Environmental Law

SB 263 Requires "Acceptable Data" for New Regulations

By Joel Bolstein

My thanks to Paul King at PEC for passing word along that the General Assembly passed SB 263 yesterday and it is on its way to Governor Corbett.   The bill amends the Regulatory Review Act and requires that any regulation sent to the Independent Regulatory Review Commission (IRRC) be supported by "acceptable data".  "Acceptable Data" is defined in the Act as "Empirical, replicable and testable data as evidenced in supporting documentation, statistics, reports, studies or research."  The sponsor of the bill was Senator Ted Erickson, who previously served as regional administrator of EPA Region 3.  

How is this likely to work?  For environmental regulations, those are typically developed by PADEP and formally promulgated by the Environmental Quality Board (EQB).  Under the amendment to the regulatory review Act, when notice of the proposed regulation is published in the PA Bulletin, there has to be a detailed description of any data relied upon to support the regulation, along with a demonstration that the data meets the statutory definition of "acceptable data."  The statutory amendment also says that the burden is on the agency advocating the new regulation to prove that the data is acceptable.  As a result, I would expect that when the EQB posts a notice of a proposed regulation in the PA Bulletin, it will be accompanied by a new section that identifies whether it relies on any scientific data and provides some proof that the data is "empirical, replicable, and testable."  This will make things very interesting for PADEP, whose staff essentially manages the development and adoption of the regulations that go before the EQB.  

How does one prove that the data is "empirical, replicable and testable"?   Who in the Department is going to put together that finding and stand behind it?  I'll give you one recent example of a regulation where, had this statutory amendment been in place, it would have made things most interesting.  Last year, the EQB enacted regulations that changes some of the Act 2 statewide health standards.  The initial proposal included changing the standard for MTBE.  The scientific formula used for that proposed new standard was the exact same scientific formula used for all of the other health standards that were changed, but the EQB decided it couldn't change the standard for MTBE.  Was that change based on "acceptable data" or was it based on other considerations?  in dropping the proposed MTBE standard, would the EQB have to prove that its decision was based upon acceptable data?  It may not be a perfect example, but I think you get the point. 

This statutory change will give a lot of ammunition to those challenging proposed environmental regulations that must be approved ultimately by the IRRC, after they are finalized by the EQB.  For those of us who believe in using sound science, the frustration expressed by the General Assembly, as embodied in SB263, appears to be justified.  Regulations should be based on "acceptable data."   With that said, it will be interesting to see how the DEP/EQB conform to this statutory amendment and how the IRRC implements it.  In the note that Paul King from PEC sent around, he expressed the concern that the IRRC may not be equipped to evaluate the scientific validity of information provided by DEP/EQB to support data as being "acceptable data."  He may have a point there.  In my mind, the burden will be on PADEP to ensure that its data is reliable.  That may mean greater use of outside advisory boards like the Cleanup Standards Scientific Advisory Board to doublecheck the reliability of the Department's data.  What is the Department going to do when it wants to make a regulatory change but it can't come up with "empirical, replicable, testable data" to support it?   

I respect Senator Erickson for insisting that regulations be based on valid science and acceptable data.  Having served as EPA region 3 administrator, the Senator had an inside view of how the regulatory process works both at the federal and state levels.  As someone who understands the necessity of using reliable data to develop environmental regulations, he should be commended for getting this passed and for sending a strong message.  Now comes the hard part.  Making sure it works as he envisioned.

Full post as published by PA Brownfields Environmental Law on June 29, 2011 (boomark / email).