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Recent Developments in the EPA Office of the Ombudsman
Subcommittee on Environment and Hazardous Materials
Mr. Robert Martin
Thank you Mr. Chairman and
distinguished members of the Committee for the opportunity to appear and testify
before you in connection with recent developments in the EPA Office of the
Inspector General. 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 ten 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
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. § 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 decision making
without first undoing or making exceptions from the rule."
O'Reilly, James T.,
Administrative Rulemaking, § 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, § 4.4 (1984) (citations omitted).
This principle was clearly stated by the United States 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. § 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 § 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. § 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, six 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, § 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, § 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 § 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. § 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. § 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.) 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 two 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.
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