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The Insider

Wheeler Nomination May Give Senate Democrats Leverage On EPA Policies

President Donald Trump's long-awaited nomination of Acting EPA Administrator Andrew Wheeler to lead the agency on a permanent basis may give Senate Democrats new leverage to demand agency policy changes in return for quick confirmation -- even though they lack the votes to block Wheeler's nomination permanently.

Wheeler, officially nominated Jan. 9, has already promised to review and potentially rework some of EPA's key Toxic Substances Control Act (TSCA) programs following the confirmation of new toxics chief Alexandra Dunn in the final hours of the 115th Congress. His commitments are seen as an attempt to assuage Democrats' concerns about EPA's TSCA program in exchange for not attempting to halt Dunn's nomination -- a strategy the minority might repeat with Wheeler.

Even though Democrats lost ground in the Senate midterms, giving Republicans an expanded 53-47 majority, they still have the ability to delay votes through procedural measures.

As an example of the maneuvers that Democrats could still use, Sen. Bob Menendez (D-NJ) earlier this month blocked what would have been the confirmation of waste office nominee Peter C. Wright in a voice vote by demanding a roll call instead, when there was no time for such a step in the last-minute Senate session before the 115th Congress ended on Jan. 3.

Since his nomination expired along with all others that were still pending at the beginning of the 116th Congress, Wright will have to await a new formal nomination from Trump, followed by another confirmation hearing and floor vote. That process that could take weeks or months if Democrats seek to delay it again. Both chambers reconvened for the new session of Congress on Jan. 3.

Although the Senate Environment & Public Works Committee is yet to schedule a date for Wheeler's confirmation hearing, the panel's ranking Democrat Sen. Tom Carper (DE) has already signaled that he will attach similar demands to Wheeler's nomination that was formalized on Jan. 9. Carper told reporters on a recent call that "I think there is a good chance we will pursue a course not dissimilar to" the negotiations prior to the vote on Dunn.

In particular, Carper said he might seek a commitment to preserve the Obama-era mercury and air toxics standards (MATS) for power plants, after EPA proposed scrapping the finding that such standards were “appropriate and necessary”:

Before Confirming Wheeler, Carper Seeks EPA Vow On Safeguarding MATS
Sen. Tom Carper (D-DE), ranking member of the environment panel, might seek to pressure acting EPA chief Andrew Wheeler into agreeing to safeguard the Obama-era utility air toxics rule and other major regulations in exchange for Democrats not attempting to block his confirmation if he is nominated to head the agency permanently.

EPA's proposal says it plans to leave MATS in place, but critics including Democratic lawmakers say revoking the finding would render the rule vulnerable to court challenges.

Any pledge to protect MATS from rollbacks would join a set of promises Wheeler made to secure a confirmation vote for Dunn, starting with changes to how the toxics office approaches its controversial framework for how officials will review new chemicals under TSCA:

To Win Dunn's Confirmation, EPA Vows To Revise Key TSCA Programs
Acting EPA Administrator Andrew Wheeler has pledged to review and in some cases revise key programs governing new and existing chemicals the agency is seeking to create under the reformed Toxic Substances Control Act (TSCA), commitments that helped win 11th-hour Senate confirmation for the agency toxics chief, Alexandra Dunn.

Wheeler also promised to seek peer review by the National Academy of Sciences for the agency's policy on how it will consider data it uses when it assesses risks of existing chemicals, which was one of Democrats' key demands during Dunn's confirmation hearing, and committed to issue a supplement to a proposed rule restricting new uses of a perfluorinated compound.

Democrats still have other priorities for toxics policy that remain outstanding even after those promises, including reauthorization of the Pesticide Registration Improvement Act (PRIA), which has been complicated both by proposed rollbacks from EPA and the partial government shutdown that has ensnared the agency.

But Wheeler pledged to drop changes to pesticide handling standards for farmworkers as part of Dunn's confirmation, setting the stage for a fresh PRIA reauthorization push:

Democrats Seek PRIA Passage After EPA Vows To Preserve Pesticide Rules
Senate Democrats are calling for Congress to renew EPA's authority to collect industry fees to support timely pesticide reviews after the agency pledged to preserve Obama-era rules protecting farmworkers in exchange for toxics chief Alexandra Dunn's confirmation -- though the government shutdown still looms over the program.

Carper and other EPW Democrats have been less vocal about their priorities for the waste office that might be tied to a vote on Wright.

But there have been numerous calls for more transparency in how the agency has handled site cleanups under Superfund and other waste laws, most recently a push for new investigations into the Resource Conservation & Recovery Act programs:

Indiana Site Drives Citizen Calls For IG Probe Into RCRA Cleanup Program
Citizen groups are urging EPA's Inspector General (IG) to investigate alleged weaknesses in the agency's Resource Conservation & Recovery Act (RCRA) corrective action program, particularly gaps in its handling of vapor intrusion risks, arguing that their own review of failures at an Indiana waste site highlight a pattern of ineffective management.

Inside EPA will have full coverage of negotiations surrounding potential votes on Wheeler and Wright, and the changes to EPA's agenda from concessions it has already made.