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Published on 08/22/2005

Industry Misuses Data Quality Act to Challenge EPA Choices

Two industry groups recently filed challenges, under the Data Quality Act, against the U.S. Environmental Protection Agency's (EPA) methodological choices. Both challenges focus on evaluations of human health risks from specific chemicals. The petitions specifically question documents that address emissions of Metam Sodium, a pesticide, and Dioxin/Furan, used to produce cement. The petitions challenge EPA procedures, however, which are policy decisions made within the agency -- and not data -- and as such lie outside the scope of the Data Quality Act (DQA).

The stated purpose of the Data Quality Act is to "ensure and maximize the quality, objectivity, utility, and integrity of information disseminated." Yet, both of these challenges violate the spirit of that goal, and instead attempt to transform DQA into an avenue for industry to challenge methodology, agency judgment or choices.

Metam Sodium Challenge

The industry group Metam Sodium Alliance (MSA), comprised of three chemical companies that produce Metam Sodium, the third most widely used pesticide in the country, challenged EPA preliminary human health and ecological risk findings for the chemical. The risk assessment process allows the agency to establish guidelines and restrictions to protect workers, the general public and the environment from exposure to dangerous levels of toxic chemicals. The draft risk assessment, which the industry group has challenged, projects the need for a buffer zone during the use of this pesticide to protect communities from airborne exposure.

On June 24, MSA challenged EPA's use of the Probabilistic Exposure and Risk Model for Fumigants (PERFUM) in the agency's official Risk Assessment of Metam Sodium. The MSA asserts that the EPA should have used Fumigan Exposure Modeling System (FEMS) in the assessment. Under the PERFUM model EPA projects that a buffer zone of more than one mile is necessary to protect against human health risks due to exposure.

MSA suggest the use of the PERFUM model compromises the utility, integrity and objectivity standards of the agency's data quality guidelines with the use of the PERFUM model. Moreover, the petitioner argues that the PERFUM methodology is inadequate and limited, yet, they offer no scientific data or expert testimony to support the claim that PERFUM is inferior to FEMS. In the draft risk assessment, EPA explains its selection stating "EPA selected the PERFUM model over the other distributional models because PERFUM provides the most resolution for the acute duration of exposure, which is the key concern for these soil fumigants."

The petitioner asserts, the PERFUM-driven analysis in the current draft Risk Assessment threatens to unjustifiably, undermine the commercial viability of Metam Sodium. In response EPA has noted "that a well established process for pesticide re-registration exist." This suggests that MSA claims the FEMS model's superiority is merely an attempt to use DQA in a veiled effort to protect their commercial interest from an EPA policy with which they disapprove.

Since the Risk Assessment is in draft form and currently open for public comment, EPA forwarded the challenge to the EPA Office of Pesticide Programs (OPP) for incorporation into the docket for the metam sodium re-registration process. OPP uses a six-phase process to conduct re-registrations. As part of the six-phase review, the EPA is currently evaluating the risk assessment under the Federal Insecticide, Fungicide and Rodenticide Act. This allows the pesticide registrants and the U.S.D.A. an opportunity to review and correct errors before the risk assessment is available.

Dioxin Challenge

The second challenge, submitted by a coalition of cement kiln operators, seeks changes to an EPA report presenting a comprehensive inventory of sources and releases of dioxin-like compounds in the United States. It is generally accepted that dioxin-like compounds are among the most toxic substances released into the environment by human activities. Cement kilns, which are used to burn hazardous waste, are among the many sources of dioxin emissions.

On June, the Cement Kiln Recycling Coalition (CKRC) requested correction of information contained in the EPA’s Inventory of sources and Environmental Releases of Dioxin-Like Compounds. Specifically, CKRC believes the External Review Draft incorrectly estimates the amount of dioxins that Hazardous Waste Combuster (HWC) cement kilns emit each year. The report estimates that HWCs emit 68.40 grams of dioxins per year and are responsible for 4.47% of annual dioxin emissions in the United States. In contrast, another EPA report finalized in 1999 calculates dioxin/furan emissions from HWC cement kilns at approximately 13.1 grams per year. CKRC challenges the External Review Draft's use of estimated emissions factors instead of the actual emissions data collected in the 1999 report. The group had requested that EPA replace the "estimated" emissions data replaced by actual data collected by the EPA's Office of Solid Waste.

More importantly, CKRC is asking the EPA to circumvent its own policies and make corrections to the External Review Draft immediately. The agency is currently accepting feedback on the draft during a public comment period. However, the industry association claims the current data makes them vulnerable to special interest groups. CKRC states: "that correction of this fundamental error through the regular comment process will not be sufficiently timely to protect the interests of CKRC's members." Their petition goes on to say, "Interest groups, particularly those inclined to oppose energy recovery in cement kilns, often promote their goals by trumpeting negative allegations about cement kilns." To date, the EPA has not issued a response to CKRC's challenge.

Both challenges question the methodology and policy choices made by EPA rather than data. The CKRC does contain some data specific arguments but they are used to launch a broader attack on the policy decision by EPA to emphasize dioxin/furan emissions. Both challenges also demonstrate the duplicative nature of the data quality act as they both address documents that currently have comments processes open to receive any data complaints or feedback.