Senate Democrats say the Environmental Protection Agency (EPA) might be breaking the law by having employees help with Andrew Wheeler’s confirmation process to serve as the agency's administrator during the partial government shutdown.

Under federal law and the EPA’s own contingency plan, just over 800 employees are allowed to work at the agency after its appropriations have lapsed.

But Sen. Tom Carper Thomas (Tom) Richard CarperDemocrat asks for probe of EPA's use of politically appointed lawyers Overnight Energy: Study links coronavirus mortality to air pollution exposure | Low-income, minority households pay more for utilities: report OVERNIGHT ENERGY: Democrats push resolution to battle climate change, sluggish economy and racial injustice | Senators reach compromise on greenhouse gas amendment stalling energy bill | Trump courts Florida voters with offshore drilling moratorium MORE (Del.), the top Democrat on the Environment and Public Works Committee, said in a letter to the EPA that it’s not clear that the staff who are helping Wheeler prepare for his confirmation hearing before that panel next week are among those allowed to work.

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“We are concerned that preparations for your confirmation hearing may be occurring using resources that are not described in or authorized under EPA’s Contingency Plan,” Carper wrote, along with Sens. Ben Cardin Benjamin (Ben) Louis CardinPPP application window closes after coronavirus talks deadlock Congress eyes tighter restrictions on next round of small business help Senate passes extension of application deadline for PPP small-business loans MORE (Md.), Sheldon Whitehouse Sheldon WhitehouseLWCF modernization: Restoring the promise Restaurant owner defends calamari as 'bipartisan' after Democratic convention appearance Warren calls on McConnell to bring Senate back to address Postal Service MORE (R.I.) and Chris Van Hollen Christopher (Chris) Van HollenMid-Atlantic states sue EPA over Chesapeake Bay pollution Trump payroll-tax deferral for federal workers sparks backlash Senators urge administration to make payroll tax deferral optional for federal workers MORE (Md.), other Democrats on the committee.

“It is difficult to understand how preparing you for next week’s confirmation hearing credibly falls within any of the categories listed in EPA’s Contingency Plan, particularly the category of employee that is ‘necessary to protect life and property.’ Using EPA resources in this manner may also run afoul of the Antideficiency Act,” they said.

President Trump Donald John TrumpHR McMaster says president's policy to withdraw troops from Afghanistan is 'unwise' Cast of 'Parks and Rec' reunite for virtual town hall to address Wisconsin voters Biden says Trump should step down over coronavirus response MORE this week formally nominated Wheeler, the EPA’s acting administrator since July, to officially take that post, a nomination that requires Senate confirmation.

Sen. John Barrasso John Anthony BarrassoOVERNIGHT ENERGY: Democrats push resolution to battle climate change, sluggish economy and racial injustice | Senators reach compromise on greenhouse gas amendment stalling energy bill | Trump courts Florida voters with offshore drilling moratorium Senators reach compromise on greenhouse gas amendment stalling bipartisan energy bill The Hill's Morning Report - Sponsored by National Industries for the Blind - Trump, Biden battle over vaccine, economy; Congress returns MORE (R-Wyo.), the environment panel’s chairman, quickly scheduled a hearing for next Wednesday on Wheeler’s confirmation.

The EPA says it is certain that the staff assisting Wheeler are allowed to be working.

“EPA has excepted a limited number of employees to prepare the Acting Administrator for the hearing on January 16th,” EPA General Counsel Matt Leopold said in a statement.

“Participation in and preparation for a confirmation hearing that has been scheduled by Congress is clearly excepted under Department of Justice, Office of Legal Counsel, opinions," he said. “Additionally, the Constitutional appointment power allows for EPA to take the steps necessary to ensure the Acting Administrator is prepared for his hearing.”

Despite some EPA employees working during the shutdown, they along with others across the government whose agencies are not funded, will not be paid until the shutdown ends.