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US EPA's Science Advisory Board votes to review science transparency proposal

The U.S. Environmental Protection Agency's Science Advisory Board voted June 5 to review a Trump administration proposal on scientific transparency that critics said would exclude key health studies from the federal rulemaking process.

In doing so, the Science Advisory Board, or SAB, rejected the EPA's call to take a narrow look at the proposed rule, signaling interest in the far-reaching consequences the proposal could have on public health and environmental regulations.

The measure, which reflects the work of a self-described "junk science" opponent who served on the Trump administration's EPA transition team, was the agency's first original rulemaking under former Administrator Scott Pruitt. Unveiled in April 2018, the proposed "Strengthening Transparency in Regulatory Science" rule is aimed at ensuring the science used to develop regulations, including any data or models used within a scientific study, is publicly available in a way that allows for independent verification.

However, members of the SAB a body charged by statute with reviewing the scientific and technical information in EPA rulemakings wrote in a May 2018 memo that they were excluded from the proposal's development. They said the rule could "have the effect of removing legal, ethical, and peer-reviewed studies of health effects as sources to support the agency's regulatory efforts."

Later that month, the SAB voted unanimously to review the proposal's possible impact on regulatory actions. The board has been unable to proceed since then as requests for more information from the EPA have gone unanswered.

Meanwhile, the proposal has been assailed by a bipartisan think tank, the U.S. Defense Department and public health groups, among others, during a public comment period that has garnered more than 600,000 submissions.

EPA chief Andrew Wheeler, who was confirmed as administrator in February after Pruitt resigned, has nevertheless pledged to forge ahead with the proposal. Nearly a year after the SAB requested more information about the rulemaking, Wheeler sent a letter to the board in April saying the EPA would benefit from a "consultation" on how to safeguard confidential business information and personally identifiable information when making sensitive data sets publicly available.

Wheeler, who started his career at the EPA's toxics office before becoming an energy lobbyist, said during the board's June 5 annual meeting that disclosing more data will give the public more faith in the agency's actions.

"I have not made any final decisions, but I do believe it's very important to move forward," Wheeler said. "I fundamentally believe the more information we provide to the public as far as what we are basing our regulations on, the better our regulations will be."

Wheeler added that he is "looking forward" to the SAB's consultation on protecting sensitive information, an issue that EPA staff said was of particular concern to commenters. Later in the day, however, all but two of the board's members voted to pursue a broader review.

"If this rule goes through as proposed, it's going to affect the way every scientific group in the country is doing its research," Richard Smith, a professor of statistics and operations at the University of North Carolina, said in the run-up to the vote.

'Very tight timeline'

Reviews for targeted regulations typically require the EPA to provide the SAB with additional information, but at this point, the board probably has enough to proceed on its own, said Chris Zarba, who served as the agency's SAB director from 1979 to 2018.

The Environmental Research, Development, and Demonstration Authorization Act states that the EPA administrator "shall make available to the board" any scientific and technical information that serves as the basis for agency actions at the time any proposal is provided to another federal agency for formal review and comment.

"The SAB should have been involved much earlier," Zarba said in an interview on the sidelines of the meeting. Zarba added that completing a full review before the EPA finalizes the rule by its December target is unlikely. "There's just not enough time," he maintained.

Moving forward without a full SAB review could also increase the likelihood of a court vacating the rule upon judicial review, said Steven Silverman, who was an attorney in the EPA's Office of General Counsel from 1980 to 2017.

"An agency failing to take or follow the advice of its science advisors can be an element of arbitrary conduct," Silverman said in an interview. "That could certainly be argued, and I think a court would be receptive to that."

SAB Chair Michael Honeycutt, director of the Texas Commission on Environmental Quality's Toxicology Division, noted during the meeting that the board is already on "a very tight timeline."

"By the time we put together a [review] panel, have them do something, and then bring it to us ... I don't think that's doable before the end of the year," Honeycutt said.

But Smith, the North Carolina professor, suggested the SAB should also consider adjusting its timeline. "My personal feeling is we should be somewhat flexible about the timeframe for doing this," he said. "If the administrator wants to see the report out in a few months rather than two years, perhaps we should work on ways we can actually do that."