Wheeler responds to dozens of inquiries from senators

Source: By E&E News staff • Posted: Wednesday, January 30, 2019

Acting EPA Administrator Andrew Wheeler has answered dozens of questions from senators as part of his confirmation process to lead the agency.

Wheeler, whom President Trump formally nominated to lead EPA earlier this month, provided written responses obtained by E&E News to queries on several matters before the agency, including air and water pollution rules, clean car standards, chemicals, the Superfund program, and biofuels. Wheeler’s Jan. 16 confirmation hearing before the Senate Environment and Public Works Committee sparked these “questions for the record.”

Wheeler also answered a number of questions about how the partial government shutdown affected EPA. The agency used carryover funds to stay open for the first week of the funding lapse but decided to close its doors after that. Roughly 13,000 EPA employees furloughed during the shutdown returned to work this week once lawmakers approved new government funding.

Some of those questions focused on Wheeler’s preparation for his hearing, which occurred during the shutdown. The acting EPA chief said the number of staff needed to fulfill the agency’s constitutional duties increased in EPA’s latest shutdown plan to 28 employees to “directly support” preparing for the hearing. Wheeler also said no contractors performed work related to his nomination during the shutdown.

Wheeler also said “a portion of the staff” from EPA’s public affairs office worked during the shutdown. Some of their work was to help prepare him for the hearing. The agency’s Twitter feed came back to life the day of his hearing to promote Wheeler (E&E News PM, Jan. 16).

In addition, 12 EPA employees were brought in to process payments for services for “excepted” work needed to protect life and property during the shutdown. But some of EPA’s enforcement work came to a halt during the funding lapse.

“EPA did not conduct any routine, planned civil enforcement inspections since December 29, 2018, until the agency reopened after January 25, 2019,” Wheeler said in one response, although he noted that criminal investigations continued as well as work by emergency response and Superfund personnel needed to protect life and property.

“This question assumes that inspections are conducted evenly throughout the year. In actuality, the majority of inspections occur during the summer and warmer months,” Wheeler said.

During the shutdown, Wheeler acknowledged that EPA was forced to temporarily suspend testing, enforcement investigations and technical support for states contaminated with per- and polyfluoroalkyl substances, or PFAS. The lapse in appropriations also delayed interagency review of EPA’s forthcoming PFAS action plan.

The shutdown prevented EPA from overseeing state monitoring of Superfund sites and at least two toxic waste removal actions, Wheeler said.

Wheeler also expressed sympathy for EPA employees who were furloughed during the shutdown.

“I sympathize with those impacted by the shutdown. I remember experiencing a shutdown as a career EPA employee in the 1990s,” Wheeler said.

He also said the agency has not collected information on staff members who faced financial hardship during the shutdown because it is not part of EPA’s mission, and those data would be protected under privacy rules.

The questions for the record also detailed the extent of EPW Committee ranking member Tom Carper’s frustration with EPA’s responses to Democratic oversight, which has been a source of friction since the beginning of the Trump administration.

The Delaware Democrat asked Wheeler to give a “specific date” by when the committee could “expect to receive EPA’s complete response” to 30 letters. For 12 of them — including inquiries about former Administrator Scott Pruitt’s trip to Morocco and questions about the agency’s communications with industry about fuel economy standards — the acting chief offered the same vague reply: “We look forward to continuing to work with your staff to provide a response.”

Asked for reaction to Wheeler’s written responses, Carper said in a statement, “I never expected that Mr. Wheeler and I would agree on policy — but I also didn’t expect that, when faced with ‘win-win’ policy opportunities that protect the environment and public health with support of regulated industry, Mr. Wheeler would fail to act responsibly each and every time.”

Carper listed Wheeler’s actions or lack of action on clean car standards, mercury emissions and chemicals. “I urge my colleagues to join me in urging Mr. Wheeler to reverse course on these misguided proposals and restore public confidence in EPA’s critical mission,” he said.

Mike Danylak, a spokesman for EPW Chairman John Barrasso (R-Wyo.), told E&E News that the senator is reviewing Wheeler’s responses to the questions for the record.

“The chairman is very supportive of Mr. Wheeler’s nomination and looks forward to advancing him out of the committee next Tuesday,” Danylak said.

Car standards and climate

Carper asked Wheeler a number of questions about the Trump administration’s rollback of Obama-era clean car rules.

In particular, Carper asked about reports that political appointees at the Department of Transportation steamrolled EPA career staff in their rush to finalize the rollback (Greenwire, Aug. 2, 2018).

Wheeler pushed back on those reports, saying, “I greatly value the views and technical input of EPA career staff. I have not in any way discounted them.”

Carper also pressed Wheeler to specify whether any EPA employees worked on the car rules rollback during the partial government shutdown. Wheeler responded: “I and other Senate-confirmed senior managers have conferred on this rule. No career employees worked on the rulemaking during the shutdown.”

Senators sought more information about Wheeler’s understanding of climate change, as they pushed him on the agency’s actions to undo Obama-era climate rules.

Wheeler stopped short of saying humans were primarily responsible for climate change but noted that mankind did have an impact on the climate.

The acting administrator stated he had been formally briefed once on the Fourth National Climate Assessment by career EPA employees involved in preparing it. He noted that other scheduled briefings had been postponed due to the shutdown.

He did not name any specific “actionable findings” for EPA from the report but noted the agency was incorporating the findings by including a “social cost of carbon” and “social cost of methane” in its rulemaking analysis. He also noted the agency prioritized risk communication and said the government needed to be more proactive in explaining the assessment’s findings. He said the press had misunderstood the future scenarios laid out in the report.

“I still have additional briefings from my career staff planned which have not yet taken place, so I’m reserving judgment on actionable findings,” he said.

Wheeler maintained he did not “intend” to reconsider the 2009 endangerment findings but declined to promise to not revisit the foundation of the agency’s climate policy.

“Having said that, as Administrator, I cannot commit to take any particular action or prejudge the outcome of any matter that might be before me,” he said.

Sen. Jeff Merkley (D-Ore.) pressed Wheeler on a number of actions the agency had taken to undo rules controlling emissions from power plants and the oil and gas sector.

He asked Wheeler about the recent study that projected emissions from individual plants would increase as a result of the Affordable Clean Energy rule’s focus on solely increasing power plant efficiency.

The researchers noted in their work that as plants became more efficient, they would also run more often and over a longer life span than initially projected, leading to increases in emissions even compared with having no rule in place.

Wheeler did not address this finding, instead maintaining the Clean Power Plan had never been put into action and so had produced no emissions reductions. But he noted the agency would take these concerns into account in crafting its final rule.

Chemicals and mercury rule

PFAS were another recurring topic of concern in the senators’ questions.

Wheeler repeatedly defended EPA’s advisory levels for PFOA and PFOS, two widespread types of PFAS. A study from the Department of Health and Human Services and some state regulators have called for tighter limits on those chemicals, which were used in everything from nonstick cookware to firefighting foam and are now tied to cancer and other ailments.

“EPA recognizes that other health agencies … may issue different health-based values for similar chemicals based on their own statutory mandates, purposes and analyses, including more stringent values that may reflect more conservative assumptions,” he said. But the agency’s “health advisory level offers a margin of protection for all Americans throughout their life from adverse health effects resulting from exposure to PFOA and PFOS in drinking water.”

Separately, EPA appears to have determined it won’t set legal limits on PFOA and PFOS, an expected decision that’s set shock waves through Congress, where there’s growing bipartisan concern about those chemicals and other PFAS (Greenwire, Jan. 29).

EPA’s long-delayed study of the health risks posed by formaldehyde — a precursor for potential new regulation of the widely used industrial chemical — also came up in the questions.

Because such Integrated Risk Information System “assessments are major investments in both time and resources, in an August 10, 2018 Memorandum to Agency program offices I requested an update of top priorities,” Wheeler responded to several inquiries about the highly anticipated study. “Formaldehyde was not identified as a top priority. … Should the priority needs change, we will move forward with the draft IRIS formaldehyde assessment.”

Carper and other lawmakers pressed Wheeler for details on the agency’s rationale for revisiting the agency’s 2012 Mercury and Air Toxics Standards, which are credited with slashing emissions of the toxic metal and other hazardous pollutants from coal-fired power plants. Under a proposed rule unveiled last month, EPA is seeking to scrap the legal underpinning that it is “appropriate and necessary” to regulate power plant releases of mercury and other hazardous pollutants. Although the proposal would leave the actual emissions limits in place, critics fear it could open the door to an industry lawsuit intended to dismantle the standard.

Inflaming the debate over the draft rule is the fact that methylmercury, an organic form of the metal, is a neurotoxin that can harm babies’ brain development in the womb. One of the most pointed questions came from Sen. Kirsten Gillibrand (D-N.Y.), a recently declared presidential candidate, who asked whether “protecting the lives of pregnant women and children from mercury poisoning is an ‘appropriate and necessary’ role for the EPA.”

“Of course, I care about protecting the lives of pregnant women and children from the harmful effects of all forms of pollution,” Wheeler wrote in response. As he did for other MATS queries, he referred Gillibrand to the text of the proposed rule, now awaiting publication in the Federal Register.

Several members also asked Wheeler to explain his decision to fire an expert panel charged with advising EPA during a closely watched review of the agency’s air quality standards for particulates. The panel was an adjunct to the seven-member Clean Air Scientific Advisory Committee (CASAC), which is authorized under the Clean Air Act to assist in those reviews. Under appointments made by Wheeler and Pruitt, the committee is now mostly made up of state and local regulators, as opposed to scientists with expertise in specific disciplines.

While critics, including some former CASAC members, have previously questioned its ability to carry the review, Wheeler said he believes the committee “has the experience and expertise needed to serve in this capacity.” He added that EPA can also tap advice from other experts to assist CASAC as needed.

He dismissed a suggestion that he recuse himself from further involvement in EPA’s efforts to rework its 2015 regulations that set first-ever federal rules on the disposal of coal ash, the waste produced by coal-fired power plants.

Before joining EPA, Wheeler was a contract lobbyist whose clients included Murray Energy Corp., the Ohio-based coal company headed by Bob Murray. While Murray in 2017 unsuccessfully pushed the White House for an executive order suspending implementation of the regulations, Wheeler said he did not write or review the draft order.

“Does not apply,” he wrote in response to the recusal suggestion.

Water

In response to another question from Gillibrand, Wheeler justified the agency’s fiscal 2019 budget request that proposed funding cleanups of the Great Lakes and Chesapeake Bay at just 10 percent of historical levels and zeroing out other regional cleanup programs.

Gillibrand asked whether Wheeler would “support continued funding for the EPA’s geographic programs.”

Wheeler answered that he recognizes “the importance of these large regional water bodies to the neighboring communities and the nation.” But he said the fiscal 2019 budget request “focuses and prioritizes funding on core programs with a national scope and unique federal role.”

“I also understand and support the role the EPA can play as a convener in certain regional multi-state programs such as the Great Lakes, at the same time recognizing the importance of the local communities and states in leveraging resources and ensuring progress,” he replied.

Wheeler also dodged a number of questions related to the impacts of the Trump administration’s proposed Waters of the U.S., or WOTUS, rule that would erase Clean Water Act protections for streams and wetlands without relatively permanent surface water connections to larger downstream waters.

Wheeler also did not provide Carper with information he requested on estimates of miles and acres of streams and wetlands that would not be protected by the new WOTUS proposal.

Documents released under a Freedom of Information Act request show that EPA and the Army Corps discussed how a proposal erasing protections for streams and wetlands without continuous surface water connections to downstream waters could eliminate protections for more than 18 percent of streams and 51 percent of wetlands (Greenwire, Dec. 11, 2018).

But Wheeler told Carper there are “data limitations that prevent quantitative national estimates for many Clean Water Act programs due in large part to the fact that there is no nationwide map depicting ‘waters of the United States’ under previous regulations nor that could identify waters that would be jurisdictional under the proposal.”

In response to a question from Sen. Ben Cardin (D-Md.) about whether erasing protections for isolated Delmarva Peninsula wetlands in Maryland and Delaware “could mean less flood protection for infrastructure on Maryland’s eastern shore and more pollution flowing into the Chesapeake Bay and its tributaries,” Wheeler ignored the flooding concerns.

He instead reiterated arguments the Trump administration has made that the proposal will allow states to step up their own protections.

He noted that Maryland this year is set to release a watershed implementation plan as part of its role in the Chesapeake Bay cleanup and said that document “could include management strategies for Delmarva potholes and other aquatic features in Maryland.”

When Sen. Sheldon Whitehouse (D-R.I.) asked whether the Trump administration planned to issue any legal or scientific support documents for the rule, akin to the connectivity report compiled by the Obama administration to support its Clean Water Rule, Wheeler responded only that EPA and the Army Corps had released an economic analysis and analysis of state programs along with their WOTUS proposal.

Biofuels

Wheeler provided answers on several ethanol-related questions, including from Sens. Joni Ernst (R-Iowa) and John Boozman (R-Ark.).

Boozman asked about EPA measures to reduce the risk of misfueling, often raised by critics of higher-ethanol blends. Wheeler described regulations the agency has in place, including specific measures connected with the availability of E15 — which is 15 percent ethanol — at certain times of the year.

Ernst pressed Wheeler on waivers the agency has granted small refiners to ease requirements for renewable fuel credits, known as renewable identification numbers. Ethanol advocates, including Ernst, have criticized the agency for granting increased numbers of waivers under Wheeler’s predecessor, Pruitt.

Wheeler outlined some of the criteria the agency uses in determining whether a refinery faces hardships worthy of a waiver. Those include whether RINs are a net revenue or a net cost, the geographic location of a refinery, access to capital and credit, and “relative refining margin measure,” he said.

Wheeler said EPA continues to work on a backlog of 21 applications for “pathways” for new renewable fuel feedstocks. Additional regulations will come this year that should clarify the process for considering such applications, he said.

Reporters Kevin Bogardus, Niina Heikkinen, Marc Heller, Corbin Hiar, Maxine Joselow, Geof Koss, Sean Reilly and Ariel Wittenberg contributed.

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