On March 6, Sens. Jim Jeffords (I-VT), Barbara Boxer (D-CA), Frank Lautenberg (D-NJ) and Paul Sarbanes (D-MD) submitted to the Environmental Protection Agency (EPA) a request for correction of information under the Data Quality Act. This is the first data quality challenge submitted by members of Congress. The request addresses a Modification of National Pollutant Discharge Elimination System (NPDES) permit deadline for storm water discharges by oil and gas construction activity that disturbs one to five acres of land. The EPA proposed extending the deadline for storm water discharge permits for oil and gas construction for two years based upon information from the Department of Energy (DOE) about the oil and gas industry. The senators argue that the DOE information does not meet EPA’s Data Quality standards and cannot be utilized in such an important decision and therefore, that EPA should maintain its original deadline. The challenge questions the objectivity, accuracy and utility of DOE information concerning the number of oil and gas construction sites that are one to five acres in size and therefore required to comply with Phase II storm water regulations. The information, produced by DOE’s Energy Information Administration (EIA), estimates a much higher number of the annual new oil and gas construction sites may be required to comply with the regulation than initially projected. EPA originally considered that few of the new sites would exceed one acre and therefore would not incur compliance costs. Based upon the new EIA number of sites affected by the Phase II storm water regulations – 30,000 – EPA was proposing suspending the requirement that oil and gas facilities obtain a Phase II storm water permit for two years while the EPA studied the matter further. The senators assert that the EIA information fails to comply with EPA’s data quality standards on several points. In preparation for the challenge, the senators had previously requested that the General Accounting Office (GAO) conduct an evaluation of the information used in the proposal. In a briefing on Feb. 24, GAO told the senators that it identified a number of critical flaws in the information. The new figure’s accuracy is criticized on a number of points including that it is not recent data, it is an obviously skewed average, it includes offshore drilling operations which would not be affected by the regulation, and that no new information on site size has been presented. The letter challenges the objectivity of the information, noting that EIA does not collect drilling information but estimates figures based on partial data from the American Petroleum Institute. Apparently the EIA has noted previously that there have been problems with this data and that the “arms-length relationship with the basic data” makes it difficult to discover or remedy errors. Based upon the numerous problems identified with the EIA data, the senators claim that the information cannot be used by EPA to justify postponing storm water Phase II requirements for oil and gas construction sites. The senators expect the EPA to address this request for correction of information before the issuance of a final rule. If the EPA reviews the request, agrees with its points, and “corrects” the information as the senators request, then it is likely that EPA would issue a final rule that would require oil and gas construction sites to comply with Phase II of the storm water regulations as originally scheduled. Shortly after the EPA received the high ranking data quality challenge Christie Todd Whitman, the EPA administrator at the time, replied to the petition with a brief letter. The letter, while not an official decision on the petition, did attempt to address some of the concerns raised in the senators’ challenge. The administrator noted that the agency’s decision was not based solely on DOE information. The DOE information on the number of wells likely affected by the Storm Water Phase II regulations was apparently consistent with information submitted from “a number of sources.” EPA officially denied the request for correction June 13, arguing the same points as the Whitman’s letter, namely that the DOE information was only one of many sources used to produce estimates on the number of affected facilities. After reviewing estimates from other sources, EPA believed the contradictory information necessitated additional time to review potential impacts of a rulemaking. The final rule is pushed back to March 12, 2005. The lack of information on these other sources represents a transparency problem and the data issues of objectivity and accuracy remain unanswered. This data quality challenge is the first one that many environmentalists and public interest groups would label a positive use of the Data Quality Guidelines. Some have asserted that the Data Quality Guidelines would be as useful to public interest groups pushing for stronger regulations and more decisive agency actions, as they would be to the regulated community opposing those regulations. However, the public interest community has held that the main outcome of data quality challenges can only be reduced information and delays and prevention of agency actions. Since public interest groups are almost always advocating for faster and more stringent action, these outcomes would rarely, if ever, serve those purposes. However, this challenge turns the process on its head by using the Data Quality Guidelines to prevent a postponement -- this challenge actually demands faster action from the EPA on this matter. While this particular data quality challenge held the possibility of serious environmental benefits, the Data Quality Guidelines remain a troubling new aspect for agencies as they are too likely to be misused by the regulated community to slow down and derail agency actions.