Platinum Industry Association Responds to My Critique of Their DQA Complaint

Shortly after my August 5th post criticizing their Data Quality Act complaint to EPA, the International Platinum Group Metals Association sent me a kindly-written response letter (Inside EPA recently reported on the letter). Accusing me of both missing the point of their complaint and brushing aside important scientific concerns to make a headline-grabbing call for “over-regulation,” IPA reiterated their concern that EPA’s draft IRIS assessment for halogenated platinum salts fails to meet DQA standards. Their letter is an eloquently-written piece of advocacy, but it provides no information to alter my analysis that their complaint falls squarely within the realm of “frivolous” claims that EPA has the discretion to decline to review.

To recap, both OMB’s government-wide guidelines and EPA’s own internal rules for dealing with DQA complaints (both Bush-era creations) allow the agency to decline to review “frivolous” complaints, such as those “for which a response would be duplicative.” As evidenced by the IRISTrack listing for the document at issue here and the express assurances of Paul Anastas to Rep. Ed Whitfield in a July 29 letter, IRIS staff are tantalizingly close to publishing a final draft of the platinum salts IRIS profile. When it is finalized, the IRIS profile will surely address IPA’s concerns, given that they have been voiced on multiple prior occasions during the IRIS assessment process by both IPA and members of EPA’s external peer review team (pdf). EPA should decline to review this redundant/duplicative/frivolous DQA complaint.

IPA claims I’m missing the point, arguing:

The goal is to fix the problem earlier rather than later, so that the proposed inhalation reference concentration no longer sits on so ephemeral a foundation when it goes for final review. And the timing and form of the remaining review process are themselves open to question. With no hard deadline for issuing the final report, the information reflecting the error is still out there, and as no rulemaking is involved, there are no standards governing the attention given to public comments on the draft.

I’m fully aware of what IPA is trying to do, which is to press EPA to issue another draft document that reflects their view of the science, but I see the real point as being a much bigger issue—one that goes well beyond just a single data point in one particular IRIS profile. If EPA engaged in reviewing this sort of DQA complaint, it would open the door to a never-ending cascade of similar complaints at every stage of the rulemaking process, for every document that EPA publishes. It would give potentially regulated industries the power to essentially grind the EPA’s work to a halt. And it directly contravenes the point of the Administrative Procedure Act’s balanced approach to rulemaking, which promotes public participation while allowing agencies to set boundaries on the process.

I’m all for good scientific rationale to support EPA rules. But I’m also for getting things done. An IRIS profile isn’t an enforceable regulatory standard, it’s just a building block (albeit a very important one—the cornerstone, perhaps). Any enforceable standard that might follow from the publication of an IRIS profile will go through multiple rounds of scientific, economic, and political review, so the IPA can rest assured that their concerns will be heard many more times.

IPA continues to harp on the idea that:

publishing a flawed draft IRIS document for two and a half years is neither a neutral nor a meaningless act, draft or not. With the prestige of EPA behind it, even in “draft” form, and the hardening of public perception over time, it is disingenuous to claim that the 1 pg/m3 RfC is not highly influential scientific information or that EPA is not disseminating it, and widely.

The question of whether the draft IRIS document is “highly influential scientific information” is beside the point; and the broad dissemination is an effort to get good public input, not some strategy for hidden regulation. It’s worth noting that IPA hasn’t pointed to any specific consequences of the draft having stayed in draft form for the last two years. But more importantly, even if it were finalized without a single change: (1) there would be multiple opportunities for public comment before any enforceable regulatory requirements are ever finalized; and (2) a different EPA office will make any regulatory decisions, based on statutory requirements and public policies that invariably lead to standards that are different from IRIS numbers.

EPA has declined to review (pdf) environmentalists’ DQA complaints in the past when the agency determined that a response would have been duplicative of ongoing notice-and-comment proceedings. It should do the same for IPA’s request.