Senate Committee Holds Hearing on Nominee for EPA Assistant Administrator for Chemical Safety and Pollution Prevention

On May 12, 2021, the Senate Committee on Environment and Public Works held a hearing on several Department of the Interior and U.S. Environmental Protection Agency (EPA) nominees, including Michal Freedhoff, Ph.D., to be Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP). In her opening statement, Dr. Freedhoff stated that during her time working for the legislative branch, she believes that she “earned a reputation for being fair, approachable, substantive, and able to craft consensus by bringing people with disparate viewpoints together to effectively solve problems.” Dr. Freedhoff intends to bring a spirit of collaboration to the role of Assistant Administrator that would include ensuring chemical safety under the Toxic Substances Control Act (TSCA), providing safe, effective tools for farmers to protect the food supply under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and working to incentivize more sustainable practices and products in pollution prevention programs. Dr. Freedhoff testified that if confirmed, she will ensure that the activities of OCSPP are conducted transparently using the best available science and will be informed by EPA’s expert career staff. Dr. Freedhoff committed that all OCSPP decisions will be well documented and transparently made, and that she will seek and incorporate input from all stakeholders.

Senator Shelley Moore Capito (R-WV), Ranking Member of the Committee, asked Dr. Freedhoff about EPA’s delay in regulating per- and polyfluoroalkyl substances (PFAS). According to Dr. Freedhoff, the delay is partly due to gaps in the research. Dr. Freedhoff noted that the Committee’s recent PFAS legislation directs EPA’s Office of Research and Development to find a way to prioritize PFAS. OCSPP efforts to address PFAS include the Toxics Release Inventory (TRI) language that Capito co-authored and that will give EPA information on which PFAS are being released into the environment; a proposed reporting rule under review at the Office of Management and Budget (OMB) that will provide EPA a snapshot of what is in commerce; and a recently announced policy designed to prevent unsafe new PFAS from entering commerce.

Committee Chair Thomas Carper (D-DE) stated that he has heard from environmental groups that disagree with EPA’s assumption that workers will always be wearing protective gear, while companies feel that EPA made unrealistic assumptions about risks to workers. Carper asked Dr. Freedhoff how workers’ safety concerns should be addressed. Dr. Freedhoff responded that she welcomes input from industry that has information that EPA needs to make its decisions. If industry shows OCSPP that the measures they have taken to protect workers is enough to address the risk, then the rule is just going to say “keep on doing what you’re doing.” Dr. Freedhoff thinks that EPA can do a better job with risk communication. TSCA requires EPA to consider potentially exposed and susceptible subpopulations, which includes workers, but stating that a risk exists to workers in the absence of protections does not mean the protections are absent at chemical companies. Dr. Freedhoff stated that OCSPP will do better in the future to provide context that is important for everyone to understand.

Senator Sheldon Whitehouse (D-RI) asked, for the record, how EPA will respond when people come forward to disclose things that were done wrong at EPA in the past. Whitehouse wants to know whether they will be told here is the system for dealing with their concerns, here is how EPA is going to hear them out, and here is EPA’s response plan for the predicament that it has been left.

Senator Cynthia Lummis (R-WY) commented that one of OCSPP’s duties is to weigh the benefits and risks associated with chemicals, and she asked how Dr. Freedhoff will do that. Dr. Freedhoff responded that both TSCA and FIFRA require EPA to consider costs, benefits, and risks. Under TSCA, Congress gave EPA the authority to exempt uses of chemicals from its rules if those uses are needed for an economically significant reason. If confirmed, Dr. Freedhoff intends to follow the law.

Senator Mark Kelly (D-AZ) asked about the final rule for the persistent, bioaccumulative, and toxic (PBT) chemical phenol, isopropylated phosphate (3:1) (PIP (3:1)) and whether OCSPP engaged with the U.S. Department of Commerce to discuss how to provide regulatory stability under TSCA for the semiconductor industry. Dr. Freedhoff responded that the previous Administration did nothing wrong from a process perspective when issuing the final PBT rules: they asked for public comment, reached out to stakeholders, and tried hard to obtain the input of regulated companies that would be subject to the rules. When EPA began hearing that companies had not realized the implications of the PBT rules on their businesses, EPA took quick action to give them more time and flexibility to provide EPA the information it needs. Dr. Freedhoff encouraged the semiconductor and other industry sectors to provide that information because EPA career staff wants to address valid concerns that have been raised about those rules. Dr. Freedhoff noted that in terms of interagency coordination, there is a TSCA interagency coordinating group that includes representatives from many different agencies, including the U.S. Department of Commerce, the U.S. Department of Defense, the National Aeronautics and Space Administration (NASA), the Small Business Administration (SBA), and many others. According to Dr. Freedhoff, career scientists meet with them on a frequent basis because EPA has a strong interest in understanding what other agencies feel their needs are as they move forward with regulatory actions.

Carper asked Dr. Freedhoff what a few of her top priorities are. She responded that one of her first priorities is implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) and beginning to write protective chemical safety rules. Another priority is restoring trust in EPA so that when EPA states that the chemicals companies use are safe, the public then has confidence in the products that the companies make. Carper concluded his questioning by asking what question Dr. Freedhoff wished she had been asked but was not. Dr. Freedhoff stated that she would like to have been asked how EPA responded to COVID-19 and the reason for that is because OCSPP “dropped everything” to respond to the virus. About 100 EPA career scientists focused on approving approximately 550 different disinfectants that were certified as effective against COVID-19. The scientists also helped support EPA’s efforts to crack down on fraudulent product claims concerning COVID-19.

Senator Ed Markey (D-MA) asked Dr. Freedhoff how EPA will evaluate dangerous chemicals more quickly under the constraints that exist statutorily. According to Dr. Freedhoff, OCSPP is examining the first ten risk evaluations with the objective to move as many of them as possible into rulemaking. She stated that there may be times when OCSPP has to supplement some of them to make sure that the rules that flow from them are protective and legally defensible. For legacy exposures, Dr. Freedhoff stated that there was a court decision requiring EPA to consider legacy exposures, and OCSPP will abide by that decision. More generally, Dr. Freedhoff thinks the expectation was that EPA would study the chemicals comprehensively, meaning knowing whether people are being exposed from air, water, or disposal of those chemicals. OCSPP is going through the first ten risk evaluations, but recognizes that the point of TSCA is to write chemical safety rules that are protective. OCSPP wants to move past the risk evaluation phase and on to the protection phase. This includes examining whether there are fenceline communities that have been disproportionately exposed to pollution and whether there is more that EPA needs to do as it moves to rulemaking.

Commentary

The hearing offered no surprises and Dr. Freedhoff comported herself with her characteristic calm and competent professionalism. Topics expected to arise — PFAS, PIP (3:1), and new chemicals — were flagged, but hardly discussed in any meaningful way. Dr. Freedhoff’s repeated commitment to transparency, following the science, respecting the career staff’s views, and addressing disproportionate exposure to chemicals are comforting and rang true. Given the urgent issues before OSCPP, Dr. Freedhoff is more than up to the challenge. Dr. Freedhoff’s biggest impediment may be the resource constraints within OCSPP. OCSPP continues to be understaffed, with many vacancies to fill. Furthermore, it is not clear that even if fully staffed, OCSPP would be staffed sufficiently for the expansive amount of work OCSPP has on its plate. Finally, the realities of federal hiring and the need for new staff and managers to learn the esoterics of TSCA and FIFRA will continue to hamper OCSPP’s ability to meet its many statutory deadlines for some time to come.