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Recent Developments in the EPA Office of the Ombudsman
Subcommittee on Environment and Hazardous Materials
The Honorable Robert E. Fabricant
Good morning, Mr. Chairman and Members of the Subcommittees. My name is Robert Fabricant and I am the General Counsel for the Environmental Protection Agency. I appear today to discuss the move of EPA's Office of Solid Waste and Emergency Response (OSWER) ombudsman function from OSWER to the Office of the Inspector General (OIG). I would like to open my remarks by commenting briefly on the history of the OSWER ombudsman function. In 1984, Congress amended the Resource Conservation and Recovery Act (RCRA) and required EPA to establish an ombudsman function to address individual complaints and requests for information about the Agency's programs and policies under the Solid Waste Disposal Act and to make appropriate recommendations to the Administrator. The amendments specifically provided that the Office of Ombudsman would cease to exist as of November 1988. After the statutory authority for the ombudsman expired in 1988, EPA, as a matter of policy, continued to maintain an ombudsman function within OSWER. In 1991, EPA expanded the function by broadening the scope of OSWER programs or activities over which the ombudsman could receive complaints or requests for information. In addition, as part of various Superfund administrative reforms undertaken by EPA in 1995, regional ombudsman positions were established in the EPA Regional Offices. The regional ombudsmen addressed Superfund issues and, depending on the region, other issues including RCRA, underground storage tanks (UST), and chemical emergency prevention and preparedness. Since its original establishment in 1984, the OSWER ombudsman function has, like other Agency activities and offices, undergone occasional review and reorganization. Starting in 2000, OSWER had begun to actively and substantially reevaluate the ombudsman function and consider proposals to further reorganize the activity. That work continued into 2001, when EPA was informed that the General Accounting Office (GAO) had initiated its own inquiry into the OSWER ombudsman function. In light of GAO's ongoing study, the Agency suspended its internal review to await GAO's report and recommendations. At the time of GAO's study, the ombudsman reported to the Deputy Assistant Administrator for OSWER, who was responsible for supervisory, performance, and budget decisions of the ombudsman function. In September 2001, GAO issued its report, entitled "EPA's National and Regional Ombudsmen Do Not Have Sufficient Independence." GAO indicated that it had reviewed the ombudsman function in response to concerns about "institutional barriers" to the fulfillment of the ombudsman function. GAO noted that an effective ombudsman must have both actual and apparent independence from any person who may be the subject of a complaint or inquiry. GAO also observed that the OSWER ombudsman function, responsible for addressing complaints and inquiries about OSWER programs and activities, was not independent of the organizational unit it was responsible for investigating. GAO recommended that EPA take steps to strengthen the independence of the OSWER ombudsman function by locating it outside of OSWER. EPA reviewed and carefully considered GAO's report and recommendations. GAO's main concern that the independence of the ombudsman function was jeopardized by the location of the function within OSWER echoed comments that EPA had received from members of Congress and others. Although recommending that the ombudsman function be located outside of OSWER, GAO's report did not recommend any specific location for the function. In meetings to consider GAO's recommendations, EPA officials considered various options for relocating the ombudsman function, including the Office of the Administrator, the Office of Inspector General (OIG), and my office, the Office of General Counsel. After weighing these options and considering staff recommendations, EPA concluded that OIG offered the greatest opportunity to ensure the independence of the ombudsman function. OIG's operations, budgeting, and hiring decisions are made independent of any influence or control by OSWER. In addition, OIG already had considerable expertise and resources dedicated to auditing and investigatory activities and a well-established professional reputation. OIG is by statute an independent organization within the Agency with an excellent record of objectivity in evaluating the interests of all parties and ensuring that inquiries receive appropriate and thorough answers. The Inspector General agreed that the ombudsman function would complement other activities within OIG and agreed to accept the function. Exercising administrative and managerial discretion, EPA decided on November 27, 2001 to relocate the ombudsman function to OIG. In January 2002, then ombudsman Robert Martin and an organization known as the Government Accountability Project (GAP), filed suit in the United States District Court for the District of Columbia to enjoin EPA's decision to move the ombudsman function to OIG. On April 12, 2002, the Court dismissed the ombudsman's lawsuit. The decision to move the ombudsman function to OIG became effective on April 13, 2002. I understand that Mr. Martin resigned from EPA effective April 29, 2002. Although the Federal District Court lawsuit challenging the decision to move the ombudsman function was dismissed, administrative claims relating to the ombudsman function have been asserted by certain current or former EPA employees, including claims before the United States Department of Labor and the United States Office of Special Counsel. EPA is responding to that administrative litigation. Questions about the continuing activities of the ombudsman function since April 13 will be addressed in testimony by representatives of EPA's OIG. Thank you for the opportunity to appear before you today. I am happy to respond to the Subcommittee's questions at this time.
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