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Date: January 11, 2008 -

Environmentalists are taking the rare step of using the Data Quality Act (DQA) -- a law that activists often criticize as a tool for industry to challenge and weaken EPA rules -- in an attempt to block the agency from finalizing a proposal they say would lead to weaker emissions controls at refineries.

The move is one of just a handful of DQA petitions filed by public interest groups since the law came into effect in 2001, and one informed source says it may also mark the first time a petition under the law is challenging an agency’s reliance on industry data, rather than an agency’s own generated data. EPA in its refinery air toxics proposal relied heavily on emissions data voluntarily submitted by industry.

“The environmental community doesn’t want to credit this ghastly legislation more than it deserves,” one environmentalist says, but adds that because the law “on its face is a neutral tool,” critics of EPA’s proposal can use it to seek alternative data that they believe will demand a stricter air toxics rule.

At issue is EPA’s review of its 1995 national emission standards for hazardous air pollutants (NESHAP) from petroleum refineries. In a Sept. 4 Federal Register notice, the agency proposed one option saying that no new emission controls on refineries are necessary because the public health risks from refineries pose a 70-in-1-million risk of cancer, which the agency calls acceptable.

The proposal sparked outcry from state officials and environmentalists because it marked a significant increase in EPA’s threshold for acceptable cancer risk. Traditionally, EPA defined acceptable risk as 1-in-1-million but the proposal raises that to 100-in-1-million. The agency claims it has leeway under the Clean Air Act (CAA) to decide on the acceptable risk threshold for rulemakings.

Activists have long charged that the air act requires EPA to determine whether the existing NESHAP reduced the lifetime “residual risk” from refinery emissions to less than 1-in-1-million, and if not, then must EPA require better emission control measures to reduce the risk to below that threshold.

EPA calculated its assessment of the health risks based on data from the 2002 National Emissions Inventory, a database of voluntarily reported emissions data, with some additional data provided by the American Petroleum Institute. Critics charge that the CAA requires the agency to gather its own data to discover what refineries are emitting, rather than rely on estimates provided by industry.

The Environmental Integrity Project (EIP) has such overriding concerns with the data used to calculate the risks from refineries that in its recent comments to the agency on the NESHAP proposal it officially petitions EPA under the DQA “to obtain the information necessary to conduct a comprehensive and legally and scientifically sound risk assessment.” Relevant documents are available on

The DQA allows parties to challenge the quality and accuracy of information released by the government, including statements and other findings issued by EPA. The law was passed as part of the fiscal year 2001 Treasury Department appropriations law.

EIP counsel Benjamin Wakefield wrote in the group’s Dec. 28 comments on the NESHAP, “The objective of the current ‘residual risk’ determination is to ascertain the residual risk from petroleum refineries, and the admittedly incomplete and untrustworthy data upon which the risk analysis is based simply does not meet the requirements of the DQA and its implementing guidelines.”

EIP’s petition marks a rare push by environmentalists to use the controversial law to support a challenge to an agency proposal. Until now, public interest groups -- most notably among them OMB Watch -- have opposed the data law as a political lightning rod that allows industry and business groups to press EPA to justify scientific foundations that provide the basis for new regulations.

For example, in an Aug. 28 report, OMB Watch found a disproportionate number of industry DQA challenges to the quality of information publicized by the National Toxicology Program. The report called for reforms of the law, calling it a favored industry tool.

And powerful House Oversight Committee Chairman Henry Waxman (D-CA) said in October 2006 that a Government Accountability Office investigation “shows that these data challenges can consume significant agency resources, and more often than not these challenges are deemed unwarranted.” Waxman said agencies’ time spent responding to DQA petitions “is time stolen from the agencies’ primary missions.”

The environmentalist says that the law “on its face is a neutral tool so it’s fair game for both sides” but says that because its primary purpose is to allow groups to challenge information relied upon to issue new federal rules, “it’s a tool for obstruction and delay, which is why industry uses it.”

The source says that “there may be some apparent tension” in EIP’s use of a law long attacked by environmentalists, but adds “I don’t think so in truth.” The source says that where the legislation can be of benefit in challenging weak agency rules it could be used successfully by public interest groups.

For example, EPA will likely ultimately respond to the DQA petition and if it does not agree to new information gathering to conduct a new risk assessment for the refinery NESHAP, it will have to give its reasons. Environmentalists can then cite those reasons in any lawsuit they may bring against the air toxics rule should the agency ultimately finalize it without collecting new data, the source says.

The informed source adds another outcome if EIP’s petition is successful is that commenters on future agency proposals who want to provide potentially influential data to agencies “will have to do a DQA check before they submit information to the government, just as the government has to do before it releases information, under the pre-dissemination review requirements of the DQA.”

Several sources also cite previous, though rare, examples of public interest groups using the DQA to challenge what they see as weak agency actions based on poor data.

The Environmental Working Group in December 2003 wrote to the Food and Drug Administration (FDA) invoking the law in an attempt to tighten an EPA-FDA draft health advisory urging pregnant woman and children to limit their intake of tuna because of high mercury content. That effort prompted some outcry from other activists, with one source from another environmental group saying at the time, “If environmental groups like ours were to use [the law], then it legitimizes it.”

The informed source says that public interest groups are “using [the DQA] more and more.” The source adds that EIP’s decision to challenge the industry-submitted data in the EPA refinery air toxics proposal marks “if not the first then one of the more significant challenges [under the DQA] of industry data used by an agency. Until now, it’s been government promulgated data” that groups have challenged under the law, the source says.

But environmentalist sources say that although public interest groups have used the DQA in isolated instances to challenge agencies’ data, many environmental groups remain hesitant to raise data quality arguments out of fear that it would lend credibility to a law that many activists say is aimed at halting regulations.

Despite EIP’s use of the DQA to challenge the refinery air toxics proposal, the environmentalist concludes that the law remains “dreadful legislation and should be repealed.” -- Anthony Lacey

Source: Inside EPA via

Date: January 11, 2008

Issue: Vol. 29, No. 2

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