Data Quality Update: Court Decision Appealed
by Guest Blogger, 1/24/2005
In a Jan. 14 news release, the Salt Institute announced that it would appeal the dismissal of its data quality case against the National Heart Lung and Blood Institute (NHLBI). The Salt Institute along with the U.S. Chamber of Commerce had filed suit against NHLBI claiming that statements made by the agency about health benefits from lower sodium diets did not comply with the Data Quality Act. However, U.S. District Court for the Eastern District of Virginia dismissed the case Nov. 15, 2004, ruling that the Data Quality Act (DQA) was not judicially reviewable and that the plaintiffs lacked legal standing to bring the lawsuit. The Salt Institute and the U.S. Chamber of Commerce have decided to appeal these rulings in an attempt to reinstate their case against NHLBI. “Our appeal is for more transparency in the use of science,” claimed Richard L. Hanneman, President of the Salt Institute, “and we are asking the court to banish the games-playing and data manipulation that has compromised implementation of the Data Quality Act by the National Heart, Lung and Blood Institute.” Dissecting a Data Quality Challenge The Center for Progressive Regulation (CPR) recently sent letters to the Environmental Protection Agency (EPA) and Office of Information and Regulatory Affairs (OIRA) as well as Dow, Exxon, Shell, Ethyl and Clean Harbors Environmental Services corporations regarding contamination at the Devil’s Swamp Superfund site near Baton Rouge Louisiana. In 2004, after years of deliberation, the site was proposed for inclusion on Superfund’s National Priorities List. However, NPC Services, a corporation formed by numerous chemical and oil companies to clean up hazardous waste sites, opposed the listing by submitting a data quality challenge to EPA. The agency elected to consider the data quality petition a part of NPC Services’ public comments in response to the site’s listing. CPR’s letters voice concerns that the data quality challenge and EPA’s decision to handle them as additional comments could further delay action to finally cleanup the hazardous waste site. EPA stated that the issues brought up in the challenge are delaying the listing. The letters also request that EPA and the companies address the issue of subsistence fishermen living near the site and provide alternative food supplies while cleanup is pending. CPR also urged EPA and OIRA to issue guidance barring the application of the DQA to rulemakings. Congress Seeks Additional Information on DQA On Jan 13, Rep. Joe Barton (R-TX), Chairman of the House Energy and Commerce Committee, sent letters to 15 federal agencies and commissions requesting information on the implementation of the DQA. Barton explained that the request was to help the committee “assess directly whether the agencies are implementing and following data-quality procedures as Congress intended.” However, the lack of any hearings or floor debate on DQA coupled with the meager ten lines of legislative language that comprise the act give little indication of Congress’s intention for the DQA. The committee also seeks to examine the general impact and effectiveness of DQA requirements. The letter requested answers to nine detailed questions about implementation of the DQA from January 2001 to the present. Unfortunately, the questions deal almost entirely with procedure and policy, including requests for job titles of those responsible for overseeing DQA and copies of internal memoranda. None of the questions address concerns about abuse of the DQA process by industry to further delay that development of rules and regulations. Nor do any of the questions request estimations of cost or time spent by the agencies and commissions implementing the DQA so that the committee could evaluate the effectiveness of the act. In one interesting question Barton asks the agencies to “describe and explain your agency’s position regarding the potentially available appellate avenues, including administrative hearings and the federal court system, as a means of petitioners to appeal agency decisions relating to DQA.” However, the federal courts, not agencies, decide whether an issue may be heard and as noted above the courts have already ruled that the DQA is not judicially reviewable. Barton instructed the agencies and commission to provide the requested documents and answers by Jan. 28, giving the agencies only two weeks to gather the information.