OTAQ developed a glider
vehicle test plan for testing gliders on the EPA
laboratory's heavy-duty chassis dynamometer and
began efforts to acquire glider vehicles for testing.
According to OTAQ, the purpose of the testing was
to (1) compare testing results with the Tennessee
Tech study and support the development of a
proposed glider rulemaking, (2) respond to the
request from Congress to study emissions from
glider vehicles, and (3) provide emissions data that
could be used to update the EPA's MOVES model.
October 3, 2017: The OTAQ laboratory received
the first of two glider vehicles for testing
November 16, 2017: The EPA published a proposed rule6 repealing the emission
standards for glider vehicles established by the October 2016 Phase 2 Final Rule.
OTAQ staff did not rely on the Tennessee Tech study when developing the
proposed rule to repeal regulations for glider vehicles. The Tennessee Tech study
was never finalized, and the EPA only received partial results from the
university's testing. The EPA's stated basis for the proposed rulemaking relied
upon the interpretation of CAA Sections 202(a)(1), 216(2) and 216(3) regarding
the definition of "new motor vehicle."
While the Tennessee Tech study is referenced in Section II of the proposed
rulemaking preamble ("Background"), it is referenced as part of the petition that
the EPA received and was not used as the EPA's basis for the proposed
ailemaking (Section III of the preamble, "Basis for the Proposed Repeal"). The
proposed rule also requested comments on the "expected emissions impacts if the
The front of a heavy-duty chassis dynamometer,
(EPA OIG photo)
5 U.S. House of Representatives, Department of the Interior, Environment, and Related Agencies Appropriations
Bill, 2018, Report 115-238. page 61.
6 Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits, 82 Fed. Reg. 53442
(Nov. 16,2017).
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regulatory requirements at issue here were to be repealed or were to be left in
place."7 The proposed rule did not mention the EPA's own glider vehicle testing.
November 17, 2017: The OTAQ laboratory completed glider vehicle testing.
November 20, 2017: OTAQ finalized the glider vehicle test report. The report
showed that glider vehicles emit many times the level of pollutants over the
standards for new heavy-duty engines—contrary to conclusions from the
Tennessee Tech study. According to OTAQ, emissions from the glider vehicles
tested are consistent with those estimated by the MOVES model used to support
the Phase 2 Final Rule regulating glider vehicles. The EPA's final glider vehicle
test report was posted to the public rulemaking docket for the proposed rule
repealing emission standard for glider vehicles on November 22, 2017.
February 19, 2018: The President of Tennessee Tech sent a letter to the EPA
Administrator requesting that the EPA not use or reference the university's glider
study, pending the conclusion of a Tennessee Tech internal investigation on the
methodology and accuracy of the study.
April 2018: OTAQ staff provided a draft final rule to EPA leadership. OTAQ
transmitted the draft final rule to the EPA's Office of Air and Radiation's
Immediate Office, and then to the EPA's Office of Policy for transmittal to the
Office of Management and Budget.
June 21, 2018: The OIG received two congressional requests. The requests raised
concerns about the EPA's glider vehicle testing, including the agency's
collaboration with an OEM (Volvo), as well as the potential ethics violations of a
former EPA employee in connection with the Phase 2 Final Rule.
August 21, 2018: The Assistant Administrator for Air and Radiation responded to
a congressional request addressed to the EPA. The congressional request raised
similar concerns as those described in the June 21, 2018, letters sent to the OIG.
In its response, the EPA explained its reasons for initiating a glider vehicle test
program, why the EPA worked with Volvo to acquire glider vehicles for testing,
and that the EPA's test results from the glider vehicles were consistent with the
expected emissions performance of highway diesel engines produced without
modern emission-control technology.
October 23, 2018: Tennessee Tech completed its internal investigation of the
glider study. The investigation found that the study's field-testing procedures
were not sufficient to justify comparisons with EPA emissions standards, and the
data did not support the conclusion that remanufactured engines performed
equally as well as OEM "certified" engines.
7 Ibid., at 53447.
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As of July 2019: The EPA has not taken final action on the 2017 proposed rule
repealing the Phase 2 Final Rule emissions requirements for glider vehicles.
OTAQ staff have not been directed to work on any additional analysis supporting
a final rule. The EPA's Spring 2019 regulatory agenda lists the proposed repeal of
emission requirements for glider vehicles as a "long-term action." The OIG has an
ongoing audit related to the development of the 2017 proposed rulemaking
pertaining to glider vehicles (see Project Notification: Response to Congressional
Request on Glider Repeal Actions, Project No. OA&E-FY19-0053).
Responsible Offices
OTAQ, within the EPA's Office of Air and Radiation, develops mobile source
regulations for on-road, heavy-duty vehicles that include glider vehicles. OTAQ
also manages the EPA's National Vehicle and Fuel Emissions Laboratory, which
conducted the 2017 glider vehicle testing on the laboratory's heavy-duty chassis
dynamometer. The Air and Radiation Law Office, as well as the Ethics Office
within the EPA's Office of General Counsel, have responsibility for updating
certain CAA delegation authorities relevant to this audit. The EPA's Office of
Research and Development shares certain CAA delegation authorities with the
Office of Air and Radiation relevant to this audit.
Scope and Methodology
We conducted our audit from September 2018 to May 2019 in accordance with
generally accepted government auditing standards. Those standards require that
we plan and perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our
objectives. As noted below in our discussion on the EPA's email management
protocols, there was a potential limitation of email information available.
However, we believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
To answer our audit objectives, we analyzed key background and criteria
documents, including:
• Policies and procedures on the selection, acquisition and testing of
vehicles on the EPA's heavy-duty chassis dynamometer.
• Documents related to the planning, selection, acquisition and testing of
vehicles as part of the November 20, 2017, report (e.g., vehicle selection
methodology, testing plans).
• The utilization log and history of all vehicles tested on the heavy-duty
chassis dynamometer, including who requested the testing, the purpose of
testing, and how vehicles were selected and acquired.
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• OTAQ policies, procedures and standard practices relevant to obtaining
approval to use the EPA's laboratory to conduct testing.
• EPA guidance relevant to inserting materials into a rulemaking docket.
• FOIA regulations and the EPA's FOIA policy and procedures.
We conducted a site visit to the EPA's National Vehicle and Fuel Emissions
Laboratory in Ann Arbor, Michigan, where glider vehicle testing was performed.
We interviewed key staff and managers involved in the planning, selection and
testing of glider vehicles. We also contacted the highway heavy-duty OEMs that
the EPA contacted for assistance in acquiring in-use glider vehicles for testing.
We obtained access to the EPA's FOIA eDiscovery review system—Relativity—
which enabled us to review potentially responsive materials that the EPA
collected to respond to all glider-related FOIA requests that the agency received
as of December 2018.
To determine whether all potentially responsive materials were provided to the
EPA's FOIA personnel, we worked with the EPA's Office of Environmental
Information (now part of the Office of Mission Support) to access email accounts
of key EPA personnel involved in the EPA's glider vehicle test program and most
likely to have communications with external parties related to the glider testing.
The email accounts that the OIG reviewed included content that was in the
account at the time the Office of Environmental Information received the OIG's
email access request (August 2018), including deleted and sent/received items.
The EPA's email management protocols indicate that items in the deleted folder
are permanently deleted after 90 days and items in the junk folder are
permanently deleted after 30 days. Any emails placed in the deleted folder
90 days before the OIG requested the email account content would have been
permanently deleted.
To determine compliance, we reviewed ethics restrictions that applied to the
former OTAQ Center Director while that person was still a federal employee and
negotiating employment with a trade association. We also reviewed applicable
post-employment ethics restrictions.
Results
EPA Followed Standard Practices in Selecting and Testing Glider
Vehicles
We found that the EPA's selection and testing of glider vehicles for the
November 20, 2017, report titled Chassis Dynamometer Testing of Two Recent
Model Year Heavy-Duty On-Highway Diesel Glider Vehicles (EPA-HQ-OAR-
19-P-0252
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2014-0827-2417) were consistent with standard EPA practices and relevant
policies and procedures.
Glider Vehicle Selection
The EPA's selection of glider vehicles was consistent with the standard EPA
practice of developing selection criteria based on the goals of the test
program, as evidenced by our analysis of test plans from other testing that the
EPA has conducted on its heavy-duty chassis dynamometer. The goals of the
glider test program were to obtain a representative emission profile of glider
vehicles in order to compare results with the Tennessee Tech study and inform
the proposed rulemaking; compare those results with the emissions from new
engines, as requested by Congress; and update the EPA's MOVES model. The
EPA established test selection criteria based on those goals. The EPA's
primary criterion was testing pre-2002 engines that comprise most of the
on-road, in-use glider vehicle population. According to the EPA test report,
the glider vehicles tested contained rebuilt, pre-2002 engines.
Glider Vehicle Testing
The EPA followed standard practices for testing glider vehicles. The glider
vehicles were tested according to the protocols found in 40 CFR Part 1066,
which help ensure the repeatability and quality of the data. EPA highway
certification diesel fuel was used to test the glider vehicles (the as-received
fuel was drained), and the coolant and oil were as-received.
The OIG did not find any evidence that the development of the EPA's glider
test plan was unduly influenced by external parties. The OIG confirmed that
the types of tests conducted on glider vehicles were consistent with the types
of tests conducted on other vehicles that the EPA had tested on its heavy-duty
chassis dynamometer. As described in the November 2017 report, test
emissions from glider vehicles were compared with two other conventionally
manufactured OEM-certified tractors of similar model year, whose data were
collected by the EPA using the same test cell, test equipment and test
procedures.
One glider vehicle that the EPA tested was received with its check engine
light illuminated. The EPA diagnosed and corrected the issue. The EPA tested
the vehicle before and after the repair. According to OTAQ, this is not
uncommon when conducting in-use testing for research purposes, given that
the EPA is interested in emission rates from normal or real-world operating
vehicles. This existing condition was described in the test report.
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EPA's Acquisition of Glider Vehicles Was Consistent with CAA but
Inconsistent with Delegation of Authority Limitations
For the November 2017 report, we found that the EPA's acquisition of the glider
vehicles, with the assistance of Volvo, was consistent with the terms of
Section 104(b) of the CAA. However, the EPA did not adhere to its delegation of
authority regarding CAA Section 104(b), which places limitations on the process
for, and content of, the EPA's receipt of donations. The OIG also found that the
pertinent delegation impedes the EPA's ability to implement CAA Section 104(b)
in light of current EPA policy.
Glider Vehicle Acquisition
According to the EPA, it reached out to four diesel engine OEMs with
dealerships near the EPA's Ann Arbor laboratory for assistance in locating in-
use glider vehicles for testing. Volvo was one OEM that connected OTAQ
with a local dealership. The dealership helped to acquire the in-use glider
vehicles—that met OTAQ's selection criteria—from private owners. The
practice of using OEMs or external parties to help locate and test certain types
of vehicles is not uncommon, especially when testing is conducted for
research instead of compliance purposes. Historically, vehicles have been
purchased, leased or loaned for testing on the EPA's heavy-duty chassis
dynamometer. According to OTAQ, in-use glider vehicles make up a small
fraction of the total population of on-road, heavy-duty vehicles. Thus, it would
have been difficult to acquire glider vehicles that met testing criteria without
help from external parties.
The EPA did not compensate any party in connection with glider vehicle
testing. According to Volvo, it reimbursed the dealer for costs incurred to
make the first glider available for testing (e.g., paid for a rental truck used by
the private owner of the glider vehicle while it was being tested by the EPA).
Per Volvo, another OEM, Navistar, reimbursed the same dealer for the second
glider vehicle tested by the EPA. Section 104(b) of the CAA8 gives the EPA
the authority—in connection with conducting research related to the control of
pollution resulting from the combustion of fuels—to acquire "an interest in
lands, plants, and facilities, and other property or rights by purchase, license,
lease, or donation." (emphasis added).9 Therefore, the EPA's receipt of two
glider vehicles on a temporary basis as donations for research purposes is
consistent with the terms of Section 104(b) of the CAA.
Pursuant to ethics regulations, EPA employees generally may not solicit or
accept "gifts" (defined to include nearly anything of market value above a
nominal value) from outside sources.10 However, these regulations expressly
8 42 U.S.C. § 7404(b).
9 42 U.S.C. § 7404(b)(4).
10 5 CFR § 2635.101(b)(4) and § 2635.203(b).
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allow for the acceptance of gifts by employees the receipt of which is
specifically authorized by statute.11 Additionally, the definition of "gift"
expressly excludes from its scope items accepted by the government pursuant
to specific statutory authority.12
EPA Delegation of Authority
EPA Delegation of Authority 7-170 covers the CAA authority to accept
donated property and delegates this authority from the EPA Administrator to
the Assistant Administrator for Air and Radiation and the Assistant
Administrator for Research and Development. Delegation of Authority 7-170
also places limitations on how the donation acceptance authority may be used.
The OIG found that this Delegation of Authority impedes the ability of the
EPA to practically implement its CAA donation acceptance authority. The
Delegation of Authority states that it delegates authority "to accept donations
of the items specified at Section 104(b)(4) of the CAA including personal
property in the form of equipment."13 It also states, "Agency employees may
not directly or indirectly solicit or accept donations under CAA 104(b)(4)
from parties that EPA directly regulates ... but may respond to questions from
parties who are otherwise interested in making unsolicited donations."14 It is
unclear whether the "parties" to whom agency employees may respond refers
to all parties interested in making unsolicited donations or specifically to
parties directly regulated by the EPA, as referenced earlier in the sentence. If
the latter, given the remainder of the sentence, it is unclear what substantive
response agency employees could provide aside from a simple declination. In
either case, the delegation leaves unclear the nature of the response EPA
employees may provide. It is unclear to the OIG how external parties would
know what to donate unless the EPA informs them of its specific research
needs. Additionally, the delegation does not specify—nor did the OIG identify
any guidance on—whether a broad announcement of agency research needs
amounts to a solicitation for donation, which is prohibited under the
delegation.
Nevertheless, the EPA did not adhere to the terms of Delegation 7-170. To
exercise the donation acceptance authority, Delegation 7-170 requires that the
relevant Assistant Administrator must consult with the Director of the Office
of Administration (within the EPA's Office of Mission Support), and approval
must be obtained through the appropriate Deputy Ethics Official. OTAQ was
unable to provide the OIG with a record of the requisite consultation or the
requisite approval.
11 5 CFR § 2635.204(1).
12 5 CFR § 2635.203(b)(8).
13 Delegation of Authority 7-170(3)(a).
14 Delegation of Authority 7-170(3)(b).
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The donation authority under Section 104(b) of the CAA is framed in broad
terms (bearing none of the limitations contained in Delegation 7-170) and
creates an important exclusion to ethics gifts rules. The OIG found that the
EPA did not fully adhere to Delegation 7-170 but operated within the bounds
of Section 104(b) of the CAA. Further, the EPA's Ethics Office indicated to
the OIG that the limitations in Delegation 7-170 do not reflect current agency
policy and concurred with the OIG's analysis that the delegation should be
revised.
The EPA's Ethics Office indicated that it had no ethics concerns with how the
glider vehicles at issue were acquired. If the EPA accepts a broader range of
donations than those authorized under Delegation 7-170, the delegation and
relevant guidance should be revised to reflect current agency policy. For
example, if the EPA's research needs could be met by a broad community,
announcing these needs (i.e., what the EPA needs and when the EPA needs it)
consistent with applicable ethics rules through a more public forum, such as
the EPA's public website, could make the donation process more transparent.
Having this information available through a public forum could also address
concerns over preferential treatment and potentially give the EPA more
options to carry out its research objectives.
EPA Employees Obtained Approval and Followed Standard Practices
to Conduct Glider Vehicle Testing and Submit Test Report to
Rulemaking Docket
For the November 20, 2017, report, the OIG confirmed that EPA employees
obtained approval to conduct testing and that EPA senior leadership was briefed
on the potential for a glider vehicle test program. EPA staff received both OTAQ
Center Director (General Schedule-15 level) and Division Director (Senior
Executive Service level) approval and direction to conduct the testing.
We found that in August 2017, OTAQ staff briefed EPA senior leadership on a
potential glider emissions test program in the context of responding to petitions to
reconsider the October 2016 Phase 2 Final Rule pertaining to gliders. The briefing
also cited the U.S. House of Representatives Appropriations Committee Report
for the FY 2018 Interior, Environment, and Related Agencies appropriations bill.
The report urged the EPA to study and compare the emissions impact of
remanufactured engines used in glider vehicles with the emissions impact of new
engines.
EPA senior leaders chose not to rely on the results of the agency's glider vehicle
testing program for the 2017 repeal proposal. Instead, EPA senior leaders focused
on the issue of statutory interpretation. The OIG found that EPA employees
followed normal procedures when submitting the November 2017 glider vehicle
test report to the public rulemaking docket.
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OIG Found No Evidence That EPA Staff Deleted Materials Potentially
Responsive to FOIA Requests Within the Scope of Our Audit That
Related to Glider Vehicle Testing
OIG found no evidence that EPA staff deleted potentially responsive FOIA
materials or records within the scope of our audit that related to the glider vehicle
testing in the EPA's November 2017 report. As of December 2018, there have
been 10 FOIA requests made to the EPA related to glider vehicles. One FOIA
request has been closed; the rest are pending.15 The EPA has collected potentially
responsive material (all of which consists of emails and attachments) for these
requests through its eDiscovery Division email collection process. The EPA is in
the process of reviewing this material for responsiveness and determining whether
any FOIA exemptions apply to the responsive material.16
The OIG obtained access to the EPA's eDiscovery review system, known as
Relativity, containing potentially responsive material for all glider-related FOIAs.
In coordination with the EPA's Office of Environmental Information (now part of
the Office of Mission Support), we also obtained access to emails (as of
August 2018, including those that may have been deleted in the prior 90 days) from
key EPA personnel who were involved in the glider testing program and who may
have communicated with Volvo or other external parties regarding glider vehicle
testing (refer to "Scope and Methodology" section for more details). We compared
these emails with emails contained in the FOIA eDiscovery review system. Based
on this comparison, we determined that it is unlikely that email communications
between the EPA and Volvo, or any other external parties, were deleted, not fully
captured in the eDiscovery system or not provided to FOIA personnel.
Although the OIG cannot be completely certain that emails were not improperly
deleted (given that emails in the deleted items folder 90 days prior to the OIG's
request for the emails would have been purged), we conclude that it is unlikely
any were deleted, since we did not find any gaps in email timelines or
inconsistencies in content. We did not determine whether the materials have been
appropriately released because most of the glider-related FOIAs had not been
fully completed by the EPA as of March 2019. The OIG did not review any of the
records provided in FOIA interim responses.
OIG Did Not Identify Ethics Violations by Former OTAQ Center Director
The OIG did not identify ethics violations within the scope of our audit by a
former OTAQ Center Director. After employment at the EPA, this person began
work at a trade association whose members are impacted by the regulatory work
for which this person was responsible. Ethics restrictions applied to the former
Center Director while the person was still a federal employee and negotiating
15 As of March 2019, the EPA has partially responded to some of the pending FOIA requests.
16 FOIA establishes certain categories of information that are exempt from the mandatory disclosure requirements.
A detailed explanation of these categories is available at the FOIA.gov website.
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employment with the trade association. Post-employment ethics restrictions also
applied. In consultation with the EPA's Ethics Office, the OIG examined both
types of restrictions.
The OIG confirmed that the former employee was contacted by the trade
association about the possibility of potential employment in June 2017, after
which the employee contacted the EPA's Ethics Office for advice. The EPA's
Ethics Office provided the employee guidance on how to comply with ethics
restrictions in the context of negotiating employment while still a federal
employee. Based on our email review, we found evidence that the former Center
Director waited until after receiving ethics guidance before corresponding with
the trade association about potential employment. The OIG identified evidence
that the former Center Director followed the ethics guidance, which included
developing a recusal memo in July 2017 that explained specific circumstances
and limitations surrounding the recusal. The OIG also identified another case in
August 2017 where the former Center Director followed the ethics guidance and
the limitations described in the recusal memo.
The OIG provided the EPA's Ethics Office with the relevant facts related to our
review of compliance with post-employment restrictions, including supervisory
status, pay grade, duties, dates of employment and the approximate time frame the
former OTAQ Center Director began representing the trade association. Based on
these facts, the EPA's Ethics Office determined that no post-employment
restrictions on federal officials had been violated because the employee worked
on particular matters of general applicability while employed at the EPA (i.e.,
rulemakings related to an industry and not a specific company) and was not
representing the trade association on any specific party matter back to the
agency.17 The OIG also confirmed that, based upon the available information as
of August 2018, no post-employment restrictions on federal officials had been
violated.
We confirmed that, based upon the available information, the former Center
Director did not violate ethics restrictions while still serving as a federal employee
and negotiating employment with a potential future employer. We also
determined that, based upon the available information as of August 2018, the
former Center Director did not violate post-employment ethics restrictions.
17 The EPA Ethics Office noted that because the former Center Director was in a supervisory position, the person is
subject to the permanent restriction found at 18 U.S.C. § 207(a)(1) and the 2-year cooling-off period for supervisors
found at 18 U.S.C. § 207(a)(2). Under these provisions, the former Center Director is permanently precluded from
representing the interests of another (e.g., the trade association for which the person now works) back to the United
States by making any appearance or communication to influence any federal official in connection with any specific
party matter that the former Center Director worked on personally and substantially [pursuant to 18 U.S.C.
§ 207(a)(1)] or for 2 years on any specific party matter that was pending in the former Center Director's area of
responsibility during their last year of federal service [pursuant to 18 U.S.C. § 207(a)(2)],
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Conclusions
The EPA complied with standard practices and relevant policies and procedures
covering objectivity and integrity in planning and conducting its testing of glider
vehicles in 2017. We found that OTAQ employees obtained approval before
planning and conducting glider vehicle testing and followed normal procedures in
submitting the test report to the rulemaking docket. The OIG found no evidence
that EPA staff deleted potentially responsive FOIA materials or records related to
the EPA's 2017 glider vehicle testing. The OIG also did not identify ethics
violations within the scope of our audit by a former OTAQ Center Director.
The OIG did find that the EPA did not fully adhere to its Delegation of Authority
covering the acceptance of donated property under Section 104 of the CAA.
However, the EPA did acquire the glider vehicles consistent with the terms of
Section 104 of the CAA, which uses a broad framing to articulate the donation
acceptance authority. If the text of the delegation no longer reflects agency policy,
the delegation and relevant guidance should be revised to allow practical
implementation and to address pertinent ethics considerations.
Recommendations
We recommend that the Assistant Administrator for Air and Radiation, in
consultation with the General Counsel, the Designated Agency Ethics Official,
and the Assistant Administrator for Research and Development:
1. Revise EPA Delegation of Authority 7-170 to enable practical
implementation for the acceptance of donated property consistent with
Section 104 of the Clean Air Act and address pertinent ethics
considerations.
We recommend that the Assistant Administrator for Air and Radiation, in
consultation with the General Counsel and the Designated Agency Ethics Official:
2. Evaluate and document whether the Office of Transportation and Air
Quality needs to develop further guidance or policies to implement the
Delegation of Authority for the acceptance of donated property under
Section 104 of the Clean Air Act and, if determined necessary, develop
further guidance or policies as appropriate.
Agency Response and OIG Evaluation
The agency concurred with both recommendations and provided acceptable planned
corrective actions and milestones. Recommendations 1 and 2 are resolved with
corrective actions pending. Based on discussions with the Office of General
Counsel and the Office of Air and Radiation, we changed the action official for
Recommendation 1 to the Assistant Administrator for Air and Radiation, and we
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modified the recommendation language accordingly. The Office of Air and
Radiation subsequently provided a planned completion date for Recommendation 1
that is not reflected in its original response.
Appendix A provides the Office of Air and Radiation's original response to the
draft report. In addition, the Office of Air and Radiation provided specific
suggestions for our consideration, and we applied edits as appropriate.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Potential
Planned
Monetary
Rec.
Page
Completion
Benefits
No.
No.
Subject
Status1
Action Official
Date
(in $000s)
13 In consultation with the General Counsel, the Designated R Assistant Administrator 9/30/20
Agency Ethics Official, and the Assistant Administrator for for Air and Radiation
Research and Development, revise EPA Delegation of Authority
7-170 to enable practical implementation for the acceptance of
donated property consistent with Section 104 of the Clean Air
Act and address pertinent ethics considerations.
13 In consultation with the General Counsel and the Designated R Assistant Administrator 9/30/20
Agency Ethics Official, evaluate and document whether the for Air and Radiation
Office of Transportation and Air Quality needs to develop further
guidance or policies to implement the Delegation of Authority for
the acceptance of donated property under Section 104 of the
Clean Air Act and, if determined necessary, develop further
guidance or policies as appropriate.
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Office of Air and Radiation Response to Draft Report
¦ « UmT /IRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MlMfllAMPKM
SUBJECT; Oftsce ol Air and Radiation s Final Response to Office of Inspector Genera's report,
PI I v Oluit'r I t'hn fe Testing: Inspector iieiwrul Rvspunye to Congressional Requests
(O.A&I: 'FY,8-f)27!) ~ '
FROM: William L. Wchruin
Assistani Administrator • < '•
Office of Air and Radiation
9
TO: Ktv in Chrsslensen
Assistant Inspector (fcncrai
OtTicc of Audit and Hvaluation
Office of inspector (k-iiera!
The EPA's Office of Air and Radiation (OAR) appreciates the opportunity to review and
comment on the Office of Inspector General's (OIG) report titled EPA's Glider Vehicle Testing:
Inspector General Response to Congressional Requests1 (Draft Report).
The Clean Air Act requires the U.S. Environmental Protection Agency (EPA) to establish and
implement regulations to protect human health and the environment, including regulations to
control emissions from cars, trucks, and other mobile sources of air pollution. EPA's Office of
Transportation and Air Quality (OTAQ) within the OAR fulfills this responsibility for EPA by
setting motor vehicle emission standards and by monitoring compliance with requirements. In
order to fulfill this responsibility, and in association with regulatory actions, OTAQ tests a wide
variety of vehicles for compliance with national emissions standards at the EPA's National
Vehicle and Fuel Emissions Laboratory in Ann Arbor, Michigan.
We want to thank the OIG for their comprehensive review and are pleased that OIG has
concluded that EPA complied with standard practices and relevant policies and procedures
covering objectivity and integrity in planning and conducting its testing of the glider vehicles in
2017.
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OAR agrees with the recommendations OIG has provided in its draft report. OAR is currently
working with the Office of General Counsel and the Acting Designated Agency Ethics Official
on both of OIG's recommendations. OAR's response to OIG's OAR specific recommendation
follows.
Recommendation 1: OIG recommends that the General Counsel, in consultation with the
Designated Agency Ethics Official, the Assistant Administrator for Air and Radiation and the
Assistant Administrator for Research and Development:
Revise EPA Delegation of Authority 7-170 to enable practical implementation for the
acceptance of donated property consistent with Section 104 of the Clean Air Act and
address pertinent ethics considerations.
Response 1: OAR supports Recommendation 1 and has already begun consulting with the
Director of the Ethics Office, who is the Alternate Designated Agency Ethics Official, in support
of this recommendation. OAR acknowledges that existence of the delegation was not previously
known to current OTAQ employees and, now that we are aware of it, OTAQ also agrees that the
current delegation is impractical. We commit to work expeditiously with the Office of General
Counsel (including the media, appropriations, and ethics lawyers) to develop an Office level
policy/process and to revise the existing delegation of authority.
Recommendation 2: OIG recommends that the Assistant Administrator for Air and Radiation,
in consultation with the General Counsel and the Designated Agency Ethics Official:
Evaluate and document whether the Office of Transportation and Air Quality needs to
develop further guidance or policies to implement the Delegation of Authority for the
acceptance of donated property under Section 104 of the Clean Air Act and, if
determined necessary, develop further guidance or policies as appropriate.
Response 2: OAR agrees with this recommendation. OAR is currently working with the Office
of General Counsel and the Alternate Designated Agency Ethics Official to develop an interim
OTAQ policy/process for the acceptance of donated property under Section 104 of the Clean Air
Act. OAR also intends to finalize an office policy in conjunction with a revised delegation
memo. OAR also agrees that the current delegation is impractical and would benefit from
revision.
Planned Completion Date: OAR will implement this recommendation in three phases: 1)
develop an interim OAR/OTAQ policy in consultation with the Office of General Counsel,
including the media, appropriations attorneys, and the Acting Designated Agency Ethics
Official; 2) operate under the interim policy until a revised delegation is in place and thereafter
revise or finalize the OTAQ Office policy/process consistent with the revised delegation; 3) use
the final policy and any revised delegation to support implementation of Section 104 moving
forward. We project that this will be a two-year process. Step one will be completed by the end
of Ql, FY2020. Step two will be completed at the end of Q4, FY2020, and step three will be
ongoing.
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If you have any questions regarding this response, please contact Leila Cook, Associate Office
Director, Office of Transportation and Air Quality, at (734) 214-4820.
Cc: Betsy Shaw
Chris Grundler
Leila Cook
Bill Charmley
Mark Vincent
Eleanor Marusiak
Dave Cozad, Acting Designated Agency Ethics Official
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Appendix B
Distribution
The Administrator
Deputy Administrator
Chief of Staff
Deputy Chief of Staff
Assistant Administrator for Air and Radiation
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Assistant Administrator for Research and Development
Principal Deputy Assistant Administrator for Science and EPA Science Advisor,
Office of Research and Development
Deputy Assistant Administrator for Research and Development, Office of Research and
Development
Deputy Assistant Administrator for Management, Office of Research and Development
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Director, Office of Continuous Improvement, Office of the Administrator
Principal Deputy Assistant Administrator for Air and Radiation
Deputy Assistant Administrator for Air and Radiation
Senior Advisor to the Assistant Administrator, Office of Air and Radiation
Director, Office of Transportation and Air Quality, Office of Air and Radiation
Principal Deputy General Counsel
Deputy General Counsel and Agency Ethics Official
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of Transportation and Air Quality, Office of Air and
Radiation
Audit Follow-Up Coordinator, Office of General Counsel
Audit Follow-Up Coordinator, Office of Research and Development
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