EPA Petitioned To Defend Data Underlying Key Regulatory Decisions

Posted: July 12, 2010

EPA is facing a trio of petitions from industry and other private groups asking the agency to review and justify under the Data Quality Act (DQA) the science underpinning recent agency decisions on chemical and lead safety and the greenhouse gas impacts of coal ash reuse -- the first of what are expected to be a host of petitions EPA will face over data quality concerns.

Over the past few weeks, the paint industry has asked EPA and the Department of Housing & Urban Development (HUD) to amend a public service announcement (PSA) campaign about lead poisoning in housing built prior to 1978; the chemical industry is asking EPA to correct a number of "factual errors" in the agency's chemical action plan for phthalates; and a group representing government whistleblowers is requesting that EPA to correct information on alleged greenhouse gas (GHG) emissions reductions resulting from beneficial reuse of coal combustion waste (CCW).

EPA has acknowledged receipt of the three petitions and has a goal of responding to all petitions within 90 days, according to the agency's website.

While the petitions are the first of what are expected to be a host of additional petitions the agency is likely to face, the petitioners may have limited opportunity to enforce any requests as questions remain about whether DQA requests are subject to judicial review, although supporters of the law say a recent court ruling could pave the way to court oversight.

The DQA generally requires EPA and other federal agencies to ensure that scientific and other data used to develop policy stances are objective, reproducible and peer-reviewed. The law requires agencies to accept and respond to petitions to correct allegedly flawed data used in rulemakings and other decisions.

But absent judicial review, the pace of DQA petitions has slowed. Prior to the most recent three, the last petition filed was one from the National Association of Manufacturers in 2009, which challenged the science behind EPA's nitrogen dioxide (NO2) air quality standard.

Over the past few months, EPA has been facing growing calls from from industry, GOP lawmakers and the White House budget office to apply strict DQA requirements to agency science, a push that could make it difficult for the agency to use some scientific data to justify stringent new chemical safety, cleanup and climate policy decisions.

Among the agency actions expected to be targeted by industry are pending risk assessments for ubiquitous contaminants such as arsenic and trichloroethylene -- assessments that will drive cleanup and other regulatory standards. House Republicans are also calling for EPA to subject its pending assessment of climate change risks -- a key driver for EPA climate rules -- to DQA requirements.

Judicial Review Of Data Quality

But the U.S. Court of Appeals for the 4th Circuit ruled in 2006 in Salt Institute v. Leavitt that DQA petitions are not subject to judicial review -- and proponents of the statute have since struggled to reverse that precedent. Proponents of the law say a recent ruling in the D.C. Circuit may have opened the door to judicial review. The D.C. Circuit May 10 denied a Justice Department petition in Prime Time Int'l Co. v. Vilsack asking the court to clarify that a ruling in the suit did not address whether the DQA creates judicially enforceable rights.

While critics say the D.C. Circuit ruling does not set any new precedent, supporters are already citing the ruling to press EPA and other agencies to respond to pending petitions.

The Association of Battery Recyclers (ABR) is citing the Prime Time decision in a July 7 letter to EPA requesting a response to a 2008 DQA petition that seeks to block EPA's use of a study on the effects of low-level exposures to lead in its air quality standard.

EPA has thus far declined to respond to the petition because of litigation, but that was resolved last May, the letter says. "Thus, EPA's continued delay in considering and responding to ABR's [petition] is without any justification, particularly in light of the court's decision in Prime Time, which recognized that agencies had an obligation to follow the procedures of the [DQA] guidelines," the letter says.

Industry says the order could also bolster a pending appeal in the 9th Circuit, Americans for Safe Access v. Department of Health & Human Services (HHS), where medical marijuana advocates are arguing that federal health agencies violated the DQA for failing to rely on sound science in determining that the drug has no medicinal value.

Despite the legal uncertainty, groups have begun filing new petitions. The American Chemistry Council (ACC) recently filed a petition asking EPA to correct a number of "factual errors" in the agency's chemical action plan for phthalates, which was issued last December. The plans outline actions the agency plans to take, including rulemakings, to deal with chemicals of concern.

In the request, the ACC questions EPA's discussion of "phthalate syndrome," or effects on the reproductive system; references to other adverse effects, such as shortened pregnancy and lower sperm quality; and the explanation of the six phthalate bans included in the Consumer Product Safety Commission Improvement Act. ACC says EPA did not distinguish between the three phthalates the law banned in children's products and three phthalates subject to a provisional ban pending a new risk assessment.

"The accuracy of the information presented in the plan is commensurate to the scientific integrity of EPA's potential subsequent actions and the regulatory message these actions convey to the market place and general public," according to the ACC petition.

But the Center for Progressive Reform, which supports stronger regulatory protections, says in a July 1 blog post that petitions like the ACC request "are just tools for slowing the regulatory process and creating disincentives for federal agencies to release information that might help the public make its own decisions about risks," rather than accuracy. "Someone at EPA . . . will have to spend a few days or weeks rebutting ACC's arguments and dealing with the inevitable appeal when the [request] is rejected," the post says.

PEER Petition

In addition to the industry requests, whistleblower group Public Employees for Environmental Responsibility (PEER) filed a July 1 DQA petition asking EPA to rescind and correct information about alleged GHG emissions reductions from beneficial reuse of coal combustion waste, which the agency had posted on its website promoting its voluntary industry partnership to promote coal waste reuse, known as the Coal Combustion Product Partnership (C2P2).

According to the request, PEER wants EPA to undertake a new peer-reviewed assessment on the lifecycle GHGs from coal waste byproducts and reuse, and publicly release the data underlying that assessment.

In the wake of the petition, EPA has suspended C2P2 as it re-evaluates the program. EPA July 2 took down the C2P2 website and replaced it with a note that says, "The Coal Combustion Products Partnerships (C2P2) program Web pages have been removed while the program is being re-evaluated." An EPA spokeswoman did not respond to questions about what the re-evaluation entails.

PEER has also sent EPA Administrator Lisa Jackson a July 7 letter questioning whether EPA should be promoting coal waste even as it considers first-time regulations for the waste. "At the very least, EPA should also undertake formal consideration of the conflict between its role as a regulatory agency and the role of a promotional partner with the coal ash industry for combustion waste products over which it has regulatory purview," the letter says.

Meanwhile, the American Coatings Association (ACA) last month filed a DQA request with EPA and HUD in an effort to stop the agencies from participating in an "ill-conceived and falsely depicted, prejudicial and counter-productive" PSA campaign about lead poisoning in housing built prior to 1978.

The ACA request says the ads -- which depict orange and white paint substituted for orange juice and milk in a child's food in an attempt to explain the dangers of home-based lead poisoning -- violate Office of Management & Budget (OMB) data quality guidelines, which ask agencies to avoid using the internet to increase "the potential harm that can result from the dissemination of information that that does not meed basic information quality guidelines," according to the guidelines cited in the letter.

Among other things, the group alleges the ads overstate the number of children potentially exposed to harmful levels of lead in paint and misstates the pathway by which lead poisoning occurs. "The Lead PSA 'increases the potential harm' by transmitting a picture which connotes a gross misunderstanding and misperception of how lead poisoning actually occurs and how parents, guardians and pregnant women can take steps to avoid dangerous exposure on behalf of their children's health and safety," the letter says.

The group filed the petition after EPA rejected an earlier informal complaint about the ad. "We are confident that the general public understands that the campaign targets old lead paint. All of the statistics and claims made in the PSAs are factually accurate, and each of the advertisements attributes lead poisoning to homes built before 1978," EPA says.

ACA says this "curt" response does not allow for informal consultation to discuss the possibility of "revamping" the ad's concept with either ACA and other groups that have objected, including the Grocery Manufacturers Association and the dairy industry.