By Lynn L. Bergeson and Carla N. Hutton
 
The Senate Committee on Environment and Public Works will hold a hearing on May 12, 2021, on several nominations, including that of Michal Freedhoff to be Assistant Administrator for Chemical Safety and Pollution Prevention of the U.S. Environmental Protection Agency (EPA).  As reported in our January 22, 2021, blog item, Freedhoff was onboarded in January 2021 as Principal Deputy Assistant Administrator for Chemical Safety and Pollution Prevention.  On April 14, 2021, President Joseph Biden nominated Freedhoff for Assistant Administrator for Chemical Safety and Pollution Prevention.  According to Biden’s announcement, Freedhoff has more than 20 years of government experience, most recently as the Minority Director of Oversight for the Senate Environment and Public Works Committee.  She began her Congressional service in 1996 in then-Representative Ed Markey’s (D-MA) office as a Congressional Science and Engineering fellow after receiving a Ph.D. in physical chemistry at the University of Rochester.  Freedhoff also served on the staffs of the House Science Committee, the House Select Committee on Energy Independence and Global Warming, the House Energy and Commerce Committee, and the House Natural Resources Committee.  The announcement states that Freedhoff’s legislative work includes the 2016 re-authorization of the Toxic Substances Control Act (TSCA), 2019 legislation to address per- and polyfluoroalkyl substances (PFAS) contamination, the fuel economy provisions in the 2007 Energy Independence and Security Act, and a law requiring the creation of an online database of potential consumer product safety defects.
 
The Committee will also consider several other nominations, including that of Radhika Fox to be EPA Assistant Administrator for Water.  Like Freedhoff, she was onboarded at EPA in January 2021.  More information on Fox is available in President Biden’s April 14, 2021, announcement.

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By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) published a Federal Register notice on March 20, 2020, inviting the public to nominate scientific experts from a diverse range of disciplines to be considered for appointment to the Toxic Substances Control Act (TSCA) Science Advisory Committee on Chemicals (SACC).  85 Fed. Reg. 16094.  EPA is seeking nominations of individuals who have demonstrated high levels of expertise in scientific and/or technical fields relevant to chemical safety and risk assessment, including, but not limited to:  human health and ecological risk assessment, biostatistics, epidemiology, pediatrics, physiologically based pharmacokinetics, toxicology and pathology, and the relationship of chemical exposures to women, children, and other potentially exposed or susceptible subpopulations.  In addition, nominees should have backgrounds and experiences that would contribute to the diversity of scientific viewpoints on the committee, including professional experiences in government, labor, public health, public interest, animal protection, industry, and other groups, as the EPA Administrator determines to be advisable (e.g., geographic location, social and cultural backgrounds, and professional affiliations).  Any interested person or organization may nominate qualified persons to be considered for appointment to SACC.  Individuals also may self-nominate.  The preferred method for submitting nominations is via e-mail to Steven Knott, the SACC’s Designated Federal Officer (.(JavaScript must be enabled to view this email address)).  Nominations are due no later than April 20, 2020.

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By Lynn L. Bergeson, Christopher R. Bryant, and Margaret R. Graham

Following through on a commitment he made in November 2018, President Trump on January 9, 2019, formally nominated Andrew Wheeler to serve as the Administrator of the U.S. Environmental Protection Agency (EPA).  Mr. Wheeler has served as EPA’s Acting Administrator since the resignation of Scott Pruitt in July 2018.  Mr. Wheeler previously worked in the law firm of Faegre Baker Daniels and was chief counsel to the Senate’s Environment and Public Works (EPW) Committee.  Before his time at the Senate EPW Committee, Mr. Wheeler served in a similar capacity for six years for the Subcommittee on Clean Air, Climate Change, Wetlands, and Nuclear Safety.  Mr. Wheeler completed his law degree at Washington University in St. Louis, his MBA at George Mason University, and his undergraduate work at Case Western Reserve University in English and Biology.  Mr. Wheeler’s confirmation hearing in front of the Senate EPW Committee is scheduled for 10:00 a.m. (EST) on January 16, 2019.  It will be webcast on the EPW Committee website.

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By Lynn L. Bergeson, Susan M. Kirsch, and Margaret R. Graham

On November 29, 2018, the U.S. Senate Committee on Environment and Public Works (EPW) held a hearing on the nomination of Alexandra Dapolito Dunn to be the U.S. Environmental Protection Agency (EPA) Assistant Administrator (AA) for EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP).  The hearing was webcast and is available on the EPW Committee website.

In a rare sharing of bipartisan support for a Trump Administration nominee, Senator Sheldon Whitehouse (D-RI) introduced Ms. Dunn, stating “Ms. Dunn has a deep passion for working with communities, for environmental justice, and for leveraging the expertise of nongovernmental organizations.”  Senator Tom Carper (D-DE) stated he was encouraged by her plans for the office.  Ms. Dunn assured lawmakers that, if confirmed, she will “commit to implementing the law, following the law, and bringing all the provisions of the law to full effect.”  Dunn also emphasized her intention, if confirmed, to leverage the experience and expertise of EPA career staff, including establishing “open door” hours dedicated to connecting with career staff.  Dunn’s written testimony is available on the EPW Committee website.  Senators may submit additional questions for the record (QFR) through November 29, 2018, for Ms. Dunn’s response by December 3, 2018.  It is being reported that Ms. Dunn could be confirmed as early as next week assuming there are no objections.

Ms. Dunn has been serving as the Regional Administrator for EPA’s New England Region (Region 1) since January of this year.  Prior to joining EPA, Ms. Dunn served as Executive Director and General Counsel for the Environmental Council of the States (ECOS), a national nonprofit, nonpartisan organization committed to helping state agencies improve environment outcomes for Americans.  More information on Ms. Dunn’s experience and accolades is available in EPA’s press release announcing her nomination.

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By Lynn L. Bergeson and Margaret R. Graham

On September 13, 2018, EPA announced it was requesting public nominations of scientific experts to be considered for ad hoc participation and possible membership on the Toxic Substances Control Act (TSCA) Science Advisory Committee on Chemicals (SACC).  83 Fed. Reg. 46487.  The notice states that all nominees will be considered for ad hoc participation in the TSCA SACC’s peer reviews of the EPA’s risk evaluations for the first ten chemical substances addressed under TSCA.  Further, all nominees may be considered for TSCA SACC membership to fulfill short term needs when a vacancy occurs on the chartered Committee.  As part of a broader process for developing a pool of candidates, EPA staff solicits from the public and stakeholder communities nominations of prospective candidates for service as ad hoc reviewers and possibly members of TSCA SACC. 

EPA states in the notice that any interested person or organization may nominate qualified individuals to be considered as prospective candidates, including themselves.  It is requested for individuals nominated to have expertise in one or more of the following areas:  women's health; children’s health; genetic variability; disproportionately exposed populations; aging; other susceptible populations; biochemistry; chemistry; epidemiology; human health risk assessment; pathology; physiologically based pharmacokinetic (PBPK) modeling; pharmacology; ecological risk assessment; environmental fate; environmental toxicology; occupational, consumer, and general exposure assessment; toxicology; dose response modeling; environmental engineering; biostatistics; computational toxicology; fiber science; inhalation toxicology; volatile organics; and systematic review.  Nominations are due by October 29, 2018.

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By Lynn L. Bergeson and Margaret R. Graham

On November 29, 2017, the Senate Environment and Public Works Committee approved the nomination of Andrew R. Wheeler, Esquire for U.S. Environmental Protection Agency (EPA) Deputy Administrator.  Mr. Wheeler currently works as a Principal at Faegre Baker Daniels Consulting providing guidance on federal regulatory and legislative environmental and energy issues.  He began his environmental policy career at EPA in 1991 when he was Special Assistant to the Information Management Division Director in the Office of Pollution Prevention and Toxics (OPPT) during the George H.W. Bush and Bill Clinton administrations.  He also spent many years on Capitol Hill as Chief Counsel to U.S. Senator James Inhofe, and Staff Director and Chief Counsel for two Senate Committees:  the U.S. Senate Committee on Environment and Public Works (EPW) and the U.S. Senate Subcommittee on Clean Air, Climate Change, Wetlands, and Nuclear Safety.  Mr. Wheeler received his JD from Washington University in St. Louis School of Law, and his MBA from George Mason University.  

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By Lynn L. Bergeson and Margaret R. Graham

On October 25, 2017, the Senate Environment and Public Works (EPW) Committee confirmed the nominations of four U.S. Environmental Protection Agency (EPA) officials:  Michael Dourson, Ph.D., for Assistant Administrator (AA) of the Office of Chemical Safety and Pollution Prevention (OCSPP); William Wehrum, Esquire, for AA of the Office of Air and Radiation (OAR), Matthew Leopold, Esquire, for General Counsel, and David Ross, Esquire for AA of the Office of Water (OW).  Dourson and Wehrum, the more contentiously debated nominees, were confirmed along party lines with 11 votes (Committee Republicans) to 10 (Committee Democrats).  The nominees must now face a vote by the full Senate.

More information on the EPW Committee hearing held on October 4, 2017, and on the nominees is available on our blog under key word nomination.

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By Lynn L. Bergeson and Margaret R. Graham

The U.S. Senate Committee on Environment and Public Works (EPW) has rescheduled its Committee Business Meeting to vote on nominees to the U.S. Environmental Protection Agency (EPA) for October 25, 2017, at 10:00 a.m. (EDT).  The EPA nominees are:  Michael Dourson, Ph.D., for Assistant Administrator (AA) of the Office of Chemical Safety and Pollution Prevention (OCSPP); William Wehrum, Esquire for AA of the Office of Air and Radiation (OAR), Matthew Leopold, Esquire, for General Counsel, and David Ross, Esquire for AA of the Office of Water (OW). 

More information on the nominees, including a recap of the confirmation hearing, is available on our blog under key word nomination. 

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By Lynn L. Bergeson and Margaret R. Graham

On October 18, 2017, the Senate Environment and Public Works (EPW) Committee postponed a scheduled business meeting to vote on the nominations of four U.S. Environmental Protection Agency (EPA) officials:  Michael Dourson, Ph.D., for Assistant Administrator (AA) of the Office of Chemical Safety and Pollution Prevention (OCSPP); William Wehrum, Esquire for AA of the Office of Air and Radiation (OAR), Matthew Leopold, Esquire, for General Counsel, and David Ross, Esquire for AA of the Office of Water (OW).  

The EPW Committee did not give a reason for the postponement nor announce a new date for the meeting, but it is being reported that EPW Committee members, including Senators Tammy Duckworth (D-IL), Joni Ernst (R-IA), and Chuck Grassley (R-IA), have reservations regarding Wehrum’s confirmation due to increasing friction with EPA on biofuels and the renewable fuel standard (RFS).  On October 16, 2017, 33 Senators on both sides of the aisle sent a letter to Administrator Pruitt regarding the proposed Renewable Volume Obligations (RVO) for advanced biofuel for 2018 and biomass-based diesel for 2019, stating the proposed volumes “could have a negative impact on jobs and economies” as they “would hold the biomass-based diesel volume for 2019 stagnant at 2.1 billion gallons and decrease the advanced biofuel volume for 2018 to 4.24 billion gallons.”

As mentioned in our blog item “Senate EPW Committee Hearing on Nominations of EPA Officials,” during the October 4, 2017, hearing, Dourson was questioned and criticized the most heavily, followed by Wehrum.

More information is available on our blog under key word nomination.

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By Lynn L. Bergeson, Christopher R. Bryant, Susan M. Kirsch, and Margaret R. Graham

On October 4, 2017, the U.S. Senate Committee on Environment and Public Works (EPW) held a hearing on the nomination of four U.S. Environmental Protection Agency (EPA) officials:

• Michael Dourson, Ph.D., for Assistant Administrator (AA) of the Office of Chemical Safety and Pollution Prevention (OCSPP);
• William L. Wehrum, Esquire, for AA of the Office of Air and Radiation (OAR);
• Matthew Leopold, Esquire, for General Counsel; and
• David Ross, Esquire, for AA of the Office of Water (OW).

More information on the backgrounds of these nominees is available in our blog item Senate EPW Committee to Hold Hearing on Nominations of EPA Officials.  Some of the highlights from the hearing portions on each of the nominees are below.  Dourson was questioned and criticized the most heavily, followed by Wehrum.

Michael Dourson, Ph.D., for AA of OCSPP

Dr. Dourson faced a barrage of criticism and questions from several EPW Committee members.  The first was from Senator Sheldon Whitehouse (D-RI), who stated that Dourson had relied on underrated exposure data when he was studying the dangers of smoking for Phillip Morris.  Senator Tammy Duckworth’s (D-IL) line of questioning was equally aggressive, referring to certain work Dourson conducted in Chicago as “pseudoscience” when he concluded there was no risk of adverse health effects.  Senator Cory Booker (D-NJ) claimed that the nomination of Dourson for a position that seeks to protect families from pesticides and toxic chemicals was “shocking,” as his track record has shown him to be a “corporate lackey” working only for the results that suit the corporations for which he conducted the assessments. 

Senator Kirsten Gillibrand (D-NY) was brought to tears recalling the fate of her constituents in Hoosick Falls, NY, regarding their experiences with perfluorooctanoic acid (PFOA) in the water supply.  Gillibrand asked Dourson whether he believed PFOA has been linked to kidney cancer and if he would uphold EPA’s standards for PFOA exposure.  Dourson replied that PFOA has been linked to some forms of cancer, science has progressed, and new standards are necessary.

Senator Jeff Merkley (D-OR) asked Dourson point blank whether chlorpyrifos has been linked to brain damage in children, as Dourson has worked on the safety aspects of this chemical for the chemical manufacturing community.  Dourson replied that he was aware of studies indicating some association and that the studies making these associations were part of a collaborative project that included government scientists.  Merkley noted Dourson’s involvement with several chemical trade groups and questioned whether he could be impartial.

Many of the Committee members asked why his recommendations on safe exposures to certain chemicals, including chlorpyrifos, trichloroethylene (TCE), and 1,4-dioxane, were many times higher than those of EPA’s standards.  Dourson’s response was that EPA in some instances does not use the most up to date science and data.  Dourson stated that he is committed to using the most credible and up to date science, as well as independent peer review, which is why many of his assessments differ from those at EPA.  He also noted that the use of good science should be the touchstone of everything that EPA does and is committed to working to ensure that the best science is considered and reviewed “even for the most vulnerable in our population,” through a transparent and a collaborative process. 

Ranking Member Senator Tom Carper (D-DE), Senators Kamala D. Harris (D-CA), Ed Markey (D-MA), Merkley, and Booker all asked Dourson to recuse himself from working on any chemical issues on which he had been contracted to work in the past on industry’s behalf, claiming that to do less would be unethical and pose a danger to the health and welfare of the American public.  Dourson replied that he would do what was requested of him by the EPA ethics officials, and that he will bring “new science and thinking” into the Agency. 

Senator Marion Rounds (R-SD) requested that Dourson keep Congress apprised on implementation of the Toxic Substances Control Act (TSCA), which Dourson confirmed he would do.

William Wehrum, for AA of OAR

In his opening statement, Wehrum signaled his intent to follow the “clear agenda” set by President Trump and EPA Administrator Scott Pruitt.  He also pledged to adhere to three key objectives set forth by Administrator Pruitt.  First, he noted that EPA’s role is to administer laws faithfully and to avoid the temptation to bootstrap its own powers and tools through rulemaking.  Second, he stated that EPA must “acknowledge, respect, and promote the critical role of the states in implementing Federal environmental laws and in protecting human health and the environment.”  Third, he emphasized the important role that the public plays in the regulatory process.

Ranking Member Senator Carper provided a particularly harsh critique of Wehrum’s fitness for office.  Although stating that he believed Wehrum to be a good person, he opined that he did not think him an appropriate choice for the OAR post, stating that “he defers too frequently to industry, suppresses scientific information, and declines to respond to Congressional inquiry.”  During a second round of questioning, Carper asked Wehrum to defend actions that, in Carper’s view, demonstrate that he is not faithfully committed to implementing the Clean Air Act (CAA). 

Democratic Senators’ questions to Wehrum belied their doubts about his adequacy to serve as the AA, while Republican committee members’ questions unsurprisingly were less severe.  When asked about potential conflicts, Wehrum noted that he would be required to comply with comprehensive ethics rules, if confirmed.  Senator James Inhofe (R-OK) cited a court decision on EPA’s Mercury and Air Toxics Standards (MATS) establishing emission limits for coal-fired power plants, and that the decision compels EPA to consider the costs of compliance in setting such standards.  To this Wehrum replied that EPA “absolutely” must follow the law and implement two goals:  to protect human health and the environment and to promote economic growth. 

Senator Merkley asked whether Wehrum believed that human activity is the major factor in climate change.  Wehrum responded that he believed it was a factor, but that human activity was not clearly the major factor. 

David Ross Esquire, for AA of OW, and Matthew Leopold, Esquire, for General Counsel

In stark contrast to the cross-examination endured by Dourson and Wehrum, Committee Members directed only a few, soft ball questions to David Ross and Matthew Leopold, the nominees for AA of OW and EPA General Counsel, respectively.  Ross currently serves as an Assistant Attorney General and Director of the Environmental Protection Unit for the Wisconsin Department of Justice. His water quality law and policy career also includes positions with the Wyoming Attorney General’s Office and the Wyoming Water and Natural Resources Division, as well as positions held in private environmental law practice.  Given Ross’ extensive experience in state government, it came as no surprise that his testimony emphasized the importance of cooperative federalism and the need for EPA to reach “outside the beltway” and improve its collaboration with state regulators.  Ross acknowledged that there are divergent views on how to best manage U.S. water resources, and that he is committed to identifying approaches that will protect public health and the environment without hindering economic growth.  Ross is likely to be confirmed without much resistance, although it is unclear at this time when his nomination will be scheduled for a Senate floor vote. 

Leopold is currently Of Counsel at Carlton Fields Jorden Burt, P.A., in their government law and consulting practice group.  He previously served as General Counsel for the Florida Department of Environmental Protection from 2013 to 2015.  Leopold’s testimony included expressions of his respect for environmental protection and the rule of law, the pride he has taken in helping to restore the Everglades ecosystem, and his work on reparations related to the Deepwater Horizon oil spill in the Gulf of Mexico.

Some press outlets are reporting that Dourson’s nomination may be at risk.  Given the simple majority vote needed to progress to a full Senate vote, this is by no means clear.  What is clear is that the hearing yesterday was as emotional as we have viewed in a long time, and a vivid depiction of how environmental issues, particularly issues involving chemicals and exposure to them, remain divisive, emotional, and political.

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