ACC Files DQA RfC on EPA Pthalate CAP

by Matt Shudtz

July 01, 2010

With the strong support of their new Administrator, last year the EPA staff who administer TSCA came up with a novel idea for jump-starting a moribund regulatory program. They started publishing Chemical Action Plans (CAPs) for a selection of chemicals “that pose a concern to the public.” Having selected chemicals that are found in consumer products, produced in large volumes, have particular concerns for children’s health, or meet other criteria, EPA staff published action plans for the chemicals that provide a clear and concise profile of each chemicals’ hazards, exposures, and risks and lay out regulatory actions EPA might take in the near future. The documents are truly excellent pieces of work in that they provide a summary of complex and controversial science within the context of the agency’s duties and powers under existing law, and they do so without getting bogged down in scientific or legal minutae.

But now activists with the American Chemistry Council (ACC) have resurrected the wasteful practice of filing Requests for Correction under the Data Quality Act, this time (pdf) in response to EPA’s action plan for phthalates (pdf), proving once again that ACC will harass EPA for taking even the smallest steps.

The RfC alleges that the action plan contains “numerous factual errors” and that it therefore “fails to meet the requisite standard for objectivity.”  A majority of their complaints focus on elements of EPA’s summary of potential hazards and routes of exposure, generally faulting EPA for not including references to studies that may provide evidence that would lessen the agency’s concerns. The general perspective underscores the real point of debate that ACC has manufactured with its RfC: What degree of precision is appropriate for EPA’s action plans?

Obviously, ACC wants a full accounting of every study that could shed light on phthalates’ toxicity. In their words: “The accuracy of the information presented in the Plan is commensurate to the scientific integrity of EPA’s potential subsequent actions and the regulatory message these actions convey to the market place and general public.” Translated more clearly: “A full account of the uncertainties about phthalates’ toxicity will ensure that everyone ignores the action plan and our members can continue business as usual.”

EPA has taken a different approach—one that strikes a precautionary balance. At the earliest stages of the regulatory process, EPA is opting for simplified discussion of staff scientists’ concerns, leaving more detailed analysis of all the evidence until the regulatory staff have to make specific risk management decisions.

So here we have another example of why the DQA is one of the most insidious tools for anti-regulatory activists. The complaints filed under its provisions aren't really about accuracy. For example, ACC complains that EPA made an inaccurate statement regarding potential phthalate exposures in car interiors. To support their argument, ACC cites a study by Australia’s Commonwealth Scientific and Industrial Research Organization that did not find any phthalates in the interior of three cars. What ACC fails to note is that the researchers do not appear to have actually tested the air for phthalates – the reported results cited by ACC only mention testing for volatile organic compounds. Different sampling methods and analytical techniques would have had to have been applied to actually find any phthalates.

Instead of being about accuracy or objectivity or reliability, DQA complaints are just tools for slowing the regulatory process and creating disincentives for federal agencies to release information that might help the public make its own decisions about risks. Someone at EPA (more likely, several someones) will have to spend a few days or weeks rebutting ACC’s arguments and dealing with the inevitable appeal when the RfC is rejected. And now that Jim Tozzi and the CRE are back in the business of sowing seeds of confusion about the judicial reviewability of the DQA (clarified here – it’s not judicially reviewable), this could drag on for months.

It just goes to show, when you’re a government agency tasked with protecting the public, no good deed goes unpunished.

(PS- Since ACC was nice enough to out them in the RfC, here’s the list of corporations that are using consumers’ money to foot the bill for this effort to stop EPA from protecting public health and the environment: BASF Corporation, Eastman Chemical Company, ExxonMobil Chemical Company, Ferro Corporation, and Teknor Apex Company.)

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Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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