New Law Could Cloud Access to EPA Information Joseph A. Davis Over the next few months, a potentially landmark battle over EPAís ability to disseminate information -- and the pressís ease of access to it -- may be won or lost in legal wrangling while the environmental media pay scant attention. The so-called "Data Quality Act" (not an official title), an industry-written rider slipped almost unnoticed and without hearings into a massive last-minute omnibus appropriation bill more that a year ago, is said to be aimed at "ensuring and maximizing the quality, objectivity, utility, and integrity of information" disseminated by all federal agencies. But environmentalists, progressive activists, and open-government advocates worry that it will give industry a virtual veto over much of what EPA and other federal health and safety agencies publish. They fear it will create a new layer of litigation that will prevent EPA from issuing regulations aimed at protecting public health. The law takes effect on October 1, 2002. That is also to be the date EPA finalizes its guidelines for carrying out the new law. After a period for public comment on draft EPA guidelines, slated to end June 14, the struggle over how to implement the law will go behind the scenes in the so-called ex parte stage of rulemaking. Most of the basic background documents on the law can be found on EPAís Web site (http://www.epa.gov/oei/quality guidelines/). The underlying 27 lines of legislative language are in section 515 of P.L.106-554, the Treasury Appropriations bill for fiscal 2001. The provision was included with little fanfare or apparent Congressional attention in an omnibus funding bill cleared by Congress December 15, 2000, and signed by President Clinton six days later. The Office of Management and Budget (OMB), given authority to carry out the law, published proposed guidelines for federal agencies in the Federal Register June 28, 2001, and finalized them February 22, 2002 (67 Fed. Reg. 8452). EPA proposed its own guidelines in February and has been accepting comments since then. OMBís application of the law has been spearheaded by John D. Graham, head of OMBís Office of Information and Regulatory Affairs (OIRA). As interpreted by Grahamís guidelines, the law requires agencies to establish administrative mechanisms "allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency" if it does not meet OMBís quality guidelines. But the Data Quality Act is about more than fixing typos and misplaced decimals. One of the chief proponents of the Data Quality Act has been Jim J. Tozzi, who himself headed OMBís OIRA at a time when Washington insiders considered him to be among the most influential people in the United State in shaping federal environmental policy. He now heads the Center for Regulatory Effectiveness as a well-connected industry lobbyist and one widely known to be working behind the scenes. OMB guidelines go beyond the explicit requirements of the law by requiring agency information to meet OMB quality standards before it is disseminated. Because EPA publishes a bulletin listing forthcoming "information products," outside interests could delay publication by raising objections. But OMP may also interpret the Act to require some agencies to "unpublish" some documents. That seems to be the intention of Tozzi, a principle architect of the law. In a February 11, 2002, letter to the White House, Tozzi cited the Data Quality Act, which has not yet taken effect, in demanding withdrawal of the peer-reviewed, Clinton-era Climate Change Impacts on the United States, known as the "National Assessment." The whole subject had gotten little visibility until March 21, 2002, with a front page story in The New York Times by Andrew C. Rivkin. He quoted James M. Jeffords (I-VT), chairman of the Senate Environment Committee, who said, "Opponents of gov-ernment action to protect the publicís health and the environment have latched onto the Data Quality Act and are attempting to misuse it to prevent the public from getting valid information about threats to their well being and quality of life." While few question that agencies should correct errors and publish accurate information, a major battle looms over interpretation of the law. Industry commentators have already hammered EPA for its interpretation of OMBís guidelines. OMBís guidelines cover any kinds of information in many media, such as Toxic Release Inventory Data and EPAís Web site. They specifically exempt press releases, hyperlinks, or unofficial information or opinion marked with disclaimers. They also exempt information provided in response to requests from the press or public under the Freedom of Information Act, the Privacy Act, or the Federal Advisory Committees Act. OMB has taken a hard line on some points allowing, for example, that industry lobbyists might claim, or agency bureaucrats decide, that they did not consider the information to be of high enough quality just because it had been published in a peer-reviewed scientific journal. EPA, while hewing to the letter of OMBís guidelines, has cut itself considerable slack in its own proposed guidelines, noting that they do not have the effect of regulation and are not legally enforceable. Some of the key points in the coming debate will include the following: - whether and how the guidelines apply to information from states, companies, and others outside EPA; - the process for resolving complaints and appeals of initial agency decisions and how much time those decisions would take; - whether, when, and how agency decisions on data quality could be reviewed by courts; - whether and how the new guidelines would supplant of du-plicate the extensive data-quality, peer-reviews, and error-correction programs already in place at EPA; - whether and how the data quality review process meshes with existing environmental law and the law and procedures governing regulatory activity, such as the Administrative Procedures Act; - and to what degree do the guidelines apply not just to factual and numerical data, but to the analysis and interpretation of that information and agency decisions about what constitutes an acceptable level of risk to public health and the environment. While the Data Quality Act nominally applies to all government agencies, the industry groups behind it have been especially focused on applying it to environmental information and EPA. OMB guidelines specifically cite and apply quality principles set in the 1996 Safe Drinking Water Act Amendments to "analysis of risks to human health, safety, and the environment." That law calls for EPA to base decisions on "the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices." OMB adds: "Agencies responsible for dissemination of vital health and medical information shall interpret the reproducibility and peer-review standards in a manner assuring the timely flow of vital information... to medical providers, patients, health agencies, and the public." In the name of transparency and objectivity, OMB guidelines require experts conducting peer-review to disclose to the agency prior technical and policy positions they may have taken on the issues at hand, and also their personal and professional financial data. The OMB guidelines do not require persons or groups filing complaints about data quality to make similar disclosures. Nor do they impose any requirements on the quality of data about their own activities which companies report to EPA. The National Academy of Sciences, which held a public workshop March 21 to examine the Actís implications for science, expects to issue a report on it during the summer. The Environmental Council of the States is expected to hold a forum on the information guidelines in July.