This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A coalition of plant managers is calling for legislation to ensure that water-quality rules pass scientific muster, but critics fear the proposal would allow industry to dodge regulations needed to keep Utah's water safe.
The alliance, which represents publicly owned water treatment facilities, approached a legislative committee late last year to present its idea for a bill that would enable the public to call for a scientific peer review of decisions made by the state's Division of Water Quality.
The premise behind the bill was simple: Peer review is used by academic journals to ensure the studies in those publications are based on sound science, so why not create a similar mechanism to vet the thinking behind new water rules?
The Division of Water Quality was on board, with a few suggestions to refine the bill. But subsequent work meetings have drawn opponents from the environmental and legal communities.
Leland Myers, manager of the Central Davis Sewer District, said the coalition started talking about drafting such a measure a few years ago. A growing body of legislation is based on scientific research, and the government and various industries have hired experts to use science to bolster their own positions.
In the absence of a mechanism that can determine whose experts espouse the best science, he said, research has become a tool for creating political deadlock.
"When we become entrenched in our positions, rather than sitting and endlessly fighting on a political level," he said, "let's get a third party to come in."
This remains a new concept, Myers said, but it's hardly novel. California and Minnesota have passed similar rules. But theirs are still new and relatively unproven.
Shannon Lotthammer, director of environmental analysis at the Minnesota Pollution Control Agency, said its rule went on the books last June and has yet to be tested. The Minnesota measure requires an independent peer review every time a state agency conducts its own research.
The proposal for Utah is different. It wouldn't require peer review as part of the administrative process, but would create a mechanism the public could request as a challenge to a proposed water-quality rule. The challenging party would have to prove that it would be personally affected in some way by the rule and be willing to pay the expenses associated with the peer review — estimated at $50,000 for a three-member panel — to initiate one.
The payment provision is perhaps the most controversial aspect. Myers said it was intended to dissuade frivolous challenges that could tie up the rule-making process, but detractors worry that it locks out the general public while giving industry interests an opening to effectively buy science.
"It's based on the false notion that you can simply hire your own expert to get around regulation," said attorney Patrick Shea, a professor of biology at the University of Utah. "It's called dueling science. It hasn't worked in the past, and it won't work in the future."
Shea believes the bill's proponents misunderstand how peer review and science work. One important component, he said, is running the tests described by the study in question to find out if the results can be replicated. But tests involving complicated issues such as water quality can be manipulated to achieve different results.
For example, he said, round-the-clock monitoring by government entities might yield one conclusion, but paid experts could reach another by taking samples only when their employer restricts discharges.
"It's like the old high school debate," he said. "If you let me define the terms, I'll win the debate."
Shea said he isn't against the general idea of using a scientific review to vet government decisions. But this current proposal, he said, could become "a platform for mischief."
Walt Baker, director of the Division of Water Quality, doesn't see it that way. While he agreed that science isn't as black and white as people might think, he said it should inform public policy — and that the science behind a policy should be a part of the public record.
Baker said he couldn't think of any circumstances when his division has acted contrary to the best available science. And he believes the current administrative process allows the public to bring alternative research to the table for consideration. However, if people view it differently, he said, public distrust would be an important issue to address.
"All parties have to be convinced that the science is good," he said. "If folks feel like there's not a good process for challenging the science, then, in my opinion, what's good for the goose is good for the gander."
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