Testimony of Danielle Brian, Executive Director of the Project on Government Oversight Regarding the Citigroup/Shattuck Superfund Site at the Public Hearing of the EPA National Ombudsman Robert Martin in Denver, Colorado

The Project On Government Oversight (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.

POGO is currently investigating attempts to stifle the independence of the National Ombudsman's office. POGO first became aware of a problem when citizens from Lake Township, Ohio brought the Industrial Excess Landfill (IEL), a Superfund site, to our attention. From the beginning, concerns about the handling of the site have been raised by citizens, public officials, and scientists. With each step, there have been questions raised about conflicts of interest, inappropriate testing methods, quality of site characterization, and adequacy of the methods of remediation selected for the site clean-up. Because of these issues, we worked to get the EPA National Ombudsman's office to review the site. It took repeated requests by POGO and U.S. Representative Tom Sawyer to get EPA Administrator Carol Browner and top EPA management to overturn their earlier decision to prevent Ombudsman Martin from reviewing the site. This documented interference by top EPA management, requiring the National Ombudsman to receive permission before considering an investigation, strikes at the heart of the independence of the office and the entire Ombudsman process.

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 subservient to the agency whose work he is meant to investigate, any of his decisions would become suspect, compromising the legitimacy and integrity of the office.

Our concern over this lack of independence led us to suggest to EPA top management on November 9, 1998 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 U.S. Ombudsman Association, environmental community, labor, industry, 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, EPA management stated "I do not find that such a review as depicted in your letter is necessary."

Apparently, while no public review is necessary, the EPA finds that a covert one is. Responding to recent complaints from Region 8 Administrator William Yellowtail and Deputy Regional Administrator Jack McGraw, EPA Deputy Assistant Administrator Mike Shapiro has recently convened a behind-closed-doors EPA committee on the National Ombudsman "problem." Why has an internal EPA management committee been created to change a process that is lauded by the public and their elected officials?

The attempts to undermine the independence of the Headquarters Ombudsman do not stop here. We have just learned that late last month, draft memos from EPA enforcement official John Winder, Region 8 Acting Ombudsman Sonya Pennock, and Region 5 Ombudsman Douglas Ballotti (where IEL is located) were circulated for review to urge EPA top management to limit the National Ombudsman activities as a result of the Citigroup/Shattuck investigation. We strongly object to EPA management's willingness to respond to complaints from one of the subjects of the ongoing Citigroup/Shattuck Superfund investigation.

It is fairly clear to us why the office of the National Ombudsman has come under constant attack by EPA top management. It is because the Ombudsman has been effective in doing exactly what an Ombudsman is supposed to do - to investigate complaints of inadequacies in the EPA's handling of Superfund sites and to suggest remedies to the problems it finds. Rather than allowing him to complete his work, however, the agency is trying to revise the procedures governing the Ombudsman program.

It is definitely time for a change, but not in the National Ombudsman's office. There is already guidance on the books regarding how an Ombudsman Office should function, and that guidance comes from the American Bar Association and the United States Ombudsman Association. According to the Ombudsman Association, an Ombudsman's office should have:

• "independence of the Ombudsman from control by any other officer, except for responsibility to the legislative body";
• "freedom of the Ombudsman to investigate any act or failure to act by any agency, official, or public employee, and";
• "discretionary power to determine what complaints to investigate and to determine what criticisms to make or to publicize."

The complaints against the Citigroup/Shattuck Superfund remedy have not abated for almost a decade. The repeated complaints from elected officials and the affected public have continuously been ignored by Region 8. The Ombudsman investigation of the Citigroup/Shattuck case, and this open and public hearing, are occurring because of the strong request of U.S. Senator Wayne Allard, Governor Bill Owens, Mayor Wellington Webb, U.S. Representative Diana Degette, and citizens. Until the National Ombudsman's involvement, there had been no open process in dealing with the Citigroup/Shattuck site since it was listed on the National Priorities List, and these officials and citizens have had no avenue for independent review at EPA.

Senator Allard and his fellow elected officials have demonstrated their support of the vital role that the Headquarters Ombudsman has played in working toward a safe resolution of the Shattuck site. We look forward to working with you, Senator Allard, and your colleagues, to help protect the credibility and independence of the critically important National Ombudsman Office so that this office can function in the future with no further interference.