Maryland Bar Bulletin
Publications : Bar Bulletin : June 2005


 Bar Bulletin Focus

Enviromental Law    

"Bad Science" in State Regulations
May Come Under Federal Data Quality Scrutiny
By Randall M. Lutz and Susan M. Euteneuer

Should environmental regulations be based upon a solid scientific foundation and reliable data before they become final and have the “force and effect” of law? There have been dramatic movements recently to ensure that “bad science” does not govern the regulation of the nation’s industries. Naturally, the issue has become politicized and the battle lines have been drawn between environmental activists and business interests.

Environmentalists fear that requiring environmental regulations to undergo more scrutiny will be used by industry for unduly delaying regulations necessary to protect the public health and environment. Industry argues that regulations cannot be based on speculative science or faulty data. The political debate rages today as strongly as ever, especially since the passage of the federal Data Quality Objectives Act (DQOA) in 2000. Organizations and websites created to address the issue are embroiled in endless debate.

The DQOA is a two-sentence mandate snuck into the fiscal year 2001 federal appropriations bill as a rider. It simply requires the Office of Management and Budget (OMB) to adopt mandatory guidance requiring each federal agency to adopt formal guidelines to ensure that information “disseminated” by that agency meets certain data-quality criteria for quality, objectivity, utility and integrity. The OMB adopted its guidance on January 3, 2002. The Environmental Protection Agency (EPA) followed with its “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by the Environmental Protection Agency”.

This law has created a new ground for challenging federal regulations. It also can be the basis to challenge some state rules and regulatory actions under federally-delegated environmental programs. Under the DQOA, rules can be challenged directly or indirectly.

A direct challenge involves the filing of a Request for Correction with the agency, which can be filed at any time. Scores of Requests for Correction have been filed with various federal agencies; the EPA is the most popular recipient.

Under the DQOA, in late 2003 a challenge was made to the EPA’s distribution of the “Gold Book”, a 1986 brochure warning of the dangers of asbestos to brake-repair mechanics. Another challenge was filed against the EPA’s ban on using third-party clinical human test data in risk analysis. Another was filed to require the EPA to amend its Global Warming Website to rectify allegedly misleading and incorrect data. These are the tip of the iceberg.

Because federal regulations are required to be published (“disseminated”), regulations are subject to DQOA scrutiny. To the extent a state needs to obtain EPA approval for a state rule, and EPA rules require notice before its approval, a state rule can become the subject of DQOA scrutiny. An ongoing challenge over new state rules limiting the solvent content in paint is a good example.

Ground-level ozone (“smog”) has been a persistent problem in the Northeast. A swath of territory from northern Virginia through Maine, encompassing a large segment of the U.S. population, is and has been “non-attainment” for ozone. In 1990, Congress created the Ozone Transport Commission (OTC), made up of appointed representatives (mostly State Air Directors) from each of those states, to recommend pollution mitigation strategies by each of the member states.

Although volatile organic compound (VOC) emissions from solvents in paints and coatings is relatively small (around 3 percent of total VOC emissions from all sources), the OTC has recommended that each member state adopt rules more strict than the federal rule under the Clean Air Act lowering the solvent content for paints sold in each state for each of the 40-some paint categories. The industry says that under the new lower VOC rules, two categories (varnishes and indoor stains) will not perform for the purposes intended. Under the new rules, those popular hardwood floors may become a relic of the past in the Northeast.

The industry argues the rule will not help solve the smog problems because the impact is low and that the rule does not consider the fact that some solvents are more reactive than others and cause ozone formation at a smaller mass. After scrutinizing the science and data behind the OTC Rule, it was found that the data upon which the rule is based was severely-flawed, it cannot be reproduced and the methodology is anything but transparent. An alternative method was found for predicting emission reductions under the OTC Rule based on better and more reliable data, which predicted almost twice the VOC emission reductions.

After filing a Request for Correction, DQOA comments to the proposed state implementation plan revisions, requests for reconsideration and Petitions for Review of the rules in the Third and Second Circuit U.S. Courts of Appeal, the EPA finally agreed that the alternative methodology could be used to calculate emission credits.

The tentacles of the DQOA reach much farther than federal regulations, especially in the environmental context where federal delegation permits states to act with federal oversight. To the extent the EPA disseminates and needs to approve state regulatory actions, there may be additional grounds to challenge state action through the DQOA.

Randall M. Lutz is a Member of the law firm of Hodes, Ulman, Pessin & Katz, P.A., where he concentrates his practice in the areas of environmental and health care law. Susan M. Euteneuer is an associate with the firm, practicing in the areas of insurance, litigation and environmental law.