Defends No Restrictions on Corporate Conflicts of Interest, Ethics, or Scientific Bias (Impartiality test)
The Roots of Regulatory Capture
Should Toxic Polluter Dupont Have Any Role In Setting Policy On Clean Water?
[See End Note for specific examples]
Upon learning of the imminent expiration of the term of the Dupont corporation member of the Delaware River Basin Commission’s (DRBC) “Toxics Advisory Committee” (TAC), I recently gave DRBC Executive Director Tambini an opportunity to reform and strengthen the DRBC’s scientific integrity policies and practices.
I thought this was a particularly timely opportunity for reforms, given the Congress’ investigation into how the oil and gas industry manipulated the science and misled the public on climate change. That investigation has shown a bright light on issues of scientific integrity and corporate influence on science, including how manipulation of science can forego, delay and weaken regulation.
So I wrote Tambini a letter, requesting that he take action.
I thought I gave him a golden opportunity to seize the moment, pre-empt criticism, come off as an enlightened leader and put the Commission and its staff in a favorable public light, see:
Yesterday, I received a reply from Tambini – some people just don’t get it.
Tambini not only rejected my requests, he went out of his way to defend the status quo and actually praised what are clearly inappropriate policies and practices with respect to scientific integrity and ethics.
The DRBC’s policies and practices do not meet the minimum requirements of the Federal Advisory Committee Act (FACA), the EPA Science Advisory Board (SAB) or the NJ DEP Science Advisory Board (NJ SAB). (see also this on appointing NJ DEP SAB members).
For example, the EPA SAB has detailed ethics requirements for advisors. These are far more detailed and rigorous than the NJ DEP SAB.
However, because the DRBC is an interstate entity, formed by Congressional compact, stricter federal EPA standards are appropriate.
These EPA ethical requirements involve corporate, financial, and scientific aspects – at both a corporate and individual scientist level.
These EPA ethics reviews address whether a corporate interest would create a legal or financial conflict of interest. They also address whether an individual scientist, based on his corporate affiliation, financial disclosure form, or prior work, could create “an appearance of loss of impartiality”.
NJ ethics laws have a similar “appearance” standard. NJ Election laws (ELEC) have more stringent disclosure and reporting requirements, for attempts to “influence government processes”, which service on a SAB or TAC is by definition.
Here’s how EPA implements a SAB ethics review BEFORE a candidate could be named and appointed as an advisor:
How EPA Evaluates Ethics Information
When forming an advisory panel, one component of that process is to ensure candidates are free from Conflicts of Interest and/or an appearance of a loss of impartiality. This decision is made based on all relevant information, including a review of each candidate’s confidential financial disclosure form (EPA Form 3110-48), the responses to the supplemental ethics questions, public comments and information gathered by SAB staff. Possible remedies to a conflict of interest include recusal from some part of the matter, divestiture from the disqualifying financial interest, application of exemptions in the ethics regulations, or an EPA-issued individual waiver.
DRBC has nothing like this. Nothing at all, as a matter of fact.
It seems OBVIOUS that a major polluter, like the Dupont corporation, has egregious corporate conflicts of interest (legal, financial, ethical, and scientific) with the scientific, regulatory, and public interest work of the DRBC.
It seems equally obvious that a scientist, who is paid by the Dupont corporation, also has financial conflict of interest and also – based on his financial compensation by Dupont and his scientific work for Dupont – has the “appearance of a loss of impartiality.”
But this is not obvious to Mr. Tambini – here is his egregiously poor judgement: [my comments in red]
Mr. Wolfe,
I received your e-mail below and offer the following response. I do not intend to remove the industry representative from the Toxics Advisory Committee (TAC) for the reasons set forth here:
1. The term of the TAC position held by the Chemours representative expires at the end of this calendar year, and DRBC is currently accepting applications to fill the impending vacancy.
[I requested reforms to apply to the new industry representative. Tambini ignored that.]
2. Section 3.10 of the Delaware River Basin Compact (the law that formed and governs the DRBC) states: “The commission may constitute and empower advisory committees, which may be comprised of representatives of the public and of federal, state, county and municipal governments, water resources agencies, water-using industries, water-interest groups, labor and agriculture.”
[Irrelevant and a diverion. I never questioned DRBC or his authority to appoint a TAC or include industry membership. My focus was on conflicts and the need for new scientific integrity and ethical standards.]
3. In authorizing each of its advisory committees, the Commission endeavors to ensure that diverse viewpoints and areas of expertise are represented, including from our regulated community. Importantly, the constitution of committees is prescribed to ensure that diverse viewpoints are represented and that no one sector dominates any DRBC advisory committee. Each committee member—whether from industry; academia; environmental advocacy; agriculture; municipal, state, or federal government; or any other sector—is seated to bring unique technical expertise, viewpoints, and concerns to the table. It is our view that the committee, the Commission, and the public benefit from these diverse perspectives.
[Another non-response diversion. Diverse viewpoint can be flat out wrong, due to scientific or ethical conflicts, or an appearance of a lack of impartiality.
And how is it possible that “diverse” and “balanced viewpoints” can be realized by a token environmental group representative on the TAC, a person with no expertise and no resources. How can that reprentative possibly “balance” the views of a PhD Dupont toxicologist backed by billions of dollars and the best scientists in the world and prevent Dupont from “dominating” (having undue influence) ?]
4. Advisory committees serve the Commission in an advisory role only. Neither the TAC nor any other DRBC advisory committee makes any decisions on the Commission’s behalf. When an advisory committee chooses to offer recommendations to the Commission, the Commission has no obligation to accept them. All actions of the Commission are taken upon a majority vote of the five Commissioners—the governors of each of the four basin states, and on behalf of the United States, the commander of the North Atlantic Division of the U.S. Army Corps of Engineers—who may vote in person, or as is more common, through a designated alternate.
[TAC’s strongly influence the focus, subject matter, methods, data, literature, and scientific and technical inputs to scientific judgments, formation of scientific consensus, and DRBC staff and Commission decision-making. As such, they necessarily play a role in policy and regulation. This is just a misleading statement by Mr. Tambini.]
5. “Conflicts of interest” arise where an individual has incompatible obligations. In their capacity as members of the Commission’s advisory committees, members from all sectors are expected to represent the interests of the entities that supported their nomination. That obligation is in no inherent way incompatible with a representative’s other duties as an advisory committee member—to attend meetings and to respect the terms of the committee’s authorizing resolution and bylaws. Quite the opposite. By providing their unique perspectives, committee members give the Commission, the committee, and the public (since all committee meetings are public) a window into the concerns of the sectors they represent on the matters the committee takes up. TAC motions and recommendations, in particular, require the support of a majority of the committee’s members to pass, preventing any single member from unduly influencing the committee’s recommendations.
[This is incredible. Tambini is actually defending and inviting the corruption of science and ethics and erosion of public trust in government. Industry has other procedural opportunities to prevent their views, e.g. they can submit written comments and testify at public hearings and Commission meetings like everyone else. They do no warrant inside access and influence on the science and DRBC staff that that access provides. Tambini is not only oblivious to the dynamics of scientific integrity and ethics, but to the entire concept of “regulatory capture“. This is a stunningly inappropriate reply.]
6. Advisory committees have no role in the review of docket applications considered by the Commission.
[True, but misleading. TAC’s significantly influence the scientific inputs to the staff recommendations that are presented to the Commission for regulatory and policy decision.]
7. The Commission appreciates the professionalism and expertise of its advisory committee members and values their willingness to engage in debate, dialogue, and input on the challenging water resource management issues we confront in an environment of continually evolving science. The independence, objectivity, and scientific integrity of the DRBC staff and the Commission can be enhanced—not compromised—when we engage with stakeholder representatives on our advisory committees.
[This has nothing to do with professionalism, other than to set clear standards that define such professional practices and reinforce public confidence in government. And this Tambinin statement is just bizarre: “The independence, objectivity, and scientific integrity of the DRBC staff and the Commission can be enhanced—not compromised—when we engage with stakeholder representatives on our advisory committees.”]
Thank you for your interest in the DRBC.
Steve
And here is my quick reply to Tambini:
Mr Tambini – thank you for a thoughtful response.
I’m afraid I strongly disagree.
Corporate “stakeholders” have powerful and specific economic interests and far more expertise, resources, and influence compared to public interest stakeholders. As such, there is not even close to the kind of diverse, balanced, and transparent deliberation you presume.
The federal FACA law and the EPA and NJ DEP SAB policies place limits, including on ethics, conflicts of interest, disclosure, and scientific bias. NJ DEP SAB goes further by discouraging SAB members from participating in regulatory policy. NJ ELEC law goes even further by requiring reporting of all efforts to “influence government processes”.
It is disappointing that you apparently fail to understand these issues and defend the clearly flawed status quo.
Respectfully
Bill Wolfe
My next move will be an appeal to the individual Commissioners.
Let’s hope the media and the environmental groups take on this fight for scientific integrity and protection of the public interest from undue corporate influence.
Protection of the earth, water, land, air, wildlife, and public health requires independent, objective and impartial science.
That can not result from industry influence on the scientific inputs to public policy and regulation.
[End Note: If anyone thinks this is just hypothetical or theoretic nonsense, consider these concrete examples:
1) Unregulated chemicals – “Contaminants of Emerging Concern”
What might have become of this strategy and task, which wasn’t even recommended by DRBC Staff until in a 2018 TAC presentation:
Note the word “initiate” and “strategy”, and this is after 15 YEARS – no typo FIFTEEN YEARS – on various DRBC research projects and 3 years ago they just were ready to “initiate” a strategy!!
- Task: Initiate development a DRBC Contaminants of Emerging Concern Strategy
That DRBC experience perfectly fits the industry science strategy of manufacturing uncertainty to forego, delay, and weaken regulation.
To understand the significance of this delay and inaction, just consider the “highlights” of that 2018 TAC meeting:
A recommendation was made to consider biomonitoring of humans for exposure to PFAS. CEC strategy should identify new CEC for which occurrence data is not available in the Delaware River and Bay
Just let that sink in. Read it again.
2. Scientific methods to assess risks of unregulated chemicals
But the influence of Dupont gets much worse.
To address those risks of unregulated chemicals, here is a key recommendation from the DEP SAB Final Report on Contaminants of Emerging Concern:
It is recommended that the hazard assessment be conducted using a platform called METIS (Metanomics Information System) developed by DuPont. METIS is a chemical informatics platform that provides a screening level view of potential environmental fate and effects, human health concerns, andsocietal perception concerns.
Did you catch that?
The DEP SAB recommended a chemical hazard assessment proprietary method developed by Dupont, a chemical manufacturer that would be subject to the regulations of those chemicals. A Dupont representative participated in the deliberation and drafting of this SAB recommendation!
This is astonishing corruption – Full story and links can be found here:
3. Human Health risks – Methods to establish water quality standards
DRBC relies on the TAC to provide scientific guidance on human health (HH) criteria (regulatory standards) and various significant scientific methodologies for conducting risk assessment and regulating the human health risks of chemicals.
Here’s an example of the questions and influence they defer to TAC on – and how the TAC influence the work of the staff:
Does TAC have any specific topics or issues to addressed related to HH criteria updates?
Proceed with update of DRBC HH criteria for Zones 2 to 6.
Expand DRBC HH criteria to Zone 1?
DRBC staff to propose revised criteria in consultation with basin states.Toxic Criteria Workgroup to review criteria updates and present proposed criteria revisions to TAC.
4. The TAC is also very involved in setting the methods, data, and standards for implementing water pollution cleanup plans known as “TMDL’s” – including “equitable” allocation of the burdens of cleanup, for cancer causing toxic pollutants like PCB’s.
Do you really want Dupont involved in any of this?