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Freedom of Information

Industry Test-Fires New Secrecy Weapon
by Joseph A. Davis

Environmentalists’ concerns about anti-regulatory uses of the new federal Data Quality Act heightened quickly after it took effect in November 2002, and industry groups began using it to suppress availability of health information release of which they say could threaten
profits.

The Act - a few lines slipped quietly into the fiscal 2001 appropriations bill - allows affected parties to challenge the accuracy of information and demand a "correction.

Environmental journalists, like others, value accuracy. But some fear the Data Quality Act could be applied in ways that would make it hard for reporters who depend on public or published government information sources to do their jobs.

If anyone thought the Data Quality Act would be used just by bean counters to quibble over typos and misplaced decimals, they have already been proven wrong. Major industry groups have signaled that they plan to use it to replace the scientific peer-review process and withhold from release information about risks to public health.

If trends hold, it may become a central battleground for a reshaping or repeal of environmental laws and regulations. It may also become a strategic key in re-arguing central policy debates over the government’s role in informing people about potential health risks presented by industry, agriculture, and others.

A case in point was a petition filed November 25, 2002, by the Center for Regulatory Effectiveness (CRE), a specialized lobbying/law firm, on behalf of the Kansas Corn Growers Association and the Triazine Network. It challenged EPA’s published reference to a scientific study suggesting that atrazine, a weed-killer used widely on corn and soybeans in the Midwest, had endocrine-disrupting effects on frogs. (Petition: http://www.thecre.com/pdf/petitionatrazine2B.pdf)

Atrazine, among the nation’s most widely used herbicide, finds its way into the drinking water of millions of Midwesterners in trace quantities as it runs from fields or seeps into groundwater. According to EPA, atrazine has a number of acute and chronic harmful
health effects (including cancer) on people who ingest it in large enough quantities or over a long enough period of time. In 1992, EPA set a regulatory limit (mcl) of 3 parts per billion of atrazine in drinking water, on a yearly average, requiring utilities to notify the
public via newspapers, radio, and TV if their drinking water exceeded that level. (EPA Fact Sheet: http://www.epa.gov/safewater/dwh/c-soc/atrazine.html)

There has been considerable study and debate among scientists over atrazine’s health effects. After EPA had originally classified it as a likely human carcinogen, an EPA Scientific Advisory Panel recommended in June 2000 that atrazine be reclassified as "not likely" to be a human carcinogen on the grounds that there was "not enough
information" to classify it as a likely carcinogen.

But industry, it seemed, had been working hard to ensure that there also was not enough information.

The Natural Resources Defense Council (NRDC) has charged that Swiss-owned Syngenta, the largest atrazine manufacturer, was withholding two key studies from EPA at the time that the science panel was debating atrazine’s status. One was an internal study tracking
excess prostate cancers among atrazine workers at Syngenta’s St. Gabriel, Louisiana, production plant. The other was a Syngentafunded study of atrazine-related frog deformities by a Berkeley professor, Tyrone Hayes. Hayes eventually finished the work without Syngenta funds and published the results in the April 16, 2002, edition
of the Proceedings of the National Academy of Sciences. (NRDC Release: http://www.nrdc.org/health/pesticides/natrazine.asp; Hayes Article: http://www.pnas.org/cgi/content/abstract/99/8/5476

The CRE challenge is not an abstract or purely scientific one. Atrazine, like many other pesticides, is currently before EPA for reregistration, and the outcome of this process depends on formal assessments of health risks. CRE challenged EPA’s dissemination of a portion of its official Environmental Risk Assessment for Atrazine.

It specifically called into question Hayes’ study on frogs. Under a consent decree with NRDC, EPA must issue an interim registration decision on atrazine in January 2003.

But the CRE challenge also has a broader sweep: It asserts that the government may neither publish nor use scientific studies until government validation protocols are finalized. It would substitute for the prevailing standard of independent peer review by the scientific
community a process controlled by the White House Office of Management and Budget.

Moreover, restating an old argument in a long-running environmental policy debate, it attempts to shift the burden of proof from those producing potentially harmful products to those trying to protect public health. In the name of "data quality," it argues that any
pesticide that cannot be proven toxic beyond the toughest standard of doubt must be officially declared entirely safe.

CRE’s move has major potential as a precedent. CRE head Jim Tozzi, for years a Washington environmental lobbyist after having long served as head of OMB’s Office of Information and Regulatory Affairs, was also a major behind-the-scenes architect of the Data Quality Act, which now places major control over data quality decisions
with OMB.

Tozzi has signaled his intent to use Data Quality as a policy weapon by, among other things, his early call for withdrawal - un-publishing - of the U.S. National Assessment on climate change completed during the late Clinton years.

In another action filed November 6, 2002, just days after the Data Quality Act took effect, CRE challenged the National Highway Traffic Safety Administration’s collection from car-makers of customer complaints of vehicle defects that could result in recalls.

And at a November 20, 2002, public meeting of the Chemical Safety and Hazard Investigation Board (CSB), lawyers for Georgia-Pacific and the American Forest and Paper Association threatened a data-quality challenge to the board’s report on a hydrogen sulfide
leak that killed two at a Georgia-Pacific mill in Pennington, Alabama.

The board is supposed to provide rigorous independent chemical accident investigations that, at least in theory, are immune from politics, like those of the National Transportation Safety Board which investigates airplane accidents.

The CSB has no regulatory authority. But its findings in the Georgia-Pacific case will be influential because the Occupational Safety and Health Administration is poised to begin regulating a new class of "reactive," chemicals, of which hydrogen sulfide is an example.
Reactive chemicals may pose risks not only to workers, but also to surrounding communities.