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Public Comments -- Animal Protection
Institute

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stakeholder contact points Please respond to nicolep@gvn.net
To: stakeholders@epa.gov
cc:
Subject: Review of Environmental Protection Agency Public Participation Policies

January 7, 2000

Sent Via Facsimile and Email
Deborah Dalton
Deputy Director
Office of Policy and Reinvention
U.S. Environmental Protection Agency
(202) 260-5478
Stakeholders@apa.gov

Re: Review of Environmental Protection Agency Public Participation Policies. 64 Fed. Reg. 66906.

Dear Ms. Dalton:

On behalf of the Animal Protection Institute (API), a national non-profit animal advocacy organization with 85,000 members and supporters, I am pleased to respond to the United States Environmental Protection Agency?s (EPA) request for public comment on its 1981 policy on public participation.

Before proceeding, API would like to commend the EPA for recognizing that their Final EPA Policy on Public Participation (1981 Policy) could be improved through the assistance of public comment. We are hopeful that the EPA will implement the suggestions set forth below and in the process involve all interested groups in the EPA?s decision-making, rule making, and program implementation process.

BACKGROUND

The EPA conducts more chemical toxicity tests on animals than any other federal agency. Common tests include skin corrosion and absorption testing, eye irritancy studies, lethal dose tests, and numerous other tests. These tests require the animal to eat, inhale, or be injected with chemicals. In the past, the agency has rejected non-animal alternatives when they were available and has conducted very little research developing or validating non-animal test methods.

We are particularly interested in amending the 1981 Policy because of the animal protection community?s recent experiences with EPA?s public participation process. Specifically, our concerns arise out of the failure of the EPA to invite interested members of the public to participate in the development of the voluntary high production volume (HPV) chemical testing program in 1998. This is a clear violation of the 1981 Policy. Not only was the there no Federal Register notice seeking public comment, but the program was created by three organizations ? EPA, the Environmental Defense Fund, and the Chemical Manufacturers Association.

The HPV program is estimated to kill anywhere from 800,000 to over 2,000,000 animals. At the time of the program?s birth, it was the largest animal-testing program initiated by the federal government. However, not one animal protection group was involved in the process, nor were any of the animal protection groups? concerns incorporated in the program.

Presently, the EPA plans to conduct tests on over 100,000 million animals for its Endocrine Disruptor Screening Program (EDSP). Numerous members of the scientific community have denounced the tests the EPA plans to use on the animals. The EPA has disregarded the recommendations of its own advisory committee to reduce the amount of animals killed and is circumventing the process of validating the animal tests used in the program (a requirement that all non-animal tests must meet). Moreover, animal protection groups have been excluded from the public participation process until recently.

The above two examples clearly illustrate the need to amend the 1981 Policy. Interested members of the public must be afforded notification and allowed to participate in programs that are of grave concern to them.

RECOMMENDED CHANGES TO THE 1981 POLICY ON PUBLIC PARTICIPATION

The Animal Protection Institute offers the following recommendations to the EPA?s workgroup in fulfilling its mandate to improve the 1981 Policy and afford all members of the public the opportunity to participate in decision making, rulemaking and program implementation of EPA programs. We request the EPA workgroup incorporate the following suggestions when amending the 1981 Policy:

  1. Definitions API suggests that the definition of ?public? be amended. In addition to private citizens ?public? includes, ?representatives or consumer, environmental, and minority groups; the business and industrial communities; trade, industrial, agriculture, and labor organizations; public health, scientific, and professional societies; civic associations; universities, educational, and governmental associations: and public officials, both elected and appointed.? However, the definition does not include ?animal protection group.?

    Considering that the definition lists a majority of entities that are generally affected by EPA programs, animal protection groups should be included under the definition considering that numerous programs undertaken by the EPA injures and kills millions of animals each year. The inclusion of the phrase in the definition will alert the department seeking participation from the public to notify animal protection groups when the rule change affects animals.

  2. The Public Participation Requirements and Procedures Should Apply to All Agency Activities Defined within the Scope of the 1981 Policy The 1981 Policy identifies those actions that are required to involve public participation and those that are discretionary on the part of the agency managers. The ?discretionary? part of the 1981 Policy should be deleted for it gives agency managers a legal justification to avoid the public participation process entirely.

    The policy recognizes the need to set priorities for its use or resources, and emphasizes participation by the public in decisions where options are available and alternatives must be weighed, or where substantial agreement is needed from the public if a program is to be carried out.? The 1981 policy must reflect the above sentiment. The means to fulfill this is to require the agency managers to involve the public in the decision-making, rule making, and program implementation process for all programs covered under the 1981 Policy.

    An example of giving agency mangers discretion is the HPV program which as stated earlier was not published in the Federal Register nor were any animal protection groups part of the rule making process. Clearly, animal protection groups should have been put on notice considering the amount of animals involved which were slated to be tested on and subsequently killed.

    The only way to ensure that the public is afforded the opportunity to participate in the process is to require that all activities listed within the scope of the policy comply with the requirements and procedures for public participation. Anything less is contrary to the objectives and purpose behind the 1981 Policy.

    Objective - ?strengthen EPA?s commitment to public participation and to establish uniform procedures for participation by the public in EPA?s decision-making process. This in turn will assist EPA in carrying out its mission, by giving a better understanding of the agency?s decisions more acceptable to those who are most concerned and affected by them.

  3. Enforcement Clause The 1981 Policy must include a section or chapter that addresses enforcement of the requirements and procedures of the policy. Such a chapter should mandate full compliance and penalize or punish those departments which fail to properly follow the requirements and procedures in the 1981 Policy.

    Although the 1981 Policy addresses the issue of ?compliance? it fails to properly ensure that the specific departments will carry out the requirement to involve the public. According to the 1981 Policy the ?Assistant Administrator, Office Directors, and Regional Administrators are responsible for making certain that, for the activities under their jurisdiction, all those concerned comply with the public participation requirements set forth in the Policy.? However, the responsible entity evaluates compliance with the public participation requirements during the annual review of the program or during periodic program audits or reviews. The problem is that the penalty is imposed after the decision-making, rule making, and program implementation has transpired. Furthermore, the penalty imposed is to defer the grant award for the program until the requirements for public participation are met.

    As such, the EPA should promulgate an enforcement clause within the 1981 Policy. API suggests that the EPA workgroup include the following measures in an enforcement clause:

    - Mandate some form of public notice of all activities covered by the 1981 Policy
    - this can be accomplished through publication in the Federal Register, on the EPA web site, or at regional, state or national offices.
    - Conduct periodic reviews throughout the duration of the decision- making, rule making, and program implementation process to ensure compliance with the public participation requirements.
    - Impose a penalty on the department for failure to comply with the requirements.
    - Implement a citizen-suit provision that affords the public the right to file complaints against the department for failure to comply with the public participation requirements.

    The 1981 Policy is clearly unenforceable, allowing the various entities undertaking proposed rule changes the discretion to comply with the requirements for public participation. If the above measures are expanded upon and adopted there will be a better assurance that the 1981 Policy will be complied with.

CONCLUSION

According to the purpose of the 1981 Policy, the EPA ?must set forth options and alternatives beforehand, and seek the public?s opinion on them. Merely conferring with the public after a decision is made does not achieve this purpose.? The EPA workgroup must adopt positive changes to ensure that the above stated purpose is carried out. While the Final EPA Policy on Public Participation sets forth detailed procedures for all EPA programs to follow to guarantee public participation, it provides too much agency discretion and no enforcement clause.

Thank you for this opportunity to comment, and we respectively request that you consider the above recommendations as you amend the Final EPA Policy on Public Participation (1981 Policy).

Sincerely,

Nicole G. Paquette, J.D.
Government Affairs Coordinator

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