Comments on the "Draft Guidance for the National Hazardous Waste and Superfund Ombudsman and Regional Superfund Ombudsmen Program"
These comments are respectfully submitted by the Project On Government Oversight (POGO). POGO is a non-partisan non-profit organization that, since 1981, has worked to investigate, expose, and remedy abuses of power, mismanagement, and subservience to special interests by the federal government. POGO's goal is to improve the way the government works by revealing examples of systemic problems, offering possible solutions, and initiating change.
This entire draft guidance is severely flawed and needs to be withdrawn. The Ombudsman program has been remarkably successful at getting the EPA to review its decisions and correct its mistakes under the current Ombudsman Handbook, American Bar Association (ABA) guidelines, and United States Ombudsman Association (USOA) guidelines. The Ombudsmen should be allowed to operate as they have over the past nine years under the above-mentioned guidelines.
The problem lies not in the existing rules, but in bureaucratic interference into the Ombudsman program. The need to disallow inappropriate interference became evident to us three years ago when we were brought in by a community group to intercede with the EPA on their behalf. They had attempted to gain a National Ombudsman review of their Superfund site, the Industrial Excess Landfill in Ohio. Their request had been denied - not by the National Ombudsman, but by the EPA. Our request for a National Ombudsman review of the site was also denied, as was that of a U.S. Representative. It took several attempts and almost an entire year before the Ombudsman was allowed to begin an inquiry. This interference is only one example of several where the National Ombudsman was denied EPA permission to conduct an investigation into citizen complaints. Acting Assistant Administrator (AA) Michael Shapiro may state that the "EPA recognizes the importance of an Ombudsman being and appearing to be independent from the organization he/she is investigating," and that the EPA does "not select which cases the Ombudsman will take, nor direct how the Ombudsman will investigate a complaint," but the reality is quite different.
This issue is not something that should be dealt with through new guidances. Rather, the inappropriate interference can be addressed by having the National Ombudsman report directly to the EPA Administrator. This does not preclude the AA of OSWER from acting on Ombudsman recommendations. It does, however, prevent the conflict of interest produced when an investigator must not only ask permission of and report to the head of the department he is investigating, but have his job performance evaluation written by that person. For example, the decisions of the present Acting AA Shapiro, who completes the Job Performance Rating for National Ombudsman Robert Martin, are being investigated by the Ombudsman as they relate to the WTI Ombudsman case in Ohio and the Marjol Battery Ombudsman case in Pennsylvania. As Director of the Office of Solid Waste, Michael Shapiro was a key decision-making official on issues that affected these two cases. Acting AA Shapiro is the EPA official who signed this draft guidance and undoubtedly will be signing the final guidance. If for no other reason, this guidance should be withdrawn because of the conflict of interest inherent in Acting AA Shapiro proposing this guidance at the same time that he was being investigated by Ombudsman Martin and his Chief Investigator Hugh Kaufman.
If the EPA still feels the need for a revised guidance, there are several issues that must be addressed. The first is the manner in which this guidance was produced. In November 1998, POGO wrote to EPA's Acting Deputy Administrator suggesting that a public process and working group be initiated to develop recommendations for improving the independence of the National Ombudsman's office. We recommended that representatives from the USOA, industry, environmental community, labor, good government public interest groups, the EPA, the National Ombudsman's office, members of affected communities and others be included in this working group. In a response to our letter, however, then-Acting AA Timothy Fields stated "I do not find that such a review as depicted in your letter is necessary."
Apparently, while no public review was necessary, the EPA found that a covert one was. Responding to complaints from Region 8 Administrator William Yellowtail and Deputy Regional Administrator Jack McGraw, then-Deputy Assistant Administrator Mike Shapiro convened a behind-closed-doors EPA committee on the National Ombudsman "problem." The workgroup, while including representatives from OSWER, the Regional Ombudsman program, the Office of General Counsel, the Office of the Inspector General, and the Office of Enforcement and Compliance Assurance, did not include a representative from any of the constituencies affected by the Ombudsman's work nor, incredibly, from the National Ombudsman's Office itself. After the well-documented and well-publicized tension between Regional and National Ombudsmen's Offices, empaneling representatives from one side of the issue, but not the other, gives the appearance of stacking the deck.
If you decide to pursue this new guidance, rather than abandoning it as we recommend, you should begin by convening a working group that is truly representative all of the stakeholders in this issue. Members from those groups that we proposed in 1998 would be a good start. The working group should be assembled in an open manner and should be chaired by the National Ombudsman, not by EPA management.
The other issues that must be addressed are flaws found within the draft guidance itself. These flaws all undermine the primary essential characteristic of an Ombudsman - independence. The very essence of an Ombudsman is to stand apart from the agency and to perform independent investigations. Discretion over which cases an Ombudsman looks into, without having to ask permission from anyone within the organization, is essential for the effectiveness of that office. Should the Ombudsman become controlled by the agency whose work he is meant to investigate, his recommendations and findings of fact would become suspect, compromising the legitimacy and integrity of the office.
According to the Acting AA Shapiro in the Federal Register notice, the "main objective in issuing this guidance is to improve the effectiveness of [the Ombudsman] program by giving the Ombudsmen and those who may contact them a clear and consistent set of operating policies and expectations."
At a cursory glance the guidance appears innocuous enough. Upon closer inspection, however, the more insidious aspects of the guidelines become evident. The entire document, from the manner in which it was drafted to the language itself, serves to undermine the independence of both National and Regional Ombudsmen and to subordinate the National Ombudsman to the Regional Ombudsmen (who, currently, are not true ombudsmen as defined by the USOA).
In describing Independence, the first of three Operating Principles, the guidance states that "[t]he Ombudsman will be free from actual or apparent interference in the legitimate performance of his/her duties. The Ombudsman has the autonomy to look into any issue or matter consistent with this guidance." It would be a vast improvement if true independence for the Ombudsman's Office were to become codified. What is important to note, however, are the phrases "legitimate performance" and "consistent with this guidance." These two phrases place severe limits on what issues or matters the Ombudsman may look into while still appearing to grant complete independence. The limits on what is the "legitimate performance" of Ombudsman duties and what is "consistent with this guidance" are detailed throughout the rest of the document.
Up until now, the National Ombudsman has functioned with the underlying policy that the public's business should be done in public. The requirements of confidentiality in this proposed guidance appear to be a ruse to hide the fact that the National Ombudsman will no longer be allowed to act in a public way as he has done over the past nine years.
The very first example of limits on the independence of the Ombudsman's Office comes not two paragraphs later in the description of the third Operating Principle, Confidentiality. The guidance states that the "Ombudsman must always act with discretion and tact. This requires the Ombudsman to conduct his/her work without publicity or speculation and not reveal without consent what he/she learns from individuals. Any records pertaining to an inquiry must be managed to avoid unnecessary or inappropriate disclosure.
The Ombudsman will practice confidentiality up to the point in which a request is made for disclosure."
This is not what is meant by confidentiality when discussed by the USOA. This interpretation turns the characteristic on its head. According to Dean Gottehrer who is the former president of the USOA, former regional director of the State of Alaska Ombudsman's Anchorage office, and an international ombudsman consultant; and Michael Hostina who is a former deputy Ombudsman of the State of Alaska and director of the Fairbanks Office, and is currently an attorney with the University of Alaska Fairbanks, the confidentiality characteristic does allow the investigation process to "proceed without publicity and speculation," should it need to.
It also allows, however, the Ombudsman to "have the discretion to make investigations public along with other information that does not violate confidentiality requirements in law or disclose the complainant's identity without authorization." Confidentiality is an essential, but flexible tool meant to aid the Ombudsman in his investigations. This guidance has made it into an inflexible requirement that serves more to hide an investigation than to help it.
Another example of the infringement upon the independence of the National Ombudsman is the statement that the "Ombudsman has the discretion either to accept [a complaint] or decline to act. Among the reasons that the Ombudsman may decide not to investigate a matter are the following:
...the workload necessary to address this matter will exceed available resources..."
It's not hard for the workload necessary to address a matter to exceed the available resources when those resources are limited to the Ombudsman, one full time investigator, and three office staff, as is currently the case in the National Ombudsman's Office. It is even easier to exceed those resources when those limited resources are not under the discretion of the Ombudsman but can be removed at any time, as was recently done by former-Assistant Administrator of OSWER Timothy Fields. Hugh Kaufman, the Chief Investigator for the National Ombudsman was prohibited from investigating Ombudsman cases on December 14, 2000 without either the knowledge of or consent from the Ombudsman. Because there is an EPA hiring freeze, the only permanent EPA official working on the twenty National Ombudsman cases is the National Ombudsman, Robert Martin.
This guidance states that the National Ombudsman must consult with the Regional Ombudsman before conducting an inquiry "that is primarily related to one Region" and that if the two do not agree on who should handle the inquiry, the AA or the DAA will decide. This effectively subordinates the National Ombudsman to the Regional Ombudsmen, as there are very few instances when a Superfund or hazardous waste site is either inter-regional or national in scale.
This guidance further states that before initiating any inquiry, the Ombudsman must determine that he has the resources available to him to "handle the concerns thoroughly and in a timely manner" and that if an Ombudsman "determines that convening a public meeting would benefit an inquiry, he/she must consult with the AA or DAA of OSWER or appropriate RA or DRA." These strictures are appalling enough, but the most egregious guidance is in the concluding section of the document. It states that "[c]onsistent with this guidance, when the National Ombudsman is conducting an inquiry, he/she shall consult with, inform or get the concurrence of the Assistant Administrator or Deputy Assistant Administrator of OSWER as required by this guidance. When a Regional Ombudsman is conducting an inquiry, he/she shall consult with, or get the concurrence of the appropriate Regional Administrator or Deputy Regional Administrator."
Although not addressed in the draft, if this new guidance is to be pursued, the status of the Regional Ombudsmen should be tackled. They are currently in a position of conflict of interest, being employed for part of their day as an Ombudsman and for the rest of their day as an employee of the very people whose work they are supposed to be investigating. One solution would be to redesign the Regional Ombudsman program. The Regional Ombudsmen must be full-time Ombudsmen and should report to the National Ombudsman. Each program would then be supporting the other in its work.
This guidance is an outrage. Because Acting AA Shapiro published these guidelines for comment in the Federal Register at the same time that his decisions were under investigation by the National Ombudsman, the agency has no alternative but to withdraw the guidance. The EPA may have consulted advisories and guidance documents on the role of an ombudsman from other organizations, including the American Bar Association and the United States Ombudsman Association, while drafting this document, but they appear to have all but ignored their intent. This guidance, far from improving the effectiveness of the Ombudsman program, serves to destroy its most vital characteristic - the independence of the Office.