EPA Warning on Asbestos is Under Attack
ANDREW SCHNEIDER / St. Louis Post-Dispatch 25oct03
The federal government's 17-year effort to warn backyard and professional mechanics of the dangers of cancer-causing asbestos in brakes is under attack.
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Morgan, Lewis & Bockius LLP |
The international law firm of Morgan, Lewis & Bockius has petitioned the Environmental Protection Agency to stop distributing warning booklets, posters and videotapes that give mechanics guidance on the need to protect themselves from asbestos. The 10-page petition called the science on which the material was based unproven and irrational.
The firm said the EPA's guidance for mechanics had been used to support thousands of personal injury lawsuits brought against hundreds of American companies by mechanics. The suits involving the auto workers alleged they were sickened or killed by exposure to asbestos in brakes.
The firm refused repeated requests to identify its client in the effort to stop the booklets, but it has represented at least one major asbestos firm and two insurance companies involved in asbestos litigation.
The lawyers took their action under an obscure law passed in 2001 called the Data Quality Act [see below]. It demands that government agencies work with the White House's Office of Management and Budget to establish a process that permits "affected persons" to challenge information gathered and disseminated by the government.
Rep. Jo Ann Emerson, R-Mo., said she introduced the four-paragraph measure as a rider to an appropriation bill "to ensure accountability to the taxpayer." Emerson's staff said the language for the law came from Jim Tozzi. He is the director of the Center for Regulatory Effectiveness, an industry-funded group scrutinizing government regulations. Tozzi worked for the Office of Management and Budget during the Nixon, Ford, Carter and Reagan administrations.
Still a threat
Court filings and public health surveys indicate that thousands of auto workers are diagnosed each year with asbestos-related diseases, such as mesothelioma, lung cancer and asbestosis. Few mechanics take protective measures when working with brakes - mainly, they say, because they believe asbestos is no longer present.
They are wrong. Although the major car makers say they no longer use asbestos, the brakes on many older cars contain the fibers. More than $124 million worth of asbestos brake material was imported into the United States last year. Thus, the potential danger will exist for decades as replacement brakes containing asbestos continue to be put on vehicles.
The Post-Dispatch talked to about two dozen St. Louis mechanics or garage managers. All but two said that asbestos had been banned and is no longer in brakes.
Leaving no fingerprints
Dr. Sidney Shapiro, a law professor at the University of Kansas who has written and lectured on the value and danger of the information act, said he is concerned that "the legislation opens the door for corporations and trade associations to attack any scientific information that EPA makes public, and asbestos is a fine example." Shapiro is with the Center for Progressive Regulation, a group that examines regulations on environmental and consumer interests.
He added: "The act is also a great tool for OMB to try to influence policy because their involvement won't leave any fingerprints."
The White House is already being heavily criticized by some lawmakers for its Council on Environmental Quality, which guides the president on environmental issues, and allegations that the Office of Management and Budget is influencing the actions of the EPA. The budget agency counters that it doesn't meddle in the agency's Data Quality Act decisions.
"The Act itself places us in a broad oversight role but does not specify how the OMB-agency relationship should be handled," said a senior OMB official. "OMB has encouraged agencies to consult with us before they respond. However, it is the agencies that decide how to respond."
The Gold Book
The law firm, based in Philadelphia, says the dire warnings regarding asbestos exposure have no scientific basis. It has demanded that the EPA renounce years of extensive studies that state otherwise.
The main target in their petition is a thin gold-colored EPA pamphlet titled "Guidance for Preventing Asbestos Disease Among Auto Mechanics." Tens of thousands of copies of the Gold Book and other asbestos warning material have been distributed to schools, garages, auto dealers and unions since they were first published 17 years ago.
For two years in the mid-'80s, the EPA and asbestos experts from the Occupational Safety and Health Administration gathered extensive research on exposure to mechanics from leading government and civilian scientists.
The petition says that the EPA has it all wrong and that brake repair work is safe.
"The continuing availability of the Gold Book, and its alarmist and inflammatory tone continues to hinder a fair-minded assessment of the hazards, if any, imposed to users of asbestos-containing friction products," the petition states.
Steve Johnson, the acting deputy administrator of the EPA, said the Gold Book was being revised before the petition arrived, but he insisted that the science upon which the guide was based was "solid" and "we stand by it today." Over the past few years, "we've learned a great deal more about asbestos and its dangers, which are significant," Johnson said. "We are looking at all of our asbestos programs to ensure that they reflect the latest information on the hazards."
Johnson said he wasn't permitted to discuss the EPA's position on the petition but said a decision would be made by Nov. 24.
Thousands of suits
The lawyers said they are concerned about what happens in court.
"In the highly charged environment of such litigation, the Gold Book has been used to try to sway jurors, who are told that it represents EPA's current position and thinking on the question of whether asbestos-containing friction products are dangerous to users.
"Outside the courtroom," the petition reads, "continuing availability of the Gold Book, and its alarmist and inflammatory tone, hinders a fair-minded assessment of the hazards, if any, posed to users of asbestos containing friction material."
Ernie Conry, a retired mechanic, is involved in a suit. He is sick. He has mesothelioma, a fast-killing form of cancer caused only by exposure to asbestos. It usually is fatal within eight to 10 months. It has been 22 months since his doctor diagnosed the disease.
"I'm lucky. Very lucky," said Conry, 70. "My younger brother had mesothelioma from the Navy, and he died 12 months to the day from when he was told he had the disease. Just wasted away."
For a man told he only had months to live, Conry looked healthy. He held up an X-ray of his lungs and ran a weathered finger along the gray shadow of the fast-spreading tumor. He doesn't need to look at the X-ray. The pain reminds him that he's sick all the time, he said.
Conry worked on brakes in various Ford garages in St. Louis. He said he was never told to wear a respirator or to be cautious. His blue eyes sparkle with anger when he speaks of never being told about asbestos in brakes.
"Nobody told us then and no one is telling the guys changing brakes today they had better be careful because they may be covering themselves with asbestos in the dust from the brakes," Conry said. "It's like a secret. A deadly secret."
He prints up his own fliers warning of the dangers and hands them out at union halls and in gas stations. He admits that few take it seriously.
"If I can just save one guy, one other human from suffering the pain that I live with, then it's worth it," he said and paused for a moment. "But you know, they don't really believe me."
On Thursday morning, Bob Wind was hammering loose a brake drum from a 1996 Ford Escort at B&B Muffler & Service at Chippewa Street and Nebraska Avenue. Black dust and grime covered his clothes and the floor beneath the car. There was no visual way to tell whether the dust contained asbestos. "You just can't get away from the dust. It's everywhere: your hair, your nose, your eyes," Wind said.
He was surprised to learn that some brakes still contained asbestos. "I thought it was outlawed years ago," said the mechanic. "I've never seen anyone wear a mask in a garage. Never."
Wind was amazed when a Post-Dispatch photographer showed him a box of replacement brakes in his own storeroom that said "Caution. Contains Asbestos Fibers."
"I just can't believe it," he said squinting to read the small type. Another box said "100 percent asbestos free." But on the back of the box, in even smaller type, was written: "Product may contain a chemical fiber know to the state of California to cause cancer."
Who protects the mechanics?
The EPA says that its regulations direct it to worry about the safety of home mechanics and students, but that OSHA has the responsibility for the workers.
An examination by the Post-Dispatch of 31 years of OSHA inspection records shows that nationwide, fewer then ten gas stations a year had been cited for asbestos problems.
Richard Fairfax, OSHA's director of enforcement, said in a telephone interview that OSHA does not have a national program on asbestos exposure.
"I know we've done sampling. Going through the old inspection reports I found a couple that I did," Fairfax said. When asked when his were done, he answered: "A long time ago. In the '70s."
In 20 phone calls to various OSHA regional offices and some of the states designated to do their own OSHA inspections, the Post-Dispatch found no one who could recall the last time they'd actually tested for asbestos in a gas station or garage.
"Most of the operations are small businesses and do not have a lot of employees. Our targeting system is geared at employers with 40 or more workers," Fairfax said.
Fairfax said he had no opinion "either way" when asked whether asbestos exposure to brake workers was a health concern.
But the National Institute of Occupational Safety and Health, OSHA's research arm, has conducted repeated studies over the years documenting the dangers of asbestos, not only to mechanics but also to their family members who may be exposed to asbestos on their work clothes and to others in the garage area exposed to large amounts of asbestos in the air.
As far back as 1975, NIOSH had many recommendations on protecting workers, including the posting of warning signs in garages saying "Breathing Asbestos Dust May Cause Asbestosis or Cancer."
But many proposals were ignored, said Dr. Richard Lemen, a former director of NIOSH and an assistant U.S. surgeon general.
"NIOSH cared. EPA cared. It was as if the rest of government didn't really care about the health of these mechanics and their families," Lemen said.
"Eliminating EPA guidance is absurd. The risks from asbestos still exist and unless meaningful actions are taken by the government, mechanics, and all too often, their family members, will continue to die."
Last week, five members of various House committees wrote to the heads of the EPA and OSHA expressing concern that neither agency "appears to be monitoring the risk of asbestos exposure to mechanics and ensuring that protections are in place."
The five lawmakers urged the EPA not to withdraw the brake guidance, saying "it would mislead the public by conveying the false impression that asbestos exposure from brake repair work was no longer a risk."
Other public health experts shared their views.
"In making this move on EPA, the law firm seeks to justify corporate suppression of warnings in the past with government suppression of warnings today," said Dr. Barry Castleman, a national authority on asbestos and health issues. "The loser in this gambit is the public."
Post-Dispatch photographer Andrew Cutraro assisted in the reporting of this story .
Andrew Schneider: E-mail: aschneider@post-dispatch.com Phone: 314-340-8101
source: SLPD 26oct03
Federal Agencies Subject to Data Quality Act
SUSAN M BISONG / Findlaw.com
The Data Quality Act (DQA) is an attempt by Congress to ensure that federal agencies use and disseminate accurate information. The DQA requires federal agencies to issue information quality guidelines ensuring the quality, utility, objectivity and integrity of information that they disseminate and provide mechanisms for affected persons to correct such information. It is important for natural resources and environmental attorneys to be aware of this law in the event that a client has an interest in filing a petition with an agency to challenge the quality of information it has used or disseminated. Questions that remain unanswered about the DQA are whether agency information quality guidelines apply to rule-making and whether an agency's denial of a petition to correct information is reviewable by the courts.
I. Background Information
In 1980, Congress enacted the Paperwork Reduction Act (PRA) in response to the federal government's growing demand for data from small businesses, individuals, and state and local governments and attempted to institute controls over government requests for data. 44 U.S.C. § 3501(1). Under the PRA, Congress established the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) and designated it as the overseer of other federal agencies with respect to paperwork. 44 U.S.C. § 3503(a) and (b). The OIRA is responsible for developing uniform policies for efficient information processing, storage, and transmittal systems, both within and among agencies. Id.
The DQA, which is uncodified, amends the PRA. 44 U.S.C. 3501 et seq. It was enacted in December of 2000 as a two-paragraph provision buried in an appropriations bill. See Treasury and General Government Appropriation Act for Fiscal Year 2001, Pub. L. No. 106-554, § 515 Appendix C, 114 Stat. 2763A-153 (2000) (attached to the back of this memo). The DQA took effect on October 1, 2002, the deadline for federal agencies to issue their final information quality guidelines.
II. Purpose of the Data Quality Act
Congress enacted the DQA primarily in response to increased use of the internet, which gives agencies the ability to communicate information easily and quickly to a large audience. Under the DQA, federal agencies must ensure that the information it disseminates meets certain quality standards. Congress' intent was to prevent the harm that can occur when government websites, which are easily and often accessed by the public, disseminate inaccurate information. See Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication, 67 F.R. 8452, 8452 (Feb. 22, 2002).[1]
III. To Whom it Applies
The DQA applies to all federal agencies that are subject to the PRA. See 67 F.R. at 8453. The PRA defines "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the executive office of the President), or any independent regulatory agency . . ." 44 U.S.C. § 3502. The term "agency" does not include the General Accounting Office, Federal Election Commission, the D.C. government or the territories and possessions of the U.S. or their subdivisions, nor does it include "Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities." Id.
IV. Primary Directives of the Data Quality Act
On February 22, 2002, the OMB's Office of Information and Regulatory Affairs (OIRA) published the final version of its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (Guidelines). See 67 F.R. 8452. As provided in the DQA, the Guidelines mandate that each federal agency:
- By October 1, 2002, issue its own information quality guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information that it disseminates;
- Establish administrative mechanisms to allow affected persons to seek and obtain correction of information maintained or disseminated by the agency that does not comply with OMB or agency guidelines;
- Report periodically to OMB the number and nature of complaints received by the agency regarding the accuracy of its information and how such complaints were resolved.
Id. at 8458.
A Quality of Information
First, the agencies were to adopt a basic standard of quality of information as a performance goal as well as specific standards of quality appropriate for the various categories of information they disseminate. 67 F.R. at 8459. Each agency was required to publish its own guidelines in the Federal Register as well as on the agency's website. Id. In addition, each agency promulgated guidelines that can be found on OMB's website. See www.whitehouse.gov/omb/inforeg/agency_info_quality_links.html.
The Guidelines apply to a wide variety of government information dissemination activities and all types of media, including printed, electronic, or other. The Guidelines define "information" as "any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms." 67 F.R. at 8460. This definition includes information that an agency disseminates from a web page, but does not include hyperlinks to information that others disseminate. The Guidelines also do not apply to opinions, where the agency's presentation makes it clear that what is being offered is someone's opinion rather than fact or the agency's views. Id.
The Guidelines define "dissemination" as "agency initiated or sponsored distribution of information to the public". Id. Explicitly not included within this term is distribution limited to "government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act or other similar law." Id. It also does not include "distribution limited to correspondence with individuals or persons, press releases, archival records, public filings, subpoenas or adjudicative processes." Id. The exemption for information disseminated for adjudicative processes is intended to exclude "the findings and determinations that an agency makes in the course of adjudications involving specific parties." 67 F.R. at 8454.
Under the Guidelines, "quality" encompasses "utility," "objectivity," and "integrity." According to Guideline definitions, "utility" refers to the usefulness of the information to the public or any intended user. 67 F.R. at 8659. Before disseminating information, the agency must assess the potential uses of the information from its own perspective and that of the public. Id. "Integrity" refers to the security of information and the agency's responsibility to ensure that information is protected from unauthorized access or revision. Id. at 8460.
Finally, "objectivity" involves both the presentation and substance of information. Id. at 8459. First, in order for information to be considered objective, it must be presented in an accurate, clear, complete, and unbiased manner. Id. The agency must present the information in the proper context and identify the source (to the extent possible consistent with confidentiality protections) along with the supporting data or models so that the public can assess for itself whether there may be some reason to question the objectivity of the sources. Id. Second, the substance of information disseminated must be accurate, reliable and unbiased. Id. Agencies must identify the sources of the disseminated information, the methods used to produce it, and provide full, accurate, and transparent documentation. 67 F.R. at 8460. Sound statistical research methods must be used to generate original and supporting data and develop analytical results. Id. at 8459. Data subjected to formal, independent, external peer review, is presumed to be of acceptable objectivity, although such a presumption is rebuttable. Id.
Information that agencies deem to meet OMB's definition of "influential scientific, financial, or statistical information" also must be reproducible to demonstrate its objectivity. "Influential scientific, financial or statistical information" has a clear and substantial impact on important public policies or important private sector decisions. 67 F.R. at 8460. Agencies that disseminate such information must ensure a high degree of transparency about the data and methods to facilitate its "reproducibility" by qualified third parties. Id. "Reproducibility" means that the information is capable of being substantially reproduced, subject to an acceptable degree of imprecision. Id.
Notably, the objectivity standard does not override other compelling interests such as privacy, trade secrets, intellectual property, and other confidentiality protections. Id. When data is protected, the agency must apply an "especially rigorous robustness check to analytic results" and document what checks were undertaken. Id. Agency guidelines, however, must require in all cases a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed. Id.
B The Corrections Process – What Natural Resources and Environmental Attorneys Should Know
Environmental attorneys should be aware of the DQA and the newly-implemented data quality guidelines from each federal agency. One important reason for this is that it may serve the best interest of a client to file a petition with an agency such as the Environmental Protection Agency, Federal Energy Regulatory Commission, U.S. Fish & Wildlife, Department of the Interior, Office of Surface Mining Reclamation and Enforcement, Bureau of Land Management, or the Bureau of Indian Affairs, challenging the utility, objectivity or integrity of information that agency has disseminated. Petitions have already been filed with the EPA, which raise issues of how the agency is using scientific information. Under its own guidelines, the EPA has 90 days to respond to these petitions. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by the Environmental Protection Agency, at 31, available at www.epa.gov/oei/qualityguidelines/EPA-OEI-IQG-FINAL-10.2.pdf.
The DQA itself does not define the key terms of quality, utility, objectivity and integrity. Sydney Shapiro, a panelist at the Data Quality Act teleconference and board member for the Center for Progressive Regulation, expressed the views of many environmentalists. He argued that OMB, when defining these terms, attempted to model the regulatory process on the scientific process. According to Shapiro, this is fine up to a point, but the two processes have different goals. Science benefits when results are as accurate as possible, while regulations are made to protect people from harm and should always err on the side of safety. Finally, Shapiro argued that the DQA and its implementing guidelines will lead to costly litigation and mislead agencies from their mission.
During the teleconference, the panelists addressed the question of whether "dissemination" includes rule-making. Neither the DQA, nor its sparse legislative history, nor the OMB guidelines answer this question. One argument is that rule-making does not involve agencies "disseminating," or actively giving out information. Instead agency rule-making involves receiving information. Individual agencies, however, including EPA, have applied their own guidelines to rule-making. See e.g., EPA Guidelines at 15.
The panelists also discussed the petition process and how the DQA will be enforced. The DQA does not have a judicial review provision allowing for a party to take a data quality dispute to court. Whether or not such a provision is necessary for courts to review an agency's denial of a petition to correct data is a question beyond the scope of this memorandum. Mark Greenwood, one of the panelists at the teleconference and former Director of EPA's Office of Pollution Prevention and Toxics, anticipates that this question will be adjudicated in the next few years. If courts hold that there is no judicial review, the DQA probably will not have much of an effect on the way federal agencies use and disseminate data.
The Guidelines do not present an official position on the judicial review question although John Graham, Administrator for the OIRA, has opined that court involvement in policing data disputes is inevitable. Rena I. Steiner, Toward Better Bubbles and Future Lives: A Progressive Response to the Conservation Agenda for Reforming Environmental Law, 32 Envtl. L. Rep. 11421 (2002). One obvious problem with judicial review of data quality is that judges are often ill equipped to make determinations on the reliability of hyper-technical scientific data. An alternative danger posed by the DQA is that agencies may anticipate such action by courts and become timid about disseminating information and slower with rule-making. Industry lobbyists and other conservatives contend that Congress intended the DQA to "provoke a revolution in how decisions get made," and meant to provide a means to force agencies and departments into court at any stage of the rule-making process if an affected party believes that inaccurate or unreliable information has been considered. Id. This contention, however, has yet to be substantiated.
The Data Quality Act
- In General -- The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.
- Content of Guidelines. – The guidelines under subsection (a) shall –
- apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and
- require that each Federal agency to which the guidelines apply –
- issue guidelines ensuring and maximizing the quality, objectivity, utility and integrity of information (including statistical information) disseminated by the agency, by not later than 1 year after the date of issuance of the guidelines under subsection (a);
- establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and
- report periodically to the Director –
- the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and
- how such complaints were handled by the agency
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[1] These guidelines are not yet published in the Code of Federal Regulations.
Ms. Bisong practices in Modrall Sperling’s Natural Resources Department. Her primary areas of interest are in water, environmental, natural resources, and Indian law as well as general litigation.
source: http://library.lp.findlaw.com/articles/file/00312/008569/title/features 26oct03
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