Two Key EPA Nominees Face Senate Panel Pending Confirmations

The Senate Environment and Public Works (EPW) Committee held a confirmation hearing on May 12 for two of President Biden’s nominees for the Environmental Protection Agency (EPA): Radhika Fox to be Assistant Administrator for Water and Dr. Michal Freedhoff to be Assistant Administrator for Chemical Safety and Pollution Prevention (OCSPP). Shannon Estenoz, whom President Biden nominated to be Assistant Secretary for Fish and Wildlife and Parks at the Department of the Interior, also was questioned at the confirmation hearing. These nominees represented a change for the EPW Committee because, as Ranking Member Shelley Moore Capito (R-WV) pointed out, in contrast to other nominees, all three already are acting in their nominated positions. The following highlights the major topics discussed at the confirmation hearing with EPA nominees Fox and Dr. Freedhoff and foreshadows the topics likely to be the subjects of greatest focus in congressional oversight in the near term.

WOTUS

Although Fox has been tapped by Administrator Regan to convene his highly-touted “EPA Council on PFAS,” questioning of Fox focused almost exclusively on how the Agency plans to define “waters of the United States” (WOTUS), a definition that has been rewritten twice in just the past six years. Ranking Member Capito started the hearing by asking Fox to assure her the Office of Water would not revert to the Obama Administration’s 2015 WOTUS rule. Sen. Mark Kelly (D-AZ) joined Republicans on the Committee to criticize the 2015 WOTUS rule, which they characterized as “overreaching” by the Obama Administration. Notably, senators did not explicitly suggest Fox keep the Trump Administration’s approach in the 2020 WOTUS rule.

In response to these concerns, Fox noted Administrator Regan had directed her office to review the 2015 and 2020 rules. In that review, her focus would be on understanding the “lived, practical experience” of people who must comply with the Office of Water’s rules, including the WOTUS rule. Fox outlined her plan for “robust stakeholder engagement,” including listening sessions during the summer and regional roundtables, in conjunction with the Army Corps of Engineers, during the fall. She explained her goal of creating an “enduring definition” of WOTUS that can withstand changes in administration, a goal with which senators on both sides of the aisle agreed.

TSCA

Dr. Freedhoff spent most of the confirmation hearing discussing the Toxic Substances Control Act (TSCA) and the 2016 amendments she helped craft while working as staff in the Senate. When asked about her priorities if confirmed, Dr. Freedhoff first named implementation of TSCA. Dr. Freedhoff acknowledged the EPA’s work over the last four years to develop risk evaluations for the first 10 chemicals under the 2016 amendments to TSCA; she noted it was time to move these chemicals into the risk management phase as quickly as possible. In response to questions from Sens. Capito and Ed Markey (D-MA), Dr. Freedhoff noted concerns that risk evaluations were “rushed” and said her office would consider supplementing some evaluations prior to drafting rules for the chemicals, particularly to address potentially exposed and susceptible subpopulations, including fence-line communities. Freedhoff remarked on her desire to use her office’s various authorities more assertively to regulate PFAS. She also expressed openness to hearing from a variety of stakeholders, including industry, as OCSPP moves into rulemakings.

Scientific Integrity

Both the EPA nominees and senators, particularly Committee Chair Tom Carper (D-DE) and Sen. Sheldon Whitehouse (D-RI), expressed a desire to “restore trust” in the EPA and to prioritize scientific integrity at the Agency. Notably, Sen. Whitehouse called on the EPA to have a process for hearing and investigating concerns from Agency employees who allege “interference” with science during the Trump Administration. Fox and Dr. Freedhoff named scientific integrity as a top priority for their offices if confirmed, with Fox highlighting her open-door policy on scientific integrity issues for the Office of Water and Dr. Freedhoff pointing to scientists’ concerns during the last four years and the need to restore the public’s trust in the Agency’s conclusions regarding chemicals and pesticides.

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Prior to being installed in her acting capacity at the EPA, Fox served as the CEO of the US Water Alliance. She is the first woman of color and first Asian American to be nominated to lead the Office of Water. Dr. Freedhoff previously served as staff on the Senate EPW Committee and, prior to that, worked for Sen. Markey for over a decade and a half. With their confirmation hearing behind them, Fox and Dr. Freedhoff will need to be voted out of the EPW Committee before advancing to a full Senate vote.

*Margaret Barry is a contributing author.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.