4
A Path Forward for EPA’s Title 42 Authority

The Environmental Protection Agency (EPA) has benefited greatly from the Title 42 authority that it has been granted over the past 18 years (see Chapters 2 and 3). Title 42 hires by EPA’s Office of Research and Development (ORD) have tackled some of the most serious problems that have faced the agency for decades, such as how to predict toxicity of tens of thousands of chemicals without subjecting each one to lengthy, expensive, and controversial experimentation (NASEM, 2023). Current ORD programs that are oriented specifically toward promoting innovation in research and science at EPA include development of test methods; identification of risks; pollution control technologies; and approaches, tools, and data for use by stakeholders (NASEM, 2023; for examples of projects and outputs, see Figure 3-4 in Chapter 3 and Appendix E).

PROGRAM EVOLUTION AND EXPANSION

Evolution

Moving forward, EPA faces even more challenges in meeting its mandate of protecting people and the environment from risks due to increasing exposures to climate change–related, chemical, and nonchemical stressors (NASEM, 2023). The One Environment–One Health systems approach recognizes that the current understanding of the consequences of complex interactions of multiple physical, chemical, and biological stressors must evolve for strategic and effective regulatory programs to be implemented. Increasingly, climate change is causing traditional approaches to chemical regulation and environmental cleanup to be inadequate for regulatory programs to predict impacts on the environment and to integrate climate change into regulatory rulemaking (Fairbrother et al., 2019). The rapid pace of environmental and marketplace changes, particularly in fields where artificial intelligence and computational advances accelerate knowledge acquisition, requires a highly educated and agile workforce on the cutting edge of scientific, engineering, and technological advances (CSST, 2021; UCS, 2023). Incorporating new methods and paradigms into regulatory approaches is important to avoid potential constraints when facing legal challenges from interest groups and industry (NASEM, 2023). The National Academies of Sciences, Engineering, and Medicine and EPA’s Board of Scientific Counselors (BOSC)¹ strongly recommend enhancing collaboration of EPA scientists and regulators with members of

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¹ See https://www.epa.gov/bosc (accessed November 22, 2023).

academia, industry, and stakeholders, as well as other government agencies (BOSC, 2022; NASEM, 2023). Previous strategic Title 42 hires have allowed EPA to quickly meet emerging problems with science-based regulatory approaches and have significantly potentiated scientific collaborations. An enlarged hiring authority could be the catalyst required to continue implementing the National Academies (2023) recommendations for integrative, cutting-edge research.

Expansion

EPA would benefit from expanded and permanent Title 42 authority to continue to attract and retain top-level researchers in applied scientific and engineering fields. A larger permanent program would allow the agency to be competitive in its hiring and strategically focus its Title 42 positions in a manner that implements multiyear strategic research plans (StRAPS), following the National Academies’ recommendations (NASEM, 2023). Some positions could be reserved as Title 42 appointments for rapid response to emerging environmental problems, such as the lead crises in Flint, Michigan, or the recent recognition of problems related to “forever” chemicals, such as PFAS.

While ORD is the primary generator of science-based information for agency regulatory actions and will continue to be the chief user of Title 42 authority, the regulatory offices would also benefit from the ability to attract top talent for implementing science-based regulatory approaches. Congress has recognized this by authorizing Title 42 hires by the Office of Chemical Safety and Pollution Prevention for expertise to respond to rapid technological innovations in biotechnology, bioengineering of industrial chemicals, new pesticide products, and other marketplace changes. Other EPA offices, including the Office of Water, Office of Air and Radiation, and Office of Land and Emergency Management, would benefit similarly from the ability to use additional Title 42 positions in support of science-based regulations (e.g., safe drinking water, toxic air pollutants, emergency response). This is especially important given the unique complexities each office will face with emerging issues of human health and environmental degradation. To expand on the National Academies’ 2023 recommendations (NASEM, 2023), each office can conduct an evaluation of scientific needs, including a greater diversity of disciplines to address emergent ecological, social, and public health issues, among others. These considerations could be part of the basis of a Title 42 hiring strategy for the next 3–5 years, with an agency-wide plan coordinated and calibrated by EPA’s Science and Technology Policy Council.¹

EPA’s primary mission of protecting human health and the environment—by protecting surface and drinking water, reducing pollutants in the air, promoting

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¹ The Science and Technology Council is composed of senior executives from across the agency for the purpose of identifying critical science and technology issues and developing and implementing policies to help advance EPA’s mission priorities (see https://www.epa.gov/osa/charter-science-and-technology-policy-council-stpc [accessed February 8, 2024]).

safe use of chemicals, cleaning up contaminated sites, and promoting environmental sustainability—requires continued advancement and sustained collaboration among many disciplines in basic earth and atmospheric sciences, computational sciences, technology, and engineering. Key to accomplishing EPA’s mission are the disciplines of environmental chemistry, epidemiology, toxicology, ecotoxicology, terrestrial and aquatic ecology, hydrology, limnology and oceanography, and environmental microbiology. The widespread recognition of the interrelationship of environment and human health dictates a strategic interdisciplinary approach to protect both systems more efficiently and effectively (NASEM, 2023). For example, exceeding the threshold (ambient water quality criteria) for a single chemical in a stream does little to address whether the health of a stream and its biota are adversely affected. The habitat, flow, temperature, food, and trophic structure must also be considered. EPA ORD has clearly described the human–environment interactions and complex interdisciplinary issues in the five StRAPs for fiscal years (FYs) 2023–2026.

The 2023 report of the National Academies Futures Committee (NASEM, 2023) highlights the need for systems thinking as the primary scientific approach to environmental issues. This recommendation and others were similarly identified by ORD’s BOSC (2022). EPA can increase its inter- and multidisciplinary research to effectively address current and future human health and environmental protection. It will be challenging to predict how all the disciplines mentioned above will advance in the future and, therefore, what future hires will be needed. The committee determined that the Title 42 program is the optimal approach for maintaining key expertise for addressing the complex and critically important issues of a rapidly evolving world. This program will provide opportunities to build a foundation within the agency and ORD with leadership for centers of excellence in inter- and multidisciplinary approaches to enhance cross-collaborative and multidisciplinary work.

BEST PRACTICES OF TITLE 42 PROGRAMS

The Title 42 program under the U.S. Department of Health and Human Services (HHS), as a whole, follows the procedures and policies outlined in a central operations manual; however, each agency is diverse in the size, scientific focus, mission, and impact of its Title 42 program. Amongst the HHS agencies, the National Institutes of Health (NIH) has the largest and most robust Title 42 program, with 3,940 scientists on Title 42 appointments holding a variety of basic scientific research and clinical studies positions.² Similarly to EPA, NIH distinguishes between the use of 42 U.S.C. § 209(f) and (g), with “(f)” positions referring to consultants and “(g)” positions referring to fellows. Furthermore, NIH uses Title 42(f) for mid- to senior-level leadership scientific positions on tenured (i.e., indefinite)

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² Email to National Academies staff by W. Winter, chief, Title 42 Employment and Compensation Unit of the National Institutes of Health, August 29, 2023.

appointments. The (g) employees are engaged in biomedical health–related research, studies, and investigations and clinical studies for a limited period of time. The branch of NIH that serves as the best comparison with EPA ORD’s mission to provide the scientific foundation for safeguarding human health and ecosystem integrity is the National Institute of Environmental Health Sciences (NIEHS). NIEHS conducts research to understand how the environment affects people in order to promote healthier lives. The two organizations are similar in size, with NIEHS employing 1,800 people, including 106 Title 42(g) and 43 Title 42(f) employees.³ EPA’s ORD employs roughly 1,550 people. See Table 4-1 for a comparison of ORD’s and NIEHS’s Title 42 programs.

TABLE 4-1 Comparison of Title 42 Programs at EPA’s ORD and NIH’s NIEHS

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³ Email to National Academies staff by S. Fox, deputy chief of administrative services at the National Institute of Environmental Health Sciences, September 15, 2023.

NOTE: EPA = Environmental Protection Agency; NIEHS = National Institute of Environmental Health Sciences; NIH = National Institutes of Health; ORD = Office of Research and Development.

The committee noted several key areas as best practices for possible adoption by ORD. Such areas include salary maximums, the number of allocated positions, renewal procedures, and the term length of the authority.

Salary compensation

First, the salary maximum of $250,000 established by EPA for Title 42 positions is based on the need to offer competitive salaries to recruit scientists from academia and industry in scientific fields that are core to the mission of EPA (EPA, 2023e). This salary cap was set when EPA first received Title 42 hiring authority in 2006 and at the time was equivalent to the salary cap at NIH. Within the past few years, NIH, the Food and Drug Administration, and the Centers for Disease Control and Prevention have increased their Title 42 salary caps to $350,000, while EPA’s has remained static. Furthermore, NIH places an importance on setting Title 42 initial starting salaries equitably, and future increases are well defined and restricted throughout the NIH manuals. The needed core expertise in various fundamental and applied sciences and engineering is similar among EPA and these other agencies. Additionally, as recommended in NASEM (2023), the future challenges to EPA’s mission of protecting human health and the environment will necessitate expanding the scope of expertise beyond traditional sciences and engineering, and will require building teams with multidisciplinary expertise beyond that available in the current positions.

Some Title 42 positions expect the candidate to hold a terminal academic degree, such as a Ph.D. As per Edwards et al. (2021), advanced education generally correlates positively with increased private-sector compensation, compared with the federal sector, spanning both STEM (science, technology, engineering, and mathematics) and non-STEM fields. This advantage is most notable among those with advanced degrees, with private-sector workers earning 114.4 percent of the salaries of their federal counterparts (Edwards et al., 2021). In 2017, the Congressional Budget Office (CBO) found that federal workers holding advanced professional degrees or doctorates earned, on average, 24 percent less than their counterparts in the private sector (CBO, 2017). Federal workers holding a master’s degree earned 7 percent less than a similar employee in the private sector, on average. Additionally, CBO (2017) found that within broad occupational categories, engineers and computer/mathematical scientists receive higher pay than physical and life scientists, although variations exist. New Title 42 hires may be

needed from engineering disciplines, computer science, and information technology fields, with a significant number of these positions currently located within the industry. It is important to consider industry-specific salaries when setting salary caps to ensure competitive hiring.

Program expansion

While EPA’s regulatory mission is focused largely on chemical concerns, these often co-occur with physical and biological stressors that must be comanaged within the framework of environmental justice. To accomplish this mission, the agency would benefit from an expanded Title 42 hiring authority, extending to all the headquarters and regional offices, similar to the way NIH appoints Title 42 employees in various divisions within the agency. This extension would establish a consistent and adaptable strategy for talent acquisition across organizational levels, promoting agility and enabling the prompt utilization of high-caliber expertise. Consequently, such an extension would enhance EPA’s ability to effectively address varied and evolving environmental challenges. Furthermore, the advantages of HHS’s 42 U.S.C. § 209(f) and (g) hiring authorities include flexible and competitive compensation outside the General Schedule and more rapid time-to-hire once a hire is authorized.

Postdoctoral opportunities

NIEHS regularly uses its authority to hire postdoctoral scholars as research fellows; these hires are new to NIH and can be either U.S. or non-U.S. citizens. In FY 1998, ORD began to offer postdoctoral opportunities for early-career candidates—U.S. citizens only—through the Post-Doctoral Research Program,⁴ with opportunities in four of the office’s research centers: the Center for Computational Toxicology and Exposure (CCTE), the Center for Environmental Measurement and Modeling (CEMM), the Center for Environmental Solutions and Emergency Response (CESER), and the Center for Public Health and Environmental Assessment (CPHEA). However, this program does not include Title 42 positions, and no options for U.S. or non-U.S. postdoctoral scholars are available at EPA. Leveraging Title 42 hiring authority for postdoctoral positions would allow ORD to hire a candidate in a high-priority field at an expedited rate, open the opportunity to both U.S. and non-U.S. candidates, and expand postdoctoral representation across their research centers (CCTE, CEMM, CESER, CPHEA) and research programs (Air, Climate, and Energy; Chemical Safety for Sustainability; Health and Environmental Risk Assessment; Homeland Security; Safe and Sustainable Water Resources; Sustainable and Healthy Communities).

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⁴ For more information on EPA’s Post-Doctoral Research Program, see https://cfpub.epa.gov/ordpd/ (accessed January 19, 2024).

Renewal procedures and term length

Another notable practice at NIEHS is that scientists are provided with significant lead time, typically a year, of nonrenewal notice, allowing the employee adequate opportunity for transitioning to a new position. The evaluation process is outlined in NIH’s Title 42 manual, taking approximately 1 month after receiving materials from both the supervisor and the scientist. Peer review is initiated approximately 6 months prior to the renewal date for the appointment. In cases where renewal is not supported, the scientific director has the authority to approve a short-term extension to support the transition. A similar strategy can be outlined directly in EPA’s Title 42 Operation Manual.

Lastly, HHS has hiring authority under Title 42 with no explicit limits to term length, another program attribute that would be beneficial to EPA (Basco et al., 2014).

CONCLUSION

EPA’s Title 42 program was created to attract highly qualified individuals for leadership roles in science and engineering, bolster ongoing research efforts, orchestrate significant research programs, and devise strategic approaches for investigating emerging challenges. Through careful review, the committee concludes that the program has successfully facilitated the appointment of highly qualified individuals, who have contributed significantly to the agency’s ability to fulfill its mission of safeguarding human health and the environment. Persons hired through this program have made substantial contributions to notable successes, including groundbreaking research on PFAS detection, categorization, and remediation; investigations into the effects of perchlorate on fetal health; examinations of human health implications related to air pollution; comprehensive efforts addressing the intricate and enduring consequences of climate change; initiatives in environmental justice and equity; and advancements in forecasting methods for harmful algal blooms. These examples represent only a fraction of the scientific advancements linked to the Title 42 program. As the committee anticipates the future, it acknowledges the imperative for environmental research to address both emerging and existing complex challenges. The Title 42 program stands as a cornerstone in fostering scientific and engineering leadership nationally, enabling the identification of problems and the development of effective solutions. Its continuity ensures that effective support will be provided in addressing the nation’s future environmental and human health challenges.

RECOMMENDATIONS

The committee offers the following recommendations to EPA, based upon the discussions and findings presented in the report. These findings and recommendations are consistent with those provided in the previous National Academies report (NRC, 2010) that reviewed EPA’s Title 42 program in its early stages

(see Appendix C). In addition, the recommendations reflect best practices identified by the committee from the Title 42 policies and procedures used by agencies within HHS.

EPA’s Title 42 Authority

Recommendation 4-1: The Environmental Protection Agency (EPA) has used its limited Title 42 authority effectively since it was first provided by Congress in 2006 and renewed every 5 years thereafter. As it has for other federal agencies, Congress should grant EPA permanent Title 42 authority.

Recommendation 4-2: The Environmental Protection Agency’s (EPA’s) authority should be expanded to allow the number of Title 42 hires to comprise more than a small percentage of the workforce of the Office of Research and Development (ORD) and the Office of Chemical Substances and Pollution Prevention (OCSPP). In addition, consideration should be given to expanding EPA’s Title 42 authority beyond OCSPP to other agency program offices and regional offices to support science-based decision-making. However, that cross-EPA expansion should not be at the expense of ORD’s Title 42 positions.

Title 42 Program Planning

Recommendation 4-3: The Environmental Protection Agency should use the process for Strategic Action Research Plans (StRAPs) to develop a 5-year strategic plan for Title 42 hiring across its Office of Research and Development (ORD). It should identify hiring categories, duration of appointments, and whether positions are renewable. Consistent with recommendations of the 2023 report by the National Academies of Sciences, Engineering, and Medicine titled Transforming EPA Science to Meet Today’s and Tomorrow’s Challenges, strategic planning for Title 42 hiring should include horizon scanning or foresight planning that is conducted every 4 years, in conjunction with updating the StRAPs. ORD national program directors and center directors should provide input on an annual basis regarding how position allocations in the Title 42 program could be modified to better support one or more of the StRAP deliverables and to reflect new directions and priorities.

Recommendation 4-4: The Environmental Protection Agency should fill the majority of Title 42 positions with scientific and technical personnel. A smaller number should be used to hire senior science leaders and managers, such as national program directors and

center directors. Some Title 42 positions should be used to hire postdoctoral and young professionals, who often have substantial expertise in cutting-edge science and method implementation. In contrast to standard General Schedule requirements, Title 42 authority enables greater flexibility in hiring non-U.S. citizens. A portion of the Title 42 positions should be reserved to hire personnel with particular expertise for addressing unforeseen needs.

EPA’s Title 42 Hiring Process

Recommendation 4-5: The Environmental Protection Agency should define the decision rules for competitive versus noncompetitive hiring. Noncompetitive hiring should be used sparingly on a strategic basis, as it may be antithetical to a fair and unbiased hiring process and may undermine equitable hiring. Most, if not all, of the positions should be competitive.

Recommendation 4-6: The Environmental Protection Agency should adopt a salary cap of $350,000, as is used in the National Institutes of Health’s Title 42 program. A higher salary cap may be needed for engineering and data science professionals, if warranted by recent market analyses.

Recommendation 4-7: As recommended in the 2010 report by the National Research Council titled The Use of Title 42 Authority at the U.S. Environmental Protection Agency: A Letter Report, the Environmental Protection Agency (EPA) should establish a search committee for available positions to facilitate broad and open recruitment, promote equity and transparency in the hiring process, evaluate applicants’ credentials, and recommend the most qualified applicants. The search committees should include members who are both outside and within EPA.

Program Review

Recommendation 4-8: Regular overall Title 42 program evaluation and performance measurement are critical for informing internal decisions and communicating externally about program efficiency, effectiveness, and equity. The Environmental Protection Agency (EPA) should arrange for a review of its Title 42 program every 5 years by a third party (e.g., EPA’s Office of Research and Development’s [ORD’s] Board of Scientific Counselors).

Review criteria could include:

• The program’s alignment with the agency’s strategic goals.

• The need for rebalancing of future hiring plans, beyond program modifications made on a more frequent basis.
• Whether program outputs are of high quality, timely, and able to be implemented suitably.
• Leadership impacts at ORD centers and laboratories, as well as agency programs.
• Title 42 research impacts on science and utility in EPA’s regulatory agenda.
• The success of the Title 42 program as an incentive for talented individuals to join the agency.

In addition to periodic program evaluations, EPA could monitor whether the Title 42 program is meeting its objectives on an ongoing basis. Considerations could include:

• Whether Title 42 hires are in the fields identified as having the highest priority by the agency.
• Demographic information on Title 42 appointees that is relevant to the pursuit of EPA’s diversity, equity, inclusion, and accessibility plans.
• Whether the program is being implemented in a manner that is generally consistent with EPA’s Title 42 Operations Manual.

Recommendation 4-9: The Environmental Protection Agency should periodically arrange for an evaluation of program success that can be used internally to inform decisions about modifying the Title 42 program, if necessary, to meet present and future needs. The evaluation also can be used to respond to questions externally about the value of the program and the need for its continuation and expansion.