Member Pipeline - Legal - January/February 2003 Legal Perspectives
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Printer friendly versionVolume II, Issue 1 |
Winter 2003 |
“The collection, use, and dissemination of information of known and appropriate quality is integral to ensuring that EPA achieves its mission . . .These Guidelines describe EPA’s policy and procedures for reviewing and substantiating the quality of information before EPA disseminates it.”
EPA Information Quality Guidelines, 67 Fed. Reg. 63,657 (Oct. 15, 2002)
The U.S. Environmental Protection Agency (EPA or Agency) is a primary source of environmental and human health information for the public, governmental agencies, and regulated industries. Today’s technology allows EPA information to reach extensive audiences more easily, more quickly, and in more useful forms than ever before. The wide range of uses for EPA disseminated information makes it essential that the material is accurate, and that procedures exist to correct informational and data errors. It also is paramount that publicly-owned treatment works (POTWs) are aware of the procedures that exist to correct inaccurate EPA information.
To assure that government agencies disseminate information responsibly and accurately, Congress passed Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001, now known as the Information (or Data) Quality Act (IQA or Act). 44 U.S.C. § 3516 historical note. This issue of Legal Perspectives provides an overview of the IQA; reviews the Office of Management and Budget’s (OMB’s) IQA guidelines for federal agencies; discusses EPA’s recent IQA activities; and assesses how POTWs can use EPA’s IQA guidelines to address erroneous Agency information.
IQA Overview
The IQA sets out a number of significant requirements in less than one page of text amending the Paperwork Reduction Act. 44 U.S.C. § 35. The IQA directed OMB to develop guidance by September 30, 2001 for it and other federal agencies to follow to ensure the quality, objectivity, utility, and integrity of disseminated information. By October 1, 2002, each federal agency was to use the OMB guidelines to create agency-specific procedures to assure information quality, and administrative mechanisms for parties to correct inaccurate information. Agencies are required to report periodically to OMB on the number and nature of information complaints received, and on how the complaints were handled. The first such reports are due January 1, 2004.OMB’s Information Quality Guidelines
After receiving public comment on several drafts, OMB published final information quality guidelines for federal agencies in September 2001 (66 Fed. Reg. 49,719; corrections at 67 Fed. Reg. 8,452). OMB’s guidelines establish a baseline performance goal of high quality in all agency information “dissemination” to the public, including via print, electronic means, or other forms.OMB calls for even greater quality assurance efforts when agencies disseminate “influential scientific or statistical information,” defined as information that will substantially impact important public policies or private sector decisions. OMB urges enough transparency in the information and methods underlying influential scientific information to allow it to be reproduced by qualified third parties. Notably, the guidelines include a rebuttable presumption that data subjected to formal, independent, external peer review are sufficiently objective.
In addition to the required administrative procedures for information correction, OMB’s guidelines include a further process for parties to appeal denied information correction requests. This appeals mechanism, while not required by Congress in the IQA, offers at least one additional avenue of relief to parties with information concerns.
EPA’s Approach to Information Quality
Based on OMB’s recommendations, EPA developed its information quality guidelines through public comment and finalized them in October 2002. 67 Fed. Reg. 63,657. EPA’s guidelines apply whenever the Agency prepares and distributes information to support its views on regulations, guidance, decisions, or policy positions.EPA also will apply the guidelines to information prepared by outside parties if EPA’s distribution suggests that the Agency agrees with the information, or if EPA will use the information to support a regulation, guidance, or policy decision. Information voluntarily submitted by third parties will be subject to EPA’s guidelines as well, if the Agency may use the data in a policy decision.
The application of EPA’s data quality guidelines to information submitted by third parties may require POTWs to adopt more rigorous quality procedures when developing material and studies to submit to EPA. Despite the additional burdens this may create, applying information quality principles to such data could stem criticism that the information POTWs generate is biased or not objective. EPA presently is developing “assessment factors” that will govern its evaluation of third party data quality. AMSA will keep a close watch over EPA’s development of the assessment factors to learn how the IQA ultimately will apply to the information POTWs provide to EPA.
In the case of risk assessments – which are often highly controversial information sources – EPA will follow a “weight-of-evidence approach” and will consider “all relevant information” consistent with the complexity of the particular assessment. To better assure quality in human health and environmental risk assessments specifically, EPA will follow an adaptation of the quality principles outlined in the Safe Drinking Water Act Amendments of 1996. 42 U.S.C § 300g-1(b)(3)(A)-(B). These principles emphasize EPA’s use of reliable and unbiased science, and promote comprehensive and understandable presentation of risk information to the public.
Correcting EPA Information
EPA’s guidelines include the IQA required administrative mechanisms for filing Requests for Correction (RFC) of information. POTWs may wish to avail themselves of the RFC process to correct information in an EPA database, report, or study. A POTW filing a RFC must show how the information falls short of the EPA or OMB guidelines, and also recommend how the error can be corrected. EPA will respond to RFCs within 90 days, and will establish schedules for any appropriate corrections.Generally, EPA will not consider RFCs that could have been submitted as timely comments in a rulemaking or other action where public comment was offered. Thus, POTWs will have to be sure to raise any information quality concerns in their comments in the growing number of cases where EPA offers public comment – such as on rules, guidance, and even policies.
A POTW dissatisfied with EPA’s RFC response may file a Request for Reconsideration (RFR). RFRs will be reviewed by an executive panel of high level EPA information officials. Importantly, EPA will not remove the information in question from public access during the RFC or RFR phases, nor will it identify the data as being in dispute. Consequently, inaccurate information could be publicly available for an extensive period of time.
To date, three RFC petitions have been filed with EPA – none by POTWs. EPA denied the first petition requesting that EPA correct risk information for barium. In February, EPA addressed the majority of concerns raised by a second petition concerning EPA’s atrazine risk assessment. A third petition awaiting EPA action seeks correction of October 2002 Science Advisory Board meeting minutes. These early uses of the RFC process give a sense of the types of information errors the IQA will be used to address.
Judicial Review Unresolved
The IQA does not include a judicial review provision allowing a party to bring legal action over an information quality complaint unsatisfactorily resolved by an agency. Whether a specific provision for judicial review is needed for a court to review IQA disagreements is an unresolved question. One key issue to be addressed in judicial review is whether a government report or website is a “final agency action” subject to review under the Administrative Procedures Act. 5 U.S.C §§ 551-702. At least one court recently found that an EPA report is not final agency action. Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA, 313 F.3d 852 (4th Cir. 2002).Another issue to be resolved is how an IQA aggrieved party would meet standing requirements to bring suit. A party must show an “injury in fact,” and mere fear of future adverse consequences from an EPA report or data release may not satisfy increasingly stringent standing tests.
Judicial review certainly would strengthen the IQA, and enhance its ultimate usefulness in the future. The results of the first few attempts to bring IQA disagreements to the courts will say much about whether the IQA has the teeth to force EPA to correct information.
The IQA and POTWs . . . Going Forward
In light of its relatively new status, it will take some time to fully determine how helpful the IQA will be for POTWs. Given EPA’s position that data quality concerns must be raised during public comment when such opportunities are available, the IQA may not be of great use in many of the EPA actions in which POTWs usually participate – such as regulatory, policy, and guidance development – which tend to be accompanied by some public comment process.In the end, the IQA may prove most useful as a tool to correct erroneous information contained in EPA released reports, studies, or public information tools that generally support the Agency’s activities and mission. For example, EPA’s new Enforcement and Compliance History On-Line (ECHO) website may offer an excellent opportunity to raise IQA concerns to the Agency in the near future (www.epa.gov/echo). ECHO comments are due to EPA by March 31. Many AMSA members have found significant errors in the information posted about their facilities on the ECHO site. The site contains a mechanism to report errors. The true test of how deeply EPA has embraced information quality, however, will be shown in its record addressing ECHO and other such correction reports.
© 2003 Association of Metropolitan Sewerage Agencies
Legal Perspectives is a publication of the Association of Metropolitan Sewerage Agencies (AMSA).
Founded in 1970, AMSA represents nearly 300 of the nation's POTWs. AMSA members serve the majority of the U.S. sewered population and collectively treat and reclaim over 18 billion gallons of wastewater every day.We welcome your comments on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, AMSA at adunn@amsa-cleanwater.org 202/533-1803.