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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.


 

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.


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Senate Committee on Environment and Public Works (EPW) has rescheduled the full committee hearing on four U.S. Environmental Protection Agency (EPA) nominations to Wednesday, October 4, 2017, at 10:00 a.m. (EDT).  The four nominations are:

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

More information on the nominees is available in our blog item Senate EPW Committee to Hold Hearing on Nominations of EPA Officials.  


 

By Christopher R. Bryant and Margaret R. Graham

On September 26, 2017, the U.S. Environmental Protection Agency (EPA) announced that it has launched the Smart Sectors program in the Office of Policy.  82 Fed. Reg. 44783.  Based on EPA’s Sector Strategies program, the Smart Sectors program “will re-examine how EPA engages with industry in order to reduce unnecessary regulatory burden, create certainty and predictability, and improve the ability of both EPA and industry to conduct long-term regulatory planning while also protecting the environment and public health,” according to the notice.  The industry sectors EPA will initially seek to work with are: aerospace; agriculture; automotive; cement and concrete; chemical manufacturing; construction; electronics and technology; iron and steel; oil and gas; ports and shipping; and utilities and power generation.  A pre-publication notice issued on September 28, 2017, scheduled for publication on September 29, 2017, identified also the industry sectors of forestry and paper products; mining; and ports and marine (and deleted ports and shipping).

Under this program, EPA will designate staff-level points of contact who will act as liaisons among industry trade associations and companies, EPA program and regional offices, state and local governments, and other stakeholder groups.  The sector liaisons will focus their attention primarily on three main areas:  building relationships and improving customer service to sectors; developing additional expertise in each industry’s operations and environmental performance; and informing the planning of future policies, regulations, and EPA processes.  EPA anticipates that participating industries will benefit from coordinated, cooperative, and constructive problem-solving with government.


 

By Lynn L. Bergeson

The hearing on the nominations of four U.S. Environmental Protection Agency (EPA) officials by the U.S. Senate Committee on Environment and Public Works (EPW) scheduled for September 20, 2017, has been postponed without any specific reasons; a new hearing date has not been provided.  Bergeson & Campbell, P.C. (B&C®) will be monitoring the Senate EPW Committee calendar for the new hearing date.

More information on the nominees is available in our blog item Senate EPW Committee to Hold Hearing on Nominations of EPA Officials.  


 

By Lynn L. Bergeson and Margaret R. Graham

On September 14, 2017, the U.S. Environmental Protection Agency (EPA) filed a motion in the two Ninth Circuit Court of Appeals cases regarding review of the EPA Toxic Substances Control Act (TSCA) framework rule Procedures for Chemical Risk Evaluation under TSCA:  Safer Chemicals Healthy Families v. EPA, Case No. 17-72260 (filed August 10, 2017); and Environmental Defense Fund v. EPA, Case No. 17-72501 (filed September 6, 2017), requesting that the cases be transferred to the Fourth Circuit and to hold the cases in abeyance.  In the motion, EPA states three reasons why these cases should be transferred:

  1. "It is in the interest of judicial economy for the same court to hear the challenges to both EPA Rules,” and “[a]lthough the two Rules are distinct and have separate administrative records, the parties anticipate that there will be some overlap of issues.”
  2. “It would be more convenient for the parties and conserve travel resources for these cases to be heard in the Fourth Circuit, because all counsel of record are located in Washington, DC, or New York.”
  3. “The Fourth Circuit may be able to resolve the petitions for review more quickly than this Court given the respective complexity of the courts’ dockets.”

In this motion, EPA also requests for these cases to be held in abeyance as it “will conserve party resources to wait until resolution of EPA’s motion to transfer before completing any scheduled filings, particularly because the two have different schedules” and “the deadline for interested persons to file petitions for review of the Prioritization and Risk Evaluation Rules has not yet expired…. additional petitions for review … could be filed as late as October 2, 2017.” 

In Case No. 17-72260, Petitioners’ briefs are due October 30, 2017, and Respondent EPA’s briefs are due November 28, 2017.  A briefing schedule has not been scheduled yet in Case No. 17-72501.  On September 11, 2017, in Alliance of Nurses for Healthy Environments, et al. v. EPA, Case No. 17-1926, the Fourth Circuit case regarding review of EPA’s TSCA framework rule Procedures for Chemical Risk Evaluation under TSCA, the Fourth Circuit rescinded the briefing schedule.  A new briefing schedule has not been set. 

More information on these petitions for review is available on our blog under key phrases framework rules and petition for review.  


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Senate Committee on Environment and Public Works (EPW) has announced that it will hold a hearing on the following U.S. Environmental Protection Agency (EPA) nominations on Wednesday, September 20, 2017, from 10:00 a.m. to 12:00 p.m. (EDT):

  1. Michael Dourson, Ph.D., for Assistant Administrator of the Office of Chemical Safety and Pollution Prevention (OCSPP).  Dr. Dourson is a professor in the Risk Science Center, Environmental Health, at the University of Cincinnati, Ohio, College of Medicine.  He founded the nonprofit Toxicology Excellence for Risk Assessment and has previously worked at EPA as the Associate Director of the Environmental Criteria and Assessment Office, among other positions.  Dr. Dourson has served in multiple positions at the American Board of Toxicology, Society of Toxicology, Society for Risk Analysis, and Toxicology Education Foundation. 
  2. Matthew Leopold, Esquire, for General Counsel.  Mr. Leopold is currently Of Counsel at Carlton Fields Jorden Burt, P.A., and focuses on federal and state administrative cases, federal and state enforcement actions, natural resource matters, and pollution cleanup issues, especially as they relate to electric utilities.  He previously served as General Counsel for the Florida Department of Environmental Protection from 2013 to 2015 and as an attorney for the U.S. Department of Justice, Environment and Natural Resources Division, from 2007 to 2013. 
  3. David Ross, Esquire, for Assistant Administrator for Water.  Mr. Ross currently serves as the Director of the Environmental Protection Unit for the Wisconsin Department of Justice where he is responsible for representing the Wisconsin Department of Natural Resources and the State of Wisconsin in federal and state court, including defending agency decisions, prosecuting environmental enforcement cases, and providing legal and policy advice on environmental and natural resources issues.  Prior to this, he served as the Senior Assistant Attorney General in the Wyoming Attorney General’s Office from 2014 to 2016, and from 2002 to 2014, he practiced law at three Washington, D.C. law firms in their environmental groups.
  4. William L. Wehrum, Esquire, for Assistant Administrator for Air and Radiation.  This position’s jurisdiction includes climate change programs.  Mr. Wehrum is currently a Partner at Hunton & Williams LLP, and focuses on the regulation of oil and gas production and refining operations.  He has a long history with EPA, serving as Counsel to the Assistant Administrator for Air and Radiation from 2001 to 2005, and as the Acting Assistant Administrator for Air and Radiation from 2005 to 2007.  

 

By Lynn L. Bergeson and Margaret R. Graham

On September 6, 2017, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register extending the period for public comments on the candidates for consideration for the Science Advisory Committee on Chemicals from September 5, 2017, to September 17, 2017.  Comments can be submitted online in Docket Identification Number EPA-HQ-OPPT-2016-0713.

EPA is considering candidates for SACC membership listed in the August 26, 2016, Federal Register notice pool of requested nominees; the 29 candidates for membership identified in the December 9, 2016, Federal Register notice; and the additional candidates provided in the August 3, 2017, Federal Register notice.  More information on the background, qualification of members, and the process of obtaining nominees is available in our memorandum EPA Seeks Comment on Nominations to “Augmented” Science Advisory Committee on Chemicals.


 

By Lynn L. Bergeson and Margaret R. Graham

On September 1, 2017, the Environmental Defense Fund (EDF) filed a petition for review in the U.S Court of Appeals for the D.C. Circuit (No. 17-1201) of the U.S. Environmental Protection Agency’s (EPA) final Toxic Substances Control Act (TSCA) framework rule TSCA Inventory Notification (Active-Inactive) Requirements, published on August 11, 2017 (82 Fed. Reg. 37520). 

This is the third and final challenge by EDF to the framework rules implementing amended TSCA (there are only three framework rules), but the seventh total challenge, as other parties have also petitioned for review.  On August 11, 2017, EDF petitioned for review of the TSCA framework rules Procedures for Chemical Risk Evaluation under TSCA and the final rule Procedures for Prioritization of Chemicals for Risk Evaluation, filed on August 11 (Second Cir. Case Nos. 17-2464 and 17-2403, respectively).  Per the Consolidation Orders of the United States Judicial Panel on Multidistrict Litigation, both of EDF’s August 11 petitions have now been consolidated with other petitions for review of the same orders.  Case No. 17-2464 was moved to the Fourth Circuit, and Case No. 2403 was moved to the Ninth Circuit. 

In the Fourth Circuit, the opening brief, record from agency, and the appendix are due September 20, 2017, and the response brief is due October 20, 2017.  In the Ninth Circuit, the Petitioners’ briefs are due October 30, 2017, and Respondent EPA’s briefs are due November 28, 2017.                                       


 

By Lynn L. Bergeson and Margaret R. Graham

On August 18, 2017, the U.S. Environmental Protection Agency (EPA) announced that it would be holding a public workshop on the use of the paint remover methylene chloride in furniture refinishing on September 12, 2017, from 9:00 a.m. to 4:00 p.m. (EDT) at its Region 1 Headquarters in Boston, Massachusetts.  It is holding the workshop in collaboration with the Small Business Administration (SBA) Office of Advocacy.  The meeting aims to “facilitate an exchange of information on existing use practices and furniture refinishers’ experience, in general, with paint removal products and methods.”

EPA’s January 19, 2017, proposed rule proposed to prohibit the manufacture (including import), processing, and distribution in commerce of methylene chloride for consumer and most types of commercial paint and coating removal under Section 6 of the Toxic Substances Control Act (TSCA).  EPA states that this workshop will allow “[f]ederal and state governments, industry professionals, furniture refinishing experts, non-government organizations, and academic experts, among others, [to] discuss the role of methylene chloride in furniture refinishing, potential alternatives, economic impacts, and other issues identified in EPA’s January 2017 proposed rule on methylene chloride,” and information learned from this workshop will allow it to “better understand current work practices and obtain additional information on the economic considerations involved in selecting chemical products for paint and coating removal in the furniture refinishing sector.”

EPA will open a docket at www.regulations.gov in Docket ID EPA-HQ-OPPT-2017-0139 upon publication of the notice of the meeting in the Federal Register, and will be accepting comments until November 12, 2017Registration for the meeting is available online.  Registrants can choose to attend in-person, via webinar, or via phone.

 

 


 
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