Text of
Printed Hearing
The Committee on Energy and Commerce
W.J. "Billy" Tauzin, Chairman
Recent Developments in the EPA Office of the Ombudsman
Subcommittee on Environment and Hazardous Materials
Subcommittee on Health
July 16, 2002
10:00 AM
2123 Rayburn House Office Building
<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:81490.wais]
RECENT DEVELOPMENTS IN THE EPA OFFICE OF THE OMBUDSMAN
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
and the
SUBCOMMITTEE ON HEALTH
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JULY 17, 2002
__________
Serial No. 107-123
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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_________________________________________________________________________
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COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
RICHARD BURR, North Carolina BART GORDON, Tennessee
ED WHITFIELD, Kentucky PETER DEUTSCH, Florida
GREG GANSKE, Iowa BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico TOM SAWYER, Ohio
JOHN B. SHADEGG, Arizona ALBERT R. WYNN, Maryland
CHARLES ``CHIP'' PICKERING, GENE GREEN, Texas
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
TOM DAVIS, Virginia THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
ERNIE FLETCHER, Kentucky
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Environment and Hazardous Materials
PAUL E. GILLMOR, Ohio, Chairman
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
GREG GANSKE, Iowa EDOLPHUS TOWNS, New York
JOHN SHIMKUS, Illinois SHERROD BROWN, Ohio
HEATHER WILSON, New Mexico GENE GREEN, Texas
VITO FOSSELLA, New York KAREN McCARTHY, Missouri
(Vice Chairman) THOMAS M. BARRETT, Wisconsin
ROBERT L. EHRLICH, Jr., Maryland BILL LUTHER, Minnesota
STEVE BUYER, Indiana LOIS CAPPS, California
GEORGE RADANOVICH, California MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania HENRY A. WAXMAN, California
MARY BONO, California PETER DEUTSCH, Florida
GREG WALDEN, Oregon JOHN D. DINGELL, Michigan,
LEE TERRY, Nebraska (Ex Officio)
ERNIE FLETCHER, Kentucky
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
Subcommittee on Health
MICHAEL BILIRAKIS, Florida, Chairman
JOE BARTON, Texas SHERROD BROWN, Ohio
FRED UPTON, Michigan HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania TED STRICKLAND, Ohio
NATHAN DEAL, Georgia THOMAS M. BARRETT, Wisconsin
RICHARD BURR, North Carolina LOIS CAPPS, California
ED WHITFIELD, Kentucky RALPH M. HALL, Texas
GREG GANSKE, Iowa EDOLPHUS TOWNS, New York
CHARLIE NORWOOD, Georgia FRANK PALLONE, Jr., New Jersey
Vice Chairman PETER DEUTSCH, Florida
BARBARA CUBIN, Wyoming ANNA G. ESHOO, California
HEATHER WILSON, New Mexico BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES ``CHIP'' PICKERING, ALBERT R. WYNN, Maryland
Mississippi GENE GREEN, Texas
ED BRYANT, Tennessee JOHN D. DINGELL, Michigan,
ROBERT L. EHRLICH, Jr., Maryland (Ex Officio)
STEVE BUYER, Indiana
JOSEPH R. PITTS, Pennsylvania
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(iii)
C O N T E N T S
__________
Page
Testimony of:
Bialek, Mark, Office of Counsel, U.S. Environmental
Protection Agency.......................................... 19
Fabricant, Robert E., General Counsel, U.S. environmental
Protection Agency.......................................... 9
Malinowski, Heather, Pinellas-Pasco Technical Assistance
Grant...................................................... 66
Martin, Robert............................................... 58
Stephenson, John B., Director of Environmental Issues, U.S.
General Accounting Office.................................. 12
Material submitted for the record by:
Sperling, Robert L., prepared statement of................... 85
(v)
RECENT DEVELOPMENTS IN THE EPA OFFICE OF THE OMBUDSMAN
----------
TUESDAY, JULY 16, 2002
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Environment and Hazardous
Materials Joint with Subcommittee on Health,
Washington, DC.
The subcommittees met, pursuant to notice, at 10 a.m., in
room 2123, Rayburn House Office Building, Hon. Paul E. Gillmor
(Chairman, Subcommittee on Environment and Hazardous Materials)
presiding.
Members present from the Subcommittee on Environment and
Hazardous Materials: Representatives Gillmor, Shimkus, Pallone,
Barrett, Luther, and DeGette.
Members present from the Subcommittee on Health:
Representatives Bilirakis, Norwood, Brown, Barrett, Pallone,
Stupak, and Wynn.
Staff present: Jerry Couri, policy coordinator, Amit
Sachdev, majority counsel; Hollyn Kidd, legislative clerk, and
Dick Frandsen, minority counsel.
Mr. Gillmor. The subcommittee will come to order. And
today's hearing is being called at the request of Mr. Bilirakis
to explore recent events in the Office of EPA's Ombudsman, and
it is actually a joint hearing of the Environment and Hazardous
Materials Subcommittee and the Health Subcommittee of which Mr.
Bilirakis is the chairman.
The Office, which Congress established in 1984, was a 4-
year project thought to build a bridge between concerned
citizens and government bureaucracy; bringing the government
processes back to the people. Internal and external events over
the past several years have created a public liaison that has
been eager to be responsive to the public. But not necessarily
responsible to it. And a true Ombudsman is both.
While personalities have dominated some of this past
history, the heart of the alleged problems within the
Ombudsman's Office can be trace of the question of whether a
neutral entity can act independently within an agency that
supports it. People who have previously served in that Office
have asserted that it cannot.
Last year, the General Accounting Office issued a report
detailing how the Ombudsman functions. In April of this year,
Administrator Whitman moved the Ombudsman function into the
statutorily-independent EPA Office of Inspector General. Some
believe that a conflict of interest still exists with the
Ombudsman's function housed within the Inspector General's
Office. I think that assessment is premature, but I'm eager to
hear their suggestion for the proper way to handle this matter.
We will not reach all the answers this morning, but I hope
we understand the importance of breaking down the barriers of
bureaucratic indifference and opening these processes to free
and open input, creativity, and constructive criticism in
defense of human health and the environment.
Even though Congress has not authorized the Hazardous Waste
Ombudsman Office in 14 years, EPA has found this function
important enough to administratively kept it alive all this
time. And whether we agree on the proper place to put the
Ombudsman, we must not shut out the public from the important
decisions on their local areas and environments.
I look forward to hearing from our very distinguished panel
of witnesses and to thank them for taking the time to be with
us during a very hectic time on Capitol Hill. They possess the
greatest background and experience to help us begin to answer
some of the questions that will help us maintain an independent
Ombudsman function within the EPA.
Though some may want to get into the personalities or past
disputes behind this issue, we must remember that it was
Congress that thought up this role and we should ensure that it
operates responsively to the public and responsively to the tax
payers.
Additionally, I'm very interested in the GAO statement and
what they have found in respect to the Ombudsman Office
operations within the Office of Solid Waste and Emergency
Response. We must seek the lessons of the past if we're going
to avoid problems in the future.
And I'd like to recognize the gentleman from New Jersey,
the ranking member of the Environment Subcommittee, Mr.
Pallone.
Mr. Pallone. Thank you, Mr. Chairman, and I see Chairman
Bilirakis here as well. This is a joint subcommittee hearing. I
just wanted to mention, before we began, a couple of process
things, Mr. Chairman, because I am concerned that we just found
out about this hearing last week and I think that we have to
pay more attention to the process so that the minority is aware
when the subcommittee is actually going to have hearings in a
little more timely fashion.
In addition, our side, I don't know about the Republican
side, but the Democrats didn't receive a copy of the testimony
from the EPA until about 6:30, 7 o'clock last night. And if I
can mention, Mr. Chairman, the committee rules say that we're
supposed to receive copies of the witnesses' testimony 2
working days in advance of the hearing. I'm not pressing this
too much, because I do think that it's important that we have
the hearing. We have been asking to have a hearing on the
Ombudsman for some time. But we do have to do a better job in
terms of notifying the minority about when the hearing is going
to take place and also getting the testimony from the EPA in
the future.
The other thing I wanted to say, Mr. Chairman, is that I
really think that we need to move as a subcommittee on some of
the legislation. There was an article in today's Congress Daily
that talked about effective implementation of the Brownfields
Law which is you know we were very successful in working on a
bipartisan basis to put that together. And the EPA is now
touting it as a great program. I'd like to see the same thing
done with some of the other issues. We've had a hearing on the
safe drinking water, which I thought was a good hearing. And I
think that's another area where maybe we could work together
and try to achieve a bill that would pass and go to the
President just like the Brownfields.
There are a number of these things I think need attention
and even though it's already July, you know we still have a few
months that maybe we can work together and try to move some of
these important bills that even the administration has said
that they'd like to see moved.
With that, I want to say that I am relieved that we are
finally having this hearing on the EPA Ombudsman. The job of
the Ombudsman cannot be lightly as their role is to serve as a
public advocate and receive inquiries and complaints from the
public regarding the administration of RCRA and the Superfund
program. The Ombudsman positions were created to be independent
and objective, basically, an objective voice of reason for the
public. After concerns arose in October of 2000 over the
adequacy of the independence of the Office of Ombudsman from
the Office of Solid Waste and Emergency Response, a GAO
investigation was completed. And the investigation discovered
that among other things the national and regional offices
suffer from not only a structural lack of independence, but
limited control over their budgetary resources as well.
In response to these findings, the EPA issued a memorandum
relocating the Office of Ombudsman to the Office of the
Inspector General. After legal challenges and public
opposition, the EPA Inspector General's Office received the
functions of the Ombudsman in April of this year.
Mr. Chairman, I have to say that I don't think that anyone
would quarrel with the difficulties in establishing true
independence for the Ombudsman function. But what myself and
many of my colleagues have a problem with is that I believe
that effectively the EPA under Republican Administration has
essentially dissolved the Ombudsman function when the
Department ordered it transferred to the Inspector General
because it's eliminating the position description, removing the
ability to find problems in select cases, and restricting
communication from the outside world of the EPA.
I don't understand, Mr. Chairman, what the EPA feels it has
to hide. You know, I think that I have to come to the
assumption that they're trying to hide something if they feel
that they have to essentially dissolve or destroy the
Ombudsman's function. Somehow they see it as a threat to the
Agency or something. That's the only conclusion I can come to.
And I think that it's very sad that the Agency lost Bob Martin
in the process. I see that he is in the audience with us today.
I think he did a good job and you know was very independent,
was sort of the epitome of what independence was supposed to be
about.
But beyond Bob, the public has lost the position in
general. They've lost their voice when it comes to cleaning up
Superfund sites, which is one of the biggest concerns that I
have right now, among other things.
Bob Martin actually states in his testimony, which I guess
he has written testimony, that without a true EPA National
Ombudsman function, communities are at risk from an unchecked
bureaucracy. And I really believe that. I believe that unless
this is established again and changed in a way that it truly
becomes an independent voice, we are going to lose in our
communities the ability to effectively check on the EPA. That's
what Ombudsman was supposed to be. I don't think it functions
in that capacity anymore and hopefully this hearing will shed
some light on that. So I'm glad we're having the hearing. Thank
you.
Mr. Gillmor. I thank the gentleman. Regarding the
testimony, we're sorry you didn't get it until 6:30 last night,
but I checked with my staff and that's when we got it. So you
received it the same time the majority did.
Now I'll recognize the chairman of the Health Subcommittee,
Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman, and let me begin by
expressing my thanks to you and Chairman Tauzin for scheduling
today's hearing. They both know how strongly I feel about the
need for an independent Ombudsman function at the Environmental
Protection Agency, and I'm grateful they worked patiently with
me to arrive at this point, particularly after several months
of trying. We're not here today, I trust and hope, to finger
point or to engage in partisan bickering about environmental
policy. We're here today because we have a responsibility to
our constituents. We have a responsibility to ensure that those
families living in communities burdened with hazardous waste
sites are able to participate in decisions affecting their
health and safety. An Ombudsman guarantees public access to
this process.
An Ombudsman can only be as effective as he or she is
independent. Nowhere is this as evident as it is in the EPA.
Mr. Pallone used the words ``the Office was created to be
independent and objective.'' And I certainly agree. I was one
of the few members of this committee that was here back in the
mid 1980's when we worked into the late hours of the night
working on the Superfund and the creation of the Ombudsman
Office.
In its report, ``EPA's National Regional Ombudsmen Do Not
Have Sufficient Independence,'' the General Accounting Office
found the EPA Ombudsman did not have the necessary level of
independence. As a result of the GAO's subsequent
recommendations, EPA decided to transfer the Ombudsman function
to the Office of Inspector General.
Does the EPA's decision to relocate the Ombudsman to the
OIG provide true independence? That's really the question of
this hearing. I wish that we could have explored this issue
before the transfer was implemented. We tried. God knows we
tried. But I do look forward to the opportunity to hear from
the EPA and ask questions about this transfer.
I will say obviously that Ms. Whitman made an effort, I
think, to abide by what she thought were the concerns that the
GAO raised. Certainly, no effort had been made prior to that
point in time.
This past Saturday I sponsored a town meeting with
Inspector General Nikki Tinsley and acting Ombudsman Mary
``Peggy'' Boyer in my home community of Tarpon Springs,
Florida. While I appreciated their willingness to come down and
to listen to the concerns of area residents, my constituents
raised some valid concerns about the role of the Ombudsman in
the OIG, and I anticipate all of us exploring those issues
today.
I'm particularly pleased that my constituent, Heather
Malinowski, came to Washington on such short notice. If you
think you got short notice, she even got shorter notice, and
had to incur the expenses of the airlines when you have to
catch a flight at the last minute. But anyhow, she did come to
Washington on such short notice to testify this morning. Mrs.
Malinowski has years of experience in dealing with the EPA. I
would say that she's reflective, I think, of so many people out
there, so many Americans who really care about the process,
want to be involved in the process. I know I spent much of my
life listening to the term ``you can't fight city hall.''
Well, I'm here to tell you that she's emblematic of people
who can fight city hall and do a pretty darn good job of it.
And not necessary to beat City Hall, because that's not what
it's all about. But fighting them to make sure that your
concerns and the community's concerns are heard and paid
attention to. And she's done that. So she's going to do a
better job than I can in explaining how important an
independent Ombudsman is for the Tarpon Springs community and
obviously for the other similar communities around the country.
I believe the testimony of our witnesses will highlight how
critical it is to have an independent Ombudsman at EPA. That
function is a valuable tool for citizens across the United
States. It was a creation of Congress and ought to stay within
the intent of this legislative body in the true function of
independence that's vital for the effective operation of the
office.
Thank you very much, Mr. Chairman.
Mr. Gillmor. The Chair recognizes the gentleman from
Michigan for an opening statement.
Mr. Stupak. Thank you, Mr. Chairman, and thank you for
holding this hearing today on the recent developments in the
EPA Office of Ombudsman. I'm afraid that the discourse about
the Office of Ombudsman at EPA is just one more indication that
this administration places little value on protecting the
public from hazardous materials and Superfund pollution. There
have been several disturbing news reports recently about the
lack of the administration support for Superfund cleanups.
An EPA Inspector General's report issued recently says that
33 Superfund sites in 18 States are no longer getting funds
from a special polluter pays cleanup fund that is running out
of money.
Dozens of other States are getting some cleanup and long
term remediation money, but less than regional officials say is
needed. The Bush Administration wants to shift funding for the
33 cleanup projects to the Government's general fund from the
Superfund trust fund, meaning tax payers will now pay for
cleanups. But payments out of the general fund would require
Congressional approval, which we all know would most certainly
slow down the process or halt work entirely at some sites.
The 1980 Superfund Law states very clearly, that polluters
should pay to clean up their own environmental messes. This
special fund came from taxes on chemical and petroleum
companies. But those taxes expired in 1995 and the majority
party has not allowed a renewal of those taxes.
The fund will now dwindle to a projected $28 million at the
end of next year. At one time, this fund contained $3.6 billion
for cleanup work. Congress has not renewed the taxes which fund
this account and President Bush now opposes the renewal of the
taxes. My home State of Michigan is one of the States affected
by this decision. President Bush has indicated time and time
again that the environment is not his priority.
Time and time again I'm surprised and astounded at the
lengths he will go to be a supporter of big business to cut the
life out of environmental programs. It's no wonder that things
over at the EPA are in disarray. And it's no wonder we have
them in front of us on Superfund issues. I hope to learn more
from the hearing today whether or not the important Ombudsman
function at EPA can stay alive and well under the Agency's
transfer plan.
I'm concerned that this Ombudsman dispute is just one more
indication that the EPA under the management of this
administration continues to ignore its mission of protecting
the public from the environmental hazards created by industrial
pollution.
Mr. Chairman, I yield back the balance my time and I look
forward to an opportunity to question the witnesses today.
Mr. Gillmor. The gentleman from Georgia, Mr. Norwood.
Mr. Norwood. Thank you very much, Mr. Chairman, and I'm
appreciative of you having this hearing. It appears to me that
in a nonpartisan way all of us certainly agree that the
Ombudsman should be independent. That's what this hearing is
about. That's what we're trying to get done. We're trying to
make certain that individual and that group of individuals is
independent of EPA which is what Congress wants. I would plead
with the members of this committee, if they could simply leave
their politics out of this just for a little while. Perhaps we
can actually get something done with this. It does not help one
bit anybody in this room for the attack dogs to use this forum
to be political. We need to be here for the very reason Mr.
Bilirakis pointed out.
And with that, Mr. Chairman, I have a very long statement,
I would just as soon submit it for the record and let's move
forward to the questioning of the witnesses and let's move
forward to the purpose of this hearing which is to determine if
or if not the Ombudsman is independent and if not, why not.
Thank you.
Mr. Gillmor. Thank you. The gentleman's statement, in its
entirety, will be made a part of the record. The gentleman from
Illinois, Mr. Shimkus.
Excuse me. The distinguished ranking member of the Health
Subcommittee. He snuck in when I was looking the other way. I'm
pleased to recognize Mr. Brown from Ohio.
Mr. Brown. As my remarks will be brief, as we know the
recent decision from Administrator Whitman to place to Office
of the Ombudsman within the Office of Inspector General has
sparked enormous controversy and has caused many to question,
particularly my friend from Florida has done, Mr. Bilirakis,
whether the Ombudsman can continue to fulfill his or her
mission in EPA. Last month the Senate Environment Public Works
Committee held a hearing. The General Accounting Office offered
testimony based on investigation of position they have
previously done for Chairman Bilirakis. This is what they said
about the Administrator Whitman's decision, ``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 it has not
achieved that objective.'' I'm inclined to strongly agree with
this statement.
I'm concerned, like many others, that the Administrator has
sought to marginalize the Ombudsman because the Office has done
too good a job at pointing out the Agency's shortcomings and
not to make it more independent as she has claimed. It seems to
run pretty rampant through this administration, the problems of
secrecy, the problems of loyalty to the point of never speaking
out. And I think this is an another example of how this
administration has gone in a wrong direction that way.
I welcome all our witnesses today and I look forward to
their testimony on this sensitive issue. I hope that we can
remedy this problem. Thank you, Mr. Chairman.
Mr. Gillmor. Thank you, Mr. Brown. The gentleman from
Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I agree with a lot of
the statements. I think that my colleagues on the other side,
actually I've been pleased with a lot of stuff the EPA has
done, but I always wondered when I was in the legislative
branch when the executive branch would fall into the hands of
our own party, would I be as vigilant in some of my statements
toward the EPA and some of the other Federal Agencies that I
had criticized. And it's good to see, and we'll get a chance to
talk to and visit with Bob Martin, who I worked with in the
previous administration. I found him to be a man of honor and
integrity and I look forward to talking with him today.
My position is very simple. The Ombudsman should be--we are
the Ombudsman for our citizens when we don't have a credible
Ombudsman in an agency. And so if we have a credible Ombudsman
in an agency, then that takes some of the burden off of us to
try to fight all the myriad of battles we have to fight for our
citizens through all the various agencies.
And really I'm pretty appalled that the treatment of Mr.
Martin while on official business than on sick leave and coming
back to have the locks changed, the files taken out, when I've
always known him to be a conscientious individual. So that's
what my focus will be.
Let's restore an office in the EPA of an Ombudsman that has
some real teeth, that our citizens can go to. That we can have
help in trying to rectify issues and problems. No one is
perfect and no agency is perfect and we all need each others
help.
So Mr. Chairman, to both Chairmen, I look forward to this
hearing and I think we can move in the right direction if we
work together to try to identify the problems and move the
debate into a positive direction of having a very effective
Ombudsman. And I yield back my time.
Mr. Gillmor. The gentleman yields back. If there are no
other members wishing to make opening statements, the Chair
will now call up the first panel.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. Ed Towns, a Representative in Congress from
the State of New York
Thank you, Chairman Bilirakis and Chairman Gilmor for holding this
joint subcommittee hearing to examine the Environmental Protection
Agency's decision to move the Office of the Ombudsman from the Office
of Solid Waste and Emergency Response to the Office of Inspector
General. I must begin by stating my ``New York bias'' as detailed in a
letter to the EPA Administrator less than a month ago. In the letter, I
joined several of my colleagues in urging that Mr. Martin, the now
former Ombudsman in the Office of Solid Waste and Emergency Response,
be allowed to return to EPA to complete the cases that remained open
when he left EPA in late April. I believe that it is critical that Mr.
Martin return to complete these cases because they involve potentially
debilitating health problems. There is no time to waste.
The situation surrounding the World Trade Center site in New York
is a prime example of why it is important that Mr. Martin return to
complete his cases. Prior to his separation from EPA, Mr. Martin
amassed an outstanding record of service on behalf of his constituents,
the American people. As the Ombudsman in OSWER, Mr. Martin was able to
bring attention and pressure on EPA to reverse their decision not to
clean residences covered in soot and dust by the events of 9/11. As you
may recall, shortly after the tragic events of 9/11, the EPA
Administrator declared the air and water in lower Manhattan safe.
Through the efforts of Ombudsman Martin, Senator Clinton, Congressman
Nadler and others, the EPA reversed their decision and is now making
limited clean-up services available to residents upon request. This
would not have happened if not for the work of Ombudsman Martin. It
would not have happened if EPA was left to their own devices. In fact,
EPA's response still has not gone far enough. To date, EPA is only
cleaning visible dust and they are testing for asbestos. Were the
clouds of debris that spread out over lower Manhattan and downtown
Brooklyn made solely of asbestos? What was in those clouds and why
isn't EPA specifically testing for those compounds? Moreover, the focus
of their efforts has been exclusive to the area immediately surrounding
``Ground Zero''. The residue from the Twin Towers showered down on
Brooklyn. I will be sending a letter to Administrator Whitman in the
next fourteen days requesting that testing be done on buildings and
residences in downtown Brooklyn. While a great deal of time has passed
since this tragedy occurred, I believe that there are clean-up issues
outstanding that could still pose long-term health risks. We must take
whatever steps necessary to prevent this from happening.
What will my options be if the Administrator denies my request?
Could I contact the Office of Inspector General and request
intervention by the Ombudsman? Under the restructured EPA, the
Ombudsman cannot decide whether or not this is a case worth taking. If
the Ombudsman is supposed to act as a gatekeeper when other avenues
into EPA have failed, shouldn't this position have true independence?
This was the conclusion of the GAO's study of this question. If the GAO
agrees that there is an independence problem, why would the
Administrator place the Ombudsman in an Office that is clearly not
independent? There seems to be a belief that the Ombudsman will be
independent based on the independence of the Office of Inspector
General. While this almost seems logical, one need only look at the
fact that the Office of Inspector General has an audit responsiblity
for the Ombudsman's Office. How can there be true independence? If the
Ombudsman cannot make independent decisions on staffing or anything
else for that matter how can the Ombudsman be independent?
I would ask the EPA to answer these questions as well as others
that I will submit for the record and I would also ask that the
Administrator reconsider the relocation of the Ombudsman Office to the
Inspector General's Office, a decision which I believe has the exact
opposite effect of what was intended; that is, it moves the EPA further
away from its constituency, the American people.
Mr. Gillmor. Our first panel consists of Mr. Robert
Fabricant, the General Counsel of the U.S. Environmental
Protection Agency; John Stephenson, the General of the General
Accounting Office's Division of Natural Resources and the
Environment; and Mr. Mark Bialek, who is a counsel in the
Office of Inspector General in the U.S. Environmental
Protection Agency.
Gentleman, we have your written testimony and we'll make it
part of the record. If each of you would like to take 5 minutes
to summarize your remarks it would be greatly appreciated. Our
committee is eager to begin asking you questions and we'll do
so once each of you has presented your testimony.
Mr. Fabricant.
STATEMENTS OF ROBERT E. FABRICANT, GENERAL COUNSEL, U.S.
ENVIRONMENTAL PROTECTION AGENCY; JOHN B. STEPHENSON, DIRECTOR
OF ENVIRONMENTAL ISSUES, U.S. GENERAL ACCOUNTING OFFICE; AND
MARK BIALEK, OFFICE OF COUNSEL, U.S. ENVIRONMENTAL PROTECTION
AGENCY
Mr. Fabricant. Thank you, Mr. Chairman. Good morning, Mr.
Chairman and members of the subcommittee. My name is Robert
Fabricant and I am the General Counsel for the U.S.
Environmental Protection Agency. I appear today to discuss the
move of EPA's Office of Solid Waste and Emergency Response
Ombudsman function from OSWER to the Office of the Inspector
General.
I would like to open my remarks by commenting briefly on
the history of the OSWER Ombudsman function. In 1984, the
Congress amended the Resource Conversation and Recovery Act 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 sunset 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 various Superfund administrative reforms
undertaken by EPA in 1995, Regional Ombudsman positions were
established in the EPA Regional Offices. The Regional Ombudsman
addressed Superfund issues and, depending on the region, other
issues including RCRA, 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 GAO had initiated its own inquiry in
the 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 the GAO 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 Ombudsman 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 that 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.
Therefore, 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 the GAO report and recommendations. GAO's main
concern was that the independence of the Ombudsman function was
jeopardized by the location of the function within OSWER. This
echoed additional comments echoed this that we received from
Congress and others. Although recommending that the Ombudsman
function be located outside of OSWER, the GAO report did not
recommend any specific location for that 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 the
Inspector General, 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 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 in OIG.
In January 2002, then Ombudsman, Robert Martin, and an
organization known as the Government Accountability Project,
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 became effective on April 13, 2002. It's my
understanding that Mr. Martin resigned from EPA effective April
29, 2002. And although the Federal District lawsuit challenging
the decision to move the Ombudsman function was dismissed,
administrative claims relating to the Ombudsman function are
pending before the U.S. Department of Labor and the United
States Office of Special Counsel.
EPA is currently 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. Mr. Bialek will take
that portion of the testimony. Thank you for the opportunity to
appear before you today and I'll be happy to respond to any
questions you have.
[The prepared statement of Robert E. Fabricant follows:]
Prepared Statement of Robert E. Fabricant, General Counsel, U.S.
Environmental Protection Agency
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.
Mr. Gillmor. Thank you very much, Mr. Fabricant.
Mr. Stephenson of the GAO.
STATEMENT OF JOHN B. STEPHENSON
Mr. Stephenson. Thank you, Mr. Chairman, and members of the
subcommittees. I'll briefly summarize my statement by
describing the standards for Ombudsman that have been published
by professional organizations and then comparing the EPA's
reorganized Ombudsman function to those standards.
Let me stress that these observations are preliminary
because the EPA has not yet developed operating policies and
procedures or an official job description for the position. My
observations today are based on limited work we have done in
response to a request from Representative Diana DeGette.
Based on our work to date, we believe placement of the
Ombudsman function within the OIG Office raises several issues
that should be considered. While there are no Federal standards
or requirements specific to the operation of the Ombudsman
offices, several professional organizations do provide
standards of practice, relevant to Ombudsmen who deal with
inquiries from the public as is the case here.
These standards incorporate the core principals of
independence, impartiality, and confidentiality. According to
guidelines published by the American Bar Association, key
indicators of independence include control over budget and use
of resources and the power to appoint, supervise and remove
staff. Standards of practice published by another professional
group, the Ombudsman Association, advocate that ombudsmen
report to the highest authority in the organization. These
standards also stress the importance of impartiality and
confidentiality.
We found that the Ombudsman at Federal agencies we reviewed
for our report last year did reflect these standards. For
example, at the Federal Deposit Insurance Corporation and the
Food and Drug Administration, the Ombudsmen had their own
budget and reported directly to the highest level of the
agency. We recommended in our report that EPA take actions
intended to increase consistency with the standards including
locating the Ombudsman outside the Office of Solid Waste, the
organizational unit that is subject to the Ombudsman's
investigations. Some months later EPA announced the
reorganization relocating the National Ombudsman to the IG's
Office. While this reorganization raises several issues, the
most fundamental is intent.
If the Congress and EPA intend to have an Ombudsman
function that is consistent with the way the position is
typically defined, then placing the function within the IG's
Office will not achieve that objective. This is because the
role of the Ombudsman typically includes responsibilities such
as helping to informally resolve program related issues and
mediating disagreements between the agency and the public.
Assigning these responsibilities to a position within the IG's
Office would conflict with the Inspector General's Act, which
prohibits the transfer of such program operating
responsibilities to an Inspector General.
On the other hand, to omit these responsibilities as EPA
has apparently done, 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, it may not result in the degree of structural
and functional independence that is consistent with the
professional standards. For example, according to EPA authority
for budget and staffing for its Ombudsman will rest with a
newly created Assistant Inspector General and the IG, not the
Ombudsman.
Also according to EPA, the Inspector General, not the
Ombudsman, will have the authority to select and prioritize his
or her own case load independent of other needs. In addition,
the EPA has not yet addressed the concerns we raised in our
report about the independence of the ten Regional Ombudsman,
whose positions are collateral duties still within the Office
of Solid Waste.
Finally, the OIG could no longer independently audit or
investigate the Ombudsman's activities as he or she can at
other Federal agencies were the functions are separate.
Conversely, there may be a conflict if the Ombudsman
receives a case that has already been reviewed by the Inspector
General.
Mr. Chairman, that concludes my oral statement. I will be
happy to answer any questions you or any member of the
subcommittee may have.
[The prepared statement of John B. Stephenson follows:]
Prepared Statement of John B. Stephenson, Director, Natural Resources
and Environment. U.S. Genmeral Accounting Office
Mr. Chairman and Members of the Subcommittee: 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.<SUP>1</SUP> 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 <SUP>2</SUP> 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.<SUP>3</SUP>
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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.<SUP>4</SUP> 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.
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\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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My testimony today, which is based on our 2001 report on EPA's
ombudsman <SUP>5</SUP> and on the work now under way,
\5\ U.S. General Accounting Office, Hazardous Waste: EPA's National
and Regional Ombudsmen Do Not Have Sufficient Independence, GAO01813
(Washington, D.C.; July 27, 2001).
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<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,<SUP>6</SUP> 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.<SUP>7</SUP> 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 <SUP>8</SUP> 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, GAO01466 (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.<SUP>9</SUP>
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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.<SUP>10</SUP>
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.<SUP>11</SUP> 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.
---------------------------------------------------------------------------
\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. <SUP>12</SUP>
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.<SUP>13</SUP>
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\13\ U.S. General Accounting Office, HUD Inspector General: Actions
Needed to Strengthen Management and Oversight of Operation Safe Home,
GAO01794 (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 Subcommittee 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 Subcommittee may have
at this time.
Mr. Gillmor. Thank you, Mr. Stephenson.
Mr. Bialek.
STATEMENT OF MARK BIALEK
Mr. Bialek. Good morning, Mr. Chairmen, members of the
subcommittee. My name is Mark Bialek and I'm counsel to the
Inspector General at the Environmental Protection Agency. I'm
pleased to be here this morning on behalf of the Office of
Inspector General to speak about recent developments and
implementation and the operation of the Ombudsman function
within OIG.
As has been mentioned the original intent and authority of
the Ombudsman mission was to provide information and to
investigate complaints and grievances from the public relating
to EPA's administration of the Superfund and other hazardous
waste programs.
Given that the former Ombudsman's role was so similar to
the work we were created to perform in the Inspector General's
Office, and because we report both to Congress and to the
Administrator, the Inspector General believed our Office was
well suited to assume the investigative functions of the
Ombudsman's office. As the subcommittees I'm sure are aware,
the Inspector General's Act gives us very unique and
independent authorities and responsibilities, including the
authority to issue subpoenas, obtain access to any records of
the Agency, to obtain assistant from other Federal, State, and
local governmental organizations. We have independent hiring
and budget and contracting authority and independent reporting
responsibilities to Congress.
Now some, including GAO, have debated as you've heard just
a moment ago, whether our assumptions of the Ombudsman
responsibilities is consistent with the American Bar
Association standards or other organizations' standards for a
traditional Ombudsman function. It was not our intention to
change the function of the pre-existing Ombudsman at OSWER so
that it would come into conformance with the ABA standards or
other organization standards for a traditional Ombudsman. We do
not intend to become advocates for individuals or groups or to
be disseminating basic information about the program or the
operation.
What we do intend to do is to assess and review all
complaints in an impartial and objective manner, to assess the
quality of EPA's program management and decisionmaking and to
issue reports to Congress and to EPA with findings and
recommendations that are designed to solve problems.
Since the early 1980's, we've had maintained a hot-line
function where members of the public can call in or write in to
allege wrong doing or to make complaints about any problems
they have had with EPA. They can either do that by calling the
toll free number. They can write in to us and recently we have
set up an internet capability for people to communicate with
us.
We have, as part of this transfer, decided to expand the
services that we will be offering and not limit it only to
Superfund or hazardous waste issues but extend the Ombudsman
function to cover any and all programs and operations of EPA.
The Ombudsman will have access to the various disciplines that
are currently available with the Office of Inspector General
including auditors, investigators, program evaluators,
chemists, attorneys, and others.
I'd like to give you a very brief update on what we've
accomplished in the relatively short time that we've had this
function. At the very end of April, the Inspector General
appointed acting Ombudsman Mary Peggy Boyer and since then Mary
and her staff have been assiduously reviewing 130 boxes worth
of records which we inherited from the Ombudsman's Office at
OSWER. We have eight staff members assigned full time reviewing
those records, which I might add is at least twice as many
staff that we were assigned previously in OSWER.
According to GAO's report issued a year ago, there were 20
open cases when they issued their report last September. We
have finished going through these records and have determined
that of those 20, 10 appear to be closed or resolved. The
remaining 10 we have prioritized in terms of what deserves our
immediate attention. Certainly the Marjol Battery site, the
Shattuck Chemical site, Bunker Hill, Coeur D'Alene are on that
list.
We have also listed seven additional cases to that list
based on records we have reviewed or media accounts since the
issuance of the GAO report.
We have also begun outreach efforts. We've offered to brief
any Member of Congress and we've done so on a number of
occasions and committee staff. We have made contact with
citizen groups in several of the communities where we have open
cases. We have participated in public hearing as Chairman
Bilirakis mentioned. He hosted us in Tarpon Springs, Florida
this past weekend. We will be participating in meetings in
Idaho and Washington later this week.
At the same time we're working on implementing policies and
procedures to address the handling of cases, including case
selection criteria. We have had extensive discussions with the
Regional Ombudsman's Offices and set up a coordinated approach
for addressing issues of mutual concern. We've met a number of
times with the Ombudsman for ATSDR as well.
We will publicly report on a annual basis the work we've
accomplished, status report on all open cases and
recommendations or findings that we have reported to the
Agency.
The Inspector General and I are very proud of the track
record of EPA OIG. We want to assure the public, EPA
stakeholders, and Congress that we will conduct Ombudsman work
with total independence and professionalism.
We welcome the committee's assistance in terms of
information or suggestions to us as we carry on these new
responsibilities. That said, I hope you will reserve judgment
until such time as we've had an opportunity to produce some
reports.
Thank you for the opportunity of being here today and happy
to respond to any questions you have.
[The prepared statement of Mark Bialak follows:]
Prepared Statement of Mark Bialek, Counsel to the Inspector General,
U.S. Environmental Protection Agency
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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Mr. Gillmor. Thank you very much. We'll now move to a round
of questions. I will point out that we've been joined by Mr.
Nathan Deal, a member of the subcommittee and by Diana DeGette
of Colorado who is not a member of either subcommittee but is a
member of the full committee and will be sitting in for the
purpose of questioning.
Mr. Fabricant, in your opinion, does the Agency possess the
legal authority to move the Ombudsman from OSWER to OIG?
Mr. Fabricant. Yes, Mr. Chairman. Although the statutory
language sunset in 1988, as a matter of policy we've maintained
a function of the Ombudsman within OSWER, and we think there is
sufficient authority to have the transfer to OIG and to
undertake the functions of the Ombudsman within that Office.
Mr. Gillmor. In your opinion, I take it then, the Agency
has not violated any laws in making decisions considering the
Ombudsman's function or handling?
Mr. Fabricant. Mr. Chairman, no. The Agency--the actions of
the Agency have been perfectly lawful.
Mr. Gillmor. Going back and looking at a little bit of the
history of the Ombudsman activities in the past, the GAO report
of last July said there were 34 cases listed that the Ombudsman
initiated between October 1992 and December 2000. And the GAO
reported the Ombudsman issued only 4 reports and 3 interim
reports and that of those 34 cases, 14 of them were unresolved.
And some of those unresolved cases go back to 1997.
It's my understanding that since 1997, the Ombudsman
resolved only two cases with 19 new cases open since which have
been unresolved. Does that fit in with your understanding? And
in your opinion, has that been a good use of government
resources by the Ombudsman at that period of time?
Mr. Fabricant. The facts as you laid them out, Mr.
Chairman, are consistent with my understanding of the track
record of the
OSWER Ombudsman and we believe with the shift to the Office of
the Inspector General we can do better. It's again an
administrative management prerogative to reorganize the Agency
and we're looking to improve on that record in the Office of
the Inspector General.
Mr. Gillmor. And if I might go to Mr. Stephenson. One of
the items that your report touched on last year was the need to
establish accountability within the Ombudsman Office. In your
opinion, do the standards and the culture of the IG's Office
meet the threshold for proper accountability?
Mr. Stephenson. Yes, we're not taking issue with the
accountability of the IG or the professionalism of the IG. They
do, in fact, meet those standards. What we were pointing out is
that the previous Ombudsman didn't meet accountability
standards because he didn't do annual reports or didn't do
systematic reporting and that was a problem in our view.
Mr. Gillmor. And your report also said that the Ombudsman
doesn't have a final say in staffing and resource decisions,
but that the Ombudsman would have input into those things. Is
this more than what the EPA Ombudsman previously enjoyed?
Mr. Stephenson. For the current placement in the IG?
Mr. Gillmor. Right. I'm asking for the comparison between
this placement and the previous----
Mr. Stephenson. The previous Ombudsman really didn't have
any input into staffing and resource decisions. It was an
individual position and there was a loose, non-supervisory
working relationship between the National Ombudsman and the ten
Regional Ombudsmen, so I can't really answer the question if
it's consistent with that. There was no Office of the
Ombudsman. There was an individual person who was the
Ombudsman.
Mr. Gillmor. Okay, thank you. And one question for Mr.
Bialek.
Could you briefly describe the changes the OIG has put in
place in regard to the responsibilities and the activities and
the functions of the OSWER Ombudsman? In other words, what are
the significant ways that you believe the OIG's Office is
running the program differently if any than the way it was run
before?
Mr. Bialek. Well, I think the best way to answer that is to
say that the first thing we're doing is establishing some rigor
to the decisionmaking process on which cases we think warrant
attention, to develop standards and set priorities and to
adequately staff those efforts and to be able to issue reports
in a timely fashion to address and hopefully resolve problems
we uncover using professional auditing standards, whether they
be the GAO Yellowbook standards or other standards of the
professions that we have within OIG, to have a separate budget
allocated, to have separate reporting in terms of our own
internal record keeping system which will identify and track
each and every Ombudsman action in terms of the receipt of a
complaint and a processing of a complaint and timelines
established for resolution.
Mr. Gillmor. My time is expired and we will recognize the
gentleman from New Jersey, Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. Mr. Stephenson, from
what I can see based on your testimony, the heart of the issue
here really is whether or not the decision by the EPA to place
the Ombudsman in the Inspector General's Office meets the test
of what you call or actual and apparent independence. That's
what this is all about.
My concern is, you know, in your testimony you mention that
indicia, if you will, of that independence will be authority
over your own budget, the ability to hire or fire staff, the
ability to make decisions, you know, to decide what kind of
cases would be selected.
And I listen to the chairman's remarks, and I know he was
asking about the IG and asking you whether the IG met the test
of independence, but I guess I have two questions. One is the
issue of whether the Ombudsman meets the test of independence
is really separate from whether the IG does. If you could
answer that.
And then the second thing is whether or not the test of
actual and apparent independence is met by putting the
Inspector General under the IG. If you could answer those two.
Mr. Stephenson. Well, the standard says control over
resources and staffing and prioritizing his or her own
decisions. We see the function of the IG and the Ombudsman as
very different. The Ombudsman is typically defined as an
informal problem solving organization between the citizens and
the Federal agencies. Placing it in the IG puts it down several
layers under an Assistant Inspector General who reports to the
Inspector General who ultimately reports to the Administrator.
We don't see that as unincumbered, and so we don't think it
meets the test of independence by placing it in that type of an
organization.
If you want an enhanced IG capability to look at more
Superfund sites and address citizen concerns similar to what
the hot-line function already does, that's fine. But if you
want a true Ombudsman, this isn't it.
Mr. Pallone. My understanding that other agencies the GAO
looked at, such as the Food and Drug Administration and the
Internal Revenue Service, that in those cases the Ombudsmen
have their own budget and reported directly to the head of the
Agency. You looked at those two and that's what you found?
Mr. Stephenson. That's correct.
Mr. Pallone. So I guess, you know, a question to Mr.
Fabricant, given what the GAO says which is there is no actual
and apparent independence here, and given the fact that there
are other agencies that GAO looked at, such as FDA and IRS,
that have their own budget and reported directly to the
Administrator and clearly met the test, why is it that
Administrator Whitman didn't follow the recommendation to the
GAO and these other examples of these other agencies and having
the Ombudsman report directly to her Office?
Mr. Fabricant. Congressman, when the Administrator began
the review process, we had the benefit of the GAO report. And
looking at the terms of the GAO report and the expressed
standard that was being applied, the test for independence
really referred back to whether the supervisor would be anyone
subject to the Ombudsman's jurisdiction. So in that important
respect in the Office of Inspector General, the Ombudsman
function would not be using its good offices to look at the
Inspector General.
And we looked at that and we thought that was an important
distinction, as opposed to the Administrator's Office where if
there was a direct report to the Administrator, like in the
other agencies, and again, we don't think this Agency should be
bound by what's typical at other agencies, especially after the
thoughtful consideration of the various options and examples we
had before us.
Then in particular, if it was placement in the
Administrator's Office, then in fact there would be a report by
the Ombudsman to a person who was subject to that jurisdiction.
You just don't find that in the Office of the Inspector
General. There's much more independence. And that was a
decisionmaking process that we undertook.
Mr. Pallone. I understand what you're saying, but I think
what Mr. Stephenson is saying, and he couldn't be more clear,
is that by putting it under the IG, even though the IG is
independent, you're basically downgrading the Office and making
it sort of unimportant and almost like an appendage if you will
to the IG. And that the whole idea is that this Ombudsman has
to be important and report directly to the Administrator, so
that they don't have these intervening layers of bureaucracy
that would get in the way of their trying to influence the
Administrator or reporting to them.
I mean, I understand what you're saying but he doesn't
agree and I assume that part of the purpose of the hearing
today is to maybe have you change your mind. After you're
listening to what you're saying, do you think--are you making
an effort into looking into the possibility of changing it and
making it more like the FDA or the IRS?
Mr. Fabricant. Again, Congressman, I will be reporting back
the debate and the discussion of this hearing to the
Administrator, but as of today, we're continuing to move
forward with the transition to the Office of the Inspector
General. And again, we agree with you about the importance of
the function and we think placement in OIG is complemented by
many of the functions that are currently in the Office of the
Inspector General, and it can be a more effective and efficient
operation as well as more----
Mr. Pallone. What about the fact that he said there's some
inability to hire or fire your own staff, that there's no
authority over your own budget. You're not worried about those
things?
Mr. Fabricant. Again, I think turning back to the idea of
independence, the notion of Ombudsman is not having no
supervision whatsoever. It's supervision by a person who is
subject to the inquiries that could create conflicts.
Mr. Pallone. Mr. Stephenson said that the new person can't
hire or fire their own staff. Doesn't have authority over their
own budget. Not clear if she has the ability to select cases. I
mean, it seems like if you eliminate all those things that this
person, you might as well have the IG and not bother. What's
the point of having it at all? What is it going to do
differently from the IG?
Mr. Fabricant. Congressman, again, I think I'd refer some
of the actual nuts and bolts logistics of the process to Mr.
Bialek at OIG so he can elaborate further on how it will
actually function.
Again, I think it's a very recent transition that's
occurred here and I think it's again----
Mr. Pallone. I'm just trying to have you answer the
questions. I mean, I'll go one step further. We haven't heard
Mr. Martin's testimony yet, but in his testimony he talks about
how there's also restrictions in terms of communication with
the outside world. That's even more disturbing to me. I don't
know if you want to comment on that at all.
Mr. Fabricant. Again, I will refer those questions over to
Mark Bialek.
Mr. Pallone. All right. You're not helping me, so let me
ask Mr. Bialek.
What do you have to say about the fact that this person is
essentially under the IG? How are they going to assert any
independence if they can't hire or fire their own staff, can't
exclusively select cases, don't have authority over the budget,
or even can't communicate to some extent? Now that was stated
not by the GAO but it's in Mr. Martin's testimony that we're
going to get later.
Mr. Bialek. The way we have structured this operation does
not allow for the Ombudsman to make his or her own decisions in
a vacuum about hiring, about budgeting, about case selection.
This individual does have a supervisor, as did the previous
OSWER Ombudsman have a supervisor. That structure isn't any
different.
What's different is how it's now housed within the
organization that has an independent head, the Inspector
General. The Ombudsman will be making recommendations to the
Inspector General through an Assistant Inspector General for
budgeting, for personnel. I will add that originally there was
an estimate of her needing five full time staff to start the
review process. She was given five. She came back and said she
needed more. She now has eight and she is formulating a
proposal to give to the Inspector General for additional
funding and additional full time staff to be able to carry out
this responsibility.
Mr. Pallone. I know my time is expired, but I just have to
say, Mr. Chairman, it sounds to me like Mr. Fabricant and Mr.
Bialek just don't agree with what Mr. Stephenson is saying,
that this should be independent. I think that's ultimately what
you're saying.
I yield back.
Mr. Gillmor. The gentleman's time is expired. The gentleman
from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Mr. Fabricant, in my opening statement I talked about the
dismissal of Mr. Martin. And is that account accurate?
Mr. Fabricant. No, Mr. Congressman. The letter was received
by the Agency on April 22 of this year regarding Mr. Martin's
voluntary resignation.
Mr. Shimkus. Was that prior to the changing of the locks
and the removal of the files?
Mr. Fabricant. Again, I dispute the characterization of
what occurred regarding the transition.
Mr. Shimkus. Did someone from the Agency talk to Mr. Martin
prior to his resignation about the elimination of the Office or
the problems?
Mr. Fabricant. No, I think the resignation occurred after
the U.S. District Court dismissed the claims that Mr. Martin
had raised regarding trying to enjoin the transfer.
Mr. Shimkus. We'll get a chance to hear from Mr. Martin and
I really want to follow up on this whole timeline of events. I
don't know, have you ever fired anyone, Mr. Fabricant,
personally?
Mr. Fabricant. No.
Mr. Shimkus. Mr. Stephenson, have you?
Mr. Stephenson. No, not directly.
Mr. Shimkus. Mr. Bialek, have you?
Mr. Bialek. No, I've put people on Performance Improvement
Plans and that's led to their resignation.
Mr. Shimkus. I would suggest that it's not a fun thing to
do which I have done and I've always thought that out of
professional courtesy you would at least meet with someone
before you would lock them out of the Office or grab their
files. And I'd like to know who was the individual who may have
made this decision. And I'm going to continue this search, so
maybe having someone from the Office come in and visit with me
in my Office so I can get the timeline. If it occurs as it's
being told to me, I'm not very pleased. It's truly
unprofessional and we've got to be able to do a better job.
Mr. Bialek. Congressman, I can respond to that briefly by
saying that our Office, in particular, the Acting Assistant
Inspector General to whom the Ombudsman was expected to report
attempted on many occasions to contact Mr. Martin by phone and
by e-mail and was unsuccessful in doing so.
We provided a listing of each of those attempts to the
Senate and I'd be happy to make a copy of that listing and
provide it to you.
Mr. Shimkus. I'd like to have that. Thank you.
Mr. Bialek, in essence in your opening statement you've
admitted in your testimony that you do not want this be the
traditionally defined Ombudsman. Is that correct to say? I mean
that's what your opening statement said.
Mr. Bialek. Yes.
Mr. Shimkus. And I would probably make the statement on
behalf of myself that that's exactly what I want. I mean,
that's what I want, is a traditional Ombudsman for my opening
statement's comment. And it's based upon past experience with
issues. One was that a large Superfund sight in Quincy,
Illinois, that I thought it would have been helpful to have
someone--I see the Office of the Inspector General, and I
served in the Army and we had an IG. But I see the IG as
addressing internal complaints and internal problems and legal
issues and things that are going on inside the Office.
I'm looking for someone who will help us relay to the
public that we're concerned about what's going on as far as the
EPA or as grass roots become issues. Because we serve that
role.
And the other benefit of an external Ombudsman person
looking outside, is that they can go back and continue to give
the grass roots perspective, the same things we're hearing from
our citizens is also coming in from another information point
that may help your folks in the EPA Legislative Office
understand what we're trying to say here in our hearing.
So if I were to take your comment as your word, then I
would just say that what I'm looking for is a traditional
Ombudsman.
Mr. Bialek. And I guess my reaction, Congressman, is it
kind of depends on what factors are most critical to you in
defining what's a traditional Ombudsman and what's not.
We are in the business of receiving complaints from all
sources, for criminal wrongdoing of agency officials, for
criminal wrongdoing of contractors and grantees. We review the
media----
Mr. Shimkus. Okay, well let me jump into that because
you're going to be constrained. The role of a Federal Agency in
the executive branch is to enforce the laws. Well, what if laws
are so screwy that the individual citizen is just being raked
over the coals. Well, you're going to come down and say well,
it's the law. EPA is doing what it's supposed to be doing and
we're following the law and I don't care if this small business
has to sell its assets to pay this legal fee or this extortion
by the EPA on a 25 year old Superfund site. You're going to say
it's the law.
Mr. Bialek. We have direct reporting responsibilities to
Congress. We're obligated under our statute to keep Congress
fully and currently informed of problems in our Agency. If we
think there's a law that has a negative impact that's causing
problems in terms of the EPA being able to properly administer
its programs, our responsibility is to come to Congress and lay
all of that out.
Mr. Shimkus. Let me just end by saying we got that law
changed with help of Chairman Gillmor just last year. I'm not
sure EPA was at the forefront of helping us change that law,
but I thank the chairman for helping us ease some of burden on
small business in the Superfund sites. And this is exactly why
I want an independent Ombudsman. I yield back my time.
Mr. Gillmor. Thank you very much, Mr. Shimkus. The
gentleman from Michigan.
Mr. Stupak. Mr. Bialek, how does the OIG position then
square with the legislative purpose in establishing the Office
of Ombudsman? It was, you know, established in the 1984
amendments published in the Federal Register November 24, 1986,
and it's, I'm quoting now, ``it's the function of the Office of
Ombudsman to receive individual complaints, grievance, and
problems submitted by any person with respect to any program or
requirement under the Resource Conservation Recovery Act, RCRA.
The objective of the RCRA Ombudsman is to ensure that the
general public is provided with assistance with complaints or
problems.''
So who's going to act for the public when the issues come
up regarding the EPA's conduct on Superfund and other clean-up
sites?
Mr. Bialek. If we receive complaints, and we decide that
because----
Mr. Stupak. Who's we? OIG?
Mr. Bialek. Inspector General Ombudsman's Office.
Mr. Stupak. The Office of Ombudsman or OIG?
Mr. Bialek. We have an OIG hotline which will receive
complaints.
Mr. Stupak. Right, but doesn't Gary Johnson, Deputy IG,
doesn't he really call the shots over at the Ombudsman Office?
Mr. Bialek. The Ombudsman is the one who is responsible for
the activities of that Office. That Ombudsman reports to Mr.
Johnson.
Mr. Stupak. Sure, so if a complaint comes in and whether or
not the Ombudsman is going to pursue it, who is going to
determine that, the Office or Mr. Johnson?
Mr. Bialek. The Ombudsman will make recommendations to Mr.
Johnson.
Mr. Stupak. So Mr. Johnson will make the decision.
Mr. Bialek. Yes.
Mr. Stupak. The OIG is making these decisions, right?
Mr. Bialek. Yes.
Mr. Stupak. In your statement you said we will not become
advocates for individuals or groups. We will not be
disseminating basic information about the programs and
operations of the EPA.
How do you do that in light of what I just read about what
your stated purpose is? How can you just suddenly change the
focus of the Ombudsman?
Mr. Bialek. There's a two-part answer to that. The first
part has to do with the dissemination of information. That is a
programmatic operating responsibility. We are not permitted to
get into programmatic operating responsibilities. Basic
information dissemination about the programs doesn't fall into
an IG's framework of responsibility for auditing, for
investigating.
Mr. Stupak. But it does or doesn't fall under the law that
was created by Congress.
Mr. Bialek. The OSWER Office retains the responsibility for
responding to requests for information about the OSWER programs
and OSWER operations.
Mr. Stupak. What's the second part?
Mr. Bialek. The second part of your question, if we receive
complaints that warrant an investigation, we open the case and
we assign staff and we get to the bottom of the problem. If we
should decide not to open up a case, that it doesn't warrant an
Ombudsman case, not every complaint that comes in warrants a
case being open. We will make an appropriate referral to the
organization or the office or the agency that's responsible for
that issue and probably ask them to report back to us on how
they've addressed that complaint.
Mr. Stupak. So the part where it says the Ombudsman is to
ensure that the general public is provided assistance with
complaints or problems, you don't see that as your role?
Mr. Bialek. If providing assistance means making a referral
to the appropriate office that can best address the problem or
the complaint, I think we have fulfilled that responsibly.
Mr. Stupak. Not making a referral. It says to ensure the
general public is provided with assistance with complaints or
problems. Same thing that Mr. Shimkus said. We're concerned
that the nature of the Ombudsman is suddenly diluted and it's
now an OIG function further on down the line. That the true
purpose and intent, which was enacted in 1984 and was published
in the Federal Register in 1986 is being disregarded,
especially when we see statements like yours that you will not
become advocates for individual groups, you will not be
disseminating basic information about the programs and
operations of the EPA. That's contrary to what an Ombudsman is
supposed to do, so we don't have problems in getting clean-ups
at Superfunds, and other sites.
So, let me go back to my original question. So who will act
for the public when these issues come up regarding the EPA if
you're just going to be a function of the Office of the
Inspector General?
Mr. Bialek. As I've said, we will be providing assistance
by making sure those complaints are addressed. What I said is
that we may not be the office to address each and every
complaint that we receive, but we will make sure they are
forwarded to the appropriate officials to respond and monitor
the response and make sure that each matter has been resolved
by somebody. That's providing assistance.
Mr. Stupak. When you take a look at it, with the transfer
over to the OIG, the Ombudsman becomes just one more
investigation and there will be no special priority or focus on
Superfund or hazardous waste functions. Correct?
Mr. Bialek. We're starting with the focus on Superfund and
hazardous waste because that's the workload that we've
inherited and those are the priorities that we have taken on.
But we are leaving open the option of the same kinds of
problems being raised with us on any particular program or any
operation of EPA. We're not going to turn people away if they
want to call and relay information or make allegations along
the same lines outside of the Superfund program.
Mr. Stupak. How are you going to relay that information?
Are you going to assist them in their complaints and
investigations as the Ombudsman?
Mr. Bialek. We will capture the complaint. We will provide
the results of any preliminary inquiries we may do in our
efforts to determine whether to open up an Ombudsman case or
not and refer those in writing to the appropriate officials if
we decide not to conduct an Ombudsman investigation ourselves
and make sure that there's appropriate follow-up.
Mr. Bilirakis. [presiding] The gentleman's time has
expired. I'm going to use the prerogative of the Chair and
recognize myself.
Mr. Bialek, I guess everybody has been sort of dancing
around this, but no one has really been that specific.
Regarding the series of recommendations that GAO made on how to
improve the Ombudsman function at EPA, can you describe how
your office has responded to or is responding to each of these
recommendations?
Now there are five of them here and my time will not allow
you to go into each one of them. There are too many specifics.
But possibly you can summarize each briefly and follow it up
with something in writing afterwards.
GAO recommended EPA provide the Ombudsman with a separate
budget and, subject to applicable civil service requirements,
the authority to hire, fire, and supervise his own staff.
Quickly, any comments regarding that?
Mr. Bialek. The Ombudsman will have responsibility for
making recommendations on the hiring of staff and budgeting for
approval by the Assistant Inspector General for the CPO.
Mr. Bilirakis. So the answer is no regarding that GAO
recommendation. Is that right?
Mr. Bialek. The Ombudsman will not have the authority to
make that determination in a vacuum.
Mr. Bilirakis. They will not have a separate budget.
Mr. Bialek. There will be a separate budget allocated, yes.
Mr. Bilirakis. But not have the authority to hire, fire,
supervise their staff. GAO suggested that EPA should require
the Ombudsman to develop written criteria for selecting and
prioritizing cases for investigation and to maintain records on
his investigations and other activities sufficient to serve as
the basis for a reasonable estimate of resource needs.
Mr. Bialek. That's precisely what we're doing.
Mr. Bilirakis. You're doing that?
Mr. Bialek. Yes we are.
Mr. Bilirakis. So you're requiring the Ombudsman to develop
those written criteria, right?
Mr. Bialek. Correct.
Mr. Bilirakis. GAO stated that EPA should require the
Ombudsman to establish a consistent policy for preparing
written reports in his investigations, consult with agency
officials and other affected parties to obtain their comments
before his findings are made public, and include written Agency
comments when reports are published.
Mr. Bialek. Yes, we've asked our Ombudsman to do that.
Mr. Bilirakis. You've asked your Ombudsman to do that.
GAO recommended that EPA require the Ombudsman to file an
annual report summarizing activities and make it available to
the public.
Mr. Bialek. Yes.
Mr. Bilirakis. Finally, GAO called on EPA officials to
assess the national demand for Ombudsmen services and determine
the places they are most needed and the places where the
Ombudsman is located; ensure that these regional Ombudsmen meet
relevant professional standards for independence.
I'm not sure even I understand that.
Mr. Stephenson. Would you like me to explain it, Mr.
Chairman?
Mr. Bilirakis. Please explain it, Mr. Stephenson.
Mr. Stephenson. Right now there's a Regional Ombudsman in
each of the ten regions that's in the OSWER organization that
as a collateral duty, performs some information dissemination
to the public on Superfund programs. And that's really not an
Ombudsman either. It's still in the Office of OSWER, therefore
it's not independent. And since it's a collateral duty it's not
their primary function, so they're really not serving as a
Ombudsman. What we ask is that EPA address that concern with
the Regional Ombudsman, not the National Ombudsman.
Mr. Bilirakis. You know, I suppose Ms. Malinowski will
refer to this in her comments, I don't know. But back in the
early part of June 2000, we had scheduled what we call a Town
Meeting in Tarpon Springs, Florida. The former Administrator
refused to afford enough funds to allow the Ombudsman and his
investigator to come down for that town meeting. Now I know it
happened before your watch, Mr. Bialek. I don't know how long
you've been counsel of the OIG. I suppose your documentation
may go into that. But in any case, it took me and Mr. Oxley,
who at that time chaired this particular subcommittee, and also
Mr. Tauzin in an conversation with the Administrator to allow
those funds to be made available. And I might add that's the
meeting in which the EPA officials from the Region got up and
walked out at a certain time and refused to answer any more
questions. That's all a matter of record.
So, you know, we talked about independence. Now granted
that was OSWER. But I'm not sure if that same sort of thing can
now take place under the IG. As much confidence as I have in
the IG insofar as the functioning of their office as I
understand it over the years, going all the way back to when I
was in the military, I don't know if that function would lend
itself to any good effort insofar as the Ombudsman is
concerned.
I don't know if you have a real quick response to that. My
time is expired and I don't want to take advantage.
Mr. Bialek. All I'll say is we allocated I think
approximately $600,000 to this function and have asked the
Ombudsman to prepare and provide a budget on what she thinks
she needs to fully fund the operation.
Mr. Bilirakis. Let's see, who is next? Ms. DeGette? Is she
on the subcommittee?
Ms. DeGette. No.
Mr. Bilirakis. You're not on the subcommittee. Mr. Barrett.
Mr. Barrett. To make it easier, since I'm on the
subcommittee, I'll yield to Ms. DeGette. If that's okay with
you, Mr. Chairman.
Mr. Bilirakis. I suppose so.
Ms. DeGette. Thank you, Mr. Chairman, for letting me sit in
on this hearing today. And thank you also, Mr. Chairman, for
your leadership on this issue with the Ombudsman. We've been
working a long time together. I got involved in the issues with
the Ombudsman when he came out and worked on a very difficult
case in Denver, my District, with the Shattuck decision. This
was a record of decision that had been closed and which was an
incredibly problematic decision and which with the leadership
of the Ombudsman we were able to get reversed and now we have a
much more appropriate remedy, appropriate for the neighborhood,
appropriate for the health of the community. And for that I
want to publicly thank the Ombudsman for doing this.
I should say I want to thank the former Ombudsman, Bob
Martin. In the process of working on this, I became quite
concerned about the independence of the Ombudsman's Office
because it really takes somebody who's out there as an advocate
for the public to to be talking about these environmental
decisions.
So needless to say, Mr. Chairman, I was quite concerned
when the EPA made the decision to move the Ombudsman's Office
into the Office of the Inspector General. And I think the line
of questioning we've seen from both sides of the aisle would
show that in fact the EPA has achieved its objective which is
to subsume the Ombudsman into another agency to remove the
Office's independence and to put them as part of the
bureaucracy. And I want to ask some questions around that.
The first one, Mr. Fabricant, what was the staffing and the
budget of the Ombudsman before this recent move into the Office
of the Inspector General?
Mr. Fabricant. Just a second. I'll get the information for
you.
Ms. DeGette. All right. While you're looking for that, Mr.
Bialek, let me tell you I have enormous respect and admiration
for the Office of the Inspector General and I think my
colleagues will join me in saying we don't have a problem with
what you folks do. We just don't think that's what an Ombudsman
does. So I want to ask you some questions around that.
I think it's been pretty clear from the questioning that
the concept is now that the Ombudsman will do this research,
but they really will report to a Deputy in the Inspector
General's Office, right? That's the concept.
Mr. Bialek. Yes.
Ms. DeGette. And so ultimate decision for which cases are
pursued, that will be determined by the Inspector General's
Office, right?
Mr. Bialek. There will be criteria established to guide----
Ms. DeGette. But if the Ombudsman said I want to go
investigate what's going on at Shattuck in Denver, ultimately
that's going to be subject to a decision by a Deputy in the
Office of Inspector General. Is that correct?
Mr. Bialek. That's correct.
Ms. DeGette. Now I want to ask you a few questions about
the experience of the OIG in dealing with these cases. Let me
ask you, first of all has the EPA Inspector General's Office
ever held public investigative hearings on hazardous wastes in
Superfund sites? Yes or no.
Mr. Bialek. Public hearings, no.
Ms. DeGette. Okay. Has the EPA Inspector General ever been
involved in informal mediation between complainants, citizens,
the Agency and other stakeholders in disputes arising out of
hazardous waste in Superfund cases?
Mr. Bialek. Depends on how you define informal assistance.
By making referrals to appropriate officials to address
problems and complaints, if you consider that informal
assistance, then we have done that.
Ms. DeGette. The OIG has not actually--you've made
referrals, but you haven't participated in those mediations.
Correct?
Mr. Bialek. Correct. If what you're asking is will we
mediate or will we arbitrate those kinds of disputes, acting in
that capacity, the answer is no.
Ms. DeGette. That's because the Inspector General is not
authorized to do those activities under the Inspector General's
Act, right?
Mr. Bialek. That comes full force into the issue of whether
that's a programmatic operating responsibility, correct.
Ms. DeGette. So what you're saying, I'm sorry, the IG is
not authorized to do those activities currently?
Mr. Bialek. Correct.
Ms. DeGette. Mr. Fabricant, did you get an answer?
Mr. Fabricant. General information from the budget year
2000 to 2001, in 2000 it was $518,000 allocated for the
Ombudsman. The number increased to $786,000 in 2002 and
generally in terms of staffing, there's been the Ombudsman
himself and an additional employee detailed to provide
assistance.
Ms. DeGette. I mean, part of the problem before I thought
was we had this Ombudsman but he was really inadequately
funded. It was basically him and one other person and then
these regional people who as part of their job were supposed to
report to him, right?
Mr. Fabricant. Generally, yes.
Ms. DeGette. And what Mr. Bialek said----
Mr. Bilirakis. Gentlelady, as part of their jobs did you
say the regional people would report to the Ombudsman?
Mr. Fabricant. There was a coordination between----
Mr. Bilirakis. Coordination, okay.
Ms. DeGette. Right, and just one last question, Mr. Bialek.
What you're saying is right now you deploy now five or seven
more employees to help the new Ombudsman?
Mr. Bialek. Yes.
Ms. DeGette. See, Mr. Chairman, I think that's part of the
problem. They just didn't give Bob Martin enough resources. But
why take away the independence of the Office in order to give
the office the resources it needs?
Mr. Bilirakis. Amen to that. It's really in our hands to do
something about that.
Mr. Norwood to inquire.
Mr. Norwood. Thank you very much, Mr. Chairman. Is it
Bialek?
Mr. Bialek. Bialek.
Mr. Norwood. Bialek?
Mr. Bialek. Yes sir.
Mr. Norwood. How long you been with the EPA?
Mr. Bialek. Three years.
Mr. Norwood. Three years. You apparently like the language
in the Solid Waste Disposal Act regarding Ombudsman. Is that
correct?
Mr. Bialek. About investigating complaints and following up
on complaints. Yes, that's what we're here to do.
Mr. Norwood. Your general attitude is that the Ombudsman
doesn't need to be independent?
Mr. Bialek. That depends on how you define independent. The
Inspector General is independent.
Mr. Norwood. Let me put it this way. Let's say that the EPA
comes up with a finding on a Superfund site and a constituent
of mine goes to the Ombudsman and said we think they're wrong.
We want you to investigate this. The Ombudsman does that and
does indeed disagree with EPA. Who wins?
Mr. Bialek. We issue a report with recommendations. If we
believe EPA has done something wrong, we tell them how to
correct that problem. We keep Congress informed as we go.
Mr. Norwood. How long has the Ombudsman been under the
Inspector General?
Mr. Bialek. Since April.
Mr. Norwood. So we don't do that very long. What's been
going on the last 3 years prior to being under the Inspector
General? And if you do produce a report for the EPA, do you
ever know of the time that EPA has said yes, Mr. Ombudsman,
you're correct. We're wrong. Has that ever occurred?
Mr. Bialek. That question is better addressed by those who
were involved in that process before we assumed it.
Mr. Norwood. Well, is there anyone in the room who can
answer that?
Mr. Stephenson. Well, you're pointing out a problem of
independence. If the Inspector General has produced reports on
Superfund sites, then the Ombudsman gets an inquiry on the same
Superfund site and finds differently than the Inspector
General, then there may be some conflict with independence in
that particular case.
Conversely, in other agencies, the IG can look at the
Ombudsman activities, so you're losing both of those aspects of
independence when you merge the two Offices together.
Mr. Norwood. So you actually think that's probably not a
good idea to merge those together.
Mr. Stephenson. That's what we've stated.
Mr. Norwood. And I don't think there's anybody I've talked
to or heard speak on this panel, from Members of Congress who
don't think that it ought to be independent as well.
How can someone who works for the EPA, even though it's an
Inspector General's Office, who I know you say is independent,
how can they ever come up with anything that's different from
the EPA and I'd like somebody to tell me whenever that has
occurred. Anybody have that answer? Back here.
Mr. Kaufman. Ombudsman Martin in doing the mediation
activities that Mr. Bialek says the IG is not authorized to do
has gotten EPA 80 percent of the time to change their
decisions. With Mr. Martin being gone, there is no function no
in EPA to get EPA to change decisions because Mr. Bialek has
said rightly so, the IG doesn't have that authority. It doesn't
exist any more.
Mr. Bilirakis. That's highly irregular.
Mr. Norwood. I know it is, Mr. Chairman, but somebody here
ought to be able to answer that kind of question.
Mr. Bialek. Congressman, we issue audit reports all the
time that take issue with the behavior, the conduct, the
performance of EPA. We prosecute employees and officials of
EPA. On occasions we have taken issue with the legal position
that EPA has taken. So it's not fair to say that we don't
object and report and disagree with EPA's decisionmaking.
Mr. Norwood. The problem is since April, you don't have
anything to turn to to show us that on the Ombudsman. Is that
correct?
Mr. Bialek. As I've said, since April, our efforts have
been directed at going through this massive volume of records,
very disorganized records, with no case filing to try to
understand what the current status is of these open cases. We
thought that was our first priority.
Mr. Norwood. Mr. Chairman, it appears to me if Members of
Congress really do want the Ombudsman to be independent, we've
got to say so legislatively. It is not clear in the Solid Waste
Disposal Act, and I can't find anywhere in the definition of
Ombudsman does it mean independent. And you know, clearly the
EPA is going to control that Office until we tell them
different, where they don't have any choice. So I think that's
the bottom line. That's the purpose of the hearing. That's why
we're here. We want those persons are independent so they can
actually rule.
Mr. Bilirakis. That certainly is the purpose of the
hearing. For the record, since we did allow irregular order,
Mr. Kaufman, would you stand, and for the purpose of the court
reporter state your name and your employment? He's just going
to give you his name.
Mr. Kaufman. My name is Hugh B. Kaufman and I was the Chief
Investigator for the Ombudsman up until the beginning of this
year, and the United States Department of Labor has ordered the
Environmental Protection Agency to put me back to work in that
job.
Mr. Bilirakis. Thank you. Mr. Wynn to inquire.
Mr. Wynn. Thank you, Mr. Chairman. Thank you for calling
the hearing. I apologize for being late. I do have a couple of
questions. First of all, in the GAO's recommendation, it
indicates that you are to develop an Ombudsman, rather is to
develop a written criteria for selecting and prioritizing cases
for investigation. Has this been done?
Mr. Bialek. The Inspector General is undertaking that right
now.
Mr. Wynn. So that's in process?
Mr. Bialek. I think so.
Mr. Stephenson. Yes, that's correct.
Mr. Wynn. And are you required to submit that to Congress
to this committee?
Mr. Bialek. No, we're not required to do that.
Mr. Wynn. Okay, are you willing to do that?
Mr. Bialek. Absolutely.
Mr. Wynn. Can I put it on the record a request that you
provide us with that criteria once it's developed?
Mr. Bialek. Of course.
Mr. Wynn. And about approximately how long do you believe
that will take?
Mr. Bialek. A matter of a few weeks.
Mr. Wynn. That would be great, thank you.
Mr. Bialek. A few weeks, no. Wouldn't you like to get
something a little more certain?
I'm assuming he means at least 3 weeks, approximately the
time just before we have----
Mr. Wynn. We have a piece of legislation here and this
hearing is intended to help us determine how we're--what route
we're going to take.
Mr. Bialek. Mr. Chairman, would you say that the date
certain would be appropriate and if so, I would defer to the
chairman's guidance on this.
The Ombudsman is currently in Idaho and Washington and I'm
not sure if her expected return--obviously, she's going to be
the one who will be drafting these guidelines, so I'd like to
consult with her to see what her availability is to address
this, if you'd like.
Mr. Wynn. Should we say 3 weeks then, Mr. Bialek? I'm don't
mean to be unfair, but so we can be somewhat certain here. All
right, thank you.
Thank you, Mr. Chairman. Also, it indicates in the
recommendations to make it a consistent policy to consult with
Agency officials and it says other affected parties which I
presume to be the public prior to include their comments and
prior to making their findings, is that your practice?
Mr. Bialek. I'm sorry, could you restate the question?
Mr. Wynn. In its recommendations it says ``Ombudsman should
maintain records on his investigation and other activities
sufficient to serve as a basis for a reasonable estimate of
resource needs. In the interest of fairness, EPA should require
the Ombudsman to establish a consistent policy for preparing
written reports on his investigations by consulting with Agency
officials and other affected parties to obtain their comments
before his findings are made public. And including written
Agency comments when reports are published.''
Are you consulting, is it your policy to consult with the
public in preparing these written reports?
Mr. Bialek. Certainly to consult with all affected parties
and if the public is an affected party, absolutely.
Mr. Wynn. So if you have a complaint, that that party's
complaints would be included?
Mr. Bialek. Absolutely.
Mr. Wynn. Okay. Next, are other Federal Ombudsmen
prohibited by the Agency from communicating without proapproval
when they're communicating with Members of Congress, the media
and the public? Is that standard government practice?
Mr. Bialek. Not to my knowledge.
Mr. Wynn. So this would be unique to the EPA Ombudsman?
Mr. Bialek. Correct.
Mr. Wynn. And what's the basis for that policy?
Mr. Bialek. The basis is that the Office of Inspector
General speaks with one voice, that we want to make sure when
information is imparted, whether it's to Congress or to the
media that it's accurate and complete and pulls from all of the
information----
Mr. Wynn. I think I understand, but it does seem to be then
a very unusual policy relative to other Ombudsmen's Offices.
Are the Ombudsman's cases currently housed in the IG's Office
open to the public, Members of Congress and the news media? Are
the case files open?
Mr. Bialek. Yes. No, they're government records.
Mr. Wynn. Are they subject to Freedom of Information Act
requests?
Mr. Bialek. Absolutely.
Mr. Wynn. But that's the only way they can be obtained?
Mr. Bialek. That's the appropriate way for them to be
obtained from the public.
Mr. Wynn. What about Members of Congress?
Mr. Bialek. We follow the rules whether they're Ombudsman
records or investigative records or audit records----
Mr. Wynn. What specific rulemakes those records
confidential?
Mr. Bialek. They're not public records. They become public
when we issue them as final reports, for example.
Mr. Wynn. Once they're final reports, then are they public
record, available to the public?
Mr. Bialek. Our intention is to publish our reports
publicly.
Mr. Wynn. But the files themselves are only available
through Freedom of Information, is that your position?
Mr. Bialek. That's the typical response of any government
agency when it comes to working paper files that support final
reports.
Mr. Wynn. Okay.
Mr. Bialek. They are available----
Mr. Wynn. That's fine. I think I understand. Now you said
fairly emphatically that you're not going to be an advocate or
disseminate information on operations. If a citizen complains
or a group complains about dumping or hazardous waste that have
not been properly handled, what is your role? I mean do you
then take on the role of advocate for that or do you
investigate and if, in fact, it is true, do you then press for
prosecution, recommendation prosecution? What do you do when
you have hard evidence provided by a member of the public?
Mr. Bialek. If we've conducted an investigation and have
obtained information about a violation of a law, whether it's
civil or criminal, we pursue the appropriate remedies, whether
that's a criminal prosecution or a civil fraud lawsuit. If
there are violations of regulations, or other responsibilities
and obligations by agency officials, then we issue our reports
to publicize that.
Mr. Wynn. Have you recommended any prosecutions, civil
actions, fines or any action based on these findings?
Mr. Bialek. Not since we inherited this function about 13
weeks ago. We have been about the business of going through
those records and making an assessment as to where we need to
spend most of our time and attention pursuing those high
priority cases that were left over from the previous office.
Mr. Bilirakis. The gentleman is granted an additional 2
minutes.
Mr. Wynn. Thank you, Mr. Chairman. So you're looking at the
cases now and then you're going to make recommendations?
Mr. Bialek. Correct.
Mr. Wynn. Do you believe it's within your purview if the
facts support it, to become then an advocate for prosecutorial
action, to recommend prosecutorial action?
Mr. Bialek. Absolutely.
Mr. Wynn. So that is going to be your policy. Okay. Now you
made an interesting comment, I think it was Mr. Shimkus was
asking you about quote kooky regulations and you said that if
you found there were problems, you'd bring them, laws may be
adversely affecting a small business, you'd bring them to
Members of Congress. Was that your position?
Mr. Bialek. Yes.
Mr. Wynn. Have you reviewed the laws or complaints about
laws in this area?
Mr. Bialek. We have about 17 open cases right now. I don't
know if any of them include complaints about laws themselves or
regulations themselves.
Mr. Wynn. So you're not aware of any problems with the law
that might adversely affect the small business person?
Mr. Bialek. I'm not personally aware of any right now.
Mr. Wynn. But it's your position that if this--what's the
criteria you would use? I guess we're kind of getting back to
that. How do you make your decision? What's the basis for your
decision?
Mr. Bialek. I think that's what you asked us to produce for
you in a few weeks from now.
Mr. Wynn. So right now, you don't have anything is what
you're saying? You don't have a criteria. You're just in the
evaluation phase?
Mr. Bialek. Correct.
Mr. Wynn. Mr. Chairman, I relinquish the balance of my
time. Thank you.
Mr. Bilirakis. Mr. Norwood, an additional 2 minutes.
Mr. Norwood. Mr. Chairman, I think we've established what I
need to know.
Mr. Bilirakis. Thank you. Mr. Pallone? Mr. Pallone doesn't
wish an additional 2 minutes.
Ms. DeGette, an additional 2 minutes.
Ms. DeGette. Thank you, Mr. Chairman. I just have--I want
to actually take this discussion and put it on its head for a
minute.
Mr. Stephenson, in agencies where the Ombudsman function
and the Office of Inspector General are separate entities, one
of the things that the Office of Inspector General can do is
audit the Ombudsman, correct?
Mr. Stephenson. Correct.
Ms. DeGette. Now when you put the Ombudsman into the Office
of Inspector General, the OIG can now no longer independently
audit the Ombudsman, right?
Mr. Stephenson. Correct.
Ms. DeGette. Thank you. I don't have any further questions.
Mr. Pallone. Mr. Chairman, I just wanted to enter something
into the record, if I could.
Mr. Bilirakis. Please describe it.
Mr. Pallone. I would ask that correspondence relating to
documents requested from the EPA with respect to the Ombudsman
be inserted into the record and there's a letter from Mr.
Dingell and myself to Mrs. Whitman and I guess a response from
Mrs. Whitman and a letter from me to Chairman Gillmor also.
Mr. Bilirakis. Without objection, that will be the case.
[The information referred to follows:]
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[GRAPHIC] [TIFF OMITTED] 81490.012
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Mr. Pallone. Thank you.
Mr. Bilirakis. Mr. Fabricant, what is the status of Mr.
Martin now? What is taking place regarding his situation, if
anything? Can you share that with us?
Mr. Fabricant. I can generally describe for you the status.
Again, it's in litigation. There are components of it that
involve litigation, so I can't elaborate too deeply on it.
Mr. Martin, in April of this year, submitted a letter
indicating a voluntary resignation, after a United States
District Court dismissed a case regarding Mr. Martin's
allegations about inappropriate activity by the Agency. The
dismissal of that action was for failure to exhaust
administrative remedies, so Mr. Martin is now before the
Department of Labor, actually. Office of Special Counsel is
looking at the allegations levied by Mr. Martin and we're
currently, administratively, litigating the concerns raised.
Mr. Bilirakis. You're litigating those concerns?
Mr. Fabricant. In an administrative adjudication, yes.
Mr. Bilirakis. Administrative adjudication.
Mr. Fabricant. Yes.
Mr. Bilirakis. The word mediation has been presented to me.
Is there anything to that?
Mr. Fabricant. We are in the preliminary stages of that
litigation and I characterize them as settlement negotiations
and discussions of the terms of possible mediation are being
discussed as we speak, but again, the actual terms are
confidential in settlement negotiations and I can't go into any
detail.
Mr. Bilirakis. I appreciate that. Look, we have two bottom
lines here in my opinion. One is congressional intent. Now, you
know, maybe we weren't as clear back in the wee morning hours
in 1984 when the Office of the Ombudsman was created in terms
of the function and in terms of independence and things of that
nature. But I think it's quite clear, and should be quite
clear. I know you're counsel, you're attorneys, I'm not sure
how much you get involved as far as the public is concerned and
whether you go down and see what's happening with some of these
sites, but I assure you that based on our experience in Tarpon
Springs, Florida, there's a lack of confidence, there's a lack
of trust, there's a lack of credibility insofar as the
Environmental Protection Agency is concerned. And I say there
is, while it sounds like it's just today, this actually goes
back quite a ways back. That's why in my opening remarks I said
this should not be a partisan thing. These problems go well
back before this administration.
So you good gentlemen, I'm an attorney, too, and you're
doing your job as counsel. I just question whether you get
involved from that standpoint and maybe your function is to not
be concerned with all of that. Maybe your function is to have
the blinders on and be concerned only with the legal aspect of
it all. But I say to you, from the standpoint of the public who
we are here to serve, it is best--no reflection on the IG--as
Ms. DeGette said, they're a fine organization, and they do a
great job, in general, but we don't think that their role as
far as the Ombudsman is concerned is something that should take
place and is taking place. But something should be continued.
Mr. Martin, and his Investigator, in my opinion, ought to
have something worked out with those people so they can
continue to function. Let's not worry about turf. Let's not
worry about the politics. Let's not be concerned about whether
or not they rubbed us wrong in the past and everything. Let's
be concerned about what we're supposed to be doing for our
constituents. There's a level of confidence in these
individuals and let's give them an opportunity to finish their
work. I mean, maybe I've gone a little bit too far in making
that comment, but do you have a quick comment regarding that?
Mr. Fabricant. In general, Mr. Chairman, the Governor--
Governor Whitman shares the concerns of the committee and
really, the goals of the committee in terms of improving the
Ombudsman's functions within the Agency.
We truly believe that the independence of the Agency has
been enhanced with the shift to the Office of Inspector
General. Although it's in its earliest stages at OIG, we think
there's been significant headway made in terms of getting a
handle on the case load and prioritizing and moving forward in
a very efficient and effective fashion to resolve many of the
conflicts on cases that are out there.
So generally, our goals are shared. I will report back to
Administrator Whitman your concerns on the other matters,
including Mr. Martin, but again, we're in the context of
litigation and we will be continuing those discussions with Mr.
Martin.
Mr. Bilirakis. You use the term getting a handle on it.
We've talked about the boxes and boxes that they haven't had an
opportunity to go through yet. They've mentioned in Tarpon
Springs this last Saturday morning and we're talking about a
huge gap of time here.
So why should they have to get a handle on it? Why should
the gap take place and all that when we've got people who are
experienced and have been involved from a consistency and
stability standpoint? Let them finish their work. That would be
the easiest way in my opinion, and any way you look at it, that
would be the easiest way to go.
Now I'm not trying to put the EPA in a position where they,
in the process of mediation or negotiation or whatever the case
may be, don't have a position. You've got to have a position,
and hopefully, if we're talking true mediation, we're talking
give and take. And hopefully that is going to be the case on
everybody's side.
Well, all right. Having said all that I do want to thank
you, gentlemen, for--Mr. Shimkus. John, I apologize, you snuck
in on me.
Mr. Shimkus. I'm sorry, Mr. Chairman.
Mr. Bialek. Please proceed if you'd like to inquire.
Mr. Shimkus. Just a quick question, a follow-up. What is
the problem with a view that an Ombudsman should be involved in
addressing disputes from the citizens in an external position
versus the critical role that the IG plays internally?
And I'd like to start with Mr. Stephenson. Based upon that
definition of an Ombudsman, is the Ombudsman's role
historically defined as doing both external and internal?
Because I know the role of the IG, in my experience with IGs
has been internal aspect and internal issues within
organizations.
Let's start with Mr. Stephenson?
Mr. Stephenson. As typically defined, the Ombudsman is an
informal problem resolver, an unencumbered problem solver
between the public and the Agency head.
Mr. Shimkus. So that kind of supports my basic premise.
Mr. Bialek, do you have a problem with that definition?
Mr. Bialek. We do both internal and external, but I think
it probably depends again on your definition. If you define
external as going after contractors or going after grantees for
having engaged in misconduct, we do that and that's external.
We define internal as employees of EPA and the EPA programs and
trying to correct problems----
Mr. Shimkus. I would define internal contractual problems
as being part of the EPA because you're contracting, you're
going into an agreement. My issue is who is speaking for the
individual citizen and that's where I think my argument would
be that maybe inside the IG, not disputing the work that you
do, is better, more defined by what Mr. Stephenson has defined
as the role of Ombudsman.
Mr. Fabricant, do you have anything you want to add to
this?
Mr. Fabricant. Congressman, just generally, again the
Office of Inspector General submits reports to the
Administrator regarding the activities of EPA onsites and would
be appropriately able to submit those reports and again, we
take the recommendations and move forward accordingly with
those recommendations.
There are both functions, internal within EPA and EPA
activities as well as external.
Mr. Shimkus. Well, put me down in a position that I think
they should be separate and in two different locations. I think
I'm making my point fairly clear.
Mr. Bialek, all these--what are you doing with all these
boxes that--can you just briefly tell me what you've had to do
since the receipt of all this information once you took over
the oversight? I'm not a lawyer, so--once you've taken over the
Ombudsman Office and brought it into the IG.
Mr. Bialek. If I can just follow-up 1 minute on your last
issue----
Mr. Shimkus. You're not going to convince me----
Mr. Bialek. No, I just want to make it clear. I didn't want
to mislead anyone here. I think Congresswoman DeGette asked a
question about public hearings. Although we have not had public
hearings in the sense that I think of a hearing with a
magistrate and testimony, we have held public meetings and we
will continue to hold public meetings. I don't want these
committees to think we do not intend to engage in or maintain a
dialog with members of the public.
That's the first point.
The second, to answer your question, there is a certain
organization that needs to be brought to these records. They
were in total disarray when we got them. We need to understand
what has been done, what the status is of what was done by the
prior group and what's happened since then. As we've said,
they're voluminous records and we've been trying to understand
their current status. We have asked--we have invited Mr. Martin
to come in and meet with our Acting Ombudsman to try to assist
us in that endeavor and then we will be able to move out and
launch our teams to go pursue those open priority cases.
Mr. Shimkus. Mr. Chairman, I'll yield back my time, thank
you. Thank you, Panel.
Mr. Bilirakis. If Mr. Shimkus will yield to you.
Mr. Shimkus. I'd be happy to yield for my friend from
Georgia.
Mr. Norwood. The records were in total disarray that you've
got. Doesn't that have a lot to do with the fact that the EPA
was steadily undermining the Ombudsman's Office with this
budget by cutting it, reducing it, lowering it? We don't want
to hear from you. We'll cut your money out from under you.
Isn't that why you have boxes that's in disarray?
Anybody? Mr. Fabricant?
Mr. Fabricant. Congressman, I wouldn't speculate as to why
the boxes.
Mr. Norwood. You can then speculate on did their budget get
cut?
Mr. Fabricant. No, again, the budget has been increasing
over time, dramatically. It's doubled in----
Mr. Norwood. Now we have other witnesses that are coming up
next that I'm going to ask this same question to.
Mr. Fabricant. The budget has doubled between 1999 and
2001, so there's been incremental increases over the last
several years to improve the budget and the finances of the
Ombudsman function.
Mr. Norwood. I'm going to remember that now because I'm
going to ask that same question to the next panel and they're
going to tell me why that budget may have been doubling, but
they weren't getting it.
Thank you, Mr. Chairman.
Mr. Bilirakis. All right, well, again as I started to say,
our gratitude to you. As some of you know, we always have
written questions that we'd like to submit to the panelists and
you would be agreeable to responding to those, and again, we
thank you.
I don't know if we proceed forward with this legislation
regarding the true independence that was intended by Congress
initially. I would hope that you all will be cooperative in
that regard, even while there's always a concern about the
unintended consequences and things of that nature. So
hopefully, you all will be helpful and Mr. Stephenson,
obviously, we would depend upon you greatly.
Thanks for all your time. Thank you very much.
We'll call the second panel, Mr. Robert Martin. It says
here ``Citizen.'' Come on up here, Citizen. Former Ombudsman,
obviously. And Ms. Heather Malinowski, Secretary, Pinellas-
Pasco Technical Assistant Grant, fondly referred to as Pi-Pa/
TAG from Tarpon Springs, Florida.
You've both submitted written testimony and what we would
hope you would do is sort of complement, supplement that
testimony, summarizing it, if you can. I'll set the timer on 5
minutes and hopefully, you'll finish within that period of
time. If you run over somewhat, no problem, you've sat around
and been patient for quite a while here.
So Mr. Martin, why don't we just start off with you?
STATEMENTS OF ROBERT J. MARTIN; AND HEATHER MALINOWSKI,
PINELLAS-PASCO TECHNICAL ASSISTANCE GRANT
Mr. Martin. Thank you, Mr. Chairman. Can I be heard?
Mr. Bilirakis. Your mike, your mike.
Mr. Martin. How about now?
Mr. Bilirakis. Now we can hear you.
Mr. Martin. All right, thank you very much, Mr. Chairman,
and for accepting my testimony into the record. I would like to
touch on several points thematically as we proceed to consider
what's become of the Office of Ombudsman.
First, I would like to note that true independence of the
EPA National Ombudsman function has always been an issue within
the EPA, at least during my tenure and that's been, that was
9\1/2\ years which is to say, Mr. Chairman, that problems
around independence don't go to merely--I'll just say, one
administration or another. It's always been a problem, as
you've noted in your own Ombudsman case in Tarpon Springs. I'm
sure people in Idaho can tell stories. I'm sure people in Ohio
can tell stories and in Colorado.
I think that's an important tone to set as we proceed to
deliberate, but I must note that the EPA National Ombudsman
function, as it existed during my tenure, has been dissolved
and that there is not now an Ombudsman function. The critical
independence of the Ombudsman was removed entirely and I say
this based upon the elimination of my position description
which provided that I would have quote unquote maximum
independence in doing this job on behalf of the American
people.
Also, the ability to define a problem, I mean just to say
hey, I think we've got a problem here. That's very important in
a bureaucracy. It's very important in government to be able to
say so publicly, especially to people in communities who often
feel very distant from their government. That ability was also
removed. And that's really important because if you can't do
that, you can't stand up for them and whether it's the
MacIlmurray family in Georgia or folks in Overland Park in
Denver, folks in Tarpon Springs, on a much larger scale, people
in lower Manhattan, affected by the collapse of the World Trade
Centers, if you can't say I think we have a problem, as an
Ombudsman, you don't have an Ombudsman and people don't have
help and that's wrong. And I would not agree with that. And
that's why I resigned.
I do not believe the EPA National Ombudsman function can
exist within the EPA Office of Inspector General, both as a
legal and a practical matter. And that's not to say that the
Inspector General Office, that they're bad people. I'm sure
they're good people and they do a good job as OIG, but they're
not an Ombudsman. They can't be.
And I feel that by the dissolution of the EPA National
Ombudsman function, American communities, American people that
live in proximity to Superfund sites or hazardous waste and I
think that's as many as 1 in 4 in the United States and that's
quite a lot, have lost something. They've lost at a very
critical time--it's always a critical time. Ombudsman
attributes of truth and openness and a commitment to listening
and I'll just say it, without a true EPA National Ombudsman
function, communities are at risk from an unchecked bureaucracy
and that's again not to say that EPA is full of bad people. I'm
not here to pound that. But there needs to be checks and
balances so that people get listened to when they've got a
problem and that their problems get fixed when they need to be
fixed and that's what I stood for in the job and I don't think
that's going to happen now. I may be wrong, but I don't think
it's going to happen.
So I'm here to ask you to listen to that and also your own
folks and to say that a truly independent National Ombudsman
function needs to be established in law for the benefit of the
American people. I think the legislation needs to be worked on
and reported out of this committee and passed by the Congress.
I think the Ombudsman needs to be separate, needs to be truly
independent so that people can get the help they deserve. And
we're not talking here about giving an Ombudsman function all
kinds of power or billions of dollars of money. I was very
clear. For many years, I had no power. Other people at EPA have
decisionmaking power. My only power was to go where people were
and listen and come back and say I think we've got a problem.
Let's see if we can fix it. Can we agree we have a problem that
needs to be fixed? And that's really important. We don't have
that right now.
I guess factually, I'd like to take issues with a few
matters, that the records were in total disarray which I
maintained as Ombudsman, I disagree. I feel the records were
very well maintained and I know if I had to, I could find
whatever I needed to within an hour on any case around the
country.
Also, I've received no invitation to speak to the Inspector
General or for that matter to anyone in EPA, following my
resignation and I would like to note that the resignation, in
my view, was made under duress. I felt I had no choice. I have
consistently tried to work out any problems that I have with
the EPA. I think many of the folks who you represent would say
the same for themselves, that they try.
There is the prospect of a mediation, but there is no
mediation yet. And I can say that I have offered, in good
faith, to go to the table with EPA and work out a return,
solely for the purpose of finishing these cases. And then I'll
go.
The Agency has not responded to that and I think it's
vitally important that the work which was begun, whether it's
in Tarpon Springs or Augusta, Georgia or Lower Manhattan, gets
finished and gets finished with integrity.
I think frankly, as Mr. Norwood spoke earlier, the rest is
up to Congress to make sure that this function, this Ombudsman
function, has the right kind of charter and that it's separate
and independent and then hopefully the rest will be history.
But I do take issue with that.
Also, I'd like to note that over time, I have offered to
meet the Administrator, to work out any potential differences
around the placement of the Ombudsman function. That never
happened. There's been no response and never was a response to
that. Instead, there was a decision, in my opinion, dissolve.
So I guess that's what I've got to say for the moment. I'm
glad to receive any questions that any member and I thank you.
[The prepared statement of Robert J. Martin follows:]
Prepared Statement of Robert J. 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
<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 decision-
making 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 decision-
making 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 follow up 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 US 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, United States 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, eighteen 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, US 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 US 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, US 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 US
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
decision making 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 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. 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, 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, 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 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.
Mr. Bilirakis. Thank you, Mr. Martin.
Heather, please speak into the mike and tell us why you
feel that there is a great need for independence for the
Ombudsman's Office?
STATEMENT OF HEATHER MALINOWSKI
Ms. Malinowski. Is this mike on?
Mr. Bilirakis. It's on.
Ms. Malinowski. Okay, thank you for giving me the
opportunity to speak to you today. My name is Heather
Malinowski. For 7 years I've been Secretary of a community
group in Tarpon Springs that's involved with the clean-up of
the Stauffer Chemical Superfund site. We hold an EPA technical
assistance grant in order to provide information to the
community about the site. And I'm here to tell you our story as
it relates to the Office of the EPA Ombudsman.
I want to start by saying that the State of Florida rests
on a base that's made up largely of limestone which is a soft
rock and when limestone is exposed to water filtering down
through it, it dissolves and it forms caverns and craters and
tunnels and so it's a very econologically fragile type of
environment in certain areas, not the whole State.
The Stauffer Chemical Plant is situated in one of these
areas where sinkholes are very common because of this
geographical--the big problem about this is that just
underneath this lies the Florida aquifer which serves as the
main source of drinking water for most of the people that live
in the State. Stauffer Chemical was a phosphate processing
plant. It is located in a residential community. It's across
the street from an elementary school. And it's located right on
a small body of water, the Anclote River, just before it
empties into the Gulf of Mexico.
When they closed down in 1981, they left behind over
500,000 tons of chemical and radiological contaminants. These
contaminants were buried in drums. They were poured into
unlined pits. They were poured directly on to the ground. For
years, they've been washing into the Anclote River and
filtering down toward the aquifer. The more superficial layers
of the aquifer are already contaminated.
The site was placed on the national priority list in 1994.
EPA Region 4 has mismanaged this site and I want to tell you
just a few of the things that were most upsetting to us. First
of all, they refused to honor the State of Florida's clean-up
goal for arsenic. They promised us that they would give us
residential standards in the clean up because it's located in a
residential community. But when we received the Record of
Decision with the little chart that tells you what the clean-up
goals will be, the part about arsenic was blank. And there was
a note that said when they clean up all the other contaminants,
they assumed that arsenic would be cleaned up also.
And when we asked them why this was the case and why they
didn't actually give us the standard, they said don't worry,
you're going to get your residential standard as we promised.
Well, with much digging and no help from EPA, we found that
residential standard is a relative term and what they planned
on doing was regulating arsenic as a common poison instead of a
carcinogen because that would be much less protective, but they
didn't actually want it in the document.
Also, they ignored concerns expressed by the State
Environmental Protection Agency, by the County Health
Department and by the Technical Advisors that we had hired.
Stauffer proposed containing all the contaminants onsite, but
it was a decision that was based on inadequate data because
they never finished the geophysical studies that would show
whether or not the area was going to be prone to sinkhole
formation. They never performed the geological, hydrogeological
studies that would tell where the water, which was already
contaminated was flowing to. And they never checked to see if
the cement that they planned on mixing with the contaminants
below the water table, they didn't check to see if that would
leach. And it's known that that cement will break down with
exposure to salt.
But the worst thing that they did in September 1999 was to
send the Consent Decree to the Justice Department which was
based on these inadequate studies. We asked them not to send it
and they refused. They went ahead and they did.
In December 1999, the Ombudsman Office began an
investigation into the site. As a result of that investigation,
the EPA and Stauffer decided that they would accept the State's
arsenic standard, the industrial standard, not the residential,
but it was still much better than what they had planned on
doing.
They also stopped ignoring all the reviewers. There was
communication and coordination between all the levels of
reviewers, the State, the county, our people. They withdrew the
Consent Decree and they began working up work plans for these,
what they called additional studies, but what really should
have been part of the feasibility study. And also, two new
things that happened. They brought in the U.S. Geological
Survey which was wonderful because those are the experts in the
geology down there and it was also revealed that there had been
corporate and financial maneuverings and that a new company had
taken over and had not been thoroughly investigated as to their
ability to cover the costs.
Residents and elected officials really believed that
progress had been made. We were ecstatic. We really felt we
were doing well. And then in June 2000, the system began to
fall apart. As Congressman Bilirakis said, there was a town
meeting scheduled where all the reviewers were going to come
together and talk about the amended Consent Decree. EPA sent
two staff members. They showed up. They said they would make a
brief presentation. They would stay and answer questions for 10
minutes, as long as they strictly were to their presentation,
which was really just reading the list of changes and telling
us what pages to find them on. And then under questioning, they
just got up and they refused to answer questions and they
walked out, in full view of the television cameras with
Congressman Bilirakis and Mr. Martin and Mr. Kaufman telling
them that they should stay.
The second thing that happened is--well, the next thing
that happened, everybody knows. Mr. Martin was not able to
control his staff any more. In December of 2000, the
Investigator, Mr. Kaufman was told that he could no longer work
for that office and Mr. Martin was reminded that he had no
authority over his own staff, whether or not to keep them or to
let them go.
And eventually, the Ombudsman Office became crippled. It's
been 2 years since what we call the walkout meeting occurred
and we've been waiting. There was a brief period of hope and at
this point the people in the community have no faith in this
Agency. We do not believe that they will do the right thing
here.
As to the transfer of the Ombudsman Office to the Inspector
General, I think that's been covered. I probably don't need to
talk about it, but I will say that looking back in history,
there have been times when injustices went on for much longer
than they should have because there was someone willing to step
into the job of another person who was refusing to accept a bad
situation and we believe that this is the case here.
We understand that the large issue is the long-term
stability and effectiveness of the Ombudsman function, but I do
need to say something about Mr. Martin. Many people start out
with integrity, but I believe sometimes it takes a great deal
of courage to maintain that integrity in certain situations.
Mr. Martin has exhibited both of these qualities, integrity and
courage in very large measure. The only criticism we've heard
is that his files were messed up, but he was obviously trying
to function with very little support of staff. We believe he
should be given the support and the resources he needs to do
his work and to set the standard for others who will follow
him.
I've come here with two requests. The first one is very
selfish and if at some point there's an opportunity for you to
be supportive of mediation, we would really ask that you would
do this because we would really like to see Mr. Martin and his
investigator returned to our site and the other sites and
finish the work that they're already very involved in. These
are all sites with serious problems. And the second, of course,
is to be supportive of this piece of legislation. It's really
deserving of nonpartisan support. This is a democracy and
everybody can agree that government agencies need to be
accountable to the people that they were formed to serve.
Thank you for listening to me. I'd be glad to answer
questions.
Mr. Bilirakis. Thank you, Heather.
Ms. Malinowski. I would like to add one more thing.
Mr. Bilirakis. Add one.
Ms. Malinowski. The Inspector General and the new Acting
Ombudsman did visit our community over the weekend and what was
revealed at that point is that someone did ask them to
intervene 3 years ago in our situation and they did not. The
woman who had made the request made the point that if they had
done their job at the time, we never would have needed the
Ombudsman Office to come down and help us.
Thank you.
[The prepared statement of Heather Malinoski follows:]
Prepared Statement of Heather Malinowski, Secretary, Pinellas-Pasco
Technical Assistance Grant
Dear Sirs: I would like to thank you, Chairmen Gillmor and
Bilirakis, Ranking Members Pallone and Brown, and Members of the
Subcommittees for giving me the opportunity to testify before you
today. My name is Heather Malinowski, and I am secretary of the
community group Pinellas-Pasco Technical Assistance Grant, known as Pi-
Pa-TAG.
Pi-Pa-Tag, Inc., holds a Technical Assistance Grant to provide the
community with information concerning the cleanup of the Stauffer
Chemical Superfund Site in Pinellas County, Florida, under EPA
Assistance Agreement number 1994931-01-0. Our newsletter reaches over
seven hundred concerned citizens at the intersection of Florida's
Pinellas and Pasco counties.
opening statement
We are writing on behalf of the community living in the vicinity of
the Stauffer Chemical Superfund Site in Tarpon Springs, Florida, as
well as others across the nation who may have been adversely affected
by hazardous waste sites located in their communities.
I am presenting this testimony on behalf of the entire Board of Pi-
Pa-TAG, Inc. With this letter, we would like to express our complete
and unconditional support for the creation of an independent, fully
staffed and funded, EPA National Ombudsman Office.
We request that this letter be included as testimony in the
Subcommittee hearing record.
st. petersburg times editorial
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.
I would like to tell you our story, as it applies to the EPA
National Ombudsman Office.
stauffer chemical superfund site in tarpon springs, florida
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
lie the Florida Aquifer Systems which serve 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
and across the street from an elementary school, the site sits on the
bank of a small waterway, the Anclote River, just before it empties
into the Gulf of Mexico. It is located very close to the Greek ``Sponge
Docks'', a prime center for the tourist trade upon which this area
heavily depends. Nearby is an estuary which serves as the breeding
ground for a once-thriving, but now struggling, local fishing industry.
It is a beautifully picturesque, but also an ecologically fragile
environment. Because of its coastal location, the area is annually
subject to potential flooding, storm surges, as well as hurricanes.
This phosphate ore processing plant closed down in 1981, but left
behind approximately 500,000 tons 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. The site was placed on the federal EPA National Priority List
of Superfund Sites in 1994.
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 was intended to be mixed with the contaminated
soil below the water table, and which is known to break down upon
exposure to salt water, 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, in September 1999, over strong objections raised by
community members, 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.
other controversial epa region 4 actions at the stauffer superfund site
* EPA Region 4 refused to honor, or even to acknowledge, the State
of Florida's Soil Cleanup Target Level for Arsenic of .8 parts per
million (ppm) for residential areas.
* EPA Region 4 attempted to mislead residents into believing that
the arsenic on the site would be cleaned up to the promised residential
standards (.8 ppm), when their intention was, in reality, quite
different. They had decided to regulate arsenic in soil as a common
poison instead of as a carcinogen, which would have allowed them to
apply a much less stringent cleanup level of 21.1 ppm. They continued
to tell the community that they were using residential standards, but
neglected to mention that ``residential standards'' was a relative
term, and that the residential standard for a poison was much less
protective than the residential standard for a carcinogen. Arsenic is
known to be a Class A Carcinogen.
* EPA Region 4 shelved and ignored specific reviews and
recommendations from the Florida Department of Environmental Protection
(FDEP), as well as reports submitted by a university toxicologist hired
as a scientific advisor by the state agency.
* EPA Region 4 ignored the Pinellas County Health Dept. / Dept. of
Environmental Engineering, in spite of their repeated attempts to have
input into the process.
* In spite of having granted a Technical Assistance Grant (TAG) to
the community group Pi-Pa-TAG, Inc., EPA Region 4 dismissed concerns
raised by the group on the advice of their independently hired
technical advisors.
epa national ombudsman investigation at the stauffer superfund site
Three months later, in December 1999, at the request of Congressman
Mike Bilirakis, 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 US 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.
A Town Meeting had been scheduled by Congressman Bilirakis' office,
at which the Ombudsman Office was to hold the Third Public Hearing for
the purpose of reviewing changes which had been made to the newly
Amended Consent Decree. The meeting was to be attended by all the
various reviewers (State of Florida, Pinellas County, TAG Advisors),
and members of the community.
ombudsman funding request denied
Shortly before the Town Meeting, we received word that the EPA
Ombudsman and his Chief Investigator would not be able to attend the
meeting. Their Request for Funding Approval had been denied, and they
had been told that they were to apply their resources elsewhere. It was
only after Congressman Bilirakis and a few other Congressional Members
discussed the matter with then-EPA Administrator Carol Browner, that
the funding was approved, and the meeting could proceed as planned.
agency refusal to cooperate with ombudsman investigation
The Town Meeting took place on June 5, 2000. The two previous
Ombudsman Hearings had been attended by EPA Region 4 staff representing
all five levels of authority--from the Regional Administrator down to
the Remedial Project Manager for the site. In contrast, only two EPA
Region 4 employees attended this particular meeting. They informed the
group assembled that they had their own plan. They would make a very
brief presentation (basically, reading a list of changes made to the
Amended Consent Decree, and indicating what pages these changes were to
be found on). They would then spend ten minutes responding to
questions, which they said must be strictly limited to their
presentation, and then they would leave. Which they did.
Refusing to answer any further questions, over the strong
objections voiced by Congressman Mike Bilirakis, Ombudsman Bob Martin,
and Investigator Hugh Kaufman, and in full view of television cameras,
the EPA Region 4 employees got up and walked out of the meeting.
ombudsman denied right to maintain his own staff
The next assault on this office occurred in December 2000. At that
time, the Chief Investigator for 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.. Hiring and firing was under the direct
jurisdiction, and at the discretion of, his supervisors in the Office
of Solid Waste and Emergency Response (OSWER).
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.
current situation
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 during 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 that the agency will really do what the former
U.S. EPA Assistant Administrator Timothy Fields had promised, in
person, on November 16, 1999: that the agency would ``do right by this
community''.
The Independence of the EPA National Ombudsman Office has been a
fantasy.
purpose of an ombudsman office
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''.
transference of epa national ombudsman office to epa inspector
general's office
EPA Administrator Christie Whitman has recently transferred the EPA
National Ombudsman Office to a position within the EPA Inspector
General's Office. In our opinion, this is a step in the wrong
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.
The United States Ombudsman Association (USOA) has stated that
``the most important element in the design of an effective ombudsman's
office in government is structural independence, that is, structurally
separating the ombudsman from the agency under the ombudsman's
jurisdiction.'' They have criticized the above transference as being an
ineffective step towards the goal of creating a truly Independent
Ombudsman Office.
The United States General Accounting Office (GAO) has stated that,
``If the EPA intends to have an Ombudsman function that is consistent
with the way the position is typically defined within the ombudsman
community, placing the national ombudsman within the OIG does not
achieve that objective.''
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.
hr1431
To these ends, we respectfully request that you give your full
support to the Ombudsman Reauthorization Act of 2001 (HR1431).
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.
Mr. Bilirakis. Thank you. Let's see. Mr. Martin, you
served, in my opinion, with distinction as an Ombudsman. Did
you have complete independence to determine what cases should
be opened, and what cases should be closed? Can you go into the
process there for us?
Mr. Martin. Sure. I had uncomfortable maximum independence.
Mr. Bilirakis. Uncomfortable. Why don't you go into that?
Mr. Martin. Which means that I got some very nasty problems
to look at and some very controversial matters. I would say
yes. I made the calls as I saw them and that's because I had a
job description which provided for maximum independence. That
protected that ability, but I did make those calls. I made them
as long as I could until I couldn't make them any more.
Mr. Bilirakis. I guess I don't quite understand. At what
point were you not able to make them any more?
Mr. Martin. I'm sorry, sir. When the temporary restraining
order awarded by Federal Judge Roberts was vacated, not on the
merits, but to move the case to the Office of Special Counsel
for administrative pursuit of remedies, when that TRO was
vacated, within hours there was communication to, in my
opinion, dissolve the function and my position description
along with it. It was at that time while I was away on official
travel to New York and to Colorado, that I ceased to have the
ability to make those calls.
Mr. Bilirakis. Let me ask you though, prior to that when
you were in the office during all these years, did you have the
independence to open cases, to decide what cases you would work
on, that sort of thing?
Mr. Martin. I had the independence to select cases and that
independence has been removed by the transfer to the Office of
Inspector General, clearly. What was lacking is the ability to
control the case once I had decided it needed to be----
Mr. Bilirakis. But let's go back to that June 5, 2000 town
meeting that Ms. Malinowski referred to and I referred to
briefly earlier. And I know that your plan was to come down for
that gathering. We coordinated the dates and the time and
location and everything all together, and did you run into a
problem there?
Mr. Martin. Yes, I did.
Mr. Bilirakis. What was that problem?
Mr. Martin. The problem was that the travel was being held
up. I needed authorization to travel as did my former Chief
Investigator to do the hearing in Tarpon Springs.
Mr. Bilirakis. So you weren't completely independent?
Mr. Martin. No. And I think the GAO has pointed out in what
respects there was no independence.
Mr. Bilirakis. Did you have at any time the authority to
hire, to fire, to supervise your own staff?
Mr. Martin. No.
Mr. Bilirakis. I seem to recall that you had the Chief
Investigator. How many permanent employees or staffers did you
have?
Mr. Martin. Well, first, I didn't have any staff because
I'm now allowed to hire, fire or supervise. So that needs to be
made clear. The same goes for the budget. I mean there can be a
budget, but I had no authority to supervise the budget.
I had over the course of 9 years, on and off, one person to
help me.
Mr. Bilirakis. And that one person was the Chief
Investigator?
Mr. Martin. Yes, and intermittently, one other man, Mr.
Bell, who helped me in a couple of cases. That's it.
Mr. Bilirakis. And those people were assigned to you by the
particular office----
Mr. Martin. By them, yes.
Mr. Bilirakis. By them. Mr. Martin, you've been around a
long time so you know the process here in terms of getting
legislation through the system, and if we are successful in
terms of the legislation to really place the Office in an
independent status, it could be some time before it goes
through the entire process, etcetera.
In the meantime, you have resigned. I guess I would ask you
the question, are you willing to come back to finish your work?
Mr. Martin. Yes, I am.
Mr. Bilirakis. Why should EPA allow you to return after the
Judge dismissed your suit?
Mr. Martin. Because--well, I can defer to my legal counsel
for the----
Mr. Bilirakis. I don't want you to defer to him.
Mr. Martin. I'm not going to give you legal reasons. I'm
going to give you the real reason and that is so that the
people who need this kind of help will have the benefit of
receiving it. They're not getting it now, in my opinion.
Mr. Bilirakis. Bob, you don't feel that being within the
Office of the IG is true independence?
Mr. Martin. No, I do not.
Mr. Bilirakis. But do you feel, taking into consideration
that you have resigned, No. 1; No. 2, that it would take a
while before the legislation were to get through the process,
if ever; and No. 3 because of your concern for the public in
Denver and in Tarpon Springs and other locations----
Mr. Martin. Uh-huh.
Mr. Bilirakis. Do you feel that you could, if you had the
opportunity, do the job, complete those jobs within the
confines of the OIG? If that is going to be changed, it's going
to take legislation, and that will take time. Taking into
consideration the concerns of the public and your relationship
with them, as well as the trust and confidence, could you do
that within the confines of the OIG?
Mr. Martin. No.
Mr. Bilirakis. No. You could not?
Mr. Martin. No.
Mr. Bilirakis. So you would not be willing to even try?
Mr. Martin. I'd be willing to within the context of a
negotiated agreement come back within the original purview of
my position description which allowed for independence and
allowed me to do the things that Ombudsman do.
I cannot do those things within the Office of Inspector
General. It just doesn't work. If I could have, I would have
stayed.
Mr. Bilirakis. My time has long expired. Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. Mr. Martin, I have to
say that I was somewhat taken aback by the first Panel because
it was pretty clear to me, based on the questions that my
colleagues asked, that the EPA, Mr. Fabricant and Mr. Bialek,
as well, were basically saying that the independence that the
GAO felt was necessary for the Ombudsman was not something that
they were willing to give. In other words, that in fact, the IG
was going to decide the budget, decide who was hired, and
decide what cases were going to be considered, and so that the
very criticism, if you will, that the GAO was giving out, was
not something that the EPA cared about. They were going to
proceed to do the opposite, essentially. So under those
circumstances, I don't--it's a little difficult to be--to ask
where we go from here because they have no intention of
following through on what the GAO wants.
So I guess I had a couple of questions relating to what the
chairman said here, in other words, is there any authority
under existing statute that requires independence? In other
words, you said that you job description was changed.
Mr. Martin. Eliminated.
Mr. Pallone. Eliminated.
Mr. Martin. Right.
Mr. Pallone. Is there recourse here other than legislation?
Could one make an argument that pursuant to the original
legislation or some intent of Congress that they couldn't do
what the EPA has done?
Mr. Martin. I believe one could, yes.
Mr. Pallone. I mean I ask that because you know it's always
difficult to get legislation. Mr. Bilirakis is talking about
legislation and obviously, I support that, but I don't know
whether we're going to get it past here, so tell us what you
think we could do under the existing law, to try to correct the
situation?
Mr. Martin. Well, I think the Federal Office of Special
Counsel has provided an opportunity to achieve mediated or
negotiated settlement of this entire matter. I indicated early
on when asked by the Office of Special Counsel if I would be
willing to mediate, absolutely yes, so that I could return
integrity, to finish the work that needs to be done and go.
Mr. Pallone. So there's a possibility based on what's
happening with the Office of Special Counsel that they could
mandate that you be reinstated in the old position or in the
old way or with a certain amount of independence.
Mr. Martin. The answer is yes.
Mr. Pallone. What could we do to effectuate that here as
Members of Congress or this committee? Is there anything we can
do to help?
Mr. Martin. I suppose to say that would be the sensible
thing to achieve just that.
Mr. Pallone. I didn't hear what you said.
Mr. Martin. I suppose to do the sensible thing and just say
yeah, let's do that. Let's work this out and----
Mr. Pallone. So maybe we could do--I'm not suggesting that
that's what we're going to do, Mr. Chairman, we can talk
further, but we might be able to send a letter or to indicate
the sense of this committee in some respect, that that's what
we would like to have done on a bipartisan basis or through
letter or some communication?
Mr. Martin. Yes.
Mr. Pallone. I mean I would just say Mr. Chairman, that I'd
like to see us do something like that only because I know we're
running out of time here with 3 or 4 months and I don't know if
we can actually pass legislation.
In terms of these cases that are open, I didn't really get
any indication from Mr. Fabricant or Mr. Bialek that they were
actually going to do anything with these open cases. What are
they doing at this point here to your knowledge? They say
they're going through the files, but they didn't say that as a
result of that they were going to help out with the local
situations or do anything to move the cases forward that you
working on.
Mr. Martin. That may be correct. I have no direct knowledge
since I've not spoken to EPA.
Mr. Pallone. But I mean you're strongly of the opinion that
unless you come back, none of those--there isn't going to be
any follow up.
See, the other thing, Mr. Chairman, that is so obvious to
me and I don't even know if it's a question, maybe it's a
comment, but I'll try to make it into a question, is there's a
clear link, it seems to me between the purpose of the citizen
groups like Ms. Malinowski's, you know, with the TAG grants. I
mean we established TAG grants and citizens' groups because we
knew that there was a problem in the sense that if the EPA
didn't have local citizen groups for these sites and there
weren't TAG grants to fund them, that they wouldn't be the
local input and it seems to me that the link between what you
do and what the Ombudsman does to sort of put some kind of
watch dog status, if you will, on the bureaucracy of the EPA,
is linked and I worry that if you don't have the Ombudsman to
be sort of the national person that the citizen groups can go
to with their TAG grants, that the TAG grant program and the
purpose of the citizens' groups loses its meaning or ability to
function along what Congress intended.
I know my time is up, but maybe Ms. Malinowski could just
respond to that.
Ms. Malinowski. Yes, I think that the TAG program is a
wonderful program because originally we were faced with 12
volumes of material and a lot of it was technical and it was
hard for us to know what to do with that and it's important to
have the scientific input.
However, I will say that once we had the scientific input
and made decisions based on that, we were ignored and we were
patronized and the TAG grant was not enough really for us to
participate. It should have been, but it wasn't. And we felt
like we were listened to much more readily once Mr. Martin and
Mr. Kaufman came to Tarpon Springs.
Mr. Bilirakis. Would the gentleman yield to me even though
he doesn't have any time?
Mr. Pallone. Yes, sure.
Mr. Bilirakis. Ms. Malinowski, let me ask you, you see the
situation here. Mr. Martin has resigned. We all have had a
fantastic level of confidence and trust in him in Tarpon
Springs, and I assume the same sort of situation in Denver, and
some of these other sites. But he has resigned.
We don't know what the future of this legislation is going
to be. I mean we can't wave a magic wand and Mr. Pallone is
right, time is wasting here and if it doesn't get done this
year, you start all over again next year. Mr. Bialek asked that
we not prejudge the OIG and that sort of thing. And I guess, in
a way, we already have in terms of its relationship with the
Ombudsman function. But we've asked Mr. Martin if he would
return, if he could, to EPA under a mediation type of a
process. At this point in time, however, because the
Administrator transferred the function to the OIG, the only
place he could go back to would be the OIG. I mean let's be
logical here. So do you feel with the proper oversight on our
part and the OIG being aware of what has taken place in the
past--that he could complete this job and complete this work
within the confines of the OIG?
It's not the independence that we all want, but in the
interest of the public in getting these sites cleaned up. Do
you have an opinion? If you don't have one, don't feel like----
Ms. Malinowski. I don't have an opinion.
Mr. Bilirakis. I know you've had a personal experience.
Ms. Malinowski. And I'm trying to put myself away from the
personal experience, except that's why I'm here because it is
my personal experience. It has been our experience that
throughout this ordeal, and I've been involved for 7 years,
other people even longer. EPA has talked at us, not to us. And
I've listened to the two gentlemen here representing the
Inspector General Office and EPA, again, and I have to tell you
that they sound very much like the people that talked to us
before Mr. Martin came. And I want Tarpon Springs cleaned up. I
want that site cleaned up.
Mr. Bilirakis. Properly.
Ms. Malinowski. Properly. I want it cleaned up properly. We
all do. However, I don't want to have to spend more time
dealing with an agency that has intention of really responding
to us. I've done that for 7 years and you know, I don't have
the experience with these agencies myself. I have to say that
if Mr. Martin believes that he would be straight jacketed and
would not be able to help us the way he did before, I have to
accept that opinion.
Mr. Bilirakis. Yes, but the alternative to that is a big
gap in time. Region 4 possibly may perk up and do the job that
we would hope and all that, but the oversight of the Ombudsman,
I guess, we don't have the confidence--all right.
I'm going to finish because my time is up----
Ms. DeGette. Mr. Chairman, I'd ask unanimous consent that
Mr. Pallone be granted an additional minute to yield to me.
Mr. Bilirakis. Without objection.
Mr. Pallone. Thank you. I just wanted to say, Mr. Chairman,
I don't have any additional questions, I just wanted to ask
that we spend a little time after the hearing is concluded to
talk about possibly sending a letter or some statement by the
committee.
Mr. Bilirakis. Well, there have been a number of letters.
I've sent an individual letter. There is a group letter that I
know was circulating around for signatures that apparently
didn't get into your office.
Well, all right----
Ms. Malinowski. Could I say one more thing? Would it be
possible?
Mr. Bilirakis. It's possible. You came a long way at your
own expense.
Ms. Malinowski. Thank you. I have to say that during the
hearings there were a couple of public hearings that were held,
very lengthy public hearings and it wasn't until these public
hearings where everyone came together, the Ombudsman,
Congressman Bilirakis, the State, the county, the city, all of
us were and it was because of these hearings where everyone
communicated that we made progress. It's my understanding that
that is not the way it's going to be under the Inspector
General Office, but that's what helped us. That's how we got
past* the impasse was when everyone came together in public and
talked about this.
Mr. Bilirakis. Thank you, ma'am.
Mr. Pallone. Mr. Chairman, just on this point, if I could
just ask----
Mr. Bilirakis. Well, now wait a while. Let's get regular
order here. Diana, do you have some time to be----
Ms. DeGette. The comment I wanted to make, Mr. Chairman,
everybody's talking about it takes a long time to get
legislation and we don't know if this can happen. Truthfully,
legislation can happen in 1 day. On the floor later today,
we're going to be voting on a corporate responsibility bill
that was just introduced today or yesterday. So I think on a
bipartisan basis, this is a critical problem. We should urge
our leadership to move an Ombudsman bill to the floor quickly
on the suspension calendar and I think we could have it happen.
Thank you, and I yield back.
Mr. Bilirakis. I wish it was always that easy. Mr. Gillmor
to inquire.
Mr. Gillmor. Thank you, Mr. Chairman. Mr. Martin, in the
GAO Report, they stated that from 1997 that the Ombudsman
Office had resolved only two cases and that 19 new cases were
open in that time which were not resolved.
I guess my question is is that accurate? It does not appear
to be a good use of government resources and why was that, if
it is accurate?
Mr. Martin. I think perhaps the proper characterization
would be closed as opposed to resolved. There were many cases
pending. I tried to help as many communities as I could. As I
did so, I engaged in a lot of what's been termed mediation or
alternative dispute resolution, some of the results of which
Ms. Malinowski alluded to just a moment ago where people are
brought together as opposed to straight out audit function such
as the Office of Inspector General performs. So the reason
there were many cases pending is that those efforts were on-
going in very many places and also that I was essentially just
one person.
Mr. Gillmor. One of the things, an issue identified by GAO
was the need for additional resources which you referred to. In
fiscal year 2001, the Ombudsman function was granted an
additional $900,000 for salary, contracts, grants, other
support costs which is about a twofold increase.
It's my understanding and you can tell me, I guess this is
a two-part question. It's my understanding that this money came
from other functions in OSWER to go to the Ombudsman function
in order to increase its independence and its funds to pursue
its work. And second, how did you use the money, the additional
funds in the function?
Mr. Martin. Well, you'd have to inquire of OSWER, precisely
where the money was allocated from to the Ombudsman function.
As I testified earlier, the funding was not under my control
and it's difficult to do the job without that being the case.
I do not believe that resources should come at the expense
of independence.
Mr. Gillmor. You did get the additional money, right?
An additional $900,000? I guess, what I'm asking is did you
get the $900,000 that GAO said and what did you use it for?
Mr. Martin. I did not because I never had a budget.
Mr. Gillmor. Okay.
Mr. Martin. So without actually having an account that I
control, I don't have it.
Mr. Gillmor. Were additional people hired out of that?
Mr. Martin. No.
Mr. Gillmor. $900,000, where did it go, do you know?
Mr. Martin. You'll have to ask OSWER where that funding
lies.
Mr. Gillmor. Okay. Very good. The answer is you never
really got your hands on it.
Mr. Martin. I can tell you that a portion of the allocation
was provided for the expense of my Chief Investigator who was
summarily removed. Therefore, as an example of money provided
that could not be spent.
Mr. Gillmor. Thank you.
Mr. Martin. You're welcome, sir.
Mr. Norwood. Would the gentleman yield?
Mr. Gillmor. If I have a little time left, I'd be happy to
yield to the gentleman from Georgia.
Mr. Norwood. Let me follow up on that budget question. Mr.
Chairman, is there anybody here from the EPA?
Did anybody remain in the room from EPA? Could you raise
your hand? How did I know? Okay, the budget question real
quickly. They kept alluding to the fact that your budget was
doubled, increased, whatever. You couldn't get airline tickets
to go to Florida.
Mr. Martin. That's correct.
Mr. Norwood. Now what good is it to have doubled your
budget and come here and imply to Congress that what's wrong?
We doubled their budget when in effect you were not getting the
funds in your budget. So they didn't double your budget. They
just did a few number maturations. Have I got it?
Mr. Martin. Yes.
Mr. Norwood. Mr. Chairman, they didn't get any more money.
They sat right here at this table and would make us think that
they had doubled the budget for the Ombudsman when in fact
there wasn't any.
I don't know if you call that lying or what do you call
that?
I yield back.
Mr. Gillmor. I yield back all 4 seconds I have left.
Mr. Bilirakis. Mr. Norwood to inquire.
Mr. Norwood. I'm so happy. Thank you, Mr. Chairman.
Mr. Bilirakis. On your own time.
Mr. Norwood. Ms. Malinowski, I've been here 7\1/2\ years.
There is no agency in the United States that is more
patronizing or arrogant than the EPA. I knew who was in here
from the EPA just watching the smirks on their face as this
testimony was going on.
Ms. Malinowski. I recognized them also.
Mr. Norwood. Well, I'm looking right at them. They're
behind you and they're smirking and laughing at this hearing as
if oh, those dumb Congressmen, they don't know what they're
doing and these poor people up here are just complaining about
something.
All right, now we've established the fact that although
they said the budget was increased tremendously, it was not.
Now Mr. Martin, help me. My impression of this is that when
EPA comes out with a policy, they typically back that up with
EPA science and at the end of the day there is nothing more
important to the EPA than not being proved wrong. It's a
bureaucratic thing. They--yeah, they want the sites cleaned up,
but that's not most important. First and foremost, what's
important is that we didn't make a mistake.
Now I've seen that happen in my District, as you well know.
EPA comes out with a particular finding that tells the people
of the country how, for example, you might use waste water
sludge. That turns out to be a very bad thing for a lot of
people. You ask the EPA about it and they say what do you mean
it's bad? Our people said it was okay. Then we ask somebody
independent of this Agency to look into this, what actually is
happening here? These cows aren't dying because it's hot.
What's going on here? And we find out that perhaps they were
wrong, not that they will ever admit it to anybody under any
circumstances. They would rather the cows die. They'd rather
destroy Americans than admit that they are wrong.
Now is that not why you had to resign under the pressures
of an Agency that could not tolerate anybody saying that they
may have made a mistake and this is just one mistake, ladies
and gentlemen, that has happened in my District in 7 years.
There are other people up here having the same problems, but
I'm just talking about one of many.
Now isn't that basically what's going on and isn't that the
reason we need to get you as independent as possible so
somebody can tell the truth because we know for a fact that EPA
bureaucrats will not.
Mr. Martin. Yes sir.
Mr. Norwood. I yield back, Mr. Chairman. That's what this
hearing is about.
Mr. Bilirakis. The Chair recognizes the gentleman from
Illinois.
Mr. Shimkus. Thank you, Mr. Chairman. I've got three brief
points. First of all, Mr. Martin, can you identify the
individual sitting to your right and the individual sitting
behind you just so I know who they are? Are they counsel to
you?
Mr. Martin. Sure, counsel is seated to my right, Mr.
Hartnett. The individual sitting behind me is a former Chief
Investigator, Mr. Kaufman with the Environmental Protection
Agency.
Mr. Shimkus. Thank you. Mr. Martin, you've been here the
whole time. You've heard my various statements, both on
questions and opening statements. Address this external/
internal debate that I'm talking about as far as the role of
the Ombudsman versus the role of the Inspector General. And
does that make some sense? Or in your previous office, were you
also conducting internal issues as an IG would do?
Mr. Martin. Okay, properly so, the charge of the Inspector
General is to examine matters relating to waste, fraud and
abuse. The charge of the Ombudsman, however, I feel is quite
different in nature and virtually goes to truth, justice and
democracy, openness, bringing people together, setting
differences aside, moving forward, informally initially and
then once consensus is reached, doing it formally so that an
agreement may be had to fix problems. I think the two charges
are vastly different. I did not engage in reviewing any matter
internally within the Environmental Protection Agency during my
tenure. However, when any matter relating to a wrong doing or
criminality came to my attention, I did provide appropriate
referrals to either the Inspector General or the Criminal
Investigation Division of the EPA or, in one or two cases, a
U.S. Attorney.
Mr. Shimkus. So the analysis of Ombudsman externally
fighting for the citizens with respect to the Federal
bureaucracy versus the interactions is really what you would
envision an Ombudsman role to be?
Mr. Martin. Yes.
Mr. Shimkus. And then finally, I'm not going to belabor it,
I think we'll get a chance to talk about the dismissal and all
that other aspect. If the accounts you portray are accurate, I
apologize, that's not the way you treat professionals in any
type of professional office, but in my background I did have to
fire a Federal employee once as a Reserve Officer and I know
that he hung on for a long time and finally we personally went
before a Federal Judge for the final departure ceremony, I
guess, or lack of a better word.
You did not exhaust all of your remedies in-house and my
question would be why not?
Mr. Martin. That may be a better question for counsel to
respond to.
Mr. Bilirakis. I don't know----
Mr. Shimkus. Mr. Chairman, if that's an improper question,
I'll just pull it and maybe it's not timely since there's
pending Court action.
Mr. Bilirakis. I think it's probably not.
Mr. Martin. I'll just try to make a long story very short.
I did file grievances within the EPA relating to the actions
taken against the Ombudsman function. They were never responded
to.
Mr. Shimkus. My concern would be it's better to fight when
you're there under the protections than to leave and try to
fight from outside and we've had a lot of great discussions
over the years. It's not a partisan debate. Under the current
administration we were fighting for your independence, as you
know and we will continue to do that. I just--it probably would
have been easier inside, rather than outside.
Mr. Martin. I understand that and the principal reason for
the resignation, under duress, was that to go over to the IG
would be in my view to cooperate and lie, that there could be
an Ombudsman there. And I wouldn't do that. I wouldn't betray
myself or the communities I worked for.
Mr. Shimkus. And I appreciate that, Mr. Chairman, thank you
for the time and I yield back the balance.
Mr. Bilirakis. I thank the gentleman.
Ms. DeGette?
Ms. DeGette. Thank you, Mr. Chairman. Just a couple of
questions. Mr. Martin, you testified that when you were the
Ombudsman, basically, it was you and then you had Mr. Kaufman
helping you out. Is that right?
Mr. Martin. He provided assistance for about a 2-year
period.
Ms. DeGette. And a lot of the sites that you investigated
involved complex scientific issues, didn't they?
Mr. Martin. Yes, they did.
Ms. DeGette. Did you ever have the budget to hire
scientific experts to prepare reports or analyses for you?
Mr. Martin. Not until the last 2 years.
Ms. DeGette. What sites did you--how many sites were you
able to get that expert assistance with?
Mr. Martin. Several. For example, the Shaddeck site being
one example in Denver. I asked our Environmental Response Team
in New Jersey to provide assistance and review the technical
merits of the record of decision.
Ms. DeGette. So that was an internal group within the EPA
that helped you do that?
Mr. Martin. Yes, but autonomous from the EPA Regions.
Ms. DeGette. I've got you. Did you ever hire outside
environmental experts?
Mr. Martin. I believe on one or two occasion, I did.
Ms. DeGette. And how many cases did you investigate during
your tenure as the EPA Ombudsman?
Mr. Martin. I think fully 36 cases were opened during my
9\1/2\ year tenure as Ombudsman.
Ms. DeGette. Okay, so I want to ask you a couple of
questions. One is if you had been given the budget for hiring
outside scientific experts on some of these sites, would that
have assisted you in your duties?
Mr. Martin. Yes.
Ms. DeGette. And did you ever ask for outside assistance?
Mr. Martin. yes.
Ms. DeGette. And what was the response of the Agency?
Mr. Martin. The budget solves the problem and the real
problem was that I had to ask.
Ms. DeGette. Why was that the real problem?
Mr. Martin. Well, because an Ombudsman should not have to,
if he's truly independent, or she's truly independent, ask the
bureaucracy for the resources needed to look into a matter.
Ms. DeGette. Did you feel that you from time to time had to
resort to sort of a bully pulpit tactic to get these issues
known because of lack of resources given to you by the Agency?
Mr. Martin. Well, I believe that it was necessary in the
circumstances, we just discussed, to hold public hearings at
which everyone who had a concern could come forward with their
own technical experts as the case may be, to aid in the truth
finding process.
Ms. DeGette. I think we'd all agree that was not always
maybe the best way to get the information that we needed, but
it was the only way you had, right?
Mr. Kaufman, who is sitting behind you, certainly agrees.
Let me--I mean you've had ample time to reflect on this
issue. Who do you think that--I mean aside from this
legislation we've got that we're all working on, hopefully,
with great rapidity, who do you think that the EPA Ombudsman
should report to?
Mr. Martin. I think ideally the Ombudsman should report to
Congress, the people's body.
Ms. DeGette. Directly to Congress?
Mr. Martin. Yes, with the ability to make recommendations,
collaterally, to the executive branch.
Ms. DeGette. Who do you think should fund the EPA
Ombudsman?
Mr. Martin. Congress.
Ms. DeGette. So you think the appropriation for the EPA
Ombudsman should come directly by a Congressional appropriation
and not through the Agency?
Mr. Martin. Yes, I do. In that deliberation, I've concluded
that it would be good to have the Ombudsman function exist much
like the former Office of Technological or Technology
Assessment, the OTA, which existed to provide more autonomous
or independent information and recommendations to the Congress.
Ms. DeGette. So what you're saying is your view is that
there is some precedent for an independent type of office like
this that would report and be funded by Congress?
Mr. Martin. Yes, very much so.
Ms. DeGette. I have no further questions and yield back the
balance of my time, Mr. Chairman.
Mr. Bilirakis. I thank the gentlelady. If any of you are
wondering why it looked like we skipped over her questioning,
it is because she is not a member of either one of these two
subcommittees and there are rules in that regard. She
understands, but she's been of invaluable assistance,
obviously, and it's great working with her, particularly on
this issue.
Bob, and I'm not asking you to reveal to us any of your
negotiating strategies or anything like that, but under what
circumstances would you be willing to come back? You said
something about returning and then leaving which means you're
thinking temporarily, right? You'd be willing to come back to
clean up the sites that have been assigned to you initially?
Mr. Martin. Finish the pending national Ombudsman----
Mr. Bilirakis. Finish pending. But under what
circumstances? You don't want to do it under the OIG. You're
certainly not going to want to do it under the prior office.
It's going to be under EPA because you're hoping to negotiate
with EPA. But you've already testified as to the question
regarding whether you think it ought to be even outside of the
scope of EPA?
Mr. Martin. I think ultimately Congress----
Mr. Bilirakis. Ultimately, right.
Mr. Martin. Ultimately, Congress needs to decide the
appropriate placement of the Ombudsman function.
Mr. Bilirakis. Yes.
Mr. Martin. That's bigger than me. What is within my power
is to come back and finish that which needs to be done. And----
Mr. Bilirakis. And to report to whom? And report directly
to whom? To the Administrator?
Mr. Martin. That could be done or perhaps the Assistant
Administrator for the Office of Solid Waste and Emergency
Response who has control and authority over these matters.
It could be done through a reinstatement of a position
description that was eliminated, or simply through a
contractual arrangement.
Mr. Bilirakis. Yes. Independent contract----
Mr. Martin. Without revealing all the details of a
potential negotiation.
Mr. Bilirakis. Okay, thank you. Heather, anything else you
want to finish up with here? We're about to finish.
Ms. Malinowski. I guess, all I can say is that in our
community, Mr. Martin and Mr. Kaufman are looked on as heroes
as is Congressman Bilirakis for bringing them there and
supporting the process and we just really hope that you can
make something out of this mess because we really need the help
and so do all the other communities that are depending at this
point on you. Thank you.
Mr. Bilirakis. Well, thank you so very much. If there are
no further members seeking time to ask questions, I want to
thank this Panel for their time, their patience and their
testimony. Obviously, we do want to request your availability
to respond to any written questions that we and staff may
provide to you.
I would announce that Panel 2 was supposed to be three
witnesses, but shrunk to just two. Mr. Bob Spurling of Denver,
Colorado was supposed to be a witness in this Panel, but he had
pressing business concerns that forced him to cancel his trip
yesterday. He has agreed to submit written testimony to our
committee and any member is welcome to submit written questions
to him for inclusion in the record.
All members, of course, have 5 legislative days to submit
opening statements for the record. Without objection, so
ordered. This hearing is now terminated. Our timing was
perfect. Thank you very much.
[Whereupon, at 12:15 p.m., the proceedings went off the
record.]
[Additional material submitted for the record follows:]
Prepared Statement of Robert L. Sperling
First, thank you for accepting my message in lieu of my being
present due to a business conflict. I am honored by your invitation to
testify and hope in few words to relate my experience with the National
EPA Ombudsman and the relationship of that office to this community.
I am a long term resident of Denver, an active member of the
business community and a citizen concerned about the environment. I
wish to talk principally about the need for an independent National
Office of the EPA Ombudsman.
I first encountered the office when I was involved with the cleanup
of the Shattuck site which was causing quite a stir in Denver. Shattuck
was and is an EPA Super fund Site in Denver that was contaminated with
radioactive radium in the early 20's and with uranium, thorium and
other heavy metals more recently. The contamination was so high it was
placed on the National Priorities List of only 3% of the nations most
contaminated sites.
What made Shattuck unique was that it is the only site along the
historic South Platt River publicly scheduled for cleanup. Then behind
closed doors, the decision that while the material from other sites was
removed the Shattuck waste would be buried on site. This was carried
out in spite of opposition by the community. Also, local regulations
and statutes were ignored along with objections by the Rocky Mountain
Low Level Waste Board. It was during this period that the National
Ombudsman's office was notified. That office informed the community
that a letter from an elected official was necessary for a review
process to be considered.
Letters were sent by several members of our Congressional
delegation and, I think, from Governor Owens. Within a matter of weeks
Mr. Martin and Mr. Kaufman came to Denver and toured the Shattuck site.
It isn't hard to find; located in Central Denver with a clear view of
the downtown skyline. Most disturbing is that 50,000 cubic yards of
radioactive soil sits astride two of Denver's fresh water aquifers, the
Denver and South Platt.
Although the community could not challenge the remediation process,
once it had begun, a number of questions were raised by the Ombudsman's
office. These with other events raised questions in the minds of
Representative Diana Degette and Senator Wayne Allard. It was the
inquiry of Martin and Kaufman with that of our elected officials and
the efforts of the Denver Post investigative environmental reporter,
Mark Eddy, that prompted--or I should say forced--the EPA to revisit,
review, reconsider, and finally REVERSE their decision and to remove
the waste.
It was Messers Martin and Kaufman who were the first EPA officials
to listen to the community, to inquire into their concerns, and to
respond in a manner we consider appropriate given all the facts
unfolding and the nature of the agency and its mission.
Our community strongly supports the role and mission of the EPA and
has repeatedly made this clear to their personnel at all levels up to
the Regional Administrator. Their role should be unencumbered by
political bias or corporate influence to address environmental risks
and act appropriately.
Some may denigrate the Ombudsman's activities in Denver, but I
believe that without the efforts of the Ombudsman's office and the Blue
Ribbon Panel put together by Region 8's Administrator to oversee a
second 5 year review our successful cleanup would not have come |
