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'Data Quality' Law Is Nemesis Of Regulation

A special EPA science panel would eventually level stinging criticisms at those studies for their poor design and sloppy implementation. Still, the conflicting results left the atrazine question at a standoff. That is when the company turned to the Data Quality Act -- and Jim J. Tozzi.

'Working the Regulatory Process'

Syngenta could not have found a better advocate. Tozzi wrote the Data Quality Act and arranged for its congressional passage after the 2000 elections.

Scientist Tyrone B. Hayes found that even very small amounts of atrazine had a "demasculinizing" effect on tadpoles. (University Of California At Berkeley)

_____Assailing EPA Science_____
Timeline: Recommended study of effects on humans of weedkiller atrazine -- which is thought to scramble hormones in frogs and cause cancer in rats -- is held up by regulatory process.
Data Quality Act
_____More From Series_____
Bush Forces a Shift In Regulatory Thrust (The Washington Post, Aug 15, 2004)
_____About This Series_____
About This Series


An Agency Takes a Turn

Under President Bush, the Occupational Safety and Health Administration has made sometimes subtle changes in regulations that carry large consequences for workers and employers. Across the government, the Bush administration has started fewer regulations and killed more of the proposals Bush inherited than two predecessors.


A Policy Puts Science on Trial

A last-minute addition to an unrelated piece of legislation has created a tool for attacking the science used by federal agencies as a basis for new regulations. Industry has embraced the Data Quality Act to challenge 32 major proposals, including a successful assault on efforts to restrict the use of the herbicide atrazine.


A Word Accelerates Mountaintop Mining

By changing the word "waste" to "fill" in a regulation covering coal mining, Bush appointees have allowed an increase in the destruction of mountaintops in Appalachia.

_____Regulations on the Web_____
Government Printing Office provides the text of rules.
The Federal Register lists new rules and proposals daily.
The General Accounting Office offers cost-benefit analyses of major rules.
OMB Watch is a public interest group that monitors the Office of Management and Budget.
The Mercatus Center at George Mason University provides conservative analysis of rules.
Regulation.org is the conservative Heritage Foundation's rules site.
The AEI-Brookings Joint Center for Regulatory Studies offers scholary rules analysis, including its $100 Million Club.
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Today he is a Washington lobbyist and head of the Center for Regulatory Effectiveness, a watchdog group that specializes in data quality. Tozzi does not reveal his center's contributors, and the atrazine petition he filed does not have Syngenta's name on it. The petition names only the Kansas Corn Growers Association and the Triazine Network, a coalition formed in 1995 to defend atrazine and related herbicides. But Pastoor, Syngenta's head of human safety, said the company helped finance the petition process through contributions to another of Tozzi's businesses, a lobbying firm called Multinational Business Services.

Tozzi is "the master craftsman when it comes to working the regulatory process," said Ken Cook of the Washington-based Environmental Working Group. "He knows where the sensitive spots are and where to press and leave no fingerprints."

Once a self-described "bottom-tier" musician on the steamy New Orleans jazz circuit, Tozzi earned a degree in economics and rose to OMB deputy administrator under Ronald Reagan. Under his directorship, the OMB's Office of Information and Regulatory Affairs was the gatekeeper for virtually all proposed regulations dealing with public health and safety. It quickly became known as a bureaucratic "black hole," where proposed regulations went in for review and never came out, said Joan Claybrook, president of Public Citizen, a Washington-based consumer advocacy group.

Tozzi was at the OMB when evidence arose in the 1980s that giving aspirin to children with flu symptoms increased the risk of Reye's syndrome, a potentially fatal complication. A federal health agency recommended that aspirin containers bear warnings, but Tozzi said he was not satisfied the evidence was good enough. It took years for activists and Congress to force the labeling issue -- years in which almost 200 children died of Reye's. Today, with labeling, the syndrome is extremely rare.

After leaving the government, Tozzi helped Philip Morris fight mounting evidence of the dangers of secondhand cigarette smoke. That is when he pioneered the tactic of attacking the science behind proposed regulations.

"The argument that it costs too much to protect people does not sell," said Thomas O. McGarity, a professor at the University of Texas Law School in Austin and president of the Washington-based Center for Progressive Regulation, a network of academics that supports regulatory action to protect health, safety and the environment. "But what does sell is this idea that the science is not good."

Science is ever evolving and often hobbled by uncertainty, but policymakers have long recognized this and relied on weight-of-evidence arguments in making regulations, according to McGarity, other activists and Clinton administration officials. They point out that DDT was banned despite lingering doubts about its role in the decline of birds. Many other substances, including vinyl chloride and asbestos, also were regulated before their full effects were known.

Tozzi, believing that the regulatory bar was too low, tried repeatedly to get Congress to pass legislation that would make it easier to challenge the science used to underpin regulations. Then, unable to receive broad congressional support, he crafted legislative language himself and gave it to Rep. Jo Ann Emerson (R-Mo.), a former lobbyist and onetime deputy director of communications for the National Republican Congressional Committee. The wording -- two sentences of 32 short lines -- directed the OMB to issue guidelines "ensuring and maximizing the quality, objectivity, utility, and integrity of information . . . disseminated by Federal agencies."

Emerson slipped the sentences into the 712-page Treasury and General Government Appropriations Act, which became the coming year's omnibus spending bill. Under pressure to wrap up the long-delayed budget, President Bill Clinton signed the huge bill on Dec. 21, 2000, nine days after the Supreme Court ruled that George W. Bush was to be the next president. It is not clear whether anyone in Congress other than Emerson and Sen. Richard C. Shelby (R-Ala.) knew about the buried language.

"We sandwiched this in between Jerry Ford's library and something else," Tozzi said. "Was it something that did not have hearings? Yes. Is it something that keeps me awake at night? No. Is it something that I would do again, exactly? Yes, you bet your ass I would. I would not even think about it, okay? Sometimes you get the monkey, and sometimes the monkey gets you."

Tozzi found even more reason to rejoice as Bush made a pivotal appointment to head the OIRA, Tozzi's old domain within OMB that would now handle data quality: John Graham, a risk-assessment specialist with a history of close ties to regulated industries.

"John Graham came in, and he did an unbelievable job," Tozzi said. "Better than I could have done had I been there myself."

Politicizing the Process

Graham had been the head of Harvard's Center for Risk Analysis, an institution funded primarily by contributions from more than 100 industry and trade association donors. While there, he had amassed a reputation as a skilled critic of the cost of regulation.

In one analysis, conducted with funding from the auto industry, he concluded that it would be a mistake to require side air bags in cars because they would cost $400,000 for every year of life saved. Independent experts reviewing his work found that the figure was actually about $60,000, and Graham had to rewrite his article -- and change his conclusion -- before it could be published in a prestigious medical journal.

When Bush nominated Graham to head the OIRA, many citizen and environmental groups vehemently objected and more than one-third of the Senate voted no. In his first few months, Graham sent many near-final regulations back to the agencies that had proposed them, often saying he was not convinced they were worth the cost.

Then he turned to the job of implementing the Data Quality Act.

By the fall of 2001, Graham's office had published detailed guidelines for implementing the act. A year later, federal agencies started accepting petitions requesting that they withdraw information that allegedly did not meet OMB standards for "quality, objectivity, utility, and integrity."

Individual agencies are responsible for reviewing the challenged data and deciding whether they are indeed reliable. But the OMB, a part of the White House, oversees the process closely -- through involvement in the agencies' deliberations and by demanding annual reports describing how agencies dealt with each petition.

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