Washington, DC – Today, 10 Senators demanded to know how a still-unconfirmed nominee to run the Environmental Protection Agency’s (EPA) toxics office is already at work at the EPA. Last week, the EPA admitted that the nominee, chemical industry consultant Michael Dourson, has been serving as an “adviser to the administrator.” The Senate Environment and Public Works Committee has yet to even vote on Dourson; his nomination for Assistant Administrator of the Office of Chemical Safety and Pollution Prevention is among those the Committee will take up tomorrow. This skirting of the Senate’s constitutional advice and consent role, write the Senators to Dourson, raises a number of concerns, including possible violation of the Federal Vacancies Reform Act and the applicability of the ethics agreement Dourson signed to his current role.
Senators Sheldon Whitehouse (D-RI), Tom Carper (D-DE), Ben Cardin (D-MD), Bernie Sanders (I-VT), Jeff Merkley (D-OR), Kirsten Gillibrand (D-NY), Cory Booker (D-NJ), Edward J. Markey (D-MA), Tammy Duckworth (D-IL), and Kamala Harris (D-CA) signed the letter.
Specifically, the Senators request Dourson’s official title and a description of his appointment. They ask whether he is overseeing EPA employees, and if Administrator Scott Pruitt has delegated any of his authorities to Dourson. They ask if Dourson’s ethics agreement with the Office of Government Ethics and the EPA applies to his current role. They request information on the type of email account he is using, and if he has renewed his commitment to refrain from circumventing the Freedom of Information Act by using personal email or other unofficial mediums of communication. They ask whether he will make his schedule public. And they ask if he has stopped his consulting work for chemical and agriculture corporations as he promised to do if confirmed as head of the EPA toxics office.
However, given that Dourson is at the EPA already, the Senators note he should now have an understanding of the programs he would administer if confirmed. Claiming to be unfamiliar with them, Dourson dodged questions about many of those programs during his confirmation hearing and in written responses to Senators. Of particular concern, Dourson avoided addressing implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the bipartisan overhaul of the EPA’s protections against toxic chemicals. The Senators include examples of Dourson’s evasive responses with their letter.
“You declined to answer several questions for the record from members of the Environment and Public Works Committee due to lack of familiarity with various issues or EPA’s perspective on them as a nominee,” the Senators write. “We are particularly concerned about your incomplete answers to questions about the regulation of pollutants and chemicals, as well as implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a broadly bipartisan bill that will be within your purview if confirmed. . . . Now that you are ‘adviser to the administrator,’ we expect that you have familiarized yourself with these issues and can be more forthright in answering the questions we previously asked.”
Full text of the Senators’ letter is below. A PDF copy is available here.
October 24, 2017
Michael Dourson, Ph.D.
Adviser to the Administrator
Environmental Protection Agency
1200 Pennsylvania Avenue NW, 1101A
Washington, D.C. 20460
Dear Dr. Dourson:
It has come to our attention that you have recently been appointed to the position of “adviser to the administrator” at the Environmental Protection Agency (EPA) while your nomination to serve as EPA’s Assistant Administrator of the Office of Chemical Safety and Pollution Prevention (OCSPP AA) is under consideration by the Senate. This appointment raises several concerns that we request you address before a Floor vote on your nomination, assuming the Environment and Public Works Committee agrees to advance it.
Your Appointment as Adviser to the Administrator
The Federal Vacancies Reform Act of 1998 provides, with limited exceptions, the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency … for which appointment is required to be made by the President, by and with the advice and consent of the Senate….” 5 U.S.C. § 3347. Further, as the Supreme Court held in Buckley v. Valeo, “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed” in Article II, Section 2, clause 2 of the Constitution. 424 U.S. 1, 126 (1976). Accordingly, it would be unlawful for you to assume any of the delegated authorities of the OCSPP AA before the Senate confirms your nomination while serving as “adviser to the administrator.”
Your appointment creates the appearance, and perhaps the effect, of circumventing the Senate’s constitutional advice and consent responsibility for the position to which you have been nominated. Your improper involvement in EPA decisions could provide grounds for subjects of EPA regulations and oversight to challenge the legal validity of those decisions in court. To ensure your appointment is not violating the Federal Vacancies Reform Act of 1998, please respond to the following:
- What is your official job title and type of appointment (e.g., non-career SES, Schedule C, administratively-determined)? Who, if anyone, are you supervising? What is your relationship with the Acting OCSPP AA? If you have a written job description, please provide a copy.
- Has the Administrator formally delegated any duties of the OCSPP AA to you? Which, if any, OCSPP AA duties have you or are you presently performing?
- During your confirmation process, you entered into an ethics agreement that was approved by both EPA and the Office of Government Ethics and presented to the Senate Environment and Public Works Committee. Are you governed by the same ethics agreement in your current position? Please provide a copy of the signed Trump ethics pledge, and copies of any waivers to the pledge or recusal statements.
- You committed to notifying the Committee of all of your EPA email addresses “within seven days of using a new email address, including any aliases or pseudonyms.” Please provide all email addresses you have used since starting at EPA and any new ones within seven days of their use.
- You also committed to “conducting all business using official email addresses or other means and to refrain from any mediums that are outside the Freedom of Information Act’s reach.” Do you commit to do the same pre-confirmation?
- During previous administrations, senior EPA managers’ schedules have been available to the public on a daily basis. You also committed to “mak[ing your] calendar available on a timely basis” when asked if you would make your calendars available daily. Given your extensive work with industries regulated by EPA in the past, how do you define “timely,” and if you are unwilling to commit to making your schedule available on a daily basis, why? Will you make your schedule available while in your current position? If so, how frequently?
- In your ethics letter to Kevin Minoli, EPA’s designated agency ethics official, you stated upon confirmation you would resign form your positions with the University of Cincinnati, Toxicology Education Foundation, and Dourson, Dourson, and Fowler. Have you resigned from these positions upon accepting your current appointment as adviser to the administrator? If so, please provide copies of the written notification you committed to send Mr. Minoli upon terminating these positions. Have you, as promised in your ethics letter, refrained from “participat[ing] personally or substantially in any particular matter” involving these entities, or those with which you have a personal, financial, or professional interest, including North American Flame Retardant Alliance, Martha C. Dourson, LLC, and CreateSpace Independent Publishing Platform? Please also provide a list of all particular matters from which you have either been recused or for which you have requested waivers in order to continue your participation in.
Frank R. Lautenberg Chemical Safety for the 21st Century Act and Pollutants
You declined to answer several questions for the record from members of the Environment and Public Works Committee due to lack of familiarity with various issues or EPA’s perspective on them as a nominee. We are particularly concerned about your incomplete answers to questions about the regulation of pollutants and chemicals, as well as implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a broadly bipartisan bill that will be within your purview if confirmed. It has been widely reported that Nancy Beck, previously of the American Chemistry Council, has been working behind the scenes to undermine the protections Congress intended in this law. Your prior association with the tobacco industry and your extensive work for the American Chemistry Council and other chemical manufacturers led The New York Times to deem you a “scientist for hire” and accordingly raises similar concerns.
Now that you are “adviser to the administrator,” we expect that you have familiarized yourself with these issues and can be more forthright in answering the questions we previously asked. For example:
- Of seven questions asked by Senator Carper related to specific chemicals and how EPA should protect people from exposures to chemicals when setting chemical safety standards, you provided only five partial responses. You did not provide all requested information in response to two questions submitted by Senator Carper that were related to funding sources and sponsors of work on specific chemicals that was performed by TERA. You also refused to answer any of Senator Carper’s eight questions related to implementation of the Toxic Substances Control Act.
- In response to three questions asked by Senator Whitehouse about EPA’s role regulating mercury and mercury compounds under TSCA, you responded that you were unaware of the status of the agency’s work. You declined to respond to Senator Whitehouse’s question if you agreed with EPA’s endangerment finding and instead indicated you are “not familiar with the details of EPA’s endangerment finding and would need to do more research on the topic.” You also declined to answer a question from Senator Whitehouse regarding how EPA should consider the synergistic effects of chemicals when considering their approval under FIFRA.
- During repeated questioning by Senator Harris regarding your ethical and moral responsibility to recuse yourself from working on potential conflicts of interest, such as regulations pertaining to the chemical compound perchlorate, you repeatedly indicated that you would defer to the guidance of the EPA Ethics Office. In your responses, you declined to acknowledge that you possess the ability to proactively recuse yourself from such conflicts.
- In response to three questions asked by Senator Cardin about EPA’s role regulating trichloroethylene, methylene chloride, and N-Methylpyrrolidone under TSCA, you responded that you were unaware of the status of the agency’s work.
We request you provide more complete answers to the attached questions for the record on toxics and pollutants, informed by your current position at EPA. We look forward to your prompt responses as it will help inform how we engage with your nomination.
 See, e.g., National Labor Relations Board v. SW General, 137 S. Ct. 929 (2017) (vacating an NLRB unfair labor practices complaint because the NLRB general counsel at the time had been appointed in violation of the Federal Vacancies Reform Act).
 Annie Snider and Alex Guillen, EPA staffers, Trump Official Clashed over New Chemical Rules, Politico, June 22, 2017, available online at: http://www.politico.com/story/2017/06/22/trump-epa-energy-chemicals-clash-239875.
 Mr. Trump Outdoes Himself in Picking a Conflicted Regulator, The New York Times, Oct. 18, 2017, available online at: https://www.nytimes.com/2017/10/17/opinion/mr-trump-outdoes-himself-in-picking-a-conflicted-regulator.html.