Data Quality Act One Way to Challenge EPA's ‘Flawed‘ Use of Science, Lawyer Says
SAN FRANCISCO—The Data Quality Act is one possible mechanism that affected parties can use to challenge the Environmental Protection Agency's “flawed” use of science in its regulatory programs, an attorney told a conference May 18.
”Something is terribly amiss” with EPA's use of science and risk assessment, the basis of which is the agency's Integrated Risk Information System to determine the carcinogenic and noncarcinogenic risks posed by hazardous chemicals, said Karl Bourdeau, a lawyer with Beveridge & Diamond PC.
Bourdeau spoke at a conference on sustainable property transactions sponsored by RTM Communications Inc. and BNA.
While IRIS is not a regulatory program, it is used to develop regulations and remediation cleanup standards, including those at some brownfields sites, Bourdeau said. The system also plays a major role in public perception of risk, he said.
The Data Quality Act, which was included as a rider to the fiscal year 2011 omnibus spending bill (Public L. No. 106-554), is increasingly being used to challenge determinations made under IRIS that cannot otherwise be easily challenged, he said.
Also known as the Data Quality Act, the act directs the White House Office of Management and Budget to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.”
Successful Challenges Difficult
Since IRIS assessments are not regulations subject to formal notice, comment, and agency response requirements under the Administrative Procedure Act or “final agency action” subject to judicial review, mounting successful challenges to IRIS assessments can prove to be a “daunting” task, Bourdeau said.
Parties concerned with EPA's use of science have increasingly turned to the Data Quality Act to challenge what they consider to be fundamentally flawed analyses of available scientific information, he said.
Based on the OMB guidelines required by the act, each federal agency has issued its own guidelines to “maximize information quality,” Bourdeau said.
Although called “guidelines,” both OMB and the D.C. Circuit Court have reminded agencies that these guidelines are binding upon them, Bourdeau said. The guidelines contain administrative mechanisms by which affected parties can seek correction of information considered inconsistent with information quality standards, he said.
“Notably, heightened standards exist for ‘influential scientific information,’ which has been defined by EPA in a manner that would encompass virtually every IRIS assessment,” he said.
“Although no court has yet decided that judicial review is available of adverse agency [Data Quality Act] determinations in response to administrative corrective petitions, the availability of such review remains an open question,” Bourdeau said.