New Law Could Cloud Access to EPA Information
Joseph A. Davis

Over the next few months, a potentially
landmark battle over EPA’s ability to disseminate
information -- and the press’s
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 EPA’s
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.

OMB’s application of the law has been spearheaded 
by John D. Graham, head of OMB’s Office of 
Information and Regulatory Affairs (OIRA). As 
interpreted by Graham’s 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 OMB’s 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 OMB’s
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 public’s 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 OMB’s guidelines.

OMB’s guidelines cover any kinds of information in many
media, such as Toxic Release Inventory Data and EPA’s 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 OMB’s 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 Act’s 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.