<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:83699.wais]
S. Hrg. 107-1003
OFFICE OF THE OMBUDSMAN AT THE ENVIRONMENTAL PROTECTION AGENCY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 606
A BILL TO PROVIDE ADDITIONAL AUTHORITY TO THE OFFICE OF OMBUDSMAN OF
THE ENVIRONMENTAL PROTECTION AGENCY
__________
JUNE 25, 2002
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey PETE V. DOMENICI, New Mexico
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
C O N T E N T S
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Page
JUNE 25, 2002
OPENING STATEMENTS
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 2
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 17
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 1
Specter, Hon. Arlen, U.S. Senator from the Commonwealth of
Pennsylvania................................................... 23
WITNESSES
Allard, Hon. Wayne, U.S. Senator from the State of Colorado...... 4
Prepared statement........................................... 50
Brian, Danielle, executive director, Project on Government
Oversight...................................................... 37
Prepared statement........................................... 72
Martin, Robert, former EPA National Ombudsman.................... 24
Prepared statement........................................... 65
Nadler, Hon. Jerrold, U.S. Representative from the State of New
York........................................................... 6
Prepared statement........................................... 51
Shortz, Susan, president, Halt Environmental Lead Pollution
(HELP)......................................................... 41
Prepared statement........................................... 76
Tinsley, Nikki, Inspector General, U.S. Environmental Protection
Agency......................................................... 12
Brief, Mary Mosley v. Christine Todd Whitman................. 55-58
Prepared statement........................................... 53
Responses to additional questions from:
Senator Crapo............................................ 60
Senator Jeffords......................................... 58
Wood, David, Director, Natural Resources and Environment, U.S.
General Accounting Office...................................... 13
Prepared statement........................................... 60
Zanetti, Katherine, facilitator, Shoshone Natural Resources
Coalition...................................................... 39
Prepared statement........................................... 74
ADDITIONAL MATERIAL
Letters:
Canales, Suzie, Citizens for Environmental Justice, Corpus
Christi, TX................................................ 104
Evans, Robert D., American Bar Association................... 78
Huysman, Kristen, Environmental Law Society, Vermont Law
School..................................................... 104
Koke, Cindy, Denver, CO...................................... 101
Malinowski, Heather, Secretary, Pi-Pa-TAG, Inc............... 93
Matsunaga, Robin K., President, U.S. Ombudsman Association... 95
Oja, Carrie, chairman, Community Leaders for EPA
Accountability Now........................................108-111
Memorandums:
Community Leaders for EPA Accountability Now (CLEAN), Coeur
d'Alene, ID................................................ 108
Devine, Tom, Government Accountability Project............... 106
Reports:
A Partial Approach to Clean-up: EPA Mishandles Superfund
Investigations, June 25, 2002.............................111-121
American Bar Association, Section of Administrative Law and
Regulatory Practice, Section of Dispute Resolution, Section
of Business Law, Section of State and Local Government Law,
Government and Public Sector Lawyers Division, Senior
Lawyers Division, Commission on the Legal Problems of the
Elderly, National Conference of Administrative Law Judges,
Standing Committee on Environmental Law.................... 82-92
Statements:
Hardy, Rogers and Antonia M., Harrison, ID................... 97
Hodge, Lucinda, director, Alberton Community Coalition for
Environmental Health, Missoula, MT......................... 100
Miller, Barbara, Siler Valley People's Action Coalition,
Kellog, ID................................................. 98
Scholl, Ron, Missoula, MT.................................... 99
Smedley, William A., executive director, GreenWatch, Inc.;
board member, Pennsylvania Environment Network; chairman
Legal Committee, AIR....................................... 102
Text of Bill, S. 606, A bill to provide additional authority to
the Office of Ombudsman of the Environmental Protection Agency122-129
OFFICE OF THE OMBUDSMAN AT THE ENVIRONMENTAL PROTECTION AGENCY
----------
TUESDAY, JUNE 25, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:38 a.m. in room
406, Senate Dirksen Building, Hon. James Jeffords (chairman of
the committee) presiding.
Present: Senators Jeffords, Carper, Clinton, Crapo and
Specter.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. The hearing will come to order.
The purpose of today's hearing is to examine the
functioning of the EPA's Office of the Ombudsman. While this
may be a little-known office within the EPA, historically it
has played an important role looking into the Agency's handling
of hazardous waste sites under the Superfund program. It is
clear to me that the Agency needs an independent and credible
and impartial ombudsman that will respond to the needs of
communities coping with complicated and somewhat life-
threatening environmental problems.
I, for one, do not want another GAO study in 9 months that
again finds that the ombudsman does not have sufficient
independence. Last April, the EPA transferred the ombudsman to
the Office of Inspector General. In reviewing the testimony of
today's witnesses, it is clear that this action has generated
considerable concern. I hope that the Inspector General will
detail the operating plans for the ombudsman office and will
let the committee know when the office will be publicly posted
and fully staffed.
Most of you know the authorizing statute governing the
activities of the ombudsman expired some time ago. Senator
Crapo has introduced a bill that Senators Specter and Allard
and others have, that would require the ombudsman to report
directly to the Administrator of the EPA. I hope all the
witnesses will give us their comments on this piece of
legislation.
As a reminder, I would request that the witnesses keep
their oral remarks to 5 minutes so that we can have time for
questions and answers from each panel. Each of the witness'
written testimony will be placed in the record and the record
will be left open for following questions and additional
testimony.
[The prepared statement of Senator Jeffords follows:]
Statement of Hon. James M. Jeffords, U.S. Senator from the
State of Vermont
Good morning. The purpose of today's hearing is to examine the
functioning of the EPA's Office of the Ombudsman. While this may be a
little known office within the EPA, historically it has played an
important role looking into the Agency's handling of hazardous waste
sites under the Suerfund program.
It is clear to me that the Agency needs an independent, credible,
and impartial Ombudsman that will respond to the needs of communities
coping with complicated and sometimes life-threatening environmental
problems. I for one do not want another GAO study in 9 months that
again finds that the Ombudsman does not have sufficient independence.
Last April, the EPA transferred the Ombudsman to the Office of the
Inspector General. In reviewing the testimony of today's witnesses, it
is clear that this action has generated considerable concern. I hope
that the Inspector General will detail the operating plans for the
Ombudsman's office and will let the Committee know when the office will
be publicly posted and fully staffed.
As most of you know, the authorizing statute governing the
activities of the Ombudsman expired some time ago. Senator Crapo has
introduced a bill with Senators Specter and Allard and others that
would require the Ombudsman to report directly to the Administrator of
the EPA. I hope all of the witnesses will give us their comments on
this piece of legislation.
As a reminder, I would request that the witnesses keep their oral
remarks to 5 minutes so that we have time for questions and answers
after each panel. Each of the witness' written testimony will be placed
in the record, and the record will be left open for followup questions
and additional testimony.
Senator Jeffords. Senator Clinton.
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Clinton. Thank you very much, Mr. Chairman. I
especially thank you for holding today's hearing on this very
important topic. I am grateful that we are going to focus on it
because it has been a subject of great concern to me and to my
colleague, Congressman Nadler, who I am delighted is here to
testify on behalf of the tens of thousands of residents of
Lower Manhattan. Congressman Nadler has been a staunch and
unrelenting advocate on behalf of our constituents at and
around Ground Zero who experienced the unthinkable on September
11 and who to this day continue to be faced with issues and
concerns regarding the quality of the air they breathe and the
health and safety of the environment that they and their
families live in.
In the case of the World Trade Center, like so many other
sites around the country, people are faced with very
complicated environmental questions. They are trying to
understand technical and scientific issues that really only
experts can explain to us and get to the bottom of. What we all
want is simply to understand what is going on; to learn what we
need to do to protect our health and to protect our
environment.
It should not be complicated, and I do not think it should
be that difficult. It should be the Federal Government's job
not only to carry out the laws, but also to help the public
understand what is going on, and to provide us with the
information we need to make the right decisions about the
health and safety of our children and ourselves. It seems more
often than not that communities are left confused, even empty-
handed, without the information and without the actions that
they need and deserve from their government.
Senator Lieberman and I, with the great support of Chairman
Jeffords, went to New York to hold a hearing on air quality at
Ground Zero back in February, to try to clear the air, so to
speak--to get some real information that we then could act on
and legislate about. Again, Congressman Nadler, who has been a
leader on these issues, was there to lend his expertise and
support.
Now, I know that we have a number of people from New York
City who have traveled here today. I wish we could hear from
every single one of you on this important issue, but the record
will receive written testimony and it will remain open until
July 7. I know that a number of you visited some of my
colleagues' offices and I really applaud you for doing that--to
get the word out. We just recently had a public opinion survey
in Manhattan, Mr. Chairman, where a majority of residents were
more concerned about the air quality issues than they were
about another terrorist attack.
People just know there is--and it may not be that there are
answers we are not being told, although we think that there
were answers we were not told in a timely way, but that we have
to do further research to get to the bottom of some of these
issues. We need to have an independent voice like an ombudsman
to be able to give us that guarantee that somebody is asking
the hard questions inside the Agency.
I just want to end with reading one of the many e-mails
that I have received from my constituents in Lower Manhattan
with regards to this question about the EPA ombudsman. This
woman lives in a building right next to the World Trade Center.
Here is what she wrote, ``Dear Senator, I have been diagnosed
with new asthma and spent several months gasping for air. I
have been unable to return to my home because it is still full
of World Trade Center dust, although it has been cleaned by
conventional methods many times. Dozens of my neighbors are
also ill. The EPA ombudsman hearing here were the first time
the truth was told about what has happened to us. Please do
everything in your power to reinstate Robert Martin.''
Another woman who lives just five blocks away says, ``I
speak for many who are very worried about downtown's condition.
The ombudsman was our hope that something would be done to
correct all of our problems. We are so worried down here. As
taxpaying citizens, we feel abandoned and need more advocates.
It is a nightmare and we are overwhelmed with the amount of
work us regular people have to do to try and overcome what we
know is a bad situation. Please help.''
These people need an advocate who is an expert, who is
inside the Agency, who does have access to information that is
often sometimes difficult even for those of us in the Senate to
obtain in a timely manner. So I hope that we are going to
resolve some of the disputes that have occurred around this
important position. We are conducting this hearing to determine
a way to ensure that the role of an independent ombudsman is
maintained at EPA. That to me is the most important issue--not
someone who has to toe the party line, not someone who has to
repeat publicly what he or she is told to repeat, but someone
who can be a thorn in the side and can take a contrary
position. This is not new to this Administration. This has
happened in other Administrations where the ombudsman had some
things to say that were not always welcome to hear. We have to
have that kind of public airing, especially when it comes to
our air in Lower Manhattan in the wake of the terrible disaster
of September 11.
So I am also pleased that our colleague, Senator Allard, is
here as well, and I look forward to the testimony.
Senator Jeffords. Thank you very much.
I welcome both Senator Allard and Representative Nadler.
This is an incredibly important hearing and I deeply appreciate
your interest and your willingness to be here.
Senator Allard.
STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE STATE OF
COLORADO
Senator Allard. Thank you, Mr. Chairman and Senator
Clinton. I am pleased to be able to testify before you today,
and I want to thank you for holding this hearing and giving me
an opportunity to testify on Senate bill 606.
As you know, this legislation reauthorizes the Office of
the Ombudsman of the Environmental Protection Agency. I speak
to you from personal experience, having worked with a
neighborhood in Denver who came to our office. We worked with
them to try and get the bureaucracy within the Environmental
Protection Agency to respond to the concerns of the citizens in
that neighborhood. Frankly, as an office, we were not able to
get through the echelon that had established itself in the
regional office of the Environmental Protection Agency, so we
had to turn to the Ombudsman. The Ombudsman was the one who
helped us break down those barriers because their purpose was
to serve as an independent voice for citizens impacted by
decisions happening within the Environmental Protection Agency.
I am going to keep my remarks brief, but I do want to share
with the committee my reasoning on and interest in this issue.
I introduced similar legislation in the 105th Congress because
of the ongoing battle between the citizens of a Denver
neighborhood and the EPA concerning the Shattuck Superfund
site. The Ombudsman's office was instrumental in bringing the
truth of what was happening in this case to light. The
legislation was introduced by Senator Crapo at the beginning of
the current Congress because the issue of authorization and
independence in the office of the EPA Ombudsman is still an
important one.
I would like to share with you quickly the stories
surrounding the Shattuck site in the Overland Park neighborhood
in southwest Denver and what the EPA did there. These events
have had a lasting impact not only on the residents of the
Overland Park neighborhood, but on each of us who look to the
EPA to be the guardian of our Nation's environmental health and
safety. In 1997, after several years of EPA stonewalling, the
residents of Overland Park in Denver brought their concerns
about a Superfund site in their neighborhood and their
frustrations with EPA to my attention. I learned that the
neighborhood had run into a wall of bureaucracy that was
unresponsive to the very public it is charged with protecting.
As a result of learning this information, I requested the
Ombudsman's intervention. In early 1999, the Ombudsman's office
began an investigation and quickly determined that the claims
made by the residents were not only meritorious, but that EPA
officials had engaged in an effort to keep documents hidden
from the public, thereby placing their health in further
danger.
Without the Ombudsman's investigation on Shattuck, the
residents of Overland Park would never have learned the truth.
The Ombudsman's investigation brought integrity back into the
process. Without the Ombudsman's work, a trusted Federal agency
would have been able to successfully hide the truth from the
very people it is charged to protect. The Shattuck issue is a
decade-long example of why citizens' trust in their government
has waned.
This bill will preserve an important mechanism within the
EPA that the public can trust to protect their health and
safety. The Shattuck story was a frustrating and often
disheartening experience for all involved. It is an example of
what can happen when a government entity goes unchecked. For
the residents of Denver, the Office of Ombudsman offered the
opportunity to get to the truth and made the health and safety
of the public the top priority. Let me make it clear that the
main priority of my continued support of this bill is to keep
the Office of the EPA Ombudsman open for business and capable
of conducting that business.
In the future, others may find themselves in a situation
similar to the one that residents of Denver experienced. I want
to know that we will have every assurance that the public
safety will be protected, that its voice will be heard, that
its questions will be answered and its concerns addressed. This
office should not have its investigative ability restricted and
its independence should not be compromised. The EPA's actions
and decisions in future cases like Shattuck should not go
unchecked and citizens in other States should have a public
avenue to address concerns and get answers from the
Environmental Protection Agency.
I know that I am not alone in my concerns, and
unfortunately that the Shattuck site is not unique. Many of my
fellow Senators and Representatives have experienced similar
concerns with sites in their States. That is why this
legislation remains so very important. I appreciate the efforts
that have been made by the current Administration in an attempt
to solve some of the problems that the Office of the Ombudsman
experienced. I know that Administrator Whitman shares my desire
to see this issue to a conclusion that will be beneficial to
all, and I appreciate her willingness to work with my office.
Again, Mr. Chairman, thank you for holding this hearing and
your willingness to look further into the matter.
Senator Jeffords. Thank you for your excellent statement.
You are right, and we appreciate the work you have put into it.
Representative Nadler.
Senator Allard. Mr. Chairman, I am sorry, but I have to
move on.
Senator Jeffords. Oh, you are going to leave us.
Senator Allard. Very good, thank you.
Senator Jeffords. Thank you, Wayne--very helpful.
Now, Mr. Nadler.
STATEMENT OF HON. JERROLD NADLER, U.S. REPRESENTATIVE FROM THE
STATE OF NEW YORK
Mr. Nadler. Thank you, Mr. Chairman. I would like to thank
you and the rest of the committee for holding this hearing
today and for inviting me to testify regarding the EPA
Hazardous Waste Ombudsman, in particular the role of the
Ombudsman in investigating the response of the EPA to the
September 11 terrorist attack in New York.
My colleague from New York, Senator Clinton, has been an
outspoken advocate, and knows all too well the problems
citizens in New York have been encountering over the last 9
months. Thank you, Senator Clinton, for arranging the field
hearing in New York back in February, and thank you, Chairman
Jeffords, for the committee's continued oversight of the EPA by
examining this issue today.
Those of us who have had to deal with the EPA have had an
interesting experience. We experienced on the one hand an
agency that seems to ignore the community's concerns, and on
the other, an Ombudsman willing to listen and investigate
complaints about agency neglect. Ultimately in the vast
majority of the EPA Ombudsman cases, the transparent Ombudsman
process has helped the Administrator or regional officials to
take proper action to resolve the disputes, resulting in
greater protection from radioactive and other hazardous waste
threats. Both Democrats and Republicans alike have utilized the
EPA ombudsman to help restore trust in government where it had
previously been shaken.
Immediately following September 11, I formed the Ground
Zero Elected Officials Task Force, of which Senator Clinton is
a member, to coordinate the efforts of all the government
representatives from the area. The main goal of the Task Force
is to assess the needs of the community in Lower Manhattan and
to ensure that those needs are addressed by the appropriate
government agencies. One area that clearly was not addressed
was the presence of hazardous waste in people's homes, schools
and businesses. In the days following the attack, the Task
Force heard countless complaints from citizens who suffered
from adverse health effects and lacked the necessary resources
to test and clean their apartments and buildings properly.
When EPA was presented with such information, the Agency
either maintained that everything was safe initially on the
basis of zero test data, or claimed that the city of New York
was in charge of indoor environments and that the EPA only had
authority only outdoor environments and had no authority for
regulating indoor environments. This distinction between indoor
and outdoor environments has no basis in statute.
The Agency maintained its position even after being
presented with independent test results conducted by long-time
EPA contractors at the request of the Ground Zero Task Force
which showed elevated levels of hazardous materials inside
downtown apartments. Citizens were left to fend for themselves.
They often ended up in court proceedings against their
landlords and building owners, and expended vast resources on
the cleanup downtown that was not conducted adequately or
systematically, but rather on an ad hoc basis.
After 4 months of this untenable situation, I asked the EPA
National Hazardous Waste Ombudsman, Robert Martin and his Chief
Investigator, Hugh Kaufman to investigate. Their involvement
produced a sea-change in the relationship of my office as well
as of local residents with EPA. My position has always been
that EPA should use its existing authority to take any and all
actions necessary to find out where hazardous materials went
following the collapse of the World Trade Center and to
remediate all contaminated spaces, and that New York should not
be treated differently from other parts of the country where
the EPA has engaged in response activities including
remediating indoor spaces.
Ombudsman Martin and Mr. Kaufman were able to tell us what
the EPA should have done, could have done under law, and has
done at other hazardous waste sites around the country. Most
importantly, the ombudsman process provided a forum to
communicate with my constituents, to listen to their complaints
and concerns, issue requests for the production of documents
and interrogatories, hold public hearings, bring in experts
from around the country to help the citizens understand the
magnitude of the issues, make recommendations for corrective
action, and truly get to the bottom of what EPA did and did not
do.
The key to all of this is that is was a transparent and
public process. We held two 11-hour public hearings that were
open to the public, documented with a court reporter, the
transcripts of which are available to anyone.
I am joined today by Lieutenant Manuel Gomez and Sergeant
David Abro who responded to the World Trade Center site with
the New York Police Department and the New York Fire Department
respectively. Both of these men participated in the ombudsman
process by testifying at one of the hearings held in New York.
Lieutenant Gomez testified that he and hundreds of other police
officers worked at the World Trade Center for 24 days without a
respirator. He was issued only this paper mask, which actually
has a label on it that reads, ``warning, this mask will not
protect your lungs.'' This is the same mask worn by Mayor
Giuliani, and as you can see on the cover of this book, by
Senator Clinton, Senator Schumer, President Bush and myself
when we visited the site.
When Lieutenant Gomez brought his own respirator to wear at
the site, his superiors told him to take it off and ordered him
to wear this paper mask even though his superiors and EPA
personnel were wearing proper respirators themselves. Worse
yet, hundreds and thousands of responders wore these, which are
worse than useless, did not wear proper respirators, and there
were over 20,000 respirators sitting unused in National Guard
armories all around New York that could have been made
available immediately to emergency responders and workers at
the site. We will pay for decades in health costs for this
negligence.
This is just an example of the kind of testimony received
at the ombudsman hearings. We heard from residents, workers,
business owners, city and State elected officials,
firefighters, police officers, parents and the New York City
Board of Education. We would have liked to hear from the
government agencies, in particular EPA, but they declined the
Ombudsman's and my invitation to participate.
Except for the Ombudsman, the EPA has yet to engage in a
public and transparent process regarding the cleanup of the
World Trade Center. If anything, it has done just the opposite.
Questions have gone unanswered. Information has been obtained
only through the Freedom of Information Act, if at all, and
trying to get the Agency to act has been a lengthy, arduous and
often unsuccessful process. The ombudsman process was essential
to address citizens' complaints and focus public pressure on
the Agency to address those complaints.
In the 4 months from September 11 to January, the EPA
maintained, contrary to a wealth of evidence, that everything
was safe; directed people to the city government for relief--a
city government which offered no relief to people other than to
tell them to clean up asbestos-laden dust with a wet mop and a
web rag; and ultimately remained unresponsive to citizens. In
the 4 months from January to May, the time of the EPA ombudsman
process, the EPA finally reversed its policy, at least in part,
and agreed to initiate remediation inside people's homes.
Of course, there were many factors that contributed to this
policy shift, but I do not believe it would have happened or
happened so quickly without the ombudsman process and the
expertise and hard work of Mr. Martin, his Chief Investigator
Huge Kaufman, and the people who worked with them to use the
ombudsman process so effectively.
The EPA is finally beginning a cleanup plan now, this
month, largely because of pressure generated by the Ombudsman.
Unfortunately, there is now no real Ombudsman to keep a
watchful eye on the Agency. This is disconcerting because the
EPA plan is woefully inadequate. For example, the EPA plans to
clean apartments only on request. This ignores the threat of
cross-contamination and recontamination from uncleaned
apartments and from building HVAC systems. The EPA plan
provides for testing only for asbestos in the air. It does not
plan to assess dust on hard surfaces that are also pathways for
exposure. Nor will the Agency test for any of the other
contaminants that were present in the World Trade Center debris
other than asbestos, such as lead, mercury, dioxin, fiberglass,
benzine, chromium, bromine and fine particulate matter.
The cleanup plan is available only south of an arbitrary
boundary at Canal Street, cutting off other areas covered by
the debris cloud, including parts of Brooklyn, Chinatown and
the Lower East Side. Besides not dealing with many potentially
contaminated sites, this presents a severe environmental
justice problem. The workers will not be wearing protective
gear, which would seem to be a clear violation of OSHA
regulations. The EPA has developed this plan without public
comment and has not established a Citizens Advisory Group or
help public meetings. It has not even established an
administrative record accessible to the public.
Quite frankly, the EPA has provided no evidence that the
cleanup plan for World Trade Center debris complies with
applicable laws and regulations, such as the National
Contingency Plan and OSHA regulations, and there is no
guarantee that EPA will act in accordance with existing laws,
policies and procedures.
The Agency must be forced into a public and transparent
process. The people of New York deserve and need an
experienced, strong and independent hazardous waste Ombudsman
at EPA now more than ever. Unfortunately, what has happened to
the Ombudsman is just the opposite. By placing the Ombudsman in
the Office of Inspector General, the position has been stripped
of its independence, transparency and effectiveness. The
necessary procedures that legally must be followed in operating
an inspector general's office are not consistent with the
procedures necessary for an independent, transparent ombudsman
function.
For example, employee protection provisions and openness of
operation must be very different in an IG's office because it
is part of a law enforcement function. Whereas, an ombudsman
must be more open to the public and at times must be a public
advocate. The EPA Ombudsman is crippled as long as it remains
under the control of the Inspector General. Without
independence to control his casework or his resources, an
Ombudsman is one in name only. With no permission to talk to
Members of Congress or to the public without permission of the
IG, an ombudsman is a toothless tiger indeed.
Recent events require that we institute or reinstitute an
independent fully funded EPA Ombudsman Office to receive,
investigate and resolve complaints. Perhaps the best way is to
make the Ombudsman an arm of Congress, but wherever an
ombudsman is placed, the office must have control of its
resources, staff and cases. The Ombudsman must be able to
communicate with the public, must be free to act free from
interference by outside parties or from within the Agency
itself.
This is nothing new to the United States or to democracies
in general. In fact, establishing independent ombudsmen is good
government. The Federal Government has decades of experience in
establishing strong and independent ombudsmen. The IRS and the
Department of Health and Human Services have ombudsmen to
address citizen complaints regarding taxes and long-term care
respectively. Victims of a terrorist attack and those living
with the threat of hazardous waste deserve at least the same
protection. An independent ombudsman is intolerable only to an
agency that does not plan to comply with the law.
Thank you, Mr. Chairman.
Senator Jeffords. Thank you for that----
[Applause]
Senator Jeffords. I understand your concern, but please, no
applause.
I just want to thank you for the effort and time you have
put into this. This is the most disturbing evidence that I have
ever received in the way of handling the Office of Ombudsman,
so I want to commend you for the work that you have done.
Mr. Nadler. Thank you, sir.
Senator Jeffords. I know that Senator Clinton, knowing her
as I do, will take very seriously what you have said. I assure
you that I will support her in any way possible to make sure we
get to how this could happen and make sure it never does happen
again.
Senator Clinton, I have to go to another serious problem,
too, on another committee, so I will turn it over to you now,
and thank you.
Senator Clinton [assuming the chair]. Thank you so much,
Chairman Jeffords, for your concern about this issue and for
taking so seriously the testimony of our colleague.
Congressman Nadler, what is your current understanding of
the status of the EPA Ombudsman's investigation into the
handling of the situation at the World Trade Center?
Mr. Nadler. As far as I know, it is at a total standstill.
I am not aware of anything that has happened since the court
decision came down that effectively allowed the EPA to strip
the Ombudsman's Office of its function and power. Since the
Ombudsman's Office went to the IG, we have had no communication
with them. They have asked us nothing, communicated nothing. As
far as I know, they have communicated with nobody in Lower
Manhattan or in Brooklyn with respect to any of this. As far as
I know, it simply stopped.
Senator Clinton. Do you agree with the GAO recommendations
about what the EPA should do to provide the Ombudsman with a
separate budget, subject to Civil Service requirements, the
authority to hire, fire and supervise staff, and be given more
structural independence?
Mr. Nadler. I certainly do. I think there is a danger,
however, in that the EPA has willfully misinterpreted and
misrepresented that report and has used it as justification--I
think a very strained justification--for putting the
Ombudsman's Office under the Inspector General. So with the
caveat that I certainly do not agree with that strained
interpretation, and that the Ombudsman must be independent, and
that strengthening his independence does not mean putting him
in an office where he cannot speak to the public or to Members
of Congress without permission from somebody else, but means
having an independent agency with independent budgetary
authority and the ability to talk to anybody without permission
from anybody else--yes.
Senator Clinton. Do the models from IRS and HHS work in
your opinion, and we should look to those?
Mr. Nadler. They work there. I think they work there very
well. Whether they are fit to transfer here, I do not really
know. I do not know about the bureaucratic structures within
those agencies and how they differ from EPA. Again the key is
that it has got to be set up in such a way that the Ombudsman
has independence in terms of budget; that he has got a set
budget for the year; that he does not have to justify every
expenditure to anybody else in the Agency; and that he can
communicate publicly and hold public hearings without anybody's
permission.
I would add one other thing that he has never had. I think
the Ombudsman ought to have subpoena power. One thing that was
made very clear was that the EPA, when the Ombudsman's Office
agreed to hold public hearings in New York on this situation at
my request, the EPA made very clear that it would not testify.
It would not send any witnesses, and in fact it advised other
government agencies not to send witnesses to the hearing. The
morning of the hearing, before the hearing convened, without
any knowledge on the EPA's part on what was going to occur at
the hearing, they released a press release saying it was a
publicity stunt, a politically motivated publicity stunt and
therefore they were not cooperating with it.
This was designed, obviously, to undermine the hearings
because they did not want all the information to come out. I
think that an ombudsman, to really be able to function in these
kinds of situations, that we to seriously consider, in fact, I
would say we ought to, give him or her subpoena power so they
could make the EPA testify. It is only when EPA officials
testify and have to answer pointed questions that you get the
best results.
Senator Clinton. I thank you so much, Congressman Nadler,
for your leadership on this issue and I hope that we will be
able to get it resolved and get an independent voice back in
the EPA. Obviously, we are most concerned about it because of
New York, but as Senator Allard and many of my colleagues have
pointed out, this is not a Republican or Democrat issue. It is
not one that is geographic. It is really rooted in the
difficulties that we have. You had in your testimony, and I
know you were hurrying along so that you fit into the time, but
before you left would you mind just reading this quote from
your testimony from Justice Douglas?
Mr. Nadler. I did skip. Thank your observations. I did skip
a considerable part of the testimony, which I will submit for
the record, to get it into the 5 minutes. Justice Douglas in
1972 identified the problem that so often plagues much of the
Federal Government. In the case of Sierra Club v. Morton, so it
was an environmental case I assume, given that fact that Sierra
Club was involved, ``The Federal agencies of which I speak are
not venal or corrupt, but they are notoriously under the
control of powerful interests who manipulate them through
advisory committees or friendly working relations, or who have
that natural affinity with the Agency which in time develops
between the regulator and the regulated.'' This quote by
Justice Douglas is as relevant today as it was 30 years ago.
Indeed, this is why the EPA Ombudsman was created by Congress
in 1984 when then-Congresswoman Barbara Mikulski faced an
unresponsive EPA. As the numerous cases that were in progress
by Ombudsman Martin when his office was destroyed, in effect,
indicate, the need for an independent EPA Ombudsman is just as
critical today as when the office was first created.
Senator Clinton. I thank you for that, and I will be sure
that a copy of your testimony is provided to Senator Mikulski.
I am sure she will be very interested in the fact that what she
helped to create in 1984 has been eviscerated in recent months.
I think that is a matter of grave concern to all of us.
Mr. Nadler. Thank you. I would also make one observation if
I may. One of the most valuable services the Ombudsman did, I
must say when this crisis occurred, a lot of us did not have
tremendous experience dealing with EPA. We did not have a lot
of hazardous waste sites in my district. As far as I know, we
did not have any. I had never dealt with them. We were pretty
much at sea in how to try to force action by EPA and how to get
them off the dime and how to get them to say, wait a minute, we
have to start dealing with indoor air as well.
One of the most valuable services provided by the Ombudsman
was simply that having been there at all the other places, he
was able to say, well you know, in Shattuck they did this; in
Libby, MT, the Administrator made a speech 4 days before
September 11 saying it would be immoral for the Federal
Government to expect residents and homeowners to pay the cost
of remediating their own homes. We could see the contrast of
what the EPA was not doing in New York. That reservoir of
experience and openness about that experience is extremely
valuable.
Senator Clinton. Thank you very much.
Mr. Nadler. Thank you.
Senator Clinton. We continue to look forward to working
with you, Congressman. It is always a pleasure.
We are going to be calling the second panel now--Ms. Nikki
Tinsley, Inspector General, U.S. Environmental Protection
Agency; and Mr. David Wood, Director, Natural Resources and
Environment, U.S. General Accounting Office.
Thank you both for being here.
Ms. Tinsley.
STATEMENT OF NIKKI TINSLEY, INSPECTOR GENERAL, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. Tinsley. Good morning, Senator Clinton. I am happy to
be here.
With me today I brought Peggy Boyer, who is our Acting
Ombudsman. I would like to start by saying I am just going to
give summary remarks and I would appreciate it if my whole
statement was put in the record.
Senator Clinton. Absolutely.
Ms. Tinsley. Congress established the ombudsman function at
EPA in 1984 to provide information and to investigate
complaints from the public related to certain hazardous and
solid waste programs. The Agency maintained that function for
16 years, long after the statutory authority expired. Last
July, GAO issued a report about EPA's national and regional
ombudsman. That report identified weaknesses in the Ombudsman's
independence, impartiality and freedom from conflict of
interest, and its accountability and reporting.
When I read the GAO report, I realized that our office had
many of the attributes that the Ombudsman's office was missing.
Congress established the Inspectors General to serve as
independent, impartial and accountable sources for audits and
investigations of the activities of Federal departments and
agencies. We are sometimes known as watchdogs for our role in
alerting the public and Congress to problems within the
executive branch. The Act gives Inspectors General numerous
authorities, including access to all agency records and
subpoena authority. The Act also grants us authority to ensure
our independence. We select, prioritize and carry out all our
work assignments independent of agency oversight. We have
separate budget authority, separate hiring and contracting
authority and independent reporting responsibilities. We have
broad authority to receive complaints and conduct
investigations.
Since the early 1980's, our office has operated a hotline
to receive complaints and allegations from the public regarding
EPA's programs and operations. We receive hotline complaints
through our toll-free number, through correspondence, through
in-person visits and over the Internet. Given that the EPA
Ombudsman's role of reviewing agency actions was similar to the
work that Offices of Inspector General were created to perform,
and because we report both to the Congress and to the Agency, I
believed that our office is well suited to assume the
investigatory functions of the Ombudsman's office when I read
the GAO report.
In April of this year, the Ombudsman's office was
transferred to the Office of Inspector General. Since the
transfer, we have expanded the services of the Ombudsman to
include all EPA-administered programs, rather than limiting it
only to Superfund and hazardous waste issues. We have been busy
during the 10 weeks since we began doing the work of the
Ombudsman. The Acting Ombudsman is assessing the transferred
caseload which is a rather challenging task due to the lack of
any organized system of records or case file index. Our primary
focus at this point is to work to resolve the already existing
cases.
We have met with individual Members of Congress and
congressional committee staff. We have made contact with
citizens groups in several of the communities where there are
open cases, and we have scheduled site visits and public
meetings for Coeur d'Alene, ID and Tarpon Springs, FL.
Senator Clinton, I want to assure the public, EPA
stakeholders and Congress that we will conduct the ombudsman
work with independence and professionalism. I welcome your
suggestions as we move forward with our new responsibilities. I
appreciate the opportunity to participate today and would be
happy to respond to your questions.
Senator Clinton. Thank you very much, Ms. Tinsley.
Mr. Wood.
STATEMENT OF DAVID WOOD, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE
Mr. Wood. Thank you, Senator Clinton.
My statement today discusses two topics--first, a brief
description of the standards for ombudsmen that have been
published by professional organizations; and second,
preliminary observations on issues raised by EPA's recent
reorganization of its ombudsman function.
While there are no Federal standards specific to the
operation of ombudsman offices, several professional
organizations provide standards of practice relevant to
ombudsmen who deal with inquiries from the public. These
standards incorporate the core principles of independence,
impartiality and confidentiality. For example, an effective
ombudsman must have both actual and apparent independence from
any person who may be the subject of a complaint or inquiry.
According to guidelines published by the American Bar
Association, key indicators of independence include a budget
funded at a level sufficient to carry out the ombudsman's
responsibilities, and the power to appoint, supervise and
remove staff.
Standards of practice published by another professional
group, the Ombudsman Association, advocate that for
independence, an ombudsman report to the highest authority in
the organization. These standards also stress the importance of
impartiality and confidentiality in the ombudsman's operations.
While Federal agencies face some legal and practical
constraints in meeting these standards, we found that ombudsmen
at the Federal agencies we reviewed for our 2001 report did
reflect aspects of the standards. For example, at the Federal
Deposit Insurance Corporation and the Food and Drug
Administration, the Ombudsman's Office had its own budget and
reported directly to the highest level of the Agency. In that
report, we found that key aspects of EPA's national hazardous
waste Ombudsman, then located within the Agency's Office of
Solid Waste and Emergency Response, were not consistent with
the standards. Our report recommended that EPA take actions
intended to increase its Ombudsman's consistency with the
standards, including modifying its organizational structure to
locate the Ombudsman outside of the Waste Office.
Partly in response to our report, EPA announced a
reorganization relocating the National Ombudsman to the Office
of Inspector General. This brings me to the second topic of my
testimony--observations on issues raised by EPA's
reorganization. Our observations are based on limited work we
had done in response to a recent request from Representative
Diana DeGette. For that reason and because EPA has not yet
developed detailed operating policies or an official
description of the position within the Inspector General's
Office, our observations should be viewed as preliminary.
While EPA's reorganization raises several issues, GAO
believes that the most fundamental is intent. If EPA intends to
have an ombudsman function that is consistent with the way the
position is typically defined in the ombudsman community,
placing the function within the OIG will not achieve the
objective. This is because the role of an ombudsman typically
includes program operating responsibilities such as helping to
informally resolve program-related issues and mediating
disagreements between the Agency and the public.
Including these responsibilities in the position within the
OIG would conflict with the Inspector General Act, which
prohibits the transfer of program operating responsibilities to
an Inspector General. Yet, omitting these responsibilities
would result in establishing a position labeled ombudsman that
is not fully consistent with the function as it is typically
defined.
Further, while EPA's reorganization removes the national
Ombudsman from the Office of Solid Waste and Emergency
Response, it may not result in a degree of structural or
functional independence that is consistent with the
professional standards. For example, according to EPA,
authority for budget and staffing for its national Ombudsman
will rest the newly created Assistant Inspector General for
congressional and Public Liaison, not the Ombudsman. Also,
according to EPA the Inspector General has the overall
responsibility for the work performed by the office, and no
single staff member, including the national Ombudsman, will
have the authority to select and prioritize his or her own
caseload independent of other needs.
In addition, the reorganization does not appear to address
concerns we raised in our report about the independence of the
regional Ombudsman, whose position is generally seen as a
collateral duty within EPA.
Finally, placing the Ombudsman in the OIG could affect the
activities of the Inspector General. For example, the OIG could
no longer independently audit or investigate the Ombudsman as
the Inspector General can at other Federal agencies where the
functions are separate.
Senator Clinton, Mr. Chairman, that concludes my oral
statement. I will be glad to respond to any questions that you
all have.
Senator Clinton. Thank you very much, Mr. Wood. I thank you
as the representative of GAO for another very helpful analysis,
which I think clearly lays out the issues that we are concerned
about today.
Ms. Tinsley, as I review Mr. Wood's testimony based on the
2001 report on EPA's Ombudsman, it makes a very convincing case
that the functions that an ombudsman must properly perform
would be quite constrained and difficult to administer within
the Office of the Inspector General, and certainly would be at
odds with any description of an ombudsman's role from the
relevant professional standards.
I think that the real crux of our issue today is the EPA
reorganization that essentially subsumed the office within the
functioning of the Inspector General, and whether that gives
either the real or apparent perception of independence that is
essential to such a position.
Can you comment on S. 606 and the concept of having the
Ombudsman report directly to the EPA Administrator, as opposed
to the Inspector General?
Ms. Tinsley. We have not prepared official comments on S.
606, but when GAO was doing its initial review it asked us to
review the draft legislation and comment. Our concern when we
read it was that it sounded like the IG Act, and in fact gave
the Ombudsman similar authorities to IGs. For example, it
suggested that the Ombudsman would have subpoena authority,
which we already have. It also required us to assist the
Ombudsman as the Ombudsman did its work. So it appeared to me
that it would create another Office of Inspector General, to
look just at some limited aspects of EPA's programs. I do not
think that is necessary.
Senator Clinton. My view of Inspectors General within the
Federal Government has been that they function usually and
primarily as watchdogs over the internal operations of the
Agency in which they are housed; that complaints and concerns
that affect the performance of duties of an individual or a
department within the Agency are clearly within the purview of
the responsibility of the Inspector General.
What we are talking about here is largely concerns driven
by different constituencies--people who are outside, who are
living near a hazardous waste site, who are breathing the air
from the World Trade Center. I do not see any history of either
expertise or administrative responsibility that equips the
Inspector General to perform that function. I very much respect
the role of an Inspector General. I think it is an essential
ingredient within the checks and balances that Federal agencies
have to maintain. But here, we are looking at the legitimate
complaints about the Agency that come from outside. I think Mr.
Wood's description of what is required for independence is much
more convincing than the concerns about duplication of
responsibilities within the EPA when I do not think that they
are the same functions at all.
I am also wondering--in your written testimony, you
referred to various investigations that have been accepted into
the IG's office after the dissolution of the Ombudsman's, and
you indicate that the World Trade Center investigation has been
incorporated into an already ongoing OIG assignment. What does
that mean?
Ms. Tinsley. We had already begun some work to look at
EPA's actions connected with the tragedy at the World Trade
Center. As we looked at the Ombudsman's files, we added some
questions to our ongoing assignment, so that we could address
what was in there. In addition, we did contact Congressman
Nadler's staff, although they did not choose to meet to discuss
our work with us. Of course, your staff was involved in our
briefings when we took over the Ombudsman function, and when
that decision was actually announced by the Administrator.
Senator Clinton. Of course, those briefings led to our
concerns. We are very concerned about the decision to eliminate
the independent Ombudsman and to basically incorporate these
very specialized constituency-driven concerns into the ongoing
work that you do.
Now, I wanted to ask Mr. Wood, you indicated in your
testimony that according to ABA guidelines, key indicators of
independence include sufficient funding, ability to spend funds
independent of any approving authority, and the power to
appoint, supervise and remove staff. Now, based on these
indicators, and based on what you know about the EPA's
testimony concerning their reorganization, do you believe that
the Ombudsman will be able to establish that kind of
independence within the Office of Inspector General?
Mr. Wood. I think the short answer would be no. Our reading
of the standards is that those characteristics are to adhere to
the Ombudsman in its own right, and not by dint of being
included in or placed in an office that also may happen to have
similar characteristics of independence.
Senator Clinton. Also in your testimony you talked about
how placing the Ombudsman within the OIG alters the
relationship between the function of the Ombudsman and the
individuals who make inquiries or complaints. Can you elaborate
on that?
Mr. Wood. I think it harkens back to the distinction that
you just made about an ombudsman being more oriented to hearing
complaints from the public. It is frankly that element of
informal provision of information and dispute resolution that,
actually if included in the IG, we think would violate the
Inspector General Act.
Senator Clinton. So in other words, if the best intentions
of this reorganization were taken at face value and the
Ombudsman were incorporated within the Inspector General Act,
that might in itself violate the legislative act establishing
the Inspector General.
Mr. Wood. They can define a position--and I believe this is
what EPA is intending to do--in a way that does not violate the
Act. However, our point is, if you do that, you have removed an
essential element of what an ombudsman is.
Senator Clinton. Right. Well, I think that our concerns,
Ms. Tinsley, do not reflect in any way upon you or your office,
but really go to the heart of the matter, which is that the
EPA, as we heard very eloquently and forcefully presented by
Congressman Nadler, has not responded adequately to the
concerns and complaints and the realities that are present in
Lower Manhattan. I speak specifically about that, but as
Senator Allard said, there are many other cases in Colorado and
elsewhere where that has been also a problem; and that not
until the independent Ombudsman got involved was there any
answer forthcoming about a lot of the deep anxieties that
people rightfully had. Then all of a sudden, these hearings
that are held for 11 hours where people are putting forth very
disturbing evidence about how their efforts to clean their
homes, how their efforts to use respirators were basically
either short-circuited or denied, raised serious questions
about the EPA's functioning. All of a sudden, the Ombudsman is
gone.
That certainly raises some serious questions about what the
EPA's real goals are. I think that many of us believe that we
are going to have to take legislative action to clarify what
was the original idea behind the Ombudsman when first created
back in the 1980's, that this would be an independent voice
with independent authority, independent budget. I think we have
seen a perfect example here as to why we need that.
Senator I am going to have to excuse myself, like our
Chairman, and I appreciate your being here to carry on with
this very important hearing.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo [assuming the chair]. Thank you very much. I
apologize for being late.
Let me make my apologies to the committee and to the
audience as well. We had a very important Republican Conference
this morning that started early and we thought was going to get
done before this hearing began. It ran on and on and I was
unable to leave there on time. So I apologize for being late to
the hearing today.
[The prepared statement of Senator Crapo follows:]
Statement of Hon. Mike Crapo, U.S. Senator from the State of Idaho
Thank you, Mr. Chairman.
I appreciate your convening this legislative hearing on S. 606, the
Ombudsman Reauthorization Act. As you well know, this measure is of
critical importance to Idahoans and many communities throughout the
country.
Before I make my opening statement, I would like to extend a
welcome to all of our guests today who have been invited to comment on
the legislation. I would also like to express my appreciation to Kathy
Zanetti of the Shoshone Natural Resources Coalition, who has traveled
all the way from Wallace, Idaho, to be with us today.
The position of ombudsman has a long and distinguished history.
Several Federal agencies, State governments, and other organizations in
the U.S. have established ombudsmen to fill a unique role of resolving
grievances. An ombudsman is more than just a fact-checker or a bean-
counter. An ombudsman is link to our communities and a last recourse
for many who cannot find assistance with their grievances.
Establishing an ombudsman is a delicate task. It requires just the
right amount of initiative, investigative experience, and confidence of
and advocacy for the public. To maintain the trust of the public,
however, an ombudsman needs to operate without even the appearance of
interference from others within the agency. For their part, operations
officials whose work may be investigated need to feel that an ombudsman
is fair and professional.
For another analysis on the proper functions of a Federal
ombudsman, I'd like to take few moments to read some excerpts from the
Administrative Conference of the United States' report entitled, ``The
Ombudsman: A Primer for Federal Agencies.''
<bullet> Creating an ombudsman provides both the public and the
government a way to resolve a dispute that persists in spite of efforts
to deal with it at the operational level.
<bullet> Executive ombudsmen . . . should report to the head of the
agency . . .
<bullet> The ombudsman should, in general, have the power to
conduct a formal interview of all agency personnel on any matter under
investigation. The ombudsman's jurisdiction should encompass all the
grievances arising from the agency's dealings with the public. Among
the potential advantages of the office are its accessibility for
citizens, its speed, its flexibility, and its informality. The
ombudsman should be encouraged to look into a complaint even where no
'case or controversy' exists, other remedies have not been `exhausted,'
or the complaint is not `ripe' in the legal sense.
[The report is from 1990. No longer in existence, the
Administrative Conference of the United States was established as an
independent Federal agency to ``promote improvement in the efficiency,
adequacy, and fairness of procedures by which Federal agencies . . .
[perform] governmental functions.'']
Turning to another source, we should look to comments of the United
States Ombudsman Association, the organization of public ombudsmen,
which will also be submitting testimony today. While the USOA generally
supports the establishment of independent ombudsman agencies, a model
many States have followed for public ombudsmen, for the investigation
and resolution of complaints, the association believes that S. 606
would do much to improve the functionality of the ombudsman's office
within the EPA. What's more, the USOA recommends that ``everything
reasonably possible should be done to maximize the ombudsman's
independence within the agency where the office is situated.''
The GAO wrote a report in 2000 on the problems with which the EPA
has established the Office of the National Ombudsman and will be
testifying here today. The report closely follows the American Bar
Association's guidelines for ombudsmen--independence, budget and
staffing authority, and the power to select cases. It is my expectation
that the GAO's statements today will point out that the EPA's
transition of the Office of the Ombudsman at best leaves many questions
unanswered and at worst, fails to heed the recommendations of the
report. The GAO's recommendations for the EPA Ombudsman are generally
consistent with the language of S. 606.
Despite all the support for the approach outlined in S. 606,
perhaps what is most troubling is the reaction of the EPA to the
communities throughout the country that have expressed concern with
what they believe to be a ``muzzling'' of the important ombudsman
function. When asked about how the ombudsman will function, agency
personnel have indicated that there is no current operating model, nor
is one expected for the foreseeable future. For communities that depend
on the last recourse provided by the ombudsman, this is not a
comforting development. It is my hope that the EPA will be able to
announce today its guidelines for the operations and future of the
Office of the Ombudsman and lay aside many of our troubling concerns.
Mr. Chairman, I understand that you have other commitments that do
not allow you to remain with us for all the panelists. Before you
leave, I want to share with my thanks for calling this important
hearing.
I look forward to a productive, informative, and vigorous
discussion on S. 606 and the many issues involving the Office of the
EPA National Ombudsman.
Thank you, Mr. Chairman.
Senator Crapo. I would like to ask a couple of my own
questions, and then we will turn to Senator Carper. Again, I
apologize for not having been here for most of your
presentation of your testimony. However, I have read your
written testimony and am familiar with the issue.
Ms. Tinsley, I also realize that you have probably been
through this, answering this question already a lot, but it
seems to me that what we are learning as we get reports from
the U.S. Ombudsman Association and we review the American Bar
Association's standards, we get the GAO reports and other
things, is that probably the most significant factor in
establishing an effective ombudsman's office is independence.
As you know, at the outset when the proposal was made by EPA to
transfer the Ombudsman's Office to the OIG, I raised the
questions about who was going to make the decisions about what
cases are going to be taken. Who is going to make the decisions
about what staff will be hired and what staff will be allocated
to a particular investigation? Who is going to make decisions
about travel? Who will actually review and approve the report
of the Ombudsman? Will it be the Ombudsman him-or herself or
will the Ombudsman submit that report to the Inspector General
for the Inspector General's final approval? Would the Inspector
General have the authority to change an Ombudsman's report
under the set-up that you now have?
It is my understanding that the answer to all of those
questions is that it is the Inspector General who will be
making the final determination in each of those areas. The
Inspector General will decide which cases the Ombudsman can
take. The Inspector General will decide what funding resources
will be allocated to the Ombudsman, will decide what staff the
Ombudsman will have, will decide what travel will be
authorized, and will actually decide whether the report of the
Ombudsman is sufficient and make the final decision as to
whether the report will be issued in its proposed form. Is that
correct?
Ms. Tinsley. Ultimately, I am responsible for everything
that happens in the Office of Inspector General. Quite frankly,
the way things work is I do not need to get engaged normally
unless I get called in for a tiebreaker, if you will. All our
reports are done under the government audit standards and are
Ombudsman's work will be as well, which has rigorous quality
control included. I cannot change a report because our reports
are based on the information that is gathered in the analysis
that we have done. We work very hard to make sure that
everything we say is accurate and supportable. So I do not go
around changing reports.
The work we do and how we budget for it is based on those
cases that are most important and those that we think will
address our stakeholders, the Congress and the Agency's needs.
The Ombudsman's work appears at this point to be primarily very
high-risk from the standpoint of environmental protection and
public health protection. Those are the kinds of cases that we
give the highest priority to. At this point based on what we
have seen, I am not concerned that we will not be able to
address the existing and future Ombudsman workload within our
normal work processes. Once we have done this for a while, if
we find out that we cannot, we will adjust our work processes.
To date, it appears that the way we go about doing and
prioritizing all of our assignments will work for the Ombudsman
work as well because it is floating to the top.
Senator Crapo. Well, let's just take the case of the Idaho
work that is being done by the Ombudsman. My understanding when
the shift was made to move the Ombudsman's Office into the IG's
Office that--well, I actually asked the question at that point,
who is going to issue the report, because we still want and
wanted then to have the report issued promptly. The answer that
I got was that the Ombudsman would be encouraged to issue his
report soon. That report would have to go to the IG for final
review and then it would be promulgated. There was no assurance
that the report that the Ombudsman issued would be the report
that the IG authorized.
Now, I hear you telling me that you are not likely to
change that, but are you telling me you cannot change that
report?
Ms. Tinsley. I cannot change it unless there is evidence to
show that there is something inaccurate in the report.
Senator Crapo. What you are telling me, then, is that you
are a final overview over the Ombudsman. If you do not agree
with the Ombudsman's report because you see different evidence
or read the evidence a different way, that you can disagree
with it and change it.
Ms. Tinsley. I could do that as long as it was in
accordance with our standards. That has never happened in a
report since I have been the IG, but it would have to be
supported by the evidence.
Senator Crapo. The point that I am making is that that
makes you the Ombudsman.
Ms. Tinsley. I think that makes me ultimately accountable
for the work of the Ombudsman.
Senator Crapo. I think we may be saying the same thing.
Ms. Tinsley. Semantics, yes.
Senator Crapo. I also wanted to go back and make sure that
I understand correctly that with regard to the question about
how much staff is allocated, what travel is authorized, and so
forth--those are also decisions that the Ombudsman has to
obtain permission from basically you for.
Ms. Tinsley. We have a process where we allocate budget
funds to different pieces of the organization. If someone runs
short, usually there is not a problem with moving money from
one piece to another, which we have the authority to do with
our budget. So again, I do not see any issues with travel, with
assignments, with anything because thus far we have not had
issues in our organization with that kind of thing.
Senator Crapo. I can tell you from my perspective, I do not
know about during your tenure, but I have seen issues at the
EPA over those issues relating to the Ombudsman.
Let me just ask one last question. When we in Idaho first
decided that it would be helpful, we hoped helpful, to get the
Ombudsman to be involved in what is happening in the Coeur
d'Alene Basin, we made our pitch. Our congressional delegation
asked the Ombudsman to take the case. We were very fortunate
that he agreed to do so, in my opinion. Once again, if we were
starting that process all over again under your current
structure, wouldn't it be you that we have to make the real
pitch to, in addition to the Ombudsman? We would have to go to
the Ombudsman first, but we would also have to go to you to
make sure that you would also approve and agree to allow him to
take that case?
Ms. Tinsley. The way the process works in our organization
normally is that if we get a congressional request, I do not
usually go out and talk to the congressional staff. In this
case, it would be our Office of congressional and Public
Liaison, where the Ombudsman is sitting. They would prioritize
the work and I would just find out through our normal
management information system that you had a high priority
request and the staff had decided that it was important for us
to do.
So it is more an information function for me. I do not
manage every assignment, every trip. I try to stay aware.
Senator Crapo. I realize that you do not do that, and that
is a sign of a good manager, but the point I am making is that
you could if you chose. If something came up and somebody said,
we really do not want the Ombudsman investigating Idaho. You
could say no.
Ms. Tinsley. I could say no.
Senator Crapo. That is the point I am trying to make. That
is the independence issue that I am trying to get at.
Mr. Wood, I have a lot of questions for you, too, but I
know I have used up my time, so we will see if we get a second
round here.
Senator Carper, I believe you are next.
Senator Carper. Well, you are our Chairman. I guess you can
decide.
[Laughter.]
Senator Carper. Seize the day--carpe diem, carpe diem.
Senator Crapo. That is right.
Senator Carper. To our witnesses, thanks for joining us
today.
Do I understand that the statutory authority for the
Ombudsman was created in 1984? Does that sound about right? The
statutory authority for the Ombudsman expired in 1989?
Mr. Wood. I believe it was 1988.
Senator Carper. Since that time, there has been no
statutory authority for this position. So it has been about 13
or 14 years since the statutory authority for the position
expired. Do I understand that this hearing is designed to find
out whether it is appropriate for the Ombudsman to be located
or housed, supervised by the IG, the Inspector General, as
opposed to being a more independent party within EPA? Is that
pretty much----
Senator Crapo. Perhaps I could answer that. That is
generally the point. As you may be aware, there is legislation
that has been introduced that Senator Specter and I and several
others are cosponsors of, which is also a subject of this
hearing. That legislation would create an independent Office of
the Ombudsman. After that legislation was introduced, there
were also the actions by the EPA to address the issue itself by
moving the Office into the IG's Office.
So this hearing, as I understand it, is sort of to cover
all of the issues.
Senator Carper. All right. It seems to me, just as a casual
observer here today more than anything else, that if we wanted
to resolve this issue, we could simply take up your legislation
and pass it and send it on to the President and we would
resolve just where this position ought to lie.
Senator Crapo. So stipulated.
[Laughter.]
Senator Carper. I am ready to move right to markup at this
point in time.
Mr. Wood, let me just ask of you, what do you make of the
legislation that Senator Crapo here has introduced, along with
a couple of our colleagues? Is there any merit in it at all?
Mr. Wood. I am sorry?
Senator Carper. Any merit in it at all?
Mr. Wood. Yes.
Senator Crapo. Be very careful with your answer.
[Laughter.]
Mr. Wood. I will be.
Senator Crapo. Just kidding.
Mr. Wood. Like the IG, we have not submitted any formal
comments, but I have read the bill and I think by doing a few
of the key things that are consistent with the standards
promulgated by the professional ombudsman associations, it
would go further toward----
Senator Carper. Do they have their own association?
Mr. Wood. Oh, there are actually a couple, yes.
Senator Carper. Rival associations?
Mr. Wood. There is the Ombudsman Association and the U.S.
Ombudsman Association.
Senator Carper. All right.
Mr. Wood. There is also a coalition of Federal Ombudsmen.
The bill does have certain provisions that would promote
structural independence, for example, things like reporting
directly to the Administrator, a separate budget over which the
Ombudsman would have control, and within Civil Service
guidelines, the ability to hire and fire its own staff--things
like that.
Senator Carper. When you look at the legislation, do you
see anything that you think we ought to change before we go to
markup on it?
Mr. Wood. I guess we would like the opportunity to go over
it in a little bit more detail, but we will be glad to supply
comments.
Senator Carper. All right. Good.
Ms. Tinsley, any comments on the legislation? I do not want
to put you in the hot seat here. If you rather just pass, you
can do that, but anything you find with the legislation that is
especially appealing or not appealing?
Ms. Tinsley. As we read through the proposed legislation--
we did this about a year ago--our only concern was that it
seemed to duplicate a lot of the IG's role from the standpoint
of investigations of agency activities, which I see as an IG
role and which is what the IG Act created the IGs to do.
Senator Carper. So you are not quite ready for us to go
straight to a markup on that legislation?
Ms. Tinsley. I think we would like to provide some comments
where we see conflicts if you were to do that.
Senator Carper. Fair enough. Does it seem peculiar to you
that the Congress, which has not authorized or provided
statutory authority for this position for 13 or 14 years, is
now concerned with where this position is housed within EPA? Do
you see any irony in that? That is not a fair question.
Ms. Tinsley. No.
Senator Carper. All right. You do not have to answer that.
I see a little irony in that myself.
All right. Thank you both very much. Mr. Chairman, thanks.
It is a pleasure to call you Mr. Chairman.
[Laughter.]
Senator Crapo. Thank you very much. Maybe we will talk to
you about cosponsoring the bill.
Senator Carper. All right.
Senator Crapo. Senator Specter.
OPENING STATEMENT OF HON. ARLEN SPECTER, U.S. SENATOR FROM THE
COMMONWEALTH OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
At the outset, I am pleased we are finally having this
hearing. I have been very much concerned about what has been
going on at Marjol, and the conflict which has been reported to
me and to others about what has happened with Mr. Robert
Martin, and a disagreement with the Inspector General, as I
understand it--that is what I want to hear about--with Mr.
Martin resigning, contending that he had not been given notice
and his files had been seized. I am glad, Ms. Tinsley, that you
are here and Mr. Martin is here so that we can try to make a
determination as to what has actually happened.
Mr. Chairman, I have a great many questions for this panel,
but I think it would be most expeditious, at least speaking
from my point of view, if we heard from Mr. Martin, with Ms.
Tinsley remaining, so we can see what the differing positions
are and the appropriate inquiries can be made by this
committee.
Mr. Crapo. That is not the structure that we had set up for
the hearing. I don't know, Ms. Tinsley, can you remain here at
the hearing during Mr. Martin's testimony?
Ms. Tinsley. Well, I had another appointment scheduled. We
can call and try and change that.
Senator Specter. Excuse me?
Ms. Tinsley. We could call and try and change that. I had
another meeting after this, but we could call and try and
change that.
Senator Specter. We could appreciate it if you would. What
I would like to do, Mr. Chairman, going right to heart, we have
waited for this hearing for a long time, and it is not to the
point to ask Ms. Tinsley questions, then to hear from Mr.
Martin without hearing Ms. Tinsley and giving her a chance to
give her position. So I would like to move right to that.
Senator Carper. Mr. Chairman, I do not have any objections,
if it is agreeable to you, I think it is a perfectly good idea.
Senator Crapo. Well, one of the issues here is we have in
the next panel, if I remember correctly, a number of other
witnesses which could take some time. Are you suggesting that
we bring Mr. Martin forward at this time?
Senator Specter. If Ms. Tinsley can wait until the others
have testified, that would be most orderly. If she cannot, then
I would request to hear from Mr. Martin at this time.
Senator Crapo. I think that maybe the easiest thing to do
would be to hear from Mr. Martin at this time, and then you
could ask questions of both of them on the panel at this point.
Senator Specter. I would very much appreciate that, Mr.
Chairman.
Senator Crapo. Mr. Martin, would you please come forward?
We will deviate from our procedure briefly. Mr. Martin, what we
would do is allow you to make your presentation and then
following that, we will return to Senator Specter for
questions. Does that work, Senator Specter?
Senator Specter. Thank you very much, Mr. Chairman, that
would be fine.
Senator Crapo. Thank you.
This is Mr. Robert Martin, the immediately preceding
Ombudsman.
Mr. Martin.
STATEMENT OF ROBERT MARTIN, FORMER EPA NATIONAL OMBUDSMAN
Mr. Martin. Thank you, Senator Crapo, members of the
committee. It is very good to be here, very good to see you
again, Senator, and Senator Specter as well.
With your permission as Chairman, I would like to
incorporate for the record my written statement.
Senator Crapo. Without objection.
Mr. Martin. Thank you.
I also have present with me Mr. Devine, who is my legal
counsel. He may be able to answer questions as well for the
benefit of the committee.
Senator Crapo. Thank you.
Mr. Martin. Thank you.
That being said, I really just have a few points and would
be available to answer any and all questions that Senator
Specter and others have on the committee.
The National Ombudsman function as I served in it for
approximately 9.5 years as a career employee of the U.S.
Environmental Protection Agency is gone. It has been destroyed.
That happened when I was summarily transferred to the Office of
Inspector General. My position description, which specified my
duties as Ombudsman, was eliminated. I was being sent to an
unclassified position within the Office of Inspector General
where frankly I would no longer be Ombudsman. To go there under
those terms, in my view, would have been a betrayal of my
charge as Ombudsman, and also a betrayal of the communities
which I had served in many cases for many years, including in
Idaho and Pennsylvania. So I would not go. I resigned.
So I appear before you today as an ordinary citizen, like
many of the folks I worked with over the years. I am pleased to
do that.
Second, I would like to make the point that I feel, as both
a legal and a practical matter, the National Ombudsman function
cannot exist within the Office of Inspector General. I do not
believe the organic statute of the Inspector General allows for
that, and I do not feel, as a practical matter, that it can
work. The National Ombudsman function, as I performed it over
the years, was open, totally open and transparent. I do not
feel it can work in the IG. So I do not feel that, good
intentions notwithstanding, we have an Ombudsman today. I hope
that this committee and this Congress does the right things and
makes one, for all the people who have been helped by this
important institution, and will continue to need that help.
Because you do not have an Ombudsman today, I feel that
there are many communities, New York City included, that are
not protected from an unchecked bureaucracy. I guess I harken
back to the quote which Senator Clinton asked Congressman
Nadler to read into the record by former Justice William
Douglas. It is not that we are dealing with bad, venal people,
it is just that bureaucracies tend to get out of control if
they are not checked. I think it is a fundamental tenet going
back to the beginning of the country--the separation of powers,
checks and balances. I think the Ombudsman function is such a
check and balance and must exist independently to protect
American communities.
By transferring the function to the Office of Inspector
General, that is gone. That is gone, in my opinion. In so
doing, I feel communities lost, and I do say lost, a means of
acquiring truth. As Senator Allard said earlier, truth is what
came from the Shattuck case in Colorado. Truth is what was
evolving in Idaho and in Throop, PA and in a number of other
cases which were ongoing during my tenure. Openness is gone,
too.
I tried to bring to the job three things over the year. One
was to really listen to people. That is hard work, and not
justify the position of the EPA--sanction what had happened
before. I thought it was always important to truly listen, go
back to square one, understand why it is we were even there,
especially in Idaho, Mr. Crapo.
Second, to bring compassion. I do not feel that EPA brought
a lot of that to different communities. That is needed because
we work for the people. We work for the people, not the other
way around.
Third, to ensure thoroughness. In each and every case, I
had undertaken over 9\1/2\ years, I had heard from the Agency
that there was not a problem, except in Idaho. You've got all
kinds of problems in Idaho. I found in the end analysis in many
of these cases that we had not been thorough enough in
understanding the problems we were facing. Instead of listening
to the people who always offered real good information--real
common sense facts--we often talked to each other in EPA or
talked to other government entities. People were not treated
right. Things did not happen, as they should have happened, and
some things happened that should not have happened. I did the
best I could over 9\1/2\ years to make sure that has changed.
In so doing, I had the help of a number of people. I would
like to commend them at this time--my former investigator, Mr.
Kaufman; my secretary, Louise Hall; my chief scientist, Doug
Bell; and also a group of young men who never quit as interns,
Mr. Spencer Haines, Mr. Ken Remelt, and Mr. Justin Blum.
Much was done, much was done through the National Ombudsman
function for many years, to bring truth and openness, and I say
a measure of justice, too, in the end, in many of these cases.
It was not done by me alone. It was done in collaboration with
Members of Congress, with people like Senator Allard,
Congressman Nadler, Senator Crapo, Senator Specter. A free
press also was important, and direct one-on-one ground-level
communications with people in their homes who provided all
kinds of evidence that was very useful in the end in
determining what recommendations were proper to make to EPA
management to address the situation.
That needs to continue. You know what? I feel it will. We
can discuss the law. We can discuss the facts. I have and
continue to have I think an abiding faith in the strength of
the American people and their communities. That will abide.
Last, in the way of a vision for where all this goes, I
feel this committee should proceed to markup as soon as
possible on the Ombudsman Reauthorization Act of 2002. I think
that the function should once again have the sanction of the
Congress. I think it needs to be a true and independent
National Ombudsman for the environment. I think it should
report to the Congress and be able to make recommendations to
the executive branch, including the EPA. I think it should
report to where the people have placed their trust, which is
this body.
During the interim period, I guess I want it known that I
did resign. I did not just completely walk away. There was a
complaint pending with the Office of Special Counsel. They
asked me to mediate with EPA to see if maybe I could finish the
work I had started for a very limited period of time and then
go. I guess I want you to know that would be my desire. The
deadline for mediation has passed with no response from EPA. I
guess that is where things are.
Senator Crapo. Thank you very much, Mr. Martin. We
appreciate your being willing to come out of order and make
your remarks.
Mr. Martin. One final request--because of what happened to
me, frankly, I also think that whistleblower rights should be
protected. I understand that there is legislation pending in
the Senate to allow for that--the Whistleblower Amendments
Protection Act of 2002. I would also recommend that, and
suggest that the salient provisions be incorporated in the
Ombudsman Reauthorization Act. That is all.
Senator Crapo. Thank you very much. As I was saying, those
of us who have worked with you recognize and appreciate the
influence you have been able to have in the communities where
we serve. In fact, it was in Idaho where you first became
involved in the Triumph site, where we finally were able to get
some resolution. That was one of the main reasons we tried to
successfully invite you back to Idaho to look at the Coeur
d'Alene basin issues. I realize the matter is now in
negotiation with regard to the litigation that is ongoing, but
I certainly would hope that some way would be worked out that
you could finish the investigation in Idaho, and truly conclude
that work as well as maybe other work that you had been working
on.
I want to tell you my personal thanks for the work that you
have done for Idaho and for the Nation.
Mr. Martin. Thank you.
Senator Crapo. Senator Specter, did you want to continue
with your line of questioning now?
Senator Specter. Yes. Thank you very much, Mr. Chairman.
Mr. Martin, I agree with what the Chairman has said,
Senator Crapo has said, and I thank you for what you have done
on a Pennsylvania matter. My focus of attention is on Marjol,
an area where my staff and I have been working since 1988. It
goes back to Senator Heinz' tenure in the Senate and a great
deal of activity in the ensuing 14 years. Based upon what has
been reported to me from your activities and Mr. Kaufman's
activities, you took very strong positions for protection of
the community seeking broad relief under Superfund and strong
activities from EPA, and essentially have been thwarted in
those efforts.
Would you state exactly what did happen, first with respect
to your recommendations, and second with respect to what the
EPA did--the higher levels of the bureaucracy?
Mr. Martin. Yes. Prior to the completion of my preliminary
report on the Marjol site, which was filed on October 10 of
last year with the Agency and also with the Pennsylvania
congressional delegation, I had investigated the Marjol case
for seemingly about a year. At the beginning of that case, as
you may know, Senator, I held a public, on-the-record hearing
in the community itself, at which residents testified and
virtually every member of every surrounding local government
was present, as was Congressman Sherwood.
Senator Specter. What were your recommendations, Mr.
Martin?
Mr. Martin. My recommendations, filed in October of last
year, were to bring in the Superfund Program. The Superfund had
not been invoked at Marjol, except in the very early days of
the site to perform a removal action.
Senator Specter. Why hadn't Superfund been invoked?
Mr. Martin. Why had it not been invoked?
Senator Specter. Correct.
Mr. Martin. The rationale of the Agency from the Region 3
office was that because there was a responsible party, one, and
because the responsible party was viable, two--meaning
financially--that the it would be valid to proceed under the
Resource Conservation and Recovery Act for corrective action,
as opposed to bringing in the Superfund program.
Senator Specter. When you terminated, it has been brought
to my attention that you considered your files to have been
seized. Is that correct?
Mr. Martin. That is correct.
Senator Specter. Would you say exactly what happened?
Mr. Martin. To the best of my recollection, yes, I shall. I
was aware of the planned transfer of me and the National
Ombudsman function to the Office of Inspector General. As a
pretext, I had in September of last year following the release
of the General Accounting Office report, written to the
Administrator. That is the only time I have ever written to an
Administrator, but I felt it was important to do so. Of course,
recommended that the GAO recommendations be adopted, so that I
would have full powers as Ombudsman--meaning to hire and fire
my own people, supervise my own people, have my own budget, so
that these cases could be moved and finished.
I said in that writing that in any event, in no event,
should the function be transferred to the Office of Inspector
General because that would only provide the false appearance of
independence and not true independence. I offered to meet with
the Administrator to discuss my own recommendations in
conjunction with the GAO's. I heard nothing until November,
when I received a direct communication from the Administrator
that she was deliberating and would make a decision shortly. I
then heard on November 27 that a decision had been made, that
the National Ombudsman function would be folded into the Office
of Inspector General.
Senator Specter. In your opinion, why was that done?
Mr. Martin. In my opinion, that was done--well, I can tell
you what the effect of it was. It was to silence effectively
the National Ombudsman function and eradicate its independence.
Senator Specter. Well, was it done in common parlance, Mr.
Martin, because you had become a hair shirt? You had given them
too much trouble and they wanted you out of the position where
you could exercise independent judgment on what ought to be
done on these sites?
Mr. Martin. It became clear to me that as I was summoned in
and told of the transfer that I was not going to be sent there
as Ombudsman. I would not have my position description which
specifies that I am Ombudsman and lays out my duties. I would
no longer be able to communicate directly and independently
with the Congress and with the media, and I feared even the
people who had asked me to do the cases.
Senator Specter. Was the Administrator unhappy with what
you were doing? Did the Administrator in effect disagree with
your policies and wanted to eliminate your authority by making
the transfer to the Office of Inspector General?
Mr. Martin. As I noted earlier, we had never spoken
directly, so I had no first-hand knowledge of what her motives
were. I can tell you that is the subject of an FBI inquiry
right now. I have been asked to interview with the FBI and have
done so.
Senator Specter. What is the nature of the FBI inquiry?
Mr. Martin. There have been allegations made relating to
potential conflicts of interest of a financial nature on the
Administrator's part, with respect to my cases.
Senator Specter. Aside from that, was there a general
displeasure by the head officials in EPA with the kinds of
strong recommendations you were making and the insistence that
you were pushing forward to get corrective action as you saw
it?
Mr. Martin. Yes.
Senator Specter. Did this exist beyond Marjol, in other
places?
Mr. Martin. Yes, it did.
Senator Specter. Where else?
Mr. Martin. It existed in Idaho. It existed in New York
City. It existed in many of the other cases.
Senator Specter. Back to the issue of seizure, precisely
what happened?
Mr. Martin. On April 12 of this year, U.S. District Judge
Roberts of the District Court in Washington vacated a temporary
restraining order which had served to protect me from being
transferred and my files from being transferred to the Office
of Inspector General. Within hours of the vacating of the TRO,
I understand orders were issued to come for the files in my
office as soon as possible, which included the Marjol and Coeur
d'Alene basin files.
Senator Specter. You say orders were given?
Mr. Martin. Yes. You cannot move----
Senator Specter. Who gave the orders?
Mr. Martin. That I am not sure about, sir, but I know you
cannot move----
Senator Specter. When did you first learn of it?
Mr. Martin. I learned of it after--well, I want to note
that while the TRO was being vacated and personnel were being
sent to remove the files, I was on official travel. I was not
in Washington at the time.
Senator Specter. Were you told that your files were going
to be taken before they were taken?
Mr. Martin. On that occasion, no.
Senator Specter. On any occasion?
Mr. Martin. I understood in January from Assistant
Inspector General Johnson that the Office of Inspector General
intended to take the files, but that was before Federal Judge
Roberts issued a temporary restraining order.
Senator Specter. When you have used the word ``seized,''--
it is not my word, it is the word I understand to have used--
why did you characterize it as ``seized''? That is a very
forceful term, signifying taken against your will. Why do you
use that term?
Mr. Martin. Well, in the first instance, I did not agree to
the transfer. I felt it was an invalid transfer. As I noted a
moment ago, I was on official travel at the time this occurred,
testifying before the legislature in New York City, and then
working on the Shattuck case in Denver, Colorado. I understand
there is an e-mail from the Office of the Administrator
providing instructions that the files were to be taken as
quickly as possible.
Senator Specter. E-mail from the Administrator, Governor
Whitman?
Mr. Martin. From the Office of the Administrator. I do not
know that it was from her personally, sir.
Now, the only personnel remaining was my senior scientist,
Mr. Bell. Because I was away, he was asked to transfer all of
the files. He did so under protest and duress.
Senator Specter. Mr. Martin, without those files can you
carry on your work at Marjol or the other locations you
identified?
Mr. Martin. It would be very hard.
Senator Specter. Would it be possible--hard or impossible?
Mr. Martin. It is possible. I could begin the cases de
novo, and ask for cooperation among all the parties to start
again.
Senator Specter. To start again.
Mr. Martin. Yes, to start again. I must note that in
between the issuance of the restraining order and the final
seizure of the files, there was an attempted seizure of the
files while the restraining order was in effect.
Senator Specter. An attempt to take the files?
Mr. Martin. Yes. My senior scientist, Mr. Bell turned them
away at the door, showing the restraining order.
Senator Specter. Ms. Tinsley, were Mr. Martin's files taken
without any notice to him?
Ms. Tinsley. No. We notified his office and he was aware of
the transfer, I believe, because we tried to notify him by
phone and through the supervisor that he had prior to the
transfer. So actually, we----
Senator Specter. Who tried to notify him?
Ms. Tinsley. Our Assistant Inspector General, who would be
his direct supervisor did that.
Senator Specter. What is the name of that person?
Ms. Tinsley. Gary Johnson.
Senator Specter. Is that person here?
Ms. Tinsley. No, he is not. I believe that Mike Shapiro,
who was his supervisor with the Office of Solid Waste tried to
contact him as well. Since I did not do this piece directly, if
I tell you anything that is not completely accurate, we are
going to have to correct it for the record because I was not
personally involved in moving the files. When the files were
moved to us, Mr. Martin was part of our office. It was after
the restraining order had been lifted and the move of the files
that we had planned since early January then was actually
taking place in April.
Senator Specter. Were you aware that the files were to be
removed?
Ms. Tinsley. Yes.
Senator Specter. Mr. Martin, did you hear from either Mr.
Johnson or Mr. Shapiro that the files were to be removed?
Mr. Martin. No, not at the time the restraining order was
removed, no.
Senator Specter. Did you hear about it at any time prior to
the time the files were removed?
Mr. Martin. I heard about it as I was returning to
Washington. By that time, it had nearly been finished.
Senator Specter. Ms. Tinsley, why has EPA moved to take Mr.
Martin out of the position of Ombudsman and put him in another
spot where he can no longer carry out the functions that he was
exercising as Ombudsman on Marjol and these other locations?
Ms. Tinsley. From my perspective, that is not what
happened. He was just going to be part of our office and be
part of the team that would resolve these cases I would hope
more quickly than he was able to do by himself.
Senator Specter. Are you testifying before this committee
that it was your intention to make him part of your team and to
leave him with the authority to continue to do what he had been
doing?
Ms. Tinsley. He was going to be part of our team. He would
not have the authority to do everything, but we could apply
more resources than he had in his office, and so we were
hopeful that we could work with him as one of our lead people
and respond to a lot of these cases at the same time, which I
think was difficult for him to do with a staff of only three or
four people.
Senator Specter. So your testimony is that you were doing
it to help him by giving him more resources, contrasted with
setting up an arrangement which took him away from the
authority he had as Ombudsman, to work on the files and to do
what he wanted to do with Marjol, to have a Superfund site
declared?
Ms. Tinsley. Our intention as to do this to help the
public, the people who had inquiries that were not being
responded to as timely as they might be if there were more
resources applied.
Senator Specter. Has the public been responded to in a more
timely manner since Mr. Martin has been replaced?
Ms. Tinsley. Not as quickly as I had hoped. Since he
resigned, he was not here to help us go through the files and
determine what work was left to be done.
Senator Specter. Ms. Tinsley, what did you expect him to do
when you took away his authority as Ombudsman and when you went
in a took the files out from under his control, with every
objective observer understanding that you were moving him and
cutting his authority out? Do you expect this committee to
accept your explanation that you wanted to leave him in a
position of power, but to help him carry out what he had
intended and was trying to do?
Ms. Tinsley. I do expect you to believe that. That was our
intention and we thought we could set up a system where he
could be successful and part of responding to the folks that he
was working with on these investigations in a more timely
manner.
Senator Specter. Did you ask Mr. Martin to stay on?
Ms. Tinsley. Mr. Martin would not talk with us. We tried to
arrange meetings with him, but he refused to attend. Once he
was on our staff, as soon as he was back in town, he resigned,
so we did not ever have an opportunity to talk with him. Our
intention was never to remove him from his files, it was to
move the files to our office where he was going to be working.
Senator Specter. Without notice to him. Mr. Martin, did Ms.
Tinsley ever ask you to come in to talk?
Mr. Martin. No, she did not.
Senator Specter. Did anybody ask you to come in and talk,
to stay on the job?
Mr. Martin. Mr. Johnson communicated that he wanted to
talk, by voice mail. I indicated in a reply that before doing
so I wanted official paperwork showing that there had been a
transfer and the nature of the transfer. That was not provided
until weeks or a month after my resignation.
Senator Specter. Ms. Tinsley, at this point you have a very
heavy obligation to move to help the people of the Marjol
community. The inference that I draw is that Mr. Martin was
ousted because people did not like what they--the higher
bureaucracy at EPA did not like what he was doing and that it
was retribution. This is a long involved history. It is not
just the taking of these papers, and not just failure to have a
conversation with him when he was being removed. Ms. Tinsley,
do you disagree with the conclusion of the GAO, ``The National
Ombudsman will not be able to exercise independent control over
the budget and staff resources needed to implement the
function''? Do you think that is true or false?
Ms. Tinsley. As an individual, the person does not control
all the budget within the Office of Inspector General. We do
that as an organization. The Ombudsman will be part of a team
that has access to all the budget resources.
Senator Specter. So you agree that it is true that it is
the National Ombudsman, but you are saying the whole team can
do it.
Ms. Tinsley. Correct.
Senator Specter. Would you agree or disagree with the
General Accounting Office conclusion that the National
Ombudsman, and these are my words, does not have, ``the
authority to select and prioritize his or her own caseload,
independent of all other needs''?
Ms. Tinsley. The caseload prioritization is done as a part
of the team as well, based on risk. I am not sure you were here
earlier when we talked about this, but the highest ranking risk
factors in the way we assign work have to do with threats to
human health and the environment. The Ombudsman work that is
open at this time meets that high criteria, and it is the kind
of work that we all address immediately.
Senator Specter. Since Mr. Martin has left, Ms. Tinsley,
what has your team done specifically to solve the Marjol
problem?
Ms. Tinsley. OK. We have 16 boxes of files on Marjol and we
have one of our senior auditors assigned to that. He is going
through the information so that we can finish what work needs
to be done. Without Mr. Martin, it was difficult for us because
of the way the files were put together to even know the status
on cases. So we have been working through that on our own.
Senator Specter. You have one person assigned to review
files in 16 boxes?
Ms. Tinsley. We have eight people right now working on 130
boxes. One person is working specifically on Marjol, as I
understand it. Let me just see if I know how far along we are
on that. We are about halfway through with the records that Mr.
Martin had on Marjol.
Senator Specter. When will you finish?
Ms. Tinsley. We hope by the end of July.
Senator Specter. When will you start to act to correct the
Marjol problem?
Ms. Tinsley. We would be able to get started immediately.
Senator Specter. Now?
Ms. Tinsley. As soon as that analysis is done. In my mind,
we have started now because first we have to assess where we
are before we can move forward. We would be happy to meet with
your staff on this if they would like to provide us input, or
anyone else you could direct us to. We are very anxious to
respond to these open cases.
Senator Specter. Well, what are you doing specifically
besides a laborious task of reviewing files, which has been
going on for a long, long time, to act to solve the problem at
Marjol? Reviewing files is not very helpful unless you finish
it, know what you are doing, and do something. When are you
going to do something about the Marjol problem? When are you
going to act to correct that gaping sore by treating Marjol as
a Superfund site and correcting it?
Ms. Tinsley. We will not be able to anything until we
finish the file review and then we will get started. I am sorry
I cannot tell you more, but without knowing the specifics of
what went on at Marjol, it would be difficult for me to respond
about what we need to do in the future.
Senator Specter. Well, would you please make a
determination of those specifics and let this committee know?
Ms. Tinsley. Yes. We would be happy to do that.
Senator Specter. My staff is not exactly in a position to
direct the activities at Marjol, although it may be that my
Executive Director in the area, Andy Wallace, could take over
and do it. Perhaps we can find some constitutional way to do
it, but we have been at it for 14 years, and I have not seen
any matter in the many, many I have handled that leaves me with
such dissatisfaction as this one does. I would be less than
candid with you, Ms. Tinsley, if I said that I am totally
unconvinced that you removed Mr. Martin or rearranged him to
bring him in to give him more resources as part of your team.
The inference is unmistakable by what Mr. Martin has done at
Marjol and other places that he was in effect a hair shirt,
that he was doing things the upper management in EPA, and for a
long time--not just since Governor Whitman has been
Administrator, through Democratic and Republican
Administrations. Speaking for this Senator, I am going to try
very hard to try some way to correct it, either through the
confirmation process or the appropriation process. We are not
going to let this matter stand.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Senator Specter.
Let me go back to a series of questions. I would like to
talk, to the extent we can get into it, just about where we go
from here. In Senator Specter's questions and Ms. Tinsley's
answers, it became very obvious that regardless of where one
stands on what should have been done, how it should have been
handled, we are at a point with regard to the Ombudsman's
functions where we are trying to pick up speed, get back to
where we can become effective again. We are not in an effective
stage because we have so much file review to take care of, yet
we have sitting right here in the room a person who has the
institutional knowledge who created those files, who did all of
the research and the work that generated the files that would
give us the ability to move forward, and do so promptly in
areas like Pennsylvania and Idaho and elsewhere.
Mr. Martin, you indicated that--well, tell me first of all,
if I understand correctly, in the litigation that was
undertaken after the judge lifted the temporary restraining
order and entered his order, the matter was referred to the
Office of Special Counsel. Is that correct?
Mr. Martin. That is correct.
Senator Crapo. Can you tell me what happened at that point
in the litigation? Maybe we could ask your attorney to advise
us. Would you please state your name and association for the
record?
Mr. Devine. Thank you, Senator.
My name is Tom Devine. I am the Legal Director of the
Government Accountability Project.
After Mr. Martin filed a Whistleblower Protection Act
complaint of constructive discharge, the Office of Special
Counsel asked if he would like to try to achieve a constructive
resolution of the dispute through mediation. He thought hard
about this, and decided that he would prefer that approach and
proposed a resolution which would allow him to go back for a
limited period to complete his work on the pending cases.
Yesterday was the deadline for the Environmental Protection
Agency to respond and inform the Office of Special Counsel if
they wanted to participate. We have not heard from them.
Senator Crapo. Ms. Tinsley, is that your understanding as
well? Or are you involved in this?
Ms. Tinsley. I am not familiar with that matter, nor am I
involved in that. I do not know what was going on on that
matter.
Senator Crapo. OK, thank you.
I am sorry, state your name again for me please? Your name
again?
Mr. Devine. Tom Devine.
Senator Crapo. Devine. Mr. Devine, is it still Mr. Martin's
position as you represent him that he would like to engage in
the mediation?
Mr. Devine. Do I still represent him?
Senator Crapo. No. As his representative, is it your
understanding that it is still his position that he would like
to engage in mediation if possible?
Mr. Devine. Oh, yes sir. Mr. Martin feels we can accomplish
a lot more by letting him get back to work, rather than having
a retaliation fight.
Senator Crapo. I realize that we in the legislative branch
are not in a position to try to dictate outcomes of litigation
or of these types of Office of Special Counsel activities. It
seems to me that one thing we are allowed to do is to encourage
all parties to fully and fairly follow the law. Right now, we
have a process in place under the law which at least opens the
opportunity for mediation.
It just seems to me that perhaps we could, within the
boundaries within which we are supposed to stay in the
legislative branch, at least encourage the parties to view the
mediation opportunity as one here which would allow us to, at
least with regard to a part of this issue, find some
resolution--a part of this issue that is very important to
Senators like myself in Idaho and I assume Senator Specter in
Pennsylvania and others, who do not want to see all of the work
that has gone on so far with regard to the generation of these
files and the work that has been done in the areas where we
have hoped to see some progress, go back to the starting point
and have to start de novo or with new people reviewing files
and so forth.
So I guess I would just on my own behalf, and I would let
Senator Specter say whether he agrees, encourage all of the
parties to consider some way under the law to deal with each
other fully and fairly to mediate this issue if possible.
Senator Specter. Mr. Chairman, may I say that that is an
excellent idea.
Mr. Martin, would you be prepared to sit down with Ms.
Tinsley and take her up on her representation that she wanted
to give you additional resources and would like to have your
expertise in solving the problem?
Mr. Martin. Yes, so long as----
Senator Specter. Ms. Tinsley, would you prepared to do
that?
Ms. Tinsley. We are not part of that negotiation, is what
my counsel tells me. This is actually an action that the Agency
is----
Senator Specter. Well, I am not concerned about whether you
are part of that process. What I am concerned about is how we
solve the problem. I have heard you say that you really
welcome--you wanted Mr. Martin to stay on and help you solve
the problem and that you wanted to give him additional
resources. I just asked him a question if he would be willing
to sit down with you and try to work out an arrangement where
he could stay and EPA could have the benefit of all the work he
has done, and you would make a good-faith effort to let him
carry forward duties as a part of a team. Would you be willing
to sit down and talk to him about that?
Ms. Tinsley. If that is within my authority to do, and the
thing I do not know as I sit here is whether or not that is,
because I do not know what went on between Mr. Martin and the
Office of Special Counsel. So I apologize. I just do not know
what I can----
Senator Specter. Well, aside from what went on between Mr.
Martin and the Special Counsel, you have a situation here where
you have responsibility as Inspector General to do this job.
You have taken over the Ombudsman's work. You have taken it
over, as you have testified here, in a context of trying to
give him additional resources and help. You have been stymied
in your efforts because you do not have his expertise on those
voluminous files.
Now, I would like to see you work out an arrangement, if
you are really serious and in good faith, where you would sit
down and carry that out and try to work out with him an
arrangement. I would assign Tom Dower who has worked on this
matter for 7 years. Your way, you would like inputs from the
staff, to sit and talk with you about it. Would you be willing
to do that?
Ms. Tinsley. I think we would be willing to meet with your
staff member, and as I said, short of that, I just have to find
out what I can do, what I really have the authority to do,
because I do not want to promise you I can do something that I
cannot do, but I will certainly look into it.
Senator Specter. I do not want you to meet with the staff
member. I want you to meet with Mr. Martin. You said you would
like to have him back and to have his expertise help you. Well,
he is prepared to do that. We are a couple of lawyers here. You
are an attorney, right?
Ms. Tinsley. No, I am not.
Senator Specter. Well, you have that advantage then.
[Laughter.]
Senator Specter. Well, I know of no reason why you cannot
sit down and talk to the man. You have said that you would like
to have his help and he is willing to sit down and talk to you.
I would like you to do that. OK?
Ms. Tinsley. OK.
Senator Crapo. Thank you.
I would just like to get clarification on one matter. Ms.
Tinsley, you indicated that you were not a part of the OSC
mediation effort. Did you mean the Office of Inspector General
was not, or that the EPA was not?
Ms. Tinsley. I think that EPA is handling that. EPA, the
Agency, not EPA the Office of Inspector General, and there is a
cut between us on these kinds of things. My understanding is
that the Agency's Office of General Counsel----
Senator Crapo. Is the one that would be responding to the
OSC?
Ms. Tinsley. Yes.
Senator Crapo. All right. Thank you.
Well, I appreciate what I hope will be an opportunity to
see if we cannot, at least with regard to these issues that are
outstanding and where so much work has been done, figure out a
way to move forward without a loss of Mr. Martin's expertise.
Getting back to the legislation, let me just ask Mr. Wood.
I told you I had a few questions for you. I am going to go to
you now. I think I will get to each of the others of you on
this question.
One of the sets of input that was submitted to the
committee in writing by an entity that is not going to be a
witness today was written testimony by the U.S. Ombudsman
Association. In their testimony, the Ombudsman Association
suggested that there was a problem--that they are generally
supportive of the legislation that we have proposed, but have
made recommendations to improve it. Their single most
significant recommendation was that they do not believe that
the Ombudsman's Office, in order to obtain the independence
that we want to achieve for the Ombudsman, they do not believe
that the Ombudsman's Office should be in the EPA period, but
instead that it should be, sort of as Mr. Martin said in his
testimony, located outside the EPA, and in their testimony they
say preferably in the legislative branch. Then they go on to
say, perhaps by situating it in the GAO.
Now, I am not necessarily asking you whether the GAO would
be willing to undertake the Ombudsman's Office, in which case
they would then directly report to Congress on these
activities, but I want to ask you the broader question. Do you
believe that the legislation would be improved or that, in an
effort to obtain independence for the Ombudsman's Office, do
you believe that it would be better for the Ombudsman in this
situation to report directly to Congress rather than to the
Administrator, as the legislation sets it up now?
Mr. Wood. I think what is behind the comments that they
made is, there is a model out there for Ombudsman that is
largely derived from the State level, where there are some who
report directly to legislatures.
At the Federal level, what we found from our work in the
report last year was there can be effective ombudsmen in the
executive branch who report to the top of their agency. So I
guess at first blush, I would have to say that I do not think
that it would be necessary to put it in the legislative branch
because there are models at the Federal level that seem to be
working.
Senator Crapo. What would happen if the Ombudsman were to
undertake a care or reach findings and so forth which were
problematic for the Administrator to whom he or she reports?
Wouldn't that in a sense cast a cloud on their independence
again?
Mr. Wood. It could, although one of the things that I think
your bill does not have right now that maybe it could have is
specific provisions for the removal. In other words, the
conditions that would have to be met before the Ombudsman could
be removed. There might be legitimate reasons, but by
specifying what those are, that might be one way to help
promote independence.
Senator Crapo. Thank you.
Ms. Tinsley, I know you do not necessarily support
transferring the Ombudsman's Office period to anything
different than its current situation, but do you have an
opinion you would like to register with regard to whether the
legislation should be changed to move the Ombudsman's Office
outside of the EPA entirely?
Ms. Tinsley. Gee, I think GAO would be a great place for
the Ombudsman.
[Laughter.]
Ms. Tinsley. My only concern is on the investigatory role
which I think duplicates what IG's were created to do. GAO also
has the authority to do the kinds of investigations, which are
really review of agency programs similar to program
evaluations. GAO has that authority now. So I think that right
now there are two responsibilities for that. There is the IG
who can do that work, and there is GAO, who reports directly to
the Congress. The IGs report to both the Congress and the
Agency head. So I could see that investigatory function sitting
either place, and I think already both of us have that
authority. So I do not know if you need to establish the
authority a third time.
Senator Crapo. All right, thank you.
Mr. Martin, any thoughts on the issue?
Mr. Martin. Congress.
[Laughter.]
Senator Crapo. We are running a little bit late. I have a
lot of other questions, but I think at this point I am going to
excuse this panel, and again I would like to thank you, Mr.
Martin, for coming up out of order, but we appreciate all of
you. This panel is excused. Thank you very much.
We would like to call up panel No. 3 now--Ms. Danielle
Brian, the executive director of the Project on Government
Oversight; Ms. Katherine Zanetti, the facilitator for the
Shoshone Natural Resources Coalition; Ms. Susan Shortz, the
president of Halt Environmental Lead Pollution, or HELP.
While the panel is coming up, let me personally welcome Ms.
Zanetti who is from Idaho. We appreciate your coming here, and
again I apologize for my being late and not being able to be
here for the first part of the hearing. Kathy is very, very
involved in the issues in Idaho, and we appreciate not only the
attention over the years that you have given to it, but your
ability to make the effort to get here today, Kathy. Thank you.
I would like to ask each of you--I do not know exactly what
was announced at the beginning, so I will re-give the
instructions. We have these little lights here that try to help
you keep your testimony to 5 minutes. We have all read or will
all read your written testimony, which is submitted as a part
of the record. We like to keep the verbal presentation to 5
minutes each so that we can have as much give and take on
questions and answers as possible. So I would just encourage
you to try to keep your eye on that light system as you
proceed.
Ms. Brian.
STATEMENT OF DANIELLE BRIAN, EXECUTIVE DIRECTOR, PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Brian. Thank you, Senator.
I am the executive director of the Project on Government
Oversight, POGO, a politically independent, nonprofit watchdog
that investigates, exposes and seeks to remedy systemic abuses
of power, mismanagement and subservience by the Federal
Government to powerful special interests. We strive to promote
a government that is accountable to the citizenry.
Thank you for asking me to testify on this issue and the
brazen attempts spanning two Administrations of EPA management
to weaken and ultimately destroy the EPA Ombudsman's Office.
POGO first became aware of a problem when citizens from Lake
Township, Ohio brought the Industrial Excess Landfill Superfund
site to our attention more than 5 years ago. Because of various
concerns regarding the EPA's decisions regarding their cleanup,
citizens from the community attempted to gain an Ombudsman
review. Their request was denied, not by the Ombudsman, but by
the EPA itself. We got involved then, as their Congressman did,
and it took almost an entire year to get the top EPA management
to overturn their decision.
The fact that the Ombudsman was not allowed to decide for
himself whether or not the case was worthy was our first taste
of EPA management's efforts to silence the Ombudsman. We
decided to look at other EPA regions around the country to see
if the problems at IEL were unique. Unfortunately, we found
they were not. We learned about the Shattuck site in Denver, CO
and the Brio site in Harris County, TX, among others. I would
like to point out that, and Senator Allard talked about the
Shattuck site, but in that case, there was approximately 8
years of conflict prior to Ombudsman involvement, meaning the
government, the community and the potentially responsible
parties were at loggerheads and could make no progress.
After the Ombudsman became involved, there became a more
transparent process. His recommendations were so weighty that
the EPA agreed to change their remedy, recognizing that they
had implemented an improper remedy. In the Brio case in Texas,
there had been conflict, again, for 4 or 5 years before the
Ombudsman's involvement. After his investigation and report,
again the EPA totally changed their remedy, now resolving
really what the community considers the best remedy, the EPA
has put it in place, and very hearteningly, the community, the
PRPs and the government are working closely together now.
My written testimony outlines a long history of efforts,
despite this success, by EPA to squelch this Office. Despite
these obstacles, the National Ombudsman Office has been
remarkably effective at getting the EPA to review its decisions
and correct its mistakes. Not only did the Ombudsman offer the
communities successful resolutions to their particular
troubles, he gave them reason to believe that sometimes the
government can do the right thing. I find it remarkable that so
much effort has gone into silencing the Ombudsman's Office,
when this Office can only make recommendations. He never forced
these changes. They were just so obviously right that the EPA
acknowledged them and changed their position.
We are here today because Senate 606 has been introduced to
provide the Ombudsman's Office statutory authority. This step
is absolutely essential, given EPA's history. The agencies
reviewed by the GAO all have Inspectors General as well as
Ombudsmen, although none of their Ombudsman's programs are in
any way affiliated with the respective Inspector General's
offices. The legislative history of the IG Act makes this
clear, stating, ``Broad as it is, the IG mandate is not
unlimited. Issues requiring substantive or technical expertise
will often fall outside his proper sphere.''
It is particularly important that the EPA have an
independent Ombudsman's Office because of a regulation in the
Superfund Act that prevents a remedy decision from being
challenged until after the remedy has been implemented. In
other words, the community has no recourse if they are
concerned, other than the Ombudsman. The Ombudsman is the only
recourse the communities have when they feel that their health
and environment is not being adequately protected.
Thirteen years ago, a Senate subcommittee of this full
committee issued a bipartisan report which found that
statistically the involvement of the PRPs led to cheaper
remedies which did not necessarily protect health and safety.
We are releasing today the results of our investigation into
the EPA's handling of Superfund sites, and I ask that it be
included into the record.
Senator Crapo. Without objection.
Ms. Brian. We concluded that because the EPA has come to
rely so heavily on the PRPs to help develop the cleanup plan
for sites, the system is skewed to favor the cheapest, but not
necessarily the best remedy. Again, I think it is worth
emphasizing, the Ombudsman's Office is the only place for
communities to ensure that a thorough and adequate
investigation of the site has taken place, and the best
interests of the community have been considered.
Senate 606 is essential for the independence of this
critical function. However, we also believe that the provision
to move the Ombudsman to the Administrator's Office will not
work. POGO has determined that genuine independent oversight
over policy cannot proceed from within the bureaucracy it
evaluates. We would encourage the committee to consider placing
a National Ombudsman Office in either a White House office, or
as has been discussed, perhaps attached to the GAO in the
legislative branch. We also believe the legislation should
include whistleblower protections for those who come to the
Ombudsman with information.
I think it is worth mentioning that were the Whistleblower
Protection Act Amendments, Senate 995, in effect today, Robert
Martin would have had legal protection from the EPA's efforts
to dismantle--well, success in dismantling his office simply
because he did his job. I urge all the members of this
committee who have not yet to become cosponsors of that
important legislation.
In the end, Bob Martin must be reinstated to finish his
cases, both because his work is terribly important and because
the government must not be party to such an injustice as
squelching the sole voice working to get the truth out for the
protection of communities in need.
Thank you.
Senator Crapo. Thank you very much, Ms. Brian.
Ms. Zanetti.
STATEMENT OF KATHERINE ZANETTI, FACILITATOR, SHOSHONE NATURAL
RESOURCES COALITION
Ms. Zanetti. Mr. Chairman, my name is Kathy Zanetti and I
am a 49-year-old grandmother of four and a proud member of a
fifth generation family from the historic Silver Valley of
North Idaho. I would like to thank you for the opportunity to
speak before this committee today on a topic that has dominated
the attention of my community for over the last 2 years. I am
honored to represent the citizens of the Silver Valley and to
testify in support of Senate bill 606.
I am the chairman for Shoshone Natural Resources Coalition,
a nonprofit group of volunteer citizens who work and live in
the Coeur d'Alene basin and are concerned about human health,
environmental and economic issues. We are a grassroots
organization made up of a very diverse group of individuals.
SNRC represents business owners, school district officials,
community leaders, local elected officials, and generations of
Silver Valley families. Many of our members have been involved
in EPA issues in the upper basin for 20-plus years.
We are a community filled with an intense pride for our
heritage, our families and most of all, our way of life--a way
of life now held precariously in peril by the decisions of
various Federal agencies. Although our approach and our
opinions about cleanup in the Silver Valley may be different,
we are united in the common need for a truly independent
Ombudsman.
The Environmental Protection Agency came to the Silver
Valley in the early 1980's shortly after CERCLA or Superfund
became law, to address specific cleanup at the Bunker Hill
Smelter, and they have been there ever since. In almost the
last 20-some years, the EPA has spent over $400 million in the
Silver Valley and has not even completed the original scope of
cleanup. EPA Region 10 deceived the public by first promising
that the Superfund site in Kellogg would not extend beyond its
initial 21-square-mile box. Yet they have unilaterally expanded
the range of remediation to 1,500 square miles, crossing State
lines, adding to the cost another $360 million, possibly as
much as $1.3 billion, and creating the Nation's largest
Superfund site, with little or no regard to the citizens or
communities that have been involved and must endure these ever-
changing boundaries.
Although there may have been a human health risk that
warranted their presence at the time in the early 1980's, there
is no medical or undisputed scientific evidence that one exists
today. Yet today, after all the money and the billion-dollar
expansion plans, EPA's own central impound area at the Bunker
Hill Superfund site remains the largest point source
contributor of metal into our watershed. It is our sincere wish
to take care of any necessary cleanup that remains to be done
in the upper basin, to get out from under the stigma of
Superfund and on to rebuilding our lives, as well as the
economic stability of our community.
The Superfund actions around the Nation have taken on a
life of their own, which holds communities such as mine in a
never-ending state of limbo. It appears that Region 10 EPA in
its dealings with the Coeur d'Alene basin of North Idaho has
become a bureaucratic machine driven by personal agendas. After
years of attending meetings, drafting comments and writing
hundreds of letters, we realized that our voices had fallen on
deaf ears. In reality, we were merely being counted as part of
the Agency's number games. They hold meetings and workshops,
but they did not seem to listen to the concerns of the
communities involved.
We have truly had no where else to turn until the Ombudsman
stepped forward. The Office of the Ombudsman has answered the
call of the Silver Valley, first under the Office of Solid
Waste and Resource Management, where its authority was
maintained by the very entity that it was investigating.
Budgets and personnel were used to control Ombudsman activities
and whose mail was often intercepted by EPA congressional
affairs, all of which resulted in a total lack of independence.
The United States Department of Justice even attempted to kill
the investigation to protect its natural resource damage
lawsuit.
Second, at present under the Office of Inspector General,
the Ombudsman is to assume duties other than those designated
under Superfund, to take on an increased workload and basically
cease to exist as an Office. It is now part of another
bureaucracy within a larger bureaucracy.
While we welcome the attempt to work with the IG's Office
and will welcome them with open, but cautious armed to the
Silver Valley, we feel that in the long term this situation
cannot work. There must be a dedicated, independent Ombudsman.
He serves as the only intermediary between EPA and citizens
when things have gone terribly awry. This Office is the last
resort and sometimes the only resort for the common citizens
and common sense. The Office of the Ombudsman above all else
requires independence so that it may work effectively with both
sides to find reasonable and successful solutions that are
environmentally sound and meeting the needs of communities
everywhere.
The Ombudsman's position is the people's court of last
resort. Communities like the Silver Valley need an Ombudsman
who not only can, but who must intervene on environmental
health and safety issues on our behalf without having their
hands tied, their actions influenced or censored by the
controls of other agencies. Only the Ombudsman can answer our
call to do the right thing. To be effective and of true service
to the public, an ombudsman must be independent, accountable
and unbiased. I believe Senate bill 606 achieves these
objectives. Without S. 606, communities like mine have nowhere
to turn when they have exhausted all hope of working
constructively with the EPA. I, for one, refuse to continue to
allow the Environmental Protection Agency to use my own tax
dollars unchecked against either me or my family.
Finally, in this great Nation our structure of government
is set up with many forms of checks and balances, as we have
heard today, so that citizens have a channel to express their
concerns against abuse or capricious acts of public officials.
The National Ombudsman Office is that channel and therefore
should be able to work unimpeded to help achieve fair and
reasonable checks and balances of the EPA.
Thank you for the opportunity to testify this morning in
front of this committee, and I urge you to please support
Senate bill 606. I would ask that in conclusion, I could submit
an additional written testimony from another group within our
basin.
Senator Crapo. Without objection, so ordered.
Senator Crapo. Thank you, Ms. Zanetti.
Ms. Shortz.
STATEMENT OF SUSAN SHORTZ, PRESIDENT, HALT ENVIRONMENTAL LEAD
POLLUTION (HELP)
Ms. Shortz. Thank you, Mr. Chairman, and members of the
committee for this opportunity to be able to speak to you
today.
I am from the small Borough of Throop. It is a small
residential community with a population of slightly over 4,000.
Our Marjol site which Senator Specter spoke about earlier is a
former lead acid battery recycling facility located in this
Borough. The 43.9-acre site is owned by Gould Electronics.
There are approximately 65 residential homes within 500 feet
and 25 of those homes are actually within 50 feet of the site.
The Lackawanna River borders on the west.
There are over 500,000 cubic yards of battery casings,
along with other carcinogens, on this site. It would be enough,
if was dug up, to fill 12 football fields 50 feet deep, to just
give you an idea. There are also PCBs, PAHs, antimony and
arsenic. There is also soil contamination that has taken place
outside that site. In reality, this is an illegal, toxic,
hazardous waste dump in the middle of a small town, without any
permits, without any regulatory controls.
Since 1987, there have been ongoing negotiations between
EPA, Gould and our own Pennsylvania Department of Environmental
Protection. Assistance teams came in from the EPA back in 1987
and did testing on our properties. At that time, they told us
that we would be made aware. It was not until 1988 and after we
had made written request of the EPA to get the results of our
own personal private properties that we were finally given that
information and found out that we were the potential for a
Superfund site.
In April 1988, a CERCLA order was signed between EPA, DEP
and Gould and the site remediation began. At that time, under
the CERCLA, the emphasis was made on the residential properties
because we were living in immediate harm. Our cleanup level is
500 parts per million for lead, and yet a lot of States
actually are now down to 200. We had in our homes levels in the
thousands, and in our backyards in areas where our children
played, levels well over 15,000.
Through the Ombudsman's investigation, we found out that
EPA and DEP were aware of this well into the early 1980's, and
were negotiating back and forth with EPA all this time without
making any of us aware of the conditions in which we were
living.
The citizens of our community have been fighting since that
time to get our properties fully cleaned up in a manner that we
feel is safe to protect our health and welfare. Gould, the
owner of this site, has repeatedly said from the very beginning
that they will only cap the site, and their only concern is the
cost-effective cleanup. Although the Borough of Throop has
actually spent over $1.5 million in order to prove that this
EPA cap is not appropriate, no one has been willing to listen
to us, not EPA or Gould, until now the Ombudsman and Chief
Investigator Kaufman and the geologist Doug Bell came into our
area.
The first Ombudsman hearing took place in August of 2000
and the results were amazing. We found out that there are over
240 potentially responsible parties in this site, including the
Federal Government, not just Gould. We also found out that
Gould received millions of dollars, not only from lawsuits
against these potentially responsible parties, but also in
liability claims against insurance that they had and other
sources. We further learned that specifics of a secret
amendment to the consent order which changed the requirement
from a temporary storage of soil on the property that had been
removed from our residential properties and stored onsite, to
permanent entombment.
The geologist, Doug Bell, his discussions with our
engineering consultants finally put some credence to the
concerns we had that this site is in fact undermined from deep
anthracite mining, has the potential for mine fires, and it
also has ongoing subsidence occurring there.
When the Ombudsman came in, our decision was placed on
hold. After that hearing, a couple months later we were called
to Philadelphia to speak with the EPA Region 3 Administrator,
who at that time was Bradley Campbell. He listened to our
concerns and he assured us that he would wait for the
recommendations of the Ombudsman before they came up with their
final decision. However, within a very short couple of months,
suddenly the final decision came out. Not only were we
dissatisfied with the final decision, but it was greatly
different from the initial proposal. In the initial proposal,
they were at least going to remove approximately one-third of
the contaminants, and they were going to some site
stabilization, and then a cap. Under the final decision that
came out, there was no guarantee of any removal, only what as
they put it would not fit under the cap. They would no longer
solidify anything on the site. They would simply put a cap on
top, and that was the end.
The Ombudsman through his investigations has continued to
find problems with that decision, and has repeatedly brought to
our attention the fact that we could still even be on an NPL
listing, which EPA over the years has denied us that ability to
do. They have constantly told us that we cannot fit there. They
are hiding always behind sound science. Several years ago as we
started this process, the term used to be the state-of-the-art
cleanups and state-of-the-art landfills et cetera. Now we are
``sound science.'' Yet, sound science allows 250,000 parts per
million of lead, PCBs, PAHs to be abandoned in the middle of a
residential community adjacent to a river, on top of mine
subsidence, on top of a potential mine fire, with nothing more
than a cap. They have told us that operation and maintenance
will maintain the safety of our community.
Senator Clinton is right when she said about the
complexities of being involved in a site such as ours, after
almost 20 years of involvement, if you are concerned, you learn
an awful lot about these types of issues. This expertise has
come from listening, from reviewing et cetera. Even then, they
would not listen to our concerns. We came back with our own
people that gave us expert advice on this. Then we had the
Ombudsman come in and again the doors have been closed.
Since this investigation began, the Ombudsman's Office has
now been effectively eliminated, as far as we are concerned. We
have heard nothing more on our sites. Tinsley earlier today in
the testimony said that they are willing to work and sit down
and go over this information and start again from scratch. We
have been through several Administration changes. We have been
through five project managers alone on our site. We have been
through numerous congressional changes. We have started from
scratch over and over and over again, and hit a wall every
single time that we have come along.
I ask that the Senate bill 606 be strongly considered. I
ask that the discussions earlier about bringing Mr. Martin back
on the job, so that he could at least continue with these that
are in progress, so that we could finally get closure.
Unfortunately, a lot of the people that have been involved in
1987 are no longer with our site. They have all been deceased.
There are very few of us that are still here that are fighting,
but those of us that are and the town that I live in want
closure, and we want closure that our families and our future
generations can live with.
I thank you for this opportunity.
Senator Crapo. Thank you very much, Ms. Shortz.
I would like to thank each member of the panel for your
preparation and for the effort that you went through to be
here. I know that it is not an easy thing to prepare for, and
then make the personal and financial commitments to get to a
congressional hearing and to share the information that you
share. So I do want to thank you all for that.
I do have a number of questions for you, and I would like
to go through these questions with each of you in the sense
that I will ask the question and then each of you can take an
opportunity to respond if you would like to.
I assume from the nature of your testimony the answers to
some of these questions, but I want to be very explicit about
it. One of the issues, in fact one of the central issues around
Senate bill 606 is whether the Ombudsman's Office should be
reauthorized and we should move forward with it. I assume that
each of you would support the reauthorization of the
Ombudsman's Office. Am I correct?
Ms. Brian. Absolutely.
Ms. Zanetti. Absolutely.
Senator Crapo. Some of you, or one or more of you have
answered this question already, but I would like you each to
elaborate on it a little bit. As you know from the previous
questions we have had, one of the issues relating to the bill
that has been raised is whether the Ombudsman's office, when we
reauthorize it, should be located within the EPA itself, which
would then, as the bill has it, have the Ombudsman reporting to
the Administrator of the EPA, or whether the Ombudsman's Office
should be located in some other place, like the legislative
branch of Government under the GAO or somewhere like that, or
reporting directly to the President in the executive branch, or
something like that.
I would just like to hear what each of you think about that
in a little more detail, both in terms of whether it is
adequate for the Ombudsman to be reporting directly to the
Administrator, and if not, whether it should be somewhere else,
and then if you do have an opinion on where that somewhere else
should be.
Ms. Brian?
Ms. Brian. Yes, Senator, I do strongly believe that this
Office needs to move outside the Agency. That comes in part
because of being students of Federal agencies generally--we are
finding that genuine oversight on policy matters, rather than
the kinds of work that Inspectors General are intended to do,
is very difficult to do from within an agency. Specifically
with regard to the EPA Ombudsman's Office, as I mentioned, we
have been battling efforts since the late, well for 6 or 7
years over two Administrations of EPA Administrators, trying to
whittle away the efforts of this Office to maintain its
independence.
So I am absolutely certain that it would be a mistake for
us to have that Office report to the Administrator because by
the nature of the kind of work he does, it is raising questions
about the wisdom of the decisions that have been made in the
name of the Administrator.
Senator Crapo. Thank you.
Ms. Zanetti?
Ms. Zanetti. In our area, Senator, we were unaware that
there were even any regional ombudsmen. In the years that SNRC
has been involved in the activities up there, we have never yet
seen a Regional Ombudsman. So I believe that the bill should in
fact, if anything, remove him from underneath any
Administration office and become a stand-alone office on his
own. Therefore, he could direct his own Regional Ombudsman
without them being under any undue influence from the
respective Region Administration.
I believe that to gain true independence for his office, he
would need to answer directly to Congress.
Thank you.
Senator Crapo. Thank you.
Ms. Shortz?
Ms. Shortz. I also agree that it needs to be removed from
the EPA agency. Just to cite two examples that occurred
recently in our process, last year through Senator Specter,
Senator Santorum and Congressman Sherwood, we had arranged a
meeting for some of our citizens to come down and speak with
them about our concerns on this ongoing investigation.
Administrator Whitman was supposed to be present at that
particular meeting. In the process of setting up the meeting,
we had specified that we would like Mr. Martin and Mr. Kaufman
present at the meeting so that we could discuss specifically
our investigation. As late as the afternoon before our trip
down with all of our plans made and with all of our information
gathered and together, the meeting was canceled. I feel
strongly the meeting was canceled because or our insistence of
wanting the Ombudsman there. That was not her plan for that
meeting.
Then later on through a lot of letters from the Congressman
and the Senators on the ongoing investigation and what we felt
was hindrance and interference, we were given assurances by EPA
that they were going to be fully supportive, and were going to
give him an office there, and then they brought that to Mr.
Martin's attention. They kind of kept pushing that issue, and
then ultimately they pulled back and said that, well, they were
offering help to Mr. Martin and he was refusing the help. They
did not acknowledge the reason for that refusal.
So I feel as long as the Ombudsman is under the EPA, it is
going to be difficult because you are in fact investigating the
very people that write your approvals and give you your money
and do your performance appraisals et cetera. I think it is an
absolute conflict of interest. So I would like to see it
outside.
Senator Crapo. Thank you. You have raised an issue, Ms.
Shortz, that each of the others have also testified to to some
extent, but I want to go back through it briefly. That is, if I
can re-state what I understood you to be saying, and ask that
you concur with it. In your opinion, as you have observed the
operations of the EPA and the operations of the Ombudsman in
your particular case in Pennsylvania, am I correct in assuming
that it is your opinion that there have been efforts by the EPA
to interfere with the Ombudsman's operations.
Ms. Shortz. I feel absolutely in our case there has been,
and from what I have read and communicated with other sites, I
have no doubt that that is occurring. I find on our site, EPA
has definitely been more pro the polluter than it has been the
citizens and the environment that they are actually supposed to
be protecting. We find it very disappointing, right from hiding
information from you, making it difficult to retrieve
information. They consistently, well even as late as now in
April, we had a second Ombudsman hearing. EPA did not even
attend the hearing. They refused to come because their mind was
made up.
When our decision was put on hold after the Ombudsman got
involved, they continued to try and set up meetings with the
polluter to continue working on the work plan for the cleanup.
So this interference goes on and on and on. As I said, even the
Inspector General's Office in our particular site was involved,
which is where he now is supposed to be housed. They also were
interfering. They were also working against us in getting a
complete investigation, and to get information out that we are
entitled to. We are the ones that are living there, not the
people in the EPA.
Senator Crapo. Thank you.
Ms. Zanetti, do you have a similar observation or any
observation on the issue of from what you have seen in Idaho
with regard to whether you perceive that there is a conflict or
an effort by the EPA to interfere with the Ombudsman's
operations?
Ms. Zanetti. Yes, Mr. Chairman, I believe there has
definitely been a conflict of interest with the EPA trying to
interfere with the Ombudsman investigation. We have tried many
times over in Region 10 to work with the EPA. Time and time
again, they have just simply not listened to us. It was not
until the Ombudsman came to our community that he saw through
the pages of documentation that I believe I am on the opposite
end of the spectrum here. These people are crying for EPA
intervention, and we are crying for them to wrap up the 21-
square-mile box and remove themselves from our area. That is
something that the Ombudsman actually saw through. He looked
through the reams and reams and rooms full of documentation to
the people in the community. He got to know us, our concerns
and our overall genuine good health, of not only generations
past, but the generations that were coming up. He saw through
that. He saw to us, and he in fact was beginning those reports
to EPA and he has been fraught with nothing but backlashes ever
since.
Senator Crapo. Thank you.
I think that is an indication of a good Ombudsman, namely
one who you cannot predict whether they are going to come down
on this philosophical point of view or that philosophical point
of view, but instead someone who is going to look at the facts
and find out whether there is a basis there.
Ms. Brian?
Ms. Brian. Yes, Senator, and I wanted to agree with what
Ms. Zanetti was saying. I think one of the centrally important
parts of the credibility of his Office has been that the Office
is not an environmental office. Their goal is not to be an
environmentalist, to have a particular agenda. They come, they
get all the facts out in the public and they come to the
appropriate resolution. That is how, I think, you end up having
communities and PRPs and the government all sort of coming
together for the first time.
A specific example, as you are asking after our initial
involvement, which I thought was fairly direct intervention
where the EPA just said no, he cannot take the case----
Senator Crapo. That would be intervention, I would say.
Ms. Brian [continuing]. Was later in November 1998. I wrote
to the EPA Administrator at the time asking for a public
process and working group to be initiated to develop
recommendations for improving the independence of the Office.
My suggestion was that that effort include representatives of
the U.S. Ombudsman Association, the environmental community,
labor, industry, good government, public interest groups, the
EPA, the Ombudsman's Office, members of affected communities--
anyone who was a stakeholder in the issue. The response from
the Administrator's Office was they believed, well, she said,
``I do not find that such a review as depicted in your letter
is necessary.''
Shortly after that, however, while they believed that a
public review was not necessary, they created a covert review
internal to the EPA which was promptly convened. They actually
said that the purpose was to review the Ombudsman problem. Who
was it a problem for, other than EPA management?
Senator Crapo. Good point.
I think we have covered the question of whether the members
of the panel agree that we should have independence and what
your opinions are with regard to moving the Office of the
Ombudsman outside the EPA entirely. Ms. Zanetti in one of her
answers raised the question of Regional Ombudsmen, and I
believe what she indicated was they had not heard from the
Regional Ombudsman until the National Ombudsman got involved. I
would like to know from Ms. Brian and Ms. Shortz what your
experience with Regional Ombudsmen has been, and if you want to
toss in anything else, Ms. Zanetti, you are welcome.
Ms. Brian?
Ms. Brian. I think that is a tremendous misnomer because
the Regional Ombudsman, although because of certain
circumstances I understand they are trying to change that, for
the most part they have been part-time ombudsmen. So part of
the time they are supposed to be independent and reviewing all
the evidence and coming to independent conclusions. The rest of
the time, they go back to their jobs working for the people
whose decisions they are evaluating. That is so clearly not in
keeping with what an ombudsman can be. Why would a community in
any way, or a PRP for that matter, trust this person's being
independent?
Senator Crapo. Good point. Did you have any involvement of
the Regional Ombudsman in your region?
Ms. Brian. In the Region, no. I am actually not from a
community. We are from a public interest group in Washington.
Senator Crapo. That is true.
Ms. Brian. In the communities that we have reviewed, the
Regional Ombudsmen have never had any significant involvement
at all.
Senator Crapo. Ms. Shortz?
Ms. Shortz. That is a similar experience to ours. Actually,
how we found out about the National Ombudsman was a former
councilmember of my community had retired in Florida, and he
still gets the local papers and follows what our process has
been all these years. He had sent me a newspaper article about
Mr. Martin's involvement in the Tarpon Springs site in Florida.
He said, ``Gee, this guy looks like maybe he can help you.''
So through our Senators and our Congressmen, we found out
how to contact him. Senator Specter sent a letter requesting
him to review our case, and he came on board. Up until that
time, I did not even know there was this function. When Mr.
Martin came into our community for the first hearing, EPA
brought with them our Regional Ombudsman, and that was the
first time I ever knew he existed or met him. He simply sat at
the table between the EPA officials, never opened his mouth,
never said a word, and I have never seen or heard from him
since.
So I really do not even know what his function is in our
Region. He has not given any input for or against. He has not
communicated with us at all. It is only Mr. Martin that has
tirelessly continued to try and help us through this.
Senator Crapo. Thank you.
Any more that you want to say on that, Ms. Zanetti?
Ms. Zanetti. I think it is obvious, Senator, that because
they sit within the Regional Office, there are undue influences
put on their position and their abilities, and how can they be
of help to communities, again, if they do not get involved, as
we all agree?
In truth, I was unaware that there was a Regional
Ombudsman. In all the times that we have had the interactions
with the Agency, most of them controversial to say the least,
their own public survey will let you know that in our area they
are not very well approved, let's say. Until the National
Ombudsman came, we had no recourse. There was no one that truly
listened to our side of the story, so to speak.
Senator Crapo. Thank you.
One proposal that has been made, and in fact our
legislation does make a stab at this by trying to bring the
Regional Ombudsman under the National Ombudsman, and we did
that in the context of it all being still within the Agency,
although we are now evaluating this question of whether the
Ombudsman should be moved entirely outside the Agency. I am
interested if any of you have any opinion as to whether we
should have a National Ombudsman system, rather than just one
Ombudsman, but one under which we have the 10 Regional
Ombudsmen functioning and responsible solely to the National
Ombudsman.
Ms. Brian. That would be a dramatic change in the current
system, and I think that would be a very wise one. As we know,
there are too many issues for the tiny Ombudsman Office to
handle by itself. I think if they had people in the region who
were reporting to them and assisting them, that would be a
great improvement.
Senator Crapo. Ms. Zanetti?
Ms. Zanetti. I agree that if the Regional Ombudsman were
under the authority of the National Ombudsman and only his
authority and would have no prejudice from any other agencies,
that they could probably be of great assistance to him as well.
Senator Crapo. Ms. Shortz?
Ms. Shortz. I agree with Ms. Zanetti and Ms. Brian. In our
current site, the people that we are primarily involved with
are Mr. Martin, Mr. Kaufman and Mr. Bell. We were only one of
numerous sites all over the United States that they are
involved in. It certainly is a mind-boggling task to try and
bring in this information, filter through it, and act on it,
and have hearings et cetera. So I definitely think they need
more help, and the Regional Ombudsman is I think a good method
in which to do that. Again, they need to be totally answerable
to the Ombudsman. I would think the current system of being
part-time EPA workers and part-time Ombudsmen would have to be
negated.
Senator Crapo. I definitely agree.
All right. I was just checking to be sure there were not
any more issues that we wanted to cover thoroughly at this
time. Again, I apologize to everybody for the lateness of the
hearing. We have had a lot of interruptions today. It has been
a long hearing, but it has been also a very interesting and I
think productive hearing.
I want to again thank this panel, as well as the other
panelists for the time and effort that they have put into
making themselves available to us. We are going to leave the
record open for additional testimony and followup questions
until July 15. Not only may panelists, but others who would
like to submit information for the record are welcome to do so.
We appreciate your prompt response.
If the members of the committee have any additional
questions, we are going to send them to you as well, so you are
not totally off the hook until July 15. If you do receive
additional questions from us, we would appreciate your prompt
attention to and response to those questions.
Again, this is a very critical issue and I think the
testimony today has shown that it is not necessarily a
philosophical issue. You see Senators here from all sides of
the political aisle, the political spectrum. You see witnesses
here from all sides of the issue spectrum. The issue here as I
see it is truly one that is not partisan and not issue-oriented
in terms of environmental policy one way or the other. It is a
question of how we should manage our Ombudsman's functions in
this Nation.
We appreciate the strong interest that has been shown in
this, and I am very hopeful that this strong interest and the
testimony that has been provided today is going to give us the
momentum to move forward to a markup. I think we have some good
ideas to improve the legislation, and hopefully we will be able
to see some prompt action here in Congress.
I also hope that we are going to see some prompt action
between the parties at the EPA and with Mr. Martin and the
Ombudsman's Office so that we can hopefully resolve some of the
other issues beyond just the global policy of how we should
structure the Ombudsman's Office, but deal with the question of
how we are going to resolve investigations that were already
underway when this took place.
So again with that, let me thank everybody for your
attendance, and this committee is adjourned.
[Whereupon at 12:08 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Wayne Allard, U.S. Senator from the State of Colorado
Mr. Chairman, thank you for holding this hearing and for offering
me the opportunity to testify on behalf of S. 606. As you know, this
legislation would reauthorize the Office of the Ombudsman of the
Environmental Protection Agency.
I'd like to keep my remarks brief, but I want to share with the
Committee my reasoning on, and interest in, this issue. I introduced
this legislation in the 105th Congress because of an ongoing battle
between the citizens of a Denver neighborhood and the EPA concerning
the Shattuck Superfund site. The Ombudsman's office was instrumental in
bringing the truth of what was happening in this case to light. The
legislation was reintroduced, by Senator Crapo, at the beginning of the
current Congress because the issue of the Office of the EPA Ombudsman
is still an important one.
I would like to share with you, quickly, the story surrounding the
Shattuck site in the Overland Park neighborhood in southwest Denver and
what the EPA did there. These events have had a lasting impact, not
only on the residents of the Overland Park neighborhood, but on each of
us who looks to the EPA to be the guardian of our nation's
environmental health and safety. In 1997, after several years of EPA
stonewalling, the residents of Overland Park in Denver brought their
concerns about a Superfund site in their neighborhood and their
frustrations with the EPA to my attention. I learned that the
neighborhood had run into a wall of bureaucracy that was unresponsive
to the very public it is charged with protecting and I requested the
Ombudsman's intervention. In early 1999, the Ombudsman's office began
an investigation and quickly determined that the claims made by
residents were not only meritorious, but that EPA officials had engaged
in an effort to keep documents hidden from the public, thereby placing
their health in danger.
Without the Ombudsman's investigation on Shattuck, the residents of
Overland Park would have never learned the truth. The Ombudsman's
investigation brought integrity back into the process. Without the
Ombudsman's work, a trusted Federal agency would have been able to
successfully hide the truth from the very people it is charged to
protect. The Shattuck issue is a decade long example of why citizens'
trust in their government has waned. This bill will preserve an
important mechanism within the EPA that the public can trust to protect
their health and safety.
The Shattuck story was a frustrating and often disheartening
experience for all involved. It is an example of what can happen when a
government entity goes unchecked. For the residents of Denver, the
Office of Ombudsman offered the opportunity to get to the truth and
made the health and safety of the public top priority.
Let me make it clear that the main priority in my continued support
of this bill, is to keep the Office of the EPA Ombudsman open for
business and capable of conducting it. In the future, they may find
themselves in a situation similar to the one that residents of Denver
experienced. I want to know that they will have every assurance that
the public's safety will be protected, that its voice will be heard,
that its questions will be answered and that its concerns addressed.
This office should not have its investigative ability restricted,
and its independence should not be compromised. The EPA's actions and
decisions in future cases like Shattuck, should not go unchecked and
citizens in other States should have a public avenue to address
concerns and get answers from the EPA. I know that I am not alone in my
concerns and, unfortunately, that the Shattuck case is not unique. Many
of my fellow Senators and Representatives have experienced similar
concerns over sites in their States. That is why this legislation
remains so important.
I appreciate the efforts that have been made by the current
administration in an attempt to solve some of the problems that the
Office of the Ombudsman has experienced. I know that Administrator
Whitman shares my desire to see this issue to a conclusion that will be
beneficial to all and I appreciate her willingness to work with my
office. Again, Mr. Chairman, thank you for holding this hearing and
your willingness to look further into this matter.
Thank you, Mr. Chairman.
__________
Statement of Hon. Jerrold Nadler, U.S. Representative from the
State of New York
Thank you, Chairman Jeffords. I would like to thank you and the
rest of the committee for holding this hearing today, and for inviting
me to testify, regarding the EPA Hazardous Waste Ombudsman, and in
particular, the role of the Ombudsman in investigating the response of
the EPA to the September 11th terrorist attack in New York. My
colleague, Senator Clinton, has been an outspoken advocate and knows
all too well the problems citizens in New York have been encountering
over the past 9 months. Thank you, Senator Clinton for arranging for
the Field Hearing in New York back in February, and thank you Chairman
Jeffords, for the committee's continued oversight of EPA by examining
this issue today.
As the Congressman representing Ground Zero, I thank you for the
opportunity to share the very positive experience of my constituents
with the EPA Hazardous Waste Ombudsman during the cleanup of the World
Trade Center. Fortunately, for the majority of us in Congress, we have
not needed to know about the EPA Ombudsman. Those of us who have had
the need have similar stories to share; on the one hand, an agency that
seems to ignore the community's concerns and on the other an Ombudsman
willing to listen and investigate complaints about agency neglect.
Ultimately, in a vast majority of the EPA Ombudsman cases, the
transparent Ombudsman process has helped the Administrator, or regional
officials, take proper action to resolve the disputes, resulting in
greater protection from radioactive and other hazardous waste threats.
Both Democrats and Republicans alike have utilized the EPA Ombudsman to
help restore trust in government where it had previously been shaken.
In 1972, Justice Douglas identified the problem that so often
plagues much of the Federal Government:
``The Federal agencies of which I speak are not venal or
corrupt. But they are notoriously under the control of powerful
interests who manipulate them through advisory committees, or
friendly working relations, or who have that natural affinity
with the agency which in time develops between the regulator
and the regulated.''
(Sierra Club v. Morton, 92 U.S. 1361, 1371 (1972)).
This quote by Justice Douglas is as relevant today as it was thirty
years ago. Indeed, this is why the EPA Ombudsman was created by
Congress in 1984 when then-Congresswoman Barbara Mikulski faced an
unresponsive Environmental Protection Agency. As the numerous cases
that were in progress by Ombudsman Martin indicate, the need for an
independent EPA Ombudsman is just as critical today as when the office
was first created.
Today, I am here to share first-hand knowledge of events that
transpired in New York following September 11th. The World Trade Center
case highlights how imperative it is that there be an independent and
effective Ombudsman at EPA.
Immediately following September 11th, I formed the Ground Zero
Elected Officials Task Force, of which Senator Clinton is a member, to
coordinate the efforts of all the government representatives from the
area. The main goal of the Task Force is to assess the needs of the
community in Lower Manhattan, and to ensure that those needs are
addressed by the appropriate government agencies. One area that clearly
was not addressed was the presence of hazardous waste in people's
homes, schools and businesses. In the days following the attack, the
Task Force heard countless complaints from citizens who suffered from
adverse health effects, and/or lacked the resources necessary to test
and clean their apartments and buildings properly. When EPA was
presented with such information, the agency either maintained that
everything was safe, or claimed that the city of New York was in charge
of indoor environments and that EPA had no authority for indoor
environments. The agency maintained this position even after being
presented with independent test results, conducted by long-time EPA
contractors, which showed elevated levels of hazardous materials inside
downtown apartments.
This situation made it very difficult to quickly and effectively
address the mounting casework from constituents who literally had
nowhere to go to get hazardous waste out of their homes. Citizens were
left to fend for themselves, often ended up in court proceedings
against their landlords and building owners, and expended vast
resources on a cleanup downtown that was not conducted adequately or
systematically, but rather on an ad-hoc basis.
After 4 months of this untenable situation, I asked the EPA
National Hazardous Waste Ombudsman, Robert Martin, and his Chief
Investigator, Hugh Kaufman, to investigate. Their involvement produced
a sea change in the relationship of my office, as well as of local
residents, with EPA. My position has always been that EPA should use
its existing authority to take any and all actions necessary to find
out where hazardous materials went following the collapse of the World
Trade Center, and to remediate contaminated spaces, and that New York
should not be treated differently than other parts of the country where
the EPA has engaged in response activities. Ombudsman Martin and Mr.
Kaufman were able to tell us what the EPA should have done, could have
done, and has done at other hazardous waste sites around the country.
But most importantly, the Ombudsman process provided a forum to
communicate with my constituents, listen to their complaints and
concerns, issue requests for the production of documents and
interrogatories, hold public hearings, bring in experts from around the
country to help the citizens understand the full magnitude of the
issues, make recommendations for corrective action, and truly get to
the bottom of what EPA did and did not do.
The key to all of this is that it was a public and transparent
process. We held two eleven-hour hearings that were open to the public,
documented with a court reporter, the transcripts of which are
available to anyone. We heard from residents, workers, business owners,
city and State elected officials, firefighters, police officers,
parents, and the NYC Board of Education. We would have liked to hear
from the government agencies, in particular EPA, but they declined our
invitation to participate.
Except for the Ombudsman, the EPA has yet to engage in a public and
transparent process regarding the cleanup of the World Trade Center. If
anything, it has done just the opposite. Questions have gone
unanswered, information was obtained only through FOIA, if at all, and
trying to get the agency to act has been a lengthy, arduous, and often
unsuccessful process. The Ombudsman process was essential to address
citizen complaints, and focus public pressure on the agency to resolve
those complaints.
In the 4 months from September 11th to January, the EPA maintained
that everything was safe, directed people to the city government for
relief (a government which offered no relief to people other than to
tell them to clean up asbestos-laden dust with a wet mop and wet rag),
and ultimately remained unresponsive to citizens. In the 4-months from
January to May, the time of the Ombudsman process, EPA reversed its
policy and agreed to initiate remediation inside people's homes. Of
course, there were many factors that contributed to this policy shift,
but I do not believe it would have happened, or happened so quickly,
without the Ombudsman process, and the expertise and hard work of Mr.
Martin, his Chief Investigator Hugh Kaufman, and the people who worked
with them to use the Ombudsman process so effectively.
The EPA is finally beginning a cleanup plan, largely because of
pressure generated by the Ombudsman. Unfortunately, there is now no
real Ombudsman to keep a watchful eye on the agency. This is
disconcerting because the EPA cleanup plan is woefully inadequate. For
example, the EPA plans to clean apartments only on request. This
ignores the threat of cross-and recontamination from uncleaned
apartments and from building HVAC systems. The EPA plan provides for
testing only for asbestos in the air and does not plan to assess dust
or hard surfaces that are also pathways of exposure. Nor will the
agency test for any of the other contaminants that were present in
World Trade Center debris such as lead, mercury, dioxin and fine
particulate matter. The cleanup plan is available only south of an
arbitrary boundary at Canal Street, cutting off other areas covered by
the debris cloud, including parts of Brooklyn, Chinatown and the Lower
East Side. Besides not dealing with many potentially contaminated
areas, this presents an environmental justice problem. The workers will
not be wearing protective gear, which would seem to be a clear
violation of OSHA regulations. The EPA has developed this plan without
public comment, and has not established a Citizens Advisory Group or
held public meetings. It has not even established an Administrative
Record accessible to the public.
Quite frankly, the EPA has provided no evidence that the cleanup
plan for World Trade Center debris complies with applicable laws and
regulations, such as the National Contingency Plan and OSHA
regulations, and there is no guarantee that EPA will act in accordance
with existing laws, policies and procedures. The agency must be forced
into a public and transparent process. The people of New York deserve
and need an experienced, strong and independent Hazardous Waste
Ombudsman at EPA now more than ever.
Unfortunately, what has happened to the Ombudsman is just the
opposite. By placing the Ombudsman in the Office of Inspector General,
the position has been stripped of its independence, transparency and
effectiveness. In July 2001, the House Commerce Committee requested
that the GAO investigate EPA management's efforts to interfere with the
EPA Ombudsman's ability to perform his job. Two critical
recommendations were made by the GAO. First, the GAO recommended that
EPA should provide the Ombudsman with a separate budget and, subject to
applicable Civil Service Requirements, the authority to hire, fire and
supervise his own staff. Second, the GAO recommended that the EPA
Ombudsman be given more structural independence. By moving the
Ombudsman to the Office of Inspector General, and stripping away his
position description, the EPA has done exactly the opposite. The
necessary procedures that legally must be followed in operating an
Inspector General's office are inconsistent with the procedures
necessary for an independent, transparent Ombudsman function. For
example, employee protection provisions and openness of operation must
be very different in an Inspector General's office because it is part
of a law enforcement function, whereas an Ombudsman must be more open
to the public and, at times, must be a public advocate.
The EPA Ombudsman is crippled as long as it remains under the
control of the Inspector General. Without independence to control his
casework or his resources, an Ombudsman is one in name only. The
situation became so untenable for Robert Martin that he resigned in
protest when the Agency opted to house the Ombudsman under the
Inspector General's office, change the locks on his doors and remove
all his files without his approval while he was away on EPA-related
travel.
Recent events require that we institute an independent, fully
funded EPA Ombudsman Office to receive, investigate and resolve
complaints. Perhaps the best way is to make the Ombudsman an arm of
Congress, but wherever an Ombudsman is placed, the office must have
control of its resources, staff and cases. The Ombudsman must be able
to communicate with the public and must be able to act free from
interference by outside parties or from within the agency itself.
Wherever an Ombudsman is ultimately placed, it is clear that the Office
of Inspector General is not appropriate.
I sit here next to my Republican colleague from Colorado, having
experienced many of the same problems with the EPA: unresponsiveness,
neglect and lack of substantive public involvement. The WTC is a unique
case in the order of its magnitude and precedent, but not with respect
to the growing need for a mechanism to hold agencies accountable and
ultimately resolve citizens' complaints. And dare I say, the World
Trade Center may not be the only case of its kind should future
terrorist attacks occur.
An independent EPA Ombudsman with the necessary resources and staff
can provide an antidote to the malaise that we all know sometimes
befalls Administrative Agencies. This is nothing new to the United
States or to democracies in general. In fact, establishing independent
ombudsmen is good government. The Federal Government has decades of
experience in establishing strong and independent Ombudsmen. The IRS
and HHS have Ombudsmen to address citizen complaints regarding taxes
and long-term care respectively. Victims of a terrorist attack, and
those living with the threat of hazardous waste, deserve at least the
same protection.
__________
Statement of Nikki L. Tinsley, Inspector General, U.S. Environmental
Protection Agency
Good Morning Chairman Jeffords and Members of the Committee. My
name is Nikki Tinsley and I am the Inspector General of the
Environmental Protection Agency (EPA). I am pleased to speak to the
Committee today about the Office of the Inspector General's
implementation and operation of the Ombudsman function.
I'd like to begin my remarks with a brief history of the EPA
Ombudsman. The Ombudsman function was established by Congress in the
Resource Conservation and Recovery Act amendments of 1984. Although the
statutory authority for the office expired in 1989, and Congress has
not reauthorized it, EPA has continuously maintained the Ombudsman
function in some form for more than 16 years. As originally authorized,
the Ombudsman's mission was to provide information, and investigate
complaints and grievances from the public related to EPA's
administration of certain hazardous and solid waste programs.
In July 2001, the General Accounting Office (GAO) issued a report,
EPA's National and Regional Ombudsmen Do Not Have Sufficient
Independence, GAO-01-813. This report identified areas of weakness in
the operation of the Ombudsman function regarding its independence from
the program office that is subject to review, its impartiality and
freedom from conflict of interest, and its accountability and
reporting. Given that the Ombudsman's role of reviewing Agency actions
is similar to the work we were created to perform, and because we
report to both Congress and the Agency, I believe our office was well
suited to assume the investigatory functions of the Ombudsman's office.
In April of this year, the Ombudsman's Office was transferred to the
OIG.
Congress established the Inspectors General through the Inspector
General Act of 1978 (Act), to serve as an independent, impartial and
accountable source for audits, evaluations and, investigations of the
activities of Federal Departments and Agencies in an effort to prevent
and detect fraud, waste, and abuse, and enhance the economy,
efficiency, and effectiveness of government programs and operations. We
are sometimes known as ``watchdogs'' for our role in alerting the
public and Congress to areas of concern within the Executive branch.
Under the Act, Inspectors General have the authority to demand access
to any Agency record; request information or assistance from Federal,
State or local government agencies; and issue subpoenas. The IG Act
also granted certain authorities unique to OIG's in order to insure our
independence. We select, prioritize and carry out all of our work
assignments independent of EPA oversight. We have separate budget
authority, separate hiring and contracting authority, and independent
reporting responsibilities to Congress. These are some of the key
characteristics that enable us to effectively review Agency programs
and ensures our structural independence.
We perform our work in accordance with established standards and
procedures, including Generally Accepted Government Accounting
Standards, otherwise known as the GAO ``Yellow Book,'' and report our
findings independently and separately to the EPA Administrator and
Congress. The IG Act also provides the OIG broad authorities to receive
complaints and conduct investigations. Whatever capacity our staff may
be serving in, the basic operating principles of the EPA OIG, and all
Federal OIG's for that matter, are to act with independence,
impartiality and accountability. Congress and the public can be assured
that all work done by the OIG, including that of the Ombudsman, will
continue to meet those standards. For the record, I am submitting a
copy of a brief prepared by the U.S. Department of Justice which
outlines the legal authority for the OIG to perform the Ombudsman
function.
Since the early 1980's, we have operated a Hotline to receive
complaints and allegations from the public regarding EPA's programs,
operations, employees and contractors. We receive Hotline complaints
through our toll-free number, correspondence and, beginning recently,
the Internet. We have the sole discretion either to accept a request
for assistance, or decline to act. Such decisions are made based on the
information received, supporting evidence, and an internal evaluation
process. This function is very similar to the function of an Ombudsman,
and over time has provided us with audit, evaluation and investigative
leads.
All complaints received by the OIG may not result in an
investigation. In those instances where our preliminary work produces
sufficient information to warrant a full review, we open a case.
Oftentimes a complaint does not warrant an investigation but rather,
resolution of an issue. If the first responsibility for handling the
issue rests elsewhere in the Agency, we will make a referral. In many
cases, elevation of an issue by the OIG is sufficient to get Agency
action. This is our current operating procedure for all complaints. In
some cases, the OIG will already have ongoing work in an area when a
complaint is received by the Ombudsman; when this occurs the Ombudsman
will consult with the lead staff member on the assignment to expand the
scope of work to include new issues or information. As is the case with
all our work, the highest priority assignments are provided the
necessary financial and human resources to fulfill their objectives.
We operate as one OIG. This means that our work prioritization
involves multiple OIG offices and no single staff member has the
authority to select and prioritize their own caseload independent of
all other needs. If an issue or investigation warrants further work,
the necessary human and financial resources are devoted to the project
until the matter has been brought to its appropriate conclusion.
As part of the transfer, we have expanded the services of the
Ombudsman to include all EPA administered programs, rather than
limiting it to only Superfund and hazardous waste issues. Within the
OIG, the Ombudsman now has the opportunity to utilize the expert
assistance of all OIG staff, which includes scientists, auditors,
attorneys, engineers, and investigators. Ours is a matrix organization.
We assign staff and other resources to projects on a priority basis,
drawing from a large pool of OIG resources.
I'd like to now give you an update on what we have accomplished in
the 10 weeks since we began doing the work of the Ombudsman. Our first
order of business was to get an Acting Ombudsman in place, and to
assess the transferred caseload. This involved the inventory and
organizing of 130 boxes of documents that were transferred from the
National Ombudsman's office in OSWER. This was a rather challenging
undertaking due to the lack of any organized system of records or case
file index. It took us until early June to organize and review the
files and to assess the information and the work that had been done. To
date, we have had eight OIG staff members assigned to the Ombudsman's
caseload, which is more than double the staff that had been assigned in
OSWER.
According to GAO's 2001 report, the prior National Ombudsman opened
34 cases between October 1992 and December 2002, closing 14 of those
cases within five to 25 months, 13 months being average. We are
assessing the remaining 20 cases. Ten of the 20 cases initially appear
to be completed or closed, and we are working to confirm this. The
remaining 10 cases range in age from more than 20 months to 5 years and
appear to be unresolved. These cases include Marjol Battery, Shattuck
Chemical, Bunker Hill/Coeur d'Alene. Further, we are determining the
status of seven additional cases where we have found documents or read
media accounts of the existence of cases. This includes the World Trade
Center, which we have incorporated into an already ongoing OIG
assignment.
We have developed a priority list of cases, and will be working to
conclude these as quickly as possible. We have also begun outreach
efforts in order to both explain how we plan to perform the Ombudsman
function and to collect additional information. We have met with
individual Members of Congress and congressional Committee staff. We
have made contact with citizen groups in several of the communities
where there are open cases, and we have scheduled site visits and
public meetings for Couer d'Alene, Idaho and Tarpon Springs, Florida in
July.
Our primary focus at this point is to work to resolve the already
existing cases. To do this, we are conducting our work using our audit,
evaluation and investigative standards and procedures. At the same time
we are working on developing policies and procedures for handling
future incoming cases. This includes case selection criteria. We have
also met with the Regional Ombudsmen and are working with them to
develop a coordinated approach for addressing the incoming issues at
all levels in a timely and appropriate manner.
I believe the public reporting of the caseload, activities, and
accomplishments of the Ombudsman is a vital and important
responsibility. As an Inspector General I firmly believe that
professional standards of conduct, a transparent review process, and
public accountability strengthens the credibility of the reviewer's
findings. In order to provide accountability and communication with the
public, and Congress, the work of our Ombudsman will meet the same high
standards we have for all our other products. We will publish at least
annually a report summarizing the work of the Ombudsman, including a
status report on the cases opened by the National Ombudsman and
recommendations or findings made to the Agency. We already provide
similar reports semiannually for all our work, and annually for
Superfund program work.
Members of the Committee, I am proud of the track record of the EPA
OIG. I want to assure the public, EPA stakeholders, and Congress that
we will conduct the Ombudsman work with independence and
professionalism. I give you my commitment to be responsive to any
questions or comments you may have as we move forward with this
important work. I welcome your assistance in providing any information
or suggestions as we move forward with our new responsibilities. That
said, I hope that you withhold judgment on our performance until such
time as we have had an opportunity to produce results.
Thank you for the opportunity to participate today. I will respond
to any questions the Committee may have at this time.
______
U.S. District Court for the Middle District of Florida, Tampa Division
Civil No. 8:01CV-2407-T-17MAP
April 8, 2002
Mary Mosley, Plaintiff, v. Christine Todd Whitman, in her official
capacity as Administrator of the U.S. Environmental Protection Agency,
Defendant
DEFENDANT'S REPLY BRIEF
Defendant hereby files this reply in support of her motions to
dismiss and for summary judgment in order to respond to issues raised
by plaintiff for the first time in her response brief.
I. The Decision to Relocate the Ombudsman Functions Does not Violate
the Inspector General Act.
In opposing defendant's motions to dismiss and for summary
judgment, plaintiff contends the proposed relocation of the ombudsman
functions within EPA is a violation of the Inspector General Act of
1978, 5 U.S.C. app.3 Sec. 9 (hereinafter, the ``IG Act.'') Plaintiff's
Memorandum in Opposition to Defendant's Motions to Dismiss and for
Summary Judgment, (hereinafter, ``Pl. Opp. Br.'') at 14. Plaintiffs
complaint fails to raise this as a count, however, and plaintiff's
attempt to expand her case beyond the counts in her complaint and add a
new claim in her response brief should not be allowed.
Moreover, the proposed transfer is not a violation of the IG
Act.\1\ The Office of Inspector General (OIG) at the Environmental
Protection Agency was established in accordance with the IG Act, for
the express purpose of, inter alia, conducting and supervising audits
and investigations relating to EPA's programs and operations, 5 U.S.C.
app. 3, Sec. 2(a)(1), and to provide leadership and coordination and
recommend policies for activities designed to promote economy,
efficiency, and effectiveness in the administration of such programs.
Id. at Sec. 2(2). Pursuant to the act, the Inspector General can
``conduct, supervise, and coordinate audits and investigations relating
to the programs and operations of such establishment.'' 5 U.S.C. app.
3, Sec. 4(a)(1). To carry out these broad responsibilities, the
Inspector General has extensive authority, including authority ``to
make such investigations . . . relating to the administration of the
programs and operations of the . . . [EPA] as are, in the judgment of
the Inspector General, necessary or desirable.'' Id. at Sec. 6(a)(2).
---------------------------------------------------------------------------
\1\ While issues raised for the first time in a reply brief are not
typically considered, see e.g., United States v. Kimmons, 1 F.3d 1144,
1145 (11th Cir. 1993), defendant provides this argument solely because
plaintiff has raised the issue for the first time in her response
brief. This argument is in addition to the arguments defendant raised
in her motions to dismiss and for summary judgment.
---------------------------------------------------------------------------
The Inspector General may also demand access to agency records and
reports; request information or assistance from Federal, state, or
local government agencies or units; issue subpoenas to entities other
than Federal agencies; administer or take oaths; and ``select, appoint
and employ such officers and employees as may be necessary'' to carry
out its responsibilities. Id at Sec. 6(a). Finally, the Act allows
defendant to transfer offices or agencies, or functions, powers, or
duties thereof, as she may determine are properly related to the
functions of the OIG, and would, if so transferred, further the
purposes of the IG Act, except that she cannot transfer program
operating responsibilities under this provision. Id. at Sec. 9(a)(2).
Plaintiff contends the IG Act has been violated because the act
does not specifically name the same ombudsman responsibilities listed
in the long-expired statutory provision establishing the EPA's Office
of the. Ombudsman, and because, according to plaintiff, the ombudsman's
functions are program operating responsibilities. Pl. Opp. Br. at 13-
14. Both of these arguments fail.
The IG Act clearly states that the Inspector General can ``conduct,
supervise, and coordinate audits and investigations relating to the
programs and operations of such establishment.'' 5 U.S.C. app. 3,
Sec. 4(a)(1). One of the three basic areas of inquiry for such audits
is to review program results to determine whether programs or
activities meet the objectives established by Congress or the agency.
S. Rep. No. 95-1071 at *29, reprinted in 1978 U.S.C.C.A.N. 2676, 2703-
2704 (1978). As such, the terms of the statute authorize the Inspector
General to conduct the same function of receiving and investigating
complaints that the long-expired statute creating the Ombudsman office
set forth. Id. Sec. 6917(a)(d).\2\ The November 27, 2001 memorandum
transferring the ombudsman functions notes that defendant and the
Inspector General expect the newly relocated ombudsman function will
address public concerns across the spectrum of EPA programs. Exh. B to
TRO Opp. at 2. Likewise, EPA's OIG maintains a hotline for the public
to use. See Exhs. 1 & 2 attached hereto.
---------------------------------------------------------------------------
\2\ The ombudsman functions have been retained at EPA as a matter
of policy. Exh. B to Defs. TRO Opp. at 1-2.
---------------------------------------------------------------------------
Moreover, the very elements of the ombudsman's functions that
plaintiff contends must be protected are the elements that the IG Act
provides the OIG. Plaintiff avers that the relocation of the
ombudsman's functions will impair the ability of the Ombudsman to
independently investigate and oversee EPA's handling of the Stauffer
Chemical Superfund site. Complaint at 7, 14, 18, 30, 41. As explained
above, OIG has extensive authority to ``conduct, supervise, and
coordinate audits and investigations relating to the programs and
operations'' of EPA, 5 U.S.C. app. 3, Sec. 4(a)(1), and OIG has access
to agency records and reports, and to a wide-range of investigatory
tools, such as subpoenas, to conduct its investigations and audits.
OIG's audit, investigatory, and subpoena powers are ``very broad.''
Winters Ranch Partnership v. Viadero, 123 F.3d 327, 330 (5th Cir.
1997).
Furthermore, OIG has the independence that plaintiff contends is
imperative. Congress created OIG in order to ensure that the body
investigating an agency have the requisite level of independence to
effectively conduct its investigation. S. Rep. 95-1071 at *7, reprinted
in 1978 U.S.C.C.A.N. 2676, 2682 (1978). See also Winters Ranch
Partnership, 123 F.3d at 333 (noting that purpose of the IG Act was to
establish an OIG in each agency ``to effect independent and objective
audits and investigations of the programs and operations of each
agency.''). Moreover, defendant's November 27, 2001 memorandum
transferring the ombudsman's functions noted that the relocation to the
OIG would give the function the independence and impartiality
recommended by a number of Members of Congress. Exh. B to Defs. TRO
Opp. at 1-2. Thus, plaintiff has failed to demonstrate that the OIG
cannot assume the ombudsman's functions under the IG Act.
Plaintiff also contends that the ombudsman's functions are
``central to the operations of the agency'' and therefore, are a
program operating responsibility that cannot be transferred to the OIG.
Pl. Opp. Br. at 14. Plaintiff fails to provide any evidence or
explanation to support her conclusion, and, in any event, her argument
fails because the ombudsman's functions are not a ``program operating
responsibility.'' While the IG Act does not define the term, ``program
operating responsibility,'' courts have equated the term to
``congressionally delegated'' responsibilities, Winters Ranch
Partnership, 123 F.3d at 334; to ``long-term'' regulatory
responsibilities, id. at 334-36; to ``those activities which are
central to an agency's statutory mission,'' United States v. Hunton &
Williams, 952 F. Supp. 843, 850 (D.D.C. 1997); and to ``day-to-day,''
``hands on'' responsibilities for the overall administration of an
agency's programs. Greene v., Sullivan, 731 F.Supp. 835, 836 (E.D.
Tenn. 1990). The United States Court of Appeals for the Eleventh
Circuit found an investigation was not a program operating
responsibility because it was initiated by the Inspector General in
response to an allegation of fraud and abuse, and not as part of a
regulatory compliance audit that would be within the authority of
another office to conduct. Inspector General of the United States
Department of Agriculture v. Glenn, 122 F.3d 1007, 1010 (11th, Cir.
1997).
The ombudsman's functions at EPA are no longer governed by statute,
42 U.S.C. Sec. 6917(d), and have been retained by EPA as a matter of
policy. Exh. B to Defs. TRO Opp. at 1-2. Plaintiff has provided no
evidence suggesting that the ombudsman's functions are routine, long-
term responsibilities statutorily provided to a particular office
within EPA, and central to EPA's mission. Moreover, the rationale
behind prohibiting the transfer of program operating responsibilities
is to preserve the function of the OIG as an independent and objective
inspector of the agency's operations. Winters Ranch Partnership, 123
F.3d at 334. As explained above, defendant has decided to move the
ombudsman's functions to allow for, among other things, the necessary
independence of the ombudsman functions. Nov. 27, 2001 Memo, Defs. Exh.
B to TRO Opp. at 1-2.\3\
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\3\ The legislative history to the IG Act provides an example of an
EPA investigation that would clearly fall within the IG's authority.
Senate Report No. 95-1071 notes that while the OIG would not likely
review an allegation that a specific sewage treatment plant was not
operating according to technical specifications, the OIG would properly
review an allegation that EPA had approved plans for a faulty sewage
treatment system because an agency official was improperly influenced
in his decision. S. Rep. No. 95-1071 at *28, reprinted in 1978
U.S.C.C.A.N. 2676, 2703 (1978).
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Finally, the fact that the ombudsman's function was previously
located within a program office, the Office of Solid Waste and
Emergency Response, does not mean that it is a ``program operating
responsibility.'' The IG Act allows defendant to transfer ``offices or
agencies, or functions, powers, or duties thereof, ``as she may
determine are properly related to the functions of the OIG, and, if so
transferred, would further the purposes of the OIG Act. 5 U.S.C. app.,
Sec. 9(a)(2). To conclude that a function is a ``program operating
responsibility'' simply because it is found within a program office
within an agency would nullify the provision allowing defendant to, in
her discretion, transfer offices or agencies, or functions thereof, to
the OIG. 5 U.S.C. App. 3, Sec. 9(a)(2).
Plaintiff cites Truckers United For Safety v. Mead, 251 F.3d 183,
186 (D.C. Cir. 2001), which is distinguishable here. In Mead, the court
found that the OIG had improperly ``lent'' its search and seizure
powers to a routine agency investigation that, by statute, was charged
to another office to conduct. 251 F.3d at 186-87, 189. The Mead court
noted that OIG's investigation was not an audit of agency enforcement
procedures or policies, or an investigation relating to abuse or
mismanagement at the agency. Id. at 189. Here, in contrast, the
Inspector General is not lending her authority to an investigation
which is under the statutory authority of another office, or which is
being conducted by another office within EPA, such as by OSWER.
Moreover, EPA has maintained an ombudsman function not pursuant to
statute or as required by Congress, but only as a matter of agency
policy. Ex. B to Defs. TRO Opp. at 1-2. Defendant has decided to move
the ombudsman's functions to OIG, pursuant to her authority under 5
U.S.C. app. 3, Sec. 9(a)(2). The proposed relocation is not a violation
of Sec. 9(a)(2) of the IG Act.\4\
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\4\ Plaintiff states that the proposed relocation will eliminate
the Office of the Ombudsman. Pl. Opp. Br. at 14, n.6. While the office
itself will not be in existence, the November 27, 2001 Memorandum makes
clear that the ombudsman's functions are being transferred to OIG.
Defs. Exh. B to Defs. TRO Opp. Thus, as this Court recognized in
denying plaintiff's motions for a TRO and preliminary injunction, Dec.
28, 2001 Order at 7, the ombudsman's functions will continue at EPA.
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Plaintiffs in Two Other Cases Raising Identical Causes of Action Have
Not Filed Motions to Consolidate
Plaintiff also raises, for the first time, the issue of ``a
transfer and consolidation pursuant to 28 U.S.C. Sec. 1407.'' Pl. Opp.
Br. at 3. Defendant will respond to any motions to transfer,
consolidate, or any other motion, when plaintiff files and serves said
motion. Defendant notes, however, that she has verbally advised
plaintiff that she is opposed to a voluntary dismissal, without
prejudice, by plaintiff of the action in this Court.
Moreover, plaintiff offers no evidence in support of her assertion
that plaintiffs in several other districts in which the Ombudsman is
involved on behalf of the community are intervening in [Martin v.
Whitman, No. 1:02CV00055 (RWR) (D.D.C.)] rather than continuing with
their suits where they were originally filed suit.'' Pl. Opp. Br. at 3.
On the contrary, there are currently two other cases pending in Federal
district court which raise counts virtually identical to this action.
Throop Borough v. Whitman, No. 3:CV01-2461 (James M. Munley) (M.D.
Pa.); city of Smelterville v. Whitman, Cv. No. 020005-N-EJL (D. Idaho).
Defendant has moved to dismiss the Throop Borough case. Exh. 2 hereto.
Defendant's response to the amended complaint in city of Smelterville
is due April 16, 2002. Order attached hereto as Exh. 3.\5\
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\5\ Plaintiff makes several references to allegations allegedly
raised in connection with the Martin case. Pl. Opp. Br. at 3, n. 1. As
noted in defendant's brief in support of her motions to dismiss and for
summary judgment, the Martin case involves a claim that the relocation
violates the Ombudsman's First Amendment rights. Defs. Memo. at 5-6 and
Exh. 3 thereto. Except for the allegation regarding the removal of Hugh
Kaufman from Ombudsman functions, plaintiff has not raised the
allegations in footnote 1 of her response brief in her complaint, and
she does not appear to rely on them in support of her case.
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III. Plaintiff Has Not Asserted A Claim For Retaliatory Discharge
Finally, plaintiff raises for the first time a contention that
there is a material issue of fact as to whether the proposed relocation
of the Ombudsman functions is a ``retaliatory discharge of the National
Ombudsman.'' Pl. Opp. Br. at 2. While defendant disagrees that there
are any material issues of fact here, this particular statement is
objectionable because, as with the claim that the IG Act has been
violated, plaintiff has not brought a claim here that the proposed
relocation is a ``retaliatory discharge.'' Again, plaintiff is using
her opposition brief to add new claims to her case, without moving for
leave to amend her complaint.\6\
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\6\ It is doubtful that plaintiff would have standing to bring a
claim for retaliatory discharge, as she is not an EPA employee affected
by the proposed transfer of the Ombudsman functions.
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CONCLUSION
For the reasons expressed above, as well as in defendant's
memorandum supporting her motions to dismiss and for summary judgment,
defendant's motions to dismiss and for summary judgment should be
granted.
Respectfully submitted,
Mac Cauley,
U.S. Attorney.
______
Responses by Nikki Tinsley to Additional Questions from Senator
Jeffords
Question 1. Ms. Tinsley, please address the concerns voiced by Mr.
Wood about the ombudsman's ability to function in a manner consistent
with relevant professional standards for ombudsmen.
Response. As Mr. Wood noted in his testimony, there are no Federal
standards specific to the operation of the ombudsmen offices, however
several professional organizations provide standards relevant to
ombudsmen. He stated that the standards incorporate core principles of:
independence, impartiality and confidentiality. We believe those
standards are met with the Ombudsman operating within the Office of the
Inspector General (OIG).
The OIG, through the Inspector General Act (IG Act), has specific
authorities designed to insure our independence. We select, prioritize
and carry out all of our work assignments independent of EPA oversight.
We have separate budget authority, separate hiring and contracting
authority, and independent reporting responsibilities to Congress. We
do not have program responsibilities, therefore our review of EPA's
program management and delivery can be conducted with impartiality.
Finally, we adhere to appropriate professional standards when we
conduct our audits, investigations and evaluations. This includes
standards of conduct, freedom from personal impairments, and internal
controls, all of which support the principles of independence,
impartiality and confidentiality.
Question 2. When do you anticipate publicly posting the position of
the ombudsman?
Response. We have not established a specific timeframe for hiring a
permanent ombudsman. Our immediate focus has been, and will continue to
be, moving forward on the existing caseload. We expect Ms. Boyer to
continue in her capacity as Acting Ombudsman until a permanent
ombudsman is hired.
Question 3. How will the reorganization of the ombudsman function
and the location of the ombudsman within the OIG-change what the OIG
does?
Response. The transfer of the ombudsman function to the OIG does
not fundamentally change what we do. We will continue to conduct
audits, investigations and evaluations of EPA's programs, and
performance, and EPA contractors. We will still operate under the
authorities provided under the IG Act. The only change within our
organization has been the consolidation of our congressional and public
affairs activities into a new Office of Congressional and Public
Liaison which includes the ombudsman.
Question 4. Ms. Tinsley, as the Inspector General, do you review
all written reports prepared by the Office of Inspector General? Do you
plan to review written reports prepared by the ombudsman? If so, does
that not present a possible conflict if the ombudsman's report could be
construed to reflect unfavorably on prior work performed by the OIG?
Response. Yes, I review written reports issued by our office. This
is typically done after a report has been issued. I plan on engaging in
a similar process with the reports of the ombudsman. By law, the OIG
does not have any program management or program delivery
responsibilities, so there is no possibility of a conflict of interest
with a report of the ombudsman. The function of the EPA Ombudsman is to
investigate citizen complaints about EPA's performance, not the work of
the OIG.
Question 5. Ms. Tinsley, how would you handle a situation in which
the ombudsman is asked to investigate a matter on which the OIG had
previously reported? Would you recuse yourself from reviewing the
ombudsman's report on this matter?
Response. Any decisions on recusal would be made on a case by case
basis.
Question 6. According to the GAO testimony, having the ombudsman
located within the Office of Inspector General could augment the level
of resources devoted to the ombudsman function, since the ombudsman
would be able to draw on staff from other areas of the OIG. However,
couldn't this also work in reverse? What guarantee do we have that the
ombudsman staff will not be diverted to work on regular OIG audits and
investigations, particularly during periods when workload levels are
high?
Response. The OIG work planning process is designed to ensure that
we staff the highest priority assignments, whether they are audits,
investigations, or evaluations. As a practical matter, our auditors,
evaluators, investigators, engineers, attorneys, and scientists are
assigned to projects and cases, not offices. This provides the added
flexibility to devote the necessary resources to the priority
assignments. With more than 350 OIG employees, we fully expect to be
able to staff high priority ombudsman cases.
Question 7. In its July 2001 report, GAO concluded that the other
duties assigned to the regional ombudsmen hampered their independence.
Has OIG defined the role of the regional ombudsmen to avoid potential
conflicts of interest?
Response. The Regional Superfund Ombudsmen function was not
transferred to the OIG. At this time, they will continue to operate
under the Regional offices. However, we have met with the regional
ombudsmen, established lines of communication for appropriate
coordination with them. With the Agency, we have jointly issued
preliminary guidance on the process for handling information requests,
and complaints that are made directly to the regional ombudsmen
offices. Complaints of inappropriate action by Agency officials or
other related parties (e.g. state and PRP leads) will be elevated to
the OIG ombudsman for an independent and impartial review.
Overall, we have found that the regional ombudsmen provide a
valuable service by facilitating critical exchanges concerning process
and site specific information which diffuses confrontational situations
and precludes more serious and elevated problems. The OIG ombudsman
will participate with the regional ombudsmen in monthly meetings and
continue coordination efforts to ensure appropriate level of review and
information exchange.
Question 8. OIG has announced plans to expand the scope of the
ombudsman's function to cover all agency programs. Will this expand the
budgetary needs of the office?
Response. We expect ombudsman function will necessitate an increase
in the overall budget for the Office of the Inspector General.
Question 9. Please update the Committee on the progress you have
made on the cases that Mr. Martin's office was working on prior to its
transfer to the IG's office.
Response. We have inventoried and organized of 130 boxes of
documents that were transferred from the National Ombudsman's office.
This was a rather challenging undertaking due to the lack of any
organized system of records or case file index. We have been assessing
approximately 20 open cases. Ten of the 20 cases initially appear to be
completed or closed, and we are working to confirm this. The remaining
10 cases range in age from more than 20 months to 5 years and appear to
be unresolved. Further, we are determining the status of seven
additional cases where we have found documents or read media accounts
of the existence of cases.
We have developed a priority list of cases and assigned team leads
for the cases. We have also begun outreach efforts in order to both
explain how we plan to perform the ombudsman function and to collect
additional information. We have made contact with citizen groups in
several of the communities where there are open cases, and we have
conducted site visits and participated in public meetings in Spokane,
Washington, and Northern Idaho, and Tarpon Springs, Florida.
______
Responses by Nikki Tinsley to Additional Questions from Senator Crapo
Question 1. Could you specify the time line or date at which the
Office of the Inspector General intends to officially publish or
announce the final management and operational responsibilities for the
National Ombudsman function?
Response. We are in the process of finalizing the function
statement, position description and case selection criteria for the
ombudsman. We expect to have the publicly available in September.
Question 2a. For what reason does Ms. Boyer remain only in an
``Acting'' capacity as the National Ombudsman?
Response. Until a permanent ombudsman is competitively selected
under the Office of Personnel Management procedures for filling a
vacancy under civil service procedures, an individual serving as the
OIG ombudsman must do so in an acting capacity.
Question 2b. When and how do you intend to establish a permanent
National Ombudsman?
Response. We have not established a timeframe for permanently
hiring an ombudsman. When we fill the vacancy on a permanent basis, we
do so in accordance with established requirements for hiring in the
Federal Government.
__________
Statement of David G. Wood, Director, Natural Resources and Environment
Mr. Chairman and members of the committee, I am pleased to be here
today to discuss our work relating to the national hazardous waste
ombudsman function at the Environmental Protection Agency (EPA). EPA's
hazardous waste ombudsman was first established within the Office of
Solid Waste and Emergency Response as a result of the 1984 amendments
to the Resource Conservation and Recovery Act.\1\ Recognizing that the
ombudsman provides a valuable service to the public, EPA retained the
ombudsman function as a matter of policy after its legislative
authorization expired in 1988. Over time, EPA expanded the national
ombudsman's jurisdiction to include Superfund\2\ and other hazardous
waste programs managed by the Office of Solid Waste and Emergency
Response and, by March 1996, EPA had designated ombudsmen in each of
its 10 regional offices. While the national ombudsman's activities
ranged from providing information to investigating the merits of
complaints, in recent years, the ombudsman played an increasingly
prominent role through his investigations of citizen complaints
referred by Members of Congress. Legislation now pending before the
Congress would reauthorize an office of the ombudsman within EPA.\3\
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\1\ The Resource Conservation and Recovery Act governs the
management of solid and hazardous waste.
\2\ The Superfund program was established under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 to
clean up highly contaminated hazardous waste sites.
\3\ See S. 606 and H.R. 1431, The Ombudsman Reauthorization Act of
2001.
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In November 2001, the EPA Administrator announced that the
ombudsman function would be reorganized, effective in January 2002.\4\
Specifically, the agency announced that the national ombudsman would be
relocated from the Office of Solid Waste and Emergency Response to the
Office of Inspector General (OIG) and would address concerns across the
spectrum of EPA programs, not just hazardous waste programs. The agency
also retained the ombudsmen located in its regional offices. In
response to a request letter from Representative Diana DeGette raising
concerns about placing the national ombudsman within EPA's OIG, we have
recently initiated work to examine various issues related to the
reorganization.
---------------------------------------------------------------------------
\4\ The transfer of the ombudsman function to EPA's Office of
Inspector General actually took place on April 13, 2002, following the
dismissal by a Federal district court of a legal challenge to the
reorganization.
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<bullet> My testimony today, which is based on our 2001 report on
EPA's ombudsman\5\ and on the work now under way,
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\5\ U.S. General Accounting Office, Hazardous Waste: EPA's National
and Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813
(Washington, D.C.; July 27, 2001).
---------------------------------------------------------------------------
<bullet> describes the professional standards for independence and
other key factors relevant to ombudsmen, including those located within
Federal agencies; and
<bullet> provides our preliminary observations on issues raised by
the reorganization of EPA's ombudsman function.
For our 2001 report, we examined relevant standards of practice,
including those published by the American Bar Association (ABA), The
Ombudsman Association, and the U.S. Ombudsman Association. We also
looked at four Federal agencies whose ombudsmen deal with inquiries
from the public: the Agency for Toxic Substances and Disease Registry
(an agency of the Department of Health and Human Services), the Federal
Deposit Insurance Corporation, the Food and Drug Administration, and
the Internal Revenue Service. In preparing this testimony, we met with,
and obtained information from, key EPA officials involved in the
reorganization of the agency's ombudsman function. However, because the
agency has not yet developed detailed operating policies and procedures
or an official description of the national ombudsman position within
the OIG, and because we have only recently initiated work related to
the reorganization, our observations are preliminary.
In summary:
<bullet> Although there are no Federal requirements or standards
specific to the operation of ombudsman offices, several professional
organizations have published standards of practice relevant to
ombudsmen who deal with inquiries from the public. These standards
incorporate the core principles of independence, impartiality, and
confidentiality. For example, an effective ombudsman must have both
actual and apparent independence from any person who may be the subject
of a complaint or inquiry. According to ABA guidelines, key indicators
of independence include a budget funded at a level sufficient to carry
out the ombudsman's responsibilities; the ability to spend funds
independent of any approving authority; and the power to appoint,
supervise, and remove staff. The Ombudsman Association's standards of
practice define independence as functioning independent of line
management, and advocate that the ombudsman report to the highest
authority in the organization. Impartiality requires ombudsmen to
conduct inquiries and investigations in a manner free from initial bias
and conflicts of interest. Confidentiality requires, with some
exceptions, that ombudsmen not disclose, and not be required to
disclose, any information provided in confidence. While Federal
agencies face some legal and practical constraints in implementing some
aspects of these standards, ombudsmen at the Federal agencies we
reviewed for our 2001 report reflected aspects of the standards. For
example, at the Federal Deposit Insurance Corporation, the Food and
Drug Administration, and the Internal Revenue Service, the ombudsman's
office had its own budget and reported directly to the head of the
agency.
<bullet> If EPA intends to have an ombudsman function that is
consistent with the way the position is typically defined in the
ombudsman community, placing the national ombudsman within the OIG does
not achieve that objective. Specifically, the role of an ombudsman
typically includes program operating responsibilities, such as helping
to informally resolve program-related issues and mediating
disagreements between the agency and the public. Including these
responsibilities in the national ombudsman's role within the OIG would
likely conflict with the Inspector General Act, as amended, which
prohibits the transfer of program operating responsibilities to the
Inspector General; yet, omitting these responsibilities would result in
establishing an ``ombudsman'' that is not fully consistent with the
function as defined within the ombudsman community. Further, while
EPA's reorganization removes the national ombudsman from the Office of
Solid Waste and Emergency Response whose programs the ombudsman is
charged with investigating-it may not result in a degree of structural
or functional independence that is consistent with professional
standards for ombudsmen for several reasons.
<bullet> The national ombudsman, as the position is currently
envisioned, still will not be able to exercise independent control over
the budget and staff resources needed to implement the function.
According to EPA, authority for budget and staffing for the national
ombudsman function will rest with the Assistant Inspector General for
Congressional and Public Liaison.
<bullet> Prior to the reorganization, the national ombudsman could
independently determine which cases to pursue; however, according to
EPA, the Inspector General has the overall responsibility for the work
performed by the Office, and no single staff member--including the
national ombudsman--has the authority to select and prioritize his or
her own caseload independent of all other needs.
<bullet> In addition, the reorganization does not appear to address
concerns we raised in our 2001 report about the independence of the
regional ombudsmen, whose position is generally seen as a collateral
duty within EPA. They will continue to have a dual role in fulfilling
some ombudsman responsibilities while also serving in line management
positions, primarily within the Superfund program.
Finally, placing the ombudsman in the OIG could affect the
activities of the Inspector General; for example, the OIG could no
longer independently audit or investigate the ombudsman, as the OIG can
at other Federal agencies where the ombudsman function and the OIG are
separate entities.
RELEVANT PROFESSIONAL STANDARDS FOR OMBUDSMEN
Through the impartial and independent investigation of citizens'
complaints, Federal ombudsmen help agencies be more. responsive to the
public, including people who believe that their concerns have not been
dealt with fully or fairly through normal channels. Ombudsmen may
recommend ways to resolve individual complaints or more systemic
problems, and may help to informally resolve disagreements between the
agency and the public.
While there are no Federal requirements or standards specific to
the operation of Federal ombudsman offices,\6\ the Administrative
Conference of the United States recommended in 1990 that the President
and the Congress support Federal agency initiatives to create and fund
an external ombudsman in agencies with significant interaction with the
public.\7\ In addition, several professional organizations have
published relevant standards of practice for ombudsmen. Both the
recommendations of the Administrative Conference of the United States
and the standards of practice adopted by various ombudsman associations
incorporate the core principles of independence, impartiality
(neutrality), and confidentiality. For example, the ABA's standards\8\
define these characteristics as follows:
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\6\ The Federal Interagency Alternative Dispute Resolution Working
Group will be developing guidance on standards of practice for Federal
ombudsmen, as recommended in a GAO report entitled, Human Capital: The
Role of Ombudsmen in Dispute Resolution, GAO-01-466 (Washington, D.C.;
Apr. 13, 2001).
\7\ The Administrative Conference of the United States was an
independent advisory agency in the executive branch that issued
recommendations and statements on the improvement of the Federal
administrative process. The agency was terminated by the Treasury,
Postal Service, and General Government Appropriations Act for fiscal
year 1996.
\8\ To help develop the standards, ABA's Sections of Administrative
Law and Regulatory Practice and Dispute Resolution appointed a steering
committee, which included representatives from several ombudsman
associations: the Coalition of Federal Ombudsmen, The Ombudsman
Association, the U.S. Ombudsman Association, and the University and
College Ombuds Association.
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<bullet> Independence--An ombudsman must be and appear to be free
from interference in the legitimate performance of duties and
independent from control, limitation, or penalty by an officer of the
appointing entity or a person who may be the subject of a complaint or
inquiry.
<bullet> Impartiality--An ombudsman must conduct inquiries and
investigations in an impartial manner, free from initial bias and
conflicts of interest.
<bullet> Confidentiality--An ombudsman must not disclose and must
not be required to disclose any information provided in confidence,
except to address an imminent risk of serious harm. Records pertaining
to a complaint, inquiry, or investigation must be confidential and not
subject to disclosure outside the ombudsman's office.
Relevant professional standards contain a variety of criteria for
assessing an ombudsman's independence, but in most instances, the
underlying theme is that an ombudsman should have both actual and
apparent independence from persons who may be the subject of a
complaint or inquiry. According to ABA guidelines, for example, a key
indicator of independence is whether anyone subject to the ombudsman's
jurisdiction can (1) control or limit the ombudsman's performance of
assigned duties, (2) eliminate the office, (3) remove the ombudsman for
other than cause, or (4) reduce the office's budget or resources for
retaliatory purposes. Other factors identified in the ABA guidelines on
independence include a budget funded at a level sufficient to carry out
the ombudsman's responsibilities; the ability to spend funds
independent of any approving authority; and the power to appoint,
supervise, and remove staff. The Ombudsman Association's standards of
practice define independence as functioning independent of line
management; they advocate that the ombudsman report to the highest
authority in the organization.
According to the ABA's recommended standards, ``the ombudsman's
structural independence is the foundation upon which the ombudsman's
impartiality is built.'' One aspect of the core principle of
impartiality is fairness. According to an article published by the U.S.
Ombudsman Association on the essential characteristics of an ombudsman,
an ombudsman should provide any agency or person being criticized an
opportunity to (1) know the nature of the criticism before it is made
public and (2) provide a written response that will be published in
whole or in summary in the ombudsman's final report.\9\
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\9\ Gottehrer, Dean M. and Hostina, Michael, ``Essential
Characteristics of a Classical Ombudsman'' (U.S. Ombudsman Association,
1998), http://www.usombudsman.org/References/Essential.pdf, (downloaded
June 19, 2001).
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In addition to the core principles, some associations also stress
the need for accountability and a credible review process.
Accountability is generally defined in terms of the publication of
periodic reports that summarize the ombudsman's findings and
activities. Having a credible review process generally entails having
the authority and the means, such as access to agency officials and
records, to conduct an effective investigation. The ABA recommends that
an ombudsman issue and publish periodic reports summarizing the
findings and activities of the office to ensure its accountability to
the public. Similarly, recommendations by the Administrative Conference
of the United States regarding Federal ombudsmen state that they should
be required to submit periodic reports summarizing their activities,
recommendations, and the relevant agency's responses.
Federal agencies face legal and practical constraints in
implementing some aspects of these standards because the standards were
not designed primarily with Federal agency ombudsmen in mind. However,
ombudsmen at the Federal agencies we reviewed for our 2001 report
reflected aspects of the standards. We examined the ombudsman function
at four Federal agencies in addition to EPA and found that three of
them--the Federal Deposit Insurance Corporation, the Food and Drug
Administration, and the Internal Revenue Service--had an independent
office of the ombudsman that reported to the highest level in the
agency, thus giving the ombudsmen structural independence.\10\ In
addition, the ombudsmen at these three agencies had functional
independence, including the authority to hire, supervise, discipline,
and terminate their staff, consistent with the authority granted to
other offices within their agencies. They also had control over their
budget resources. The exception was the ombudsman at the Agency for
Toxic Substances and Disease Registry, who did not have a separate
office with staff or a separate budget. This ombudsman reported to the
Assistant Administrator of the agency instead of the agency head.
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\10\ For example, the ombudsmen from the Food and Drug
Administration and the Internal Revenue Service each reported to the
Office of the Commissioner in their respective agencies.
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ISSUES RAISED BY EPA'S REORGANIZATION OF THE OMBUDSMAN FUNCTION
In our July 2001 report, we recommended, among other things, that
EPA modify its organizational structure so that the function would be
located outside of the Office of Solid Waste and Emergency Response,
whose activities the national ombudsman was charged with reviewing. EPA
addresses this recommendation through its placement of the national
ombudsman within the OIG, where the national ombudsman will report to a
newly created position of Assistant Inspector General for Congressional
and Public Liaison. OIG officials also told us that locating the
national ombudsman function within the OIG offers the prospect of
additional resources and enhanced investigative capability. According
to the officials, the national ombudsman will likely have a small
permanent staff but will also be able to access OIG staff members with
expertise in specific subject matters, such as hazardous waste or water
pollution, on an as-needed basis. Further, OIG officials anticipate
that the ombudsman will adopt many of the office's existing
recordkeeping and reporting practices, which could help address the
concerns we noted in our report about accountability and fairness to
the parties subject to an ombudsman investigation.
Despite these aspects of EPA's reorganization, several issues merit
further consideration. First and foremost is the question of intent in
establishing an ombudsman function. The term ``ombudsman,'' as defined
within the ombudsman community, carries with it certain expectations.
The role of an ombudsman typically includes program operating
responsibilities, such as helping to informally resolve program-related
issues and mediating disagreements between the agency and the public.
Assigning these responsibilities to an office within the OIG would
conflict with statutory restrictions on the Inspector General's
activities. Specifically, the Inspector General Act, as amended,
prohibits an agency from transferring any function, power, or duty
involving program responsibilities to its OIG.\11\ However, if EPA
omits these responsibilities from the position within the OIG, then it
will not have established an ``ombudsman'' as the function is defined
within the ombudsman community. In our April 2001 report, we noted that
some Federal experts in dispute resolution were concerned that among
the growing number of Federal ombudsman offices there are some
individuals or activities described as ``ombuds'' or ``ombuds offices''
that do not generally conform to the standards of practice for
ombudsmen.
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\11\ See 5 U.S.C. Appx. 3 Sec. 9(a)(2).
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A related issue is that ombudsmen generally serve as a key focal
point for interaction between the government, or a particular
government agency, and the general public. By placing the national
ombudsman function within its OIG, EPA appears to be altering the
relationship between the function and the individuals that make
inquiries or complaints. Ombudsmen typically see their role as being
responsive to the public, without being an advocate. However, EPA's
reorganization signals a subtle change in emphasis: OIG officials see
the ombudsman function as a source of information regarding the types
of issues that the OIG should be investigating. Similarly, rather than
issue reports to complainants, OIG officials expect that the national
ombudsman's reports will be addressed to the EPA Administrator,
consistent with the reporting procedures for other OIG offices. The
officials told us that their procedures for the national ombudsman
function, which are still being developed, could provide for sending a
copy of the final report or a summary of the investigation to the
original complainant along with a separate cover letter when the report
is issued to the Administrator.
Based on the preliminary information available from EPA, the
reorganization raises other issues regarding the consistency of the
agency's ombudsman function with relevant professional standards. For
example, under EPA's reorganization, the national ombudsman will not be
able to exercise independent control over budget and staff resources,
even within the general constraints that are faced by Federal agencies.
According to OIG officials, the national ombudsman will have input into
the hiring, assignment, and supervision of staff, but overall authority
for staff resources and the budget allocation rests with the Assistant
Inspector General for Congressional and Public Liaison. OIG officials
pointed out that the issue our July 2001 report raised about control
over budget and staff resources was closely linked to the ombudsman's
placement within the Office of Solid Waste and Emergency Response. The
officials believe that once the national ombudsman function was
relocated to the OIG, the inability to control resources became much
less significant as an obstacle to operational independence. They
maintain that although the ombudsman is not an independent entity
within the OIG, the position is independent by virtue of the OIG's
independence.
Despite the OIG's argument, we note that the national ombudsman
will also lack authority to independently select and prioritize cases
that warrant investigation. According to EPA, the Inspector General has
the overall responsibility for the work performed by the OIG, and no
single staff member--including the ombudsman--has the authority to
select and prioritize his or her own caseload independent of all other
needs. Decisions on whether complaints warrant a more detailed review
will be made by the Assistant Inspector General for Congressional and
Public Liaison in consultation with the national ombudsman and staff.
EPA officials are currently reviewing the case files obtained from the
former ombudsman, in part to determine the anticipated workload and an
appropriate allocation of resources. According to OIG officials, the
national ombudsman will have access to other OIG resources as needed,
but EPA has not yet defined how decisions will be made regarding the
assignment of these resources. Under the ABA guidelines, one measure of
independence is a budget funded at a level sufficient to carry out the
ombudsman's responsibilities. However, if both the ombudsman's budget
and workload are outside his or her control, then the ombudsman would
be unable to assure that the resources for implementing the function
are adequate. Ombudsmen at other Federal agencies must live within a
budget and are subject to the same spending constraints as other
offices within their agencies, but they can set their own priorities
and decide how their funds will be spent.
EPA has also not yet fully defined the role of its regional
ombudsmen or the nature of their relationship with the national
ombudsman in the OIG. EPA officials told us that the relationship
between the national and regional ombudsmen is a ``work in progress''
and that the OIG will be developing procedures for when and how
interactions will occur. Depending on how EPA ultimately defines the
role of its regional ombudsmen, their continued lack of independence
could remain an issue. In our July 2001 report, we concluded that the
other duties assigned to the regional ombudsmen--primarily line
management positions within the Superfund program--hamper their
independence. Among other things, we cited guidance from The Ombudsman
Association, which states that an ombudsman should serve ``no
additional role within an organization'' because holding another
position would compromise the ombudsman's neutrality. According to our
discussions with officials from the Office of Solid Waste and Emergency
Response and the OIG, the investigative aspects of the ombudsman
function will be assigned to the OIG, but it appears that the regional
ombudsmen will respond to inquiries and have a role in informally
resolving issues between the agency and the public before they escalate
into complaints about how EPA operates. For the time being, EPA
officials expect the regional ombudsmen to retain their line management
positions.\12\
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\12\ EPA officials told us that they are piloting a new approach in
three regional offices in which the ombudsmen will be increasing their
level of involvement in the ombudsman role, although the individuals
will continue to have other responsibilities.
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Finally, including the national ombudsman function within the
Office of the Inspector General raises concerns about the effect on the
OIG, even if EPA defines the ombudsman's role in a way that avoids
conflict with the Inspector General Act. By having the ombudsman
function as a part of the OIG, the Inspector General could no longer
independently audit and investigate that function, as is the case at
other Federal agencies where the ombudsman function and the OIG are
separate entities. As we noted in a June 2001 report on certain
activities of the OIG at the Department of Housing and Urban
Development, under applicable government auditing standards the OIG
cannot independently and impartially audit and investigate activities
it is directly involved in.\13\
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\13\ U.S. General Accounting Office, HUD Inspector General. Actions
Needed to Strengthen Management and Oversight of Operation Safe Home,
GAO-01-794 (Washington, D.C.: June 29, 2001)
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A related issue concerns situations in which the national ombudsman
receives an inquiry or complaint about a matter that has already been
investigated by the OIG. For example, OIG reports are typically
transmitted to the Administrator after a review by the Inspector
General. A process that requires the Inspector General to review an
ombudsman prepared report that is critical of, or could be construed as
reflecting negatively on, previous OIG work could pose a conflict for
the Inspector General. OIG officials are currently working on detailed
procedures for the national ombudsman function, including criteria for
opening, prioritizing, and closing cases, and will have to address this
issue as part of their effort.
In conclusion, Mr. Chairman, we believe that several issues need to
be considered in EPA's reorganization of its ombudsman function. The
first is perhaps the most fundamental--that is, the need to clarify the
intent. We look forward to working with members of the Committee as you
consider the best way of resolving these issues.
This concludes my prepared statement. I would be happy to respond
to any questions that you or other Members of the Committee may have at
this time.
__________
Statement of Robert J. Martin, Former EPA National Ombudsman
Thank you Mr. Chairman and distinguished members of the committee
for the opportunity to appear and testify before you in connection with
S. 606, the pending Ombudsman reauthorization Act of 2002. I understand
the focus of the hearing is to make inquiry regarding the actions of
the Environmental Protection Agency and the EPA Office of the Inspector
General impacting the Ombudsman and to offer suggestions relating to
the establishment of a permanent Ombudsman institution for the
environment. As the former National Ombudsman for Hazardous and Solid
Waste at the EPA for nearly 10 years, I trust my remarks on the
foregoing matters will prove useful to the Committee as you deliberate
on the nature of this vital institution.
Moreover, it is my hope that this testimony and the statements from
communities will serve to tell a story. It is a compelling story that
begins and ends with the American people in many communities who
continue to face the most difficult of circumstances involving harm to
their health and financial well being from hazardous waste and the
actions or inactions of the EPA regarding the management of that waste.
The presence of an independent National Ombudsman function at the EPA
has been a significant chapter in that story, empowering American
communities from New York City to Coeur D'Alene, Idaho in the struggle
to keep hope and truth alive while seeking to make changes necessary to
protect human health and the environment or to provide help with
resulting financial harm.
A new and disturbing chapter emerged in the story, however, when
EPA Administrator Whitman dissolved the independent National Ombudsman
function. Over and against my objections and the protests of many
American communities as well as the pleas of the Congress,
Administrator Whitman implemented her decision on April 12, 2002 to end
the independent EPA Ombudsman by having the EPA Office of Inspector
General take control of the Ombudsman function. Within days, my
position description as Ombudsman was eliminated, the locks were
changed on the doors and files were removed affecting dozens of cases
while I was on official travel. American communities who had come to
rely upon an independent EPA Ombudsman function have suffered a great
loss.
They have lost a place to be listened to when no one else at the
EPA would listen to their cares and needs. They have lost a place of
refuge when they were insulted in their own neighborhoods by their own
government. They have lost a meaningful voice of advocacy within the
EPA bureaucracy for the truth of their own experiences. They have lost
a mediating influence to secure desperately needed changes within the
EPA when the government made a decision that harmed their neighborhoods
or would not make a decision that would save their neighborhoods. They
sustained all these losses when the independent EPA Ombudsman function
was eliminated by Administrator Whitman.
I resigned on April 22, 2002 under circumstances tantamount to a
constructive dismissal as it became clear that the independent
Ombudsman function would be absorbed and eliminated by the EPA Office
of Inspector General. An independent EPA Ombudsman cannot exist within
the EPA Office of Inspector General both as a practical and legal
matter. To remain in EPA under such circumstances would have been to
cooperate in a lie and would have compromised the relationship of trust
I had developed with many American communities. I offer the following
today: (1) a chronology to help explain how the independent National
Ombudsman function evolved; (2) a discussion of why an independent
National Ombudsman function cannot exist with the EPA Office of
Inspector General and (3) a vision of a congressionally established
National Ombudsman for the Environment.
CHRONOLOGY
<bullet> On November 24, 1986, the United States Environmental
Protection Agency formally established the Office of Ombudsman under
the Hazardous and Solid Waste Amendments of 1984 (HSWA) through
publication in the Federal Register. 51 FR 42297 (11/24/86). ``It is
the function of the Office of Ombudsman to receive individual
complaints, grievances and problems submitted by any person with
respect to any program or requirement under the Resource Conservation
and Recovery Act (RCRA). The objective of the RCRA Ombudsman is to
ensure that the general public is provided assistance with complaints
or problems.'' 51 FR 42297 (11/24/86). The Federal Register notice set
forth procedures for submitting complaints to obtain the assistance of
the National Ombudsman.
<bullet> Following sunset of the congressional authorization for
the National Ombudsman in 1989, the EPA broadened the jurisdiction of
the National Ombudsman to include in 1991 the Superfund program, and
all other solid and hazardous waste. See, GAO Report at pg. 5-6. The
EPA National Ombudsman is responsible for responding to citizen
concerns, assisting industry in complying with environmental
regulations, providing information and investigating the merits of
complaints and grievances arising from the relevant programs. Although
the EPA National Ombudsman does not have the legal authority to reverse
or modify program decisions ``based on sound information gained through
contact with the public, the Ombudsman may, on occasion, effect program
adjustments in resolving particular problems.'' (See, EPA Hazardous
Waste Ombudsman Handbook at pg. 1-3.) These adjustments are made
through the National Ombudsman's ability to influence Agency
decisionmaking and through the National Ombudsman's role as a mediator
and ability to conduct alternative dispute resolution proceedings.
(See, Handbook at pgs 1-5).
<bullet> The United States Environmental Protection Agency hired
Robert J. Martin on October 18, 1992 as a career employee and
exceptional candidate to be Ombudsman. For the next several years,
Ombudsman Martin undertakes cases in Apollo, PA., Southington, CT.,
Jacksonville, AR., Houston, TX., Triumph, ID., Pensacola, FL., and
McFarland, CA. all of which result in successful mediations with EPA
and changes in decision. Among the changes in direction in these
communities are time critical removals of hazardous waste, departures
from incineration as a remedy where site characterization was not
adequate or operations were not safe; negotiation for shared
decisionmaking between the EPA and State government; and permanent
relocation of an African American community as well as multi-phase
investigation of pesticides contamination in an Hispanic American
community.
<bullet> The United States Environmental Protection Agency
establishes a Regional Superfund Ombudsman program, however, the
Regional Ombudsman do not perform the job full time and most
importantly, have inherent conflicts of interest as they would have to
investigate their supervisors in order to followup on complaints from
citizens. (1995). Further, the Regional Ombudsmen do not report to the
National Ombudsman and attempt to exercise primary jurisdiction over
National Ombudsman cases. By 1998, EPA decides to transfer all new
National Ombudsman cases to the Regional Ombudsmen but then withdraws
that decision in the face of widespread objections by the National
Ombudsman, the public and the Congress.
<bullet> Following the establishment of the Superfund Regional
Ombudsman, Ombudsman Martin undertakes more controversial
investigations of the Rocky Mountain Arsenal in Denver, CO., the Drake
incineration project in Lockhaven, PA., and the Times Beach
incineration project in Eastern Missouri. These investigations lead to
adoption of many operational safeguards for the incineration projects.
A Federal criminal grand jury is convened in St. Louis, MO. As a result
of the Ombudsman investigative report in that case. Ombudsman Martin
provides testimony to the grand jury under subpoena.
<bullet> Ombudsman Martin undertakes to investigate the Shattuck
case in Denver, CO. at the request of Senator Allard and Representative
Degette as well as Denver Mayor Webb and Governor Owens. Public on the
record hearings are convened and hosted by Members of Congress. The
decision by EPA to leave radioactive waste on the Shattuck site is
reversed following recommendations by Ombudsman Martin to remove the
waste on the basis of evidence provided at the hearings. (1999). During
the Shattuck proceedings, EPA convenes a special Task Force comprised
of representatives from all the Regional offices, the Office of General
Counsel and the Office of Inspector General. The Task Force develops
guidelines to restrict the independence of the National Ombudsman
function.
<bullet> Ombudsman Martin undertakes additional cases in Tarpon
Springs, FL., Throop, PA, the Couer D'Alene Basin in Idaho, East
Liverpool and Uniontown, OH., and Riviera Beach, FL. Results included
withdrawing a consent decree to do further characterization work;
deferring implementation of a remedy to provide for final Ombudsman
report; further risk assessment and testing at a hazardous waste
incinerator and provision of funding to help a predominantly African
American community pay for the cost of cleaning their contaminated
drinking water. At the end of 2000, EPA reassigns and prohibits
Ombudsman Martin's Chief Investigator from helping Mr. Martin and
otherwise participating in the function.
<bullet> On January 3, 2001, EPA published the ``Draft Guidance for
the National Hazardous Waste Ombudsman and the Regional Superfund
Ombudsmen Program'' in which it attempted to define the National
Ombudsman function and to limit the scope of the Ombudsman's authority.
See, 66 Fed. Reg. 365 (January 31, 2001).
<bullet> On February 14, 2001, Senator Arlen Specter, Senator Rick
Santorum and U.S. Representative Sherwood wrote to EPA Administrator
Whitman requesting that she insure that National Ombudsman Martin would
be afforded the opportunity to proceed with the Marjol Battery case
without hindrance and on March 8, 2001 that as a result of recent
meetings with the Administrator Ombudsman Martin would receive
additional staffing and resources immediately. On that day Ombudsman
Martin was notified that the Inspector General of the EPA, at the
request of the Administrator, would be detailing Bernard Stoll from the
Inspector General's office to perform the Marjol investigation. On
March 16, 2001, Assistant Inspector General Johnson wrote to ombudsman
Martin that Mr. Stoll had no actual or apparent conflict of interest
regarding the Marjol case. On March 27, 2001 Ombudsman Martin notified
the Inspector General of the EPA and the Administrator that Mr. Stoll,
in fact, did have a conflict of interest because of his wife's position
at the EPA. The EPA Office of Inspector General then withdrew Mr.
Stoll, without any admission as to conflict of interest.
<bullet> On July 27, 2001, the General Accounting Office of the
United States issued a report at the request of the Chairmen of the
Sub-Committee on Environment and Hazardous Materials, Committee on
Energy and Commerce, U.S. House of Representatives, which outlined the
value and significance of the National Ombudsman's office and concluded
that the EPA should `` provide the Ombudsman with a separate budget and
. The authority to hire, fire and supervise his own staff.'' In
addition, the GAO found all Federal Ombudsmen are independent and
report directly to the head of the Agency and that the EPA National
Ombudsman does not have sufficient independence.
<bullet> On October 2, 2001, National Ombudsman Martin wrote to the
Administrator recommending how the EPA should comply with the GAO
report. This included a discussion of how and why moving the National
Ombudsman's office to the EPA Office of Inspector General would reduce
the National Ombudsman's independence further and would not comply with
the GAO report.
<bullet> On October 10, 2001, National Ombudsman Martin issued a
preliminary report on the Marjol case and recommended further site
investigation to ensure a more thorough clean-up. The report also
documented that the EPA Office of Inspector General attempted to hinder
and obstruct the independent National Ombudsman investigation of the
Marjol case.
<bullet> In November of 2001, Administrator Whitman wrote National
Ombudsman Martin that she was deliberating the GAO recommendations and
would decide on the matter of National Ombudsman Martin's status soon.
Administrator Whitman was silent on National Ombudsman Martin's
invitation to meet and to discuss how to best implement the GAO report.
On November 27, 2001, Administrator Whitman issued instructions
transferring the National Ombudsman Martin to within the EPA Office of
Inspector General and transferring control of all National Ombudsman
cases to the EPA Inspector General. National Ombudsman Martin
vehemently objected to Administrator Whitman the same day enunciating
the dissolution of Ombudsman independence and the hindrance and
obstruction of the EPA Office of Inspector General in the Marjol case.
<bullet> On December 7, 2001, 18 United States Congressmen wrote to
Administrator Whitman requesting that she not implement her planned
dissolution of the National Ombudsman's office and transfer control of
the National Ombudsman's investigations to the EPA Inspector General
until after congressional hearings on increasing the independence of
the National Ombudsman in early 2002. On December 18, 2001, Assistant
Inspector General Johnson notified National Ombudsman Martin that he
would be Mr. Martin's supervisor at the Office of Inspector General. On
December 19, 2001, nine additional United States Congressmen wrote to
Administrator Whitman requesting that she not proceed with the planned
dissolution of the National Ombudsman.
<bullet> Later in December of 2001, U.S. Senator Wayne Allard of
Colorado wrote Administrator Whitman and asked several questions
relating to the National Ombudsman's status in the EPA Office of
Inspector General after the impending transfer had been completed.
Administrator Whitman replied, among other answers, that Mr. Martin
would no longer be able to independently select his cases and would
have no supervisory or managerial authority over his budget .
<bullet> On January 7, 2002, National Ombudsman Martin had
undertaken the World trade Center case as an independent investigation
supported by U.S. Representative Jerrold Nadler of New York. By early
January, a private citizen in Tarpon Springs, Florida sought injunctive
relief against the planned dissolution of the Ombudsman function as did
Throop Borough and Lackawanna County, PA. and several local governments
in Idaho. The foregoing lawsuits were pending when National Ombudsman
Martin filed his own action for injunctive relief in Federal district
court in Washington DC seeking to prevent the dissolution of the
National Ombudsman function.
<bullet> On January 11, 2002, U.S. Federal District Court Judge
Roberts issued a Temporary Restraining Order against EPA Administrator
Whitman preventing her from dissolving the National Ombudsman function.
Judge Roberts set down the case for full hearing for a motion on
preliminary injunction on April 12, 2002. During the interim period,
National Ombudsman Martin help expedited public hearings on the World
trade Center case in New York City which were hosted by U.S.
Representative Nadler. National Ombudsman Martin recommended that the
EPA use its statutory authorities and expertise to help the residents
of New York City clean their residences following the terrorist attack
upon the World Trade Center. Those recommendations were subsequently
adopted by the EPA.
<bullet> On April 12, 2002, Judge Roberts vacated the Temporary
Restraining Order and referred the case to the United States Office of
Special Counsel for exhaustion of administrative remedies. Within
hours, Administrator Whitman and the EPA Office of Inspector General
proceeded to dissolve the independent EPA National Ombudsman function.
By April 19, 2002, while National Ombudsman Martin was on official
travel and then requested sick leave to care for his child who was
being treated for a heart condition, the EPA Office of Inspector
General had changed the locks to the Ombudsman office, removed all the
computers and phones and had taken all the files for the pending
National Ombudsman cases.
<bullet> On April 22, 2002, National Ombudsman Martin resigned his
position from the United States Environmental Protection Agency,
subject to any prospective ruling from the United States Office of
Special Counsel. In May of 2002, the United States Office of Special
Counsel requested Mr. Martin to engage in mediation of his case with
the United States Environmental Protection Agency. Mr. Martin agreed
and indicated that he would like the opportunity to return to the EPA
for a year to finish his cases for the many American communities which
had asked for independent Ombudsman investigations. He continues to
await a reply from the EPA.
DISCUSSION
A true and independent National Ombudsman function cannot exist
within the EPA Office of Inspector General. First, EPA itself has
recognized that any change or limitation on the scope of the EPA
National Ombudsman's function is a ``rulemaking subject to notice and
comment requirements. Specifically, on January 3, 2001, EPA published
``Draft Guidance for the National Hazardous Waste Ombudsman and the
Regional Superfund Ombudsmen Program'' in which it attempted to more
clearly define the ombudsman's office and to limit the scope of the
ombudsman's authority where matters in litigation were concerned. 66
Fed. Reg. 365 (Jan. 31, 2001). Whereas EPA recognized the need to
comply with the rulemaking requirements on January 5, 2001,
Administrator Whitman simply ignored them on November 27, 2001.
Administrator Whitman's unilateral decision to eliminate the EPA
National Ombudsman's office was rulemaking subject to notice and
comment requirements under 5 U.S.C. Sec. 553. Administrator Whitman did
not publish notice and no comment period was provided. Because the
decision to eliminate the Office of the Ombudsman is a rulemaking act,
doing so without giving notice and comment period clearly violated the
APA rulemaking requirements listed above. Administrator Whitman's
decision was, thus, invalid.
By establishing the EPA National Ombudsman's office, prescribing a
set of procedures for handling complaints and grievances and
establishing the ombudsman program, EPA created a program to deal with
public grievances and complaints. Where an agency ``has crystallized
what its policy shall be, the agency must abide by that policy. The
Morton v. Ruiz decision in 1974 illustrates than an agency which has
adopted a rule cannot abandon it casually and go back to ad hoc
decisionmaking without first undoing or making exceptions from the
rule.'' O'Reilly, James T., Administrative Rulemaking, Sec. 3.07
(1983). Administrator Whitman's decision was more than merely moving
EPA's National Ombudsman from the OSWER building to the OIG building.
It was the elimination of an entire program for addressing and
resolving grievances and complaints from the public which has both
environmental and economic impacts. Any decision which has such a
significant impact on the public is more than merely ``agency
organization, procedure and practice.'' Such a decision is clearly not
within exceptions to rulemaking requirements.
As a matter of law, Administrator Whitman's decision necessarily
terminates the National Ombudsman function. Whitman's decision to
``transfer the function'' of the EPA National Ombudsman's office to the
OIG was ultra vires because the OIG lacks the authority to act as an
ombudsman and Administrator Whitman cannot expand the OIG's authority
as delegated by Congress. The root of this argument was aptly explained
by one commentator as follows:
``An administrative agency is a creature of the
legislature.'' As a corporation is to its charter, the
administrative agency is to its enabling legislation. This
means that the basic doctrine of administrative law, as of
corporation law, is the doctrine of ultra vires. The
jurisdictional principal is the root principle of
administrative power. The statue is the source of an agencies
authority as well as its limits. If an agency act is outside
[the statutory limits] (or vires), it is invalid.
Schwartz, Bernard, Administrative Law, Sec. 4.4 (1984) (citations
omitted). This principle was clearly stated by the U.S. Supreme Court,
``When Congress passes an Act empowering administrative agencies to
carry on governmental activities, the power of those agencies is
circumscribed by the authority granted.'' Stark v. Wickard. 321 U.S.
288, 309 (1944).
Unlike the EPA itself, the OIG was not created by executive order
but by an Act of Congress. Inspector General Act of 1978, 5 U.S.C.
Appx. Sec. 1. Although EPA tried to characterize Administrator
Whitman's decision as nothing more than moving the ombudsman function
from one office in the agency to another for purposes of expediency,
this is a completely inaccurate characterization.
The OIG, although housed within EPA, is actually a completely
separate entity. Administrator Whitman even admitted this in the
November 27, 2001 decision where the Administrator stated, ``The OIG is
by statute an independent organization within the agency.'' (Memo, Nov.
27, 2001 Decision). The OIG's narrow authority and functions are
prescribed, and circumscribed, by the Inspector General Act of 1978.
Stark v. Wickard. 321 U.S. at 309. This Act authorizes the OIG to
investigate waste, fraud, and abuse, to report criminal activity to the
United States Attorney for prosecution, and to recommend policies and
procedures for avoiding and prohibiting waste, fraud and abuse to the
head of the agency. See 5 U.S.C. Appx Sec. 1 et seq. Nowhere in the
`OIG's organic statute is the OIG authorized or delegated authority to
act as an ombudsman or to perform the duties and responsibilities of
seeking to resolve citizen complaints and grievances. The OIG is not
authorized by its organic statute, 5 U.S.C. Appx. Sec. 1, to perform
the duties and responsibilities identified in the ``Duties and
Responsibilities'' attachment to the ``Position Description'' EPA
published for the National Ombudsman position.
Further, the ``ombudsman'' function is not a subordinate role to
those functions authorized by Congress and the ombudsman function is
not a necessary component of the OIG's other functions. In fact,
Congress explicitly recognized that the OIG was not intended to
function as an EPA ``ombudsman'' by creating the National Ombudsman's
Office, 6 years after the Inspector General Act of 1978, via the 1984
Solid and Hazardous Waste Amendments to the Resource Conservation and
Recovery Act. See H.R. Rep. No. 98-198 (May 17, 1983) (``EPA has been
hampered in its ability to communicate with the public by not having a
single office whose essential purpose is to respond to citizen
inquiries and complaints. The Committee recognizes this important need
and as adopted a provision establishing, within the Agency, the Office
of Ombudsman.'')
``The legislative power of the United States is vested in the
Congress, and the exercise of quasi-legislative authority by
governmental departments and agencies must be rooted in a grant of such
power by the Congress and subject to limitations which that body
imposes.'' Chrysler Corp. v. Brown. 441 U.S. 281,302 (1979). Because
the OIG does not have a delegation of authority from Congress to act as
an ``ombudsman,'' it lacks the ability to receive the National
Ombudsman ``function'' purportedly transferred by Administrator
Whitman's November 27, 2001 decision. Thus, the purported transfer of
the ombudsman function to the OIG was ultra vires and invalid.
EPA sought refuge in the provision of the Inspector General Act
that authorized the Administrator of the EPA, at the time the 1978 Act
was adopted, to transfer ``offices or agencies, or functions, powers or
duties'' to the OIG. However, this power is limited to those offices or
agencies, or functions, powers or duties that are ``properly related to
the functions of the Office [of Inspector General]'' and which do not
involve ``program operating responsibilities'' and the Administrator
cannot transfer functions not properly related to the functions of the
OIG set forth in the statute, all of which concern waste, fraud and
abuse. Inspector General Act, Sec. 9(a)(2).
The Ombudsman program is not properly related to the functions of
the OIG as set forth in the Inspector General Act of 1978. The kind of
offices intended to be transferred to OIG were those offices within the
various agencies that would duplicate the OIG upon its creation. See
e.g., Inspector General Act, Sec. 9(M)(Transferring the EPA ``office of
Audit'' and the PEA ``Security and Inspection Division'' to the OIG).
Further, EPA fails to recognize that Congress created a ``program''
when it required EPA to create the Office of Ombudsman and transferring
the ombudsman program would necessarily involve the transfer of
``program operating responsibilities.'' The EPA National Ombudsman ``is
primarily responsible for national coordination of the Hazardous Waste
Ombudsman Program and for the ongoing review, evaluation and analysis
of the program.'' (Hazardous Waste Ombudsman Handbook at 2-4 (emphasis
added, numerous other references to the National Ombudsman's program
operating responsibilities can also be found within the handbook).
Thus, a transfer of the National Ombudsman ``function'' to OIG would
require the OIG to accept ``program operating responsibilities'' in
violation of Sec. 9(a)(2) of the Inspector General Act. Administrator
Whitman's decision which purportedly transfers the ombudsman function
to OIG was not authorized by the Inspector General Act and was ultra
vires.
Given that the transfer of authority to OIG was invalid and that
the exercise of the ``ombudsman function,'' by the OIG would be ultra
vires, one must look at the remaining effect of Administrator Whitman's
decision. The remaining elements of the decision are, essentially, the
EPA National Ombudsman's files for ``review,'' and the transfer of
Robert Martin, the EPA National Ombudsman, from a ``management
official'' position to a non-supervisory, ``unclassified position'' at
OIG. Clearly, Administrator Whitman's decision worked a termination of
not only the office, but the function of the EPA National Ombudsman.
However, the OIG, which is entirely independent from EPA, has a
limited scope of authority that does not permit it to perform the
ombudsman ``function.'' 5 U.S.C. Appx. Sec. 1. OIG has no right,
authority, or obligation to carry on any of the investigations, except
to the extent of looking for waste, fraud and abuse, reporting criminal
conduct to the attorney general and making policy recommendations for
avoiding or mitigating waste, fraud and abuse. 5 U.S.C. Appx. Sec. 1
Because the National Ombudsman does not handle matters relating to
waste, fraud and abuse, but instead forwards them to the OIG (Hazardous
Waste Ombudsman Handbook at 3-3: allegations of such wrongdoing to be
forwarded to OIG), these should be little or nothing in the Ombudsman's
cases that the OIG has authority to handle. Thus, as a matter of law,
the OIG will not be able to, and cannot be compelled to continue any of
the Ombudsman cases.
Third, as a practical matter, EPA's own ``Position Description''
defines the PEA National Ombudsman as:
A management official (as defined by Title VII of the Civil Service
Reform Act) who formulates, determines, or influences an organization's
policies. This means creating, establishing, or prescribing general
principles, plans, or courses of action for an organization; deciding
on plans or courses of action for an organization; or bringing about a
course of action for the organization.
Management officials must actively participate in shaping the
organization's policies; not just interpret laws and regulations, give
resource information or recommendations, or serve as experts or highly
trained professionals who implement and interpret the organization's
policies and plans.
Further, EPA's ``duties and responsibilities'' attachment to the
National Ombudsman's ``Position Description'' describe the function of
the National Ombudsman:
The. . . Solid and Hazardous Waste Ombudsman . . . is the
public official who investigates people's concerns regarding
matters pertaining to the disposal of solid and hazardous
waste. [It] will receive and take action on individual
complaints, grievances, and requests for information submitted
by any person with respect to any program or requirement under
solid and hazardous waste programs. Based on any findings, will
make appropriate recommendations to the Assistant
Administrator, and to other appropriate Agency officials. . . .
Id. (Duties and Responsibilities Description at 1). EPA authorized
the National Ombudsman to formulate, determine or influence EPA's
policies. The EPA further gave the National Ombudsman the duty to
investigate people's concerns, to take action on individual complaints
and grievances, and, based upon findings, to make appropriate
recommendations to EPA officials through the Assistant Administrator.
Id. (Duties and Responsibilities Description at 1-2). Further, the EPA
National Ombudsman ``[s]erves as the Agency's expert on matters
concerning the relationship between solid and hazardous waste statutes
and the public. The [National Ombudsman] performs this function through
coordination, implementation, and interpretation of current policy as
it affects the public.'' Id. The National Ombudsman ``[d]irects and
manages staff and resources establishing internal operating policies
and procedures, allocating resources, assigning and evaluating work,
and carrying out the objectives of [the] unit.'' Thus, the National
Ombudsman was authorized to determine the means of carrying out his
duties, including holding public hearings and conducting alternative
dispute resolution proceedings.
When Administrator Whitman eliminated my position description and
transferred me to the EPA OIG to an ``unclassified'' position, the
National Ombudsman function was essentially obliterated.
To properly function as an ``ombudsman,'' I would have to be
completely independent and impartial and would require the ability to
have an independent budget, to hire, fire and supervise my own staff
and to make independent decisions regarding which complaints and
grievances the Ombudsman would investigate and resolve and which to
forward to other agencies. (GAO Report, at 6-10; Hazardous Waste
Ombudsman Handbook at 1-1.)
VISION
An ombudsman should be entirely independent of the Agency that it
investigates. I agree with the testimony of the United States Ombudsman
Association, therefore, that the National Ombudsman function
established by the Congress should be located within Congress and
report directly to the Congress with the ability to make collateral
recommendations to the executive branch through the EPA and the White
House Council on Environmental Quality. As I enunciated in my
resignation nearly 2 months ago, the American people deserve nothing
less than a truly independent and empowered National Ombudsman to
protect their health and environment. I entrust the Congress with the
noble task of establishing this Ombudsman institution for the people of
the United States of America. Thank you for your support and
consideration.
__________
Statement of Danielle Brian, Executive Director, Project on
Government Oversight
I want to thank you for asking me to testify today on the EPA
National Ombudsman's Office, and the brazen attempts spanning two
Administrations of EPA management to weaken, and ultimately destroy,
that office. The Project On Government Oversight (POGO) investigates,
exposes, and seeks to remedy systemic abuses of power, mismanagement,
and subservience by the Federal Government to powerful special
interests. Founded in 1981, POGO is a politically independent,
nonprofit watchdog that strives to promote a government that is
accountable to the citizenry.
POGO first became aware of a problem when citizens from Lake
Township, Ohio, brought the Industrial Excess Landfill (IEL) Superfund
site to our attention more than 5 years ago. From the beginning,
citizens, public officials, and independent scientists have raised
legitimate questions about conflicts of interest, inappropriate testing
methods, quality of site characterization, and adequacy of the methods
of remediation selected by the EPA for the site clean-up. Because of
these issues, citizens from the community had attempted to gain a
National Ombudsman review of the IEL. Their request was denied--not by
the National Ombudsman, but by the Environmental Protection Agency
(EPA) itself. When we petitioned the EPA National Ombudsman's office to
review the site, our request was also denied--again by Administrator
Carol Browner, not by the Ombudsman. It took repeated requests from
POGO and Representative Tom Sawyer over almost an entire year to get
top EPA management to overturn their decision to prevent Ombudsman
Robert Martin from reviewing the site. The mere fact that the Ombudsman
was not allowed to decide for himself whether or not the case was
worthy, but instead had to receive approval from both the head of the
Superfund Office as well as the Administrator, made a mockery of the
independence of the office.
We decided to look at other EPA regions around the country to see
if the problems at IEL were unique. Unfortunately, we found that they
were not. We learned about the Shattuck site in Denver, Colorado; the
Brio site in Harris County, Texas; about McFarland, California; Tarpon
Springs, Florida, and on and on. The communities affected by these
sites had all come to view the EPA not only as unresponsive to their
concerns, but as active partners with the polluters. And the only place
left to consider the concerns of these communities was the National
Ombudsman's office. Against the odds, in these and other cases the
Ombudsman was able to make all proceedings public as well as conclude
or begin the process of resolving longstanding disputes.
Despite the obstacles, the National Ombudsman's Office has been
remarkably effective at getting the EPA to review its decisions and
correct its mistakes. Not only did the Ombudsman offer the communities
successful resolutions to their particular troubles, he gave them
reason to believe that sometimes the government can do the right thing.
Unfortunately, the success of the Ombudsman's work embarrassed the EPA,
and has ultimately resulted in an effort by the EPA to undermine that
Office. I find it remarkable that so much effort has gone into
silencing the Ombudsman's office, when this office can only make
recommendations--they cannot overturn EPA decisions.
Our concern over the Ombudsman's lack of independence led us to
suggest to EPA top management in November 1998 that a public process
and working group be initiated to develop recommendations for improving
the independence of the National Ombudsman's Office. We recommended
that representatives from the U.S. Ombudsman Association, environmental
community, labor, industry, good government public interest groups, the
EPA, the National Ombudsman's office, members of affected communities,
and others be included in this working group. In a response to our
letter, however, EPA management stated ``I do not find that such a
review as depicted in your letter is necessary.''
Apparently, while no public review was necessary, the EPA found
that a covert one was. EPA Management promptly convened a behind-
closed-doors EPA committee on the National Ombudsman ``problem.'' Why
was an internal EPA management committee created to change a process
that is lauded by the public and their elected officials?
Since that time, interference by the management of EPA into the
Ombudsman's work has occurred again and again, culminating in the total
dismantling of the office. At one point, EPA established a network of
part-time Regional Ombudsmen--approximately 20 percent of the time they
were supposed to be Ombudsmen while 80 percent of the time they were
working for the very bureaucracy whose decisions they were supposed to
be evaluating. This move clearly revealed a lack of understanding by
EPA management of the purpose of an Ombudsman office.
It is fairly clear to us why the office of the National Ombudsman
has come under constant attack by EPA top management. It is because the
Ombudsman has been effective in doing exactly what an Ombudsman is
supposed to do--to investigate complaints of inadequacies in the EPA's
handling of Superfund sites and to suggest remedies to the problems he
finds.
It must be noted that hostility to this office began under a
Democratic Administration, and continued under a Republican one. Good
Ombudsman work is welcomed by the communities, and even the Potentially
Responsible Parties (PRPs), but never by the management whose decisions
he is scrutinizing.
We are here today because S. 606 has been introduced to provide the
Ombudsman's Office statutory authority. This step is absolutely
essential given the EPA's history, and especially given Administrator
Christine Todd Whitman's decision to raid the office and move the files
to the Inspector General. The Ombudsman's Office has been closed simply
because Robert Martin was doing his job despite the liabilities under
which he was forced to work--a tiny and shrinking staff, repeated
pressure from management not to take on cases, and constant efforts to
further limit his authority.
In addition to this legislation, the Whistleblower Protection Act
Amendments, S. 995, would give the Ombudsman necessary protections to
carry out his job responsibilities. Were these amendments in effect
today, Robert Martin would have had legal protection from the EPA's
attempts to dismantle his office simply because he did his job.
Amazingly, being fired for doing ones job is only one of many
inexcusable loopholes that have made the law irrelevant. I urge all the
Members of this Committee who have not yet become co-sponsors to
support this important legislation.
The Government Accounting Office (GAO) examined four other agencies
with ombudsman programs for its report on the status of EPA's
Ombudsman: the Agency for Toxic Substances and Disease Registry, the
Food and Drug Administration, the Federal Deposit Insurance
Corporation, and the Internal Revenue Service. All of these ombudsman
programs have independence from the agency within which they are
organizationally situated and some have control over budgetary and
staffing resources. These agencies also all have Inspectors General,
though none of their ombudsman programs are under the aegis of, or in
any way affiliated with, the respective Inspectors General.
We believe in the independence of the Inspectors General as well as
the Ombudsman's Offices. They each serve important, but different
functions. According to the legislative history of the creation of the
Inspectors General,
Broad as it is, the Inspector and Auditor General's mandate
is not unlimited. Issues requiring substantive or technical
expertise will often fall outside his proper sphere. For
instance, if the Inspector and Auditor General at the
Environmental Protection Agency received a report that a new
type of sewage treatment system in Milwaukee was not
functioning according to specifications, resulting in dangerous
levels of pollution, the Inspector and Auditor General could
quite properly decide that responsibility for handling the
issue rested elsewhere and make the proper referral.
In fact, the office to which the Inspector General could make that
``proper referral'' would likely be the National Ombudsman's office. An
IG does not have the technical expertise to evaluate a proposed
remediation and determine whether the EPA's decisionmaking is sound. In
other words, the IG is set up to investigate waste, fraud, and abuse,
and audit programs. The Ombudsman, on the other hand, is the proper
office to receive complaints, either from the community or the PRPs,
that a cleanup plan is somehow inadequate. After an investigation, the
Ombudsman can evaluate the validity of this plan something the IG would
not and could not do.
It is particularly that the EPA have an independent Ombudsman
Office because of a regulation in the Superfund Act that prevents a
remedy decision from being challenged until after the remedy has been
implemented. This rule, CERCLA section 113(h), eliminates the option of
challenging a remedy through the courts that, for example, the
community thinks will further endanger its health or safety. While the
rule was adopted to prevent parties from tying up a good remedy in the
courts, it also serves, in reality, to allow the EPA to implement a bad
remedy.
Although the entities responsible for the pollution, the PRPs,
cannot challenge a remedy through this route, the EPA allows them to
conduct the studies and provide the data that influence the design of a
site remedy. Citizens in Superfund communities have not been allowed
that same opportunity. The Ombudsman is the only recourse for citizens
who feel that the EPA has not adequately protected their health or the
environment.
These concerns are not new. It was 13 years ago that the Senate
Subcommittee on Superfund issued a bipartisan report which found that,
statistically, the involvement of the PRP's led to cheaper remedies
that did not necessarily protect health and safety. The report stated,
``This data raises the disturbing possibility that EPA, in an effort to
achieve settlements or to compel responsible parties to pay for
cleanups, may be sacrificing health and environmental standards as
required by law.''
We are releasing today the results of our investigation into the
EPA's handling of Superfund sites, using the IEL site in Ohio as a case
study. It is entitled, ``A Partial Approach to Clean-up: EPA Mishandles
Superfund Investigations.'' We conclude that because the EPA has come
to rely so heavily on the PRPs to help develop the cleanup plan for the
sites, the system is skewed to favor the cheapest, but not necessarily
best, remedy. At the same time, the communities are essentially
powerless to protect their interests. As a result, the National
Ombudsman's office is the last recourse for communities to ensure that
a thorough and adequate investigation of the site has taken place and
the best interests of the community have been considered.
Legislation such as S. 606 is essential for the independence of
this critical function. However, we have come to believe that although
the Ombudsman's Offices reviewed by the GAO did report to Senior
Administrators of their Agencies or Departments, the plan in S. 606 to
move the EPA's Office of the Ombudsman to the Administrator's Office
will not work. From our work investigating the oversight offices at
other agencies, including the Department of Energy and the Nuclear
Regulatory Commission, POGO has determined that genuine independent
oversight cannot proceed from within the bureaucracy it evaluates. In
this case, we would encourage the Committee to consider placing a
National Ombudsman's Office in either a White House office or as part
of the legislative branch, perhaps attached to the General Accounting
Office. We also believe that the legislation should include
whistleblower protections for those who come to the Ombudsman with
information.
We would be happy to work with you on this issue, and to answer any
questions you may have.
__________
Statement of Katherine Zanetti, Shoshone Natural Resources Coalition
INTRODUCTION
Mr. Chairman, my name is Kathy J. Zanetti. I am a 49-year-old
grandmother of four and a proud member of a fifth generation family
from the Historic Silver Valley of North Idaho.
I would like to thank you and Senator Crapo for the opportunity to
speak before this committee today on a topic that has dominated the
attention of my community for the last 2 years.
I am honored to represent the Citizens of Silver Valley and testify
in support of Senate Bill 606. As Senator Crapo stated, I am the
chairman of Shoshone Natural Resources Coalition, a non-profit group of
volunteer citizens, who work and live in the Coeur d' Alene basin and
are concerned about Human Health, Environmental and Economic Issues.
We are a grassroots organization made up of a very diverse group of
individuals. SNRC represents business owners, district school
officials, community leaders, local elected officials and generations
of Silver Valley Families. Many of our members have been involved in
EPA issues in the Upper CDA Basin for 20 plus years.
And although our approach and opinions about cleanup in the Silver
Valley may be different, we are united in the common need for a truly
independent Ombudsman.
We are a community filled with an intense pride, for our heritage,
our families and most of all our way of life. A way of life now held
precariously in peril by the decisions of various Federal agencies.
The Environmental Protection Agency came to the Silver Valley in
the early 1980's shortly after CERCLA [Superfund] became law, to
address specific cleanup at the Bunker Hill Smelter and they have been
there ever since.
Although, there may have been a human health risk that warranted
their presence at the time, there is no medical or undisputed
scientific evidence that one exits today.
In the last 20 some years, the EPA has spent over $400million
dollars in the Silver Valley and has not even completed the original
scope of cleanup. EPA Region 10 deceived the public by first promising
that the superfund site in Kellogg would not extend beyond its initial
21-square mile box.
Yet, they have unilaterally expanded the range of remediation by
1500 square miles, crossing state lines, adding to the cost another
$360millon dollars (possibly as much as $1.3billion) and creating the
Nation's Largest Superfund Site. With little or no regard to the
citizens or communities who must endure these ever changing boundaries.
Whereupon today, after all the money and billion-dollar expansion
plans, EPA's own Central Impoundment Area at the Bunker Hill Superfund
Site, remains the largest point source contributor of metals into our
watershed.
It is our sincere wish to take care of any necessary cleanup that
remains to be done in the Upper Basin, to get out from under the Stigma
of ``Superfund'', and to rebuilding our lives, as well as, the economic
stability of our community.
Superfund actions around the Nation have taken on a life of their
own, which hold communities such as mine in a never-ending state of
limbo. It appears that Region 10 EPA in their dealings with the Coeur
d' Alene River Basin of North Idaho has become a Bureaucratic machine,
driven by personal agendas.
After years of attending meetings, drafting comments and writing
hundreds of letters, we realize that our voices have fallen on deaf
ears. When in reality, we were merely being counted as part of the
agencies numbers game. They hold hearings and workshops but do not seem
to listen to the concerns of the communities involved.
We have truly had nowhere else to turn, until the Ombudsman stepped
forward.
epa's office of hazardous waste and the office of inspector general
The Office of the Ombudsman has answered our call to the Silver
Valley.
First, under the Office of Solid Waste and Emergency Response,
where it's authority was maintained by the very entity it was
investigating, budgets and personnel were used to control ombudsman
activities and who's mail was often intercepted by EPA congressional
Affairs. All of which resulted in a total lack of independence. Where
the United States Department of Justice even attempted to kill the
investigation to protect its Natural Resource Damage lawsuit.
Second, at present, under the Office of Inspector General, the
Ombudsman is to assume duties other than those designated under
Superfund, take on an increased workload and basically ceases to exist
as an office because, it is now a part of yet, another bureaucracy
within a larger bureaucracy.
While we welcome the attempt to work with the IG's office and will
welcome them with open but cautious arms to the Silver Valley, we feel
that in the long term this situation cannot work. There must be a
dedicated, independent Ombudsman.
The National Ombudsman serves as the only intermediary between EPA
and citizens when things have gone terribly awry. This office is the
last resort and sometimes the only resort for the common citizen and
common sense. The Office of the Ombudsman, above all else, requires
independence, so that it may work effectively with both sides to find
reasonable and successful solutions that are environmentally sound and
meeting the needs of communities everywhere.
The ombudsman position is the people's court of last resort.
Communities like the Silver Valley need an Ombudsman who not only can,
but also who must, intervene on environmental health and safety issues
on our behalf. Without having their hands tied, actions influenced and
censored by the controls of other agencies.
Only the Ombudsman can answer our call to do the right thing!
SENATE BILL 606, THE OMBUDSMAN REATHORIZATION ACT
To be effective and of true service to the public, an Ombudsman
must be independent, accountable and unbiased. I believe Senate Bill
606 achieves these objectives. Without S606 communities like mine have
nowhere to turn when they have exhausted all hope of working
constructively with the EPA. And I for one; refuse to continue to allow
the Environmental Protection Agency to use my own tax dollars unchecked
against either me, or my family.
Finally, in this Great Nation, our structure of government is set
up with many forms of checks and balances, so that citizens have a
channel to express concerns against abuse or cupreous acts of public
officials.
The National Ombudsman Office is that channel, and therefore,
should be able to work unimpeded to help achieve fair, as well as
reasonable, checks and balances of the EPA.
In conclusion, I would like to also submit this written testimony.
Thank you for the opportunity to testify before this committee
today and I urge you to please support Senate Bill 606.
__________
Statement of Susan Shortz, Citizen of Throop, PA, President, Halt
Environmental Lead Pollution (HELP) and Member, Citizen Review
Committee for the Marjol Site
The Borough of Throop is a small residential community with a
population of about 4,100. The Marjol Site is a former lead-acid
battery recycling facility located in the Borough. The 43.9-acre Site
is owned by Gould Electronics, Inc. There are approximately 65
residential homes within 500 feet of the Site boundary and 25 of those
homes are within 50 feet of the Site. The Lackawanna River borders the
Site to the West. Over 500,000 cubic yards of battery casings are
stockpiled and buried on this site. There are PCB's, PAH's, antimony,
arsenic, cadmium and other carcinogens buried on this site. Lead has
been measured at levels as high as 250,000 parts per million in the
soil. In addition, a large volume of soil offsite became contaminated
with lead from Site operations, fugitive dust emissions, and stormwater
runoff. This area is undermined from previous anthracite deep coal
mining. Our county is the site of numerous mine fires and mine
subsidence occurrences over the years and some are still ongoing. In
reality it is an illegal, toxic, hazardous waste dump, in the middle of
small town, without benefit of permits or regulatory controls such as
liner, or leachate collection systems.
Several State and Federal site assessments were initiated between
1967 and 1987 because of elevated airborne emissions and high soil lead
concentrations in the neighborhood. In 1987 USEPA's Technical
Assistance Team collected soil samples from onsite and offsite areas.
In response to elevated lead concentrations onsite and offsite in
residential areas, the USEPA issued the CERCLA Order on April 6, 1988.
Although the EPA assured us there were only a few homes contaminated,
and they would be out of our lives in 2 years, this order resulted in
the residential cleanup of 111 homes. The families and community
endured soil excavation, tree and shrub removal, and interior cleaning
and carpet removal. Although we later found out, through the
Ombudsman's investigation, that on environmental threat alone we
qualified for Superfund cleanup on the NPL listing, EPA did not list
the site on the National Priority List. On June 11, 1990 a RCRA
Administrative Order of Consent was signed between Gould and the EPA.
For the next 10 years, we attended meetings, watched timelines come and
go. And over and over the EPA continued to say that our site would be
cleaned up in 2 years. Then finally in 2000 we got a glimpse of EPA's
statement of basis (cleanup order). We were very disappointed that only
a portion of the hazardous waste would be removed, and most of the
hazardous waste would remain onsite, covered only by a thin cap. The
citizens of our small community had been fighting to get our site fully
cleaned up in a manner that would protect the health and welfare of our
people imputably. Gould, the owner of the site, has stated since the
80's that they will only agree to cap the hazardous waste--not to clean
it up. Although the Borough of Throop had spent almost $1.5 million to
prove to EPA that a ``cap'' is not appropriate, EPA has refused to
listen. EPA has repeatedly bowed to Gould's ``demands'', has
deliberately withheld or covered up information agreed to with Gould,
and mislead us. When we heard about the National Ombudsman, Robert J.
Martin's involvement in the Tarpon Springs, Florida Site, we went to
Senators Arlen Specter and Rick Santorum and asked for their assistance
to get National Ombudsman Martin to review our case. Mr. Martin's
presence in Throop, along with Chief Investigator Hugh Kaufman marked
the first time our concerns were listened to and acted upon.
The first Ombudsman hearing took place in August 2000. Following
that hearing, interrogatories were sent. The results were amazing. We
found out there were over 240 potentially responsible parties,
including the Federal Government, who had financial liability for
cleaning up the site besides Gould. We further learned that Gould
received millions of dollars from the Government and other private
parties, as well as numerous liability policies. We also found out the
specifics of a secret amendment to the Consent Order, which changed the
requirement of temporary storage of contaminated soil onsite to
permanent entombment. Through the National Ombudsman's geologist,
Douglas Bell's discussions with our engineering consultants, Gannett-
Fleming, we finally found someone to give credence to our concerns
about mine subsidence and the impact of a potential mine fire on the
site. As the investigation continued we were called to Philadelphia to
meet with EPA Region III Administrator, Bradley Campbell. He listened
to our concerns and told us he would wait for the recommendations from
the Ombudsman before making a final decision. Then suddenly in December
2000 a final decision was handed down on the Marjol Site. It no longer
called for any guaranteed removal, only what would not fit under the
cap. It also no longer called for solidification of the remaining
contaminants under the cap. It also came out before the Ombudsman had
an opportunity to complete his work and make his recommendation to EPA.
Recommendations EPA had promised to listen to. Needless to say we were
shocked. Then on January 5, 2001, this case, and every other National
Ombudsman case, was suspended, until ``clear and consistent direction''
was received from EPA Management. EPA Management initiated blatant
interference with the National Ombudsman cases, including Marjol. Among
other things EPA prohibited the National Ombudsman's Chief
Investigator, Hugh Kaufman, from helping the Ombudsman and attempted to
have an Inspector General official, with a conflict of interest, review
the case. All of this was done throughout 2001 over the strong
objection of Senators Specter and Santorum. We hit another stone wall.
The Pennsylvania delegation communicated with EPA Administrator
Christine Todd Whitman, asking EPA to allow Ombudsman Martin to
complete his work on the Marjol Site without further hindrance. The
delegation met with Administrator Whitman on March 8, 2001 and received
assurances that Ombudsman Martin would receive staffing and other
resources immediately to proceed with his work. The EPA decision for
the Marjol Site was on hold. Despite promises not to hinder the
Ombudsman, EPA Management and the EPA Inspector General proceeded to
unilaterally detail an investigator from the EPA Office of Inspector
General to perform the National Ombudsman Marjol Investigation. This
was done without notice, consultation, or approval of the National
Ombudsman, even though the individual had a known potential conflict of
interest. The Pennsylvania delegation has continued to try to intervene
to get EPA to keep its promises to them and our community to no avail.
As recently as February 2002, National Ombudsman Martin and his Chief
Investigator Hugh Kaufman held the second round of hearings on the
Marjol Case. This time EPA failed to participate in the Ombudsman
process. One of the many new revelations that came out of that hearing
was the fact that EPA has continued to lie to the community of Throop
and active officials by falsely stating that the Site could not be
cleaned up under the Superfund program. And on goes the saga.
The Independent National Ombudsman's office within the EPA plays an
important role. It serves as a watchdog for the citizens and as
backstop to ensure that the best decisions are being made for their
community. Trust in the process is heightened when people know they
have an ``independent Ombudsman'' to closely examine the agency
decisions. My concern is to ensure that the National Ombudsman's office
be resurrected to allow it to continue to operate in a transparent way
and provide meaningful assistance to local communities, like Throop,
when EPA falters as it has in our case. EPA officials have publicly
assured us of their full support for the National Ombudsman's efforts.
Their actions suggest otherwise. No government official who supposedly
works for us and is paid by us should be afraid to have their decisions
subjected to public and substantive Ombudsman scrutiny.
The National Ombudsman Martin's work on the Marjol Site was
essential in exposing the following problems. The Ombudsman's
investigation found withheld documents; secret agreements between Gould
and EPA; they questioned the EPA's choice of Resource Conservation
Recovery Act (RCRA) as a remediation process; they questioned the EPA's
use of authority to allow regulations and permitting processes to be
avoided. I would also like to mention the questioning of the EPA's
``sound science'', that allows a remediation of a hazardous waste site,
that has lead levels at 250,000 PPM as well as Polychlorinated-
Biphenyl's (PCB's) and Poly aromatic Hydrocarbons (PAH's),to be
abandoned in the middle of a residential community; that is adjacent to
the Lackawanna River, and on a site that has continuing mine subsidence
and the potential for mine fires, with EPA's official recommendation of
only a thin cap.
The General Accounting Office (GAO) issued a report in April and
July 2001 concerning the EPA's handling of the Ombudsman office. They
concluded that EPA did not provide the Ombudsman with sufficient
independence and that the EPA treated their Ombudsman much less
independently than did other Federal agencies. They felt he should be
allowed to choose his own staff, supervise them and manage his own
budget. The GAO also said he should report to the Administrator and
Congress like all other Federal Ombudsman. Senators and Congressman
have expressed their support. Citizens and communities all over the
United States have agreed. Thousands of signatures have been collected,
and Federal Register comments were provided in 2001. Yet to no avail.
As a matter of fact, all of their recommendations are covered in Senate
Bill 606. Christine Todd Whitman refused to listen. She
mischaracterized the GAO report and used that mischaracterization to
fold the National Ombudsman under the Inspector General. She has
ignored the pleas of the people. She has ignored the GAO
recommendations. She has ignored the Senators and Congressman. She has
boycotted meetings and ratified Region III's boycotting of our recent
National Ombudsman hearing. Please stop this injustice and help us to
regain our faith in the government in a time when it is most needed.
Truth and honesty must prevail.
The National Ombudsman Office is where we can have our complaints
and concerns heard. He is a public advocate. Mr. Martin and his staff,
Mr. Kaufman and Mr. Bell, did their best for many communities even
though their hands were tied. I ask that you meet with Administrator
Whitman and ask her to reconstitute the National Ombudsman Office under
Robert Martin and pass S. 606 so that no EPA Administrator in the
future can harm American communities as Christine Whitman has done. You
are our last hope.
__________
American Bar Association,
Washington, DC., July 2, 2002.
Hon. James M. Jeffords,
Chairman, Committtee on Environment and Public Works,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman: On behalf of the American Bar Association
(``ABA'') and its more than 400,000 members throughout the country, I
write to express our support for the greater use of ombuds\1\ to
receive, review, and resolve complaints involving public and private
entities and of your committee's efforts to clarify the role of the EPA
Ombudsman. Accordingly, we are pleased to submit these comments
regarding S. 606, the ``Ombudsman Reauthorization Act of 2002,'' and we
ask that this letter and attachment be included in the record of the
June 25, 2002, hearing regarding this legislation.
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\1\ The term ombuds in this letter is intended to encompass all
other forms of the word such as ombudsperson, ombuds officers, and
ombudsman.
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S. 606 instructs the EPA Administrator to establish the Office of
the Ombudsman of the Environmental Protection Agency (EPA) and then
defines the duties, powers, and responsibilities of the ombudsman. As
the ABA examined the establishment of ombuds in Federal, State, and
local governments, academic institutions, and private organizations, it
found that the role of the ombuds in these entities, how they function,
and the issues they address vary widely and significantly. Individuals
who come to ombuds for help cannot know what to expect, and the offices
may be established in ways that compromise their effectiveness. In
August 2001, the ABA House of Delegates adopted a formal policy
endorsing Standards for the Establishment and Operation of Ombuds
Offices (ABA Standards). Attached for your consideration is a copy of
the ABA's resolution and report. The resolution expresses the ABA's
official policy; the accompanying report is included for informational
purposes only.
The ABA adopted this policy to provide advice and guidance on the
structure and operation of ombuds offices so that ombuds may better
fulfill their functions and so that individuals who avail themselves of
their aid may do so with greater confidence in the integrity of the
process. All ombuds must operate with certain basic authorities and
essential characteristics. The Standards clarify that independence,
impartiality in conducting inquiries and investigations, and
confidentiality are essential characteristics of all ombuds.
THE ROLE OF THE OMBUDSMAN
An ombuds is a person who is authorized to receive complaints or
questions confidentially about alleged acts, omissions, improprieties,
and broader, systemic problems within the ombuds' defined jurisdiction
and to address, investigate or otherwise examine these issues
independently and impartially. The ABA believes that in order to
properly fulfill its important functions, the ombuds must be given the
appropriate power and authority.
S. 606 contains a number of useful provisions designed to create a
strong and effective EPA Ombudsman office. In particular, the ABA
supports the provisions of S. 606 authorizing the ombudsman to examine
records and documents (Sec. 2008(d)(2) and (3)) and requiring the
ombudsman to publish periodic reports on the status of complaints filed
with the ombudsman (Sec. 2008(e)(4)). The ABA also supports the
provision granting the ombudsman the discretion to initiate action
without receiving a complaint or question (Sec. 2008(d)(1)). While
these provisions are useful as far as they go, the ABA believes that S.
606 should be amended to grant the ombudsman greater discretion in
determining whether to accept or act on a particular complaint or
question, because the ombudsman is in the best position to determine
whether a complaint has any merit. The ABA also suggests that the
committee amend S. 606 to expressly authorize the ombudsman to initiate
litigation when necessary to enforce a subpoena or to otherwise enforce
or protect the responsibilities of the office.
The ABA Standards state that an ombuds office should be established
by a legislative enactment or publicly available written document
``which clearly sets forth the role and jurisdiction of the ombuds''
and which authorizes the ombuds to engage in a variety of enumerated
activities. To clearly set forth the role of the ombudsman, the ABA
also recommends that S. 606 state whether the EPA Ombudsman is a
``classical'' or ``advocate'' ombuds. A classical ombuds operates in
the public sector addressing issues raised by the general public or
internally, usually concerning the actions or policies of government
entities or individuals. An advocate ombuds, like a classical,
evaluates claims objectively but is authorized or required to advocate
on behalf of individuals or groups found to be aggrieved and may issue
reports to the legislature or a specific agency. In addition to stating
whether the EPA Ombudsman is a classical or advocate ombuds, S. 606
should also more clearly enumerate the activities that the ombudsman is
expected to perform.
Although an ombuds should be granted clear and appropriate powers,
the ABA also believes that in order to ensure the ombuds' independence,
impartiality, and confidentiality, it is necessary to establish certain
limitations on the ombuds' authority. An ombuds works outside of line
management structures and has no direct power to compel any decision.
An ombuds should not, nor should an entity expect or authorize an
ombuds to make, change, or set aside a law, policy, or administrative/
managerial decision nor to directly compel an entity or any person to
make those changes. While an ombuds may expedite and facilitate the
resolution of a complaint and recommend individual and systemic
changes, an ombuds cannot compel an entity to implement the
recommendations.
The ABA also believes that when defining the powers of an ombuds,
care must be taken to protect the rights of those who may be affected
by the actions of the ombuds. Furthermore, since due process rights
could well be implicated, it would not be appropriate for the ombuds'
review to serve as the final determination for any disciplinary
activity or civil action, nor as a determination of a violation of law
or policy. An ombuds' inquiry or investigation is not a substitute for
an administrative or judicial proceeding, and in such proceedings, the
deciding official should not consider the ombuds' review or
recommendations to be controlling. Instead, the deciding official must
conduct a de novo examination of the matter.
The ABA supports those provisions in S. 606 that seek to protect
the existing due process rights of claimants, including the provisions
stating that the legislation shall not limit any remedy or right of
appeal (Sec. 2008(g)(1)) and the provision stating that the
establishment of the EPA Office of Ombudsman shall not affect any
procedure concerning grievances, appeals, or administrative matters
under the legislation or any other law, including regulations (Sec.
2008(g)(2)). In order to further protect the due process rights of the
parties, however, the ABA recommends that S. 606 be amended to
expressly state that the ombuds' review shall not make, change, or set
aside a law, policy or administrative decision, make binding decisions
or determine rights, or directly compel an entity or any person to
implement the ombuds' recommendations. In addition, S. 606 should
expressly state that the ombuds should not accept jurisdiction over an
issue that is currently pending in a legal forum unless all parties and
the presiding officer in that action explicitly consent, and it should
state that an ombuds' inquiry or investigation does not substitute for
an administrative or judicial proceeding.
ESSENTIAL CHARACTERISTICS
The ABA believes that in order to permit an ombuds to properly
discharge his or her duties, an ombuds program must promote the core
qualities of independence, impartiality, and confidentiality. Although
various provisions of S. 606 seek to address these issues regarding the
EPA Office of Ombudsman, the ABA encourages the committee to amend the
bill to reflect these characteristics more fully. Great care has to be
exercised in establishing the structure of the ombuds to ensure that
the independence, impartiality, and confidentiality essential to the
ombuds are, in fact, achieved.
Independence
To be credible and effective, the office of the ombuds must be
independent in its structure, function, and appearance. Independence
means that the ombuds must be free from interference in the legitimate
performance of duties. In assessing whether an ombuds is independent,
one key factor to consider is whether anyone subject to the ombuds'
jurisdiction or anyone directly responsible for a person under the
ombuds' jurisdiction can control or limit the ombuds' performance of
duties. In addition, other key factors are whether such a person can,
for retaliatory purposes, (1) eliminate the office, (2) remove the
ombuds, or (3) reduce the office's budget or resources.
As currently written, S. 606 includes a number of provisions aimed
at promoting the independence of the EPA Ombudsman. In particular, S.
606 grants the EPA Ombudsman the power to investigate any action of the
EPA's Assistant Administrator for Solid Waste and Emergency Response on
receipt of a complaint or in the ombudsman's discretion (Sec. 2008
(d)(1)) and the power to examine any documents of the EPA and enter and
inspect, without notice, any property under the EPA's administrative
jurisdiction (Sec. 2008(d)(2)). In addition, S. 606 grants the EPA
Ombudsman authority to request that the EPA Inspector General subpoena
material documents or testimony (Sec. 2008(d)(3)), as well as the
authority to administer a budget (Sec. 2008(d)(6)), appoint Associate
Ombudsmen and evaluate and carry out personnel actions (Sec.
2008(e)(1)), and maintain contact information different from other EPA
offices (Sec. 2008(e)(2)), among other things.
While these provisions will help promote the independence of the
EPA Ombudsman, the ABA is concerned that they do not go far enough to
guarantee the independence of the ombudsman. For example, the ABA is
concerned that in order to subpoena persons or records, the ombudsman
must request the assistance of the EPA Inspector General (Sec.
2008(d)(3)). Because we believe that this is inconsistent with the
ombudsman's independence, we encourage the committee to amend S. 606 to
provide the ombudsman with independent subpoena authority. In addition,
the ABA encourages the committee to consider other amendments that
would contribute to the ombudsman's independence including new
provisions that would create a set term of office, access to and
resources for independent legal advice and counsel, prohibition of
disciplinary actions against the ombudsman for performing the duties of
the office, and removal only for cause.
Impartiality
The ABA also believes that in order to be effective, an ombuds must
be impartial. The ombuds' structural independence is the foundation
upon which the ombuds' impartiality is built. If the ombuds is
independent from line management and does not have administrative or
other obligations or functions, the ombuds can act in an impartial
manner. Acting in an impartial manner, as a threshold matter, means
that the ombuds is free from initial bias and conflicts of interest in
conducting inquiries and investigations. Impartiality does not,
however, preclude the ombuds from developing an interest in securing
the changes that are deemed necessary where the process demonstrates a
need for change or from otherwise being an advocate on behalf of a
designated constituency when the ombuds position is created as an
``advocate'' ombuds. The ombuds, therefore, has the authority to become
an advocate for change where the results of the inquiry or
investigation demonstrate the need for such change.
While S. 606 provides some structural independence, as noted above,
the bill is silent with regard to the type of ombuds being created. The
ABA encourages the clarification of the intended ombuds role by
specifying whether the EPA Ombudsman is to be a classical or an
advocate ombuds, and hence, whether the EPA Ombudsman is to be totally
impartial or is to serve as an advocate for the designated
constituency.
(3) Confidentiality
The American Bar Association also believes that confidentiality is
an essential characteristic of ombuds that permits the process to work
effectively. Confidentiality promotes disclosure from reluctant
complainants, elicits candid discussions by all parties, and provides
an increased level of protection against retaliation to or by any
party.
Confidentiality must extend to all communications with the ombuds
and all notes and records maintained by the ombuds in the performance
of assigned duties. It begins when a communication is initiated with
the ombuds to schedule an appointment or make a complaint or inquiry.
Confidentiality may apply to the source of the communications and to
the content of the communications. Individuals may not want the ombuds
to disclose their identity but may want the ombuds to act on the
information presented. An ombuds should discuss confidentiality and any
exceptions with individuals who communicate with the office.
S. 606 contains a sweeping confidentiality provision that states
that the EPA Ombudsman ``shall maintain as confidential and privileged
any and all communications concerning any matter pending, and the
identities of any parties or witnesses appearing before the
Ombudsman.'' (Sec. 2008(d)(5)). Unfortunately, this provision may be
overly broad and appears to conflict with the Administrative Dispute
Resolution Act (ADRA).\2\
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\2\ 5 U.S.C. Sec. 574
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In creating a confidentiality section in ADRA that is the most
detailed of any Federal or State ADR statute, Congress explicitly
stated its intent to give parties in federally related ADR proceedings
assurance that their dispute resolution communications would generally
be immune from discovery. Congress went on to define these protections
in detail. ADRA forbids neutrals from disclosing such communications,
and also states that the neutrals shall not ``be compelled to
disclose'' the communications. The existing statute also guarantees
certain due process protections, including prior notice to parties in
any case where protected data are sought, an opportunity for the
parties to contest disclosure before a Federal court, and a decision by
the court reached under a balancing test based on specific statutory
criteria. The ADRA goes on to say that a dispute resolution
communication which is between a neutral and a party and which may not
be disclosed under the confidentiality provisions of the ADRA shall
also be exempt from disclosure under the Freedom of Information Act.
While the ABA supports the general confidentiality principle
outlined in S. 606, we believe that Section 2008(d)(5) should be
amended to comport with the confidentiality provisions of the ADRA.
ADRA represents a careful balance between open government, oversight,
and confidentiality, in which Congress makes clear the standards and
procedures that should govern whenever disputed issues of
confidentiality arise in agency-related ADR, which includes the
activities of an agency ombuds. The ADRA's stated intent is clear: to
assure parties to ADR proceedings involving Federal programs that
communications they make in those proceedings will not later be used
against them. Its language precluding voluntary and compulsory
disclosure is explicit, its coverage broad, its exceptions narrowly
drawn, and its procedures spelled out in detail.
Congress established the EPA Ombudsman to provide help to the
public in resolving issues and concerns about EPA's solid and hazardous
waste programs. Because an ombuds works for the resolution of an
individual issue and, where necessary, makes recommendations for the
improvement of the general administration of the entity, establishing
an ombuds is appropriate. In order to be credible and effective, the
ABA believes that the EPA Office of the Ombudsman must be truly
independent in structure, form, and appearance; must be impartial; and
must promote and protect confidentiality consistent with the ADRA. In
order to ensure the effectiveness of the EPA Ombudsman, we urge you to
adopt the amendments outlined above.
Thank you for considering the views of the ABA on these important
matters. If you would like more information regarding the ABA's
positions on these issues, please contact our legislative counsel for
administrative law issues, Larson Frisby, at (202) 662-1098.
Sincerely,
Robert D. Evans.
______
Approved by the ABA House of Delegates
107D
August 7, 2001
American Bar Association, Section of Administrative Law and Regulatory
Practice, Section of Dispute Resolution, Section of Business Law,
Section of State and Local Government Law, Government and Public Sector
Lawyers Division, Senior Lawyers Division, Commission on the Legal
Problems of the Elderly, National Conference of Administrative Law
Judges, Standing Committee on Environmental Law
RECOMMENDATION*
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*The ``Recommendation'' and the ``Standards,'' but not the attached
``Report,'' constitute official ABA policy.
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RESOLVED, that the American Bar Association supports the greater
use of ``ombuds'' to receive, review, and resolve complaints involving
public and private entities.
FURTHER RESOLVED, that the American Bar Association endorses the
Standards for the Establishment and Operation of Ombuds Offices dated
August 2001.
STANDARDS\1\ FOR THE ESTABLISHMENT AND OPERATION OF OMBUDS OFFICES
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\1\ These standards expand on a 1969 ABA resolution to address
independence, impartiality, and confidentiality as essential
characteristics of ombuds who serve internal constituents, ombuds in
the private sector, and ombuds who also serve as advocates for
designated populations.
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PREAMBLE
Ombuds\2\ receive complaints and questions from individuals
concerning people within an entity or the functioning of an entity.
They work for the resolution of particular issues and, where
appropriate, make recommendations for the improvement of the general
administration of the entities they serve. Ombuds protect: the
legitimate interests and rights of individuals with respect to each
other; individual rights against the excesses of public and private
bureaucracies; and those who are affected by and those who work within
these organizations.
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\2\ The term ombuds in this report is intended to encompass all
other forms of the word, such as ombudsperson, ombuds officer, and
ombudsman, a Swedish word meaning agent or representative. The use of
ombuds here is not intended to discourage others from using other
terms.
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Federal, State and local governments, academic institutions, for
profit businesses, non-profit organizations, and sub-units of these
entities have established ombuds offices, but with enormous variation
in their duties and structures. Ombuds offices so established may be
placed in several categories: A Classical Ombuds operates in the public
sector addressing issues raised by the general public or internally,
usually concerning the actions or policies of government entities or
individuals. An Organizational Ombuds may be located in either the
public or private sector and ordinarily addresses problems presented by
members, employees, or contractors of an entity concerning its actions
or policies. Both types may conduct inquiries or investigations and
suggest modifications in policies or procedures. An Advocate Ombuds may
be located in either the public or private sector and like the others
evaluates claims objectively but is authorized or required to advocate
on behalf of individuals or groups found to be aggrieved.
As a result of the various types of offices and the proliferation
of different processes by which the offices operate, individuals who
come to the ombuds office for assistance may not know what to expect,
and the offices may be established in ways that compromise their
effectiveness. These standards were developed to provide advice and
guidance on the structure and operation of ombuds offices so that
ombuds may better fulfill their functions and so that individuals who
avail themselves of their aid may do so with greater confidence in the
integrity of the process. Practical and political considerations may
require variations from these Standards, but it is urged that such
variations be eliminated over time.
The essential characteristics of an ombuds are:
<bullet> idependence
<bullet> impartiality in conducting inquiries and investigations,
and
<bullet> confidentiality.
ESTABLISHMENT AND OPERATIONS
A. An entity undertaking to establish an ombuds should do so
pursuant to a legislative enactment or a publicly available written
policy (the ``charter'') which clearly sets forth the role and
jurisdiction of the ombuds and which authorizes the ombuds to:
(1) receive complaints and questions about alleged acts, omissions,
improprieties, and systemic problems within the ombuds's jurisdiction
as defined in the charter establishing the office
(2) exercise discretion to accept or decline to act on a complaint
or question
(3) act on the ombuds's own initiative to address issues within the
ombuds's prescribed jurisdiction
(4) operate by fair and timely procedures to aid in the just
resolution of a complaint or problem
(5) gather relevant information
(6) resolve issues at the most appropriate level of the entity
(7) function by such means as:
(a) conducting an inquiry
(b) investigating and reporting findings
(c) developing, evaluating, and discussing options available
to affected individuals
(d) facilitating, negotiating, and mediating
(e) making recommendations for the resolution of an
individual complaint or a systemic problem to those persons who
have the authority to act upon them
(f) identifying complaint patterns and trends
(g) educating
(h) issuing periodic reports, and
(i) advocating on behalf of affected individuals or groups
when specifically authorized by the charter
(8) initiate litigation to enforce or protect the authority of the
office as defined by the charter, as otherwise provided by these
standards, or as required by law.
QUALIFICATIONS
B. An ombuds should be a person of recognized knowledge, judgment,
objectivity, and integrity. The establishing entity should provide the
ombuds with relevant education and the periodic updating of the
ombuds's qualifications.
INDEPENDENCE, IMPARTIALITY, AND CONFIDENTIALITY
C. To ensure the effective operation of an ombuds, an entity should
authorize the ombuds to operate consistently with the following
essential characteristics. Entities that have established ombuds
offices that lack appropriate safeguards to maintain these
characteristics should take prompt steps to remedy any such deficiency.
(1) Independence. The ombuds is and appears to be free from
interference in the legitimate performance of duties and independent
from control, limitation, or a penalty imposed for retaliatory purposes
by an official of the appointing entity or by a person who may be the
subject of a complaint or inquiry.
In assessing whether an ombuds is independent in structure,
function, and appearance, the following factors are important: whether
anyone subject to the ombuds's jurisdiction or anyone directly
responsible for a person under the ombuds's jurisdiction (a) can
control or limit the ombuds's performance of assigned duties or (b)
can, for retaliatory purposes, (1) eliminate the office, (2) remove the
ombuds, or (3) reduce the budget or resources of the office.
(2) Impartiality in Conducting Inquiries and Investigations. The
ombuds conducts inquiries and investigations in an impartial manner,
free from initial bias and conflicts of interest. Impartiality does not
preclude the ombuds from developing an interest in securing changes
that are deemed necessary as a result of the process, nor from
otherwise being an advocate on behalf of a designated constituency. The
ombuds may become an advocate within the entity for change where the
process demonstrates a need for it.
(3) Confidentiality. An ombuds does not disclose and is not
required to disclose any information provided in confidence, except to
address an imminent risk of serious harm. Records pertaining to a
complaint, inquiry, or investigation are confidential and not subject
to disclosure outside the ombuds's office. An ombuds does not reveal
the identity of a complainant without that person's express consent. An
ombuds may, however, at the ombuds's discretion disclose non-
confidential information and may disclose confidential information so
long as doing so does not reveal its source. An ombuds should discuss
any exceptions to the ombuds's maintaining confidentiality with the
source of the information.\3\
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\3\ A classical ombuds should not be required to discuss
confidentiality with government officials and employees when applying
this paragraph to the extent that an applicable statute makes clear
that such an individual may not withhold information from the ombuds
and that such a person has no reasonable expectation of confidentiality
with respect to anything that person provides to the ombuds.
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LIMITATIONS ON THE OMBUDS' AUTHORITY
D. An ombuds should not, nor should an entity expect or authorize
an ombuds to:
(1) make, change or set aside a law, policy, or administrative
decision
(2) make binding decisions or determine rights
(3) directly compel an entity or any person to implement the
ombuds's recommendations
(4) conduct an investigation that substitutes for administrative or
judicial proceedings
(5) accept jurisdiction over an issue that is currently pending in
a legal forum unless all parties and the presiding officer in that
action explicitly consent
(6) address any issue arising under a collective bargaining
agreement or which falls within the purview of any existing Federal,
State, or local labor or employment law, rule, or regulation, unless
the ombuds is authorized to do so by the collective bargaining
agreement or unless the collective bargaining representative and the
employing entity jointly agree to allow the ombuds to do so, or if
there is no collective bargaining representative, the employer
specifically authorizes the ombuds to do so, or
(7) act in a manner inconsistent with the grant of and limitations
on the jurisdiction of the office when discharging the duties of the
office of ombuds.
REMOVAL FROM OFFICE
E. The charter that establishes the office of the ombuds should
also provide for the discipline or removal of the ombuds from office
for good cause by means of a fair procedure.
NOTICE
F. These standards do not address the issue whether a communication
to the ombuds will be deemed notice to anyone else including any entity
in or for which the ombuds acts. Important legal rights and liabilities
may be affected by the notice issue.
CLASSICAL OMBUDS
G. A classical ombuds is a public sector ombuds who receives
complaints from the general public or internally and addresses actions
and failures to act of a government agency, official, or public
employee. In addition to and in clarification of the standards
contained in Paragraphs A-F, a classical ombuds:
(1) should be authorized to conduct independent and impartial
investigations into matters within the prescribed jurisdiction of the
office
(2) should have the power to issue subpoenas for testimony and
evidence with respect to investigating allegations within the
jurisdiction of the office
(3) should be authorized to issue public reports
(4) should be authorized to advocate for change both within the
entity and publicly
(5) should, if the ombuds has general jurisdiction over two or more
agencies, be established by legislation\4\ and be viewed as a part of
and report to the legislative branch of government.
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\4\ The 1969 ABA Resolution, which remains ABA policy, provided
that a classical ombuds should be ``appoint[ed] by the legislative body
or . . . by the executive with confirmation by the designated
proportion of the legislative body, preferably more than a majority,
such as two thirds.''
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ORGANIZATIONAL OMBUDS
H. An organizational ombuds facilitates fair and equitable
resolutions of concerns that arise within the entity. In addition to
and in clarification of the standards contained in Paragraphs A-F, an
organizational ombuds should:
(1) be authorized to undertake inquiries and function by informal
processes as specified by the charter
(2) be authorized to conduct independent and impartial inquiries
into matters within the prescribed jurisdiction of the office
(3) be authorized to issue reports
(4) be authorized to advocate for change within the entity.
ADVOCATE OMBUDS
I. An advocate ombuds serves as an advocate on behalf of a
population that is designated in the charter. In addition to and in
clarification of the standards described in Paragraphs A-F, an advocate
ombuds should:
(1) have a basic understanding of the nature and role of advocacy
(2) provide information, advice, and assistance to members of the
constituency
(3) evaluate the complainant's claim objectively and advocate for
change relief when the facts support the claim
(4) be authorized to represent the interests of the designated
population with respect to policies implemented or adopted by the
establishing entity, government agencies, or other organizations as
defined by the charter, and
(5) be authorized to initiate action in an administrative,
judicial, or legislative forum when the facts warrant.
______
Report
The American Bar Association (ABA) adopted a resolution in 1969
recommending that State and local governments consider establishing
ombuds who would be authorized to inquire into administrative action
and to make public criticism. That policy also recommended that the
statute or ordinance creating the ombuds contain 12 essential points.
The ABA then adopted a resolution in 1971 recommending that the Federal
Government experiment with the establishment of ombudsmen for certain
geographical areas, specific agencies, or for limited phases of Federal
activities.
Over the past three decades, and particularly recently, an
extraordinary growth in the number and type of ombuds\5\ has taken
place. Congress has established several ombuds in various programs. In
addition to specific legislation concerning ombuds, the Administrative
Dispute Resolution Act authorizes Federal agencies to use ``ombuds.''
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\5\ The term ombuds in this report is intended to encompass all
other forms of the word such as ombudsperson, ombuds officers, and
ombudsman, a Swedish word meaning agent or representative. The use of
ombuds here is not intended to discourage others from using other
terms.
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Federal, State and local governments, academic institutions, for
profit businesses, non-profit organizations, and sub-units of these
entities have established ombuds offices, but with enormous variation
in their duties and structures. Ombuds offices so established may be
placed in several categories. A Classical Ombuds operates in the public
sector addressing issues raised by the general public or internally,
usually concerning the actions or policies of government entities or
individuals. An Organizational Ombuds may be located in either the
public or private sector and ordinarily addresses problems presented by
members, employees, or contractors of an entity concerning its actions
or policies. Both types may conduct inquiries or investigations and
suggest modifications in policies or procedures. An Advocate Ombuds may
be located in either the public or private sector, and like the others
evaluates claims objectively but is authorized or required to advocate
on behalf of individuals or groups found to be aggrieved.
As a result of the various types of offices and the proliferation
of different processes by which the offices operate, individuals who
come to the ombuds's office for assistance may not know what to expect,
and the offices may be established in ways that compromise their
effectiveness. These standards were developed to provide advice and
guidance on the structure and operation of ombuds offices to the end
that ombuds may better fulfill their functions and so that individuals
who avail themselves of their aid may do so with greater confidence in
the integrity of the process.
The ABA's Board of Governors establishes legislative and
governmental priorities annually. Based on its importance to society,
to the practice of law, and in the administration of justice, one of
the year 2001 priorities is alternative dispute resolution. The ABA
supports the greater use of alternative dispute resolution by private
parties, government agencies, and the courts ``as a necessary and
welcome component of America's civil justice system, so long as all
parties' legal rights and remedies are protected.'' As a protector of
individual rights against the excesses of public and private
bureaucracies, an ombuds receives complaints and questions from
individuals concerning the functioning of an entity, works for the
resolution of particular issues, and where necessary, makes
recommendations for the improvement of the general administration of
the entity. As an independent, impartial, and confidential complaint
handler, an ombuds serves as an alternative means of dispute resolution
a means by which issues may be raised, considered, and resolved.
Consistent with ABA priorities, the Sections of Administrative Law
and Regulatory Practice and of Dispute Resolution have worked together
and appointed a steering committee consisting of representatives from
the Coalition of Federal Ombudsmen, the National Association of State
Ombudsman Programs, the International Ombudsman Institute (IOI
subsequently withdrew), The Ombudsman Association, the United States
Ombudsman Association, and the University and College Ombuds
Association, as well as other experts in the field. The committee
consulted with numerous ombuds from Federal, State, and local agencies,
academic institutions, companies, and non-profit organizations.
Further, it solicited, received, and considered comments from the
international community of ombuds. Based on the steering committee's
work and following extensive consultation with the Commission on Legal
Problems of the Elderly, the Section of Business Law, and the Section
of Labor and Employment Law, the Sections of Administrative Law and
Regulatory Practice and Dispute Resolution have developed a resolution
encouraging the use of ombuds in the public and private sectors that
adhere to the Standards for the Establishment and Operation of the
Ombudsman Offices (Standards).
The Resolution and Standards broaden the ABA's existing policy to
address ombuds who are appointed within government, academia, and the
private sector, and who respond to complaints from individuals from
within and outside the entity. Further, they clarify the means by which
various types of ombuds operate.
For Federal, State, and local governments that want to create a
Classical ombuds who would be authorized to address, investigate or
inquire into administrative action and to criticize agencies,
officials, and public employees, the ABA's 1969 policy continue to
serve as a model.\6\ This Resolution and the Standards clarify that
independence, impartiality in conducting inquiries and investigations,
and confidentiality are essential characteristics of all ombuds. Ombuds
must operate consistently with these essential characteristics to
discharge the duties of the office effectively. Practical and political
considerations may require variations from these Standards, but it is
urged that such variations be eliminated over time.
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\6\ The 12 essential characteristics that were identified in the
original ABA resolution continue to have vitality and remain ABA
policy. They are: (1) authority of the ombudsman to criticize all
agencies, officials, and public employees except courts and their
personnel, legislative bodies and their personnel, and the chief
executive and his personal staff; (2) independence of the ombudsman
from control by any other officer, except for his responsibility to the
legislative body; (3) appointment by the legislative body or
appointment by the executive with confirmation by the designated
proportion of the legislative body, preferably more than a majority of
the legislative body, such as two thirds; (4) independence of the
ombudsman through a long term, not less than 5 years, with freedom from
removal except for cause, determined by more than a majority of the
legislative body; (5) a high salary equivalent to that of a designated
top officer; (6) freedom of the ombudsman to employ his own assistants
and to delegate to them, without restrictions of civil service and
classifications acts; (7) freedom of the ombudsman to investigate any
act or failure to act by any agency, official, or public employee; (8)
access of the ombudsman to all public records he finds relevant to an
investigation; (9) authority to inquire into fairness, correctness of
findings, motivation, adequacy of reasons, efficiency, and procedural
propriety of any action or inaction by any agency, official, or public
employee; (10) discretionary power to determine what complaints to
investigate and to determine what criticisms to make or to publicize;
(11) opportunity for any agency, official, or public employee
criticized by the ombudsman to have advance notice of the criticism and
to publish with the criticism an answering statement; and, (12)
immunity of the ombudsman and his staff from civil liability on account
of official action.
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THE RESOLUTION
The resolution recognizes the value of the ombuds in the public and
private sectors. For example, the Organizational Ombuds in one
prominent company resolves several hundred workplace matters every
year; that experience is echoed by other companies and increasingly by
government agencies and academic institutions. Classical Ombuds have
investigated and issued reports on important issues that need to be
addressed by the body politic; a recent prominent example concerned
prison conditions. Advocate Ombuds have been successful in protecting
vulnerable populations, such as children and residents of nursing
homes. As a result, the Resolution recognizes the contribution these
offices make in providing a means by which complaints are received, the
underlying facts developed through an informal inquiry or a more formal
investigation, and those complaints found to have merit are suitably
addressed in a means that fits the situation. The Resolution,
therefore, supports the greater use of ombuds.
The Resolution also recognizes that entities that create ombuds
offices should adhere to the Standards for the establishment and
operations of the ombuds offices. The fundamental underlying premise of
this resolution is that all ombuds must operate with certain basic
authorities and essential characteristics. The effort here is to
provide practical advice and guidance on the structure and operation of
ombuds offices so that ombuds may better fulfill their functions and so
that individuals who avail themselves of their aid may do so with
greater confidence in the integrity of the process.
STANDARDS
Section A. Establishment and Operations
An ombuds is a person who is authorized to receive complaints or
questions confidentially about alleged acts, omissions, improprieties,
and broader, systemic problems within the ombuds's defined jurisdiction
and to address, investigate, or otherwise examine these issues
independently and impartially.
Importantly, the ombuds's jurisdiction who complains and who or
what are complained about needs to be defined in advance, setting out
the scope of the duties and authority. The ombuds's jurisdiction must
be defined in an official act that establishes the office, which is
appropriately called the ``charter'' in the standards. The charter may
be a legislative enactment\7\ or a publicly available written policy.
The jurisdiction may be limited to a defined constituency or
population. For example, a State ombuds may receive complaints or
questions from any person, while a university student ombuds may
receive complaints or questions only from students at that university,
and a long-term care ombuds has jurisdiction only to resolve complaints
initiated by or on behalf of residents receiving long-term care.
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\7\ The ``legislative enactment'' might be in a constitution,
statute, local government charter, or local ordinance depending on the
establishing jurisdiction.
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The ombuds determines whether to accept or to act on a particular
complaint or question. The ombuds also has the discretion to initiate
action without receiving a complaint or question. An ombuds may
determine that the complaint is without merit. Or, an ombuds may
receive a complaint or question on a specific topic and conduct an
inquiry on a broader or different scope.
Appropriate subjects for an ombuds to review include allegations of
unfairness, maladministration, abuse of power, abuse of discretion,
discourteous behavior or incivility, inappropriate application of law
or policy, inefficiency, decision unsupported by fact, and illegal or
inappropriate behavior. It is essential that the ombuds operate by fair
procedures to aid in the just resolution of the matter. Ombuds need
access to all information relevant to a complaint or a question so that
the review is fair and credible, and the charter should authorize
access to all relevant information. The entity must be responsible for
protecting those seeking assistance from or providing information to
the ombuds from personal, professional, or economic retaliation, loss
of privacy, or loss of relationships.
An ombuds may make a formal or informal report of results and
recommendations stemming from a review or investigation. If such a
report is issued, the ombuds should generally consult with an
individual or group prior to issuing a report critical of that
individual or group, and include their comments with the report.
Moreover, the ombuds should communicate the outcome, conclusion or
resolution of a complaint or an inquiry to the complainant and may also
communicate with other concerned entities or individuals.
In addition, to ensure the office's accountability, an ombuds
should issue and publish periodic reports summarizing the ombuds's
findings and activities. This may include statistical information about
the number of contacts with the ombuds, subjects that the ombuds
addressed, evaluation by complainants, etc. These reports may be done
annually, biannually, or more frequently.
In receiving complaints or questions and examining problems, the
ombuds may use a variety of dispute resolution and other techniques.
These processes include: conducting an inquiry; investigating and
reporting findings; developing, evaluating, and discussing the options
which may be available for remedies or redress; facilitating,
negotiating, and mediating; making recommendations for the resolution
of an individual complaint or a systemic problem to those persons who
have authority to act on them; identifying complaint patterns and
trends; and educating.
As necessary, the ombuds may advocate on behalf of affected
individuals or groups when authorized by the charter and the situation
warrants that action. An ombuds may initiate litigation to enforce or
protect the authority of the office. For example, if an ombuds issues a
subpoena and the subpoena is ignored, the ombuds should be able to
initiate litigation to compel a response. In addition, an ombuds may
initiate litigation as otherwise provided by these standards or as
required by law. For example, an advocate ombuds should be authorized
to initiate action in an administrative, judicial, or legislative forum
when the facts warrant.
An ombuds uses the powers of reason and persuasion to help resolve
matters. The goal of the ombuds's efforts is to provide a path to
fairness and justice. Therefore, the ombuds's quest is to seek the fair
and just resolution of the matter.
SECTION B. QUALIFICATIONS
An ombuds should be a person of recognized knowledge, judgment,
objectivity, and integrity. The establishing entity should provide the
ombuds with relevant education and the periodic updating of the
ombuds's qualifications.
SECTION C. THE ESSENTIAL CHARACTERISTICS
The original 1969 resolution contained 12 essentials for the ombuds
described in it. These have been distilled and expanded in the
Standards. The core qualities are independence, impartiality in
conducting inquiries and investigations, and confidentiality. Without
them, an ombuds cannot discharge the duties of the office effectively.
The Standards therefore provide that an entity should authorize an
ombuds it establishes to operate consistently with these essential
characteristics to ensure the effective operation of the duties of the
office. The Standards also recognize, however, that some entities may
have already established offices that lack appropriate safeguards to
comply fully with the characteristics. The Standards then provide that
such entities should take prompt steps to remedy any such deficiency.
1. Independence in structure, function, and appearance
To be credible and effective, the office of the ombuds is
independent in its structure, function, and appearance. Independence
means that the ombuds is free from interference in the legitimate
performance of duties and independent from control, limitation, or a
penalty imposed for retaliatory purposes by an official of the
appointing entity or by a person who may be the subject of a complaint
or inquiry. In assessing whether an ombuds is independent, the
following factors are important: whether anyone subject to the ombuds's
jurisdiction or anyone directly responsible for a person under the
ombuds's jurisdiction (a) can control or limit the ombuds's performance
of duties, or (b) can, for retaliatory purposes, (1) eliminate the
office, (2) remove the ombuds, or (3) reduce the office's budget or
resources.
Historically, ombuds were created in parliamentary systems and were
established in the constitution or by statute, appointed by the
legislative body, and had a guarantee of independence from the control
of any other officer, except for responsibility to the legislative
body. This structure remains a model for ensuring independence, and a
number of States have followed it. In more recent times, however,
ombuds have been created by public officials without legislation, by
regulation or decree, and by private entities. Ensuring the
independence of the ombuds is equally important in these instances, but
will require other measures.\8\
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\8\ In the United States since the late 1960's, a number of other
ways have been developed to ensure independence. Examples of approaches
that contribute to an ombuds's independence include: establishment of
the office through a formal act of a legislature or official governing
body of an organization; establishment outside the entity over which
the ombuds has jurisdiction; a direct reporting relationship to a
legislative body, the official governing body of an organization or the
chief executive; designation as a neutral who is unaligned and
objective; a broadly defined jurisdiction not limited to one part of
the entity or one subject matter; appointment or removal of the ombuds
free of influence from potential subjects of a complaint or inquiry; a
set term of office; no reporting relationship to someone with assigned
duties that conflict with the ombuds's role; no assignment of duties
other than that of the ombuds function; specifically allocated budget
and sufficient resources to perform the function; freedom to appoint,
direct, and remove staff; sufficient stature in the organization to be
taken seriously by senior officials; placement in an organization at
the highest possible level and at least above the heads of units likely
to generate the most complaints; discretion to initiate and pursue
complaints and inquiries; access to and resources for independent legal
advice and counsel; prohibition of disciplinary actions against the
ombuds for performing the duties of the office; removal only for cause;
provision of an employment contract that the ombuds will receive a
significant severance provision if terminated without good cause.
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Great care has to be exercised in establishing the ombuds structure
to ensure that the independence described in the resolution is, in
fact, achieved. Choosing which of these approaches are appropriate will
depend on the environment. The instrument used to establish
independence should be the strongest available and should guarantee the
independence of the ombuds from control by any other person.
The 12 essential characteristics of the 1969 ABA Resolution
continue to serve as the model for an ombuds reporting to the
legislative branch of government who is authorized to investigate
administrative action, help provide legislative oversight, and offer
criticism of agencies from an external perspective. While there are a
number of potential avenues of achieving independence, experience on
the State and local level has demonstrated rather consistently that
unless there is a structural independence for these ombuds akin to the
1969 ABA Resolution that independence will not be accomplished and the
office will not be able to function as envisioned in this resolution
and the accompanying standards.
Structuring independence for ombuds who serve inside organizations
and classical ombuds who address issues within a single program or
agency require similar care. These elements should be in the charter.
The ombuds position should be explicitly defined and established as a
matter of organizational policy, authorized at the highest levels of
the organization; the ombuds should have access to the chief executive
officer, senior officers and the oversight body or board of directors
of the organization; the ombuds should also have access to all
information within the organization, except as restricted by law; and
the ombuds should have access to resources for independent legal advice
and counsel.
The Standards recognize that at this time there are ombuds who have
not achieved this goal. The Standards urge and anticipate that these
variations will be eliminated over time.
2. Impartiality in conducting inquiries and investigations
The ombuds's structural independence is the foundation upon which
the ombuds's impartiality is built. If the ombuds is independent from
line management and does not have administrative or other obligations
or functions, the ombuds can act in an impartial manner.
Acting in an impartial manner, as a threshold matter, means that
the ombuds is free from initial bias and conflicts of interest in
conducting inquiries and investigations. Acting in an impartial manner
also requires that the ombuds be authorized to gather facts from
relevant sources and apply relevant policies, guidelines, and laws,
considering the rights and interests of all affected parties within the
jurisdiction, to identify appropriate actions to address or resolve the
issue.
The ombuds conducts inquiries and investigations in an impartial
manner. An ombuds may determine that a complaint is without merit and
close the inquiry or investigation without further action. If the
ombuds finds that the complaint has merit, the ombuds makes
recommendations to the entity and/or seeks resolution for a fair
outcome. Impartiality does not, however, preclude the ombuds from
developing an interest in securing the changes that are deemed
necessary where the process demonstrates a need for change nor from
otherwise being an advocate on behalf of a designated constituency. The
ombuds therefore has the authority to become an advocate for change
where the results of the inquiry or investigation demonstrate the need
for such change. For example, when an ombuds identifies a systemic
problem, it would be appropriate for the ombuds to advocate for changes
to correct the problem. An advocate ombuds may initiate action and
therefore serve as an advocate on behalf of a designated population
with respect to a broad range of issues and on specific matters when
the individual or group is found to be aggrieved. But, when determining
the facts, the ombuds must act impartially.
3. Confidentiality
Confidentiality is an essential characteristic of ombuds that
permits the process to work effectively. Confidentiality promotes
disclosure from reluctant complainants, elicits candid discussions by
all parties, and provides an increased level of protection against
retaliation to or by any party. Confidentiality is a further factor
that distinguishes ombuds from others who receive and consider
complaints such as elected officials, human resource personnel,
government officials, and ethics officers.
Confidentiality extends to all communications with the ombuds\9\
and to all notes and records maintained by the ombuds in the
performance of assigned duties. It begins when a communication is
initiated with the ombuds to schedule an appointment or make a
complaint or inquiry. Confidentiality may apply to the source of the
communications and to the content of the communications. Individuals
may not want the ombuds to disclose their identity but may want the
ombuds to act on the information presented. Therefore, an ombuds does
not reveal the identity of a complainant without that person's consent.
The ombuds may, however, disclose confidential information so long as
doing so does not compromise the identity of the person who supplied
it. It should be emphasized that the decision whether or not to
disclose this information belongs to the ombuds, and it would not be
appropriate for anyone to demand that the ombuds disclose such
information, except as required by statute. To the extent that an
ombuds may not maintain confidentiality, the ombuds should discuss
those exceptions with individuals who communicate with the office.
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\9\ For example, the Model Ombudsman Statute for State Governments
that was developed by the Ombudsman Committee of the Section of
Administrative Law and Regulatory Practice in 1974 directs the
ombudsman to ``maintain secrecy in respect to all matters and the
identities of the complainants or witnesses coming before him.'' See,
Bernard Frank, State Ombudsman Legislation in the United States, 29 U.
Miami L.R. 379 (1975).
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The authorizing entity should allow the ombuds to provide
confidentiality of the identity of persons who communicate with the
ombuds and of information provided in confidence. The authorizing
entity should not seek information relating to the identity of
complainants nor seek access to the ombuds's notes and records.
Providing for confidentiality and protection from subpoena in a
statute is particularly important because, where statutes have not
provided confidentiality, State courts have not consistently recognized
an ombuds privilege nor granted protective orders to preserve the
confidentiality of communication made to ombuds. One Federal district
court, Shabazz v. Scurr, 662 F. Supp. 90 (S.D. Iowa 1987), recognized a
limited privilege under Federal law for an ombuds with a State
statutory privilege. The only Federal circuit court to have addressed
the issue, Carman v. McDonnell Douglas Corp., 114 F. 3d 790 (8th Cir.
1997), failed to recognize an ombuds privilege.
Short of explicit statutory authority, ombuds offices should adopt
written policies that provide the fullest confidentiality within the
law. These policies should be publicly available, broadly disseminated,
and widely publicized. Several existing model ombuds acts and policies
of ombuds organizations address confidentiality.
An ombuds will rarely, if ever, be privy to something that no one
else knows. Therefore, providing confidentiality protection to the
ombuds allows the ombuds to perform assigned duties while at the same
time, society continues to have access to the underlying facts. As
evidenced by the statutes and policies that have been developed, there
may be instances in which other, competing societal interests dictate
that the ombuds must disclose some information. If an individual speaks
about intending harm to himself or herself or others, an entity may
require an ombuds to disclose this information. Moreover, an ombuds may
be compelled by protective service laws or professional reporting
requirements to report suspected abuse.
Section D. Limitations on the Ombuds' authority
An ombuds works outside of line management structures and has no
direct power to compel any decision. The office is established by the
charter with the stature to engender trust and to help resolve
complaints at the most appropriate level of the entity. To ensure the
ombuds' independence, impartiality, and confidentiality, it is
necessary to establish certain limitations on the ombuds' authority.
An ombuds should not, nor should an entity expect or authorize an
ombuds to make, change, or set aside a law, policy or administrative/
managerial decision, nor to directly compel an entity or any person to
make those changes. While an ombuds may expedite and facilitate the
resolution of a complaint and recommend individual and systemic
changes, an ombuds cannot compel an entity to implement the
recommendations.
It is essential that an ombuds operate by fair procedures which
means that the actions taken will likely vary with the nature of the
concern, and that care must be taken to protect the rights of those who
may be affected by the actions of an ombuds. Furthermore, since due
process rights could well be implicated, it would not be appropriate
for the ombuds's review to serve as the final determination for any
disciplinary activity or civil action, nor as a determination of a
violation of law or policy. An ombuds's inquiry or investigation does
not substitute for an administrative or judicial proceeding. In an
administrative or judicial proceeding, the deciding official should not
consider the ombuds's review or recommendations to be controlling.
Rather, the deciding official must conduct a de novo examination of the
matter.
Moreover, it would not be appropriate for the ombuds to act as an
appellate forum when a complainant is dissatisfied with the results in
a formal adjudicatory or administrative proceeding. Thus, an ombuds
should not take up a specific issue that is pending in a legal forum
without the concurrence of the parties and the presiding officer. It
may, however, be fully appropriate for an ombuds to inquire into
matters that are related to a controversy that is in litigation so long
as they are not the subject of the suit.
Further, an ombuds should not address, nor should an entity expect
or authorize an ombuds to address, any issue that is the subject of a
collective bargaining agreement. There are two potential exceptions to
this general prohibition: An ombuds may address issues concerning
employees who have a lawfully designated collective bargaining
agreement if: (1) the ombuds is authorized to do so by the collective
bargaining agreement covering the employees or (2) the collective
bargaining representative and the employing entity jointly agree to
allow the ombuds to do so.
Even where there is no collective bargaining agreement, the
involvement of an ombuds in matters that fall within the purview of
labor or employment laws raises sensitive issues that may implicate the
rights and liabilities of the parties under those laws, such as the
issue of notice mentioned in Section F of the Standards. Accordingly,
the Standards contemplate that an employer, in establishing an ombuds
office, should consider its overall policies for maintaining compliance
with those laws, and determine in that light whether to authorize the
ombuds to address those matters. That recommendation is in no way
intended to suggest, however, that a policy of authorizing an ombuds to
address labor- or employment-related matters should be a suspect or
disfavored practice. On the contrary, involvement in such matters is a
role typically performed by Organizational Ombuds, and the growing
reliance on ombuds at institutions across the country is largely
attributable to the broad satisfaction with ombuds' fulfillment of that
role on the part of both management and the affected employees. Thus,
the language in the Standards indicating that an employer should
specifically authorize an ombuds to address labor- or employment-
related matters does not require any detailed or ponderous recitals.
Rather, it should be read as simply a particularized application of the
generalized expectation in Section A of the Standards that the
jurisdiction of an ombuds office should be identified in its charter.
Finally, an ombuds should not act in a manner inconsistent with the
grant and limitations on the jurisdiction of the office when
discharging the duties of the office of ombuds.
Section E. Removal from office
Entities which establish ombuds offices need to ensure their
accountability. Therefore, the charter that establishes the office of
ombuds should also provide for the discipline or removal of the ombuds
for good cause by means of a fair procedure.
Section F. Notice
When meeting with an ombuds, people discuss allegations of
unfairness, maladministration, abuse of power, and other sensitive
subjects. They may fear personal, professional, or economic
retaliation, loss of privacy, and loss of relationships. Faced with
sexual or racial harassment, for example, many people will quit, get
sick, or suffer in silence. People often need help in developing ways
to report or act so that these matters will be considered and resolved.
Communications must be protected if people are to be willing to
visit and speak candidly with the ombuds. As noted above, some ombuds
have confidentiality protected by law. Under these Standards, entities
that establish an ombuds should authorize the ombuds to operate with
confidentiality and independence. If an ombuds functions in accordance
with these Standards by operating with confidentiality and
independence, it can be strongly argued that management lacks the
control over day to day operations that is essential for someone to be
deemed an agent. Likewise, there would be a strong argument that any
communication to the ombuds should not be imputed to any other person,
including the entity. Rather, the ombuds would be deemed independent of
the entity itself for these purposes. Thus, it would not be appropriate
for the ombuds to accept notice on the entity's behalf with respect to
any alleged grievance.
However, some ombuds offices that have been instituted outside the
framework of these Standards do not operate with confidentiality or
independence. In some cases, management's control over the ombuds may
be so extensive as to weaken substantially the argument that the office
cannot be deemed to be an agent of management. This circumstance would,
in turn, give force to the argument that a communication to the ombuds
should be imputed to management.
Because the law in this area is continuing to evolve, it is unclear
what a court might decide with regard to notice in the wide range of
circumstances that may arise. These Standards, therefore, do not
address the issue of whether a communication to the ombuds will be
deemed notice to anyone, including any entity in or for which the
ombuds acts. Important legal rights and liabilities may, however, be
affected by the resolution of that issue. Accordingly, an ombuds
should, in appropriate circumstances, advise an individual that, unless
the individual authorizes the ombuds to inform the management of an
entity about a matter, the entity may not be deemed to have notice of
the matter and such failure to give notice to the entity about the
matter might impair the individual's legal rights.
Section G. Classical Ombuds
A Classical Ombuds operates in the public sector addressing issues
raised by the general public or internally, usually concerning the
actions or policies of government entities or individuals. A Classical
Ombuds may conduct inquiries or investigations and suggest
modifications in policies or procedures. To ensure access to all
pertinent facts, a Classical Ombuds should be granted subpoena power
for testimony and evidence relevant to an investigation. In addition, a
Classical Ombuds should be authorized to issues public reports and to
advocate for change both within the entity and publicly. To ensure the
essential independence, the standards provide that whenever a classical
ombuds has general jurisdiction over two or more agencies, that
position should be established by legislative action and the ombuds
should be regarded as part of the legislative branch of government.
Thus, for example, it would be appropriate for an agency to establish
an ombuds who has jurisdiction over a single program, but the agency
should provide the essential independence in the charter establishing
the program. To the extent that an agency has established ombuds
offices with jurisdiction over a single agency or program but that do
not comply with the essential characteristics as described in Paragraph
C of the Standards, it should take prompt steps to remedy any
deficiency and to provide the requisite independence. If, however, the
ombuds has jurisdiction over multiple agencies, experience has shown
that it is extraordinarily difficult to provide independence if the
ombuds reports to someone in the executive branch.
Section H. Organizational Ombuds
An Organizational Ombuds ordinarily addresses problems presented by
members, employees or contractors of an entity concerning its actions
or policies. An Organizational Ombuds may undertake inquiries and
advocate for modifications in policies or procedures.
Section I. Advocate Ombuds
The Advocate Ombuds may be located in either the public or private
sectors, and like the Classical and Organizational Ombuds, also
evaluates claims objectively. However, unlike other ombuds, the
Advocate Ombuds is authorized or required to advocate on behalf of
individuals or groups found to be aggrieved. Because of the unique
role, the Advocate Ombuds must have a basic understanding of the nature
and role of advocacy. In addition, the Advocate Ombuds should provide
information, advice, and assistance to members of the population
identified in the law or publicly available written policy. Further,
the Advocate Ombuds represents the interests of a designated population
with respect to policies implemented or adopted by the establishing
entity and government agencies.
CONCLUSION
Government, academia, and the private sector are answering demands
for fairness and responsiveness by establishing ombuds. Ombuds receive
complaints and questions concerning the administration of the
establishing entity. However, the basic authorities of these persons
called ombuds and the independence, impartiality, and confidentiality
with which they operate vary markedly. An ombuds works for the
resolution of a particular issue, and where necessary, makes
recommendations for the improvement of the general administration of
the entity. To be credible and effective, the office of the ombuds must
be independent in structure, form, and appearance. The ombuds's
structural independence is the foundation upon which the ombuds's
impartiality is built. The ombuds must conduct investigations and
inquiries in an impartial manner, free from initial bias and conflicts
of interest. Confidentiality is a widely accepted characteristic of
ombuds, which helps ombuds perform the functions of the office. Without
these Standards, individuals may be reluctant to seek the ombuds's
assistance because of fear of personal, professional, or economic
retaliation, loss of privacy, and loss of relationships. This
Resolution and the Standards for the Establishment and Operation of
Ombuds Offices are appropriate now to ensure that ombuds can protect
individual rights against the excesses of public and private
bureaucracies.
Respectfully submitted,
Ronald M. Levin, Chair,
Section of Administrative Law and Regulatory Practice.
Benjamin F. Overton, Chair,
Section of Dispute Resolution.
Pi-Pa-TAG, Inc.
June 21, 2002.
Hon. James M. Jeffords,
Chair, U.S. Senate Environment and Public Works Committee,
Washington, DC.
Dear Senator Jeffords: On August 30, 2000, a St. Petersburg Times
Editorial began with the following words:
``No one will ever accuse the U.S. Environmental Protection Agency
of learning a lesson the easy way. While seeking judicial approval of a
controversial cleanup plan for the Stauffer Chemical Superfund Site,
EPA officials offended U.S. Rep. Mike Bilirakis, fought with the
Florida Department of Environmental Protection, ignored Pinellas County
health officials and angered Tarpon Springs residents.''
The editorial then went on to describe a few of the many events
which have led to the loss of public confidence in this Federal agency.
As secretary for Pi-Pa-TAG, Inc., a community group holding an EPA
Technical Assistance Grant for the Stauffer Chemical Superfund Site, I
would like to tell you our story, as it applies to the EPA National
Ombudsman Office.
stauffer chemical superfund site
The State of Florida rests on a base made up largely of limestone,
a soft rock, which on exposure to water filtering through it,
dissolves, forming craters, caverns and tunnels. As Florida is a watery
place, surrounded by the Gulf of Mexico and the Atlantic Ocean, and
replenished heavily with water during the summer rainy season, the
conditions for these geological transformations are both regular and
frequent. In specific areas, the formation of sinkholes is very common.
At the heart of this foundation formed of limestone, clay and sand
lies the Aquifer System which serves as the drinking water supply for
the vast majority of Florida residents.
The Stauffer Chemical Superfund Site is located in Tarpon Springs,
Florida, one of the areas which has often been subject to the formation
of sinkholes. Situated in the midst of a thriving residential
community, the site sits on the bank of a small waterway, the Anclote
River, just before it empties into the Gulf of Mexico. This phosphate
ore processing plant closed down in 1981, but left behind huge amounts
of chemical and radiological processing wastes, buried in drums, poured
into unlined pits, and sometimes directly onto the ground. For years,
these contaminants have washed into the Anclote River and filtered down
toward the main Aquifer System.
Stauffer Management Company (SMC), with the approval of EPA Region
4 personnel, proposed containing all the contaminants onsite, rather
than removing them.
They did this without first completing the geophysical studies
needed to properly characterize the site and to determine the potential
for sinkholes. They did this without first completing the
hydrogeological studies needed to determine exactly which directions
the already contaminated water in the superficial layers of the Aquifer
System was flowing. They did this without even determining whether or
not the semi-cement mixture, which is known to break down upon exposure
to salt water, and which was intended to be mixed with the contaminated
soil below the water table, could keep the contaminants from leaching
out.
Residents repeatedly questioned the safety of these plans, and were
told that their questions would be answered later. What they were not
told was that EPA Region 4 and SMC planned to go ahead and sign a
Consent Decree in court, which would establish the containment method,
chosen on the basis of inadequate data, as the valid cleanup plan for
this site. While EPA Region 4 would continue to communicate with local
residents, the important decisions would have already been finalized.
Involved residents were outraged. The community was being
effectively barred from any further meaningful participation in the
process that would determine the fate of precious community resources.
EPA was asked to withdraw the Consent Decree until crucial studies had
been completed and valid scientific questions had been answered.
They refused.
OMBUDSMAN INVESTIGATION
Three months later, in December 1999, the EPA National Ombudsman
Office began an investigation into issues related to the Stauffer
Chemical Superfund Site. As a result of information brought to light as
part of the ongoing Ombudsman Investigation:
(1) EPA Region 4 & Stauffer Management Company (SMC) agreed to
withdraw the Consent Decree from the Department of Justice, and to
begin drawing up workplans for the additional geophysical and
hydrogeological studies which need to be completed for accurate site
characterization. These workplans were to be reviewed in the course of
the Ombudsman Investigation.
(2) EPA Region 4 agreed to include the U.S. Geological Survey
(USGS) as reviewers of the workplans and additional study data, when it
was completed.
(3) EPA Region 4 & Stauffer Management Company (SMC) agreed to
honor the State of Florida's Arsenic Soil Cleanup Level for industrial
use (3.7 ppm), which is much more protective than the level initially
proposed (21.1 ppm).
(4) It was revealed that corporate and financial maneuverings had
recently taken place, and that EPA Region 4 had allowed a ``new
company'' to sign the Amended Consent Decree, without first performing
a thorough investigation into the financial standing and reliability of
the new company to assume the responsibility of covering the costs of
the cleanup.
Residents in the community and their elected officials believed
that much progress was being made. After years of conflict and delays,
communication was finally being facilitated between all the involved
parties, and the Superfund process was finally getting back on track.
Then, in June 2000, the system fell apart.
First, the Ombudsman Office's Request for Funding Approval, in
order to continue with the ongoing investigation, was denied. It was
only reinstated due to the intercession of Congressman Bilirakis and
elected officials from other affected sites.
Second, agency personnel refused to cooperate with the ombudsman
investigation. In June 2000, EPA Region 4 staff walked out of a public
meeting, refusing to answer any further questions.
Third, the agency denied the Ombudsman the right to maintain his
own staff. In December 2000, the Chief Investigator in the Ombudsman
Office was denied permission to do any more work for that office, and
the Ombudsman was informed (or reminded) that he did not have the right
or the authority to control his own staff. With the expulsion of the
Chief Investigator, who was intimately involved in the cases, the
office struggled and foundered, and ultimately had to suspend work on
most of their current investigations.
Two years have now passed since what we refer to as ``The Walk Out
Meeting'' occurred, the occasion when EPA's initial resistance to the
Ombudsman Investigation in our community gave way to outright
obstruction, to be followed by the eventual crippling of that office.
After a brief period of hope, when through the Ombudsman Hearings we
saw EPA finally becoming responsive to the concerns expressed by the
TAG Advisors, the Florida Department of Environmental Protection
(FDEP), the Pinellas County Health Dept. and members of the community,
we now have no faith in this agency.
The Independence of the EPA National Ombudsman Office has been a
fantasy.
GAO REPORT
In July 2001, the General Accounting Office (GAO) issued a Report
entitled: ``EPA's National and Regional Ombudsmen Do Not Have
Sufficient Independence''
On the first page of the GAO report, it states that, ``In
particular, ombudsmen help Federal agencies be more responsive to
persons who believe that their concerns have not been dealt with fully
or fairly through normal problem-solving channels.''
And why would normal, problem-solving channels not be sufficient?
Perhaps there are many reasons. One important reason has to do with
what Professor Larry B. Hill (Professor of Political Science,
University of Oklahoma) refers to as, ``the institution's relevance to
the issue of the emerging relationship between bureaucracy and
democracy.'' While on the one hand, we extol the importance and
benefits to society which can only be gained through participatory
democracy, the immense size and complexity of our governmental
structures threaten to dwarf and crowd out the role played by
individual citizens. The fortress-like structure of a bureaucracy can
become impenetrable to private citizens. A bureaucracy can sometimes
function with the cold, unreasoning efficiency of a machine which has
been rigidly programmed, remaining unresponsive to any new or
unfamiliar input.
For this reason alone, there need to be mechanisms which can, in
the words of the GAO Report, ``provide the public an informal and
accessible avenue of redress''.
EPA Administrator Christie Whitman's decision to transfer the EPA
National Ombudsman Office to a position within the EPA Inspector
General's Office is not a step in the right direction. Faced with a GAO
Report indicating the need for Independent Ombudsmen, the agency seems
to be desperately attempting to avoid establishing a truly Independent
Office, by announcing this pseudo-compliance with the recommendations
made in the GAO Report.
We do not believe that this move would establish an Independent
Ombudsman Office--by a long shot. It does not give the Ombudsman
control over prioritizing and choosing cases, over deciding what level
of involvement the Ombudsman Office will have in each case chosen, over
how the Ombudsman Office budget will be allocated, or over the hiring,
supervising and dismissing of office staff.
EPA has stated that the Inspector General Office is the only
independent office within the agency. Our response to this is that it
is time for them to establish another one.
B 606
To these ends, we respectfully request that you give your full
support to the Ombudsman Reauthorization Act (SB 606).
This piece of legislation is well-deserving of complete bipartisan
support, as everyone can agree with the concept that, in a democracy,
government agencies must remain accountable to the citizens they were
created to serve.
An Independent National EPA Ombudsman Office can be one of the most
valuable and powerful tools we are able to establish in seeking to
ensure that the Federal EPA exhibits this accountability. It would be a
commitment to maintaining a system of Quality Control, and where
needed, would help to legitimize the Superfund Process in communities
where the agency has assumed jurisdiction for remediating toxic waste
sites.
ST. PETERSBURG TIMES EDITORIAL
The St. Petersburg Times ends their August 30, 2000 Editorial with
the words,
We now know there is no substitute for vigilance in the
Superfund process.
Please support this Ombudsman Office which has acknowledged public
vigilance and worked to safeguard, not only community resources, but
also the process of democracy-in-action at the community level.
Thank you for your consideration of this matter of such great
importance to affected citizens.
Respectfully,
Heather Malinowski,
Secretary, Pi-Pa-TAG, Inc.
__________
U.S. Ombudsman Association,
Nashville, TN, June 19, 2002.
Hon. James M. Jeffords,
Chairperson, Environment and Public Works Committee,
U.S. Senate,
Washington, DC.
Re: Written Testimony for Hearing of Committee on Environment and
Public Works June 25, 2002
Dear Senator Jeffords: As President of the United States Ombudsman
Association (USOA), I am submitting this written testimony in regard to
S. 606, the bill which proposes the reauthorization of the Office of
the Ombudsman of the Environmental Protection Agency. As our Nation's
oldest and largest organization of ombudsmen working in government to
address citizen complaints, the membership of the USOA includes
practicing ombudsmen at all levels of government, some of whom have
general jurisdiction, and others who have jurisdiction over a specified
subject matter or agency. (Detailed information regarding the USOA can
be found at the Association's website: http://www.usombudsman.org/.) As
a matter of good public policy, the USOA supports the establishment of
independent ombudsman's offices for the investigation and resolution of
complaints involving administrative agencies in government at all
levels. An ombudsman can serve as an independent office not only to
address individual concerns, but also to identify systemic problems and
recommend improvements in policies, practices, and procedures. An
ombudsman can also help in the important effort to provide public and,
indeed, legislative oversight of administrative agencies in government.
In view of recent developments regarding the operation of the EPA's
Ombudsman's Office, the USOA believes that it is critical that Congress
act now to reauthorize and strengthen that office. To the extent that
S. 606 would accomplish this end, the USOA supports that bill, in
principle. However, the USOA also believes that S. 606 will have to be
substantially changed from its present form, if the bill is to meet the
need for a truly independent and effective ombudsman in the EPA. Based
upon our collective years of experience as practicing ombudsmen in
government, we are writing today to offer our suggestions for
improvements to that bill.
Our Association believes that the most important element in the
design an effective ombudsman's office in government is structural
independence, that is, structurally separating the ombudsman from the
agency under the ombudsman's jurisdiction. Under S. 606 in its current
form, however, the EPA Ombudsman would continue be structurally
situated within the EPA. The EPA Ombudsman would report directly to the
EPA Administrator and would presumably be subject to being hired and
fired by that official. In addition, the Administrator would have
oversight authority to direct the work of the Ombudsman, including
activities and decisions related to investigations and reports. This
structure makes it extremely difficult for the Ombudsman to feel free
to criticize, when appropriate, the actions of the Administrator or
other officials under the Administrator's supervision. In light of
these features, the USOA is concerned that S. 606 in its current form
would not provide the EPA Ombudsman with the independence necessary for
that office to function effectively.
It is widely understood by students and practitioners of the
ombudsman institution in government that structural independence is a
critical element in the design of any effective ombudsman's office. Our
experience has shown that it is crucial that the ombudsman be protected
from the potential of interference by officials who might be
inconvenienced or embarrassed by the ombudsman's investigations and
criticisms. Indeed, we believe that the recent events involving the
previous EPA Ombudsman offer a textbook example of how administrators
will interfere with the operation of internal agency ombudsmen. Thus,
the USOA believes that, to the greatest extent possible, an ombudsman
in government should be structurally separated from the entities that
are subject to the ombudsman's review or investigations. This
independence allows the ombudsman to act, and to be viewed by the
public as acting, as an impartial official who reports findings and
recommendations based on an objective review of the facts and the
applicable law.
The USOA believes that the best way to make an ombudsman truly
independent is by situating the ombudsman's office in the legislative
branch of government. Indeed, the model for an ombudsman's office in
government that is internationally recognized as the preferred model is
one that situates the ombudsman in the legislative branch, as opposed
to making the ombudsman a part of the administrative agency itself.
This model has worked remarkably well, not only in scores of countries
around the world, but also in our country in the States of Alaska,
Arizona, Hawaii, Iowa and Nebraska. In light of this, the USOA would
recommend that Congress explore the possibility of changing S. 606 to
create a truly independent legislative ombudsman for the EPA, perhaps
by situating the office in the GAO.
If an arrangement situating the ombudsman in the legislative branch
is not viewed to be feasible, then our Association would recommend that
everything reasonably possible should be done to maximize an
ombudsman's independence within the agency where the office is
situated. To that end, the USOA would recommend that S. 606 be amended
by making the following changes:
Appointment of the Ombudsman.--We would suggest that the Ombudsman
should not be appointed by anyone within the EPA, the EPA Administrator
included. With that in mind, our Association would recommend that the
bill be amended to provide that, similarly to Inspectors General, the
EPA Ombudsman ``shall be appointed by the President, by and with the
advice and consent of the Senate.'' We would also suggest that S. 606
be amended to specify that the EPA Ombudsman shall be appointed for a
specific term of years, as is typically done with ombudsmen in
government.
Removal of the Ombudsman.--We would also suggest that S. 606 be
amended to make it clear that neither the EPA Administrator, nor any
other officer in the EPA, for that matter, shall have the authority to
remove the Ombudsman from office. Specifically, we would recommend that
S. 606 be amended to provide that the Ombudsman ``may be removed from
office only by the President,'' and that the ``President shall
communicate the reasons for any such removal to both Houses of
Congress.''
Interference with the Ombudsman.--While S. 606 does require
``cooperation'' with the EPA Ombudsman, the USOA believes that,
consistent with provisions of Federal law relating to Inspectors
General, there also needs to be a specific clause in the bill
forbidding interference with the Ombudsman. In that regard, we would
recommend the addition of a provision stipulating that ``neither the
Administrator nor any other officer or employee of the Environmental
Protection Agency shall prevent or prohibit the Ombudsman from
initiating, carrying out, or completing any investigation, or from
issuing any report, or from issuing any subpoena during the course of
any investigation.''
Again, our Association would stress that we believe that the best
approach to protecting the independence of the Ombudsman is through
situating the office in the legislative branch of government. The
recommendations outlined above are offered only as an alternative, if
it is determined that a true legislative ombudsman for the EPA is not
feasible.
In addition to these recommendations on the subject of ombudsman
independence, the USOA has a few additional suggestions for changes
that we feel would improve S. 606. Specifically, the USOA would further
recommend that S. 606 be amended by making the following changes:
Access to the Administrator.--The USOA believes that an agency
ombudsman, like an agency inspector general, should be guaranteed quick
and easy access to the chief executive of the agency. With that in
mind, our Association would suggest that a provision be added to S. 606
to specify ``the Ombudsman shall have direct and prompt access to the
Administrator, when necessary for any purpose pertaining to the
performance of functions and responsibilities under this Act.''
Subpoena Power.--As drafted, S. 606 requires the EPA Ombudsman to
ask the EPA Inspector General for the issuance of a subpoena needed in
connection with an Ombudsman's investigation. Typically, ombudsmen in
government have unilateral subpoena power. Our Association believes
that requiring the EPA Ombudsman to go through the Inspector General to
obtain a subpoena would invite the IG's office to second guess and,
perhaps, to interfere with Ombudsman investigations. As an alternative,
the USOA would suggest that Section 2008(d)(3) of S. 606 be amended to
state that ``in a case in which the Ombudsman experiences difficulty in
gathering information pertaining to an investigation conducted by the
Ombudsman, the Ombudsman may require by subpoena the production of all
information, documents, reports, answers, records, papers, and other
data and documentary evidence necessary in the performance of the
functions assigned to the Ombudsman by this Act, which subpoena, in the
case of contumacy or refusal to obey, shall be enforced by order of any
appropriate United States district court.''
Special Reports.--Section 2008(e)(4) of S. 606 requires the EPA
Ombudsman ``at least annually'' to publish a report ``on the status of
health and environmental concerns addressed in complaints and cases
brought before the Ombudsman.'' Typically, ombudsman legislation also
makes it clear that the ombudsman is empowered to publish special or
``critical'' reports, when the ombudsman deems it necessary to do so to
bring an issue to the attention of the public and the policymakers.
With that in mind, the USOA would suggest that Section 2008(e)(4) of S.
606 be amended to specify that ``the Ombudsman shall also be authorized
to publish such special reports as are, in the judgment of the
Ombudsman, necessary or desirable.''
In summary, the USOA enthusiastically supports action by Congress
to reauthorize and strengthen the EPA Ombudsman. In addition, the USOA
urges that, as S. 606 is being considered, Congress give particular
attention to changing the bill in ways that would maximize the
independence of the ombudsman to the extent feasible. Our Association
would suggest that this focus upon independence, together with the
other changes that we have outlined in this letter, would give the EPA
Ombudsman the best chance to function effectively.
If the USOA can provide any information or assistance as your
Committee considers and evaluates S. 606, then please contact either
Mr. Marshall Lux or me. The United States Ombudsman Association
appreciates and thanks you for the time and resources you are devoting
to this important issue.
Sincerely,
Robin K. Matsunaga,
President,
U.S. Ombudsman Association.
__________
Statement of L. Rogers and Antonia M. Hardy, Harrison, ID
Senate Environment and Public Works Committee. It is imperative
that the National EPA Ombudsman Office remain independent and free from
the bureaucracy and internal politics within any agency that can
hamper, manipulate, stall, or circumvent vital investigations. The
Independent National Ombudsman functions to insure protection of our
shared environment, of ecological and human health. Ombudsman
independence is a basic component of the checks and balances that
validate our democratic system, and continued independence certainly is
basic for insurance that public voice and options will be heard and
considered. We know from direct experience (with Region 10 EPA in the
Coeur d'Alene Basin Superfund) that continued Ombudsman independence is
absolutely essential. In addition, we assert that Robert Martin, in
particular, must be allowed to finish the open investigations. Without
his support and help, our grass-roots citizen group's voices within the
Basin Superfund would likely never even have begun to be heard.
Our particular issues center around a small but very integral
sliver of land within the Coeur d'Alene Basin, the now-abandoned 72-
mile Union Pacific Railroad spur line between Mullan and Plummer. This
abandoned line, which runs through the entire guts of the 1500 square
mile Basin, was just beginning to be investigated by Ombudsman Martin
when the changes within EPA happened. We believe that Martin's work
with our group must continue, especially since the 72-mile right-of-
way, highly contaminated by mine and railroad waste, is being converted
into a PRECEDENT SETTING CERCLA/SUPERFUND RESPONSE recreational trail
that will contain over 900 warning signs. Our group has submitted
scientific data to Ombudsman Martin, and we compiled 27 pages of
interrogatories which we submitted to him for investigation into Region
10 and the Bunker Hill Superfund. We believe that our rights as
citizen/stakeholders were circumvented, ignored, abused, and our faith
in EPA as the agency mandated to protect our human and environmental
health and welfare has been seriously compromised. We believe that only
with Ombudsman Independence can our truth be told.
We hold very dear our rights to have voice within our government.
We take very seriously our duties as citizens to exercise our voices.
We have spent years documenting what we believe are serious problems
within the Coeur d'Alene Basin Superfund: inadequate testing,
inaccurate descriptions within EPA documents, double-speak, even fatal-
flaw information that, we believe, should be considered seriously
before any EPA ROD (Record of Decision) is released this July. Yet, our
voices continue to be ignored. In fact, the EPA-appointed contact
person, assigned to answer citizen questions and concerns, has not
answered our urgent and legitimate citizen/stakeholder questions in
over 3 months. In fact, since the inception of this precedent trail
plan which, we assert, hides tons of improperly characterized
contamination, our voices have been systematically ignored and excluded
from processes affecting directly our lives, our environment, our land.
Without an Independent Ombudsman, we do not see how EPA can be held
accountable to adhere to its own CERCLA/SARA mandated Public Policy
dictates.
We support the Idaho Delegation's legislation to keep the Ombudsman
independent. At the same time, we would urge that Ombudsman Martin be
the one to continue his open investigations, including Union Pacific
Railroad. To do otherwise would, we believe, be a misuse of the
millions of tax dollars as well as the millions of hours of work ours
included already invested into the Basin Superfund. Martin knows the
problems, and he must be allowed to finish what he has begun.
In closing, during these times of change, when more and more
immoral and questionably legal actions and schemes come to light, we
think it is imperative to insure public voice, public scrutiny, public
accountability. And we do not mean a semblance of public inclusion, but
we mean genuine voice. After all, it is WE, The People, who,
ultimately, are the ones affected directly by those decisions made in
Washington D.C., and whose lives and well-being are entrusted to EPA.
And so, as representatives of ``The People'', we urge you to reinstate
immediately the Independent Ombudsman, and give Robert Martin the
authority to complete his investigations.
Thank you for the opportunity to address your committee.
__________
Statement of Barbara Miller, Silver Valley People's Action Coalition,
Kellog, ID
Senate Environment and Public Works Committee. God created a
natural order when he made the earth. The air we breathe and the soil
that we walk upon was not intended to do us harm. When that order is
disrupted and as severely as it has been in the area of Shoshone
County, otherwise known as the Silver Valley Bunker Hill Superfund
site, chaos, confusion, and adversity of health reign, even one hundred
years after the first reporting of the lead and heavy metal pollution.
Silver Valley People's Action Coalition is a sixteen-year-old non-
profit organization established in Shoshone County and whose main
mission has been to resolve the issues of environmental injustice
resulting in a century of renegade mining operations.
It was SV PAC who first requested the investigation of Bob Martin
EPA National Ombudsman when technical advisors for the nations second
largest Superfund site found that after 10 years of remediation that
Region Ten EPA had failed to remove lead and other heavy metal
pollutants such as cadmium, arsenic, zinc, mercury and give the 5000
citizens living in four towns of the 21 sq. mile site a quality
cleanup. It was determined in 1998 that even though EPA had the
technology to do so, ``the cleanup at Bunker Hill is inadequate and
residents are still at risk'', Dr. Joel Hirschhorn, Technical Advisor
for the Bunker Hill Superfund site, Kellogg, Id. In his report
reviewing the studies done at Bunker Hill, in 1986 when SV PAC first
became involved it was reported that the Federal Government had spent
somewhere in the area of $25,000,000 on studies of the site and not one
shovel full of dirt had been removed! The report goes on to state that
the lesser quality cleanup had been negotiated by EPA with the mining
companies years before.
As a result of the site not being adequately remediated, today more
than 300,000 citizens in a 1500 sq. mile area beginning at the Montana
border and extending into Washington State are awaiting a Record of
Decision for alternatives to cleaning up lead and mine waste that has
traveled downstream. One of every four children tested outside the 21
sq. mile ``box'' is found to have an elevated lead and are now lead
poisoned. Numerous children in the Bunker Hill site are also still
being tested a routine began in about 1974 and are found with elevated
lead levels. Tragically nothing is done to properly diagnose or treat
these children and the figures are being used by health officials to
say that the site is cleaned up. When in fact the Record of Decision
for the Bunker Hill site calls for the total removal of lead from the
interior of homes and schools. Homes where in a 1992 pilot study found
to have 2 to 50 times more lead in them than the yards that have been
replaced. To this day nothing has been done to remove the lead from the
interior of homes and unacceptable protocols to do testing in schools
has been only partially carried out.
In September 1998 SV PAC took these concerns to Region Ten who
agreed that 12 specific areas identified by the Technical Advisors
needed to be addressed for additional cleanup. At the same time it was
recommended to call upon Idaho's political delegation to assist with an
investigation to assure that the these areas targeted for cleanup were
indeed addressed by EPA. This is when then Cong. Crapo first cooperated
with our organization and the need for an Ombudsman investigation.
We are concerned at this time of Idaho's political leaders
involvement in this process after selecting a member of the special
interest mining group who has only been established in the area for
less than 2 years to speak on behalf of SB 606. The group she
represents is not only small in number but also has the backing of the
local newspaper owned by one of the PRP's of the Superfund site that
has no limits to the slander, lies and personal attacks directed at the
victims who suffer from lead poisoning, oppression and economic
depression brought on by the pollution. We live in fear of what is done
to us on a local front for speaking out and actively working with EPA
to bring the best possible cleanup and improved quality of life to our
families and even tourists.
It is because of conflicts such as this that necessitates the
importance for an independent National Ombudsman office to be
established. An Ombudsman office that is free from bureaucratic and
political pressures too often found in Superfund sites and communities
with extreme pollution and contamination. The Ombudsman's position
would maintain a fair, objective and impartial playing field for all of
the citizenry involved.
These are only some of the facts and problems arising from the
largest Superfund site in the Nation. These are reasons why SV PAC who
has been long invested and worked with EPA, politicians, other agencies
and most importantly the affected citizens support the permanent
establishment of the Ombudsman's office. Due to his high level of
commitment and impartiality in carrying out the work of the EPA
Ombudsman office, Bob Martin is the person who has the experience and
ability to fulfill the responsibilities of this office over the long
haul.
In closing we thank this committee for holding these hearings and
respectfully request that Robert J. Martin be reinstated as the
national ombudsman for the EPA allowing him to bring closure to hours
of work he has begun. In so doing this committee, present administrator
and administration will witness a be part of an office it can be truly
proud of!
__________
Statement of Ron Scholl, Missoula, MT
I would like to throw my support strongly behind legislation that
would guarantee the independence of the office of the National EPA
Ombudsman office. Although I do not live in a community that is part of
a past or present Ombudsman case, I live near one (Alberton, Montana),
and have followed the Ombudsman activities here and elsewhere, such as
in Denver at the Shattuck site and Tarpon Springs, Florida.
Outside of the contaminated communities the Ombudsman has
investigated, very few people nationwide are even aware of the
existence of the Ombudsman office, much less of the impressive record
of Robert Martin as Ombudsman. But contaminated communities can occur
anywhere, and will continue to occur. The public deserves a voice to
air reasoned complaints about EPA handling of hazardous sites, and a
listening ear uninfluenced by politics, including bureaucratic
politics.
There is only one thing that outrages and alarms me more than some
of the revelations uncovered in Ombudsman investigations, and that is
the attempt by the EPA, under both the Clinton and now the Bush
Administrations, to undermine the effectiveness of this watchdog
office. Rather than learn from their mistakes, the EPA administration
has retrenched.
A truly independent Ombudsman--at least in the United States of
America--should not be directed what cases to chose or drop, should not
have his budget or staff depleted at whim, should not be told he can't
speak to lawmakers or the public, and should not have his files
illegally seized. Please protect the health of the people and our
environment by supporting legislation that would keep intact and
strengthen the purpose of the EPA Ombudsman: to investigate citizen
complaints about EPA activity at hazardous waste sites in an objective
manner and in an atmosphere of openness and full disclosure.
__________
Statement of Lucinda Hodges, Director, Alberton Community Coalition for
Environmental Health (ACCEH), Missoula, MT
Senate Environment and Public Works Committee. The Alberton
Community Coalition for Environmental Health is a non-profit chemical
injury advocacy group dedicated to improving the quality of life for
victims of the April 11th, 1996, Montana Rail Link train derailment and
chemical spill: the largest mixed chemical spill in railroad history.
Members of ACCEH have worked with the Ombudsman since 1998 and the
Alberton, MT, site is one of many open investigations that has been
left pending. It is our highest hope that you will stand behind both
the man and the office and vote in favor of Senate Bill 606.
The following testimony is offered to illustrate the effects of
living in a contaminated community and the reason why this Nation needs
an Independent EPA National Ombudsman who performs the job with both
courage and integrity.
April 11th, 1996, the numbers:
<bullet> 133 tons--71 tons of spent oil refinery waste spilled and
combined with 62 tons of chlorine creating a toxic plume that closed I-
90 for 17 days.
<bullet> An initial ``hot zone'' of 72 square miles resulted in
over 1,200 people evacuating from their homes, 352 people were treated
at local hospitals, and one man died from exposure to toxic fumes.
<bullet> 25,000 hazardous waste filled railcars annually pass
through Montana--The Last Best Place--with an average of 5.3 accidents
each month. In 1995 & 1996, Montana Rail Link was ranked by the FRA as
having the 2d highest accident record for its class of railroad.
<bullet> Recent soil sampling revealed dioxins remain in the soil
on the derailment site.
The story behind the numbers:
Despite all assurances from the EPA that the ``hot zone'' was safe
for returning evacuees' many residents and workers experienced a wide
range of debilitating health problems upon entering the former ``hot
zone''. Reported acute symptoms ranged from shortness of breath,
headaches, migraines, blurred and double vision, nausea, dizziness,
loss of concentration, muscle twitching, fatigue, skin rashes, joint
pain to chronic conditions that developed over time such as seizures,
balance disorders, lupus, asthma, fibromyalgia, chronic fatigue,
cancer, and toxic encephalopathy. Thus began what is still an
unresolved and tragic controversy that revolves around this simple
question--Is it really safe to live in Alberton, MT?
By 1998, after YEARS of phone calls, letters, costly trips to EPA
Region 8 Headquarters in Denver, Colorado, Washington, DC, the
production of a documentary film, ``A Toxic Train Ran Through It,'' and
several well researched masters thesis's delving into the consequences
of exposure to 133 tons of toxic waste--were ignored by EPA officials--
ACCEH petitioned the office of the National Ombudsman of the EPA to
intervene. Shortly thereafter Robert Martin visited the community, met
with individuals, reviewed public documents, and determined an
investigation was warranted.
In November of 2000 more than 5 years after the derailment the
first public and only hearing was held by EPA National Ombudsman,
Robert Martin, in Missoula, MT. newspaper editor, Ken Picard, reported
at the time, ``For 10 grueling hours they brought forth medical
records, news articles, videotapes, and photographs of defoliated trees
and chemically injured animals. Some displayed large plastic bags and
tackle boxes full of the prescription drugs they now rely on to
survive. Mothers spoke of previously healthy children who can no longer
play sports and whose medical bills total in the tens of thousands of
dollars. Others asked why schools and playgrounds were never
remediated, what became of the toxic soil hauled through Missoula, and
why residents weren't put through the same rigorous decontamination
measures as rescuers. Grown men who recounted their experiences were
reduced to tears and could not continue with their testimony. Their
hopes are pinned on Robert Martin, national ombudsman for the
environmental Protection Agency (EPA) who was asked to hold these
hearings by Sen. Max Baucus (D-Mont.).''
The ombudsman promised to conduct a second hearing and provide
Senator Baucus with a full assessment of the Alberton community and the
derailment site. Mr. Martin concluded the hearing with these words;
``You're very brave. And for the record, you're not alone.''
Unfortunately, we are once again alone. Ombudsman Robert Martin, has
not been able to keep his promise to the people of Alberton, MT due to
direct and purposeful interference from the agency he is mandated to
police. Only weeks after the hearing in Missoula, MT, ACCEH received
this memo from Ombudsman Martin, ``In view of reported recent personnel
transfers and pending implementation of EPA Ombudsman Guidelines . all
schedules for all National Ombudsman cases have been put on hold and/or
delayed until further notice.''
What we have learned in over 7 years of working with the EPA is
that there is no such thing for an average American citizen as a
``working'' relationship with the EPA. There is no legitimate process
for citizen complaints within the hierchy of the agency. Without
reauthorization of the Ombudsman legislation this investigation and
many others will never be completed. Years of work by local volunteers
will be lost forever, and one more contaminated community will be left
in an untenable position. A position that is well defined by Professor
Michael R. Edelstein in his book, Contaminated Communities, ``Most
toxic victims suffer from citizen's bind. In seeking publicity, they
enhance their community's stigma. In actively seeking answers, they
enhance their level of stress. In depending on government for
assistance, they are likely to be disappointed. And facing a mitagory
gap, wherein an extended period of time elapses between the definition
of the exposure and the execution of the steps to correct it, victims
may find themselves trapped in a situation where they are damned no
matter what they do.''
What has prevailed in Alberton, MT, are corporate politics, bad
science, poor site management, and no accountability for millions of
superfund dollars. The real-life human consequences of this malfeasance
have been documented and witnessed everyday over the past 7 years in
our little town by chronic illness, blighted housing, boarded up
business's, and dislocated families with the tab mostly being picked-up
by the American tax payer every time someone's mother, father, or
child, requires assistance from social services, disability, or full
time care-taking. The true social and economic costs to our town and
this Nation for the broken lives of the chemically injured are
staggering.
In closing, we thank you for holding this hearing and we
respectfully request that Robert Martin be reinstated as the EPA's
National Ombudsman and be allowed to finish the investigations he began
and continue on under this legislation as a truly independent EPA
National Ombudsman that the entire Nation can be proud of.
__________
Cindy Koke,
Denver, CO.
Senator Jeffords: I am writing today in reference to bill 606 the
Ombudsman Reauthorization Act of 2002. The bill relates to the
reauthorization and restructuring of the office of Ombudsman of the
Environmental Protection Agency. The Ombudsman's office has been
instrumental in investigating and righting wrongs at Superfund
sites where mistakes were made. Every agency has entities in place
to audit and investigate mistakes or wrong doing. Police
Departments have internal affairs divisions. The political arena
has sub committees armed with special prosecutors to investigate
wrongdoing.
The environment is such an important issue. It affects the air we
breathe the water we drink, the food we eat, In other words not only
our health but also our very existence. It is just common sense, with
such important issues at stake, that the American people have an
Ombudsman concerning the environment. It also makes sense that this
office should be funded independently so that the EPA cannot control or
hinder investigations. The Ombudsman should be the one to pick which
cases warrant investigation, not the agency that made the mistake.
There are many wonderful people working for the EPA but as in all
organizations people make mistakes. There is no reason to be afraid of
the truth. We should all have the same interest at heart. Environmental
protection should mean a remedy protective of health and environment.
The American people have been very fortunate to have had an
Ombudsman like Bob Martin and a Special Investigator like Hugh Coffman,
looking out for their interest. I recently attended a conference with
citizens who live near Superfund sites all over the country and
applause followed after any mention of their names. Many citizens felt
that they would have never been heard had it not been for the
Ombudsman. I live near the Shattuck chemical site. I feel that the
Ombudsman's office was instrumental in correcting a mistake that had
been made.
I implore you to support the Ombudsman process and to make sure
that they are allowed to do their job, by letting them choose their
cases and by funding them independent of the EPA.
Thank-you.
Cindy Koke.
__________
Statement of William A. Smedley, Executive Director, GreenWatch, Inc.;
Board Member, PEN; Chairman Legal Committee, AIR
Thank you for the opportunity to provide this testimony in
connection with the June 25th hearing conducted in Washington DC.
Although I was unable to attend this important hearing, I wish to
provide the following testimony regarding my experiences with the
National Ombudsman's office. This testimony is submitted on behalf of
three non-profit organizations which I hereby represent: GreenWatch,
The Pennsylvania Environmental Network (PEN) and Arrest the Incinerator
Remediation (AIR).
Our grassroots citizens group AIR saw first-hand in Lock Haven
Pennsylvania, with the Drake Superfund Incinerator, how the EPA is
unresponsive and evasive to those citizens who are most affected by
their decisions. We have seen for ourselves how the EPA bureaucracy has
repeatedly tried to prevent and interfere with the Ombudsman's
investigation at Drake and other Superfund Sites. I can tell you first
hand that Mr. Martin is one of the few people in the EPA who has earned
the respect, trust and admiration of AIR and other groups across
Pennsylvania. Although we were unable to stop the operation of the
Drake Incinerator, due to the unconstitutional language of Superfund
law, Robert Martin helped us tremendously in his capacity as Ombudsman.
Because of the unconstitutional provisions of Superfund law locking AIR
out of Federal court (Section 113H), the Ombudsman was the only place
for citizens to go where someone would independently hear their
grievances and investigate their allegations. Mr. Robert Martin did an
excellent job trying to mediate a bad situation only to find himself in
a face off against Asst. Administrator Tim Fields and hostile,
unreasonable Region 3 officials, namely one Thomas Voltaggio (promoted
after Drake to Asst. Regional Administrator). The Ombudsman's
recommendations and reports in the Drake case were professional,
reasonable, well thought out and researched and should have resulted
in, at least, a temporary shut down of operations at Drake until the
issues were resolved. Officials from our State DEP even had the
audacity to tell the Ombudsman that his involvement at Drake was
``untimely''. Untimely indeed, I pulled empty beer cans (in bags with
Drake instrument calibration documents) out of secure Drake dumpsters
shortly after the Ombudsman left town. Instead of Region 3 officials
admitting that their contractors were drinking beer they did damage
control saying publicly that empty beer cans were not proof that the
contractors were drinking while operating a hazardous waste incinerator
on a Superfund Site. The Region 3 Drake operation manager, Gregg
Crystall later told me that EPA should have just admitted that the
contractors were drinking but he allowed their public relations machine
to spin the incident anyway. Drake burned in 1998 and we understand
that since then EPA Region 3 officials have been trying to burn Mr.
Martin in retaliation for doing his job as Congress had intended.
During the Drake fight, in reaction to Mr. Martin's report on
Drake, we also saw EPA create the ``regional ombudsman'' program that
we recognized immediately as a sham. The regional folks are nothing but
seasoned yes men and we and others statewide and nationwide have
boycotted any involvement with them. There is only one true Ombudsman,
Mr. Martin. This ploy was nothing but an attempt to take away the power
vested in Mr. Martin originally by Congress. Since then we have
reviewed the GAO report on the National Ombudsman. The report verified
our feelings that Mr. Martin did not have sufficient independence, was
interfered with by EPA and that the regional ``ombudsman'' are
compromised with tremendous conflict of interest and are far from
independent. In my capacity as Executive Director of GreenWatch, a non-
profit organization dedicated to helping citizens with environmental
problems, I have seen the regional ``ombudsman'' at work. The
``investigation'' conducted by the Region 3 ``ombudsman'' in the
Boyertown Bovine Site near Gilbertsville, PA vindicated Region 3
officials and was insulting to us and our clients. His actions again
reinforced our belief that the ``regional ombudsman'' program was
designed to circumvent Mr. Martin's involvement and to do damage
control for the Region. We still need Mr. Martin's help at this site as
EPA Region 3 officials actually had the audacity to blame the farmers
for their own dying dairy herd problems even in light of tremendous
evidence of fluoride pollution from a local industry doing government
contracts. While the farmers wait for the Ombudsman's help, and for
your action on legislation, they slip faster toward bankruptcy.
On January 29, 2000, I traveled to Denver Colorado to testify at an
Ombudsman hearing conducted by Senator Wayne Allard. I represented many
citizens and several organizations in requesting that Senator Allard
move Ombudsman legislation through the Senate and eventually through
Congress so that citizens nationwide could have a truly independent,
well funded National Ombudsman. Too much time has passed since then and
citizens now find themselves without an Ombudsman due to EPA's attempt
to transfer the Ombudsman to the Inspector General's office resulting
in Mr. Martin's resignation. The EPA has demonstrated, on many
occasions, that they cannot be trusted with allowing the Ombudsman to
function independently leaving citizens with no Ombudsman to assist
them. My opinions of EPA's treatment of the National Ombudsman's office
and with EPA (Regional and National) interferences with the National
Ombudsman's office have been formed from many interactions with
citizens working with Mr. Martin and his office nationwide.
AIR worked closely with the citizens in Times Beach Missouri and
learned how EPA rams incinerators down citizen's throats before the
Drake Incinerator came to Lock Haven. On behalf of AIR, I traveled to
Times Beach to learn from the citizens fighting EPA there and
personally requested involvement from Mr. Martin at that time. I
witnessed the EPA regional officials treatment of citizens in Times
Beach and was horrified at thinking that we were next. Mr. Martin along
with the professional assistance of his investigator, Hugh Kaufman, did
their best to reason with Region 3 officials regarding Drake, only to
be ignored and down played. I have worked with citizens in Denver
fighting the Shattuck Superfund Site and saw how they were treated by
their EPA regional officials, same game different city. Again, Mr.
Martin and Mr. Kaufman did their best to help against the power and
deception of the region and Mr. Fields. I also assisted the citizens of
McFarland California with obtaining copies of their documents that were
eventually turned over to the IG's office. I spent 6 hours copying
thousands of pages of documents at EPA in order to preserve copies
before they were confiscated by the IG's office. Citizens feared that
once the IG's office got hold of their documents that they would be
gone forever. Having no faith in the IG's office, we believe their
fears were well founded. Citizens who are members of PEN in Troop PA
fighting the Marjol Battery site again learned first hand about how
Region 3 officials (Voltaggio again) treat people who question their
authority and tactics. The Ombudsman's work is not done in Troop PA and
citizens desperately need Mr. Martin and Mr. Kaufman back.
As I said previously, too much time has passed while citizens
nationwide wait for action on legislation to fund a independent
National Ombudsman office. Now we find ourselves with no place to turn
for help with many situations were we desperately need the Ombudsman. I
am convinced that Mr. Martin and Mr. Kaufman were targeted because of
their honesty and integrity with their work on behalf of the U.S.
Congress and the American People. I would be happy to appear before any
Senate Committee anytime to testify about our experiences with Mr.
Martin, his office and his integrity and about our negative experiences
with Mr. Fields and USEPA Region 3 officials. I urge you on behalf of
GreenWatch, AIR and PEN to do everything in your power to rapidly move
legislation through Congress to again give the American people an
independent office of National Ombudsman with Mr. Martin in charge with
the power to manage his own staff and budget. The loss of the National
Ombudsman office is a severe blow to our trust in our elected officials
who ultimately bear the responsibility for the loss of our National
Ombudsman. Please give us the National Ombudsman that was originally
intended. While you wait and deliberate citizens suffer from the lies
and deception of corrupt regional and national EPA officials who enjoy
impunity from their fowl actions. Time is of the essence; please give
us back our Ombudsman, Mr. Robert Martin. We have lots of work for him
to do before it is too late.
Again, thank you for the opportunity to give testimony on this very
important issue.
Suzie Canales,
Corpus Christi, June 21, 2002.
Committee of Environment and Public Works
Dear Committee of EPW, my name is Suzie Canales with Citizens for
Environmental Justice (CFEJ) based in Corpus Christi, Texas.
We are a bipartisan watchdog group residing in a county that is
mostly Hispanic and low-income. We live in an industrial City with
numerous refineries. Over the last 50 years, Nueces County operated
over 40 pre-regulation landfills.
For decades our county has been environmentally over-burdened. We
have documentation of high cancer rates as well as high birth defects,
yet Local, State and Federal Agencies have dismissed our environmental
health concerns conducting studies that were inadequate, misleading and
arbitrary.
Government agencies, in this case the EPA, must be held
accountable. The only way to ensure that grassroots citizens groups get
a fair and impartial review of our disputes with the EPA is to support
S. 606. It is imperative that the National Ombudsman has the additional
authority S. 606 proposes in order to conduct inquiries into disputes
such as ours. This will ensure that the EPA, the agency charged with
protecting the environment be held accountable to the people who turn
to them with environmental concerns. If there is no effective
accountability system in place, I can assure you it is not the EPA who
will suffer, it is the people affected.
It is imperative that Robert Martin be reinstated with all the
authority proposed in S. 606. In our corner of the world, this would
insure that our community would at last get a fair investigation that
we deserve.
Therefore, we respectfully request that the Committee of
Environment and Public Works, support S. 606.
Sincerely Yours,
Suzie Canales,
Citizens for Environmental Justice (CFEJ).
__________
Environmental Law Society, Vermont Law School,
July 13, 2002.
Hon. James M. Jeffords,
Chairman, Senate Environment and Public Works Committee,
U.S. Senate,
Washington, DC.
Dear Chairman Jeffords: On behalf of Vermont Law School's
Environmental Law Society, we would like to provide written comments
for the record following the Senate Committee on Environment & Public
Works Hearing on EPA's recent decision to move the EPA Ombudsman to the
Office of Inspector General held on June 25, 2002. We write in strong
opposition to the decision to locate the EPA Ombudsman in the Office of
Inspector General and urge the Senate to properly reauthorize this
critical check and balance, that has been available to communities who
seek to protect their public health and their environment.
Throughout, the past year many Vermont Law School (VLS) students
have followed the exceptional work and the associated controversy of
the EPA National Ombudsman in his work in New York City, Idaho,
Florida, Pennsylvania and Colorado. When citizens struggle with the
intricacies of a hazardous waste cleanup or an EPA bureaucracy
determined to implement a plan, the EPA Ombudsman provides an open and
transparent process to help resolve their complaint. For citizens who
do not have first hand experience with the government, and/or the often
complicated bureaucracy of the EPA, the Ombudsman process may be
difficult to imagine. Many do not fully understand what it is like to
have decisions seemingly arbitrarily made to not cleanup a radioactive
waste site (Shattuck Superfund site in Denver, CO), or not cleanup a
lead battery dump (Marjol Battery in Throop, PA) or not have homes
tested for contaminants in the case of residents surrounding the World
Trade Center. The EPA Ombudsman provides a mechanism to help citizens
obtain an independent review of Agency decisions that appear to be
misguided.
Today, however, the EPA Ombudsman function no longer exists at EPA.
Instead of acting on the recommendations of the General Accounting
Office (GAO) made in July 2001\1\--to give further independence and
control of resources to the EPA Ombudsman--the move to the OIG has done
just the opposite. The move has stripped the Ombudsman of any semblance
of independence and further diminished the Ombudsman's ability to
perform his job. While the OIG is an independent office with respect to
the EPA, its guidelines and procedures that require it to speak with
``one voice'' run counter to the mandate of an ombudsman, which
requires investigating complaints made about agency decisions, and not
simply codifying agency decisions.
---------------------------------------------------------------------------
\1\ See Gen. Acct. Off., Hazardous Waste: EPA's National and
Regional Ombudsmen Do Not Have Sufficient Independence, GAO-01-813
(2001).
---------------------------------------------------------------------------
The OIG is a poor choice for the EPA Ombudsman for several reasons.
First, the ombudsman doe not have the independence necessary to perform
the role of an ombudsman within the OIG. It is our understanding that
the recently appointed IG ``Ombudsman'' does not have authority to
decide which cases he or she will investigate. Second, the IG Ombudsman
does not have the freedom to speak with citizens, Congress, or the
press due to standard OIG procedures. Instead, the IG Ombudsman must
work through a Community relations person or a Congressional liaison to
speak with the public, Congress or the press. We know of no legitimate
mainstream ombudsman who must jump through these hoops to perform their
job. Third, we are not aware of any Federal Ombudsman that is housed in
the Inspector General's office. Both the IRS and the FDIC Ombudsman
report directly to the head of the respective agencies. The IG has an
important role in government-investigating fraud and abuse--but the
IG's mandate is much narrower than the charge of an Ombudsman.
We would like to take this opportunity to ask the Senate to take
immediate legislative action to restore the independence of the EPA
Ombudsman. The legislation should provide the EPA Ombudsman with
functional and structural independence that is consistent with the
professional standards of the Ombudsman community. The EPA Ombudsman
must be able to choose his or her own cases, control his or her own
resources and staff, communicate freely with the public and Congress,
and maintain confidentiality with complainants.
We recommend the following changes to S. 606 ``The Ombudsman
Reauthorization Act of 2001.'' First, we recommend that the EPA
Ombudsman have independent subpoena power, which is consistent with
other Federal ombudsman. Second, we commend the EPA OIG for its
decision to expand the Ombudsman function to apply to all programs that
are under the jurisdiction of the EPA, and hope that the final
legislation will incorporate this decision for we believe this change
would help to better serve the public. We note specifically the need
for an Ombudsman to receive complaints about EPA decisions that have
the effect of disproportionately impacting low income communities and
communities of color who are already over burdened by hazardous waste
in this country.
Additionally, programs under other environmental laws such as the
Clean Air Act might be well served by an independent ombudsman.
Third, we also recommend that the Regional Ombudsman be appointed
by and report directly to the EPA National Ombudsman. The regional
ombudsmen must do fulltime ombudsman related work and not do part time
work on Superfund or other programs as is the case today. Past direct
or perceived conflict of interest must be remedied in order for the
ombudsman program to be effective at EPA. The Regional Ombudsman should
merely be an extension of the National Office and must assist the
National Ombudsman in investigating and reviewing complaints and other
duties.
Fourth, we recommend that the Ombudsman be granted the specific
power to petition the Administrator and/or Congress to seek additional
funds from Congress to perform technical sampling or investigative
support work.
Finally, we recommend that the EPA Ombudsman report directly to the
Administrator of the Environmental Protection Agency. Although there
has been significant controversy between the Ombudsman and his or her
staff and the Administrator (in both of the past two Administrations),
we believe that if legislation secures the EPA Ombudsman sufficient
independence and control of his or her resources, that this structure
is the most effective for an executive branch ombudsman. This is the
structure that ombudsmen at the Federal Deposit Insurance Corporation
and the Internal Revenue Services follow and we feel this is a good
model for the EPA Ombudsman. Further protection could be provided to
the Ombudsman in the legislation by enumerating cause of removal from
the position. Whistleblower protection must be available to the EPA
Ombudsman and associated staff. Provided that the EPA Ombudsman
controls his or her own budget, staff and resources consistent with
Federal Civil Service rules, we feel this structure is advantageous
beyond the particular difficulties with either of the past
Administrations.
If such a structure is not politically feasible, we recommend that
the legislation be changed to have the EPA Ombudsman report directly to
Congress as its own entity. We do not feel that GAO is a suitable
location for the EPA Ombudsman because GAO does not receive complaints
from the public.
Notably, in March of this year, former EPA Administrator Carol
Browner spoke at Vermont Law School's conference entitled Women
Rethinking the Environment. During her 8 year tenure, there were
certainly times when the Agency's bureaucracy tried to prevent the
Ombudsman from investigating the Industrial Excess Landfill case in
Uniontown, Ohio. In another case, the Ombudsman was temporarily denied
authorization to travel to Tarpon Springs, Florida. This latter case,
spurred Members of the House Energy & Commerce Committee to ask GAO to
investigate the Agency's actions to hinder the Ombudsman's
investigations. The GAO Report concluded the Ombudsman does not have
sufficient independence or control of resources.
Today, have a Republican administration that has acted on the
previous administration's desire to silence the people's advocate. As a
result of the Administrator's decision to move the Ombudsman to the
OIG, more than two dozen communities who previously relied on the
Ombudsman process have been left without an independent watchdog to
help safeguard their public health and their environment. This is
especially critical given the dwindling level of dollars in the
Superfund. We urge Congress to take this opportunity to reauthorize
this critical watchdog position at EPA with the foregoing enhancements.
As a final note, we also recommend that Mr. Robert J. Martin be
reinstated to finish his case work that is currently pending and that
he be considered for any future position as Ombudsman if that may be
authorized by Congress.
Thank you for your consideration of these comments on S. 606.
Sincerely,
Kristen Huysman,
Environmental Law Society, Vermont Law School.
__________
Memorandum from Tom Devine, Government Accountability Project
Re: Public policy impact from abolition of independent EPA Ombudsman
The alleged retaliatory reassignment and forced resignation of EPA
National Ombudsman Robert Martin is far more than an employment
dispute. It has serious consequences for communities who believe the
agency illegally has permitted public health hazards to threaten their
air and water supplies from hazards such as Superfund and toxic waste
sites.
In April when he was forced to resign, Mr. Martin was pursuing and
seeking resolution of more than two dozen cases at the request of
citizen organizations and congressional offices. In each case, the
communities had reached an impasse with normal EPA channels, and the
Ombudsman was their last resort. During his decade in office, after
investigations, public hearings sometimes hosted by Members of Congress
and subsequent mediation efforts, Mr. Martin has broken the deadlocks
to reach mutually acceptable resolution in some 80 percent of his
cases.
Since reassignment of the Ombudsman function to EPA's Office of
Inspector General (``OIG'') and Mr. Martin's forced resignation,
however, there has been no further progress on any of the cases. The
OIG has made no efforts to work with Mr. Martin as a transition to
renewed efforts. The citizens' accountability lifeline has been cut.
Mr. Martin's goal in his Whistleblower Protection Act case is to return
for a fixed time period to complete the work that he started on pending
cases. The list below is a sampling of cases that have been
functionally killed.
Alberton, Montana.--This Montana town suffered a disastrous train
wreck 5 years ago that caused widespread chlorine contamination. It has
caused health consequences such as blackouts, sexual dysfunction,
memory loss and respiratory breakdowns. When he was removed, the
Ombudsman was using videotape of the train's location to challenge EPA
assertions that the toxic train could not be found. The search has been
halted.
Northern Idaho.-- In this Coeur d'Alene basin, residents protested
that the agency is not requiring Union Pacific to pay for its share of
a $\1/2\-4 billion cleanup cost, although it is responsible for lead
spills thousands of times above safe levels. The lead is contaminating
rail and bike paths, to the extent motorists are still warned about
leaving their cars to fix flat tires. At the request of the Idaho
congressional delegation. Ombudsman Martin was pursuing the case when
his efforts were halted by his removal. It remains dormant.
Pensacola, Florida.--Area Congressmen and municipal officials from
this poor African American community asked for Ombudsman Martin's
assistance when EPA decided not to remove toxic wastes contaminated
with dioxin. This case was pending when the Ombudsman was removed.
Riviera Beach, Florida.-- Four area Congressmen and the mayor of
this poor African American community near West Palm Beach asked
Ombudsman Martin to open a case, because the town's drinking water is
contaminated by industrial solvents such as trichlorine ethylene. The
residents protested that EPA was requiring the municipality to foot the
two million dollar annual cleanup cost for Honeywell's pollution. Last
fall the Ombudsman successfully negotiated a solution to obtain funding
from within EPA, but progress has now halted without any liability or
enforcement action to hold Honeywell responsible.
Shattuck, Colorado.-- This site near Denver stored radioactive
wastes that could be toxic for 500 years. The storage area was within
blocks of residential and recreation areas, as well as within range of
the water supply. In response to requests ranging from Senator Allard
to community organizations, an Ombudsman investigation found that EPA's
plan to store the waste would only isolate it from 5-15 years. As a
result, the agency agreed to require its removal. But costs were not
negotiated and a settlement signed among the parties until almost a
year after Ms. Whitman's arrival at EPA. Citizens protested that the
subsequent proposed settlement only required Citigroup to pay $7
million for a cleanup that requires from $35-100 million to conduct
adequately, without considering associated costs to remove radioactive
contamination from the groundwater and other areas where leaks already
had exceeded containment or the site boundary. After the U.S. District
Court in Washington, D.C. issued a Temporary Restraining Order (TRO)
enjoining abolition of the Ombudsman office, Mr. Martin completed
compilation of an extensive record of public testimony and prepared a
report for the Federal District Court judge in Colorado who must
approve the proposed settlement. Although the settlement is still under
review, there have been no further contributions to the record since
Mr. Martin's removal.
Tarpon Springs, Florida.-- After the EPA had decided to pile up and
leave asbestos, phosphates and radioactive wastes for storage in the
community, Ombudsman Martin analyzed the storage site at the request of
Representative Bilirakis. He found that it was an area prone to
sinkholes, and on top of an aquifer that provides drinking water for
two counties. As a result. EPA withdrew its remedy to leave the toxic
wastes, and withdrew an associated consent decree. Ombudsman Martin was
actively negotiating a new solution when his office was abolished.
Throop, Pennsylvania.-- Senators Spector and Santorum, as well as
Lackawanna County and Throop Borough, asked Ombudsman Martin to review
EPA's cleanup plan for this site to dispose toxic wastes from a battery
crushing operation. The controversy centered on whether it should be a
Superfund site, and whether toxic wastes such as acid, arsenic, dioxin,
lead and PCB's should be removed or stored in the area. EPA's plan was
to leave the poisons in the community, just blocks from residential and
recreation areas and within range of the water supply, covered by
plastic liner bags. But the Ombudsman investigation found lead in the
soil at levels up to 250 parts per million, revealed there already were
weeds growing through the plastic bags, and concluded that the area's
topography meant it was too geographically unstable to safely store
toxic waste. After the District Court TRO permitted the investigation
to resume, the Ombudsman held public hearings and found records
demonstrating that EPA had concealed readings that the site
contamination readings exceeded Superfund levels. Since Mr. Martin's
removal, the case has been dormant.
Uniontown, Ohio.-- At the request of area Congressman Sawyer,
Ombudsman Martin opened a case of the IEL site near Canton, Ohio, for
which tire companies today are primarily responsible. Radiation was
emanating from the site with inexplicable tritium readings in the
ground water, and the original owner alerted EPA that he had accepted a
nuclear device from the army while operating the site as a landfill.
The Ombudsman was investigating challenges to EPA assertions that the
nuclear device did not exist, because it had not been found.
Nonetheless, the agency also refused to look for it, based on the
contradictory excuse that it would be too dangerous to do any digging.
The Ombudsman case ended with Mr. Martin's removal.
Yucca Mountain, Nevada.-- At the end of last year the Nevada
congressional delegation, the state and Las Vegas' mayor asked the
Ombudsman to investigate EPA-related issues from the proposed nuclear
waste site, which has a Resource and Conservation and Recovery Act
(RCRA) identification number. EPA's Office of General Counsel barred
Mr. Martin from providing assistance.
World Trade Center.-- At the request of Representative Jerrold
Nadler, the Ombudsman opened a case to prepare cleanup recommendations
and to probe EPA Administrator Whitman's widely publicized assertions
that there were no environmental health hazards from the World Trade
Center disaster. Ombudsman Martin conducted two eleven hour hearings
hosted by Representative Nadler. The hearings developed extensive
testimony contradicting Mr. Whitman's assertions, from scientists,
citizens, firefighters and other cleanup workers, doctors and even
counter terrorism experts. They exposed severe threats from asbestos
and other particles released during the disaster. The Ombudsman
presented detailed findings in testimony to the New York state
assembly, New York city council, and New York City Board of Education.
Facing this record, EPA reversed its initial decisions and took serious
steps such as stopping release of contaminated cars, and starting a
systematic program of indoor air testing for lower Manhattan. City
authorities also acted to limit exposure of cleanup workers and school
children to the newly confirmed health hazards. None of these efforts
would have occurred if the District Court had allowed Ms. Whitman to
eliminate the National Ombudsman function as originally planned.
Further oversight has ended entirely since his forced removal.
__________
Memorandum from Community Leaders for EPA Accountability Now (CLEAN),
Coeur d'Alene, ID, to Senator Jeffords
MEMORANDUM
June 21, 2002
RE: S. 606 National EPA Ombudsman Reauthorization Hearing
Thank you for committing to holding your hearing on the
reauthorization of the National EPA Ombudsman.
Please accept the following written and attached submissions by
Community Leaders for EPA Accountability Now for the S. 606 hearing,
June 25, 2002.
It is the position of C.L.E.A.N. that an independent National EPA
Ombudsman's function must be maintained--but outside the oversight of
the EPA office of Inspector General. We fully support the position of
U.S. Senator Mike Crapo in this regard.
In Oct. 2000, C.L.E.A.N. testified (U.S. House--Commerce Committee)
in support of the National EPA Ombudsman's critical role of oversight
over EPA.
If an agreeable timeline can be established, C.L.E.A.N. believes
that reappointment of Ombudsman Robert Martin gives us our best hope
for true resolution of the highly contentious issues our citizens,
communities and elected leaders still have with EPA.
The magnitude of the two Ombudsman investigations of EPA at the
Bunker Hill Superfund Site and the surrounding basin cannot be
overstated. The investigations of EPA and EPA Region-10 in North Idaho
must be resolved--in a timely manner.
Examples of our concerns with the critical need for a truly
independent EPA Ombudsman are demonstrated in two attachments that
show:
<bullet> EPA-OIG has yet to respond to fundamental questions from
C.L.E.A.N. about the pending Ombudsman cases here;
<bullet> Concerns with EPA Region-10 actions continue to mount--
despite the efforts by new Regional Administrator John Iani to ensure
local community concerns are prevented and/or resolved.
C.L.E.A.N. respectfully submits this to you--in full support of
Senator Mike Crapo's efforts and the testimony of Ms. Kathy Zanetti, of
the neighboring Shoshone Natural Resources Coalition. Thank you.
______
Community Leaders for EPA Accountability Now (CLEAN),
April 30, 2002.
Ms. Nikki L. Tinsley, Inspector General
Environmental Protection Agency,
Washington, DC.
Dear Ms. Tinsley: The sudden resignation of former National EPA
Ombudsman Robert Martin last week, is prompting the following questions
and inquiry by Community Leaders for EPA Accountability now
(C.L.E.A.N.) based in beautiful Coeur d'Alene, Idaho.
C.L.E.A.N. and other organizations dealing with concerns from EPA,
Region-10, its bureaucracy and future intentions in this region have
very real reservations about the likelihood Mr. Martin's investigations
of EPA will ever be resolved or fully disclosed.
In our effort to understand the IG's new role of managing the
National EPA Ombudsman, please provide answers to the following:
1. We understand a successor to Mr. Martin has been named (Mary
``Peggy'' Boyer). What are her priorities as they relate to the pending
investigations still open by the former Ombudsman?
2. Will the outstanding/pending ``investigations'' remain active or
be reclassified/re-prioritized in any way? If so, how?
3. Please define the process in which the active investigations
will be carried out and finalized? What status are they being given?
4. Since Mr. Martin and other elected leaders, citizens, and
business-owners were unsuccessful in having Region-10 answer any of the
interrogatories or requests for production of documents submitted to
EPA, how do you intend to have the new Ombudsman re-submit or demand
formal responses to the questions/requests previously raised?
5. What is the status of the current case-file; hearing
transcripts, documentation, etc. submitted by communities involved with
the former Ombudsman's investigations?
6. How exactly, are affected communities supposed to have faith in
the National EPA Ombudsman's functions under OIG authority?
7. What is the timeline in which the active investigations into EPA
at the Bunker Hill Superfund Site and in the surrounding basin are to
be resolved?
8. Is it unreasonable for local communities to expect some timely
conclusion to the outstanding/active investigations of EPA and Region-
10 before the release of the forthcoming Record of Decision by EPA
(originally due in Dec. 2000) and now due in June 2002?
9. Will the new Ombudsman personally visit the sites with active
investigations? If so, please explain the schedule and purpose?
10. What is the process for citizens and communities with new
concerns about EPA actions in their area/region who want to report them
to the proper authority?
11. If Mr. Martin's administrative appeal and/or court actions over
his concern about the transfer from EPA-OSWER to the EPA-OIG are
successful, will he be given complete access and authority over the
case files recently transferred to your office?
12. Do you intend to delegate these questions to Ms. Boyer? If so,
we would like to know exactly when that will take place, and how soon
we can expect a reply.
13. As you may or may not know, former Ombudsman Martin released
``working findings'' outlining eight separate issues of questionable
EPA actions at the Bunker Hill Superfund Site and in the surrounding
basin. Will they remain an active part of the ongoing investigations of
EPA here? If so, how?
These are the priority questions from C.L.E.A.N. on behalf of many
residents in our communities, elected leaders at all levels of
government, including Congressional leaders who all have committed
countless hours of testimony, research, documentation, etc. to prevent
EPA from making more mistakes in our region. But more importantly, our
collective efforts are also intended to hold accountable past and
current EPA decisionmakers from unwanted actions in our region at
taxpayer expense.
Furthermore, we also want to understand your current position on
Idaho's Congressional attempts (Sens. Larry Craig, Mike Crapo; Reps.
Butch Otter and Mike Simpson) through S. 606, to reauthorize the
National EPA Ombudsman's office as an independent function within EPA.
We appreciate a timely response on the previous questions and the
priority concerns outlined above. Please feel free to contact us at any
time. Thank you.
Sincerely,
Carrie Oja,
Chairperson.
Bret C. Bowers,
Manager.
______
Community Leaders for EPA Accountability Now,
June 19, 2002.
John Iani, Administrator,
U.S. EPA--Region-10
Seattle, WA.
RE: Bunker Hill Superfund Site/Cd'A Basin ROD
Dear Mr. Iani: The forthcoming Record of Decision on EPA's expanded
Superfund cleanup in North Idaho is causing a great deal of anxiety in
our region. The concerns stem partly from ongoing issues with EPA/
Region-10 which have arisen or are yet to be resolved since your
appointment as Regional Administrator.
Community Leaders for EPA Accountability Now respectfully seek
responses and understanding from you on the following ``current''
topics:
1. During a May 30, 2002 conference call with EPA, DEQ, agency
contractors and others, there was reference to a ``draft'' ROD already
circulating between the governments and Tribes. Is a draft being
circulated? When do you anticipate presenting a final ROD to the State
of Idaho and Coeur d'Alene Tribe for their acceptance?
2. Why hasn't a Federal appointee to the Commission (likely EPA)
been selected? When do you anticipate an appointment?
3. During your meeting with C.L.E.A.N. last year, we briefly
discussed the Memorandum of Agreement (MOA) on the Coeur d'Alene Lake
Management Plan between EPA and the State of Washington. What is the
current status of that MOA and what specifically does it involve?
4. What can you tell us about how you intend to respond to
allegations EPA is committing Clean Water Act violations at BHSS?
Concerns in this area bring to light other ``outstanding'' human health
and water quality issues that apparently the Basin ROD ignores. What
will/is being done about the following:
<bullet> Remaining Yard remediation projects inside BHSS?
<bullet> Central Treatment Plant and acidic mine water
drainage?
<bullet> Central Impoundment Area seeps?
<bullet> Remaining needs for the Page Waste-water treatment
plant?
5. Will the ROD address specific questions raised about the obvious
need for lead-speciation and the bio-availability of lead throughout
the basin?
Other issues that have surfaced since you took office, or have yet
to be resolved since your appointment as Regional Administrator
include:
1. In the Fall of 2001, EPA's Maryanne Deppman, Sheila Eckman and
Dick Martindale attended a CLEAN meeting. At that time, they were
presented data pulled from EPA's web-page containing present-tense
language regarding human health blood-lead levels at Bunker Hill
estimating that, ``. . . 7000 adults are effected.'' What specifically
was done to rectify the web page and misleading information it
contained?
2. Why does EPA R-10's webpage ``In the News'' section show a large
disproportionate share of BHSS/Basin related stories from one
newspaper, rather than both local papers providing a majority of the
coverage? For example, a simple inspection of the web-site shows:
------------------------------------------------------------------------
Percent
January 2000-June 19, 2002 No. posted Overall
------------------------------------------------------------------------
Spokesman Review............................ 159 74
The Coeur d'Alene Press..................... 39 18
Independent/Other........................... 18 8
------------------------------------------------------------------------
3. C.L.E.A.N. has received differing positions from EPA personnel
on separate occasions on whether the Basin ROD will define work areas.
At the first Basin Commission meeting in May, Maryjane Nearman stated
that ROD will specify clean up levels, but no identified work areas.
Later, in a separate C.L.E.A.N. meeting, Maryanne Deppman explained the
ROD will identify work areas. What can we expect?
4. Will/does EPA consider incorporated and unincorporated areas
outside BHSS that have yet to be sampled as part of the ``listed/
designated Superfund'' site?
5. Since the first discussion between C.L.E.A.N. and EPA
representatives (Chuck Findley in June 2001) took place regarding EPA's
``de-listing'' process, C.L.E.A.N. has received several different
versions about de-listing the Lake in particular. Recognizing EPA and
local communities in North Idaho have clear disagreements over the
expanded Superfund boundary, what is EPA Region-10's process to de-list
any area?
6. How soon can EPA's ``de-listing'' process begin for Lake Coeur
d'Alene?
7. When do you anticipate to begin ``de-listing'' areas inside BHSS
that have already been remediated?
8. Why has Region-10 still failed to release final results of EPA's
Summer 2001 public survey?
9. Will EPA allow any further public input on the pending basin
ROD?
10. How much has the Basin-wide RI/FS and expenses associated with
the pending ROD cost to date?
11. What is your desired outcome with the Technical Assistance
Grant funding being considered for the new grant applicant in North
Idaho?
12. Does EPA intend to use CERCLA funds for long-term monitoring
needs for Lake Coeur d'Alene--and the Lake Management Plan?
Final questions from C.L.E.A.N. involve Region-10's current
position on critical matters as they relate to issues on a national
scale, rather than simply local and regional issues. Please help us
understand the following:
1. Why did EPA fail to respond to 2001 interrogatories and requests
for documents by the National EPA Ombudsman, as well as local elected
leaders and industry representatives? When will you respond to the
questions/requests?
2. Why hasn't EPA and its partners in the ongoing Natural Resource
Damages litigation (U.S. vs. ASARCO) settled their case and in turn,
commit new, but limited resources to the ``outstanding'' needs at BHSS
or the new Basin Environmental Improvement Project Commission?
3. Why hasn't EPA Region-10 and National Administrator Whitman
publicly endorsed S. 585 and the intent to supplement other Federal/
industry funds with traditional EPA funding?
4. Should the final outcome involve recommendations that may change
or impact past ROD(s) and or the pending ROD for the basin, please give
us your best understanding of how EPA Region-10 intends to cooperate
on:
<bullet> National EPA Ombudsman investigations that may lead to
recommendations?
<bullet> National Academy of Sciences review of EPA Region-10?
Finally, we've seen first-hand the difficulties associated with the
creation and operation of the new Basin Environmental Improvement
Project Commission. We believe Federal Representation is needed to
accompany the three Idaho Counties, the States, and the Tribe's
representatives. We ask that you help ensure that an appointment is in
fact made to the commission and does take place soon. In the meantime,
we are pleased that your office has been represented in the new
process.
On behalf of C.L.E.A.N. thank you for considering our request to
help us understand the unresolved and pending concerns we have. We look
forward to your responses. Please feel free to contact C.L.E.A.N. if
you have any questions. Thank you.
Sincerely,
Carrie Oja,
Chairman, Community Leaders for EPA Accountability Now.
__________
A Partial Approach to Clean-up: EPA Mishandles Superfund
Investigations, June 25, 2002
appendices*
---------------------------------------------------------------------------
*Retained in Committee's file.
---------------------------------------------------------------------------
Appendix A: Letter from David A. Ullrich, Acting Regional
Administrator, U.S. EPA Region 5, to Concerned Citizens of Lake
Township, October 21, 1998.
Appendix B: ``An SAB Report: Review of EPA's Approach to Screening
for Radioactive Waste Materials at a Superfund Site in Uniontown,
Ohio,'' U.S. Environmental Protection Agency, Science Advisory Board,
(EPA-SAB-EC-94-010, September 1994).
Appendix C: Memorandum from National Ombudsman Robert J. Martin to
Region 5 Administrator Francis X. Lyons: ``Industrial Excess Landfill
Case/Preliminary National Ombudsman Recommendations,'' October 20,
2000.
Appendix D: Letter from Dr. Mark Baskaran, Wayne State University,
to Chris Borello, Concerned Citizens of Lake Township, October 16,
2001.
Appendix E: ``Record of Decision Industrial Excess Landfill
Superfund Site, Uniontown, Stark County, Ohio,'' U.S. Environmental
Protection Agency, (EPA/ROD/RO5-89/098, July 1989).
Appendix F: Maps of Industrial Excess Landfill: Figure 1
Monitoring Well Locations, Figure 2 IEL Alternate Water Supply and
Residential Wells. Exhibit 22 of IEL Groundwater Flow Patterns from
``Comments on the Existing Public Record for the Industrial Excess
Landfill for the Revision of the 1989 Existing Record of Decision,'' by
Bennett & Williams Environmental Consultants, Inc., April 12,1999.
Appendix G: Lautenberg, Frank R., Chairman, and Dave Durneberger,
Ranking Minority Member, ``Lautenberg-Durenberger Report on Superfund
Implementation: Cleaning Up the Nation's Cleanup Program,'' Senate
Subcommittee on Superfund, Ocean and Water Protection, May 1989.
Appendix H: Letter from Resnikoff, RWMA, to U.S. EPA, July 1,
1993.
Appendix I: Ohio EPA Data on Tritium Levels at IEL
Appendix J: Letter from M. Resnikoff, RWMA, to Ohio EPA, April 14,
1993.
Appendix K: Letter from Dr. Mark Baskaran, Wayne State University,
to Chris Borello, Concerned Citizens of Lake Township, September 27,
2001.
Appendix L: E-mail communication from Arjun Makhijani to Lois
Chalmers, ``Re: Tritium--Naturally Occurring,'' February 5, 2002.
Appendix M: Testimony of Dr. Robert K. Simon, Beltz v. Hvbud
Equipment, No. 1993-CV720, Stark County, OH, 1994.
Appendix N: Eyewitness Accounts from Liz and Harlan McGregor,
April 8, 1999; Rex Shover, February 6, 1999; and Jim Shover, March 2,
1999.
Appendix O: Letter from Elaine B. Panitz, MD, FACP, FACPM, to
Assistant Director for Public Health Practice at ATSDR, December 1,
1992.
Appendix P: ``Revised and Supplemented Report of Investigation by
the United States of America Regarding Certain Statements by Charles M.
Kittinger,'' U.S. v. Industrial Excess Landfill, Inc., U.S. District
Court for the Northern District of Ohio, Eastern Division.
Appendix Q: ``Recap of IEL Customers,'' compiled by DOJ
Investigators; ``IEL `Military' Dump Tickets,'' compiled by DOJ
Investigators; and ``Industrial Excess Landfill, Inc., Daily Reports,''
July 8, 1969; August 4, 196X; August 25, 1969; October 26, 1970.
Introduction
The handling of the Industrial Excess Landfill (EEL), a Superfund
site in Uniontown, Ohio, has been a source of contention between the
community and the U.S. Environmental Protection Agency (EPA) for over
20 years. Under the terms of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), also known as Superfund, the
EPA is charged with addressing both the release and the substantial
threat of a release of a hazardous substance into the environment.\1\
Rather than fulfilling its mandate, however, the EPA has only
grudgingly responded to the concerns of the people in this community
and has essentially dismissed their concerns with no explanation for
the problems that appear to afflict them. For over two decades,
residents living near the site, represented by Concerned Citizens of
Lake Township and American Friends Service Committee, have actively
engaged the EPA over the quality of the characterization of the site,
the accuracy of background data for various chemicals and radioactive
materials, the methods used to test for contaminants, and the EPA's
invalidation or dismissal of test results indicating the presence of
radioactive contaminants at levels of concern. Although the community
has raised several concerns regarding IEL, this report will focus
specifically on the EPA's efforts to accurately characterize the
potential for radioactive contamination of the site.
---------------------------------------------------------------------------
\1\ United States Code, Title 42, Chapter 103, Subchapter 1,
Section 9604(a)(1)(A).
---------------------------------------------------------------------------
So far, results have been inconclusive as to whether or not
radioactive contamination exists at IEL and several experts agree that
further testing is required to find out. This report investigates the
EPA's contradicting claims that the site has been adequately
characterized. This site is only one example which serves to illustrate
an apparent tendency at the EPA to give more weight to PRPs' financial
considerations than to favoring remedies that are the most protective
of human health and the environment. Illustrating this bias is EPA's
general practice of allowing the parties suspected of polluting a site
(known as Potentially Responsible Parties or PRPs) to perform the
sampling and analysis of that site. The EPA states that ``[a]llowing
the PRPs to conduct groundwater sampling is not unusual and has been
done at many other Superfund sites like IEL. In fact, having PRPs
conduct and pay for sampling activities is actually the strongly
preferred method of conducting business in the Superfund program,''
(Appendix A). This practice inherently taints the entire process,
however, leaving the impression that the EPA has been ``captured'' by
the industry it is intended to monitor. After all, those polluting
companies have a financial interest in coming up with clean results
lest they have to foot the bill for an extensive clean-up of a site.
POGO is focusing on the IEL case in order to investigate the success of
the EPA's Superfund program in accomplishing its mission.
BACKGROUND
The IEL Superfund site is located in Uniontown, Ohio, about 10
miles southeast of Akron. From 1966 to 1980, the landfill accepted
industrial wastes which contaminated the soil and groundwater at the
site. As a result of the extensive contamination and proximity to
homes, the Environmental Protection Agency placed IEL on the National
Priorities List (NPL), meaning it was one of the country's most
contaminated sites. The companies identified by the EPA as PRPs include
B.F. Goodrich Company, Goodyear Tire & Rubber Company, Bridgestone/
Firestone, Inc., and GenCorp.
In 1989, the EPA issued a Record Of Decision. (ROD) outlining an
aggressive clean-up plan designed to prevent the further spread of
contaminants which would include a protective cap and a pump-and-treat
system. The cost of this remedy, in 1997 dollars, was estimated at
$25.9 million. After the release of the ROD, further studies meant to
fine-tune the remedy were conducted. In 1997, the PRPs took over the
performance of those studies and, based on their data, the EPA issued
an amendment to the ROD in March 2000. The amended ROD substituted a
passive plan, called ``monitored natural attenuation,'' relying on rain
water to cleanse the soil, for the original pump-and-treat design but
retained a cap. The cost of this remedy, in 1997 dollars, was estimated
at $13.6 million. Now, the EPA is attempting to replace the cap portion
of the remedy to a process called ``phytoremediation,'' planting
vegetation to absorb toxins, which will reduce the cost again to
approximately $7 million, in 2002 dollars.
``Monitored natural attenuation'' and ``phytoremediation'' are
processes by which a site is naturally corrected, without human
intervention, within a timeframe that is reasonable. While
phytoremediation and natural attenuation can be effective methods for
addressing some sites, justification for such a remedy requires
extensive site characterization and specific conditions. Selecting
phytoremediation and natural attenuation at sites where unfavorable
conditions exist could result in uncontrolled contaminant release. The
decisions to formulate the original remedy and then change it without
adequate site characterization came under considerable criticism from
outside experts, Uniontown residents, and Congressional
representatives.
Numerous illnesses occurring near IEL, which typically tend to be
caused by radiation, and eyewitness accounts of suspicious disposals at
the landfill, raised the public's concern of possible radiation
contamination at the site. The EPA was skeptical because no indication
of an illegal disposal of radioactive materials at the landfill had
been found during its records search. However, public pressure from the
Uniontown community finally forced the EPA to test for radiation in the
early 1990's. Throughout the 1990's up to the present, the EPA has
maintained that test results have shown no sign of disposal of
radioactive materials at IEL.
But according to experts hired by a community group, Concerned
Citizens of Lake Township (CCLT), and independent scientists, the EPA
sampling and testing has actually been inconsistent and inconclusive at
best. The problems have included the decision by the EPA to limit its
testing to groundwater instead of the much more rigorous method of
testing soil core samples; background wells that are too few in number
and too close to the landfill to be untainted by the site; and the
invalidation or dismissal of results indicating the presence of
elevated levels of radiation, with seemingly weak justification by the
EPA.
Of primary concern is the fact that much of the data has been
highly inconclusive -neither indicative of the presence nor absence of
radioactive contaminants. Yet, the EPA consistently interprets this
data as proving the absence of such contamination and insists that it
has found no indication of radioactive contaminants at IEL. With test
results unable to credibly rule out radioactive contamination, such a
vast array of anecdotal information, and some high level test results,
as well as an unacceptable level of risk if the EPA is wrong, the EPA
appears biased in its assessment of the site. Even when the former
owner of IEL came forward last year with information of buried nuclear
materials at the site, the EPA was skeptical and its year-long
investigation failed to seriously investigate his allegations.
SITE INVESTIGATION
There have been numerous and varied problems with the EPA's
handling of IEL. From the very beginning, unsubstantiated assumptions
based on record searches and information requests seem to have clouded
the judgment of EPA officials handling the EEL case. Because this
initial record search did not uncover any indication of unauthorized
disposal of radioactive contaminants at IEL, the EPA has stated that it
does not consider it likely that such contaminants are present. Yet the
very fact that such a disposal would have been unauthorized, and in
fact illegal, imply that record searches are not likely to be fruitful.
This initial assumption contributed to the selection of groundwater
monitoring over soil core surveys and a less robust method of testing
than may have otherwise been chosen. Other problems include the
inadequate determination of background levels of radiation, inadequate
characterization of the site, and questionable accuracy of the tests.
Though EPA has noted in the past that IEL has undergone more
radiological testing than any other Superfund site, disputed methods
and results of these tests has cast doubt on the EPA's conclusions
about radiological contamination at the site.
Community concerns led the EPA's Office of Solid Waste and
Emergency Response to request that the Science Advisory Board (SAB)
conduct a review of EPA's procedures at IEL. The SAB is part of the EPA
and serves as a technical peer review panel. It established an ad hoc
panel to conduct its review of EEL (Appendix B, p.8). The SAB's report
stated that, ``. . . the [groundwater] tests performed were appropriate
and adequate to detect the occurrence of radionuclides,'' (Appendix B,
p.4). This statement has repeatedly been used by the EPA to support its
selection of testing methods and the resultant conclusion that there is
no widespread problem of radiation at IEL. However, SAB's seemingly
positive statement regarding the groundwater program was not without
conditions. The SAB's full finding said that only with the
implementation of various recommendations made by the SAB, would the
program be adequate. These recommendations included increasing the
number of background wells and testing for radiation at least once a
quarter until successive quarterly samples produce a constant level of
gross alpha and beta that is close to background.\2\ The EPA followed
none of SAB's recommendations, and in fact no sampling or testing for
radiation occurred between 1993 and 2000. Yet the EPA continues to
claim that the SAB supports its groundwater program.
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\2\ Other recommendations include a protective wet-weather survey
to monitor seepage points near the landfill during or following storm
events, including a proactive search for contaminants where they are
most likely to be found; also a full accounting of dissolved and
particulate phase radioactivity. An SAB Report, pp. 2-3.
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There has also been an investigation into the handling of the site
by the EPA's National Ombudsman. The Ombudsman program, among other
things, handles complaints from citizens and industry, undertakes
formal investigations, and takes part in dispute resolutions.\3\ The
Ombudsman, in his preliminary findings, recommended that oversight and
additional characterization of the site was necessary, and that the EPA
should include trenching of the site to obtain a more complete picture
of contamination at the landfill and the establishment of a
``comprehensive monitoring network offsite and performance of microbial
studies . . . to further understand the impact of potential migration
of wastes to nearby homes and drinking water wells,'' (Appendix C,
p.13).
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\3\ http://www.epa.gov/earth100/records/a00154.html, 2 May 2002.
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Looking in the Wrong Place
There are three general approaches available to test for the
presence of radioactive contamination at a site: ground surveys,
groundwater monitoring, and soil core samples. Ground surveys are used
routinely for initial screening and only detect radiation near the
ground's immediate surface. Once a site has become overgrown with
vegetation, it is difficult and often infeasible to use this method.
Groundwater monitoring is effective at detecting the presence of
soluble radioactive materials if they are both leaching into the
groundwater and the concentrations are high enough so that they can be
distinguished from background concentrations. The third option, soil
core sampling, is more effective at identifying smaller quantities of
immobile wastes than groundwater monitoring, but only if the core
borings encounter those wastes, which is often difficult if the wastes
are not spread over a wide area (Appendix B, pp. 11-12).
There are several concerns with the way in which the EPA determined
which of these approaches to use. The EPA has stated that, based on
studies it has performed, groundwater monitoring is the best way to
find radioactivity at IEL if it exists there and that it is sufficient
to properly characterize the waste buried at IEL. The EPA's own SAB,
however, disagreed. The EPA used two scientific studies to support its
selection of a groundwater monitoring program rather than a soil core
sampling program--one demonstrating the infeasibility of the core
monitoring program and the other supporting the adequacy of groundwater
monitoring. However, according to the SAB, both reports ``include
technical flaws and provide no clear evidence that groundwater
monitoring is more sensitive in detecting the presence of radioactive
material in the landfill than would be a soil core sampling program,''
(Appendix B, p. 2). The SAB goes on to state, ``[i]t certainly does not
follow that the network of wells would detect the radiation with high
probability if enough waste had been dumped to cause a threat to human
health. . . . The Panel recognizes that both of these reports are based
on a large number of assumptions that have not been validated for the
IEL site,'' (Appendix B, pp.18-19).
Furthermore, as mentioned earlier, groundwater monitoring is only
effective if the material being monitored is both soluble and leaching
into the groundwater at high enough concentrations to be detected.
However, some radioactive contaminants, such as plutonium tend to
adhere to surfaces such as soil, sides of containers, and filter paper
(Appendix D). One would therefore not expect to find plutonium
concentrations through groundwater testing, even if it existed at the
site. The EPA has insisted that trying to find radioactive
contamination by soil core sampling would be like ``trying to find a
needle in a haystack,''\4\ and that the cost to sample soil cores from
the entire 30 acres, in dollars, time, and possible exposure to toxic
chemicals of the field workers and local citizens, is unacceptably high
(Appendix B, p.17). Contrary to this assessment, however, outside
scientists familiar with IEL are emphatic about the need to implement a
soil coring program in addition to groundwater monitoring. These
experts have stated on numerous occasions that, because some
contaminants are not soluble, testing only groundwater for radiation
will not give an accurate measurement of what radioactive contaminants
may be buried at the site. By their assessments, groundwater testing is
not an adequate methodology to properly characterize radiation at IEL.
A soil core survey of the entire site may not be necessary. Anecdotal
information from eyewitnesses, historical aerial photos of lagoon pits,
and the location of wells that have consistently shown elevated levels
of radiation point to much smaller areas that may be appropriate for a
limited soil core sampling program.
---------------------------------------------------------------------------
\4\ United States Environmental Protection Agency, Office of Public
Affairs, Region 5, Questions and Answers About the Industrial Excess
Landfill Superfund Site, December 1992, p. 6.
---------------------------------------------------------------------------
Tainted Background Wells
Although a groundwater monitoring program without a soil core
survey may not be adequate to detect radiation at TEL, groundwater
monitoring can yield useful results if it is implemented properly.
Before groundwater monitoring can even begin, it is important to
determine the natural levels of chemicals and radiation that would have
existed at a location had the contamination not been there. This is
called the backgrounds\5\ concentration. This data is used as the
control against which data from the site can be compared so that the
site-related contaminants can be distinguished. If ``background'' wells
are tainted by the same contaminants as the site being tested, those
wells do not give an accurate representation of the background
concentration. This point cannot be overemphasized. Without an accurate
measurement of background concentrations, any comparison of site
samples will be skewed. Background data should be gathered from the
local groundwater aquifer, close enough to the site to be from the same
soil and rock formation, but far enough away not to be effected by site
contaminants (Appendix B, pp.13-14). Several background wells over a
large area are necessary to determine what is truly background.
---------------------------------------------------------------------------
\5\ Background includes man-made radiation that is ubiquitous, such
as that from atmospheric fallout from nuclear weapons testing and
accidents such as Chernobyl.
---------------------------------------------------------------------------
During its initial investigation of IEL, the EPA found that surface
water from the landfill travels to Metzger Ditch, which creates the
eastern boundary of the landfill (Appendices E & F). Additionally, the
United States Geological Survey found that the groundwater flow pattern
at IEL is radial which creates a complicated hydrogeological system,
making it difficult to determine what areas have been affected by
contaminants from IEL. This finding emphasizes the need for extensive
sampling and testing to determine the true background of the area.
At IEL, the EPA uses only two background wells. One of the
background wells is about 1000 feet north of the northeastern comer of
the site, and the other is immediately adjacent to the eastern bank of
Metzger Ditch. Those two wells are the source of background data for
groundwater despite the conclusion by outside scientists and the EPA's
own SAB that the wells are not sufficient to reliably characterize
background conditions. Even if the groundwater flow was uncomplicated,
the SAB recommends five to ten wells at intermediate and varying
distances from the site to adequately determine background. The SAB
stated in its report on IEL that ``the two wells are clearly inadequate
for characterizing background,'' (Appendix B, p.14).
The groundwater flow pattern at IEL creates uncertainty about what
direction the groundwater will carry contaminants, and therefore about
which wells are affected. Furthermore, in 1989, the EPA stated that
samples of surface water, sediment, and soil associated with Metzger
Ditch indicated that site-related contaminants discharge into the ditch
(Appendix E). The possibility that these contaminants have similarly
affected the background well next to Metzger Ditch is too significant
to be ignored. The SAB declared data from that well to be
``particularly suspect'' because of the groundwater flow pattern at the
site and the well's proximity to the landfill (Appendix B, p.14). If
the background wells are affected by site contaminants, contaminated
groundwater will appear to be ``natural'' for the area, and therefore
not actionable, when compared with background levels. A larger data set
is necessary to give a reliable and scientifically credible
characterization of background radionuclide conditions (Appendix B, p.
14).
The EPA has ignored the SAB's concerns, and argues that it has
correctly designated only the two wells as background wells and that it
has adequately determined background concentrations of radioactive
materials. Despite contradictory findings by the EPA's own scientists,
it has refused to construct and test additional background wells.
Botched Tests by the EPA and PRPs
To determine whether there is radioactive contamination at IEL, the
EPA screened groundwater from monitoring wells and residential wells
for general radioactive parameters.\6\ As mentioned earlier, it is
essential to have an accurate basis for comparison in order to
determine whether or not radioactive contaminants are present. It is no
less important to have proper collection and analysis of the samples
being tested. If the procedure for handling samples is not followed or
is only inconsistently followed, the results would be highly
unreliable. If wells are not sampled the same way each time, results
cannot be compared to each other--either from the same well over time
or from different wells across area and time.
---------------------------------------------------------------------------
\6\ The general radioactive parameters are gross alpha, alpha
spectroscopy, gross beta, gamma spectroscopy, tritium, and Carbon-14.
Alpha spectroscopy is done when the gross alpha exceeds a set level,
and is a more specific analysis to determine the type and level of
radioactive material in the groundwater.
---------------------------------------------------------------------------
Unfortunately, according to the EPA itself, there have been an
inordinate number of errors and inconsistencies that cast enormous
doubt on the accuracy of testing results from IEL. For example, as
mentioned earlier, both of the studies which were pivotal in selecting
groundwater monitoring over soil core sampling, were highly criticized
by the SAB. Furthermore, the company that conducted one of the tests,
the PRC Corporation, was then contracted by the EPA to collect the
first seven rounds of samples at EEL. Serious errors were made by PRC
Corp. during the collection of samples at EEL including broken chains
of custody,\7\ inappropriate filtering of samples from residential
wells, failure to record the volume of water passed through filters and
the dry weight of the collected solids of filtered samples,\8\ failure
to record the number of filters used on a number of samples, and the
collection of samples in plastic containers which were to be tested for
tritium. Instead of hiring a new contractor to collect samples, the EPA
continued to use PRC Corp. at IEL. En 1997, responsibility for the
collection of samples was handed over to the PRPs, who have an obvious
vested interest in the outcome of the tests. The company hired by the
EPA to oversee the tests is PRC Corp. (now known as Tetra Tech), the
very company that had made so many mistakes in the past when working
for the EPA. After taking over sample collection, the PRPs also made
mistakes which may skew the results, such as inadequate purging of
wells prior to sampling, the failure to immediately preserve samples
for plutonium testing with acid, and the use of plastic containers for
samples which were to be tested for tritium.
---------------------------------------------------------------------------
\7\ The chain of custody is the system by which samples are
constantly monitored to ensure that they are not tampered with.
\8\ ``The failure to record the volume of water passed through the
filter and the dry weight of collected solids for filtered samples at
the IEL site was such that a full accounting of the dissolved and
particulate concentrations of radioactive constituents could not be
made.'' An SAB Report, p. 22.
---------------------------------------------------------------------------
Furthermore, the analysis of these samples has often been
questionable. In 2000, a Department of Justice criminal probe revealed
that analysts at an EPA lab in Chicago may have manipulated test
results to benefit polluters in approximately a thousand cases,
including several Superfund sties. One of those sites was IEL.
Regardless of the Justice Department's investigation, the EPA reasoned
that the test results were still usable since the analysts implicated
in the scandal were only part of the team that analyzed the IEL
samples. Additionally, inappropriate standards have been used to
analyze some of the samples for radioactive contamination at IEL and
have been criticized by outside scientists. The Minimum Detectable
Activity (MDA) is the level of each contaminant that will be tested for
at a site. Amounts of radiation in groundwater below this level are not
detected. If the MDA levels are set too high, potentially harmful
levels of radiation will remain undetected. When testing reveals a
gross alpha level above a certain level\9\ Federal regulations require
a more specific analysis of individual contaminants. On a number of
occasions, the MDA set for gross alpha at TEL was higher than the level
at which Federal regulations mandate such a breakdown. More problematic
is the fact that there have even been occasions when the MDA level at
TEL was set above the Maximum Contaminant Level,\10\ the level which
the EPA considers hazardous to human health and safety. When testing
reveals a gross beta level above a certain level\11\ Federal
regulations require a more specific analysis of individual
contaminants.\12\ EPA failed to do this full characterization and
identification of gross beta during the early rounds; of testing.
---------------------------------------------------------------------------
\9\ 5 pCi/L
\10\ 15 pCi/L
\11\ 50 pCi/L
\12\ United States Code of Federal Regulations, 40 CFR 141.26
(b)(4)(i).
---------------------------------------------------------------------------
In addition to these mistakes, however, there are the larger
problems of procedures and standards that have been approved by the
EPA, but that outside scientists believe may not be protective of human
health and the environment. Such procedures and standards include the
filtering of monitoring well samples and the use of PRPs to conduct the
investigation.
The method consistently used for testing at IEL has been EPA's
``Gross Alpha and Gross Beta Radioactivity in Drinking Water.'' This
method contains an inherent bias because it is intended to test
drinking water. Therefore, it allows the filtration of sediment from
the samples of groundwater, thereby increasing the likelihood of
underestimating, or missing completely, any man-made radiation such as
plutonium that tends to adhere to sediment or soil. Although the EPA
states that the regulations require filtration to be done,\13\ several
experts disagree with the EPA's use of the method at this site. The SAB
also found this to be a problem, stating that, ``EPA does not address
radioactivity in suspended sediment, [making it] difficult to address
whether or not the levels observed in the filtrate are within
background levels, ``(Appendix B, p.15).
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\13\ United States Environmental Protection Agency, Office of
Public Affairs, Region 5, Questions and Answers About the Industrial
Excess Landfill Superfund Site, December 1992, p. 8.
---------------------------------------------------------------------------
The EPA's use of PRPs to conduct the investigation of a site is a
systemic problem that potentially taints the clean-up of every
Superfund site. A 1989 report from the Chairman and Ranking Member of
the Senate Subcommittee on Superfund, Ocean and Water Protection found,
among other things, that statistically, the involvement of the PRP's
led to cheaper remedies that did not necessarily protect health and
safety. The report stated, ``Enforcement lead sites (those sites where
EPA is seeking to make potentially responsible parties assume cleanup
costs) rely more on so-called containment (e.g. preventing the movement
of rather that [sic] detoxifying) of contamination and less on
treatment (including the most permanent types of treatment) than sites
designated for public funding. This data raises the disturbing
possibility that EPA, in an effort to achieve settlements or to compel
responsible parties to pay for cleanups, may be sacrificing health and
environmental standards required by the law,'' (Appendix G, pp.10-11).
This study was done at a time when regulations required the EPA to lead
the investigations of Superfund sites, but to negotiate settlements
with the PRPs. Current practice within the EPA allows much deeper
involvement by the PRP's, even allowing them to conduct the very tests
which help determine the remedy. One can only assume that more
involvement by the PRPs would only exacerbate the problem cited in the
Subcommittee's 1989 report. The PRP's inclination to minimize both
current and future costs is to be expected. It is the EPA's job to
protect the public from this conflict.
At EEL specifically, when the PRPs took over sampling in 1997, they
did not perform any sampling or testing for radiation until August
2000. After only one round of radiation testing, the EPA accepted the
PRPs decision to drastically reduce the number of wells to be tested
for radiation from 50 to 7. Unfortunately, the wells that were dropped
from testing included several that were found to have elevated levels
of radiation in the past.
FINDINGS OF RADIATION
Both the EPA and the Ohio EPA (OEPA) have collected groundwater
samples for radiochemical analyses. Even with all the errors,
inconsistencies in sampling, and questionable methods and standards,
there have been findings of radioactive materials at EEL from the
beginning--all of which have been discounted by the EPA and the PRPs.
At EEL, gross alpha concentrations have been consistently elevated,
sometimes as much as tens of times higher than background well
measurements for the rest of the county (Appendix H); gross beta has
been elevated during numerous sampling rounds in a number of wells (as
recently as May 2001), but has been consistently higher in two wells in
particular; uranium has been found in various wells during every round;
plutonium, which is man-made, has been found during several sampling
rounds in various wells; and tritium and technicium-99, two other man-
made radioactive contaminants, have been found in several wells.
However, none of these findings have been given any credence by the
EPA. The gross alpha and gross beta readings have been attributed to
turbid water samples and naturally occurring radionuclides. The uranium
findings have been dismissed as being background concentrations.
Plutonium, a man-made radionuclide, has been found a number of times
and dismissed for various reasons: in 1990, the findings were
invalidated; in 1991 and 1992 the EPA found traces of plutonium in deep
groundwater that were said to be at only marginally detectable
concentrations, which the EPA declared to be inconclusive; in November
2000, plutonium was found in deep groundwater in the background well
next to Metzger Ditch, and the EPA said the concentration must be a
background level because it was found in a background well; plutonium
was detected in two other wells during the November 2000 round, but
again the EPA found them to be inconclusive. There have also been
several findings of tritium, another man-made radionuclide, at levels
above Federal drinking water standards that were deemed invalid by the
EPA. However, the OEPA found numerous tritium levels well above
background that were validated (Appendix I). Because these were not
above the drinking water standards, however, the EPA has concluded that
it is not consistent with a public health concern. The technicium-99,
yet another man-made radioactive contaminant, that was found was
dismissed, again because it was not above the drinking water standard
and therefore not considered to be of concern.
Other scientists take a different view of the findings that the EPA
has dismissed so readily. For example, the OEPA's measurement for gross
alpha from a shallow well in August 1992 was 140 times background
measurements for the rest of the county. According to one outside
scientist, measurements of that magnitude cannot be due to naturally
occurring radioactivity (Appendix J). After analyzing November 2000
results, a second outside scientist concurred that there is man-made
radiation present at the landfill, saying specifically that the uranium
results ``can either be due to bad data or there is some serious
contamination of non-natural uranium . . .'' (Appendix K).
Scientists also differ from the EPA regarding the findings of
plutonium. Upon review of the November 2000 results, Dr. Mark Baskaran
found the concentration of plutonium in the groundwater at IEL to be
about 1000 times higher than that found in surface waters such as
lakes, rivers, or oceans, indicating that the plutonium present at IEL
is ``most likely derived from one or more local sources,'' (Appendix D)
rather than from atmospheric fallout. The mere fact that the plutonium
was found in groundwater as opposed to surface water indicates that it
is most likely not due to atmospheric fallout. He also found the amount
of measurement uncertainties, the EPA's statistic estimating the
accuracy of test results, associated with the plutonium concentrations
to be ``ridiculously high.'' He stated that any academic institution
where there is any active environmental radioactivity research being
conducted would be able to improve upon that precision by 100 to 1000
times (Appendix D).
On several different occasions, validated groundwater test results
from, the OEPA showed elevated levels of tritium, including levels up
to 6,600 pCiIL. According to Dr. Arjun Makhijani, concentrations of
``300-4000 picocuries per liter in groundwater can be regarded as of
anthropogenic [man-made] origin, provided that the measurements are
reliable,'' (Appendix L). While these levels are not direct evidence of
harmful levels of radiation, because tritium is rarely found naturally
in groundwater, they can be viewed as evidence of site-related
radioactive contamination (Appendix B, p.15). Because technicium-99 is
also man-made radiation, its very presence in groundwater from the
landfill can also be viewed as evidence of site-related radioactive
contamination.
Additionally, in response to two testing rounds that were
invalidated by the EPA, an outside expert reviewed the methods of one
of the labs which EPA blamed for the invalidation. He found that, while
the methods used by the lab were different from those used by the EPA,
they were not wrong and that the results were ``no more invalid'' than
those from the EPA's own labs (Appendix M, p.51).
ANECDOTAL EVIDENCE
Several witnesses have testified to seeing U.S. military vehicles
entering and leaving IEL, some with radiation markers (Appendix N).
Each witness reported strikingly similar accounts of suspicious U.S.
Army activity at IEL in the late 1960's and the early 1970's. Of the
four eyewitness accounts discussed here, two have extensive experience
in recognizing radiation symbols, and a third is the former owner and
operator of the landfill.
In a notarized statement to the EPA, Liz and Harlan McGregor of
Uniontown, swore to seeing ``many army trucks come into the landfill in
the early 1970's. . . . [The trucks] were loaded with 50-100 stainless
steel canisters on flatbed trucks. [The] canisters had hazardous
markings on them . . . . The tankers would come in all through the
night and dump.'' A decade later a U.S. Army engineer visited their
home in Uniontown to inspect the premises without explanation.
Rex Shover, a second eyewitness, served on the Uniontown Volunteer
Fire Department from 1958 to 1976. In a sworn affidavit dated February
6, 1999, Mr. R. Shover stated that during his time as a volunteer
fireman, he ``personally saw tanker trucks carrying radioactive
insignia enter the Industrial Excess Landfill late at night after the
landfill was closed.'' Mr. R. Shover also asserted that his firefighter
training included the labeling of radioactive materials. ``I am
familiar with and can recognize placards and labels used for
radioactive materials.''
At the IEL public meeting held in Uniontown on March 2, 1999, Mr.
R. Shover read a letter on behalf of a third eyewitness, his brother
Jim Shover, who now lives in California. In the letter, Mr. J. Shover
stated that he had spent his youth in Uniontown and had been employed
at IEL as a mechanic's helper in 1964--and 1965. Mr. J. Shover stated
that, after joining the U.S. Navy in 1966, he often returned to
Uniontown, and recalls seeing U.S. Army tanker trucks with radioactive
material placards entering and leaving IEL on several occasions between
1966 and 1971. During his Navy career, Mr. J. Shover received training
in nuclear warfare, industrial radiology, radioactive materials, and
associated health problems in humans, and served on the Nuclear,
Biological, and Chemical rapid response team, making him uniquely
qualified to identify military vehicles and radiation symbols. He
identified the trucks as ``specially designed double-lined tankers
designed to transport liquid radioactive waste material.''
In addition, in 1992, the Agency for Toxic Substances and Disease
Registry (ATSDR) requested health information regarding IEL from Dr.
Elaine Panitz. In her response she stated, ``the case of Patient #1 . .
. presents disturbing evidence that radiation (and possibly other
carcinogens such as benzene, vinyl chloride, and chlorophenols) may be
causing neoplasms [tumors] among residents surrounding the IEL site.
The routes of exposure are likely to include ingestion (well water,
fruits and vegetables), skin absorption (well water for bathing and
washing clothes, as well as swimming or playing in marshy areas near
IEL), and inhalation (radioactive dusts released from the landfill,
radioactive gases released from contaminated ground and groundwater),''
(Appendix O).
These eyewitness accounts coupled with the above medical opinion
raise reasonable questions about the material buried at IEL as well as
the EPA's strategy in investigating credible concerns from Uniontown
residents. During a recent year-long EPA investigation of the testimony
of IEL former owner, Charles M. Kittinger, none of these eyewitness
accounts were considered, even though the EPA itself had statements
from each of them. This oversight casts considerable doubt on the
notion that the EPA is attempting to find the truth.
Charles M. Kittinger, the owner of the EEL site from 1965 to 1972,
went to EPA officials a year ago to admit that he had allowed the
illegal disposal of nuclear materials by the U.S. Army at EEL. Since
his disclosure, the EPA appears to have spent its resources attempting
to discredit Mr. Kittinger and his allegations but has yet to determine
the truth by a more thorough characterization of the site.
That significant time has passed since the incident obviously
confuses the issue, raising questions as to the accuracy of witness
accounts and 30 year old memories. This becomes a difficult obstacle in
analyzing personal testimonies. This is to be expected. What is
problematic is the inconsistency with which the EPA investigators use
this fact. For example, while some statements from Mr. Kittinger's
testimony are discredited due to ``the possibility that his
recollection of events has been colored,'' (Appendix P, p. 7) others
are taken at their most literal meaning, such as the exact size of the
hole or the capacity of the trucks that carried the materials, which
the government maintains cannot be accurate. By insisting that Mr.
Kittinger's memory must be entirely accurate or entirely a fabrication,
the investigators are able to dismiss facts and test results that may
indicate something unusual. Under these parameters, no weight is given
to evidence of a 1969 excavation site because it is 40 feet from where
Mr. Kittinger indicated and 15 feet smaller than Mr. Kittinger had
recalled (Appendix P, p. 97). In another example, a remote sensing
anomaly is found a mere 11 feet deeper than Mr. Kittinger said the
containers of nuclear material were buried, and is therefore entirely
dismissed (Appendix P, p. 116). If it can be suggested that time has
clouded Mr. Kittinger's memory of facts that the government wishes to
deny, then time may also blur the memory of such specific details.
The government's conclusions that Mr. Kittinger's claims are
unfounded are partly based on the lack of documentation of the alleged
delivery of this nuclear material. However, if such an illegal
operation had occurred, the involved parties would not likely be
interested in keeping detailed records of their actions. By setting
preposterous standards of proof for the investigation, it appears the
EPA has ensured that it will not come up with an answer it doesn't
want.
Even when there does appear to be some documentation, the
investigators go out of their way to discredit the existing documents.
At one point, the EPA's report of its investigation states that based
on a review of the delivery tickets, no deliveries were made by the
U.S. Army. It was not until the original draft of the report was
completed and questions were raised on this point, that the EPA
investigators admitted that no delivery tickets were reviewed that were
dated prior to 1970 (Appendix P, p.16). Considering Mr. Kittinger's
belief that the delivery was made in 1968 or 1969, though possibly
1971, it is not surprising that the investigation had not revealed
corroborating documents.
When earlier tickets were later obtained and reviewed,
corroborating evidence was discounted. Three entries in the delivery
log (for which the delivery tickets are missing) were marked as
deliveries from the ``U.S. Army'' (Appendix P, p. 19, & Appendix Q).
However, it is assumed by the investigators that what was actually
meant was the U.S. Army National Guard, which does not have access to
nuclear materials. Because the government has a clear interest in the
outcome of the investigation, it is disingenuous to draw such favorable
conclusions from inconclusive evidence.
The investigators spent considerable time analyzing the policies
and regulations of the U.S. Army, the Army National Guard, the
Department of Energy, and NASA, apparently in order to discount the
theory that nuclear materials would have been disposed of by them at
IEL. However, it can clearly be assumed, even without such analysis,
that a strictly illegal act would not be permitted by any of these
agencies' regulations. Therefore, the extensive analysis of these
regulations seems to be no ping more than a diversionary tactic.
For the investigation, the government solicited experts to assist
in the analysis of historical aerial photographs and to apply remote
sensing technologies to the landfill. The investigation report itself
states, ``the limitations of both the aerial photo analysis and the
remote sensing technologies must be acknowledged,'' (Appendix P, p.6).
But even when using these limited methods, the investigators seem to
intentionally overstate their case, drawing conclusions where none are
warranted.
In the report's description of the aerial photo analysis, the
investigators admit that the photographs are incomplete and ``do not
exclude the possibility that the hole Mr. Kittinger described
existed,'' but only that the available photos cannot prove that it did.
Even after admitting that the photos were inconclusive, however, the
investigators use them to imply that Mr. Kittinger's allegations are
false, stating, ``the aerial photographs from the relevant timeframe
cast significant doubt on Mr. Kittinger's description of the hole,''
(Appendix P, p. 6).
The investigators' analysis of the remote sensing technologies is
similarly flawed. The entire test, designed by the investigators,
relies on the assumption that the radioactive materials are buried
apart from any other metal objects. Yet this assumption is in direct
conflict with Mr. Kittinger's statements that the radioactive materials
were buried near several junked cars. Given this contradiction, the
report admits, this technology can tell ``nothing about the presence or
absence'' of containers of nuclear material (Appendix P, p. 113). Yet
despite this flaw, the results from the test are continually used
throughout the report to discredit Mr. Kittinger's claims.
The remote sensing test, in fact, did turn up the one result that
may actually corroborate Mr. Kittinger's claims, yet the investigators
attempt to explain it away. The report states that there is ``one
`anomaly' that might be caused by stainless steel,'' which would be
consistent with Mr. Kittinger's claims. Their defense against this
startling evidence is to state that, ``this anomaly could also be
caused by other materials, ``(Appendix P, p. 7). Here again,
inconclusive evidence, and even evidence that favors Mr. Kittinger's
claims, is implied to favor their own case.
It is true that Mr. Kittinger's testimony raises more questions
than it answers. The real failure of this investigation is not that it
is unable to either prove or disprove Mr. Kittinger's claims, but that
it is willing to brush these new questions aside without addressing
them. The ultimate conclusions of the report are based on the failure
to differentiate between evidence that does not definitively confirm
Mr. Kittinger's claims and evidence that proves Mr. Kittinger's claims
false. Ultimately, the evidence is inconclusive. The EPA seems willing
to assume that inconclusive results imply there is no nuclear material
at the site, thereby possibly putting hundreds of lives at risk. EPA's
National Ombudsman has called for extensive testing and site
characterization which would give much more conclusive evidence than
was gained through this investigation.
CONCLUSION
The Industrial Excess Landfill in Uniontown, Ohio, is one case
study of the EPA's mishandling of Superfund sites. The overt influence
of the polluters in Superfund clean-ups must be addressed to ensure
that the EPA is adequately protecting human health and safety as well
as the environment. Furthermore, the lack of community access or
influence, particularly in comparison to that of the polluters, should
be immediately rectified. It is, after all, the communities that have
the most to lose from an inadequate clean-up, while it may be noted
that the polluters have the most to gain by a cheap remedy. It is the
responsibility of the EPA to remain unbiased and fairly remedy
Superfund sites.
RECOMMENDATIONS
<bullet> Legislatively create a National Ombudsman's Office which
is wholly independent of the EPA. The Office should be placed in either
a White House office or as part of the legislative branch, perhaps
attached to the General Accounting Office.
<bullet> All ongoing investigations into a site, such as those
performed by the SAB or the National Ombudsman, must be completed, and
the recommendations made available to the public prior to the
implementation of a Record Of Decision.
<bullet> The Potentially Responsible Parties (PRPs) should
reimburse the government for the cost of, rather than being allowed to
initially pay for, a site-related investigation. The EPA should be
prohibited from allowing PRPs to conduct investigations or testing.
<bullet> If the government continues to allow the PRPs to remain a
part of the investigation of sites, it should allow and facilitate,
through financial and other means, communities to hire qualified
experts to take samples for analysis from the site. The data and
recommendations resulting from a community-led investigation should be
given equal weight as those submitted by the PRPs.
<bullet> The scientific validity of standards and procedures
utilized by the EPA, such as the use of filtering, needs to be re-
evaluated by an independent organization such as the National Academy
of Science.
<bullet> Technical corrections or recommendations geared toward
strengthening protections or addressing community concerns, such as
those made by the Science Advisory Board (SAB) or the National
Ombudsman's Office, that are not implemented by the EPA, must be
justified and certified by the EPA Administrator.
<all>