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'Data Quality' Law Is Nemesis Of Regulation

OMB staff members have been providing "extensive assistance to agencies in preparing responses to correction requests," Graham acknowledged. "OMB oversight is critical to make sure that agencies handle these requests in a diligent and consistent manner," he said.

Graham said the OMB's unprecedented foray into science is justified in part because the data in question often serve as a foundation for costly regulation, which the OMB oversees. To fulfill the new role, Graham hired the OMB's first nine career scientists, including six with PhDs.


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.
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Data Quality Act
_____More From Series_____
Bush Forces a Shift In Regulatory Thrust (The Washington Post, Aug 15, 2004)
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About This Series

Sunday

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.

Today

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.

Tuesday

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.

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The Data Quality Act, or at least something like it, "was absolutely needed," said Horner of the Competitive Enterprise Institute.

Yet Steinzor, the Maryland environmental lawyer, and other critics complain that the OMB's involvement politicizes the process. The expertise of the handful of scientists hired by Graham, they say, cannot match that of the thousands of experts on agency staffs.

And while Graham said the OMB still supports weight-of-the-evidence analyses, Steinzor and others contend that the Data Quality Act inherently focuses on individual snippets of data -- each of which is inevitably open to criticism -- instead of on overarching bodies of evidence.

"You can get lost in the minutiae, and that's exactly where they want you to go," Steinzor said. "They just pick, pick, pick, until you're so addled you can't protect people or the environment."

A Tool for Decreasing Regulation

A few environmental and public interest groups have tried to use the Data Quality Act. Public Employees for Environmental Responsibility, a Washington-based group that helps federal scientists who believe their data are being suppressed, has filed three petitions under the act.

One challenged the credibility of a Defense Department document supporting a proposed Army Corps of Engineers project; one contended that the Fish and Wildlife Service had made selective use of data to conclude that hunters should be allowed to shoot rare trumpeter swans; and one charged that Fish and Wildlife had used unsound science to develop "an inadequate recovery plan" for the Florida panther.

"I'm not sure it is the sharpest tool in the environmental toolbox, but at least it is a tool," said executive director Jeff Ruch, adding that the swan petition lost and the other two are still under review.

Many citizen groups and environmental activists believe the Data Quality Act will always be more useful to those seeking to decrease government regulation. Newly proposed regulations must be justified with evidence, they note, and the act is designed specifically to challenge such evidence.

"What it really can do best is slow the regulatory process," said Sean Moulton, a senior policy analyst with OMB Watch, a government watchdog group. "And even a simple delay of a rule can mean a huge financial windfall for an industry."

In the first 20 months, a handful of petitions -- all from industry -- have been at least partly successful. In one, the Competitive Enterprise Institute had wording added to a multi-agency federal climate change report stating that the report's findings did not meet Data Quality Act standards.

In another, a law firm with corporate clients in asbestos litigation got the EPA to agree to make changes in its booklet that offers warnings and safety advice to brake mechanics.

Yet another, filed by a group that receives funding from the conservative Scaife Foundation, succeeded in getting the National Institutes of Health to downgrade warnings about the effects of smokeless tobacco. And then there was the atrazine challenge.

'Manufacturing Uncertainty'

That petition, filed by Tozzi, made a two-pronged attack on the effort to regulate atrazine more stringently. The first was to claim that the evidence for atrazine's gender-bending effects in frogs was not fully reproduced by other Syngenta-funded EcoRisk scientists. The second was to claim that the EPA did not have the proper test to prove atrazine had ill effects.

Tozzi said reliance on irreproducible results would violate the Data Quality Act because information that is not reproducible is "not accurate, reliable or useful."

As evidence of irreproducibility, he pointed to the dozen or so studies sponsored by Syngenta in addition to Hayes's study. An independent panel of experts convened by the EPA had already expressed exasperation over the conflicting results and mistakes they found in the design and implementation of those studies.

In at least two of the studies the "control" frogs that were supposed to be atrazine-free were later found to have been in water contaminated with atrazine, an error the scientists said was unintentional. Another set of Syngenta studies was found to be unreliable because 80 to 90 percent of the animals died, apparently as a result of inadequate care.

Essentially what Syngenta-funded scientists did "was produce a number of studies that were purposefully flawed and misleading, and that changed the weight of the evidence," Hayes said.

While the EPA review also found some flaws in Hayes's studies, his conclusions have been echoed by at least four other independent research teams in three countries.


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