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Recent Developments in the EPA Office of the Ombudsman
Subcommittee on Environment and Hazardous Materials
Mr. Mark Bialek
Good Morning Chairman Gillmor and Members of the Subcommittee. My name is Mark Bialek and I am Counsel to the Inspector General of the Environmental Protection Agency (EPA). I am pleased to speak to the Subcommittee today on behalf of the Office of the Inspector General (OIG) about recent developments in the 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, the Inspector General believed our office was well suited to assume the investigative functions of the Ombudsman's office. In April of this year, the Ombudsman's Office was transferred from EPA's Office of Solid Waste and Emergency Response (OSWER) to the OIG. Congress established the Inspectors General through the Inspector General Act of 1978 (IG 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 IG 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 OIGs in order to ensure 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 assure 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 OIGs 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. Some, including the GAO, have debated whether EPA OIG's assumption of the Ombudsman function is consistent with standards established by the American Bar Association (ABA) or other organizations for the conduct of Ombudsman business. It was not our intention to change the function of the Ombudsman after it transferred to the OIG to conform to ABA standards for a "traditional" Ombudsman. We will not become advocates for individuals or groups. We will not be disseminating basic information about the programs and operations of the EPA. We will review all complaints in an impartial, objective manner, assess the quality of EPA's program management and decision-making, and issue reports (to Congress and EPA) with findings and recommendations designed to correct problems. Since the early 1980s, 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. However, if the primary responsibility for handling the matter rests elsewhere in the Agency, we will make a referral. In many cases, identification and referral of a matter by the OIG are sufficient to get Agency action. This is our current operating procedure for all complaints. In some cases, we expect to find that 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 his or her 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 of the Ombudsman function, we have expanded the services of the Ombudsman to include all EPA administered programs, rather than limiting them 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 13 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. Mary "Peggy" Boyer was appointed OIG's Acting Ombudsman in April. We then inventoried and organized 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. Currently, we have eight OIG staff members assigned full-time 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 OSWER 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 ten cases range in age from more than 20 months to five years and appear to be unresolved. These cases include the following Superfund sites: Marjol Battery, Shattuck Chemical, and Bunker Hill/Coeur d=Alene. Further, we are determining the status of seven additional cases for which we have found documents or have media accounts. These include 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 resolve these as quickly as possible. We have also begun outreach efforts in order both to explain how we plan to perform the Ombudsman function and to collect additional information. We offered to brief any member of Congress who has indicated an interest in these cases. As a result, we have met with a number of individual members, including Congressman Bilirakis. We remain willing to continue to brief members or committee staff on our Ombudsman work. We have made contact with citizen groups in several of the communities where there are open cases. We participated in a public hearing in Tarpon Springs, Florida this past weekend hosted by Congressman Bilirakis, and we will be participating in meetings in Idaho and Washington later this week. In resolving the existing cases, 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 incoming cases. This includes case selection criteria. We have been working closely with the Regional Ombudsmen and are developing a coordinated approach for addressing the issues at all levels in a timely and appropriate manner. We have also met with the Ombudsman from the Agency on Toxic Substances and Disease Registry (ATSDR) on several occasions regarding work of mutual interest. I believe that public reporting on the caseload, activities, and accomplishments of the Ombudsman is a vital and important responsibility. I firmly believe that professional standards of conduct, a transparent review process, and public accountability strengthen the credibility of the reviewer's findings. In order to provide accountability and communication with the public and Congress, the work of our Ombudsman must meet the same high standards we hold for all our other products. At least annually, we will publish a report summarizing our work, including a status report on the cases opened by the National Ombudsman and recommendations or findings reported to the Agency. We already provide similar reports semiannually for all our work, and annually for Superfund program work. Members of the Subcommittee, the Inspector General and I are 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 our commitment to be responsive to any questions or comments you may have as we move forward with this important work. We welcome your assistance in providing any information or suggestions relating to our new responsibilities. That said, I hope that you withhold judgement 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 be glad to respond to any questions the Subcommittee may have at this time.
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